Actually, Apple probably can't do much about it. Which is why Apple has refused to comment. Here are several reasons why Apple would be reluctant to g to war on this one:
1. Concerning use of the EFI V* emulator, while Netkas was a prominent contributor to the OSX86 project, he was not the only one, and the EFI v8 emulator was originally released to the public domain for unrestricted distribution more than two years ago. Notwithstanding Netkas' questionable ownership (which he has yet to formally claim, btw) of any code in the emulator which may or may not possibly be copyrightable (and the EFI Emulator itself is built on much open source and public domain code), Netkas cannot under US law remove it from the public domain. The authors freely distributed it with no license for more than two years with the intent of unrestricted dissemination. Under U.S. law, that constitutes placing the code in the public domain. Once the code has been placed in the public domain, it cannot be later removed from the public domain. By placing the code in the public domain, the author irrevocably relinquishes all ownership and rights in the copyright. "oftware released thus goes completely out of control of the author, who, even if he subsequently so desires, cannot impose any restriction on its use."
"Programs that are uncopyrighted because their authors intended to share them with everyone else are in the public domain. Programs in the public domain can be used without restriction as components of other programs."
The test of whether software has passed into the public domain is set out in Computer Associates Int'l v. Altai, 982 F.2d 693.This decision holds that computer software may enter the public domain through "freely accessible program exchanges and the like," or by becoming "commonplace in the computer industry." If the authors original intent was to distribute the code unrestricted and encourage the unrestricted distribution of the code, then the code falls into the public domain.
2. Apple may well be barred from taking action against Psystar by the doctrine of laches. Apple has allowed the OSX86 organization to very publicly post the code for the emulator with not so much as a warning letter or cease and desist. Not a single complaint from Apple in more than 2 years. Psystar has a very good argument that it has relied on Apples very public and very well known and obviously deliberate neglect to enforce the EULA over the last two years. I believe that this very concise definition is applicable: "In general, when a party has been guilty of laches in enforcing his right by great delay and lapse of time, this circumstance will at common law prejudice and sometimes operate in bar of a remedy which is discretionary for the court to afford. In courts of equity delay will also generally be prejudicial."
3. Neither the OSX86 project or Psystar are modifying any of Apple's proprietary code. The kernel of OSX is openBSD. This code is public domain and/or open source. Not only can anyone freely modify that portion of OSX, but in as far as the Open Source portions, Apple is REQUIRED under the terms of Open Source licenses to provide the non-proprietary source code to anyone that requests it. Apple acknowledges as much in its EULA:
"D. Certain components of the Apple Software, and third party open source programs included with the Apple Software, have been or may be made available by Apple on its Open Source web site
(http://www.opensource.apple.com/) (collectively the "Open-Sourced Components"). You may modify or replace only these Open-Sourced Components; provided that: (i) the resultant modified Apple Software is used, in place of the unmodified Apple Software, on a single Apple-labeled computer; and (ii) you otherwise comply with the terms of this License and any applicable licensing terms governing use of the Open-Sourced Components. Apple is not obligated to provide any updates, maintenance, warranty, technical or other support, or services for the resultant modified Apple Software.
You expressly acknowledge that if failure or damage to Apple hardware results from modification of the Open-Sourced Components of the Apple Software, such failure or damage is excluded from the terms of the Apple hardware warranty."
4. Many jurisdictions in the US and Europe do not recognize EULA's or severely restrict their application. In these so called "anti-UTICA" jurisdictions that have formally classified shrink-wrap software as goods subject to the UCC, the EULA provisions like the one in question are not enforceable, as those jurisdictions do not recognize software as licensed, but instead classify software as goods subject to consumer protection regulations and the laws governing the use of goods.
5. Psystar's claim that Apple is acting as a monopoly is not without some merit, and probably grounded in a judgment rendered by the Court of Appeals for the Ninth District in the case of DigiDyne Corp. Vs. Data General ( 734 F.2d 1336 (9th circuit, 1984)) which held that Data General’s refusal to license its copyrighted computer software to those who did not purchase its hardware was an unlawful tying arrangement, and this was not over-turned by the U.S. Supreme Court. Generally, these types of issues are decided on a case-by-case basis.
6. Even if Apple's EULA could be found enforceable, Apple's recourse is extremely limited by the EULA itself. . Liquidated damages can only be recovered if they are set out in the contract. Attorney fees and costs can only be recovered if they are set out in the contract. Punitive damages are generally not allowed in breach of contract cases. Compensatory damages are generally limited to direct actual monetary loss. Generally, courts have limited relief in breach of Contract suits to either specific performance or involuntary termination. Not even a reliance award would be applicable here, as Psystar has made no direct representations to Apple.
Apple would be better of accepting Dell's offer to pre-install OS-X as an alternative to Vista (which Jobs turned down). there are several Dell computers that can run the "Vanilla" OS-X kernel, and that can be priced comparable to Psystar's that Apple could "certify" as being OS-X compliant. Dell would force the small shops like Psystar out of the market, just like they did the small PC cloners. And Apple would sell a boatload of OS-X, just like Microsoft did with Windows.
