Gutsy/foolhardy Mac clone maker Psystar responded in August to Apple’s copyright infringement lawsuit with an anti-trust lawsuit against Apple. Earlier this week, Apple’s lawyers filed a motion to have the suit dismissed, calling it “deeply flawed.” In its statement, Apple contends: “One of the bedrock principles of antitrust law is that a manufacturer’s unilateral decision concerning how to distribute its product and with whom it will deal cannot violate the Sherman Act.”
If you ask me, Apple’s motion ( http://blogs.zdnet.com/hardware/images/apple_motion_to_dismiss_psys… ) is very soundly researched and reasoned. There are more than 50 similar or relevant cases referenced. It doesn’t seem too likely that the court will not dismiss Psystar’s counter-case. And I don’t see what else can Psystar do to prevent Apple from obliterating them (based on the copyright and trademark infringement claims ), or at least delay it. Tough break, Psystar.
I am not so sure. It is going to be very interesting when it comes to court. The case seems to depend on the allegation that what Psystar is doing amounts to trying to force Apple to license OSX to it. It then argues (p13) that
the antitrust laws cannot be used to force Apple to license its Mac OS to a competitor such as Psystar.
Most of the brief is written from this point of view.
But is this actually what Psystar is doing, and is this what the case turns on? Presumably Psystar’s attorneys will argue to the contrary. The argument will presumably be that no-one wants Apple to license Psystar to make clones. Psystar does not need any licensing to install OSX on anything it chooses. The argument will be that Apple has no right to prevent Psystar acting as an agent of a purchaser.
In this capacity, it procures a retail copy of OSX, which is freely available on the retail market, it then installs it on the customer’s behalf in a computer of the customer’s choice, just as it would install Linux or Windows. What exactly about this requires Apple to license Psystar to make clones? If this is making clones, why does it require Apple’s permission at all: that is the question. After all, if Psystar were to buy retail copies of Windows on a customer’s behalf, or OEM ones for that matter, and install them in hardware of the customer’s choice, what say would Microsoft have in the matter? If it were to procure retail copies of Solaris for x86, does anyone doubt it would have the right to install them on hardware of the customer’s choice?
I still suspect that what Apple is going to have to prove is that it has the right to prevent, by conditions of sale, a customer either himself personally or through an agent, buying a retail copy of OSX, and then installing it on non-Apple branded hardware. I don’t see that the filing approaches proving this. And its going to be real tough. What the filing seems to prove, if anything, is that Apple does not have any obligation to sell OSX at retail or through any particular channel, or in partnership with any particular organization. Well yes, that was never in doubt.
What was in doubt was whether, having sold it at retail, it could dictate what buyers, either directly or through an employed agent, installed it on.
Not the least difficult thing about this is going to be that the Apple and non-Apple branded hardware are identical except for the case. Same main boards, same memory, same disks, same processors, same opticals, graphics and sound cards. So somewhow Apple is going to have to show that it is entitled to enforce a post sales restriction on use that does not stipulate even what hardware the customer can install his retail purchase on, no it only stipulates where that hardware was sourced.
Color me sceptical. You have to imagine, lets say, an auto parts case. GM, lets say, buys Firestone tyres and equips a car with them. Now, by condition of sale, it forbids the buyer to use any other tires than Firestone ones. This, maybe, it might have a rational case for, and maybe could get away with, or at least argue a defense for. But it goes further. It says, you have to buy those Firestone tires from us, despite the fact they are freely available, identical ones, on every street corner. You may not buy them. Don’t believe it would fly.
But, we will see. Going to get very interesting. By the way, what will be even more interesting will be the case of the usb stick from efi-x or the plethora of imitators who will probably appear shortly. Now how are they going to argue that one? Here it is in pure form, the user buys a retail product and then uses it in a way the maker does not like. Can the maker still sell at retail, but by conditions on sale forbid that use? I don’t believe it. In a sense, Psystar has this as a fallback. Just ship the PC, and a usb stick to boot from, and tell the buyer to bring his own copy of OSX. Then what?
Edited 2008-10-03 19:06 UTC
Why is Apple so eager to try and have the counterclaim dismissed? I’m not a lawyer and not as familiar with antitrust law as I probably should be, but it seems to me that if such a principal really is stated in the law then the court will dismiss the counterclaim on their own without help from Apple. Perhaps they’re not as sure of themselves as they want us to think?
Standard legal procedure really. Why fight a long and expensive court battle when you can destroy their case before it even gets off the ground?
NAIAL (Nor am I a lawyer), but here is what I have seen:
Whether it’s the initial complaint or a counterclaim lawyers will normally try to probe for any weakness in the basis of the suit by requesting a dismissal based on case law and/or the logic, completeness or sometimes timeliness of the claim or counterclaim. This is a first gasp tactic, not a last one. Once the request for dismissal is denied or an amended complaint is submitted then the case proceeds. Sometimes even to a trial. But, as mentioned above, there’s no point contesting a case whose alleged merits can be debunked.
As to a judge dismissing the case on his/her own, my understanding is that the judge rules on what is presented. If the plaintiff or counterclaim plaintiff fails to state a [valid] claim the judge will usually note this and dismiss without prejudice so that an amended complaint can be filed. This was seen in the Wallace vs. IBM and Wallace vs. GNU cases where even after 5 tries no supportable legal claim had been submitted and eventually the judges threw them out *with* prejudice.
Edited 2008-10-03 19:01 UTC
In the opening of the motion, Apple states the following:
This is flawed logic, on purpose. Psystar’s counterclaim is not attempting to force Apple to license its software to them. Not at all, unless I magically miss something so tremendously stupid about Psystar’s claim.
No, Apple sales its software publicly to virtually anyone who will pay. Making the binary form of the product usable for whatever purpose the owner ( of the copy ) would so desire. Apple can state which uses the software will be supported in deployment, but cannot say that a specific use is banned outright, with only a few exceptions.
However, regarding Apple’s name and product name being used, this should be basically irrelevant. Psystar isn’t claiming the product as theirs nor are they claiming some sort of official support via Apple. They are not in a large, legal, licensing agreement which bars them from re-distributing software, pre-installed on non-Apple computers.
