It appears that Apple is not just going after Psystar when it comes to running Mac OS X on non-Apple branded computers. Wired's gadget blog was running a story, accompanied by a video, demonstrating how to install Mac OS X on a non-Apple netbook. After Apple contacted Wired, the website took down the video.
To read all comments associated with this story, please click here.
Member since:2008-11-12
There are two contracts which are independent of each other, the purchase contract and the Eula.
It is the Eula, and not the purchase contract, that forbids the installer to tell people how to install on non-Apple hardware.
But Wired cannot be bound by the Eula since they never clicked through. The purchase of a copy, which they may or may not have done, was (as Softman shows), if they did it, a purchase of a copy and not a license of anything. By purchasing the software you are not bound by the Eula. That only happens when you click through.
Of course they did click through the damn thing. They DID install the OS to a computer, which cannot be done without clicking through the damn license!
Of course it's not a law. But it's a breach of contract which allows Apple to sue them at civil court. Which is totally enough, given how ridiculous amounts of compensation can be imposed by court in the US.
So you can resell unopened boxes. Fine! No one ever questioned that. But this case is totally different: Wired DID enter into the license by installing the software. But they breached the license not only by installing the thing to non-Apple Hardware, but also by enabling others (a lot of others) to do so. This clause may or may not be invalidated in the future, but right now it's valid.
Member since:2005-10-12
(1) No, its not that you can sell unopened boxes. You can resell your copy of the software, whether the box is opened or not, and whether you sell it piecemeal or as a whole.
(2) No, the EULA is not valid and enforceable. That has not been proved in respect of the hardware restriction. It is what remains to be decided.
(3) I have not watched the video itself, just read the text giving instructions below, you may be right that if it shows Wired assenting to the EULA they will be bound by it, should it in fact be binding. It was a hacked copy, and if they did not need to assent to the EULA because of that their situation is a bit different - they would be violating copyright for experimental purposes, which might or might not be covered by the fact that they urge people to buy a legal copy.
However, cat is now well out of bag, because the fact that whoever made the video is bound by having clicked through, cannot mean that anyone else is bound. Should another person post that video and the commentary below it, they will be violating neither EULA nor law. The futility of trying to stop this video and instructions being published widely if anyone is interested should be obvious.
If Efi-x did not make it obvious already.
Member since:
2005-10-12
Yet again, one might say, lets try to get clear about this.
There are two contracts which are independent of each other, the purchase contract and the Eula.
It is the Eula, and not the purchase contract, that forbids the installer to tell people how to install on non-Apple hardware.
But Wired cannot be bound by the Eula since they never clicked through. The purchase of a copy, which they may or may not have done, was (as Softman shows), if they did it, a purchase of a copy and not a license of anything. By purchasing the software you are not bound by the Eula. That only happens when you click through.
So this is the first point. Nothing in the Eula is relevant to whether or not Wired is entitled to publish instructions on how to install OSX on non-Apple branded hardware, whether or not that is forbidden by the Eula, and regardless of whether the Eula is enforceable in this respect on those who do click through.
You are not bound by a click through Eula until you actually click through, and the terms of Eulas are not binding on the public at large. What is written in a Eula is not a law. Apple cannot stop Wired from publishing instructions on how to do something, by publishing terms in a Eula. Think about this. Does anyone really think I can publish a book and stop people who have never bought it or read it telling other people where to buy it? That is the sort of craziness this would imply. It would imply that Apple can legislate for the whole country on what they can or cannot publish, just by writing something down in a Eula they may never have even been in the same room with.
The second point is that simply purchasing the software does not result in your being found by the Eula. This follows from Softman, in which a company bought software, did not click through, and was then held not to be bound by the terms of a Eula they had not entered into. In Softman it was also held that the purchase of a copy of software was just that, purchase of a copy and not a license.
Incidentally, this is where first sale applies. You have the right to resell this copy, or even parts of it.
Now we come to a different third point. You get a copy of the software somehow, and you do click through. Is the prohibition on installation on no-Apple hardware enforceable?
First, the weirdest conditions are enforceable on the basis that the Eula is a contract and you have entered into it. An example is the Direct Revenue case. If you agree in a Eula to have the supplier install unlimited amounts of spyware on your computer, and he does it, you will not be able to void the agreement, it will be valid and binding. Seems extraordinary, but it was so in this case.
Does that mean that the Apple clause is valid? No, not necessarily.
However, it is not invalid because it seems objectionable, and it is also not invalid because of anti trust law. This is what was ruled in the recent case. The market was defined in such a way that the anti trust laws did not apply to this clause. This did not mean that the clause is enforceable, it just meant that it was not unenforceable on anti trust grounds.
But, it still may well be unenforceable, and I think it will turn out to be so. This is because it will turn out to be unconscionable (look it up in Wikepedia). It is procedurally unconscionable like just about all click throughs, being a contract of adhesion. And it is substantively unconscionable because of what it does. It basically tries to restrict not what hardware you install on, but where you buy that hardware. It says that the identical collection of hardware bought from Fry's is not permitted, but if bought from Apple it is.
Maybe there would be a case for restricting the kind of hardware, though it seems unlikely. But I don't believe there will be a case, in a contract of adhesion, for restricting where you buy that hardware. Now we come to stuff like Goodyear tires must be bought from GM or Ford, because that's who made the car, and they tell you so.
In the end, this probably is less important than the fact that its becoming generally known how to install OSX on non-Apple machines using either boot-123 or efi-x type software. So in the end, as a matter of practice, Apple is either going to have to turn into the RIAA or give up. That may be as important as the legal case.
By the way, look at the Psystar site. They are getting rave reviews from customers.