Poll: Apple is suing Psystar (Mac Clone maker). Who do you want to win?

[Clive At Five]

Man, all the elitism on this board is enough to make you sick!

Re EULAs: EULAs can only be upheld in court if they don't break any laws themselves. Apple's EULA is obviously anti-competitive because Apple is Tying OS X to their hardware. Those who say I'm wrong, read up:

Under "Anti-Competitive Practices," find "Tying"...

Tying is the practice of making the sale of one good (the tying good) to the de facto or de jure customer conditional on the purchase of a second distinctive good (the tied good). It is often illegal when the products are not naturally related

You can buy OS X... but you have to also buy a Mac to use it.

Fanboys will argue that Apple's hardware and software ARE naturally related. *facepalm* Sorry to break your little hearts, but 97% of the hardware used inside your precious iMac is identical to the hardware found in off-the-shelf components. The only difference is the motherboard, which is still based on the same Intel-provided templates used by all other motherboard manufacturers.

Learn the facts, people. If you don't know the truth, don't pretend. It only makes you look foolish.

-Clive

 

[rKunda]

quoting Wikipedia doesn't exactly qualify as knowing the facts. Cute try, though. Even if someone ceded your point about tying, that's still not greatly relevant to what was done here with Apple software.

That's like saying I can use technology build into a BMW engine and resell of because BMW is trying to the their engine tech to their car. If you want to challenge that, the best method isn't this.

 

[Clive At Five]

quoting Wikipedia doesn't exactly qualify as knowing the facts. Cute try, though. Even if someone ceded your point about tying, that's still not greatly relevant to what was done here with Apple software.

Wikipedia has been shown to be extremely accurate on descrete topics such as science and laws, but if you don't believe me, do your own research and come back here with your results. I'm certain you'll find the same definition I did.

That's like saying I can use technology build into a BMW engine and resell of because BMW is trying to the their engine tech to their car. If you want to challenge that, the best method isn't this.

ANALOGY FAIL!!!

A) There is no law forcing manufacturers to sell parted-out pieces of a greater unit. Thusly, BMW doesn't have to sell stand-alone engines to anyone. B) Even if they did, they would not be allowed to force the end-users to install it in a BMW body. Likewise, Apple cannot legally force an end-user to install OS X in an Apple "body" so to speak. That portion of the EULA is thereby void and therefore an end-user cannot be prosecuted for installing OS X in generic hardware.

-Clive

(BTW this post is not to be seen as an argument for the innocence of PsyStar. Their redistribution of *modified* copyrighted work is illegal and their breaking of EULA on behalf on an end-user without consent is shady at best - though I don't know if any law about this actually exists...)

 

[matticus008]

Wikipedia has been shown to be extremely accurate on descrete topics such as science and laws

It has not. It is, at its best, an amateur, encyclopedia-level treatise on any given topic.

Likewise, Apple cannot legally force an end-user to install OS X in an Apple "body" so to speak.

"Analogy fail!" They can't force you to put the disc only in a certain manufacturer's drive. They are not required to license their software at all, let alone to competitors.

You'll note that platform and preexisting license prerequisites are common and legal. Take for instance a Microsoft upgrade license, or install media for site licenses.

That portion of the EULA is thereby void and therefore an end-user cannot be prosecuted for installing OS X in generic hardware.

And you're the one who talked about elitism...presenting a conclusory and invalid statement based on your non-expert knowledge.

Re EULAs: EULAs can only be upheld in court if they don't break any laws themselves. Apple's EULA is obviously anti-competitive because Apple is Tying OS X to their hardware.

Obviously? Try again.

You can buy OS X... but you have to also buy a Mac to use it.

That's not tying. Tying would be selling OS X if you buy a Mac at the time of purchase. Armchair lawyers drive me nuts.

Did you even read the selection you quoted? "It is often illegal when the products are not naturally related."

