Open source should support Apple over Psystar

Open source should support Apple over Psystar

Summary: What is at the heart of open source? Contracts. The BSD and GPL licenses are contracts, which people freely enter into before they agree to download. Apple's EULA is the same sort of thing.

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TOPICS: Apple, Open Source
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Psystar logoI have been wracking my brain all day for an angle on this Apple-Psystar story (great work by Adrian Kingsley-Hughes) and I can't come up with one.

Save this. Open source should be supporting Apple here.

Think about it. What is at the heart of open source? Contracts. The BSD and GPL licenses are contracts, which people freely enter into before they agree to download. Apple's EULA is the same sort of thing.

Sure, the Apple EULA is nasty and green and yucky, while the open source licenses are juicyful and filled with deliciousness.

Apple licenses tie you down and are written in a way that would have Einstein tearing his hair out. Open source licenses give you freedom and are written in a language called English unknown to most lawyers.

But if a company can ignore an Apple EULA, another company can ignore the GPL. Isn't that what folks like Harold Welte at GPL Violations are fighting so hard for, the recognition of software contracts as legitimate?

To those who like to stick it to proprietary outfits -- and Apple is the most proprietary outfit there is -- this may stand as an inconvenient principle. But it is a principle.

Principles are only worthwhile when they are applied consistently. Otherwise they are mere flags of convenience.

Topics: Apple, Open Source

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116 comments
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  • You're off

    BSD and GPL are licenses
    EULA is a contract
    rpmyers1
    • Way off

      "BSD and GPL are licenses
      EULA is a contract"

      End User Licensing Agreement - hmmm.

      Open source relies on and respects copyright.

      You have a choice whether you want to use code under
      whatever license. If Apple doesn't abide by the license
      conditions for the open source code they use I'd like to see
      action taken immediately. However others should also be
      prosecuted for using Apples (or anyone elses) code
      improperly.
      Richard Flude
      • EULA = Doublespeak

        It doesn't matter what a EULA is called, it is not a license.

        What rights do GPL and BSD grant? (distribution, not normally allowed)

        What right does a EULA grant? (none, it takes away rights that are normally granted by copyright law - copyright law already grants you the right to run the program, so the EULA is not needed)
        rpmyers1
        • Can we just say

          That the EULA is an agreement, whether it be a license or a
          contract?

          I guess it's the agreement part that you don't like. OK, well
          then perhaps you could explain to us why it is ok to hold
          Apple's EULA invalid. How does that position better serve
          society in our digital age?

          Thank you.
          Len Rooney
          • Yes We Can

            We can call them marshmallows, but that doesn't make the
            legal distinctions disappear, or buy back the time we'll
            waste while imprecisions made while building an argument
            are corrected.

            As to the a few steps above regarding the EULA, violations
            are treated as copyright infringement and not contract
            violations, that should be a clue as to its nature.

            Meanwhile, as to the real question, if this was a serious
            challenge to copyright law then maybe, yes, open source
            should give a damn. It is instead going to be a quick fold,
            an effort by Apple to redefine contributory infringement, a
            license loophole dance, or some sort of anti-trust defense.
            I don't know as I would say open source has to care about
            any of that, with the exception of a possible expansion of
            contributory infringement.
            DannyO_0x98
          • Marshmallows

            Marshmallows aren't really anything like agreements. I
            mean you can a agree with the existence of said
            marshmallow or not, but most of us are still looking at the
            same marshmallow afterwards.

            Advancing this discussion toward more 'legal' language
            does nothing more than attempt to obscure the idea that
            each user of OS X is asked to agree with the license terms
            or not. It's a boolean response that is required, thank you.
            Len Rooney
        • The EULA does take away rights...

          That's Apple's choice, in writing the contract. You're free to agree to it or not agree to it. That's your choice.

          But once you agree to the contract -- and Psystar did -- you're bound by its terms. No matter how onerous.
          DanaBlankenhorn
          • Did they agree?

            Right of First Sale allows them to resell, and it would be possible to set it up so that there is no clickthrough agreement.

