Numerous irrelevant issues and feelings about them are ventilated in comments on the case. However, there are only two important issues. One is what the law is, the other is what we think the law should be.
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Member since:2005-07-27
Inasmuch as your comment was painful to read (must you bold every other word), you have a very warped view of contracts.
The reason EULAs have been challenged in the past is because the terms were considered additional terms, whose notice came after the contract was formed. In the SoftMan case, they had no notice of the terms, therefore no contract is formed.
They had not been challenged on the count of the impossibility of knowing acceptance - i.e. the very purpose of a signature.
Contracts never required signatures - offer, acceptance, consideration and intention to enter a legal relationship is all that is needed for a contract. For example, bidding at a auction house - there is a contract when you bid for something and win (multiple, sequential contracts in fact). You *do not* need to sign a contract for it to be valid. Carlill v Carbolic Smoke Ball, for example, there was *NO SIGNATURE* - Carbolic has an open-ended offer to the world, and there wasn't a need to signify acceptance by notice (or signature on that notice, for that matter). See UCC Sec. 2-207(1) - informal acceptance is still acceptance, even without a signature.
So when is signature necessary? In proving there is acceptance to a contract. If X tells Y he wants 50 widgets, Y says "Yeah, sure" - there is offer and acceptance. But when Y builds and delivers the 50 widgets, X says, "What? When did I order widgets?". The lack of a written contract in this case works against Y. It is not that X and Y didn't have a contract, Y just can't prove the contract exists and the terms are as originally agreed.
In the case of Psystar, it is clear they have seen the EULA - if not at installation, the many statements on their website indicates that they very well know of the terms of the EULA. Whether the EULA is enforceable is a different matter altogether (one that judges disagree themselve), but quite certainly the lack of signatures *isn't*
Member since:2005-07-24
Sorry, but in the cause of renouncing ones rights, a signed contract or witnessed consent is required in most cases.
Yeah, I went overboard with the bold ( I'm OCD, happens - sorry ).
In any event, I see that I have edited my comment to the point of removing the important factors, hehe... hrm...
That being that the common understanding established upon purchasing a piece of software is that you are purchasing a copy of that software. It is not made evident until too late that it is a license. Failure to satisfactorily establish a license agreement prior to purchase and transfer of a CCM is the fault of the seller.
Also, when the seller accepts payment and transfers a CCM, they have agreed to certain terms of the sell. Mainly that they have not violated any laws in the transfer, but also that they are satisfied in the transfer of the CCM. If they are still requiring further effort on the part of the purchaser, then those requirements are void unless they have been contractually required in advance.
There are legal standards here regarding what is and is not being purchased. If you have a receipt for a copy of a copyrighted product, the law states that you have many rights regarding that ( and software has been given special attention in those laws, by providing compatibility clauses ).
The legal standard for licensing of a copyrighted or patented work is well established, and requires advance negotiation. When a case goes to litigation the burden of proof must be met - the plaintiff must provide proof of a licensing arrangement. This is where signatures are important ( and my entire last post ).
What Apple, Microsoft, and many others attempt is to sell a CCM at retail, then get you to sign away your rights immediately. You have no such requirement, so the EULA is meaningless if you do not agree to it. Some countries ( such as Australia ) have terms of use laws regarding software. The U.S. is still well behind, which is why there is such a question.
If the U.S. uses the Australian method, they will be overthrowing the very purpose of many laws already made - to protect the rights of the consumer.
The U.S. laws regarding terms of use are a bit confusing, but boil down to being that no rights can be taken from anyone if they are explicit in the law - without prior agreement, but those agreements can provide extra rights to the consumer ( such as source access, with condition ). A signature only matters in litigation. This can be ANY legal method for identifying an individual as having accepted the terms ( which is why I included the SEAL section in my last post ) and ensuring the content of the agreement at the time the agreement was made ( no live documents are allowed in law; even though the agreement may change, the original agreement must be kept to show that one has agreed to be held liable for such an agreement ).
Remember, when you pay $120 for MacOS X, you just paid that money to use the software. You have a right to do so, and no one except YOU can take that right away. You are permitted to do whatever you must to use that product HOWEVER you want. You cannot expect Apple to support you - they have no such requirement unless they state they will support any configuration ( they don't ).
Who is Apple to say that I can't install that copy on another machine?? They can't say anything, and this is well accepted as truth. So then, when a company does it, and sells those machines, what laws are they violating?
They made no special contracts with Apple to limit their rights ( and took special steps to avoid this - at the advise of their very intelligent lawyers ).
They made no agreement of any kind that said they were licensing MacOS X from Apple. They purchased COPIES, at retail. The box clearly says "Apple MacOS X [version]." It is not prominently displayed that you are only purchasing a "restricted use license."
In fact, the legal standard is that the actual sell item name must include the word 'license.' I ran into this personally, which is why I know these areas of copyright, anti-trust, and contract law fairly well ( even if I am rather bad at explaining it [ money is well spent on lawyers sometimes ] ).
