just a unix flavor anyhow?
The irrepressible Hackintoshers that earlier this month were pronounced bleedin' demised, only to respond with a Pythonesque "I'm not dead yet!" cry of defiance, have reemerged with a new business model: T-shirts and Linux boxes. Mid-month, Florida's Psystar was slapped with an injunction by the US District Court for the …
>As they explain it: "A publisher cannot forbid you from reading a book in the bathroom or listening to a music disc while riding your bicycle."
>Clearly, the Floridians continue to have a difficult time understanding the critical distinction between software licensing and software purchasing.
Or maybe they're making the point that it's a bogus and unreasonable mechanism used in the restraint of trade and the denial of consumer rights?
It's reasonable for a software publisher to tell me I can only run their OS on one machine at a time unless I buy multiple copies. It's not reasonable for them to tell me what machine I can run it on, or what I may or may not do with that machine while running their OS.
Copyright law provides publishers all the mechanisms they need to prevent the first course of action. They are abusing the concept and practice of rights licensing to impose improper restraints such as the second, and the comparison to a book publisher who claims that they have not actually sold you a book but merely licensed you to read the content within and that they may therefore impose licensing conditions such as forbidding you from reading it on the toilet is entirely accurate, and a perfectly good illustration of what is wrong with the concept.
If you accept that Apple may use licensing constraints to restrict you from freely running a copy of their OS that you have legitimately purchased and paid for in any way that you please, if you accept that they can tell you what hardware you may or may not run it on, then do you not accept that they may also tell you what software you may or may not run on it? Do you not also accept that they may tell you how you may or may not use that software? The rights that publishers attempt to abrogate to themselves through the use of licensing would allow them to tell you you can't write a critical review of their products using a word processor running under their OS; do you accept that?
The sooner EULAs and click-wrap licensing are understood as a massive rights-grab and thoroughly struck out in the courts, the better. Until then, any publisher that attempts to rob us in this fashion *deserves* to have its software pirated; it's legitimate self-defence to steal from someone who is robbing you.
... "license" do you not understand? God help you if you should ever decide to rent an apartment or a car if you can't even understand this pretty basic distinction.
You don't "purchase" software, you purchase a *license to use it*. Software is copyrighted data. It isn't something you get to "own" any more than you own the words in a novel.
Buy a novel and you've only bought the right to read that particular arrangement of words in the popular "sliced, mashed tree with print on it" format. Nobody cares what you do with the sliced, mashed tree itself, but try scanning and uploading those words onto a website and rabid packs of lawyers will soon sniff you out.
Apple sell *UPGRADE* copies of OS X as a convenience for customers who have bought Apple's own hardware. There is no such thing as a "full install" version of OS X in any shop—online or otherwise. It's not like Windows 7 where you can find both Upgrade and Full Retail versions in your local PC World.
Upgrade? Really, Sean?
I honestly don't see any reference to upgrade on the packaging - or the installer for that matter.
I don't mean to be obtuse, but on my shrink wrapped retail S/L box (described as 'The world's most advanced operating system') the product description next to the bar code reads 'Mac OSX V10.6 Retail Family Pack'. A sticker on the front further states 'Family pack : for up to five computers in one household'.
Admittedly the small-print on the side of the box states 'Requirements : mac computer with an Intel processor'. However, as far as I know a mac computer is one that runs Mac OS X, right?
... do you not understand? I understand every part of "license" perfectly well, as you would know if you had taken the time and expended a little effort to actually understand my comment, and not just pointed your eyes in its general direction and hoped for the meaning to seep into your brain by osmosis. I described the current status quo, and presented an argument to explain what I thought was wrong with it. Your response - "oh, but that's not how it currently is" - is a pretty stupid way to reply to someone arguing that it should be done differently.
>"Buy a novel and you've only bought the right to read that particular arrangement of words in the popular "sliced, mashed tree with print on it" format. Nobody cares what you do with the sliced, mashed tree itself, but try scanning and uploading those words onto a website and rabid packs of lawyers will soon sniff you out."
*facepalm* Yes, dur-brain. Why do you think I made the point about how what computer manufacturers are doing is exactly like trying to tell you what you may do with the sliced mashed tree itself and nothing like stopping you from copying it? Why do you think I said that it was fine for them to insist you can't copy it but not fine for them to tell you how you may or may not use it? And how did you miss my point that this implies that copyright law is already sufficient to defend the publishers' *legitimate* rights and that their use of licensing is an attempt to gain *illegitimate* rights?
You clearly don't know how to construct a rational argument; you're just blindly repeating stuff that you've heard somewhere and think is vaguely relevant to the discussion without actually understanding it or the context, and then slapping a bit of faux-clever "what part of X" sarcasm on the front. It's embarrassing to you, it's embarrasing to all of us, frankly, and you should just run along now and leave all that complicated rational thinking stuff to the grown-ups, who know how to do it.
