[B]You know what I meant I am sick to death of your technicalities.
And I'm sick to death of your uninformed trolling.
Quote:
if Darwin is meant to be modified then that does not count.
Why not? Darwin is part of OS X. Therefore, OS X can be modified, at least parts of it, which goes against your 'OS X IS NOT TO BE MODIFIED!11!' charade you have going here.
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Can darwin be modified to make OSX work on a PC? No. The modifications needed to make OSX work on a PC are not ones that are extended to the user, you know that, you know what I meant. Quit being an ass.
No, you quit calling people names here, and understand that just because Aqua and other little applications and whatnot are proprietary, that doesn't mean that the whole of OS X is, therefore you can't lump the entire OS X operating system into your little theory about un-modifiable software.
I guess these are 'technicalities' though.
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So gene finally found the introduction of the term that has been found in the courts to be unworkable and unsupportable for broad application of protections. bravo - not.
I'm sure you think you're being smart and funny, but this is some incomprehensible rant you got going here. Care to clarify?
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The language itself does not say what fair use is. it says consider some things and make a ruling. Not a single mention of any of the modifications or backups here either. Is there? Because the law is so pathetic at actually defining fair use it is case by case if you are taken to court.
I guess you could do a better job at re-writing that law since it's so 'pathetic'. But Fair Use has been codified into United States laws, and regardless of your opinions of its laws - those laws are legally valid. Wether or not they explain every single possible case where Fair Use could be used as an argument is also irrelevant (though I'm sure you could do a better job of explaining what 'Fair Use' is) - what is relevant is that a judge reads the law and interprets the law as he/she thinks it was meant to be. Judges become judges for a reason: to interpret the law and decide what the law says.
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No congressional protections of any kind. Just some words to tell judges -- "Hey it's up to you if you ever see this!"
Congressional protection? What the hell is that? Just some words? What do you think laws are, if not 'some words' that have a meaning?
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Thanks for confirming my point! You are a gem!!!
I'm amused at seeing you jump around claiming I made your point when it's not clear if you even had a point to begin with.
Other than that one issue, please feel free to argue your position as vigorously as you wish.
Rest assured that the thread will NOT be locked - I do not lock threads; it is against my religion. However, posts containing name calling are subject to editing (if I have the energy) or unceremonious deletion (if I don't).
Bush isn't a great president...but he's nothing like Hitler, Tse-Tung and co. and nothing like the dictators in many african countries. And he would never be allowed to use the country's resources for himself.
Really? I guess you haven't heard about war in Iraq and haven't filled up at the gas station recently... where do you think the biggest oil industry profits in the entire history of the oil industry go?? Bush's pocket! And that is just one example. I won't go into the defense sector which, by the Iraq war, was assured very good business for years!
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No congressional protections of any kind. Just some words to tell judges -- "Hey it's up to you if you ever see this!"
That is why it is wise to host the website overseas in country that is not crippled by DMCA... like Sweden.
Copyright is an important right and must be protected. However, I would dare you to find any costitutional and law expert that will tell you that copyright is more important than free speech!
DMCA does not protect copyright, but rather protects profits of companies at the expense of innovation.
In the case with Apple, there is no argument that can be made that figuring out how one can run OSX on non Apple machines can, in any way, tramples on, so called, intellectual property, or even somehow makes a dent in Apple's profits. As long as Apple doesn't officially endorse it, it will never gain popularity among general public.
All of these discussions and attempts to run OSX on non-apple PCs are purely of academic nature. And one has to be really stupid to think that any judge or non-physical law can forbid it. It is the same way that inquisition was trying to outlaw scientific thought during Dark Ages. Nobody can outlaw gravity, light, or the human curiosity. I just hope that this inquisition will not return US of A to the dark ages.
[B]Really? I guess you haven't heard about war in Iraq and haven't filled up at the gas station recently... where do you think the biggest oil industry profits in the entire history of the oil industry go?? Bush's pocket! And that is just one example. I won't go into the defense sector which, by the Iraq war, was assured very good business for years!
Now, you're really going overboard here!
I voted against him twice, and am vigorously against the war in Iraq, but be sensible. That really is uncalled for.
I'm leaving the 3 Bush references in, but let's get back on topic please. The DMCA was passed unanimously by the US Senate and signed into law by Bill Clinton in 1998.
Apple's DMCA claim is that these guys are disseminating information, which has no other logical purpose, than to facilitate the circumvention of measures taken by Apple to prevent violation of copyright. The exceptions would be
1) Need to circumvent to ascertain how to make another program interoperate with OS X
2) Non-profit organizations may circumvent in order to discover whether they wish to purchase the material
3) Circumvention is allowed in order to disable a function that collects personal information on an actual person without the person's consent
4) Circumvention is allowed for the purpose of genuine research into cryptographic techniques
5) Law enforcement.
The only one of these that comes close is #1, and there is no "other" program that they are trying to interoperate with OS X, so that really does not hold up. This is (#1) the paragraph under which RealNetworks was justifying their "Harmony" app - circumventing FairPlay in order to make their app interoperate with the iPod. And even if you circumvent under #1, that does not allow you to alter the circumvented program to make it work - only to discover how to make your app work with it.
I'm leaving the 3 Bush references in, but let's get back on topic please. The DMCA was passed unanimously by the US Senate and signed into law by Bill Clinton in 1998.
Apple's DMCA claim is that these guys are disseminating information, which has no other logical purpose, than to facilitate the circumvention of measures taken by Apple to prevent violation of copyright. The exceptions would be
1) Need to circumvent to ascertain how to make another program interoperate with OS X
2) Non-profit organizations may circumvent in order to discover whether they wish to purchase the material
3) Circumvention is allowed in order to disable a function that collects personal information on an actual person without the person's consent
4) Circumvention is allowed for the purpose of genuine research into cryptographic techniques
5) Law enforcement.
