Linked by Thom Holwerda on Mon 14th Apr 2008 21:44 UTC
Apple The website of a Miami-based networking and security solutions reseller became inaccessible Monday, shortly after the company began advertising an unauthorized Mac clone for a fraction of the cost of Apple's cheapest system. Dubbed OpenMac, the USD 400 offering from Psystar Corporation is described as 'a low-cost high-performance computing platform' based on the ongoing OSX86Project - a hacker-based initiative aimed at maintaining a version of the Mac OS X operating system for everyday PCs. The website is back online now, and the machine has been renamed to Open Computer. Update: Psystar says they will continue to sell the Open Computer system, despite the fact that it appears to violate Apple's EULA. "We're not breaking any laws," they insisted.
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kaiwai
Member since:
2005-07-06

That analgy makes no sense. If you break and enter then you are clearly breaking the law.

Installing OS X on non-Apple hardware isn't a breach of copyright, data protection, nor any other IT law that springs to mind. The EULA simply isn't law. It's just a licence agreement in much the same way that a "void warrenty" sticker is if you open up some bits of hardware. You're not breaking the law by breaking the sticker but you're voiding your licence with the manufacturer should your hardware break.

So it comes back to my "non-support for non-Apple hardware" argument. Apple have every right not to offer you refunds nor technical support, but I fail to see how they can issue legal warnings to those who choose to run their software (which has still been legally purchased) on non-Apple hardware.


Actually, when you purchase and install the software you are signing an agreement (electronic signing in the form of 'I Agree' is also considered one) where by under the conditions set down by the licence agreement (you don't own the software, you licence it off the company) you agree to a certain set of conditions - in the case of Apple, you are not allowed to (or hack the software to) run it on non-Apple hardware.

Does upholind this matters? yes it does, I wish people would spend a little time thinking the impact of what dismissing EULA's would mean; the EULA is a licence contract, your are essentially saying that licence contracts me NOTHING - then what about all those companies who purchase IP off one and another? what about companies who licence software and use it as part of their own.

I wish people here would think about the issue a little more in depth and realise that a precedent set in one area of the industry *COULD* creep through and affect everyone else. Its not just a matter of 'the EULA screws over users' as people here like to claim - its a matter of whether licence contracts (or even contracts!) are even able to be up held in court!

Again, you DON'T purchase software, you LICENCE it, and when you agree to the EULA, you are SIGNING a contract with the software company under what conditions the software is being licensed to you for!

Reply Parent Score: 2

droidix Member since:
2008-03-13

This may be splitting hairs, but at what point do you actually agree to a contract with Apple?

1) At the retail store where you purchase the copy of OS X? No, I am not given a chance to read the contract before I purchase the software.

2) At installation? Maybe, it would depend on the install. If I click on the "I Agree" button during a normal install, you might have a better case for it. However, if I extract the packages manually onto my drive, I would never be presented with the installation license agreement and therefore never have a chance to accept it.

Slightly different topic: the EULA states that the software must be installed on an Apple-labeled computer? I have seen the argument all over the web to just slap an official Apple sticker on the machine. But, I have never seen a counter-argument to this. Would someone care to provide one?

Reply Parent Score: 8

kaiwai Member since:
2005-07-06

This may be splitting hairs, but at what point do you actually agree to a contract with Apple?

1) At the retail store where you purchase the copy of OS X? No, I am not given a chance to read the contract before I purchase the software.

2) At installation? Maybe, it would depend on the install. If I click on the "I Agree" button during a normal install, you might have a better case for it. However, if I extract the packages manually onto my drive, I would never be presented with the installation license agreement and therefore never have a chance to accept it.


Some would claim that at the point of sale; for me, that can't be correct because in NZ (along with most other countries) there are consumer protections which allow one to take back the product. Others would say that as soon as you put it in the machine and agree to the EULA displayed (and it is displayed, if you choose to ignore it - tough). Where as I would go so far as to say that once you have installed, agree and it works, you have closed the deal.

You have agreed to all the terms and conditions of the EULA, and there fore, you have signed a contract with the software company to use the software only in the manner as outlined in the EULA; if you have an issue with the EULA, then get a lawyer and ask whether you can re-negotiate it - otherwise it is a situation of 'put up or shut up'.

