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Psystar Will Countersue Apple
Posted by
kdawson
on Tue Aug 26, 2008 07:31 PM
from the take-that dept.
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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Apple Files Suit Against Psystar 805 comments
Reader The other A.N. Other, among others, alerts us to the news that Apple has filed suit against Psystar, the unauthorized clonemaker. (We've been discussing Psystar from the start.) The suit alleges violation of Apple's shrink wrap license and trademarks, and also copyright infringement. News of the lawsuit, filed on July 3, first surfaced on a legal blog. There's speculation that the case has been sealed.
[+]
Apple: Apple Suit Demands That Psystar Recall OpenMacs 759 comments
Da'Man writes "The Psystar saga takes another series of turns. Not only is the website down but an examination of the suit filed by Apple shows that the Cupertino Goliath wants Psystar to recall all Open Computer and OpenServ systems sold by the company since April. It seems that Steve Jobs is out to totally sink Psystar and put an end to Mac clones."
Firehose:Pystar countersuing Apple by Anonymous Coward
[+]
Lawsuit Between Apple and Psystar Moves Toward Settlement 242 comments
An anonymous reader writes "Psystar and Apple have agreed to alternative dispute resolution to keep the public eye away from their disagreements, and to reduce legal costs. This will eliminate any rulings that would set a precedent over Psystar's claim that Apple is violating anti-trust laws by tying Mac OS X to only their hardware and thus creating a monopoly. This could result in a profit for Psystar's business, but eliminate their line of open-computing Mac-compatible PCs. On the other hand, what's to stop a similar company from doing the same thing?"
[+]
Psystar Antitrust Claim Against Apple Dismissed 256 comments
CNet has a report that a federal judge has dismissed Psystar's antitrust suit against Apple. Observers had said that the counter-suit embodied the Mac clone-maker's best chance of prevailing and staying in business. We've been following Psystar and the dueling lawsuits since the beginning.
[+]
Psystar Claims Apple Forgot To Copyright Mac OS 648 comments
Preedit writes "Mac cloner Psystar is claiming in new court papers that Apple's copyright suit against it should be dismissed, because Apple has never filed for copyright protection on Mac OS X 10.5 with the US Copyright Office. Infoweek is reporting that the claim, if it holds up, could open the door for third-parties to enter the Mac market without fear of legal action from Apple. In its latest set of allegations, Psystar is also accusing Apple of bricking Macs that don't run on genuine Apple hardware." We've been following the Psystar-Apple imbroglio since the beginning.
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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....
Re:I've always wondered... (Score:5, Insightful)
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.
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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.
Appliance != Software Monopoly (Score:5, Insightful)
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.
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.
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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?
hmmm (Score:5, Insightful)
Re:In a word... (Score:5, Insightful)
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.
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Re:In a word... (Score:5, Insightful)
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.
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Re:In a word... (Score:5, Insightful)
A full OEM copy of Windows is actually cheaper than an upgrade copy, so MS provides no incentive to cheat the system.
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Re:In a word... (Score:5, Insightful)
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.
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Re:In a word... (Score:5, Insightful)
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.
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Re:In a word... (Score:5, Insightful)
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Re:In a word... (Score:5, Insightful)
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.
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Re:In a word... (Score:5, Insightful)
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Re:In a word... (Score:5, Interesting)
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Re:If they win (Score:5, Insightful)
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.
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Re:In a word... (Score:5, Insightful)
> ..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.
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Re:In a word... (Score:5, Informative)
First sale doctrine allows PsyStar to resell copies of OS X, but not install it on their PCs!
MS vs Zamos is of interest ONLY if PsyStar was strictly reselling OS X. More interesting is Jacobsen vs Katzer, where the Artistic License is an enforceable copyright restriction. In this case the issue is whether the OS X EULA contains an enforceable copyright restrictions:
1) "Single Use and Family Pack License for use on Apple-labeled Systems"
2) "General. The software (including Boot ROM code), documentation and any fonts accompanying this License whether preinstalled on Apple-labeled hardware, on disk, in read only memory, on any other media or in any other form (collectively the âoeApple Softwareâ) are licensed, not sold, to you by Apple Inc. (âoeAppleâ) for use only under the
terms of this License, and Apple reserves all rights not expressly granted to you."
3)"Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so."
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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?
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Re:Yeah, let's tell Apple how to do business (Score:5, Insightful)
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.
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Re:Yeah, let's tell Apple how to do business (Score:5, Informative)
No, sorry, you do not. You have the right to refuse to sell the product to me - which to an extent prevents me from selling it. However, you have no legal or moral right to force me to not sell your product after I have legally purchased it from you, or someone you have authorized to sell it.
Once you put an item on the market, your control of it is gone. If you do not like that, do not sell it.
"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."
The right of first sale arguably trumps Apple's EULA. Quite a few states do not even allow EULAs to remove certain rights of the user/middle man.
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Re:Wow. (Score:5, Insightful)
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.
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Re:Those who forget history (Score:5, Informative)
You've got the right idea, but you're applying it backwards.
Because it is now an open and popular platform, the existence of substantially similar and functionally equivalent alternatives actually makes a stronger case for Apple.
Consider Data General. The linchpin of the decision was that the CPU was useless without the OS--that without the tied product, the tying product had no utility. Without that detail, the decision does not work. It's very different from the case of a bundle of an x86 computer system and an x86 OS. There are dozens of compatible operating systems and dozens of compatible hardware manufacturers. You don't have a paperweight when you buy any kind of computer, because you don't need a specialized OS to run it. Apple and Psystar are missing the critical element of Data General and Digidyne.
Attempts to reverse it, such that the tying product is the OS are amateur at best. The OS does not come with a computer attached. It is sold as an accessory and upgrade by a company to existing users of that same company's products. There's no requirement of a purchase when you buy the OS--it's not being tied. The sale is premised on the existing possession of a Mac, but this is nothing new. Upgrades are always sold in this manner; it's not unique to software, either.
It's promotional availability: buy one, get one free. You can't say that you can't get the tied product (the free item) unless you buy the non-free one. Promotional tying is also quite common in bundle packages, e.g., toothpaste with a toothbrush for $5, while the toothpaste alone is $4 and the toothbrush alone is not available for sale. You can't demand the toothbrush for $1. There are thousands of examples of favorable pricing or special product availability based on a prior purchase.
That Apple chooses to sell OS X at a particular price, for its existing customers only, simply does not require that that price be made available to anyone else. The same can be said of Microsoft and its OEM and upgrade pricing policies, and the same can be said for companies who condition the sale of accessories, add-ons, upgrades, etc. on the prior purchase of the underlying product.
It is not immoral or illegal to set the terms under which you will or will not sell something. It further is not incumbent on that party to devise a foolproof system--the argument that an individual can buy one off the shelf and finagle an installation out of the disc is not convincing. It's an argument that seems to be begging for invasive sales procedures and DRM. Apple offers owners of its computers a good product at a low price and trusts consumers to honor that.
Showing up to say that Apple is getting what it "deserves" by having a desirable product at a below-cost price, sold over the counter without restriction or complication, and that Apple's business model is not their concern is exactly why corporations hate consumers, especially the kind that often populate this forum.
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