First Customer Receives Psystar Mac Clone

[gnasher729]

People keep bringing up the EULA, but I dont think it applies in this case.
I dont see how psystar has violated the UELA, since psystar is not the end user? They are an intermediary, right? The end user did not install the software on non apple branded hardware, they bought it that way. To the End User didn't violate the EULA either. This might be why Apple is keeping quiet. They know they have a loophole on their hands.

People keep bringing up the EULA, and you are right that it applies in this case. Your conclusion, however, is wrong.

The EULA is an end user license. End users can for example buy Leopard, install it on a computer, and next year, or any time later, sell their computer with the copy of Leopard. Psystar is not an end user. They have no permission from Apple to sell Leopard. Unlike say Amazon, who sell lots of copies of Leopard, but with Apple's permission.

Copyright law gives the copyright owner several rights, and one of those is the sole right of distribution. "Distribution" is different from the right that the end user has through the "First Sales Doctrine". As an end user, you have the right to sell the copy of Leopard that you bought. But if you try to buy Leopard as a reseller, you can only do that if Apple explicitly gives you a license to do so.

 

[NC MacGuy]

I haven't read anywhere but does this thing come with a boxed copy of Leopard? I know it can't be installed w.o. hacks but I was just curious.
I don't think it does but could be wrong.

Well, first machine in the wild. Let the party begin.

 

[Santa Rosa]

Psystar appears to buy a Mac OS X Leopard for each machine they pre-install. They charge you for Leopard separately.

arn

"I wonder (if this is real) did they ship out the Leopard packaging?"

EDIT Above: Beaten To It

If not then they may just be using the same copy repeatedly and just pulling in the takings for people who config it with Leopard?

I personally dont like the whole thing at all. Something like this that isnt clear cut obviously has something dodgy going on. I really dont see also how the advantages of this machine outweigh the advantages of a proper genuine Mac???

 

[teknikal90]

$20 says apple wont do anything.
psystar is too insignificant to bother with
and theyre not doing anything thats not already being done.theyre just putting it under a spotlight
finally, theyre not a threat in anyway.you buy mac for reliability and styling.the open mac gets neitehr of those...yeh sure you get mac os.....but no support?
if it was...say dell ..who did this...then apple wouldve done something...
the fact that apple hasnt done anything by now also reinforces my argument.im sure there are a few apple market researcher roaming around the net right now...perhaps a few on macrumors,9to5mac etc...they know psystar exists...

 

[Takeo]

If Apple cared they would have said something by now. Most likely they figure it's not worth the effort. I mean... the thing will be bricked anytime an OS update comes along. So who cares? Apple most likely figures that the marketplace will take care of them. They're just gonna wait for the company to self-destruct.

 

[Rendwich]

I've seen no definitive judgment that EULAs are unenforcable. If such a judgement had been made, we would have seen them disappear from installers.

The original poster was claiming the OPPOSITE of what you are claiming. Read his text. He said "courts have generally held that EULAs are enforceable" or something so close it doesn't matter.

You're not even claiming what the poster was claiming. You're saying "courts haven't established that EULAs are unenforceable." It's not the same thing, and you should be able to see that.

Every court case I've seen involving EULAs where the EULA 'breacher' dealt solely with the legality of one or more provisions within the EULA, not the notion of an EULA itself.

This is complete, total and utter nit-picking. When courts throw out particular provisions of a EULA, they are degrading the validity of the EULA as a whole. As more and more provisions are disregarded, the concept is more and more degraded. At some point, the core EULA provisions are will be/have been discarded. It doesn't have to happen all at once.

Licences are not unusual. Licences are simply an expression, within the framework of Copyright Law, of what a receiver of a work may do with that work. The GPL states that if I modify a work and distribute the result, I must make available, for free, my modifications. Licences for other software, such as the Mozilla Public Licence have clauses which define what I may or may not call any self-compiled version of Mozilla software. If I compile Firefox myself, I cannot call it Firefox or use the Firefox artwork if I distribute it. Apple's licence says I can't run OS X on non-Apple hardware.{/QUOTE]

There is only one agreement when I use the GPL or MPL. There is only one agreement when I use OS X. That is the SALE. I spend money, I get a receipt and a disk. END OF AGREEMENT.

