Psystar to Change Tactics and Sell Mac OS X-Ready Computers?

[jragosta]

The myth propagated by Apple fans is that those products were popularised by Apple. How does a 5% marketshare equate to popularising a technology?

That's really stupid logic.

Volvo had the first antilock brakes in an auto and they built enough popularity that eventually everyone else copied that technology. Yet Volvo never hit 5% market share.

All it takes is for a small company to innovate and a larger company to copy.

First, there was no chance of the EULA being thrown out. They have been upheld time and again. Second, the validity of the Apple EULA is a different matter than the validity of any other EULA, because every contract or license is construed on its own terms.

Well, I was responding to your statement that Microsoft got nothing from this decision. Clearly, the fact that this decision affirmed the EULA was of value to Microsoft. And any time there's a court case on an issue, there's a chance that they court will do something incredibly stupid, so I wouldn't say there was no chance of the court voiding the EULA. Psystar probably made as good an attempt as anyone.

 

[cumanzor]

Isn't it just remotely possible that some people are opposed to criminal behavior?

You could just as easily say that the police are opposed to affordable cars because they won't let me break into a Maserati dealer and steal a car.

Not exactly. The police actually work to preserve order and make sure laws are being followed.

People on the other hand, have absolutely nothing to with this. How does it affect you? Oh wait, it doesn't. You just have some kind of emotional attachment to apple.

In any case, by comparing this to criminal behavior you are comparing Copyright Infringement to piracy and stealing, which, good god, makes you as bad as the MPAA/RIAA.

 

[cmaier]

Not exactly. The police actually work to preserve order and make sure laws are being followed.

People on the other hand, have absolutely nothing to with this. How does it affect you? Oh wait, it doesn't. You just have some kind of emotional attachment to apple.

In any case, by comparing this to criminal behavior you are comparing Copyright Infringement to piracy and stealing, which, good god, makes you as bad as the MPAA/RIAA.

First of all, how is copyright infringement not stealing? You are infringing someone else's property rights. The only difference is the victim still has their own copy.

Second of all, copyright infringement can be criminal. For example, see 17 USC 506, the relevant subset of which is:

(a) Criminal Infringement. —

(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

So Psystar willfully infringed. Check.

They got private financial gain. Check.

The reproduced or distributed multiple copies of Mac OS X by electronic means during any 180-day period. These probably added up to more than $1,000 in retail value.

So how is that not criminal?

And that doesn't even count the DMCA provisions which have criminal penalties.

 

[cathul]

It's wrong because in fact the license is available before the sale is completed. The claim is fundamentally invalid since its predicated on the SLA being unavailable before purchase. Since it is available, the statement is no longer true.

Tbh... i don't understand US laws and jurisdiction, but apparently you don't understand german laws and jurisdiction.
When in germany the EULA has to be available before the sale is completed, this means, that before you hand over the money to Amazon, Apple or the local dealer they have to give the EULA to you for your reading.
Hints regarding websites don't count as handing out the EULA.

Put SL into your basket and order it from Amazon in germany, i bet you wont see any EULA popping up on your screen before you can finish your order, so the EULA isn't part of the contract in germany.

Even if the dealer hands out the EULA to you before finishing the deal it is very possible that some parts of the EULA are invalid, even if you agreed to them (§§307-309 BGB).

 

[clyde2801]

What planet have you been living on?

Aiding copyright infringement is also a crime, and there have been numerous cases that point to this fact.

All they have to do is sell competitively priced easy to hackintosh component systems and let the osx86 community do the rest. Install linux on them. No reason to pay people to hackintosh your system, the net has thousands of people already doing it for free!

The hackintosh community has figured out that it can be supremely easy to hackintosh a system built with certain hardware. Psystar can buy in bulk and sell said systems cheaper than the individuals can buy the parts and assemble them personally. Put an ads on the osx86 boards and forums listing the system, price and components, and that's all psystar would need to do. They could quit selling rebel efi, and just let people use the open source variant, empire efi.

