Psystar Case Comes to a Close as U.S. Supreme Court Declines Review

[rjohnstone]

I never said package I said Disc - and it's been available online forever. Anyway, it's irrelivant - Apple's SLA was held up in court.

Judge Allsup commented that Apple asks that you purchase a Mac to install OSX - which he said was reasonable.

Have any of you ever read the judgment?
The EULA itself was not upheld.
Only claims regarding copyright infringement, DMCA violations and distribution were upheld.

All other non-copyright claims (the EULA itself) were never tried or ruled on. They were dismissed.

In its motion for summary judgment, Apple contended that Psystar's reproduction, modification, and distribution of Mac OS X on non-Apple computers constituted direct and contributory copyright infringement under the Copyright Act, and multiple violations of the DMCA. Psystar also moved for summary judgment on a number of affirmative defenses. After full briefing and oral argument, Psystar was found liable for infringement of Apple's copyrights in Mac OS X by violating Apple's exclusive reproduction right, distribution right, and right to create derivative works (Dkt. No. 214 at 10). Psystar was also found liable for contributory copyright infringement by intentionally inducing and encouraging its customers to directly infringe Apple's copyrights through its sale of unauthorized copies of Mac OS X to the public (Id. at 10). 1 Finally, Psystar was found liable for violating Sections 1201(a)(1), 1201(a)(2), and 1201(b)(1) of the DMCA for circumvention and trafficking in circumvention devices (Id. at 13-14). Each of Psystar's asserted defenses were rejected as either waived or without merit.
Following these rulings, the Court approved a stipulated agreement reached between the parties dismissing all remaining non-copyright claims for trial, awarding damages in the amount of $1,337,550, and awarding attorney's fees and costs in the amount of $1,337,500 (Dkt. No. 238). As a result, all that remains to be decided in this action is Apple's motion for a permanent injunction. It is to this issue that this order now turns.

 

[Eric S.]

A mini tower or at least a Pro that didn't break the bank for prosumers or someone that just wants expandability. What we all want is the old Power Mac G4 pricing and set up. Cheap lower specced single CPUs and more expensive dual CPUs.

Image

Yup, I have one of those, sitting in the corner powered off. I sure would like to be able to upgrade to a more recent Mac tower in the middle price/performance range. But I gave up that idea a couple years back, hence the hackintosh.

 

[gotluck]

bring back the mac towers already!

 

[KnightWRX]

Ahh... no.
The Snow Leopard retail copy I purchased from the Apple store had no such restriction.
I performed a fresh install on a clean system (new drive).

Yes, yes it did. While the media itself was capable of a clean install, the enclosed license was for an upgrade to an existing OS X installation.

In fact, there are no virgin Macs with no pre-existing, properly licensed copies of OS X. Once you buy a Mac, you have a legitimate license, making any OS X sold able to be an upgrade.

Unless of course you're referring to the EULA, which has still not been proven to be enforceable.
The software itself has no such restriction.

Without the EULA, you have no rights to make a copy under copyright law. Without rights to make a copy, you can't install the OS from the media or run it by loading it from the hard drive to memory. There is legal precedent for this, it was quoted in the Psystar case even.

Seriously guys, give it up. Apple doesn't want clones, why the heck should others get a free ride off their work ? Psystar simply wasn't entitled to using OS X, and frankly, anyone defending Psystar which even failed to purchase a single copy (couldn't provide purchase receipts in court at all... ) is puzzling to say the least.

They were pirating OS X, on a commercial scale. This is what copyright law was made to fight. Not a small kid downloading 1 mp3 off the net, these guys that take copyright material and sell it for profit.

----------

No EULA is included in the package. One has to install it before one can read it.

That is plainly wrong. Don't make me find my box and take a picture of the side where it is clearly indicated that the enclosed software is subject to a license agreement.

Also, the EULA has never been proven enforceable.
Pystar lost on copyright grounds, not licensing.

The EULA doesn't need to be enforceable, but without the EULA, you have no rights to make a copy. Psystar lost because they lacked a license to distribute the copyrighted material. The EULA is an "end-user" license, not a distribution license, thus it could not even help Psystar even if they had respected it (which is impossible) since they weren't the end-user at all.

 

[pdjudd]

The EULA doesn't need to be enforceable, but without the EULA, you have no rights to make a copy.

My understanding is that unless you can show that the contract (EULA) is invalid on it’s terms (in other words you have to show a basis for it’s nullification such as terms that are unenforceable) it’s generally considered as binding. Not that it matters much for Psystar since they are not end users.

