We’ve got some news in the Apple vs. Psystar tragedy that’s been unfolding before our eyes for months now. We all know the gist: Psystar sells machines with Mac OS X pre-installed, while the EULA states that’s not allowed. Apple then took this stuff to court, and in the meantime, Psystar went into Chapter 11 Bankruptcy protection. The news today is that Apple has filed a complaint stating that this Chapter 11 thing is just a shield that allows Psystar to continue its business practices, which Apple deems as illegal.
The motion from Apple asks that the court have the legal proceedings against Psystar continue despite the clone maker being under Chapter 11 Bankruptcy Protection. Under Chapter 11, legal proceedings are put on hold (‘stay’), but at the same time, Psystar can continue to sell Mac clones, or, as Apple puts it, “knock-off computers that are designed to run, without permission, a modified version of Apple’s proprietary operating system” (you can run Mac OS X unmodified on a non-Apple labelled computer too, of course).
Apple’s motion actually kind of makes a lot of sense. The discovery process revealed that 80% of Psystar’s sales consists of Mac clones. Chapter 11 is meant for reorganising a company to make it a viable business going forward, but without any definitive court statement about whether or not selling Mac clones is legal, what would the small company reorganise if Apple prevails with its claim that Psystar is committing copyright and trademark infringement? “The Debtor has no legitimate property rights in an infringing product and cannot pursue reorganization of its business affairs based on the sale of products that violates applicable non-bankruptcy law,” Apple’s motion argues.
While I stand by Psystar in all this simply because I don’t believe an EULA should be able to impose post-sale restrictions (especially not silly ones), this motion by Apple has a lot of merit. It’s kind of weird that Psystar can continue to sell Mac clones, but not be sued for it because they’re under Chapter 11.
Another funny tidbit is that Apple draws a comparison between this case and the SCO vs. Novell one. In that case, Novell too motioned for the continuationg of litigation even after SCO went Chapter 11 – Novell’s motion was accepted.
To be fair, before complaining about Apple’s EULA, maybe we should also take a close look at Psystar’s own EULA. PJâ€™s/Groklaw skill at dismantling the â€œopen source freedom fighterâ€ myth that has grown around the very few Psystar supporters is superb. Some of the most interesting bits:
(…) What about trademarks? Psystar keeps those all for itself, revealing themselves as lovers of IP rights in all their forms, so long as Psystar is the beneficiary:
10. Trademarks. This License does not grant any rights to use the trademarks or trade names â€œPsystarâ€, â€œPsystar Corporationâ€, â€œOpen Computerâ€, â€œOpenProâ€, â€œOpen Computingâ€, â€œOpenServâ€ or any other trademarks, service marks, logos or trade names belonging to Psystar (collectively â€œPsystar Marksâ€) or to any trademark, service mark, logo or trade name belonging to any Contributor. You agree not to use any Psystar Marks in or as part of the name of products derived from the Original Code or to endorse or promote products derived from the Original Code other than as expressly permitted by and in strict compliance at all times with Psystarâ€™s third party trademark usage guidelines which are posted at http://www.psystar.com/legal/guidelinesfor3rdparties.html.
So, let me get this straight. They can sell stuff using Appleâ€™s trademarks, and yours, but woe betide us if we use Psystarâ€™s? Anybody note an imbalance in the universe here? But I saved the best for last:
11. Ownership. Subject to the licenses granted under this License, each Contributor retains all rights, title and interest in and to any Modifications made by such Contributor. Psystar retains all rights, title and interest in and to the Original Code and any Modifications made by or on behalf of Psystar (â€Psystar Modificationsâ€), and such Psystar Modifications will not be automatically subject to this License. Psystar may, at its sole discretion, choose to license such Psystar Modifications under this License, or on different terms from those contained in this License or may choose not to license them at allâ€¦.
Well, well. You gave them rights, but when itâ€™s their turn, itâ€™s maybe they will, and maybe they wonâ€™t. They might not license their stuff at all? And *Apple* is a meanie because it has license terms? Puh lease.
And one last cherry on top, Exhibit A, includes this term:
This file contains Original Code and/or Modifications of Original Code as defined in and that are subject to the Psystar Public License Version 1.0 (the â€˜Licenseâ€™). You may not use this file except in compliance with the License. Please obtain a copy of the License at http://www.psystar.com/opensource/ppl/ and read it before using this file.
You have to comply with Psystarâ€™s license or you canâ€™t use the code, even if you didnâ€™t say I agree? Well, I declare.
Psystar is promoting Open Source â€œin every way possible?â€ Thatâ€™s what they told us [Google the license by name], before they revamped their web site.
And Psystar is fighting to prove EULAs are from the devil?
I think not, mâ€™lords.
That flushing sound you hear is any last remaining vestige of Psystarâ€™s credibility going down the toilet (…)
– Groklaw’s full article : http://www.groklaw.net/article.php?story=20081204231414746
– Psystar Public Licence : http://psystar.com/opensource/ppl/
Regarding Thom’s article, I do agree that Apple’s motion makes a whole lot of sense.
Edited 2009-06-13 12:04 UTC