Psystar Offers $399 "OpenMac" Computer

mytrip writes to tell us that Psystar has announced a new line of Intel-based computers that promise to run an unmodified version of Mac OS X "Leopard". Unfortunately almost immediately after the launch their website went down and as of this story remains unaccessible. "Astute readers may well hear this news and ask themselves if it doesn't sound like a Mac clone, something whose time came -- during Gil Amelio's tenure at Apple -- and went shortly after current CEO Steve Jobs assumed the helm at the company. [...] It definitely defies the EULA for Mac OS X, which specifies that the purchaser of a legal copy of Leopard is entitled to install the operating system on an Apple-branded computer. If you buy the $399 OpenMac, you can check the EULA yourself if you also buy the pre-install option, as the company includes a retail copy of Leopard with your purchase."

Comments

No wonder Apple wants to stop Psystar

[ccguy]

I'm sure it's gonna take Apple seconds to upgrade their OS so that it refuses to work on these things.

..but if they do, public perception of Leopard might go from 'just works' to 'upgrades may be fatal'. So no wonder they may want these units to not ship at all even if technically it would be trivial to render them into regular PCs.

BTW, how hard would it to hack this "EFI V8 emulator" into any PC that uses the same parts?

Re:No wonder Apple wants to stop Psystar

[clf8]

Not sure why public perception would be like that, since the vast majority would actually own a mac and upgrades truly would just work.

Psystar has already stated that they had to modify the OS to get it to run. No big deal, but it's THEIR responsibility to make things work again if an Apple upgrade breaks things (maliciously or not).

Re:No wonder Apple wants to stop Psystar

[Joe U]

Courts really do frown upon lopsided unsigned pre-purchase contracts.

Basically, it wouldn't be an issue if the agreement was on the box for everyone to see. It probably wouldn't be an issue if Apple made you read and sign the agreement before buying a copy. But go to Best Buy, purchase a copy of osx, open it up, read the agreement, box it back up and then try and return it. Good luck.

Apple really might not like the outcome of a case like this.

Re:No wonder Apple wants to stop Psystar

[hedwards]

Apple will win this case without any problems whatsoever and (if you were to print out the decisions) probably more than a ton of case law on Apple's side. The license is perfectly clear, not even close to being unconscionable, 100% enforceable, ans Psystar knows this. Apple probably has not bothered suing home enthusiasts who mod the software by hand since a. it is a waste of money going after individuals who are not
making money; b. there is little to no chance of it causing problems with Apple brand perception. However, as soon as this goes from a wacky and semi-functional side-project into a money making business. I doubt that, there are definitely reasons why this isn't clear cut. Litigation could help illuminate the subject. They can't use a license to remove a person's legal rights. The question is going to come down to whether or not fair use applies to the situation. They'll probably be able to nail Psystar for distributing the OS in violation of the terms of the contract, but it's hardly clear cut as to whether consumers have the right to install the software themselves.

Just because it's in the contract doesn't mean that it's enforcible. Contracts wouldn't contain severability clauses if that weren't the case.

The funny thing is for all the people who think Psystar is somehow great, after doing this (assuming it's not just a prank) there is probably a GREATER chance that the hobbyists will get sued in the future since more publicity makes this more of a threat to Apple's image. I don't think that's a fair characterization. Psystar is potentially doing everybody a favor here. The issue of EULAs doesn't come up as much as it might in the courts, because there's often times a significant risk to the company that wrote the EULA and very little reward in doing so.

There are definitely issues here which need to be tested. More specifically, it is not clear to me that Apple is in the clear on this one. They probably have grounds to sue and get an injunction on licensing grounds, but in terms of preventing a competitor from producing compatible hardware, they haven't a chance in hell. Perhaps if they can demonstrate that Psystar reverse engineered the hardware in a way which isn't legal they can win. But other than that, they don't have grounds to prevent the infringement.

Re:No wonder Apple wants to stop Psystar

[jelton]

I don't mean to get nit-picky, but this isn't very good legal analysis:

There has to be benifit [sic] to both parties for a contract to be valid. I can't just throw $200 at apple and get software that I they say I can't use without having the option to return it. Since the parties involved refuse to accept returned software the return policy is unconscionable and the license [sic] may be void.

A working definition for a contract, at least for lawyers and courts in the US, is that it is a bargained-for agreement with consideration. In a case where a plaintiff is suing for breach of contract, these are the bare minimum elements that must be proved by the plaintiff in order to make out a prima facie case.

Unconscionability, on the other hand, is most typically used as an affirmative defense to the enforcement of an otherwise valid contract. While a consumer could certainly raise this defense if sued for violating an EULA, it's not typically a claim one raises as a plaintiff.

