Psystar to Change Tactics and Sell Mac OS X-Ready Computers?

[pdjudd]

In the end it all boils down to the question when will Apple sue other cloners in different countries?, right?

Right. The thing is we cannot predict what will happen. The Psystar case was the first one that Apple went after. History suggest that they will go after others, but this cloning market that PearC and Psystar exploited is new because it exploits Apple's usage of Intel systems.

US-court decisions aren't binding to european courts/laws and vice versa.

Really? Can you state that with 100% certainty? Would that cover laws that are made in agreement with one country and another. What about facts from one case where the laws are very similar?

Apple finally has to sue every other clone maker all over the world, which i'm totally fine with as long as they don't sue the end users who install their own hackint0shs just for fun and without any intentions to resell these hackint0shes.

Well, they kinda have to no matter what. Companies have an internal obligation to go after people who are violating their IP. Apple seems to be interested only in people who are profiting off their IP (probably because the cases are stronger) and not playing whack-a-mole with customers and risk a PR backlash akin to what the MPAA and RIAA does.

 

[balamw]

In the end it all boils down to the question when will Apple sue other cloners in different countries?, right?

Yes, and ultimately if they will go after individuals, which I doubt for the same reasons as pdjudd AAPL doesn't want to be seen in the same light as the RIAA/MPAA.

I've said this before in other threads too.

An individual knowingly violating an EULA or Copyright is one thing, I'm all for individual experimenting and stretching the boundaries of what can be done with someone else's product.

Individuals knowingly ignore or break the rules all the time, these IP violations are similar to jaywalking or speeding violations. Not easily or often enforced.

However, making that an essential part of your business plan just isn't a good idea. It's anti-business in the sense that if you break the rules by misusing someone else's intellectual property, what are you going to do when someone rips you off?

Were Psystar able to somehow win this and sell their boxes legally OS less and with Rebel EFI, anyone and their uncle could do exactly the same competing for the same (apparently very small) market. They'd just have to point the user to the free Empire EFI instead of the $50 Rebel EFI. Not the best business plan.

B

 

[cmaier]

Really? Can you state that with 100% certainty? Would that cover laws that are made in agreement with one country and another. What about facts from one case where the laws are very similar?

Court decisions in the U.S. aren't binding outside the U.S. (and vice versa) - at least not in intellectual property. (there are some exceptions in admiralty, I'd imagine, and perhaps in certain special areas involving international treaties). The international copyright treaties do not provide for any sort of mechanism for applying laws of one country to another - instead they set a minimum baseline for the laws in each country - each country's courts are responsible for enforcing the laws in that country.

 

[pdjudd]

However, making that an essential part of your business plan just isn't a good idea. It's anti-business in the sense that if you break the rules by misusing someone else's intellectual property, what are you going to do when someone rips you off?

Exactly. Copyrights exist to protect the interests of intellectual work. I may have a great idea for the next biggest software product that can totally make, say Microsoft, look like amateurs and dinosaurs with their product. It's that good. I could make billions off of it, it is so good.

Two problems - What incentive do I have to create this product and get rich off of my ideas (regardless of how I am to distribute it) if I cannot protect my rights to from somebody ripping me off via copying? None. I would rather suppress it than to simply get bent over the table when I am in debt and cannot pay anybody.

Second. My product requires some backing since it is going to be complicated to design - I am going to create a company, hire staff, buy infrastructure, research, etc. In short, investors or my credit card. Suppose I opt for a loan or investors since I am thinking real big and my expenses exceed what my credit rating is. Who is going to invest in my dream, assuming that it would be successful, if there is no guarantee of my ability to profit from it sue to piracy that I cannot prevent. Nobody.

 

[pdjudd]

Court decisions in the U.S. aren't binding outside the U.S. (and vice versa) - at least not in intellectual property. (there are some exceptions in admiralty, I'd imagine, and perhaps in certain special areas involving international treaties). The international copyright treaties do not provide for any sort of mechanism for applying laws of one country to another - instead they set a minimum baseline for the laws in each country - each country's courts are responsible for enforcing the laws in that country.

