Psystar Not Closing Up Shop

Despite several sources reporting that post-indefinite-injunction Psystar was closing their doors for good, the company's lawyer is claiming Psystar plans on going forward with PC sales — they just won't be pre-loaded with Apple's OS X. Psystar plans on selling systems pre-loaded with "other operating systems," including Windows, as well as selling their "Rebel EFI software" that allows consumers to load OS X on generic PCs.

Comments

Monopoly or not.

[Zombie Ryushu]

Apple is engaging in anti-competitive behavior by tying its OS to its hardware. This behavior should be illegal for any OS, Windows, or OSX.

Re:Monopoly or not.

[ihuntrocks]

I'm not entirely sure why the previous post was tagged as "Flamebait". The author brings up a valid point in my opinion. You can buy a copy of Apple's OS independent of its hardware. It's not like it only ships pre-installed on Apple machines. Software is a set of instruction to control the state of a machine you have already purchased. I won't get into my opinions on whether you should be able to sell me something that my machine can already do. However, if I purchase a machine that can process instructions which are also purchased for said machine, I should be able to use them.

Flamebait shouldn't be used as a moderation option for legitimate opinions that you don't happen to hold yourself.

Re:Monopoly or not.

[ihuntrocks]

Having worked previously in IBM's AIX development labs and Linux Technology Center, I can say you are correct that the big-iron UNIX world does work that way. It also happens that their tying occurs on hardware platforms that are quite different from those you can buy off the shelf from any PC parts vendor. It's uncommon to find someone with POWER hardware to run AIX on at home. The same applies with PA-RISC hardware to run HP-UX on (older versions anyway).

Apple made the decision to dress up generic PC hardware and plunk their OS on it rather than staying with hardware that set them apart from their competitors and made tying more acceptable. The only thing that truly separates a Mac from a generic PC these days is the software it runs. Companies like Psystar showed that by using generic PC hardware to run Apple's product. If Apple wants to be a hardware vendor, that is fine. They just need to choose what their product actually is.

On the note of big-iron UNIX tying, I did get the chance to play on several PowerPC Macs that were running AIX in the development labs. Even the big-iron stuff runs on hardware that will run it.

Re:Monopoly or not.

[Rockoon]

Following your own logic, its not anti-competitive for Microsoft to intentionally break software.

After all, "You can't be anti-competitive in your own market."

Re:Monopoly or not.

[jo_ham]

The licence for OS X says "only to be used on Apple hardware" and if you want to stay true to that licence, you cannot make a business model out of selling machines with OS X preinstalled that clearly break the licence.

If you think "well, the licence should be ignored" then sure, as long as the GPL can also be ignored at will, or any other software licence for that matter.

Vertical integration is not illegal, and it does not harm any competitor if Apple choses to go after a company breaking its licence to OS X (other than the company in breach of the licence of course).

Apple hasn't gone after individual hackintosh creators, but it is well within its rights to go after a company who's main source of income would be a clear breach of the OS X licence.

Whether you agree with it or not, the software you buy (or download from OSS sites) has a licence - if you break the licence you might get away with it, or the enforcer of that licence may come after you.

Re:Monopoly or not.

[AdmiralXyz]

There are way too many people in this debate who think that "anti-competitive behavior" == "Waaaaah, they won't do what I want!".

As has been explained by more level-headed people countless times, Apple is the copyright holder of OS X. The copyright holder (of any kind of work, not just software) is given exclusive rights to license that work for others to use, under the terms of their choice. Apple's "terms of choice" are, you'll run OS X on our hardware and no one else's. If you don't do that, you're committing copyright infringement by using their work without their permission.

There is definitely an argument to be made that that's a silly state of affairs, and that copyright laws with respect to software are lousy, but as the laws stand now, Apple has every right to do what they do. When you say "this behavior should be illegal for any OS", that's one thing, and you might be right, but at the moment it's not illegal, and so Apple is in the clear.

If you don't like that, you need to complain to your government officials to change how software is copyrighted, not try frantically to stick labels like "anti-competitive behavior" where they don't apply.

Re:Monopoly or not.

[furball]

Yes, you should. Key word there being -use- and there is a difference between use and redistribute.