            DMCA would also arguably allow the install and resale (interoperability).
            rpmyers1
          • That's not true

            [i]But once you agree to the contract -- and Psystar did -- you're bound by its terms. No matter how onerous.[/i]


            If the terms of a contract are illegal, then the contract is not legally enforceable. For example, you and I cannot enter into a legally enforceable contract in which I kill someone that you don't like in exchange for large sums of money from your Swiss bank account. If I do the job and you don't pay me, I can't get a court to force you to pay me because the actions leading to the lawsuit and the terms of the agreement are not allowable under the law.

            But, the rendering of a contract or part of a contract as illegal does not necessarily render the entire contract void, and it certainly does not render all contracts entered into by everyone else void. Assuming that the potential tossing of Apple's EULA will cause all EULA's to be junk is not logical. The only really questionable portion of the EULA is the inability to install the software on non-Apple hardware, a point which is likely not in other EULAs. Contracts which do not undermine the law (assuming that it does, of course, until the courts decide, we don't know for sure) would be valid because there is no legal standing to void them.
            laura.b
          • There it is

            Laura.b's public call to raid and take away Apple's IP rights:

            "The only really questionable portion of the EULA is the
            inability to install the software on non-Apple hardware, a
            point which is likely not in other EULAs."

            Perhaps you should send the same memo to Microsoft
            (XBox, Zune), Sony, Nintendo and all companies who seek
            to make and market a whole widget 'device' as opposed to
            just hardware or just software. You're asking if that should
            be legal or not.

            Buying a boxed version of OS X assumes that you have
            already purchased a Mac computer and wish to perform an
            update. The boxed version is simply that, an update for
            the Mac computer device. Purchasing the boxed OS X
            alone does not fully compensate Apple for this upgrade
            software. Apple finances the ongoing development of it's
            System Software with the sale of a complete Computer
            Device. Apple's business model is quite different than
            Microsoft's in this regard.

            Purchase seldom buys unrestricted usage for anything. Try
            driving or leaving you unlicensed car on a city street. Or
            try putting a laundry line outside the window of your new
            condo. As consumers we are free to enter into both
            purchase and lease agreements for property, whether real
            or intellectual. Apple offers a value proposition regardless
            of whatever technology (hard/soft) it uses. Buying a Mac is
            like buying a condo in a gated community and those of us
            who can afford it buy it realizing that it will be a managed
            experience and there will be property restrictions to
            comply with, however we weigh those things against the
            benefits and agree to do so. This is an exercise of
            consumer freedom and choice because we both know that
            there are plenty of cheaper trailer parks on the other side
            of town with far less restrictions. It's simply a mater of
            having the proper amount of cash and making a choice.

            But now laura.b is standing outside the gates with a rabble
            and she's questioning whether guns or pitchforks are in
            order :)
            Len Rooney
          • Confusion and Misunderstanding

            "Perhaps you should send the same memo to Microsoft
            (XBox, Zune), Sony, Nintendo and all companies who seek
            to make and market a whole widget 'device' as opposed to
            just hardware or just software. You're asking if that should
            be legal or not."
            But Microsoft is not daft enough to sell stand-alone versions of the Zune software then claim that you can't use that software on something other than a Zune. You knew that, though (based on your next paragraph), and were just trying to confuse the argument.

            "Buying a boxed version of OS X assumes that you have
            already purchased a Mac computer and wish to perform an
            update. The boxed version is simply that, an update for
            the Mac computer device."

            Is it really? Is it marked as an upgrade copy? If it is, then this case is open and shut, but I really doubt it since nobody seems to be mentioning that fact. It doesn't really matter what Apple /intended/ for you to do with the software. Once you purchased it, you get to use it pursuant to the EULA and local law.

            I have suggested elsewhere that Apple change to selling upgrades only. Psystar would have no more business once current stocks ran out.

            The rest of your comment is just bashing laura.b.
            daengbo
          • What the hell are you smoking?

