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dvdhsu
Nov 11, 2009, 07:39 PM
From Engadget (http://www.engadget.com/2009/11/11/psystar-founders-claim-they-cracked-os-x-hackintosh-scene-is-a/#continued).

Okay, so we're reading this puff piece in the Miami New Times about would-be Mac cloner Psystar, and while we're somewhat willing to dismiss author Tim Elfrink's various mischaracterizations of the law and what Psystar is actually doing as just laziness and / or ignorance, there's a quote here from Psystar founder Rudy Pedraza that simply leaps off the page:
Rudy scoffs at the idea he borrowed from the Hackintosh scene. "The first thing you have to do is unlearn everything you've read online about how to make this work," Rudy says, "because it's all wrong."




"Robert cracked the code behind Apple Computer's elegant operating system, OS X." Yeah.

"[Apple] filed a 35-page lawsuit in California claiming Psystar was selling "unauthorized" versions of OS X." Why is unauthorized in quotes? That's exactly what Apple claims.

"As with Microsoft, which lost a multimillion-dollar antitrust decision in Europe in 2004, Apple is protecting an illegal monopoly, Psystar claims." Psystar has already lost this part of its case in California, and in the new Florida case Psystar only claims Apple has a monopoly on "premium personal computers," which pretty much invalidates the pricing argument and has driven the company to sell more expensive machines.
"Robert says he found his own way around Apple's built-in security devices. The breakthrough meant that, among other things, the cheap machines were virtually immune to viruses and hackers." This is simply not true. OS X is vulnerable to hackers in its shipping form, and hacking EFI doesn't change that.

"Psystar pays full price - $29 - for each copy of OS that it installs on its computers." $29 is the Snow Leopard upgrade price. The full price is $169 with iLife and iWork.

"What's more, Apple holds that consumers who purchase an operating system don't actually own the software...It's a dubious-sounding arrangement that courts, at least so far, have upheld." It's not dubious to the courts, who've been upholding EULAs for over a decade across the country. (And striking some down, to be fair.)

"Pretty much anyone with basic computer knowledge can make a cloned Mac for just the cost of a full tank of gas in an SUV." Actually, anyone can do this for free, without having to pay Psystar.


Now, don't get us wrong -- the personal story of Robert and Rudy Pedraza laid out in the article is moving stuff, but when the chips are down, we're picking the hacker and enthusiast community over a couple guys trying to make a buck selling unlicensed software, and that Hackintosh quote struck us as impossibly arrogant and extremely foolish. The OSx86 community is already wary of Psystar, and we're guessing no one's going to rush forward the next time these jokers need some help.

Oh dear. I need to get a Pystar now! No viruses, no worms, that beautiful case... and not breaking the EULA.

What thoughts do you guys have?

Guiyon
Nov 11, 2009, 07:47 PM
I find it hilarious that people attack Apple and side with Psystar regarding the breaking of Apple's license but throw a fit when they hear of Psystar potentially violating an open source license. You can't have it both ways...

As for the claims, they are pretty much what I've come to expect from Psystar given their antics between the 2nd filing in Florida and the whole Chapter 11 scheme. I like claims 1 and 4 the best; claim 1 is completely useless without some sort of context and, even then, most of what is behind OS X is available as open source and, surprise, has already been 'cracked' by the OSx86 community. The best part is that this statement directly contradicts what Rudy already said under oath. As for claim 4, unless they designed and implemented some sort of zero-impact, god-like hypervisor (in that case, ditch the Hackintosh bit and sell that!) it makes no sense.

dvdhsu
Nov 11, 2009, 07:49 PM
I find it hilarious that people attack Apple and side with Psystar regarding the breaking of Apple's license but throw a fit when Psystar violates an open source license. You can't have it both ways...

Ah, the Apple haters these days. :o

But making claims like that is just stupid.

apfhex
Nov 11, 2009, 08:22 PM
Ugh. I'm all for individuals doing what they want with the software they buy and making Hackintoshes, but what Psystar is doing is just slimy, and they should be stopped.

Byrnes3969
Nov 11, 2009, 09:18 PM
Cheers to Rudy and Robert!

It's about time someone from the Mac "community" tried to find cheaper alternatives to the high priced - low tech hardware that Apple offers!

All you Apple apologists take note of Apple's obscene profits and ask yourself where's the $399 mac?

dvdhsu
Nov 11, 2009, 09:23 PM
Cheers to Rudy and Robert!

It's about time someone from the Mac "community" tried to find cheaper alternatives to the high priced - low tech hardware that Apple offers!

All you Apple apologists take note of Apple's obscene profits and ask yourself where's the $399 mac?

From what I can see, they're doing this for profit, not for the joy of hacking, or making Macs for less.
What they're doing here is illegal, and they're losing cases left and right, even in the most liberal state.

Yay for MacBytes!

MacDSmith2
Nov 11, 2009, 10:21 PM
All you Apple apologists take note of Apple's obscene profits and ask yourself where's the $399 mac?

There is nothing obscene about a public company making a profit. Ever hear of DEC? Data General? Commodore? Atari? TI? Processor Technology? MITS? Pertec? Do any of these companies make computers anymore? Apple is the ONLY company to survive the birth of the personal computer and live to make a buck in 2009 in an industry they created. More power to them!

samh004
Nov 11, 2009, 10:30 PM
Cheers to Rudy and Robert!

It's about time someone from the Mac "community" tried to find cheaper alternatives to the high priced - low tech hardware that Apple offers!

All you Apple apologists take note of Apple's obscene profits and ask yourself where's the $399 mac?

It's not coming, because Apple doesn't want to sell anything that cheap, and if you don't want to pay for their premium offerings no one is forcing you to!

By your same reasoning, look at how much Microsoft makes, they sell their OS and Office products for far too much money, should we force them to sell them at a cheaper price? It's not exactly the same, but you get my drift.

harperjones99
Nov 11, 2009, 11:05 PM
It's not coming, because Apple doesn't want to sell anything that cheap, and if you don't want to pay for their premium offerings no one is forcing you to!

By your same reasoning, look at how much Microsoft makes, they sell their OS and Office products for far too much money, should we force them to sell them at a cheaper price? It's not exactly the same, but you get my drift.

But they DO sell cheap stuff...they just charge twice as much for it. If Apple was as "premium" as you claim in anything other than price they wouldn't have so many customers fighting service issues over and over.

djgamble
Nov 11, 2009, 11:05 PM
If you want a cheap hackintosh then do it yourself... don't pay Pystar's premium.

dejo
Nov 11, 2009, 11:10 PM
Cheers to Rudy and Robert!
Kendall? Isn't their last name Pedraza?

pdjudd
Nov 11, 2009, 11:51 PM
"Psystar pays full price - $29 - for each copy of OS that it installs on its computers." $29 is the Snow Leopard upgrade price. The full price is $169 with iLife and iWork.