No, in fact, Psystar has no restriction upon them to not do what they are doing. They legally reversed engineered a product for interoperability, then they legally built machines compatible with Apple’s software offerings, and then they installed a completely legal copy of MacOS X onto the compatible machine, thus they created a product.
This product did NOT claim to be made by Apple. It DID NOT brandish the Apple logo ( AFAIK ).
No copyright violation. No trademark violation.
It is obvious what Apple is trying to do: Ensure that their business model doesn’t change, and contend that Apple’s computers + MacOS X is a single product, and thusly a singular component of this product is not subject to anti-trust laws. They also try and quietly claim the market itself doesn’t exist.
From the motion:
This is utter nonsense, of course. The computer market consists of lots and lots of players, virtually everyone of them bundling software with their product, and all of those products are nearly identical to an Apple computer. I mean, after all, an Apple computer *IS* just a computer. It isn’t something new, it is just the same thing done differently, and some contend, better.
Google: types of monopolies
[vertical/horizontal, Microsoft vs Apple]
If Apple can paint their own computers as something magical that has no competitors because it is so unique as to be in its own market, then it wins. Psystar needs to show that a Mac computer is just that, a computer.
I wondered how hard this would be, so I figured I’d run through a little test:
1. Apple Mac Pro:
( some of these have option upgrades ).
Processor: (2) 2.8GHz Quad-Core Intel Xeon
Memory: 2GB 800MHz DDR2 ECC, buffered
Graphics: PCI-Express, ATI Radeon HD 2600 XT 256MB
Storage: 320GB SATA II; 7200 rpm; 8MB cache
RAID: Optional
Optical: 16x DVD±R DL/DVD±RW/CD-RW, IDE?, SATA?
Software: MacOS X, whatever works
2. Alienware Area-51 7500
Processor: Intel® Core™ 2 *(your choice)
Memory: Up to 4GB Dual Channel DDR3
Graphics: PCI-express, Whatever you want
Storage: SATA/ II, Whatever you want
RAID: Optional
Optical: IDE / SATA, Whatever you want
Software: Windows, whatever works
How do we make these two machines seem so radically different as to NOT be competitors in the same market, simply when the only difference is the default choice of software?
Hmm… hrm. Uh, maybe not allow anyone else to get the software??
BUT, Apple lets anyone get the software, and merely through a few technical hurdles in the way of would-be cloners.
—
Indeed, Alienware’s Area-51 7500 was a random pick. Most every computer sold today is as similar to the Mac Pro as they are to most any other given computer on the market. Especially considering the rift between Windows Vista, Windows XP, & Linux meaning the market already has software diversity, so different software cannot be used to render one’s-self out of the market in definition.
Apple is merely another variant on the same old thing.
Indeed, Apple will only pre-install a copy of MacOS X with your Mac, but they they can’t prevent you from installing anything else.
Alienware will likely only be willing to install Windows XP or Vista, but you can put whatever works on it yourself.
So.. WTF is the difference between a HP/Dell/Compaq/Alienware machine and an Apple machine? They are the same underneath and in most or all options, the parts are even as interchangeable between a Mac and a HP as HP is with Dell and Dell is with Compaq, and as they all are with my home-built, or the alienware.
The entire difference is in three places: Marketing, Physical appearance & quality, Software.
That is *IT*. Apple charges LOTS of money for yesterday’s computers in new packaging, and a new image, and MacOS X pre-installed.
Well, Psystar has not violated their rights with marketing, Psystar has not copied their packaging, and Psystar legally obtained MacOS X, because Apple sales it to the public as its OWN, segregate, product ( like Microsoft does Windows ).
And THAT is what this all boils down to: If Apple sells MacOS X to the public, or to retailers, then they will have no option in permitting Psystar to continue, unless the judge is just stupid, or I’m somehow missing an elephant sitting on my chest.
HOWEVER, should Apple prevent the sale of the software without a computer, one could call that illegal bundling. Their hardware is nothing special anymore. When they were the PPC king, and made their own hardware, their motion would have made more sense. Today, however, they are nothing more than a systems integrator with a pre-installed operating system which they so happen to also develop.
No problems making a competing product. Indeed, back in the day PPC CPUs were for sale to whomever, and one could do whatever was needed for interoperability – and some did. Apple’s saving grace was merely the amount of custom hardware in the machines. This no longer holds true, even if a new ROM is flashed on an ATI card for MacOS, the hardware is unchanged.
Apple’s computers ARE NOT DIFFERENT ENOUGH in the RIGHT WAYS, to get away with Apple’s claims. Period.
Go Psystar!
–The loon
P.S. I am running BeOS R5.1d0, Apple’s MacOS X, Microsoft Windows XP SP3, Ubuntu Linux, and another BeOS install for live testing.
Yes, one machine:
Intel Pentium 4 D 925, 3.0GHz – Dual Core
512MB DDR RAM ( for software compatibility )
2x SATA 80 GB drives,
3x PATA IDE 120×2, 80×1
ATI Radeon AnW 9600 Pro, 256MB
1 DVD-/+RW, DL
Software choice: I’ll take ’em all please!
“No, in fact, Psystar has no restriction upon them to not do what they are doing. They legally reversed engineered a product for interoperability, then they legally built machines compatible with Apple’s software offerings, and then they installed a completely legal copy of MacOS X onto the compatible machine, thus they created a product.”
Actually Psystar does have legal copyright restrictions on them. For example, they are not licensed to re-distribute OS X, but yet they are doing so, which is the basis for the claims in actuality. Psystar downloads all the updates from Apple then hosts them on their own site, therefore redistributing a copyrighted work without permission. What would be different is if Psystar was for hire, you supplied the hardware, and hired them to install OS X with your own copy. That would be and is a different issue altogether. Unfortunately that is not the case at all.
They do not need a license to redistribute OSX. No-one needs a license to resell items bought at retail. Its perfectly legal. All you need is a customer with money and willing to buy. Doesn’t matter whether its cars, books, OSX, Windows, lawnmowers.
