27 Comments

Summary:

With all the hoopla surrounding Psystar these days, a few other companies have jumped on board the Mac clone bandwagon. In some cases they’re using somewhat, shall we say, unique, methods. Still, the intent is clear: skirt Apple’s EULA and sell a solution that allows Mac […]

With all the hoopla surrounding Psystar these days, a few other companies have jumped on board the Mac clone bandwagon. In some cases they’re using somewhat, shall we say, unique, methods. Still, the intent is clear: skirt Apple’s EULA and sell a solution that allows Mac OS X to run on generic PC hardware. In other words, swipe Apple’s IP.

Wired has a piece that discusses the cloning and how Apple may be powerless to stop it. 

What bothers me most about cloning is the sheer hutzpah of those doing it. For example: 

“We certainly don’t want to get into a legal battle that’s over a couple thousand dollars,” an EFIX USA spokesman said. “Potentially Apple could have a legal issue there. They may not have a legal issue, but with all the money they have they might try to make one.”

Apple could have a legal issue? Oh please. 

Translation: We know what we’re doing is wrong, and have no legitimate defense for it in court, but we’ll try to make Apple sound like the bad guy and grab some Apple-basher press. 

And of course they bring up money. When in doubt, always bring up money. It’s a great way to obfuscate the issue; Apple is big and rich while they’re small and poor. Forget that money is one thing they’re likely in it for. Yet just as Psystar thinks their EULA is sacrosanct while Apple’s is bogus, EFIX USA thinks their money is OK and Apple’s is somehow wrong.

What’s funny is that the company making the dongle EFIX USA is selling knows it’s wrong: 

“We get somewhat mixed signals on what [Art Studios Entertainment Media] would really like to accomplish,” an EFIX USA spokesman said. “They produce the device and want to sell it, but somehow they don’t want it to come out that the primary function of the device is that it allows people to run OS X on generic Intel hardware.”

Ya think? Here’s a free tip for you: When the product you’re selling has to be all hush hush, with a kind of whispered admonition to “ixnay on the rimarypay urposepay,” something is definitely wrong. 

The Apple EULA, for all its complexity, says you’re not allowed to run the Mac OS on a non-Apple system. No matter how clever the cloners think they’re getting, or how much railing against The Man, or hand-wringing they perform, they’re nothing but a bunch of snake-oil hucksters selling what isn’t theirs. 

And spare me comments about how Apple’s business model is “wrong”, how they should allow the Mac OS to run wherever you want, how they’re forcing you to buy a Mac, etc. It. Doesn’t. Matter. I can respect your opinion, but those arguments are emotional, not legal, and a waste of time. Wishing won’t (and shouldn’t) make it so. Apple’s business model is just fine, thank you. Any glance at their quarterly reports makes that abundantly clear. 

Further, Apple forces no one to buy a Mac, they’re simply setting the conditions upon which they’ll sell their work. You don’t like it? Get a PC and run Linux or Windows. I’ve run every version of Windows (except server) from Windows 3.0 to Vista, and if Apple closed their doors tomorrow I’d be just fine. Still, the advantages of the Mac OS to me are easily enough for me to agree to Apple’s terms, just as I agree to Microsoft’s when I run their OS. 

As for how Apple can stop cloning, I see no evidence that they try to shutdown the occasional hacker. Unlike the RIAA, Apple isn’t suing grandma because she had the wherewithal to get a Hackintosh running. 

But there’s a world of difference between the average one-off geek assembling a Mac clone and a corporation (no matter how small) doing the work for you and making it widely available. The difference between the two scenarios should be obvious to anyone not shilling for the competition, or Apple-bashing, or looking for a page-hit headline. 

Clearly, Apple is going after firms with a business model that includes Apple IP the firm isn’t licensed to sell. Despite the alleged legal arguments or loopholes from closet “attorneys” on various message boards, it’s difficult to see any legal leg for these firms to stand on. I think the Psystar case makes that clearer with each passing day. 

