Psystar Lawyer Hints at Anti-Trust Defense

[ZiggyPastorius]

I'm "lol'ing" at how upset the fanbois are getting over this. Apple is going to get called on their restrictive policies, and they may be forced to change. See what happens when a company gets big and popular? Now the spotlight will be on the fact that Apple severely restricts users choice in which hardware their software runs on.

The iPhone has been a huge example of Apple saying what customers should have, and then the market showing Apple it was completely wrong. They thought they could sell a phone for $600 and everyone would buy them, wrong. They had to offer a subsidy to get the numbers they were originally hoping for. The jailbreaking they tried numerous times to stop, led to the app store that is a huge success, they should have paid attention from the beginning.

Apple should have done itself a favor and remained in the shadows, with a geeky target audience. Welcome to the big leagues finally.

Normally, I don't respond to trolls at all, but. What is your problem? It has been pointed out numerous times the reasons why this is not just Apple being the "Big Bad Company." Nobody forces Microsoft to release the Xbox OS for their personally-made gaming system. Nobody forces Blackberry to sell their phone's OS to someone they don't want to. Just because Apple has a reputation of having a very dedicated fan-base, or fanboys, does not mean that anyone who supports Apple in anything is a fanboy. Being out of the shadows has allowed Apple to do a lot of great things that they couldn't have done before. The iPhone is a great example. The iPhone would not be $100 with no contract obligation and available on every carrier, whether they were a big company or a small company. It's one thing to say, "hey, I think Apple should open their OS and here's why," but to sit here and personally insult every person who doesn't agree with your big-brother opinion is ridiculous and unnecessary. And before you ask, no, I'm not an Apple "fanboy." I own a Macbook and a few iPods, but I don't think everything Apple does is infallible.

No one is entitled to use OS X, plain and simple.

I think these are the best words ever spoken in relation to this subject on this forum.

 

[Sun Baked]

Yay, a hail mary shot by a company with no regard for a company's Trademarks.

Likely they are tossing this out, and never made the attempt to contact Apple for a license which might have given this defense a shred of credibility.

If they were a slammed Apple reseller trying this, it might be interesting.

---

Heck, if they get a jury trial they might have a shot ... look at OJ.

 

[nagromme]

Normally, I don't respond to trolls at all, but. What is your problem? It has been pointed out numerous times the reasons why this is not just Apple being the "Big Bad Company." Nobody forces Microsoft to release the Xbox OS for their personally-made gaming system. Nobody forces Blackberry to sell their phone's OS to someone they don't want to. Just because Apple has a reputation of having a very dedicated fan-base, or fanboys, does not mean that anyone who supports Apple in anything is a fanboy. Being out of the shadows has allowed Apple to do a lot of great things that they couldn't have done before. The iPhone is a great example. The iPhone would not be $100 with no contract obligation and available on every carrier, whether they were a big company or a small company. It's one thing to say, "hey, I think Apple should open their OS and here's why," but to sit here and personally insult every person who doesn't agree with your big-brother opinion is ridiculous and unnecessary. And before you ask, no, I'm not an Apple "fanboy." I own a Macbook and a few iPods, but I don't think everything Apple does is infallible.

I think you're failing to understand a couple things Mainly:

1. If a lot of people really like a company or product, then that proves that the company or product is bad. (Corollary: Windows must be great because its users dislike it.)

2. Phones never drop in price over time. No electronics products ever do. If the iPhone dropped in price, that proves the market hated the iPhone before the drop. Obviously Apple never expected that prices would drop, new features and models would come out, or new countries would start selling iPhones. Those are all desperate last-ditch efforts to "cheat" and sell iPhones to a world that doesn't want them.

3. Apple never planned to have developer tools. They magically whipped them up overnight in response to the vast and powerful armies of movers and shakers known as iPhone jailbreakers. When Apple said they were taking their time to do development tools carefully, it was all lies. They never wanted an app store.

 

[Mal]

I'm really hoping that Apple refuses to offer or consider a settlement. I want this to go to court, and I want to see Apple beat the snot out of Psystar's lawyers. They don't have a leg to stand on, and I will thoroughly enjoy watching them get cut down to size.

jW

 

[blashphemy]

I'm rooting for Psystar on this one - screw legal precedent, it would definitely be nice if the legal system's Christmas present for us this holiday was to put the best OS on our gaming systems and Tablet PC's.

That said, on the outside chance that Psystar does win, just watch as Apple makes 2 licenses of OS X - an upgrade version that costs $129, and a full version that costs $499+....

