It could be so easy for Apple: Call the upgrade a upgrade and everything is dandy . (dreyfus2 pointed that out several times).
As we (not Joe Six Pack) know the retail box is a upgrade, why is Apple shy to call it exactly that.
If that is not enough: create a installer that is looking for a previous installed Mac Os or if it can't find one is asking for a original OS Disk that has been supplied by Apple with your computer.
There is no need for serial numbers and activation routines. And as seen with iWork I would think Apple doesn't go that route.
But asking for less government when making profits, and for more government when having problems seems to be quite fashionable.
How very true. As exemplified by the song of the Wall Street shysters: 'De-regulation! De-regulation! De-regulation!'. Crash! 'Bail-out! Bail-out! Bail-out!'
I have purchased only on PB, and if it had worked straight out of the box, I will have been happy.
But instead, I had to send it for repair 3 times. By the time the last repair was made, the 1 year warranty was about to expire, and was forced into purchasing Apple care, as I had lost confidence in their repairs. +£350. I personally think that there is some sort of strategy in it. They erased some of repair's records so I couldn't claim a new machine either.
As much as I like the OS, I will not purchase another Mac and spend a year going to the repair shop, paying extra to jump the 1 month queue every time. Please do tell me that I am an exception, every time I went to the repair shop there were people collecting from repairs and 1 month waiting queues probably means lots of repairs. And this is only a local Apple repair centre . The forum is full of people having trouble too, often hardware related. So if I had the alternative of hardware, this is something I will consider.
On another note, reading the never ending list of articles about Apple ripping off others technology, I believe that they do not have the moral ground to make any claim.
Form a German point of view, US-style EULAs seem to be rather odd in general. This is why:
When I buy something from a shop, I impicitly enter a contract with the shop owner. So I hand over the money and he gives me the product. Both parties (me and the shop owner) have voluntarily entered the contract and when I leave the shop, the deal is done.
Now when I am at home trying to install the software, a THIRD PARTY, in this case Apple, with whom I have no contractual relationship whatsoever, says I have to agree to another contract with them.
A contract is only valid, if both parties enter into it VOLUNTARILY. Clearly this is not the case if this third party Apple says: "Agree to this contract or otherwise drive around the city for an hour and revoke the contract with the shop owner", which is already perfectly done and finished. Besides, the shop owner may well say: "all sales are final and we don't do returns". What am I supposed to do in this case? Contracts (in this case between me and Apple) at the expense of a third party (in this case, the shop owner) are invalid.
You may say that the EULA is an extension to the deal with the shop owner. But this would also be invalid, because after a contract is entered, one party cannot unilaterally change the term of the contract.
And of course, all parts of the contract must be clearly visble to me at the time I enter the contract with the shop, otherwise they are invalid, too. This certainly does not include a short notice written in small type on the side of the box, saying there are more terms of the contract about to come after the deal (with the shop) is done.
This issue has always puzzled me about the US law. Please explain to me why US lawyers still find EULAs applicable.
It's quite clear that EULAs are not worth the 'paper' they're written on, whether in the US or Germany or anywhere else. They are little more than an attempt to intimidate consumers to not do things that a company doesn't want them to do. If they ever went to court they would never hold up. So, if Apple thinks they can shut down clone makers on the basis of the EULA they are seriously mistaken. It just won't happen. The Apple OS X EULA is as ridiculous as buying a car and then being told that you have implicitly agreed to a contract that means you're only permitted to drive the car on highways with even numbers.
If Apple sell OS X to the public in retail stores then there's nothing they can do to stop people (or companies) who buy it installing it on whatever they like (even if that includes subsequently re-seling it). It's not stealing or piracy or anything else. Clone makers who buy legit copies of OS X are not "making a buck on the back of Apple's IP". That's as absurd as suggesting that Dell are making a buck on the back of Microsoft's IP because they bundle Windows (which they have legally bought, just as the clone makers buy legal copies of OS X).
