German Mac clone company thinks Germany doesn't have laws
By Nilay Patel 
posted Feb 6th 2009 3:36PM
posted Feb 6th 2009 3:36PM
We're never going to get tired of the insane legal theories would-be Mac clone companies trot out to try and circumvent incredibly basic copyright and contract law concepts -- like Psystar claiming Apple has a monopoly on its own products -- and today we've got German cloners HyperMeganet, who'll sell you a 3.2GHz Core i7 Blu-ray-equipped PearC tower with Mac OS X preinstalled for €2,408 ($3,111). According to the wonderfully-named Hypermeganet, German law requires EULAs to be available for review before purchase, so Apple can't enforce its license restrictions since the Mac OS X EULA isn't printed on the outside of the box. Leaving aside the fact that the OS X installer displays the EULA on-screen and that you have to click "Agree" before installing, we'd just like to point out that all of Apple's license agreements are available for your leisurely perusal before purchase right here -- including the German OS X license, which we're damn sure Apple's foreign counsel has made sure is valid and applicable in that country. Oops. We'll see how long Hypermeganet can keep itself out of trouble -- seriously, when will these companies learn that all they're doing is hurting the homebrew OS X hacking scene by tempting Apple into locking down their systems even harder?[Via TUAW]
Read - Spiegel Online article about PearC
Read - PearC website
Its not a bad price even if it was windows
They even have a starter edition OSX PC for 499,- Euro including the OS. Not too bad...
I hope Apple locks down OSX even more.
like in a bunker deep beneath earth where nobody can access it?
I sure hope Apple just sells the box retail, plus $100, without support, so we can stop playing these stupid games.
Speaking of lock downs, anybody notice how the article about Apple locking out facebook suddenly disappeared? Bad form Engadget, a simple update stating that it was not true would have been more appropriate. Simply removing a posted story may make it look like you are trying to not show a certain company in a certain light.....
why apple isnt sued for monopoly with antitrust investigation?
its market share is low doesnt mean it's not monopoly.
Yes it does
Because maybe OS X's competitor is Windows? Again, how exactly is that a monopoly?
Well, no, the small marketshare means that there is no monopoly. It's part of the definition.
Also, Apple didn't buy up companies to cut off competition.
Nobody is forcing anyone to buy Apple! Besides anyone can buy a current Mac and install Linux, Windows XP or Vista on it and run those exclusively if they want to (or along with OS X).
Hey, I'm forced to buy PC's with friggin Vista installed on it even though I don't want it.
Correct, Linux and Windows can be installed on a Mac, but OSX cannot be installed on a PC. The issue arises because there is no competition on the hardware side for Apple. That results in people paying for an Apple product just to use OSX, even if they could build a superior machine for less. I'm not saying whether it is right or wrong, just stating why there is an issue.
well it is because they have a small market share sure. Mostly though it is because you are buying a mac with osx as an item, and you are free to do with the mac as you wish, be it install windows, hack it, even mess with the osx kernel and reinstall it. apple is a hardware company and osx is just like firmware on a phone to it. They don't really make it as a modular operating system and you cannot buy it as an operating system. You just buy an upgrade license when you buy the box copy of osx. They can get away with this because it makes more sense than the shit windows is getting nailed for as a monopoly.
Pete: Everyone of my PCs came with a fresh/blank drive ready for me to install whatever OS I want. I don't think you are forced into anything, so please cut the crap. Word up and say "I don't want anything pre-installed or I wont take it". Even my ~2.000EUR HP Laptop came with their FreeDOS (which is really nothing) 'cause I said, I don't want any shit installed on it.
Even if Apple/OSX had a 95% market share, it wouldn't be a "monopoly" to force OSX to only run on apple machines. Tivo has a substantial market share in the DVR market, and Tivos are just modified linux PC's. You wouldn't expect Tivo to just open up or start selling their software to run on your home-built media center PC, do you? (Other than the open-source portions, which they're required to distribute) It's a major part of their business model, which they'd lose if competitors could just run the Tivo software.
If you just pretend a mac is an appliance, then you can just think of it the same way: Apple wants to control the hardware that you can run their OS in. I'm not saying it's the best business model in the PC world, but it's not illegal, and they're free to do it as they see fit.
because they choose to keep their products in house. They don't sell OSX to ANYBODY else... therefore it's perfectly in their copyright/patent monopoly to keep those things to themselves. It's their monopoly, they're not sharing, and that's perfectly fine... as long as the stockholders like the small market share. (and 3x the profit per unit versus other companies keeps the stockholders quite) Apple can run afoul of consumer protections if the abuse their customers too badly, but it takes a lot to get the government's attention.
