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Psystar Will Countersue Apple 1084

Posted by kdawson
from the take-that dept.
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."
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Psystar Will Countersue Apple

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  • In a word... (Score:4, Insightful)

    by bigstrat2003 (1058574) * on Tuesday August 26, 2008 @06:35PM (#24757965)

    /popcorn.

    I really hope Psystar wins this one. Apple (and they aren't the only one, just the subject on hand at the moment) really needs to get told where to stick their monopolistic behavior. If you release a product to the market, then you have no business telling people what they can and can't do with it once they've bought it.

    • Re:In a word... (Score:5, Insightful)

      by Microlith (54737) on Tuesday August 26, 2008 @06:37PM (#24757995)

      If Psystar wins, it'll be a pyrrhic victory.

      Apple will just kill retail sales of OS X upgrades, and do it all through the iTunes store. Won't prevent hackintoshes but it'll kill Psystar's ability to ride Apple's development efforts.

      • Re:In a word... (Score:4, Insightful)

        by Mr2001 (90979) on Tuesday August 26, 2008 @06:43PM (#24758065) Homepage Journal

        By "ride Apple's development efforts", you mean "purchase an Apple product at retail and resell it", right?

        Surely you don't think Apple is losing money on the deal or being taken advantage of in any way. If anyone knows how to set retail prices high enough to guarantee profit, it's Apple.

        • Re:In a word... (Score:5, Insightful)

          by Microlith (54737) on Tuesday August 26, 2008 @06:48PM (#24758111)

          "purchase an Apple product at retail and resell it"

          According to the EULA, the retail boxed copies of OS X are meant as upgrades to prior versions of OS X. Much like how MS sells upgrades of Vista from XP for considerably less than the full retail version (at least they used to.) Were a company selling PCs that were installed from non-OEM upgrade copies of XP, MS would have their heads.

          Of course, if Psystar won here you would probably see an explosion of PCs sold with upgrade versions of Windows instead of full retail copies. Apple will just kill off the retail channel for upgrades of OS X.

          • Re:In a word... (Score:4, Interesting)

            by WK2 (1072560) on Tuesday August 26, 2008 @06:55PM (#24758191) Homepage

            Windows PCs are sold with OEM copies of Windows, which are cheaper than retail upgrade disks. If Pystar won this suit, MS might just stop selling upgrade versions. Or not. They would still have their technical measures, and most people wouldn't know about this suit anyway. Apple might implement technical measures to prevent their upgrades from installing without a prior version.

          • Re:In a word... (Score:5, Insightful)

            by Wesley Felter (138342) <wesley@felter.org> on Tuesday August 26, 2008 @07:00PM (#24758249) Homepage

            A full OEM copy of Windows is actually cheaper than an upgrade copy, so MS provides no incentive to cheat the system.

          • Re: (Score:3, Insightful)

            by drsmithy (35869)

            According to the EULA, the retail boxed copies of OS X are meant as upgrades to prior versions of OS X.

            What's really funny, is that usually discussions about "buying OS X" are explaining how it's cheaper than Windows because $129 gets you a "full version", rather than an "upgrade".

            • Re:In a word... (Score:4, Informative)

              by slyn (1111419) <ozzietheowl@gmail.com> on Wednesday August 27, 2008 @12:50AM (#24761357)

              According to the EULA, the retail boxed copies of OS X are meant as upgrades to prior versions of OS X.

              What's really funny, is that usually discussions about "buying OS X" are explaining how it's cheaper than Windows because $129 gets you a "full version", rather than an "upgrade".

              Actually, most people say that its cheaper than buying windows because $129 gets you the "full version" rather than the "Not-quite-Ultimate-non-business-but-still-better-than-basic 32-bit Vista Upgrade Edition".

              Just for fun I checked on Newegg to see if it was still like this, and theres a Basic, Business, Premium, and Ultimate version, in both upgrade an non-upgrade variants, and in both 32-bit and 64-bit variants.

              The "full version" of vista, Ultimate, is $169 on Newegg, which, if I need to remind you, is more expensive than the OS X "full version" upgrade.

          • not exactly right... (Score:4, Interesting)

            by GuyverDH (232921) on Tuesday August 26, 2008 @07:40PM (#24758719)

            Apple will just kill off the retail channel for upgrades of OS X.

            Actually if psystar wins here, and Apple closes off the retail channel, then chances are a return lawsuit will follow and Apple will have more than it's wrist slapped... aka - they will be forced to offer OS/X to anyone that wants it...

