Psystar brings new litigation against Apple Computer, Inc.

[Grant A.]

http://news.cnet.com/8301-13579_3-10142226-37.html

They do bring an interesting point, I really hope Psystar wins.

[Skripka]

'Tis the season for litigation.

Psystar doesn't have a chance...to me this looks like they are scratching at the walls for an argument to rationalize in legal terms what the are doing. That being said, I'm rooting for them--but I think their failboat has already set sail.

[juanmoreno92]

"I am beginning to wonder what is cheaper, an Open Computer or Psystar's lawyer."

:lolflag::lolflag::lolflag:

[KiwiNZ]

They have no chance of wining and should not win. They are trying to profit from leaching and stealing.

Edit : I mean Psystar should not win



http://news.cnet.com/8301-13579_3-10142226-37.html

They do bring an interesting point, I really hope Psystar wins.

[Grant A.]

They have no chance of wining and should not win. They are trying to profit from leaching and stealing.

You're right on that point, but I just hope they are able to get Apple to remove that pesky "do not install on non-apple hardware" clause in the EULA.

[smartboyathome]

Shouldn't one have the right to say how and on what their software is used? I think so. Since Apple chose to limit their operating system to Apple computers, I won't use it. Plain and simple. ;)

[SunnyRabbiera]

They have no chance of wining and should not win. They are trying to profit from leaching and stealing.

Edit : I mean Psystar should not win

I think apple asks for it personally, to @#$v with their EULA

[KiwiNZ]

Microsoft , Apple, Sun, HP IBM all have the right to place what restrictions they see fit on their products.
Dont like it? dont buy it and dont steal it



I think apple asks for it personally, to @#$v with their EULA

[BGFG]

They have no chance of wining and should not win. They are trying to profit from leaching and stealing.

Edit : I mean Psystar should not win

I dislike apple greatly as a company, but if their license states that their OS is not to be installed on non-apple hardware, Pystar has no ground to stand on.
Your rights to proprietary software extends as far as the license under which it is governed when you purchase said software.

[gnomeuser]

I personally see there being more interesting legal matters that needs taken against Apple. E.g. they are abusing their mp3 player monopoly position to force everyone to use iTunes, there is e.g. no technical value with the cryptohashing of the iPod databases in the newer models aside making it prohibitly hard for 3rd parties to interact with the players.

For the case at hand, one would though have to agree that extending copyright holders rights beyond first sale is a deviation from copyright law as it is typically found. Clearly we need to consider the legal impact of allowing such things, the rules are unclear.

The same type of case was recently had in my native Danmark, and we are now not allowed to resell mp3s we bought and paid for but e.g. might not like anymore.

One place where I see this as being useful, my laptop came with Vista and I have been stonewalled when it comes to getting a refund. So I am now sitting on a perfectly legitimate Vista license, why should I not be allowed to resell it? And if I am allowed to resell my licensed copy of Vista, why should what PsyStar is doing be much different?

[saulgoode]

They have no chance of wining and should not win. They are trying to profit from leaching and stealing.


Microsoft , Apple, Sun, HP IBM all have the right to place what restrictions they see fit on their products.
Dont like it? dont buy it and dont steal it

There is no theft taking place. Psystar is purchasing copies of OS X. There is possibly breach of contract taking place and perhaps copyright infringement -- but not even The Apple Company has made any accusation of Psystar "stealing".

[cardinals_fan]

You're right on that point, but I just hope they are able to get Apple to remove that pesky "do not install on non-apple hardware" clause in the EULA.
I think they have the right to do that. Fortunately, I have the right to buy something else :D

[handy]

If you think Psystar are fighting for freedom from EULA's, have a read of this page on their website:

http://psystar.com/opensource/ppl/

:lolflag:

[mips]

If you think Psystar are fighting for freedom from EULA's, have a read of this page on their website:

http://psystar.com/opensource/ppl/

:lolflag:

Is that for the code the 'took' from the OSX86 project?

[handy]

Is that for the code the 'took' from the OSX86 project?

:lolflag:

Perhaps.

Or perhaps Psystar are operating on the belief of their new legal claim; that after the "first-sale" they are not bound by Apple's EULA, so they think that they should install their own to fill the vacancy for the next "first-sale". :-)

[jomiolto]

I wonder if Psystar could get away with it in a country where EULAs are not legally binding? I haven't seen any Mac clones around here, but then again Macs are so unpopular where I live that there would be no market for them, anyway. But it just might be legal here...