Thats just as false. The Mac Box Set is just a different license bundle that still has the same upgrade provisions that Snow Leopard has - it just covers Tiger instead of Leopard (And the only legal way you can get Tiger on Intel is with a Mac). The bindle pack also covers 2 other products. The SLA for SL is the exact same weather you get it in the Mac Box set or not. All of this is direct from Apple - there is no “full price” since every version of OSX requires a Mac as part of the license.

dvdhsu
Nov 11, 2009, 11:58 PM
Thats just as false. The Mac Box Set is just a different license bundle that still has the same upgrade provisions that Snow Leopard has - it just covers Tiger instead of Leopard (And the only legal way you can get Tiger on Intel is with a Mac). The bindle pack also covers 2 other products. The SLA for SL is the exact same weather you get it in the Mac Box set or not. All of this is direct from Apple - there is no “full price” since every version of OSX requires a Mac as part of the license.

Yeah, you have a point there. There isn't a full license available for Mac OS X, because you have to upgrade to install. The software can only be used on Apple branded computers, which then means that the computer must've had some version of Mac OS on it. Therefore, simply installing OS X doesn't work. It violates the EULA.

netkas
Nov 12, 2009, 05:27 AM
lol at claims 1/4.

I was first to release a driver(with sources) which emulates apple's security device (SMC with osk0/osk1 keys).

So, anyone else dont need to be very smart to copy it.

ajbrehm
Nov 12, 2009, 05:28 AM
I find it hilarious that people attack Apple and side with Psystar regarding the breaking of Apple's license but throw a fit when they hear of Psystar potentially violating an open source license. You can't have it both ways...

You are confusing the licence with copyright.

Distributing copies of any software without permission to do so is a violation of copyright law. But Psystar have permission to distribute copies of Mac OS X. They bought copies, they only distribute those copies. I can buy a book and give it to you. It's not a crime.

Psystar might not have permission to distribute open source software. Contrary to what many people assume open source software is not public domain software and does not come with a built-in right to multiply and distribute. ONLY accepting the open source licence gives anybody the right to make copies of the software and distribute them.

It is perfectly legal to buy a copy of any software and sell it to somebody else without ever accepting the licence. You don't need to accept a licence to distribute the one copy you legally bought.

But it is not legal to distribute copies you made of any software that is not in the public domain without accepting the licence that would allow you to do such, whether that licence is an Apple-style EULA or the GNU GPL.

So it is entirely possible that Psystar can legally distribute (the copies they bought of) Mac OS but not open source software (which they made their own copies of without accepting the licence that would allow them to do that).

balamw
Nov 12, 2009, 08:13 AM
It is perfectly legal to buy a copy of any software and sell it to somebody else without ever accepting the licence. You don't need to accept a licence to distribute the one copy you legally bought.

As long as you keep it in the unopened box, sure. However my understanding is that Psystar machines come with OS X preinstalled. Preinstallation involves copying the copyrighted bits from some DVD to the HDD, and in principle you need to have accepted the license to do that. Just as you point out you need to do for the open source software. As you pointed out copyrights and licenses are different, but they are related and sometimes interdependent.

I'd be more inclined to accepting your position if Psystar shipped you a box of bits, instructions and a separate box with OS X in it for you to install.

So, I'm with djgamble and apfhex if you want a Hackintosh, feel free to do your homework and DIY.

B

Rocketman
Nov 12, 2009, 08:29 AM
Do they install a common image on each machine and include a Leopard box with the machine, or do they open each and every copy of Leopard and install it individually on each machine?

Rocketman

kingtj
Nov 12, 2009, 09:24 AM
I can't say for certain, but I imagine they install from a common image. That's what almost all computer manufacturers do. Doesn't make a difference though, legally-speaking. If Psystar is installing from a common image, they have to hold a license that permits them to do it. Otherwise, each system they image is in violation. (Even Microsoft has a special type of license they sell to large system builders for Windows, allowing them to distribute versions of Windows with the computers that don't prompt the end user to enter a CD key during the installation. They use a default key they were assigned and they check the system BIOS to verify it's being installed on the right model of machine. That's why you can use a "Dell Reinstallation CD" of Windows XP, install it on any Dell machine, and it goes right on through without prompting you for a CD key. But if you try to use that same disc to install XP on a Toshiba or an Acer or something, you'll be prompted to enter a valid CD key. A key you use from some retail copy of XP or even from a sticker on the side of one of those machines, intended for use as the key with THEIR corresponding re-install CD, won't work.)


Do they install a common image on each machine and include a Leopard box with the machine, or do they open each and every copy of Leopard and install it individually on each machine?

Rocketman

Byrnes3969
Nov 12, 2009, 09:34 AM
Kendall? Isn't their last name Pedraza?

Thanks

balamw
Nov 12, 2009, 09:36 AM
Do they install a common image on each machine and include a Leopard box with the machine, or do they open each and every copy of Leopard and install it individually on each machine?

Who knows besides Psystar. EDIT: kingtj beat me to it.

The license gives you certain rights to make copies, but making infinite copies from one DVD is even further outside the license than opening every box.

http://images.apple.com/legal/sla/docs/macosx106.pdf

A. Single Use License. Subject to the terms and conditions of this License, unless you have purchased a Family Pack or Upgrade license for the Apple Software, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-branded computer, or to enable others to do so. This License does not allow the Apple Software to exist on more than one computer at a time, and you may not make the Apple Software available over a network where it could be used by multiple computers at the same time.

It's in pretty clear language.

B

Byrnes3969
Nov 12, 2009, 09:53 AM
Case in point: The cheapest POS Apple sells is the Mac mini, $599.

BUT - if you want to upgrade the memory you HAVE to have it done by a genius at the store OR buy from the Apple factory in China otherwise you void your warranty. What the heck is that?

Apple even re-engineered the damn thing to make it HARDER for people to do-it-themselves.

The Apple TV? Don't even get me started. Who remembers when Apple released the update that broke Boxee?

Sorry about all you G5 owners who can't upgrade to Snow Leopard. Just buy a new Quad for a couple more thousand.

All you Apple zealots keep cheering when they make another Billion. Go Psystar! Go!

pdjudd
Nov 12, 2009, 10:50 AM
Yeah, you have a point there. There isn't a full license available for Mac OS X, because you have to upgrade to install. The software can only be used on Apple branded computers, which then means that the computer must've had some version of Mac OS on it. Therefore, simply installing OS X doesn't work. It violates the EULA.

That's the important thing to point out and explains why you can install from an erased hard drive. The licensing terms do not specify that OSX has to be preinstalled before you can update - it just specifies installation on Apple branded hardware. Thus, possessing a Mac in of itself fulfills the licensing requirements. Your simply upgrading from whatever operating system the restore discs license you to. THe mac is the key point in both the system requirements and the license - you possess the hardware, it is presumed that you posses the right to install the software. They go hand in hand.

Lots of upgrade discs (expectantly those from MS) will install full copies from discs specifically marked as upgrades when you have nothing installed (like a prior version of Office), you just have to priove you own a prior version (like inserting a prior version disc). Apple's proof is that it's hardware checks that Apple Branded hardware is designed to pass.

Other evidence that they are upgrade media is that retail discs are not future proof - If I buy a SL disc now and buy a new mac next year, that disc I bought at retail may not work on that new disc - they are intended for older macs that you would be upgrading to.

atari1356
Nov 12, 2009, 10:58 AM
Case in point: The cheapest POS Apple sells is the Mac mini, $599.

BUT - if you want to upgrade the memory you HAVE to have it done by a genius at the store OR buy from the Apple factory in China otherwise you void your warranty. What the heck is that?

All you Apple zealots keep cheering when they make another Billion. Go Psystar! Go!