Apple and its army of lawyers would then have to go all over the internet shutting down and/or suing all the forums, websites and tech journalists/bloggers who cover hackintoshing. Apple would then earn a lot of contempt and emnity on the internet and beyond for its efforts, and psystar could stay out of court.

Leo Laporte said on either twit or macbreak weekly recently that apple was a bout to lose some of its luster as a company that can do no wrong. I agree, and think that it's a pr misstep or two away from being thought of as the next microsoft (a rapacious, unscrupulous, controlling, anti-competitive evil empire).

 

[pdjudd]

Tbh... i don't understand US laws and jurisdiction, but apparently you don't understand german laws and jurisdiction.
When in germany the EULA has to be available before the sale is completed, this means, that before you hand over the money to Amazon, Apple or the local dealer they have to give the EULA to you for your reading.
Hints regarding websites don't count as handing out the EULA.

Put SL into your basket and order it from Amazon in germany, i bet you wont see any EULA popping up on your screen before you can finish your order, so the EULA isn't part of the contract in germany.

Do you have a link (in English since I cannot read German and I don't trust online translations) that can back up your claim that the retailer has to physically hand over a copy of the license before your purchase is complete and if you do not, the license is invalid? I cannot believe that is true and that would change the fact that software is still licensed.

Apple's software license requirements are readily available - no hints. They say clearly on the box that agreeing to the license is required (they include the link to a PDF). It is not "in the box". You can get it, read it, reject or accept it, all before removing the shrink wrap and if you do not agree to its usage, return it.

However, EULA's are a side point. Germany still has copyright laws correct? That was the thrust of the Psystar case - copyright and not EULA. From what I can tell PearC does the same thing that Psystar does - Pre-install OSX and include a retail copy. Ironically their is no way for the purchaser of of a PearC to agree to any licensing either.

Even if the dealer hands out the EULA to you before finishing the deal it is very possible that some parts of the EULA are invalid, even if you agreed to them (§§307-309 BGB).

If there are terms of teh licence that are invalid, shouldn't that be up to the user to determine that and not agree to the license?

 

[pdjudd]

Leo Laporte said on either twit or macbreak weekly recently that apple was a bout to lose some of its luster as a company that can do no wrong. I agree, and think that it's a pr misstep or two away from being thought of as the next microsoft (a rapacious, unscrupulous, controlling, anti-competitive evil empire).

Laporte forgets that Apple has always been protective about their IP. I also know that Laporte understands about protecting their IP as well (he has his own brands which he has had to protect after all). Furthermore I dispute the notion that Apple has ever been a company that has a reputation of doing no wrong - practically everything they do has been criticized by the public for years. I also find the notion of Apple being thought of as the next Microsoft is practically ludicrous MS was sheer evil in their actions. What has Apple done to stop anybody from making a competing product to anything that it sells? Where is the aantitrust suit that was broguht up against Apple?

I contend that there are about as many people who think that Apple could do no wrong as there are who feel the same as any other company - they are a vocal minority.

I am in no way saying that Apple is beyond reproach - on the contrary they have done some pretty foolish and stupid things. However I am pointing out that Leo Laporte tends to go out of his way to not be seen as a fanboy and his job is to ask probing questions. Of course, despite all of this, he still buys Apple products. That doesn't make him right or make is opinion beyond reproach either. There are several things that Leo Laporte has said about Apple that have turned out to not be the case at all (for example Leo's statements about the Apple stores).

I simply believe that Leo is mis reading the public perception of Apple based on his past experiences. Leo has admitted in the past that he was a Fanboy and he is really trying hard to not come across as biased - however he is projecting his opinion based on talking points from opinion writers and not the companies themselves. Who's to say that the tech writers are guilty of pervaying the notion that "Apple can do no wrong"? After all, without an anti-trust case against Microsoft, who else can they portray as a villain?

 

[balamw]

Do you have a link (in English since I cannot read German and I don't trust online translations) that can back up your claim that the retailer has to physically hand over a copy of the license before your purchase is complete and if you do not, the license is invalid?

