Psystar: We bought Mac OS fair and square
Psystar is pursuing a new legal argument in its uphill fight against Apple.
(Credit: Psystar)Psystar is still tilting at legal windmills in its battle against Apple, this time asserting its right to do whatever it wants with products obtained legally from Apple.
After a judge rejected Psystar's antitrust argument--considered its best chance of continuing to sell its Open Computers with Mac OS X preinstalled--the Florida clone maker was allowed to amend its claims against Apple to include other arguments. It has already suggested that Apple is abusing its copyright on the operating system, and now it plans to argue that since Psystar legally purchased its copies of Mac OS X from Apple and resellers, it has the right to do basically whatever it wants with that software under the first-sale doctrine.
Computerworld spotted court filings to that effect submitted by Psystar last week. Here's a key passage:
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. See, e.g., Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51 (1908) (recognizing more than 100 years ago the concept of first sale and the limitations imposed upon a copyright owner in light thereof). Psystar acquired lawful copies of the Mac OS from Apple; those copies were lawfully acquired from authorized distributors including some directly from Apple; Psystar paid good and valuable consideration for those copies; Psystar disposed of those lawfully acquired copies to third-parties.
The problem with this argument is that courts have rarely agreed that the first-sale doctrine applies to software, considering software a product that is licensed, not sold, and can therefore have restrictions attached. There was a case involving Adobe that concluded otherwise, but for the most part courts have tended to side with the software developer.
Apple and Psystar are scheduled to meet next week to discuss the case and the latest arguments.
Tom Krazit writes about the ever-expanding world of Internet search, including Google, Yahoo, online advertising, and portals, as well as the evolution of mobile computing. He has written about traditional PC companies, chip manufacturers, and mobile computers, spending the last three years covering Apple. E-mail Tom. 
Fail
I don't have to hate Apple to dislike bootlicking journalism.
Please read the description above..."Tom Krazit, a staff writer for CNET News, focuses on all things Apple. He has covered traditional PC companies such as Dell and Hewlett-Packard, chip companies such as Intel and Advanced Micro Devices, and mobile computers ranging from Research In Motion's to Palm's."
My only beef is Tom can lose focus at times (i.e. if california sank into the ocean, tom would probably report "Apple campus floods"). Other than that, he reports on what CNET wants him to report on.... all things apple.
You can't buy an Apple computer without an OS. That OS is OS X. When a new version of OS X comes out, you are installing an UPGRADE on the computer you own, or buying a new machine with OS X installed from Apple. The cost of the OS is not just in the upgrade box, but in the original price of the Apple Computer you purchased. There is no "retail price" and "upgrade price" like most other software. This is because there is no "full retail" version of OS X on the market that is free to be installed on any machine.
Whether Psyster likes it or not, they are not using the software according to the license, because they are using the OS X box as a full version of the product, not an upgrade, and circumventing the mechanism in the product that confirms you are upgrading (by checking that you are installing on Apple hardware). They are denying Apple the revenue that comes from bundling the OS with hardware. If Psyster really believed they were in the right, they would have contacted Apple about buying full install or OEM install versions of the OS. Which, of course, don't exist?
If you are running an OS9 box, you would still be upgrading your OS and not doing a complete installation from the bottom up. Also, when you check the box that say "are you installing on Apple hardware" you would not be committing fraud, you would in fact be installing OSX on Apple hardware. Of course, upgrading the memory and hard drive on an OS9 box wouldn't exactly give you the same benefits associated with the newer processors, newer motherboard, faster chipsets or any of the other hardware perks and so would seem to be a much better idea just to upgrade the entire system with OSX preinstalled. Rather than distributing their systems with OSX, why not make a deal with Ubuntu? It's easy to install, easy to maintain, easy to customize for your own installation and the best part, it doesn't come with the same legal headaches. OSX is a great OS, but for the new guys on the manufacturing block, Linux is a much more viable option.
See here... http://lowendmac.com/deals/best-mac-os-x-tiger-prices.html
Version they provide these days, is a full install.
Anyway what does this have to do anything? Upgrade is how you market a product and technical limitations you put in the upgrade software. I think it's ridiclious to suggest the government should enforce that people really do use it as an upgrade install, cause remember that's what you're asking them to do here, you're asking that the government police software upgrades to ensure users really are using it as an upgrade!