The only one of these that comes close is #1, and there is no "other" program that they are trying to interoperate with OS X, so that really does not hold up. This is (#1) the paragraph under which RealNetworks was justifying their "Harmony" app - circumventing FairPlay in order to make their app interoperate with the iPod. And even if you circumvent under #1, that does not allow you to alter the circumvented program to make it work - only to discover how to make your app work with it.
At least someone here has read actual reference material.
Is there is no EULA on DVDs, CDs, books or art, so what makes software so differant?
Actually there can be, but there isn't because of convention.
An artist can very well tell you/sell you one of their paintings to hang on your wall for a period of time without actually selling you the right to own the art.
As for music. look at the itms agreement. It gives you the right to own the music but to keep it on ony 5 computers. This is a limitation on your rights of ownership. Many things are. Property law is filled with just such examples
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Originally posted by a_greer
No...I buy software...
I go to the store, I pick up a packege, lets say, Photoshop. The box says Photoshop CS2, not License for Photoshop CS2, not Photoshop CS2 license.
No, you license software. If you BUY the software then you OWN the code.
You don't OWN the code. You OWN the right to use the code subject to the EULA.
I happen to have a box from Tiger. On the box printed on the side is this notice.
IMPORTANT: Use of this product is subject to acceptance of the software license agreement(s) included in this package.
To use the driving analogy again.
You receive from the state a Drivers License. As soon as you clear the parking lot You drive 160 mph. A police officer pulls you over and arrests you for reckless driving. A criminal offense.
You argue. I OWN THE LICENSE I can do anything I want.
You go to jail.
You lose your license to drive.
You buy Apple's license you must act within the terms of the license.
Another analogy.
I sell to you a license to fish in MY lake for 10.00. I own the lake, and all land around it.
You agree that you will use only non barbed hooks and paint your rowboat yellow.
You agree and give me 10.00
On Fishi'n day you, and 45 of your friends each show up in a bright red bass boat with 300hp. Speed out to the center of the lake and throw in a stick of dynamite. The dynamite explodes and all of the fish rise to the surface either dead or stunned. You collect all of the fish and roar back to your pickup truck.
I sue you for violation of the End User Fishing License.
I argue.
The license was for one single use.
You argue.
I paid 10 bucks I should be able to share it with whomever I choose.
I argue:
You used dynamite instead of the non barbed hooks.
You argue. I paid ten bucks and who cares how I fish the lake is mine.
I argue
You used a gas powered bassboat in the lake instead of the environmentally safer rowboat.
You argue:
I paid 10.00 bucks and who cares what hardware I use. The lake is mine.
I argue:
You used bright red paint instead of the agreed yellow. A clear violation of the license.
You argue:
Who cares what paint I used. It is none of your business what I do with my hardware and It is better to be a pirate than join the navy.
I revoke your license to use my lake.
I sue you/you sue me.
I sue you for $450. dollars in lost revenue due me by you giving away the use of my lake to your friends.
I also sue you for damages in relation to the damage to the lakes ecosystem and the fish stocks within the lake.The gasoline killed the algae and the dynamite killed off the fish and the other marine creatures. The wake from the boat caused serious erosion and flooded surrounding fields. The lake cost several tens of millions to buy and to stock and costs a significant amount of money per year to keep in it's pristine condition and still be useable for fishing.
You counter sue me and argue, I paid $10. I should be able to use the lake and all of its contents as I see fit. That there is no license conferred in actuality it is a right of ownership conferred. Or, more absurdly, I own the lake.
These are the basics of the legal issues involved here.
...The DMCA was passed unanimously by the US Senate and signed into law by Bill Clinton in 1998.
Apple's DMCA claim is that these guys are disseminating information, which has no other logical purpose, than to facilitate the circumvention of measures taken by Apple to prevent violation of copyright. The exceptions would be
1) Need to circumvent to ascertain how to make another program interoperate with OS X
BINGO!
The American Heritage Dictionary defines a program, in the context of computers as "A set of coded instructions that enables a machine, especially a computer, to perform a desired sequence of operations."
Well, the people at OS-X-86 want their OSX which came with their legaly purchased Macs to interface with the low level programs on the generic PCs, such as BIOS and processor commands in order to preform a desiered sequence of operations, loading the kernal, moduals, and GUI into memory so that other applications may be used.
For years people have been running 68x00 emulators using Mac OS9 and earlier, and lately, PearPC and such things to run OSX, so, why can PearPC tell people how to emulate an archetexture to run OSX but we cant talk about a way to fake out the OS to ignore a lack of EMI or SSE3?
there have been some particularly idiotic assertions made concerning copyrights, fair use and the dmca over the past few years. most of these have been repeated in these forums and specifically in this thread. since these assertions are born of ignorance, let's try to draw the veil away.
"It [fair use] says that you can create a copy of X material for personal use, and that action is labeled as "Fair Use", wether the copyright owner agrees or not."
it [17 usc 107] says nothing of the sort. it simply puts limitations on the exclusive rights of the copyright holder to allow for certain activities (e.g. criticism, comment, news reporting, teaching, scholarship, research...). each case is examined in light of the 4 criteria (codified into the code from folsom v. marsh in 1976) of purpose, nature of the work, amount of the work copied and the effect on the potential market. in the particular case of copying os x in order to run it on generic hardware, this use would fail at least on 3 count and in most cases is would probably fail purpose also. there is no "personal use" exception to current copyright laws, however there is specific exemption [17 usc 117] for creating backups to computer programs. the only lawful use for these copies is as backups and the rights to them are tied to the original.
"If there's a case where DMCA was used successfuly to limit/ban copies of software/cd/books legally bought for backup purposes as envisioned under Fair Use then I'd like to know it."
the dmca and fair use are disparate issues and the dmca [17 usc 1201(c)] makes specific allowance for fair use. as previously shown, fair use allows for certain activities under certain conditions. however, the dmca [17 usc 1201(a)(1)(A)] may limit this right by limiting the ability to make copies. it is not only conceivable but rather common to have situations where one may have a fair use right to a use but lack the ability. the obvious example would be 321 studios v. mgm.