Sadly, there’s collateral damage caused by these hucksters. While I think most customers probably should have known better, there are undoubtedly those who bought in good faith. These people don’t follow this topic like readers of this blog, and had no idea they were buying something questionable. I certainly don’t think Apple owes them anything, but I wish the legal system could stop clone sales until the question is definitively settled. Of course, that opens up another can of worms so the bottom line is these hucksters will screw over some honest people. The hucksters will tell you they’re trying to help users by making a “Mac” more affordable, but how many of you believe that when they lose in court they’ll do anything to make it right with the users they bilked? 

Finally, the Wired article concludes with the following: 

…Apple’s clone problem is unlikely to go away in the near future. As long as OS X runs on Intel hardware, and as long as the developers behind OSX86 continue their work, it will be difficult for Apple to stop cloning altogether.

I think Apple’s pursuit of cloning is right where it should be. No sense in going after the occasional user, but they should not allow any widespread business to spring up around their IP. I’m not sure any other course would make much sense.

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  1. Could someone please explain to me where the concept that clone makers automatically have to, “swipe Apple’s IP,” comes from??

    Correct me if I’m wrong, but to the best of my knowledge Psystar et al. are shipping a genuine original, Apple created copy of Mac OS X with each PC they sell, aren’t they? Apple’s been paid their pound of flesh for the operating system. Granted Psystar messes with the OS a bunch to get it to install, but they’re still paying Apple for each copy.

    (If I am misinformed on the above point, please disregard the rest of this rant as it’s completely moot if Psystar is shipping illegally copied Leopard disks.)

    I completely fail to see a problem with someone disregarding blatantly anti-competitive clauses of a click-wrap EULA, especially considering that the body of case law on such “agreements” is that they aren’t enforceable beyond the terms of a standard quid pro quo sale of goods anyways.

    Try and imagine for a moment that Microsoft decided to go into the computer hardware business and decreed that Windows could only be legally run on a Microsoft brand computer. Ignore for that moment that it would be suicide for MS to do such a thing, of course. Would anyone in the entire free world consider such behavior to be acceptable or even legal if Microsoft did it?

    Why in heaven’s name can Apple get away with the same garbage? The bottom line is they offer a computer for sale which includes their OS. They also offer their OS for sale separately without a computer. Anyone who purchases Apple’s operating system has the legal right to do pretty much whatever they want with it, short of making and distributing copies. If I wanted to find some way to get Mac OS X running on my Super Nintendo, that’s my business and nobody else’s. If I further wanted to resell Super Nintendo’s with Mac OS X pre-installed, so long as I purchased and resold the copies of Mac OS X that I installed, no laws (aside perhaps those of good taste) have been broken.

    Now don’t get me wrong. I’m currently sitting in front of two Apple computers (MBP and MP) and have another MP and older PowerBook at home. I choose to pay Apple for their hardware because I think they do a stellar job of putting it together and integrating it with their OS and other offerings. I also don’t enjoy “tinkering” with my computers much any more which is why I gave up on desktop (and laptop!) Linux in favor of Mac OS X in the first place.

    That said, if ever Apple’s hardware quality falls to the point where it became cost effective to “fight” with third party hardware again, there’s no reason in the world that Apple should be able to preclude me from installing their OS on other hardware.

    Apple has a way to fix their cloning issues: Stop selling Mac OS X. Issue a copy of the OS with every computer sold and make all updates free for life. Make it impossible to buy a stand-alone license for Mac OS X, and you turn the cloners in to plain old copyright infringers. But so long as Apple wants to have it both ways, I’m well within my rights to pay for a new copy of Mac OS X and install that one copy how and where I see fit.

  2. Great review of the facts of the case.

    Too often those commenting on these issues don’t make the separation between hobbyists hacking into OS-X and companies making a buck on the same thing. While Psystar and others are often heralded as heroes for fighting the (supposed) great evil that is Apple, it’s clear to anyone without an ideological axe to grind, that they are in it primarily for the money.

    The Wired article quoted for instance *purposely* obfuscates this central point when they say that cloning is a “problem” that is “unlikely to go away” in the near future. It’s certainly true that there have always been Apple clones of one kind or another, the OS86 project was around before Apple even switched to intel. But they weren’t a “problem” until Psystar came around.

    Cloning, in the sense of the OS86 project will likely hang around, but the immediate “problem” in the sense of Psystar, could easily “go away” sometime very soon. Additionally, this is an outcome that we should actually *hope* for, not something to be seen as some kind of inevitable failure, which is the way Wired phrases it.

