Apple has responded to Psystar’s new lawsuit today, stating that it is nothing but a stall tactic on Psystar’s end. While I could just paraphrase whatever the filing reads, I decided to take this opportunity to address a number of sentiments and analogies often made in comment threads (not necessarily on OSAlert).
I’m not sure if what they are doing is legal or moral.
But I do know that its in their best interests to keep the trial going as long as possible ( assuming their legal costs are covered by the profit margins of their products and services). If they lose, they can’t continue their current business model. If they win, Dell and every other big computer maker will jump on the bandwagon killing their margins.
“If they win, Dell and every other big computer maker will jump on the bandwagon killing their margins.”
Ain’t that good for competition ? About the margin moto, I bet that if Psystar can produce and sell lower amount of higher end computers with full priced legit copies of Mac OS X, all of this for a fraction of the price asked for the original computers issued from a large company like Apple, that “margin” is just astonishing, to say the least.
Of course Apple cannot cope to suffer its “margin” level being known (that’s why they dropped some lawsuit points on Psystar) and they surely don’t want their monopoly being brusted ! On a more sardonic note : if Apple computers “costs an eye or an arm”, Psystar’s costed Jobs a liver…
Kochise
Monopoly??? What monopoly?
Monopoly of Apple-labeled computers ! Where were you the last time we had a discution about this ?
Kochise
there’s no monopoly
if apple went bust there would be no mac os x
Are you forgetting the rumor that they are funded by some 3rd party possibly Dell?
Yes. Yes, I am. Forgot about that.
Apple will raise the price of OSX sky high, and introduce some proprietary hook to Apple hardware. It is still their software after all.
and they get sued again and again and again until apple gives up and terminates the os and starts to sell windows pcs
That would never happen.
What far too many people are forgetting is that Apple will NOT be on the hook for supporting any other configuration.
Apple has the full right to deny support.
That said, most OEMs will not even consider MacOS… or any OS without some vendor support.
Not even Linux has such a luxury, it requires a unified support structure to convince any sizable OEM to even consider using something as complex and vital as an operating system. Even Microsoft has to jump some hurdles to get the next version of Windows to be the standard choice – namely they ‘outlaw’ the old version ( which is to say they will charge the full $109 OEM price, instead of the $40-70 contracted-OEM price [ varies, and is based on spare first-hand knowledge and other circumstantial evidence ] ).
So, no worries about Apple suffering if the world were to start using MacOS – that would just mean some company decided to offer 3rd part support for MacOS X, or the OEMs decided it was easy enough for them to handle.
Trust me, Apple wants their OS to sell like mad.. they can come up with many schemes that could make them big bucks with little extra cost – BUT – I am dead certain that a limited/no competition agreement exists between Microsoft and Apple. This means Apple MUST fight as hard as possible to prevent OEMs from using MacOS X in any support-by-Apple fashion.
Trick is when Apple loses… then they REALLY win BIG. The method needed to fight is to begin marking MacOS versions as upgrades, and reducing the price. Problem is that customers can only do upgrades across certain versions – and many will only want to upgrade every few iterations… or less… customer demand will force Apple to release ( sooner or later ) a full retail version, at a higher cost ( or else the ‘upgrade’ version holds no merit in the court system ).
You see, in U.S. law, it has been accepted that an upgrade version of a software program holds special rights due to special vendor pricing. Meaning you are saving money predicated on the fact that you are a repeat customer. This is a qualification for savings. The real hurdle in law can then begin:
If Apple ONLY offers upgrades, by law, they are not offering upgrades. There MUST be a version from which to upgrade. That version CAN be bundled with hardware or it can be sold at retail – doesn’t matter, so long as such a version exists and the upgrade is cheaper ( or a better value, more accurately ).
So if Apple releases a version of MacOS X at the normal price, includes nothing extra, but simply calls it an upgrade to prevent others from using it in an otherwise legal manner, then Apple is violating anti-trust and even marketing laws. Apple MUST provide additional value versus the ‘full’ version.
That value can, naturally, be something as simple as the ability to upgrade without data loss – if the full version does not support such.
That is the Psystar’s newest lawsuit against Apple – the latest MacOS X is “upgrade-only”, with no added value.
Apple could certainly release a slightly better valued product as an upgrade, but they will need to be able to show the savings versus a full version ( not hard ). But then they have their customers wanting to be able to skip upgrades for, perhaps, years. Apple will need to release a full version product at retail at some point. And who would want to have to sign a special contract just to use MacOS X?
–The loon
There are in fact Samsung phones running Nokia’s S60 platform. This is, of course official and supported by Nokia. (An example is Samsung SGH-i550.) Apple should really learn from Nokia.
It’s kinda ironic, though, that it’s their own example.
There are in fact Samsung phones running Nokia’s S60 platform. This is, of course official and supported by Nokia. (An example is Samsung SGH-i550.) Apple should really learn from Nokia.
Now…why would Apple want to support another computer manufacturer running their OS, thereby taking away sales of their own hardware? They don’t make enough money or have enough margins on OS X to make that even remotely feasible…THAT’S WHY THEY KILLED THE CLONES!!!
People..APPLE IS A HARDWARE COMPANY, NOT A SOFTWARE COMPANY. They are not in the business of helping Dell, Lenovo, HP or whomever sell hardware. If Psystar actually won (which is an imposibility, as far as I’m concerned) it would kill Apple’s computer business.
I’m hoping that reason comes back into all this and Psystar loses and goes away!
Edited 2009-09-02 20:18 UTC
not it wouldn’t kill apple’s hardware bussiness.. it would merely force them to compete just like everybody else
not it wouldn’t kill apple’s hardware bussiness.. it would merely force them to compete just like everybody else
You mean compete with their own software on someone else’s hardware which takes away from their hardware sales? Why should they compete? Is OS X in a monopolistic position with 7% market penetration?
Are you kidding?
Edited 2009-09-02 20:35 UTC
Apple creates a proprietary operating system for computers it manufactures. Why, exactly, is it under any obligation to compete against other manufacturers who want to sell their own systems running Apple’s operating system?
Edited 2009-09-02 20:36 UTC
Uh… because Apple sells shrinkwrapped OSX in places where I can buy software? They’d happily sell me a copy even though I don’t own a Mac.
If they stopped selling boxed copies to people who didn’t buy a Mac to begin with this whole case would go away.
What are Apple supposed to do, send a PI to your home to see if you actually own a Mac? Require a DNA sample when you buy a Mac, sot hey can match it later on when you want to upgrade your software?
Apple are in no way trying to hide that fact that the license they are selling you comes with certain terms. At any point before you install the software you can request those terms and at any point before you install the software you have the right to return it for a full refund.
Until Apple or any of their resellers refuse to do either of the above you have nothing to complain about. And at the point at which they do refuse you have the law on your side.
But in this case it;s neither. You are intentionally playing dumb. And although it may work, to a certain degree in flame wars on interwebz forums, it does not work in front of the law.
Apple is assuming that you do have a Mac because what else would you do with the software. When you have your way, I will have to prove to Apple that I own a Mac and then when I install the software I will HAVE to register it and be connected to the internet and all the things that I do not have to do now. I bought a Mac and love how easy it is to install the OS, but when you have your way I will hate it like I do when I install Windows. Thank you for ruining a good thing.
Uh… because Apple sells shrinkwrapped OSX in places where I can buy software? They’d happily sell me a copy even though I don’t own a Mac.
If they stopped selling boxed copies to people who didn’t buy a Mac to begin with this whole case would go away.
>
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The assumption here is that person buying Shrinkwrapped OSX *OWNS* a Mac, otherwise they wouldn’t be buying it.
Buying and then reselling coppies of OSX with the advanced knowlege that that aren’t going to be used on a Mac is literally criminal *FRAUD* guy.
So you can provide case law where resale of software without copyright infringement was found criminal then yes?
They didn’t actually kill the clones, they simply stopped licensing the proprietary firmware that enabled otherwise commodity hardware to run Mac OS at the time.
This was not something that manufacturers could buy off the shelf, nor could they easily re-create it, so this effectively killed off the clones.
I just want to clarify this as it’s a very different situation from what is happening here.
They didn’t actually kill the clones, they simply stopped licensing the proprietary firmware that enabled otherwise commodity hardware to run Mac OS at the time.
This was not something that manufacturers could buy off the shelf, nor could they easily re-create it, so this effectively killed off the clones.
LOL. So…Apple didn’t kill the clones…they denied them the proprietary technology that would allow clone makers to run on their boxes…EFFECTIVELY KILLING THE CLONES??
ROFL.
Exactly… kinda like winning a battle by cutting off the supply lines is not the same as killing everyone.
You laugh as if you somehow think you’re being smart there…
Exactly… kinda like winning a battle by cutting off the supply lines is not the same as killing everyone.
You laugh as if you somehow think you’re being smart there…
Well…if the net effect off cutting of the supply lines is that everyone eventually whithers and dies, they have been effectively killed.
And..I’m laughing at you.
Edited 2009-09-02 21:29 UTC
Laugh all you want, my point stands – this is a different situation. Apple can’t just tell Psystar to go away, because Psystar is not a licensee like the clones you are referring to.
Laugh all you want, my point stands – this is a different situation. Apple can’t just tell Psystar to go away, because Psystar is not a licensee like the clones you are referring to.
You’re right…Psystar is NOT a licensee…AND THAT’S WHY THEY ARE IN COURT!!!!