            A contract that is based on illegal terms is not legally enforceable.

            That's all. No bashing of any company, no side taking, no call to arms. A simple note of a fact that was ignored.

            You need to learn how to f*cking read before you come at me with your garbage again.
            laura.b
          • A License grants rights and withholds others

            A License grants rights and withholds others, which is very
            different from taking away rights. Without the license,
            there is no right to use the software granted.

            However, this seems to be in conflict with the Doctrine of
            First Sale in this particular case. The question then
            becomes which takes precedence over the other.

            I don't see how this (Doctrine of First Sale) conflicts with
            the GPL in any way. Distributors of Linux are free to sell or
            give it away so long as source code, attribution, and the
            license itself is included.
            Marcos El Malo
          • On second thought . . .

            You might be raising an interesting point vis-a-vis GPL 3,
            which governs hardware usage in addition to distribution.
            Marcos El Malo
          • Actually it doesn't *restrict* hardware usage

            The GPL3 may have some issues but hardware restriction isn't one of them. You can run GPL3 software on any hardware you please--the "restriction" is that the hardware builder *not* make hardware locks to prevent a program from running on the hardware.

            Thus tivoization is forbidden under GPL3. In other words, the GPL3 restricts the *hardware maker* from building artificial barriers to anyone running any software on the system.

            Looking at that sentence, I'm struck by the through that anti-virus softare might then run afoul of the GPL3! :)

            I guess you'd then fall back to the "user control" doctrine underlying all GPL...

            Hmm. Bet "legal" keyboard loggers and so on would also fall afoul of the GPL. Interesting... (evil grin at spyware makers).
            wolf_z
          • There's always an implied license

            so technically a product doesn't have to include a license for you to use that product. I can write a program and put it out on the web or give/sell it on install media without including a license and the one who obtained it could use it without having an explicit license. Generally, a license is included not only to grant users the ability to use the product, but also to limit the liability of the producer of the product. Of course, if I include a license with my product then the user is bound by that license unless the license is declared void by law. So, the question comes is whether Apple's EULA is legally enfoceable or not. I don't see why it wouldn't be; however, the courts will have the final say on the matter if the case goes to court.
            alaniane
          • Option nunber 3 - You challenge the validity of said contract.

            Any contract can be challenged.

            I have seen business contracts of all sorts challenged in court and they are regularly modified when the judge believes conditions, circumstances, and contract wording have reached an impass.

            As an example, I can not require something that is not legal. Ever see the TV ads when certain restrictions do no apply in certain states?

            Fuether, there is still a huge legal question of, "did the person really agree"? By and large the judge will test this question in two ways. Did both parties understand all the terms, and were both given the opportunity to modify, contibute, strike out, etc. terms of the contract.

            In other words, a contract is a negotiated agreement between two parties where either may back out at anytime without ramification. (Before they have an agreement in writing.) That simply is not the case with most EULAs. For the average user, you can't even return the software to where you bought it for a refund once you have opened and used it to read the EULA.

            Another point that will certainly be challenged is, "does Apple have the right to dictate the hardware"? That is fundemental to Prystar and is the real question. One the judge is going to have to take a very hard look at. I can think of no product of any sort in the market today where the manufacture can through leagl methods, dictate the the end users final use.

            I mean if I want to buy a $200 ink pen and use it as an ice pick that is my right. Or a million other examples.

            My gut feeling here is that if this premis is challenged properly the courts would agree. The only real question, can Prystar deal with the cost of being right in the US court system and stand their ground?
            No_Ax_to_Grind
        • Actually

          "It doesn't matter what a EULA is called, it is not a license."

          Actually it is called on because it is.

          "What rights do GPL and BSD grant?"

          The right to us someone else's copyrighted code (with
          conditions).

          "What right does a EULA grant?"

          The same thing (with different conditions)
          Richard Flude
          • Wrong

            There are no conditions to using BSD or GPL code. You can use it any way you like. There are only conditions for redistribution.
            daengbo
      • RE: Open source should support Apple over Psystar

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