As you may know by now, a company known as Psystar has announced they’re selling Mac “clones” for $549, complete with Leopard pre-installed. From a legal perspective, these machines clearly violate Apple’s OS X 10.5 end user license agreement (EULA). If you’re so inclined, you can find a full copy of all of Apple’s EULAs on this page–the 10.5 EULA is a 2.1MB download. The relevant portion of the EULA is section two, part A:
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. You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so.
Seems pretty black and white, doesn’t it? Use OS X in this manner, and you’re violating the EULA. So how can a company like Psystar hope to stay in business, given this legal transgression that’s key to their business model? Wired offers up some legal opinions on how they may be able to survive–basically, violating an EULA isn’t in nearly the same class of legal violation as is violating copyright or patent law. A breach of contract suit won’t prevent Psystar from selling their clones, and probably wouldn’t even serve as a financial deterrent: as one attorney notes in the Wired article, “the maximum damage Apple would be able to claim is the price of Leopard — actually, the OEM (original equipment manufacturer) price of Leopard, which might be a few dollars.” Another attorney comments that EULAs are problematic in court, as they’ve vague by nature. He says, “Companies make them as broad as possible but there’s no way to basically enforce them. It’s a scare tactic, a way to say, hey, we’re reserving all these rights.”
The Wired article is a good read, and notes that Apple’s best defense may be in technology, not the courts–future system updates may render cloned systems unusable, which will certainly cut down on Psystar’s ability to attract and retain customers. So that’s what the experts think. From where I sit, over in the “just barely passed the required business law class” section of the room, here’s my take on why I don’t think it’d be wise of Apple to bring their EULA into the court system.
Because they are so very broad, EULAs contain language that I just don’t see how any court would uphold. Consider the particular passage restricting how I use the software I’ve licensed from Apple. Who is Apple to say how I use the software I’ve paid for? If you accept that Apple can include a statement limiting OS X to installation on an “Apple-labeled computer,” then where does the line get drawn? Couldn’t they then just as easily include these terms:
- You agree not to install or use any release of Microsoft Office.
- You agree to only use OS X between the hours of 7pm and 10:30pm, GMT.
- You will send quarterly reports detailing your use of OS X.
- You agree not to ever play a game on your Mac, because games waste time.
- You agree to sell any machines you own that run any variant of Linux or Windows.
You get the idea; if Apple is allowed to dictate on which machine I install the software, why can they not dictate just about anything else they want to, even if such restrictions sound ludicrous on the surface? Who determines what a company can and cannot dictate about how it’s software is used? As a real world example, I imagine that nearly every OS X user has violated the OS X EULA in some way. How can I say that? Because one section contains this line:
Except as and only to the extent permitted by applicable licensing terms governing use of the Open-Sourced Components, or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Apple Software or any part thereof.
Have you ever duplicated an Apple-bundled application? Ever stuck a custom icon on an Apple-bundled application or folder? Modified an Apple-bundled program’s menus or language files? Ever used the strings command in Terminal to find what interesting words and phrases may be hidden within an Apple-bundled program? If you can answer yes to any of these questions, then congratulations–you, too, have violated the OS X EULA. Part of me actually hopes Apple does take Psystar to court over the EULA; I really would like to know just what it is a company may or may not include (and enforce) in its EULA.
I think the lawyers in the Wired article got it right, however–Apple’s not going to fight this one over the EULA. They’ll find a patent or copyright issue to fight over, or they’ll just rely on the fact that future changes in Leopard may cause issues for those who purchased clones. Whatever happens, it’s going to be an interesting few months in the world of Mac hardware.