Linked by Thom Holwerda on Wed 27th Aug 2008 22:21 UTC, submitted by tzineos
Legal Mac clone maker Psystar plans to file its answer to Apple's copyright infringement lawsuit Tuesday as well as a countersuit of its own, alleging that Apple engages in anticompetitive business practices. Miami-based Psystar, owned by Rudy Pedraza, will sue Apple under two federal laws designed to discourage monopolies and cartels, the Sherman Antitrust Act and the Clayton Antitrust Act, saying Apple's tying of the Mac OS to Apple-labeled hardware is "an anticompetitive restrain of trade", according to attorney Colby Springer of antitrust specialists Carr & Ferrell. Psystar is requesting that the court find Apple's EULA void, and is asking for unspecified damages. Psystar's attorneys are calling Apple's allegations of Psystar's copyright infringement "misinformed and mischaracterized". Psystar argues that its OpenComputer product is shipped with a fully licensed, unmodified copy of Mac OS X, and that the company has simply "leveraged open source-licensed code including Apple's OS" to enable a PC to run the Mac operating system.
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litigation funded by ...
by goffster on Wed 27th Aug 2008 22:23 UTC
goffster
Member since:
2007-11-24

Selling mac clones. ;)

Reply Score: 2

RE: litigation funded by ...
by Adurbe on Thu 28th Aug 2008 15:43 UTC in reply to "litigation funded by ..."
Adurbe Member since:
2005-07-06

clones bought by a few hobbyists

no buisiness would touch them with a barge pole!!!! (lets be honest, thats where the big money is)

apple need only wait and what little money they have will dry up...

Edited 2008-08-28 15:44 UTC

Reply Score: 2

RE[2]: litigation funded by ...
by zombie process on Fri 29th Aug 2008 14:44 UTC in reply to "RE: litigation funded by ..."
zombie process Member since:
2005-07-08

Isn't this the same argument made about Mac versus Windows in business?

Reply Score: 2

Broader issue ...
by WorknMan on Wed 27th Aug 2008 22:37 UTC
WorknMan
Member since:
2005-11-13

I think this will set a precedent on a much broader issue -- if a company sells you a piece of software, do they have a right to dictate to you on what hardware you can run it on? In other words, if I sell you a piece of accounting software I wrote myself, do I then have a right to tell you that you can only run it on a computer that I built, even though it is perfectly capable of running on a PC that was built by a competitor down the street?

Discuss ;)

Reply Score: 5

RE: Broader issue ...
by lemur2 on Thu 28th Aug 2008 00:50 UTC in reply to "Broader issue ..."
lemur2 Member since:
2007-02-17

I think this will set a precedent on a much broader issue -- if a company sells you a piece of software, do they have a right to dictate to you on what hardware you can run it on? In other words, if I sell you a piece of accounting software I wrote myself, do I then have a right to tell you that you can only run it on a computer that I built, even though it is perfectly capable of running on a PC that was built by a competitor down the street? Discuss ;)


"Product tying" typically seems to be illegal only for products that are unrelated.

http://en.wikipedia.org/wiki/Product_tying
"Tying is the practice of making the sale of one good (the tying good) to the de facto or de jure customer conditional on the purchase of a second distinctive good (the tied good). It is often illegal when the products are not naturally related"

Mac software is hardly unrelated to the computer it runs on.

Reply Score: 2

RE[2]: Broader issue ...
by flanque on Thu 28th Aug 2008 01:02 UTC in reply to "RE: Broader issue ..."
flanque Member since:
2005-12-15

Depends on how you look at it.

If you consider the fact that's made by Apple and apparently only can run on Apple hardware, then sure they're related.

If you consider that it is quite capable of running on non-Apple hardware, which it is, then it is unrelated.

The depedency of MacOS to run only on Mac hardware is an artificial limitation Apple has put in place to secure control and restrict competition of against their hardware.

I fully support this case against Apple.

Reply Score: 9

v RE[3]: Broader issue ...
by tyrione on Thu 28th Aug 2008 04:00 UTC in reply to "RE[2]: Broader issue ..."
RE[4]: Broader issue ...
by flanque on Thu 28th Aug 2008 05:24 UTC in reply to "RE[3]: Broader issue ..."
flanque Member since:
2005-12-15

Yeah, you're making no sense.

Reply Score: 6

RE[4]: Broader issue ...
by kramii on Thu 28th Aug 2008 08:45 UTC in reply to "RE[3]: Broader issue ..."
kramii Member since:
2005-07-22

You first...

Reply Score: 1

RE[5]: Broader issue ...
by memson on Thu 28th Aug 2008 08:53 UTC in reply to "RE[4]: Broader issue ..."
memson Member since:
2006-01-01

I *think* he already did/does. The guy is ex-Next/current Apple and works in the OS X division IIRC.

Reply Score: 2

RE[6]: Broader issue ...
by rockwell on Thu 28th Aug 2008 21:08 UTC in reply to "RE[5]: Broader issue ..."
rockwell Member since:
2005-09-13

So he, himself, wrote OS X? Wow.

Reply Score: 2

RE[3]: Broader issue ...
by Wrawrat on Thu 28th Aug 2008 04:34 UTC in reply to "RE[2]: Broader issue ..."
Wrawrat Member since:
2005-06-30

If you consider that it is quite capable of running on non-Apple hardware, which it is, then it is unrelated.


With some work and a bit of patience, every piece of software can be adapted to run on any hardware...

However, I believe that software and hardware can be tied together to become a tightly integrated solution, which is what Apple is claiming.

The end user should be able to do whatever he wants with his purchases, be it running MacOS on different hardware or a different OS on Mac hardware. However, Psystar is not an end user, but a reseller. I'm no law expert, but I wouldn't be surprised if the laws are more strict for them.

Honestly, they could have avoided all that mess by simply shipping the computer without the OS preinstalled...

Reply Score: 4

RE[4]: Broader issue ...
by VistaUser on Thu 28th Aug 2008 13:13 UTC in reply to "RE[3]: Broader issue ..."
VistaUser Member since:
2008-03-08


However, I believe that software and hardware can be tied together to become a tightly integrated solution, which is what Apple is claiming.


Not really as integrated a solution when the software is also sold separately as an upgrade for previous "integrated solutions".

Not a lawyer and I have no idea what the outcome would be, but logically speaking (which generally does not align with law ;) ), IMO if a person has purchased/installed/preinstalled, software on hardware it was not designed for, all that should happen is that Apple should no longer have to provide support for the solution.

If Apple are worried about clones hitting their bottom lines, all they need to do is create an OEM version of OSX that has requirements such as quality and other things and a price that matches their normal profit/markup. It does not have to be "competitively priced" as they are not going after the Windows crowd in the same way.

Reply Score: 2

RE[3]: Broader issue ...
by memson on Thu 28th Aug 2008 08:47 UTC in reply to "RE[2]: Broader issue ..."
memson Member since:
2006-01-01

If you bought a bluray disk and attempted to play it in a HDDVD drive that was hacked and vaguly capable of playing back bluray, more power to you. If I sold you a hacked HD-DVD played and told you, "yeah, this is a bluray played", who would you then blame when it failed to work properly? Me, obviously. But I'm a small fly by night operator that goes out of business and then dissappears from the radar. Who then? Apple? Probably. *This* is the crux of the issue.

Asking for it to be acceptable to hack generic hardware, should not be illegal. Selling hardware hacked for the purpose of running Mac OS X without Apple's approval? Whole different thing. As an individual, you know you are doing something technically challenging and that it might one day break. To pass such a product off to an end user - that is just an extremely cavalier and dangerous idea.

I hope Apple wins. I hope it also opens Apple to licensing the OS. But using the backdoor is NOT a good idead and not a business practice Apple sould stand by and let happen unchallenged.

Reply Score: 0

RE[4]: Broader issue ...
by Temcat on Thu 28th Aug 2008 10:31 UTC in reply to "RE[3]: Broader issue ..."
Temcat Member since:
2005-10-18

Selling hardware hacked for the purpose of running Mac OS X without Apple's approval?

I should not need anybody's approval to run whatever I bought on whatever I bought. Period. The artificial limitation Apple tries to enforce doesn't make any sense with any pair of physical products used together, yet somehow many people think it makes sense with hardware and software.

Reply Score: 8

RE[2]: Broader issue ...
by tweakedenigma on Thu 28th Aug 2008 02:53 UTC in reply to "RE: Broader issue ..."
tweakedenigma Member since:
2006-12-27

Although I see your point, you took it from the general meaning of Tying. the part you really want is the section on tying in the US.

Certain tying arrangements are illegal in the United States under both the Sherman Antitrust Act,[1], and Section 3 of the Clayton Act.[2] A tying arrangement is defined as "an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees he will not purchase the product from any other supplier."[3] Tying may be the action of several companies as well as the work of just one firm. Success on a tying claim typically requires proof of four elements: (1) two separate products or services are involved; (2) the purchase of the tying product is conditioned on the additional purchase of the tied product; (3) the seller has sufficient market power in the market for the tying product; (4) a not insubstantial amount of interstate commerce in the tied product market is affected.[4]

In this case I would say that apple is in fact breaking the law, and the EULA should be found void.

Reply Score: 7

v RE: Broader issue ...
by NathanHill on Thu 28th Aug 2008 03:16 UTC in reply to "Broader issue ..."
RE[2]: Broader issue ...
by alcibiades on Thu 28th Aug 2008 05:41 UTC in reply to "RE: Broader issue ..."
alcibiades Member since:
2005-10-12

Yes, this is correct. If you can overcome the technical difficulties, there are going to be no contractual difficulties. Any contract forbidding you to do it is not going to be enforceable. Don't violate copyright, by making unauthorized copies, though you will be able to make as many as are necessary for the installation, and you'll be fine.

Reply Score: 5

RE[3]: Broader issue ...
by Thom_Holwerda on Thu 28th Aug 2008 09:51 UTC in reply to "RE[2]: Broader issue ..."
Thom_Holwerda Member since:
2005-06-29

Yes, this is correct. If you can overcome the technical difficulties, there are going to be no contractual difficulties. Any contract forbidding you to do it is not going to be enforceable. Don't violate copyright, by making unauthorized copies, though you will be able to make as many as are necessary for the installation, and you'll be fine.


It of course depends on your area of jurisdiction. As I showed here [1], in The Netherlands, Apple's EULA is most likely perfectly enforceable. Of course I can't speak for the United States, but it would be nice if someone wrote a similar article to what I did about the Apple EULA in the US.

Shouldn't be too difficult to do. Who's willing to step up?

[1] http://www.osnews.com/story/19682/The_Legality_of_EULAs_in_The_Neth...

Edited 2008-08-28 09:52 UTC

Reply Score: 1

RE[4]: Broader issue ...
by Wondercool on Thu 28th Aug 2008 16:13 UTC in reply to "RE[3]: Broader issue ..."
Wondercool Member since:
2005-07-08

Not sure about that Thom, It could be violating other laws like the Mededingings Wet (Competition Law)

Here is a Dutch link to Wikipedia, it's similar to product tying in USA.

http://nl.wikipedia.org/wiki/Koppelverkoop

Reply Score: 2

RE[5]: Broader issue ...
by alcibiades on Thu 28th Aug 2008 20:15 UTC in reply to "RE[4]: Broader issue ..."
alcibiades Member since:
2005-10-12

You have to consider EC competition law as well. Post sale restraints on use, and coercive linked sales, are both a no-no.

Reply Score: 2

RE[2]: Broader issue ...
by Thom_Holwerda on Thu 28th Aug 2008 10:09 UTC in reply to "RE: Broader issue ..."
Thom_Holwerda Member since:
2005-06-29

So, if this is true, it means that I can go buy a copy of a PC game and make it run on my PowerPC Mac, right? Cause, a software company cannot restrict what hardware the software runs on, right? Wrong.


Err, you are perfectly free to do that. You are perfectly free to buy an Intel game, and make it run on a PowerPC Mac, using virtualisation or whatever. Heck, some companies even make a decent living out of that stuff, such as Codeweaver. They make Windows games run on Linux, and thee has never been a single game company who cried foul over that one.

The same even goes for game consoles. A common "argument" that I've been reading today on Apple websites is that if Apple loses this case, console makers should also make it possible to cross-play games on different consoles.

