It appears that Apple is not just going after Psystar when it comes to running Mac OS X on non-Apple branded computers. Wired’s gadget blog was running a story, accompanied by a video, demonstrating how to install Mac OS X on a non-Apple netbook. After Apple contacted Wired, the website took down the video.
There was some initial confusion regarding Apple’s actions, as the writer of the article accidentally misinterpreted Apple’s actions, stating on his Twitter feed that Apple was suing Wired. This turned out to be wrong – Apple only contacted Wired via a cease-and-desist letter. The video has been removed, but the article itself remains available. A representative said that Wired is currently reviewing whether or not to take down the article as well.
The article acknowledges that the procedure might violate Apple’s EULA. A disclaimer reads: “Disclaimer: The following process potentially violates Apple’s End User License Agreement for Mac OS X. Please ensure you own a copy of Mac OS X Leopard, if you wish to follow the procedure.” The article links to torrent site The Pirate Bay as well.
As always, Apple refused to comment on the case. Wired’s editor-in-chief Evan Hansen told ZDNet “we made a determination that the video… We’re more comfortable taking down the video. [Wired tries] to default to the most conservative position we can in terms of removing content… But we don’t want to pull content [needlessly].”
i find it interesting that when Apple “asks” a website/company/person to do something it is usualy done right away with little or no reported push back (Psystar excluded). Unlike MS who has a hard time getting anyhting like that removed even with all their power and money.
So it makes me think 1 of 2 things; 1, people/companies have a great respect for apple and apple asks in a way that is well tollerated by whomever they are contacting.
or 2, Apple’s “please remove this” letter must be so intimidating only those with no imidiate family or friends (nothing to loose) would dare stand up to them.
I can’t recall the few cases where the second option has been talked about, but i recall one instance of a developer (i think, i wish i could find the link to the story) being called at like 3am with a cease and desist in a very threatening tone by Apple’s lawyers. If anyone remembers that article please let me know, its going ot bug the heck out of me till i remember. it was a few years back.
I’d guess that when Apple “asks” there’s a (not so) subtle hint that any lack of cooperation will lead to sudden shortage of review hardware and press passes to Apple events. And that’s before they bring out the heavy legal threats.
“Unlike MS who has a hard time getting anyhting like that removed even with all their power and money. ”
You are erecting straw men here. Are you saying MS is having a hard time preventing people installing their software on 3rd party hardware? MS URGES you to install their soft on every damn hardware, including Apple’s, so clearly, you are making something up.
it was a bit of an apples (no pun intended) and oranges comparison. i only meant that when MS wants any kind of story pulled its much harder for them to go about it, even with their vast legal team. but apple can get damn near anything removed from the web without a trace, even the google seach cache, with little effort. its a bit scary really.
I’m not normally one to defend MS, but I can’t actually think of any examples of them trying to get articles etc pulled. That’s much more Apple’s territory, witness the lengths they go to about product information leaks.
Any other company can’t do business that way. What they are saying is they are loosing money on the software, forcing you to purchase their overpriced hardware. Kind of a bait and switch scheme. Kind of like saying I have to use (brand name) marine oil in this outboard motor or we won’t warranty it. Pffsst.
They sold the software and it should be priced in a fair market value. Otherwise it is a scheme!
Edited 2009-01-14 22:01 UTC
From Apple’s POV the hardware and software are inseparable, at least when it comes to MacOSX. So the price is quite fair if you follow their rules. They don’t allow running on third-party hardware, that’s all, there’s no scheme.
If you buy a legal copy of MacOSX, usually on CD/DVD, Apple cannot enforce to buy an Apple computer too, even if they do so in their EULA. You may run the Mac OSX on the PC you want or already own, if possible, perhaps by means of additional hardware or software. Feel free!
Or has anybody heard of an book author who allows the buyer only to read the book in the author’s garden?
An EULA is somehow comparable to German AGB’s (Allgemeine Gesch~A¤ftsbedingungen). If an AGB is too restrictive it can be discarded by justice.
“EULA May not be valid”
Deeply embarassed.
“EULA need not to be valid”?
6th class English. It’s late night here in Germany.
On the other hand, it of course must be valid in justice. If not, you needn’t care about obviusly invalid paragraphs of the EULA. As said in the first post
Too bad that POV is inconsistent with reality.
