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Psystar to Challenge Mac OS X EULA?

Possible ways to resolve this issue

Set aside the win/lose in court.
Assumption: Apple will continue its business and strive for survival whatever the court decision made.

I just imagine some consequences for Apple to settle it.
Apple Wins:
1. License issue is cleared
2. Apple continues business and notice that there is a market for low config.
3. Market share rises up with meeting this market needs
4. Cloning business shut down, Hackintosh switch to low config Mac (Cheap price)
5. Customer support getting bigger and bigger as the low config induce instable performance
6. ....

Apple Lost:
1. No more license issue of installing OSX into non-Mac machines
2. Dell, HP and Lenove start to making machines that can run OSX to compete Apple's marketshare
3. OSX market share eroding Windows market quicker (a more stable system)
4. Apple starts Windows based OSX (retail to Win based machines)
5. Customer support getting bigger and bigger as the low config induce instable performance and virus (more or less like Windows)
6. Cloning business shut down, Hackintosh switch to low config Win/Mac based machines (Cheap price)
7. ....

Just wonder it can be a great thesis topic for studying business and corporate ecology. I am not sure what results will it be, but I am sure it really stir up a lot people imaginations and interests.
Conspiracy speaking, will it be a marketing of Apple but not Psystar? :confused:
 
mccldwll said:
Suggest everyone pay close attention to newbies and other somewhat recent joiners. Many of these have absolutely nothing good to say about apple products. Why are they here? Many are from paid to post spin groups like Enderle or Dvorak and their minions, and some are working for hedge funds-- creating arguments which can be picked up and reposted on financial sites and elsewhere. This is a very big money game where small stock price movements can result in $$$$ gains in the options market. With so much at stake, they leave no stone unturned. The intent is to move the price of apple stock, which has experienced extreme volatility since January. Many of these clowns started showing up all over the place in January. JMHO
Click to expand...

Oh, this is perfect! I owned Apples LONG BEFORE YOU WERE BORN, kid. I owned a clone the first time around. You couldn't have possibly proved my point about your cultist status any better than with this answer, I do appreciate your confirmation.

The Kool-Aid is getting warm, please enjoy it now.
 
I think it just shows that Apple has a huge gap in their product line.

The fact is, you can't buy a monitorless Mac desktop unless you want an underpowered machine, or a ridiculously powerful/expensive machine. They would make an absolute killing if they made a Mac tower of sorts where you could use your own monitor (would really be great for people switching) and possibly replace elements like in the Mac Pro. I know I would be all over one if htey did so. The reason I assume they don't want to make it easy for the user to replace the graphics card or hard drive is that they want people to just buy a new computer, not increase the lifespan of the current computer.
 
The question to those idiots who supports Psystar is really simple actually.

You guys kept thinking more PC can use Leopard and Apple is overpricing their product what ever crap ****. But I have a question that will make some of you realize what if Psystar wins.

Do YOU want to pay $600 for Leopard? DO YOU want the next OS X to be sold in packages like Vista?.

Have you ever thought why Apple able to sell all the features in Leopard at the price of Vista Home Premium?.
 
L3X said:
EULA's are completely valid and legal as long as the user has the opportunity to reject it / accept it BEFORE they install it.

In the legal field, this is referred to as a "click-wrap" agreement if it's when you click and install or a "shrink-wrap" agreement when it's on the package and you have to get through the agreement to open the package.

In short, anything in the EULA is enforceable and will take a court to overrule and amend.

I'm not an expert but I am a law student.
Click to expand...

The "contract" is a contract of SALE because you give a seller some money, and they give you some atoms. Nothing is signed, there is no contract at the TIME OF PURCHASE. You don't get lease papers from the retailer or from Apple, you get A RECIEPT.

That's the end of the transaction. Obviously, the buyer is still subject to all the trademark and copyright laws which everyone must respect. But the idea that you make a PURCHASE, then the packaging of the purchase which you made REVERTS YOUR PURCHASE TO A LEASE or PLACES ANY CONDITIONS ON YOUR PURCHASE after the reciept is issued, is *ludicrous*.

Leases are established by a signature between the parties BEFORE ANY PAYMENT. That is some of the most basic law of Western civilization. Without that, you have total chaos, which is what a EULA is. Someone should start a class action against ALL EULAs because it's a blatant and fraudulent attempt to alter a finished contract without the knowledge OR permission of one of the parties.

And don't you think it's a bit odd that after 10 years of EULAs (or more), they have NEVER BEEN TESTED in US courts to a significant degree? The reason is very simple: The EULA writers know they will be trashed. Do you think Apple or Microsoft fears any court case they have a chance of winning? Of course not. Yet they won't put their EULAs on the stand.

