Linked by Thom Holwerda on Fri 25th Apr 2008 15:01 UTC
Legal When PsyStar announced they would be offering their own Macintosch clone, pre-installed with Apple's Mac OS X Leopard, they opened up a whole can of worms. Despite the fact that the company itself was shrouded in mystery and dubiousness, the possible implications of their actions sparkled an interesting debate here on OSNews as well as other discussion venues: can PsyStar and its users just discard Apple's End User License Agreement for Leopard? Instead of relying on my own limited layman's understanding of Dutch Common Law, I decided to contact Dutch legal experts, and ask for their opinions on Apple's EULA, and EULAs in general.
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END USER licence agreement
by mallard on Fri 25th Apr 2008 16:04 UTC
mallard
Member since:
2006-01-06

Don't EULAs only apply to end users? (I remember seeing some case referring to that, but I can't find it now)
Since Psystar is selling the software (and hardware) on, surely the EULA would not apply to them.

Secondly, the article skimmed over the definition of "Apple-labelled computer", assuming it meant "made by apple". Could I not satisfy this requirement simply by scrawling "apple" on a post-it or using one of the stickers that came with my iPod?

Additionally, the legal systems and practices in continental Europe tend to be significantly different, influenced by Roman Law, as opposed to English Law (the system which most influences US Law).
Since English Law tends to take a more literal approach to the interpretation of statutes and contracts, I still find it unlikely that EULAs would be able to satisfy English-based contract law.

Reply Score: 3

RE: END USER licence agreement
by MrWeeble on Fri 25th Apr 2008 16:18 UTC in reply to "END USER licence agreement"
MrWeeble Member since:
2007-04-18

Psystar was sold the software, so at the point that they install they are the end user, when they resell it the end user changes. If this were not the case then I could violate a EULA as much as I wanted provided I intended to sell the machine to someone else after a couple of years.

Adding Apple to the case would be a violation of trademark law.

I would suggest that a loophole is in the "agree" section. If the software can be extracted from the install media, and installed on hardware without using the standard installer, then the prompt to agree will never be shown. The article states that "If you acquire software via legal means, you technically don't need an EULA at all". I would be interested in knowing whether this would be valid.

Reply Score: 3

RE[2]: END USER licence agreement
by mallard on Fri 25th Apr 2008 16:39 UTC in reply to "RE: END USER licence agreement"
mallard Member since:
2006-01-06


Adding Apple to the case would be a violation of trademark law.


Surely it's only a violation of trademark law if I'm using "apple" as a trademark?

If I write "apple" on my own personal computer, or even if I stick an iPod-supplied Apple sticker on my Thinkpad, then surely I am not using "apple" as a trademark, since I am not trading?

Similarly, if PsyStar wrote "apple" on a sicky-label and put it on the inside of the case and told nobody, they would not be using "apple" as a trademark, since it is invisible to anybody until long after purchase(the trade)?

Reply Score: 3

RE[2]: END USER licence agreement
by droidix on Fri 25th Apr 2008 22:15 UTC in reply to "RE: END USER licence agreement"
droidix Member since:
2008-03-13


I would suggest that a loophole is in the "agree" section. If the software can be extracted from the install media, and installed on hardware without using the standard installer, then the prompt to agree will never be shown. The article states that "If you acquire software via legal means, you technically don't need an EULA at all". I would be interested in knowing whether this would be valid.


I would like to hear more opinions on this as the specific method mentioned is actually used by some of the OSx86 guys to install Leopard. They use a shareware app named Pacifist that extracts and installs the packages directly from the DVD without their ever being a license to accept.

Now this shareware is for Mac OS X, so it might be questionable how they already have a working copy installed (except in the case of using a real mac to extract the files and then installing the drive in a generic PC).

But, a clever coder could write an open source version that runs on Linux. Now imagine using a Linux live CD tailored specifically for installing OS X on PCs. The user is just prompted to insert their retail Leopard DVD after the live CD has finished the groundwork like partitioning the hard drive and installing the bootloader.

