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Psystar Antitrust Claim Against Apple Dismissed
Posted by
kdawson
on Wed Nov 19, 2008 05:40 AM
from the oh-give-me-a-clone dept.
from the oh-give-me-a-clone dept.
CNet has a report that a federal judge has dismissed Psystar's antitrust suit against Apple. Observers had said that the counter-suit embodied the Mac clone-maker's best chance of prevailing and staying in business. We've been following Psystar and the dueling lawsuits since the beginning.
Related Stories
[+]
Apple: Psystar Offers $399 "OpenMac" Computer 615 comments
mytrip writes to tell us that Psystar has announced a new line of Intel-based computers that promise to run an unmodified version of Mac OS X "Leopard". Unfortunately almost immediately after the launch their website went down and as of this story remains unaccessible. "Astute readers may well hear this news and ask themselves if it doesn't sound like a Mac clone, something whose time came -- during Gil Amelio's tenure at Apple -- and went shortly after current CEO Steve Jobs assumed the helm at the company. [...] It definitely defies the EULA for Mac OS X, which specifies that the purchaser of a legal copy of Leopard is entitled to install the operating system on an Apple-branded computer. If you buy the $399 OpenMac, you can check the EULA yourself if you also buy the pre-install option, as the company includes a retail copy of Leopard with your purchase."
[+]
Apple Files Suit Against Psystar 805 comments
Reader The other A.N. Other, among others, alerts us to the news that Apple has filed suit against Psystar, the unauthorized clonemaker. (We've been discussing Psystar from the start.) The suit alleges violation of Apple's shrink wrap license and trademarks, and also copyright infringement. News of the lawsuit, filed on July 3, first surfaced on a legal blog. There's speculation that the case has been sealed.
[+]
Psystar Will Countersue Apple 1084 comments
An anonymous reader sends us to CNet for news that Apple clone maker Pystar plans to countersue Apple. We discussed Apple's suit last month. "Mac clone maker Psystar plans to file its answer to Apple's copyright infringement lawsuit Tuesday as well as a countersuit of its own, alleging that Apple engages in anticompetitive business practices. Miami-based Psystar... will sue Apple under two federal laws designed to discourage monopolies and cartels, the Sherman Antitrust Act and the Clayton Antitrust Act, saying Apple's tying of the Mac OS to Apple-labeled hardware is 'an anticompetitive restraint of trade,' according to [an] attorney... Psystar is requesting that the court find Apple's EULA void, and is asking for unspecified damages."
[+]
Psystar Case Reveals Poor Email Archiving At Apple 123 comments
Ian Lamont writes "Buried in the court filings of the recently concluded Psystar antitrust suit against Apple is a document that discussed Apple's corporate policy regarding employee email. Apparently, Apple has no company-wide policy for archiving, saving, or deleting email. This could potentially run afoul of e-discovery requirements, which have tripped up other companies that have been unable to produce emails and other electronic files in court. A lawyer quoted in the article (but not involved in the case) called Apple's retention policy 'negligent.' However, the issue did not help Psystar's lawsuit against Apple — a judge dismissed the case earlier this week."
[+]
Mac Clone Maker Psystar Files For Bankruptcy 366 comments
StikyPad was one of several readers letting us know that Psystar has filed for Chapter 11 bankruptcy protection. We've discussed the Mac clone maker's battles with Apple extensively. The company apparently has over $250,000US in debt, and states that it cannot turn a profit in the current economy. "The Chapter 11 filing will temporarily suspend Apple's copyright infringement suit against Psystar, which is currently before the US District Court of Northern California. But once the bankruptcy protection is sorted out, the copyright case will resume." And PC Mag is reporting that, on the other side of the Atlantic, two new clone companies are just getting started. Like PsyStar, FreedomPC and RussianMac promise to deliver PCs with OS X preloaded.
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As much as I dislike Apple... (Score:2, Insightful)
Though I disagree with Apple profitting off OSS which they did not initially create. They might as well be Linspire, in that regard.
Re:As much as I dislike Apple... (Score:5, Insightful)
Parent
Re:As much as I dislike Apple... (Score:5, Funny)
Parent
actually, yes it does (Score:3, Interesting)
These could be considered as a form of echo question [sil.org]. Consider the example:
"I ate an entire bowl of thumbtacks."