  3. I think that a question to be asked here is of the validity of the clause in the EULA which limits your right to have OS X run on non-Apple hardware. Aside from the obvious question of what technically constitutes “Non-Apple” (Apple doesn’t manufacture the chip, motherboard, hard drive, memory, and any number of other components, after all), which is semantically obvious but possibly not as legally obvious, there’s also the question of legality. There is much case-law on the books, from what I understand, which limits the enforceability of a EULA. I could write one, for example, which contains the buried point:

    “You hereby grant permission for the parent company to crash on your couch for as much time as is required, without warning, and without reparations from the parent company, or any agent of the parent company. Refusal to grant agent of parent company admission into your dwelling constitutes a breach of terms, and requires you to return product to parent company, in exchange for no refund.”

    That doesn’t mean that the above clause, even if it’s agreed to tacitly by the user, from being enforceable. Now, I can’t speak to most places, bu tI believe I’ve read something about conditions of a EULA being disregarded in states like California.

    This isn’t to say that I think that the clause in the EULA is invalid, but it seems to me that a person (if such a thing hasn’t already done so) could challenge the validity of the EULA. This would not only loosen Apple’s grip, if permissible, but it would also, presumably, loosen Microsoft’s.

    Also, what if someone wanted to install OS X in a virtualization environment, and could make the case that Apple’s EULA unfairly restricts such reasonable use? Such an exception ought to lead to a larger change in policy, I should think.

  4. I should also suggest a third option: Sell OS X as an upgrade product, but do so only to people with registered Apple products. Presumably you’d get some people who upgrade to the newest version, initially intending to keep their older hardware, until they realize that the new feature in OS X 10.X works slow, and would work amazingly well in a new computer, and buy a shiny new piece of hardware.

    In that case, Apple would make even more money. Win win win, yes?

  5. “Correct me if I’m wrong, but to the best of my knowledge Psystar et al. are shipping a genuine original, Apple created copy of Mac OS X with each PC they sell, aren’t they? Apple’s been paid their pound of flesh for the operating system. Granted Psystar messes with the OS a bunch to get it to install, but they’re still paying Apple for each copy.”

    You’re wrong.

    Apple do not sell full licences of OS X for installation on any PC.

    Apple only sell upgrade licences of OS X for Mac users to upgrade their Apple hardware to the latest version of OS X.

    Apple have not been paid in full for anything, and Psystar et al. are selling something they do not have the right to sell, and by hacking it they are also violating Apple’s IP and re-selling it.

  6. If Apple wants to stop other companies from selling hackintosh PC’s they need to lower their prices on every product. In my opinion it’s the only way.

    Why go though the hassle of wasting tons of money of lawyers and all that BS fighting when they can lower prices.

    For someone like me who lives outside of the U.S, it’s more appealing to buy a hackintosh rather then an iMac. I can get 2 hackintosh pc’s for the price of 1 iMac over here. If I want a Mac I would have to pay an extra 15.5% tax on a mac that’s already expensive. Where as if I would buy a hackintosh I could get it for dirt cheap without worrying if I have wasted huge amounts of money.

    Why not lower prices so the product is more appealing to the rest of us?

  7. Whilst i agree that if Microsoft started to only offer Windows on their own hardware there would be an insane amount of law suits for putting third party hardware developers out of business. The difference between Apple and Microsoft is that Microsoft have only ever offered their software using third party hardware. Microsoft is too much part of the computing industry to suddenly change its way of doing business. It would screw to many people over and therefore the courts would step in.

    Apple dont have this problem as they have a much lower market share and their orginal business model is providing software and hardware together for best performance, security, convenience and look. People chose Apple for all of these reasons.

    The real question though is if Apple got to a point where they had 60% market share, would they be forced to change how their business works to keep the technological industry thriving and innovating. Whilst it’s not particularly fair to Apple, it’s a necessary step for progress to happen. What changes they would make im very unsure about. Loosen some apron strings i guess but too much and Apple would lose their core structure of their computers.

    Just the opinion of a 19 year old Computer Science student in the UK.