Apple didn’t sell any software. They sold a license to use software. That’s a distinct difference.
No. You need to read Softman again, carefully. There are two independent contracts. In the first contract, you bought a copy of the software. Not a box, not a CD, a copy of the software. You have the right to resell this, repackage this, break it up (the software) into components and resell them piecemeal. To do this you will not have to enter into the EULA.
The second contract is the the EULA which you enter into when you click through. Its independent of the sales contract. This may or may not be binding, in particular, the clause which forbids you to install on non-Apple hardware may or may not be finding. This also may or may not be a license.
But the sale by which you acquired your copy was a sale, it was not a license. Read Softman.
Of course they can. And they do. WGA is, in fact, nothing else.
Wired clearly breaches the EULA here, even on a large scale. Apple can argue that Wired even encourages others to do the same, which results in direct financial loss for Apple. Which takes us deep into “Apple vs. Psystar” territory.
WGA limits your choice of hardware vendors? Since when?
Yeah, but they DID install, so they DID enter into a license, thus they ARE bound to its terms which in return means that they DID breach it by installing the OS to non-Apple hardware.
And unless a judge rules that Apple can’t limit their software to using it on only their hardware, Wired has not only breached the license but also openly admitted to doing so by posting that article.
No it doesn’t. But it is a limitation to what you can do with the software you bought. Or licensed.
No it doesn’t. But it is a limitation to what you can do with the software you bought. Or licensed. [/q]
Only if you see “inability to do something that’s already against copyright law” as a limitation. Hate to break it to you, but Microsoft has a clearly-defined legal right to prevent illegal copying of their OS.
But last I checked, there’s nothing in copyright law that says that a software developer has the right to limit users to computers with specific branding. Apple’s limitations are much, much more draconian and arbitrary.
Thanks to the Admin for removing my wrong English correction post.
So it would not be okay to agree for continueing an OSX install on a non-Apple PC. Instead you should request Apple to deliver an OSX without this paragraph replacing the old one within a fair fixed time and enforce this in court if necessary. The restrictive part of the EULA will probably be discarded.
But for my own, I’m not that interested in OSX. In late 1994 I bought an Apple Performa 475 for running ASH’s great Atari emulator MagicMac and liked the MacOS Classic, too. The Apple hardware then also was better than the one of a comparable 80486 PC (better bus speed, SCSI port). But now, Apple hardware is not better.
Wired are not allowing or facilitating others to do so.
Wired is a publication, it is reporting and demonstrating how easily it may be done. Educators, artists and reporters have many immunities and dispensations which allow them to function in the public interest and ignore laws.
In education this is called academic freedom, it allows for normal copyright law to be ignored, taboo subjects to be broached and our curiousity to be indulged.
Artists have artistic license, in which they distort, hide or fabricate facts for emotional or dramatic effect.
Reporters/bloggers work under something called ‘freedom of the press’. If you remove that, as apple is doing; then you loose diversity of opinion or ideas and hence progress.
“Just shows how crooked Apple is.”, greedy too.
Wired has never signed the Eula. Never clicked through. Never entered into the contract. No obligations under it. Wake up. Read Softman. Again.
“From Apple’s POV ”
You mean their team of lawyers.
I’m actually disappointed that “wired” would honor that cease and desist letter. I believe this calls into question basic constitutional rights. I believe this calls into question basic freedom of speech rights.
This very thing stifles innovation.
“Wired” may not have the financial means to deflect an aggressive legal attack.
Attacking Wired for this will probably do further damage to Apple’s already declining warm fuzzy image.
Hackintosh instructions are out there. A guy in my LUG recently built one and loves it (to the point where he’s ditched Linux and declared it all but dead as a major desktop player).
Nothing Apple can do can stop Hackintoshes.
Nothing any software manufacturer can do can stop “piracy.”
Nothing the movie studios do can stop “piracy” of their movies.
Nothing the record companies do can stop “piracy” of music.
It is imply not possible to control bits, bytes, analog, or print data.
(Sorry, know this is obvious to most of you but at this point, it’s a law of online physics companies really need to accept and adapt to).
Nor do I think Apple has much to fear from the proverbial Hackintosh as people who buy Macs will typically buy more Macs.