Self-evident invalidation.
 
jaminthejar said:
I think it just shows that Apple has a huge gap in their product line.

The fact is, you can't buy a monitorless Mac desktop unless you want an underpowered machine, or a ridiculously powerful/expensive machine. They would make an absolute killing if they made a Mac tower of sorts where you could use your own monitor (would really be great for people switching) and possibly replace elements like in the Mac Pro. I know I would be all over one if htey did so. The reason I assume they don't want to make it easy for the user to replace the graphics card or hard drive is that they want people to just buy a new computer, not increase the lifespan of the current computer.
Click to expand...
That and the fact that Steve thinks everyone should use AIO machines because they are inherently more beautiful.

He has a hard time understanding that there are lots of people out there who need OS X to be more productive but don't fit into his narrow-minded product matrix.
 
I’ve been reading this thread with interest. Most of the replies are not based on legal facts. In spite of what you may think, Apple is in a weak position here. Apple will probably prevail but that won’t be because they have the law on their side. They will prevail because they will make the cost of litigation so expensive for PsyStar that PsyStar will settle with Apple.

First, I would venture to guess that the majority of the posters here have not read Apple’s EULA for OSX. Here’s the link to it so you can read the terms for yourself:

http://images.apple.com/legal/sla/docs/macosx105.pdf


Lots of posts here state that it’s ‘illegal’ for PsyStar to do this or that. Please note PsyStar is located in Florida. Quote the Florida statute that is being violated if you believe that they are doing something ‘illegal’. PsyStar will have to have violated some Florida or Federal law for its actions to be ‘illegal’. What laws has PsyStar broken? Simply doing something that is contrary to a document published by Apple doesn’t make it ‘illegal’. It may be a breach of contract, allowing Apple to assert a civil cause of action against the user. There is no criminal component to it. A court will have to decide that a breech of contract has occurred and decide what remedies, if any, Apple is entitled to.

Apple will have to sue PsyStar in Florida and Florida law will prevail. Apple may try to get the case heard in Federal Court but that is not likely unless Apple can meet the requirements for a federal case. The Apple EULA paragraph 12 states that California law will be used but that most likely would be found unenforceable. California courts have no jurisdiction over Florida business with no California presence unless they agree to be bound by the foreign court. Apple will have to prove that PsyStar is bound by the EULA which isn’t as easy as it may seem. Most likely Apple will forgo the venue clause in its EULA and would file suite in Florida. Apple has a presence in Florida and a jurisdictional fight in California would most likely result in the case being sent to Florida for litigation anyway.

Now if PsyStar wanted to sue Apple over OSX software they would have to sue Apple in California and the forum selection clause would apply. Buy PsyStar isn’t suing anyone.

In order to sue, Apple has to have suffered some damages. How has Apple been damaged? PsyStar is paying full retail price for the copies of OSX. Apple got their pound of flesh for their OSX sale. Now if PsyStar is making illegal copies of OSX then Apple would have suffered damages but for now we will assume that PsyStar is buying legitimate copies of OSX. Apple can not sue just because they don’t like what another company is doing; they have to have a legal basis for their claim. They could ask for relief in the form of an injunction against PsyStar from loading OSX on to non-Apple branded machines but that is a poor strategy for Apple. They would have to go to court every time a computer integrator started loading OSX on a non-Apple branded computer for a customer. This would be vey expensive for Apple.

Some posters have stated that Apple will now have to support these users. Nonsense. Every Apple computer sold has an Apple serial number on it. Apple could easily refuse to support callers who don’t own an Apple computer. In fact, when I bought OSX for my B&W G3 last year, I called Apple for support. The first thing that Apple asked me for was the serial number of my Apple computer. If the computer doesn’t meet Apples published requirements they will not support it, even if it is an Apple branded computer. So Apple has no damages for support issues. In fact, Apple assumes no responsibly for it’s OS. Read paragraph 7 of the ELU. Apple assumes no responsibility for their OS on their own computers! It is left up to the end users to determine fitness of use. So how does the OS running on someone else’s computer cause Apple to now be responsible for support?

Some have argued that Apple sells a complete computer package and the OS is free. The problem with that argument is that Apple sells copies of OSX to anyone who walks into one of their stores and plops down $129. The cost of the OS may be subsidized by the hardware sales but no one forces Apple to charge $129 for OSX. Apple is free to raise the price to $299 if they want. Since they sell OSX as a retail product, a court would find that OSX is not free, it is simply bundled into the price of the Apple branded computer system. So no damages here either.