  8. I have an idea of where it would end if Apple just caved in and sold their OS in a version that would install on just about anything.

    We did some software that was to run on a bunch of touchscreens, our demand for doing the job was that we had to approve the touchscreens before our product was put on them. Long story short: the customer bought their own extremely cheap screens and it reflected poorly on our software (“the buttons don’t work”, “the graphics is off-color”, “it’s flickering” and so on).

    Apple products don’t come in brown cardboard boxes, the rounded corners in the OS windows has the exact same curvature as the hardware that runs it, the colors match, the whole thing is tuned to be a unified experience… Why the frick throw that away? They had to triple their software staff to make sure that OS X would run on every little piece of crappy hardware from any little crappy hardware facility. Then, of course, there would be no time left for the “something extra” that I gladly would pay through the nose for.

    I don’t think Apple would go after the little guy, I believe Apple likes and encourages the happy hacker. But psystar is making money by forcing OS X to adhere to the lowest common denominator, thereby picking at the Apple brand. Steve Jobs can’t very well stand on stage and say “We have the best OS” if you can buy a hideous beige plastic box that can’t update or communicate with half the peripherals, it costs $200 and has a big ugly “Intel Inside” sticker on it…. o yeah and it runs OS X.

    Well, the article is on the legal grounds, those I can’t elaborate on. But I don’t think you can just buy 50 gallons of Coca Cola, pour it in a crazy square bottle, slap your photoshopped sticker on it and call it “psystar coke – original recipe”, that is what all the lousy products do. I can easily see why Apple is willing to take the bad publicity(not from their customers) and spend the money on slapping psystar.

    P.S. 10% of why I keep getting Macs is so that I can sit next to my colleague with a strange self-righteous smirk when his Dell/Windows combo throws a hissy fit for 11. time that day. Now if he could just get OS X that would make me the victim of the smirk.
    (Yes I do feel ashamed about the comment above, but won’t deny that some of Apples profit lies in white earbud-status and that little bit of extra cost)

  9. In regards the EULA and enforceability ….

    People forget that a EULA has never been regarded as “meaningless” in any way shape or form. Just because putting in a clause about kipping on the owner’s couch would not be enforceable, doesn’t mean that nothing in the EULA is. Like most things of this type, there is a scale of both opinions and responses, and the existence of a “ridiculous” case does not preclude a sensible one.

    A EULA is clearly an agreement to which the purchaser of the software agrees. It clearly has some terms, and clearly won’t let you run or use the software until you agree to them. If said terms turn out to be “ridiculous” (and this has to be argued in court of course), then perhaps they are not enforceable, but an agreement with sensible, reasonable, discoverable, and most importantly *expected* terms that is agreed to with ones eye’s open as it were, is quite likely enforceable.

    People who make arguments that EULA’s are just junk are making the same argument one makes when asserts it “proven” that morals are irrelevant because when push comes to shove the average person will choose their own life over that of another most of the time. The existence of a marginal or extreme case (in this case a “ridiculous” clause in a EULA), does not invalidate all other cases. To argue otherwise is against both common sense and the history of law.

  10. Right or wrong I don’t care because Apple doesn’t currently sell a computer that I can both afford and would be happy with. That is why I am planning to build an EFI-X based Hackintosh. If Apple sold a computer in my price range that didn’t require me to compromise so much I would happily buy one of them instead. Heck Macbook + Firewire (either 400 or 800) and I would probably get one but I have too many Firewire devices to replace them with poorer performing USB 2 devices.

  11. @ Twist:

    “Right or wrong I don’t care because …”

    So why are you even bothering to comment on a moral issue if your basic stance is that you don’t care about morals? You obviously don’t care about what’s legal and what’s not either, so why should we care about any insight you have into this court case?

    You’re just looking for a forum for criticisms about Apple you already held, and to hear yourself talk in general.

  12. Correct me if I am wrong, but isn’t the fact that the EFI-X dongle works “caused” by the fact that it implements EFI?

    The PCworld has been blatantly ignoring EFI, the successor to BIOS. Don’t forget that this EFI standard was created by many major players in the PC hardware business, including Intel.

    So don’t blame EFI-X too soon. If the PCmakers had been smarter and had put EFI in their boxes, the “problem” would have appeared much sooner.