Not that I don't believe you, but can you provide links to show that is the case (I would prefer English ones as I cannot speak German to same my life). I am not comfortable on accepting legal statements without something to back up on (you know how the old saying goes about it being on the internet it must be true and all) Also, what exactly is Admiralty? It is a concept foregeon to me.

How exactly is it that Piracy is not rampant in Germany with products that are not distributed in any other way than pysical distribution? For example, does the German equivalent of Best Buy have kiosks for when you wish to buy MS office, you can sign an EULA that the retailer would provide to you? Or does Microsoft not assert that the German Best Buy not have to do that because the retailer is not a licensee, and is just a distributor of the disc? How does that all work, I am curious.

 

[cmaier]

Not that I don't believe you, but can you provide links to show that is the case (I would prefer English ones as I cannot speak German to same my life). I am not comfortable on accepting legal statements without something to back up on (you know how the old saying goes about it being on the internet it must be true and all) Also, what exactly is Admiralty? It is a concept foregeon to me.

How exactly is it that Piracy is not rampant in Germany with products that are not distributed in any other way than pysical distribution? For example, does the German equivalent of Best Buy have kiosks for when you wish to buy MS office, you can sign an EULA that the retailer would provide to you? Or does Microsoft not assert that the German Best Buy not have to do that because the retailer is not a licensee, and is just a distributor of the disc? How does that all work, I am curious.

you are asking me to prove a negative. Under the rule of legal comity, courts in one jurisdiction will not pay attention to courts from another country unless there is a law in that jurisdiction that requires them to. There are no such rules in copyright treaties.

Admiralty is the law of the sea.

I can point you at copyright treaties if you'd like.

 

[pdjudd]

you are asking me to prove a negative. Under the rule of legal comity, courts in one jurisdiction will not pay attention to courts from another country unless there is a law in that jurisdiction that requires them to. There are no such rules in copyright treaties.

Germany has copyright laws though - and Germany does have to abide by certain EU regulations too correct? And no I am not asking you to prove a negative. I am just asking for links that back up your assertions. A legal court decision perhaps.

Admiralty is the law of the sea.

OK. We can strike that as neither Apple, nor PearC have any pretense on the ocean.

I can point you at copyright treaties if you'd like.

Are they specific to Germany? If so, yes. I am really interested in reading what German copyright law says about intellectual property as it relates to business (assuming I can understand it of course). I simply cannot comprehend a copyright law that does not allow a company to enforce their copyrights. If i interpret this correctly - Piracy would be huge in Germany since there would be no way for MS to dictate Upgrades versus Full licenses of their software if somebody decides to hack their protections because I am willing to bet that no retailer provides the EULA in store. That doesn't strike me as practical.

 

[3lutz3toe]

I for one would try Psystar considering how much lower it is compared to Apple. Albeit it would be a 2nd computer instead of the main one, which would be an Imac.
—Can you imagine if MS would only allow Windows 7 to be installed on PCs only! Apple is a hypocrite if it would try to stop this altogether. One thing to cry infringement w/ OS preinstalled but it is another if the user self install!

 

[pdjudd]

I for one would try Psystar considering how much lower it is compared to Apple. Albeit it would be a 2nd computer instead of the main one, which would be an Imac.

Well, you cannot - They won't sell you one right now and THere is still an injunction hearing coming up that is going to make sure that you cannot get one first hand.

—Can you imagine if MS would only allow Windows 7 to be installed on PCs only! Apple is a hypocrite if it would try to stop this altogether. One thing to cry infringement w/ OS preinstalled but it is another if the user self install!

Again, for what has to be the billionth time, Microsoft is a convicted monopolist whose entire business is based on maximizing their install base. They are not a hardware company. However if they theoretically were, that decision would not be illegal (assuming they were no longer a monopolist). Everything with Microsoft is different.

And read what hypocrisy is. Apple encourages you to legally license Windows to use Boot Camp. They also want you to obey their licensing terms. That is the exact opposite of Hypocracy. MS has a different business approach than Apple does.

