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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 @07:35PM (#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 @07:37PM (#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.

  • by Foofoobar (318279) on Tuesday August 26, 2008 @07:43PM (#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.
  • Re:In a word... (Score:4, Insightful)

    by Mr2001 (90979) on Tuesday August 26, 2008 @07:43PM (#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.

  • The slow courts (Score:2, Insightful)

    by TechwoIf (1004763) on Tuesday August 26, 2008 @07:44PM (#24758073) Homepage
    Too bad this case will take several years before anything is decided and appealed. Then an another year for any beneficent for consumers if ruled in favor of competition, that is if any competitors are still left in business.
  • Re:In a word... (Score:1, Insightful)

    by bigstrat2003 (1058574) * on Tuesday August 26, 2008 @07:46PM (#24758089)
    Psystar isn't riding Apple's development efforts at all. They aren't trying to sell Apple's OS as they're own, they're trying to stand up to Apple's bullying that immorally (and hopefully illegally, but we'll see) says you can't run their OS except on their hardware. If all they can accomplish is forcing Apple to rework their distribution methods, I'll still take what I can get. Better than Apple being allowed to behave badly unchallenged.
  • by DynaSoar (714234) on Tuesday August 26, 2008 @07:46PM (#24758095) Journal

    are doomed to repeat it.

    Apple has been successfully shutting down clone makers for 25 years. Some immediately, some after several months, but always successfully. Psystar will choke on the stack of precedents.

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

    by Microlith (54737) on Tuesday August 26, 2008 @07:48PM (#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.

  • by Enderandrew (866215) <enderandrew.gmail@com> on Tuesday August 26, 2008 @07:50PM (#24758127) Homepage Journal

    I agree. Apple's tactics are pretty horrid, yet they seem to get a pass from the fan-boys for some reason just because their products are shiny.

    It amazes me how often on Slashdot I read that Google is evil, and Apple is great. Apparently people aren't paying attention to their actual business practices in either case.

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

    by korean.ian (1264578) on Tuesday August 26, 2008 @07:50PM (#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:In a word... (Score:3, Insightful)

    by 2nd Post! (213333) <gundbear@@@pacbell...net> on Tuesday August 26, 2008 @07:50PM (#24758137) Homepage

    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 copies an end user can make (for example, they cannot redistribute copies without additional licenses from Apple). In this case Psystar does not have the license from Apple to distribute copies. On the barest of technicalities then Psystar has no license to distribute the single copy included on each OpenPC.

    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.

  • by l0ungeb0y (442022) on Tuesday August 26, 2008 @07:52PM (#24758157) Homepage Journal

    Seems the private business haters on /. got queued awful fast.

    Apple is not being monopolistic and they have every right to prevent a 3rd party from selling their product.. If I have a restaurant, I have the right to REFUSE TO SERVE you. If I make a product, I have the right to refuse to allow you to sell it at your store.

    The EULA is intended for individuals, and while they might strike parts of it down, the judge should side with Apple's right not to allow a 3rd party to manufacture a product containing Apples' products.

    However, any restriction on the end user from running OS X should be removed. Apple should just not warrantee the OS on non-Apple hardware. So if you don't have a Mac and you have a problem with your copy of OS X, Apple can just say "Tough Shit".

  • by Len (89493) on Tuesday August 26, 2008 @07:58PM (#24758221)
    I haven't forgotten history - I remember IBM & Amdahl, for instance.
  • Re:In a word... (Score:4, Insightful)

    by 2nd Post! (213333) <gundbear@@@pacbell...net> on Tuesday August 26, 2008 @07:59PM (#24758239) Homepage

    What immorality are we talking about here? What illegality here?

    Apple licenses their IP as they see fit, just like everyone else who owns IP. They license to those who happen to own Apple branded machines, just like the GPL licenses to those who distribute unmodified software, requiring modifications to be available in source form.

    Violation of either license restricts what you can do with the product. In Apple's case, you aren't allowed to copy the OS from disc to computer, and in the GPL's case you aren't allowed to distribute your code.

    Both extend logically from copyright.

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

    by Wesley Felter (138342) <wesley@felter.org> on Tuesday August 26, 2008 @08:00PM (#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:In a word... (Score:3, Insightful)

    by speedingant (1121329) on Tuesday August 26, 2008 @08:07PM (#24758329)

    /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.

  • by rwillard (1323303) on Tuesday August 26, 2008 @08:07PM (#24758331)

    If I have a restaurant, I have the right to REFUSE TO SERVE you. If I make a product, I have the right to refuse to allow you to sell it at your store.

    This isn't Apple refusing a customer in your restaurant, this is Apple saying that once you've bought the food from the restaurant you can't then go outside and sell it to someone you meet on the street. It's completely different, and the first sale doctrine gives Psystar the ability to do this.

  • Re:In a word... (Score:1, Insightful)

    by Anonymous Coward on Tuesday August 26, 2008 @08:11PM (#24758363)

    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.

    Hi korean.ian,

    I really feel I should inform you that Apple has other products like the most popular portable media player available, the iPod, and the highly acclaimed iPhone. These products seem to be very profitable for Apple.

    Now this may hurt their desktop and laptop hardware department, but it will also probably stimulate OSX software sales. I don't see how they are losing money by selling their OS upgrade discs at $130 each. They would only be losing potential hardware sales.

    I've wanted to use OSX for a while now, but I don't want to spend the extra money on an entry-level Apple computer that will not perform as I need it to. I have a very nice system for $700 that can out perform any apple computer except the MacBook Pro and the Mac Pro. If this lawsuit goes in favor of PsyStar, I may be able to legally get what I want.

  • by 2nd Post! (213333) <gundbear@@@pacbell...net> on Tuesday August 26, 2008 @08:15PM (#24758407) Homepage

    Funny, a KitchenAide mixer is an appliance and it can be end user upgraded into a blender, mixer, chopper, grinder, etc.

  • Re:In a word... (Score:3, Insightful)

    by gnasher719 (869701) on Tuesday August 26, 2008 @08:16PM (#24758413)

    Wow. I thought Psystar was going to get crushed, and then suddenly I see their angle. They might have a case here.

    Bloody nonsense. Psystar claims that Apple prevents them from selling computers. Reality is that Dell, HP, and all the other companies are quite successfully selling computers without MacOS X, and if Psystar wants to sell the computer, they can just do the same as Dell, HP and everyone else in that business and install OEM copies of Windows, or Linux, or whatever other operating system they can find where the copyright holder is willing to give them a license, or write their own OS like Apple did.

    Don't you think if there was any legal angle that could force Apple to license their OS, Dell wouldn't have gone after them at least a year ago?

  • by Microlith (54737) on Tuesday August 26, 2008 @08:16PM (#24758419)

    this is Apple saying that once you've bought the food from the restaurant you can't then go outside and sell it to someone you meet on the street

    Well not quite. Not at all really. That would be you taking your Mac and selling it, since the license to OS X came with it (and is bound to it, like MS does to damn near every copy of Windows.) Unless you want to suggest that Psystar could do this if they bought a Mac for every Psystar unit they sold, which would be hilarious.