Apple can do what it wants with its legal threats and intimidation but it can’t un-ring a bell. When Apple decided to move to the ubiquitous Intel chipset back in 2006, it opened itself up to hackers porting the coveted OS-X software to ordinary Wintel PC’s. If Apple thinks it will stop these determined hackers from using OS-X on ordinary PCs it is mistaken. Where there’s a will there’s a way. Even if Apple resorts to dongles, draconian activation schemes or custom chips on its motherboards to ensure compliance with its EULA hackers will eventually bypass it. My hope is that Apple will simply cede that people are interested in OS-X and release it to retail channels for use on any ordinary PC. If Windows 7 is any indication, Microsoft should be very afraid if this occurs.
Really? Windows 7 has so far got VERY positive feedback rom just about everybody who tries it. Even a beta stage, it handily outperforms both Vista (not exactly hard) and XP (an actual improvement). All the good stuff with Vista was kept and most the rough edges have been smoothed and the whole thing has been refined. I’m no MS fanboy (I’m actually a Linux person), but it SOUNDS like, even it Beta form, Windows 7 is the OS that Vista should have been. Assuming MS doesn’t manage to completely screw stuff up in between now and whenever Windows 7 goes gold (which is not TOO unlikely), it’s Apple that needs to be worried, not Microsoft.
I’ve been hearing a lot of positive responses as well, from different sites concerning Windows 7.
Apple shines in its their ability to adapt in areas Microsoft as of yet, is not able to do. Apple is a Multimedia Company putting out some very good products, such as the I-Phone as an example.
But as for Window’s 7? The success or failure of the OS is going to be if Microsoft has learned from the mistakes it has made when they created Windows Vista.
And so far it looks like Microsoft has.
Meh. I tried it, and it felt too much like what it is… Vista version 2. The way all the system configuration menus and windows have been changed, moved around, screwed up, etc. is just a mess. I thought Windows 7 would finally fix the mess they made with Vista, but the beta didn’t impress me at all. That said, Vista was a disaster in just about every way imaginable, and Win7 does appear to at least be alleviating and/or fixing some problems in its much-hated parent.
Really though, anything will get glowing reviews if what it’s being compared to is something like Vista, and I’ll leave it at that.
“Really though, anything will get glowing reviews if what it’s being compared to is something like Vista, and I’ll leave it at that.”
maybe that’s the strategy: come up with something really bad and then put everything into selling the mediocre product which will look like sparkling diamonds in comparison.
This would be the death of Macs, because very few people would bother to install another OS on a computer that already came with an OS. Apple understands perfectly that the OS needs to come pre-installed, pre-configured, and ready to go from the first time you turn the computer on.
Why would it be the death of Macs? Macs would be as competitive as they are now. The hardware would still be exquisitely selected, far better quality than the average beige box, and perfectly integrated with the OS, which is something no migrating of what in effect would be a Porsche engine into an old Lada could possibly achieve.
Everyone would just carry on buying Macs.
Right?
I hate to inform you but all Apple hardware is all low/medium quality no-brand generic PC hardware. Most of it is way below the quality you will find in a quality custom built machine. I can assure you my home built PC has much better quality parts than any Mac (Asus MB, Antec Sonata case, Corsair RAM, Channelwell PSU etc).
*BRUAHHHHAHAHAH*
That’s obvious, that for the same money you can build a much higher quality machine than Mac. But that’s true of of almost any name-brand computer – Dell, Compaq, Gateway, etc.
Quite interesting when a fairly mainstream publication like Wired actually tells you how, and links to the Pirate Bay where you can get a hacked copy of the OS. The video may be down, but the recipe and links still seem to be up.
Apple is going to lose this one. Whether it loses in court or not, the proverbial horse has now left the stable and is running wild and free over the moors.
Do you think Apple’s lawyers are too stupid to make their License bulletproof? This is, again, covered in the EULA as “You own the media on which the Apple Software is recorded but Apple and/or Apple’s licensor(s) retain ownership of the Apple Software itself.” By installing OSX on whatever machine, you have to agree to that license. There is no way around it as long as the license is not invalidated by law.
