Are Tiger to Snow Leopard Upgraders Violating the User License?
September 14th, 2009As some of you have discovered, there is nothing to prevent you from using the $29 Snow Leopard installation DVD to setup 10.6 on an Intel-based Mac running Tiger. Apple probably didn’t cripple the installer for the simple reason that it would prevent you from erasing and restoring your hard drive should the need arise.
Or maybe they just want to be nice about the situation.
At the same time, there is a $169 Mac Box Set, a bundle that includes not just Snow Leopard but iLife ’09 and iWork ’09. That is indeed the official method of upgrading from Tiger, on the theory, I suppose, that you should have these two app suites to complete the collection. In essence, that makes the cost of Snow Leopard a mere $11 above the usual list price for these products.
However, what is one to do if you have already purchased these two suites? Would Apple give you a discount on Snow Leopard, or just expect you to purchase the entire package anyway?
Of course many of you know that, from a practical point of view, you can take that Snow Leopard DVD and it’ll work fine on a Mac running Tiger, so long as it is an Intel model. There will be no warning screens, requests for special activation and 10.6 doesn’t even come with a serial number. Many of you have already performed that installation with great success.
At the same time, Apple has something called an EULA, an End User License Agreement, that specifically states that the Snow Leopard DVD can only be installed on a Mac that’s already running Leopard. Obviously that excludes Mac OS 10.4, right? So, in theory, if you don’t obey these restrictions, you are violating the license. You should be using the installer from the Mac Box Set instead.
To a large degree, it appears that a hefty number of Mac users are being totally honest about this. The Mac Box Set sits just behind Snow Leopard in the sales charts at Apple’s online storefront. I don’t for a moment believe that everyone who opted for this package truly believes there is no other route to installing Snow Leopard. They simply want to be honest about it, and if you don’t have the latest iLife and iWork, it happens to be a pretty good deal.
The other legal alternative, I suppose, would be to pay $129 for a Leopard upgrade kit, and $29 for Snow Leopard. At $158, however, you are only getting two operating system DVDs, one of which you won’t actually ever use, so it would be a waste of money.
So what’s the reasoning behind Apple’s peculiar upgrade licensing policy, other than to sell more product? Well, maybe that’s all of it, and I’ll grant them their right to earn an honest income, and certainly a policy of this sort is perfectly legal, if wholly impractical.
As much as Apple is accused of resembling Microsoft in many respects, the facts are often otherwise, however. Apple’s consumer-level software products, including the operating system, don’t carry serial numbers. The exception would be when you upgrade, for example, iWork ’09 after running the demo version and upgrade via an online purchase. Then a serial number is required to unlock the software.
The high-end products, such as Logic Studio and Final Cut Studio, do carry the normal user licensing requirements, and that certainly makes sense considering the pricing of those products and the fact that they cater to people who, for the most part, earn a living from content creation.
Compare that to Microsoft, which has a serial number attached even to the very cheapest, almost unusable, versions of Windows. Worse, if you happen to perform too many upgrades to your PC, Windows often requires that you reactivate your operating system. I suppose the software’s fuzzy logic assumes that, after a certain point, you’re not just upgrading one computer but acquiring another one, for which you need a brand new user license.
Yes, I realize there is a high percentage of piracy around the world, focused particularly on Microsoft software and products from other major developers, such as Adobe. Obviously, these security measures are designed to ensure that each and every copy is being run by someone who actually has the right to do so. Unfortunately, anti-piracy policies that are too draconian can often have the reverse effect. Ask the entertainment industry.
It also helps to price the products affordably, so there’s less incentive to pirate. While it lacks visible feature enhancements for the most part, Apple no doubt invested hundreds of millions of dollars to redo the plumbing in Snow Leopard. That’s something that will play out over time, as more and more developers release products to support the new speed enhancements. Despite the development expense, they charged a shareware-level fee for the upgrade.
In turn, the price for Windows 7, while lower than Vista, is still no less obscene; that is, unless you’re a PC maker and you can buy a few million licenses all at once and take advantage of quantity pricing.
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“Yes, I realize there is a high percentage of piracy around the world, focused particularly on Microsoft software and products from other major developers, such as Adobe.” Yes indeed. I imagine a lot of people who engage in piracy of software, music and videos imagine themselves to be engaged in some kind of Robin Hood enterprise. That’s plenty stupid, of course. But on the other hand, some corporations wouldn’t invite piracy if they didn’t behave so much like Sheriff of Nottingham by charging outrageously high prices.
Look at the Snow Leopard “upgrade” box. It has system requirements listed. Does it say anything about which OS is required? My copy does not.
@JS, I’m talking about the user license.
Specifically this provision, saved from the U.S. version:
“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 non-exclusive 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.”
Any questions?
Peace,
Gene
@JS just because you can justify it to yourself doesn’t make it legal or right, it just makes you wrong twice.
@ Daniel Decker
An attorney would possibly argue that Apple didn’t make the information readily available or omitted it from the box on purpose to mislead the general public, as you really can’t easily read the EULA agreement until after purchasing.
