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V Plamondon

The EULA and you.

32 posts in this topic

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Today I am going to talk about software EULA's and what legal impact they may have on you.

 

Please remember though, that this is not legal advice, specifics will vary by jurisdiction (country, state or province, etc.), and these are merely my opinions.

 

First off, piracy is illegal, end of story. Many may be of the opinion that piracy is morally right, acceptable, or justify it by any other means. Almost universally in almost every jurisdiction in the world piracy is upheld as violation of copyright or similar laws.

 

Purchasing any piece of merchandise gives you the right to do anything you want with it. You could make a hundred copy's if you wanted, but if you sold them, you would be in violation of copyright law. You are copying copyright material. If, however, you created an original derivative work, you could legally distribute that work if you had permission of the original copyright holder. The only defense for copyright violations is "fair use" or "fair dealings" (in common-law jurisdictions).

 

So, apart from the EULA, one has the legal right to do anything they want with merchandise they purchase, and anyone who copies and distributes copyrighted material is in violation of copyright law.

 

Now consider the EULA, it is a contract (see this post: http://forum.insanelymac.com/index.php?s=&...t&p=792556), and is legally binding if one agrees to it. If one understands this and understands how the EULA is legally binding, then one realizes the EULA must be rendered an invalid contract in order to not be bound by it.

 

The simplest method is to have a third party install the software and agree to the EULA, making it clear that he/she is not accepting the agreement on your behalf, but is accepting the agreement in full. If you explain exactly what they are agreeing to (terms and conditions) it should not be hard to find someone to do this for you. Remember, anyone who has agreed to the EULA (someone who already installed the same software), is already bound by the terms and conditions of the EULA and would not be agreeing to anything they did not already agree to.

 

If your third party tells you they would deny having done so in a court of law, that is fine. If one were brought to court for violation of the EULA, declaring that one had a third party accept the EULA is sufficient to invalidate the EULA. Legally, a declaration stands as is, unless it is successfully challenged by the opposing council in court.

 

Essentially, a EULA is legally binding if you agree to it, and if you can get the software on your computer without agreeing to the EULA, you are not bound by the EULA. For that same reason, if someone created a third party installer that installs the software independently of the products installer, that too would bypass the EULA. Remember, If you own the merchandise, you can do anything you want with it, unless you bind yourself to a EULA.

 

Another thing software manufacturers do is place a warning on the packaging that the use of their software is subject to a EULA to be agreed upon before installation. Open the package and return to the store with your receipt and ask for your money back, and if they refuse, get their refusal in writing. If they will not put the refusal in writing, bring an officer of the law with you and try again, asking for your money back or put their refusal in writing. If you still haven't got your money back, contact the software company and ask for your money back. Whatever they ask you to send, send a certified copy (keep the originals) and send everything by registered mail. If they are refusing to refund your money, send them a registered letter asking for your money back (also ask for the expenses you have incurred to this point in trying to return the merchandise for your money back) as you don't agree to the EULA and you reserve the right to ignore the terms and conditions of the EULA on the basis of "duress of goods" if they don't refund your purchase price and your expenses in pursuit of your refund. If the software company has not given you your money back by this point, it can be argued that the EULA is invalid and is not legally binding.

 

This works because at the time of purchase the packaging clearly notes that there are additional terms and conditions but does not indicate what they are (non-disclosure). Once you try to install the software, you find out what the terms and conditions of the EULA are and do not agree with them. You head back to the store and ask for your money back on the basis of non-disclosure of additional terms and conditions, where they either; refund your money (unlikely), or they advise you to take up your issue with the software manufacturer (more likely). You try to resolve the issue with the merchant before contacting the manufacturer because the original purchase contract is with the merchant. Once you take your complaint to the manufacturer asking for a refund on the basis of non-disclosure of additional terms and conditions, they must either; refund your money, or expect that the EULA will be unable to stand as a valid contract in a court of law.

 

All terms and conditions must be disclosed in full before a contract is entered into or the contract is not valid. By indicating that there are additional terms and conditions to the use of the product on the products packaging, these terms and conditions are added as terms and conditions of the purchase contract. If the packaging does not indicate what these terms and conditions are or indicate where they might be freely accessed, this is considered non-disclosure.

 

This route is complicated and usually does not work. 999 times out of 1000 you will eventually get your money back.