Reply Score: 3

v RE[3]: END USER licence agreement
by ecruz on Sat 26th Apr 2008 01:06 UTC in reply to "RE[2]: END USER licence agreement"
RE[4]: END USER licence agreement
by droidix on Sat 26th Apr 2008 02:34 UTC in reply to "RE[3]: END USER licence agreement"
droidix Member since:
2008-03-13

Because of people like you is that Linux dos not get the support of the hardware and software manufacturers. Always trying to steal or rip-off something.
If you Linux guys like OS X so much, then, have your people write code that resembles it. By the way, I remember reading a long while ago in the Gnome web site, that their intent was to create a desktop that would look like Apple. Go figure!


I specifically mentioned retail copy of Leopard, implying that it was paid for and not pirated. Please don't always assume Linux user == pirate.

Reply Score: 2

RE: END USER licence agreement
by Manik on Fri 25th Apr 2008 19:42 UTC in reply to "END USER licence agreement"
Manik Member since:
2005-07-06

An "Apple-labelled computer" would be a computer labelled by Apple. Not by you.

Put a sticker on your car, and see if it makes it an Apple car. Or an "Apple-labelled car".

Reply Score: 4

RE: END USER licence agreement
by m34ch on Sat 26th Apr 2008 23:16 UTC in reply to "END USER licence agreement"
m34ch Member since:
2007-02-01

Don't EULAs only apply to end users? ...Since Psystar is selling the software (and hardware) on, surely the EULA would not apply to them.


regarding Psystar's status, i think the problem with calling them something other than an end-user is that their status is partly what's at issue here.

simply reselling something you bought doesn't mean you're not an end user. that just means you're having a yard sale.

i think Psystar is trying to call themselves an OEM, and Apple would certainly argue that. i would say that since the terms of the EULA on their face forbid Psystar from being an OEM (validity of those terms notwithstanding), they kind of [have to be] an end user until it's cleared up whether or not they're allowed to be anything else.

Reply Score: 1

Somes clauses don't stand everywhere.
by Ishan on Fri 25th Apr 2008 16:17 UTC
Ishan
Member since:
2007-10-24

In France you can't "force sell" products together (it's purely illegal even if Microsoft is doing it for years with Windows hehe).
So, in theory, you can buy Mac OSX and install it on whatever computer you want, Apple or not, mainly because that clause imply if you buy OSX you must have or buy an Apple computer to use it which is illegal over here.
That's the way I understand it.
The same goes if I already have a Mac OSX license, and want to buy a Mac, I should be able to buy it without OSX.

Edited 2008-04-25 16:18 UTC

Reply Score: 4

Manik Member since:
2005-07-06

Yep, there is that law prohibiting joint sales. Probably one of the least enforced in France. Just try to buy a computer without Windows installed. Tell the seller it is illegal to force you to buy Windows (or OS X for that matter).

I tried. I even found a seller who accepted to take out the hard disk and put another one without Windows. But the computer without Windows ended costing a lot more than the computer with Windows.

Reply Score: 2

Anacardo Member since:
2005-10-30

Well this depends on how MacOSX and the Mac are marketed. If a Mac is sold as a "personal computer", then you have a point. If otherwise is marketed as a platform, a combination of both hardware and software, then your assumptions are not valid. In Italy for example, Macintoshes were always marketed as platforms and as such the idea of buying a mac without osx was never considered viable or legal. This is reflected on pricing as well. Macosx is priced relatively low (for the low numbers compared to windows counterparts) because part of the developement costs were already heavily charged on the original mac purchase.

Reply Score: 3

unclefester Member since:
2007-01-13

Australia has the same rules. We have white box PC sellers in almost every suburb and PCs are always available with out an OS. White box PCs are also far cheaper than mainstream brands.

