Linked by Thom Holwerda on Sat 13th Jun 2009 11:13 UTC
Legal We've got some news in the Apple vs. Psystar tragedy that's been unfolding before our eyes for months now. We all know the gist: Psystar sells machines with Mac OS X pre-installed, while the EULA states that's not allowed. Apple then took this stuff to court, and in the meantime, Psystar went into Chapter 11 Bankruptcy protection. The news today is that Apple has filed a complaint stating that this Chapter 11 thing is just a shield that allows Psystar to continue its business practices, which Apple deems as illegal.
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Psystar Has Its Own EULA
by Governa on Sat 13th Jun 2009 11:46 UTC
Governa
Member since:
2006-04-09

To be fair, before complaining about Apple's EULA, maybe we should also take a close look at Psystar's own EULA. PJ’s/Groklaw skill at dismantling the “open source freedom fighter” myth that has grown around the very few Psystar supporters is superb. Some of the most interesting bits:

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

10. Trademarks. This License does not grant any rights to use the trademarks or trade names “Psystar”, “Psystar Corporation”, “Open Computer”, “OpenPro”, “Open Computing”, “OpenServ” or any other trademarks, service marks, logos or trade names belonging to Psystar (collectively “Psystar Marks”) or to any trademark, service mark, logo or trade name belonging to any Contributor. You agree not to use any Psystar Marks in or as part of the name of products derived from the Original Code or to endorse or promote products derived from the Original Code other than as expressly permitted by and in strict compliance at all times with Psystar’s third party trademark usage guidelines which are posted at http://www.psystar.com/legal/guidelinesfor3rdparties.html.

So, let me get this straight. They can sell stuff using Apple’s trademarks, and yours, but woe betide us if we use Psystar’s? Anybody note an imbalance in the universe here? But I saved the best for last:

11. Ownership. Subject to the licenses granted under this License, each Contributor retains all rights, title and interest in and to any Modifications made by such Contributor. Psystar retains all rights, title and interest in and to the Original Code and any Modifications made by or on behalf of Psystar (”Psystar Modifications”), and such Psystar Modifications will not be automatically subject to this License. Psystar may, at its sole discretion, choose to license such Psystar Modifications under this License, or on different terms from those contained in this License or may choose not to license them at all….

Well, well. You gave them rights, but when it’s their turn, it’s maybe they will, and maybe they won’t. They might not license their stuff at all? And *Apple* is a meanie because it has license terms? Puh lease.

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


This file contains Original Code and/or Modifications of Original Code as defined in and that are subject to the Psystar Public License Version 1.0 (the ‘License’). You may not use this file except in compliance with the License. Please obtain a copy of the License at http://www.psystar.com/opensource/ppl/ and read it before using this file.

You have to comply with Psystar’s license or you can’t use the code, even if you didn’t say I agree? Well, I declare.

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

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

I think not, m’lords.

That flushing sound you hear is any last remaining vestige of Psystar’s credibility going down the toilet
(...)

- Groklaw's full article : http://www.groklaw.net/article.php?story=20081204231414746
- Psystar Public Licence : http://psystar.com/opensource/ppl/

Regarding Thom's article, I do agree that Apple's motion makes a whole lot of sense.

Edited 2009-06-13 12:04 UTC

Reply Score: 7

RE: Psystar Has Its Own EULA
by Thom_Holwerda on Sat 13th Jun 2009 12:38 UTC in reply to "Psystar Has Its Own EULA"
Thom_Holwerda Member since:
2005-06-29

Yup, it's too bad that Psystars itself is a mess. Convenient for Apple, of course.

Still, that doesn't negate the fact that I hope Psystar win this case (unlikely, though). Apple's Mac OS X EULA - just like many others, including Microsoft's - need proper court treatment.

Reply Score: 3

RE[2]: Psystar Has Its Own EULA
by tyrione on Sat 13th Jun 2009 19:56 UTC in reply to "RE: Psystar Has Its Own EULA"
tyrione Member since:
2005-11-21

Yup, it's too bad that Psystars itself is a mess. Convenient for Apple, of course.

Still, that doesn't negate the fact that I hope Psystar win this case (unlikely, though). Apple's Mac OS X EULA - just like many others, including Microsoft's - need proper court treatment.


Wish in one hand, Crap in the other. See which one fills up faster. Will it be your wish fulfillments or defecation? My money's on the latter.

Reply Score: 1

jabbotts Member since:
2007-09-06

Psystar seems to have gone the way of Palm and OLPC for me personally.

I wish Palm all the luck and after being a customer for years, hope they eventually put out something that can replace my N810 again but I'm not holding my breath. They'll need to regain there own credability in the market with a few winning generations of Pre.

OLPC I hope for a more than Palm. I was a very vocal supporter until the project seemed to blow apart from internal politics. The goals where noble and important if one focused on the computer as an education tool not the end goal itself. I truly hope they find there feet again now that the media attention is off but it's a matter of seeing then believing.

Psystar's own writing seems to shatter there credibility. I love someone taking a bit out of the arrogance that is Apple. It's good hardware and software but I have some issue with it and more with the company itself. I hope Psystar wins only because a loss would set a president for future EULA cases. There are other companies selling osX installed on non-apple hardware though too. We'll see how it plays out as third party observers.

I was rooting for all of them at one time but each has fallen for it's own reasons.

Reply Score: 2

RE: Psystar Has Its Own EULA
by Vanders on Sat 13th Jun 2009 13:35 UTC in reply to "Psystar Has Its Own EULA"
Vanders Member since:
2005-07-06

That just makes Psystar hypocrites. That doesn't mean that Apples EULA is valid or enforceable. The two are separate issues.

