Filed under: Analysis / Opinion, Software, Snow Leopard
Snow Leopard: In EULA we trust
Just before the release of Snow Leopard, Uncle Walt Mossberg did the unthinkable by writing that the $29 Leopard upgrade:
"will work properly on ...Tiger equipped Macs, so you can save the extra $140."We reported that as well but didn't have all the facts verified at the time. Gizmodo likened Walt to a pirate and guessed that he'll have to apologize or at least clarify his position.
Now, after buying the family edition, I have done every sort of installation known to man and have the facts. It seems that Walt was right, but he didn't tell you the whole story. You can take the $29 upgrade disc and install it over Leopard, over Tiger, or over a freshly formatted hard drive. The disc doesn't care. Regardless of whether you pay $29, $49 or $169, you get the same disc with the same capabilities.
But just because you have a disc, if you use it for a purpose not intended upon purchase, you are breaking your agreement with Apple. The contents of the disc are the property of Apple and how that intellectual property is to be used is determined by the EULA (End User License Agreement) that you agree to before installation.
For each method of purchase the EULA is different. For the $169 package which includes iLife '09 and iWork '09 this is what you agree to:
"A. Single Use License. Subject to the terms and conditions of this License, unless you have purchased a Family Pack or Upgrade license for the Apple Software, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-branded computer, or to enable others to do so. This License does not allow the Apple Software to exist on more than one computer at a time, and you may not make the Apple Software available over a network where it could be used by multiple computers at the same time."
Clear enough. You can use it on one computer. It doesn't say that you need any operating system to start with. I would assume that you can put it on as many hard disks as you want, as long as you only use those hard disks with one specified computer.
For the $229 Family Pack which also includes iLife '09 and iWork '09 here's what you are able to do according to the EULA.
"B. Family Pack License. If you have purchased a Family Pack license, then subject to the terms and conditions of this License, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on up to a maximum of five (5) Apple-branded computers at a time as long as those computers are located in the same household and used by persons who occupy that same household. By "household" we mean a person or persons who share the same housing unit such as a home, apartment, mobile home or condominium, but shall also extend to student members who are primary residents of that household but residing at a separate on-campus location. The Family Pack License does not extend to business or commercial users."
Again, no previous operating system is required. You can install all three discs on five computers under the same provisions as the single user boxed set.
For the $49 Family Pack, and the $29 single user upgrade, you only get the Snow Leopard disc and can install under the following provisions:
"C. Leopard Upgrade Licenses. If you have purchased an Upgrade for Mac OS X Leopard license, then subject to the terms and conditions of this License, you are granted a limited nonexclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer as long as that computer has a properly licensed copy of Mac OS X Leopard already installed on it. If you have purchased a Family Pack Upgrade for Mac OS X Leopard license, then subject to the terms and conditions of this License, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on up to a maximum of five (5) Apple-branded computers at a time as long as those computers are located in the same household (as defined above), are used by persons who occupy that same household, and each such computer has a properly licensed copy of Mac OS X Leopard already installed on it. The Family Pack Upgrade for Mac OS X Leopard License does not extend to business or commercial users."
The provisions are the same with one marked difference. For you to be in compliance, either your one or five computers, depending upon your purchase, are required to run a version of OS X 10.5.
When you click 'agree' you have fulfilled your part of the contract with Apple and agreed that you will do the right thing. Just because you can do more with the disc doesn't mean that you are legally allowed to do so.
Should Uncle Walt, and those that jumped on that bandwagon, be sanctioned or sued for giving out the secret password? Absolutely not. Mossberg, in doing his job as a reporter, reported on what he discovered. He did not say it was legal, or illegal, he did not say whether it was ethical or unethical. He reported, and a reporter reports.
Not following the EULA is breaking the contract that you willingly agreed to follow. If you do decide to go rogue on your own, are you going to get caught? Probably not, but that's not the point. The point is that Apple (and I would think the great majority of the world) expects people to act in an ethical manner and amazingly enough, most people do just that.