I really don't understand what all the fuss is about. If Apple want to restrict OS X to only their own hardware (as they are perfectly entitled to do) then they should not sell it to the public in retail stores. They don't sell the iPhone OS in retail stores do they? An easy solution would be to follow the iPhone model. Macs could be sold with a copy of OS X bundled in flash memory and after that all upgrades are done over the net. The price of flash memory and the speed of broadband makes this a perfectly feasible solution. For older Macs that don't have the flash OS they'd have to take them to an official Apple retailer to upgrade the OS (as used to be the case for cellphone firmware upgrades before over-the-air upgrades became commonplace).
Now when I am at home trying to install the software, a THIRD PARTY, in this case Apple, with whom I have no contractual relationship whatsoever, says I have to agree to another contract with them.
A contract is only valid, if both parties enter into it VOLUNTARILY.
If you wrote a novel, and I decide to produce it into a movie, we enter into an contractual agreement. It doesn't matter which country(s) we're coming from (except that they both belong to the WTO). Our agreement reduces to two items: terms and money. Sometimes the 'terms' release 'creative control' to the purchasers, sometimes the author retains some or all of it. In either event, you have to abide by those terms (usually the money reflects the terms). You never 'own' the product, just the rights to use it in a specified way.
You DID enter into an agreement with APPLE, and you did do it VOLUNTARILY. You can't plunk down money and say 'I don't give a frozen rat's a$$ what the other side wants'...maybe with a chair or desk, but not intellectual property...different animal. APPLE spent years and billions (literally) developing OS X. It purchased its rights from NextSTEP (Job's former business) outright, and abides by the BSD UNIX terms from under which the kernel comes. Just because you've purchased a DVD copy of a movie doesn't mean you can repackage it in a thumb drive and send it along with some deal you've cooked up as a third party business anymore than I can rip the cover off your published book and publish it online in a digital form. It's the CONTENT that's copy protected, not the physical item itself.
Doesn't matter. For all the scary sounding legalese in a typical EULA, they stand up in court only when they are used to combat piracy (which is already illegal so whether the EULA actually mattered in those situations is debatable.) It has been established now many times in court that a EULA is not a valid contractual agreement between the software creator and the customer.
...
Don't be fooled by this stupid EULA argument. They are not viewed by courts as a legitimate contract.
Enforcable in the US.
ProCD v. Zeidenberg
EULAs can't strip away certain rights...like first-sale or reverse engineering...maybe
Softman v. Adobe (2001) ruled against EULAs (District Court for Central District of California)
However:
Davidson & Associates v. Internet Gateway, Inc (2004) (Blizzard v BNetD) upheld a click wrap license in the 8th circuit:
"The court upheld the EULA and TOU as enforceable contracts, rejecting various arguments by defendant that a contract was not formed through the click-thru process. Even though the EULAs and TOU were not on the physical packaging for the PC game, the court found that the terms were disclosed before installation to the games and access to Battle.net were granted, and express assent was obtained through the click-thru process. The court also held that the defendants’ waived their fair use right to reverse engineer by entering into the license agreement, and rejected the notion that this contractual waiver constituted copyright misuse. "
What is even more interesting is that Blizzard argued that first sale doctrine is only triggered when a sale occurs and not when a licensing agreement is enacted. I don't know if this made the cut.
--
As for this particular case, it really depends on limitations on exclusive rights for software under german law. It is fairly clear that none of the participants in this thread are:
a) lawyers
b) german lawyers
c) german IP lawyers
It depends on what limits on exclusive rights that german copyright law has. The US has section 117 that provides US consumers with certain rights however, as seen above, contract law and licenses can permit US consumers to click away some of these rights (reverse engineering) but perhaps not others (first sale doctrine).
Just because you've purchased a DVD copy of a movie doesn't mean you can repackage it in a thumb drive and send it along with some deal you've cooked up as a third party business
Oh yes you can, as long as you include the original DVD in the package as well, just as the clone makers are doing with OS X.
Quote:
anymore than I can rip the cover off your published book and publish it online in a digital form. It's the CONTENT that's copy protected, not the physical item itself.