It's a stupid argument because in fact, there is nothing stopping you from doing so. If you buy an XBox 360 game, and you can make it run on a PS3, then more power to you, nobody is going to stop you. It's most likely impossible, but if you can write an emulator that plays XBox 360 games on a PS3, and you sell that emulator, go ahead. Heck, you can even re-sell games with the emulator included!

The same with phones. The Apple people also say that this also means that phone operating systems should be able to run on other systems. Well, again: go ahead! Be my guest! Make an image out of your phone, and install and run it on your vibrator for all I care - you are perfectly allowed to do so.

It will be nigh-on impossible, but it's not illegal in any way.

A lot of ridiculous comparisons are being drawn in this debate, and it's sickening, especially since people actually seem to believe this crap. People have been so indoctrinated by Apple and other companies, conditioned into believing that they can only use the software in a way that they, the companies, deem fit. However, in you own home, you are allowed to do whatever the frak you want with software, including running it on vibrators and electric toothbrushes. Reselling is also okay, as long as you didn't make any modifications.

People, you have RIGHTS. USE those for frak's sake.

In The Netherlands, it is LEGAL to download music, movies, and other stuff, even if you don't own it, because a levy is being charged on empty media. This is the right of every consumer in The Netherlands. I also have the right to do with software in my own home as I please. And I will do so.

If that includes installing my legally purchased copy of Mac OS X Leopard on an electric feebledwindleretaatushynkioareo-o-mat, than so be it.

Edited 2008-08-28 10:15 UTC

Reply Score: 11

v RE[3]: Broader issue ...
by NathanHill on Thu 28th Aug 2008 12:43 UTC in reply to "RE[2]: Broader issue ..."
RE[2]: Broader issue ...
by Bully on Thu 28th Aug 2008 14:16 UTC in reply to "RE: Broader issue ..."
Bully Member since:
2006-04-07


So, if this is true, it means that I can go buy a copy of a PC game and make it run on my PowerPC Mac, right? Cause, a software company cannot restrict what hardware the software runs on, right? Wrong.


What do you mean 'wrong'?
Ofcourse you can do that. Do you think the game creators would mind if you run their game through an emulator or what ever way you wanted to run it in different hardware?
Ofcourse not, as long as you bought their game they are happy as a clam.

Reply Score: 3

RE[3]: Broader issue ...
by macUser on Thu 28th Aug 2008 15:47 UTC in reply to "RE[2]: Broader issue ..."
macUser Member since:
2006-12-15


So, if this is true, it means that I can go buy a copy of a PC game and make it run on my PowerPC Mac, right? Cause, a software company cannot restrict what hardware the software runs on, right? Wrong.

What do you mean 'wrong'?
Ofcourse you can do that. Do you think the game creators would mind if you run their game through an emulator or what ever way you wanted to run it in different hardware?
Ofcourse not, as long as you bought their game they are happy as a clam.

But aren't they restricting the hardware I can install it on by not supporting my specific hardware?

Edited 2008-08-28 15:48 UTC

Reply Score: 1

RE[4]: Broader issue ...
by Alex Vancina on Thu 28th Aug 2008 16:14 UTC in reply to "RE[3]: Broader issue ..."
Alex Vancina Member since:
2006-09-24

But aren't they restricting the hardware I can install it on by not supporting my specific hardware?


No, the game developer is not required to support your hardware. However, if some third-part comes along and provides you with an emulator that you can use to run the game on some hardware that's not officially supported, then the developer can't tell you that you're not allowed to do so.

No one is saying that Apple should be required to support Psystar's computers. Heck, no one's even saying that Apple can't make it difficult to run their software on non-Apple hardware. However, since Psystar has undertaken the development and support of their own Apple-compatible hardware, Apple has no legal grounds for saying that Psystar can't install a legitimately purchased copy of OS X on it.

Reply Score: 4

RE[5]: Broader issue ...
by MattPie on Thu 28th Aug 2008 16:33 UTC in reply to "RE[4]: Broader issue ..."
MattPie Member since:
2006-04-18

Apple has no legal grounds for saying that Psystar can't install a legitimately purchased copy of OS X on it.

That's the rub, I don't think Psystar *can* legitimately purchase copies of the software from Apple to re-sell. If they made you buy OSX and sent it to them to install, they're selling a service; that's OK. If they send you a a computer and a loader disk that requires a copy of OSX that you purchase, also OK. They cannot* sell you a copy of OSX installed on the machine themselves, since Apple isn't selling them redistributable copies.

* This gets back to EULA law. Is it legal for a company (or person) to re-sell anything, or can the original selling company limit re-selling of its products? An individual has fair-use rights and whatnot that cover them, but I'm not sure a company has the same fair-use rights, or that re-selling is fair-use.

Edited 2008-08-28 16:35 UTC

Reply Score: 1

RE[6]: Broader issue ...
by tupp on Sat 30th Aug 2008 01:10 UTC in reply to "RE[5]: Broader issue ..."
tupp Member since:
2006-11-12

I don't think Psystar *can* legitimately purchase copies of the software from Apple to re-sell.

The buyer's intention has nothing to do with whether or not a purchase is legitimate. If Psystar buys 1000 copies of OSX from Amazon.com, then that is a legitimate transaction.


They cannot* sell you a copy of OSX installed on the machine themselves, since Apple isn't selling them redistributable copies.

Any entity (person, company, government, school, space alien, etc.) can resell any property that the entity has purchased (with certain restrictions on hazardous items). Whatever the original seller thinks or feels does not matter.

In addition, it doesn't matter if the software is installed onto a machine --- the property purchased and resold (OSX software) is still the same property, regardless. I would guess that one buying a Psystar machine also receives the official, boxed copy, along with the machine.

However, if Psystar bought one copy of OSX and installed that single copy onto multiple machines (without including a separately purchased copy with each machine), then they would be breaking copyright law, which can be prosecuted as a criminal offense. It doesn't appear that Psystar is committing this crime.

Reply Score: 2

RE[5]: Broader issue ...
by macUser on Thu 28th Aug 2008 18:27 UTC in reply to "RE[4]: Broader issue ..."
macUser Member since:
2006-12-15

"But aren't they restricting the hardware I can install it on by not supporting my specific hardware?


No, the game developer is not required to support your hardware. However, if some third-part comes along and provides you with an emulator that you can use to run the game on some hardware that's not officially supported, then the developer can't tell you that you're not allowed to do so.

No one is saying that Apple should be required to support Psystar's computers. Heck, no one's even saying that Apple can't make it difficult to run their software on non-Apple hardware. However, since Psystar has undertaken the development and support of their own Apple-compatible hardware, Apple has no legal grounds for saying that Psystar can't install a legitimately purchased copy of OS X on it.
"

Okay, I can understand this being true for Joe User at home, but it's a little more difficult to swallow to say that a company can hack the OS (they do have the OS go to them for software updates) and then resell it on their hardware. That's like me throwing a chevy engine in a Lexus and selling it to the masses at a reduced price (not that it would be possible to buy a new lexus without an engine).

Also, I was under the impression that Pystar is using the Netkas bootloader without permission. So I fail to see how Pystar has really developed anything.

What we have is a company taking products without consent and using them for financial gain. If you're going to argue that Apple does the same, they meet the license agreements of the open source projects they use. And if the EULA doesn't hold water then neither do the various open source licenses like the GPL.

I do think that the "buyer beware" argument is a load of crap, because when things do break, Apple will be blamed, not Pystar.

It'll be a interesting battle, but I don't think Pystar is going to come out in this one. A victory for Pystar basically forces Apple to take up the MS business strategy and I don't think that's necessarily a good thing.

Reply Score: 1

RE[4]: Broader issue ...
by fretinator on Thu 28th Aug 2008 16:18 UTC in reply to "RE[3]: Broader issue ..."
fretinator Member since:
2005-07-06

But aren't they restricting the hardware I can install it on by not supporting my specific hardware?


Doh! So if I go buy a game, and then try to run it on my 286 and it doesn't work, then they are "restricting" me from running it on my hardware? Give me a break! All software is designed for some target specifications, which may or may not fit the particular machine you are using. It is up to you to get it to run on machines that do not fit the target specifications.

Back to the topic, the situation with Apple is different. Their software may run very well on my machine, but Apple is specifically saying I cannot run it on anything but their hardware. I think that is a grave error that will soon be corrected.

Reply Score: 7

RE[5]: Broader issue ...
by macUser on Thu 28th Aug 2008 18:42 UTC in reply to "RE[4]: Broader issue ..."
macUser Member since:
2006-12-15

" But aren't they restricting the hardware I can install it on by not supporting my specific hardware?


Doh! So if I go buy a game, and then try to run it on my 286 and it doesn't work, then they are "restricting" me from running it on my hardware? Give me a break! All software is designed for some target specifications, which may or may not fit the particular machine you are using. It is up to you to get it to run on machines that do not fit the target specifications.
"

Albeit the situation is extreme, its not really that far of a reach in logic. Why shouldn't they be required to support legacy hardware and alternate platforms? I mean, saying that companies can alter and resell your product under their brand sounds just as ludicrous to me.

Pystar isn't a person, they're a company. Apple hasn't gone after the Hacintosh community, (ie individuals hacking their own hardware to run MOSX), they've gone after a company making monetary gain off of their IP.

Reply Score: 1

RE[5]: Broader issue ...
by alcibiades on Thu 28th Aug 2008 20:22 UTC in reply to "RE[4]: Broader issue ..."
alcibiades Member since:
2005-10-12

Yes this is correct. The issue is not whether the software will technically run on some hardware. The issue is whether the vendor of the software can, solely by contractual agreement entered into as a condition of purchase, prevent a buyer from installing on some hardware.

It is not about, can they make the hardware and software incompatible. It is about, if you can do it technically, can they stop you solely by a sales agreement? My contention (and Thom differs on this one in the case of the Netherlands) is that such a contract will not be enforceable. If they sue you, they will not win. This is because they will be trying to enforce a post sales restraint on use, and EC competition law doesn't allow this.

Reply Score: 3

RE: Broader issue ...
by looncraz on Thu 28th Aug 2008 03:29 UTC in reply to "Broader issue ..."
looncraz Member since:
2005-07-24

U.S. law clearly and directly permits modification of software or hardware for compatibility, generally regardless of surrounding circumstances.

For instance, I am LEGALLY permitted to go buy a copy of MacOS X, hack it, and install it on *ANY* machine I so desire. The EULA cannot prevent this right, even if it claims to do so it must also abide by all laws within the jurisdiction of use.

In other words, if I have a Windows 3.11 application and I want to run it on Windows Vista, I am legally allowed to make WHATEVER modification to ANYTHING & EVERYTHING that I must in the name of compatibility. I also have ownership of said modifications.

I may also, freely, reverse-engineer an API, file format, encryption routine, ROM, or whatever else in the name of compatibility.

And, considering this is all Psystar has done ( reverse engineered the ROM on a Mac for compatibility on a normal PC ), they are legally protected. The only things Apple's case could possibly stand upon are as follows:

1. Illegal Software Redistribution

If Psystar does not have a reseller's license, they are probably in the clear - provided they purchased them freely.. transfer of ownership is protected by law.

If they DO have a reseller's license, they made a mistake - the license may prohibit pre-installations on non-Apple hardware.

2. Copyright infringement

This would require proof that Psystar largely copied the ROM used for compatibility.

3. Trademark infringement

Usage of the Apple logo, placement of a 'Design for MacOS' logo, or usage of 'MacOS' in advertising ( here, they are likely "guilty" ).

All in all, I believe this will be a good (cheap) advertising campaign for Psystar. Apple will probably fail in most of their case (as I have seen it portrayed, anyway). Psystar will need to change a few words in their adverts, and move on making bank. Naturally, Psystar will fight to prevent those word changes. Lawyers are cheaper than advertising firms, fear of the machines no longer being available could cause a flood of orders as well as a big win for Psystar.

Apple will almost certainly attempt an injunction, I hope the judge is smart enough to realize that Apple's case has no weight behind it in that regard, or else provides a nice 90-day compliance period... which could be a boon for Psystar.. especially once the injunction is lifted.

Oh well, much fun ahead!

