Psystar Will Countersue Apple 1084
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."
Wow. (Score:2, Interesting)
I wish I had balls that big. I also hope they win. It would be awesome to legally be able to run OS X on the hardware of MY choice, rather than Apple's.
I've always wondered... (Score:5, Interesting)
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)
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.
Who's Paying the Legal Bill at Psystar? (Score:5, Interesting)
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)
Will it be because they're right, or becuse they're rich?
Re:In a word... (Score:4, Interesting)
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.
An interesting potential precedent (Score:3, Interesting)
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.
Re:In a word... (Score:4, Interesting)
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.
Anticompetitive practice != Monopoly (Score:5, Interesting)
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.
Re:Those who forget history (Score:4, Interesting)
That was before they were really running on commodity hardware. When an Mac was a physically different piece of hardware from an abstract perspective (different processor, running a different instruction set) they could more easily make the case, since they've flipped to the 86 platform, I don't think their case will be as strong.
Re:Wow. (Score:2, Interesting)
Also keep in mind that if Paystar could legally dismiss Apple's license terms simply on the basis of demanding that it has some sort of moral right to make unfettered profits from another's work without respecting the owner's license, it also means the GLP can be dismissed by any corporation who doesn't want to follow it because they think they can make more profits ignoring it.
So Tivo, Linksys, Motorola, etc similarly could continue to ignore the GPL and use Linux code without opening it up.
Careful what you wish for in your moment of greed, you might get it.
Will Google's Android Play DOS to Apple's iPhone? [roughlydrafted.com]
Re:In a word... (Score:3, Interesting)
You forget something...Apple still makes money on just OS X. and if this goes through, Dell, HP, etc. will probably be buying up licenses to sell to consumers (after some driver R&D and tech support training). Apple can continue without its computer hardware sales, no problem. It may have to tweak the price of OS X a bit to compensate, but I think it will be just fine.
Retail, OEM, or upgrade? (Score:1, Interesting)
- Upgrade -
Given that one may officially only install the product on "an Apple-labeled computer", and every Mac comes preinstalled with OS X, a case could be made that the boxed version is really an upgrade. This is however hard to defend as the AppleTV is an Apple-labeled computer and runs a version of OS X, but it would be illegal to run Mac OS X on an AppleTV.
- OEM -
When you buy a boxed Mac OS X, you can only install it on Macs that meet the requirements. Support through Apple is minimal, you're expected to have bought AppleCare for your computer, which then gets you OS support as well. This could pass for some form of OEM deal.
- Retail -
Retail, ie. "buy the product, and do with it as you please" seems like the least plausible option. There is only one Mac OS X Leopard Client, and for most customers it costs $129. This is way less from what Microsoft charges for their full featured 64-bits Vista retail version. Has Apple ever been known for their bargains?
I think Psystar might be mistaking the boxed version for a retail version. In the unlikely case that the win the case however, I can see Apple creating a full retail version and an upgrade version, with the full retail version being > $1000, so that it won't make any sense for Psystar to sell the systems anymore.
Re:In a word... (Score:5, Interesting)
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.
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.
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?
Re:In a word... (Score:3, Interesting)
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 uneducated/irrational with this one...
An easy way to end this is for Apple to release OSX with a stand alone license cost so high that it makes it prohibitive for 3rd-party OEMs to include it. What, next we're going to see people complain because a company charges too much for a product they made? This whole suit is lulz.
Re:In a word... (Score:2, Interesting)
Re:I've always wondered... (Score:3, Interesting)
Apple throws lawsuits around left and right. They attack fans for blogging about their products. I remember reading in Wired about a twelve-year old girl who offered a product suggestion to improve her iPod. Apple sent a threatening legal letter in response, demanding that she not offer suggestions.
If Microsoft is evil for bundling software, then Apple is far more evil in the same regard.
Steve Jobs said from day 1 he hated DRM, yet Apple products have pushed DRM far more than any company I've seen on the planet.
They take bundling and DRM to another level with cross-product lock-in.
Forcing the installation of Safari in the background without asking is exceptionally evil. Had Microsoft done that, the Slashdot crowd would have had an aneurysm.
"...don't just suggest evil lurking were none does."
Did you just really suggest there is no evil in Cupertino?
http://www.wired.com/techbiz/it/magazine/16-04/bz_apple [wired.com]
Re:In a word... (Score:5, Interesting)
not exactly right... (Score:4, Interesting)
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...
Re:Wow. (Score:2, Interesting)
The problem isn't that Paystar doesn't have a license to use software it is purchasing.
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.
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.
Is Apple's MobileMe Secure? [roughlydrafted.com]
Apple's behavior is not monopolistic (Score:3, Interesting)
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 unless the company actually has a monopoly.
