Psystar to countersue Apple for antitrust violations

[pdjudd]

why doesn't Apple open up OSX?

Because they do not want to. Just like Microsoft doesn't open up their OS. They don't want to nor are they under any obligation to do so to meet the whims of the market. There are operating systems out there that advertise themselves as open. They readily compete in the market and Apple and Microsoft do not stop people from using those systems.

There are only two ways that Apple distributes their OS:
1) Preinstalled on a Mac (Apple labeled computer)
2) As an update with the requisite being that you have part one and you meet the system requirements.

Apple does not sell a full version for generic computers nor do they sell an OEM version just like they don't sell a jewel encrusted Mac despite people wanting it. Apple does not have to accommodate markets that they do not wish to sell it to. Just like you cannot buy the ProTools software without the hardware to accompany it.

 

[r.j.s]

Tying is not always illegal - normally, one of the required products must be undesirable, or completely unrelated.

Buying computer hardware to get software is neither unrelated or undesirable.

 

[pdjudd]

Tying is not always illegal - normally, one of the required products must be undesirable, or completely unrelated.

Buying computer hardware to get software is neither unrelated or undesirable.

Exactly. Even so, You do not have to run OSX on a Mac, you can run Windows, Linux, etcetera.

 

[Wondercow]

. . .

Thank you for bringing some much-needed clarity to this.

 

[macsmurf]

This isn't even a valid question. Replace OS X with any piece of software and see what you get. It's too loaded to be useful.

Ok.

Really? So if I buy Microsoft Office I don't have to buy another product (from the same company) in order to use it?

No, I don't. Easy enough.

Apple has always sold the Macintosh as one product (except in the clone years), they choose to sell OS X in order for owners of older computers to upgrade. If they didn't you would have to buy a brand new Mac every time a new OS came out if you wanted the latest and greatest.

Whatever Apple reasons are for selling OS X separately, the EULA does not state that it is an upgrade. You can legally use it on any Apple-branded hardware regardless of whether or not you already own a license to OS X.

You can legally buy it whether or not you own a license or an Apple branded computer. However, in order to buy it, you must agree to not use it with any other product than an Apple branded computer. That fits the informal definition of tying, at least according to Wikipedia. Whether it is illegal according to U. S. law is a matter for the courts.

 

[macsmurf]

Yes, because the computer is always licensed to run its original shipping software, which makes you eligible to purchase any subsequent version and install it.

No, there is no requirement to own an Apple computer in order to buy OS X. However, if there where, it would still be tying.

 

[r.j.s]

Whatever Apple reasons are for selling OS X separately, the EULA does not state that it is an upgrade. You can legally use it on any Apple-branded hardware regardless of whether or not you already own a license to OS X.

But all Apple-branded hardware capable of running Leopard already have a valid license to OS X.

You can legally buy it whether or not you own a license or an Apple branded computer. However, in order to buy it, you must agree to not use it with any other product than an Apple branded computer. That fits the informal definition of tying, at least according to Wikipedia. Whether it is illegal according to U. S. law is a matter for the courts.

I don't see Apple (or any other software company) allowing the EULA to be tested in court.

This has already been mentioned, but in order to use certain pro audio/video software you must buy hardware from the same company. Is that illegal tying? How about iLife? You can buy that on the shelf, but in order to use it, you must buy a Mac. Illegal tying?

 

[macsmurf]

The quoted sentence:

Selling a product on the condition that you must agree to buy another product from the same company in order to use it isn't bundling. It's tying and may be illegal according to U.S. law.

As another poster pointed out I must purchase a Nintendo Wii in order to use Wii game. There are myriad other examples of companies that tie products together and do so legally.

So in what way does your example contradict my statement?

 

[Wondercow]

Ok.

Really? So if I buy Microsoft Office I don't have to buy another product (from the same company) in order to use it?

No, I don't. Easy enough.

You do if you buy the Windows version.

Whatever Apple reasons are for selling OS X separately, the EULA does not state that it is an upgrade. You can legally use it on any Apple-branded hardware regardless of whether or not you already own a license to OS X.

You can legally buy it whether or not you own a license or an Apple branded computer. However, in order to buy it, you must agree to not use it with any other product than an Apple branded computer. That fits the informal definition of tying, at least according to Wikipedia. Whether it is illegal according to U. S. law is a matter for the courts.

I'll just reference the attorney's post (#454)

 

[macsmurf]

Tying is not always illegal - normally, one of the required products must be undesirable, or completely unrelated.

Buying computer hardware to get software is neither unrelated or undesirable.

Nobody is saying that tying is always illegal. However, according to wikipedia the product can be related in some fashion and the tying would still be illegal, so it seems not to be a requirement that one product is completely related to the other.

 

[r.j.s]

Nobody is saying that tying is always illegal. However, according to wikipedia the product can be related in some fashion and the tying would still be illegal, so it seems not to be a requirement that one product is completely related to the other.