    Apple’s insight in the PC industry that refuses to innovate is remarkable and puts them at least one step ahead of every one else.

  13. I’m a BIG Mac booster — ever since 1987 (shudder). My career has been connected to Macs ever since — including a really cool stint at NASA upgrading their Macs (largest Mac Cube installation in the world, at least in 2003), 18 months as a Mac Genius, Apple Corporate, and so on. I thought that important to put the following comment in a better context. ;-)

    The box that these companies have been selling contain NO Apple IP. They are not duplicating Apple hardware designs. The include a sealed copy of Mac OS X in the box, bought and paid for by Apple. They do NOT pre-install the OS.

    As long as these are the conditions that a box is sold, it will be next to impossible for Apple to stop. Even if they manage to stop someone from producing a dongle in the US, there are plenty of places it could be obtained.

    Bluntly, Apple could short-circuit the whole mess by selling a $225.00 copy of the OS with no guarantees or support for use on any “beige” box. Prohibit the OEM crowd from getting into the act unless they’re willing to pay through the nose. New revenue stream, the semi-legit “clone” businesses go bye-bye.

    I just purchased a refurbed Dell and installed Ubuntu on it for someone who’s going back to school because they lost their job recently. That cost me $400.00, and they love it. Apple’s current cheapest model is $1000.00. I used to argue against the “elitist” label that was applied to Mac users, but lately I’m starting to wonder if perhaps it’s warranted after all.

    I’ve noticed quite a few of these blogs on this topic, all with exactly the same tone — considering recent revelations about favorable medical journals being ghost-written by pharm industry shills, not to mention tales of the DoD propaganda pool over the last 6 years, it’s not a stretch to wonder if Apple is trying to shape the media narrative with well placed bloggers as well. Of course, I could just be cranky because this tin foil hat itches… ;-)

  14. John,

    “The box that these companies have been selling contain NO Apple IP. They are not duplicating Apple hardware designs.”

    They’re selling a hardware solution designed to run Mac OS X for purposes that violate the EULA. Further, the MAC OS they’re selling is an UPGRADE for existing Mac owners. It is NOT a license for new machines nor is it a package for resale. Even if they don’t sell the OS, they’re widely distributing a method to skirt the EULA for their own profit.

    “Bluntly, Apple could short-circuit the whole mess by selling a $225.00 copy of the OS with no guarantees or support for use on any “beige” box. ”

    Huh? What makes you think the same people who refuse to honor Apple’s terms now will honor them then? Not gonna happen. They’ll whine, and piss and moan that Apple left them in the cold, a EULA that denies support is a rip-off, etc., and then the class-action law suits will ensue. Please.

    Frankly, if people would honor agreements as much as you give them credit for, maybe the solution is for Apple to put in the EULA that you can only run Mac OS on Apple hardware. Oh wait…

  15. Great article and comments. I love how some people only seem to care about “me, me, me” and not about morality or legality. I also love how the myth that EULAs are not enforceable is bandied about. How about I quote from the actual Judge in this actual case?

    Apple asks its customers to purchase Mac OS knowing that it is to be used only with Apple computers (Compl. ¶ 28). It is certainly entitled to do so.

    Please read the material before making ignorant comments.

    Here is the Court’s legal rationale:

    Newcal found such a single-brand aftermarket to be properly pled. Newcal, however, distinguished two other appellate decisions which had found that contractually created aftermarkets could not be relevant antitrust markets. Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430 (3d Cir. 1997); Forsyth v. Humana, Inc., 114 F.3d 1467 (9th Cir. 1997). Applying Kodak’s reasoning, Newcal held that, although the law permits an antitrust claimant to restrict the relevant market to Kodak-style single-brand aftermarkets, “the law prohibits an antitrust claimant from resting on market power that arises solely from contractual rights that customers knowingly and voluntarily gave to the defendant (as in Queen City Pizza and Forsyth).” Newcal Industries, Inc., 513 F.3d at 1048 (emphasis in original). Psystar rests on precisely such a claim: the counterclaim alleges that, by its End User License Agreement and other means, Apple specifically restricts the use of Mac OS to Apple-labeled computer hardware systems. Customers, therefore, knowingly agree to the challenged restraint.4

  16. I want to clarify: the ignorant comments were not in the article but in a few of the respondents. The article was spot-on IMHO.

