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Apple's motion to include Snow Leopard in Psystar case denied - Page 3

post #81 of 89
Quote:
Originally Posted by bwik View Post

Their business model today is to provide OS X compatible client machines. Not Macintoshes. They say it up front on their site. They do not sell Macs.

They can try to tell their story any way they like on their web site, with any select and meaningless buzzwords they choose -- but that does not change what they are doing. They are attempting to sell Macintosh computers, a proprietary device defined as OSX plus hardware, not either one by itself.

They also can't alter the assertions they have already made in court. They have claimed, in court filings, to be participating in a "Macintosh compatible computer market." Since no such market in fact exists, it is clear that they are trying to create one.
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post #82 of 89
Quote:
Originally Posted by Dr Millmoss View Post

First, how does the "rate" they paid make any difference? Second, we don't actually know how much they paid. Apple demanded these records in discovery but Psystar claimed to have lost them. The difference is that they are not simply transferring ownership, they are installing the software on their hardware first. It's no more than a theory that this protected under first use doctrine, which was created to allow owners of copies of copyrighted products to sell them to someone else, not to allow someone to trade on copyrighted materials.

I'll repeat my question: If they are, indeed, the legal owners of the disc containing copyrighted material, please cite the law or precedence that says that first sale doctrine would not apply to them.

You are suggesting that somehow, for the purposes of copyright infringement, there's a distinction between a company buying a product for the purpose of commercially reselling it, versus an individual buying a product, using it for a while, then selling it second-hand at a later date. I suggest that there is no such distinction, and I have asked you to provide a citation to prove me wrong. So far you have sidestepped the issue, rather than actually answering my central point.

Until you can do otherwise, I will assume it's because there is no such precedence, and case law makes no such distinction.

Quote:
This is a HUGE fallacy. They are in fact attempting to sell Macintosh computers. If that was not the case, then they would not even bother. Psystar can't even claim otherwise with a straight face, if only because they attempted to sue Apple under antitrust law for preventing them from doing that very thing!

So exactly which aspects of selling a Macintosh computer (as you choose to define it -- you have not proven that your definition is the "correct" one) require Apple's permission?
- The trademark? Absolutely, it requires permission. If they are using any of Apple's trademarks in infringing ways, then they must cease doing so, or revise their practices to make their use non-infringing. What constitutes infringement of their trademark? Certainly, there do exist situations in which it is possible for me to use another company's trademark, properly cited, without the competitor's permission. For example, when making a factual statement about system requirements: "This program is designed to run on Microsoft Windows XP Service Pack 2 or higher, or Mac OS X 10.4.11 or higher." Does Psystar's use of Macintosh-related trademarks constitute infringement? That discussion deserves a whole thread of discussion of its own.

- The copyright? I stand by my opinion that copyright law, on its own, may or may not prohibit it, depending on the legal status of the copy of the software that's actually been installed on the hard drive with respect to USC Title 17 Section 117. (By the way, the interpretation of the word "adaptation" as I have raised it thus far in this thread has nothing to do with the DMCA -- the law and associated court precedent in question had existed for around a decade, at least, before the DMCA came along.) Therefore, in order for it to be mandatory to obtain Apple's permission, it follows that such a requirement most likely arises out of the existence of some additional terms above and beyond those imposed by basic copyright. Such as the terms imposed by an EULA.

- Other aspects I haven't named here?
post #83 of 89
Quote:
Originally Posted by bwik View Post

I recommend you Google 'OS X Leopard' and get back to me. Full license copies were retail boxed. I know because I bought one.

I bought one too, and nowhere on the box did it say anything about granting me a license to install the software on a previously unlicensed computer. Those were not full licenses -- they were upgrade licenses too. What evidence do you have to the contrary?

The license required you to install the software on an Apple-branded computer, and any Apple branded computer that would have been capable of running it would have already come with an existing full license to run OS X -- from which you were upgrading by using the retail boxed version of Leopard.
post #84 of 89
I am not a lawyer and don't pretend to be one. However everything that I have read about first use doctrine applies to consumer use and not to making copies for commercial use. And for clarification, by commercial use I mean in trade -- better known as making money from the duplication. Can you find any information to dispute that conclusion, to support your claim? I think you can't, but that doesn't seem to stop you from insisting that I do so.

The other argument you advance in defense of Psystar is to my mind, obviously bogus. By your theory, if you can buy one part of a proprietary product, you are entitled to manufacture and sell the entire product. Try applying this rather fanciful theory to other proprietary products and you will see how it effectively annihilates intellectual property rights for a broad range of products, a great many of which are combinations of proprietary and non-proprietary pieces.

A Mac is the combination of hardware and the software, neither of which are a Mac on their own. Just because it's possible to buy or assemble some of the parts of a Mac does not give you the right to manufacture and sell Macs. This is the point you seem to be missing (as do a great many people who discuss this). This is a big issue whether or not Psystar uses Apple's trademarks in their advertising (which in fact they do) because they have no right to trade on Apple's patents or copyrights without Apple's permission, which of course they have not got. The key word here is "trade."