What are Apple’s damages?

With no damages, what is the course of action that Apple can bring against PsyStar? As far as we know, there is no written contract between Apple and PsyStar. So they can’t sue PsyStar for breech of contract. I am assuming that PsyStar is buying legal copies of OSX from an Apple dealer and re-selling them. That is NOT illegal under Florida law (if you think it is, please quote the statute). It doesn’t violate any written contract between PsyStar and Apple (there is none). The only possible contract breach that Apple can claim is the EULA. It is a shrink wrap license meaning that the terms are not mutual. The user has no ability to negotiate the terms of the agreement. A Florida court will have to decide if the EULA applies to PsyStar.

If your read the EULA you will see that kernel can be changed since it is based on open source software. It’s UNIX. So claims that it can’t be modified are bunk.

PsyStar is a legitimate business that sells computers and other operating systems. Apple will have a hard time convincing a court that PsyStar is the end-used and the terms of the Apple shrink wrapped license applies to PsyStar. Since PsyStar is a system integrator, Apple will likely loose that claim.

So, where is the contractual breach?

Consider these analogies.

If I buy a Ford 5.0L engine and put it in a Chevy, can Ford sue me? Can Ford prevent me from putting their engines in anything other than a Ford vehicle?

Since software is licensed and engines are bought, here’s a better analogy. If I buy a copy of Sony Pictures’ film “Crouching Tiger, Hidden Dragon”, can Sony’s EULA require me to play the movie ONLY on a Sony DVD player? I don’t own the movie; I simply have a license to watch it. Do you think a court would enforce such a EULA?

As long as PsyStar doesn’t infringe on Apple’s trademarks or copyrights, there is very little that Apple can do other than sue and make it very expensive for PsyStar. I’m sure that PsyStar changed the name of their computer based on legal advise about trademarks.

So let’s assume that Apple prevails. What are their remedies? Apple will not get their legal fess from PsyStar. They really have no damages so they won’t get much in compensation. The best they can hope for is that the court will order PsyStar to stop loading OSX on to computers that they sell. PsyStar will be able to continue to sell their computers and just leave it up to the end-user to load OSX.

So that leaves Apple suing the end-user. Apple has to start the litigation process over again. Do you think that Apple would win in court assuming that the copy of OSX in question was legitimately purchased from Apple? What kind of publicity would they get? Can Apple afford to sue each individual that buys OSX and loads it on a non-Apple branded machine?

Apple may have already let the cat out of the bag. XPostFacto lets you load OSX onto unauthorized computers i.e. unsupported Apple Computers.

http://eshop.macsales.com/OSXCenter/XPostFacto/Framework.cfm?page=XPostFacto.html

Why hasn’t Apple stopped the sale of 3rd party software that violates Apple’s EULA? Could it be that Apple knows that portions of their EULA are unenforceable?

So for all the lawyers here, what are Apple’s damages? What claim would you make if you were to sue PsyStar?

There’s a good chance that Apple will ignore PsyStar and do nothing. They may decide that the risk of loosing is greater than the hardware sales they loose to PsyStar. Apple will have to face a Florida jury which is risky for an out-of-state company. Image if a Florida court invalidated Apple’s EULA. That would be huge loss for Apple.

The ball is now in Apple’s court. Let’s see what they do. I for one will buy a PsyStar computer when I get back from Iraq – if they are still in business. If I get sued the most Apple can do to me is refund my $129 for my copy of OSX and make me use Windows or Linux. Is that a victory for Apple? Think about it. Does Apple want to tell users NOT to use their software? Microsoft would love it.
 
Rendwich said:
**snip**
Click to expand...

Well, it's mostly too late to do much now. It's common practice and widely accepted; civil rights or issues of basic equality are not at risk, so the overall importance of such a case is hardly worth it. At worst, the easiest fix is to put the EULA on the outside of the product packaging stating that purchase implies agreement. However, it should be noted that Apple's EULA also gives the explicit instructions that if the end user does not agree to the license terms, they are to return the product to the place of purchase. From there, however, they are at the whim of the retailer's return policy.

echowavex said:
That and the fact that Steve thinks everyone should use AIO machines because they are inherently more beautiful.

He has a hard time understanding that there are lots of people out there who need OS X to be more productive but don't fit into his narrow-minded product matrix.
Click to expand...
Well, the AIO is really intended for people without the basic competence needed to figure out how to connect color-coded, only-fits-in-one-place cables, people who wish to avoid cable clutter, people who want the performance of a larger PC over a laptop but still want a consolidated package & footprint, and tech labs where having integrated units is very convenient for use, maintenance, and set-up, and physical configuration. Sometimes, there just isn't anywhere to put a full tower. But offering direct alternatives in full- or mid-tower form would cannibalize sales.

aoresteen said:
PsyStar is paying full retail price for the copies of OSX. Apple got their pound of flesh for their OSX sale.
Click to expand...

