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Psystar to Challenge Mac OS X EULA?
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Asimov is a definite maybe, but I've read a lot more of Bradbury.
EDIT:Google to the rescue, Martin Gardner, "The No Sided Professor".
http://www.skeptic.de/index.php?action=book&articleno=0155
EDIT:Google to the rescue, Martin Gardner, "The No Sided Professor".
http://www.skeptic.de/index.php?action=book&articleno=0155
Asimov wrote a lot of stories about robots, and is hailed as the creator of robot science fiction (created the three laws of robotics and all), so he might not have written that story.
Actually, if you buy the proper hardware, it's a takes a whopping 10-15 extra minutes to install a retail version of OS X on a non Apple branded PC vs installing it on a real Mac. Basically loading EFI V8.
This is using an unmodified install DVD.
Best of luck on the updates.
Pystar or whatever the hell their name is, is most likely doing this.
Also, there is nothing illegal about using a "pre-patched" install DVD as a master so long as you purchased a retail copy to ship with each installation. Apple gets paid.
How the hell do you think Dell, HP and the rest of them do it?
They don't load each Windows CD individually, they use a master image and then pack a license along with a method to restore that image with the finished product.
The problem is when people try and install OS X on there two year old POS and EXPECT it to work. Just not gonna happen without a lot of work.
The EULA is open for debate on enforceability as there is no existing case law to support whether they are even valid or not.
And for the last time, an EULA is a civil contract. You cannot be charged with a crime for breaking an EULA.
You can be sued, but there is nothing "illegal" about violating the terms.
Let's not confuse piracy and copyright infringement (both illegal acts covered by Federal law) with licensing terms (purely a civil agreement between two parties with no laws governing their application).
People seem to use the term "illegal" rather loosely regarding this topic.
Hmmm.... didn't Bush go to Yale?
"I'm no expert, but I know one..." is not a good way to convince an intelligent person of anything of consequence.
That's not what they're doing. They're not buying discs and selling them. They're installing software restricted to a specific vendor's products on their own products. This requires a license.
Yes, they most certainly can.
No, you don't understand, because you previously insisted that they'd have to be sued in Florida, and you're simply regurgitating terms in prattling around it. It clearly doesn't sink in. To wit:
No.
No.
Violation of their exclusive right. Just like trespassing.
Sure there is. It's right on the system requirements, right on the box, and multiple places in the EULA.
Only a complete dilettante would expect a black letter answer to a single-sentence prompt. If the EULA restricts playback devices, why does it do so? What concession is made to the consumer? What alternatives exist in the market?
If you have the experience you claim, then you should be able to indicate why. I won't hold my breath.
If they're using a software solution, then they're not shipping retail DVD licenses with the preinstalled hardware, voiding your entire premise, not to mention almost certainly falling afoul of the DMCA.
They're either shipping hacked DVDs or modified hardware. In either case, the machines are leaving the shop without a fully legitimate installation, as it stands. Your bogus interpretations notwithstanding, there is no conceivable "win" for Psystar in this action in anything other than media attention.
rjohnstone, thanks for being the 15th or 20th person tonight to jump into the middle of the conversation, pick one thing to fight about, and bring up an already dead topic. But since you bring it up again, I will re-discuss it. I agree if they are buying OSX then installing it then the only thing they are doing wrong is violating the EULA, which we have yet to find out in court if it is a valid contract. But if they are using a pre-hacked version that they downloaded from some torrent, which they most likely are doing based on the price, then they ARE doing something ILLEGAL! Also like I mentioned earlier you are again correct you can check out the support forums on OSX86 and find supported hardware then install OSX relatively simple, most people don't know the first thing about these kinds of projects though. Then at any time Apple could change something that would break the hacks. Thats not to big of a deal for you or me. Im assuming you are at least somewhat knowledgeable. But a majority of people wouldn't know what to do. Since its not a supported version Apple wouldn't touch it will a 10 foot pole. Most people couldn't fix it themselves, heck people cant even install there own ram anymore.