 

[cmaier]

To bE clear, all I am saying is country A does not have to pay attention to a court in country B, absent a law in country that makes I so, and that the WIPO treaty does not impose any such laws. I make no claims about what the laws are in germany as I am an intellectual property lawyer only in the US. It I highly likely that Germany has to accede to rulings of European courts since in a sense European countries are like US states. But I believe your premise was that somehow a German court would pay attention to a US court, which I clearly not true. Nor would a US court pay attention to a German copyright ruling. Look up "comity" to see how this works. look up WIPO to see the international copyright treaty.

Germany has copyright laws though - and Germany does have to abide by certain EU regulations too correct? And no I am not asking you to prove a negative. I am just asking for links that back up your assertions. A legal court decision perhaps.



OK. We can strike that as neither Apple, nor PearC have any pretense on the ocean.


Are they specific to Germany? If so, yes. I am really interested in reading what German copyright law says about intellectual property as it relates to business (assuming I can understand it of course). I simply cannot comprehend a copyright law that does not allow a company to enforce their copyrights. If i interpret this correctly - Piracy would be huge in Germany since there would be no way for MS to dictate Upgrades versus Full licenses of their software if somebody decides to hack their protections because I am willing to bet that no retailer provides the EULA in store. That doesn't strike me as practical.

 

[pdjudd]

It is highly likely that Germany has to accede to rulings of European courts since in a sense European countries are like US states.

That's what I was trying to get around to. I was interested in copyright. After all, not everything intellectually based is sold with a license attached to it... For the record, that's what I think would happen too - WIPO would presumably affirm Apples copyrights just like they were upheld here (we are part of the WIPO too).

But I believe your premise was that somehow a German court would pay attention to a US court, which I clearly not true. Nor would a US court pay attention to a German copyright ruling. Look up "comity" to see how this works. look up WIPO to see the international copyright treaty.

That really wasn't a premise - it was just speculation. I was really thinking of WIPO rather than just US copyright. The rest no longer applies.

My thought process was that Apple could bring up a US court case elements for things like evidence or expert testimony, I honestly cannot think of an instance where somebody would do that rather than just re-invent the wheel so to speak. However since I was thinking of the wrong party, I can concede that thought process was flawed.

 

[cmaier]

That's what I was trying to get around to. I was interested in copyright. After all, not everything intellectually based is sold with a license attached to it... For the record, that's what I think would happen too - WIPO would presumably affirm Apples copyrights just like they were upheld here (we are part of the WIPO too).



That really wasn't a premise - it was just speculation. I was really thinking of WIPO rather than just US copyright. The rest no longer applies.

My thought process was that Apple could bring up a US court case elements for things like evidence or expert testimony, I honestly cannot think of an instance where somebody would do that rather than just re-invent the wheel so to speak. However since I was thinking of the wrong party, I can concede that thought process was flawed.

WIPO doesn't affirm anything - all WIPO is is an agreement between almost all countries that each country will provide certain minimum protections for works of authorship. For example, each country must have a certain minimum term for copyright protections, each country must allow an author to control copies, derivative works, computer software must be protected, etc. There are other treaties (NAFTA, for example - but that doesn't involve Germany of course) that deal with certain cross-country protections. But, as a rule, there is no concept of an "international copyright" overseen by some global entity. Same deal with patents - though there is a treaty (PCT), if you want a patent in other countries you have to file for one in each country, and each country looks at it and decides without considering whether your patent was granted by other countries.

 

[pdjudd]

WIPO doesn't affirm anything - all WIPO is is an agreement between almost all countries that each country will provide certain minimum protections for works of authorship. For example, each country must have a certain minimum term for copyright protections, each country must allow an author to control copies, derivative works, computer software must be protected, etc.

OK, but based on what you described (my bolding) that would almost certanly kill PearC right? Apple might have to re-argue some things from the Pystar case, but that seems pretty clear that I was somewhat right - no way Germany would eliminate Apples base copyrights regarding OSX. Apple may not be able to use breach of contract arguments, but that didn't stop Apple from winning their summary judgment on copyright alone. My overall belief is that PearC's big problem is not license related, but copyright related.

