Judge OKs Psystar's Countersuit Against Apple

[ThePatriot]

Silly americans just don't get it that the DMCA is american act and has no value in the EU. The same persons think that the EU is out to 'get' US companies, totally ignoring that most complaints filed with anti-trust department were from american companies.
Get used to it: american law is just that, and no more.

 

[zibby]

Don't worry. Steve Jobs will die soon and Apples monopoly will be over. hahahahha

 

[eccentric909]

Could you imagine if you swapped Microsoft for Apple in this case? People would be screaming from the rooftops if MS had the same restrictions as Apple. I know MS and Apple are different and are trying to accomplish two different business models.. however if MS said you can only use or install Windows on machines approved by MS, there would be hell to pay. However, a lot of people support Apple for doing just that. ><

Hell, there might just be a lot more people out there using an Apple OS, if Apple sold their OS seperately (without support), as well as offering their own line of PCs which they fully support.

 

[tenor77]

It's not a question of what seems right or what should be but what the license a user agrees to. If a user is aware and it is clearly stated that Mac OS can only be loaded on Mac hardware that is that companies choice. The user agrees to this in order to use the product. End of story.

Personally for Mac to keep this exclusivity in todays world is stupid. If they were to open up their OS like MS (they can still offer "Official" hardware) they might actually be able to compete with MS. As it stands however they will never gain a majority share because they take the Henry Ford approach to computers.

"A customer can have a model T in any color. So long as it's black.

To system builders this makes Macs seem like an authoritarian or a dictatorship of the electronics world.

Why would I use your OS if you tell me what case I can have, or what GC or processor I can have. I've been choosing this for myself since I started building computers 15 years ago, and it's only gotten easier over time. No fussing with jumpers etc. If I want to OC and cool my computer with cooking oil I can do this (I dunno why but I still love that design)

Back to the lawsuit, I want to say they should be able to, but in the end Apple does have the legal right to decide how their product should be used even if it is shortsited.

 

[Guest]

I wonder if Apple's business model would survive should they attain a larger percentage of market share in terms of Percentage of OS's being distributed. Should Microsoft brand a computer named WindowFrame and decide that from here on out you can only put your Windows in a WindowFrame computer, if they retained their current marketshare, I think that would be found to be monopolistic and the company would have to divide into two (at least) with Windows and WindowFrame.

Should Apple grow, would they ultimately be compelled to divide into (at least) two parts, Macintosh and AppleTree (You only find Macintosh Apples on AppleTrees). Or perhaps if Apple grows in terms of Market share would that allow Microsoft to make a WindowFrame computer for their Windows, essentially mimicing Apple's business model? It certainly would help Microsoft's Quality control.

 

[Indubstylo]

i agree with geoff. Psystar's mistake is installing os x on these blank machines using an upgrade disc. You can't even do that with a Windows upgrade without violating their EULA. If Psystar wanted to win, they should have fought for the full installation of OS X. Now they're just being defensive. Although they might break new ground for future cloners but they got to bite this bullet. they did f'up.

 

[reddozen]

[citation][nom]m3kt3k[/nom]AndrewMD UMMM you are wrong. They can tell you they would void the warranty but not that you cant use them.[/citation]

They're not legally allowed to void your warranty for "aftermarket" parts or customizing your car unless the parts themselves caused the damage to the aspect of the vehicle that you are requesting a warranty for. The only exception is if they are providing the OEM parts for free which they are generally more expensive.

And FYI, I work for one of the largest aftermarket auto parts companies in the world. What's funny is when people try and argue about how much better OEM parts are... until I show them that we sell the exact same parts, from the same production lines, to both the OEM and aftermarket distributors in a different box.

I'm kind of surprised that they're not trying to nail the same situation down to apple. Not so much that it's anti competitive (it is), but that the consumer has the right to use whatever "aftermarket" parts they want so long as its use does not break the warrantied product. Last I checked, you can't break software beyond the repair of reinstalling it unless your drive eats the disk... just my 2 cents.