--The loon

Reply Score: 9

RE[2]: Broader issue ...
by Wrawrat on Thu 28th Aug 2008 04:39 UTC in reply to "RE: Broader issue ..."
Wrawrat Member since:
2005-06-30

I may also, freely, reverse-engineer an API, file format, encryption routine, ROM, or whatever else in the name of compatibility.


Not sure about the encryption part. The DMCA is pretty stiff about anything that breaks protection.

Reply Score: 2

RE[2]: Broader issue ...
by rajan r on Thu 28th Aug 2008 17:26 UTC in reply to "RE: Broader issue ..."
rajan r Member since:
2005-07-27

Why do non-lawyers act like lawyers? A real lawyer will had at least heard of DMCA. As for contract, a real lawyer may understand it is a grey area for EULAs in general, but only because on the count of formation of contract - and not because of the onerous terms. But since Pystar clearly knows about the EULA, they cannot feign ignorance and claim the terms are not included in the contract.

And since the EULA will almost entirely likely be upheld in this case, that's a violation of copyright at that because the contract regulates the distribution of copyrighted material.

Pystar lawyers advise well: that's why they're counter-suing under antitrust laws - what constitutes as anti-competitive is overwhelmingly vague, if a judge sympathize with Pystar and see OS X-Mac as illegal bundling, the rest don't matter.

Reply Score: 0

Comment by ari-free
by ari-free on Wed 27th Aug 2008 22:44 UTC
ari-free
Member since:
2007-01-22

these guys knew they had to fight if they wanted to make a mac clone and they are doing it. Bravo.

Reply Score: 9

Interesting Defense...
by darknexus on Wed 27th Aug 2008 22:57 UTC
darknexus
Member since:
2008-07-15

But I have to wonder if this stance will hold up. The way I see it, there's two opposing angles you can look at this issue:
1. Apple is selling you software and dictating what hardware you can run it on. If this is how the court see it, then Psystar's defense may actually have a chance, depending on how the courts view that clause of Apple's EULA.
2. Apple is selling you a device and operating system, in a complete package. In this case I don't see Psystar's defense holding out. An equivalent example would be if I bought an iPod Touch (no, I don't actually have one, but it's a good example). Apple sold the 2.0 firmware for a modest cost. Now, I'm sure that said firmware is only to be run on an iPod Touch, or possibly an iPhone. That being said, if someone just happened to have a device that they could hack the firmware to run it on, could that company turn around and counter-sue Apple for anti-competitive practices? I don't think so, and if one looks at the case from this angle, I doubt Psystar will have a chance.
I don't know what the ultimate decision will be, I'm certainly no lawyer. Whatever the final outcome is, there's no doubt it will set a legal precedent in the states for similar issues. Personally, I'm hoping for case #1, but being a realist I think it's more likely the court will eventually take #2.

Reply Score: 1

RE: Interesting Defense...
by alcibiades on Wed 27th Aug 2008 23:23 UTC in reply to "Interesting Defense..."
alcibiades Member since:
2005-10-12

Problem is, it sells retail copies of OSX. So what system can this be part of, that is allegedly sold as a complete system?

Reply Score: 6

RE[2]: Interesting Defense...
by darknexus on Thu 28th Aug 2008 02:24 UTC in reply to "RE: Interesting Defense..."
darknexus Member since:
2008-07-15

Problem is, it sells retail copies of OSX. So what system can this be part of, that is allegedly sold as a complete system?

Macs are sold as complete packages. You buy a Mac, you get the current version of OS X with it. The retail versions of OS X are intended to be upgrades, to be installed on your Macs. I'm not saying that it *should* be viewed that way, I was just pointing out that this is one way it could be looked at.

Reply Score: 1

RE: Interesting Defense...
by flanque on Thu 28th Aug 2008 01:05 UTC in reply to "Interesting Defense..."
flanque Member since:
2005-12-15

Except they sell retail versions and upgrades.

Unless of coarse I've been missing the complimentary hardware stored out the back for every OS sale.

Reply Score: 4

RE[2]: Interesting Defense...
by darknexus on Thu 28th Aug 2008 02:29 UTC in reply to "RE: Interesting Defense..."
darknexus Member since:
2008-07-15

Except they sell retail versions and upgrades.

Unless of coarse I've been missing the complimentary hardware stored out the back for every OS sale.

In Apple's case, retail versions of OS X and upgrades are one in the same. That is the intent of the retail versions, to allow you to upgrade to the latest OS version, either by upgrading your already-installed OS, or by doing a fresh install. Either way, you've upgraded, at least in Apple's eyes.

Reply Score: 1

RE[3]: Interesting Defense...
by looncraz on Thu 28th Aug 2008 03:55 UTC in reply to "RE[2]: Interesting Defense..."
looncraz Member since:
2005-07-24

Thankfully, it doesn't matter what Apple thinks.

If a car company sells you a car which requires a specific BRAND of, say, oil, then that car company is LEGALLY REQUIRED to provide that fluid to you at NO COST.

The same law also applies here, Apple is FORBIDDEN from requiring you to have a specific BRAND of hardware to run their software... even if that software is only available with the hardware.

They CAN make it as hard as they want, within limits, for you to use the software on other brands, but they have no legal authority with which to prohibit said usage.

Furthermore, U.S. law directly permits all modifications, reverse-engineering, and what-have-you for the sake of compatibility. Be that software-on-hardware compatibility, or software-on-software compatibility.. or even hardware-on-hardware compatibility. You can clone technologies VERY legally, provided you do not engage in copyright infringement or violate trademark laws.

Your clone is YOUR property, to with as you will, under the law ( naturally ).

Basically: when Apple says you NEED an Apple-Branded computer of certain specifications, and they provide that software to you, they should be giving you the hardware to run the OS ( FREE ). Because they DO NOT, then they must allow the OS to run on other machines, though they HAVE NO REQUIREMENT to support that configuration - the software doesn't have a warranty anyway - except in tech support - which they would have no further obligation to provide ( other than maybe on a best-effort basis, which would be by their good graces only ).

--The loon

Edited 2008-08-28 03:57 UTC

Reply Score: 7

RE[4]: Interesting Defense...
by flanque on Thu 28th Aug 2008 04:04 UTC in reply to "RE[3]: Interesting Defense..."
flanque Member since:
2005-12-15

You can clone technologies VERY legally, provided you do not engage in copyright infringement or violate trademark laws.

Your clone is YOUR property, to with as you will, under the law ( naturally ).


Perhaps, but there's a difference between justice prevailing and the law. We've seen this before with bleem vs Sony. The bleem product contained no Playstation BIOS code at all and was entirely reverse engineered, yet they failed to beat Sony due to funding.

Reply Score: 3

RE[5]: Interesting Defense...
by wakeupneo on Thu 28th Aug 2008 08:21 UTC in reply to "RE[4]: Interesting Defense..."
wakeupneo Member since:
2005-07-06

We've seen this before with bleem vs Sony. The bleem product contained no Playstation BIOS code at all and was entirely reverse engineered, yet they failed to beat Sony due to funding.


...but they did win the case. That's the important precedent we're dealing with here.

Reply Score: 2

v RE[4]: Interesting Defense...
by macUser on Thu 28th Aug 2008 04:08 UTC in reply to "RE[3]: Interesting Defense..."
RE[5]: Interesting Defense...
by alcibiades on Thu 28th Aug 2008 05:45 UTC in reply to "RE[4]: Interesting Defense..."
alcibiades Member since:
2005-10-12

Of course he is not saying that. He is saying that they do not have to support it, but cannot merely by contract stop you from installing it. If you really want to install your retail copy of Vista on PPC, go to it. No-one is going to be able to enforce any contract which forbids you to.

Reply Score: 5

RE[5]: Interesting Defense...
by tweakedenigma on Thu 28th Aug 2008 20:43 UTC in reply to "RE[4]: Interesting Defense..."
tweakedenigma Member since:
2006-12-27

Your confusing 2 different things. You can build something with the intent for it be used a certain way but the people you are selling to are not bound to use it in the way you intend.

For example if I by an HP Printer, HP can not require me to by HP ink I can buy it from anyone I like as long as its compatible. That Doesn't mean HP has to make a printer that takes every companies ink cartridges.

Reply Score: 4

RE[4]: Interesting Defense...
by Tuishimi on Thu 28th Aug 2008 06:13 UTC in reply to "RE[3]: Interesting Defense..."
Tuishimi Member since:
2005-07-06

Why can't they say "our product is this hardware that runs this operating system?" Hardware is of little use without an operating system, and an operating system is of little use without the hardware to run it on. Why CAN'T they be part of the same product and exempt from tying?

Reply Score: 1

RE[5]: Interesting Defense...
by alcibiades on Thu 28th Aug 2008 20:26 UTC in reply to "RE[4]: Interesting Defense..."
alcibiades Member since:
2005-10-12

Why CAN'T they be part of the same product and exempt from tying?


They can. But Apple sort of weakened this line of attack when they started selling OSX by itself at retail. Walk up, buy your DVD, walk out. No proof of purchase of Mac needed. No preexisting OS required to use. I can just fire up a machine with a brand new hard drive, and install away. Makes it a bit tough to argue that this is only an upgrade. Or only a part of a system which includes hardware.

Reply Score: 3

RE[6]: Interesting Defense...
by Tuishimi on Thu 28th Aug 2008 23:01 UTC in reply to "RE[5]: Interesting Defense..."
Tuishimi Member since:
2005-07-06

Yes, but they are clear on the packaging that usage is restricted (now how legal that is I don't know, but I am sure their legal department knows their own business - at a minimum it protects them from having to support non-Apple hardware because...):

"Requirements: Mac computer with an Intel, PowerPC G5 or PowerPC G4 ... processor ..."

"Important: Use of this product is subject to acceptance of to the software license agreement[s] included in this package."

I am not going to retype all that legal mumbo jumbo but I am sure you can find it online somewhere.

Reply Score: 2

RE[4]: Interesting Defense...
by Panajev on Thu 28th Aug 2008 10:57 UTC in reply to "RE[3]: Interesting Defense..."
Panajev Member since:
2008-01-09

Thankfully, it doesn't matter what Apple thinks.

If a car company sells you a car which requires a specific BRAND of, say, oil, then that car company is LEGALLY REQUIRED to provide that fluid to you at NO COST.

The same law also applies here, Apple is FORBIDDEN from requiring you to have a specific BRAND of hardware to run their software... even if that software is only available with the hardware.

They CAN make it as hard as they want, within limits, for you to use the software on other brands, but they have no legal authority with which to prohibit said usage.

Furthermore, U.S. law directly permits all modifications, reverse-engineering, and what-have-you for the sake of compatibility. Be that software-on-hardware compatibility, or software-on-software compatibility.. or even hardware-on-hardware compatibility. You can clone technologies VERY legally, provided you do not engage in copyright infringement or violate trademark laws.

Your clone is YOUR property, to with as you will, under the law ( naturally ).

Basically: when Apple says you NEED an Apple-Branded computer of certain specifications, and they provide that software to you, they should be giving you the hardware to run the OS ( FREE ). Because they DO NOT, then they must allow the OS to run on other machines, though they HAVE NO REQUIREMENT to support that configuration - the software doesn't have a warranty anyway - except in tech support - which they would have no further obligation to provide ( other than maybe on a best-effort basis, which would be by their good graces only ).

--The loon


Very good post.

Reply Score: 2

RE[3]: Interesting Defense...
by tyrione on Thu 28th Aug 2008 04:11 UTC in reply to "RE[2]: Interesting Defense..."
tyrione Member since:
2005-11-21

"Except they sell retail versions and upgrades.

Unless of coarse I've been missing the complimentary hardware stored out the back for every OS sale.

In Apple's case, retail versions of OS X and upgrades are one in the same. That is the intent of the retail versions, to allow you to upgrade to the latest OS version, either by upgrading your already-installed OS, or by doing a fresh install. Either way, you've upgraded, at least in Apple's eyes.
"

Wrong. Hardware does not come with a retail copy of OS X. It's specific to the system. Upgrades are through Apple Software Update.

Periodically Apple releases a .x version for Full retail to install on pre-existing Apple Hardware.

They don't offer Retail upgrades.

10.5.1 replaced 10.5 at the retail stores.

http://www.amazon.com/s/ref=nb_ss_gw?url=search-alias%3Daps&fie...

Show me the retail upgrade for 10.5.2, 10.5.3 and 10.5.4.