The sale of the Mac OS implies that the customer already has a Mac to install it in, which means that the customer has previously payed for Apple's previous revision of OSX and Mac hardware. It is, essentially, only licensed as an upgrade to an existing system, much like the Windows "upgrades" that require a previous version to have been installed. The price of OSX as a stand-alone OS would probably be somewhere at or above $200, assuming enough high-volume sales.
What have they done that is "illegal"? The EULA is a legally binding contract no matter how you slice it, unless local or federal law determines otherwise. They broke a legally-binding contract. Civil suits are still lawsuits, particularly when the law is not definitely clear for a specific situation.

And yes, it is PsyStar who is suing Apple for the EULA, so PsyStar is fighting within California judicial jurisdiction. So, it's not that they have necessarily broken a law, they are preemptively challenging the possible existence of an unfavorable (for PsyStar) legal ruling. Read the article before commenting.

Also, just in general:

Can you drive a hydrogen-powered car just anywhere and expect to find a fill station in the U.S.? No.
Can you drive a Pagani Zonda on U.S. roads? No, it's not legal in the U.S.
Can you play Halo 2 on a PlayStation 3? NO.
Can you use a locomotive to fly to the moon? No.
Can a Rolls Royce take you from Los Angeles CA to Auckland, New Zealand on one tank of gas? Well, technically yes, but that's not the point.

If Apple were to allow other companies to distribute their own hardware with Mac OS, the price of Mac OS on those machines would be astronomical, because Apple still needs to make up the cost of continuous development, which is subsidized by hardware sales. Vertical monopoly or not, its the only way to create a solid machine that works period. That is exactly what customers want to buy, and that is exactly why Microsoft is in the dumpster. When you take away the vertical integration, you get another Microsoft.

If you disagree, read my full argument first then tell me what logical reason you have to disagree. I honestly want well-founded criticism, because I'm actually rather notorious for seeing most of the picture in Hi-Def and then missing a few crucial details that could unravel the entire thing. I'm serious.
 
Apple is a hardware company, they sell hardwares!!! and at the same time they sell softwares to compliment their hardwares!!!.

And I gave up on these ignorant peoples, they dont understand that part of the money they pay on their overcharged Apple product is to help pay the people behind the construction of the next OS X and R&D.

Again, if you dont like it, dont buy it!. Its as simple as that. AIO is good cause it makes your workspace look neater. Geez. Im getting fed up of people giving stupid reasons.

That and the fact that Steve thinks everyone should use AIO machines because they are inherently more beautiful.

He has a hard time understanding that there are lots of people out there who need OS X to be more productive but don't fit into his narrow-minded product matrix.
Click to expand...

Then answer me why HP and some other company are doing AIO too.
 
I'm of a mixed mind on any number of things this set of events has touched on, and would like to spend some time addressing them.

One:

As One Post Wonder pointed out massively up-thread from here, there's an awful lot of you folks here who either are ignorant of the fact -- or representing yourselves as being ignorant -- that in reality there's nothing all so special about "official" Mac hardware as provided by Apple. It's a tweaked or semi-customized motherboard built by any one (or probably several) of the major motherboard manufacturers out there, in essence mechanically customized to fit into one of several Apple-designed enclosures (Mac mini, iMac, Mac Pro, etc.) and, with the exception of the Mac Pro, generally made to be a desktop motherboard designed to use a laptop version of the Core2 series processor.

And, of course, that it uses one of several iterations of the Core2 processor, or one of several iterations of Xeon in the case of the Mac Pro.

Beyond this, it has a TPM chip added, with contents engineered by Apple.

If you go looking for the various hacked boot disks (Kalyway, etc.) to create a Hackintosh, what you find is that they use a "mildly" hacked version of Mac OS X, and a pre-installer installer to drop certain necessary components in place prior to the main installation occurs. And, in fact, just about the only reason you need to subsequently use any kind of "special" version of a released Apple update is due to Apple trying to fight against people using non-Apple hardware. If Apple were to stop doing that, then this whole thing would be a moot point.


Two:

A lot of people here are upset because of predicted disruption to Apple's business model, and the "dire consequences" it would have for the Mac community. So, let's take a look at this.

