Psystar Loses Again: Appeals Court Says It Can't Install Legally Purchased OSX On Other Hardware
from the copyright-misuse dept
As you may recall, Psystar was a company that tried to make Apple Mac clones by legally purchasing Apple operating systems, and figuring out how to install them on other hardware. Apple sued the company in 2008 for violating its license. Psystar went through a variety of (often questionable) defenses before settling on the one I thought had the best chance: the first sale doctrine — basically claiming they legally purchased the software, and that they should be able to install it wherever they want. Psystar also claimed “copyright misuse,” against Apple, arguing that its EULA restricting installation to only Apple hardware was a form of copyright misuse to stifle competition. Two years ago, though, the court granted summary judgment to Apple, rejecting both arguments.
Psystar appealed, focusing on the copyright misuse argument and, while it took some time, the always slightly wacky 9th Circuit has upheld the ruling. The court, tragically in my opinion, buys Apple’s argument that its EULA does not unfairly restrict competition, because Psystar could go find a different operating system, rather than Apple’s. Here, the court relies on the awful Vernor v. Autodesk ruling that basically said, “as long as a software company claims it’s leasing the software to you, rather than selling it to you, your first sale rights disappear.” This is true even if the “sale” really is a sale rather than a lease. It all depends on what you call it.
So, in this case, the court ruled that the copyright misuse claim must fail, because it’s really an attempt to create a “right of first sale” for software — and because Apple pretends its software sales are licenses, there is no right of first sale. So, without that… no copyright misuse. If you think this logic is circular, you should see if you can become a judge on the 9th Circuit, since they appear to need help. Furthermore, it argues that since Psystar could just go write its own operating system there is no copyright misuse:
Apple?s SLA does not restrict competitor?s ability to develop their own software, nor does it preclude customers from using non-Apple components with Apple computers. Instead, Apple’s SLA merely restricts the use of Apple?s own software to its own hardware. As the district court properly concluded, Apple’s SLA has “not prohibited others from independently developing and using their own operating systems.” Apple I, 673 F. Supp. 2d at 939. Psystar produces its own computer hardware and it is free to develop its own computer software.
As with the Vernor case, the reasoning here is convoluted. It’s really just another court decision that chips away at first sale rights, which are (were?) an important part of copyright law.
Filed Under: clones, copyright, copyright misuse, first sale, license, mac clones, sale, software
Companies: apple, psystar
Comments on “Psystar Loses Again: Appeals Court Says It Can't Install Legally Purchased OSX On Other Hardware”
“because Apple pretends its software sales are licenses”
Apple isn’t pretending anything, they are stating a fact.
You are having a bad week Mike, you are probably happy it’s Friday. No more court rulings that screw up your world view until at least Monday afternoon.
Re: Re:
Real shame that this ruling doesn’t stop everyone else from making a Mac clone if they wanted to.
Re: Re: Re:
No, it’s not. Apple does not need to be bothered about people building hackintoshes on their own. The DIY community is not their target market, and really is nothing but a positive thing for OS X in general.
What I don’t see mentioned anywhere in the discussion here is Psystar were selling a MODIFIED installed copy of OS X with their machines, but including the box of unmodified software with the purchase. If they had not included that installed copy, how would this case have gone?
While I’ll buy the argument that you should absolutely be able to resell a purchased copy of OS X, I’m not sure why anyone thinks it’s OK to then modify that software slightly, use it to sell cheaper machines and undercut Apple that way. Apple develops OS X to sell hardware, and license it the way they do to enhance the value of that hardware.
The argument would probably go that Apple should change their business model then. Which is a valid argument. And you’ll note, they have. You now have to buy OS X through the app store from an existing mac, no more boxed copies which can be resold. The thumb drive version is available, but at more than double the price, and will likely disappear after 10.7.
