Apple Wins Judgement Against Psystar for Mac OS X Copyright Infringement

[thatrandomguy]

EULAs are a necessary evil. Software makers need to place restrictions on software use and dissemination in order to make money (unless they have a hardware-tie in - also using the EULA, or they can make money on value added services). Negotiating individual licenses with each consumer is completely impractical.

Lots of contracts are "non-negotiable." When you buy a box of cereal at the grocery store you've entered into a non-negotiable contract, governed by the UCC. Non-negotiable contracts are a fine thing, as long as there is non-monopolistic competition. If I don't like your take-it-or-leave-it contract, I can go to your competitor.

True.

The main issues I have regarding EULAs are:

• First sale(not in Psystar's legally invalid and wildly imaginiative sense). AutoDesk lost a case on this a couple months ago.
• The "revocable license" clauses (which basically say you never really own software. The real life equipment would be that I licensed Frosted Flakes, and that Kellog would be entitled to go into my pantry and take them back without compensating me)
• Anti lawsuit or forced arbitration clauses.

Apple's ruiling was pretty strongly in favor of EULAs in general.

EDIT: Just saying, when everyone does it, it's hard to avoid. AFAIK, there isn't one major US cell phone provider without forced arbitration.

 

[cmaier]

True.

The main issues I have regarding EULAs are:

• First sale(not in Psystar's legally invalid and wildly imaginiative sense). AutoDesk lost a case on this a couple months ago.
• The "revoakablle license" clauses (which basically say you never really own software. The real life equipment would be that I licensed Frosted Flakes, and that Kellog would be entitled to go into my pantry and take them back without compensating me)
• Anti lawsuit or forced arbitration clauses.

Apple's ruiling was pretty strongly in favor of EULAs in general.

I was at a conference by the AutoDesk appeal lawyer the other day. He's confident, FWIW.

Revocation is in there because otherwise it isn't a "license." There is a line of cases that requires terminability in order to find that there's an actual license. Of course, your frosted flakes example makes no sense, because the purpose is to consume them. A better example is when you buy a ticket to the ballgame, they can terminate your license to be there and throw you out if they want.

Forced arbitration clauses are sometimes thrown out due to adhesion, at least.

 

[thatrandomguy]

I was at a conference by the AutoDesk appeal lawyer the other day. He's confident, FWIW.

Well, that IS interesting (not being facetious here ). AutoDesk was bound to appeal. I'm still watching that with interest.

Revocation is in there because otherwise it isn't a "license." There is a line of cases that requires terminability in order to find that there's an actual license.

I'm not saying that terminability is bad. Just the "for any reason" part. Clearly defined boundaries are fine. For instance, Apple says "You can't install it on a non-Apple computer, we can revoke your license if you do so." And I really wouldn't have a problem of that (Apple doesn't offer a computer that I desire purchasing [upgradeable mid tower under 2k]) if I were a Mac user.

However, when every company puts that they have the right to go up to me and revoke my software license for any reason- because I have whatever hair color, because I made a joke about the company, because they drew my name out of a hat... different, in my opinion.

Of course, your frosted flakes example makes no sense, because the purpose is to consume them. A better example is when you buy a ticket to the ballgame, they can terminate your license to be there and throw you out if they want.

Well, I would argue that it DOES make sense, to a degree. You can kick someone out for the remainder of a game, but you can't make them unsee or unvisit the part they attended. Same thing with Frosted Flakes: Kellogg could not make me uneat whatever portion I had already consumed.

Comparing software to the real world can be difficult

Forced arbitration clauses are sometimes thrown out due to adhesion, at least.

This is true.

 

[Pigumon]

So what mistakes did the judge make in your opinion?

Did Psystar not make illegal copies of MacOS X?
Did Psystar not create illegal derivatives of MacOS X?
Did Psystar not circumvent Apple's copy protection for MacOS X?
Did Psystar not enable its customers to infringe against Apple's copyright?



So what do you think is Psystar's motivation?

Actually they did NOT make illegal copies, get your facts straight. Each Psystar came with a legal copy of OSX. Until this ruling, they broke no law.

Now a judge has said the EULA is a legal, binding contract and to break it is illegal. So from now on, Psystar would be breaking the law, but they weren't before this ruling. They were simply ignoring the EULA.

