It's easy when you are a distant second or third in the market.

Despite being a promo CD, it was still a sale. See the quote from Augusto in my top post.

When you play a CD you make a copy of it too. How does that affect whether the transaction where you acquire that CD counts as a sale or not? p.s. Making a copy to install software, to use it, or make a backup is not infringement, see 17 USC 117.

On the one hand the 9th Circuit that just mailing a disc to a DJ counts as a sale because it has been "placed into the stream of commerce" even though the publisher of the says it isn't. On the other hand they say a disc that's sold in a store in a box like anything else that is sold in stores doesn't count as a sale because the publisher says it isn't. What is the difference?

Try reading Bobbs-Merrill Co v. Straus which is the basis for 17 USC 109. Then you can read Universal Music Group v. Augusto.

OS X does not run from the install DVD, it needs to be copied onto a hard disk to run. This technicality is what allows the EULA to exist.

Wrong, see 17 USC 117 (a). The license agreement exists because the software publisher puts it there.

The court found that this is not a misuse of copyright, which means that it's a strong legal precedent saying that you can put any term in the EULA that you want.

No, the court found there was no misuse of copyright because the terms did not prevent Psystar from creating their own software or hardware. It doesn't mean they can put whatever they want in their license.

We con- clude that the district court correctly ruled that Apple had not engaged in copyright misuse. As we will explain, this is prin- cipally because its licensing agreement was intended to require the operating system to be used on the computer it was designed to operate, and it did not prevent others from developing their own computer or operating systems.

How about a book? Can I publish a book with a license printed on it that says "this book may not be resold for more than $1" ?

How about a CD? Can I print CD's that say "for promotional use - not for sale" then sue someone who sells them?

They have Augusto, where a CD that is mailed to DJs with a sticker that says "promotional use only, not for sale" still counts as a sale and the doctrine of first sale applies:

Notwithstanding its distinctive name, the doctrine applies not only when a copy is first sold, but when a copy is given away or title is otherwise transferred without the accouterments of a sale. See 4 Patry on Copyright 13:15; see also United States v. Atherton, 561 F.2d 747, 750 (9th Cir. 1977) (“The ‘sale’ embodied in the first sale concept is a term of art.”). “[O]nce the copyright owner places a copyrighted item in the stream of commerce . . . , he has exhausted his exclusive statutory right to control its distribution.” Quality King, 523 U.S. at 152. The seminal illustration of the princi- ple is found in Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 341 (1908), where a copyright owner unsuccessfully attempted to restrain the resale of a copyrighted book by including in it the following notice: “The price of this book at retail is $1 net. No dealer is licensed to sell it at a less price, and a sale at less price will be treated as an infringement of the copyright.” Id. The Court noted that the statutory grant to a copyright owner of the “sole right of vending” the work did not continue after the first sale of a given copy. Id. at 349-50.

Then they have Vernor/Psystar which says a box of software sold in a store like a book or CD is not actually a sale because Apple says it isn't and because Apple says there are restrictions on the ability to transfer or use it:

We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restric- tions.

I predict Vernor will fall if it makes it to the Supreme Court. It totally conflicts with Bobbs-Merrill vs. Strauss and 17 USC 109 and common sense. If it walks like a sale and talks like a sale then it is a sale.

Not that would help Psystar, they have other problems.

Here is a real world example where getting a key gets you nothing. Lets say you're targeting someone specific to get their secret cookie recipe or their confession and you've installed a wire tap on their net connection and you've been recording all of the traffic. The target has been chatting with their friends over some encrypted chat thing and you're sure they've been discussing the recipe/crime. So one day your goons stop the mark, steal their laptop which contains their private keys, and beat them with a hose until they give up the password that unlocks them. You type in the password right there and make sure it works. Maybe you just try a password cracker and get lucky.

Now you're golden, you can go back and decrypt all that old traffic and get the recipe, right? No, the private keys stored on the hard drive were only used to authenticate the exchange of randomly generated temporary keys used to do the actual encryption and do you no good at all.

Lets say you manage to steal the key material undetected and guess the passphrase protecting them. Now you can passively watch all of the traffic that goes by? No, you must do an active "man in the middle" attack.

Lets say you are very powerful and are capable of doing an active attack during the conversation. Now you're all set to get your marks secrets as soon as they discuss them again, right? No, because your mark is using voice or video chat, recognizes whom they are speaking with, and are comparing the hashes of the temporary keys being used to encrypt the conversation before talking about anything sensitive.

No because you can change the key, which is much easier than changing the cryptosystem. With a good source of entropy, I can generate large numbers good keys all day long. Good cryptosystems are much harder to come by, so the cryptosystem is designed to make changing keys easy. Cryptosystems are also designed to minimize the impact of a single key being discovered. Forward secrecy, for instance, where stealing a key might not get you anything at all.

Devs need to drink more of the DevQA cool-aid too.

Watch out for those links to suspects, they'll get you and everyone in your immediate vicinity killed without warning by a missile fired from a robotic aircraft controlled by foreigners hundreds of miles away. There is no point in building a case against someone, capturing them, and having a public trial where the evidence is subject to intense scrutiny and the outcome is determined by disinterested peers. That kind of thing is messy and time consuming, and there is no telling what the outcome might be. After all, 20-25% of the victims in this instance were linked to someone who is suspected of carrying out some horrible crime.

In other words, games don't make much money compared to virtual Skinner boxes that let you pay a modest sum to get your shot of dopamine if you get tired of pressing the lever.

It's true that the FBI grooms these people that would likely never be capable of doing anything on their own. However, it's not entrapment because a reasonable person would not accept explosives or buy a $6,000 plane and go along with the plan without extreme pressure.

How is that different from a contract that lets you use my computer? The contract is the only thing that gives you permission to use it and using it without permission is a crime, the computer fraud and abuse act.