Apple EULA Enforcability

[Viscaria]

It seems to have entered the conventional wisdom that installing OS X on your PC is illegal. Prima facia, since it is also conventional wisdom that possession is nine-tenths of the law, if I buy a copy of OS X I can do what I want with it for my own purposes. It is well known that the OS X EULA prohibits installing it on non Apple labeled hardware (whatever that means), and I expect to receive no support from Apple for their software if I use it in a way contrary to this clause, but what legal claim can they make against me?

 

Perhaps if I sold it preinstalled on a PC there would be a case, since I would be actively profiting from reselling their product in a fashion contrary to this agreement. Bringing in profit brings up another issue; since businesses are the only entities that can realistically be pursued for software piracy what about using it in a business? If I am not selling OS X for a profit, but utilizing it for a profit, if I am indeed guilty of infringing upon Apple's rights by using OS X as I see fit, Apple then has the potential ability to go after profits I may have produced through the unlawful utilization of their product. Even then, if I have licensed their product, paid for each copy I used, and violated no agreement in any way with the exception of installing OS X on non Apple hardware, can they possibly have a case?

 

IANAL, but it seems that if they consider OS X retail packages to be "upgrades" that can only be applied to Apple hardware originally purchased with a (non upgrade) version of OS X then they have failed due diligence in not bothering to actively check if I have the hardware in question before selling me the "upgrade" in question.

 

I have tried to wrap my head around this issue for a while, and I am sure I will get flamed by the same crowd that claims that I am a thief for using an iPhone without AT&T, but I really am trying to understand the "OSX86 is illegal" claim. As it is I can't see how it can be anything more than unfounded conventional wisdom.

 

Update: Yeah, this was inspired by the Psystar OpenMac news. I was trying to spark some discourse on the issue here. Anyway. Wired has a great article on this subject if anyone wants a more informed opinion than mine.

[sarahbau]

I don't think using it is illegal, but selling it almost certainly is. Providing hacks to get OS X to work might possible be illegal. Kind of like the difference in dealing and using drugs - if you're caught dealing, or you have enough that they suspect you have intent to sell, you will have a much harsher penalty.

[westwaerts]

for europe there is a bigger doubt, apple´s eula holds,

because allowing osx only on special hardware is a competition restriction, which is not allowed.

microsoft had to pay quite a lot of money, for a similar issue.

[Superhai]

It all depends on the jurisdiction you belong. But basically for most the laws are untested or have only partly relevant cases so the outcome is basically up to the judge!

 

For me where I live, as an end-user an EULA has basically no legal implications, and clicking an agree button has close to no value in court. There are laws against breaking copyright protections. But there are also powerful laws protecting the end-user. You have competition protective legislation and of course laws that regulate how an agreement between two parties can be made. etc.

[DJ Loe Kee]

It all depends on the jurisdiction you belong. But basically for most the laws are untested or have only partly relevant cases so the outcome is basically up to the judge!

 

For me where I live, as an end-user an EULA has basically no legal implications, and clicking an agree button has close to no value in court. There are laws against breaking copyright protections. But there are also powerful laws protecting the end-user. You have competition protective legislation and of course laws that regulate how an agreement between two parties can be made. etc.

yea, it's pretty much up to the judge or jury to decide if the law was been broken or not. in the u.s. (and other countries), once a judge or jury has made a decision than they decide cases usin' their rulings in similiar cases until another judge or jury decides that the previous judge/jury were wrong in their findings and makes a ruling that disagrees with the previous ruling. than the newest ruling of the judge/jury becomes the ruling that other judges/juries follow in similiar cases. and the cycle continues...

 

so if you are ever suin'/bein' sued and want to win, find a previous case with a ruling that favors you and tell the judge/jury about it.

[munky]

could this be inspired by the OpenMac by any chance?

 

if this becomes a test-case for EULAs, there are interesting times ahead!

 

http://www.macnn.com/articles/08/04/15/clo...to.fight.apple/

[knyte2]

A 2 sided reply

 

Side 1

Way to go, I'm really happy to see someone trying to make hardware available that fills the gap tween the mini and the Pro.

 

Side 2

Stop it you guys! Apple impliments an update that renders all our Hacks inoperable with hardware checks.

 

 

 

I suppose it was only a matter of time before someone thought it might be a good idea to market something that we all knew about already. I just hope that the end result is a "beige box" version of OSx that will be sold for a higher price, without support. But somehting tells me that Steve wouldn't stand for that.

[pebcak]

Around here Apple would have problems to enforce their EULA, mainly because you cannot read it before you open the box (of the OS) you buy. However once you open the box you can not give it back... in the end you would pay for something you are not allowed to use, but they won't give you the money back. That's 1. not so very nice and 2. not so very legal.

