“Psytar is violating Apple’s EULA.”
This is a very interesting statement. I always assumed that yes, Psystar is indeed violating Mac OS X’s EULA because it quite clearly states that you are not allowed to install it on anything else but an Apple-labelled computer.
However, recently, someone pointed out something very interesting to me. We all know what “EULA” stands for, right? Let’s just spell it out: End User License Agreement. The important bit? End User License Agreement. So, who is this “end user” you speak of, oh EULA?
If I go to Psystar’s website to buy a computer, and I ask them to install Mac OS X for me as part of the sale, then who is the end user? Wouldn’t I, the customer, be the end user? I bought an iMac for my father a few months ago. I set-up the operating system and all the accompanying software for him. Who is the end user in that scenario? Me? My father? Now, replace “me” with “Psystar” and “father” with “customer”. You see the difficulty here, right?
What constitutes as the “end user” is not as clear as you might think it is. It is by no means clear that Psystar is the end user in this scenario. In the same way that I am not the end user for my father’s iMac, Psystar is not the end user for the copies of Mac OS X it installs.
However, even if it was legally set that Psystar is indeed the end user, and has therefore violated Mac OS X’s EULA, then that still does not necessarily mean Psystar is in the wrong. This is where the following statement comes into play.
“Software is licensed, not sold.”
Now here we have something software companies would like you to believe. Licensing a product for use instead of actually selling it is not a very strange thing. It happens everywhere, but the best example I have is a very nice (sorry people) car analogy: Ferrari’s FXX.
For those not in the know, the Ferrari FXX is a very special car – even within the sports car maker’s portfolio, the FXX stands on a pedestal all of its own. The FXX is a car used by Ferrari to test innovations on an actual, existing car. The usual course of action car companies take in these cases is to produce a number of prototype cars and have them tested extensively by Ferrari-employed test drivers.
For the FXX, however, the Italian company took a different route. They decided to invite special Ferrari customers to take part in the FXX program. These customers would hand over an enormous amount of money – but that amount would not actually buy them that car. All it bought them was the privilege to drive the FXX on certain tracks on certain days of the year, all determined by Ferrari. The FXX would remain the property of Ferrari.
In other words, you pay for a license to use the FXX, all within terms dictated by Ferrari. That eery sense of dejÃ vu you’re feeling is because this is exactly the same model software makers use. However, with one, big, inescapable difference: Ferrari is honest and up-front about the FXX. When you buy into the FXX program, you know you are only buying the privilege to occasionally use the car, and not the actual car itself. This is all part of the actual agreement between you and Ferrari, and this is presented before and during the sale.
Software makers are not honest and upfront about it. When you go to a store to buy software, software makers do nothing to make it clear to you that you are not buying a copy of the software, but are in fact only paying for the privilege to use it under arbitrary terms dictated by the software maker. Only after the sale is completed, and the transaction of money and goods has taken place, do software makers point it out to you that a) you do not own what you just paid for, and b) the terms under which you are allowed to use it.
This is a post-sale restriction, and in many jurisidictions, they are quite frowned upon. If software makers like Apple want to license their products (like the FXX) instead of actually selling them, then they have to make this clear before and during the purchase. In addition, they have to make you agree – properly! – to the terms under which you may use the software. Sure, this would be a massive hassle for software companies, but in all honesty? I don’t care.
Rules are rules, and software companies will have to live by them just as any other company has to. I find it quite perplexing how people are willing to swallow whatever crazy thing software companies do. It is time we start protecting our rights, instead of limiting them just because we like Apple so much.
I’m not sure if what they are doing is legal or moral.
But I do know that its in their best interests to keep the trial going as long as possible ( assuming their legal costs are covered by the profit margins of their products and services). If they lose, they can’t continue their current business model. If they win, Dell and every other big computer maker will jump on the bandwagon killing their margins.