But the main point is still valid. Just like with POWER COMPUTING in the 90's, other companies make similar hardware and charge FAR LESS than Apple. You're all cheering for a monopoly of high prices. Go cheer for MS while you're at it.

 

[harlinator]

Hmm, I think Psystar will be back with OSX compatible hardware and a very easy way to let users install OSX on there. It's like having a Hackintosh but without the research.

Yeah... and you know what?
I WON'T BE BUYING IT!

 

[jb60606]

question: How does Axiotron get away with the "ModBook"? Not that I care... i'm just curious.

EDIT: Nevermind. I just read that the ModBook is an actual Apple MacBook, converted to a pen tablet.

 

[thatrandomguy]

question: How does Axiotron get away with the "ModBook"? Not that I care... i'm just curious.

Well, you probably care if you asked

They take a customer supplied official Macbook and put the innards in a new case after they make some slight hardware mods.

However, the machine internals are genuine Apple, purchased from Apple. So the hardware is properly licensed for OS X.

EDIT: Harumph. Post editing while I'm composing a reply?

 

[SPUY767]

Finally someone said it. Apple's business is a little different from Microsoft people. Both companies are primarily software companies, but Microsoft basically produces software only (along with some coupled devices such as the Zune and Xbox), Apple creates the software and builds and couples hardware to go along with it. Anything that happens to an Apple product your always dealing with Apple rather than being flown all over the place with Windows machines. Apple goes by that "Who Knows This Better Than Its Creator" philosophy. If you are a casual or multimedia user, you will have FAR less problems with a Apple product then you have with a Windows machine.

Apple is not primarily a software company. Everything they do from their pro apps to iTunes is intended to drive hardware sales.

 

[thatrandomguy]

Apple is not primarily a software company. Everything they do from their pro apps to iTunes is intended to drive hardware sales.

It depends on what you mean.

Apple is a hardware company in the sense that they rely on hardware to be profitable & successful. Additionally, the look/sleekness of the hardware helps to sell the brand image.l

Apple is a software company in the sense that they rely on their software to sell hardware.

Really, Apple relies on the whole user experience. Which works for me in some areas (my iPod) and not in others (computers) for me :|

 

[Scottgfx]

Actually they did NOT make illegal copies, get your facts straight. Each Psystar came with a legal copy of OSX. Until this ruling, they broke no law.

To be more accurate; Every Psystar came with a DVD of OSX.

Legal or not, Psystar had installed an altered version onto the hard drive.

Power Computing had a license from Apple to make clones. Yes, they were cheaper. I bought one and had a hell of a time making it work with 3rd party hardware. That Miro DC30 card never worked in the PowerWave 604|120, but worked fine in my Blue & White G3. Same for a 250Mhz 604 card from Power. Wouldn't work in the Power Wave, but worked fine in a PowerMac 9500.

 

[HyperZboy]

Overturned? How and by whom? After Apple's win here it will be much, much harder to do. This case has set quite a precedent.

If no one has noticed, California is the poster child state for decisions being overturned and specifically, the San Francisco area, so I hardly think any definitive precedent has yet been set at all, well, unless Psystar does not have the money to appeal or at least partially win in Florida or elsewhere, which is probable, unless they have a secret benefactor that we don't yet know about.
Most likely Psystar won't last that long, so we'll probably never get a final determination on this until somebody with deeper pockets challenges Apple's EULA and/or the DMCA law. The later of the 2 I particularly despise, since it's so egregious and anti-consumer. But I don't like Apple's EULA either because it's also anti-consumer.

I just don't believe for a second this case is a slam dunk on all counts in Florida, or in Europe or really anywhere outside of Silicon Valley.

If Apple wins completely on all counts across the board, basically we're all criminals.

I still want that mythical Mac mini-tower, but it's clear Steve Jobs will never let that happen.
If this sets a precedent, who's next, the Hackintosh community?

LTD, is there ever a story where you don't take Apple's side?
Someone in another thread suggested that you were infected by Steve Jobs' notorious Reality Distortion Field. Honestly, I'm starting to think you live in Steve Jobs' pants!

