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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."
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Psystar Will Countersue Apple

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  • by sincewhen ( 640526 ) on Tuesday August 26, 2008 @08:02PM (#24758285)
    I don't think so - There is a difference between commodity hardware (which you may need to patch the OS to run on) and custom hardware protected by a large number of patents.
  • by Anonymous Coward on Tuesday August 26, 2008 @08:02PM (#24758289)

    are doomed to make overstatements like this.

    For a couple of years, Apple _licensed_ the Mac OS to third parties (Power Computing, UMAX/SuperMac and some others). Apple only 'shut down' Power Computing by buying out their Mac clone business for $100 million.

    This is going to significantly undermine any 'appliance' argument they make.

  • Re:Wow. (Score:3, Informative)

    by vux984 ( 928602 ) on Tuesday August 26, 2008 @08:14PM (#24758393)

    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.

    No that's not true.

    If a company decides to ignore the GPL, their legal problems aren't really from violation of the license, but from violation of copyright.

    Remember, by DEFAULT Tivo, Linksys, etc have no right to redistribute GPL code. The GPL is what grants them the right. So if they decide to redistribute without adhering to the GPL they are violating copyright.

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

    by 2nd Post! ( 213333 ) <> on Tuesday August 26, 2008 @08:14PM (#24758397) Homepage

    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."

  • by bky1701 ( 979071 ) on Tuesday August 26, 2008 @08:15PM (#24758409) Homepage
    "If I make a product, I have the right to refuse to allow you to sell it at your store."

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

    by 2nd Post! ( 213333 ) <> on Tuesday August 26, 2008 @08:22PM (#24758497) Homepage

    Why is the comparison invalid? You are free to install OS X on your own machine as long as you do not distribute the code! This is not because the license allows it, but because you are not commiting copyright infringement.

    In this case PsyStar is both installing OS X AND distributing the copy they installed.

    So the comparison is valid: distribution of copyrighted code is copyright infringement and is the power that allows copyleft to exist. And, incidentally, allows Apple to argue copyright infringement.

  • by gnasher719 ( 869701 ) on Tuesday August 26, 2008 @08:28PM (#24758553)

    The big question here is what kind of product the boxed version of Mac OS X really is.

    That question is really easy to answer by looking at the license, and all your three answer were wrong. The license allows you to install one copy of the software on one Apple-labeled computer. It doesn't have to be an upgrade, so it is fine if you deleted your old copy of MacOS X, or if you install it on an Apple-labeled computer that never had MacOS X installed (or never had any MacOS version installed). In practice, it will usually be purchased by people who would otherwise buy an upgrade version.

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

    by Fred Foobar ( 756957 ) on Tuesday August 26, 2008 @08:40PM (#24758711)

    In Apple's case, you aren't allowed to copy the OS from disc to computer

    Not so. Read USC 17, Section 117:

    (a) Making of Additional Copy or Adaptation by Owner of Copy.â" Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
    (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
    (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

    The first condition states that the copyright owner cannot restrict you from making copies of their software if this is an essential step in using the software (eg, copying from CD to hard disk and then from hard disk to RAM).

    The second condition is also important but for a different reason (the right to make an archival copy).

  • by mr_matticus ( 928346 ) on Tuesday August 26, 2008 @08:53PM (#24758885)

    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.

  • by Ungrounded Lightning ( 62228 ) on Tuesday August 26, 2008 @09:10PM (#24759023) Journal

    OS X is subsidized by hardware sales.

    Presuming this is true: The court remedy might require unbundling the hardware and software sales.

    Apple could set the cost of each wherever it wants. But it will need to keep the sum affordable to keep selling the "out of the box experience".

      - If it sets the SW price so high that the HW is underpriced you'll see people buying bare Apple machines and loading other OSes on them. This also leads to people being used to running other OSes on Apple hardware.
      - If it sets the HW price so high that the SW is underpriced you get people like Psystar, selling Apple-like hardware running Apple's OS.
      - If it sets them both proportionally to their actual costs, but at a premium, you get both at once. B-)

    It gets even more interesting if the court requires them to split into two business units.

    (And of course Apple could win. Or Apple could lose but the court prescribe other remedies.)

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

    by EvanED ( 569694 ) <> on Tuesday August 26, 2008 @09:25PM (#24759151)

    Damn Nissan for not letting me put a Ford engine in my Bluebird!

    Way to miss the point.

    Let's say you could, mechanically, put your Ford engine in your Bluebird. Would Nissan or Ford sue you for doing so?

    Your modified Bluebird actually turns out pretty well, and you decide to call it a Ostrich (it's a bird that doesn't fly) and sell it. You buy some Nissan Bluebirds and some Fords, and move the engines over. Would Nissan or Ford sue you for doing so?

    The point isn't that Psystar wants to make Apple make OS X so you can run it on their computers, the point is that you already can run it on their computers and Apple is suing to prevent them from carrying out that distribution. (And Psystar is suing back saying that Apple's requirement that you use OS X only on their hardware -- roughly equivalent to Nissan saying that you can't mod their car -- is illegal.) I have pretty conservative (with respect to current laws) opinions on IP, but even I think that Apple is in the wrong here.