Apple has been selling five user Family Packs of its operating systems for as long as I can remember and never has one been copy protected or restricted in any way. As far as I can tell the Family Packs were the same disc as the single user disc.
This, I imagine, saves lots of money for Apple since they only have to press one disc. It also works well for the vast majority of Mac users who are different than we are. They can't name everyone who signed the case of the Apple ][GS. I can, and I'm sure that many of you can as well. The majority are are consumers, not hobbyists, fanatics or fanboys. If they want to upgrade, they buy what the nice person in the orange shirt suggests and are happy with their purchase.
For the rest of us, which I have to believe constitutes an infinitesimal fraction of the Macintosh user base, I would bet money that the great majority of those, in the know, also do the right thing. I wouldn't consider buying the $29 upgrade and putting it on my four Macs all running Leopard any more than I would consider shoplifting, which for all intents and purposes is the same thing.
So the dirty little secret is out and I'm sure it surprises no one. The next time you buy intellectual property, regardless of how it's packaged, read the EULA. For most of us this would be a first. I for one never read them. I just scroll down as fast as I can and click on 'agree' to get to the goodies, but perhaps this case will change things a bit. I wouldn't sign a contract I didn't read and maybe it's time for this behavior to filter down to intellectual property.
Let us know your feelings on this potentially sticky situation.
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Reader Comments (Page 1 of 5)
vandil said 9:12AM on 9-03-2009
It's been beaten to the death already: Yes, there are going to be tons of Snow Leopard users who purchase the $29 "version" and install it on every Mac that have access to, regardless if its current OS (or lack of an OS), or probably even a hackintosh.
Sadly, it's just what people are going to do. The reduced pricing was a good move on Apple's part, but people are still going to do what they will do.
Some people just don't care, some people do.
I picked up the Family Pack even though I installed Snow Leopard on only two computers. I like to keep my karma in balance. But whatever.
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Le Big Mac said 9:46AM on 9-03-2009
Too bad Apple doesn't want to offer honest people without Leopard an OS X Tiger->SL upgrade without the additional purchase of iLife and iWork.
Ryan Trevisol said 10:57AM on 9-03-2009
I put it on my iMac, 13" MBP, and my work iMac, because the last two are owned by my employer and they already have a software upgrade contract with apple. We just haven't gotten the discs yet. I'll be in compliance with the EULA in a week or so. ;-)
mabhatter said 11:53AM on 9-03-2009
"Too bad Apple doesn't want to offer honest people without Leopard an OS X Tiger->SL upgrade without the additional purchase of iLife and iWork."
But it is the same. After all, Apple wants you to have the updated iLife for a "complete" experience (and if you have Tiger you're two iLife versions back anyway). So they released the Box Set back in January with Leopard, iLife & iWork .. one of those is basically free as the previous upgrade price of Leopard was $129 and iLife was $49.. the box set is only $169.
it's STILL cheaper than an upgrade of Windows Vista/Win7 Business (and you have to count business or ultimate as OSX is not feature crippled for business like Win Home is)
I do agree with the point of the article though. Mossberg is an actual reporter in the WSJ... not a blogger.. he needs his hands smacked for promoting "casual" license breakage... corporate masters should not be happy about that.
Tironius said 4:01PM on 9-03-2009
I like how people turn this into a *moral* issue. It isn't. I didn't sign a contract with Apple. I made no agreement with them. I *purchased* a box from a store, and I'll do what I want with it. They gave Snow Leopard's installation CD the ability to install anywhere, and then expect people to not use it, to give them more money, and basically forfeit their autonomy. Those people hold no obligation to do anything of the sort.
