Posted on 11/04/2009 7:32:27 AM PST by American_Centurion
My daughter a HS Junior is doing really well in school. I am planning to buy her a new laptop for school. She currently has a Dell 13" XPS that has been ok, but the battery has been replaced twice, the CD/DVD will currently only play CDs and it is getting slower to start up.
So I start looking and I know she wants a Mac because they are cool, I however am not a Mac fan. Not that there is anything wrong with Mac, I have a slowly dying PowerMac G5 Dual that has a nice monitor I use for Aperture, but it is on its last legs. I also look for Windows 7 PCs, I use Lenovo Thinkpads for work and know they are rock solid, sturdy, and long lasting. My old T40 is 5 years old and still runs like it did when I first got it. I now work on a T400 and it is a great machine.
Here is what I found:
You suggested that they by "a" copy of OS X and install it on both his G5 and her PC laptop. Using it for more than one installation is not allowed. That is standard throughout the industry and has been upheld multiple times in court. Buying one copy and installing it on multiple computers is illegal. That's piracy. In addition, on all copies of OS X that are sold, the license that is attached to that copy is an UPGRADE license only.
So what if cloning is going on in Germany. Their laws are somewhat different and that will be addressed in the German courts as it is currently in the US courts.
I am not "spouting" the Apple company line. I am stating the law as I, and a lot of other people, understand it.
However, it is a fact that companies can violate antitrust and other laws designed to further competition without having to be as big as Microsoft or without being a monopoly.
That has been ruled on... and Apple cannot be held to be a monopoly on their own products. Judge Alsup tossed those anti-trust allegations out of court. Res Judicata... the thing has been judged.
that's' why I told him to junk the old Mac.
I cite Germany because there is a grounds for ignoring Apple's license in Germany, even though German laws are similar to ours. There may other grounds under US law, and under the 50 state laws to which Apple is subject. A person used to be able to contract to keep other races out of their neighborhood; courts refused to enforce those provisions. Courts may well decide not to enforce Apple's desires on licensing as well.
As you would know were you an antitrust attorney, the state of the market is constantly shifting, and a decision that involves the market in 2003 may well be very different from one that involves the market in 2009. Not only that, but the theories underlying antitrust keep shifting. Under the Reagan DOJ, and continuing with both Bush's, the "economic" theory of antitrust held sway for the most part. Under Clinton and now Obama, any large entity that uses its power is automatically suspect. I don't agree with that theory, but it may mean that a lot more companies fall under the purview of the DOJ. Apple is clearly not a monopoly in the market for personal computers. But the relevant market may be defined as something different in future litigation.
The point is, only an Apple corporate lawyers and their sycophants would consider the issue open and shut. I do not, and I will use their legally purchased software on my PC unless and until there is more clarity on the issue.
No Apple hardware or Software? How is that a Mac?
I'll have a ham sandwich. Hold the ham, hold the mayo, hold the lettuce, hold the mustard, no bread.
Show me where you have "purchased" software and not "purchased" a license. You can't. You do not own the software. You own a license to USE the software. That license has limits on how you are permitted to use that software. If you owned the software, you could, with impunity, make copies and sell them to anyone. I don't suggest you try that.
By the way, Psystar has admitted in recent motions that they were infringing the copyrights on OS X Leopard and have even told Judge Alsup that they are willing to accept a "nominal" fine for doing so. They say they are willing to admit this now because neither they nor Apple are currently selling Leopard (which is not true. Leopard is still available for older Macs.) Talk about cheek. They've been arguing for almost two years that they are not infringing, but once they stop—for this particular product—they say, "Oh, all right, we were infringing. Give us a slap on the hand and end this case." They also maintain that their admission of infringing OS X Leopard does not mean that they are infringing OS X Snow Leopard... while doing exactly the same thing they were doing before. Insanity.
My sister has one. Very pleased with it. Until she came over and saw my Mac Mini hooked up to the 22" two year old monitor I used for my Sony PC. Its not just that MacBooks are higher than PC notebooks, they are higher than just buying the guts (a Mac Mini) and hooking it up to whatever you have around. Was plug and play for me. Didn't have to install keyboard, mouse or monitor software, not even my DSL software, to go from the PC to a Mac.
Retired neighbors are looking at notebooks for their first computer. Guess everyone told them that is what they had to have. Trying to tell them paying a premium (usually) and straining their eyes isn't worth sitting on the couch with their computer.
You persist in arguing that a license term that may be unenforceable must be treated as enforceable. That is simply not the case, as Autocad and many other companies have found. You will never disagree with Apple that it can say anything it wants in a license. I will never agree with you that Apple can enforce those terms. What you can not show me is any legal authority that prevents me from using Apple’s OS on my PC. You can’t. You can repeat Apple’s legal arguments, sure. But that would make you a PR flack, or spokesman, not a thinking FReeper.
By the way, my arguments have nothing to do with Psyster. If Psyster wins its case (which I highly doubt), then consumers would likely be covered by the holding, but the converse is not true. If Psyster is not allowed to make Apple clone computers and install the Apple software on them, it does not mean that consumers cannot buy Apple software and install it on their own PCs. Consumers are not trying to make money using Apple’s IP, they are just buying Apple’s software and then using it on a computer on which it works.
