And so the court case between Apple and clone-maker Psystar continues. Claims are being thrown back and forth between the two companies, ranging from Apple invoking the DMCA, to Psystar claiming Apple’s Mac OS X copyright is invalid. We can add a new one to the list. Court documents reveal that Psystar claims it has bought its copies of Mac OS X fair and square – including some directly from Apple.
In the latest court documents, Psystar calls upon the first sale doctrine, which made its first appearance in the United States in 1908, but was made official by the US Congress in 1976. The doctrine states that buyers may give away or sell copyrighted material without the copyright holder’s permissions. Psystar claims:
Psystar acquired lawful copies of the Mac OS from Apple. Those copies were lawfully acquired from authorized distributors, including some directly from Apple; Psystar paid good and valuable consideration for those copies; Psystar disposed of those lawfully acquired copies to third-parties. Once a copyright owner consents to the sale of particular copies of a work, the owner may not thereafter exercise distribution rights with respect to those copies.
It remains to be seen if Psystar can actually invoke the first sale doctrine when it comes to software. Courts generally accept the fact that software is licensed, not sold, making the first sale doctrine irrelevant. However, there is a case regarding Adobe where the courts did agree that software can in fact be sold.
Apple declined to comment on the case, which will go to trial in April.
I don’t really believe that Psystar will win anything here.
But a part of me still hopes they do, just to see the chaos the market will fall into.
I so agree with you
Whether or not they think they can win isn’t the issue anymore. It’s what happens when they lose. If they lose a copyright case, and are found to have violated the DMCA, and the EULA, and whatever else Apple tries to stick them with, they will be hit so hard with the reparation-stick their great grandchildren will be paying it off. They have to fight tooth and nail, because the alternative is complete and total financial obliteration. Their credit rating will get so bad they won’t even be able to get a friend to lend them enough for a coke. Apple have to fight just as hard, because if Psystar win (which they probably won’t), dozens of companies doing exactly the same thing will pop up overnight, and Apple will have to be more competitive on price (gasp!).
No matter what happens, it’s already interesting to watch, and I think it will get more interesting in the near future.
And more importantly who with the deep pockets is funding them on this.
Question. Why you think it is a sure thing they will lose to Apple?
I simply think Psystar will lose to Apple because Apple probably have much more money, and aren’t going to let a dangerous verdict like this fall against them. They’ll appeal more times and pick at more technicalities than the SCO, if that’s what it takes.
“In the latest court documents, Psystar calls upon the first sale doctrine, which made its first appearance in the United States in 1908, but was made official by the US Congress in 1976. ”
You are here directly taking this information from ComputerWorld, which is wrong. The claim that Psystar is relying on the first-sale doctrine and that it legally purchased copies of OS X is old news, it was present in its first Answer.
“Apple declined to comment on the case, which will go to trial in April.”
Again, Mr Keizer from ComputerWorld gets it again wrong and this is since several of his articles on the subject. Consequently you also getting it wrong believing informations from non professionals. THE CASE IS NOT SLATED TO GO TO TRIAL IN APRIL BUT IN NOVEMBER.
Edited 2009-01-14 11:04 UTC
This is again the distraction tactic that Psystar have employed throughout this whole case. Good for you Psystar. But the issue is not whether you’ve purchased the copies you’re installing or whether you have the right to resell them. The issue is whether you have the right to resell them *installed on non-Apple branded hardware* thus violating the license terms. So your argument that you’ve payed for Mac OS X is completely irrelevant.
Edited 2009-01-14 11:20 UTC
Not at all. The EULA has yet to be upheld in court. There are some who believe the terms and conditions are not legal. If this is found to be so, then it is important to show each license was purchased.
OK, but the validity and legality, or the lack thereof, of the EULA has to be proven or disproven first, doesn’t it. This is what Psystar claims:
, and it says nothing about the EULA. Once the EULA is deemed void by a court of law, maybe proving the purchase of all licenses will have some relevance, but at this point it’s just stuffing, like the claim that Apple doesn’t own the trademark Mac OS X.
You completely missed the whole point of this case.
