1 I don't think it's gone to court in Germany. This company is getting out in front of itself legally.
Could be, I don't know.
Quote:
Originally Posted by dasein
2 Remember that Apple's different in most respects than most hardware and software manufacturers. They make a combined package. The software sells the hardware. Rip that away for cheap hardware solutions and how would Apple support its premium software OS? It's a business model that's unique. Ironically, these companies trying to do this might, if successful, in the end destroy their own businesses as a result.
Could be, but I doubt it would cripple Apple at all, Apple is specifically NOT targeting those consumers that are interested in these clones, at all. YMMV
Quote:
Originally Posted by dasein
3 There are international intellectual agreements/treaties countries (including Germany) are party to.
Don't know, don't care.
Quote:
Originally Posted by dasein
4 If you don't like the law, you're not forced to participate...owning a Macintosh isn't one of life's necessities...it's a nice to have, not a need to have. Pick a number and get in the complaint line.
I don't know the law, nor pretend to. I'll wait for the rulings.
Quote:
Originally Posted by dasein
5 Granted, they should have their EULA on the box somewhere (does anyone REALLY read that stuff anyway?)
No, I don't read them.
Quote:
Originally Posted by mdriftmeyer
For $129 I better have a DVD and the right to make a backup copy.
I agree.
Quote:
Originally Posted by solipsism
I don't understand why people are so focused on the EULA and not the copy, reproduction and selling of IP without the consent of the IP holder. Does your country not have copyright laws? Are you allowed to make copies of an OS and then sell it to whomever you wish?
Isn't there another company out there selling a USB dongle that allows the consumer to install their legally purchased copy of OS X? I beleive this company doesn't even sell the computer, just the USB dongle. (EFF or EFI or something?)
Quote:
Originally Posted by michaelab
I don't agree with you but whatever, it's still irrelevant. If that was all that mattered the cloners could just include the shrink-wrapped OS X box in the package without pre-installing (as copeland pointed out above). As long as Apple continue to sell OS X in retail stores the absolute worst case for the cloners is that they can't pre-install or bundle OS X with their PCs and their customers will have to go out and buy it themselves and then install it themselves. The end result is still exactly the same. Apple will never be able to successfully sue someone for making a computer that has the ability to install a store bought copy of OS X.
Michael
I thind we're about to find out when Apple begins sueing the company that is doing just that, I wish I could remember their name(EFI, EFF or something) Heck, Apple may have already sued them by now.
Say what? Reverse engineering isn't copyright infringement and considered fair use by US courts.
At least in the US, there is a specific process that has to be followed, in short, the people that make the final product can't have seen the code for the original product. I doubt that the reverse engineering of OS X was that rigorous. I don't know how German law does that, it may be different.
Isn't there another company out there selling a USB dongle that allows the consumer to install their legally purchased copy of OS X? I beleive this company doesn't even sell the computer, just the USB dongle. (EFF or EFI or something?)
EFiX makes such a device. It has to be paired with certain MoBos. It won't work with just any. There is nothing illegal about EFiX method, assuming they aren't using someone else's HW or SW on their chips without permission.
EFiX USA, a buyer of EFiX dongkes but not owned by EFiX, announced they would be making Mac clones pre-installed with Mac OS X. EFiX said they do not allow that and I believe dropped them as a customer.
At least in the US, there is a specific process that has to be followed, in short, the people that make the final product can't have seen the code for the original product. I doubt that the reverse engineering of OS X was that rigorous. I don't know how German law does that, it may be different.
The BNetD folks certainly did not have access to Blizzard code. They were replicating server response based on what they saw on the wire when a client connected to the real Blizzard servers.
You clean room in order to avoid the whole copyright infringement issue. Even then copyright protection is weaker in some cases for computer software for reverse engineering as seen in Sony v. Connectix where Connectix disasembled Sony's BIOS object code to build their emulator. Connectix won on appeal on the 9th circuit.
Quote:
The purpose of the Virtual Game Station is to emulate on a regular computer the functioning of the Sony PlayStation console, so that computer owners who buy the Virtual Game Station software can play Sony PlayStation games on their computers. The Virtual Game Station does not contain any of Sony's copyrighted material. In the process of producing the Virtual Game Station, however, Connectix repeatedly copied Sony's copyrighted BIOS during a process of "reverse engineering" that Connectix conducted in order to find out how the Sony PlayStation worked.
