Comments on: Questions swirl around Mac clone maker Psystar

The Mac world is playing detective this week, trying to track down more information about the mysterious company selling Mac OS computers without a license.

[chuckjuhl]

Get real.

If Apple considers the OS and hardware "integral" then they shouldn't sell stand alone copies of OS-X. That simple. If they want to control integration, then Apple should put the OS in firmware on the hardware. That argument is spurious anyway, as Apple certainly places no restrictions on what OS that you can run on Apple hardware.

EULA's are works of legal fiction. Can EMI tell me I can't play my music that I "license" from their artists on a Sony DVD player?

Psystar could provide the computer industry with a valuable service - that being to finally mount a legal challenge to the whole concept of EULA's - especially the shrink-wrap EULA's where the terms are not fully disclosed until the package is opened, thereby rendering it unreturnable.

Given prior precident and indications from other court cases, it is almost certain that EULA's will be found to be unenforceable.

Think about it. To hold otherwise would open the door for absurd results - like the EMI-Sony example above. Or even an EULA where MGM movies could not be played on Toshiba DVD players.

Even where the law is ambiguos and may appear to allow a result, Court's will generally avoif that result if it will lead to such absurdities.

In the past, software makers have generally gone out of their way to avoid or thwart legal challenges to EULA's. They are well aware of the very shaky kegal ground those "licenses" are on.

The time has come to put the issue of EULA's to rest, and Phystar is an excellent case to litigate the issue.

[SAFD1450]

Some info for the idiots!

Apple does consider its OS an integral part of the Mac
experience, thats why they don.t sell OS's they sell UPDATES to
the OS included with the Mac when you buy it. There is a big
difference. It would be comparable to Microsoft selling a major
update to the xbox 360 OS. Mac gives free minor updates and
charges for major updates. Here is the Main page for leopard
straight from Apple.

Grab a front-row seat for a walkthrough of the top attractions in
Mac OS X Leopard. See how the biggest system update in Mac
history can help you love your Mac even more.

Also some more reading for you since you seemed to be very
well..... uh misinformed.

The law of contracts is the law of promises. Long before
computers were invented, people were making promises. At
some point, the law had to designate which promises it would
enforce and which promises it would let slide. The former are
called "contracts." That is, a contract is simply a legally
enforceable promise.

To have a contract, you have to meet certain elements. I refer to
the terminology of my professor and renown expert, John E.
Murray, Jr., author of Murray on Contracts, a first year law
student's bible on the matter. To have a contract, you must have
1) an offer, 2) an acceptance and 3) a validation device, most
often, consideration.

The offer and acceptance parts are quite simple the vast
majority of the time. Usually one party says "I will provide you
with X if you provide me with Y," which qualifies as an offer. The
other party says "I agree" and the deal is done. Consideration is
sometimes a little bit tricky, but in order for a contract to be
valid, there must be a bargained for exchange. Lack of
consideration is why gift promises, even in writing, are not
enforced. I say "I agree to give you $100 because I love you." We
put it in writing signed by 10 nuns, each of which testify that I
fully intended to give you $100. That is not a contract because
there was no bargained for exchange of value. Promises to make
gifts are simply not a type of promise that the law chooses to
enforce.

Ok, so lets look at the typical EULA to see if it's a contract. The
gaming company makes you and offer to play the game. In
exchange for playing the game, you must agree to pay a fee
each month and follow the EULA. That is the offer. You accept
the offer by clicking "I Agree" when you log in. You technically
do not need to do it each time that you log in, but most
companies do this simply to remind the consumer that it is
bound by the agreement (and to provide notice of any
modifications). The promise is supported by consideration,
namely the company permits you access to the service, and you
pay the fees.

Tada, contract! So, what is all the fuss about? Well, you see there
is good reason for confusion.

When software companies first started, it was easy. They had a
product that they made. They wanted to license it to someone
else to use, so they drew up an agreement, and said "sign on the
dotted line." Those were the early EULAs and they were no doubt
enforceable. But then software companies wanted to make its
product easy to buy, so they threw it in a shiny box and popped
it on a shelf. They certainly couldn't ask the clerk behind the
counter to execute contracts for them, so they simply tucked it
inside the shrink wrap and included "acceptance language"
stating "by opening this box, you agree to these terms."

Wow, now wait a minute here?!? There is something messed up
with the timing of the whole thing. It doesn't jive with standard
contract formation process. So, I pay the fee, get the thing that I
paid for home, open the box, and accept the offer before I see
it? Hmm. Well that didn't make much sense, and judges weren't
really familiar with how this whole thing worked, so cases came
down that said these types of agreements, shrink-wrap "EULAs,"
are not enforceable. They aren't enforceable because they do not
meet the elements of a contract.

But wait again! Some smart guy decides "this is great" and he
goes and buys a piece of software that contains something like a
telephone directory of the entire United States. He rips the
contents off the CD and makes his own CD that does the same
thing, and competes with the original company. The original
company says "we will see about that" and the ProCD case is
born. In that case the court determined that EULAs are
enforceable because everyone knows what's in them, and
everyone reasonably should expect to be bound by certain terms
and conditions. Later cases came out, however that said EULAs
are a special kind of contract that comes with certain
restrictions. Companies that use EULAs must make sure they are
"reasonable." There is a lot of case law defining what is
reasonable. Some particularly hot topics are "choice of forum
clauses," "indemnification provisions" and "liquidated damages
provisions." All of these fall into the "it depends category." So, if
you call a lawyer right now and say, are EULAs enforceable, he
will likely get into the above and his final answer would be "it
depends, but in some cases the only way to tell is to go to
court."

