Originally Posted by Dr Millmoss
You don't think I'm disagreeing with what, exactly?
The centrality of the license agreement, which is precisely the terms under which Mac OS X can be used, because the license is what you're paying for--well, OK, except for the 50 cents it costs Apple for the CD and the jacket. That is what determines who can use Mac OS X for what when, at least according to Apple.
Conventional copyright law has always relied on the fact that the copyrighted material is distilled into the medium, so there's no need to protect the font that a book is printed in, and no illusion that what you've bought is one copy of one book rather than the rights to the manuscript. Software is not similarly baked into any medium in any significant way, and so the license agreement exists. Essentially, there is no longer any cost barrier to piracy, and I use the word in the traditional sense of unauthorized, large-scale publication.
The analogy is intended to be direct: Instead of buying a collection of papers that happen to have a manuscript printed on them, and whose use is implicitly restricted by its physicality, you're buying a CD that happens to have software printed on it, and the use of the software is explicitly restricted by the accompanying license agreement. I have a lot of problems with the implementation, but I have sympathy for the effort.
Your argument has more problems. It is literally impossible for me, or for anyone, to not make money off the work of other people. Shoenberg could not have done what he did without Brahms. Apple's design language comes straight out of Germany in the 1960s. Copyright exists to secure for creators and publishers some ability to be rewarded well enough for their work, but this is intended to be limited. Otherwise, the creators of Ten Things I Hate About You
would be paying royalties to the estate of William Shakespeare. There is, to quote a certain someone, nothing new under the sun.
So the real argument rests on the legal protections afforded to created work, not any inherent right. There are two protections afforded to software: The by now indisputable right of the copyright holder to determine the terms of the first sale, and the disputed enforceability of the EULA. Psystar is clearly hoping for the former, and Apple for the latter. I am torn here, because as much as I think the EULA is broken by design I think there needs to be something like it. But it should be known to the buyer before they pay up and before they take the CD out of the packaging.
Originally Posted by Dr Millmoss
Psystar's entire argument for themselves boils down to this: Because it it technically possible to built and sell Macintosh computers, we should have the right to do so. Extend this argument to any other copyrighted, trademarked or patented product and it would look as plainly ridiculous as it is, but for some reason, a lot or people are snookered into accepting it, for no other reason than the product in question is a computer. They think Apple should be forced into adopting Microsoft's business plan, whether they want to or not.
Now you're confused. Copyright, trademark and patent law are totally different things. Until fairly recently in historical terms it was entirely possible to build your own work on someone else's copyrighted work. Even now there are arrangements worked out: if my band wants to cover a song, we pay the writer a set royalty per copy pressed, record it, and print it. (We also ask for permission as a courtesy.) This liberality allows songs to be reimagined in ways that the original composer would never have thought of. Trademarks are merely intended to unambiguously refer to a product. As long as they do, any competitor who wishes to use them may do so. Patents actually protect systems and designs, so they would be relevant to your would-be computer maker if they were building systems using patented designs without paying the patent owners.
The fact is that if I want to build a computer, I can buy parts that contain patented systems and pay the patent owners through the purchase price. I can use any relevant trademarks to identify e.g., the CPU. And if there are some copyrighted manuals or instructions I want to include, I can buy them and include them, and the copyright holder is paid. If I sell the computers, I'm making money off the work of hundreds of thousands of people, all legally.
What's the exception? The software EULA. That's why it's at issue. If the judge rules that the EULA isn't valid, and the doctrine of first sale holds, then Apple will have received its fair price of $129 and Psystar will have its system. I'm not sure that's what will happen, but EULAs are on fairly shaky legal ground and because of the way they're done they should be. That's not Apple's fault, but it's true.
And incidentally, this is not Microsoft's business model. Microsoft's business model is all about discounted bulk OEM licensing in order to squeeze out competitors and saturate the market. Psystar would be paying far more for Mac OS X than Dell does for Windows 7 whether the judge rules in their favor or not.
It seems that this will all be moot anyway, since apparently Psystar has been sloppy with their financial documents.
 prior to 1988, this would have been 'published'.