So it looks like wannabe cloner Psystar's supposedly
hotshot law firm of Carr and Ferrell regrouped for a deep think after
pumping out some
fairly weak arguments in its case against Apple -- according to a new draft of Psystar's countersuit, the Florida-based computer reseller should be allowed to sell whitebox Mac OS X machines because it legally purchased copies of Leopard at retail. That's the first sale doctrine, if you're into copyright law -- it states that the purchaser of copyrighted materials (like a book) can sell or dispose of them however they want. Here's the thing though: a big part of Apple's case (but not
all of it) is based around the fact that consumers
license OS X under the terms of the EULA -- and courts are basically up in the air over whether the first sale doctrine should apply to software transactions. It's an interesting tactic with a ton of repercussions beyond Apple if it's successful, but we honestly can't see it working -- in the cases where first sale has been used to overcome a EULA, it's generally been for used software, not companies like Psystar, who are modifying and installing new copyrighted software sold by a first party. We'll see how Apple responds -- things just got interesting again.
Update: World Of Apple notes that this argument has been present from the outset, but it sounds like Psystar's really pushing it now. We'd say so -- we think it's the only plausible one we've heard so far.
[Thanks, iB3nji]
Disclaimer: Nilay's a lawyer and about to fall over from CES, but he's not your
lawyer, and this isn't legal advice or analysis.
posted January 14th 2009 3:13PM
@ lucas "they are using the Apple trademark on MacOS to sell the machines"
Apple's trademark claim is one of the weakest trademark claims I've ever heard of. You are allowed to use a trademark for informational purposes, so long as it isn't trademark infringement. Psystar isn't even using MacOS as a trademark (it would have to call its product Psystar MacOS" or something similar to do that. They are just saying "our computer runs MacOS," which is factually true. It's similar to Pepsi being allowed to say "We're better than Coca-Cola" or "78 out of 100 people couldn't tell the difference between our product and Coca-Cola." Yes, they are using the Coca-Cola trademark to sell their soda, but it still isn't trademark infringement.
I will admit that your "modified software" point is interesting, albeit possibly not valid either.
The software developer's supreme authority over the reseller and user may be legal, but it sure as hell is medieval. Basically they own the turf and so any little serf who wants to make use of it has to pledge fealty?
All hail!
Yeah, but "I'm a serf" really doesn't have the same ring to it as other similar sayings.
What is going to end up happening is Apple no longer selling Full versions and only "Upgrade" versions of OSX on the shelves. Meaning you have to have a current install to install an upgrade. This would probably result on clean installs requiring you to insert the original Software disk the computer came with to tell the upgrade disk you have a full copy. If this happens I swear to god. OMG. This is just getting old, Apple has every right to say they only want their software to be installed on their computers, end of story. Like it or not, if thats what they choose. I hope the law takes Apples side, this is just getting old and taking up valuable time. Here is me hoping all the court fees push Psystar into bankruptcy.
If that happens you'll swear to god?
Anyway, I do hope that happens, so OSX can grow more and more isolated from mainstream computing an finally die. Yay
this is the only way a normal person or small company can fight illegal and unfair business. an individual cannot lobby congress with millions to craft copyright laws. the only thing possible that a small fry can do is disregard that law. when the big boy comes along and slaps him with a team of lawyers it is small fry's job to prove to the court why that law is unfair/illegal. after that the courts will change the law to be more fair.
anyone that roots for apple on this one is fundamentally wrong on this issue. i own two apple computers. i have two different copies of osx and i should be able to do anything i want to them because they are mine. screw the eula. screw you useless chumps that bought "licenses", grow a spine and buy software. i do not ask apple for permission to use the stuff that i paid for and they don't have the power to stop me from installing it on a x86 system that i built.
i can install dozens of OSs on my x86 pc. why does a eula have the legal right to keep me from putting osx on it? can i put a chevy engine on a ford? sure. does anyone give a crap? no.
people should stop being fanboys and grow up to be educated adults. even better, adults with a spine.
"...the cases where first sale has been used to overcome a EULA, it's generally been for used software..."
Well, if it has been installed by Psystar, it has been "used"
There's got to be someone big behind all this, i mean how hard can it be for Psystar to just sell Hackintoshes and then provide a link to Amazon or any other retailer for people to just grab their own copies of OS X, i mean ether they're pretty dumb or they're just a front for a big company that's looking to sue Apple but wanna stay out of the public eye
They would have better lawyers if they were a front for a big company. Who wants to run OSX anyways? Windows 7 beta installed since launch and its SWEEEET.