Your whole argument is based on the assumption that they are using an illegally downloaded install source.
Given our obvious lack of knowledge on how to build a "hackintosh", you fail to understand that this is not required.
Making your own patched master install disk takes about an hour tops.
I doubt these guys are your average end user, I highly suspect that they built their own from a legally purchased install DVD.
And to those who say you cannot purchase OS X without owning or buying a Mac first, I call BS.
Walk into any Apple store and grab a retail box install of OS X.
They don't ask for proof that you own a Mac or require that you purchase a Mac to install it on, all they want is your money.
I bought my DVD online from Apple from my Windows PC.
All Apple cares about is getting paid.
The following, written by a "An Ex-OSx86 Contributor" and posted on Psystar's forums yesterday, provides a bit more detailed explanation on the "patching" process:
Edited to add:
"DCMA" is an apparent typo. I think it's safe to assume the author was referring to: DMCA
Edited (again) to add:
A bit more about the "Don't Steal Mac OS X.kext" from something on another forum (posted in 2006) ...
The platform restriction is a condition of the EULA. Whether or not the EULA applies to PsyStar is the issue I have raised from the beginning. It will take a court to decide if the EULA applies to PsyStar.
Nothing in the EULA states that if you want to install the software on a non-Apple computer that you need a license. Where does Apple state that a license is needed?
I’m glad that you agree that PsyStar can buy a copy of OSX and then legally sell it to one of their customers.
While Apple certainly can sue PsyStar for selling their product in Florida, what I meant was “Apple can’t do that in Florida and prevail”. Sorry for not making that clear.
Whether I prattled around or not has no bearing on the personal jurisdiction issue facing PsyStar. I wrote “Apple can sue PsyStar in California. The court will have to find that they have personal jurisdiction over PsyStar. Apple can argue that the California court has jurisdiction over PsyStar based on the forum selection clause in the EULA. The court may find that PsyStar has a business presence in California that gives the court jurisdiction. In any event, the court will determine if it has jurisdiction or not.” I stand by what I wrote. I assume that you agree.
Thanks. How would a California court convert that into a dollar ammount?
While your argumentum ad hominem is well written, you avoided answering the question. Logically your answer is no and I thank you for making my point.
American Rule. The courts do not want to suppress the rights of individuals to sue.
I never said that there is a win for PsyStar. In my initial post I state that I thought Apple would prevail.
My point is that if Apple chooses to take action against PsyStar using the EULA, it has to get a court to find that PsyStar is bound by the EULA and that a material breach has occurred. This is not as simple as many have made it out to be.
I also stated that we don’t know if the PsyStar computer with OSX exists. Right now it seems to be vaporware. There is no legal action by either party. It is all speculation. While you are cirtainly free to consider my point bogus (and I can also do likewise), we won't realy know who is right until Apple sues and the case is settled. That could be years from now.
Until there is a legal action taken by either party or an actual PsyStar computer with OSX is found. there is no use continuing this debate. Apple has many ways to deal with PsyStar and we will just have to wait to see what, if anything, they will do. Thanks!
Here is to everyone that says that EULA's are unenforceable.
The law of contracts is the law of promises. Long before computers were invented, people were making promises. At some point, the law had to designate which promises it would enforce and which promises it would let slide. The former are called "contracts." That is, a contract is simply a legally enforceable promise.
To have a contract, you have to meet certain elements. I refer to the terminology of my professor and renown expert, John E. Murray, Jr., author of Murray on Contracts, a first year law student's bible on the matter. To have a contract, you must have 1) an offer, 2) an acceptance and 3) a validation device, most often, consideration.