No, this is not happening, at least it does not seem to be, from their site. What they seem to be doing is having the customer download a package, which then goes to the Apple site where the update is hosted, and downloads it, and then installs it. With some modifications. Again, if this is what they are doing, there is no copyright violation.
It will be argued that your description of what is legal is exactly what Psystar is doing. On your behalf, they are buying a retail copy of OSX for you. They are then installing it for you on the hardware of your choice, which they assemble for you. They charge a fee for all this. How is it different than if I offer the following service: lots of people want (for instance) Mac Minis in larger cases with room for bigger hard drives. I buy them, modify them, put them in a new case, copy over the partitions, and sell them. Do you think I need a license to do this? Why? Of course I do not, any more than I need a license to repaint you a Chevy in a lovely custom shade of bright pink, and if enough people want them, I may take to carrying a carlot full of the things, rather than doing them on special order.
“Do you think I need a license to do this? Why? Of course I do not, any more than I need a license to repaint you a Chevy in a lovely custom shade of bright pink, and if enough people want them, I may take to carrying a carlot full of the things, rather than doing them on special order.”
Actually yes I do. In your scenario with the cars you certainly do need a license to do that. Not from Chevy, but from the local government. It is called a business license. Without that license they can and will shut you down, lock the doors, and take your equipment and vehicles on the lot to auction. After all, without a business license that means you have not paid your taxes on your income. Unless of course you do that and not charge for the paint or your time, and give the vehicles away at no cost.
Are you suggesting that Pystar doesn’t have a business license? Ridiculous.
And even if so, that would be a dispute between Pystar and the state regulatory agency; Apple would not be involved.
“Are you suggesting that Pystar doesn’t have a business license? Ridiculous.”
No, that was in response to the painting and selling car analogy posted by someone else. Psystar definitely has a business license.
We can all armchair this and say what we think should happen. The fact is we need to wait and see what the court does decide. Only the court can decide if Psystar did indeed violate copyright or not with the evidence given. The whole anti-trust thing by Psystar is absurd, as there is plenty of competition in the market place for PC’s, which Apple has always been. PC stands for Personal Computer, of which Apple has been one for years whether they used Intel or not. The Commodore was a PC, the Amiga was a PC, etc.
“No, this is not happening, at least it does not seem to be, from their site. What they seem to be doing is having the customer download a package, which then goes to the Apple site where the update is hosted, and downloads it, and then installs it. With some modifications. Again, if this is what they are doing, there is no copyright violation. “
Do you realize how stupid is what you are saying? Do you really believe that Apple is hosting anything helping Psystar doing its business?
Psystar is pre-installing OS X on their computers,
http://www.psystar.com/index.php?&page=shop.product_details&flypage…
That’s illegal, period.
alcibiades did not imply/claim that Apple is hosting updates to benefit Psystar nor Psystar users. alcibiades merely said that it appears that Psystar provides a script/package that downloads for the Psystar user the OSX updates hosted by Apple.
Exactly how is that illegal? Likewise, if one hires a computer store to build a custom computer and install Windows on the machine, is that illegal?
It is not illegal for one to hire another entity to install software on their machine
How so? It may be a violation of the EULA, which is exactly what this case is about: Pystar contends that the particular clause in the EULA that forbids the user from installing OS X on non-Apple hardware is unenforceable. Apple, not surprisingly, contend otherwise.
No license is required to redistribute anything. The law grants you that right. You just aren’t allowed to make copies of it. If you go to Walmart and buy all of their pizzas, including their own store brand, and open up your own store and sell it, you have every right to do that. You can even do it at a greater price and try to make a profit if you like. Nobody can deny your right to do that. It is still Walmart’s product so you can advertise it as such, and you own it, so you can sell it.
The problem comes into play if you open up the boxes, modify the boxes, and then try to resell them. Then its not Walmarts product anymore as you modified it, so you cannot violate their copyright and trademark.
Yeah sure you don’t understand the issue but you think of yourself well informed enough to make completely flawed statements.
“However, regarding Apple’s name and product name being used, this should be basically irrelevant. Psystar isn’t claiming the product as theirs nor are they claiming some sort of official support via Apple. They are not in a large, legal, licensing agreement which bars them from re-distributing software, pre-installed on non-Apple computers.
No, in fact, Psystar has no restriction upon them to not do what they are doing. They legally reversed engineered a product for interoperability, then they legally built machines compatible with Apple’s software offerings, and then they installed a completely legal copy of MacOS X onto the compatible machine, thus they created a product. “
You don’t get the point, OS X is a intellectual property of Apple, intellectual property is protected by the law, and as a consequence Apple can not be forced to distribute or to sell OS X in a way that they don’t agree with, they own OS X like you own your car and you would certainly not allow someone else to drive it without your approval.
Now you seem to be confused on the real issue with Psystar. If you have a pc and you install OS X on it by any mean, then Apple does not appreciate but it does not forbid you that technically, no technical barriers are in place to to that nor Apple will sue you for that because basically it does not know it that you are doing it. In other words that’s your personal usage, you are not making business of installing OS X on a different hardware than a mac and sell it to make money.
Psystar is in the other hand just doing that. They are using third party intellectual property to make money without agreeing on a exploitation license. This is the deal. Go to look at their web site, it is clearly said:
“The price includes a retail copy of Leopard in its original package. We preinstall OS X on your machine so that you may be able to begin using your Open Computer right out of the box.”
They install OS X on their machines that they sell them with a price including the price of a retail copy of OS X. They can’t do that because they don’t have any exploitation license for OS X provided by Apple. And allow me to doubt on the fact that Psystar buys a copy of OS X for every computer that they sell, they don’t, so this is piracy. And don’t forget that for every Psystar computer sold, there is not even a dollar that goes to Apple, even though that their intellectual property is used in a business selling computers.
What Psystar is doing is simply not right, you can’t deny that, just get your fact right.
I wondered how hard this would be, so I figured I’d run through a little test:
1. Apple Mac Pro:
( some of these have option upgrades ).
Processor: (2) 2.8GHz Quad-Core Intel Xeon
Memory: 2GB 800MHz DDR2 ECC, buffered
Graphics: PCI-Express, ATI Radeon HD 2600 XT 256MB
Storage: 320GB SATA II; 7200 rpm; 8MB cache
RAID: Optional
Optical: 16x DVD±R DL/DVD±RW/CD-RW, IDE?, SATA?