Massive FAIL icon for you, because everything you wrote was already anticipated and rebutted in my initial post before you even wrote it.
You don't know very far then.
Mac is a brand name. If it says you can only run it on a Mac computer with an Intel processor then you can only run it on a computer with the Mac brand on it (and Intel chips inside). and currently, those are only available from Apply.
Nike trainers are not any old trainers that you can put your feet into. In the same way, a Mac computer is not any old computer that you can load OS X on to.
"The sooner EULAs and click-wrap licensing are understood as a massive rights-grab and thoroughly struck out in the courts, the better."
You have it exactly backwards.
The creator of a copyrighted work has unlimited rights to do whatever they want (as long as they don't break the law) simply by creation of the work. You have NO rights to work that someone else created unless they give (or sell) them to you.
The EULA is the mechanism by which you are GIVEN rights-rights that you wouldn't have without the license agreement. It doesn't take anything away at all.
Now, it IS possible to buy all the rights to a software package. Apple has done so in the past, as have Microsoft and others. When you buy ALL rights, then you can do whatever you want, but that is not $29.95. I would guess that it would cost you at least $30 BILLION to buy Mac OS X from Apple (if they would even consider selling it at ANY price).
I understand where you're coming from, but it is a false analysis based on a misrepresentation of the law that is widely promulgated by those who wish to profit by extending rent-seeking practices into the realm of intellectual property rights. Let me explain:
>"The creator of a copyrighted work has unlimited rights to do whatever they want (as long as they don't break the law) simply by creation of the work. You have NO rights to work that someone else created unless they give (or sell) them to you."
Here is where your misunderstanding arises. The term "copyright" is a very literal one. The creator's *copy*right over their work actually only gives them unlimited rights over the *copying* of their work. It very specifically does *not* give them rights over the physical instantiation of those works - for recent precedent, consider the judgement in the Burrell Diana letters case, where it was ruled that he had the right of ownership of the physical originals, which the estate of Diana could *not* demand to have returned - or claim any other rights over whatsoever, despite representing the copyright-owner. The one thing they *could* do was prevent the copying (through publication) of those originals.
>"The EULA is the mechanism by which you are GIVEN rights-rights that you wouldn't have without the license agreement. It doesn't take anything away at all."
This is not actually the case in practice. When I purchase a book, I do not agree to any EULA, there is a simple contract of sale over an item that, once the contract is completed, becomes my chattel. I have exactly *all* the usual property rights I have over any of my other chattels, with the *sole* exception that the copyright holder has the right to prevent me copying it. If I do start copying it, the copyright holder has both civil and (since the '88 reforms iirc) criminal recourse against me. Hence my argument that copyright law is already sufficient.
The point, then, is that since the copyright restricts *only* whether I may or may not copy the IP embodied in the physical item, the EULA is therefore quite clearly *not* a grant but a restriction of rights that I would otherwise naturally possess.
In other words, I claim that it is a legal nonsense for the rights holder to suggest that they could, in theory, sell you a copy of a book without licensing conditions attached and that you would then be the proud possessor of a book that it was legitimate only for you to burn or use as toilet paper but not to read. This is the claim that they have to support for their theory of the legitimacy of EULAs and shrink-wrap/click-through licenses to be valid, and I claim it is palpably nonsensical.
If I buy a book, I can sell it again, and I can read it, and I don't agree to a licensing agreement at the time of purchase, and in fact the first-sale doctrine forbids the book publisher from attempting to claim that I do, even to the extent of making an explicit exception in the copyright law to make it clear that their claim is invalid. It is this *right* that the usage of EULAs as it is currently practiced is attempting to deny us by preventing it from ever being recognized in the virtual domain, but I argue that it should apply just as strongly here as in the real world.
"Here is where your misunderstanding arises. The term "copyright" is a very literal one. The creator's *copy*right over their work actually only gives them unlimited rights over the *copying* of their work."
You're 100% wrong. Please learn a little bit about a subject before you make yourself look like a fool.
A copyright gives the owner the right to copy, modify, distribute, sell, and so on to a work. Basically, it gives them almost unlimited rights.
Try this as a starting point:
Since you don't have any clue what copyrights cover, the rest of your argument is just plain wrong, as well.
Yes, if you buy OS X then, on a personal level, you can install it on a PC (just don't expect Apple to give you support). However, they are selling a service that is a EULA violation.
EULA violations in private aren't illegal, however, making a profit off them *is*.
YOU have the right to install your OS X where you want. Not Psystar. That's the difference, and they still don't get it.
