Comments on: Psystar responds to Apple suit, will countersue

The maker of Mac clones says it plans to sue Apple under two federal laws designed to discourage monopolies and cartels.

[Kings X Rocks!]

Steve isn't going to be happy about this...

[Fil0403]

Well, with all the problems with the iPod Nano, MobileMe, and iPhone 3G, he's probably already used to not be happy with things (not to mention poor Apple customers, LOL).

[Prince2k3]

LOL that is stupid Psystar ... very stupid. You are hacking Apple software what makes you think you are going to win!

[Lerianis]

They aren't hacking anything, in all honesty. I have looked at the methods that they used to get the OSX working on this generic hardware, and it wasn't a 'hack'.... it was a piece of software that fools OSX into thinking that it is on Apple hardware.

Also, the DCMA specifically states that software can be hacked for 'interoperability purposes'.... which is all that Psystar is doing if there is any actual hacking involved.

[uhpl508]

I'm cheering for the underdog on this one.

[No Man]

"Psystar argues that its OpenComputer product is shipped with a fully licensed, unmodified copy of Mac OS X..."

Since the licensing of the Mac OS is specifically limited to its usage on Apple hardware, it is inherently impossible to ship a "fully licensed" copy of the Mac OS on non-Apple hardware. Pedraza doesn't have a clue what he's talking about. Like it or not, Apple's lawyers are going to thrash him.

[Penguinisto]

"Doctrine of First Sale", methinks. This invalidates the requirement that it be loaded on "Apple-branded hardware" in the EULA.

[skillingssucks]

...and you don't have a clue what he's saying. He's saying that some of the terms of that very license that you mentioned are restraints of free trade.

[No Man]

skillingssucks: The terms of Apple's EULA are binding until a court says they are not. Whether they are restraints on free trade are for the courts to decide in the days ahead. He cannot claim it is a fully licensed copy if he is currently in violation of the license, regardless of whether it is eventually invalidated. It was a stupid comment to make.

Penguinisto: Softman vs. Adobe found that the Doctrine of First Sale only applies to software if it is left unopened and the EULA is not agreed to. Once Psystar agreed to the EULA (as they had to when they preloaded the software) they were immediately bound by its terms.

[eddyr78]

I hope Apple does trash them. They say that they want to offer OSX to people that are willing to try OSX but that don't want to spend the money on apple hardware. But who ever gave them permission to put the os on their box and sell it. Yes They did buy the os and they do have the right to do whatever they want with the OS. but they cant just start selling OSX on an non apple computer. Thats were they messed up. Thats apples OS they made it. It's theirs and if you want OSX you have to buy their Hardware. Psystar Wants got get people to use OSX thats not up to them thats up to Apple. Computer companies have contracts with microsoft to put their OS in their machine. Apple made no deal with Psystar to do this. So what makes them think they have the right to and now wants to Sue Apple because they said you can't put their OS in your box and sell it.

[skillingssucks]

Quote: "skillingssucks: The terms of Apple's EULA are binding until a court says they are not."

And that is exactly why he's suing.

[extirpator]

The people who think the EULA protects Apples OS are missing the point that a software license can not impose monopolizing clauses such as restricting it to brand name hardware if it can be proven to run one non branded hardware. Psystar has a very valid position. For example what if a person who owned a Mac suddenly had that mac break? They have the right to use their os and software for it, and should be able to install it on any hardware they choose if the hardware can actually run the software. About the only thing Apple can legally do is refuse to help people who are using it on unbranded hardware.

[Penguinisto]

I'm on the fence on this one.

Personally, if Apple is selling the OS, I see no moral (and IMHO legal) problems whatsoever with someone taking their retail purchase and installing it onto whatever hardware they desire (so long as they don't depend on Apple for support). I myself have a home-build Hackintosh running at home - and I expect zero assistance from Apple for it in either support and/or maintenance (now my dual G5 OTOH is fully covered under AppleCare).

Now someone doing this commercially? Not so sure about. Props to them if they can do it, but they alone have to support their products as fully as Apple would for an official Apple machine.

