When PsyStar announced they would be offering their own Macintosch clone, pre-installed with Apple’s Mac OS X Leopard, they opened up a whole can of worms. Despite the fact that the company itself was shrouded in mystery and dubiousness, the possible implications of their actions sparkled an interesting debate here on OSNews as well as other discussion venues: can PsyStar and its users just discard Apple’s End User License Agreement for Leopard? Instead of relying on my own limited layman’s understanding of Dutch Common Law, I decided to contact Dutch legal experts, and ask for their opinions on Apple’s EULA, and EULAs in general. Please note that whatever is said below is based on the information given by Dutch legal experts with proper credentials. I’m not talking about uncle Jim who has a brother-in-law who happens to be married to a retired lawyer. The information below comes from active Dutch lawyers, and consequently, are only applicable in The Netherlands.
Sources
In The Netherlands, it is quite common to have ‘legal insurance’ (by lack of a better term). It’s called rechtsbijstandverzekering, which means something along the lines of ‘justice assistance insurance’. This insurance guarantees that you will be given legal assistance in the form of funds, legal experts, and/or lawyers whenever necessary (granted the case in question falls within the scope of the insurance). I have fairly extensive legal insurance, which also grants me the right to ask for the opinions of legal experts even when there is no case. In other words, I can bug legal experts for free with trivial questions. This is source number one for my findings below, and they remain anonymous.
Source number two is Arnoud Engelfriet, a Dutch internet lawyer and ICT legal expert. His weblog Ius mentis details and explains various technology-related legal issues – a wealth of information on all sorts of legal issues we commonly discuss on OSNews. I have included several links to his findings in this article, even though they are written in Dutch. I would like to thank Arnoud for his detailed and easy-to-understand articles on Dutch technology-related legal issues. His information has been invaluable for this article.
The dreadful EULA
First, let me explain what an EULA actually is. The End User License Agreement details how you may use the software it applies to. When you go to the store to buy Super Awesome Garden Designer 8.0 Ultimate Edition, you do not actually buy the software in question – you buy the right to use said software. Software falls under copyright law, and as such, the author must grant you the right to use that software – and for that right, you pay money.
In The Netherlands, an EULA constitutes as a contract, and as such, you need to treat an EULA according to Contract Law. According to Engelfriet, this means there are four important steps in the process of establishing the legal power of an EULA: the formation of the contract, the offering of the contract, nullification of terms in the contract, and possible interference of other, possibly higher laws. Let’s start at the beginning.
Formation
For a contract to actually be a contract in the first place, there needs to be a party offering something, and a party accepting that offer. In the case of software, the offered something is the right to use that software. If you acquire software via legal means, you technically don’t need an EULA at all.
Software distributors solved this issue by forcing you to agree or disagree with the EULA during the installation process, before you can actually use the software – disagreement terminates the installation procedure, meaning you can’t use the software. According to Engelfriet, this is a legally sound construction in The Netherlands, as the distributor is not legally obliged to offer you a choice between the terms of the EULA, or the normal user rights regarding software as defined by article 45j and 45k of Dutch copyright Law (you are allowed to run software on one machine, and you are allowed to make a backup).
So, a software distributor may force you to agree or disagree with the EULA, even of if disagreement means you can no longer use that software. This seems awkward, and brings us to step two.
Offering
According to the anonymous source, the terms of an EULA are the same for all customers, and as such, they legally constitute as ‘algemene voorwaarden‘ (conditions/terms of use). Engelfriet agrees with this position. However, for conditions of use to be valid in The Netherlands, they have to meet certain criteria.
The first criterion is that the conditions of use must be presented prior or during the making of the agreement; in case of software bought in retail stores, it would be easy to argue the agreement is made during the actual purchase, which would mean that if an EULA is not presented then, it would be invalid.
However, there is a catch. To make sure that conditions of use (think: “all customers must wear a pink hat while in this store”) do not have to be specifically presented to each user, Dutch law states that telling a user that the conditions of use can be found at location xyz, without specifically stating the conditions themselves, is also a valid way of presenting conditions of use, regardless of whether the user actively agrees with the conditions or not. In the case of an electronic sale, there is an extra requirement (besides presenting them electronically): the user must have the ability to save the conditions of use (to a file).
