Apple finally sues unauthorized clone maker Psystar

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  • Reply 181 of 210
    solipsismsolipsism Posts: 25,726member
    Quote:
    Originally Posted by aresee View Post


    You got Florida law, California law, Federal law and common law here. The Engadget article did leave the opening that Pystar could win an EULA fight. It will be interesting to see how this plays out.



    I mentioned reverse engineering because that clause is usually placed in the EULAs to prevent people form studying and modifying the software to their own specs. In this case the reverse engineering was done by a third party which Pystar used for their own purposes. I wonder what would have happened if Pystar had resold a Leopard disk with instructions or a software patch and had the purchaser do the modifications on their own? Especially the 10.5.4 upgrade.



    I don't know why you didn't think that Pystar wasn't a front company. From day one Pystar has said that they have a team of lawyers waiting to take Apple on. This is no different than the civil rights lawyers and the environmental lawyers advertising for someone to break the law so that the law can be challenged in court. Anybody wanting to break Apples EULA needed to have Apple attempt to enforce it. And for that you needed to have somebody spit in Apple eye.



    You know, this is getting me to think back 25 years and the breaking of the IBM BIOS chip.



    I haven't really mentioned the EULA much in this thread, except in a reference regarding Engadget's claim that there have been cases won against EULA violators. The biggest point I've been trying to make is that Psystar didn't purchase every OS X copy they have in possession and only this copies that violated copyrights were installed on their systems. I think the EULA is the weakest aspect of this case.
  • Reply 182 of 210
    areseearesee Posts: 776member
    Quote:
    Originally Posted by solipsism View Post


    I haven't really mentioned the EULA much in this thread, except in a reference regarding Engadget's claim that there have been cases won against EULA violators. The biggest point I've been trying to make is that Psystar didn't purchase every OS X copy they have in possession and only this copies that violated copyrights were installed on their systems. I think the EULA is the weakest aspect of this case.



    Ok, you may be more knowledgeable here than I am. I was taking Psystar at their claim that they were taking a purchased copy of Leopard, modifying it per a set of instructions obtained by the reverse engineers and selling the result. Now if they were distributing an illegal Bit Torrent copy of Leopard ... well, I don't think their lawyer backers are very happy.
  • Reply 183 of 210
    solipsismsolipsism Posts: 25,726member
    Quote:
    Originally Posted by aresee View Post


    I was taking Psystar at their claim that they were taking a purchased copy of Leopard, modifying it per a set of instructions obtained by the reverse engineers and selling the result. Now if they were distributing an illegal Bit Torrent copy of Leopard ... well, I don't think their lawyer backers are very happy.



    Psyster will (read: would have) loaded Leopard for you and charged you around $150 for it, but you also got a physical store bought copy of Leopard with your purchase. To them, they justified the deal, even though the copy was a hacked version they illegally obtained and that they didn't write. They tell you that the OS X install disk they send you can't be used in their Macs.



    That if you need the OS X reinstalled you have to send them your HDD (with all your personal data) through the mail at your own cost both ways to have it reinstalled by them. I forget if they charge for the installation on top of that. That is why i don't think this is was started by one or two short-sided individuals, and why they are fracked.



    PS: The people that did write the BIOS to EFI software and other software are also pissed at Psystar for taking their software without permission. While it was free to use, the GPL forbids it from being sold or at least sold without consent.
  • Reply 184 of 210
    cathulcathul Posts: 18member
    Quote:
    Originally Posted by ros3ntan View Post


    yes, but you are modifying the usage of the product which is specified in EULA



    In europe this doesn't mean sh*t. I don't know how's that handled in the USA though, but i cannot say that i even care.
  • Reply 185 of 210
    cathulcathul Posts: 18member
    Quote:
    Originally Posted by ros3ntan View Post


    we don't have data medium. I think it will be great but those kind of rights doesn't exist. So do you guys have any problem with people sharing software though? just curious. Cause i would think if i can share the software with other people, then the prices of those software will go down.



    You can get retail versions of Leopard in stores over here in europe, or even through amazon and ebay resellers. You get a box which contains a dvd and a small booklet. And on the box there is nowhere stated that the software is an upgrade version, so the end user can expect to buy a full version.

