Linked by Thom Holwerda on Sun 19th Feb 2006 16:26 UTC
Legal This week, one of the most-commented stories on OSNews was the story about how 'Maxxus' cracked/hacked (take your pick) the Intel version of Apple's OSX once again. This sparked a lively debate over whether we should encourage Maxxus, or condemn his actions. I made myself clear from the get-go: I condemn his actions. Note: This is the Sunday Eve Column of the week.
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v Yawn
by nicholas on Sun 19th Feb 2006 16:47 UTC
RE
by Kroc on Sun 19th Feb 2006 16:49 UTC
Kroc
Member since:
2005-11-10

Whilst it may be a contract you wish to abide to, what of all the people who never read it? If the EULA says that the person has to jump off of a cliff, should they be sued for not jumping, having not read the EULA?

I think contracts and EULAs are different things. A Contract you agree to long before you use the product. If Apple want to enforce EULA, you would have to sign it before you even bought the machine.

Reply Score: 5

RE
by enloop on Sun 19th Feb 2006 23:44 UTC in reply to "RE"
enloop Member since:
2005-11-13

Signatures are not always needed to bind a contract.

Willfully choosing to remain ignorant of the terms of the contract offered by the other party in the exchange won't do you much good when you're sued for breach of contract.

Reply Score: 2

RE
by Kroc on Mon 20th Feb 2006 00:27 UTC in reply to "RE"
Kroc Member since:
2005-11-10

You don't go into a car dealer, choose any car, then walk out with it after paying, with the dealer expecting you to sign the ownership paperwork in the glove compartment and mail it to them later on.

It's the same with finance plans; you sign a document before purchase so that the company has legal standings to claim that money from you. They would not let you walk out of the door with the product, expecting you to pay them because a sign that can only be read once the product is open and used says so.

Reply Score: 3

RE
by Deletomn on Mon 20th Feb 2006 16:09 UTC in reply to "RE"
Deletomn Member since:
2005-07-06

Kroc: Whilst it may be a contract you wish to abide to, what of all the people who never read it?

What about people who never read actual contracts? What about people who don't read the laws? What about people who aren't paying attention when they get into verbal contracts? Etc... Should they be bound by these things?

A common statement made about this is "ignorance is no excuse." In addition, with EULAs, these are often BOLD (not the typeface) and IN YOUR FACE, at the very beginning. So its obvious that they are there. That's more than can be said for a number of laws that bind us.

For example, when you go for a walk with your dog, do you see a big printed sign that tells you what you are allowed to do and not do while you are out on a walk? What about what dogs you are allowed to have or not have in the local area? Etc... Yet, if there is any laws about this in your local area, chances are you do not see such a sign. Yet you'll definitely be held to those laws if they exist.


Kroc: If the EULA says that the person has to jump off of a cliff, should they be sued for not jumping, having not read the EULA?

What if an actual contract says a person has to jump off a cliff? What if there is a law that says that? What if there's a verbal agreement to do so? Etc...


Kroc: A Contract you agree to long before you use the product.

Did you explicitly agree to be bound by said laws to walk your dog? Doubtful. Yet, they will bind you.

You are actually given more opportunity to read, accept, or reject many EULAs than you are to read, accept, or reject laws and yes sometimes even contracts. As a result using these things as a reason for them to not be legal doesn't seem valid to me in the least.

Reply Score: 1

RE
by archiesteel on Mon 20th Feb 2006 16:44 UTC in reply to "RE"
archiesteel Member since:
2005-07-02

You are actually given more opportunity to read, accept, or reject many EULAs than you are to read, accept, or reject laws and yes sometimes even contracts.

So there's a way to read a EULA without opening the shrink-wrapped package?

The point is moot, however, as it's not that EULAs are legally binding in the first place (and may be illegal in certain countries, such as the UK).

Reply Score: 1

RE
by Deletomn on Mon 20th Feb 2006 18:10 UTC in reply to "RE"
Deletomn Member since:
2005-07-06

archiesteel: So there's a way to read a EULA without opening the shrink-wrapped package?

No... But before you use the program for the first time the EULA comes up. In addition, a number of programs come in a "sealed" package along side the EULA. This provides you with an opportunity to read the EULA before opening the sealed package.

A copy of the EULA is also frequently always available and often times either sitting right in the manual or on your harddrive or what have you. Generally, it is right there practically in your face. The same can not be said for many laws. For example, laws that involve walking or ownership of dogs. You can rest assured, that there will generally not be a copy of said laws waiting for you on your doorstep, when you take your dog out for a walk. In addition verbal agreements between people often times don't have a recording which you can reference, and so on...

You actually have more chances to read, review, be reminded of, etc... EULAs than many other legally binding things. Simple as that.

In addition many EULAs basicly say the same thing. (As protagonist said) so you can guess the terms for many programs before you even look at the EULA.


archiesteel: The point is moot, however, as it's not that EULAs are legally binding in the first place

Uniform Computer Information Transactions Act

I haven't read it myself. But from my understanding, it makes EULAs valid in certain areas of the world.



(As a side note... I am not saying that I feel they should or shouldn't be legal. That I approve of them or disapprove. Nor am I saying that they are legal or illegal everywhere.)

Reply Score: 1

RE
by archiesteel on Mon 20th Feb 2006 20:05 UTC in reply to "RE"
archiesteel Member since:
2005-07-02

No... But before you use the program for the first time the EULA comes up. In addition, a number of programs come in a "sealed" package along side the EULA.

But if it doesn't, then what are you to do? And saying that other EULAs are "similar" has absolutely no legal meaning whatsoever. The only EULA that counts is the one for the software I just bought, and if I can't get a refund ater reading the EULA (which is usually the case with opened boxes) then there's good legal precedent to consider the EULA null and void.

I also don't subscribe to your "dog law" analogy, since we're talking about two very different things. The fact that a EULA might be more prevalent that signs saying "Dogs Forbidden" is irrelevant. (And, as a side note, you can often fight back - and nullify - parking tickets if the parking sign isn't clearly visible from where you parked.)

I haven't read it myself. But from my understanding, it makes EULAs valid in certain areas of the world.

Correction: it means that EULAs would be considered valid in certain American states. UCITA laws are american laws, and most state have not adopted them.

Reply Score: 1

RE
by Deletomn on Tue 21st Feb 2006 01:00 UTC in reply to "RE"
Deletomn Member since:
2005-07-06

archiesteel: The point is moot, however, as it's not that EULAs are legally binding in the first place

Deletomn: I haven't read it myself. But from my understanding, it makes EULAs valid in certain areas of the world.

archiesteel: Correction: it means that EULAs would be considered valid in certain American states. UCITA laws are american laws, and most state have not adopted them.

Yes, that is a most important distinction considering the states of the USA aren't in the world. What you stated is not a correction. What I stated was a correction. The fact is... In some places on the earth (I am not aware of how many) EULAs are legal despite what you say. I only need one example to prove that, which I provided.


archiesteel: And saying that other EULAs are "similar" has absolutely no legal meaning whatsoever.

My point is, you know what to expect to start with. You cannot say that for many laws which you are required to follow. Or contracts which you will be required to sign and follow. Or verbal agreements which you will be expected to follow. Etc... In other words... With most software packages, you already know what is expected of you, before you even pay for it. As long as the EULA does not deviate from the norm, you already should know the terms by heart. (And some do and some don't.)

As a result, claiming you "don't know what it says" isn't really much of an excuse for many programs. In fact, for some of them, it's down right nonsense.


archiesteel: The only EULA that counts is the one for the software I just bought, and if I can't get a refund ater reading the EULA (which is usually the case with opened boxes)

Yes and no. As I already mentioned in one other post. Some EULAs give you the right to return the software to the store or to the manufacturer within a certain time frame, if you do not agree to the EULA.

As for stores frequently not accepting returns. This is definitely a valid concern. However, you can thank pirates for this, since a number of them have a tendency to buy a program, copy it, and then return it. I am not saying that this justifies not accepting returns, but it does happen (I personally know people who do this when given the opportunity) and this is the excuse a number of stores use.

Also... Even if the store itself does not accept returns, you can contact the manufacturer and see if they will. (And a number of them are supposed to.)

Reply Score: 1

RE
by archiesteel on Tue 21st Feb 2006 03:42 UTC in reply to "RE"
archiesteel Member since:
2005-07-02

Yes, that is a most important distinction considering the states of the USA aren't in the world.

Usually when one says "in the world", one means "throughout the world," otherwise it's pretty meaningless. Anyway, that's the general opinion in the world, and by that I mean in front of my computer. :-)

The fact is... In some places on the earth (I am not aware of how many) EULAs are legal despite what you say.

All that I say is that in most places of the world, i.e. the vast majority of it, the legality of EULAs is dubious at best. Even in those few places where they are apparently backed by UCITA, they've never been tested in court, and I wouldn't bet money on them holding up.

The rest of your posts doesn't contain arguments, but restates that one should be expected to know what's in a EULA because there's so many of them, which I already indicated means absolutely nothing in a court of law. Nothing. It's not a real argument, it's a bad analogy between real laws (to which you're subject even if you don't know about them) and contracts (to which you can't be bound if you can't have the terms).

As for stores refusing to refund you, many of them will refuse to refund you if the package is opened and not defective. It has nothing to do with piracy, because the same rule apples to non-software items.

Reply Score: 1

RE
by Deletomn on Tue 21st Feb 2006 08:44 UTC in reply to "RE"
Deletomn Member since:
2005-07-06

archiesteel: Usually when one says "in the world", one means "throughout the world," otherwise it's pretty meaningless.

Indeed. If you just say "in the world". However, I EXPLICITLY stated "certain areas of the world". Usually when one says "certain areas" it is interpretted as subparts of the larger thing. Meaning in this discussion some "countries", some "states", some "cities", or what have you.

Or in other words it could have simply been my house and it would still be literally "certain areas", because you could consider each floor (or room or what have you) to be a different "area". But this would violate what people would generally expect, since this would encompass just me.


archiesteel: All that I say is that in most places of the world, i.e. the vast majority of it, the legality of EULAs is dubious at best.

I wouldn't know. I would have to trust you on that.

If I did more research, I could discover this one is not correct. However, I'm not going to "hunt down" the laws for other countries like Cuba, Iran, etc. (I don't mean to say that they're unimportant, but there would be alot to go through) Or individual states, terrorties, or even cities. (I'm not sure if there are any which are different, but I do know that cities pass their own laws, sometimes even in contradiction to the normal laws of that country or state or what have you, which makes things interesting.)

I will simply grant that what you stated is (hopefully) correct. Because I believe most examples indicate that EULAs are not valid and because I don't want them to be.


archiesteel: The rest of your posts doesn't contain arguments, but restates that one should be expected to know what's in a EULA because there's so many of them, which I already indicated means absolutely nothing in a court of law. Nothing. It's not a real argument, it's a bad analogy between real laws (to which you're subject even if you don't know about them) and contracts (to which you can't be bound if you can't have the terms).

They are more valid than what you state. My point is that simply not being aware of the terms because you did not read them or what have you does not make them not apply to you. PERIOD. That was all. And it's true. "I never read it, so it doesn't apply to me,but I signed it anyway" doesn't work with contracts either.

Other variables affect it and in combinaton potentially make them invalid. However, for that I mention two different things:

1) I have been "asked" to accept contracts at times when it would be rather... "Inconvenient"... To not sign and I didn't know at all what it would say up until that point. Yet, as far as I know those were all legally valid. I would call the issue of "not knowing the terms" (despite the fact that many say basicly the same thing) of the software and having to return the software should you not accept it to generally be more of an in inconvenience than anything else. So yes... I consider the two to basicly be the same thing.

2) There is also an area that I have no experience with whatsoever (and I admit this up front) that I think this MIGHT fall under. Contracts which are never verbalized or signed. (And yes, they exist, but I know nothing about them to speak of. I would have to talk to talk to a friend of mine who would know more about this.) However, as I said... I know nothing about those. So I can't elaborate, but perhaps someone else here knows something more? It would be interesting to know.


archiesteel: As for stores refusing to refund you, many of them will refuse to refund you if the package is opened and not defective. It has nothing to do with piracy, because the same rule apples to non-software items.

While what you say may be true for a number of stores. I have returned numerous items for various reasons. Including nondefective items at times.

I'd imagine some stores have their reasons for not accepting returns. But I do know the reason why a number of software stores don't. You don't have to like that reason or agree with it.

The key thing I think is to check the stores return policy. I am aware of one store I associate with being fairly harsh with its policy. And so, I wouldn't buy anything from them if there is any question as to whether I will keep the item or not.

However, that just moves to another area of essentially "buyer beware". Some stores don't guarantee you squat about an item. (Well... As you say they do allow defective returns. However, I do deal with one such store that I can think of right off hand.) Not even whether it is suitable for what you wanted to use it for. For such stores, not being able to use an item for some reason (including software) would not be an excuse to return it unless it is defective. These stores would have no impact on the discussion. Because it wouldn't be "unusual" to not be able to make use of something like you wanted to.

Reply Score: 1

RE
by Deletomn on Tue 21st Feb 2006 09:17 UTC in reply to "RE"
Deletomn Member since:
2005-07-06

Oh... I forgot to mention...

The discussion of not being able to return something to the store would also generally not have an impact on the following types of software (some were mentioned previously, but I mention them again to make sure nobody who replies happens to forget about it)

1) When the manufacturer will accept a return of the software should you not accept the EULA. (This does occur) Because you can return it.

2) Software which comes in inner sealed packages with the EULA. The reason being simply that the software was not opened. (Though the outer box was. Granted some stores may not accept a return of such items. But they're supposed to since it's not considered "open". This however, would be the most "iffy" one of the 4 I list here.) Because once again you can return it. (Or are supposed to be able to. As I said.)

3) Software which come in book format (not mentioned previously), these programs tend to have the EULA in the book, with the software somewhere inside (generally in back). Because you can actually read the EULA before you buy the software. Hence, the inability to return the software is no excuse.

4) Software which you were otherwise able to read the EULA before hand, expected to, and had it presented to you. (As is the case with a number of downloadable programs. This was also not mentioned previously.) Because you can actually read the EULA before you buy.



Anyway... My point being... That saying "I couldn't read it until I bought it and then I couldn't return it" applies to some EULAs, but not all. Hence, that argument wouldn't render all EULAs invalid, whether the argument itself is valid or not. Like it or not. It does not render them as a whole invalid. Just some them. Like with contracts and laws. Meaning some are valid and some are not. Just because some are, you can't say all of them are.

(I will also note that my post just prior to this one mentioned some other things in regards to this.)

Reply Score: 1

RE
by SterlingNorth on Tue 21st Feb 2006 02:25 UTC in reply to "RE"
SterlingNorth Member since:
2006-02-21

Generally, in the contract between people and the government, the people give the government the right to establish laws, basically through the contract that is negotiated between the people, called the constitution. At least that's how it works in democracies. Every other contract between people, whether it be verbal or written, for getting a job for example, both participants are up front with their demands and requests,thus you can agree of disagree to the contract before entering into it. Software is the only place where a contract is both set in stone, and largely hidden from view at the very time where it should be visible (which is before purchase). That is why software is different from government laws or other contracts.

Reply Score: 3

Not Valid....
by mlauzon on Sun 19th Feb 2006 16:59 UTC
mlauzon
Member since:
2005-07-25

In Canada, EULAs are not valid.

Reply Score: 1

RE: Not Valid....
by jdrake on Sun 19th Feb 2006 20:04 UTC in reply to "Not Valid...."
jdrake Member since:
2005-07-07

Where is the source material for this decision?

Reply Score: 0

RE[2]: Not Valid....
by mlauzon on Sun 19th Feb 2006 20:34 UTC in reply to "RE: Not Valid...."
mlauzon Member since:
2005-07-25

When software is purchased in Canada, the EULA does not apply as it comes under provincial or territorial laws where said software was purchased.

Reply Score: 3

v RE[3]: Not Valid....
by Innova on Sun 19th Feb 2006 21:37 UTC in reply to "RE[2]: Not Valid...."
RE[4]: Not Valid....
by mlauzon on Sun 19th Feb 2006 22:03 UTC in reply to "RE[3]: Not Valid...."
mlauzon Member since:
2005-07-25

BEGIN QUOTE:

I don't think that a EULA is enforcable under Canadian Law....

END QUOTE;

It is not, because EULAs are illegal in Canada...as someone mentioned earlier in some countries they are illegal; Canada being one of those countries. I am not going to go do the work for you, you want to find out about it then go look yourself as I am not -- and never will be -- your slave!

Reply Score: 1

RE[5]: Not Valid....
by Innova on Sun 19th Feb 2006 23:39 UTC in reply to "RE[4]: Not Valid...."
Innova Member since:
2005-09-30

[quote]
In Canada, EULAs are not valid.
[/quote]

Is your over reaching and quite large statement. I will not buy your argument unless you show me proof.

[quote]
I am not going to go do the work for you, you want to find out about it then go look yourself as I am not -- and never will be -- your slave!
[/quote]

If you want to make statements as if you are a self proclaimed expert on IP law and the use of EULA's, then you damn well better give some supporting evidence.

If you do not, then I do not, and never have to buy your argument without it.

Reply Score: 1

RE[6]: Not Valid....
by mlauzon on Sun 19th Feb 2006 23:46 UTC in reply to "RE[5]: Not Valid...."
mlauzon Member since:
2005-07-25

We're not speaking about IP law here, you dick, we're speaking about EULAs, yes similiar but not quite; as I stated before I do not do the leg work for anyone if you want to find out more about our CANADIAN LAWS -- which you're obviously an uptight anal american -- do the leg work yourself!

Reply Score: 0

Great!
by kensai on Sun 19th Feb 2006 17:02 UTC
kensai
Member since:
2005-12-27

Great for you... Still we are nobody to condemn his actions he can do as he please if he wants to crack OS X then good for him if you don't want to crack it then good for you. It is done for knowledge and fun. Code is meant to be broken by someone, if it weren't Maxxus it would have been someone else. We need to be a little bit more open minded about things like this. So Maxxus I don't condemn you nor I applaud you.

Reply Score: 4

RE: Great!
by AlexandreAM on Mon 20th Feb 2006 17:30 UTC in reply to "Great!"
AlexandreAM Member since:
2006-02-06

I don't think I can agree with the statement that "Code is meant to be broken by someone". And I sure do not agree with a +4 mod to something like that.

