Psystar's 54 Page Answer to Apple's Lawsuit with Counterclaim for Violation of ...

[Sun Baked]

Well Psystar's answer has showed up finally on justia.com

The 54 pages are here.

ANSWER to Complaint with Jury Demand (pdf) (http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv03251/204881/12/0.pdf) COUNTERCLAIM FOR VIOLATIONS OF THE SHERMAN, CLAYTON, AND CARTWRIGHT ACTS, AND STATE AND COMMON UNFAIR COMPETITION LAW against Apple Inc. byPsystar Corporation. (Springer, Colby) (Filed on 8/28/2008)

Think this might work if you don't want to download the pdf.

http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv03251/204881/12/

[CWallace]

Well they deny modifying the code, so I guess it will be up to Apple's legal software forensics team to determine the truth of those claims.

[Sun Baked]

The also deny that the Mac OS flavors constitute "an original work of authorship" "constituting copyrightable material" -- ouch.

[xUKHCx]

Page 26 is where it gets interesting (seriously)

The First Claim for Relief of this Counterclaim is brought pursuant to 15 U.S.C. § 1 (the Sherman Act) to seek redress for APPLE’s illegal tying of the Mac OS to Apple-Labeled Computer Hardware Systems as those products and markets are defined below.


The Second Claim for Relief of this Counterclaim is brought pursuant to 15 U.S.C. § 2 (the Sherman Act) to seek redress for APPLE’s attempts to maintain its monopoly and control prices in the Apple-Labeled Computer Hardware Systems submarket and to destroy competition in the Mac OS Capable Computer Hardware Systems market as those markets (and submarkets) are defined below.
*

The Third Claim for Relief of this Counterclaim is brought pursuant to 15 U.S.C. § 14 (the Clayton Act) to seek redress for APPLE’s illegal requirements of its customers to exclusively deal with APPLE as it pertains to the Mac OS and Apple-Labeled Computer Hardware Systems in domestic, interstate commerce.



*When you break down industries to such levels (Apple-Labeled Computer Hardware Systems submarket) surely they all have a monopoly in some sense.

If somehow this goes through surely it will be the end of apple as we know it.

[nick9191]

What a load...

PSYSTAR, on information and belief, alleges that APPLE likewise misuses its copyrights with respect to prohibiting Mac OS Capable Computer Hardware System manufacturers from manufacturing and selling computer hardware systems that would allow for installation, use, and running of the Mac OS.

PSYSTAR, on information and belief, alleges that unless restrained by the Court, APPLE will continue to attempt to maintain its monopoly power in the Apple-Labeled Computer Hardware Systems submarket to the exclusion of other manufactures including manufacturers of Mac OS Capable Computer Hardware Systems by and through anticompetitive and unreasonably exclusionary conduct including but not limited to those allegations set forth in the First Claim for Relief above as well as the misuse of its copyrights.

PSYSTAR, as a result of APPLE’s illicit behavior, has been damaged and requests compensatory and punitive relief as otherwise governed by the California Civil Code in addition to a declaration as to APPLE’s illicit behavior.

[jessica.]

I seriously want to see how Apple proves they modified the code.

As for this somehow proving or introducing the idea that Apple is a monopoly, I'm not sure that's going to happen any time soon.

[macenforcer]

oh man, the nails in the coffin. :eek:

[NT1440]

:eek:

what?! apple has a monopoly on apple branded computers!?!?

:rolleyes:

[decksnap]

"Apple-Labeled Computer Hardware Systems submarket"
:rolleyes::rolleyes::rolleyes::rolleyes::rolleyes:

I'll have some of those mushrooms.

[nanofrog]

I seriously want to see how Apple proves they modified the code.
So do I. :p
As for this somehow proving or introducing the idea that Apple is a monopoly, I'm not sure that's going to happen any time soon.
I doubt they will pull this one off.

It will be interesting to see the end results though.
Anyone have a realistic estimate how long the proceedings will run?

[NT1440]

So do I. :p

I doubt they will pull this one off.

It will be interesting to see the end results though.
Anyone have a realistic estimate how long the proceedings will run?

realistically, this will probably drag on for a year or two until pystar is either bankrupt (good riddance) or by some outrageous decision, they win

[Shadow]

:eek:

what?! apple has a monopoly on apple branded computers!?!?

:rolleyes:

Yeah, dur, cos, like, Sony doesn't have a monopoly on PS3s...
;) :rolleyes:

[bbotte]

So do I. :p

I doubt they will pull this one off.

It will be interesting to see the end results though.
Anyone have a realistic estimate how long the proceedings will run?

Long enough that Prystar will be backrupt from the legal fees.

[IJ Reilly]

It's the Sgt. Shutlz defense. I know nussing!

They make a number of arguments which are ludicrous on their face (and will probably be struck down immediately by a judge), but I think the key bit of silliness is this thing they call the "Mac OS Capable Computer Hardware Systems market." Of course this market is complete whole cloth. In antitrust law, the definition of the market is critical -- and you can't just invent one out of convenience to your argument.

[NT1440]

Yeah, dur, cos, like, Sony doesn't have a monopoly on PS3s...
;) :rolleyes:

no no no, thats completely different. U forgot people love to bash apple, sony on the other hand can do no wrong!


what is wrong with people where they really try to pull that crap in court, and for some reason our judicial system allows all these rediculous lawsuits

[gnasher729]

I seriously want to see how Apple proves they modified the code.

It is called "disovery". They start by taking depositions from all employees. In a deposition, you have the choice: Either you tell the truth, or you go to jail if it is proven that you are lying. They ask for all documentation about the installation. If any documentation has disappeared that is taken as proof that anything damaging for Psystar that Apple thinks could have been there actually was there. Then Apple asks them for one of the machines with an "unmodifed" copy of MacOS X. They have to supply it. If there is anything modified, Apple will easily find it.