The other factor to keep in mind here is the relatively normal and lenient return policies in the US. In a sense, here a purchase isn't really complete until you can't return it anymore. You could take it home, read the license and reject it and then take it back to the store unopened within 14-30 days depending on the retailer without any consequences here.

How does that work in Germany? I do not recall it being so easy to return purchases, even unused or unopened, when I lived in Europe many moons ago.

B

 

[BaldiMac]

Tbh... i don't understand US laws and jurisdiction, but apparently you don't understand german laws and jurisdiction.
When in germany the EULA has to be available before the sale is completed, this means, that before you hand over the money to Amazon, Apple or the local dealer they have to give the EULA to you for your reading.
Hints regarding websites don't count as handing out the EULA.

Put SL into your basket and order it from Amazon in germany, i bet you wont see any EULA popping up on your screen before you can finish your order, so the EULA isn't part of the contract in germany.

Even if the dealer hands out the EULA to you before finishing the deal it is very possible that some parts of the EULA are invalid, even if you agreed to them (§§307-309 BGB).

What percentage of retail software is sold in Germany with the license printed on the outside of the box? Just your best guess based on your experience.

 

[pdjudd]

How does that work in Germany? I do not recall it being so easy to return purchases, even unused or unopened, when I lived in Europe many moons ago.

B

I cannot imagine most companies not having some some kind of system for returning un-opened, unused product - after all how would retailers handle gifting returns (which has to happen). What does the retailer care if the product they return is still shrink wrapped and sellable?

 

[cathul]

Do you have a link (in English since I cannot read German and I don't trust online translations) that can back up your claim that the retailer has to physically hand over a copy of the license before your purchase is complete and if you do not, the license is invalid? I cannot believe that is true and that would change the fact that software is still licensed.

Sorry, i just have german links for that topic. Probably because it's so totally different to the US that no one cared to translate all the necessary things.
Part of the thing is ( i try to translate it as good as i can) that the EULA becomes part of the business conditions only if they are presented before you finish the business. If they are presented after finishing the business, even if there is a hint on the small box of the software they cannot become part of the business conditions.

Apple's software license requirements are readily available - no hints. They say clearly on the box that agreeing to the license is required (they include the link to a PDF). It is not "in the box". You can get it, read it, reject or accept it, all before removing the shrink wrap and if you do not agree to its usage, return it.

I know that you can read the licence in the internet, but that doesn't count in germany. EULAs can only become part of the business conditions if presented like described above. The dealer has to hand out the EULA in written form before the user buys the box.

However, EULA's are a side point. Germany still has copyright laws correct? That was the thrust of the Psystar case - copyright and not EULA. From what I can tell PearC does the same thing that Psystar does - Pre-install OSX and include a retail copy. Ironically their is no way for the purchaser of of a PearC to agree to any licensing either.

PearC builds their case upon what i said. They justify their behaviour on the case of the EULA, not on copyright. Apple hasn't sued them over here, so it's not clear what PearC has to expect in the end. As long as Apple doesn't sue them in germany and get a final decision we'll never know i guess. PearC will continue selling their "clones" as long as there is no case in court.

Nethertheless we have copyright laws as well, definitely. But as long as no one sues PearC they continue their business.

If there are terms of teh licence that are invalid, shouldn't that be up to the user to determine that and not agree to the license?

Not at all. The legislator releases the user from that as the legislator assumes that the user hasn't the knowledge to differentiate if a part of a licence is legally invalid or not, so these parts are automatically invalid if they violate other laws.

Sometimes to me it seems that the user is much more protected in germany than in the US, and tbh, i think that is a good thing.

To sum it up... You buy the box and therefor are basically allowed to use the software. Buy giving the money to the dealer the purchase is finished. No company can alter the business conditions to their favor (or the buyers disadvantage) after the purchase has happened, and in german law dealing with altered business conditions after the purchase is finished most of the time is in disadvantage of the buyer and this is simply forbidden.

 

[cathul]

What percentage of retail software is sold in Germany with the license printed on the outside of the box? Just your best guess based on your experience.

