“In a move that could profoundly alter the face of the personal computer market, upstart Mac cloner Psystar on Thursday filed a countersuit against Silicon Valley heavyweight Apple, claiming that Steve Jobs’ company employs technology, dubious licensing schemes and high-pitched marketing campaigns to illegally destroy competition in the Mac market,” Paul McDougall reports for InformationWeek.
“In doing so, Psystar claims, Apple has violated Sherman antitrust rules and other U.S. laws. A Psystar victory in court could pave the way for other PC makers, including big vendors like Dell, HP and Lenovo, to enter the Mac market and offer alternatives to Microsoft Windows PCs,” McDougall reports.
MacDailyNews Take: Gee, if that happened worldwide productivity would surge to historic levels. Most of the IT guys would be out of work, though.
McDougall continues, “Psystar claims in court documents filed in U.S. District Court for San Francisco that Apple ‘has engaged in certain anticompetitive behavior and/or other actions that are in violation of the public policy underlying the federal copyright laws.'”
Full article here.
MacDailyNews Take: We’ll have some of whatever Psystar and their lawyers are smokin’. It is the last Friday afternoon in August, after all.
[Thanks to MacDailyNews Reader “Fred Mertz” for the heads up.]
“Apple competes in the PC market by selling Macs.”
The also compete in the OS market by selling boxed versions of OS X.
And Psystar competes in the PC market by selling Mac Compatibles with that OS on them.
Only the computer hobbyists was able to put Mac OS X on PCs. Now PeeStar comes along to try to make a profit out of it while standing on the hobbyists backs. I don’t know what your smoking PeeStar but you gotta be on something for throwing a counter-suit at Apple. Hope Apple smashes you “people” so bad that all they need is one Bounty to clean you up.
@antitrust
they don’t compete in the OS market. because they only sell to mac owners.
“they don’t compete in the OS market. because they only sell to mac owners.”
Not so. They SELL the OS to anyone. To prove that for yourself get a non Mac owning friend to walk into an Apple store and ask to buy a copy of Mac OS X. Come back and post here if they ask him to prove Mac ownership before doing so.
By the terms of the license they try to say you can only install it on “Apple Labelled hardware”, whatever that means. Although you can write whatever you like in a contract, it doesn’t mean a court will enforce it if it finds the terms to be unreasonable. In fact the court can reform the contract and strike that term if they see fit.
So the argument on Apple’s side is that even though the OS is sold as a standalone product and does run unmodified on other hardware, it is in fact only intended to be sold as a companion product to a Mac.
Psystar’s argument is that’s at worst illegal, at best unreasonable.
There’s a genuine issue here to be decided. A court could go either way. But it’s a high stakes game for Apple to be playing. If they lose, the OS is open. if they win the next cloner just gets smarter and sells a “Universal OS PC” and lets the customer go buy and install thier own Mac OS X. It’s already a slim argument that the EULA binds Psystar rather then the customer to whom the system is delivered. But by not reselling the OS, there is no possible argument that the EULA is in any way binding on the clone vendor because they are not a party to the contract. And it’s never going to be illegal to sell a standard Intel architecture PC with an EFI BIOS.
It’s not a great position for Apple. Even if they win this one,the next vendor can look at the decision and easily work around it. Long term their only real solution is going to be to bring frivolous lawsuits to harass clone vendors and Mac OS X purchasers in the hopes of deterring them.
You’re buying a license.
Apple Computer, Inc.
Software License Agreement for Mac OS X
Single Use License
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (”LICENSE”) CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS LICENSE BY CLICKING THE “AGREE/ACCEPT” BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE AND (IF APPLICABLE) RETURN THE APPLE SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND OR, IF THE SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK “DISAGREE/DECLINE”.
“You’re buying a license.”
Good luck for Apple getting this treated as a pure license rather than a contract, just saying something’s a license doesn’t make it so. And in any case, that would generally restrict thier ability to apply any additional terms to the transaction.
Under a license, having sold the product and been paid the agreed upon price they lose the ability to control resale of that item. In that situation you can tell someone not to create additional copies, but you can’t tell them how or how not to use with the one they brought from you past the limits present in copyright law.
Apple can’t just invent new rights it thinks it has. The Apple Hardware Only term would certainly be thrown out if they took the pure license line.
And in any case, don’t rely on a court agreeing that Apple has the right to put any terms it likes in a contract, especially one which it has not negotiated with the customer. The court can easily decide that term is illegal or unconscionable and strike it. And don’t forget, the EULA is an agreement between Apple and the end customer not Apple and Psystar. The court could easily decide that Apple’s suing the wrong guys.
The computer being sold is just a standard PC built out of off the shelf components, containing no proprietary Apple IP. No court is going to rule that that infringes any rights of Apple’s.
Likewise the term restricting the use of the OS to Apple labelled hardware seems on the face of it unreasonable as it’s only purpose is to force you to buy a Mac to go along with the OS you just brought.
So on the issues that really matter Apple is going to be 0 for 2.
Good luck to Apple on this one, they’ll need it.
@licensee:
If Apple’s hardware is just off-the-shelf, then you should be able to get a retail copy of Mac OS X and install it on an off-the-shelf home-made computer without any modifications (put the disk in the drive and boot).
Can you do that?
“If Apple’s hardware is just off-the-shelf, then you should be able to get a retail copy of Mac OS X and install it on an off-the-shelf home-made computer without any modifications”
Yes, that’s what Psystar does.
The system they have uses EFI emulation, EFI is an open spec and if Intel and the Unified EFI Forum had thier way, all PCs would use it instead of the current BIOS. No problem there.
The hardware they use is standard hardware, chosen to closely match the industry standard hardware Apple uses in it’s systems. No problem there either as Apple don’t own those specs or designs.