In short, the court didn’t have to address the license issue since it didn’t need to - Allsup commented that Apple’s terms were reasonable. The rest of the case was decided on other merits. But the EULA was a defense that Psystar asserted (if memory serves since there was so much and it was a while ago). Those defenses were not valid.

 

[rjohnstone]

Yes, yes it did. While the media itself was capable of a clean install, the enclosed license was for an upgrade to an existing OS X installation.

That is plainly wrong. Don't make me find my box and take a picture of the side where it is clearly indicated that the enclosed software is subject to a license agreement.

I have the box in front of me. No such document or insert containing the EULA is anywhere in the packaging.
I have all the contents, including the stickers and inserts for installation and support. No license documentation or even a URL to the license.

The only reference to a license is some fine print on the BOTTOM of the package saying "Important Use of this product is subject to acceptance of the software license agreement(s) included in this package. www.apple.com"
No such written license is included. See the picture in my previous post.
You have to install the software before you can read the digital copy enclosed on the disc.

 

[pdjudd]

You have to install the software before you can read the digital copy enclosed on the disc.

No you don’t. You agree to the license before anything is installed. And you just proved yourself wrong. The box tells you where to find the terms. They do not have to include the whole thing. You have the ability to read the license before install. I provided a link to it. Get over it.

 

[KnightWRX]

I have the box in front of me. No such document or insert containing the EULA is anywhere in the packaging.
I have all the contents, including the stickers and inserts for installation and support. No license documentation or even a URL to the license.

The only reference to a license is some fine print on the BOTTOM of the package saying "Important Use of this product is subject to acceptance of the software license agreement(s) included in this package. www.apple.com"
No such written license is included. See the picture in my previous post.
You have to install the software before you can read the digital copy enclosed on the disc.

The license is on the media, it tells you you'll need to accept it or you can find it on the website as stated. Apple will accept returns for license refusals :

http://www.apple.com/legal/sla/

IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE APPLE SOFTWARE AND CLICK “DISAGREE”. IF
YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE APPLE SOFTWARE WITHIN THE RETURN PERIOD TO THE APPLE STORE OR
AUTHORIZED DISTRIBUTOR WHERE YOU OBTAINED IT FOR A REFUND, SUBJECT TO APPLE’S RETURN POLICY FOUND AT http://www.apple.com/legal/
sales_policies/. FOR APPLE SOFTWARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE
PACKAGE IN ORDER TO OBTAIN A REFUND.

So it's not an issue that you can't read it ahead of time. It is however clearly indicated that you will need to accept the license to use the software on the box, prior to your purchase.

I don't even get what you're arguing here. If you don't have a valid license, copyright law applies. Having a EULA or a license like the GPL declared invalid does not make the work part of the public domain, the work still retains full protection under copyright law.

What is your argument exactly ?

Again, we're discussing Psystar, a commercial organisation that was distributing copyright material without having prior obtained a distribution license. They tried to argue first-sale doctrine, but then couldn't even provide proof of purchase of the 700 or so require end-user licenses, licenses which their users would have been in breach of (can't accept the terms if you don't comply with them) by Psystar's action of installing the copy on non-Mac hardware. Even if Psystar had the EULA thrown out, Copyright law would have applied and prevented any copy from being made without a proper license from Apple.

This was always no-win for Psystar. And frankly, why anyone would want Psystar to win is absurd.

----------

My understanding is that unless you can show that the contract (EULA) is invalid on it’s terms (in other words you have to show a basis for it’s nullification such as terms that are unenforceable) it’s generally considered as binding. Not that it matters much for Psystar since they are not end users.

In short, the court didn’t have to address the license issue since it didn’t need to - Allsup commented that Apple’s terms were reasonable. The rest of the case was decided on other merits. But the EULA was a defense that Psystar asserted (if memory serves since there was so much and it was a while ago). Those defenses were not valid.

Again, no matter what you think of the EULA, if it applied or not and if Psystar could have it declared invalid, invalidating a license does not revert the work back to public domain, it only makes it so that standard copyright law applies.

And under copyright law, Psystar had no rights to make copies and distribute OS X.

Why this is such a hard concept to grasp, I don't know.

 

[pdjudd]

Again, no matter what you think of the EULA, if it applied or not and if Psystar could have it declared invalid, invalidating a license does not revert the work back to public domain, it only makes it so that standard copyright law applies.