JD said 4:35PM on 9-03-2009
Until EULA's are upheld in US law as binding contracts, they are not contracts, they are not laws, and they don't even have any moral authority, unless you happen to agree with them. I can decide that every time you take a piss, you are agreeing to give me a thousand dollars, but unless a court upholds that "contract," it's just wishful thinking. That's what EULAs are right now. So until it becomes established by the US legal system that they are, indeed, legally binding contracts, they're just pieces of paper making absurd and threatening claims. Ignoring them is not just ok, it's the right thing to do.
SweetBlue said 5:12PM on 9-03-2009
@Tironius,
Your logic is unsound. Debunking it as a "moral" issue, then proceeding to explain why your position is "right," still posits right and wrong in relation to the issue, thus making your argument a moral one. It's self-defeating; much like saying, "There is no such thing as an absolute," where-in said statement itself is an absolute.
Not to say I disagree with your judgement on the issue; to wit, I'm not sure Apple really cares… I feel their endgame with SL is to bring as much of their user base "up to date" as possible.
Cheers.
Dan Woods said 7:04PM on 9-03-2009
"Too bad Apple doesn't want to offer honest people without Leopard an OS X Tiger->SL upgrade without the additional purchase of iLife and iWork."
The Irony is that neither iLife or iWork are optimised to take advantage of Snow Leopard's 64-bittedness.
Back on Topic;
I too stretch the EULA by using a Family Pack to upgrade my Brothers and Sisters iMac and MacBook.
While I could argue that the MacBook spends at least some time under my roof, the iMac is in the next suburb over…
Anderson said 1:45AM on 9-04-2009
I bought the Family Pack not only to "do the right thing", but also because I appreciate the fact that Apple shows trust in the honor system and its customers. Otherwise, we'd have to deal with crappy DRM that bring potential false positives and having to authorize every little change. My purchasing of the Family Pack is a vote for not spending money on DRM and putting faith that the majority of people are honorable. There always will be pirates, but usually DRM causes more problems for legit customers and lost investment on the part of the developer.
VanillaSpice said 12:36AM on 9-04-2009
"I didn't sign a contract with Apple. I made no agreement with them. I *purchased* a box from a store, and I'll do what I want with it."
You are completely wrong. You didn't sign on purchase, but you DID sign a contract - the EULA - when you hit that "Agree" button in the installer.
Think about what you've bought - a physical disc, with some IP on it. The disc is yours, the IP is not (you didn't buy the IP). You did buy a licence to use the IP, and therefore you are bound by the licence if you want to use the IP - the only way to legally access the IP is by accepting the licence.
Buying the disc, and not signing the contract slash agreeing to the licence, means you can do what you want with the disc but you absolutely cannot do what you want with the IP, you did not buy it, you do not own it, and you've refused to sign a licence would allow you to access and use it.
"Until EULA's are upheld in US law as binding contracts, they are not contracts, they are not laws, and they don't even have any moral authority"
Again, that is completely wrong. Many EULAs have been tested and upheld in US courts in their entirety (see the Wikipedia entry on EULAs). Only a few specific kinds of EULAs have been found to be non-binding by a court and this is definitely not one of those kinds of licences.
In any case, the actual situation is, you've signed a contract, no doubt about it. And until a court rules the contract (or specific terms of it) invalid, it is valid, it is binding. So you have it backwards. It is actually a binding contract (you've signed it, remember) until a court says that it is not.
Till said 9:23AM on 9-03-2009
I got Snow Leopard for 29€ in a German Apple Store and nothing on the box says that it is only an upgrade or that Leopard is required (but maybe the German version is different?)
I have to admit that I didn't read the EULA because it is way too long.
Not that it matters - I do have Leopard.
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Till said 9:43AM on 9-03-2009
I would like to add that I checked the invoice and it says
"Max OS X Snow Leopard 10.6"
No mention of the word "upgrade".
Article number is MC223D/A
David Winograd said 10:42AM on 9-03-2009
The box of the American version doesn't say 'upgrade' either.
All it has is a small sticker saying it's the Family Pack.