Reply Score: 2

RE[2]: Psystar Has Its Own EULA
by arpan on Sat 13th Jun 2009 13:55 UTC in reply to "RE: Psystar Has Its Own EULA"
arpan Member since:
2006-07-30

But won't this strengthen Apple's case? If Pystar uses similar wording as Apple, and claims similar rights, then .... would a Judge/Jury not consider this evidence in Apple's favor?

Any body with more experience or knowledge care to shed some light.

Reply Score: 2

RE[3]: Psystar Has Its Own EULA
by Vanders on Sat 13th Jun 2009 14:28 UTC in reply to "RE[2]: Psystar Has Its Own EULA"
Vanders Member since:
2005-07-06

Not really. The judge has to base his judgement on the law and the merit of the argument put forth by both parties: "Well they do it too!" isn't a very valid argument in this case, because Apple are not counter-suing Psystar over the Psystar EULA.

Reply Score: 3

jabbotts Member since:
2007-09-06

Psystar loosing would help justify EULA from all software vendors. Case law can be very dangerous. Suddenly, this case would be referenced to support further case law and we all get to slide off the slippery cliff together.

Reply Score: 2

RE: Psystar Has Its Own EULA
by alcibiades on Sat 13th Jun 2009 14:07 UTC in reply to "Psystar Has Its Own EULA"
alcibiades Member since:
2005-10-12

I don't think there is any open source freedom fighter myth around Psystar. The issue is not even about Psystar the company, though vilifying and spreading misinformation and allegations about it it is a favorite idiotic pastime of the mac lobby.

There is one issue: whether a company can sell you a retail copy of software and then restrict the environment you install it in solely by contract. That is, it is technically possible to install it in lots of environments, but some of them are forbidden by contract. Are such contractual restrictions enforceable?

The Mac lobby is only interested in cheerleading for Apple and the fact that Apple wants to do this is all the reason it needs to support this general power. But anyone thinking about society, freedom and the software industry will not be very interested in Apple, but will be very concerned about the implications.

Can Another Company, for instance, sell you a retail copy of Office, and forbid you to install it under Wine? Can Another Company stipulate that once you have installed its programme, you may not install another OS to have a dual boot system? Can a CAD/CAM company specify that you may not install some kinds of software that allows you to use their files with competing products? Can they forbid you to install if you have such a package installed when you start?

Lets go further. Can a company dictate what software you install on its machines once it has sold them to you? Can it tell you that you are forbidden to view the Kama Sutra? Or the Anarchist Cookbook? Or the Koran?

This is what is at stake here, and there is nothing so infuriating as the petty obsession with Apple and its wants and its weird secretive culture that the Mac lobby shows in talking about this. To have an intelligent debate about this issue we need to focus on what the law actually says. And what we want the law to be. And not on what is in Apple's interests, nor on what may or may not be in Apple's interests, but is what Apple for some crazed reason wants. No, on what is good for society and the software industry. Which is not the same thing at all.

Reply Score: 10

jabbotts Member since:
2007-09-06

For some of us, it starts even earlier. First, is EULA a legally binding contract. Second, can it dictate the terms you mention.

Some places are a step ahead in finding EULA legally non-binding. Sadly, the US is not one of those places and I don't believe us northern neighbors are either.

All kinds of scary in the possible outcomes of this case.

Reply Score: 2

testman Member since:
2007-10-15

For some of us, it starts even earlier. First, is EULA a legally binding contract. Second, can it dictate the terms you mention.


If its isn't, then who's to say any contract is legally binding?

Reply Score: 2

alcibiades Member since:
2005-10-12

It depends on the jurisdiction. But take the case of the UK. Contracts in the UK are not binding if there is no consideration. Nor can one side unilaterally vary the terms of a contract once entered into. Now in the case of the EULA, it seems that you enter into one transaction, you purchase a retail copy of the software. This is just a sale, and so the conditions will be those of the sale of goods law.

Now you take it home, install it, and are presented with another different contract to enter into, in the EULA. This contract has no consideration associated with it. This contract could be a variance of the sales agreement. Or it could be a whole new contract. In either case, it is probably not enforceable under English contract law.

But this does not affect any other contract which is not entered into in the curious way that EULAs are entered into. Nor does it affect the copyright holder's right to sell you just one copy, and to act against you should you make and distribute copies.

So the answer to 'who is to say?' is very simple: who says is the law of contract of the jurisdiction in question.

Reply Score: 2

jabbotts Member since:
2007-09-06

My understanding is that a contract must be available for review and discussion then common agreement. EULA are presented as clickthrough contracts that become little more than pressing OK so setup.exe will run instead of canceling out. Also, an EULA can say "you opened the shrinkwrap so you agree to the contract" when one must open it to view the EULA in the first place.

Reply Score: 2

RE[2]: Psystar Has Its Own EULA
by kaiwai on Sun 14th Jun 2009 04:01 UTC in reply to "RE: Psystar Has Its Own EULA"
kaiwai Member since:
2005-07-06

This is what is at stake here, and there is nothing so infuriating as the petty obsession with Apple and its wants and its weird secretive culture that the Mac lobby shows in talking about this. To have an intelligent debate about this issue we need to focus on what the law actually says. And what we want the law to be. And not on what is in Apple's interests, nor on what may or may not be in Apple's interests, but is what Apple for some crazed reason wants. No, on what is good for society and the software industry. Which is not the same thing at all.


