Will Psystar Represent A Key Case Concerning Enforceability Of EULAs?
from the let-the-lawsuits-begin! dept
A few weeks back, a company named Psystar made some news by offering to sell PCs with Mac OS X installed. This raised questions about how legit this offer was. After all, when Steve Jobs returned to Apple years back, he killed off all licensing deals that allowed any kind of Mac clones. However, the company has been showing off the clones it's created. Now, the questions are all about whether or not Psystar's actions are legal. The company (of course) says it is legal, and that it's buying a legal copy of the operating system and installing it on PC hardware. However, the end user license agreement (EULA) includes the following:"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."That would seem to preclude what Psystar is doing. The News.com article above does an excellent job laying out the legal issues here. While the courts have found various clickthrough EULAs enforceable (even though no one -- including the companies themselves seem to read through them), it's possible that Psystar could attack the EULA from other directions. As the article notes, it could try to use the first sale doctrine (which allows you to resell copyrighted products you've bought) but that likely won't fly. What may be most effective (even if it's still a long shot under the law) is to claim that the EULA illegally "ties" the software to Apple's own hardware. However, making a claim about tying is quite complicated, and it seems unlikely that Psystar would prevail. This seems unfortunate for the market -- as getting some additional competition into the market would only help drive innovation. But, under the current law, it's difficult to see how Psystar can win.
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Filed Under: apple os, eulas, first sale, license agreement, tying
Companies: apple, psystar
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Apple is on a slippery slope...
As an example, ticket scalper never sell the ticket for higher price, they will sell a ticket (at face price) along with a blah-blah for $100. The blah-blah can be anything like a ballpoint pen, home-made mp3, whatever. This is a way to skirt the face-value resell laws.
The key issue is are you REQUIRED to buy ancillary items or can you use your own or nothing at all.
I buy a Budwiser, pour it into a glass of my own design and re-sell it at an increase in cost.
I can buy a "Flaming Chipmunks" CD and play it on any player of my choice for my own enjoyment; or not play it at all again for my own enjoyment.
For Apple to Force you to use their equipement (Mac for OS-X) or their service (iTunes for iPod) would be considered tying/linking.
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Re: Apple is on a slippery slope...
But, in some sense, every product is "tying." Every product is a bundle of other products. That's why I have trouble with rules against tying. Is it illegal for Honda not to just sell the tires off a car? No, because that would be silly. You have to buy the car with tires...
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Re: Re: Apple is on a slippery slope...
For Apple, if they only allowed the iPod to sync with iTunes, that would be illegal linking - right now, you can use the iPod with any syncing software, Apple just encourages you to use iTunes and people tend to use what the manufacturer says anyway.
Psystar, I think, has a case here - for Apple to sell their closed-source version of Darwin (yes, that's all it is, just with lots of GUI extras on top) and then tell you that you can't use it on your choice of system is just as wrong as Honda telling you that while you can certainly buy the car, or the tires, you can only use them on roads that Honda either owns and has sold you, or has constructed on their own and restricts to their cars only.
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Re: Re: Re: Apple is on a slippery slope...
It's what's separated them from Windows, and while most PC users out there just refuse to give Jobs any credit, the guy's stock has skyrocketed since he's taken over in the late 90's.
He has his own business model, and it's working well for him. If people don't agree with it, don't support the product...or start your own company and run it houw you want.
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Re: Re: Re: Re: Apple is on a slippery slope...
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Re: Re: Re: Re: Apple is on a slippery slope...
I agree with you for the most part. However, when Apple releases a new OS X version (see Leopard), people can buy that separate from the physical hardware. While it's true that if you buy a laptop/desktop, you will get the OS bundled, you can still buy the OS separate from the hardware. This, at least in my opinion, is where the tying argument would come into affect. It isn't bundling an OS with hardware (OEMs do this all the time), this is saying that this software you buy from me can only work on hardware you have to buy from us.
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Re: Re: Re: Re: Re: Apple is on a slippery slope...
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Re: Re: Re: Apple is on a slippery slope...
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Re: Re: Apple is on a slippery slope...
Exactly.You NEED the tires to run the car.Pystar is saying you DON'T NEED a mac pro or imac or macbook to run OS X you can run it on their machine. The OS X EULA is saying the opposite. It sounds like tying to me.
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Re: Re: Apple is on a slippery slope...
