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.

[RedK]

It's flamebait because tying is not anti-competitive in and of itself, nor should it be illegal. Vertical integration of hardware and software is the big-Iron Unix business model and Apple is simply applying it to consumer computers. 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).

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.

[furball]

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.

Is the copy that a consumer can purchase independent of Apple hardware a full license or is it only an upgrade license? Apple doesn't put too many restrictions at installation time to make it seem like it's an upgrade but they can certainly make an argument that all boxed copies of its software are upgrades. If that's vague, then all they have to do is change the packaging to make it clearer. Such a change would have no impact on the customer experience. Then the argument that you can buy a full license of Apple's OS independent of its hardware goes out the window.

In fact, here's the page from Apple on their online store. If you kindly click on the link that says "Find out which version you're using" you'll discover that there are two options for upgrade: from Leopard or from Tiger. I've looked all over their online store and couldn't find a full license of Snow Leopard sold anywhere that didn't require the consumer to own a previous version of OS X.

Perhaps you can show me where you are able to find a full license of OS X that is not an upgrade.

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.

[furball]

What Apple needs to do is set the price of OS X to be $2k. The OS costs $2k. The hardware is free. Have a blast kids.

Re:Monopoly or not.

[dingen]

How is creating your own platform anti-competitive? Why shouldn't Apple be allowed to create a product how they see fit and let the market decide if it's worth purchasing? Do you also think all those home computers from the '70ies and '80ies were engaging in anti-competitive behaviour by tying their OS'es to their hardware?

Re:Monopoly or not.

[fidget42]

Really what needs to happen is the courts need to say that is it legal to A) modify a legitimately purchased OS to run on whatever hardware B) Allow licenses to restrict what hardware you run things on only in number of quantity (for example, Apple could sell you one license for OS X to be installed on one machine, if you install it on 5 you are breaking it, but if you install it on one PC, it would still be legal. and C) allow for companies to sell machines with OS X on them so long as OS X was legitimately purchased by Apple and there is a license for that one machine.

So, if I acquire a piece of open source software, I should be able to use it however I want? That would mean that any company could ignore the GPL. Apple's OS X license (that you can only run it on Apple hardware) is just as valid as the GPL, even if you would like to ignore it.

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.

[Darkness404]

So, if I acquire a piece of open source software, I should be able to use it however I want?

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

That would mean that any company could ignore the GPL.

The GPL gives you the complete freedom to use a program how you see fit.

The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.

Heck, the GPL lets you modify source within a corporation

No, in that case the organization is just making the copies for itself. As a consequence, a company or other organization can develop a modified version and install that version through its own facilities, without giving the staff permission to release that modified version to outsiders.

from the GPL FAQs

The GPL only restricts what you can do with A) a modified program or B) when you redistribute the program. The Apple license restricts what you can do -with- the program which is a whole lot more than just saying what you can do to redistribute or modify the program.

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.

[RedK]

The thing to note here also is that Psystar were modifying Apple's base image and redistributing it without a license to make a derivative work and to then distribute the results. The EULA was only 1 part of the case, they were very on the way to be found guilty of copyright infrigement when they decided to settle with Apple. Not to mention the DMCA claims because they circumvented Apple's protection measures (that kext I listed earlier).

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.

[rolfwind]

Monopoly or not, palm os is engaging in anti-competitive behavior by tying it's OS to it's hardware.

Monopoly or not, mercedes Benz is engaging in anti-competitive behavior by tying it's software to it's hardware.

Monopoly or not, cisco is engaging in anti-competitive behavior by tying it's firmware to it's hardware.

See how silly your argument becomes when you take out the most important aspect of anti-trust law? If it's a monopoly or not.

Businesses by their nature act anticompetitive. Put simpler, competitors act anti-competitive. Big shock.

Apple is not Microsoft. Software is not it's business, software/hardware integrated in one package is. Some people like Porsche engines but don't like their cars. Let's say porsche sells replacement engines cheap (low margin) because Porsche owners race their cars and burn them through fast. Taking advantage of this fact, a company opens up that offers to sell you Porsche engines in a cheap car like a Hyundai. Porsche should be happy but it's not because they no longer have significant competetive advantage (their engines) to lure customers but actually lose some who are lured by Porsche power in a cheaper car. Plus the engines in nonporsches also generate more service calls, support that costs $ on small margin product.

Now, to combat this, porsche, in the next gen models, installs a very proprietary and nonstandard coupling to the transmission they don't license out to anyone else.

Now, most would say, including I, that you can do with the engines you buy as you please, but can you really force them to use a standard coupling as a non-monopoly?

Re:Monopoly or not.

[RedK]

Actually, no you can't. Even today that the Mac hardware is paid for and not given away with the OS like the previous poster suggested, the EULA states plainly that if you do not accept the EULA and that the software product shipped pre-installed on the computer, you must return the whole package to Apple (quoted directly from the OS X license agreement) :

FOR APPLE SOFTWARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE IN ORDER TO OBTAIN A REFUND.

http://www.apple.com/legal/sla

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.

[jedidiah]

If the license is void then that just leaves the usual "first sale" sort of stuff you get with a Book.