They are in court because Apple realized, after the clone-maker experiment, that their hardware sales would suffer immensely if they continued to license the OS to them (the cloners). So, Apple (correctly) doesn’t want their OS to be mass distributed on other hardware, thereby killing their business and they have every right to protect that position.
Edited 2009-09-02 21:45 UTC
They don’t have to be a licensee, because Apple has been nice enough to offer OS X for retail sale this time around
It really doesn’t matter what they want, when their (poor?) choices have pretty much allowed it to happen. If they didn’t want to sell their software separate from their hardware, why did they?
If Psystar miraculously causes Apple to go down (I seriously doubt they will), it will have been completely Apples fault this time, just like last time.
It really doesn’t matter what they want, when their (poor?) choices have pretty much allowed it to happen. If they didn’t want to sell their software separate from their hardware, why did they?
ROFL.
Okay…you’re a wind-up.
Uncontrollable laughter is a common sign of mental retardation.
The difference is that the original clone companies were operating a law abiding business; Pystar is not.
First of all, thankfully, they still haven’t killed off the clones.
Secondly, is Nokia really threatened by these Samsung phones running S60? I think not, because people prefer Nokia’s hardware. They compete with quality. They don’t force you to buy hardware just because you want the software.
If Apple allowed licensing options for OS X to OEMs, it would benefit from the software sales, AND make the market more fair and competitive. As a result, we would see cheaper AND even better Apple hardware.
And finally:
Spoken like a true fanboy.
Edited 2009-09-02 23:06 UTC
Compaq won. In the 80s IBM tried the same crap with the PC market. So Compaq reverse engineered the BIOS and IBM sued. Compaq won and 25 years later we have the huge PC ecosystem.
Psystar could be Apple’s Compaq. Except in Apple’s case, they don’t have a large mainframe business as well as a services business to keep the company afloat.
Which would be a sad state of affairs given that during Apple’s recovery at the turn-of-the-century, Microsoft was quite stagnant when it came to innovation. I’d hate to see that happen again for I certainly don’t see much innovation coming from clone-manufacturers or the Linux ecosystem.
Doesn’t really matter. I don’t really see that much innovation coming from Apple either. They use the same parts as the rest of the PC industry, and just put them in a pretty case. When it comes to computers, OS X is really the only thing that makes them different then Dell.
What does matter is that a precedent for what pystar is doing has already been set, and if a court finds that this is true, it’s probably all over for apple as a computer hardware company.
and ibm doesn’t sell or make pcs anymore
Actually…..
Apple would just raise the cost of individual boxed copies of OS X to $350 or $400. It would allow them to continue to sell the Apple hardware at a competitive price by reflecting the true value of the software (which is currently subsidized by high margin hardware sales).
C’mon, we’ve been through this already. Saying it over and over doesn’t make it less false.
Apple makes a HUGE profit on software sales. Software sales are not subsidized by hardware profits.
A refresher, if you missed it last time:
The entire Apple R&D budget for the three month period was ‘only’ $319,000,000. Software sales alone earned $625,000,000.
Edited 2009-09-03 18:53 UTC
Apple could simply ignore the polluted waters and continue to sail the ship, but it’s nicer to do so without everyone commenting on the sh*t sticking to the hull (never mind the smell).
Apple could turn a blind eye to others selling Mac OS X for regular PC’s. However… the many incompatibilities and bugs introduced by mismatched drivers and obscure hardware would reflect negatively on the relatively “it just works” experience that the Mac OS currently enjoys.
On the other hand… Apple itself could easily start selling Mac OS X for regular PC’s instantly making itself the largest OS vendor in the world, outperforming Microsoft but making itself the most loathed also for selling out and just for being number 1. Ask Bill.
But it is within Nokia’s rights to pull their software business back in to just their own hardware. They have not done so because it is not within the interests of their business.
Sorry Thom but your “debunking” is complete rubbish. It’s Apple’s hardware and Apple’s software. They can sell, license, or distribute it however they see fit. End of story. Period. The only caveat being the portions that are covered under bsd. Anyone can download the bsd code and run it on any machine they want and Apple has a direct DL link to allow just that.
Just because it’s non-trivial to build a machine 99% the same as Apple’s and get OS X running does not mean it’s legal or ethical do do so.
For Pystar to suggest that Apple is doing something illegal by tying their software to their own hardware is laughable.
I sell Apple’s mountain spring water and Apple glasses. Drinking Apple’s mountain spring water from anything than Apple glasses is strictly forbidden !
Who said rubbish ?
Kochise
The problem is that Apple doesn’t sell the “water”, they _license_ it. When you buy software what you are actually doing is entering into a contract with the maker of the software. I’m not saying I like it, but that is the way it works (or at least that is the way the software company’s want it to work, and the legality of it has not be directly challenged yet). Until people simply stop buying software which is licensed as opposed to sold then this will probably never change.
The point is that since Apple is simply licensing the use of their product – they absolutely CAN tell you what you can and cannot do with it (up to a point – there are limits and they vary by state law). The crux of the matter is you do not own the software itself.
It is hard to imagine licensing water, but to use your analogy Apple doesn’t sell water at all. They put the water in a box with a license agreement on it that says by purchasing the product and opening it you are allowed to drink the water contained inside, but only if do so using an Apple Glass. If you agree to this license then you are obligated by law to comply with it. Its that simple. Like it or not it is all nice and legal (so far).
A number of courts have agreed that whether or not a software company calls it a license and not a sale is completely irrelevant. The manner of the sale is what is important, and buying software is just like buying a cheeseburger, no matter what Apple has to say about it.
A number of courts have agreed that whether or not a software company calls it a license and not a sale is completely irrelevant. The manner of the sale is what is important, and buying software is just like buying a cheeseburger, no matter what Apple has to say about it.
Can you cite precedent of this?
In the Softman v Adobe decision, the judge sites the following cases:
Advent Sys v. Unisys Corp (3rd circuit, 1991)
Downriver Internet v. Harris Corp (6th Cir. 1991)
Microsoft v. DAK Indus. (9th Cir. 1995)
United States v. Wise (9th cir. 1977)
RRX Indus., Inc v. Lab-Con, Inc (9th Cir. 1985)
Applied Info. Mgmt., Inc. v. Icart (E.D.N.Y. 1997)
Novell v. CPU Distrib., Inc. (S.D. Tex. 2000)
Not being a lawyer or having PACER access, I can’t look each up and say what exactly the decisions were or were based on, but the Softman judgment is easy to understand. From it:
Later in the same section:
I acknowledge that here are cases where a Judge has ruled that EULAs are enforceable, but without PACER access I can’t view them on my own. There seems to precedent going both ways, but based on the history of EULAs provided in the case, and Judge Pregerson’s views on the matter in this case, it seems obvious to me that EULAs should not be enforceable unless they are presented and agreed upon prior to purchase.
Legalese is often times confusing to laymen, and I say this as one of those laymen.
The above should be read – it constitutes sale of a license not lease of a license.
A simple example of the latter can be franchise rights for, say, Mcdonalds for Holland. They are given to you specifically and you cannot resell them.
On the other hand, the decision you quoted says that software licenses are not issued for a specific term or specific party – therefore they, the licenses, are a resellable good in their own right.
That case is important, but it doesn’t invalidate EULAs. It doesn’t even do what you suggest at the end of your post:
What that case establishes, in laymen’s terms, is that a product with an EULA is an item that can be bought and sold, and that the first sales doctrine applies to it. It doesn’t affirm (or reject) the practice of using EULAs.
In legal terms selling software is a sale, regardless of there being an EULA attached, and the EULA cannot be used to countermand the rights of the buyer under first sales doctrine. Meaning if obtain a legal copy of a copyrighted work, you can resell it – as long as no other copies are made.
In realworld, practical terms it simply isn’t a sale, because it is revokable under contract law. If the contract has a stipulation in that that says you cannot do some particular thing, and that stipulation does not violate any other law, then it is legally binding and enforcable. This has been upheld in court numerous times. It is a glaring contridiction in the law, but non-the-less that is how it is.
The issue is that there has (as of yet) been no successful challenge to this – there is no court case that rejects the legality of the revocable license. There have been successful cases rejecting certain licensing terms, and some questioning the method of agreement, but nothing that can be construed as successfully challenging the practice itself.
Frankly I wish there was, but it is completely legal under current law.
AFAIK, one court has stated that how you purchase software can affect the licensing. However, every court that has heard a case has agreed that EULAs are valid for over the counter sales of software. Only in the case of bulk licensing and special negotiated deals have EULAs been questioned and that is because there is a specific contract between the parties that supersedes the EULA, not that EULAs themselves are in any way effected.
Seriously, EULAs are valid. Go read the Groklaw article about it. It has all the precedent you need.
Go ahead, show me the case. I triple-dog-dare you. It doesn’t exist. Sure there are cases where certain clauses in the license have been specifically called into question and defeated in court, but not the practice of licensing.
Yes, it is legally still considered a “sale”, but it may as well not be because it is by being tied to a contract revocable by the seller – something this is generally not an attribute of a “normal” sale. The point is that the revocable part has never been successfully challenged, only the conditions have been.
Here is one:
http://arstechnica.com/tech-policy/news/2008/05/court-smacks-autode…
That case says nothing about the legality or enforceability of EULAs. It reiterates the fact that licenses, as well as any other contract, cannot contradict the law. And since there is yet to be a law forbidding one from making software for a certain type or brand of hardware, it is irrelevant to the Psystar vs Apple case.
