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

Now, I worded my complaint wrongly. I commented:

"Yeah, I'd rather see this cracker use his expertise to do legal things instead of this stuff... But oh well, apparantly there's a market for half-baked OSX installs on cheap self-built crap in a lot of basements around the world."

The second sentence was obviously meant sarcastic, and luckily most understood that. The problem didn't lie in that sentence - the real problem lies within the first line. There, I marked Maxxus' actions as 'illegal'. And whether or not his actions are legal or not, is anything but certain.

Maxxus' actions break Apple's EULA ('End User License Agreement') for MacOS 10.4 in one fundamental way; the (in)famous paragraph which allows you to only use Mac OSX on an Apple-branded computer. The paragraph reads:

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

So, since Maxxus is cracking/hacking OSX to run on non-Apple branded computers, he is breaking Apple's EULA for Max OSX (assuming he actually runs his own cracked version on a non-Apple branded computer). That fact is as clear as a bottle of Spa water. What is not clear, however, is the legal implications Apple's EULA, or any EULA for that matter, has on the user who agrees to it. The jurisprudence in many countries concerning this issue is close to non-existant, and as such, EULAs are legally more clouded than a foggy afternoon in Dartmoor.

Therefore, people claiming that whatever Maxxus is doing is illegal (like myself in the above mentioned comment) is making a rather bold statement. However, the same goes for people who flat-out claim that Maxxus' actions are legal. Without comprehensive jurisprudence on this matter in your country, it is very difficult to mark Maxxus' actions as legal or illegal. You'll have to read up on verdicts made by judges on this matter in the past to determine whether or not Maxxus is doing illegal stuff. If there aren't any (which is likely) it is better to refrain from factual claims on the legality of Maxxus' work.

Of course, this does not stop you from making a personal assessment of what he is doing. As you have understood by my above comments, and other replies of mine in that thread, I'm no supporter of his work. Why?

Well, because I view an EULA as a contract. A contract I actually agreed to while installing the software. And I'm personally not in favour of breaking contracts, at least not when there is no real need for it (i.e. a life-threatening situation in which installing Mac OSX on a Dell is required to save my life). It might very well be that Apple's EULA holds no water, legally speaking, in The Netherlands. But as long as no judge or lawmaker has made any specific remarks on the issue, I'll bet on the safe side and not break it when it isn't really needed.

So, to sum it all up: it is very likely that the legality of EULAs in your country is a no-man's-land. Without any specific laws regarding this issue, without any jurisprudence concerning the legality of EULAs, you cannot claim as a fact the legal status of EULAs. You'll have to make a personal decision about whether or not you call Maxxus' work hacking, or cracking. Just don't try to force your personal preference down someone else's throat.

--Thom Holwerda

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