Psystar to countersue Apple for antitrust violations

[IJ Reilly]

Well, if the EULA is irrelevant, then obviously Psytar can't use it to make any points. In that case, I would think it would be extremely difficult to prove that the hardware and software is separate, because no such iron-clad definition exist, technical or otherwise. On the other hand, Microsoft was unable to prove that Internet Explorer was part of the OS, but that may not be relevant in this case.

I don't know that the EULA is irrelevant, but it doesn't have any bearing that I can see on the antitrust issue, and I don't see where they have any case for invalidating the EULA other than their claim that they ought to be able to resell OSX and complete with Apple's hardware products.

Microsoft's problem was that they deliberately "integrated" IE into Windows for the express purpose of harming a competitor in the browser market.

 

[macsmurf]

What's your point? OS X is NOT a mobile or an embedded OS.

Although I agree that Apple simply aren't doing the smart thing here, the precise definition of an embedded OS is somewhat arbitrary and largely a matter of convenience. While it would be ludicrous to call OS X an embedded system in a technical sense, that does not necessarily mean that Apple cannot defend a similar claim legally (at least I don't think so). I've seen non-sensical technical arguments being succesfully defended in the courts of my country, so I have no reason to believe that it won't be possible to make the argument that OS X and Apple hardware are inseparable from a legal POV, even though they clearly are from a technical POV.

 

[Stratus Fear]

[lots of stuff]

Apple needs other models of machines like GM needs the ridiculous number of models of cars it has (somewhat off-topic: this is why Chysler and GM have dropped brand names over the years, to tighten up their product line). They don't need to be a jack-of-all-trades company; that's what the other PC OEMs are for. The point is, if you have a value proposition that sets you apart from the rest of your industry (as Apple does) you don't muddy your own waters by trying to cross into what the rest of the industry is doing and spread your resources thin on your existing products. That's recipe for hurting what makes you different, hurting your competitive advantage. Everyone says the reason that Apple doesn't make beige box equivalents is because they're stubborn. That's hardly the case when you consider the above. If what they offer isn't suitable to you, you need to look at the substitutes and stop expecting a company to jeopardize its obviously successful business model to make something for a small subset of people. If the hardware is that important to you, then deal with Windows. If the software is more important, deal with an iMac. Can't please everybody, but that's the world we live in.

That's not a fanboy argument -- that's just how business works.

 

[matticus008]

There are two products, and I think I've made it abundantly clear that OS X and Apple Hardware are, in fact, separate.

That in and of itself doesn't get you anywhere, especially considering that Apple computers and OS X are naturally related in the public consciousness and in licensing. OS X is a feature of Apple Macintosh systems. That it could be separated technically is not really an issue.

But that is not true. I can use OS X without having an Apple label on my computer.

Not legally, you can't.

If there is no benefit for the consumer you're abusing power either way.

But there is a benefit and there is not market power, so you're confused.

And if they never contacted Apple and Apple therefore never refused to give them a license, their claim that Apple's refusal is anti-competitive has nothing to do with this case.

One thing has nothing to do with the other, and both are very much part of the case. One is a defense to an infringement claim--a bad one, but an attempt nonetheless. The other is an accusation of unfair competition, which is not a defense to the infringement claim, but could, if successful, invalidate Apple's case by removing their cause of action.

Actually, I don't have to do anything. If you think the assertion of the Wikipedia is wrong, I invite you to do your own research and look at the cases referenced.

You should instead finish reading the Wikipedia article, at least. The section you quoted refers to the past. "Any departure from perfect competition" has not been the gravamen for fifty years.

Yes, but I am referring to the often confused economic and legal definitions of monopoly.

If they're confused, it's because of misuse by those not sufficiently immersed in the field. You said:

""As I said in another thread, in order for Psystar to have antitrust case, they must prove that "Apple Macintosh Computers" are a separate market over which Apple has a monopoly."

The reality is that Apple computers neither need to be a separate market, nor does Apple need a monopoly in order to violate antitrust law. The summation you offer is simply incorrect. A working knowledge of antitrust law is important, and it is more difficult to come by than you think, as evidenced by your misconceptions above.