Over the years I’m sure you have read all the EULA you have agreed to, so you realize that you really give all the power to the company… just because it’s in the EULA doesn’t make it legal or right. 🙂
Off Topic: I would be curious to see how well the EULA would hold up in court if Apple decide to press charges. That’s what makes the Paystar case so interesting… though there are other factors involved with that case.
@Karl, and it would be a poor argument, since Apple’s marketing campaign has made it quite clear that the $29 Snow Leopard update is intended for existing Leopard users, and that there is a Mac Box Set for those still running Tiger. It was never a secret. Sure, attorneys can easily turn red into blue, but the facts are all out there for everyone to read.
Peace,
Gene
@Gene Steinberg,
Actually my point to Daniel was just because it in the EULA doesn’t make it right or even necessarily legal. That ‘s the beauty of the court system. You could challenge the EULA. (as Paystar is doing) Ultimately the challenger may lose, but could also win.
I do agree with you Gene that Apple hasn’t been hiding it. But it should be stated on the actual box of purchase since you CAN’T read the EULA until after purchasing. So depending on the court, judge and other factors, I can see a case going either way.
@Karl, and this is the way EULA is traditionally done. There may be printed documentation, but usually you see it only after you click the Installer. And, yes, Apple gives you the option to Save as a text document for later review.
Peace,
Gene
@Gene Steinberg,
True, but this is the first time that Apple said you had to have a specific version of the OS to install this version in the EULA. (FYI… I didn’t do the research so if they have had it in the EULA of previous OS versions, I am humbly wrong and below would be invalid.)
Putting that requirement isn’t the usual way of doing it… normally you would have the installer software detect it and then a dialog would pop up not allowing you to proceed. Plus, it would be stated on a side of a retail box that a certain version is required to upgrade.
I’m not arguing which way is better. Or why Apple is doing it this way. I’m saying if a person finds that they are in a legal battle over it. Depending on the court, the judge, the lawyer, etc… you may successfully argue that Apple didn’t make it clear (Clear being the subjective term) enough because they broke from the normal way of alerting users that certain criteria is needed to install.
Agreed that the odds may be small for a victory.
@Gene Steinberg,
As an attorney myself I can honestly say that we are not able to turn red into blue. I have managed purple on rare occasions and pink is easy, but blue remains the lawyer’s holy grail, pure unobtanium.
Microsoft’s profit margins on Windows over the years have been in the 80+%. It made have dropped to below 80 with Vista during the last two years. Microsoft has a captive audience for Windows. Being a monopolist, they can still charge whatever they want. Who do HP and Dell turn to for an OS? Unless one can run most Windows apps on Linux, Linux remains a last choice.
What does Microsoft do with all that dough? Instead of making more bread, they just throw it away on failed products. One would think that Microsoft could easily lower the price of Windows if they don’t squander the incoming bundles of cash.
Apple’s OS upgrades have always been on the honor system. Their upgrade prices have been reasonable. My Titanium PowerBook (Rev B) was purchased in late 2001 and OS 9 was the default. Mac OS X Puma (10.1) was included as an optional install. It became my Mac OS X machine. During the first five years of use, I purchased all three upgrades finalizing the PowerBook at Tiger in early 2006. Did I have to? No. Could have waited until Tiger which is the last official Mac OS X upgrade for this PowerBook. I wanted to experience the evolution of Mac OS X and it wasn’t that much of a cost issue. The PowerBook G4 is still in use and will hit the eight-year mark in six weeks.
And how is situation in Europe? Here companies sell hackintoshes because EULA is not valid when you can not read it before you open package at least by German law I guess. So you can instal Mac OS X on anything you like. So same situation will be with SL I would say.
Apple has invested a ton of money to create Mac OS X. What is so wrong for Apple to set conditions of its use? Apple is not a monopoly in the PC arena. Apple is catering to a certain PC user. Apparently, this is still a successful business plan.
Psystar is taking Apple’s work without any regards to obtain an agreement and trying to make a business of manufacturing Mac clones. Why should Psystar profit from Apple’s Mac OS X development in the last 10+ years (and the $400 million for the purchase of NeXT)?
@DaveD,
Well Apple (as well as any other company regardless of market share) has a right to protect themselves to some extent. I was never arguing that point.
The Psystar case is a bit different (as stated previously) as it’s a company not an individual breaking the EULA. Ultimately Psystar isn’t the end user. (Off Topic: I think Psystar is wrong for what they are doing. But that isn’t up to me to decide.)
I am curious to see how the case develops because it might give a strong indication on how strong the EULA is in our court system.
@Karl,
perhaps apple put the proviso into the eula specifically for court ammo against psystar whom they know won’t buy the life/work pkg to install on new machines and that’s why they’re being so low-key and non-committal re questions regarding individual upgrades from tiger that skip leopard.
/guy
@Guy,
ha… well if they did… more power to them. Actually with Apple including it in the EULA instead of having the installer check the OS version is pretty good.