Where Microsoft and Intel run into trouble is that THEY don't sell finished computers. They sell OSes or Chips that OTHER companies make computers out of and that other companies have to furnish parts to complete... They can't then pick and choose which buyers of their products win and lose in the overall market, that's when they run into trouble with the law.
Was that article was writen by Mac Boy-Fan Boy, LOL ...
OSX can't be installed on a pc?
Well first off, PC is personal computer - what the heck do you think a mac is.
and 2nd - you're totally wrong.
http://www.youtube.com/watch?v=ge-bQ0bza2c&feature=related
Ack.. that wasn't directed at you Vitalaya.
This comment system is terrible.
@ Onetrack
Nobody said OSX cannot be installed in a PC, it is all about the legitimacy
I mostly agree with you, Nilay, but please stop being so wisenheimerish about other country's laws. Thank you.
How are they being "wisenheimerish"? If anyone is being "wisenheimerish" it's Hyperultramegagiganet.
Shouldn't that be Compu-Global HyperMeganet?
"Welcome to the internet, my friend. How may I help you?"
The greatest thign is how the name HyperMeganet is similar to Homer's CompuGlobalHyperMegaNet, LOL
I still want to name a company HyperGlobalMegaCompunet Version 2.0 Inc. Unlimited Incorporated Solutions.com 2000. Is there a limit to how long a company's name can be?
Well, I think you're not quite right on this part: "Leaving aside the fact that the OS X installer displays the EULA on-screen and that you have to click "Agree" before installing, we'd just like to point out that all of Apple's license agreements are available for your leisurely perusal before purchase right here -- including the German OS X license, which we're damn sure Apple's foreign counsel has made sure is valid and applicable in that country"
I'm no law expert, but afaik German law requires the EULA to be *accepted* before purchase. That can't happen through EULA acceptance during install (as this clearly isn't before purchase) and not through reading them on Apple's website (as they can't be accepted there). That may be some legal nitpicking, but I guess Hypermeganet isn't too far away from the truth here.
If you want to get paranoid, who's to say the EULA on the website is precisely the same one as the one it gives you when you install? You'd have to read that one completely to be sure they haven't changed a single letter to completely change the meaning of some clause, which makes it being on the website a moot point.
I suddenly want to move to Germany.
EULA's are not enforcable in Germany. So indeed Nilay is being wisenheimerisch ;)
From Wikipedia:
In Deutschland sind EULA zu Standardsoftware nur dann Vertragsbestandteil, wenn sie zwischen Verkäufer und Erwerber der Software bereits beim Kauf vereinbart wurden. Dem Käufer erst nach dem Kauf zugänglich gemachte Lizenzbestimmungen (zum Beispiel während der Installation oder als gedruckte Beilage in der Verpackung) sind für den Käufer wirkungslos. Dies gilt auch dann, wenn der Käufer bei der Installation "Ich stimme der Lizenzvereinbarung zu" oder Ähnliches anklickt, weil die Software sonst die Installation verweigert.
Translation:
EULA's in Germany only apply if buyer and retailer agree upon them during the purchase. License terms made available AFTER the purchase (e.g. during the installation, or a printed version inside the box) are without any effect to the buyer. This even applies for the clicking of well-known "I accept the EULA"-buttons, if the software denies installation by not clicking it [since you bought something, you have the right to use it, no matter what awaits you in the package]
PS: Its a really great law ;)
greetings
What about the implications of Mac OS X coming *pre-installed* on the machines?
I believe it says in the EULA (which someone/something at their "factory" clicked past during the installation process) about reselling it. So even if the EULA "doesn't apply" because it hasn't been seen before purchase by HyperMeganet, surely it wouldn't be legal to resell it, since someone has agreed to the EULA for the *actual* end user.
Just my thoughts.
@Michael: Why shouldn't it be legal to resell it? The EULA doesn't apply, so all things said in it about reselling are null and void. The actual end user also doesn't see the EULA, so it's also invalid for him.
Well, if the retailer does not require you to view and accept the license on the website before you do a purchase, you don't have to. That is quite simple... I have no degree in law, but its common knowledge that most EULAs are not applicable here. Its a prerequisite that the EULA has to be accepted before the purchase.