Oh, please! Apple hardware is EXACTLY the same as in the beige box. They use Intel CPUs, nvidia chipsets, ATI graphics cards, just to name a few. Wired and Psystar would not have been able to run OSX on non-Apple hardware if it were any different.
Why would they need to make the EULA bulletproof? All they need to do, is to have enough lawyers to make a breach too expensive. The EULA is certainly not valid in my country (a contract “signed” by opening a box I’ve bought? I don’t think so), but Apple still sells their software and their computers here.
That may or may not be. But it sure is valid in the US of A, or they wouldn’t have bothered writing it in the first place, would they?
And if it is, Apple may not be able to sue you (or threat to do so) if you install OSX to a “Hackintosh” but they sure can do so to someone who does it in the US.
(Which is true for both the Wired staff and Psystar)
“Why would they need to make the EULA bulletproof? All they need to do, is to have enough lawyers to make a breach too expensive. The EULA is certainly not valid in my country (a contract “signed” by opening a box I’ve bought? I don’t think so), but Apple still sells their software and their computers here.”
Well, you do not agree to the EULA by opening the box. You agree to the EULA when you click the Accept or OK button on the license dialog when the question asks you to. That has already been deemed enforceable in many countries, the whole click through signing.
You need to reread Softman, carefully. You buy a copy, and until you install, you have not entered into a license.
And I guess irony about Porsche engines is wasted on OSAlert….
Apple’s EULAs aren’t “bulletproof”, they are actually made on-the-cheap.
My mother’s iPod came with one of those EULAs on the iTunes software – which was actually just the EULA for Mac OS X! It even said so at the top, and told me that you couldn’t install the software on a non-Apple computer!
And we all heard of when Apple used the exact same license in the Safari For Windows installer, too.
To this day, I’m not bound by any iTunes software license agreement, because I did not recieve a copy of this “agreement” nor was asked to consent to anything. If Apple can be that lazy and negligent as to reuse EULAs, then you can bet your derriere that those EULAs can’t be fully legal or bulletproof.
hmmm…
so “wired” sold out like crichton? what else is new?
as for apple — how many times has it declared itself a friend of open source regarding music & codes? how many times has it actually evidenced anything in keeping with its precepts?
remember darwin? how apple worked hard to kill be? or how jobs hijacked open sourced bsd & copyrighted it as next-os & then mac x???
shame on apple!
KIHARA
Here’s that irony again…
The Apple web page with their instructions (no video) on how to install XP and other operating systems on their computers:
http://docs.info.apple.com/article.html?path=Mac/10.5/en/11889.html
So Apple really believes their software and hardware are a complete inseparable package?
“So Apple really believes their software and hardware are a complete inseparable package?”
That is how Apple markets it. It has always been that to get the software you had to buy a Mac. Now they have Apple stores, and as a convenience sell OS X in there for you to upgrade. Whether the items can be separated or not is irrelevant, as the product itself has always been marketed as a bundle.
Should Apple lose this one, they can correct it easily. All they need to do is stop selling OS X in the Apple stores, and force you to order online using your Mac serial number. Totally out of bounds, IMO, but it would get them back to selling it with the hardware alone.
The Apple operating system is available as a stand-alone product at a large variety of retail stores. It’s not bundled with hardware, it’s not an upgrade package only, it’s not available at Apple stores exclusively, and purchases are not limited to owners of Mac computers.
Agree that’s what Apple should do if they’re firmly set on the idea that MacOS can ONLY be used with Mac hardware. Until then…
“Agree that’s what Apple should do if they’re firmly set on the idea that MacOS can ONLY be used with Mac hardware. Until then…”
Apple already IS firmly set on the idea, or this lawsuit would be non-existent. According to Apple, OS X is sold as an upgrade for your existing system, whether you believe that or not is irrelevant to the issue. Just because it will run on other hardware, does not make it so that it is sold to be run on other hardware. Personally, I do not know why you would want to anyway, other than because it works, as OS X is a piece of crap IMO. I know some people that love it, me, I dislike it strongly.
What they call it and what I believe don’t affect the fact that the retail boxes of OSX are complete stand-alone operating systems.
Again, their intent is not in question. But OSX does run on other hardware, whether Apple likes it or not. And (IMO) Apple cannot legally restrict the operation of their software to their brand of computers.