I did say normally, not always.

 

[GRB]

Nope. Those hypothetical facts neither support a monopoly nor an illegal monopoly.

Sure they do. It's part of the reason why the Sirius and XM merger was delayed for as long as it was, because there was the argument that doing so would create a monopoly in the satellite radio area, even though they would still form only a small part of the overall radio market. In the end it was believed that the latter should prevail in that case; in this one it remains to be seen. [/QUOTE]

Nor does Apple.

Sure they do. They tell me I can't get a third party computer to use with my copy of Mac OSX.

It is an upgrade as a matter of law. It is not possible to buy a bare system for its use. A Macintosh is licensed as a matter of fact to run the OS with which it was originally packaged--that license never parts from the system. Any subsequent license is predicated on the prior license, by virtue of being restricted to Apple-labeled systems.

One could argue that my old Newton is "Apple hardware" and thus can use OSX legally should I manage to squeeze it on there. Also, the fact they mention "Apple hardware" as opposed to "Mac OSX license" is a critical difference. By basing it solely on "Apple hardware" they unreasonably discriminate against other third party hardware manufacturers like Psystar.

A business Apple will always own 100% of.

Should they win this suit.

Yes, they do, in both cases. Ford does indeed list restrictions--look at a purchase agreement for a car sometime. Even something simple, like an alarm clock, only grants you the rights you purchase.

A seller has the right to set whatever terms it chooses on the sale, particularly where pricing is set based on preexisting circumstances. Since you have no rights to the product until Apple gives them to you, you have nothing more than what is given. The scope of what is being sold to you is clear: a license to use and possess OS X on a Macintosh system. It's the same with a branded-disc sold by Dell for $20--it's Windows, but only for use on your qualifying Dell. Any other use is outside of the rights you own, and you have to turn elsewhere to get those rights. If what you want is not for sale, too bad. That's the market at work.

Incorect. As I mentioned with my Rick Wagoner example, the courts can always declare sections of contracts void should they find them contradictory to other laws. In this case, Psystar hopes that Apple's restriction to Apple hardware violates antitrust laws. A contract is not a clear slate to draw up an agreement to violate whatever laws you want.

Also, Dell sells those $20 discs to you (and only to you) only because you've already paid for a full license of Windows when you first bought your computer ($150 or whatever it is). The $20 fee isn't for another license, it's for Dell to ship you off one of their custom CDs.

 

[pdjudd]

Whatever Apple reasons are for selling OS X separately, the EULA does not state that it is an upgrade. You can legally use it on any Apple-branded hardware regardless of whether or not you already own a license to OS X.

Close. Ownership of a Apple branded hardware device (which is a trademarked thing too) automatically entails you to a license of OSX. The hard drive can be blank for all Apple care's - having a Mac is the key.

You can legally buy it whether or not you own a license or an Apple branded computer. However, in order to buy it, you must agree to not use it with any other product than an Apple branded computer. That fits the informal definition of tying, at least according to Wikipedia. Whether it is illegal according to U. S. law is a matter for the courts.

I wouldn't call it tying if the two are marketed as one product. A valid example is Pro Tools. You cannot buy the software without the hardware (and they do enforce it). If this were illegal tying, ProTools would have been forced to drop this years ago.

Just because Apple doesn't engage in draconian technological means doesn't change the fact that there is an agreement in place.

 

[macsmurf]

You do if you buy the Windows version.

Now you're just being silly.

I'll just reference the attorney's post (#454)

I didn't know he was an attorney and I don't agree with him (not when it comes to the law but the argument to support that statement), but I'm not gonna discuss that with him by proxy.

 

[macsmurf]

Close. Ownership of a Apple branded hardware device (which is a trademarked thing too) automatically entails you to a license of OSX. The hard drive can be blank for all Apple care's - having a Mac is the key.

No it doesn't. It entitles you to use the product for which you have a license, if you buy it, either seperately or by bying a computer from Apple.

I wouldn't call it tying if the two are marketed as one product. A valid example is Pro Tools. You cannot buy the software without the hardware (and they do enforce it). If this were illegal tying, ProTools would have been forced to drop this years ago.

Just because Apple doesn't engage in draconian technological means doesn't change the fact that there is an agreement in place.

Well, as I said many posts ago that's the counterargument and the courts will have to decide if Mac computers + OS X is one product or two.

 

[pdjudd]

Also, Dell sells those $20 discs to you (and only to you) only because you've already paid for a full license of Windows when you first bought your computer ($150 or whatever it is). The $20 fee isn't for another license, it's for Dell to ship you off one of their custom CDs.

Which is what Apple does as well. You buying a Mac automatically grants you a license for OSX. Apple just doesn't sell those licenses separately. You cannot force a company to sell a product that they do not wish to. Microsoft cannot be forced to sell a Mac OS version of Outlook that is on parity if they do not want to.

 

[Wondercow]

So in what way does your example contradict my statement?

