Psystar Halts Sales of Mac Cloning Tool, Will Peddle Linux PCs

Computerworld ^ | December 27, 2009 | Gregg Keizer

[Swordmaker]

Psystar became the owner when they bought their copies of OS X. Timothy Vernor, the winning plaintiff in Vernor v. Autodesk, wasn't an end user either. He never used any of those copies of AutoCAD. He was running an eBay business making money reselling software. First Sale was established with a company that was not an end user, a company that violated what could be considered to be a primitive EULA that tried to control the resale of a book.

Vernor was never an "end user" because he bought his copies of AutoCad at a garage sale, unopened, from the architecture firm who got them from Autodesk. He never was a party to the agreement. As such, his sales always were basically vendor sales—which also was a small problem because AutoCad sold only through licensed vendors. They were a licensed sales and support organization and Vernor was not licensed to sell their product nor was he certified to support it. That was why their Software License Agreement did not allow resale of their software. Their business model at the time these versions of Autocad were produced, 1999, was to sell software and support as a package. Still is, I think.

The architecture firm had agreed not to unbundle and sell any of the packages they got. They broke their license on selling to Vernor. . . however, Vernor was essentially an innocent party in this. Twice before AutoDesk had objected to Vernor reselling their products on eBay. Both times Vernor had explained the circumstances to eBay, eBay agreed with Vernor that he was not in violation with Autodesk's EULA... and re-instated his auctions. The next time Vernor got two of the architecture firm's copies, he decided to sue to head Autodesk's objections to eBay off at the pass... why it was worth the money to him is anybody's guess... and Vernor v. AutoDesk was initiated. Vernor still has these now ten year old copies of AutoCad, unsold. I wonder who is bankrolling him?

Interestingly, The Autodesk Software License Agreement is pretty straight forward. It retains title of the software for Autodesk, spells out the license, limits the usages, is fairly liberal in how you may use it, requires the destruction of the old versions of the software when upgrades are installed, and when removal from hardware when the hardware is sold. All pretty standard stuff as far as licenses are concerned. About the only thing non-standard is the prohibition of resale when the software is no longer being used... and no provision for Autodesk to redeem it or reclaim it. It just requires its destruction, which actually does meet the requirement for the owner's maintaining control of the property rights. How he reclaims control is his decision, and destruction of all copies in the customers possession is control. So the ruling that this somehow voids it as being a license is based on the logic that the owner of the software doesn't get it back at the end of its useful life and that Autodesk does not allow resale. But that is pretty standard on most vertical solution specialty software that includes support. Absurd.

[Swordmaker]

That’s the court ruling until one day it isn’t. The OSX/hardware monopoly is not engraved in stone. You may have that today until one day you don’t

Pie in the sky, by and by... you keep waiting. But don't hang your hat on that. Dennis. You'll keep picking it up off the ground. To mix metaphors, you're whistling past the graveyard... Psystar's graveyard.

[antiRepublicrat]

The courts have ruled that "fair use" applies only where a sale has occurred. . . and they have also ruled that a license is not a sale of the underlying software.

Read earlier. Just because they say it's a license doesn't make it a license. With almost all retail software you pay for it once and get to keep it indefinitely. According to Wise and Autodesk, that leans heavily towards making it a sale regardless of what the text says. This doesn't even count the states with anti-UCITA laws that define such commercial transactions as sales of a copy, not licenses (and invalidates the choice-of-venue clause of EULAs so they can't sue you in more corporate-friendly jurisdictions).

You are permitted to apply a fair use sale to the license

Not according to some licenses. True, Autodesk was just about a sale, but if you read the decision and Wise, which it heavily referenced, the most important part involves what is licensed and what is a sold copy, as that definition is what defines broader rights.

[Swordmaker]

That's interesting, and brings up a serious First Amendment issue.

I'm not sure it does. The judge told them "No Fire sales," in his injunctions which did include REBAL EFI and its components. Let's say you were selling an infringing book... giving away the book instead of selling it, after being found guilty of infringing, does not solve the problem. 1st Amendment prior restraint is clearly not permitted, but post judgement restraint and injunction is another thing entirely... and a contempt of court citation may be in order.

