Apple sues clone maker Psystar
Updated at 9 a.m. PDT with comment from Apple, at 9:45 a.m. with more background on Psystar, and at 11 a.m. with details from the suit.
Apple has sued Psystar, the company that for months has been selling the Open Computer, a Mac clone.
Psystar's Open Computer, as seen shortly after its unboxing at CNET.
(Credit: CNET News)The suit was filed July 3 in U.S. District Court in Northern California. Although the action is listed in the federal court's electronic filing system, the complaint itself is not available.
Thanks to some shoe leather on the part of our ZDNet colleagues, we have a copy of the suit, which alleges copyright infringement, induced copyright infringement, breach of contract and trademark infringement, among other things. It seeks an injunction, damages, Psystar's profits and a recall of the Open Computers already sold as well as other remedies.
Of course, if anything, the surprising thing is not that Apple is suing Psystar, but what took them this long?
Psystar has been selling a desktop computer running Apple's Mac OS since April.
The company, a small Florida operation that also handles IT consulting for small and mid-size businesses, has had an interesting rise to fame. The company announced its plans to sell the Open Computer in April, only to encounter hiccups regarding payment, leading to speculation of whether it was even for real.
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However, in a few days time they did get things up and running, despite the possible violation of the legal terms that accompany Apple's operating system, which stipulate that it is only licensed for use on Apple-branded hardware. The company has since been shipping the $399 device and has also set up its own mechanism to offer OS updates, once they have been confirmed not to brick the Open Computer.
The suit was noted earlier Tuesday by ZDNet blogger Adrian Kingsley-Hughes and legal blogger Jorge Espinoza.
An Apple representative confirmed the company had taken action against Psystar, adding, "We take it very seriously when we believe people have stolen our intellectual property."
It's not clear what grounds Psystar might use in its defense. A Psystar employee said no one was available to comment on the suit.
During her years at CNET News, Ina Fried has changed beats several times, changed genders once, and covered both of the Pirates of Silicon Valley. These days, most of her attention is focused on Microsoft. E-mail Ina. 
Now that Psystar's made quite a number of sales, at a minimum Apple would not have to pay their lawyers for the trouble.
This is a good lawsuit to void Apple license. Steve Jobs like to sue people, let's stick this to him. I'm more than happy to contribute to Paystar legal defense to have EULA tested in court. Most companies think they can write anything in EULA and make it as seem as it is legally binding when some provisions in the EULA is against the law.
One thing to consider: if one part of a EULA is found invalid, the rest is still enforceable (most EULA's have a clause stating as much). That said, Apple is about to do something that no other vendor (including Microsoft) dares to: test the idea of a EULA in court.
I'm not so sure that's the case. The "derivative" consists of using a custom bootloader, which does not modify the OS itself, or any of its components. The Hackintosh patch/mod sets which do exist come from Darwin, the open-source component of OSX' core, which in turn is distributed by Apple itself.
It would be no different than an end-user replacing, say, Finder, with a home-built internal filesystem manager.
Some provisions in EULA are against the law. Microsoft sued a guy on ebay reselling operating system that came with the PC. Microsoft decided not to void its EULA by settling with him out of court. The guy brought up the first sale doctrine.
Also, the first sale doctrine doesn't apply to all software licenses but applies only to what the court recognizes as a "sale". So-called "enterprise" and "site" licenses would not generally fall under the first-sale doctrine, particularly if the licensee receives the right to make unlimited copies with specific limitations. If someone was reselling copies of Windows received as part of an enterprise license agreement, Microsoft could sue and win.
Microsoft tends to focus on people selling counterfeit media -- bootleg copies of their product disguised as the real thing. Even if you bought the original copy and have the right to resell it, you don't have a right to make/sell the duplicates, use MS logos and trademarks on your copies, etc.
What they should have done was sold the PC for $100 bucks more, and stuck a "free" copy of leopard with it. Users would install themselves.
Apple does nothing about Chinese iPhone clones that violate every imaginable copyright, trademark, patent and so on. Yet, Apple chooses to go after a company that just installs legal Apple OS on their machines. Of course they violated EULA, but that is nothing comparing to those iPhone clones, which Apple ignores. I guess you go after an easy target, like the recording industry goes after students, not after the biggest violator.
In this particular case, though, Apple's not complaining that the EULA was violated. They are claiming that Psystar is infringing on their copyright on OS X. Specifically, the act that triggered the legal response was that Psystar downloaded an OS X update from Apple's servers, modified the binaries and update package to patch it to work with their hardware, and then pushed that update out to their customers. Assuming Apple did not give them permission to do it, there's infringement in making the derivative work (modified files) and distribution of those modified copies of the work.
This is a joke, yes? With Apple's cash reserves they should buy out a garage operation rather than a professional company? Are you certifiably nuts?
I have a friend who would buy an old Honda Accord, modify it, and sell it at a higher price than the used car he bought it for.