The argument here is that it’s not legal for Apple to limit your installation of the software once you’ve purchased it. In other words, the EULA is unenforceable. They cite the first sale doctrine, which has historically suggested that the seller can’t limit your right of what you do with the product once you buy it.
And that’s a dangerous thing. IF the court ruled in favor of Psystar, that would mean that:
– you can install any software on as many computers as you want as soon as you buy it
– you can LEGALLY hack DRM schemes incorporated in the OS (such as Vista)
– you can safely use any “free for personal use” software anywhere
– you can do any number of things that are normally forbidden by the EULA
because such a ruling would damage the validity of EULAs beyond repair.
That would be too big of a precedent for any judge to set. So it just won’t happen.
I’m not sure how you’re connecting the dots here, but your argument simply does not follow. It is possible to invalidate specific clauses of contracts–which an eula technically is–without voiding the entire contract. In this case, the only part that would end up being invalidated is the clause specifically forbidding the installation of OS X on non-Apple hardware. Nothing else need be affected in the slightest, so I don’t know where all your rubbish about invalidating DRM and making it legal to crack it comes from which, by the way, has nothing to do with eulas and is a completely different can of worms.
No it does not. It would mean you can install it on whatever computer you want but not on more than one.
That is already legal in many places.
I really dont see why you think this has anything to do with the case at hand.
I can already do any number of things forbidden by some EULA’s. Just because it is in a EULA doesn’t mean it’s a valid contract clause.
No it would not. This case is not about the validity of EULA’s, it is about the validity of the clauses in one specific EULA.
I really don’t know why so many people think that having parts of one EULA thrown away would invalidate all of them. It’s like saying having clauses in one specific contract invalidated would invalidate all contracts in the whole world. Absurd reasoning.
The question is whether or not you can legally limit the installation of the software onto only Apple branded hardware, not whether or not you can specify standard licensing terms.
Ok, so i’ve taken it over the top a bit. But I can still imagine people suing against EULAs (or specific clauses, i get the message) left and right if Psystar wins the case.
They already are, friend. EULAs are often packed with unenforceable BS.
Uh, good? Most EULAs are full of crap. If companies start having to actually make logical, legal, enforceable, and reasonable EULAs, then things get better for end-users.
The first-sale doctrine comes in pretty simple with this case, I think. PyStar buys a valid OS X license and then installs it onto one single machine. It then ships the machine (and probably the original media) to a client, which is the exact same thing Apple does (and that every other computer manufacturer does with Windows). The idea is that the computer with the installed copy of OS X can be sold after the installation, e.g. after PyStar executed the license terms.
The EULA validity claims are also simple. It is a question of whether or not Apple can legally restrict which hardware its software is installed on. On the one hand, I believe it should be legal — it’s very restrictive, but its their copyrighted work and I see no reason why that shouldn’t be an allowed restriction. On the other hand, it is overly restrictive to tell people what they can do with a copyrighted work in the privacy of their own home, and I believe that clause might violate Fair Use.
The bit about the trademark claims on OS X are probably invalid, but the reasoning is likely because Apple is using trademark claims to state that PyStar cannot advertise its use of OS X. I’m not sure if that’s even a legal use of trademarks, but a shot in the dark to invalidate the trademark would be one way of defeating such a claim.
P.S. Obviously, I am not a lawyer nor am I schooled in corporate law.
Which would get me back to my ranting post earlier. If the vendor can’t limit my right of what i do with a product once i bought it, then EULAs are nothing more than scrap paper.
Now, which of the two approaches DO they take? Invalidate the EULA as a whole or just the paragraph about the hardware ties?
Are you suggesting that by opening the shrinkwrap of a piece of software, the manufacturer can subject you to any terms at all?
If so, then by reading the above paragraph, you agree to send me a check for all the money in your bank account.
“Are you suggesting that by opening the shrinkwrap of a piece of software, the manufacturer can subject you to any terms at all?”
Opening the shrinkwrap has nothing to do with it. You can take the shrinkwrap off and return the product if you do not agree with the license terms inside. That has been already cleared in the courts. As well, clicking a button in software has also been proven in courts to be valid acceptance of a EULA. The only item in question is the clause of whether Apple can restrict what hardware it runs on. It really comes down to just that.