 

The simple way to do this is to have a friend purchase the product, and he is now bound by the additional terms and conditions if he uses the product, but otherwise is unrestricted as to what he may do with the merchandise otherwise. If he repackages the merchandise and removes the EULA from the installer and remasters the installation media he has not done anything illegal and he is still not bound by the EULA unless he uses the product in question. He can now resell the product with the EULA removed legally, as he has full legal right to do so. It now includes derivative work included with the original work (installation media), he has full legal right to resell or tranfer ownership of the original product.

 

A derivative work cannot be sold without permission of the original copyright holder. If one owns the original, one has full legal rights to do with it as he pleases, such as including derivative works with the transfer of ownership and setting any additional terms and conditions he wishes.

 

Once you understand this, you will see OS X released for the PC as an eventuallity, not a possibility. If Psystar has knowledge and understanding of the legally binding nature of a EULA, but understands how to actually avoid being bound by the EULA, Apple cannot do anything about what Psystar is doing (assuming Psystar is purchasing legal copies of OS X).

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So to put it simply as long as we buy Mac OS X before placing it on our PCs Apple can do nothing about it. So in Phsystar's case if they buy legal copies they cannot be stopped by Apple. Right?

iPoco

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It depends on exactly what they are doing to bypass the EULA. If the EULA is agreed to, it is legally binding, so it depends on what Psystar is doing to protect itself from the EULA.

 

Essentially, if someone wanted a legal copy of OS X for their hackintosh, this is how I would do it.

 

I would start by setting up a numbered company or corporation. That is because any person or corporation using the software is automatically bound by the EULA if they use the software in question. For this reason the person or corporation is unable to use the software without entering into the EULA legally. I doubt any person would give up their Macintosh or Hackintosh to do this, so corporation it is.

 

The corporation purchases copies of OS X, discards the packaging, creates new packaging, includes the manuals and original media, and includes a derivative work such as Kalyway 10.5.2 with EULA removed.

 

Voila! Instant legal Hackintosh with no EULA.

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Nice!! I wonder if the "rumour" of Snow Leopard being installable on a PC is true... I'd be unhappy then... No fun updates to install!!

iPoco

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Voila! Instant legal Hackintosh with no EULA.

 

Please remember though, that this is not legal advice, specifics will vary by jurisdiction (country, state or province, etc.), and these are merely my opinions.

 

What's the point? Until the full legal implications are played out in court, most companies aren't going to trust in "these" kinds of procedures to "make" OS X legal on PCs. My guess is more would just do it and think they won't get in trouble rather than thinking this legally covers them.

 

For most users, at least in this forum, they probably don't own a legal copy of OS X anyways, so I doubt they really care whether legal or not.

 

At least this was better than the "stick an apple label on a PC" argument that some proclaim as the true meaning of the EULA. :D

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What's the point? Until the full legal implications are played out in court, most companies aren't going to trust in "these" kinds of procedures to "make" OS X legal on PCs. My guess is more would just do it and think they won't get in trouble rather than thinking this legally covers them.

 

For most users, at least in this forum, they probably don't own a legal copy of OS X anyways, so I doubt they really care whether legal or not.

 

At least this was better than the "stick an apple label on a PC" argument that some proclaim as the true meaning of the EULA. ;)

 

My point is that if one agrees to the EULA, it is legally binding, but if one doesn't agree to the EULA it is not legally binding. I don't know how much more straightforward I can explain this. If someone not bound by the EULA sells you a legally acquired copy of OS X and removes the EULA, this would result in a legally installed copy of Hackintosh.

 

Trust me, if I had the financial resources to start, I would already be out there repackaging OS X for sale on regular PC's.

 

If what I am saying seems suspect, go do your own research, or consult a lawyer that specializes in EULA law.

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My point is that if one agrees to the EULA, it is legally binding, but if one doesn't agree to the EULA it is not legally binding. I don't know how much more straightforward I can explain this. If someone not bound by the EULA sells you a legally acquired copy of OS X and removes the EULA, this would result in a legally installed copy of Hackintosh.

I understood that already, i wasn't talking about that.

 

If what I am saying seems suspect, go do your own research, or consult a lawyer that specializes in EULA law.

Easy. My point was what does this accomplish for us as end users? I don't think anyone is worried about a knock at our door about running OSx86. Even if this is legal, you're not going to get support from Apple, so what do you gain other than possibly peace of mind?

 

Consulting a lawyer doesn't necessarily mean anything. Until these things are tested in court there are no absolutes.

