Mac Clone Maker Saga Ends As SCOTUS Denies Appeal

CWmike writes "The four-year-old saga of Psystar, a Florida Mac clone maker that was crushed by Apple, ended Monday when the U.S. Supreme Court refused to hear its appeal of a lower court ruling. The decision to not consider the case (download PDF) upheld a ruling last September by the U.S. Court of Appeals for the Ninth Circuit. That ruling confirmed a permanent injunction against Psystar that prevented the company from copying, using or selling OS X, and blocked it from selling machines with Apple's operating system preinstalled. 'We are sad,' said K.A.D. Camera of the Houston firm Camera & Sibley LLP, in an email reply today to a request for comment. Camera represented Psystar in its bid to get its appeal heard. 'I expect the Supreme Court will eventually take a case on this important issue.' Last year, Camera had said, 'This is far from over,' after the Ninth Circuit's decision. Apparently, it is."

Comments

Certainly won't stop.....

[i_want_you_to_throw_]

Hackintosh efforts by hackers though. It was a noble effort Psystar!

Meh

[Anonymous Coward]

Even if they had a case they still stole copyrighted code from OSx86 and Rebel EFI was stolen from Boot 132 EFI.

Boo hoo, they're dead.

Not related

[daveschroeder]

Hackers/hobbyists have zero to do with a company selling a product which affirmatively violates another company's software license.

Re:Not related

[Enderandrew]

Should Apple have the right to demand the software can only run on their hardware?

Remember when Atari tried blocking third-party software from their hardware and a judge ruled that they must allow for third-party use of their hardware?

Re:Not related

[idontgno]

Remember when Apple tried blocking third-party hardware from their software and a judge ruled that they can?

Sometimes you get the bear. Sometimes the bear gets you. And wishing for consistency among different actions at law with only surface similarities is much too much to ask for.

Re:Not related

[Aeros]

Of course they have the right. It's their product. No matter how much the majority of the people hate this and have to pay a premium for their hardware products...but they do have the right to do so.

Re:Not related

[brian_tanner]

You doubt that Apple would sue the pants off you if you did the same thing in your basement and posted instructions on a website regarding how you did it? Go ahead, try... see what happens.

Yeah. Like this? http://wiki.osx86project.org/wiki/index.php/Main_Page

Re:Not related

[uniquename72]

You doubt that Apple would sue the pants off you if you did the same thing in your basement and posted instructions on a website regarding how you did it? Go ahead, try... see what happens.

What happens? Nothing.

Apple's problems wasn't that they were doing it; it's that they were selling it.

Re:Not related

[Cinder6]

Should Apple have the right to demand the software can only run on their hardware?

Remember when Atari tried blocking third-party software from their hardware and a judge ruled that they must allow for third-party use of their hardware?

I'm pretty sure that's not the same thing. Apple is saying that only they have the right to build machines that can run their software, not that you can't write/sell software to run on their machines.

Re:Not related

[gnasher719]

Remember when Atari tried blocking third-party software from their hardware and a judge ruled that they must allow for third-party use of their hardware?

This is all about copyright. Copyright allows the owner of the copyright to allow or disallow copying of their software, as they see fit. Note: Copying of _their_ software. That is what Apple does. They allow you to use _their_ software, MacOS X, on Apple branded computers, and not on other computers. I don't know about that Atari case, but what you say means Atari tried to prevent you from using someone else's software. Not _their_ software.

If Apple told you that you cannot run Windows, or Linux, on a Macintosh, that would be a completely different matter. But anyway, you ask this question, _after_ a court decided that Apple has that right, and another court decided, and SCOTUS denied an appeal about it?

Re:Not related

[Enderandrew]

It was Apple's product, but once you purchase it, it becomes your product.

http://en.wikipedia.org/wiki/First-sale_doctrine

In theory, first sale doctrine says that once you purchase the software you should have the right to do with it what you want.

Judges have made conflicting rulings in this area. You can apparently ignore the DMCA and jailbreak your iPhone if you want, because you own the phone and you have the right to try and unlock more features with the hardware if you want. Some judges have said that mod chips on consoles are legal in and of themselves. They are only illegal when you pirate games.

Here, judges are ruling that the DMCA trumps consumer rights.

Re:Not related

[gnasher719]

Apple's problems wasn't that they were doing it; it's that they were selling it.

Not so much that they were selling it, but the fact that they insisted very, very loudly that they had the right to do so, and that Apple could do nothing about it. Apple really had no choice but to sue them. In the Hackintosh community, they all know that what they are doing isn't quite legal, but they also know that Apple will ignore this (since little damage is done, and there is probably a knowledgable bunch of people who will be assisting Apple's customers with problems when the need arises. I bet many Hackintosh users take their Grandma straight to the Apple Store when she needs a computer). The only thing they need to do is behave in such a way that Apple _can_ ignore them.

