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Apple Businesses

Psystar Wins a Round Against Apple 660

Posted by CmdrTaco
Daengbo writes "'A federal judge last week ruled that Psystar Corp. can continue its countersuit against Apple Inc., giving the Mac clone maker a rare win in its seven-month-old battle with Apple. He also hinted that if Psystar proves its allegations, others may then be free to sell computers with Mac OS X already installed.' Apple is currently suing Psystar over its sale of Mac clones."
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Psystar Wins a Round Against Apple

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  • by slashdotlurker (1113853) on Monday February 09, 2009 @11:28AM (#26783715)
    I wonder if the requirement by Apple that OSX be installed only on Apple produced hardware is guilty of violating the Sherman act http://en.wikipedia.org/wiki/Sherman_Antitrust_Act [wikipedia.org].
  • This is not a WIN (Score:4, Informative)

    by sogoodsofarsowhat (662830) on Monday February 09, 2009 @11:41AM (#26783955)
    for Pystar. They simple get another chance. Read past the writers slanted interpretation. Words like "seemed", "might", "could", "if" are signs hes laying out what could by slim chance happen. He is not laying out all the other more likely outcomes. Good luck on pressing for the overstretching of the copywrite....THATS all they have. Oh and Apple still is due to name those involved with Pystar...this should prove interesting yet. /my money is still on Apple
  • Re:Hell yes! (Score:1, Informative)

    by Anonymous Coward on Monday February 09, 2009 @11:50AM (#26784141)

    There's already another Psystar-like company in Europe: PearC (www.pearc.de)

  • Re:Hell yes! (Score:3, Informative)

    by Altus (1034) on Monday February 09, 2009 @11:52AM (#26784167) Homepage

    No, they sell full versions, but they are only supposed to be installed on Apple branded Macs according the the dreaded EULA.

  • RTFA (Score:5, Informative)

    by MoellerPlesset2 (1419023) on Monday February 09, 2009 @11:53AM (#26784185)

    That's what they sued for- antitrust violations. And that's what got thrown out.

    What's happened now is that the judge decided they could come back and
    file a new complaint based on copyright law instead.

    That doesn't mean their new counterclaims (Apple sued them) necessarily have any merit.
    In fact, I don't really see how this is a 'win' at all - if you file a complaint and it gets tossed out,
    you wouldn't normally be barred from trying again, if your amended complaint is substantially different.

  • by canajin56 (660655) on Monday February 09, 2009 @11:59AM (#26784303)

    That's only if they had an illegal monopoly on the PC market as a whole. If Apple were the only maker of personal computers than you could have a case here.

    Wrong. Section two is all about monopolies. Section one is all about contracts agreements, and conspiracies, with intent to restrict free trade. And a BIG rule is that you cannot have lease agreements or sales contracts which specify that the product in question may only be used with a certain other product. For example, Ford cannot form an agreement with Shell, whereby all Ford lease agreements stipulate that until you are paid off and actual own your car, you can only fill it with Shell Premium. You may note that other people sell gas other than Shell, and other people sell cars other than Ford. Similarly, Lexmark or HP cannot have the nice people at BestBuy make you sign a contract when you buy a printer, swearing you will only refill it with their brand of ink/toner. Yes, even though more than one company makes printers.

  • Re:Hell yes! (Score:4, Informative)

    by cowscows (103644) on Monday February 09, 2009 @12:10PM (#26784537) Journal

    Well, we can try to pull some lessons from an experiment done in the past, when for a period Apple licensed their OS to other manufacturers. Conditions weren't exactly the same, of course, but it's still informative.

    Apple did lose sales to the clone manufacturers, that much was fairly obvious. The clone manufacturers not only undercut Apple's prices, but they also would sometimes produce machines with better specs (on paper at least). Their build quality was often not up to Apple's standards, but quality doesn't always win out.