That ruling, in a nutshell, decided that first sale doctrine trumped EULAs – particularly since the defendant never read nor agreed to the EULA. But as I said, it does NOT challenge whether EULA’s are legal – it doesn’t even address the issue.
You are right to think of a pice of software as an object, but keep in mind that it is an immaterial one. Unlike a cheeseburger, you can make a million 100% identical copies of it at nearly zero cost. That’s why all intangible goods, like software, inhabit the space between actual goods and services. That is why you buy a license to use a copy of the software and not the or a copy of it, as you seem to believe.
Have you ever been to McDonalds? They make a million cheeseburgers and nearly 0 cost. Ick.
Ha ha, that’s hilarious, you are a riot.
Attempts at deflecting the point aside, if I give you money for one cheeseburger, can you run out to Mcdonalds, get one, and then come back and give one cheeseburger to each and every member of the OSAlert forums?
MDY v Blizzard. Yes, the legality has been challenged (repeatedly, in multiple circuits). Yes, EULAs have been held valid (repeatedly, in multiple circuits).
http://www.groklaw.net/article.php?story=2009081716312060
Read that article. Then read it again. Then stop posting that EULAs haven’t been challenged and/or may not be valid.
Im sorry but you are _completely_ missing the point. There is LOTS of case law challenging the terms of EULSs, and a few challenging the manner in which they must be agreed to. But there has NEVER been a case that directly challenged the practice of hijacking contract law to get an upper hand on the terms of a sale in the specific manner that is used for EULAs.
I am not saying, nor am I implying in any way, that EULAs are illegal – in fact quite the opposite, there is case law specifically supporting them all over the place (ProCD vs Zeidenberg Appeal). All I’m saying is it is unfair to consumers and gives the seller far too much power over the terms of sale in my opinion. And yes, it is the buyers problem for agreeing to it – but since pretty much all commercial software is sold this way its kind of hard to avoid.
I have posted 3 times in this thread arguing with people who claim the practice is illegal. That doesn’t mean I like it.
I’m not missing the point, you specifically said “(or at least that is the way the software company’s want it to work, and the legality of it has not be directly challenged yet)” which is false, read MDY v Blizzard. So, although I respect your opinion, the text which I responded to is incorrect and your opinion is not upheld by binding ninth circuit case law.
However, you did say that EULAs are legally valid and I apologize for saying otherwise. I confused your message with another while responding.
And I would recommend anyone to read MDY v Blizzard who is interested in Psystar because it is a binding ninth circuit case (which is where Apple v Psystar is being argued) and it is almost completely on point.
Edited 2009-09-02 21:39 UTC
Replace directly with successfully, which is what I meant in the first place. I now see I worded that completely wrong. Sorry about that.
That’s probably the worst part of an EULA: In most cases you can’t agree or disagree with it until you’ve opened the box, put the disc in and started the installation. Let’s say you don’t agree with the EULA and you don’t want it anymore. Now that you’ve opened it, try to get the retailer to let you do a return. Chances are the best you’ll do is get a store credit, because nearly every retailer out there assumes you copied the software and are trying to scam them. Either way, the software maker already got their money from the retailer when he ordered a pallet of retail discs.
If it’s a really difficult retailer and they will only let you exchange for the same title, you’ve just “licensed” software you will never be able to use. Sure, you could sell it on eBay…but wait! That means it’s now treated like a physical purchase instead of a license. You don’t have the authority to license it to the eBayer that buys it from you, so what kind of transaction is it now? Most EULAs provide for the end user to “transfer” the license one time. However, you never agreed to the EULA so you aren’t the end user. You are at best a middleman, and you probably lost money on the deal to boot. Once again the EULA hurts someone and helps no one.
This is why I generally abhor EULAs and SLAs. Until software makers start printing the entire EULA verbatim on the box in a human readable font size, I will consider them a joke and irrelevant. I know, the court may see otherwise, but I don’t care. I’ll install Snow Leopard on my generic box if I want to, Apple’s SLA be damned.
Actually Apple sells me a copy of their software. They also don’t show me the license until I’ve opened the installer disk.
Well, it may be strange but it isn’t rubbish. You are comparing one of the most advanced pieces of software ever created with a ubiquitous natural resource. It’s within Apple’s rights to sell licenses of their software and go after companies that break that license just like it’s within Microsoft’s rights to deactivate a copy of Windows if it determines it’s not on the same machine of its original activation.
All software comes with licenses, and they ask you to read the license before you install. If you bought a copy of Mac OSX to install on your PC, and only notice after the purchase that you can’t install it, you can still sell that single user license to someone else (or potentially return it to the store, depending on the vendor). Pystar is trying to take advantage of court delay tactics to make money illegally.
Then they better start asking for an Apple hardware serial number before taking the money I’m handling them for OSX. Once I bought it, I’m gonna use it as I see fit, thank you very much.
Would Apple complain if I go and buy five hundred OSX disks to cover my wall? No. Would Apple complain if I go and buy one million OSX disks to start my new OSX-A-WALL service? No. Because it’d be stupid and, ultimately, I’d be the one wasting money, right?
Then I’ll install the damn thing on my fridge if I so desire. Psystar asking for Apple “to stop tying OSX to Apple hardware” is ridiculuos, though.
Edited 2009-09-02 20:22 UTC
I’m only a spectator in the Apple vs. Psystar soap opera, but to me it boils down to the fact Apple were too liberal with the license of their software. Psystar saw an opportunity to build a PC but with the niche of running Apple’s software given they were newly able to (technologically, but also legally capable). Apple is none too happy with the competition now, and the wolves in lawyers clothes came out.
It’s bad for Apple twofold (probably more):
– this is like when people cloned IBM PC’s, when IBM lost the reigns of the product/market
– People will now want more freedoms within Mac software, so Apple either has to now accommodate for unanticipated changes or someone else will.
Psystar will lose, Apple will lose and the lawyers will get rich.
It’s not rubbish, those are all very valid points. Did you even apply critical thought to the article, or did you just respond in the most Apple-friendly way?
They are all valid points, but the most important point is the validity of the EULA. Restricting use of a PURCHASED product after sale is against the Uniform Commercial Code. While such restrictions aren’t illegal for something that is truly leased or licensed, software is not exchanged in that manner. They are regular purchases, just like a book, a shirt, or a cheeseburger. Whether or not Apple calls it a lease is irrelevant. The manner of purchase is what is important, and several courts have agreed that buying software is a sale and not a lease or license.
The Softman v. Adobe case is probably the best and most recent example of such thinking. However, I think the judge was incredibly short-sighted in his decision. While he nearly says EULAs are not enforcible due to the type of transaction involved, Softman was distributing software in a way where the EULA was never presented or agreed to, and because of this, he wrote that the decision should not be used to say anything about the legality or validity of EULAs in general.
I think that is a shame. Ruling that EULAs are not valid would have done so much good for both consumers and the computer industry in the US, at least until the lobbyists wrote a new law allowing enforcement.
It’s not rubbish, those are all very valid points. Did you even apply critical thought to the article,
Valid to what end? All the so called points are completely irrelevant to the legal case at hand.
did you just respond in the most Apple-friendly way?
That’s pretty funny. Since I think Pystar is dead wrong I must be an Apple fan-boy right? LOL!! Just for your education, I do not now, or ever have, owned a Mac.
Thom,
[quote]
It is time we start protecting our rights, instead of limiting them just because we like Apple so much.
[/quote]
Is that one of your sledge hammer comment supposed to encourage fine-grained analysis (as in your much polemical, hang-first-justice-after podcast about X) ?
I’m really surprised that the most obvious solution is absent of your article. IMHO, and in Apple’s own admission, it’s easier to build good software on your own, controlled hardware.
Apple is about reputation. You like it, you don’t, it’s your own issue. But its the very own right of the company to take the 5th and not incriminate itself by releasing an OS to the wild of the geeks out there, ready to install it on any kind of hardware available, consequently increasing the risk of discovering uncomfortable flaws in the system.
With their secret-, limited-diffusion-based policy, Apple wins on every sides: reputation, marketing, quality control, support, innovation. Why would they change it ?
Finally, about Psystar, it’s facilitation (and maybe accomplice after the fact). Saying that Psystar is not guilty of anything is as correct as saying that gun manufacturers are not partly responsible of the gun-based crimes in America. Except that owning an OS is not covered by the first
My take: if you want OSX, buy a mac (generally speaking, I know you own and use one
).
Thom is a classical Dvorak (no, not the keyboard guy – the talking head one). He would take any chance to stir a flame war and get a bazillion clicks, links, in general ad views.
I love it, Thom debunks myths through the careful use of fantasy like this:
“However, recently, someone pointed out something very interesting to me. We all know what “EULA” stands for, right? Let’s just spell it out: End User License Agreement. The important bit? End User License Agreement. So, who is this “end user” you speak of, oh EULA?”
So if Psystar isn’t the end user agreeing to the license, what right do they have to install Apple’s software on their computers? That’s correct, none, which is why people bring up the lack of OEM licenses for OS X all the time.
This is another good one:
“Software makers are not honest and upfront about it. When you go to a store to buy software, software makers do nothing to make it clear to you that you are not buying a copy of the software, but are in fact only paying for the privilege to use it under arbitrary terms dictated by the software maker. Only after the sale is completed, and the transaction of money and goods has taken place, do software makers point it out to you that a) you do not own what you just paid for, and b) the terms under which you are allowed to use it.”
