Whoa!?! Hold on a minute. Now this is getting really strange. I've bought PCs from retail stores with Windows pre-installed on them. Is it your position that the manufacturers of those PCs are pirates because they "answer[ed] a question that can only be answered by the final user"? So, on your view, then, all computer manufacturers that pre-install software on PCs are pirates because they are "violating the 'final user' right to say No to the EULA." I don't think you can seriously defend this view.
OEMs have special distributions of Windows. Those are not retail distributions and they allow OEM to install the product.
But, to be fair, OEM Windows, only can be installed on the computer you purchased from the manufacturer that gave it to you. If you take your OEM Windows from your Dell and install it in your HP you are violating the EULA.
If you try to sell your OEM windows without the computer, you also violate the user agreement.
Retail Windows have a different agreement, because it is to the final user, not to the OEM.
Again, what law is being broken? Besides the fact that somebody somewhere is breaching a contract, what criminal law has been violated? The view that's been expressed here has been that if you breach the contract you have no right to do anything with the software, let alone have it installed, and thus any installations are in violation of copyright law.
Yes! but there is a problem here. In some countries EULAs are not bounding, unless they have a specific way of doing them.
AThat view translates to the general view that any software EULA violation entails a breach of contract and a criminal actnamely piracy. Is that your view?
Again, a violation can be criminal in some countries, like USA, but not in other places.
So, on your view, during the time before Apple removed the unusual limitation in the Windows version of the Safari EULA, everyone that installed Safari on a Windows machine was a EULA violator and a criminalnamely, they were guilty of piracy.
No. That was a human error.
Laws are made in order to provide FAIR. Not in order to find guilty people.
Which means, if an entity thinks it has been treated unfairly can find protection on the law. Finding guilty people is a side effect of enforcing the right of the entity (person/people) that is complaining.
In that case, Apple made a mistake, because it placed the wrong user agreement. That's a human mistake, and there was no intention to do it.
Having or not having intention to do something is a very big deal in Law.
If we were computers, then everyone who agreed to that Safari Windows EULA was a wrong doer, but we are not.
And there was no case about it, because nor Apple, nor the client asked for a settlement.
It is very different in the Pystar case, because:
1. Pystar has intention.
2. Pystar is trying to trick the system.
3. Apple is complaining. Apple feels Pystar is violating its rights.
But, that's a controversial issue. How is it the case that I've sold a Sike-clone? My brown shoes without the Sike attachment aren't clones of any Sike shoes? How do they become clones of a Sike shoe when the Sike attachment is, well, attached.
Suppose two individuals cross paths in the park. One is wearing Sikes and the other is wearing a pair of flip-flops. They start chatting and the Sike-wearer asks the flip-flop-wearer if he wants to try out his Sike attachment. The flip-flip-wearer says 'yes' and attaches the Sike attachment to his flip-flops. Has the act of piracy been committed? Are the flip-flops now Sike-clones?
Just selling the Sike-shoes is copyright infringement. So it is bad.
However, you can sell just shoes that look a lot like the original, but they are a bit different and it is not copyright infringement. Unless, you, as the Sike creator can prove there is intention to rip off your product. Pystar did that, when they bundled copies, install them and advertise as Mac-clones.
Imagine, if Pystar sells its clones without telling anyone they are capable or running Mac OS X. No advertising shows it. However, one day, a user finds out they can.
Here, Pystar is innocent, unless Apple can prove Pystar is intentionally trying to rip Apple off. This case is more difficult, because Pystar can allege they did not know and Mac compatibility is a side effect.
But in this case is more than evident. Pystar wants to benefit from Mac brand, without incurring in the costs to develop the brand.
And about the Side-shoes trade. Yes, there is a violation of the EULA by the end user.
No, the flip-flops are not sike-clones, because they are flip-flops. They are not advertised as the real deal, even if they might look a lot like. You might say, they are "inspired".
That's the case of Windows vs Mac. Microsoft won because even though Windows looked a lot like the Mac, it was not advertised, not implied, not compatible with Mac. In fact, they were just look alike, and with an old cooperation agreement (stupidly signed by Apple years ago for another matter), Microsoft won. Apple, could not prove intention.
®
