Gutsy/foolhardy Mac clone maker Psystar responded in August to Apple's copyright infringement lawsuit with an anti-trust lawsuit against Apple. Earlier this week, Apple's lawyers filed a motion to have the suit dismissed, calling it "deeply flawed." In its statement, Apple contends: "One of the bedrock principles of antitrust law is that a manufacturer's unilateral decision concerning how to distribute its product and with whom it will deal cannot violate the Sherman Act."
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Member since:2005-10-12
I am not so sure. It is going to be very interesting when it comes to court. The case seems to depend on the allegation that what Psystar is doing amounts to trying to force Apple to license OSX to it. It then argues (p13) that
the antitrust laws cannot be used to force Apple to license its Mac OS to a competitor such as Psystar.
Most of the brief is written from this point of view.
But is this actually what Psystar is doing, and is this what the case turns on? Presumably Psystar's attorneys will argue to the contrary. The argument will presumably be that no-one wants Apple to license Psystar to make clones. Psystar does not need any licensing to install OSX on anything it chooses. The argument will be that Apple has no right to prevent Psystar acting as an agent of a purchaser.
In this capacity, it procures a retail copy of OSX, which is freely available on the retail market, it then installs it on the customer's behalf in a computer of the customer's choice, just as it would install Linux or Windows. What exactly about this requires Apple to license Psystar to make clones? If this is making clones, why does it require Apple's permission at all: that is the question. After all, if Psystar were to buy retail copies of Windows on a customer's behalf, or OEM ones for that matter, and install them in hardware of the customer's choice, what say would Microsoft have in the matter? If it were to procure retail copies of Solaris for x86, does anyone doubt it would have the right to install them on hardware of the customer's choice?
I still suspect that what Apple is going to have to prove is that it has the right to prevent, by conditions of sale, a customer either himself personally or through an agent, buying a retail copy of OSX, and then installing it on non-Apple branded hardware. I don't see that the filing approaches proving this. And its going to be real tough. What the filing seems to prove, if anything, is that Apple does not have any obligation to sell OSX at retail or through any particular channel, or in partnership with any particular organization. Well yes, that was never in doubt.
What was in doubt was whether, having sold it at retail, it could dictate what buyers, either directly or through an employed agent, installed it on.
Not the least difficult thing about this is going to be that the Apple and non-Apple branded hardware are identical except for the case. Same main boards, same memory, same disks, same processors, same opticals, graphics and sound cards. So somewhow Apple is going to have to show that it is entitled to enforce a post sales restriction on use that does not stipulate even what hardware the customer can install his retail purchase on, no it only stipulates where that hardware was sourced.
Color me sceptical. You have to imagine, lets say, an auto parts case. GM, lets say, buys Firestone tyres and equips a car with them. Now, by condition of sale, it forbids the buyer to use any other tires than Firestone ones. This, maybe, it might have a rational case for, and maybe could get away with, or at least argue a defense for. But it goes further. It says, you have to buy those Firestone tires from us, despite the fact they are freely available, identical ones, on every street corner. You may not buy them. Don't believe it would fly.
But, we will see. Going to get very interesting. By the way, what will be even more interesting will be the case of the usb stick from efi-x or the plethora of imitators who will probably appear shortly. Now how are they going to argue that one? Here it is in pure form, the user buys a retail product and then uses it in a way the maker does not like. Can the maker still sell at retail, but by conditions on sale forbid that use? I don't believe it. In a sense, Psystar has this as a fallback. Just ship the PC, and a usb stick to boot from, and tell the buyer to bring his own copy of OSX. Then what?
Edited 2008-10-03 19:06 UTC
Member since:
2007-05-12
If you ask me, Apple's motion ( http://blogs.zdnet.com/hardware/images/apple_motion_to_dismiss_psys... ) is very soundly researched and reasoned. There are more than 50 similar or relevant cases referenced. It doesn't seem too likely that the court will not dismiss Psystar's counter-case. And I don't see what else can Psystar do to prevent Apple from obliterating them (based on the copyright and trademark infringement claims ), or at least delay it. Tough break, Psystar.