The writers of the software have their RIGHTS to decide how it can be used. You are NOT forced to buy their software, so dont say that "I bought it I can do whatever I want with it".

You can DO whatever you want with it. Whant to burn the disc ? fine. Delete all your copies ? Fine. but if you dont wanna use according to the rules that were there for you to see then return the software and get a refund (which is possible in most places I ever saw an EULA being applied).

I will probably be modded down because of this but... you know what...if such a statement of "My rights are bigger than everyones else" is modded up then being modded down is a compliment.

...
bah.

Reply Score: 1

RE[2]: Great!
by rhavyn on Mon 20th Feb 2006 19:31 UTC in reply to "RE: Great!"
rhavyn Member since:
2005-07-06

I don't think I can agree with the statement that "Code is meant to be broken by someone". And I sure do not agree with a +4 mod to something like that.

The writers of the software have their RIGHTS to decide how it can be used. You are NOT forced to buy their software, so dont say that "I bought it I can do whatever I want with it".


No, the writers of software do not have the right to tell people how it can be used. Just like the authors of a book don't have that right. What writers of software have is copyright law and patent law. EULAs are something software companies made up and are now attempting to make legitimate. But it's definitely not a right.

Furthermore, the "owners" of a copyrighted work don't even own that work. In the system the U.S. uses, the people "own" a copyrighted work. The original author, however, gets a limited time during which he gets exclusive rights to decide who can copy the work, modify the work and redistribute the work. As soon as that time limit is up, the author is no different than anyon else and the work enters the public domain. So stop sitting and listening to the *IAA and the BSA and learn exactly what copyright law is and how it works.

Reply Score: 1

RE[3]: Great!
by Viza on Mon 20th Feb 2006 20:24 UTC in reply to "RE[2]: Great!"
Viza Member since:
2006-02-20

/signed (for accuracy)

The license can't legally tell you what you can do with the software. You can burn it, trash the disks, throw it away, let it swish around in your toilet, install it on as many personal computers as you own, as long as you are the only user. Things get hazy if others benefit from your copy of the software.

The software company, can, however, refuse to give you updates if you don't comply with the agreement. However, they can't pursue legal action unless you violate copyright laws. EULA's are mostly posturing and an attempt to control your activities, that's all it really is legally too.

If you don't make copies and give them to anyone, you are within your rights of the law. I can throw that agreement away. If I don't sign it, and choose not to abide by it, there's no recourse for them to take, other than the above mentioned sanctions.

Just don't violate copyright and everything will be OK, I promise 8) As long as the use is "Fair and Reasonable" there isn't a court in the land that will convict you of EULA violations LOL.

I challenge any of you to find a case where Microsoft was able to make someone uninstall windows for violating the EULA, or because the user didn't "own" the software, excepting copyright violations.

They can sue you if you put an ISO and license code up for download, but they can't do squat without that copyright violation.

They could potentially lock you out of your software with a "control feature" in the software. They'd lose a lot of honest paying customers that way tho... when it went horribly wrong.

-Viza

Reply Score: 2

RE[3]: Great!
by AlexandreAM on Tue 21st Feb 2006 16:59 UTC in reply to "RE[2]: Great!"
AlexandreAM Member since:
2006-02-06

I dont know about the legallity of a EULA or Copyright Law, and you are right on claiming that (I am no lawyer). But I am not talking about "Copyright law".

I just think that if there is an agreement upon a certain product that you have to accept in order to use it, and if you can return the software for refund if you dont agree with it, then you should just use it according to the agreement or not use it at all.

And I still dont see how can anyone (specially if it is one inside computer software market) agree that "Code is meant to be broken". It just doesnt sound fair use to me.

But you know... opinions diverge...

Reply Score: 1

bornagainenguin
Member since:
2005-08-07

...Given how many times in the past (most recent being the infamous SONY root kit) we've seen the Corporates refuse to abide by these 'contracts' I see no reason to respect the EULA of anything these days. Especially with the way these 'contracts' have been written up, used and enforced regarding software and hardware these days. Its fine to have the Corporates call something a contract when it serves them, but watch how quickly they'll attempt to sidestep their obligations in the very text of the EULA itself! Not to mention the 'phishing' used by these types of things. Am I truly the only one who recalls the way the SONY root kit would install itself even if you declined the EULA?

Sorry Thom, but a contract is a two way street. I'll start treating the EULA as a serious 'contract' between myself and a Corporate entity as soon as these Corporate entities start taking responsibility for the things they selllicense.

--bornagainpenguin

Reply Score: 5

evangs Member since:
2005-07-07

I see your point. SONY fails to honor whatever contracts it has with it's users, therefore it is fair game to ignore Apple's EULA. Does that make any sense?

Reply Score: 1

bornagainenguin Member since:
2005-08-07

I see your point. SONY fails to honor whatever contracts it has with it's users, therefore it is fair game to ignore Apple's EULA. Does that make any sense? --evangs

Try actually reading what I said:

...Given how many times in the past (most recent being the infamous SONY root kit) we've seen the Corporates refuse to abide by these 'contracts' I see no reason to respect the EULA of anything these days. --bornagainenguin (emphasis added)

The SONY case is just another event in a long string of events where Corporates have made it clear that they only invoke the mystical EULA contracts as suits them and do not themselves consider it valid, thus the way the SONY root kit installed itself on computers even when the end user told it 'NO' making it clear that as far as our Corporate masters are concerned the EULA is not in their own eyes a valid contract.

My comment had to do with denying the validity of any EULA--Apple's, Microsoft's, anyone's. If the EULA is intended to be the evolution of the contract in electronic form it needs more work and more evolving before it can be considered a fair and reasonable replacement. As it stands now modern EULA are the equivalent to a phishing attack or fraud. Like those 'checks' you would see some people falling for that were actually contracts, people would cash the 'checks' only to discover some time down the road that they now owed a massive debt in interest on the loan they had just bought.

--bornagainpenguin (who will continue to point out the EULA as it now stands is a joke)

Reply Score: 1

Legality of EULAs
by protagonist on Sun 19th Feb 2006 17:06 UTC
protagonist
Member since:
2005-07-06

I pretty much agree with you on violating EULA's. That being said, I will admit that there are circumstances, which I won't go into, under which I would have no compunction about doing so. Until they start writing these things in plain and simple language that people can understand they are going to have problems with people routinely violating them. And until they start accepting responsibility for the software, EULA's will continue to be nothing but a joke.

What the gist of most EULA's boil down to is: We accept no responsibility what so ever for our software. Use it at your own risk. But don't you dare do anything we don't like with it. And they wonder why people ignore the EULA...

Reply Score: 5

RE: Legality of EULAs
by rattaro on Sun 19th Feb 2006 18:21 UTC in reply to " Legality of EULAs"
rattaro Member since:
2005-08-22

>Until they start writing these things in plain and simple language that people can understand they are going to have problems with people routinely violating them.

But that's the point. EULA's are to protect the corporation, not the user. If the language is too simple, the corporation loses some control that they can exert. i.e. it will benefit the user more and the corporation less. That's why the tax code is so complicated. You can control other people easier when the laws are not that easy to understand. EULA's are intentionally unclear. Sure, some people will violate them, but get enough people scared with threat of lawsuits, and they'll get in line.

As to my opinion about the topic, I vote condem. If you want to be free to hack, use free software. If you want to play with proprietary, then that's ok, but play by their rules, and don't expect freedom. Play with fire all you want, but don't be surprised if you get burned.

Reply Score: 2

EULA Legal Notes
by binarycrusader on Sun 19th Feb 2006 17:14 UTC
binarycrusader
Member since:
2005-07-06

Some interesting commentary about EULA validity in the USA:

http://linuxjournal.com/article/5628

This one is especially interesting and includes notes about several legal cases regarding enforceability of EULAs in the USA:

http://en.wikipedia.org/wiki/Eula

Commentary about EULA validity in the UK:

http://law.web-tomorrow.com/twiki/bin/view/Main/ShrinkWrapLicenceAg...

Reply Score: 1

Just one thing
by _LH_ on Sun 19th Feb 2006 17:16 UTC
_LH_
Member since:
2005-07-20

A few years ago the Supreme Court of Finland decided that EULAs don't apply in Finland because by definition individuals don't license the software but buy it and thus software is only protected by general copyright. Of course this doesn't apply to corporations who license the software in bundles of tens or hundreds of licenses.

More info: http://www.finlex.fi/fi/oikeus/kko/kko/2003/20030088?search%5Bt... (in Finnish)

Edited 2006-02-19 17:23

Reply Score: 3

RE: Just one thing
by jmansion on Mon 20th Feb 2006 16:07 UTC in reply to "Just one thing"
jmansion Member since:
2006-02-20

>> A few years ago the Supreme Court of Finland
>> decided that EULAs don't apply in Finland
>> because by definition individuals don't
>> license the software but buy it

So - if an EULA is invalid, how can (say) GPL be valid?

Isn't a 'license agreement' just a 'license'?

Not that I'm bothered about Finland, actually, and I have an incling of the differences between licensing and contracts, but if we think that the usage limitations in e.g. GPL are enforcable, why would an EULA be different?

James

Reply Score: 1

RE[2]: Just one thing
by archiesteel on Mon 20th Feb 2006 16:37 UTC in reply to "RE: Just one thing"
archiesteel Member since:
2005-07-02

So - if an EULA is invalid, how can (say) GPL be valid?

Because they're not the same at all.

Isn't a 'license agreement' just a 'license'?

No it isn't.

This had been discussed already in the thread. You're welcome to offer counter-arguments.

but if we think that the usage limitations in e.g. GPL are enforcable

The GPL doesn't impose limitations on use, it grants additional rights to copy, modify and redistribute. That's why it's legal, and the EULAs probably aren't.

I'm getting tired of repeating this...

Reply Score: 1

mini-me
Member since:
2005-07-06

I know this is a bit silly, but what constitutes an apple branded computer? My personal computer is a 15" Apple Powerbook. The only thing that distinguishes it from other computers in terms of brand is the bright apple logo on the cover (I know that the cool factor design is another thing - but this is for geeks like us)

So what is I own a Mac, and I have one of those stickers that came with it? Now what if I go to a Dell or HP box, REMOVE the dell/hp logo and stick on that Apple sticker? Does this constitute an apple branded computer?

I don't know the answer - just playing devil's advocate.

Reply Score: 0

Dark_Knight Member since:
2005-07-10

What consititutes an Apple branded computer is one sold directly by Apple or through their authorized resellers with the Apple logo. You're correct that with the current Mactel systems being sold there is little difference between them and what competitors such as Dell and HP sell customers. After all while the shell may look different the guts inside are the same, with the exception of Apple using EFI instead of a software BIOS. Their marketing is what I call a monopoly or at least unfair business practice as they intentionally try to force consumers to purchases systems only from Apple, block vendors such as Dell from installing OSX on their customers systems and try to stop the majority of their software including OSX from being installed on systems not sold by Apple. I don't know how it is in the USA but here in Canada OSX can be purchased in a retail box and nothing on it indicates it's strictly for an OSX upgrade. Their EULA as it is written now would not stand up in a court of law, at least here anyway.

On a related note when I was shopping at Futureshop the other day I noticed that there were a lot of shoppers asking questions regarding non-Apple systems. The Apple section while visible had people just passing buy. While Apple is slowly opening more stores it's a realization that their sales are clearly based on the iPod and not so much on their computer offerings. Once consumers get passed all the hype comments and marketing tactics and people start asking serious questions about flexibility, TCO, etc Apple becomes less attractive.

Reply Score: 0

Archangel Member since:
2005-07-23

You know I think BMW are a friggin monopoly. The other day I went in one of their shops and wanted to buy a motor, so I could put it in my supercool CitroŽn 2CV and they just told me to stuff it.

Man, I should be able to buy a motor from BMW so I can put it in any car I want and they should also support that. What a mean and illegal business these guys are running trying to force you to buy their cars and their motors bundled together.

I wouldn't be surprised to find that someone, somewhere has actually put a BMW engine in a 2CV. But BMW doesn't sue people for doing that - and wouldn't it be ridiculous if they did sue you for putting your engine into another car...

Reply Score: 2

Come hither, blog?
by Get a Life on Sun 19th Feb 2006 17:52 UTC
Get a Life
Member since:
2006-01-01

There is no way for people here to force their opinions regarding ethics down anyone else's throat. Well that isn't strictly true, since the staff could hypothetically censor others at their discretion, but since this is not the case I am reticent to even mention it. Rather you chose to convey your opinion in a socially inappropriate manner while attributing illegality to someone's behavior, which is why you obtained the response that you did.

Reply Score: 0

RE: Come hither, blog?
by Thom_Holwerda on Sun 19th Feb 2006 17:58 UTC in reply to "Come hither, blog?"
Thom_Holwerda Member since:
2005-06-29

Rather you chose to convey your opinion in a socially inappropriate manner while attributing illegality to someone's behavior, which is why you obtained the response that you did.

Didn't I just state I was wrong? That I used the wrong words? I did not even mention anyone's response in the column; specifically because most of the comments politely corrected me.

Well that isn't strictly true, since the staff could hypothetically censor others at their discretion, but since this is not the case I am reticent to even mention it.

Heh, yeah, we don't moderate at all anymore. The moderation system + no anon. posting basically eliminated the nescesary evil of us removing comments (and of course the crappy work it implies, don't forget that, it wasn't fun, judging 100s of comments on whether or not they were against our rules). I rarely even vote comments up or down-- and on my own articles, I vowed not to do it in any way (same goes for Eugenia and the rest of the staff).

And you know, if we really were to censor, we wouldn't have posted the story on Maxxus at all ;) .

Edited 2006-02-19 17:59

Reply Score: 5

RE[2]: Come hither, blog?
by Get a Life on Sun 19th Feb 2006 18:02 UTC in reply to "RE: Come hither, blog?"
Get a Life Member since:
2006-01-01

It's not a matter of making you admit that you're wrong, but rather a statement that no one is making you think a certain way. They were just reacting because of the way that you chose to express yourself. (Almost?) everyone does that sort of thing from time to time. It's not a big deal.

Reply Score: 1

RE[2]: Come hither, blog?
by bornagainenguin on Mon 20th Feb 2006 00:53 UTC in reply to "RE: Come hither, blog?"
bornagainenguin Member since:
2005-08-07

It is censorship when you make yourself exempt from the moderation system you yourself claim works so well...


--bornagainpenguin

Reply Score: 3

RE[3]: Come hither, blog?
by Get a Life on Mon 20th Feb 2006 11:27 UTC in reply to "RE[2]: Come hither, blog?"
Get a Life Member since:
2006-01-01

It's not censorship, it's inequity. Not only are his posts at 5 automatically, not subject to moderation, and not subject to the rules governing the conduct of others, but he can also use the front page to espouse his personal beliefs while you (potentially) cannot. That isn't censorship, but rather editorial power.

Reply Score: 1

RE[4]: Come hither, blog?
by Thom_Holwerda on Mon 20th Feb 2006 11:38 UTC in reply to "RE[3]: Come hither, blog?"
Thom_Holwerda Member since:
2005-06-29

Not only are his posts at 5 automatically, not subject to moderation, and not subject to the rules governing the conduct of others

We went over this a million times already... The problem is that there are enough people who would moderate the staff down just because we are the staff... To illustrate, we had one guy signing up well over 20 accounts in order to use all those modpoints (when we still gave modpoints to new users immediatly) to influence the outcome fo discussions. Luckily, the guy was someone who did the same a few months earlier, so we picked him out pretty easily.

I would love to be subject to moderation too, but a small group of people, like the one mentioned above (I won't use names) makes that simply impossible. And using a seperate account is too much work, because us admins can only log in and out via the OSNews.com admin back-end. I have a life to run, so I have no time for that.

but he can also use the front page to espouse his personal beliefs while you (potentially) cannot. That isn't censorship, but rather editorial power.

We accept submissions from our readers too, you know. Instead of talking, why don't you put your money where your mouth is and write an answer to this article? Or you can just use the comment's section-- do you write to newspapers and TV networks too each time you disagree with an anchorman/woman or jounralist?

And yes, obviously I have editorial power. You don't wanna know what kind of crap gets submitted to OSNews every day. If OSNews did not have editors, we'd better rename OSNews to itunesipodantiwindowsproappleprognunews.com. Kinda like digg.com, indeed ;) .

Reply Score: 5

RE[5]: Come hither, blog?
by Get a Life on Mon 20th Feb 2006 12:38 UTC in reply to "RE[4]: Come hither, blog?"
Get a Life Member since:
2006-01-01

My comment was a statement of facts. There is no hidden meaning encoded within the words I chose, which seems to be the assumption in the manner in which you respond to them. I don't personally care what you do with this site. You can stick goatse.cx links in my comments for all I care. You can have a special score of 10 that applies only to you and makes your posts 5x as large, bolded, and bright green while appearing first in every story for all I care. But you are not equal with the lowly poster mistaking such inequity with censorship. By virtue of your job, while you could be more equal, you will never be equal to him.

The problem is that there are enough people who would moderate the staff down just because we are the staff...

Ban them. Undo their moderation. Strip them of moderation privileges forever. Unless you're saying that I can use all of my moderation points to mod down posts indescriminately without reprisal, this isn't a compelling rationale. And even if it were you could leave your commenting capacity to "5 forever, baby" to posts official in nature and let the moderation system take care of the rest. There are people that would mod me down simply for disagreeing with me. Consider my other post in this thread that was modded down to zero, despite not violating any rules that I can discern. We all face possible abuses of the moderation system.

We accept submissions from our readers too, you know.

Yes, I've seen them. That doesn't mean that you will necessarily publish Random Bob's Op-Ed "Why Steve Jobs is a Flaming Homosexual," does it?

Instead of talking, why don't you put your money where your mouth is and write an answer to this article?

If I were getting paid I might waste my time on writing a full article replying to your editorial about something as subjective as ethics. But I'm not so I'm not going to. I do not write well, and it would take considerable effort to meet my standards for a subject as riveting as the morality of drug use or the morality of pre-marital sexual intercourse.

Kinda like digg.com, indeed ;) .

Digg introduced me to new levels of stupidity on the Internet. I think we can skip having another digg.com.

Reply Score: 1

RE[6]: Come hither, blog?
by Thom_Holwerda on Mon 20th Feb 2006 12:49 UTC in reply to "RE[5]: Come hither, blog?"
Thom_Holwerda Member since:
2005-06-29

this isn't a compelling rationale.

