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The Psystar Public License
Friday, December 05 2008 @ 01:04 AM EST

This is for all you "freedom lovers" who got it in your heads that Psystar was fighting against EULAs. Here you go, a reader sent me Psystar's very own Psystar Public License, version 1.0.

1.0. Chortle. Get it while it's hot. That's my advice.

Please allow me to give you a brief tour, hitting the highlights. We'll start with the opening paragraph:

Please read this License carefully before downloading this software. By downloading or using this software, you are agreeing to be bound by the terms of this License. If you do not or cannot agree to the terms of this License, please do not download or use the software.
OMG. You mean I have to agree to Psystar's terms or I can't use the software? Like... um... that meanie Apple? Wait. Wait. How can that be? I thought Apple was supposedly the "bad guy" and Psystar was going to liberate its code for the good of mankind?

Folks, did you really think Psystar was fighting to overturn EULAs and set software code free? If you did, please keep reading.

Here's the charming next paragraph:

1. General; Definitions. This License applies to any program or other work which Psystar Corporation ("Psystar") makes publicly available and which contains a notice placed by Psystar identifying such program or work as "Original Code" and stating that it is subject to the terms of this Psystar Public License version 1.0 ("License"). As used in this License:
It applies to "any software Psystar makes publicly available". So... let me guess. Is that legalese for letting us know Psystar has proprietary software it doesn't share with us? Why, yes, I think it must. No? Ask your lawyer. It's surely fair to ask: why wouldn't Psystar share everything with us, and with Apple, for that matter? It wants Apple to share with the world Apple's "Original Code".

What is that funny smell? Flaming hypocrisy?

Let's not leap to conclusions. The next stop in our tour:

1.1 "Applicable Patent Rights" mean: (a) in the case where Psystar is the grantor of rights, (i) claims of patents that are now or hereafter acquired, owned by or assigned to Psystar and (ii) that cover subject matter contained in the Original Code, but only to the extent necessary to use, reproduce and/or distribute the Original Code without infringement; and (b) in the case where You are the grantor of rights, (i) claims of patents that are now or hereafter acquired, owned by or assigned to You and (ii) that cover subject matter in Your Modifications, taken alone or in combination with Original Code.
Well, well. What have we here? Psystar has patents? And it only shares them freely up to a point? "...but only to the extent necessary to use, reproduce and/or distribute the Original Code without infringement"? It's good to know Psystar recognizes the concept of infringement.

You might have to pay to license Psystar's patents, then? Red colored text means my eyes are bugging out. Let's skip down to paragraph 5, the next one that talks about patents:

5. Limitations on Patent License. Except as expressly stated in Section 2, no other patent rights, express or implied, are granted by Psystar herein. Modifications and/or Larger Works may require additional patent licenses from Psystar which Psystar may grant in its sole discretion.
Modifications may require additional patent licenses from Psystar, eh? So, information doesn't really want to be free after all? Only Apple's information yearns to be free so Psystar can have it? Well, your patents share Apple's yearning:
3. Your Grants. In consideration of, and as a condition to, the licenses granted to You under this License, You hereby grant to any person or entity receiving or distributing Covered Code under this License a non-exclusive, royalty-free, perpetual, irrevocable license, under Your Applicable Patent Rights and other intellectual property rights (other than patent) owned or controlled by You, to use, reproduce, display, perform, modify, sublicense, distribute and Externally Deploy Your Modifications of the same scope and extent as Psystar's licenses under Sections 2.1 and 2.2 above.

4. Larger Works. You may create a Larger Work by combining Covered Code with other code not governed by the terms of this License and distribute the Larger Work as a single product. In each such instance, You must make sure the requirements of this License are fulfilled for the Covered Code or any portion thereof.

Wait a sec. If I contribute modifications, I grant a license to *all* my IP, not just patents? So my trademarks are Psystar's to use and the world's? And my copyrights in the code? I give up everything on my modifications, but I might have to pay for a license to some of Psystar's patents? Does Apple ask for anything even close to that? Uh oh. My dancing baloney meter just rang. But surely these Psystar freedom fighters are going to let us use their code freely and do whatever we want with it, no? Actually, no. Not exactly.

Here's some language I don't understand, or more accurately I understand to mean more than one thing conceivably:

2.2 Modified Code....

(c) If You Externally Deploy Your Modifications, You must make Source Code of all Your Externally Deployed Modifications either available to those to whom You have Externally Deployed Your Modifications, or publicly available. Source Code of Your Externally Deployed Modifications must be released under the terms set forth in this License, including the license grants set forth in Section 3 below, for as long as you Externally Deploy the Covered Code or twelve (12) months from the date of initial External Deployment, whichever is longer. You should preferably distribute the Source Code of Your Externally Deployed Modifications electronically (e.g. download from a web site).

You have to distribute it with source under these terms for a year? Then what happens to the license terms? I don't know. Ask your lawyer. I think they mean to express how long the source code must be displayed. But the phrase about under these terms means to me, conceivably, that at the end of the term, maybe there could be new license terms. And the part I'm not clear on is, what happens if you've handed over all your IP rights with your license, and then Psystar takes it all under a new license? I don't know.