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It accomplishes eventuality. If Apple does not fix it's EULA vulnerabilities, generic PC manufacturers will eventually exploit these vulnerabilities to deliver their own distributions of OS X. Chances are, the largest PC manufacturers are watching Psystar carefully to see what happens.

 

If Apple does not respond in any way, shape or form to what Psystar is doing, OS X will move to the big boys automatically. If Apple can't shut down Psystar, they certainly could not touch Dell or IBM. When this happens, Apple must either open up it's platform to common PC's, or allow whats happening to injure and desecrate their brand.

 

Remember that IBM has Windoze source code and expertise, if IBM applied that knowledge to their own derivative of OS X, Apple could end up competing against it's own OS on someone elses hardware without the cross licensing shackles Apple is bound by.

 

Enough of OS X has been open sourced that any large competitor could co-opt their OS, improve it, and trash them with it.

 

It is quite clear to me that Macintosh clones will soon become a valid reality.

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I keep thinking about the letter I got from Napster. Did anyone else get that one? It was such a let down, I had just got broadband internet.

 

Anyways... Thank you for that talk V.

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I forgot to mention, that if the EULA is bypassed, any warranties, expressed or implied are still completely applicable. Of course, any hardware issues could legally be ignored by Apple as the software is being used on hardware it was not meant for, but Apple would still be on the hook for support for any software issues that arise.

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FCP's EULA says:

THE APPLE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE APPLE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

:(

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It could lead to personal injury if it failed to save your document that you spent hours on and you hit your head on the desk.

I wonder if Canada's proposed copyright laws will affect this somehow...

iPoco

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I think that's a little bit wrong.

 

The EULA grants you permission to use whatevers wirtten in the EULA e.g Leopard. You are "Renting" the software essentially. You are not allowed to modify it, reproduce (except for backup), etc. You do not own it. You have permission to use it.

 

The Apple EULA clearly states that you may not install it on non Apple Hardware.

If you install it on a PC you are violating the EULA, because by installing it, you agree to the EULA.

 

If you do not agree to the EULA you have no rights to use the software (Thats called Software theft). It's Apple's and its copywritten.

 

Also, the EULA states that you may not reverse engineer thier Product, or Repackage it.

 

I don't think this one argument would ever hold up in court. And I doubt any of us here will have the money to take on Apples Lawyers.

 

OSX86 is quite clearly illegal (From the laws point of view).

Psystar might not be so illegal because of technicalities.

 

Whether Laws are right or not...

 

And if it is so legal, i'd like to see FACT/FAST see a Hackintosh in a school. They have enough trouble understanding GPL. Good Luck explaining this away.

 

And trust me, I try to find loopholes everywhere, lets just say I indulge in some clearly illegal activities (I'm not gonna say what, but its not murders or weapons :pirate2:)

I dont believe it should be illegal, but it is. And I accept it is. Even though I dont think it is. And if i'm caught theres not much I can do. I accept that too. Just the way it is.

 

Anyway, no one seems to be doing anything about it.

 

It'd be like Microsoft trying to stop Windows being Stolen. Or Torrents being shut down. It's not really that big of an issue anymore.

 

What I find strange is if these EULAs are so damn puny and pointless, why bother.

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Oh and as for EULA returns being impossible or whatever, Apple could argue that all their EULA's are available online or on request so I doubt the "I couldnt possibly read the EULA before opening the box" would suddenly make Hackintosh Legal.

I'm no lawyer, but im guessing not many here are. I'm not trying to put you down, im just trying to point out what may be wrong in your argument so you can build upon it. I'm guessing alot of people on here have it in thier interests to believe it's legal to use OSX86. Im just trying to be realistic. Not agreeable.

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I have been trying to explain this as simply as possible so people can understand what I am trying to say, so I will summarize in point form.

 

1. If you agree to the EULA it is legally binding (it is a valid contract).

 

2. If you don't agree to the EULA it does not apply to you (a contract does not exist without consent of both parties).

 

3. If a package indicates enclosure of an EULA one must agree to in order to use the product, use of the product will often be considered agreement to the EULA.

 

4. If you try to return a product because you don't agree with the EULA, you know what you are doing, and you are persistent, you will get your money back most of your time (I won't expand on the details I have already given, as it is a complicated process, unlikely to result in fruition, except for getting your money back)

 

4. If a package indicates enclosure of an EULA one must agree to in order to use the product, one is not bound by the EULA, unless one uses the product.