The offer and acceptance parts are quite simple the vast majority of the time. Usually one party says "I will provide you with X if you provide me with Y," which qualifies as an offer. The other party says "I agree" and the deal is done. Consideration is sometimes a little bit tricky, but in order for a contract to be valid, there must be a bargained for exchange. Lack of consideration is why gift promises, even in writing, are not enforced. I say "I agree to give you $100 because I love you." We put it in writing signed by 10 nuns, each of which testify that I fully intended to give you $100. That is not a contract because there was no bargained for exchange of value. Promises to make gifts are simply not a type of promise that the law chooses to enforce.
Ok, so lets look at the typical EULA to see if it's a contract. The gaming company makes you and offer to play the game. In exchange for playing the game, you must agree to pay a fee each month and follow the EULA. That is the offer. You accept the offer by clicking "I Agree" when you log in. You technically do not need to do it each time that you log in, but most companies do this simply to remind the consumer that it is bound by the agreement (and to provide notice of any modifications). The promise is supported by consideration, namely the company permits you access to the service, and you pay the fees.
Tada, contract! So, what is all the fuss about? Well, you see there is good reason for confusion.
When software companies first started, it was easy. They had a product that they made. They wanted to license it to someone else to use, so they drew up an agreement, and said "sign on the dotted line." Those were the early EULAs and they were no doubt enforceable. But then software companies wanted to make its product easy to buy, so they threw it in a shiny box and popped it on a shelf. They certainly couldn't ask the clerk behind the counter to execute contracts for them, so they simply tucked it inside the shrink wrap and included "acceptance language" stating "by opening this box, you agree to these terms."
Wow, now wait a minute here?!? There is something messed up with the timing of the whole thing. It doesn't jive with standard contract formation process. So, I pay the fee, get the thing that I paid for home, open the box, and accept the offer before I see it? Hmm. Well that didn't make much sense, and judges weren't really familiar with how this whole thing worked, so cases came down that said these types of agreements, shrink-wrap "EULAs," are not enforceable. They aren't enforceable because they do not meet the elements of a contract.
But wait again! Some smart guy decides "this is great" and he goes and buys a piece of software that contains something like a telephone directory of the entire United States. He rips the contents off the CD and makes his own CD that does the same thing, and competes with the original company. The original company says "we will see about that" and the ProCD case is born. In that case the court determined that EULAs are enforceable because everyone knows what's in them, and everyone reasonably should expect to be bound by certain terms and conditions. Later cases came out, however that said EULAs are a special kind of contract that comes with certain restrictions. Companies that use EULAs must make sure they are "reasonable." There is a lot of case law defining what is reasonable. Some particularly hot topics are "choice of forum clauses," "indemnification provisions" and "liquidated damages provisions." All of these fall into the "it depends category." So, if you call a lawyer right now and say, are EULAs enforceable, he will likely get into the above and his final answer would be "it depends, but in some cases the only way to tell is to go to court."
Don't stop reading now! If you were paying attention above, you should have a few questions. Do you remember way at the top when I talked about how the first EULAs operated, via the traditional contract process in signed agreements. Well, does that exchange sound familiar to you? Of course it does. It is exactly what happens when you log in to play a mmog. You are presented with an EULA (more appropriately called a Terms of Service Agreement) before you pay for the service. You are alerted to the fact that the game is an online game subject to having a subscription on the outside of the box (which, incidentally, have been enforced even when the inclusive shrink wrap EULAs were not).
What does all of this mean? Well, I am sure you're bored by now, so I will summarize. If you ask an attorney about EULAs, he or she will likely say "they are enforceable, but there are some caveats." If you ask him about a terms of service agreement that you "sign" by clicking "I agree" each time you log into a service, he will likely say "that sounds pretty good to me." He will be right on both accounts. So, once again, true shrink wrap EULAs have been tested in most major jurisdictions and are valid contracts, subject to certain limitations. Terms of Service contracts, like the "EULA" found in MMOGs, are simply enforceable. There is a common perception that EULAs have not been tested in court. This is incorrect. They have been. In fact, very recently Blizzard's EULA was enforced in two separate cases and relief was granted based on the EULA's terms.