That is correct. Most EULAs are essentially worthless.
An EULA (or any private contract) cannot validly/legally prohibit the purchaser in a way that contradicts fair trade law and copyright law. So, restrictions in EULAs are usually invalid or simply restate existing copyright law.
However, an EULA can be very valuable if it grants additional permissions to the standard rights allowed by copyright law. Of course, the copyright owner can put restrictions on these extra permissions. Such is the case in most open source license agreements — they permit extra liberties, usually with some restrictions.
The problem is that Nobody buys Mac OS X.
It’s licensed for usage.
http://images.apple.com/legal/sla/docs/macosx104.pdf
1. General. The software (including Boot ROM code), documentation and any fonts accompanying this License whether on disk, in read only memory, on any other media or in any other form
(collectively the ^aEURoeApple Software^aEUR) are licensed, not sold, to you by Apple Inc. (^aEURoeApple^aEUR) for use only under the terms of this License, and Apple reserves all rights not expressly granted to you. The
rights granted herein are limited to Apple’s and its licensors’ intellectual property rights in the Apple Software and do not include any other patents or intellectual property rights.
Maybe I missed something, but I wasn’t aware there was ever any doubt as to whether Psystar legally purchased their copies of OS X. I thought it had already been established that they did, in fact, legally purchase it; a fact, as far as I’m aware, that even Apple does not dispute. Apple isn’t going after them for purchasing and reselling illegal copies of OS X, but for violating their eula.
Hold on, hold on. Only Apple hardware? What does the hardware have to do with the software once I paid Apple for it?
I understand Apple refusing to support non-approved hardware, but I write my own device drivers. I don’t need their support to make my hardware work.
My computer (non-apple) has a piece of hardware installing in it that did not come from any computer/electronics company, period. It is handmade, by me personally, it serves a need for a problem that you can’t buy a cheap solution for today.
What you are saying is if I even buy an Apple computer then install this custom NON-Apple hardware with it’s NON-Apple software, that Apple has the rights to stop me from selling it because they have not approved my design?
That’s exactly correct, as long as you aren’t breaking any laws – making illegal copies, claiming their software as your own, harming their brand, etc.
No, not even Apple would care if you’re self-building hardware for your own use. But if you were making hardware to sell, hardware that competed with their own products, you’d end up in same courtroom as Psystar.
That’s what this is all about after all, Apple eliminating competition to protect their hardware sales…
Edited 2009-01-14 16:45 UTC
What it has to do with Apple is that you aren’t BUYING the software when you pay Apple for it, you are buying a LICENSE to use it, and you therefore are required to agree to the terms of the license. And just because Pystar doesn’t like the license I don’t believe they would have the right to break it until AFTER they win a case deeming it to be illegal or unenforceable.
I would agree with you here if you in fact owned the software but all you own is the license, and therefore you are bound by the terms of that license agreement whether you like those terms or not. If you don’t like them you have the option of returning the software for a refund. If you went and hired a car then took it to the local drag strip and thrashed it to death you would be in breach of the contract you agreed to when you hired the vehicle whether you like the contract or not. Why should it be any different with a software license?
If what you say here is true then no private contract related to any industry anywhere has any validity or is enforceable in any way. I cannot see how this can be. There are thousands if not millions of private contracts created and signed (read agreed to) every day in every facet of life – in fact our whole economy revolves around them – yet you are claiming they are all irrelevant? Taking the above example of hiring the vehicle it would mean their terms of use are completely irrelevant – I could use it for whatever I deem fit. This is very scary if it is true…
There is no need to jump to strange conclusions.
First of all, please respond to each post directly — I almost missed your comment, and I don’t have to double-quote if you respond directly.
The concept of a contract is very simple. A contract between different parties is binding only to the parties involved in the contract.
For example, if you rent a car and your agreed-to rental contract dictates that you cannot travel more than 150 miles, then you are bound by that contract not to travel more than 150 miles. If you violate that provision in your rental contract, then you might have to pay a mileage penalty, or, if such a contingency is not covered in the rental contract, you could get sued in civil court.