The cheapest POS Psystar makes is also $599... and that doesn't include wireless networking, Firewire or Bluetooth which the Mini does.

... but, yes, it would be nice if the Mini were more easily upgradeable.

pdjudd
Nov 12, 2009, 11:23 AM
Case in point: The cheapest POS Apple sells is the Mac mini, $599.

That's their right

BUT - if you want to upgrade the memory you HAVE to have it done by a genius at the store OR buy from the Apple factory in China otherwise you void your warranty. What the heck is that?

You can do it yourself - plus I can find no evidence that opeing up your Mac Mini voids your warranty in any way - obviously if you damage your hardware while doing a repair your screwed, but that SOP. I can find no evidence that opening up your Mac Mini (Which is very doable by the way) will void your warranty.

Apple even re-engineered the damn thing to make it HARDER for people to do-it-themselves.

Ifixit's guide is 13 steps and they don't look that hard. Anyways, it's irrelevant to begin with - there is nothing illegal or wrong about creating things that are difficult to replace - manufactures do that all the time. The Mac is not marketed as a tinkeres device that is expandable.

The Apple TV? Don't even get me started. Who remembers when Apple released the update that broke Boxee?
Apple never published a SDK and you are surprised that a hack broke?

Sorry about all you G5 owners who can't upgrade to Snow Leopard. Just buy a new Quad for a couple more thousand.
Oh come on! Any modern mac is capable of running Snow Leopard. Even the minis are way better than the G5's. And Apple never promised eternal updates either. Anybody buying a PPC Mac after the Intel transition bought into it knowing that their architecture was not going to be maintained forever. Apple made it clear that they were focused on the intel platform. Get over it.

packgrad2000
Nov 12, 2009, 11:50 AM
BUT - if you want to upgrade the memory you HAVE to have it done by a genius at the store OR buy from the Apple factory in China otherwise you void your warranty. What the heck is that?



That is not true. You can upgrade hard drives, memory, etc. even if they're not "user replaceable" parts in any Mac and it will not void your warranty. I've combed through the warranty info on my MBP (which I upgraded the HD on, even though it's not "user" replaceable) and can find no such claim. If you break something on your Mac in doing the upgrade, I'm sure you'll have a hard time getting that fixed under warranty, but that's not Apple's fault!

balamw
Nov 12, 2009, 01:10 PM
If I buy a SL disc now and buy a new mac next year, that disc I bought at retail may not work on that new Mac- they are intended for older macs that you would be upgrading to.

Fixed that for you.

B

Byrnes3969
Nov 12, 2009, 03:45 PM
That's their right


You can do it yourself - plus I can find no evidence that opeing up your Mac Mini voids your warranty in any way - obviously if you damage your hardware while doing a repair your screwed, but that SOP. I can find no evidence that opening up your Mac Mini (Which is very doable by the way) will void your warranty.

:mad: I spoke to Apple and they state "The Mac Mini RAM upgrade is NOT user replaceable. IF you open it you void you warranty. Thanks Apple

Ifixit's guide is 13 steps and they don't look that hard. Anyways, it's irrelevant to begin with - there is nothing illegal or wrong about creating things that are difficult to replace - manufactures do that all the time. The Mac is not marketed as a tinkeres device that is expandable.

Apple never published a SDK and you are surprised that a hack broke?

:mad: My point made, APPLE won't allow anyone to enhance their stale products even if APPLE allows it to wither on the vine. Still no use for that USB port on the back

Oh come on! Any modern mac is capable of running Snow Leopard. Even the minis are way better than the G5's. And Apple never promised eternal updates either. Anybody buying a PPC Mac after the Intel transition bought into it knowing that their architecture was not going to be maintained forever. Apple made it clear that they were focused on the intel platform. Get over it.

:mad: Tell that to the college students who trusted APPLE when they bought a $4000 G5. No support for the OS after a couple of years and you say "so what." Nice

pdjudd
Nov 12, 2009, 03:56 PM
I spoke to Apple and they state "The Mac Mini RAM upgrade is NOT user replaceable. IF you open it you void you warranty. Thanks Apple

Until you can cite something other than "this guy told me" I am calling bull.

My point made, APPLE won't allow anyone to enhance their stale products even if APPLE allows it to wither on the vine. Still no use for that USB port on the back

Irrelevant. When you hack your product its not Apple' job to accommodate you. Boxee is a hack since there is no development platform nor was one ever advertised or implied. Buyer beware.

Tell that to the college students who trusted APPLE when they bought a $4000 G5. No support for the OS after a couple of years and you say "so what." Nice

puhlease.. What college student spends $4000 dollars on a pro Mac well into a hardware transition that was discontinued well over 3 years ago. Note I said Discontinued - Intel Mac Pros have been available for 3 years.

Not to mention Apple never guarantees that you will have software support, just hardware support. Suffince to say, I still claim that anybody buying a discontinued computer during the PPC transition know that they were risking things.

ajbrehm
Nov 12, 2009, 05:07 PM
As long as you keep it in the unopened box, sure. However my understanding is that Psystar machines come with OS X preinstalled. Preinstallation involves copying the copyrighted bits from some DVD to the HDD, and in principle you need to have accepted the license to do that. Just as you point out you need to do for the open source software. As you pointed out copyrights and licenses are different, but they are related and sometimes interdependent.


You can install open source software without accepting the licence. You do not need a licence to use ONE copy of the software you legally got. You only need the open source licence to DISTRIBUTE further copies or modified copies.

Similarly you don't have to accept Apple's licence to install ONE copy. And in many countries such licences have no legal value at all.

I don't know if software licences were ever tested in a US court, but generally it is still legal to buy software, install it on something, and then sell the same copy again, provided that you destroy all remaining copies or distribute them to the new owner of the legal copy as well.

Selling used computer games is legal, for example.

The point is really not whether Psystar can legally distribute Mac OS X (they can). The point is just whether they can legally install it on non-Apple hardware. In Europe they could. In America I don't know.

But if I put a sticker on my money that said that accepting this money means accepting the licence terms written on this sticker and manage to buy Apple software in an Apple store with that money, I would hardly demand that such a licence can be enforced (or that Apple are not allowed to give my money to other people once Apple received it from me).



I'd be more inclined to accepting your position if Psystar shipped you a box of bits, instructions and a separate box with OS X in it for you to install.


It's not a position. I was merely pointing out a few facts.

gnasher729
Nov 12, 2009, 05:10 PM
Do they install a common image on each machine and include a Leopard box with the machine, or do they open each and every copy of Leopard and install it individually on each machine?

Psystar admitted to the court that they create one master copy that is then copied onto all their machines, which obviously makes all their arguments that they are acting in any way legally completely moot.

dejo
Nov 12, 2009, 05:14 PM
The point is really not whether Psystar can legally distribute Mac OS X (they can).
Since they are not an authorized distributor of Apple products, how can they legally distribute Mac OS X? I think you have distribution confused with first-sale.

Rocketman
Nov 12, 2009, 05:20 PM
Psystar admitted to the court that they create one master copy that is then copied onto all their machines, which obviously makes all their arguments that they are acting in any way legally completely moot.

That narrows their range of legal defenses but it does not screw them. The legal system is itself arbitrary and capricious so they could still prevail.