[nanofrog]

realistically, this will probably drag on for a year or two until pystar is either bankrupt (good riddance) or by some outrageous decision, they win
Seems a reasonable time frame. Thanks. :)
It is called "disovery". They start by taking depositions from all employees. In a deposition, you have the choice: Either you tell the truth, or you go to jail if it is proven that you are lying. They ask for all documentation about the installation. If any documentation has disappeared that is taken as proof that anything damaging for Psystar that Apple thinks could have been there actually was there. Then Apple asks them for one of the machines with an "unmodifed" copy of MacOS X. They have to supply it. If there is anything modified, Apple will easily find it.
Wouldn't it be in Apple's best interest to have acquired one of Psystar's machines for a forensic examination?

[pdjudd]

It is called "disovery".

Thats exactly what will happen. They subpoena all the employees and all the details about the installation. The notion of discovery is a great thing. They just need to get one employee to confess that modification occurred or they just have to show that modification occurred - something that Apple could easily prove - heck, Psystars own restore CD would prove it since a regular Leopard disc could not install on a blank open computer. Compare the two - Psyssar will have to reveal the source code because they deal with Apple's IP and cannot claim a proprietary product - unless they want to claim its a derivative work which is illegal as well.

Wouldn't it be in Apple's best interest to have acquired one of Psystar's machines for a forensic examination?
I have no doubt that Apple already has one. They probably will get another via a subpoena during discovery to hand over to a third party to perform the forensics to testify. Third party experts will be more damning for Psystar and will support Apple's claims.

[NT1440]

Seems a reasonable time frame. Thanks. :)


you know i think this is the first time ive ever been thanked for anything on this forum

*tear*

i think i need a minute alone....




but in all honestly my statement on how long this takes was just a generalization of how long rediculous court cases ive heard of have gone on. I have to say i dont really have ne evidence to support it.

[Sun Baked]

It is called "disovery". They start by taking depositions from all employees. In a deposition, you have the choice: Either you tell the truth, or you go to jail if it is proven that you are lying. They ask for all documentation about the installation. If any documentation has disappeared that is taken as proof that anything damaging for Psystar that Apple thinks could have been there actually was there. Then Apple asks them for one of the machines with an "unmodifed" copy of MacOS X. They have to supply it. If there is anything modified, Apple will easily find it.

They are also entitled to some of the Restore DVDs, since you know Apple purchased quite a few of the machines to test and dissect.

So they likely can easily get the ... Psystar OpenComputing Leopard Restore Disk listed on their site 8/12/2008

If they refuse to provide them Apple has a claim as a harmed consumer.

[IJ Reilly]

Reading further on in this in the counterclaim, I've decided that its real purpose is comedy. Beginning on page 32 they purport so prove the claim that the Mac is a separate and distinct market over which Apple has illegal monopoly powers. The gist of this argument is that Apple has marketed the Mac successfully as a product and people like it. That's pretty much it!

[pdjudd]

Reading further on in this in the counterclaim, I've decided that its real purpose is comedy. Beginning on page 32 they purport so prove the claim that the Mac is a separate and distinct market over which Apple has illegal monopoly powers. The gist of this argument is that Apple has marketed the Mac successfully as a product and people like it. That's pretty much it!

Proof enough that writing a legal document and presenting it to a Judge doesn't give it any credence. It sounds like legal diarrhea. None of the claims that I have seen Psystar make has any bearing in fact or in Law.

[ZiggyPastorius]

I'd be interested in seeing a video or a transcript of the lawyers going at it.

"Judge, my client, PSYSTAR, has a question, for all of YOU!

...Have you ever...loved? Has anyone ever told you...no? Have you ever felt alienated because something you want...so much...just can't be obtained? Well, that, my friends, is what we are experiencing today. Apple, Inc. is a monster! With their viciously-maintained monopoly of the Apple-branded Macintosh computers capable of running the Mac OS monopoly, and their monopoly on the Mac OS itself...PSYSTAR is left to do nothing...but cry. Apple is like the bully on the playground, viciously telling you he won't scoop you some of his superman ice cream...only because your bowl is made of porcelain, which he is allergic to. Thank you."

*tear*

[IJ Reilly]

Proof enough that writing a legal document and presenting it to a Judge doesn't give it any credence. It sounds like legal diarrhea. None of the claims that I have seen Psystar make has any bearing in fact or in Law.

By the same reasoning no doubt, antitrust claims could be filed against Toyota for successfully making and marketing Toyota cars. By not allowing anyone else to make Toyota cars they are clearly thwarting competition in the Toyota car market.

[NT1440]

Proof enough that writing a legal document and presenting it to a Judge doesn't give it any credence. It sounds like legal diarrhea. None of the claims that I have seen Psystar make has any bearing in fact or in Law.

yet this is more or less the norm in our legal system, nothing but frivilous lawsuits

[CWallace]

Page 26 is where it gets interesting...When you break down industries to such levels (Apple-Labeled Computer Hardware Systems submarket) surely they all have a monopoly in some sense.

If somehow this goes through surely it will be the end of apple as we know it.

It will be more then the end of Apple as we know it.

Such a ruling would open up legal clones of things like video game platforms, since Sony would have a "monopoly" on the Playstation sub-market. Same with Microsoft and the XBOX and Nintendo and the Wii. Or Dolby Laboratories and their "monopoly" on their multi-channel audio sub-market. And we can't forget Comcast and Time Warner on their "monopolies" of their cable content delivery sub-markets. I am sure there are many, many more.

I would not be surprised that, should Psystar's claims not be thrown out immediately, you will see scores - if not hundreds - of "friends of the court" motions by companies in support of Apple.

[Sun Baked]

I know they are thinking quite a bit of the OS is open source and Apple doesn't own it ... but they tend to forget that Apple purchased the core OS from NeXT, then made Darwin open source while retaining ownership -- with the right to Terminate you at any time.

Just looking at the Springer/Colby response and during the past week in interviews about how Psystar is only modifying open source code, they are running under this delusion.

Many might take this original lawsuit as a termination of your ability to distribute modifications to Apple's open source code.

[r.j.s]

Wow, 54 pages of straight crap!

So, does this mean that every product in existence is in its own market? That's what Psystar seems to think.

[pdjudd]

I know they are thinking quite a bit of the OS is open source and Apple doesn't own it ... but they tend to forget that Apple purchased the core OS from NeXT, then made Darwin open source while retaining ownership -- with the right to Terminate you at any time.