    Those copies of OS X on the shelf? They're the equivalent of upgrades. The EULA requires that you have a license to OS X already, and said licenses are only sold with Macs. Notice that you could not, at all, buy Intel copies of OS X 10.4 off the shelf. All the copies available retail were upgrades for PowerPC machines.

  • Re:Wow. (Score:3, Insightful)

    by geekoid (135745) <dadinportland@@@yahoo...com> on Tuesday August 26, 2008 @08:22PM (#24758499) Homepage Journal

    Yes, I would be Awesome for people to tell me how to run my company even thought I am not a monopoly.

  • by erikina (1112587) <eri.kina@gmail.com> on Tuesday August 26, 2008 @08:25PM (#24758521) Homepage
    I think the apple-is-evil camp is pretty represented here on slashdot. I bought myself a large ipod, thinking it would double as a nice portable harddrive. Seriously, the hardware is great -- but the software and its restrictions are infuriating. I want to use it how I choose. I want to use it to give my friend music. I don't want to be forced to use itunes.

    And the whole control-freak attitude is in every apple product. I'll never buy another thing from apple, and feel incredibly stupid and regretful for recommending someone get a Mac instead of Vista.

    These days, I use OpenSUSE (and dabble in freebsd). And recommend XP as operating system of choice. As for devices, I strongly recommend people stay away from apple. Their attitude sucks, and I don't think they realize how much it will continue to hurt them. Only a certain percent of the population are masochists

    As for google is evil, I don't think they're evil (in fact, I think they're an awesome company). But just the other day, I realized how scary the amount of data is. I gave my best friend some of my account details (root access to my machine, msn etc.) but I wouldn't even consider giving my google account - just cause there's wayyy too much shit in it. Look at my inbox: [i]You are currently using 868 MB (12%) of your 7071 MB.[/i] It might not sound like much but that's a FUCK LOAD of personal information. I'm considering deleting it all - but it's so damn handing having it all archived for me.
  • Re:In a word... (Score:3, Insightful)

    by mr_matticus (928346) on Tuesday August 26, 2008 @08:26PM (#24758535)

    They aren't trying to sell Apple's OS as they're own, they're trying to stand up to Apple's bullying that immorally

    This is what's so laughable about the whole thing: OS X costs $129 and Windows $299 not because Apple is less greedy than Microsoft, but because the customers for whom it is intended have already invested in the platform R&D.

    The only logical result is the discontinuation of the favorable pricing given to Apple customers. Take a look at any tying case that talks about the theory--promotional tying is not barred, nor is tying per se illegal. It shouldn't be. Favorable pricing for prior customers is one of the benefits one expects from being a repeat customer, and supporting this line of reasoning supports it being banned as anticompetitive. Those posters on Slashdot making points like yours are so painfully short-sighted that it's no wonder consumers are treated with disdain.

    You're cutting off your nose to spite your face.

    says you can't run their OS except on their hardware.

    In exchange for which, you get a price far lower than what it actually costs. OS X retail sales don't even account for 1% of Apple's revenue--and account for a scarcely larger fraction of OS X support, R&D, and other ongoing costs. They give their customers a favorable price, because the customers support them through their hardware and continued business. It's not a product that supports itself in the retail channel. Being a company with a smaller potential number of copies, the per-license cost of OS X should be greater than Microsoft's.

    Apple chose not to sell the upgrades at this price, because its financial success allows it to conduct those transactions at a loss. Opening that favorable pricing to everyone destroys both the incentive and the value. Psystar is not contributing to the actual costs, but rather taking advantage of a promotional price for existing customers and using it for their financial gain, knowing full well that it represents a loss to Apple. Media attention is the only motivation for the legal action.

    Simply put, they're under no obligation to sell to others at all, and especially not to do so at a loss, even if they choose to offer such prices to their own customers.

  • Re:In a word... (Score:3, Insightful)

    by drsmithy (35869) <drsmithy@@@gmail...com> on Tuesday August 26, 2008 @08:27PM (#24758547)

    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:5, Insightful)

    by serviscope_minor (664417) on Tuesday August 26, 2008 @08:37PM (#24758659) Journal

    Apple licenses their IP as they see fit,

    No, they don't. They try to use a subversion of copyright law to force licensing on people. If they want licensing, they should do it properly with signed contracts, and etc. If they want to avoid the hassle and use the pre-packaged version provded by the government known as "copyright", then that's fine too. What they shouldn't do is try to turn one in to the other on the cheap.

    just like the GPL licenses to those who distribute

    You see that word "distribute"? That's what copyright is about. That's all the GPL addresses. Other than distribution (what copyright is about), the GPL makes no extra demands. None. And neither should it. You can also read about this on the FSF webpage, which includes a section about why it is not an EULA and why users should not be required to agree.

    Violation of either license restricts what you can do with the product. In Apple's case, you aren't allowed to copy the OS from disc to computer, and in the GPL's case you aren't allowed to distribute your code. Both extend logically from copyright.

    I disagree with your assertion that EULAs logically extend from copyright.

    It is a big stretch to argue that copying from the OS disc to the computer does not fall under fair use, since it's required to use the product. You may as well argue that the image of a book projected on your retina is copying.

    Consider another example. Remember those old computers, where programs could run directly from punched film and werre not loaded in to a program store? They apparently could not be subject to EULA's because they are not copied in order to run them. That seems like a perverse and illogical split to me.

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

    by Silicon Jedi (878120) on Tuesday August 26, 2008 @08:38PM (#24758687)
    Blizzard versus the Glider people is case law for loading into memory is copying.
  • Re:If they win (Score:5, Insightful)

    by gnasher719 (869701) on Tuesday August 26, 2008 @08:39PM (#24758693)

    Apple may not be allowed that option. Remember they are challenging Apple on Monopoly grounds. If they win Apple can be mandated to do or not do certain things that wouldn't apply to normal companies.

    Except that the product that is supposed to be a "monopoly" is an operating system, and Psystar has at least two other choices of operating systems: The one from the market leader, Microsoft, with 90 percent or more market share, and the other one Linux, which they can even distribute without license fees.

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

    by binarylarry (1338699) on Tuesday August 26, 2008 @08:40PM (#24758713)

    No, a Mac is a PC now.

    PC is a term for a computer that descends from the IBM PC family and is destined for a single person to use in a home or office, which is basically an Intel/x86-based computer. It has nothing to do with the OS as Windows wasn't the only OS that ran on an IBM PC.

    Macs are just PC's running some fancy bling software.

  • hmmm (Score:5, Insightful)

    by thatskinnyguy (1129515) on Tuesday August 26, 2008 @08:43PM (#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:In a word... (Score:3, Insightful)

    by Kamokazi (1080091) on Tuesday August 26, 2008 @08:45PM (#24758775)

    The funny thing about that is, Apple designs almost all components of all of its software. They design very little of their hardware (except the outside/case). They leave most of that to other companies. I really don't think that calling them a hardware company is really valid. They sell hardware, software, and consumer electronics now. Computer hardware is not even a majority of their business anymore. Software+iPhone/iPod/iTunes outweighs their hardware sales.