The last retail update CD Amazon lists was 10.2.5 which works on 10.2-10.2.4 systems.

http://www.amazon.com/Mac-Os-V10-2-5-Update-CD/dp/B00009LI58/ref=sr...

Apple's official last 10.3 and 10.4 versions on Amazon:

http://www.amazon.com/s/ref=nb_ss_gw?url=search-alias%3Daps&fie...

All replaced previous versions on retail shelves. Apple doesn't resell incremental/upgrade versions side by side throughout the lifecyle of their product. It's through Software Update which is designed to run on Apple Hardware.

Microsoft offers Windows XP and side by side offer pre-packaged upgrades on disc that requires an earlier copy of XP to install, legally speaking.

All upgrades for every major release of OS X is targeted through Software Update.

What this will end up doing, besides ending up having Apple win is that Apple will include something in their motherboards to only run OS X and the software will need this to work.

Most likely it will install just fine and upon EFI boot up fail, everytime.

Reply Score: 2

Hmm
by thebackwash on Wed 27th Aug 2008 23:00 UTC
thebackwash
Member since:
2005-07-06

I on the one hand hope Pystar wins, because I don't think you can dictate what types of computers you can install software on, but I think if Pystar wins, Apple might return to its hyper-protectionist ways. I think Pystar might face sanctions for *distributing* computers with software in violation of the EULA, but I'm hoping the judge will uphold the right to install software you bought yourself on your own computer.

Reply Score: 7

RE: Hmm
by Mellin on Wed 27th Aug 2008 23:18 UTC in reply to "Hmm"
Mellin Member since:
2005-07-06

Apple Genuine Advantage ?

Reply Score: 5

v mmmm
by ebasconp on Wed 27th Aug 2008 23:27 UTC
RE: mmmm
by flanque on Thu 28th Aug 2008 01:07 UTC in reply to "mmmm"
flanque Member since:
2005-12-15

They're counter suing. I doubt they'd be doing what they're doing if it were not for Apple starting this.

Reply Score: 6

RE: mmmm
by melkor on Thu 28th Aug 2008 04:09 UTC in reply to "mmmm"
melkor Member since:
2006-12-16

Where have you been the past 20 years? Apple sues the a$$ of a fly - they are the most litiguous bunch of a$$holes in existence. They are a nasty company and they deserve all the ill karma that they get from this. Personally, I think Psystar has a solid case here - no licensing agreement can encourage anti competitive behaviour, and this is exactly what their license does. Imagine if Microsoft's licence say you could only use Windows XP on a Dell? Imagine the uproar! Yet, Apple is allowed to do the same an noone complains. Apple lusers are just blind lovers of a mongrel manufacturer.

Dave

Reply Score: 8

v RE[2]: mmmm
by atsureki on Thu 28th Aug 2008 06:42 UTC in reply to "RE: mmmm"
RE[3]: mmmm
by sc3252 on Thu 28th Aug 2008 07:23 UTC in reply to "RE[2]: mmmm"
sc3252 Member since:
2005-09-06

I thought low margin Items had to have low margins to be considered a low margin item... Windows Vista and any other Microsoft product is not a low margin item, since it retails for much more then it costs to make. Also you are mistaken, Everything that Apple does is wrong, and everything Microsoft does is wrong. There are just lesser degrees to which is worse, and that just happens to be Apple. I guess you don't read OSnews much or you would know that.

Reply Score: 7

RE[4]: mmmm
by melkor on Thu 28th Aug 2008 09:35 UTC in reply to "RE[3]: mmmm"
melkor Member since:
2006-12-16

I would have loved to have modded you up, to counter the rabid Apple fans that will no doubt be modding down anything anti Apple, but alas, having already posted a comment to the story I can't do so. So, you get my moral +1 vote :-0

Dave

Reply Score: 2

RE[3]: mmmm
by melkor on Thu 28th Aug 2008 09:59 UTC in reply to "RE[2]: mmmm"
melkor Member since:
2006-12-16

Yes. Absolutely. Everything Microsoft does is right, and everything Apple does is wrong.


I never said that. Your words - you can eat them.

Microsoft makes its vast sums of money by infesting every computer it can with a low-margin "sale" of its product before the end user has any say in it.


That's not Microsoft's fault, that's the fault of lazy good for nothing capitalistic governments that have idiotically allowed Microsoft to legally be able to do what it does. Microsoft is simply doing, like any successful business I might add, playing by the rules.

Understand this: Microsoft's business model only incidentally includes selling an operating system at retail. They don't make any money on it. Their real business comes from licensing deals with OEMs, which they've grievously abused to the extent that they could get away with, including stipulations that OEMs can't sell any other operating systems, Web browsers, media players, or Java VMs preinstalled on their systems. That's what anticompetitive behavior looks like.


a) see my comment reply directly above
b) Microsoft's OEM license does not forbid you from shipping another browser with Windows. Or another media player. That's just BS on your part. Same with Java VMs.
c) Even if they did, then that would be the entire fault of the US DOJ, and many other government bodies. See point a) above.

What Apple's doing? That's called copyright.


How so? Running OS X on non Apple branded hardware is NOT breaking copyright. I suggest you go and re-read copyright law.

There are exactly two companies making money off a PC operating system right now, and both of them make their money from the hardware sale, not from a boxed software sale.


More BS. The only hardware Microsoft sells is the Xbox (at a loss I might add), and a MP3 player, Zune, which is a dud seller. Microsofts money is made in the OS, Office, and service/support. Get your facts right.

Look at Sun, as well. They decided to sell premium hardware and support and give away their OS for free.


WRONG. If you want to use Solaris commercially, then you have to pay for it. Solaris 10 is ONLY free if used for non commercial use. I suggest you have another look at the EULA that Sun offers with it. If you are referring to OpenSolaris, then you are pretty much correct - the only problem is that Sun ships Solaris, NOT OpenSolaris, with its hardware I'm pretty sure you'll find. For many years, Sun's stance towards Linux was openly hostile, not example a nice community player. Things are better now, but I remember the old days when things were ugly. Unlike you, I don't have a selective memory.

An OS alone doesn't make any money, and generic hardware resellers come and go like the tides because none can offer anything special over the others except a low, low price (and the razor-thin profit margin that accompanies it).


Huh? Not necessarily true, from time to time you do see genuine new ideas shipped by PC hardware manufacturers. Let's bear in mind that for the reasons of conformity, it is best to make sure your hardware follows standards, rather than deviating from the norm. IBM found this out the hard way many years ago.

Apple makes money because they offer a special platform that people want.


How is it special? One can argue that Vista offers something special that people want, or Linux, or BSD and so on, and so forth. Weak argument.

They can make enough to stay healthy and invest so much into R&D because they sell the platform with premium hardware.


Premium hardware? WTF? Nearly all of the parts that go into a Mac are easily available off the shelf...let's consider the dual layer superdrives - get them from Apple and pay a premium, or buy *exactly* the same drive yourself and put it in the Mac yourself and voila - same thing, same performance, cheaper price. Some say that the Sun can blind you if you look too long at it, I think that the Apple logo must have a similar effect on some individuals!


Tear down that system, and you destroy the software everyone's clamoring for.


BS. Total BS. If Psystar is given a fair go by the corrupt US court system, I think you will see that comment disproven.

There's nothing monopolistic or anticompetitive about it. Anyone can do what Apple does; they just can't do it with Apple's stuff. It's theirs. They created it; they own it. Case closed.


Tell you what then - *every* single piece of hardware in a Mac should be designed from the ground up by Apple, not sourced from 3rd party providers (who also provide identical parts to the PC industry I might add). Then you would be correct. As it stands now, you are wrong. And I firmly believe that any EULA restricting what hardware can be used with the operating system in question is illegal. It has nothing to do with copyright, it has everything to do with monopolistic and anti competitive hardware lock in, nothing more, and certainly nothing less.

The courts can no more require that OS X be installable on generic hardware than they can that Intel's graphic chips be seated on removable cards.


Providing the US court system is just (highly unlikely), I think time will prove you wrong. I say this in memory of the SCO vs IBM, and SCO vs Novell cases - dragged out for over 5 years, with NO proof ever having been offered to the courts. In fact, SCO disobeyed the courts on several instances to provide evidence. So much for the US court system...

Just because the bulk of the market does something a certain way doesn't mean everyone must, should, or even can. It takes a perfect storm of backstabbing and good luck ( = the fall of IBM) to get where Microsoft is, and Apple simply can't follow them there. The after-market OS is an impregnable monopoly. No court has the right to force Apple to be more like NeXT, BeOS, and OS/2.


Apple wasn't exactly an innocent either. It stole from Xerox, Microsoft stole from Apple. What comes around, goes around, it's called Karma. Apple's hardware was way overpriced, and the cheaper and more efficient PC clone prevailed. That's market sense for you. Pre OS X, the Apple system was HORRID. OS 9 and below blow, badly. Having worked as a Tier 1 tech for Apple Australia for nearly 18 months, I can honestly say that OS 9 and its ilk were clearly disliked by the vast majority of the support staff, in favour of OS X, which is clearly superior in every way.

Come back when you have decent arguments.

Dave

Edited 2008-08-28 10:07 UTC

Reply Score: 8

RE[4]: mmmm
by helf on Thu 28th Aug 2008 17:09 UTC in reply to "RE[3]: mmmm"
helf Member since:
2005-07-06

I have a MS Mouse and keyboard... and joystick somewhere...

They "make" other things.

Reply Score: 2

RE[4]: mmmm
by atsureki on Thu 28th Aug 2008 18:44 UTC in reply to "RE[3]: mmmm"
atsureki Member since:
2006-03-12

"Understand this: Microsoft's business model only incidentally includes selling an operating system at retail. They don't make any money on it. Their real business comes from licensing deals with OEMs, which they've grievously abused to the extent that they could get away with, including stipulations that OEMs can't sell any other operating systems, Web browsers, media players, or Java VMs preinstalled on their systems. That's what anticompetitive behavior looks like.
"

b) Microsoft's OEM license does not forbid you from shipping another browser with Windows. Or another media player. That's just BS on your part. Same with Java VMs.


I'm talking about history. The '90s. Remember Netscape? Apparently not. My point is that if you think what Apple's doing is anticompetitive, you don't know the meaning of the word, which is apparently because you're not aware of any real anticompetitive behavior that has actually occurred in the real world. And in case the game we're playing here is splitting hairs, then yeah, it was never explicit in the contracts. Microsoft isn't stupid. They simply threatened to increase the price or pull the contract entirely. An OEM without Windows has nothing, and one that has to charge more for the same product is doomed. They were using their monopoly power over the industry as a whole to preempt consumer choice. Apple is doing no such thing. They're competing with hardware and software as a package, and they're doing very well.

Running OS X on non Apple branded hardware is NOT breaking copyright. I suggest you go and re-read copyright law.


Copyright allows an author to control the distribution and use of its works. It's what allows software licenses to exist at all, the GPL being an especially important example. It's copyright law that allows the authors to enforce that the source stay open. Apparently that's a perfectly legal maneuver because we find it convenient.

Psystar is selling an unauthorized derivative work. That's flat illegal.

"There are exactly two companies making money off a PC operating system right now, and both of them make their money from the hardware sale, not from a boxed software sale.


More BS. The only hardware Microsoft sells is the Xbox (at a loss I might add), and a MP3 player, Zune, which is a dud seller. Microsofts money is made in the OS, Office, and service/support. Get your facts right.
"

I didn't say Microsoft is selling the hardware. They know better than anyone that selling PCs with Windows is a sucker's game. The fact I stated is that Microsoft makes its money off the hardware sale. Their income comes from the licensing deal attached to the sale of a new PC, the "hardware." This is known as the "Microsoft tax." It's the source of their income. The practical difference between mean jerk Apple and generous, open Microsoft is that hardware and software come from two different companies on the PC side. There's no reason why that model should be enforced across the industry, and if it were, it would only deepen Microsoft's entrenchment as the sole software provider.

"Apple makes money because they offer a special platform that people want.


How is it special? One can argue that Vista offers something special that people want, or Linux, or BSD and so on, and so forth. Weak argument.
"

It's special because it's the rare computer that doesn't come with Windows. I didn't say that the thing it does come with is magically superior. That was your inference.

"They can make enough to stay healthy and invest so much into R&D because they sell the platform with premium hardware.