Sony claimed infringement and sought a preliminary injunction. The district court concluded that Sony was likely to succeed on its infringement claim because Connectix's "intermediate copying " was not a protected "fair use" under 17 U.S.C. S 107. The district court enjoined Connectix from selling the Virtual Game Station or from copying or using the Sony BIOS code in the development of other Virtual Game Station products. Connectix now appeals.
We reverse and remand with instructions to dissolve the injunction. The intermediate copies made and used by Connectix during the course of its reverse engineering of the Sony BIOS were protected fair use, necessary to permit Connectix to make its non-infringing Virtual Game Station function with PlayStation games.
Clean room keeps Sony from bringing the case in the first place (as a pointless exercise...well, if clean room can be shown to have been done right anyway) but as long as the final product can be shown to be non-infringing then you can still have seen the code, reverse engineer and build your product...UNLESS you've waived that right as part of contract law with a EULA.
Say what? Reverse engineering isn't copyright infringement and considered fair use by US courts. The EULA was the only thing to prevent reverse engineering because you can voluntarily relinquish your rights under contract law that is granted by copyright.
There is even a DMCA provision that allows reverse engineering for interoperability.
But what the guys in the Blizzard example were doing (if I understand correctly) was not just for interoperability, but rather to create a clone of the existing product. That most certainly isn't legal. If the guys had created a simple add-on to the software that required reverse engineering then they would have been in the clear. Instead they reverse engineered to create a version of the original. That would be like me saying I can reprint and distribute Stephen King's latest book because I've reprinted it using a different font so now it's a different book.
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Originally Posted by vinea
You cannot legally hack software or legally install software on whatever device you want if you do not have permission from the copyright holder to do so except for what is normally granted by copyright law....
That is flat-out wrong. You can do anything you want to software you have purchased. There is no law against it. I've never heard of anyone arrested for hacking software in the privacy of their own home. Have you? Where people get into trouble is when they decide to distribute that altered version of the software or, even worse, sell it.
But what the guys in the Blizzard example were doing (if I understand correctly) was not just for interoperability, but rather to create a clone of the existing product. That most certainly isn't legal. If the guys had created a simple add-on to the software that required reverse engineering then they would have been in the clear. Instead they reverse engineered to create a version of the original. That would be like me saying I can reprint and distribute Stephen King's latest book because I've reprinted it using a different font so now it's a different book.
How does the Phoenix BIOS case fit into your argument? I realize that IBM wasn't selling the BIOS by itself, but that was the one final component that fell into place that allowed clone makers to sell compatible computers. It certainly wasn't an add-on for IBM computers but for their competitors to create a clone of the existing product.
I really don't think your book analogy fits. A more apt one that fits the Phoenix situation would be have someone read a book, write a plot outline of the book, hand that outline to a writer that never read the original work, and write a new story based on the same plot outline.
But what the guys in the Blizzard example were doing (if I understand correctly) was not just for interoperability, but rather to create a clone of the existing product. That most certainly isn't legal. If the guys had created a simple add-on to the software that required reverse engineering then they would have been in the clear. Instead they reverse engineered to create a version of the original. That would be like me saying I can reprint and distribute Stephen King's latest book because I've reprinted it using a different font so now it's a different book.
How odd because that's exactly what the Virtual Game Station was isn't it? A virtual playstation. Perfectly legal to reverse engineer and build a clone of the product that ran on the PC rather than on Sony's hardware.
Quote:
That is flat-out wrong. You can do anything you want to software you have purchased. There is no law against it. I've never heard of anyone arrested for hacking software in the privacy of their own home. Have you? Where people get into trouble is when they decide to distribute that altered version of the software or, even worse, sell it.
Well, if you do it in the privacy of your own home, it's unlikely that anyone would ever know eh?
You aren't legally allowed to install OSX except on Apple hardware because the EULA forbids it and you have no license to do so if you decline. The argument is that you did not buy OSX but a license to use it on the terms of the licensee.
But even if you do, it's not like Apple is going to send someone to your house to arrest you.
This license argument doesn't apply when it comes to First Sale doctrine but upheld in the other cases. If you don't want take my word for it, at least read about the Blizzard case. There are many articles about it and the implications of that case.
