Psystar Lawyer Hints at Anti-Trust Defense

[Lord Blackadder]

To conclude, Apple did great building without full chain of disclosure and compensation on Xerox (and AT&T - Unix, and IBM - PC). Now let Psystar try to build on Apple, and succeed or fail without hindrance from a paranoid giant.

None of todays commercial OSs are unique inventions - all of them are evolved versions of an OS developed earlier by a different entity...but Psystar is not developing an OS. They aren't doing any development work on their own to create a new product. Instead they are re-selling Apples OS X, and supplying a few hacks (most of which were also developed by others) to run it on PC boxes they've built.

You say that Apple used other companies' IP without permission, but they did substantially alter it to create their own Mac OS. Psystar has not, they are simply opportunists with no intention of developing any products.

 

[ohforfckssake!]

About a third through Apple's brief. Terribly written.

"This has nothing to do with antitrust or EULA."

You'll find that it has quite a bit to do with the EULA. Along with the copyright and trademark claims, Apple also alleges breach of contract -- meaning that the EULA is being litigated.

 

[bevo5k]

Copyright or antitrust

This will be an interesting case because it will challenge EULAs and challenge the software ownership question. If I buy OSX and stick it on some random piece of hardware am I now open to a lawsuit from Apple? But wait, I legally purchased OSX. I also legally purchased my hardware. When Apple restricts what I can do with something I purchased legally, is that legal? This is where the shades of grey come in.

I agree with your summary of the situation facing Apple. I have no idea on a copyright matter because I know little about copyright case law. Apple's lawyers believe they can prevail in such a suit. Sure... Will someone from Psystar argue the fair use?

As to an antitrust, it is a different matter. Apple may be in a tough slog because they may face several issues related to the Sherman Act including tying arrangement, attempt to monopolize, and restraint of trade. Again, case law on these matters especially when it comes to technology markets is mixed.

The question of OS ownership is interesting. When you buy a Mac OS upgrade, are you leasing the product or buying it?

Oh, and of course Apple won't support any hackintosh and no one should expect them to.

Similarly, I expect no service from Microsoft when I run my legally purchased version of Windows XP on my MacBook.

Virtualization allows the user to operate Windows OS and Linux OS among other operating software on almost any computer including an Apple computer. However, no virtualization software company provides a similar product for the Macintosh OS because of Apple's EULA. Does this represent a possible restraint of trade action?

 

[DakotaGuy]

I'm rooting for Psystar on this one.

Me too. It's time that the consumer who wants a Mac has another choice. If Apple is so perfect and great as the fanboys claim then they should have nothing to worry about. They should welcome Psystar with open arms and help them sell a Mac clone to build the base. Also, not every Apple product is perfect. Lately Apple has been known to throw out some pretty poorly built products with quality control issues. Some competition in Mac hardware would be good.

 

[jakeOSX]

Similarly, I expect no service from Microsoft when I run my legally purchased version of Windows XP on my MacBook.

actually here is where the two companies differ. I WOULD expect MS Support for a legal copy of XP on my MacBook.

 

[Lord Blackadder]

About a third through Apple's brief. Terribly written.

I can barely understand the legalese, but if what you say is true I'm shocked, since they had months to write it and access to the best legal help...

 

[gnasher729]

As to an antitrust, it is a different matter. Apple may be in a tough slog because they may face several issues related to the Sherman Act including tying arrangement, attempt to monopolize, and restraint of trade. Again, case law on these matters especially when it comes to technology markets is mixed.

No, the antitrust matter is of no relevance whatsoever. If Psystar wanted to sell computers with MacOS X, they should have first contacted Apple for a license (which I doubt they did). If Apple then refused to give them a license (which I am sure they would have), Psystar could then have sued Apple on whatever grounds to force them to license MacOS X. If Apple then lost that court case, Psystar could then start selling computers with MacOS X even against Apple's wishes. But that hasn't happened. Psystar _first_ sold their computers with MacOS X. They had no right to do so. The case will be lost.

