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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two or three issues they didn't address
by alcibiades on Fri 25th Apr 2008 18:28 UTC
alcibiades
Member since:
2005-10-12

Thom, your guys seem not to have addressed some issues that would for sure come up in Anglo Saxon law, which is not about whether Eulas can be valid, but whether these particular provisions can be valid, in a Eula or not.

1) Is it an unlawful linked sale? The US competition law may be stricter than UK and other common law jurisdictions, but I'd like to see a clear legal opinion on this. The case mentioned in the Guardian lately was Data General 1984. Generally you cannot force people to buy A in order to get B, and you specifically cannot do it if you sell A independently but then forbid them to use it on anything but B.

2) Is it valid as a post sale restriction on use? Post sale restrictions on use are sometimes possible where public safety is an issue, but the question is whether installing on the identical set of components bought from a different supplier can be justified. This may be relevant to point 1 also.

For sure you would not get away with selling an electricity socket and along with it a "license" saying this could only be used with a certain kind of plug, if bought from the same supplier. Apple will be in a very weak position on this having gone to standard PC components, because the essential difference will not be the components, but where they are bought. I'm very sceptical anyone will get away with saying you can only run software on a set of components bought from me, and not the same components bought from someone else. Ask them this one!

3) Is it really not a sale? Your guys say you do not buy the software. True, you do not either buy the book. But you do buy a copy of it. The law on buying copies is fairly clear: its existed for a long time and has been applied to books and all sorts of printed material, to records, tapes, CDs, DVDs. Now, the law on what you may do in terms of copying in these cases is set by copyright. You can't copy except as authorized. But the law on what you can do with it is not set by this but by ordinary consumer rights. I doubt any Anglo Saxon court is going to say the supplier can claim its not a purchase of a copy just like a book is purchased, and so, if you don't violate copyright, they cannot tell you how to use it. Just like they can't tell you not to read that book in bed.

There is I think a UK case, don't recall which, where the buyer was held to have bought not licensed. I think there were tax implications. He claimed to have licensed, and lost.

Apple may sue, but I think they'd be wiser not to. They really do not want to get the Commission or the ECJ looking too hard either at Eulas or at post sales restraints on use. Or at linked sales for that matter.

Reply Score: 2

Thom_Holwerda Member since:
2005-06-29

You're assuming that post-sale restrictions are, by definition, unlawful. But, as I just explained in the article, you actually AGREED to the EULA, so in order to have parts of it nullified, you will need to prove to a judge that those parts are unreasonable, that you are not reasonably capable of fulfilling those obligations. And you'll have a very hard time doing that, according to my legal experts.

I don't know about other countries than The Netherlands, since I don't live there, nor intend to, ever. So, if you want an accurate idea of what it is like in your country - contact a legal expert. That's all I can give you.

Reply Parent Score: 3

alcibiades Member since:
2005-10-12

"....you will need to prove to a judge that those parts are unreasonable...."

No, not in the US or the UK or probably Australia etc. You will only have to prove that those clauses are incompatible with either competition law or consumer protection law. In the UK, that will be the Sale of Goods Act and successors, the Competition Act, and also the law on unfair contracts. Unfair in Common Law is not the same as unreasonable in Code Napoleon.

Not a lawyer, but I don't think it has a hope of flying in the UK - the restraint, that is.

Reply Parent Score: 3