Traditionally, licences must be signed or agreed to within the presence of others. But computer software has pretty much bypassed that. Hence the practice of 'use of this software constitutes agreement to the terms...' -- and you'll find that (or similar) everywhere from the OS X EULA to the GPL. In the past EULAs have caused problems with the return of software. It's vitally important to the legality of a licence that, should the receiver disagree with the terms, he or she must be able to reject the licence and forfeit use of the work without detriment to him/herself. For example, having the EULA inside a product shrink-wrap, where the seller will not accept the returned item once the seal's broken puts the buyer in a Catch-22. It is, of course, not fair to require acceptance of an EULA if return of the product is impossible without penalty.

No, the law is very simple and very clear on this matter, which is why no EULA has ever been enforced in the US. The agreement is made when I pay for the product and they provide the product. Nothing inside the product can change that agreement. I cannot purchase a product ONLY TO FIND LATER that the company is claiming I "licensed" the product.

That's why all legitimate leases are SIGNED BY BOTH PARTIES before any money changes hands. Once the money changes hands, we cannot THEN SIT DOWN and discuss what was acutally purchsed and the terms of the sale. A sale is a sale.

This is the blatantly obvious and fundamental difference between the GPL and a EULA. Buying something is a well-understood legal agreement for as long as the US has existed. Products we use under the GPL are not sold. They are free.

If Apple wants to mail me a legally binding lease agreement, have me sign it, and then mail me a copy of Steve Job's signature on the agreement before they accept my payment, then no problem. But it's totally fraudulent to accept my cash payment without comment, issue me a product and a receipt, and THEN claim I have not made a purchase. Illegal and criminal.

Which is why no EULA will ever stand in court. A jury can see this in five minutes. Kids have been saying, "You can't go back on a deal" since they were six years old.

 

[displaced]

There's one computer in Apple's entire product line which actually HAS a video card. And it costs over $2000.

This isn't a legitimate example, unless you're trying to demonstrate why PsyStar is flooded with orders. A shoddy company with amateur PR, amateur practices, yet flooded with orders.

You've misunderstood me. I'm making no comment at all on whether Apple's current product line meets every desire of every market. I don't care if you need to pay > $2000 for a user-replaceable video card. If that is one of the requirements you have in a computer, you need to look elsewhere. If you need a cheap machine whose video card can be upgraded, you cannot buy one from Apple. But then, Apple's under no obligation to make a machine to your or my specifications.

I mentioned the video card and other parts purely in relation to what constitutes an Apple-branded machine (that was the point I was replying to).

 

[gnasher729]

I don't think the no-upgrade thing will deter hackers at all. It's pretty easy to print out some instructions and patch the machine. The real deterrent up to now was to build your own machine, much like the lifehacker-guys or the macworld-ones did. And Psystar presents a nice attractive package at an affordable price.

Now that i would call nonsense. Nobody has to build their own machine to install MacOS X on it. There are dozens of companies that sell computers that can run MacOS X (if you are one of those who find it pretty easy to print out some instructions and patch the machine).

If you compare buying lets say a Toshiba, Acer, Dell, HP or similar computer to buying a Psystar: With the first four companies you know what you get. You have warranty and you know they will fix problems. You know there will be others that can help you. And one important thing: If you buy a Toshiba, you can be sure that you will not get a letter from an Apple lawyer a few months down the road.

 

[asdavis10]

well, do people update their Macs because they have to, or because they can?
It's not like OS X comes out of the box in serious need for patching, does it?

Another idea: the same way people are running Windows Vista/XP as a secondary OS on a Macbook, even if the powersaving functionality is imperfect, someone buying a Mac clone can well be thinking of using OS X as the secondary part of their dual boot setup. It won't be because of running Safari, games or iTunes, but probably some other Mac specific app they are really keen on. Or maybe people are curious and that gets Apple a few more sales of OS X licenses. who knows?