There are four problems with your conclusion. First, the tying argument only applies to the purchase of a Mac (which comes with OS X whether you want it or not), and only tenuously. Second, the statement made by Wikipedia is "often" (not "obviously). Third, the products are naturally related (hint: it's a term of art). Fourth, it's Wikipedia; please consult case law on the matter.

The closest thing to support you've got is the Nova decision, and that was tying to a third-party's product, which is illegal.

If you don't know the truth, don't pretend. It only makes you look foolish.

Indeed, sir.

 

[ihabime]

Learn the facts, people. If you don't know the truth, don't pretend. It only makes you look foolish.

Yes because your use of fanboy, *facepalm* and the big red FAIL!!, makes you sound absolutely brilliant.

If you'd have include two more sentences in the quote from wikipedia you'd have come on the concept of freebie marketing.

Tying is related to Freebie marketing, which was pioneered by King C. Gillette and is a common (and legal) method of giving away (or selling at a substantial discount) one item to ensure a continual flow of sales of another related item (for example, the disposable safety razor).

That sounds quite a bit like apple and OSX, the OS is included with the computers they sell, then they sell newer versions for use with their hardware. Of course you'll argue that $129 is certainly not a discount price, but compared to the only other widespread commercial OS, it's somewhat less than the $199 MSRP of the Home Basic version and substantially less than the $319 MSRP for the Ultimate version, for which the features seem more comparable. I assume that you'll still allow Apple the right to determine the price of its own operating system, or is that anti-competitive too?

 

[Clive At Five]

It has not. It is, at its best, an amateur, encyclopedia-level treatise on any given topic.

*cough*

"Analogy fail!" They can't force you to put the disc only in a certain manufacturer's drive. They are not required to license their software at all, let alone to competitors.

I never said Apple was obligated to sell or "license" their software. Fact, they'd probably be off the hook if they didn't.

You'll note that platform and preexisting license prerequisites are common and legal. Take for instance a Microsoft upgrade license, or install media for site licenses.

There have been more and more cases backing that companies can't "license" their software but are instread selling a copy of it, so the "license" argument is on shaky ground.

And you're the one who talked about elitism...presenting a conclusory and invalid statement based on your non-expert knowledge. That's not tying. Tying would be selling OS X if you buy a Mac at the time of purchase. Armchair lawyers drive me nuts.

And unless you're actually a laywer you have no room to make such a comment.

Did you even read the selection you quoted? "It is often illegal when the products are not naturally related."

There are four problems with your conclusion. First, the tying argument only applies to the purchase of a Mac (which comes with OS X whether you want it or not), and only tenuously. Second, the statement made by Wikipedia is "often" (not "obviously). Third, the products are naturally related (hint: it's a term of art). Fourth, it's Wikipedia; please consult case law on the matter.

I don't understand how you find them naturally related... will OS X run on third party hardware? YES! Can third-party OSes be used on Apple's hardware? YES! The only thing relating them is their brand... but in all reality, they can exist peacefully without one another.

That being said, it seems obvious to me Apple is trying to tie OS X to their hardware with OS X's EULA... does it not to you?

-Clive

 

[rKunda]

Clive,

The BMW analogy didn't fail. The failure was your inability to grasp the argument. If BMW had required (justly or not) that you use their engine technology only on their cars, that still would not justify you stealing their technology even if you thought the end result was fair, or that you were being wronged somewhere else.

If I took your newspaper, you would be hard pressed to convince someone that this legally justified you to start a fire with a newspaper you stole from me. The issue isn't mainly the taking of the newspaper, it's the fire. Apple's software policy doesn't justify lifting their software.

 

[Scooterman1]

Psystar.

I believe in Choice.

The more choices, the better.

 

[ihabime]

I don't understand how you find them naturally related... will OS X run on third party hardware? YES! Can third-party OSes be used on Apple's hardware? YES! The only thing relating them is their brand... but in all reality, they can exist peacefully without one another.