I would agree with you if Paystar duplicates the operating system without paying for the extra license but when you make a purchase of said license, you have the right to modify it. That's the right of the first sale doctrine.
That is false, as even a cursory bit of researchabout intellectual property and the first sale doctrine will reveal.
If you are going to post comments about the law, learn the law.
The first sale doctrine allows a purchaser of a copyrighted work to resell that copyrighted work in its original form. Modifying it before reselling it violates the derivative works clause of US copyright law and is illegal. (This is why the Christian group that bought videotapes, edited out the "indecent" parts, then sold them again lost in court.)
When you buy a car, you own the car. When you buy OS X or any other program, you do not own it. You are not buying the software, and the software does not belong to you. You are buying a license to use the software, nothing more. Since you do not own the software, the only thing you can do is what the license you bought says you can do. The license is a legal contract; if the license says you can't modify the software, you can't.
Psystar is modifying OS X to let it run on their computers. This violates the law three ways. It violates the license, it violates the derivative works clause of US copyright law (Title 17, USC 103), and it violates the anti-circumvention clause of the DMCA (Title 17, USC 1201).
Before you post about your understanding of the law in a public forum, you might actually want to read the law first. I'm just sayin'.
There is no such thing as 'Apple Hardware"
Pystar is putting ATI graphics cards, Intel Processors, etc in their machines. Guess what graphics card and processor Apple puts in their machines?
By the way I wrote 3 articles about as well about month or two ago and one today.
Thanks for sharing !
http://www.livecrunch.com/2008/07/15/i-knew-it-was-comming-apple-suing-psystar/
1) This is a pure EULA issue - no copyrights of patents are being violated. IIRC, EULA's have never been tested in court, and vendors are extremely loathe to do so.
2) As stated in numerous places, First Sale Doctrine is a very big obstacle... Apple's lawyers will have to find a very novel way to overcome that obstacle.
The one and only angle I can see is a DMCA issue concerning the patches used to get OSX running on non-Apple hardware. But... if Psystar can prove that the patch is built from open-source components (Darwin and its boot-loader is open-source), then even that would have a very hard time floating in a courtroom.
/P
If Psystar sells the hardware and a sealed retail box of OS X along with perhaps instructions on how to sell it, are they liable at that point? They are only selling the components, not doing the work. The EULA would still be the responsibility of the end user who installs the OS. Sure, it's not as nice as having it all done for you, but for the price difference and ease of install that OS X has, I think it's a simple way out for Psystar, and not one Apple has a hope in the world of trying to combat.
EULAs have frequently been tested in court (both in the US and abroad) and many types of clauses have been struck down and others upheld.
2) The first sale doctrine doesn't apply here. For that to apply, Psystar would have had to purchase the software and then resell that same piece of software. In this particular complaint, they downloaded a software update, modified it, and distributed the modified version. US copyright law prohibits making a "derivative" work, as well as making copies.
The DMCA doesn't apply, nor did Apple invoke it. Apple's going on traditional copyright for which they have a very strong case with a large amount of case law in support. The DMCA would be too risky as it's untested, and the EULA is both more risky and far more difficult to try in court. Apple took so long because they waited for Psystar to hand them what they perceive to be a "slam-dunk". Were this Europe, I'd say Psystar could come up with a decent defense. In the USA, however, it's pretty cut-and-dry.
I hadn't considered the software update issue... but then again, software updates are not for-sale items, and I doubt that Psystar does much more than redistribute them minus those particular updates that contain bootloader patches. If they do, then they might have trouble there. I'd like to see the specific complaints concerning them, if any, before going beyond guessing on that bit of it.
"The DMCA would be too risky as it's untested, and the EULA is both more risky and far more difficult to try in court." - Agreed.
So what if Pystar went to Intel, ATI, etc, and used the same parts that Apple does? Does that present a problem, after all it is not like Apple designed the hardware. They buy off the shelf parts just like Dell or HP.
"Void" the license. Oh OK. If someone doesn't like the license then don't buy the product. It's not like these are the TOS to get into a federal building. Challenging the terms of the license as unfair or unconscionable or whatever is a complete waste of time. You're free to give them money for "legal defense" all you want, though.
The first sale doctrine does not apply to unauthorized copies, like the one PsyStar was selling. Once you break the license agreement, the copies you make are infringement (see WoW story out today).
- by sanenazok July 15, 2008 9:29 AM PDT
- Apple also needs to keep everything proprietary to maintain the "we're different/secure/whatever" marketing. If their systems had broad appeal, their security and other benefits would cease.
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- by Penguinisto July 15, 2008 9:36 AM PDT
- Actually, that isn't true as per security. The most secure commercial-strength OS out there is Open/FreeBSD. None of it is proprietary.
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Showing 1 of 3 pages (119 Comments)Security lies in the architecture and makeup of an OS - not its popularity or lack thereof.