Someone: You do not need a license to use ONE copy of the software you legally got. You only need the open source license to DISTRIBUTE further copies or modified copies.

Rocketman

cjmillsnun
Nov 12, 2009, 05:49 PM
:mad: Tell that to the college students who trusted APPLE when they bought a $4000 G5. No support for the OS after a couple of years and you say "so what." Nice

3 years (The G5 was replaced by the Mac Pro in August 06), not a couple and Leopard is still supported and will be until shortly after 10.7 comes out. So their system can still run a supported OS for probably another 18-24 months making the system about 5 years old...

dvdhsu
Nov 12, 2009, 05:51 PM
:mad: Tell that to the college students who trusted APPLE when they bought a $4000 G5. No support for the OS after a couple of years and you say "so what." Nice
You know, if Pystar made PowerPC Hacknitoshes, they wouldn't be able to run Snow Leopard either. *Surprise!*
Most computers at reasonable prices that were sold 5 years ago can't run Windows 7 either.

You can install open source software without accepting the licence. You do not need a licence to use ONE copy of the software you legally got. You only need the open source licence to DISTRIBUTE further copies or modified copies.



That's for Open Source Software, which doesn't have a License Agreement of it's on. The Agreement is from BSD/GNU, and other open source initiatives. Mac OS X is not considered "Open Source"
Similarly you don't have to accept Apple's licence to install ONE copy. And in many countries such licences have no legal value at all.

I don't know if software licences were ever tested in a US court, but generally it is still legal to buy software, install it on something, and then sell the same copy again, provided that you destroy all remaining copies or distribute them to the new owner of the legal copy as well.


By using a piece of software here in the US, you're entering into a Contract with the company by which the software is from. The contract says that you have to follow the EULA, and in return, you can use their software.
This contract is legally binding, and you can get hauled off to court for this.
In the United States, people have violate the EULA, been brought to court by Microsoft (and other companies of course, but the primary one being) and have lost.
Back to the original point. Pystar is installing Mac OS X on computers. They have the license to do so, but they're breaking their part of the contract by installing this on "Non-Apple Equipment". By doing so, they're breaking the EULA.
To determine whether a contract is legal:
There can be four different ways in which contracts can be set aside. A contract may be deemed 'void', 'voidable', 'unenforceable'or 'ineffective'. Voidness implies that a contract never came into existence. Voidability implies that one or both parties may declare a contract ineffective at their wish. Unenforceability implies that neither party may have recourse to a court for a remedy. Ineffectiveness implies that the contract terminates by order of a court where a public body has failed to satisfy public procurement law. Rescission is a term which means to take a contract back.
[edit]Misrepresentation
Main article: Misrepresentation
Misrepresentation means a false statement of fact made by one party to another party and has the effect of inducing that party into the contract. For example, under certain circumstances, false statements or promises made by a seller of goods regarding the quality or nature of the product that the seller has may constitute misrepresentation. A finding of misrepresentation allows for a remedy of rescission and sometimes damages depending on the type of misrepresentation.
There are two types of misrepresentation in contract law, fraud in the factum and fraud in inducement. Fraud in the factum focuses on whether the party in question knew they were creating a contract. If the party did not know that they were entering into a contract, there is no meeting of the minds, and the contract is void. Fraud in inducement focuses on misrepresentation attempting to get the party to enter into the contract. Misrepresentation of a material fact (if the party knew the truth, that party would not have entered into the contract) makes a contract voidable.
According to Gordon v. Selico[61] it is possible to make a misrepresentation either by words or by conduct, although not everything said or done is capable of constituting a misrepresentation. Generally, statements of opinion or intention are not statements of fact in the context of misrepresentation.[62] If one party claims specialist knowledge on the topic discussed, then it is more likely for the courts to hold a statement of opinion by that party as a statement of fact.[63]
[edit]Mistake
Main article: Mistake (contract law)
A mistake is an incorrect understanding by one or more parties to a contract and may be used as grounds to invalidate the agreement. Common law has identified three different types of mistake in contract: unilateral mistake, mutual mistake, and common mistake.
A common mistake is where both parties hold the same mistaken belief of the facts. This is demonstrated in the case of Bell v. Lever Brothers Ltd.,[64] which established that common mistake can only void a contract if the mistake of the subject-matter was sufficiently fundamental to render its identity different from what was contracted, making the performance of the contract impossible.
A mutual mistake is when both parties of a contract are mistaken as to the terms. Each believes they are contracting to something different. The court usually tries to uphold such a mistake if a reasonable interpretation of the terms can be found. However, a contract based on a mutual mistake in judgement does not cause the contract to be voidable by the party that is adversely affected. See Raffles v. Wichelhaus.[65]
A unilateral mistake is where only one party to a contract is mistaken as to the terms or subject-matter. The courts will uphold such a contract unless it was determined that the non-mistaken party was aware of the mistake and tried to take advantage of the mistake.[66] It is also possible for a contract to be void if there was a mistake in the identity of the contracting party. An example is in Lewis v. Avery[67] where Lord Denning MR held that the contract can only be avoided if the plaintiff can show that, at the time of agreement, the plaintiff believed the other party's identity was of vital importance. A mere mistaken belief as to the credibility of the other party is not sufficient.
[edit]Duress and undue influence
Main articles: Duress (contract law) and Undue influence
Duress has been defined as a "threat of harm made to compel a person to do something against his or her will or judgment; esp., a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition."[68] An example is in Barton v. Armstrong,[69] a decision of the Privy Council. Armstrong threatened to kill Barton if he did not sign a contract, so the court set the contract aside. An innocent party wishing to set aside a contract for duress to the person need only to prove that the threat was made and that it was a reason for entry into the contract; the burden of proof then shifts to the other party to prove that the threat had no effect in causing the party to enter into the contract. There can also be duress to goods and sometimes, the concept of 'economic duress' is used to vitiate contracts.
Undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. The law presumes that in certain classes of special relationship, such as between parent and child, or solicitor and client, there will be a special risk of one party unduly influencing their conduct and motives for contracting. As an equitable doctrine, the court has the discretion to vitiate such a contract. When no special relationship exists, the general rule is whether there was a relationship of such trust and confidence that it should give rise to such a presumption.[70] See Odorizzi v. Bloomfield School District.
[edit]Incapacity
Main article: Capacity (law)
Sometimes the capacity of either natural or artificial persons to either enforce contracts, or have contracts enforced against them is restricted. For instance, very small children may not be held to bargains they have made, on the assumption that they lack the maturity to understand what they are doing; errant employees or directors may be prevented from contracting for their company, because they have acted ultra vires (beyond their power). Another example might be people who are mentally incapacitated, either by disability or drunkenness.[71] When the law limits or bars a person from engaging in specified activities, any agreements or contracts to do so are either voidable or void for incapacity. The law on capacity can serve either a protective function or can be a way of restraining people who act as agents for others.
[edit]Illegal contracts
Main article: Illegal agreement
A contract is void if it is based on an illegal purpose or contrary to public policy. One example, from Canada, is Royal Bank of Canada v. Newell.[72] A woman forged her husband's signature on 40 checks, totaling over $58,000. To protect her from prosecution, her husband signed a letter of intent prepared by the bank in which he agreed to assume "all liability and responsibility" for the forged checks. However, the agreement was unenforceable, and struck down by the courts because of its essential goal, which was to "stifle a criminal prosecution." Because of the contract's illegality, and as a result voided status, the bank was forced to return the payments made by the husband.
In the U.S., one unusual type of unenforceable contract is a personal employment contract to work as a spy or secret agent. This is because the very secrecy of the contract is a condition of the contract (in order to maintain plausible deniability). If the spy subsequently sues the government on the contract over issues like salary or benefits, then the spy has breached the contract by revealing its existence. It is thus unenforceable on that ground, as well as the public policy of maintaining national security (since a disgruntled agent might try to reveal all the government's secrets during his/her lawsuit).[73] Other types of unenforceable employment contracts include contracts agreeing to work for less than minimum wage and forfeiting the right to workman's compensation in cases where workman's compensation is due.
[edit]-From Wikipedia. Sorry, I don't have time to iron everything out.
Quite frankly, the EULA is perfectly legal, unless the founders of Pystar don't have the mental capacity to understand the contract. Thus, it's enforceable in court.

