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Judge OKs Psystar's Countersuit Against Apple

By - Source: Tom's Hardware US | B 51 comments

Earlier in the week we reported that a German company was following in the footsteps of Mac clone company Psystar, and offering machines running OS X on non Apple-branded hardware.

While Apple has yet to respond the Ultrameganet’s claims about the validity of the OS X EULA in Germany, further developments in the Psystar case are no doubt keeping the Cupertino-based company’s lawyers busy.

According to ComputerWorld, a federal judge last week signed an order giving Psystar the OK to amend its countersuit against Apple. On Friday U.S. District Court Judge William Alsup ruled that Psystar may change that countersuit, which originally accused Apple of breaking antitrust laws, to instead ague that Apple has stretched copyright laws by tying the Mac operating system to its hardware.

The OS X EULA states that the software can only be installed on Apple-branded machines and according to Apple, Psystar is violating that licensing agreement. However, Psystar says that’s akin to saying Honda owners can only drive on Honda-approved roads and filed an anti-trust suit.

Alsup threw out that suit at the end of last year. The judge handed down a 19-page ruling that said Apple is not abusing its position in the market and we assumed that would be the end of it, despite Psystar’s desperate accusations that Apple was abusing its copyright on Mac OS X to stifle competition. According to a report in CNet:

“Psystar alleges that by virtue of Apple’s leveraging of copyrights in the context of Apple’s EULA, spurious litigation via the DMCA, and various other anti- and unfair competitive conduct, there is no viable alternative to the purchase and use of Apple-Labeled Computer Hardware Systems for users who wish to use the Mac OS, for a prospective buyer of the Mac OS, or for a user of an older version of the Mac OS.”

CW reports that Alsup said last week if Psystar proves that Apple abused copyright laws, some of Apple's charges against the company would be dismissed and seem to hint that others would then be free to follow in Psystar's footsteps. "Moreover, if established, misuse would bar enforcement (for the period of misuse) not only as to defendants who are actually party to the challenged license but also as to potential defendants not themselves injured by the misuse who may have similar interests," he said.

Read the full report on ComputerWorld.

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  • 0 Hide
    jsloan , February 11, 2009 6:33 PM
    i hope that the legal system hand apple their azzes and allows clones. the osx license agreement is anti competitive in nature imagine your auto dealer telling you that you can only use their tires on their cars or their radios in their cars, ect. nonsense, apple has been able to get away with this nonsense like sco got away with their nonsense until the legal system put an end to it.
  • -2 Hide
    AndrewMD , February 11, 2009 7:15 PM
    jsloan,

    Auto Manufactures in fact can tell you what you can and cannot do with your (their) car. If you continue to use the wheels supplied with your car, then you will need to purchase tires that fit that spec, Radios are the same, now that people want it to look more integrated with the car, it is harder to replace it with an aftermarket.

    Now what I believe you were trying to say was A dealer cannot make you stay with them for all work performed on your car. That would be illegal.

  • 0 Hide
    2GooDrumr , February 11, 2009 7:24 PM
    Apple really depresses me. I'm totally a die-hard windows user, but that's besides the point. Back a week or two ago there was an article on Toms Guide about the newest copyright Apple has submitted, effectively barring any future companies fro even thinking about multi touch technology. Mac just keeps waving its user agreements and the likes around (iTunes...). I'd like to see them at least have to rethink their policies once.
  • Display all 51 comments.
  • 0 Hide
    m3kt3k , February 11, 2009 7:54 PM
    AndrewMD UMMM you are wrong. They can tell you they would void the warranty but not that you cant use them.
  • 0 Hide
    etrnl_frost , February 11, 2009 8:04 PM
    andrewmd, That's not quite the same as what's being described here. Even if you get different spec wheels and tires, often times you'll have a choice of manufacturer for those options. More often then not, 3 or more different manufacturers. Radios, too, are easily replaced with non OEM parts.

    With Apple, you can't buy from other manufacturers. You can only buy apple equipment to run the OS X.

