Psystar Working on Mac Laptop Clone, Apple Files DMCA Charges

[NoSmokingBandit]

How does that work with updates?

This is from a few pages back, this thread moves fast, lol.
Actually, my machine works great with updates. I can update anything, no worries. The vanilla kernel doesn let me sleep (havent tried vanilla kernel since 9.2 though so new ones might, its kinda iffy). So all i do is install the updates, reboot, move old kernel back in, reboot. An extra 10 seconds to update my hac.

So the EULA is useless? You can just click yes every time and not care what it says?

The EULA is only a legal contract if it is legally enforceable. The issue here is the anti-trust action of "tying" or making the customer buy one product in order to use a completely separate product. As we've seen from the PsyStar ruling, Mac OS X is in the same market, and is competing against, Windows and other Os's. Mac hardware is also competing against other hardware like Dell, HP, Acer machines. Making the consumer buy one product (a mac) in order to use a completely separate product (OS X) is illegal due to anti-trust (or anti-competition) laws.
When a court decides whether or not the EULA is enforceable we will know whether or not osx86 is illegal. Until then it is "innocent until proven guilty."
Though, with the way the government has been acting, they will probably side with the corporation instead of on the side of logic and reasoning as we've seen from the bailout plans that the middle class must pay for. But alas, this is not the place to bitch about the government.

 

[IJ Reilly]

Making the consumer buy one product (a mac) in order to use a completely separate product (OS X) is illegal due to anti-trust (or anti-competition) laws.

No, it's not. Tying is only illegal when the company has proven market power in an appropriately-defined market, and is shown to be using that market power to restrain trade. Since in Apple's case neither is true, tying OSX to Apple hardware is perfectly legal, just as it is in the vast majority of instances where it happens.

 

[heisetax]

No new cheaper models

This is what I believe Apple will do:

Drain every last cent from Psystar with legal fees
Get them shut down
Get as many people responsible personally fined
Then release their own xMac that would have killed Psystar's offerings anyway, had they not been sued into oblivion.



I hate to see you go... but you will, if this is your ultimatum.

Apple under Steve Jobs is not about to change their business model in the way you would want. They made a MacMini, kept it from being very successful with its price. Now that they have not updated it in such a long time, they are making it even more overpriced. Add this to their reluctance to make a mid=ranged Intel Mac Tower & you have your answer to why there are so many people willing to come out & try their best to sell a computer that will run the Mac OS out of the box. I do not expect this to change until at least sometime after Steve Jobs retires.

Some people want to make their own Mac experience. The bigger Apple gets, the more they look like MicroSoft.

 

[Winni]

This is irrelevant in this case since Apple's EULA for OSX is readily available on their website before purchase. Not to mention that Companies are not exempt from EULA's if they get in the business of reselling - they just cannot claim ignorance after the first violation - after that its willful neglect.

Individuals might get out of an EULA, but they have been found to be valid - and I would bet that they are considered contracts for businesses.

Well, an EULA is what it says: An END USER license agreement. A reseller is not bound by the terms of any EULA, since a reseller does not use the software but only (re-)sells it, and Psystar is not the end user of the version of OS X that they (re-)sell to their customers.

Furthermore, OS X is available on the market in RETAIL boxes that can be purchased by anybody. Unlike some have stated here, it says NOWHERE on a retail box that it is an UPGRADE - which would imply that you --might-- need an older software version to be eligible to purchase the software. Apple does not sell upgrades or updates, they only sell full (retail) versions of their software.

And now Psystar is reselling retail versions of OS X and patches those versions to make them run on their own hardware. Which are two different legal actions, just to make this absolutely clear. One is reselling the software, the other one is installing and patching that software on the computers they sell to their customers.

They do not have an OEM contract with Apple, but neither has Amazon or Gravis, the biggest German Apple reseller, or anybody else who is selling Apple products. Still, Amazon and others are selling retail boxes of OS X anyway, because it can be traded freely. Without any doubt, it is absolutely legal that Psystar sells a retail box of OS X to their customers.

That only leaves the EULA situation and the patching of the software in question.