cjmillsnun
Nov 12, 2009, 06:07 PM
You can install open source software without accepting the licence. You do not need a licence to use ONE copy of the software you legally got. You only need the open source licence to DISTRIBUTE further copies or modified copies.

Similarly you don't have to accept Apple's licence to install ONE copy. And in many countries such licences have no legal value at all.

BS

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE APPLE SOFTWARE. BY USING THE APPLE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE


In the EU software EULAs are legally binding, they most certainly have been tested legally in the states and are binding, likewise in Australia and Japan.

I don't know if software licences were ever tested in a US court, but generally it is still legal to buy software, install it on something, and then sell the same copy again, provided that you destroy all remaining copies or distribute them to the new owner of the legal copy as well.

erm yes you have right of first sale, but you must uninstall (including not upgrading over it with an upgrade licence)

Selling used computer games is legal, for example.

yes but they must be uninstalled and all copies destroyed. Only the original media is allowed to be passed on.

The point is really not whether Psystar can legally distribute Mac OS X (they can). The point is just whether they can legally install it on non-Apple hardware.

Yes that is the point
In Europe they can't. In America I don't know. fixed that for you. Have a look at the EU Copyright directive (our equivalent of the DMCA!)

Technological measures

Article 6 of the Directive provides protection for "technological measures", any technology device or component which is designed to restrict or prevent certain acts which are not authorised by the rightholder. Member States must provide "adequate legal protection", which may be civil, criminal or a mix of the two. Technological measures are only protected if they are "effective", which means not when they actually work but when they have been successfully implemented. A simple password is thus "effective" irrespective of the ease with which it may be cracked. Rightholders who use such anti-circumvention measures must allow reproduction which is permitted under the limitations to copyright protection [Art. 6(4)]. Digital rights management information is similarly protected (Art. 7).
Unlike Section 1201 of the Digital Millennium Copyright Act, which only prohibits circumvention of access control measures, InfoSoc Directive also prohibits circumvention of copy protection measures, making it potentially more restrictive. In both DMCA and InfoSoc Directive, production, distribution etc. of equipment used to circumvent both access and copy-protection is prohibited. Under DMCA, a potential user who wants to avail herself of an alleged fair use privilege to crack copy protection (which is not prohibited) would have to do it herself since no equipment would lawfully be marketed for that purpose. Under InfoSoc Directive, this possibility would not be available since circumvention of copy protection is illegal.

All hackintoshes emulate EFI in some way or patch around it. That is either copying Apple's firmware (illegal) or circumventing the DRM that ensures that the OS only works on Apple hardware (illegal)

But if I put a sticker on my money that said that accepting this money means accepting the licence terms written on this sticker and manage to buy Apple software in an Apple store with that money, I would hardly demand that such a licence can be enforced (or that Apple are not allowed to give my money to other people once Apple received it from me).

you don't own the copyright for the money, your government does, believe it or not you use their coins and notes under licence!

It's not a position. I was merely pointing out a few facts.

they weren't facts from what I could see!

balamw
Nov 12, 2009, 07:16 PM
Until you can cite something other than "this guy told me" I am calling bull.


I had previously found information on replacing the hard drive and memory for various MacBooks on support.apple.com indicating they were considered user-serviceable, but this is what's in the manual for the current mini. http://manuals.info.apple.com/en_US/Mac_mini_Late2009_UG.pdf

Do Not Make Repairs Yourself
Your Mac mini doesn’t have any user-serviceable parts. Do not attempt to open your Mac mini. If your Mac mini needs service, consult the service and support information that came with your computer for instructions about how to contact an Apple Authorized Service Provider or Apple for service.

If you open your Mac mini or install items, you risk damaging your equipment, and such damage isn’t covered by the limited warranty on your Mac mini..

I would interpret that as you have.The mere act of opening the mini doesn't void the warranty in and of itself, but if you break it you buy it. Probably depends on the mood of the Genius or other Apple rep to see how they want to interpret it.

You can install open source software without accepting the licence. You do not need a licence to use ONE copy of the software you legally got. You only need the open source licence to DISTRIBUTE further copies or modified copies.

Um. No. Copyright is automatic, so in principle you need an explicit license to make a copy of anything.

In all countries where the Berne Convention standards apply, copyright is automatic, and need not be obtained through official registration with any government office. Once an idea has been reduced to tangible form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape, or a computer file), the copyright holder is entitled to enforce his or her exclusive rights.

Further, "open source" can mean lots of things http://www.gnu.org/philosophy/categories.html and in each category there is an explicit license that governs what you can and can't do with the pre-compiled binaries as well as the source. Some restrictions may be placed on distribution, others on use, for the GPL it means that if you distribute a binary you must also be prepared to distribute the source including any modifications that you have made to the code. This is where Psystar and many others that distribute compiled GPL code get in trouble.


It's not a position. I was merely pointing out a few facts.
This is law, there are no facts only positions and precedent. :)

B

brisbaneguy29
Nov 12, 2009, 10:02 PM
I am an owner of one of those $4000 quad G5's that are now not able to run 10.6, and you know what, I don't care. I have had 4 years great service from this machine, and it still works fine. It is not like just because they made Snow Leopard for Intel only, my machine stopped working. The machine is still a very powerful work station.

I for one applaud apple for not trying to make their OS support legacy old hardware. IT forever advances, and OS's and software should too. I think Microsoft should do a similar thing, stop supporting legacy hardware and software, and move on. People are always upgrading, and I am about to do so too, and now I will be able to run Snow Leopard. What difference does it make that it is 6 months later than everyone else. I was still able to pump out $50,000 work of work on my old unsupported machine in that time.

dvdhsu
Nov 12, 2009, 10:48 PM
I am an owner of one of those $4000 quad G5's that are now not able to run 10.6, and you know what, I don't care. I have had 4 years great service from this machine, and it still works fine. It is not like just because they made Snow Leopard for Intel only, my machine stopped working. The machine is still a very powerful work station.

I for one applaud apple for not trying to make their OS support legacy old hardware. IT forever advances, and OS's and software should too. I think Microsoft should do a similar thing, stop supporting legacy hardware and software, and move on. People are always upgrading, and I am about to do so too, and now I will be able to run Snow Leopard. What difference does it make that it is 6 months later than everyone else. I was still able to pump out $50,000 work of work on my old unsupported machine in that time.

