Pardon? Apple created this situation all on their own. Just because they insist on their "each version of OS X is just 129" marketing dance, they refuse to print "Upgrade" on the retail box. This one word alone would solve the problem in the US and Germany, once and for all. Any OEM reselling an upgrade as a full version could be stopped in 24 hours (and it would not cost Apple a penny). Offer a full version for 2,000 USD and the upgrade for 129 USD, and watch these idiots go away. And if somebody should ever buy the "full version" for 2,000... so what?
You probably miss the part where Jobs said that there is only one version of Mac OSX Leopard which costs $129.
This is a very interesting situation developing. Apple are claiming a breach of their EULA, but just how sound a legal basis does the EULA actually have?
It is not really a very interesting situation. Software EULA's are known as among the most unfair, anti-consumer contracts in the whole field of contract law. When you crack open the box or break some seal, you are "signing" this contract as-is. You have no chance to reject or request an amendment of some of the terms. In reality, you don't have a chance to read it before you've accepted it (technically, there is a process to do so, but it is onerous enough to be impractical.)
I've always wondered what happens when a minor buys and installs software. Minors can't enter into contracts, so does that make the EULA null and void for that installation?
Nevertheless, to a court the EULA appears to be a legally binding agreement entered into freely by both parties, even if it is tilted one-sidedly in favor of one of the parties. Unless the judge is willing to "legislate from the bench," consumers (and Psystar) are going to lose every time.
Until consumers rise up and demand that Congress pass laws to protect consumers from unfair EULA's, we are just going to have to suck it up and accept the consequences of our collective inaction.
Quote:
What legal right does the seller have over a product that they have sold?
If they are guaranteeing or warrantying the product, they have plenty of rights concerning the product they have sold. Millions of products contain terms that specify that certain things limit or void warranties or can forfeit your right to return them.
You probably miss the part where Jobs said that there is only one version of Mac OSX Leopard which costs $129.
??? I did not "miss it" - actually I called it a "marketing dance", you even quoted it.
And, btw, there has never been only one version. There are versions shipping with Macs (full versions), there are drop-in versions (during free upgrade eligibility periods), there are retail versions (single and family pack, both are actually upgrades, as this is what the EULA says) and there are server versions. There are many versions of Mac OS X Leopard ? there is only one for $129, and that's only an upgrade. If they would name it an upgrade, lawyers, Psystar and PearC would loose, Apple and it's shareholders would not.
It is not really a very interesting situation. Software EULA's are known as among the most unfair, anti-consumer contracts in the whole field of contract law. When you crack open the box or break some seal, you are "signing" this contract as-is. You have no chance to reject or request an amendment of some of the terms. In reality, you don't have a chance to read it before you've accepted it (technically, there is a process to do so, but it is onerous enough to be impractical.)
Legally you can reject the EULA and return the product for a refund. In case of Mac OS the EULA gives buyers the right to reject the EULA and return the product for a refund. It is written in the first paragraph of the EULA.
Did anyone one notice that Mac OS X DVD that come with the new unibody MB and MBP cannot be installed on other Macs?!
Am I missing something here? In order to run on generic PC's, doesn't OS X have to be heavily modified to boot on EFI, including modifying the kernel? Doesn't that involve Psystar and their ilk distributing a derivative work, thus violating Apple's copyright?
I don't get the argument that they're taking the shrink-wrapped copy of OS X and installing on their hardware. If understand correctly, that's *not* what they're doing at all. And if they are doing that, they still need to distribute Apple's updates, which would have to be modified, thus distributing a derivative work.
I have no idea why Psystar's case hasn't been treated like the open and shut case that it is. Perhaps the judge is non-technical, and needs expert witnesses to spell out the above?
This is a very interesting situation developing. Apple are claiming a breach of their EULA, but just how sound a legal basis does the EULA actually have?