I support what you're saying but what about per-seat licences that many vendors use for their software licensing. That is restricting the use - should that be up for question. How about use as a business versus a non-commercial user - both are just as restricting as the question as to what hardware one can install Mac OS X onto.

If you question one restriction - then all restrictions are up to question; how is the restriction on what it can be installed onto any different than restricting my right to use a legally obtained non-commercial version of Office in my commercial environment? I've bought it fair and square; what gives Microsoft the right to tell me where, when and how I use a piece of software I legally obtained?

I'm don't support restrictions on where, when and how software is to be used (as long as it doesn't violate copyright) - but there are some issues that I think that need addressing; not just what we're talking about but actually the legal viability of EULA and which parts are actually legally enforceable, which are there to 'scare' the end user into submission, and which are there for nothing other than to fill space.

If they did get rid of large sways of the typical EULA; I've always maintained that software should be 'free' and the support; that is, updates, technical support and so forth can be paid for. In other words, you pick up a copy of Windows Vista for $10 (the cost of the media) and then you pay for a 1-2 or 3 year contract, depending on how long you want to keep it for. You might want to pay for a 5 year contract, whilst another user might get a 3 year contract because they intend to update to the next one as soon as it comes out.

New technology will need to be developed so that to ensure that only who pay get the support - but if it means more choice, then I think it is a good thing (tm).

Edited 2009-06-14 04:03 UTC

Reply Score: 2

Thom_Holwerda Member since:
2005-06-29

f you question one restriction - then all restrictions are up to question


Nope, not according to how the legal system works. Each specific clause will have to be tried in court specifically. That's how this stuff works.

Of course, jurisprudence does get created this way, but it will still take another court case.

Reply Score: 1

RE[4]: Psystar Has Its Own EULA
by kaiwai on Sun 14th Jun 2009 05:33 UTC in reply to "RE[3]: Psystar Has Its Own EULA"
kaiwai Member since:
2005-07-06

Nope, not according to how the legal system works. Each specific clause will have to be tried in court specifically. That's how this stuff works.

Of course, jurisprudence does get created this way, but it will still take another court case.


We aren't talking about a court case, we are talking about the wider philosophical arguments behind the decision. What you're demanding is a an inconsistent piece meal approach to the argument when the reality is that everything is linked in with everything else; if you take a philosophical position on one matter, then for the sake of consistency you need to be able to apply it to all scenario's fitting the said criteria.

For example, if you approve of late term abortions on the grounds of compassion for the alleviating suffering of the child born of a debilitating condition then you must also in the same breath approve 'death with dignity' (euthanasia) if the underlying axion of the argument is relieving suffering and compassion.

If the underlying axioms of your argument as they pertain to the right to free use then you must consistently apply it to all parts of the EULA and not just the parts who happen to not like (whilst maintaining the ones you do like). If you believe that the right of the individual to use the said product in what ever way they wish which doesn't violate copyright, then you must also inherit questioning all other restrictions that are placed which have no grounding in copyright law.

Edited 2009-06-14 05:36 UTC

Reply Score: 2

Thom_Holwerda Member since:
2005-06-29

Nonsense.

If I sue my local supermarket because for phylosiphical reasons I think they should use 3 bike racks and not 2, and the judge agrees with me and makes the supermarket use 3, then this will only apply to my local supermarket, and not all of them.

Law IS applied in a piecemeal approach, unless legislators trn the 3 bike rack rules into... Law.

Reply Score: 2

RE[2]: Psystar Has Its Own EULA
by mrhasbean on Sun 14th Jun 2009 13:02 UTC in reply to "RE: Psystar Has Its Own EULA"
mrhasbean Member since:
2006-04-03

Can Another Company, for instance, sell you a retail copy of Office, and forbid you to install it under Wine? Can Another Company stipulate that once you have installed its programme, you may not install another OS to have a dual boot system? Can a CAD/CAM company specify that you may not install some kinds of software that allows you to use their files with competing products? Can they forbid you to install if you have such a package installed when you start?


Can any company sell you a product and then tell you it can't be installed on a computer if that computer is going to be used in XYZ country? Oh wait...

Reply Score: 1

RE: Psystar Has Its Own EULA
by looncraz on Sat 13th Jun 2009 15:12 UTC in reply to "Psystar Has Its Own EULA"
looncraz Member since:
2005-07-24

Hrm...

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

10. Trademarks. This License does not grant any rights to use the trademarks or trade names “Psystar”, “Psystar Corporation”, “Open Computer”, “OpenPro”, “Open Computing”, “OpenServ” or any other trademarks, service marks, logos or trade names belonging to Psystar (collectively “Psystar Marks”) or to any trademark, service mark, logo or trade name belonging to any Contributor. You agree not to use any Psystar Marks in or as part of the name of products derived from the Original Code or to endorse or promote products derived from the Original Code other than as expressly permitted by and in strict compliance at all times with Psystar’s third party trademark usage guidelines which are posted at http://www.psystar.com/legal/guidelinesfor3rdparties.html.


Did you read it? This is talking about a trademarked name - not any products - just their names. This is a standard clause in almost ANY contract which deals with trademarks directly or otherwise.

So, let me get this straight. They can sell stuff using Apple’s trademarks, and yours, but woe betide us if we use Psystar’s? Anybody note an imbalance in the universe here? But I saved the best for last:


They aren't using Apple's trademarks. At least not outside of the legal right of using a trademarked name to reference the proper item ( i.e. using MacOS(tm) X to describe MacOS(tm) X is perfectly legal in every case except when you claim it as your own - which Psystar is not ).