Apple licenses OS X for use on Apple hardware. That's the condition you accept in using it, and they're well within their rights to enforce that. You might not like that, but given how the law is written now, it's perfectly legal.
Re:Anticompetitive practice != Monopoly (Score:4, Interesting)
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.
I don't really have a strong opinion either way... (Score:2, Interesting)
Re:In a word... (Score:3, Interesting)
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, 8.6, and 10.1 for example. But all the retail you buy now are full installers that will work fine on a blank HD.
They HAVE stuffed upgrade-only os disks into new mac boxes that were manufactured just before a new OS was released, but they only did that for 10.3 when it was first released. Those were free, not sold.
Re:In a word... (Score:3, Interesting)
AFAIK it's still a copyright violation to install software contrary to the explicit licensing terms.
Really ? You think you'll get picked up for copyright infringement if you violate an EULA that says you're only allowed to use OS X if you're wearing blue shorts ?
They're completely unambiguous about the fact that the retail package is only to be installed on Apple computers, meaning it's a essentially firmware upgrade.
The actual term is "Apple labelled", which in no way explicitly states the software is an upgrade.
(Indeed, one might wonder if that's why MacOS generally comes with a couple of Apple stickers in the box.)
Except Cisco does sell software updates/upgrades. Not on retail shelves, but then they don't sell their routers/firewalls on retail shelves either. And other vendors aren't permitted to hack those software packages and sell them on their own firewalls. And what's more, we all accept that as valid.
Why? Because we accept that Cisco is a hardware vendor, and that their software is just part of an integrated solution. Except when a PC vendor does the same thing, people get all bent out of shape.
Probably because PCs (including Macs) are generic, commodity hardware.
To use another example, when imagine if Linksys was selling routers with Linux installed, and refused to release the modifications that they'd made to the Linux kernel. How would people feel about that? They would flip out. Because it would be blatant copyright infringement to distribute Linux contrary to the explicit licensing terms.
Except it's not the same thing, because the only thing that makes using OS X on non-Apple hardware copyright infringement, is an EULA stipulation.
Your example, OTOH, is full-on redistribution of copyrighted material.
I can come up with one example after another of comparable cases where people here would come down on the other side of the issue. People just have trouble telling the difference between "something that's immoral" and "something I don't like".
In no way whatsoever is what Psystar doing "immoral". With any luck, it won't even be found illegal.
PsyStar S*** Is Crap (Score:3, Interesting)
Conventional Wi...Stupidity (Score:3, Interesting)
I'm a Mac user, I've had my share of "Road Apples" over the years, and I say the conventional wisdom that Apple makes "great" hardware is pure and unadulterated horse exhaust.
Re:not exactly right... (Score:1, Interesting)
You're completely right: Apple would certainly be free to stop selling OS X, including the copies installed on Macs, if it wanted. But if it wanted to be allowed to continue putting OS X on Macs, then it could very well be forced to sell it for non-Macs too.
Re:In a word... (Score:2, Interesting)
Re:In a word... (Score:3, Interesting)
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.
Wrong.
Copyright is not the right to control what anyone does with your product. Copyright is the right to dictate who is allowed to (a) create derivative works, (b) create copies and (c) distribute copies they created.
Nothing more.
If the copyright holder makes a copy and then gives or sells it to someone, the recipient can do what they like with it, including selling it to others under any terms they wish.
A lot of people mistakenly believe that copyright also prevents unauthorized installing of software (because it involves copying to the hard drive) or unauthorized running of software (because it involves copying to RAM), but US copyright law explicitly allows any copies that are made "as an essential step in the utilization of the computer program" (Title 17 section 117(1)(a) [copyright.gov]). Since in order to use OS X you must install it on a hard drive and it must be copied into RAM when run, both of those copies are legal, without the permission of the copyright holder.
Of course Apple software, unlike GPL software, comes with an EULA which attempts to impose restrictions beyond what copyright law allows. In order to do that, the EULA has to be interpreted as a contract, and EULAs of that sort have been pretty consistently struck down by the courts.
Re:In a word... (Score:3, Interesting)
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.)
Apple can say those copies are "meant" for whatever they want, but according to 17 USC 117, you don't need to listen to them. You can buy the software, reject the license, and install it using your statutory rights instead of anything granted to you by Apple.
Apple is a unique case (Score:1, Interesting)
A PC hardware maker allows you to install any OS you want, XP, Vista, Linux (Dell offers all three). This increases their hardware sales since it broadens their market.
A software company allows you to run their software on any platform (Windows and Linux can run on just about any platform). This increases their software sales (or popularity) much like the hardware example above.