The law talks of monopolization but it does so in terms of abuses of market power, and having market power to abuse does not require a dictionary-definition monopoly.

No, the law talks of monopolization and market power, two distinct legal constructions. Abuse of market power and abuse of monopoly power are not the same thing.

So for purposes of this and most other discussions about antitrust, I think it's helpful to dismiss the term "monopoly" since it's such a loaded word with multiple and poorly understood definitions. What antitrust law is about fundamentally is abuses of market power.

No. What antitrust law is fundamentally about is unfair competition. Dismissing an aspect of that because it is misunderstood by the laity, including yourself, is not helpful. It is not helpful, either, to make such egregious terminology mistakes while claiming it's not necessary to be a lawyer to speak with authority. The point is a simple correction. A lecture in attempt to distance yourself from that statement isn't necessary.

Contrary to "upgrade" claims, the OS is not at all limited nor does it check for OS X to have been installed previously.

This proves nothing. There is no such requirement than an upgrade perform a check at all, especially when that function is unnecessary when the licensing makes it clear. The idea that you should be stopped from breaking the law because you will freely flaunt it is what brought product activation and DRM--and you're arguing that it's necessary, not only practically, but legally. It's not.

The question is at WHAT POINT does Apple think its Operating System is so special that it cannot run on non-Apple hardware?

At the point where you did not purchase a Macintosh in the past to make you eligible to operate OS X.

This proves beyond the shadow of a doubt that in 2008, there is absolutely NOTHING "special" about Apple hardware in regards to running OS X.

The hardware doesn't have to be "special". A Dell Windows disc and an HP Windows disc might be used on the same hardware components. That doesn't alter the terms of their legality--the label is key, as it makes you eligible for the special licensing deal.

Thus, Apple is fully admitting that they are being non-competitive in the hardware arena by using their OS as leverage to force you to buy THEIR generic Intel hardware IF you want to run OS X.

Actually, that's the very definition of competitive--having something that makes people want your products over someone else's. As long as they are free to choose alternatives, there's nothing wrong. You're not forced to use OS X and you're not forced to buy a Mac. If you want one of the features of a Mac that competitors can't match on their own, you need a Mac to get it. Microsoft is free to make Windows a better OS X competitor. Ubuntu can do the same.

Moreover, a tying allegation requires that the party's tying product be abused based on its market power--in other words, the OS market. Apple has no market power in desktop-class operating systems. It has a <10% market share with several competitors, the pricing of its OS has no impact on the pricing of competitors, and none of its practices affect the entry barrier for new operating systems. As a matter of law, restraining competition in the allegedly tied product (the computer) is a non-starter.

If you try to adapt the argument, you fail, since you are free to install Windows or any other compatible OS on your Mac, and the price of each Mac is well within the market range. It's not anticompetitive not to be the cheapest approximation of a product.

So, once again, the problem with comparing current Macs to say hardware from Dell (ignoring the operating system argument for just a moment) is that Apple has large gaping holes in its platform relative to those systems and its NOT propriety equipment we're talking about.

No, we're talking about a market in which companies are free to ignore your wishes and not make products that fit them, and you are free to find a suitable alternative. Even if it would be extremely easy for a company to please you, they don't have to. If they choose to ignore you and lose the sale, it's their loss, but their choice.

If Apple is not interested in manufacturing such equipment to fill those gaping holes in their lineup, the question becomes why don't they license someone else like Dell to fill those gaps?

Because they choose not to. Because their business model works fine as-is, and the expansion wouldn't necessarily be a net positive. Because they were burned last time with clones. Because Jobs is a control freak. You can invent your own reason, if you like. It's theirs, and if they don't want to sell to you, they don't have to.

Apple has created the "Perfect Storm" to bring about this Psystar business in the first place.

No. A small manufacturer of otherwise indistinguishable and undesirable products just decided to go for broke as a media whore and trading on Apple's name, R&D investment, and exclusive licensing to stimulate sales.