For most people, a Mac will run perfectly fine right out of the box (as will most Windows PC's). Updates are released that have critical bug fixes (such as the recent patches to Safari and QuickTime) and not so critical fixes (such as the 'Translucent Menu Bar' option in 10.5.2). And most people would be fine even without the critical patches as the chances of your system being randomly hacked by someone are slim to none. IMHO, the issue with Psystar (other than the breaking of Apple's EULA) is that they are selling a hobby box to non-hobbyists and branding it as a viable Mac alternative. The people that are likely to buy this machine are going to think that they are getting the Mac that they hear their friends talking about at a substantially reduced price. Yes some techies will buy this too and be able to work around the fact that an update to this system will break the OS. But if you have the knowledge to do that, why not build your own Hackintosh? I just think that buying a system that can't be updated is pointless. As for the issue with people running Windows on a Mac, that is completely different. Microsoft doesn't care who buys their product and for what reason. They are a software company. They have to sell their OS to everyone because they have no specific hardware platform to push. Apple on the other hand is a hardware company. They use their OS to sell hardware.

 

[gnasher729]

Some of you seriously need to look into the history and uses of EULAs before commenting on them. EULAs are not a contract between Apple and you that gives them some kind of overlord-like power over anyone with one of their products (although it's curious to see many of you implicitly hoping for that on one hand; I wonder how many of you denounced Microsoft when they have attempted that kind of thing in the past.)

The EULA is primarily a tool that a software company uses to head-off piracy and copyright infringement. Not only have the contractual legality of EULAs been successfully shot down in court, but it has been generally agreed that where EULAs overstep their legal bounds is where they attempt to control what an end-user may do with their software where it doesn't involve copyright infringement or piracy.

If Psystar is paying Apple for the copy of OS X they install on their hardware then no piracy is happening and no amount of prayer to your EULA gods is going to stop them.

What part of the "End User" in "End User License Agreement" is so hard to understand? Psystar is not an end user. They have no right at all to resell Leopard. And they have no right at all to induce their customers to breach a license in order to compete with Apple.

 

[christian_k]

I've seen no definitive judgment that EULAs are unenforcable. If such a judgement had been made, we would have seen them disappear from installers.

No.

Since the beginning of VHS virtually every VHS tape you could by or borrow had a text message at the beginning, roughly: "You are not allowed to take copies of this for any purpose.".

At least here in Germany the legal situation was clear, provided the original was legitimate and the copy was used only for private use, you were allowed to take the copy. For a long time it was also legal to bypass copy protection systems to do that.
So the message on the screen was plain wrong, and many times companies failed to enforce that in courts. But the messages never disappeared and survived even into DVD age.

I think the reason they continued to do this was to "educate" customers in some way. Because people had seen this a thousend times they started to believe this was a legal fact and so it probably prevented a lot of copies (that would have been fully legal).

 

[displaced]

The original poster was claiming the OPPOSITE of what you are claiming. Read his text. He said "courts have generally held that EULAs are enforceable" or something so close it doesn't matter.

You're not even claiming what the poster was claiming. You're saying "courts haven't established that EULAs are unenforceable." It's not the same thing, and you should be able to see that.

Absolutely. I'm not deliberately arguing what should be, I'm trying to establish what is. Courts have struck down provisions in EULAs. In other words, providing a licence after the moment of sale is apparently OK by the courts, but the provisions within the EULA must not be unfair according to law.

This is complete, total and utter nit-picking. When courts throw out particular provisions of a EULA, they are degrading the validity of the EULA as a whole.

No. You're confusing the concept and the content. The law is particular like that.

There is only one agreement when I use the GPL or MPL. There is only one agreement when I use OS X. That is the SALE. I spend money, I get a receipt and a disk. END OF AGREEMENT.