    The EULA isn't part of the buying contract as well, as the eula isn't presented to the customer during the buying process in every detail.

    To me it seems like european laws and US laws differ a lot in this case.



    Quote:

    And is Linux community big in europe? cause i would such rule will drive people to linux a lot more than in the US.



    Yes, it's quite big.
  • Reply 186 of 210
    lfmorrisonlfmorrison Posts: 698member
    Quote:
    Originally Posted by solipsism View Post


    PS: The people that did write the BIOS to EFI software and other software are also pissed at Psystar for taking their software without permission. While it was free to use, the GPL forbids it from being sold or at least sold without consent.



    I don't believe the EFI emulator was released under the GPL. At least, it definitely wasn't at the time Psystar obtained its copy. The way I remember it, it didn't appear to have been released under any license at all at the time Psystar obtained it, in which case, Psystar (or anybody else) didn't have any right to duplicate or redistribute it at all, under any circumstances.



    If it had been released under the unmodified GPL, then the effect would have been the exact opposite of what you seem to be implying. As soon as an author releases even a single copy of a program under the GPL, the person who receives that copy of the software has the right to duplicate it as many times as they wish, and redistribute it to whomever they wish for free, or charge whatever price the market will bear, with no royalties owed to the original author. There are only a few catches:



    1) If you receive the compiled binary version of the software under the GPL (no matter whether you paid for it or received it for free), then for a period of no less than three years, the person from whom you obtained it must, on request, provide you with the source code for no more than the cost of the media and shipping used to convey it.



    2) If you receive the software under the GPL, and then you choose to distribute (ie give away or sell) the compiled binary version of the software to others, then the people to whom you distribute the software immediately and for a period of no less than three years, have the right to require you to provide them with the source code to the software on demand, for no more than the cost of the media and shipping used to convey it. If you ever redistribute the compiled binary version of the software separately from the source code, then you really should be reasonably certain that it will be possible to meet this provision, because failure to do so would be a breach of the GPL and you would be committing a violation of the original author's copyright. The safest solution is to always make the binary and source code versions of the software available for simultaneous distribution if the receiver so wishes, in which case you'll have fulfilled all the requirements of this condition even if the receiver declines to receive the source code at that time.



    3) The people to whom you redistribute the software, must receive it under the GPL license as well, inheriting all the same rights and limitations of redistribution as you do, including the ability to give it away for free or charge whatever price they want for it (undercutting the price they paid you for it if they wish).



    4) If you received a copy of the software, you have full discretion to pick and choose whom you're willing to redistribute the software to, as long as you meet conditions (2) and (3). The original author cannot prevent you from distributing to anybody, nor can you prevent the original author from distributing to anybody. If somebody else receives the software from you, then that somebody else also has full discretion to pick and choose who they want to redistribute the software to, and neither you nor the original author can prevent them from distributing to anybody, nor can they prevent either you or the original author from distributing to anybody.



    5) The original author may choose to release subsequent copies of the software under a different license if (s)he wishes, but any copies of the original software that are already out in the wild under the original license will continue to be redistributable under the terms of the original license.



    6) A person who steals a copy of this software from you without your consent does not inherit any redistribution rights. (Your consent is implied if you place a copy of the software on a publicly available portion of a file server.)



    Of course there are other subtleties, but this catches most of the gist of it.
  • Reply 187 of 210
    shaminoshamino Posts: 490member
    Quote:
    Originally Posted by bsenka View Post


    Click to accept is just another way of saying "yeah, yeah, whatever". ... "I lied when I clicked accept" is a perfectly reasonable defense anyway, IMO.



    That's like saying "I didn't read the contract I just signed" is a reasonable defense. It isn't.



    In states where case law or legislation has held click-through/shrink-wrap licenses to be enforceable, clicking "I agree" is equivalent to a signature.

    Quote:
    Originally Posted by bokuwaomar View Post


    As I stated in an earlier post, the right to resell does not equal the right to copy. You are free to resell a legally acquired copy of a work (as long as you don't retain copies of it). However, installing software involves copying it from the distribution medium, and running it involves copying it to memory, so the copyright holder can control those aspects of using the software, at least unless its ruled otherwise.



