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Apple Sues Psystar over OpenComputer
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The "OS designed for the hardware defense" was never valid and in fact has got the argument upside down. There is one reason, and one reason only, why Psystar cannot install MacOS X on its computers: Because Apple is the copyright owner, and Apple doesn't want Psystar to do this. There is no other reason. And that is enough reason.
However, the fact that a Dell (or a Psystar) computer uses the exact same parts as an Apple computer actually is an Apple's favor: That Psystar computer can, according to Psystar, and even according to Psystar's court filings, run Windows or Linux. Therefore there is no reason why it would be anti-competitive from Apple to deny Psystar a license to install MacOS X. If Psystar built a MacOS X compatible PowerPC computer, and MacOS X were the only operating system that could be run on that computer, then Psystar would at least have the tiny beginning of an argument against Apple. But their computers run Windows (or at least they claim so; I haven't tried it and haven't met anyone who did), so there is no possible argument why Apple should allow them to run MacOS X.
Psystar also tried to trick the court by telling it about a decision in another case saying that MacOS X was not competing with Windows in the market of Intel-compatible PCs. That was correct five years ago, when MacOS X was running on PowerPC computers, not on Intel-based computers. It is incorrect now, exactly for the reason you state: Because Dell and Apple and everyone else use the same hardware, therefore MacOS X and Windows are now direct competitors in the same market.
What makes you think you don't have a "free market choice"? You have the choice of buying what Apple offers, or buying what Dell offers, or buying what HP offers, and so on, or buying nothing at all.
A copy of MacOS X with a license to install it on a computer that is not made by Apple is not something that Apple offers, and they are entirely in their rights not to sell it. Now for you as an end user, Apple doesn't care too much what you do. If a company like Psystar does it, together with rhetoric against Apple coming from the company, then of course they will get sued.
You are accusing Apple of "greed" for trying to make money off the operating system that they have created at huge expense (after paying $400 million to NeXT for an earlier version). Now what do you call Psystar's motivation?
Somebody may have brought it up somewhere in these 54 pages, but how does this relate (if at all) to how Sun tied Solaris to their hardware and HP tied HP-UX to their hardware? Both were variations of UNIX, and one of them (Solaris) has since gone open source. However, Sun was using x86 computers for years with their proprietary OS that was not available on other systems. I don't know if their systems were close enough to generic x86 boxes to allow Solaris to run on said generic boxes, but it seems like a similar situation. Does anybody have any input on this?
Psystar isn't trying to make money off Apple's operating system. They buy it from Apple. They're selling hardware. Obviously, if Apple IS competing with Dell then what's wrong with them competing with Psystar too? It's precisely because they are *NOT* competing with Dell that Psystar exists. If I own a load of Mac software, I'm not going to buy a Dell because none of my software would work anymore! How ANYONE can say Dell is competing with Apple when their software isn't at all compatible is beyond me. They're two separate platforms and therefore two separate markets.
No, they don't buy it. Through all these pages, you just don't seem to understand the principle of intellectual property and copyright, and your persistence in this fruitless train of thought is, over the months, starting to come across as trolling.
Just as when you buy a copy of OSX, you don't own the code; you own the license to install it. The license is quite clear:
Why is that? Because the software belongs to Apple. The open-sourced components of the software are available on Apple's site.
and there is Apple's defense.
Tying is NOT illegal. You can tie programs, software/hardware etc all you want. and it is not, in and of itself, illegal.
it is only illegal if you abuse strong market power to tie two items not required to be together to force something on folks in an unfair way. Example being Microsoft making companies put Internet Explorer on machines when they pre-installed Windows AND not allowing them to put 3rd party browsers as well. They tried to argue that the two go together and are part of the same software but that was proven false. the two are totally independent and don't rely on one another. it was deemed abusive for Microsoft to set said rules.