"You can decide for yourself wether it's the EULA(s) that are the supreme law in this case, or laws adopted by The United Statea Congress."
since in bowers v. baystate tech. the court found that "private parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the copyright act" it would seem that eula would be the correct choice to rely on.
"What if I modify the code that is commonly known as 'Darwin' and is found on all OS X releases sold today? Would modifying OS X be BREAKING THE LAW then too, since Darwin is, in fact, intended to be modified, and it is, in fact, part of OS X?"
each of the items are distributed under their own license. neither of these licenses have any force concerning the other item.
"You buy music. You buy books. you buy art. You license software."
nope. in general you may be buying a specific copy and may have certain rights pertaining to that copy. it is also possible that you may (at the copyright holder's discretion) be simply purchasing limited rights to the item via a licensing agreement (which is currently the case with commercial software).
"Is there is no EULA on DVDs, CDs, books or art, so what makes software so differant?"
the copyright holder's discretion. they would be well within their right to only distribute their products under a contract. since most of the restrictions in a software eula are irrelevant to dvd's, cd's books and art, there isn't any compelling reason to do so.
"The American Heritage Dictionary defines a program..."
more importantly, "necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention" [17 usc 1201(f)(1) and "for purposes of this subsection, the term interoperability means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged" [17 usc 1201(f)(4)], which seems to clearly indicate that attempting to run the os on hardware that is contractually prohibited does not fit the exemption.
the issues here are incredibly simple.
1) as the copyright holder apple has the exclusive right to determine distribution.
2) they have decided to only distribute their os under a licensing agreement.
3) an abundance of case law exist to support the validity of eula's as binding contracts.
4) since os x will not run on most pc's, one can infer that there is a technological measure controlling this access.
5) circumventing this measure would be a violation of copyright law [17 usc 1201(a)(1)(A)].
6) this circumvention would also be a breech of contract (unless it was stolen in the first place).
any citations, cases or dates i used were off the top of my head, so i may have a detail wrong here or there, though i'm confident of them conceptually.
"Is there is no EULA on DVDs, CDs, books or art, so what makes software so differant?"[/QUOTE0
Actually, there is a EULA with all the items mentioned.
CD's and DVD's mention the copyrights, and say (though not always using the same exact words:
"All rights reserved. Unauthorized duplication is a violation of applicable laws."
Books also have a EULA. Depending on when the book was published, it will be different. An older book I have here (All Quiet On The Western Front, pub. 1929 ed.)says:
"All rights reserved."
A much more modern book (Foucaults Pendulum, pub. 1988 ed.) says:
"All right reserved under International and Pan-American Copyright Conventions. " (Then, who published it.)
"No part of this publication may be reproduced in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher."
Then they tell where to write to get permission.
An even newer book I just bought recently (Decoding The Universe, pub. 2006 ed.) goes even further:
"All rights reserved.
Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.
The scanning, uploading, and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions and do not participate in or encourage electronic piracy of copyrightable materials. Your support of the author's rights is appreciated."
Those were just books I pulled from my library at random.
Art sometimes comes with a EULA as part of the bill of sale as well. Most of the work I've bought from gallery's have them.
But it generally is just done for original works of art (numbered copies, or one of a kind, signed works). Cheap mass produced work may have that, but the impetus to do something illegal with those is far less.
Remember that three out of four works of art sold on Ebay are fake!
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.
Limitations on exclusive rights: Computer programs...
duh, really? do you really believe that i'm unaware of that section, particularly in light of the fact that i cited and gave a brief description of it? how does this relate to fair use (hint: it doesn't)? how would this support that one could make a copy for personal use (hint: it wouldn't)? how would this confer rights beyond those granted in the license agreement (hint: it wouldn't)? so in short, in order to support your insipid claim that based on fair use one can make a copy for personal use whether the copyright holder agrees or not, you cite an irrelevant section that allows one to make an copy that is for archival (not personal) use and has nothing to do with fair use. ok, whatever you say boss.
This has already been said, most likely, however, I would like to voice my opinion and thoughts on this subject.
Microsoft had it right. They provided software to their customers to run on computer hardware which they didn't produce or have rights to.
MS didn't have to design, produce and market hardware for their software to run on, that was free and already done. Their software runs on many computers. They make money off every computer sold with their products on it and that is a huge markets.
Apple should follow suit and port/optimize a version of MAC OSX to work on Intel and AMD based IBM Compatible PCs.
OSX is far easier to use that Windows and is also a faster OS (from my experience). There are many users out there who don't have either the inclination, time or patience to learn how to use Microsoft products and deal with the viruses, spyware and other malware. Lets not even get into the Blue Screens of death and other such blatent faults in the MS operating systems.
Apple would probably make more money selling their OSX and other software packages to the world of PCs than they would ever selling their own APPLE brand computers.
That being said, i suppose there would be trouble with this because then users who want to run OSX woudln't have to buy a Apple Mac computer and that would possibly kill Apple Computers (hardware side of things).
how does this relate to fair use (hint: it doesn't)? how would this support that one could make a copy for personal use (hint: it wouldn't)? how would this confer rights beyond those granted in the license agreement (hint: it wouldn't)?
Quote:
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
Quote:
so in short, in order to support your insipid claim that based on fair use one can make a copy for personal use whether the copyright holder agrees or not, you cite an irrelevant section that allows one to make an copy that is for archival (not personal) use and has nothing to do with fair use.
Had you actually followed the discussion, you would understand that the issue debated between me and melgross was not wether such usage is personal or archival (btw, archiving of things is personal use, since if your original CD is damaged, you can use your archived copy) but wether you are allowed to make copies of a CD without the explicit permission of the copyright owner, no matter what the EULA says.
The law, as quoted by me, says that it is perfectly legal to do so. Or do you seriously claim that the law quoted does not support making copies of said CDs if they're for personal use (archival)?
