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Continuing the Psystar debate

by Nicholas Buenk / October 13, 2009 6:09 PM PDT

I was reading a story on a rather similar issue, Texas instruments calculator hackings who were trying to install a different operating on their calculator, and the article brought up Section 117 of the copyright law, which states:
http://www.copyright.gov/title17/92chap1.html#117
Section 117
'(a) Making of Additional Copy or Adaptation by Owner of Copy. ? Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.'

So copyright law would seem to be to be pretty clearly on Psystar's side. You can legally modify software to run on different hardware, that is in the law.
Now it's only a matter of which the court gives importance to, Apple's EULA or written law. And I do not think a EULA is above the law.

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Not the same at all.
by minimalist / October 13, 2009 11:12 PM PDT

The calculator hackers were putting their own OS on TI's hardware. Putting Linux on a Macintosh you have legally purchased is nowhere near the same thing as putting a copy of an OS (and an u-p-g-r-a-d-e copy at that) on your own hardware and then reselling it on a commercial level , for a healthy profit. Psystar knows damn well that upgrade versions of retail OS's are not eligible to be put on new machines.

Nobody would be surprised if Microsoft sued the pants of a company for hacking upgrade copies of Windows 7 to resell on their own machines. A Free market is not the same thing as a free for all. There are rules. If you want to play in Microsoft's sandbox you buy OEM copies. And just because Apple does not sell OEM copies does not give people the right to take the upgrade and do anything they want.

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I don't agree
by Nicholas Buenk / October 14, 2009 2:37 AM PDT
In reply to: Not the same at all.

I don't see why software should be treated differently to hardware, why should it matter in which the restriction is.

I quoted part A of section 117 earlier, here is Part B.
(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation. ? Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

Well it does say adaptations so prepared may be transferred only with the authorisation of the copyright owner, so this is a restriction on reselling of modified software that the user could do without restrictions themselves. But there is a way around that which is easy. Don't preinstall the OS, but have one of those EFI boot loaders that lets you install an unchanged retail copy of OS X.


With regards to Microsoft, I don't necessarily see it being the job of the government to enforce Microsoft's business model on their customers, if they find a back door that is not technically theft. In a properly functioning free market what would happen is Microsoft would re-examing their model of cheaper upgrade editions and expensive full editions, and think about offering a full version at a lower price instead.

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Because it just is
by minimalist / October 14, 2009 4:11 AM PDT
In reply to: I don't agree
I don't see why software should be treated differently to hardware, why should it matter in which the restriction is.

Because in most developed countries its the law and that just the way it is. Whether you view physical and intellectual property as the same thing does not really matter. What matters is what's on the books and precedents.

"Adaptations so prepared may be transferred only with the authorization of the copyright owner."

And this is exactly what Psystar is violating.

Well it does say adaptations so prepared may be transferred only with the authorisation of the copyright owner, so this is a restriction on reselling of modified software that the user could do without restrictions themselves. But there is a way around that which is easy. Don't preinstall the OS, but have one of those EFI boot loaders that lets you install an unchanged retail copy of OS X.

Ah, yes the sneaky route. Like selling bongs... excuse me "water pipes"... in head shops. Not a very lucrative business model though when you constantly have to make sure you're not exposing yourself to a liability. I guess they would be welcome to try this technique but the added hassle seems like it might impede sales. And the lawsuit is not about this technique. Its about them hacking the software and installing it on equipment and selling it for profit.

With regards to Microsoft, I don't necessarily see it being the job of the government to enforce Microsoft's business model on their customers, if they find a back door that is not technically theft.

Without a functioning legal system the free market can not exist. Don't confuse a free market with a free for all. Anarchy this isn't. Free markets have rules and even the most libertarian free market advocate understands that the market can not exist without the legal system guaranteeing businesses certain basic protections. Market corrections happen when people buy or don't buy something. Breaking the law is not a market force. Its just selfishness.

You don't like Apple products or the terms of their licensing? Don't buy them. Its not Apple's responsibility to sell you the software you want in the form you want price you want. Most sane companies would respond to what the market is saying but its not their obligation to do anything. Its their software after all. If they wanted to charge you a millions dollars for it it would be their prerogative. If they wanted to only bundle it in with new computer purchases it would be their right as well.
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Free market
by Nicholas Buenk / October 14, 2009 9:30 AM PDT
In reply to: Because it just is

Does not mean freedom to do whatever you like and have the government support you against anyone who complains. A market that doesn't react to the consumer but where the government enforces a sellers business model on the market, is no free market at all.

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The law,
by minimalist / October 14, 2009 11:28 PM PDT
In reply to: Free market

and intellectual property and licensing are very much a part of the law, is the basis on top of which a free market operates. IP is not the same as physical property no matter how much you think it is. They are different beasts and they are treated differently under the law.

Just because someone CAN do something (hack software and resell it on their own hardware) does not mean they are legally justified in doing so. Under the logic that physical property and IP are the same I could justify all sorts of nefarious activities. I could capture a stream of music and rebroadcast it or burn it and resell it. I mean I could do it and I "paid" for it so its mine right?

And consumers who buy illegal obtained products are not a legitimate "market force".

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and basing your business on
by minimalist / October 15, 2009 12:07 AM PDT
In reply to: Free market

accepted standards of license law is not the same as "doing whatever you like".

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The rights of the owner of IP
by minimalist / October 15, 2009 5:54 AM PDT
In reply to: Free market

Intellectual simply property is not the same as physical property and the law recognizes this difference. Ownership means you have certain innate rights about what can and can?t be done with your IP without your consent. You are the author and owner of that intellectual property and licenses are the way your rights are upheld when the content ceases to be physical.

Even Creative Commons recognizes this basic fact. Just because it is technologically possible to screen grab a CC picture off of Flickr and use it against the copyright holder?s wishes does not mean you have the right to do so. Just because you can do something does not mean you should nor does it mean you are in the right. And when the law (rightly) steps in and punishes you for your actions you would look like a foll to scream ?but its just the free market at work!? Technological might does not make right..

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