    US copyright law explicitly permits making copies for the purpose of backup, and when it is necessary to use the software (e.g. installation and execution.) Specifically:
    § 117. Limitations on exclusive rights: Computer programs



    (a) Making of Additional Copy or Adaptation by Owner of Copy. — Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:



    (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner,or



    (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

    It is only EULA, not copyright law that prevents Psystar from installing OS X on non-Apple hardware.

    Quote:
    Originally Posted by trboyden View Post


    You do realize 80% of Mac OS X is Open Source code don't you? This means anyone has the right to modify and distribute most parts of Mac OS X. Whether or not Psystar is legally allowed to distribute modified updates depends on what they modified and how much they modified.



    If they monitored the various open source mailing lists, and released their own patches to these products, they'd be 100% in the clear.



    Downloading and modifying Apple's installer-packages, however, is not the same, even if those installers contain patches to open source code.



    It's also worth noting that no open source license says that you are allowed to freely redistribute binaries. Those that impose rules (like GPL) say that anyone distributing binaries must also make the source code freely available. But you are still completely within your rights to restrict the distribution of the binaries. (Case in point: You can download source-code packages from RedHat, but you can't download binary packages from them without a paid-up RedHat license.)

    Quote:
    Originally Posted by ros3ntan View Post


    Dont you pay subscription fee for ISP? Thats your license to go online. You don't pay each site license, you pay license to get access to the internet.



    That is not at all true.



    You aren't paying an "internet license" to your ISP. You are leasing a port on one of their routers, and you are leasing bandwidth in their network (and they, in turn, lease ports/bandwidth from their service providers, etc.). This has absolutely nothing at all to do with a hypothetical "internet license", the sites you visit or the content you transfer.
  • Reply 188 of 210
    zinfellazinfella Posts: 877member
    Quote:
    Originally Posted by shamino View Post


    US copyright law explicitly permits making copies for the purpose of backup



    However, authors of the software, such as Adobe, may restrict your ability to make a useable copy. New Adobe software comes with two activations, period. The idea is that you load the software on a desktop and a laptop, then you will have used both activation numbers. If you then make a backup of that software, it will require another activation number, or it won't launch. The exception to that is if one uses a backup program that uses a block by block backup, and most don't. AFAIK, CCC is the only one to do that.



    Adobe does not care if you don't have a backup! They will issue additional activation numbers if you convince them that they should do so. One reason would be to reload the software due to a formatted HD.



    I'm surprised that Apple hasn't also limited the activations on their OS software. For all I know, that may be in the works.
  • Reply 189 of 210
    Quote:
    Originally Posted by zinfella View Post


    However, authors of the software, such as Adobe, may restrict your ability to make a useable copy.



    However, as shanimo has kindly pointed out, provided you are already the rightful owner of a copy of a piece of software, it is explicitly not a violation of copyright law in the USA to make an adaptation (that is, a modified copy) of that computer program for the sole purpose of making it possible to run on your computer system.



    Would it be a breach of an EULA? Probably... Depends on whether or not the EULA mentions such activities, I guess.



    Apple's OS X EULA does prohibit it, "...except and only to the extent permitted by applicable law...".
  • Reply 190 of 210
    solipsismsolipsism Posts: 25,726member
    Quote:
    Originally Posted by lfmorrison View Post


    However, as shanimo has kindly pointed out, provided you are already the rightful owner of a copy of a piece of software, it is explicitly not a violation of copyright law in the USA to make an adaptation (that is, a modified copy) of that computer program for the sole purpose of making it possible to run on your computer system.



    Too bad for Psystar that isn't even close to what they did.
  • Reply 191 of 210
    Quote:
    Originally Posted by solipsism View Post


    Too bad for Psystar that isn't even close to what they did.



    True, but it does add credence to the thought that, hypothetically, if they had simply sold a shrink wrapped copy of OS X, alongside a totally OS-less computer, they might not have actually done anything illegal, nor might they have been inciting their customers to do anything illegal.
  • Reply 192 of 210
    solipsismsolipsism Posts: 25,726member
    Quote:
    Originally Posted by lfmorrison View Post


    True, but it does add credence to the thought that, hypothetically, if they had simply sold a shrink wrapped copy of OS X, alongside a totally OS-less computer, they might not have actually done anything illegal, nor might they have been inciting their customers to do anything illegal.