The notion that any creative work requires a license merely to "use" is assinine and only serves to increase the ability of corporations that are larger than many nations to fuck with individuals. It doesn't even benefit the rank and file artist.

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.

[dingen]

Yes, because by making IE part of Windows, Microsoft was abusing their monopoly in the operating system market to get another monopoly in the browser market. And to make matters even worse, Microsoft created their own "standards" on how HTML, CSS and Javascript functions in their browser, so websites created for IE would not work properly in other browsers.

Abusing your monopoly is anti-competitive. Including one product with another is not.

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.

[peragrin]

Notice how apple is only going after pystar, not the homebrew hackintosh community.

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. if you want a hackintosh go ahead and do it. just don't do it for a profit.

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]

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.

I think the move to Intel was necessary for Apple from a logistical perspective. It's not that PowerPC isn't a bad platform; it's that no one in the business makes a PowerPC chip for consumers. PowerPC chips are more designed for workstations and servers than desktops. Apple had the same problem with IBM as it had with Motorola. The PowerPC they required had to be a custom chip in order to handle things like multi-media. Even if Apple ordered millions of chips a year, Apple would only be a small customer to either company.

These days no company wants to keep a large inventory. Apple would only order as many chips as it thought it needed; Motorola and IBM would only make so many. If Apple required more, it would have to order more and IBM and Motorola would have to re-arrange their manufacturing schedules to accommodate. The problem was Apple could never order enough. They were always short. IBM and Motorola would never make a large excess of Apple's chips because if Apple didn't buy it, they couldn't sell it to anyone else.

Thus Intel came into the picture. For Apple, ordering more chips from Intel was logistically much easier since they were no longer ordering a custom part; they were order more of a stock part that Intel makes anyway. And for Intel making extra chips in anticipation of Apple's increases wasn't a big deal. If Apple didn't buy the extra, Dell, HP, Lenovo, etc would buy the extra.

So if you're Apple, do you stay on a platform that is better but you can't get enough parts or do you move to a platform which is not technically better but logistically easier? From Apple's customers' perspective, most of them didn't care which platform.

Re:Monopoly or not.

[RedK]

From your own link (emphasis mine) :

Tying is the practice of making the sale of one good (the tying good) to the de facto or de jure customer conditional on the purchase of a second distinctive good (the tied good). It is often illegal when the products are not naturally related

I think it would be hard to argue that a computer and an operating system are not naturally related. Maybe you need to rethink your source material.

Re:Monopoly or not.

[deepershade]

I was going to post a witty insult possibly indicating that you have no social/sex life and attempt to gain status of your own importance by buying anything with a brand logo on it,
then I would question your sexuality/intellect in some snappy manner which is both hilarious and also manages to remain the safe side of the politically correct barrier, thus avoiding any down modding.
I would probably then make a few logical statements pointing out the inate error of your views before rounding up with either a killer blow meme or maybe a jab at how small your man hood is but to be perfectly honest, I can't be arsed, so I'll simply close by saying that you sir can eat a dick pavlova.

Re:Monopoly or not.

[DougReed]

All of this is completely irrelevant. The parent post is correct. Whether one likes Apple or not, they are within their rights to sell whatever they want with whatever restrictions on it they choose. The hardware does not have to be unique, it just has to be sold as a single package. A refrigerator if you will It only becomes anti-competitive when they tell me I can only use it to access the Apple Website. Even that they could do as long as they made it clear that was all it did. Whether the consumer buys what they choose to sell is consumer choice. The difference with Microsoft, and the reason they got into trouble, was because they did not own the PC. The PC was designed to run whatever system you wanted, and they took steps to block that capability. Microsoft could just as well sell a standard PC with a Microsoft logo on it and forbid you to boot anything but Windows on it. The problem is they then have to compete in a commodity market. A problem Apple does not have.

Re:Monopoly or not.

[kobaz]

the software creator/owner gets to choose the terms under which the software may be used

This is not the case. Nor should it be. The software creator/owner gets to choose how the software is redistributed.

As a software developer, I have no legal right to prevent you from using my code for evil purposes for instance. But I can define limitations for redistribution, which is what apple did. Apple can't legally prevent people from installing osx on a dell, but they have all the legal rights to prevent someone from selling osx in a fashion that they don't agree to.

In terms of use... I have the right to not sell you the software, if I believe that you will use it for evil. But if you buy it, you can do whatever the hell you want with it for your own use. As soon as distribution is involved, the license/eula applies.

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.

[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.

[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:Will apple try the same carp on iphone unlocks

[ColdWetDog]

Will apple try the same carp on iphone unlocks soon? jailbreaks?

Probably not a carp. They're not a very sexy fish. Apple would likely slap jailbreakers with a tuna or salmon.

Re:"Their" rebel EFI

[couchslug]

"I seem to recall reading that they are actually ripping off an EFI-emulation boot loader that was open source, removing attribution, violating the license, and claiming it as their own. If this is true, they should not be given the dignity, in press articles or otherwise, of having it called "theirs"."

http://www.geektechnica.com/2009/10/psystar-steals-open-source-bootloader-and-sells-it-for-50/

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...

Re:Yes!

[Anonymous Coward]

In the same way that Psystar modified and redistributed OS/X in a manner inconsistent with the license?