Actually, you have a point there... but that is in violation of the DMCA... which Congress DOES have the right to make illegal all on its own... and did. They made it illegal to sell a device that allows one to avoid the technological steps that have been made to prevent copyright infringement. It might be argued successfully that the Rebel EFI is a legitimate product that does not infringe copyrights because it only furthers the illegal breaking of a contractual relationship... which Psystar has been ordered not to do, which would probably bring them to the courts attention in a contempt proceeding, But that's their problem. Not ours.
But the doctrine of First Sale says that once Apple sells me a copy, Apple loses control of that copy. They have no power to tell me what I can and cannot do with that copy, as a publisher can't tell me what to do with the book. The expanse and limits of their powers are already defined -- in copyright law.
Anti, You are misapprehending something... APPLE NEVER SELLS you a copy! They are quite upfront and explicit about it. They spell it out in plain English in the SLA. You have NOT bought the software on the disk.
This is the crux of the matter! Yes! There is a DVD disk in the box with a copy of OS X in the box... but what is on it is NOT SOLD TO YOU! Apple retains title to the content on that disk. YOU do not own it. LEGALLY, under the law, you do not have ANY RIGHTS AT ALL TO WHAT IS ON THAT DISK EXCEPT WHAT PRIVILEGES APPLE SAYS YOU HAVE ON THE AGREEMENT IN THE BOX WITH IT! Apple is merely providing that disk as a convenient way for you to gain access to their property to further THEIR ends, not yours, which is to allow you to have access to their property under limited circumstances which you will agree to before you install the software on your computers as a necessary step in that installation. Once you have made that agreement, you are bound by it... and the courts will, as they have done before, side with the publisher.
For the sake of discussion, let us say that instead of buying OS X in a box with a disk, you go to the store and you buy an OS X license on a piece of paper. All you get is the SLA. You pay your $129 and you must go home and sit down at your Mac computer and connect to Apple over the Internet and enter a code you find on your SLA which allows you to download your new OS X. Bang. Your computer now works 10 times better than it did 10 minutes ago. How can you implement your "Doctrine of First Sale" now? You have not bought a physical copy of the software. All you bought was a license.
The courts have ruled numerous times on this. So long as the license is properly written, software is more akin to a long-term, never-ending lease, than it is to a sale. This is especially true where the software requires support of some kind such as in a vertical solution office environment where the software will be improved and modified over the life of the "term." There is also usually a requirement that when the "term" of the software license agreement ends, there must be some means of "returning" control of the "product" to the owner. Usually, this handled by requiring the destruction of all copies in the control of the licensee.
A good example (or perhaps a poor example of this) is quickbooks, where you both "buy" and "lease" the software. Quickbooks, and in fact most accounting software, has created a hybrid business model that requires that the customer both continually repurchase the software on a repeating schedule and relicense it every year. Quickbooks, if you do your own payroll requires that you subscribe to a tax-table service or that you contract with them to do your payroll, each of which requires a subscription fee. One of the dirty secrets of accounting software is that little changes in accounting over centuries... and ergo, there can be little reason to change your accounting software. So why buy a new accounting software package if little has changed? That is not a formula for repeat sales for Quickbooks or any accounting software company. However, if they sell you tax tables, they've got you. All they have to do is change the tax table format every couple of years and Voilá... you have to buy the latest version to be compliant with the latest tax tables... or you can't pay your employee's any more. What do you know! Instant cash flow into Intuit! So, you both buy and lease your software! Neat trick, huh?
Developers are free to give away their own rights, such as open source freely allows copying. That is the true license, as a license is an allowance to do something you would otherwise not be allowed to do under law (in this case under copyright law, copy and redistribute).
Actually a license is a permit to break the law. And a license is the way a copyright holder can distribute a easily copied intellectual property while still retaining ownership... but it requires trust. Trust that the licensed person will not ignore the license. Trust that the laws will be obeyed. Trust that others will not be tempted to accept obviously infringed copies. Trust that you will use it as it is intended to be used. Trust in the honesty of other people.