Just looking at the Springer/Colby response and during the past week in interviews about how Psystar is only modifying open source code, they are running under this delusion.

Many might take this original lawsuit as a termination of your ability to distribute modifications to Apple's open source code.

It actually gets better - Psystar assumes that they can redistribute the open source components under Apple's trademarks. That isn't legal unless its an authorized derivative. Apple still owns the trademarks to pretty much all of OSX - even the closed portions that are not open source and are not open to redistribution. Simply because Darwin is open source, does not release the trademark infringements nor does it make OSX open source as a whole.

They are just making things worse.

[swingerofbirch]

I think it should make some difference that Mac OS X is sold as a stand alone product. It's not as Microsoft sells a boxed version of the XBOX OS, etc.

Apple is essentially asking for the right to sell a product but maintain control of what the owner of the product does with it.

I think a more manly Apple would just find a way to make sure it didn't work on computers they don't want it to than to resort to legal code, just like I thought the music industry should have innovated their way out of P2P file sharing rather than using the legal code.

[zombitronic]

Anyone have a realistic estimate how long the proceedings will run?

http://www.nerdcore.de/wp/wp-content/uploads/2008/07/finalfound.jpg

[Definity]

lol...


39. PSYSTAR is informed and believes, and thereon alleges, that APPLE’s customer loyalty is well-established notwithstanding the higher prices of an Apple-Labeled Computer Hardware System versus those of a similarly situated non-APPLE product. APPLE customers have, in fact, been referred to by Seeking Alpha as “zealots” and “fanboys” in addition to “Mac loyalists.” These customers, accordingly to Seeking Alpha, will “defend the company and its products in any debate going on around them.”

[NT1440]

lol...

what legal value does that even hold??

[r.j.s]

what legal value does that even hold??

None, Psystar is just whining, like they are on every other page.

[NT1440]

None, Psystar is just whining, like they are on every other page.

what i really dont understand is why they are just bankrupting themselves. they should just bail out while they can

[zombitronic]

39. PSYSTAR is informed and believes, and thereon alleges, that APPLE’s customer loyalty is well-established notwithstanding the higher prices of an Apple-Labeled Computer Hardware System versus those of a similarly situated non-APPLE product. APPLE customers have, in fact, been referred to by Seeking Alpha as “zealots” and “fanboys” in addition to “Mac loyalists.” These customers, accordingly to Seeking Alpha, will “defend the company and its products in any debate going on around them.”

Who do these customers of Apple think they are? ...Enjoying and finding value with their products. Makes me sick.

[r.j.s]

what i really dont understand is why they are just bankrupting themselves. they should just bail out while they can

I'm guessing they have some pretty big backers that would like to see Psystar win but wouldn't dare attempt anything remotely similar themselves.

[NT1440]

Who do these customers of Apple think they are? ...Enjoying and finding value with their products. Makes me sick.

scum is all they are:mad:




:p

[nanofrog]

I'm guessing they have some pretty big backers that would like to see Psystar win but wouldn't dare attempt anything remotely similar themselves.
This is sort of what I was thinking. Perhaps even a law firm in it to elevate their reputation, or absolute believers? :p

[Definity]

I actually hope they win. thy're like a pitbull and won't let go. they remind me of piratebay. I never steal music or download it, but I have some sort of affinity, an acquired love. I'm enjoying what they're doing but I'm sick of debating. Let the pros do it and just sit back, grab some tacos and enjoy the view.


It'll mean better spec'd, better quality and less costly products. Everyone wins.

[alphaod]

So what part of Apple makes OS X and Mac doesn't Psystar get?

[pdjudd]

It'll mean better spec'd, better quality and less costly products. Everyone wins.
I assure that will not happen. Psystar will not succeed if these claims in the response are any indication of their legal prowess.

[benzslrpee]

this is like suing Chevy for being the only company that makes Chevy cars...

[IJ Reilly]

It will be more then the end of Apple as we know it.

Such a ruling would open up legal clones of things like video game platforms, since Sony would have a "monopoly" on the Playstation sub-market. Same with Microsoft and the XBOX and Nintendo and the Wii. Or Dolby Laboratories and their "monopoly" on their multi-channel audio sub-market. And we can't forget Comcast and Time Warner on their "monopolies" of their cable content delivery sub-markets. I am sure there are many, many more.

I would not be surprised that, should Psystar's claims not be thrown out immediately, you will see scores - if not hundreds - of "friends of the court" motions by companies in support of Apple.

Right, and even more to the point, if Psystar can successfully argue that "Apple Macintosh Computers" are a separate market over which Apple has a monopoly, then any other product can also be called a monopoly.

The good news is that they aren't going to make this case successfully. Which only leaves the question: What the hell are they doing, and why?

[macsmurf]

The unlawful tying claim seems like the most interesting one. The monopoly claim seems a bit far-fetched.

[ccuk]

I think people are underestimating Psystar here. Many people have been on the rather unpleasant end of Apple legal, and bowed out gracefully, Psystar have not, and therefore must feel they have a case.

I see this as competition personally. I love the Mac Pro, and iMac, I use daily for work, but I do feel Apple have become a little stagnant and in their desktop and laptop markets. I have seen very little innovation and a lot of focus on their new markets such as Apple tv, iPhone, iPods, iTunes etc... maybe this Psystar case is the sort of competition we need to bring back the old Apple.

If Psystar winning resulted in cheaper hardware, Apple updating their desktop lines more frequently, or in the more ideal world offering machines with greater expandability... I am sorry to say I am all for it. I offer no allegiance to any brand, I need equipment which will get the job done in the quickest time, on or under budget.


I eagerly await the outcome of this case.

[Much Ado]

^ But they cannot win. They have no case, and no argument.

[Sun Baked]

The unlawful tying claim seems like the most interesting one. The monopoly claim seems a bit far-fetched.

And likely the one with legs, but Apple does have strong tying arguments. And tying is allowed if it is a business necessity.

Apple does have ample evidence with the last clone fiasco to show that it eroded their marketshare and dropped their profits to dangerous levels -- aka, they likely pulled the trigger to go with clones too early, and didn't have a sustainable marketshare, which was at a level somewhere around double current levels (or was it even more than 2x) in 1994.