Premium hardware? WTF? Nearly all of the parts that go into a Mac are easily available off the shelf...
"

Premium hardware just means not junk. Not what's in a $400 Dell. It also means hardware that actually brings in a profit, again unlike a $400 Dell.

"There's nothing monopolistic or anticompetitive about it. Anyone can do what Apple does; they just can't do it with Apple's stuff. It's theirs. They created it; they own it. Case closed.


Tell you what then - *every* single piece of hardware in a Mac should be designed from the ground up by Apple, not sourced from 3rd party providers (who also provide identical parts to the PC industry I might add). Then you would be correct. As it stands now, you are wrong.
"

The fact that their hardware isn't unique to their systems has nothing to do with their right to sell a closed platform. Like every other computer you can buy, including embedded devices, Macs are designed in America and built in China out of parts anyone can order, and like every other computer you can buy, including embedded devices, there's an insubstantial amount of custom silicon that is not essential to most of its functions and that the software can safely ignore. You can't redistribute pilfered firmware because license and copyright forbid it. Same with OS X, even if Psystar did buy a retail upgrade DVD.

And I firmly believe that any EULA restricting what hardware can be used with the operating system in question is illegal. It has nothing to do with copyright, it has everything to do with monopolistic and anti competitive hardware lock in, nothing more, and certainly nothing less.


Copyright, IP, it all means you don't actually own anything. We at home have fair use on our side should we decide to make a hackintosh, but commercial redistribution doesn't have such protections. It's a violation of copyright to redistribute a work inconsistent with its licensing. Ask a school's choir or band director how stringent copyright requirements can be, and you'll be amazed.

"Just because the bulk of the market does something a certain way doesn't mean everyone must, should, or even can. It takes a perfect storm of backstabbing and good luck ( = the fall of IBM) to get where Microsoft is, and Apple simply can't follow them there. The after-market OS is an impregnable monopoly. No court has the right to force Apple to be more like NeXT, BeOS, and OS/2.


Apple wasn't exactly an innocent either. It stole from Xerox, Microsoft stole from Apple. What comes around, goes around, it's called Karma. Apple's hardware was way overpriced, and the cheaper and more efficient PC clone prevailed. That's market sense for you. Pre OS X, the Apple system was HORRID. OS 9 and below blow, badly. Having worked as a Tier 1 tech for Apple Australia for nearly 18 months, I can honestly say that OS 9 and its ilk were clearly disliked by the vast majority of the support staff, in favour of OS X, which is clearly superior in every way.
"

The PC clone was very low-tech when it took hold, and there was nothing efficient about it. It was an overall inferior system. Apple was offering the cheapest desktop GUI (the Xerox machines that actually sold were tens of thousands), and much of their technology was way ahead of Microsoft well into their financial and technological decline in the '90s, namely Quicktime and Quickdraw. (Microsoft had an inefficient drawing system and poor quality multimedia then, and they have an inefficient drawing system and poor quality multimedia now.)

I'm sorry, what was this even about? Were you suggesting that Microsoft's position as absolute monopoly over PC operating systems somehow grew out of merit? Or a real price advantage?

Reply Score: 1

RE[5]: mmmm
by tyrione on Thu 28th Aug 2008 23:25 UTC in reply to "RE[4]: mmmm"
tyrione Member since:
2005-11-21

"[q]Understand this: Microsoft's business model only incidentally includes selling an operating system at retail. They don't make any money on it. Their real business comes from licensing deals with OEMs, which they've grievously abused to the extent that they could get away with, including stipulations that OEMs can't sell any other operating systems, Web browsers, media players, or Java VMs preinstalled on their systems. That's what anticompetitive behavior looks like.
"

b) Microsoft's OEM license does not forbid you from shipping another browser with Windows. Or another media player. That's just BS on your part. Same with Java VMs.


I'm talking about history. The '90s. Remember Netscape? Apparently not. My point is that if you think what Apple's doing is anticompetitive, you don't know the meaning of the word, which is apparently because you're not aware of any real anticompetitive behavior that has actually occurred in the real world. And in case the game we're playing here is splitting hairs, then yeah, it was never explicit in the contracts. Microsoft isn't stupid. They simply threatened to increase the price or pull the contract entirely. An OEM without Windows has nothing, and one that has to charge more for the same product is doomed. They were using their monopoly power over the industry as a whole to preempt consumer choice. Apple is doing no such thing. They're competing with hardware and software as a package, and they're doing very well.

Running OS X on non Apple branded hardware is NOT breaking copyright. I suggest you go and re-read copyright law.


Copyright allows an author to control the distribution and use of its works. It's what allows software licenses to exist at all, the GPL being an especially important example. It's copyright law that allows the authors to enforce that the source stay open. Apparently that's a perfectly legal maneuver because we find it convenient.

Psystar is selling an unauthorized derivative work. That's flat illegal.

"There are exactly two companies making money off a PC operating system right now, and both of them make their money from the hardware sale, not from a boxed software sale.


More BS. The only hardware Microsoft sells is the Xbox (at a loss I might add), and a MP3 player, Zune, which is a dud seller. Microsofts money is made in the OS, Office, and service/support. Get your facts right.
"

I didn't say Microsoft is selling the hardware. They know better than anyone that selling PCs with Windows is a sucker's game. The fact I stated is that Microsoft makes its money off the hardware sale. Their income comes from the licensing deal attached to the sale of a new PC, the "hardware." This is known as the "Microsoft tax." It's the source of their income. The practical difference between mean jerk Apple and generous, open Microsoft is that hardware and software come from two different companies on the PC side. There's no reason why that model should be enforced across the industry, and if it were, it would only deepen Microsoft's entrenchment as the sole software provider.

"Apple makes money because they offer a special platform that people want.


How is it special? One can argue that Vista offers something special that people want, or Linux, or BSD and so on, and so forth. Weak argument.
"

It's special because it's the rare computer that doesn't come with Windows. I didn't say that the thing it does come with is magically superior. That was your inference.

"They can make enough to stay healthy and invest so much into R&D because they sell the platform with premium hardware.


Premium hardware? WTF? Nearly all of the parts that go into a Mac are easily available off the shelf...
"

Premium hardware just means not junk. Not what's in a $400 Dell. It also means hardware that actually brings in a profit, again unlike a $400 Dell.

"There's nothing monopolistic or anticompetitive about it. Anyone can do what Apple does; they just can't do it with Apple's stuff. It's theirs. They created it; they own it. Case closed.


Tell you what then - *every* single piece of hardware in a Mac should be designed from the ground up by Apple, not sourced from 3rd party providers (who also provide identical parts to the PC industry I might add). Then you would be correct. As it stands now, you are wrong.
"

The fact that their hardware isn't unique to their systems has nothing to do with their right to sell a closed platform. Like every other computer you can buy, including embedded devices, Macs are designed in America and built in China out of parts anyone can order, and like every other computer you can buy, including embedded devices, there's an insubstantial amount of custom silicon that is not essential to most of its functions and that the software can safely ignore. You can't redistribute pilfered firmware because license and copyright forbid it. Same with OS X, even if Psystar did buy a retail upgrade DVD.

And I firmly believe that any EULA restricting what hardware can be used with the operating system in question is illegal. It has nothing to do with copyright, it has everything to do with monopolistic and anti competitive hardware lock in, nothing more, and certainly nothing less.


Copyright, IP, it all means you don't actually own anything. We at home have fair use on our side should we decide to make a hackintosh, but commercial redistribution doesn't have such protections. It's a violation of copyright to redistribute a work inconsistent with its licensing. Ask a school's choir or band director how stringent copyright requirements can be, and you'll be amazed.

"Just because the bulk of the market does something a certain way doesn't mean everyone must, should, or even can. It takes a perfect storm of backstabbing and good luck ( = the fall of IBM) to get where Microsoft is, and Apple simply can't follow them there. The after-market OS is an impregnable monopoly. No court has the right to force Apple to be more like NeXT, BeOS, and OS/2.


Apple wasn't exactly an innocent either. It stole from Xerox, Microsoft stole from Apple. What comes around, goes around, it's called Karma. Apple's hardware was way overpriced, and the cheaper and more efficient PC clone prevailed. That's market sense for you. Pre OS X, the Apple system was HORRID. OS 9 and below blow, badly. Having worked as a Tier 1 tech for Apple Australia for nearly 18 months, I can honestly say that OS 9 and its ilk were clearly disliked by the vast majority of the support staff, in favour of OS X, which is clearly superior in every way.
"

The PC clone was very low-tech when it took hold, and there was nothing efficient about it. It was an overall inferior system. Apple was offering the cheapest desktop GUI (the Xerox machines that actually sold were tens of thousands), and much of their technology was way ahead of Microsoft well into their financial and technological decline in the '90s, namely Quicktime and Quickdraw. (Microsoft had an inefficient drawing system and poor quality multimedia then, and they have an inefficient drawing system and poor quality multimedia now.)

I'm sorry, what was this even about? Were you suggesting that Microsoft's position as absolute monopoly over PC operating systems somehow grew out of merit? Or a real price advantage? [/q]

Get this straight for the last time. Apple bartered Apple Stock for a license to Xerox PARC IP that wasn't even in a released product.

The estimated value of that stock was well over $100 Million when Xerox sold their shares.

Do your own research on Xerox 10-Q forms through their archives or file a request from Xerox for this information, but it's indeed a fact.

Reply Score: 3

RE[5]: mmmm
by cycoj on Fri 29th Aug 2008 04:00 UTC in reply to "RE[4]: mmmm"
cycoj Member since:
2007-11-04


Copyright allows an author to control the distribution and use of its works. It's what allows software licenses to exist at all, the GPL being an especially important example. It's copyright law that allows the authors to enforce that the source stay open. Apparently that's a perfectly legal maneuver because we find it convenient.

Psystar is selling an unauthorized derivative work. That's flat illegal.


Repeating it over and over again does not make it right. Copyright allows the author to control the distribution of of his works, NOT the use! The GPL is a nice example, if you alter the code of linux at home or inside your company and only use it there you are under no legal obligation to release the source, it's when you start to distribute the code that you have to release it.

And Pystar is not selling an unauthorized derivative work, they are reselling an authorized copy of OSX. (They did not make the copy they bought it from Apple).

Reply Score: 3

RE[6]: mmmm
by melkor on Fri 29th Aug 2008 04:16 UTC in reply to "RE[5]: mmmm"
melkor Member since:
2006-12-16

Basically my thoughts. My restricting software to a particular set of hardware, I firmly believe that you are acting in an anti competitive manner.

Ask yourselves this question - Why is Apple so afraid of competition?

Dave

Reply Score: 2

RE[7]: mmmm
by apoclypse on Fri 29th Aug 2008 13:42 UTC in reply to "RE[6]: mmmm"
apoclypse Member since:
2007-02-17

WTF?! Apple's competition is the rest of the PC OEM market, that is a huge competition that they are slowly gaining on. The way they compete is by differentiating themselves from the rest of the competition. Like I said before, sure a judge can say Psystar is doing nothing wrong, but he can't force Apple to sell to a clones market. All Apple has to do is implement some form of DRM on their software and hardware, then any company circumventing their DRM will fall under the DMCA. I mean everyone acts like if Psystar wins that they really win. No they loose, along with the rest of the hackintosh community they don't mind stepping all over to get to their 15 minutes in the limelight.

Reply Score: 2

RE[6]: mmmm
by macUser on Fri 29th Aug 2008 16:13 UTC in reply to "RE[5]: mmmm"
macUser Member since:
2006-12-15

They did modify it... The OS no longer looks to Apple for updates.

Reply Score: 1

RE[5]: mmmm
by apoclypse on Fri 29th Aug 2008 13:26 UTC in reply to "RE[4]: mmmm"
apoclypse Member since:
2007-02-17

He also forgot to mention that Apple actually didn't steal anything from Xerox, Xerox and Apple had a deal letting Apple study some of the innovations that Xerox had made. MS on the other hand did steal from Apple under the guise of working on MS Office for Mac. Besides that what Xerox Parc and and what Apple created are almost two very different things, yes the basic are there, but a lot of things that are taken for granted today, in both windows and any other wimp platform,that came from Apple's own team, and anyone who says otherwise is just being naive and drinking the kool-aid.