I hope that my assumptions are true here and I hope that I can safely assume that Germany won't allow a business to operate based on copyright infringement and can be ordered to stop (kind of like the injunction hearing).

But, as a rule, there is no concept of an "international copyright" overseen by some global entity. Same deal with patents - though there is a treaty (PCT), if you want a patent in other countries you have to file for one in each country, and each country looks at it and decides without considering whether your patent was granted by other countries.

I understand what you are getting at here. I am not trying to make that case - Just trying to get my hear around WIPO and not trying to claim the existence of International Copyright. WIPO just sets the ground rules. THe good news is that Psystar got stung by basic copyright rules too. It was very simple. It just seems Apple's biggest obstical is retreading ground that they covered - it should be easier this time. Not to mention, we don't know what PearC's arguments would be regarding a copyright suit. Lets just hope they don't take the Psystar approach and scream "antitrust!"

 

[cmaier]

It's a safe bet that Germany provide the standard protections preventing unsanctioned copying, derivative works etc.

However, the issue is whether there is an implied or express license to mak such copies that occurs as a result of the sale of the disk. In the us, absent a Eula, I couldn't make and distribute copies, but I could use my copy on unsanctioned computers. That's probably true in Germany too, so the issue is whether the Eula that prevents this is valid.

If pearpc is making copies to perform the installs, this could be a problem, but absent a valid Eula, maybe not. As long as they pay for each copy, of course.

On the other hand I find it unlikely that ACTUAL NOTICE of the Eula provisions is not good enough- pearpc certainly knows the terms of the Eula, so while they may not be liable fo the FIRST copy they bought and made, they should be for later copies.

Of course that's me Applying US theories to german law, so I may be completely wrong.

 

[pdjudd]

It's a safe bet that Germany provide the standard protections preventing unsanctioned copying, derivative works etc.

That's what I have gathered. People can try and show otherwise though.

However, the issue is whether there is an implied or express license to mak such copies that occurs as a result of the sale of the disk. In the us, absent a Eula, I couldn't make and distribute copies, but I could use my copy on unsanctioned computers. That's probably true in Germany too, so the issue is whether the Eula that prevents this is valid.

Agreed. with the exception of your last point. EULA's are supposed to be restrictive. If you have no Eula, you cannot go and ignore copyright. I don't think you are arguing this though. Not having an EULA doesn't mean that I can go and create a hundred copies of OSX like Psystar with it's clone station did and sell them outside of first sale. The US case said that was copyright infringement no matter what. The EULA was not dealt with there. Again, as you imply - the same thing would happen in Germany.

If pearpc is making copies to perform the installs, this could be a problem, but absent a valid Eula, maybe not. As long as they pay for each copy, of course.

Everything I have read says that is what they have done. It makes sense since it would be impractical for a company to hack OSX every single time. Of course the copy protections that Apple places are another problem for PearC - breaking them would be a big no-no as well and almost certainty would qualify as derivative works (it did here)

On the other hand I find it unlikely that ACTUAL NOTICE of the Eula provisions is not good enough- pearpc certainly knows the terms of the Eula, so while they may not be liable fo the FIRST copy they bought and made, they should be for later copies.

I agree 100%. They may be able to weasel out of one infringement claim, but there is no way they can realistically argue that they would be immune thereafter when it is the same process. EULA might kick in if they don;t do the clone station route.

And of course we should also ponder the fact that PearC is operating as a business like Psystar - Consumer laws may work different and German courts might place a higher burden of evidence for PearC's defense being that they are a company. I don't think a judge is going to like the argument of a CEO arguing "what license, they don't apply to me!" when businesses have resources available to them that consumers don't. We would have to see.

Of course that's me Applying US theories to german law, so I may be completely wrong.

I hope you are not wrong. I am mostly agreeing with you here. No way would any court make such a business unfriendly ruling regulating something as big as copyright. It would never fly.