While Apple's business model wasn't built for doing so, it would be pretty cool to see OEM-geared versions of OSX. My Hackintosh runs flawlessly. I have had zero problems with it, and it has already been put through some serious paces (I recently replaced the mobo/CPU with a Core Duo, so no more SSE3 emulation and therefore I get to run it at full speed). Given this, I know that OSX can and does run just fine on the right non-Apple equipment.

As a bonus, if Dell and HP ever got permission and decided to sell OSX pre-loads, I think Microsoft would be in deep kimchi in less than six months (they'd still have business sales, but they'd pretty much lose the consumer market in no time flat).

/P

[Vegaman_Dan]

Apples claim is that they are only selling OS updates- they have never sold the OS separate of the hardware it shipped on originally. That could be a dangerous distinction for them. As a result of this court case, they may have to make the OS updates only available online or through some verification process to absolutely ensure that you are only installing the OS on the hardware it shipped with. That means maintaining a database of who owns what equipment. If the system is sold by that end user, the records would have to be updated accordingly or do something to prevent the new owner from being able to install the updates.

It's a nasty situation and I really think Apple may have some trouble here. The legal firm representing Psystar has had suceess in the past against Apple for this sort of thing. They know what they are doing. I'm curious how a hole in the wall white box OEM is suddenly backed by all this money. It's not cheap to go after Apple. Even more so to thumb your nose at them openly and keep in business.

Psystar doesn't have to support the product except for the hardware. The OS is up to the end user. Just because you buy a Psystar unit that has a sealed copy of OS X included doesn't mean you are forced to install it. That gets them out of having to support it at all.

I just don't know about this one. I'm really curious why Apple simply hasn't bought the company out and shut them down. It would be cheaper than the bad press is going to cost them as a result. If Psystar wins, then the consequences of the EULA being nullified could have even larger impact on the industry.

[m.meister]

I think people see a box and think it is a retail copy. But a requirement on the box is that you MUST have a Mac. I think it could be reasonably argued that the retail copies are actually upgrade copies (just like when you buy the upgrade version of Vista or Adobe's CS3). Every Mac (that can run Leopard) came with some version of OS X.

I have doubts as to whether or not Psystar will prevail. They are not only buying upgrade licenses, they are modifying them and reselling them. Also, they are benefiting from the use of Apple trademarks and damaging the reputation of Apple by putting out substandard products that some may think Apple has endorsed (because it runs OS X).

If somehow Apple loses this battle, expect Apple to shift to a tech war. They'll start doing stuff to make sure the OS only runs on their hardware and the like.

I see the consumers as the losers in that scenario. Apple has been fairly lenient because its focus is on selling the hardware. A 5-user family pack can be had for $155. I'd expect that to change. I'd expect some sort of activation tech to get setup. It ain't gonna be nice. Sure the hackers will figure out a way to make it work, so the only ones suffering are the regular folk.

In other words, a small handful of people want to ruin it for everybody else.

[Penguinisto]

@Dan: Psystar does the installs as well, which means they perform a labor that would normally be considered as a supported item. They wouldn;t have to support OSX itself, but they would have to support their actions in installing OSX (including patches).

Finally, most EULAs (including Apple's) have separability clauses the prevent one invalidated piece of it from invalidating the entire EULA. Just as if Microsoft suddenly had a bit of theirs ruled as invalid, doesn't suddenly mean you can pirate the crap out of Windows.

@m.meister: As long as attributions are plainly and prominently stated, Psystar is not violating Apple's trademark - they are not instilling any confusion between their product (the computer) and the OS (which is Apple's). I could be wrong on that, but it would be hard for Apple to claim it, I think.

Claiming them as upgrade copies only would require the disks to check the existing HDD's for an existing copy of OSX. I know for certain that Apple already employs similar methods (I remember when a buddy of mine thrashed the HDD on his G5 iMac, and when I lent him my dual G5 10.3 restore DVD's to do a re-install, the setup app simply told him that the DVDs weren't authorized for that configuration). So no, the argument that "it's only an upgrade" doesn't fly in this case.

They probably force those checks in every copy they sell, but seriously - it's a simple matter of replacing the TPM checks with a patch that bypasses them. That's how Psystar gets around the checks now, and the legal argument is that the TPM checks are what qualifies as "restraint of trade". It all doubles back to that.