Incorrect. If you buy a 'work' of any kind from another person, you are subject to copyright. Copyright is implicit in all works. The owner, in the case of literary and software works does not even have to explicitly claim copyright. As long as they can prove themselves as the owner, they get to decide how their work is used and distributed, with the proviso that fair use is respected.

No, the law is very simple and very clear on this matter, which is why no EULA has ever been enforced in the US.

Incorrect.
http://en.wikipedia.org/wiki/ProCD,_Inc._v._Zeidenberg and, indirectly:
http://en.wikipedia.org/wiki/Arizon...sociation_Inc._v._Lexmark_International_Inc.#

The agreement is made when I pay for the product and they provide the product. Nothing inside the product can change that agreement.

I cannot purchase a product ONLY TO FIND LATER that the company is claiming I "licensed" the product.

That's why all legitimate leases are SIGNED BY BOTH PARTIES before any money changes hands. Once the money changes hands, we cannot THEN SIT DOWN and discuss what was acutally purchsed and the terms of the sale. A sale is a sale.

I see your position, but licencing of software is as old as software itself...

This is the blatantly obvious and fundamental difference between the GPL and a EULA. Buying something is a well-understood legal agreement for as long as the US has existed. Products we use under the GPL are not sold. They are free.

That is again untrue. The GNU organisation even have a web page dedicated to selling GPL-licenced software here

If Apple wants to mail me a legally binding lease agreement, have me sign it, and then mail me a copy of Steve Job's signature on the agreement before they accept my payment, then no problem. But it's totally fraudulent to accept my cash payment without comment, issue me a product and a receipt, and THEN claim I have not made a purchase. Illegal and criminal.

You have made a purchase. You've purchased a licence to use the software. After purchase, you have purchased the ability to run that software legally, under whatever terms the copyright holder decides. Should you find the terms unacceptable, you are free to return the product.

Which is why no EULA will ever stand in court. A jury can see this in five minutes. Kids have been saying, "You can't go back on a deal" since they were six years old.

Sadly reality isn't like that. EULAs have stood up in court, both as implementations and as a concepts. Specific clauses have been rejected, but the same can happen to any other form of licence or contract should the clause be unfair -- that's not a flaw in EULAs themselves.

Since the beginning of VHS virtually every VHS tape you could by or borrow had a text message at the beginning, roughly: "You are not allowed to take copies of this for any purpose.".

At least here in Germany the legal situation was clear, provided the original was legitimate and the copy was used only for private use, you were allowed to take the copy. For a long time it was also legal to bypass copy protection systems to do that.
So the message on the screen was plain wrong, and many times companies failed to enforce that in courts. But the messages never disappeared and survived even into DVD age.

I think the reason they continued to do this was to "educate" customers in some way. Because people had seen this a thousend times they started to believe this was a legal fact and so it probably prevented a lot of copies (that would have been fully legal).

Of course

My 'they'd disappear...' comment was a bit flippant! But throughout my comments, I've made clear that EULA's (and indeed licenses in general) are an expression of the wishes of the creator within the framework of copyright law. Copyright law includes terms for fair use, which the message on VHS tapes disregards. So, that clause of an EULA would be invalid assuming the copy owner was within fair use.


Just for clarity -- I believe running OS X on non-Apple machines is within fair use for an individual. I've never said anything else. Reselling OS X with modifications is clearly not fair-use.

 

[BenRoethig]

Some mac users aren't used to desktops using desktop hardware

And others aren't used to their "desktops" using laptop hardware and being installed in the back of a cinema display which is why this little experiment exists.

 

[BenRoethig]

Apple already knows how the crack works... and if they protect the system even more it will not run even on a real mac
It was stated from Netkas... a hacker who made EFI emulator...

The real difference from a mac and PC is EFI and nothing more... ok if you leave the design out

And since it is an open standard, it could be used for windows PCs as well, if Remond ever learns how to move past the 80s.

 

[twoodcc]

we need some benchmarks or something.

i wonder what apple will do about this, besides keep it from software update?