But oh it is. It would bring a lot of people out of the woodwork who otherwise would be fairly law-abiding readers. It would increase the amount of abuse. And since we do all this on a voluntary basis, aside from our jobs, studies, etc., we don't have the time to handle that extra abuse.

Yes, I've seen them. That doesn't mean that you will necessarily publish Random Bob's Op-Ed "Why Steve Jobs is a Flaming Homosexual," does it?

No. But if someone writes an answer to my article explaining why he or she disagrees with me, it will be published. Same goes for any normal article.

If I were getting paid I might waste my time on writing a full article replying to your editorial about something as subjective as ethics.

The time you spent making comments you could have written 3 articles ;) .

Digg introduced me to new levels of stupidity on the Internet. I think we can skip having another digg.com.

Hence OSNews is a traditional edited news source. At least we agree on something.

Reply Score: 5

RE[7]: Come hither, blog?
by Get a Life on Mon 20th Feb 2006 13:01 UTC in reply to "RE[6]: Come hither, blog?"
Get a Life Member since:
2006-01-01

It would bring a lot of people out of the woodwork who otherwise would be fairly law-abiding readers.

Unless you have evidence supporting that, what you have is a convenient hypothesis you're using to rationalize your predetermined belief that your comments should be scored differently and exempt from moderation. Further even if your comments were justifiably exempt from moderation, is there any justification for their score? Would someone, if they were to peruse your comment history, find that your comments met a high standard of relevance?

The time you spent making comments you could have written 3 articles ;) .

Maybe if my article were to consist of, "You're wrong, because your opinion does not correspond with my system of ethics." That doesn't exactly meet an academic standard of argument. If you find it acceptable then by all means take that quoted piece of text and put it on the front page. I should love to see the comments that obtains.

Reply Score: 1

v OS X sold is upgarde version.
by shyouko on Sun 19th Feb 2006 17:52 UTC
RE: OS X sold is upgarde version.
by Dark_Knight on Sun 19th Feb 2006 18:36 UTC in reply to "OS X sold is upgarde version."
Dark_Knight Member since:
2005-07-10

shyouko,

Re: "So, you mean it's okay to install an upgrade version of Windows XP with owning a previous version?"

There's a difference. When companies such as Microsoft, Novell, etc release an "upgrade" version it doesn't contain everything in the full release version. After all it's an upgrade, not a full OS installation. The cost is also significantly lower than the full release version. The one currently sold by Apple for OSX Tiger is a full release version.

Re: "The point is that you have to buy an Apple branded computer to obtain a license to use OS X."

Not true. OSX is sold in retail outlets such as Bestbuy and Futureshop. Though the version in stores are currently selling left over stock for PPC due to still having PPC systems in stock. While Apple stores rushed to switch systems to Mactel third party vendors were not so enticed to do so. Once more third party vendors make the transition to Mactel then you'll see Apple releasing retail boxes of OSX for x86.

Re: "To legally run OS X on an x86 box without infringing copyright law (Not the EULA here), you at least have to buy an Apple branded computer to obtain the license. Get it?"

Actually if someone purchases a Mactel system from Apple that comes with an OSX installation disc and chooses to install it on their current systems not sold by Apple this is just a violation of Apple's EULA. Though doing so would void warrenty it's not breaking copyright laws. This will become less of an issue when as stated Apple releases updated retail boxes of OSX Tiger for x86 in stores.

Edited 2006-02-19 18:38

Reply Score: 1

shyouko Member since:
2005-12-31

Sorry, but it seems that you are not aware of the fact that all the "retail" boxes of OS X you can buy are actually upgrade version.

All upgrade version of Windows contains a full version of Windows plus a little program that checks if you have a previous Windows installed on the hard disk or you have any full version installation disc of Windows.

OS X doesn't have such check, because every Mac is sold with a copy of Mac OS. So, after all it's an upgrade, not a full OS installation. The cost is also significantly lower than the full release version. (Compare Mac OS X boxes with Windows XP Home Full version.)

And... Apple will never release Tiger for x86 in retail boxes, because every Intel Mac comes with Tiger already.

Reply Score: 2

rayiner Member since:
2005-07-06

Sorry, but it seems that you are not aware of the fact that all the "retail" boxes of OS X you can buy are actually upgrade version.

Where exactly does it say that on the box?

Reply Score: 2

Thom_Holwerda Member since:
2005-06-29

Where exactly does it say that on the box?

The box only says that when using this product, you are subject to the license agreement (contrary to what many people think, namely that opening the box subjects you to the license agreement).

But indeed, it says nowhere that it is an upgrade version (I have a German box, because I bought Tiger in Berlin).

Reply Score: 5

NeoX Member since:
2006-02-19

(contrary to what many people think, namely that opening the box subjects you to the license agreement).

Why would people think that? The outside right spine at the very bottom of the box states this:

"Important: Use of this product is subject to acceptance of the software license agreement(s) included in this package."

It says Use not "by opening the box". Actually Apple's EULA is like MS's or some other companies that I have actually read and if you do not accept the terms you are free to return the product.

From the first page of Apple's EULA included with the software:

"IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, YOU MAY RETURN THE APPLE SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND." (caps theirs)

Seems to me this implies that it would have to have been open for you to have read the EULA and not agree with it before you return it.

Regards,
NeoX

Reply Score: 1

NeoX Member since:
2006-02-19

Sorry, but it seems that you are not aware of the fact that all the "retail" boxes of OS X you can buy are actually upgrade version.

How do you figure this? You are not required to have a previous version of OS X to install or use the retail version of OS X. So if you are not required to have a previous version it is not an "upgrade" as such. Of course it is an upgrade in the feature and capability sense, but it is a full install. The last true upgrade they had was when they handed out the free 10.1 from 10.0 upgrade. All others have been full versions...

And... Apple will never release Tiger for x86 in retail boxes, because every Intel Mac comes with Tiger already.

You don't know this for sure either... Apple has released new versions of the same major OS before. For example when 10.4.3 or 10.4.4 came out they released new retail OSX tiger boxes including this as the version. If another major update comes out, they may very well release a new OS X retail box with both intel and ppc versions. Although, I do see this as highly unlikely. But saying "Apple will never" is saying that you make the decisions for Apple or no for a fact, and unless you are Steve's right hand man you do not.

Regards,
NeoX

Reply Score: 1

RE[2]: OS X sold is upgarde version.
by NeoX on Sun 19th Feb 2006 22:37 UTC in reply to "RE: OS X sold is upgarde version."
NeoX Member since:
2006-02-19

There's a difference. When companies such as Microsoft, Novell, etc release an "upgrade" version it doesn't contain everything in the full release version. After all it's an upgrade, not a full OS installation.

Actually this is incorrect. While they are "upgrades" they are upgrades in License and install only. You can boot your computer from the WindowsXP Home Edition Upgrade CD. Once you satisfy the upgrade portion, you can Format and install a fresh copy of Window's XP. Microsoft's upgrades have been like this since at least Windows 98.

While Apple does not sell upgrades to there OS any longer you have to have a Mac to install it. The only upgrades I recall were the ones for OS X 10.0 to 10.1. But I concur it is a full version, you do not have to have a previous version of OS X to install it as you would an upgrade to WinXP.

Regards,
Paul

Reply Score: 1

RE: OS X sold is upgarde version.
by archiesteel on Sun 19th Feb 2006 19:01 UTC in reply to "OS X sold is upgarde version."
archiesteel Member since:
2005-07-02

if you run OS X on a non-Apple branded computer and don't own an Intel Mac, you are infringing copyright law already.

Actually, no. The infringement is done by the person distributing the software, not by the person downloading it. So Maxxus didn't break the law, though the person who provided him with the Intel version of OS X did.

Reply Score: 2

shyouko Member since:
2005-12-31

So, you think you're not infringing copyright law if you downloaded and installed a copy of Windows off the net without buying a license from Microsoft?

Running any software without obtaining the require license is an infringe on copyright law already.

Are you aware that you are licensed to use Linux freely because Linux is licensed under the General Public License.

Edited 2006-02-19 19:21

Reply Score: 1

Morin Member since:
2005-12-31

> Running any software without obtaining the require
> license is an infringe on copyright law already.

Could you provide some references for this? I'm unfamiliar with copyright law and don't know how to get law texts (assuming you are referring to US law). I always thought that copyright law controls *copying* of works, not *running* them.

- Morin

Reply Score: 2

rhavyn Member since:
2005-07-06

Running any software without obtaining the require license is an infringe on copyright law already.

Are you aware that you are licensed to use Linux freely because Linux is licensed under the General Public License.


Not only are you wrong, but you didn't even read the GPL to see if it backs up your assertion. In fact, the GPL specifically says "[a]ctivities other than copying, distribution and modification are not covered by this License; they are outside its scope." So the GPL does not, in fact, give you the right to use Linux, it gives you the right to copy, distribute and modify it.

As a matter of fact, copyright law specifically allows you to make copies of necessary to run it. See 17 US 117 (http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000117...)

So, again, you DO NOT need a license to run software. EULAs are an after sale contract which attempts to restrict your usage of the software beyond what copyright by itself allows.

Reply Score: 3

Kokopelli Member since:
2005-07-06

It is pretty hard to run Linux without making a copy of it as per Title 17. Burning a CD from an ISO is copying, installing it onto a machine is copying. Therefore it is not completely without basis to say the the GPL is authorizing you to do an install of the operating system (copy or adaptation as necessary for utiliation). Without the install use is very difficult.

I am all for the x86 project but in this case Maxxus was not doing clean room engineering nor was he doing work that was promoting the use of the work as allowed by the copyright holder. Copyright does allow you certain freedoms in use, but it is highly questionable whether this falls under it. Arguing the legality in either direction is sophistry however. TToo many countries too many laws.

The current predominant use of a hacked version of OS X on x86 is to facilitate copyright violations and the installation of illegal copies. There are an EXTREME minority who might legally purchase a (upgrade) copy of OS X then use this copy to install on a non apple computer. This may be in violation of the EULA but as I have stated before on OS News, if you are not distributing it, then this I personally find reasonable.

When you purchase a Mac you purchase a license to use OS X on that Mac. If your Mac breaks and is thrown away, or if you completely wipe all traces of the OS from the Mac, then again morally I see no probelm installing it on a different machine. Legally it is questionable though. Further it is my firm belief that cases like this would constitute less than a tenth of a perecnt of the use. when people hold these arguments up as the reason I do not personally believe that is thier intent, based upon the historical lack of ethics when it comes to software copying.


I do not support the illegal copying of Windows, OS X, music, or movies, or any other copyrighted material. The creator has a right to see a return on his or her investment. On the other hand if people acted in a moderately responsible manner; kept copying to personal use only, and did not distribute or receive materials in violation of copyright, much of the arguing on the forums would be moot. Unfortunately we as a global society have shown an apalling lack of respect for the work of others.

It is the creator of the work who retains the right on how a work may or may not be distributed, within the limitations of the law in each country.

Can anyone here at this stage reasonably argue that they are not aware of the general terms of license for OSX? Would anyon care to argue that the workers on the OSx86 project are unaware of the terms?

No one is forcing you to buy the product if you do not like the terms and I find it unlikely that anyone tech savy enough to pull off the install is not aware of what the terms of the license for OS X are (in genreal if not in specific).

Reply Score: 1

archiesteel Member since:
2005-07-02

Burning a CD from an ISO is copying, installing it onto a machine is copying. Therefore it is not completely without basis to say the the GPL is authorizing you to do an install of the operating system (copy or adaptation as necessary for utiliation).

Copying is not redistributing. You are allowed to make copies of copyrighted work for personal use (such as backup purposes) under the doctrine of "fair use", which itself is part of Copyright law. You're trying to imply that installing software is tantamount to redistributing, but that's simply not the case.

It is the creator of the work who retains the right on how a work may or may not be distributed, within the limitations of the law in each country.

No one argues with that, however that is not what's as stake here. We're talking about installing a legally purchased copy of OS X on hardware you own. Apple claims that this is illegal, but there is very little evidence to support that claim.

The debate is not whether this is legal or not, it's whether this is ethical or not. I believe it is, because you have in fact already compensated Apple for the software when you bought it, and you should have the right to use the software as you see fit.

Reply Score: 3

rhavyn Member since:
2005-07-06

It is pretty hard to run Linux without making a copy of it as per Title 17. Burning a CD from an ISO is copying, installing it onto a machine is copying. Therefore it is not completely without basis to say the the GPL is authorizing you to do an install of the operating system (copy or adaptation as necessary for utiliation). Without the install use is very difficult.

The GPL isn't authorizing you to make a copy to install Linux, 17 USC 117 is. If you read it (or my post) you'd have seen that copies necessary to use the work are not infringing. Since copying Linux to a hard disk is necessary to use it, it is covered by 17 USC 117. If burning a copy of the ISO to CD is necessary to perform the installation it too would be covered by 17 USC 117. But that ignores the fact that you can just buy a CD from Red Hat or Mandriva or Ubuntu, etc. So, no, the GPL absolutely not what gives you the ability to install and use Linux, 17 US 117 is.

As for the rest of your post, there are two things. First, none of what you are talking about is "illegal." At most you are breaking the EULA, but that is a contract, there is nothing illegal about breaking a contract (unless the act which breaks the contract is illegal, but then the act is illegal, not the breaking of the contract). Second, when you purchase a Mac or OS X you are not purchasing a license, you are purchasing a copy of OS X. The EULA is an after sale contract which the software industry has forced onto us. That is the reason why EULA are of questionable enforceability. Software vendors have no special right to force a consumer into a one sided contract (yes, one sided, they give the consumer nothing which they don't already have by default with copyright law, but they restrict what you can do with the copy you purchased). Without a EULA you can do whatever you want with your copy of the software, just like you can do whatever you want with a book, except copy it. You can read a book, you can cut it up and reassemble it in a different order, you can draw on it, you can highlight passages. And with software you should be able to use it, modify it, study it, reverse engineer it, etc. Just not copy it.

Reply Score: 1

Kokopelli Member since:
2005-07-06

If you read my post and 117 you would see the act of installing is considered a form of copying in and of itself. All above board and legal and for that matter explicitly authorized by Title 17 and not part of the fair use clause.

Reverse engineering is covered as well and the methids Maxxus used are most certainly not considered legal by US caselaw. Look at the IBM case for an example of clean room engineering.

Hate to break it to you but if it is a legally binding contract (which it remains to be seen whether a EULA is) then you are breaking a law.

Reply Score: 1

rhavyn Member since:
2005-07-06

If you read my post and 117 you would see the act of installing is considered a form of copying in and of itself. All above board and legal and for that matter explicitly authorized by Title 17 and not part of the fair use clause.

Where did I say anything about fair use? Both of my posts were that 17 US 117 explicitly allows copying as it is necessary to use a software program and that, because of that, it is not the GPL which allows you to use Linux.

Reverse engineering is covered as well and the methids Maxxus used are most certainly not considered legal by US caselaw. Look at the IBM case for an example of clean room engineering.

Which case law is it which says that reverse engineering isn't legal under copyright law? Heck, "clean room engineering" is reverse engineering, it's just done in a manner which ensures there is no question of copying. By not building a wall between the people doing the reverse engineering and the people doing the implementation there could be a question of copyright infringement merely because the implementors saw the reverse engineered code. But you'd still need to prove that the implemented code actually does infringe.

Hate to break it to you but if it is a legally binding contract (which it remains to be seen whether a EULA is) then you are breaking a law.

No, you are not breaking a law, contracts are a civil issue not a criminal issue. But please, don't take my word for it, go ahead and look it up and show me where you find the felony or misdemeanor you will be charged under for breaking a contract.

Reply Score: 2

alcibiades Member since:
2005-10-12

"Hate to break it to you but if it is a legally binding contract (which it remains to be seen whether a EULA is) then you are breaking a law."

No, you are breaking a legally binding contract!

It is not the same thing. It may or may not involve breaking various laws, depending on what you have contracted to do and done.

But it is not the same thing.

Reply Score: 1

archiesteel Member since:
2005-07-02

So, you think you're not infringing copyright law if you downloaded and installed a copy of Windows off the net without buying a license from Microsoft?

Indeed. Copyright infringement took place, but the party liable for any damages incurred is the one distributing it, not the person downloading it.

Of course, if you run an illegal copy of a software and are found out, you will probably have to uninstall it, but there's really little else the copyright holder can do. You will have broken the EULA, but as we've already discussed it is not clear if that is illegal in the U.S. and the rest of the world.

A pirate is someone who distributes copyrighted material. If you download mp3s and share them, then you're a pirate.

Running any software without obtaining the require license is an infringe on copyright law already.

No it isn't. It's a break of EULA. That has nothing to do with copyright law.

Are you aware that you are licensed to use Linux freely because Linux is licensed under the General Public License.

Again, you're mistaken. The GPL isn't concerned with the use of the software, but about the conditions of its redistribution.

Some licenses do put restriction on use. There was a piece of free software - I can't remember which one - that had a license that said it could not be used for military purposes. However, even with this, the only thing that can happen if you are found out is that you can no longer continue to use it without complying to the license. You won't be prosecuted for copyright infringement.

You really should learn more about copyright law and the GPL.

Reply Score: 1

Article title
by thebluesgnr on Sun 19th Feb 2006 17:57 UTC
thebluesgnr
Member since:
2005-11-14

"Legality of EULAs: a Personal Issue"

I would agree with:

"Legality of EULAs: a Legal Issue"

Reply Score: 1

EULAs are silly
by mikesum32 on Sun 19th Feb 2006 18:13 UTC
mikesum32
Member since:
2005-10-22

Hardly anyone reads them. No one signs anything.

How would you feel of you bought a car, and inside this car was a EULA.

It said "by opening the car door you agree to abide by this contract"

Wait a minute. I had to open the door to read the contract. It's the same with shrinkwrap licences.

What if it said I couldn't drive over 40 m.p.h. and use the stereo at the same time due to safety concerns?

I'd tell 'em where to stick the EULA.

If I bought it, I'm going to do whatever I want with it. You have my money, I have your software.

Reply Score: 5

RE: EULAs are silly
by Thom_Holwerda on Sun 19th Feb 2006 18:17 UTC in reply to "EULAs are silly"
Thom_Holwerda Member since:
2005-06-29

You have my money, I have your software.