 

[pika2000]

Me too. It's time that the consumer who wants a Mac has another choice. If Apple is so perfect and great as the fanboys claim then they should have nothing to worry about. They should welcome Psystar with open arms and help them sell a Mac clone to build the base. Also, not every Apple product is perfect. Lately Apple has been known to throw out some pretty poorly built products with quality control issues. Some competition in Mac hardware would be good.

You know, you can already install OSX on non-Apple x86 hardware. Psystar is simply making money out of somebody else's work that is available for free. Instead of supporting Psystar, you should donate money to the people that develop the hackintosh/OSx86. Without them, Psystar couldn't even do what they're doing.

Looking into this, it can open up a can of worms. Razor blade manufactures are locking customers into buying their own blades. Printer manufactures are locking customers into buying their own specific ink cartridges. Same argument can be made for the legality of emulators, eg. playing playstation games on non-Sony hardware (PC).

 

[IJ Reilly]

The article is doing what Apple's always been great at doing - highlighting minor tweaks as revolutionary changes. Xerox had proto-windows, icons, menus, pointer, scrollbars, file manager, mouse selection, etc. All of these features require way more original thought than Apple's move to menu bars, one button mice, the irritation that is resource forks, etc. Apple did do dragging right, and much credit to them for it (though I still wish the Save As motion were to drag an icon from an app to a Finder window, a la RISC OS, but I digress).

I had to notice you completely ignored my response to your post, which dealt with this issue.

Lol, what? The work at PARC was based on PARC snatching up Douglas Engelbart et al. from Stanford's ARC as Stanford, DARPA, etc. got bored with him.

Meanwhile, Raskin's thesis was about manipulation of graphics primitives (so "QuickDraw"'s etymology is more specific and more appropriate than your hand-waving suggests!). While in autobiographies he likes to point with hindsight how important it was that he emphasised interactivity and hinted at on-screen menus, we are nowhere near what Xerox produced. His thesis was vaguely prescient, as any man can be by being sufficiently vague, but lacked concreteness to be influential. Indeed, Raskin had a hate-love relationship with the mouse, a topic for another mindless excursion .

And this isn't how it works much of the time? If the question is whether both Xerox and Apple built on previous work, both academic and commercial (quasi-commercial in the case of Xerox), then the answer is is obviously "yes." But if the accusation is that Apple "stole" their idea from Xerox, the answer is emphatically "no."

Ah yes, Raskin stopped visiting PARC to prevent "conflicts of interest", autobiography suggests, a year before he recommended that SJ go right back there to have a peek. Anyway, that people went from PARC to Apple only bolsters the argument that SJ was interested in folding knowledge from PARC into Apple's GUI - it was not mere coincidence, surely?

Really?

A number of PARC-ers ended up at Microsoft, too. And this isn't how it works much of the time? The primary cause for this transfer of intellect was the brain-dead top management at Xerox, which could see the wisdom of funding basic research but not in building products based on it. The ALTO proejct had been around for at least six years when Apple had their look in 1979. Xerox was going nowhere with it. The Lisa and Mac projects were already a year old. If you worked for Xerox PARC in 1979, where would you have gone?

 

[Eddyisgreat]

Me too. It's time that the consumer who wants a Mac has another choice. If Apple is so perfect and great as the fanboys claim then they should have nothing to worry about. They should welcome Psystar with open arms and help them sell a Mac clone to build the base. Also, not every Apple product is perfect. Lately Apple has been known to throw out some pretty poorly built products with quality control issues. Some competition in Mac hardware would be good.

I don't understand how you want something but want another choice.

It's a Mac.

If you get something else, its not a Mac. Done.

So what do you want? A PC? A PC That acts like a Mac? Or a Mac? If Apple's offerings aren't good enough for your intended purpose, then the Macintosh Platform is not designed for you.

If you want a Cadillac Escalade, are you going to clammor because the price is too high for you, and you want something that the SRX Crossover (the next model down) doesn't offer? Let me know if General Motors calls you for the schematics of that Escalade Jr. that they probably don't want to build.

You are referring to a base that Apple DOES NOT want to cater to. The reasons are unknown. Perhaps brand exclusiveness, perhaps end-to-end experience, perhaps price shaping, but who cares , because at the end of the day its their brand. They created it.