At least be somewhat less certain in your ignorance.
You aren't legally allowed to install OSX except on Apple hardware because the EULA forbids it and you have no license to do so if you decline.
....
I know of no law enacted by any government referencing Apple's EULA. There are laws concerning contracts and such that apply, but until Apple sues some one in court over the EULA, which isn't a law, then the legality of Apple's EULA is in question.
Maybe you should have said Apple's EULA does not allow someone to install Mac OS X on anything but an Apple computer and let the courts decide if Apple's EULA is a legally binding agreement or contract. Frankly, I don't know and will wait for a court to decide.
I know of no law enacted by any government referencing Apple's EULA. There are laws concerning contracts and such that apply, but until Apple sues some one in court over the EULA, which isn't a law, then the legality of Apple's EULA is in question.
Well yes. I was being somewhat facetious about Apple sending someone to arrest you. A letter from their legal department is as far as it goes since this would be a contract violation.
Even if you lose, you're not going to jail unless you dis the courts.
Quote:
First, some background. As a general rule, the California courts uphold contracts of adhesion ? take-it-or-leave-it form contracts ? all the time. Consumers, employees and others are considered bound by contractual language despite the fact that the courts, the lawyers and everybody else knows nobody reads this stuff. Graham v. Scissor Tail, Inc. (1981) 28 Cal.3d 807, 817-18.
Nonetheless, our courts allow attacks on contracts for ?unconscionability.? To overturn a contract on this ground, the contract must be both ?procedurally? unconscionable and ?substantively? unconscionable. Discover Bank v. Superior Court (2005) 36 Cal.3d. 148, , 160. A procedurally unconscionable contract is one involving ?oppression? or ?surprise? because of unequal bargaining power, while substantively unconscionable terms are those which are unfairly one-sided.
Maybe you should have said Apple's EULA does not allow someone to install Mac OS X on anything but an Apple computer and let the courts decide if Apple's EULA is a legally binding agreement or contract. Frankly, I don't know and will wait for a court to decide.
Well, lets see...I've presented case law and commentary from law blogs that EULAs have been upheld. There is sufficient body of work out there that anyone that can google can easily determine that I'm not just pulling this out of my ass.
Pystar's affirmative defense #13 was that Apple's EULA was "unconsionable" and I don't think it will get very far as an affirmative defense...
Quote:
unconscionable
adj. referring to a contract or bargain which is so unfair to a party that no reasonable or informed person would agree to it. In a suit for breach of contract, a court will not enforce an unconscionable contract (award damages or order specific performance) against the person unfairly treated, on the theory that he/she was misled, lacked information or signed under duress or misunderstanding. It is similar to an "adhesion contract," in which one party has taken advantage of a person dealing from weakness.
"Hey, here's the software I developed for you to use only on my hardware" is going to be a stretch to shown to be subtantively unconsionable.
So unless than the portions judged procedurally or substantively unconscionable Apple's EULA is enforceable so any statement that "EULA is irrelevant in any other situation" than "breaking a law" is incorrect. Especially since a EULA would be redundant if they only applied when someone was already breaking the law...
The major point of EULAs is to restrict the normal rights accorded under the law through contractural agreement and contract law.
So in summation. EULA's have been tested in court and found enforcable in most major juristictions and are valid contracts. Ignore them only on the advice of your own lawyer.
It seems that it's common sense with lawyers in germany that EULAs are not enforcable after Microsoft lost their OEM case in the year 2000.
BGH, Urteil v. 06.07.2000, Az. I ZR 244/97, CuR 2000, 651 (OEM-Urteil) (day of judgment 6th of july, 2000 and file number at german federal supreme court).
The specific case was about Microsoft preventing the sale of OEM versions of Windows without hardware bundling, i.e. you could only buy an OEM version of windows together with a new computer as stated in their EULA back then. Since the federal supreme court judged this special case noone ever tried to sue someone in germany because of breaking the EULA.
So this was the first and last judgment about § 69 c Nr. 3 S. 2 UrhG (UrhG = copyright laws).
