Psystar placing its trust in antitrust

Psystar is looking at raising antitrust concerns in hopes of turning back an Apple lawsuit over the Open Computer.

(Credit: James Martin/CNET News)

Lawyers for Mac clone maker Psystar have confirmed they have hired the A-Team in order to battle Apple.

That's "A" as in antitrust, according to Computerworld. Psystar has retained Carr and Ferrell to fend off an Apple lawsuit over the Open Computer, and one lawyer for the firm sought to shift the focus away from copyright and trademark violations to software licensing agreements, or EULAs, and antitrust concerns.

If you've been paying attention to the Psystar saga, this shouldn't come as a surprise. Legal experts interviewed months ago told us that Psystar really has little choice, since the copyright and trademark violations appear to be so clear-cut. After all, if you're marketing your product's ability to run another company's product, without approval to use that trademark and in defiance of the licensing agreement for that product, you had to expect a fight.

Psystar's only real hope is to either convince the legal system that a software licensing agreement is a nebulous concept that allows software companies to get away with anything they want (relatively possible) or to prove that Apple is harming consumers and competition by only allowing its software to be installed in its hardware (somewhat harder).

These will be expensive, time-consuming defensive maneuvers that once again raise the question of just how Psystar intends to afford a high-profile defense. In June, Rudy Pedraza of Psystar told me the company had sold "thousands" of Open Computers, which at $549 a pop might pay for a few hours of Carr and Ferrell's time. Does Psystar have a sugar daddy?

[McBlayde]

This is like suing Dell for being a monopoly for making Dell computers. Apple just happens to sell theirs with an OS. Psystar could do the same thing, just design their own OS, buy the MS OS, or use Linux. How hard is that to figure out?

[gerrrg]

Not even the same.<br /><br />Dell doesn't design the OS, neither does HP nor Acer. And the Microsoft OS does not prevent Dell from installing its OS, does it? What proprietary secret does Dell have, that others can't emulate or copy? The parts inside of a Dell aren't some secret sauce.<br /><br />If Microsoft suddenly told everyone that in essence, you could only get Vista on your new computer if you bought it from a licensed vendor using authentic Microsoft designed/manufactured computers, the entire world would be up in arms. Dell would be instantly out of business.<br /><br />Why does Apple get a pass on the antitrust meter? It seems like Microsoft is being treated to a completely different set of rules from that of Apple, don't you think?

[eBob1]

No, not really. It is more like Roxio suing Dell for buying its software and pre-installing it on their computers.

[kelmon]

It's more along the lines of suing HP for not allowing HP-UX to be installed on non-HP servers.

[ikramerica--2008]

If Sony hasn't been found guilty yet for all it's proprietary formats (and there are many, leading to very expensive equipment for professional video, for example) I can't see Apple being guilty of monopolizing anything.

[gerrrg]

Digital tape...licensed.<br />BDA....licensed.<br />Memory stick...licensed.<br />Trinitron....licensed.

[LenSp]

A Sugar Daddy? Hmm, that makes a lot of sense. Either the trial lawyers themselves see Apple as a potential target and are self-funding OR someone else in electronics industry is using Psystar as a stalking horse to take down Apple. Or perhaps a financial type is trying to weaken Apple enough to get a foot in the door.

[Michichael]

Gonna be funny if it turns out MS is funding both Apple and Psystar in an attempt to weaken Apple's credibility in the industry....

[Lerianis]

That is a good possibility, in all honesty. It could be that Microsoft or another business is helping Psystar in order to break Apple's hardware/software monopoly.

[Vegaman_Dan]

While blaming Microsoft for this would be a popular opinion for lots of people to jump onto, I don't see it happening as Microsoft's own EULA's are excessively restrictive as well and they certainly would not to have courts look too carefully at EULA's in the industry. They don't benefit from any of this and stand to lose more as a result, hence why I think we're seeing companies in the industry carefully being very very quiet about any sort of opinion, lest they draw attention to themselves.

[ikramerica--2008]

All this will lead to is Apple placing a physical chip on their logic boards that needs to be there to run OS X. Anyone who then reverse engineers this chip will be violating various laws. Frankly, it's sad that reverse engineering software doesn't seem to be as protected as reverse engineering hardware (OS X is controlled via software locks).

[gerrrg]

Somehow you're under the illusion that companies won't follow the standard operating procedure of having some other entity in another country reverse engineer said chip, to create a separation of liability.

[Vegaman_Dan]

Putting a restrictive physical chip on the board would only reinforce the monopoly argument that the countersuit is trying to prove.

[Perry_Clease]

Sugar Daddy? Well follow the money, I would think that Apple has investigators doing just that.

[Travis Ernst]

I thought I had followed Apple well in the courts. Didn't they open the market up (when they were using the 60x series PowerPC) for people or companies to TRY and develop hardware towers?<br /><br />As long as each tower has it's own (hardcopy) licensed OS CD/DVD along with it, there is no software copyright issue. The company selling the hardware pre-paid for a "potential" operating system the user can use (or not use). The buyers can choose to install Linux if they want. Pre-installed, with no discs WOULD be a legal problem.<br /><br />This just creates a competition environment that Apple may need to better hone it's edge. Look at Microsoft. They have "owned" the other OS market literally. They also make the primary softwares used by that OS (office, explorer cover two).<br /><br />Should be interesting to see the outcome.