 

5. Indication of additional terms and conditions (such as a EULA) on merchandise at the point of sale is a legal offer separate from the EULA. It is legally binding at time of purchase, but the additional terms and conditions are not legally binding until accepted in any way shape or form. Only the terms and conditions on the package apply.

 

6. If a package indicates where the EULA can viewed or read by reasonable means (average Joe of average means can access it without going to an unreasonable amount of effort), the EULA is legally binding when the conditions of the package are met. If the package says on use, it is binding upon use of the product, if it says on purchase, it is binding on purchase.

 

7. No third party can enter a contract on someone else's behalf without their consent. A contract entered into by someone else for another individual without their consent is not a valid contract and is in fact fraud.

 

8. A third party that accepts a contract themselves on someone else's behalf is bound by the terms and conditions of the contract (This is like co-signing a vehicle, where a third party signs for, and is bound by the terms and conditions of the contract. If the applicant does not sign, he is not bound by the terms and conditions of the contract. Most financing companies will not accept a contract without the applicants signature unless the co-signer's credit is SUPER INCREDIBLY INSANELY AWESOME because recovery of the vehicle in the case of default is not possible).

 

Oh and as for EULA returns being impossible or whatever, Apple could argue that all their EULA's are available online or on request so I doubt the "I couldnt possibly read the EULA before opening the box" would suddenly make Hackintosh Legal.

 

When you are attempting to return software on basis of disagreement of the EULA, from a legal standpoint you are saying; "I have read the EULA and here is my counter offer; I will return your product for the purchase price, plus my expenses for the unnessesary hassle in order to do so, or I will ignore the EULA and do what I want with the merchandise." (one can even word it this way in correspondence)

 

If one sends notarized copies of the corespondence by registered mail and keeps notarized copies, the manufacturer can only respond with another counter offer or accept your offer (if they don't respond, it would hold up in court as agreement on their part). They may try to coerce one into accepting the EULA by withholding your money, but they have already taken the money and given out the merchandise before all terms and conditions have been agreed to, and one pointing out to them that such is duress is enough to smarten them up.

 

I have done this with other sofware successfully, but I am withholding from doing this with OS X because I am running a copy of Kalyway 10.5.2 on my computer, and purchasing the software would bind me to the EULA. I have dealt with the issue of piracy in another manner that I will not disclose.

 

The EULA grants you permission to use whatevers wirtten in the EULA e.g Leopard. You are "Renting" the software essentially. You are not allowed to modify it, reproduce (except for backup), etc. You do not own it. You have permission to use it.

 

The Apple EULA clearly states that you may not install it on non Apple Hardware.

If you install it on a PC you are violating the EULA, because by installing it, you agree to the EULA.

 

Also, the EULA states that you may not reverse engineer their Product, or Repackage it.

 

I am not arguing against these points, if you are bound by the EULA, these point stands.

 

If you do not agree to the EULA you have no rights to use the software (Thats called Software theft). It's Apple's and its copywritten.

 

OSX86 is quite clearly illegal (From the laws point of view).

Psystar might not be so illegal because of technicalities.

 

You don't seem to be understanding what I am saying. I am not saying that the EULA is not a legal contract, I am saying it is not a legal contract if one doesn't enter into the contract. Let me use some examples;

 

If you had a Macintosh and installed OS X on a PC, you are in violation of the EULA, but your copy of OS X is a legally aquired copy.

 

If you install a pirated copy of OS X, with the EULA removed, you are not in violation of the EULA (it doesn't apply), but you are guilty of software piracy.

 

If you aquire a legally obtained copy of OS X and install it on your PC without getting bound to the EULA, you are not in violation of the EULA (it doesn't apply), and you are not engaging in piracy.

 

I expect that Psystar is getting around all the legal issues by buying legal copies of OS X and preinstalling the OS. By buying legal copies, Apple cannot go after them for piracy, because Psystar is a corporation (a legal entity with no form) it is not capable of using OS X and is not bound by the EULA (I already mentioned this)and by preinstalling the OS it is protecting the customers from injury from Psystar, because if the customer installs the OS, they will be in violation of the EULA, and Psystar could be sued by it's customers.

 

And if it is so legal, i'd like to see FACT/FAST see a Hackintosh in a school. They have enough trouble understanding GPL. Good Luck explaining this away.