Online-only? No way that'll happen... the first user to have a failed or trashed HDD would scream bloody murder.

Also, Apple is still out-selling pretty much the entire planet and is growing by leaps and bounds, so I don't really see them as wanting to disturb that growth.

[tacit]

"Personally, if Apple is selling the OS, ..."

That's the rub.

Apple *NEVER* sells the OS. Neither does Microsoft. You can not buy Windows or Mac OS X.

When you buy a CD in a computer store, you are NOT buying the operating system and it does NOT belong to you. What you have purchased is a LICENSE. That's it. The operating system is still the property of the company that made it.

Almost all computer software is handled that way. You do not buy computer software. If you go into a store and pay money for Microsoft Office or Parallels or Adobe Photoshop or other commercial software, you do not own it; you are only buying a license. A license is a limited right to use the program, but you buy that license on the specific (and legally binding) agreement that the software does not belong to you.

You know those licensing agreements you see when you run a program's installer? The ones where oyu just click "OK, OK, OK, next, next, next" without reading? Those are a contract. They say, specifically and in detail, that by clicking "install" you agree that you do not own the software and it does not belong to you. They say that by clicking "install" you agree that the license is a legal contract, and that your right to use the software is instantly terminated, with no refund, if you break any of the licensing agreements.

You may not like it, you may not agree with it, but that's the way it is. If you pay money for Mac OS X, you are not the owner and you have not bought the operating system. You are bound by the licensing agreement, and if you violate it, you no longer have the legal right to use it.

[Penguinisto]

minor semantic bit - meant "selling the installation" and "reselling the OS" (or license, same-same - you can resell the OS install disks and the license that came with them under Doctrine of First Sale).

[eddyr78]

Yes Psystar bought the OS and they could put it on any machine they want But they can't take an OS thats not theirs and start selling them in none Apple computers. And If you put OSX in every pc out there Apple would lose profit because they make their profit in hardware not software. Everyone would but a $500 pc with OSX and not an apple machine.

[extirpator]

@ Eddyr DIng, ding, ding! Congratulations on summarizing the concept of anti-competitive behavior, and why Apple is trying to monopolize their product. The only way Apple can stop people from running OSX on non Apple hardware is to make the hardware proprietary; however, Apple went down that road, and realized they made more profit using more or less generic hardware. The catch is that in doing so they open them selves up to generic apple clones such as psystar.

It is illegal to to force a consumer to purchase branded hardware if there is a generic equivalent option; however, that is exactly what Apple is trying to do with their EULA. People who say that the OS X DVD's are upgrades are only looking at one side of the picture. If you already own a Mac with OS X and suddenly your Mac dies (out of warranty), do you have to buy a new official Mac to use your os now? Technically this is like having your battery charger for your Canon camcorder die, and being told you can only use another unit from Canon even though there is a half priced generic charger available.

There are also many people here who think that a person doesn't own the software, they just license it like a lease. This is 100% incorrect. Software licenses are their to help protect the developers intellectual properties. They dictate how the software may or may not be modified so another company can't copy their code and resell it as their own. It also tells you how many computers you can install the software on to identify after which point it would be considered piracy. A software license can also specify what operating systems, hardware and software are needed in order for it to function properly; however, this is to inform the consumer as what they will need, and also to protect the developer from problems that could occur if the software is not installed on an appropriate system. As you can see none of these things are lease like in nature. If they were then you would have to return your software after you were done using it, and there are some pieces of software that literally are leased. Think about it, when was the last time you ever had to return an operating system or any other piece of software?

[Earl Benzar]

Sherman anti-trust act? Good luck with that. These guys at Psystar must be Psycho. Apple owns a small, small percentage of the PC market, so how Psystar claims "monopoly" in that reality is interesting. Even claiming Apple as a monopoly is the Mac ecosystem is a joke because a software maker, who is the copyright owner, has a right to control licensing.

[Lerianis]

Even if you have a small percentage of the market, you can still be whacked on the anti-competitive practices part of the Sherman Anti-Trust Act. There have been MANY small companies who are 'niche' markets that have been sued under that law and punished under that law.