Don't stop reading now! If you were paying attention above, you
should have a few questions. Do you remember way at the top
when I talked about how the first EULAs operated, via the
traditional contract process in signed agreements. Well, does
that exchange sound familiar to you? Of course it does. It is
exactly what happens when you log in to play a mmog. You are
presented with an EULA (more appropriately called a Terms of
Service Agreement) before you pay for the service. You are
alerted to the fact that the game is an online game subject to
having a subscription on the outside of the box (which,
incidentally, have been enforced even when the inclusive shrink
wrap EULAs were not).

What does all of this mean? Well, I am sure you're bored by now,
so I will summarize. If you ask an attorney about EULAs, he or
she will likely say "they are enforceable, but there are some
caveats." If you ask him about a terms of service agreement that
you "sign" by clicking "I agree" each time you log into a service,
he will likely say "that sounds pretty good to me." He will be
right on both accounts. So, once again, true shrink wrap EULAs
have been tested in most major jurisdictions and are valid
contracts, subject to certain limitations. Terms of Service
contracts, like the "EULA" found in MMOGs, are simply
enforceable. There is a common perception that EULAs have not
been tested in court. This is incorrect. They have been. In fact,
very recently Blizzard's EULA was enforced in two separate cases
and relief was granted based on the EULA's terms.

"EULAs" for mmogs meet the elements of contract formation, so
even absent case law (which there is), they are the type of
promise that we call a contract.

Does this solve the issue regarding virtual profiteers? Not
entirely. It is not meant to. I simply want to clarify some
misconceptions about EULAs themselves, and not any of the
terms therein."

[Gromit801]

I Wonder How Long

How long will it take for the Florida State Attorney General's office
to get involved here.

[aacrabtree]

Here's the thing...

To all of those arguing that if you buy a copy of software, you
own it, or saying that you shouldn't have to abide by an EULA if
you buy that software are missing one very big thing. Apple (or
any other company issuing an EULA) tells you before you
buy it what the terms are of your use. And that by
purchasing and using that software, you agree to those terms of
use.

And to the commenter who said that if the OS and hardware are
integral, Apple shouldn't sell stand alone copies of the OS,
you're missing something. USED APPLE COMPUTERS! When I
bought my PowerMac G4, I bought it from a University Surplus
store. It had no Operating System on it. So what was I to do, just
give up on it? NO! I went out and bought Tiger for it! And I can
guarantee that I'm not the only person in the world who does
this.

And if you think that the fact that it's an Apple computer means
it should have OS X on it no matter what means you don't
understand what a software license is. When you buy a new
Apple computer, you are buying: 1) the computer itself, and any
other peripherals that accompany it, and 2) a non-transferrable
single user license to use OS X. When I bought my PM, I paid the
surplus store for the hardware to run it on, but they did not
have the rights to sell me the license to run OS X on it. So I had
to go out and purchase those myself by buying a "copy" of OS X.

Here's the heart of the matter folks. If you don't agree with the
software license of a product, then you don't buy it. If you buy it,
then you are agreeing to the terms and conditions stated in the
license agreement. If you, for commercial gain, violate the
license agreement, then you are subject to legal action from the
software owner.

It's kind of like this. When you get a driver's license, you are not
being given the right to drive however you'd like. You are given
the right to drive under the licensing terms. If you don't agree
with those terms, you don't drive. If you violate those terms, you
are subject to penalization as dictated by the license agreement.

It's not just about Intellectual Property. It's about you, by
purchasing the product, agreeing to an end user (that's you)
license agreement. That's a contract. Just like if you click a
check-box online saying you agree to a websites terms and
conditions. And if you violate them, you will be penalized as
dictated in the agreement. Just because you don't sign
something, doesn't mean you didn't agree to the terms. Your
ownership of the license is better proof of your agreement to the
terms than a signature could ever be.

Please, please, please people, before you spout off your
opinions about Intellectual Property laws, do some research.
Because doing something as simple as reading the EULA on a
product tells you exactly what the agreement is, and how you
agree to those terms. And on a lot of them, your agreement is
shown simply by you purchasing or using or installing said
Intellectual Property.

[aacrabtree]

Oh, and by the way

Here's the part in Leopard's EULA that backs up what I just said.
It's in all capital letters, at the very beginning of the license
agreement. You can't miss it.

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE")
CAREFULLY BEFORE USING THE APPLE SOFTWARE. BY USING THE
APPLE SOFTWARE, YOU ARE
AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU
DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE
THE SOFTWARE. IF YOU DO NOT
AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE
APPLE SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT FOR
A REFUND. IF THE APPLE
SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK
"DISAGREE/DECLINE"

[The_Decider]

EULA's are not necessarily binding

There is not enough case law on this downright shortsighted and stupid attempt to get around fair use and other provisions of actual law.

[chuckjuhl]

Unlikely that OSX EULA is enforcable on this issue.

The legality of EULA's in general is very questionable. Most court's that have touched on the issue (or similar issues) have been inclined to comment that they are not - at least concerning provisions that restrict how and where users use the products. Just because there is language in a EULA that restricts the user's rights, does not make that language legal.

Psystar appears to be in the right on this issue, if past cases in proprty law govern. That is very likely the reason that Apple has not been willing to directly challenge a small company like Psystar on the issue.

Apple has never once in it's past failed to immeditely and aggressively attack any alleged infringement, no matter how slight - even to the point of closing down blogsites for alleged "leaking" of internal company information.

If Apple believed that their EULA was defensible in this case, they most certainly would have acted by now with a Cease and Desist and Preliminary Restraining Order - as has been their practice involving other issues, and as would any responsible company would if their position had merit.

However, given the very questionable legality of the significant parts of the OSX EULA, I doubt very seriously if Apple wants to defend the OSX EULA before a federal court.