Since their US and worldwide marketshare was higher in 1994 than it is now, they might still be able to use the viability argument at the current US and Worldwide marketshare.

While it is an archaic business model for desktop PCs (there are two big names left trying it -- and Amiga is stuck in legal quicksand going nowhere), it is one that has allowed Apple to flourish and still be an option to Windows. Most of the other small OS companies that have tried to evolve away from this model recently have ceased operations.

So they just need to justify the tying arrangement as being justifiable if the court doesn't want to risk eliminating the one major player seen as an option to Windows.

[gazfocus]

I think it's just a case of Pystar have gotten all confused over the Anti Competition laws.

Microsoft was sued under the same law some time ago for including Windows Media Player as an integral part of Windows that could not be uninstalled...the justification to this was that it pushed WMP onto customers who might otherwise use different software (such as iTunes, Winamp, etc)...The fight wasn't to let other people distribute Windows Media Player.

Therefore, surely the only thing that should (if anything) be argued under this law is that Apple should allow other companies to make software that will run on their computers (including Operating Systems), which they do.

It shouldn't be a case of being able to run OSX on a generic PC at all. At the end of the day, nearly every computer manufacturer creates restore discs that will only run on their particular brand computer, and if you try to use them on other computers, you will get an error. In that respect, Appe is doing nothing different!

[icoffee]

All of these comments miss the point. You bet Apple has a monopoly. Here's the pudding: Apple uses a small range of hardware manufacturers so it has a small range of hardware to support. If you look at that hardware, e.g. video chipsets, processors, ram, it's 100% identical to PC components. Apple designs the case and layout of the motherboard to fit in the case, but that's it. To use your car analogy, Apple is basically taking the internals of a chevy or ford, putting it on a new chassis, and calling it an Apple. As much as I love Apple, Psystar has a good chance to win some parts of the suit.

Why do you think Apple bought a chip company, and why do you think they've been pushing for H264 chips to be in Macs? That's the only way they'll be able to define an Apple computer, i.e. one that has Apple guts. With the move to Intel, they've gotta start adding their own in-house produced chips, or they'll never be able to stop the clones. By adding their own in-house chips and tying it to software in the OS such as Quicktime, Apple would be on much more solid ground.

[moonislune]

All of these comments miss the point. You bet Apple has a monopoly. Here's the pudding: Apple uses a small range of hardware manufacturers so it has a small range of hardware to support. If you look at that hardware, e.g. video chipsets, processors, ram, it's 100% identical to PC components. Apple designs the case and layout of the motherboard to fit in the case, but that's it. To use your car analogy, Apple is basically taking the internals of a chevy or ford, putting it on a new chassis, and calling it an Apple. As much as I love Apple, Psystar has a good chance to win some parts of the suit.

Why do you think Apple bought a chip company, and why do you think they've been pushing for H264 chips to be in Macs? That's the only way they'll be able to define an Apple computer, i.e. one that has Apple guts. With the move to Intel, they've gotta start adding their own in-house produced chips, or they'll never be able to stop the clones. By adding their own in-house chips and tying it to software in the OS such as Quicktime, Apple would be on much more solid ground.

@icoffee, good point about the hardware, at least for intel macs

[CWallace]

The good news is that they aren't going to make this case successfully. Which only leaves the question: What the hell are they doing, and why?

Well if they're being backed by some large OEM who wants to launch a Mac clone, at least they'd know what they can and cannot do. If the EULA is ruled illegal, for example, then that would at least give them the legal right to install OS X on the PC if they can figure out how make it work without having to modify or patch any of OS X's code. Maybe something like Windows' Hardware Abstraction Layer which OS X could run on top of.

[xUKHCx]

@ icoffee

Isn't that why apple refer to it as an apple labeled computer.

There are car companies that do what you describe in your anaology.

[CWallace]

All of these comments miss the point. You bet Apple has a monopoly. Here's the pudding: Apple uses a small range of hardware manufacturers so it has a small range of hardware to support. If you look at that hardware, e.g. video chipsets, processors, ram, it's 100% identical to PC components. Apple designs the case and layout of the motherboard to fit in the case, but that's it. To use your car analogy, Apple is basically taking the internals of a chevy or ford, putting it on a new chassis, and calling it an Apple. As much as I love Apple, Psystar has a good chance to win some parts of the suit.

If all that mattered was the parts, why did not any of the authorized PPC clone companies sue Apple when Steve moved to System 8 and refused to license it to them? Or why did not they sue Apple to be allowed to continue to sell System 7 (which they were licensed to do) when Apple stopped selling it themselves? You don't think Motorola and IBM didn't have the money to put up a challenge? Much less any leverage over Apple since both made the PPC CPUs their Macs needed?

It's not the hardware that is the crux of the issue here. :)

[ccuk]

It's not the hardware that is the crux of the issue here. :)

I think the case will revolve around the hardware, and will very much be a large part of the issue.

[Stratus Fear]

I think the case will revolve around the hardware, and will very much be a large part of the issue.

The hardware is irrelevant. It's no less illegal and wrongfully harmful to modify and sell Mac OS with non-Apple hardware now than it was to sell it packaged with an emulator when it was PPC only.

[ccuk]

The hardware is irrelevant. It's no less illegal and wrongfully harmful to modify and sell Mac OS with non-Apple hardware now than it was to sell it packaged with an emulator when it was PPC only.


From a current legal stand point you are right.

But I can see a lot of benefits to having OS X officially supported for being run on none Apple hardware.

[Stratus Fear]

From a current legal stand point you are right.

But I can see a lot of benefits to having OS X officially supported for being run on none Apple hardware.

Well I can understand where you're coming from, but I think the only benefit it's going to do is give some an alternative OS. It's going to do nothing to drive the OEM hardware market forward now as Apple is able to do with things as they are. Some of us like all-in-one machines and super-thin laptops. The only reason other companies are making any now is to catch up to Apple. Apple is a competitive force in the OEM PC market and taking away their competitive advantage because some people think they're entitled is only going to hurt the market in the long run. Right now, Apple is proving that you don't need the commodity PC model to suceed and other OEMs are taking note. But if Apple is no longer in the picture because they're not allowed to create advantages through their own products (integration, etc.) it's going to be worse for the entire market in the long run.