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Re: Re: Re: Apple is on a slippery slope...
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Re: Re: Re: Re: Apple is on a slippery slope...
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Mistake....
By putting legal pressure on this company that wants to do nothing but promote your OS and get it into more hands will ultimately do nothing but hurt Apple - think Creative Labs going after the guy making a better driver and what that did to their reputation.
SJ should look at this as an opportunity and release that there are only so many people that will buy a package deal from Apple and the best way to continue adding market share is to expand and let others help you. If I was SJ, I would call this company and offer them a license deal to sell the OS instead of trying to stop them.
My hunch though is that SJ will do what he always does, control freak himself to ensure he stays in the #2 position for life.
Freedom
P.S. Maybe this company should just say that while not supported by Apple that their hardware will load the Apple OS with little to no tweaks required. This way, they aren't directly selling the Apple OS, but giving people a platform that will work with the Apple OS without having to deal with the crazy driver search that is often necessary if using a standard PC.
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Re: Mistake....
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Why does Crapple care?
They need to make up their bloody minds; do they want non-mac users to use their software or not? Personally I prefer NOT.
My fave quote about the pc/mac debate: One thing PC users can do that mac users can't: STFU!!
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work-arounds?
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Honda(Apple) sells cars with tires. Owners are allowed to upgrade a Honda car with tires from different manufacturers.
Honda also sells upgrades to those tires. But before a user can install the tire that they already bought from Honda they have to warrant that they will install it only on Honda licensed cars. The only Honda licensed cars are those made by Honda.
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What if they didn't agree
There are probably other approaches, too. But as much as the courts seem to favor restrictive IP laws, wouldn't it be a bit of a stretch for Apple to argue that by bypassing the EULA, Psystar was implicitly agreeing to it? Or that people are bound by there mere presence of an EULA even if they don't take the slightest affirmative action to agree to it?
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Re: What if they didn't agree
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Re: Re: What if they didn't agree
But regardless of the specific means employed, my broader suggestion was that they may have found a way to install OSX without agreeing to the EULA.
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The meaning of the word 'is' is attack...
So I went to the box my iPhone came in and I pulled out the Apple Logo sticker they included, and I slapped it on the side of the Shuttle case. "There!", I exclaimed, "An Apple-labeled computer if ever I saw one."
I think the language of the EULA is deliberately imprecise because the lawyer who wrote it likely was thinking of the IBM anti-trust kerfuffle that prevented hardware and software tying. An EULA more precisely worded would say Apple-manufactured. But see, he was clever because he realised there was a greater pitfall here in trying to produce a computer that complies with the SW license (Apple-labeled), yet still avoids Trademark infringement, which is easier to attck legally.
PsyStar is sidestepping this strategy and forcing the issue on the EULA's weak tying.
Another thought:
If copies of OS-X come with an Apple Logo sticker too, PsyStar could sell the PC with a naked HDD, a retail OS-X and a bootloader DVD and the following instructions:
1) Open Retail OS-X box, remove Apple Logo Sticker and apply to computer case. Write "Apple" on logo sticker.
2) Insert Bootloader DVD, start computer.
3) Face Cupertino, Raise middle finger.
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Precisely the reason I've never been interested in buying a MAC.
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you guys, including jobs, are missing the point
limiting the hardware platform is how companies like sun microsystems can deliver super reliable systems. they control the hardware and the software and should make money off both. macs are seriously expensive compared to PCs, and sun hardware is ridiculously expensive compared to macs.
a mac clone made from more or less commodity parts is not going to be the same as a real mac. it's a knockoff.
all apple has to do is let these systems ship as they are. the psystar website even says there are issues with macOSx and some stuff doesn't work:
http://www.psystar.com/can_i_run_updates_on_my_openmac.html
http://www.psystar.com/how_do_i_ eject_a_cd_without_an_apple_keyboard.html
any mac fanboy will tell you that everything on an apple "just works". if there are issues, then it doesn't "just work". that's the thing with knockoffs, you always get what you pay for.
now, if apple is taking a loss on leopard in the hopes that it will spur the sale of mac hardware, then apple needs to "fix the glitch" and stop taking a loss on an obviously viable standalone product.
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Re: you guys, including jobs, are missing the point
This discussion is about the legality (or lack thereof) of Psystar's operation, and the implications for EULA's in general and the OSX EULA in particular. Whether or not it's a good idea to buy a knockoff Mac clone is neither here nor there.