Reply Score: 1

rajan r Member since:
2005-07-27

So, if I want cereal, but I don't want the box, could I discard it and demand the supermarket charge me less because I'm not buying the box? What about if I go to a car dealership and say, "Hey, I don't want your tires - give me a cheaper car sans tires".

Tying (or "force-sell") isn't subject literal application on every case. It is probably more for unreasonable cases, where products tied together are unrelated - like, when you buy a car, they throw in a fridge for you. Or a bookstore forced to buy unwanted books to stock up on bestsellers.

I'd be hard pressed to convince a court that Mac OS X is unreasonably tied to Apple-labelled computers. And even in civil law countries, judges are mindful of the precedence that will be set - if an OS and a computer is unreasonably bundled, maybe OSes would be forced to strip out, say, printer drivers?

Reply Score: 1

Good job
by pxa270 on Fri 25th Apr 2008 16:31 UTC
pxa270
Member since:
2006-01-08

Thom, I'm glad you took the time to actually seek advice from legal professionals. Too often laymen and tech minded people don't bother to find out what the law actually states, or how it is commonly interpreted by the courts, but operate on how they feel what the law ought to be. As bad as that attitude is when posting on anonymous internet discussions, it's infinitely worse when there is a possibility that you might actually wind up in court.

Reply Score: 7

Ever thought of going into advertising?
by hhas on Fri 25th Apr 2008 16:57 UTC
hhas
Member since:
2006-11-28

Dutch law states that telling a user that the conditions of use can be found at location xyz


Ja. Het werd tentoongesteld in de bodem van een afsluitbare rolcontainer vastzit in een leegstaande toilet met een bordje op de deur te zeggen: "Pas op voor de Leopard."

Reply Score: 1

Finnish Case
by _LH_ on Fri 25th Apr 2008 16:58 UTC
_LH_
Member since:
2005-07-20

There is actually a decision by the Finnish Supreme Court on EULAs. Their view was that when a consumer goes to a store and buys a product, they buy it and not license. And as such all EULAs are categorically not valid here. Though we need to remember that you can't make copies etc of your programs as they are nevertheless protected by copyright.

Reply Score: 5

RE: Finnish Case
by WereCatf on Fri 25th Apr 2008 17:26 UTC in reply to "Finnish Case"
WereCatf Member since:
2006-02-15

That's what I have been saying also but I am not exactly 100% sure anymore. It is indeed true that if EULA is in conflict with any of the finnish laws, those finnish laws override anything in the EULA ie. you are indeed allowed to make copies of software for personal/backup use, you are allowed to resell your copy of the software as long as you destroy all backups you may have, and so forth. But I started to think a few days ago while reading stuff that EULAs might actually be valid to a degree. I just don't know what kinds of things are allowed there. It seems that mostly any clause that somehow restricts one's freedom is actually invalid so there wouldn't be much left anyway that could be specified in an EULA.

Reply Score: 3

Comment by puenktchen
by puenktchen on Fri 25th Apr 2008 17:11 UTC
puenktchen
Member since:
2007-07-27

you can't speak of dutch "common law" - common law is the british case law and the derived law systems. iirc the dutch burgerlijk wetboek has been inspired by the napoleonic code civil which is heavily influenced by roman law.

psystar should move over to europe. i'm quite sure they'd be safe from apple's lawyers wrath in all member states of the european union because coupling two products together like this is illegal according to european competition and consumer laws.

ed: so the eula would even been illegal if the buyer signed it at the purchase.

Edited 2008-04-25 17:13 UTC

Reply Score: 1

RE: Comment by puenktchen
by Thom_Holwerda on Fri 25th Apr 2008 19:30 UTC in reply to "Comment by puenktchen"
Thom_Holwerda Member since:
2005-06-29

you can't speak of dutch "common law" - common law is the british case law and the derived law systems. iirc the dutch burgerlijk wetboek has been inspired by the napoleonic code civil which is heavily influenced by roman law.