The distinction between software purchasing and licensing exists only in the minds of lawyers and software vendors. Real people don't license software, they go to the store (or online) and buy it. And then having got their purchase home, they click "agree" or whatever that stupid little button is labeled in order to use the software they've already paid good money for. But they certainly don't read all that text above the button or have any intention of obeying any silly rules that might be contained therein.
"The distinction between software purchasing and licensing exists only in the minds of lawyers and software vendors. Real people don't license software, they go to the store (or online) and buy it. "
So by 'real people', you mean halfwits?
Most people understand at least in general terms that they don't own software. For example, if you own Windows 7 when you buy a retail box, you would be free to do anything you want with it - including distributing it free on the Internet, making 10 million copies and selling them for $5 each, or changing it from Windows to 'Tom's OS' and selling it. Most people realize that they can't do that - so they obviously recognize the distinction.
Apple, OTOH, can do any of those things to OS X because they own it. Because they own it, they have the right to do anything they want (within the law) while you have ZERO rights to use the software or do anything - until those rights are granted to you by the copyright owner (Apple). Apple wants to make money, so they agree to let you use the software with certain limitations for a fixed fee. You have a choice of not paying the fee (in which case you don't have any rights at all to use it) or paying the fee (in which case you have agreed to the terms). If you pay the fee but don't agree to the terms, you have acquired the software by fraud and do not have a valid license to use it.
The concepts are really very simple to anyone who approaches it with a concept that Apple created the software and can do whatever they want and that you have no rights until they're given to you. As long as you start with the attitude of entitlement that you're somehow entitled to take whatever you want regardless of what the owner wants, you're going to continue to be in violation of the law.
>"Most people understand at least in general terms that they don't own software. For example, if you own Windows 7 when you buy a retail box, you would be free to do anything you want with it - including distributing it free on the Internet, making 10 million copies and selling them for $5 each, or changing it from Windows to 'Tom's OS' and selling it."
Nice rhetorical trick there. Did you hope we wouldn't notice how you suddenly switched in the middle of the sentence from discussing whether we "own" the singular subject of "the retail box" to whether we "own" the generalised concept of "the software", thereby conflating two entirely different things? Bogus.
Most people, if they say that they "own" something they have been to a shop and bought, mean that they own the particular physical instance itself, not that they own the brand. When you buy a retail box you are own it and are free to do what you want with it. (The theoretical copies you might theoretically make are not the original thing for which you paid, so this argument does not oblige you to assume you own them also.) And the whole big argument is about the fact that manufacturers are attempting to use EULAs to prevent us from owning /even/ the retail box, at least as far as any ordinary definition of what you can do with your personal property goes.
Anyway, you know you're not suppose to make copies and/or sale W7 willy-nilly as well as rename it as you see fit. So you're calling the average consumer 'halfwits'. Your first paragraph is so confusing when compared to the second paragraph. MS has been [still is] trying to deter boot-legging its software for many years using several different guises and you come along and say 'we own W7' and we can do what we want as well as sale copies for a profit and then you say 'Apple owns OS X' -then you go veering off into space about rights and paying fees and terms. Both MS and Apple don't really care what you do with the OS as long as you don't try to make personal gains from it; like make copies, installing your own copy on several other machines, renaming, things like that.
I've read (or glanced) thru the paper EULA a long time ago when I bought my first computer (a boring read). But overall, it just says: 'Don't copy, steal, change anything or force it to do inappropriate stuff for we won't be held responsible if something breaks and we may sue you IF YOU DO!... And by the way, we might change the way it works at a future date so everything still stands when you agree to what we wrote, OK?'.
The compare option under each of the donations. Im guessing (and no I cant be assed to check this here) it will bring up a page comparing Apples 'charitable donation' offering on their webpage. Oh wait Psystar isnt a charity? My bad then :)
/and no the mention of Apple here was not made in the effort to poke fun at Apple before the flames start.
It uses another Unix derived kernel - not the Linux kernel. It is true that most Unix derivatives can run the same Posix standardised applications, particularly if available for compilation as source code, but technically Linux is the kernel, not the particular set of applications (i.e. the distribution) which tends to be installed along with the kernel.
>"It uses another Unix derived kernel - not the Linux kernel. "
Damn right, and in fact you hit on an important point there: it is based on BSD, and because BSD has a weak licence, that says anyone can do what they like, including making private restricted non-shareable versions to themselves, that is why the whole problem has arisen in the first place. If they had shipped a linux, they wouldn't remotely have a claim to stop us running it on any machines we wanted, because of the GPL being strict about sharing the source and permitting modification and redistribution where the BSD licence isn't.
This is why the GPL actually gives us more freedom than something like the BSDL that on the face of it seems more permissive; sometimes more permissive doesn't equate to an advantage for you, because sometimes more permissive just gives an extra advantage to those who already have an advantage over you anyway.