However, traveling more than 150 miles in violation of your contract is perfectly legal, and you won’t get a ticket nor arrested. In addition, I could rent the same car as you drive it more than 150 miles without penalty, as I am not bound by provisions in your contract.
Likewise, the concept of a law is very simple. If you break a law, you can get arrested or fined by the government.
Let’s say that you are in your rental car and run a stop-sign. In this scenario, you are violating a law, which is illegal, and you could get a ticket/arrested. However, you will probably not find any stipulations in your rental contract specifically regarding running a stop sign, because such a situation is already covered by traffic law. The law dictates that all vehicles must stop at the stop sign.
On the otherhand, there is no law that prohibits anyone from driving rental cars more than 150miles (in violation of your contract) — you would not be breaking a law, and, thus, you wouldn’t get a ticket/arrested (but you might be charged a mileage penalty).
The private contract is binding between the parties involved, but the contract doesn’t determine what is legal or illegal for the parties involved nor for the parties not involved.
Got it?
, that would mean that:
– you can install any software on as many computers as you want as soon as you buy it
Would seem to me that that violates something completely different.
It’s strange – first people say that the validity of the entire EULA is in question i. e. it’s not an enforceable contract and then they go and say that only specific clauses are being targeted. I’m sorry, but on what basis can you target the specific terms? Either you agree with all of the contract for the software you have purchased and use it or you don’t agree with it (break it) and still use it. You can’t really tell the company that their terms are wrong, because the product as an IP doesn’t belong to you, so you either accept that or choose another company’s product.
The issue is not whether the user agrees with certain clauses and not others. I agree, either you agree to all of the eula or you don’t use the software.
However, the court can invalidate clauses that are found to be illegal, and thus can strike those clauses from any contract, including a software eula. It has nothing to do with the user being able to agree to specific clauses and not others. If they are voided by a court of law, whether the user agreed or not is irrelevant.
Well, Yes and no.
You CAN add any peripheral you like, selfmade or not.
you CAN’T just build a system from off-shelf PC components or self-made parts and install the Apple OS on THAT. Even though it works (which has been proven by other people), you’re simply not allowed to do it.
And why? Because the very same hardware with an EFI on top costs you at least 30% more when bought from Apple.
But what is a peripheral and what is a system component? Anything you have to open the case for? I beg to differ, imho a sound card is a peripheral.
Not allowed? By who, Apple? Apple doesn’t have the right to control Psystar’s actions just because Psystar is using Apple’s software. As long as Psystar obeys copyright law, patent law, and trademark law.
Existing law says you absolutely CAN modify software to make it run on hardware that it wasn’t originally designed for.
That’s not relevant to the laws in question.
Edited 2009-01-14 16:33 UTC
The irony of this entire dispute, Apple openly advertises the fact that other operating systems will run on their brand of computers… and they provide software to make the process easier.
Isn’t that exactly what Psystar is doing???
Yes I thought that’s a funny thing: You can buy Apple hardware, put every software you want on it (Yellow Dog by Terra Soft Solutions anyone?) but you can’t buy Apple software and put it on something else. Still legality doesn’t necessary need to make sense.
Edited 2009-01-14 17:09 UTC
In fact, authorized Apple dealers sell Mac computers with non-Apple operating systems pre-installed.
http://www.macmall.com/
Personally I would welcome a law that would explicitly allow consumers to do the following, no matter what the EULA says:
1. Re-sell the physical installation media for any software that they’ve purchased as long as the original software is uninstalled.
2. Re-sell copies of the installation files if no media was purchased (digital download) – as long as the original software is uninstalled.
3. Install purchased software on any device or software environment capable of running the software.
4. Allow third parties to buy and re-sell software from first purchases.
And the makers of the software could do only the following:
1. Include DRM or other mechanisms that limit only the NUMBER of installations of a particular instance of the software.
2. Any DRM or installation control mechanism must allow the software to be transferred to another user, or moved to another machine or environment capable of running the software.
