Will Psystar Represent A Key Case Concerning Enforceability Of EULAs?

from the let-the-lawsuits-begin! dept

A few weeks back, a company named Psystar made some news by offering to sell PCs with Mac OS X installed. This raised questions about how legit this offer was. After all, when Steve Jobs returned to Apple years back, he killed off all licensing deals that allowed any kind of Mac clones. However, the company has been showing off the clones it's created. Now, the questions are all about whether or not Psystar's actions are legal. The company (of course) says it is legal, and that it's buying a legal copy of the operating system and installing it on PC hardware. However, the end user license agreement (EULA) includes the following:
"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."
That would seem to preclude what Psystar is doing. The News.com article above does an excellent job laying out the legal issues here. While the courts have found various clickthrough EULAs enforceable (even though no one -- including the companies themselves seem to read through them), it's possible that Psystar could attack the EULA from other directions. As the article notes, it could try to use the first sale doctrine (which allows you to resell copyrighted products you've bought) but that likely won't fly. What may be most effective (even if it's still a long shot under the law) is to claim that the EULA illegally "ties" the software to Apple's own hardware. However, making a claim about tying is quite complicated, and it seems unlikely that Psystar would prevail. This seems unfortunate for the market -- as getting some additional competition into the market would only help drive innovation. But, under the current law, it's difficult to see how Psystar can win.

Filed Under: apple os, eulas, first sale, license agreement, tying
Companies: apple, psystar


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  1. icon
    GeneralEmergency (profile), 5 May 2008 @ 11:32am

    The meaning of the word 'is' is attack...

    Before recently building an intel based "Hackentosh" computer at home I too read this provision in Apple's EULA.

    So I went to the box my iPhone came in and I pulled out the Apple Logo sticker they included, and I slapped it on the side of the Shuttle case. "There!", I exclaimed, "An Apple-labeled computer if ever I saw one."

    I think the language of the EULA is deliberately imprecise because the lawyer who wrote it likely was thinking of the IBM anti-trust kerfuffle that prevented hardware and software tying. An EULA more precisely worded would say Apple-manufactured. But see, he was clever because he realised there was a greater pitfall here in trying to produce a computer that complies with the SW license (Apple-labeled), yet still avoids Trademark infringement, which is easier to attck legally.

    PsyStar is sidestepping this strategy and forcing the issue on the EULA's weak tying.

    Another thought:

    If copies of OS-X come with an Apple Logo sticker too, PsyStar could sell the PC with a naked HDD, a retail OS-X and a bootloader DVD and the following instructions:

    1) Open Retail OS-X box, remove Apple Logo Sticker and apply to computer case. Write "Apple" on logo sticker.

    2) Insert Bootloader DVD, start computer.

    3) Face Cupertino, Raise middle finger.

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