What Is the Issue in the Psystar Case?
Linked by Nescio on Mon 9th Mar 2009 08:05 UTC
Apple 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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rajan r
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*

Reply Parent Score: 1

looncraz 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

Reply Parent Score: 2