11. Ownership. Subject to the licenses granted under this License, each Contributor retains all rights, title and interest in and to any Modifications made by such Contributor. Psystar retains all rights, title and interest in and to the Original Code and any Modifications made by or on behalf of Psystar (”Psystar Modifications”), and such Psystar Modifications will not be automatically subject to this License. Psystar may, at its sole discretion, choose to license such Psystar Modifications under this License, or on different terms from those contained in this License or may choose not to license them at all….

Well, well. You gave them rights, but when it’s their turn, it’s maybe they will, and maybe they won’t. They might not license their stuff at all? And *Apple* is a meanie because it has license terms? Puh lease.



Umm. DUH! There is NO sense for ANY company to outright give all I.P. away - even before it exists. If they said anything Psystar wrote was public domain or under the GPL that would be a bad move in the event they come up with some truly innovative technology upon which they wish to capitalize.

This section could be more clearly worded, however:

Code not coming from Psystar is not Psystar's, code coming from Psystar may or may not be used freely, please read Psystar's open source license.






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

This file contains Original Code and/or Modifications of Original Code as defined in and that are subject to the Psystar Public License Version 1.0 (the ‘License’). You may not use this file except in compliance with the License. Please obtain a copy of the License at http://www.psystar.com/opensource/ppl/ and read it before using this file.

You have to comply with Psystar’s license or you can’t use the code, even if you didn’t say I agree? Well, I declare.



The license in question is an OPEN SOURCE license - maybe not the best - I haven't read it - but it is an access-granting license rather than a RIGHTS-removal license ( such as Apple's EULA ).


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


If the above is your point in argument, then it is a total charade. In no way has any portion of your argument suggested that Psystar is not open source. You only showed that Psystar says to read the Psystar OpenSource license to understand your usage rights.

Did you know that you can find EULAs like this all over the place that say go look at our source license: GPL vX??



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

I think not, m’lords.

That flushing sound you hear is any last remaining vestige of Psystar’s credibility going down the toilet (...)

Regarding Thom's article, I do agree that Apple's motion makes a whole lot of sense.


Psystar is trying to prove that RESTRICTIVE EULAs are from the Devil.

There are two types of EULAs - one that tries to prevent you from using your rights, and another which gives your more rights.

From the sounds of things Apple has the first type, Psystar the second. Missed the subtlety, eh?

In any event - I also agree with Thom - Apple's claim is completely justified ( even if their lawsuit is not ).

It makes NO sense to allow a company to wiggle away from the lawsuit - but Ch 11 should continue because there is NO sense in punishing a company for what has not yet been proven as illegal.

In the end: Ch 11 continues unabated, the judge will see Apple's lawsuit through regardless.

I'm certain even Psystar knew that one before they filed for Ch 11 - they just had little choice per their stated reasons.

My advice: stop looking through colored lenses, they are distorting your view of the world.

--The loon

Edited 2009-06-13 15:15 UTC

Reply Score: 7

RE[2]: Psystar Has Its Own EULA
by tyrione on Sat 13th Jun 2009 19:57 UTC in reply to "RE: Psystar Has Its Own EULA"
tyrione Member since:
2005-11-21

Spare me the Devil reference. Live in the dark ages if you want, but come up with something better, like Compassionate Conservative.

Reply Score: 1

RE[3]: Psystar Has Its Own EULA
by looncraz on Sat 13th Jun 2009 22:01 UTC in reply to "RE[2]: Psystar Has Its Own EULA"
looncraz Member since:
2005-07-24

I only referenced the devil because it was a response to such a reference. ;-)

--The loon

Reply Score: 2

RE[3]: Psystar Has Its Own EULA
by testman on Sun 14th Jun 2009 03:54 UTC in reply to "RE[2]: Psystar Has Its Own EULA"
testman Member since:
2007-10-15

I wonder if there's a "Godwin's Law" for that...

Reply Score: 2

RE[4]: Psystar Has Its Own EULA
by looncraz on Sun 14th Jun 2009 06:23 UTC in reply to "RE[3]: Psystar Has Its Own EULA"
looncraz Member since:
2005-07-24

Hmm... seems there should be ;-)

Reply Score: 2

Apple's EULA is illegal
by shiva on Sat 13th Jun 2009 14:48 UTC
shiva
Member since:
2007-01-24

I don't understand the american legal system. In my country and many others which used the roman legal system as base it is illegal to force a person buy a product to acquire another product of the same company.

Apple should be forced to sell MacOS X and its other software products to any company which want to put it on their computers. The Aple computers of today are merely PC computers artificially modified to try to justify the fact of Apple doesn't sell MacOS to competitors.

Apple is a bad company and consummers should boycott its products. I don't buy any Apple product.

Reply Score: 4

RE: Apple's EULA is illegal
by stooovie on Sat 13th Jun 2009 14:52 UTC in reply to "Apple's EULA is illegal"
stooovie Member since:
2006-01-25

Apple has freedom to choose to deliver a closed system, period. It doesn`t harm anyone by selling closed system.

Anyone knows how much OSX computers could Psystar actually sell?

Reply Score: 2

RE[2]: Apple's EULA is illegal
by tupp on Sat 13th Jun 2009 17:23 UTC in reply to "RE: Apple's EULA is illegal"
tupp Member since:
2006-11-12

Apple has freedom to choose to deliver a closed system, period.

And any entity (Psystar) buying parts of a closed system has the freedom to resell those parts... period.

In addition, any purchaser of software (the end user) has the right to hire a third party (Psystar) to install the software, and the third party is not responsible for any agreement (real or imagined) between the software manufacturer and the purchaser .................. period.