3. The software creator can limit support to the initial purchaser, and to only those supported and or certified execution environments.
That would be ideal for the end-user of course. But from a software company’s perspective, how could this (for example) be enforced?
Just wondering…
It’s mostly a legal requirement for when/if the software manufacturer ever chooses to sue. If the user sells the software but keeps the initial installation, they would not be protected from a copyright claim.
More likely though, whatever validation scheme the software manufacturer employs would not allow two installations that use the same product key.
“Personally I would welcome a law that would explicitly allow consumers to do the following, no matter what the EULA says:
1. Re-sell the physical installation media for any software that they’ve purchased as long as the original software is uninstalled.”
This is already legal and allowed. You have always been able to sell your media as a consumer, provided you remove the program from your hard drive.
“2. Re-sell copies of the installation files if no media was purchased (digital download) – as long as the original software is uninstalled.”
Some places do allow transfer of license, which is what you are paying for, a license to use the software.
“3. Install purchased software on any device or software environment capable of running the software.”
As an end user, or consumer, you can already do this anyway. You just will not get support if installing software on unsupported hardware. Relating to this case, Psystar is not a consumer, they are a business. That is the difference in what they did/are doing.
“4. Allow third parties to buy and re-sell software from first purchases.”
Not sure what you mean by this one
“Relating to this case, Psystar is not a consumer, they are a business. That is the difference in what they did/are doing. ”
The law doesn’t really see businesses or individuals as distinct. A company buying Microsoft Word has the same rights and responsibilities as an individual buying Microsoft Word.
…if they were reselling the licenses they legally purchased without breaking the terms of said license in the process. As it stands they’re claiming right of resale on something that was never theirs in the first place.
EULA is a contract. Basic idea of a contract from wikipedia (I’m too lazy for a real source)
A contract is an exchange of promises between two or more parties to do, or refrain from doing, an act which is enforceable in a court of law. It is where an unqualified offer meets a qualified acceptance and the parties reach Consensus ad Idem. The parties must have the necessary capacity to contract and the contract must not be either trifling, indeterminate, impossible or illegal.
if the Non-Apple hardware bit of the EULA is found to be illegal, impossible or whatever, then we have a Breach of Contract (wiki link)
http://en.wikipedia.org/wiki/Breach_of_contract
The judge will probably award damages, either by slamming Psystar (they’ll disappear) or by forcing Apple to pay Psystar’s legal fees or something, and removing/voiding the non-apple hardware part of the contract.
that said IANAL
No. An invalid provision in a contract is not a breach of contract.
Here is the breach of contract definition to which you linked:
Breach of contract is a legal concept in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance.
If a clause in an agreement is found to be illegal, such a finding has nothing to do with a case of one party of the contract not honoring the contract.
Two things I’d like to know more about:
If a contract contains a clause invalidated by existing laws, only that clause is voided, not the entire contract. Correct or not?
Second, a EULA does not have the same validity as a signed contract. The first sentence in Bounty’s post (“EULA is a contract.”) is not a court-tested fact.
I think that click through contracts have actually been tested, I don’t have a case number or anything though.
That is usually correct. In fact, most contracts include clauses that address such a contingency. Here is a such a clause taken from a standard NDA:
A holding or understanding that any provision of this Agreement is invalid or illegal as applied to any particular condition or circumstance shall not affect or impair the validity or legality of any remaining provisions or of that particular provision as applied to different conditions or circumstances.
However, in some cases a court will invalidate an entire EULA, if they find too many illegal clauses in the contract, as was the case with this September decision:
http://arstechnica.com/news.ars/post/20080901-washington-court-deal…
Please note that, even though the court invalidated this entire EULA, other EULAs and private contracts were not affected by this ruling.
Of course. Signed contracts are more binding than unsigned, manufacturer declarations.
This is described under “breach of contract” on Wiki.
