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.
Thread beginning with comment 311553
To view parent comment, click here.
To read all comments associated with this story, please click here.
elsewhere
Member since:
2005-07-13

If I purchase and I don't mean lease software I will do what I want with it.


In the US, this is basically protected by the doctrine of first sale. There is enough precedent to suggest that purchasing software is a sale, not a license, which means that the software vendor has absolutely no recourse over what you do with the software after (respective of copyright laws, of course).

The content holders hate this, of course. They don't like people being able to sell software they no longer need, they don't like people being able to sell books they've finished reading to used bookstores, and they don't like people trading console games in at EB Games. All of this robs the content holders of incremental revenue they feel they are entitled to. They've tried to undo it, and they will continue to.

But as far as software goes, it is pretty much under the regulation of copyright law in most jursidictions. Copyright law does not come into effect until a protected work is distributed, so regardless of EULAs, the average user in the average free country is able to do whatever the fark they want with software they are legally in posession of, until the point where they touch copyright provisions regarding distribution.

I think the thing that surprised me most from reading the article, at least compared to my experience with Canadian/US law, is that North American laws generally do not permit citizens to "waive" their rights under the law. That is to say, that an EULA, no matter how well written or "reasonable", cannot coerce an individual into waiving entitlements provided to them. Getting back to my original point about doctrine of first sale, for instance, renders Apple's restriction against installing on non-Apple hardware invalid. Simply because the existing law says that if you are in legal posession of protected content, you can do whatever you want for personal use (again, subject to copyright law). You could hack OSX to run on a TRS-80 if you wanted, and Apple has no recourse. Though selling that TRS-80 with a hacked version of OSX would most likely violate copyright, since you've modified a protected work and are re-distributing it, and that likely touches upon the original issue. But as was pointed out in a previous post, transferring the media to someone else, and providing instructions or directions on how to modify it in order to run on the TRS-80 (or any other platform), would most likely be permissable in the eyes of the law. Once Apple has received remuneration for their content, they no longer determine what you do with it. Whether you resell it or hack it to pieces.

Sadly, though, Apple can bypass fair-use and similar protections by simply implementing some sort of encrypted protection in their software. If they decided to tie OSX into Intel's trusted computing infrastructure, for instance, to ensure that it only runs on an authorized system, then the DMCA would come into effect (at least for US users) and that bypasses the other provisions consumers have. The anti-circumvention provisions generally trump any other freedoms that consumers might otherwise exercise.

Putting that aside for a moment, EULAs rely on contract law, and software is governed by copyright law. So not only must EULAs conform to the requirements for contract validity if they are to have any effect (for instance, you must be of the age of majority to participate in a contract, which renders EULAs invalid for minors), but even then, the contract cannot force the user to waive entitlements under copyright law. In other words, Apple can't restrict a legally purchased copy of OSX to Apple platforms any more than a publisher can prevent selling a book to a used book store as a condition of sale. Doctrine of first sale trumps anything they try to work around in the EULA from that aspect (again, excluding the DMCA).

Anyways, just my North American perspective (well, CA/US, I can't claim experience with Mexican law). I have spoken to legal experts regarding somewhat related issues in the past, including our own in-house corporate counsel, so while I certainly won't claim to be an authority, I'm not entirely pulling this out of my butt, either... ;)

Just my 2c...

Edited 2008-04-26 06:24 UTC

Reply Parent Score: 4