We’ll have to wait and see what a real judge thinks…
“We’ll have to wait and see what a real judge thinks… “
Exactly. It is good that that section of the EULA will be tested.
“We’ll have to wait and see what a real judge thinks…”
That ladies and gentlemen is the root issue at stake. Throw out all the hyperbole that both sides are throwing around trying to muddy the waters.
The crux of the issue at hand is: Can a EULA legally restrict you from installing OSX which you legally purchased a copy (license)for, on hardware other than Apple hardware?
This has never been tested in court in the US, so it is unclear. It is irrelevant what Apple actually says, what the EULA says, and whether or not you ‘agree’ to abide by the EULA. If that clause of the EULA is not legal, it is not binding.
Once you purchase an item or the rights to use an item, can the manufacturer legally force you to use it in a certain way or only in conjunction with other approved parts?
Can GM insist that you only use GM replacement parts to repair or enhance your car?
Could Ford restrict you to only purchasing fuel at a ‘Ford Gas station’?
Could Microsoft insist that if you want to use a mouse with their OS, you had to use a Microsoft Mouse?
Where do the manufactures rights end and the consumer’s begin?
In any event, anyone who does not abide by the EULA is not breaking the law. At worst they are in ‘breach of contract’, but notice how Apple has not taken anyone to court to try to enforce their EULA? They don’t have a choice any more. It will be decided one way or the other I think.
I recently installed OS X on a Netbook, very similar to the one shown in the article. Now it is working I have quite happily bought a boxed retail copy of OS X. Some of the posters here have mentioned that someone buying a Netbook and buying a copy of OS X to put on it is in someway damaging to Apples finances.
Personally, if someone decides to buy a PC and a copy of OS X to make a hackintosh, I don’t see how that hurts Apple.
I had ^Alb400 to spend on a laptop and I wanted a Netbook – Apple don’t make Netbook and ^Alb400 won’t get me anything except maybe a Mac Mini. So what have Apple lost? They were never going to make a sale otherwise, as it is they’ve got ^Alb83 for a copy of OSX which will never cost them a penny in support (not like I’m gonna ring them and complain). They gained a fan who might buy a Mac Mini in the future, or Mac laptop, or further copies of OS X. Okay, I will never buy a Mac Pro, but not because I can build a Hackintosh, purely because it is overpriced mediocre hardware.
At the end of the day a box copy of OS X isn’t an ‘upgrade’. If they want to label it as an upgrade and start charging ^Alb150 for a full unsupported (i.e. as supported as MS-Windows) version, then I will probably pay the extra for the software (which is what I want) rather than the hardware (which I can take or leave, for the most part).
Apple need to decide if they are technology company or an exclusive club. It seems at present they are trying very hard to remain the latter.
An interesting fact, the company where my brother works many of the highup managers have company Mac Book Pros – purely as status symbols, these Macs dual boot, but OS X rarely sees the light of day (they stick to Windows which they know and *feel* safe with). Apple aren’t interested in selling a great operating system, they are interested in selling over-priced prestige hardware, which just happens to be able to run a great operating system (and OS X too).
@steogaede2…
EXCELLENT point!
apple should learn that accounting proposition that losses can also describe those sales 1 does not make — & so — if any1 were 2 buy mac os solely out of conviction it is better os apple’s not only made sale it might not otherwise have made but might also satisfy customer sufficiently 2 either: a) motivate customer’s future puter buying choice of mac, &/or b) have customer happily endorsing apple 2 others…
in no wise does apple-the-corporate-entity lose out…
KIHARA
would be much more interesting. A much much more interesting review would be an installation of Dragonfly on an Eeepc? I would like to see that. On the other hand why use hackintosh when we have FreeBSD, Linux and OpenSolaris? Why? That hackintosh people could work to improve PureDarwin or bring more uptodate MacPorts. What makes me feel strange is to have yet another unmaintainable piece of software on a laptop or a desktop. Linux BSD and OpenSolaris are here to crush the dark legions of MS and Apple, Phoronix seeem to understand this and it is a much more relevant site than Wired!!!
“What makes me feel strange is to have yet another unmaintainable piece of software on a laptop or a desktop.”
