Psystar to countersue Apple for antitrust violations

[MacAerfen]

Threads like this make me laugh so hard at some people's comments.

First off Psystar tried to damage Apple's business and seems surprised that Apple took offense and is suing. Apple's business is based on offering an alternative to windows and open hardware computers. Open hardware computers and the OS that supports them are naturally going to have more bugs and other problems because there are literally thousands of options that have to be supported. So yes Apple locks their software to their hardware because that is what makes it unique. OS X is not anything inherently new as to what it does. It is an operating system with a GUI. Yes it has some features other OS's don't but it is nothing vastly different from Windows in what its function is. The key is how it accomplishes that function which is tied directly to the fact that they are able to build it based on a much more narrow hardware profile.

If Apple were to sell it unlocked so it could be put on any system they would loose that whole feature and their reputation would suffer as the majority of computer users are idiots who would not understand that OS X on their AMD clone is buggy because the third party manufacturers who made the drivers didn't put a lot of effort into it. They would simply assume that OS X is buggy and call Apple and complain. Apple does not want to deal with this and shouldn't be forced to.

As for peoples complaint that Macs are over priced because there is no cheap version is complete crap. How many people own a Porsche? Should Porsche be sued because they do not make a cheap car for the average people who can't afford or do not want to pay the premium for premium products. Part of what makes a Porsche worth owning is the fact that it is not cheap and as such is a status symbol. Companies are not forced to cater to those who can not afford their product no matter how much people want them to be. The same configuration of Mac is not that much more than a similar Dell or Sony. The difference is Apple doesn't offer a cheap version for those that don't want to pay for a high end system. Why should Apple have to sacrifice its reputation as a premium product to appease people who want a cheap computer. You want a cheap computer buy a dell. You want a good computer with a good OS buy a Mac. Just like you can buy a little Honda for 12K but if you want a good sports car buy a Porsche.

 

[kntgsp]

I'm a bit sick of bad analogies, but no, that is not the case at all. If you sell a hammer and used it on any kind of nail possible, that is fine.

Joe's Hammer&Nails sells a 10inch hammer along with super-duper nails that go with it, for sure the best fit possible for the easiest hammering action you'll ever see.

You see a business opportunity cause everyone loves the 10inch hammer, but hates the nails. You make cheaper nails than Joe does, so you decide to incorporate and but thousands of Joe's Hammers&Nails, then re-package the hammer with your nails, and call it kntgsp's Nails&Hammers.

You are now causing monetary damages to Joe based on his own property. You are liable, and thus, Joe can sue.

If you are a consumer, and buy Joe's Hammer&Nails, and use your own Nails, you have caused no damage to anyone, and thus Joe cannot sue you.

That analogy only works if PsyStar was branding and selling their computers as Apple computers. They are not. They are selling PsyStar computers with OSX installed.

Your analogy fails because they are not buying Apple computers, putting the internals in a different box and reselling them.


If PsyStar is only installing a copy of OSX you purchase onto their hardware they are not doing anything wrong.

If I buy a computer from Psystar, I purchase a copy of OSX, their hardware, and pay them to install it on that hardware for me.

If I bought a copy of OSX myself, shipped it to PsyStar and paid them to install it onto one of their computers, what crime have I committed?

The only thing PsyStar would be doing if they did this is saying "we'll buy the copy of OSX" on your behalf and cut out the double shipping.

 

[jbernie]

You can make a burger that has the same ingredients as the BK Whopper as the ingredients/recipe per sae is not trademarked, and you can sell that burger in your store but it would be under another name that cannot be associated with a BK menu item ie "the big burger", you cannot however sell a burger named the "whopper" regardless of what ingredients you use as BK owns the "Whopper" name.

You can should you so chose, install any engine in any car you own (you would be violating a lease I would think) for your own use. You could potentially do the same thing and resell the cars but for the most part the engine maker (other than aftermarket parties like Edelbrock) would not give you any warranty coverage and likewise the car manufacturer would not cover most things either.

Though certain parts of the vehicle/engine could remain under warranty if they were not modified from the original state when you made the changes. ie even though you butchered the front of the Focus to get the Porsche engine installed, the rear hatch strut would still be under warranty should there be a recall.

Jerry Seinfeld has/had a VW combi bus and stuck a Porche engine in it. Was going to use it on a cross country road trip with friends, he was on Letterman or Leno and talking about it a year or so ago. The whole aftermarket car part/modification business is based around the fact that you can take any donor vehicle and any other parts you desire and assemble them in anyway you desire so long as you can afford to do so. The only restriction in these cases is whether or not the final product meets DOT regulations such as emissions, crash safety etc. The manufacturers have no control over the customizations.

The sticking point in the Apple/Psystar case will be is there any reason/point in time where a non Apple authorized entity can install the OSX software on a generic personal computer and sell it at a profit and whether the terms of the license are in fact violated by Psystar or by the purchaser.