§69 UrhG is specifically important for the case of "reselling" any copyrighted material. The judgement says that noone can prevent anyone from reselling their products if they legally bought them either on free market or even from the manufacturer. As soon as the manufacturer sold the product (and you actually buy the box with the data medium et. al. no matter if you "license" the software) he cannot prevent you from reselling the product. Even if you're a reseller, you can make a backup copy of the software and resell it, as long as you hand out the original data medium as well. Noone can prevent you from doing this, as making a copy of the software for installation purposes (i.e. installing the software on a data medium) is perfectly legal as well in germany. Altering the product without permission is still forbidden, but that's not the point with HyperMegaNet, as they actually seem to use a bootloader which can boot and install Leopard on any PC without altering any software of Leopard during the installation process, so there is no copyright violation as they actually don't modify the software itself.
EULA restrictions also do not apply as unilaterally restricting parts of the EULA aren't legally binding to anyone who purchased the product if they weren't presented to the purchaser during the process of purchasing the product (EULA's on websites do not apply, neither do hints on the packaging, as you can still only see the actual EULA after you purchased the product and not before you purchased the product.)
Does this held in court? I don't know, as noone can say if Apple is willing to try it out in court and probably loose the case like Microsoft did in the year 2000.
I guess hell would brake loose in the european market if Apple would actually try to enforce their EULA in court and loose the case.
Well yes. I was being somewhat facetious about Apple sending someone to arrest you. A letter from their legal department is as far as it goes since this would be a contract violation.
Even if you lose, you're not going to jail unless you dis the courts.
Well, lets see...I've presented case law and commentary from law blogs that EULAs have been upheld. There is sufficient body of work out there that anyone that can google can easily determine that I'm not just pulling this out of my ass.
Pystar's affirmative defense #13 was that Apple's EULA was "unconsionable" and I don't think it will get very far as an affirmative defense...
"Hey, here's the software I developed for you to use only on my hardware" is going to be a stretch to shown to be subtantively unconsionable.
So unless than the portions judged procedurally or substantively unconscionable Apple's EULA is enforceable so any statement that "EULA is irrelevant in any other situation" than "breaking a law" is incorrect. Especially since a EULA would be redundant if they only applied when someone was already breaking the law...
The major point of EULAs is to restrict the normal rights accorded under the law through contractural agreement and contract law.
So in summation. EULA's have been tested in court and found enforcable in most major juristictions and are valid contracts. Ignore them only on the advice of your own lawyer.
You make a lot of good points
What do you think of the information on this link where EULA agreements apparently lost in court?
"Bobbs-Merrill Co v. Straus (1908) US Supreme Court- No license required to use copyrighted material. License "claimed" by copyright holder cannot extend holder's rights beyond statute defined by Congress."
"Advent Sys. Ltd. v. Unisys Corp (1991) held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code."
"Step-Saver Data Systems, Inc. v. Wise Technology (1991) the court concluded that subsequent changes to the Copyright Act had rendered the need to characterize the transaction as a license to use software "largely anachronistic."."
"Applied Info. Mgmt., Inc, v. Icart (1997) held that the sale of software is the sale of a good."
"Softman v. Adobe (2001) The first-sale doctrine applies to software and can not be waived or taken away through an EULA."
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Originally Posted by vinea
No, just the removal of retail copies of OSX from EU shelves.
Good plan, piss of the entire European community.
Just to clarify, I don't know the law and don't pretend to, just asking questions. Seems to me that until Apple's EULA is tested in court no one knows what the outcome will be.
You aren't legally allowed to install OSX except on Apple hardware because the EULA forbids it and you have no license to do so if you decline. The argument is that you did not buy OSX but a license to use it on the terms of the licensee.
The courts have yet to prove the EULA to be a valid contractual agreement between the buyer and seller so that's a tired argument that goes nowhere. Apple cannot dictate what you install their software on. If you have some legal precedent or a federal law to cite that supports Apple's right to assert this control over their users, I'd be interested to see it.
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Originally Posted by vinea
At least be somewhat less certain in your ignorance.
How about if you be less ignorant in your certainty?
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?!
There is not anything unusual or unique about the install discs for a Mac being specific to that model. That is why you can not take the install/restore discs for one type of Mac and use them on another type of Mac in most cases.
The Retail OS is normally capable of being installed on any Mac.
The issue, according to the German manufacturer, is that they believe the End User License restrictions are invalid under German law.