From a legal perspective, I fail to see where Apple has an actionable claim. There is no actionable infringement on any of Apple's property rights. At most, the EULA allows Apple to refuse to support OSX on any hardware but Apple hardware, and to allow Apple to modify OSX so that future versions cannot run on non-Apple hardware. But if Psystar merely facilitates the end user to install legally purchased copies of OSX on non-Apple hardware, there is no infringement on Apple's property rights. And since the EULA aplies to the END USER, legally Psystar is not legally obligated to comply with the EULA at all. That is an issue between Apple and the end user. And as previously stated, Apple's remedies for the end user's violation of the EULA are very limited. The provision in question is not a statutory protected property right like copyright infringement (which needs no EULA to protect anyway).

In short, it will be very difficult, if not impossible, for Apple to find a cause of action to bring against Psystar.

Again, if Apple believed they had a viable cause of action, they would have a planeload of lawyers on their way to Miami already.

[eichelman2]

Freedom?

It seems Micorsoft Windows won the PC wars 20 years ago, despite being an inferior OS, to Apple, simply because it was available on generic PCs, not tied to the vendor.

Perhaps if Apple OS becomes available on generic PCs, we will finally see some real competition and user benefit.

But perhaps its too late, as Windows seems to be dying of self strangulation (code bloat) with Unix waiting to carry forward.

[SAFD1450]

I beg to differ

This is from an article written by a professor at Harvard Law

The law of contracts is the law of promises. Long before
computers were invented, people were making promises. At
some point, the law had to designate which promises it would
enforce and which promises it would let slide. The former are
called "contracts." That is, a contract is simply a legally
enforceable promise.

To have a contract, you have to meet certain elements. I refer to
the terminology of my professor and renown expert, John E.
Murray, Jr., author of Murray on Contracts, a first year law
student's bible on the matter. To have a contract, you must have
1) an offer, 2) an acceptance and 3) a validation device, most
often, consideration.

The offer and acceptance parts are quite simple the vast
majority of the time. Usually one party says "I will provide you
with X if you provide me with Y," which qualifies as an offer. The
other party says "I agree" and the deal is done. Consideration is
sometimes a little bit tricky, but in order for a contract to be
valid, there must be a bargained for exchange. Lack of
consideration is why gift promises, even in writing, are not
enforced. I say "I agree to give you $100 because I love you." We
put it in writing signed by 10 nuns, each of which testify that I
fully intended to give you $100. That is not a contract because
there was no bargained for exchange of value. Promises to make
gifts are simply not a type of promise that the law chooses to
enforce.

Ok, so lets look at the typical EULA to see if it's a contract. The
gaming company makes you and offer to play the game. In
exchange for playing the game, you must agree to pay a fee
each month and follow the EULA. That is the offer. You accept
the offer by clicking "I Agree" when you log in. You technically
do not need to do it each time that you log in, but most
companies do this simply to remind the consumer that it is
bound by the agreement (and to provide notice of any
modifications). The promise is supported by consideration,
namely the company permits you access to the service, and you
pay the fees.

Tada, contract! So, what is all the fuss about? Well, you see there
is good reason for confusion.

When software companies first started, it was easy. They had a
product that they made. They wanted to license it to someone
else to use, so they drew up an agreement, and said "sign on the
dotted line." Those were the early EULAs and they were no doubt
enforceable. But then software companies wanted to make its
product easy to buy, so they threw it in a shiny box and popped
it on a shelf. They certainly couldn't ask the clerk behind the
counter to execute contracts for them, so they simply tucked it
inside the shrink wrap and included "acceptance language"
stating "by opening this box, you agree to these terms."

Wow, now wait a minute here?!? There is something messed up
with the timing of the whole thing. It doesn't jive with standard
contract formation process. So, I pay the fee, get the thing that I
paid for home, open the box, and accept the offer before I see
it? Hmm. Well that didn't make much sense, and judges weren't
really familiar with how this whole thing worked, so cases came
down that said these types of agreements, shrink-wrap "EULAs,"
are not enforceable. They aren't enforceable because they do not
meet the elements of a contract.

But wait again! Some smart guy decides "this is great" and he
goes and buys a piece of software that contains something like a
telephone directory of the entire United States. He rips the
contents off the CD and makes his own CD that does the same
thing, and competes with the original company. The original
company says "we will see about that" and the ProCD case is
born. In that case the court determined that EULAs are
enforceable because everyone knows what's in them, and
everyone reasonably should expect to be bound by certain terms
and conditions. Later cases came out, however that said EULAs
are a special kind of contract that comes with certain
restrictions. Companies that use EULAs must make sure they are
"reasonable." There is a lot of case law defining what is
reasonable. Some particularly hot topics are "choice of forum
clauses," "indemnification provisions" and "liquidated damages
provisions." All of these fall into the "it depends category." So, if
you call a lawyer right now and say, are EULAs enforceable, he
will likely get into the above and his final answer would be "it
depends, but in some cases the only way to tell is to go to
court."

Don't stop reading now! If you were paying attention above, you
should have a few questions. Do you remember way at the top
when I talked about how the first EULAs operated, via the
traditional contract process in signed agreements. Well, does
that exchange sound familiar to you? Of course it does. It is
exactly what happens when you log in to play a mmog. You are
presented with an EULA (more appropriately called a Terms of
Service Agreement) before you pay for the service. You are
alerted to the fact that the game is an online game subject to
having a subscription on the outside of the box (which,
incidentally, have been enforced even when the inclusive shrink
wrap EULAs were not).