    Then they shouldn't have even sold the shrink wrapped OS. Just build it and advertise that the components are suited for the OSx86 project, but don't include the software. Similar to the way ffmpegX and RarMe tell you where to get the supporting binaries but come with them pre-installed. I think even a walkthrough of how to do it would have been fine so long as they clearly label it that you shouldn't do it without authorization from Apple. Those silly loopholes of how you can by bongs but you have to refer to them as tobacco pipes or something. I think some states allow you to by stills but not brew your own alcohol.



    I don't even think offering drivers on their site would be in any violation with Apple.
  • Reply 193 of 210
    shaminoshamino Posts: 490member
    Quote:
    Originally Posted by zinfella View Post


    However, authors of the software, such as Adobe, may restrict your ability to make a useable copy. New Adobe software comes with two activations, period.



    Copyright law says you have the right to make a backup. It doesn't say publishers have to make it easy.

    Quote:
    Originally Posted by lfmorrison View Post


    However, as shanimo has kindly pointed out, provided you are already the rightful owner of a copy of a piece of software, it is explicitly not a violation of copyright law in the USA to make an adaptation (that is, a modified copy) of that computer program for the sole purpose of making it possible to run on your computer system.



    Quote:
    Originally Posted by solipsism View Post


    Too bad for Psystar that isn't even close to what they did.



    What Psystar did is hardly clear-cut in either direction.



    As I wrote before, they'd be free-and-clear if they shipped an OS X box, along with a disc containing the necessary hacks, and some installation instructions. But that's not what they're doing.



    They are shipping a box of OS X, but the installation isn't made from that box. This may be in violation of the letter of copyright law (since you're getting a computer containing software copied from other media), although not the spirit (since Apple is getting an OS X sale for every installation shipped.)



    It's my understanding that when Dell (and other PC makers) ship systems that are installed from a common master-image, they are only allowed to do it, because of an explicit license from the software makers (Microsoft, Adobe, etc.) A PC maker without a license, shipping installations made from retail boxes of Windows, would actually have to install each system from its own separate set of media (or ship systems without anything preloaded, and have the customer install the software.)



    The rest of what Psystar does (installing on unsupported hardware, etc.) is a violation of the EULA, but shouldn't be a matter of copyright. Case law (but not legislation) in Florida (where Psystar is located) says that EULAs are enforceable, but that by itself isn't enough to clearly determine the outcome of this suit.



    I really have no clue what the courts will decide here. It will set important industry-wide precedent, either way.
  • Reply 194 of 210
    solipsismsolipsism Posts: 25,726member
    Quote:
    Originally Posted by shamino View Post


    They are shipping a box of OS X, but the installation isn't made from that box. This may be in violation of the letter of copyright law (since you're getting a computer containing software copied from other media), although not the spirit (since Apple is getting an OS X sale for every installation shipped.)



    The talk about EULA needs to fall to the wayside. It's like arguing the mass of an atom by measuring its electrons when the other two parts have yet to be determined. Your paragraph above clearly states to me exactly how they are screwed: They aren't using the purchased copies and have not paid for the copy they are installing.



    Quote:

    It will set important industry-wide precedent, either way.



    Let's assume for a moment that Psystar wins and they are allowed to shipped stolen, hacked copies of OS X installed on beige boxes so long as they also ship a purchased copy of OS X, too. You have a huge number of startups now doing the same thing Psystar is doing. You also now have HP and Dell?who have been wanting to use OS X and get out from under MS' thumb?installing OS X as an option for their systems.



    Apple's only retaliation is to raise the price of OS X substantially, but this could be seen as price gouging. It also makes Apple's ~2 year OS cycle a less suitable for upgrading if the OS is, say, $400 like Windows Vista Ultimate version to compensate for the loss in hardware sales and the millions of people that are now calling Apple for OS X support on their hacked clone. OS X market-share would rise but their profits would plummet.
  • Reply 195 of 210
    lfmorrisonlfmorrison Posts: 698member
    Quote:
    Originally Posted by solipsism View Post


    Your paragraph above clearly states to me exactly how they are screwed: They aren't using the purchased copies and have not paid for the copy they are installing.