Never saw one tbh and i guess thats why no company ever tried to enforce an EULA, at least as far as i know. Didn't find any hint if a company ever did.

 

[cathul]

The other factor to keep in mind here is the relatively normal and lenient return policies in the US. In a sense, here a purchase isn't really complete until you can't return it anymore. You could take it home, read the license and reject it and then take it back to the store unopened within 14-30 days depending on the retailer without any consequences here.

How does that work in Germany? I do not recall it being so easy to return purchases, even unused or unopened, when I lived in Europe many moons ago.

B

No, it's not that easy. For example, to read the license of Snow Leopard you have to open the box, put the disk into your computer, boot from that disk and then you can read the whole licence.
Every dealer i know doesn't have a return policy for opened software, and opened it is in the case of snow leopard, isn't it?

 

[BaldiMac]

Never saw one tbh and i guess thats why no company ever tried to enforce an EULA, at least as far as i know. Didn't find any hint if a company ever did.

I find it hard to believe that every company that sells software in Germany is completely ignorant of German law. The software industry cannot exist with its current business model if licenses are unenforceable. Why would anyone buy a full version when upgrade and OEM licenses have the same value?

Additionally, if the license is void, what gives the consumer the right to install and modify the software? Copyright law still applies, and it has the same basic ideas in Europe that it does in the US.

I'm not saying that your understanding is right or wrong, but there has to be more to the picture. Apple's lawyers, as well as those of the rest of the companies that sell software in Germany, are not all idiots. They don't include a copy of the SLA in German for fun.

 

[pdjudd]

I find it hard to believe that every company that sells software in Germany is completely ignorant of German law. The software industry cannot exist with its current business model if licenses are unenforceable. Why would anyone buy a full version when upgrade and OEM licenses have the same value?

Additionally, if the license is void, what gives the consumer the right to install and modify the software? Copyright law still applies, and it has the same basic ideas in Europe that it does in the US.

I'm not saying that your understanding is right or wrong, but there has to be more to the picture. Apple's lawyers, as well as those of the rest of the companies that sell software in Germany, are not all idiots. They don't include a copy of the SLA in German for fun.

Which is why I asked for links, there has to be more to this. After all why bother putting the Licenses online in German if they are meaningless? And as it has been said before, if you don;t have any licence, how can you install and use the software without breaking copyright. The PearC guys clearly are breaking copyright law based on what I have read - they do the same thing as Psystar!

 

[balamw]

No, it's not that easy. For example, to read the license of Snow Leopard you have to open the box, put the disk into your computer, boot from that disk and then you can read the whole licence.
Every dealer i know doesn't have a return policy for opened software, and opened it is in the case of snow leopard, isn't it?

Have you actually read any of the Apple legal docs? http://images.apple.com/legal/sla/docs/macosx106.pdf

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

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

Note that, as an exception, you may return Apple branded software within the 14-day return period, and not be subject to a restocking fee, if you do not agree to the licensing terms, provided you do not retain any copies, including copies stored on a computer or other device. However, if your software includes a license that you can read before you break the seal or sticker on the software media packaging, you may not return the software once you break the software media packaging seal or sticker.

My German is lousy, but the same sections seem to be in the German version of the SLA, but not the DE sales policy.

B

 

[twoodcc]

i personally wouldn't mind seeing what would happen if they were able to do this

 

[cathul]

Have you actually read any of the Apple legal docs? http://images.apple.com/legal/sla/docs/macosx106.pdf

I did, but this doesn't mean anything in germany. The dealer, Amazon, Apple has to present the EULA in german language before you as the customer pay for the product.
It doesn't matter if you can read it online if the dealer, Amazon, Apple or whomever is selling you the product doesn't present you this EULA before he takes the money from you.
In germany it basically has to be like this:

- you take the box out of the shelf (or put it into your online basket)
- you go to the checkout (or press the corresponding button in the online order application)

Now, in this moment the cashier (or the company thats selling online) has to present you the complete EULA for you to read and accept. Otherwise the EULA isn't part of the business conditions which cannot be altered after the next step, which is

- you pay the money and leave the store (or website)

In germany it doesn't matter if you could possibly read the EULA online on your own as in germany it's not the responsibility of the single customer to get their information from the manufacturer, but it's the responsibility of the dealer/manufacturer to give you the EULA in complete form just before the deal is closed.