Any German lawyers who would care to comment on this?
Comments
1 I don't think it's gone to court in Germany. This company is getting out in front of itself legally.
Could be, I don't know.
2 Remember that Apple's different in most respects than most hardware and software manufacturers. They make a combined package. The software sells the hardware. Rip that away for cheap hardware solutions and how would Apple support its premium software OS? It's a business model that's unique. Ironically, these companies trying to do this might, if successful, in the end destroy their own businesses as a result.
Could be, but I doubt it would cripple Apple at all, Apple is specifically NOT targeting those consumers that are interested in these clones, at all. YMMV
3 There are international intellectual agreements/treaties countries (including Germany) are party to.
Don't know, don't care.
4 If you don't like the law, you're not forced to participate...owning a Macintosh isn't one of life's necessities...it's a nice to have, not a need to have. Pick a number and get in the complaint line.
I don't know the law, nor pretend to. I'll wait for the rulings.
5 Granted, they should have their EULA on the box somewhere (does anyone REALLY read that stuff anyway?)
No, I don't read them.
For $129 I better have a DVD and the right to make a backup copy.
I agree.
I don't understand why people are so focused on the EULA and not the copy, reproduction and selling of IP without the consent of the IP holder. Does your country not have copyright laws? Are you allowed to make copies of an OS and then sell it to whomever you wish?
Isn't there another company out there selling a USB dongle that allows the consumer to install their legally purchased copy of OS X? I beleive this company doesn't even sell the computer, just the USB dongle. (EFF or EFI or something?)
I don't agree with you but whatever, it's still irrelevant. If that was all that mattered the cloners could just include the shrink-wrapped OS X box in the package without pre-installing (as copeland pointed out above). As long as Apple continue to sell OS X in retail stores the absolute worst case for the cloners is that they can't pre-install or bundle OS X with their PCs and their customers will have to go out and buy it themselves and then install it themselves. The end result is still exactly the same. Apple will never be able to successfully sue someone for making a computer that has the ability to install a store bought copy of OS X.
Michael
I thind we're about to find out when Apple begins sueing the company that is doing just that, I wish I could remember their name(EFI, EFF or something) Heck, Apple may have already sued them by now.
Say what? Reverse engineering isn't copyright infringement and considered fair use by US courts.
At least in the US, there is a specific process that has to be followed, in short, the people that make the final product can't have seen the code for the original product. I doubt that the reverse engineering of OS X was that rigorous. I don't know how German law does that, it may be different.
Isn't there another company out there selling a USB dongle that allows the consumer to install their legally purchased copy of OS X? I beleive this company doesn't even sell the computer, just the USB dongle. (EFF or EFI or something?)
EFiX makes such a device. It has to be paired with certain MoBos. It won't work with just any. There is nothing illegal about EFiX method, assuming they aren't using someone else's HW or SW on their chips without permission.
EFiX USA, a buyer of EFiX dongkes but not owned by EFiX, announced they would be making Mac clones pre-installed with Mac OS X. EFiX said they do not allow that and I believe dropped them as a customer.
At least in the US, there is a specific process that has to be followed, in short, the people that make the final product can't have seen the code for the original product. I doubt that the reverse engineering of OS X was that rigorous. I don't know how German law does that, it may be different.
The BNetD folks certainly did not have access to Blizzard code. They were replicating server response based on what they saw on the wire when a client connected to the real Blizzard servers.
You clean room in order to avoid the whole copyright infringement issue. Even then copyright protection is weaker in some cases for computer software for reverse engineering as seen in Sony v. Connectix where Connectix disasembled Sony's BIOS object code to build their emulator. Connectix won on appeal on the 9th circuit.
The purpose of the Virtual Game Station is to emulate on a regular computer the functioning of the Sony PlayStation console, so that computer owners who buy the Virtual Game Station software can play Sony PlayStation games on their computers. The Virtual Game Station does not contain any of Sony's copyrighted material. In the process of producing the Virtual Game Station, however, Connectix repeatedly copied Sony's copyrighted BIOS during a process of "reverse engineering" that Connectix conducted in order to find out how the Sony PlayStation worked.
