Psystar Crushed In Court 640
We've been following the case of Mac cloner Psystar for some time now. Apple was just handed a summary judgement over Psystar, and as usual Groklaw has the scoop. Here is the order (PDF), though PJ supplies it in text form at the link above. "Psystar just got what's coming to them in the California case. ... It's a total massacre. Psystar's first-sale defense went down in flames. Apple's motion for summary judgment on copyright infringement and DMCA violation is granted. Apple prevailed also on its motion to seal. Psystar's motion for summary judgment on trademark infringement and trade dress is denied. So is its illusory motion for copyright misuse. ... So that means damages ahead for Psystar on the copyright issues just decided on summary judgment, at a minimum. The court asked for briefs on that subject. In short, Psystar is toast." Reader UnknowingFool adds, "There are still issues to be decided but they are only Apple's allegations: breach of contract, induced breach of contract, trademark infringement, trademark dilution; trade dress infringement, state unfair competition, and common law unfair competition. Even if Psystar wins all of them, it is unlikely to help them very much."
This comment surprises me (Score:5, Interesting)
I know. They'll say, but, but, but ... what if they hadn't used the master and just used each copy, then would it work? Sons, why do you think Psystar used the master copy? Because it's a business, and in a business, efficiency is money. That's why businesses set themselves up, to make money. The whole world is not with you on a holy war to destroy EULAs and the GPL. Even this rinkydink business wanted to make money. Theoreticals belong on message boards, not in business and definitely not in courtrooms, and even on message boards, everyone told you for years that this wouldn't work out if someone tried it. It's been tried. It didn't work out. ... coming from Pamela, who revealed that Microsoft played no small role funding the SCO debacle though bogus license purchase.
If you follow patent troll cases for example, you would know that shell business are often set up by litigants for the sole purpose of facilitating a lawsuit. Once you've acquired your defunct IP, you set up a web site to demonstrate intent to sell a product. Sure it's not strictly necessary to test the patent but it can help when it come times to assess damages, and it garners judge and jury sympathies (especially if you can get it tried in the Texas east district).
So, who was behind Psystar? Dell perhaps? There's no chance in hell a startup box builder would go to these lengths to test a legal theory. Their vested interest in the supposed business was a pittance compared to the cost to fight this, so where'd they get the money?
Obviously, Psystar was staged for the exclusive purpose of being sued .
Psystar winning would be terrible for Microsoft (Score:4, Interesting)
Microsoft is very happy with the status quo. Apple voluntarily limits itself to the tiny niche that is their own hardware. As is, they're absolutely no threat to Microsoft.
They've almost died on PC sales several times (Score:3, Interesting)
Their real profit these days is the iPod/iPhone/iTunes segment. Which they would make approximately zero on if they were only available to Mac users.
Re:Psystar winning would be terrible for Microsoft (Score:4, Interesting)
Apple could be a very serious threat to Microsoft if they changed their attitude towards businesses.
"Higher volume, lower price"? Doesn't sound like Apple to me. "Corner the $1K-plus market!" Now that's more Apple's game.
Comment removed (Score:4, Interesting)
Re:Provocation? (Score:5, Interesting)
If Psystar was a stalking horse then the only reason that makes sense is that someone wants Apple to lock their OS to their hardware. Apple doesn't seem too concerned by hobbyists building Frankenmacs. Their ever vigilant lawyers haven't been jackbooting down doors and dragging offenders to court. There have been instances in the past where an OS-maker has turned a blind eye to, if not actually facilitating, its OS being pirated simply to deny a competitor marketshare. Maybe somebody was worried that Apple was moving in this direction. However, if Apple is provoked into action by a startup selling Frankenmacs might they not decide to implement a TPM system to lock the OS to Macs-only? No more hobby Frankenmacs and Apple is seen as not only closed software but closed hardware too. The Technorati would be incensed and Apple would wear the black eye forever.
I would speculate that Apple is not really threatened by Frankenmacs in general. The kind of hobbyist who is technically inclined and is willing to put something like this together is probably outside of their target audience. I have known people who bought Macs not because they were fans of Apple, but because they were dissatisfied with PCs loaded with Windows. They were not technically inclined and most of their PC problems could be put into two broad categories: configuration issues and malware. They found Macs to be a breath of fresh air not because they think Apple is "hip" and "cool" but because they found its GUI to be easy and intuitive and its underlying Unix system to be rock-solid stable and not prone to malware. They felt like they found something that "just worked" and felt like that is what they were paying a higher price for. I think of these folks as Apple's target audience.
