Psystar Loses Big To Apple
from the and-so-it-goes dept
When Psystar first started selling PCs with Apple OS's installed on them, we knew there would be a lawsuit -- though it took a bit more time than we expected. Originally, Psystar tried to claim that Apple was violating antitrust law, which seemed like a wasted path for exploration -- and, indeed, a court rejected that claim. Then Psystar went back to more reasonable defenses... or so we thought.The court hearing the case didn't seem to think any of Psystar's main lines of defense had any validity at all and granted summary judgment to Apple on all of the major points, saying that a trial wasn't even necessary. The "fair use" claim was already weak, and the judge noted that Psystar didn't even try to discuss any of the four factors generally used in determining fair use. The two (I thought) stronger claims were that (a) the right of first sale applied, and once Psystar purchased OSX legally, it could resell it, provided it was only installed on that one computer, and (b) that Apple went too far in its EULA terms, which demanded that OS X could only work on a Mac. Unfortunately, the judge didn't agree to either one, though I find the judge's reasoning perplexing and hardly convincing.
On the issue of first sale, here's what the ruling said:
The copies at issue here were not lawfully manufactured with the authorization of the copyright owner. As stated, Psystar made an unauthorized copy of Mac OS X from a Mac mini that was placed onto an "imaging station" and then used a "master copy" to make many more unauthorized copies that were installed on individual Psystar computers. The first-sale defense does not apply to those unauthorized copies.Perhaps I'm missing something here, because earlier reports had suggested that Psystar legally purchased each copy of OS X and then installed the legally purchased copy on the new machine (which it then included with the sold machine). But from the description above, it sounds like part of the problem is that a single "master copy" was used to make multiple installations. Of course, that raises a whole host of separate issues. If Psystar legally purchased a separate license for each one, but still used a single master copy, is that really infringing? After all, the code is identical, and it seems positively ridiculous to say that even though you bought, say, 20 licenses, you can't just use one master copy to install 20 times. It seems like this could use additional clarification. Because, the other way one could interpret this is that there is no right of first sale if the company says a copy is unauthorized -- which would have troubling implications.
On the EULA front, the court again basically just takes Apple's position, and insists it did nothing wrong. I'm not surprised by the outcome at all, but I would have expected at least a more complete response to the First Sale doctrine rights issues. Even ignoring that a "copy" was being made -- with the physical copy, it really is a matter of first sale. The company is selling something it legally purchased.
Psystar will likely appeal, though I still have little faith that will get anywhere.
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Filed Under: copyright, eula, first sale, mac os
Companies: apple, psystar
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No right of first sale.
For years we ignored shrinkwrap and clicky EULAs, because there were so laughable and unenforceable that they didn't need to be challenged.
Except that they did. Because now the political clout and the technology exists to enforce these documents, and they didn't get any less stupid as time went by.
Now we've got online activation and lobbying like never before, and we can't use a piece of software other than how we're asked. Everyone's doing it, and half of them change the rules of the game as you're playing it, so it's hard to know who to trust and who to avoid until it's too late.
It's a brave new world, and we sat back and lazily made it.
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Re: No right of first sale.
I'd best take the copy of Mac OSX off my compaq laptop then...
EULAs are no more enforceable today on a customer than they were several years ago. You just have to know what you're doing, and how to hide it.
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Re: Re: No right of first sale.
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Re: Re: No right of first sale.
You seem to be contradicting yourself. Why would you need to hide it if EULA's really weren't enforceable?
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Re: Re: No right of first sale.
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Re: Re: Re: No right of first sale.
You seem to have missed the recent news of M$ cutting off around a million XBox owners for modding the software on their boxes.
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Court Order
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Master copy vs. individual copies
The fact is, identical bits may not be identical under the law. Provenance - how the bits got there - matters. It may sound silly, it may be a distinction that will prove impossible to maintain in any meaningful way - but right now, it's there, and given that distinction, it's not surprising this case came out the way it did.
-- Jerry
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Re: Master copy vs. individual copies
except that disk imaging is how every PC manufacturer (apple included) ships pre-installed software. disk imaging is also a common practice in the IT departments of large corporations. if imaging is illegal in this case, what does that say for the practice elsewhere? if the practice is legal elsewhere, why is it illegal in this case?
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Re: Re: Master copy vs. individual copies
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Re: Re: Re: Master copy vs. individual copies
It's not a question of whether they should be able to "ask" you. Of course they should be able to ask. The question is whether such an agreement should then be legally enforceable. The court said yes.
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Re: Re: Master copy vs. individual copies
Psystar may have included a copy of OS X with each clone, but what they installed on the clones was not OS X, but a modified operating system that infringed on Apple's OS X
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Re: Re: Re: Master copy vs. individual copies
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Re: Re: Re: Re: Master copy vs. individual copies
In any case, OSX is the small player, not the monopoly. If you don't like the terms of use that you have to sign up to in order to use it, choose another o/s and move along.
