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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."
/popcorn.
I really hope Psystar wins this one. Apple (and they aren't the only one, just the subject on hand at the moment) really needs to get told where to stick their monopolistic behavior. If you release a product to the market, then you have no business telling people what they can and can't do with it once they've bought it.
"16MB (fuck off, MiB fascists)" - The Mighty Buzzard
I wish I had balls that big. I also hope they win. It would be awesome to legally be able to run OS X on the hardware of MY choice, rather than Apple's.
But this is slashdot. A slashdoter who didn't build his own computer is like a Jedi who didn't build his own lightsaber!
They are able to survive because they are filling a niche market, leading me to believe that they will not be a serious competitor to MS anytime soon.
In the meantime I await the continual improvement of linux to cause a critical mass of marketshare so that vendors will finally start giving it proper support....
This would have interesting ramifications if the countersuit was to succeed, and Apple forced to change the licencing restriction so that anyone could legally run OSX on non-Apple hardware.
I don't belive it would be in Apple's corporate culture to embrace such a change and push OSX as an alternative to Windows - they are making too much money doing what they currently do.
So I assume that means they would try to tie the OS to their hardware with code. Which may be enough to preserve the current situation - while it wouldn't stop hackers, it would discourage the vast majority of people.
-- Braden's law of data: All data spends some of its lifetime in an excel spreadsheet.
The argument by Apple is going to be made that they are an appliance manufacturer and that they sell the OS and support the OS only for the appliances they sell. They offer it for sale as an upgrade to their appliance for those who do not wish to purchase a new appliance and as a convenience to their consumers.
So they are not a monopoly by any means but they cannot argue that a third party cannot support that software as long as it does not imply support or cause any damage to existing company.
This is my sig. There are many like it but this one is mine.
Too bad this case will take several years before anything is decided and appealed. Then an another year for any beneficent for consumers if ruled in favor of competition, that is if any competitors are still left in business.
are doomed to repeat it.
Apple has been successfully shutting down clone makers for 25 years. Some immediately, some after several months, but always successfully. Psystar will choke on the stack of precedents.
"I may be synthetic, but I'm not stupid." -- Bishop 341-B
In other news Don Quixote was recently introduced as the new president of Psystar.
load "$",8,1
These events alone will generate $1MM+ (million??) in legal bills. We all know Apple won't stop until psystar is closed and will use it as an example to every american with a similar idea. You know, heads on a stick at the city gates and all that.
So, where's psystar's money coming from?
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
Will it be because they're right, or becuse they're rich?
To quote LongNoi "QZTR was right and won't leave me alone because I called him a moron when I was wrong" FYS
If this works, then people could make clone Nintendo game units, Sony game units and the like, opening the door for a new level of "fair use" doctrine.
I don't think the argument is that Apple is a monopoly, but rather that they're engaging in anticompetitive behavior - tying the purchase of one product (the OS) to another (the computer).
I don't see how Apple could ever be compelled to provide support on any hardware it doesn't deem acceptable. If they were to lose, maybe the outcome will be that if you sell an OS, you don't have the right to restrict its use to particular hardware.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
If I have a restaurant, I have the right to REFUSE TO SERVE you. If I make a product, I have the right to refuse to allow you to sell it at your store.
This isn't Apple refusing a customer in your restaurant, this is Apple saying that once you've bought the food from the restaurant you can't then go outside and sell it to someone you meet on the street. It's completely different, and the first sale doctrine gives Psystar the ability to do this.
"If I make a product, I have the right to refuse to allow you to sell it at your store."
No, sorry, you do not. You have the right to refuse to sell the product to me - which to an extent prevents me from selling it. However, you have no legal or moral right to force me to not sell your product after I have legally purchased it from you, or someone you have authorized to sell it.
Once you put an item on the market, your control of it is gone. If you do not like that, do not sell it.
"The EULA is intended for individuals, and while they might strike parts of it down, the judge should side with Apple's right not to allow a 3rd party to manufacture a product containing Apples' products."
The right of first sale arguably trumps Apple's EULA. Quite a few states do not even allow EULAs to remove certain rights of the user/middle man.
Great Intellect...
Well not quite. Not at all really. That would be you taking your Mac and selling it, since the license to OS X came with it (and is bound to it, like MS does to damn near every copy of Windows.) Unless you want to suggest that Psystar could do this if they bought a Mac for every Psystar unit they sold, which would be hilarious.
Those copies of OS X on the shelf? They're the equivalent of upgrades. The EULA requires that you have a license to OS X already, and said licenses are only sold with Macs. Notice that you could not, at all, buy Intel copies of OS X 10.4 off the shelf. All the copies available retail were upgrades for PowerPC machines.