Till said 12:33PM on 9-03-2009
the sticker on the bottom of my snow leopard box says "MAC OSX V10.6 RETAIL"
Pixelmatsch said 6:16PM on 9-03-2009
Luckily, us German end-users, are not bound by any EULA from anyone*, so we don't have to worry about such things...
*Yes, there are court decisions on that.
Brian E said 9:24AM on 9-03-2009
I'd love to see some coverage of the other EULA provisions as well. The clause which allows only one backup copy of the software is quite onerous. It means, for instance, that if you run out of room on one backup disk, you can't copy your Time Machine backups to a larger disk - because at the end of that process, you'd have two backup copies, and that's not allowed. You have to *move* the files, and if for some reason the new disk dies halfway through, them's the breaks. It also forbids keeping an offsite backup if you use Time Machine locally, and makes it much more difficult to upgrade your hard drive.
Here's the kicker: if you ever *did* make more than one backup copy of Leopard, your right to use Mac OS X was terminated automatically. You don't have a "properly licensed copy" anymore, and so you aren't eligible for the Snow Leopard upgrade (technically). Using the upgrade disc on a computer that's had more than one backup copy of its hard drive made is the same as using it on a Tiger computer, which means that there are a lot of EULA violators out there who didn't even realize it.
Even worse, when you do violate the EULA, you're obligated to destroy all copies of the software. And the "Apple Software" is defined to include the Boot ROM, which means that technically you must find some way of erasing the Boot ROM on your computer, thus rendering it inoperable.
Users who bought a computer secondhand should be wary, too. Did you get all of the documentation that originally came with the computer? If not, the seller didn't make a proper transfer of the software, and thus according to Apple you don't have a "properly licensed copy" either.
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Dustin N. said 10:04AM on 9-03-2009
The 'one backup copy of the software' likely applies to the physical install disc itself, not the target destination or computer you are running it on. i.e. you can burn a copy of your install disc, but only one, for personal use and not to redistribute. This is a pretty standard phrase for software EULAs (that doesn't have copy protection on the disc).
Brian E said 10:18AM on 9-03-2009
Dustin,
It doesn't say that in the license agreement. If the license only applies to making copies of the physical media, not the installed version of the software, why can't I ignore the license provision that forbids me from installing it on a non-Apple labeled computer?
The fact is that the license expressly forbids making any copies of the software except as authorized by the agreement - so by "backup copy", I would assume that *any* copies of any portion of the software are included.
David Winograd said 10:48AM on 9-03-2009
I'm quite sure that they are only referring to making one backup copy of the physical installation disk and has nothing to do with hard drives.
Personally, I don't know anyone who has the equipment of making a copy of a dual layered DVD, but I haven't asked around.
You can install it on 2,000 hard drives and as long as those hard drives are only used one at a time on one designated computer it seems to me that you are in compliance.
Absurd extreme used to make the case.
Brian E said 11:01AM on 9-03-2009
David,
Thanks for the reply. The "Apple Software" is not defined to mean the installation disc. In fact, it's expressly stated to cover the installed copy ("whether preinstalled on Apple-labeled hardware, on disk, in read only memory, or any other media or an any other form"), and other portions of the agreement use the exact same terminology to mean the installed copy of the software on the hard drive. Why do you believe that it only refers to the disc? That might have been their intent, but as written the agreement forbids making any copies of the software except as authorized, and the language I'm referring to is the only clause that authorizes a backup copy to be made at all.
Apple's position on licensing is rooted in the belief that a license is required to even run the software, and that no copies may be made legally except as authorized by the license. If I don't need a license to make a copy of my hard drive for backup purposes, why do I need the license to use the software at all?
Here's a link to the license for reference:
Leopard: http://images.apple.com/legal/sla/docs/macosx105.pdf
Snow Leopard: http://images.apple.com/legal/sla/docs/macosx106.pdf