Psystar Winding Down Business as Web Site Goes Dark

[*LTD*]

On the contrary, I'm so disappointed by Apple's repeated un-American approach to ideas and their expressions that I've decided to move myself away from Apple. I'm encouraging the same of my clients. I feel neither entitled nor not entitled to what Apple thinks up - I simply don't want to deal with such an entity at all.

But why even make such distinctions? If you like Apple products and they appeal to you in terms of interface, usability, etc., then just use them. Why make it a matter of principle? All you're doing is a disservice to yourself and your clients. What, do your clients want to build hackintoshes? Why steer them clear from Apple on grounds of Apple's EULA when they'll likely never even put themselves in a position to infringe on it in the first place? For the average Apple consumer, Apple's EULA is never a concern. They'll run OS X on Macs and that's it.

By protesting against this win for Apple, you're also protesting against much smaller entities, often one-man operations where the object is to sell software, fonts, art, etc., and where they rely on the integrity of IP law to make a buck and keep from getting ripped off.

Apple is simply doing, acting, behaving, etc., insofar as the law allows, nothing more. I'm not sure how the designation "un-American" fits in here. What, then, is "American" supposed to be in this context?

 

[KnightWRX]

At purchase, I gave Apple some money and they agreed to give me a copy of the software. I didn't agree to later read and agree to any further terms, returning the software otherwise.

Yes, you did :

 

[cmaier]

Yes, you did :

I think his argument is his fingers were crossed. Of course, that doesn't work.

 

[*LTD*]

Yes, you did :

If I'm not mistaken, that's a requirement for all "clickwrap" agreements anyway, where the product is boxed/packaged.

 

[Veri]

Since 16th century England you have been able to accept the terms of a contract merely by accepting the benefit of the bargain.

OK, taking that line, what is the benefit of the bargain? When I took my copy of OS X home, Copyright law already let me install and enjoy on one machine, occurring as a result of my handing over dollar to the cashier and getting a copy of the software. Contract terms presented, consideration exchanged, contract terms fulfilled. Thanks Apple.

Clicking "Accept" does nothing more than take away privileges I otherwise had. It's not even something I'm likely to have to do, unless I install the software by precisely the method Apple wants me to. And I never agreed to install the software by the method Apple wants me to.

A contract involves interaction, but acceptance may be accomplished merely by an action (and, in some cases, even by inaction).

But such action or inaction must involve interaction with another party, unless I've agreed otherwise by some previous interaction with another party. At no time did I agree to regard the list of terms in the EULA as a contract to which I must agree.

The right to keep reading the paragraph is something I already have - it's not your paragraph, it's macrumors'.

If Copyright in all posts is transferred to Macrumors, yes - I don't recall reading such a term. If I'm wrong, I apologise and would appreciate a link to (dis)abuse me!

you cannot choose to take the benefit without the liability.

Again, I obtained the benefit and exchanged my consideration when I bought the product.

Code may or may not be speech, but it is certainly not the type of speech entitled to the highest level of protection since it doesn't contain YOUR ideas.

The Constitution explicitly excludes protection of another person's ideas "for a limited time" specifically "to promote the progress of Science and the Useful Arts". After the reasonable time (which is currently not reasonable), or in the case that this clause does not apply, I see no language in the First Amendment to suggest that my repeating or building on someone else's ideas should be less protected than any other form of speech.

Further, speech can be restricted even without authority of specific Constitutional provisions.

My argument has been based on off-line click-through EULAs being un-capitalist and un-constitutional; that other laws may be unconstitutional is no excuse. Anyway, detail:

You cannot slander someone, for example.

And so generations of appeal to authority, because it is assumed that the law will deal with liars with a loud voice. Outside the tabloid realm, scientists work on reputation built through repeated proven correctness; crackpots are simply ignored.

You cannot yell fire in a crowded theater unless there is a fire.

Wow. No. Schenk, which used that very argument, was overturned in Brandenburg v. Ohio.

You cannot incite violence.

Well, specifically, afaict, you cannot incite immediate lawlessness. This is a time-limited pragmatic exception to deal with the nastiness which may occur between your incitement and the arrival of law enforcement.

You cannot publish top secret information.