    And yes, I actually would like to put some firmware frome some of my TVs on others. That's also a bad comparison. It would be like Sony not allowing their firmware to be installed on other TVs, but almost every other TV manufacturer ships the same 3rd party firmware on their TVs, and it can also be installed on TVs you build yourself and Sony TVs.

  • Re:Wow. (Score:5, Insightful)

    by leamanc (961376) on Tuesday August 26, 2008 @08:49PM (#24758817) Homepage Journal

    Part of what makes OS X a great OS is that Apple controls the hardware side. "Everything just works" is a broad overstatement, but it mostly applies to Apple hardware and OS X. Being able to buy a boxed copy of OS X for any generic x86 PC would lead to a lot of Linux-type scenarios: *most everything* just works, but a patch here, or a trip to apt-get there, and a little bit of geeky knowledge is needed to get things working.

    Most of us here at Slashdot, myself included, would be fine with that. But OS X would not be the roaring success it is if people said things like "you may need to download fwcutter to get your WiFi card working" or "you need that SSE2 emulation BIOS patch to get it to boot." It is a success because Apple--for better or worse--has tightly intertwined the hardware and software experience so that the geeky *nix parts are only there if you want to play with it, not because you have to.

    The only way Apple could reasonably sell OS X for generic x86 or x86_64 hardware is to have a huge list of requirements similar to the "Vista Capable" debacle. And it would cost a lot more than the $129 it costs now. Prices would be similar to what you pay for the latest boxed version of Windows, because currently OS X is subsidized by the premium you paid on Apple's hardware to run it in the first place.

    I love Macs, I love OS X, and I love Linux. I think all this effort to get OS X running on generic hardware would be better spent on getting Ubuntu (or some other distro) up to the same level of reliability and usability of OS X on Apple hardware.

  • Re:In a word... (Score:3, Insightful)

    by mlts (1038732) * on Tuesday August 26, 2008 @08:50PM (#24758841)

    The reason Apple does not like Mac clones is not because they make profit selling OS X as much, but they make profit selling Macs.

    Apple has been burned with Mac clones before, in the days of Power Computing and such, where one of the things they did when turning around the company in the mid to late 1990s was eventually buy them up.

    I don't think Apple will ever allow legit licensed Mac clones ever again, regardless of percentage of royalties they get.

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

    by suck_burners_rice (1258684) on Tuesday August 26, 2008 @08:52PM (#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.

  • by Danathar (267989) on Tuesday August 26, 2008 @08:53PM (#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.

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

    by mrsteveman1 (1010381) on Tuesday August 26, 2008 @08:53PM (#24758881)

    Hmmmm.

    Intel x86 processor? Check.
    Intel chipsets? Check.
    DDR2 ram in SODIMM and DIMM format? Check.
    SATA hard drives using standard interfaces? Check.

    Please explain to me where the fucking wiggle room is for these things to be considered anything other than Apple branded, x86 machines, using commodity parts, that happen to be running an OS other than Windows.

  • by sjf (3790) on Tuesday August 26, 2008 @08:53PM (#24758887)

    How much do you want to bet Paystar has the same "donation"?
    Erm, a million, billion dollars ?

    You are smoking crack. Apple is not the same threat to MS that Linux is. MS profits from Apple!
      MS's margins on (legitimate) sales to Mac users have higher average margins than average sales to typical PC users:
    Firstly, there's no such thing as an OEM version of XP or Vista for Mac. Most OS sales in the PC world are low margin OEM bundles with HW.
    A Mac user must purchase a full retail price version of Windows to install on their Mac.
    Most unit sales of Office for the Mac are, again, individual sales. Most unit sales of Office for Windows are Corporate.

    Then we can go into the famous $150m "donation" that MS made to Apple, and the patent cross licensing agreement between the two companies...

  • by gujo-odori (473191) on Tuesday August 26, 2008 @08:55PM (#24758901)

    They can put it on there, but that doesn't stop me from doing it anyway. EULAs often contain all sorts of things that are highly unlikely to stand up in court, but until someone decides to actually test it in court, the licensor gets away with it.

    People *do* sell things marked with "Not for individual retail sale" piecemeal all the time. Unless the seller bought it under a contract from the manufacturer that forbade such resale (note that this would put it under contract law, rather than license, and would give the restriction teeth), there's not much a manufacturer could do about it in most US jurisdictions.

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

    by jmorris42 (1458) * <jmorris.beau@org> on Tuesday August 26, 2008 @08:56PM (#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:hmmm (Score:4, Insightful)

    by gnasher719 (869701) on Tuesday August 26, 2008 @08:58PM (#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.

  • by Telvin_3d (855514) on Tuesday August 26, 2008 @09:00PM (#24758939)

    Sure you can blast a company for doing something and be OK with another company doing it. If you sign up with company A because they promise to keep your data private and then find them selling your data you are mad at them. If you sign up with company B under the understanding that they resell customer information as part of their business you are going to get a lot of funny looks if you rail against their violation of your privacy.

    Apple escapes a lot of the bashing because they are upfront about what they are doing. You buy an Apple you know (or at least should) what to expect, both good and bad. That is not to say that everything they do is sunshine and rainbows, but that is a known part of doing business with them and as such a cost already accepted.

    When a company sells you something on the condition that it only be installed on their hardware it is hard for mot people to work up much sympathy when you complain that they will only let you install it on their hardware. The fact that other businesses do it differently does not matter. You were free to buy from them instead.

    In this same situation Microsoft would catch a lot of flack because they explicitly sell their product to run on anything that meets the hardware requirements. People have entered into a different contract with them and thus have different expectations and different reactions to the same actions.

    Everyone was pissed off at Sony because they broke the social contract. People were sold a CD with the reasonable expectation that it would NOT install a virus on their computer. Fewer people complain about Apple's iTunes DRM because it is an upfront part of the purchase. You know what you are getting and can purchase appropriately to your own tastes.

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

    by s0litaire (1205168) * on Tuesday August 26, 2008 @09:06PM (#24758991)
    'cause they haven't stuck a $0.02 bit of plastic on the case that makes it an apple brand....???
  • by DECS (891519) on Tuesday August 26, 2008 @09:12PM (#24759043) Homepage Journal

    Don't confuse Apple with its lawyers. Apple gets sued regularly over frivolous bullshit like Paystar's, so the the company's legal team is a ravenous bunch of sharks.

    The Wired sensationalism about lawyers' overstated legalese asking not to get unsolicited idea submissions outside of the "sign away your rights" web form for feedback is to prevent a case where somebody sends in an idea Apple is already working on, sort of like sending the violated IP to a clean room team. Of course they don't want to get sued, and lawyers overreact to protect their assets.

