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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."
If Psystar wins, it'll be a pyrrhic victory.
Apple will just kill retail sales of OS X upgrades, and do it all through the iTunes store. Won't prevent hackintoshes but it'll kill Psystar's ability to ride Apple's development efforts.
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.
According to the EULA, the retail boxed copies of OS X are meant as upgrades to prior versions of OS X. Much like how MS sells upgrades of Vista from XP for considerably less than the full retail version (at least they used to.) Were a company selling PCs that were installed from non-OEM upgrade copies of XP, MS would have their heads.
Of course, if Psystar won here you would probably see an explosion of PCs sold with upgrade versions of Windows instead of full retail copies. Apple will just kill off the retail channel for upgrades of OS X.
If Apple was a software company, then they wouldn't be losing money. Since Apple sells complete packages and makes most of their money on hardware sales, if Psystar wins, it could spell the end of Apple. Without Apple, no more OS X development. Parasites are never beneficial to anything but themselves.
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
A full OEM copy of Windows is actually cheaper than an upgrade copy, so MS provides no incentive to cheat the system.
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.
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
Apple licenses their IP as they see fit,
No, they don't. They try to use a subversion of copyright law to force licensing on people. If they want licensing, they should do it properly with signed contracts, and etc. If they want to avoid the hassle and use the pre-packaged version provded by the government known as "copyright", then that's fine too. What they shouldn't do is try to turn one in to the other on the cheap.
just like the GPL licenses to those who distribute
You see that word "distribute"? That's what copyright is about. That's all the GPL addresses. Other than distribution (what copyright is about), the GPL makes no extra demands. None. And neither should it. You can also read about this on the FSF webpage, which includes a section about why it is not an EULA and why users should not be required to agree.
Violation of either license restricts what you can do with the product. In Apple's case, you aren't allowed to copy the OS from disc to computer, and in the GPL's case you aren't allowed to distribute your code. Both extend logically from copyright.
I disagree with your assertion that EULAs logically extend from copyright.
It is a big stretch to argue that copying from the OS disc to the computer does not fall under fair use, since it's required to use the product. You may as well argue that the image of a book projected on your retina is copying.
Consider another example. Remember those old computers, where programs could run directly from punched film and werre not loaded in to a program store? They apparently could not be subject to EULA's because they are not copied in order to run them. That seems like a perverse and illogical split to me.
SJW n. One who posts facts.
Blizzard versus the Glider people is case law for loading into memory is copying.
And apple brought suit immediately after the Blizzard/Glider decision
No, a Mac is a PC now.
PC is a term for a computer that descends from the IBM PC family and is destined for a single person to use in a home or office, which is basically an Intel/x86-based computer. It has nothing to do with the OS as Windows wasn't the only OS that ran on an IBM PC.
Macs are just PC's running some fancy bling software.
Mod me down, my New Earth Global Warmingist friends!
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.
Hmmmm.
Intel x86 processor? Check.
Intel chipsets? Check.
DDR2 ram in SODIMM and DIMM format? Check.
SATA hard drives using standard interfaces? Check.
Please explain to me where the fucking wiggle room is for these things to be considered anything other than Apple branded, x86 machines, using commodity parts, that happen to be running an OS other than Windows.
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.
> ..we have this construct called intellectual property..
Never use that phrase around here, we know better. Copyrights, Patents and Trademarks exist. None of those permit a EULA and with out the Apple EULA being an enforcable contract there is no grounds to stop what Pystar is doing.
> copyright means Apple specifically limits what copies an end user can make
Correct. But Pystar is buying retail boxed copies of OS X. Were they making illegal copies the case would have been over before it started with everyone involved snatched up in an FBI raid.
> In this case Psystar does not have the license from Apple to distribute copies.
Of course they do. One is free to resell an item they bought legally.
> The EULA is very clear that the distribution license for OS X only allows for a single copy on an Apple
> branded machine, and OpenPCs are not Apple branded. To use the GPL as an example, it would be the same
> case if OpenPC preinstalled a modified Linux kernel without providing the source.