    Look at Microsoft or Linux's OS's, for example, which while they must have hardware requirements met, there are many different ways of reaching these requirements through several different manufacturer's. You don't NEED to use a MS licensed CPU. You don't need an MS licensed Mobo. Or chassis. Or PSU. Or whatever.
  • 0 Hide
    tayb , February 11, 2009 8:07 PM
    2GooDrumrApple really depresses me. I'm totally a die-hard windows user, but that's besides the point. Back a week or two ago there was an article on Toms Guide about the newest copyright Apple has submitted, effectively barring any future companies fro even thinking about multi touch technology. Mac just keeps waving its user agreements and the likes around (iTunes...). I'd like to see them at least have to rethink their policies once.


    The most ridiculous part of the multi touch patent is the fact that Microsoft had the Surface almost two years before the iPhone was even launched. Dell also had the XT which launched 6 months before the iPhone that featured multi touch. They weren't even close to being the pioneers behind the technology but somehow they are awarded a patent for it.
  • 1 Hide
    geoffs , February 11, 2009 8:19 PM
    All of which completely ignores the fact that the only way to get a non-upgrade license for OS X is to buy a Mac. You can't run OS X on a PsyStar machine because PsyStar can't sell you a full copy of OS X, they can only sell an upgrade, and the upgrade license (which is clearly valid), says you have to own a qualifying previous version of Mac OS to use it. Like it or not, Apple's EULA limiting it to Apple hardware is valid.
  • 0 Hide
    smalltime0 , February 11, 2009 8:46 PM
    taybThe most ridiculous part of the multi touch patent is the fact that Microsoft had the Surface almost two years before the iPhone was even launched. Dell also had the XT which launched 6 months before the iPhone that featured multi touch. They weren't even close to being the pioneers behind the technology but somehow they are awarded a patent for it.

    they've been awarded patents for almost every way of doing touch and several functions.... it borders on insanity. If Microsoft or IBM tried to file some of the patents Apple does they'd get laughed out of the patent office. And if they did get the patents they'd be subject to all sorts of rulings by the EU etc.

    I really do hope Pystar win, but I have to wonder... where are they getting their cash to fight this battle?
  • -1 Hide
    jsloan , February 11, 2009 8:50 PM
    osx only upgrade? can you do a full install with it, then its more than an upgrade. a manufacturer can suggest what how they would want you to use their product, but you are buying a copy that you can do what you will, so long as you don't make illegal copies, and installation is not maing an illegal copy. also the car wheels size is tied to the rim size, you can get after market rims of different sizes for any car, you can change anything you want about your car, including the computer and roms, their are after market shops that sell cheap roms, with tweaks. the thing is if you don't know what you are doing you can get hurt or cause an accident, but you are not prevented from doing it, so long as it passes inspection, for example it has to be able to stop at x speed in y feet or whatever the state you have the car registered in asks for... don't worry with any luck the apple clones will be available to everyone in no time and apple will have to find another way to stick it to their customers.
  • 0 Hide
    curnel_D , February 11, 2009 8:52 PM
    geoffsAll of which completely ignores the fact that the only way to get a non-upgrade license for OS X is to buy a Mac. You can't run OS X on a PsyStar machine because PsyStar can't sell you a full copy of OS X, they can only sell an upgrade, and the upgrade license (which is clearly valid), says you have to own a qualifying previous version of Mac OS to use it. Like it or not, Apple's EULA limiting it to Apple hardware is valid.

    I think that was made clear by phystar amending it's case. Now they're trying to convince the courts that doing so in the first place is anti-competitve, which for the most part is true. If the judges arent payed off by apple, phystar has a decent chance at winning I think.
  • 0 Hide
    geoffs , February 11, 2009 9:59 PM
    Quote:
    Now they're trying to convince the courts that doing so in the first place is anti-competitve, which for the most part is true.

    Possibly, but most hardware comes with software that is licensed only for use on that hardware. For instance, the BIOS, OEM versions of Windows, the software in your TV, DVD player, stereo, mp3 player, etc. It's all licensed only to run on the piece of hardware with which it was purchased, and you're paying for the software in the price of the hardware. Mac OS X is no different, it just happens to be capable of being made to execute on other hardware.