 

[HyperZboy]

Power Computing had a license from Apple to make clones. Yes, they were cheaper. I bought one and had a hell of a time making it work with 3rd party hardware. That Miro DC30 card never worked in the PowerWave 604|120, but worked fine in my Blue & White G3. Same for a 250Mhz 604 card from Power. Wouldn't work in the Power Wave, but worked fine in a PowerMac 9500.

You obviously made some bad upgrade choices.
G3 upgrades were much more hardware forgiving from my experience.

My PowerComputing PowerCenter 150 is still working and even ran MacOS X Tiger in fact before I stopped using it. In fact the PowerComputing machine was less buggy than my Beige G3 from Apple! Apple even released 3 different ROM chips (Rev. A, B, & C) to correct problems for those G3 machines because they had so many compatibility problems.

So I disagree that Apple machines have always been more stable or reliable, but then again, that was a very different time and Apple was a company in trouble back then that was making lots of mistakes. However, I'd argue that the clones were not the problem. The problem was Apple was making crappy computers that were overpriced.

 

[Scottgfx]

You obviously made some bad upgrade choices.
G3 upgrades were much more hardware forgiving from my experience.

...The problem was Apple was making crappy computers that were overpriced.

Oh thank you so much for your insight. Perhaps I just bought the wrong computer?

I used one of those beige G3 machines for many years. After one motherboard replacement, it was used for nearly 10 years. Crappy? Perhaps, but it kept going, and the company I work for still has it in mothballs.

That PowerWave I had found a home with a family that didn't demand as much from it as I did. It went on it's way with a 3rd party G3 card.

 

[MattInOz]

question: How does Axiotron get away with the "ModBook"? Not that I care... i'm just curious.

EDIT: Nevermind. I just read that the ModBook is an actual Apple MacBook, converted to a pen tablet.

I think they one of the most public Apple Value Adding Partner just like the guys who colour apple products for you. Effectively they get to buy like any other non-apple shop front then do what they do to make a profit.

 

[RHDJapan]

End user rights

Im happy that the company lost, but only because they did not bother to even do things properly. They should have sold to computers without the software installed just the hack with some UI that prompted the user to insert the install disc as soon as powered up. Then either provided the OS for free with purchase or said use your own copy.

That being said, im sure others feel the same sarcastic joy when i say
Hurray for the further whittling down of personal rights and freedoms in the USA by corporations!!

 

[r.j.s]

That being said, im sure others feel the same sarcastic joy when i say
Hurray for the further whittling down of personal rights and freedoms in the USA by corporations!!

Personal rights and freedoms? What personal rights and freedoms have you lost?

 

[RHDJapan]

Personal rights and freedoms? What personal rights and freedoms have you lost?

I would say to this, its a slope that has now been iced and the question is not which ones have i lost. Its which ones will i loose if this sets a president.

how far will apple go to identify a hackintosh? how far will they go to prosecute anyone who participates in the development of the 86 community?

I think these are valid questions to be considered going forward..

Intellectual property rights can get ridiculous when pushed too far.

 

[MikePA]

Verifiable and true fact, affirmed by this case. He is breaking the law by hackintoshing.

He is not 'breaking the law by hackintoshing' he is violating the EULA. Big difference.

 

[r.j.s]

Intellectual property rights can get ridiculous when pushed too far.

But, when it comes down to it - you don't own the software. You never do. That has never changed.

This ruling doesn't mean Apple will go after individual hackintoshers, that would be too costly (more PR cost than $). It does mean that companies looking to make easy money selling computers preloaded with OS X should think twice about their business model.

 

[rdlink]

Really, Apple relies on the whole user experience. Which works for me in some areas (my iPod) and not in others (computers) for me :|

And here's where so many people get lost on the subject. Nothing in the law says it HAS to work for you. The point is that Apple has decided that it works for them. They sell the license to their products with the stipulation that you must comply with with the agreement in order to use the license. If you don't intend to be bound to their agreement you are then legally bound to walk away, and not buy the license.

There is no inherent, God given right for you to use the license in any way other than what Apple stipulates in the EULA. I think you get this, but many others use the statement that you made above as justification for both the Psystars of the world, and general Hackintoshing.