The best translation I could find of burgerlijk recht (=civil law) was common law. Adding the adjective "Dutch" makes it clear it's not English Common Law I'm speaking of.

But yes, the term is troublesome.

Reply Score: 1

RE[2]: Comment by puenktchen
by puenktchen on Sat 26th Apr 2008 18:13 UTC in reply to "RE: Comment by puenktchen"
puenktchen Member since:
2007-07-27

The best translation I could find of burgerlijk recht (=civil law) was common law.


why not just civil law?

Reply Score: 2

sale of shiny discs
by mabhatter on Fri 25th Apr 2008 17:25 UTC
mabhatter
Member since:
2005-07-17

European courts are very shy on restrictions beyond copyright. Imagine if a cookbook maker said those recipes were only "licensed" for parties, in your home, of under 10 people... it's a BOOK silly. Why that was ever allowed. As long as you are not making copies of the shiny disk then you should be good.

I'm sure they've already secured a box of legally bought OSX disks from Apple. Under European rules, they can make the programs on the shiny disk do whatever they want, they are supplying one legally bought disc per machine so they are not violating copyright. It's just that US copyrights have FAR too much power over software you can "rip" your CDs legally to iPods but you can't hack your legally purchased OS DVD to run on 1 machine of your choosing. See how silly that is!

Reply Score: 3

RE: sale of shiny discs
by WereCatf on Fri 25th Apr 2008 17:34 UTC in reply to "sale of shiny discs"
WereCatf Member since:
2006-02-15

It's just that US copyrights have FAR too much power over software you can "rip" your CDs legally to iPods but you can't hack your legally purchased OS DVD to run on 1 machine of your choosing. See how silly that is!

I am a layman ( girl actually, silly english :O ) when it comes to laws but I have understood that here it is legal to hack, burn or whatever you may wish the copy of software you have bought as long as you don't break the copyright law by sharing those hacks or modified copies of the software. So atleast here it should be totally legal to install OSX on any computer you own, I just doubt you would be able to sell computers with hacked OSX pre-installed. You _could_ sell a computer and non-modified OSX together along with instructions on how to hack it yourself though.

Reply Score: 2

RE[2]: sale of shiny discs
by Doc Pain on Fri 25th Apr 2008 20:15 UTC in reply to "RE: sale of shiny discs"
Doc Pain Member since:
2006-10-08

[...] I have understood that here it is legal to hack, burn or whatever you may wish the copy of software you have bought as long as you don't break the copyright law by sharing those hacks or modified copies of the software.


This would be the case in Germany, too, as far as I do understand it. The legal term is "private backup copy" (private Sicherheitskopie) which allows you to duplicate, for example, installation CDs / DVDs for your individual use; regarding the intended use of these installation media, i. e. the installing process itself, you are required to have the license to do it (usually a shiny sticker on the back or the bottom of your computer) with the respective registration code. You even may give the duplicated media to someone else, as long as it is an 1:1 copy (no modifications), the person given the copy will of course need to have a license, too.

So atleast here it should be totally legal to install OSX on any computer you own, I just doubt you would be able to sell computers with hacked OSX pre-installed.


Well, I think so, too. In both regards.

You _could_ sell a computer and non-modified OSX together along with instructions on how to hack it yourself though.


This could be possible. The only situation interesting would be if it's allowed to sell these instructions ("how to do something that is not intended and may be illegal"), but you can surely sell a PC, a set of Mac OS X installation media, and give some sheets of printed paper as a "thank you present". :-)

Reply Score: 2

Other countries
by Carewolf on Fri 25th Apr 2008 17:42 UTC
Carewolf
Member since:
2005-09-08

Someone mentioned Finland. I know EULAs were tested in Danish law too, and rejected because they had to be presented prior to purchase and because mouse click are not binding signatures in Danish contract law.

I think I remember them being rejected in German supreme court too, and several other continental EU countries, but I don't have the reference.