"EULAs" for mmogs meet the elements of contract formation, so even absent case law (which there is), they are the type of promise that we call a contract.
Does this solve the issue regarding virtual profiteers? Not entirely. It is not meant to. I simply want to clarify some misconceptions about EULAs themselves, and not any of the terms therein."
The law of contracts is the law of promises. Long before computers were invented, people were making promises. At some point, the law had to designate which promises it would enforce and which promises it would let slide. The former are called "contracts." That is, a contract is simply a legally enforceable promise.
To have a contract, you have to meet certain elements. I refer to the terminology of my professor and renown expert, John E. Murray, Jr., author of Murray on Contracts, a first year law student's bible on the matter. To have a contract, you must have 1) an offer, 2) an acceptance and 3) a validation device, most often, consideration.
The offer and acceptance parts are quite simple the vast majority of the time. Usually one party says "I will provide you with X if you provide me with Y," which qualifies as an offer. The other party says "I agree" and the deal is done. Consideration is sometimes a little bit tricky, but in order for a contract to be valid, there must be a bargained for exchange. Lack of consideration is why gift promises, even in writing, are not enforced. I say "I agree to give you $100 because I love you." We put it in writing signed by 10 nuns, each of which testify that I fully intended to give you $100. That is not a contract because there was no bargained for exchange of value. Promises to make gifts are simply not a type of promise that the law chooses to enforce.
Ok, so lets look at the typical EULA to see if it's a contract. The gaming company makes you and offer to play the game. In exchange for playing the game, you must agree to pay a fee each month and follow the EULA. That is the offer. You accept the offer by clicking "I Agree" when you log in. You technically do not need to do it each time that you log in, but most companies do this simply to remind the consumer that it is bound by the agreement (and to provide notice of any modifications). The promise is supported by consideration, namely the company permits you access to the service, and you pay the fees.
Tada, contract! So, what is all the fuss about? Well, you see there is good reason for confusion.
When software companies first started, it was easy. They had a product that they made. They wanted to license it to someone else to use, so they drew up an agreement, and said "sign on the dotted line." Those were the early EULAs and they were no doubt enforceable. But then software companies wanted to make its product easy to buy, so they threw it in a shiny box and popped it on a shelf. They certainly couldn't ask the clerk behind the counter to execute contracts for them, so they simply tucked it inside the shrink wrap and included "acceptance language" stating "by opening this box, you agree to these terms."
Wow, now wait a minute here?!? There is something messed up with the timing of the whole thing. It doesn't jive with standard contract formation process. So, I pay the fee, get the thing that I paid for home, open the box, and accept the offer before I see it? Hmm. Well that didn't make much sense, and judges weren't really familiar with how this whole thing worked, so cases came down that said these types of agreements, shrink-wrap "EULAs," are not enforceable. They aren't enforceable because they do not meet the elements of a contract.
But wait again! Some smart guy decides "this is great" and he goes and buys a piece of software that contains something like a telephone directory of the entire United States. He rips the contents off the CD and makes his own CD that does the same thing, and competes with the original company. The original company says "we will see about that" and the ProCD case is born. In that case the court determined that EULAs are enforceable because everyone knows what's in them, and everyone reasonably should expect to be bound by certain terms and conditions. Later cases came out, however that said EULAs are a special kind of contract that comes with certain restrictions. Companies that use EULAs must make sure they are "reasonable." There is a lot of case law defining what is reasonable. Some particularly hot topics are "choice of forum clauses," "indemnification provisions" and "liquidated damages provisions." All of these fall into the "it depends category." So, if you call a lawyer right now and say, are EULAs enforceable, he will likely get into the above and his final answer would be "it depends, but in some cases the only way to tell is to go to court."