    Today Apple is financially in a far stronger position and more product diversified than they were back in the clone era, so losing a percentage of their hardware sales wouldn't be as damaging to them as it was back then, at least in the short term. But I do think that in the long term it could have a negative effect on public perception of OS X, particularly if lower quality machines caused problems for people migrating from Windows.

  • by slashdotlurker (1113853) on Monday February 09, 2009 @12:13PM (#26784583)
    Totally agree. This is the reasoning that Codeweavers uses when you buy Crossover Linux from them. I am glad that the judge agreed to look at this again. Its an important legal point. For all of our rants against Microsoft, we forget that in terms of behavior, it is a relatively chastened version of what it used to be. Apple has not yet undergone that learning experience and which is why they feel free to overprice commodity hardware by such large margins.
  • by db32 (862117) on Monday February 09, 2009 @12:13PM (#26784599) Journal
    Please don't ever go into law or business because it is clear that your understanding of either is unbelievably flawed. Monopolies aren't illegal. A monopoly is perfectly legal so long as it came to be through legal competition. The only real question here is whether or not a company can enforce a EULA. There is no monopoly nonsense here. The Psystar assholes are trying to profit off of someone elses work, that is all there is to it. I hope they get their asses handed ot them for it. I have yet to hear any stories about Apple giving a rats ass about people installing on x86 themselves, only about them getting pissed that these assholes are taking what is an upgrade and installing it as a full OS. The pricing of the OS X isntalls are based on the fact that you are required to install it on a Mac that you purchased...a Mac that has part of the OS costs rolled into it.

    At the end of the day if the judge rules that Psystar can do this because Apple sells OS X in stores and voids their ability to say that it can only be installed on Apple hardware I suspect Apple will pull OS X off the shelves pretty fast and modify the way their users can get access to the upgraded software. Or worse, they will put in some godforsaken activation shit like Windows. I frequently get to experience the joy of trying to recover an OEM system using non OEM hardware and Windows demands reactivation and then fails, and then MS says "fuck off, that is an OEM product key." Selling OEM licenses on PCs you built if you don't have an OEM deal has been repeatedly held up as illegal.

    End of day, this is a bunch of greedy little assholes trying to take someone else's work and profit from it and a bunch of people expressing a disgusting sense of entitlement in defending their nonsense. Look, if you don't like Apple's terms, DON'T FUCKING BUY IT! That is how this is supposed to work, this is how the market is supposed to regulate itself. Instead, a bunch of moron consumers buy shit they KNOW has bad terms and then pays lawyers piles of cash to try and get their way. But hey, for all the bitching that goes on around here about how evil lawyers are, the prevailing mentality is to support the lawyers rather than not buying products with shitty terms and letting the market sort itself out.
  • by sqlrob (173498) on Monday February 09, 2009 @12:57PM (#26785363)

    Take NeXT off that list. OS X *IS* NeXT.

  • by furball (2853) on Monday February 09, 2009 @01:27PM (#26785919) Journal

    1. Apple's profiting off BSD kernel (what is your favorite pejorative for Steve Jobs, given your love of Psystar above ?).

    The BSD license which applies to said BSD kernel permits profiting explicitly.

  • by db32 (862117) on Monday February 09, 2009 @01:31PM (#26785981) Journal
    The BSD license explicitly allows Apple to do that. Psystar is violating Apples license, see the difference? As far as iPod accessories, there is nothing that says you can't make those accessories and sell them, license, law, or otherwise. However, there is license AND law that says Psystar can't install OS X on non Mac hardware. Pretty significant difference.
  • Re:Hell yes! (Score:4, Informative)

    by gnasher719 (869701) on Monday February 09, 2009 @01:41PM (#26786135)

    Opening the box and installing it on a piece of hardware and selling the hardware makes things different.

    No, it doesn't!