"You ate an entire bowl of thumbtacks?"
"Yes."
Here the repair that's typically assumed to be part of echo questions is the entire sentence (which would likely be seen a semantically aberrant). There's no structural change to the sentence with the question mark (modulo some theory about hidden movement which I don't feel like working out). You'd probably hear an intonational change in speech.
Re:As much as I dislike Apple... (Score:4, Informative)
Other than that I do not think they have ever done anything other than what the licences were meant to allow them to do.
Parent
Re: (Score:3, Informative)
yes but free as in freedom not free as in beer.
btw i take it you new here.
Mac OS Forge (Score:3, Informative)
Well you can get all the sources here:
http://www.macosforge.org/ [macosforge.org]
And especially zfs and launchd could be interesting to Linux and BSD. But then the Linux community suffers heavily from Not-Invented-Here syndrome.
Re:As much as I dislike Apple... (Score:4, Insightful)
Why not? Most tech companies do this in some way.
Parent
Re: (Score:2)
As long as you distribute the source you're ok.
Re: (Score:2, Funny)
It's emphasize. Dear gawd.
Re:As much as I dislike Apple... (Score:5, Insightful)
They're not profiting off the Free & Open Source Software that they did not initially create. You can download that bit for free, no profit for Apple. Free of charge, completely.
What they're profiting from is the non-OSS part that they did create (or bought the rights to, in the case of the NeXT created segment) and the integration of the F/OSS that they use with their OS. That's their work and not covered by F/OSS licenses.
Parent
Re:As much as I dislike Apple... (Score:4, Informative)
They started with BSD code. Which is released under a BSD license which expressly allows this. What's the problem? You are free to make money off that stuff too if you like.
You can do that with Apache stuff too. Some OSS licenses expressly allow you to use their stuff as a basis for your own stuff. This is a good thing.
Cheers
Parent
Re: (Score:3, Insightful)
I disagree with Ford profiting off the car, which they did not initially create.
I disagree with Edison profiting off electricity which he didn't initially create.
I disagree with your assessment that OSS is somehow immune from future development and profitability if it is further developed by anyone that wants to have a go at it.
Perhaps you have a thing against Apple because you somehow see it as "stealing" the good work of people who put their code out there as open source (you know, free for anyone to use
Apple and GPL (Score:5, Informative)
There is quite a bit of GPL licensed software in Mac OS X. Your can download the sources for that part of OS X here:
http://www.macosforge.org/ [macosforge.org]
The sources to the BSD part of Mac OS X is there as well. And some of Apples own developments on top (launchd - Apples answer to init, cron and inetd - for example). launchd is pretty cool btw.
Parent
Other source (Score:3, Interesting)
There is also this web site:
http://developer.apple.com/opensource/ [apple.com]
Apple may not always be timely, but they do eventually get it out. Remember Although there is GPL stuff in there, there is also BSD stuff in there. With a BSD license they aren't required to give back, but Apple does. If you complain about Apple being late with the source, remember that in this regards their first priority is being a profitable business and the being a good open source citizen.
Where's the logic? (Score:5, Funny)
You see, whether or not you agree or disagree with the legal standing of this EULA, or that EULA... whether or not you have a position on all this stuff, whether or not you agree that the law needs to be codified more properly for modern times, changed to fit the needs of the public... whatever you think there are just simply weaker cases which need to be tested first.
These guys marched straight into the castle stronghold without a hope in hell, and pissed on the kings chips.
We all stood back watching, saying to ourselves... well, this won't go anywhere. This was stupid. These guys are going to get slaughtered.
And lo! It was stupid, it didn't go anywhere, and they just got it handed to them.
Re:Where's the logic? (Score:4, Insightful)
They took a gamble on how a very vague law would be interpreted by a judge. If they won, then they would have been sitting on a goldmine, having lost they will still have the paycheques they they took home each month. There was a lot of upside for hardly any downside.
Parent
There was a lot of upside for hardly any downside. (Score:2)
I wish they could win (Score:2, Insightful)
I hope they find an angle that works.