That doesn't make them unrelated either. Apple has always stated that the OSX is made to run on Apple hardware, it says so on the box, in the EULA and in every public statement Apple has ever made on the subject, they've never sold it for other hardware. No where does it state that it has to be an exclusive relationship. Certainly the fact that they make the OS only for the expressed purpose of selling their hardware implies a rather strong relationship.

That being said, it seems obvious to me Apple is trying to tie OS X to their hardware with OS X's EULA... does it not to you?

It's obvious to everyone, Apple itself clearly states it, but that does not make such tying illegal. Your own links state that not all tying is illegal. I know you dismiss all these high falutin legal citations as elitist, but I'll give you another one anyway, Susser v Carvel corp.

Several of Carvel's franchisees sued over their franchise agreement which licensed Carvels intellectual property, (in this case the Carvel trademark), and required them to purchase supplies only from Carvel appointed suppliers. Carvel's defense was that "The arrangements were necessary to protect the integrity of the product".
The court sided with Carvel stating that for the tie in to be illegal, "there must be both market dominance and the affecting of a substantial amount of commerce"

This case clearly shows that Tying by itself is not illegal and that even though the ice cream could be made with no Carvel ingredients or that Carvels ingredients could be used to make other ice cream, there was a natural relationship between the two, because Carvel felt the relationship was necessary to protect the integrity of it's product.

Strange that Apple cited brand integrity in it's complaint, you have read that, haven't you?

 

[matticus008]

*cough*

Sigh. Encyclopedia Britannica is also an encyclopedia (thus "amateur, encyclopedia-level"), not a legal resource. Even professional legal encyclopedias are not conclusive resources.

There have been more and more cases backing that companies can't "license" their software but are instread selling a copy of it, so the "license" argument is on shaky ground.

No. There have been no such cases.

I don't understand how you find them naturally related... will OS X run on third party hardware? YES!

Again, 'naturally related' is a term of art. Until you figure out what that means, there's no point in proceeding.

but in all reality, they can exist peacefully without one another.

Can != must.

That being said, it seems obvious to me Apple is trying to tie OS X to their hardware with OS X's EULA... does it not to you?

Like a monopoly, tying is not itself illegal. Also, unlike tying, Apple's software is for sale for their own hardware. This is not anticompetitive where substantially similar alternatives exist. You are not required to use OS X, nor do you have an intrinsic right to use OS X.

As you say, the hardware is more or less identical to others. This argument works against you, only you don't know it because you're relying on a poor understanding of a poor resource.

 

[Linh_My]

Or in other words, you want Apple's ownership of its copyrights, licenses, patents and the platform in general to be eroded by lawyers and opened up...

While I actually have sympathy for Apple on this one, I believe that the copyright/patent/EULA restrictions on shrink wrapped software in general are too restrictive. Just because we like Apple doesn't mean that we should ignore the benefits that a Psystar defeat will have on companies like Microsoft in maintaining monopolies.

 

[Clive At Five]

Clive,

The BMW analogy didn't fail. The failure was your inability to grasp the argument. If BMW had required (justly or not) that you use their engine technology only on their cars, that still would not justify you stealing their technology even if you thought the end result was fair, or that you were being wronged somewhere else.

If I took your newspaper, you would be hard pressed to convince someone that this legally justified you to start a fire with a newspaper you stole from me. The issue isn't mainly the taking of the newspaper, it's the fire. Apple's software policy doesn't justify lifting their software.

Nice try at a slam there... but do me a favor and reread what you originally wrote. Grammar mayhem. A little proofreading goes a long way.

Your analogy still fails because I assume that BMW has patented any distinct technologies their engines feature and others don't. If you copied that technology and sold it as something else, of course that isn't just. I see your attempt at a connection with Psystar, but that's not what's being discussed. We're talking about a user's right to install an operating system being sold on the market on the hardware of his/her choice.

Try again.

That doesn't make them unrelated either. Apple has always stated that the OSX is made to run on Apple hardware, it says so on the box, in the EULA and in every public statement Apple has ever made on the subject, they've never sold it for other hardware. No where does it state that it has to be an exclusive relationship. Certainly the fact that they make the OS only for the expressed purpose of selling their hardware implies a rather strong relationship.