 

I am not trying to say Hackintoshes are legal. I am trying to say that if one aquires a legal copy of OS X and bypasses the EULA, the Hackintosh COULD be a legally set up machine.

 

They have enough trouble understanding GPL. Good Luck explaining this away.

 

Why would I argue this point? I am not going to go to a school and say; "Hey! You could have legal copies of OS X on your Intel machines, but we have a huge legal minefield to navigate through that could potentially bankrupt your school?"

 

I am trying to point out, that if someone did not want to engage in piracy and legally put a legit copy of OS X on their PC, there are ways of bypassing the EULA if one is uncomfortable with violating the EULA. I am trying to encourage people to go out and support Apple for making an excellent product, even if we aren't using it how Apple intended.

 

I am also trying to point out that, with knowledge and understanding, anyone can do what Psystar is doing, and if Apple doesn't stop Psystar, we can expect more and more companies to enter the market.

 

What I find strange is if these EULAs are so damn puny and pointless, why bother.

 

A EULA is effective for a companies purposes for the prevention of reverse engineering of it's products.

 

An excellent example of a well executed EULA is Blizzard's EULA. Through it they were able to take bnetd's author's to court and won. Blizzard contended that the authors agreed to the EULA and violated it in several ways. bnetd's authors agreed to what Blizzard contended but that they had not done anything wrong because the EULA was unjust or wrong or something along those lines (I can't remember what they said). So you understand, NO CONTRACT that was entered into with full knowledge and understanding of both parties can be challenged in any way shape or form unless the specific terms and conditions are themselves against the law (you legally can't charge more than 60% interest per annum in Canada for example), or are damaging to either party (hard to prove).

 

I don't think this one argument would ever hold up in court. And I doubt any of us here will have the money to take on Apples Lawyers.

 

Who do the experts in EULA law work for? If someone like Apple were to take someone to court over a EULA, they either should know EULA law inside and out or expect they would have an insane legal bill as the experts (who work for Apple), take them to the cleaners.

 

I know from my own research, and consulting with lawyers, my knowledge in EULA exceeds most lawyers (it's a very specialized field I imagine), but if the knowledge of a EULA lawyer matches that of contract lawyers in contract law (a EULA is a form of contract), I can say with certainty to expect them to be legal experts at enforcing EULA law.

 

So in sense you are right (why other companies are probably waiting to see how the Psystar issue plays out), but someone with the proper knowledge and understanding would have little to fear.

 

I have made clear my use of a pirated copy of OS X (kalyway 10.5.2), my willingness to purchase a legal copy of OS X if it were made available to me for my hardware, and the issues I have brought forth about the EULA publicly and with my correspondence to Apple Inc.'s legal department. I expect that Apple will respond in some way, shape or form, but the longer they delay, the weaker their legal position becomes. They have made no responses within 72 hours of the things I have pointed out to them, so I already have the precedent of being able to say they agree with what I have said from lack of objection.

 

I don't expect Apple would set myself aside as an example anyways, because their are easier fish to fry.

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Ok, are your points are assuming that you'd use a real install CD though on an EFI emulator.

 

I'm guessing the first copies of Kalyway/Netkas/etc had to have been installed somewhere in order to modify them to work on x86 PCs.

 

The EULA already says that you may only make one copy, which you are not allowed to modify/redistribute/copy in any way.

 

If you never installed the OS to modify it, then yes you never agreed to the EULA, but then you never had any express permissions granted by apple to even copy/redisribute/modify it.

 

So if no one can ever install the (Original) OS without agreeing to the EULA, no one can modify it, all redistributed versions are then in violation of copyright laws. (Also if no copies are allowed to be modified, the EULA can't be removed)

 

OK, it may just be me, my way of seeing it. After all, Judges just look at two sides of the argument and form an opinion on the case.

 

Also the license states, If you fail to comply with the terms of this license, the License is terminated. All use of shall cease, and you must destroy all copies full or partial of the Apple software.

 

So if your saying that the License should be consdered active as soon as you purchase it, if you disagree, you have to destroy it.

 

I'm surprised at the legal dept. Maybe theyre overwhelmed? lol

I just dont have enough faith in these arguments to actually use them against Apple. Chances are I never will, and I applaud your courage to actually go and do so.