Reply Score: 1

kryptonianjorel Member since:
2006-06-28

You're right. Psystar has the right to resell retail copies of MacOS X, and they can do that until they're blue in the face. However, what they cannot do, is knowingly install it on a non-apple brand computer. i don't own a Psystar, so I'm not 100% sure about who "accepts" the EULA, but if it is Psystar, then the responsibility lays on them, otherwise, the consumer.

I am not a fan of EULAs. Half of me believes that all software should be free of restrictions, but the other half of me completely understands why Apple has that clause in the EULA. Apple is different from every computer manufacturer out there in the sense that it is the only one that builds the OS for the computer. This is what gives OSX its stability, and allows Apple to tailor its OS to a finite amount of hardware. When you get down to it, Apple is a hardware company. It makes the OS to sell the computers. Without MacOS, their lineup is just a bunch of aluminum, overpriced, windows computers (not to say they aren't overpriced a tad with OSX, but thats another story).

Think of the consequences of this lawsuit, no matter who wins. If Psystar, EULAs will lose their value and cause software companies lots of headaches (people could install a single copy on multiple computers, for example). Also, Apple will either: jack up the price of OSX, stop selling retail and integrate updating macs to the current OS into a software updater, or add a proprietary component and Microsoft-like activation schemes to prevent the installation (or at least inhibit) on other machines.

If Apple wins, it will solidify restrictive EULA terms as legally-binding.

The thing is, when it was simply the OSX86 crowd messing around and putting MacOS on their computers, Apple didn't seem to care. Its too bad Psystar had to rock the boat for the modding community...

Reply Score: 1

RE[4]: Apple's EULA is illegal
by alcibiades on Sat 13th Jun 2009 20:50 UTC in reply to "RE[3]: Apple's EULA is illegal"
alcibiades Member since:
2005-10-12

....Think of the consequences of this lawsuit, no matter who wins. If Psystar, EULAs will lose their value and cause software companies lots of headaches (people could install a single copy on multiple computers, for example). Also, Apple will either: jack up the price of OSX, stop selling retail and integrate updating macs to the current OS into a software updater, or add a proprietary component and Microsoft-like activation schemes to prevent the installation (or at least inhibit) on other machines.

If Apple wins, it will solidify restrictive EULA terms as legally-binding....


You are making a common mistake, in thinking that this case is about whether EULAs are binding, and thinking that in some way if the case goes against Apple it will remove copyright restrictions on copying.

Neither is the case. First, if EULAs were to go in their entirety, copyright law would remain intact, and that is what prevents you buying one copy and installing it on 5,000 computers.

Second, EULAs in general are not at issue. The issue is the particular clause forbidding installation on non-Apple sourced computers. This clause could be held invalid, and all other EULA clauses left standing. Its a clause by clause thing.

My view is that the clause is not going to be upheld at least in the EU, because it is a post sale restraint on use, which the Commission frowns on, and because its (as presently implemented) either a contract variance without consideration, or perhaps its an attempt to enter a secondary contract without consideration, depending on how one looks at the transactions.

We must wait to see if Apple Legal moves to sue EFI-X, PearC and Freedompc. I don't think they will, and if they do they will lose. But if this happens it will still be illegal to install OSX or Windows on more than one computer.

Its both more and less far reaching than your impression.

Reply Score: 3

kryptonianjorel Member since:
2006-06-28

I see your point. however the ramifications could be greater than simply calling that clause invalid.

You say the problem the EU will have with this is that it is a "post sale" restriction. What if Apple put the restriction in plain site on the packaging of the product, so that the consumer could be warned of the limitations imposed of the software.

If Apple loses, which I also believe they will, they will just make everything harder for everybody. If they cant make a legal block of "unauthorized installations", they'll make software and hardware blocks, and who really wants that?

Reply Score: 1

RE[6]: Apple's EULA is illegal
by alcibiades on Sun 14th Jun 2009 03:00 UTC in reply to "RE[5]: Apple's EULA is illegal"
alcibiades Member since:
2005-10-12

The question might be put like this: suppose Apple were to reach arrangements with its resellers so that you could only buy retail copies of OSX by signing an agreement which forbade you to install on non-Apple computers. Would this be binding in the EU? How would the courts and Commission react to this?

Don't know. Don't know of any cases, but there probably are lots of analogous ones in sale of goods law. At least if they did this, there would be one transaction, a sale of a copy, and there would be a contract entered into in that transaction, and there would be consideration. So it would not be open to the procedural difficulties with the present method.

Its not automatic that it would be enforceable. For instance, in the UK you cannot, no matter what you sign, give up your rights under the sale of goods legislation. This is why guarantees and other offers always come with the caveat that this does not limit your rights under consumer protection legislation. You have the right, under distance selling regulation, to return a product within 7 days for a complete no questions asked refund. Even if you sign a contract which renounces that right, you will still have it.

So it could be that you'd still be able to install on whatever you wanted with impunity, and if you can do it yourself, you can pay someone else to do it.

Reply Score: 2

RE[5]: Apple's EULA is illegal
by kaiwai on Sun 14th Jun 2009 04:25 UTC in reply to "RE[4]: Apple's EULA is illegal"
kaiwai Member since:
2005-07-06

Neither is the case. First, if EULAs were to go in their entirety, copyright law would remain intact, and that is what prevents you buying one copy and installing it on 5,000 computers.


How does it stop you from installing it on 5,000 computers. You haven't copied the software, you've installed it on multiple computers that you own; that is no different to the fair use provision of music where one could copy their CD to a tape so that they can use it in their car. How is installing software any different to that - if I have a desktop and a laptop, why should I have to go and purchase two copies using the 'fair use' provision.