My copy of Leopard doesn't have an EULA on the box...

Besides, I think we've all learned Apple blindly blankets their EULAs that way after the whole Safari for Windows issue... If you'll recall, Safari for Windows could only be installed on Apple-labeled computer. lol.

It's obvious to everyone, Apple itself clearly states it, but that does not make such tying illegal. Your own links state that not all tying is illegal. I know you dismiss all these high falutin legal citations as elitist, but I'll give you another one anyway, Susser v Carvel corp.

Several of Carvel's franchisees sued over their franchise agreement which licensed Carvels intellectual property, (in this case the Carvel trademark), and required them to purchase supplies only from Carvel appointed suppliers. Carvel's defense was that "The arrangements were necessary to protect the integrity of the product".
The court sided with Carvel stating that for the tie in to be illegal, "there must be both market dominance and the affecting of a substantial amount of commerce"

This case clearly shows that Tying by itself is not illegal and that even though the ice cream could be made with no Carvel ingredients or that Carvels ingredients could be used to make other ice cream, there was a natural relationship between the two, because Carvel felt the relationship was necessary to protect the integrity of it's product.

Strange that Apple cited brand integrity in it's complaint, you have read that, haven't you?

Of course it makes sense to be able to license a trademark to be used along with your product... but if they had tried to mandate that the distributors used a certain carton that only Carvel supplied, that would be a different story...

There have been no such cases.

From the site you give no credibility: "The law is not clear on what an end-user's rights are when confronted by a clickwrap or other type of proprietary software license agreement on a copy of software owned by the end-user. Clearly the end-user will be bound by any agreements he/she voluntarily enters into. What is not clear is what, if any, rights the end-user retains if the terms of the license agreement are rejected. In terms of open source licenses, the end-user clearly retains the right to use the software if the license is rejected, since ownership of the software is not disputed. With proprietary licenses, where the software publisher claims to retain ownership of the software, this is an area of ongoing dispute."

So, the rights of users who wish to reject an EULA is an area of dispute.

Again, 'naturally related' is a term of art. Until you figure out what that means, there's no point in proceeding.

Can != must.

Like a monopoly, tying is not itself illegal. Also, unlike tying, Apple's software is for sale for their own hardware. This is not anticompetitive where substantially similar alternatives exist. You are not required to use OS X, nor do you have an intrinsic right to use OS X.

As you say, the hardware is more or less identical to others. This argument works against you, only you don't know it because you're relying on a poor understanding of a poor resource.

A) I'm not going to go on some wild chase for an art-terminology question. I did a quick google, nothing showed up. If you want me to know, you're going to have to tell me.

B) No "can" doesn't equal "must" but it DOES mean that OS X and Apple hardware aren't bound to each other in all absolution.

C) No I'm not required to use OS X, but if I can buy it off the shelf, I have a right to use it. I also have a right to reject the EULA if I so choose.

D) Identical hardware gives strength to the argument that Apple's computers are no different than other computers, and therefore the tying of OS X to Apple's units is completely unnecessary, technologically. It's entirely artificial and only exists to ensure that Apple snags the hardware sale as well.

E) Most importantly, you forgot to admit that you're no a real lawyer either, so you're no better than I when it comes to disputing the legality of this.

-Clive

 

[MacBook Xeon]

I forgot where it said on the EULA, but it said "Mac OS X can only be installed on apple branded hardware".

what we did in the OS X86 scene, we took the ipod apple stickers and put them on out computer. There. Apple branded

 

[MacBook Xeon]

deep inside i would like pystar to win because people should have affordable macs, but when i actually look at the case i voted apple because they are stealing their software

thats why we have OS X86. Nobody should be profiting from the OSX86 devs' work. its available for everybody to do themselves.

aww crap. sorry for the double post.