Also, I'm probably not the only one that thinks EULAs are a huge PITA, if you actually want to adhere to them. Almost every piece of software and web service comes with a several pages long EULA that is written in legalese (instead of real English ;) ), and it would take a lot of time to go through all of them carefully enough to understand all the limitations and such. If I had to do that, I'd probably just use USENET and the e-mail provided by my university and avoid anything else :p

[Skripka]

and the e-mail provided by my university and avoid anything else :p

Didn't you have to sign an EULA for that too? ;)

[MikeTheC]

Oh my God... When are these folks going to learn to pick their battles more wisely?

[jomiolto]

Didn't you have to sign an EULA for that too? ;)

There were some terms of service, but only a few short items and most of them made sense (security stuff and such), so I didn't really mind that :)

[geoken]

In ambiguous cases the job of the judge is to ascertain 'the spirit of the law' and act accordingly.

"Once a copyright owner consents to the sale of particular copies of a work, the owner may not thereafter exercise distribution rights with respect to those copies."

The spirit of that law is pretty obvious. You can't sell something to someone, then after the sale impose previously undisclosed rules on the terms of the sale. To claim they are acting in accordance with the spirit of that law, Psystar will need to argue that they were, and continue to be, unaware of the terms of sale associated with buying OS X.

[mkendall]

Shouldn't one have the right to say how and on what their software is used? I think so.

Why? Why should software have a different standard than, say, a car? If I buy a car, I don't recieve notice that I cannot drive the car off the road. I may be told that the car is not designed to be driven off-road and no warranties or guarantees are given or implied if I drive it off-road, but I'm not told that I cannot drive it off-road, and if I choose to do so I face possible lawsuits from GM/Ford/Toyota. Why should it be any different for software? Apple can state that the software is designed for Apple hardware and no guarantees are given or implied if the purchaser chooses to install it on non-Apple hardware.


I think they have the right to do that. Fortunately, I have the right to buy something else

Let's turn that around. If Apple doesn't want their software on non-Apple hardware, they have the right to not sell it.

[init1]

I personally see there being more interesting legal matters that needs taken against Apple. E.g. they are abusing their mp3 player monopoly position to force everyone to use iTunes, there is e.g. no technical value with the cryptohashing of the iPod databases in the newer models aside making it prohibitly hard for 3rd parties to interact with the players.

It's their device. If they want to make it hard to use anything except iTunes, it's their choice.

[zmjjmz]

Why? Why should software have a different standard than, say, a car? If I buy a car, I don't recieve notice that I cannot drive the car off the road. I may be told that the car is not designed to be driven off-road and no warranties or guarantees are given or implied if I drive it off-road, but I'm not told that I cannot drive it off-road, and if I choose to do so I face possible lawsuits from GM/Ford/Toyota. Why should it be any different for software? Apple can state that the software is designed for Apple hardware and no guarantees are given or implied if the purchaser chooses to install it on non-Apple hardware.



Let's turn that around. If Apple doesn't want their software on non-Apple hardware, they have the right to not sell it.

Unfortunately there's been a practice of EULAs with proprietary software. If you signed a contract that said that you can't drive your new Civic offroad and that you were liable to lawsuits if you did so, you could face litigation.

[cardinals_fan]

Also, I'm probably not the only one that thinks EULAs are a huge PITA, if you actually want to adhere to them. Almost every piece of software and web service comes with a several pages long EULA that is written in legalese (instead of real English ;) ), and it would take a lot of time to go through all of them carefully enough to understand all the limitations and such. If I had to do that, I'd probably just use USENET and the e-mail provided by my university and avoid anything else :p
Did you read the GPL before starting to use Linux?

[Grant A.]

Did you read the GPL before starting to use Linux?

That big block of text? No one reads those nowadays. :KS

[cardinals_fan]

That big block of text? No one reads those nowadays. :KS
That's what I don't like about the GPL. In an attempt to block every little transgression, they wrote a mind-numbingly dull block of legalese.

[KiwiNZ]

In NZ they are required to be written in plain English and must be readable before any seal is broken.

[Grant A.]

In NZ they are required to be written in plain English and must be readable before any seal is broken.

Wouldn't that make the GPL inviable in a New Zealand court of law?