Here's a bit of a warning:

2.4 Third Party Rights. You expressly acknowledge and agree that although Psystar and each Contributor grants the licenses to their respective portions of the Covered Code set forth herein, no assurances are provided by Psystar or any Contributor that the Covered Code does not infringe the patent or other intellectual property rights of any other entity. Psystar and each Contributor disclaim any liability to You for claims brought by any other entity based on infringement of intellectual property rights or otherwise. As a condition to exercising the rights and licenses granted hereunder, You hereby assume sole responsibility to secure any other intellectual property rights needed, if any. For example, if a third party patent license is required to allow You to distribute the Covered Code, it is Your responsibility to acquire that license before distributing the Covered Code.

3. Your Grants. In consideration of, and as a condition to, the licenses granted to You under this License, You hereby grant to any person or entity receiving or distributing Covered Code under this License a non-exclusive, royalty-free, perpetual, irrevocable license, under Your Applicable Patent Rights and other intellectual property rights (other than patent) owned or controlled by You, to use, reproduce, display, perform, modify, sublicense, distribute and Externally Deploy Your Modifications of the same scope and extent as Psystar's licenses under Sections 2.1 and 2.2 above.

Personally, I'd redline that part about other people's intellectual property rights and how Psystar won't lift a finger to help you if you end up getting sued. But the whole wording is like someone put the GPL through a computer translator and it comes out not only garbled but sounding like it's saying the opposite.

If you sell support or indemnification, you have to indemnify Psystar, so if anybody sues you, it's not Psystar's problem:

6. Additional Terms. You may choose to offer, and to charge a fee for, warranty, support, indemnity or liability obligations and/or other rights consistent with the scope of the license granted herein ("Additional Terms") to one or more recipients of Covered Code. However, You may do so only on Your own behalf and as Your sole responsibility, and not on behalf of Psystar or any Contributor. You must obtain the recipient's agreement that any such Additional Terms are offered by You alone, and You hereby agree to indemnify, defend and hold Psystar and every Contributor harmless for any liability incurred by or claims asserted against Psystar or such Contributor by reason of any such Additional Terms.
But, then, in paragraph 8, Psystar expressly states that the code might not work, and they offer no warranty. Here's the opening part, before they start to shout in all caps:
8. NO WARRANTY OR SUPPORT. The Covered Code may contain in whole or in part pre-release, untested, or not fully tested works. The Covered Code may contain errors that could cause failures or loss of data, and may be incomplete or contain inaccuracies. You expressly acknowledge and agree that use of the Covered Code, or any portion thereof, is at Your sole and entire risk.
Put that together with the quoted paragraph above it, and what do you get? Trouble? Right here in River City? If you sell support, it's all on you, your mistakes and their "pre-release, untested, or not fully tested works." What? Are you nuts? Ask your lawyer.

What about trademarks? Psystar keeps those all for itself, revealing themselves as lovers of IP rights in all their forms, so long as Psystar is the beneficiary:

10. Trademarks. This License does not grant any rights to use the trademarks or trade names "Psystar", "Psystar Corporation", "Open Computer", "OpenPro", "Open Computing", "OpenServ" or any other trademarks, service marks, logos or trade names belonging to Psystar (collectively "Psystar Marks") or to any trademark, service mark, logo or trade name belonging to any Contributor. You agree not to use any Psystar Marks in or as part of the name of products derived from the Original Code or to endorse or promote products derived from the Original Code other than as expressly permitted by and in strict compliance at all times with Psystar's third party trademark usage guidelines which are posted at http://www.psystar.com/legal/guidelinesfor3rdparties.html.
So, let me get this straight. They can sell stuff using Apple's trademarks, and yours, but woe betide us if we use Psystar's? Anybody note an imbalance in the universe here? But I saved the best for last:
11. Ownership. Subject to the licenses granted under this License, each Contributor retains all rights, title and interest in and to any Modifications made by such Contributor. Psystar retains all rights, title and interest in and to the Original Code and any Modifications made by or on behalf of Psystar ("Psystar Modifications"), and such Psystar Modifications will not be automatically subject to this License. Psystar may, at its sole discretion, choose to license such Psystar Modifications under this License, or on different terms from those contained in this License or may choose not to license them at all....
Well, well. You gave them rights, but when it's their turn, it's maybe they will, and maybe they won't. They might not license their stuff at all? And *Apple* is a meanie because it has license terms? Puh lease.

And one last cherry on top, Exhibit A, includes this term:

This file contains Original Code and/or Modifications of Original Code as defined in and that are subject to the Psystar Public License Version 1.0 (the 'License'). You may not use this file except in compliance with the License. Please obtain a copy of the License at http://www.psystar.com/opensource/ppl/ and read it before using this file.
You have to comply with Psystar's license or you can't use the code, even if you didn't say I agree? Well, I declare.

Psystar is promoting Open Source "in every way possible?" That's what they told us [Google the license by name], before they revamped their web site.

And Psystar is fighting to prove EULAs are from the devil?

I think not, m'lords.

Update: Some are saying that this license is just a cut and paste of the Apple Public License. That would be damning enough, if it were true, in that Psystar is in court claiming Apple's EULA is the spawn of the devil and all. But the two licenses are not identical. Here's one paragraph from the Psystar license:

2.2 Modified Code. You may modify Covered Code and use, reproduce, display, perform, internally distribute within Your organization, and Externally Deploy Your Modifications and Covered Code, for non-commercial purposes, provided that in each instance:
And here's the same general paragraph from Apple's:
2.2 Modified Code. You may modify Covered Code and use, reproduce, display, perform, internally distribute within Your organization, and Externally Deploy Your Modifications and Covered Code, for commercial or non-commercial purposes, provided that in each instance You also meet all of these conditions:
See the difference? It appears Psystar took the Apple license and then made it *more* restrictive.

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