Have you ever actually looked at the box OS X comes in? Because it quite clearly says that the software in question is covered by a license agreement. You know, on the box, which you can feel free to examine before a purchase. So what was your argument again? As a matter of fact, I just got my Snow Leopard Up To Date copy and not only was there a warning that the software was covered by a license, IT SAID SO ON A STICKER ON THE OUTER ENVELOPE! I saw the license warning sticker before I saw who the package was from. This stuff has been litigated repeatedly and in the United States (which is the only jurisdiction that matters since both Psystar and Apple are in the United States) EULA’s are valid and have been upheld by actual real courts repeatedly. Groklaw even has a great post which goes through the binding precedent for the circuit this lawsuit is taking place in.
The Psystar posts on OSAlert are almost comically sad in their utter lack of real facts. Arguing that Psystar is going to win is like arguing that evolution is a myth. Sure there are some deluded people who really, really want the world to fit their preconceived ideas of how it should work who will deny science, but for the reality based portion of the population, denying evolution (or claiming Psystar has any possibility of a real victory resulting in the downfall of EULA’s and the ability to force Apple to license it’s software for you to resell on your own computers) just makes you look like an idiot.
Unless Apple themselves, and every reseller of OS X makes the buyer agree to the license before purchasing, it’s still not a valid contractual agreement. If I order the product off the internet, how can I “examine” the box before purchase?
Bull. If you get the software and decide not to agree with the license, you can get your money back. Neither Apple nor the reseller is obligated to require that you have read the license before the sale, they simply have to physically attached it to the products packaging (it doesn’t even have to be on the outside), and in most states they must produce it on request. There are very specific laws in most states that outline this exact issue and force resellers to issue refunds under the circumstances you describe.
Yes, it is a pain in the *ss. Yes you might have to go trough lots of dunderheads to get your money back. You may even have to sue because the reseller is clueless. But the point is the law is already on your side – this is all well explored legal territory and (unfortunately) does not invalidate the practice of software licensing.
Irrelevant, as soon as it shows up at your door you can examine it. All of Apple’s EULAs are posted on their website giving you the opportunity to review it before even opening the box. And if you go so far as to open the box and start installing the software, every EULA has a clause that allows you to return the software if you don’t agree with the license terms.
And no matter how much you want to bang the “not a valid contractual agreement” drum, it doesn’t matter, in the United States EULAs are valid.
Oh give me a fracking break! If you don’t realize prior to your purchase that the thing you are buying is a license to use a piece of software, a license that may come with certain terms, detailed in a document called “Software License Agreement” and and generically called EULA, it is *your* fracking problem. And if you do realize that and still don’t bother to get to know the terms of the EULA, or you intentionally play dumb, it still is your fracking problem.
If you do a search for Mac OS X license agreement, one of the first results you’ll get would be: http://www.apple.com/legal/sla/ , where you can get the full text of the EULA.
Stop playing dumb, nobody is buying it (I’d wager not even the court). And the issue at hand is not about individuals, like you, intentionally or inadvertently breaking the terms of the EULA. The issue is that a company, which could afford to get legal counseling beforehand, is breaking the EULA en masse.
It is certainly debatable whether Psystar itself is violating Apples’s EULA en mass as you put it. It is also debatable whether specific provisions of the EULA are even enforceable. Before you make predictions as to what a court of law might do it is instructive to read what the courts have actually ruled in similar cases. In particular you should read the Supreme Court ruling in DATA GENERAL CORP. v. DIGIDYNE CORP., 473 U.S. 908 (1985).
Very good point, as prior case law is how courts operate.
From the ruling: “The court concluded that the tying arrangement was illegal per se, because petitioner’s RDOS operating system was sufficiently unique and desirable to an appreciable number of buyers to enable petitioner to force those consumers to buy its tied product, the NOVA central processing unit.”
That would indicate that it would be illegal for Apple to tie OS X to it’s own hardware.
It will be interesting to see what the final ruling is on this, though it may take years with appeals, etc.
As they say in the US System of Laws, “Ignorance of the Law is not a defensible position.”
I gotta agree with you, Mr. Holwerda is taking a view without understanding the facts.
OK, so it’s tough to argue fact when there are lawyers involved, but even the lawyers don’t think Psystar has a chance.
I noticed that Mr. Holwerda cherry picked comments from his Psystar update article, but he ignored that one that referenced Groklaw.
http://www.groklaw.net/article.php?story=2009081716312060
I didn’t read all of the article nor the attached case law, but she doesn’t give Psystar a chance. She cites chapter and verse about EULA’s and DCMA etc. and notes that while it doesn’t seem fair, it is the current law. I love this comment:
If you rely on what you think the law should be instead of what it is, you end up losing in courts of law. Talk to your legislator if you want the law changed. The judge probably isn’t your man.
So Mr. Holwerda, do you have a Mythbuster for Groklaw’s analysis?
I propose to create a new website, all my own, and what is the product? Why, it’s all the great OSAlert articles, but served on my terms for monetizing, say, having users promise to give blood during blood drives! Oh, yeah, I forgot to tell you: other than hinting that it’s all OSAlert-originated content, I won’t bother paying the owners of it anything beyond lip service for their work, since, after all, it’s merely data, it can’t hurt them if I take it, right? I’ll simply strip out all their advertisements with a simple script, so that’s not an issue there. After all, I’m already a subscriber (hypothetically) to all the OSAlert stuff anyways, so why should there be any further consideration? They get my business anyway, so why I can’t I do my own value-added (in my estimation) repackaging and reusing of the OSAlert content? It’s only writing!
Ridiculous analogy…
If OSAlert was selling their packaged articles at retail, I would say you’re free to do whatever you wanted with them once you purchased them (including re-sell them), as long as you didn’t distribute multiple copies of them which would be a copyright violation.
Edited 2009-09-02 20:45 UTC
That would be copyright infringement. Psystar are not engaging in copyright infringement.
Yes, it is flawed in that it would be a direct copyright infringement, in addition to the intended point: someone doing that would be profiting off of the hard (or not so hard) work of the one they’re using their product (which is part of a whole overall product: aren’t the discussion forums also part of OSAlert, and this part wasn’t mentioned at all?) to mostly remove any differentiation between the leecher (Psystar) and the original manufacturer (OSAlert) where end users/customers of the original manufacturers get a much subsidized product that is meant to work as a package deal, and the leecher is taking the lazy way out, and letting the original manufacturer/creator do all the heavy lifting.
However common the underlying circuitry and other discrete components are of Apple’s computers, their entire business model revolves around selling the hardware with the software being the most important differentiator, and they put a lot of time/money/resources into creating that software to be optimized on that hardware, which they also go out of their way to design and manufacture to their level of expectations to maintain their branding. So, in essence: Psystar is riding on Apple’s coattails like a flea, using Apple as the beast of burden with their work, while trying to look like they are something they aren’t: creators of something new that functions like a Mac, using the most important part of what makes a Mac a Mac for experience (other than the look and feel of the hardware) for free, and this causes brand dilution.
If Psystar actually wrote any meaningful software, say, their Mac OS X clone that ran other OS X software, complete with their own Aqua equivalent, and not using code they don’t have an express license they can point to that allows them to use it, then Psystar would be perfectly fine, but that’s not at all what they’re doing. It isn’t right that another company should be allowed to dictate the business model of a company other than their own, even if they don’t like it, by using that other company’s own works against them.
I think many of you people who are on the side of Psystar are forgetting two things.
One is the reason why nearly all software is licensed, and not sold. Back in the day, all you had to do was make a copy of a floppy, and pass it on to a friend. Said friend naturally will not give money to the people who made the software because they already have the software. Software companies realizing that people feel they have a sense of ownership of the physical medium they have payed for, and the laws stating that a person has the right to sell, give away, or use any physical property as they see fit decided not to sell a physical medium, but instead license software for use by the consumer.
The other thing is the fact that back in the 90s Apple did in fact allow other computer manufacturers to sell computers with Mac OS installed. This almost singlehandedly destroyed Apple. People were buying clones and not Macs. The money gained from allowing other computer vendors to sell computers with Mac OS did not make up for the money lost on every sale of Mac hardware.
Even now with Mac market share around 10% allowing other companies to sell computers with Mac OS WILL hurt Apple’s hardware sales. Especially if Dell, or HP for example started to sell machines with Mac OS.
1) Do you really believe your point about ‘changing terms after the sale’? I just bought Snow Leopard from an Apple store and it clearly says – on the outside of the box – ‘use of this software is subject to acceptance of the software license agreement(s) included in this package’. I just checked my boxed copies of Aperture and Office and they have similar wording. I have never seen an attempt to hide the fact that companies are licensing software not selling it, quite the opposite.
2) Do you really think your point about EULAs is anything but vacuous semantics? If you look at the Apple licenses they are nowhere described as EULAs in any case. They also explicitly rule out enabling others:
“Permitted License Uses and Restrictions.
A. Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use
or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so. ”
3) Would you be delighted if I took all the content on OSAlert and republished it on my own, much more beautiful and compelling, tech website ? What would be wrong with my actions? Exactly the right amount of money has changed hands, I’ll even commit to reading your ads… but, gosh, your license at the page footer says I can only reproduce with your permission! Dammit: I don’t like websites that try to control use of my own copy and paste keys!! Where is the freedom?!