    Tivo makes great DVR software, I really like it, but I can buy a much cheaper DVR from someone else. Should I be able to pirate Tivo's software and hack it to work on a brand X DVR? What about Apple's iPod software, should I be able to hack it to work on a Creative, Sansa, or Zune device? What about installing the Zune software on a non-Zune device? How about running RIM's Blackberry software on a Palm, Nokia, or Samsung phone? You can't buy/license the software for any of those devices separately from the hardware. What about device drivers for video cards, NICs, etc., they generally only work with one manufacturer's cards (or when they're supplied by the chip manufacturer, maybe most cards using that chip). Because I can download or purchase upgrades for the software for those, does that mean I can install that upgrade on a completely different device? (hint, NO!)
    Software is almost ALWAYS licensed only for use on the device with which it was purchased. Third party (i.e. not the hardware vendor and not the consumer) software is the exception. Mac OS X is NOT third party software and it's not licensed for use on anything other than a Mac.

    Given that no one is forced to buy an Apple computer, there are plenty of other choices, and in fact, most people buy something other than a Mac. Windows has 80% of the market and Linux and Mac OS X each have less than 10%, obviously, Apple isn't stopping anyone from buying computers nor limiting anything except their own market. There is nothing anti-competitive about it. It may be foolish, it may be poor strategy, but it's not anti-competitive or illegal.

    The Mac OS X software that PsyStar is "buying from Apple" and including with their machines, is an upgrade license only, but those machines don't have an original Mac OS X license to upgrade, so it's a violation of the license terms to install and use that software on the PsyStar machine. Unless Apple and PsyStar can agree to terms for original licenses for the PsyStar machines, anyone using Mac OS X on PsyStar machines is violating the EULA, and therefore, the copyright.

    PsyStar is wasting time and money. They will lose.
  • 1 Hide
    Maxor127 , February 11, 2009 10:01 PM
    Apple is fully within its rights to restrict its OS to certain machines. Macs are fully supported by Apple, and they have no responsibility to make it usable on other machines or the tech support headaches that would cause. With everyone's moronic analogy about Honda and roads, a better analogy would be what if someone hacked an Xbox to play Playstation games or vice versa. Apple doesn't want its brand and system associated and confused with some hack machine. It's a bootleg Mac, simple as that. Plus Psystar seems less than reputable. If you're so anti-Apple, then don't use OS X. Simple as that.
  • 0 Hide
    geoffs , February 11, 2009 10:07 PM
    Quote:
    osx only upgrade? can you do a full install with it, then its more than an upgrade. a manufacturer can suggest what how they would want you to use their product, but you are buying a copy that you can do what you will

    Incorrect. You generally don't buy software, you buy a license to use the software subject to the license terms. There are exceptions, but they are few and Mac OS X is not one of the exceptions. The fact that Apple allows a full install (only on Apple hardware) does not change the terms of the license. The ability to do a full install on Apple hardware is provided as a convenience to the user so they can do a clean install without having to go back to the install disks that came with the computer. Since every Mac ever sold includes a license to use the OS, Apple can assume that if you're installing it on Apple Macintosh hardware that meets the system requirements, then that machine is licensed to run Mac OS, ergo, it qualifies for the upgrade.
  • -1 Hide
    mdillenbeck , February 11, 2009 10:08 PM
    PsyStar may lose, but the important point is they are trying to bring to issue the broken patent system we have with IP.

    Personally, I believe Apple has the right to restrict support for their software to their hardware - all other uses are at the end users own personal risk and no guarantees of usability would apply. However, to make it a criminal offense to put it on different hardware seems extreme.

    To go back to the car analogy, it would be like the auto manufacturer stating any wheels found on your car by a third-party manufacturer would result in you paying a heafty fine and loss of the tires seems a bit rediculous - and that is what Apple is doing when they say "our hardware or else". It does not matter that there are other car manufacturers who let you put third party tires on your car... to say that their actions are legal because you can always go buy a different manufacture's car seems a bit weak to me.

