Apple serves DMCA notice to OSx86 Project - Page 4

It's an interesting point, but it's not true.

EULA is based upon copyright. EULA is recognized as a contract. as such it is as much law as any contract. But, as copyright gives specific rights, it is stronger than most contracts.

In the States where shrinkwrap is recognized, it is understood to be an "unnegotiated contract". Some States don't recognize that.

But, as I've already said, even in those States that do, companies will usually give your money back once you read the license, and don't accept it.

Not reading the EULA is no excuse. That's the fault of the user.

"EULA is based upon copyright"
not necessarily.

"In the States where shrinkwrap is recognized"
there is a distinction between shrinkwrap and clickwrap licenses and distinction is rather important in determining the validity of a contract regardless of state.

"Some States don't recognize that."
even states that don't (specifically) have adopted the ucc, which does.

Yes, it is.


I didn't say there wasn't.


Few States have adopted the UCC. It has been stopped in its tracks. It is EXTREMELY consumer unfriendly. Some States that have adopted it are considering rescinding it.

"Yes, it is"
well, that was certainly a well supported assertion. why would any licensing agreement have to be based on copyright law? seems that burger king isn't overly concerned with copyright law in the licensing agreement that they have with their franchisees, nor are land owners who license oil companies to drill on their land...

"I didn't say there wasn't"
nope, you didn't. however considering that you only mentioned shrinkwrap licenses (which have a much more tenuous status), it seemed like it was a important point to bring up.

"Few States have adopted the UCC"
personally, i wouldn't characterize 49 (in some part or version) as "few" but that's just me. you're probably thinking of ucita. however, all states other than la have adopted article 2 of the ucc which provides relevant authority for clickwrap licenses.

As we aren't talking about Burger King and franchises, which is what you are talking about there, not licenses, I didn't think to bring it up.

Shrinkwrap licenses are just as strongly supported, in the States that recognise them , as Click licenses are.

Yes, you are right, my mistake, I was thinking of UCITA.

LA is not a state.

It's a state of mind.

But Louisiana is

I'm sure he'll say he meant Louisiana.

"As we aren't talking about Burger King and franchises, which is what you are talking about there, not licenses, I didn't think to bring it up."
since the formation of a binding end user licensing agreement bears no greater onus than any other license, the license for any given franchise is as relevant as any other license. however if you feel that is too much of a stretch, the license that hertz have end users sign when they lease a car has nothing to do with copyrights. either way, i've provided much more support in proving a negative than you have supporting your assertion. why don't you make this easy and edify me by pointing out the statute that requires that eula's be based on copyright?

"Shrinkwrap licenses are just as strongly supported"
not even close. since a shrinkwrap license requires no affirmative action by the user, their validity as a binding contract is forced to rely on other factors. perhaps you should try to support your assertions, rather than just declaring them to be so.





"I'm sure he'll say he meant Louisiana."
considering that i was referring to states, la is the postal abbreviation for louisiana, and louisiana is the only state not adopt (in any part) the ucc (which was my assertion), it would be idiotic to claim otherwise.

As I recall Louisiana is under Nepoleonic (sp?) Law so things are bound to be different there . . .

With all of the legal arguments there seems to be one factor forgotten. As Mac owners we are on a pretty good wicket, as the Poms would say. Little old Apple with only 5% market share drops half a billion a year on R&D and delivers OS upgrades at a pretty good price - I get the family Pack under an edu discount and upgrade 5 Macs in the family for about $30 a Mac. Meanwhile PC users wait and wait for Longhorn/Vista and will be paying a large chunk of money for a full version when it is finally delivered.

If we move to a situation where PC users will be able to install OS X on their box with a little help from the hackers then I see the end of the $129 full version software packages, and the Family Packs as well. Apple might as well price their full versions at the same price as full versions of XP or Vista. You'll get the current one free with your Mac and then get the shaft on any new version. We might as well throw in all of the other crap Windows gives us, like a long string of numbers and letters to enter just to install the software and then on line activation.