“[edit] Minor breaches
A minor breach, a partial breach or an immaterial breach, occurs when the non-breaching party is unentitled to an order for performance of its obligations, but only to collect the actual amount of their damages. For example, suppose a homeowner hires a contractor to install new plumbing and insists that the pipes, which will ultimately be sealed behind the walls, be red. The contractor instead uses blue pipes that function just as well. Although the contractor breached the literal terms of the contract, the homeowner can only recover the amount of his damages. Since no damages were inflicted, the homeowner receives nothing. (See Jacob & Youngs v. Kent, on which this example is based.)”
Maybe that’s not the best way to look at it.. but red pipe, blue pipe.. apple logo… no apple logo.
Edit: I probably should have worded that first post differently… like I said.. IANAL
Edited 2009-01-14 18:57 UTC
Not sure what is your point.
The contractor breached the contract by using blue pipes instead of the specified red pipes.
Apparently, the clause specifying red pipes was found to be irrelevant.
However, a contract breach and an irrelevant clause are two very different (often independent) things.
A contract breach can occur on a completely valid agreement. Likewise, a clause can be found to be invalid/irrelevant without any breach of the clause.
I don’t know if your analogy with the Apple logo is accurate or if it even applies to the Psystar-Apple case. I think the trademark aspect of the case was abandoned long ago.
in case you want to read some more wierd-stupid legal stuff.
The Drew Verdict Makes Us All Hackers
http://www.securityfocus.com/columnists/489
“For example, the Google TOS expressly says that you have to have the capacity to contract before you can use the service: Thus, a 16-year-old boy who does a Google search technically violates the TOS and commits a crime.”
about the tangledness of the situation.
So to install a copy of MacOSX, Psystar must accept the EULA, and there are two considerations:
1. Psystar is not the EU in the EULA
2. Even if they relay the burden of accepting the EULA to the actual user somehow then that user would still have to agree not to use the software on non-Apple hardware.
Basically what Psystar does is lying to its customers about the whole thing. I don’t see a disclaimer that says “legally you’re not allowed to even USE this thing, but if you don’t have a problem with that, then go ahead and by our hackintoshes”
This legitimate potential claim has been obvious since the beginning of this case. Psystar is merely installing the software at the behest of the end user.
No. Fair trade laws dictate that post-sale use of a product is determined by the purchaser, not by the manufacturer. A perfectly legitimate, fair and ethical rule.
For the 20-zillionth time, a provision in a private contract or private EULA doesn’t determine what is legal and what is illegal — only government laws can do that.
So, one can legally use OSX on any piece of hardware, regardless of what Apple declares in their EULA.
Thus, Psystar isn’t lying, as you suggested.
Now, i’ve found the interesting bits in the OSX EULA.
That’s what we’re talking about here. The questions are:
1) Do Apple have the right to limit your use of the purchased software at all? i.e. is the “licensed not sold” paragraph valid for a contract?
2) Do Apple have the right to limit use of the software to THEIR MACHINES? i.e. is the “Apple-labeled only” paragraph valid?
No.1) would still turn EULAs around the world into scrap paper, while No.2) is only bad for Apple but won’t touch the rest of the world..
Of course, they don’t.
Of course, they don’t.
To give you an idea of how declarations made in EULAs are completely irrelevant and often absurd, here is an excerpt from the Itunes EULA from early 2007:
“… You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons.”
First of all, there is no reason to include this clause for those users living in the United States — such users are already bound by US law.
Secondly, those living outside the US are not bound by US law, and are free to use Itunes to design weapons, regardless of US law.
Thirdly, it is unlikely that there is any law in the US that prohibits one from designing weapons. So, if a US Itunes owner wants to use Itunes to design missiles, then that person has every right to do so under fair trade laws.
There is no need to jump to conclusions.
Keep in mind that countless provisions in EULAs and other private contracts have been ruled to be invalid by the courts, but these rulings don’t affect other provisions in the rest of the contract, nor do these rulings affect other private contracts that exclude the invalid provisions.
Furthermore, software licenses that grant extra permissions in addition to those allowed by law (such as the GPL or BSD license) are very worthwhile. In all of these open-source licenses, the clauses which grant extra permissions are valid (they probably could only be ruled invalid if they encouraged the user to do something illegal).
Edited 2009-01-15 08:59 UTC
How can you agree and disagree to the question at the same time?
