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soggy_cheerio
05:21 AM

In reply to Psystar Is Royally Screwed
It absolutely boggles my mind that one could adamantly support both Net Neutrality and the DMCA.

Someone explain this to me.

Why does Apple get to decide how you use their product, while the telecommunications providers get everyone up in their business? What's preventing internet providers from '"licensing" the use of their network, say preventing bittorrent traffic. If you don't like it, go fuck yourself and find another provider. How is that any different from the group of people that say, "If you want to use OS X, buy a Mac."? Why does Apple get a pass?

Apple apologists, what say ye? #apple
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PotteryBarnClearanceSale
12:31 AM

In reply to Psystar Is Royally Screwed
I hate Psystar. Not for breaking the law, but because they know the hardware they sell will fail the user in the long term. Mac OS upgrades will cause the users computer to become unusable eventually and they don't care.

They sell Mac Clones that work now. And from there it's a fight to keep it working. Waste of money.
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Edited by PotteryBarnClearanceSale at 11/15/09 12:40 AM

dolo54 blows minds and blows engines!
11/14/09

In reply to Psystar Is Royally Screwed
This article offers a version of their side of the argument: [www.miaminewtimes.com]

Hey if you don't like a law, change it. That's what they are attempting to do. I think everything you buy should be yours to hack and if you want to pay somebody to hack it for you, that's your right too. This is not law, just my personal moral judgment on the issue. You could say I'm wrong, but that's just, like, your opinion, man. #apple
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Louis Wang
11/14/09

@dolo54 blows minds and blows engines!: That's already the case. What Psystar is trying to change is the ability to hack someone else's property and resell it.

Imagine buying Windows for $49 (OEM), unlocking Ultimate, and reselling for $69... that would be legal if Psystar had it's way. #apple
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Kaiser-Machead
11/14/09

In reply to Psystar Is Royally Screwed
I don't quite understand the righteous outrage over this issue. It's pretty simple. If you want a hackintosh, make one yourself. If you want to sell hackintosh computers, ask Apple to first grant permission to resell their product. Their answer will probably always be no, but those are the breaks. #apple
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Kaiser-Machead
11/14/09

In reply to Psystar Is Royally Screwed
This is what happens when you treat your business like an experiment than one out to simply turn a profit. They could've sold perfectly good hackintoshable machines without stuffing them with a pirated hack copy of OS X. #apple
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myxylplyx
11/14/09

@Kaiser-Machead: What makes you think they used pirated software? #apple
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Nathan Obbards
11/14/09

@myxylplyx: ''As stated, Psystar made an unauthorized copy of Mac OS X from a Mac mini that was placed onto an "imaging station" and then used a "master copy" to make many more unauthorized copies that were installed on individual Psystar computers.''

Excerpt from court documents from the case from the website. It's in English and everything. #apple
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Kaiser-Machead
11/14/09

@myxylplyx: The copy used to actually install OS X on the Psystar machines are not from the retail discs. Whether they got this hacked version as an .iso through torrents or made it themselves doesn't matter; it's a pirated copy. #apple
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Louis Wang
11/14/09

@myxylplyx: The article I read clearly showed it.

They created a single image on a Mac mini then mass copied that image onto multiple PCs == pirated software. #apple
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Ultraorange
11/14/09

@Kaiser-Machead: it wasn't pirated #apple
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Kaiser-Machead
11/14/09

@Ultraorange: Are you sure? I suggest reading the article again. #apple
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valkilmerisawful
11/14/09

In reply to Psystar Is Royally Screwed
@OMG Ponies!: I'm waiting for the theee most good response...... Don't hold out on us brother. #apple
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The Lab
11/14/09

In reply to Psystar Is Royally Screwed
It seems like this case will settle the issue that has often come up in the comment section about the legality of making hackintoshes. Some have argued (with some merit) that a EULA is an unfair and contestable legal document. However it appears, via EULA or not, hackintoshing is likely to be viewed as in illegal act. I wonder if there is a legal distinction between hackintoshes for personal use or those created to be sold? #apple
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ester
11/14/09

@The Lab: While it could influence decisions in the legality of making hackintoshes, really this particular case is about whether Psystar can legally make hackintoshes. In the linked story its noted that Psystar was using an illegal copy in order to simplify their process. The EULA is obviously for legal copies and how Apple licenses the end user to use those legal copies. The author of the article argues this is a win for EULAs, but from the evidence in his article, I cannot reach the same conclusion. #apple
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Nathan Obbards
11/14/09

@The Lab: I think it could easily be argued that there is a distinction between hackintoshes for personal use and for corporate profit. Even thought it is still a violation of the EULA, fair use doctrine would be far more lenient toward the end user than toward a corporation. While it would set some sort of legal precedent, it would be tough to say that the legal outcome would necessarily be the same, as long as the single user isn't reselling the hackintoshes.