And again, they painted themselves into a tiny corner when they claimed to have the right to participate in a "Macintosh compatible computer market," a market which does not exist.
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post #85 of 89
Quote:
Originally Posted by lfmorrison View Post

So exactly which aspects of selling a Macintosh computer (as you choose to define it -- you have not proven that your definition is the "correct" one) require Apple's permission?
- The trademark? Absolutely, it requires permission. If they are using any of Apple's trademarks in infringing ways, then they must cease doing so, or revise their practices to make their use non-infringing. What constitutes infringement of their trademark? Certainly, there do exist situations in which it is possible for me to use another company's trademark, properly cited, without the competitor's permission. For example, when making a factual statement about system requirements: "This program is designed to run on Microsoft Windows XP Service Pack 2 or higher, or Mac OS X 10.4.11 or higher." Does Psystar's use of Macintosh-related trademarks constitute infringement? That discussion deserves a whole thread of discussion of its own.

By selling a PC with OSX installed, Psystar is using OSX as a selling point for their PC's without Apples permission. Thus violating Trademark laws. I don't even think that Psystar can sell a PC that don't have OSX installed and only make the claim that it will run OSX on their ads. OSX in itself is a trademark and can not be used to advertised your product without permission from Apple. Now if some one called up Psystar, they can tell the person that it will run OSX. This would not be advertising. But it might constitute advertising if a line in the ad tells people to call Psystar to inquire what OS their PC's will run. Psytar can't even hint that it will run the OS from a "fruit" company in their ads, without violating Trademark law.

There are many PC's made by Dell, HP and Sony that will also do exactly what a Psystar PC does. You only need to go to the Hackintaosh site to find the list. But you don't see Dell. HP or Sony advertising that certain PC's by them will also run OSX (with a liitle work). That's because they would still need Apple's permission to advertise such a claim.

It's like if Apple were to sell a "U2 iPod" that contains all of U2's songs, without U2 permission. Even if Apple pay U2 for all the songs. Apple can not market a "U2 iPod" without U2's permission to use the name "U2" along with the iPod. Apple can not even sell this iPod without calling it a "U2 iPod". The fact the iPod contains all of U2's songs, that were legally paid for, is enough to constitute using U2's trademark to market your product. This is a far cry from selling an empty iPod but stating that the iPod can hold and play all of U2's songs.

The same goes with Apple trying to market a "Beatles" iPod. Apple can not market a special "Beatles iPod" that contains all of the remastered Beatles CD"s. Not even if Apple includes all the original CD's with the purchase of the "Beatles iPod". Apple would be using the trademark "Beatles" and their copyrighted songs to market their iPods. Which would be a violation of Trademark laws if they did not obtain permission from the Beatles to do so.

The reason why these are Trademark violations is because it makes it appears that U2 or the Beatles are endorsing Apple's iPods by allowing them to use their name or music on it. And this may not be the case. By marketing a PC that runs OSX, consumers may think that Apple approve of their OSX running on these PC's. Which they don't.
post #86 of 89
Good summary. Note, no mention of the EULA. All of this is a problem EULA or no EULA, since the fundamental issue is Psystar trading on Apple's intellectual property without permission.
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post #87 of 89
Quote:
Originally Posted by bwik View Post

Their business model today is to provide OS X compatible client machines. Not Macintoshes. They say it up front on their site. They do not sell Macs.

Has anyone here actually bought a machine from Psystar? I am considering that, or building a Hackintosh. We just can't afford another mac pro but need one. There are so many reports on the web that indicate that Psystar is shady, but no reports that I can find that they are a good company, friendly, easy to deal with on purchase. The cost for to build vs buy seems about the same, so wondering what to do...
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post #88 of 89
Quote:
Originally Posted by Phoenixstudios View Post

Has anyone here actually bought a machine from Psystar?

No. In all the Psystar threads on this forum nobody has claimed to have bought one... not even their stoutest defenders!


Quote:
There are so many reports on the web that indicate that Psystar is shady, ...

Yes there are.

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...but no reports that I can find that they are a good company,


No there aren't.

Quote:
The cost for to build vs buy seems about the same,

Quote:
so wondering what to do...

See above.

Seriously, this time next year Psystar may cease to exist. At the very least upgrading a Psystar box could be problematic.

Buy a second hand or refurbished Mac Pro or...
Buy a (Hackintosh compatible) Dell or HP... or...
Build your own.

Good luck.
post #89 of 89
Quote:
Originally Posted by piot View Post

No. In all the Psystar threads on this forum nobody has claimed to have bought one... not even their stoutest defenders!




Yes there are.




No there aren't.





See above.

Seriously, this time next year Psystar may cease to exist. At the very least upgrading a Psystar box could be problematic.

Buy a second hand or refurbished Mac Pro or...
Buy a (Hackintosh compatible) Dell or HP... or...
Build your own.

Good luck.

Hi piot, thx for all of that! I guess we will just build our own then, it does not look so hard. Our biggest problem is getting the right parts
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