[eddyr78]

Apple's been offering their OS in their machines for years and now a stupid company like this that hasn't been around not even a year claims Monopoly because apple doesn't let them have the os in their machines. Who ever gave them the right to sell OSX outside of an apple machine in the first place. OSX is Apples software and they have the right to do whatever they want with it. If you have to buy a mac to have osx thats how it is then its their software

[why do i need a name?]

Interesting twist under the Sherman act.

I'm pretty sure that if you look back you will find that Kodak was sued under the same concept when they were in the copier business. Their lease arrangements and service contracts required that toner be purchased only from Kodak, which shut out the low-cost toner manufacturers. The results were that the courts found that this was an anti-competitive practice and that it had to be stopped.

The notion of a tie between the hardware and software is an interesting one. Never been tested, and probably a very long road for Pystar since Apple has hoardes of cash to spend on legal fees and Pystar doesn't. If they have the staying power, this is going to be an interesting one to watch.

[oneoclock]

The comparison with Kodak is silly because toner is not copyrighted material. Apple's product in question here is software, that is copyrighted material, not a physical product. The rules for copyrighted material are different. Copyright holders have the right to restrict how their copyrighted material can be used and who gets to distribute copies. Manufacturers of physical products do not have such rights.

Also, do you think the movie and recording industry would stand by idle and allow the control of copyright holders to be eroded? If Apple lose this case, the movie and recording industry would spend billions of dollars to lobby congress to change the law so they regain control of copyrighted material in the way they do now. Apple is a copyright holder in respect of MacOS X and so they will get the same rights that the recording companies have in respect of copyrighted material. Like it or not, but that's just the way it is.

[ittesi259]

The difference here is Apple is not saying "You must buy only our software.....resistance is futile". Now that Intel processors are used I can run a number of OSes. I can remove the Mac OS if I want. Thats not a monopoly. There's no law that requires you to allow others to sell your intellectual propoerty. Also, in this case Pystar is attempting to profit and the bait is someone elses product, not their own....thats just shady. Apple doesn't license to OEMs, they can clearly state it can be authorized on fully Apple hardware. And considering Macs are a small percentage of the market.....you so have no case of monopolies.

[why do i need a name?]

oh, yes, but they are saying that if you buy our software, you must buy our hardware (a tie that is potentially illegal under the the US antri trust laws)

But you are right that Apple does not have a monopoly and in fact can point that they are a small percentage of the market.

That said, Kodak's share of the plain paper copy market probably never got above 10% either, so give that precedent this may be trouble

like I said, this is going to be interesting to watch!

[Penguinisto]

@why...

Actually, Apple does not make that claim. They happily sell boxed copies of OSX without requiring you to buy hardware, or to prove that you own a Mac. Therefore your argument doesn't get very far at all, sorry.

[Marbux]

Section 2 of the Sherman Act deals with monopolies and attempted monopolization. Section 1, however, applies to restraints of trade without regard to monopoly status. Also, monopoly status under Section 2 depends on how the market is defined by the court. E.g., if the market is defined as operating systems running on Intel x86-compatible processors (as in the Microsoft case), Apple would not have monopoly status. But if it is defined as operating systems running on Mac-compatible hardware, Apple probably does have monopoly status. Apple's EULA works against it on that issue. I'm not saying that PsyStar will or should win, but I don't see any basis for describing the counterclaims as frivolous at this stage. We haven't seen them yet..

[theveggiedude]

This is rubbish. What next? Allow any company to make a PlayStation clone? An X-Box clone? It will never happen. This lawsuit should be thrown out immediately as frivolous.

[pjhenry1216]

Emulators are out there for various platforms. Even so, there's still a difference. The hardware setup is patented. If you can get the software to run on something else, go for it, however, I doubt you will as the software can't just run on any generic hardware like Apple. The software is made specific to that hardware. So, you'd have to duplicate the hardware and therefore violate patents.

[phess11]

You might want to talk to IBM. They said you couldn't clone a PC either.

[Fherghaile]

Buying a copy of OS X doesn't give the buyer the right to use OS X for any purpose they want, Apple sells a license not the total rights to use as the buyer wants. Try the same thing as Psystar is doing with Microsoft or any of the big software manufactures and see how long before they hold you upside down, shake the hell out of you, and empty your pockets, wallet, and check book, they will also remove your first born and sell them into slavery. After you are reduced to poverty, they will nail your pee pee to a stump, push you off backwards and shoot you for limping. My advise to Psystar is to run away and hide out on Mars.