    Microsoft isn't "evil" for bundling software, it violated its consent decree (its agreement with the judge in a legal case) in order to destroy competition. Apple has no consent decree to violate, and has not been charged by the US with anti-competitive behaviors. So you're grasping at straws.

    Jobs does not own the RIAA's music, so he can only do what they allow him to do. He replaced strong Windows Media DRM from Microsoft with FairPlay DRM that end users can strip off themselves using iTunes burn function. So again, you are being ridiculous.

    Apple does not have a moral obligation to hand its IP over to Microsoft just because it did once already in the mid 80s. The "little guy" you are rooting for here is a convicted monopolist. It's like you're complaining about Bernhard Goetz being criminal.

    Apple never "forced the installation of Safari," it presented it as a software update. Microsoft presents new versions of its own browser as a software update, on both the Mac (when it did) and Windows. Again, you are being wildly disingenuous.

    Linking to Leander Kahney's wildly problematic rant/ad for his book doesn't help your case, because Kahney has a loose grasp of reality and contradicts himself repeatedly.

    As John Gruber noted (and thank God, as it spared me from explaining exactly why Kahney is so full of himself):

    "Kahney's central premise, insofar as there is a premise, is that Apple has succeeded either despite or because it operates in ways that are contrary to conventional wisdom. [... Kahney says Apple is] "Irredeemably evilâ. Because they're secretive and develop closed platforms. Think about that."
    [...]
    "One can argue (as I would) that Apple's product secrecy is worth tens of millions of dollars in publicity every year. Or, one can argue that Apple spitefully pissed away even more valuable publicity by shutting down Think Secret. (You'd be wrong, but you can reasonably argue that.) But Kahney, in the course of seven paragraphs in a single article, argues both."
    [...]
    "So this is the sort of logic, research, and insight that passes for a Wired cover story today. Does anyone at Wired even read this shit before publishing it?"

    Perhaps you should base your world view on facts rather than emotional tirades from Apple's critics to somehow defend why it is that Apple owes you its technology in a subsidized PC in addition to the subsidized iPhone you can already get.

    How Leander Kahney Got Everything Wrong by Being an Irredeemable Jackass [daringfireball.net]

    Is Apple's MobileMe Secure? [roughlydrafted.com]

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

    by gathas (588371) on Tuesday August 26, 2008 @09:15PM (#24759075)
    This "Mac clones nearly killed Apple" is always brought up as some sort of gospel proof that open hardware is bad for Apple. While there is probably some truth to this, the main things that nearly killed Apple in the mid 90s were lackluster machines with clone-like industrial design sold at a premium and an aging operating system. Jobs came in and rectified these issues starting with the iMac and then OSX. That the clone Mac were competitive is really more an indicator of Apple's mid 90s lack on innovation.
  • Re:In a word... (Score:5, Insightful)

    by russotto (537200) on Tuesday August 26, 2008 @09:17PM (#24759091) Journal

    You're right about being able to install the OS, but 17 USC 117 won't save Psystar. Forget, for the moment, the EULA.

    17 USC 117

    (b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.-- Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

    Note that last bit. Psystar is selling systems with OS X pre-installed. Because the pre-installed copy is NOT an exact copy, it is an adaptation, and that section is quite clear that transferring adaptations authorized by 17 USC 117(a) requires consent of the copyright holder.

    So it's copyright violation, plain and simple, no need for any licensing theories.

  • Re:Wow. (Score:3, Insightful)

    by vux984 (928602) on Tuesday August 26, 2008 @09:21PM (#24759111)

    The problem is that Paystar is modifying and reselling software it has neither a license nor any copyright to modify and resell. It also lacks any right to even to distribute Apple's software against the terms of its license.

    You don't normally need one. If I buy a Harry Potter book, and then resell it, I don't need a license to do this.

    If I buy a Harry Potter book, write my name on it, and then resell it (modified by me), I don't need a license to do that either.

    It's no different than selling software that is licensed as NFR, or selling Windows OEM without hardware, or any number of other uncontested legal mechanisms.

    NFR has been successfully challenged in court (not a supreme court precedent or anything, but still...)

    Selling 'OEM without qualifying hardware' is another interesting case, because the legal conundrum falls not on the seller but on the buyer, because it states that the license isn't "valid" unless it was sold with qualifying hardware. Since the seller isn't bound by the license, if he acquires OEM software and resells it there is squat the vendor can do to him. (This has been tested by the courts as well.) Its the end user that has an 'invalid' license (assuming the terms even hold, as they themselves have never been tested.)

    But there really isn't much point in going after them individually, now is there?

    And Microsoft, for its part hasn't historically cared to go after the end user if they bought OEM windows without hardware. (They have from time to time cracked down on the reseller by taking away their 'preferred Microsoft partner status' or taking away a discount they receive on buying microsoft software... but really that's about all they can do. And as of late they have been very tolerant of OEM software sold bare.)

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

    by ChangeOnInstall (589099) on Tuesday August 26, 2008 @09:22PM (#24759127)

    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.

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

    by joocemann (1273720) on Tuesday August 26, 2008 @09:26PM (#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.

  • by DECS (891519) on Tuesday August 26, 2008 @09:30PM (#24759201) Homepage Journal

    First off, it wasn't an explicit analogy, was it?

    Paystar is claiming it has rights to modify and distribute Apple's software. It clams Apple owes it a free ride to add value to its PC hardware using Apple's work. Paystar's ridiculous claim infers that it has a right to profit from Apple's work, but has no responsibility to follow Apple's license or respect Apple's copyright.

    Copyright gives Apple, not Paystar, the right to decide how to use, sell or distribute its own work.

    SCO demanded that it owned the copyright for work done by others, simply because it wanted to charge money for work it had not done. It sued IBM for "interfering with a legitimate business practice" of shaking down Linux users.

    Both SCO and Paystar are demanding to profit from work done by others that they have no right to demand.

    An analogy would be if I said Paystar is like a car that wants to park on your lawn, and sues to for being upset about it.

    Road to Mac OS X 10.6 Snow Leopard: 64-Bits [roughlydrafted.com]

     

  • by ancientt (569920) <ancientt@yahoo.com> on Tuesday August 26, 2008 @09:38PM (#24759271) Homepage Journal

    Buy a Ford engine. Put in in your Bluebird. No lawsuit from Nissan. No lawsuit from Ford. (The mechanic will likely sue for mental anguish.)

    Sell your Nissan/Ford unholy monster for profit. Still no lawsuit from Nissan, no lawsuit from Ford. (The mechanic's psychiatrist may sue you for reckless endangerment.)

    Sell dozens, hundreds and eventually thousands of Fluebirds. Not only will Nissan and Ford stubbornly persist in their selfish refusal to sue you, they might even offer to make you a retailer or give you wholesale purchase prices. (The mechanics' labor union may come round to visit with torches and pitchforks.)

    If you try to sell Bluebirds with Ford engines, representing yourself as a retailer for Nissan, then you will taste the awful wrath of a swarm of lawyers. Only then do you have an accurate analogy of the issue at hand. Apple can claim that Psystar is selling a product as an Apple product, thus infringing on their right to protect their goo*cough*
    that is to say slandering their guugh*choke*
    their good *spasm* *sputter* *wheeze* name.