 

[RHDJapan]

But, when it comes down to it - you don't own the software. You never do. That has never changed.

This ruling doesn't mean Apple will go after individual hackintoshers, that would be too costly (more PR cost than $).

I understand what your saying but just to reiterate here because i think the statement also makes my point,

your basically saying that at the point when it is not too costly for the company then each and every on of us hackintoshers better watch out for our mac phoning home. and at that point i loose my right to "tinker" with products i have legally purchased.

It does mean that companies looking to make easy money selling computers preloaded with OS X should think twice about their business model.

I agree 100%, Im all for business and the execution of legal business models, dont get me wrong.

The EULA is something that i find threatening.

 

[rdlink]

I would say to this, its a slope that has now been iced and the question is not which ones have i lost. Its which ones will i loose if this sets a president.

how far will apple go to identify a hackintosh? how far will they go to prosecute anyone who participates in the development of the 86 community?

I think these are valid questions to be considered going forward..

Intellectual property rights can get ridiculous when pushed too far.

Not quite sure why you think any personal rights are in danger by virtue of this ruling. What slopes have become "iced" exactly? Seems like a pretty clear cut interpretation of sound and established IP law, really.

Bottom line is that Apple has every right, both legally and morally to go after every hackintosher in the world if they want. They're violating the EULA that they agreed to when they opened the package. The likelihood that they will do it is slim. Not worth much financially, and the bad PR is a powder keg. Now if some of those hackintoshers start selling the boxes they're making in their basement, and get some traction it would behoove Apple, both from a legal and a strategic standpoint, to hit them with a C&D letter, and sue if necessary.

As far as your statement about IP rights becoming "ridiculous if pushed too far" I suppose you're right, theoretically. But I can think of absolutely NO ruling in the last several years where a court has upheld IP rights beyond what is legally sound.

In fact, I think the slope is in danger of being tilted in the other direction. Nobody would ever argue with the fact that you're a thief if you came into my garage and stole the car that I bought with my hard earned money. But there are those in the world who think that my right to keep my intellectual property is somehow fuzzier than my right to keep my physical property. Work is work. If I work to earn my physical property I deserve to keep it. If I work to earn my IP I deserve to keep it. The law should protect me voraciously in both instances.

 

[rdlink]

I understand what your saying but just to reiterate here because i think the statement also makes my point,

your basically saying that at the point when it is not too costly for the company then each and every on of us hackintoshers better watch out for our mac phoning home. and at that point i loose my right to "tinker" with products i have legally purchased.



I agree 100%, Im all for business and the execution of legal business models, dont get me wrong.

The EULA is something that i find threatening.

You never had that "tinkering" right that you claim. You didn't buy that right, and there is no divine entity that gives you that right.

If you find the EULA threatening, don't buy the license. It's really that simple. This isn't about Apple. This is about every EULA in the world. The reason they give you the opportunity to read the EULA before being bound by it is so you can decide not to buy the license should you not be agreeable to being bound by the EULA. It's your right to walk away, should that be the case. That's the only right you possess here. Both legally and morally.

 

[r.j.s]

your basically saying that at the point when it is not too costly for the company then each and every on of us hackintoshers better watch out for our mac phoning home.

Possibly, but the ruling states that a EULA is a contract. By breaking the EULA, you are in breach of contract. You might just have to live with the consequences of your actions at some point.

and at that point i loose my right to "tinker" with products i have legally purchased.

You never had that right, and you never owned the product.

Remember, the only product you have legally purchased is the physical disc. You didn't buy the software, and therefore only have the rights granted to you by the owner. If they offer you a contract that says you can only use OS X on Tuesdays, you can either agree or disagree. If you disagree, you are not granted the license. You don't get to disagree with the terms of the contract and use their product however you see fit anyway.

 

[RHDJapan]

Nobody would ever argue with the fact that you're a thief if you came into my garage and stole the car that I bought with my hard earned money. But there are those in the world who think that my right to keep my intellectual property is somehow fuzzier than my right to keep my physical property. Work is work. If I work to earn my physical property I deserve to keep it. If I work to earn my IP I deserve to keep it. The law should protect me voraciously in both instances.

You are arguing that im a thief because i purchased an OS and installed it on the computer i chose to install it on?