Wrong. You don't have their software. You have a license to use their software. Like with a rental house. You have the right to use it, but it's not yours.

Reply Score: 5

RE[2]: EULAs are silly
by Kroc on Sun 19th Feb 2006 18:32 UTC in reply to "RE: EULAs are silly"
Kroc Member since:
2005-11-10

"but it's not yours"

Maybe in America. Not everywhere.

Reply Score: 0

RE[3]: EULAs are silly
by Thom_Holwerda on Sun 19th Feb 2006 18:36 UTC in reply to "RE[2]: EULAs are silly"
Thom_Holwerda Member since:
2005-06-29

Maybe in America. Not everywhere.

I'm Dutch. But anyway, that is the whole point: it differs per country, and in most countries there is no jurisprudence to prove or disprove their legalness/illegalness.

Reply Score: 5

RE[2]: EULAs are silly
by Nicholas Blachford on Sun 19th Feb 2006 18:45 UTC in reply to "RE: EULAs are silly"
Nicholas Blachford Member since:
2005-07-06

You don't have their software. You have a license to use their software. Like with a rental house. You have the right to use it, but it's not yours.

If that's the case why do they protect software with copyright laws?

If I have a physical copy of XXX I purchased, I own that physical copy.

Reply Score: 1

RE[3]: EULAs are silly
by Innova on Sun 19th Feb 2006 23:43 UTC in reply to "RE[2]: EULAs are silly"
Innova Member since:
2005-09-30

You own the physical media, and the right to use the software stored on it.

This is the whole argument. The EULA and copyright generally states that you *do not* own the software.

Reply Score: 1

RE[4]: EULAs are silly
by archiesteel on Mon 20th Feb 2006 00:27 UTC in reply to "RE[3]: EULAs are silly"
archiesteel Member since:
2005-07-02

The EULA and copyright generally states that you *do not* own the software.

No, you own the copy of the content as well. You don't have rights to copy it and redistribute it however (that's what copyright is for).

Don't lump in EULAs and copyright together. The latter is a well-established law, while the former may not be enforceable, and may be illegal in certain countries.

Reply Score: 2

RE[2]: EULAs are silly
by Morin on Sun 19th Feb 2006 18:45 UTC in reply to "RE: EULAs are silly"
Morin Member since:
2005-12-31

> Wrong. You don't have their software. You have a
> license to use their software. Like with a rental
> house. You have the right to use it, but it's not
> yours.

If that was true (and to my knowledge, here in Germany it is true), it would be fine to me. However, in other countries the situation is more like "they have my money, and I have the right to accept the EULA or get nothing for it".

- Morin

Reply Score: 1

RE[3]: EULAs are silly
by Deletomn on Mon 20th Feb 2006 18:35 UTC in reply to "RE[2]: EULAs are silly"
Deletomn Member since:
2005-07-06

Morin: However, in other countries the situation is more like "they have my money, and I have the right to accept the EULA or get nothing for it".

I'm not sure about all countries or all programs. But there's not JUST "nasty stuff" in the EULAs, there are also things like.

"If you don't accept this EULA within 15 days, then you can return this software to the store from which it was purchased for a full refund."

And/or...

"If you don't accept this EULA within 15 days, then you can call our customer support and request return authorization and receive a full refund."

Or what have you.

While it's a waste of time to have to return it after you bought it. You aren't actually required to "accept the EULA or get nothing" for your money. Instead it amounts to... "Accept the EULA or waste your time and deal with frustration while having to figure out how to return this stupid thing."

Reply Score: 1

RE[2]: EULAs are silly
by alcibiades on Sun 19th Feb 2006 19:25 UTC in reply to "RE: EULAs are silly"
alcibiades Member since:
2005-10-12

"Wrong. You don't have their software. You have a license to use their software. Like with a rental house. You have the right to use it, but it's not yours."

No, Thom, this is not true. There is a difference between rental and purchase, and its not the name. It is who retains property rights. Things you will be held by a court to have bought, are ones where there is no term of the possession, it does not revert at the end of the term, there are no periodic payments, there is a legal right to expense the payment and specifically to amortize the equipment....

Its not a rental, any more than when you buy a book or the hardware its a rental. This is just mistaken.

How you feel about doing things the supplier doesn't want you to do is your affair, its your feelings. But legally and morally, I think its pretty black and white. In the UK, it may actually be unlawful for Apple to represent the agreement as valid. Clipped from recent slashdot posting where there is an animated debate in progress, the following purports to be a quote from Minsterial guidance: contracts are unenforceable when

"contrary to the requirement of good faith it causes a significant imbalance inthe parties' rights and obligations under the contract, to the detriment of consumers." Which the part about Apple labelled stuff only clearly does. In addition:

"Consumers cannot have their legal rights removed in sale of goods contracts. Furthermore, it can be an offence to mislead consumers about their legal rights. To do so could result in a criminal prosecution. For example, notices such as "We do not give refunds" are misleading and cannot be used. Enforcement is undertaken by local Trading Standards Departments."

I haven't checked the sources, but it agrees with my understanding. Its really pretty cut and dried. You can't impose the contract, and you can't pretend you have.

Reply Score: 5

RE[2]: EULAs are silly
by rayiner on Sun 19th Feb 2006 19:48 UTC in reply to "RE: EULAs are silly"
rayiner Member since:
2005-07-06

It's not any more like a rental house than it is like buying a piece of cheese. It is buying a copy of a piece of software, nothing more nothing less.

The distinction is important because of the ownership issue. Unlike a rental house, you really do own your copy of the software. You do not own the work, and are thus prevented from making additional copies of it, but you own your copy. It's not just a right to use.

Reply Score: 3

RE[3]: EULAs are silly
by alcibiades on Sun 19th Feb 2006 19:53 UTC in reply to "RE[2]: EULAs are silly"
alcibiades Member since:
2005-10-12

Yes, this is true. It is just like buying a copy of a book. You cannot copy and resell it, but you really have bought it, and you can read it in the bath if you want.

For it to be a lease, it would have to be for a specific period, and for it to revert to the owner at the end of the term.

Reply Score: 4

RE[2]: EULAs are silly
by cerbie on Sun 19th Feb 2006 22:22 UTC in reply to "RE: EULAs are silly"
cerbie Member since:
2006-01-02

You have the right to use it, but it's not yours."
You are incorrect. It is mine, but I do not have the right to distribute it, or to determine how it may be copied and distributed, beyond backup copies for myself. I also do not have the right to distribute derivatives of it, or to specifically enable others to do so.

Reply Score: 2

RE[3]: EULAs are silly
by cerbie on Sun 19th Feb 2006 22:24 UTC in reply to "RE[2]: EULAs are silly"
cerbie Member since:
2006-01-02

I wish I could edit that...small changes after the preview and it's all bold...

Reply Score: 1

RE[2]: EULAs are silly
by falemagn on Tue 21st Feb 2006 12:13 UTC in reply to "RE: EULAs are silly"
falemagn Member since:
2005-07-06

@Thom Holwerda
> Wrong. You don't have their software. You have a
> license to use their software. Like with a rental
> house. You have the right to use it, but it's not
> yours.

What defines "wrong" is what the majority of people thinks, not what an EULA says.

Legally, it may be the case I'm licensing the sw, however, I'm buying the media it comes with, and the bits stored on it. There's a gray line here, and whether or not it's "wrong" to modify those bits I bought is bound to subjective judgement.

If the majority of people think its "right" to do so, laws need to adapt, not the other way around.

Reply Score: 1

Conflicts with laws.
by Nicholas Blachford on Sun 19th Feb 2006 18:36 UTC
Nicholas Blachford
Member since:
2005-07-06

If the clause was legally enforceable do you think Apple would allow MacOnLinux to exist?

Apple have never shied away from using courts, yet it appears they have never even attempted to stop anyone running their OS on other hardware.

IANAL but the clause you're referring to seems to come into conflict with consumer laws in many countries and the laws overrule.

I don't know which countries in particular but The UK, USA, Russia and Germany have all been mentioned, I suspect this also applies in many other countries.

I wouldn't automatically an EULA of any sort as legally enforcable, they are full of all sorts of dubious get out clauses which have never been tested in court. In fact it's not even clear it EULAs are legally enforceable at all.

Manufacturers cannot ship products without a warranty and cannot stop you selling goods second hand. What makes you think software companies are immune to these laws?

Reply Score: 2

RE: Conflicts with laws.
by evangs on Sun 19th Feb 2006 18:49 UTC in reply to "Conflicts with laws."
evangs Member since:
2005-07-07

If the clause was legally enforceable do you think Apple would allow MacOnLinux to exist?

I take it you've never used MacOnLinux as it runs only on Macs, and it requires you to have a Mac OS X installation on your computer. If you're running MacOnLinux, you aren't breaking the EULA since you are still running an Apple labeled computer, and you're using the copy of Mac OS X that came with your system.

Reply Score: 1

RE[2]: Conflicts with laws.
by Kroc on Sun 19th Feb 2006 19:02 UTC in reply to "RE: Conflicts with laws."
Kroc Member since:
2005-11-10

Ah, but you are running two copies of the same software at the same time, which breaks law ;)

Reply Score: 1

RE[2]: Conflicts with laws.
by Nicholas Blachford on Sun 19th Feb 2006 19:06 UTC in reply to "RE: Conflicts with laws."
Nicholas Blachford Member since:
2005-07-06

I take it you've never used MacOnLinux as it runs only on Macs

MacOnLinux runs on non-Apple hardware as well.

Genesi even demoed it at CES in 2003, Apple people did visit the stand but I don't believe they made any attempt to stop them showing it - I was working for them at the time so I would have heard about it.

Edited 2006-02-19 19:08

Reply Score: 3

RE[2]: Conflicts with laws.
by Get a Life on Sun 19th Feb 2006 19:10 UTC in reply to "RE: Conflicts with laws."
Get a Life Member since:
2006-01-01

MOL works on PowerPCs in general and SheepShaver worked on the BeBox.

Reply Score: 1

RE[3]: EULAs are silly
by mikesum32 on Sun 19th Feb 2006 18:49 UTC
mikesum32
Member since:
2005-10-22

I buy music, and I can sell it used. I buy movies and can sell them used.

I don't sell music I like, I put on my computer and listen while I work. If I had an ipod I'd listen on that.

I do not rent music. I do rent movies. I go to a video rental store.

I watch DVDs on my computer or on my TV.

I do not go to a software rental store. I do not rent software I buy it, and use it how, when, and where I want.

If I wanted to borrow software I'd go to the library.

I won't be hampered by artificial constraints. Big brother will not tell me what to do with my software I payed for. I didn't sign anything, I didn't talk to their lawyers. I went to a store and bought software just like I'd buy a car or a gallon of milk. The grocery store doesn't tell me what to do with my milk.

Reply Score: 5

Eternal strife...
by rancor on Sun 19th Feb 2006 19:02 UTC
rancor
Member since:
2006-01-18

The action to hack Mac OS X to get to run on non-Apple hardware is absolutely prohibied by Apple's EULA. In countries where EULAs mean something then it is also illegal. Apple also went further claiming DMCA violations, which are almost certainly true.

When you use software from the likes of Apple, Microsoft, Adobe, etc., at least in the US you are compelled to accept the EULA. Try using software that ensures your rights instead of constantly trampling on them.

That said: Apple and others are fully aware that code is code and can be made to be used in ways they did not intend. But this "mis-use" will happen. In this US this will continue to be illegeal until:

A) Apple and others grok the fact that they simply need to stop being stupid.

B) The legal environment changes by grass-roots protesting the one-side-only dictatorship imposed by these companies.

C) They are hurt financially enough to mend their ways. Just look at Sun for examples.

Until then we will have to live through the DRM/DMCA/TCG wars that are being prepared to be unleashed on our sorry asses. The lock-in vendors are preparing to nail your feet to the deck, mark my words. Your choices are to continue to sail their ships, bloody feet and all, or to resist. Hurt them. Stop playing their games. Get out of their reach. Move to free software.

Change is coming. The fight is only starting...

Edited 2006-02-19 19:03

Reply Score: 4

l3v1
Member since:
2005-07-06

Just don't try to force your personal preference down someone else's throat.

Dear Thom, maybe that's an advice you also should follow. Also, if you'd think twice before posting junk, then maybe you wouldn't have to explain your words later since your idiotic reader crowd misunderstood you.

Edited 2006-02-19 19:03

Reply Score: 4

Thom_Holwerda Member since:
2005-06-29

Dear Thom, maybe that's an adive you also should follow.

Did I exclude myself from that advice? Did I say I was perfect?

Also, if you'd think twice before posting junk

The comment wasn't junk. I used the wrong words, but it wasn't junk-- at least not more junk than yer average comment.

your idiotic reader crowd misunderstood you.

You just called yourself an idiot ;) .

Reply Score: 5

had this been about anything....
by jtrapp on Sun 19th Feb 2006 19:55 UTC
jtrapp
Member since:
2005-07-06

except Apple, you would have gotten a better discussion.

Almost no tech savvy individual supports the DMCA, but in the Maxxus thread the Apple fanboys came out in full support of the DMCA. Something that wouldn't have happened had we been discussing any other company.

Personally, I decide my own morality--rarely do I take the law into consideration. There is little confluence between what is right and wrong and what is legal or illegal.

Go to the store and "buy" software. It has a little note on it saying you must agree to the included EULA to use the software. You must open the box and load the disc to read the EULA. Then the store won't accept open software in exchange for your money back. No, this sort of EULA is not binding on me.

A contract is negotiated, a EULA is imposed.

Reply Score: 5

SterlingNorth Member since:
2006-02-21

"A contract is negotiated, a EULA is imposed."

This is a very good point that should be reiterated. An EULA dresses itself in all the trappings of a contract, but without going though all the steps neccessiary to be a fair one. No other contract on earth between entities has ever been entered into without negotionations by both sides. Only with software does the contract makers, not only impose it on you without discussion or debate, but they hide it from you, and in many cases penalizes you and awards them if you don't accept it. (By making it impossible in most cases to get a refund for opening the software, just to read the EULA contract.)
That is close to coercion, rather than negotiation...

Reply Score: 2

Deletomn Member since:
2005-07-06

SterlingNorth: No other contract on earth between entities has ever been entered into without negotionations by both sides.

I suppose that's true... If you call getting to "talk" to someone about the contract "negotiations". Generally... When I've been expected to sign things, (like contracts) I haven't had much of a choice. If I wanted to "negotiate", then I could "negotiate" my way right out the door and to someone else.

(NOTE: I'm not saying that negotiations never happen. I've certainly been able to negotiate at times. But they don't always happen despite what you claim and sometimes people don't have much of a choice.)

Reply Score: 1

Hypothetical
by nicholas on Sun 19th Feb 2006 20:04 UTC
nicholas
Member since:
2005-07-07

Say in 13 months time by iMac Core Due breaks. It is not covered by warranty anymore and I cannot afford to have it repaired.

I own a licence of Mac OSX 10.4.

Thanks to Maxxus I can install this on a P4 machine that I just happen to have lying around doing nothing.

Maxxus should be praised for what he has done.

Reply Score: 2

RE: Hypothetical
by somebody on Sun 19th Feb 2006 20:22 UTC in reply to "Hypothetical"
somebody Member since:
2005-07-07

Say in 13 months time by iMac Core Due breaks. It is not covered by warranty anymore and I cannot afford to have it repaired.

I own a licence of Mac OSX 10.4.


Nope, OEM version of OS went to computer heaven with your computer. Leaving you legal upgrade which you unfortunatelly can't use legaly. But you still have option to go to Apple service and pay for the repair costs. Nobody took this repair option from you. Ok, maybe you because you refuse to pay the costs, but that is your problem, isn't it?

Well, your 10.4 is either upgrade or OEM, but never retail which could be separated from Apple machine. MacOS license and resale agreement is the same as MS OEM agreement.

Reply Score: 1

RE[2]: Hypothetical
by archiesteel on Sun 19th Feb 2006 20:54 UTC in reply to "RE: Hypothetical"
archiesteel Member since:
2005-07-02

Nope, OEM version of OS went to computer heaven with your computer. Leaving you legal upgrade which you unfortunatelly can't use legaly.[i]

Correction: that you can't use [i]without breaking the EULA
. As we've discussed already, the legality of EULAs is highly questionable. It's really more of a question of ethics, and in the example given (Intel Mac dying and copy of OSX installed on P4) the ethics are clearly in favor of the individual.

Reply Score: 2

RE[2]: Hypothetical
by archiesteel on Sun 19th Feb 2006 21:04 UTC in reply to "RE: Hypothetical"
archiesteel Member since:
2005-07-02

Well, your 10.4 is either upgrade or OEM, but never retail which could be separated from Apple machine.

This doesn't make any sense. I can go and buy a OS X upgrade without owning an Apple machine, clearly separating the two (since I can legally own the OS X upgrade without having to own an Apple computer).

By installing that copy of OS X on a non-Apple PC, I am breaking the EULA. Technically, Apple could ask me to stop running it. If I didn't, then this would need to go to court, something which might expose the inherent weaknesses in those EULAs (some of which may be illegal in certain countries). This means that Apple would probably need to change those EULAs - not a thing they necessarily want to do.

Reply Score: 1

RE[3]: Hypothetical
by somebody on Sun 19th Feb 2006 21:43 UTC in reply to "RE[2]: Hypothetical"
somebody Member since:
2005-07-07

This doesn't make any sense. I can go and buy a OS X upgrade without owning an Apple machine, clearly separating the two (since I can legally own the OS X upgrade without having to own an Apple computer).

Yes, just as nobody will refuse to sell you a car or gun if your only plan is to break the law

By installing that copy of OS X on a non-Apple PC, I am breaking the EULA. Technically, Apple could ask me to stop running it. If I didn't, then this would need to go to court, something which might expose the inherent weaknesses in those EULAs (some of which may be illegal in certain countries). This means that Apple would probably need to change those EULAs - not a thing they necessarily want to do.

Correction, you're not breaking EULA only. You're also breaking resale agreement (your invoice), which is enforceable as saying cheese in our country. EULA doesn't mean shit here.

Reply Score: 1

RE[4]: Hypothetical
by archiesteel on Sun 19th Feb 2006 22:50 UTC in reply to "RE[3]: Hypothetical"
archiesteel Member since:
2005-07-02

Yes, just as nobody will refuse to sell you a car or gun if your only plan is to break the law

It is not clear that breaking a EULA is breaking the law, and the concept of "resale agreement" you bring forward seems dubious.

