Posted on 12/15/2009 11:16:26 PM PST by Swordmaker
Both. Judge Alsup is considered an expert on Copyright law.
Apple at least had full retail licenses of OS X for sale. They have “upgrade” versions for much less.
They do? Not true until just recently with the release of Snow Leopard and even then it was a combo deal for people who had skipped an upgrade. That was a first for Apple. The upgrade price for OS X.6 Snow Leopard Snow Leopard was only $29 also a first, because they wanted all Intel Mac owners to upgrade. Because of fairness, Apple decided that owners of the previous version of OS X (Tiger), who had not upgraded to Leopard, would have to buy a Leopard License as well and the combined Box Deal would also include upgrades to iWorks'09 and iLife'09 with OS X.6 Snow Leopard for $169. Prior to that decision all OS X upgrades had been $129 for at least ten years and there were no "full install retail/upgrade install" differences.
Psystar was selling their Open computers with Snow Leopard for the $29 price. Which. Proves. The. Point. They were buying the OS X upgrade and installing it, not the so-called full license, version.
Software should be treated like any other product.
Not because you think it should. If that were the case, what would stop me from buying one copy of Window7, removing the portion that uses the serial number and duping the hell out of it and selling millions of copies for $20 bucks to every Tom, Dick and Sandhu in the world and retiring as Rich and as unethical as Bill Gates?
Ad hominem attacks are certainly informative about people’s character.
Are we a bit sensitive here... :-)
I was happy to find something EFFECTIVE against a smitfraud variant on a work computer today. The tool is an EXE file that sets up an ISO, d/ls updated virus-fighting data files, then burns a bootable Windows 7 CD.
Of course, I’d have liked this even better if the computer had been bootable afterwards...
This particular version of W7 has a nice, sparse Ubuntu look to its desktop, but some of the fit and finish of Mac OS.
Who cares? Macs are for gays.
Did Apple get what it intended to be sold for? No. The LICENSE it sold was for the OS X to be used only on a Macintosh computer, not for the OS X to be used on a Psystar computer. . . that probably would have cost quite a bit more.
Are they just ticked over the non-Apple hardware part, or are they each illegal copies of OSX?
If the copies are installed on a Psystar computer, they are, by definition, infringing copies of OS X... thus illegal.
Not true. The manufacturers would not be licensed by Microsoft to be Original Equipment Manufacturers if they did not bundle Internet Explorer... they would lose their licensing. That is a BIG deal.
Microsoft's practices in this matter got them CONVICTED of monopolistic practices. Don't try to obfuscate the facts, Favor.
Sorry, Chris, but you are wrong.
Judge Alsup directly addressed USC Title 117, 109, in his Summary Judgement decision (PDF Reader required for PC users) and it simply does not apply and came to the conclusion that any attempt by Psystar to use 117 in the context of how they used copying of OS X would be a frivolous attempt at a defense:
A. Reproduction Right and Section 117.There are several reasons why 117 "fair Use" does not apply to Psystar. First of all, Psystar was not merely "an owner"... they were making COPIES which they were selling. In the process of manufacturing their computers they were making at least three copies of OS X Leopard. Secondly, they were making a DERIVATIVE copy of OS X Leopard by modifying the boot loader so that it would boot on their clone... thus violating that section of the law. Thirdly, Psystar was decrypting the encrypted code that Apple had added, and removing the said encryption, to get around the protection that prevented OS X from running on non-Apple hardware, thus violating the Digital Millenium Copyright Act (which was passed a few years after the 1976 Act).According to Apple, Psystar has violated its exclusive right to copy Mac OS X. Psystar admits that it has made copies of Mac OS X and installed those copies on non-Apple computers (Def. Opp. 10) In addition, when Psystar turns on its computers running Mac OS X, another copy of the software is made to the random access memory. Psystar has thus infringed Apple’s reproduction right.
Section 117(a) permits the owner of a copy of a computer program to copy or modify the program for limited purposes without incurring liability for copyright infringement. See Krause v. Titleserv, Inc., 402 F.3d 119, 121 (2nd Cir. 2005). But the question is whether Psystar can rely on Section 117 to escape liability. It cannot. As Apple pointed out, Psystar waived any Section 117 essential step defense when it failed to plead it. Psystar counters that it has not waived Section 117 because that provision is a limitation on a copyright owner’s exclusive rights rather than an affirmative defense. An earlier Ninth Circuit decision stated “Section 117 defines a narrow category of copying that is lawful per se” and “Section 107, by contrast, establishes a defense to an otherwise valid claim of copyright infringement.” Sega Enters. v. Accolade, Inc., 977 F.2d 1510, 1521 (9th Cir. 1992). Since then, the Ninth Circuit has expressly referred to Section 117 as a defense. See Wall Data Inc. v. L.A. County Sheriff’s Dep’t, 447 F.3d 769, 776 (9th Cir. 2006) (referring to Section 117 as an affirmative defense); Asset Mktg. Sys. v. Gagnon, 542 F.3d 748, 754 (9th Cir. 2008) (referring to Section 117 as a defense). As such, this order treats Section 117 as an affirmative defense.
Alternatively, if Section 117 is considered an affirmative defense, then Psystar argues it has pled it in its answer and raised the substance of its Section 117 argument in its interrogatory responses. Neither the answer nor interrogatory responses, however, refer to Section 117. And Psystar has not demonstrated any good cause for its failure to assert the defense after a year of litigation. Also, there has been no showing that its failure to do so will not prejudice Apple. As such, Psystar has waived the defense. At all events, the assertion of Section 117 is so frivolous in the true context of how Psystar has used Mac OS X that a belated attempt to amend the pleadings would not be excused.