 

[ucfgrad93]

I'm hoping that Apple wins this case.

 

[ihabime]

My copy of Leopard doesn't have an EULA on the box...

And what I wrote was :

That doesn't make them unrelated either. Apple has always stated that the OSX is made to run on Apple hardware, it says so on the box, in the EULA and in every public statement Apple has ever made on the subject, they've never sold it for other hardware.

Notice the commas, my copies of OSX going back to jaguar all have "a macintosh computer" printed under system requirements on the side of the box.

Of course it makes sense to be able to license a trademark to be used along with your product... but if they had tried to mandate that the distributors used a certain carton that only Carvel supplied, that would be a different story...

Again, read what was written and linked, what was allowed was even more extreme. Carvel made no end product in that case, everything was made by the franchisees with ingredients they purchased. Carvel was allowed to contractually tie which ingredients to be used and which specific dairy farms and sugar producers the franchisees could purchase from, not just the quality of the ingredients and none of it was made or distributed by Carvel. That's certainly a much more tenuous relationship than making both the IP and the product as in Apples case.

From the site you give no credibility: "The law is not clear on what an end-user's rights are when confronted by a clickwrap or other type of proprietary software license agreement on a copy of software owned by the end-user. Clearly the end-user will be bound by any agreements he/she voluntarily enters into. What is not clear is what, if any, rights the end-user retains if the terms of the license agreement are rejected. In terms of open source licenses, the end-user clearly retains the right to use the software if the license is rejected, since ownership of the software is not disputed. With proprietary licenses, where the software publisher claims to retain ownership of the software, this is an area of ongoing dispute."

So, the rights of users who wish to reject an EULA is an area of dispute.

You didn't bother to provide a link to that page, so I will :
http://en.wikipedia.org/wiki/Software_license

Notice that the whole section containing your quote has no citations, no attributions, no footnotes what-so-ever. That means it simply the opinion of whoever wrote it and in the case of wikipedia that could mean anyone. Wikipedia can be accurate when it includes citations, otherwise you have no way of verifying its content.

That's why I have been using citations from actual court decisions and case law.

B) No "can" doesn't equal "must" but it DOES mean that OS X and Apple hardware aren't bound to each other in all absolution.

D) Identical hardware gives strength to the argument that Apple's computers are no different than other computers, and therefore the tying of OS X to Apple's units is completely unnecessary, technologically. It's entirely artificial and only exists to ensure that Apple snags the hardware sale as well.

Again, no where in the case law is the relationship required to be unique. In fact the case I cited suggests that as long as the manufacturer has a reason to believe it would harm the product if not tied then tying is allowed. This is why Apple Cited the numerous complaints about Psystar HW problems in it's filing, problems that Apple had no control over because Psystar installed on unsupported HW.

C) No I'm not required to use OS X, but if I can buy it off the shelf, I have a right to use it. I also have a right to reject the EULA if I so choose.

The case Law I've cited shows that EULAs are valid contracts, you can't just ignore them because you disagree with the terms of the EULA.

E) Most importantly, you forgot to admit that you're no a real lawyer either, so you're no better than I when it comes to disputing the legality of this.

It doesn't matter whether anyone in this discussion is a lawyer, I freely admit I am not, that is why I cite specific cases, not opinion, not internet myth, not wikipedia.

 

[bigjnyc]

Psystar.

I believe in Choice.

The more choices, the better.

Do you also beleive in stealing someone else's hard work and profiting from it?

 

[matticus008]

If you'll recall, Safari for Windows could only be installed on Apple-labeled computer.

A regrettable oversight on their part based on copying it from their original license, but nothing more than a humorous mistake.

From the site you give no credibility: "The law is not clear on what an end-user's rights are when confronted by a clickwrap or other type of proprietary software license agreement on a copy of software owned by the end-user. Clearly the end-user will be bound by any agreements he/she voluntarily enters into. What is not clear is what, if any, rights the end-user retains if the terms of the license agreement are rejected."