Exactly.
Anybody buying technological products should know that things "expire" over time. If you're rich enough to pour 5,000 on a computer 4 years ago, chances are, you still have that kind of money today.

And yes, I agree with you. Microsoft is killing itself supporting legacy hardware.

Byrnes3969
Nov 12, 2009, 11:30 PM
That is not true. You can upgrade hard drives, memory, etc. even if they're not "user replaceable" parts in any Mac and it will not void your warranty. I've combed through the warranty info on my MBP (which I upgraded the HD on, even though it's not "user" replaceable) and can find no such claim. If you break something on your Mac in doing the upgrade, I'm sure you'll have a hard time getting that fixed under warranty, but that's not Apple's fault!

YES YOU DO VOID YOUR WARRANTY. AND it IS their fault by making their hardware difficult if not impossible to do it yourself.

READ:

http://discussions.apple.com/thread.jspa?threadID=2168171&tstart=0

Apple wants you to buy their stuff and FORCES you to use their stores for repair$

Thanks again Apple

ajbrehm
Nov 13, 2009, 05:27 AM
"You can install open source software without accepting the licence. You do not need a licence to use ONE copy of the software you legally got. You only need the open source licence to DISTRIBUTE further copies or modified copies."

Um. No. Copyright is automatic, so in principle you need an explicit license to make a copy of anything.


Non sequitur. I didn't say that copyright was not automatic or that it doesn't apply.

When you buy or otherwise legally obtain a product, you have an implicit licence to use it as copyright law allows. This includes AT LEAST making one copy of the software to run it and one for backup purposes.

You ONLY need the licence to distibute copies of the software, not to use the copy you yourself obtained.

In principle you do not have to agree to an open-source licence. You can use GPL (and other open source) software without ever agreeing to its licence terms.

Of course, without agreeing to the licence terms you have no permission to distribute the software or modified versions of it. But you can certainly use it and make your own legal copies (including hard disk copies, copies in RAM, and backup copies).



Further, "open source" can mean lots of things http://www.gnu.org/philosophy/categories.html and in each category there is an explicit license that governs what you can and can't do with the pre-compiled binaries as well as the source. Some restrictions may be placed on distribution, others on use, for the GPL it means that if you distribute a binary you must also be prepared to distribute the source including any modifications that you have made to the code. This is where Psystar and many others that distribute compiled GPL code get in trouble.


None of these matter if you don't accept the licence terms and use the software anyway.

You are not required to agree to anything to merely use software which is licensed under the GPL. You only have obligations if you modify or distribute the software. If it really bothers you to click through the GPL, nothing stops you from hacking the GPLed software to bypass this.

mysterytramp
Nov 13, 2009, 06:58 AM
YES YOU DO VOID YOUR WARRANTY. AND it IS their fault by making their hardware difficult if not impossible to do it yourself.


You aren't AT ALL responsible for purchasing it in the first place? None of this was hidden when Apple was marketing the minis. If this is an issue for you, one wonders why you bought one.

BTW, Apple isn't alone with this type of policy. eMachines tells its customers the same thing: open the case and you're likely to void your warranty. I can only speculate, but the open-the-case-void-the-warranty issue is probably more prevalent than folks on this thread are assuming.

mt

hakr
Nov 13, 2009, 07:47 AM
I love my iMac, but there is no question the Macs are grossly overpriced.

As an example, in two minutes, I configured this baby from MagicMicro:

Intel i7 X58

Intel Core i7 950 3.06GHz (Quad Core) 8000K
Intel Socket 1366 CPU fan
MSI X58 Pro-E, DDR3, SLI & Cross Fire, GB LAN, iEEE
6GB (3x2GB) PC3 12800 DDR3 1600 Triple Channel
ATI Radeon HD 4890 1GB PCI Express 16x dual head, tv out
1000GB Samsung 7200RPM SATA2, UDMA 300 32m cache
Hard Drive Cooling Fan Aluminum Internal
12-in-1 Memory Card Reader Internal Black
Samsung 52x24x52 CDRW Drive (black)
LG Blu-ray Reader, 16x LightScribe DVD Recorder SATA combo drive
AC 97 3D Full Duplex sound card (onboard)
Ethernet network adapter (onboard)
FireWire Adapter Card PCI
APEVIA X-Plorer Silver, Side Window, front USB,iEEE,Temp control
Dual Case Fans 120 mm Extra Quiet DC fan (two fans)
Thermaltake Toughpower 700W ATX Power Supply, SLI ready, active PFC

Total? $1829 Add in a monitor, and you have a firebreather. There's nothing at any price point anywhere near that from Apple.

balamw
Nov 13, 2009, 09:13 AM
Please provide sources/links to back up your argument. I have.

I reread the GPL and withdraw my previous claim. The GPL itself gives you the right to not accept the GPL except for modification and propagation. My point remains that other licenses, including "open source" ones, may not define your rights in the same way. In particular, Apple's license to OS X does not grant you those rights.

9. Acceptance Not Required for Having Copies.
You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE APPLE SOFTWARE. BY USING THE APPLE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE, UNLESS YOU RETURN THE APPLE SOFTWARE IN ACCORDANCE WITH APPLE’S RETURN POLICY.

Psystar may or not be guilty of violating the GPL w.r.t. Rebel EFI, by distributing modified GPL code without providing source, but that will out as it already has in may other cases. http://en.wikipedia.org/wiki/BusyBox#GPL_lawsuits

Regardless, the main topic was OS X, which is not distributed under the GPL.

When you buy or otherwise legally obtain a product, you have an implicit licence to use it as copyright law allows. This includes AT LEAST making one copy of the software to run it and one for backup purposes.


Fundamentally, this seems to be a circular argument.

I can't know if I have obtained something legally or not until I understand if the person who distributed it to me had the right to do so! To ascertain this for software, I need to know the terms of the license. I don't necessarily have to accept those terms, yet, but I do need to understand any limitations it imposes on distribution. (Brick and Mortar equivalent. Was the gentleman who offered me the Blu-Ray for $50 off the back of his truck authorized to sell them? If not, I'm probably not obtaining it legally and run the risk of losing it.)

OK so let's assume everything was distributed properly. I assume the one copy you keep going on about is the backup copy most people assume is supported by the Fair Use Doctrine in the US, but remains untested (http://w2.eff.org/IP/eff_fair_use_faq.php).

I now have two copies of the software in question (original and backup). In order to understand what I am allowed to do with them, I need to refer to the license (i.e. the agreement between the end user and the software developer).

Example. I can legally purchase a box containing Microsoft Office Home & Student at a retail establishment. They had the right to sell it to me, I had the right to buy it. I'll assume as you do that am allowed to and capable of making one copy of the installer DVD for backup purposes. Now, according to you, I am free to ignore the license agreement that restricts it to non-commerical use and use ONE COPY of that software at my Fortune 500 company?

Even if it I obtained it legally, and it functions properly, I am still operating outside of my agreement with the developer. Just like buying the boosted Blu-Ray player, your chances of actually getting caught or sued are slim, but you are still not honoring your commitment to the developer. The developer is then free to terminate their license to you, and enforce that termination as they see fit.

6. Termination. This License is effective until terminated. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from Apple if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Apple Software and destroy all copies, full or partial, of the Apple Software. Sections 7, 8, 9, 10, 13 and 14 of this License shall survive any such termination.