            • by mudetroit (855132) on Tuesday August 26, 2008 @09:11PM (#24759569) Journal
              I agree they will try, but they will lose that lawsuit. You can't really force a company to sell a product. It is honestly a double edged sword for Apple though. Because eliminating your retail sales of OS X upgrades is a hit in revenues.
          • Re:In a word... (Score:5, Insightful)

            by joocemann (1273720) on Tuesday August 26, 2008 @08:26PM (#24759159)

            You cannot install an upgrade copy of windows without an older copy to 'upgrade' from. It is a requirement.

            AFAIK the OSX allows you to install it without that requirement.

            Seems more like apple wants the best of both worlds and will soon be wondering how it all came to an end.

          • Re: (Score:3, Interesting)

            by v1 (525388)

            According to the EULA, the retail boxed copies of OS X are meant as upgrades to prior versions of OS X

            You can buy a retail OS X and install it onto a computer that has never had OS X on it. (ok, prior versions of OS X I mean, 10.2 and 10.3 for example, would work on a late os 9 shipped mac)

            The actual wording says you can only install it on a macintosh computer. that's the catch.

            Apple has never sold an upgrade for their os X. They've put out significant updates that required the prior version... 8.1, 8.5,

        • Re:In a word... (Score:5, Insightful)

          by korean.ian (1264578) on Tuesday August 26, 2008 @06:50PM (#24758131)
          If Apple was a software company, then they wouldn't be losing money. Since Apple sells complete packages and makes most of their money on hardware sales, if Psystar wins, it could spell the end of Apple. Without Apple, no more OS X development. Parasites are never beneficial to anything but themselves.
          • Re: (Score:3, Insightful)

            by Darkness404 (1287218)

            If Apple was a software company, then they wouldn't be losing money.

            Then explain to me why Apple is making iLife, OS X, iPhone OS, iTunes, etc.

            it could spell the end of Apple. Without Apple, no more OS X development. Parasites are never beneficial to anything but themselves.

            Riiiight, like you know how MS managed to go bankrupt after IBM PC compatible clones came on the market.

            Apple can live on the iPod, iPhone, and the Macs. Sure, some people will go buy OS X and install it on a normal computer, that still makes money for Apple you act as if OS X is somehow some radically new OS. It isn't. It is BSD with a nice GUI and Coco, etc. All the various versions of OS X do is change up the GUI, fix so

            • Re: (Score:3, Insightful)

              by Have Blue (616)
              Then explain to me why Apple is making iLife, OS X, iPhone OS, iTunes, etc.
              All of those come free with Apple hardware (and one, iTunes, is free to everyone with no strings attached). They add value to the integrated products Apple offers; you can't assume their development would be sustainable if they were all that was on sale.

              Microsoft can get away with being an OS- and office-only company because they have 20 times more customers buying Windows. You can bet they don't spend 20 times as much developin
            • Re:In a word... (Score:5, Insightful)

              by nine-times (778537) <nine.times@gmail.com> on Tuesday August 26, 2008 @11:36PM (#24760823) Homepage

              Then explain to me why Apple is making iLife, OS X, iPhone OS, iTunes, etc.

              In order to sell their hardware. I mean, come on-- you listed iTunes, which they don't even sell in any form. It's completely free, which should make it obvious that it's 100% to sell iPods.

              But all of their software is aimed at selling hardware. Even iWork and their Pro apps (which don't come free with their hardware) are clearly aimed at making OSX a viable platform in various professional environments. It's all about selling their hardware.

              Riiiight, like you know how MS managed to go bankrupt after IBM PC compatible clones came on the market.

              Yeah, and just look at IBM's thriving PC sales!

              All the various versions of OS X do is change up the GUI, fix some bugs and add in a couple of new features.

              Isn't that sort of what software upgrades do? The update the GUI, fix bugs, and add new features.

              Charging $100 for an OS is enough money to keep development of it going. You act as if Apple sells OS X as a loss, which they clearly don't.

              Microsoft charges more than $400 for Vista ultimate, and Apple doesn't move the volume that Microsoft does. How do you know that $100 is enough to support OSX's development. Do you have access to Apple's budget?

        • Re:In a word... (Score:4, Interesting)

          by larry bagina (561269) on Tuesday August 26, 2008 @06:57PM (#24758219) Journal

          OS X is subsidized by hardware sales. The last time they sold an OS that wasn't subsized by hardware sales, it was OpenStep, and it sold for ~$800. ~$1600 if you wanted the development version.