So for Apple's tying of their choice of hardware and the OSX, they would have be abusing a position of strong market power. Now if the market was Macintosh computers, of which they have currently 100% of the market, heck yeah it is abusive.
but since, as gnasher points out, the core hardware is the same, the market becomes the same as well. and in the Intel based personal computer market, Apple has like 8% and Windows has like 80+ (with linux taking the rest). so no strong market power, thus Apple can do what they wish in the tying game.
so then the issue becomes copyright, trademark and the validity of the EULA/the issue of whether Psystar was acting as a reseller.
they might not be making money off the actual OS software, but they are making money using the inclusion of the OS to sell their hardware.
so the greed issue still stands. Psystar, like all other companies, is about making money.
by a similar token, when I buy a copy of Iron Man on DVD, I don't OWN the movie. I can't rip it off the disk and post it for the world to download for free. I can't burn copies of it onto blank disks and sell it on the street corner. and so on.
As far as I can tell, SUN & HP were never sued by anyone for tying. Everyone just used SCO or other variants of UNIX. Doesn't mean that they didn't do somthing that was illegal.
And you Blue Velvet don't get it when the courts clearly disagree with your positions.
You can not put anything you want into a license because you are the copyright holder and expect it to enforced by law. For example, if Apple put this clause in their license for OSX, would you defend Apple?
"This software can not be used by African-Americans, persons of the Jewish faith, and females under five feet in height."
This clause would be promptly tossed by the first court that heard the case as it violates numerous US laws (both statute and case).
I have referred this forum numerous times to the 2008 AutoDesk case where the court upheld the 1st Sale Doctrine as it applied to shrink wrapped software.
http://arstechnica.com/news.ars/pos...desk-affirms-right-to-sell-used-software.html
Let me explain it to you. The court held that
"AutoDesk argued that it only licenses copies of its software, rather than selling them, and that therefore any resale of the software constitutes copyright infringement.
But Judge Richard A. Jones rejected that argument, holding that Vernor is entitled to sell used copies of AutoDesks software regardless of any licensing agreement that might have bound the software's previous owners. Jones relied on the First Sale Doctrine, which ensures the right to re-sell used copies of copyrighted works."
The court rejected the argument that the software is licensed. He held that is sold just like a book or DVD. Note that this does NOT mean that the buyer owns the copyright; the buyer has purchased a COPY of the work but can not make copies and sell them. That is what the copyright protects against. The downstream buyer can sell & use the single copy of the copyrighted work. Note that the court applied this to shrink wrapped software only, not mutually negotiated software licenses. Apples OSX license is of the shrink-wrap variety; you do not enter into license negotiations with Apple when you want a copy of OSX.
Consider this. Sony Pictures sells copies of the James Bond movie Casino Royale. Suppose in their license for the copy of the movie you buy it said:
"This DVD can be played only on Sony-labeled DVD players. You agree not to play the Sony movie on any non-Sony-labeled DVD player, or to enable others to do so."
Now Best Buy runs a Christmas sale of Toshiba DVD players for $39 and includes a copy of Casino Royale with the Toshiba DVD player.
Sony is outraged and files suit against Best Buy for copyright violation. Would Sony's position be upheld by the court? By your logic it would. By case law it would not.
Note that when you buy a DVD of a movie you get a license to use it for HOME use. You can not use it at a theater and charge other people to watch it.
Apple can not put any terms it wants into its OSX license under the guise of intellectual property rights. It, just like every other company and individual, has to comply with the law and the law will decide the scope of intellectual property rights that are enforceable or not.
The recent AutoDesk case cleary supports Pystar's position and no amount of Apple mantra makes it go away.
The thing here is that there are two different issues. The copyright infringement case brought about by Apple is for Psystar modifying Apple software. The unauthorized use and sale of an unmodified version was perfectly legal. Apple is well within its rights to not support unauthorized machines. The second issue is the anti-trust case brought about by Psystar again Apple.