[Swordmaker]

Read earlier. Just because they say it's a license doesn't make it a license. With almost all retail software you pay for it once and get to keep it indefinitely. According to Wise and Autodesk, that leans heavily towards making it a sale regardless of what the text says. This doesn't even count the states with anti-UCITA laws that define such commercial transactions as sales of a copy, not licenses (and invalidates the choice-of-venue clause of EULAs so they can't sue you in more corporate-friendly jurisdictions).

Antirepublicrat... And Wise case is not based on software it was based on flawed language in a one time unique LICENSE that invalidated that single LICENSE into a SALE of content... and Autodesk—according to many legal scholars was improperly decided based on Wise, ignoring over a dozen contrary legal and pertinent decisions that WERE software licenses—is being appealed because because of judicial error on the grounds that Wise is inappropriate to software.

Even in the two UCITA states, Maryland and Virginia, where there have been only a handful of cases, the courts are upholding the licensing contracts cases, and it is likely UCITA is not going to stand well the court's tests of trial. The same applies the anti-UCITA law states., Iowa, North Carolina, West Virginia and, Vermont. States are required to give good faith and recognition to other states' laws. Breaking contract law is a high cliff to hurdle.

And Apple's licenses allow each licensee to sell their license to a subsequent buyer so long as the seller does not retain copies... ad infinitum. The judge in the Psystar case ruled Apple's licenses are indeed Licenses. They are NOT sales of software. They meet all the tests to be licenses and not sales. Period.

[antiRepublicrat]

and Autodesk—according to many legal scholars was improperly decided based on Wise, ignoring over a dozen contrary legal and pertinent decisions that WERE software licenses

Wise is perfectly appropriate. The Autodesk judge did consider conflicting precedent, and properly ruled according to the earlier one. Copyright is copyright. The differences in implementation of copyright to different items are in the law, which specifically overruled those precedents that conflicted with Wise.

States are required to give good faith and recognition to other states' laws. Breaking contract law is a high cliff to hurdle.

If Apple or Microsoft don't want to live by North Carolinas or Vermont's laws, then they are free to not do business in those states.

The judge in the Psystar case ruled Apple's licenses are indeed Licenses. They are NOT sales of software.

I attribute that to Psystar's extremely poor representation. Luckily, unlike Wise and Autodesk, that wasn't an appellate decision.

[Swordmaker]

Wise is perfectly appropriate. The Autodesk judge did consider conflicting precedent, and properly ruled according to the earlier one. Copyright is copyright. The differences in implementation of copyright to different items are in the law, which specifically overruled those precedents that conflicted with Wise.

No, it's not. Wise is inappropriate, that's why it is being appealed, and why many legal scholars are saying it should not have been used to make the decision. Wise was a unique case and unique cases make bad case law and bad precedents. That's why it was NOT used in dozens of other software cases previous to Vernor v. AutoDesk. In fact it is why the lawyers in those cases did NOT use it as case law in their arguments to the judges. Wise was NOT decided on copyright law but on the lack of a clause in the LICENSE agreement contract between the studio and Vanessa Redgrave that wound up invalidating the license and converted the transfer to Redgrave from a license to a sale contract for that single copy only.,.. and therefor the content on that copy was her property... and the studio lost control of its intellectual property as far as that copy was concerned. The Vernor judge decided to IGNORE the other precedents which were germane to the issue of digital rights in favor of a media more akin to not easily copied printed matter. This is the heart of the matter, that the printed, permanent copy, hard to duplicate copyright system laws were not meant to constrain the ephemeral, easy to duplicate,digital realm copies, that the computer has brought about that the cases the AutoDesk judge chose to ignore.

The other attorneys and judges recognized the irrelevance of the 1898 and Wise decisions in re digital cases and used over a dozen digital rights cases, while the Autodesk judge squished and squoze the Wise appellate decision totally unrelated to digital copyrights, and in fact, totally unrelated to copyrights at all because the sale was based on a legal contract error of the Studio's legal department's failure to include a single, normally included paragraph (it was even pointed out, in comparison to other VIP license agreements, that the Redgrave agreement contract jumps mid-sentence, just before the missing paragraph, and then continues, again, in mid sentence to a later portion of the agreement, highlighting that it was most likely a typographical error, but the court could not make a decision based on what was missing) which the appellate court found invalidated the license portion of the contract, which, had it been included, would have made clear the intent about the sale or license, to make his decision. The problem with Wise appeal hinged not on copyright law but on the contract law and the lack of specific language.