In some cases, certain EULAs might be valid. In other cases - and in other countries - certain EULAs have been found to be invalid and even illegal. Apple's EULA has not been challenged before, and currently it is only being challenged in the United States. Maybe Apple will win in the US, but that doesn't mean that there EULA will be found valid any other country of your choice as well.

The same goes for changing the code of some software to make it work. In many countries (including Germany) it is perfectly legal to patch a software to make it work without a hardware dongle (as for example a USB key) - provided (and that is important) that the dongle causes compatibility issues with other software or hardware on the system and, of course, that you own a legal license to the software (which Psystar customers do). And it seems that even the American DMCA has more holes than a swiss cheese, so it'll be interesting to see if Apple is only clutching at straws here or if the DMCA will actually back their claims. Furthermore, Apple is giving away major parts of OS X (namely the Darwin UNIX foundation) under an Open Source license, and it certainly is not illegal to modify open source software.

I think Apple is standing on very shaky ground here, and their best chance for winning this case is only the fact that US-American laws and the US-American jurisdiction are extremely corporate friendly, to put it mildly.

And to all the "Go, Apple, Go!" screamers: You really must enjoy living in a cage. And you even pay money for living there. You're cheerleading for a company that files lawsuits to take away or at the very least significantly restrict YOUR rights to use the stuff that you have bought with your good money. It's like buying a book for double the price, but you are only allowed to read it in a Starbuck's shop - and at the same time you hate the little company that wants to sell you the same book for half the price and you'd be allowed to read it anywhere you like. Why? Because it's no longer special when anybody can have it on any machine? Does that make -you- less special? It's in the best interest of everybody if Apple loses this lawsuit.

 

[IJ Reilly]

They do not have an OEM contract with Apple, but neither has Amazon or Gravis, the biggest German Apple reseller, or anybody else who is selling Apple products. Still, Amazon and others are selling retail boxes of OS X anyway, because it can be traded freely. Without any doubt, it is absolutely legal that Psystar sells a retail box of OS X to their customers.

I'm not sure what you are trying to say here, but in reality nobody has an OEM contract with Apple because Apple has no OEMs. They have retail resellers of Apple products, but no OEMs. Those dealers are authorized Apple resellers; non-authorized resellers are in the grey market. So it is certainly in doubt whether Psystar can legally resell the retail version of OSX, because they are not authorized Apple dealers -- even if we wanted to imagine that this was all they were actually doing.

 

[ddTaylor]

So the EULA is useless? You can just click yes every time and not care what it says?

You can write anything you would like in a EULA - I did take college law and contract courses - that does NOT mean they are binding, legal or ethical (EULA). Just because it is written and you must agree to it before you use or even install the application does not make it binding or legal. That is up to the courts and if you search the law library and nexus you will see that EULA's have never been fully vetted in court - parts have and others have not. The idea behind a EULA is that the USER must agree. This is not about Pystar exactly - but weather the owner of a Pystar can install OS X on the system as Pystar NO LONGER OFFERS THE INSTALL AS AN OPTION FROM THE FACTORY.

D

 

[pdjudd]

I'm not sure what you are trying to say here, but in reality nobody has an OEM contract with Apple because Apple has no OEMs. They have retail resellers of Apple products, but no OEMs. Those dealers are authorized Apple resellers; non-authorized resellers are in the grey market. So it is certainly in doubt whether Psystar can legally resell the retail version of OSX, because they are not authorized Apple dealers -- even if we wanted to imagine that this was all they were actually doing.

That's what I was getting at. Since Apple doesn't offer OEM licensing, the default license is the original EULA which Psystar is expected to abide by - its not an end use so it cannot abide by the licencing. It simply cannot accept the licence theselves or on somebody else behalf.

And even if we assume that Psystar was an authorized dealer (which we know they are not), that still doesn't enable them with any right to do anything to OSX without Apple's permission. They may be able to sell them by nature of first sale doctorine - but it would have to be the entire unaltered product being that they are a company and not an individual. But, as Gnasher, you, Matticus, myself, and a lot of others have been asserting that is not what Psystar is doing.

 

[ddTaylor]

This is irrelevant in this case since Apple's EULA for OSX is readily available on their website before purchase. Not to mention that Companies are not exempt from EULA's if they get in the business of reselling - they just cannot claim ignorance after the first violation - after that its willful neglect.