Reply Score: 2

I agree
by Bounty on Fri 25th Apr 2008 18:27 UTC
Bounty
Member since:
2006-09-18

I think mabhatter's example is awsome. Last time we discussed this I tried to make similar examples. http://www.osnews.com/permalink?309697

Also what if they put OSX on the machine w/o clicking I agree? Maybe "I Agree" is the first thing that pops up when you boot it?

Reply Score: 1

two or three issues they didn't address
by alcibiades on Fri 25th Apr 2008 18:28 UTC
alcibiades
Member since:
2005-10-12

Thom, your guys seem not to have addressed some issues that would for sure come up in Anglo Saxon law, which is not about whether Eulas can be valid, but whether these particular provisions can be valid, in a Eula or not.

1) Is it an unlawful linked sale? The US competition law may be stricter than UK and other common law jurisdictions, but I'd like to see a clear legal opinion on this. The case mentioned in the Guardian lately was Data General 1984. Generally you cannot force people to buy A in order to get B, and you specifically cannot do it if you sell A independently but then forbid them to use it on anything but B.

2) Is it valid as a post sale restriction on use? Post sale restrictions on use are sometimes possible where public safety is an issue, but the question is whether installing on the identical set of components bought from a different supplier can be justified. This may be relevant to point 1 also.

For sure you would not get away with selling an electricity socket and along with it a "license" saying this could only be used with a certain kind of plug, if bought from the same supplier. Apple will be in a very weak position on this having gone to standard PC components, because the essential difference will not be the components, but where they are bought. I'm very sceptical anyone will get away with saying you can only run software on a set of components bought from me, and not the same components bought from someone else. Ask them this one!

3) Is it really not a sale? Your guys say you do not buy the software. True, you do not either buy the book. But you do buy a copy of it. The law on buying copies is fairly clear: its existed for a long time and has been applied to books and all sorts of printed material, to records, tapes, CDs, DVDs. Now, the law on what you may do in terms of copying in these cases is set by copyright. You can't copy except as authorized. But the law on what you can do with it is not set by this but by ordinary consumer rights. I doubt any Anglo Saxon court is going to say the supplier can claim its not a purchase of a copy just like a book is purchased, and so, if you don't violate copyright, they cannot tell you how to use it. Just like they can't tell you not to read that book in bed.

There is I think a UK case, don't recall which, where the buyer was held to have bought not licensed. I think there were tax implications. He claimed to have licensed, and lost.

Apple may sue, but I think they'd be wiser not to. They really do not want to get the Commission or the ECJ looking too hard either at Eulas or at post sales restraints on use. Or at linked sales for that matter.

Reply Score: 2

Thom_Holwerda Member since:
2005-06-29

You're assuming that post-sale restrictions are, by definition, unlawful. But, as I just explained in the article, you actually AGREED to the EULA, so in order to have parts of it nullified, you will need to prove to a judge that those parts are unreasonable, that you are not reasonably capable of fulfilling those obligations. And you'll have a very hard time doing that, according to my legal experts.

I don't know about other countries than The Netherlands, since I don't live there, nor intend to, ever. So, if you want an accurate idea of what it is like in your country - contact a legal expert. That's all I can give you.

Reply Score: 3

alcibiades Member since:
2005-10-12

"....you will need to prove to a judge that those parts are unreasonable...."

No, not in the US or the UK or probably Australia etc. You will only have to prove that those clauses are incompatible with either competition law or consumer protection law. In the UK, that will be the Sale of Goods Act and successors, the Competition Act, and also the law on unfair contracts. Unfair in Common Law is not the same as unreasonable in Code Napoleon.

Not a lawyer, but I don't think it has a hope of flying in the UK - the restraint, that is.

Reply Score: 3

This has been struck down before.
by jefro on Fri 25th Apr 2008 20:28 UTC
jefro
Member since:
2007-04-13

This is the same as claiming one can only use a "brand name" of oil in a "brand name" outboard motor.

