Apple Sues Psystar over OpenComputer

[gnasher729]

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 don't know what kind of world you're living in. Everyone I know loves the new MacBooks. Well, everyone outside of MacRumors obviously, but that is 99.9999% of the real world.

And you are calling Psystar a "competitor" for Apple. They are not. They are selling hardware that everyone can build same or better in their garage. They try to convince you to buy their hardware by ripping off the one thing that makes Apple stand out from the rest: Their operating system. That is not competition. That is the same as allofmp3.com not being "competition" for the iTunes store. One was cheap because they ripped off the artists, one is more expensive by giving money to the people who produce the music. Same here. Trying to sell crappy hardware by adding an illegal copy of MacOS X is not competing.

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."

Since Apple is not a gang of racist thugs, they don't put that kind of clause into their MacOS X license. I can't quite figure out why you propose this. Would it make you feel better if Apple didn't sell to African-Americans, or to Jews, etc. ? Very strange.

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 AutoDesk’s 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 recent AutoDesk case cleary supports Pystar's position and no amount of Apple mantra makes it go away.

It doesn't, because you don't understand what that case was about. That case was about the first sale doctrine. There is nothing that Apple can do to stop PsyStar from selling whatever copies of MacOS X they bought, nicely packed in their original box, together with a license that says "may only be installed on Apple-labeled hardware". And if Psystar bought used Macs, installed Leopard, and resold these Macs at a profit, nothing that Apple could do about that.

That, however, is not what PsyStar is doing. They are installing these copies of MacOS X on their own hardware, against the EULA, and that is not covered by the first sale doctrine in any way. Since that first step is already copyright infringement, selling those computers doesn't make things any better. Apparently PsyStar also modifies the software, and again, modified software is _not_ covered by the first sale doctrine. Even if installing the modified software were legal, reselling the computer with the modified software is _not_ covered by the first sale doctrine. And while the first sale doctrine overrides license terms that prevent you from reselling the software, it does _not_ let you get around any other terms of the license. Whoever you sell a copy of MacOS X to, has to agree to the license just as you do.

Whenever you see a court case, you have to actually examine whether it applies to the matter here. There are very few things that you cannot put into a EULA with legal effect: Things that are plain illegal (like discriminating against customers based on their race, religion or gender; discriminating based on their hair colour might even be legal), and very few rights that copyright law expressly gives you, like the first sale right and the right to modify software to make it work for its intended purpose (in this case the intended purpose is to run it on an Apple-labeled computer, modification for any other purpose is not covered). Since Apple's EULA doesn't contain any of these terms, that court case against AutoDesk doesn't affect Apple at all.

 

[t0mat0]

So when's the date when we hear next about this case?

 

[FrankieTDouglas]

I don't know what kind of world you're living in. Everyone I know loves the new MacBooks. Well, everyone outside of MacRumors obviously, but that is 99.9999% of the real world.

Ahem...

https://forums.macrumors.com/threads/583377/

http://discussions.apple.com/thread.jspa?threadID=1757089&tstart=0

http://discussions.apple.com/thread.jspa?threadID=1751996&tstart=60

http://www.appleinsider.com/article...o_outrage_over_macbooks_missing_firewire.html

http://www.podcastingnews.com/2008/10/18/petition-apple-to-save-macbook-firewire-ports/

http://createdigitalmusic.com/2008/10/14/what-the-new-apple-laptop-port-changes-mean-for-audio/

http://blog.wired.com/gadgets/2008/10/apple-quietly-k.html

http://www.independent.co.uk/life-s...nnouncement-macbook-ramifications-963440.html

http://www.filmmakermagazine.com/blog/2008/10/apple-firewire-youre-fired-on-macbook.php

Perhaps you should meet more people.

 

[gehrbox]

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.

Clearly you misunderstood my post. I gave examples that I thought were possible given Steve Jobs track record of following his own path. I was by no means limiting the possibilities, just giving examples. I don't think Apple is likely to offer Mac's at the same price point as HP or Dell. It's not their business model. Could they change it? Sure, but its unlikely especially with Steve doing the driving.

Can you give some examples of Apple giving users the options they wanted in the late '90s?