B

ajbrehm
Nov 13, 2009, 10:46 AM
Please provide sources/links to back up your argument. I have.


May I ask which of your arguments you have backed up with sources? It's not obvious.


I reread the GPL and withdraw my previous claim. The GPL itself gives you the right to not accept the GPL except for modification and propagation. My point remains that other licenses, including "open source" ones, may not define your rights in the same way. In particular, Apple's license to OS X does not grant you those rights.


Which, again, doesn't matter because copyright law already grants me the right to use a copy of the software I bought, regardless of what the licence says.

The licence cannot take away the rights I already have.


Psystar may or not be guilty of violating the GPL w.r.t. Rebel EFI, by distributing modified GPL code without providing source, but that will out as it already has in may other cases. http://en.wikipedia.org/wiki/BusyBox#GPL_lawsuits


They probably are guilty of violating the GPL. But not because they are using the software but because they are distributing modified copies without permission.



Regardless, the main topic was OS X, which is not distributed under the GPL.


But which nevertheless falls under copyright law which, as I said before, already gives me the right to use the copy I bought and make a backup and so on.


Fundamentally, this seems to be a circular argument.

I can't know if I have obtained something legally or not until I understand if the person who distributed it to me had the right to do so!


I am assuming that Apple have the right to sell me copies of Mac OS X.



To ascertain this for software, I need to know the terms of the license.


No you don't. In fact you don't even know the terms of the licence before you open the box and start installing the software.

You do not need to know the licence terms to ascertain if the seller had the legal right to sell you the software.

If the seller is the copyright holder, he obviously has the right to sell you a copy.

If the seller is not the copyright holder and he sells you a copy he bought (and not a copy he made), he also has the right to sell you that copy.



I don't necessarily have to accept those terms, yet, but I do need to understand any limitations it imposes on distribution. (Brick and Mortar equivalent. Was the gentleman who offered me the Blu-Ray for $50 off the back of his truck authorized to sell them? If not, I'm probably not obtaining it legally and run the risk of losing it.)


I am pretty sure that the copies of Mac OS X Psystar bought from Apple were legal.



OK so let's assume everything was distributed properly. I assume the one copy you keep going on about is the backup copy most people assume is supported by the Fair Use Doctrine in the US, but remains untested (http://w2.eff.org/IP/eff_fair_use_faq.php).

I now have two copies of the software in question (original and backup). In order to understand what I am allowed to do with them, I need to refer to the license (i.e. the agreement between the end user and the software developer).


No, you don't.

In fact you can make as many copies as you like. You are just allowed to distribute them (or make them available to be used at the same time).

What the licence says is immaterial as you are already entitled to what copyright says you are entitled to.



Example. I can legally purchase a box containing Microsoft Office Home & Student at a retail establishment. They had the right to sell it to me, I had the right to buy it. I'll assume as you do that am allowed to and capable of making one copy of the installer DVD for backup purposes. Now, according to you, I am free to ignore the license agreement that restricts it to non-commerical use and use ONE COPY of that software at my Fortune 500 company?


I doubt it. In the case of student editions you made the agreement with the seller before you bought the software.

I was talking about licences you get to see after you bought the software, not agreement you made with the seller otherwise.

I understand the seller should check whether you are eligible to buy that software. At that point you should have learned the terms.

If, however, Microsoft sold you the product without telling you about those restrictions, my understanding is that you can ignore them and you can use the software as permitted by copyright law regardless of what any licence displayed during installation says.





Even if it I obtained it legally, and it functions properly, I am still operating outside of my agreement with the developer. Just like buying the boosted Blu-Ray player, your chances of actually getting caught or sued are slim, but you are still not honoring your commitment to the developer. The developer is then free to terminate their license to you, and enforce that termination as they see fit.



If you bought a car and then, after the fact, the car told you that you are only allowed to drive it on Mondays, you would likely think that the car dealer has no business in adding terms to the sale after you already bought the car.

If, however, he told you that the car is a home and student edition to be used at home and/or as a student, the fact that those are parts of the deal would be more obvious.

In fact in the US it is not clear what the legal status of such "contracts" are:

http://www.informationweek.com/news/global-cio/showArticle.jhtml?articleID=197003052

In Europe contract law does not recognise a EULA as a valid contract.

And then there is this case:

http://www.wilmerhale.com/publications/whPubsDetail.aspx?publication=2119

In Softman Products Company, LLC v. Adobe Systems Inc., a federal district court in California held that when a software vendor transfers a copy of its software, that transfer should be viewed as a sale of goods rather than a license of intellectual property.

...

The court found that even if a shrinkwrap license might be enforceable against an end-user, Softman was not bound by that agreement because a user could only agree to the terms of the Adobe End User License Agreement when it installed the program, and Softman never attempted to install the software that it sold. Although a notice on the software box indicated that a license agreement was contained on the software media, there was no hard copy of the agreement enclosed in the box. The court held that Softman's reading of the notice on the box did not itself amount to an assent to the terms of the license agreement, which were never presented to Softman.

...

It is interesting to note that the Adobe court's holding is consistent with European Union directives and decisions. Under European Union law, a lump-sum license to use software for an indefinite period of time is deemed to be a sale of goods, in which case the software vendors' restrictions on transfer of physical copies of that software will not be enforced.

So in contrast to your claim that the licence is a valid contract, it really is still under discussion in the US. What is clear, however, is that the contract does not affect people who haven't seen it.

balamw
Nov 13, 2009, 12:59 PM
My takeaway from Cory Doctorow's article you linked is that this stuff is a mess, and it isn't going to get any better when the lawsuits start flying. And that I agree with.


No you don't. In fact you don't even know the terms of the licence before you open the box and start installing the software.

This isn't the 1990s! The Adobe case you cited below that was settled in 2001. Today, a URL to the license is often plastered on the box so you do have an easy way to read and evaluate it before you open the box. What's more, is that having the license on the web makes it accessible to the blind which has been an argument against hardcopy EULAs in the box before.

http://www.microsoft.com/useterms is on the outside of the box for Windows 7 sitting next to me and Apple's agreements are all here: http://www.apple.com/legal/sla/.


If the seller is not the copyright holder and he sells you a copy he bought (and not a copy he made), he also has the right to sell you that copy.


In fact you can make as many copies as you like. You are just allowed to distribute them (or make them available to be used at the same time).


(I will assume you meant not allowed to distribute them).

According to gnasher729 above, Psystar is selling you one of many copies that they made from an original when they preinstall it for you. So, how does this fit with your quotes above? Again if they shipped you the unopened box and nothing else, by doctrine of first sale, no problem! Even if they are shipping you an unopened box, they do not have a right to redistribute the copy of the software that is preinstalled on the machine per your second quote above.

One can argue that since the bits on the DVDs are all the same it shouldn't matter if they all came from one original or not, but your second quote seems to say you believe otherwise.


I understand the seller should check whether you are eligible to buy that software. At that point you should have learned the terms.