The Magnuson-Moss Warranty Act (15 U.S.C. 2302(C))
This federal law regulates warranties for the protection of consumers. The essence of the law concerning aftermarket auto parts is that a vehicle manufacturer may not condition a written or implied warranty on the consumers using parts or services which are identified by brand, trade, or corporate name (such as the vehicle maker's brand) unless the parts or service are provided free of charge. The law means that the use of an aftermarket part alone is not cause for denying the warranty. However, the law's protection does not extend to aftermarket parts in situations where such parts actually caused the damage being claimed under the warranty. Further, consumers are advised to be aware of any specific terms or conditions stated in the warranty which may result in its being voided. The law states in relevant part:

No warrantor of a consumer product may condition his written or implied warranty of such product on the consumers using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is identified by brand, trade or corporate name... (15 U.S.C. 2302(C)).

 

[crom]

Psystar is also using software that they didn't create to build these mac closes, OSX86, and they're using it against the EULA of the creators of that software. If you want MacOSX, and it seems many people here do, go and buy a Mac. If not, continue using Windows or Linux. Psystar is going to lose this case.

 

[geoffs]

they could probably start setting up licensing deals with OEMs and make a killer profit... on software they had created a while back. They'd only need to provide support for the core and the manufacturers of addons would be responsible for the driver kexts...

They tried that once before, remember the PowerPC clones (e.g. PowerComputing). There were two problems:
1. The clones didn't significantly expand the market for Mac OS, they just cannibalized Apple's hardware sales.
2. The Mac OS reputation is based upon the total user experience. Even if Apple isn't "responsible" for driver issues from clone vendors, it still affects the user experience and detracts from the Mac brand.

It's a different market today and Mac OS X is very different than the Mac OS at that time, so it might work, but it's a risk.

 

[captaincharisma]

this is pretty sad. Apple makes Mac OS so sense they make and own it then they can do anything they want with it. no one has gone after apple before sense they own a small percentage of the computer market. i do not see anything wrong with a company making rules for the stuff it owns. i'st like with tv if you don't like whats on change the channel or turn it off. in this case there are better alternatives then using apple computers or mac OSX

 

[geoffs]

wait a minute, that is not correct, i can buy parts, used parts form tvs, dvd players, ect. i used to go into city to get them. then i would build my own from taking apart the stuff i bought and making my own.

i can buy a dell computer or parts and take the parts, like memory, cpu, harddisk, ect, and you it to build my own custom computer.

that is what clones are doing they are taking the osx part, they dont want the rest and building their own

You apparently mis-read my post. You can buy something, take it apart, add to it, customize it, etc., even with a Mac. The problem with PysStar is they're not paying for an OS X license to start with.

isnt that what apple people are doing, installing windows in vm

No, most people running Windows in a VM on a Mac are running a legally licensed copy of Windows.

apple should stop acting like bully and go out there and get a bunch of customers, go out and compete against windows, maybe they would win

The are competing, that's why their market share is growning. They're not being a "bully", but they demand to be paid for the software they have developed.

 

[captaincharisma]

apple should stop acting like bully and go out there and get a bunch of customers, go out and compete against windows, maybe they would win

Apple is competing with windows just in a different way. apple is build ing its own hardware and software for its OS so you know there will be 0 to no errors with it. unlike windows who has to deal with millions of peaces of hardware and software

 

[Ralf the Dog]

Apple makes it's money from selling hardware. They are quite happy if they make their development cost back selling software, but they think of it as a loss leader.

If Apple is not allowed to enforce their EULA, they will require a dongle to upgrade OS/X. New x86 computers will come with the dongle built in. If you have an older x86, you will be required to take it to an Apple store where the dongle will be parred with the CPU ID of your computer.

If Apple is not allowed to dongle their computers, they will stop selling computers. The one thing they will not do is let other people install OS/X on non Apple computers. This would force Apple to operate at a loss.