The lack of the word 'license' on my receipt allowed me to transfer an $11,000 piece of software from one machine to another, against what the EULA said ( I had to hack the program for compatibility ). I didn't think once that it might be a problem when I did it, of course - and I knew nothing of law at that point ( I was 20 ). That company now knows to include license on the receipt AND to require a signature upon selling the software package.
Anyway, I *REALLY* hope Psystar wins this one hands down, they need to. If they lose, we lose too many rights as consumers. Sure, Apple will just make a few adjustments ( such as ensuring that the product name, as sold at retail, includes 'license' ) which will still hurt Psystar - but at least you know where you are standing when you see the product on the shelf.
--The loon
BTW: I do understand that proof, in these cases, is merely by a preponderance of the evidence.
( Wow, how did I NOT misspell that on the first try?!? )
Edited 2009-03-10 05:04 UTC
The Verge pointed me to a blog post by Leap Motion - which reveals how their Kinect-like motion control works with Windows 8. "From the second you plug in your Leap Motion Controller, you'll be able to browse the web and interact with your computer just by moving your hands and fingers in the air. With Leap Motion technology and Windows, you can do everything that's possible with multi-touch inputs - without actually touching anything. This also means that existing applications in Windows 7 and 8 will respond to your natural hand and finger movements. Soon, we'll show you how Leap Motion will work with Mac OS X." Quite cool.
PocketNow interviews Marc Dillon, and there's an interesting note about why Jolla is keeping the display properties under wraps: "We're leaving some of those details out because we do understand that there are a lot of really big players in the market and they tend to take certain components in the market and dominate them. We created the ability to actually be able to run Sailfish on multiple hardware displays and be able to swap components, so this is part of the demand and supply planning phase. We are committed to this industrial design which is a 4.5-inch display, an 8 megapixel camera on the back and a front-facing camera at the front, and the exact specs of the display we'll provide when we're close to delivery." Something you rarely hear anything about."This is my NeXTstation Turbo Color booting the Mac System 7.1 Operating System using a hardware add-on called 'Daydream'. The Daydream has a Mac ROM and a few custom ICs in it and hooked up to the NeXTs DSP port. Turns your NeXT into a full fledged 68k powered Mac." So cool.
"The NetBSD Project is pleased to announce NetBSD 6.1, the first feature update of the NetBSD 6 release branch. It represents a selected subset of fixes deemed important for security or stability reasons, as well as new features and enhancements. Please note that all fixes in the prior security/bugfix updates (NetBSD 6.0.1 and 6.0.2) are also in 6.1."
"At the end of a week in which Electronic Arts confirmed it wasn't developing a thing for the Wii U, one of the software engineers in EA Sports' Canada studio, in a series of since-deleted tweets, disparaged the console as 'crap' and suggested Nintendo should give up on hardware altogether. 'The Wii U is crap. Less powerful than an Xbox 360. Poor online/store. Weird tablet', tweeted Bob Summerwill, listed as a senior software engineer at EA Canada, in a reply to a tweet posting a link about EA's no-Wii U news. 'Nintendo are walking dead at this point'." The Wii U is turning into the 21st century's Virtual Boy.
"In NixOS, the entire operating system - the kernel, applications, system packages, configuration files, and so on - is built by the Nix package manager from a description in a purely functional build language. The fact that it's purely functional essentially means that building a new configuration cannot overwrite previous configurations. Most of the other features follow from this." Interesting approach. A Linux distribution, sure, but with some very refreshing ideas about system configuration.
Appfour added, among other features, C/C++ support to its new version of AIDE. From Android-IDE, "Now you can write parts of your app or your whole app in C/C++ on your device. AIDE supports the Standard Android NDK toolchain (GCC 4.6 + Bionic, STL, ...). No changes are necessary if you want to build an app developed on a PC with Eclipse. C/C++ development is fully integrated: Build errors appear in the error list and files can easily be navigated to with Go to file. The editor supports C/C++ syntax highlighting."
Ars nails it: "The answer is that Google did announce what amounts to a fairly substantial Android update yesterday. They simply did it without adding to the update fragmentation problems that continue to plague the platform. By focusing on these changes and not the apparently-waiting-in-the-wings update to the core software, Google is showing us one of the ways in which it's trying to fix the update problem."
"It is good for programmers to understand what goes on inside a processor. The CPU is at the heart of our career. What goes on inside the CPU? How long does it take for one instruction to run? What does it mean when a new CPU has a 12-stage pipeline, or 18-stage pipeline, or even a 'deep' 31-stage pipeline? Programs generally treat the CPU as a black box. Instructions go into the box in order, instructions come out of the box in order, and some processing magic happens inside. As a programmer, it is useful to learn what happens inside the box. This is especially true if you will be working on tasks like program optimization. If you don't know what is going on inside the CPU, how can you optimize for it? This article is about what goes on inside the x86 processor's deep pipeline."
"It was the only moment I heard regret slip into Otellini's voice during the several hours of conversations I had with him. 'The lesson I took away from that was, while we like to speak with data around here, so many times in my career I've ended up making decisions with my gut, and I should have followed my gut,' he said. 'My gut told me to say yes.'" The world would've been a much different place - Apple would have been less dependant on Samsung for its chips, which probably would've meant less money for Samsung to develop its Galaxy business.