[Lerianis]

Even if they are using a bulk users license like Dell or Toshiba gets from Microsoft, the argument you made still holds, Travis.

[oneoclock]

EULAs only apply to end users, not resellers. Even if somebody challenged Apple's EULA successfully in court, that would only allow them to _use_ OSX on non-Apple gear, it still wouldn't give them the right to resell. Apple has the right to choose how their products are being sold, regardless of whether or not they have the right to determine how their products can be used by end users. Two entirely different issues.<br /><br />And even if for arguments sake, a court would grant Psystar the right to bundle OSX with their boxes, then they'd still be guilty of trademark violation. You can't just tell the court what you want to be charged with. It's like being in the dock for drunk driving and telling the court "Your honour, I disagree with the charges, I rather like to be tried for driving at night because it would be easier for me to win the case then."

[Vegaman_Dan]

Apple's argument is that they only sell the OS as part of the original hardware- they have never sold the OS separately. All you see in the stores are software updates for use only on existing Macintosh systems- even if they are standalone products. Apple will need to start controlling who they sell the OS to for updates by requiring some sort of verification process- perhaps only sell the updates online for download on Macs only after they have been registered at Apple's site. It's going to be a tricky situation for them. Whatever they do, they fall right into the argument that they are a monopoly. It will be very tricky.

[runswithscissorsXX]

"or to prove that Apple is harming consumers and competition by only allowing its software to be installed in its hardware (somewhat harder)."<br /><br />hey psystar, maybe this will help in your legal battles - i would have GLADLY given up microsoft 10 years ago, were it not for the ludicrous over-pricing and ultra-proprietary nature of apple. i refuse to buy a computer that's $500+ over-priced simply to get access to a better operating system. <br /><br />reading this article made me laugh...ecstatically. i hope to the god i don't believe in that psystar wins. maybe then i'll own an "apple" for the first time ever.

[applusr]

Please continue to buy you ultra crappy computers.

[aka_tripleB]

I don't want to pay the $500+ more because of one fraudulent lie everyone uses: "Apple is more secure." You can argue until you're blue in the face, but the facts speak for themselves. OS X was the first OS hacked back in March at CanSecWest<br /><br /><a class="jive-link-external" href="http://news.cnet.com/8301-13579_3-9905095-37.html?tag=mncol" target="_newWindow">http://news.cnet.com/8301-13579_3-9905095-37.html?tag=mncol</a><br /><br />And within a day or two a new update for the iPhone it is hacked. It might be a derivitive of OS X, but it's still OS X.

[applusr]

Seriously,<br /> people do you understand the definition of a monopoly. Microsoft was labeled monopolistic because it would not let you use any browser other than IE (this is only one example there are many). Apple is not a monopoly, because they do not force you to buy their computers, and you can install other Operating systems if you want. When Apple sells their computers, they are sell a complete unit the OS and all. Now to the people who said that EULA only apply to consumers, Psystar would be the consumer because they are not a apple reseller. <br />ikramerica--2008 talked about Sony, they are one of many companies they have closed systems with proprietary formats, like Adobe, Microsoft, Mars, Hershey's just to name a few.

[marianjianu]

I was allways wondering why I can not install Apple's MacOS on other system than an Apple one. Why can I install the MS's Windows on any computer? Why have I to buy a Mac for this, paying much more for THAT hardware, than for a Windows-compatible machine with the same components?, Please, You may compare the prices for an equivalent PC, PLUS the price for MacOS X - they never arise the price for a Mac computer!!! What am I allowed to receive for this additional payment? NOTHING! It's the same case as with latest iPhone in my country (I'm not living in USA) - the official resellers complain for "cracked" iPhones - a lot of people want to buy an original one, but the "official" partners of Apple can't sell them 'cause they have not any! Why?

[kelmon]

The simple answer to this is that Microsoft is a software company and Apple is a hardware company - Apple only makes software to sell its hardware much like Garmin makes its navigation software to sell its hardware. Simply because one OS company licenses its software to run on everything does not mean that the same must apply to everyone else. HP, for example, does not license HP-UX to run on other companies' servers.

[kelmon]

Even if Psystar wins this case, they're finished so it's a no-win situation for them. If they lose then it's all over. If they win then bigger and better companies will probably enter the market and compete them out of business.<br /><br />As a consumer I would never buy something that wasn't officially supported and I certainly wouldn't trust this company to provide the necessary support. For starters, they're providing their own OS X updates because the official Apple ones won't work. I sure don't want updates to my OS to come from a 3rd party.

[exmsft]

Idiotic. Psystar was selling non-Apple equipment and installing Apple upgrade media as new. I said when the morons from Psystar started doing this that Apple would take them down. Mark my words - treble damages...

[Rawnchie14]

This is why OSX will NEVER dominate the market, becuse Apple wants them ONLY on Macs they build. They have every right to keep it that way though, so Psystar is SOL. But I wish people weren't so delusional to figure Apple's hardware to be superior, because it is not.<br /><br />When you buy a Mac, you're basically buying a very very expensive operating system. But hey, it's working out for them, there are plenty of suckers out there.

[applusr]

I bet you'll find a lot more older macs still being used vs. older windows boxes. I personally have never said Apple products are superior, but they have better quality control. All my apples just work, my dads windows box always needs tweaking.