[IJ Reilly]

The unlawful tying claim seems like the most interesting one. The monopoly claim seems a bit far-fetched.

What's so interesting about it? Tying is perfectly legal. It's done all the time. In order to prove that Apple's tying harms competition, Pystar has the same burden of proof that they're stuck with trying to prove an Apple monopoly. Both points are equally impossible because they rely on the absurd concept of an "Apple Macintosh computer" market. This market doesn't exist.

Well if they're being backed by some large OEM who wants to launch a Mac clone, at least they'd know what they can and cannot do. If the EULA is ruled illegal, for example, then that would at least give them the legal right to install OS X on the PC if they can figure out how make it work without having to modify or patch any of OS X's code. Maybe something like Windows' Hardware Abstraction Layer which OS X could run on top of.

I doubt very much that any of the OEMs would support this lawsuit. They are smart enough to know that they can't force Apple into becoming their business partners.

[r.j.s]

I doubt very much that any of the OEMs would support this lawsuit. They are smart enough to know that they can't force Apple into becoming their business partners.

No, THEY can't force Apple, but they can make sure Psystar's legal bills are getting paid. That way, if they do win - they can jump on that new market.

The not stupid enough to do it outright, but they will back the no name company with nothing to lose.

[IJ Reilly]

No, THEY can't force Apple, but they can make sure Psystar's legal bills are getting paid. That way, if they do win - they can jump on that new market.

The not stupid enough to do it outright, but they will back the no name company with nothing to lose.

My point still holds. Even assuming any of the big OEMs were foolish enough to buy Pystar's feeble legal arguments (doubtful), even a favorable outcome for them would be far from obviously beneficial. At a minimum, Apple would be hostile towards them, and this does not make for productive business relationships. And even if Apple was ordered by a court to sell OSX to OEMs, we can imagine an number of options Apple has for making this an unpleasant and unproductive experience.

[BowZinger]

Not sure what this has to do with anything but I just wanted to point it out.

If for some reason Apple has to allow OS X to run on any computer, I.E none apple branded ones. Then (this is what I believe) we are going to basically end up with a Apple version of Windows. You are going to have so many availble hardware options in which companies develop drivers for (and it is my thought that some of the drivers for windows are so bad it makes things not work correctly) that OS X is eventually going to start having the same issues as Windows in regards to having a bunch of compatability issues.

So, if this somehow goes PSYSTAR's way, it will be a very interesting outcome.

ANYTHING STATED ABOVE IS MY OPINION!

not here to argue, just wanted to point that out!

[Definity]

If Psystar feel that they can produce a better quality and cheaper hardware based system that can run OSX (without any modifications, as stated in the countersue), then why should they be prevented from doing so? There is no reason whatsoever why Psystar cannot compete with apple in the Mac OS market. Their benchmarks thrash the apple equivalents left, right and centre and it has been proved.

There is no reason, nor justification in only having the mandatory, non-avoidable alternative to that said "apple-labelled computer" - not apple branded hardware, not apple branded monitors, speakers, iphones, ipods, whatever to warrant OS X being limited to that said computer chassis. The hardware is identical to most PC's. The chassis must be labelled as an apple machine and by that, they limit and annhilate all competition. Apple do already have support for non-branded hardware.

If you honestly think that apple being allowed to force you to use Intel chips, rather then, say, AMD chips, and feel it is ok, then you are very short sighted. If they can discriminate against you for changing your hardware, by shutting your system down so that it is no longer usable and crippled and still think it's ok to do so, then you have issues.

Apple have been involved in foul play and have lasted quite some time, now they scream foul when someone tries to flag them down.


I've had enough of this argument.


As I've said, I hope Psystar win.

[NT1440]

what happened to the days when your own property was actually considered yours????

apple makes both the computers (through manufacturing companies) and the OS. Its there property so they should be able to do what they want with it.

[Definity]

what happened to the days when your own property was actually considered yours????

apple makes both the computers (through manufacturing companies) and the OS. Its there property so they should be able to do what they want with it.

Since the day that those with great power abused their great responsibilities. See Intel, see Microsoft, see Eireann, the list is huge, see Tescos, see Asda/Walmart.

The main thing you need to understand is that they Mac the OS, but they DO NOT make the hardware. They make the casing around the hardware components. They label it with an apple sticker. No one else can. Not even you.

[NT1440]

Since the day that those with great power abused their great responsibilities. See Intel, see Microsoft, see Eireann, the list is huge, see Tescos, see Asda/Walmart.

The main thing you need to understand is that they Mac the OS, but they DO NOT make the hardware. They make the casing around the hardware components. They label it with an apple sticker. No one else can. Not even you.

ok so someone else makes the hardware whoop de doo. Apple is the only one making the OS, so shouldnt they have COMPLETE control over who and what can use it???

[r.j.s]

They label it with an apple sticker. No one else can. Not even you.

You CAN make your own hardware, you CAN'T put an Apple sticker on it and sell it. I know you're from the UK, but you might consider brushing up on US trademark and copyright law before getting into a legal argument involving two US companies, in the US, involving US laws.

[Definity]

ok so someone else makes the hardware whoop de doo. Apple is the only one making the OS, so shouldnt they have COMPLETE control over who and what can use it???

Not when they are the only ones making that said compartment, which holds hardware no difference to anything else, or no superior than anything you could go buy from best buy.

Car analogies are popular. So, it's like Ford telling the world who are allowed to use their cars. They let you buy it, and won't stop you from it, but should you try and use it, they'd cripple the engine.

[r.j.s]

Car analogies are popular. So, it's like Ford telling the world who are allowed to use their cars. They let you buy it, and won't stop you from it, but should you try and use it, they'd cripple the engine.

No, car analogies suck. There is no good analogy for this situation, besides, you aren't looking at the big picture. These lawsuits aren't about what YOU as a single person can do with Apple's software, they are going after another company for making a profit by using their copyrights and trademarks without permission. Period.