Don't stop reading now! If you were paying attention above, you should have a few questions. Do you remember way at the top when I talked about how the first EULAs operated, via the traditional contract process in signed agreements. Well, does that exchange sound familiar to you? Of course it does. It is exactly what happens when you log in to play a mmog. You are presented with an EULA (more appropriately called a Terms of Service Agreement) before you pay for the service. You are alerted to the fact that the game is an online game subject to having a subscription on the outside of the box (which, incidentally, have been enforced even when the inclusive shrink wrap EULAs were not).
What does all of this mean? Well, I am sure you're bored by now, so I will summarize. If you ask an attorney about EULAs, he or she will likely say "they are enforceable, but there are some caveats." If you ask him about a terms of service agreement that you "sign" by clicking "I agree" each time you log into a service, he will likely say "that sounds pretty good to me." He will be right on both accounts. So, once again, true shrink wrap EULAs have been tested in most major jurisdictions and are valid contracts, subject to certain limitations. Terms of Service contracts, like the "EULA" found in MMOGs, are simply enforceable. There is a common perception that EULAs have not been tested in court. This is incorrect. They have been. In fact, very recently Blizzard's EULA was enforced in two separate cases and relief was granted based on the EULA's terms.
"EULAs" for mmogs meet the elements of contract formation, so even absent case law (which there is), they are the type of promise that we call a contract.
Does this solve the issue regarding virtual profiteers? Not entirely. It is not meant to. I simply want to clarify some misconceptions about EULAs themselves, and not any of the terms therein."
Psystar a Hoax
Idunno if anyone saw this, but it looks like Psystar was just a load of crap, anyhow!
http://gizmodo.com/380488/psystar-exposed-looks-like-a-hoax
Idunno if anyone saw this, but it looks like Psystar was just a load of crap, anyhow!
http://gizmodo.com/380488/psystar-exposed-looks-like-a-hoax
I think these guys don't know what they are doing to tell you the truth. They saw a need and tried to fill it as best they can, but they are going to run into a world of issues support wise.
It's bad enough that Apple gets bashed for not fixing the many bugs in Leopard, now these guys have to make sure Apple's bugs don't take out the Hacked system, and that Apples fixes don't take out their hacked system as well.
I agree that Apple will sell a DVD of Leopard without the need for a Mac... it's no update disk.
Personally, there is no way those guys can sell a machine that cheap, and have non-retail copies of OSX. They will have to become Apple Authorized Resellers, or grab hacked/pirated version of the software.
Well I agree with almost everything you say. Except however it IS an update. Just refer to my post a page or 2 back. Its right on Apple.com It is an update to the OS that comes pre installed on all Mac computers. Apple charges for the major updates, ie 10.1 10.2 and so on. While they give free updates for minor updates and bug fixes. At least that is how the system is designed. You are suppose to own a Mac to install OSX on and that Mac came with an OS pre installed. ie its an update to your OS. However part of that gets into EULA. By that I mean Apple can classify it as an update as long as it is only installed on Apple hardware because all Apple hardware is pre installed with their OS. However if it is ruled (I cant see it happening based on all my other posts with evidence) thats Apple cannot force Apple hardware to install their OS then it could become a full install instead of an upgrade. Either way whatever the court would decide if this happened, they couldn't make apple add support for non apple hardware. Like i've said before, it would be a catastrophe for apple if they had to open their os. I love the stability of my Apple and the only reason it is so stable is because they only support limited hardware.
No, it's not. It's an issue of devolution of rights. It is written in the EULA, but that is not the only source of the restriction. Apple has never sold OS X for anything other than Mac hardware, and every license, statutory and contractual, they have ever issued is for the Macintosh platform. They have never assigned, sold, or otherwise granted the use of their property on other platforms to other businesses or to end users.
That's because it specifically says that you can't do that.
If you want to do something commercially with someone else's property, and it's not granted by law, you need a license, because you're infringing on rights that they possess, which is actionable unless licensed. It's as simple as that. Whether it's candy bars or software, there are limits on businesses acting in this manner.