No, but that's not analogous to what the cloners are doing. What you can do is rip the cover off 'my' published book (that you presumably purchased) and then frame it, or 'repackage' it in some way, and then sell it on, just as the cloners are doing with OS X.
Oh yes you can, as long as you include the original DVD in the package as well, just as the clone makers are doing with OS X.
It's pretty clear given your EULA statement being factually wrong that your opinion on this matter is likely very flawed.
Quote:
No, but that's not analogous to what the cloners are doing. What you can do is rip the cover off 'my' published book (that you presumably purchased) and then frame it, or 'repackage' it in some way, and then sell it on, just as the cloners are doing with OS X.
Except it isn't the cover of your book but a copy of the cover of your book.
Oh yes you can, as long as you include the original DVD in the package as well, just as the clone makers are doing with OS X.
No you can't. The laws allowing you make a backup do not let allow to distribute your backups, even if you are sending them along with the original media.
No you can't. The laws allowing you make a backup do not let allow to distribute your backups, even if you are sending them along with the original media.
Possibly, but it's a moot point. The cloners aren't distributing a backup, they're just distributing the installed OS and the original media. And if that was all that mattered then the cloners could just distribute the shrink-wrapped OS X without pre-installing and their customers would have the pretty painless task of installing the OS themselves. The end result is identical either way.
It could be so easy for Apple: Call the upgrade a upgrade and everything is dandy . (dreyfus2 pointed that out several times).
As we (not Joe Six Pack) know the retail box is a upgrade, why is Apple shy to call it exactly that.
If that is not enough: create a installer that is looking for a previous installed Mac Os or if it can't find one is asking for a original OS Disk that has been supplied by Apple with your computer.
There is no need for serial numbers and activation routines. And as seen with iWork I would think Apple doesn't go that route.
Perfect solution! I was going to suggest it myself, but you beat me to the punch.
This would make it crystal clear that they're not selling you the OS, only an upgrade to the existing OS. I wouldn't make it much more technically difficult to install it on generic PC's, since there's no point in going after the Hackintosh crowd. Psystar and this German company are the real targets Apple needs to go after.
This whole question of whether EULA are valid or not is a non-sequitur. Those distributing machines with OS X are violating Apple's copyright on OS X by selling hardware with *modified binaries* of OS X, including the updates provided. The fact that they're distributing such unauthorized distributed works, not to mention distributing them for a profit, is a clear violation of Apple's copyright. It's totally irrelevant that they paid for a shrink-wrapped copy of OS X, since they're not reselling that copy as-is. Otherwise, one could argue that the doctrine of first sale would apply.
The prohibition against modifying OS X does not apply to personal copies. Apple doesn't care if I buy a copy of OS X, add a new kernel and other binaries, and then install it on my generic PC. Apple has no right to go after me because I'm not distributing a derivative work, and certainly not for profit.
Oh yes you can, as long as you include the original DVD in the package as well, just as the clone makers are doing with OS X.
No, but that's not analogous to what the cloners are doing. What you can do is rip the cover off 'my' published book (that you presumably purchased) and then frame it, or 'repackage' it in some way, and then sell it on, just as the cloners are doing with OS X.
Michael.
I work 1-2 years on an original project, literary, computer program...whatever. During that time, I get nothing, no income. When I finally publish it, now I start making my money for a legally specified amount of time. If, during that time, you're using my work to make money of your own, then you're a thief, plain and simple. Terms equate to money. I'd love to incorporate (for free) voice recognition in an iPhone program for free. But someone(s) labored to code that thing to work and should be compensated by a contract (usually not an individual one due to shear size of users). What gives me the right to slyly incorporate it without permission/terms by the authors?
Here's better: Would this PearC company be able to sell what it is they're selling were it not for Apple's software? Of course not. Then they're using an original work of someone else, without which, they would themselves have nothing. That's not piggybacking, that's stealing. We've reached a point where the culture is 'if it's downloadable or copyable, it's mine'. Artists and programmers have rights to their labor.