This is a 20th century innovation: Yardley's manuscript was seized over accusations of espionage, which would, I guess, be Treason. Some might argue that publishing information which might prejudice national security might in general be Treason:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

...but probably not, by the spirit of the Framers, since they were especially adamant to avoid overly broad interpretations of Treason.

You may not print your employer's trade secrets.

This could be regarded as another valid application of the Copyrights/Patents clause.

(something on the outside of the box)

When I bought my Mac online: I supplied my CC details, I agreed to terms of sale which did not include any "agree to the EULA" clause, and I got the Mac by courier a few days later.

When I bought my OS X upgrade in the store: I asked for a copy of OS X, it was taken from the shelf and scanned, I handed my CC to the cashier, the CC payment was authorised, and I was handed the copy of OS X. At no time did the cashier ask me whether I agree to a sentence printed on the side of the box. He didn't even point it out to me. If he had, I'd have requested a full copy of the EULA, taken time to read through it, and asked him to make written note of witnessing my agreeing it.

In short, I was sold a copy of OS X without agreeing to the EULA, or agreeing to the choice of agreeing to an EULA or returning the software - or even being given that choice. If I had even merely been handed the box, I would argue that the store was acting unethically (i.e. in an un-capitalist, un-American fashion) by knowing that I could not have been making informed consent unless I had been presented with the EULA. Capitalism is about voluntary trades between informed individuals - it is not about taking advantage of an uninformed consumer through expecting them to agree to terms not disclosed until after exchange of consideration.

I would further argue that buying something with some words written on an easily accessible part of it does not imply agreeing to those words. I've also bought unsealed Bibles. The Bible, or the copy of OS X, is my benefit for exchange of consideration - it does not constitute the terms of a contract! I may regard any words presented as I please, unless I've agreed otherwise through voluntary interaction with the other party. It's not for the government to agree with a Catholic's interpretation of "This is the word of the Lord" written on the front of a Bible, or Apple's interpretation of "You must agree to some words written in this box" written on the side of a box. Again, the box and the Bible are not the terms, they are my benefit.

To be positive for a moment: the fact that Apple do present terms for required agreement at the time of sale is an indication that they are taking advantage of people potentially not being aware of, reading, understanding and/or agreeing to the EULA. If Apple consider their EULA reasonable, they should present the EULA for required agreement at time of sale. If consumers consider their EULA reasonable, they will agree. Right?

 

[KnightWRX]

When I bought my OS X upgrade in the store: I asked for a copy of OS X, it was taken from the shelf and scanned, I handed my CC to the cashier, the CC payment was authorised, and I was handed the copy of OS X. At no time did the cashier ask me whether I agree to a sentence printed on the side of the box. He didn't even point it out to me. If he had, I'd have requested a full copy of the EULA, taken time to read through it, and asked him to make written note of witnessing my agreeing it.

In short, I was sold a copy of OS X without agreeing to the EULA, or agreeing to the choice of agreeing to an EULA or returning the software - or even being given that choice. If I had even merely been handed the box, I would argue that the store was acting unethically (i.e. in an un-capitalist, un-American fashion) by knowing that I could not have been making informed consent unless I had been presented with the EULA. Capitalism is about voluntary trades between informed individuals - it is not about taking advantage of an uninformed consumer through expecting them to agree to terms not disclosed until after exchange of consideration.

So you're using the "but I didn't read the small characters" defense ? Too bad that got thrown out quite a while ago.

You do realise that the world doesn't work the way you want it to work just because you feel it should right ? The simple fact is, the EULA is clearly indicated to be a condition to use of the product, it is available before the purchase for your reading.

Your failure to actually do so does not make it any less valid.

 

[cmaier]

OK, taking that line, what is the benefit of the bargain? When I took my copy of OS X home, Copyright law already let me install and enjoy on one machine, occurring as a result of my handing over dollar to the cashier and getting a copy of the software. Contract terms presented, consideration exchanged, contract terms fulfilled. Thanks Apple.

17 USC 117 only applies if you have a legal copy. You can't steal a copy from the apple store and then "install it on one machine." Your copy is legal if you agree to Apple's terms.

The Constitution explicitly excludes protection of another person's ideas "for a limited time" specifically "to promote the progress of Science and the Useful Arts". After the reasonable time (which is currently not reasonable), or in the case that this clause does not apply, I see no language in the First Amendment to suggest that my repeating or building on someone else's ideas should be less protected than any other form of speech.