I suspect, to an extent, that Apple doesn't care too terribly much about end users hackintoshing their computers as their lawyers do not aggressively send out Cease and Desist notices to websites telling people how to hackintosh their computer. I think they realize that people who create hackintoshes on their own already own or are likely to purchase Macs in the future, while those who purchase pre-made hackintoshes won''t. #apple
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The Lab
11/14/09

@ester: Your post gets at the real tough part of the legal system, that any legal precedent does not have the exact same fact pattern as the case in question. If this goes poorly for Psystar, the question becomes are there any significant differences between making one's own hackintosh and a company making them. You pointed out one interesting wrinkle, that they used only one license. I wonder if that or anything else will be enough to create a legal safe-haven for hackintoshes. My guess is no but I also can't imagine Apple coming after individuals. They may brick their systems with an update though.

#apple
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The Lab
11/14/09

@Nathan Obbards: That's a very broad interpretation of fair use. Technically it is illegal to even copy a CD you own. I, of course, think that's bullshit but that's a legal precedent. I would be shocked to see a fair use argument prevail here.

I agree with your argument that nothing will actually be done. I just stand in opposition to those who create hackintoshes and defend the legality of it when the legality is ill defined at best and about to get a whole lot more dubious.

#apple
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Nathan Obbards
11/14/09

@ester: Software piracy does fall under the realm of EULAs. That is part of why when you install new software on a computer it makes you agree to the conditions of the EULA. Without that, the you are not agreeing to the terms of the software and the distributor of the software is held liable, not you. In agreeing to the terms, you are agreeing that you have a legal, unpirated copy. By purchasing a Mac Mini, they agree to the EULA for the OS on that computer. They violated it by cloning the OS and using the clone to install it on multiple machines. #apple
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Nathan Obbards
11/14/09

@The Lab: Oh, I agree that it's a broad interpretation of fair use, but courts routinely take a broad approach to it and examine fair use based upon scale. Someone who makes a copy for posterity or for their shared home family are typically treated differently than someone who does so for distribution or to make a profit. I think a fair use argument for self would actually be a very strong one, but one that would ultimately fail not due to its own inadequacies, but to other legalities. Due to the Digital Millennium Copyright Act, things that previously fell under the fair use doctrine no longer were. For that reason, while strong and valid, a fair use argument would probably fail.

Edit: I forgot to add why I brought up the DMCA. In order to copy some materials that are privately owned by the end-user, DRM and other protective measures are often stripped or closed source, proprietary software have to be modified/hacked in order to be copied or used outside of their original intent. Accordingly, they violate the DMCA and are prosecutable, regardless of fair use.
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Edited by Nathan Obbards at 11/14/09 5:00 PM Nathan Obbards was starred Nathan Obbards was unstarred

ester
11/14/09

@The Lab: I actually finally worked my way through the summary judgement and there appears to be evidence that could deem hackintoshes illegal.

It mostly falls under the DMCA section where it states "Psystar has violated the DMCA by circumventing Apple's protection barrier and trafficking devices designed for circumvention." To me this means the court has determined the measures Apple takes to keep you from installing OSX on non-Apple computers is legal and circumventing the measures violates the DMCA. As you have to install something on any non-Apple computer to get around those measures incorporated into OSX, a hackintosh could be deemed as a violation of the DMCA.

Even with that, I'd agree that Apple isn't going to come after individuals. I find it highly improbable that hackintoshes will become a large enough market for Apple to go after it beyond the software update related means. #apple
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The Lab
11/14/09

@ester: Good work. My patience for legalese runs out quickly. Thanks for digging that up, seems more solid than a EULA breach.

#apple
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ester
11/14/09

@Nathan Obbards: I see your point, but based on what I read, it does not appear the summary judgement addresses the legality of the EULA, which appears to be what the Groklaw author claims. The judgement claims "The copies at issue here were not lawfully manufactured with the authorization of the copyright owner." While the EULA may extend the right to make a copy, the specific issue deals with distribution and copyright and that appears to be what the judgement claims has been violated.

In fact, from what I see, the only time the judgement talks about licenses is in discussion about another case in which more copies were made than licenses obtained. #apple
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Illundiel
11/14/09

@The Lab: I forget where the ruling came from, but any CD/DVD that you own you can copy and keep a back-up of(as long as you protect that version, never distribute it, and never use it in conjunction with a public use device) #apple
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Nathan Obbards
11/14/09

@ester: Ok, long post ahead. Copyright law has a large interaction with EULAs. The EULA states the ways in which the end-user can legally use the product. Courts go back on forth with EULAs, however, there have been cases of distinction where the defendant was found guilty based upon the EULA. EULAs explicitly state that the product is being licensed to the end-user, not sold. As such, they can legally dictate the ways in which their software can be used. The backbone of their argument is a violation of the EULA (hence the entire front end) with the DMCA as a critical piece of supporting evidence. Rather than using the DMCA to show a violation of fair use (which is the legal defence taken by Psystar), Apple is using it to show that Psystar violated software copyrights in order to circumvent the licensing agreement dictated in the EULA.