If you worked on something for a few years, would you like it if someone did this to you? If you WANT to throw it out there for free, fine...that's what OSF and GNU licenses are there for. OS X isn't. YOU, the originator should have rights to your own labor....how it's used..not price (free markets determine that).
Why doesn't this company write their own OS? Seriously.
We've reached a point where the culture is 'if it's downloadable or copyable, it's mine'. Artists and programmers have rights to their labor.
You (and a lot of others) are confusing two completely separate issues. The cloners are NOT copying, or illegaly downloading, or ripping off OS X to sell it as their own. They are BUYING legit copies and re-selling them, UNMODIFIED, together with their hardware. There's nothing illegal or immoral about that.
Lets take a literary example: Christopher Paolini's "Inheritance" cycle is all the rage at the moment. If I were to write a 10 page guide to the books and bundle it with a copy of each of the books (all legally bought) and sell that at a profit then that's perfectly fine and legal. This 'work' of mine would have no real value without the original books but that's irrelevant. It's the same thing that happened with all the spin-off books resulting from "The DaVinci Code" and "The Secret". The fact that PearC wouldn't have a product if it weren't for OS X is irrelevant.
Possibly, but it's a moot point. The cloners aren't distributing a backup, they're just distributing the installed OS and the original media. And if that was all that mattered then the cloners could just distribute the shrink-wrapped OS X without pre-installing and their customers would have the pretty painless task of installing the OS themselves. The end result is identical either way.
Michael.
They are COPYing without having RIGHTs granted from the content owner, from the original optical media to a HDD. They are not the end user so they do not have the RIGHT to COPY the media. Did you think OS X was running off the disc at startup like some Linux distros or did you really not see how installing an OS is copying of the IP.
EULAs can't strip away certain rights...like first-sale or reverse engineering...maybe
Softman v. Adobe (2001) ruled against EULAs (District Court for Central District of California)
However:
Davidson & Associates v. Internet Gateway, Inc (2004) (Blizzard v BNetD) upheld a click wrap license in the 8th circuit:
The only problem here is that they were doing something that was already illegal, EULA or otherwise, in reverse-engineering another company's product to produce a competing product. As I said, the EULA only comes up when the law is broken. I think the EULA is irrelevant in any other situation, and as it stands, you *can* legally hack software after it has been installed. You *can* legally install software on whatever device you want. For Apple to dictate to users what hardware their software can be installed on will require them to lobby Congress for legislative changes to back them up. The EULA alone does not give them this power.
They are COPYing without having RIGHTs granted from the content owner, from the original optical media to a HDD. They are not the end user so they do not have the RIGHT to COPY the media. Did you think OS X was running off the disc at startup like some Linux distros or did you really not see how installing an OS is copying of the IP.
You are correct, even if they don't have to fear the EULA, copyright law will break their neck.
(if they really preinstall the OS and don't put the retail box in their package without preinstalling)
They are COPYing without having RIGHTs granted from the content owner, from the original optical media to a HDD. They are not the end user so they do not have the RIGHT to COPY the media.
I don't agree with you but whatever, it's still irrelevant. If that was all that mattered the cloners could just include the shrink-wrapped OS X box in the package without pre-installing (as copeland pointed out above). As long as Apple continue to sell OS X in retail stores the absolute worst case for the cloners is that they can't pre-install or bundle OS X with their PCs and their customers will have to go out and buy it themselves and then install it themselves. The end result is still exactly the same. Apple will never be able to successfully sue someone for making a computer that has the ability to install a store bought copy of OS X.
The only problem here is that they were doing something that was already illegal, EULA or otherwise, in reverse-engineering another company's product to produce a competing product. As I said, the EULA only comes up when the law is broken. I think the EULA is irrelevant in any other situation, and as it stands, you *can* legally hack software after it has been installed. You *can* legally install software on whatever device you want. For Apple to dictate to users what hardware their software can be installed on will require them to lobby Congress for legislative changes to back them up. The EULA alone does not give them this power.
Say what? Reverse engineering isn't copyright infringement and considered fair use by US courts. The EULA was the only thing to prevent reverse engineering because you can voluntarily relinquish your rights under contract law that is granted by copyright.