The U.S. Supreme Court disagrees with you re: whether the time is reasonable. I agree with you. It's not reasonable. But the law is the law.

As for "I see no language" nope. It's not there. But the U.S. Supreme Court says that some types of speech (e.g. political speech) are more protected than others (e.g. commercial speech) and some are not protected at all (e.g. obscenity, libel, etc.). Code has been found to have a low level of protection.

You remind me of one of those guys that says Federal income tax is unconstitutional. As a district court judge once told me, "they're entitled to their opinion, and I'm entitled to put them away for a very long time."

 

[Veri]

17 USC 117 only applies if you have a legal copy. You can't steal a copy from the apple store and then "install it on one machine."

Agreed.

Your copy is legal if you agree to Apple's terms

No, it's legal if I've not stolen it and I've adhered to Copyright law. If I had agreed to a further contract, it would apply too, but I don't see any reasonable way to regard me as having agreed to it. If I haven't agreed to the EULA, I also haven't agreed to return the product for a refund through not agreeing to it, so my use of the product is reasonably governed by Copyright law alone.

But the law is the law.

Yes. I'm arguing that the law is being unreasonable on several matters, to the point of contradicting the Constitution. I accept that precedent does not help Psystar, so any battle would be a great investment in time and money.

But the U.S. Supreme Court says that some types of speech (e.g. political speech) are more protected than others (e.g. commercial speech) and some are not protected at all (e.g. obscenity, libel, etc.).

Yes. "Some are more equal than others." It's as nonsensical in the West as in a parody of the old East. Still, protected.

You remind me of one of those guys that says Federal income tax is unconstitutional. As a district court judge once told me, "they're entitled to their opinion, and I'm entitled to put them away for a very long time."

I'm not sure. It's another topic. I'm arguing about the spirit of Constitution as reflected in the writings of the FFs, and the spirit of capitalism as reflected by 18th and 19th century capitalist philosophers and economists. District Judges are entitled to apply a law which happens to be unconstitutional (and I'm not arguing that federal income tax is unconstitutional), but that doesn't mean anything beyond their recognising the limited scope of their job.

So you're using the "but I didn't read the small characters" defense ? Too bad that got thrown out quite a while ago.

No, KnightWRX, I'm using the "what's written on the box is what I bought, not a list of terms" defence. I tacked on a penultimate paragraph to my previous post to clarify this; sorry if it hadn't been posted by the time you'd read my post.

I've also argued that "smallprint which you're not presented with in full at the time of exchange of consideration" is unethical and un-capitalist, regardless of whether it's legal.

 

[KnightWRX]

No, KnightWRX, I'm using the "what's written on the box is what I bought, not a list of terms" defence. I tacked on a penultimate paragraph to my previous post to clarify this; sorry if it hadn't been posted by the time you'd read my post.

I've also argued that "smallprint which you're not presented with in full at the time of exchange of consideration" is unethical and un-capitalist, regardless of whether it's legal.

But the terms are clearly indicated to be a condition of purchase on the box. Their location is clearly given. There is no reason to ignore them unless you want them to not exist.

You are the perfect example of the entitlement generation we were talking about earlier.

 

[Veri]

But the terms are clearly indicated to be a condition of purchase on the box. Their location is clearly given. There is no reason to ignore them unless you want them to not exist.

Not at all: "use of".

Anyway, following various rules in the Old Testament is clearly indicated to be a condition of not receiving various trivial and/or horrible punishments, some of which are insane and others of which might be enforceable in contract law. Their location is clearly given by the Table of Contents. The Table of Contents is backed up by a declaration on the front of the Bible declaring the necessity to follow the words inside. There is no reason to ignore them unless... you accept the difference between a contract and some words written on a product now in your possession as a result of a contract.

You are the perfect example of the entitlement generation we were talking about earlier.

The only new sense of entitlement comes from corporations. "IP" (see my previous posts) is a 20th century notion, and the ridiculous extension of copyrights an innovation of the late 20th century.

But who knows? We might be the same age. Moreover, who cares? You are providing interesting points for discussion and it's not necessary to intersperse them with an ad hominem.

