Apple Suggests Possible Conspiracy Behind Psystar

[pdjudd]

This is patently untrue. Apple's main thrust is based on their license agreement.

Only as far as breach of contract is concerned. I seriously doubt that Apple is going to let the courts decide on the legality of their EULA. They are of course going to use the SLA to say that Psystar violated the contract (one that really is non-existent). I think I have been explaining my point. This case doesn't concern the legality of Apple's EULA or SLA. I should have been more clear.

Of course we can agree that the defense that Psystar would make "the EULA is not valid" isn't going to fly - that train was derailed allready.

If you want to be technical about it, there is no "EULA" for OS X. Apple's SLAs are not limited to end users. And the SLA is far from not applying--it's the textual basis of this case. The other claims are ancillary, and all stem from the primary infringing act: asserting rights outside those granted by the owner.

I only use the words EULA because others have done so. It does apply, but I would say that it only goes so far as to say "Psystar broke a license it had no business even accepting in the first place". You are the lawyer of course, and I defer to your analysis simply because you are far better equipped to argue these things in the first place.

 

[matticus008]

At the moment, Psystar claims they are not committing any copyright infringement; so Apple will need discovery to prove it.

They've already stipulated to the reproduction. Apple's copyright registration brings with it a presumption of validity. The prima facie case of copyright infringement is therefore established and no additional Apple discovery is required on that claim. All that remains are Psystar's affirmative defenses--their negative defenses are gone, and they are infringing copyright unless Psystar can prove otherwise. As I said a few weeks ago, though, summary judgment remains premature here because of the extent of additional claims Apple is making. I would expect a partial SJ filing in the near future just to streamline the case and cut out a chunk of Psystar's crap.

I believe typically once one side in a lawsuit has (apparently) exhausted their legal theories, the other side at least files a motion of summary judgement.

Summary Judgment can happen at any time prior to a final judgment, in some cases essentially with the complaint. The exhaustion of arguments hasn't happened yet, but is not a reliable benchmark in any case because of the vagaries of burden shifting and the practical need to achieve SJ before this point. Psystar still has some 30-odd affirmative defenses, at least half of which don't actually make any sense, but they must still be disposed of. This seems contradictory because it is. SJ is a tricky beast. This case is not eligible yet for anything other than partial SJ.

They may not get it, but I think they normally file the motion; if it's denied, it gives them some idea what the judge may be thinking about the facts and law potentially still to be decided.

Standards for summary judgment are more rigorous than what would be required at trial, and so often create false negatives in response to the movant's arguments. Rejections sometimes help pinpoint the open questions, but usually don't, either because the rejection is terse or overcautious or because the open questions aren't unknown.

It can also put the other side on the defensive and require them to make legal arguments to the judge that they might have preferred to reserve for trial.

Not really. Contrary to TV, there are usually few to no surprises in an actual trial, and generally, any argument not introduced in the complaint or answer is off the table (this is why initial pleadings are as broad as possible). The non-movant's burden is slight--all they have to do is keep the door open by suggesting that there is a non-trivial possibility of them making their case. If the question is so close as to require effectively trying the whole thing, the motion will simply be denied as a matter of course, rather than taking the risk.

 

[pdjudd]

Oddly enough, it'd be best if Psystar wins. Why? Because that would basically unmake the DMCA!

Exactly how would a civil court decision invalidate a federal law?

 

[NT1440]

Bill Gates...I KNEW IT!!!!! He has sooo much free time now that he's ruined Windows (yet again) with Vista...

Actually im pretty sure its his LACK of involvment that may have contributed to the vista fiasco. He USED to be pretty involved in development and ideas, but not this go around (he was phasing himself out during xp too but something went right there).

 

[pdjudd]

All that remains are Psystar's affirmative defenses--their negative defenses are gone, and they are infringing copyright unless Psystar can prove otherwise.