Judge Alsup found in his Summary Judgement that customers who purchased an OS X license agreed to the following:
In brief, customers were contractually precluded from utilizing Mac OS X on any computer hardware system that was not an Apple computer system.2. Permitted License Uses and Restrictions.It also restricted redistribution and modifications to the software (id. at ¶ 3) sublicense the Apple Software. Subject to the restrictions setA. Single Use. This license allows you to install, use and run (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 enable another to do so.*** C. You may make one copy of the Apple Software (excluding theBoot ROM code and other Apple firmware that is embedded or otherwise contained in Apple-labeled hardware) in machine-readable form for backup purposes only . . . . Apple Boot ROM code and firmware is provided only for use on Apple-labeled hardware and you many not copy, modify or redistribute the Apple Boot ROM code or firmware, or any portions thereof.*** F. Except as and only to the extent permitted by applicable licensing terms governing use of the Open Sourced Components, or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify or create derivative works of the Apple Software or any part thereof.
3. Transfer. You may not rent, lease, lend, redistribute, or forth below, you may, however make a one-time permanent transfer of all of your license rights to the Apple Software (in its original form as provided by Apple) to another party, provided that: (a) the transfer must include all of the Apple Software, including all its component parts (excluding Apple Boot ROM code and firmware), original media, printed materials and this License; (b) you do not retain any copies of the Apple Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Apple Software reads and agrees to accept the terms and conditions of this License. You may not rent, lease, redistribute, sublicense or transfer any Apple Software that has been modified or replaced under Section 2D above.
Psystar was a customer, a purchaser of OS X... therefore, they had agreed to the terms of the contract and were in violation of that contract as well in egregious violation of Apple's copyrights.
Shame on both parties.
No, TChris, the shame here falls only on Psystar and their illegal activities.
If you buy that book, do you also buy the rights to the ideas, the format, the layout, the pictures, the typeface, etc. Can you then reset the pages, print up a new edition and sell as many copies as you want to the general public? The book analogous to the computer, the OS is analogous to the words and pictures on the pages.
You can sell the book, burn it, lend it, give it away, tear it up, cherish it, draw in crayon in the margins, but you don't own the ideas or the rights to do what you want with impunity with what's in that book or claim the words in it as your own. Nor can you make a copy of it to give to your friends.
Essentially, although you do OWN the book, it is a license to read what the publisher has placed in the generic holder...
If you buy that book, do you also buy the rights to the ideas, the format, the layout, the pictures, the typeface, etc. Can you then reset the pages, print up a new edition and sell as many copies as you want to the general public? The book analogous to the computer, the OS is analogous to the words and pictures on the pages.
You can sell the book, burn it, lend it, give it away, tear it up, cherish it, draw in crayon in the margins, but you don't own the ideas or the rights to do what you want with impunity with what's in that book or claim the words in it as your own. Nor can you make a copy of it to give to your friends.
Essentially, although you do OWN the book, it is a license to read what the publisher has placed in the generic holder...
Yes, it is. They don't have to sell it to you at all. There is nothing in the law that forces them to sell anything to you. In fact, they are NOT selling it to you. They are essentially selling you the right to right to USE something they own with certain limits they set.
The government does not have the right to let me worship God... that is a Right reserved to me. But I do not have the RIGHT to take something that belongs to my neighbor either. My neighbor does have the right to let me use something that he owns and retains ownership to... that's his right as well. I thank him by paying him for the privilege... or let him use something that I own in exchange.
Oh bull.
“Are we a bit sensitive here... :-)”
I don’t take well to be accused of being a socialist for not supporting perversion of copyright.
You want to have a debate about the merits, fine.
Ah, Judge Alsup found that in some instances Psystar was doing just exactly this and claiming "fair use," andk although Psystar did not directly plead "Fair Use," they were, in fact, claiming it as a back-door defense as a "necessary step in installing it on their Open Computers. TChris was implying that Psystar's entire business plan was based on Chapter 117's Fair Use exemptions for Copyright infringement. I was disagreeing.
Which is an incorrect distinction.
OK, you make the distinction... I've been reading the distinctions the courts have been making. Have you? Licenses are not sales and are not subject to "first sale" restrictions. None-the-less, Apple allows a "first sale" of the license to take place for each subsequent license holder so long as the previous licensee destroys any copies he has before passing on his license.
“No and No.”
What was your point, then?
“Ah, Judge Alsup found that in some instances Psystar was doing just exactly this and claiming “fair use,”
Then, if they were doing THAT, fine. Fine them.
That wasn’t the primary complaint from Apple.
“Licenses are not sales and are not subject to “first sale” restrictions. “
They are sales and they should be. Software should be treated no differently than books.
Yeah, just last week I was using my Mac to design a multi-megaton nuclear device and I just found out that it's against the SLA... my bad. I guess I will have to get a Windows machine for that use... rats.
Of course, my nuclear device is merely a new, fairly heavy nuclear iPhone battery, but I'm working on getting it a bit lighter. But it should last at least a millenium! Right now it's a bitch to carry around and you should see what happens when I try to go through the Airport security check points...
“Both. Judge Alsup is considered an expert on Copyright law.”
By whom?
“Not true until just recently with the release of Snow Leopard and even then it was a combo deal for people who had skipped an upgrade. That was a first for Apple.”
They’ve offered that for a while. The non-$29 copies.
Mac is a brand name... so is Vaio... and HP... a company uses its brand name to differentiate its products within the market it competesin.
The MARKET is an economic Market, a specific definition in a technical field of economics and/or advertising. The Market in this instance is both: the Personal Computer Market. C'mon, You are NOT AN IDIOT. Don't pretend to be one although you are doing an excellent job of convincing us that you are.
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