In part you also need to determine how the profit is derived. Is it related to the inclusion of the OSX software or is it related to the cost of purchasing the components, assembling said components, installing software, advertising & supporting the product and then adding the profit margin.

Included in this is the fact that Psystar only installs OSX at the request of the customer, this can clearly shown by the fact that they also offer systems with other operating systems (ie MS Vista) so the ultimate end user of the system is the person who purchases the device and requested the OS be installed.

I am thinking Apple is more likely to win, based on the fact it is more able to fund an ongoing legal case, but with the right lawyers and maybe having lawyers who will work for a % of any monetary award to Psystar I would not be comfortable in saying an Apple victory is a surething.

 

[zombitronic]

Psystar uses a separate program to "Give" OSX the information that it wants to be able to install.

see:

You agree not to install, use or run the Apple Software on any non-Apple labeled computer, or to enable others to do so.

 

[severe]

I've read a few pages here and I just want to add that I hope this "Psystar" gets their ass handed to them.

 

[MacTheSpoon]

Those Psystar guys are a bunch of low-life bottom-feeders. They should be forced to reimburse Apple's legal costs when their suit fails.

 

[r.j.s]

Those Psystar guys are a bunch of low-life bottom-feeders. They should be forced to reimburse Apple's legal costs when their suit fails.

I think that is part of Apple's suit. They are also demanding that Psystar recalls all the computers they have sold.

 

[kntgsp]

TERRIBLE analogy.

Unless you consider hammers to be copyrightable intellectual property.

Copyright law says it's illegal to modify and distribute copyrighted materials, which is exactly what Psystar is doing.

It's amazing how the Psystar stories seem to be magnets for the most idiotic comments.

The problem lies in that people think it's Psystar sticking a Psystar logo on an Apple product.

Which it isn't doing. It's buying the same internals that any person can freely buy on the open market and installing a copy of OSX that YOU pay for onto that machine for you.

As long as they charge you the same price for OSX as they bought it for, they are not profiting off of Apple.

The only way Apple can spin this in financial theft is if they are selling OSX on their computers for more than what they bought the copies for. Otherwise all they are doing is providing a service in installing the software on some hardware. That is not wrong.

If PsyStar is not including the OSX disc with the computer, THEN they are doing wrong. But as long as they only act as a service for installing the software onto the hardware and charge only for that, they are not doing anything wrong.

 

[JAT]

Not so much. If they were hard coded like video game consoles, Apple would not be able to update their own systems.

This makes no sense. Consoles have updates all the time. I mean, current ones. Technology has advanced since my Intellivisions were built. What's the PS3 had, 1000 updates? Individual games also have updates, fixes, additional levels, etc.

 

[severe]

Those Psystar guys are a bunch of low-life bottom-feeders. They should be forced to reimburse Apple's legal costs when their suit fails.

Yes, they are a bunch of hyphenated things.

 

[JAT]

On this topic, I had a copy of Flight Sim 2004 (from MICROSOFT), scratched the disk and sent them an email, I even admitted that it was my fault. A week later, I had a set of 4 disks in the post with big labels saying 'Unlicensed Software, Illegal without separate licence from Microsoft'

So... it seems that some companies do this.

Apple used to charge a nominal $10 "shipping charge" for replacement discs. Haven't ever tried to use this, do they still?

 

[MacRumors0108]

I have to hand it to Psystar....

They've got cojones for taking on Apple in such a longshot. It would send shockwaves through the entire tech industry if they prevailed - bye bye proprietary software, locked cellphones and probably many other things on that slippery slope.

They had better be well financed, because strategy number one will be to bury their certainly overmatched lawyers with spurious motions and paperwork. This could drag on a long time if it doesn't get dismissed. And Psystars only reward would be to have the legal right to build non-Apple branded Macs - which Dell and the other big boys would do better and faster than these chumps could anyway.

 

[r.j.s]

The problem lies in that people think it's Psystar sticking a Psystar logo on an Apple product.

It's not that. By advertising the computers as being sold with Leopard, they are giving the impression of endorsement by Apple, which they do not have. That alone is enough for trademark infringement.

 

[Artofilm]

If there ever comes at time in which the Mac OS is open to anyone. That will be the day that Mac OS becomes faulty.

Mac designed their OS to be hardware specific. Apple has such good computer system because the hardware they use is very high end and the OS responds well to that.

PC consumers, on the other hand, like very cheap PCs. Cheap PCs + Mac OS means bad news for Apple.

Saying Apple should release their own OS to public computers is like saying Ferrari should release their engines to public use as well...

Suddenly, Apple will no longer look so great...

 

[zombitronic]

If PsyStar is only installing a copy of OSX you purchase onto their hardware they are not doing anything wrong.