Well, in Germany Apple's chances are low, close to zero actually. No consumer has to review the EULA on a Web page (and, in theory, how would he/she get there without an OS), conditions hidden in the box have never been declared valid by a court, and no consumer has to "know" what Apple means by "Mac" in the system requirements either (if I install OS X on my Lenovo X200, it will say "About this Mac" right there in the Apple menu; and to my mother a "Mac" is a burger). Actually, if a consumer would sue Apple for hiding the "Upgrade only" condition inside the box, he/she would have a pretty strong case, as it can easily be seen as deceit.
I assume Apple will silently change the retail (and maybe protection) concept for 10.6, and all of these trials will be meaningless by the time they take place.
... And, btw, there has never been only one version. There are versions shipping with Macs (full versions), there are drop-in versions (during free upgrade eligibility periods), there are retail versions ...
I'm not disagreeing with the main thrust of your argument, but this statement seems a bit backwards to me.
It used to be that there was only one version. It's only with the advent of the intel machines that the grey install/restore discs on individual purchases started to not work on another machine. I don't know about the distant, distant past, but up until that point, a techie could have a single disc of the OS that worked for all machines.
It was really frustrating when they started to change that and it will be more frustrating when they start to tie the OS to the machine even more. All because a bunch of a-hole, thieving opportunists are trying to make a buck off of someone else's work.
What I find ironic is that the kind of folks that are setting themselves up as clone dealers are actually the same folks that would have peed all over Apple in the past (and probably did). They talk a line about advocating freedom of choice and that they just want to get the people what they want and so forth, but they are obviously not even slightly concerned with truth, justice, freedom etc. Capitalism brings out the scum-bag in us all I guess.
They are offering 9800 NVidia, is there even drivers for this in OSX ?
Very attempting in the light of how slow the new iMAC and Mac Pro are coming to market. Apple get your finger out, where's the new iMAC with quad core ?
If I were Apple, and I actually lost this case I think I'd pull all my products from the German market. I could actually see Apple of all companies doing this
*lol*, revenge isn't a successful business strategy... That's the stupidest thing I've heard in a while.
No, it just says Mac computer with Intel, PPC G5, or PPC G4 processor (867 MHz or faster). It doesn't specifically say Apple branded computer and you can't just assume Mac computer means Apple branded. Assumptions don't hold up in court!
Quote:
Originally Posted by Londor
A Mac is an Apple branded computer. There are no assumptions to be made here.
Yup, same discussion we had last week regarding Psystar. The box, and the web site, clearly state the Leopard requires a Mac. Only Apple makes Macs. The EULA only provides additional details about the restriction the buyer should have been aware of prior to their purchase.
Quote:
Originally Posted by macFanDave
It is not really a very interesting situation. Software EULA's are known as among the most unfair, anti-consumer contracts in the whole field of contract law. When you crack open the box or break some seal, you are "signing" this contract as-is. You have no chance to reject or request an amendment of some of the terms. In reality, you don't have a chance to read it before you've accepted it (technically, there is a process to do so, but it is onerous enough to be impractical.)
I've always wondered what happens when a minor buys and installs software. Minors can't enter into contracts, so does that make the EULA null and void for that installation?
Nevertheless, to a court the EULA appears to be a legally binding agreement entered into freely by both parties, even if it is tilted one-sidedly in favor of one of the parties. Unless the judge is willing to "legislate from the bench," consumers (and Psystar) are going to lose every time.
Until consumers rise up and demand that Congress pass laws to protect consumers from unfair EULA's, we are just going to have to suck it up and accept the consequences of our collective inaction.
If they are guaranteeing or warrantying the product, they have plenty of rights concerning the product they have sold. Millions of products contain terms that specify that certain things limit or void warranties or can forfeit your right to return them.
I'm going to perhaps walk a fine line here... I agree there are serious problems with EULA, but there are only parts of them that I most strongly have issues with. I believe companies have the right to protect their intellectual property and support their intended business model, which is the root of this particular issue. These clone makers should not be able to take advantage of technicalities like this which take unfair (in my opinion) advantage of Apple making installing OS X easy for their legitamate customers (ie, those who have purchase Macs).