My God. You really don't understand anything, do you? Even your uncited Wikipedia post does not question the validity of EULAs. See emphasis.

So, the rights of users who wish to reject an EULA is an area of dispute.

Yes. And that means what? That the EULA itself is valid per se.

The rights of users who wish to reject a EULA refer to termination and return requirements, not "use the product as if the EULA did not exist".

A) I'm not going to go on some wild chase for an art-terminology question. I did a quick google, nothing showed up. If you want me to know, you're going to have to tell me.

No. Since you can't seem to admit you have no idea what you're talking about, and continue to insist on being right with no rational basis whatsoever, I am not going to put together the time and effort of giving you information so you can flatly reject it and make further uninformed, combative posts about it. It's already been soundly demonstrated that you're not an expert. Anyone interested in this issue can PM me if they'd like more information.

B) No "can" doesn't equal "must" but it DOES mean that OS X and Apple hardware aren't bound to each other in all absolution.

Of course not. If they were, you'd have a better case.

C) No I'm not required to use OS X, but if I can buy it off the shelf, I have a right to use it.

You have a right to use it consistent with the terms of the agreement giving you the right to use it.

I also have a right to reject the EULA if I so choose.

Absolutely. And you can return the product and get something else.

D) Identical hardware gives strength to the argument that Apple's computers are no different than other computers, and therefore the tying of OS X to Apple's units is completely unnecessary, technologically.

No one has made a contrary argument, so you're shooting at ghosts.

It's entirely artificial and only exists to ensure that Apple snags the hardware sale as well.

Which is why they wrote the software in the first place, and why they price it at $129 for Mac users. It is not half the price of Windows because Apple is less greedy.

E) Most importantly, you forgot to admit that you're no a real lawyer either

False. And if it's come down to poking at my credentials, it's proof that the argument has run out of steam. I don't respond to such desperate attempts.

 

[Insulin Junkie]

Apple should win for the simple reason that it's their software, and they have the right to decide how it's used. As some other users have said before me though, deep down I feel for Psystar, because I like the idea of an Apple OS running on different units for a change.

 

[n8mac]

Psystar.

I believe in Choice.

The more choices, the better.

here you go

enjoy!

 

[Clive At Five]

And what I wrote was :

Notice the commas, my copies of OSX going back to jaguar all have "a macintosh computer" printed under system requirements on the side of the box.

Again, read what was written and linked, what was allowed was even more extreme. Carvel made no end product in that case, everything was made by the franchisees with ingredients they purchased. Carvel was allowed to contractually tie which ingredients to be used and which specific dairy farms and sugar producers the franchisees could purchase from, not just the quality of the ingredients and none of it was made or distributed by Carvel. That's certainly a much more tenuous relationship than making both the IP and the product as in Apples case.

You didn't bother to provide a link to that page, so I will :
http://en.wikipedia.org/wiki/Software_license

Notice that the whole section containing your quote has no citations, no attributions, no footnotes what-so-ever. That means it simply the opinion of whoever wrote it and in the case of wikipedia that could mean anyone. Wikipedia can be accurate when it includes citations, otherwise you have no way of verifying its content.

That's why I have been using citations from actual court decisions and case law.


Again, no where in the case law is the relationship required to be unique. In fact the case I cited suggests that as long as the manufacturer has a reason to believe it would harm the product if not tied then tying is allowed. This is why Apple Cited the numerous complaints about Psystar HW problems in it's filing, problems that Apple had no control over because Psystar installed on unsupported HW.

The case Law I've cited shows that EULAs are valid contracts, you can't just ignore them because you disagree with the terms of the EULA.

It doesn't matter whether anyone in this discussion is a lawyer, I freely admit I am not, that is why I cite specific cases, not opinion, not internet myth, not wikipedia.

A) I wasn't aware box text was legally binding (that's why I said EULA). You better notify all those who bought Leopard to use on their 800MHz G4s... y'know... since Apple can sue them for not following their system requirements written on the box.