    • Re: (Score:3, Insightful)

      by 2nd Post! (213333)

      The law says monopolies are legal, so therefore monopolistic behavior is legal.

      What is illegal is anti-competitive behavior.

      And... we have this construct called intellectual property and laws that tell us what we can and cannot do with intellectual property. It powers copyright, which gives the GPL it's ability to provide copyleft (if you violate copyleft, you have also broken copyright for example).

      In this case Apple is using a specific IP to it's advantage; copyright means Apple specifically limits what c

      • Re:In a word... (Score:5, Insightful)

        by jmorris42 (1458) * <jmorris.beau@org> on Tuesday August 26, 2008 @07:56PM (#24758907)

        > ..we have this construct called intellectual property..

        Never use that phrase around here, we know better. Copyrights, Patents and Trademarks exist. None of those permit a EULA and with out the Apple EULA being an enforcable contract there is no grounds to stop what Pystar is doing.

        > copyright means Apple specifically limits what copies an end user can make

        Correct. But Pystar is buying retail boxed copies of OS X. Were they making illegal copies the case would have been over before it started with everyone involved snatched up in an FBI raid.

        > In this case Psystar does not have the license from Apple to distribute copies.

        Of course they do. One is free to resell an item they bought legally.

        > The EULA is very clear that the distribution license for OS X only allows for a single copy on an Apple
        > branded machine, and OpenPCs are not Apple branded. To use the GPL as an example, it would be the same
        > case if OpenPC preinstalled a modified Linux kernel without providing the source.

        First off the acronym itself gives the game away. An "End User License Agreement", even if they were legal, would only be binding on the end user. Pystar isn't.

        As for your stupid (sorry, this one gets batted down weekly, use Google before opening your piehole on a GPL FAQ issue) argument trying to make an equivelence with the GPL it just doesn't track. The GPL is a grant of rights above and beyond what normal copyright grants while a EULA is a subtraction without any consideration. So I can toss Apple's EULA into the nearest bin and still have all of the rights under law I had before. I have the right to own the copy I bought, use it, etc. I don't have the right to reproduce it (outside of working copies made as typical use of the material) or publicaly perform it (not very applicable to most software) but there is no legal question whether I lawfully own a copy.

        Now consider your hypothetical. If I give you a copy of Linux you lawfully posses that copy of Linux in exactly the same way I would own my copy of OS X sans EULA. You could do anything copyright law permitted, including sell it. You could sell/give away the ONE copy I gave to you. To do anything else with it, like preload it onto a line of computers, you would be required either to lawfully obtain a copy for each machine from a source licensed to reproduce that Linux distro OR to agree to abide by the terms of the license agreement and thus become a licensed source yourself. See the difference now? Read the GPL.

    • Re: (Score:3, Insightful)

      by speedingant (1121329)

      /popcorn.

      I really hope Psystar wins this one. Apple (and they aren't the only one, just the subject on hand at the moment) really needs to get told where to stick their monopolistic behavior. If you release a product to the market, then you have no business telling people what they can and can't do with it once they've bought it.

      How is Apple monopolistic? Is Microsoft & Linux not competition? Apple only owns 8% of the market, hardly monopolistic.. They can charge whatever they like if people pay for it. And if you don't like that, go buy a Dell.

    • Re: (Score:3, Interesting)

      by teknopurge (199509)

      How can you say Apple is "Monopolistic" ? And what gives you, or I, the right to tell Apple how they can engineer their equipment? Apple is not a monopoly - if you don't like Apple hardware go buy your own and put Linux or Windows on it.

      Pystar is trying to ride the coattails of Apple's marketing department and the brand they have created. Does it make any more sense to sue GE for the software/operating system to any of the Nuclear Reactors they design? Pystar is playing off of the emotions of the uneduc

    • Really, people say this, but don't appear to understand what that means, with respect to the legal ramifications.

      Apple doesn't have a dominant position in its market. In terms of computer sales in Q2 08, they're 3-4 times smaller than HP or Dell. In terms of OS sales they're way behind Microsoft. In terms of monopolistic behavior, there's no evidence of predatory pricing, limiting supply, or price gouging. They are tying their OS to the hardware, but that's not illegal nor can it be called monopolistic

  • by JWman (1289510) on Tuesday August 26, 2008 @06:37PM (#24757997)
    If Apple would ever come to be regarded as evil as Microsoft is. I personally believe that Apple's business practices would make them far worse than MS if they had 90% of the market instead of 7%.