Apple could make things more difficult, and more clearly illegal, for the cloners; but they don't in order to make things better for the end customers. Apple seems willing to turn a blind eye from the hobbiest hackintoshes, but these attempts to make a commercial business out of it will only end up making things more difficult for Apple's customers (and the small number of hobbiests). How is that in any sense better for anyone?
The part of EULAs that I have the biggest issue with is where the vendors are able to disavow all responsibility for bugs in their software, security issues their software casues, damage which it may do to our systems, and promised features that don't work as advertised. Is there any other industry that gets to put out crap and not be responsible for the damage it does or for not delivering what they said it would? Imagine if I produced a car part that damaged your engine or didn't perform the function I said it did. It would get recalled in a heartbeat.
I'm not disagreeing with the main thrust of your argument, but this statement seems a bit backwards to me.
...
What I find ironic is that the kind of folks that are setting themselves up as clone dealers are actually the same folks that would have peed all over Apple in the past (and probably did). They talk a line about advocating freedom of choice and that they just want to get the people what they want and so forth, but they are obviously not even slightly concerned with truth, justice, freedom etc. Capitalism brings out the scum-bag in us all I guess.
Well, backwards maybe... just, it remains a fact that Apple is mislabeling upgrades. Every legit Mac user knows that, and has no reason to be concerned about it ? if you own any Apple computer, you are eligible. Easy. Unfortunately the very same thing opens the door for these vultures without any need. Would Apple customers not buy their Leopard Upgrade for $129, if it said "upgrade" on the box? Very unlikely, IMHO.
It is more natural than ironic. The desktop PC market is shrinking, ASPs are going down, and people do pay more for computers running OS X, than they are willing to pay for Windows machines with similar specs (especially now that most people start delaying purchases until Windows 7 is available), and there is less/no competition... of course everybody wants this money. The sad thing is, that Apple with it's very limited line-up and dated entry-level systems is proactively putting fuel into that fire.
It is not really a very interesting situation. Software EULA's are known as among the most unfair, anti-consumer contracts in the whole field of contract law. When you crack open the box or break some seal, you are "signing" this contract as-is. You have no chance to reject or request an amendment of some of the terms. In reality, you don't have a chance to read it before you've accepted it (technically, there is a process to do so, but it is onerous enough to be impractical.)
I've always wondered what happens when a minor buys and installs software. Minors can't enter into contracts, so does that make the EULA null and void for that installation?
Nevertheless, to a court the EULA appears to be a legally binding agreement entered into freely by both parties, even if it is tilted one-sidedly in favor of one of the parties. Unless the judge is willing to "legislate from the bench," consumers (and Psystar) are going to lose every time.
Until consumers rise up and demand that Congress pass laws to protect consumers from unfair EULA's, we are just going to have to suck it up and accept the consequences of our collective inaction.
If they are guaranteeing or warrantying the product, they have plenty of rights concerning the product they have sold. Millions of products contain terms that specify that certain things limit or void warranties or can forfeit your right to return them.
I think we are pretty much in agreement here. A EULA is a dictat from a private corporation that they try to pretend is 'the law', which is why they have avoided the headline test-case in the courts. I'm not sure about the US, but certainly in the UK a judge could rule against a EULA if they thought it contravened a consumer's legal rights. This is why this German company sound so confident. I presume they have checked EU consumer law and have found that a EULA has no legal standing, so if Apple sue they will lose and the whole EULA shebang would fall apart.
Excellent point about minors and contract law! Presumably all PsyStar would have to do is send a kid to buy the OS and no legal contract would be in place!
re sellers' post-sale control. Yes a warranty could be invalidated by the user failing to comply (as long as the demands of the warranty were not unreasonable and would stand up in court) but if say, you bought a zune and then smashed it up with a hammer you would probably have invalidated your warranty, but nonetheless you still have the legal right to smash it up if you so desire.