But you can now put it on every mac in your house for the one price, no family pack premium to pay. So it is pretty plain here Apple’s primary goal is to use OS improvements to make their hardware attractive. Not to sell the OS as a product. They want to avoid having this improved OS used against them competitively by other hardware makers. So what is the appropriate way for them to do this that would meet with the approval of copyright minimalists and defenders of first sale rights? Which includes me.
They used to do so by having differentiated hardware (PPC). That got minimized to the EFI differences which were more easily circumvented, with us arriving at the current situation.
What should they do?
Re: Re:
Still mad bro?
Re: Re:
Apple isn’t pretending anything, they are stating a fact.
And if Apple’s EULA said you could only use their OS while naked with peanut butter and jelly smeared all over your body, would you obey it?
Re: Re:
“Apple isn’t pretending anything, they are stating a fact.”
Another fact Apple states is customers can *buy* OSX:
http://www.apple.com/macosx/how-to-buy/
How can you buy something which is not sold? I can’t even think of they trying to trick customers.
Re: Re: Re:
How to buy a license… Nice try, but fail.
Re: Re: Re: Re:
The word “license” does not appear on the page detailing how to “buy [OSX] Lion”. Nice try, but fail.
Re: Re: Re: Re:
Sorry I didn’t find anything about how to buy a license, just how to buy the OS. Contact Apple if you need more information.
Re: Corporate shills will be the death of us.
If you buy a copy of something, there is no magical license. You have personal property rights relating to that physical copy.
This was adjudicated a long time ago with books. Apparently some people have short memories.
what if i sell hardware running virtualbox with a properly licensed OSX on it? I would really want to see the arguments and ruling in a virtual infringement case.
See, this is why you should reject osx/windows and use linux/haiku/BSD/other free os.
Then you don’t have to deal with people making you follow bullshit clauses on how you can use your legally aquired software. At most you just have to give others the same rights you recieved(and the source code) when you redistribute the OS. Following the golden copyleft rule and all that.
Well, at least in places with sane patent laws anyway.
Re: Re:
I agree. Too bad there’s hardly anyplace left with sane patent laws.
I’ve never bought an Apple product in my life, and Apple is constantly reinforcing that decision.
Now, if other people would just do the same thing…
Re: Re:
See, this is why you should reject osx/windows and use linux/haiku/BSD/other free os.
And you can get all the same software, including games, for those operating systems? Does Walmart carry Linux software? Can you get ALL the software you need in pre-compiled, binary form without having to fiddle around with MAKE?
Re: Re: Re:
You bring up a failure of a point, WHY do software companies write in code that can be used by mac and windows? Because everyone uses it, if everyone were to use linux, it would lean towards linux, not even 4 years ago mac was completely useless for video games.
Re: Re: Re: Re:
You bring up a failure of a point, WHY do software companies write in code that can be used by mac and windows? Because everyone uses it, if everyone were to use linux, it would lean towards linux, not even 4 years ago mac was completely useless for video games.
It’s a catch-22; Most people don’t want to use an OS unless there is a lot of software support, and companies don’t want to support an OS unless there are a lot of users.
Re: Re: Re:
actually most GPL software installation on *nix nowadays do not need the user to know about MAKE any more, it’s done transparently on the installation (scripting – learn about it).
Also Apple themselves had to remove A LOT of software from OSX (Samba, bash, to name just 2) because they were covered under the GPL and for Apple to claim exclusivity for their licensing was actually breaching the GPL & in some cases LGPL.
The easiest thing is if you for some reason want to purchase an Apple device [why no one knows since they are too expensive for their actual worth], or some one gives one to you, or however else you might acquire it It is easier to either load Windows on the thing, or even different flavours of *nix.
In fact a lot of OIS devices can now be LEGALLY hacked (not cracked) to allow Linux to be loaded on them, I would suggest that Android on Apples is not too far away either, and that would scare the bejeezus out of Apple since then the App market is wide open.