    Of course, Psystar can retort that they are in fact selling Psystar computers designed to be capable of running OSX and are even installing OSX, legally purchased, on their computers for a reasonable fee. Apple may then point out that "you can't buy our software to do that" in which case Psystar can retort that "already did" and they can then commence with the slap fest. A cool headed judge could gently dissuade the two from arguing with a fire hose and explain that that forbidding people to use a product they legally purchase in such a way as to prevent competition might be considered "anticompetitive practices" and point out an interesting statute or two to the dripping Apple lawyer swarm. I'm sure the Apple lawyer swarm will accept this with the same good grace you'd expect from a bull rhino with a terrible case of hemorrhoids who was just dumped by his rhino girlfriend for a larger meaner bull rhino who has decided to make it a threesome. (This is known as the no bloody way triple analogy.)

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

    by HappySmileMan (1088123) on Tuesday August 26, 2008 @09:42PM (#24759293)

    This "Mac clones nearly killed Apple" is always brought up as some sort of gospel proof that open hardware is bad for Apple.

    Every time I see someone use the "Mac clones will kill Apple" argument (usually an Apple fanboy) I immediately think how pathetic it is that a company which claims to be the best is so afraid of competition, and that their followers never realise this.

  • by EvanED (569694) <evaned.gmail@com> on Tuesday August 26, 2008 @09:48PM (#24759365)

    Don't confuse Apple with its lawyers. Apple gets sued regularly over frivolous bullshit like Paystar's, so the the company's legal team is a ravenous bunch of sharks.

    Whoa, what?

    1) Apple hired and pays its lawyers. There have been way too many aggressive suits from Apple for it to be some rogue employee or rogue department. Apple is very systematic in the way it sues people who publish rumors and such. It's basically corporate policy.

    2) If by "Paystar" you mean "Psystar" (Googling Apple Paystar gives a Psystar article the 1st, 3rd, and 5th hit, irrelevant articles for 2nd and 4th), the "frivolous bullshit" that it is filing against Apple is a countersuit brought about in response to one of Apple BS aggressive lawsuits.

    This is biased by reading /., but the only entity that I know of that I think is worse than Apple in terms of filing BS lawsuits is the RIAA (and even that is a close contest as I am much less against strong IP laws than most of /. seems to be).

  • Re:In a word... (Score:3, Insightful)

    by Darkness404 (1287218) on Tuesday August 26, 2008 @10:02PM (#24759481)

    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 some bugs and add in a couple of 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.

  • Re:In a word... (Score:2, Insightful)

    by jmorris42 (1458) * <jmorris.beau@org> on Tuesday August 26, 2008 @10:07PM (#24759537)

    > ..it is an adaptation, and that section is quite clear that transferring adaptations
    > authorized by 17 USC 117(a) requires consent of the copyright holder.

    Nice try fanboi, you actually put a little effort into it unlike your fellows, but still no cigar. An adaptation isn't preinstalling software on a machine. An adaptation is translating a work into another language, reediting it (like that operation that tried selling 'cleaned up' DVDs) and such. But just taking the defaults in the installer doesn't count. Now if they added stuff they would be in very grey territory depending on what they added. Purely functional changes to get the software properly running on the platform would probably be ok but changing the look and feel of the default install would be much more likely to be ruled as interferring with Apple's right to have a product that says OS X actually behave like their trademarked product.

    But since the poiht of a general purpose computer is to run programs, could an OEM add whole seperate apps? It is standard practice in every other OEM situation,but most involve having a deal with the various software vendors. But the VAR market often doesn't have signed deals and they routinely do it, including with Apple hardware. You can buy a Mac pre configured as a video editing workstation with all of the software bindled in and preloaded and fully integrated, just power it on and go. Would a court want to get into the middle of that much long established industry practice? Interesting questions.

  • by mudetroit (855132) on Tuesday August 26, 2008 @10:11PM (#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:3, Insightful)

    by Austerity Empowers (669817) on Tuesday August 26, 2008 @10:16PM (#24759597)

    Exactly, Apple could have used an Intel processor but tossed all the legacy crap, and made their own architecture. They have the money, connections and know-how...they just did not want to. The only thing that makes them "Apple" is the TPM chip (which most shipping PCs have, or will have) with Apple's secret sauce in it. Something that for all it's dread, is not all that difficult to work around.

    It's really almost like Apple wanted this to happen, like they may not believe in the personal computing market anymore. They'll keep their hardware biz around for as long as it makes sense, and gradually PCize their fanboi's. Meanwhile their OS is clearly poised to kick MS's ass (and really hurt Linux adoption) and they can make more selling it (and using it to control chip, hardware and OEMs).

    I suspect someone just couldn't figure out how to tell the shareholders "Hey uh, about what I have been saying for 20 years? Yeah funny thing..."

  • Re:In a word... (Score:3, Insightful)

    by Have Blue (616) on Tuesday August 26, 2008 @10:24PM (#24759683) Homepage
    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 developing it, though. Scale is on their side and not Apple's.
  • R&D (Score:3, Insightful)

    by pizzach (1011925) <<pizzach> <at> <gmail.com>> on Tuesday August 26, 2008 @10:43PM (#24759839) Homepage

    That the clone Mac were competitive is really more an indicator of Apple's mid 90s lack on innovation.

    Not exactly. But you aren't totally out in left field either. The clones were supposedly free-riding on Apple's R&D for mother board designs etc. Apple later figured out they weren't recouping the costs from licensing and the clone makers sold cheaper/faster hardware than Apple because they didn't have to reinvent the wheel. (Remember, this was when Apple was the holy grail of "Not Invented Here")

    Read up some more on "Mac clones nearly killed Apple" at wikipedia.

  • Re:In a word... (Score:3, Insightful)

    by drsmithy (35869) <drsmithy@@@gmail...com> on Tuesday August 26, 2008 @10:46PM (#24759855)

    No, but if I use my corporate Windows XP install disk to install Windows on my company's 200 computers when I only have 5 licenses, I bet the BSA would be happy to get me into some trouble. I can't say, "Well I bought that copy of Windows, so the licensing terms shouldn't apply to me."

    Which bears no resemblance whatsoever to what Psystar is doing.

    Oh, I wasn't aware that the concept of copyright for software changed depending on what kind of hardware it was installed on. I suppose if Cisco has a router that was x86-based, suddenly their firmware is fair game?

    A Cisco router is a specialty piece of hardware. Its software is tied to it by virtue of that fact (and, further, is not available to buy off the shelf from the average - or even non-average - computer shop). A Mac is a commodity PC with racing stripes. Its software is tied to it via an EULA.

    What does this have to do with the EULA? We're not talking about end-users operating OSX in violation of a EULA, we're talking about a company that is copying OSX, altering it, and reselling without a license to do so.