In theory, at least, if a box of software says clearly and unequivocally that you agree to the EULA if you use the software, and that EULA is available in some form (including online on the company's website), then it is enforceable.

That being said, there is a potential for (some, at least) EULA's to be considered contracts of adhesion. In particular, because EULA's on consumer software involve boiler-plate agreements that are non-negotiable by the consumer and sometimes permit the developer to change those terms after acceptance by the consumer, it's possible that future rulings may reverse the existent doctrine developed by Step Saver v. Wyse or distinguish between business dealings and consumer dealings.

This is a rapidly developing area of law. Anyone who speaks in absolutes, saying either that EULA's are or are not enforceable, is either ignorant of the law or advocating their position. These types of enforceability issues are ripe for review and any given ruling may, in large part, turn on the provisions of a given EULA and who the parties are (i.e. is purchaser of the software a business or a consumer?).

To what extent licensing law varies from traditional contract law, I can't say, having not studied licensing law in depth (yet). Also, if you buy software from an actual retailer, get it home, open the box and then disagree with the EULA, you can often seek and receive a return from the developer/publisher if the retailer won't accept a return.

I welcome any corrections, comments or flames of my analysis.

EULA's

[dreamchaser]

So are they good and enforcable this week, or evil and unenforceable? Seeing as this pertains to Apple it's probably a coin toss. The fanbois will all chime in with how it's such a good thing that Apple restricts what hardware one can run OS X on, and how this company should be shut down. If this were about some MS EULA there would be a firestorm about how EULA's are bogus anyways and unenforceble.

If I buy OS X I'll damn well run it on any machine I want. In fact, one of my two OS X machines is *not* Appple Branded. That's right, it's a Hackintosh. Sue me, Jobs.

Re:EULA's

[stewbacca]

Jobs doesn't care about your home-brew Hackintosh. He does care about Brand X selling hackintoshes, however.

Re:EULA's

[dreamchaser]

I understand that. My point as about EULA's and about the fact that if Apple wants to restrict OS X to Apple only hardware then they should require proof of Mac ownership in order to buy a copy. They do not. If anyone can buy one then anyone should be able to install it on any computer. That goes for little shops that decide to sell hardware to run it on.

I know why Jobs cares. He is every bit as much a wannabe monopolist as is Gates. He loves total control and complete product lock down. I don't hate Apple, like I said I have a Mac. What I hate is the hypocrisy exhibited by zealots.

This is /.

[elrous0]

I predict 100 posts from people saying "Apple can do whatever they damn well want with their OS!" from the very same people who scream bloody murder if MS so much as includes a media player with their OS.

Re:Reality check

[Midnight Thunder]

Macs are not more expensive; they're just less flexible.

If you are talking about internal upgrade ability, then only really the MacPros are genuinely upgradeable. The MacBooks are no less expandable than you average portable and the desktops are targeted towards a market that is more comfortable connecting a cable, than opening up their computer. For all the rest USB and Firewire offer most of the expandability that people want.

Re:Reality check

[vought]

Why should Steve listen to you, or anyone who advocates Mac cloning?

The last time Apple tried it, the move almost cost the company its life. Power Computing and UMAX moved in on the high end and cannibalised Apple's most lucrative sales of Power Macs (and cannibalised is the right word; Apple did all the engineering for PCC, while the Austin firm just built boxes).

Power and Motorola also moved in on the bottom end (which is where Apple wanted them to sell anyway), but it was the PowerTower Pros that really hurt Apple's business and licensing program.

There's an error in the submission, too. There was no Apple "cloning" program. None of the Mac OS Licensees designed their own boards until well into the program (two years), and they all used "Old World" architecture. The licensing program actually started under Spindler, not Amelio.

If Apple licensed the OS for non-Apple PCs, it'd be the same story all over again, albeit less severe, as Apple has diversified in the past several years. Dell (or whoever) would race Apple to the bottom on prices, and Apple's R+D budget would be cut short. Macs wouldn't "just work" anymore, and someone at Apple would be stuck writing drivers for every piece of nonstandard hardware junk the licensees wanted to install to get the price down.

If a $300.00 premium every few years when I buy a new Mac is the cost of avoiding these kinds of headaches, I'm happy to pay it.

Re:Filling a chronic void in the Mac marketplace

[PapayaSF]

This is a gaping hole in their product lineup

You're absolutely correct, and it's a huge opportunity for Apple. All they need is a cut-down Mac Pro, call it a Mac Pro Mini. One (not four) hard drive bays, one (not two) optical bays, two (not eight) RAM slots, one slot for a graphics, and maybe one other slot. They can't sell that for $999 and make a profit? Or sell it for $799 and use it to storm the gates of corporate America.