Apple on the other hand creates both the hardware and software so the two descriptions above don't work well for their business model. Some people like the Mac OS but dislike the hardware. If Apple allowed you to run their OS on any hardware it would impact their hardware sales. There are also those who like the hardware but would prefer another OS. That's not a problem for Apple because the license fees for the OS are already bundled with their hardware. They won't however sell you an Apple computer without an OS. Either way, if you want the Apple hardware or software you pay for both and that's their business model.
Lastly, for Mac OS to run on white box machines, Apple would have to release a lot of the OS APIs and work with tons of hardware and software companies to achieve reliable compatibility. I'm sure this is extra work that they don't want.
Re:hmmm (Score:1, Interesting)
Yes. Apple are a hardware company. They don't really care what you run on your Mac, since they've made their money from selling it to you. They only make an OS so the computers they sell you will run, and they make it a good one to make their computers more appealing to own.
If you install OSX on a PC, they're not exactly doing brilliantly out of the sale of the copy of it (it's noted elsewhere that the cost of the OS is heavily subsidised by the profit from the hardware), and they haven't sold you a computer.
Re:Sure you can... (Score:4, Interesting)
...all it requires is that you throw out 12 USC 1201.
No, I don't think the DMCA would apply.
Remember, Lexmark [arstechnica.com] was smacked down for trying to claim that their bundling arrangement between printers and toner constituted a DMCA-protected "access control" for the software inside the printer. The court found that, since the software in the printer was available in the clear to anyone who owned the printer, the "access" was granted by purchasing the printer, not by installing an authorized toner cartridge.
Likewise, once you buy a disc containing OS X, you have access to all the code stored on that disc. The access control is your purchase of the disc, not the interaction between the disc an an Apple-branded computer.
Re:In a word... (Score:3, Interesting)
...Apple is making it impossible for anyone else to sell a computer that is compatible with OS X....
Apple should make OSX available to anyone for the same retail price that MS charges for VISTA ultimate. All new and registered current Mac owners get a discount certificate that entitles them to buy a copy for $129. I suspect that that would end this whole thing. A LARGE clear statement should also be included on each box, making it clear that Apple will not support OSX on any hardware they did not make.
Re:In a word... (Score:0, Interesting)
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.
You must own an Acer desktop.
Of course, the rest of us here know that not all computers are created equal. There is a shitload more to the hardware of a computer than a chipset, a memory interface, and a disk interface.
It's robustness of design. It's fan quality. Its efficiency of the layout. Latency. Noise shielding. Color correctness. Drive stability and performance. Clock speeds. Keyboard quality. Peripherals and their qualities. Size and Weight. Robustness after a drop. Battery performance and capacity. And that just scratches the surface of what goes into a computer.
You're right. For many, the cheapest laptop will do. Write an email a few times a month, no expectations of reliability, mediocre performance compared with other models, no peripherals. For professional users that need a reliable, robust machine for the road or to deliver something on time, the $800 crip-crap just won't do.
I don't buy Mac's at work (Windows XP is corporate policy), but then again each laptop setup I buy costs at least $1600 per person - and that's buying through my corporate volume buying plan.
Maybe you work for my old firm, where we bought the weakest laptops that were poorly suited for production work OR use on the road. A waste of money, and a huge expense in downtime.
Re:In a word... (Score:2, Interesting)
It's been a long time, but the last time I tried to install a Windows (win95) upgrade it happily installed and didn't even want me to enter a product activation code.
Of course this was due to having a competitors OS on the computer (OS/2) and the end of the install was a message about how it detected OS/2 and I it was deactivated and I could never use it again (or something to that affect). Didn't matter that I might of had some very important data on the drive, Windows had made sure I could never use it.
Of course 2 minutes in fdisk fixed things but it was moves like this that showed how MS viewed it's users.
Re:In a word... (Score:1, Interesting)
"Purely functional changes to get the software properly running on the platform would probably be ok"
You can call him a fanboi if you like, but your rebuttal is debatable. How do you classify the importance of those changes? Just because you can't see them, doesn't mean they aren't important. Apple's OS is not designed to run on hardware other than their own by design; the simple proof of this lies in the fact that you cannot go out and purchase a copy of OS X and install it on any x86 computer of your choosing straight out-of-the-box (EULAs aside). The details of how Pystar gets it to work are inconsequential (you'll see why below) - they're modifying the fundamentals of the system to get it working, and in doing so they put themselves in a position where Apple can argue that a) these modifications are against their original design and COULD cause the product to be damaged before it is resold, and more importantly b) the average consumer would not understand that modifications have been made, regardless of what they are (hence their inconsequential-ness), and would blame Apple for what they would perceive as a faulty product from the start. In fact, a quick jaunt over to Pystar's website makes no CLEAR indication what, if anything, they're doing to get the OS working on their hardware. This is misrepresentation, because something is being changed and that change is not clear to simple minded people.