Apple really opened this can of worms themselves when they switched to Intel. They drastically increased their profitability by running on commodity hardware, instead of PowerPC... but it let the hackers in, and they knew it would happen. Apple will protect their hardware lock until the bitter end... but as long as they remain on commodity hardware, they are going to have a constant battle.
Why Hackintosh? Vista is far more compatible and stable for a PC than OSX is. I think the "we want our OS locked out of your reach" crowd is really just peeved that OSX isn't so elite and special anymore.
I thought they'd be keen on more people adopting OSX and would be pushing Apple to release a stable version for PCs.
It's not ..'."we want our OS locked out of your reach" crowd is really just peeved that OSX isn't so elite and special anymore. '
It's a "I don't want to spend my time running a bloated OS and have to find every driver for each different device from some vendor website every time Windows decides to take a header" I'd rather have something that works all the time with controlled hardware choices that already work with the OS.
There's no elitist mentallity among most mac users. We just want stuff to work well and the increased cost is worth it. (hint, it's not that much more money).
If I want to save a bunch of money, I'll run to some outlet and by a refurb'd crappy machine and trade the money I saved for headaches I'll get. At least then I have a chance to get it working with the right drivers. Will pystar be making drivers for OSx available?
Are drivers really that big an issue these days? I bet Apple's driver support would be phenomenal, and innovative and would show the industry a few new tricks. Even the much maligned Vista, after it's teething horrors, is pretty much painfree when it comes to sorting drivers.
Apple, as has been said before, is primarily a hardware company. They make hardware and then put their operating system on it. The cool thing is of course that OSX is a huge selling point, it is especially in terms of the average user, a far superior OS, simple and easy to use, obviously not the greatest environment for corporate activities, but used as a home computer it is far superior to windows. Most of you people seem to have forgotten what happened when apple allowed clones in the past, they very nearly died, apple's premium pricing on their hardware would now guarantee that failure, without OSX fueling apple hardware sales, there would be no Apple, and therefore in the end no OSX, and essentially no competition to Windows, meaning a Virtual monopoly beyond what we see to day, and no matter how you look at that, a monopoly is in the long run detrimental to the consumer. Obviously Linux would still exist, but they appeal to a completely different group than the average consumer, and so they would not be able to offer any significant competition.
"Most of you people seem to have forgotten what happened when apple allowed clones in the past, they very nearly died, apple's premium pricing on their hardware would now guarantee that failure . . . [ramble ramble ramble]"
How is Apple's inability to compete on a level playing field at all relevant to the legal argument? We get it, Apple sucked at business, so they had to implement a protectionist and restrictive policy to support their overpriced hardware, sprinkled with a lot of marketing savvy. But the issue here is whether Apple can implement that protectionist policy... the sucking at business has no part in the argument.
Just heard Jobs is leaving as CEO.
In my opinion, Apple is the Bose of computers, people have bought into the marketing crap. Enjoy your over priced white laptops...
I think Psystar is just buying time, because they already lost, and they WILL lost. I prefer otherwise, but it's a fact. They are just extending it because:
- they would go bankrupt anyway, even the first lawsuit would be enough in lawyer royalties and damages for them to pay, so why not try a bit more?
- while it's still on cour, they are selling (I believe), so they can still make the initial investment pay off before closing doors. If they admit defeat, they will need to withdraw their product form the market and die.
Actually, I'm sure they're putting every possible argument out there because they intend to appeal.
If PsyStar wins or not Apple went to Intel chips and opened them up to the open source community. The 1st quality open source project to come out with an emulator will destroy the need for Apple hardware and bring this whole issue to an end and when it comes to defending against this sort of thing the open source community has the advantage because all they need to do is find a crack in that famous Apple armor. And the only thing Apple can do to defend against this issue is by using updates/patches. There is no effective way to peruse/defend against this if they stop one programmer 10 more pick up where he left off with a different name. They cant stop what's being developed by the community only what is currently out. And on top of all that they wouldn't be distributing OSX they would be freely giving the ability to emulate the Os on Win/Linux machines.
Im not a mac fan but I would like an alternative to Advid other than Final Cut Pro or the ability to put Final Cut Pro on my pc.
I just don't understand why anyone thinks that if Psystar wins this suit, something good is going to happen for consumers.