The second criterion states that the conditions of use must be presented in the right way. As Engelfriet explains:
The main rule is that you should get a piece of paper on which the EULA can be found. When an EULA is only presented on-screen, it constitutes as an electronic agreement. Law then states that the EULA must be presented in such a way that it can be saved so that it is accessible at a later time. A .pdf or .doc file included in the zipfile satisfies this demand.
This last demand is crucial. The ability to copy/paste the text into a separate file does not satisfy this demand, as it requires too much effort on the user’s end. If there is no straightforward way to reread the EULA at a later date, it is invalid.
Nullification
Because EULAs are conditions of use, the conditions in them may not be unreasonable. Engelfriet notes that “strict” does not mean “unreasonable”. In other words, something like restrictions upon on how many computers you may use software is not unreasonable – it is just strict. As the user, you will have to prove that the conditions in the EULA are unreasonable.
In addition, there is a list of prohibited conditions. A condition in the EULA that is prohibited can be nullified. Engelfriet: “Think of something like dismissing liability or a condition that only a Californian judge may decide over a disagreement.” This brings me to the Apple Mac OS X EULA that started this whole debate in the first place.
The Mac OS X EULA states:
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.
Is this infamous restriction unreasonable, and therefore can it be nullified? The anonymous source doesn’t think so:
The EULA specifically states that the software must be installed on an Apple computer, this is logical because it allows the software to function optimally. If you install the software on a non-Apple computer, there will be a large chance it will not function optimally. The distributor wants to prevent this by stating the software may only be installed on an Apple computer.
In other words, the infamous condition 2A cannot be nullified because it does not seem to be unreasonable at all.
Interference
The final point deals with how other laws might interfere with conditions in an EULA. Dutch law states that you are allowed to make a backup copy of your software – no matter what an EULA might say. Engelfriet does claim that such cases are rare.
Oooh what does this button do?
Is clicking “I agree” on a computer a legally binding way to engage in a contract? This was something I personally struggled with, almost at a moral level. I simply found it preposterous that clicking “I agree” had the same value as actually signing a contract in person with my autograph. Seeing just about any EULA uses this method, I also posed the following question to the anonymous legal expert: is clicking “I agree” similar to signing with an autograph?
Next, you asked if the “I agree” button is similar to an autograph. Via both means, you agree to something. Via the “I agree” button you agree with the conditions of use before you can use the software. So this is binding too, since you may view the conditions of use prior to using the software.
In the comments to the EULA article Engelfriet agrees with this notion, which leads to two legal experts agreeing on this matter.
Conclusion
The above means that assuming the distributor points me towards the EULA prior or during the sale, the EULA I agree with by clicking “I agree” is actually a valid contract according to Dutch Contract Law. The distributor can point me towards that EULA in several ways, for instance by including a notice on the box that says “The use of this software is governed by the rules put forth in the EULA. You can find the EULA at [internet address].” another possibility is to print the EULA on the box. The ability to view the EULA at a later date is crucial.
Effectively, if PsyStar was a Dutch company, Apple would have legs to stand on to legally force them to stop distributing Mac OS X Leopard pre-installed.
On a personal note, the findings of this article severely contradict my own opinions and interpretations of the law, which I posed in the comments section of the PsyStar article. It was my firm belief that an EULA could not be valid if it was not explicitly offered prior or during sale. What I did not realise, however (being a layman and all), was that the terms in an EULA are analogous to conditions of use – which is crucial for the validity of the EULA.
Rests me to repeat that the above is only valid in The Netherlands, and is based on the interpretation of the law by only two different legal experts – it could very well be that there are other experts that disagree with these interpretations. Such is the problem with the law.
If I were you, I’d get out that copy of Super Awesome Garden Designer 8.0 Ultimate Edition. Who knows what its EULA might say.
If you would like to see your thoughts or experiences with technology published, please consider writing an article for OSNews.
Don’t EULAs only apply to end users? (I remember seeing some case referring to that, but I can’t find it now)
Since Psystar is selling the software (and hardware) on, surely the EULA would not apply to them.
Secondly, the article skimmed over the definition of “Apple-labelled computer”, assuming it meant “made by apple”. Could I not satisfy this requirement simply by scrawling “apple” on a post-it or using one of the stickers that came with my iPod?
Additionally, the legal systems and practices in continental Europe tend to be significantly different, influenced by Roman Law, as opposed to English Law (the system which most influences US Law).
Since English Law tends to take a more literal approach to the interpretation of statutes and contracts, I still find it unlikely that EULAs would be able to satisfy English-based contract law.