4) Fair enough, your product isn’t content, it’s readers which you sell to advertisers. Let’s say I’m an advertiser and I buy your readers fair and square with a front page ad. And then I figure out a technical way to stop them ever coming back to your site. I give them all the tech news they need. They are my readers now, dammit, I paid for them and I’ll do what I like with them! No? You’re not happy with that? Could you explain why not?
5) When Spyker puts an Audi engine in its own car, it also sells its customers a warranty. As does Apple. Spyker also has a license from Audi, which covers issues such as legal liability (if a Spyker blows up and kills its occupant, who gets sued?) What warranty can Psystar reasonably offer, with no access to source code outside Darwin? What warranty does it offer?
I think your position is ill thought through. I think that Apple would be foolish to license its OS to third party system builders, and it has every moral right not to license its OS. Whether US contract law enables that moral right to be enforced remains to be seen. But I doubt any of your points come close to the legal arguments.
5) Please, please, correct the grammar of the phrase at the end of your rss feeds: Read more on this exclusive OSAlert article…
In fact, simply
Read more… would be better.
All the best.
That would be copyright infringement. Psystar are not engaging in copyright infringement.
(Oh, deja vu!)
(Credit/apologies to the Firesign Theatre for the title)
Excellent article, Thom. Sadly, it probably won’t prevent people from dredging up those arguments – but at least now they can be just posting a link.
Personally, I’m already disinclined to feel much sympathy for Apple in this matter – but the fallacious arguments used by many Apple supporters doesn’t help either. The message it sends is “we have no valid arguments, so we’re just going to resort to arguments that are blatantly-fallacious.”
One item I would add to the list: I’ve read several posts arguing that, if Apple were to allow Pystar to sell Mac clones, then it would increase Apple’s support costs because they would have to support unsupported hardware configurations. Aside from the absurdity of that argument (is it really that difficult to understand what the word “unsupported” means?), I have yet to encounter anyone suggesting that would be in any way obligated to support users of Mac clones / “Hackintoshes” – it is the very definition of a strawman argument.
(That argument doesn’t seem to be limited to hackintoshes / clones, I’ve also seen it used to justify Apple’s stance on jailbreaking iPhones.)
One item I would add to the list: I’ve read several posts arguing that, if Apple were to allow Pystar to sell Mac clones, then it would increase Apple’s support costs because they would have to support unsupported hardware configurations. Aside from the absurdity of that argument (is it really that difficult to understand what the word “unsupported” means?), I have yet to encounter anyone suggesting that would be in any way obligated to support users of Mac clones / “Hackintoshes” – it is the very definition of a strawman argument.
Several posts here? I haven’t seen one person talk about the “support costs”. Most are arguing about the EULA and Apple’s right to control it’s own software.
Looks like you are the only one constructing strawmen!
And have you actually been reading the threads? Because I’ve encountered that argument at least half a dozen times (and replied to posts containing them). If you had asked, instead of just going into attack-mode, I would have happily provided links (no, I’m not going to post them here – I have no desire to single anyone out).
You’re leaping to a (unsupported) conclusion. And, frankly, I’m a little bit curious as to why you felt my post warranted such a pissy, snarky response.
And have you actually been reading the threads? Because I’ve encountered that argument at least half a dozen times (and replied to posts containing them). If you had asked, instead of just going into attack-mode, I would have happily provided links (no, I’m not going to post them here – I have no desire to single anyone out).
How convenient.
You’re leaping to a (unsupported) conclusion. And, frankly, I’m a little bit curious as to why you felt my post warranted such a pissy, snarky response.
Because you’re a pissy, snarky guy. Re-read your own posts and stop being a rube.
Yes, yes, I’m fully aware that basic, adult-level civility is a foreign concept to many here.
Your snide implication is noted, though. Classy.
If you’re referring to the opening post, there was a grand total of one (parenthetical) statement that could reasonably be construed as sarcastic. If you’re referring to my follow-up to your post, here’s a new concept for you: “responding in kind.”
Some free advice: if you aren’t going to at least *try* to respond with anything other than infantile snark, you might as well not bother responding to any of my posts – not if you expect any response, that is. After a decade on Usenet, I have no patience for protracted flamewars (especially not with tedious, predictable children) if they’re not at least interesting or involve any sort of worthwhile opponent.
Some free advice: if you aren’t going to at least *try* to respond with anything other than infantile snark, you might as well not bother responding to any of my posts – not if you expect any response, that is. After a decade on Usenet, I have no patience for protracted flamewars (especially not with tedious, predictable children) if they’re not at least interesting or involve any sort of worthwhile opponent.
Actually…you’ve responded twice. That makes you either a liar or stupid…or possibly both!
Take your pick…Genius! LOL
Edited 2009-09-03 00:40 UTC
It’s obvious that you were one of Apple fanboys using BS arguments – and now you’re getting all defensive because someone pointed it out.
I mean, could you sound any whinier? Sweet jesus, someone get the baby his bottle!
Hahaha!
BallmerKnowsBest
“It’s obvious that you were one of Apple fanboys using BS arguments – and now you’re getting all defensive because someone pointed it out.
I mean, could you sound any whinier? Sweet jesus, someone get the baby his bottle!”
Hahaha! (Bolded for emphasis)
BallmerKnowsBest
From the previous post by Mr. BalmerKnowsBest:
“Uncontrollable laughter is a common sign of mental retardation.”
Sometimes…it’s just too easy.
Edited 2009-09-03 20:19 UTC
Way to go, you just admitted that you are mentally retarded. The post you quoted was directed at you, sonny – I know you’re a bit slow, but at least TRY to keep up.
Oh, and since you’re a little dim, allow me to educate you on what the phrase “uncontrollable laughter” means. A good example would be the way you write “LOL” in nearly every post (newsflash, junior: this isn’t an AOL chatroom).
No need to thank me – providing clues to the clueless (for example: you) is just one of the many charitable acts I engage in.
Have a nice day!
BallmerKnowsBest
Way to go, you just admitted that you are mentally retarded. The post you quoted was directed at you, sonny – I know you’re a bit slow, but at least TRY to keep up.
Oh, goodness…you’re dumb. There is a reason I highlighted your HA HA HA.
No need to thank me – providing clues to the clueless (for example: you) is just one of the many charitable acts I engage in.
Considering your complete lack of awareness, I think your “charity” should begin at home.
Edited 2009-09-04 15:51 UTC
An “I know you are, but what am I” flame? You’re really not very good at this, are you?
Now, my predictable little friend, I expect your reply within the hour – chop, chop!
I’m waiting!
Hahaha!
– BallmerKnowsBest
Damn, did you run away already?
Hahaha!
-BallmerKnowsBest
Seriously, you cannot feel sympathy for them? Even though if we distill the issue it will sound like this – an entity (I’m not using company or corporation, because everyone’s reaction these days seems to automatically be – companies are big and rich and therefor evil) invests money, quite a lot of it, I’d assume, given the level of talent that works there, into the development of a piece of software, for the sole reason of having something to differentiate them from their competition; and the product of said investment is taken by said competition and used to sell stuff, under the pretense that the terms of the license don’t apply to them or that the license is bullshit.
Would you feel so little sympathy if the places of the “underdog” and the evil corporation were reversed?
Mmm? Yes, that’s what I wrote.
You left out a few fairly significant details. Like the fact that Apple also sells their operating system at retail, separate from their hardware (of course, if they *didn’t* sell it at retail, that might put them in the position of having to provide free major version upgrades to existing Mac owners – cutting off, I presume, a decent income stream).
Or the fact that there are perfectly legitimate ways for them to limit the use of OS X to Apple hardware – like requiring all OS X/Mac buyers to sign a clear contract at/before purchase (of course, that would probably inconvenience Apple and cost them – both in terms of lost sales & extra logistical expenses). Thom’s article even gave an example of that exact approach.
What it essentially amounts to is that Apple is trying to have their cake (use powerful, inexpensive commodity hardware) and eat it too (limit their OS to their own hardware). So no – the feeling that evokes in me is most definitely *not* sympathy, more like bemusement.
Retail or not, Apple are still selling you a license, which comes with the terms detailed in the software license agreement.
Anyway, do you feel the same way about Snow Leopard, which is sold for $29, although there have been no less time, effort and money invested in its development than any of its predecessors?
And you too conveniently omit the fact that it will also significantly inconvenience the user purchasing the software. In other words you think that because Apple decided to treat their customers like honest people and not implement, like other companies, amongst which Microsoft and Adobe, some asinine serial number and activation scheme, they should be punished now.
Bemusement, in fact, is a very good description of the way I feel after reading this last part of your response. I’ve already said it, but i seems it bares repeating, Apple invest time, effort, and money into the development of Mac OS X for the sole and explicit purpose of differentiating their “powerful, inexpensive commodity hardware” from everybody else’s. For that they fully deserve to reap the benefits of that investment.
…a license which is not legally-enforceable in many countries (those that put consumer interests ahead of corporate interests), and which is treated by Apple as if it were legitimate contract.
I don’t see what relevance that point has. If Apple chooses to sell their software at a price that is insufficient to recoup their development costs, then the fault is Apple’s – and Apple’s alone.
Poorly-conceived business models may work for a while – but that doesn’t mean that they deserve to be propped up.
You are mistaken – that was clearly implied in my post:
“that would probably inconvenience Apple and cost them – both in terms of lost sales & extra logistical expenses”
(Emphasis: mine).
Oh, please – give the spin and hand-waving rhetoric a rest.