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it should be abundantly clear that copying and pasting does not confer understanding and that you may want to spend a bit more time on that comprehension thing. [/B]
You might want to take it easy here a little with personal attacks as this is not slashdot. What is clear is this: you claim one thing, the law says something else. Guess who the courts will cite when they make decisions about Fair Use.
That's a good point. Everybody knows that most people never read the EULA, so it's questionable whether it really is a binding contract. Clicking OK to accept the terms is not the same as signing a contract.
1) melgross makes a post about the rights of the licensor.
2) in reference to this post, you claimed "It says that you can create a copy of X material for personal use, and that action is labeled as "Fair Use", wether the copyright owner agrees or not"
2) i responded to that specific claim by providing a relevant cite and explaining fair use. this explanation should have provided more than an enough information to determine that there is no "personal use" exemption within fair use or otherwise. additionally, i point out that there is an exemption for the archival of computer programs (again providing the relevant cite).
3) your response is to copy and paste the the cite that i had previously provided.
4) i note that this cite has nothing to do with fair use, does not support copying for personal use and does not preempt or grant further rights than a licensing agreement.
5) you make some further specious and disingenuous claims.
hmmm... seem that i've followed the discussion pretty well.
"archiving of things is personal use"
more specifically, archiving of things may be personal use. however the statement is not reflexive, personal use is not archiving. as such claiming that the right to archival of a particular class of materials somehow equates to a personal use exemption, is ludicrous.
"but wether you are allowed to make copies of a CD without the explicit permission of the copyright owner, no matter what the EULA says"
perfect example of a disingenuous claim. in a thread about software that is only (legally) available under license, in response to post that makes no mention of cd's, you have a discussion about ones right to copy cd's. right... even if this were the case, it has already been held that one can contractually forego rights that may have been otherwise granted, therefore we once again come to the conclusion that you're wrong.
"The law, as quoted by me, says that it is perfectly legal to do so"
which would support my assertion that one need not understand something to quote it. the section of law that you quoted deals with a singular class of material and 2 very specific provisions within that class. this does little to support the existence of a "personal use" exemption. additionally, a conscionable contract that preempts this right is not inconceivable. not to mention that a software eula's will either accept such rights or explicitly deal with them.
"Or do you seriously claim that the law quoted does not support making copies of said CDs if they're for personal use (archival)? "
i have made the following claims
1) section 117 of title 17 has nothing to do with section 107.
2) there is no "personal use" exemption.
3) personal use is not equivalent to archival.
4) it is legal to contractually forego rights (e.g. a nda precludes the right to free speech).
additionally, i will claim that archival of a cd would be covered by 117 if and only if it contained only computer programs and any contract did not prohibit such action.
"You might want to take it easy here a little with personal attacks as this is not slashdot"
this was not a personal attack, simply that an observation that it seems very common for people to copy and paste or to quote without understanding the information. additionally, i suggested that spending more time reading with an eye toward comprehending would be a good thing for you. while more terse, it's not much different than your (misguided) suggestion that i had not followed the discussion. however, you've reported me, i've been warned and my "flame" has been deleted, so i'll try harder in the future to not hurt your feelings.
"What is clear is this: you claim one thing, the law says something else."
really? what have i claimed that is at odds with what the law says?
"Guess who the courts will cite when they make decisions about Fair Use."
exactly the same source that i would (and have), and that is most definitely not section 117.
"Microsoft had it right. They provided software to their customers to run on computer hardware which they didn't produce or have rights to."
and it was their right to do so.
"Apple should follow suit and port/optimize a version of MAC OSX to work on Intel and AMD based IBM Compatible PCs."
and it is their right to decline to do so.
"Apple would probably make more money selling their OSX and other software packages to the world of PCs than they would ever selling their own APPLE brand computers."
apple is and has been doing quite well (one of the few consistently profitable computer companies over the past few years). with that in mind, there seems to be little reason for them to change their philosophy, which is not to maximize profit but to create what they believe is the best products and assume that profit will follow.
This has already been said, most likely, however, I would like to voice my opinion and thoughts on this subject.
Microsoft had it right. They provided software to their customers to run on computer hardware which they didn't produce or have rights to.
MS didn't have to design, produce and market hardware for their software to run on, that was free and already done. Their software runs on many computers. They make money off every computer sold with their products on it and that is a huge markets.
Apple should follow suit and port/optimize a version of MAC OSX to work on Intel and AMD based IBM Compatible PCs.
OSX is far easier to use that Windows and is also a faster OS (from my experience). There are many users out there who don't have either the inclination, time or patience to learn how to use Microsoft products and deal with the viruses, spyware and other malware. Lets not even get into the Blue Screens of death and other such blatent faults in the MS operating systems.
Apple would probably make more money selling their OSX and other software packages to the world of PCs than they would ever selling their own APPLE brand computers.
That being said, i suppose there would be trouble with this because then users who want to run OSX woudln't have to buy a Apple Mac computer and that would possibly kill Apple Computers (hardware side of things).
Maybe its worth the gamble???
... My 2 cents ...
That's nice, and has been discussed many times, and will be again. But it has nothing to do with this argument.
That's a good point. Everybody knows that most people never read the EULA, so it's questionable whether it really is a binding contract. Clicking OK to accept the terms is not the same as signing a contract.
It's an interesting point, but it's not true.
EULA is based upon copyright. EULA is recognized as a contract. as such it is as much law as any contract. But, as copyright gives specific rights, it is stronger than most contracts.
In the States where shrinkwrap is recognized, it is understood to be an "unnegotiated contract". Some States don't recognize that.
But, as I've already said, even in those States that do, companies will usually give your money back once you read the license, and don't accept it.
Not reading the EULA is no excuse. That's the fault of the user.
Comments
Originally posted by ecking
[B]You know what I meant I am sick to death of your technicalities.
And I'm sick to death of your uninformed trolling.
if Darwin is meant to be modified then that does not count.