Sony claimed infringement and sought a preliminary injunction. The district court concluded that Sony was likely to succeed on its infringement claim because Connectix's "intermediate copying " was not a protected "fair use" under 17 U.S.C. S 107. The district court enjoined Connectix from selling the Virtual Game Station or from copying or using the Sony BIOS code in the development of other Virtual Game Station products. Connectix now appeals.
We reverse and remand with instructions to dissolve the injunction. The intermediate copies made and used by Connectix during the course of its reverse engineering of the Sony BIOS were protected fair use, necessary to permit Connectix to make its non-infringing Virtual Game Station function with PlayStation games.
http://caselaw.lp.findlaw.com/cgi-bi...ket&no=9915852
Clean room keeps Sony from bringing the case in the first place (as a pointless exercise...well, if clean room can be shown to have been done right anyway) but as long as the final product can be shown to be non-infringing then you can still have seen the code, reverse engineer and build your product...UNLESS you've waived that right as part of contract law with a EULA.
ObDis: IANAL.
Say what? Reverse engineering isn't copyright infringement and considered fair use by US courts. The EULA was the only thing to prevent reverse engineering because you can voluntarily relinquish your rights under contract law that is granted by copyright.
There is even a DMCA provision that allows reverse engineering for interoperability.
But what the guys in the Blizzard example were doing (if I understand correctly) was not just for interoperability, but rather to create a clone of the existing product. That most certainly isn't legal. If the guys had created a simple add-on to the software that required reverse engineering then they would have been in the clear. Instead they reverse engineered to create a version of the original. That would be like me saying I can reprint and distribute Stephen King's latest book because I've reprinted it using a different font so now it's a different book.
You cannot legally hack software or legally install software on whatever device you want if you do not have permission from the copyright holder to do so except for what is normally granted by copyright law....
That is flat-out wrong. You can do anything you want to software you have purchased. There is no law against it. I've never heard of anyone arrested for hacking software in the privacy of their own home. Have you? Where people get into trouble is when they decide to distribute that altered version of the software or, even worse, sell it.
But what the guys in the Blizzard example were doing (if I understand correctly) was not just for interoperability, but rather to create a clone of the existing product. That most certainly isn't legal. If the guys had created a simple add-on to the software that required reverse engineering then they would have been in the clear. Instead they reverse engineered to create a version of the original. That would be like me saying I can reprint and distribute Stephen King's latest book because I've reprinted it using a different font so now it's a different book.
How does the Phoenix BIOS case fit into your argument? I realize that IBM wasn't selling the BIOS by itself, but that was the one final component that fell into place that allowed clone makers to sell compatible computers. It certainly wasn't an add-on for IBM computers but for their competitors to create a clone of the existing product.
I really don't think your book analogy fits. A more apt one that fits the Phoenix situation would be have someone read a book, write a plot outline of the book, hand that outline to a writer that never read the original work, and write a new story based on the same plot outline.
But what the guys in the Blizzard example were doing (if I understand correctly) was not just for interoperability, but rather to create a clone of the existing product. That most certainly isn't legal. If the guys had created a simple add-on to the software that required reverse engineering then they would have been in the clear. Instead they reverse engineered to create a version of the original. That would be like me saying I can reprint and distribute Stephen King's latest book because I've reprinted it using a different font so now it's a different book.
How odd because that's exactly what the Virtual Game Station was isn't it? A virtual playstation. Perfectly legal to reverse engineer and build a clone of the product that ran on the PC rather than on Sony's hardware.
That is flat-out wrong. You can do anything you want to software you have purchased. There is no law against it. I've never heard of anyone arrested for hacking software in the privacy of their own home. Have you? Where people get into trouble is when they decide to distribute that altered version of the software or, even worse, sell it.
Well, if you do it in the privacy of your own home, it's unlikely that anyone would ever know eh?
You aren't legally allowed to install OSX except on Apple hardware because the EULA forbids it and you have no license to do so if you decline. The argument is that you did not buy OSX but a license to use it on the terms of the licensee.
But even if you do, it's not like Apple is going to send someone to your house to arrest you.
This license argument doesn't apply when it comes to First Sale doctrine but upheld in the other cases. If you don't want take my word for it, at least read about the Blizzard case. There are many articles about it and the implications of that case.
At least be somewhat less certain in your ignorance.
.....