I go to the store and purchase [yes, PURCHASE] a CD with software on it. This purchase includes both the physical medium and a license to use the software.
I go to the store and purchase a book with a story in it. This purchase includes both the physical medium and a license to read the story.
Ah, I see the difference now.
"Any sensible person neither knows nor cares about EULA's. As far as I'm concerned I own what I've bought."
Yes, if you actually buy OS X, you can do whatever you want with it. But Apple wouldn't sell it for any amount less than tens of billions of dollars. Do you have enough money to buy it?
Sensible people care about the law and about others' rights. The fact that you don't care about either indicates either a very young juvenile or a pathological personality. Which one are you?
Wrong. Most people don't make a distinction between buying a book and buying an OS.
When I buy a book, I own the book and can do what I like with it as long as I don't break copyright law. I can read it on the bus, on the train, on the loo or burn it in the fireplace if it's no good.
Likewise, I would expect that when I buy an OS I can again do what I like with it as long as I don't break copyright law. But no, I also have to abide by the EULA, which by the way NO ONE EVER READS because they assume it is common sense. In this case Mac aren't just preventing me from copying the OS, they are dictating how I should use the OS. Which is like dictating how I should use a book.
No one is actually arguing against your point of owning the OS itself. No one buying an OS thinks: "yeah I now own the OS itself and can copy and distribute it as I please". No one thinks that when buying a book either. You own a copy of it with which you should be allowed to do what you want as long as you don't break the law in general by doing so.
"Which part of...
... "license" do you not understand? God help you if you should ever decide to rent an apartment or a car if you can't even understand this pretty basic distinction"
The "license" part. If I buy a piece of software I *AM NOT* renting it. Period. I do not agree to license agreements or the restrictions they place on me, period. Copyright restricts me from making copies and handing them out but no company will tell me how to use the software I have purchased. (I generally use free software just to avoid these types of problems.)
As for Psystar, I am certainly not sending them donations, and I would buy a Psystar shirt but not the one they have printed. I do salute their decision to become a Linux vendor though, and would consider buying a Psystar.
Apple is strictly in the wrong here, and you fanbois claims that they only sell upgrades is FALSE. Nextag.com: Snow Leopard Upgrade $29.25. Snow Leopard *FULL RETAIL* $78.98. I dare you to claim that the copy *labelled* full retail is still an upgrade. Psystar was not selling $29 copies of OSX, they were selling full copies. Apple simply out-lawyered Psystar. Psystar's argument is right, this is PRECISELY like a book seller telling you you can't read your book on the can, and any claim to the contrary (which I'm sure there'll be many more of) simply shows rampant Apple fanboi'ism and worship of all that is Jobs.
Who the hell cares about what Nextag.com writes up? They are HAWKERS, salesdrones, marketers - they have no legal implication in the sales process other than to convince you to buy something. When a used car salesman says "this car here was driven only by a little old lady to get to church every Sunday" - does that mean that it REALLY was not driven by a 19 year old who dragged raced Porches from stop lights? OF COURSE NOT. (and by the way, is he legally liable if he is wrong? Actually, very hard to prove unless the car itself is not as represented...)
The ONLY thing that matters is the exact fine print of the EULA from Apple - PERIOD. And has been pointed out ad infinitum, you don't own the copy you buy, you only own the right to deploy it on APPLE hardware...how ever any site may try to get you to buy it, them's the facts...
You really don't GET the concept of buying software do you? When you pay your pathetic £78, do you actually BUY all of the source code of OS X? Can you freely change it and examine it?
Ummm, no. You have purchased merely a compliation of the software, NOT the software itself. And that compliation is targeted to run (as all compilations are) on a given set of hardware. For OS X, that targeted hardware specified in the EULA is on a machine built, QAed, and supported by Apple Inc. Apple WARRANTS that software to be compatible with that hardware, and will support you in the use of OS X on that hardware should you have problems.
Now, Apple cannot physically stop you from trying to deploy that compilation on other hardware - but they CAN state the obvious - it was never compiled, linked, and QAed for any other machine, and so they do not support it and will therefore not agree to its use on said hardware. After all, they HAVE A REPUTATION TO MAINTAIN, which is a tangible asset on their books, and you have no legal right to damange their reputation (and asset) by running OS X on hardware they haven't QAed to work with it. If enough people ran OS X on non-Apple hardware, and had no Apple support, and had bad experiences, OS X could get a bad name as an OS - and Apple has EVERY LEGAL RIGHT to stop that from happening - they wrote it, they can say NO, DON'T DO THAT.
