I've been following the direction this thread has taken with some interest, but previously had no intention of jumping in. However, even though I'll probably regret doing so now, I think I might have the appropriate background to offer a few useful technical points.
First, my credentials, which I think are germane to this post:
- I'm agnostic about operating systems. I run OS X (and iOS), Windows, mainstream UNIX and Linux. I've managed an IT organization for a U.S. federal agency that supported a multiplatform environment that included all of these, and others.
- I'm purely an amateur photographer, and don't have any opinion about what might be considered “professional” or “unprofessional” behavior for those of you who make a living at photography.
- I'm a lawyer—not currently in practice, but with a degree and a license in the United States (District of Columbia).
- I've been programming computers for more than 45 years.
Now, first of all, I think it would be best to avoid the terms
legal or
illegal with respect to the adherence to or violation of a software end-user license agreement. I think in English (at least as spoken in the United States), there is an imputation that “illegal” refers to a violation of criminal law.
Second, it really doesn't make sense to me to refer to the validity of end-user license agreements except in the context of a particular jurisdiction. In federated governmental systems, such as the United States, Canada, the United Kingdom, Germany, India, China, etc., you may need to consult the law of more than one jurisdictional level to determine an outcome. In multinational federations such as the European Union, there may be an additional adjudicative layer. And international treaties also come into play in some areas (e.g., copyright) because many national systems give international treaties the force of domestic law.
Third, in the United States, at least, the enforceability of end-user license agreements is not generally settled. Depending on the way the agreement came into force, it may be considered an “adhesion” contract (no real meeting of the minds) or a binding bilateral agreement that the courts will enforce. The amount of “consideration” (the fee paid by the licensee) may be an issue, as well as the expectations of the parties about how the license would be used. The specific terms of the license may be a factor in whether a court in a particular jurisdiction will enforce it, as well as their clarity and the court's notion of their reasonableness. The statutory law to be applied, the particular court that hears a dispute (state or federal), and whether there is (in the judge's opinion) relevant controlling authority from a higher court will all make a difference. In general—again, at least in the United States—any blanket statement about the validity or invalidity of these agreements is incorrect.*
Fourth, if Apple wanted to enforce its end-user license agreement for OS X, its remedy in the United States would probably be limited to its actual monetized damages. In other words, Apple probably couldn't recover more in damages that the revenue it had actually lost. Of course, the cost to the licensee of defending a lawsuit brought by Apple might be considerable.
Fifth, if Apple wanted to stop people from installing OS X on non-Apple hardware, the company clearly has the engineering talent to develop an effective technical impediment to doing so. This would be relatively easy to do prospectively, beginning with new hardware releases, but probably very feasible to retrofit to legacy hardware via new OS X releases or patches to existing ones. (Yes, maybe certain agencies of a few governments could defeat such a scheme, and probably 11 of the most talented teenaged hackers in China, but the government agencies wouldn't be interested and the hackers are too busy selling pirated credit card information to the Russian mob to be bothered with such a niche undertaking.)
Finally, I spend most of my time in an OS X environment because the commercial application software I use the most is available for OS X and I find anything UNIX more congenial than anything Windows. I have no intention of building a “hackintosh” nor any particular beef with anyone who does. However, it seems obvious to me that most people who aren't happy with or interested in Apple's hardware products will simply run Windows. A few computer aficionados may go to the effort to run OS X on generic Intel hardware—probably many of them would assemble their own desktop machines for running Windows—but most end-users want something that runs out-of-the-box. Apple knows that, which is probably why they haven't taken effective action to stop people from running OS X on third-party hardware. (That's not to say the won't in the future, of course.)
Chris
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* Having said that, I've decided to go out of my way not to refer to them as EULAs, just in case Michael Reichmann should decide that sounds too much like Lu-La and decide to sue me for trademark infringement.