First, Apple meets every point of the classic "computer platform" company. They write the operating system and they sell the corresponding physical components you think of collectively as a "computer". They stand as a contrast to Microsoft, which still mostly fits the definition of a "software company", things such as keyboards, mice and console gaming systems notwithstanding. Since we're all probably agreed with this set of labels, let's move on to the heart of the matter.

Traditionally, Apple has made money selling both halves of the widget. In more recent years, they have become successful selling "both halves" of a number of other solutions, most particularly the iPod and the iPhone. So, for those of you keeping track of such things, this certainly helps add weight to the arguments of Apple remaining a hardware company AND the sane, successful and profitable nature of handling both sides of the widget.

However, let's go back to Apple's name change. A lot of people here might be tempted to believe this only means Apple was trying to acknowledge the fact that their business interests and product range have branched considerably outside the traditional role they have played -- that being a "computer platform company". And clearly, if Apple has any interest at all of shedding the hardware element of their operations, they certainly are taking their sweet time in moving in that direction.

But nevertheless, Apple seems to more and more be setting themselves up for being able to leave the hardware business, certain projects (again, the iPod and iPhone spring most immediately to mind) being exceptions.

Not to beat a dead horse or anything, but go back to the previous section in this post. Apple has switched from making their own systems to using Intel's systems. That's huge, and we really should not discount that point so readily. Apple no longer "engineers" their computers in the traditional sense. Now, they simply go a little bit further than other PC vendors such as Dell or HP because they don't just say "Give us a motherboard with this size and mount-point holes in these spots and AMIBIOS with these specific logos added to the firmware", but "Add a TPM chip, make it EFI instead, have it take a laptop CPU, etc. etc." In other words, it's not the same thing, but it's not that tremendously different, either.

Apple has simply found a way to turn using near-pedestrian hardware (relatively speaking) into a cash cow. But honestly, look at how much money they're generating from computer system sales vs. things such as the iPod. They are diversifying their financial income, and in a big way too. This means that eventually Apple may well, PsyStar notwithstanding, be in a position to go software-only and still have huge revenues, and probably even accomplish this without terribly gouging us the users in the process.

Remember something: it's not about what Apple says so much as about what Apple does. Apple's biggest rival and chief enemy is Microsoft. Forget what Steve said in 1997 that the war was over. It was more like "the war as you have come to know it is over". But the fight goes on, and probably more vociferously and stronger than ever. It's all about eventually beating Microsoft. I mean, come on: why produce a competing product if you don't want to win? And look at Steve's tactics: get into and then take over the portable music player market. Get into and take over the portable video player market. Get into and (you guessed it) try and take over the upper-mid to high end cell phone / smart phone market. And this also means shoving Microsoft out of those markets, which Apple has thus far generally been pretty successful in accomplishing. The jury's still out on the iPhone, perhaps, but the iPhone is becoming well-situated to do just that.

Microsoft doesn't make hardware (again, trivial peripherals aside) so Apple isn't trying to compete against that. They're competing against Microsoft's OS products. That means Apple knows that's where the money is. Period.

And the reason I've gone into such a level of specifics on this point is that I believe Apple either already has, or is in a transitionary process to make their money on software, not hardware.

Consider the other, seemingly unrelated factor that Apple's future is uncertain (at best) where Steve's continued involvement with it is concerned. Steve already knows he won't be at Apple forever, and won't be alive forever to cheer them on from the sidelines. So clearly he has to have some kind of strategy to ensure Apple won't close shop just because he doesn't work there anymore. And the best way to achieve that, in general terms, is to get Apple into the position of a respectful, responsible Microsoft (that is, make them huge and self-sustaining). Steve knows that not only will he not be around forever, but neither will Jonathan St. Ive, and he knows Apple cannot rely on sexy computer cases alone to sell their platform. He also knows that the Mac's platform is it's OS, not the hardware that runs it.

And all of this again leads us to the conclusion that Apple's future is in platform development and design, not physical execution.

Three:

If Apple does indeed become a software company, then that means it will treat it's OS as product, rather than merely half of a solution. And at that point, obviously Mac OS X will become something like Linux or Windows, instead of the hardware+Mac OS solution we know today. Who among us is wise and insider-informed enough to be able to state, with absolute certainty, that any of my above speculation isn't the case?

And if what I've speculated is correct, then (whether we like them or not) PsyStar's efforts could well become the next iteration of iPod-for-Windows. Remember the number of people "hacking" Apple's iPod solution (and I don't mean the device itself) so that they could use it in Windows, instead of just on a Mac? Doesn't anyone else see those events playing themselves out again here?