 

On the grounds of the Monopolization/Competition stance, I dont think it is true that if Apple changed the OS to run on any pc it woul benefit anyone. It would probably spell death for Mac OS X or above. If OS X was sold on normal PC's it'd go the way of Windows, an be massively installed without purchase. Apple make most of thier money from selling macs, iphones, ipod. They only make a minute amout from software sales. However they only make the hardware sales because of OS X (an now you can dual boot). If no one had a reason to buy iMac/Mac pros etc then no one would. Apple would lose a huge amount of revenue. More and more people now are building their own pc's so pre-installed software sales are going to decline.

I dont think apple are ever going to allow installation on PC's, and I reckon there only answer is going to be making mac activations in the same way that iPhones have to be activated. At least thats what i'd if i were them.

 

This argument is obviously way over my head, So please don't take anything i'm saying as me calling you stupid, it is I who is stupid, this is definately not my field of expertise, and I actually hate how confusing Law is. and i'm not gonna pretend to understand what the EULA really means (Apparently neither Apple or anyone does). I'm just gonna say go for it, use Osx86. If Apple do decide to crucify you, they probably will. If they dont care, they wont. I' only say just dont expect to be automatically off the hook because of technicalities. (Unless your O J Simpson)

 

I enjoy your answers to my erm.. poorly constructed points, and thanks for correcting me.

 

Ash

:)

 

EDIT : My d key only works half the time.. sorry for errors.

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Ok, are your points are assuming that you'd use a real install CD though on an EFI emulator.

 

I'm guessing the first copies of Kalyway/Netkas/etc had to have been installed somewhere in order to modify them to work on x86 PCs.

 

The EULA already says that you may only make one copy, which you are not allowed to modify/redistribute/copy in any way.

 

If you never installed the OS to modify it, then yes you never agreed to the EULA, but then you never had any express permissions granted by apple to even copy/redisribute/modify it.

 

So if no one can ever install the (Original) OS without agreeing to the EULA, no one can modify it, all redistributed versions are then in violation of copyright laws. (Also if no copies are allowed to be modified, the EULA can't be removed)

 

OK, it may just be me, my way of seeing it. After all, Judges just look at two sides of the argument and form an opinion on the case.

 

Also the license states, If you fail to comply with the terms of this license, the License is terminated. All use of shall cease, and you must destroy all copies full or partial of the Apple software.

 

You pretty much hit the nail on the head with everything you said here, but (bet you knew that was coming)...

 

What is probably tying Apple's hands severely is the APSL (Apple Public Source License) that the Darwin kernel (the kernel OS X uses) was released under, which allows anyone to modify and distribute the Darwin kernel (there are many restrictions on the license). So anyone who agrees to the APSL can modify and distribute versions of the kernel, anyone who agrees to the Xcode license can create and distribute drivers.

 

So redistributing the entire OS is against copyright laws, yes, but anyone can modify and distribute versions of the kernel, drivers, and installation utilities, legally and without restriction.

 

So if your saying that the License should be considered active as soon as you purchase it, if you disagree, you have to destroy it.

 

If the box says on the package the software contains a EULA that is required to be agreed to in order to purchase the product, than theoretically, yes. In practice, unless the retailer is an authorized agent of the manufacturer, this method is too weak legally to be used by software manufacturers. A court will require some sort of action in some way, shape or form to confirm a contract between two parties.

 

For a contract to be legal, there must be an offer, acceptance of an offer and consideration (money paid). So in the above case, an offer was made, the packaging stipulates you accept the offer if you purchase the merchandise, and there was no consideration (the money paid is to an unrelated third party). There is no affirmation of the contract (consideration) until the purchaser takes some action in any way shape or form.

 

This argument is obviously way over my head, So please don't take anything i'm saying as me calling you stupid, it is I who is stupid, this is definately not my field of expertise, and I actually hate how confusing Law is. and i'm not gonna pretend to understand what the EULA really means (Apparently neither Apple or anyone does). I'm just gonna say go for it, use Osx86. If Apple do decide to crucify you, they probably will. If they dont care, they wont. I' only say just dont expect to be automatically off the hook because of technicalities. (Unless your O J Simpson)

 

I enjoy your answers to my erm.. poorly constructed points, and thanks for correcting me.

 

I never took anything you said as calling me stupid, but rather, you either did not understand what I am trying to say, or that you disagreed with some of what I was trying to say. I find it encouraging when people are willing to enter public discourse on subjects like this, as it increases all of our knowledge and understanding collectively, and that is always a good thing.

