Linked by Thom Holwerda on Mon 5th Oct 2009 21:45 UTC, submitted by JayDee
Hardware, Embedded Systems Just when you thought you saw it all. So, we all know about Psystar, the two lawsuits between them and Apple, and all the other stuff that's been regurgitated about ten million times on OSNews alone. Well, that little company has taken its business to the next level - by announcing an OEM licensing program.
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Bundled Sale
by AlexandreAM on Tue 6th Oct 2009 16:15 UTC
AlexandreAM
Member since:
2006-02-06

I'm not sure that (title) would be the correct term in English, but I'd like to add one small thing to the discussion:

Here in Brazil, according to the law[1] it is illegal to tie the sale of a good or offer of a service tied to the acquisition of another good or use of another service.

I am not a lawyer but, from reading the contents of the law I pretty much believe that is what Apple is doing in the case: if they're selling the installable discs for Mac OS X, then any EULA, Contract or whatever saying that I can only use it in Apple hardware it is a clause that violates previous law, and automatically rendered void.

So: Hey, Psystar! Come here to Brazil if all goes wrong anyways ;)

[1] http://www.planalto.gov.br/CCIVIL/leis/L8137.htm
Unfortunately, in Portuguese as I can't attempt to translate the legalese into English (not that skilled). But, for those interested it's in 5th Art. (Art. 5ยบ) II & III

Edited 2009-10-06 16:16 UTC

Reply Score: 2

RE: Bundled Sale
by wirespot on Wed 7th Oct 2009 08:05 in reply to "Bundled Sale"
wirespot Member since:
2006-06-21

Here in Brazil, according to the law[1] it is illegal to tie the sale of a good or offer of a service tied to the acquisition of another good or use of another service.


Yes, there are several countries with such laws and I thought about it. But I don't see that it applies.

* If you get a Mac you get OS X for free.
* You can get OS X separately and you don't have to get a Mac.

Yes, you can't do anything with that copy of OS X unless you have a Mac to use it with. But this particular law doesn't care about that.

Reply Parent Score: 2

RE[2]: Bundled Sale
by AlexandreAM on Wed 7th Oct 2009 15:12 in reply to "RE: Bundled Sale"
AlexandreAM Member since:
2006-02-06

You seem to be right, unfortunately. I've been talking to a lawyer and he seems to have an opinion quite similar to yours.

I'm in a hurry now, but when I have the time I'll try to post the transcript of those conversations here.

Reply Parent Score: 2

RE[2]: Bundled Sale
by alcibiades on Thu 8th Oct 2009 04:13 in reply to "RE: Bundled Sale"
alcibiades Member since:
2005-10-12

The relevant clause says that you may only install OSX on a machine you have bought from Apple. Other machines, whether they are technically suitable or not, are not permitted. There are a couple of reasons why this clause may be unenforceable.

One, it is linking the use of one product to the purchase of another. Yes, they sell OSX by itself, but the clause forbids use of it in anything but another product. It is similar to the auto aftermarket, if a car company forbade the use of third party parts. Or take another case, could Sony forbid you to play your CD on anything except a Sony CD player? No.

Two, it is imposing post sale restraints on use, which at least in the EC are problematic.

Three, it has problems with how the contract is entered into. Its what is called in the US a contract of adhesion - that is, you are presented with it with no choice in order to use the software you've bought. These are much easier to challenge than contracts entered into by negotiation.

Four, it is a secondary contract entered into without consideration.

Five, it appears to seek to modify the terms of a previous and completed transaction, the purchase transaction.

Six, the terms and conditions of the EULA are not presented for informed consent at the time of the sale, so cannot be argued to be terms and conditions on sale, if so they would violate most consumer protection laws.

What is really important about the case in question is that it positively affirms that the buyer of a retail copy, even one who buys a retail copy second hand, is covered by the protections of Title 17 S117. This blows up the argument that to install in violation of EULA is contrary to copyright law.

It still may be that the EULA is enforceable, we will see, but if so it will be as a matter of civil contract between Apple and the buyer, not as a matter of copyright law.

Reply Parent Score: 2