It seems that a week doesn’t go by that we don’t have someone in the community asking about Hackintosh computers. Hackintosh is a nickname given to a PC, made of non-Apple components, which runs on some version of OS X. Simply put, this is seen as an inexpensive method of building a Mac without having to pay a premium for the Apple hardware.

There is a reason we at LockerGnome don’t have Hackintosh tutorials on the site. It isn’t because these systems have a sketchy track record consisting of instability, a setup process that is usually too complex for the average user, or out of any fanboyism on the part of the writers. The primary reason is simply that doing so is in violation of the end-user license agreement (EULA) from Apple for OS X.

The question being answered in this article isn’t whether or not it’s right or ethical to build a Hackintosh. The question is whether or not it’s potentially illegal to do so.

While Apple itself was founded on the roots of hacking and modifying software and hardware to do something it wasn’t originally intended to do, today’s Apple is one of the largest and wealthiest corporations in the history of commerce. Each Apple-branded computer sold is important to Apple’s bottom line. That bottom line gives people jobs, pays taxes, and makes it possible for us to benefit from the software and hardware innovations Apple is making available through its products.

If Apple made $29 instead of $1,000 for every Mac user out there, we would never have the iPhone, iPad, iPod touch, or possibly even any of the similar products made available by its competitors. If iOS never existed, would Android? These are difficult questions to answer, and ones that are probably best left for another day.

Here are some points to consider before heading down the path of forcing OS X to run on your old PC.

Is it Legal to Sell a Hackintosh?

The end-user license agreement for Apple’s flagship operating system (OS X) has been interpreted in a number of ways since the beginning for the Hackintosh controversy. If you ask the courts that handled the Psystar case, ruling in favor of Apple, the answer would be a most definite no.

Psystar was an interesting case. The company actually sold computers pre-designed to accept OS X as a native operating system. As much as Psystar tried to circumvent the EULA by proving a bundled copy of OS X and not actually installing the software itself, Apple’s lawsuit was successful, winning damages and multiple appeals against Psystar, which has since been permanently barred from selling its Hackintosh systems.

That’s a case where the systems were sold, but what about home users who are building them for friends and/or family? Are they breaking the law?

Don’t I Own the Software?

Let’s get one thing out of the way. You don’t own your copy of OS X, even if you bought a USB thumb drive with Lion pre-installed. Apple licenses its software to you, and you technically rent it from the company for life by paying the initial fee. When you purchase a Mac, you are purchasing the hardware in conjunction with a license for the software. That license is based on a specific set of requirements that must be met in order to be used within the boundaries of the law.

Here is an excerpt from the OS X Lion EULA:

The Apple software (including Boot ROM code), any third party software, documentation, interfaces, content, fonts and any data accompanying this License whether preinstalled on Apple-branded hardware, on disk, in read only memory, on any other media or in any other form (collectively the “Apple Software”) are licensed, not sold, to you by Apple Inc. (“Apple”) for use only under the terms of this License. Apple and/or Apple’s licensors retain ownership of the Apple Software itself and reserve all rights not expressly granted to you.

What About Making One for Myself, or a Friend?

It’s easy to overlook the EULA when you’re in the privacy of your own home, working with your own hardware. The question being answered in this article is whether or not it is illegal (unlawful) to build a Hackintosh using Apple’s software on non-Apple branded hardware.

With that question in mind, the simple answer is yes. Because you don’t actually own the software you’re installing on the machine, even if you purchased a physical copy, it isn’t really your right to install it unless it meets the specified parameters of the license agreement. The license agreement is very clear in this regard:

The grants set forth in this License do not permit you to, and you agree not to, install, use or run the Apple Software on any non-Apple-branded computer, or to enable others to do so.

In fact, the third line on the top of the document states “For use on Apple-branded Systems.”

While it could be argued that it would be difficult for Apple to find a needle in a haystack that is the home hobbyist Hackintosh maker, the purpose of this article is to determine whether or not creating one could be considered infringement.

There’s a misconception circulating that what you do with your hardware and your software is your business. It is, but only if you own both the hardware and software. In this case, you don’t. That’s the rub, and the reason so much controversy has derived from this seemingly simple situation.

What About if I Install it On a Virtual Machine?

Virtual machines aren’t technically Apple-branded hardware, so do they count? Actually, Apple has taken virtual machines into account in the EULA. You are allowed to install up to two instances of your OS X license within a virtual operating environment, as long as that virtual machine is running on an existing copy of the same operating system.