B) But the manufacturers were using Carvel's recipe, no? Their IP? It's an obvious case of brand protection. Apple's is not. The OSx86 community has shown that OS X runs just as solidly in some generic systems. I haven't heard of widespread problems with PsyStar's units either, and I think a court of law would be able to determine that tying OS X to Apple's HW is not critical for the integrity of the units, OS X, Apple's brand, etc.

That's not to say Psystar is off the hook for redistributing modified copies of OS X.

Do you also beleive in stealing someone else's hard work and profiting from it?

PsyStar isn't stealing. They aren't claiming OS X as their own. They purchase retail copies of OS X and include them in every build they sell. How does that equal stealing?

here you go

Choice of hardware. If you're a prosumer who has long been faithful to Apple, there has always been a midrange tower. Now there is not. Apple took our choice away, so we're taking Apple's hardware sale away by installing legally-purchased copies of OS X onto generic hardware. Seems only fair after they abandon their most loyal fanbase.

More later.

-Clive

 

[ihabime]

A) I wasn't aware box text was legally binding (that's why I said EULA). You better notify all those who bought Leopard to use on their 800MHz G4s... y'know... since Apple can sue them for not following their system requirements written on the box.

B) But the manufacturers were using Carvel's recipe, no? Their IP? It's an obvious case of brand protection. Apple's is not. The OSx86 community has shown that OS X runs just as solidly in some generic systems. I haven't heard of widespread problems with PsyStar's units either, and I think a court of law would be able to determine that tying OS X to Apple's HW is not critical for the integrity of the units, OS X, Apple's brand, etc.

Now your either intentionally diverting the argument, or have lost track of the point.

As I stated, those arguments are a counter to your claim that only a 'fanboy' would claim OSX and Apple computers are naturally related and to show that that tying in such cases is not illegal.

The text on the box, the EULA and the public statements go to show that Apple has always intended for OSX to run only on their machines.

The Carvel case shows that an IP holder, is allowed even to go to extremes if it feels that such tying is necessary to protect not only its brand, but the integrity of the final product. I.E. Carvel was allowed to force their franchisees to buy milk only from farmer A or D, but not farmer B or C, even though the milk from all farmers was substantially the same.

Again, as has been shown in cited cases and in your own quote from wikipedia, tying does not have to be critical for it to be legal.

 

[matticus008]

You better notify all those who bought Leopard to use on their 800MHz G4s... y'know... since Apple can sue them for not following their system requirements written on the box.

Notice is notice. The license doesn't require a CPU speed, but proper function of the software does, which is relevant for the reps and warranties. They can't be sued for running it on an 800MHz system, as long as it's still an Apple machine.

B) But the manufacturers were using Carvel's recipe, no? Their IP? It's an obvious case of brand protection. Apple's is not.

Yes, it is. The holder of a mark has the sole right to determine who can use that mark. The holder of a copyright has the sole right to determine who can reproduce and distribute that work. The holder of a patent has the sole right, compulsory licenses excepted, to determine who can use that patent.

The OSx86 community has shown that OS X runs just as solidly in some generic systems.

That's nice, but it's not their decision.

PsyStar isn't stealing. They aren't claiming OS X as their own. They purchase retail copies of OS X and include them in every build they sell.

They are depriving Apple of the use of their property rights.

Apple took our choice away, so we're taking Apple's hardware sale away by installing legally-purchased copies of OS X onto generic hardware. Seems only fair after they abandon their most loyal fanbase.

Deal with it and buy something else. You don't have a natural right to it. If you're upset they don't offer what you want, do without and buy from a competitor. I don't know when people turned into spoiled children, but it has to stop. It's theirs to sell, not yours.