 

[nagromme]

That said, on the outside chance that Psystar does win, just watch as Apple makes 2 licenses of OS X - an upgrade version that costs $129, and a full version that costs $499+....

Makes sense. Every Mac has always shippedWITH Mac OS, so every retail copy has always been an upgrade, be it from 8 to 9, 9 to X, or whatever.

Thus explaining why OS X on the shelf is so much cheaper than a full license for Vista Ultimate (the Windows version closest to OS X).

 

[ZiggyPastorius]

I think you're failing to understand a couple things Mainly:

1. If a lot of people really like a company or product, then that proves that the company or product is bad. (Corollary: Windows must be great because its users dislike it.)

2. Phones never drop in price over time. No electronics products ever do. If the iPhone dropped in price, that proves the market hated the iPhone before the drop. Obviously Apple never expected that prices would drop, new features and models would come out, or new countries would start selling iPhones. Those are all desperate last-ditch efforts to "cheat" and sell iPhones to a world that doesn't want them.

3. Apple never planned to have developer tools. They magically whipped them up overnight in response to the vast and powerful armies of movers and shakers known as iPhone jailbreakers. When Apple said they were taking their time to do development tools carefully, it was all lies. They never wanted an app store.

Oh, snap. How could I have forgotten all those well-known facts

Guess the OQP was right...I'm just a fanboy. Damn me for buying the products I want, rather than being sure to avoid all possibility of being labelled a fanboy because I bought a product that someone else in my shoes wouldn't buy!

*commits Samurai suicide of lost honour*



P.S. Yes, I know that was a run-on sentence. I wanted it to be that way.

 

[dicklacara]

There is just one tiny, tiny difference here. IBM was by far the domineering company in IT. If you tried to sell punched cards and they couldn't be used on IBM machines, that was 90 percent of the market gone. On the other hand, if Psystar cannot sell computers with MacOS X, they are free to sell computers with Windows, Linux, they could probably buy BeOS or AmigaOS. If one manufacturer with a tiny market share (some people will tell you it is less than two percent) doesn't want them to use their OS, that has nothing to do with antitrust.

Market share. alone, does not equate to a violation of monopoly or anti-trust laws. IBM, after the consent decree, maintained a market share in the high 70% range and was not bothered by Justice.

On the other hand, a merger between Von's and Shopping Bag supermarkets was prevented by Justice, as it tended towards a monopoly-- with a combined market share of about 10%.

The key is how a company conducts itself (and, some say, pays for lobbyists).

 

[SteveG4Cube]

That said, on the outside chance that Psystar does win, just watch as Apple makes 2 licenses of OS X - an upgrade version that costs $129, and a full version that costs $499+....

Not to mention, be prepared for serial numbered copies - or even download-only releases that'll only work once the system is verified. Also, think about the other side of the anti-competitive tying-in arguement - one could argue that you should be able to buy a Mac computer without having to purchase OSX along with it. Imagine the irony if they lost and Mac sales went UP because of people buying them just to install Windows due to a new "no OS pre-installed" discount.

 

[TheBobcat]

Apple does not prevent anyone from selling operating systems.
Apple does not prevent anyone from selling computers.

So what does Apple have a monopoly on? Who is Apple preventing from competing in the OS and computer market? They have a monopoly on...the Mac?

You cannot have an antitrust-style monopoly on your own product. If you can, then Ford would have one on the Mustang, GM on the Corvette. McDonalds would have a monopoly on the Big Mac.

Its not Apple's problem that it doesn't sell Macs in every market segment. They don't have to. Tough luck if you don't like it, go buy a PC. No one has this divine right to use OS X on whatever system they please. Its Apple's product, and if they don't sell a version of it that suits your needs, it doesn't justify a company hacking the software it and reselling it as their own product.

 

[bevo5k]

Please read antitrust case law before you post

As of the Kodak v. Image Technical Services Inc. case, the Supreme Court no longer considers market share to be relevant when deciding matters related to antitrust.

Instead, the Supreme Court focuses on how information is used to create a monopoly, which is a Section II violation. Apple's end user license agreement (hereafter EULA) prevents the owner of the Macintosh OS from installing the Macintosh OS on any computer other than a Apple made computer.

Now, at first blush, the EULA appears to create a tying arrangement. If the Supreme Court relies on precedence (Jefferson Parish Hospital), then Apple is in a per se violation because the Apple computer and the Macintosh OS may represent two distinct products and Apple is requiring the use of Macintosh OS only on a Apple computer. Tying arrangements represents a Section I violation of the Sherman Act.