But I for one would like to see as many shelves in places like Best Buy dedicated to Mac software as PC software some day.

Did you ever stop to think that Apple doesn't want that? Just like they maybe don't care about the desktop tower market anymore?

 

[IJ Reilly]

No. What antitrust law is fundamentally about is unfair competition. Dismissing an aspect of that because it is misunderstood by the laity, including yourself, is not helpful. It is not helpful, either, to make such egregious terminology mistakes while claiming it's not necessary to be a lawyer to speak with authority. The point is a simple correction. A lecture in attempt to distance yourself from that statement isn't necessary.

No. I know what antitrust law is "fundamentally about," so you are essentially arguing with yourself. I notice that you give us no examples of the "difference" between the abuse of monopoly power and the abuse of market power. Perhaps if you're going to be so pedantic about it, you might at least explain yourself.

Monopoly is a sloppy term. I sometimes lapse into using myself, but it is not a very useful way of understanding this issue. For the record, monopoly is one form of market power. Since true monopolies per the definition in economics rarely exist, the laws address the issue of abuse of market power, which can and generally does occur without a the presence of any monopoly. The overarching concept in antitrust law is the abuse of market power, of which monopoly is only one (rare) kind.

 

[CWallace]

Apple needs other models of machines like GM needs the ridiculous number of models of cars it has...

It is not that Apple does not need more models.

It is that Apple is doing very well with the model mix it has now, and new models added would need to complement the existing mix - not compete with it.

All Apple has to do is knock $300 off the Mac Pro price and you're back to the $1999 single CPU model and $2499 dual-CPU model that existed for the G4 and G5 PowerMac days.

Why have they not done that? Likely because the demand for the Mac Pro is stable enough that lowering the price would not raise sales appreciably.

Also, we need to remember that in the PPC days, the largest iMac display was 20" (and that didn't become available until just before 2004). If you wanted/needed a 23" display, you had to buy a PowerMac. That would have put some pressure on Apple to offer an "inexpensive" model to appeal to that clientele. When Apple moved to Intel, a 24" model joined the line-up within the year. So folks no longer needed a tower to have a monitor larger then 20".

 

[Wondercow]

There is no technical reason for it. OS X can clearly run on non Apple-labeled hardware without modification (for some definition of modification).

I still wouldn't call that "artificially tied" since Apple has done that since day one. The Mac OS (with its humble beginnings as "System") was created specifically for Mac computers made by Apple. Many people here argue that because Apple moved to x86 chips there's now nothing stopping OS X from running on any x86 compatible hardware. The obvious implication is that there was something stopping it from running on previous chips, and this is usually claimed to be that other PCs didn't use the same processor as the Macs. This is completely false. Other systems used both the Motorola 68k processors and the PPC processor. Why did no one complain when the Mac OS/System was "artificially tied" to previous hardware? Because it's not artificial; it was designed that way from the get-go.

Heh, I read it and understood it, It didn't help much, but I do appreciate the effort.

Great; I just wanted to make sure you saw it--not because "I took the time to write so you better have read!" but because by the time I hit the submit button you'd already signed off for the day

So in short, I'm confused, but since I'm probably making too many grammatical errors to count anyway, I elected to make my peace with it for the time being.

Not to worry--you're in the same boat as most English speakers

 

[Stratus Fear]

[snip]

I meant more like Apple doesn't need an xMac, etc. but I agree with you.

 

[Counterfit]

In short,

I think there should be a rule against using that phrase in a post which nears the character limit for a single post.

 

[matticus008]

No. I know what antitrust law is "fundamentally about," so you are essentially arguing with yourself.

No. Yet again, your incorrect use of terminology leads you into some self-righteous lecture missing the essential point.

You said: ""As I said in another thread, in order for Psystar to have antitrust case, they must prove that "Apple Macintosh Computers" are a separate market over which Apple has a monopoly." (emphasis added)

It's not a one-off occurrence, but in fact, as you've stated, you've used the term in any number of places incorrectly. That is the end of it--a simple fact requiring no further action on your part--and yet you insist, again, on dragging it out in some protracted spiel instead of simply recognizing that you used the wrong term and may not be as well-versed as you profess.

