more on OS X hack sites closed;

[Dave Farber <dave () farber net>]

-------- Original Message --------
Subject: Re: [IP] more on OS X hack sites closed;
Date: Sun, 26 Feb 2006 19:44:13 -0800
From: John David Galt <jdg () diogenes sacramento ca us>
Organization: Diogenes the Cynic Hot-Tubbing Society
To: dave () farber net
References: <43F9BEB8.8090609 () farber net>

Dave Farber wrote:
> I hardly see how "fair use" can be argued here.
>
> This isn't a record company saying that music that you purchased
> can't be copied for online sharing. This isn't a movie studio
> prohibiting you from making a backup copy of the DVD you purchased or
> quoting/excerpting material from it for fair use.
>
> This is a company protecting their assets (software) from reverse
> engineering and modification to run on hardware which they do not
> support. This is a company protecting what they see as the value of
> their intellectual property.

This is a company preventing the porting of its OS to other machines.
The correct analogy for a work of recorded music would be if a music
publisher designed its CDs so that you can't copy the music to a
cassette tape so you can play it in your car -- and then used the law
to shut down people who tried to defeat that restriction.  Such music
porting is an accepted part of fair use; software porting should be too.

> A "Macintosh" is sold not as a OS or a piece of hardware, but as a
> complete system.

That marketing decision by Apple does not constitute a moral obligation
on the part of its users.  Similar "tying" arrangements have repeatedly
been overturned by the courts.  DEC vs. System Industries (a maker of
third party hard-disks for VAXes, a product DEC tried to kill by using
a patented connector on its backplanes and refusing to license the
patent to third party hardware makers) is an example from about 1990.

> This situation is no different then when DEC tied VMS OS licenses to
> their VAX machines. The license stayed with the machine, not the
> owner of the system. OS and hardware were considered integrated. This
> is the value Apple stress when buying a Mac, the synergies they can
> provide by tuning hw and sw. Breaking this bundle "breaks" their
> product and destroys the value they attempt to create. While this
> could be acceptable if you had actually purchased the OS, in this
> case you didn't, a copy of the OS was granted to you for use on the
> machine it was purchased on only.

I continue to believe, based on the Uniform Commercial Code, that these
users have in fact purchased the OS and that "clickwrap" licenses have
no legal effect, at least if the purchase was made in one of the 48
states that did not ratify UCITA.


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