What is happening to our young people? They disrespect their elders, they disobey their parents. They ignore the law. They riot in the streets inflamed with wild notions. Their morals are decaying. What is to become of them?

 

[*LTD*]

I've also argued that "smallprint which you're not presented with in full at the time of exchange of consideration" is unethical and un-capitalist, regardless of whether it's legal.

Ok. Write your governor/congressperson, or write a book, or set up Facebook page or something.

All you're doing now is just wasting time.

The old fallback is to blame the law when the law doesn't happen to support your position.

 

[cmaier]

The only new sense of entitlement comes from corporations. "IP" (see my previous posts) is a 20th century notion, and the ridiculous extension of copyrights an innovation of the late 20th century.

Nonsense, again. From wikipedia:

"Although many of the legal principles governing intellectual property have evolved over centuries, it was not until the 19th century that the term intellectual property began to be used, and not until the late 20th century that it became commonplace in the United States."

And there's nothing wrong with "20th century notions." A lot of positive progress, socially, politically, and economically, was made in the 20th century.

 

[*LTD*]

The only new sense of entitlement comes from corporations. "IP" (see my previous posts) is a 20th century notion, and the ridiculous extension of copyrights an innovation of the late 20th century.

http://en.wikipedia.org/wiki/Intellectual_property

Modern usage of the term intellectual property goes back at least as far as 1888 with the founding in Berne of the Swiss Federal Office for Intellectual Property (the Bureau fédéral de la propriété intellectuelle). When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they also located in Berne, and also adopted the term intellectual property in their new combined title, the United International Bureaux for the Protection of Intellectual Property.

The organisation subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations. According to Lemley, it was only at this point that the term really began to be used in the United States (which had not been a party to the Berne Convention),[2] and it did not enter popular usage until passage of the Bayh-Dole Act in 1980.[7]

The concept appears to have made its first appearance after the French revolution. In an 1818 collection of his writings, the French liberal theorist, Benjamin Constant, argued against the recently-introduced idea of "property which has been called intellectual." [8] The term intellectual property can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears." (1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414). The statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years."[9] In Europe, French author A. Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.

The concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as property does not seem to exist – notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century.[10] The Talmud contains the prohibitions against certain mental crimes (further elaborated in the Shulchan Aruch), notably Geneivat da'at (גניבת דעת, literally "mind theft"), which some have interpreted[11] as prohibiting theft of ideas, though the doctrine is principally concerned with fraud and deception, not property.


References

^ Intellectual Property Licensing: Forms and Analysis, by Richard Raysman, Edward A. Pisacreta and Kenneth A. Adler. Law Journal Press, 1999-2008. ISBN 973-58852-086-9[verification needed]
^ a b " property as a common descriptor of the field probably traces to the foundation of the World Intellectual Property Organization (WIPO) by the United Nations." in Mark A. Lemley, Property, Intellectual Property, and Free Riding, Texas Law Review, 2005, Vol. 83:1031, page 1033, footnote 4.
^ Levine, David; Michele Boldrin (2008-09-07). Against intellectual monopoly. Cambridge University Press. ISBN 978-0521879286.
^ Economic Effects of Intellectual Property-Intensive Manufacturing in the United States, Robert Shapiro and Nam Pham, July 2007 (archived on archive.org).
^ Measuring the Economic Impact of IP Systems, WIPO, 2007.
^ Padraig Dixon and Christine Greenhalgh, The Economics of Intellectual Property: A Review to Identify Themes for Future Research, Oxford Intellectual Property Research Centre, Oxford, United Kingdom, November 2002.
^ Mark A. Lemley, "Property, Intellectual Property, and Free Riding" (Abstract); see Table 1: 4-5.
^ (French) Benjamin de Constant de Rebecque, Collection complète des ouvrages publiés sur le gouvernement représentatif et la constitution actuelle de la France: formant une espèce de cours de politique constitutionnelle, P. Plancher, 1818, p. 296.
^ A Brief History of the Patent Law of the United States
^ Jewish Law and Copyright
^ The New York Sun Fighting for Intellectual Property Rights.
^ "Thomas Jefferson's copyright term (fwd)". 11 Feb 1999.
^ Mike Masnick (February 21st 2008). "On The Constitutional Reasons Behind Copyright And Patents". techdirt.