The big question here is what kind of product the boxed version of Mac OS X really is.
That question is really easy to answer by looking at the license, and all your three answer were wrong. The license allows you to install one copy of the software on one Apple-labeled computer. It doesn't have to be an upgrade, so it is fine if you deleted your old copy of MacOS X, or if you install it on an Apple-labeled computer that never had MacOS X installed (or never had any MacOS version installed). In practice, it will usually be purchased by people who would otherwise buy an upgrade version.
Apple may not be allowed that option. Remember they are challenging Apple on Monopoly grounds. If they win Apple can be mandated to do or not do certain things that wouldn't apply to normal companies.
Except that the product that is supposed to be a "monopoly" is an operating system, and Psystar has at least two other choices of operating systems: The one from the market leader, Microsoft, with 90 percent or more market share, and the other one Linux, which they can even distribute without license fees.
Apple will just kill off the retail channel for upgrades of OS X.
Actually if psystar wins here, and Apple closes off the retail channel, then chances are a return lawsuit will follow and Apple will have more than it's wrist slapped... aka - they will be forced to offer OS/X to anyone that wants it...
Who is general failure, and why is he reading my hard drive?
You can install Windows on a Mac. And that's fine. But install OSX on a PC and Apple throws a hissy fit... Am I missing something here?
The game.
Paystar claimed Apple owed it money for performing work on Mac OS X that Paystar claimed should somehow enrich Paystar, despite Paystar having not done anything to deserve it.
That analogy fell apart and collapsed onto the floor into a million pieces. Psystar is claiming Apple is breaking the law and interfering with a legitimate business practice, not that Apple owes them anything for actual work done on OSX. This isn't anything like SCO.
Ok. Let me get this straight. Apple makes an operating system and the license agreement that comes with it states that you have to run it on Apple branded hardware. When you get an Apple labeled computer and run the Apple labeled operating system on it, it works like a mortal luser would expect it to. For damn nearly the entire population of Apple computer users, it does what they need it to do and they run around spouting, "Macs rock! PCs suck!"
Ok, now imagine what would happen if every computer company out there decided to provide Mac OS X with their computers instead of Windoze Vista or whatever they're installing on garbage prebuilt computers nowadays. Suddenly OS X won't be quite as great anymore because it will have all kinds of subtle failures and stuff. First, the hardware can induce failures that are no fault of the software. Further, if the hardware is fine but operates somehow differently from Apple hardware, bugs in OS X which don't manifest themselves on a Mac will crop up. Some would argue that this is good as it helps to find and fix those bugs. But do you honestly think Apple will achieve what it does if its engineers suddenly spend their time making OS X work around the characteristics of hardware they have no control over? Do you think Apple has the time to go testing OS X on every five dollar garbage motherboard that some cheapskate company decided to put in a computer?
What will happen to Apple's brand if that happened? Oh! Suddenly people will go around saying how much OS X is the suxx0rz because it crashes and it deletes data and it locks up and all this shit, EVEN IF IT'S NO FAULT OF THE SOFTWARE! Because the lusers don't know what comes from software and what comes from hardware. Hey, it locked up, OS X is the suxx0rz. And Apple's brand is down the tubes.
It is Apple's right and responsibility as a business to protect its brand by making sure its products are high quality and by making sure that others, for any reason, don't tarnish that brand.
Psystar wants to make a Mac clone? Fine! Download Darwin. Download Afterstep. Download every graphics toolkit out there. Start modifying. Apple worked hard and invested tremendous amounts to make their software.
You want a computer that works? Either get a Mac or build a *BSD or Linux box yourself.
McCain/Palin '08. Now THAT's hope and change!
Methinks this was their plan to begin with (counter sue). I can't imagine they just "happened" to come up with this defense and lawfirm all of a sudden.
How much do you want to bet Paystar has the same "donation"?
Erm, a million, billion dollars ?
You are smoking crack. Apple is not the same threat to MS that Linux is. MS profits from Apple!
MS's margins on (legitimate) sales to Mac users have higher average margins than average sales to typical PC users:
Firstly, there's no such thing as an OEM version of XP or Vista for Mac. Most OS sales in the PC world are low margin OEM bundles with HW.
A Mac user must purchase a full retail price version of Windows to install on their Mac.
Most unit sales of Office for the Mac are, again, individual sales. Most unit sales of Office for Windows are Corporate.