    Actually, we're talking about a company who is buying retail copies of OS X, installing it onto computers for customers, then selling those computers (along with that copy of OS X).

    The "modifications" are conceptually no different to a PC seller preinstalling windows with some hardware drivers.

  • by Anonymous Coward on Tuesday August 26, 2008 @11:00PM (#24759959)

    The irony is that one of the reasons Microsoft was so successful is that, in the climate that they emerged in, they were actually fairly open.

    I feel old discussing this, but when the PC revolution started, Apple and IBM were dominant players. At the time, the argument was always that Microsoft was the way to go because you could always buy an "IBM clone," slap DOS or Windows on it, and have a system as good as IBM or Apple. Apple was one of the restrictive companies, and Microsoft was a free, opening agent.

    Microsoft let you buy the hardware you wanted.

    You're right, that Apple's business practices are far worse than MS's, and that is at the core of why Microsoft is where it is today.

    You don't need to wonder if Apple ever would come to be regarded as evil as Microsoft: the fact is, Microsoft came to be regarded as evil as Apple.

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

    by nine-times (778537) <nine.times@gmail.com> on Tuesday August 26, 2008 @11:13PM (#24760081) Homepage

    Nice try fanboi, you actually put a little effort into it unlike your fellows, but still no cigar. An adaptation isn't preinstalling software on a machine. An adaptation is translating a work into another language, reediting it (like that operation that tried selling 'cleaned up' DVDs) and such.

    You mean like selling a copy with an altered kernel to allow it to run on non-Apple hardware?

    Yeah, see, even if we accept your interpretation of that legal language, the argument still doesn't work.

  • Re:If they win (Score:3, Insightful)

    by mrchaotica (681592) * on Tuesday August 26, 2008 @11:27PM (#24760213)

    Except that the product that is supposed to be a "monopoly" is an operating system...

    By that argument, a Britney Spears album is a good substitute for a Mozart symphony. They're both music, right?

    Apple doesn't have a monopoly on "operating systems," but that's irrelevant because the issue is that Apple has a monopoly on computers running OS X, which is relevant because OS X has no reasonable substitute (where a "reasonable substitute" is defined as an OS capable of running OS X software).

  • by GaryPatterson (852699) on Tuesday August 26, 2008 @11:40PM (#24760365)

    Really? You believe that a company be forced to support its product on hardware it was never intended to run on?

    It might be some nerd's wet dream, but it's legal nonsense. Remember, you're calling for a legal judgement here, and I reckon that the law sees an "Apple branded computer" as different from a PC. That's the first hurdle to overcome, and then comes the biggie - forcing a company to modify its product to install on competing hardware.

    Any company is perfectly within its rights to write a product that only functions on some machines and not others. Just like any customer has the right to *not* buy or use that product.

    I will accept that I may be wrong on this, provided you can show a precedent. I would be frankly amazed to see it.

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

    by Microlith (54737) on Tuesday August 26, 2008 @11:42PM (#24760387)

    This is a blatant lie. A BLATANT LIE.

    Apple is making it impossible for anyone else to sell a computer that is compatible with OS X.

    THERE IS NOTHING STOPPING ANYONE FROM MAKING A MAC OS X COMPATIBLE COMPUTER. NOT EVEN APPLE COULD SUE YOU IF IT WERE COMPATIBLE, EVEN IF YOU INCLUDED EFI.

    if Microsoft is going to be found guilty by bundling Media Player with Windows

    Because the last time Microsoft was caught bundling they were threatening their OEM licensees with termination of their contracts if they allowed a competitor to be so much as VISIBLE on the desktop. Monopolies are not illegal. Abusing them to destroy competition is.

    Apple not licensing to Psystar in no way inhibits their ability to sell PCs, not even ones that would otherwise be Mac compatible (which is OSX86 + a fairly common set of existing hardware.)

    I think Apple does far worse things when it comes to bundling, such as forcing me to purchase Apple hardware to run Apple software.

    How dare they subsidize their software development using revenues from their hardware divisions. HOW DARE THEY.

    Man, I thought Slashdot was anti-Microsoft, but goddamn I have never seen such vicious attacks. If Slashdot has ever hated a company for being successful, it's Apple.

  • Re:In a word... (Score:3, Insightful)

    by m.ducharme (1082683) on Wednesday August 27, 2008 @12:12AM (#24760653)

    Apple is making it impossible for anyone else to sell a computer that is compatible with OS X. The Microsoft anti-trust rulings these days all seem to stem from interoperability. There are existing rulings that suggest if you refuse to play well with others, you can be found guilty of antitrust violations.

    Except, that in Mircosoft's case, they had a monopoly, and were using the monopoly + interoperability problems to increase their share in other markets. This is what they were convicted of, and it's a subtle point. MS wasn't convicted of being a monopolist, it was convicted of using its monopoly to gain share in other markets.

    Apple doesn't have a monopoly on either hardware or software, and in fact, Apple's inoperability issues are probably a brake on Apple's software market share. It's possible, even likely, that if they licensed OS X liberally for all hardware, they could sell more copies, at a higher price than they do now. It's even possible that Apple wouldn't lose much in the way of hardware sales. I can only speak anecdotally, but I for one would be inclined to stick with the whole bundle, as my experience with Macs since 10.4 has been very positive.

    Heck, if Microsoft is going to be found guilty by bundling Media Player with Windows, I think Apple does far worse things when it comes to bundling, such as forcing me to purchase Apple hardware to run Apple software.

    You do not have the inalienable right to run software on any machine you want. I wish we did, because then I could force all those game companies to make their software Mac or Linux compatible. Let me repeat this point, since this seems to be the core issue driving all the angsty bitching: you do not have the right to run any random software on whatever hardware you want.

    That is what this new counter-suit will be about. Based on previous Microsoft rulings, I think Psystar has an argument. What may kill their case is the psuedo-legality of their current business practices. Will a court give Psystar a fair shake if they pre-judge them to be criminals trying to illegally profit off someone else's product?

    The previous Microsoft rulings, while related, are not on point in some very important ways. Remember, Microsoft has the OS monopoly, not Apple, and Microsoft gained their OS monopoly by licensing the OS to any PC "clone" who cared to pay. Apple's bundling of the hardware and software isn't about making you pay more for the hardware, it's about controlling the experience, and hence the value of the brand. It's about being a luxury good, and not a commodity good. It's not about increasing market share (ie obtaining a monopoly) it's about making more money selling less units, and having happy customers who come back. In other words, it's about creating fanbois.

    There is nothing illegal about hardware/os bundling: until MS came along, all os's were bundled with hardware, usually hardwired right in as roms. The reason Apple draws so much ire is because they have a product that you really really want -- the OS X -- but you don't want to buy the hardware. Well, tough shit.

  • Re:In a word... (Score:3, Insightful)

    by Wesley Felter (138342) <wesley@felter.org> on Wednesday August 27, 2008 @12:17AM (#24760691) Homepage

    Volume. Microsoft sells 10 times as many OS licenses as Apple. (Windows costs more to develop than OS X, but the volume makes up for that, too.)