If I purchase and I don't mean lease software I will do what I want with it.

"Apple's" only recourse is to not honor it's warranty, not threaten me.

Edited 2008-04-25 20:30 UTC

Reply Score: 1

elsewhere Member since:
2005-07-13

If I purchase and I don't mean lease software I will do what I want with it.


In the US, this is basically protected by the doctrine of first sale. There is enough precedent to suggest that purchasing software is a sale, not a license, which means that the software vendor has absolutely no recourse over what you do with the software after (respective of copyright laws, of course).

The content holders hate this, of course. They don't like people being able to sell software they no longer need, they don't like people being able to sell books they've finished reading to used bookstores, and they don't like people trading console games in at EB Games. All of this robs the content holders of incremental revenue they feel they are entitled to. They've tried to undo it, and they will continue to.

But as far as software goes, it is pretty much under the regulation of copyright law in most jursidictions. Copyright law does not come into effect until a protected work is distributed, so regardless of EULAs, the average user in the average free country is able to do whatever the fark they want with software they are legally in posession of, until the point where they touch copyright provisions regarding distribution.

I think the thing that surprised me most from reading the article, at least compared to my experience with Canadian/US law, is that North American laws generally do not permit citizens to "waive" their rights under the law. That is to say, that an EULA, no matter how well written or "reasonable", cannot coerce an individual into waiving entitlements provided to them. Getting back to my original point about doctrine of first sale, for instance, renders Apple's restriction against installing on non-Apple hardware invalid. Simply because the existing law says that if you are in legal posession of protected content, you can do whatever you want for personal use (again, subject to copyright law). You could hack OSX to run on a TRS-80 if you wanted, and Apple has no recourse. Though selling that TRS-80 with a hacked version of OSX would most likely violate copyright, since you've modified a protected work and are re-distributing it, and that likely touches upon the original issue. But as was pointed out in a previous post, transferring the media to someone else, and providing instructions or directions on how to modify it in order to run on the TRS-80 (or any other platform), would most likely be permissable in the eyes of the law. Once Apple has received remuneration for their content, they no longer determine what you do with it. Whether you resell it or hack it to pieces.

Sadly, though, Apple can bypass fair-use and similar protections by simply implementing some sort of encrypted protection in their software. If they decided to tie OSX into Intel's trusted computing infrastructure, for instance, to ensure that it only runs on an authorized system, then the DMCA would come into effect (at least for US users) and that bypasses the other provisions consumers have. The anti-circumvention provisions generally trump any other freedoms that consumers might otherwise exercise.

Putting that aside for a moment, EULAs rely on contract law, and software is governed by copyright law. So not only must EULAs conform to the requirements for contract validity if they are to have any effect (for instance, you must be of the age of majority to participate in a contract, which renders EULAs invalid for minors), but even then, the contract cannot force the user to waive entitlements under copyright law. In other words, Apple can't restrict a legally purchased copy of OSX to Apple platforms any more than a publisher can prevent selling a book to a used book store as a condition of sale. Doctrine of first sale trumps anything they try to work around in the EULA from that aspect (again, excluding the DMCA).

Anyways, just my North American perspective (well, CA/US, I can't claim experience with Mexican law). I have spoken to legal experts regarding somewhat related issues in the past, including our own in-house corporate counsel, so while I certainly won't claim to be an authority, I'm not entirely pulling this out of my butt, either... ;)

Just my 2c...

Edited 2008-04-26 06:24 UTC

Reply Score: 4

v You guys comments on EULAS
by ecruz on Sat 26th Apr 2008 01:00 UTC
Shrink Wrapped
by jptros on Sat 26th Apr 2008 01:42 UTC
jptros
Member since:
2005-08-26

In the US most if not all retailers will not let you return software once it has been opened. The EULA isn't visible on the box and I don't recall ever seeing any link to a EULA on a software box. I wonder how you can be bound by contract when you can't agree to the contract until after the product has been opened and thus you are not entitled to a refund in the case you do not agree with it? They have your money one way or another. What does the consumer have? It's almost bait and switch, you don't know what the EULA says until it's too late to get your money back.