Then we can go into the famous $150m "donation" that MS made to Apple, and the patent cross licensing agreement between the two companies...
They can put it on there, but that doesn't stop me from doing it anyway. EULAs often contain all sorts of things that are highly unlikely to stand up in court, but until someone decides to actually test it in court, the licensor gets away with it.
People *do* sell things marked with "Not for individual retail sale" piecemeal all the time. Unless the seller bought it under a contract from the manufacturer that forbade such resale (note that this would put it under contract law, rather than license, and would give the restriction teeth), there's not much a manufacturer could do about it in most US jurisdictions.
Really, people say this, but don't appear to understand what that means, with respect to the legal ramifications.
Apple doesn't have a dominant position in its market. In terms of computer sales in Q2 08, they're 3-4 times smaller than HP or Dell. In terms of OS sales they're way behind Microsoft. In terms of monopolistic behavior, there's no evidence of predatory pricing, limiting supply, or price gouging. They are tying their OS to the hardware, but that's not illegal nor can it be called monopolistic unless the company actually has a monopoly.
Apple licenses OS X for use on Apple hardware. That's the condition you accept in using it, and they're well within their rights to enforce that. You might not like that, but given how the law is written now, it's perfectly legal.
Do you even lift?
These aren't the 'roids you're looking for.
OS X is subsidized by hardware sales.
Presuming this is true: The court remedy might require unbundling the hardware and software sales.
Apple could set the cost of each wherever it wants. But it will need to keep the sum affordable to keep selling the "out of the box experience".
- If it sets the SW price so high that the HW is underpriced you'll see people buying bare Apple machines and loading other OSes on them. This also leads to people being used to running other OSes on Apple hardware.
- If it sets the HW price so high that the SW is underpriced you get people like Psystar, selling Apple-like hardware running Apple's OS.
- If it sets them both proportionally to their actual costs, but at a premium, you get both at once. B-)
It gets even more interesting if the court requires them to split into two business units.
(And of course Apple could win. Or Apple could lose but the court prescribe other remedies.)
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Buy a Ford engine. Put in in your Bluebird. No lawsuit from Nissan. No lawsuit from Ford. (The mechanic will likely sue for mental anguish.)
Sell your Nissan/Ford unholy monster for profit. Still no lawsuit from Nissan, no lawsuit from Ford. (The mechanic's psychiatrist may sue you for reckless endangerment.)
Sell dozens, hundreds and eventually thousands of Fluebirds. Not only will Nissan and Ford stubbornly persist in their selfish refusal to sue you, they might even offer to make you a retailer or give you wholesale purchase prices. (The mechanics' labor union may come round to visit with torches and pitchforks.)
If you try to sell Bluebirds with Ford engines, representing yourself as a retailer for Nissan, then you will taste the awful wrath of a swarm of lawyers. Only then do you have an accurate analogy of the issue at hand. Apple can claim that Psystar is selling a product as an Apple product, thus infringing on their right to protect their goo*cough*
that is to say slandering their guugh*choke*
their good *spasm* *sputter* *wheeze* name.
Of course, Psystar can retort that they are in fact selling Psystar computers designed to be capable of running OSX and are even installing OSX, legally purchased, on their computers for a reasonable fee. Apple may then point out that "you can't buy our software to do that" in which case Psystar can retort that "already did" and they can then commence with the slap fest. A cool headed judge could gently dissuade the two from arguing with a fire hose and explain that that forbidding people to use a product they legally purchase in such a way as to prevent competition might be considered "anticompetitive practices" and point out an interesting statute or two to the dripping Apple lawyer swarm. I'm sure the Apple lawyer swarm will accept this with the same good grace you'd expect from a bull rhino with a terrible case of hemorrhoids who was just dumped by his rhino girlfriend for a larger meaner bull rhino who has decided to make it a threesome. (This is known as the no bloody way triple analogy.)
B) Eliminate all the stupid users. This is frowned upon by society.
but I would give a lot to know (as opposed to infer) where PyStar is getting the money for all this.
93rd rule of Slashdot: No matter how obvious my sarcasm is, my comment will be taken seriously by someone.
OK no one (except weird Mac Fanboys)likes Apple Software before OS X. Roughly around the same time Microsoft release XP and every one liked it. Microsoft release Vista. Almost immediately every one wanted to run OS X on their PC. ***now the tin hat part! Microsoft want to own as much of the OS market as possible but Apple stand in their way. Best way to destroy Apple is make their Business model illegal. So they create a terrible OS to force people with non-Apple branded PC's to install Apple's OS x or linux. Apple then take them to court and eventually looses. Thereby rendering the Apple company's business model invalid and running the company out of the hardware PC market an solely in to the MP3 and OS market.People then start to use OS X on their Machines and eventually find it's no better than Microsoft's XP but better than Vista. By which time Microsoft have released "Windows 7" with a flash add campaign that drags in all WinXP and Mac OS x users into a frenzy for this new OS........
