Earlier this week we reported on the court case between Apple and PsyStar, stating they went into settlement negotiations. Details, however, were sparse. The law firm representing PsyStar has now replied to the matter, and there's good news for those of us who hope to see crazy EULA clauses tested in court.
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Member since:2005-12-02
"What the case may test, if it comes to court, is a very narrow and rather simple question: can a vendor sell goods at retail, and prohibit a customer from using those goods in certain ways, by contractual conditions on sale?"
I agree with most of your post. Whether or not you can do with the product as you wish has nothing to do with the Apple/Psystar case. You can buy a copy of OS X and use the DVD to install it on your VCR if you wanted to and could make it work, or just use the DVD as a coaster. That is not in question, and certainly not what this case is about. What this case is about is if a company can use another brand in order to boost it's sales, without permission from the owner of the brand to do so. In this case Psystar used OS X without permission from Apple to do so. Either way, I will be happy to see the outcome and put all of our speculations to rest 
Member since:
2005-10-12
It has never been in doubt that Eulas and shrink wrap and click through are valid means of obtaining a contract. There are lots of other means - a simple verbal acceptance is also sufficient in many jurisdictions.
The issue is, and always has been, whether the particular clauses Apple will have to rely on are lawful under US or EU competition and consumer protection law. If they are not, they will not be enforceable, and it will not matter a bit how you signed up to them.
The case cited turns on the question of shrink wrap and click through for only one reason: the lawfulness of the terms were not disputed.
As an example, suppose Apple or anyone else were to include in its shrink wrapped click through Eula a clause saying that UK customers by opening or clicking through or by signing a contract waived their rights under the various sale of goods acts. This would not be enforceable, not because of how they agreed to the contractual terms, but because the contractual terms are not lawful in the UK. In fact, it might even be unlawful under the sale of goods act to state that you had waived your rights by proceeding: it would be misrepresentation.
This is why, in the UK, all vendor warranties will be found to be followed by the explicit statement that your statutory rights are not affected by sending in this warranty. They cannot be affected, and it will be unlawful to represent that they have been.
What the case may test, if it comes to court, is a very narrow and rather simple question: can a vendor sell goods at retail, and prohibit a customer from using those goods in certain ways, by contractual conditions on sale?
A similar issue would be posed, for instance, if a vendor of power tools were to introduce a 'professional' and 'DIY' range. He would then have a Eula inside the shrink wrapped box, and it would prohibit a buyer from using the 'DIY' range in way of trade. The issue would not be shrink wrapping, the issue would be a vendor's power to restrict use post-sale. A similar issue would occur if a DVD vendor would seek to prohibit, by contract, playing of the DVD on players made by other manufacturers than one, or more than 20 times, or after the year 2020....and so on.
I believe the answer is no. But whether you agree with this or not, this is the issue.