If i BUY the software, then it’s my PROPERTY. I can do whatever i damn well want to do with it, including but not limited to using it on non-Apple hardware, using it for the construction of nuclear weapons and so on. It would really invalidate the whole point of writing an EULA in the first place!
And to make my point clear again: I can’t believe that any judge would EVER rule towards something like that, so Psystar can’t be trying to get one to do so. Right?
Please explain explicitly how I am agreeing and disagreeing.
Again, most EULA’s (that only prohibit) are meaningless, but the few licenses that grant extra permissions are important and valuable.
That is mostly true with the exception that you cannot violate copyright law — you own the copy, but not the copyright.
Again, this assertion is correct with most EULAs — the ones that only prohibit. However, there is great validity to the few licenses that grant extra permissions beyond those rights allowed by copyright.
Our beliefs have nothing to do with a judge’s view of the facts of this case nor with what Psystar is attempting.
It appears that the law is plainly on Psystar’s side. Of course, such a condition doesn’t preclude the possibility that Apple’s lawyers could pull off some absurd travesty of law/justice.
Oh. How… convenient. So everything in an EULA that limits your rights is meaningless, while everything that grants you rights is valid?
No it isn’t. And it’s also not what i was trying to say. What i DID mean is that: if software is sold but not licensed, EULAs are meaningless. BUT if software is licensed and not sold, then EULAs are very well binding contracts. Of course single clauses can be ruled out by a judge if they are deemed too restricting or plain illegal, but that won’t touch the validity of the rest of the license.
Again: NO. The law is NOT clearly on the side of Psystar. It all comes down to the whole “is software sold or licensed” debate.
Why is it that Mac fanboys have such a short memory?
As I explained to you before ( http://osnews.com/thread?343538 ), most purely restrictive software EULAs are worthless because they can’t validly include restrictions beyond those already covered by copyright law. The fair trade laws prevent a manufacturer from dictating post sale use almost all products, including software. These fair trade rules are ethical and legitimate, and they are legally binding.
But the valuable permissions granted by open source licenses are not governed by copyright law, and, since these permissions do not restrict post sale use of the software, fair trade law doesn’t even apply to these extra permisions.
By the way, you never explained specifically your claim that I was agreeing and disagreeing simultaneously.
Of course, it is, and there is plenty of legal precedent to support the the fair and basic principle that a purchaser can do whatever he/she wants to with the purchased product (software), as long as one doesn’t break any laws (copyright law).
Do you deny the legal precedents that have been refernced in this forum and in others?
Regardless of whether or not a software manufacturer (or one of its fanboys) declares that their product is licensed or sold, such declarations do not supercede basic trade laws.
However, I am fairly sure that law/precedent dictates that, when one buys a copy of software, one legally owns that copy, regardless of what the manufacturer claims. So, if I buy OSX, I own that copy, and I can do whatever I want to with it, as long as I don’t violate copyright law.
If I remember correctly, Apple does not sell OS X, but only upgrades. They sell Macs, and sell upgrades to the OS that comes with the Macs. Seeing as they don’t license OS X to anyone, it might be a tall order for Psystar to win this one.
They will probably settle very quickly.
The OSX retail versions being sold at retail stores may be labeled as “upgrades,” but in reality they are complete stand-alone operating systems.
No one would pay $110 for a boxed set of patches and upgrades…
http://www.amazon.com/Mac-OS-Version-10-5-4-Leopard/dp/B000FK88JK/r…
It’s not even advertised or labeled as an “Upgrade”.
1. I’m not a Mac fanboy. I don’t own a Mac, and i never have.
2. If the case were so clear as you state, why are we even seeing something like Apple vs. Psystar?
3. From the POV of software vendors, including but not limited to Apple, software IS NOT (i repeat: is not) sold. It’s licensed. And since the customer didn’t buy it, fair use doesn’t apply. The license applies instead.
I’m not saying that this POV is correct. In fact, i never have and i apologize if i gave you that impression. But you and i have neither the competence nor the authority to to say it is or is not. That is to be ruled by a judge.