Correction, you're not breaking EULA only. You're also breaking resale agreement (your invoice),

An invoice isn't a resale agreement, or any agreement of any sort, at least not here in Canada. You don't get an invoice in most over-the-counter purchases in the U.S. and Canada, you get a receipt, and a receipt is certainly not an agreement.

In the U.S., reselling software is legal, as was shown in the Softman v. Adobe trial. From Wikipedia:

"In the US, the first-sale doctrine, Softman v. Adobe [1] and Novell, Inc. v. CPU Distrib., Inc. ruled that software sales are purchases, not licenses, and resale, including unbundling, is lawful regardless of a contractual prohibition."

http://en.wikipedia.org/wiki/Copyright_infringement_of_software

Reply Score: 2

RE[2]: Hypothetical
by Thom_Holwerda on Sun 19th Feb 2006 21:11 UTC in reply to "RE: Hypothetical"
Thom_Holwerda Member since:
2005-06-29

Well, your 10.4 is either upgrade or OEM, but never retail which could be separated from Apple machine.

I hear this argument a lot, but personally I'm having a lot of trouble to find ANYWHERE on, or inside my box of Mac OS 10.4 Tiger that it is in fact an 'upgrade' copy. Actually, when I examine the box, the produt sticker that contains the barcode and such cleary says: "MAC OS X 10.4 RETAIL" (yes, in capital letters).

Nowhere in the EULA, on the box, in any manual, leaflet, the receipt, or whatsoever, does it say it is an upgrade. So, if I can't find that it is an upgrade- how does Joe know?

Reply Score: 5

RE[3]: Hypothetical
by somebody on Sun 19th Feb 2006 21:56 UTC in reply to "RE[2]: Hypothetical"
somebody Member since:
2005-07-07

Just ask any Apple representative. It is in the fine print. As it is, the "to be used with Apple hardware only". At least in our country this is legaly binding resale contract.

And second, try to find how to buy and install (not upgrade) on Apple Store site. You can't, upgrade only or bundled with new computer.

If you check history, the only real retail version was 10.0 (or it was 10.1), where Apple was selling two versions, one $99 and one $129 or so.

Here is a catch for you:
Why not contacting Apple Co. and ask them as official OSNews representative those questions. Maybe we will find I'm wrong, but then again maybe not.

Try to ask them these two questions:
1. Is OS license bundled with new computer treated as OEM as in one product which can't be separated legaly or as Retail and with that separateable from product it was bought from?
- If it is OEM then product (Mac/MacOS) is inseparatable and should be treated as one entity
- If it is then, you can simply bind it to non-Apple PC

2. Does retail version (not retail-upgrade) exists or not?
- If it does, then people can buy that for their home PC.
- If not, then it automaticaly binds under the same restrictions as product it was upgraded from

Don't speculate. Check the facts with Apple. I did, and that was the answer I got. Fair enough?

Edited 2006-02-19 22:00

Reply Score: 1

RE[4]: Hypothetical
by Thom_Holwerda on Sun 19th Feb 2006 22:05 UTC in reply to "RE[3]: Hypothetical"
Thom_Holwerda Member since:
2005-06-29

Fair enough?

No. I could ask Apple's PR manager of Apple Netherlands (I know him) but I can do that, being a member of the press. What I'm worried about, and what the courts will be worried about, is how on this sweet earth is Joe (god it must suck to be named 'Joe' when you're a geek) is supposed to know this is an upgrade version when he goes to shop X or the Apple Store. I bought my copy of Tiger at an official Apple retailer during a launch event of Tiger in Berlin, but no one told me it was an upgrade version-- and that was before my time as OSNews' managing editor.

The guys at my local Apple retailer (the biggest chain of Apple retailers in the Netherlands) never mentioned anything like this either-- and I talk to them often enough.

You might be able to 'deduct' that apple only sells upgrades-- but as long as this is not apparant in any way to Joe, it means f$%k all-- and even less in court. You do realize that people sued a microwave company because the manual of the damn thing did NOT say you should not put your dog in one?

2. Does retail version (not retail-upgrade) exists or not?

Yes it does, I have one lying right here next to my iBook as we speak. It clearly says 'RETAIL', and not 'upgrade' or 'update'.

Edited 2006-02-19 22:06

Reply Score: 5

RE[5]: Hypothetical
by somebody on Mon 20th Feb 2006 16:39 UTC in reply to "RE[4]: Hypothetical"
somebody Member since:
2005-07-07

No. I could ask Apple's PR manager of Apple Netherlands (I know him) but I can do that, being a member of the press....

Based on this answer you're already decided which answer you like. You're basing whole assumption of yours on your liking, nothing else.

What makes me wonder is: "Why do you bring this topic on if you've already decided on answer? Simply to persuade as much people as you canthat you've been right even in case you were not? This is called rambling out of Thoms pride and not public discusion."

Law is different when company is involved, yes. So you might've got right in case of Joe, or at least I don't know private sector as much as company related. (yes, it sucks when geek's name is Joe). And yes, US people tend to sue for stupid things. In EU (or at least in my part of it) you simply get told to fsck off and case dismissed if case is presented as stupid sensless beating of stupidity like burning dog in microwave. People like that should be checked for sanity.


As for second answer. Links from Apple worked for your session, so I couldn't see what link you posted. But, as I said. Find one option where it doesn't specify upgrade on Apple Store OSX pages. I couldn't find one. Everywhere is explicitly specified "upgrade your OSX".


And one question (or criticism) for my curriosity since you're part of OSNews staff: Isn't moderating down reserved for troll comments? Not that I care if my comments are up or down, for this I couldn't care less. I already know my karma without OSNews telling me. It just seems sad in last few weeks when people started moderating more, contra arguments usualy just get moded down and I always have to reselect posts without mod restriction if I wan't to see complete picture, but in this case I get trolls in my view just as moderation wouldn't exist. Either someone praises one thing or he gets moded down. Moderation on OSNews feels more or less like PR restriction of diferent view. One reason why I read these kind of news sites is to hear public opinion and not to get simple minded PR side of the story like your moderation provides now. All I can say is that OSNews quality dropped from the moment people started moderating by their dis/like. But then again, this comment will probably just end up moded down at the end.

At least make a difference between "troll" and "don't agree" to get a better moderation state.

Reply Score: 1

RE[6]: Hypothetical
by archiesteel on Mon 20th Feb 2006 17:07 UTC in reply to "RE[5]: Hypothetical"
archiesteel Member since:
2005-07-02

You can't mod someone down because you don't agree. You can, however, mod them down when they're off-topic. FYI, most trolls are off-topic (the topic rarely being flame wars...).

That said, you didn't get modded down in this thread, so I'm wondering why you're bringing this up...

Reply Score: 1

RE[7]: Hypothetical
by somebody on Mon 20th Feb 2006 18:19 UTC in reply to "RE[6]: Hypothetical"
somebody Member since:
2005-07-07

You can't mod someone down because you don't agree

Yep, it would be nice in your world.

That said, you didn't get modded down in this thread, so I'm wondering why you're bringing this up...

I didn't bring it about my posts. I couldn't care less about my mods. You could mod me down to the hell and I wouldn't loose a hair. What pisses me off is the fact, that I have to select negative mods for my system default if I want to read different opinions. And I'm noticing this now for over one month already.

As I said. I don't care about my posts. I know what I wrote, why would I need to read them again? A lot of contra but good posts get moded down lately, which downright pisses me off, since I have to enable down-modded posts if I want to get complete picture.

I'm interested in different opinions from all sides, not group liking. Moding on OSNews became just that unfortunatelly, people not respecting "troll only/off topic" clause.

Then again, maybe it is just me and it shows it is time for me to search for other News sites again.

Reply Score: 1

RE[4]: Hypothetical
by archiesteel on Sun 19th Feb 2006 22:58 UTC in reply to "RE[3]: Hypothetical"
archiesteel Member since:
2005-07-02

Just ask any Apple representative. It is in the fine print. As it is, the "to be used with Apple hardware only". At least in our country this is legaly binding resale contract.

What country is this? Do you have legal links to back this up?

Reply Score: 2

EULA validitity is not the question here
by somebody on Sun 19th Feb 2006 20:15 UTC
somebody
Member since:
2005-07-07

I wonder why people think EULA is everything is this picture.

If EULA would be the question, 50% of world population would probably use some cracked software completely legaly.

When buying OS you're also bound with certain resale agreement, where invoice is the claim. And the resale contract is legaly valid and enforceable EVERYWHERE.

In OSX (Intel or PPC) case, you buy Windows-OEM-like license automaticaly. The only version you can buy as retail is upgrade. Check Apple store, only upgrade exists. (non-upgrade retail existed but 10.0 only and it is PPC based, leaving 10.0 probably as the only legal way to obtain legal upgrade for some extra non-Apple PC) And the fact I checked that thing long ago with Apple representative.

OEM is enforceable, because they can say you got certain discount when buying your machine and this is why it can be bound to your machine as inseparable. It was agreement: you've got your discount and they got assurance you will buy new product when changing your machine (which in Apple case seems fishy, because you're forced to buy OS with your machine under that license. But... hey, nobody demanded Mac without OS so far, at least to my knowledge. Not that it is so good. You simply can't buy Mac without it). OEM license is also inseparable part of the machine you bought. Keeping old OEM with your new machine makes it invalid. By the simple fact that you can't show invoice where OEM is specified for that particular machine where you actualy used OSX, remember: old Mac in closet doesn't count here.

Retail (talking about Apple upgrade only case, where Apple sells only upgrades) on the other hand can be bound to previous product only. Meaning if you have two Macs, you can (usualy) flip that retail between them how ever you want. As long as you use one only at the time and the machine where you use it contains at least one original OEM license.

In translation, it invalidates using OSX on any non-Apple hardware, because you can't buy non-Apple hardware with OSX.

(at least in our country) In EU DMCA, BSA and others are the least of your problems. In 99% you can turn them away with a single phone call before they succed to get trough your door. Problem is financial inspection, which usualy consists of two people one validating your invoices, taxes, etc. and one validating software on your computers where you have to provide (for every computer and every software) license and original invoice, or in case like OSX You have to provide invoice for your Mac and invoice for OSX Retail.

In stupid translation how this works.
Apple could simply say that by buying Mac you get a zillion $ discount for your OS, and they provide retail for upgrade with (another) same discount again. And with invalidating the resale (when you bought retail OSX for non-Apple PC) contract, you avoided giving Apple its proffit it would gain if you would buy their machine. Apple just has to say that by getting proffit from HW they seemed fit to give you that zillion or two for free on OS.

Reply Score: 2

hmm
by Mellin on Sun 19th Feb 2006 21:47 UTC
Mellin
Member since:
2005-07-06

Open Source EULA isn't valid ?

Reply Score: 1

RE: hmm
by bornagainenguin on Mon 20th Feb 2006 01:19 UTC in reply to "hmm"
bornagainenguin Member since:
2005-08-07

If you refer to GPL, that's different as the GPL is a copyright license; EULA are contracts...supposedly.

--bornagainpenguin

PS: Nice try.

Reply Score: 2

If EULA's Can't BeEnforced, Neither Can GPL
by enloop on Sun 19th Feb 2006 23:39 UTC
enloop
Member since:
2005-11-13

The legality of Maxxus' actions will be determined by the courts. That's how it works in civil law. Apple argues he has broken the contract he became a party to when he acquired OS X. He argues otherwise.

However, those who support Maxxus should remember that they are essentially arguing that the act of acquiring software does not constitute a legal obligation to abide by the license terms of the software issuer. Those who support things like the GPL ought to ponder that. If Apple can't enforce its EULA, then there's not much hope for enforcing the GPL.

Reply Score: 1

archiesteel Member since:
2005-07-02

Those who support things like the GPL ought to ponder that. If Apple can't enforce its EULA, then there's not much hope for enforcing the GPL.

Not at all, because proprietary EULAs are quite different from licenses such as the GPL. The GPL is an extension of copyright law, which states additional rights that users have to modify and redistribute the software. The GPL is an extension of copyright law, given that you comply with the license.

EULAs, on the other hand, seek to limit the rights of the person who have purchased the software (I say "purchase", because that's what the courts have determined it to be - a purchase, not a rental or a license). The limits are on how the person can use the software, and prohibit redistribution (which is redundant, since copyright law already does so).

The GPL is quite clear, legally. You can only profit from the additional rights if you abide by its rules. It has been tested in court (in Europe) and found legally solid. EULAs are anything but clear, and they have never been tested in courts because those who use them would risk seeing them being struck down as invalid (and perhaps illegal in certain countries).

So, you are in fact mistaken: attacking the legality of EULAs in no way affects the legality of the GPL. Apples and oranges, if you will.

Reply Score: 3

enloop Member since:
2005-11-13

>>"...given that you comply with the license."

You said it yourself. Both commercial EULA's and the GPL assume that the act of acquiring and using the software represents the user's acceptance of the license. This acceptance is regarded as binding.

If legal action involving EULA's determines that the use of software does not, by itself, represent binding acceptance of the license, that would not necessarily mean that the license was invalid. Rather, it would mean that the software vendor needed to obtain the user's explicit agreement to the license. Many commercial vendors do this already via a click-through at the start of the installation routine. Many, if not most, of the GPL'd products I've used do not do this. They simply assert -- independent of the instalation routine -- the GPL and state that my use of the product represents my acceptance of the license. How do they know I've accepted the license if I can install and use the software without needing to indicate my acceptance?

Reply Score: 1

Temcat Member since:
2005-10-18

Repeat after me: EULA is not a copyright license, unlike GPL. GPL restricts copying, not usage. EULAs attempt to do the latter.

GPL assume that the act of acquiring and using the software represents the user's acceptance of the license

Wrong. In GPL, copying and redistributing mean acceptance of the license. Not using.

Reply Score: 3

archiesteel Member since:
2005-07-02

They simply assert -- independent of the instalation routine -- the GPL and state that my use of the product represents my acceptance of the license.

No they don't. The GPL contains terms and conditions for copying, distribution and modification of the program, not its use. You've been arguments to support this already, you should either offer counter-arguments or admit that you were wrong, not simply re-state your original position.

Reply Score: 1

enloop Member since:
2005-11-13

The content of the license -- GPL or commercial EULA -- is not relevant to my argument. I'm pointing out that both make the assumption that some action by the user -- installation, use, redistribution, etc. -- signifies acceptance that the license is now binding on the user.

Therefore, if the courts rule that one of them, say, the EULA, does not, in fact, bind the user to abide by the terms of the license, I see no reason why that ruling would not also apply to other licenses applied in the same way, such as the GPL.

This hold true regardless of the acual content of the license, since we're talking about the mechanism used to bind the user to a contract, not the terms of the contract.

Reply Score: 1

rhavyn Member since:
2005-07-06

The content of the license -- GPL or commercial EULA -- is not relevant to my argument. I'm pointing out that both make the assumption that some action by the user -- installation, use, redistribution, etc. -- signifies acceptance that the license is now binding on the user.

The content of the license may not be but your argument is still 100% fatally flawed. You have the right under copyright law to install and use software. So a EULA is not giving you any rights you don't already have, it is restricting your rights. Redistribution, however, is not a right you have. Without agreeing to the GPL you have no right to redistribute, copy or modify the software. So, as the GPL says, you do not need to agree to the GPL but unless you do agree with the GPL you have no right to redistribute, copy or modify the software. Which is why EULAs and the GPL are completely different things and your argument is flawed.

Therefore, if the courts rule that one of them, say, the EULA, does not, in fact, bind the user to abide by the terms of the license, I see no reason why that ruling would not also apply to other licenses applied in the same way, such as the GPL.

Because the GPL is the only thing which gives the licensee the right to redistribute, modify or copy the software. If they didn't agree to the GPL then they are committing willful copyright infrigement, which by the way actually is a crime.

This hold true regardless of the acual content of the license, since we're talking about the mechanism used to bind the user to a contract, not the terms of the contract.

Again, the content of the license doesn't matter but the circumstances regarding the necessity of the license is completely different. EULAs are forced on you, the GPL isn't. In either case, without the license things just revert to normal copyright rules. The GPL just happens to be the only thing that gives you the rights to copy, modify and redistribute the software.

Reply Score: 3

enloop Member since:
2005-11-13

The GPL is "forced" on me in the same way as a EULA. That is, I act in a manner that the license issuer assumes represents my implicitagreement to a binding contract. It's the "implicit" aspect that both have in common.

In the case of a EULA, my action is usually responding to a clickthrough at the beginning of the installation routine.

In the case of the GPL, the text of the license is included with the product. Typically, users are not compelled to read or indicated agreement with the GPL prior to installation.

Regardless, both kinds of licensing mechanisms assume that some specific action by the user implies acceptance of the terms of the contract.

If a court rules that implied acceptance is insufficient to bind users, then that will have an impact on both EULA's and the GPL.

Yes, the terms of the GPL and the typical EULA are different. And, yes, the GPL gives me redistribution rights that a commercial EULA doesn't. But, the GPL still attempts to bind me to the terms of the license, however broad and generous they might be.

Reply Score: 1

rhavyn Member since:
2005-07-06

The GPL is "forced" on me in the same way as a EULA. That is, I act in a manner that the license issuer assumes represents my implicitagreement to a binding contract. It's the "implicit" aspect that both have in common.

The GPL isn't forced on you and it isn't implicit. If you don't copy, redistribute or modify the software the GPL doesn't come into play at all. And if you do want to copy, redistribute or modify the software you, by law, need a license from the copyright holder. It doesn't matter if the software is licensed under the GPL, LPGL, BSD, MPL, CDDL, etc., or a proprietary license. You need a license from the copyright holder or you are committing willful copyright infringement. When it comes to software under the GPL you have the options of simply following the GPL or you can contact the copyright holder(s) and attempt to get the software under some other license. There is nothing implicit about copyright licenses, either you agree or you have no rights to redistribute, copy or modify. The sooner you understand this the sooner you'll stop with this silly argument.

In the case of a EULA, my action is usually responding to a clickthrough at the beginning of the installation routine.

In the case of the GPL, the text of the license is included with the product. Typically, users are not compelled to read or indicated agreement with the GPL prior to installation.


Users don't need to agree with the GPL at any point in time to use the software, only to modify, redistribute or copy it.