There is even a DMCA provision that allows reverse engineering for interoperability.
You cannot legally hack software or legally install software on whatever device you want if you do not have permission from the copyright holder to do so except for what is normally granted by copyright law...which you may have relinquished when you clicked yes to the EULA as shown in the reverse engineering Blizzard case above.
Whether a EULA can preempt first sale doctrine is far more shakey. Most likely not, but this is also not the same thing.
Comments
As we (not Joe Six Pack) know the retail box is a upgrade, why is Apple shy to call it exactly that.
If that is not enough: create a installer that is looking for a previous installed Mac Os or if it can't find one is asking for a original OS Disk that has been supplied by Apple with your computer.
There is no need for serial numbers and activation routines. And as seen with iWork I would think Apple doesn't go that route.
But asking for less government when making profits, and for more government when having problems seems to be quite fashionable.
How very true. As exemplified by the song of the Wall Street shysters: 'De-regulation! De-regulation! De-regulation!'. Crash! 'Bail-out! Bail-out! Bail-out!'
But instead, I had to send it for repair 3 times. By the time the last repair was made, the 1 year warranty was about to expire, and was forced into purchasing Apple care, as I had lost confidence in their repairs. +£350. I personally think that there is some sort of strategy in it. They erased some of repair's records so I couldn't claim a new machine either.
As much as I like the OS, I will not purchase another Mac and spend a year going to the repair shop, paying extra to jump the 1 month queue every time. Please do tell me that I am an exception, every time I went to the repair shop there were people collecting from repairs and 1 month waiting queues probably means lots of repairs. And this is only a local Apple repair centre . The forum is full of people having trouble too, often hardware related. So if I had the alternative of hardware, this is something I will consider.
On another note, reading the never ending list of articles about Apple ripping off others technology, I believe that they do not have the moral ground to make any claim.
Form a German point of view, US-style EULAs seem to be rather odd in general. This is why:
When I buy something from a shop, I impicitly enter a contract with the shop owner. So I hand over the money and he gives me the product. Both parties (me and the shop owner) have voluntarily entered the contract and when I leave the shop, the deal is done.
Now when I am at home trying to install the software, a THIRD PARTY, in this case Apple, with whom I have no contractual relationship whatsoever, says I have to agree to another contract with them.
A contract is only valid, if both parties enter into it VOLUNTARILY. Clearly this is not the case if this third party Apple says: "Agree to this contract or otherwise drive around the city for an hour and revoke the contract with the shop owner", which is already perfectly done and finished. Besides, the shop owner may well say: "all sales are final and we don't do returns". What am I supposed to do in this case? Contracts (in this case between me and Apple) at the expense of a third party (in this case, the shop owner) are invalid.
You may say that the EULA is an extension to the deal with the shop owner. But this would also be invalid, because after a contract is entered, one party cannot unilaterally change the term of the contract.
And of course, all parts of the contract must be clearly visble to me at the time I enter the contract with the shop, otherwise they are invalid, too. This certainly does not include a short notice written in small type on the side of the box, saying there are more terms of the contract about to come after the deal (with the shop) is done.
This issue has always puzzled me about the US law. Please explain to me why US lawyers still find EULAs applicable.
Greetings,
Joerg
If Apple sell OS X to the public in retail stores then there's nothing they can do to stop people (or companies) who buy it installing it on whatever they like (even if that includes subsequently re-seling it). It's not stealing or piracy or anything else. Clone makers who buy legit copies of OS X are not "making a buck on the back of Apple's IP". That's as absurd as suggesting that Dell are making a buck on the back of Microsoft's IP because they bundle Windows (which they have legally bought, just as the clone makers buy legal copies of OS X).
I really don't understand what all the fuss is about. If Apple want to restrict OS X to only their own hardware (as they are perfectly entitled to do) then they should not sell it to the public in retail stores. They don't sell the iPhone OS in retail stores do they? An easy solution would be to follow the iPhone model. Macs could be sold with a copy of OS X bundled in flash memory and after that all upgrades are done over the net. The price of flash memory and the speed of broadband makes this a perfectly feasible solution. For older Macs that don't have the flash OS they'd have to take them to an official Apple retailer to upgrade the OS (as used to be the case for cellphone firmware upgrades before over-the-air upgrades became commonplace).