1. If you're savvy enough to get your personal copy of OS X running on high-end commodity hardware, and you believe that offers you a better overall cost/benefit situation, you're free to do so today (whatever the EULA, and whatever the relevant copyright law). The information is out there; the tools are out there. If the actual cost/benefit of hacking OS X to run on high-end commodity hardware was so great, more people would be doing it. And if you're into rendering or whatever, and the cost/benefit really is great for you, hire someone to administer a hacked OS X rendering lab inside your company and enjoy. But don't kid yourself into thinking your situation is above the market noise floor.
2. If I write a piece of software (whether it's an OS or anything else), and someone buys a copy, that does not give them the right to modify it and subsequently resell it. Not as something new, but DEFINITELY (and in many ways more importantly) not as something that claims to be identical to what I brought to market. It's the worst of (2 of 3) worlds...it's a *competing product* for which I got some license revenue but have no QA, and which I'm asked to support. And particularly in the case of an OS, when users are potentially going to show up at my door with weird bugs, and they've got some vendor coaching them on how to hide the fact that they're running a hacked OS when they call me, I'm going to incur costs that damage support both for them AND for the rest of my customer base. The thought of that static alone is enough to have me sending for the lawyers.
3. The best competition is rarely (but sometimes) between a bunch of companies who have exactly the same business model and go-to-market strategy. We could talk at length about exactly how Apple vs. Microsoft strategy and execution have led to pros and cons in each ecosystem's set of consumable results, but the inescapable fact is that the differences are real. And the bare fact that there are differences is very, very good for consumers as a group, whether or not those differences happen to benefit you or I individually.
4. Microsoft has a product that matches the integrated solution philosophy that Apple applies to the Mac...it's called xbox. They spent so much money developing that platform, the cost/benefit tipping point didn't happen for them until Halo 3 took off. So let's say I start selling commodity hardware bundles configured with some hypothetical hacked OS-xbox, with the implicit promise that Microsoft would (or explicit argument that they should) support you if/when my hack stops working, even though Microsoft already has their hands full supporting configurations they actually test. Explain to me why I should profit from that behavior at Microsoft's expense.
wow engadget is seriously full of apple hater and seriously makes the Windows community look bad. Way to be close minded guys. You people are all against Apple just because it's Apple. You guys are not trying to understand the full legal issue. The problem here is Psystar presenting a red herring to the real case, which is the alteration of the OS X code. By arguing that they, as consumer of the software, have legal rights to distribute the OS is crap. In reality they are selling back an altered version of the OS (the work-around to Apple hardware detection), which is illegal. That's like plagiarism: modify someone else's work and presenting it as your own.
I seriously can't stand this bias crap. You people are just as horribly zealous as Apple fanboys. But what do I know. Continue being part of some mindless drones. Whatever.
Actually I hate Windows, and strongly prefer Apple. I just like my freedom more.
Dale, what matters to me is that the EULA terms are overly restrictive, and possibly illegal, and trying to enforce a copyright beyond that which you have rights is also overly restrictive, and probably illegal. It just happens to be that Apple is the company doing the restricting. My dislike for the practice has nothing to do with Apple.
Can't stand this bias crap. You guys are all against Apple just because it's Apple, you're not trying to understand the real case here. This complaint is only a red herring to the real issue. Psystar is arguing they have the right to distribute the software because they are consumers of the product, which is bull crap. This problem in actuality is Psystar modifying the code of OS X and reselling it, which is illegal. It's like plagiarism: changing the work of someone else's and presenting it as your own. But of course, the Apple haters here can't get past their biasm to understand the issue. Have fun hating and being close-minded.
dang browser and the messaging system, way to whack up my post.
They're not modifying the code. They're adding a layer to allow it to function on their system. In principle it's no different than a mfr's hardware driver.
Interesting how Mac is ok with those other companies that buy their hardware and software to modify them (like making a tablet mac). I suppose the law for modifying hardware and reselling it is very different than software.
The fact that no one "owns" software always rubs me way wrong. Especially consider how much I pay for it!!!
Of the thoughts that come to mind when reading the comments, the prevalent one is that I never understood why people had such a big problem with "licensing vs. ownership" when it comes to software. If I want to go out and buy a Leopard disc today, I'd spend around 130 dollars. There is no way I deserve to "own" the software for that amount.
To be clear on this one, I mean the following: If I wanted a new house, I'd have to pay for the construction of that house. I then own that house. Think of the millions spent on salaries for the man-hours required for Research, Development, Quality Assurance Testing, Printing, Shipping, Deployment - the list goes on and on. Only Apple has a right to truly claim ownership over the software, as only Apple spent the actual cost of the construction of that software.