Really it is amazing how people will come out of the woodwork to support Apple in this. Sorry, I own multiple Apple products but I do not see how in the hell it is justified they can tell me or anyone else how to use their product once I buy it. This would be akin to Microsoft having said Windows only on Intel, using another processor violates the EULA. How far would have that gone?
Apple isn't denying Pystar business by suing them on grounds of copyright violation, th
I'm glad they lost (Score:2, Insightful)
This would be akin to Microsoft having said Windows only on Intel, using another processor violates the EULA
Except that Microsoft does say that with the Xbox and Xbox 360. They have 2 different platforms with 2 different lisencing strategies for their hardware. Windows is lisenced to anyone and everyone for an exorbinant fee, while the Xbox OS is not lisenced to anyone and used only for running hardware assembled and sold by Microsoft. Apple doesn't have any obligation to market it's computer OS the same way that MS does, and unless you have a problem with MS, Sony, or Nintendo marketing their OS the same way
Re: (Score:3, Insightful)
Except that Microsoft does say that with the Xbox and Xbox 360. They have 2 different platforms with 2 different lisencing strategies for their hardware. Windows is lisenced to anyone and everyone for an exorbinant fee, while the Xbox OS is not lisenced to anyone and used only for running hardware assembled and sold by Microsoft.
Microsoft doesn't sell the "Xbox OS" as a separate product. Apple does sell OS X independently of their hardware.
Re: (Score:3, Insightful)
Don't buy into the copyright cartel's bullshit. You bought a copy of the OS, just like you buy a copy of a book or a copy of a CD. Copyright law is founded on the idea that you sell copies of your work.
Put another way, if everything is licensed, there's no need for copyright at all, yet I'm sure that these companies would fight to the death any measure which ended copyright in favor of contracts.
You bought a copy. End of story.
Re: (Score:3)
+3 insightful to defend hostile EULAs and lawyering shenanigans? Wow. Is this slashdot?
Psystar isnt selling you a hacked product (and even if they did it wouldnt be wrong). They are selling hardware/EFI that works with the OS X installer.
Its no wonder we have no consumer rights and no hacker rights when people support abusive companies and support their right to keep us locked out of the products we own.
The countries that are producing kids who have opportunities to hack and make stuff have already started
Re:I'm glad they lost (Score:4, Insightful)
your MS Xbox analogy fails.
No it doesn't. they are both Operating Systems for running specific hardware designs. Their is only one Xbox 360 design, but if I were to go out and purchase all of the parts necessary, assemble the system, and get my hands on a copy of the OS from some hacker I could conceivably install the Xbox 360 OS on reference hardware and do the equivalent of what Pystar is doing. It would be no less illegal based on the EULA and copywrite law as it is written and enforced at the moment. That it would be more difficult to procure a copy of the installable OS doesn't invalidate my analogy.
If anything your "Bad Car Analogy" is worse than the one I used because tires are sold and not licensed as software is. I don't particularly like that software is licensed instead of sold but that's the state of things at the moment.
Parent
Re: (Score:3, Informative)
If the minimum wage employees at Best Buy tell you they are selling you software then they are wrong. It has become a common convention to refer to software license sales as software sales because in the vast majority of cases the result is the same.
The legal distinction exists for those who t
Re: (Score:3, Insightful)
It has become a common convention to refer to software license sales as software sales because in the vast majority of cases the result is the same.
If you have a problem with the fact that common convention gives a slanted view of reality, welcome to the club, but that doesn't mean anyone is doing anything illegal.
Case in point, but in the other direction. The Xerox company tried to sue a bunch of companies for using their trademarked word "Xerox", but they were slapped down by the court because they hadn't enforced their IP early enough. Consequently, they lost some of the protection normally
Re: (Score:3, Insightful)
This would be akin to Microsoft having...
Judge actually ruled that this is pretty much the exact opposite of 'This would be akin to Microsoft...'