  • by Lost Engineer (459920) on Wednesday August 27, 2008 @12:23AM (#24760737)

    They can't be forced to support it, but they could reasonably be forced to allow, if only through inaction, for people to install it on non-Macintosh branded computers.

    It really is an issue of to what degree the EULA is enforceable.

  • Re:If they win (Score:3, Insightful)

    by GaryPatterson (852699) on Wednesday August 27, 2008 @12:30AM (#24760781)

    No, that's not a sensible way to define a monopoly.

    Under your definition, all companies hold a monopoly on their own products. The logical conclusion must be that your definition of "monopoly" is flawed, as it has no use whatsoever. It fails to distinguish between one company and any other.

    You go on to say that "OS X has no reasonable substitute" but surely since I can install Windows or Linux on a Mac, it does. I can substitute OS X quite easily.

    Yes, that's not what you meant. How about the idea that I can compile well-written OS X code and run it on Linux? Some apps transfer between OSs with a recompile, after all. I've done this several times (before the novelty wore off and I became bored).

    Maybe that's not what you meant either. How about this then - under your definition, all OSs have no reasonable substitutes because I can't take a binary and run it on any OS I choose to, even when the hardware is the same. I can install all three OSs onto a Mac, but I can't run (say) FarCry natively on any but Windows. Again, your use of the term makes no meaningful distinction between one OS and another, leading me to think your definition is incorrect.

    To sum up - I see that you want Apple to sell you a copy of OS X with no strings attached, however your justifications do not support your case.

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

    by nine-times (778537) <nine.times@gmail.com> on Wednesday August 27, 2008 @12:36AM (#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, Insightful)

    by mrsteveman1 (1010381) on Wednesday August 27, 2008 @12:37AM (#24760831)

    Yes it is, and Gateway has made EFI boxes in the past.

    Oh, and every Intel mainboard with a 945 chipset apparently runs their Framework, but the only thing enabled is the CSM for bios compatibility.

    And in any case the difference is almost irrelevant. If you provide OS X with some basic EFI structures and tables at boot time, it runs on x86 hardware. EFI is cool but it is still mostly filling the role of BIOS now, that is to say it is a bootloader for the real OS. Sure EFI does some fancy tricks but as for differentiating the hardware to the point of saying mac vs. PC, EFI doesn't cut it.

  • by Anonymous Coward on Wednesday August 27, 2008 @01:05AM (#24761037)

    Support? no. nobody will force them to provide tech support. But selling the product? You either sell a product or you don't.

    My favourite analogy here is the car one.

    Would you accept that ford has the ability to tell you that this "Highway" brand car is only licenced for use on the highways and if you want to drive a car in the city you should purchase this "City" brand car?

    Do you think that its acceptable for a dealer ship to sell you a car and then say you can only put gas in it from one of their business partners?

    Would you be happy if you bought a car and the dealership said you can only ever buy tires from them, and incidentally their tires are all more expensive than generic tires that would work just as well?

    All of the above examples are complete bullshit when applied to a car, so why when we talk about an OS is it magically acceptable?

  • Re:In a word... (Score:3, Insightful)

    by Sentry21 (8183) on Wednesday August 27, 2008 @02:02AM (#24761407) Journal

    1. Apple doesn't want customers who wipe their machines to have to fuss around with finding their original discs in order to prove that they possess machine that they're using. Since every Mac comes with a copy of OS X, any installation of OS X on a Mac is either a reinstall or an upgrade. Therefore, why be a dick to users for the sake of it?

    2. A side effect of this, which has never mattered until now, is that if you had a machine that would run OS X, but was not a Mac, then technically you could install OS X on it in a way that violates the EULA, because Apple sees no way of forcing something that has always been true in 100% of cases.

  • by mrchaotica (681592) * on Wednesday August 27, 2008 @02:17AM (#24761481)

    Really? You believe that a company be forced to support its product on hardware it was never intended to run on?

    Please show exactly where in my post I wrote the word "support."

  • by OrangeTide (124937) on Wednesday August 27, 2008 @02:25AM (#24761515) Homepage Journal

    Apple's business model is that they sell hardware, not operating systems. Their OS is, for a most part, a way for Apple to differentiate their hardware product from other computers in the market.

    Microsoft sells software. They are happy to sell you as many copies of Windows as you want. Microsoft would be thrilled if everyone bought a copy of Windows to install on their Mac. It would increase their profits.

    The same can't be said about Apple if people bought OS X to install on their beige box. Theoretically they would have reduced profits due to not selling as much of their high margin hardware.

    The question is does Apple have the legal right to prevent companies from selling their software in a ways other than Apple wants. I think Apple does have a legal right to restrict access to their own software, that's what a license is about.

  • Re:In a word... (Score:2, Insightful)

    by DECS (891519) on Wednesday August 27, 2008 @02:39AM (#24761609) Homepage Journal

    Wikipedia is only as useful as its authoritative, cited sources. It is not intended to be original research, and where it is, it has no authority because anyone can scribble up authoritative-sounding crap that streams from their anus and make it part of Wikipedia.

    Your citation above is a meaningless 35 word paraphrase of the two words "personal" and "computer." It's complete bullshit.

    Shame on you for thinking it worthy to copy and paste in.

  • Re:In a word... (Score:3, Insightful)

    by mr_matticus (928346) on Wednesday August 27, 2008 @03:18AM (#24761803)

    it's that Apple isn't allowing such use at all.

    They're under no obligation to do so, particularly because authorizing such use comes with it consumer protection mandates requiring warranty and support. They are not permitted to sell a retail product "as is", and the compliance costs are not something Apple is interested in taking on.

    If what you want to buy is not available in the form you want, too bad. They don't have to sell it to you, and you don't have any right to take it.

    Even if Psystar wins, the decision would do nothing to diminish the legality of giving discounts to repeat customers.

    Au contraire, that is the entire basis of their counterclaim. They are claiming a nonexistent per se rule that the sale of their OS cannot be restricted. Period.

    There is no per se prohibition on tying. There is no prohibition at all on promotional tying. Offering a product based on the existing ownership of a qualifying product does not mean that the product has to be offered to an audience outside that group at any price, let alone the favorable price.

  • Re:In a word... (Score:3, Insightful)

    by Mr2001 (90979) on Wednesday August 27, 2008 @03:52AM (#24761943) Homepage Journal

    And yet you lack the right to authorize Pystar to violate the terms of the licensing agreement on retail boxes of Mac OS X

    What makes you think they agreed to those terms?

    You only need to accept a license agreement if you want the license. If you don't want it -- say, because the law already allows you to make a copy -- then you don't need to accept it.

    so Pystar has no legal authorization to [...] sell the software as a value add for their hardware.

    Heh. I guess you haven't heard of the first sale doctrine. They can resell whatever they want.