    Actually, it does (kind of). You should at some time have a look at what the first sale doctrine allows you to do and what not. If you buy a used Mac G4, buy Leopard, install it on the G4, and sell the combination for a profit, including the opened box and DVD obviously, that is fine by the first sale doctrine. If you buy a used Mac G3, buy Leopard, modify it so you can install it on the G3 (which is perfectly legal), and sell the combination for a profit, then first sale doctrine does _not_ give you permission to do that because the software has been modified. Fortunately for you, the MacOS X license actually allows it. In case of any computer that is not Apple-labeled, Apples license doesn't allow you installation on that computer, so that computer now has an illegal copy of MacOS X. First sale doctrine doesn't allow you to sell any illegal copies of the software.

  • by Stewie241 (1035724) on Monday February 09, 2009 @01:53PM (#26786355)

    Actually, they do have a monopoly. If you buy an Mac you have to buy parts from Apple;
    Says who? From what I can tell, you can get a lot of parts for Apple's version of the PC - they are now the same as anybody else's.

  • Re:Hell yes! (Score:5, Informative)

    by MasterOfMagic (151058) on Monday February 09, 2009 @01:53PM (#26786367) Journal

    I am not a lawyer, I want to reply to this to correct a misunderstanding that many people are having.

    There are two issues that are getting conflated: technical inability to use a product and legal inability to use a product.

    Back when OS X ran only on PowerPC hardware, people with x86 were unable to use it as their operating system because their current system was incapable of running it due to differences in processors and machine code. This is a technical inability. Apple didn't need to put any statement in their license agreement telling purchasers that their software could only be used on Apple branded hardware because the only machines technically capable of running it were Apple branded hardware.

    Now that Apple machines use x86 processors and a mostly-PC architecture, (one of the main differences is that Apple machines use EFI which makes them "legacy-free", whereas most PCs still have a BIOS and most PC operating systems rely on that BIOS to load themselves) it is not an issue of technical inability. If a machine has EFI (or an EFI emulator that boots from the BIOS), it is technically capable of running OS X as its operating system. Apple doesn't like this because they want to sell more hardware, so they put a provision in their license telling people that the software is not licensed for this purpose. This is legal inability.

    PS3 games not playing on anything but the PS3 and XBox 360 games not playing on anything but the XBox 360 are technical inabilities. If somebody made a box that was technically capable of playing these games without infringing on Sony's IP (unlikely, but that's another bullshit topic), then Sony wouldn't have a leg to stand on if they tried to sue the PS3-clone maker.

    The only reason that Apple has any leg to stand on here is that copyright laws are crazy. The reason software requires a license is due to the fact that running a program requires a copy of it to be made from the external representation (disk, CD-ROM, DVD) to internal storage (memory). Only the copyright holder, by default, is allowed to do this. In order to allow others to use the program without breaking copyright law, current law says that they must be granted a license. However, a copyright holder's right to deny copying must be balanced against the potential abuse of consumer rights by not allowing people to copy the work that they paid for. It gets into a favorite argument of Slashdot users:

    If a software company is only selling us a license, then why don't they give us a replacement CD at nominal cost in perpetuity, or, if the program moves from CD to DVD, why shouldn't I be legally entitled to order a version on replacement media? (For example, I have a lot of old games on floppy. If I purchased only a license to these, not the actual media, can I go to Microprose and ask for a copy of Civilization on CD-ROM because I don't have a floppy drive anymore? Why not?)

    Legal inability in furtherance of selling some product reeks of tying [wikipedia.org], which is forbidden because it infringes on the rights of the buyers of a product.

  • by Rymo (1473085) on Monday February 09, 2009 @02:16PM (#26786777)
    It was announced today that a German company called PearC is starting to sell their own Mac clones. They claim that, according to German law, the conditions of a EULA that users can't see before purchase cannot be enforced. Since the EULA is inside the box and users can't see it, the argument will be that the parts about not installing OS X on non-Apple hardware are void. Article at Ars Technica.
  • Re:Hell yes! (Score:5, Informative)

    by mrchaotica (681592) * on Monday February 09, 2009 @02:21PM (#26786867)

    Because Psystar modifies OS X (including the kernel) to install on BIOS (non-EFI) systems, and modifies the binaries of every OS update Apple distributes.

