Comment by torstenvl | Hacker News Reader

Comment by torstenvl | Hacker News Reader

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> Does anything in copyright law entitle Apple to impose conditions on the use of software it gives away for free online (e.g., that it may be run only on Apple hardware)?

No. Nothing in copyright law allows this. However, everything in contract law allows this.

Copyright law forms the underlying background situation only. Under 17 U.S.C. § 106, the default is that only the copyright owner may make copies (including, e.g., the copy made when installing the software or the copy made into memory when running it).

However, those exclusive rights may be licensed to others. (Under 17 U.S.C. § 117, a software licensee, or the lawful owner of a copy of the software, may always copy the software to install/run or to make an archival copy.)

Licenses are governed by contract law. Contract law typically consists of an offer, acceptance, and some thing of value traded by each side. Restatement (Second) of Contracts, § 17(1).

The thing exchanged can be a promise, a forbearance (i.e., a license), a conditional promise, or any number of things. Restatement (Second) of Contracts, §§ 71-81.

In this case, the license to copy the software to your internal storage and from there into RAM is offered conditionally. In return, you promise not to run it on non-Apple systems. If you break your promise, the conditions of Apple's license to you are triggered and your license terminates. All of that is governed by contract law.

The backstop to that, though - the legal stick - is that now you're using an unlicensed copy and continuously copying it into RAM to use it. That is what opens you up to copyright violation liability.

I thought there needed to be 2 parties in agreement to enter a contract. I don't know much about how Corellium does business, but if they can get their hands on iOS images without specifically agreeing to a contract - is there a contract?

Perhaps the whole EULA thing is old news but I'm still not sure if I'm bound to every condition stated in a EULA when my cat clicks "Agree"... I thought at one point, the courts ruled that EULAs are pretty toothless. These are honest questions - I have no clue.

> if they can get their hands on iOS images without specifically agreeing to a contract - is there a contract?

If I can get my hands on your car without specifically agreeing a contract to pay for it, ...

The issue with this argument is that there can only ever be once instance of my car in existence at a given time. If you take my car, I don't have it. If you download a copy of my software that I give away for free and use it in a way I don't want you to, that doesn't stop me (or anyone else) from using it. That's not to say that there isn't some argument that using software against the terms of a license should be illegal; I just don't think the analogy to physical goods is a very good one.

What's the difference between you owning a car and you having the right to use a communal car?

The core of the legal concept of property is the right to exclude others. This is an academic philosophical lens to view it through, but it's fundamental to understanding how the law treats these things. "Property" isn't a physical thing itself, it's your right to exclude others. (This, by the way, is also a useful lens through which to view Fourth Amendment jurisprudence).

The property you're "stealing" in a copyright infringement case isn't the bits themselves. The property is the right to exclude others from copying, publicly performing, etc. By doing so without a license, you're denying the software licensor the ability to exclude you.

> Perhaps the whole EULA thing is old news but I'm still not sure if I'm bound to every condition stated in a EULA when my cat clicks "Agree"... I thought at one point, the courts ruled that EULAs are pretty toothless. These are honest questions - I have no clue.

IANAL but I would be really surprised if courts are as lenient with businesses as they are with consumers. I think it's unreasonable to expect a normal person to be able to go through the EULA of every product they use. I don't think it's unreasonable to expect a business to understand whether the way they are making money is legal.

> but if they can get their hands on iOS images

They are freely available for download from Apple.

See here for handy index: https://ipsw.me/

> Contract law typically consists of an offer, acceptance, and some thing of value traded by each side. Restatement (Second) of Contracts, § 17(1).

"some thing of value" - usually termed "consideration".

What is the "consideration" that Apple receives?

If Apple grants no license, the other party cannot do anything with the software, including those uses that would remain forbidden under the license. In granting a license, Apple allows some uses, but retains some limitations. Thus, Apple has only granted rights to the other party, and has received nothing in return that Apple did not have before.

They receive something of value - the promise not to violate the terms of the license.

"But wait!" you say. "That seems circular!" Indeed. The issue comes from a slight ambiguity in the term "license." The word is used both to mean the contract between Apple and the licensee, and the permission granted in that license. Strictly speaking, the former is a "license agreement," but referring to the agreement just as the "license" is commonplace.

Indeed, the first line of the iOS Software License Agreement reads: "PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING YOUR iOS DEVICE"

Apple gives you permission to use (and, to some extent, copy) iOS. In return, you give Apple a promise to use the software in accordance with the terms of the license. You also give Apple other consideration, such as a waiver of liability in the event that you view indecent or offensive material on your iOS device.

Your point is an astute one. Section 73 of the Restatement (Second) of Contracts reads: "Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration; but a similar performance is consideration if it differs from what was required by the duty in a way which reflects more than a pretense of bargain."

However, there are other things you give up, as noted above. Additionally, in all practical reality, courts are generally loathe to invalidate a license agreement or any other contract for insufficient consideration.

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