We already had the news about Psystar's Rebel EFI possibly including open source code, but now we have another story which doesn't really seem to bode well for the small Florida clone maker. Gizmodo has a story on an interesting customer experience.
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Member since:2006-05-26
The unique portion of OSX is.... Aqua, and some of the Core Frameworks: otherwise, it's another certified Unix OS variant with a pretty face, and the underlying OS itself is completely open source and available for free, just not Aqua and all those Core Frameworks.
As such, your argument is senseless for the OS as a whole, and all Aqua is, is a very pretty (depending on the eye/mousing/keyboard habits of the beholder) window manager on top of a solid certified Unix, of which Apple absolutely has zero monopoly over window managers (you could put just X over the OSX kernel, or any other window managers and frameworks, no problem) for any OS, including OSX. Next, you'll be telling me the people of KDE have a monopoly over KDE, because they're the only ones with the rights to claim they have the power: well, that's not an exact comparison, true, because KDE is fully OSS, and downloadable and installable on... yes, OSX in addition to other systems, including Linux, which is not *quite* a Unix, but also other true certifiable Unix OSes.
There's absolutely nothing stopping Psystar (not even Apple!) from taking Darwin and creating their own competitor to Aqua and the associated frameworks, and nobody would get upset, except for anyone insisting Apple must give their hardware/software combination unfair labels and restrictions as to what they can do with it, on the specious argument that Apple is the only one that can sell OSX and run it on their hardware. Well, if they were to try to do that to run Mac OSX software, sure, they could legally do it: but it'd likely take them at least as long as Haiku has taken thus far to get to where the user space of OSX is now, and by then, who knows what might have changed? Would you still whine that Apple had a monopoly? (Rhetorical question 
)
Member since:2005-07-24
None of that matters one lick.
The ability to recreate or inter-operate is not at issue. The issue is to utilize copies purchased, legally, at retail, in ways already protected by law.
MacOS X is a product existing in the retail market space and is governed by the laws of the jurisdictions in which it is sold. In law, it is NOT the sum of its constituent parts. It is a singularity.
Apple's assertion of exclusive access to MacOS X is without merit should it choose to sell copies on the open market as it has done.
Sure, they can limit MacOS X to only Apple-made machines. But they have to do so correctly. The U.S. does not permit automatic, non-elective, non-signatory restrictive terms of use contracts. Period. And that is a good thing. Seriously.
They have made a move in the right direction by calling the latest iteration of MacOS X an 'upgrade,' but have failed to provide additional value, which will ( well, should, anyway ) lead to some problems for them as they attempt to force restrictions on consumers' rights. The law is often written by the emerging consensus of a market or community, the general definition of 'upgrade' as pertaining to an iteration of a line of computer software will be utilized.
Considering the historical presence of full-fledged versions of MacOS X, pricing and value trends will be determined in order to calculate the value of the 'upgrade' version. In this test new versions of MacOS X will fail - unless Apple were to show an improved value over existing prices.
Which means, Apple, in the end, should create a "full version" at the $289 price point, and keep the upgrade version at the price of the previous version. The upgrade has a ( legal ) caveat: "Part of the price of this copy of MacOS X is included in your Apple-branded computer, usage restrictions apply."
The full version will have no limits of any kind, save for one: "Apple product support is included in the price of a Macintosh computer system, support is not included in the price of MacOS X."
Done.
Honestly, though, in the end, the problem is not what Apple wants to do, but the very fact that they did not start out that way.
If, all along, MacOS X was properly distinguished as a Macintosh software upgrade, then this problem would be a bit easier to sort out. EULA restrictions can, often, be enforced when price subsidies are involved.
Who knows, the courts may even find that Apple was forthcoming enough in the retail marketplace to not misrepresent MacOS X as a full-version operating system, but instead a Macintosh System Software Update.
In which case Psystar is using subsidized software, illegally.
Of course, if you look at the MacOS X retail box, you will find that the courts are not too likely to see things that way. Prominence is of primary importance. If they simply had the words "Macintosh System Software Upgrade" on the front, we would be laughing at Psystar rather than debating the merits of EULAs and how a rather small company can still be a monopoly.
--The loon
Member since:2005-08-12
You have absolutely no idea of what you're talking about.
You can't make up your own definitions.
It's already been established that Apple's OS does NOT constitute its own market.
Please stick to facts and law.
I suppose that means actually understanding the law, something which you don't.