Why not? Darwin is part of OS X. Therefore, OS X can be modified, at least parts of it, which goes against your 'OS X IS NOT TO BE MODIFIED!11!' charade you have going here.
Can darwin be modified to make OSX work on a PC? No. The modifications needed to make OSX work on a PC are not ones that are extended to the user, you know that, you know what I meant. Quit being an ass.
No, you quit calling people names here, and understand that just because Aqua and other little applications and whatnot are proprietary, that doesn't mean that the whole of OS X is, therefore you can't lump the entire OS X operating system into your little theory about un-modifiable software.
I guess these are 'technicalities' though.
So gene finally found the introduction of the term that has been found in the courts to be unworkable and unsupportable for broad application of protections. bravo - not.
I'm sure you think you're being smart and funny, but this is some incomprehensible rant you got going here. Care to clarify?
The language itself does not say what fair use is. it says consider some things and make a ruling. Not a single mention of any of the modifications or backups here either. Is there? Because the law is so pathetic at actually defining fair use it is case by case if you are taken to court.
I guess you could do a better job at re-writing that law since it's so 'pathetic'. But Fair Use has been codified into United States laws, and regardless of your opinions of its laws - those laws are legally valid. Wether or not they explain every single possible case where Fair Use could be used as an argument is also irrelevant (though I'm sure you could do a better job of explaining what 'Fair Use' is) - what is relevant is that a judge reads the law and interprets the law as he/she thinks it was meant to be. Judges become judges for a reason: to interpret the law and decide what the law says.
No congressional protections of any kind. Just some words to tell judges -- "Hey it's up to you if you ever see this!"
Congressional protection? What the hell is that? Just some words? What do you think laws are, if not 'some words' that have a meaning?
Thanks for confirming my point! You are a gem!!!
I'm amused at seeing you jump around claiming I made your point when it's not clear if you even had a point to begin with.
Other than that one issue, please feel free to argue your position as vigorously as you wish.
Rest assured that the thread will NOT be locked - I do not lock threads; it is against my religion. However, posts containing name calling are subject to editing (if I have the energy) or unceremonious deletion (if I don't).
Thank you for your cooperation.
-JL
Bush isn't a great president...but he's nothing like Hitler, Tse-Tung and co. and nothing like the dictators in many african countries. And he would never be allowed to use the country's resources for himself.
Really? I guess you haven't heard about war in Iraq and haven't filled up at the gas station recently... where do you think the biggest oil industry profits in the entire history of the oil industry go?? Bush's pocket! And that is just one example. I won't go into the defense sector which, by the Iraq war, was assured very good business for years!
No congressional protections of any kind. Just some words to tell judges -- "Hey it's up to you if you ever see this!"
That is why it is wise to host the website overseas in country that is not crippled by DMCA... like Sweden.
Copyright is an important right and must be protected. However, I would dare you to find any costitutional and law expert that will tell you that copyright is more important than free speech!
DMCA does not protect copyright, but rather protects profits of companies at the expense of innovation.
In the case with Apple, there is no argument that can be made that figuring out how one can run OSX on non Apple machines can, in any way, tramples on, so called, intellectual property, or even somehow makes a dent in Apple's profits. As long as Apple doesn't officially endorse it, it will never gain popularity among general public.
All of these discussions and attempts to run OSX on non-apple PCs are purely of academic nature. And one has to be really stupid to think that any judge or non-physical law can forbid it. It is the same way that inquisition was trying to outlaw scientific thought during Dark Ages. Nobody can outlaw gravity, light, or the human curiosity. I just hope that this inquisition will not return US of A to the dark ages.
Originally posted by skatman
[B]Really? I guess you haven't heard about war in Iraq and haven't filled up at the gas station recently... where do you think the biggest oil industry profits in the entire history of the oil industry go?? Bush's pocket! And that is just one example. I won't go into the defense sector which, by the Iraq war, was assured very good business for years!
Now, you're really going overboard here!
I voted against him twice, and am vigorously against the war in Iraq, but be sensible. That really is uncalled for.
Apple's DMCA claim is that these guys are disseminating information, which has no other logical purpose, than to facilitate the circumvention of measures taken by Apple to prevent violation of copyright. The exceptions would be
1) Need to circumvent to ascertain how to make another program interoperate with OS X
2) Non-profit organizations may circumvent in order to discover whether they wish to purchase the material
3) Circumvention is allowed in order to disable a function that collects personal information on an actual person without the person's consent
4) Circumvention is allowed for the purpose of genuine research into cryptographic techniques
5) Law enforcement.
The only one of these that comes close is #1, and there is no "other" program that they are trying to interoperate with OS X, so that really does not hold up. This is (#1) the paragraph under which RealNetworks was justifying their "Harmony" app - circumventing FairPlay in order to make their app interoperate with the iPod. And even if you circumvent under #1, that does not allow you to alter the circumvented program to make it work - only to discover how to make your app work with it.
Originally posted by lundy
I'm leaving the 3 Bush references in, but let's get back on topic please. The DMCA was passed unanimously by the US Senate and signed into law by Bill Clinton in 1998.
Apple's DMCA claim is that these guys are disseminating information, which has no other logical purpose, than to facilitate the circumvention of measures taken by Apple to prevent violation of copyright. The exceptions would be
1) Need to circumvent to ascertain how to make another program interoperate with OS X
2) Non-profit organizations may circumvent in order to discover whether they wish to purchase the material
3) Circumvention is allowed in order to disable a function that collects personal information on an actual person without the person's consent
4) Circumvention is allowed for the purpose of genuine research into cryptographic techniques
5) Law enforcement.
The only one of these that comes close is #1, and there is no "other" program that they are trying to interoperate with OS X, so that really does not hold up. This is (#1) the paragraph under which RealNetworks was justifying their "Harmony" app - circumventing FairPlay in order to make their app interoperate with the iPod. And even if you circumvent under #1, that does not allow you to alter the circumvented program to make it work - only to discover how to make your app work with it.