 

I never consider anyone who has less or more knowledge and understanding in any area as inferior or superior. We are all on this earth to further and better ourselves and all others.

 

I'm surprised at the legal dept. Maybe theyre overwhelmed? lol

I just dont have enough faith in these arguments to actually use them against Apple. Chances are I never will, and I applaud your courage to actually go and do so.

 

I am not actually doing much except something that benefits me and making it publicly known. I highly doubt if Apple even cares if one individual is publicly declaring "I will buy your product, but I am going to use it anyway without your consent until you make it available to me."

My challenge to Apple is still cached here if anyone wants to see it.

 

The InsanelyMac Moderators took it down.

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cool thanks. It starting to make a little more sense.

Also I like to explain myself on forums because threads turn too easily into insults. Glad to chat with someone likeminded.

I had no idea about the kernel. I know some of os x is bsd/gpl but I just have no idea to what extent.

I will check out the cache later. I'm between macs at the moment and living entirely off an iPod touch.

 

Anyway, back on topic. If the kernel is allowed to be modified great, but the eula surely applies to all the software of os x, like finder etc. So we can modify the kernel but were still not allowed to run the stuff on top of the kernel? So even if we make darwin x86 compatible, as allowed we still bound by the eula for using the GUI etc. Man I'm getting so confused with this now. Hopefully that makes sense, and isn't complete blabber.

cheers

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Anyway, back on topic. If the kernel is allowed to be modified great, but the eula surely applies to all the software of os x, like finder etc. So we can modify the kernel but were still not allowed to run the stuff on top of the kernel? So even if we make darwin x86 compatible, as allowed we still bound by the eula for using the GUI etc. Man I'm getting so confused with this now. Hopefully that makes sense, and isn't complete blabber.

 

That is right, if you are bound by the EULA, everything it says applies. Note that it says the following near the top;

 

IMPORTANT NOTE: This software may be used to reproduce, modify, publish and distribute materials. It is licensed to you only for reproduction, modification, publication and distribution of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce, modify, publish or distribute. If you are uncertain about your right to copy, modify, publish or distribute any material, you should contact your legal advisor.

 

Under the EULA, for anyone bound to the EULA, it tranfers to you, the rights to use the OS to reproduce, modify, publish and distribute materials that you are allowed to reproduce, modify, publish and distribute. With some restrictions, the kernel falls under this definition, so the rights to reproduce, modify, publish and distribute the kernel are not limited by the EULA, but are instead limited by the terms and conditions of the APSL.

 

This means that by mixing commercial and open source software, Apple has given up some control of their product, because the kernel can be freely reproduced, modified, published and distributed by anyone that sticks to the terms and conditions of the APSL.

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If the EULA says something that is inherently illegal (to cover illegal activities) would that EULA be legally binding?

For example, If an EULA were to say that you could not sue the company the EULA belongs to, and you accept it would you then be unable to sue them?

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If the EULA says something that is inherently illegal (to cover illegal activities) would that EULA be legally binding?

For example, If an EULA were to say that you could not sue the company the EULA belongs to, and you accept it would you then be unable to sue them?

 

Any contract between two parties where one party has a superior bargaining position, and the contract is offered on a "take it, or leave it" basis (most, if not all EULA agreements) are considered unilateral contracts.

 

Any terms and conditions in a unilateral contract that are illegal, are can be shown that any reasonable person would not agree to, can be challenged and would have no force and effect.

 

No reasonable person would forfeit their right to sue a party for that party's wrongdoing, so such a condition in a unilateral contract would have no force and effect.

 

All contracts, bilateral or unilateral, are legally binding unless they violate some law.

 

A contract that, for example, stated that the other party may shoot and kill you, would be legally binding, but the other party would still face murder charges if they performed on the contract. Many individuals personal rights are protected, such that they cannot be waived.

 

If performing on a contract (meeting the terms and conditions of a contract) by either party would violate law, any term or condition requiring such action would not be enforceable and have no force and effect.

 

If, in the preceding example, the other party failed to perform on the contract to shoot and kill you, the other party would have a valid legal defense against breach of contract, because it is not legal for them to shoot and kill you.

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Would you (or someone else) then please clarify the following (quoted word for word from the OSX EULA):

2: Permitted License Uses and Restrictions

A: Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple labeled computer, or to enable others to do so. This License does not allow the Apple Software to exist on more than one computer at a time, and you may not make the Apple Software available over a network where i could be used by multiple computers at the same time.