For those reasons, TPM would be a rather extreme measure. They are, at least for now, taking the "other option" of going after commercial Frankenmac producers legally instead of technologically. The precendent this sets is quite likely to discourage other companies from doing the same. The only ones left who are building Frankenmacs are doing so personally and not commercially and for the reasons I mentioned above, are probably not Apple's main market.
Re:The only thing lamer than this verdict (Score:4, Interesting)
Exactly. WTF is up with this quote from TFA:
And to those who argue that all that matters is that open source is a better way to develop code, let this case be a warning message. Apple makes fabulous code. Of course, the BSD community did a lot of it for them, but Apple makes it all just work for end users, and they do that beautifully. So no one can argue that for end users it is not fabulous code. It is.
Huh? How is this case a warning message to the people who argue that FOSS is a better way to develop code? I think PJ has lost it and from reading the rest of the articles on the site, seems to have become a rabid anti-MS Apple fangirl.
And she comes across as pretty weak in the law department as well. Look at how she skirts an important question
I know. They'll say, but, but, but ... what if they hadn't used the master and just used each copy, then would it work? Sons, why do you think Psystar used the master copy? Because it's a business, and in a business, efficiency is money. That's why businesses set themselves up, to make money. The whole world is not with you on a holy war to destroy EULAs and the GPL. Even this rinkydink business wanted to make money. Theoreticals belong on message boards, not in business and definitely not in courtrooms, and even on message boards, everyone told you for years that this wouldn't work out if someone tried it. It's been tried. It didn't work out.
Erm what? Can't she shed some light on a very relevant and interesting theoretical instead of evading it just because it can be against her conclusion that Psystar got crushed? I don't see any insight in her article, just meaningless gloating that Apple won.
First sale doesn't allow you resell derivatives (Score:5, Interesting)
That's a bunch of crap, and if that's what the decision says then First Sale law is over, at least until it gets escalated, and it will. First Sale is critical to whole long lists of industries. Using copyright law to restrict transfer of an object [blogspot.com] is an abuse... First Sale law permits you to modify things you've purchased.
If Psystar modified the OS X software and then sold the modified software (along with the computer), then they've both created a derivative work and distributed it. This should be clear cut in the courts. There is a circuit split over whether attaching a postcard to a tile and then reselling it constitutes the preparation and distribution of a derivative work, but the split is over the question of whether simply gluing the card to the tile is enough to qualify as a derivative work. In this case, modifying the software is almost unquestionably enough to constitute the preparation of a derivative work.
First sale will allow you to resell a copyrighted work that you have purchased; if, however, it's been modified enough to constitute a derivative work, you'll run afoul of copyright law. If, in the Seventh Circuit's tile case, [resource.org] the defendant had made a new piece of artwork, e.g. a collage or something with a bunch of postcard, that would likely pass the threshold for a derivative work.
If all Psystar had done was resell copies of unmodified copies of OS X along with their Hackintoshes, the issue of derivative works wouldn't come into play at all. It would be more a matter of whether Apple's EULA matters, etc. By modifying the copies, however, they opened up a big can of worms.
Use != Sale (Score:5, Interesting)
The simple truth is that Psystar DID have to use an image method to perform the installs, and so this should be considered a minimum necessary step towards exercising First Sale rights to do as you like with something you've purchased; but I do agree that they should have been required to use an image based on the same version of OSX that would appear in the box. First Sale law permits you to modify things you've purchased. If I am not permitted to modify Apple software, then arguably I can't even use it. And if I'm not permitted to use images to deploy OSX, then I'm certainly not even going to consider using it in the enterprise. If Psystar isn't allowed to use a custom image, then I must assume I'm not allowed to either.
Good points and I totally agree with your points on the validity of the First Sale law and it's necessity. However, you're missing a crucial point. Pystar not only modified OSX, (as is allowed for personal use), but it sold this modified derivative product, which is not protected by the First Sale law. You can use a modified product, but you can't sell. That's why Pystar lost, and lost big. I personally think that these and other copyright restrictions are too strict, but it is pretty clear in this case (summary judgement and all that) that Pystar broke it.
That's not true at all. (Score:5, Interesting)
It has been shown time and time again MSFT only makes products good enough to beat the competition through brute force
I wish advocates of alternative anything would just be honest. Microsoft has made products that are better than their competition and sometimes they are breathtakingly so. Bill Gates may have been a ruthless businessman, but when he was at the helm, Microsoft made some good stuff.