Four:

There are a number of us here who wish to see the Mac platform succeed, and to at least balance out -- if not out-and-out succeed -- the Windows platform as the dominant standard. We might well see a triumvirate of (not in any particular order) Windows-MacOS-Linux, and that would still be a good thing because, if nothing else, it means the user benefits by having a plurality of choices, both technological as well as philosophical.

Wouldn't it be interesting if PsyStar's actions here in some small way help to contribute to this?
 
someone said : "why is it illegal to put a chevy machine into a ford truck with modifications (ie.: apple os on a pc)

well, call the ford customer support of ford and say:"my chevy engine just died and left me on the road"
. . .

its a closed system, you have hardware and you have software that comes with it.

as far as im concerned, just stop selling OS X without a serial number of your mac machine or CDs of previous versions.
THEN it will be illegal, hence, constructing a machine with os X on it and with no ability to buy it anyway, hehehe...
thats what i would do if i want it to restrict it.

and that CAN be done.
pro argument: Integrity, Quality Control

if they loose they could just add to eula "run it on a non-apple machine at your own risk" >> no customer support
 
I couldn't help but post...

Being the son of successful lawyer...this is the best post I think I have or will ever read about this issue until Steve Jobs grows a pair (nothing personal to him) and confidently faces this issue...he has tried to keep it on the down low...I am here to say that there are a few ten-thousands of us...and 98% of the version of OS X86 are all under the exact same few license codes...Apple knows that this is a mounting issue...again Steve Jobs needs to man up and either denounce it, or make some changes. either way...as I said already...Apple is about to begin menopause and they aren't going to be able to hide it.



aoresteen said:
I’ve been reading this thread with interest. Most of the replies are not based on legal facts. In spite of what you may think, Apple is in a weak position here. Apple will probably prevail but that won’t be because they have the law on their side. They will prevail because they will make the cost of litigation so expensive for PsyStar that PsyStar will settle with Apple.

First, I would venture to guess that the majority of the posters here have not read Apple’s EULA for OSX. Here’s the link to it so you can read the terms for yourself:

http://images.apple.com/legal/sla/docs/macosx105.pdf


Lots of posts here state that it’s ‘illegal’ for PsyStar to do this or that. Please note PsyStar is located in Florida. Quote the Florida statute that is being violated if you believe that they are doing something ‘illegal’. PsyStar will have to have violated some Florida or Federal law for its actions to be ‘illegal’. What laws has PsyStar broken? Simply doing something that is contrary to a document published by Apple doesn’t make it ‘illegal’. It may be a breach of contract, allowing Apple to assert a civil cause of action against the user. There is no criminal component to it. A court will have to decide that a breech of contract has occurred and decide what remedies, if any, Apple is entitled to.

Apple will have to sue PsyStar in Florida and Florida law will prevail. Apple may try to get the case heard in Federal Court but that is not likely unless Apple can meet the requirements for a federal case. The Apple EULA paragraph 12 states that California law will be used but that most likely would be found unenforceable. California courts have no jurisdiction over Florida business with no California presence unless they agree to be bound by the foreign court. Apple will have to prove that PsyStar is bound by the EULA which isn’t as easy as it may seem. Most likely Apple will forgo the venue clause in its EULA and would file suite in Florida. Apple has a presence in Florida and a jurisdictional fight in California would most likely result in the case being sent to Florida for litigation anyway.

Now if PsyStar wanted to sue Apple over OSX software they would have to sue Apple in California and the forum selection clause would apply. Buy PsyStar isn’t suing anyone.

In order to sue, Apple has to have suffered some damages. How has Apple been damaged? PsyStar is paying full retail price for the copies of OSX. Apple got their pound of flesh for their OSX sale. Now if PsyStar is making illegal copies of OSX then Apple would have suffered damages but for now we will assume that PsyStar is buying legitimate copies of OSX. Apple can not sue just because they don’t like what another company is doing; they have to have a legal basis for their claim. They could ask for relief in the form of an injunction against PsyStar from loading OSX on to non-Apple branded machines but that is a poor strategy for Apple. They would have to go to court every time a computer integrator started loading OSX on a non-Apple branded computer for a customer. This would be vey expensive for Apple.

Some posters have stated that Apple will now have to support these users. Nonsense. Every Apple computer sold has an Apple serial number on it. Apple could easily refuse to support callers who don’t own an Apple computer. In fact, when I bought OSX for my B&W G3 last year, I called Apple for support. The first thing that Apple asked me for was the serial number of my Apple computer. If the computer doesn’t meet Apples published requirements they will not support it, even if it is an Apple branded computer. So Apple has no damages for support issues. In fact, Apple assumes no responsibly for it’s OS. Read paragraph 7 of the ELU. Apple assumes no responsibility for their OS on their own computers! It is left up to the end users to determine fitness of use. So how does the OS running on someone else’s computer cause Apple to now be responsible for support?