You aren't legally allowed to install OSX except on Apple hardware because the EULA forbids it and you have no license to do so if you decline.
....
I know of no law enacted by any government referencing Apple's EULA. There are laws concerning contracts and such that apply, but until Apple sues some one in court over the EULA, which isn't a law, then the legality of Apple's EULA is in question.
Maybe you should have said Apple's EULA does not allow someone to install Mac OS X on anything but an Apple computer and let the courts decide if Apple's EULA is a legally binding agreement or contract. Frankly, I don't know and will wait for a court to decide.
I know of no law enacted by any government referencing Apple's EULA. There are laws concerning contracts and such that apply, but until Apple sues some one in court over the EULA, which isn't a law, then the legality of Apple's EULA is in question.
Well yes. I was being somewhat facetious about Apple sending someone to arrest you. A letter from their legal department is as far as it goes since this would be a contract violation.
Even if you lose, you're not going to jail unless you dis the courts.
First, some background. As a general rule, the California courts uphold contracts of adhesion ? take-it-or-leave-it form contracts ? all the time. Consumers, employees and others are considered bound by contractual language despite the fact that the courts, the lawyers and everybody else knows nobody reads this stuff. Graham v. Scissor Tail, Inc. (1981) 28 Cal.3d 807, 817-18.
Nonetheless, our courts allow attacks on contracts for ?unconscionability.? To overturn a contract on this ground, the contract must be both ?procedurally? unconscionable and ?substantively? unconscionable. Discover Bank v. Superior Court (2005) 36 Cal.3d. 148, , 160. A procedurally unconscionable contract is one involving ?oppression? or ?surprise? because of unequal bargaining power, while substantively unconscionable terms are those which are unfairly one-sided.
Cal Biz Lit
Maybe you should have said Apple's EULA does not allow someone to install Mac OS X on anything but an Apple computer and let the courts decide if Apple's EULA is a legally binding agreement or contract. Frankly, I don't know and will wait for a court to decide.
Well, lets see...I've presented case law and commentary from law blogs that EULAs have been upheld. There is sufficient body of work out there that anyone that can google can easily determine that I'm not just pulling this out of my ass.
Pystar's affirmative defense #13 was that Apple's EULA was "unconsionable" and I don't think it will get very far as an affirmative defense...
unconscionable
adj. referring to a contract or bargain which is so unfair to a party that no reasonable or informed person would agree to it. In a suit for breach of contract, a court will not enforce an unconscionable contract (award damages or order specific performance) against the person unfairly treated, on the theory that he/she was misled, lacked information or signed under duress or misunderstanding. It is similar to an "adhesion contract," in which one party has taken advantage of a person dealing from weakness.
Law.com
"Hey, here's the software I developed for you to use only on my hardware" is going to be a stretch to shown to be subtantively unconsionable.
So unless than the portions judged procedurally or substantively unconscionable Apple's EULA is enforceable so any statement that "EULA is irrelevant in any other situation" than "breaking a law" is incorrect. Especially since a EULA would be redundant if they only applied when someone was already breaking the law...
The major point of EULAs is to restrict the normal rights accorded under the law through contractural agreement and contract law.
So in summation. EULA's have been tested in court and found enforcable in most major juristictions and are valid contracts. Ignore them only on the advice of your own lawyer.
BGH, Urteil v. 06.07.2000, Az. I ZR 244/97, CuR 2000, 651 (OEM-Urteil) (day of judgment 6th of july, 2000 and file number at german federal supreme court).
The specific case was about Microsoft preventing the sale of OEM versions of Windows without hardware bundling, i.e. you could only buy an OEM version of windows together with a new computer as stated in their EULA back then. Since the federal supreme court judged this special case noone ever tried to sue someone in germany because of breaking the EULA.
So this was the first and last judgment about § 69 c Nr. 3 S. 2 UrhG (UrhG = copyright laws).
§69 UrhG is specifically important for the case of "reselling" any copyrighted material. The judgement says that noone can prevent anyone from reselling their products if they legally bought them either on free market or even from the manufacturer. As soon as the manufacturer sold the product (and you actually buy the box with the data medium et. al. no matter if you "license" the software) he cannot prevent you from reselling the product. Even if you're a reseller, you can make a backup copy of the software and resell it, as long as you hand out the original data medium as well. Noone can prevent you from doing this, as making a copy of the software for installation purposes (i.e. installing the software on a data medium) is perfectly legal as well in germany. Altering the product without permission is still forbidden, but that's not the point with HyperMegaNet, as they actually seem to use a bootloader which can boot and install Leopard on any PC without altering any software of Leopard during the installation process, so there is no copyright violation as they actually don't modify the software itself.