And under copyright law, Psystar had no rights to make copies and distribute OS X.

Why this is such a hard concept to grasp, I don't know.

I have made it clear that I think the EULA is absolutely binding - I am not arguing against you whatsoever. I do not subscribe to any of the claims you think I am in favor of.

 

[KnightWRX]

I have made it clear that I think the EULA is absolutely binding - I am not arguing against you whatsoever. I do not subscribe to any of the claims you think I am in favor of.

I wasn't referring to you either.

I was reinforcing what you and I have been saying. The concept is apparently very foreign to other posters who seem to insist Psystar had some legal rights to profit from Apple's work on OS X. Copyright protects authors and creators from abuse use of their intellectual property by entities like Psystar who want to have their cakes and eat it to.

 

[pdjudd]

I wasn't referring to you either.

I was reinforcing what you and I have been saying.

Sorry, I thought you were with the response that you gave to me seeing so similar as to what you gave to the other guy. Anyhow, these pro Psystar arguments kinda sound like a broken wheel. We already are seeing the tired “the EULA is invalid” argument that we have debunked before.

 

[rjohnstone]

The license is on the media, it tells you you'll need to accept it or you can find it on the website as stated. Apple will accept returns for license refusals :

http://www.apple.com/legal/sla/


So it's not an issue that you can't read it ahead of time. It is however clearly indicated that you will need to accept the license to use the software on the box, prior to your purchase.

I don't even get what you're arguing here. If you don't have a valid license, copyright law applies. Having a EULA or a license like the GPL declared invalid does not make the work part of the public domain, the work still retains full protection under copyright law.

What is your argument exactly ?

Again, we're discussing Psystar, a commercial organisation that was distributing copyright material without having prior obtained a distribution license. They tried to argue first-sale doctrine, but then couldn't even provide proof of purchase of the 700 or so require end-user licenses, licenses which their users would have been in breach of (can't accept the terms if you don't comply with them) by Psystar's action of installing the copy on non-Mac hardware. Even if Psystar had the EULA thrown out, Copyright law would have applied and prevented any copy from being made without a proper license from Apple.

This was always no-win for Psystar. And frankly, why anyone would want Psystar to win is absurd.

----------



Again, no matter what you think of the EULA, if it applied or not and if Psystar could have it declared invalid, invalidating a license does not revert the work back to public domain, it only makes it so that standard copyright law applies.

And under copyright law, Psystar had no rights to make copies and distribute OS X.

Why this is such a hard concept to grasp, I don't know.

I guess we did drift a bit from the original argument.

The original argument was regarding whether a retail copy is an upgrade or a standalone product.
No where in any of the included documentation, packaging or even on the disc itself, is the product listed or described as an upgrade.
Even the license on the disc does not make any distinction.
No where is it stated that you are required to have a previous version of OS X to install a retail copy of OS X.

That was the point I was trying to make before the conversation went sideways.

Sorry, I thought you were with the response that you gave to me seeing so similar as to what you gave to the other guy. Anyhow, these pro Psystar arguments kinda sound like a broken wheel. We already are seeing the tired “the EULA is invalid” argument that we have debunked before.

No one said it was invalid.
It was clearly stated that its validity was never ruled on.
Pystar was found to violate the copyright portions of the license regarding derivative works and unauthorized distribution.
The EULA itself was never validated or invalidated. Both parties agreed to not pursue the matter.

 

[Eric S.]

With the money Psystar spent on the lawsuit and appeals, they would have been better served to hire some programmers to develop an alternative OS to sell on their machines instead.

The legality/morality of Psystar's actions aside, they would not have been "better served" to do this. The time and effort involved in developing an alternative OS to Windows or MacOS would be immense, and then to go up against those giants in the market makes it an impossibility. It's been tried, by companies that had some pretty substantial backing too (e.g., BeOS), with negative results.

Mac OS X was never licensed to other makers... System 7 was, and for a bit, Mac OS 8.

As I recall, the clone license was only for System 7. When Steve J. wanted to deep six the clone business he merely renamed what was intended to be System 7.7 as "Mac OS 8," thereby de-legitimizing the clones. The clone manufacturers were offered a new license with much higher royalties for Apple, and none would agree to the terms nor wished to sell an unlicensed product.

Sorry, you are correct. Offering a mid-range tower would just not be profitable for Apple - it would make the iMac alot tougher of a sell (it's really popular as a desktop) and it would crimp the Pac Pro even more. Not to mention that I doubt it would be profitable.

