Psystar isn’t my idea of a modern Don Quixote. Psystar’s latest tack in its legal wrangle with Apple (for those not familiar with the case, Psystar is selling Mac clones with Mac OS X pre-installed in — Apple claims — violation of its EULA) is to claim that it bought copies of Mac OS X fair and square and can resell them how it chooses. Apple cannot restrict Psystar’s ability to resell goods.
Now, in general, I like Apple and I don’t like Psystar. In “the world as it is” Apple is one of the relatively good guys, and Psystar is, at best, simply a bunch of guys trying to profit from nooks and crannies of IP law. Apple won’t license OS X, but — they figure — maybe we can do some kind of end-run around it.
This latest tactic is pretty interesting. If it succeeds the precedent it sets could basically kill the software industry. The software industry is devised on a legal fiction — that when you buy a box labelled “Adobe Photoshop CS3” you are buying a license (to use Photoshop CS3 as per the restrictions set forth in the EULA) and not a physical bunch of atoms to do with as you will (e.g. install a copy, crack its password protection, and then install cracked versions on every computer in your large organization).
Now, you may argue that Psystar isn’t committing piracy. It isn’t (for example) cracking its copy of Mac OS X (oops, actually it is) or selling more copies of it than it buys “fair and square”. But if the EULA’s strictures against modifying or reverse engineering the software or installing and running it on non-Apple computers isn’t valid, why should any other such stricture be?
This is a very slippery slope. More of a cliff, actually. Depending on how you read it, the DMCA really forbids you from playing a digital video altogether, since in order to play it you need to make copies of it all over the place (e.g. in the disk’s memory cache, your computer’s system RAM, your cache, your video card, and so on and so forth). In order for any of these agreements to make sense we need to close our eyes and wish really hard. Now if you come along and start taking an axe to clear cut, tangible, and obvious license conditions — like not being allowed to modify a product, reverse engineer it, or run it on unauthorized hardware — exactly how are the tooth fairy conditions going to survive?
I’d love to see the fantasy world of software licensing get a good whack in the head, but powerful interests will make sure such a thing never happens (at least, not in one seismic shift). In the meantime, I’d prefer for someone other than Apple to get it in the neck when software licensing gets a dose of reality.