Laters Sol "Have you found the secrets of the universe? Asked Zebade "I'm sure I left them here somewhere"
The cable company is a local monopoly. If they weren't, they wouldn't be forced to do anything.
Apple has at most 7.5% of PART of the market.
It's not any kind of monopoly.
Next?
Let them go suing... if PsyStar made a decent product I might get on their side. But they IMHO falsely advertised and shipped me crap that never did work. AND I AM IN FAVOR OF A MAC CLONE!!! Simply, they bait and switched. "Here buy this." I wanted a true clone and load my own legal OS X. Ther customer service said, "Oh... they shouldn't be selling that... that's way too hard for anyone to do on their own..." PsyStar KNEW I was reviewing the unit I paid for... and now it's a battle between American Express and PsyStar: PsyStar sold me crap that they can't make work but they still have refused my return shipment. On this one, if someone is going to take on Apple, at least let it be a reputable company. PsyStar is a poor technical neophyte who should be wiped out of the business. Of course, all of this is my personal opinion based upon the crap PsyStar dished out. www.WinnSchwartau.Com for more of my thoughts on stuff.
Winn Schwartau
I'm a Mac user, I've had my share of "Road Apples" over the years, and I say the conventional wisdom that Apple makes "great" hardware is pure and unadulterated horse exhaust.
You are missing my point: This is not theft.
Apple does not even sell Mac OS X "at a full retail price," it licenses it as an upgrade for running on (and only on) Mac hardware. It's find if you don't like that, but that doesn't give you commercial rights to pirate it.
The selling as an upgrade is a dubious claim since it works on its own. This is also not the commercial piracy of selling a bunch of copies: Apple get paid retail price for every single copy sold.
You can't buy a Madonna CD, remix it, burn it to CD-R and resell it as a Madonna album, even if you buy a copy for every copy you sell. That is still copyright violation, because Madonna had the right to decide what is sold as her work.
You're distributiung a new copy. Still not the same. Also, see below.
You also can't buy a CD (which is licensed for individual use, as CDs are)
No, no, and a thousand times NO. This meme has to die. You do not license CDs. You buy them. They're yours to do with as you wish, except that the government limits what you can do through copyright law. They are not licensed. However, the owner can choose to waive their reserved rights.
and broadcast it on your radio station.
Actually, yes you can, if you pay the fee. Don't forget that this ia covered by statutory licensing, and they can not refuse you if you pay the fee. IIRC, this is in Title 17, chapter 1, section 115 of the law.
The fact that you aren't aware of how licensing works doesn't make you a suitable arbitrator of how one company can reuse the work of another.
The fact that it's largely not licensing means that they can't dictate the terms as much as you seem to think.
"Breach of contract" implies the presence of a contract. Again, you seem to be assuming that Apple has an implied contract to sell Mac OS X to anyone who wants to sell derivations of it to enhance the value of their hardware. That is not the case.
Well, the suit alleges infringememt of copyright and violation of the EULA (berach of contract). Which implies a contract. The law also speaks a lot about reproduction of derived works. Very little (any?) is mentioned about derived works where no reproduction is involved. In this case, PyStar is buying a copy (OK), mangling it (OK), and then selling it whole without reproducing it. Who the hell knows if that is OK -- it's going to be settled by a judge.
SJW n. One who posts facts.
That the clone Mac were competitive is really more an indicator of Apple's mid 90s lack on innovation.
Not exactly. But you aren't totally out in left field either. The clones were supposedly free-riding on Apple's R&D for mother board designs etc. Apple later figured out they weren't recouping the costs from licensing and the clone makers sold cheaper/faster hardware than Apple because they didn't have to reinvent the wheel. (Remember, this was when Apple was the holy grail of "Not Invented Here")
Read up some more on "Mac clones nearly killed Apple" at wikipedia.
Once you start despising the jerks, you become one.
By that argument, a Britney Spears album is a good substitute for a Mozart symphony. They're both music, right?
Apple doesn't have a monopoly on "operating systems," but that's irrelevant because the issue is that Apple has a monopoly on computers running OS X, which is relevant because OS X has no reasonable substitute (where a "reasonable substitute" is defined as an OS capable of running OS X software).