[Definity]

You CAN make your own hardware, you CAN'T put an Apple sticker on it and sell it. I know you're from the UK, but you might consider brushing up on US trademark and copyright law before getting into a legal argument involving two US companies, in the US, involving US laws.

I've no concern over copyright, nor trademark. This is about the ethics. Ethics are globally understood.

And quite frankly I know what you said. Psystar do not put an apple sticker on their computers and sell it. As a result they aren't infriging on copyright, nor denting any trademark laws, as far as I can see. I'm quite happy with the knowledge I have of copyright and trademark legalities. This whole scenario involves neither. Fortunately, that's very similar no matter where you go for the most part.

[r.j.s]

I've no concern over copyright, nor trademark. This is about the ethics. Ethics are globally understood.

And quite frankly I know what you said. Psystar do not put an apple sticker on their computers and sell it. As a result they aren't infriging on copyright, nor denting any trademark laws, as far as I can see. I'm quite happy with the knowledge I have of copyright and trademark legalities. This whole scenario involves neither. Fortunately, that's very similar no matter where you go for the most part.

Except that it IS all about trademarks and copyrights. Show me in the legal filings where this is about ethics ...

[Definity]

No, car analogies suck. There is no good analogy for this situation.

No that analogy works fine. Same principles.

Or you can change it to an extreme, quite plausible. For example, it'd be like going to a restuarant where you can go everyone can go and eat. However, it has a list on the window saying caucasian, oriental and hispanics are not allowed to enter. Should you try, they'd let you in. But when you get in, they'd dose you up with choloroform and leave you crippled on the floor.

Outward you look different, but as with everyone else in the room, they're all human, and they all hold the same organs, feelings and mental state. That is how apple discrimate with their OSX licensing. Since switching to Intel, they opened the doors, but they have a sniper picking off anyone who do not fit their demands.

Except that it IS all about trademarks and copyrights. Show me in the legal filings where this is about ethics ...

Where on earth did you find that? Psystar are not copying anything. They are not altering the OSX system. They are not pretending to be apple. They are not making you to believe that they are affiliated, trading on behalf, or in part, with apple.

They in no part copy or distrubute copies, illegal, legal or otherwise of apples said intellectual properties. This is NOT about trademark law nor copyright law.

[r.j.s]

No that analogy works fine. Same principles.

Or you can change it to an extreme, quite plausible. For example, it'd be like going to a restuarant where you can go everyone can go and eat. However, it has a list on the window saying caucasian, oriental and hispanics are not allowed to enter. Should you try, they'd let you in. But when you get in, they'd dose you up with choloroform and leave you crippled on the floor.

Outward you look different, but as with everyone else in the room, they're all human, and they all hold the same organs, feelings and mental state. That is how apple discrimate with their OSX licensing. Since switching to Intel, they opened the doors, but they have a sniper picking off anyone who do not fit their demands.

WHAT!? That doesn't work either.

[Definity]

WHAT!? That doesn't work either.

YES it does. They discriminate against the fact that the computer HAS NO APPLE LABEL. It is not marked as an APPLE BRANDED machine. The contents are the same. So therefore it does apply. It is the same, and it is very applicable to this scenario.

[r.j.s]

A decent analogy would be this:

It's like going to the store and buying a DVD, you decide you don't some scenes, so you change them, all is good. Then you decide to start selling your edited DVD, but by Psystar's reasoning, it's ok, because they bought a DVD for each one sold.

[Definity]

No, they DO NOT alter any part of the OS X system, the PDF clearly state that they deny it in all parts. They say it is unmodified. So therefore your analogy is void.

[r.j.s]

YES it does. They discriminate against the fact that the computer HAS NO APPLE LABEL. It is not marked as an APPLE BRANDED machine. The contents are the same. So therefore it does apply. It is the same, and it is very applicable to this scenario.

And they are allowed to do that, but you are being too narrow still. Just like I tried to tell you int he last thread, YOU CANNOT MAKE A PROFIT FROM SOMEBODY ELSE'S IP WITHOUT THEIR PERMISSION. PERIOD.

I know that you don't care about US trademark and copyright laws, but that is the field we are playing on today, you should really understand that before trying to make unrelated arguments.

No, they DO NOT alter any part of the OS X system, the PDF clearly state that they deny it in all parts. They say it is unmodified. So therefore your analogy is void.

Oh, they deny it, that makes it true. Sorry. Anyway, explain why you MUST get your software updates from Psystar or why the retail Leopard DVD will not install on their machines.

[Definity]

How can you say that? Can you say that they are making money from "reselling" OSX?

The fact that they are making profit from the hardware which quite rightly has nothing to do with apple is fair.

You cannot say that they are profiting from reselling OSX. If you can, then so be it, and apologies due. But I cannot accept that otherwise.

Oh, they deny it, that makes it true. Sorry. Anyway, explain why you MUST get your software updates from Psystar or why the retail Leopard DVD will not install on their machines.

Apple identify their machines as non-apple branded, and destroy the functionality of that said system.

[r.j.s]

How can you say that? Can you say that they are making money from "reselling" OSX?

The fact that they are making profit from the hardware which quite rightly has nothing to do with apple is fair.

You cannot say that they are profiting from reselling OSX. If you can, then so be it, and apologies due. But I cannot accept that otherwise.

More than likely, the only reason they are selling any machines is because of OS X, therefore they are making profit from the sale of Apple's trademarks and copyrights.

Apple identify their machines as non-apple branded, and destroy the functionality of that said system.

Can you prove that the updates do that intentionally? Even if they did, Psystar is modifying those updates to make them work, that's copyright infringement.

[Definity]

More than likely, the only reason they are selling any machines is because of OS X, therefore they are making profit from the sale of Apple's trademarks and copyrights.

No they aren't though, they are making hardware that is OS X compatible. They are (I presume, and accept wrongness if so) not profiting from reselling OSX. OS X is a seperate system to Apple hardware configurations.

I swear I'd love to just sit down and talk. We're like marmite. :P

Can you prove that the updates do that intentionally? Even if they did, Psystar is modifying those updates to make them work, that's copyright infringement.