Now, can they enforce it? Not for personal use, nor do they really try. But they can certainly stop any organised entity from trying to promote such use that may damage their brand, as they have here. Somehow you totally MISS the picture of what support entails, and somehow you miss that a large part of that OS X retail price is FOR the support that Apple may have to provide to end-users - and that is support they cannot provide on non-Apple machines.
In summary, if someone creates something, THEY dictate the terms by which someone else may use it. It could be software, it could be a car (i.e., speed limiters, mandatory servicing at intervals, etc.), it could be a condom (ie., do NOT use with Vaseline, do not re-use, etc.). You don't like those terms, then don't buy it. But in a free-market economy, it is up to the SELLER to fix a contract with terms and a price, and the buyer to merely agree to it or not. The buyer can negotiate, but that doesn't mean the seller has to even listen, let alone agree...because, you see, the buyer is merely ponying up a pathetic £78, whilst the creator has invested millions...
Quite. Hence the term, as you've pointed out. 'copyright' and not 'usage right'.
It's by the EULA that manufacturers attempt to exert control over the 'usage' of the product.
In theory, if I buy a piece of software on disc I can do whatever I like to that disc, including running it on whatever devices I like, with the exception that I cannot reproduce it or make use of any of the other exclusive copyrights retained by the authors/publishers/etc.
In practice, the publishers now claim that I've not bought any physical thing really (nonsense, of course) - just bought the right to make use of it under the license they provide.
"So how does that fit in with a copyrighted retail DVD, which is licensed for home viewing, but not on oil rigs, coaches, prisons and schools?"
The rights they are dictating there are "performance rights" which come under an entirely seperate set of laws which have very little to do with "copyright" which is what we/you/they/us are discussing here.
If you "show" a DVD or "play" a CD (or motion/still pictures and/or music on any other medium/method of delivery) to viewers/listeners outside your home (or even inside your home under certain circumstances), it becomes a "public performance" of the content - nothing to do with copyright whatsoever. Please try a different analogy.
Performance rights are a part of copyright. Even I accept that, and I'm the guy writing all the long posts arguing that post-sale restrictions of use under EULAs are invalid.
However, like hell am I "performing" an OS when I install it on a machine of my choice. Nor is there a "performance" of a book going on on the back of my retinas. So it doesn't really alter the main argument one way or the other.
VMS, AIX, Solaris, the many IBM mainframe operating systems, HP-UX, Tru64 UNIX, Primos, Windows Office, Sage, Photoshop ....? I rather think all of these would be (and some have shown it in the courts) somewhat put out if someone uses it outside the conditions of sale, installs the operating system on other hardware (sometimes even not on the specific box for which it was sold). I expect even Redhat or SUSE may have something to say if you started assembling and selling boxes with a copy installed without their agreement (as opposed to a Linux and utilities you complle and assemble yourself). I note they have "free" versions and paid-for versions, with a different set of conditions, support, proprietary software ... Try abusing their paid-for server versions.
Of course the author/owner can and does restrict how you can re-sell, install, use it. Even with this rather misleading book analogy, try reprinting your Penguin copy of some story (still in copyright that is) in your own version and selling that, or serialising it in your own magazine and see how far you get; or just cut out the pages, put them in a new binding with your name on as publisher and then sell it. Is this not exactly why GNU and BSD have conditions to allow porting, adaptation etc. explicitly, to overcome this usual set of restrictions? Some "free" software even has specific conditions to stop its use commercially.
As for failure to read the small print, that is no excuse. If you agreed without reading it, that is your problem. You were told; you just refused to listen. Ever read the full law on theft, fraud, assault, driving laws? Try telling the court you are not guilty of theft because you never read the stupid law before you stole that piece of cheese from the shop.
By the way, OS X is derived from Darwin from BSD. It is nothing whatsoever to do with Linux, though both use some GNU applications at the shell level and, with any luck, both can be run in Posix compliant mode. It is arguable that, while OS X can lay some claim to be a UNIX implementation, Linux is not, being supposedly a complete rewrite from the bottom up, just as Minix was. However, what defines "UNIX"?
>"I expect even Redhat or SUSE may have something to say if you started assembling and selling boxes with a copy installed without their agreement (as opposed to a Linux and utilities you complle and assemble yourself)"
Uh, no, you really just don't get it. If you want to knock out millions of CDs containing an exact dump of the Fedora repository, the only thing RH will say (the only thing they can say in fact) is "Go for your life". The GPL is a wonderful thing, and when people say they're using it, they really mean it - with all that it implies. Which is indeed exactly the right to knock out as many verbatim copies the hell you like. (As long as you don't forget to ship or offer to ship the sources!) You really can do this, it's not a theoretical right, it's a very very real one.
(See elsewhere for lengthy detail on the distinction between restricting how you may or may not re-sell something and restricting how you may or may not use it when no such redistribution is involved.)