Software: MacOS X, whatever works
2. Alienware Area-51 7500
Processor: Intel® Core�¢„�¢ 2 *(your choice)
Memory: Up to 4GB Dual Channel DDR3
Graphics: PCI-express, Whatever you want
Storage: SATA/ II, Whatever you want
RAID: Optional
Optical: IDE / SATA, Whatever you want
Software: Windows, whatever works
This is typical of the “i don’t know what i am talking about” argument.
In your comparison you fail to mention that the Mac pro machine is a basic configuration that you can customize as you could with the Alienware machine. So it applies for the graphics, the storage, etc… A little bit of honesty would be welcome.
Secondly, you fail to mention that the Mc Pro supports up to 4 internal hard drives for up to 4 TB of storage, the Alienware supports two ghard drives; you fail to mention that the Mac Pro is a dual socket machine that supports up to 8 cores (two quad core Xeons), the Alienware supports only one processor with slower FSB; you fail to mention that the Mac Pro supports up to 32 GB of buffered FB-DIMM memory, the Alienware supports only up to 4 GB, do you realize that? You fail to mention that the Mac pro supports SAS 15000 rpm hard drives, the Alienware does not, and you fail to mention that the Mac Pro has well better RAID support than the Alienware.
I mean how can you say that the Alienware has something to do with the Mac Pro, that boggles the mind? Those are two completely different machines for different uses. The former is a desktop pc, the second is a worskstation. Trying to compare then make you just foolish.
“Indeed, Alienware’s Area-51 7500 was a random pick. Most every computer sold today is as similar to the Mac Pro as they are to most any other given computer on the market.”
No they are not, Apple designs his motherboards (a motherboard in a Dell is not the same as the one in a Mac pro or in a iMac), it design specific controllers for its machines, Apple designs specific cases for its machine (hence the motherboard have to be custom designed), etc…. I get 50+ sensors on a Mac pro, i get firewire 800, i get multitouch trackpads on a MB pro/air, i get MageSafe, i get sudden motion sensors, etc… Look at the internal design of a Alienware
http://www.alienware.fr/product_detail_pages/Area-51_7500/area-51_o…
and compare it with a mac pro
http://www.apple.com/macpro/design.html
You can’t say that Apple machines are identical to other computers (and why they should be anyway?), that’s a matter of fact.
“Especially considering the rift between Windows Vista, Windows XP, & Linux meaning the market already has software diversity, so different software cannot be used to render one’s-self out of the market in definition. “
What? So you are saying now that diversity in software is not good anymore or that it has reached a limit, you are crazy. It is not because that windows or linux are one the market that someone else can sell its own software and use its software to introduce a new diversity. What you are saying is that no one can compete with software any more, this is crazy….
“Apple is merely another variant on the same old thing. “
No it is not, you lack of arguments so you say non sense.
“So.. WTF is the difference between a HP/Dell/Compaq/Alienware machine and an Apple machine? They are the same underneath and in most or all options, the parts are even as interchangeable between a Mac and a HP as HP is with Dell and Dell is with Compaq, and as they all are with my home-built, or the alienware. “
All cars have wheels, a engine, doors, etc, that does not make them identical and that does not prevent every car maker to differentiate themselves in the quality of the car, the options, the engines, etc…. You are talking non sense….
“That is *IT*. Apple charges LOTS of money for yesterday’s computers in new packaging, and a new image, and MacOS X pre-installed. ”
Yesterday computers? A Mac pro is a yesterday computer, an iMac is a yesterday computer? Keep trolling…..
“Well, Psystar has not violated their rights with marketing, Psystar has not copied their packaging, and Psystar legally obtained MacOS X, because Apple sales it to the public as its OWN, segregate, product ( like Microsoft does Windows ). “
This shows how limited your thinking is. Psystar is selling OS X without license, someone else can’t sell the car that you build and take the money to him/her, that’s the same thing. Psystar is making illegal business with third party intellectual property, Psystar is making business by marketing their products on behalf of a third party intellectual property without any licensing agreement. Apple sells OS X because it owns OS X, it has designed, it has built it, so it can sell it and decide that it is the only one to sell it, period.
OSX is protected by copyright law and probably patent law. So, what? What does that fact have to do with an entity reselling a legally purchased, retail copy of OSX?
Apple (nor any other manufacturer/vendor) is not allowed to force any post-sale use of their product. If they don’t agree with this basic fair trade principle, too bad.
What kind of crazy, twisted analogy is that?
A more accurate/appropriate analogy is that I own my car — not Dodge, even though Dodge is the manufacturer. Dodge cannot force me to use their repair parts nor a certain brand of oil, nor can they force me to drive on certain roads, nor do they have any say in whether or not I can drive the car off of a cliff.
Likewise, I own my copy of OSX, and I can do whatever I please with it, as long as I do not break any laws (namely copyright laws). Just like owning a car then reselling the car, I can resell my copy of OSX.
Entities have been legally selling used software for decades.
If I ever have a legal problem, I hope that you are the lawyer representing the opposing party.
Please name the specific statute that prohibits commercial entities from reselling legally purchased retail products, including retail products based on intellectual property.
Used record stores resell intellectual property in the form of used CDs and LPs. Perhaps you should inform those stores of the statute that makes their business illegal.
You point out that Psystar is using retail copy of Leopard, yet you claim that not even a dollar goes to Apple. You do understand that Psystar is buying retail copies of OSX and that Apple gets a portion of the money from those retail purchases?
Actually, what Apple is doing is just not right, nor legal. In this instance, Apple is trying to dictate the post sale use of their product — they are trying to force users to install OSX only on their hardware. This act is not only unfair to the hardware competitors of Apple, but it also artificially limits the choice for the end user. There are good reasons for fair trade laws.
If I sell someone the car that I built, the purchaser is then free to resell that car to anyone. Same with software.
Apple can be the first to sell OSX, and Apple can designate other parties to be the first to sell OSX. However, Apple has no say on the resale of a copy of OSX, after that first sale. Of course, no one is allowed to break copyright law, unless additional permission is granted by the copyright holder (as in GPL, BSD license, Creative Commons, etc.).