If this does happen eventually I would have one suggestion for Apple. Farm out tech support for the PC users to India like Dell does (their solution is "You need to reinstall the operating system") and keep the great US support for those that actually are using a Mac.

Good to know you're a doc, lundy. Is there a Rx to help those with an uncontrollable urge to install OS X on a PC?

Ha! I have to admit, I once went to a restaurant where they did this. After I finished, they told me I couldn't take what I had left because it was a new recipe, and they didn't want anyone copying it. So, I left, told everyone what they did, and none of my friends/colleagues ever went there again. Of course that's easy when there are a gazillion other restaurants to choose from.

WTF?! On the contrary, you paid for the food and it should be yours to take home. If they tried to pull that crap on me I'd have a fit and would deduct the uneaten portion from the bill.

I'm all for certain elitist restaurants discouraging modifications to their perfect taste sensations, but if I want to add some salt or take the sucker home that's up to me.

Egads.

We're talking about different kinds of licenses here. A fishing license has nothing to do with copyright either, neither does a driving license.

I assumed that we were talking, for the sake of this discussion, about the licensing that results from copyright. Weren't we? Or am I mistaken?

If we were, and that's what this discussion started out with, then we should limit it to that. That's why I disagree that franchising pertains to what we are talking about.

Otherwise, EULA is based upon the rights given to the copyright holder. There doesn't have to be a statute requiring that EULA be based upon copyright, because if it weren't, it would not be valid, at least, not in those rights claimed. The EULA is merely a statement of those rights. It might be that a particular EULA claims rights in error, or that the copyright holders are deliberatly stretching. That would have to be decided in court.

"Shrinkwrap licenses are just as strongly supported"


Here is the opinion from the Supreme Court of the State of Washington on a dispute. As all opinions do, it references other cases as well.

http://caselaw.lp.findlaw.com/script...964maj&invol=1

A statement by the court:

"Although no Washington case specifically addresses the type of contract
formation at issue in this case, a series of recent cases from other
jurisdictions have analyzed shrinkwrap licenses under analogous statutes.
See Brower v. Gateway 2000, Inc., 246 A.D.2d 246, 250-51, 676 N.Y.S.2d 569
(1998); Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir.), cert. denied,
522 U.S. 808 (1997); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir.
1996)."

A guote from this from a case in another State, New York:

"Hill, 105 F.3d at 1150 (emphasis added).
Interpreting the same licensing agreement at issue in Hill, the New York
Supreme Court, Appellate Division concluded shrinkwrap license terms
delivered following a mail order purchase were not proposed additions to
the contract, but part of the original agreement between the parties.
Brower, 246 A.D.2d at 250-51. The court held U.C.C. section 2-207 did not
apply because the contract was not formed until after the period to return
the merchandise. Brower, 246 A.D.2d at 250.10"

And Wisconsin.

"In ProCD, which involved a retail purchase of software, the Seventh Circuit
held software shrinkwrap license agreements are a valid form of contracting
under Wisconsin's version of U.C.C. section 2-204, and such agreements are
enforceable unless objectionable under general contract law such as the law
of unconscionability. ProCD, 86 F.3d at 1449-52. The court stated,
'{n}otice on the outside, terms on the inside, and a right to return the
software for a refund if the terms are unacceptable (a right that the
license expressly extends), may be a means of doing business valuable to
buyers and sellers alike.' ProCD, 86 F.3d at 1451."

I never said that it had equal validity everywhere, just in those States that recognise it.

I happen to agree with t_vor on most of his points.

You may be right. Your 2:04 post yesterday popped the thumbscrews on my neurons and has warped something. Maybe you can restore balance to the force by reformatting it. I think I might be sorry for tarring you with gene on this one, but those thumbscrews need to be removed before I can think straight.