You mean like where you, at home, can modify OS X to install on a standard non-Apple PC, but if a company makes a derivative work and redistributes it much like how Psystar did? Huh. Imagine that.

Re:Monopoly or not.

[Monkey_Genius]

What the OP and others seem to fail to realize is that when you buy an Apple Macintosh computer -along with the copy of OS X installed- you own the hardware and only have a license to use the software -and that is restricted by the terms of the license to only Apple hardware. Nothing prevents you from running another OS on the hardware that you own. When you purchase a retail version of OS X, you are bound by the license terms to run OS X only on Apple hardware. To run it on any other hardware is in violation of the terms of that license. How is that in any way anti-competitive?

Re:Monopoly or not.

[RedK]

Too bad for you that tying in and of itself is not illegal nor anti-competitive, nor that you are in a position to deem it so like you say.

Re:Monopoly or not.

[furball]

Yes, but you bought the software. If you reject the software to get a refund, you'll need to send the entire packaging back. That includes the hardware. Oh you wanted to keep the hardware? I'm sorry. We can't process your refund. Have a nice day :)

Re:Monopoly or not.

[Draek]

Vertical integration is not illegal

Inform yourself.

It is true Psystar's main problem was modifying OSX to run on their hardware, which constitutes an unauthorized derivative work and as such copyright infringement, but that doesn't mean Apple's practices are in any way legal.

Also, remember that any clause in a license is valid only if it doesn't contradict pre-existing laws. You can't ask for your firstborn in a software license, you can't enslave the user, and you can't have the user agree to his murder for instance. It may not be the case in the US, apparently, but in a country that supports modifications in the name of interoperability as exempt from copyright infringement Psystar could've had a pretty strong case in there, regardless of what Apple's EULA may say. Pity the DMCA's interoperability exception seems to have been merely for DRM and not copyright itself though.

Re:Monopoly or not.

[jasonwc]

It's only anti-competitive if they have a monopoly in the OS market, which they do not, or alternatively, if it's considered an illegal tying arrangement. As for an OS monopoly, they hold 5% or less of the market which is clearly not a monopoly under US antitrust caselaw. As for tying, that argument only works if you can show that there is no benefit to be had through selling the hardware and software as one product.

The problem with your argument is that under current US law, it almost certainly wouldn't be considered an illegal tying arrangement. There is no evidence that the primary purpose of their tying software + hardware is to artificially prop up the price of either. They can make a plausible argument that having control of the hardware allows them to provide a more unified and consistent experience for buyers. With a small set of Apple-authorized hardware, weird incompatibilities that exist on Linux and Windows due to the large hardware-base they have to support, can be minimized or prevented entirely. There is some value-added by selling hardware + software together, and Apple can certainly argue that selling the OS alone will harm their brand name and reputation due to complaints from users using non-authorized hardware.

In addition, this has to do with distribution and not the end-user. You can go out and buy OS X and install it on any hardware you want. The case doesn't affect YOUR rights. Pystar illegally redistributed OS X by installing it once, and using cloned copies. This really has little to do with the freedom of the home user.

In any case, this is not illegal tying in the sense used by the U.S. antitrust law. BTW, "tying" is a per se violation of the Sherman Antitrust act. You don't see many tying cases, however, because there are generally good arguments why you would sell two seemingly separate products as one.

Re:Monopoly or not.

[Draek]

Let's see that clause stand up in a judgement, then we'll talk.

Re:Monopoly or not.

[jedidiah]

Pystar made the make of distributing a derivative work. They crossed the obvious legal line from "merely using".

OTOH, as long as they sell an unopened copy of the original they should not not be messed with either.

Copyright law should not allow for "artistic megalomania".

It doesn't matter if it's me personally or if it is some company that wants to sell Hackintoshes.

Re:Monopoly or not.

[furball]

People keep throwing out "should" all over this discussion. But no one ever explains the reason why things should/should not be a particular way. Very odd.

Re:Monopoly or not.

[jedidiah]

Yes. The fact that it seems "anti-competitive" is really quite irrelevant.

Apple is merely exerting rights over the customer that it should not have to begin with.

It's engaging in "artistic megalomania" and that is bullshit whether it's legal or not.

It's like that stupid crap the EU wants to impose on Canada wrt resale of art.