I don't understand why some of you think Apple is in an arena all by itself. Let me clue you in.

They Aren't.

They have exclusive rights on THEIR OS/IP/BRAND, but they are competiting with other manufacturers. Macbook Pros compete with Lenovo's,HP's, and Dell's offerings, just like the Mac Pro competes with each brands respective workstation class offerings. If Apple's hardware really sucked as much as is claimed here, their OS would die off along with the brand, because no one would want to "upgrade" their copy to the latest offering, and due to the EULA, No one would be allowed to put it on their own machines in the first place. Further, unless you actually participate in Media Arts, don't comment about it. Most of Adobe's offerings are on Both Platforms. Each platform has respectable 3d packages on each side. Each platform has their strengths and weaknesses, but ultimately no one platform has absolutely no counter alternative on the competing OS. Now, thats not to say that the Developer of the software may have put much , MUCH more time into tayloring a certian application for a certian OS (Ahem, Entourage and Outlook come to mind), but thats just a part of life. If you want certain privileges, you must be part of certain circles.

And please, stop comparing this to Windows XP. One of the main differences between Windows and Mac OS is that Microsoft's business model is to license to system builders, where as Apple is the System Builder. Microsoft cannot take Apple to court because nothing wrong has been done.

 

[ohforfckssake!]

I can barely understand the legalese, but if what you say is true I'm shocked, since they had months to write it and access to the best legal help...

Lols, I'm exaggerating a little. But badly written briefs are extremely common, and as this is merely the first shot across the bow, it's really nothing exceptional in that regard.

 

[LEStudios]

I'm rooting for Psystar on this one.

Yeah I'm rooting for them to go to Hell and leave Apple alone to keep making innovative products. I mean letting Psystar make a computer is the same as a bootleg DVD of movie still in theaters. So to Hell with their bootleg asses!

 

[IJ Reilly]

Finally someone who gets it. This will be an interesting case because it will challenge EULAs and challenge the software ownership question. If I buy OSX and stick it on some random piece of hardware am I now open to a lawsuit from Apple? But wait, I legally purchased OSX. I also legally purchased my hardware. When Apple restricts what I can do with something I purchased legally, is that legal? This is where the shades of grey come in.

You will have violated the EULA, but the chances of you being sued by Apple are tiny, if only because Apple would have no way to know if this was happening in the privacy of your own home. But once you start doing this commercially, not only are you getting yourself noticed but (and here comes the important part), you will be trading on Apple's copyrights and trademarks. This is going to get you in hot water for certain.

 

[IJ Reilly]

As to an antitrust, it is a different matter. Apple may be in a tough slog because they may face several issues related to the Sherman Act including tying arrangement, attempt to monopolize, and restraint of trade. Again, case law on these matters especially when it comes to technology markets is mixed.

I doubt this very, very much. Any court which suggested that Apple lacked the exclusive right to make and sell Macintosh computers would be coming to a novel judgement, to put it very lightly. By reference this would mean that no company had an exclusive right to make and sell their own products, that to do so would constitute "restraint of trade."

For anyone who is rooting for Psystar, the caution is "be careful what you wish for."

 

[Lord Blackadder]

By reference this would mean that no company had an exclusive right to make and sell their own products, that to do so would constitute "restraint of trade."

For anyone who is rooting for Psystar, the caution is "be careful what you wish for."

Well said.

I think the consequences of Psystar winning this suit go far beyond people getting the cheap OS X midtowers they've always wanted, to the detriment of the consumer I'm sure.

 

[El Magnificante]

Well, you can't do *that* with Windows or Linux either.

I don't have to choose which hardware to buy to run XP.

Take a moment to think about it before typing more nonsense.

 

[robbyx]

Competition is a good thing.
If Psystar makes a Mac Clone better than an Apple Branded Mac, then it would just push Apple to do what they do best.... innovate and excel.

Do you really think that Apple needs help innovating? It seems like the rest of the industry is always playing catch up, so I doubt some rinky dink clone maker like Psystar is going to push Apple to do anything. From what I've seen on the Psystar clones, they can't reliably update the OS, so I think the "innovate" argument falls flat.