Apple is SELLING you the right to use THEIR software under certain restrictions... one of which is that you may not give it away or sell it to another party and still retain a copy, or to install it on a non-Apple computer. It is that permission to use the software that they are selling to you. There is no difference here. You have NO RIGHT TO COPY THEIR SOFTWARE until they have provided you access to it either by licensing you to have access by gift or by sale of the license. It matters not how you got that license. Apple NEVER relinquishes control of their rights. YOU may choose to ignore those rights but the COURT will side with Apple legally. Apple may magnanimously allow you to use their property but you have no right to force them to let you use it as you see fit.
Yeah, that whole "contractual relationship" thing. I have problems with the validity of unsigned, un-negotiated adhesion contracts, especially ones that exceed the legal basis for them. Remember that without the grant of copyright they couldn't prevent anyone from widely redistributing their works without any restriction.
Another problem here and in other places is that the DMCA isn't being used to prevent actual piracy, which is what it was meant for, but to protect chosen business models. Copyright should not be a club to protect business models. Using the DMCA to protect business models has already been shot down a few times.
There is a DVD disk in the box with a copy of OS X in the box... but what is on it is NOT SOLD TO YOU! Apple retains title to the content on that disk.
That's the same thing that happens with a book. You retain the copy and all of the rights copyright gives you to that copy, and the publisher retains the copyright on the work. Yet books aren't licensed, they're protected by copyright.
YOU do not own it. LEGALLY, under the law, you do not have ANY RIGHTS AT ALL
Copyright gives me rights that Apple does not have the authority to take away under any contract. I can back it up, I can resell it, etc., and Apple has no right to say I can't. Imagine you bought some property that already had an easement for a walking path -- you can't tell people to stop walking on it. The law has defined the limits of your power, and you cannot extend your power beyond those limits through legal artifices. You can't post a "License to enter" to restrict the right the people have to that path.
Apple is merely providing that disk as a convenient way for you to gain access to their property to further THEIR ends, not yours
Their copyrights are allowed to exist in order to "promote the Progress of Science and useful Arts," not their ends. Allowing their financial interests to exist is only a means to an end. Copyright is supposed to be a balance.
Once you have made that agreement, you are bound by it... and the courts will, as they have done before, side with the publisher.
The courts have also not sided with the publishers. Precedent is uneven right now.
How can you implement your "Doctrine of First Sale" now? You have not bought a physical copy of the software. All you bought was a license.
I can resell the system with the software on it. I can revert to the older version and sell that file to someone else to install. IMHO, anything I have to do in order to make that happen despite any technological measures taken by Apple should be legal. Even the DMCA says about circumvention, "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." That is the most ignored clause in the law.
This is the old copy/license issue where content producers want it both ways. If I bought a copy I have various rights under copyright and the UCC, but if it gets stolen out of my car or my kids destroy it, then I'm out that copy. I have to buy another. But if I only bought a license, then supposedly I lose a bunch of my rights. However, the content producer owes me new free copies for my lifetime as my old ones get broken, lost or stolen, because I bought a license to have a copy. Of course they don't want to live up to that, so they then say I bought my copy and I'm out of luck. But if I bought a copy I keep my rights, and we're back to the beginning.
Trust that the licensed person will not ignore the license. Trust that the laws will be obeyed. Trust that others will not be tempted to accept obviously infringed copies. Trust that you will use it as it is intended to be used. Trust in the honesty of other people.
Trust that the author isn't exceeding his authority under copyright. Trust that various provisions don't run contrary to law and are thus unenforceable.
Apple NEVER relinquishes control of their rights.
An author never relinquishes control of his rights in a straightforward sale of a copy either. The extent and limits of the rights a user has when buying a copy, and the extent and limits of the rights retained by an author selling a copy, are well-established.