Re:Monopoly or not.

[jpmorgan]

No. You're confusing several concepts, and the GPL.

Yes, if you are a reasonable person and think that Apple's EULA should be ignored, then you should think the GPL version 3 should be ignored also. However, that does not mean you think the GPL version 2 should be ignored. And yes, a lot of people don't support the GPLv3 for this very reason.

The distinction is that the GPL, version 3, and Apple's license are USE licenses. The GPL version 2 is a DISTRIBUTION license. Distribution licenses have their legal force from the fact that software distribution requires copying, an action prohibited under copyright law without permission. The Linux kernel, for example, is licensed under the GPL version 2. You can use it without accepting the terms and conditions of the GPL version 2 all you want. You only have to accept the license if you wish to distribute it.

Use licenses, like Apple's EULA and the GPL version 3, are a lot more controversial... although it seems that since Apple's lawsuit against Psystar, /. has become much friendly toward them than it used to be. The legal logic behind a use license is that to use the software, it has to be copied into your computer's ram. Strictly speaking, use licenses SHOULD have no legal bearing in the USA, since US copyright law has an explicit exemption to allow necessary copying of software for the purpose of using it. However, the USA operates on a common law legal system, where judges defer to precedent over the law itself where possible. Use licenses, like Apple's EULA and the GPLv3, are only enforceable in the US because of bad precedent which, strictly speaking, goes against the law as it is written.

Re:Monopoly or not.

[nine-times]

Apple is not a software business, it's a hardware business (10% of their revenue is software and that includes all their high-end software packages and OS).

Well they're not exactly a hardware vendor or software vendor. They sell the integrate platform. Hardware and software.

As techies we're not used to thinking of desktops and laptops like that, but it's not that uncommon for other devices. As far as I know, Garmin doesn't license its GPS software to other vendors. Cisco doesn't license its software for use on other routers. Sony doesn't license the PS3 operating system for use on generic hardware, nor does Microsoft license the XBox 360 operating system. Nintendo doesn't license the Wii OS either. I don't know, but I don't believe TiVO licenses their software for use on generic hardware.

Re:Monopoly or not.

[UnknowingFool]

It's fairly standard that if you reject the product and want a refund, you must reject and return the whole product if you want the full refund. In some cases you may negotiate for partial refund of partial return but that's between you and the seller. If the seller wants the whole product for a refund, you either have to return the whole product or forego the refund. For example, you can't buy a new car, demand a refund, and give them just the engine back.

Re:Monopoly or not.

[MBGMorden]

Whether one likes Apple or not, they are within their rights to sell whatever they want with whatever restrictions on it they choose.

As a white male less than 175 years ago if I needed extra help around my property it was within my rights to purchase another human being to do those chores.. However, we saw that such a right was not just and legally corrected the situation.

That's the way things change for the good. We debate whether or not things are legal but even if they are then if they are still perceived to be WRONG then we work to change the law. As such we can still discuss the situation - I'm sure many feel that if it IS Apple's right to sell it with such restrictions then that too is unjust and therefore that right should be legally removed.

Re:Monopoly or not.

[MBGMorden]

Including one product with another is not.

I don't think anyone is faulting Apple for including one product with another.

Deliberately trying to control a product that you sell after the sale though so as to state that it can't be used with a competitor's product IS anti-competitive. If Ford sold replacement bucket seats that were really nice, but wanted to sue anyone if they happened to make some adapters and bolt them into a Chevy, how well do you think that would go over?

Re:Monopoly or not.

[hedwards]

Actually, Apple doesn't have the right to determine what it is you do with the product after you buy it, so long as you don't produce more copies of it than you've bought. In fact once you've bought it you own the copy, and they don't get to say much about what you do with it, including reselling the copy to somebody else.

Apple has the copy right, as in the right to create new copies. The ability to insert language into the EULA is not the same thing as having the right to enforce.

Additionally, in cases like this where it's clear that the consumer is being harmed by the practice, it's not necessarily so cut and dry that Apple is within it's rights to behave in this fashion. The refusal to allow people to get a refund on the OS if they just want the hardware is definitely an abuse of licensing.

Re:Monopoly or not.