Slightly different topic: the EULA states that the software must be installed on an Apple-labeled computer? I have seen the argument all over the web to just slap an official Apple sticker on the machine. But, I have never seen a counter-argument to this. Would someone care to provide one?


Apple-labelled meaning, a machine with Apple firmware; the same definition they used for their PowerPC; there is nothing stopping anyone from creating a PC, the line is drawn when you use Apple intellectual property (aka Apple Firmware) to enable you to run Mac OS X on a non-Apple machine - it would require, even if just a couple of lines of code, Apple firmware or emulation of it. All which violate it. Hence the reason why it was never a breach of contract to sell PowerPC equipment, it was the burning off the Apple firmware on the non-Apple machine which is a breach of contract.

Reply Parent Score: 2

bert64 Member since:
2007-04-23

Many years ago, i had a piece of software for the Amiga... It came in a cardboard box and stated on the back that there were terms and conditions inside.
Inside, was a paper bag holding the floppy disks with the terms printed on it. By opening the bag to access the floppies you were accepting the terms. If you reject the terms, you were guaranteed a refund providing the bag hadn't been opened.
It would probably have been better if the text were printed on the back of the box, but it was a large block of text that would have made the packaging quite ugly.

Reply Parent Score: 1

elsewhere Member since:
2005-07-13

Actually, when you purchase and install the software you are signing an agreement (electronic signing in the form of 'I Agree' is also considered one) where by under the conditions set down by the licence agreement (you don't own the software, you licence it off the company) you agree to a certain set of conditions - in the case of Apple, you are not allowed to (or hack the software to) run it on non-Apple hardware.

Does upholind this matters? yes it does, I wish people would spend a little time thinking the impact of what dismissing EULA's would mean; the EULA is a licence contract, your are essentially saying that licence contracts me NOTHING - then what about all those companies who purchase IP off one and another? what about companies who licence software and use it as part of their own.


Er, no. Virtually every jurisdiction in the world has stipulations on validity of contracts, to the point that contracts can be invalidated even if agreed to by both parties.

Some jurisdictions prevent minors from entering into contractual agreements, for instance, which would immediately invalidate a license "contract". Some jurisdictions refuse to recognize "click-throughs" as acceptance, particularly when there is no recourse for the customer to refuse and be properly refunded for "contractual" terms added after the sale transaction. Some jurisdictions weigh the factor of consideration, whereby a contract essentially can't favor one party over the other without relatively equal benefit to both parties. And most jurisdictions, frankly, view software as any other copyright-protected product, and in doing so, enforce the appropriate protections for consumers and content producers, regardless of the EULA.


I wish people here would think about the issue a little more in depth and realise that a precedent set in one area of the industry *COULD* creep through and affect everyone else. Its not just a matter of 'the EULA screws over users' as people here like to claim - its a matter of whether licence contracts (or even contracts!) are even able to be up held in court!


We had a scam going on here in Toronto, and I'm sure it's happened in other regions, whereby private parking-enforcement companies would "ticket" people on private property with a violation notice designed to look like an official municipal parking ticket and a subsequent threat of legal action if the fine was not payed. The city has had to pass bylaws and regulations prohibiting that type of action, because it was deemed illegally coercive. So it is with EULA's. Just because they look legal, doesn't make them legal. But by the same token, just because an EULA isn't really valid, doesn't provide freedom to violate the other laws that protect software, such as copyright.

Again, you DON'T purchase software, you LICENCE it, and when you agree to the EULA, you are SIGNING a contract with the software company under what conditions the software is being licensed to you for!


See my point above. Many jurisdictions question the license vs. ownership theory. When you purchase a book, you're not purchasing a license to read the book. When you purchase a DVD, you're not purchasing a license to view the movie. Software is covered by the very same copyright laws. The idea that software is somehow "above" this is simply ridiculous, and the idea that it is somehow entitled to stronger restrictions is ludicrous. Software is content, nothing more. There are sufficient laws in place within most jurisdictions that can be applied to prevent the unlawful copying and distribution of it, enforcing controls on what you can do with legally purchased content simply exceeds the boundaries of what free government should do.

Frankly, the software vendors know this, which is why so many of the dominant ones are trying to move to software-as-a-service, because it nicely by-steps all of that. It provides an annuity-based revenue stream, and allows them to bypass the sticky issue of consumer rights.