Reply Score: 2

RE[6]: mmmm
by Thom_Holwerda on Fri 29th Aug 2008 14:43 UTC in reply to "RE[5]: mmmm"
Thom_Holwerda Member since:
2005-06-29

Besides that what Xerox Parc and and what Apple created are almost two very different things, yes the basic are there, but a lot of things that are taken for granted today, in both windows and any other wimp platform,that came from Apple's own team, and anyone who says otherwise is just being naive and drinking the kool-aid.


Classic Apple fanboyism here.

Xerox invented basically EVERYTHING that you saw in the original Mac. Everything - hardware, software, terminology. It all came from Xerox. Apple added a few touches of their own, but the original Mac is more like Xerox 1.0.1 than Xerox 2.0 or even 1.1.

Note that I'm not actually condemning it.

Reply Score: 1

RE[7]: mmmm
by apoclypse on Sat 30th Aug 2008 01:14 UTC in reply to "RE[6]: mmmm"
apoclypse Member since:
2007-02-17

Wrong. Have you actually seen what Xerox developed. Most of it was proof of concept. Sure things like the mouse and wysiswyg editors were from Xerox. There is no denying that Apple took a lot fro Xerox but to say that MacOS is just Xerox 1.01 shows lack of knowledge or bias. There is a lot of thinsg that we take for granted in our wimp interface that Xerox did not create. The recycle bin (trash), copy/paste, etc. You have to give credit where its due, Apple's engineers took what Xerox did and made far better than Xerox did themselves with Xerox Star. Star had a lot if interesting concepts that would later be used in the Lisa, but MacOS is pretty much a template for most WIMP interfaces out there. Tha runs the gamut from Windows, all the way to Gnome/KDE. Besides a lot of Xerox employees including Jeff Raskin who had been working on the Lisa and invented the drag and drop concept had moved to Apple because Xerox themselves did not know what they had, and when they finally did get to making their own OS, it wasn't developed by PARC but by another group instead.

Reply Score: 2

RE[6]: mmmm
by melkor on Sat 30th Aug 2008 01:04 UTC in reply to "RE[5]: mmmm"
melkor Member since:
2006-12-16

I'll quote the wikipedia, since I'm pretty sure it's accurate in this respect:

"n 1970, under company president Charles Peter McColough, Xerox opened the Xerox PARC (Xerox Palo Alto Research Center) research facility. The facility developed many modern computing methods such as the mouse and the graphical user interface. From these inventions, Xerox PARC created the Xerox Alto in 1973, a small minicomputer similar to a workstation and personal computer. The Alto was never commercially sold, as Xerox itself could not see the sales potential of it. In 1979, several Apple Computer employees, including Steve Jobs, visited Xerox PARC, interested in seeing their developments. Jobs and the others saw the commercial potential of the GUI and mouse, and began development of the Apple Lisa, which Apple introduced in 1983.
The Xerox Alto workstation was developed at Xerox PARC.
The Xerox Alto workstation was developed at Xerox PARC.

Xerox later released a similar system to the Alto, the Xerox Star in 1981 as a workstation. It was the first commercial system to incorporate various technologies that today have become commonplace in personal computers, including a bit-mapped display, a window-based GUI, mouse, Ethernet networking, file servers, print servers and e-mail. The Xerox Star, despite its technological breakthroughs, did not sell well due to its high price, costing $16,000 per unit. A typical Xerox Star-based office would have cost $100,000.

In the mid 1980s, Apple considered buying Xerox; however, a deal was never reached. Apple instead bought rights to the Alto GUI and adapted it into to a more affordable personal computer, aimed towards the business and education markets. The Apple Macintosh was released in 1984, and was the first personal computer to popularize the GUI and mouse amongst the public."

So, Apple was copying the GUI design and mouse after seeing it in action at Xerox, several years before it actually paid Xerox for the Alto GUI design. Doesn't really sound like Xerox let Apple copy it to me! Once again, rose coloured glasses are @ play with Apple lovers. You guys are just as bad as the Linux nuts.

Dave

Reply Score: 2

RE[2]: mmmm
by jptros on Thu 28th Aug 2008 12:59 UTC in reply to "RE: mmmm"
jptros Member since:
2005-08-26

That's an excellent point Dave. I think Apple is sooner or later going to head down the same path as Microsoft in terms of anti-trust litigation. People seem to let Microsoft's battles slip their minds (or just look the other way when the company is not Microsoft).

Old post/mockery of these sorts of people:

http://osnews.com/thread?312433

Reply Score: 1

I'm not sure this is going to hold up
by Phloptical on Thu 28th Aug 2008 00:10 UTC
Phloptical
Member since:
2006-10-10

I guess it's all in the EULA. If they were just to sell a device, or piece of homemade code that one could then obtain and run OS X themselves, then maybe they have a shot. But selling an OS X pre-installed modded system is definitely shady territory, regardless of the fact they make you purchase a copy of OS X. They are making money off of re-selling software that hasn't been licensed, or sanctioned by Apple. It's like taking a blu-ray movie, ripping it to normal DVD (for non blu-ray owners, then selling the copy AND the blu-ray version together.

Reply Score: 2

TechGeek Member since:
2006-01-14

Thats kind of a bad example as the DMCA makes copying blu ray illegal to start with. However, if you had a book and made 2 copies, even if one was digital from OCR, and you sold it all together, that is perfectly legal. You typically have the right of first sale, and as long as all copies you made are kept together, there is no illegal distribution.

Reply Score: 4

werfu Member since:
2005-09-15

I guess it's all in the EULA. If they were just to sell a device, or piece of homemade code that one could then obtain and run OS X themselves, then maybe they have a shot. But selling an OS X pre-installed modded system is definitely shady territory, regardless of the fact they make you purchase a copy of OS X. They are making money off of re-selling software that hasn't been licensed, or sanctioned by Apple. It's like taking a blu-ray movie, ripping it to normal DVD (for non blu-ray owners, then selling the copy AND the blu-ray version together.


Your blu-ray example is an illegal situation because of the DMCA, not because of any copyright infringement. In fact, the one who'd be a criminal would be the one who ripped the disk and not the one who's buying it. IMHO the DMCA shouldn't be at all, at is break the freedom of expression and by the same way, the right to make yourself backups. But that's not the point. (Heck they're gonna be a similar law in Canada, I guess I will not vote for the current government :-@ )

If I remember well, Psystar guys use a pre-bootloader emulating the EFI to trick MacOS X into thinking it's running on a mac. While this may seems shady, it's by no way modifying the actual Apple property. What it may do though, is to infringe the patent that Apple has on its special security chip. And if it's the case, then it's undebatable. But, Psystar may always contest that patent on the ground that it is unfair and that is shouldn't has been accorded first (I'm no patent expert so this sure is way more complicated than that).

The result of this may set an important precedent. If EULA can't be enforced and Apple is convicted of unfair business practise, a lot of things are gonna change. All of a sudden they could be a lot of people selling MacOS based computer. I guess Apple will try to stop this and they'll surely close up the Darwin project, but if the tide is wide enough they won't be able to stop it.

I guess I'm not the only one who'd like Apple to start selling MacOS X as competitor to Windows. I don't think this would happen soon. But this could be an heck of a bomb. With all the hype going around Apple's products, everybody liking them could be a potential buyer. If only one tenth of the current PC user bought their OS, they would even there have a bigger user base than what they currently have. As PC gaming continue to shrink, having a rock stable OS that is virtually malware free (*) could prove to be VERY attractive to basic users. MacOS can do all your common task while being pleasant and sane of use. The Parallel stuff (3D support included), can resolve most of compatibility and gaming problem. Still it require a Windows license, so Wine or ReactOS could be of great use here.

I think MacOS could be the "Linux on desktop" thing we're all tired of. Yet, Apple will have to open up a bit (could they?) and fix some security problems that MS might smash them in the face with.

* : I know that MacOS is not malware free and that is has been hacked faster than Vista in a security competition, but the current number of viruses and malware running on it is extremely low compare to what Windows has. Viruses use security breaches or user stupidity to spread. I guest for now that MacOS is just more well-built than Windows (breaking compatibility is good!) and that it's current user base is smarter than the Windows base (I'm not telling anyone using Windows is dumb).

Reply Score: 3

Phloptical Member since:
2006-10-10

Yes, I'd like to see white-box Macs legally sold. Or OS X supporting multitudes of devices too. I don't think it's going to happen, but I'd like to see it anyway. From what I understand, Apple is basically giving away OS X to mark up their hardware at least 300% on profit margin. Sure, some Mac lines have less margin than others, but all in all, that's their bread and butter. Now, the quuestion is, is it financially sound for them to start opening OS X to white box vendors or start adding support for many "Non-Mac" peripherals? Is there really that much demand from desktop users to run OS X? I don't think there is. Maybe market share would tick up a bit, but they'd still be competing with desktop linux for 2nd, or 3rd place. Microsoft owns the businesses. And will continue to own the businesses.

Anyway, that was off topic. My example of ripping blu-ray may be against the DMCA, but one could (and probably will) argue that Psystar is committing copyright infringement as well. What we believe, doesn't matter, it's what the legal vultures on both sides can prove.

Reply Score: 2

Panajev Member since:
2008-01-09

I guess it's all in the EULA. If they were just to sell a device, or piece of homemade code that one could then obtain and run OS X themselves, then maybe they have a shot. But selling an OS X pre-installed modded system is definitely shady territory, regardless of the fact they make you purchase a copy of OS X. They are making money off of re-selling software that hasn't been licensed, or sanctioned by Apple. It's like taking a blu-ray movie, ripping it to normal DVD (for non blu-ray owners, then selling the copy AND the blu-ray version together.


Just because you put it in the EULA does not guarantee it is legally enforceable...

Reply Score: 3

Comment by buck2769
by buck2769 on Thu 28th Aug 2008 03:50 UTC
buck2769
Member since:
2008-01-13

While I fully support the fight against anti-competitive practices. I also really like the hardware software package that Apple offers. Apple makes most of it's computer money on it's hardware. Thus the $129 OS. If clones start becoming legal, the software will inevitably go up in price. $300-$500 copies of Vista anyone?
That would suck for those of us that aren't cheap a$$es and don't mind spending more for the apple hardware.

Reply Score: 0

RE: Comment by buck2769
by melkor on Thu 28th Aug 2008 04:12 UTC in reply to "Comment by buck2769"
melkor Member since:
2006-12-16

And one could argue that Apple deliberately underprices OS X to cut out the competing market, and makes up for the losses from O/S sales by its hardware margins. I see no issue here, move along...

Two thoughts come to mind when dealing with Apple:

1. Rotten to the core
2. A bad apple

These are both comments that myself and a good mate used after Apple Australia screwed us over (we were contractors providing our services to their technical department). They are a horrid company to work for.

Dave

Reply Score: 2

RE[2]: Comment by buck2769
by Tuishimi on Thu 28th Aug 2008 06:16 UTC in reply to "RE: Comment by buck2769"
Tuishimi Member since:
2005-07-06

Or you could argue that since the OS comes with a new Apple computer, you are only paying for major upgrades, hence the cheaper pricing on the OS.

Edited 2008-08-28 06:17 UTC

Reply Score: 2

RE[3]: Comment by buck2769
by melkor on Thu 28th Aug 2008 09:33 UTC in reply to "RE[2]: Comment by buck2769"
melkor Member since:
2006-12-16

Or you could argue that since the OS comes with a new Apple computer, you are only paying for major upgrades, hence the cheaper pricing on the OS.


What a load of BS, it's amazing how one eyed Mac lovers are, almost as bad as the Linux lovers group. Apple hardware is still bloody expensive, although it is better priced today than it used to be.

God knows why Apple users are so fanatical about Apple - it's good, but not the be all and end all that most Apple users tend to rabidly rave about.

Dave

Reply Score: 2

RE[4]: Comment by buck2769
by mxcl on Thu 28th Aug 2008 13:23 UTC in reply to "RE[3]: Comment by buck2769"
mxcl Member since:
2008-05-22

Seriously Dave, calm down.

It is clear you hate bias. It is also clear that you are biased.

I expect you have some unique insight about Apple to offer us, but it is sadly buried in mindless ranting.