The reason is not due to any status as an "upgrade", but for the same reason that you cannot do whatever you please with Windows install media: You're not buying the software - you merely buy a license to use it, under terms and conditions set by the person who made it and sold it to you.
Personally, that's IMHO what's wrong with software in general.
/P
While the "reason" you state is a valid one, the OS is and always be an UPGRADE to the operating system. It is not a full retail package. In the sense that you could install it on any machine you wanted.
Why some older OSX boxes were listed upgrades specifically is that they could be installed as upgrades to those who had already bought a previous OS X, and thus were listed as such. The "full" version was for customers who had remained with OS9 and thus were finally going to OSX.
Which only illustrates the point and the fact that Psystar has not paid FULL price for the product. Apple had 2 prices specifically because those who had 10.3 and wanted 10.4 were merely upgrading and at some point had paid "full price" for the software, while those who were still on OS9 had yet to shell out "full price".
All buyers of Leopard must be upgrading from a previous version of OS X, because Leopard doesn't work on any machine that shipped with OS9 installed nor will it even run OS9 apps without a third party emulator. Thus anyone who buys a retail box of Leopard (like Psystar has done) is buying an UPGRADE to OS X, predicated on the fact that their original cost of their Mac included in it the cost of a full version of OS X. This has brought the price down, because any mac user is buying the "incremental improvements/evolution" of OS X when they buy Leopard, they are not buying the entire license.
This is the same way that Apple is now packaging and pricing iLife '09. Because all Macs ship with it and it won't install on any machine that came with OS9 (requires Leopard), it is an UPGRADE to the "free" product shipped on your computer, because part of the price of the Mac is the initial license fee for iLife.
It is different than how MS packaged Windows, where they had various packages with various features, and different options for OEM, retail, upgrade, etc. But their SP1, SP2, and SP3 were free.
MS would sell a copy of XP Pro for hundreds of dollars but give you free updates and upgrades for years.
Apple installs their "pro" version on every machine, then offers minor updates for free, but charges for true "upgrades" (I'm equating SP1 to 10.2, SP2 to 10.3, SP3 to 10.4 in a simple way here).
Leopard is more similar to Vista in that it dropped support for a lot of things to introduce new technologies. Snow Leopard will be more like Windows 7 in that it's really an evolution of 10.5/Vista, but cleaned up and streamlined.
In the legal world, software is just software. It makes no diff what or why that software is sold, which is why software corps began the weaseling by calling your purchase the purchase of a "license", not as a purchase of software.
Apple has no "full" price of the product, and as they have no means to sell the "full" product, the product they do sell is what will stand or fall on its own merits. There is no line by which First Sale Doctrine can be exempted because of an "upgrade" status. Otherwise every piece of software in existence bigger than your BIOS could be legally called an "upgrade" from the previous state of the computer it was installed on.
So please - enough of the stupid and reductionist arguments about upgrade vs. stand-alone software. It simply does not wash because the law makes no distinction between types of software, only that it is software. If you can prove otherwise, please - either show us the statutes, or kindly shaddap.
thx in advance,
Thats easy,
wii os
ps3 os
Xbox os
ds os
psp os
nds os
palm os
iphone os
blackberry os
Most Phones OS
Do I need to continue?
"As for Macs - ALL Intel Macs come with a TPM chip and Apple uses it for OS DRM. All Macs have an Apple specific private key preinstalled into their TPM which the TPM KEXT checks against a public key to ensure that the computer is a legitimate Apple computer" From: http://wiki.osx86project.org/wiki/index.php/TPM
from Wikipedia
Microsoft introduced UEFI support for x64 Windows operating systems with Windows Server 2008 and Windows Vista Service Pack 1.[17][18] Microsoft claims that the lack of official support for EFI booting on 32-bit CPUs is due to lack of support from PC manufacturers and vendors. Microsoft?s migration to x64 operating systems is not supportable by EFI 1.10, since the x86-64 processor extensions required by x64 operating systems were not a supported processor binding. Support for x86-64 was added in UEFI 2.0. Microsoft has released a video with Andrew Ritz and Jamie Schwarz explaining Pre-OS support involving UEFI on Windows Vista and Windows Server 2008.[19]
Also only the first generation of intel macs have a tpm chip and it is not used for drm. IT seems that you are confused about what a tpm chip is and is used for read this link....
http://www.osxbook.com/book/bonus/chapter10/tpm/
However the tpm chip was used for a similar purpose in 10.4.1, that is the first combo update of tiger. The current version of tiger is 10.4.11, the current version of leopard is 10.5.6. You can also look at this thread on insanelymac.com...
http://forum.insanelymac.com/index.php?showtopic=65786&hl=tpm+chip
That stated if you have an early intel mac you can use the tpm for its intended purpose, which is to secure your computer.