The only thing I can take in on this thread now is "blah, blah, blah, Ginger, blah, blah..."

"I assumed that we were talking, for the sake of this discussion, about the licensing that results from copyright"
this begs the question. you're attempting to support your assertion that "EULA is based upon copyright" by limiting the discussion to licensing that results from copyright. obviously, if the discussion is so limited, your assertion would have been unnecessary and redundant. taking this into consideration along with the facts that there had been no prior stipulation on the limitations of the discussion and that even licenses pertaining to copyrighted materials are under on onus to be based on copyright, i think i'll stick with my original statemnet.

"There doesn't have to be a statute requiring that EULA be based upon copyright, because if it weren't, it would not be valid, at least, not in those rights claimed"
nope. it would be easy to create a valid license that has as it's only stipulation that the material is only allowed to be read while wearing red pajamas. i may have missed it, but i'm pretty sure that there's nothing in copyright law about the color of one's pajamas.

all that i had said is that an eula is not necessarily based on copyright. since licenses may have nothing to do with copyrighted material or specify any modification to the rights available even dealing with copyrighted material, this seems like a rather reasonable assertion.

"I never said that it had equal validity everywhere, just in those States that recognise it."
however, that is simply not the case. the gateway cases neatly proves the point. had gateway employed a clickwrap license, a contract would have been formed immediately. since they used a shrinkwrap license instead, the affirmative action of not returning the merchandise in the alloted return period was required for the formation of the contract.

Once Apple fills out the rest of their hardware offerings, I hope most of the whining stops. The only major problem I ever had with Apple using PowerPC was the performance gap, which is now moot. The little extra cost involved in designing their own hardware is easily offset by the lack of driver problems Apple tech support and their customers have to deal with.

As for the difference in price, that's a VOLUME issue. Apple is in no worse a position than, say, Sony or IBM, to produce in mass quanites. The problem is demand for MacOS has always been hampered by the fact it doesn't run DOS/Windows programs which are considered essential or 'the standard' by the ignorant fools in other cubicles (and more omninously, offices in stories above).

I keep hearing how OS X would become massively popular if only it ran on clones. It wasn't true with OPENSTEP, and it wasn't true when Apple experimented with clones. Why does this old chestnut keep showing up? Throw it in the fire already!

Did you notice the name of the thread? We were talking about copyrights and such. Some have given bad examples that went astray. so, possibly the thread moved in that direction. But I'm not limiting this, I'm trying to keep it on track. If you want to bring everything else into it, fine, we can talk about license plates too.

You can stick with your statement. In its area, it's correct. I won't argue yhat.

"There doesn't have to be a statute requiring that EULA be based upon copyright, because if it weren't, it would not be valid, at least, not in those rights claimed"
nope. it would be easy to create a valid license that has as it's only stipulation that the material is only allowed to be read while wearing red pajamas. i may have missed it, but i'm pretty sure that there's nothing in copyright law about the color of one's pajamas.[/QUOTE]

You could write a license based on that, but it wouldn't have automatic protection as based in law that has laid down the parameters over two centuries. Licenses based upon copyright, trademark, and patents have the force of accepted law, and precedent. It could be done though.


I have never seen a EULA for copyighted materials (or patented, or trademarked) that wasn't based upon the laws earmarked for that purpose. Maybe you have. I'm curious. Have you an example?

"I never said that it had equal validity everywhere, just in those States that recognise it."
however, that is simply not the case. the gateway cases neatly proves the point. had gateway employed a clickwrap license, a contract would have been formed immediately. since they used a shrinkwrap license instead, the affirmative action of not returning the merchandise in the alloted return period was required for the formation of the contract.[/QUOTE]

Each law has its own requirements. The examples shown reflect that shrinkwrap has the force of law.

I'm sure that we can both find more examples.

LA==Louisiana!

If Apple offers a tower with a dual core proc, 1GB ram and an nVidia 7800 with 256 MB ram for ~$1599, I will shut up.