One more comment, not mentioned so far: Psystar is doomed if for no other reason than that they are selling a computer with "Mac" in the name. Talk about painting a bull's eye on yourself for Apple's lawyers!

Re:"includes a retail copy of Leopard..."

[goombah99]

If TFA is right, the $399 includes Leopard.

TFA is wrong. they sell it as a $150 install add on, or you can do it yourself for $125.

And, as I keep pointing out whenever I hear this "bundling is great when Apple does it" argument: the whole point is I don't want half of the crap that a mac makes me pay for, anyways.

Well this comes down to philosophy. On most mac's i've owned there's been some feature I did not use. e.g. PC card, or a scsi port or bluetooth. that's true.

But what I have noticed is too things. First, developers can target more fully featured software because they can assume high level features will be installed. For example, who can foreget the old nightmare days if configuring soundcards or interupts on PCs and the difficulty of finding software that worked with your card. Macs all had (somewhat) high end sound cards from very early days and the driver's for them in the OS distro. So developers could assume they existed.

As a result even though I might not actually need some cheerful toon in some piece of software I bought, the developer just threw it in because they could have no fear it would work.

As a result, I actually tend to use the extras mac includes more often simply because software I buy happens for one purpose takes advantage of them.

The other thing I notice is that while I might not have used firewire on the first mac I bought I definitely started using it on later macs. And bought firewire disks. But then I noticed that my new hardware was backwards compatible with my old macs.

nice... this meant my macs had longer service lifetime because I was not going and trying to find comaptiblilty extensions and drivers. the old macs had them.

In the long run, specing at the high end and getting bundles that are quite cheap for what they include, seems to pay off even if you don't use all the features right away.

the only place where ala-carte specing seems to really pay off is on racks of servers or fleets of comuters (for say an office). There dropping something you know you won't need can save a few dollars.

Re:Reality check

[tepples]

The MacBooks are no less expandable than you average portable and the desktops are targeted towards a market that is more comfortable connecting a cable, than opening up their computer. For all the rest USB and Firewire offer most of the expandability that people want. What kind of 3D video card can be connected to a Mac through USB, FireWire, or Ethernet? That's why there are so few Mac games: because there are so few Mac Pros.

Re:Reality check

[igb]

Compaq certainly didn't have IBM's blessing.

They did, however, have Microsoft's blessing. Geeks buy hardware, but everyone else buys systems. The point about Compaq was that they could ship a box that was from an end-user's perspective the same as an IBM-PC, with the active and enthusiastic support of the software vendor who controls said perspective. Compaq's only legal issue was over the BIOS, but as the specification was openly distributed (and was in essence rather similar to CP/M anyway) a cleanroom implementation was hardly a barrier to entry. Microsoft were selling more copies of the software, which they wanted to do, and would support and indeed cheer on Compaq and the rest.

In the case of trying to do the same thing with Apple, at the very best a vendor of clones without Apple's agreement would be able to sail through a very narrow strait on licensing. Apple would have no obligation or enthusiasm to help, and would be legally perfectly OK to erect arbitrary roadblocks in future releases. Arguments that `Microsoft aren't allowed to do that' aren't relevant, because Apple aren't a monopoly: the rules (in most jurisdictions) for monopolists trying to control the market further are rather different.

ian

Re:Not the first

[feepness]

They were really starting to carve out their own share of Apple's customers before Jobs pulled the plug. So what you're saying is that Apple's legal tactics to protect their profits are ultimately malevolent towards the consumer?

Sounds familiar...

Re:As a Mac User, and a Realist...

[evilviper]

In fact, I believe if Microsoft only had to design an OS for two or three active production models at any given time, Windows might be far more reliable than I find it to be.

This is pure, unadulterated, urban legend. A hold over from the days when Microsoft would blame the hardware manufacturers for all their software bugs.

You'll note there are innumerable operating systems out there which are stable as a rock, and yet support a vast range of hardware. Linux/BSD are the first to come to mind, but there are others (Solaris, BeOS, et al.)

No matter what kind of hardware you have, 2+2=4 (Intel CPU bugs aside). Crashes should not happen. Period. Diversity does not contribute to this in the slightest.

Re:No wonder Apple wants to stop PsystarDON'T UNDE

[Nom du Keyboard]

All this does is prove how overpriced Apple gear really is.

Umm, did you end with an attempt to troll?

When another company can make a profit selling a more powerful system for half the price, it's not trolling to point out the obvious that the more expensive one is likely overpriced. Only hyper-sensitive Apple FanBois (who did pay too much) can take offense at common sense.