I believe it would certainly be profitable, just not as profitable as Apple would require in order to develop it, because it would lack the very high margins of their other computer products and would not nearly approach the volume of the iDevices.

In fact, there are no virgin Macs with no pre-existing, properly licensed copies of OS X. Once you buy a Mac, you have a legitimate license, making any OS X sold able to be an upgrade.

And if I bought a used Mac on which the previous owner had wiped the disk clean (or sold with no disk at all), what then? Would it still be an "upgrade"? (I guess the subtlety of "upgrade" vs. "clean install" is lost on me.)

 

[KnightWRX]

And if I bought a used Mac on which the previous owner had wiped the disk clean (or sold with no disk at all), what then? Would it still be an "upgrade"? (I guess the subtlety of "upgrade" vs. "clean install" is lost on me.)

You're mistaking the license vs the procedure. Installing "clean" or "upgrading is a install procedure and method. An upgrade or full license is a license. You can have 1 media with no checks at all, but a license covering only upgrades, both are seperate.

In fact, I can go right now to Oracle's site, download their Oracle 11g RDBMS product, and install it from scratch on hundreds of machines if I want. All free. Do you know how much an Oracle RDBMS license cost ? The media, it's install procedure, etc.. has nothing to do with the license to use or distribute the copyrighted work itself.

And if someone sold you a Mac, what good is their OS X license ? They need to transfer it to you. If they don't, both of you are technically screwed. He's stuck with an unsuable OS license, you're stuck with a proper license to get a proper copy of OS X. Unless you track down a Mac Box set which contains a full licensed copy.

----------

The legality/morality of Psystar's actions aside, they would not have been "better served" to do this. The time and effort involved in developing an alternative OS to Windows or MacOS would be immense, and then to go up against those giants in the market makes it an impossibility. It's been tried, by companies that had some pretty substantial backing too (e.g., BeOS), with negative results.

And others, Canonical, RedHat, Novell, have had some quite positive results. So let's not discount that option.

----------

I guess we did drift a bit from the original argument.

The original argument was regarding whether a retail copy is an upgrade or a standalone product.

Well, we'll never quite know since Apple have since modified the terms under which the 29$ copy is sold. They now state it is a Single-Use license, which is a full copy under the EULA. However, the copy in your hand is probably the original copy (mine is a family pack from release) which was sold as an upgrade. The license even states the 3 different license schemes now :

2. Permitted License Uses and Restrictions.
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.
B. Family Pack License. If you have purchased a Family Pack license, then subject to the terms and conditions of this License, you are granted a limited nonexclusive license to install, use and run one (1) copy of the Apple Software on up to a maximum of five (5) Apple-branded computers at a time as long as those
computers are located in the same household and used by persons who occupy that same household. By "household" we mean a person or persons who share the
same housing unit such as a home, apartment, mobile home or condominium, but shall also extend to student members who are primary residents of that
household but residing at a separate on-campus location. The Family Pack License does not extend to business or commercial users.
C. Leopard Upgrade Licenses. If you have purchased an Upgrade for Mac OS X Leopard license, then subject to the terms and conditions of this License, 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 as long as that computer
has a properly licensed copy of Mac OS X Leopard already installed on it. If you have purchased a Family Pack Upgrade for Mac OS X Leopard license, then subject
to the terms and conditions of this License, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on up to a
maximum of five (5) Apple-branded computers at a time as long as those computers are located in the same household (as defined above), are used by persons
who occupy that same household, and each such computer has a properly licensed copy of Mac OS X Leopard already installed on it. The Family Pack Upgrade for
Mac OS X Leopard License does not extend to business or commercial users.

 

[Eric S.]

And others, Canonical, RedHat, Novell, have had some quite positive results. So let's not discount that option.

Canonical (Ubuntu) and RedHat are Linux-based, and Linux may be the only relatively new OS to challenge Windows and MacOS. But of course that wasn't developed by any single company but by an open source effort (although you can't convince me that many of the hands in that source hadn't already been exposed to Unix code).

Novell, if you're talking about the original NetWare, developed their OS back in the '80s (pre-Mac or Windows), but by 2000 it was losing out. That was the reason Novell acquired the original Unix OS and later went into Linux-based systems also.

Of course you could mention others as well, mostly Unix-based OSes like Solaris. But even one like that has had decades of development by thousands of engineers but cannot even approach the market share of MacOS or Windows.