Re: Re: Re:
1. You can find linux replacements for the things most people use, for games playonlinux is useful for simplifying wine installs of windows games. It may or may not play the lateest games, but what is known to work is more than enough to keep you occupied for a long long time
2. Most linux software is free anyway, so the walmart thing is a moot point for now. Also there’s this place that sells linux games that’s global and open 24/7. It’s called the internet. And soon there will be that desura client for steam store-like goodness.
3. Make? You cna just click on what you want in the package manager in any good desktop focused distro
Re: Re: Re: Re:
1. You can find linux replacements for the things most people use
What happens when a person needs to run a specific piece of software for their job, or their classes? Saying it will probably under WINE isn’t going re-assure too many people.
for games playonlinux is useful for simplifying wine installs of windows games. It may or may not play the lateest games, but what is known to work is more than enough to keep you occupied for a long long time
If someone wants to play the latest Call of Duty game that just came out, they’re not going to be happy with a sorta-similar game from 2-3 years ago.
Re: Re: Re:2 Re:
“1. You can find linux replacements for the things most people use
What happens when a person needs to run a specific piece of software for their job, or their classes? Saying it will probably under WINE isn’t going re-assure too many people.”
You find an alternative or you pool together with other entities and pay a programmer to implement something for them all.
I very much like this part it means mostly local jobs with international support.
Or go back to the proprietary options some are really good, but then you go back to the treadmill upgrade thing, the closed source that you can’t modify, the closed platforms that make you pay dearly like the 30% Apple store, with the price hikes and so forth.
For education there is no reason why schools should not use open source it is pretty well supplied with pretty good options that in some cases are the de facto #1.
Now games oh well, we all need to learn to make some sacrifices.
Both have strengths and weakness, I would not go back to proprietary software I can do everything with open solutions today and I really don’t long for the days that I had to spend $3K a year just in personal upgrades for all the software that I use, or get lock out because the software license expired.
Re: Re: Re:2 Re:
I said “most people”. Most people just need things for common tasks like web browsing, text editing, music and the like. all of which linux has. Get these users and any missing apps that everyone else needs will follow.
Most people aren’t the type who absolutly must have the latest COD. They don’t need “AAA” gaming, they just want “good enough”. Linux has reached this for me.
For shooters, Red eclipse, xonotic, Orange box/goldsrc stuff(wine), ID’s FPSes(and the mods for them)
For RTS there’s warzone 2100, 0 A.D, (mega)glest. spring engine stuff and starcraft 2/1 in wine.
Then there’s the indie stuff you can buy like lugaru, world of goo, gish ect.(also cave story, but that’s free)_
All the visual novels. If it’s one thing linux definatly has it’s lots of visual novels.
Re: Re: Re:2 Re:
Well then, if you can’t run it under WINE (and you probably can), then use a windows box. If it’s for work, you can get your employer to provide the box. If it’s for school, then you’ll very likely do just fine with the Linux alternatives, which can read and write the same file formats as the proprietary stuff does.
Then they’ll be happy, since that runs under WINE. As does between 80 and 90% of all games nowadays.
Re: Re: Fanboy silliness
Your response is just so full of fail.
We are talking about MacOS here and you start rambling on about games, GAMES of all thing.
That’s the reason to run Windows, not MacOS. MacOS is not much better than Linux in this regard. This is especially true if you are unfortunate enough to have Mac hardware that is not supported by major studio games.
I have 2 Minis like that.
Can licensed software exist?
The problem with Mike’s worldview is that in his world, licensed software cannot exist. It doesn’t matter if you sign a contract, agree that you’re not buying the software but rather just acquiring a license to use it in a limited fashion, the second the software company gives you a DVD or even just the files themselves, you suddenly own that software and can do whatever you want with it. Of course, if that’s true, then the GPL is meaningless. I can get GPL’d software, sell it to someone else, and they are under no obligation to follow the GPL and can do whatever they want with that code. As long as I keep “selling” them a license (even if it’s for just a penny), they can sell modified GPL software without having to release the source code.