If I buy a computer from Psystar, I purchase a copy of OSX, their hardware, and pay them to install it on that hardware for me.

If I bought a copy of OSX myself, shipped it to PsyStar and paid them to install it onto one of their computers, what crime have I committed?

How do you not understand what they're doing wrong?

On the outside of the Leopard install DVD box:

Important Use of this product is subject to acceptance of the software license agreement(s) included in this package.

and again:

You agree not to install, use or run the Apple Software on any non-Apple labeled computer, or to enable others to do so.

Psystar is clearly violating Apple's software license agreement, yet they want to sue Apple for not letting them make a profit while doing that.

If you, as a consumer, want to make a Hackintosh, fine. You're in clear violation of the SLA, but Apple will probably not come after you as an individual.

If you, as a business, want to sell a Hackintosh, not fine. Expect the consequences.

 

[sfh]

apple updates

This is something that can only be proven in court. No sense in arguing it here. However, if they didn't modify it, why don't Apple's updates work?

Apples update program searches for the same type of information, psystar packaged their program to "give" the updater the information that it was looking for, a alternate video driver (for the systems that had the different video card *one of the OSX updates was for video cards*).

The latest updates have loaded directly from the system update.

... Personally i wouldn't buy anything but a Apple, because i know as well as you that the "end to end experience" would be lacking if apple was forced to allow OSX to be installed on other machines. ... seriously can you imagine how many people would whine that their $2 printer driver (coded by some contract company) doesn't work and "it's all be cause of OSX" ( That's one of the huge problems with windows).

 

[quagmire]

The hardware isn't made by Apple any more, now it is made by Intel who also make the same hardware for Dell.

The hardware wasn't made by Apple before the Intel switch. IBM and Motorola did.

 

[jbernie]

Originally Posted by ajthomason
Call it what you like, you could even write "With the body of a Ford and the engine of a Porsche" and no one could stop you - you are only telling the truth. I'm actually starting to like this analogy...

If you wanted to sell them commercially, no, you couldn't.

So long as you cover yourself with disclaimers saying it is not an official product of either company, state clearly that neither company will provide warranty support and that you are either providing a warranty or selling as is, do violate any trademarks, did not misuse confidential information for either companies products, and a few other things no doubt then yes you can sell such a vehicle.

Yes if you buy an engine from Porsche you are 99.9% of the time going to use it in a Porsche car body.... but you can install it in a car body from another manufacturer if you want. If you are going to resell the vehicle then you may want to try and buy the engines at a wholesale price as opposed to a retail price (like Apple buys processors) so you don't overspend on the parts but you can do it.

 

[kntgsp]

It's not that. By advertising the computers as being sold with Leopard, they are giving the impression of endorsement by Apple, which they do not have. That alone is enough for trademark infringement.

I think a key difference is whether or not they display the Apple logo or advertise it as being an endorsement by Apple.

That, obviously, is a problem.


But when they advertise their computers and say they can be installed with XP, Linux or OSX, I think it's going to be much much harder for them to apply for trademark infringement.

I haven't bought a Psystar computer or seen their advertisements though.

 

[milo]

I sell oranges. You sell oranges cheaper than I do. I should be able to have the court shut you down because you are causing me "financial harm".

What is with the idiotic analogies of things like oranges?

Oranges are not intellectual property.

Psystar uses a separate program to "Give" OSX the information that it wants to be able to install. The updates that Psystar did the same thing. Psystar from what I can tell has not changed OSX code ... therefore no infringement

Sorry, but I don't think that's right. OSX simply isn't written to run on generic hardware, so there's no way that the version of OSX shipping on their machines is the same as the official version.

Whether they have created a hacked install disk or have some sort of modification software running during the install, either way it's modifying the OS and distributing that modified version.

If PsyStar is only installing a copy of OSX you purchase onto their hardware they are not doing anything wrong.

But they are not doing that, they are installing a HACKED version of the OS, which is a violation of the derivative works part of copyright law.

The problem lies in that people think it's Psystar sticking a Psystar logo on an Apple product.

Nope, not it at all.

It's buying the same internals that any person can freely buy on the open market and installing a copy of OSX that YOU pay for onto that machine for you.

You mean installing a HACKED version of OSX. Meaning they're violating copyright law.

 

[iMACTASTIC]

Well I think Pystar has a case. I mean microsoft got sued for making IE only work with windows. Its also not exactly fair that they sell OSX on the shelf but don't let you install it on pcs. No other operating system tells you what hardware you must install it on. Its interesting to say the least.

Apple has been doing it for so long they PYST will get buried for years.Apple wont even let them get to the part if they are right or not.
Well hear about this case when we are relaxing on the moon drinking beer from our lazy boy.

 

[paric]

Threads like this make me laugh so hard at some people's comments.