What does all of this mean? Well, I am sure you're bored by now,
so I will summarize. If you ask an attorney about EULAs, he or
she will likely say "they are enforceable, but there are some
caveats." If you ask him about a terms of service agreement that
you "sign" by clicking "I agree" each time you log into a service,
he will likely say "that sounds pretty good to me." He will be
right on both accounts. So, once again, true shrink wrap EULAs
have been tested in most major jurisdictions and are valid
contracts, subject to certain limitations. Terms of Service
contracts, like the "EULA" found in MMOGs, are simply
enforceable. There is a common perception that EULAs have not
been tested in court. This is incorrect. They have been. In fact,
very recently Blizzard's EULA was enforced in two separate cases
and relief was granted based on the EULA's terms.

"EULAs" for mmogs meet the elements of contract formation, so
even absent case law (which there is), they are the type of
promise that we call a contract.

Does this solve the issue regarding virtual profiteers? Not
entirely. It is not meant to. I simply want to clarify some
misconceptions about EULAs themselves, and not any of the
terms therein."

[chuckjuhl]

Actually, I beleive you have misrepresented some elements of contract law

The legality of EULA's in general is very questionable. Most court's that have touched on the issue (or similar issues) have been inclined to comment that they are not - at least concerning provisions that restrict how and where users use the products. Just because there is language in a EULA that restricts the user's rights, does not make that language legal.

Psystar appears to be in the right on this issue, if past cases in proprty law govern. That is very likely the reason that Apple has not been willing to directly challenge a small company like Psystar on the issue.

Apple has never once in it's past failed to immeditely and aggressively attack any alleged infringement, no matter how slight - even to the point of closing down blogsites for alleged "leaking" of internal company information.

If Apple believed that their EULA was defensible in this case, they most certainly would have acted by now with a Cease and Desist and Preliminary Restraining Order - as has been their practice involving other issues, and as would any responsible company would if their position had merit.

However, given the very questionable legality of the significant parts of the OSX EULA, I doubt very seriously if Apple wants to defend the OSX EULA before a federal court.

From a legal perspective, I fail to see where Apple has an actionable claim. There is no actionable infringement on any of Apple's property rights. At most, the EULA allows Apple to refuse to support OSX on any hardware but Apple hardware, and to allow Apple to modify OSX so that future versions cannot run on non-Apple hardware. But if Psystar merely facilitates the end user to install legally purchased copies of OSX on non-Apple hardware, there is no infringement on Apple's property rights. And since the EULA aplies to the END USER, legally Psystar is not legally obligated to comply with the EULA at all. That is an issue between Apple and the end user. And as previously stated, Apple's remedies for the end user's violation of the EULA are very limited. The provision in question is not a statutory protected property right like copyright infringement (which needs no EULA to protect anyway).

In short, it will be very difficult, if not impossible, for Apple to find a cause of action to bring against Psystar.

Again, if Apple believed they had a viable cause of action, they would have a planeload of lawyers on their way to Miami already.

[chuckjuhl]

You're level of knowledge is amazingly low.

Here is a synposis of the current legal status of EULA's

"The enforceability of an EULA depends on several factors, one of them being the court in which the case is heard. Some courts that have addressed the validity of the shrinkwrap license agreements have found some EULAs to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the U.C.C. ?see, for instance, Step-Saver Data Systems, Inc. v. Wyse Technology (939 F.2d 91), Vault Corp. v. Quaid Software Ltd. (at harvard.edu) and Rich, Mass Market Software and the Shrinkwrap License (23 Colo. Law 1321.17). Other courts have determined that the shrinkwrap license agreement is valid and enforceable: see ProCD, Inc. v. Zeidenberg (at findlaw.com), Microsoft v. Harmony Computers (846 F. Supp. 208, 212, E.D.N.Y. 1994), Novell v. Network Trade Center (at harvard.edu), and Arizona Cartridge Remanufacturers Association Inc. v. Lexmark International Inc. may have some bearing as well. No Court has ruled on the validity of EULAs generally; decisions are limited to particular provisions and terms.

The 7th Circuit and 8th Circuit subscribe to the "licensed and not sold" argument, while most other circuits do not[citation needed]. In addition, the contracts' enforceability depends on whether the state has passed the Uniform Computer Information Transactions Act (UCITA) or Anti-UCITA (UCITA Bomb Shelter) laws. In Anti-UCITA states, the Uniform Commercial Code (UCC) has been amended to either specifically define software as a good (thus making it fall under the UCC), or to disallow contracts which specify that the terms of contract are subject to the laws of a state that has passed UCITA."

What this all means (in case you don't understand college-level text) is that in general EULA's are of questionable validity, and in many states they are explicitely unenforceable. In fact, many states have passed laws that prohibit the enforcement of EULA's.

[chuckjuhl]

You asked for reference.

I can give you articles from IP legal journals if you like as well. I thought that a wike quote woulkd be more at your reading level.

In any event it is indisputable that many states expressely prohibit the enforcement of EULA's.

BTW, are you asserting that anything in the wiki quote is innaccurate? If so, please, PLEASE point the inaccuracies out. I will personally update the wiki.

What kooolaid are you drinking anyway?

[SAFD1450]

Way to general

This is odd, is it the first time you have ever been challenged?
All I am doing is refuting the partial evidence that you are giving
and trying to get others to look at the whole picture not just
half, but you seem more interested in talking crap. As a matter
of fact I am a college grad and I am currently a sergeant in the
United States Army. I am writing this post from Camp Taji, Iraq.
So if me putting my life on the line for you everyday for the past
6 moths isn't enough then go ahead and flame away. If you
would like to continue with a civil discussion then please
continue.

[chuckjuhl]

What?

YES I HAVE!!!!!!! JEEEZ! You obviously do not understand what is "hacking" (or rather more accurately, illegal hacking) and what is not. I didn't have to recompile anything. adding additional drivers and running an emulator IS NOT MODIFYING ANY OF APPLE'S proprietary code.

