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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 15:57:21 -0000
User-agent: MT-NewsWatcher/3.5.3b3 (Intel Mac OS X)

In article <address@hidden>,
 Alexander Terekhov <address@hidden> wrote:

> It's short and really nice.
> 
> http://www.groklaw.net/pdf2/ApplevPsystarAppeal-21.pdf
> 
> "This reply brief addresses Apple’s response on
> copyright misuse as well as those unanticipated
> arguments that Apple made in response to the
> sealing-order and scope-of-the-injunction issues.
> 
> COPYRIGHT MISUSE
> 
> Copyright gives authors the right to control
> the copying, creation of derivative works from, and
> distribution of their works. As Apple correctly
> points out, copyright allows authors to refuse to
> allow others to do some or all of these things — to
> veto copying, the creation of derivative works, and
> distribution of their creative output.

[snip]

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

> > 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. This is in contrast to 
Apple's EULA, which seeks to limit activities in which Apple does _not_ 
have an exclusive right.

[snip]

-- 
"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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