For example, if I buy a new car from a factory dealer, of course I have the right to resell it. I also have the right to change it and resell it (just like a Shelby or Saleen Mustang, to continue with the car example). But when a consumer goes out and buys a Shelby or Saleen, they know they're getting a modified product, and usually have an understanding of the implications of this. If Apple loses this suit, the situation could (and probably will) quite easily dissolve to a point where AVERAGE consumers will not know that there have been changes made (especially because they aren't GUI/ visible!), and if any issues come up, they will likely blame Apple for what they see as a product that was defective from the start, when that is not necessary the case. To illustrate this, ask yourself: if you bought a Linksys router from Best Buy and you return it because it repeatedly doesn't meet your expectations, do you blame Best Buy exclusively for your woes? Odds are you won't think very highly of Linksys, to say the least. Their name is all over the product you bought, and as far as you know, that product was not tampered with.
What I wonder is... if Apple loses, will they expand their already intensive PR campaign to include explanations of the differences between their products and resold ones to help curb that misunderstanding? Looking at existing models for comparison, it could be similar to the Windows Genuine Advantage program? Has that been successful? Lots of interesting questions, indeed!
But I think a lot more is at stake when you consider the ineptitude of the average buyer and how they perceive brands.
Re:Wow. (Score:2, Interesting)
...It would be awesome to legally be able to run OS X on the hardware of MY choice, rather than Apple's...
I think that Apple should sell a copy of OSX to you and those of your ilk for the same price that Microsoft charges for a retail copy if VISTA Ultimate. New and present Mac owners get a discount certificate that entitles them to buy a copy for $129.
Re:In a word... (Score:2, Interesting)
But don't let facts stop you.
Re:In a word... (Score:3, Interesting)
The "secret sauce" is the EFI BIOS and the power control / hardware monitoring chip. This chip also happens to contain decryption keys for encrypted OSX binaries.
Re:In a word... (Score:2, Interesting)
Re:In a word... (Score:3, Interesting)
A full OEM copy of Windows is actually cheaper than an upgrade copy so MS provides no incentive to cheat the system.
Actually, if you've bought an OEM copy of Windows and installed it on an existing computer or a VM, then you've probably violated the EULA and should have paid 3x over the odds for a "full retail" copy. No incentive to cheat the system?
OEM Windows is only supposed to be sold as a bundle with a new PC (in the UK* resellers often insist that you buy at least a hard drive or a motherboard before they'll sell you an OEM copy), you are obliged to install it on that hardware, to which you must attach the license sticker, and cannot transfer the license to another machine.
Practical upshot: whenever you buy a new PC or the parts for one, there's a powerful financial incentive to get Windows with it "just in case". Now that's anticompetetive!
(*Possibly EULAs have more teeth under UK law which, sadly, is a bit lacking in the "fair use" department).
Re:Will not affect Microsoft (Score:3, Interesting)
I think that is precisely why Apple is suing them. They wish to stop Psystar from buying copies of OSX.
If Apple were my company, I would run it totally differently. But on the other hand I wouldn't like it if someone came in and told me how to operate my business in a free market.
Re:Sure you can... (Score:3, Interesting)
You've glossed over an important point. Psystar doesn't just copy the disc onto the computer for you, they copy the software off, and then apply the equivalent of a crack-patch, decrypting and/or replacing multiple segments of it so that it can run on their hardware.
It's not just "the disc"; it's your disc. You are authorizing them to copy and adapt the software.
If they just shipped a blank hard drive, a shrink-wrapped retail OS X box, and an instruction pamphlet pointing users to the osx86 project, there would be absolutely nothing to see here.
All they're doing is taking it one step further: they install that software on your computer and follow those instructions, doing exactly what you could do, on your behalf, with your authorization, which is just what 17 USC 117(a) says you can authorize them to do.
Re:not exactly right... (Score:3, Interesting)
Please note...
I said...
if psystar wins...
If they win, that sets the tone for any followup lawsuits and sort of ties the hands of Apple as to what they can do...
Please remember that IBM tried to force clone makers out of business and lost. I doubt that Apple has more resources than IBM.
Re:In a word... (Score:3, Interesting)
Then why do you need a system restore disk to get it installed? Why do they need to run their own update service to patch OSX, if not to protect the changes they've made?
Further, the changes that they made to the Software Update service and the changes they made to the patches themselves might be enough to make it a "derivative work".
Re:In hindsight (Score:2, Interesting)
Re:not exactly right... (Score:3, Interesting)
Actually, I know they can...
I was discussing this with a co-worker, and he mentioned that back in the 70s, a lot of IBM's system 360 parts were cloned by a 3rd party, and that they tried to tie their software to their hardware in an attempt to prevent the 3rd party vendor from running their software on 3rd party hardware. It went to court, and IBM lost...