Are you like brainwashed? Are did you just step off that Yearning for Zion compund?

[SAFD1450]

Emulator

Here's from wiki

True EFI emulation was a highly sought after asset for the
OSX86 community. Previous efforts based upon Apple?s open
source Darwin Project and Hackintosh gurus allowed users to
enjoy OS X on normal PCs, with patched kernels/kernel modules
which simply bypassed EFI. Using the EFI patch, Hackintoshes
could boot off "vanilla" (unmodified) OS X kernels and use vanilla
kernel extensions, allowing the system to be compatible with
future system updates, and giving increased stability.

The emulator bypasses Apple checks that are in place. This
violates the EULA. Like I said before the EULA would have to
stand up in court. But if it does then this is illegal.

[SAFD1450]

Of Interest

This article may be of interest to people that are keeping up on this
situation.

http://www.engadget.com/2008/04/16/osx86-project-not-too-
happy-with-psystar-either/

[mikalg]

Payment Processor

Am I the only one who is skeptical about a company THAT RELIES ON A non-merchant ACCOUNT PROCESSOR?

Do you SUPPOSE their D&B is so poor that their credit rating does not allow for a REAL merchant credit card processor?

[chuckjuhl]

Jumping the GUN there?

I'm surprised they were able to get CC processing back up so quickly. Changing Merchant Accounts is not exactly a 10-minute job. It usually takes several days to a week to process. The fact they they are using a non-merchant account processor in the interim hardly reflects on their D&B. Actually, given that they are obviously a startup on this particular venture, it's unlikely that they even have a D&B rating yet.

BTW, the trend in internet sales is away from traditional payment processors and their high fees and toward non-merchant processors like Paypal, Google Checkout and Amazon. Traditional CC merchant accounts are really old school (a good fit for traditional brick and mortar but inferior to the new virtual procesors for internet sales. Traditional CC processing is like POTS telephones - rather archaic. Get with the 21st Century - where small, young businesses use VoIP, virtual officing, and virtual processors.

[chuckjuhl]

Plenty of crow to go around.

Hmm? These guys appear to be a legit, if somewhat inept, startup.

http://blogs.zdnet.com/BTL/?p=8538

Of course, I recall a little company called PCs Limited back in 1984 that had the audacity to sell IBM clones ? from an off-campus dorm room. Credit card processing? didn?t have it. Physical address? Didn?t have one. You mailed your money to a PO Box and crossed your fingers. Turned out to be just a college drop-out and some slacker friends assembling off-the-shelf parts and taking orders over the phone and by mail ? cash or check only. Delivery often took several weeks. And, of all things, they were charging people for doing what anyone with a copy of Popular Electronics could do ? build a IBM-PC clone.

That company evolved into what is now Dell Computers, the number one PC builder in the US.

And way back in 1977, if you wanted an Apple II, you would have found no Apple corporate address or Apple retail store. Instead you would have found two former high-school social outcasts toiling away in a two-car garage selling their home-brew computers by mail order. You sent your check or money order to a P.O. Box and crossed your fingers. We all know where those two pioneers of high-school Geek-Goth are now. One is still a daydreamer. The other is still trying to get even with everybody that picked on him in high school. But together they built a computer dynasty.

Just goes to show that it doesn?t take a winning personality to find a market and supply it. Or to be successful. Sometimes It just takes a vision and some moxy.

[John Sawyer]

Wait and see

This may be an adequate description of the legality and feasibility of
what Psystar is currently doing:

- Some parts of some EULAs have been succesfully struck down in
some courts. Similar, and other, parts of other EULAs have not been
succesfully struck down in other courts, in decisions that seem to
contradict prior cases.

- The laws regarding EULAs vary from state to state. I don't know
whether there's some kind of federal statute regarding EULAs that
Apple and Psystar could argue.

- Arguments can be made for and against the idea that installing OS X
onto non-Macs involves modifying OS X code.

- Arguments can be made for and against the idea that using Open
Source code to install OS X onto non-Macs violates one or more Open
Source agreements, and whether such Open Source agreements are
enforceable, etc.

- Because of the above, nobody yet knows what the judges in any
potential Apple vs Psystar, or Psystar vs Apple, or Open Source vs
Psystar court cases would decide.

- Small companies have succeeded before, but Psystar's Open
Computer effort seems to have gotten off to a rocky start, with
questionable methods that most small business success stories don't
engage in.

- Support from Psystar, after the sale, seems pretty minimal for OS X
users, and from their own statements, seems limited to just replacing
broken hardware that was part of the original computer they sell. I
doubt if Psystar will become big business among OS X users, due to
this stated lack of support. But maybe the OS X on x86 community
will grow enough to provide an adequate support base for the
relatively small number of Psystar's Open Computers that will be sold.

- Psytar's Open Computers have a number of significant limitations for
Mac users, but maybe they'll find a niche among people who like to
hack.

It's a classic case of wait and see.

[chuckjuhl]

Wait and see should mean wait and see BEFORE making vitriol allegations.

Apple?s EULA in general is very weak legally (as has been detailed in earlier posts), and the provision in question is most likely controlled by a 1984 case which held that "refusal to license [the company's] copyrighted computer software to those who did not purchase [the company's] hardware was an unlawful tying arrangement? A ZDnet blogger has also recently brought that up. http://blogs.zdnet.com/Murphy/?p=1121. The short of it is, that if Apple does attempt to go to Court over the issue, they will most likely lose and not only that, they will likely be required to support OSX on non-Apple hardware.