MS BASIC was way better than other BASICs made by other computer companies. String arrays? Geez, on Atari Basic you had to fake them.
DOS was better than CP/M. It was quicker to learn, and, had a pretty spiffy version of BASICA with it, for its day.
FoxPro (bought by MS), was way better than the dBase (bought by Borland). And, Access was a better desktop database than anything else out there.
Windows of the DOS extender series was better than any other DOS task extender series. For that matter, Windows 95 is hands down superior to Mac OS 8 and Mac OS 9 and Windows NT blew OS/2 completely out of the water. OS/2, single message queue on the desktop, puhlease.
Excel was better than Quattro, and I'm sorry, Word was better than Word Perfect for Windows, by far. My favorite Word Process was Samna AmiPro, which, probably would have ruled them all had Lotus not bought them and screwed it up.
Yeah, everyone can cry fowl over Netscape being destroyed by Microsoft, but Microsoft IE 4 had a fully programmable DOM and an AJAX XMLHttpRequest.. what did Netscape have... you could script a form, had document.write for everything else...a half-assed buggy email, and a billion bugs.
Visual Studio was way better than Borland's C++ IDE was by around 2.0 of Visual Studio.
It's pretty simple. Microsoft is good, at times, especially when Gates was running the show. And there were many times Microsoft, despite all of these "advantages", competed, and flopped... does anyone remember PhotoDraw? That little gem was actually pretty innovative, but, Adobe crushed it like an insect. Now we have Silverlight going up against Flash, and lo, Silverlight is still not reliable in Firefox and didn't have drop shadows. WTF. They lose, and deservedly so.
And, Microsoft lets the XP franchise languish, releases Vista way too early, and so loses market share to Linux. Microsoft prices things off, and so, WinNT Server loses to Linux. Microsoft, after a brilliant run from IE4-6 (yeah, one time, 6 was the best... almost 10 years ago?), but now, can't catch a clue with IE8 and so FireFox and now Google Chrome and Safari are now gradually crushing them.
And now Visual Studio seems ever more confused, while Eclipse and other IDE's start to look better, and I switched.
Conspiracies, monopolies, all of that, can be an advantage, but really, only for so long. In this society, it is product that matters,
Re:This comment surprises me (Score:3, Interesting)
Apple seems to be doing quite well, in fact better than any other competitor in their market sector. Apple is an OEM computer and consumer electronics company.
For example, Apple's market cap is greater than the next two competitors combined (hp + dell). Apple vs. HP vs. Dell Market Cap [wolframalpha.com]
It really needs to be drilled home that Apple is a hardware OEM, not a pure software company. They should be compared to other hardware oem's that provide similar services and have have similar user support and manufacturing infrastructures. They are not even anti-competitive with Microsoft besides on the marketing hype front. They've put decent engineering effort into support Microsoft operating systems out of the box. . . unlike the "oops there goes your mbr" method of MS installs if you dared to install your alternative OS's first.
Re:Except um.... (Score:3, Interesting)
I disagree. I think the PC revolution started when Compaq made the first clones of the IBM PC. Before then, there were home computers, but all of them had proprietary designs and clones were effectively illegal. After Compaq, the door was open to a huge number of manufacturers, all making "100% IBM Compatible" computers that would run the same software. This - the competition and evolution that it created - propelled the PC to worldwide success. The revolution could not have happened without an open platform. The PC crushed proprietary competitors like the Amiga and Archimedes even though those machines were technically superior at the time because the economics of the open market were overwhelming.
Apple is the only survivor from this time, but it, too, was very nearly destroyed by the juggernaut.
I'm confused (Score:4, Interesting)
In any other case the slashdot crowd would be raging and the megacorp who crushed the small upstart's website would be hacked, but wouldn't be visible because of the simultanious DDoS attack. Only because the megacorp is Apple and the rules with them are somehow different.
Seriously. Find me another case where Slashdot cheers a EULA being upheld. Find me another case where a DMCA attack is applauded. Listen up ya numbbuts, EULAs are always evil. The DMCA is always evil. Even when Steve Jobs is crushing a small competitor. What Pystar was doing may be illegal (I'd argue that point though) but I double dog dare any fanboy to stand up here and defend the MORAL position Apple took.
Either what Apple sells in those boxes are full copies of OS X or they are upgrades. Apple insists they are full copies when it suits their arguments AND equally insists they are mere upgrades when they need to crush Pystar. Make up yer fracking minds.