 

[*LTD*]

The only new sense of entitlement comes from corporations. "IP" (see my previous posts) is a 20th century notion, and the ridiculous extension of copyrights an innovation of the late 20th century.

Civil Rights, Women's right to vote, the Universal Declaration of Human Rights, the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) . . .

Damn these ridiculous 20th century notions.

 

[cmaier]

But what's a hundred years when it gets in the way of a confusing point?

 

[KnightWRX]

But what's a hundred years when it gets in the way of a confusing point?

I think his point isn't confusing at all. It's simply that he's entitled to do what he wants, Apple's hard work be damned. Probably a guy with about the same values as the Psystar founders.

 

[Veri]

The old fallback is to blame the law when the law doesn't happen to support your position.

*LTD*, I responded to this point which you made many posts ago. Perhaps I misunderstood what you are trying to say. Surely you are not saying that the law is a reflection of what is morally correct. Surely you are not saying that the law is always self-consistent (e.g. never unconstitutional). So what exactly is your objection to someone declaring that a law, or an application of a law, is wrong?

Modern usage of the term intellectual property goes back at least as far as 1888 with the founding in Berne of the Swiss Federal Office for Intellectual Property (the Bureau fédéral de la propriété intellectuelle).

*LTD*, tut, you're quoting way more than reasonable under fair use without complying with the terms of Wikipedia's licence, which require a mention of the licence . (edit: OK, you've snipped a bit and removed the all-important Jefferson position, discussed above and again below.)

Anyway, I'm not quite sure what you and cmaier are getting at. You both seem to find it significant that the term "intellectual property" was used and considered on isolated occasions outside the US and once inside the US before the 20th century, even while the remainder of the article makes it clear that Jefferson didn't regard that which is protected by Copyrights and Patents as "property" in the natural sense.

For the article makes clear that a common notion of "intellectual property" didn't begin until 1888, and the United International Bureaux weren't established until the final decade. The United States - and I'm fairly sure we've been talking about US law here - did not use the concept until 1967, and was not a party to the Berne Convention until 1988! Before this, it was only party to the Universal Copyright Convention from 1952, which was much less generous to copyright holders.

Civil Rights, Women's right to vote, the Universal Declaration of Human Rights, the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) . . . Damn these ridiculous 20th century notions.

Civil Rights and the woman's right to vote are, as far as I see it, merely reasonable interpretations of parts of the Constitution (yeah, OK, that wasn't once without dispute). The UDHR is a fairly good outgrowth of the Constitution. CPPCG is worth a long argument: I disagree with the notion of treating crimes against a particular group specially - the very idea of it is unconstitutional! - but I'm not about to discuss it here.

EULAs, perpetual copyrights, etc are innovations of the 20th century. I have highlighted this not (how on earth could you so read into this?) to suggest that nothing good has happened in C20, but to suggest:

(1) That it's not an issue of modern generations having a sense of entitlement, as older generations did not have to endure these laws at all;

(2) That these laws have no basis in the beliefs of the FF, particularly as enumerated in the Constitution.

Probably a guy with about the same values as the Psystar founders.

Another ad hominem.

 

[KnightWRX]

Another ad hominem.

My opinion of your ramblings on this forum is not an ad hominem attack.

If you don't like the laws in the United States, run for congress and change them. Otherwise, move to some backwater country with no respect for intellectual property.

It takes time and money to make copyrighted work. To profit from this time and money when you are not the one who invested it is wrong.

Not to mention Psystar was using works that were released in very recent years, within the timeframe of the original copyright terms as ratified in the constitution, so all your rants about perpetual copyrights don't apply.

 

[Veri]

If you don't like the laws in the United States, run for congress and change them.

My current status means I could run as an MP in England, but certainly not for US Congress. But the process of Democracy in the US does not go "if you don't like every US law, run for congress and change them" - for that to be a first course of action would result in a preposterous inefficiency.

I'm exercising the right guaranteed by the US, and fortunately not legislated against where I'm sitting now in England, to use the soap box to help effect political change. Maybe this argument isn't turning anyone I'm replying to here, but I get greater benefit sometimes from a sustained small discussion with those who oppose me than in preaching to the choir or writing to a larger audience. (I ought then, perhaps, to thank you for speaking to me!)

