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Psystar Will Countersue Apple
An anonymous reader sends us to CNet for news that Apple clone maker Pystar plans to countersue Apple. We discussed Apple's suit last month. "Mac clone maker Psystar plans to file its answer to Apple's copyright infringement lawsuit Tuesday as well as a countersuit of its own, alleging that Apple engages in anticompetitive business practices. Miami-based Psystar... will sue Apple under two federal laws designed to discourage monopolies and cartels, the Sherman Antitrust Act and the Clayton Antitrust Act, saying Apple's tying of the Mac OS to Apple-labeled hardware is 'an anticompetitive restraint of trade,' according to [an] attorney... Psystar is requesting that the court find Apple's EULA void, and is asking for unspecified damages."
First sale doctrine allows PsyStar to resell copies of OS X, but not install it on their PCs!
MS vs Zamos is of interest ONLY if PsyStar was strictly reselling OS X. More interesting is Jacobsen vs Katzer, where the Artistic License is an enforceable copyright restriction. In this case the issue is whether the OS X EULA contains an enforceable copyright restrictions:
1) "Single Use and Family Pack License for use on Apple-labeled Systems"
2) "General. The software (including Boot ROM code), documentation and any fonts accompanying this License whether preinstalled on Apple-labeled hardware, on disk, in read only memory, on any other media or in any other form (collectively the âoeApple Softwareâ) are licensed, not sold, to you by Apple Inc. (âoeAppleâ) for use only under the
terms of this License, and Apple reserves all rights not expressly granted to you."
3)"Single Use. 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."
GPL Deconstructed
You've got the right idea, but you're applying it backwards.
Because it is now an open and popular platform, the existence of substantially similar and functionally equivalent alternatives actually makes a stronger case for Apple.
Consider Data General. The linchpin of the decision was that the CPU was useless without the OS--that without the tied product, the tying product had no utility. Without that detail, the decision does not work. It's very different from the case of a bundle of an x86 computer system and an x86 OS. There are dozens of compatible operating systems and dozens of compatible hardware manufacturers. You don't have a paperweight when you buy any kind of computer, because you don't need a specialized OS to run it. Apple and Psystar are missing the critical element of Data General and Digidyne.
Attempts to reverse it, such that the tying product is the OS are amateur at best. The OS does not come with a computer attached. It is sold as an accessory and upgrade by a company to existing users of that same company's products. There's no requirement of a purchase when you buy the OS--it's not being tied. The sale is premised on the existing possession of a Mac, but this is nothing new. Upgrades are always sold in this manner; it's not unique to software, either.
It's promotional availability: buy one, get one free. You can't say that you can't get the tied product (the free item) unless you buy the non-free one. Promotional tying is also quite common in bundle packages, e.g., toothpaste with a toothbrush for $5, while the toothpaste alone is $4 and the toothbrush alone is not available for sale. You can't demand the toothbrush for $1. There are thousands of examples of favorable pricing or special product availability based on a prior purchase.
That Apple chooses to sell OS X at a particular price, for its existing customers only, simply does not require that that price be made available to anyone else. The same can be said of Microsoft and its OEM and upgrade pricing policies, and the same can be said for companies who condition the sale of accessories, add-ons, upgrades, etc. on the prior purchase of the underlying product.
It is not immoral or illegal to set the terms under which you will or will not sell something. It further is not incumbent on that party to devise a foolproof system--the argument that an individual can buy one off the shelf and finagle an installation out of the disc is not convincing. It's an argument that seems to be begging for invasive sales procedures and DRM. Apple offers owners of its computers a good product at a low price and trusts consumers to honor that.
Showing up to say that Apple is getting what it "deserves" by having a desirable product at a below-cost price, sold over the counter without restriction or complication, and that Apple's business model is not their concern is exactly why corporations hate consumers, especially the kind that often populate this forum.
Do you even lift?
These aren't the 'roids you're looking for.