Regardless, both kinds of licensing mechanisms assume that some specific action by the user implies acceptance of the terms of the contract.

Again, you're wrong. The GPL doesn't implicitly come into play, it is the only mechanism you have to legally redistribute, copy or modify the software. If you don't agree with it and you perform one of those acts anyways then you are breaking the law.

If a court rules that implied acceptance is insufficient to bind users, then that will have an impact on both EULA's and the GPL.

Still wrong, there is no implied acceptance of the GPL. There is simply the fact that if you don't agree with it you have no rights beyond those given to you by copyright law. Copying, modifying or redistributing the software without a license is copyright infrigement, a crime.

Yes, the terms of the GPL and the typical EULA are different. And, yes, the GPL gives me redistribution rights that a commercial EULA doesn't. But, the GPL still attempts to bind me to the terms of the license, however broad and generous they might be.

The GPL doesn't attempt to bind you to anything. If you choose not to accept the license then it doesn't affect you at all. Just follow normal copyright law and you can pretend the GPL doesn't exist. But to copy, modify or redistribute the software you absolutely need a license from the copyright holder. The GPL is one possible license.

Now, please, go and learn how copyright law works. This argument you're putting forward is wrong. Your ignorance of how these things work, especially after having it all explained to you repeatedly is making you look silly.

Reply Score: 3

Morin Member since:
2005-12-31

> Regardless, both kinds of licensing mechanisms assume
> that some specific action by the user implies
> acceptance of the terms of the contract.
>
> If a court rules that implied acceptance is
> insufficient to bind users, then that will have an
> impact on both EULA's and the GPL.

No, it will have exactly *no* impact on the GPL (disclaimer: I'm not a lawyer). Assume that implicit acceptance is ruled insufficient. For the sake of the argument, assume that implicit acceptance is rules to be no acceptance at all. Everybody could use GPL'ed software just as they could before.

Now suppose somebody *copies* GPL'ed software. By copyright law on its own, this would not be allowed, but the GPL gives you the right to do it. Now suppose that this user does something which the GPL tries to prevent, such as building a closed-source application from it and redistributing it. In court, there would be the question whether he agrees to the GPL. If the answer is yes, then he has to open up the code. If the answer is no (by stating that implicit acceptance is insufficient or by any other argument) - voila, then there is no agreement that allows him to distribute that software, and he has violated copyright law.

The trick with the GPL is not implicit acceptance, but that if you violate it, then you're f*cked up either way - whether you have accepted the GPL it or not.

- Morin

Reply Score: 3

archiesteel Member since:
2005-07-02

enloop, your argument doesn't hold. The GPL is not at all like a EULA, as it does not cover use, and imposes no restriction on use. If you decide to modify GPLed software and redistribute it without giving others the same write (i.e. following the license), then you are committing copyright infringement.

If you decide not to follow a EULA, you are not committing copyright infringement at all. Therefore the two are completely different (i.e. the GPL is a license, a EULA is not, even if the word "license" appears in it).

It would make as much sense to you to say that EULAs being invalidated would affect mortgage contracts between homeowner and banks. It doesn't make sense. You've been shown this repeatedly. You can stop now.

Reply Score: 1

unapersson Member since:
2005-07-19

"Those who support things like the GPL ought to ponder that. If Apple can't enforce its EULA, then there's not much hope for enforcing the GPL."

There's a big difference between the GPL and EULAs, the GPL grants you extra rights you wouldn't otherwise have, EULAs restrict rights.

So if you decide you wish to ignore the GPL, then your rights are simply those provided to you by copyright law.

Reply Score: 2

rayiner Member since:
2005-07-06

The GPL isn't an EULA. It's a copyright license. The two are completely different things. A copyright license controls the terms of redistribution, a power given to it by copyright law. An EULA is supposedly a contract that controls the terms of use. It is unclear as of yet exactly from where EULA's derive the power to determine terms of use.

To make it clear --- if the GPL said "you can only used GPL'ed software on Linux", it wouldn't be a legally viable restriction. Copyright law doesn't give the GPL the power to do things like that.

Reply Score: 2

Not correct
by postmodern on Sun 19th Feb 2006 23:39 UTC
postmodern
Member since:
2006-01-27

An EULA is a contact you are bound to once you have agreed to it in order to use the product. Maxxus's actions do not violate the contract, but allow others to violate the EULA.

Apple's actions are a SLAPP suite, it's just a scare letter sent to the ISP that the forums were hosted on complaining about possible DMCA violations.

This has nothing to do with copyrights and everything to do with Apple maintaining it's lock-in tactic of selling software with hardware. Much like the DeCSS case this has nothing to do with piracy and everything to do with people challenging restrictive content control systems.

Condemn Maxxus all you want, perhaps even wage your finger at him. This is maybe a legal issue, but it's also a technical one. No matter how much lawyering is done, it will not make OSX's restrictions any more secure.

I can't wait to see what happens when a company makes an OSX compatible motherboard. It didn't turn out too good for IBM v. Compaq back in the day.

http://en.wikipedia.org/wiki/Compaq_Portable

Reply Score: 1

Put another way...
by Kokopelli on Sun 19th Feb 2006 23:48 UTC
Kokopelli
Member since:
2005-07-06

Unless Maxxus worked very fast he is either bound by a developer agreement with Apple, which you did have to agree to a contract for before getting the developers release, or he was using a pirated version. If it is the latter then I have no sympathy for him at all.

If he bought a new x86 based Mac and worked from his legally obtained copy then his footing is a little better, but the earlier argument still stands.

Reply Score: 1

It's your "condemnation" which grates
by cr8dle2grave on Mon 20th Feb 2006 00:49 UTC
cr8dle2grave
Member since:
2005-07-11

Good, we've got the legality issue out of the way. What remains is the ethical judgment you've made and they way in which you apply it. And that, not your classifying of Maxxus' actions as illegal, is what I personally took exception to.

What is really at issue here is the scope of the ethical judgment you've made and publically endorsed. Namely, "violating the terms of an EULA is wrong." To this judgement you then added an ambiguous conditional, "for me." What does this "for me" mean?

Should I interpret your claim to mean that where violating an EULA is wrong for you, it might well be right for me? If this is the sense in which you intended your claim to be interpreted (a relativistic frame), then I might well wonder what criteria you recognize as relevant for the purposes of distinguishing those for whom the action is wrong from those for whom the same action is right, but I'm honestly not particularly motivated to understand the nature of your judgement if it was intended in this manner.

That said, I don't think your claim can be interpreted in the above manner since you've clarified that you "condemn" his actions. Presumably, you condemn Maxxus' actions on the grounds that "violating the terms of an EULA is wrong" holds not just for you personally, but also for Maxxus and others as well, correct?

It is your condemnation which grates. You are charging others with commiting unethical actions. Wrapping up an ethical judgement, one which is intended to be applied with a universal scope, in the term "personal" doesn't insulate that claim in any way from criticism. If you don't want your "personal" opinions challenged, then don't open your mouth in public.

Or should we who have been charged with acting unethically forego any right to defend ourselves? Are "personal" ethical judgements out of bounds for discussion? Are you entitled, in a logical not legal sense, to believe whatever you want by simple virtue of your being a person?

Rubbish! I say that you, Thom, have made an error in judgment. Further, I explicitly do not seek to have this judgment of mine protected from criticism. In making the claim that you have made an erroneous judgment, I acknowledge that I've already invited a response from you (and implicity from anyone else as well).

Reply Score: 4

Thom_Holwerda Member since:
2005-06-29

If you don't want your "personal" opinions challenged, then don't open your mouth in public.

Why not? I want my opinions challenged-- of course! The throat remark was in general-- and applies to me as well as to you. It means that people should learn not to somehow think that whatever they think, is The One Truth.

I have every right to express myself. If you think otherwise about this issue than I do, then I respect that. I'll listen to your arguments, and if they're good, I might even change my mind.

Reply Score: 5

business model
by sp29 on Mon 20th Feb 2006 02:39 UTC
sp29
Member since:
2006-01-04

Maxxus is breaking the LAW. This would be a big issue if he wasn't.

It's not just Apple, but every other company will back Apple in going after this punk, because this is damaging to the company's business and business model.

Reply Score: 1

RE: business model
by rhavyn on Mon 20th Feb 2006 04:35 UTC in reply to "business model"
rhavyn Member since:
2005-07-06

Maxxus is breaking the LAW. This would be a big issue if he wasn't.

Which law is that, can we get a citation please?

It's not just Apple, but every other company will back Apple in going after this punk, because this is damaging to the company's business and business model.

If it wasn't for people like Maxxus doing things like what he's doing we wouldn't have PCs as you know them today. Go look up the history of the IBM PC and Compaq's reverse engineering of their BIOS.

Reply Score: 4

It still may be illegal...
by NeoX on Mon 20th Feb 2006 02:46 UTC
NeoX
Member since:
2006-02-19

Just because violating the EULA doesn't necessarily mean that it is illegal. Hacking and or reverse engineering, and copy protection circumventing may be illegal and likely is... If you circumvent copy protection then aren't you violating the DMCA and thus breaking the law? This is according to Apple who has been serving notices to sites that promote or help users in this way.

Just a thought...

NeoX

Reply Score: 1

RE: It still may be illegal...
by archiesteel on Mon 20th Feb 2006 03:09 UTC in reply to "It still may be illegal..."
archiesteel Member since:
2005-07-02

Hacking and or reverse engineering, and copy protection circumventing may be illegal and likely is... If you circumvent copy protection then aren't you violating the DMCA and thus breaking the law?

This is why Apple invoked the DMCA and not copyright law. Of course, such a case could also prove dangerous to the DMCA, because it could be argued that Maxxus did so not in the context to redistribute, but rather for personal use, which is covered under fair use. This could be used to show that the DMCA is misused to limit fair use of copyrighted material, which will help critics of the law.

Reply Score: 1

RE[2]: It still may be illegal...
by rhavyn on Mon 20th Feb 2006 04:40 UTC in reply to "RE: It still may be illegal..."
rhavyn Member since:
2005-07-06

This is why Apple invoked the DMCA and not copyright law. Of course, such a case could also prove dangerous to the DMCA, because it could be argued that Maxxus did so not in the context to redistribute, but rather for personal use, which is covered under fair use.

Even that won't cut it since under the DMCA Section 1201(f) reverse engineering for the purposes of interoperability is permissable.

Reply Score: 3

EULA is not law....
by silicon on Mon 20th Feb 2006 03:10 UTC
silicon
Member since:
2005-07-30

Yes you got it right, there is no law that says breaking an EULA will result in a criminal offence. EULA is a civil contract something just like "Not to be sold in individually" you see on a chocolate wrapper thats a part of a pack of chocolates. It only leads to civil penalties.


And Thom nobody gives you the right to condemn Maxxmus for what he's done, He hasn't violated the law and the most important thing: You condemn him because you dont agree with him (which is the same reason OSNews doesnt allow comments to be voted down if you dont agree with it.)


On a sidenote it would be better if Moderators could be modded down.

Reply Score: 2

RE: EULA is not law....
by Thom_Holwerda on Mon 20th Feb 2006 08:23 UTC in reply to "EULA is not law...."
Thom_Holwerda Member since:
2005-06-29

And Thom nobody gives you the right to condemn Maxxmus for what he's done, He hasn't violated the law and the most important thing: You condemn him because you dont agree with him (which is the same reason OSNews doesnt allow comments to be voted down if you dont agree with it.)


That's the whole point: Without ANY jurisprudence conerning this issue, you have no way of flat out claiming that EULAs will not hoold up in court. It might not hold water in your country, but big chance that does not count for my country. I condemn his actions on the basis of my personal feelings about this, NOT on the basis of the law.

And yeah, obviously, I do not agree with him. That's why I wrote this article in the first place. I did not vote him down, now, did I? No, I used rartionale to explain my position, like so many others here have used rationale to explain their position.

Even if what he did WAS clearly illegal, I could still condemn his actions, just not on the basis of it being illegal.

Reply Score: 5

RE[2]: EULA is not law....
by D-J-P on Mon 20th Feb 2006 09:06 UTC in reply to "RE: EULA is not law...."
D-J-P Member since:
2005-07-06

I don't see nothing wrong in what maxxuss has done. Apple should have known this would happen the minute they switched to intel. The only thing different between a mac and a pc used to be the processor, almost all other components where already 100% the same.

But Thom, did you also condemn the actions of the people that hacked Windows Product Activation? Or didn't that matter cause it's cool to hack Microsoft but uncool to hack Apple? Especially if you bought an expensive apple system and you see that someone with a "cheap gray box" can run exactly the same operating system with exactly the same core image and quartz extreme effects. I think that is the true reason why you keep going on here about maxxuss.

BTW don't forget how Steve and Woz actually started. They where hackers themselves stealing from the phone company with their blue boxes.

Edited 2006-02-20 09:08

Reply Score: 1

RE[3]: EULA is not law....
by Thom_Holwerda on Mon 20th Feb 2006 09:40 UTC in reply to "RE[2]: EULA is not law...."
Thom_Holwerda Member since:
2005-06-29

But Thom, did you also condemn the actions of the people that hacked Windows Product Activation? Or didn't that matter cause it's cool to hack Microsoft but uncool to hack Apple?

I condemn that just as strongly. I find it just as wrong.

Especially if you bought an expensive apple system and you see that someone with a "cheap gray box" can run exactly the same operating system with exactly the same core image and quartz extreme effects. I think that is the true reason why you keep going on here about maxxuss.

Haha, seriously? My iBook wasn't expensive, so no, that ain't it. Don't go making stuff up now. Tough ey, to see someone condemn something because of his principles?

BTW don't forget how Steve and Woz actually started. They where hackers themselves stealing from the phone company with their blue boxes.

Ah... That explains everything. Because someone did something to someone, you are allowed to do that something to that person too... Yeah, that's really gonna hold up in court.

Reply Score: 5

RE[4]: EULA is not law....
by silicon on Mon 20th Feb 2006 11:37 UTC in reply to "RE[3]: EULA is not law...."
silicon Member since:
2005-07-30

Then I condemn Apple for what it has done ie. locked the user on its own platform. And before Maxxus goes to court, Apple has to. (Now dont say its not illegal to be monopolistic like how Apple is : Apple has the monopoly of Macs and so they tie everyone to their overexpensive piece of hardware.)

Reply Score: 1

An Ideal
by hauger on Mon 20th Feb 2006 03:53 UTC
hauger
Member since:
2005-12-05

Wow....is this ever a topic that rings around in circles.

What really needs to happen here is for someone to take some software product (it really doesn't matter which one), and by being very careful to stay within the confines of the law, blatently and very publicly break the EULA on a big enough scale as to make the publisher of the software have to do something about it. This would provide a beautiful test case (and would serve as a great education for those here that cannot seem to make the distinction beween contract law and public law.....I bet it'd be areal eye opener for some).

Thing is, with these test cases concerning the EULA, no company is willing to test the legality of these contracts for fear of having them labeled unenforcable, the risk is to great to take when it concerns non-conected individuals.

Apple, however, makes for an interesting EULA testing ground. The reason why is that the hardware necessary for the Apple software to work is generic, off-the-shelf stuff. This means that distribution methods, the EULA, and maybe some DMCA (in the states) stuff is all that is keeping the Apple software from being installed on this generic hardware. That means that the forced purchase of Apple "branded" hardware (or, more appropriately, Apple assembled hardware) is being artifically upheld due to the EULA and distribution methods.

So, it could prove to be a heck of a test case for EULA's if it turns out that the distribution method lock-in is overcome by the availability of full retail boxes.

On a fun note.....Apple is currently engaged in a case of "Tying", which is an illegal business practice that basically states that if you sell software that runs on hardware that you make, and runs on hardware that you don't make, you cannot force people to buy the hardware you make. Simple. There are many, many precedents set in the past regarding this issue. Check out 1980's Data General case regarding the tying of the purchase of it's operating system to it's hardware. It was a no-no, and it was declared in violation of anti-trust laws. And in no way now, or ever, does the EULA override any public laws at all, including anti-trust laws.

Reply Score: 4

RE: An Ideal
by alcibiades on Mon 20th Feb 2006 07:57 UTC in reply to "An Ideal"
alcibiades Member since:
2005-10-12

"On a fun note.....Apple is currently engaged in a case of "Tying", which is an illegal business practice"

Yes, this is absolutely right, in the EC. There are two things you cannot do under EC competition law, one is linked sales, the other is post sales restrictions on use. The reason is that both are vehicles to elimination of competition. So, by linked sales, you would compel people to buy two products together, when there are two distinct market segments.

For example, as a Telco, you would oblige buyers of your network services to buy their customer premise equipment from you, and refuse to supply if they brought their own. Unlawful.

Or, you could try forbidding people to resell what they had bought, or perhaps forbidding them to use it for certain purposes or with some other products. Also unlawful: once you have bought it, its yours.

There is a third thing you seem to be unable to do, at least in the part of the EC that is the UK. That is, tell people in your product documentation that they do not have the rights which they have. So you cannot tell them it is ok for you to do linked sales or post sales restrictions on use.

Reply Score: 3

Read me Maxxus!
by Viza on Mon 20th Feb 2006 18:28 UTC
Viza
Member since:
2006-02-20

"This License allows you to install and use one copy of the Apple Software on a single Apple-labeled computer at a time. This License does not allow the Apple Software to exist on more than one computer at a time, and you may not make the Apple Software available over a network where it could be used by multiple computers at the same time."

I have an apple sticker on my blackbox. It keeps me from explaining how brand isn't as important as the mix engineer and the quality of software/studio gear to computer illiterate musicians. As there is no other label on it, and this is an Apple-labeled computer, I could install OS-X without violating the EULA, right?

Conversely, if I tear my apple labels off my Apple, and install OS-X, isn't that a violation of the EULA?

Just wondering...

-Viza

Reply Score: 1

A bit off-topic...kinda
by OMRebel on Mon 20th Feb 2006 19:46 UTC
OMRebel
Member since:
2005-11-14

Anyone got a torrent link for the latest OSx86 DVD? Thanks. :o)

Edited 2006-02-20 20:04

Reply Score: 1

RE[4]: OS X sold is upgarde version.
by vitae on Mon 20th Feb 2006 20:49 UTC
vitae
Member since:
2006-02-20

"Unfortunately we as a global society have shown an apalling lack of respect for the work of others."