[rdnetto]

It doesn't matter what the EULA says, because you are declining it. The EULA can only bind you if you accept it. Besides, I'm pretty sure EULAs can't affect hardware anyway, since it is sold and not licensed (unlike software).

Re:Monopoly or not.

[E IS mC(Square)]

>>Apple is not Microsoft.

Not at all. In fact, they are worse than MS.

Re:Monopoly or not.

[Anonymous Coward]

You're glossing over something. Apple doesn't get to pick all the terms. They can't tell me not to run it on a Dell any more than a cd publisher can tell me I'm not allowed to play their audio cd on anything but a sony player. You can write "you must murder your first born" in the EULA, doesn't make it binding.

Copyright law prevailed here over someone who was modifying their software and reselling it.

Re:Monopoly or not.

[Psychotria]

No, they don't. If they sell me the software then I can do whatever the heck I want to with it. Copyright does NOT extend to cover what I can do with a legally purchased item. I do not CARE what the EULA says, because it's not legally binding. To say that Apple has the right to tell me what I can do with my legal purchase is akin to a book publisher trying to impose on me that I cannot read their book in the toilet.

Re:Monopoly or not.

[Anonymous Coward]

The copyright holder (of any kind of work, not just software) is given exclusive rights to license that work for others to use, under the terms of their choice. Apple's "terms of choice" are, you'll run OS X on our hardware and no one else's. If you don't do that, you're committing copyright infringement by using their work without their permission.

Bullshit. Apple, as the copyright holder, is given exclusive rights to license that work for others to reproduce, under the terms of their choice. They have no fucking say over how it's used. Copyright is only infringed when the subject material is copied

Re:Monopoly or not.

[ihuntrocks]

I do have personal hatred for x86 that runs pretty deep. There's not a single bit of code that I ever run that requires it, so I can safely move away from it. The Cell Cards are nice, but I can get more pervasive use out of the Cell architecture if I go with the PS3 set up. It's easier to do GCC flags for an all Cell set up instead and get good use out of it for everything I happen to run (so long as I can "hide the latency" from the applications) rather than having to patch things together to make good use of the cards. Plus, my latency will be lower anyway than having to rely on transfer along the expansion card bus. I really just want to build a neat little toy. You should check out the offerings from Fixstars Solutions http://us.fixstars.com/ for their PS3 clusters. A quick Google search should turn up some good results on what they've been used for.

Honestly, I just want to do what everyone in the industry should have done at least a decade ago (if not more) and wave goodbye to the x86.

Re:Monopoly or not.

[Richard_at_work]

The TPM chip is not guaranteed hardware on a Mac - for example, it existed in the initial Core based Macs but was removed from initial Core2 based Macs onward and I have yet to see a new Mac with one.

Re:Monopoly or not.

[cbhacking]

Emphasis mine:

The copyright holder (of any kind of work, not just software) is given exclusive rights to license that work for others to use, under the terms of their choice.

I'm afraid that's incorrect. Copyright law has nothing to do with licenses for use. Copyright, as the name helpfully implies, involves the right to make copies. The copyright holder is the entity with, as you put it, exclusive rights to license that work for others to copy, ender their terms of choice. For example, the copyright license on OS X (as a whole) boils down to "you may not make copies of this software" i.e. you (as somebody other than the copyright holder) have no rights to make copies.

This is the problem that Pystar ran into - they were bundling (modified) copies of OS X (pre-installed on their systems), which they didn't have a license to distribute. The whole thing about Apple's "only use this software on Apple-branded equipment" was irrelevant to the court's final decision, since it was a copyright case and copyright law doesn't apply to usage.

Re:Monopoly or not.

[Theaetetus]

Apple doesn't give a shit if you install OSX on a Dell. Apple only cares if you install it on a hundred dells and sell them as "OS X" computers.

notice the difference.

No. I don't actually.

I could see the difference if I bought one copy of OSX, and sold it on 100 dells. That would be a clear copyright violation. But if I buy a 100 copies and resell them bundled with 100 dells, what exactly is wrong with that?

If I go to a gallery, buy ten art prints, are you suggesting I can't try and resell them for a profit? Hint: buying 10 copies, and then reselling those 10 copies is entirely legal.