As for the EFI emulator, under U.S. copyright law, that is now public domain. The authors freely distributed it with no license for more than two years with the intent of unrestricted dissemination. Under U.S. law, that constitutes placing the code in the public domain. Once the code has been placed in the public domain, it cannot be later removed from the public domain. By placing the code in the public domain, the author irrevocably relinquishes all ownership and rights in the copyright. "[S]oftware released thus goes completely out of control of the author, who, even if he subsequently so desires, cannot impose any restriction on its use."

"Programs that are uncopyrighted because their authors intended to share them with everyone else are in the public domain. Programs in the public domain can be used without restriction as components of other programs."

The test of whether software has passed into the public domain is set out in Computer Associates Int'l v. Altai, 982 F.2d 693.This decision holds that computer software may enter the public domain through "freely accessible program exchanges and the like," or by becoming "commonplace in the computer industry." \

Psystar has no obligation to even acknowledge the contributors to the OSX86 project, who created and placed the code is public domain.

So in spite of all of the vitrol misinformation being thrown out that Psystar is somehow acting illegally or immorally, all indications are that Psystar is acting well within the law, and most likely is in a strong position to force Apple to support OSX on non-Apple hardware.

This is my gripe against the so-called cNet "journalists." They apparently have not been taught even the most rudimentary journalistic skills - like doing a little homework to present a balanced and objective set of facts before throwing out vitriol allegations as fact, such as that Psystar is illegally violating Apple EULA, when all legal indications are that the EULA is illegal, not the violation of the EULA). Or that Psystar stealing the work of the OSX86 foundation, when that code is clearly in the public domain, has been for more than two years, and Psystar's use of the EFI code is little different than Apple's use of BSD Unix.

Unsubstantiated, baseless and vitriol allegations unnecessarily hurt real people and real businesses. It is irresponsible to the extreme.

I for one am in favor of applying slander and defamation laws to internet blogs. Free speech is a right, but a right that carries responsibilities. Everyone is free to say whatever they please. I am very much against any form of prior restraint. But words have consequences, and public statements (and that includes bloggers and commentators on blogs) should be held accountable for their words are uttered with careless disregard for the truth and if they cause unwarranted damage.

[chuckjuhl]

Questions swirl about cNet "journalists"

that the misinformation that you helped to perpetuate in this case was very unfortunate. Psystar has done nothing illegal. Apple?s EULA in general is very weak legally, and the provision in question is most likely controlled by a 1984 case which held that "refusal to license [the company's] copyrighted computer software to those who did not purchase [the company's] hardware was an unlawful tying arrangement? A ZDnet blogger has also recently brought that up. http://blogs.zdnet.com/Murphy/?p=1121. The short of it is, that if Apple does attempt to go to Court over the issue, they will most likely lose and not only that, they will likely be required to support OSX on non-Apple hardware.

As for the EFI emulator, under U.S. copyright law, that is now public domain. The authors freely distributed it with no license for more than two years with the intent of unrestricted dissemination. Under U.S. law, that constitutes placing the code in the public domain. Once the code has been placed in the public domain, it cannot be later removed from the public domain. By placing the code in the public domain, the author irrevocably relinquishes all ownership and rights in the copyright. "[S]oftware released thus goes completely out of control of the author, who, even if he subsequently so desires, cannot impose any restriction on its use."

"Programs that are uncopyrighted because their authors intended to share them with everyone else are in the public domain. Programs in the public domain can be used without restriction as components of other programs."

The test of whether software has passed into the public domain is set out in Computer Associates Int'l v. Altai, 982 F.2d 693.This decision holds that computer software may enter the public domain through "freely accessible program exchanges and the like," or by becoming "commonplace in the computer industry."

So in spite of all of the vitrol misinformation being thrown out that Psystar is somehow acting illegally or immorally, the facts are that Psystar is acting well within the law, and most likely is in a strong position to force Apple to support OSX on non-Apple hardware.

This is my gripe against the so-called cNet "journalists." They apparently have not been taught even the most rudimentary journalistic skills - like doing a little homework to present a balanced and objective set of facts before throwing out vitriol allegations as fact, such as that Psystar is illegally violating Apple EULA, when all legal indications are that the EULA is illegal, not the violation of the EULA). Or that Psystar stealing the work of the OSX86 foundation, when that code is clearly in the public domain, has been for more than two years, and Psystar's use of the EFI code is little different than Apple's use of BSD Unix.

Hopefully, I have not offended you so much that you are unwilling to see that unsubstantiated, baseless and vitriol allegations unnecessarily hurt real people and real businesses. It is irresponsible to the extreme.

I for one am in favor of applying slander and defamation laws to internet blogs. Free speech is a right, but a right that carries responsibilities. Everyone is free to say whatever they please. I am very much against any form of prior restraint. But words have consequences, and public statements (and that includes bloggers and commentators on blogs) should be held accountable for their words are uttered with careless disregard for the truth and if they cause unwarranted damage.

[John Sawyer]

We still have to wait and see

Chuck, you make some very good points, and though you're not
exactly saying it's a slam-dunk in favor of Psystar, you SEEM to be
more in that camp than may be warranted. I still say it's a case of
wait and see.

I know the OS X EULA may be weak, which I never disagreed with,
but as to whether anyone in the chain of getting OS X to run on a
non-Mac (the person who writes the software to allow OS X to run
on non-Macs, or an individual or a company that installs OS X using
these methods) has violated Apple's OS X EULA ("This License allows
you to install, use, and run one (1) copy of the Apple Software on a
single Apple-labeled computer at a time. You agree not to install,
use or run the Apple Software on any non-Apple-labeled computer,
or to enable others to do so")--that might depend on the definition
of the term "end user". But the OS X EULA uses the term "end user"
only in reference to "Educational End User" and "Government End
User"--all other references to users, just uses the term "you", which
in this instance may be broader than the term "end user", since
"you" might apply to anyone who ever picks up and uses a copy of
OS X for any purpose, including hacking it to get it to run on non-
Macs, unless there's a way of developing something like Netkas'
PC_EFI software without ever laying hands on a copy of OS X, or
without testing the software by using it to install OS X onto a non-
Mac, which I tend to doubt. As far as simply installing OS X,
according to the EULA, anyone installing OS X onto a non-Mac, for
whatever purpose (whether for that person's use, or someone
else's), is violating the EULA.