Reply Score: 0

RE[4]: Comment by buck2769
by Tuishimi on Thu 28th Aug 2008 14:56 UTC in reply to "RE[3]: Comment by buck2769"
Tuishimi Member since:
2005-07-06

Ummm, I did not know I was rabidly raving about it. Please do point that out in my previous post:

Or you could argue that since the OS comes with a new Apple computer, you are only paying for major upgrades, hence the cheaper pricing on the OS.

Oh I see, I said "a new Apple computer"... wow, I guess you are right, I am raving my head off there.

Reply Score: 2

RE: Comment by buck2769
by Bobthearch on Fri 29th Aug 2008 15:51 UTC in reply to "Comment by buck2769"
Bobthearch Member since:
2006-01-27

While I fully support the fight against anti-competitive practices. I also really like the hardware software package that Apple offers.
Choices are good, there's no question about it. So continue to buy your MacOS bundled with OSX if you prefer. Pystar, if it becomes popular enough, might force Apple to sell at more competitive prices eventually. But they can't stop consumers from buying Apple hardware.

Apple makes most of it's computer money on it's hardware. Thus the $129 OS.
The full version of OSX is available retail for $110. That's competitive with Vista / XP prices.

If clones start becoming legal, the software will inevitably go up in price. $300-$500 copies of Vista anyone?
Nonsense. Microsoft doesn't pad their operating system profits with hardware prices. Vista is available retail for under $100, and they make HUGE profits at that price.

Reply Score: 2

Comment by graigsmith
by graigsmith on Thu 28th Aug 2008 05:01 UTC
graigsmith
Member since:
2006-04-05

i hope they win.

Reply Score: 3

RE: Comment by graigsmith
by mxcl on Thu 28th Aug 2008 13:27 UTC in reply to "Comment by graigsmith"
mxcl Member since:
2008-05-22

I don't really see why everyone is so upset that Apple doesn't let other people resell OSX for use on non-Macs.

Surely it's up to them.

If Microsoft decided to only sell XP through Dell then they'd be stupid as they'd lose lots of money. Apple seemingly think they make more money this way, so power to them.

You can always buy OSX and stick it on your Dell anyway. They can't stop you doing that. But they want to stop third parties selling fake Macs, which seems reasonable to me.

But maybe I'm being stupid. Please correct me if so.

Reply Score: 2

RE[2]: Comment by graigsmith
by Bobthearch on Fri 29th Aug 2008 15:06 UTC in reply to "RE: Comment by graigsmith"
Bobthearch Member since:
2006-01-27

They aren't selling "fake Macs." The computers aren't labeled as Macs, they aren't advertised as Macs, and in fact they explicitly state that the computers are ~not~ Macs.

How can that be the same as selling fake Macs?

Reply Score: 3

Comment by apoclypse
by apoclypse on Thu 28th Aug 2008 12:57 UTC
apoclypse
Member since:
2007-02-17

These arguments are all pointless. The minute Apple is forced to let others install their OS on other hardware for commercial purposes, they will close up the OS and add DRM to avoid it from happening. Yes there can be a ruling declaring that Apple's EULA is non-enfircable but that doesn't mean that a future version can't be released that enables some form of copy protection via hardware (the ability is already there but not on)and software. Meaning that to run it on other hardware you would have to hack both your hardware and software to run OSX at all. No problem for personal use, but if you try to sell that, then you are definitely violating copyright. The main reason Apple probably hasn't done it already is because they don't want to alienate PPC users. With 10.6 that is supposed to change so get ready to jump through major hoops to get OSX running on your commodity hardware. Basically Psystar just shit on the osx86project (literally on the hackers who dedicated their time and effort to get it work in the first place).

Psystar is not the champion of justice as you guys are making it out to be. They are in it for themselves and have no scruples or care for copyright at all since they won't even bother to respect the author of the software that enables them to run OSX on their hardware in the first place. Have they even contributed back to the community since they took the code? How about giving the author money for his hard effort? He certainly didn't want his work sold in the first place. But I notice people conveniently overlook this point in their anti-Apple fervor. Do you really think that they will force Apple to open up? Instead they will have the opposite effect on Apple and a company who was trying to open up will shut themselves in tighter than they ever had to do before. Get ready for an Apple friendly version of what we see in Vista.

Reply Score: 1

They sell Linux computers..
by fithisux on Thu 28th Aug 2008 13:49 UTC
fithisux
Member since:
2006-01-22

and they could sell licenced Solaris instead of Mac. It is better and it does not depend on Macs.

Reply Score: 2

Redistributing
by yoursecretninja on Thu 28th Aug 2008 14:16 UTC
yoursecretninja
Member since:
2006-01-02

I think the case here is not whether or not it is legal to install OS X on to non-apple hardware, but whether or not it is legal for a commercial enterprise to distribute another company's product without an agreement or license to do so. Companies can and do control the distribution of their products. You want to control who sells your product because having poor vendors sell your product can damage your brand equity. Seeing is how Pystar is buying copies of OS X intended for end-use only and commercially distributing those copies without an agreement stating that they can do so, does not seem like a legitimate way to operate.

I would equate this to video rentals. Video rental outlets, like Blockbuster, or even your corner store, have to purchase licenses to distribute the videos. The license costs far more than the cost of the DVD. Blockbuster can't go to Wal-mart and buy copies of a DVD meant for end-use and then rent or sell those DVDs in their store.

Reply Score: 4

RE: Redistributing
by apoclypse on Thu 28th Aug 2008 15:11 UTC in reply to "Redistributing"
apoclypse Member since:
2007-02-17

Bingo. You hit it right on the head.

Reply Score: 2

RE[2]: Redistributing
by alcibiades on Thu 28th Aug 2008 20:45 UTC in reply to "RE: Redistributing"
alcibiades Member since:
2005-10-12

No, he did not hit the nail on the head. Its not comparable at all. On the user's behalf, Psystar buys a retail copy of the OS, and installs it, in accordance with his wishes, on the hardware of his choice. They then pass the package on to him, and title changes hands. Its a straightforward resale and service business. They don't need anyone's permission to do it.

Not comparable to video rentals at all. Perfectly straightforward sales transaction. Notice that you can if you want buy just about anything at retail and sell at retail in general, in all jurisdictions, if there is a market, if you can make money at it, or if you just feel like doing it as a service to your customers.

The exception is some state liquor controls, which mandate purchasing at certain licensed outlets by bars. But there are not many of these.

Reply Score: 5

I'm glad this is happening ....
by JeffS on Thu 28th Aug 2008 17:27 UTC
JeffS
Member since:
2005-07-12

... for the simple fact that a EULA is being challenged in court. I know there are other things to this, but for me the important part is the EULA.

Essentially, EULA's are unconstitutional, and a violation of end users basic rights.

It's just that, until now, nobody has bothered challenging them in a court of law.

I'm really hoping that this opens the flood gates for rendering EULA's impotent, or at least causes regulation of what can be legally included in a EULA.

Reply Score: 2

alcibiades Member since:
2005-10-12

It has nothing to do with Eulas. It has to do with the clauses in the Eula. Some clauses in Eulas will be valid and enforceable, others not. It depends on what they say, and whether they conflict with competition and consumer protection law. It is a mistake to get the validity of Eulas confused with this.

The prohibition on installing on non Apple branded systems would be exactly as valid, or invalid, if I signed a paper contract on purchase of the OS. Because it does not have to do with how the contract is presented, it has to do with what is in it.

Reply Score: 3

Amdahl Precedent?
by james_parker on Thu 28th Aug 2008 18:21 UTC
james_parker
Member since:
2005-06-29

Does anyone know if there is a legal precedent from when Amdahl started to build IBM 360/370 mainframe clones?

These machines ran IBM-supplied operating systems (VM, MVS), and had to somehow get licensed copies from IBM to so do.

I haven't been able to find anything on this history, but I don't have access to Lexus (or similar).

Reply Score: 2

If I was an evil, big, bad....
by Googol on Thu 28th Aug 2008 23:25 UTC
Googol
Member since:
2006-11-24

law firm, I'd prostitute myself to fight this through for free - imagine the prestige knocking Apple's tacky pants off. And then of course you can get 30% off the gazillions of unspecified damages from Apple - so everybody's happy in the end.

Reply Score: 2

v DON'T BUY APPLE HARDWARE
by tyrione on Thu 28th Aug 2008 23:29 UTC
RE: DON'T BUY APPLE HARDWARE
by alcibiades on Fri 29th Aug 2008 10:05 UTC in reply to "DON'T BUY APPLE HARDWARE"
alcibiades Member since:
2005-10-12

You don't like their terms, don't buy it.


Its not about that at all. Its in fact the exact opposite


The issue is, for Apple, you don't like the law on competition and consumer protection, you do not want to sell under terms which comply with them, that's just fine. Stop selling. Because if you carry on trying to sell with contractual terms which are not enforceable, guess what, they will not get enforced. Someone, someday, will call your bluff. Psystar just did.

It is a bit like they put a clause saying you have to buy a pro series Mac if you want to use it for business purposes. This is a post sales restraint on how you may use it after you have bought it, and this too would be equally unenforceable. The difference is, they would be called on it the next day. This particular one with what you may install the stuff on has taken a few years, owing to the technical hurdle of EFI etc.

But it is the same thing. When you sell, the buyer has all the rights which the local jurisdiction grants, and if you do not like this, the only thing you can do is stop selling.

Its your problem, its not the buyer's problem. Its about admitting that you live in America, or the EC, right here on Planet Earth.

There is a real interesting issue on this which no-one ever writes about. What about the restrictions like, I buy an education copy of an IDE. The license restricts me from using it for profit. I leave college, keep the package, and write some for profit. Or my university decides to commercialize something it wrote with academic copies. Is this enforceable? There are a lot of cases which are not as clear cut as the tied hardware cases, but which are sort of in a similar category, and which are far more important to the structure of the software industry. I don't know the answer on these kinds of case.

Reply Score: 5

Emulators
by Glynser on Fri 29th Aug 2008 07:31 UTC
Glynser
Member since:
2007-11-29

What's the situation like with Emulators or Virtual Machines? Aren't there Mac Emulators out there? I thought so. So is it legal to use Mac OS inside a Mac Emulator, and don't you think it would be legit to sell an Emulator along with Mac OS in a bundled package? No modification is made to the OS, of course.

Reply Score: 1

RE: Emulators
by alcibiades on Fri 29th Aug 2008 10:10 UTC in reply to "Emulators"
alcibiades Member since:
2005-10-12

There is a clause in Vista Home, which forbids running it on a virtual machine. I think this is probably unenforceable too, at least with retail purchased copies. Office used to have, maybe still does have, a clause prohibiting installation on non-Windows OSs. This is probably unenforceable. They will not be able to stop you running a retail copy of Office under Wine or Crossover. Or in a VM. Assuming in all cases you do not violate copyright by making multiple unauthorized copies except as needed to do the install. Some server licenses forbid the installation on virtual machines or the movement of one of these VMs from one bit of hardware to another. No-one is going to go to court over this, but I doubt whether this would be enforceable either, assuming retail purchased copies.

I think installing OSX in a virtual machine will also not be preventable. One copy, from a retail purchased copy. This too is a post sale restraint on use, and probably won't fly.

Reply Score: 2

RE[2]: Emulators
by Glynser on Fri 29th Aug 2008 14:12 UTC in reply to "RE: Emulators"
Glynser Member since:
2007-11-29

Yes, but my question was: shouldn't it then be also allowed to sell an emulator ALONG with Mac OS? Because Mac OS wouldn't have to be modified for that, it's the Emulator that makes it possible.

So if that would be legit, selling HARDWARE (instead of an Emulator) and a still untouched OS should be the same, or not?

Reply Score: 2

RE[3]: Emulators
by alcibiades on Sat 30th Aug 2008 01:47 UTC in reply to "RE[2]: Emulators"
alcibiades Member since:
2005-10-12

Yes, one might expect that to be OK. You would be supplying two products, each one perfectly legal and available separately, but which together can be used to enable your customer to break the terms of a civil contract with one of the suppliers of one of the items. It is very hard to see what would be actionable about that. They might not like it, but are they going to get a court to rule that the two items, though available separately, cannot be sold together? Doubtful surely?