[Penguinisto]

Actually, thanks to Fair Use, it does. So long as you don't pass copies of it around (e.g. outright copyright infringement), a user can do whatever he or she wants with a purchased product.

[SeizeCTRL]

Microsoft doesn't care what kind of hardware I install Windows on. They aren't going to sue me because I am not using a Microsoft branded keyboard, mouse etc.

[oneoclock]

@ Penguinisto

you are wrong, fair use does not apply to resellers, only to end users.

[pjhenry1216]

I say more power to PsyStar. Just as people should be allowed to play their music on whatever hardware is physically capable, so to should they be able to do with their OSes. I'm sure people would be upset if music cd's released by Sony BMG only played on licensed players, people would be upset.

[SeizeCTRL]

Exactly! My opinion as well.

[digiguy23]

You have choices buddy. Live with it!

[ajgash]

I have to totally disagree with this statement. Yes, once you buy an OS you should surely be able to do anything that YOU want with it, but that doesn't give you permission to sell it. Using your CD analogy - no, you should not be limited to playing Sony BMG music only in licensed players - or if there are licensed players and you can figure out how to get those CDs to play on another machine that is was not originally intended for, then fine. However, it is illegal to then go out and sell that machine with the CD in it as your own product if Sony prohibits the resale of its CD. Selling the machine is not the problem - it's the fact that with it you're selling a product that is not yours to sell: in this case, the Apple OS.

[eddyr78]

You don't understand yes they don't have to run the OS on apple hardware once they bought the os. But they don't have the right to sell the OS as their own on non apple hardware. They are making a profit off someone else OS without permission. Other Computer companies sell their systems with Windows because they have a license Agreement with Microsoft to do so. But Psystar doesn't have any agreement with Apple to do so.

[rapier1]

eddyr78 et al...
Its my understand that PsyStar is still buying the copies of OS X as a reseller. They then sell the copy of OS X to the customer who then contracts PsyStar to install OS X on the machine PsyStar also sells. So they aren't selling OS X as their own OS. They aren't stealing the software. Its sort of like if I hired a consultant to make a hackintosh for me. I, the end consumer, bought the software. I bought the hardware. I'm just having the consultant put them together for me.

[shynes]

If the link to Apple hardware in Apple's EULA is illegal, it is null and void. This is the point.

Steve Hynes

[Perry_Clease]

"by the person with no name? August 26, 2008 1:23 PM PDT
oh, yes, but they are saying that if you buy our software, you must buy our hardware (a tie that is potentially illegal under the the US antri trust laws) "

When I bought Leopard I already had Mac and it was my understanding that I was buying an "upgrade" to existing OSX license. Now maybe Apple should have been more clear on that.

Whatever, I hope that Psystar loses both cases.

[eddyr78]

The problem is that If you buy OSX you can put it in any machine you want yes it doesn't have to be apple hardware. But you don't have the right to sell it like they are doing. Other computer companies have a license agreement with Microsoft to ship their hardware with windows installed in it. But Psystar is selling an OS thats not theirs as their own. They never had any agreement with Apple to do this. Thats apples software Not psystar, they don't have the right to sell someone else's OS without any agreement.

[phess11]

You might want to talk to IBM. They said you couldn't clone a PC either.

[digiguy23]

IBM wanted a monopoly, Apple doesn't.

[rapier1]

As far as I remember, that's not true at all. The hardware specifications for the PC were all open standards - its partly how IBM was able to roll out the first PCs so quickly - they used OTS tech instead of handrolled. They did get hit with an anti-competitive lawsuit but it centered around their mains and minis not the PCs.

[doanle7]

Psystar are not hacking MacOS (please READ) the arcticle properly! I am for Psystar if they win.. I like Mac OS, but not to pay for their hardware design, which is not specific to Mac OS at all.

[Penguinisto]

They do have to patch the OSX ISO file in order to bypass the TPM hardware checks, so yes, they are "hacking" the OS.

The rub lies in the fact that OSX is, at its core, an open-source product (see also Darwin).