There are five possible outcomes here. First, there could be an out of court settlement by Apple and Psystar. This would probably be the smartest move as Apple does not want to lose the anti-trust portion. Second, Apple could win on mouth issues. Third Pystar would win both counts. Forth, Psytar could win the copyright case, but lose the anti-trust case. The fifth and last possibility is that Apple could win in the copyright case, but lose the anti-trust case.
Apple losing the anti-trust case could be very bad. Best case would Apple having to license its operating system. Worst case, the judge could rule that Apple needs to be split into two or more companies. Personally, it would have been in their best interests to just leave them be. An unauthorized hack cloner is going to pose no long term threat to Apple. Sure, they can put them out of business if Apple wins, but they're potentially risking a lot if they lose.
Clearly you have not read Apples' complaint against Pystar. Nowhere in the complaint does Apple claim that Pystar has modified Apple code. If you are sure that Apple claims that Pystar modified their code please point me to the paragraph in the complaint that states that Pystar modified their code. The copyright claim begins in paragraph 22 of the complaint.
Since Apple isn't claiming that Pystar modified its code, let's put to rest any arguments claiming that Pystar has 'illegally' modified Apple code.
Since you aggree that the unauthorized use and sale of an unmodified version is legal, that leaves only the anti-trust issue brought by Pystar.
I disagree that 'Apple losing the anti-trust case could be very bad.' If (and I say IF) Apple is engaged in anti-trust activities they need to be stopped and the law enforced. Apple should not be alowed to engage in illegal activities while every other company has to comply with the law. That is the point of having laws on the books.
However the judge rules, the losing side will apeal. Things won't change for at least 14 months if this case goes to trial.
I understand on a fundamental level why Apple is suing Psystar, but really, Psystar is catering to a market that Apple completely ignores.
The total sales of Psystar won't affect Apple's sales one smidgeon. Psystar caters to people desperate for a mid range tower or the enthusiast.
Again, I understand why Apple needs to protect their name, trademark, etc. but it all seems so ridiculous.
The total sales of Psystar won't affect Apple's sales one smidgeon. Psystar caters to people desperate for a mid range tower or the enthusiast.
Again, I understand why Apple needs to protect their name, trademark, etc. but it all seems so ridiculous.
Perhaps that was true when they were selling low-end towers but Pystar has moved into the server market and the Mac Pro arena with some of their more powerfull machines.
When Pystar started offering servers Apple sued.
Dell started off small in a dorm room....
Pystar can loose their counter-claim and still win the case. Apple still has to prove their claims.
Carr & Ferrell are no lightweights in the intellectual property law area. They handled the Burst.com case. In the Burst.com case Apple was forced to settle and pay them $10 million in fees.
I'll wait for the judge to decide.
About Carr-Ferrell
Carr & Ferrell LLP is one of Silicon Valleys foremost technology law firms, committed to providing a unique blend of legal, business and technical expertise. Focused on technology innovation and protection, the firm's team of professionals combines technical degrees and experience with proven legal and business experience. Distinguished by its demonstrated competencies in patent, corporate and litigation matters, Carr & Ferrell LLP enables its clients to strategically accelerate the growth and success of their businesses. The firm has a proven track record in developing patent portfolios and successfully asserting them in both licensing and litigation contexts. For more information, visit www.CarrFerrell.com.
Did I say they should be allowed to engage in illegal tying of products? No and I've been arguing quite the opposite for over three years now. What I'm saying here is that Apple would be in a far better position, if they were to settle out of court. If it comes down to a court ruling, the judge can levy fines or he/she can even break the company up. I like having my operating system made by someone who makes computers themselves.
If Apple loses, what do you think their reaction would be? Think they will stand by and let clone makers benefit from their investment in OS X?
Would they impose hardware verification that is protected by DRM to legally lock out clone makers in the USA?
Will they make OS X phone home to verify a real Mac being used? While it hasn't worked for MS on hardcore pirates, it has made it a hassle for casual users.