Good for you, but I’m afraid you’ve failed to refute my argument in any meaningful way.
Except for the fact that, once again, you’ve left out the details that are actually significant:
1) It’s NOT their hardware. Apple has had no more involvement in developing the hardware than any other OEM.
2) And, by the same token, the hardware is NOT differentiated from what anyone else sells. You, I, or anyone else could go out and buy the EXACT SAME Intel CPU and ASUS mother board, etc, that Apple uses.
… for the simple fact that EULAs are unconstitutional and directly contradictory to fair use rights.
Also, I want to see the end of “licensed” software, that is, if it is actually purchased in boxed form (or purchased and downloaded).
As far as I’m concerned, if you purchase something, it’s yours, to use as you see fit, with no restrictions, period.
This whole licensing when purchasing is really a bait ans switch. Purchasing suggests ownership.
What proprietary software companies should do is migrate to a rental model. Renting does not suggest ownership, and comes with implied restrictions. And with renting, you know what you get.
But purchasing is ownership, with zero restrictions.
Plus, I’m really pretty anti Apple right now (even though I have an iPod, and considered purchasing an iBook). The whole iPhones exploding is the customers fault? C’mon! Do you think Boeing could get away with that? GM? The iPhone – the Ford Pinto of smart phones.
Thus, even if I were on Apple’s side in the Psystar case (and I’m not), I’d want them to lose, just to see them get reamed.
Sorry, but I don’t want to be anti-Apple. I want to like them.
But I’m always against huge companies that have serious ethics issues and that screw over their customers.
Pray tell, how are EULAs unconstitutional? And you do realize that “fair use” is not actually a legislated principle and thus it is impossible to “directly contradict” it?
No restrictions? Nearly everything you purchase has restrictions on it, many of them with much stronger legal backing and long prison sentences if you violate those restrictions.
You don’t seem to know what bait and switch means.
Sure, purchasing a license suggests you own it.
Many proprietary companies do use a renting model. Ownership does not suggest there is no restrictions. When you buy a copyrighted work you are buying a license, and that is true regardless of what copyrighted work you are buying.
Repeating it doesn’t make it true.
Apple stopped making the iBook 5 years ago, so you also aren’t really up to date on Apple’s product line. And I find it amusing that you automatically assume that because someone claims an iPhone exploded that they must be the ones telling the truth. Because no one has ever lied to try and extort a payout from a company before.
You are definitely not an angry vindictive individual.
Clearly, your post just oozed your repressed love for Apple.
The only “customer” that Apple could conceivably be considered to be “screwing over” in this case is Psystar, and I don’t think that Apple considers them a customer in the first place.
Thank you for another fascinating “legal” analysis of the Psystar case, I can always count on OSAlert posts and comments!
You are one serious prick, and ignorant beyond description.
I don’t like Apple, therefore I’m evil. Got it.
Now go back to masturbating at your Steve Jobs shrine, fanboy.
Seriously, I’m a dissatisfied Apple customer. That is my right to not be happy with the products and services that I have purchased from them. They failed to deliver the value for the money that I expected.
And the exploding iPhone has been filmed, and has come from several different sources.
I want to like Apple because they are great competition for Microsoft. And they make slick products with slick marketing. I just don’t like their attitude towards customers.
I also don’t like EULAs. So shoot me.
And yes, if I buy a hammer, I can do whatever the hell I want with it, short of using it to hurt someone.
And I don’t like the unreasonable restrictions that come with EULAs.
But I know I’m wasting my typing with you, that’s for sure. You are such a ridiculous Apple worshiper, you’re beyond hope.
Good, then you should be able to point out all of the mistakes I made in my post.
Strawman, I never called or implied that you’re evil.
Sure, pointing out your lack of legal knowledge makes me an Apple fanboy, that seems like a rock solid logical conclusion to me.
You failed to point out one single instance of you being an Apple customer and having a dissatisfying experience with them. How is anyone else supposed to know what you have or have not done unless you tell them.
Link please.
Great.
Seems like shooting you would be going overboard a bit. You should really talk to someone about this repress rage though.
Aha, a restriction. Now go look at the restrictions associated with, for example, a smoke detector. Really, there are restrictions on everything you buy.
How are they unreasonable?
I sacrifice a goat in the name of Steve Jobs every morning. Oh, and you seem to have failed to respond to any of the points I made in my email, much less show that I am “ignorant beyond description.” So I’ll be eagerly awaiting your description of how EULAs violate the constitution and “directly” conflict with fair use. You should probably start with rebutting the copyright clause and the interstate commerce clause, you’re going to need to defeat both of those to get past the unconstitutional thing.
Edited 2009-09-03 16:55 UTC
Firstly the point about Pystar not being the end user. This comes back to who agrees to the EULA, which is presented at install time. If Pystar accepts this on behalf of the client then they are assisting the client in breaking the law, so they are at very least an accessory. Even if they weren’t required to accept the EULA to install the OS they would then KNOWINGLY be selling the package to someone who, in using that package, would be breaking the law – again this is illegal. So whatever spin you try to put on it, if the license is in fact enforceable (which is what this is really all about) then both Pystar and their clients are breaking the law.
Then there is the Ferrari story. While this is a nice story – with colour photos and all – that on the surface draws parallels, there is one thing you failed (forgot?) to mention. When installing OSX you are presented with the EULA. At that point you have a choice. You can agree to it and continue, or disagree and return the product FOR A FULL REFUND. If you don’t agree to the license there is nothing forcing you to install the product and you are rightfully (at least in my country you are) entitled to a full refund because the terms of use weren’t presented before the sale and you don’t agree to them. This is no different to the insurance industry, in which you can phone a call centre and take out a policy over the phone. You will pay for that policy at that time. They will then send you the terms and conditions (PDS – Product Disclosure Statement) for the policy and you can either agree to them (and keep the policy) or disagree and obtain a full refund.
Bottom line with this is and always has been…
IF YOU DON’T LIKE THE TERMS OF USE YOU DON’T USE THE PRODUCT.
So Psystar showed that all the copies of OS X they installed on their machines were each, individually purchased from Apple? That’s cool. I am surprised they didn’t lose that documentation or something.
===
The truth is, of course, that Psystar is buying fully legal copies of Mac OS X from Apple retailers or even directly from Apple itself, and reselling those copies.
===
First, they never said “all.”
Second, why do you find it hard to believe Psystar bought at least some OSX copies directly from Apple?
http://store.apple.com/us/browse/home/shop_mac/software/apple?mco=N…
Looks like anyone at all can buy Apple software directly from their online store. You don’t have to prove you own a Mac, you don’t have to be a registered user, and there’s not even a secret handshake.
They never should have installed OS X on their own (Psystar’s) hardware. They should have simply resold OS X and their hardware as two separate products, and provided a really easy way for the customer to install OS X on their hardware. It would have completely side-stepped the issue of licensing vs sale, at a slightly higher cost to customers. But, I would argue that a customer that’s motivated to buy a Psystar machine is probably not your average consumer. They probably don’t mind installing the OS, themselves, as long as they can save a lot of dough vs Apple hardware.
Can’t Apple just start selling OSX as “upgrade only”? Keep the disk the same, but just essentially change the wrapper?
It’s called Software Licensing Agreement. The validity of the contract nevertheless isn’t affected by what the contract is called.
There are three arguments on why EULAs shouldn’t be enforceable:
1) Insufficient notice of the terms at the formation of the contract – i.e. I bought the software at the store, but I didn’t know about the accompanying contract – so those terms shouldn’t be part of the original contract.
The strength of this argument relies on what terms it seeks to invalidate. If the EULA states that users can resell, and the end user resells the software box without opening it, those terms aren’t considered enforceable. More murkier are the usual terms – because, depending on the jurisdiction’s contract law and past case law, whether the EULA can be considered part of the original contract or an additional contract independent of the sales contract.
Pystar can’t claim this as defense because they have demonstrated knowledge of the SLA. In the US, the very, very limited case law is currently tilting in Apple’s way.
2) The contract is illegal
Essentially this argument entails that adding another contract after the point of sale (the transaction) is unfair and illegal because inhibits the purpose of the original contract. In other words, you bought the software online or at a store to use it, but the new contract prevents you from so unless you agree to another contract. In Apple’s case, rejecting the SLA means paying for a restocking fee (if I’m not mistaken). It really depends on the jurisdiction and the contract law practiced there, I don’t think this argument can fly in this case in California.
There is very, very limited case law, and thus this remains a debatable point in legal scholarship on whether such contracts should be invalid or illegal. Personally, I think those contracts should be enforceable as long as there is no cost to the user for rejecting the new contract (i.e. no restocking or return fee) – software is never sold to an end-user as a product, rather as a license. And quite often, the sale is done by a different party.
If this doctrine is taken in this case, if I buy Snow Leopard on Amazon, my contract is solely with Amazon and Apple is merely a third party. Imagine how this will make software development, both open and close sourced, almost entirely infeasible.
2) The terms are illegal
Except for several European jurisdictions, where contract law is based predominantly on written law with a good dose of “consumer protection”, this isn’t the case in the US, where case law forms the bulk of contract law.
As case law isn’t developed on shrinkwrap licenses, the courts could go either way on this – albeit California may not have the most friendly judges to create such case law.