[syrian_gamer]

Its not so much illegal as it is theft in the sense. Although now that i think about it if you downloaded it from the bay it might be illegal. On the matter of installing it on your pc is another issue. I guess you are violating the EULA. So they could sue you. but you wont go to jail for it.

 

*Please note i am not a lawyer and what i say should not be considered legal advice*

[Hagar]

I generally approach this from the other direction..

 

go through the installation process step-by-step and see if you can do each step without breaking any local laws.

 

if you've downloaded you DVD, you're out before you've even started, because that's piracy in any language.

if you install from a retail DVD, just how do you do it? you could attach your harddrive to a mac, install that way, so far so good, but then you need to check each component for legality as you add it..

So..

 

pc-efi (OOPS! after all the shouting who knows what the real license is there? isn't it derived from opensource?)

 

smbios.kext (looks fine source distributed as required by APSL)

 

and so on for every bit you add or remove to get it working.

 

(just 2 examples, the list will be different depending on your install)

 

I have no doubt whatsoever that it is possible to install it legally in some jurisdictions, but it would have to be done very carefully.

[danielmramos]

This is a bit off subject; however, it still concerns Apple's intellectual property and the legal use of such. Do you all remember years and years ago when companies were seeking to copy the bios that eventually allowed other manufacturers to clone the IBM PC? Well, now that Apple computers are made on what is essentially plain jane PC hardware what is keeping from some company doing the same with the Apple EFI firmware code? As I recall the original cloners utilized a clean room process to make a 100% compatible non IBM bios. This was challenged in court and the cloners won with their clean room approach. Well, wouldn't it be even easier for a company to clean room Apple's EFI code? After that was done wouldn't they be able to sell their cloned clean room code with a statement that it is not for running OSX on non Apple hardware; rather, it is for EFI experimentation and research only? People would then be able to flash a non Apple EFI motherboard, buy a licensed copy of OSX, and run what would be the closest cousin to an actual Mac not using Apple hardware. It seems to me to be hypothetically a very similar circumstance to what happened in the PC industry in the past. BTW, I too am posting this purely for the purposes of intellectual discussion as I personally have not built a hackintosh yet. I have been doing lots of research concerning a hackintosh build, so I may some day. Frankly, when a person is able to purchase a practically new Refurbished Mac Pro for $1999 from Apple, and about $1850 from other companies, it doesn't make a whole lot of sense to try and build anything similar as the price and headache are not worth the small difference in savings. It is another thing entirely when you are considering building something much better than a Mac Mini for ~$800. Personally I am still salivating over a refurbished Mac Pro. Sigh.

[V Plamondon]

I will try to clarify the legal issues about the EULA for everyone.

 

A EULA is a form of contract. If you violate a contract, you are not breaking the law, you are breaking your contract. If you have caused injury to Apple, then on the basis of that contract, Apple could seek remedy against you in court. Unless there is a specific violation of law, there is nothing one could be charged with in the case of a breach of contract (it would depend on the laws of your country and what you have done).

 

In Canada a contract is not valid unless an offer has been made, the offer has been accepted and consideration (payment is made). So here in Canada, if you go to the store and a product is for sale (offer made), you grab the product (offer accepted), pay for it (consideration made) and bring it home, you and the vendor have completed a valid contract and the product is yours, and yours to do with as you will.

 

Now comes the interesting part, you take the product home and try to install it on your computer and the EULA comes up and the product will not install until you agree to the EULA. Now remember, you already legally own the product, and because this action would be considered "Duress of Goods" (the software company will deprive you of the software unless you agree to the EULA), this additional contract is not legitimate for this reason.

 

Now if the software would install if you rejected the EULA, that action would not be considered "Duress of Goods" (always try rejecting the EULA first for this reason), and agreement to the EULA might be considered a valid contract. Remember though, an offer is made (EULA), offer accepted (accepting EULA), but there is no consideration (you didn't pay any more money), so this contract could be argued to be invalid (it is likely the software company will argue that the original payment is consideration).

 

So in the unlikely event that a software company brought me to court, I produced my receipt or showed I obtained the product in a legal manner, no laws were shown to be broken by me, maybe the EULA was upheld because I did not know it was an invalid contract and did not object to it, the software company would still have to show that I injured them in some way in order to seek remedy.

 

To summarize, except where there are laws to the contrary, a violation of a EULA is a violation of a contract (breach of contract) and therefore not a violation of law. In any case, the validity of the EULA as a contract in this example is definitely questionable.

 

The validity of a EULA as contract will vary depending on the specifics of how the EULA as a contract was entered into, and the specifics of the EULA itself.