    They are able to survive because they are filling a niche market, leading me to believe that they will not be a serious competitor to MS anytime soon.

    In the meantime I await the continual improvement of linux to cause a critical mass of marketshare so that vendors will finally start giving it proper support....

  • Raminfications (Score:5, Interesting)

    by sincewhen (640526) on Tuesday August 26, 2008 @06:43PM (#24758057)
    This would have interesting ramifications if the countersuit was to succeed, and Apple forced to change the licencing restriction so that anyone could legally run OSX on non-Apple hardware.

    I don't belive it would be in Apple's corporate culture to embrace such a change and push OSX as an alternative to Windows - they are making too much money doing what they currently do.
    So I assume that means they would try to tie the OS to their hardware with code. Which may be enough to preserve the current situation - while it wouldn't stop hackers, it would discourage the vast majority of people.
  • by Foofoobar (318279) on Tuesday August 26, 2008 @06:43PM (#24758063)
    The argument by Apple is going to be made that they are an appliance manufacturer and that they sell the OS and support the OS only for the appliances they sell. They offer it for sale as an upgrade to their appliance for those who do not wish to purchase a new appliance and as a convenience to their consumers.

    So they are not a monopoly by any means but they cannot argue that a third party cannot support that software as long as it does not imply support or cause any damage to existing company.
    • by langelgjm (860756) on Tuesday August 26, 2008 @06:59PM (#24758247) Journal

      I don't think the argument is that Apple is a monopoly, but rather that they're engaging in anticompetitive behavior - tying the purchase of one product (the OS) to another (the computer).

      I don't see how Apple could ever be compelled to provide support on any hardware it doesn't deem acceptable. If they were to lose, maybe the outcome will be that if you sell an OS, you don't have the right to restrict its use to particular hardware.

      • by TechForensics (944258) on Tuesday August 26, 2008 @08:14PM (#24759063) Homepage Journal

        One of PsyStar's claims is Restraint of Trade. It is easy to see how that would apply if Apple merely had sole control of the distribution channel for a certain title of software, but where *Apple is the creator / author* of the software I think we have a different situation. The creator / author, it would seem, can create and sell only as many copies as it wishes, and in fact can probably sell only to those it wishes to sell to. PsyStar (regrettably) is going to lose big here, but maybe not before it makes a bundle prior to Apple's changing how it sells or licenses its OS.

        In fact, it wouldn't surprise me if PsyStar has been planned as a time-limited venture to make the biggest possible pile before the loopholes are plugged. Most likely, their analyses tell them their profits will exceed their legal fees + settlement payments.

  • by fishthegeek (943099) on Tuesday August 26, 2008 @06:50PM (#24758133) Journal
    In other news Don Quixote was recently introduced as the new president of Psystar.
  • by mpapet (761907) on Tuesday August 26, 2008 @06:53PM (#24758163) Homepage

    These events alone will generate $1MM+ (million??) in legal bills. We all know Apple won't stop until psystar is closed and will use it as an example to every american with a similar idea. You know, heads on a stick at the city gates and all that.

    So, where's psystar's money coming from?

  • If Apple wins... (Score:5, Interesting)

    by QZTR (1351145) on Tuesday August 26, 2008 @06:55PM (#24758181)

    Will it be because they're right, or becuse they're rich?

  • by erroneus (253617) on Tuesday August 26, 2008 @06:57PM (#24758213) Homepage

    If this works, then people could make clone Nintendo game units, Sony game units and the like, opening the door for a new level of "fair use" doctrine.

  • hmmm (Score:5, Insightful)

    by thatskinnyguy (1129515) on Tuesday August 26, 2008 @07:43PM (#24758757)
    You can install Windows on a Mac. And that's fine. But install OSX on a PC and Apple throws a hissy fit... Am I missing something here?
    • Re:hmmm (Score:4, Insightful)

      by gnasher719 (869701) on Tuesday August 26, 2008 @07:58PM (#24758931)

      You can install Windows on a Mac. And that's fine. But install OSX on a PC and Apple throws a hissy fit... Am I missing something here?

      Yes. If you want to install Windows on a Mac, you need to ask Microsoft (can I install your OS on a Mac) who says "yes", and you need to ask Apple (can I install Windows on your computer), who also says "yes". Apple says "yes" because they try to be nice to customers who bought expensive Apple hardware.