Psystar was sold the software, so at the point that they install they are the end user, when they resell it the end user changes. If this were not the case then I could violate a EULA as much as I wanted provided I intended to sell the machine to someone else after a couple of years.
Adding Apple to the case would be a violation of trademark law.
I would suggest that a loophole is in the “agree” section. If the software can be extracted from the install media, and installed on hardware without using the standard installer, then the prompt to agree will never be shown. The article states that “If you acquire software via legal means, you technically don’t need an EULA at all”. I would be interested in knowing whether this would be valid.
Surely it’s only a violation of trademark law if I’m using “apple” as a trademark?
If I write “apple” on my own personal computer, or even if I stick an iPod-supplied Apple sticker on my Thinkpad, then surely I am not using “apple” as a trademark, since I am not trading?
Similarly, if PsyStar wrote “apple” on a sicky-label and put it on the inside of the case and told nobody, they would not be using “apple” as a trademark, since it is invisible to anybody until long after purchase(the trade)?
I would like to hear more opinions on this as the specific method mentioned is actually used by some of the OSx86 guys to install Leopard. They use a shareware app named Pacifist that extracts and installs the packages directly from the DVD without their ever being a license to accept.
Now this shareware is for Mac OS X, so it might be questionable how they already have a working copy installed (except in the case of using a real mac to extract the files and then installing the drive in a generic PC).
But, a clever coder could write an open source version that runs on Linux. Now imagine using a Linux live CD tailored specifically for installing OS X on PCs. The user is just prompted to insert their retail Leopard DVD after the live CD has finished the groundwork like partitioning the hard drive and installing the bootloader.
Because of people like you is that Linux dos not get the support of the hardware and software manufacturers. Always trying to steal or rip-off something.
If you Linux guys like OS X so much, then, have your people write code that resembles it. By the way, I remember reading a long while ago in the Gnome web site, that their intent was to create a desktop that would look like Apple. Go figure!
I specifically mentioned retail copy of Leopard, implying that it was paid for and not pirated. Please don’t always assume Linux user == pirate.
An “Apple-labelled computer” would be a computer labelled by Apple. Not by you.
Put a sticker on your car, and see if it makes it an Apple car. Or an “Apple-labelled car”.
regarding Psystar’s status, i think the problem with calling them something other than an end-user is that their status is partly what’s at issue here.
simply reselling something you bought doesn’t mean you’re not an end user. that just means you’re having a yard sale.
i think Psystar is trying to call themselves an OEM, and Apple would certainly argue that. i would say that since the terms of the EULA on their face forbid Psystar from being an OEM (validity of those terms notwithstanding), they kind of [have to be] an end user until it’s cleared up whether or not they’re allowed to be anything else.
In France you can’t “force sell” products together (it’s purely illegal even if Microsoft is doing it for years with Windows hehe).
So, in theory, you can buy Mac OSX and install it on whatever computer you want, Apple or not, mainly because that clause imply if you buy OSX you must have or buy an Apple computer to use it which is illegal over here.
That’s the way I understand it.
The same goes if I already have a Mac OSX license, and want to buy a Mac, I should be able to buy it without OSX.
Edited 2008-04-25 16:18 UTC
Yep, there is that law prohibiting joint sales. Probably one of the least enforced in France. Just try to buy a computer without Windows installed. Tell the seller it is illegal to force you to buy Windows (or OS X for that matter).
I tried. I even found a seller who accepted to take out the hard disk and put another one without Windows. But the computer without Windows ended costing a lot more than the computer with Windows.
Well this depends on how MacOSX and the Mac are marketed. If a Mac is sold as a “personal computer”, then you have a point. If otherwise is marketed as a platform, a combination of both hardware and software, then your assumptions are not valid. In Italy for example, Macintoshes were always marketed as platforms and as such the idea of buying a mac without osx was never considered viable or legal. This is reflected on pricing as well. Macosx is priced relatively low (for the low numbers compared to windows counterparts) because part of the developement costs were already heavily charged on the original mac purchase.
Australia has the same rules. We have white box PC sellers in almost every suburb and PCs are always available with out an OS. White box PCs are also far cheaper than mainstream brands.
So, if I want cereal, but I don’t want the box, could I discard it and demand the supermarket charge me less because I’m not buying the box? What about if I go to a car dealership and say, “Hey, I don’t want your tires – give me a cheaper car sans tires”.