What I don't understand is why Psystar feels entitled to sell a product they didn't develop? Microsoft created/pushed the OS licensing model as part of their business model That doesn't mean that EVERYONE has to go along. Apple has always championed the vertically integrated "it just works" approach, and for good reason. It might not have made them #1 in sales, but their products enjoy a level of stability and integration not seen anywhere else. And that's worth every penny to me (and millions of others).

Psystar is a lame, unimaginative opportunist. They can't develop anything decent on their own, so they pilfer. Do we really want the Mac world full of such hucksters? I don't think so!!! If Psystar wins, which I sincerely doubt, Apple will surely refuse to support Psystar customers and this will only create more stress and headaches for Psystar. Every OS release, Apple breaks something and Psystar scrambles while their customers begin to wonder if saving a few hundred $$$ on their cheap-o crap Psystar box was worth it. Either way, Psystar loses and only an idiot would buy one of their boxes.

Finally, if Psystar wins, does this mean that Tivo must sell their OS to anyone? What about Sony? Should anyone be able to build and sell a Playstation clone? The OS and the hardware are INTEGRATED and should not be viewed as separate entities just because that's how Microsoft does it.

It's really pathetic to see companies resort to the courts instead of innovating, but clearly Psystar has no ability to innovate anything at all.

 

[robbyx]

Me too. It's time that the consumer who wants a Mac has another choice. If Apple is so perfect and great as the fanboys claim then they should have nothing to worry about. They should welcome Psystar with open arms and help them sell a Mac clone to build the base. Also, not every Apple product is perfect. Lately Apple has been known to throw out some pretty poorly built products with quality control issues. Some competition in Mac hardware would be good.

Welcome Psystar with open arms? Are you that, um...nevermind. PC fans really irritate the crap out of me, to be honest. Not because they love Windows, but because they love cheap crap boxes that require untold number of hours dealing with tech support, etc. And Linux nerds are even worse!!!

I frankly don't see the appeal of spending my free time tinkering with my computer. Microsoft has empowered all of these dorks out there to feel good about themselves just because they can finally get some crappy PC to work right. And Linux makes the dorks feel extra special. But how much time did it all take? How much frustration? What else could one have been doing...assuming one had a life in the first place?

Psystar didn't write the MacOS. Psystar didn't work its *ss off for the past three decades building a brand. So why should Psystar have the "right" to sell Apple's products? What if Apple changes something and it breaks every Psystar clone? Whose fault is that? And what about competition in the Playstation hardware? Or the Wii hardware? Or the Tivo hardware? Or ANY other manufacturer whose software is directly tied to its own hardware? Do we really want to encourage a system where hard work is not rewarded, where one is forced to "license" one's intellectual property to anyone who wants it? Microsoft has planted the idea in our collective heads that software and hardware should be viewed separately. While that may work for them, it isn't the model to which others, like Apple (and Sony and Nintendo, etc), adhere. And no one should be FORCED to follow the model simply because a bunch of d-bags don't want to pay for a Mac.

If you want to buy a Mac, BUY A MAC! But stop whining already. It's so lame.

 

[IJ Reilly]

Well said.

I think the consequences of Psystar winning this suit go far beyond people getting the cheap OS X midtowers they've always wanted, to the detriment of the consumer I'm sure.

The good news is that I'd rate their chances of winning in a court at about 0.001%. They might be able to get Apple to relent on the issue of recalling all the computers they've sold to date, though. I suspect Apple made this demand because to do otherwise could be taken as a less than vigorous defense of their copyrights and trademarks. For that purpose, they probably have to insist that every computer Psystar has sold constitutes a separate violation.

 

[mjtomlin]

Again, the analogy does not fit. Let's say you bought a bag of microwave popcorn. The manufacturer threatens you with a lawsuit if you use a stove, a skillet, and a lid to pop the microwave popcorn instead of a microwave oven.