From Apple’s EULA:

…to install, use and run up to two (2) additional copies or instances of the Apple Software within virtual operating system environments on each Mac Computer you own or control that is already running the Apple Software.

What About Reverse Engineering the Code for ‘Educational’ Reasons?

Reverse engineering Apple’s code is how some of the more popular Hackintosh projects came about. By mimicking Apple’s boot loading software, and creating an environment that looks to the OS as if it is actually an Apple-branded system, the engineers behind the projects have effectively reverse-engineered part of Apple’s software.

According to Apple’s EULA:

You may not and you agree not to, or to enable others to, copy (except as expressly permitted by this License or by the Usage Rules if they are applicable to you), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Apple Software or any services provided by the Apple Software, or any part thereof.

This brings up the bigger (and more popular argument) of whether or not OS X is built on open source platforms which would make it legal to reverse engineer. Apple actually does allow you to modify portions of its software that are derived from open source works. It’s covered in the EULA. However, the majority of the operating system that evolved from its initial founding is built on Apple’s dime, making it off-limits.

You may modify or replace only these Open-Sourced Components; provided that: (i) the resultant modified Apple Software is used, in place of the unmodified Apple Software, on Apple-branded computers you own or control, as long as each such Apple computer has a properly licensed copy of the Apple Software on it; and (ii) you otherwise comply with the terms of this License and any applicable licensing terms governing use of the Open-Sourced Components.

What’s the Worst That Can Happen, Really?

We decided to pose questions regarding the legality (and possible resulting legal actions) surrounding the Hackintosh to Attorney Brett Trout, an Iowa patent lawyer licensed to practice before the United States Patent and Trademark Office. He specializes in intellectual property and information technology issues, and knows a thing or two about the controversy surrounding this issue.

“The bottom line is that it does not really matter if it is legal or illegal, if no one has the money to get to a jury.” He said, “Apple can bring causes of action for breach of contract, copyright infringement, violations of the Digital Millennium Copyright Act, etc. and no one is going to want to spend the hundreds of thousands of dollars it would take to get to a jury.”

Simply put, these cases are expensive to both parties involved. Apple has enough money to cover legal fees that far exceed the abilities of the average Joe. Taking your case to a jury costs big bucks as defending yourself in court isn’t cheap.

Brett Trout went on to explain, “Even if you could get to a jury, you run the risk of not being able to convince the retired people on the jury that you are right and Apple is wrong.”

While the burden of proof is on the prosecution, it’s hard to argue your case against a company as large as Apple. Jurors are faced with having to choose between a single individual that decided to circumvent a EULA or an international corporation that would appear to know exactly what its software is and isn’t supposed to do. Remember, you don’t own your copy of OS X.

It can’t be all bad news. Brett went on to say, “The only thing you would have going for you is that before you got sued, it would be tough for Apple to find you and it would be a net financial loss for Apple to sue you, even if [it] won.”

Final Thoughts

Going in to this article, I wanted to give a fair answer to a question being asked in courts and in chatrooms across the world. Apple lost a significant battle when it came to jailbreaking iOS devices as it attempted to control the software installed on a piece of hardware. In this case, it’s protecting the software, and things are a little different.

One area in which most of the confusion surrounding legality seems to be caught up is when OS X is compared to Windows or Linux. OS X is very different from both of these platforms, as it is intended to run on a specific piece of hardware. Apple includes OS X on every Apple-branded computer, and the software it makes available in stores is simply intended for upgrades, and not as a full version.

Just as you would be violating terms and agreements by forcing an upgraded version of Windows to run as a clean install on a blank disk, running a purchased version of OS X after the fact is also a violation.

Bottom line: Apple is a hardware company that happens to create software intended to boost the value of its hardware. Microsoft isn’t a hardware company — at least, not a computer manufacturer. Microsoft makes software with the explicit purpose in mind of being able to run on hardware from a wide range of manufacturers. Apple creates software to make its hardware more valuable to the user.

Just as Ford wouldn’t be happy to find a car company installing Sync on non-Ford branded vehicles, Apple has every right to protect what makes its products unique.

This isn’t to say that Apple is going to have police breaking down your door and throwing you in jail for building a Hackintosh. The chances of that are probably about the same as being caught pirating music, movies, and other software.

In a final word of caution from Attorney Brett Trout, “That being said, if [Apple] did find you, and/or wanted to make an example out of some people, it would be a very expensive, very ugly situation.”