Legal mumbo jumbo from EULA:
-''By using the Apple software, you are agreeing to be bound by the terms of this license, unless you return the Apple Software in accordance with Apple's return policy. [...] If you do not agree to the terms of the license [...] for Apple Software included with your purchase of hardware, you must return the entire hardware/software package in order to obtain a refund.''

In keeping the Mac Mini, they agreed that they would follow the EULA presented by Apple.

-''The Apple software (including Boot ROM code), any third party software, documentation, interfaces, content, fonts and any data accompanying this
License whether preinstalled on Apple-branded hardware, on disk, in read only memory, on any other media or in any other form (collectively the "Apple Software") are licensed, not sold, to you by Apple Inc. ("Apple") for use only under the terms of this License. Apple and/or Apple’s licensors retain ownership of the Apple Software itself and reserve all rights not expressly granted to you.''

They are thusly agreeing that it is a licensed piece of software and not owned. Accordingly, they must follow the EULA.

-''You agree not to install, use or run the Apple Software on any non-Apple-branded computer, or to enable others to do so. This License does not allow the Apple Software to exist on more than one computer at a time, and you may not make the Apple Software available over a network where it could be used by multiple computers at the same time.''

They violated this point in two points and, as such, violated the copyright of the software. First, they installed it on non-Apple hardware (I'll get to why this is important shortly). Secondly, they violated the licensing agreement and installed a single use copy on multiple computers, making all but the original Mac Mini illegal, pirated copies.

-''You may make one copy of the Apple Software (excluding the Boot ROM code and other Apple firmware that is embedded or otherwise contained in Applebranded hardware) in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Apple Boot ROM code and firmware is provided only for use on Apple-branded hardware and you may not copy, modify or redistribute
the Apple Boot ROM code or firmware, or any portions thereof.''

Again, they violated this in two points. Firstly, they made multiple copies of the software to install on multiple machines when only one copy is covered by fair use. Secondly, they violated the DMCA and the licensing agreement by not using a perfect copy of the boot ROM, but one with a modified kernel.

-''You may not rent, lease, lend, redistribute, or sublicense the Apple Software. Subject to the restrictions set
forth below, you may, however make a one-time permanent transfer of all of your license rights to the Apple Software (in its original form as provided by Apple) to another party''

They violated this explicitly, thus violating copyright law and the agreement set forth by the EULA.

-''You may not and you agree not to, [...] copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Apple Software or any services provided by the Apple Software, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of Open-Sourced Components).''

They violated both the DMCA and the EULA in order to make the software run on non-Apple machines.

Components from the brief regarding the EULA and DMCA:

-''Mac OS X on both Mac computers and the DVD are covered by software license
agreements that provided that the software is "licensed, not sold to [the user] by Apple Inc.
("Apple") for use only under the terms of this License" (Chung Exh. 26 at ¶ 1). Apple’s license
agreements restricted the use of Mac OS X to Apple computers, and specifically prohibited
customers from installing the operating system on non-Apple computers.''

-''Apple has obtained three copyright registrations for Mac OS X. It has used lock-and-key technological measures to prevent Mac OS X from operating on non-Apple computers. This involved the use of a "kernel" extension, which is software that is executed and becomes part of the operating system on an Apple computer.''

-''Psystar copied Mac OS X from the Mac mini onto a non-Apple computer. This non-Apple computer was used as an "imaging station." Once on the imaging station, Mac OS X was modified. Psystar then replaced the Mac OS X "bootloader." The bootloader runs when a computer first comes on and locates and loads portions of the operating system into random access memory. Without a bootloader, Mac OS X would not operate. Psystar also disabled and/or removed Mac OS X kernel extension files and replaced them with other kernel extension files. Psystar’s modifications enabled Mac OS X to run on non-Apple computers. The modified copy became the "master copy" that was used for mass reproduction and installation onto other Psystar computers.''

Apple's lawyers were smart and dynamically tied the case to both the EULA and the DMCA, thus giving the reading of their EULA a stronger legal precedent in any future cases.

Sorry for the obscenely long post. #apple
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Nathan Obbards
11/14/09

@Illundiel: That's a touchy one since you technically can, but are not legally allowed to circumvent any DRM protections put on the CD/DVD as per the DMCA. #apple
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Illundiel
11/14/09

@Nathan Obbards: ummm, now i'm no lawyer but my understand is that you are purchasing the unlimited use for yourself and not the intellectual property(obviously not the intellectual property). so you can do whatever you want with it(as long as you don't edit it or show it to anyone else) #apple
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ester
11/14/09

@Nathan Obbards: Again, I see your point. However, I still maintain this is not about the EULA

If we focus on the components you mention from the brief:

The part about how the software is licensed not sold is in the statement portion of the brief, not the analysis. The part where it could come up in analysis and be an issue is with fair use. However, that argument (whether Psystar is owner or licensee) is not pursued because Psystar was not distribution legally manufactured copies.