    And, hypothetically, if it were to be shown that they had been starting each installation from scratch, through an automated process of creating a fresh edition of the patch, derived from a never-before-used retail copy of Mac OS X...?



    Quote:

    ...To compensate for ... the millions of people that are now calling Apple for OS X support on their hacked clone...



    They aren't required to bundle an offer of technical support with the sale of the OS. Bundle it with the sale of the hardware instead.
  • Reply 196 of 210
    areseearesee Posts: 776member
    Quote:
    Originally Posted by solipsism View Post


    Let's assume for a moment that Psystar wins and they are allowed to shipped stolen, hacked copies of OS X installed on beige boxes so long as they also ship a purchased copy of OS X, too. You have a huge number of startups now doing the same thing Psystar is doing. You also now have HP and Dell?who have been wanting to use OS X and get out from under MS' thumb?installing OS X as an option for their systems.



    This is why I wonder if someone like Michael Dell is behind Psystar. It would be very big if they could break the exclusively clause in the EULA. After saying that, I agree with you that this will be copyright case instead of an EULA case. Psystar backers, if they have any, are probably just as pissed with Psystar as the reverse engineers.
  • Reply 197 of 210
    jlanddjlandd Posts: 873member
    Quote:
    Originally Posted by solipsism View Post


    Then they shouldn't have even sold the shrink wrapped OS. Just build it and advertise that the components are suited for the OSx86 project, but don't include the software. Similar to the way ffmpegX and RarMe tell you where to get the supporting binaries but come with them pre-installed. I think even a walkthrough of how to do it would have been fine so long as they clearly label it that you shouldn't do it without authorization from Apple. Those silly loopholes of how you can by bongs but you have to refer to them as tobacco pipes or something. I think some states allow you to by stills but not brew your own alcohol.



    I don't even think offering drivers on their site would be in any violation with Apple.



    I feel this is very key. If Apple states their OS may not be installed on any computer but an Apple, it's a contract (made when opening the package) that they could afford to not bother tightening up because until fairly recently not only was it hard to do but hardly anyone wanted to. The ffmpeg example is a good one, and that's where Psystar is going to have the hardest time. And yoo are exactly on the money about the disclaimer that should have been included with systemless Psystars. Apple could never sue the end users, they're a bad target. So Psystar should have left them holding the bag and been bagless.



    i think it's the major oversight for them.
  • Reply 198 of 210
    zinfellazinfella Posts: 877member
    Quote:
    Originally Posted by shamino View Post


    Copyright law says you have the right to make a backup. It doesn't say publishers have to make it easy.



    Perzactly!
  • Reply 199 of 210
    trenbractrenbrac Posts: 10member
    Quote:
    Originally Posted by jlandd View Post


    The ffmpeg example is a good one, and that's where Psystar is going to have the hardest time. And yoo are exactly on the money about the disclaimer that should have been included with systemless Psystars. Apple could never sue the end users, they're a bad target. So Psystar should have left them holding the bag and been bagless.



    i think it's the major oversight for them.







    If Psystar see more holes in Apple's legal rights than I do, they sure made their move with an equal number of holes. Apple can get shot down in court by any number of things but Psystar doesn't have them in a compromised position by any stretch.
  • Reply 200 of 210
    shaminoshamino Posts: 490member
    Quote:
    Originally Posted by jlandd View Post


    I feel this is very key. If Apple states their OS may not be installed on any computer but an Apple, it's a contract (made when opening the package) that they could afford to not bother tightening up because until fairly recently not only was it hard to do but hardly anyone wanted to.



    Not everything in a contract may be legal. Even with a signature, there are some rights you can not sign-away. (For example, many companies make terminated employees sign a form saying that they won't go to work for a competitor. These "indenture" clauses are illegal and can not be enforced, no matter how many signatures are on the form.)



    The fact that an EULA (or any other kind of contract) says something doesn't automatically make it legally binding or enforceable. I don't think this particular clause (restricting the hardware a legally-purchased piece of software may be run on) has ever been challenged in court.
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