"The German law says explicit[ly], that restrictions made after buying a product are not valid," Bloessl said. "So, because Apple's EULA can [only] be first read after buying and starting the setup, they are invalid in Germany."
So, I wonder how that would fly if a German citizen bought a BMW or Mercedes Benz car and then German law makers passed laws for drivers after the fact. Does that mean the driver can legally ignore any new driving law that they were unable to read before purchasing their new vehicle and thus simply ignore those laws or at the very least, beat in court, any moving violation ticket they receive?
Well, in Germany Apple's chances are low, close to zero actually. No consumer has to review the EULA on a Web page (and, in theory, how would he/she get there without an OS), conditions hidden in the box have never been declared valid by a court, and no consumer has to "know" what Apple means by "Mac" in the system requirements either (if I install OS X on my Lenovo X200, it will say "About this Mac" right there in the Apple menu; and to my mother a "Mac" is a burger). Actually, if a consumer would sue Apple for hiding the "Upgrade only" condition inside the box, he/she would have a pretty strong case, as it can easily be seen as deceit.
I assume Apple will silently change the retail (and maybe protection) concept for 10.6, and all of these trials will be meaningless by the time they take place.
Agree there is some vaguess. So would printing "Upgrade for Apple Macintosh computers" on the box make the legal challenges go away? I suspsect Apple would still need to incorporate some addtional security. Windows Activiation hell, here we come!
I think we are pretty much in agreement here. A EULA is a dictat from a private corporation that they try to pretend is 'the law', which is why they have avoided the headline test-case in the courts. I'm not sure about the US, but certainly in the UK a judge could rule against a EULA if they thought it contravened a consumer's legal rights. This is why this German company sound so confident. I presume they have checked EU consumer law and have found that a EULA has no legal standing, so if Apple sue they will lose and the whole EULA shebang would fall apart. ....
I think you are painting with too broad of a brush here.
A EULA is not worthless and not really a dictat. It's just a contract of questionable authority.
The Germans haven't found that a EULA "has no legal standing," they merely invalidated one of the most questionable aspects of the EULA (that it has to be agreed upon sight unseen). Putting the EULA on the outside of the box would make the EULA a legal contract again even in Germany.
So, I wonder how that would fly if a German citizen bought a BMW or Mercedes Benz car and then German law makers passed laws for drivers after the fact.
A federal law applies to all people residing or staying in a country. An EULA hidden in the box is a contract that only one party has signed. EULA <> Law and Apple <> Federal Government. I think (hope) not even Apple is confusing this
Legally you can reject the EULA and return the product for a refund. In case of Mac OS the EULA gives buyers the right to reject the EULA and return the product for a refund. It is written in the first paragraph of the EULA.
And how likely is this going to happen?
I have a Mac and look at the terms of Snow Leopard and don't like something. You are suggesting that I return Snow Leopard for a FULL refund and install FreeBSD or Linux on my Mac? Are you nucking futs?!
Your understanding of "rights" is high up in the academic ether. In the real world, the writers of the EULA's have us over a barrel. Happily for me, Apple's EULA doesn't offend me -- I believe that Apple's tight (some might say monopolistic) integration of hardware, software and OS is a valuable advantage in reliability, ease-of-use and consistency. I willingly buy into the monopoly. Anyone who wants to install OS X on non-Apple hardware is going to get screwed, one way or another. Barring the remote possibility of getting your illegal clone confiscated and being fined or jailed for that, the most realistic downside of using non-Apple software is your loss of support from Apple. For some go-it-alone self-reliant types, that's no big deal, but for most people, that would be a devastating loss.
Isn't there a notice of the EULA on the box with a url to read the EULA before purchase?
Exactly. I've never seen such a weak argument as that presented by the stupid germans...EULAs are, BY DEFINITION, supposed to be read and agreed upon BEFORE you open packages and/or start using a company's products...this is the essence of a shrink-wrap license anywhere in the world.
