Apple's Attempt to be Clever Backfires

I recently had the opportunity to read over one of Apple's alleged "software license agreements". In an apparent attempt to work around the many problems of claiming to license software, when in fact they are selling it, Apple has added the following line to their "licenses":

You own the media on which the Apple Software is recorded but Apple and/or Apple's licensor(s) retain ownership of the Apple Software itself.

This is the first time I've ever read an Apple "license agreement", so I don't know how long they've been using this line. But I bet there are plenty of software pirates out there that would just love to use that line as a defense. "I didn't copy the software, your Honor, I just copied the media that it was recorded on."

Seriously though, one might interpret their line to mean they own the "copyright" in the "Apple Software itself", but I do not think this is what they mean. Copyright law already firmly addresses that issue so there is no need for Apple to reiterate that.

Apple must mean what they appear to be saying, that a copy of software can be separated from the media on which it is recorded for the purposes of transacting a sale. I can only guess that this is an attempt to find a solution to the problems with the tired old "licensed, not sold" blurb. After all, SoftMan so eloquently illustrated how obvious it is that software publishers are in fact selling something. With nowhere to hide, Apple has apparently decided to try to change what it is they are selling. The "logic" behind this change is that the end-user still doesn't own a copy of the software, because Apple owns the software. The end-user only owns a round plastic disc.

Apple's lawyers obviously haven't been doing their homework. What they seem to fail to understand is that the physical media is, by legal definition, a copy of the software:

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

That is the word of 17 USC Sec. 101 so you can't really argue with that definition. In the case of Apple software, that "material object" would be the disk, CD, DVD or whatever media it happens to be recorded on.

Here's where Apple's clever little plan backfires. By admitting that they are selling the media right there in their "license agreement", they are admitting that Apple end-users own copies of the software. For purposes of interpreting section 117, the end-user is the owner of the copy. This defeats the whole purpose of claiming that Apple is licensing the software, not selling it. I can't imagine a bigger blunder and if I were Steve Jobs I would immediately can whichever lawyer was responsible for adding that term to the "license agreement". Apple would be much better off if they removed that term ASAP. At least then they could still try to argue that they are only licensing software. As it stands right now, they have outright admitted that they are selling it.