Now if Thom wanted to write an intelligent article about myths in the Psystar/Apple issue, he’d write an article that pointed out that this simply isn’t true. There is plenty of case law going up to the appellate level which clearly shows that EULAs are valid. In the ninth circuit, MDY v. Blizzard is binding precedent and almost completely on point. Feel free to read it, or read Groklaw’s analysis: http://www.groklaw.net/article.php?story=2009081716312060. There is virtually zero chance of this “going either way”, unless Psystar pulls a rabbit out of their hat and it’s looking increasingly more likely that they are going to pull sanctions out of that hat on top of loosing.
The MDY v Blizzard case didn’t deal with legal arguments related to shrink-wrap licenses (most of the legal arguments in fact didn’t touch contract law – they focused on copyright law, and DMCA in specific).
The two Gateway cases (Klocek v Gateway and Brower v Gateway if my memory serves well) clearly underscores the lack of a consensus in the judiciary on shrinkwrap licenses.
I’d agree that the courts will probably rule that shrinkwrap licenses being legal contracts (business efficacy argument), but I don’t think it is a settled issue. Therefore, it could go either way.
This is getting really tiring, now I post links to relevant case law and analysis and still.. Here’s a snippet from the decision in MDY v Blizzard:
“During oral argument, counsel for MDY asserted that a person who purchases a copy of the WoW game client software from a commercial retailer and walks out of the store with the copy in hand certainly would not view himself as a mere licensee of what he just purchased. The person could dispose of the software copy as he chose, throwing it in the trash, giving it to a friend, or installing it on his computer all consistent with ownership.
Counsel for Blizzard responded by noting that the license is clear from notices on the box purchased at the retailer and from a paper copy of the EULA contained in the box, as well as from the online notices that appear when the game client software is installed on a personal computer. One wonders what more could be done to make clear that the purchaser is a licensee, not an owner, of the software. The Court also notes that a complete prohibition on transfer of the software is not an essential requirement of a license under the Ninth Circuit’s holding in Wall Data. The license at issue in Wall Data did not prohibit transfer of the software. See Wall Data, 447 F.3d at 775 n. 5; see also Vernor v. Autodesk, Inc., — F. Supp. 2d –, No. C07-1189RAJ, 2008 WL 2199682, at *7 (W.D. Wash. May 20, 2008) (the license in Wall Data “imposed no limits on resale of the software”).
MDY’s counsel also asserted at oral argument that Wall Data is distinguishable from this case because Wall Data involved a negotiated license between the software vendor and the software purchaser, not a standard form license like that contained in the WoW game.
MDY is mistaken. The software used in Wall Data was purchased through an approved vendor and was governed by “volume license booklets.” 447 F.3d at 774. The transaction included a “shrink-wrap license, click-through license, and volume license booklets.” Id. at 775. The specific license at issue was the “standard” click-through license. Id. at 775 n.5.
The Blizzard license in this case is also a standard click-through license.”
Nope, MDY v Blizzard doesn’t mention shrink-wrap licenses at all…sigh. Now, please, before you post again, read the Groklaw article. Read it twice. Because MDY v Blizzard is binding precedent and on point.
I’m not disputing your points or anything, but I just want to say that Groklaw really dropped from my sources-to-trust list.
PJ believes that the Psystar case is related to the SCO case, and is part of a concentrated effort to… Destroy the GPL.
Just to let you know that PJ is turning into somewhat of a black helicopter aficionado.
If you are incapable of separating PJ’s hypothesis of the motivations behind a lawsuit and PJ’s legal analysis of the lawsuit (or hell, just read the case law that is posted to back up said analysis), then you have no business posting anything about legal matters, much less pretending that you have the capability to debunk “myths” about a legal matter.
And, although I don’t put much stock into some of PJ’s hypothesis, she is correct that Psystar is attempting to use the same arguments to invalidate Apple’s EULA as people have used to invalidate the GPL in the past.
Wow!
Mr. Holwerda responds!
Oh but he doesn’t trust the source so he won’t refute the argument.
Funny, I don’t know the first thing about you, and yet, I try to counter argue.
It seems I am the foolish one…
That’s not what I said. What I said was that even though it does NOT invalidate OP’s argument, PJ has gone black helicopter lately.
That’s all.
Apple have always wanted the best user experience for their OS. This is the only reason Apple wish to tie their own OS to their own Hardware.
There’s a word that springs to mind… Oh yes, SYNERGY!
Except Apple no longer has “their own” hardware; they use generic off-the-shelf computer components.
I understand most people use EULA as if that is an official legal document (like a form 1040), and now it is a rather generic title, but in this case, Apple uses the term SLA.
Your fact by stating End User Licence Agreement is flawed because Apple does not call it an End User document, but a Software Licence Agreement which then puts your myth out the window faster than fresh air after my Uncle Larry farts on Christmas day. Okay bad joke there, I don’t have an Uncle Larry, it is Uncle Harry.
Anyway, the SLA is just that, licences the software and Apple is certainly entitled to do that. A with most computer software these days, it is not sold but licensed.
If you don’t believe that theory, go to CDW and examine the cost of software without the license. You will find that Adobe Creative Suite CS4 Master Collection costs a mere $15 since all that gives you is the DVD.
If you want the licence to use it, you need to fork over the two grand.
That being said, you should learn to read your facts before you start throwing fallacies as fact. I was reading this article with great interest until I saw you point out the EULA part, failed to acknowledge the SLA and gave horrifically crafted thesis based on your stupidity. After that, I couldn’t read any longer since if you put such little effort into your analogies, I didn’t want to waste my brain capacity with such drivel.
The fact of the matter is, Apple licenses their software. If Apple’s SLA states that you must use their hardware in order to use their operating system, then Psystar is breaking the agreement by selecting I Agree when they install the OS to a non Apple hardware device. While that may not be illegal, it is certainly punishable by civil action since Psystar broke a civil agreement by stating they won’t do what they very well are doing.
I can’t think of any good enough analogy to describe what this is more like, but only thing I can think of top of my head are Medeco keys. They are normal keys and locks, that are keyed slightly differently, that requires a licence to have copied from a licensed dealer. That being said, it is against Medeco’s agreements that you can not copy the key unless you have the licence to do so (or any other key marked do not duplicate). While the analogy isn’t the best, it is the closest thing I can think of that really gets the point across what Psystar is doing here.
Yes, they can make similar hardware, but it isn’t Apple hardware. The whole point of using Apple software, and its gorgeous interface, and rock solid operating system, is to use their rock solid hardware. The whole reason why Apple just works, is because the hardware is locked, closed, and controlled. It is that reason why IBM Clones are full of problems. The fact Microsoft Windows works on cheap motherboards and expensive motherboards off the bat is a miracle in itself. The fact Microsoft has to make sure it works with basically everything, is that they had to make the code less secure, less rock solid, to make it more compatible. If the list is short what works with Apple, then Apple tested that specific device to make sure it works. Yes you can get 100% of the components Apple uses, but there is more to it than hardware and device drivers that make a computer, a computer.
When Steve Jobs came back to Apple, the first thing he did was get rid of the clones. With good reason too! While it does make more of an advantage to Apple economically, it certainly does not make a monopoly. Because Apple has always been a hardware company that happens to make their own operating system.
Remember, Microsoft was going to make their office suite initially! To go onto Apple hardware. Another way of looking at it is, with Cisco routers. You can buy the software that gets installed onto the router from Cisco, but if you make a clone of the router to save money (Cisco:Apple::IOS:OS X), that would be against the license (I am assuming Cisco doesn;t allow this as well, though I did not read its agreements in its entirety since I do own a Cisco router and not a clone
I think I said more than enough since I intended just to come here and rant about you calling it a EULA when it is an SLA, but then I realised that mistake completely ruined your entire article for me!
fails most of the time.
Look, Thom, you are getting owned in these comments.
I would appreciate it a lot more if you engaged in this as a conversation and responded to the comments, especially the points revealing how little knowledge you have of US law and EULAs and their status. Sure, in your happy world, EULAs should not be enforceable. That is a fine opinion. I kind of agree. But it’s not the real world. Why not update the article with that information, pointing out your views and how you are probably wrong? It’s called balance, and it would make this site tremendously better.
As of now, it’s just like your personal blog. And it’s boring and ill-informed.
Again the usual stupidity from Holwerda, lets go through crap, shall we?
“Nor Mercedes, nor Suzuki have any obligation to make it easier for you to perform such an engine swap”
Neither Apple, what is your point?
“Mac OS X, however, while designed to run on Macs, is very easily installed on non-Mac machines. Snow Leopard is a little too new (but lots of people are already successful at installing it non-Apple labelled machines), but it’s completely trivial to install Leopard on a non-Apple labelled machine. ”
It is because Apple allows it. If Apple would really like to play like Microsoft, it would enforce the use of activations or if they get pissed off by all of this at Cupertino, they could develop hardware recognition features that would prevent the installation of the OS on a non-Apple machine. The fact that you can install it quite easily on a non-Apple machine is just because Apple is not willing to implement something that would prevent you to do that. But that’s not even the question, being installable or not. You miss totally the point.
If you would take the analogy of the car, you would say, hey Mercedes is building a super fast engine, is Fiat allowed to force them to give it away so that Fiat can install this engine in a car that they specifically assembled so that it can fit it? This is the real question and the answer is no way.
