Linked by Thom Holwerda on Wed 20th May 2009 13:27 UTC
Hardware, Embedded Systems Hot on the heels of the Russians, we have another clone maker popping up, this time in fish & chips country: Freedom PC. "Powerful and versatile, environmentally friendly yet inexpensive computer systems compatible with any and all of the main operating systems: Mac OS X, Linux or Windows. So YOU can decide which one to use for what YOU want to do. And we give you a choice of models, too - from the low priced and good looking office machine, the ideal choice for business, to the high powered, sleek, gaming media centre. All, with the operating system of your choice pre-installed - or none at all - at prices accessible to all." They offer various models pre-installed with Windows, Linux, or Mac OS X.
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EULAs are highly questionable in the UK
by aahjnnot on Wed 20th May 2009 18:53 UTC
aahjnnot
Member since:
2008-07-24

Many of the comments above come from people who believe that Apple's EULA prohibition on installing OS X on non-Apple hardware is, or ought to be, enforceable under English law. However, EULAs are legally untested in this country (there has been a Scottish test case, but that doesn't apply south of Hadrian's Wall), and there are very good reasons for believing that they carry no legal weight.

Under English contract law, unless both parties pass consideration (something of value), no contract can be formed, a rule which also applies to contract variations. That's why shopping vouchers often contain a small footnote assigning them a minute monetary value (eg 0.005p) - without this value, no contract is formed so any T&Cs might be unenforceable.

The issue over the EULA is that the consumer gives no consideration to the software supplier when he clicks on 'I agree'. On the face of it, that makes the EULA completely unenforceable - no consideration, no contract - and this position is almost certainly true for free software such as Flash.

The position for purchased software is a little more complex, though, as the consumer did give consideration when the software was purchased. The issue now becomes one of timing - did the consumer enter into a contract when they handed over their cash, when they opened the box, when they popped the CD into their machine or when they accepted the EULA? This is a difficult and untested area of law, but it seems probable that the contract was completed when money changed hands. If so, the EULA is an attempt at a post-contract variation clause that cannot be enforceable without further consideration being offered by the consumer.

The EULA could, of course, be enforced if it were embedded in the original contract. That would require full disclosure from the software provider before the contract were made, but even that approach is problematic. We have several pieces of legislation that are designed to protect consumers from unfair non-negotiatable boilerplate comtracts, and a clause that required software only to be used on a device carrying a particular logo might well fall foul of one of these laws.

In short, Apple's job in the UK is a very difficult one. I, for one, would love to see this emerging as a test case in a senior court.

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