This is (a) wrong (b) not any more clear and (c) irrelevant to anything you previously stated.
No.
No.
Most emphatically I do not. You have completely fumbled this topic. Choice of law and PJ are separate. Business presence is not required.
If you had any clue about what you were talking about, you'd know the statutory model for doing so. Since it's not a state law claim, a "California" court is irrelevant.
No, the answer is, for the third time now, it depends. Your half-sentence hypothetical does not contain sufficient information to make a determination. You're just asking to be set up if you expect a yes or no answer to an incomplete fact pattern.
You're on the right track, but you're forgetting a huge factor here, unless Florida has left the 11th District and not told anyone but you.
No. That is one possible claim, but not a necessary one, nor is it the most obvious. You see, they either need the EULA to protect themselves or they need to admit to unlawful distribution.
No court case has ever been thus decided. If you're referring to Gateway or Step-Saver, you've construed the holding far too broadly.
Careful. The problem is that the provision(s) in question was not part of the bargain, either by industry custom or by a reasonable expectation. The most common "problem term" is an arbitration clause, because it removes an offeree's right to redress through the courts. Alternatively, an issue arises out of the disclosure of the terms, though this largely stems from a few-year gap in the 1990s where consent was requested out of order with review of the terms or without having direct access to the terms (which is why EULAs now have prominent placement instead of a break-out link to view the terms you had just then agreed to). With modern software and the universal availability of EULAs for review prior to purchase, this is no longer an issue.
Otherwise, your basic conclusion that EULAs are enforceable with certain caveats (binding arbitration, "surprise" terms, certain waivers, etc.) is correct.
I agree with you that Apple calls their releases "updates", but in the true sense of the word, an update requires the existence of a previous version so it can be "updated".
The retail version that Apple sells has no such limitation. It can be installed on a computer that lacks any OS what so ever.
The installation process does not require you to insert the install disk of a previous so that it can perform the installation on a clean system.
Apple is simply "labeling" it an update when in fact it is not.
The point releases are in fact updates. Installing the 10.5.2 Combo Update for example, REQUIRES the existence of the base OS version 10.5 where installing 10.5 does not require that 10.4.x be present.
I think the horse is dead on that topic.
I also agree that no court can force Apple to open their OS.
I would like to see Apple officially allow the OS to be installed on other hardware even if they do not provide official support for non Apple branded hardware.
Let the HW vendors write and support their own drivers.
But I don't see that happening either as long as Steve is running the company.
I love the conspicuous use of the term computer rather than the labeled requirement of a Mac.
Just thought I'd point that out... carry on with your fantasy logic. Just be aware that wishful thinking doesn't change the facts... no matter how hard you wish!
"Fantasy logic", aka "talk radio" logic, employed by mouth breathing hosts and callers who like to hear themselves, where one grasps tenaciously to a minor and/or completely irrelevant point, making it the central focus of an argument, and totally misses the forest for the trees.
If Apple did ever allow vendors such as Dell, HP or others to license a copy of OSX I would have to believe it wouldn't be the same cost currently paid for off the shelves.
With them catering to a high demand of people curious about OSX it seems that buying one of these machines would only lead to a lesser, probably more frustrating long-term experience compared to a real Mac.
With them catering to a high demand of people curious about OSX it seems that buying one of these machines would only lead to a lesser, probably more frustrating long-term experience compared to a real Mac.
Well, perhaps not "bye reliability." All reports indicate that once it's installed on supported hardware, OS X performs quite well and reliably. But "bye Mac Culture?" Sure. Who needs it? Not I.Bye reliability. Bye "Mac Culture."
(Posted from my Macbook Pro, btw.)
It will be interesting to see what happens...I'd have thought the likelihood is Psystar will simply run out of pennies for lawyers long before Apple even notice the dent in their petty cash tin.
Apple designs the cases, OS, PCBs, and hardware layout. The chips, fans, and drives are bought.