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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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 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 Parent Score: 2

RE[2]: Broader issue ...
by flanque on Thu 28th Aug 2008 01:02 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 Parent Score: 9

RE[2]: Broader issue ...
by tweakedenigma on Thu 28th Aug 2008 02:53 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 Parent Score: 7

v RE: Broader issue ...
by NathanHill on Thu 28th Aug 2008 03:16 in reply to "Broader issue ..."
RE[2]: Broader issue ...
by alcibiades on Thu 28th Aug 2008 05:41 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 Parent Score: 5

RE[2]: Broader issue ...
by Thom_Holwerda on Thu 28th Aug 2008 10:09 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 Parent Score: 11

RE[2]: Broader issue ...
by Bully on Thu 28th Aug 2008 14:16 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 Parent Score: 3

RE: Broader issue ...
by looncraz on Thu 28th Aug 2008 03:29 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 Parent Score: 9

RE[2]: Broader issue ...
by Wrawrat on Thu 28th Aug 2008 04:39 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 Parent Score: 2

RE[2]: Broader issue ...
by rajan r on Thu 28th Aug 2008 17:26 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 Parent Score: 0