  17. These clone companys would definitely be justified if they actually shipped Leopard with their products, rather than unlicensed installs using upgrade licenses. Clones, cheap? For it to be legit, it would require a full license of OS X, which Apple only ships with a true Mac. I’d definitely get one of these if say, they had a older functioning Mac included with them to make the license legit.

  18. Could someone quote chapter & verse to back up the claim that Apple only sells “upgrade” licenses to Leopard? I’ve read the EULA in my boxed copy of Leopard, and there’s no mention what so ever that the included grant of license is valid only if I have a pre-existing copy of OS X to upgrade.

    The only relevant language that I can find is:

    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.

    As far as I’m concerned reading that, if I take one of the two white Apple stickers included in the box and stick it on the side of a Dell, I’ve created an “Apple-labeled computer,” and that should be the end of that.

    The only references to “upgrade” in the entire license are:

    The terms of this License will govern any software upgrades provided by Apple that replace and/or supplement the original Apple Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

    I presume that’s intended to cover to software updates like 10.5.6. Specifically, the original license still covers patches. Perfectly sensible there.

    I. Use of Adobe Color Profiles. You may use the Adobe Color Profile software included with the Apple Software pursuant to this License, but Adobe is under no obligation to provide any support for the Color Profiles hereunder, including upgrades or future versions of the Profiles or other items.

    Clearly, that has nothing to do with the OS itself.

    Searching for “update,” I get:

    Updates: If an Apple Software update completely replaces (full install) a previously licensed version of the Apple Software, you may not use both versions of the Apple Software at the same time nor may you transfer them separately.

    That bit seems so vague as to be meaningless. Granted, if I install Leopard over Tiger, it’s a complete replacement. But I could just as easily install Leopard on a completely blank hard drive and have no such replacement. My reading of that term is that it’s intended to attempt to invalidate the license of any existing previous version; but it has no effect regarding rights of the current licensed product at hand.

    Apple is not obligated to provide any updates, maintenance, warranty, technical or other support, or services for the resultant modified Apple Software.

    You agree that Apple and its subsidiaries may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Apple Software, and to verify compliance with the terms of this License.

    It seems pretty clear that Apple has made no attempt to claim that the boxed version of Leopard may only be used as an upgrade for a previous version of the product.

    As to the enforceability (or not) of EULA’s, I think the most relevant point is that EULA’s which contain terms contrary to the Universal Commercial Code are largely found to be unenforceable as to those conflicting terms. In particular, the over-the-counter sale of software (that is a sale without a separate signed contract governing the terms of the sale) has been largely considered to be the same as any sale of goods (non-software) for cash. Attempting to limit what a buyer can do with a purchased good is a contract of adhesion and is generally found invalid. In order to apply such limitations, you need the buyer to explicitly sign a contract giving up various rights under UCC. EULA’s don’t work for that purpose.

    The EULA as a whole certainly still holds, but when a company attempts to limit what buyers can do beyond what a reasonable person would expect, courts generally find the EULA invalid. I personally believe that a reasonable technically minded individual would expect to be able to install a purchased operating system on any piece of hardware capable of running it. I would further expect it reasonable that a person possessing the knowledge to do so could freely work around any mechanisms which exist solely to artificially limit the types of hardware on which a particular piece of software can run. Vis., Linux on PlayStation’s. Granted in that case, the restrictions are placed on the hardware rather than on the software, but I think the basic case stands. Once you’ve paid money for it, what you do with it is your business.

  19. As far as I’m concerned reading that, if I take one of the two white Apple stickers included in the box and stick it on the side of a Dell, I’ve created an “Apple-labeled computer,” and that should be the end of that.

    You have GOT to be kidding me. That has to be one of the most retarded things I have read yet. It is because of people like you that the legislature has to wrote tomes on something which is simple common sense. If you don’t know what is intended by Apple-labeled hardware, then you are hopelessly obtuse or looking for a loophole. That is not a good faith interpretation whatsoever, and if that is how you operate, I pity anyone who enters into contractual agreements with you since you obviously will obfuscate the common sense to your own liking when it suits you.