Michael.
Hi!
Now when I am at home trying to install the software, a THIRD PARTY, in this case Apple, with whom I have no contractual relationship whatsoever, says I have to agree to another contract with them.
A contract is only valid, if both parties enter into it VOLUNTARILY.
If you wrote a novel, and I decide to produce it into a movie, we enter into an contractual agreement. It doesn't matter which country(s) we're coming from (except that they both belong to the WTO). Our agreement reduces to two items: terms and money. Sometimes the 'terms' release 'creative control' to the purchasers, sometimes the author retains some or all of it. In either event, you have to abide by those terms (usually the money reflects the terms). You never 'own' the product, just the rights to use it in a specified way.
You DID enter into an agreement with APPLE, and you did do it VOLUNTARILY. You can't plunk down money and say 'I don't give a frozen rat's a$$ what the other side wants'...maybe with a chair or desk, but not intellectual property...different animal. APPLE spent years and billions (literally) developing OS X. It purchased its rights from NextSTEP (Job's former business) outright, and abides by the BSD UNIX terms from under which the kernel comes. Just because you've purchased a DVD copy of a movie doesn't mean you can repackage it in a thumb drive and send it along with some deal you've cooked up as a third party business anymore than I can rip the cover off your published book and publish it online in a digital form. It's the CONTENT that's copy protected, not the physical item itself.
Doesn't matter. For all the scary sounding legalese in a typical EULA, they stand up in court only when they are used to combat piracy (which is already illegal so whether the EULA actually mattered in those situations is debatable.) It has been established now many times in court that a EULA is not a valid contractual agreement between the software creator and the customer.
...
Don't be fooled by this stupid EULA argument. They are not viewed by courts as a legitimate contract.
Enforcable in the US.
ProCD v. Zeidenberg
EULAs can't strip away certain rights...like first-sale or reverse engineering...maybe
Softman v. Adobe (2001) ruled against EULAs (District Court for Central District of California)
However:
Davidson & Associates v. Internet Gateway, Inc (2004) (Blizzard v BNetD) upheld a click wrap license in the 8th circuit:
"The court upheld the EULA and TOU as enforceable contracts, rejecting various arguments by defendant that a contract was not formed through the click-thru process. Even though the EULAs and TOU were not on the physical packaging for the PC game, the court found that the terms were disclosed before installation to the games and access to Battle.net were granted, and express assent was obtained through the click-thru process. The court also held that the defendants’ waived their fair use right to reverse engineer by entering into the license agreement, and rejected the notion that this contractual waiver constituted copyright misuse. "
http://www.svmedialaw.com/ecommerce-...cker-case.html
This was upheld on appeals.
What is even more interesting is that Blizzard argued that first sale doctrine is only triggered when a sale occurs and not when a licensing agreement is enacted. I don't know if this made the cut.
--
As for this particular case, it really depends on limitations on exclusive rights for software under german law. It is fairly clear that none of the participants in this thread are:
a) lawyers
b) german lawyers
c) german IP lawyers
It depends on what limits on exclusive rights that german copyright law has. The US has section 117 that provides US consumers with certain rights however, as seen above, contract law and licenses can permit US consumers to click away some of these rights (reverse engineering) but perhaps not others (first sale doctrine).
If you're a german IP lawyer, do tell.
If you have german case law to present, great.
Just because you've purchased a DVD copy of a movie doesn't mean you can repackage it in a thumb drive and send it along with some deal you've cooked up as a third party business
Oh yes you can, as long as you include the original DVD in the package as well, just as the clone makers are doing with OS X.
anymore than I can rip the cover off your published book and publish it online in a digital form. It's the CONTENT that's copy protected, not the physical item itself.
