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

From: ZnU
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:57:27 -0000
User-agent: MT-NewsWatcher/3.5.3b3 (Intel Mac OS X)

In article <>,
 Alexander Terekhov <> wrote:

> 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. 
> +1
> >                   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.
> +1
> Just like the Xbox OS.

Right. At that point, the OS becomes legally indistinguishable from, 
say, the firmware on a particular brand of digital camera, which I don't 
think anyone would argue other digital camera vendors had a right to 
install on their cameras.

> > > > 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.

I'm not sure I'm exactly grasping your point. Yes, the GPL, once 
accepted, is a contract. But it's a contract backed up by the force of 
copyright law, because if you don't accept the contract you have no 
right to distribute additional copies of the software.

(Mind you, there is some overreach in GPL3, in that it claims you need 
to accept the license merely to _modify_ a work, even without further 
redistribution. IMO this is invalid, as you'd have that right under 
first sale doctrine even without accepting the license. But this is not 
really the issue everyone is interested in with respect to GPL validity.)

> 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).

"The game of professional investment is intolerably boring and over-exacting to
anyone who is entirely exempt from the gambling instinct; whilst he who has it
must pay to this propensity the appropriate toll." -- John Maynard Keynes

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