I understand the frustration here, but Apple does not release Mac OS X DVDs for people to buy to install on non Apple hardware. They only reason they exist it so that people who have older Macs can upgrade to the latest version of Mac OS X. PJ over at groklaw puts it best when she points out that this ruling is good for the GPL. It’s good caselaw that shows you cannot ignore the GPL just because the person who sold it to you didn’t force you to abide by the license agreement and screamed “Right of First Sale!”
Re: Can licensed software exist?
As long as they can’t stop others from making their own solutions I don’t see the problem, the problem only exist because of copyrights and patents in the software world, if there were no rules that wouldn’t be no problems since everybody would be able to use anything from anywhere whatever the way they liked, improve it, share it with the world or not, copy, be copied and so forth.
Re: Can licensed software exist?
Also I have absolute confidence that without any rules, open source would still thrive, but IP trolls would wither and die.
Re: Can licensed software exist?
Apples and oranges.
The GPL would still apply if you made additional copies as copyright law does not legally allow copying unless the copyright holder consents. The GPL is a notice bundled with the software that says “I’ll consent to copying IF” and is thus valid even if EULAs aren’t.
Re: Re: Can licensed software exist?
But I wouldn’t be copying the software, just selling it.
Re: Re: Re: Conflating many things...
If you are “merely selling it” then in all likelihood you are probably just transferring one shrink wrapped box from one person to another. You can do this with Free Software too but it is less common these days.
What the GPL governs is activity that no commercial software will permit you to do to begin with. Apple won’t let you be your own publisher or create derivatives of your stuff.
Buying and then selling something in a consumer friendly box is simply not something that the GPL applies to.
Re: Re: Re:2 Conflating many things...
Please don’t confuse commercial with closed source.
Re: Re: Can licensed software exist?
Yes that seems true. If a court were to characterize this as a sale then the LIMITS of a EULA could not apply. But the PERMISSIONS of a EULA could still apply, not as a LICENSE but as PERMISSION from the copyright holder – permission to modify the work on the condition that once modified, any derivative work software sold must offer the code. Or any other restriction. A GPL type EULA isn’t needed to ensure no one will build a derivative work without permission – the law already does this. It seems this would allow for first sale AND protection of certain rights – a good balance.
Re: Can licensed software exist?
agreed.. really sick of mikey’s drivel on here. He has no respect for the products people create and has this immature sense of entitlement that he should get everything for free and do whatever he wants with it. I wonder the last time he ever paid for anything that he couldn’t steal.
Re: Re: Can licensed software exist?
Strawman + liable + falsely equating copying to theft?
It’s a monopolytard triple platter!
Re: Re: Can licensed software exist?
Short response:
Citations needed
Long response:
You are ignoring the multiple posts where he states exactly the opposite of what you claim.
You are calling names in the same breath you speak of immaturity.
You claim to be really sick but you post multiple times a day with religious dedication.
Summary troll fail 3/10
Maybe you should contact someone about a refresher clinic.
Re: Re: Can licensed software exist?
Simple solution: GO AWAY!
You are really a moron (or a masochist, or both) if you continue to expose yourself voluntarily to something you don’t like.
Re: Re: Can licensed software exist?
Why are you here? I fail to see why you remain here if Mike’s “drivel” is so hard for you to stand. Go away!!
Re: Re: Can licensed software exist?
Then stop reading it. Problem solved!
Re: Can licensed software exist?
“but Apple does not release Mac OS X DVDs for people to buy to install on non Apple hardware.”
I don’t care why they release them. They’re selling the software to the general public. If they aren’t recovering their costs, they are free to increase the cost of the software.
I have little sympathy for companies with business models that cause part of their operation to lose money. I should have every right to buy printer ink, razor blades, calling plans, or computer hardware from some company besides the one I bought the printer, razor, cell phone, or OS from.
Re: Re: Can licensed software exist?
So basically you’re saying that if a company wanted to, they could buy one copy of a piece of software and install it on all 100,000 machines they have, and if the software company wasn’t smart enough to charge 100,000x their list price of their software, well, that’s their fault for not having the right business model.