No, but that's not analogous to what the cloners are doing. What you can do is rip the cover off 'my' published book (that you presumably purchased) and then frame it, or 'repackage' it in some way, and then sell it on, just as the cloners are doing with OS X.
Michael.
Oh yes you can, as long as you include the original DVD in the package as well, just as the clone makers are doing with OS X.
It's pretty clear given your EULA statement being factually wrong that your opinion on this matter is likely very flawed.
No, but that's not analogous to what the cloners are doing. What you can do is rip the cover off 'my' published book (that you presumably purchased) and then frame it, or 'repackage' it in some way, and then sell it on, just as the cloners are doing with OS X.
Except it isn't the cover of your book but a copy of the cover of your book.
Oh yes you can, as long as you include the original DVD in the package as well, just as the clone makers are doing with OS X.
No you can't. The laws allowing you make a backup do not let allow to distribute your backups, even if you are sending them along with the original media.
No you can't. The laws allowing you make a backup do not let allow to distribute your backups, even if you are sending them along with the original media.
Possibly, but it's a moot point. The cloners aren't distributing a backup, they're just distributing the installed OS and the original media. And if that was all that mattered then the cloners could just distribute the shrink-wrapped OS X without pre-installing and their customers would have the pretty painless task of installing the OS themselves. The end result is identical either way.
Michael.
It could be so easy for Apple: Call the upgrade a upgrade and everything is dandy . (dreyfus2 pointed that out several times).
As we (not Joe Six Pack) know the retail box is a upgrade, why is Apple shy to call it exactly that.
If that is not enough: create a installer that is looking for a previous installed Mac Os or if it can't find one is asking for a original OS Disk that has been supplied by Apple with your computer.
There is no need for serial numbers and activation routines. And as seen with iWork I would think Apple doesn't go that route.
Perfect solution! I was going to suggest it myself, but you beat me to the punch.
This would make it crystal clear that they're not selling you the OS, only an upgrade to the existing OS. I wouldn't make it much more technically difficult to install it on generic PC's, since there's no point in going after the Hackintosh crowd. Psystar and this German company are the real targets Apple needs to go after.
The prohibition against modifying OS X does not apply to personal copies. Apple doesn't care if I buy a copy of OS X, add a new kernel and other binaries, and then install it on my generic PC. Apple has no right to go after me because I'm not distributing a derivative work, and certainly not for profit.
Oh yes you can, as long as you include the original DVD in the package as well, just as the clone makers are doing with OS X.
No, but that's not analogous to what the cloners are doing. What you can do is rip the cover off 'my' published book (that you presumably purchased) and then frame it, or 'repackage' it in some way, and then sell it on, just as the cloners are doing with OS X.
Michael.
I work 1-2 years on an original project, literary, computer program...whatever. During that time, I get nothing, no income. When I finally publish it, now I start making my money for a legally specified amount of time. If, during that time, you're using my work to make money of your own, then you're a thief, plain and simple. Terms equate to money. I'd love to incorporate (for free) voice recognition in an iPhone program for free. But someone(s) labored to code that thing to work and should be compensated by a contract (usually not an individual one due to shear size of users). What gives me the right to slyly incorporate it without permission/terms by the authors?
Here's better: Would this PearC company be able to sell what it is they're selling were it not for Apple's software? Of course not. Then they're using an original work of someone else, without which, they would themselves have nothing. That's not piggybacking, that's stealing. We've reached a point where the culture is 'if it's downloadable or copyable, it's mine'. Artists and programmers have rights to their labor.
If you worked on something for a few years, would you like it if someone did this to you? If you WANT to throw it out there for free, fine...that's what OSF and GNU licenses are there for. OS X isn't. YOU, the originator should have rights to your own labor....how it's used..not price (free markets determine that).
Why doesn't this company write their own OS? Seriously.
We've reached a point where the culture is 'if it's downloadable or copyable, it's mine'. Artists and programmers have rights to their labor.
You (and a lot of others) are confusing two completely separate issues. The cloners are NOT copying, or illegaly downloading, or ripping off OS X to sell it as their own. They are BUYING legit copies and re-selling them, UNMODIFIED, together with their hardware. There's nothing illegal or immoral about that.