    So fucking what?! Are customers suddenly no longer allowed to modify their own property nowadays?!

    If I buy a T-shirt, the manufacturer cannot prevent me from tie-dyeing it. If I buy a Mustang, Ford cannot prevent me from turbocharging it. If I buy a book, the author cannot prevent me from crossing out parts of the story and rewriting it.

    If I buy a copy of OS X, Apple CANNOT prevent me from modifying the fucking kernel!

    They are no selling OS X computers. They are selling computers with unauthorized distributed works of OS X, which is a clear violation of copyright law.

    Bullshit. Apple voluntarily made those copies of OS X available for sale, and Psystar legally bought and paid for them. There was no violation of copyright law. Full stop. Period. Even if we assumed the EULA were valid, there still wouldn't be a violation of copyright law because the only distribution occurred before the EULA went into effect, and was therefore governed only by the Uniform Commercial Code and copyright law itself!

    If you agree with this, then you agree with Microsoft using GPL code in Windows.

    For the twenty-millionth time, the GPL is NOT an EULA! It is a DISTRIBUTION license, which is completely different from an EULA in every way that matters.

    EULAs are imposed upon the "end user" (by definition!), after the purchase. Because of this, they are both inequitable (they do not convey any rights to the user that he didn't have already) and contracts of adhesion (the transfer of ownership already occurred; the user has no choice but to accept the terms). For both of these reasons, EULAs are unenforcible in any sane court.

    In fact, the only reason EULAs were invented at all is that some asshole came up with the theory that, because computer programs -- unique in comparison to all other creative works -- had to be copied from disk to RAM to be used, that that copy was an act of copyright infringement, and gave the publisher an excuse to impose an onerous license. This theory is now completely bunk, because copyright law has an explicit exception for software allowing that necessary copy.

    The way the GPL differs from all this, and the reason it is valid, is that it grants rights that the user didn't already have. Namely, it grants the right to redistribute the software. Because it grants rights, it can also impose conditions and still be equitable. Because it only comes into effect when you try to distribute the software, an act which you do not otherwise have the right to do, it is not a contract of adhesion. And because you'd have to have distributed the software in order to violate the GPL's terms, and violation revokes your right to distribute, violation of the GPL implies violation of copyright.

    Now do you fucking get it?!

  • by DrYak (748999) on Monday February 09, 2009 @02:52PM (#26787465) Homepage

    So fucking what?! Are customers suddenly no longer allowed to modify their own property nowadays?!

    If I buy a T-shirt, the manufacturer cannot prevent me from tie-dyeing it. If I buy a Mustang, Ford cannot prevent me from turbocharging it. If I buy a book, the author cannot prevent me from crossing out parts of the story and rewriting it.

    If I buy a copy of OS X, Apple CANNOT prevent me from modifying the fucking kernel!

    YES, you CAN modify the kernel (although maybe not under some stupid corner cases in the USA, thanks to DMCA. But pretty much everywhere else in the world) ...BUT...
    you CAN'T re-distribute THE MODIFIED kernel to 3RD PARTIES, without obtaining a specific license to do so.

    Psystar CAN obtain Mac OS X. Can modify the kernel (let's say in Europe, for the sake of avoiding DMCA). But CAN'T sell it on computers to customers, as they are selling a derivative of Apple's work, without Apple's license.

    Bullshit. Apple voluntarily made those copies of OS X available for sale, and Psystar legally bought and paid for them. There was no violation of copyright law. Full stop. Period.

    Up to that point : No, there's no violation of copyright law. The problem arises after that :
    They sell the modified OS X together with the Psystar computer.
    And Apple tries to prove in court that this is a derivative work sold without proper license.

    What Psystar SHOULD have tried, is to sell users unmodified copies of Mac OS X, and bare naked clones, WITHOUT an OS on them, only an installer (either a boot disk to insert first before installing OS X or a special installer on a hidden partition / modified BIOS image) which is able to patch and install OS X from the original media.