Edited 2008-10-04 05:49 UTC
I have no need to confront your personal attacks, just google ‘looncraz.’
Apple is NOT being forced to do ANYTHING other than what they have been doing already, which is selling MacOS X as a stand-alone product ( even if they don’t mean it to be, if you can buy it at retail, it falls into the x86 operating system market ). Within this market, Apple is wrong.
As I said, if Apple can prove enough differences between an HP/AlienWare/Whatever PC to their PC offering, they might win. Very simple. Your assuming this has already been proven.
Not so. While the Apple offerings are way ahead in the quality department, they are fundamentally the same as any other personal computer.
Your argument ( & Apple’s ) is much like trying to say that a Ferrari is so different from other cars that it is no longer a car, and thus is not subject to the laws of the road.
No one would argue that the Ferrari isn’t one awesome car, but no one would agree that it was so awesome it was no longer a car at all – y’know four wheels, an engine, seats… meant for transporting bodies.
Here is the REAL kicker:
EVEN IF Apple shows that the Mac is so unique as to be in its own market, they have little muscle to support their claims against Psystar. This boils down to anti-competition laws where the right of interoperability is guaranteed in the U.S..
If Ferrari makes a new type of spark plug their cars require and someone else finds a way to make a spark plug similar enough to work – Ferrari can do nothing about it unless the other party literally made an exact copy. The functioning and interfaces are open game – even if patented.
Sad thing, though, is the fear in corporate America to confront the “norm.” Often, even if something is completely legal ( such as reverse-engineering the mp3 file format and competing with the patented product ), no corporation will do it, simply due to the expense of the likely litigation, and the frightening ineptitude of most U.S. judges.
If Apple wants a leg to stand on, they need to do one ( or all ) of the following:
1. Stop all retail OS sales.
2. Require buyers to sign agreement ( in ink )
3. Only allow upgrades from within Mac OS X
4. Encrypt MacOS X install DVDs, 256-bit +
5. Mutate the Macintosh platform even more
6. Ignore cloners, sell MacOS x86 unsupported.
In fact, if Apple could get smart:
Create a x86 universal install DVD. The DVD would have NO SUPPORT, but would be a bit cheaper ( like $99 ). It also would not care what machine it was on. Apple would supply NO DRIVERS or changes for compatibility. Make a little bit of money from this newest “black” market.
They don’t have to, but Apple is trying to convince everyone that Psystar is suing to make the above a requirement upon Apple ( they aren’t ).
—
Psystar does NOT need a license to sell MacOS X, because they are buying the copies at retail. Psystar WOULD need a contract for special pricing, but Apple isn’t setup to provide said contracts.
Ultimately, it is the availability of MacOS X at retail where the problem exists. Retail has rules beyond the control of Apple. Many of those rules are for protecting consumer’s rights. Retail-copies of software are legally treated as consumer-copies. Psystar thusly became a consumer, which would legally transfer the license to the software at no profit ( presumably – they could be in trouble if they made profit from the software sale itself without a license ).
As Psystar claims that the “retail price of MacOS X” is already included, I would say they knowingly protected themselves in this manner. See, if I buy 300 copies of MacOS X, I have a right to resell them to my heart’s content – I own the copies. In fact, as an individual, I have the right to try to make a profit from that sale.
A business entity doesn’t have the right to attempt to profit from another’s product according to the EULA, but the LAW doesn’t distinguish between entities, giving any business the right to buy something from Company A and sell it to Company B, with markup. If that wasn’t legal, the free market would not exist.
For instance, in Apple’s world, if Co A buys OS X, regardless of how, no one else can use it, nor can Co A use that to make any product. In the real world of laws, Co A can do whatever they want, within the law, with that one copy they own. Even if they wanted to sell that copy at a profit because they could, or even if they wanted to include it in a competing product. So long as no specific agreements between Apple and Co A have been signed, Co A is not obliged to do anything other than stay within the bounds of the law.
Apple’s world is like going to a warehouse, buying 10,000 light bulbs, without any agreements, and then having the warehouse tell you that you cannot resale those bulbs, and if you do, you can’t do so for profit nor can you put those bulbs in any lamps, because the warehouse just happens to sell lamps. NO warehouse would ever say that, of course. But Apple is just brazen enough to try it.
I don’t need to argue against the law, it is not applicable. Not to mention that Apple is NOT a private company, to which the quoted section pertains. Apple CAN refuse to sell the retail copies, regardless, but they did not do this. Psystar purchased them legally, without Apple stopping them. Apple needs to employ its OWN mechanisms to prevent Psystar and other would-be cloners from obtaining copies of MacOS X. Outside of this, Apple can do nothing in the absence of other violations.
Psystar did not claim their product to be an Apple Macintosh computer, they did not pretend that the Apple support would be honored, nor have they engaged in piracy ( unless they actually have, which would be incredibly stupid ).
Apple’s sentiments mean NOTHING. The law matters. And not all laws are applicable at the same time.
They can if you sell your software separately. Without ANY agreement, in fact.
OEM system integrators have license with Microsoft regarding Windows simply because of the high price of retail copies of Windows. No other reason. Dell pays something like $67 for a copy of Vista/XP Home, but must purchase a certain number of licenses per quarter.
Apple has given no reason for others to try and form an agreement on system integration of MacOS. They sell it at retail, and don’t offer OEM licenses.
Let’s say you own a hotel and put a sign that says “Do not rent to uncircumcised people.” Is that enforceable? No. Legal? Yes.
If Apple says “MacOS can only be installed on Apple-branded computers,” is that enforceable? No. Is it legal? Yes, in most cases.
BUT, could the hotel sue a resident if they found him/her to be uncircumcised? NO, but they can’t be sued, successfully, unless they violated some anti-discrimination laws.
Apple makes its money from every retail sale, they get paid for every Psystar sell. In fact, they make MORE that way than when a typical Mac-user upgrades. WHY?
Simple: little to no support costs incurred for those sales, but they still got the same revenue.