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

    by spiderbitendeath ( 577712 ) on Tuesday August 26, 2008 @09:36PM (#24759243) Homepage
    Close, but not really there yet. PC - Personal Computer "A personal computer (PC) is any computer whose original sales price, size, and capabilities make it useful for individuals, and which is intended to be operated directly by an end user, with no intervening computer operator." []
  • by Anonymous Coward on Tuesday August 26, 2008 @09:37PM (#24759257)

    It's actually "Not Labeled For Individual Retail", because the food is missing the required information from the FDA (% DV and such). You're pretty far off base on this one.

  • The cable company is a local monopoly. If they weren't, they wouldn't be forced to do anything.

    Apple has at most 7.5% of PART of the market.

    It's not any kind of monopoly.


  • Re:Balls of Steel (Score:3, Informative)

    by serviscope_minor ( 664417 ) on Tuesday August 26, 2008 @10:16PM (#24759595) Journal

    You are missing my point: This is not theft.

    Apple does not even sell Mac OS X "at a full retail price," it licenses it as an upgrade for running on (and only on) Mac hardware. It's find if you don't like that, but that doesn't give you commercial rights to pirate it.

    The selling as an upgrade is a dubious claim since it works on its own. This is also not the commercial piracy of selling a bunch of copies: Apple get paid retail price for every single copy sold.

    You can't buy a Madonna CD, remix it, burn it to CD-R and resell it as a Madonna album, even if you buy a copy for every copy you sell. That is still copyright violation, because Madonna had the right to decide what is sold as her work.

    You're distributiung a new copy. Still not the same. Also, see below.

    You also can't buy a CD (which is licensed for individual use, as CDs are)

    No, no, and a thousand times NO. This meme has to die. You do not license CDs. You buy them. They're yours to do with as you wish, except that the government limits what you can do through copyright law. They are not licensed. However, the owner can choose to waive their reserved rights.

    and broadcast it on your radio station.

    Actually, yes you can, if you pay the fee. Don't forget that this ia covered by statutory licensing, and they can not refuse you if you pay the fee. IIRC, this is in Title 17, chapter 1, section 115 of the law.

    The fact that you aren't aware of how licensing works doesn't make you a suitable arbitrator of how one company can reuse the work of another.

    The fact that it's largely not licensing means that they can't dictate the terms as much as you seem to think.

    "Breach of contract" implies the presence of a contract. Again, you seem to be assuming that Apple has an implied contract to sell Mac OS X to anyone who wants to sell derivations of it to enhance the value of their hardware. That is not the case.

    Well, the suit alleges infringememt of copyright and violation of the EULA (berach of contract). Which implies a contract. The law also speaks a lot about reproduction of derived works. Very little (any?) is mentioned about derived works where no reproduction is involved. In this case, PyStar is buying a copy (OK), mangling it (OK), and then selling it whole without reproducing it. Who the hell knows if that is OK -- it's going to be settled by a judge.

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

    by Solandri ( 704621 ) on Tuesday August 26, 2008 @10:26PM (#24759693)

    Why is the comparison invalid? You are free to install OS X on your own machine as long as you do not distribute the code! This is not because the license allows it, but because you are not commiting copyright infringement.

    In this case PsyStar is both installing OS X AND distributing the copy they installed.

    The doctrine of first sale [] comes into play here. Right now the courts have issued contradictory rulings on it. But if it's eventually decided that software is sold, not licensed, then PsyStar would be in the clear. They are simply reselling a copy of OS X which they legally bought and paid for.

    Your interpretation falls under the alternative opinion that software is licensed, not sold. Under your interpretation, Microsoft can prohibit you from selling your unused copy of Windows, you can't sell your copy of Oblivion or Halo 3. Heck, even book, music, and movie publishers could claim they're simply licensing their product to you, so you can't resell it if you don't want it anymore.

    Personally I wouldn't want to live in a world which works the way you want it to. IMHO if it sat in a box on a store shelf and I made a one-time payment for perpetual rights to use it, I've bought it. If I enter into a contractual agreement for recurring fees and my right to use it ends when I stop paying (e.g. World of Warcraft), then I've licensed it.

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

    by korean.ian ( 1264578 ) on Tuesday August 26, 2008 @10:28PM (#24759717)
    Ok, since I need to be pedantic. If Apple was primarily a software company, they wouldn't be losing money. Since Apple makes most of their money through hardware sales (be it computers, iPods, or iPhones) they can be considered a hardware company. MS was never anything but a software company (barring their hardware accesories) so your comparison is invalid.
    It's fairly widely known that hardware sales at Apple drive OS development. I would suspect that the clones winning this legal battle would force Apple to lower their hardware prices, and raise their software prices.
  • Re:In a word... (Score:4, Informative)

    by FilterMapReduce ( 1296509 ) on Tuesday August 26, 2008 @10:31PM (#24759737)
    Your post is correct; unfortunately, "PC" is also used (famously in the "I'm a Mac, I'm a PC" ads, and elsewhere) to indicate, in a lawsuit-paranoid way, a computer that ships with Windows without mentioning Windows by name.
  • Re:In a word... (Score:2, Informative)

    by __aaqvdr516 ( 975138 ) on Tuesday August 26, 2008 @11:14PM (#24760091)

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

    That's not entirely true. You can do a full install of Vista using only an upgrade disk. It just requires a partial install, a reboot, then the full install.

