Filed under: Apple Corporate, Hardware, OS
German Mac clone maker claims it won't face Psystar's legal troubles
Matthias Kremp, of German periodical Der Spiegel, has an interesting story about PearC, "Der PC mit Mac OS X." You don't need Google Translate to figure out what that means, though a mechanical translation of the story is available here.
PearC is offering three flavors of Mac clones in Germany, starting at €499. All of the options are built to order: The Starter edition can be equipped with anything from an Intel Pentium Dual Core E2200 to a Core 2 Duo E7300. The Professional version, though, starts at €1,499, and can be powered by a 3.2GHz Intel Core i7 Extreme processor for an extra €720 -- a processor that Apple does not offer. PearC also offers Blu-Ray optical drives as an option.
All come with the option to install Mac OS X. Kremp notes that PearC's parent company, Hypermeganet, says that since the End User License Agreement (EULA) is sealed inside retail copies of Mac OS X, there's no legal way to review the EULA. If you'll pardon the bad translation, "the restrictions that Apple [has] for its Mac OS X in the EULA [...] in Germany [has] no legal explanation," said Hypermeganet spokesman Dirk Blößl.
"Hypermeganet assumes, therefore, that the product (meaning the Mac clone) in Germany is legal," he says.
Similarly, Psystar, possibly bankrolled by a larger PC clone maker, is defending itself now against charges that it violated Apple's EULA by selling clones with Mac OS X. That dispute is ongoing.
Apple did not return Spiegel Online's request for comment. However, Kremp concluded by suggesting "one may probably assume" that Apple will pursue legal action against the clone maker.
Thanks, Hauke, Holger and Martin!
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Reader Comments (Page 1 of 2)
Michael R Johnson said 11:46AM on 2-06-2009
"Hypermeganet, says that since the End User License Agreement (EULA) is sealed inside retail copies of Mac OS X, there's no legal way to review the EULA."..."[and] assumes, therefore, that the product in Germany is legal."
Does this sound like flawed logic to anyone else?
Just because it's only provided "sealed inside", doesn't mean that you get to ignore it before installing. And they offer installation as an option. That means that at the Hypermeganet "factory", there are people (or machines) accepting the EULA during an installation that is forbidden by the EULA.
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Joseph said 11:53AM on 2-06-2009
Actually...I think it's a fairly good argument. They're saying that if Apple required an EULA to purchase the software, it would be valid. By the time you discover the EULA prohibiting these hackintosch machines, you've already voided your right to return the software. If you look below, I translated the article. It's rough, but I think it gives a little better perspective to their argument.
Tim said 12:09PM on 2-06-2009
It could turn into a court battle if they have enough money and time, but Apple would probably either win a slim victory, or the German company would run out of money due to legal expenses. After that, Apple would try posting the EULA on the back of the box, or maybe add a sticker with a URL to a page to read the EULA, just to cover themselves.
Joseph said 11:49AM on 2-06-2009
Aus der Sicht von Hypermeganet steht die deutsche Rechtsprechung auf der Seite des Mac-Kloners. "Endbenutzer-Lizenzverträge werden in Deutschland nur dann zum Vertragsbestandteil, wenn Sie vor dem Kauf der Software vereinbart wurden. Die Einschränkungen, die Apple für sein Betriebssystem Mac OS X in der EULA macht, haben daher in Deutschland keine rechtliche Bewandtnis", sagte Firmensprecher Dirk Blößl SPIEGEL ONLINE.
Translation: From the perspective of Hypermeganet, the German legal code is on the side of the Mac-cloning firm. "In Germany, EULAs are only legally binding when they are agreed to before the purchase of the software program. "As a result, the restrictions which Apple places upon its operating system OS X in the EULA have no legal standing," said firm spokesman Dirk Bloessl.
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atothej said 11:57AM on 2-06-2009
hm, not quite sure if Herr Kremp is mixing up "license agreement" with "terms and conditions". If the EULA is qualified as "terms and conditions" by German courts (and I don't see, why they wouldn't), then he might be right.
Still courts might get the idea that because he actually knows what the EULA sais, he intends to circumvent it via the law applicable to "terms and conditions" and forbid them from doing so (§ 242 BGB to the rescue ;-) ).
in any case this could be simply fixed by apple with a sticker on the box, but that would look bad, now wouldn't it?!?
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Jon said 12:01PM on 2-06-2009
I will be interested to see the EULA for Snow Leopard. I would imagine it will be carefully worded to nullify the current arguments by clone makers.
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Dave said 12:02PM on 2-06-2009
The SLAs are ALL available online:
http://images.apple.com/legal/sla/docs/macosx105.pdf
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Tim said 12:09PM on 2-06-2009
In theory, couldn't they just install the EFI emulation software on the hard drive and include a copy of OSX for people to install themselves, with a page of instructions to walk them through it? Then, the customers are at fault, not the company.
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Paradoxcis said 12:25PM on 2-06-2009
I was under the impression that in Germany a sealed EULA gives the consumer extended rights to return the purchase, but not to completely ignore it.
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colouroflight said 1:16PM on 2-06-2009
Why not just sell the machines preinstalled with an EFi-X unit, and declare them "bring your own OS X?"
Seems to me that would solve everything.
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basscadet said 11:26AM on 2-07-2009
yeah, that seems the safest way to go. Just announce that the generic PC configuration that my company sells is compatible with OSX and get over with. Why mess with actually selling the OS along?
Tim Rosencrans said 1:17PM on 2-06-2009
Will these morons ever figure out an EULA is an END user licensing agreement. It applies to the end user. Their operating as a OEM if they preinstall which means they would have to get there own license to do such.
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RogueFive said 11:28PM on 2-06-2009
couldn't agree more. If think Microsoft has lost every single case regarding the EULA in front of the German courts ... but PearC is hardly an end user. Will be interesting to see how this will play out.
Tim said 8:18AM on 2-07-2009
The point is, that the machines are custom build. Meaning you are not actually buying a ready-build machine, but instead buy the parts and pay for assembly and configuration separetly .. by that it is not OEM software.
PS said 2:53PM on 2-06-2009
Apple just need to add one little chip to the MAC's and then one day activate ( software update ) os-x to only work with that chip installed. Now that would be fun :-)
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Rich said 2:58PM on 2-06-2009
Thus soundly breaking all the existing Macs. Great idea! I love it!
The EULA says the software can only be installed on "Apple labelled equipment", or something to that effect.
So, take the sticker you get with OS X, peel the backing...
...and stick it to your forehead! You can now install Mac OS X on your face.
EULA isn't the law. It has to be supported by law. In this case, it's on shaky ground.
mike said 3:50PM on 2-06-2009
That is what their EFI does. Anything can and will be hacked.
James Madley said 4:08PM on 2-06-2009
They did have one of those little chips installed in the first Intel Macs but removed them because they weren't using them (they'd come with the boards).
James Madley said 5:15PM on 2-06-2009
Looking at my Leopard box now I'm guessing they haven't read the bottom of the box (as Pystar also hasn't).
"Important: Use of this product is subject to acceptance of the software license agreement(s) included in this package. Don't steal software."
In other words, whomever uses a boxed, wrapped copy of Leopard is still bound by the SLA.
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Firequake said 5:34PM on 2-06-2009
That and/or being able to read the license agreement somewhere on the Apple webpage does not validate the EULA in Germany. The EULA has to be presented to the buyer in whole before he buys software. If not, he is not bound by it.