1. Concerning use of the EFI V* emulator, while Netkas was a prominent contributor to the OSX86 project, he was not the only one, and the EFI v8 emulator was originally released to the public domain for unrestricted distribution more than two years ago. Notwithstanding Netkas' questionable ownership (which he has yet to formally claim, btw) of any code in the emulator which may or may not possibly be copyrightable (and the EFI Emulator itself is built on much open source and public domain code), Netkas cannot under US law remove it from the public domain. The authors freely distributed it with no license for more than two years with the intent of unrestricted dissemination. Under U.S. law, that constitutes placing the code in the public domain. Once the code has been placed in the public domain, it cannot be later removed from the public domain. By placing the code in the public domain, the author irrevocably relinquishes all ownership and rights in the copyright. "
"Programs that are uncopyrighted because their authors intended to share them with everyone else are in the public domain. Programs in the public domain can be used without restriction as components of other programs."
The test of whether software has passed into the public domain is set out in Computer Associates Int'l v. Altai, 982 F.2d 693.This decision holds that computer software may enter the public domain through "freely accessible program exchanges and the like," or by becoming "commonplace in the computer industry." If the authors original intent was to distribute the code unrestricted and encourage the unrestricted distribution of the code, then the code falls into the public domain.
2. Apple may well be barred from taking action against Psystar by the doctrine of laches. Apple has allowed the OSX86 organization to very publicly post the code for the emulator with not so much as a warning letter or cease and desist. Not a single complaint from Apple in more than 2 years. Psystar has a very good argument that it has relied on Apples very public and very well known and obviously deliberate neglect to enforce the EULA over the last two years. I believe that this very concise definition is applicable: "In general, when a party has been guilty of laches in enforcing his right by great delay and lapse of time, this circumstance will at common law prejudice and sometimes operate in bar of a remedy which is discretionary for the court to afford. In courts of equity delay will also generally be prejudicial."
3. Neither the OSX86 project or Psystar are modifying any of Apple's proprietary code. The kernel of OSX is openBSD. This code is public domain and/or open source. Not only can anyone freely modify that portion of OSX, but in as far as the Open Source portions, Apple is REQUIRED under the terms of Open Source licenses to provide the non-proprietary source code to anyone that requests it. Apple acknowledges as much in its EULA:
"D. Certain components of the Apple Software, and third party open source programs included with the Apple Software, have been or may be made available by Apple on its Open Source web site
(http://www.opensource.apple.com/) (collectively the "Open-Sourced Components"). You may modify or replace only these Open-Sourced Components; provided that: (i) the resultant modified Apple Software is used, in place of the unmodified Apple Software, on a single Apple-labeled computer; and (ii) you otherwise comply with the terms of this License and any applicable licensing terms governing use of the Open-Sourced Components. Apple is not obligated to provide any updates, maintenance, warranty, technical or other support, or services for the resultant modified Apple Software.
You expressly acknowledge that if failure or damage to Apple hardware results from modification of the Open-Sourced Components of the Apple Software, such failure or damage is excluded from the terms of the Apple hardware warranty."
4. Many jurisdictions in the US and Europe do not recognize EULA's or severely restrict their application. In these so called "anti-UTICA" jurisdictions that have formally classified shrink-wrap software as goods subject to the UCC, the EULA provisions like the one in question are not enforceable, as those jurisdictions do not recognize software as licensed, but instead classify software as goods subject to consumer protection regulations and the laws governing the use of goods.
5. Psystar's claim that Apple is acting as a monopoly is not without some merit, and probably grounded in a judgment rendered by the Court of Appeals for the Ninth District in the case of DigiDyne Corp. Vs. Data General ( 734 F.2d 1336 (9th circuit, 1984)) which held that Data General’s refusal to license its copyrighted computer software to those who did not purchase its hardware was an unlawful tying arrangement, and this was not over-turned by the U.S. Supreme Court. Generally, these types of issues are decided on a case-by-case basis.
6. Even if Apple's EULA could be found enforceable, Apple's recourse is extremely limited by the EULA itself. . Liquidated damages can only be recovered if they are set out in the contract. Attorney fees and costs can only be recovered if they are set out in the contract. Punitive damages are generally not allowed in breach of contract cases. Compensatory damages are generally limited to direct actual monetary loss. Generally, courts have limited relief in breach of Contract suits to either specific performance or involuntary termination. Not even a reliance award would be applicable here, as Psystar has made no direct representations to Apple.
Apple would be better of accepting Dell's offer to pre-install OS-X as an alternative to Vista (which Jobs turned down). there are several Dell computers that can run the "Vanilla" OS-X kernel, and that can be priced comparable to Psystar's that Apple could "certify" as being OS-X compliant. Dell would force the small shops like Psystar out of the market, just like they did the small PC cloners. And Apple would sell a boatload of OS-X, just like Microsoft did with Windows.
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