Member since:2005-07-24
I do, I'm not, it has not, I am, and I do better than you know.
The simple definition of monopoly: "A situation in which a single company owns all or nearly all of the market for a given type of product or service."
As you should know, MacOS X has spawned its very own market as soon as it was sold at retail. Just like Windows 7, inflatable diapers, or purple Pez dispensers. No court has said otherwise as a generality, as that is one of the primary arguments posed by Psystar and a denial made by Apple.
Apple is dead wrong. If the item can be purchased legally, by even one person, then that item has spawned its own market. Furthermore, if the item is sold without pre-condition at retail, it is then subject to the laws governing the retail market-place in the corresponding jurisdiction.
Once a market moves to the national stage, it is governed by the laws of the federal government and is then subject to anti-trust legislation.
One violation of anti-trust and copyright laws is post-conditions (after sale) governing usage of a copy of a copyrighted work ( such as a book ).
If Microsoft sold Windows 7 at retail, but only allowed Hewlett Packard to install it legally, suing every other company that deployed Windows 7, that would be illegal as well.
And don't be like all the other idiots who somehow think that Microsoft's OEM licensing program is designed to grant the right to distribute Windows, it is not. It is designed to provide, with restriction, low-cost Windows licenses for bulk sale.
While these contracts are legal, it has been contended that many clauses within them may be illegal due to anti-competitive measures which leverage the Microsoft monopoly on the OEM Operating System market. Microsoft, technically, doesn't have a monopoly on the Windows market.
Apple contends that only they can use their OS, or owners of Macintosh computers. Microsoft makes no such claim, because it would be illegal for a product in the retail market-place. Neither are required to sale at retail, but Microsoft chose to do so, and Apple accidentally did so. Accidents count the same.
They both sell at retail and are governed by the same laws. Microsoft and Apple both have a monopoly on a given market. Microsoft on the PC Operating System market ( but not the Windows market, mind you ), and Apple on the MacOS X market ( a market which Apple is now working to destroy as indicated by the Snow Leopard release method (upgrade from Leopard only) ).
Definitions:
Monopoly: ( see if this rings a bell )
An economic advantage held by one or more persons or companies deriving from the exclusive power to carry on a particular business or trade or to manufacture and sell a particular item, thereby suppressing competition and allowing such persons or companies to raise the price of a product or service substantially above the price that would be established by a free market.
A monopoly is not automatically illegal.
It required Apple to sell MacOS X without pre-condition, on the open market, THEN claiming that MacOS X was exclusively a Macintosh System Software Upgrade. But you can't say that when you sell your product as a full-fledged operating system.
You can't. That is false marketing. And it is illegal. Intentions or not.
--The loon
Edited 2009-11-07 18:20 UTC
Member since:
2005-07-24
It is, and has been for many many years, illegal for a company with a monopoly to price products aggressively with the sole intent to price another competitor into oblivion.
Generally speaking, the monopoly-holding company would need to drop prices below costs for absolute violation of anti-trust law. However, any flexing of monopolistic powers aimed at absolutely destroying the competition is generally illegal.
Be that aggressive contract terms, hiding of certain interoperability information, or what have you.
The rules change once a monopoly is established. They change once again once a court rules that an illegal monopoly exists.
Apple [[c][w]]ould be considered a monopoly based merely on the fact that they have a full monopoly on MacOS X and have been very aggressive in thwarting competition. Thusly, we fall back to sales at retail and Apple's responsibilities in that arena, which is another topic.
Take the case of Microsoft, for years they used simple trickery and targeted price cuts ( bulk-deals, contracts, OEMs ) to build and maintain market superiority. All well and good, except that on more than one occasion those actions were ramped up to target competitors, thereby placing Microsoft into the position of an illegal monopolist.
Apple is doing exactly the same, on a different scale. Sure, they can drop their prices to even make a loss, but if they do so specifically to destroy a competitor, they are violating anti-trust law.
More often than not these cases are handled in the back room under negotiated mediation sessions ( of which I have been a party - albeit not in regards to anti-trust ), so very little case law even exists.
Indeed, Microsoft is almost the only modern example of this nature. And Bush's terrible Attorneys General destroyed millions of dollars in efforts to produce results, leaving even more questions officially unanswered.
In the end, however, blatantly illegal or not, it all depends on one person wearing a black robe to agree that Apple's market position constitutes a monopoly before much of anything can be done in terms of judicial action. Until then, it would merely be fodder in the hands of the enemy and their lawyers.
--The loon