Individuals might get out of an EULA, but they have been found to be valid - and I would bet that they are considered contracts for businesses.

I was making a GENERAL statement. I was also referring to the EULA as it is intended - for the END USER, not Pystar. Just because Apple has the EULA on-line does not make it binding for ANYONE unless the courts rule in that fashion. If you check the legal papers you will see MANY contracts, even though there were signed - were not legal and did not hold up in court. I am a PRIME example of this. I work in radio - as a broadcaster. I worked for a syndicated radio program for several years and the job I left required that I sign a NO COMPETE contract. I did - as EVERY station at that time required one. I took the syndicated job in the same area - but if it were not for a Federal law that prohibits any employer keeping me from making a reasonable living in my chosen profession - I would have been held to an illegal clause in my contract and I would have been required to wait a year before I took the above mentioned job.

Just because the contract is written and singed does not make it legal, binding or ethical - and yes, I have said that before, but it is true. And yes, I had a choice to sign the contract or not - but at the expense of my career and ability to make money. I signed the contract under protest but did not complain loudly as I wanted the job and the exposure - but that does not make that clause in my contract right.

D

 

[pdjudd]

Just because Apple has the EULA on-line does not make it binding for ANYONE unless the courts rule in that fashion.

You missed my point. I was claiming that you cannot claim Apple's EULA is sealed in the box - it is not. I was not making any assertion that Apple's EULA is legally binding - Apple is not making that claim either no doubt.

 

[Mal]

Pystar NO LONGER OFFERS THE INSTALL AS AN OPTION FROM THE FACTORY.

Try being a little more informed next time.

Psystar's product description:

The highly extensible Open Computer is a configuration of PC hardware capable of running unmodified OS X Leopard kernels. All known Leopard software works flawlessly including the built-in Software Update utility. The price includes a retail copy of Leopard in its original package. We preinstall OS X on your machine so that you may be able to begin using your Open Computer right out of the box. Information about our restore disc is available on our website. Please note that Bootcamp is not supported by Open Computers because it is Apple-hardware specific.

They do indeed offer it preinstalled still, and have no plans of stopping until shut down by a judge, which will almost certainly happen and is a good thing, because these leeches have no place in the market. Of course, they could go on selling PC's with Windows or Linux (provided they're a Windows OEM, which may not be the case either), but c'mon, they've got nothing unless they rip off Apple's products.

jW

 

[BaldiMac]

Well, an EULA is what it says: An END USER license agreement. A reseller is not bound by the terms of any EULA, since a reseller does not use the software but only (re-)sells it, and Psystar is not the end user of the version of OS X that they (re-)sell to their customers.

You are missing the point. Psystar is required to have a license from Apple (the legal owner) to resell OS X. Basic copyright law. If the EULA does not apply to them (I don't know if it does or doesn't), what license are they distributing it under?

Furthermore, OS X is available on the market in RETAIL boxes that can be purchased by anybody. Unlike some have stated here, it says NOWHERE on a retail box that it is an UPGRADE - which would imply that you --might-- need an older software version to be eligible to purchase the software. Apple does not sell upgrades or updates, they only sell full (retail) versions of their software.

The judge is the Psystar case ruled that Apple made it clear to consumers that OS X was locked into Apple hardware.

And now Psystar is reselling retail versions of OS X and patches those versions to make them run on their own hardware. Which are two different legal actions, just to make this absolutely clear. One is reselling the software, the other one is installing and patching that software on the computers they sell to their customers.

Reselling OS X in violation of its license is currently illegal. "Patching" OS X may or may not be illegal depending on if the patch is found to have modified OS X.

They do not have an OEM contract with Apple, but neither has Amazon or Gravis, the biggest German Apple reseller, or anybody else who is selling Apple products. Still, Amazon and others are selling retail boxes of OS X anyway, because it can be traded freely. Without any doubt, it is absolutely legal that Psystar sells a retail box of OS X to their customers.

Of course all of the companies you listed has a contract with Apple. Where do you think the get the boxes? It may even be legal for Psystar to sell a retail box. I don't know. But it is illegal for them to supply software, "patches", that have little valid use other than contributing to copyright infringement.

