Linked by Thom Holwerda on Sun 19th Feb 2006 16:26 UTC
Legal This week, one of the most-commented stories on OSNews was the story about how 'Maxxus' cracked/hacked (take your pick) the Intel version of Apple's OSX once again. This sparked a lively debate over whether we should encourage Maxxus, or condemn his actions. I made myself clear from the get-go: I condemn his actions. Note: This is the Sunday Eve Column of the week.
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An Ideal
by hauger on Mon 20th Feb 2006 03:53 UTC
Member since:
2005-12-05 this ever a topic that rings around in circles.

What really needs to happen here is for someone to take some software product (it really doesn't matter which one), and by being very careful to stay within the confines of the law, blatently and very publicly break the EULA on a big enough scale as to make the publisher of the software have to do something about it. This would provide a beautiful test case (and would serve as a great education for those here that cannot seem to make the distinction beween contract law and public law.....I bet it'd be areal eye opener for some).

Thing is, with these test cases concerning the EULA, no company is willing to test the legality of these contracts for fear of having them labeled unenforcable, the risk is to great to take when it concerns non-conected individuals.

Apple, however, makes for an interesting EULA testing ground. The reason why is that the hardware necessary for the Apple software to work is generic, off-the-shelf stuff. This means that distribution methods, the EULA, and maybe some DMCA (in the states) stuff is all that is keeping the Apple software from being installed on this generic hardware. That means that the forced purchase of Apple "branded" hardware (or, more appropriately, Apple assembled hardware) is being artifically upheld due to the EULA and distribution methods.

So, it could prove to be a heck of a test case for EULA's if it turns out that the distribution method lock-in is overcome by the availability of full retail boxes.

On a fun note.....Apple is currently engaged in a case of "Tying", which is an illegal business practice that basically states that if you sell software that runs on hardware that you make, and runs on hardware that you don't make, you cannot force people to buy the hardware you make. Simple. There are many, many precedents set in the past regarding this issue. Check out 1980's Data General case regarding the tying of the purchase of it's operating system to it's hardware. It was a no-no, and it was declared in violation of anti-trust laws. And in no way now, or ever, does the EULA override any public laws at all, including anti-trust laws.

Reply Score: 4

RE: An Ideal
by alcibiades on Mon 20th Feb 2006 07:57 in reply to "An Ideal"
alcibiades Member since:

"On a fun note.....Apple is currently engaged in a case of "Tying", which is an illegal business practice"

Yes, this is absolutely right, in the EC. There are two things you cannot do under EC competition law, one is linked sales, the other is post sales restrictions on use. The reason is that both are vehicles to elimination of competition. So, by linked sales, you would compel people to buy two products together, when there are two distinct market segments.

For example, as a Telco, you would oblige buyers of your network services to buy their customer premise equipment from you, and refuse to supply if they brought their own. Unlawful.

Or, you could try forbidding people to resell what they had bought, or perhaps forbidding them to use it for certain purposes or with some other products. Also unlawful: once you have bought it, its yours.

There is a third thing you seem to be unable to do, at least in the part of the EC that is the UK. That is, tell people in your product documentation that they do not have the rights which they have. So you cannot tell them it is ok for you to do linked sales or post sales restrictions on use.

Reply Parent Score: 3