 

[hihater]

Ahem...

https://forums.macrumors.com/threads/583377/

http://discussions.apple.com/thread.jspa?threadID=1757089&tstart=0

http://discussions.apple.com/thread.jspa?threadID=1751996&tstart=60

http://www.appleinsider.com/article...o_outrage_over_macbooks_missing_firewire.html

http://www.podcastingnews.com/2008/10/18/petition-apple-to-save-macbook-firewire-ports/

http://createdigitalmusic.com/2008/10/14/what-the-new-apple-laptop-port-changes-mean-for-audio/

http://blog.wired.com/gadgets/2008/10/apple-quietly-k.html

http://www.independent.co.uk/life-s...nnouncement-macbook-ramifications-963440.html

http://www.filmmakermagazine.com/blog/2008/10/apple-firewire-youre-fired-on-macbook.php

Perhaps you should meet more people.

Right and that still acount for for like 1%.

 

[Sun Baked]

So when's the date when we hear next about this case?

Was posted, the current court calender requires the JAMs Mediation to take place (completed) by Jan 31st.

The judge has posted the current dates leading to the the trial already.

Discovery due by 6/26/2009. Jury Trial set for 11/9/2009 07:30 AM in Courtroom 9, 19th Floor, San...

 

[czachorski]

Probably, but at this point, they were desperate enough to take the risks

Desperate enough or cheap enough?

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.

You mean in the late 1990's when Apple was the "beleaguered" computer company teetering on the edge of bankruptcy? The change of course they set then is exactly the course they are still on now. You personally just don't like where it is going but make no mistake: this course saved them.

So, no, I do not discard the possibility that enough execs at Apple will see that their greed......

greed = profit motive. It is a good thing. It's what drove them to innovate and give us OS X, iPods and iPhones, etc. You scoff at the decisions that profit causes while you enjoy the very fruits it produces at the same time. Too funny.

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..

Sure, people are pissed. They want good stuff for cheap prices, and would prefer that Apple give them their stuff cheaper. That's what people want. That's what everyone wants. I'm pissed that big-screen TV's and Harley Davidsons are so expensive too. The very notion of customers being pissed at the lack of a low-cost option cracks me up, because it acknowledges that they fundamentally want what Apple is offering, thus validating their pricing. If Apple's motivations were only to not piss people off over price, they would give things away and all work for free, and get their suppliers to supply for free. Not pissing off customers over price is not their objective. Profit is. Tension over price and value are natural in any transaction, and if they don't exist on both sides of a transaction, then one party or the other is probably leaving something on the table.

 

[aoresteen]

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.

Pargarph 43 is Apples's 3rd claim for relief and it deals with breach of contract issues not copyright violation. Pystar denies this. In Pystar's counterclaim they deny modifying any Apple code. Paragraph 12 line 13.

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!

I won't argue that Apple has good lawyers or that Pystar has bad ones. Let's wait to see how Judge Alsup rules.

Since Apple is not a gang of racist thugs, they don't put that kind of clause into their MacOS X license. I can't quite figure out why you propose this. Would it make you feel better if Apple didn't sell to African-Americans, or to Jews, etc. ? Very strange.

That example was for the folks here who have stated that the copyright holder can put any terms they want into an EULA and the court would uphold it. I selected an extreme example to show them that that is not the case. I do not belive that Apple would do such a thing.

A closer example to this case was my Sony Pictures DVD example.

gnasher729 and I are in the minority here as we have actuly read all the court documents. Both sides have good arguments and it is up to Judge Alsup to decide which way this case will go.

 

[Sun Baked]

Pargarph 43 is Apples's 3rd claim for relief and it deals with breach of contract issues not copyright violation. Pystar denies this. In Pystar's counterclaim they deny modifying any Apple code. Paragraph 12 line 13.

You said "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.", Apple did state that Psystar did this.

Problem is the public interviews in which the Psystar lawyers even admitted that their client did modify code ...

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

They modified Darwin code, not Apple code ... but Darwin is still owned in large part by Apple.

 

[rickag]

Desperate enough or cheap enough?

Almost no one is arguing for a cheap Apple computer. Virtually everyone arguing for a tower is arguing design, not cost. They want a mid to upper end consumer tower because it is a tower with the flexibility and upgradeability that comes with it.