    I guess it all depends upon what “is” “is” right Mr. Clinton?

    And you are correct, the EULA isn’t limited to upgrades. I don’t know where that commenter got that information.

  20. Further:

    As to the enforceability (or not) of EULA’s, I think the most relevant point is that EULA’s which contain terms contrary to the Universal Commercial Code are largely found to be unenforceable as to those conflicting terms. In particular, the over-the-counter sale of software (that is a sale without a separate signed contract governing the terms of the sale) has been largely considered to be the same as any sale of goods (non-software) for cash. Attempting to limit what a buyer can do with a purchased good is a contract of adhesion and is generally found invalid. In order to apply such limitations, you need the buyer to explicitly sign a contract giving up various rights under UCC. EULA’s don’t work for that purpose.

    Apparently you feel you know more than the Judge at this point.

    Apple asks its customers to purchase Mac OS knowing that it is to be used only with Apple computers (Compl. ¶ 28). It is certainly entitled to do so.

    And as far as contract of adhesion, IMHO you do not know what you are talking about. Adhesion contracts require some very specific factual situations which I do not believe apply here. The consumer has a wide range of choices for such services, including open source alternatives. The service is not one involving basic necessities. The duty is not “onerous,” and no, once you buy something it is not your “right” to do with it what you please. For instance, you cannot make copies of it and sell it.

    Lastly, you are not buying the software. You are buying a license. There is a difference. You may not like that reality, but sometimes reality bites.

  21. The language in a contract or other legal agreement is construed using its plain English meaning unless the contract specifically defines certain terms or those terms have an area-specific meaning in cases where technical or other industry jargon is widely accepted to mean a particular thing which differs from its plain English meaning but would be understood as intended by someone versed in the particular are of law, technology, etc.

    As defined by Merriam Webster, none of the verb meanings of “labeled” suggest anything other than the obvious meaning — a distinctive mark affixed to an object. To the best of my knowledge and experience in the field of software and computer technology, the verb “labeled” has no special meaning which would be applicable in this case. If Apple had used wording like “manufactured by”, “sold by,” etc., there would be no question. The only ambiguity is the hyphenated “Apple-labeled”. If that implies that the labeling was done by Apple, rather than an object which is labeled with an Apple, there may be some room there. Certainly long, drawn-out legal battles have been fought over the meaning of punctuation more than once in the past.

    As for the Psystar case, I expect the validity of applying such a restriction will be tantamount, and only should the judge find such a restriction valid would such minutia as the meaning of the hyphen come into play. Admittedly, I’m being pedantic with the interpretation of “Apple-labeled”. That should in any case be moot considering that Apple oversteps what they can do with a contract of adhesion with that entire clause.

    As far as entering into a contract with me personally, if your intent is to infringe upon my basic legally protected rights, then you should absolutely take some pause before putting ink to paper. If there’s any possible way that I can legally prevail with what I believe are my rights, you’d better believe I’m going to take that option. Again, though, in this case, the minutia are meaningless as far as I’m concerned. Any attempt to constrain my use of a sold good as Apple attempts to do in their EULA is invalid on its face under UCC.

  22. The language in a contract or other legal agreement is construed using its plain English meaning unless the contract specifically defines certain terms or those terms have an area-specific meaning in cases where technical or other industry jargon is widely accepted to mean a particular thing which differs from its plain English meaning but would be understood as intended by someone versed in the particular are of law, technology, etc.

    And you don’t find Apple-labeled within the context to be plain?

    As defined by Merriam Webster, none of the verb meanings of “labeled” suggest anything other than the obvious meaning — a distinctive mark affixed to an object. To the best of my knowledge and experience in the field of software and computer technology, the verb “labeled” has no special meaning which would be applicable in this case.

    Once again, in the context, the meaning is clear using the reasonable man standard, not the pedantic man standard.

    If Apple had used wording like “manufactured by”, “sold by,” etc., there would be no question.

    Oh no Mr. Clinton, I would bet my petunias that you would be arguing that it was manufactured by a Chinese plant or sold by a reseller. Pedantry knows no bounds. I would pay money to see you try to make this argument to a Federal judge.