[tacit]

Read the article very, very, very carefully.

Psystar is providing an unmodified copy of OS X. That is the truth. The unmodified copy is the copy on the DVD inside the box.

The copy on the hard disk is hacked. You can not put an Apple installer disc in a Psystar computer and install it. It will not work. You have to take the files off the disc, modify them, and disable the hardware checks. That is why Psystar tells you in fine print not to re-install Mac OS X by yourself; because that unmodified copy of OS X they supplied to you will not work on their computer without being modified.

[eddyr78]

Yeah they are not hacking it but thats not their OS to begin with. They cant take someone else's OS and sell it as their own. They don't have any License agreement with apple to do this. Its Apple's OS and if you want it you have to buy their Hardware. And Osx is not going to run to its full advantage on non apple hardware , why because Apple hand picks the hardware to work perfectly with the software.

[ubnyan]

Psystar is on a collision course against Apple and have no real excuse to defend themselves for selling someone else's intellectual property without authorization. Are Psystar customers supposed to call Psytar for OS support or would they redirect their calls to Apple? They are already hacking the os by using other methods to make the OS run on a regular pc. I agree there could be other "alternatives" as Predaza indicates, but not without prior authorization and legal matters taken care of. It will interesting to see what develops from this lawsuits againts each other though.

[sanenazok]

Well it'll be worth a shot but sounds like some lawyer wants to get some billable hours in. If the counterclaims get beyond SJ I would be extremely surprised. Good for Psystar, better they pay the lawyers than someone else.

[limefan913]

The only possible hitch is the bundling, and honestly I don't think it's a very solid argument. In what market to they have a monopoly? The Mac OS X market? Of course, they own the IP, they can do what they want with it. It's not bundling, it's a package. Just like how Verizon forces every phone to use their software, or how Texas Instrument's forces everyone to use their software.

It's a house of a cards argument, and I wish them the best of luck.

[ReVeLaTeD]

Two sides:

1: Psystar will lose for the same reason iPod/iTunes are popular: there's nothing prohibiting a company from creating software that will only work on one machine, accessible only from them. Otherwise we'd never have had arcade rooms, video slot machines, etc etc etc. IT may not be smart business, but unfortunately it's their right. The customer isn't forced to buy Apple products; they choose to, and in doing so, are agreeing to be subject to what Apple wants.

2: Apple has a problem. By not even entertaining the option of another machine and selling the OS separately, they're sending a message that conflicts with the general public: that a machine is a machine is a machine. It wasn't like that in the old days of IBM, but now the Mac is little different from your standard PC, which puts them at a disadvantage. It reminds me of the GSM locked cell phone issue in some ways.

All said, I hope Psystar wins on merit. If they cater their case around the fact that PCs and Macs, at the core, are the exact same in specification, they could win this one. If they focus on that, Apple can't say anything to save their case, because they'd be branded anticompetitive by default. Of course the settlement would just be an adjustment of the EULA to remove that hardware clause, but that'd be a significant win for the little guy. I know I would absolutely grab a copy of Apple OS if I knew it was unchained.

[SeizeCTRL]

If I could install OS X on a standard PC that I built, I would definitely pick up a copy just for that. I have a G4 and an iMac, but really have no intention of buying another Mac because I am perfectly happy with Ubuntu and Vista. My game box is Vista and I have installed Ubuntu on my old laptop and what is now my main PC.

[nickj1088]

I think Apple has had this coming, and I think that OS X is only the beginning. The iPhone should have a slew coming its way as well. The stranglehold they have had on their hardware and software is becoming increasingly annoying, and the open source community is honestly a very dangerous one to **** off. Many of the lawsuits filed against Microsoft the past 10 years are looking very relevant against Apple, and if Psystar has any success expect more of the same.

[protagonistic]

Hey, if you don't like the way Apple operates don't buy any Apple products. SJ is not standing there with a gun to your head forcing you into anything. It is their HW and SW so they have every right to control it.

[nickj1088]

Then why should Microsoft be brought up on an antitrust case? Why not let companies have complete control over everything no matter the cost to consumers? Take economics dude. I don't like the way Apple operates but I like their products, so why not campaign to force the way they do business.