 

[mdillenbeck]

Possible Argument: Apple's EULA is not different than the Microsoft OEM license agreement - one that states you can only use the software on a specific hardware. For volume OEM sales, such as Dell, the license key is tied to specific hardware. For "retail" OEM software, the ones home builders buy, you put the sticker on the case and it is tied to that machine. The fact that they let you upgrade all the guts and reactivate by stating only one machine is irrelevant, they technically tie it to that machine's hardware.

Possible Counterargument: Apple does not tie it to a specific machine - but a class of machines. This is like allowing your copy of XP from Dell to work on any Dell system, but no other systems. Thus there is an important difference between Apple's EULA and the established OEM license agreement.


Possible Argument: There is an EULA and it is legal within the US code of law, thus Psystar is engaging in an illegal act and totally in the wrong.

Possible Counterargument: There is a long history of US laws being challenged on the grounds that they should not be legal. Psystar is in the wrong for not completing this legal challenge before making the product and should pay, but this does not mean the Apple EULA should stand.


Possible Argument: One can add all the after-market products to computer one wants without violating the the EULA, so the car analogies used so far are faulty.

Possible Counterargument: True, car analogies are faulty. Using computer software built in the car would be more like comparing drivers, which are hardware specific and thus typically not "transferable". A better analogy would be allowing a specific piece of software to run only on a Dell or Gateway or HP computer. Again, not the OEM versions as mentioned above because it is not tied to ONE specific computer, but a family of computers.


The problem here, as you can see, are both sides have valid and sound arguments. I FULLY agree that Psystar needs to buy the software, and I firmly believe they should have challenged the EULA in court before manufacturing systems. I also firmly disagree that a US law is immutable and absolute in its authority. I also believe strongly that the sides are polarized on their personal views of how IP should be handled.

My challenge to both sides is this: considering BOTH the end user AND the company selling a piece of software, and considering the underlying issue of the US patent system and US laws about the which software licensing agreement terms are allowable, what is your ideal system and what concessions are you willing to make with the other side? (Pretend you are a legislator who is trying to formulate a bill that will actually pass and be to the greatest benefit for both parties while also being legal and reasonably fair.)

 

[geoffs]

Apple makes it's money from selling hardware. They are quite happy if they make their development cost back selling software, but they think of it as a loss leader.

Probably true. I still don't think Apple has figured out that they're a software company. Yes, they make good hardware and have some great aesthetic and ergonomic designers, but it's mostly the software that has attracted users. All the "cool" hardware is just a bonus.

 

[falconqc]

[citation][nom]geoffs[/nom]No, most people running Windows in a VM on a Mac are running a legally licensed copy of Windows.[/citation]

Man I just pissed myself. Please, the only time I see a legal version of Windows is when I bundle it with a system I sell.

Geoffs, you seem like a smart guy, but I think you are missing the point that most of the people are trying to make. What the lawsuit is saying is that it is anti-competitive and borderlines anti-trust when the only legal way to use Mac OS X is on their hardware.

Sure you can add your own RAM, graphics cards, monitor, mouse and keyboard, but what it all comes down to, is that you can't buy a bunch of random part from your favorite manufacturer and slap a system together the way you want your system to be.

It's like buying golf ball you can only use with the same brand golf clubs, buying a pen that can only be used with same brand paper, buying a glass you can only use with same branded water. Do I need to go on?

Now, Psystar may be abusing the upgrade license, I'll agree with you there, but it seems to me that it is the only way for them to be able to provide a simili-legitimate version of the Mac OS without blatantly using a hackintosh distro.

I just have one question for you now; do you think users should be able to choose what hardware they can install their Mac OS on?

[citation][nom]captaincharisma[/nom]Apple is build ing its own hardware and software for its OS so you know there will be 0 to no errors with it. unlike windows who has to deal with millions of peaces of hardware and software[/citation]

That's wrong. Apple doesn't make their own hardware, they just use a selected list of manufacturer to ensure they don't have to deal with too many hardware configurations. Is that better than Windows? That's up to debate. As a matter of fact, I believe that is a compelling argument used by many gaming console users.