    Again, this is just my opinion.
  • 0 Hide
    miltoxbeyond , February 11, 2009 10:17 PM
    Well they could simply have the EULA state that Apple will only support Mac Hardware since it is their obligation as the builders but unbind their software from Mac Machines so other people, or companies can provide their own support on different machines...

    in fact, if they pulled that early enough, 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 would then probably have to just upgrade their product line or reduce their selling price to sell more of Their Hardware...
  • 0 Hide
    geoffs , February 11, 2009 10:24 PM
    Quote:
    ...More often then not, 3 or more different manufacturers. Radios, too, are easily replaced with non OEM parts.

    With Apple, you can't buy from other manufacturers. You can only buy apple equipment to run the OS X.

    Not quite correct, you can use non-Apple parts in your Mac, people do it all the time, but you must have a Mac. A more appropriate analogy is that you can't run Chevy's engine control software on a non GM engine. You can then use non-GM parts on that engine, but you had to buy a GM engine to start.

    Quote:
    Look at Microsoft or Linux's OS's, for example, which while they must have hardware requirements met, there are many different ways of reaching these requirements through several different manufacturer's. You don't NEED to use a MS licensed CPU. You don't need an MS licensed Mobo. Or chassis. Or PSU. Or whatever.

    True, but MS and Linux have different business models (from each other and from Apple). If you look at the cost of Windows (XP Pro, Vista Pro, full version, not an upgrade) vs. the cost of a Mac OS X upgrade, you'll see that MS also charges a lot for that license. Mac OS X upgrades are inexpensive (similar in price to Windows upgrades) precisely because they are upgrades, not full licenses. Mac users paid for the full license when they bought the Mac, just as Windows users pay for a full license when they buy a new machine with Windows.

    Linux is a different model completely, while it looks similar to MS model, the pricing (or lack thereof) makes it a completely different business model (ask anyone selling or distributing FOSS about the challenges of that model). I am a big fan of FOSS, and I hope it continues to grow, but it's definitely a challenging business.
  • 1 Hide
    geoffs , February 11, 2009 10:35 PM
    Quote:
    However, to make it a criminal offense to put it on different hardware seems extreme.
    It IS a criminal offense when you're making money off violating the terms of a license under copyright. Just as it's an offense to copy and sell CDs, DVDs, etc., when PsyStar started selling machines with Mac OS X that violated the license/copyright, they broke the law AND they were doing it for profit. It IS a crime, and it exposes PsyStar's officers to both civil and criminal penalties, just as if they had copied and distributed the Mac OS X install DVD.

    To the best of my knowledge, Apple has not taken action against individuals who have built their own "hackintosh" and installed Mac OS X on it. It's still a license and copyright violation, but it can be tough to get any damages from someone who is doing so for their own personal use.
  • -1 Hide
    jsloan , February 11, 2009 11:03 PM
    geoffsPossibly, but most hardware comes with software that is licensed only for use on that hardware. For instance, the BIOS, OEM versions of Windows, the software in your TV, DVD player, stereo, mp3 player, etc. It's all licensed only to run on the piece of hardware with which it was purchased, and you're paying for the software in the price of the hardware. Mac OS X is no different, it just happens to be capable of being made to execute on other hardware.Tivo makes great DVR software, I really like it, but I can buy a much cheaper DVR from someone else. Should I be able to pirate Tivo's software and hack it to work on a brand X DVR? What about Apple's iPod software, should I be able to hack it to work on a Creative, Sansa, or Zune device? What about installing the Zune software on a non-Zune device? How about running RIM's Blackberry software on a Palm, Nokia, or Samsung phone? You can't buy/license the software for any of those devices separately from the hardware. What about device drivers for video cards, NICs, etc., they generally only work with one manufacturer's cards (or when they're supplied by the chip manufacturer, maybe most cards using that chip). Because I can download or purchase upgrades for the software for those, does that mean I can install that upgrade on a completely different device? (hint, NO!)Software is almost ALWAYS licensed only for use on the device with which it was purchased. Third party (i.e. not the hardware vendor and not the consumer) software is the exception. Mac OS X is NOT third party software and it's not licensed for use on anything other than a Mac.Given that no one is forced to buy an Apple computer, there are plenty of other choices, and in fact, most people buy something other than a Mac. Windows has 80% of the market and Linux and Mac OS X each have less than 10%, obviously, Apple isn't stopping anyone from buying computers nor limiting anything except their own market. There is nothing anti-competitive about it. It may be foolish, it may be poor strategy, but it's not anti-competitive or illegal.The Mac OS X software that PsyStar is "buying from Apple" and including with their machines, is an upgrade license only, but those machines don't have an original Mac OS X license to upgrade, so it's a violation of the license terms to install and use that software on the PsyStar machine. Unless Apple and PsyStar can agree to terms for original licenses for the PsyStar machines, anyone using Mac OS X on PsyStar machines is violating the EULA, and therefore, the copyright.PsyStar is wasting time and money. They will lose.