      If you want to install MacOS X on a PC, you need to ask the PC maker (no idea what they think about it), and you have to ask Apple (can I install MacOS X on my Dell?) who says "no". Apple says "no" because they don't want anyone but customers who bought expensive Apple hardware to use their OS.

  • Apple's brand. (Score:3, Insightful)

    by suck_burners_rice (1258684) on Tuesday August 26, 2008 @07:52PM (#24758861)

    Ok. Let me get this straight. Apple makes an operating system and the license agreement that comes with it states that you have to run it on Apple branded hardware. When you get an Apple labeled computer and run the Apple labeled operating system on it, it works like a mortal luser would expect it to. For damn nearly the entire population of Apple computer users, it does what they need it to do and they run around spouting, "Macs rock! PCs suck!"

    Ok, now imagine what would happen if every computer company out there decided to provide Mac OS X with their computers instead of Windoze Vista or whatever they're installing on garbage prebuilt computers nowadays. Suddenly OS X won't be quite as great anymore because it will have all kinds of subtle failures and stuff. First, the hardware can induce failures that are no fault of the software. Further, if the hardware is fine but operates somehow differently from Apple hardware, bugs in OS X which don't manifest themselves on a Mac will crop up. Some would argue that this is good as it helps to find and fix those bugs. But do you honestly think Apple will achieve what it does if its engineers suddenly spend their time making OS X work around the characteristics of hardware they have no control over? Do you think Apple has the time to go testing OS X on every five dollar garbage motherboard that some cheapskate company decided to put in a computer?

    What will happen to Apple's brand if that happened? Oh! Suddenly people will go around saying how much OS X is the suxx0rz because it crashes and it deletes data and it locks up and all this shit, EVEN IF IT'S NO FAULT OF THE SOFTWARE! Because the lusers don't know what comes from software and what comes from hardware. Hey, it locked up, OS X is the suxx0rz. And Apple's brand is down the tubes.

    It is Apple's right and responsibility as a business to protect its brand by making sure its products are high quality and by making sure that others, for any reason, don't tarnish that brand.

    Psystar wants to make a Mac clone? Fine! Download Darwin. Download Afterstep. Download every graphics toolkit out there. Start modifying. Apple worked hard and invested tremendous amounts to make their software.

    You want a computer that works? Either get a Mac or build a *BSD or Linux box yourself.

    • Re: (Score:3, Insightful)

      Ok, now imagine what would happen if every computer company out there decided to provide Mac OS X with their computers instead of Windoze Vista or whatever they're installing on garbage prebuilt computers nowadays. Suddenly OS X won't be quite as great anymore because it will have all kinds of subtle failures and stuff. First, the hardware can induce failures that are no fault of the software.

      True to a point, but Linux pulls it off just fine. I'd imagine a lot of that is due to its open source driver model, which results in better quality drivers that people actually care to maintain, and also keeps truly "crap" hardware from ever being plugged in at all. In any case, it's fairly clear that a good and stable OS can be supported across a huge, diverse, and often buggy set of hardware.

  • by Danathar (267989) on Tuesday August 26, 2008 @07:53PM (#24758865) Journal

    Methinks this was their plan to begin with (counter sue). I can't imagine they just "happened" to come up with this defense and lawfirm all of a sudden.

  • PsyStar S*** Is Crap (Score:3, Interesting)

    by Winn Schwartau (887346) <winn&thesecurityawarenesscompany,com> on Tuesday August 26, 2008 @09:05PM (#24759519) Homepage
    Let them go suing... if PsyStar made a decent product I might get on their side. But they IMHO falsely advertised and shipped me crap that never did work. AND I AM IN FAVOR OF A MAC CLONE!!! Simply, they bait and switched. "Here buy this." I wanted a true clone and load my own legal OS X. Ther customer service said, "Oh... they shouldn't be selling that... that's way too hard for anyone to do on their own..." PsyStar KNEW I was reviewing the unit I paid for... and now it's a battle between American Express and PsyStar: PsyStar sold me crap that they can't make work but they still have refused my return shipment. On this one, if someone is going to take on Apple, at least let it be a reputable company. PsyStar is a poor technical neophyte who should be wiped out of the business. Of course, all of this is my personal opinion based upon the crap PsyStar dished out. www.WinnSchwartau.Com for more of my thoughts on stuff.

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