That only leaves the EULA situation and the patching of the software in question.

In some cases, certain EULAs might be valid. In other cases - and in other countries - certain EULAs have been found to be invalid and even illegal. Apple's EULA has not been challenged before, and currently it is only being challenged in the United States. Maybe Apple will win in the US, but that doesn't mean that there EULA will be found valid any other country of your choice as well.

Apple and Psystar are both US companies. The validity of the EULA in other countries is not an issue.

The same goes for changing the code of some software to make it work. In many countries (including Germany) it is perfectly legal to patch a software to make it work without a hardware dongle (as for example a USB key) - provided (and that is important) that the dongle causes compatibility issues with other software or hardware on the system and, of course, that you own a legal license to the software (which Psystar customers do). And it seems that even the American DMCA has more holes than a swiss cheese, so it'll be interesting to see if Apple is only clutching at straws here or if the DMCA will actually back their claims. Furthermore, Apple is giving away major parts of OS X (namely the Darwin UNIX foundation) under an Open Source license, and it certainly is not illegal to modify open source software.

The whole key to what you are saying here is that Psystar customers would need a legal license. They do not have a legal license. If you violate the EULA, the license is invalid. If the EULA is invalid, you have no license.

I think Apple is standing on very shaky ground here, and their best chance for winning this case is only the fact that US-American laws and the US-American jurisdiction are extremely corporate friendly, to put it mildly.

This has nothing to do with big corporations versus the little guy. It has to do with basic copyright law that exists in most democratic countries. Only Apple, as the owner of OS X, has the right to license it's use. They have the right to sell a license to who they want under the terms that they want.

If you don't agree to those terms, you have the right not to buy it. You have the right to return it for a full refund in the US if you do not agree to the terms of the EULA.

And to all the "Go, Apple, Go!" screamers: You really must enjoy living in a cage. And you even pay money for living there. You're cheerleading for a company that files lawsuits to take away or at the very least significantly restrict YOUR rights to use the stuff that you have bought with your good money.

I'm not rooting for Apple. I'm rooting against Psystar for doing something illegal. Apple isn't taking anyone's rights away. How can you take away something that you never had?

I'm also rooting for the reinforcement of my rights to the things that I create. Apple will not license OS X to Psystar, so they just took it. Why would anyone think that is good?

It's like buying a book for double the price, but you are only allowed to read it in a Starbuck's shop - and at the same time you hate the little company that wants to sell you the same book for half the price and you'd be allowed to read it anywhere you like.

To use your analogy, it's like buying a book that is only available in hardcover at full price and at the same time hating the little company that is selling the unlicensed paperback at half price without the permission of the author.

Why? Because it's no longer special when anybody can have it on any machine? Does that make -you- less special? It's in the best interest of everybody if Apple loses this lawsuit.

Do you really think that the only impact on Apple will be that they have to offer lower priced machines to compete with all the clones? Lower margins will impact the stock price. Lower profits will affect R&D. I happen to like Apple products currently. It's not in my best interest.

 

[IJ Reilly]

That's what I was getting at. Since Apple doesn't offer OEM licensing, the default license is the original EULA which Psystar is expected to abide by - its not an end use so it cannot abide by the licencing. It simply cannot accept the licence theselves or on somebody else behalf.

And even if we assume that Psystar was an authorized dealer (which we know they are not), that still doesn't enable them with any right to do anything to OSX without Apple's permission. They may be able to sell them by nature of first sale doctorine - but it would have to be the entire unaltered product being that they are a company and not an individual. But, as Gnasher, you, Matticus, myself, and a lot of others have been asserting that is not what Psystar is doing.

I see. I believe too much emphasis is being placed on the EULA. Even if Apple had no license agreement attached to the use of OSX, they'd still have the right to define their patented, trademarked and copyrighted Macintosh product as the combination of hardware and the OS. The fact that one part of the Mac can be purchased separately does not confer on the purchaser the right to reconstruct the other parts, let alone, resell the combined product to someone else commercially.

 

[gnasher729]

As I understand it, Psystar is buying a unique copy of OS X for every machine. If so, then you've got the heart of this issue completely wrong.