First off Psystar tried to damage Apple's business and seems surprised that...

Exactly. Of course no one arguing for Psystar cares about legal issues and personal property rights. This is because it is NOT their property.

They have probably never worked hard to create something of their own, and so they have never had someone else try to steal it. I bet if they did a little graphic design work for someone else, and that image ended up on Apple's homepage, they would be suing Apple just like Apple is suing Psystar.

 

[ABernardoJr]

I sell oranges. You sell oranges cheaper than I do. I should be able to have the court shut you down because you are causing me "financial harm".

Give. Me. A. Break.

It's dictatorial capitalism. Plain and simple.

There's a difference between selling a product with competition selling the same product versus you producing and selling your product and having someone else sell YOUR product for a cheaper price. If your analogy were to make more sense it'd probably be better suited in a comparison between the Windows OS and OSX.

The "oranges" don't compare to the criteria of Apple's own produced OS, because Apple, of course, produced their own operating system for their sale. If in this situation, one company (Windows) sells their own oranges (operating system) for one price, and a competitor (Apple) would sell their own oranges (OSX of course), there is no harm.

But as Psystar is doing, it'd be one company (Apple) selling their oranges (OSX) and having another competitor (Psystar) selling the other company's oranges (OSX again) for a lesser price/bundle.

Apple makes it clear that their operating system isn't intended for non-Apple computers. Taking it's operating system and modifying it to be compatible with Psystar's computers without any agreement or settlement is hardly practical on Psystar's part.

P.S. I don't like working in extended analogies like that. *sigh*

 

[iMACTASTIC]

Threads like this make me laugh so hard at some people's comments.

First off Psystar tried to damage Apple's business and seems surprised that Apple took offense and is suing. Apple's business is based on offering an alternative to windows and open hardware computers. Open hardware computers and the OS that supports them are naturally going to have more bugs and other problems because there are literally thousands of options that have to be supported. So yes Apple locks their software to their hardware because that is what makes it unique. OS X is not anything inherently new as to what it does. It is an operating system with a GUI. Yes it has some features other OS's don't but it is nothing vastly different from Windows in what its function is. The key is how it accomplishes that function which is tied directly to the fact that they are able to build it based on a much more narrow hardware profile.

If Apple were to sell it unlocked so it could be put on any system they would loose that whole feature and their reputation would suffer as the majority of computer users are idiots who would not understand that OS X on their AMD clone is buggy because the third party manufacturers who made the drivers didn't put a lot of effort into it. They would simply assume that OS X is buggy and call Apple and complain. Apple does not want to deal with this and shouldn't be forced to.

As for peoples complaint that Macs are over priced because there is no cheap version is complete crap. How many people own a Porsche? Should Porsche be sued because they do not make a cheap car for the average people who can't afford or do not want to pay the premium for premium products. Part of what makes a Porsche worth owning is the fact that it is not cheap and as such is a status symbol. Companies are not forced to cater to those who can not afford their product no matter how much people want them to be. The same configuration of Mac is not that much more than a similar Dell or Sony. The difference is Apple doesn't offer a cheap version for those that don't want to pay for a high end system. Why should Apple have to sacrifice its reputation as a premium product to appease people who want a cheap computer. You want a cheap computer buy a dell. You want a good computer with a good OS buy a Mac. Just like you can buy a little Honda for 12K but if you want a good sports car buy a Porsche.

Ill toast to that. Very well said. Its like complaining Nike doesnt sell the swoosh separately.

 

[kntgsp]

How do you not understand what they're doing wrong?

On the outside of the Leopard install DVD box:


and again:


Psystar is clearly violating Apple's software license agreement, yet they want to sue Apple for not letting them make a profit while doing that.

If you, as a consumer, want to make a Hackintosh, fine. You're in clear violation of the SLA, but Apple will probably not come after you as an individual.

If you, as a business, want to sell a Hackintosh, not fine. Expect the consequences.

The issue lies with the EULA on operating system software being an unconscionable contract of adhesion.

Installing OSX on a computer, selling it, and charging $20 more for the OSX disc than what it can be bought for, is clear financial harm.

But what if you don't make a profit off of the OSX license. People are just paying you to install a copy of OSX on hardware that they would have done themselves anyway. Only instead of making a hackintosh, they pay someone to install it onto hardware for them. Those people weren't going to buy an Apple computer anyway.

It's a monopoly almost akin to the textbook price fixing in the educational system.

The biggest issue is that, if a consumer went and bought a copy of OSX, mailed it to Psystar, paid them for a computer and to install OSX and Psystar mailed it back to them, the only difference is that it was mailed twice.

The end result is the same, only UPS or FedEx made more money. But Apple would be trying to make the exact same case.

And using the courts to force Psystar out of business isn't going to stop this. The only way they can enforce that part of the EULA is to remove OSX boxes from shelves.