Note, that's not to say I advocate software theft. And anyone that slaps a copy of OSX onto a non-Apple platform is stealing the software, unless they are also removing it from the original Apple system they purchased it on, or purchasing it from a store.

But EULAs have nothing to do with it. Copyright law is sufficient.

Reply Parent Score: 10

mallard Member since:
2006-01-06

"That analgy makes no sense. If you break and enter then you are clearly breaking the law.

Installing OS X on non-Apple hardware isn't a breach of copyright, data protection, nor any other IT law that springs to mind. The EULA simply isn't law. It's just a licence agreement in much the same way that a "void warrenty" sticker is if you open up some bits of hardware. You're not breaking the law by breaking the sticker but you're voiding your licence with the manufacturer should your hardware break.

So it comes back to my "non-support for non-Apple hardware" argument. Apple have every right not to offer you refunds nor technical support, but I fail to see how they can issue legal warnings to those who choose to run their software (which has still been legally purchased) on non-Apple hardware.


Actually, when you purchase and install the software you are signing an agreement (electronic signing in the form of 'I Agree' is also considered one) where by under the conditions set down by the licence agreement (you don't own the software, you licence it off the company) you agree to a certain set of conditions - in the case of Apple, you are not allowed to (or hack the software to) run it on non-Apple hardware.

Does upholind this matters? yes it does, I wish people would spend a little time thinking the impact of what dismissing EULA's would mean; the EULA is a licence contract, your are essentially saying that licence contracts me NOTHING - then what about all those companies who purchase IP off one and another? what about companies who licence software and use it as part of their own.

I wish people here would think about the issue a little more in depth and realise that a precedent set in one area of the industry *COULD* creep through and affect everyone else. Its not just a matter of 'the EULA screws over users' as people here like to claim - its a matter of whether licence contracts (or even contracts!) are even able to be up held in court!

Again, you DON'T purchase software, you LICENCE it, and when you agree to the EULA, you are SIGNING a contract with the software company under what conditions the software is being licensed to you for!
"

A EULA simply does not meet the requirements of a contract. There is no "consideration" (payment) as you have already bought the software and there is no offer as the "contract" only takes away rights that the user otherwise has.
Thus, a EULA is not a contract. It has no more legal standing than the "warranty void if removed" stickers on various products.

When a company licences another's software/technology, an actual contract is drawn up and is agreed to before payment or reception of the software/technology. Besides, these contracts also (typically) grant the recipient redistribution rights that they would not otherwise have.
(Even when buying software libraries on the internet, you have to agree to the licence terms before payment and receipt of said software.)

Of course contracts are enforceable in law, but EULAs are not contracts. They are simply a pseudo-legal "agreement" that is used to scare the consumer into not exercising their legal rights. (Note that I have yet to see a EULA that even refers to itself as a contract.)

Aside from all that, even in some bizarre alternate universe where EULAs are legally binding, this particular case only depends on the phrase "Apple-labelled computer". Does that mean I can scrawl "Apple" on a post-it and slap it on the side? What if I use one of the apple-logo stickers that came with my iPod?

Reply Parent Score: 3

r_a_trip Member since:
2005-07-06

Again, you DON'T purchase software, you LICENCE it, and when you agree to the EULA, you are SIGNING a contract with the software company under what conditions the software is being licensed to you for!

So what is it? A license? Or a contract? Can't be both at the same time. Since the misnamed EULA puts restrictions on the end user outside the scope of Copyright law, it must be deemed a contract.

Since it is a contract, most serious countries have safeguards against one sided and unenforceable contracts. On of the stipulations is that a contract needs to be signed by both parties, with a valid signature.

Since clicking OK does not constitute a unique and authentic signature, most EU countries deem shrink wrap EULA's unenforceable.

Reply Parent Score: 5

Soulbender Member since:
2005-08-18

you are SIGNING a contract with the software company under what conditions the software is being licensed to you for!


Really? I dont see my signature anywhere on any contract or other legally binding document.
All I did was click a button. Clicking a button != signing a contract.
Just because Apple (and other software companies) lawyers wants you to think it is doesn't mean it is so.

Even if it was a contract it doesnt mean all the clauses are valid and legally binding.

Reply Parent Score: 2