Last time I checked the Apple retailers here, you could just waltz in and grab a copy of OS X ;) They didn't ask if I read the EULA on the website and wether I accept it... So I guess maybe that might change in the future.
Llike I said earlier, even the "I accept" buttons don't apply to Hypermeganet, since even those are not enforcable here. You paid money for something, without the legal stuff printed on the box. You can do whatever the hell you want with it as long as you don't violate any EULA on the box. Thats how it works here right now. Maybe Apple germany will print something on the box preventing this stuff, I don't honestly know...
Judging from past court decisions though, Apple won't have a chance to stop Hypermeganet. And even if Apple could, Hypermeganet still could bundle those PC's with freshly packed OS X DVD Boxes, and be on the perfectly legal side ;)
But its more probable that german courts will judge in favor of Hypermeganet. Apple's way to restrict their software to a certain hardware will certainly not be tolerated much longer. Just think of the fines EU imposed on Microsoft for bundling their OS with a certain browser. The more people use Mac OS, the more probable it will become that Apple will be sitting at the courts just like MS ;)
EULA doesn't matter because you can't buy a license to use osx. You can only buy the upgrade.
You aren't paying attention michael, the law says that an EULA is only valid if presented during sale, not if presented afterwards, now since the EULA is invalid it doesn't become valid again suddenly afterwards to apply to what you do with the software like reselling it, although I'm sure apple lawyers will try to tell otherwise, probably by going for the copyright on the software, but since it's paid for and only used by 1 person at a time they don't have a leg to stand on, their rights are protected in the sense that they got paid, it's just that their EULA is invalid.
Thorsten, you are missing that while it might be legal for an end user to buy a PearC with OS X, it is hardly legal for PearC to install it on their PCs since they hardly have an OEM contract with Apple, nicht wahr? Important difference between reseller and end user (hence EUla)
@RogueFive: I don't think that matters. There are no real OEM licenses in Germany (and in the rest of the EU). The whole concept of license bundling has existed like 10 years ago, but has been ruled illegal since.
For example Microsoft is still producing Windows CDs that are labeled "OEM" but you can buy them anywhere and with or without PC however you like and use them legally as long as you can live without a printed manual. A nice way to save money. ;-)
It's not monopolistic for apple to prevent other distributors from installing the OS on non-apple machines, but it sure is anti-competitive (which is a anti-trust violation). Apple allows people to purchase its OS on it's own, but they only allow it to be installed on genuine Apple hardware? That should not and will not be tolerated, regardless of the fact that they only control a small portion of the market share compared to Microsoft. I understand that this way they can control driver compatibility and security a little bit better, but that is far from a justification.
But Apple is a hardware company that makes their own software... its akin to saying that if all motorola phones (as an example) use the same proprietary operating system it's anti-competitive that nokia phones can't use that same operating system.
right, but does Motorola sell it's OS at retail stores for a consumer to install on their phones?
LOL, yeah, cuz that hard drive and RAM inside your Macbook is made by Apple.
I don't understand why so many people feel entitled to put any software on whatever system they want. If Apple only wants their OS to run on their hardware, what is the problem with that? Do you also think you should be able to put PS3s OS on a Wii? Do you expect to be able to install the interface from a Samsung tv on any other tv? I don't have a problem with the hackers and homebrew crowd doing there thing, but claiming that companies are obligated to allow you to do whatever you want with their software is ignorant.
"...all they're doing is hurting the homebrew OS X hacking scene..."
Yeah. I am sure that's their primary concern.
no, but it's *MY* primary concern... I've got OSX on AMD and intel boxes at home... and I like to recieve updates.
Nobody cares about you.
That name is awesome! Simpsons fans come on! Name must be inspired by Compu-Global-Hyper-Mega-Net (http://simpsons.wikia.com/wiki/Compu-Global-Hyper-Mega-Net)
I'm still on Engadget and not Gizmodo correct? Was there a Steve Jobs mini me writing this article?
take that usa, know you see what real freedom is ;)
Na Na Na... was ist den bei Euch loss, bei Engadget und in Amerika ist Apple heilig, also jeden der Apple "benachteiligt" ist ein Enemy of the State, Ihr Apple fanatiker sollt mal runter von eurem Ros kommen ( I you catch my drift ).
Ich glaube nicht das zu viele Apple Fanatiker in Amerika deutsch Kenntnisse besitzen, deswegen nein, die catchen deinen Drift nicht.
Look at Engadget as an official Apple Magazine. Just read & forget 90% of the news here, that's how I do it.