Reply Score: 2

What a strange world...
by GStepper on Fri 29th Aug 2008 14:58 UTC
GStepper
Member since:
2006-03-08

- Apple sales their own computers (hardware & Software).
- Apple is not a monopoly on the computer market.
- Apple has no interest in selling their macintosh's operating system (aka Mac OS X) to third party vendors.
- Apple business is efficient and doesn't need "help" for Psystar. Quite the opposite, Psystar needs Apple.
Now there's a concept everybody should understand, it's the concept of "expensive". In fact, expensive means nothing except "I can't afford it". To prove this, just consider the situation where you'd be a multi-millonaire. In this situation would you consider a 1000, 2000 or 3000 $ computer expensive ? I know some intellectualy dishonnest people would say something like "no, I'd stick to my principles...bla, bla, bla...) Hence if you can't afford a macintosh because it's expensive, don't buy it period !

Another analogy can be made with car industry, can you buy (brand new from the manufacturer) a dodge viper engine to put it in your home-made chassis ? No ! Can you complain that Dodge is a monopoly ? No !
Now Psystar's supporters, have you ever tried the process you defend in real life ? Do you have sent to court Rolls royce, Ferrari, you-name-it because it's "expensive" ? No !

Psystar is not only "naive" but stupid. They act like a child who, once he/she learnt to ask something withe "please", thinks the natural and obvious answer is Yes ! Dear Apple, can I make money on YOUR market with your OS PLEASE? Apple responded NO!
I really hope Apple will win !

Reply Score: 2

RE: What a strange world...
by Bobthearch on Fri 29th Aug 2008 15:31 UTC in reply to "What a strange world..."
Bobthearch Member since:
2006-01-27

- Apple has no interest in selling their macintosh's operating system (aka Mac OS X) to third party vendors.
Yes, MacOSX is sold through many third-party vendors, including Amazon.com. And it's sold seperately with NO HARDWARE. AND it's sold as a full version, not simply an upgrade pack.

And if Pystar wants to buy copies of OSX from Amazon.com (or wherever) and resell them, Apple can't stop them.

Now if Apple refuses to sell to Pystar directly or refuses Pystar as an "Apple Authorized Dealer", that's well within their rights.

Another analogy can be made with car industry, can you buy (brand new from the manufacturer) a dodge viper engine to put it in your home-made chassis ? No ! Can you complain that Dodge is a monopoly ? No !
A ridiculous comparison. You can buy genuine parts directly from any automobile manufacturer, and you can put them into whatever car you want to. Furthermore, if Dodge refuses to sell certain parts separately (like the Viper engine, if that's true), there's nothing at all to prevent people from reselling Viper engines they buy from other sources (as Pystar is doing).

Psystar is not only "naive" but stupid. They act like a child who, once he/she learnt to ask something withe "please", thinks the natural and obvious answer is Yes ! Dear Apple, can I make money on YOUR market with your OS PLEASE?
Ridiculous. You don't need to ask permission to resell products from any manufacturer. Does someone need permission from Sunbeam to resell their toaster at a garage sale?!?

Reply Score: 2

Software rights and wrongs.
by chaosvoyager on Fri 29th Aug 2008 15:06 UTC
chaosvoyager
Member since:
2005-07-06

In a perfect corporate world, everything would be leased from companies and licensed only for specific purposes (such as not being used to compete against said company). Luckily we don't live in a perfect corporate world, and the ability to hold personal property is a critical foundation to democracy (at least as defined by the US Constitution). Just put "life, liberty, and property" in the search engine of your choice and see what pops up.

Now the typical commercial EULA gives you a right to ~use~ the software in question, but not a right to a COPY of it. But if this is the case, then you own any copy of the software you purchase, and so have the same rights to it as you would for any other work protected by copyright.

So the question becomes: how much can an EULA modify the rights granted by copyright law? It will be interesting to see how much the Apple vs. Psystar case helps to further define the answer.

As an aside, I don't think copyright should even apply to software.

Software is the only work protected by copyright that must both be copied AND modified (a derivative work is created) to use for the purpose it was intended for. And protecting the description of a algorithm is akin to using patents to protect a method of execution. For example, exactly how many ways are there to write a quicksort in C which aren't either suboptimal, or just using different names for the same functions and variables?

Reply Score: 2

RE: Software rights and wrongs.
by tyrione on Fri 29th Aug 2008 23:54 UTC in reply to "Software rights and wrongs."
tyrione Member since:
2005-11-21

In a perfect corporate world, everything would be leased from companies and licensed only for specific purposes (such as not being used to compete against said company). Luckily we don't live in a perfect corporate world, and the ability to hold personal property is a critical foundation to democracy (at least as defined by the US Constitution). Just put "life, liberty, and property" in the search engine of your choice and see what pops up.

Now the typical commercial EULA gives you a right to ~use~ the software in question, but not a right to a COPY of it. But if this is the case, then you own any copy of the software you purchase, and so have the same rights to it as you would for any other work protected by copyright.

So the question becomes: how much can an EULA modify the rights granted by copyright law? It will be interesting to see how much the Apple vs. Psystar case helps to further define the answer.

As an aside, I don't think copyright should even apply to software.

Software is the only work protected by copyright that must both be copied AND modified (a derivative work is created) to use for the purpose it was intended for. And protecting the description of a algorithm is akin to using patents to protect a method of execution. For example, exactly how many ways are there to write a quicksort in C which aren't either suboptimal, or just using different names for the same functions and variables?


Raise your hand if you think progress in the FOSS Community would be at the level it is if copyright didn't exist for software.

Don't be shy.

-------------

Personally, what's next? Novelists, screenwriters and more should not have copyrights?

That is the dumbest concept. Where the hell is the motivation to innovate if your reward is some Socialist Good Will Award? Or should we call it some Judeo-Christian Good Will Salvation Award?

Even Linus has a trademark and other legal rights to LINUX.

Give it a rest.

Reply Score: 1

RE[2]: Software rights and wrongs.
by tupp on Sat 30th Aug 2008 01:27 UTC in reply to "RE: Software rights and wrongs."
tupp Member since:
2006-11-12

Personally, what's next? Novelists, screenwriters and more should not have copyrights?

Software is a different animal than other creations protected by copyright. Software is considered to be technology, and, thus, it can also be protected by patents. Try patenting a novel or a screenplay!


Where the hell is the motivation to innovate if your reward is some Socialist Good Will Award?

What was Vincent Van Gogh's motivation? ...that his innovative paintings would make a lot of money after he was dead?

There are all kinds of non-monetary motivations for people to create and put out effort. Why do we bother to spend time commenting in this forum?

Reply Score: 2

chaosvoyager Member since:
2005-07-06

Raise your hand if you think progress in the FOSS Community would be at the level it is if copyright didn't exist for software.

The single biggest factor in the success of open source has been leadership.

Copyright is important to open source because it can be used to make sure everyone has a right to view at least one description of a piece of software. And while such code can usually be compiled into a functioning program, this does not have to be the case.

But licenses such as the GNU depend on the fact that the same copyright protections apply to any derivative works, which in software is very unclear. And even if you have the code and compile it, patents can still be used to prevent you from actually USING it.

Copyright breaks down as a legitimate form of protection once derivative works are either required or can no longer be clearly defined. If I rewrite the Linux kernel in Ocaml, have I created a derivative work? What if a computer did it? What if a C language generator emits copyright protected code based on a Java file? What if that C code is run straight into the compiler and it neither gets saved or seen?

Most important, how do you prove any of this?

The biggest abuse of copyright I have seen to date has to be Maxgen's attempt to copyright gene sequences as music, and then trying to prevent anyone else from doing the same by PATENTING it (not the gene sequence, the act of encoding DNA as music).

http://www.wired.com/medtech/health/news/2002/05/52666

Trademarks and patents are far more appropriate to protecting software than copyright is, but the current patent system is an absolute mess, and patents are not automatically granted like copyrights are.

Personally, what's next? Novelists, screenwriters and more should not have copyrights?

Copyright still works for these kinds of media. But even here the lines can be blurred. What's to stop me from claiming that an MP3 song is a piece of software run by an MP3 decoder? While the output might be copyright protected, the software can be protected by an EULA. A better example would be a vector image, which IS just a set of instructions.

Where the hell is the motivation to innovate if your reward is some Socialist Good Will Award?

When did I say creators didn't have a right to profit financially from their work?

Come to think of it, I seem to recall saying the right to hold personal property was a critical element in a working democracy.

Socialist indeed.

Even Linus has a trademark and other legal rights to LINUX.

His trademark rights are the big guns.

Lets remember that Sun won billions from Microsoft not do to copyright infringement, or patent infringement, or antitrust issues, but because Microsoft improperly used the Java trademark.

BTW, these are Apple's big guns too, and they care more about their brand integrity than most. If Psystar is going down for anything, it will be this.

Reply Score: 1

RE: Software rights and wrongs.
by alcibiades on Sat 30th Aug 2008 02:00 UTC in reply to "Software rights and wrongs."
alcibiades Member since:
2005-10-12


So the question becomes: how much can an EULA modify the rights granted by copyright law? It will be interesting to see how much the Apple vs. Psystar case helps to further define the answer.


Well, not quite. Its not really to do with EULAs at all. The basic question is to what extent a manufacturer of a product who sells it at retail can, by any sort of contract of sale, not just a EULA, restrict the use of it which the buyer makes after having bought it.

It is also not that the rights are granted by copyright law. What happens is, copyright restricts how many copies you may make. What is going on here is not to do with that. It is not to do with copyright at all. Its to do with how you may use it. But yes, agreed, you have indeed bought a copy. All the usual talk of you haven't bought it, you have just licensed it, is nonsense. You are quite right, it is like buying a book. But the basic principle is the same whether what you buy is protected by copyright or not.

This is sort of like you buy an old fashioned razor at Walmart. As you leave the store, they hand you a contract which you have to sign to leave. It says you will only use Walmart blades in this razor. You sign, buy some Gilette blades someplace else, and post pictures of yourself installing them into your razor and then shaving. You have a broad grin on your face.

They sue you for breaking the contract. Do you think they have any hope at all? Of course not. You cannot impose contracts on people which abridge their basic rights under competition and consumer protection laws. You can try, but the contracts will be unenforceable. And it may even be unlawful misrepresentation to try it on.

Reply Score: 2

chaosvoyager Member since:
2005-07-06

The basic question is to what extent a manufacturer of a product who sells it at retail can, by any sort of contract of sale, not just a EULA, restrict the use of it which the buyer makes after having bought it.

Yes. The reason this is tied in with copyright law is because that's the only way to link the contract to the use of the material in question. If copyright wasn't involved, then the only thing a company could sell would be pure rights to DO something, not TO something.

It is also not that the rights are granted by copyright law. What happens is, copyright restricts how many copies you may make.

Copyright law (at least in the USA) goes much further than that. It also affects under what conditions you are allowed to create a derivative of, or publicly perform, a work. Of particular importance in this matter are 'fair use' rights, which have already been compromised by things such as the DMCA. Fair use implies that you are allowed to make a backup copy of a work, while the DMCA implies you are not allowed to circumvent the encryption in order to do so. And unlike an EULA, the DMCA is a law, and breaking it IS illegal.

This is sort of like you buy an old fashioned razor at Walmart. As you leave the store, they hand you a contract which you have to sign to leave. It says you will only use Walmart blades in this razor.

Not only is this unenforceable under law, but the Magnuson-Moss Warranty Act states that such an act won't even void your warranty.

Now if you signed a contract stating you agree to PURCHASE a certain amount of blades from Wal-Mart, then that's a different story.

And it may even be unlawful misrepresentation to try it on.

I'm hoping this will be found to be the case. Otherwise, large corporations can sue smaller competitors with abandon.

As bad as the DMCA is, it does have a clause which states that if a copyright holder misrepresents their case and sues you, you have a right to ask for legal fees and damages.

http://www.theregister.co.uk/2008/08/25/dancing_baby_universal_dmca...

Reply Score: 1

Apple could sell more Macs
by gfx1 on Sat 30th Aug 2008 23:45 UTC
gfx1
Member since:
2006-01-20

If they added a midprice desktop to their lineup.
There is a huge gap between a mac mini (design gets a bit old these days, combo drive (why do they still insult the customers with that one?) slow laptop drive and antique video and way over the top Power mac.

If they updated the mini with a slightly larger case included a normal 3.5" harddisk and an dvd writer like every other desktop PC I would be tempted to buy one.

Reply Score: 1