I think the second sentence states it pretty clear but I'd like to hear other opinions on this statement.

 

For some rather interesting dialog, check out this discussion (page 3 is good!): Psystar on Apple's EULA

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At least this was better than the "stick an apple label on a PC" argument that some proclaim as the true meaning of the EULA. :(

 

Unless you really believe that "Apple-labeled" is the best wording a legal team could come up with to describe products manufactured by Apple Computer, you have to admit that the wording is up for interpretation at best and just plain silly on their part at worst. Even sillier is the fact that they have had plenty of time to ammend this and have chosen not to, what does that say?

 

http://www.vmac.org/support/rom.html

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2: Permitted License Uses and Restrictions

A: Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple labeled computer, or to enable others to do so. This License does not allow the Apple Software to exist on more than one computer at a time, and you may not make the Apple Software available over a network where i could be used by multiple computers at the same time.

 

This portion of Apple's Software License Agreement literally means what it say. Apple Inc. is defining what you are permitted to do with your software. If you are bound (have accepted) the terms of the Apple Software License Agreement, you are limited by these restrictions.

 

Because we PURCHASE software, there are no restrictions on what we can do with software, unless we agree afterwards on additional restrictions (a EULA).

 

Any time in court, where any individuals have been shown to have been bound (agreed to) to a EULA, the EULA has been upheld as a lawfully binding contract.

 

That means, if you have accepted the Apple Software License Agreement, then you are lawfully bound to abide by and keep to the terms and conditions of the agreement. This is one of the reasons software manufacturers want to bind you to an additional contract after you purchase software, because you would otherwise be lawfully entitled to install the software on anything you own.

 

For a few examples, let's assume you owned 20 computers (one of them being an iMac).

 

In the first example, you install Mac OS X Leopard on your iMac, accept the license agreement, and deciding you like it, you install it on all your computers. Apple somehow finds out and sues you. In this case, Apple wins, because you agreed to only install it on one computer and you installed it on 20.

 

In the second example, you purchase Mac OS X Leopard, remaster your installation disc, removing the confirmation prompt for the license agreement, and install it on all your computers. Apple sues you. You show the courts how you bypassed the license prompt, Apple shows the court that the software contains a license agreement and allege that by you using the software you agreed, and you show the courts the software's packaging and show that the packaging does not indicate that a license agreement is included. Apple loses because the purchase contract is concluded upon the purchase of the software, and the packaging does not indicate to the purchaser that additional terms and conditions apply.

 

In the third example, you sell one of the computers from the second example, and Apple sues you for software piracy. Apple alleges you are selling pirated software, and you show the courts you are simply selling off one of your personal computers, and you normally install the software, which you legally own and are entitled to install on all of your own personal computers. The case is dismissed because you were not selling pirated software, but selling hardware.

 

In the fourth example, having beat the software piracy lawuit, you decide to purchase large quantities of hard drives, install your copy of Mac OS X Leopard, and resell them. Apple sues you for software piracy, and you rely on your previous defense that you are entitled to do whatever you want with your property, including installing your software on any hardware you own, and resell any of your hardware you want. Though the courts agree that you have abided by the letter of the law, however, the courts determine that your intent was to increase the value of the hardware by making and including a copy of your software on your hardware, effectively making the hardware the medium by which you distribute pirated software. You get convicted for software piracy.

 

Elaborating on the fourth example, intent is an important consideration in the courts, because different intents cause the same type of actions to have different natures. In the third and fourth examples the type of action is the same, but the intent is different, causing the nature of the actions to be different.

 

Revisiting the second example, let's say you run a architectural firm, and you provide each of your employees with one of your computers for their own personal use. Apple sues. You lose, because though each computer is technically yours, the courts determine that the computers are effectively the employees computer, and accordingly, an additional copy of the software should have been purchased for each computer provided to an employee for their personal use. The charges of piracy are dismissed because you actually bought the software and you weren't reselling pirated copies, but you still have to pay damages to Apple for the additional copies you should have bought.

 

Basically, it comes down to that if you agree to a EULA of any sort, all terms and conditions of that EULA (that are lawful in nature) are enforceable. If you haven't agreed to a EULA, and you could show that it does not apply to you for some reason, the EULA is not enforceable.

 

In any case, actual cases of software piracy have no relation to the terms and conditions of EULA's, and a violation of a EULA does not equate to software piracy.

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