[clug] Story: Fijian Resort complex loses a single disk: business process stops for 1-2 days (and other stuff)

Scott Ferguson scott.ferguson.clug at gmail.com
Mon Jul 28 19:43:38 MDT 2014

On 29/07/14 08:24, steve jenkin wrote:
> On 28 Jul 2014, at 4:51 pm, Hal Ashburner <hal at ashburner.info>
> wrote:
> Will they ever make a version of OS/X available to be legally run
> within a Virtual Machine? For a long time I’ve felt this is “third
> line forcing” (or a variant of “exclusive dealing”), illegal here
> under the TPA/ACL. I’ve never been able to get traction on that one
> :( [They don’t do the classic “you can only buy X’s beer at this
> pub", but it is a false, commercially enforced restriction.]

Standard disclaimer - IANAL take this with a big bucket of salt and shop
around for legal advice

Using *current* versions of Apple in a VM on *non-Apple* hardware
*violates* the Apple *EULA*
Emphasis on the important bits.
Please note my disclaimer above - the Bern Convention means that where
the copyright laws of one country that is a signatory to the convention
are enforced (respected?) in another country that is a signatory to the
convention - *as long as it doesn't over-ride native laws*.
e.g. in Germany some parts of Apple's EULA are invalid (that Apple OS is
only legal on Apple hardware)

Whether that applies in Australia is *possibly* a matter of whether:-
;those terms constitute a valid contract[*1]
;you can find legal representation with sufficient backbone to fight the
;the courts are willing to hear your case
;the courts give you a fair hearing

[*1] (it's a lo-ong time since I studied contract law)
;a financial component
;two parties agreeing to provide something for something
;a witness to the contract
;the terms of the contract are legal[*3]
;nothing important is hidden from the agreement[*4]

a contract to kill someone is not a legally binding agreement, nor is a
contract that relieves either party of their legal rights. e.g. if you
don't pay your children must pay. Additionally under Australian Consumer
legislation the contract must not be "coercive"(? element of duress?)
(force or manipulate a party to the contract)

a contract to mow someone's lawn, that fails to warn that the lawn is
populated with lions is not a valid contract

Presuming (assuming?) that the EULA is a valid contract[*5]
then Lion[*6] is the last version of Apple that doesn't have those
prohibitive terms in the EULA. Too big to fail/Too big to contest or
oppose is the usual justification for letting abusive EULAs go
uncontested in court. e.g. it's an offence to reverse engineer closed
sources products that you have *bought* in Australia. I hold that in
which case you don't *own* the product. Actual, or, constructive
fraud(?) - you obtained my money deception (you lied when you said I was
"buying" the product). If I sell you an axe and insist that you can only
use that axe to cut willow trees I doubt the courts would uphold my
claim if you were to cut plum trees with the axe.

[*5] I hold it's not, likewise many terms in M$ EULA's - because as a
consumer I can buy the Mona Lisa and roll it up and smoke it, I'm buying
it - not renting the damn thing.
And *if* I'm renting it... it better be "fit for purpose" (denying me
updates makes "fit for purpose" debatable)

The End User License Agreement (EULA) for Apple Mac OS X legally and
explicitly binds the installation and running of the operating system to
Apple-labeled computers only.
Mac OS X 10.5 Leopard Server, 10.6 Snow Leopard Server, 10.7 Lion client
or server and 10.8 Mountain Lion client or server are legal to run in
VMs *while running on supported Apple hardware*.

I bought Lion from the Apple Shop - I told the staff I was intending to
run it in a VM *on non-Apple hardware*. They *took my money* and *sold*
me the product. Apple contents that *later* accepting the EULA is a
valid contract (undue influence? coercive?).

Back to consumer legislation....
The Australian Consumer Law (contained in schedule 2 of the Competition
and Consumer Act 2010 (previously named the Trade Practices Act)
incorporates a national unfair terms regime. The two key provisions are
sections 23 and 24.

Section 24

Meaning of unfair

(1) A term of a consumer contract is unfair if:

    (a) it would cause a significant imbalance in the parties’ rights
and obligations arising under the contract; *and*

    (b) it is not reasonably necessary in order to protect the
legitimate interests of the party who would be advantaged by the term; and

    (c) it would cause detriment (whether financial or otherwise) to a
party if it were to be applied or relied on.

Having bought Lion because I needed proficiency[*7] in that version of
Apple - and I could not afford to buy an Apple machine. The terms (EULA)
were tacked on *after* the sale..... Apple's argument when I contacted
them was I should return the product - but I hold that we had a valid
contract (made at the cash register).

[*7] Social and business pressure that is the calculated effect of great
expenditure (marketing and advertising) on the part of the so-called
aggrieved party (Apple).


In closing I'd point out that until Apple and M$ dump the shares they
hold in each others stock it a duopoly built on illegalities - their
EULAs absolve them of all responsibility for the product - for which
demand all responsibilities from the buyer.


Legally qualified criticisms welcomed.

Kind regards

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