 

[Byrnes3969]

I can live with "OSX Ready"

If an OSX Ready computer is all they'll be allowed to do I can live with that. At least consumers will have more choices with an upgradable computer running Snow Leopard

 

[cathul]

Agreed. with the exception of your last point. EULA's are supposed to be restrictive. If you have no Eula, you cannot go and ignore copyright. I don't think you are arguing this though. Not having an EULA doesn't mean that I can go and create a hundred copies of OSX like Psystar with it's clone station did and sell them outside of first sale. The US case said that was copyright infringement no matter what. The EULA was not dealt with there. Again, as you imply - the same thing would happen in Germany.

And this is the central thing to be discussed. If they don't copy the installation disk to an imaging station, but install OSX with each DVD from each OSX box they may be totally fine in regards to german copyright laws.

In addition...

Everything I have read says that is what they have done. It makes sense since it would be impractical for a company to hack OSX every single time. Of course the copy protections that Apple places are another problem for PearC - breaking them would be a big no-no as well and almost certainty would qualify as derivative works (it did here)

to build a hackint0sh nowadays you just have to boot from a proper bootdisk and install OSX like you do on any Mac. No "hacking" of the installed components necessary anymore. You just need the bootloader and an open source kext to be able to run OSX on a "compatible" personal computer.
It's not like 1 year ago where you needed a "hacked" dsmos.kext which contained copyrighted code from AAPL.

I agree 100%. They may be able to weasel out of one infringement claim, but there is no way they can realistically argue that they would be immune thereafter when it is the same process. EULA might kick in if they don;t do the clone station route.

Might, might not... i don't really know, but i do hope that Apple sues them to clarify the whole topic in regards to german laws.

 

[cmaier]

If an OSX Ready computer is all they'll be allowed to do I can live with that. At least consumers will have more choices with an upgradable computer running Snow Leopard

They won't be allowed to do that, either. Under US law it is just as bad to induce or contribute to copyright infringement as it is to directly infiringe. That's what got all the file sharing sites in trouble - things like telling people how to rip CDs, or providing the infrastructure that allows the infringing.

I would guess that they can sell boxes on which mac os can be installed so long as they:

- don't tell anyone how to install it
- don't mention mac os x anywhere in their ads, website, manual, tech support, etc.
- as long as the boxes run other os's (a "substantial noninfringing use")

 

[chevyorange]

Well unfortunately I can't make a post to cover every single fan. There are fans who enjoy Apple products and get on merrily with their lives. Then there are the fans who can't stand to admit that Microsoft might do something right once in a while. Or admit that perhaps there might be some faults with the iPhone. Those are the fans I am referring to.

Then there are the people who bitch about Apple and can’t get on with their lives.

 

[clyde2801]

They won't be allowed to do that, either. Under US law it is just as bad to induce or contribute to copyright infringement as it is to directly infiringe. That's what got all the file sharing sites in trouble - things like telling people how to rip CDs, or providing the infrastructure that allows the infringing.

I would guess that they can sell boxes on which mac os can be installed so long as they:

- don't tell anyone how to install it
- don't mention mac os x anywhere in their ads, website, manual, tech support, etc.
- as long as the boxes run other os's (a "substantial noninfringing use")

That's the beauty of it, they don't have to do any of the above. Sell the boxes with ubuntu and offer windows 7 as an add on. All they have to do is advertise the components used to build the machines and the hackintosh community would get the word out. Google 'best motherboards for hackintosh 2009' and a dozen sites will spell out the best, easiest motherboards and components to run an easy install of osx86. Plenty of sites and tech journalists and bloggers have already put up detailed instructions on how to do this, with even detailed bios settings.

Apple would have to turn its horde of lawyers loose on dozens of sites and individuals and earn plenty of bad press in the process. Some of the shine on apple would dull, and kids would start thinking of Cupertino they same way they think of the RIAA.

 

[cmaier]

That's the beauty of it, they don't have to do any of the above. Sell the boxes with ubuntu and offer windows 7 as an add on. All they have to do is advertise the components used to build the machines and the hackintosh community would get the word out. Google 'best motherboards for hackintosh 2009' and a dozen sites will spell out the best, easiest motherboards and components to run an easy install of osx86. Plenty of sites and tech journalists and bloggers have already put up detailed instructions on how to do this, with even detailed bios settings.