This one won't even get past the preliminary hearings.
Comments
Pardon? Apple created this situation all on their own. Just because they insist on their "each version of OS X is just 129" marketing dance, they refuse to print "Upgrade" on the retail box. This one word alone would solve the problem in the US and Germany, once and for all. Any OEM reselling an upgrade as a full version could be stopped in 24 hours (and it would not cost Apple a penny). Offer a full version for 2,000 USD and the upgrade for 129 USD, and watch these idiots go away. And if somebody should ever buy the "full version" for 2,000... so what?
You probably miss the part where Jobs said that there is only one version of Mac OSX Leopard which costs $129.
Screw serials and crap. Has everyone went nuts here?
If they are not afraid of Apple, I will quote Yoda. "You will be. You will be."
I hope so
('went' nuts?)
This is a very interesting situation developing. Apple are claiming a breach of their EULA, but just how sound a legal basis does the EULA actually have?
It is not really a very interesting situation. Software EULA's are known as among the most unfair, anti-consumer contracts in the whole field of contract law. When you crack open the box or break some seal, you are "signing" this contract as-is. You have no chance to reject or request an amendment of some of the terms. In reality, you don't have a chance to read it before you've accepted it (technically, there is a process to do so, but it is onerous enough to be impractical.)
I've always wondered what happens when a minor buys and installs software. Minors can't enter into contracts, so does that make the EULA null and void for that installation?
Nevertheless, to a court the EULA appears to be a legally binding agreement entered into freely by both parties, even if it is tilted one-sidedly in favor of one of the parties. Unless the judge is willing to "legislate from the bench," consumers (and Psystar) are going to lose every time.
Until consumers rise up and demand that Congress pass laws to protect consumers from unfair EULA's, we are just going to have to suck it up and accept the consequences of our collective inaction.
What legal right does the seller have over a product that they have sold?
If they are guaranteeing or warrantying the product, they have plenty of rights concerning the product they have sold. Millions of products contain terms that specify that certain things limit or void warranties or can forfeit your right to return them.
You probably miss the part where Jobs said that there is only one version of Mac OSX Leopard which costs $129.
??? I did not "miss it" - actually I called it a "marketing dance", you even quoted it.
And, btw, there has never been only one version. There are versions shipping with Macs (full versions), there are drop-in versions (during free upgrade eligibility periods), there are retail versions (single and family pack, both are actually upgrades, as this is what the EULA says) and there are server versions. There are many versions of Mac OS X Leopard ? there is only one for $129, and that's only an upgrade. If they would name it an upgrade, lawyers, Psystar and PearC would loose, Apple and it's shareholders would not.
It is not really a very interesting situation. Software EULA's are known as among the most unfair, anti-consumer contracts in the whole field of contract law. When you crack open the box or break some seal, you are "signing" this contract as-is. You have no chance to reject or request an amendment of some of the terms. In reality, you don't have a chance to read it before you've accepted it (technically, there is a process to do so, but it is onerous enough to be impractical.)
Legally you can reject the EULA and return the product for a refund. In case of Mac OS the EULA gives buyers the right to reject the EULA and return the product for a refund. It is written in the first paragraph of the EULA.
Did anyone one notice that Mac OS X DVD that come with the new unibody MB and MBP cannot be installed on other Macs?!
I don't get the argument that they're taking the shrink-wrapped copy of OS X and installing on their hardware. If understand correctly, that's *not* what they're doing at all. And if they are doing that, they still need to distribute Apple's updates, which would have to be modified, thus distributing a derivative work.
I have no idea why Psystar's case hasn't been treated like the open and shut case that it is. Perhaps the judge is non-technical, and needs expert witnesses to spell out the above?
This is a very interesting situation developing. Apple are claiming a breach of their EULA, but just how sound a legal basis does the EULA actually have?