Uh no, the analogy is, I take all the popcorn out of the bag, tweak the recipe, and then resell it as the original brand along with a steamer. So I've taken a product, changed it to work the way I want, and now going to resell it with steamers and make a profit from it. Your analogy is referring to an INDIVIDUAL doing something, completely different than a company trying to make a profit from that same act.

In my original analogy I was trying to point out that we as individual consumers absolutely are not entitled to force manufacturers to make changes to their product to best suit are needs that goes beyond what the product was advertised/claimed to do.

 

[Muffinking]

I would like to see Apple make their own Macs cheaper by shipping computers pre-loaded with Leopard.

I hope they win their case so better choices are available to meet my needs, because I am too poor to afford a mac and therefore it is my right to demand Apple make inferior products.

Fixed.

 

[robbyx]

To conclude, Apple did great building without full chain of disclosure and compensation on Xerox (and AT&T - Unix, and IBM - PC). Now let Psystar try to build on Apple, and succeed or fail without hindrance from a paranoid giant.

Lets dig back into the past 30 or 40 years to justify Psystar's argument. Are you serious???

Whatever Apple did or did not do, etc. back in the day is irrelevant in this case. Psystar isn't creating an OS. They are trying to force Apple to allow them to sell a product THEY DID NOT DEVELOP. Apple developed the MacOS and NeXT developed the OS we're all using today. Psystar did NOTHING.

So, if Psystar wants to build on Apple, get started. Write an OS and see if ANYONE buys it. Your argument doesn't even make sense.

 

[Lord Blackadder]

For that purpose, they probably have to insist that every computer Psystar has sold constitutes a separate violation.

...And the total number of systems sold has got to be pretty low, I would think.

I agree that the chances of the lawsuit going Psystar's way are remote at best.

 

[mdriftmeyer]

I think there's a pretty solid difference here, however. Sony and M$ don't sell their OS software for XB360 or PS3 by itself. You must purchase an XBox or PlayStation to get the software. Any updates are send, at no cost, to the box.

With OSX, I go to the Apple Store, or Amazon.com, or whoever, and purchase a copy for myself. I take it home, and install it. It's my disk, I purchased the software install rights.

I think what it's really going to come down to in an antitrust case is "Can Apple tell me what type of hardware I must install this software on after I purchase it?

I don't want to see Mac clones out there, as what others have mentioned is likely, and I don't want to see cheap reproductions or knock offs, but the full Apple experience.

That's an erroneous analogy. Apple sells the retail copy to run on all certified Apple Hardware, whereas the copy that comes with Apple Hardware is included specifically just for your make of product. Your argument doesn't hold water.

 

[mdriftmeyer]

99.99% of the arguments hoping Psystar win are from Linux hacks; and being someone who uses both Linux and OS X on a daily basis I find them living in a fantasy world where Thieves are given more rights than Owners.

It's a waste of money but seeing as how these attorneys are using the publicity to challenge Anti-Trust Sherman Law it's free advertising on their behalf.

Section 2 of the Sherman Anti-Trust Act:

Monopoly

Section 2 of the act forbade monopoly. In section 2 cases, the court has, again on its own initiative, drawn a distinction between coercive and innocent monopoly. The act is not meant to punish businesses that come to dominate their market passively or on their own merit, only those that intentionally dominate the market through misconduct, which generally consists of conspiratorial conduct of the kind forbidden by section 1 of the Sherman Act, or Section 3 of the Clayton Act.

IBM and SUN did sell Operating Systems unique to their hardware or through a license to third parties that built hardware specific to their design requirements, before selling it. They weren't obligated to do so and hoped that doing so would have greatly increased their marketshares. It didn't and still doesn't. SUN is barely treading water and IBM holds a virtual monopoly on Mainframe systems in which they offset losses from other business divisions to keep growing.

Microsoft's approach to a multi-tier versioning of it's Operating Systems (Home/Basic to Enterprise/Ultimate) is designed to compensate for pirating of their software and to maximize profits by differentiating, however slight, between versions of their operating systems(s).

Apple's approach to use their OS by subsidizing it's value through the sale of Apple Hardware in an industry where they own < 10% of the current quarterly market isn't going to even bring the Antitrust Sherman Act into play.