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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RE[2]: Bundled Sale
by alcibiades on Thu 8th Oct 2009 04:13 UTC 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.

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