 

[BaldiMac]

Ahh... no.
The Snow Leopard retail copy I purchased from the Apple store had no such restriction.
I performed a fresh install on a clean system (new drive).

Sure it did. It was only installable on Macs which come with a license to OS X.

Unless of course you're referring to the EULA, which has still not been proven to be enforceable.

Of course the SLA is enforceable. Many, many cases have affirmed this. It's a contract.

The software itself has no such restriction.

Sure it does. It verifies that it is being installed on a Mac.

 

[pdjudd]

Sure it did. It was only installable on Macs which come with a license to OS X.

In fact there are two levels of enforcement. One legal (the EULA) that has allways required apple branded hardware and technical - the Ktexts that look for specific strings, and the installer checks for technical requirements (RAM, HD, Processor). Modify any of those without permission from Apple and you are in trouble.

Of course the SLA is enforceable. Many, many cases have affirmed this. It's a contract.

It is, and it has yet to be declared null - even so it matters not - It’s still covered by basic copyright and the technical restrictions.

Sure it does. It verifies that it is being installed on a Mac.

Yep. About the only way to install the OS on non-apple hardware is by changing the source - which is infringement - and that still requires you to fraudulently agree to the EULA.

 

[Renzatic]

Yep. About the only way to install the OS on non-apple hardware is by changing the source - which is infringement - and that still requires you to fraudulently agree to the EULA.

I'd like to see them try and enforce it on me personally, as a single individual who isn't exploiting their product for a profit in any shape, form, or fashion.

 

[kwikdeth]

i still buy apple notebooks and desktops, but for tower machines ive been using hackintoshes for a couple years now. apple is neither willing nor interested in selling a machine that genuinely meets the needs of professional customers, so I must resort to the hackintosh method to get the system i want, that is, capable of holding more than four hard drives or three expansion cards, or accept third-party products without having to void the warranty to use it
(example, the removal of the mini-sas port on the 2010 mac pros, necessitating third-party adapters to use a non-Apple raid card in a mac pro, not to mention the apple raid card is firmware-crippled [a well-documented issue])
i have an 8-drive RAID10 in my hackintosh, for which all I had to purchase was the drives and a raid controller. if i wanted to have something similar in a hackintosh, i'd have to add $1k to the price just to get an external case that was compatible. no thank you. i may be a pro user, but im not spielberg and I dont have piles of cash to throw at overpriced add-ons.

 

[pdjudd]

I'd like to see them try and enforce it on me personally, as a single individual who isn't exploiting their product for a profit in any shape, form, or fashion.

It wouldn’t be profitable but they still have grounds. Just because you can get away with it doesn’t make it acceptable. And the whole “I’m not making a profit” canard is 100% irrelevant and in no way changes things.

 

[KnightWRX]

Canonical (Ubuntu) and RedHat are Linux-based, and Linux may be the only relatively new OS to challenge Windows and MacOS. But of course that wasn't developed by any single company but by an open source effort

So... what ? It's available to use to build on. Linux is a kernel. It's not an OS. To get an OS with Linux, you need to put a userspace on top of it, a graphics display server or a web interface, or any other type of UI/user accessible component.

It can run on your TV, your Internet router, your switching equipment, your watch, your smartphone or your traditionnal laptop/desktop all the way up to supercomputing clusters and mainframe computers.

Ubuntu and RHEL are OSes. They are built on top of Linux. Nothing would have prevented Psystar from shipping Psystar OS, building upon what is available and adding what was missing. That's the whole point. But no, they had to take OS X in a bid to get free publicity. Well it backfired and they got bankruptcy instead.

That would have been a legitimate effort, just like Canonical, RedHat, Novell and many others have done.

(although you can't convince me that many of the hands in that source hadn't already been exposed to Unix code).

What does that matter anyway ? Anyone who's read the BSD source code is tainted for having seen Unix code. Some of it is even allowed to be licensed under the BSD license following the BSDi decision.

Novell, if you're talking about the original NetWare

Nope, SuSE. SLES actually. Though Attachmate has seperated that from what was known as Novell when they acquired the company.

Of course you could mention others as well, mostly Unix-based OSes like Solaris. But even one like that has had decades of development by thousands of engineers but cannot even approach the market share of MacOS or Windows.

Why mention Solaris, a very special server case OS when discussing desktops ? Sun stopped shipping specialized workstations a long time ago, just like SGI and HP stopped shipping their own MIPS and PA-RISC based solutions with Irix and HP-UX in the workstation world.