That's what I don't like about the GPL. In an attempt to block every little transgression, they wrote a mind-numbingly dull block of legalese.


That's probably the reason why the BSD and MIT licenses are so popular. All strong copylefts are ~3 pages long.

[KiwiNZ]

No


Wouldn't that make the GPL inviable in a New Zealand court of law?



That's probably the reason why the BSD and MIT licenses are so popular. All strong copylefts are ~3 pages long.

[cardinals_fan]

That's probably the reason why the BSD and MIT licenses are so popular. All strong copylefts are ~3 pages long.
...and written like this:

When you convey a covered work, you waive any legal power to forbid circumvention of technological measures to the extent such circumvention is effected by exercising rights under this License with respect to the covered work, and you disclaim any intention to limit operation or modification of the work as a means of enforcing, against the work's users, your or third parties' legal rights to forbid circumvention of technological measures.

Convey the object code by offering access from a designated place (gratis or for a charge), and offer equivalent access to the Corresponding Source in the same way through the same place at no further charge. You need not require recipients to copy the Corresponding Source along with the object code. If the place to copy the object code is a network server, the Corresponding Source may be on a different server (operated by you or a third party) that supports equivalent copying facilities, provided you maintain clear directions next to the object code saying where to find the Corresponding Source. Regardless of what server hosts the Corresponding Source, you remain obligated to ensure that it is available for as long as needed to satisfy these requirements.

No covered work shall be deemed part of an effective technological measure under any applicable law fulfilling obligations under article 11 of the WIPO copyright treaty adopted on 20 December 1996, or similar laws prohibiting or restricting circumvention of such measures.

[DigitalDuality]

d

[KiwiNZ]

Why

Boeing couple Boeing engines to Boeing Jets
Ford engine to ford cars
so on so forth

You want OSX buy Apple
Dont want it Buy Dell

[zmjjmz]

Why

Boeing couple Boeing engines to Boeing Jets
Ford engine to ford cars
so on so forth

You want OSX buy Apple
Dont want it Buy Dell

I don't see Ford suing anyone for using their engines in non-Ford cars.

[jrusso2]

Why

Boeing couple Boeing engines to Boeing Jets
Ford engine to ford cars
so on so forth

You want OSX buy Apple
Dont want it Buy Dell

Except I can buy a chevy engine and put it into any car I am capable of putting it into. With no warranty from Chevy except for the engine.

Boeing does not make engines. General Electric or RollsRoyce or maybe even Pratt and Whitney might make them and I have seen them out of a jet or helicopter go right into a jet dragster.

[phrostbyte]

Except I can buy a chevy engine and put it into any car I am capable of putting it into. With no warranty from Chevy except for the engine.

Boeing does not make engines. General Electric or RollsRoyce or maybe even Pratt and Whitney might make them and I have seen them out of a jet or helicopter go right into a jet dragster.

++
Wow we agree on something

[KiwiNZ]

I don't see Ford suing anyone for using their engines in non-Ford cars.
They would if a Ford dealer tried in New cars

[zmjjmz]

They would if a Ford dealer tried in New cars

So if a dealer took Ford V8s out of Mustangs and put them in Honda Civics, Ford would sue the dealer?
That seems very unlikely.

[KiwiNZ]

So if a dealer took Ford V8s out of Mustangs and put them in Honda Civics, Ford would sue the dealer?
That seems very unlikely.

No if a Ford dealer took the engines out of New Fords and put Honda motors in them to sell as new cars they would sue

[zmjjmz]

No if a Ford dealer took the engines out of New Fords and put Honda motors in them to sell as new cars they would sue

They could only sue for defamation of their trademark because at that point it's a custom made car, not a Ford. But the dealer would have to be explicitly stating that these are Ford cars for that to work. And that's what Psystar is not doing -- They are not in any way claiming that these are Apple computers.

[KiwiNZ]

This is semantics . They purchased OSX knowing the conditions of sale. They, without duress entered into a contract as equals .
They have breached that contract and agreement therefore have left themselves open to redress.

[Firestem4]

Except I can buy a chevy engine and put it into any car I am capable of putting it into. With no warranty from Chevy except for the engine.

Boeing does not make engines. General Electric or RollsRoyce or maybe even Pratt and Whitney might make them and I have seen them out of a jet or helicopter go right into a jet dragster.