Re: Re: Re: Can licensed software exist?
So basically you’re saying that if a company wanted to, they could buy one copy of a piece of software and install it on all 100,000 machines they have, and if the software company wasn’t smart enough to charge 100,000x their list price of their software, well, that’s their fault for not having the right business model.
All of the copies were legally purchased.
Basically, you’re saying that if Apple wanted to, they should be able to make a legally binding rule that you could only use their OS while dressed in a chicken suit and making clucking noises.
Re: Re: Re:2 Can licensed software exist?
Or more in the realm of pseudoreality, what if the EULA said you could only use the OS on your Apple hardware for 1 year? After that, you have to buy new hardware because the license expires and you can’t renew it on the same hardware. I don’t see how that’s any more a violation of first sale than this case is.
Re: Re: Re:3 Can licensed software exist?
FYI: all CAD software used in ASIC business is being sold on such terms i.e. you pay EACH YEAR for every single license.
Ignorance is a bless, I see.
Re: Re: Re:4 Can licensed software exist?
And I’m sure that’s made clear in the agreement that the customer signs with the vendor. This is a different situation than clicking a EULA and downloading software you bought with your credit card, from a page that tells you how to “buy” (not license) the software.
Re: Re: Re:4 Can licensed software exist?
Are you sure?
http://opencores.org/
Re: Re: Re:4 Can licensed software exist?
http://oss.sgi.com/projects/inventor/
SGI has open source solutions
But they are not the only ones.
http://www.opencascade.org/
http://sourceforge.net/apps/mediawiki/free-cad/index.php?title=Main_Page
Re: Can licensed software exist?
I understand the frustration here, but Apple does not release Mac OS X DVDs for people to buy to install on non Apple hardware.
Actually unless, because of this case, the person is on selling that hardware with the OSX on it for commercial gain as a NEW product, Apple has no ability to say what the software can and cannot do and where it can be placed.
If Joe Bloggs purchased a copy of OSX, places it on his hackintosh and uses it for his own use (and that includes within an organisation) Apple can’t do squat other than say “Oh you have breached the EULA” guess what the breach causes no harm, and that’s where this court case relied upon. Apple proves that they suffer fiduciary harm from the EULA breach (Psystar were on-selling the OSX and hackintosh’s as new and not for their own purposes)
PJ has a good point when he states it is good for GPL (copyleft) but he is using it in the context of commercial purposes for resale not for individual usage.
Re: Can licensed software exist?
“It doesn’t matter if you sign a contract, agree that you’re not buying the software but rather just acquiring a license to use it in a limited fashion,”
Not once have I or anyone else here signed a contract for the software we use. If I’m in a store and pick up a boxed copy of some software, I’m not sat down with a piece of paper and a pen, and then told what I can and cannot do with it. We’re only ever told the restrictions AFTER paying. If we reject them, we can’t return the software, because its been opened and used.
Click Here to Agree, is not a valid contract. Because there is no way to prove who clicked the mouse button. It could be a minor: I did it myself thousands of times when I was a kid. Am I still bound to the licences then?
Re: Re: Can licensed software exist?
Exactly
I have never ever signed a lease or licensing contract! I go into a store, grab the game DVD and fork over some cash at the counter.
No paper work. No one even mentions any agreements, contracts or anything.
If they want to “licence” software to the customer, then the marketing should be clear on that point.
Re: Can licensed software exist?
Then put it in bold faced letters on the front of the box, not buried 8 paragraphs deep in leagalize.
I want to use Inferno.
http://en.wikipedia.org/wiki/Inferno_%28operating_system%29
Who Really Wins?
“The court … buys Apple’s argument that its EULA does not unfairly restrict competition, because Psystar could go find a different operating system, rather than Apple’s.”