Now, if the software company sold you the software and told you can install it on as many computers as you want but the boxed product only includes a support contract for one computer at anyone time. In other word's, when you purchase a boxed software - what you're actually buying is a media kit plus a support contract for one computer. Install it on as many computers as you want but only one of the computers are supported.

If they rejigged their sales model along those lines I think it would address many of the issues raised.

Edited 2009-06-14 04:27 UTC

Reply Score: 2

RE[6]: Apple's EULA is illegal
by Thom_Holwerda on Sun 14th Jun 2009 07:31 UTC in reply to "RE[5]: Apple's EULA is illegal"
Thom_Holwerda Member since:
2005-06-29

How does it stop you from installing it on 5,000 computers. You haven't copied the software, you've installed it on multiple computers that you own; that is no different to the fair use provision of music where one could copy their CD to a tape so that they can use it in their car. How is installing software any different to that - if I have a desktop and a laptop, why should I have to go and purchase two copies using the 'fair use' provision.


In The Netherlands, software does not even fall under the "fair use" provision, so the fair use provision - which allows us Dutch folk to download copyrighted content off the web even if the upload was illegal - does not cover software.

As such, installing multiple copies does not either.

Reply Score: 1

RE[7]: Apple's EULA is illegal
by kmj1268 on Sun 14th Jun 2009 08:08 UTC in reply to "RE[6]: Apple's EULA is illegal"
kmj1268 Member since:
2009-06-14

I get so aggravated with Apple Loyalists who want to tout the Apple EULA when they dont even know what it reads word for word. I do know that I will get some nasty comments and I dont really care. First off, I am typing this email from a hackintosh that clocks out faster than an iMac 24 - the top of the line one. Second, I purchased a copy of Leopard 10.5.6 OS X back in Feb when I set out to build my hackintosh. Third, I can not stand windows and do feel that Leopard is a superior operating system. It is built under the covers on bsd/unix. Now back to the EULA thing. I'll make this short and sweet. For those of you that thing building your own hackintosh with a purchased, legal copy of Leopard, go back and refer to the EULA and read it word for word. The EULA does NOT mention Apple BRANDED. Instead it refers to Apple labeled. Further more there are two Apple Labels in the box that I purchased. Guess what is on the top of my Thermaltake v9 case - an Apple label supplied by Apple for the $130.00 I legally shelled out for the OS. I also went back and purchased iLife 09 and iWork 09. If I had to do it over again, I would have bought the package that includes all for $170.00. Anyways, my point is that a legal argument has to be based on what the EULA is written on word for word. It spells out strictly what the stipulations are. I apologize if my posting might come across a little bold and arrogant, but I am so tired about hearing about this issue when I checked and did my homework by reading the EULA before I even built my machine.

Reply Score: 2

RE[6]: Apple's EULA is illegal
by alcibiades on Sun 14th Jun 2009 08:20 UTC in reply to "RE[5]: Apple's EULA is illegal"
alcibiades Member since:
2005-10-12

....How does it stop you from installing it on 5,000 computers. You haven't copied the software, you've installed it on multiple computers that you own; that is no different to the fair use provision of music ...

kaiwai --
Difference is that installing is copying (legally). You have one copy, you make another on the machine you run it on. This is recognized in US copyright law in

§ 117 · Limitations on exclusive rights: Computer programs

where the law gives you as buyer of software a specific right to make the copy or adaptation you need in order to use it on a machine. Without that explicit provision, copyright law would make it unlawful for you to copy it as needed to use it, ie install it.

So, regardless of EULAs, the copyright holders rights to permit one, two or 5,000 copies would persist. That basically amounts to making him the sole owner of the copyright, and thus the only one permitted to duplicate and distribute copies.

There is quite a lot of case law on this in the US, probably in the EU also.

Reply Score: 2

StephenBeDoper Member since:
2005-07-06

The thing is, when it was simply the OSX86 crowd messing around and putting MacOS on their computers, Apple didn't seem to care.


Oh I'm sure they care(d) - there just wasn't really anything they could do about it (short of emulating the game of whack-a-mole that the RIAA/MPAA have been playing for the last few years).

Pystar, on the other hand, probably looked like much easier-pickings to Apple's legal dept.

Reply Score: 3

RE[4]: Apple's EULA is illegal
by tupp on Sun 14th Jun 2009 00:07 UTC in reply to "RE[3]: Apple's EULA is illegal"
tupp Member since:
2006-11-12

However, what they cannot do, is knowingly install it on a non-apple brand computer.

Of course they can. The EULA is not a law, and Psystar is not bound by the EULA, if they install software at the end user's behest.


i don't own a Psystar, so I'm not 100% sure about who "accepts" the EULA,

E.U.L.A. = End User License Agreement. My guess is that the EULA is "accepted" by the end user.


Apple is different from every computer manufacturer out there in the sense that it is the only one that builds the OS for the computer. This is what gives OSX its stability,...

Whatever one wants to believe...


Without MacOS, their lineup is just a bunch of aluminum, overpriced, windows computers (not to say they aren't overpriced a tad with OSX, but thats another story).

Agreed.


Think of the consequences of this lawsuit, no matter who wins. If Psystar, EULAs will lose their value and cause software companies lots of headaches (people could install a single copy on multiple computers, for example).

Well, the value of EULAs is already questionable.

Regardless, if an EULA is anything, it is a private contract. Just because one private contract is ruled invalid, that doesn't make all other private contracts invalid. And, as I and alcibiades and many others have stated many times, courts usually find individual clauses of private contracts/EULAs valid or invalid -- not the entire agreement.