So it's pretty likely that anyone developing software to allow the
installation of OS X onto a non-Mac, or anyone who installs OS X
onto a non-Mac, whether a company doing it for their customer's
use, or a private individual, is in violation of the OS X EULA--not
just the "end user".

The question then becomes, what can Apple do about people and
entities that violate the OS X EULA? Is it a prosecutable offense, for
which a person or company can be barred from doing it again? As
Chuck points out, probably not by application of the EULA, since
that's not a law--it's a license agreement between Apple and anyone
who installs or uses OS X--and EULAs have also been successfully
challenged in the past, including ones containing the very clause
being discussed here--so its actionability may be limited to Apple
simply not providing tech support to anyone who does this. The
EULA doesn't state what penalties would be applied to violators
(though I'm not a lawyer, so I don't know if that's required), so it's
unclear what other penalties there might be.

As someone says at http://www.9to5mac.com/safari-illegal-on-
pcs-35466345354, in an unrelated case of "violation" of the Apple
Software License Agreement for running Safari on Windows, due to
Apple temporarily forgetting to modify that agreement for Windows:

"?violating this clause in the Apple agreement isn't breaking the
law - it is breaking your agreement with Apple. No criminal court in
the USA can pursue a violation of this clause."

But there may be actual laws, not just the EULA, which Apple can
call upon to stop Psystar from installing OS X onto non-Macs.
Apple has proven resourceful in court before, to say the least. I
haven't seen anyone cite EXACTLY what those laws might be, but a
strike against Apple's possible position here, is that the laws they
might rely on, seem to apply only to making modifications to Apple
code, and from what I understand, Netkas' PC_EFI software allows
OS X to be installed on non-Macs without modifying any OS X code-
-neither the OS X installer, nor the OS X it installs, get modified, and
PC_EFI sits on the hard drive as a separate element--and PC_EFI
doesn't contain any non-Open Source Apple code. Some earlier
efforts to get OS X to run on non-Macs involved modifying some of
Apple's code, but PC_EFI modifies Open Source Darwin boot code.
The EULA makes reference to prohibition on modifying Apple code
("Except as and only to the extent permitted by applicable licensing
terms governing use of the Open-Sourced Components, or by
applicable law, you may not copy, decompile, reverse engineer,
disassemble, modify, or create derivative works of the Apple
Software or any part thereof"), and though again the EULA doesn't
say what Apple can do about it if you do any of that, stiff penalties
for doing those particular things do exist, which Apple has proven
in the past. If PC_EFI modifies and uses only Open Source software,
it seems Netkas, etc. wouldn't be subject to these penalties, and
maybe Psystar could continue doing what it's doing. But if creation
of PC_EFI involved decompiling or reverse engineering any Apple
non-Open Source code, then Netkas, etc. might be in for a court
case, and if they're ruled against, then by extension, Psystar and
any other company that tries to use software determined to violate
Apple's intellectual property rights, might be prohibited from using
that software.

Then there's Netkas' latest move, an attempt to block Psystar from
being able to use PC_EFI as part of a commercial venture: changing
its license agreement to read: "Redistribution and use in binary form
for direct or indirect commercial purposes, with or without
modification, is strictly forbidden." I don't know how actionable this
is either--maybe it is, but I don't personally know. Chuck says it's
not, because for about the past two years, PC_EFI, in one form or
another, has been Open Source, and therefore in the public domain,
and that can't be reversed by the software's author merely inserting
a line into his EULA that he "takes it back".

Interestingly, I've been able to find only two instances of an Apple
Software License Agreement on Apple's web site (or anyone else's
web site, barring a time-consuming web search), and neither one is
in any of the site's OS X-specific sections--they're at:

http://www.apple.com/accessibility/voiceover/license.html
http://store.apple.com/Catalog/US/Images/MacOS9.htm

The first is similar to, but not the same, as the version that comes
with each copy of OS X (it makes no reference to the "Apple-labeled"
restriction, since it's a license for VoiceOver, not OS X), and the
second is an older version from the OS 9 days (as its URL implies).

Bottom line: it's all still up in the air. At the very least, PC_EFI will
probably prove to be legal, and in the public domain (even if Netkas
ceases developing it, someone else probably will, to keep pace with
changes in OS X that try to prevent it from working) and until/unless
Apple figures out a way to permanently break it (questionable),
anyone will be able to use it to install OS X onto non-Macs, whether
onto a Psystar Open Computer, or any other PC that's capable of
running it. If Psystar is legally prevented from installing OS X onto
their Open Computers, either by Apple, and/or by a lawsuit from
Netkas or another entity tied to the Open Source community (this is
the least likely possibility of all), I doubt Psystar would stop making
the computer itself--they'd just market them as "the best-priced
non-Mac computer best able to run OS X", with the end user
supplying their own copy of OS X, and downloading PC_EFI
themselves. Not much different from the state of affairs just prior
to Psystar's offerings, since many PCs were already able to run OS X
this way just fine (except for all the caveats, making it not an
average-user alternative: no support from Apple (unless there's a
decision against Apple on that); having to install any patches, on an
ongoing basis, to circumvent the modifications Apple will be making
to OS X to try to break PC_EFI; etc.). So, whoever wants to run OS X
on a non-Mac, using PC_EFI, possibly including a Psystar Open
Computer, will probably still be able to do so, no matter what
happens legally. It will just involve, for some users, some extra
work, rather than getting a pre-installed package from Psystar, but
even a complete package from Psystar, at least with current
legalities, will involve more work to keep OS X running on it
properly, than a native Mac.