Of course, Apple would claim that every Psystar sell represents a lost Macintosh sell. I somehow doubt this – the Psystar systems are CHEAP CRAP. I would certainly never buy one ( nor would I buy a Macintosh ). I would, however, buy MacOS X regularly if I could get a legally unrestricted copy. I like
This must be a troll, because even Apple fanboi are not this stupid, but what the hell, I’m sure I have some point to make somewhere along the line.
No they don’t. Intellectual property is treated differently than physical property, which is why you don’t have to give your car to the public in 17 years like you do with a Patent.
They don’t NEED an ‘exploitation license’. If anything they should also charge for the installation as an additional service.
You seem to be very knowledgeable though, so perhaps you can tell me why software is the only copyright protected work that has restrictions on use not backed by actual copyright law, or sometimes even any law at all (ex, restrictions on publishing benchmarks). At least in the United States, we have certain rights to a copyright protected work that EVEN THE CREATOR OF SAID WORK cannot take away.
On the chance that you feel these constitutional rights are immoral, I hear Communist China is nice this time of year, but they’re quickly becoming more capitalistic than even the United States.
They must have a great counterfeit facility then, because those boxes and DVDs that come with the machines sure look like they were made by Apple.
Not even Apple claims this. Though for your further legal education, I would head over to wikipedia and look up what ‘Libel’ is.
As I pointed out before, no it isn’t.
I do not need a license to resell a copy of a work I legally purchased. I do not need a license to hang a painting in a house. I do not need a license to teach a song to someone. I do not need a license for my baby to dance to Prince. I DO need a license to make copies of a work for publication, free or otherwise. I DO need a license to use a trademark in any capacity other than to compare with like products or imply compatibility.
The problem is that software is extremely different from any other creative work, and it is ill protected by our current Trademark, Patent, and Copyright laws.
And this is not an anti-trust issue. It really goes much further than that, but with the way Psystar is handling this, they risk setting a precedent that’s gonna screw it up for everyone else trying to fix the system.
Good commonsense “non Apple idiotic” reasoning there.
Dave
“And THAT is what this all boils down to: If Apple sells MacOS X to the public, or to retailers, then they will have no option in permitting Psystar to continue, unless the judge is just stupid, or I’m somehow missing an elephant sitting on my chest. “
No you are stupid, you can not understand a simple concept: if you created something by investing money, employing working man intellectual or manual power, then you own tis creation, being software, cars, books, TVs, clothes, etc.
And the Sherman Act says:
” the [Sherman Act] does not restrict the long recognized right of a trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may arefuse to sell. “
How can you argue against the law? You are embarracing yourself.
“HOWEVER, should Apple prevent the sale of the software without a computer, one could call that illegal bundling. Their hardware is nothing special anymore. When they were the PPC king, and made their own hardware, their motion would have made more sense. “
No they are, sorry you are trolling. A Honda and a Toyota can have similar basic technical features, that does not make them identical, or that the Honda is not special in comparison to the Toyota.
“Today, however, they are nothing more than a systems integrator with a pre-installed operating system which they so happen to also develop.”
Oh, so they develop their OS and they are only system integrators, like Dell is, or Alienware is. What a bunch of non sense, again you fail miserably to understand intellectual property, what should i say, you must be stupid.
“Apple’s computers ARE NOT DIFFERENT ENOUGH in the RIGHT WAYS, to get away with Apple’s claims. Period. “
You keep talking about hardware difference but that’s not even the question. The question is: I have created the software and the hardware that i sell, can someone else use the software that i have created for my hardware (having some similar components or not to some other hardware out there, that does not matter), to sell its own hardware without agreement, without license and by violating my intellectual property?
“P.S. I am running BeOS R5.1d0, Apple’s MacOS X, Microsoft Windows XP SP3, Ubuntu Linux, and another BeOS install for live testing.
”
No one prevent you to do that, again as long as you don’t decide to sell computers with third party software without agreeing in a license.
And by the way, Dell, Alienware, or whoever else sell pc with windows because Microsoft provides them with an OEM license, so they sell computers with windows pre-installed on it because Microsoft allows them to do that, they signed and agreed in a license.
Psystar is selling computers with windows, so presumably they have taken a license from Microsoft, why we require them to agree with a license when it comes to windows and not when it comes to OS X?
Think about that….
We need to discuss this calmly and logically, and we need to be clear about what points go to what. We especially need to stop calling each other stupid, it does not progress the argument.
No, you do not need a license from MS to sell machines with Windows. MS has nothing to say about it. You do not believe me? Go here:
http://www.ebuyer.com/store/Software/cat/System-Builder-Software-(O…)
You can buy as many OEM copies of whatever as you want, and having done so, you can install one copy per machine on as many machines as you want, and either charge a fee for doing it, or bundle it with the price of a machine that you’ve installed it on.
If you really wanted, and could get anyone to pay the price, you could do this with retail copies as well, and also not need a license. Naturally, if you start doing this by the million, you’ll want to deal direct with MS. You’ll get a better price and a more convenient to use package.
Someone remarks that Apple owns OSX like I do my clothes and can therefore dictate what customers do with it. Well yes and no. Apple owns OSX. It can sell to who it likes. It chooses to sell a particular copy at retail. Having done that, it no longer owns that copy, and it cannot tell the buyer how to use it.
Think of it like a book. I bought a copy. I did not buy the book. The copyright owner has the right to make copies, or allow others to make copies, and he did not sell me that right. On the other hand, I own my copy like I own my clothes, and if I choose to cut bits out of it, read it in the bath, paint the cover colors, he has nothing to say. Just like if I do the same thing with my nice new Brooks Brothers button down shirt, Brooks has nothing to say either. Just like if I buy a Polo shirt, and just under the logo have my initials embroidered on it. Lauren has nothing to say about it.
What I buy at retail is my own copy – books, records, films, whatever, I can use them as I like, and resell them as I like. And yes, it is a sale and not a license in all those cases. If it barks like a dog, looks like a dog, chases rabbits, eats dog food, mates with dogs, then has puppies, no court is going to buy that this here animal is really a kind of rhinoceras, whatever it says on the Eula that came with it.