This is the best summary of the current case I have yet to see. That is exactly what people are missing here and going about on ridiculous arguments trying to support Psystar. Unless they can prove they are not infringing copyright (which if I understand grorklaw, they kind of admit that Apple implements technical barriers to installing OSX on generic hardware that they have to get around). They have a huge mountain to climb and their gear just got repossessed. All they have is "we are right". That just aint good enough.

I appreciate all of the insight that you have provided thus far. You impress me with your arguments.

 

[domain]

We shall see if that EULA holds up in court. I suspect it will not. Right now, it's undecided.
PSYSTAR suing Apple and Apple suing PSYSTAR are 2 different things.

The later is undecided. People keep forgetting that.

What's next? You can't buy a FORD engine and install it in a Chevy without being arrested, sued, or having the car mod shop shut down? Wouldn't some of that EULA be against the right of fair use?

I think this is the reason Apple will NOT want this stuff tested in court.

EULA, EULA, EULA... blah blah blah.

I'm not sure why this is continually being argued... they need not even bother mentioning this, as I suspect they can win on the DMCA argument alone (it is very simple in nature). Pystar installs OSX, but OSX will not run on standard unmodified x86 hardware without software assisted emulation... therefore they have knowingly circumvented the "protection" mechanism (regardless of how trivial it is) that prevents installation from being allowed. To make things worse for themselves, they then distribute this modification, and for profit to boot... for better or worse this is most likely a violation of the law.

What troubles me is that everyone that is cheering for these idiots (and assuming they somehow miraculously fool the legal system) will only make Apple owner's lives that less friendly... OSX is fairly unencumbered by protections/internet activation requirements/remote "kill switch" type protections, and most of us would rather keep it that way. Push them into a corner however, and we may end up with another nightmare much like the Windows platform in these regards...

And... again IANAL, but actually I think your car analogy may be working against you there... Depending on were you live you might be in violation of the law, as you would have to tamper with the emission control systems on the vehicle to make that work.

 

[macsimcon]

False. All of Apples Licensing agreements are readilly available on their website. Here is one for Leopard(Note PDF attachment) - plain old english on page one. And I found that out in 10 seconds of google search - it was the first link.

Right, but Apple doesn't require you to read it before you enter into the contract for the software, but after you've already purchased it. If you disagree (again, after they already have your money and the contract has been established), then your only recourse is a store credit, and not a refund. Does this seem fair?

If Apple or Microsoft want users to abide by a EULA, the EULA needs to be part of the contract: the purchaser needs to be required to both read AND agree to it in writing before the software is sold. Otherwise the EULA has no legal effect.

 

[gnasher729]

I'm not sure why this is continually being argued... they need not even bother mentioning this, as I suspect they can win on the DMCA argument alone (it is very simple in nature). Pystar installs OSX, but OSX will not run on standard unmodified x86 hardware without software assisted emulation... therefore they have knowingly circumvented the "protection" mechanism (regardless of how trivial it is) that prevents installation from being allowed. To make things worse for themselves, they then distribute this modification, and for profit to boot... for better or worse this is most likely a violation of the law.

No, Apple does need the EULA. Without the EULA, installing MacOS X on a Psystar computer would be legal, and then circumventing protection mechanisms might be legal as well. For example, if you have a 733 MHz G4 Macintosh, then the EULA allows you to install Leopard (it is an Apple-labeled computer), but the installer won't do it. I am quite sure it is legal to get around this restriction in the installer.

The DMCA just makes the situation a lot worse for Psystar _if_ installing MacOS X was illegal in the first place.

Right, but Apple doesn't require you to read it before you enter into the contract for the software, but after you've already purchased it. If you disagree (again, after they already have your money and the contract has been established), then your only recourse is a store credit, and not a refund. Does this seem fair?

If Apple or Microsoft want users to abide by a EULA, the EULA needs to be part of the contract: the purchaser needs to be required to both read AND agree to it in writing before the software is sold. Otherwise the EULA has no legal effect.