    It's not exactly apples and oranges...Just sayin'. []

  • by nomadic ( 141991 ) <nomadicworld@gmai l . c om> on Tuesday August 26, 2008 @11:15PM (#24760093) Homepage
    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.

    Of course they respect Apple's copyright; they're buying each copy of OSX. If they were making illegal copies you'd have a point.

    This is Apple saying that they want to be able to sell things, then control how those things are used after they sell them. It's equivalent to Apple coming to your house and specifying how you can use your computer.
  • Re:In a word... (Score:3, Informative)

    by aristotle-dude ( 626586 ) on Tuesday August 26, 2008 @11:19PM (#24760133)
    Apple computers have some hardware differences. For instance, they use EFI instead of BIOS and stuff like optical audio ports are software controlled to only turn on when there is something plugged into them. While Intel macs might use some off the shelf components, they are usually customized in a way so that they can be addressed from the OS rather than BIOS level.
  • Re:In a word... (Score:4, Informative)

    by bhima ( 46039 ) * <Bhima.Pandava@g m a i l . com> on Wednesday August 27, 2008 @01:06AM (#24761045) Journal

    Apple has never actually used the TPM and it is not even on the newer boards.

  • by coachellamasada ( 1350549 ) on Wednesday August 27, 2008 @01:47AM (#24761331)

    There were some grey market clones in the 80's. Some illegally duplicated official Mac ROMs and were quickly shut down. Others used actual ROMs from disassembled Macs in modified cases (like the Outbound) and were allowed to exist, obviously because you were basically buying a Mac computer at full price that was altered after market (like the touch screen "Modbooks" you can buy today.) I wouldn't even call those "clones" though.

    There was a round of clones in the mid-90's that were officially licensed from Apple. Apple pulled the plug and they went away. No major lawsuits there, it was just business.

    Neither situation has much to do with the Psystar case.

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

    by slyn ( 1111419 ) <> on Wednesday August 27, 2008 @01:50AM (#24761357)

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

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

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

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

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

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

    by Sentry21 ( 8183 ) on Wednesday August 27, 2008 @02:07AM (#24761439) Journal

    IANAL, but I just read 17 USC 117 [], and it doesn't seem to say that.

    What it DOES say seems to be this:
    1. You can make copies of stuff you own, as long as it's for archival purposes, or you need to do so to use it (e.g. copying software from DVD to USB key to install on a machine with no DVD drive)

    2. You can sell/give away/transfer/etc. an exact copy only while doing the same to the original, transferring all your rights (e.g. you can give someone the backup of the install disc as well as the original)

    3. Copies of software can be made for the purposes of maintenance or restoration, as defined later on in 17 USC 117 (e.g. imaging a system to a new hard drive).

    I don't see anything there that invalidates EULAs. I'm pretty sure that if EULAs had been invalidated it would have been all over slashdot by now.

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

    by MrResistor ( 120588 ) <> on Wednesday August 27, 2008 @03:09AM (#24761761) Homepage

    In this case PsyStar is both installing OS X AND distributing the copy they installed.

    You seem to be confused about what distribution actually means.

    If I buy a copy of a particular program, install it on my computer, and then sell that computer to someone else, that is perfectly legal under copyright law. The only problem arises if I try to install the same purchased copy on another computer, because then I am making a copy that falls under the restrictions of copyright law.

    You see, copyright law covers only the right to make copies. It does not cover the right to distribute (or redistribute) copies that were legally made. I don't understand why that's so hard for people to understand. I mean, it's right there in the name: "copy right".

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

    by blackchiney ( 556583 ) on Wednesday August 27, 2008 @04:36AM (#24762121)
    As someone that has rolled their own hackintosh I can tell you what goes into a hackintosh. And if they are really able to modify the hardware without modifying the software than I find that truly amazing. In short here is what goes into a a HackMac. 1 OS X retail CD. modified boot loader (the darwin bootloader actually) modified SMBIOS.kext modified AppleACPI.kext modified AppleAHCI.kext sometimes, modified IONetworkingFamily.kext There are a few other things I'm missing or don't apply to my machine (patched kernel for AMDs); but basically the software on a Psystar is most definitely modified.
  • Re:In a word... (Score:3, Informative)

    by Skuld-Chan ( 302449 ) on Wednesday August 27, 2008 @02:19PM (#24768605)

    Yeah my OEM Intel motherboard uses EFI too: [] if you're curious.

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