I see the difference there, thanks for the clarification.
No problem!
I am still confused, though, how the package sold to me is both merchandise and license.
It's a simple combination of constituent parts (that's often not so simple in practice). A license is an entity to be manipulated, and a contract is in many ways a commodity. When you buy an orange, it's relatively simple--you get the orange. When you buy a toaster, you get a box, some warranty terms, and the toaster. You don't get the right to reproduce the toaster or the right to use their IP to sell or otherwise distribute your own products. You can certainly build
a toaster based on what you learn from that toaster, but you can't replicate
that toaster model.
You can buy a contract, too. You can even buy the
option to enter into a contract (called, sensibly enough, an option contract). As a seller, you can put together any combination of items as a single product, so long as they're yours to sell.
I didn't sign anything when I bought it
You don't need to.
if I had a year and the appropriate unix command skills, I could feasibly install it on my Hard Drive without even seeing the EULA
Willful ignorance is not an excuse, particularly where you have to have observed it in order to "ignore" it. You can't cut it out without seeing that it's there.
It's akin to buying a book with a license agreement on printed on page 1.
That depends on what the license agreement is and what is acceptable as a manner of assent. An interactive mechanism (Click "I agree") is uncontroversially manifest assent.
Can you explain how a company can impose/enforce an end-user agreement when there is no discrete contract
It's a condition of use and longstanding trade usage. Unless you had never encountered software before, you cannot claim surprise. Even if you had never encountered a computer or software before, the presentation of terms clearly give you the right to decline without penalty. Having to drive back to the store or pay return shipping is incidental.
There's no other practical way for mass transactions to be performed. Standard form contracts are just the way it is. Individually negotiating and signing just isn't feasible for these kinds of low-value transactions.
Which is why we'll have to wait for this court case. Hopefully PsyStar will bring it up.
How will they bring it up with no favorable authority? It's not a case of first impression; it's a case with prior treatment that has gone the other way. This case will probably never even get to trial. Setting aside the issues of antitrust and EULAs, Psystar will have to demonstrate that the product is sold as an independent whole, and not offered at an artificial discount to select customers. Even if they clear the unlikely first hurdle that it constitutes anticompetitive tying, Apple still has a "promotional tying" defense recognized by the courts.
To put it simply, they must prove that OS X is offered at market value for a proprietary, blank-slate machine and that it is not simply offered as an upgrade for existing customers. They must also prove that the product is independently viable (it's not, since the sale of
Macs is what funds OS X development, not the sale of
copies, which doesn't even appear to account for 1% of Apple's revenues).
Because every Macintosh comes with a full-version that is not transferable except with the computer, as long as the system requirements specify a Macintosh, the retail packaged Leopard is nothing more than an upgrade for existing customers. Even outside the mechanics of the situation, which are sufficient for such a finding, comparison to other sources shows pricing in line with proprietary OS upgrades, not full versions.