I am not quite sure: Do you claim that is what the law says, or what the law _should_ say in your opinion? In the first case, you are wrong. You are especially wrong in this case, since Psystar is a company, and as a company they are absolutely required to find out the license terms before installing the software. If they don't, all the consequences of not complying with the license are their own fault.

 

[jbernie]

If Pystar wins, what would prevent Apple from changing the pricing of OSX? As mentioned in earlier posts, they could charge say, $1000 for a copy of it, but not pass that cost along into their hardware line to prevent other companies (Dell, HP, etc.) from undercutting their pricing. But I think that they could also drop the price to $129 if you buy it at an Apple Store AND get it installed by a Mac Genius so that actual Mac owners, and ONLY Mac owners, could still upgrade their OS relatively inexpensively. I don’t know if Apple could really do this, and I’m sure it would piss off a lot of Mac owners who don’t live close to an Apple Store, but it would prevent other companies from being able to sell OSX on PCs for less money than a Mac, while still allowing Mac owners to upgrade.

You would end up paying $1000 to upgrade to the latest version of OSX because of all the overhead created in needing the Mac Genius crew to install it, let alone just about every single Apple customer would be protesting the stupidity of wasting time taking their systems (MacPro anyone?) to a store to get an upgrade they can do any time they chose and not when Apple decides to upgrade for you. I would venture to say that alot of loyal Apple fans would either switch to Windows or never upgrade again.

 

[Glideslope]

PayStar=IBM

 

[macsimcon]

Hogwash. Part of being on the board of a corporation or a partner at a firm is being on the hook for the company's behavior. Plenty of executives have been sent to jail for corporate criminal acts. That's partly why their salaries are so high; the risk is high. Generally, though, it's more effective to punish the corporation's finances.

It is difficult to pierce the corporate veil of a properly run corporation, and for every one executive "sent to jail" as you put it, there are thousands who are never touched. The whole point of having a corporation is to shield actors from responsibility for their actions, and in practice that includes many criminal acts. How many executives went to prison for Firestone's tires killing people? How many Union Carbide execs went to jail for Bhopal?

There are literally hundreds of software licensing cases on the books.

On point? Cite them. Cite all those cases which have ruled the EULAs in use today constitute binding contracts when the customer hadn't read them prior to purchase.

 

[domain]

No, Apple does need the EULA. Without the EULA, installing MacOS X on a Psystar computer would be legal, and then circumventing protection mechanisms might be legal as well. For example, if you have a 733 MHz G4 Macintosh, then the EULA allows you to install Leopard (it is an Apple-labeled computer), but the installer won't do it. I am quite sure it is legal to get around this restriction in the installer.

The DMCA just makes the situation a lot worse for Psystar _if_ installing MacOS X was illegal in the first place.

I don't think they have to argue this any longer... based on the original dismissal of the "Monopoly" claim against Apple, I believe the following was said:

"Apple asks its customers to purchase Mac OS knowing that it is to be used only with Apple computers," he wrote. "It is certainly entitled to do so."

 

[Bubba Satori]

PayStar=IBM

At least get the name right for that bit of nonsense.

 

[NT1440]

At least get the name right for that bit of nonsense.

something tells me it was supposed to be a pun....

 

[Beta]

Psystar was not trying to defeat the EULA. They were trying to make it mean "this software can be used on any machine."

That would not hurt Microsoft in the slightest.

What would make you think that? Microsoft EULA makes many statements on what machines a given piece of software can be installed on. Limits such as Number of processors, Number of processor cores, as well as current educational status of hardware owner.

 

[BaldiMac]

Originally Posted by BaldiMac
Two things.

1. If some parts of the EULA are tossed in your scenario, nothing would stop Apple from rewriting their EULA. I can't imagine any scenario where the court forces Apple to license its software to Psystar and others.

2. Apple has the most to gain from winning this trial, not a settlement. Winning would likely end any commercial cloning. Losing would likely cause them to rework their EULA slightly. Not a big risk.

The point would be that the kind of provision that is included in the EULA is unenforceable as a matter of law. So it wouldn't be a forced licensing, and rewriting it wouldn't make it more legal.

