Psystar Back To A First Sale Defense Against Apple: Software Was Legally Purchased...

from the and-we-can-do-what-we-want-with-it dept

Wed, Jan 14th 2009 5:40pm — Mike Masnick

Psystar tried and failed to pin an antitrust case on Apple in its fight over whether or not Psystar can install MacOS on non-Apple hardware. Now, it appears that the company is back to where we thought it would originally focus: on whether or not a software license agreement can preclude the first sale doctrine that allows you to resell software you legally purchased. It's still a long shot -- but a few recent rulings suggest the courts are at least more open to these discussions. Of course, if Psystar wins, it could severely limit the power of end user license agreements (EULAs) that software companies often use to limit uses of software.

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Filed Under: copyright, eula, first sale, macos
Companies: apple, psystar

25 Comments

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Easily Amused, 14 Jan 2009 @ 6:51pm

God I hope they win...
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Michael Long, 14 Jan 2009 @ 7:09pm

Resale
If they want to resell the original DVD and the box it came in then "first sale" applies. Feel free.

Installing a modified version of the software onto a machine and then reselling both isn't the same thing at all.
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Rekrul, 14 Jan 2009 @ 7:09pm

God I hope they win...

Seconded.
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DS78, 14 Jan 2009 @ 7:17pm

EULAs
I'll go ahead throw this out there:

Nobody reads EULAs!

Proceed...
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Scott Gardner (profile), 14 Jan 2009 @ 7:31pm

Does this really matter?
How important is the court's interpretation of the first sale doctrine in this particular case, anyway? It seems to me that Apple's problem isn't with Psystar's reselling of legally-purchased copies of OS X, it's with the fact that Psystar violated the EULA by modifying the software and installing it on non-Apple computers (among other violations).

In fact, the OS X EULA specifically allows for transferring ownership of the software to another party, so Apple's already addressed the first-sale issue and specifically said that they're okay with it.

What Psystar's doing isn't the same as buying a CD and reselling it on eBay - it's more like buying a CD, re-mixing all the tracks, adding their own beats and changing the lyrics, and *then* selling it on eBay.
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Anonymous Coward, 14 Jan 2009 @ 9:06pm

Re: Does this really matter?
And I've got no problem with that, either.
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Jeff, 14 Jan 2009 @ 10:38pm

Macs will soon learn...
that PCs are awesome because you can build your system to your likings...
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Frosty840, 14 Jan 2009 @ 10:58pm

How does the whole "first sale doctrine" work with these new direct download services which pretty much specifically prevent you from reselling software you've legally purchased?
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Spectere, 15 Jan 2009 @ 12:48am

Re: Does this really matter?
It seems to me that Apple's problem isn't with Psystar's reselling of legally-purchased copies of OS X, it's with the fact that Psystar violated the EULA by modifying the software and installing it on non-Apple computers (among other violations).

Nope. Psystar's claim to fame is that it can run Mac OS X without modification.

The point that's being contested in this case is simply that Apple's EULA prohibits third-party installations on their operating systems.
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diemac, 15 Jan 2009 @ 5:37am

Re: Macs will soon learn...
good call! Funny how apple tricks people into thinking they are hip individuals becuase they use mac products, but in reality your choice is A or B. I teach kids how to build PCs in a highschool, and never see two the same. MAC is no fun, unless you are technically ignorant and don't really want to know much about the tools you use. I guess alot of people fit this bill though....
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Killer_Tofu (profile), 15 Jan 2009 @ 5:43am

Re:
That is what I was thinking. This would be an awesome kick in the nuts to the Steam people. I would love to see it happen. They would then have to allow you to transfer your game to other people (this should be allowed already). Now that would be nice. Another step towards the removal of their DRM crap.
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Gabriel, 15 Jan 2009 @ 6:03am

omitted fact: Psystar has their own EULA
http://news.softpedia.com/news/Breaking-EULA-Hater-Psystar-Has-Its-Own-Agreement-99350.shtml

It seems highly unlikely that Psystar would really want to fight against all EULAs, when they have one of their own.

I'd have expected Techdirt to include this rather significant information in their opinion on the subject.