What we are discussing is whether an implied or express contract exists, and what is the terms of that contract. As every shipped version of OS X ships with the EULA attached, THAT is an expressed contract. Copywrite stipulates the barest minimum of protections, and copywrite is no longer applicable if another contract is expressly agreed to by both parties - and you have to agree to the EULA to use OS X. The EULA gives you a license to use the compiled version as I stipulated above in my previous post...only on the hardware it has been QAed on and supported on, because that is Apple's right to stipulate. NOTHING in US law (or any forgien law that I can think of) gives you the write to ignore a contract that you have agreed to, just because you have purchased other things on other contracts and you like that wording better. Your claim that you simply don't wish to observe the EULA is frankly meaningless in any logical context - except to say that personal users that ignore the EULA will probably never be prosecuted for violating the EULA of OS X, because it is not worth Apple's time. So at the very best, all you can claim is that you are so small and insignificant that you are not worth the effort of smiting, not that you are right...great claim that. Psystar wasn't...
N. B. - I pesonally have no issues with anyone that wants to build a hackintosh, I've considered it myself just so I could re-use my Koolance watercooled server case and still run OS X...but I still won't claim that I have the _right_ to do so...
"No, that is still not true. Copyright lets them dictate the terms by which someone else may COPY it, and NOTHING ELSE."
Once again, that is completely wrong. Please learn a little bit about copyrights.
Copyrights do, indeed, prevent unauthorized copying, but they also prevent unauthorized modification or distribution. In this case, the court ruled that changing the bootloader constituted unauthorized modification of the OS and was therefore a copyright violation.
Copying, modification and copying, copying by public performance; whatever. Ok, I was loose with terminology there and conflated it all into the general term "copying", but that really doesn't materially affect my argument.
The point is, yes, the copyright holder owns the thing, the creative work, and has the right to control its reproduction. I've granted that all along, from my first post. But if the copyright holder ever wants to be able to profit from their creative work, then at some point they have to sell it, and at that point the exhaustion doctrine comes into play.
See, I know perfectly well I only own the retail box. I know I can't reproduce it by the million, or give it away on the internet; I know I can't even perform an operatic version of the windows 7 OS on broadway without licensing it from MS; but that's not the point. Exhaustion has to come in somewhere, or it's a one-sided deal, a bust in the social contract. Once you've bought the goddam thing, it's yours, whether you want to look at it or spread marmalade on it and shove it up your ass, and nobody can tell you not to as long as you aren't doing it as a public performance or other form of distribution of a copyrighted work. But here's where we really start to narrow in on the point.
The exhaustion doctrine is well understood in the context of books. I can't reprint it, but the copy I bought is mine and I can read it on the crapper if I so choose. I can sell it, for chrissakes, without the copyright holder having the least right to a say-so in the matter; how can he pretend to have a say in what I do when I'm not even distributing it in any way whatsoever?
Well, he can't. Because as we've discussed ad nauseam, the right to restrict any form of republication or copying or distribution does not imply the right to restrict any of my other actions which do not consitute any kind of copying or republication or distribution.
If, therefore, a copyright holder wanted to limit your freedom to read a book on the crapper (or install an OS on a device of your own choice), they have to claim that there is an act of copying, modification or distribution taking place over which they have the right to assert control. If, having sold you a physical book, they then want to stop you from reading it on the crapper, they have to claim that to do so would somehow constitute copying it. They would have to claim that the act of holding up the book in between a lightsource and your eyes and angling it so that light fell off it into your retina constituted an act of copying, because you "created" a little reproduction image on your retina.
Well, that might seem pretty obviously like a transparent legal fiction, an entirely hypothetical act of copying posited solely for the purpose of asserting an otherwise illegitimate right. And I'm sorry, but I think this is the point at which I lose the ability to argue for a belief and it just becomes axiomatic to me: No fucking way am I "copying" a fucking book by the fact that there's a little image of it on my retina when I read it. Just no. That's stupid, and anyone who says it is stupid. (We may have to agree to differ on this fundamental point, in which case so be it; I must lack the expressive ability to lay plain how truly fundamental and obvious this basic truth is, because I cannot comprehend that anyone who had beheld it would not see it as obvious too.)
And yet this utterly specious transparent legal fiction is the sole and entire basis of the theory legitimising the use of EULAs. The sole one.
Because that is exactly the claim that the rights holders have made in the case of computer software. It was - in what I'm claiming was a massive miscarriage of logic and jurisprudence - accepted by the courts as an argument some time ago. The theory (or as I call it, "transparent legal fiction") states that when you load the program off the CD into your computer's memory, you are performing an act of copying, creating a reproduction in the computer's memory of the original creative work, which act of copying they claim jurisdiction over.