 

The legality of your actions will also vary according to specifically what you have done, regardless of what the EULA says, or whether it is a valid contract or not.

[metalmaniac]

EULA's are viewable online, and I imagine if you went into the Apple store, or contacted the help service, or whatever you could read the EULA prior to purchase.

 

This is becoming very similar to this thread http://forum.insanelymac.com/index.php?sho...mp;#entry804725

 

Furthermore, i'd like to say when i argue against you, im 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.

[V Plamondon]

This is becoming very similar to this thread http://forum.insanelymac.com/index.php?sho...mp;#entry804725

 

The topic you mentioned was inspired by the topic you are reading now. I thought it would be nice to share the insight over the years I have gained researching about EULA law. To this point I used the knowledge and understanding to get refunds on software I had opened and was dissatisfied with. Many stores do not do refunds on open software and many manufacturers do not give dissatisfied customers their money back (it would be nice if this would change).

[~pcwiz]

Doesn't everyone say that the EULA has never been proven in court?

[V Plamondon]

Doesn't everyone say that the EULA has never been proven in court?

 

The two best examples I know of EULA's being tested in court are "Softman vs Adobe" and "Blizzard vs BNETD", please note, I have oversimplified what was ruled on.

 

Softman Products Company, LLC bought bundled copies of Adobe's software, separated them, repackaged them and resold them to consumers individually. Adobe had gotten an injunction against Softman, but it was afterwards dismissed. This is the case that is probably causing Apple to seriously think twice about whether it goes after Psystar.

 

Adobe claimed Softman violated the terms of the EULA and there repackaging was trademark violation.

 

On the order dismissing the injunction, the court confirmed Softman had "first sale doctrine" rights (once purchased he could dispose of his property in any way shape or form), and the EULA did not apply because Softman did not use the software, activating the EULA (a contract is not a contract unless entered into by the consent of both parties). Since Softman's packaging matched Adobe's and consumers could still register their products and receive support from Adobe (and Adobe would not commit to refusing support to Softman's customers), it was concluded that a deprivation of customer support and technical support would constitute a product not being genuine, and Adobe could not establish Softmans customers where being deprived of customer support.

 

In "Blizzard vs BNETD", the defendants did not argue a "fair use" defense and admitted to agreeing to Blizzards TOU and EULA (right from the get go, the defendants shot themselves in the foot three times), and entered an interoperability defense (that reverse engineering is allowed by law to acheive interoperabilty with another program or system). Of course the ruling pointed out that by agreeing to the TOU and EULA's the defendants agreed to give up their right to reverse engineer Blizzards program, and their interoperabilty defense was not valid because bnetd did not actually authenticate valid users of Blizzards software, allowing piracy of their software.

 

"Softman vs Adobe" seems to have gone nowhere since the injunction was dismissed, and "Blizzard vs BNETD" is under appeal.

 

These two cases demonstrate perfectly the importance of whether or not a EULA is valid or not. Softman demonstrated that the EULA was not applicable and the case didn't even go to trial. "Blizzard vs BNETD" defendants admitted to agreeing to the EULA and now they are in a world of trouble.

[pebcak]

Since Apple ships the same EULA for Safari & Itunes on Windows & Mac OS X, I think you could argue they give a {censored}. I doubt many Windows-PCs are apple labeled computers...

[erwin15155]

if osx86 illegal? why apple didn't do anything to this site....

 

ithink apple get "free promotions" from osx86, coz everyone who try osx86...they think to buy apple computer.

[endafy]

I live in Canada.

If I purchase the software then delete the eula and repackage the dvd install it and use it without agreeing to the EULA am I breaking any rules? I am disposing a part of the product I don't want. I am not releasing it to the public but just installing it on my current PC. Using a friend's Mac I can hook the HDD up and install it and do the whole thing legally without accepting the EULA because it doesn't exist as I threw it out. I didn't agree to it but I want to use the software. Of course I eventually break down in time and buy a Mac mini but if this is legal than they have issues bigger than you may believe...

[V Plamondon]

I live in Canada.

If I purchase the software then delete the eula and repackage the dvd install it and use it without agreeing to the EULA am I breaking any rules? I am disposing a part of the product I don't want. I am not releasing it to the public but just installing it on my current PC. Using a friend's Mac I can hook the HDD up and install it and do the whole thing legally without accepting the EULA because it doesn't exist as I threw it out. I didn't agree to it but I want to use the software. Of course I eventually break down in time and buy a Mac mini but if this is legal than they have issues bigger than you may believe...

 

Once you pay for merchandise, your purchase contract is complete. Most EULA's are presented after this contract is completed and are additional terms and conditions the manufacturer want you to agree to. If you bypass the EULA in any way, such as the way you describe, it's terms and conditions do not apply to you.