As to whether Psystar is competent to handle their Open Computer
business, that has yet to be seen too, but they've already shown, in
an amazing number of ways, that there may be cause for concern
about that. Screwups include not knowing what address they were
moving into, getting it wrong several times, and outright lying about
why their first credit card processing company, PowerPay, stopped
doing business with them--Psystar said it was because there was
too much volume for PowerPay to handle, but that was only one of
three reasons--PowerPay's CEO said: ?PowerPay initially suspended
and subsequently terminated the merchant-processing account of
Psystar for three primary reasons: product/services not as
represented in application, sales volumes grossly exceeded, (and) no
address verification utilized.? There's that address thing again.
Though these aren't criminal violations, it does show some
incompetence on Psystar's part. Psystar then started using PayPal,
which quickly shut them out too, citing possible violation of Apple's
rights. It may turn out that Apple's legally defensible rights may
not be violated, but PayPal didn't want to risk it. All these
screwups, violations, etc. show a tremendous naivete and/or
arrogance by Psystar. My experience in seeing similar behavior from
other companies over the years, has been that such a mentality
usually doesn't result in competent execution of their business--in
other words, they're displaying a level of arrogance, sloppiness,
dishonesty, etc. that goes beyond "two guys in a garage trying
hard". The Psystar principles have been doing business of various
sorts for years, so you'd think they wouldn't be this bad at simple
things by this time. It's still unclear if they have any connection to
the Razor FX investment scam, especially since the people involved
in that, haven't been named as participants in Psystar, but Psystar
owns the domain name "razorfx.com"--I'm not making any
allegations, but this is worth looking into.

A couple of my favorite quotes in this story, are from Rudy Pedraza
himself, one of the owners of Psystar, on the "Tom's Hardware" web
site: "We?re here to help Steve Jobs. He?s not making enough money.
We?re here to help him increase sales." And: "We?re going to do it
whether Steve Jobs likes it or not." Both quotes may turn out to
show more ignorance and arrogance than boldness about how both
business and the law works, but we'll see.

As to whether Apple "deserves" any of this, or "owes it" to anyone to
open up OS X for use on non-Macs, I disagree--much as many of
us might not like it, Apple owns OS X, and so they retain all the
rights which that ownership entails. We also retain all the rights to
do what we wish, within the law, and apparently that includes the
right to install OS X onto non-Macs, given that the OS X EULA may
simply bar non-Mac OS X users from getting tech support from
Apple, at least for now.

Some of the more revealing articles:

http://www.pcmech.com/article/following-the-psystar-story-
weekly-synopsis/

http://www.forbes.com/technology/2008/04/18/apple-mac-
psystar-tech-cx_bc_0418macman.html

http://www.tomshardware.com/news/psystar-openmac-
apple,5205.html

And a site run by someone who has ordered an Open Computer,
and plans to report on his experience:

http://blog.winnschwartau.com/

[macwiseguy]

Psystar update from an early Purchaser

I ordered a bareboones Psystar Open Mac a couple days after it was revealed and My order should ship Monday. I got the $399.00 option (no OS installed) wanting to install the one I already purchased in October.
I get a call today from someone at Psystar/sales or support wanting to confirm that is what I wanted (no OS installed). Tried to convince me that it was really recommended that I have it preinstalled as its not a standard install. I was a little puzzled with this as they have it as an option and if it really is (Mac Compatible) then it should install, like a standard Mac. So in questioning him I asked if there were instructions or any support for installing it myself and he pretty much said I'm on my own... Which begs the question, that what makes this different from trying to install it on a similar PC? The EFI software that's included? If so, why wouldn't it be fairly simple? I guess I will wait and see how it goes once I get the computer. I'm sure with the plethora of people out there it shouldn't be too difficult. But I pressed him on the possibility that Apple would come out with an update that would render this system unuseable to which he countered that they would have a special update available when that happens. So, interesting stuff and I have a number now if anybody has questions to direct to the company. I'll wait for replies, but curious if anybody else got this call?
Bottom line. I wouldn't order one if I had to spend $150.00 for the OS, which retails for around $110 now. I might as well by a MacMini if its going to cost $550.00 now... admittedly the specs are going to be better on this.
Stay tuned, and so will I.

Mark in Napa, California
[e-mail]

[John Sawyer]

No OS X support

macwiseguy:

The Psystar web site does mention that if you install OS X on your own, that Psystar won't provide any support for doing it yourself. From what I understand, installing OS X onto a Psystar Open Computer is no different (so far) than installing it onto any other compatible PC--first you install Netkas' PC_EFI software, then you install OS X. There may be more details to that process, but that's all I know about that. Psystar's partial claim to fame, besides being the first company to try to mass-market PCs running OS X, is that they claim their Open Computer's parts were chosen with OS X compatibility in mind, implying that maybe some other PCs might not be as compatible with OS X. Though I don't know how true that is.

[frak10]

Well, Psystar is still up, and my PsyMac runs just fine.

I guess it teaches everybody to quit assuming that A leads to B which leads to C which in turn destroys the Earth, eh?

[jgargano03]

Why should apple be the exception from being a clone? I think this is a form of a monopoly. They motherboard and cpu are of Intel design. Mac's aren't that wonderful they are in a tech shop more than a pc for hardware problems. I think the MAC os should be allowed to be installed on a pc. Technically.... a mac is a pc just with a unix os. There must be presidence which would constitute Apple's EULA ********.