Ah, and is it really any surprise in a world such as ours where might makes righ, where if you don't agree with the rules, that you simply break them or pretend they don't exist? If the corporations and even nations of the world do this on a daily basis, why wouldn't the common man in the streets? Let's be honest. The laws are there to keep the sheep and the unusually moral in line. For everyone else it's survival of the fittest, get what you can before the big show is over. The rules exist largely as a symbolic thing, meanwhile chaos reigns in the world. Love it or hate it, that's how it is.

Reply Score: 1

Who cares?
by Don Roritor on Mon 20th Feb 2006 20:51 UTC
Don Roritor
Member since:
2005-07-06

Jeez people, is this kindergarten?

> > your idiotic reader crowd misunderstood you.

> You just called yourself an idiot ;)

Reply Score: 1

What many seem to be missing
by alcibiades on Tue 21st Feb 2006 06:21 UTC
alcibiades
Member since:
2005-10-12

Many seem to be missing this rather simple point. It is not whether Eulas are valid. Some conditions in Eulas are, some are not.

The question is whether a particular condition of sale, in a Eula or elsewhere, is binding. Most countries have consumer protection law, and laws against anti competitive conduct by companies, that make quite a lot of Eula and other conditions which computer suppliers try to impose, plain unlawful.

So, in the EC, you are going to have the legal right to run your purchased copy of OSX on non-Apple hardware, and no contract or condition of sale is going to make a prohibition binding on you. Not only that, telling you the contrary in the sales material may well be unlawful at least in Britain.

It is not, primarily, about Eulas. It is mainly about what conditions suppliers may impose on buyers as a condition of sale.

Reply Score: 1

Pay Attention, Rhavyn
by enloop on Tue 21st Feb 2006 13:06 UTC
enloop
Member since:
2005-11-13

>>"...you don't seem to understand is that a EULA restricts the rights you would have by default."

Pay attention, Rhavyn. I understand quite well, but the terms of the license have noting to do with the point I've been making.

I am not talking about the content or purpose of either license or about my opinion of either license.

I am talking about the mechanism that products use to acquire a user's acceptance of their license.

Neither EULA's or the GPL obtain a user's explicit acceptance of the terms of the license. Both make the assumption that the act of installing and/or redistributing the product amounts to implicit acceptance of the licensee.

Whether or not EULA's are good or bad is not relevant to this argument. Whether or not the FSF can fall back on copyright law is not relevant. The words of a license are irrelevant to my point.

Reply Score: 1

Pay Attention, Enloop
by Morin on Tue 21st Feb 2006 14:26 UTC in reply to "Pay Attention, Rhavyn"
Morin Member since:
2005-12-31

> I am talking about the mechanism that products use to
> acquire a user's acceptance of their license.

You need to pay attention as well. Please take the time to actually *read* this:

Copying a GPL'ed program does NOT imply acceptance of the GPL. Only, if you copy a GPL'ed program and do NOT accept the GPL, then nothing grants you the right to copy at all.

You still have the full right to decide whether you agree to the GPL or not. However, if you don't abide by the GPL's terms, then this is the decision whether you have broken a contract or copyright law.

> Neither EULA's or the GPL obtain a user's explicit
> acceptance of the terms of the license. Both make the
> assumption that the act of installing and/or
> redistributing the product amounts to implicit
> acceptance of the licensee.

This is simply not true. The GPL does NOT make that assumption.

> Whether or not EULA's are good or bad is not relevant
> to this argument.

Correct. Nor is the mechanism for implicit acceptance, the fact whether you implicitly accept or the fact whether you accept the GPL at all relevant.

> Whether or not the FSF can fall back on copyright law
> is not relevant.

It *is* relevant, because it will be the tool to sue you if you decide NOT to agree with the GPL.

> The words of a license are irrelevant to my point.

This is correct, but your point is only that one need not accept the GPL. However, this is not required for the GPL to work the way it is intended.

- Morin

Reply Score: 2

enloop Member since:
2005-11-13

>>"...your point is only that one need not accept the GPL."

No, that is not my point.

Any license contains terms and provisions. For the license to be legally enforceable, the licensor must acquire the licensee's acceptance of the terms of the license. That applies to any license: a EULA, the GPL, a driver's license, a license to practice medicine, whatever.

Some licenses require both parties -- licensor and licensee -- to sign a written contract that binds both to the terms of the license. As such, explicit acceptance is acquired.

It is clearly impractical for that kind of explicit acceptance to be documented in the cases of mass market commercial or open source software. Hence, the resort to implied accpetance. If you violate the terms of a Microsoft license, they will assert that your act of clicking through the EULA during installation implies your acceptance of the license. If you violate the terms of the GPL, the FSF can assert that, because the package you installed contained the text of the GPL, you had implicitly accepted its terms.

So, to reiterate yet again, neither the GPL or EULA's obtain a user's explicit acceptance. If it isn't explicit, then by definition it must be implicit.

Whether or not the FSF's lawyers could fall back to copyright law if they were unable to enforce the GPL has no bearing on any of this.

And, again, if the courts disallow the notion that impicit acceptance binds a user to the terms of a license, then it is logical that both EULA's and the GPL would need to alter the mechanism they use to acquire that acceptance. If they did not, their licenses would be unenforceable.

Reply Score: 1

rhavyn Member since:
2005-07-06

You're quite persistent about being wrong, aren't you.

Any license contains terms and provisions. For the license to be legally enforceable, the licensor must acquire the licensee's acceptance of the terms of the license. That applies to any license: a EULA, the GPL, a driver's license, a license to practice medicine, whatever.

Wrong. For a license to be legally enforceable the terms of the license need to be equitable and legal. If both parties haven't entered into an agreement then there is no contract. You can't "implicitly" agree with a contract, either you have or you haven't. EULAs wouldn't be unenforceable because of an implicit agreement, clicking an "I Agree" button is not implicit. They would be unenforcable because they are not equitable or because the terms of the license aren't legal.

Some licenses require both parties -- licensor and licensee -- to sign a written contract that binds both to the terms of the license. As such, explicit acceptance is acquired.

All contracts require explicit acceptance. Explicit acceptance does not imply a signature.

It is clearly impractical for that kind of explicit acceptance to be documented in the cases of mass market commercial or open source software. Hence, the resort to implied accpetance. If you violate the terms of a Microsoft license, they will assert that your act of clicking through the EULA during installation implies your acceptance of the license. If you violate the terms of the GPL, the FSF can assert that, because the package you installed contained the text of the GPL, you had implicitly accepted its terms.

They don't resort to implied acceptance. Why do you think you need to click an "I Agree" button? That's explicit. You even said so yourself, "they will assert that your act of clicking through the EULA during installation", i.e. they will assert that since you agreed to the license during installation you need to obey the license. Your own examples prove you wrong. As for your GPL example, installing the software doesn't have anything to do with the GPL. You can disagree with the GPL, you can write letters to Congress and ask them to outlaw the GPL and you can still install and use the software. But if you refuse to accept the GPL and then redistribute, modify or copy the software and end up in front of a judge, they're going to wonder under what interpretation of copyright law you believe you have the right to redistribute, modify or copy the software. Again there is nothing implicit, don't agree with the GPL don't redistribute the code. If you do then you are committing a crime.

You probably also think that if a company infringes on the GPL that they need to release their code to the public too, don't you?

So, to reiterate yet again, neither the GPL or EULA's obtain a user's explicit acceptance. If it isn't explicit, then by definition it must be implicit.

Except you've already shown that in neither case is it implicit.

Whether or not the FSF's lawyers could fall back to copyright law if they were unable to enforce the GPL has no bearing on any of this.

You don't fall back onto copyright law, copyright law is the basis of the GPL. You either a) follow the rules or b) don't redistribute the code. There is no c. If you don't do a then you've committed a crime and the FSF (or, accurately the copyright holder) can sue you for damages and enjoin you from further distribution.

And, again, if the courts disallow the notion that impicit acceptance binds a user to the terms of a license, then it is logical that both EULA's and the GPL would need to alter the mechanism they use to acquire that acceptance. If they did not, their licenses would be unenforceable.

And, again, you're wrong. You can rephrase your lame argument till you're blue in the face and your fingers fall off, you're wrong, wrong, wrong, wrong, wrong. There is nothing implicit about the GPL and in most cases, nothing implicit about an EULA. For a EULA you explicitly agree when you click the button. For the GPL you either explicitly agree when you decide to copy, modify or redistribute the code or you face, at minimum a lawsuit, potentially a huge fine and a lengthy visit to club fed.

In either case, I don't know how many times I need to reiterate this, there is nothing which forces you to agree with the GPL. Go ahead and disagree with it all you want. Seriously, go read it, it even says (as I've copied and pasted onto this forum twice now) that you don't need to agree with it.

It's amazing to me how you can try and explain very elementary aspects of law to people and they just refuse to understand.

Reply Score: 2

archiesteel Member since:
2005-07-02

It's amazing to me how you can try and explain very elementary aspects of law to people and they just refuse to understand.

I'm beginning to think that it's because some of them are more interested in spreading FUD to support a hidden agenda than they are with spreading the truth.

It doesn't really matter, because the fact that they spout FUD will not change the fact that no proprietary software company will dare endanger EULAs by testing them in court, while the Free Software developers have no qualms with testing the GPL in court (and have done so in Germany).

Reply Score: 1

RE: Pay Attention, Rhavyn
by rhavyn on Tue 21st Feb 2006 18:12 UTC in reply to "Pay Attention, Rhavyn"
rhavyn Member since:
2005-07-06

Pay attention, Rhavyn. I understand quite well, but the terms of the license have noting to do with the point I've been making.

I am not talking about the content or purpose of either license or about my opinion of either license.

I am talking about the mechanism that products use to acquire a user's acceptance of their license.


And you're wrong. I've explained half a dozen times why you're wrong. They do not use the same mechanism to aquire a user's acceptance of the license. There is nothing implicit about acceptance of the GPL. Nothing at all.

Neither EULA's or the GPL obtain a user's explicit acceptance of the terms of the license. Both make the assumption that the act of installing and/or redistributing the product amounts to implicit acceptance of the licensee.

The GPL flat out says:

"You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."

That's not implicit, that explicit. You haven't signed anything but if you redistribute the software, anything other than acceptance of the license is breaking the law. So you have either explicitly accepted the license or you have explicitly choosen to break the law. The GPL doesn't even need to come up in court if someone isn't following it's terms, it's irrelevant. No matter license software is under the penalties for copyright infringement will be the same, the party will be enjoined from further distribution and, potentially, will be fined damages. If the infringement meets the bar for criminal copyright infringement then you could also send up with a lengthy jail sentence. But that's it, either you explicitly accept the license or you explicitly break the law. Your choice.

Reply Score: 2

"code is meant to be broken"
by kefkathecruel on Tue 21st Feb 2006 16:56 UTC
kefkathecruel
Member since:
2006-01-17

That's about the stupidest thing I've ever heard. That's like saying automobiles are created to crash. Computers are created to catch on fire. I wonder what kensal's profession is and how he would fancy somebody saying the whole point of his efforts is meant to be destroyed/damaged/changed without his permission.

All you GNU fanbois make me laugh. Wahhhh, you must follow our GPL!!!
Wahhhhh! You can't make us agree to your EULA!

Like somebody else said you can't have your cake and eat it too. Either all EULAs are enforceable or all EULAs are not enforceable.

Reply Score: 0

RE: "code is meant to be broken"
by archiesteel on Tue 21st Feb 2006 17:02 UTC in reply to ""code is meant to be broken""
archiesteel Member since:
2005-07-02

Like somebody else said you can't have your cake and eat it too. Either all EULAs are enforceable or all EULAs are not enforceable.

Not necessarily, but that's irrelevant. The GPL is not a EULA. You don't have to agree to the GPL to use the software.

Reply Score: 1

A Question For The Masses
by kefkathecruel on Tue 21st Feb 2006 17:01 UTC
kefkathecruel
Member since:
2006-01-17

If a EULA was contained in the shrinkwrap between the back of the box and the plastic - would that make them more agreeable to you as their content would be immediately readable?

One valid complain against EULAs is that most companies don't accept returns of opened packages. That is the only real change. If they began plastering it on the back of the box or on an insert between the plastic/box ... would that change the opinions of some on the matter?

Reply Score: 1

Bullpuck
by kefkathecruel on Tue 21st Feb 2006 17:04 UTC
kefkathecruel
Member since:
2006-01-17

The GPL isn't a EULA? Huh. Funny. The GPL is often referred to as a "license". While it may be more tuned toward developers it would seem that developers are the intended end users of the Gnu Public License. It can't be a license and not be a license. GPL == GNU PUBLIC LICENSE. It is a license, it is expected that all users of GPL comply with it therefore it is an end-user license agreement - just with a different category of end-user.

Reply Score: 1

RE: Bullpuck
by rhavyn on Tue 21st Feb 2006 18:07 UTC in reply to "Bullpuck"
rhavyn Member since:
2005-07-06

The GPL isn't a EULA? Huh. Funny. The GPL is often referred to as a "license". While it may be more tuned toward developers it would seem that developers are the intended end users of the Gnu Public License. It can't be a license and not be a license. GPL == GNU PUBLIC LICENSE. It is a license, it is expected that all users of GPL comply with it therefore it is an end-user license agreement - just with a different category of end-user.

So because both the GPL and EULA have the work license in them that makes them the same thing. Right, got it. Of course that is even sillier then the "you implicitly agree to both of them argument", but what do I know. And, FYI, the GPL flat out says "[a]ctivities other than copying, distribution and modification are not covered by this License; they are outside its scope." So end users of any category don't need to agree with it. It doesn't matter who you are, you can use GPL'd software all you want and not agree with the license. You can pretend the GPL doesn't even exist. Furthermore, the GPL goes on to state (and this is why there is no implicit agreement and why this whole EULA is the same as the GPL argument is dumb):

"You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."

There, see the GPL even says you aren't required to accept the license. That is the text from section 5 if you want to go and double check. But, as it quite clearly says, if you don't choose to accept the license and you copy, modify or redistribute the software anyways then you're breaking the law.

Reply Score: 2

RE: Bullpuck
by archiesteel on Tue 21st Feb 2006 18:46 UTC in reply to "Bullpuck"
archiesteel Member since:
2005-07-02

The GPL isn't a EULA? Huh. Funny. The GPL is often referred to as a "license".

So is a driver's license. That doesn't make them similar.

It can't be a license and not be a license. GPL == GNU PUBLIC LICENSE.

Actually it's General Public License. And it is a license. But EULAs aren't. They're "license agreements", not licenses, and the two are completely different from a legal point of view.

It is a license, it is expected that all users of GPL comply with it

No. The GPL doesn't concern itself with "use" of the software at all. It poses no restricution on software use, or end-users.

Note: redistribution is not "use" as defined by copyright law. You are welcome to use copyrighted material, as long as you don't redistribute it.

You semantics game do not hold up to scrutiny, especially not from a legal point of view. Please learn more about copyright law before spreading these false statements any further.

Reply Score: 1

bah
by kefkathecruel on Tue 21st Feb 2006 17:07 UTC
kefkathecruel
Member since:
2006-01-17

Even if the mechanics of how your rights are dictated to you are different between GPL and every other EULA it is still a matter of dictating user's rights. Quit acting like GPL isn't a license. Either require to the GPL or don't copy/use our software. It's really that simple. That is a EULA whether you like it or not.

Reply Score: 1

RE: bah
by rhavyn on Tue 21st Feb 2006 20:48 UTC in reply to "bah"
rhavyn Member since:
2005-07-06

Even if the mechanics of how your rights are dictated to you are different between GPL and every other EULA it is still a matter of dictating user's rights.

By starting with a false premise your entire argument is, by definition, false. Your false premise is that the GPL dictates a user's rights. It doesn't. Copyright law restricts a user's rights. The GPL expands the rights a user has under copyright law. This is why the GPL isn't a EULA, this is why you aren't implicitly accepting it. If you decide that you're happy with the default set of rights you have under copyright law then you can pretend the GPL doesn't exist. It doesn't affect you, it doesn't apply to you, it just doesn't matter. There is no need to agree to anything. Just follow the law. Now, if you want to do something which the law doesn't allow you to do by default, you need permission from the copyright owner in the form of a contract, the copyright license. The GPL is such a license. So, at that point where you decide to do something which the law doesn't allow you have three choices for a work licensed under the GPL

1. Explicitly accept the terms of the GPL.
2. Attempt to negotiate a different license.
3. Do neither 1 or 2 and commit a crime.

But until you decide you want to do something not allowed by default, the GPL may as well not exist because it doesn't apply to you.

Thus, since the premise of your argument is false, your entire argument is equally false.

Reply Score: 2

And for the record ...
by kefkathecruel on Tue 21st Feb 2006 17:15 UTC
kefkathecruel
Member since:
2006-01-17

The existence of LGPL proves that GPL is a EULA. LGPL was designed so that devs could create libraries without having to expose their source. On the other hand if you use a GPL'd and not an LGPL'd library you have to comply with the license e.g. publish your source code if you intend to distribute it.

The ideals of the GPL and free/open source software are inherently good however the GPL tries to control people just the same.

All why I'm a BSD license kinda cat. ;)

Reply Score: 0

One Last Thing
by kefkathecruel on Tue 21st Feb 2006 17:20 UTC
kefkathecruel
Member since:
2006-01-17

The existence of LGPL proves that GPL is a EULA.

should read as

The existence of LGPL proves that GPL is effectively a EULA.

***

Anyways ... I woke too early and posted too much before drinking coffee. I apologize for both the quantity as well as lack of clarity in my posts. ;)

Reply Score: 1

RE: One Last Thing
by rhavyn on Tue 21st Feb 2006 18:14 UTC in reply to "One Last Thing"
rhavyn Member since:
2005-07-06

The existence of LGPL proves that GPL is a EULA.

should read as

The existence of LGPL proves that GPL is effectively a EULA.

***

Anyways ... I woke too early and posted too much before drinking coffee. I apologize for both the quantity as well as lack of clarity in my posts. ;)


Does the existance of the CDDL prove that the GPL was effectively having an affair with the MPL? Because that line of reasoning makes about us much sense as your LGPL proves the GPL is a EULA argument.

Reply Score: 2

meh
by kefkathecruel on Tue 21st Feb 2006 18:19 UTC
kefkathecruel
Member since:
2006-01-17

EULA is an acronym for "end-user license agreement". The operative term for all intents and purposes is "license". GPL is an acronym for GNU Public License wherein "license" is the operative term for all intents and purposes.