At least someone here has read actual reference material.
Originally posted by a_greer
No...I buy software...
Is there is no EULA on DVDs, CDs, books or art, so what makes software so differant?
Actually there can be, but there isn't because of convention.
An artist can very well tell you/sell you one of their paintings to hang on your wall for a period of time without actually selling you the right to own the art.
As for music. look at the itms agreement. It gives you the right to own the music but to keep it on ony 5 computers. This is a limitation on your rights of ownership. Many things are. Property law is filled with just such examples
Originally posted by a_greer
No...I buy software...
I go to the store, I pick up a packege, lets say, Photoshop. The box says Photoshop CS2, not License for Photoshop CS2, not Photoshop CS2 license.
No, you license software. If you BUY the software then you OWN the code.
You don't OWN the code. You OWN the right to use the code subject to the EULA.
I happen to have a box from Tiger. On the box printed on the side is this notice.
IMPORTANT: Use of this product is subject to acceptance of the software license agreement(s) included in this package.
To use the driving analogy again.
You receive from the state a Drivers License. As soon as you clear the parking lot You drive 160 mph. A police officer pulls you over and arrests you for reckless driving. A criminal offense.
You argue. I OWN THE LICENSE I can do anything I want.
You go to jail.
You lose your license to drive.
You buy Apple's license you must act within the terms of the license.
Another analogy.
I sell to you a license to fish in MY lake for 10.00. I own the lake, and all land around it.
You agree that you will use only non barbed hooks and paint your rowboat yellow.
You agree and give me 10.00
On Fishi'n day you, and 45 of your friends each show up in a bright red bass boat with 300hp. Speed out to the center of the lake and throw in a stick of dynamite. The dynamite explodes and all of the fish rise to the surface either dead or stunned. You collect all of the fish and roar back to your pickup truck.
I sue you for violation of the End User Fishing License.
I argue.
The license was for one single use.
You argue.
I paid 10 bucks I should be able to share it with whomever I choose.
I argue:
You used dynamite instead of the non barbed hooks.
You argue. I paid ten bucks and who cares how I fish the lake is mine.
I argue
You used a gas powered bassboat in the lake instead of the environmentally safer rowboat.
You argue:
I paid 10.00 bucks and who cares what hardware I use. The lake is mine.
I argue:
You used bright red paint instead of the agreed yellow. A clear violation of the license.
You argue:
Who cares what paint I used. It is none of your business what I do with my hardware and It is better to be a pirate than join the navy.
I revoke your license to use my lake.
I sue you/you sue me.
I sue you for $450. dollars in lost revenue due me by you giving away the use of my lake to your friends.
I also sue you for damages in relation to the damage to the lakes ecosystem and the fish stocks within the lake.The gasoline killed the algae and the dynamite killed off the fish and the other marine creatures. The wake from the boat caused serious erosion and flooded surrounding fields. The lake cost several tens of millions to buy and to stock and costs a significant amount of money per year to keep in it's pristine condition and still be useable for fishing.
You counter sue me and argue, I paid $10. I should be able to use the lake and all of its contents as I see fit. That there is no license conferred in actuality it is a right of ownership conferred. Or, more absurdly, I own the lake.
These are the basics of the legal issues involved here.
Originally posted by lundy
...The DMCA was passed unanimously by the US Senate and signed into law by Bill Clinton in 1998.
Apple's DMCA claim is that these guys are disseminating information, which has no other logical purpose, than to facilitate the circumvention of measures taken by Apple to prevent violation of copyright. The exceptions would be
1) Need to circumvent to ascertain how to make another program interoperate with OS X
BINGO!
The American Heritage Dictionary defines a program, in the context of computers as "A set of coded instructions that enables a machine, especially a computer, to perform a desired sequence of operations."
Well, the people at OS-X-86 want their OSX which came with their legaly purchased Macs to interface with the low level programs on the generic PCs, such as BIOS and processor commands in order to preform a desiered sequence of operations, loading the kernal, moduals, and GUI into memory so that other applications may be used.
For years people have been running 68x00 emulators using Mac OS9 and earlier, and lately, PearPC and such things to run OSX, so, why can PearPC tell people how to emulate an archetexture to run OSX but we cant talk about a way to fake out the OS to ignore a lack of EMI or SSE3?
"It [fair use] says that you can create a copy of X material for personal use, and that action is labeled as "Fair Use", wether the copyright owner agrees or not."
it [17 usc 107] says nothing of the sort. it simply puts limitations on the exclusive rights of the copyright holder to allow for certain activities (e.g. criticism, comment, news reporting, teaching, scholarship, research...). each case is examined in light of the 4 criteria (codified into the code from folsom v. marsh in 1976) of purpose, nature of the work, amount of the work copied and the effect on the potential market. in the particular case of copying os x in order to run it on generic hardware, this use would fail at least on 3 count and in most cases is would probably fail purpose also. there is no "personal use" exception to current copyright laws, however there is specific exemption [17 usc 117] for creating backups to computer programs. the only lawful use for these copies is as backups and the rights to them are tied to the original.
"If there's a case where DMCA was used successfuly to limit/ban copies of software/cd/books legally bought for backup purposes as envisioned under Fair Use then I'd like to know it."
the dmca and fair use are disparate issues and the dmca [17 usc 1201(c)] makes specific allowance for fair use. as previously shown, fair use allows for certain activities under certain conditions. however, the dmca [17 usc 1201(a)(1)(A)] may limit this right by limiting the ability to make copies. it is not only conceivable but rather common to have situations where one may have a fair use right to a use but lack the ability. the obvious example would be 321 studios v. mgm.
"You can decide for yourself wether it's the EULA(s) that are the supreme law in this case, or laws adopted by The United Statea Congress."
since in bowers v. baystate tech. the court found that "private parties are free to contractually forego the limited ability to reverse engineer a software product under the exemptions of the copyright act" it would seem that eula would be the correct choice to rely on.