For more detailed and superior analysis, you can read more here: http://news.worldofapple.com/archives/2009/01/14/psystar-files-its-reply-to-apples-response-to-psyst ars-motion-for-leave-to-amend-its-counterclaim/
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Anonymous Coward, 15 Jan 2009 @ 7:14am

Re: Resale
I'm pretty sure they modify the computer, not the software. They rig the PC so the software *thinks* its Apple.
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Anonymous Coward, 15 Jan 2009 @ 7:15am

Re: Does this really matter?
They mod the PC, not the software.
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Anonymous Coward, 15 Jan 2009 @ 7:26am

A EULA shouldn't restrict how you use it, it should just restrict what instances you can receive support for the product. If you're using the product outside of its intended means, don't expect to get support if it doesn't work right. EULAs are ridiculous and anyone who supports them is retarded. I don't read them, nor follow them. For all intents and purposes, they don't exist to me.
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Esahc (profile), 15 Jan 2009 @ 7:42am

Re:
I think you are correct and I believe the majority of the people in this country would agree with you.
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Anonymous Coward, 15 Jan 2009 @ 7:48am

They're also claiming that OS X was never copyrighted by Apple....that they never filed the necessary paperwork.

Hate to break it to them, but *anyone* even remotely aware of copyright knows that all countries following the Berne Convention have automatic copyright.

No paperwork necessary.

It seems our "champions" of OS X on vanilla PC hardware are completely ignorant. How lucky can we get...?
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Scott Gardner (profile), 15 Jan 2009 @ 7:54am

An easier way?
If Psystar is truly making no changes at all to the OS X software and taking care of all the compatibility issues in the hardware, then couldn't they have avoided almost all of their legal hassles by simply not shipping their computers with OS X?

Psystar could then simply sell their computers with no software included or installed, and leave it up to the buyer to purchase and install OS. Then at least it would be the end user that's violating Apple's EULA and not Psystar.
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Washii, 15 Jan 2009 @ 9:23am

Re:
>Hate to break it to them, but *anyone* even remotely aware of copyright knows that all countries following the Berne Convention have automatic copyright.

True. But what they didn't do was file the proper paperwork in the allowed time period for more damages! So, you do have to file for certain copyright protection in a way.
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Yakko Warner, 15 Jan 2009 @ 9:59am

Re:
Short answer: It doesn't.

You can't resell it, borrow it, lend it, or in many circumstances even share it with members of your own household.

That's the "convenience" of downloadable content for you...
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Anonymous Coward, 15 Jan 2009 @ 1:43pm

Re: Does this really matter?
What Psystar's doing isn't the same as buying a CD and reselling it on eBay - it's more like buying a CD, re-mixing all the tracks, adding their own beats and changing the lyrics, and *then* selling it on eBay.
Or buying a book, marking it up, and then reselling it. Oh, the horror!
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Anonymous Coward, 15 Jan 2009 @ 1:56pm

Re: omitted fact: Psystar has their own EULA
It seems highly unlikely that Psystar would really want to fight against all EULAs, when they have one of their own.
Who claimed that they do? That's a typical strawman attack. Psystar is arguing that EULAs cannot override the first sale doctrine. Their own EULA makes no such attempt.

I'd have expected Techdirt to include this rather significant information in their opinion on the subject.
Now why would you expect Techdirt to include your strawman?

For more detailed and superior analysis, you can read more here: http://news.worldofapple.com/...
Yeah, like an Apple fanboi site is going to be real objective. You sound like you work for them.
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Anonymous Coward, 15 Jan 2009 @ 2:00pm

Re: An easier way?
If Psystar is truly making no changes at all to the OS X software and taking care of all the compatibility issues in the hardware, then couldn't they have avoided almost all of their legal hassles by simply not shipping their computers with OS X?
Because most people don't have the skill to do the installation on non-Apple hardware themselves. That's part of the service that Psystar's selling.
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Anonymous Coward, 15 Jan 2009 @ 2:06pm

Re: Resale
If they want to resell the original DVD and the box it came in then "first sale" applies. Feel free. Installing a modified version of the software onto a machine and then reselling both isn't the same thing at all.

I bought a used textbook the other day that had some notes scribbled in it. So you think that sale of a "modified" book should have been illegal, huh? Man, you industry shills can be really extreme.
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Scott Gardner (profile), 15 Jan 2009 @ 4:13pm

What Skill?
But if Psystar's really figured out a hardware-based method of making their computers appear to be Apple hardware, so that their computers will work with an unmodified copy of OS X, then how hard could the actual software installation be for the customer? Shouldn't it just be like installing OS X on a Mac? Or are there still hoops that you have to jump through during the installation to make it work?

I'm only bringing this up because letting the customer buy and install OS X instead of shipping the computers with it preloaded would solve almost all of Psystar's legal problems overnight, at least the ones coming from OS X's EULA.

If Psystar stops preloading OS X, and instead just sells a computer that "happens to work perfectly with OS X", should the customer decide to install it, I don't see how any of Apple's current legal claims against Psystar would still be applicable. Instead, Apple would have to go after the individual end-users, which would be a lot more difficult and unpopular.
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