It seems like is totally different in the US. And to be honest, i feel like many US citizens cannot realize these fundamental differences.

What i described above could be the loophole that PearC uses to be able to continue selling their computers.

In the past i tried to return an opened software because of licencing issues. The box was openend and therefor the company i bought the software didn't take it back. Returning policies are, as far as i know, only working for unopened boxes unfortunately.

I find it hard to believe that every company that sells software in Germany is completely ignorant of German law. The software industry cannot exist with its current business model if licenses are unenforceable. Why would anyone buy a full version when upgrade and OEM licenses have the same value?

Additionally, if the license is void, what gives the consumer the right to install and modify the software? Copyright law still applies, and it has the same basic ideas in Europe that it does in the US.

I'm not saying that your understanding is right or wrong, but there has to be more to the picture. Apple's lawyers, as well as those of the rest of the companies that sell software in Germany, are not all idiots. They don't include a copy of the SLA in German for fun.

Of course there is a bit more to this. I just read that all this applies to the end user. If it applies to companies like PearC as well, i don't know, but Apple didn't sue them, yet. And without a legal case in court they will just continue selling their clones just as Psystart would've done if Apple hadn't sued them.
Additionally i don't know if using an EFI emulator like PearC does for their installations of Snow Leopard is against copyright laws in germany, as the part of the EULA, which prohibits this is void and these days an altering of installed parts of Mac OSX isn't necessary anymore in most of the installations if the hardware meets certain conditions (fakesmc.kext, chameleon and a disabler.kext of any sort are usually all you need to get a working installation).
A german court would've to make the decision if the installation of unaltered software is in fact a violation of copyright in regards to german laws.

I think all this is quite difficult to understand and tbh it starts to outgrow me. I personally never would buy a clone from a company, but build my own hackintosh, like i did before i bought my Mac mini and iMac, so i don't care if Apple sues them or not. If Apple thinks PearC is no threat to them, fine with me, if they sue them it's fine for me as well. It's Apples decision and not mine, yours, ours after all. They have to answer the question if PearC is a threat and if it's worth to sue them in germany.

But we cannot make the assumption that the courts decision in the US has any influence on german or international cloners. Just because the court makes it illegal to sell clones in the US doesn't make them automatically illegal in other countries.

 

[clyde2801]

Laporte forgets that Apple has always been protective about their IP. I also know that Laporte understands about protecting their IP as well (he has his own brands which he has had to protect after all). Furthermore I dispute the notion that Apple has ever been a company that has a reputation of doing no wrong - practically everything they do has been criticized by the public for years. I also find the notion of Apple being thought of as the next Microsoft is practically ludicrous MS was sheer evil in their actions. What has Apple done to stop anybody from making a competing product to anything that it sells? Where is the aantitrust suit that was broguht up against Apple?

I contend that there are about as many people who think that Apple could do no wrong as there are who feel the same as any other company - they are a vocal minority.

I am in no way saying that Apple is beyond reproach - on the contrary they have done some pretty foolish and stupid things. However I am pointing out that Leo Laporte tends to go out of his way to not be seen as a fanboy and his job is to ask probing questions. Of course, despite all of this, he still buys Apple products. That doesn't make him right or make is opinion beyond reproach either. There are several things that Leo Laporte has said about Apple that have turned out to not be the case at all (for example Leo's statements about the Apple stores).

I simply believe that Leo is mis reading the public perception of Apple based on his past experiences. Leo has admitted in the past that he was a Fanboy and he is really trying hard to not come across as biased - however he is projecting his opinion based on talking points from opinion writers and not the companies themselves. Who's to say that the tech writers are guilty of pervaying the notion that "Apple can do no wrong"? After all, without an anti-trust case against Microsoft, who else can they portray as a villain?