Suppose the art gallery also will frame the prints for an additional fee... but instead I take the ten prints to a different cheaper frame store and buy ten frames, put the prints in the frames, are you seriously suggesting that now I can't turn around and resell the framed print for a profit? If not, exactly why not?

So what makes buying a 10 copies of OSX, sticking them into 10 Dells and reselling them wrong?

Because they don't "buy 10 copies of OSX, stick them into 10 Dells, and resell them." Tell you what - try it. Buy a Dell. Buy a copy of OSX. Put the DVD in the drive and have it run.
Wait, it doesn't work, you say? You have to modify the copy of OSX and replace certain libraries? You have to create a derivative work without permission of the copyright holder?

Ah, well, that's still fine. Perfectly legal to do that for your own use. It's arguably implied by the Betamax doctrine.

Oh, wait, now you want to sell your derivative works without permission of the copyright holder? Well, that's copyright infringement.

Re:Monopoly or not.

[couchslug]

We can also discuss why we should not want products produced by corporations that oppose the rights some of us claim, and that rather than trying to modify their behavior in order to reward them with money...we should reject them entirely and seek

------------- Free and Open ----------- solutions from people who are NOT our enemies.

"Ohh, puleeze Uncle Sugar, make the nasty man sell soft I don't need but DO WANT on the terms I want him to sell it."

Howabout viewing BOTH Apple and Microsoft as amoral empires we shouldn't be handing money to in the first place?

How dare anyone who supports software freedom buy software from these companies?
How dare they want to help propagate such software either by legal purchase or via warez?

Everyone supporting efforts to produce generic OX X boxes should admit that it's not about freedom, it's about "I want the shiny".

All OEM's do this

[DJRumpy]

Buy a PC from Dell, or HP with Windows on it, and you can't legally transfer that OS to another PC. All OEM's do this. Most hardware manufacturers bundle their own OS with their hardware, from cars, microwaves, cable boxes, routers, mp3 players, DVR's, etc. Just because you may be able to get whatever software they bundle with their hardware working on some other piece of equipment, doesn't mean they must then sell you a license to do so. You can't force them to produce, manufacture, or license something against their will.

As to your point of tying Mac's to OSX, wouldn't the same apply to every other PC Manufacturer out there? Take laptops for instance. They bundle mobile graphic drivers specific to the hardware. It isn't necessary to run them, as any stock driver would work, but they purposely prevent you from using generic nVidia drivers for instance. You can't force HP to release their HP Customer Support software to Dell because it runs on an Intel Architecture. It might piss someone off, but you have no right to dictate what someone puts on their hardware, or who they decide to license their software to, as long as it isn't anti-competitive. Don't like it? Don't buy it. It's just that simple. There are too many alternatives out there for this to be any sort of anti-competitive stance. Microsoft, who already has a vast majority of OS desktop and laptop market, basically tried to force vendors to do their bidding by leveraging their market dominance. They were caught, and had their wrist slapped as a result.

Apple in contrast, is a little guy by comparison. Don't like something they are doing? Don't buy their products. There are a multitude of hardware manufacturer's out there, and a multitude of OS and OS variants, some free and some at a cost.

It's Apple's software, they can license it to whoever they choose. Would they come after Joe Windows User who decides to buy OS X, hack it, and install it on his Dell? Unlikely. If Joe then decides to do this and start selling his PC's for a profit as "OpenMacs"?

You betcha...

Heard of a lease?

[tepples]

I'm pretty sure EULAs can't affect hardware anyway, since it is sold and not licensed (unlike software).

Hardware can be licensed. It's called "leasing". As long as the terms of sale are available to read before the sale, it doesn't matter whether it's hardware or software.

Sonny Bono and the 95-year lease

[tepples]

All that is needed to make software leases legitimate are two things:

(1) That they be for a limited time

Easy: the lease expires at the end of the 95th year after the program's first publication, at which point the lessee is obligated to return the media to the publisher. The U.S. Supreme Court has already called this a limited time in Eldred v. Ashcroft.

(2) That the physical media remain the property of the lessor

In other words, the model Blockbuster uses, except for a longer rental period. I wonder why copyright owners haven't already tried doing this. Another possibility is to encrypt the executable and lease the right under 17 USC 1201 to decrypt it.