Some have argued that Apple sells a complete computer package and the OS is free. The problem with that argument is that Apple sells copies of OSX to anyone who walks into one of their stores and plops down $129. The cost of the OS may be subsidized by the hardware sales but no one forces Apple to charge $129 for OSX. Apple is free to raise the price to $299 if they want. Since they sell OSX as a retail product, a court would find that OSX is not free, it is simply bundled into the price of the Apple branded computer system. So no damages here either.

What are Apple’s damages?

With no damages, what is the course of action that Apple can bring against PsyStar? As far as we know, there is no written contract between Apple and PsyStar. So they can’t sue PsyStar for breech of contract. I am assuming that PsyStar is buying legal copies of OSX from an Apple dealer and re-selling them. That is NOT illegal under Florida law (if you think it is, please quote the statute). It doesn’t violate any written contract between PsyStar and Apple (there is none). The only possible contract breach that Apple can claim is the EULA. It is a shrink wrap license meaning that the terms are not mutual. The user has no ability to negotiate the terms of the agreement. A Florida court will have to decide if the EULA applies to PsyStar.

If your read the EULA you will see that kernel can be changed since it is based on open source software. It’s UNIX. So claims that it can’t be modified are bunk.

PsyStar is a legitimate business that sells computers and other operating systems. Apple will have a hard time convincing a court that PsyStar is the end-used and the terms of the Apple shrink wrapped license applies to PsyStar. Since PsyStar is a system integrator, Apple will likely loose that claim.

So, where is the contractual breach?

Consider these analogies.

If I buy a Ford 5.0L engine and put it in a Chevy, can Ford sue me? Can Ford prevent me from putting their engines in anything other than a Ford vehicle?

Since software is licensed and engines are bought, here’s a better analogy. If I buy a copy of Sony Pictures’ film “Crouching Tiger, Hidden Dragon”, can Sony’s EULA require me to play the movie ONLY on a Sony DVD player? I don’t own the movie; I simply have a license to watch it. Do you think a court would enforce such a EULA?

As long as PsyStar doesn’t infringe on Apple’s trademarks or copyrights, there is very little that Apple can do other than sue and make it very expensive for PsyStar. I’m sure that PsyStar changed the name of their computer based on legal advise about trademarks.

So let’s assume that Apple prevails. What are their remedies? Apple will not get their legal fess from PsyStar. They really have no damages so they won’t get much in compensation. The best they can hope for is that the court will order PsyStar to stop loading OSX on to computers that they sell. PsyStar will be able to continue to sell their computers and just leave it up to the end-user to load OSX.

So that leaves Apple suing the end-user. Apple has to start the litigation process over again. Do you think that Apple would win in court assuming that the copy of OSX in question was legitimately purchased from Apple? What kind of publicity would they get? Can Apple afford to sue each individual that buys OSX and loads it on a non-Apple branded machine?

Apple may have already let the cat out of the bag. XPostFacto lets you load OSX onto unauthorized computers i.e. unsupported Apple Computers.

http://eshop.macsales.com/OSXCenter/XPostFacto/Framework.cfm?page=XPostFacto.html

Why hasn’t Apple stopped the sale of 3rd party software that violates Apple’s EULA? Could it be that Apple knows that portions of their EULA are unenforceable?

So for all the lawyers here, what are Apple’s damages? What claim would you make if you were to sue PsyStar?

There’s a good chance that Apple will ignore PsyStar and do nothing. They may decide that the risk of loosing is greater than the hardware sales they loose to PsyStar. Apple will have to face a Florida jury which is risky for an out-of-state company. Image if a Florida court invalidated Apple’s EULA. That would be huge loss for Apple.

The ball is now in Apple’s court. Let’s see what they do. I for one will buy a PsyStar computer when I get back from Iraq – if they are still in business. If I get sued the most Apple can do to me is refund my $129 for my copy of OSX and make me use Windows or Linux. Is that a victory for Apple? Think about it. Does Apple want to tell users NOT to use their software? Microsoft would love it.
Click to expand...
 
The legal issues are no doubt central here, but really i'm interested in how these PsyStar machines would look.
Ho hum pics : blogs.zdnet.com/BTL/?p=8485, but it'd also be some edge if some of the key hardware were more upgradeable/accessible than iMacs - like hard drive/video card/processor ...
 