 

[Clive At Five]

Backtracking a little, Re: software license versus sale:

This article presents a case defending a user who resold AutoCAD on eBay. He was protected under the First Sale Doctrine because the software in question was ruled to be sold versus licensed:

But as Vernor's lawyers pointed out, the distinction between a lease and a sale is based on the actual characteristics of the transaction, not merely on how the transaction is described by the parties. And characterizing AutoCAD as merely licensed, rather than sold, barely passes the straight face test. AutoCAD customers pay a lump sum at the time of purchase, with no obligation to make further payments or to return the software at the conclusion of the supposed lease. Even more damning, Autodesk's own website offers customers a variety of "purchase options" and the opportunity to "buy online" directly from Autodesk, with no indication that "buy" really means "license." Similarly, online retailer CDW offers customers an option to "lease" AutoCAD as an alternative to purchasing a copy.

As the Electronic Frontier Foundation's Corynne McSherry put it in a Thursday blog post, "if it looks like a duck and quacks like a duck, chances are it's a duck." Autodesk clearly sells its software, and merely re-labeling the transaction as a license doesn't negate the First Sale Doctrine.

Though we're not talking abouth the First Sales Doctrine, I believe the same logic applies. I bought my copy of Leopard the same way I buy my milk. I went to the store, took it off the shelf, went to the register, swiped my credit card, signed and left with my merchandise. I don't have to return it after I'm done using it, I don't have to relicense every year... There is no difference between my transaction for Leopard and the jug of milk in my fridge.

That being said, I can only assume this Judge would agree with me that I own my copy of OS X. And since it wouldn't be licensed, it also would not be subject to a license agreement. Therefore I could choose to install it on the hardware of my choice.

But let's just postulate the possibility that the Judge would change his mind and decide that my copy of OS X is licensed. I would then be subject to the terms of its EULA if and only if the agreement was within reasonable legal bounds.

This is where we're at. Some (myself included) feel the EULA is anti-competitive and therefore challenges the legality of the agreement, subsequently threatening the validity of it. You and others disagree. We can throw court cases and legal definitions back and forth at each other day and night but none of it makes a difference since we aren't judge or jury. Such a matter won't be resolved until there's a court ruling.

Until then, it just doesn't make sense to argue over it.

-Clive

 

[matticus008]

He was protected under the First Sale Doctrine because the software in question was ruled to be sold versus licensed:

For the purposes of transactions, yes. The unit as a whole can be resold as a whole under DFS. DFS does not apply to pure licenses, however, and thus the distinction must be made wrt resale. However, since a portion of the transaction is a sale, resale must be allowed--Autodesk operated from a flawed understanding and was duly shut down. DFS does not determine whether the unit sold contains a license or not. It is not a binary state. The contention that the unit as a whole, including the media was licensed is invalid, and thus properly rejected by the court. This, again, is the problem with relying on non-legal sources and amateur parsing.

Again you commit the common lay error of overextension. The operative language in the decision is "not merely a license" (emphasis added).

In fact, the judge says so expressly: "That issue is not to be conflated, however, with whether Mr. Vernor or his customers are bound by the License." (Order, p. 19, ll. 25-6). The court made no determination about the EULA, because it was not necessary to reach a decision on the complaint.

I bought my copy of Leopard the same way I buy my milk.

And if your milk came with a contract, you'd be bound by that upon acceptance, as well.

There is no difference between my transaction for Leopard and the jug of milk in my fridge.

No, there is no difference in the transactions. The difference is in the content purchased.

That being said, I can only assume this Judge would agree with me that I own my copy of OS X. And since it wouldn't be licensed, it also would not be subject to a license agreement.

You do own your copy. That does not preclude it containing a license; indeed, without a license of any kind, it would be unlawful for you to purchase it, because Apple cannot give you OS X without a license, because it contains patents both belonging to Apple and to third parties, and you cannot use patents without a license, period. It snowballs from there, since the bulk of a EULA is not the license grant, but important terms for both parties--warranties, dispute resolution, liability. In fact, the license grant is a small section of a EULA.

This is where we're at. Some (myself included) feel it's anti-competitive and therefore challenges the legality of the agreement, subsequently threatening the validity of it.

A valid feeling, but one not borne out by law.