You may be thinking of the smc. You can read about that here.
http://en.wikipedia.org/wiki/System_Management_Controller
Which brought incompatibilities to PCs for obvious reasons.
Thank you timber2005, I did not know that fact. I have not used vista x64 SP1 on my mac yet to know.
DrtyDogg you must be confused again because if their were pcs before apple started to switch to intel in 2005 what operating system did they boot? Since the first version of windows to support efi was vista x64 sp1. And the first versions of linux that supported efi were ubuntu 8.04 and Fedora 9.
I am sorry but I do not go among my posts without research.
you state that you do research but you missed the fact that Windows XP, and Server 2003 for Itanium where also able to boot from EFI. As well as your misinformation that "ubuntu 8.04 and Fedora 9" where the first Linux distros that can boot from EFI. elilo allows any distro to boot from EFI and that has been around for over a decade. Try to work on that research a little bit.
it still means Mac OS for all to enjoy
Of course, I'm not a conspiracy theorist.
Not gonna happen, not even going to exist, not even inside Apple.
Apple is under no obligation to sell OSX on terms dictated by Psystar, ie to run on their hardware. It's a license, Apple can set the terms. Your option is to buy a license on their terms, or not at all.
Your torrent question is irrelevant, since a torrent could be posted today. Zmonster's suggestion is brilliant since Apple doesn't have to change/test anything in OS X ... just change the license text. Game over.
I wish Apple would stop wining and just get on with the business of providing high-end computer products. They have a huge fan-base of happy customers and could afford to shrug off Psystar's competition. The ongoing saga between the 2, makes one wonder if Apple is probably lacking in self-confidence, fearing that others could be successful selling their O/S on lower quality machines.
Where is the good-old-can-do-better-spirit?
And if Apple is too narrow minded to concede their, in my opinion, judgement of error, then the courts should allow Psystar to continue with what they are doing, citing fair-usage for customers.
This is silly.
Why would a startup like Psystar commit financial suicide by going in a collision course with Apple?
Last time I checked litigation is not cheap.
Not if your lawyer is Lionel Hutz.
I miss Phil.
As far as software goes, the court opinions are varied, the 7th and 8th Circuits tend to be the most sympathetic to the licensed not sold argument put forward by software companies etc, while other circuits tend to uphold first sale for software. SoftMan Products Co. v. Adobe Systems Inc, SoftMan won the right to re-sell adobe software despite Adobe's claim their software is licensed not sold. There is also Novell, Inc. v. CPU Distrib., Inc, Vault Corp. v. Quaid Software, and Step-Saver Data Systems, Inc. v. Wyse Technology. Rulings in favor of first sale doctrine on software are not rare, you just have look out side the 7th and 8th Circuits.
Now whether first sale applies to what Psystar is doing, is not clear since they're not just reselling.
It is the same rule for OEM Windows that come pre-installed.
Anyways what Psystar is doing is wrong and against licensing terms. Like others have said all versions of Mac OS have been sold as upgrades and there has never been a full version. I applaud their attempts but it is getting fruitless at this point and they are just beating a dead horse.
The first sale doctrine simply says that if you lawfully acquire a copy, you can resell or dispose of it without the authorization or compensation of the copyright holder .
/P
Only Apple sells Macs...
So by your logic, am I legally obligated to be wowed (and express those sentiments) immediately and every time I look at a running Vista box, for fear of litigation?
This makes me curious what Apple is worried about at this point. There shouldn't be any reason, but... well, their actions seem curious of late.
How can they afford the legal fees?
If they are able to pay for the legal fees by the computers their selling then how do they get that many copies of leopard.
How would they buy say 500 copies of leopard? Tell me.