Countless EULAs and their clauses have already been ruled valid and invalid by the courts. Notice how most of these prior rulings have no influence on this case.

In regards to making multiple copies without permission, it is already forbidden by copyright law.


If Apple wins, it will solidify restrictive EULA terms as legally-binding.

No. It will only set a precedent to establish the validity of the specific clause in question (if Apple indeed fights this case on the grounds of an EULA violation).


Also, Apple will either: jack up the price of OSX, stop selling retail and integrate updating macs to the current OS into a software updater, or add a proprietary component and Microsoft-like activation schemes to prevent the installation (or at least inhibit) on other machines.

Boo-hoo.


The thing is, when it was simply the OSX86 crowd messing around and putting MacOS on their computers, Apple didn't seem to care. Its too bad Psystar had to rock the boat for the modding community...

This case has probably not swayed one individual from installing OSX on a non-Apple machine.

Reply Score: 3

jabbotts Member since:
2007-09-06

I thought the EULA was seporate from the installation license. The one tries to restrict how the installation is used where the other is the permission of copywrite. A program can provide a license against the copywrite without providing a click-through EULA. In places where the EULA is not considered a valid license, copywrite license is still valid. I believe places in europe are like this; the EULA can go get stuffed but that doesn't allow a single license copy to be installed on multiple machines.

Reply Score: 2

RE[3]: Apple's EULA is illegal
by mrhasbean on Sun 14th Jun 2009 13:23 UTC in reply to "RE[2]: Apple's EULA is illegal"
mrhasbean Member since:
2006-04-03

"Apple has freedom to choose to deliver a closed system, period.

And any entity (Psystar) buying parts of a closed system has the freedom to resell those parts... period.

In addition, any purchaser of software (the end user) has the right to hire a third party (Psystar) to install the software, and the third party is not responsible for any agreement (real or imagined) between the software manufacturer and the purchaser .................. period.
"

And again in your argument you overlook the reality of the product being purchased. Pystar is purchasing from Apple a LICENSE, and you are correct in saying that they are allowed to resell that LICENSE. That license grants the end user permission under certain conditions to use a piece of software that remains the property of Apple. So yes, Pystar are obviously allowed to resell that license but the conditions of that license still stand. The actual software is never being bought or sold by anyone, including Apple. Apple are selling a license to Pystar, Pystar are within their rights to resell that license, but they are also bound by the terms of that license, just as the end user to whom they are selling it are bound by the terms of it. It is really very simple, if you don't like the terms of the license DON'T BUY IT!

How does telling a company who they can and can't sell to, and what terms they can and can't put on their license be considered free trade?

Reply Score: 0

RE[4]: Apple's EULA is illegal
by alcibiades on Sun 14th Jun 2009 15:19 UTC in reply to "RE[3]: Apple's EULA is illegal"
alcibiades Member since:
2005-10-12

In the case of a retail copy of OSX, they are not selling a license. They are selling a copy. This sale is just like the sale of a book or CD or other copyright item.

Then the user is invited to enter into a license agreement when they install the OS. Or, alternatively, they may not use the installer, and so will not even see the license agreement, but may install manually.

When you sell anything at retail you cannot set whatever terms and conditions you want. You used to be able to, but in the 20c lots of consumer protection and sale of goods legislation was passed. The result is that a great many conditions apply to retail sales. Is this free trade? Probably not. But who cares? You want to sell stuff at retail, you are bound by the applicable legislation. You don't like it, don't sell. There is no way around it.

Reply Score: 2

RE[4]: Apple's EULA is illegal
by tupp on Sun 14th Jun 2009 15:54 UTC in reply to "RE[3]: Apple's EULA is illegal"
tupp Member since:
2006-11-12

And again in your argument you overlook the reality of the product being purchased. Psystar is purchasing from Apple a LICENSE, and you are correct in saying that they are allowed to resell that LICENSE.

And again, another fanboy has overlooked the fact that software is the product actually being purchased -- the product is not some restrictive declaration by Apple.

Software was once sold without "licenses." The nature and essence of a product (software) doesn't change just because the manufacturers of the product suddenly started making declarations in the form of "licenses."

Software is a mass-produced, copyright-protected product, just like music CDs, books, mp3 songs, sheet music, etc. Software differs from other copyright-able items in that it can also be patented. However, if one purchases a music CD, the manufacturer of that CD has no right to dictate on what machine the purchaser plays the CD.

Of course, the CD manufacturer is protected by copyright law in that no one is allowed to mass produce the music CD without permission from the copyright holder.


How does telling a company who they can and can't sell to, and what terms they can and can't put on their license be considered free trade?

How can a company's restrictive declaration (which contradicts consumer protection law) be automatically considered valid?

Apple could declare in their license that "OSX can only be used to kill babies," but that declaration would not be valid just because Apple says so in their "license."

Furthermore, nobody is trying to dictate to Apple to whom they can and cannot sell OSX. Psystar is merely buying and reselling boxes of OSX which are openly offered at retail outlets.

Edited 2009-06-14 16:01 UTC

Reply Score: 3

RE[5]: Apple's EULA is illegal
by mrhasbean on Thu 18th Jun 2009 23:01 UTC in reply to "RE[4]: Apple's EULA is illegal"
mrhasbean Member since:
2006-04-03

And again, another fanboy has overlooked the fact that software is the product actually being purchased -- the product is not some restrictive declaration by Apple.