Re:Not related

[Enderandrew]

That's my point. By placing the DMCA above all other relevant laws, Atari v. Activision would be ruled differently. I don't like this new precedent and what it bodes for the future.

Re:Not related

[wierd_w]

What about the atari cartridge compatibility with colecovision's "module #1" expansion?

That's practically a dead ringer.

Colecovision created a hardware emulation module for their technologically superior console that enabled it to use atari 2600 rom carts, thus increasing the available software library immensely.

Atari tried to sue coleco, but lost, since the entire 2600 could be produced using off the shelf parts. (Sound familiar?)

Stanford mentions that this case was more a battle of clones, rather than emulation, and mentions that it should not be employed as precedent in cases surrounding emulation. However psystar is not emulating a modern mac at all. It is running on bare metal, on a clone.

For all intents and purposes, the cases are remarkably similar, with the exception of the DMCA.

However, it was my understanding that psystar was creating clones before the DMCA was enacted, so surely some form of estoppel qualifies in this particular case?

Re:Not related

[Lunix Nutcase]

This had nothing to do with the DMCA. Psystar was violating the license to the software. This is no different to a hypothetical OEM being sued by Microsoft for violating the license to their copies of Windows. First sale doctrine doesn't allow you to violate the EULA.

Re:Not related

[MightyYar]

but this is almost the definition of monopolistic behavior.

They only have like 5% of the market?

Only Apple can sell OSX, and they're using the software monopoly to artificially prop up their hardware division.

Or, they only make OSX because they want to sell hardware. There is absolutely nothing wrong with that.

My problem with the decision is that it defies my concept of contract law... I always thought that to have a valid contract there had to be consideration on both sides - I get something in exchange for something else. In this case, I get nothing. I hit "I Accept" on the license agreement and Apple gets all of these extra rights and I get... nothing. At that point, I've already purchased the machine. I presumed these contracts were worthless, but this decision changes that.

Re:Not related

[compro01]

First sale doctrine doesn't allow you to violate the EULA.

That's pretty much the entire bloody intent of the doctrine.

See Bobbs-Merrill Co. v. Straus.

"The price of this book at retail is $1 net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright" was tossed out as an invalid use of copyright. An EULA is no different.

Re:Not related

[bws111]

You do get something when you click "Accept", you get the ability to use the software.

A license is not a contract. A license is pretty much a one-way document from one party granting certain permissions to a second party that otherwise they would not have. The license people are most familiar with of course is your driver license. Did you get to negotiate the rules of the road with the state when you got your driver license? Of course not - the license is a one-way document given to you by the state. Without such a license you have no permission to drive on public roads. With the license (which comes with a whole bunch of restrictions and ways the license can be revoked) you can drive on public roads.

With software, you do not own the software (even with FOSS). Since it is not 'yours' you have no permission to do anything with it by default. If you want to use the software, you can get a license to do so. That is not a contract.

Re:Not related

[bws111]

Because software is never sold, only a license to use it is sold.

Re:Not related

[MightyYar]

But there is something very odd about a business model that becomes illegal simply by growing in market share.

That's the norm, though. Microsoft was perfectly in the right when they would pay partner companies to be exclusive MS vendors... until they became a monopoly.

I'd argue that Apple's model is the normal model and Microsoft's was the anomaly. The Amiga, Atari, Commodore - heck even the IBM PC prior to Compaq... all of these followed the proprietary model. Even MS follows this model in the console game market. But no one accuses the XBox360 of having a monopoly over anything.

Finally, all of this seems to be moot now - as of Lion, it seems that Apple no longer sells standalone copies of their OS. Pystar could not exist one way or another since they wouldn't have any (legal) way to buy just the software.

Re:Not related

[bws111]

A book (the physical object) is not covered by copyright, therefore attempting to restrict sales of books can not be done by using copyright. The copyright holder would however be perfectly within their rights to say to a publisher 'you may not give reproduction rights to anyone for less than $1 a copy.

This however has nothing to do with this case, as Pystar was not simply reselling the CD the software came on, they were installing it.

Re:Not related

[v1]

Remember when Atari tried blocking third-party software from their hardware and a judge ruled that they must allow for third-party use of their hardware?

Hardware must allow 3rd party software to run on it. That was the Atari thing.

Now turn that 180 degrees around with: Software must allow installation on 3rd party hardware. That was the Pystar thing.

So they couldn't be more opposite issues if they tried. The Atari issue has no relevance whatsoever here.

