The Legality of EULAs in The Netherlands
Linked by Thom Holwerda on Fri 25th Apr 2008 15:01 UTC
Legal When PsyStar announced they would be offering their own Macintosch clone, pre-installed with Apple's Mac OS X Leopard, they opened up a whole can of worms. Despite the fact that the company itself was shrouded in mystery and dubiousness, the possible implications of their actions sparkled an interesting debate here on OSNews as well as other discussion venues: can PsyStar and its users just discard Apple's End User License Agreement for Leopard? Instead of relying on my own limited layman's understanding of Dutch Common Law, I decided to contact Dutch legal experts, and ask for their opinions on Apple's EULA, and EULAs in general.
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END USER licence agreement
by mallard on Fri 25th Apr 2008 16:04 UTC
mallard
Member since:
2006-01-06

Don't EULAs only apply to end users? (I remember seeing some case referring to that, but I can't find it now)
Since Psystar is selling the software (and hardware) on, surely the EULA would not apply to them.

Secondly, the article skimmed over the definition of "Apple-labelled computer", assuming it meant "made by apple". Could I not satisfy this requirement simply by scrawling "apple" on a post-it or using one of the stickers that came with my iPod?

Additionally, the legal systems and practices in continental Europe tend to be significantly different, influenced by Roman Law, as opposed to English Law (the system which most influences US Law).
Since English Law tends to take a more literal approach to the interpretation of statutes and contracts, I still find it unlikely that EULAs would be able to satisfy English-based contract law.

Reply Score: 3

RE: END USER licence agreement
by MrWeeble on Fri 25th Apr 2008 16:18 in reply to "END USER licence agreement"
MrWeeble Member since:
2007-04-18

Psystar was sold the software, so at the point that they install they are the end user, when they resell it the end user changes. If this were not the case then I could violate a EULA as much as I wanted provided I intended to sell the machine to someone else after a couple of years.

Adding Apple to the case would be a violation of trademark law.

I would suggest that a loophole is in the "agree" section. If the software can be extracted from the install media, and installed on hardware without using the standard installer, then the prompt to agree will never be shown. The article states that "If you acquire software via legal means, you technically don't need an EULA at all". I would be interested in knowing whether this would be valid.

Reply Parent Score: 3

mallard Member since:
2006-01-06


Adding Apple to the case would be a violation of trademark law.


Surely it's only a violation of trademark law if I'm using "apple" as a trademark?

If I write "apple" on my own personal computer, or even if I stick an iPod-supplied Apple sticker on my Thinkpad, then surely I am not using "apple" as a trademark, since I am not trading?

Similarly, if PsyStar wrote "apple" on a sicky-label and put it on the inside of the case and told nobody, they would not be using "apple" as a trademark, since it is invisible to anybody until long after purchase(the trade)?

Reply Parent Score: 3

droidix Member since:
2008-03-13


I would suggest that a loophole is in the "agree" section. If the software can be extracted from the install media, and installed on hardware without using the standard installer, then the prompt to agree will never be shown. The article states that "If you acquire software via legal means, you technically don't need an EULA at all". I would be interested in knowing whether this would be valid.


I would like to hear more opinions on this as the specific method mentioned is actually used by some of the OSx86 guys to install Leopard. They use a shareware app named Pacifist that extracts and installs the packages directly from the DVD without their ever being a license to accept.

Now this shareware is for Mac OS X, so it might be questionable how they already have a working copy installed (except in the case of using a real mac to extract the files and then installing the drive in a generic PC).

But, a clever coder could write an open source version that runs on Linux. Now imagine using a Linux live CD tailored specifically for installing OS X on PCs. The user is just prompted to insert their retail Leopard DVD after the live CD has finished the groundwork like partitioning the hard drive and installing the bootloader.

Reply Parent Score: 3

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RE: END USER licence agreement
by Manik on Fri 25th Apr 2008 19:42 in reply to "END USER licence agreement"
Manik Member since:
2005-07-06

An "Apple-labelled computer" would be a computer labelled by Apple. Not by you.

Put a sticker on your car, and see if it makes it an Apple car. Or an "Apple-labelled car".

Reply Parent Score: 4

RE: END USER licence agreement
by m34ch on Sat 26th Apr 2008 23:16 in reply to "END USER licence agreement"
m34ch Member since:
2007-02-01

Don't EULAs only apply to end users? ...Since Psystar is selling the software (and hardware) on, surely the EULA would not apply to them.


regarding Psystar's status, i think the problem with calling them something other than an end-user is that their status is partly what's at issue here.

simply reselling something you bought doesn't mean you're not an end user. that just means you're having a yard sale.

i think Psystar is trying to call themselves an OEM, and Apple would certainly argue that. i would say that since the terms of the EULA on their face forbid Psystar from being an OEM (validity of those terms notwithstanding), they kind of [have to be] an end user until it's cleared up whether or not they're allowed to be anything else.

Reply Parent Score: 1