If i buy a ford and buy a chevy engine. Modify it to run in the ford. Then advertise and sell the car. What laws are broken?
If I buy a piece of software designed for one computer. Modify it to run on another computer. Then advertise and sell that computer along with the legally purchased software. What laws am I breaking?
Dell and OEMs sell Windows preinstalled and modified with the drivers necessicary to run on their computers along with the windows restore cd and a license for windows which were bought by the oem then resold to the buyer.
I’m still waiting for a real 100% compatible mac clone to come out that will run osx straight out of the box.
I am not a lawyer. I’m not even going to pretend I know as much to really argue either way. What I am is interested as a consumer, and even if not probable, I’d like to see it go to court to test EULA’s in the United States.
It will not test Eulas in the US. Agreed, it might be interesting to have them tested, but this will not do that. It will test whether some conditions on post sale use, imposed as conditions of sale in any manner you like, are enforceable.
Some clauses in Eulas are valid, regardless of this case. Some are not, because they would not be valid as conditions of sale, whether in Eulas, on paper, or consented to by engaging in a rain dance and bowing three times to Cupertino. This has nothing to do with Eulas. It has to do with conditions of sale, whether imposed in Eulas or in any way you like. Its the conditions that count, and that will be tested, not whether they are in a Eula.
How you view this case is how you view a licence; whether you believe that you actually buy the software or whether you’re purchasing an ‘lease’ on the software itself – and thus there are conditions on the nature which you can use it.
Lets get one thing clear – you cannot *own* a piece of software because that would imply transference of intellectual property from one person to another, or more correctly, you would also own copy right to the software nature of the ‘buying’ the software. To some how claim that the whole EULA is valid ignores the complexity of the issue. Too bad that many here are more interested in screaming and frothing at the mouth over Apple, Microsoft, and so on rather than rationally look at the current state of affairs.
As for the ‘restrictive’ state of the EULA’s – here is a wonderful thing called ‘market forces’ – if you find that your rights are so egregiously curtailed by the said licence then don’t jolly well purchase it! tell the said companies, through your purchasing pattern, that you’re not going to use their product.
Of course, one can own software. There are two ways software is commonly owned: (1) one can own the code and hold the copyright and/or patent to the code; (2) and one can own a copy of the code/binary, with copyright limits on distribution of the software (but extra rights can be granted by the copyright holder).
The latter scenario is one that a lot of Apple fanatics can’t seem to grasp. However, it was very plainly explained earlier in this thread by another poster: owning a piece of software is like owning a book (or a music CD). One can re-sell the book. One can add pages to the book and write text in the margins, and then resell the book. One can burn the book. However, copyright law prohibits making and selling multiple copies of the book without permission from the copyright holder. Same with music CDs, and same with software. The same copyright law covers books, music CDs, software (although some extensions to the law have been added for software).
Software can also be protected by patents, but this case has nothing to do with patent infringement, as Psystar is purchasing retail copies.
Now, one certainly can view owning a copy of software as “being licensed” to use the software, but the fact is that the person who purchases a program can do anything they want to with that software, as long as they don’t break copyright law (nor infringe on any patents).
Furthermore, EULAs are generally irrelevant, in that the restrictions (and freedoms) usually listed in an EULA are already governed by copyright law. In addition, a software maker cannot impose restrictions beyond those spelled out in copyright law (nor beyond those spelled out in fair trade law). The only legal rights that a software maker can change in an EULA is to grant extra permissions, as is done in the GPL, BSD license, Creative Commons, etc.
Unfotunately, software is usually purchased before one encounters the EULA, so, it is too late after it is purchased. But, again, the EULA is irrelevant since it is superseded by copyright law and fair trade law. On the other hand, if Apple doesn’t want to prevent the resale of OSX, then it shouldn’t “jolly well” sell OSX separately!
Edited 2008-10-04 16:37 UTC
Well, you can buy a copy. The argument would prove that you cannot buy a book or a newspaper. But you can buy a copy, people do it every day at newstands all over the country. Its different from buying the book, that is, buying the publishing rights, which is what publishers do.
Software is the same. You can buy a piece of software, own the copyright, have the right to make unlimited copies or grant such rights. Or, which is quite different and rather more common, you can just buy one copy. You still bought it. Its just you only bought one copy, and that does not carry with it any copyright ownership.
So go buy a copy of Harry Potter, modify it, resell it and then let’s see how fast the lawyers come after you.
They would have nothing to say. I bought a heavily annotated book the other day, second hand. The guy had the right to buy it, annotate it, to sell it, and I then to buy it. No laws were broken. It was his copy to do with as he liked. I can buy a copy of OSX and install it on whatever I want. In pursuit of installing it, and for that purpose only, I may modify it.
What I may not do – and in this process have not done – is make and publish derivative works or unauthorized copies.
Edited 2008-10-05 06:43 UTC
Yes, go go go! I hate Apple as a company, and I hate their legal department, who’d screw their dead grandma to make a buck. I hate Apple that much that I’d love to see them get really ****ed over. Apple is one helluva monopoly, and it’s vastly hated in the industry for what it did to its resellers when it decided to introduce it’s own Apple store.
My take –
iMacs – good value, but still poor when compared to an equivalent PC
MacBook & Macbook Pros – over priced
PowerMac – vastly overpriced
iPod – vastly overrated piece of machinery
Sadly, modern people are like idiotic lemmings. The best thing that could happen is for Psystar to win this, and to open the market up and force Apple’s over-inflated prices down.
Then again, give the recent passing of the US $700 billion freebie bailout to irresponsible financial investors in the US, anything is possible in the US. Only in the US could the ****ups of the rich and powerful be shoved onto the poor majority. I say take the money and houses and cars away from those responsible and make THEM pay. It only shows how corrupt the US is.
Dave
It is funny how you show just how ignorant you are.
I am curious what price do you think Apple should put on its products? Why do you think you should have the ability to dictate to apple what it should charge for its product? If you don’t like apple don’t buy apple. It is as plain as that.
I have recently completely switched to apple. I had a Power Mac G4 for 4 years before I realized that it did everything I was trying to get Linux and windows to do. That same G4 is now close to 6 years old and is still going strong. How many people can say that about their 6 year old PCs? Most 6 year old PCs can’t keep up and are considered JUNK. This same machine is running Leopard. I would love to see how well a 6 year old PC would run Vista.
