Linked by Thom Holwerda on Thu 1st May 2008 09:10 UTC
Apple The soap surrounding PsyStar, the company that offers a Mac clone for sale, just keeps on running. After the initial launch, the company was plagued by doubt and mystery surrounding its actual existence, but soon after videos started popping up of the OpenComputer out in the wild, beyond the company itself. Thanks to CNet, the company may now have fully redeemed itself.
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saso
Member since:
2007-04-18

Very wrong - Apple does owe you. Once you've purchased a license to use the software you have certain rights. One of such rights is to run the software on hardware of your choice. The current situation with Apple's EULA can be easily explained with the following analogy: imagine Sony BMG started wrapping their CDs in an EULA which says "by unpacking this CD from this EULA you agree to only play said CD on a Sony-labeled CD player". No copyright holder can legally restrict the way licensed material is used. This is why in any sensible law system this kind of statement is automatically voided. Therefore it is also illegal to technically restrict such an act (e.g. by automatically aborting installation if you don't run on a genuine Apple computer).

The above statement of course does not apply to any other services associated with the copyrighted material. Apple may very well say that you are entitled to software updates only if run it on genuine hardware. This can be easily made part of a SLA (Service Level Agreement) and is in fact common industry practice - e.g. Oracle on supports you if you run their DB on something like RHEL, not anything like Debian.

Edited 2008-05-01 11:54 UTC

Reply Parent Score: 4

lurch_mojoff Member since:
2007-05-12

Although I agree that shrink wrapped software EULAs should not be (and may even not be) considered as binding as a license contract you agree to before the purchase, I still disagree that they are void and null. Even if you are unaware of the terms of the license at the time of purchase, which in the case of Apple and Mac OS X is very unlikely, you would, probably rightfully, expect to be able to return the software and get a refund find those terms out, but I don't see why a company should not be able to set such terms. Ultimately, it boils down to - a rights owner should be able determine under what restriction they give you a license to use their property. Although your example seems absurd, because it clearly doesn't make business sense, I don't see why would it not make legal one. (Funny you should use Sony in particular, though, since they have been trying to do almost exactly that for years now, although with hardware restrictions and not legal ones, with Betamax, UMD, ATRAC, etc.) As I said, the rights owner has the right to put stupid restrictions and you have the right to give them the finger. If you let the free market decide, it will either force a change of the restrictions or make the rights owner go out of business and make room for people and companies that have more sense.

Reply Parent Score: 2

alcibiades Member since:
2005-10-12

People keep on confusing Eulas and conditions.
Its not about Eulas, its about conditions.
Some conditions can be valid and binding in a Eula. They are exactly the same conditions that can be valid and binding in other contracts.

Some cannot be valid and binding, because they are contrary to the law of the jurisdiction in question. Like, for instance, you cannot by Eula, or by any other means, oblige someone to give up their rights under consumer protection law. You cannot get someone to sell himself into slavery. Two under age minors cannot enter into a contract of marriage. And so on and so on.

It is not the Eula that counts.

No, Apple owes us nothing. Apple does not have to sell its product at retail. But it has chosen to do so, and having done that, it cannot tell us what to install it on. Because this is contrary to competition law and to consumer protection law. It cannot impose these particular post sales restraints on use in any sort of contract, Eula or not. Just like two minors cannot marry without parental consent in a Eula!

People need to get over Eulas, get over generalities, and start focussing on whether specific contractual terms are lawful and enforceable at civil law in a particular jurisdiction. The answer is going to be, this prohibition on installation is not, at least in Anglo Saxon jurisdictions. Thom thinks it will be in Holland. I am very doubtful - I think the Competition Directorate in Brussels will most likely have something to say about it.

And I think Apple would be much wiser not to try to enforce it, if there is an EC entrant. No company in its right mind wants the Competition Direcorate taking a close and interested look into its business practices, and that is what would happen.

Edited 2008-05-01 15:09 UTC

Reply Parent Score: 3

apoclypse Member since:
2007-02-17

Wrong again. Apple's license clearly states that you are NOT allowed to run their software wherever you like. What magical non-existent license do you have that tells you, you can run OSX on whatever you like just because you want to to? You either believe the EULA is enforceable or you don't. If you do then you are dead wrong aboutit s content, if you don't then you are going to do what you want anyway, regardless of reality.

Reply Parent Score: 2

alcibiades Member since:
2005-10-12

Its quite simple. Some clauses in the Eula may be valid and enforceable because they are consistent with the law in the US or wherever.

Others are not, because they are not consistent with the law of the land.

I think that the Eula is perfectly clear about what you may do with the OS, it forbids you to install it on any other than Apple hardware. Other clauses in the Eula may be valid, binding and enforceable.

But this one is not, because it is inconsistent with the law. Just as if the Eula said that by opening the package and installing the software, you agreed to have all disputes settled by the courts of Azerbijan, and you also relinquished all your rights under US consumer protection legislation. That would be invalid and unenforceable also.

Its the conditions that are the problem, its not whether they are in a Eula.

Reply Parent Score: 3