If Apple ever needed an influx of cash they always go after those end users who skipped Leopard and made the jump from Tiger to SL. I could see it echo the Recording Industry … we are suing you for $$$$… but we can settle out of court for $$.
@Karl, It’s just not Apple’s way.
Peace,
Gene
@Gene Steinberg,
ha, true… but hey you never know… We may all wake up one day and find ourselves on the wrong side of the law due to some company’s EULA. 🙂
I’m no lawyer, but I bet that if push came to shove a court would not just be interested in whether the fact that use of the $29 upgrade is legally limited to owners of Leopard, as specified in the EULA, is mentioned on the CD-ROM box. It would probably want to see the bigger picture: was this legal limitation mentioned on Apple’s website pages devoted to Snow Leopard, in the relevant pages of Apple’s on-line Apple Store, or in whatever advertising Apple put out in other media? As far as I can remember, the answer to all these questions is no. And I have no idea what if anything you are told by a salesperson at a real-life Apple Store, maybe the guy just takes your money and hands you the thing, no questions asked. I did read about an “honor system” in some third-party press reports at the time of the release, and maybe a little before, but I don’t recall hearing anything about that from Apple itself. My hunch is that a court would look at this bigger picture rather than just what is or is not written on the box — after all, many of us purchased it sight unseen — and conclude that Apple has not done enough to publicize this limitation to make that part of the EULA enforceable. But as I say, I’m no lawyer, and I may well be wrong.
@dfs, If you check the main Snow Leopard information page at Apple’s USA site, you will see it states in fairly large lettering, “Now available. Upgrade from Leopard for just $29.” I don’t think a lawyer would have a leg to stand on, but a devoted ambulance chaser would go after any company with a pulse if there was even the slightest potential for a payday. 🙂
Peace,
Gene
@Gene Steinberg,
Gene, “my client” hasn’t ever visited Apple’s website, so would of never seen that message. He doesn’t have a TV, so has never seen a commercial stating that Leopard is required to install. Doesn’t have a radio so the message didn’t reach him through that channel. Newspaper?… nope doesn’t get it.
Actually his first discovery of Snow Leopard was the retail packaging on the shelf of a local computer store. The signage only stated get “Snow Leopard Here for $29.00”.
Ladies and gentleman of the jury, the prosecution will say that the signage states that the upgrade is $29.00 if the user has Leopard installed. They haven’t submitted it as evidence but can ensure you that IF it indeed had that message it was very small in size, 6 point possibly less. Also the font was very thin and very light gray. In other words, very easy to over look and certainly not “clearly” visible.
To continue, my client proceeded examined the shrink wrapped box and decided to buy it because he met the system requirements that were clearly stated on the outside of the box. No questions arose if Leopard was needed. He proceed to pay for it and promptly went home to install his exciting new product.
So when did my client “clearly” see the message that Leopard was needed to install? At the point of install it was buried in the fine print in a EULA. You have seen those agreements, haven’t you? Sure you have… those small univiting large copy blocks of fine print. It is very easy to overlook something in that much copy, don’t you think?
I don’t think it was possible for “my client” to “clearly” see that Leopard was required. I believe Apple is at fault as, at the very least, it should be stated on the outside of the retail box that Leopard is required for the upgrade or the installer should of checked for Leopard prior to install. Having the installer check does seem to be “industry standard” and commonly used by the largest software maker in the world.
Gene, I hear yeah, no reasonable argument there. My client is just a thief and I am a ambulance chaser. 🙂 I mean look the courts found OJ innocent and that McDonalds sells too hot a coffee. The odds of a court finding “my client” innocent would be a long shot, but still believe that it is a possibility.
Anyway, “my client” did have Leopard installed on his MacBook Pro. So really I’m just having fun being a pretend lawyer on a posting forum. 🙂 Now I must check out of my Holiday Inn Express and get back to my full time position.
Apple needs to settle this ambiguity once and for all. As a Level 4 on Apple Discussions, I’ve heard the moderators haven’t yet set a guideline on how to deal with this issue. I basically stay out of such discussions, now that section C of the license specifically says upgrade from Leopard installed systems. The box does not say Upgrade when you buy $29.95, even though that’s what it says on the store. And the license agreement actually is not even on the CD, except when you run the installer. You can’t dig for the license on the CD, neither is it bundled with it. Only http://www.apple.com/legal/ has a copy of the license. Even then, it isn’t clear that it isn’t the $9.95 license, versus the $29.95 license. Apple I assume is thinking people in good faith will follow it. I’m sure many haven’t.
@gopher, For now at least there’s no need for further discussion. Apple clearly isn’t going out of its way to enforce that provision, and there’s little indication that’s going to change.
Peace,
Gene
Do you seriously believe the bundle is in the sales charts because of Tiger upgraders?
There was only a small number of machines sold in the window after Intel but before Leopard, and most of those people already upgraded to Leopard. Of those who didn’t, do you think they are the kind of folks who are rushing out in the first month to snap up Snow Leopard? Enough of them to put the bundle into the sales charts? I don’t think so.