Otherwise, move to some backwater country with no respect for intellectual property.

See previous post for just how recently today's notion of IP appeared in the US. But tell me, are you suggesting, because I think click-through EULAs and modern "IP" law are nonsense, that I disagree with Copyright entirely? Should I perhaps move to China? I mean, it often cares little for international copyright, and it's doing little global trade, right?

It takes time and money to make copyrighted work. To profit from this time and money when you are not the one who invested it is wrong.

Are you arguing that the GPL and BSD licences are wrong, because they allow you to profit from other people's copyrighted work without investing? Your statement alone seems to imply that.

If you're arguing that it's wrong to break Copyright law which is derived from the Copyright/Patents clause in the Constitution, say so. I've not disagreed with such in any posts here.

If you're arguing that anyone with a Copyright/Patent protection has an unrestricted right to restrict how the idea/expression covered by Copyright/Patent is protected, say so. This is going further than merely arguing that the EULA is a contract, and would require you to argue why the Constitution is inadequate and Jefferson's arguments discussed a few times above were wrong.

If all you're doing is arguing that the EULA is a contract, say so. This has nothing to do with Copyright, then, as Copyright law does not require you to abide by an EULA. It's just a contract you happen to believe that OS X purchasers have agreed to.

Not to mention Psystar was using works that were released in very recent years, within the timeframe of the original copyright terms as ratified in the constitution

The perpetuity argument was to counter the suggestion that we're living in a modern entitlement generation. I'm not arguing that a 10 year old OS X wouldn't have been a copyrighted work at the end of C18.

 

[KnightWRX]

Are you arguing that the GPL and BSD licences are wrong, because they allow you to profit from other people's copyrighted work without investing? Your statement alone seems to imply that.

Which part of the GPL and BSD license granting explicit consent to such actions did you miss ? And which part of Apple's license that prevents such action did you also miss ?

You can't respect the open source licenses and not respect Apple's wishes. Stallman, when he wrote the GPL, heavily relied on copyright law to make it work. Without copyright, the GPL doesn't work.

So you're a Brit trying to argue that US laws are unconstitutional and unAmerican ? Maybe try living there for a while before you judge them.

 

[Veri]

Which part of the GPL and BSD license granting explicit consent to such actions did you miss ?

You stated, "To profit from this time and money when you are not the one who invested it is wrong." I was requesting that you clarify whether you actually meant that (edit: as, say, an Objectivist might argue), or whether you meant, "[...] is wrong when some particular licence does not permit it."

You can't respect the open source licenses and not respect Apple's wishes.

Absolutely not. You perhaps are not aware that the GPL is a distribution licence which gives additional rights over and above that required by copyright. It is certainly not a use licence, and it does not prohibit you to do anything that you would otherwise have been able to do.

So, I can disagree with the GPL and still use any piece of software licenced under the straight GPL: I can install and enjoy it on a single machine; I can fair use it; I can uninstall and sell my copy. What I can't do are a few things I wouldn't be able to do anyway under Copyright law: in particular, distribute modifications without making available the source to my modifications.

Meanwhile, the Apple EULA, if I agree to it, restricts what I could otherwise do anyway thanks to Copyright (and other) law. If I were to install OS X on my white box, I'm not breaking Copyright law, I'm just not adhering to the conditions of an EULA which I haven't agreed to anyway.

So you're a Brit trying to argue that US laws are unconstitutional and unAmerican ? Maybe try living there for a while before you judge them.

Maybe I have been there for a while? Maybe it's irrelevant, and this is another ad hominem? I don't think I've shown myself to "judge them" - I'm not even sure who "they" are. If I'm wearing anything on my sleeve, it's my admiration for the US Constitution.

 

[*LTD*]

*LTD*, I responded to this point which you made many posts ago. Perhaps I misunderstood what you are trying to say. Surely you are not saying that the law is a reflection of what is morally correct. Surely you are not saying that the law is always self-consistent (e.g. never unconstitutional). So what exactly is your objection to someone declaring that a law, or an application of a law, is wrong?


*LTD*, tut, you're quoting way more than reasonable under fair use without complying with the terms of Wikipedia's licence, which require a mention of the licence . (edit: OK, you've snipped a bit and removed the all-important Jefferson position, discussed above and again below.)