The Mercedez engine is an intellectual property of Mercedez, they spend money, human resources to develop it and in any way they can be forced to give it away to a competitor even if this competitor happens to have a car where the engine could fit. The same thing is applicable to Apple. Apple owns OS X, it had developed it, spent money doing so, so it has the right not to give it away because indeed competition and innovation won’t be possible then. Psystar is competing in the market as Apple, the same one (a fact that you completely miss and miserably fail to understand), so Psystar can’t force a competitor to give a peace of software that was developed by the competitor and hope in the same time to compete with this same competitor on the same market. People who would argue against that have to be totally stupid.
“Heck, the internals of a Mac consist of the exact same parts as any other random machine. In fact, a lot of other manufacturers even use higher quality parts.”
Stupid argument, a plane or a car is made of a ton of common components manufactured by the same companies, does that mean that Airbus and Boeing planes are identical? I don’t think so. Plus having the same parts does not mean equality in build design, architecture and so on. Open a dam Mac Pro, that’s infinitely better designed than any pc workstation on the market, still having some identical parts as Dell of HP workstations.
“However, even if you are successful at putting a Mercedes engine in your Suzuki, nobody is going to care. Mercedes won’t sue you, Suzuki won’t sue you.”
Apple won’t sue either. Mercedez is not happy at all if they know that their engines are being moved around. Apple does the same, it gives you a Software license agreement (a lot of car engines have also detailed agreements that the user should follow before using them) and if you don’t agree and violate it, basically Apple can’t know it as long as you do your things by yourself. And this the point that you miss, as long as you as user don’t try to make a business of violating the software agreement, that’s fine. Apple has no way to check if users are installing OS X on a pc for their personal usage. Again because Apple does not do anything to prevent you to do that besides asking you not to do it.
But the case of Psystar is totally different. They are violating the software agreement and making business of that. This is where Apple can sue them because again Psystar is stealing an intellectual property and use it to compete on the same market where the owner of this intellectual property is competing.
“You can even make a business out of doing something like that. In fact, this is exactly what many smaller car manufacturers do. Spyker uses Audi engines. Pagani Zonda uses Mercedes engines. Weissman uses BMW engines.”
What? But this has nothing to do with your previous statement. Here you refer to manufacturers which have licensed third party engines. Audi, Mercedez or BMW build engines for this companies because they pay for that as much as Intel build processors for Apple or Rolls-Royce is building engines for Boeing. Those companies don’t somehow take a mercedez engine somewhere and put then in their car, are you crazy?
“These smaller car companies buy engines from bigger brands, and build cars around them. They even tweak said engines for better performance if they have to. Psystar is doing the exact same thing: they are buying legal copies of Mac OS X, and build computers around them.”
You don’t know what you are talking about. Those care companies license third party engines, engines that are specifically built for this sort of cars. It is possible because Mercedex or BMZ are not only car manufacturers but also engines manufacturers, they sell engines to other car companies. If Intel starts to sell its own computer, does that mean that they need to give away any technologies built with it? No way, they can continue to sell processors to competitors and keep its own technology for itself, being software of hardware.
Besides that those engines are not the same ones between those brands, this has nothing to do with the Psystar case. Psystar is doing something that Apple is not allowing in the first place, Psystar is stealing Apple technology as much as a random compagny would start to steal Toyota hybrid technology.
By the way, if you want to speak about car, be sure that you know what you are talking about. If a take your Pagani Zonda example, i note that the engines of those cars are of the type AMG V12. Those engines are produced by Mercedes-AMG GmbH, subsidiary of the Mercedes-Benz car company specializing in high-performance luxury cars.
“Even if Audi, Mercedes, and BMW stopped selling engines to those smaller brands, those smaller brands could still, technically, simply buy complete cars, rip out their engines, and discard of the remaining carcasses. ”
No way stupid dude….. Can you believe one second that a luxury manufacturer like Pagani Zonda will do that?
“In fact, coach-builders (which are commercial enterprises!) do something similar: you provide a donor car, they strip it until only the chassis or chassis and engine are left, and then put different components on top. ”
Out of topic, you will anyway face the car authority for driving a car which is not approved. Trying to say that you can do whatever you want with a car and keep driving it without consequences shows how foolish you are.
“Second of all, this analogy is flawed because Psystar is not trying to install Mac OS X on ready-made machines from for example Dell or HP. ”
What makes Psystar different from Dell or HP? They all compete against Apple. Psystar competes against Apple on the same market, why installing OS X illegally on their machines is different from Dell or HP? I mean stop the non sense, this is completely crap what you are saying, this is child level reasoning.
Edited 2009-09-03 05:57 UTC
In the end the car analogy doesn’t really apply since software is a license, but in trying to discredit Thom for his car analogy, you pretty much got everything wrong.
Since car parts are considered physically owned property, his analogy would stand IF software were also treated as property.
You can do whatever you want with such car parts, including building a multi-million dollar business without ever asking for any kind of permission from whatsoever, as long as you have legitimately purchased each part you’re using.
And by “legitimately purchase”, that can be anything from purchasing straight from the factory to grabbing parts from a junkyard, to donor cars, whatever.
Have you ever looked at the aftermarket car business? It isn’t just about reselling, at its core it’s about taking something someone else has produced and modifying it then selling that modified product. Again, you can’t get sued for it (patent infringements not withstanding) and no need for permission.
In fact reverse engineering, or just straight forward engineering if the design is obvious, is routine in this business everyone designs a little widget of their own to modify someone else’s or to convert or adapt one piece to another piece. As long as they aren’t infringing on patents that haven’t expired (some have, especially for older engine designs which is one of the reasons why they’re so popular for ground-up race engine building), there’s no need for any IP licensing either.
huh??? There is a process that allows anyone to register whatever car they want, even custom built cars such as kit cars (replica AC Cobras for example) as long as it complies with certain regulations.
And if the vehicle is already registered and assigned a VIN, you can still do whatever you want with it as long as it complies with federal regulations. Look at the aftermarket business, it’s exactly as Thom mentioned, people make a business transforming vehicles essentially into entirely different vehicles than that by the original manufacturer and all without the need for permission from said manufacturer.
And i can also ask that would it be possible that Nintendo sues Sony in order to force it to give away the PSP 3 operating system so that wii users can install it? Or is Microsoft suing Nintendo so that they force them to give away the wii operating system and gestures recognition system so that Xbox users can install it? No way….
The fact that the software could run or not on the given hardware does not matter. Again Apple could easily prevent OS X to run on non-Apple machines. The point is that those companies can’t do that because they compete on the same market and their respective operating system is a tool for competing between each other. The same applies for Psystar and Apple, Psystar can’t sue Apple for anti competitive practice because Apple doe not give away OS X when in the same time OS X is a tool that Apple uses to compete against dell, hp and psystar
” In fact, clone makers like Psystar are trying to match the components inside Macintosh machines as closely as possible, to ensure that Mac OS X runs the best and is easily installed.”
That means nothing, Psystar is again a competitor to Apple on the market, being a clone maker or not.
“If you could build a device with similar components as used in that Nokia phone, and you found a way to transfer the code onto it and run it, Nokia won’t sue you.”
It won’t as long as you don’t enter in competition against them on the same market with their own software
“You paid for that phone and the copy of the software on it, so you should be able to do with it as you please as long as you remain within the boundaries of copyright law.”
Means nothing, because that’s not what Psystar is doing. See above.
“Unless Psystar employees are walking into Apple office buildings or Apple Stores to actually take Apple-owned items without permission, Psystar isn’t stealing. The truth is, of course, that Psystar is buying fully legal copies of Mac OS X from Apple retailers or even directly from Apple itself, and reselling those copies. I’ve lost count how many times I’ve resold legally purchased copies of software. Heck, I even resold legally purchased retail copies of Mac OS X several times. If that’s considered stealing, then I – and a lot of you, too – belong in jail.”
How can’t you come up with so much wrong arguments, you are embarrassing yourself. If you sell a product that you bought, there is nothing wrong with that because you just sell it, end of story. You happen to have sold a lot because you bought a lot, but anyway you are not making a business of it. What a hell this has anything to do with the Psystar case?
Psystar is not allowed to resell copies of an intellectual property so that it can compete against Apple, selling back what Apple sells for being used not resold by an Apple’s competitor. The things that you are saying have nothing to do with the present case, and i am quit amazed how little reasoning you are able to do. Go back to school, really!
The rest of your text is just not worth commenting, some other people have showed anyway how wrong you are. You did not even notice with your typical lack of self documentation that Apple never refers to an EULA, Apple speaks of SOFTWARE LICENSE AGREEMENT for Mac OS X
http://images.apple.com/legal/sla/docs/macosx106.pdf
Well, well, again the full bunch of crap from Holwerda that puts OSAlert a little more down into the toilet.
Edited 2009-09-03 05:53 UTC
If I get a copy (poster) of some piece of art, once I have it, even though it’s not the ‘original’ and merely a copy, I can hang it anywhere I want, modify it anyway I want or use it to create something new. As long as iIt’s for my personal use and it’s inside my house, the artist or the holder of the copyrights can go and ______ (fill the blanks).
Software should be the exact same.
Wow that is the best analogy of an EULA I have seen. Thanks for putting it into perspective!
I’ve been thinking about starting up a fast food restaurant chain. Only we don’t sell food, we license it. That way in our license we can spell out exactly how, when, where etc. you must eat it. It’ll be a six page, fine print legalese document you sign when you order. You will own the container, but we’ll retain owenership of the food itself.
Eventually after you’ve eaten enough of it, we will for all intents and purpose own a portion of you. Whatever you do, don’t break our EULA, otherwise we may repo your arm.