Some Day You May Own the Software You Own
Tuesday, January 20th, 2009Many people don’t realize that they don’t own the software they just bought. In fact, they often only own a simple license to use it. Just like any license, i.e. hunting, driver’s license, there are certain caveats that come with it.
Those restrictions are spelled out in the EULA you innocently skip over when you install the software. Only in the software world can you get away with forcing restrictions of a sale, after money has exchanged hands.
Keep in mind, a EULA isn’t a legally, valid, binding contract. No agreement was made before the sale, and the terms of the agreement were not made available before hand.
Here is what happens:
1. You buy something off the shelf
2. You open the package (thereby removing any chance of returning it)
3. You find all the restrictions of the software ex post facto
4. If it doesn’t work on your system or as advertised, you are out of luck
5. You soon learn that you could be in legal trouble if you try to sell it via the first sale doctrine.
Software makers could display the EULA and other restrictions on or outside the box. However, this would cost time, money and shelf space. Providing realistic system requirements for games would resolve many issues. Unfortunately, most game publishers don’t give a Windows Experience Index that would tell you how well the game would run. So in this regard, consumers get the shaft. Hmmm, perhaps this is why people often download games with bittorent. I’m just sayin…
However, there is hope. Although vilified by the zombie-like Apple cult members, the company Psystar might finally throw down the gauntlet necessary to challenge EULAs.
Psystar has legally (presumable) bought off-the-shelf copies of Mac OS X. They then take that single copy, and apply the operating system to a single PC. Thereby, making a Mac clone. You get the benefits of the Mac, without the Apple Tax and the esthetics of buying a true Apple product. If you want to do it yourself, check out how to build a Hackintosh. Apple of course filed lawsuit for trademark infringement, copyright infringement, breach of contract and for that time Psystar hit them on the playground.
I get it; some people steal software. Piracy is bad. However, existing draconian DRM on software (i.e. Spore) could be used to resolve the first problem. Required online activation and download codes are already starting to prevent reselling software. With this, the average person continues to have fewer rights with their purchase.
Even if the scrappy company Psystar wins and sets a legal precedent, they’ll lose. Odds are Apple will issue updates to disable the clones and/or prevent new features from being upgraded. If you are excited at the idea of another hardware maker producing Macs, don’t be. I think it is unlikely Apple will license the OS to other PC manufactures. Given Apple fights these kinds of lawsuits of the regularity of a sunrise, the odds are Psystar will be run out of business before this even hits a court.
However, instead of fighting yet another legal battle, perhaps Apple should license Mac OS X to HP and Dell to eliminate the threat Psystar and future clones? Most people would prefer buying a Mac from HP or Dell versus a small mom and pop operation. That would really put all three major operating systems: Windows, Linux and the Mac OS on an even footing. It would give the other two a chance to have a wider market. Apple will probably never really rival Microsoft’s market share without it. Perhaps they want to stay their own niche product.