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Re: Re: Re: Re: Re: Master copy vs. individual copies
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Re: Re: Re: Re: Re: Re: Master copy vs. individual copies
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Re: Re: Re: Re: Re: Re: Re: Master copy vs. individual copies
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Re: Re: Re: Master copy vs. individual copies
Psystar added code to make OS X interoperable with the independently created machine level computer programs on their hardware. Under the DMCA, that is legitimate reverse engineering for interoperability.
TECHNICALLY THE PROBLEM: They also removed kernel code from OS X, which they can't legally do.
If instead they had found a way to keep that code and disable the same at boot, they would have been in A LOT better position to argue the rest of the case.
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The judge is correct, their master copy thing is dangerous, in part because there is no clear indication that every computer that leaves their factory would have a unique operating system.
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Re:
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Re: Re:
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Re:
Umm, each computer left their factory with a separate Apple license but the OS was the same. Who says they're supposed to each be "unique"? That certainly isn't the case with other computers so why should Psystar be different?
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How is this going to effect PC manufacturers?
I doubt M$ would ever push this point but they could.
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Re: How is this going to effect PC manufacturers?
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Re: Re: How is this going to effect PC manufacturers?
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Re: Re: Re: How is this going to effect PC manufacturers?
This is talking about setting up a master disk image and then doing a direct copy of the image to the new machine which is much faster especially if you've already pre-installed and configured applications.
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Re: How is this going to effect PC manufacturers?
Why not? They can use it to reduce competition between PC sellers in the market place by allowing only their preferred "partners" to do it but threatening to sue anyone else. That would make it hard for anyone to compete with M$'s partners on a large scale. That sounds like exactly the kind of thing M$ would do if they could get away with it legally and this judge just gave them that ability.
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Re: Re: How is this going to effect PC manufacturers?
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It's not going to effect PC manufacturers...
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Re: It's not going to effect PC manufacturers...
So? Do they have separate laws?
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Re: Re: It's not going to effect PC manufacturers...
More importantly, hardware and software business models are different so the go-to-market strategies will be different.
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Re: Re: Re: It's not going to effect PC manufacturers...
I don't know where you got the idea that Microsoft and Apple are covered by different laws but it's wrong. Both of them sell both hardware and software and the law doesn't say "this set of rules covers you if you sell mostly software and this set covers you if you sell mostly hardware". Maybe you ought to lay off the cheese sauce for a while.
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The right of sale gives us the right to sell our physical media, even if the content is copyrighted. It does not give any right to transfer licenses to third party.
That's what Psystar was doing. It was installing a single copy of OSX on multiple computers, which as the court pointed out, was a violation of law. The mere fact that Psystar also bought licenses for each installation is irrelevant to the first sale doctrine.
In the same way, I don't have the right to sell copies I burned of a DVD even though I bought a separate license. Maybe under contract law that might make sense, but it has nothing to do with the first sale doctrine.
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Re: Smackdown!
As someone IN the industy, I can tell you that Psystar was doing it the same way Dell, HP, and probably every other vendor does it.
You create an image and you burn the image to every computer (usually one image per model configuration).
The OS is the same. It's the license that makes it legal. The physical media is irrelevant.
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Re: Re: Smackdown!
As someone IN the industy, I can tell you that Psystar was doing it the same way Dell, HP, and probably every other vendor does it."
Spoken by someone who doesn't have a clue what the real issue is.
The other vendors sell pre-installed versions of Windows. Microsoft has chosen to support this distribution model because that is their core business - selling software. Apple has chosen not to support this model because their core business is selling hardware, not software. Apple's position has NOTHING to do with how installs are typically done, it is all about supporting their hardware-centric business model. If Psystar (or anyone else) gets away with distributing OSX to non-Mac PCs, then Apple will lose a big chunk of the differentiation associated with Macs. Apple would need a new business model. Of course Apple will use whatever legal tools they can to stop Psystar.
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Re: Re: Re: Smackdown!
The real issue was the modifications. Unfortunately, some very important matters of fact and law related to the modifications were not tried here.
However, I think it's probably due to a crappy defense. Usually, if you give a judge the tools he needs to determine something should be tried, he will want it to be tried. In this case, I can't see where the defense even understood the strengths of their own case. They certainly didn't bring them to bear.
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Re: Re: Re: Re: Smackdown!
This statement makes the rest of your post irrelevant because it's bollocks. Apple owns the copyright on their software and therefore can decide on whatever distribution model they like. Any company in any industry can decide to use a distribution model that varies from the norm. Sometimes it's even called innovation.
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Re: Re: Re: Re: Re: Smackdown!
Talk about bollocks. It's well establish that you cannot keep a buyer from reselling something just because it's copyrighted. Once they've bought it they can sell it on if they want to. It's called the doctrine of first sale, which you seem to be trying to pretend doesn't exist.
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Re: Re: Smackdown!
As someone IN the industy, I can tell you that Psystar was doing it the same way Dell, HP, and probably every other vendor does it."
Spoken by someone who doesn't have a clue what the real issue is.