Tying (or “force-sell”) isn’t subject literal application on every case. It is probably more for unreasonable cases, where products tied together are unrelated – like, when you buy a car, they throw in a fridge for you. Or a bookstore forced to buy unwanted books to stock up on bestsellers.
I’d be hard pressed to convince a court that Mac OS X is unreasonably tied to Apple-labelled computers. And even in civil law countries, judges are mindful of the precedence that will be set – if an OS and a computer is unreasonably bundled, maybe OSes would be forced to strip out, say, printer drivers?
Thom, I’m glad you took the time to actually seek advice from legal professionals. Too often laymen and tech minded people don’t bother to find out what the law actually states, or how it is commonly interpreted by the courts, but operate on how they feel what the law ought to be. As bad as that attitude is when posting on anonymous internet discussions, it’s infinitely worse when there is a possibility that you might actually wind up in court.
Ja. Het werd tentoongesteld in de bodem van een afsluitbare rolcontainer vastzit in een leegstaande toilet met een bordje op de deur te zeggen: “Pas op voor de Leopard.”
There is actually a decision by the Finnish Supreme Court on EULAs. Their view was that when a consumer goes to a store and buys a product, they buy it and not license. And as such all EULAs are categorically not valid here. Though we need to remember that you can’t make copies etc of your programs as they are nevertheless protected by copyright.
That’s what I have been saying also but I am not exactly 100% sure anymore. It is indeed true that if EULA is in conflict with any of the finnish laws, those finnish laws override anything in the EULA ie. you are indeed allowed to make copies of software for personal/backup use, you are allowed to resell your copy of the software as long as you destroy all backups you may have, and so forth. But I started to think a few days ago while reading stuff that EULAs might actually be valid to a degree. I just don’t know what kinds of things are allowed there. It seems that mostly any clause that somehow restricts one’s freedom is actually invalid so there wouldn’t be much left anyway that could be specified in an EULA.
you can’t speak of dutch “common law” – common law is the british case law and the derived law systems. iirc the dutch burgerlijk wetboek has been inspired by the napoleonic code civil which is heavily influenced by roman law.
psystar should move over to europe. i’m quite sure they’d be safe from apple’s lawyers wrath in all member states of the european union because coupling two products together like this is illegal according to european competition and consumer laws.
ed: so the eula would even been illegal if the buyer signed it at the purchase.
Edited 2008-04-25 17:13 UTC
The best translation I could find of burgerlijk recht (=civil law) was common law. Adding the adjective “Dutch” makes it clear it’s not English Common Law I’m speaking of.
But yes, the term is troublesome.
why not just civil law?
European courts are very shy on restrictions beyond copyright. Imagine if a cookbook maker said those recipes were only “licensed” for parties, in your home, of under 10 people… it’s a BOOK silly. Why that was ever allowed. As long as you are not making copies of the shiny disk then you should be good.
I’m sure they’ve already secured a box of legally bought OSX disks from Apple. Under European rules, they can make the programs on the shiny disk do whatever they want, they are supplying one legally bought disc per machine so they are not violating copyright. It’s just that US copyrights have FAR too much power over software you can “rip” your CDs legally to iPods but you can’t hack your legally purchased OS DVD to run on 1 machine of your choosing. See how silly that is!
It’s just that US copyrights have FAR too much power over software you can “rip” your CDs legally to iPods but you can’t hack your legally purchased OS DVD to run on 1 machine of your choosing. See how silly that is!
I am a layman ( girl actually, silly english :O ) when it comes to laws but I have understood that here it is legal to hack, burn or whatever you may wish the copy of software you have bought as long as you don’t break the copyright law by sharing those hacks or modified copies of the software. So atleast here it should be totally legal to install OSX on any computer you own, I just doubt you would be able to sell computers with hacked OSX pre-installed. You _could_ sell a computer and non-modified OSX together along with instructions on how to hack it yourself though.
This would be the case in Germany, too, as far as I do understand it. The legal term is “private backup copy” (private Sicherheitskopie) which allows you to duplicate, for example, installation CDs / DVDs for your individual use; regarding the intended use of these installation media, i. e. the installing process itself, you are required to have the license to do it (usually a shiny sticker on the back or the bottom of your computer) with the respective registration code. You even may give the duplicated media to someone else, as long as it is an 1:1 copy (no modifications), the person given the copy will of course need to have a license, too.
Well, I think so, too. In both regards.