Neither a separate market nor a monopoly need exist, and market power is not the same as monopoly. Period. Your bizarre insistence on redefining monopoly when the proper term all along was 'market power' is especially odd considering that even if you had said 'market power', the statement would still be incorrect.

I notice that you give us no examples of the "difference" between the abuse of monopoly power and the abuse of market power.

Market power is the power to raise the price above the level of competition without a dropoff in sales. Monopoly power is near-total or total control of a market, including a varying combination of market power, overwhelming market share, exclusionary power, control of supply, control over entry barriers, and the willful acquisition and maintenance of that domination with an intent to restrain trade and/or prevent competitors from having access to the market.

The key difference is that when you complain of abuse of market power, there are always competitors in the market. Abuse of monopoly power is the targeted destruction of competitors by manipulation. You can leverage market power to create a monopoly. In the case of tying, the issue is abuse of market power--any use of the term 'monopoly' is misplaced.

The terms are not interchangeable. Market power can exist at 10% market share; monopoly power generally requires at least 75% market share--and it's possible for market power not to exist even at 90% market share, while 90% share is almost certainly a monopoly by any standard.

Perhaps if you're going to be so pedantic about it, you might at least explain yourself.

You're the one trying to redefine a term to back out of a gaffe. This is a habit that tries my patience.

For the record, monopoly is one form of market power. Since true monopolies per the definition in economics rarely exist

No. A monopoly includes market power. Market power is market power. A monopoly is not a form of market power, but a construct including market power. The notion of "true" "economic" monopolies is completely irrelevant, as the legal definition of monopoly is all that is required here.

The overarching concept in antitrust law is the abuse of market power, of which monopoly is only one (rare) kind.

No. Once again, the overarching concept in antitrust law is unfair competition, of which abuses of monopoly and market power are two types of plausibly unlawful acts.

 

[englishman]

Hmm. This might open up OSX to be installed on a DELL. What thinks??

That's standard these days - runs very well, apparently - and costs little to have a system with a decent spec

http://wiki.osx86project.org/wiki/index.php/HCL_10.5.2/Portables#Dell

 

[macsmurf]

That in and of itself doesn't get you anywhere, especially considering that Apple computers and OS X are naturally related in the public consciousness and in licensing. OS X is a feature of Apple Macintosh systems. That it could be separated technically is not really an issue.

I've talked myself into agreeing with you on this point.

Not legally, you can't.

OK, so what you're saying is that even though it is clearly possible technically, that holds no relevance in the courtroom?

But there is a benefit and there is not market power, so you're confused.

Can you give me any example of unlawful tying that cannot be reduced to promotional tying, as you defined it, where the change in policy does not give compitors and consumers any additional benefits?

Another real life example I can think of is printers. You can get cheap printers but the manufacturer make the money back on ink cartridges. AFAIK, competitors have been able to make third-party ink cartridges, or refill empty cartridges, for years without getting into trouble legally. Shouldn't the printer manufacturers be able to sue these competitors out of existence?

 

[matticus008]

OK, so what you're saying is that even though it is clearly possible technically, that holds no relevance in the courtroom?

Yep. Except in the odd compulsory licensing circumstance, a court does not have the authority to force a company to sell anything in a new channel. The only time it becomes relevant is if the defendant corporation claims that it's not possible for technical reasons, but even that only matters after some violation has been established.

Can you give me any example of unlawful tying that cannot be reduced to promotional tying, as you defined it, where the change in policy does not give compitors and consumers any additional benefits?

Change in what policy?

An example that was quite common in the past was the tying of Bell telephones to telephone service, repeated more recently with cellular providers refusing to activate "outside" (but fully compatible) handsets. Other examples include used car dealerships attempting to force the purchase of an "extended" warranty in order to receive advertised benefits. Perhaps the most common example in the recent past is the attempt to force users into OEM parts/service centers in order to claim warranty services--this is the genesis of Magnuson-Moss. The classic example, though, is with a downstream merchant packaging things together, e.g., shrinkwrapping Harry Potter with some random low-selling title and selling them only together, at a price above MSRP for Harry Potter alone.