Apple would have to turn its horde of lawyers loose on dozens of sites and individuals and earn plenty of bad press in the process. Some of the shine on apple would dull, and kids would start thinking of Cupertino they same way they think of the RIAA.

Apple wouldn't bother - if only 750ish people were willing to buy systems when the work was all done for them, no one is going to buy the systems when they have to do it themselves.

 

[clyde2801]

Apple wouldn't bother - if only 750ish people were willing to buy systems when the work was all done for them, no one is going to buy the systems when they have to do it themselves.

Let's see, Apple was willing to fight psystar in two federal judicial districts (three, if you count bankruptcy court) in protracted legal battles to shut down a company that only sold 750 machines, but it won't bother to send takedown notices to websites and individuals? Besides the corporate need for profits, Apple has a dark urge to control every aspect of the mac user's experience, IMO. The only reason why it wouldn't go after osx86'ers is because of the bad press of a big company 'picking on' individuals.

People are reporting online that with the right hardware, instructions and tools that are freely available online, a working and (so far) upgradeable 10.6 machine can be had in a couple of hours. I think what held people off of buying psystar machines was apple's reaction in Court, or expecting Apple to break the compatibility in a future upgrade.

If you could get a machine with the specs of a mid range (headless)iMac for the price of a mac mini or less, who wouldn't want it?

 

[cmaier]

The 750 number wasn't known until long after the suit was filed.

Let's see, Apple was willing to fight psystar in two federal judicial districts (three, if you count bankruptcy court) in protracted legal battles to shut down a company that only sold 750 machines, but it won't bother to send takedown notices to websites and individuals? Besides the corporate need for profits, Apple has a dark urge to control every aspect of the mac user's experience, IMO. The only reason why it wouldn't go after osx86'ers is because of the bad press of a big company 'picking on' individuals.

People are reporting online that with the right hardware, instructions and tools that are freely available online, a working and (so far) upgradeable 10.6 machine can be had in a couple of hours. I think what held people off of buying psystar machines was apple's reaction in Court, or expecting Apple to break the compatibility in a future upgrade.

If you could get a machine with the specs of a mid range (headless)iMac for the price of a mac mini or less, who wouldn't want it?

 

[KnightWRX]

—Can you imagine if MS would only allow Windows 7 to be installed on PCs only!

I tried installing Windows 7 on an old SGI O2 I had laying around except I couldn't find the MIPS folder on the CD...

For the 1000000th time, Microsoft is in the software business, it sells an OS. They don't care what hardware you put it on. Apple is in the hardware business, they care if you don't buy their hardware and OS X to them is a marketing tool to sell said hardware.

Apple and oranges.

Let's see, Apple was willing to fight psystar in two federal judicial districts (three, if you count bankruptcy court) in protracted legal battles to shut down a company that only sold 750 machines, but it won't bother to send takedown notices to websites and individuals? Besides the corporate need for profits, Apple has a dark urge to control every aspect of the mac user's experience, IMO. The only reason why it wouldn't go after osx86'ers is because of the bad press of a big company 'picking on' individuals.

The fact that they haven't yet should clue you in. They went after Psystar because it was a commercial entity that was trying to profit off of Apple's intellectual property. They don't care about the hackintosh community that just do it for fun.

Which brings up the other point. The hackintosh community is in it for the pleasure of tinkering. Psystar selling OS X ready computers goes against the very thing that drives the community in the first place. People don't want to run a OS X computer, they want to build it themselves. Hence why it's a niche.

Psystar is dead. It was dead the day it was born.

 

[pdjudd]

The fact that they haven't yet should clue you in. They went after Psystar because it was a commercial entity that was trying to profit off of Apple's intellectual property. They don't care about the hackintosh community that just do it for fun.

Exactly, suing Psystar was not an attack on the hackintosh community - it was to protect their intellectual property rights against a commercial entity trying to profit from something they had no rights to. Its about protecting their IP. They have to defend it or others will exploit it and harm Apple as a company.

People fail to understand the basics: When you have IP, you have to protect it because there is always somebody who doesn’t care. This was all about Apples IP protection against a commercial entity. Period.