So, here's where we have it. My entire argument all along has been consistent in this: I accept their right to control copying and reproduction. I merely dispute whether what is happening here should qualify under that definition.
It's not just about the analogy to the image of a page of a book falling on your retina. The law is perfectly clear about this in every other context: a transient copy held in memory for the purposes of processing is not an act of reproduction or distribution - otherwise every single hop that every one of your IP packets took would be committing a breach of copyright in the course of forwarding your data. No, the law is perfectly clear about the non-subject-to-copyright status of transient data in memory in every other case, but in this one instance it seems to have a blind spot, and reverses its stance: the copy transiently created in memory for the purpose of processing to the effect of running the OS, that act of transient copying alone is given special status and deemed to be, unlike all the others, an act of reproduction.
This is illogical, inconsistent, irrational, and unjust. The decision was wrong, but entrenched interests sometimes hold sway over our courts and lead them to make these incorrect decisions, and that is what happened in this case. A blatant legal fiction has been manufactured, and a spurious theory of legitimacy founded on it, and the entire edifice of software licensing and EULA restrictions hinges on this one, single, strained-beyond-all-credulity hypothesis. I argue that it is bullshit, and transparent bullshit, and for *exactly* the same reason that you wouldn't accept it if someone told you their book copyright gave them power to dictate which direction you may or may not point your eyes in.
The courts should never have allowed this specious nonsense to stand for a second, they should have thrown it out of court, they should have had the attorneys who dared to propose this theory debarred, then beaten, then sterilised, and then chased outside the city limits. In a rainstorm. By an angry mob with spiked planks. So that no third rate low life ambulance chasing poor excuse for a cheap shyster dare ever open their mouth and pour forth such offensive filth and claptrap ever again. This hideous obscenity against logic and reason should have been strangled at birth.
I certainly don't consider myself bound by such a blatant fiction. And I consider any attempt to invoke it to be, prima facie, evidence of bad faith and malign and dishonest intent on the part of those invoking it.
In short, I know when I'm being robbed. And I'm not buying it.
> In summary, if someone creates something, THEY dictate the terms by which someone else may use it. It could be software, it could be a car (i.e., speed limiters, mandatory servicing at intervals, etc.), it could be a condom (ie., do NOT use with Vaseline, do not re-use, etc.).
No, they don't. Not without a contract. If I buy a book it can have a big sticker on it saying 'Not to be read on trains' but that has absolutely NO binding legal authority. If I buy a car with a speed governer on it I'm completely within my legal rights to remove it (assuming local laws don't forbid me from doing such a thing). If I buy condoms that are not to be used with vaseline, I can darn well smother them with the stuff if I want to. If a car manual states that the car MUST be serviced every ten thousand miles, good luck to Ford trying to compel me into a garage if I want to service it every eleven thousand miles instead.
Do not forget, also, that I do not have a contract with the manufacturer of these products. I have a contract of sale with the person or entity that sold me these things. If I buy a car from my local garage, or a pack of condoms from a supermarket, I have not signed any contract with the car maker or the condom manufacturer.
"Do not forget, also, that I do not have a contract with the manufacturer of these products."
YES you do - you have to agree to the EULA before you use the product, which IS a deftly written and all-encompassing contract with the creator of the software...which supercedes any and all other agreements including copywrite if it so chooses and you elect to use it.
"I have a contract of sale with the person or entity that sold me these things"
N.B. - this last bit varies if the middleman is actually a Value Added Reseller, in which case these terms may change substantially - for example someone might embed an application or OS into a much larger mechanism, and then the middleman VAR would then assume some responsibility for the support as part of the larger whole. But in the examples used here, the retailes are not VARs...and your contract is with the creator of the software.
... provide upgrades to non-Intel Macs?
Blue and White G3s and the G4s in a similar case can certainly be fitted with a PC motherboard.
Apple could have no arguement with that.
They could provide ready upgraded Macs, and a service upgrading them.
They may even be able to sell kits, though of course they would have no control over whether they ended up in a Mac or not, so might be blocked from doing that.
"Blue and White G3s and the G4s in a similar case can certainly be fitted with a PC motherboard.
Apple could have no arguement with that."
Maybe you should read Apple's complaint and the court decision. Apple would certainly have an argument with that.
At the very least, Psystar would specifically have to use their bootloader (or some bootloader other than the one in Mac OS X) in order to make it work. The court has specifically ruled that this is illegal.
Why do people who don't understand the law or concepts of copyright - and who can't even be bothered to read the court's decision on the matter - insist on posting inane nonsense?
Of course, this also assumes that Psystar could even do this. So far, Psystar has not demonstrated any technical ability at all and designing a new motherboard and power supply to fit into the Apple cases appears to be well beyond their capabilities, anyway.