I couldn't help myself =P Take a look.
http://www.youtube.com/watch?v=HCD63w3l2UQ&feature=related

[jrusso2]

I couldn't help myself =P Take a look.
http://www.youtube.com/watch?v=HCD63w3l2UQ&feature=related

Sweet ):P

[phrostbyte]

This is semantics . They purchased OSX knowing the conditions of sale. They, without duress entered into a contract as equals .
They have breached that contract and agreement therefore have left themselves open to redress.

Something that is written in a contract isn't always enforceable. That's partly Pystar argument. Secondly, integrating hardware and software and not allowing that software on any other hardware might be a violation of the first sale doctrine, which prohibits copyright holders from controlling secondary sales. Basically it is possible that Apple's EULA is against the law.

[KiwiNZ]

Something that is written in a contract isn't always enforceable. That's partly Pystar argument. Secondly, integrating hardware and software and not allowing that software on any other hardware might be a violation of anti-trust and consumer laws, basically it is possible that Apple's EULA is against the law.


Its the courts that will finally decide.

However my feeling is that the conditions were not covert , they are there for all to see. I also believe that Pystar knew they were in violation , but for reasons really only known to them they felt the risk was worth taking. Time will tell on that .

I dont particularly like the Apple EULA , but its their product and they are free to condition it .

Personally I think Apple would make a bundle if they released their OS to all. I dont believe it would greatly affect their hardware sales.

It will of course make the development of the OS a lot more complex.

[phrostbyte]

Its the courts that will finally decide.

However my feeling is that the conditions were not covert , they are there for all to see. I also believe that Pystar knew they were in violation , but for reasons really only known to them they felt the risk was worth taking. Time will tell on that .

I dont particularly like the Apple EULA , but its their product and they are free to condition it .

Personally I think Apple would make a bundle if they released their OS to all. I dont believe it would greatly affect their hardware sales.

It will of course make the development of the OS a lot more complex.

Well I hope Pystar wins, because I don't believe copyright holders should have total control over what they ALREADY sold to consumers. If I bought something I damn well have a right to use it in any way I want (other then copying it - perhaps), anything else is ridiculous. I don't look forward to the day where everything I buy doesn't actually belong to me.

And yeah I think Pystar knew what was in the EULA, but the "conditions" in the EULA are illegal (according to them), so they don't feel adhering to an illegal EULA as relevant or necessary.. Anyway Pystar is no small fish, it could be that a bigger fish is controlling it (Dell, HP, maybe someone else?) because they actually have a powerful legal team and are very willing to take on Apple head on.

[MikeTheC]

Thoughts on this... (well, ok, further thoughts):

1. Mac OS X is "less broadly compatible" because Apple chooses to write it that way. This includes either the removal of support for, or the deliberate effort not to include support for a broader range of hardware. Moreover, supporting the greater range of hardware is a (relatively) trivial task.

2. Third-party drivers supplied to Apple are custom-spec'd, sometimes being spec'd the deliberately not support that manufacturer's full range of product, support which not necessarily absent in other releases of that driver (say, nVidia product support for the Mac OS X driver vs. their Windows driver or Linux driver).

3. Apple deliberately is trying to keep their software corralled to running on just their own hardware. This is not an inevitable consequence, but a deliberate design choice. Take a look at Linux. Obviously it is possible and feasible to support a very broad range of hardware. Moreover, such trails have been blazed by both F/OSS developers and Win16/32/64 developers for many, many years.

4. The general public has far more power in this regard than any one single entity, such as Psystar, will ever have. And that's because we have the power of the public veto. It generally works whenever it's tried. When is it that the general public is going to finally wake up to this fact?

This whole court process is stupid because it puts the emphasis on the wrong thing. The best way to get Mac OS X onto non-Apple hardware is to vote with your wallets. If Apple gets a sufficient number of requests, they'll do it. Likewise, if a sufficient number of people stop doing business with them, they'll do what they have to to correct that. But so long as they're making money in the volume and at they rate at which they are, obviously what Psystar wants to achieve is never going to materialize.

[utnubuuser]

Aren't these issues to bring to the attention of your govenrment representatives?

[saulgoode]

This is semantics . They purchased OSX knowing the conditions of sale. They, without duress entered into a contract as equals .
They have breached that contract and agreement therefore have left themselves open to redress.
Was the contract presented at the time of the sale?

Was agreeing to the contract a condition of the sale?