You mean in the late 1990's when Apple was the "beleaguered" computer company teetering on the edge of bankruptcy? The change of course they set then is exactly the course they are still on now. You personally just don't like where it is going but make no mistake: this course saved them.

This is not the late 1990s.

greed = profit motive. It is a good thing. It's what drove them to innovate and give us OS X, iPods and iPhones, etc. You scoff at the decisions that profit causes while you enjoy the very fruits it produces at the same time. Too funny.

Greed ≠ profit motive. I will say that I don't believe Apple's product matrix is greed motivated, but is more a philosophical one, coming straight from Steve Jobs.

Sure, people are pissed. They want good stuff for cheap prices, and would prefer that Apple give them their stuff cheaper. That's what people want. That's what everyone wants. I'm pissed that big-screen TV's and Harley Davidsons are so expensive too. The very notion of customers being pissed at the lack of a low-cost option cracks me up, because it acknowledges that they fundamentally want what Apple is offering, thus validating their pricing. If Apple's motivations were only to not piss people off over price, they would give things away and all work for free, and get their suppliers to supply for free. Not pissing off customers over price is not their objective. Profit is. Tension over price and value are natural in any transaction, and if they don't exist on both sides of a transaction, then one party or the other is probably leaving something on the table.

See my reply above, for the most part you equate people's desire for a mid to upper end consumer tower with cheap.

 

[dejo]

Virtually everyone arguing for a tower is arguing design, not cost.

So, just to clarify, what's wrong with the design of the Mac Pro?

 

[rickag]

So, just to clarify, what's wrong with the design of the Mac Pro?

It is not a consumer tower. It is a workstation, that is some instances is not as fast as an equivalently clocked desktop computer. It is very large. It is way overkill for the consumer market.

 

[aoresteen]

You said "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.", Apple did state that Psystar did this.

Problem is the public interviews in which the Psystar lawyers even admitted that their client did modify code ...



They modified Darwin code, not Apple code ... but Darwin is still owned in large part by Apple.

My bad. What I was referring to was that Apple did not claim that Pystar had violated Apple's copyrights by modifing Apple code.

What the lawyer said or may not have said outside of court really doesn't matter. What matters is what Pystar has presented to the court. And they stated in their response that they haven't modified Apple code. Perhaps Apple will prove it to the court that Pystsr did. Maybe Apple won't.

Apple claims to be the sole author of OSX. Pystar claims that they are not. Who is right?

If this gets to trial it will be interesting to hear what the jury finds.

 

[Sun Baked]

What the lawyer said or may not have said outside of court really doesn't matter. What matters is what Pystar has presented to the court. And they stated in their response that they haven't modified Apple code. Perhaps Apple will prove it to the court that Pystsr did. Maybe Apple won't.

In civil and criminal trials the public interview can be used against you.

Any statements that wind up in the papers or on forums tend to haunt people, especially when they contradict the court records.

Sort of odd that Springer would be the one putting their foot in their mouth, when it is usually the lawyer doing damage control for a client who usually makes this mistake.

 

[gnasher729]

Was posted, the current court calender requires the JAMs Mediation to take place (completed) by Jan 31st.

The judge has posted the current dates leading to the the trial already.

Discovery due by 6/26/2009. Jury Trial set for 11/9/2009 07:30 AM in Courtroom 9, 19th Floor, San...

Also, the court date for Apple's motion to dismiss Psystar's counterclaims was on the 6th of November 2008 (one week ago), and the judge said that his decision about this should arrive within fourteen days, so we should expect that around November 20th. 2008 or within one week.

I am not too convinced that there will be a jury trial; quite a lot of the case could be decided on facts that are not disputed; the law is very much disputed, but that is for a judge to decide.

 

[BenRoethig]

So, just to clarify, what's wrong with the design of the Mac Pro?

Nothing besides its $2300 and designed for very high end professionals like Movie or record producers. The iMac on the other hand isn't useful for much more than your average $900 Dell.

 

[FrankieTDouglas]

Nothing besides its $2300 and designed for very high end professionals like Movie or record producers. The iMac on the other hand isn't useful for much more than your average $900 Dell.

It's a competent machine. It's just the fact that you are stuck with that reflective monitor. That's the core problem, I think.

 

[gehrbox]

That example was for the folks here who have stated that the copyright holder can put any terms they want into an EULA and the court would uphold it. I selected an extreme example to show them that that is not the case. I do not belive that Apple would do such a thing.

