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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jal_
Member since:
2006-11-02

As others have already tried to explain, I can sign a contract with ten billion million signatures, but if that contract violates some basic rights I have as a human, that contract will not stand the test of any judge in the western world.


True. At least, a contract is not legaly binding if you agree to your rights (i.e. as described in law) being violated. However, I doubt whether the OS X EULA (and Vista's for that matter) contains much that would 'violate some basic right'.

There are known cases of EULAs that stated things like "the user is not allowed to publicise negative information about this product".


Irrelevant, as, as far as I know, the OS X EULA does not contain such a statement, and even if it would, that's not what prevents you from using the software on a different machine.

By telling me I cannot install my copy of Leopard on a non-Apple computer, the EULA violates basic property rights;


It'd be a very ammusing excersize seeing you trying to defend that in a court of law. You may claim it's a type of tie-in sale ("koppelverkoop" in Dutch law) and you may feel disgruntled about it, but Apple really doesn't take any property from you (that's what property rights are about) when they prevent you from using a product on a machine of your choice.

Signing any contract that violates this right, whether you knew about it or not, will mean nothing;


I'm pretty sure that a contract that transfers the ownership of something you have to someone else is perfectly legal binding. It is called "sale". You must have some really strange notion of "property rights".

I don't think there will be any judge in the western world that will not smash the Apple EULA to smithereens.


Perhaps not, but that's because there'll be no actual court case. Remember that Microsoft's Vista license has similar provisions like preventing you from running Vista in a virtual machine. I'm pretty sure these are reasonably sound licence agreements, and I'm also pretty sure we won't see many court cases about them.

Contrary to popular belief, you actually DO own software.


Now really? Good think you know this for sure, as I always thought the software is licensed to you instead of sold to you. Come to think of it, I'm pretty sure the only thing you actually own is the DVD, the case etc. Come on Thom, present hard evidence instead of blurbing about.

You paid for it, just like you paid for a DVD or a CD.


I paid to go see a movie in a theatre? Do I now own the theatre? Or the movie? I paid to rent a car. Do I now own the car?

The same copyright laws apply, and the same property rights apply.


You also do not own the contents of a CD or DVD. They are not licensed to you as software is, but there's very strict regulations about their use.

A contract that violates basic rights you have as a human will BY DEFINITION be void. EDIT: Assuming you install it on just one computer, of course.


1) The OS X EULA does not violate any basic right, as far as you have demonstrated.
2) If I install it on two computers, it's OK for my basic rights to be violated???


JAL

Reply Parent Score: 1

Thom_Holwerda Member since:
2005-06-29

It'd be a very ammusing excersize seeing you trying to defend that in a court of law. You may claim it's a type of tie-in sale ("koppelverkoop" in Dutch law) and you may feel disgruntled about it, but Apple really doesn't take any property from you (that's what property rights are about) when they prevent you from using a product on a machine of your choice.


Tie-in-sale? What are you on about? I didn't mention that at all.

Property rights entail, for one thing, that you can do as you very well please with your property, as long as it does not break any laws. I can buy a knife, but law prohibits me from using it to kill someone. I can buy a CD, but copyright law prevents me from making copies and selling those. I can buy OS X, but copyright law prevents me from making copies and selling those.

However, I can buy a knife and use it to slice my bread; it's my property, and slicing bread with a knife is not prohibited by law. I can buy a CD, and use it as a frisbee; it's my property, and using a CD as a frisbee is not prohibited by law. I can buy OS X, and install it on a non-Apple computer; it's my property, and installing it on a non-Apple computer is not prohibited by law (installing that same copy on multiple machines IS prohibited by law, by the way).

In fact, all of the above examples are things that fall within property rights (eigendomsrecht in NL). Let me quote and translate the relevant part from Dutch Common Law ( http://nl.wikipedia.org/wiki/Eigendom ):

"Het staat de eigenaar met uitsluiting van een ieder vrij van de zaak gebruik te maken, mits dit gebruik niet strijdt met rechten van anderen en de op wettelijke voorschriften en regels van ongeschreven recht gegronde beperkingen daarbij in acht worden genomen."


"The owner is free to use the property, as long as this does not violate the rights of others and the limitations that come forward from law and rules."


(Some legalese removed in the translation).

Since installing OS X on non-Apple hardware does not violate law or the rights of others, the EULA violates property rights by limiting what I can do with my property (at least in The Netherlands, but I'm sure this goes for most other western countries too). Dutch Common Law (consumer sale) speaks only of "sale" and thus property rights, unless specific agreements have been made PRIOR to sale. PRIOR. An EULA is "agreed" upon POST sale, and as such, you OWN your copy.

1) The OS X EULA does not violate any basic right, as far as you have demonstrated.


See above.

2) If I install it on two computers, it's OK for my basic rights to be violated???


No, because that would violate copyright law. Try to keep up.

Edited 2008-04-15 10:19 UTC

Reply Parent Score: 2

jal_ Member since:
2006-11-02

Tie-in-sale? What are you on about? I didn't mention that at all.


No, "may" as in "could", not that you did. Apple selling product A (OS X) and more or less forcing you to also buy product B (an Apple branded computer) is tie-in sale of some sorts.

Property rights entail, for one thing, that you can do as you very well please with your property, as long as it does not break any laws. (...)


All true.

However, I can buy a knife and use it to slice my bread; it's my property, and slicing bread with a knife is not prohibited by law. I can buy a CD, and use it as a frisbee; it's my property, and using a CD as a frisbee is not prohibited by law.


All true again.

I can buy OS X, and install it on a non-Apple computer; it's my property, and installing it on a non-Apple computer is not prohibited by law


Wrong and wrong again. You don't buy OS X. You buy a DVD which contains OS X (and with which you are perfectly allowed to frisbee) and some other stuff like a box and probably some hardcopy quick install guide. But you do not buy the software contained on the DVD. That software is property of Apple. What you pay for, apart from that DVD etc., is Apple's effort in making that software, and by paying for that, Apple grants you, if you agree to their EULA, the eternal use of that software. It's not yours, you are not buying it, no, it's a lease, a rent or whatever you want to call it. And therefore, property laws do not apply. If I rent a car, I cannot use it for racing the Nuernburg, because the rental license explicitly forbids driving on a race track. I you 'buy' OS X, i.e. license it, you cannot use it for installing on a non-Apple computer, because - well, you get it.

(installing that same copy on multiple machines IS prohibited by law, by the way).


No, it is not. It is prohibited because Apple tells you so in the EULA, and the law just allows Apple to tell you so. If Apple wants to grant you to install it on a 1000 computers, it is allowed to do so without breaking the law.

"The owner is free to use the property, as long as this does not violate the rights of others and the limitations that come forward from law and rules."


Indeed, but again, the software is explicitly not your property. Look, it's not that I am in anyway defending that this is even possible, I don't like it one bit, but it is reality.

Dutch Common Law (consumer sale) speaks only of "sale" and thus property rights, unless specific agreements have been made PRIOR to sale. PRIOR. An EULA is "agreed" upon POST sale, and as such, you OWN your copy.


It could be argued that consumers should know that buying an OS (or other software) means they do not own it, just as they do not own music when they buy a CD, or own a film when they buy a DVD. In that case it could be understood that it is not a type of "sale" but more of a type of "rental". Also, even if you are right about Dutch law (which is rather permissive in many ways in these cases), I'm pretty sure in the US Apple has a solid ground to stand on.


JAL

Reply Parent Score: 1