On the other hand, Windows doesn't have to deal with anything. Windows has something neat called Hardware Abstraction Layer that allows the Windows Kernel to communicate with hardware regardless of configuration. Any BSOD or driver problems you encounter are not a Windows issue, they are a driver issue. Microsoft doesn't make drivers for every piece of hardware, the hardware manufacturer does, Microsoft only does WHQL testing on the driver to certify that it will work properly. And believe me, not many drivers out there are WHQL certified.

 

[geoffs]

Silly americans just don't get it that the DMCA is american act and has no value in the EU.

No, we know the DMCA doesn't apply in the EU or elsewhere. This case isn't about the DMCA, it's about PsyStar pirating Mac OS X and reselling it. They don't have a valid license for OS X for the machines they're selling. It's a copyright violation and a EULA violation, plain and simple.

As for the DMCA, congress screwed up big when they passed that piece of junk. I look forward to the day it's repealed, overturned, or overridden. But that's a rant for another day.

 

[captaincharisma]

That's wrong. Apple doesn't make their own hardware, they just use a selected list of manufacturer to ensure they don't have to deal with too many hardware configurations. Is that better than Windows? That's up to debate. As a matter of fact, I believe that is a compelling argument used by many gaming console users.

On the other hand, Windows doesn't have to deal with anything. Windows has something neat called Hardware Abstraction Layer that allows the Windows Kernel to communicate with hardware regardless of configuration. Any BSOD or driver problems you encounter are not a Windows issue, they are a driver issue. Microsoft doesn't make drivers for every piece of hardware, the hardware manufacturer does, Microsoft only does WHQL testing on the driver to certify that it will work properly. And believe me, not many drivers out there are WHQL certified.

yea your right i guess i should have said hand-pick there hardware. it just there not many choices for upgrading aples than there is for a PC. as for windows it is not windows fault but due to there are many high and low quality hardware and software vendors out there people still try to blame windows for not being stable because of this

 

[geoffs]

Please, the only time I see a legal version of Windows is when I bundle it with a system I sell.

As a software developer, I thank you for ensuring your customers properly license software. I'm sure MS is thankful that you sell Windows with machines.

Geoffs, you seem like a smart guy, but I think you are missing the point that most of the people are trying to make. What the lawsuit is saying is that it is anti-competitive and borderlines anti-trust when the only legal way to use Mac OS X is on their hardware.

I know the point, but there is nothing anti-competitive or anti-trust about it. Just because they don't like it doesn't make it illegal. Apple is under no obligation to license their software to anyone, at any time, for any reason. That they do license it at all is their choice. That they license it only with their hardware is their choice.

If you don't like the licensing terms and/or price, don't license it (and don't use it). I don't like Oracle's licensing terms (especially the pricing), but they do have the best RDBMS on the market, and for that reason, we've licensed it. I don't like some of MS licensing terms, but I've licensed a lot of MS software too. So I don't like the terms, fine. Now, I get to choose, accept terms I don't like or don't get the product. If there are competitive products, I can go license one of them instead, and Apple certainly has plenty of competition.

You can't use Tivo's software on another DVR, you can't run the Zune software on a Sansa, Creative, or Apple player, you can't run Toshiba's TV software on another TV, you can't run Xbox software on a PS3, you can't run PS3 software on an Xbox.

Electronics are bundled with software to make them work in a particular way, that's what makes it valuable. It doesn't matter that some other company can build better, faster, or cheaper hardware, if they don't provide software that makes that hardware usable and desirable, the hardware is useless.

Sure you can add your own RAM, graphics cards, monitor, mouse and keyboard, but what it all comes down to, is that you can't buy a bunch of random part from your favorite manufacturer and slap a system together the way you want your system to be.

Sure you can, as long as you pay the license for the software. That's the same whether you're building a machine to run Windows or Mac OS X. What's different is the terms and cost of the license. It doesn't matter that people don't like that the only way to get a license for Mac OS X is to buy a Mac, that is in fact the only way to get the license. Apple is the copyright holder, and as such, they do get to set the licensing terms.