Reply Score: 3

Comment by tupp
by tupp on Sun 27th Apr 2008 01:16 UTC
tupp
Member since:
2006-11-12

"In The Netherlands, an EULA constitutes as a contract, and as such, you need to treat an EULA according to Contract Law."

"Violating" an EULA is not a criminal offense. There are no criminal statutes nor legislation involved in an EULA (not even copyright) -- an EULA is just a civil contract. That is why it is called an end user license AGREEMENT.

So, it is not a crime to make a hackintosh, despite all of the whines from the dissuading Mac fanboys.

Reply Score: 1

Comment by melkor
by melkor on Sun 27th Apr 2008 13:47 UTC
melkor
Member since:
2006-12-16

I would argue that Dutch contract law (and many other countries) does not make sense, but then again, most *law* does not make common sense.

I would consider being able to only use said software on an Apple computer monopolistic and anti competitive, imagine if Microsoft said you could only use Windows on a MS made machine!!!

For this reason, I consider Apple a greater monopolist than Microsoft, even though it has a smaller market share.

It is quite obvious to me that the laws are made to protect big business, and not the individuals of the state in question, and this is in direct contravention to what a democratic government is elected for! Big business pays big money to buy it's legal way, let's consider the OOXML debacle. Those decisions were made by heads of government business related departments. Odd?

The sooner businesses are removed from the ability to influence governments and thus laws in any way, the better imho.

As an example, I recently posed this very question to Phase One in regards to Capture One pro. As far as they are concerned, I am not allowed to sell my copy of Capture One pro to another individual, i.e. license is not transferable. How unreasonable is this? It is a severe restriction of trade for starters. Why is software the ONLY industry that is not effectively governed by consumer bodies? I mean, let's imagine car manufacturer XYX said you can't resell their car!!! Why should software be any different?

Software laws must be introduced, and it must be policed far heavier than it is now. Software laws MUST be severely evened up to empower the consumer.

Period.

Dave

Reply Score: 2

Comment by jal_
by jal_ on Mon 28th Apr 2008 08:14 UTC
jal_
Member since:
2006-11-02

Thanks Thom, it was an interesting read and confirmed my earlier suspicions (about which we had a nice discussion in the other thread ;) ).

As for some other users' complaints about Apple's EULA stating you must use the software on an Apple branded computer (and please stop the childish 'I put an Apple sticker on my PC, now it's Apple branded!' nonsence) being a tie-in sale, that's really a rather non-discussion. Think of it this way: if you buy a car, do you demand its software to be sold separatly, or being upgradable separatly? If you buy a navigation device, or a TV, or a mobile phone, a DVD player and any of all the other embedded devices out there, do you complain then about lack of choice etc.? Of course not. And an OS is not that different. Apple sells hardware as its core business. To use that hardware, you need an OS. They also sell that. In fact, if you buy a new Apple, you get the OS for free. It's just that when you want an upgrade, you pay, and that's for Apple to decide. There's probably no EULA restriction in the upgrade software for, e.g., my wireless router, but then again, it doesn't run on any other device than that specific brand of wireless router.

Apple's business strategy is selling Apple hardware. Their software is just something resulting from that. They do not want you to use their software, they want you to buy their hardware. That's why they put restrictions in their EULA for use of that software. They are perfectly entitled to do so, and though it may be inconvenient for us end users, that's the way the law works.

Reply Score: 1

RE: Comment by jal_
by tupp on Mon 28th Apr 2008 17:28 UTC in reply to "Comment by jal_"
tupp Member since:
2006-11-12

... That's why they put restrictions in their EULA for use of that software. They are perfectly entitled to do so, and though it may be inconvenient for us end users, that's the way the law works.