Thank you for your well reasoned and well written rebuttal. It was actually a pleasure to read someone disagreeing with me.

 

[pdjudd]

What i described above could be the loophole that PearC uses to be able to continue selling their computers.

Remember though, licensing was only a portion of the Pystar case. Allsup didn’t even summary judge the “breach of contract” portion. He ruled on copyright violations. Its copyright that prevents Pystar from selling clones. Without an EULA to agree, they go from little copy rights to none. That would be the thrust of Apple’s case. Not to mention that PearC is acting as a distributor - Psystar couldn’t argue that they could distribute OSX and I doubt that these clowns can argue it too.

In the past i tried to return an opened software because of licencing issues. The box was openend and therefor the company i bought the software didn't take it back. Returning policies are, as far as i know, only working for unopened boxes unfortunately.

If you look at the box that OSX (and most other retail software like office), they warn you right on there that you have to accept a license and that you have to have a Mac. It’s right there on the Box.

Of course there is a bit more to this. I just read that all this applies to the end user. If it applies to companies like PearC as well, i don't know, but Apple didn't sue them, yet. And without a legal case in court they will just continue selling their clones just as Psystart would've done if Apple hadn't sued them.

True. However I can point out that in the US, business have higher expectations than individuals do to check licensing. PearC might argue that they were unable to accept once, but there is no way that they cannot argue about subsequent copies that they made when they setup cloning images (which they do). Without a lawyer that specializes in business law to say otherwise, I really doubt that you can create a business model that involves copyright violation, DMCA equivalent (which in Europe has no exceptions and Apple has already proven applies) and dealing with another persons property anywhere. I am willing to bet that Germany has the same or similar rules regarding IP, you cannot copy or distribute modified works without the owners consent - Judging by my research, Germany does acknowledge things similar to that.

Second, there is that pesky fact that redistributing OSX in Hackintosh form almost certainly involves breaking Apple’s protections. In the US, it was ruled to be effective regardless of how easy it was to bypass. PearC won;t have it that easy either - the European equivalent to the DMCA has no exceptions.

Additionally i don't know if using an EFI emulator like PearC does for their installations of Snow Leopard is against copyright laws in germany, as the part of the EULA, which prohibits this is void and these days an altering of installed parts of Mac OSX isn't necessary anymore in most of the installations if the hardware meets certain conditions (fakesmc.kext, chameleon and a disabler.kext of any sort are usually all you need to get a working installation).

The EULA can be a side issue. The thrust of the Psystar case is about copyright. The instance that I cited before seems to imply that without a license, you have no rights to copy or re-distribute. These guys are dealing with copying from a master source and copying the same thing over and over again.

And again, what parts of Apples license has been shown to be void in a court of law? In the US, it was upheld. I doubt that it has been tried anywhere. And the specifics of the EULA might not matter - you have to violate copyright in some way to run a clone business. Maybe once they can get away with arguing the license is void, but when it comes to distribution, I doubt that they could argue that they can be allowed to argue that they are not aware of a license or even argue that they could redistribute said code without permission.

A german court would've to make the decision if the installation of unaltered software is in fact a violation of copyright in regards to german laws.

Thats where the european DMCA could fall in. There are no exceptions. Apple employs protections that you have to get around

But we cannot make the assumption that the courts decision in the US has any influence on german or international cloners. Just because the court makes it illegal to sell clones in the US doesn't make them automatically illegal in other countries.

True - however we cannot just willingly assume the opposite is true either. I contend that there is no way a court is going to argue that anyone can start a business based on copyright infringement. Apple has alot of ammo on this and I am willing to bet that they are going to use very similar arguments should they go after these guys. I personally feel that the courts are not going to set a precedent that can harm the rights of businesses who would be unwilling to do business in Germany should they find themselves unable to enforce their copyrights.

What we really need though, is commentary from a lawyer who specifies in German law who can comment on the expectations that businesses have when they are involved in distributing other companies intellectual property when that companies intellectual property is defined by US laws (as with OSX). The problem is that we have no such thing (that I can locate) nor do we have an analogue that I can locate or read.