Member since:
2005-07-24
The article seemed to miss one important point: what the law says is required to create a legal contract in regards to usage rights of a copyrighted material...
Did you by a "Copy of a Copyrighted Material" (CCM) at purchase, or a license? What determines this? By law, the manner of purchase makes the primary determination.
If you bought a CCM you cannot be forced to behave in a certain way regarding your usage of the product ex post facto, making the EULA basically illegal - but there are some finer points, of course.
A license contract must be made before the time of purchase as a condition of usage rights and the license, itself, must be the purchased item, explicitly. You can't be forced to change this later, even if you do have the right to do so.
If the receipt says "Apple MacOS X 10.5.2 DVD," it is implied to be CCM, by law. I have signed nothing that states otherwise. Once the sell is complete the item is governed under the laws which govern all CCMs. Those laws MUST provide a way for the original seller to transfer the material to another set of laws, otherwise I am the only one that can cause such a modification, ex post facto, via my signature, and in contractual agreement with the authorizing party.
You CAN agree to have purchased a license if you purchased CCM, no problem. BUT you CAN NOT be forced into doing so. You own a CCM, you have your rights now! USE THEM OR LOSE THEM!
Think about it:
I can't give you a receipt for "The Great Gatsby - Audio Tape," let you leave with your tape, and then when you play it at home have a little note that says you cannot play with anything other than a Radio Shack branded tape player... even though you just did! I can't do that even if I "allow" you to listen to up to five minutes without an "infraction"... You own your copy!
I can't sell you a normal book and tell you that you MUST use a specific brand of contact lenses, or a G.E. light bulb just by having the requirement written on the first few pages.
So why can I force you to use a program on a specific machine in such a manner??
I can't!! Not ex post facto, in the very least! I CAN certainly require you to sign an agreement of license in ADVANCE, but I must follow the laws governing such licensing.
AND, in so doing, I CAN NOT sue you for copyright infringement when you violate that contract. Nope. Can't do it. You had a license to my copyright!!
Instead, I have to sue you for violating the contract. BUT, I have to PROVE I had a contract with *YOU*. And I have to PROVE that certain REMEDIES were enumerated in the signed contract, AND that such REMEDIES were *LEGAL*.
Who here has ever had to sign a contract?? Probably most of you have had to go through the process.
Generally you have to initial several items, and/or you have to have an uninterested party play as a 'witness.' Not all contracts have the same requirements, naturally, many only require a signature. BUT, they ALL require AT LEAST a signature. Be that in ink, or electronically.
Oh.. electronically means I can just hit "I Agree" and I just signed the contract!?!?
NO!! There are legal requirements regarding electronic signatures!
One requirement is encryption!! YES IT IS **REQUIRED**. No encryption, no signature!
From the "SEAL", U.S. Law
Sec 3(g)
(g) ELECTRONIC AUTHENTICATION- The term `electronic authentication' means a cryptographic or other secure electronic technique that allows the user of the technique
(1) to authenticate the identity of or information associated with a sender of a document
(2) to determine that a document was not altered, changed, or modified during its transmission to a recipient, or
(3) to verify that a document received was sent by the identified party claiming to be the sender.
Not exactly the best example, but I'm lazy.
Sec 3(g)(1) is the biggest killer:
How does MacOS X identify you as being you?? You are not required to so much as enter your name, and THEN you are in no way required to prove you entered your OWN name, nor to prove you were legally permitted to sign such an agreement.
So the electronic signature is broken, by U.S. law at the very least.
THEN, where is the signature from an authorized party?? WHERE IS Apple's SIGNATURE???
Muwahahah!! NOT PRESENT NOT PRESENT!!
OOPS.. NULL AND VOID!
hmm.. so... no EULA == no license == purchase was CCM == YOU HAVE RIGHTS!
All this would be fixed if Apple were to place, clearly, on their MacOS X box: "MacOS X 10.5.2 License." And a nice little footnote stating that you must sign a contract BEFORE you can buy the software :-) You would need to have your license ready, or you would need a verifiable electronic method...
If you buy something that says "Apple MacOS X 10.5.2" You BOUGHT "Apple MacOS X 10.5.2." Being a copyrighted material, the law automatically distinguishes between a copy(CCM) and the copyright itself, so the product purchase is "CCM of Apple MacOS X 10.5.2, the storage medium, the container, and all contents therein, governed under all applicable laws."
When you buy a CCM, you can NOT be FORCED to change that into a RUL ( Restricted Usage License ). BUT, there is NO requirement from the authorizing party to make it easy for you to use their product if you don't do such a thing ( unless they say it is easy to use and install ;-) ).
Apple's method of selling at retail suggests a CCM sell is taking place, once you purchase this - all is well. Clicking "I Agree" isn't legally binding, not unless a credit card or something is used to assure you are who you say you are within all legal requirements.
So, as usual: Go Psystar!!
--The loon