It's like buying golf ball you can only use with the same brand golf clubs, buying a pen that can only be used with same brand paper, buying a glass you can only use with same branded water. Do I need to go on?

Not even a close analogy. Those items don't need software (i.e. intellectual property) to make them work. Hardware needs software to be useful. You don't buy a DVR and then buy software to make it work, you buy DVR hardware and simultaneously license the software to make it work. Same with a Mac, you buy the hardware and license the software for a single price.

Golf balls, ink, paper, and water are consumable supplies. Ask HP how well it worked to require you buy HP supplies for HP printers. If Apple tried to require that you use Apple branded monitors, disks, RAM, keyboards, etc., then they would have a legal problem.

I just have one question for you now; do you think users should be able to choose what hardware they can install their Mac OS on?

What I think is not relevant, I'm not the copyright holder. I'm not the person/company who spent millions of hours and billions of dollars to develop it.

Do I wish Apple licensed Mac OS X separately from their hardware? Yes, or at least offered more configuration options and offered those options as closer to "street" price. Unfortunately, it's not up to me or the U.S. courts to make Apple do that. As long as people think it's worth the price, they will continue to sell it at that price. If they stop producing machines that consumers believe are worth the price, sales will plummet. Until then, buy or don't buy, but stop complaining about it.

 

[geoffs]

as for windows it is not windows fault but due to there are many high and low quality hardware and software vendors out there people still try to blame windows for not being stable because of this

Precisely, and that is one of the reasons Apple doesn't want to license Mac OS X separately. People blamed MS for the problems with Vista, even though many of the early problems were with video drivers from Nvidia and AMD/ATI. Yes, some of the problems were MS fault, and MS could have worked with Nvidia, AMD/ATI, and other manufacturers before release to work out those issues, but regardless of who was at fault, MS and Vista ended up with the bad reputation.

 

[jabliese]

Currently offering a star to the first person who can find a link to a retail version of OS X that is being sold as an upgrade. Apple's store doesn't mention the word upgrade once on it's page (and don't go posting a comment with the word upgrade in it just to be cute.) Neither have the couple other vendors I've checked. So, geoffs, what is your job title with Apple anyway?

 

[geoffs]

So, geoffs, what is your job title with Apple anyway?

Customer.

 

[geoffs]

Currently offering a star to the first person who can find a link to a retail version of OS X that is being sold as an upgrade. Apple's store doesn't mention the word upgrade once

No need to mention upgrade. If you read the license agreement for Mac OS X 10.5 (Leopard) available here:
http://www.apple.com/legal/sla/
You'll see this:

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. This License does not allow the Apple Software to exist on more than one computer at a time, and you may not make the Apple Software available over a network where it could be used by multiple computers at the same time.

B. Family Pack. If you have purchased a Mac OS X Family Pack, this License allows you to install and use one (1) copy of the Apple software on up to a maximum of five (5) Apple-labeled computers at a time as long as those computers are located in the same household and used by persons who occupy that same household. By "household" we mean a person or persons who share the same housing unit such as a home, apartment, mobile home or condominium, but shall also extend to student members who are primary residents of that household but residing at a separate on-campus location. The Family Pack License does not extend to business or commercial users.

C. You may make one copy of the Apple Software (excluding the Boot ROM code and other Apple firmware that is embedded or otherwise contained in Apple-labeled hardware) in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Apple Boot ROM code and firmware is provided only for use on Apple-labeled hardware and you may not copy, modify or redistribute the Apple Boot ROM code or firmware, or any portions thereof.

All three paragraphs specifically mention "Apple-labeled hardware", which is the basis for having a license to use Mac OS. Either you're running it on an Apple-labeled computer and thus meet the license terms, or you don't have an Apple-labeled computer, and you don't.