 

[pdjudd]

Thank you for your well reasoned and well written rebuttal. It was actually a pleasure to read someone disagreeing with me.

I actually like Laporte’s programming - I regularly listen to several of his shows weekly. I still disagree with him on several things just like I agree with him on many others. Leo is an opinion guy just like alot of other tech pendants like Dvorak and others.

 

[balamw]

I did, but this doesn't mean anything in germany. The dealer, Amazon, Apple has to present the EULA in german language before you as the customer pay for the product.

As pdjudd says and Judge Alsop affirmed in this case in the US, not accepting the license doesn't mean you can disregard copyright law.

You must believe there is some allowance in German law to make copies of the contents of the DVD that is independent of the limited copying (installing, running) rights provided by the license?

B

 

[pdjudd]

As pdjudd says and Judge Alsop affirmed in this case in the US, not accepting the license doesn't mean you can disregard copyright law.

Bingo. I can't believe another contry, no matter how customer server orientied their laws are, would allow for something so anti-business. Were you to establish a precidence based on that, it would affect alot of compnaies who not only exist in Germany, but operate and sell in that country. I doubt Germany is going to harm their economy like that and rely on people importing all of the IP out there, much less be known for the ease in which you could violate copyright.

You must believe there is some allowance in German law to make copies of the contents of the DVD that is independent of the limited copying (installing, running) rights provided by the license?

B

My guess is that Germany has some automatic exemptions like the US (like making a back-up copy), but most things related to copyright are still determined by the IP owner. In other words, you just can't do fundamental things like altering IP for profit shrink wrap license or not. Again, I am not a German IP lawyer or a businss lawyer so I cannot say for sure, but I doubt it simply becasue that would dissuade alot of people who deal with creative works or any IP in general.

 

[jweinraub]

There's nothing illegal about selling a computer with no OS included, if you simply include instructions on how to install OS X on it after the sale. (Even if you include software that aids in that process, there's nothing illegal about that either, unless you used someone else's code without permission.)

While you are correct there isn't anything illegal about selling computers without an operating system, it is very much illegal if you sell instructions, software, or any mechanism that is designed to circumvent copy protection. This would be a violation of Title 17 USC 12, § 1201. Circumvention of copyright protection systems.

(a) Violations Regarding Circumvention of Technological Measures. — (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.

....

(b) Additional Violations. — (1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that —

(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;

(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

That being said, Psystar will then be liable under the DMCA. They are getting desperate.

The only way around it would be is if one were to do a very clever Google search, one may find the information needed. That is how some region free DVD players go by doing it to avoid the MPAA hassling them. They sell a region 1 player. One googles unlock foobar tech dvd player and voilà!

 

[cathul]

As pdjudd says and Judge Alsop affirmed in this case in the US, not accepting the license doesn't mean you can disregard copyright law.

You must believe there is some allowance in German law to make copies of the contents of the DVD that is independent of the limited copying (installing, running) rights provided by the license?

B

As i said in another thread (i guess, lost overview ) it's starting to outgrow me.

In the end it all boils down to the question when will Apple sue other cloners in different countries?, right?
US-court decisions aren't binding to european courts/laws and vice versa. Apple finally has to sue every other clone maker all over the world, which i'm totally fine with as long as they don't sue the end users who install their own hackint0shs just for fun and without any intentions to resell these hackint0shes.

I had one myself (selfbuild, not bought from some obscure company) and now have two Macs (actually, my girlfriend took my mini so i had to get an iMac for me). Without the hack i never would've bought a Mac, so Apple sold two Macs and one full licence of Leopard (for the hack) and two upgrades to snow leopard.
The last hack installation i had used only three kexts and Chameleon as bootloader. All kexts were open source so you can get the source code for free and analyse it, which i believe Apple already did. Chameleon as it stands is a derived work from the open source bootloader boot 123, published by Apple themselves. The other kexts are either device drivers, which only add capabilities to run hardware (and are needed by a lot of hardware btw.) and fakesmc.kext which has human readable source code downloadable on netkas.org.