However, the D.C. Court of Appeals ignored the Supreme Court on this point. In the Microsoft case, Court of Appeals overturned the lower court's ruling that Microsoft had a tying arrangement between Windows OS and Internet Explorer. By the D.C. Court of Appeals' standard, Apple bundles (lawful) its computer and Macintosh OS, not tie (unlawful).

To prevail in a tying suit, Psystar's lawyers likely have to take the case to the Supreme Court. I am not sure Psystar has the resource for such a legal fight.

A Sherman II (attempt to monopolize) violation appears as a possibly easier alternative given the Kodak decision. Apple's EULA causes harm in the marketplace.

First, it clearly harms Psystar because it prevents them from selling an alternative to Apple-made hardware. Second, it clearly harms the consumer because it prevents the consumer from installing a legally purchased Macintosh OS on a Dell, Sony or some other Intel-based computer.

Microsoft's Windows OS does not contain an offending line in its EULA. Hence, you can install Windows OS on your Apple computer or a home-built Intel-based computer. This is not the case with Apple.

Thus, Apple potentially has a serious antitrust problem on its hand. Remember, (under the Clayton Act?), antitrust damages are trebled.

I find it interesting that Apple is suing Psystar for a copyright infringement. Apple sued Microsoft using a similar approach for Microsoft's inclusion of the graphical user interface (GUI) in the Windows OS.

How did that case work out for the geniuses from Cupertino?

 

[alphaod]

Apple invented OS X; unless Psystar makes their own OS they should have no say in the matter.

 

[bevo5k]

Not a refusal to deal case

Apple does not prevent anyone from selling operating systems.
Apple does not prevent anyone from selling computers.

You are talking about a refusal to deal. It is doubtful that Psystar would center an antitrust case around a refusal to deal. More than likely Psystar's case would revolve around Apple's action of preventing consumers from installing Mac OS on something other than an Apple-made computer.

 

[bevo5k]

They do have a say

Apple invented OS X; unless Psystar makes their own OS they should have no say in the matter.

Apple did not invent OS X because OS X is really Unix with GUI attached. Unix existed independent of Apple for a long time prior to OS X's introduction.

Psystar's possible antitrust case will revolve around either a tying arrangement (Sherman I violation) or an attempt to monopolize (Sherman II violation).

These arguments have little to do with who invented what. Apple fought that battle with Microsoft. And Apple lost. Badly.

 

[Sun Baked]

I find it interesting that Apple is suing Psystar for a copyright infringement. Apple sued Microsoft using a similar approach for Microsoft's inclusion of the graphical user interface (GUI) in the Windows OS.

How did that case work out for the geniuses from Cupertino?

Settled around the time of the MS bailout, so the public deal made it look like MS still had faith in Apple with a $100-150 million deal while the under the table deal settled the lawsuits -- in Apple's favor sort of.

 

[bevo5k]

Not to mention, be prepared for serial numbered copies - or even download-only releases that'll only work once the system is verified. Also, think about the other side of the anti-competitive tying-in arguement - one could argue that you should be able to buy a Mac computer without having to purchase OSX along with it. Imagine the irony if they lost and Mac sales went UP because of people buying them just to install Windows due to a new "no OS pre-installed" discount.

If Apple goes to a system-verified approach, they will be more than likely face a Sherman I violation. Supreme Court precedence is clear on this issue.

If Apple decides not to do that, then I am not sure a tying arrangement currently exists. Case law appears in conflict on the issue.

 

[bevo5k]

Yay, a hail mary shot by a company with no regard for a company's Trademarks.

Apple did not fare well when they accused Microsoft of violating Apple's copyright on the graphical user interface.

BTW, trademark and copyright are not the same thing.

 

[IJ Reilly]

Since you didn't put in the effort to justify your argument, I'll make the assumption that you're probably thinking of something like this apology, the evidence in which contradicts the conclusion. To paraphrase: "it totally didn't copy Xerox because we had 1 mouse button and they had 3, we had a menu bar while they had pop-up menus, and we invented resource forks and stuff." In the context of the revolution that was the mouse-driven GUI, such differences are very minor. If A invented a car, then B having seen A's car is still inspired by A even if his car happens to have only 3 wheels.

Did you deliberately neglect to quote this? It was, after all, the first paragraph of the article:

For more than a decade now, I've listened to the debate about where the Macintosh user interface came from. Most people assume it came directly from Xerox, after Steve Jobs went to visit Xerox PARC (Palo Alto Research Center). This "fact" is reported over and over, by people who don't know better (and also by people who should!). Unfortunately, it just isn't true - there are some similarities between the Apple interface and the various interfaces on Xerox systems, but the differences are substantial.