I own a macbook pro. I will be the first to admit that the macbook pro is NOT cheap. It is also not cheaply made like some of the foolhardy try to imply. I use this machine for work and in my travels I had come to the realization that the rest of the laptop market is full of Toys which run the TOY OS otherwise known as windows.
It is funny how people like you fail to realize how ignorant you are about OS X. My 5 year old is smart enough to realize how much better the apple OS is compared to windows. She has a 1 year old laptop which she uses to play games. She does not like it. She wants an apple. She prefers the 6 year old Power mac to the windows laptop. I know you might think that I somehow brainwashed her into thinking that. Well you would be wrong in your assumption.
The bottom line really is for you to get over yourself. If you prefer to play with your TOY OS and think that a $500 laptop with its unstable OS is somehow better than a Mac then use that. The truth is that we mac users don’t really care if you get it or not.
It goes the same for the BEST PHONE I have ever had. I have had somewhere around 10 different smart phones which include 3 different TREO models and NONE of them were as stable or versatile as my iphone. I would love to see you try to convince my wife to give up her iphone.
You should also go stand in the corner for your juvenile attempt to blame all of the financial problems on banks. The people buying the homes that they could not afford and paying stupid prices for them are just as much to blame.
Basically do the world a favor. Go stand in the corner and STFU.
“I own a macbook pro. I will be the first to admit that the macbook pro is NOT cheap. It is also not cheaply made like some of the foolhardy try to imply. I use this machine for work and in my travels I had come to the realization that the rest of the laptop market is full of Toys which run the TOY OS otherwise known as windows.”
Funny, I own a Macbook Pro as well. How do you stop the spinning beach ball without turning off the machine? Why does OS X look like something from Fisher Price? Why is it damn near unusable with a single bar across the top for all apps? Why do the apps not close when I tell them to? Please, I use OS X, Linux and Windows. They all have issues.
You stop the beach ball by updating your system. If you are getting it that much, add some ram. You can also force quit the application that is causing the beach ball. Slow downs with any OS are usually only the OS’s fault a percentage of the time. It’s usually the hardware that is slowing everything down. Your brain needs time to compute, comprehend, and think a question through, why not a computer? Can you fully comprehend a Calculus question in a thousandth of a second. Most likely not. Sometimes your computer needs some time to think. This happens with any OS.
I’m not sure how Fisher Price toys look, but maybe you should buy a Fisher Price “My First Computer” so you can learn how to use a computer. This helps for when you want to step up and be like Daddy.
The single bar across the top is just like the bar across the bottom in Windows. Except a thousand times more useful. The fact that you haven’t found the application menu, “dock”, across the bottom tells me you probably don’t own an apple product.
When you click the “x” on an application, it doesn’t close the entire application. This helps for when you want to reopen and application. It launches faster. If you want to completely close an application, you select the window, i.e. Firefox, go to the top menu, click on “Firefox”, and select “Quit Firefox”. Or, while you have the window selected, you hit command+q. Or, you go to the bottom “dock” right click the application and select “quit Firefox”. Many easy ways to do it, none of which, apparently, you have found.
Yes, all OS’s have their problems and quirks, but don’t dog on an OS because you don’t know how to use it.
“Yes, all OS’s have their problems and quirks, but don’t dog on an OS because you don’t know how to use it.”
I actually know how to use all 3 of those OS quite well. I was just wondering how you would reply as you obviously hate all things not Apple. Those are the common questions from people who switch to Macs. Have a great day
I suggest you learn a bit about history – Apple *did* screw it’s loyal resellers, it did *deliberately* undercut them with its own Apple store, effectively running many 3rd party apple store owners out of business. Apple also killed its 3rd party manufacturers many years ago (aka clones), for the same reason:
GREED
Apple products ARE overpriced. They are MOSTLY overrated. Note I say mostly – some Apple stuff is very good.
Apple is all about brainwashing. Nothing more and nothing less. The iPods are vastly overrated. The iPhone is just an expensive piece of phone – I personally don’t need a all singing, all dancin’ phone – I use a phone to actually make and receive calls, not all of this other crap like phones, calendars, friggen games, you name it. It’s overkill. Functional and feature overkill.
All operating systems have their issues, there is some things that Windows does better than OS X, and the same with Linux. For the VAST majority of people, Windows does the job, and does it well. That’s why business uses it. The same with Linux in the server environment. You see **** sweet all OS X server installs in the real world, don’t you?
You need to take a deep breath and get out some more in the real world. That Apple world you’re living in has some pretty dangerous fumes.
I stand by my comments that Apple is a litigous, bastard company. Two phrases reach my mind when thinking of Apple:
1. rotten to the core
2. Bad apple
As an ex employee, who was royally ****ed over by Apple, as someone who konws several others who had the same *hit done to them, and knowing Apple’s dirty history, they’re a company that I immensely dislike, and for good reason. People think Microsoft is a bad monopolist, boy, they need to pay more attention to Apple, it’s TEN times worse.
Dave
For Apple to complain that Psystar’s case is “deeply flawed” is highly hypocritical, considering that Apple’s operating system is full of schoolboy security flaws that are inherant of the design.
Since when was it against the law to buy a product from any one and then on sell that product to a third party?
If this was against the law, then billions of people world wide would be breaking the law everyday.
If Apple sell their software in a retail outlet and I buy 100000000000 copies of that software from the retail outlet. There is no one on this planet that can stop me from re selling that software to another person for profit.
Also, there is no law stopping me offering a service to install a single copy of the software on behalf of the owner of the machine I’m installing it on. As long as It’s his copy of the software and I’m not just simply copying a single copy and selling it multiple times.
This is what happens everyday in millions of computer stores around the world.
Anyone who thinks they can stop people from doing business like has been going on for thousands of years is insane!
Frankly I’m surprised Apple has the front to try and do such a ludicrous thing. IMO, they need a big stick shoved up their excreter hole, one purchased from a third party and forced in for profit.
Edited 2008-10-04 15:59 UTC