This could be possible. The only situation interesting would be if it’s allowed to sell these instructions (“how to do something that is not intended and may be illegal”), but you can surely sell a PC, a set of Mac OS X installation media, and give some sheets of printed paper as a “thank you present”. 🙂
Someone mentioned Finland. I know EULAs were tested in Danish law too, and rejected because they had to be presented prior to purchase and because mouse click are not binding signatures in Danish contract law.
I think I remember them being rejected in German supreme court too, and several other continental EU countries, but I don’t have the reference.
I think mabhatter’s example is awsome. Last time we discussed this I tried to make similar examples. http://www.osnews.com/permalink?309697
Also what if they put OSX on the machine w/o clicking I agree? Maybe “I Agree” is the first thing that pops up when you boot it?
Thom, your guys seem not to have addressed some issues that would for sure come up in Anglo Saxon law, which is not about whether Eulas can be valid, but whether these particular provisions can be valid, in a Eula or not.
1) Is it an unlawful linked sale? The US competition law may be stricter than UK and other common law jurisdictions, but I’d like to see a clear legal opinion on this. The case mentioned in the Guardian lately was Data General 1984. Generally you cannot force people to buy A in order to get B, and you specifically cannot do it if you sell A independently but then forbid them to use it on anything but B.
2) Is it valid as a post sale restriction on use? Post sale restrictions on use are sometimes possible where public safety is an issue, but the question is whether installing on the identical set of components bought from a different supplier can be justified. This may be relevant to point 1 also.
For sure you would not get away with selling an electricity socket and along with it a “license” saying this could only be used with a certain kind of plug, if bought from the same supplier. Apple will be in a very weak position on this having gone to standard PC components, because the essential difference will not be the components, but where they are bought. I’m very sceptical anyone will get away with saying you can only run software on a set of components bought from me, and not the same components bought from someone else. Ask them this one!
3) Is it really not a sale? Your guys say you do not buy the software. True, you do not either buy the book. But you do buy a copy of it. The law on buying copies is fairly clear: its existed for a long time and has been applied to books and all sorts of printed material, to records, tapes, CDs, DVDs. Now, the law on what you may do in terms of copying in these cases is set by copyright. You can’t copy except as authorized. But the law on what you can do with it is not set by this but by ordinary consumer rights. I doubt any Anglo Saxon court is going to say the supplier can claim its not a purchase of a copy just like a book is purchased, and so, if you don’t violate copyright, they cannot tell you how to use it. Just like they can’t tell you not to read that book in bed.
There is I think a UK case, don’t recall which, where the buyer was held to have bought not licensed. I think there were tax implications. He claimed to have licensed, and lost.
Apple may sue, but I think they’d be wiser not to. They really do not want to get the Commission or the ECJ looking too hard either at Eulas or at post sales restraints on use. Or at linked sales for that matter.
You’re assuming that post-sale restrictions are, by definition, unlawful. But, as I just explained in the article, you actually AGREED to the EULA, so in order to have parts of it nullified, you will need to prove to a judge that those parts are unreasonable, that you are not reasonably capable of fulfilling those obligations. And you’ll have a very hard time doing that, according to my legal experts.
I don’t know about other countries than The Netherlands, since I don’t live there, nor intend to, ever. So, if you want an accurate idea of what it is like in your country – contact a legal expert. That’s all I can give you.
“….you will need to prove to a judge that those parts are unreasonable….”
No, not in the US or the UK or probably Australia etc. You will only have to prove that those clauses are incompatible with either competition law or consumer protection law. In the UK, that will be the Sale of Goods Act and successors, the Competition Act, and also the law on unfair contracts. Unfair in Common Law is not the same as unreasonable in Code Napoleon.
Not a lawyer, but I don’t think it has a hope of flying in the UK – the restraint, that is.
This is the same as claiming one can only use a “brand name” of oil in a “brand name” outboard motor.
If I purchase and I don’t mean lease software I will do what I want with it.
“Apple’s” only recourse is to not honor it’s warranty, not threaten me.
Edited 2008-04-25 20:30 UTC
In the US, this is basically protected by the doctrine of first sale. There is enough precedent to suggest that purchasing software is a sale, not a license, which means that the software vendor has absolutely no recourse over what you do with the software after (respective of copyright laws, of course).
The content holders hate this, of course. They don’t like people being able to sell software they no longer need, they don’t like people being able to sell books they’ve finished reading to used bookstores, and they don’t like people trading console games in at EB Games. All of this robs the content holders of incremental revenue they feel they are entitled to. They’ve tried to undo it, and they will continue to.