Is anyone that has purchased a Psystar computer concerned that you cannot reinstall OS X if something goes wrong with the OS or HDD?
Would they impose hardware verification that is protected by DRM to legally lock out clone makers in the USA?
Will they make OS X phone home to verify a real Mac being used? While it hasn't worked for MS on hardcore pirates, it has made it a hassle for casual users.
Is anyone that has purchased a Psystar computer concerned that you cannot reinstall OS X if something goes wrong with the OS or HDD?
Geez, since you are being so hypothetical and all, why don't you suggest this: that Apple will finally provide hardware that people want, thus making it harder for Psystar to sell computers because customers will have a choice?
Corporate fearmongering, jeez, how passe...
Customers must be wanting the hardware Apple sells since they keep on selling more and more of them. It's funny how people equate what they want with what everyone else wants.
I was asking for opinions of what Apples next move would be in the event that they lost and gave some options they have as examples. I was not trying to scare you or anyone else.
Are you saying you feel they would offer low cost Mac's?
They wouldn't have much a choice. Besides, its better that the user stay on the platform and Apple gets software sales than no money at all.
If they did so after losing, Apple would probably be broken up separate hardware and software companies by the courts with perhaps the iPod division spun off as well. What they could and should do is require EFI firmware as a requirement.
Probably, but at this point, they were desperate enough to take the risks.
They already offer the Mini. A cheap Mac is not what we seek. Apple doesn't seem to get that neither the iMac nor the MacPro workstation are acceptable option for the traditional PowerMac user. They like to put users in tidy little categories that don't quite match up to reality.
Third claim, Paragraph 43c
"43. Psystar breached the License Agreement(s) by:"
"d or distributing Mac OS X softare that has been modified; and"
Psystar admits to modifying code, their claim is that Apple has no rights to any code in Mac OS X they modified because it is all open source. So no harm, no foul from their viewpoint.
They simply neglect to mention that it is Apple licensed open source code they downloaded from Apple's site, modified, and used. The stuff off the Darwin code page.
They also redirect the Software Update to their servers, which gives them a chance to test and modify all Mac OS updates for their customers. And they modify, host, and deliver these files to their customers as needed.
Considering that Burst.com wanted about 100 million dollars, and got most of their patents invalidated in the course of that case, I think they probably wished they had hired someone competent instead of PCarr & Ferrell.
If you look at Apple's latest filing at
http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv03251/204881/27/0.pdf
it doesn't look to me as if they have been doing a competent case so far. When PCarr & Farrell tried to argue against Apple's motion to dismiss Psystar's counterclaims, all they came up with where court decisions that were either outdated or irrelevant.
On top of that they made the fatal mistake of mentioning in their court briefs that Apple has competitors, like Microsoft, which plainly contradicts their claim that Apple is a monopoly without competitors. That is just gross incompetence. A mistake that even a beginner shouldn't make. So Apple can and does say: Look here, judge. We are not a monopoly. We have lots of competitors, because Psystar says so!
The problem with Apple's behavior towards its customers is that is been ever more "colonic". The great hardware that we used to be offered on the desktop/laptop level is being replaced, step by step, by overpriced and ill-conceived options (e.g. glossy screens, no firewire).
The latest splattering of laptops is too big a mess to clean up.
So, since a competitor has emerged, little itty Psystar, you countenance the possibility that the legal system in the USA will actually rule in favor of Psystar and greater marketplace competition by suggesting a litany of responses from Apple, each more "colonic" than the next, and none of them good. I list your offerings again for reference:
As I examine that post I wonder, "why doesn't it cross this guy's mind that Apple will actually start to do the right thing again, and offer hardware that people want to buy, instead of making it lawyerly harder for them to get the hardware that they want?" Then I see some other posts of yours, where you try to scare people into staying away from a hackintosh, and I see a pattern. Basically, you discourage Apple hardware users from imagining that they will, once again, get the hardware that they want--even if it is at an "Apple markup", or as a DIY hackintosh--and, instead, insinuating in no uncertain terms that they will just have to shut up and eat their porridge.