Lets take a literary example: Christopher Paolini's "Inheritance" cycle is all the rage at the moment. If I were to write a 10 page guide to the books and bundle it with a copy of each of the books (all legally bought) and sell that at a profit then that's perfectly fine and legal. This 'work' of mine would have no real value without the original books but that's irrelevant. It's the same thing that happened with all the spin-off books resulting from "The DaVinci Code" and "The Secret". The fact that PearC wouldn't have a product if it weren't for OS X is irrelevant.
Michael.
Possibly, but it's a moot point. The cloners aren't distributing a backup, they're just distributing the installed OS and the original media. And if that was all that mattered then the cloners could just distribute the shrink-wrapped OS X without pre-installing and their customers would have the pretty painless task of installing the OS themselves. The end result is identical either way.
Michael.
They are COPYing without having RIGHTs granted from the content owner, from the original optical media to a HDD. They are not the end user so they do not have the RIGHT to COPY the media. Did you think OS X was running off the disc at startup like some Linux distros or did you really not see how installing an OS is copying of the IP.
Enforcable in the US.
ProCD v. Zeidenberg
EULAs can't strip away certain rights...like first-sale or reverse engineering...maybe
Softman v. Adobe (2001) ruled against EULAs (District Court for Central District of California)
However:
Davidson & Associates v. Internet Gateway, Inc (2004) (Blizzard v BNetD) upheld a click wrap license in the 8th circuit:
The only problem here is that they were doing something that was already illegal, EULA or otherwise, in reverse-engineering another company's product to produce a competing product. As I said, the EULA only comes up when the law is broken. I think the EULA is irrelevant in any other situation, and as it stands, you *can* legally hack software after it has been installed. You *can* legally install software on whatever device you want. For Apple to dictate to users what hardware their software can be installed on will require them to lobby Congress for legislative changes to back them up. The EULA alone does not give them this power.
They are COPYing without having RIGHTs granted from the content owner, from the original optical media to a HDD. They are not the end user so they do not have the RIGHT to COPY the media. Did you think OS X was running off the disc at startup like some Linux distros or did you really not see how installing an OS is copying of the IP.
You are correct, even if they don't have to fear the EULA, copyright law will break their neck.
(if they really preinstall the OS and don't put the retail box in their package without preinstalling)
They are COPYing without having RIGHTs granted from the content owner, from the original optical media to a HDD. They are not the end user so they do not have the RIGHT to COPY the media.
I don't agree with you but whatever, it's still irrelevant. If that was all that mattered the cloners could just include the shrink-wrapped OS X box in the package without pre-installing (as copeland pointed out above). As long as Apple continue to sell OS X in retail stores the absolute worst case for the cloners is that they can't pre-install or bundle OS X with their PCs and their customers will have to go out and buy it themselves and then install it themselves. The end result is still exactly the same. Apple will never be able to successfully sue someone for making a computer that has the ability to install a store bought copy of OS X.
Michael
The only problem here is that they were doing something that was already illegal, EULA or otherwise, in reverse-engineering another company's product to produce a competing product. As I said, the EULA only comes up when the law is broken. I think the EULA is irrelevant in any other situation, and as it stands, you *can* legally hack software after it has been installed. You *can* legally install software on whatever device you want. For Apple to dictate to users what hardware their software can be installed on will require them to lobby Congress for legislative changes to back them up. The EULA alone does not give them this power.
Say what? Reverse engineering isn't copyright infringement and considered fair use by US courts. The EULA was the only thing to prevent reverse engineering because you can voluntarily relinquish your rights under contract law that is granted by copyright.
There is even a DMCA provision that allows reverse engineering for interoperability.
You cannot legally hack software or legally install software on whatever device you want if you do not have permission from the copyright holder to do so except for what is normally granted by copyright law...which you may have relinquished when you clicked yes to the EULA as shown in the reverse engineering Blizzard case above.
Whether a EULA can preempt first sale doctrine is far more shakey. Most likely not, but this is also not the same thing.