Looking at the powermac line, I dont see that happening because Apple seems addicted to ardificial handycapping.

"Did you notice the name of the thread?"
yep, not one word mentioned about licenses.

"We were talking about copyrights and such."
nope. i was simply asserting and subsequently supporting that end user license agreements are not necessarily based on copyright. on the other hand you seem to have been attempting to tailor definitions and history to make your statement more reasonable.

"If you want to bring everything else into it, fine, we can talk about license plates too."
i was perfectly happy with my statement implying that contracts don't necessarily have anything to do with copyrights and would have thought a couple examples would have been sufficient to point that out.

"In its area, it's correct."
it's area being contracts, which would include all eula's.

"You could write a license based on that, but it wouldn't have automatic protection as based in law that has laid down the parameters over two centuries."
assuming that the 2 centuries of law you're referring to is copyright law, you'd be wrong again. the material would still enjoy the same protections as a any printed material. by the same token one, one could not use it to bludgeon someone to death with. are you claiming that such a eula would also be based on murder statues?

"I have never seen a EULA for copyighted materials (or patented, or trademarked) that wasn't based upon the laws earmarked for that purpose. Maybe you have. I'm curious. Have you an example?"
yep. the most common of which are nda's.

"The examples shown reflect that shrinkwrap has the force of law."
and of course, one would want to note that i never asserted that shrinkwrap licenses could not be legally binding. my assertion was simply that there is a significant distinction between shrinkwrap and clickwrap licenses. due to the lack of any affirmative action the general concept of a shrinkwrap licenses does not constitute a binding contract and must rely on other factors. a clckwrap license, by definition, requires an affirmative action, so it doesn't suffer from this deficiency.

so let's do a quick review of my 3 rather simple assertions (all of which you've taken exception to).

1) eula's aren't necessarily based on copyright law - they aren't, they're based on contract law.

2) clickwrap licenses exist, differ from shrinkwrap licenses and are superior to shrinkwrap licenses - shrinkwraps rely on other factors which may or may not provide an affirmative action, while clickwraps do not. this is probably why there has been a shift to the use of clickwrap (including but not limited to apple software).

3) binding contracts can be formed via shrinkwrap and clickwrap licenses in most states - the ucc (which has been adopted in 49 states) "a contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract". while shrinkwrap licenses may or may not be covered, clickwraps definitely are. la passed a statute that expressly recognized the validity of shrinkwrap licenses, but it was later deemed to be unenforceable.

Yes! Totally. Not that you should shut up, that is.

But the $999 tower is something I so agree with. I even gave a couple of designs to friends in Apple's engineering management. Problem was that they liked the concepts, but said that "upstairs" wouldn't want to do one.

The fact is that OS X will be hacked to run on generic intel boxes and before Leopard 10.5 OS X UB/Intel goes on sale it will be SO cracked that nothing Apple can do will prevent it's running on generic boxes. The reason is, is that you can home build a white box for less than retail even Apple's retail and with larger hard drives and more ram than apple sells using the SAME high quality parts Apple uses. This exercise is simply allowing the crackers like Maxxus to exhaust Apple's possibilities to prevent it BEFORE Leopard OS X 10.5 goes on sale. Which means that excepting the iPod Apple will become eventually a software company in SOME respect, as there will be an underground market involved in building clones expressly for the purpose of putting cracked OS X on them. Hackers will continue to do as they wish. As they always have done. Nothing you or I or anyone can do will change this fact. At least Apple can expect the revenue from sales of Leopard OS X UB/Intel........unless even THAT is pirated and downloaded. But I expect that it will sell if it is priced reasonably......

No, that will be pirated too, just like all* the people running OSX on non-Apple kit today do.

* except for the mad ones that have bought an Intel DevKit, iMac or MacBookPro and have deleted the copy on the Apple kit.