You don’t understand how it can work then. Take for instance the Dell Inspiron Mini 9. For this netbook, there is an ISO (of open source software)that prepares the EFI partition, and puts a few text files to support the hardware that is not native in the OS. You then drop in a retail copy of OSX that you have legally purchased at any on of thousands of retail or on-line outlets, including Apple.
At that point the install is a standard OSX install. You receive all your updates through Apple, and they all work. Just like it does on Apple hardware.
Why would you want to run OSX? Because maybe you like the OS? Perhaps you already have other Apple machines and want to be able to keep data in sync between them? Application familiarity is another one. Apps you already own and have licenses for, etc.
There are a myriad of reasons people would want to run OSX on non-Apple hardware.
In my case, I needed a small laptop for school. I wanted a netbook because I wanted a machine that wouldn’t consume any desk I use, was quiet, was very quick to boot, was unobtrusive, plus would allow me to keep all my data in sync, keep my iTunes in sync, keep my calendar in sync, mail in sync, etc.
Since Apple doesn’t make such a machine to go along with the OS that would allow me to perform those tasks, I purchased a copy of OSX and put it on the hardware that met my needs.
If Apple ever makes such a machine, and it is reasonable in specifications and price, I will certainly consider them when it comes time for me to upgrade from the netbook I have now.
When I say unmaintainable I mean a decent package manager. Netbooks come with Linux, you can use it. Also you say that you may like OSX. I understand it. You can buy a machine from Apple. Otherwise you can have an AspireOne with Linux or even OpenSolaris. Many of them come with WindowsXP. I understand that Apple puts restrictions on its software and you have to agree to them to use it. A Dell Inspiron or an MSI Wind with OSX would be a good idea for a lot of people. For example I have a nice/expensive bed at home that is a joy to sleep. You may like to use it, but I am the one who can permit it. This is the same here. I respect Apple’s decision though from a marketing point of view it makes sense to allow it to other HW. But can you imagine people using a pirated copy on an AMD machine or with a strange southbridge and end up with unbootable configurations? These people will give OSX a bad name because they are in the illusion “It just works”. Apple has a point on it.
“But can you imagine people using a pirated copy on an AMD machine or with a strange southbridge and end up with unbootable configurations? These people will give OSX a bad name because they are in the illusion “It just works”. Apple has a point on it.”
Most people are smart enough to realize that if you run Apple’s OSX on a non-Apple piece of hardware, especially a hacked copy of the OS, it probably won’t “just work”, and won’t blame Apple.
On the other hand there are a lot of Stupid People out there too…there are even people who blame Apple for problems on their Apple hardware when they install crappy 3rd-party hacks that break the machine.
Yet again, one might say, lets try to get clear about this.
There are two contracts which are independent of each other, the purchase contract and the Eula.
It is the Eula, and not the purchase contract, that forbids the installer to tell people how to install on non-Apple hardware.
But Wired cannot be bound by the Eula since they never clicked through. The purchase of a copy, which they may or may not have done, was (as Softman shows), if they did it, a purchase of a copy and not a license of anything. By purchasing the software you are not bound by the Eula. That only happens when you click through.
So this is the first point. Nothing in the Eula is relevant to whether or not Wired is entitled to publish instructions on how to install OSX on non-Apple branded hardware, whether or not that is forbidden by the Eula, and regardless of whether the Eula is enforceable in this respect on those who do click through.
You are not bound by a click through Eula until you actually click through, and the terms of Eulas are not binding on the public at large. What is written in a Eula is not a law. Apple cannot stop Wired from publishing instructions on how to do something, by publishing terms in a Eula. Think about this. Does anyone really think I can publish a book and stop people who have never bought it or read it telling other people where to buy it? That is the sort of craziness this would imply. It would imply that Apple can legislate for the whole country on what they can or cannot publish, just by writing something down in a Eula they may never have even been in the same room with.
The second point is that simply purchasing the software does not result in your being found by the Eula. This follows from Softman, in which a company bought software, did not click through, and was then held not to be bound by the terms of a Eula they had not entered into. In Softman it was also held that the purchase of a copy of software was just that, purchase of a copy and not a license.
Incidentally, this is where first sale applies. You have the right to resell this copy, or even parts of it.
Now we come to a different third point. You get a copy of the software somehow, and you do click through. Is the prohibition on installation on no-Apple hardware enforceable?