Well, in Germany Apple's chances are low, close to zero actually. No consumer has to review the EULA on a Web page (and, in theory, how would he/she get there without an OS), conditions hidden in the box have never been declared valid by a court, and no consumer has to "know" what Apple means by "Mac" in the system requirements either (if I install OS X on my Lenovo X200, it will say "About this Mac" right there in the Apple menu; and to my mother a "Mac" is a burger). Actually, if a consumer would sue Apple for hiding the "Upgrade only" condition inside the box, he/she would have a pretty strong case, as it can easily be seen as deceit.
I assume Apple will silently change the retail (and maybe protection) concept for 10.6, and all of these trials will be meaningless by the time they take place.
... And, btw, there has never been only one version. There are versions shipping with Macs (full versions), there are drop-in versions (during free upgrade eligibility periods), there are retail versions ...
I'm not disagreeing with the main thrust of your argument, but this statement seems a bit backwards to me.
It used to be that there was only one version. It's only with the advent of the intel machines that the grey install/restore discs on individual purchases started to not work on another machine. I don't know about the distant, distant past, but up until that point, a techie could have a single disc of the OS that worked for all machines.
It was really frustrating when they started to change that and it will be more frustrating when they start to tie the OS to the machine even more. All because a bunch of a-hole, thieving opportunists are trying to make a buck off of someone else's work.
What I find ironic is that the kind of folks that are setting themselves up as clone dealers are actually the same folks that would have peed all over Apple in the past (and probably did). They talk a line about advocating freedom of choice and that they just want to get the people what they want and so forth, but they are obviously not even slightly concerned with truth, justice, freedom etc. Capitalism brings out the scum-bag in us all I guess.
Very attempting in the light of how slow the new iMAC and Mac Pro are coming to market. Apple get your finger out, where's the new iMAC with quad core ?
If I were Apple, and I actually lost this case I think I'd pull all my products from the German market. I could actually see Apple of all companies doing this
*lol*, revenge isn't a successful business strategy... That's the stupidest thing I've heard in a while.
No, it just says Mac computer with Intel, PPC G5, or PPC G4 processor (867 MHz or faster). It doesn't specifically say Apple branded computer and you can't just assume Mac computer means Apple branded. Assumptions don't hold up in court!
A Mac is an Apple branded computer. There are no assumptions to be made here.
Yup, same discussion we had last week regarding Psystar. The box, and the web site, clearly state the Leopard requires a Mac. Only Apple makes Macs. The EULA only provides additional details about the restriction the buyer should have been aware of prior to their purchase.
It is not really a very interesting situation. Software EULA's are known as among the most unfair, anti-consumer contracts in the whole field of contract law. When you crack open the box or break some seal, you are "signing" this contract as-is. You have no chance to reject or request an amendment of some of the terms. In reality, you don't have a chance to read it before you've accepted it (technically, there is a process to do so, but it is onerous enough to be impractical.)
I've always wondered what happens when a minor buys and installs software. Minors can't enter into contracts, so does that make the EULA null and void for that installation?
Nevertheless, to a court the EULA appears to be a legally binding agreement entered into freely by both parties, even if it is tilted one-sidedly in favor of one of the parties. Unless the judge is willing to "legislate from the bench," consumers (and Psystar) are going to lose every time.
Until consumers rise up and demand that Congress pass laws to protect consumers from unfair EULA's, we are just going to have to suck it up and accept the consequences of our collective inaction.
If they are guaranteeing or warrantying the product, they have plenty of rights concerning the product they have sold. Millions of products contain terms that specify that certain things limit or void warranties or can forfeit your right to return them.
I'm going to perhaps walk a fine line here... I agree there are serious problems with EULA, but there are only parts of them that I most strongly have issues with. I believe companies have the right to protect their intellectual property and support their intended business model, which is the root of this particular issue. These clone makers should not be able to take advantage of technicalities like this which take unfair (in my opinion) advantage of Apple making installing OS X easy for their legitamate customers (ie, those who have purchase Macs).
