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There are rather strong arguments that "use licenses" are null and void, on the grounds that the end user has purchased a copy of the software, and has no need to accept a license to gain permission to use what they now own.

Even if the end user accepts the license, since they have a pre-existing legal right to use it, it doesn't bind them as a contract because there is no "consideration" (i.e. quid pro quo) at that point. The user has already paid for the software, and usually to a third party. That completely releases the end user from any sort of contractual obligation regarding what they have purchased.

There are several legal precedents in favor of that conclusion, including United States v. Wise (1977), and Vernor v. Autodesk (2008). Autodesk could not use a license to prohibit someone from reselling a copy of software he had purchased from them. No music publishers with regard to audio CDs, nor book publishers with regard to books. Three cases, however, including Vernor, are currently on appeal to the Ninth Circuit (which made the decision in Wise). See here.

Whether one likes Apple or not, they are within their rights to sell whatever they want with whatever restrictions on it they choose

If Apple enters into a legally enforceable, properly formed contract with the end user, sure. However, the enforceability of retail EULAs with regard to use restrictions is subject to some considerable doubt.

If the "upgrade" edition installs or is installable on a machine without a previous version of the software or a copy thereof, copyright law in no way restricts the ability of an end user to purchase, install, and use the upgrade edition on a machine without prior ownership of a previous edition.

In addition, no one needs to accept a license of any kind to use a copy of software they have purchased at retail, although there is some legal controversy over that.

I never cease to be amazed how many people around here think that EULAs are legally binding without showing the least acquaintance with the legal issues involved. The short answer is, no they are not, although a few courts in a few areas have held that they are, to great controversy generally speaking. No one needs a license to use that which they own, and the idea that end users do not own a copy of the software they purchased at retail is extremely dubious. More here.

All that is needed to make software leases legitimate are two things:

(1) That they be for a limited time
(2) That the physical media remain the property of the lessor

An arrangement that is not for a limited time is not a lease, but rather a sale or a grant. There is no predecent in copyright law to make some sort of metaphysical distinction between the copy of software and the medium it is encoded on. You can't sell the media and retain ownership of the copy. When you sell the media the copy comes along for the ride. The media, as distributed, *is* the copy. See here.

It is not against the law to decline to accept a gratuitous license. No one needs to accept a EULA to use a copy that they have purchased. So many courts have held, following traditional legal precedents, anyway. The idea that EULAs are independently binding is a legal fiction, basically wishful thinking on the part of the software industry.

Of course it is a *real* violation of the law to make an illegal copy of the software.

It is certainly true that Apple can require you to return both the software and the hardware to get a refund. They don't need a EULA to do that.

The issue about EULAs is different - it is whether the end user must accept them to legally use the software they purchased. That proposition is in some considerable doubt. Under traditional principles of law, it is a slam dunk to the contrary. You don't need a license to use that which you own.

This case did not turn on the validity of the EULA, and that is a good thing, because the EULA's days are rightfully numbered - bizarre legal fiction that they are.

So they say. In reality, a retail EULA is mostly an exercise in wishful thinking.

At least half of the courts that have addressed the question in the United States have held that retail end user license agreements are legal fictions, because the copy is indeed actually owned by the buyer, and as such a license to use that which you already own is unnecessary (and hence superfluous). See here, for example.

I guess it's because those companies don't have those provisions in their license agreements

1. It is not settled law (to put it mildly) that the acceptance of a EULA is necessary to use a copy of software that you own. See here.

2. There is explicit federal law with regard to the right of a owner of a copy of a software program to modify that work as necessary to make it work on "a machine", provided that they do redistribute that modification. See 17 USC 1179(a).

Fortunately, stupidity that is made up by the courts can be corrected by the courts. See here.

There were a lot of problems with what Psystar was doing, but violating the EULA wasn't necessarily one of them. That assumes that a EULA is a legally binding, non-gratuitous license to use a work that the user does not own. Several courts disagree.

That is the theory anyway. It hasn't been uniformly upheld in the courts. Not only that, there are promising developments in the EULA wars:

http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/

Two other district courts in the Ninth Circuit have recently ruled the other way. That is the basis for my optimism. Check this out:

http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/

1. No, but they should - an agency relationship is one of the only ways they appear to be able to stay in business.
2. Some courts have deemed EULAs to be a legal fiction. One does not need a license to use a copy that they own. Check out:

http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/

3. The GPL can survive just fine, because it grants permission to do something that copyright law already prohibits. Short of going through the rigamarole of an agency relationship every time a customer wants to install a GPL illegitimate derivative work...

Copying the media in a copyright prohibited manner is a completely different issue. I am talking about the validity of EULAs as licenses necessary for the customer to use the software that they purchased. No one needs a license to use a copy that they own. Licenses grant rights that the licensee otherwise would not have.

There are new cases by the way. Check this article out:

      http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/

As the writer said, Vernor and Augusto here are a breath of fresh air.

The Ninth Circuit test seems likely to be revised in the relatively near future, in favor of something that doesn't require a degree in metaphysics to comprehend. This is the best article I have found on the subject:

http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/

Definitely worth reading.

I wouldn't be so pessimistic - check this out:

http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/

Windows, OS X, and yes, even Linux are licensed to you, with restrictions.

That is the fiction anyway, a fiction which is in serious danger of being overturned:

http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/

I'm not sure where slashdotters get this idea that you are allowed to do anything you like with software you have purchased (besides redistribute it), because it doesn't have any basis in reality.

The First Sale Doctrine, Title 17 Section 109 perhaps?

They are bound by any legal licensing terms

You are assuming that EULAs are valid licenses. A license grants permission to do something that the licensee otherwise does not have the right to do. This is not the case - a retail customer does not own the copyright, but they do own the copy. No license is necessary to use something that you own.

Check out http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/

That is all assuming that the license here isn't an entire legal fiction. A license is permission to do something one does not already have the right to do. No one needs a license to run a copy of a program that they own anymore than they need a license to read a book that they own.

The legal fiction behind EULAs is the attempt to make an end run around the first sale doctrine (17 USC 109) by the unprecedented claim that they not only hold the copyright, they own the copies as well. The writing appears to be on the wall for that dubious proposition.

See http://cyberlawcases.com/2009/08/31/the-copy-ownership-cases/