"What if I modify the code that is commonly known as 'Darwin' and is found on all OS X releases sold today? Would modifying OS X be BREAKING THE LAW then too, since Darwin is, in fact, intended to be modified, and it is, in fact, part of OS X?"
each of the items are distributed under their own license. neither of these licenses have any force concerning the other item.
"You buy music. You buy books. you buy art. You license software."
nope. in general you may be buying a specific copy and may have certain rights pertaining to that copy. it is also possible that you may (at the copyright holder's discretion) be simply purchasing limited rights to the item via a licensing agreement (which is currently the case with commercial software).
"Is there is no EULA on DVDs, CDs, books or art, so what makes software so differant?"
the copyright holder's discretion. they would be well within their right to only distribute their products under a contract. since most of the restrictions in a software eula are irrelevant to dvd's, cd's books and art, there isn't any compelling reason to do so.
"The American Heritage Dictionary defines a program..."
more importantly, "necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention" [17 usc 1201(f)(1) and "for purposes of this subsection, the term interoperability means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged" [17 usc 1201(f)(4)], which seems to clearly indicate that attempting to run the os on hardware that is contractually prohibited does not fit the exemption.
the issues here are incredibly simple.
1) as the copyright holder apple has the exclusive right to determine distribution.
2) they have decided to only distribute their os under a licensing agreement.
3) an abundance of case law exist to support the validity of eula's as binding contracts.
4) since os x will not run on most pc's, one can infer that there is a technological measure controlling this access.
5) circumventing this measure would be a violation of copyright law [17 usc 1201(a)(1)(A)].
6) this circumvention would also be a breech of contract (unless it was stolen in the first place).
any citations, cases or dates i used were off the top of my head, so i may have a detail wrong here or there, though i'm confident of them conceptually.
"Is there is no EULA on DVDs, CDs, books or art, so what makes software so differant?"[/QUOTE0
Actually, there is a EULA with all the items mentioned.
CD's and DVD's mention the copyrights, and say (though not always using the same exact words:
"All rights reserved. Unauthorized duplication is a violation of applicable laws."
Books also have a EULA. Depending on when the book was published, it will be different. An older book I have here (All Quiet On The Western Front, pub. 1929 ed.)says:
"All rights reserved."
A much more modern book (Foucaults Pendulum, pub. 1988 ed.) says:
"All right reserved under International and Pan-American Copyright Conventions. " (Then, who published it.)
"No part of this publication may be reproduced in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher."
Then they tell where to write to get permission.
An even newer book I just bought recently (Decoding The Universe, pub. 2006 ed.) goes even further:
"All rights reserved.
Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.
The scanning, uploading, and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions and do not participate in or encourage electronic piracy of copyrightable materials. Your support of the author's rights is appreciated."
Those were just books I pulled from my library at random.
Art sometimes comes with a EULA as part of the bill of sale as well. Most of the work I've bought from gallery's have them.
But it generally is just done for original works of art (numbered copies, or one of a kind, signed works). Cheap mass produced work may have that, but the impetus to do something illegal with those is far less.
Remember that three out of four works of art sold on Ebay are fake!
Originally posted by t_vor
it [17 usc 107] says nothing of the sort.
§ 117. Limitations on exclusive rights: Computer programs
Release date: 2005-08-01
(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.
Originally posted by Gene Clean
Limitations on exclusive rights: Computer programs...
duh, really? do you really believe that i'm unaware of that section, particularly in light of the fact that i cited and gave a brief description of it? how does this relate to fair use (hint: it doesn't)? how would this support that one could make a copy for personal use (hint: it wouldn't)? how would this confer rights beyond those granted in the license agreement (hint: it wouldn't)? so in short, in order to support your insipid claim that based on fair use one can make a copy for personal use whether the copyright holder agrees or not, you cite an irrelevant section that allows one to make an copy that is for archival (not personal) use and has nothing to do with fair use. ok, whatever you say boss.
(Flame deleted -JL)
Microsoft had it right. They provided software to their customers to run on computer hardware which they didn't produce or have rights to.
MS didn't have to design, produce and market hardware for their software to run on, that was free and already done. Their software runs on many computers. They make money off every computer sold with their products on it and that is a huge markets.
Apple should follow suit and port/optimize a version of MAC OSX to work on Intel and AMD based IBM Compatible PCs.
OSX is far easier to use that Windows and is also a faster OS (from my experience). There are many users out there who don't have either the inclination, time or patience to learn how to use Microsoft products and deal with the viruses, spyware and other malware. Lets not even get into the Blue Screens of death and other such blatent faults in the MS operating systems.
Apple would probably make more money selling their OSX and other software packages to the world of PCs than they would ever selling their own APPLE brand computers.
That being said, i suppose there would be trouble with this because then users who want to run OSX woudln't have to buy a Apple Mac computer and that would possibly kill Apple Computers (hardware side of things).
Maybe its worth the gamble???
... My 2 cents ...
Originally posted by t_vor
how does this relate to fair use (hint: it doesn't)? how would this support that one could make a copy for personal use (hint: it wouldn't)? how would this confer rights beyond those granted in the license agreement (hint: it wouldn't)?
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
so in short, in order to support your insipid claim that based on fair use one can make a copy for personal use whether the copyright holder agrees or not, you cite an irrelevant section that allows one to make an copy that is for archival (not personal) use and has nothing to do with fair use.
Had you actually followed the discussion, you would understand that the issue debated between me and melgross was not wether such usage is personal or archival (btw, archiving of things is personal use, since if your original CD is damaged, you can use your archived copy) but wether you are allowed to make copies of a CD without the explicit permission of the copyright owner, no matter what the EULA says.
The law, as quoted by me, says that it is perfectly legal to do so. Or do you seriously claim that the law quoted does not support making copies of said CDs if they're for personal use (archival)?
it should be abundantly clear that copying and pasting does not confer understanding and that you may want to spend a bit more time on that comprehension thing. [/B]
You might want to take it easy here a little with personal attacks as this is not slashdot. What is clear is this: you claim one thing, the law says something else. Guess who the courts will cite when they make decisions about Fair Use.