    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

    apple should be happy that people are interested in their os, over linux, windows

    they should come up with way. to oem or sell it and make some money

    i bet a lot of window people would buy it, like they buy windows and even run it on box they put together or maybe in virtual vm

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

    i personally hope that apple loses this one. i would buy a copy of their os and install it in vm

    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

    what are they afraid of, everyone would use their stuff, or better that only 10% of the market would, oh i forgot that is where they are now

    let me tell you a little secret, in early days i used to sell original apple ii, and you know what, apple, steve jobs are the only company that i know that can turn a product that everyone would happily own and turn it into a product that only 10% would.

    they owned a number of markets, but then they make it hard to sell or buy. big hardware mentality, and it turns people off, so they go somewhere else.

    they come up with stuff and its company like microsoft the get it into the hands of the public.
  • 0 Hide
    jsloan , February 11, 2009 11:05 PM
    MDillenbeckPsyStar may lose, but the important point is they are trying to bring to issue the broken patent system we have with IP.Personally, I believe Apple has the right to restrict support for their software to their hardware - all other uses are at the end users own personal risk and no guarantees of usability would apply. However, to make it a criminal offense to put it on different hardware seems extreme.To go back to the car analogy, it would be like the auto manufacturer stating any wheels found on your car by a third-party manufacturer would result in you paying a heafty fine and loss of the tires seems a bit rediculous - and that is what Apple is doing when they say "our hardware or else". It does not matter that there are other car manufacturers who let you put third party tires on your car... to say that their actions are legal because you can always go buy a different manufacture's car seems a bit weak to me.Again, this is just my opinion.


    i think this is where it will end up, they wont have to support it, guarantee voided because its running on hardware it was never intended to be run on or supported.

    it'll be like going out there replacing your car break system and then the dealer wont warrant it, but they will be happy to fix your car, but for $$$
  • -1 Hide
    jsloan , February 11, 2009 11:13 PM
    geoffsIt IS a criminal offense when you're making money off violating the terms of a license under copyright. Just as it's an offense to copy and sell CDs, DVDs, etc., when PsyStar started selling machines with Mac OS X that violated the license/copyright, they broke the law AND they were doing it for profit. It IS a crime, and it exposes PsyStar's officers to both civil and criminal penalties, just as if they had copied and distributed the Mac OS X install DVD.To the best of my knowledge, Apple has not taken action against individuals who have built their own "hackintosh" and installed Mac OS X on it. It's still a license and copyright violation, but it can be tough to get any damages from someone who is doing so for their own personal use.


    when you agree to an agreement the agreement itself must be enforceable, it has to be legal. the courts will decide whether the apple one is enforceable and legal.

    maybe apple agreements asks you or limits you to do something that the law will not enforce or that is illegal to ask someone now to do.

    is there a computer software industry lawyer or copyright lawyer that would give us their thoughts

    for example i can make a back up of my dvds, the dvd company cant stop me or ask me not to do so as an agreement for them to sell me their for example dvd movie. me making a backup copy is not considered by the courts as a violation of their copyright.

    see there are limits to what company's can ask of us.

    if apple wanted this stop they could stronly encrypt their software and have a hardware decryptor in their apple computers. so then noone could install it without the hardware decryptor and it would be violation for me to break their encryption, their are some limit on this. the law does allow me to break encryption for certains uses, like educational, law enforcement.

    but they cant stop me from going on ebay buying a used broken apple, take the decryptor component out make my own little board and then use that and their software in my own custom computer.
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