AFAIK, competitors have been able to make third-party ink cartridges, or refill empty cartridges, for years without getting into trouble legally. Shouldn't the printer manufacturers be able to sue these competitors out of existence?

You've answered your own question; you just haven't put the pieces together. A third party has been able to independently create a product compatible with the original. To put it into context, if Psystar created its own operating system, based on Darwin for example, they'd be able to sell that, too.

This doesn't have anything to do with antitrust laws, though. The printer manufacturer is free to use that business model, but they're not protected from someone else making something cheap and compatible (assuming, of course, that the work is non-infringing). Competitors selling their own products have nothing to do with it.

To connect this with your first concern, however, consider that HP printers sometimes come with photo editing software. Even if that software could technically work with other printers, and even if HP could sell it as a standalone product, they don't have to, unless HP suddenly has decisive power over the photo editing software market and people have no suitable alternative, because they can't get photo editing software anywhere else--and HP will only sell it with printers.

As long as someone else sells similar photo editing software on its own and HP is just a participant in a varied market, there's no problem, even if someone really wants that particular program with their Canon printer. It's just part of the tradeoff we call "shopping".

 

[IJ Reilly]

No. Yet again, your incorrect use of terminology leads you into some self-righteous lecture missing the essential point.

Sorry, you are still wrong. You have everything pretty much backwards. I acknowledged that I used the term, but your response is little more than nonsense wrapped in insults. I don't know what use you see in dragging the discussion in this direction, but I am not going to follow.

This explanation is fairly good:

http://en.wikipedia.org/wiki/Market_power

 

[LittleGuy1234]

Users are violation too...

People who purchase and use one of units of hardware from Psystar with Mac OS X are in violation. Here is why...

According to the Software License Agreement for Mac OS X. You agree to the following:

2. Permitted License Uses and Restrictions.
A. Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use
or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so.

The SLA can be found here:
http://images.apple.com/legal/sla/docs/macosx105.pdf

 

[Wondercow]

People who purchase and use one of units of hardware from Psystar with Mac OS X are in violation. Here is why...

According to the Software License Agreement for Mac OS X. You agree to the following:

2. Permitted License Uses and Restrictions.
A. Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use
or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so.

Good Lord you're right! In 690 posts across 28 pages why did nobody think of that

 

[r.j.s]

Good Lord you're right! In 690 posts across 28 pages why did nobody think of that

Ease off the newbie, he hasn't even been a member long enough to read that many posts.

 

[IJ Reilly]

Not to belabor the obvious but doesn't the "you" in that clause pertain to the buyer of the software? Or in this case, Psystar?

 

[matticus008]

Sorry, you are still wrong. You have everything pretty much backwards.

Really. We'll turn to your source, Wikipedia: "market power is the ability of a firm to alter the market price of a good or service. A firm with market power can raise prices without losing all customers to competitors."

That is consistent with the legal definition:

the power to raise the price above the level of competition without a dropoff in sales.

It goes on to say: "Market power gives firms the ability to engage in unilateral anti-competitive behavior. Some of the behaviours that firms with market power are accused of engaging in include predatory pricing, product tying, and creation of overcapacity or other barriers to entry. If no individual participant in the market has significant market power, then anti-competitive behavior can take place only through collusion, or the exercise of a group of participants' collective market power."

Thus, market power is one kind of actionable abuse in antitrust law. It is not the only one. There is also abuse of monopoly power. There is also, as the article mentions, collusion. There is also dumping, exclusive dealing, vertical integration, and others which deal with neither market nor monopoly power.

Where Wikipedia is incorrect, as it often is, is simplifying antitrust law to a false dichotomy of market power and collusion, where there are in reality other anticompetitive practices.