Originally posted by wally007
I'm sorry but EULA is not law.
That's a good point. Everybody knows that most people never read the EULA, so it's questionable whether it really is a binding contract. Clicking OK to accept the terms is not the same as signing a contract.
let me if i can follow this:
1) melgross makes a post about the rights of the licensor.
2) in reference to this post, you claimed "It says that you can create a copy of X material for personal use, and that action is labeled as "Fair Use", wether the copyright owner agrees or not"
2) i responded to that specific claim by providing a relevant cite and explaining fair use. this explanation should have provided more than an enough information to determine that there is no "personal use" exemption within fair use or otherwise. additionally, i point out that there is an exemption for the archival of computer programs (again providing the relevant cite).
3) your response is to copy and paste the the cite that i had previously provided.
4) i note that this cite has nothing to do with fair use, does not support copying for personal use and does not preempt or grant further rights than a licensing agreement.
5) you make some further specious and disingenuous claims.
hmmm... seem that i've followed the discussion pretty well.
"archiving of things is personal use"
more specifically, archiving of things may be personal use. however the statement is not reflexive, personal use is not archiving. as such claiming that the right to archival of a particular class of materials somehow equates to a personal use exemption, is ludicrous.
"but wether you are allowed to make copies of a CD without the explicit permission of the copyright owner, no matter what the EULA says"
perfect example of a disingenuous claim. in a thread about software that is only (legally) available under license, in response to post that makes no mention of cd's, you have a discussion about ones right to copy cd's. right... even if this were the case, it has already been held that one can contractually forego rights that may have been otherwise granted, therefore we once again come to the conclusion that you're wrong.
"The law, as quoted by me, says that it is perfectly legal to do so"
which would support my assertion that one need not understand something to quote it. the section of law that you quoted deals with a singular class of material and 2 very specific provisions within that class. this does little to support the existence of a "personal use" exemption. additionally, a conscionable contract that preempts this right is not inconceivable. not to mention that a software eula's will either accept such rights or explicitly deal with them.
"Or do you seriously claim that the law quoted does not support making copies of said CDs if they're for personal use (archival)? "
i have made the following claims
1) section 117 of title 17 has nothing to do with section 107.
2) there is no "personal use" exemption.
3) personal use is not equivalent to archival.
4) it is legal to contractually forego rights (e.g. a nda precludes the right to free speech).
additionally, i will claim that archival of a cd would be covered by 117 if and only if it contained only computer programs and any contract did not prohibit such action.
"You might want to take it easy here a little with personal attacks as this is not slashdot"
this was not a personal attack, simply that an observation that it seems very common for people to copy and paste or to quote without understanding the information. additionally, i suggested that spending more time reading with an eye toward comprehending would be a good thing for you. while more terse, it's not much different than your (misguided) suggestion that i had not followed the discussion. however, you've reported me, i've been warned and my "flame" has been deleted, so i'll try harder in the future to not hurt your feelings.
"What is clear is this: you claim one thing, the law says something else."
really? what have i claimed that is at odds with what the law says?
"Guess who the courts will cite when they make decisions about Fair Use."
exactly the same source that i would (and have), and that is most definitely not section 117.
ever heard that ignorance is no excuse?
"so it's questionable whether it really is a binding contract"
not really, there's plenty of case law supporting the use of clickwrap licenses as binding contracts.
"Clicking OK to accept the terms is not the same as signing a contract."
nope, it's not. but, that doesn't mean that it can't hold the same legal force.
and it was their right to do so.
"Apple should follow suit and port/optimize a version of MAC OSX to work on Intel and AMD based IBM Compatible PCs."
and it is their right to decline to do so.
"Apple would probably make more money selling their OSX and other software packages to the world of PCs than they would ever selling their own APPLE brand computers."
apple is and has been doing quite well (one of the few consistently profitable computer companies over the past few years). with that in mind, there seems to be little reason for them to change their philosophy, which is not to maximize profit but to create what they believe is the best products and assume that profit will follow.
Originally posted by Freudian
This has already been said, most likely, however, I would like to voice my opinion and thoughts on this subject.
Microsoft had it right. They provided software to their customers to run on computer hardware which they didn't produce or have rights to.
MS didn't have to design, produce and market hardware for their software to run on, that was free and already done. Their software runs on many computers. They make money off every computer sold with their products on it and that is a huge markets.
Apple should follow suit and port/optimize a version of MAC OSX to work on Intel and AMD based IBM Compatible PCs.
OSX is far easier to use that Windows and is also a faster OS (from my experience). There are many users out there who don't have either the inclination, time or patience to learn how to use Microsoft products and deal with the viruses, spyware and other malware. Lets not even get into the Blue Screens of death and other such blatent faults in the MS operating systems.
Apple would probably make more money selling their OSX and other software packages to the world of PCs than they would ever selling their own APPLE brand computers.
That being said, i suppose there would be trouble with this because then users who want to run OSX woudln't have to buy a Apple Mac computer and that would possibly kill Apple Computers (hardware side of things).
Maybe its worth the gamble???
... My 2 cents ...
That's nice, and has been discussed many times, and will be again. But it has nothing to do with this argument.
Originally posted by axis27
That's a good point. Everybody knows that most people never read the EULA, so it's questionable whether it really is a binding contract. Clicking OK to accept the terms is not the same as signing a contract.
It's an interesting point, but it's not true.
EULA is based upon copyright. EULA is recognized as a contract. as such it is as much law as any contract. But, as copyright gives specific rights, it is stronger than most contracts.
In the States where shrinkwrap is recognized, it is understood to be an "unnegotiated contract". Some States don't recognize that.
But, as I've already said, even in those States that do, companies will usually give your money back once you read the license, and don't accept it.
Not reading the EULA is no excuse. That's the fault of the user.