Anyway, I'm not quite sure what you and cmaier are getting at. You both seem to find it significant that the term "intellectual property" was used and considered on isolated occasions outside the US and once inside the US before the 20th century, even while the remainder of the article makes it clear that Jefferson didn't regard that which is protected by Copyrights and Patents as "property" in the natural sense.

For the article makes clear that a common notion of "intellectual property" didn't begin until 1888, and the United International Bureaux weren't established until the final decade. The United States - and I'm fairly sure we've been talking about US law here - did not use the concept until 1967, and was not a party to the Berne Convention until 1988! Before this, it was only party to the Universal Copyright Convention from 1952, which was much less generous to copyright holders.


Civil Rights and the woman's right to vote are, as far as I see it, merely reasonable interpretations of parts of the Constitution (yeah, OK, that wasn't once without dispute). The UDHR is a fairly good outgrowth of the Constitution. CPPCG is worth a long argument: I disagree with the notion of treating crimes against a particular group specially - the very idea of it is unconstitutional! - but I'm not about to discuss it here.

You stated that Intellectual Property is a 20th century notion. It is clearly not. The notion of IP existed long before. It was simply clarified, elaborated, and codified in the 20th century.

You seem to be tripping over your own language.

The concept appears to have made its first appearance after the French revolution. In an 1818 collection of his writings, the French liberal theorist, Benjamin Constant, argued against the recently-introduced idea of "property which has been called intellectual." [8] The term intellectual property can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears." (1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414). The statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years."[9] In Europe, French author A. Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.

 

[cmaier]

What's funny is he complains about U.S. contract law, but the parts he doesn't like derive from British common law. Then he complains about how everything violates the First Amendment, but in Britain they have some of the worst libel laws that prevent all sorts of things from being published. And god forbid you reveal something the royals don't want you to know. And they fill the place up with cameras to watch you everywhere you go.

Priceless.

 

[Veri]

You stated that Intellectual Property is a 20th century notion. It is clearly not. The notion of IP existed long before. It was simply clarified, elaborated, and codified in the 20th century.

Dude, the discussion of origin/ownership of ideas and expressions has been going on for millennia. Philosophers have debated on the difference between ephemeral and higher knowledge, between theoretical and applied, between discovery and invention: Plato's a good start. The Renaissance Kepler, in his Harmonices Mundi, neatly combined Neoplatonist thought with Hebrew tradition (tangentially related to what you happen to have copy-pasted) by relating the process of scientific discovery to observing (touching?) the "finger of God".

The Holy Roman Empire, as quick to latch on to new technology as the porn industry today, exploited this idea a good century before Kepler: if knowledge was God's, the Vatican should be decider on who gets to publish knowledge. So early Renaissance IP law was about obtaining permission from God's lawyer on Earth to publish God-approved word. Mathematicians such as Commandino had to seek powerful patrons with influence in the Vatican to get their works out.

IOW, notions of ownership of ideas and expressions came way before C19, and even C0. But the notions appeared sporadically in law in modern formulations and using the modern phrase "IP" only in C19. The notions reached international law in late C19, and arrived in US law - it's US law I've been typing about all night - well into C20. The US FFs specifically believed that there was no such thing as ownership of ideas and expressions, and Copyright laws in the US until C20 have been based on the Constitution's Copyright/Patents clause which in turn have been based on the FF's opinion of the necessity to promote science and the useful arts. Pre-mid-C20 US Copyright is not based on any belief in the concept of IP.

What's funny is he complains about U.S. contract law, but the parts he doesn't like derive from British common law.

I've covered what you're getting at here above. See the stuff about when you receive benefit and the difference between terms and benefit.

Then he complains about how everything violates the First Amendment, but in Britain they have some of the worst libel laws that prevent all sorts of things from being published. And god forbid you reveal something the royals don't want you to know. And they fill the place up with cameras to watch you everywhere you go.

This is quite saddening. You initially sustained the conversation with some excellent arguments, but now you've resorted to attacking where I live. I haven't even spoken for or against English law or society.

 

[cmaier]

I haven't even spoken for or against English law or society.

That's my point; you have spoken against American law and society.