First, the weirdest conditions are enforceable on the basis that the Eula is a contract and you have entered into it. An example is the Direct Revenue case. If you agree in a Eula to have the supplier install unlimited amounts of spyware on your computer, and he does it, you will not be able to void the agreement, it will be valid and binding. Seems extraordinary, but it was so in this case.
Does that mean that the Apple clause is valid? No, not necessarily.
However, it is not invalid because it seems objectionable, and it is also not invalid because of anti trust law. This is what was ruled in the recent case. The market was defined in such a way that the anti trust laws did not apply to this clause. This did not mean that the clause is enforceable, it just meant that it was not unenforceable on anti trust grounds.
But, it still may well be unenforceable, and I think it will turn out to be so. This is because it will turn out to be unconscionable (look it up in Wikepedia). It is procedurally unconscionable like just about all click throughs, being a contract of adhesion. And it is substantively unconscionable because of what it does. It basically tries to restrict not what hardware you install on, but where you buy that hardware. It says that the identical collection of hardware bought from Fry’s is not permitted, but if bought from Apple it is.
Maybe there would be a case for restricting the kind of hardware, though it seems unlikely. But I don’t believe there will be a case, in a contract of adhesion, for restricting where you buy that hardware. Now we come to stuff like Goodyear tires must be bought from GM or Ford, because that’s who made the car, and they tell you so.
In the end, this probably is less important than the fact that its becoming generally known how to install OSX on non-Apple machines using either boot-123 or efi-x type software. So in the end, as a matter of practice, Apple is either going to have to turn into the RIAA or give up. That may be as important as the legal case.
By the way, look at the Psystar site. They are getting rave reviews from customers.
Of course they did click through the damn thing. They DID install the OS to a computer, which cannot be done without clicking through the damn license!
Of course it’s not a law. But it’s a breach of contract which allows Apple to sue them at civil court. Which is totally enough, given how ridiculous amounts of compensation can be imposed by court in the US.
So you can resell unopened boxes. Fine! No one ever questioned that. But this case is totally different: Wired DID enter into the license by installing the software. But they breached the license not only by installing the thing to non-Apple Hardware, but also by enabling others (a lot of others) to do so. This clause may or may not be invalidated in the future, but right now it’s valid.
(1) No, its not that you can sell unopened boxes. You can resell your copy of the software, whether the box is opened or not, and whether you sell it piecemeal or as a whole.
(2) No, the EULA is not valid and enforceable. That has not been proved in respect of the hardware restriction. It is what remains to be decided.
(3) I have not watched the video itself, just read the text giving instructions below, you may be right that if it shows Wired assenting to the EULA they will be bound by it, should it in fact be binding. It was a hacked copy, and if they did not need to assent to the EULA because of that their situation is a bit different – they would be violating copyright for experimental purposes, which might or might not be covered by the fact that they urge people to buy a legal copy.
However, cat is now well out of bag, because the fact that whoever made the video is bound by having clicked through, cannot mean that anyone else is bound. Should another person post that video and the commentary below it, they will be violating neither EULA nor law. The futility of trying to stop this video and instructions being published widely if anyone is interested should be obvious.
If Efi-x did not make it obvious already.
if it’s actually legal in France…
Here tied sale is forbidden, and all the PCs sold with windows without the option to take it away are actually sold illegally (but we have a hard time getting distributors to act upon it). I think since OSX is a separate product, and is sold as such in boxed form as well, having such an abusive clause in the EULA actually negates the law since in essence it forces you to also buy one of Apple’s machines if you want to make use of it. Might need some checking but I believe it might actually work in court. There is also a right to interoperability, but I’m not sure how far this gets.
Anyone fancy comming to France, buying the boxed OSX and suing Apple for not illegal contract ?
It is very probable that in the EU generally the clause will be unenforceable. It violates two basic principles, one the general unlawfulness of linked sales, two the general unenforceability of sellers dictating how their products are used post sale.
Both have their roots in the EC and the Commission’s crusade against anti-competitive practices.
You also have, in various member states, prohibitions on renouncing your rights under consumer protection legislation. As an example, in the UK, all guarantees for consumer products that require you to sign and return a form, come with the caution that this does not affect your statutory rights. It is very possible that the prohibition would fail in the UK under consumer protection law.