Well Pystar is a hackintosh, meaning if you upgrade it, you will encounter driver or .kext problems. Your only solution is to refer to the OSX86 community.

After learning a lot from the OSX86 you will finally realize that just about any PC can run OS X and Pystar is actually ripping you off by buying their product.

Somehow I dont know why, when I login to Apple website using hackintosh, they website identified it as a PC although Im logged into it using Tiger.
 
In the end, I dont really think it matters who wins. The looser will always be the average consumer who buys one with Leopard preinstalled. Anyone who has the knowledge to install, run and maintain a hacked operating system by themselves will not pay the extra $ to have it preinstalled.

The people who do are going to be the average joe who might be fed up with Microsoft and has heard of or seen the ease of use of Apple's systems. If they buy one of these machines, they will have little to no support other than what is available on the hackintosh forums where the average consumer will not be able to find an answer quickly if at all. Apple will not support them and I doubt Psystar will have a great support team...
 
vaguely said:
The EU has very strong brand protection laws. Relying on EULA ambiguity or copyright peashooters won't help if Apple turns up with its brand protection Panzers.

And that Pystar has already had to take Mac off its name suggests that Apple is very aware of its brand image (put in file marked "duh").

I don't know what it is called in the US, but the usual term in the UK is "passing off".

I think Pystar would be on very shaky ground if it wanted to break the EULA on the one hand, and then rely on something similar to warn buyers of the danger of using their kit.
Click to expand...


but what essentially is a non-mac mac.. its a PC..!! same as a MAC is now essentially a PC.. so if i sell a machine that would allow OSX / Windows / Linux on it.. then Apple cant to anything,... only.. if i make the stupid mistake of saying it is some king of MAC can i poss get into trouble.
 
I'm getting the impression as are others here that Psystar is some guy that got a deal on a case or two and is getting a free ride on the publicity. This is after all not that difficult a thing to put together.

I am going to miss my G4 PowerMac though. It opens up with a single pull with all components exposed and easy to work on to mix and match. That design was a great example of the beauty of Apple packaging.

What happened? Sacrificed to the idea of a return to the principal of a Mac you can't open or are discouraged from opening. I owned two Mac Plus compacts and they were open at your own risk machines as well.

IMHO the ease of modification and DIY upgrades began to disappear with the G5s and even the G4 Minis.

It almost looks like the spurious principal of planned obsolescence. But it does stem from a desire to keep the customer's hands from getting dirty(meddlesome?).


I would also be willing to bet that EULAs will at some point end up being posted on package exteriors.

Like the case Adobe lost a while back. A judge ruled that the EULA was not violated on two conditions:
If the EULA was not available to be read without opening the program and if the party involved did not open the program.
Some details here:
http://www.out-law.com/page-2128

Another poster earlier cited another link to the Adobe case, which I can't find at the moment. It might have been this:
http://en.wikipedia.org/wiki/SoftMan_Products_Co._v._Adobe_Systems_Inc.

Speaking of the Apple EULA, I posted this tidbit to a local MUG newsgroup a while ago:


Thought this was amusing
From:
Apple Computer, Inc.
Software License Agreement for Mac OS X
Single Use License

2. Permitted License Uses and Restrictions.

C. Except as and only...etc. THE APPLE SOFTWARE IS NOT INTENDED FOR
USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT
MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE APPLE SOFTWARE
COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR
ENVIRONMENTAL DAMAGE.

Maybe I have a sick sense of humour.
Click to expand...
 
Personally, Im hoping the consumer wins on this. Maybe this will force Apple into making a more affordable version of the mac pro.
 
sushi said:
No it does not.

And I hope things like this do not cause Apple to change their ways.
Click to expand...
You're making it sound like it's courtesy and user-friendliness from Apple's side. I think it's pure cold economics, just like everything else they do. Since you can only put OS X on a Mac and you can only buy a Mac with OS X, the only users being able to (technically) illegaly install a copy are the ones who buy a machine right before the os change. And even then, they had to purchase the licence for the old version so basically every single Mac user bought OS X at least once.

Some other Apple software that doesn't come bundled with their hardware (like iWork) uses serial numbers.
 
wheelhot said:
But I have a question that will make some of you realize what if Psystar wins.

Do YOU want to pay $600 for Leopard? DO YOU want the next OS X to be sold in packages like Vista?.

Have you ever thought why Apple able to sell all the features in Leopard at the price of Vista Home Premium?.
Click to expand...

If that is the only viable option in that situation, i welcome it.

Do you think, that this will rise the number of illegal copys of MacOS X on torrents and other P2P sites? Will this be the end of Apple OS software business model? Hard questions, you know?
 
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