 

[kornyboy]

Wirelessly posted (iPhone: Mozilla/5.0 (iPhone; U; CPU like Mac OS X; en) AppleWebKit/420.1 (KHTML, like Gecko) Version/3.0 Mobile/4A102 Safari/419.3)

I guess it's not a hoax. It will be interesting to see how they support it.

 

[Porco]

I'm no blind fanboy, but my take on it is that left unchecked, clones could quite easily steal real money from OS X development and make higher prices + stupid Windows-style activation far more likely. So I hope Psystar and others like them fail.

 

[BenRoethig]

we need some benchmarks or something.

i wonder what apple will do about this, besides keep it from software update?

Hopefully listen for a change.

 

[crockett]

"I wonder (if this is real) did they ship out the Leopard packaging?"

EDIT Above: Beaten To It

If not then they may just be using the same copy repeatedly and just pulling in the takings for people who config it with Leopard?

I personally dont like the whole thing at all. Something like this that isnt clear cut obviously has something dodgy going on. I really dont see also how the advantages of this machine outweigh the advantages of a proper genuine Mac???

I looked into building a hackintosh myself but I need the machine for business so it didn't seem like a viable solution. If I was just doing it to use for surfing the net or what ever then I'd likely try it for a test project.

Overall I'm not a big fan of these clones, because I think the OS will run buggy and not everything will work. Then every update will likely bring new problems. On the flip side, if Apple offered their OS in a PC friendly version, then I'd buy it in a heartbeat vs buying windows.

 

[tallyho]

And others aren't used to their "desktops" using laptop hardware and being installed in the back of a cinema display which is why this little experiment exists.

Yes, but my iMac doesn't make a noise like a vacuum cleaner going full blast. Would any one really trade a faster video card for an unusable day to day computing experience...? (wonder if they supply ear plugs with it)

 

[jblodgett]

I must be in an extreme minority, but I think this "Open Computer" concept is awesome! Nobody buys a Mac computer for its hardware.

The day I can just go into my local wal-mart and buy the Mac OS to install it on whatever computer I deem necessary will be a great day indeed.

 

[Rendwich]

Just for clarity -- I believe running OS X on non-Apple machines is within fair use for an individual. I've never said anything else. Reselling OS X with modifications is clearly not fair-use.

Apple's EULA completely forbids what you claim is "within fair use". So after all your defense of EULAs, you are openly stating that Apple's EULA violates the rights of the end-user. Which "you" am I supposed to believe?

You also claim that buying OS X is "buying a license". That's totally ridiculous. NOWHERE on the packaging or advertising does it indicate I am buying anything except an operating system. And I am BUYING it. Not leasing it. Can you imagine paying for any other product and THEN being notified that you don't own the product, only a "license" to use the product, which still belongs to the company?

Any other company which tried that would be legally destroyed.

And yes, I do understand copyright law. My ownership of my car doesn't allow me to produce an exact copy and sell it for my own profit. That's why it's called "copy right" - the right to make copies. PsyStar isn't maufacturing any copies of OS X.

 

[Foxglove9]

Looks good if you know what you are doing if something goes wrong. But if you know that much about things, then you would just build one on your own and save a few bucks.

Still for that price it would be great to mess around with. My roommates built one almost 2 years ago and it was very stable and blew away my Powermac G5 to pieces.

But the whole software updating is a big pain, and enough to turn me away from using it as a main computer.

 

[jodelli]

Throughout the first screen of the boot sequence, this is a legit PC with a fairly standard BIOS. The BIOS appears to be configuring the hardware for the entire first screen of text. It's difficult to read though.

By the second boot screen, still in text mode, the computer has switched to the EFI and begun to boot Darwin.

Then the third, and white Apple screen appears.

Just my observation, no more, no less.

 

[masse]

For the love of God Apple will not be bricking the psystar's with a software update. Did nobody read the part where the psystar's can't do software updates?

I really hope they are successful.