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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EULAs are invalid
by Carewolf on Tue 15th Apr 2008 09:53 UTC
Carewolf
Member since:
2005-09-08

EULAs are invalid because they conflict with no less than three different laws (depending on your juristiction).

1. When buying the product you acquire the right to use it. E.g. Placing a "opening the laptop voids warrenty" sticker on the lid is not valid because it violates the sale, the same applies to EULAs.
2. Contracts are an exchange of rights between to parties. To be valid both parties have to get something from the contract. Since you already have the right to use your software, the EULA does not provide you with anything extra.
3. You can not sign a contract by clicking an okay-button, and even if you could, you are legally allowed to click okay while disagreeing with the contract because of point 1 and 2.

Edited 2008-04-15 09:56 UTC

Reply Score: 1

RE: EULAs are invalid
by rajan r on Tue 15th Apr 2008 10:57 in reply to "EULAs are invalid"
rajan r Member since:
2005-07-27

3. You can not sign a contract by clicking an okay-button, and even if you could, you are legally allowed to click okay while disagreeing with the contract because of point 1 and 2.


You probably should take an introductory course in contract law: of course you can agree to a contract with an "Okay" button. You can agree to a contract by raising your hand (like they do in auctions), nodding your head, or simply exchanging money. Remember the sales part of buying software? When you hand over money to the cashier - there is no signing of contracts, no? Yet, why is it valid?

As long as there is evidence of offer and acceptance, it is a completely valid contract.

2. Contracts are an exchange of rights between to parties. To be valid both parties have to get something from the contract. Since you already have the right to use your software, the EULA does not provide you with anything extra.


This is what is called "consideration" - there is consideration. When you buy a Leopard box from a store, it's a sales contract. You expect a product that works, and a license you have purchase being something you can agree to and valid. You do not buy the right to use the software. Now, you want to use the software - you have to agree to the terms of the license - the EULA.

There is consideration - in exchanged for agreeing to the terms, you get the right to use the software. If you don't agree with the contract, you can get an entire refund on the software you have bought.

It is extremely difficult to prove that this consideration is "past consideration" (in other words, no new consideration for the end-user) in common law jurisdictions. For one, the enormous precedence this would set is that most, if not all, "subject-to" contracts would be made invalid - with enormous repercussions to business efficacy.

It is possible that parts of the EULA is illegal, especially when there is specific law against such terms (clauses). But as a whole, EULA is a valid contract, even if there are invalid terms - good luck trying to convince a judge otherwise.

Reply Parent Score: 4

RE[2]: EULAs are invalid
by Carewolf on Wed 16th Apr 2008 11:37 in reply to "RE: EULAs are invalid"
Carewolf Member since:
2005-09-08

I don't have to prove that EULAs are invalid. They have been tested in most courtrooms in the world, and have been thrown out of every single one, except for some states in the US.

If you live in California like Apple does - they are invalid, if you live outside the US - they are invalid.-

Reply Parent Score: 1

RE[2]: EULAs are invalid
by WereCatf on Wed 16th Apr 2008 11:43 in reply to "RE: EULAs are invalid"
WereCatf Member since:
2006-02-15

It is possible that parts of the EULA is illegal, especially when there is specific law against such terms (clauses). But as a whole, EULA is a valid contract, even if there are invalid terms

EULAs are valid. BUT only in some parts of the world! I do suggest you to remember that when claiming they are valid.

good luck trying to convince a judge otherwise.

Atleast here the judge clearly said the EULA is invalid, both the EULA in the case and EULAs as a concept. But that applies only to Finland, I can't say about any other countries for sure.

Reply Parent Score: 2