But as far as software goes, it is pretty much under the regulation of copyright law in most jursidictions. Copyright law does not come into effect until a protected work is distributed, so regardless of EULAs, the average user in the average free country is able to do whatever the fark they want with software they are legally in posession of, until the point where they touch copyright provisions regarding distribution.
I think the thing that surprised me most from reading the article, at least compared to my experience with Canadian/US law, is that North American laws generally do not permit citizens to “waive” their rights under the law. That is to say, that an EULA, no matter how well written or “reasonable”, cannot coerce an individual into waiving entitlements provided to them. Getting back to my original point about doctrine of first sale, for instance, renders Apple’s restriction against installing on non-Apple hardware invalid. Simply because the existing law says that if you are in legal posession of protected content, you can do whatever you want for personal use (again, subject to copyright law). You could hack OSX to run on a TRS-80 if you wanted, and Apple has no recourse. Though selling that TRS-80 with a hacked version of OSX would most likely violate copyright, since you’ve modified a protected work and are re-distributing it, and that likely touches upon the original issue. But as was pointed out in a previous post, transferring the media to someone else, and providing instructions or directions on how to modify it in order to run on the TRS-80 (or any other platform), would most likely be permissable in the eyes of the law. Once Apple has received remuneration for their content, they no longer determine what you do with it. Whether you resell it or hack it to pieces.
Sadly, though, Apple can bypass fair-use and similar protections by simply implementing some sort of encrypted protection in their software. If they decided to tie OSX into Intel’s trusted computing infrastructure, for instance, to ensure that it only runs on an authorized system, then the DMCA would come into effect (at least for US users) and that bypasses the other provisions consumers have. The anti-circumvention provisions generally trump any other freedoms that consumers might otherwise exercise.
Putting that aside for a moment, EULAs rely on contract law, and software is governed by copyright law. So not only must EULAs conform to the requirements for contract validity if they are to have any effect (for instance, you must be of the age of majority to participate in a contract, which renders EULAs invalid for minors), but even then, the contract cannot force the user to waive entitlements under copyright law. In other words, Apple can’t restrict a legally purchased copy of OSX to Apple platforms any more than a publisher can prevent selling a book to a used book store as a condition of sale. Doctrine of first sale trumps anything they try to work around in the EULA from that aspect (again, excluding the DMCA).
Anyways, just my North American perspective (well, CA/US, I can’t claim experience with Mexican law). I have spoken to legal experts regarding somewhat related issues in the past, including our own in-house corporate counsel, so while I certainly won’t claim to be an authority, I’m not entirely pulling this out of my butt, either…
Just my 2c…
Edited 2008-04-26 06:24 UTC
I liked it how Thom started his piece. This is not some cousin or friend that knows somebody that knows a lawyer, etc.
He very well explained that he was only talking about EULA as it applies to the Netherlands. Now, all of you have your opinions about how it will apply here or there, etc.
My questions to all of you is: Is anyone here trying to speak in legal tones a lawyer in their own country? If you are not, shut up!
In the US most if not all retailers will not let you return software once it has been opened. The EULA isn’t visible on the box and I don’t recall ever seeing any link to a EULA on a software box. I wonder how you can be bound by contract when you can’t agree to the contract until after the product has been opened and thus you are not entitled to a refund in the case you do not agree with it? They have your money one way or another. What does the consumer have? It’s almost bait and switch, you don’t know what the EULA says until it’s too late to get your money back.
“In The Netherlands, an EULA constitutes as a contract, and as such, you need to treat an EULA according to Contract Law.”
“Violating” an EULA is not a criminal offense. There are no criminal statutes nor legislation involved in an EULA (not even copyright) — an EULA is just a civil contract. That is why it is called an end user license AGREEMENT.
So, it is not a crime to make a hackintosh, despite all of the whines from the dissuading Mac fanboys.
I would argue that Dutch contract law (and many other countries) does not make sense, but then again, most *law* does not make common sense.
I would consider being able to only use said software on an Apple computer monopolistic and anti competitive, imagine if Microsoft said you could only use Windows on a MS made machine!!!
For this reason, I consider Apple a greater monopolist than Microsoft, even though it has a smaller market share.
It is quite obvious to me that the laws are made to protect big business, and not the individuals of the state in question, and this is in direct contravention to what a democratic government is elected for! Big business pays big money to buy it’s legal way, let’s consider the OOXML debacle. Those decisions were made by heads of government business related departments. Odd?