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Re: Re: you guys, including jobs, are missing the point
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Legality, Shmegality
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There must be a difference...
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Does this mean that I cannot install OS X on my Dell then? Or can I buy an Apple sticker and fulfill the EULA?
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Re:
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Use a darn label stating 'APPLE'
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You do not need the copyright holder's permission to make these copies, and thus to install and use the software, once you've legitimately obtained a copy.
Of course, if you buy a shrink-wrapped box containing a copy from a store, you have now legitimately obtained a copy. As a result:
The EULA offers nothing in return for your accepting it.
It purports to give you the right to install and use the software, in exchange for agreeing that it's "licensed, not sold" and agreeing to all kinds of limitations on its use that have nothing to do with copyright law. But you already have the right to install and use the software, per the above, once you've paid for a copy at the store.
That, combined with its non-negotiability, makes the EULA a completely one-sided "contract of adhesion" that provides no consideration to the consumer, and such "contracts" are null and void under most states' laws. (Virginia and Maryland seem to be the exceptions.)
Psystar's defense should therefore be to attack:
* Any claim of copyright infringement with a reference to USC 17 section 107(a)(1); and
* Any claim of breach of contract with the above argument attacking the validity of the contract itself.
The sticky area is in installing the software, then selling the computer to a customer, which might be seen as distributing the normally-noninfringing copy made by installation. They need to give the copy's original media to the customer to have a defense here; in transferring all of the copies they made from the one copy they bought to the same customer they can use first sale as a defense.
Any argument that they need to abide by the EULA to be noninfringing because the EULA says so is, of course, circular.
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Re:
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You cant eat these cheeseburgers unless you say a prayer first.
You can't use this deodorant unless you play football.
You can't read this magazine unless you vote for the specified political party.
You may not study or reverse engineer the mechanism used to dispense product through a straw which might lead you to understand how to insert another liquid (say, water) into the container and shake in order to obtain access to a diluted form of the remaining product.
The first sale doctrine was made to keep people from being dicks in ways that nobody wants to be vulnerable to; and every sane person, no matter how meek or mild mannered, when confronted with that dickery will use their middle finger to show their contempt.
So forget the first sale doctrine technicalities. EULAS are _dickish_ in all circumstances and ought to be banned just like first sale doctrine violations.
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Re: Bah who needs one
"...once you've legitimately obtained a copy."
How do you legitimately obtain a copy without agreeing to the EULA?
You cite a law that grants a user the right to make copies of shrink wrapped software, and imply that that law also grants the user the right to install to use shrink wrapped software.
Copyright law deals with the right to copy, use of the software falls under contract law.
"... and thus to install and use ..."
This is the foundation of your case.
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Re: Re: Bah who needs one
Section 107(a)(1) specifically allows the copies made in the course of normal use of software, e.g. transient copies in memory or the copy on a hard drive made by installing it, so that users do not need additional permission or negotiation with the copyright holder after they buy a copy and bring it home. In other words, the entire EULA thing is based on a deception.
Now, if you had to sign some document agreeing to certain restrictions before you could get it, say at the store and then they'd bring a copy out from around back, that would be legally binding. But that isn't what happens. Instead, you buy a copy at the store, and only when you first go to actually use it are you asked to "agree" to restrictions. But by that time you already have a lawfully-obtained copy, and by first sale the copyright holder no longer has any say in what happens with it, except if you wanted to make copies that would be infringing without their explicit permission. The copies made by normal installation and use do not count according to section 107(a)(1)!
Use of software doesn't inherently fall under contract law any more than use of lawnmowers or deckchairs does. You buy one and you use it. Sheesh!
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Re:
At the same time, they'd have to find a way to balance these with some of the numerous DMCA provisions that effectively break such provisions as USC Title 17 Section 107(a)(1).
Then again, I'm no lawyer. But my first thought after reading the first two paragraphs of your post? The DMCA will get shoved down Psystar's throat at some point with this argument.
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Of course that's bad news, since a precedent here could help make other EULAs binding.
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Will this be an even more slippery slope?
Me thinks this would be GOOD for their business, full copies of the OS coming off the shelves and real Macs being bought once the user decides they want full performance rather than the limited emulated performance. Then again Apple never was one to look at the entire picture were they?
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Looking at it the wrong way?
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