    The only ambiguity is the hyphenated “Apple-labeled”. If that implies that the labeling was done by Apple, rather than an object which is labeled with an Apple, there may be some room there.

    Oh please. Seriously, you are delusional if you believe that is a reasonable interpretation. In the entirety of the context (which is what Courts construe), it is clear by the reasonable man standard.

    Certainly long, drawn-out legal battles have been fought over the meaning of punctuation more than once in the past.

    Yes they have, and many times precious tax dollars are wasted because of pedantics such as yourself. Just because things have happened don’t mean they should have or are correct.

    As for the Psystar case, I expect the validity of applying such a restriction will be tantamount, and only should the judge find such a restriction valid would such minutia as the meaning of the hyphen come into play.

    Apparently you skipped over the part where the Judge has already stated:

    Apple asks its customers to purchase Mac OS knowing that it is to be used only with Apple computers (Compl. ¶ 28). It is certainly entitled to do so.

    And cited case law.

    Admittedly, I’m being pedantic with the interpretation of “Apple-labeled”.

    You think? That is an understatement.

    That should in any case be moot considering that Apple oversteps what they can do with a contract of adhesion with that entire clause.

    Case law please? As I said above, I do not believe you can prove that this is a contract of adhesion. Psystar’s attorneys have not argued that it is, do you know more than they do about the law? They may eventually make that argument, but they have not so far. I think there is a reason for that.

    As far as entering into a contract with me personally, if your intent is to infringe upon my basic legally protected rights, then you should absolutely take some pause before putting ink to paper. If there’s any possible way that I can legally prevail with what I believe are my rights, you’d better believe I’m going to take that option. Again, though, in this case, the minutia are meaningless as far as I’m concerned. Any attempt to constrain my use of a sold good as Apple attempts to do in their EULA is invalid on its face under UCC.

    Case law please? The Judge (whom you apparently think you know more than) has already stated in a Court Order citing case law that he does not agree with you. Now perhaps Psystar’s latest amendment might raise some new issues, but so far, all you have is bluster. And frankly, I find it smoke and mirrors.

    You see in your statement above, you agreed that if you can “legally” find a loophole, no matter how ridiculous or ethical, you will take it. You are right. I would never enter into a contract with you. I see you design software. I would not make a purchase either since you seem to think that whatever may be legally permissible is morally right.

    Psystar and YOU know full well what Apple-labeled means. You are not that stupid. And neither are they.

  23. And I see you ignored that a license is sold not the software itself. Neither of us are attorneys. But I work with contracts all day and am in discourse and education regarding them. Granted it is not in the area of software, but it is in an area where “adhesion” is not an unheard of argument.

  24. And Mr. Clinton: “Label” is a term of legal art. Instead of Miriam-Webster’s you might have checked Black’s Law Dictionary.

    Label:… An affication to or making on a manufactured article, giving information as to its nature or quality, or the contents of a material, package or container, or the the name of the maker, etc. Higgins v. Keuffel, 140 U.S. 428; 11. S. Ct. 735, 35 L.Ed. 470. The informational content of such labels is often governed by federal and state laws; e.g. Fa8ir Packaging and Labeling Act. 15 U.S.C.A. Section 1457.

  25. Sorry for the typos. People talking out of their rears without citing any authority annoys me.

  26. Mac Clones Revisited: Some Companies Know the Difference – TheAppleBlog Tuesday, January 20, 2009

    [...] wrote earlier about Mac clones and where Apple may draw the line. A recent example I gave of the sheer bravado of the cloners was the story of EFI-X USA selling a [...]

  27. » give us this day our daily kool-aid i drank the kool-aid: clutching my dixie cup of apple goodness Wednesday, January 21, 2009

    [...] TheAppleBlog sums up nicely how I feel about Mac cloners such as Psuckstar: And of course they bring up money. When in doubt, always bring up money. It’s a great way to obfuscate the issue; Apple is big and rich while they’re small and poor. Forget that money is one thing they’re likely in it for. Yet just as Psystar thinks their EULA is sacrosanct while Apple’s is bogus, EFIX USA thinks their money is OK and Apple’s is somehow wrong. [...]

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