Would have made been clearer than paraphrasing the meaning in your own words.

I've read a great deal about this episode over the years, including this and other writings of the principals involved. The most interesting were written by the late Jef Raskin. It turns out that none of it backs up the assertion that "Apple copied Xerox," including the article you've cited. It also turns out that Xerox didn't really "invent" the GUI or the mouse, either. They had implemented some of the ideas, which had been around for quite awhile, which is why Raskin urged Jobs to visit Xerox so he'd be sold on the concept, which Raskin was already working on at Apple. It worked too well, as those who know the history will agree, at least for Raskin's sake.

The whole topic of my post was how Apple has advanced by building on the ideas and technology of others (a good thing), adding its own flavo(u)r to the mix, and sometimes without due thanks and/or payment to those it was inspired by (not so cool). Now Psystar's doing the same thing, buying a copy of OS X and fully complying with all terms provided to it at the time of sale (i.e. none), and people are whining.

If you feel like selling something under restrictive terms, please feel free to request that every purchaser sign a contract before exchange of consideration. Good luck with that. Apple chose to believe that additional terms can be added arbitrarily after a sale, like my term that by reading this message this far you agree to send me $0.20 in Australian cents. I believe we are morally equally entitled to compliance.

But again, the relevance please?

And Psystar is just doing "the same thing," really? How in the world do you figure that they're adding anything? They are simply building generic PC hardware and using an existing hack to trade on Apple's copyrights and patents. Apple doesn't need to explicitly prevent someone from doing this, they simply need to say no, you can't -- because they and not Psystar owns the property.

 

[Sun Baked]

Apple did not fare well when they accused Microsoft of violating Apple's copyright on the graphical user interface.

BTW, trademark and copyright are not the same thing.

They are after them for both copyright & trademark violations, unfair competition, etc. in the 10 claims.

 

[IJ Reilly]

Apple did not fare well when they accused Microsoft of violating Apple's copyright on the graphical user interface.

Mainly because Apple had already licensed Mac GUI elements to Microsoft, the "look and feel" lawsuit boiled down to what Apple had licensed and for how long. The courts never did rule on whether Apple's "look and feel" argument had any merit.

 

[IJ Reilly]

Easily the best post in this thread. I encourage more of you to take an econ course or two and maybe also do some background reading on competition and antitrust.

Sorry, but I don't see what this post or the post to which you are responding added to the discussion.

And to what conclusion would we come, if we had this knowledge of which you speak? And what knowledge would this be, precisely? Even generally? Could you give us just a teeny-weeny hint, maybe?

 

[hachaboob]

No one is entitled to use OS X, plain and simple.

You are mistaken. If you have legally purchased the software separately then you are entitled to use it every which way you like with a few restrictions of course.

1. Apple doesn't have to support it if it is running on a system that doesn't meet the minimum system requirements. In the case of Mac OS X Leopard that is a Mac with Intel or PPC architecture.

2. Because of copyright laws etc you can not modify the contents of the DVD.

In respect to 2, I do not see a problem getting the OS to run on an officially unsupported system provided it doesn't snap copyright laws and cause our society as we know it to crumble.

My understanding of what PyStar is doing is selling a computer with Leopard pre-installed and providing a Restore Disc. Redistributing copyrighted material (on different media) is obviously illegal in this case so pre-installation and the Restore Disc is illegal and you would have to investigate whether the base OS was modified to get it to run on their computers too.

 

[The Monkey]

As of the Kodak v. Image Technical Services Inc. case, the Supreme Court no longer considers market share to be relevant when deciding matters related to antitrust.

How on earth do you get that from Kodak? That's simply incorrect.

 

[JNB]

Sorry, but I don't see what this post or the post to which you are responding added to the discussion.

And to what conclusion would we come, if we had this knowledge of which you speak? And what knowledge would this be, precisely? Even generally? Could you give us just a teeny-weeny hint, maybe?

It's called "satiric commentary," referring to the large number of the other comments up to that point which added nothing useful to the Frisbee-tossing. As to what it adds, certainly no less than the post I'm quoting.

To your second not-so-serious point, the others will have to sharpen their minds on their own, as they have already ignored every salient point provided. I know you're a smart enough guy and already have the answers.

 

[IJ Reilly]

It's called "satiric commentary," referring to the large number of the other comments up to that point which added nothing useful to the Frisbee-tossing. As to what it adds, certainly no less than the post I'm quoting.

To your second not-so-serious point, the others will have to sharpen their minds on their own, as they have already ignored every salient point provided. I know you're a smart enough guy and already have the answers.

Yeah, all of them nearly. Don't tell anybody though.