First off the acronym itself gives the game away. An "End User License Agreement", even if they were legal, would only be binding on the end user. Pystar isn't.
As for your stupid (sorry, this one gets batted down weekly, use Google before opening your piehole on a GPL FAQ issue) argument trying to make an equivelence with the GPL it just doesn't track. The GPL is a grant of rights above and beyond what normal copyright grants while a EULA is a subtraction without any consideration. So I can toss Apple's EULA into the nearest bin and still have all of the rights under law I had before. I have the right to own the copy I bought, use it, etc. I don't have the right to reproduce it (outside of working copies made as typical use of the material) or publicaly perform it (not very applicable to most software) but there is no legal question whether I lawfully own a copy.
Now consider your hypothetical. If I give you a copy of Linux you lawfully posses that copy of Linux in exactly the same way I would own my copy of OS X sans EULA. You could do anything copyright law permitted, including sell it. You could sell/give away the ONE copy I gave to you. To do anything else with it, like preload it onto a line of computers, you would be required either to lawfully obtain a copy for each machine from a source licensed to reproduce that Linux distro OR to agree to abide by the terms of the license agreement and thus become a licensed source yourself. See the difference now? Read the GPL.
Democrat delenda est
Do you even lift?
These aren't the 'roids you're looking for.
This "Mac clones nearly killed Apple" is always brought up as some sort of gospel proof that open hardware is bad for Apple. While there is probably some truth to this, the main things that nearly killed Apple in the mid 90s were lackluster machines with clone-like industrial design sold at a premium and an aging operating system. Jobs came in and rectified these issues starting with the iMac and then OSX. That the clone Mac were competitive is really more an indicator of Apple's mid 90s lack on innovation.
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.
This "Mac clones nearly killed Apple" is always brought up as some sort of gospel proof that open hardware is bad for Apple.
Every time I see someone use the "Mac clones will kill Apple" argument (usually an Apple fanboy) I immediately think how pathetic it is that a company which claims to be the best is so afraid of competition, and that their followers never realise this.
This is a blatant lie. A BLATANT LIE.
THERE IS NOTHING STOPPING ANYONE FROM MAKING A MAC OS X COMPATIBLE COMPUTER. NOT EVEN APPLE COULD SUE YOU IF IT WERE COMPATIBLE, EVEN IF YOU INCLUDED EFI.
Because the last time Microsoft was caught bundling they were threatening their OEM licensees with termination of their contracts if they allowed a competitor to be so much as VISIBLE on the desktop. Monopolies are not illegal. Abusing them to destroy competition is.
Apple not licensing to Psystar in no way inhibits their ability to sell PCs, not even ones that would otherwise be Mac compatible (which is OSX86 + a fairly common set of existing hardware.)
How dare they subsidize their software development using revenues from their hardware divisions. HOW DARE THEY.
Man, I thought Slashdot was anti-Microsoft, but goddamn I have never seen such vicious attacks. If Slashdot has ever hated a company for being successful, it's Apple.
Then explain to me why Apple is making iLife, OS X, iPhone OS, iTunes, etc.
In order to sell their hardware. I mean, come on-- you listed iTunes, which they don't even sell in any form. It's completely free, which should make it obvious that it's 100% to sell iPods.
But all of their software is aimed at selling hardware. Even iWork and their Pro apps (which don't come free with their hardware) are clearly aimed at making OSX a viable platform in various professional environments. It's all about selling their hardware.
Riiiight, like you know how MS managed to go bankrupt after IBM PC compatible clones came on the market.
Yeah, and just look at IBM's thriving PC sales!
All the various versions of OS X do is change up the GUI, fix some bugs and add in a couple of new features.
Isn't that sort of what software upgrades do? The update the GUI, fix bugs, and add new features.
Charging $100 for an OS is enough money to keep development of it going. You act as if Apple sells OS X as a loss, which they clearly don't.
Microsoft charges more than $400 for Vista ultimate, and Apple doesn't move the volume that Microsoft does. How do you know that $100 is enough to support OSX's development. Do you have access to Apple's budget?