The sooner businesses are removed from the ability to influence governments and thus laws in any way, the better imho.
As an example, I recently posed this very question to Phase One in regards to Capture One pro. As far as they are concerned, I am not allowed to sell my copy of Capture One pro to another individual, i.e. license is not transferable. How unreasonable is this? It is a severe restriction of trade for starters. Why is software the ONLY industry that is not effectively governed by consumer bodies? I mean, let’s imagine car manufacturer XYX said you can’t resell their car!!! Why should software be any different?
Software laws must be introduced, and it must be policed far heavier than it is now. Software laws MUST be severely evened up to empower the consumer.
Period.
Dave
Thanks Thom, it was an interesting read and confirmed my earlier suspicions (about which we had a nice discussion in the other thread
).
As for some other users’ complaints about Apple’s EULA stating you must use the software on an Apple branded computer (and please stop the childish ‘I put an Apple sticker on my PC, now it’s Apple branded!’ nonsence) being a tie-in sale, that’s really a rather non-discussion. Think of it this way: if you buy a car, do you demand its software to be sold separatly, or being upgradable separatly? If you buy a navigation device, or a TV, or a mobile phone, a DVD player and any of all the other embedded devices out there, do you complain then about lack of choice etc.? Of course not. And an OS is not that different. Apple sells hardware as its core business. To use that hardware, you need an OS. They also sell that. In fact, if you buy a new Apple, you get the OS for free. It’s just that when you want an upgrade, you pay, and that’s for Apple to decide. There’s probably no EULA restriction in the upgrade software for, e.g., my wireless router, but then again, it doesn’t run on any other device than that specific brand of wireless router.
Apple’s business strategy is selling Apple hardware. Their software is just something resulting from that. They do not want you to use their software, they want you to buy their hardware. That’s why they put restrictions in their EULA for use of that software. They are perfectly entitled to do so, and though it may be inconvenient for us end users, that’s the way the law works.
An EULA is not a law — it is a civil contract.
There is no statute that says a government must enforce restrictions that appear in a private contract, such as an EULA. However, one party of the contract can sue the other party.
So, it is not a criminal offense to use a legally purchased copy of OS X to make a hackentosh.
True, it’s not a criminal offence. However, the law says a lot about civil contracts, and resulting from that is that what Apple does is perfectly legal.
An EULA might be a valid legal agreement, however, that does not mean the principle “licensed, not sold” mean.
Purchasing software in a store is a purchasing agreement “koopovereenkomst”, as meant by the “Burgerlijk Wetboek”. If your invoice (legal proof of the “koopovereenkomst”) states you bought a MS Office, you have bought (a copy of) MS Office, and not a right to use MS Office.
The findings of the Finish court are not contradictory to what has been written in this article. I’m confident a Dutch court can rule the same, and I’m condifident conditions on the use of software can be made in Finland.
Don’t know much about Dutch law, but it sounds like you are referring to laws that apply to all purchases, regardless of any stipulations contained in the separate, private contract that is an EULA.
So, given that I bought a copy of MS Office and not the right to use it, what law prevents my right to use it?
Correct, all purchases, regardless wether they are about software, cars or food are subject to the terms in the Burgerlijk Wetboek. They regulate the rights of the buyer (i.e. right of warranty) and the rights of the seller (i.e. right to get paid in a reasonable amount of time).
An invoice is a proof that a purchase agreement between two parties exists, and it states the goods that have been purchased. So, if the invoice states “MS Office”, you have purchased (a copy of) MS Office.
No law prevents you to use it. Just as no law prevents you reading a book, no law prevents you using software.
However, the software won’t install without that you enter in to an agreement, which says you shall use the software only under some conditions. As soon as you click “accept” there exists an agreement between you and Microsoft.
Now back to the purchase agreement. It has to be clear from the start, that you will be bound to usage limitations by means of an EULA. Otherwise you don’t know what you buy. So, if it is written on the box that an EULA needs to be accepted, the buyer is fully informed about what he is going to purchase, he knows that he buys a product that will require him to accept an agreement.
If there is nothing on the box, the buyer will get an unexpected surprise when he tries to use the copy of the software he bought. Then he can either nullify the purchase agreement and get his money back, or force the seller to comply to his obligation in the purchase agreement: Supply buyer the product he has been paid for (which would be without EULA in such a case).