[antiRepublicrat]

Please cite and quote relevant portions if you have such great precedent counter to Wise.

This is the heart of the matter, that the printed, permanent copy, hard to duplicate copyright system laws were not meant to constrain the ephemeral, easy to duplicate,digital realm copies

I completely disagree. We don't lose our rights just because something is in a different format. If tying our rights to older technologies were appropriate, we'd only be allowed to have muskets under the Second Amendment.

[Swordmaker]

Please cite and quote relevant portions if you have such great precedent counter to Wise.

The point is what Wise was decided on... not on the other cases. Wise was not decided on any copyright issues at all. Wise was purely decided on whether it was a SALE CONTRACT or a LICENSE CONTRACT. Once the appeals court decided it was a SALE CONTRACT, solely because of the lack of retention to the studio of the ownership of the content, copyright did not enter into the equation. The appeals court even stated that had the contract included the language explicating that it was indeed a license, then the decision would have gone the other way. The judge in Vernor v. Autodesk hung his hat on the Wise SALE definitions, even though the Autodesk explicitly DID retain title of the content to the publisher in their very complete license. Had Vernor been a user, the decision might have been different as well. The Vernor judge said he elected to use Wise because it was an earlier case... which is specious. He then could have used lots of earlier copyright cases dealing with print media. As I said, he squished and squoze Wise to fit... something that didn't fit. The MAI cases and others that were later than Wise were much more apt, were decided even with the knowledge (despite awareness of Wise), while he erroneously chose to ignore MAI and others.

I completely disagree. We don't lose our rights just because something is in a different format. If tying our rights to older technologies were appropriate, we'd only be allowed to have muskets under the Second Amendment.

That is the point... The technology of print is not the technology of magnetic media... or the technology of any digital media. We have to find a way to protect the rights of both the creators and the rights of the consumers in light of the new out of the old. So far the licensing model has worked well. . . the sale model with total ownership of all aspects of the product including content does not work at all. Most people are not constrained by the limits of the license... but the geek community that likes to break into the nuts and bolts of the software content, changing things as they go, and do what they want with it, as if they DO OWN it, want it their way, do feel constrained... but they are a vocal minority. Most people only want to USE the software as it was intended by the publisher to be used.

[publiusF27]

You pay for OSX you should be able to do what you please with it.

Cool! I want to sell copies of mine. No, wait, I'm feeling generous today. I'm just going to give them away for free!

[antiRepublicrat]

The MAI cases and others that were later than Wise were much more apt, were decided even with the knowledge (despite awareness of Wise), while he erroneously chose to ignore MAI and others.

The judge gave valid reasons to ignore MAI (itself largely criticized) and Wall. Wise was also about what constitutes being the owner of a copy, which is central to this case. I gave a quote from it, and it is very important. What is in the language of the EULA is irrelevant if the circumstances look like a sale. The law is above the contract, a contract cannot state what is contrary to law.

the sale model with total ownership of all aspects of the product including content does not work at all.

Why not? As you know, ownership of a copy under copyright does NOT give the new owner "total ownership of all aspects of the product."

The Vernor judge said he elected to use Wise because it was an earlier case... which is specious.

That is how our system works. Until it's changed by the higher court or the legislature, the older precedent is binding. In this case, not only was Wise older, but Congress had invalidated parts of the others. I believe you mentioned one, loading a program into RAM, which MAI had found to be infringement.

That is the point... The technology of print is not the technology of magnetic media... or the technology of any digital media. We have to find a way to protect the rights of both the creators and the rights of the consumers in light of the new out of the old.

The constitutional concept of copyright doesn't care about the technology. With EULAs we have not found a way to protect both. The producers have found a way to shift the balance of copyright far to their advantage. If I had a right under copyright, but lost it with a EULA, then they have shifted the balance, protecting their rights (actually, grabbing new ones) and destroying ours.