Furthermore, paragraph C indicates that the "Apple Boot ROM code and firmware" is explicitly for Apple-labeled hardware. Now, no one in their right mind would argue that "Boot ROM code" can be legally separated from the hardware it with which it is provided. Mac OS X will not work without the "Apple Boot ROM code". The only legal way to have "Apple Boot ROM code" is to buy a Macintosh, in which case, you've also purchased a license to run Mac OS.

You can try 500 different ways to skirt the issue, but the fact is that the only way to get a legal license for Mac OS is to buy a Mac. The only legal way to run Mac OS, is to run it on a machine with "Apple Boot ROM code". It's valid and it's legal. Anything else is wishful thinking and/or a license violation.

 

[falconqc]

@Geoffs:

Well, although I'm sure all developers are happy to see licensed software be bought, I'm not doing it to get the appreciation of MS. As a business, it would not be good practice for me to provide illegal copies of any operating system, including Mac OS. Now, if the client wants Linux instead of Windows, I have no problem lowering the price of the system since he won't have to pay for a copy of Windows.

I seem to recall a little while ago something about off the shelf RAM not working with apple Macbooks and their Genius answer was "Buy Apple RAM". Let's not forget the new iMac that is encased in a screen, I'm pretty much forced about that monitor.

Although you do have a point that my examples were "consumables", your counterexample was also flawed. You only mention embedded systems.

Unlike a PC, you can't just buy all the parts that make a TV and build it from the ground up. I can't buy all the parts for a cell phone, GPS, motherboard, etc, from my local retailer and build it in the convenience of my own home. Obviously these parts can be obtained as they are being produced every day, the difference is these items you mentioned are not made to be assembled by the end user. You could debate that neither is a Mac, but we all know that what is inside a Mac nowadays is pretty much a PC in a custom made case. Remove that fancy case, and you get any PC sitting at home.

What people want is to be able to purchase a license of Mac OS and install it on the system they choose. I have no beef with Mac OS, but I never want to touch any kind of Apple made hardware.

If anything, it is in Apples best interest to allow users to install Mac OS on any system. I'm sure a lot of people might "Switch", as Apple puts it, if they didn't have to fork out premium price strictly for style.

 

[geoffs]

I seem to recall a little while ago something about off the shelf RAM not working with apple Macbooks and their Genius answer was "Buy Apple RAM".

That was a warranty support issue. When Apple demonstrated that it worked correctly with Apple's RAM, they were under no obligation to repair it because the problem was caused by the third party RAM. They never said you couldn't use third party RAM, just that the wouldn't support problems caused by third party RAM. Same as any other manufacturer.

Let's not forget the new iMac that is encased in a screen, I'm pretty much forced about that monitor.

And the same is true of every laptop/notebook, etc. If you buy an all in one unit....

Although you do have a point that my examples were "consumables", your counterexample was also flawed. You only mention embedded systems.

As far as copyright and license goes, there is no difference. Still, there are a number of embedded systems where you could technically modify the software from one device to run on another, e.g. Symbian phones vs. Windows Mobile phones, largely the same hardware, different OS, but you can't just install whichever OS you want, you have to buy the phone and the OS license together. Most software is only licensed with the hardware on which it runs, most of that is embedded systems, but that also includes BIOS/firmware for every device you install in your PC. Third party software for computers and game consoles is the exception, not the rule.

What people want is to be able to purchase a license of Mac OS and install it on the system they choose. I have no beef with Mac OS, but I never want to touch any kind of Apple made hardware.

If anything, it is in Apples best interest to allow users to install Mac OS on any system. I'm sure a lot of people might "Switch", as Apple puts it, if they didn't have to fork out premium price strictly for style.

As I said, I do wish they offered it separately, but it's not up to me. I mean, right now, I can't even run a second copy of Mac OS X to under VMware Fusion on my Mac unless I want to pay $500 for Mac OS X Server (special allowance for virtualization in OS X Server license). Right now, you can't get Mac OS X except by buying a Mac, and there is nothing the courts can do to change that. Apple gets to set the licensing terms (within some limits).