Gotta be careful with examples, somebody might not understand and take it the wrong way.

So, just to clarify, what's wrong with the design of the Mac Pro?

Good point, guess its too powerful or too big

 

[BenRoethig]

It's a competent machine. It's just the fact that you are stuck with that reflective monitor. That's the core problem, I think.

The display is one of the few things I like about it. In fact, if Apple were to offer a stand alone version of this display, I would buy it) Well, that and the aluminum keyboard. The less than speedy laptop CPU, low ram ceiling, mid-range laptop GPU, 8x laptop burner that's not compatible with mini CD/DVDs and a rapidly filling up hard drive that's not user replaceable are the core issues.

Good point, guess its too powerful or too big

Its like using a semi to haul your camper. Xeon workstations were never intended to be used as home computers. Apple's complete lack of a desktop (I consider all in ones a different category) has caused more than a few to use than as such.

 

[dejo]

Virtually everyone arguing for a tower is arguing design, not cost.

Nothing besides its $2300...

Seems someone falls outside that "virtually everyone" here.

 

[BenRoethig]

Seems someone falls outside that "virtually everyone" here.

There's a difference between cost and insanity. Under $1000 is cheap. That;s not the kind of system we want. $1300-1700 is a reasonable starting for a high end desktop and was exactly what Apple gave us. Requiring a $2300 (a nearly $1000 price increase) workstation to get desktop capabilities is so far beyond reason that it can't even see reason in its rear view mirror. Anyone who thinks that not paying the $2300 is somehow cheap seriously needs their head examined. The design is argument is against the iMac which as taken the PowerMac's slot.

 

[rickag]

Seems someone falls outside that "virtually everyone" here.

I apologize, there seems to be a misunderstanding.

Psystar sells desktop computers that can run Mac OS X. They use Core2Duo not Xeon cpus. While they do sell a Server, it currently is not available with Mac OS X as far as I know.

Regardless, the MacPro is a workstation computer not a desktop computer, so when I say cost is not an issue, I refer to desktop computers, as does virtually everyone involved in these discussions. And on top of that, saying "virtually everyone" does provide for the exceptions.

Sorry again for confusing you, hope this clears up any questions you have over the difference between a workstation and desktop computers.

 

[dejo]

I apologize, there seems to be a misunderstanding.

Psystar sells desktop computers that can run Mac OS X. They use Core2Duo not Xeon cpus. While they do sell a Server, it currently is not available with Mac OS X as far as I know.

Regardless, the MacPro is a workstation computer not a desktop computer, so when I say cost is not an issue, I refer to desktop computers, as does virtually everyone involved in these discussions. And on top of that, saying "virtually everyone" does provide for the exceptions.

Sorry again for confusing you, hope this clears up any questions you have over the difference between a workstation and desktop computers.

My understanding is that workstation computers are just a subset of desktop computers (on the high end, of course), so maybe the problem is that there are differing definitions.

So, if Apple were to offer a mid-tower with Core2Duos for, say, $1999, that would be okay, right?

 

[Joe The Dragon]

My understanding is that workstation computers are just a subset of desktop computers (on the high end, of course), so maybe the problem is that there are differing definitions.

So, if Apple were to offer a mid-tower with Core2Duos for, say, $1999, that would be okay, right?

drop $700 - $500 from that price.

 

[BenRoethig]

My understanding is that workstation computers are just a subset of desktop computers (on the high end, of course), so maybe the problem is that there are differing definitions.

That's like saying that Semis are a subset of pickups. Every computer is a more or less Powerful variant of something else. So yes, the workstation is an ultra high performance desktop, usually with more than one CPU, built around server hardware.

So, if Apple were to offer a mid-tower with Core2Duos for, say, $1999, that would be okay, right?

Try $1699.

At $1999, they'd have to include a near 3ghz quad core for that price or the margins would be insane. The xeon CPU, 5400 server/workstation motherboard, and FB-DIMMs jack the price of the single CPU Mac Pro up $700 compared to the same specs using a 2.8ghz quad core 2, high end x48 motherboard, and regular DDR2 DIMMs. You could also save another $150 by using a 750w Power Supply instead of the 1000w unit.