Seriously, some of you. Go get a law degree, pass the bar, practice intellectual property law for a few years and then call me in the morning.

Why would I need a law degree to discuss something on MacRumors?

Just because a specific provision of the EULA is found unenforceable, does not mean that Psystar will be able to continue to sell OS X under the current license sans the stricken provision. They would still need some sort of license from Apple in order to sell OS X. If the court does not force the licensing, Apple is under no obligation to sell such a license to them regardless of what the current EULA says.

On a separate note, Apple could also rewrite the EULA to limit OS X to Apple hardware through different licensing provisions than what the court found fault with. I am not saying that this would definitely work. It would depend on the courts specific findings against your mythical unenforceable provision.

 

[m1stake]

What right minded venture capital firm would pump money into a start-up that's only arguably legal? There is little chance to make money, and there is a big chance of losing it.

Based on the above, the obvious question is: who would benefit from a ruling in Psystar's favor? Other hardware companies.

Still, it's a conspiracy theory. I wouldn't give it much credit with this "rumor" by itself.

 

[Hugh]

Replace

Agreed. This is better than TV! Conspiracies are fun. I'd love to see Steve Jobs at the end of the keynote, at the "one more thing" going "What the hell, Psystar? Seriously?" showing screenshots of their web store.

Maybe this whole thing will lead to more upgradable Macs. I mean, you can easily swap out the hard drive and RAM on all the laptops, but god forbid if you want to exchange the dead hard drive on your iMac or Mac Mini. I'd love to be able to loosen a few screws to swap out the hard drive and RAM on my Mac Mini. I'd feel bad tossing away (selling on eBay) a perfectly fine computer, just because the hard drive wore off.

Just open the MacMini and replace the dead hard drive. The hard drive is replaceable in the MacMini. Yes opening the MacMini is a little hard to open, but people have done it. In fact there are videos on how to open the case.

Hugh

 

[matticus008]

Right, but Apple doesn't require you to read it before you enter into the contract for the software, but after you've already purchased it.

You're never required to read it. You're responsible for knowing and complying. You can willfully ignore that responsibility, but it's on you. It simply isn't possible for Apple to psychically predict when you're thinking about buying some software and automagically present you with terms. You have to take responsibility and do your research in advance, or at least between purchase and opening the box if you think you're going to want out.

If you disagree (again, after they already have your money and the contract has been established)

If you disagree, no contract or license is established.

If Apple or Microsoft want users to abide by a EULA, the EULA needs to be part of the contract: the purchaser needs to be required to both read AND agree to it in writing before the software is sold.

Purchase of the box and access to the software are two separate transactions. You don't have to agree to anything to buy the box. It's exactly like a prepaid phone card. The store sells you the plastic card. What you're after is what the card gives you access to, though, which is not the store's to give you.

It is difficult to pierce the corporate veil of a properly run corporation, and for every one executive "sent to jail" as you put it, there are thousands who are never touched.

We as a society have deemed that to be most efficient.

On point? Cite them. Cite all those cases which have ruled the EULAs in use today constitute binding contracts when the customer hadn't read them prior to purchase.

Reading isn't a requirement, and EULA is a meaningless term, so the question is irrelevant. It's really very simple. No court has ever rejected a software license on the grounds that it is a software license--the mechanism is fully legal and perfectly valid. No software license has ever been ruled categorically unenforceable. The issue of assent is also firmly resolved: "Reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility." Specht v. Netscape (holding a specific license agreement unenforceable on the grounds that the terms and the acceptance were isolated from each other by a hyperlink). "I Accept" is notice and assent when terms are presented directly to the user and queried. That's to say nothing of ProCD and its progeny, which don't care about direct presentation. Then of course there's Jacobsen v. Katzer, hailed for affirming that open source licenses were just as enforceable as proprietary licenses in copyright infringement litigation. The strong showing of support for the Artistic License (which has no "I agree" button at all, but merely a distribution note) relies on the validity of the licensing mechanism generally. Then you've got Bowers and Magic Software and Graham v. James and all the greatest hits.