The only problem I had with Psystar, why the heck do they have to use cheap hardware to market it? As with Apple, consumers demand quality. So, go shop for Asus motherboards, Corsair or Patriot memory, a choice of either Nvidia or ATI (that'll be something!) Cooler Master Power Supply. If you're gonna use a good OS, make sure you have the hardware to back it up!
- by Brian January 13, 2009 10:44 PM PST
- Apple owns the Hardware and the Software.
- Like this Reply to this comment
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- by unknown unknown January 14, 2009 2:30 AM PST
- Apple's ownership of the hardware is some what limited, at least as far as patents go, as they rely on the IP of Intel and others for it. Not much is Apple original on the motherboard. They may have copyright for some firmware.
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- by random truth January 14, 2009 4:24 AM PST
- This is why pystars argument holds no water, this is in the license agreement.
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- by Seaspray0 January 14, 2009 9:07 AM PST
- I'm not going to dispute your comment, brian. But I have a question. Is there an agreement you must accept before the software completes the setup? If pystar does not check that agreement (leaves it up to the end user) than how would they be in violation of it? This is a defense that pystar may use. I'm not an expert on copywrite law so don't ask me if they are right or wrong, or what the outcome of all this will be... I'm just keeping trying to keep an open mind on the subject and let the judges (the experts) decide.
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- by ikramerica--2008 January 14, 2009 12:06 PM PST
- Updates: If an Apple Software update completely replaces (full install) a previously licensed version of the Apple Software, you may not use both versions of the Apple Software at the same time nor may you transfer them separately.
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- by Brian January 15, 2009 8:45 AM PST
- Apple retains all intellectual property rights without question.
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Showing 1 of 2 pages (106 Comments)Psystar does not own the license, case closed.
I see a possible patent dispute that Apple should be entitled to win.
OS X is the property of Apple and it was not licensed to be installed on non-Apple brand computers.
1. General. The software (including Boot ROM code), documentation and any fonts accompanying this License whether preinstalled on Apple-labeled hardware, on disk, in read only memory, on any other media or in any other form (collectively the ?Apple Software?) are licensed, not sold, to you by Apple Inc. (?Apple?) for use only under the terms of this License, and Apple reserves all rights not expressly granted to you. The rights granted herein are limited to Apple?s and its licensors? intellectual property rights in the Apple Software as licensed hereunder and do not include any other patents or intellectual property rights. You own the media on which the Apple Software is recorded but Apple and/or Apple?s licensor(s) retain ownership of the Apple Software itself. The terms of this License will govern any software upgrades provided by Apple that replace and/or supplement the original Apple Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Title and intellectual property rights in and to any content displayed by or accessed through the Apple Software belongs to the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such content. This License does not grant you any rights to use such content nor does it guarantee that such content will continue to be available to you.
3. Transfer. You may not rent, lease, lend, redistribute or sublicense the Apple Software. Subject to the restrictions set forth below, you may, however, make a one-time permanent transfer of all of your license rights to the Apple Software (in its original form as provided by Apple) to another party, provided that: (a) the transfer must include all of the Apple Software, including all its component parts (excluding Apple Boot ROM code and firmware), original media, printed materials and this License; (b) you do not retain any copies of the Apple Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Apple Software reads and agrees to accept the terms and conditions of this License. You may not rent, lease, lend, redistribute, sublicense or transfer any Apple Software that has been modified or replaced under Section 2D above. All components of the Apple Software are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications. Apple Software provided with a particular Apple-labeled hardware product may not run on other models of Apple-labeled hardware.
Updates: If an Apple Software update completely replaces (full install) a previously licensed version of the Apple Software, you may not use both versions of the Apple Software at the same time nor may you transfer them separately.
This is the key to the upgrade argument. It clearly states that if you upgrade a computer to 10.5 from 10.4, for example, you then can't use that 10.4 elsewhere. That means that 10.5 has replaced 10.4, as an upgrade, even if the 10.5 was bought as a so called "full retail box."
Because all Apple computers come with the OS installed, any installation of Leopard is an upgrade to the computer. Leopard (in single or family license form) is not a stand alone product, and Psystar can't treat it as such.
No one else can claim the property right under the copyright laws.
For proper intellectual property protection, patents and copyright notices are the legal binding documents designed to protect the owner, in this case, Apple, Inc.