Most people only want to USE the software as it was intended by the publisher to be used.

So a right goes away if it is only exercised by the few? Are you ready to expand this concept through all of our rights?

[antiRepublicrat]

Let's say you were selling an infringing book... giving away the book instead of selling it, after being found guilty of infringing, does not solve the problem.

This is different. They are not distributing Apple's copyrighted works. On this subject there is one trial court precedent against me, the DeCSS case, but luckily no appellate court. Goldstein decided not to appeal for strategic reasons, mainly he was a hacker so judges were likely to find against him. Remember though that this was the same judge who thought he could tell somebody he couldn't link someplace from his web site.

However, that case did bring up some interesting questions. According to the judge, this student's yearbook entry is illegal. Yes, it's a real yearbook entry for a high school student who was interested in the case and its threat to freedom:

There are many more examples of how the idea that you can restrict freedom of speech in this way is absurd.

[dennisw]

You just might be one of the mind slaves of the Jesse Jobs gang. One of the camp followers. You know what I meant. 99.9999% of the items I have ever bought are mine to use as I please. Only that joker Jobs get away with playing petty tyrant with his software. That I cannot buy OSX and install that one copy where and when I please. I can do that with any Windows OS

But the Apple slaves think it’s normal to restrict software the way the Cuppertino Gangstas do. And you pay good money to be abused! Just like people who visit female dominatrices. You have no need for that the way Stephie Jobs treats ya’ll

[publiusF27]

And you might be the angry lesbian Public Relations flack working at Psystar, but neither would change the fact that your argument is ridiculous. Full ownership rights mean you can buy and sell at will, including selling or giving away copies. If you think that is the way to go with software, you’re nutz.

[Swordmaker]

I can do that with any Windows OS

Then you have not read the Windows OS license terms, have you? Try installing an upgrade version on a new system without an existing Windows version... or activating a second install from the same install disk.

[antiRepublicrat]

You know what I meant. 99.9999% of the items I have ever bought are mine to use as I please. Only that joker Jobs get away with playing petty tyrant with his software.

You haven't read many EULAs, have you? Microsoft tries to restrict you in ways that Apple doesn't. The only way to be free from attempted onerous restrictions as a user is to limit yourself to free software.

[dennisw]

You haven't read many EULAs, have you? Microsoft tries to restrict you in ways that Apple doesn't. The only way to be free from attempted onerous restrictions as a user is to limit yourself to free software.

I buy a Microsoft OS full version I can install it any damn machine I want. 
You cannot say that about the Apple OS which can only be used on an Apple computer
If I build my own Apple clone I cannot legally install OSX on it

With MS I can install my full version of Vista or Windows 7 on  one computer
That computer dies for some reason....
Then I can install it on another even an Apple computer

It's obvious to me that Apple is more restrictive with its OSX

[dennisw]

I pay $150 for a full version of Windows 7 I can put it on any one computer I want to. Apple does not allow this with OSX. It’s obvious to me who is playing fair and square

Don’t join the Jesse Jobs gang. Joining the Crips or Bloods is a much safer bet

[antiRepublicrat]

I buy a Microsoft OS full version I can install it any damn machine I want.

Whether you feel restricted depends on whether you want to do what is restricted. For example, the 7 Home EULA for retail, which is three times as long as the one for OS X, restricts connections to your computer and requires activation. Plus your freedom of speech is restricted if you want to publish any benchmarks relating to the .NET framework. OS X has none of these restrictions.

Besides, get an OEM EULA and you are attached to that hardware just as with OS X.

[Swordmaker]

I buy a Microsoft OS full version I can install it any damn machine I want.  You cannot say that about the Apple OS which can only be used on an Apple computer If I build my own Apple clone I cannot legally install OSX on it

All true. That is what the licenses say. Both legal.

It's obvious to me that Apple is more restrictive with its OSX

So what? That is their choice about how they want to make their property available for limited use. It's not your choice. You don't own the distribution rights, they do. You're desires are not in control, their's are.