The EULA only exists because of copyright!
An End User Licence Agreement is a licence to use their copyrighted work (the software)... If it weren't for that intellectual property right, anyone would be able to do anything with the software without a licence!
Under the same intellectual property right, there's nothing to stop a record label from including an EULA with Music CDs stating that you're only allowed to play the music in a Sony-branded CD player... as long as you see the terms of the licence before you buy the CD.
That's were the problem comes in for software EULAs... In common law jurisdictions, such an agreement is not legally binding unless both parties to the agreement derive "consideration", in which case the agreement is considered a "contract" (a legal agreement, enforceable in law).
But when you install the software and agree to the EULA, the software company does not derive consideration so no contract exists. The payment you made when you bought the software in a store is consideration in a separate and completed contract that you entered into with the store, so it's "past consideration" and in contract law past consideration is no consideration. Therefore, when buying software in this way, most EULAs are merely agreements binding in honour only.. not legally binding or enforceable.
Anyway, I can't wait until Microsoft get desperate and start playing the Apple game of trying to dictate what hardware you can use with their software. They could start a "Microsoft Certified Hardware" scheme and only certify the hardware of computer companies like HP and Dell if they agree to NEVER distribute systems with other operating systems, like Linux! And only certify peripheral devices if the vendor agrees to not distribute drivers for other platforms.
Then EVERYBODY would be crying foul, while Apple can get away with relative murder!
US Law - which is the law in question - requires that a contract be negotiable by BOTH parties. Any contract that is unfairly one-sided (99.9% of EULAs) is NOT valid in private, personal use - check your contract law again, RH. Notice that the court's decision was based on a COPYRIGHT violation (modification of the work prior to re-sale), not a EULA violation. Most large companies renegotiate the EULA when they sign their volume license agreements.
Also, despite what the media companies would have you believe, under US Law copyright does not apply within your own private domain. I am entitled, by law as written by Congress and then adjudicated by the US Supreme Court, to use anything I own in ANY way I see fit within my own personal domain (home, car, boat, computer, mobile phone, etc.). Right of first sale and other legal doctrines also severely limit what rights a copyright holder of any media (published text, video, audio or computer code) has over a privately held copy. Also under US Law, there is no concept of a limited license within my personal private domain for copyrighted works - that's why media companies invented the privately invalid EULA - they couldn't get their way with the Law, so they created restrictive contracts. Under US Law (including, but not limited to fair use) I have the right to make unlimited personal copies (for strictly personal use) of any content to which I have any license. Is this an explicit right - no, it is an implicit right because the copyright holder has virtually NO rights over its use in my private domain.
Yes, that means that if I listen to a song on the radio, I have acquired a LIFETIME personal license to privately use that content in any media and in any location in exchange for the use of my personal airwaves and the publicly owned radio waves (plus my time listening to the commercials as a bonus payment). However, I do NOT have the right to distribute copies or use them in any commercial enterprise without negotiating a contract (which could be the EULA or a modified version).
Yes, this also means that for private use, I can legally install as many copies of a licensed program (therefore effectively privately owned copy) that I wish within my private domain - despite the media company's EULAs and objections.
I am also completely within my private rights under the DMCA (as explained in the federal DMCA explanation documentation) to circumvent copy protection to ANY content to which I have legal ACCESS rights (i.e. owned media or licensed content - which are the same under private use).
Of course, as stated above, none of the private use rights apply to commercial entities or to distribution.
If you pay close attention and don't simply accept what the media companies spout, you'll find that ALL successful US prosecutions of personal media "piracy" have been about distribution, not acquisition. That's because, in the US, downloading an extra copy of a song, video, computer program or book to which one has at one time in his life acquired a personal license for (inadvertently or explicitly) is completely legal, moral and ethical. It is the media companies that are being immoral and unethical by trying to subvert the US constitution's balance between personal freedoms and the right of an inventor or artist to earn a living based on an individual invention or work for a LIMITED time in order to make a decent attempt at the pursuit of happiness. These rights were originally limited to the individual(s), not the corporation, and to a period of not more that 7 years.
should users accept an entirely illusory «distinction between software licensing and software purchasing» ? It's not difficult to see why software manufacturers try to foist such a distinction upon us, thereby greatly expanding their powers and rights vis-a-vis the hapless consumer, but why don't we consumers fight back against this unexampled abrogation of our own rights ?...
i.e., the middleman retailer is not responsible for the product sold, the creator is,
umm. not quite right in the UK.
When you buy a product from someone like PC World,if there is a problem with it they are responsible for sorting it out. They try to TELL you to deal with the manufacturer but it is them under consumer law who have to repair it or send it off for you. They just don't want the hassle and try to fob people off.
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