EULA restrictions also do not apply as unilaterally restricting parts of the EULA aren't legally binding to anyone who purchased the product if they weren't presented to the purchaser during the process of purchasing the product (EULA's on websites do not apply, neither do hints on the packaging, as you can still only see the actual EULA after you purchased the product and not before you purchased the product.)
Does this held in court? I don't know, as noone can say if Apple is willing to try it out in court and probably loose the case like Microsoft did in the year 2000.
I guess hell would brake loose in the european market if Apple would actually try to enforce their EULA in court and loose the case.
I guess hell would brake loose in the european market if Apple would actually try to enforce their EULA in court and loose the case.
No, just the removal of retail copies of OSX from EU shelves.
Well yes. I was being somewhat facetious about Apple sending someone to arrest you. A letter from their legal department is as far as it goes since this would be a contract violation.
Even if you lose, you're not going to jail unless you dis the courts.
Cal Biz Lit
Well, lets see...I've presented case law and commentary from law blogs that EULAs have been upheld. There is sufficient body of work out there that anyone that can google can easily determine that I'm not just pulling this out of my ass.
Pystar's affirmative defense #13 was that Apple's EULA was "unconsionable" and I don't think it will get very far as an affirmative defense...
Law.com
"Hey, here's the software I developed for you to use only on my hardware" is going to be a stretch to shown to be subtantively unconsionable.
So unless than the portions judged procedurally or substantively unconscionable Apple's EULA is enforceable so any statement that "EULA is irrelevant in any other situation" than "breaking a law" is incorrect. Especially since a EULA would be redundant if they only applied when someone was already breaking the law...
The major point of EULAs is to restrict the normal rights accorded under the law through contractural agreement and contract law.
So in summation. EULA's have been tested in court and found enforcable in most major juristictions and are valid contracts. Ignore them only on the advice of your own lawyer.
You make a lot of good points
What do you think of the information on this link where EULA agreements apparently lost in court?
http://www.tabberone.com/Trademarks/...ULA/EULA.shtml
Some quotes they cited
"Bobbs-Merrill Co v. Straus (1908) US Supreme Court- No license required to use copyrighted material. License "claimed" by copyright holder cannot extend holder's rights beyond statute defined by Congress."
"Advent Sys. Ltd. v. Unisys Corp (1991) held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code."
"Step-Saver Data Systems, Inc. v. Wise Technology (1991) the court concluded that subsequent changes to the Copyright Act had rendered the need to characterize the transaction as a license to use software "largely anachronistic."."
"Applied Info. Mgmt., Inc, v. Icart (1997) held that the sale of software is the sale of a good."
"Softman v. Adobe (2001) The first-sale doctrine applies to software and can not be waived or taken away through an EULA."
No, just the removal of retail copies of OSX from EU shelves.
Good plan, piss of the entire European community.
Just to clarify, I don't know the law and don't pretend to, just asking questions. Seems to me that until Apple's EULA is tested in court no one knows what the outcome will be.
You aren't legally allowed to install OSX except on Apple hardware because the EULA forbids it and you have no license to do so if you decline. The argument is that you did not buy OSX but a license to use it on the terms of the licensee.
The courts have yet to prove the EULA to be a valid contractual agreement between the buyer and seller so that's a tired argument that goes nowhere. Apple cannot dictate what you install their software on. If you have some legal precedent or a federal law to cite that supports Apple's right to assert this control over their users, I'd be interested to see it.
At least be somewhat less certain in your ignorance.
How about if you be less ignorant in your certainty?
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?!
There is not anything unusual or unique about the install discs for a Mac being specific to that model. That is why you can not take the install/restore discs for one type of Mac and use them on another type of Mac in most cases.
The Retail OS is normally capable of being installed on any Mac.
The issue, according to the German manufacturer, is that they believe the End User License restrictions are invalid under German law.
Any German lawyers who would care to comment on this?