Apple could make things more difficult, and more clearly illegal, for the cloners; but they don't in order to make things better for the end customers. Apple seems willing to turn a blind eye from the hobbiest hackintoshes, but these attempts to make a commercial business out of it will only end up making things more difficult for Apple's customers (and the small number of hobbiests). How is that in any sense better for anyone?
The part of EULAs that I have the biggest issue with is where the vendors are able to disavow all responsibility for bugs in their software, security issues their software casues, damage which it may do to our systems, and promised features that don't work as advertised. Is there any other industry that gets to put out crap and not be responsible for the damage it does or for not delivering what they said it would? Imagine if I produced a car part that damaged your engine or didn't perform the function I said it did. It would get recalled in a heartbeat.
I'm not disagreeing with the main thrust of your argument, but this statement seems a bit backwards to me.
...
What I find ironic is that the kind of folks that are setting themselves up as clone dealers are actually the same folks that would have peed all over Apple in the past (and probably did). They talk a line about advocating freedom of choice and that they just want to get the people what they want and so forth, but they are obviously not even slightly concerned with truth, justice, freedom etc. Capitalism brings out the scum-bag in us all I guess.
Well, backwards maybe... just, it remains a fact that Apple is mislabeling upgrades. Every legit Mac user knows that, and has no reason to be concerned about it ? if you own any Apple computer, you are eligible. Easy. Unfortunately the very same thing opens the door for these vultures without any need. Would Apple customers not buy their Leopard Upgrade for $129, if it said "upgrade" on the box? Very unlikely, IMHO.
It is more natural than ironic. The desktop PC market is shrinking, ASPs are going down, and people do pay more for computers running OS X, than they are willing to pay for Windows machines with similar specs (especially now that most people start delaying purchases until Windows 7 is available), and there is less/no competition... of course everybody wants this money. The sad thing is, that Apple with it's very limited line-up and dated entry-level systems is proactively putting fuel into that fire.
It is not really a very interesting situation. Software EULA's are known as among the most unfair, anti-consumer contracts in the whole field of contract law. When you crack open the box or break some seal, you are "signing" this contract as-is. You have no chance to reject or request an amendment of some of the terms. In reality, you don't have a chance to read it before you've accepted it (technically, there is a process to do so, but it is onerous enough to be impractical.)
I've always wondered what happens when a minor buys and installs software. Minors can't enter into contracts, so does that make the EULA null and void for that installation?
Nevertheless, to a court the EULA appears to be a legally binding agreement entered into freely by both parties, even if it is tilted one-sidedly in favor of one of the parties. Unless the judge is willing to "legislate from the bench," consumers (and Psystar) are going to lose every time.
Until consumers rise up and demand that Congress pass laws to protect consumers from unfair EULA's, we are just going to have to suck it up and accept the consequences of our collective inaction.
If they are guaranteeing or warrantying the product, they have plenty of rights concerning the product they have sold. Millions of products contain terms that specify that certain things limit or void warranties or can forfeit your right to return them.
I think we are pretty much in agreement here. A EULA is a dictat from a private corporation that they try to pretend is 'the law', which is why they have avoided the headline test-case in the courts. I'm not sure about the US, but certainly in the UK a judge could rule against a EULA if they thought it contravened a consumer's legal rights. This is why this German company sound so confident. I presume they have checked EU consumer law and have found that a EULA has no legal standing, so if Apple sue they will lose and the whole EULA shebang would fall apart.
Excellent point about minors and contract law! Presumably all PsyStar would have to do is send a kid to buy the OS and no legal contract would be in place!
re sellers' post-sale control. Yes a warranty could be invalidated by the user failing to comply (as long as the demands of the warranty were not unreasonable and would stand up in court) but if say, you bought a zune and then smashed it up with a hammer you would probably have invalidated your warranty, but nonetheless you still have the legal right to smash it up if you so desire.