Now, what about monopoly? Wikipedia says: "monopoly (from Greek monos , alone or single + polein , to sell) exists when a specific individual or enterprise has sufficient control over a particular product or service to determine significantly the terms on which other individuals shall have access to it.[1] Monopolies are thus characterized by a lack of economic competition for the good or service that they provide and a lack of viable substitute goods."

This is consistent with the legal definition:

near-total or total control of a market, including a varying combination of market power, overwhelming market share, exclusionary power, control of supply, control over entry barriers, and the willful acquisition and maintenance of that domination with an intent to restrain trade and/or prevent competitors from having access to the market.

You can see this exhibited in the Microsoft case: the problem was not abuse of market power itself--it was exhaustion of competition through monopoly power, specifically, coercive monopoly. Wikipedia has an article on that, as well. Abuse of market power was one of the means to get there, but it becomes a different violation once you cross that threshold, because suddenly you have more than just market power--you have a nearly full panoply of control.

To make an easier illustration: consider possession of an illegal firearm, which is then used to kill someone. The major offense is the murder--the illegal weapon is still there, but it's not the "main event". It doesn't make murder a form of possession. It simply includes it in that particular situation.

In fact, even Wikipedia says, "First, an agent in a market can gain market power, allowing them to block other mutually beneficial gains from trade from occurring. This can lead to inefficiency due to imperfect competition, which can take many different forms, such as monopolies, monopsonies, cartels, or monopolistic competition, if the agent does not implement perfect price discrimination."

Monopoly power is more than just an extreme example of market power. Market power can be leveraged to create a monopoly (sound familiar?)--and one can exist without the other. Nothing you have provided contradicts the distinction between market and monopoly power. I've even used your source to demonstrate this.

 

[Wondercow]

Ease off the newbie, he hasn't even been a member long enough to read that many posts.

I should have used a or a instead of a . My intention wasn't to pick on 'im.

 

[IJ Reilly]

Really. We'll turn to your source, Wikipedia: "market power is the ability of a firm to alter the market price of a good or service. A firm with market power can raise prices without losing all customers to competitors."

Really. Another completely unnecessary lecture. I believe it you go back to the post which set off this discussion that you will see that my point about the use of the word monopoly is that most people understand only the dictionary definition, i.e., exclusive or complete control, which leads them to believe that only these circumstances are actionable under antitrust law. I well know that this is neither the legal nor the economic definition -- although if you read Adam Smith, you'll certainly get the impression that his definition and the dictionary definition aren't very different.

In any event, the point is that "monopoly" and "monopolize" are terms with multiple definitions, not all of which are useful for understanding antitrust -- which is why I try to avoid using them. Abuse of market power (no matter how it is derived) to thwart competition really is the fundamental concept to be understood.

 

[matticus008]

I believe it you go back to the post which set off this discussion that you will see that my point about the use of the word monopoly is that most people understand only the dictionary definition

If you go back to the first post, you said, and I quote:

"As I said in another thread, in order for Psystar to have antitrust case, they must prove that "Apple Macintosh Computers" are a separate market over which Apple has a monopoly."

I responded that (a) they need not prove any such separate market and (b) they need not prove a monopoly. A separate market and a monopoly are not elements of the tying claim. Period.

In order for Psystar to have a claim, they must prove that two products are being tied (a dubious claim already discussed at length) and that Apple has market power within the desktop operating system [tying] market (not a monopoly, not even like a monopoly) and that it is being used to restrain competition unfairly in the personal computer [tied] market. This is very different from your mistaken assessment.

, i.e., exclusive or complete control, which leads them to believe that only these circumstances are actionable under antitrust law.

No, I believe the use of the word 'monopoly' at all is what might give someone that impression, which is precisely why I corrected it. Antitrust law does not require a monopoly, or even an attempt at one. It does not even universally require a party to possess market power. It depends solely on the type of unfair competition being alleged. Further, the confusion that exists only worsens when those ignorant of legal matters and legal definitions start talking about "dictionary" and "economic" definitions in an attempt to support a faulty legal assessment.

It simply does not help when a clear legal definition exists and a clear misuse of a legal term within a legal context has to become a tug-of-war instead of a learning experience. Macsmurf has made it a learning experience. You are making it a protracted muddying of a very simple point.