Re:That's not true at all. (Score:3, Interesting)
Ok I have mod points, and since there is no mod "You are full of it" I will have to reply, although I am sure that i will be hit for it...
FoxPro (bought by MS), was way better than the dBase (bought by Borland). And, Access was a better desktop database than anything else out there.
FoxPro was a dBase clone and the only thing it did better was a compiler, and a pretty slow one at that. Early versions of Access were a piece of crap. If DataEase had not bet the farm on OS/2 then they would have smoked Access so badly that MS would have been forced to buy the company, wait for it.... Oh yes they did try and buy the company once, but Arun Gupta ( rip ) did not sell because their product was better then dBase, FoxPro and Pradox combined.
Excel was better than Quattro, and I'm sorry, Word was better than Word Perfect for Windows, by far. My favorite Word Process was Samna AmiPro, which, probably would have ruled them all had Lotus not bought them and screwed it up.
Oh please. Quattro Pro was eating everyones lunch! It was faster the either Lotus or Excel, had a native GUI mode before their was a GUI to be had ( Lotus had a very bad add-in to get it into graphics mode and Excel had none ), had far more standard financial and statistical functions and had spreadsheet tabs first as well not to mention the easiest to create 3D graphs out there. Borland spent just about all the money they had at the time defending themselves against Lotus in the "look and feel" lawsuit wars ( if Jim Manzi walked up to me today I would put the little bitch on the ground ) that they ultimately won, but were left drastically weakened from not to mention that their development efforts for Quattro were frozen for about two years. As to your assertion for Word -v- Word Perfect that was the very beginning of the "Teddy Bear" wars, small wonder that Word came out on top.
Microsoft got to where it is today mostly by illegal business practices and FUD, if it had truly been a level playing field it would be a very very different software landscape out there. If Microsoft could not get a company that was building better and in many many cases FAR better software to allow themselves to be purchased then they would simply check in to a near by Hotel suite and start offering money that could not be ignored to the target companies best and brightest and destroying the company that way. This is not urban legend this is established fact and oh by the way if you doubt it, just ask Borland since The Traitor Anders now works their as well.
Comment removed (Score:3, Interesting)
Re:This comment surprises me (Score:2, Interesting)
About the only way for an Apple clone maker to stay in business is to make actual clones (which run an unmodified OS X) and distribute a boxed copy of OS X uninstalled with the machine. I think that's the only bullet-proof business model.
At first, I was going to suggest creating a VM shim which would mimic an Apple machine, but I feel that this method would land the manufacturer in DVD Jon territory -- distributing an application used primarily for circumvention.
Re:No, it doesn't. (Score:4, Interesting)
"Adaptations so prepared may be transferred only with the authorization of the copyright owner."
Good point. In that case, Psystar needs to do something like the following: Sell a machine and a legitimate copy of Mac OS X to the end user. Have the end user authorize the installation of *that* copy on the machine, with any appropriate adaptations to make it work.
117(a) allows the owner to "authorize" the making of such adaptations necessary to the software on a machine, and 117(b) does not prohibit it.
Re:Provocation? (Score:4, Interesting)
Maybe I'm not part of Apple's target market - since I use a MacBook I inherited from my wife when she upgraded - but I like Apple for many of the same reasons I like Linux (or BSD for that matter). The convenience of being able to bust out a zsh shell counts for a lot when performing operations that are actually quicker and simpler when performed from the command-line than with a GUI. I was actually somewhat (pleasantly) surprised to find that OS X in fact comes with zsh "out of the box". I had figured this would be considered an unnecessary detail on a Mac, but obviously not.
Apart from that, life with Apple is a trade-off between having everything "just work" and having an inflexible GUI of Apple's choice rather than my own.
Re:You're thinking too simplistically (Score:3, Interesting)
If it were taught in public schools then it would make such tactics a bit less effective. So, since most of the skilled practitioners of these dark arts are in power and since the "public schools" are administered by their minions, I'm not surprised that the schools are not spilling their secrets. If I knew some tricks that I could use to rip you off and/or control you and these tricks depended in part on you not knowing what they were, why would I teach them to you or even admit their existence?
And no, I'm not a conspiracy nut nor do I see conspiracies behind many things. What I do see is that the ruling class has a view of how the world works and what the rules are that is very different from what the rest of us are taught to believe. They use their insights to their advantage and we boobs wonder why our virtues and hard work aren't enough. It's how the ruling classes have remained in power throughout the history of mankind.