 

[m1stake]

Reading isn't a requirement, and EULA is a meaningless term, so the question is irrelevant. It's really very simple. No court has ever rejected a software license on the grounds that it is a software license--the mechanism is fully legal and perfectly valid. No software license has ever been ruled categorically unenforceable.

I was under the impression that the EULA had never been tried in court. Neat.

 

[pdjudd]

Why would I need a law degree to discuss something on MacRumors?

You don't. However having knowledge of the law helps when you are discussing a topic of legal issues. Note that "knowledge of the law" does not equal "law degree"

Look at it this way. Some of the best (and most relevant) comments on this topic are made by people like matticus who happens to be a lawyer. He knows his stuff. Other people like Gnasher and IG Rielly and myself (and others) have actually done research and have attempted to grasp the complicated aspects of this case. I along with these other guys do not posses law degrees (as far as I am aware), but we attempt to rationally argue the facts of the case.

You can say what you want of the matter - moderation is an issue for Arn and his minions and not me, but as a rule of thumb, you open your mouth, you are responsible for what comes out of it. We don't require anything of you formally - however if you try to make inaccurate statements (which I myself am guilty of) don't blame us when we call you on it and ask that you do something.

 

[monke]

I read this yesterday and it just kinda brushed it off, never really thought about it.
I read it again today and all of a sudden thoughts started swirling.

It has to be a conspiracy. There's no way that a start up company like Pystar has the money to pay off a law firm like that. Now the first question would be who's behind it? Well, quite honestly, it could be anyone, but there are some companies who come to mind. Dell, HP, Sony, or anyone related to hardware could easily be funding them. Microsoft, however, I doubt is.

Any hardware manufacturer would love to be able so sell Mac OS X on their machines. For one of them to back Pystar in hopes of winning, the payoff in the end could be huge for them. Think if Dell or HP were able to sell OS X on their machines... they would make loads of money. I don't think Microsoft is really backing Pystar on this issue though, because they wouldn't gain anything out of it. If Apple loses and Mac OS X can be sold on other machines, I don't think Microsoft would be happy and I also don't think they would be making more money because of it.

It just makes sense.

 

[PVguy]

Apple EULA

"They would still need some sort of license from Apple in order to sell OS X."

No you don't.

Apple EULA quote.

"Subject to the restrictions set forth below, you may, however, make a one-time permanent transfer of all of your license rights to the Apple Software (in its original form as provided by Apple) to another party, provided that: (a) the transfer must include all of the Apple Software, including all its component parts (excluding Apple Boot ROM code and firmware), original media, printed materials and this License; (b) you do not retain any copies of the Apple Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Apple
Software reads and agrees to accept the terms and conditions of this License. "

You can too resell the software you purchased, even by apple's license terms.

 

[BaldiMac]

You don't. However having knowledge of the law helps when you are discussing a topic of legal issues. Note that "knowledge of the law" does not equal "law degree"

Look at it this way. Some of the best (and most relevant) comments on this topic are made by people like matticus who happens to be a lawyer. He knows his stuff. Other people like Gnasher and IG Rielly and myself (and others) have actually done research and have attempted to grasp the complicated aspects of this case. I along with these other guys do not posses law degrees (as far as I am aware), but we attempt to rationally argue the facts of the case.

You can say what you want of the matter - moderation is an issue for Arn and his minions and not me, but as a rule of thumb, you open your mouth, you are responsible for what comes out of it. We don't require anything of you formally - however if you try to make inaccurate statements (which I myself am guilty of) don't blame us when we call you on it and ask that you do something.

What inaccurate statement did I make? Please not that I was responding to a comment by stormj where he said to "go get a law degree" before continuing the discussion. I have also done a great deal of reading on this case, what comments of mine would you like to call me on?

 

[n8mac]

Just in case some of you didn't get my earlier post.

Psystar = Systrap = SystemTrap

And now back to your regularly scheduled digital court battle.