An EULA is not a law -- it is a civil contract.

There is no statute that says a government must enforce restrictions that appear in a private contract, such as an EULA. However, one party of the contract can sue the other party.

So, it is not a criminal offense to use a legally purchased copy of OS X to make a hackentosh.

Reply Score: 2

RE[2]: Comment by jal_
by jal_ on Tue 29th Apr 2008 12:12 UTC in reply to "RE: Comment by jal_"
jal_ Member since:
2006-11-02

So, it is not a criminal offense to use a legally purchased copy of OS X to make a hackentosh.


True, it's not a criminal offence. However, the law says a lot about civil contracts, and resulting from that is that what Apple does is perfectly legal.

Reply Score: 1

Koopovereenkomst
by dmantione on Tue 29th Apr 2008 06:27 UTC
dmantione
Member since:
2005-07-06

An EULA might be a valid legal agreement, however, that does not mean the principle "licensed, not sold" mean.

Purchasing software in a store is a purchasing agreement "koopovereenkomst", as meant by the "Burgerlijk Wetboek". If your invoice (legal proof of the "koopovereenkomst") states you bought a MS Office, you have bought (a copy of) MS Office, and not a right to use MS Office.

The findings of the Finish court are not contradictory to what has been written in this article. I'm confident a Dutch court can rule the same, and I'm condifident conditions on the use of software can be made in Finland.

Reply Score: 1

RE: Koopovereenkomst
by tupp on Tue 29th Apr 2008 09:27 UTC in reply to "Koopovereenkomst"
tupp Member since:
2006-11-12

Purchasing software in a store is a purchasing agreement "koopovereenkomst", as meant by the "Burgerlijk Wetboek".

Don't know much about Dutch law, but it sounds like you are referring to laws that apply to all purchases, regardless of any stipulations contained in the separate, private contract that is an EULA.


If your invoice (legal proof of the "koopovereenkomst") states you bought a MS Office, you have bought (a copy of) MS Office, and not a right to use MS Office.

So, given that I bought a copy of MS Office and not the right to use it, what law prevents my right to use it?

Reply Score: 1

RE[2]: Koopovereenkomst
by dmantione on Tue 29th Apr 2008 20:32 UTC in reply to "RE: Koopovereenkomst"
dmantione Member since:
2005-07-06


Don't know much about Dutch law, but it sounds like you are referring to laws that apply to all purchases, regardless of any stipulations contained in the separate, private contract that is an EULA.


Correct, all purchases, regardless wether they are about software, cars or food are subject to the terms in the Burgerlijk Wetboek. They regulate the rights of the buyer (i.e. right of warranty) and the rights of the seller (i.e. right to get paid in a reasonable amount of time).

An invoice is a proof that a purchase agreement between two parties exists, and it states the goods that have been purchased. So, if the invoice states "MS Office", you have purchased (a copy of) MS Office.


So, given that I bought a copy of MS Office and not the right to use it, what law prevents my right to use it?


No law prevents you to use it. Just as no law prevents you reading a book, no law prevents you using software.

However, the software won't install without that you enter in to an agreement, which says you shall use the software only under some conditions. As soon as you click "accept" there exists an agreement between you and Microsoft.

Now back to the purchase agreement. It has to be clear from the start, that you will be bound to usage limitations by means of an EULA. Otherwise you don't know what you buy. So, if it is written on the box that an EULA needs to be accepted, the buyer is fully informed about what he is going to purchase, he knows that he buys a product that will require him to accept an agreement.

If there is nothing on the box, the buyer will get an unexpected surprise when he tries to use the copy of the software he bought. Then he can either nullify the purchase agreement and get his money back, or force the seller to comply to his obligation in the purchase agreement: Supply buyer the product he has been paid for (which would be without EULA in such a case).

Reply Score: 1