Since Psystar has never, ever bought a single copy of MacOS X with a license that allows it to be installed on a Psystar computer, and since Psystar does indeed install MacOS X on Psystar computers, they commit copyright infringement every single time they do this.

You can write anything you would like in a EULA - I did take college law and contract courses - that does NOT mean they are binding, legal or ethical (EULA). Just because it is written and you must agree to it before you use or even install the application does not make it binding or legal. That is up to the courts and if you search the law library and nexus you will see that EULA's have never been fully vetted in court - parts have and others have not.

Of course you are hundred percent correct that just because it's written in a EULA doesn't mean it is legal. But apart from the hypothetical possibility, which parts of Apple's EULA do you think might be illegal? And in your answer you should take into account that the judge in this case already has decided that it is Apple's undeniable right to restrict the use of MacOS X to Apple-labeled computers.

I was making a GENERAL statement. I was also referring to the EULA as it is intended - for the END USER, not Pystar. Just because Apple has the EULA on-line does not make it binding for ANYONE unless the courts rule in that fashion.

If that license doesn't apply to Psystar, then what license does Psystar have? By Psystar's own admission, they never even _asked_ Apple for any other license.

 

[ProwlingTiger]

Mapple? Are you confused?

Sounds like we know someone who's ill-informed. Are you buy chance running a Hackintosh? OS X clearly states in the license agreement.....Oh...bleh everyone who has common sense knows this.

 

[pdjudd]

I see. I believe too much emphasis is being placed on the EULA. Even if Apple had no license agreement attached to the use of OSX, they'd still have the right to define their patented, trademarked and copyrighted Macintosh product as the combination of hardware and the OS. The fact that one part of the Mac can be purchased separately does not confer on the purchaser the right to reconstruct the other parts, let alone, resell the combined product to someone else commercially.

I agree 100%. We are arguing the same points here - we both know that the EULA doesn't apply in this case - I have no doubt that Apple wants to bring that up in court unless it has to. Unfortunately people still like to trout out the old "EULA's have like never been shown to be legal - go Psystar" claim that is totally besides the point. The problem is that Since there is no OEM licensing for OSX, the only one we got is the EULA.

 

[ProwlingTiger]

So if tomorrow MS decides to enter the hardware business and changes its EULA saying Windows can now only run in their own hardware, will that constitute being a monopoly? Can we say its the same thing with Apple practice right now?

No. Listen up to my short law lesson:

Microsoft LICENSES Dell, HP, etc to LEGALLY USE their OS. Apple DOESN'T!

See the difference? It's a difference in business model. Hence the reason Microsoft has greater market share in the OS market. And I'm fairly sure I have this right, but I'm sure some "I wanna cheap Mac!" person will butt in.

EDIT: People more knowledgeable than I on the topic:
http://www.macdailynews.com/index.php/weblog/comments/19211/
http://theappleblog.com/2007/02/01/apple-is-not-going-to-license-the-mac-os-to-other-hardware-makers/

In short, Apple's survival may depend on this lawsuit. Like Mac OS? Like the iPhone? Root for Apple. According to one source I mentioned, as of 2007, 33% of Apple's market share was from hardware sales, and guess what's bundled with hardware? Yep, that'll be Mac OS for 200, Alex.

I think I read an article about some poor licensing scheme with Apple in the 80s-90s, lemme try and find it. Needless to say, Jobs turned that around, and surprise: Profit!


Er...wow I sound like a jerk. Sorry bad day at the office, I guess.

 

[IJ Reilly]

I think I read an article about some poor licensing scheme with Apple in the 80s-90s, lemme try and find it. Needless to say, Jobs turned that around, and surprise: Profit!

Apple licensed the MacOS for several years during the mid-1990s. During that period Apple's market share was cut in half, Apple stated bleeding cash, and we came pretty close to losing both Apple and the Mac. Other than that, it was a great success.

 

[ddTaylor]

You missed my point. I was claiming that you cannot claim Apple's EULA is sealed in the box - it is not. I was not making any assertion that Apple's EULA is legally binding - Apple is not making that claim either no doubt.