Though I don't like software licenses. But unfortunately they are currently allowed. I don't like being told what I can do with software I buy any more than being told by Ford what roads I'm allowed to drive my truck on. But right now physical goods are not so easily licensed but software is. Pretty much all software is licensed because it can be, and grants additional rights to the producers. They can either take the free cookies or not, and naturally most businesses will.

Pystar was encouraging... no, they were instructing their customers to violate the OS X license agreement, and thus break the law. That's what got them smacked down.

I'd like the licensability of software to be outlawed personally. IMHO it's just the producers trying to "have their cake and eat it too", they want you to pay them for something, but then not GIVE it to you (retain rights over it) because that will help them make more money off you or someone else later.

Here, I license this cake to you for $15. But on condition that only you can eat it. If your friend is hungry, you're not allowed to give him a slice, it's not really your cake, I'm just licensing it to you. If at any time you decide you don't like those terms you can either destroy the cake or return it to me.

Or I'll license you this wrench. You can use it forever, and I'll even let you give it away, but you can't loan it to your friend to work on his car, he'll need to license another wrench from me. Think that's funny? Talk to your mechanic about his car computer testing unit. It's already reality. And those little buggers are expensive too.

I'm surprised that BOOKS aren't licenseable right now. There's not a lot of difference between them and software. They're both just information on media. I could totally see a society where you weren't allowed to sell a book. But already we can't copy too much of it, so we're already on the path.

God I hate licensing.

First sale doctrine?

[Enderandrew]

This gets me that first sale doctrine doesn't matter. The DMCA (which is overkill and bad legislation) takes precedence. The Psystar case reminds me of the Atari ruling, when Atari didn't want to allow third-party developers to make games for their console. Imagine if there were no third-party developers today. If Psystar legally purchased OSX software licenses, why shouldn't they be able to legally resell them with hardware? We have judges protecting a monopoly and frankly I don't understand it.

Re:Too bad, really

[zonker]

Their bootloader code was stolen from two open source projects which they repackaged and relabeled without attribution or source. That's pretty shitty IMHO.

Re:Too bad, really

[maccodemonkey]

I never saw what Psystar did that was actually wrong. They bought copies of software, installed them on machines, then sold those machines.

Apple doesn't sell fully licensed copies of OS X. They only sell upgrade copies. And the only way to get your initial copy of OS X is to buy a Mac. You can buy it in a box at the Apple store, it's still only an upgrade copy.

It would be like if a Windows OEM was buying upgrade only copies of Windows, hacking them onto blank machines, and then selling them.

People may not like it, but that's the way OS X is licensed.

How is this any different

[future assassin]

then buying an engine from ford and sticking it into a kit car and re-selling it as your own brand name car. Oh yah forgot this involves that magical thing called software which when you deal with you have to throw out all common sense.

Re:Too bad, really

[Just Some Guy]

Stop claiming that you 'buy' a software product - you don't.

I'll stop "claiming" that I buy copies of software when the vendors stop telling me that I do. Google for "buy windows 7" and see that the first links are to "Buy Windows 7 or upgrade to another edition", "Buying Windows 7: top questions", "Find great prices & selection on Microsoft Windows software; shop & buy Windows 7 Home Premium, Windows 7 Professional, & more." with a banner ad reading "Buy Windows® 7 Now - Fast, Easy Download. Official Site.". You're awfully certain of your specious hypothesis given that Microsoft themselves contradict you.

Try the same experiment with "buy autocad", "buy photoshop", and... wait for it... "buy os x". None of those companies say "buy a limited, EULA-bound license to use $foo as we see fit!"

Re:Too bad, really

[Dynedain]

Wrong. Apple clearly sold both Snow Leopard in 2 forms. Full license ($129) and Upgrade from Leopard ($29).

Previous to that, Apple did sell full boxed licenses. There was no "upgrade license" versions for anything other than machines that shipped around the same time as the OS release.

Re:Too bad, really

[maccodemonkey]

Wrong. Apple clearly sold both Snow Leopard in 2 forms. Full license ($129) and Upgrade from Leopard ($29).

Previous to that, Apple did sell full boxed licenses. There was no "upgrade license" versions for anything other than machines that shipped around the same time as the OS release.

No, that's wrong. Apple sold two licenses:
1) A license if you owned any previous version of Mac OS.
2) A license if you owned the preceding version of Mac OS X.

There is no "license if I never owned Mac OS on this machine." Apple doesn't sell any machines without Mac OS, so that wouldn't make very much sense, would it? That's why it mentions all of this in the legal agreements with Mac OS X, which everyone likes to hand wave and ignore, because hey, you're willing to be a lawyer when it comes to buying a "full" copy of OS X to be "legal", but at the same time totally willing to ignore the EULA and define "full" with your own definition.