    This way they wouldn't have sold anything they lack a license for (the OS X they sell is Apple. Apple got paid for the copy and no derivative work is involved).
    The end user did the patching and as no distribution occured, there's no way to use the derivative work argument either.
    (Well except maybe that the installer/patched could fall under some problems with the DMCA in the USA. But in theory the above approach should be valid).

    The way the GPL differs from all this, and the reason it is valid, is that it grants rights that the user didn't already have. Namely, it grants the right to redistribute the software. Because it grants rights, it can also impose conditions and still be equitable. Because it only comes into effect when you try to distribute the software, an act which you do not otherwise have the right to do, it is not a contract of adhesion. And because you'd have to have distributed the software in order to violate the GPL's terms, and violation revokes your right to distribute, violation of the GPL implies violation of copyright.

    And the problem is that only a few license grants right to redistribute modified copies of a software.
    Parts of Mac OS X don't follow that such license. And as such you can resell your copy *OR* you can modify your copy.
    But you can't make more copy to hand to other people and - in Psystar's case - you CAN'T make a modification and resell that modification.

    It's stupid, because Apple got paid for the original copy any-way. But it's currently the law and Apple is trying to see if they can manage to apply it to that situation.

  • by Anonymous Coward on Monday February 09, 2009 @03:29PM (#26788213)

    in the words of the sherman anti trust act unlawful tying.

  • by jo_ham (604554) <joham999@@@gmail...com> on Monday February 09, 2009 @03:54PM (#26788669)

    Well, that "double the features HP" (sic) doesn't run OS X, so there's a major feature off the list for me.

    Your HP might cost half the price, but what cost, in terms of build standard (and no, Apple is not perfect here, but neither is any other PC maker - Apple just tends to get yelled at more due to premium branding), and choice of OS.

    On an Apple box, I can run Mac OS X, Linux (and assorted Unix flavours) and Windows if it's really necessary.

    On your "double the features" HP box, you can run Windows and Linux (and assorted Unix flavours).

    I'm also wondering what these "double the features" actually are. USB ports? Firewire? Audio ports? SPDIF I/O? Hard drives? Optical drives? graphics cards (not upgradable in iMac and laptops, but not upgradable on PC laptops either), PCI slots? RAM?

    I find it hard to imagine you can come up with twice as many features on your HP when compared to a similar Mac.

  • Re:Hell yes! (Score:3, Informative)

    by UnknowingFool (672806) on Monday February 09, 2009 @06:02PM (#26790719)
    First sale does not include modifying content. From wikiedia:

    With reference to trade in tangible merchandise, such as the retailing of goods bearing a trademark, the "first sale" rule serves to immunize a reseller from infringement liability. Such protection to the reseller extends to the point where said goods have not been altered so as to be materially different from those originating from the trademark owner.

    Look it up. Can you take Tom Clancy's Hunt for Red October in hardback and resell it? Yes. Can you take Hunt for Red October modify it to include a different ending, rebind it, and re-sell it? No.

  • by Arterion (941661) on Monday February 09, 2009 @06:09PM (#26790819)

    I think this is called the Doctrine of First Sale.

    For example:

    I buy a copy of a book.

    I cross out some passages, and write some new text into the margins. I then rebind the book into a different cover.

    Am I legally allowed to resale the book?

    How does this differ from reselling a copy of software, with modifications.

    If I were to just sell OSX straight out to people, then that's piracy. But if I buy a copy of it first, I can then resell that copy that I have purchased.

    Or another comparison -- a car analogy -- is the think of the sale of limousines. You take the original car, modify it, then resell it.

    Of course, there are ways around even what you suggest. For example, when you buy a Psystar, you are actually billed for a full copy of OSX and some hardware, then billed for labor for hiring a technician as Psystar to install it for you, including any hacks to make it run.

    The bottom line is: the only argument Apple really has is that it's illegal for Psystar to modify OSX. Being able to resell OSX -- in any condition -- is legal, and I don't think anyone is going to challenge that.

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