Windows NT replaced those.

 

[KnightWRX]

I'd like to see them try and enforce it on me personally, as a single individual who isn't exploiting their product for a profit in any shape, form, or fashion.

They could under the anti-circumvention provisions of the DMCA. Would they ? Of course not, massive waste of time and money.

Psystar though was exploiting their product for a profit.

----------

i still buy apple notebooks and desktops, but for tower machines ive been using hackintoshes for a couple years now. apple is neither willing nor interested in selling a machine that genuinely meets the needs of professional customers, so I must resort to the hackintosh method to get the system i want, that is, capable of holding more than four hard drives or three expansion cards, or accept third-party products without having to void the warranty to use it
(example, the removal of the mini-sas port on the 2010 mac pros, necessitating third-party adapters to use a non-Apple raid card in a mac pro, not to mention the apple raid card is firmware-crippled [a well-documented issue])
i have an 8-drive RAID10 in my hackintosh, for which all I had to purchase was the drives and a raid controller. if i wanted to have something similar in a hackintosh, i'd have to add $1k to the price just to get an external case that was compatible. no thank you. i may be a pro user, but im not spielberg and I dont have piles of cash to throw at overpriced add-ons.

If you're hackintoshing, you're not a professional sorry. Not professional who makes money from their systems would accept a hoge-poge of unsupported hardware/software. That's a nightmare waiting to happen for any professional/business.

You're probably more a prosumer.

 

[Renzatic]

It wouldn’t be profitable but they still have grounds. Just because you can get away with it doesn’t make it acceptable. And the whole “I’m not making a profit” canard is 100% irrelevant and in no way changes things.

They could under the anti-circumvention provisions of the DMCA. Would they ? Of course not, massive waste of time and money.

Of course it'd never happen, but...

...if jailbreaking your iPad is now officially legal, then what makes installing OSX on an unsupported platform any different? Both require you to use hacks and cracks to undermine protections set in place by Apple to protect their software, so what makes one more legal than the other?

As long as you legally buy a copy of OSX, I don't see how they could press charges against an individual. I know they'd have a helluva time proving to a judge and jury that ole Mike Blah Ubergeek Extraordinaire going out to the Apple Store, buying Lion on a thumb drive for $70, and installing it on a Hackintosh PC harms the company in any way whatsoever.

 

[pdjudd]

Of course it'd never happen, but...

...if jailbreaking your iPad is now officially legal, then what makes installing OSX on an unsupported platform any different? Both require you to use hacks and cracks to undermine protections set in place by Apple to protect their software, so what makes one more legal than the other?

As long as you legally buy a copy of OSX, I don't see how they could press charges against an individual. I know they'd have a helluva time proving to a judge and jury that ole Mike Blah Ubergeek Extraordinaire going out to the Apple Store, buying Lion on a thumb drive for $70, and installing it on a Hackintosh PC harms the company in any way whatsoever.

Jailbreaking involves actions after the software has been installed. Hackintoshing involves infringing and deriving code before the install. Big difference

ETA: JB also doesn’t change the device hardware or permit you to install IOS on other hardware. It is not analogous. JB has nothing to do with copyright infringement.

 

[Renzatic]

Jailbreaking involves actions after the software has been installed. Hackintoshing involves infringing and deriving code before the install. Big difference

Not according to the DMCA, which only covers the act of cracking itself. It doesn't matter whether the software was installed when you bought the machine or not, only that you're breaking protections put in place by the developers (someone correct me if I'm wrong on this).

After all, cracking a copy of the MS Office trial that comes standard on most OEM PC's is just as illegal as downloading a copy off The Pirate Bay. But...

ETA: JB also doesn’t change the device hardware or permit you to install IOS on other hardware. It is not analogous. JB has nothing to do with copyright infringement.

...you're right. It's not copyright infringement in the least. Which ultimately means the whole cracking issue is a moot point.

It's an EULA issue, which is a considerably muddier situation. There is no true legal precedence here. It's against the terms of the agreement, yes. But are the terms legally binding? Is slapping a piece of software you bought and paid for on hardware Apple doesn't support illegal simply because Apple doesn't want you to do it? If cars suddenly come with license agreements, and their EULA states you can't drive the car on dirt backroads, are you bound by law to not do so?

Basically hackintoshing is you using Apple's software in a way Apple doesn't want you to do. Which is exactly what you do when you jailbreak iOS, regardless of the superficial differences.