Even if you go back and substitute the proper term, your statement remains incorrect. It is not clear what you stand to gain by continuing to belabor the point.

Abuse of market power (no matter how it is derived) to thwart competition really is the fundamental concept to be understood.

For the last time, NO. Antitrust law is the law of unfair competition. Market power and monopoly abuse are merely two examples. Abuse of market power is the fundamental concept behind tying, not antitrust law generally.

 

[charlituna]

Not to belabor the obvious but doesn't the "you" in that clause pertain to the buyer of the software? Or in this case, Psystar?

if they bought it off the shelf, probably yeah. but then the argument becomes whether that ownership trades to the computer buyer with the sale. which is also probably yes.


which is the crux of the whole issue. Psystar likely did just buy a copy or a handful of copies off the shelf (cause it's in the record they didn't ask for a copy from Apple that they could put on the machines) and broke the one machine rule and the "apple labeled" rule. and then got caught. now caught and being threatened with punishment, they are trying a "those are stupid rules" type defense.

and that I think should be tossed out. yes they have a right, as dumb as it seems on the surface, to try to claim monopoly etc, but I disagree that they should be allowed to link the two issues which is what they are hoping for. if Apple is deemed in error, Psystar's games will slide. and that I don't agree with.

 

[IJ Reilly]

I will go back to the first post, where I said, and I quote:

Monopoly is a much-abused and little understood term. As a purely economic state, it rarely actually exists. That is why antitrust law addresses issues of market power, which don't require a monopoly to exist. Tying one product to another is not an antitrust violation unless the company doing the tying is found to have and be abusing market power. If one product is naturally related to the other, this is generally not considered to be illegal tying. Forcing a consumer to buy one product they don't want along with one they do want can be considered illegal tying. Note that this can only really work to the advantage of the seller if the consumer has little choice but to buy the product, i.e., the seller has market power. Proving a case of illegal tying is a very tall order. It requires mountains of evidence and years in court.

Whether you accept this or not, I really don't care, especially not now, when it's becoming clear that you are more interested in picking a fight than having a discussion.

And yes, absolutely, the definition of markets is essential to antitrust law. You can read this anywhere antitrust law is discussed. You can read it in Psystar's response to Apple's complaint.

Once again, tying is not illegal absent market power over a properly defined market.

Anyway, I don't know what you are arguing, since you essentially restate the case I've already stated several times, and then tell me how wrong I am about it. Puzzling, at best.

I responded that (a) they need not prove any such separate market and (b) they need not prove a monopoly. A separate market and a monopoly are not elements of the tying claim. Period.

In order for Psystar to have a claim, they must prove that two products are being tied (a dubious claim already discussed at length) and that Apple has market power within the desktop operating system [tying] market (not a monopoly, not even like a monopoly) and that it is being used to restrain competition unfairly in the personal computer [tied] market. This is very different from your mistaken assessment.

No, I believe the use of the word 'monopoly' at all is what might give someone that impression, which is precisely why I corrected it. Antitrust law does not require a monopoly, or even an attempt at one. It does not even universally require a party to possess market power. It depends solely on the type of unfair competition being alleged. Further, the confusion that exists only worsens when those ignorant of legal matters and legal definitions start talking about "dictionary" and "economic" definitions in an attempt to support a faulty legal assessment.

Again, this is a puzzling response, given that I have already said numerous times that monopolies are not required for violations of antitrust law to occur. How many more times do I need to repeat this?

And again (I think this makes three times at least) I explained that I have found over years of discussing these issues with people who are "ignorant of legal matters" that the use of the shorthand "monopoly" to describe all circumstances to which antitrust law applies tends to confuse matters. And I'd think you'd agree with this if you weren't so busy being disagreeable.

 

[IJ Reilly]

if they bought it off the shelf, probably yeah. but then the argument becomes whether that ownership trades to the computer buyer with the sale. which is also probably yes.

One of the big problems for Psystar is that they are obviously buying copies of OSX for installation and resale.