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Re: Psystar's legal reply brief in response to Apple

From: Alexander Terekhov
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:57:21 -0000

ZnU wrote:
> I actually agree with Psystar's interpretation of copyright law.
> Software vendors have created this legal fiction that software is
> licensed, not sold, and therefore they have the right to apply all sorts
> of post-sale restrictions, something that everyone would consider absurd
> in other markets. 


>                   The case law on this issue is all over the map. How
> the courts will ultimately decide is not at all clear.
> The catch for Psystar is that even if they get a ruling in their favor,
> Apple can just change the way OS X is distributed in order to neatly
> sidestep that and still prevent the sale of unauthorized Mac clones.

Another catch is potential use of patents by Apple to block any clones
of Mac.

This is how IBM (legally) uses patents to block any clones of Mainframe,
including software emulators ala Hercules.

> Only making non-upgrade copies of OS X available with new Macs, not at
> retail, would accomplish this quite effectively for instance.


Just like the Xbox OS.

> > > They are suing for copyright violation over an act that they
> > > should only be able to recover from as a contract violation.
> >
> > Ah! Now you're getting warm. I want you to think about the GPL. If there
> > is a violation, how is it enforced?
> >
> > Is it not by copyright law? And didn't all the antiGPL trolls like
> > Terekhov and Dan Wallace argue for years on every message board that
> > didn't ban them that the enforcement of the GPL should be under contract
> > law instead of copyright law?
> Maybe I'm wrong, but my understanding is that the same considerations at
> work in the Apple/Psystar case don't quite apply to the GPL. The GPL
> only discusses the terms under which you may _distribute_ software, not
> the terms under which you may _use_ it. Since distribution actually _is_
> an exclusive right under copyright law, one must agree to the GPL to
> have any right to distribute the software at all. 

Once a copy is made under the GPL, it falls under "first sale" on the
only cause of action is the contract breach, not copyright infringement.

Note that in contrast to the GPL, neither Apple, nor IBM, nor Microsoft
grant the right to make copies of their operating systems beyond the
rights granted by the copyright law exceptions (such as 17 USC 117).


(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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