"The German law says explicit[ly], that restrictions made after buying a product are not valid," Bloessl said. "So, because Apple's EULA can [only] be first read after buying and starting the setup, they are invalid in Germany."
So, I wonder how that would fly if a German citizen bought a BMW or Mercedes Benz car and then German law makers passed laws for drivers after the fact. Does that mean the driver can legally ignore any new driving law that they were unable to read before purchasing their new vehicle and thus simply ignore those laws or at the very least, beat in court, any moving violation ticket they receive?
Well, in Germany Apple's chances are low, close to zero actually. No consumer has to review the EULA on a Web page (and, in theory, how would he/she get there without an OS), conditions hidden in the box have never been declared valid by a court, and no consumer has to "know" what Apple means by "Mac" in the system requirements either (if I install OS X on my Lenovo X200, it will say "About this Mac" right there in the Apple menu; and to my mother a "Mac" is a burger). Actually, if a consumer would sue Apple for hiding the "Upgrade only" condition inside the box, he/she would have a pretty strong case, as it can easily be seen as deceit.
I assume Apple will silently change the retail (and maybe protection) concept for 10.6, and all of these trials will be meaningless by the time they take place.
Agree there is some vaguess. So would printing "Upgrade for Apple Macintosh computers" on the box make the legal challenges go away? I suspsect Apple would still need to incorporate some addtional security. Windows Activiation hell, here we come!
I think we are pretty much in agreement here. A EULA is a dictat from a private corporation that they try to pretend is 'the law', which is why they have avoided the headline test-case in the courts. I'm not sure about the US, but certainly in the UK a judge could rule against a EULA if they thought it contravened a consumer's legal rights. This is why this German company sound so confident. I presume they have checked EU consumer law and have found that a EULA has no legal standing, so if Apple sue they will lose and the whole EULA shebang would fall apart. ....
I think you are painting with too broad of a brush here.
A EULA is not worthless and not really a dictat. It's just a contract of questionable authority.
The Germans haven't found that a EULA "has no legal standing," they merely invalidated one of the most questionable aspects of the EULA (that it has to be agreed upon sight unseen). Putting the EULA on the outside of the box would make the EULA a legal contract again even in Germany.
So, I wonder how that would fly if a German citizen bought a BMW or Mercedes Benz car and then German law makers passed laws for drivers after the fact.
A federal law applies to all people residing or staying in a country. An EULA hidden in the box is a contract that only one party has signed. EULA <> Law and Apple <> Federal Government. I think (hope) not even Apple is confusing this
Legally you can reject the EULA and return the product for a refund. In case of Mac OS the EULA gives buyers the right to reject the EULA and return the product for a refund. It is written in the first paragraph of the EULA.
And how likely is this going to happen?
I have a Mac and look at the terms of Snow Leopard and don't like something. You are suggesting that I return Snow Leopard for a FULL refund and install FreeBSD or Linux on my Mac? Are you nucking futs?!
Your understanding of "rights" is high up in the academic ether. In the real world, the writers of the EULA's have us over a barrel. Happily for me, Apple's EULA doesn't offend me -- I believe that Apple's tight (some might say monopolistic) integration of hardware, software and OS is a valuable advantage in reliability, ease-of-use and consistency. I willingly buy into the monopoly. Anyone who wants to install OS X on non-Apple hardware is going to get screwed, one way or another. Barring the remote possibility of getting your illegal clone confiscated and being fined or jailed for that, the most realistic downside of using non-Apple software is your loss of support from Apple. For some go-it-alone self-reliant types, that's no big deal, but for most people, that would be a devastating loss.
Isn't there a notice of the EULA on the box with a url to read the EULA before purchase?
Exactly. I've never seen such a weak argument as that presented by the stupid germans...EULAs are, BY DEFINITION, supposed to be read and agreed upon BEFORE you open packages and/or start using a company's products...this is the essence of a shrink-wrap license anywhere in the world.
This one won't even get past the preliminary hearings.