Copying, distribution, and modification are covered under Apple's EULAs. In addition they add a passage addressing the usage of their software on various systems. If those terms are both legal under both licenses then it seems to me that any additional clauses would also be legal.

You aren't required to accept the Apple license either. Just don't use the software. Of course that leads to the real issue of returning an opened software package which is something most stores won't allow. That is an issue I won't touch other than for my earlier suggestions.

The differences, so much as I can see, are limited at best.

The GPL compartmentalizes the user community and assigns them differing rights.

Apple governs general usage.

Apple also insists on additional/different clauses being accepted.

They are both licenses. They are both meant to apply to wide spectrums of users.

A license is a license it would seem. ;)

Reply Score: 1

RE: meh
by rhavyn on Tue 21st Feb 2006 18:50 UTC in reply to "meh"
rhavyn Member since:
2005-07-06

EULA is an acronym for "end-user license agreement". The operative term for all intents and purposes is "license". GPL is an acronym for GNU Public License wherein "license" is the operative term for all intents and purposes.

Right, we got it the first time. Everything which has the word license in it is the same as a EULA.

Copying, distribution, and modification are covered under Apple's EULAs. In addition they add a passage addressing the usage of their software on various systems. If those terms are both legal under both licenses then it seems to me that any additional clauses would also be legal.

Apple's license reaffirms copyright law by stating you can't do those things and then they add additional restrictions on how you can use the software. And you need to agree with that license in order to use the software. Where does the GPL say you have to agree with it under any circumstances?

You aren't required to accept the Apple license either. Just don't use the software. Of course that leads to the real issue of returning an opened software package which is something most stores won't allow. That is an issue I won't touch other than for my earlier suggestions.

But if you don't agree with Apple's license you have to return the software. If you don't agree with the GPL then you don't agree with the GPL. Nothing happens. Absolutely nothing. How are they the same if in one case not agreeing causes you to lose the ability to use the software and in the other case not agreeing does nothing.

The differences, so much as I can see, are limited at best.

Obviously, I mean they both have the word license in their names, how could they be different?

The GPL compartmentalizes the user community and assigns them differing rights.

That's odd, where does the GPL give different rights to a certain set of users? Please provide the section number.

Apple governs general usage.

The GPL doesn't govern usage at all. But they both have license in the name so that difference must not exist.

Apple also insists on additional/different clauses being accepted.

They are both licenses. They are both meant to apply to wide spectrums of users.

A license is a license it would seem. ;)


Yes, I mean when you distill it to it's core, that being the question of whether or not something has the word "license" in it, they must all be the same.

Hey, since I have a "drivers license" which also has the word license in it and it also has a list of things I can and can't do, does that make it effectively a EULA too?

Reply Score: 2

RE[2]: meh
by archiesteel on Tue 21st Feb 2006 18:58 UTC in reply to "RE: meh"
archiesteel Member since:
2005-07-02

Actually, I'll let rhavyn respond, he makes a better case than me... :-)

Reply Score: 1

RE: meh
by archiesteel on Tue 21st Feb 2006 18:56 UTC in reply to "meh"
archiesteel Member since:
2005-07-02

EULAs aren't licenses in the legal sense, and the legal sense is the important one here.

The fact that copying, distribution and modificiation are mentioned in Apple EULAs is superfluous - this is already covered by copyright law, they're basically restating it. That, however, doesn't meant that the rest of the EULA is valid.

I can write a paragraph that says "The sky is blue. Unicorns exist." The fact that the first part of the paragraph is true doesn't mean the whole of it is true.

Again, as others have mentioned, the GPL is a true license, in which it provides additional rights to individuals, rights which they wouldn't have under copyright law. This is what a license does. It does not concern itself with how the copyrighted material is used by the individual (as long as that use doesn't include copying and/or redistributing).

EULAs, on the other hand, are designed to dictate how the software is used by the individual. As such they have nothing to do with copyright law (because they concern stuff that don't have anything to do with copying/redistributing). Considering that people can usually do what they want with something they have bought (as long as they don't break any laws), then it is safe to say that EULAs, which are not licenses, stand on shaky legal ground indeed.

Reply Score: 1

RE: meh
by Morin on Tue 21st Feb 2006 20:08 UTC in reply to "meh"
Morin Member since:
2005-12-31

> You aren't required to accept the Apple license either.
> Just don't use the software. Of course that leads to
> the real issue of returning an opened software package
> which is something most stores won't allow. That is an
> issue I won't touch other than for my earlier
> suggestions.
>
> The differences, so much as I can see, are limited at
> best.

No, I could just as well not agree to the EULA and use the software anyway, because the EULA would have to be negotiated *before* buying the software. Since it wasn't negotiated, clicking on "I agree" has no legal meaning. This is AFAIK the situation in Germany, and if I read correctly in this thread then the situation in the UK is even stricter: Apple would break laws if they told you anything else.

Things would be different if people had to sign (and I mean *sign* with a real pen on real paper) the EULA at the time they buy the software. But this isn't the case.

There's however no way to distribute closed-source software derived from GPL'ed software and evade copyright law. If you find a way, I'd be interested.

- Morin

Reply Score: 2

Rhavyn Still Doesn't Get It
by enloop on Tue 21st Feb 2006 21:12 UTC
enloop
Member since:
2005-11-13

Look, this is simple. A license is a license. If the licensor can't demonstrate that the licensee has agreed to be bound by the license, then the license cannot be enforced.

People who release software under the GPl certainly believe that its users have accepted the terms of that license. If not, why bother to have the GPL in tghe first place?

If you think otherwise, perhaps your attention would be better directed elsewhere, because it certainly appears that you are denying that people who use GPL'd code are obligated to abide by the terms of the GPL.

And, one more time, the noise about copyright has nothing to do with enforcing a license. If you litigate against someone one based on copyright law, you are attempting to enforce copyright law, not a license.

Reply Score: 1

RE: Rhavyn Still Doesn't Get It
by archiesteel on Tue 21st Feb 2006 22:56 UTC in reply to "Rhavyn Still Doesn't Get It"
archiesteel Member since:
2005-07-02

Look, this is simple. A license is a license.

EULAs are not licenses. A license gives you the right to do something which otherwise would be illegal. It is not illegal to use software you have bought*, and yet the EULAs claim to impose restrictions on those rights. As EULAs do not grant rights but take them away, they can therefore not be considered licenses.

People who release software under the GPl certainly believe that its users have accepted the terms of that license.

No, they don't. The GPL only applies to copying and redistributing, i.e. actions which are normally forbidden by copyright law (beyond simple "fair use"). The GPL does not apply to use of the software.

If you think otherwise, perhaps your attention would be better directed elsewhere, because it certainly appears that you are denying that people who use GPL'd code are obligated to abide by the terms of the GPL.

People who use GPL'd software are not obligated to abide by the terms of the license, because in fact the license doesn't concern itself with how the software is used.

I hereby proclaim that I am not abiding by the terms of the GPL in my use of the KDE desktop. Of course, I'm not copying or redistributing it, so my proclamation simply has no meaning.

And, one more time, the noise about copyright has nothing to do with enforcing a license.

It has. Licenses grant the power to do something that would otherwise be forbidden. When dealing with IP licences, the laws that normally forbids you to do these things are either Copyright laws, Patent laws or Trademark laws. In the context of the GPL it's copyright law. Of course, EULAs - not being licenses at all - do not have anything to do with copyright law.

If you litigate against someone one based on copyright law, you are attempting to enforce copyright law, not a license.

You are enforcing copyright law because the other party has not agreed to the license.

Again, your initial premise has been demonstrated to be false, and yet you continue to repeat it as if it will somehow become true. It won't.

----
*From Wikipedia: "In the U.S., the first-sale doctrine, Softman v. Adobe [1] and Novell, Inc. v. CPU Distrib., Inc. rule that software sales are purchases, not licenses, and resale, including unbundling, is lawful regardless of a contractual prohibition."

Reply Score: 1

RE: Rhavyn Still Doesn't Get It
by rhavyn on Tue 21st Feb 2006 23:06 UTC in reply to "Rhavyn Still Doesn't Get It"
rhavyn Member since:
2005-07-06

Look, this is simple. A license is a license. If the licensor can't demonstrate that the licensee has agreed to be bound by the license, then the license cannot be enforced.

Sure, and that has absolutely no relevance to the GPL.

People who release software under the GPl certainly believe that its users have accepted the terms of that license. If not, why bother to have the GPL in tghe first place?

People who release software under the GPL want to give their users rights which they otherwise wouldn't have under copyright law. The only way to give users those rights and maintain copyright is to provide the users some form of the license. The GPL is one possible license.

If you think otherwise, perhaps your attention would be better directed elsewhere, because it certainly appears that you are denying that people who use GPL'd code are obligated to abide by the terms of the GPL.

People who use GPL'd software aren't bound by the terms of the GPL. Only people who copy, redistribute or modify the code need to worry about the GPL.

And, one more time, the noise about copyright has nothing to do with enforcing a license. If you litigate against someone one based on copyright law, you are attempting to enforce copyright law, not a license.

You really seem to be under the mistaken assumption that you would be trying to force someone to follow the terms of the GPL if you sued them for not following it's terms. That's not what would happen at all. You would just be suing them for copyright infringement. The penalty for not following the GPL is you can no longer copy, redistribute or modify the software, i.e. you go back to having to follow copyright law. You don't "enforce" the GPL, you "enforce" copyright law by saying "follow the terms of the license you have for redistribution, copying and modification or cease and desist." This is completely 100% the same as if you had a contract with a company to license their proprietary code.

Reply Score: 2

Refuting Rhavyn
by enloop on Wed 22nd Feb 2006 00:10 UTC
enloop
Member since:
2005-11-13

The portions of the GPl you've quoted are terms and provisions of the GPL. The GPL may assert that I don't have to accept the license, but that itself is a provision of the license.

I don't have to accept the terms of Microsoft's EULA, either. If I don't, however, and install and use the software, MS will still hold me to the terms of the license. Why? Because I've taken an action -- install and use -- that their license defines as indicating my acceptance of the EULA's binding terms.

The GPL does the same thing. The licensor assumes the licensee is bound to the terms of the GPL by the act of "modifying or distributing the Program".

That's exactly my argument. Both kind of licenses make the assumption that the licensee implicitly agrees to be bound by the terms of the license as soon as he takes certain license-defined actions.

Reply Score: 1

RE: Refuting Rhavyn
by rhavyn on Wed 22nd Feb 2006 01:09 UTC in reply to "Refuting Rhavyn"
rhavyn Member since:
2005-07-06

Wow, you're desperate to show everyone how badly you don't understand this issue.

The portions of the GPl you've quoted are terms and provisions of the GPL. The GPL may assert that I don't have to accept the license, but that itself is a provision of the license.

Right, the very license terms itself say you don't need to accept the license, so why are you still arguing about this implicit acceptance crap? Don't accept the GPL, no one will make you, no action on your part will cause you to.

I don't have to accept the terms of Microsoft's EULA, either. If I don't, however, and install and use the software, MS will still hold me to the terms of the license. Why? Because I've taken an action -- install and use -- that their license defines as indicating my acceptance of the EULA's binding terms.

Which is completely irrelevant to the GPL.

The GPL does the same thing. The licensor assumes the licensee is bound to the terms of the GPL by the act of "modifying or distributing the Program".

Yes, the licensor assumes that you've accepted the license, you can freely choose to not accept it.

That's exactly my argument. Both kind of licenses make the assumption that the licensee implicitly agrees to be bound by the terms of the license as soon as he takes certain license-defined actions.

No, both don't. Don't agree with the GPL. Infringe on the GPL and get take to court. You'll be asked if you agreed to the GPL, you say no and that's it. No one will mention the GPL again. There is nothing causing you to implicitly accept the GPL. NOTHING. It's assumed that you accepted the GPL since there is no signed contract, but no one is forcing you to accept it, implicitly or otherwise.

You really, really, really need to figure out the difference between assuming that you're following the rules because not doing so would be breaking the law and "implicitly accepting a contract." They are two, totally different things. Because at this point I've pretty much decided you're an idiot. You've had multiple different explanations of why you're wrong but apparently you're incapable of learning.

Again, YOU ARE NOT IMPLICITLY AGREEING TO THE GPL.

Reply Score: 3

RE: Refuting Rhavyn
by rhavyn on Wed 22nd Feb 2006 01:12 UTC in reply to "Refuting Rhavyn"
rhavyn Member since:
2005-07-06

And, just so you know, refuting would imply that you are providing reasons why my arguments are wrong. Simply repeating the same incorrect argument over and over and over and over again isn't refuting anything. It is, however, making you look stupid.

Reply Score: 2

RE[2]: Refuting Rhavyn
by archiesteel on Wed 22nd Feb 2006 02:12 UTC in reply to "RE: Refuting Rhavyn"
archiesteel Member since:
2005-07-02

Simply repeating the same incorrect argument over and over and over and over again isn't refuting anything. It is, however, making you look stupid.

Amen, brother.

Reply Score: 1

RE: Refuting Rhavyn
by archiesteel on Wed 22nd Feb 2006 02:11 UTC in reply to "Refuting Rhavyn"
archiesteel Member since:
2005-07-02

The GPL may assert that I don't have to accept the license, but that itself is a provision of the license.

So, if I refuse the license then I have to accept it, because it says that I can refuse it...nice paradox you got there - except that the statement that you don't have to accept the license is not actually a provision of the license, it is simply stating fact (i.e. it is informing the reader of the rights he already has).

enloop, you've been demonstrated wrong, and yet you continue to use logical fallacies to prop up your (erroneous) initial statement. There's only two people left reading this, me and rhavyn, and we have both provided convincing counter-arguments while you have simply reformulated yours while continuing to base it on false premise. I'm beginning to think that all you want to do is argue for argument's sake. Personally, the subject is closed for me: EULAs rest on shaky legal ground, while the GPL stands strong.

I'll try one last time to get through your thick web of logical fallacies with an case example: if I break Microsoft's EULA and they decide that they should sue me, what laws would apply? I want you to tell me exactly which charges they would bring up against me. P.S. this is a state that does not subscribe to UCITA, i.e. the vast majority.

I, on the other hand, can tell you what law you'd be breaking if you distributed modified GPL'ed software without providing the source: you wouldn't be breaking the GPL, you'd be committing copyright infringement, and would be prosecuted accordingly.

If you can't understand the fundamental difference between the two, and therefore understand that EULAs are NOT similar to the GPL (and consequentially, invalidating the former will do NOTHING to the latter), then I'll be forced to assume that you are not discussing in good faith, and will end this exchange immediately.

Reply Score: 2

Re: Rhavyn
by enloop on Wed 22nd Feb 2006 02:22 UTC
enloop
Member since:
2005-11-13

>>"Yes, the licensor assumes that you've accepted the license..."

And that's all I've been saying.

What happens after someone violates the terms of the license is not what I've been talking about.

Everything you've said, otherwise, is so much extraneous blovating.

Why is it that some members of the open source crowd are so defensive that they imagine people are attacking open source and free software when they aren't? I only pointed to a point of commonality between EULA's and the GPL, which, at long last, you seem to have accepted.

Reply Score: 1

re: archiesteel
by enloop on Wed 22nd Feb 2006 02:29 UTC
enloop
Member since:
2005-11-13

>> "... EULAs rest on shaky legal ground, while the GPL stands strong."

What gave you the impression that I was talking about the legality of either one? You've been wandering all over the place refuting things you only imagine I said.

Yet again, I've said is that, in the case of both the GPL and EULA's, the licensor assumes the licensee has accepted the license. That's a point of commonality. If you are so blinded by your own ideology that you can't see that, i suggest you return to the issue in some years after you've matured a bit and lost some of your illusions.

Reply Score: 0

RE: re: archiesteel
by Morin on Wed 22nd Feb 2006 13:39 UTC in reply to "re: archiesteel"
Morin Member since:
2005-12-31

> What gave you the impression that I was talking about
> the legality of either one? You've been wandering all
> over the place refuting things you only imagine I said.

Enloop, you original comment was this:

> However, those who support Maxxus should remember that
> they are essentially arguing that the act of acquiring
> software does not constitute a legal obligation to
> abide by the license terms of the software issuer.
> Those who support things like the GPL ought to ponder
> that. If Apple can't enforce its EULA, then there's not
> much hope for enforcing the GPL.

You have been explained now for several times why the GPL can be enforced - because it is not an accepted license, but a voluntary exception to copyright law, granted to you by the author. You were simply mistaken, and we explained you several times why.

Telling us now that you never talked about the legality of GPL vs. EULAs is simply a lie, if you bother to look what you have initially written. If you had any other intention than simply trolling around, you have failed, bcause none of us will buy your faulty arguments. Even those among us who plain hate the GPL for whatever reasons have little doubt that it will stand strong in court.

My suggestion for you is (1) actually read what people are telling you, because most of them have a point, (2) stop trolling, (3) stop lying, and (4) get a life.

My suggestion for all others is to ignore this idiot.

- Morin

Reply Score: 2

RE: re: archiesteel
by archiesteel on Wed 22nd Feb 2006 16:16 UTC in reply to "re: archiesteel"
archiesteel Member since:
2005-07-02

What gave you the impression that I was talking about the legality of either one?

You did, in your first post:

"However, those who support Maxxus should remember that they are essentially arguing that the act of acquiring software does not constitute a legal obligation to abide by the license terms of the software issuer. Those who support things like the GPL ought to ponder that. If Apple can't enforce its EULA, then there's not much hope for enforcing the GPL."

You've been playing semantics in your last posts, trying to get out of the hole you dug for yourself, but you're not fooling anyone.

BTW, enforcing the GPL is easy, it's calling suing someone for copyright infringement. You haven't been able to tell me what laws I'd be breaking if I refused to submit to a EULA...

If you are so blinded by your own ideology that you can't see that, i suggest you return to the issue in some years after you've matured a bit and lost some of your illusions.

Ah, ad hominem attacks - can't get out of it through rational debate, so you attack my character and credibility...thanks for proving to me that you're out of arguments!

BTW, it doesn't matter how old and mature I am, what matters is the legal reality of these things, and your original assertion has been disproved time and time again. You should be the one coming back to the issue later, once you've understood copyright law and the fundamental differences between EULAs and licenses such as the GPL.

Reply Score: 1