Paragraph 58, page 34:

On information and belief, PSYSTAR alleges that APPLE intentionally embeds code in the Mac OS that causes the Mac OS to recognize any computer hardware system that is not an Apple- Labeled Computer Hardware System. Upon information and belief, PSYSTAR alleges that upon recognizing that a computer hardware system is not an Apple-Labeled Computer hardware System, the Mac OS will not operate properly, if at all, and will go into what is colloquially known as ‘kernel panic.’ Through kernel panic, the operating system believes that it has detected an internal and fatal error from which the operating system cannot recover. As a result, the operating system discontinues operation. As noted above, without a functioning operating system, functionality of the corresponding computer is reduced to near zero.


That kinda tells me the updates are like a homing missile, ready to seak and destroy anything untoward.


I found this on their forums:

My understanding is that the last OSX update provided Psystar with it's own software update procedure, in place of Apple's. Now they can check the update software before it's loaded to your OpenPro. Making sure your computer remains a non brick.

Being their own, I presume, and only presume that they have made their own apple-like update application which upgrades OSX.


I can't prove that any of this is true, but seeing as it's going to court, I see why they have any reason to lie when going against apple, who could as a result and very easily counter anything that is wrongly alleged.

[NT1440]

No they aren't though, they are making hardware that is OS X compatible. They are (I presume, and accept wrongness if so) not profiting from reselling OSX. OS X is a seperate system to Apple hardware configurations.

I swear I'd love to just sit down and talk. We're like marmite. :P

they are catoring to the people that want a mac but cant afford it. That is the sole reason there in business

[r.j.s]

Paragraph 58, page 34:


I said prove, not the allegations from that countercomplaint, some of those are utterly ridiculous.

[Definity]

they are catoring to the people that want a mac but cant afford it. That is the sole reason there in business

No, they are catering to those who want better value for money, not by cheaper products, but better performance.

http://www.psystar.com/openmac_the_apple_alternative.html

[IJ Reilly]

Where on earth did you find that? Psystar are not copying anything. They are not altering the OSX system. They are not pretending to be apple. They are not making you to believe that they are affiliated, trading on behalf, or in part, with apple.

They in no part copy or distrubute copies, illegal, legal or otherwise of apples said intellectual properties. This is NOT about trademark law nor copyright law.

No, you are wrong. They are trading on Apple's patents, trademarks and copyrights. You may not understand why this is illegal, but it is.

[NT1440]

No, they are catering to those who want better value for money, not by cheaper products, but better performance.

http://www.psystar.com/openmac_the_apple_alternative.html

just because thats what they state, doesnt mean thats why the vast majority of there customers (not that their customer base is vast) are buying it. they started off (according to the articles i saw months ago on both giz and engadget) to sell OSX machines.

[Definity]

I said prove, not the allegations from that countercomplaint, some of those are utterly ridiculous.

http://review.zdnet.com/desktops/psystar-open-computer/4505-3118_16-32978558.html

Its hardware isn't made by Apple's design team, it will likely never work as a full member of the greater Apple ecosystem, and one ill-intended software update could turn it into a $750 brick. Get past all of that, and you'll find Psystar's OS X-based Open Computer a fast and otherwise compelling lower midrange desktop.

just because thats what they state, doesnt mean thats why the vast majority of there customers (not that their customer base is vast) are buying it. they started off (according to the articles i saw months ago on both giz and engadget) to sell OSX machines.

It seems to fair well on the above link, from zdnet, reliable source I'm sure.

Oh I also found apple's complaint, if you're interested. Good read too.


http://blogs.zdnet.com/BTL/images/apple.pdf

No, you are wrong. They are trading on Apple's patents, trademarks and copyrights. You may not understand why this is illegal, but it is.

Quite possible, I'll hold my hands up should that be the case.


[edit]I see where the copyright allegations spawn from. /comment withdrawn. nn

[r.j.s]

Not trying to put you down at all Definity, but this is the fourth thread on this series of lawsuits.

I've read both filings, have studied business law, and I really can't see Psystar having any ground to stand on. (Unless the court accepts that the market is defined as Apple-branded computers.)

Having said that, many people come to these threads to defend the "little guy," saying how they should be able to install OS X on anything. They completely miss the whole point of the suits.

[Stratus Fear]

Having said that, many people come to these threads to defend the "little guy," saying how they should be able to install OS X on anything. They completely miss the whole point of the suits.

Slightly OT, but some of those same people come to these threads ranting how Apple is overpriced, considering only one single dimension of the value of a computer (performance) and claiming that a PC the size of ENIAC, sounding like a vacuum cleaner, and for $399 totally blows away any Mac in every possible dimension when it gets one extra point in Xbench. They miss the point there, too. It gets tiring reading it again and again... The point is that people have different values in purchasing computers. Apple happens not to cater to one specific set.

Apple doesn't sell commodity and they likely won't. Just because you want it from them isn't a good reason for Psystar to get away with something illegal.

[NT1440]

Apple doesn't sell commodity and they likely won't. Just because you want it from them isn't a good reason for Psystar to get away with something illegal.

Thank you!

ive been thinking this the entire time but i couldnt figure our how to word it. I no alot of u arent siding with psystar for that, but thats what i wanted to say to the ones that do.

[Sun Baked]

No, they DO NOT alter any part of the OS X system, the PDF clearly state that they deny it in all parts. They say it is unmodified. So therefore your analogy is void.

But they admit to modifying Open Source code, and Darwin is still owned in large part by Apple -- and they have the right to terminate distribution at will.

Sort of like saying hey we downloaded and modified BootX, go suck eggs Apple.

Yet they miss that important link about which open source license it operates under. Ooops.

http://www.opensource.apple.com/darwinsource/10.5.4/

Today, Springer denied reports that Psystar was pirating or modifying Apple's software. "Every single copy of the OS is a purchased copy," said Springer. "Despite the allegations that there's a'master disc,' that's not the case. And allegations that Psystar has somehow modified [Mac OS X's] code to run on non-Apple systems, that's also not the case.

"There is no modification of any proprietary code of Apple's," Springer claimed. Psystar, however, has modified some of the open-source code that ships with Mac OS X, Springer acknowledged, but maintained that any modifications were under the licenses of each open-source component.