Again - I am not making a specific claim about Apple. I made a GENERAL statement about the EULA in most applications. It does not invalidate my point nor validate yours.

D

 

[ddTaylor]

Try being a little more informed next time.

Psystar's product description:

The highly extensible Open Computer is a configuration of PC hardware capable of running unmodified OS X Leopard kernels. All known Leopard software works flawlessly including the built-in Software Update utility. The price includes a retail copy of Leopard in its original package. We preinstall OS X on your machine so that you may be able to begin using your Open Computer right out of the box. Information about our restore disc is available on our website. Please note that Bootcamp is not supported by Open Computers because it is Apple-hardware specific.

They do indeed offer it preinstalled still, and have no plans of stopping until shut down by a judge, which will almost certainly happen and is a good thing, because these leeches have no place in the market. Of course, they could go on selling PC's with Windows or Linux (provided they're a Windows OEM, which may not be the case either), but c'mon, they've got nothing unless they rip off Apple's products.

jW

Thank you for pointing that out as when I last checked that was NOT an option. When did that change? I will have to go to the Internet way-back machine in order to find that out as it was - at one point, removed as an option.

D

 

[ddTaylor]

Of course you are hundred percent correct that just because it's written in a EULA doesn't mean it is legal. But apart from the hypothetical possibility, which parts of Apple's EULA do you think might be illegal? And in your answer you should take into account that the judge in this case already has decided that it is Apple's undeniable right to restrict the use of MacOS X to Apple-labeled computers.

That is why I have chosen NOT to comment on that as that is up to the courts - not me. If the courts deem the EULA is restrictive they can rule on limitations. I have specifically gone out of my way to keep my opinions in check and simply make points on the case devoid of my own personal opinion.

 

[ddTaylor]

The judge is the Psystar case ruled that Apple made it clear to consumers that OS X was locked into Apple hardware.

When did this go to trial? It is in court - but unless I am missing something, the case is still in the litigation stage and has yet to be decided or ruled on by a judge or jury.

The Judge rules on MOTIONS at this stage that can be used for defense and for the counter claim and those brought by Apple - but ruling against Pystar is not an endorsement of Apple. It was simply that Pystar did not meet the minimum burden for that motion or defense. The claims by Pystar could be brought again provided they meet the burden set forth by the law. I admit, I need to read up on the case a bit more but no official ruling has been handed down - and that I know.

Again - I am no lawyer but I am well read and versed on several things. I will contact my friend who is a contract lawyer and get his take on it. He would be the one to get a more informed answer.

 

[twoodcc]

looks like this lawsuit might take a while. i really wouldn't mind seeing a little competition. i mean, wouldn't it hurt microsoft more than apple anyways?

 

[pdjudd]

Again - I am not making a specific claim about Apple. I made a GENERAL statement about the EULA in most applications. It does not invalidate my point nor validate yours.

D

No - but the point is irrelevant. Its not valid or invalid simply because EULA's are not the point of the lawsuit. Psystar is not an end user. They cannot agree to it even if they wanted to - it does not apply to them and nothing Apple proves publicly would apply to them. Its a moot point to begin with. Te entire point of EULA's are a red herring in this discussion and I ain't following it anymore.

 

[macadmiral]

looks like this lawsuit might take a while. i really wouldn't mind seeing a little competition. i mean, wouldn't it hurt microsoft more than apple anyways?

haha sweet! down with the apple's closed practices! maybe they will be forced to go back to the amazing company they were back in the early 2000's???

 

[ProwlingTiger]

Apple licensed the MacOS for several years during the mid-1990s. During that period Apple's market share was cut in half, Apple stated bleeding cash, and we came pretty close to losing both Apple and the Mac. Other than that, it was a great success.

Exactly, my fellow MR friend. Its good someone here realizes why we need Apple to win. I have almost NO doubt that they will lose. But...and I don't like to be conspiracist (sp), but what if Microsoft is funding Pystar? I'd question their money flow if they're standing up to Apple, a company with billions in excess cash lying around. They're a brave bunch and if I were Apple, I'd countersue after its ruled that Mac OS is tied to hardware. Countersue for all the sale money for each copy of Mac OS software they used.