BS, and even stronger BS, Defiant, to assume things about my thinking processes. I have come to my conclusion about this not from Apple's legal position, but because of years in business, courses in business and contract law, and personal and second hand experience. A good friend of mine wrote a program back in the late '70s that became a standard on Apple computers in education. Tens of thousands of copies were installed and it was used in almost every school district in the US. My friend worked on developing that program for over a year. He sold exactly SIX copies of his program. All the rest of those installations were pirated in violation of his SLA because people like you think the license limitation clauses are unenforceable because YOU want to use them in contravention of the wishes of the actual owner of the software. My friend never wrote another piece of software because the pirates STOLE his work and did not compensate him.
I have had intellectual property misappropriated in a similar way with people republishing my copyrighted work without my permission and even stripping my copyright and name from the story because, they claim, it's "fair use" and they don't need to abide by copyright law. "Fair Use" to remove my name as author and place someone else's name on MY story? BS!
When I was a performing musician many years ago, I paid the license fee for every piece I performed... because I expected other musicians to do the same for me. That's the Golden Rule. You, however, advocate ignoring the wishes of the OWNER of the software and claim, against evidence, that your wishes should trump those constitutionally established copyright rights.
If you rented a car from a rental agency, does that rental license agreement allow you to take it down to Sam's quicky Auto Paint and paint it a different color? Does it allow you to take it out of the area it may be limited to? Can you sell it to someone else? Can you let another driver drive it? No... because the contract you agreed to said you could not. An SLA is a contract, no more, no less.
if you leased an apartment with a long-term lease, can you sub-let that apartment to another tenant if the lease agreement says you can't, essentially installing another "hardware" unit in that apartment rather than you as the original contracted "hardware" unit on the agreement? Nope. If you do that, the owner of the apartment has the right to remove from you the rights to use that apartment.
You may be relying on the rule of First Sale... but the courts have ruled that only applies to an actual sale where all rights to a thing are transferred, not a sale of a license to use someone else's software property. The Autocad case failed because the license did several things wrong. One, it did not have a clause that specifically provided for how Autocad would regain control of the software when the license ended. Two, because they were not clear enough that it WAS a license with a limited usability. Three, the seller on eBay NEVER agreed to the SLA because he never opened the packages or ran the software... he just resold something he bought unopened at a garage sale. Since he was never a licensee, the license agreement could not apply. The courts ruled that a license violation had indeed occurred but it was committed by the original purchaser of the Autocad software who sold the unused portions of their bundles in violation of their limited license... not the plaintiff in the case at hand.
Apple specifically allows a licensee a one time transfer of the software to a new licensee, but any existing back-up copies and the working copy on the computer must be destroyed. That new licensee then also gains the same one time transfer right along with the restrictions because they also must agree to the license before they are allowed to run the software. This meets the courts tests for a license which invalidates the First Sale rule. The courts have ruled that requiring the destruction of the transfered copies, including the operating copy, still in the possession of the transferor, meets the requirement that the copyright owner regain possession of the software at the end of any one licensee's license tenure.
As of this time, because it has not been adjudicated, anything in a contract you agree to IS enforceable. You just cannot ignore a law or contract on your whim. Until a judge, somewhere with jurisdiction, declares that it is unenforceable, then you must abide by the contract you agreed to. So far, every one of these types of SLAs has been upheld, contrary to popular belief. IF you think something in the SLA is unenforceable, then sue for an injunction against the corporate person exercising the consequences of your violating that provision... but until then you are wrong to unilaterally violate the contract and can be sued for specific performance.
The good news for you is that Apple doesn't much care what you do privately... but if you try to SELL your Hackintosh, you might find a totally different attitude. The German case hinges on a consumer regulation that states that the license must be available for reading before purchase. Very few software packages have the entire multipage SLA available on the box. Do you know of any? This criteria can be met merely by having the license available at the place of purchase or on the internet sales site. However, the German company is getting around that little problem by buying OS X from an out of Germany source that doesn't have to have the license available. Apple is contesting that approach. Who will win on that one is anyone's guess.
This is the crux of the difference in our opinion on this legal subject. What you are saying here is just flat wrong. The contract is enforceable only in the sense that the party asserting it has been breached is free to file a suit and allege that there has been a breach, AND that the term is not void or otherwise unenforceable. But its enforceablility is not estabilished until much later in the process, and it is not until then that your position would be validated.
It is really beyond me why you can't just agree to disagree, and continue to post full length legal briefs on this issue. I could post Reply Briefs, and then I could hear your "sur-reply", but really, it is a complete and utter waste of time.
Anything in the license agreement is neither enforceable or void until a judge declares it so. To gain enforcement of a provision, one must first file a legal action. Then, a defendant will have the opportunity to present a defense. Then a judge or jury will decide the legal and factual issues. The judgment that follows will determine whether the words of a license are "enforceable" or not. "Enforceable" simply means that a court will issue an order or grant a money judgment based on those words. Until the time that a court rules that those words can be enforced in the way that Apple says they should be, they are merely a basis for a lawsuit that may or may not result in a judgment. Parties who differ in their interpretation of the legal rights and ramifications of those words are free to, and often do, act in accord with their position until a court rules against them.
Of course, when you do act on your beliefs, you takes your chances. You might lose, and owe someone some money. Similarly, Apple might lose and owe consumers some money. Ever wonder why they don't pursue consumers who install OSX on their PCs?????
Could it possible be because YOU have been advocating that other Freepers take on the risks of violating the contracts they have agreed to? I think it might be that. Yes, now that I examine my motives, I know it is.
LOL. You are such an altruist. Whatever would we po’ frippers do without you to protect us from risk! Even non-existent ones.
Spinning beachball.some other thoughts:
Have you installed additional memory modules ?
They sometimes need to placed in a specific sequence.
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