Yes, you pay money for it, and yes, that helps Apple recoup - then profit from - the money spent on construction. Sure. But, to reach back to the house analogy, if you built an apartment building, you'd be renting out the apartments; that is, you'd be licensing (leasing) the apartment spaces to recoup - then profit from - the amount spent on the construction of that building. But your tenants don't suddenly own that apartment; they're licensees. You don't often hear tenants whining about this online, because they understand the nature of their purchases.
If you really wanted to own your operating system, download a Linux distro, and contribute to the community somehow - make a donation, aid with development, or offer support on the forums. If you decide that a closed source OS is better suited to your needs, that's your right to choose what's best for your computing experience; but, you should at least be mature enough to understand the nature of your purchase.
Devon, to demonstrate the absurdity of your analogy, let's actually make it a 1:1 relationship. If I came and used a gigantic modified Star Trek food replicator and copied your house exactly, hauled it away to my own lot, and never so much as parked out front of your place, THAT would be the corollary. You shouldn't even get to charge me $1.30 to do that.
So what you're saying is that in order to demonstrate your perceived absurdity of an analogy which used real world economic principles, you're using a device from a science fiction franchise, that didn't even exist within that franchise, because you just made up your own fantasy device in an already fantasy universe?
THAT is your corollary. That's your 1:1 relationship. Wow.
Well, to bring it back to real world terms, there are already exact replications of houses all over the (real) world; for example, the McMansion phenomenon in the United States. If you buy a McMansion and choose to live in it, you still have to pay for your copy of that house; albeit not as much, as you don't have to pay an architect to design the house before it is built.
Although it is technically a duplicate, it is still something which costs more than one dollar and thirty cents. And, hey - just like there are open source OSes, if you think that paying for a duplicate house is unjust, there are plenty of open source housing solutions out there for you: housing projects, trailer parks, homeless shelters, the wilderness, cardboard boxes... there's a wide gradient of options at your disposal.
@ Devon "If I want to go out and buy a Leopard disc today, I'd spend around 130 dollars. There is no way I deserve to "own" the software for that amount."
Of course you do, since Apple was willing to sell it to you at that price (you admitted as much when you said "buy"). Why is it the consumers' fault that Apple sold a product at a price lower than it could charge?
"Only Apple has a right to truly claim ownership over the software, as only Apple spent the actual cost of the construction of that software."
Very true. But Apple doesn't have a claim of ownership over something it willingly sold to me, the Leopard disc. Any attempt to control the disc after they sold it is void.
"But, to reach back to the house analogy, if you built an apartment building, you'd be renting out the apartments; that is, you'd be licensing (leasing) the apartment spaces to recoup - then profit from - the amount spent on the construction of that building"
This is so ricockulous I don't even know where to begin. I guess I'll stick with the obvious... I didn't realize you were able to pick up apartments and carry them around in your backpack. Apartments are real property, Leopard discs are personal property. The laws of real property and personal property are fundamentally different because the properties themselves are fundamentally different.
"You don't often hear tenants whining about this online, because they understand the nature of their purchases."
Exactly "they understand the nature of their purchases." But when it comes to personal property, the normal, and reasonable, understanding of a purchase is that it is an outright sale, not a license.
Mikey, the part you don't understand about what I'm saying is that you are referring to the Leopard disc. The physical item that contains the software. And you're right, you own that. You bought and paid for that disc, you can carry it around in your pocket.
But I'm not talking about building a disc - I'm referring to building software. You don't buy the software; just like you said yourself - you buy the disc. The physical container of the software. But in doing so, you are also purchasing a license for the software.
Ultimately, what everybody is hung up on is the fact that they don't like how a company chose to exercise its rights. Apple can phrase its EULA and protect its software the way they're doing because that's their right. The same way we can choose to bitch and moan about how they do so online, because we have a right to free speech, regardless of whether or not everyone agrees with it.
I'm not defending Apple, and I'm not saying what they're doing is correct, or even what I, as a person who has developed software for a living, would do; I'm just trying to explain that Apple is not this great Satan that invented this particular business model with the intention of screwing over customers. They're just a company, exercising their rights; regardless of whether or not everyone agrees with it.
How is this different that Dell, for instance, restricting you from reinstalling Windows XP, for example, (with your OEM reinstall disk) on a computer other than the one you bought it with. Please don't reply in an arrogant manner, I am sincerely wanting an answer.
@ Alex
Accepting an illegal license doesn't make it any more legal. In Darknerd's example of Apple requiring your first born to install OSX, there is surely some MacHead somewhere who would agree to such a term, but it would still be completely illegal and void.