The Mac OS X they use is unmodified, as sold by Apple and is a genuine copy. No problem there either.
You can perform the same feat yourself, creating a hackintosh. Psystar just puts it all in one box for you.
The only question then left is it OK for Apple to place the term “Apple branded Hardware” in it’s license agreement to force sale of a Mac even though generic replacements exist.
Generally anyone who makes that kind of argument loses. To win there would have to be something unique about Apple’s designs, owned and protected by Apple that OS X required to run. Then a cloner would be in breach of copyright or Apple patents by cloning it. Today Macs are generic PCs with a different but standardized BIOS, so with respect to the hardware, Apple can’t point to a single thing that Psystar is infringing on by sourcing and selling technically equivalent hardware.
There’s a simple solution for Apple.
Free OS upgrades to Apple Mac owners. Otherwise OSX costs, oh, maybe a thousand dollars? I don’t think the court can dictate prices. The market is supposed to do that. You certainly couldn’t argue Apple is being monopolistic there. They’re offering their OS in a free market they have a small share of for what they think it’s worth.
Mind you, it’d give Microsoft a lever against Apple. “Most expensive OS” and all that.
IANAL but here’s what it looks like:
Psystar’s copyright and trademark violations are clear. Psystar loses.
Convincing the legal system that a software licensing agreement is a non-enforceable concept. Extremely difficult. Many other software companies including the largest have a stake in that one.
Proving that Apple is harming consumers and competition by only allowing its software to be installed in its hardware is next to impossible. Psystar loses.
My guess is Apple will settle and shut them up and down.
Wait and see.
@licensee:
Excuse me, but that’s not what Psystar is doing. They have even acknowledged that one cannot use the provided unmodified Mac OS X copy for re-installation.
I have read the recipes for all the Hackintoshes, Os86s and whatever, and none is simply getting hardware and putting in the install disk. The only one that does not involve modifying Mac OS X requires an up and running Mac OS X, i.e. a Mac.
“Psystar’s copyright “
Exactly what aspect of apple’s copyright has been violated? A legal copy has been purchased. There is no copyright violation here.
“trademark violations”
A better argument. But that won’t change the legality of Mac clones, only the legality of how Psystar may have advertised them.
“Convincing the legal system that a software licensing agreement is a non-enforceable concept.”
No one doubts that such agreements are enforceable, but it is extremely common for courts to refuse to enforce specific terms of them.
“Proving that Apple is harming consumers and competition by only allowing its software to be installed in its hardware is next to impossible”
Actually it’s an easy argument. Psystar sells cheaper compatible systems. The fact that anyone buys a Psystar system shows that there is demand for such systems. Consumers are benefitted to the degree that the system is cheaper. By shutting down Psystar, any customer who would have purchased such a system his harmed. So the only discussion left is the degree of the harm.
Taking a wider view, This board is rife with comments about the superiority of Mac OS X. You can’t go a day without someone stating how much better off individuals and companies would be to switch to Mac OS X and the TCO advantages of doing so. Apple touts that daily. As a Mac is just a standard Windows PC now (albeit an upmarket one), that benefit must flow from the OS. Therefore one could argue that consumers are significantly harmed by allowing Apple to keep the OS proprietary rather then it being usable by other vendors as a viable alternative to Microsoft’s products. You can bet in their labs every major PC vendor has at least investigated how to produce their own hackintosh. Heck, if it’s as great an advance as people say, the current harm to consumers is incalculable. Apple runs the risk that a court could order them to spilt the hardware and OS businesses.
How could this be different?
If Psystar were not paying for the licenses there would be an open and shut case for copyright violation.
If there was something unique about the basic Mac design (And I’m talking the internals, not the industrial design or less tangible things like quality, support etc) that meant that Psystar were infringing on some Apple owned IP, then it would be a much simpler case. But there is not.
So it all comes down to that question, is it reasonable for a vendor of an operating system which will run unchanged on generic PCs to try to force consumers to run it on only their branded hardware?
Who owns Mac OS X and the rights to its use?
“Who owns Mac OS X and the rights to its use?”
With respect to the rights to it’s use. You do, once Apple sells you a license.
“You do, once Apple sells you a license.”
Obviously, that’s subject to interpretation.
So, now we’re back to it’s a matter for the courts to decide.
Wasn’t the Playstation emulator for the Mac shut down because of trademark and licensing infringement?
Your turn.
“Obviously, that’s subject to interpretation.”
No it’s not subject to any interpretation. A license to use something which didn’t give you the right to use it would be a nonsense.
What is subject to debate is what other terms Apple can reasonably include in that license.
Apple sold Psystar valid licenses for Mac OS X and Psystar on-sold them to customers. What Psystar is asking a court to decide is whether one term in that license is reasonable and legal and therefore enforceable. Not surprisingly Psystar says that term is unreasonable and anti-competitive and shouldn’t be enforced. Unsurprisingly Apple says the opposite.
Courts strike unreasonable terms from EULAs and other contracts all the time, so what Psystar is asking for is certainly not something new.
Any other arguments Apple are making with respect to trademarks infringement and so on refer only to the way Psystar operated, not the ultimate legality of using Mac OS X on non Apple branded hardware. Potentially Apple could win on some of those claims but still have lost on the one that really matters.
There are good arguments for both sides which means that this case isn’t a slam dunk for either Psystar or Apple.
“Wasn’t the Playstation emulator for the Mac shut down because of trademark and licensing infringement?”
Probably the biggest difference here is that Apple sells Mac OS X licenses in a separate box to anyone with $129 in their pocket.
I’m not aware of Sony selling any licenses to use Playstation code as a separate item.
That’s a huge difference.
“No it’s not subject to any interpretation.”
Now you’re just being an ass. If it wasn’t up to interpretation it wouldn’t be going to court.
Asshat.