The kernel extension part deals with the violation of the DMCA by circumventing the measures Apple has taken to protect their copyrighted material.

The part about the imaging station deals with how Psystar manufactured their illegal copies.

What I'm saying is, this judgement specifically deals with copyright infringement and based on what I have read (including your thorough post) by no means indicates the judge rules you must abide by the EULA (as claimed by the Groklaw author).

Because Psystar violated Apple's copyrights and used illegally manufactured copies, the EULA has no bearing on their individual machines because those machines are not using a retail copy that is covered by the EULA.

Now they did violate the EULA of the Mac Mini, but that specific issue is not addressed in this judgement. #apple
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Nathan Obbards
11/14/09

@ester: And this is why our legal system sucks, haha. I can completely see where you are coming from, but I also stand by my interpretation of the proceedings (read, you're not wrong, but neither am I). Interpretation of the law and rulings can be contradictory and sometimes cases can be used to make completely different arguments due to the way in which the lawyers and judges decide to interpret them.

I do agree with one point you explicitly made, that being ''by no means indicates the judge rules you must abide by the EULA," however I disagree in that I recognize that the ruling adds credence to the enforcement of EULAs due to the intrinsic linking of the EULA and the DMCA in this case. Apple pursued the violation of copyright through their EULA and, as such, linked the EULA with the outcome. It adds credence to EULAs in future cases, but does not explicitly state that EULAs must always be explicitly upheld. When a EULA is found to violate the fair use doctrine or in cases of bankruptcy, it can be negated, however, I think that by linking the two, Apple is building a stronger ground for future prosecution based upon violation of the EULA.

Edit: I forgot to add, thanks for reading my entire statement. I probably would have just skimmed it as, looking back, it was particularly long-winded.
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Edited by Nathan Obbards at 11/14/09 6:48 PM Nathan Obbards was starred Nathan Obbards was unstarred

ester
11/14/09

@Nathan Obbards: Yes, I think we're going to have to agree to disagree to an extent. Although, I have to admit I do see how this can be used to defend the EULA in future cases. #apple
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Sir Gibler
11/14/09

In reply to Psystar Is Royally Screwed
i love the morons tag on this article #apple
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Norbs
11/14/09

@Sir Gibler: Yes well deserved... they didn't even TRY to make it seem legal.

They could of sold hackintosh compatible computers with instructions that send you to the store to buy OS X. IMO they had no regard for the law.

They might as well of sold hacked copies of windows 7 and other illegal software on their site. I mean if your gonna do something illegal just go all the way. #apple
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MonkeyPaw
11/14/09

@Norbs: I think they were hoping to set legal precedent against Apple's closed system. #apple
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Kaiser-Machead
11/14/09

In reply to MacMall Early Black Friday Sale, Discounted Hardware Galore
And always check here first: [store.apple.com] #apple
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Pessimippopotamus

Zerod Zunaro

dragon:ONE
11/13/09

In reply to This Week's Best iPhone Apps
Hey, John, ever consider a "This Week's Best Android Apps"? Us Android users need some love, too.

Also, can one of the Gizmodo Powers That Be(tm) remove these spam posts in red from "pengzi1990"? #theweekiniphoneapps
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weatherman
11/13/09

In reply to This Week's Best iPhone Apps
Even if it is slightly different, and even if the developer thought of it on their own, I'd still like to take credit for having inspired ARGH when I wrote "I want to see an augmented reality application based on 'They Live.'" back in July. Now all the developer needs to do is add the option to blow them alien/ghost's heads off - I'd pay $2 for that. #theweekiniphoneapps
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Noobs-R-Us
11/13/09

In reply to Bill Gates Praises Steve Jobs For Saving Apple From Disaster
Gates has always been jealous of Jobs. Gates is a huge nerd and have always wished he were one of the popular kids like Jobs…. #billgates
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Kaiser-Machead
11/13/09

In reply to Bill Gates Praises Steve Jobs For Saving Apple From Disaster
Billionaire says something nice about other Billionaire, doesn't lose sleep because soft pillowy money cushions Billionaire from the drudgery of the world we plebes live in. I wish to enjoy such a financially orgasmic nirvana.

In all seriousness, gotta have respect for Gates. It's too bad he left Barney Rubble's Frankensteinian stand-in in charge.
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Edited by Kaiser-Machead at 11/13/09 5:08 PM Kaiser-Machead was starred Kaiser-Machead was unstarred

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