So, I ask again: why don't you list among your options that Apple will offer people the hardware that they want? Sometime in the late 1990's, Apple decided to start giving its customers what they wanted, instead of the perpetual shoehorning into ever more expensive, incompatible and even outright inferior options; thus their renassaince. For the last couple of years, they have not so slowly and most surely ridden the wave of favorable reviews while peddling ever more mediocre and narrow options.
Now you say "low-cost Macs?", and I wonder if you have been following this or any other thread here lately. People are pissed! The lack of low-cost Macs (let's discard the Mini for a moment as an overpriced, unnecessarily obsolete option) is but one of the things that has angered users here; the decline of the more expensive iMacs and laptops is probably a more dominant factor.
So, no, I do not discard the possibility that enough execs at Apple will see that their greed and contempt for users has gone too far, and by extending a technological apology to us, they once again offer the hardware that we have been very clearly, persistently, and consistently demanding ever since the iMac went glossy-only. Because if the legal system in the USA decides that consumers deserve to have such an option in the marketplace, then Apple will have to choose between gradually losing relevance or simply returning to what they were, until rather recently, doing best.
So if you don't agree with my opinion and by all inferences apparently think I'm an idiot for not agreeing with you on intellectual property and copyright laws, that makes me a "troll" ? A troll is someone who doesn't even believe what they're saying and I'm hardly alone in my views on this case (there are 55 pages in this single thread, after all). The judge decided NOT to throw out Psystar's case against Apple and ordered a trial so while it's possible my opinion regarding Apple's Eula is wrong, it hasn't happened just yet. But if participating in this thread is going to get me banned, I guess I better I bail out since my interest in Macs goes far beyond the Psystar legal question. I just bought my 2nd Mac for goodness sake (a brand new MBP).
In all honestly, though, I don't think a moderator's opinion on copyright law should define who is allowed to give opinions on the subject. But in this particular case, it will be the courts that decide who is wrong. I am content to await the outcome at this point.
On that point you are completely wrong. What happened so far: Apple started the court case. Psystar came up with some ridiculous counterclaims. Apple sent a motion to dismiss the counter claims, Psystar sent a memorandum why they think Apple's motion is wrong, Apple sent a memorandum why they think Psystar's memorandum is wrong. That is where we are right now.
Exactly at this point the judge will take Psystar's counterclaims, Apple's motion, Psystar's memorandum, and Apple's memorandum, and decide whether the Psystar's counterclaims will be dismissed. That is the order in which these things go: Apple made a motion, the non-moving party sends a memo against the motion, and the moving party sends another memo against the memo, and then the judge decides.
This has not happened yet. The judge has not decided on anything as of today. He has most definitely not ordered a trial on Psystar's counterclaims. And after reading Apple's reply memo, I would say that the chances of getting this dismissed are quite good for Apple, since they refuted each and every of Psystar's arguments, and Psystar's lawyers even managed to admit that Apple is no monopoly.
The court hearing was on November 6th, and the judge said that the parties should expect his ruling on whether Psystar's counterclaims will be dismissed "in the next two weeks" (apparently counting from November 6th).
And Psystar is again making the bizarre argument that because Apple tells everybody that its computers are better, they are therefore in a different market. Which is nonsense; if Apple computers were in a different market, then any comparison with PCs would be pointless. Microsoft seems to agree one hundred percent with Apple, that's why they are reacting to Apple's "I'm a Mac" campaign with their own "I'm a PC" campaign. And a nice quote:
(Judge) Alsup questioned (Psystar's lawyer) Springer when the attorney cited the passion that Mac users have for the platform, noting that Ford truck owners might feel the same way about their pickup trucks in regards to ones from Chevrolet. "You wouldn't say they have a monopoly," the judge said.