This particular ruling isn't about the EULA aspect of the case, it's about the (alleged) monopoly abuse. Psystar's argument was that Apple had a monopoly in the market for computers running OS X, and therefore had to abide by the much stricter laws on what a company can and cannot do if it gets into a monopoly position. The judge said that 'computers running OS X'
Re: (Score:3, Informative)
However, the other part of the Sherman Act (illegal tying) was still not addressed. From
http://en.wikipedia.org/wiki/Tying_(commerce) [wikipedia.org]
Re:I wish they could win (Score:4, Informative)
You quoted only part of the text, and missed the critical bit.
Certain tying arrangements are illegal in the United States under both the Sherman Antitrust Act, and Section 3 of the Clayton Act. A tying arrangement is defined as "an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees he will not purchase the product from any other supplier." Tying may be the action of several companies as well as the work of just one firm. Success on a tying claim typically requires proof of four elements:
(1) two separate products or services are involved;
(2) the purchase of the tying product is conditioned on the additional purchase of the tied product;
(3) the seller has sufficient market power in the market for the tying product;
(4) a not insubstantial amount of interstate commerce in the tied product market is affected.
Look at point 3 - "sufficient market power."
Apple do *not* have sufficient market power (which is usually triggered by monopoly status) and therefore are not subject to laws against tying.
Monopoly status (or 'sufficient market power') triggers a whole raft of conditions which are not an issue before that point.
Parent
Re:I wish they could win (Score:5, Insightful)
Apple isn't denying Pystar business by suing them on grounds of copyright violation, they are denying you the right to purchase hardware supported by another vendor to run an operating system of your choosing.
So when it sends reports following crashes where do they go? Apple.
When someone files feedback or some such where does that go? Apple.
When something doesn't work as expected who gets the blame? Apple.
Apple gets bad rep and no financial recompense from Psystar's business model. Why is this something that should be allowed?
Parent
Re:I wish they could win (Score:4, Insightful)
Apple gets bad rep and no financial recompense from Psystar's business model
Unless you count the $129/sale from the boxed copy of OS X that Pystar include as a financial recompense...
Parent
Re:I wish they could win (Score:4, Insightful)
And it is some level of financial recompense, but it doesn't address the question of whether it's fair recompense. The $129 number is a price subsidized by the purchase of a Mac. That's essentially the "upgrade" price. We don't know what the fully retail price of OSX would be if Apple were licensing it for use on non-Apple computers, because Apple doesn't offer those licensing terms to anyone.
It may be that, if Apple chose to license OSX for generic PCs, they would charge $500 or $1000 per copy. We don't know.
So in light of that, it's not clear that the $129 is sufficient for Psystar to say, "But we bought copies of OSX fair and square!"
Parent
Re: (Score:3, Insightful)
Re: (Score:3, Informative)
Labelling the packages "Upgrade" but not enforcing any kind of technical measure against clean installs is called lying.
Nonsense. If so, selling a music CD with a copyright notice but no DRM to stop you ripping and uploading it is also "lying". I don't think so. Before product activation became commonplace most commercial software did nothing to enforce its license. Lots of publishers sell software "for educational use only" at a discount - the license says you can't use it for commercial purposes, but there's nothing to enforce it.
(See also "Internet Explorer is an integral part of Windows" [cnet.com].)
MS were accused of monopoly abuse by bundling IE with windows, and trying to claim that it wa
Re: (Score:3, Insightful)
What no one seems to see... (Score:3, Insightful)
Psystar is not modifying the OS. Check the details! They are not running a cracked or modified version of OSX on their systems. What they have done is created the EFI backbone so that will allow the OS will install run nativly on it. This is no different from when IBM made their machines, and people reverse-engineered the bios to make clones.
All apple has to get them on is that the OSX license stipulates that it MUST BE INSTALLED ON APPLE HARDWARE. This is EXACTLY the same if Microsoft turned around and said that windows can only be used on specific intel motherboard and cpu, and that only microsoft can decree what hardware is allowed to be used with it.
These guys are going to have a rough time of it, but I home that they succeed. Apple should not be the only hardware manufacturer allowed to run OS-X, no more than microsoft should be allowed to decree that windows is not allowed to run on AMD and Gigabyte.
We should be allowed a choice!
Re:What no one seems to see... (Score:5, Insightful)
This is EXACTLY the same if Microsoft turned around and said that windows can only be used on specific intel motherboard and cpu, and that only microsoft can decree what hardware is allowed to be used with it.