[CWallace]

If you honestly think that apple being allowed to force you to use Intel chips, rather then, say, AMD chips, and feel it is ok, then you are very short sighted.

And yet, when Apple ran on PowerPC - or the Motorola 68000 - I bet you didn't give a rats bum about this because you couldn't go down to your corner computer store and buy a cheap(er) OEM PPC or 68K system. But now, thanks to it being on the dominant CPU platform available, thousands of new options are available so it's now an issue of evidently paramount importance.

The only reason I would want AMD is it's cheaper then Intel (because Intel offers a superior product line and forces AMD to be cheap since nobody will pay a premium for their CPUs).

If they can discriminate against you for changing your hardware, by shutting your system down so that it is no longer usable and crippled and still think it's ok to do so, then you have issues.

Microsoft does it to protect their intellectual property from being misused, so why shouldn't Apple be allowed to?

[macsmurf]

What's so interesting about it? Tying is perfectly legal. It's done all the time.


And yet, sometimes it isn't. In particular, unlawful tying is always illegal. Funny how that works out. :)


In order to prove that Apple's tying harms competition, Pystar has the same burden of proof that they're stuck with trying to prove an Apple monopoly.


No. Where do you get your information?


Both points are equally impossible because they rely on the absurd concept of an "Apple Macintosh computer" market. This market doesn't exist.


The unlawful tying argument does not rely on the existence of an OS X capable market. That one is related to the monopoly claim.

[icoffee]

I'm not an attorney or a Psystar customer, but I am a long-time Apple customer. Having said that, any argument in these posts that tries to paint Apple or Psystar as the complete winner misses so many points.

On copyright infringement, I see at least 2 possibilities.

1) Psystar used the open source EFI bootloader to enable Leopard to run on their machines. As long as the code for the bootloader is reverse engineered and/or does not contain Apple created code, Psystar should be safe. The osx86 community claims the code does not infringe, so we'll see. If this one falls in Psystar's favor, we will be seeing a lot more clones. The EULA would be broken and Apple would in no way be responsible for supporting these machines.

2) If Psystar redirected Leopard Software Update to download updates from them instead of Apple, and they were taking Apple's updates, modifying them, and redistributing them, that is infringement. Now Psystar will argue that they had no choice or the OS would become crippled, but they really screwed the pooch on this one. They should have created scripts to remove the offending part of the updates instead of modifying and redistributing (if that's what they did).

3) Trademark/name infringement. Using "Mac" anywhere in your product without Apple's blessing was dumb (unless you're Kraft). If I remember correctly, they changed their name fairly quickly, but how many systems had been sold at that point? Through the use of the Mac name, had Psystar negatively affected the public perception of Apple? Psystar will pay something for this one.

So as I see it, both Apple and Psystar will win and lose. Of course, Psystar will probably be put out of business, but the Mac clone market is going to take off like no other on a hobbyist level, and IMO that's a good thing.

As long as Apple continues to use a limited range of hardware and drivers, even the clones will be stable machines but they won't appeal to 90% of Mac users. As on insanelymac and other sites, I think this really appeals to the uber geek, programmer, unix user, power windows user, linux user. This is not the same market as 90% of the folks that walk in the Apple Store.

[IJ Reilly]

The unlawful tying argument does not rely on the existence of an OS X capable market. That one is related to the monopoly claim.

It's difficult having this debate split into three different threads, but to answer this point, they are closely related accusations. If Apple doesn't have market power as defined by the antitrust laws, then they can't be successfully accused of illegal tying, and they can only be found to have market power if the market is properly defined. To this end, Psystar is attempting to fabricate a market which doesn't exist.

[pdjudd]

No, they DO NOT alter any part of the OS X system, the PDF clearly state that they deny it in all parts. They say it is unmodified. So therefore your analogy is void.

Of course they deny it. They are being sued and facing a major lawsuit.

[CWallace]

Of course they deny it. They are being sued and facing a major lawsuit.

And Psystar's definition of "unmodified" may not meet Apple's or the law's definition.

A number of folks have pointed out that many core parts of the Mac OS (the Carbon and Cocoa APIs or the Quartz Compositor and Aqua user interface, for example) are not part of Darwin nor are covered under Darwin's Open Source license. So if Psystar is playing with that code because they feel it is "Open Source" and they therefore have the right to do so, the courts will likely find otherwise...

[gnasher729]

No, they DO NOT alter any part of the OS X system, the PDF clearly state that they deny it in all parts. They say it is unmodified. So therefore your analogy is void.

The "deny" doesn't mean what you think it means. It means "Apple, you will have to prove it". From what I have heard from people in the Hackintosh scene, it is at the moment impossible to install MacOS X on any non-Apple computer without making modifications to the software.

[quagmire]

No, they DO NOT alter any part of the OS X system, the PDF clearly state that they deny it in all parts. They say it is unmodified. So therefore your analogy is void.

You lost all credibility with me. Would you admit to an illegal act right out of the gate?

" Sir, you have been linked to the murder of XYZ by DNA, security cameras, witnesses,etc."

" But officer, I did not murder XYZ"

" Oh, my bad. You're free to go."

[Sun Baked]

They admitted to altering Open Source code and using it on their "for profit" computer.

What they haven't done, is continue to add to the Open Source community and offer their code up for free (I see no place on their site like this (http://www.opensource.apple.com/darwinsource/10.5.4/)) , and I don't know if they included the APSL license on the machine and a statement of what they modified.

Sort of sucks what the courts are making you do with Open Source software, because this would basically mean people could easily steal from them. :p

But it might be something critical to them not having a copyright violation...

Court: Copyrights apply even for free software 08-14-2008 (http://www.azcentral.com/business/consumer/articles/2008/08/14/20080814biz-freesoftware14-ON.html)

The decision by the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., helps clarify a murky area of the law concerning how much control programmers can exert over their intellectual property once it's been released for free into the so-called "open source" software community.

People are free to use that material in their own products, but they must credit the original authors of the programming code and release their modifications into the wild as well, a cycle that's critical for free software to continue improving.

Because the code was given away for free, thorny questions emerge when a violation has been discovered and someone is found to have shoved the code into their own for-profit products without giving anything back, in the form of attribution and disclosure of the alterations they made.