Did the seller make any effort to determine that the buyer was empowered to enter into contracts (e.g., was the buyer old enough)? Was there a requirement that the buyer could not let someone un-empowered (e.g., a minor) agree to the "shrink wrap license"?

Is there any record of who actually agreed to the contract?

-----------

I am all for recognizing and honoring sales contracts; however, shouldn't they be sales contracts not just because the seller "says so", but because there is a legitimate and recorded agreement between the parties?

[MikeTheC]

Aren't these issues to bring to the attention of your govenrment representatives?

Why must government always be the solution to everything?

This is not a criminal situation. Apple is acting within it's rights, regardless how anyone else feels about it. Financially, Apple is not being reckless or irresponsible. Legally, they're not in violation of any kind of anti-trust laws. Quarter upon quarter, since the beginning of Steve Jobs' return to apple in 1997, Apple has been steadily climbing profits, sales figures, stock value, and share returns. They are also providing significant technological and conceptual leadership both within and outside of the tech industry. Moreover, they are providing serious competition for Microsoft in the war of ideas.

Many of us wish we could pick-and-choose, but seriously can anyone here argue they're being injured by Apple?

[bryncoles]

i liked the car-software analogies people brought out earlier. reminded me of this car-software analogy...

http://news.bbc.co.uk/1/hi/technology/4347325.stm

also reminded me of this article which states taht EULA's amy well not be legal (in the UK anyway)

http://news.bbc.co.uk/1/hi/business/7252707.stm

as they're written in impenetrable legalese, and often not available at the time of purchase but only upon opening the product, which then is taken as tacit acceptance of the eula!

none of which is relevant to this case though!

[Erik Trybom]

I hope Psystar wins, but I don't know what the American law says in cases like these. There are two questions:

1) How many of your rights can you waive by signing a contract?
2) Is clicking "OK" as legally binding as a signature?


In many countries there are rights that cannot be negotiated, such as the right to return the product for a repair or replace if it turned out to be faulty. If a contract or an EULA says such rights are not to be granted, then the contract is in violation of the law and is therefore not valid (at least not on that point). The first-sale doctrine could very well be such a law, but from a quick look it seems like the legal situation is unclear in the US.

By no means should this case be dismissed as obvious.

[geoken]

Was the contract presented at the time of the sale?

Was agreeing to the contract a condition of the sale?

Did the seller make any effort to determine that the buyer was empowered to enter into contracts (e.g., was the buyer old enough)? Was there a requirement that the buyer could not let someone un-empowered (e.g., a minor) agree to the "shrink wrap license"?

Is there any record of who actually agreed to the contract?

-----------

I am all for recognizing and honoring sales contracts; however, shouldn't they be sales contracts not just because the seller "says so", but because there is a legitimate and recorded agreement between the parties?

Again, as kiwiNZ said, you're arguing semantics and completely ignoring the spirit of the law.

The first sale doctrines are meant to protect people from buying products which require then to submit to terms which were unbeknown to them at the time of sale.

So for a single user, purchasing something, then prior to the sale being presented with a EULA, the laws could apply because the user could reasonably argue that he/she was ignorant of the yet undisclosed terms. In this situation it would completely fall within the realm of what the original precedents intended to protect against.

For a company who knowingly violates the existing EULA, and purchases the product even after they had the EULA clearly dictated to them by lawyers, the laws should not apply. In this situation the buyer is taking advantage of the first sale doctrine. They're completely ignoring the intent of the law, and trying to use it as a loop-hole to circumvent conditions that they are explicitly aware of.

The point of the law is not to allow a customer to violate conditions that they were fully aware of prior to the purchase because said conditions happened to be written in the box. The point is to protect people against conditions they weren't aware of.

[geoken]

By no means should this case be dismissed as obvious.

Yes it should. The EULA talk is just a Red Herring.

Apple could basically come out and say, "Fine, we concede that EULA's inside boxed software are invalid" Psystar still wouldn't have a case because the terms of sale were explicitly conveyed to them by Apple's Lawyers at which point Psystar continued to violate those terms.

The EULA's are irrelevant because Psystar was made aware of the terms of sale through various avenues outside of the contested EULA.

[saulgoode]

Again, as kiwiNZ said, you're arguing semantics and completely ignoring the spirit of the law.
I didn't argue anything -- to do so would be a violation of this forum's policy which prohibits expressing an opinion on legal matters.

I merely posed some questions.