  • Re:In a word... (Score:1, Insightful)

    by Anonymous Coward on Wednesday August 27, 2008 @06:48AM (#24762733)
    "Activation"- oh, that's that thing that I haven't needed to do in years, because I'm canny enough to defeat cumbersome copy protection measures. Nothing as visible as OSX will stand for more than a few hours against the Scene groups- the people who want OSX on non-Apple hardware are those who aren't afraid to crack their software.
  • by Weedlekin (836313) on Wednesday August 27, 2008 @07:53AM (#24763143)

    "Its about time someone counter-sued Apple for this monopolistic behavior."

    Monopolistic behaviour isn't illegal unless one happens to be a monopoly.

    "When Microsoft does it, everyone jumps up their seat"

    Because Microsoft has been adjudged to be a monopoly by at least three different legal entities (the US, the EU, and S. Korea), whereas Apple with their 4% or so of the world PC market are obviously not a monopoly. Monopolies are bound by laws that don't apply to other companies.

  • by walterbyrd (182728) on Wednesday August 27, 2008 @08:00AM (#24763195)

    > Really? You believe that a company be forced to support its product on hardware it was never intended to run on?

    This has nothing to do with forcing Apple to support anything. Rather, it is just about allowing people to own what they buy.

  • by Mr2001 (90979) on Wednesday August 27, 2008 @08:08AM (#24763249) Homepage Journal

    They'd probably still bundle it in with their Macs. They don't have to over-price it for their own hardware, genius.

    Yes, of course they'd still bundle it in with their Macs. That's why I didn't adjust the prices of the Macs. I pulled those numbers straight from Apple's web site.

    Today, Psystar's machine costs $555, which includes the price of the OS ($130), and it's still over $200 cheaper than the basic 2 GHz Mac Mini. The point of my comment was that even if you add another $370 to Psystar's price, without increasing Apple's price, it's still a pretty good deal.

  • Re:In a word... (Score:3, Insightful)

    by bigstrat2003 (1058574) * on Wednesday August 27, 2008 @08:29AM (#24763431)
    The law is all about wording. Notice how many judges don't apply the spirit of the law, but rather the letter of the law. I think you're extremely incorrect in saying that a judge is going to be annoyed at someone for following exactly what Apple's terms state. If Apple wanted something specific, they should have specified it, not left it ambiguous.
  • by Weedlekin (836313) on Wednesday August 27, 2008 @08:37AM (#24763507)

    "Where is NewYorkCountryLawyer when you need him?"

    Probably throwing up in a bucket because of stench from all the BS here on Slashdot from people who claim that anti-trust laws apply to Apple because they're the only company who makes Apple products.

  • by ObiWanKenblowme (718510) on Wednesday August 27, 2008 @08:48AM (#24763641)

    What monopolistic practices? They're a monopoly because they only make Apple products? I get tired of hearing the same absurd nonsense from people whose knowledge of antitrust laws boils down to "houses are green and hotels are red."

    I'd also defy you to find any statement from Apple about them being a hardware company - they sell the complete system, which apparently is a difficult concept for a lot of ./ readers to understand.

  • by mcmonkey (96054) on Wednesday August 27, 2008 @10:30AM (#24765145) Homepage

    Apple's business model is...

    ...not Psystar's concern.

    When the RIAA member companies have a business model based on selling plastic discs with a restrictive license to play the music encoded on that disc, we say, your business model isn't my problem. I want to shift my music to other formats, so I can play it without the plastic disc. Or I don't want all the music on the disc, I just want a few songs and I want to pay a fraction of the full price.

    It's nice a company has a business model, but a business model is not a law any other entity need respect or follow. For any company other than Apple, what is the response when lawyers are brought in to enforce a business model? Scorn, ridicule, contempt.

    If you don't like the way the market is responsing to your business model, bring in the MBAs and change that model. Don't bring in the JDs and sue your customers.

  • Re:In a word... (Score:2, Insightful)

    by mc900ftjesus (671151) on Wednesday August 27, 2008 @10:45AM (#24765383)

    But how much did Apple force you to pay for the Intel processor and magic motherboard that is special enough to run this "cheap" upgrade?

  • by PitaBred (632671) <slashdotNO@SPAMpitabred.dyndns.org> on Wednesday August 27, 2008 @12:19PM (#24766907) Homepage

    You're an imbecile. In your first example, the BRAND of diesel doesn't matter. A car running on diesel is comparable to a PC based on a PowerPC chip (if we're sticking with analogies). There's no reason you can't put any OS on it, it's just some OS's will work TECHNICALLY, and others won't. Same with the fuel. The Apple OS technically works on Psystar's machines, otherwise they wouldn't sell it.

    Your second example is a great example of hitting a strawman out of the park. Well, kinda... your "example" really doesn't make any sense to a native English speaker. I'm assuming you meant something along the lines of a manufacturer sells expensive wheels, and you expect them to support it running on a cardboard box. That doesn't mean they WON'T work with whatever you want, just that you can't expect the manufacturer to support it. No one is expecting Apple to support OSX running on Psystar's machines. If you do, Apple is perfectly right in telling you to go screw yourself.

    This whole debacle is about EULA's, and the assumption that by simply writing one you gain rights over and above what is granted to you by law. Psystar is contesting that, as the EULA can't be entered into legally as a contract due to the way that the product is presented and sold, therefore things should default back to the traditional right of first sale and other principles that have existed for ages.

    Get a clue, junior. Don't make noise while the adults are talking ;)

  • by El Icaro (816679) <icaro@spySLACKWAREmac.com minus distro> on Wednesday August 27, 2008 @12:51PM (#24767405)
    Sorry, I didn't realize that. Nonetheless you have to admit their 'Open Computer' is considerably bigger than Apple's Mac Mini. Of course, at that point it's just an aesthetic choice.
  • by FLEB (312391) on Wednesday August 27, 2008 @12:57PM (#24767499) Homepage Journal

    It's the difference between "support" and "allow". Your car dealer has no business interfering with your decision to try and diesel-fuel your unleaded car, short of telling you you're a damn fool when you come back expecting free repairs. Likewise, Apple should have no business interfering with your decision to run MacOS on any hardware you want, short of telling you you're a damn fool when you come back expecting free support.

  • by macdaddy (38372) on Wednesday August 27, 2008 @04:50PM (#24770353) Homepage Journal
    I was an Apple Service Tech back in the late 90s during the Clones Wars(tm). Most of those things were pieces of shit. We had a stack of Umax clunkers that took up an entire set of shelves and overflowed into the junk room. They all died a horrible death. Their owners abandoned them and bought an official Apple replacement. Power Computing made some good stuff. DayStar wasn't too bad either. Moto, APS Tech and Radius were hit and miss.

    Most people don't understand how bad this problem was for Apple. When a clone had a problem the user didn't call the cloner maker. On no. They called Apple. They saw "Mac OS" pop up on the screen when they fired up their clone. In their eyes they had an Apple. It cost Apple a bundle in support costs. It cost them even more in bad PR. If Apple Support turned away a Umax owner telling them to call Umax then that user saw that as a bad experience with Apple. Clones were a lose/lose situation for Apple.

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