The second reply doesn't contradict you due to the way in which it was written. If I had said "bundle" instead of "tie", however, it would:

As another poster pointed out I must purchase a Nintendo Wii in order to use Wii game. There are myriad other examples of companies that tie products together and do so legally.

If you're referring to my first reply it contradicts you in that your statement was an oversimplification and, as above, selling two products together can be "bundling". Also, it's incorrect to sate that it "may be illegal": sometimes there's no doubt as to the legality (as in the game/console example).

 

[Wondercow]

Now you're just being silly.

Why; just because I proved you wrong?

 

[macsmurf]

I did say normally, not always.

Fair enough

 

[zombitronic]

Ok, when I open up my manual of any PSP or xbox game, this is nowhere to be found... hey, go figure: when I researched this this is because my country DOES protect consumers from monopolizing greedy corporations! So I didn't get the facts wrong, we just live in different legal systems

This was my quote from the Mario Galaxy manual:

This Nintendo game is not designed for use with any unauthorized device. Use of any such device will invalidate your Nintendo product warranty. Copying of any Nintendo game is illegal and is strictly prohibited by domestic and international intellectual property laws. “Back-up” or “archival” copies are not authorized and are not necessary to protect your software. Violators will be prosecuted.

So you're saying that where you live, Nintendo is okay with you using their games on clone systems? Not only this, but copying their games is authorized?

Where do you live, and can anyone else verify this?

 

[macsmurf]

It is an upgrade as a matter of law. It is not possible to buy a bare system for its use. A Macintosh is licensed as a matter of fact to run the OS with which it was originally packaged--that license never parts from the system. Any subsequent license is predicated on the prior license, by virtue of being restricted to Apple-labeled systems.

Let's say I own a macbook and I want to sell it to someone else. This other person agrees to buy my macbook but will not agree to the OS X software license. In fact, he doesn't want the restore discs at all and plans to install windows on the computer. Can I still sell him my macbook with a wiped hard drive without being in breach of the EULA? It seems I can, according to the EULA. Of course, I cannot use the product without being in breach of the EULA unless I reacquire the Macbook, but that seems to be irrelevant.

Now let's say this person changes his mind and goes out and buys OS X. Can he install it on his macbook? It seems he can, according to the EULA, and yet he never had a license in the first place.

An even simpler example: I sell my Macbook with OS X to another person but some of the printed materials have gone missing. The buyer agrees to adhere to the EULA, but since me transfering my rights without all the components of OS X is in breach of the EULA, I'm not allowed to. The EULA does not prohibit me from selling the Macbook, though, so I do that (sans OS X) and the buyer subsequently buys OS X and installs it on his Macbook. What is the breach here?

 

[ajthomason]

Seeing as everyone is now focusing on the EULA and how it can only be installed on Apple systems.

Answer this for me: What makes an apple system?

If I buy a MacBook Pro and replace the hard drive, is it now no longer an apple system? how about if I replace the logic board? It is still a MacBook Pro, isn't it even though the logic board isn't made by apple (I put a generic motherboard in)? What if I replace every single component in it until the case is the only original part? Is it still a MacBook Pro and thus an Apple Product?

Taking it a stage further, if I buy all the components of a Mac Pro and put them together myself, is it now an Apple system?

 

[r.j.s]

Let's say i own a macbook and I want to sell it to someone else. This other person agrees to buy my macbook but will not agree to the OS X software license. In fact, he doesn't want the restore discs at all and plans to install windows on the computer. Can I still sell him my macbook with a wiped hard drive without being in breach of the EULA? It seems I can, according to the EULA. Of course, I cannot use the product without being in breach of the EULA unless I reacquire the Macbook, but that seems to be irrelevant.

You're right because the license key lies with the Apple hardware, not the OS X DVD.

 

[r.j.s]

Seeing as everyone is now focusing on the EULA and how it can only be installed on Apple systems.

Answer this for me: What makes an apple system?

If I buy a MacBook Pro and replace the hard drive, is it now no longer an apple system? how about if I replace the logic board? It is still a MacBook Pro, isn't it even though the logic board isn't made by apple (I put a generic motherboard in)? What if I replace every single component in it until the case is the only original part? Is it still a MacBook Pro and thus an Apple Product?

You could buy all the broken Macs on ebay for their cases, start making those systems, sell them commercially and find out from Apple legal.

I'd say 50%, if you replace more than 50% of the components, then it is no longer an Apple system.

 

[ajthomason]

You could buy all the broken Macs on ebay for their cases, start making those systems, sell them commercially and find out from Apple legal.

I'd say 50%, if you replace more than 50% of the components, then it is no longer an Apple system.

That means that I can buy a Mac Pro case on ebay with an original logic board, then buy a Broadcom wireless card, Seagate HDs and all the other products that are found in Mac Pros although none of them are actually made by apple... and Voilla! I have a genuine Apple product!