Indeed they can, and I can think of several Linux distros that do a moderately good job of replicating OSX’s user interface, which would wipe out one of Psystar’s larger production expenses overnight. And Apple just lost a bunch of software sales and earned themselves a lot of negative PR, apparently for no better reason than because they have an obsessive need to tell their customers what to do with the things they sell them.
Re: Who Really Wins?
Yes, just look at all the negative publicity Apple continues to get over this case? wait, no, almost nobody is paying attention anymore. Psystar is yesterday’s news.
And with the tight hardware/software integration people have come to expect from mobile devices, combined with digital-only software distribution methods coming to the desktop, this issue of installing OS X on non-Apple hardware is becoming increasingly irrelevant – for better or worse.
In fact, a cautionary tale can be found in the story of Google’s Android. With the Kindle Fire (and particularly its Silk browser), Amazon seems ready to use their fork of Android to completely destroy Google’s original business reason for creating Android in the first place. There are a significant number of ramifications for Google if Amazon’s tablet becomes more popular than stock Android tablets (such as app makers being incentivized to target Amazon fork of the platform first, derailing future Android development), which these articles do a good job of explaining in more detail.
Of course, Google deliberately chose to release (some of) the Android source code as open source, whereas Apple made it clear from the outset that OS X was only intended for use on Apple’s own hardware. In either case, you can’t expect a for-profit company to continue expending so much money and development effort on software that will be used to completely undermine that company’s ability to profit from that investment. Either they’ll fight to defend their business model, or they’ll eventually get out of that business altogether. So it has nothing to do with your tired accusations of control-freakery, and everything to do with a company needing a business justification for what they’re doing.
(And contrary to your assertions, the Hackintosh market is so small as to be irrelevant from Apple’s perspective, so threats of losing “a bunch of software sales” from the Hackintosh community are absurdly laughable, given the huge software sales they’re seeing though their App Stores – to say nothing of their hardware profits, which is where they actually make their money.)
Re: Who Really Wins?
I never realized that the sale of apps was a significant component of Apple’s business. Last time I looked Apple was a hardware manufacturer (and has always been almost exclusive a hardware manufacturer). This is a distinction that makes all the talk about Apple and Microsoft as somehow being direct competitors seem somewhat silly.
Re: Who Really Wins?
example
Just don't buy these products
Simple, there are many unencumbered products and systems you can use, just don’t contribute to Apple/Microsoft/Oracle/whoever.
You gotta love the misleading headline of this article, too. Psystar are free to install “legally purchased” OS X on other hardware if they so choose, just like any other private Hackintosh owner. They’re simply prohibited from trying to *sell* those machines to others. An important distinction that the headline (perhaps intentionally) obscures.
Re: RE:
It’s Psystar, they’re known as a hackintosh seller. It’s kind of implied that’s what the lawsuit is about.
Re: Re:
You’re really accusing Mike of slanting a headline in Apple’s favor?
EULA on the Box
This is simple. Require that the ENTIRE EULA be printed on the OUTSIDE of the box in 16pt type, while restricting the box size to current standards.
I wonder which clauses they will feel the need to keep?
Re: EULA on the Box
EULA on box is fine if I get a dick in the box.
“How to buy a license… Nice try, but fail.”
Point to where it says you’re buying a license… Nice try, but fail.
Keep your crap Apple – your OS and your hardware.
Whatever...
You sleep with dogs, you get fleas.
You support the CrApple monopoly on hardware AND software as well as the method for distribution (the “App Store” which they control with an iron fist), you deserve whatever you get or do not get, from them. Just make sure you bought CrApple Care, ’cause you’re gonna need it!
While I think this ruling is stupid. I also think Psystar were even dumber to even consider trying to use OS X. Everybody knows Apple won’t share it’s OS. I say that’s fine. We have others to choose from if they want to get so pissy about it.
Psystar should have put it’s money and efforts into build a solid Linux or BSD distro. A well polished version of either OS with well polished applications would be more than a match for Apple. Hence the reason they are fighting Samsung in the courts.