Problem is, it's not up to the seller to verify eligibility, because the license covers the use of the software and is between you the user and the software developer. All the seller needs to tell you is that they are selling it to you under certain assumptions. Case in point. Newegg resells OEM/SBE licenses of Windows with this disclaimer:

Use of this OEM System Builder Channel software is subject to the terms of the Microsoft OEM System Builder License. This software is intended for pre-installation on a new personal computer for resale. This OEM System Builder Channel software requires the assembler to provide end user support for the Windows software and cannot be transferred to another computer once it is installed. To acquire Windows software with support provided by Microsoft please see our full package "Retail" product offerings.

The OEM System Builder License is here: http://oem.microsoft.com/script/contentPage.aspx?pageid=552857

It's fairly clear in the license that you need to resell the computer system (with the OS you purchased installed) to a third party to comply with the license and any use beyond that is outside the license.

Just because you don't read it doesn't mean it wasn't clearly made available to you prior to sale and you can just ignore it, nor does it mean that NewEgg is somehow responsible when someone buys an OEM license to install on their home PC that is not destined for resale to a third party.

As I said before your chances of getting caught in the act for individual cases of ignoring/disrespecting/violating a software license are slim to none, but what Psystar is doing is just asking for it.


In fact in the US it is not clear what the legal status of such "contracts" are:

Which is why I previously asked you to please not tell me that you were "pointing out a few facts". ;)

It's law, it's unclear until it has been fully vetted by the courts. And even then they can contradict, overrule and amend themselves to a different place.

B

leekohler
Nov 13, 2009, 02:53 PM
Ugh. I'm all for individuals doing what they want with the software they buy and making Hackintoshes, but what Psystar is doing is just slimy, and they should be stopped.

Apple could put Psystar out of business very easily by offering a mid-range tower. Psystar saw a hole in Apple's line and filled it. If Apple were really that concerned, the solution is simple- give people what they want.

rhett7660
Nov 13, 2009, 05:04 PM
YES YOU DO VOID YOUR WARRANTY. AND it IS their fault by making their hardware difficult if not impossible to do it yourself.

READ:

http://discussions.apple.com/thread.jspa?threadID=2168171&tstart=0

Apple wants you to buy their stuff and FORCES you to use their stores for repair$

Thanks again Apple

Did you even care to read the entire thread???

Maybe you missed this part:

http://docs.info.apple.com/article.html?artnum=13946


Here I will quote it for you and I will highlight it for you too!!!



You may install memory (RAM, VRAM), and other customer-installable parts without voiding your Apple warranty.


Apple's warranty states:

"This warranty does not apply...if the product has been modified without the written permission of Apple..."


Adding memory (DRAM, VRAM) or other user-installable upgrade or expansion products to an Apple computer is not considered a modification to that Apple product. Therefore, it is not necessary to obtain Apple's written permission to upgrade or expand an Apple computer. While Apple strongly recommends that you retain the services of an Apple Authorized Service Provider to perform any product upgrades or expansions, you will not void your Apple warranty if you choose to upgrade or expand your computer yourself. However, if in the course of adding an upgrade or expansion product to your computer, you damage your Apple computer (either through the installation of, or incompatibility of the upgrade or expansion product), Apple's warranty will not cover the cost of repair, or future related repairs.

Warning: Due to the risk of exposure to potentially lethal voltages, you should not under any circumstances separate the plastics of any computer that includes a cathode-ray tube (CRT) in its design, such as the iMac. Only an Apple Authorized Service Provider should separate the plastics of these computers to install an upgrade or make a repair.



Satisfied? Something tells me you won't be..... Even if it comes from the horses mouth.

packgrad2000
Nov 13, 2009, 09:20 PM
YES YOU DO VOID YOUR WARRANTY. AND it IS their fault by making their hardware difficult if not impossible to do it yourself.

READ:

http://discussions.apple.com/thread.jspa?threadID=2168171&tstart=0

Apple wants you to buy their stuff and FORCES you to use their stores for repair$

Thanks again Apple

First of all, if you're going to cite "proof" of something as fact, it's best not to cite another message board. Just lots of opinions like this one. Second of all, the message board you cite in fact supports exactly what I was saying all along: replacing parts that are not considered by Apple as user-serviceable does not void your warranty. Apple just says they're not going to fix it under warranty if you break something while changing out your hard drive (duh...they're also not going to fix your laptop under warranty if you drop it in water). Of course Apple is going to recommend that you bring it into a AASC to get it done, but nowhere does it say in any of its literature that doing so voids your warranty. If it did, they would simply put one of those "WARRANTY VOID IF BROKEN" sticker on the case.

balamw
Nov 14, 2009, 03:34 PM
Goodbye Psystar, here's your hat, there's the door.

http://www.groklaw.net/article.php?story=20091114101637997

Summary judgement for Apple. The whole process is not over yet, but some of the major issues are settled, Psystar is effectively guilty of both copyright and DMCA violations.

B

pdjudd
Nov 14, 2009, 03:43 PM
Goodbye Psystar, here's your hat, there's the door.

http://www.groklaw.net/article.php?story=20091114101637997

Summary judgement for Apple.

B

Might as well add the “Don’t go too far, round two is coming up soon!” - Apple still has 6 claims left that the are asserting against Psystar that (as far as I can tell), they don’t have much of a defense against. That florida trial should go away too since All Apple has to do is file Allsups summary - the case is virtually identical to the California one and is bound to get dismissed.

EDIT: I am sooo looking forward to the usual crowd of Psystar supporters trying to argue that they are still right. Ready for another round of arguments when this hits page 1 balamw?

Edit 2: Wow, Arn is fast, already on Page 1 (http://www.macrumors.com/2009/11/14/apple-wins-judgement-against-psystar-for-mac-os-x-copyright-infringement/)

dvdhsu
Nov 14, 2009, 03:46 PM
Goodbye Psystar, here's your hat, there's the door.

http://www.groklaw.net/article.php?story=20091114101637997

Summary judgement for Apple. The whole process is not over yet, but some of the major issues are settled, Psystar is effectively guilty of both copyright and DMCA violations.

B

Very nice! *High Five*
I like!

Joe The Dragon
Nov 14, 2009, 05:20 PM
The cheapest POS Psystar makes is also $599... and that doesn't include wireless networking, Firewire or Bluetooth which the Mini does.

... but, yes, it would be nice if the Mini were more easily upgradeable.
but the psytar has a faster cpu, MUCH Bigger and faster HDD, much better video card that has it's own ram and pci / pci-e slots.

dvdhsu
Nov 14, 2009, 09:52 PM
but the psytar has a faster cpu, MUCH Bigger and faster HDD, much better video card that has it's own ram and pci / pci-e slots.

I, for one, wouldn't need a faster CPU, a bigger HDD, or try gaming Crysis on it. The difference between the 9400M and the 9400GT isn't that big either, FYI.

You also forgot about the form factor. The Mini is much more pleasing to the eye, and can fit in much more places.

I would rather have a sexier computer, with WiFi, FireWire, and Bluetooth, and the great DDR3 RAM. a

SPUY767
Nov 16, 2009, 01:41 AM
Cheers to Rudy and Robert!

It's about time someone from the Mac "community" tried to find cheaper alternatives to the high priced - low tech hardware that Apple offers!

All you Apple apologists take note of Apple's obscene profits and ask yourself where's the $399 mac?

Where's the $12,999.00 BMW? Dumbest argument ever. Apple manufactures Luxury items. And they do a relatively good job of it what with 90+% of the consumer market of machines priced above a grand.