The other vendors sell pre-installed versions of Windows. Microsoft has chosen to support this distribution model because that is their core business - selling software. Apple has chosen not to support this model because their core business is selling hardware, not software. Apple's position has NOTHING to do with how installs are typically done, it is all about supporting their hardware-centric business model. If Psystar (or anyone else) gets away with distributing OSX to non-Mac PCs, then Apple will lose a big chunk of the differentiation associated with Macs. Apple would need a new business model. Of course Apple will use whatever legal tools they can to stop Psystar.
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Re: Re: Smackdown!
If I were Psystar, I would have sold the hardware and OS as separate line items, along with the installation fee and shipped the machine with the install disk.
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Re:
So, you're saying Mike was wrong when he wrote
Court Once Again Confirms Right Of First Sale For Software: You Own It, Not License It?
Mike cites some references in that story. Why don't you do the same if you want to refute it?
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Re:
So, the companies that are licensed to manufacture copies of DVDs are illegal, huh? Just where do you think all those movies come from, anyway? Do you think they remake the whole movie for each DVD? Well, I've got news for you, they don't. The studios don't even make the copies themselves, they license others to do so it's perfectly legal, despite what you say.
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Duh!!
No, because the DVD companies you mention are licensed to make these copies. Psystar is not licensed to do anything with OSX. Is this really that hard to understand?
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Re: Duh!!
Maybe you should have made that reply to Ima Fish because she was the one arguing otherwise. Or is it really that hard for you to follow a thread?
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Re: Duh!!
Maybe you should read the story. Psystar was buying licenses.
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Can Psystar Cure the Defect by Individually Loading?
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While a bit troubling...
That muddies the case big time as to the issues, because they simply DIDN'T buy a copy of OSX for each computer they sold.
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Re: While a bit troubling...
Are you making that up or do you have a source to cite?
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Re: While a bit troubling...
If Psystar bought an upgrade disc, hacked and installed it, and sold it, that most likely isn't a valid/legal copy anyway.
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Ilegal Copying into RAM
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addendum
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Another interesting aspect of the judgement
Psystar infringed Apple's exclusive right to create derivative works of Mac OS X. It did this by replacing original files in Mac OS X with unauthorized software files. Specifically, it made three modifications: (1) replacing the Mac OS X bootloader with a different bootloader to enable an unauthorized copy of Mac OS X to run on Psystar's computers; (2) disabling and removing Apple kernel extension files; and (3) adding non-Apple kernel extensions.
http://www.geek.com/articles/apple/a-court-massacre-psystar-infringed-on-apples-c opyrights-says-judge-20091115/
Overall, I understand Apple is just trying to maintain the "Apple Experience". Users could buy a psystar box and then start complaining that 'man, osx is so buggy" rather than, "wow -this is a really poor port over onto this hardware".
But i think a more reasonable response would be to mandate a notice saying "This hardware is not supported by OSX.".
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From Experience...
ALL THIS SAID: Far as I'm aware, MS allows businesses to do it because, as it's been mentioned, MS sells software. So in theory, Apple *can* get all uppity with anyone who does something similar. EXCEPT for two things: First, the customer has essentially paid for 1) A Computer. 2) A Mac OS. 3) Technician install of OS. I see no arguement that could be made against this sequence of events.
Now, the last point to be made is that apparently Psystar modified the kernel of the Mac OS? ... This I doubt, because OSX will actually run on Intel-architecture now. If they're trying to get it to work on AMD machines, I'd be impressed at their determination... IF, however, they did modify the code, then they're in legal trouble.
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Re: From Experience...
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your factually incorrect on this one, Mike
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Re: your factually incorrect on this one, Mike
That's interesting. I wonder why they would limit it to 5. Anyway, citation, please.
they don't sell the original OSX they bought either.
Do you mean they apply Apple supplied updates and patches before they mod it? So, would it also be illegal for a person to sell a Mac with a patched or updated OSX, since it wouldn't be "the original OSX they bought either"?
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Re: Re: your factually incorrect on this one, Mike
http://www.groklaw.net/staticpages/index.php?page=Psystar
And good discussion of the issue here:
http://groklaw.net/article.php?story=2009090111072988
"A first sale does not, however, exhaust other rights, such as the copyright holder’s right to prohibit copying of the copy he sells.... For example, the first sale doctrine permits a consumer who buys a lawfully made DVD copy of “Gone With the Wind” to resell the copy, but not to duplicate the copy."
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Re: Re: Re: your factually incorrect on this one, Mike
That's legal by another doctrine. Not first sale, but fair use.
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Re: Re: Re: Re: your factually incorrect on this one, Mike
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Re: Re: Re: Re: Re: your factually incorrect on this one, Mike
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.
Those are just *some* examples, not an all-inclusive list. The US Supreme Court, in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), ruled that personal home recording of copyrighted video is legal under fair use.
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Re: your factually incorrect on this one, Mike
Bull. Psystar claims to have bought a copy for every one they sold. That was the whole basis of their defense. I notice you didn't respond with a citation for your claim of 5 to 1 either which leads me to conclude that you're making stuff up.
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Cold dose of Reality
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