So, rather like the terms under which the vast majority of Windows licenses are sold, then?
Most new PCs come with an OEM version of Windows with a license that specifically restricts its use to the computer with which it was sold. Most "boxed" versions of Windows sold to consumers are "upgrades" which require that you have an existing copy. My employer has a Windows "site license" which entitles it to install any version of windows on its PCs but (last time I looked) only if they originally came with OEM Windows.
The only "get out" is that Microsoft will sell you a "Full Retail" version for 2-3 times the price of the OEM/Upgrade versions which most customers buy. If Apple do lose the court case (flap, oink), one work-around might be to hike the price of OSX to, say, $500-$1000 (not without precedent for certified Unix with a full dev kit) and offer an "upgrade" to existing OS X license holders (i.e. anyone with a Mac) for $130. If someone challenges that it would set some interesting precedents for Microsoft...
We should be allowed a choice!
Remember that when you go to buy a netbook (like the EEE) or OLPC and find that the Borg have been round and now, somehow, the Linux versions are now (a) more expensive and (b) not in stock. Funny that. Now if Apple tried that, everybody would flame them...
Parent
Re: (Score:3, Insightful)
I couldn't agree more (Score:5, Funny)
Re:If these guys couldn't bounce back
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Re: (Score:3, Insightful)
This is hilarious and yet I feel the same as AC. I'm so conflicted.
Re: (Score:2)
I just moved from OSX to Ubuntu a couple of weeks ago.
Benefits:
Downsides:
Re: (Score:2)
I just moved from OSX to Ubuntu a couple of weeks ago.
Benefits:
Correct me if I'm wrong but isn't multiple desktops exactly what spaces is for?
Re: (Score:2)
Possibly, but I feel the need to pay to find out. My laptop came with OS 10.4
Re: (Score:3, Interesting)
Security updates are free, but if I wanted fancy multiple desktops I'd have to pay to update to 10.5, and that doesn't sound very free to me. I was living okay without multiple desktops sure, but with Ubuntu I got them for free, and I am now in fact using them.
The OSX security updates also were usually quite tardy as Mr AC points out just above me. Took them months to get a patch out for that big DNS bug a few months ago for example.
Ubuntu has become a fairly polished OS. If I had an nVidia graphics card th
Re: (Score:3, Informative)
Re: (Score:3, Interesting)
The court has ruled that Apple does not dominate the market; therefore it has no monopoly position to abuse by means of a tying arrangement.
The point of prohibiting tying arrangements is that companies in dominating market position could not force sale of an undesirable good by tying it to a desirable good for which there is no meaningful competition.
So before you run around saying that no one is catching te tying arrangement, perhaps you
Re: (Score:3, Informative)
Once they buy it though, THEY OWN THE PRODUCT...
No, they don't because they never bought the software. They licensed the software with the license being null and void if they violate their end of the contract.
...and are free to do with it as they wish.
Just as long as they are willing to live with the potential consequences of their actions. Namely, the potential to be sued by the other party in the contract for violating that contract. No one is forced to enter into the contract with Apple, but if they want to use Apple's software they will be legally obligated to abide by that contract.
N
Re: (Score:3, Informative)
I don't know if the AutoCAD EULA contained prohibitions against re-selling the license. If they did, then that portion of the EULA would have been invalidated by the decision. However, that doesn't mean that t
Re: (Score:3, Informative)
Since the judge hasn't bought their argument, the Clayton Act doesn't apply, no matter how much any of us may want it to.
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If Microsoft released Windows 7 and only allowed it to be installed and run on Microsoft branded machines, how long would that last? About ten seconds, yes?
Yes.
Then why the hell can Apple get away with it?
Because Microsoft has a monopoly and is subject to anti-trust laws while Apple doesn't and isn't.
Don't get me wrong, I'm not an Apple fanboy--in fact, I tend towards mild dislike, and own none of their products--and I'm not even quite sure who I'm rooting for in this case (which is far from done), but I still have to admit that talking about a monopoly "in OS/X" is stretching things too far. I'd rather see PyStar lose this argument and then end up winning the whole case based on the doctrine of first s