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
...all it requires is that you throw out 12 USC 1201.
No, I don't think the DMCA would apply.
Remember, Lexmark was smacked down for trying to claim that their bundling arrangement between printers and toner constituted a DMCA-protected "access control" for the software inside the printer. The court found that, since the software in the printer was available in the clear to anyone who owned the printer, the "access" was granted by purchasing the printer, not by installing an authorized toner cartridge.
Likewise, once you buy a disc containing OS X, you have access to all the code stored on that disc. The access control is your purchase of the disc, not the interaction between the disc an an Apple-branded computer.
Visual IRC: Fast. Powerful. Free.
No, that's not a sensible way to define a monopoly.
Under your definition, all companies hold a monopoly on their own products. The logical conclusion must be that your definition of "monopoly" is flawed, as it has no use whatsoever. It fails to distinguish between one company and any other.
You go on to say that "OS X has no reasonable substitute" but surely since I can install Windows or Linux on a Mac, it does. I can substitute OS X quite easily.
Yes, that's not what you meant. How about the idea that I can compile well-written OS X code and run it on Linux? Some apps transfer between OSs with a recompile, after all. I've done this several times (before the novelty wore off and I became bored).
Maybe that's not what you meant either. How about this then - under your definition, all OSs have no reasonable substitutes because I can't take a binary and run it on any OS I choose to, even when the hardware is the same. I can install all three OSs onto a Mac, but I can't run (say) FarCry natively on any but Windows. Again, your use of the term makes no meaningful distinction between one OS and another, leading me to think your definition is incorrect.
To sum up - I see that you want Apple to sell you a copy of OS X with no strings attached, however your justifications do not support your case.
Apple's business model is that they sell hardware, not operating systems. Their OS is, for a most part, a way for Apple to differentiate their hardware product from other computers in the market.
Microsoft sells software. They are happy to sell you as many copies of Windows as you want. Microsoft would be thrilled if everyone bought a copy of Windows to install on their Mac. It would increase their profits.
The same can't be said about Apple if people bought OS X to install on their beige box. Theoretically they would have reduced profits due to not selling as much of their high margin hardware.
The question is does Apple have the legal right to prevent companies from selling their software in a ways other than Apple wants. I think Apple does have a legal right to restrict access to their own software, that's what a license is about.
“Common sense is not so common.” — Voltaire
"Its about time someone counter-sued Apple for this monopolistic behavior."
Monopolistic behaviour isn't illegal unless one happens to be a monopoly.
"When Microsoft does it, everyone jumps up their seat"
Because Microsoft has been adjudged to be a monopoly by at least three different legal entities (the US, the EU, and S. Korea), whereas Apple with their 4% or so of the world PC market are obviously not a monopoly. Monopolies are bound by laws that don't apply to other companies.
I'm not going to change your sheets again, Mr. Hastings.
You've glossed over an important point. Psystar doesn't just copy the disc onto the computer for you, they copy the software off, and then apply the equivalent of a crack-patch, decrypting and/or replacing multiple segments of it so that it can run on their hardware.
It's not just "the disc"; it's your disc. You are authorizing them to copy and adapt the software.
If they just shipped a blank hard drive, a shrink-wrapped retail OS X box, and an instruction pamphlet pointing users to the osx86 project, there would be absolutely nothing to see here.
All they're doing is taking it one step further: they install that software on your computer and follow those instructions, doing exactly what you could do, on your behalf, with your authorization, which is just what 17 USC 117(a) says you can authorize them to do.
Visual IRC: Fast. Powerful. Free.
"Where is NewYorkCountryLawyer when you need him?"
Probably throwing up in a bucket because of stench from all the BS here on Slashdot from people who claim that anti-trust laws apply to Apple because they're the only company who makes Apple products.
I'm not going to change your sheets again, Mr. Hastings.
Apple's business model is...
When the RIAA member companies have a business model based on selling plastic discs with a restrictive license to play the music encoded on that disc, we say, your business model isn't my problem. I want to shift my music to other formats, so I can play it without the plastic disc. Or I don't want all the music on the disc, I just want a few songs and I want to pay a fraction of the full price.
It's nice a company has a business model, but a business model is not a law any other entity need respect or follow. For any company other than Apple, what is the response when lawyers are brought in to enforce a business model? Scorn, ridicule, contempt.
If you don't like the way the market is responsing to your business model, bring in the MBAs and change that model. Don't bring in the JDs and sue your customers.
My guess is this is exactly why they bought PA Semi. Future versions of Mac will include custom chip used by OS that no other manufacturer will be able to purchase.