It saddens me that there is a growing population who are concerned only with their "rights" without accepting the RESPONSIBILITIES that go along with them or give the RESPECT that is due those who invest their time, effort and resources in creating new products and services, and for whom the concept of selling and buying a license to use a product is beyond their intellectual grasp.

Fortunately I grew up with parents who respected me enough to teach me that all three of those R's are equally important, and that if something belongs to someone else it is THEIR right to set the rules for its use. I was taught that it's fine not to like the rules but if I decided to use that item I still had to RESPECT and abide by those rules. Sadly - which is very evident in today's "me" society - most people didn't have that advantage...

Edited 2009-06-18 23:03 UTC

Reply Score: 1

RE: Apple's EULA is illegal
by tyrione on Sat 13th Jun 2009 19:58 UTC in reply to "Apple's EULA is illegal"
tyrione Member since:
2005-11-21

Great! One down, over 6 and one half billion left.

Reply Score: 1

RE: Apple's EULA is illegal
by macUser on Sun 14th Jun 2009 02:10 UTC in reply to "Apple's EULA is illegal"
macUser Member since:
2006-12-15

I don't understand the american legal system. In my country and many others which used the roman legal system as base it is illegal to force a person buy a product to acquire another product of the same company.

Apple should be forced to sell MacOS X and its other software products to any company which want to put it on their computers. The Aple computers of today are merely PC computers artificially modified to try to justify the fact of Apple doesn't sell MacOS to competitors.

Apple is a bad company and consummers should boycott its products. I don't buy any Apple product.

You can buy engines from many car manufacturers separately from the car. Does this mean it is illegal for them to sell you a car with the engine in it already?

Reply Score: 1

jabbotts Member since:
2007-09-06

Since Apple is not in a monopoly position (95% of market share or more), they have the legal freedom to pursue whichever business model they choose. The are actually more of a hardware manufacturer. Think of them like Dell or HP but producing there own embedded OS rather than purchasing bulk Windows licenses for there hardware. Palm makes a PDA and uses it's own embedded OS. Apple makes a computer and uses it's own embedded OS.

Now, if Apple was in a monopoly position then things like the drama over the app store would probably have them in court. They would have the influence to truly harm the software market with arbitrary banning of software and denying third party repositories as they do.

The irony is that they don't even artificially modify the hardware. They simply use a different industry standard BIOS. It's not Apple specific, simply not what the bulk of computers use for the BIOS and boot process. One can even buy a USB dongle that has the applicable BIOS on it; osX loads natively and your off.

I do agree that Apple and consumers could benefit from a boycott. My problems with Apple tend toward the company more than the product (with MS, I have issues with products and company). Improve the company and consumers would win. This brings up another thing though; we are geeks. People who read OSNews are the computer educated anomaly not the consumer norm. Consumers are so used to being hosed in the computer market that they generally have little idea there is any choice and no interest in voting with there wallet. It's more important to be cool in the local coffee shop than to exercise consumer power over the market.

For me, bunging up the Newton product line was the end of my brand loyalty. That was the one that really showed me what a PDA could be. I'm still not able to replace some of the functionality it provided.

In the end, I think they should be happy to have had an osX license or iPhone sale rather than intentionally breaking jail-broken devices or hunting down anyone who dares install osX without paying the premium for Apple hardware. I'd love to have osX along side the rest of the OS in my VM collection. They are not a monopoly position in the OS market though so they have more freedom and less ability to harm the market in general.

Reply Score: 2

alcibiades Member since:
2005-10-12

In the EU a monopoly is defined as 25% or more of the applicable market.

Not 95%.

Reply Score: 2

jabbotts Member since:
2007-09-06

You require four or more vendors for a healthy market. Nice. Believe the US figure is 95% but I could be wrong. That was just the last figure I heard.

Reply Score: 2

dagw Member since:
2005-07-06

In the EU a monopoly is defined as 25% or more of the applicable market.

No it isn't. What the regulations say is that you cannot be considered a monopoly unless you have at least X% (I'll take your word that the number is 25) of the market. Simply being over that number doesn't automatically make you a monopoly.

Reply Score: 2

alcibiades Member since:
2005-10-12

You may be right. The only reference I have found is to the minumum share held by a company which was judged to have significant market power was just under 40%. The reason I thought 25% was the threshold under which you encountered special restrictions of the kind that apply to monopolies was, that's what the specialists told us when we were in the business. The business of either having 'monopoly powers' or proposing to get them as the result of merger/acquisition. But I can't find any written proof of this.

It might be they were only going by what would attract the interest of DG Competition.

At any rate, its clear that 95% is not the threshold for being held to have SMP, its far lower than that. Its not so much monopoly in terms of being the sole supplier that matters, its having significant market power as determined by the ability, given your position, to impose unilateral price increases.

Reply Score: 2

Pystar == best. troll. ever
by BallmerKnowsBest on Sat 13th Jun 2009 22:41 UTC
BallmerKnowsBest
Member since:
2008-06-02

Even if it wasn't really their goal, it's hilarious to see how effectively Pystar has trolled just about every Maclot on the Internet.

It's been painfully-obvious for a long time that most Apple fanbois are motivated purely by psychological transference (the grownup version of "my dad could beat up your dad," but with "dad" replaced by "Steve Jobs"). But there's never been such an effective demonstration on such a large scale.

Millions of blog posts and comments from furious Apple apologists (a creature that's about as intimidating as a toothless, rabid Chihuahua), impotently venting their rage at Pystar & jumping to the defense of their beloved Apple.

Not that it really requires any effort to troll Mac users (hell, they practically troll themselves), but trolling them all at once? Beautiful, just beautiful. Bravo, Pystar.

Reply Score: 0