decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Psystar files suit against Apple in Florida - What Are They Thinking? - Updated
Friday, August 28 2009 @ 11:23 PM EDT

Psystar has filed suit against Apple in the U.S. District Court for the Southern District of Florida in Miami, asking for a declaratory judgment that it's legal for them to sell Apple's upcoming Snow Leopard on their nonApple hardware. I know. There is already litigation between these parties in California. What are they thinking?

They are thinking they'll sue in Florida over Snow Leopard, instead of Mac OSX Leopard. Get it? It's entirely different, they claim, technically and legally.

But that's not what it's really about, in my view. What it's about now, stage front and center, is what I told you I suspected the California litigation was really about: it's about first sale. This is, then, I believe, a legal effort to destroy the GPL. This is the second such effort. SCO was the first. Somebody really, really wants to destroy the GPL, not just Apple's business reputation.

Here's the docket:

08/27/2009 - 1 - COMPLAINT against Apple Inc.. Filing fee $ 350.00 Receipt#: 547285, filed by Psystar Corporation.(mmo) (Entered: 08/27/2009)

08/27/2009 - 2 - Summons Issued as to Apple Inc. (mmo) (Entered: 08/27/2009)

So, Psystar is trying for an end run around the California court, where it's obvious their goose is cooked. Here's the difference, according to Psystar:
8. The Psystar computers that run Mac OS X Snow Leopard are able to do so by running software, written by Psystar, that interfaces with the open-source portion of Mac OS X Snow Leopard. The manner in which Psystar computers run Mac OS X Snow Leopard is entirely different from the manner in which Psystar computers run Mac OS X Leopard. Both the technical details of Apple's attempt to tie Mac OS X to Macintoshes and the computer software that Psystaar uses to enable Mac OS X to run on Psystar computers changed with the release of Snow Leopard. Accordingly, the factual and technical issues in this case are entirely different from those at issue in the California litigation, which is limited to Psystar computers that run Mac OS X Leopard.
Here's what didn't change: Psystar and whoever is behind Psystar are exactly how they were before. They claim, by the way, that discovery is over in the California litigation, but you saw that the judge there just asked for supplemental briefing on a discovery dispute there. Blech.

They also want an injunction and damages, no less. They have resurrected the allegation that Apple is anticompetitive, collecting "monopoly rents", by tying hardware and software, and by not letting Psystar buy their software and put it on nonApple hardware. The court in California already ruled that Apple is not guilty of any antitrust violations, that there is no tying violation, but Psystar is like SCO. They don't care. If a court rules against their "tying" argument, they try another court, using whatever they can think of. Snow Leopard instead of Leopard. Psystar wants a do over.

This will give you a taste for the plausibility of their complaint:

2. Psystar computers outperform comparable Macintoshes sold by Apple, in large part because of the superior hardware that Psystar sells.
And here's the first sale part:
16. Psystar seeks first a declaration that its activities with respect to Mac OS X Snow Leopard do not constitute copyright infringement. Psystar intends to purchase every copy of Mac OS X Snow Leopard that it resells with its computers, as has been its practice with prior versions of Mac OS X. It purchases these copies both directly from Apple and through resellers like Amazon and Best Buy. The Copyright Act expressly permits Psystar to take steps necessary to run Mac OS X Snow Leopard on its computers, even if these steps require making incidental copies of Mac OS X Snow Leopard. See 17 U.S.C. § 117(a). The Copyright Act also expressly permits Psystar to resell the particular copies of Mac OS X Snow Leopard that it has lawfully purchased. See 17 U.S.C. §109 (the first-sale doctrine). Psystar's customers are then permitted by §117 to again make copies necessary to run Mac OS X Snow Leopard on their Psystar computers. Together, §§109 and 117 render Psystar's actions with respect to Mac OS X Snow Leopard not copyright infringement.
Oh, brother. Then Psystar adds, "Moreover, Psystar seeks a declaration that the license agreement is unenforceable for lack of privity and lack of consideration."

Of course, it wants the Florida court to also declare it isn't violating the DMCA with Snow Leopard. It doesn't "gain access to Apple's copyrighted work", and anyway, it says its acts "fall within §1201(f), which permits circumvention for purposes of achieving interoperability between a copyrighted computer program and other programs." But then it adds, "Any circumvention by Psystar is solely for the purposes of making Psystar's software (which allows Mac OS X Snow Leopard to run on Psystar's computers) interoperable with Mac OS X Snow Leopard."

Where to begin? It doesn't bypass but then again it does so legally. Is their new lawyer not a techie? Mac OSX doesn't need Psystar code to be interoperable with itself. And here's a question: Psystar claims that it doesn't use anything but the open source Apple code with Snow Leopard. If that is so, does Psystar carefully remove all the proprietary code before distributing to customers? If not, what part of copyright law gives Psystar distribution rights to Apple's proprietary software code bundled in with the rest?

I'm sorry, but Psystar lost fair and square in California on the antitrust claims. To try to do it again in Florida makes a mockery of the legal system, in my view. And to put the cherry on top, Psystar asks for money damages for "lost sales and injury to Psystar's business reputation and to the reputation of its personal computer products." Treble damages. When Psystar says they are cowboys, they don't mean Roy Rogers.

It's docket #: 1:09-cv-22535-WMH, Psystar Corporation v. Apple Inc.

By the way, Bloomberg is reporting that Apple says iPhones with shattered screens "showed outside pressure caused the cracking", not batteries overheading:

“In all cases the glass cracked due to an external force that was applied to the iPhone,” Alan Hely, a London-based spokesman for Apple Europe, said in an e-mail. “There are no confirmed battery overheating incidents for iPhone 3GS and the number of reports we are investigating is in the single digits.”

Apple, based in Cupertino, California, has sold 26 million iPhones since introducing the product in 2007.

Wouldn't it be weird if some folks were falsely accusing Apple? Who would want Apple to get bad press?

Update: Psystar has issued a company statement, "setting the record straight", and here is part of it:

Apple has done a great job creating a stylish and functional operating system. That’s why we buy and use Apple products. We never set out to conquer Apple, what we wish is to coexist with Apple as a competitor in the industry.

It is our goal at Psystar to offer a great product (OS X) to people who are not included in Apple’s target market. Steve Jobs has even said, “There are some customers which we choose not to serve.” Some people simply cannot afford an Apple computer. Others would like to see better performance from their machines with hardware configurations that Apple does not provide. Our Psystar machines were developed to fill niches that a larger corporation like Apple doesn’t serve.

Then perhaps Psystar should consider writing its own operating system and hence offering normal and actual competition?

And it's put out a press release about its latest offering, which hilariously ends by saying you can't install XP:

Psystar Announces the Release of Their Complete Computer Systems with the Rebel Series

Psystar, the leading manufacturer of OS X- compatible PCs, is now offering the Rebel series, pre-installed OS X machines complete with a monitor, wireless keyboard & mouse. The Rebel 19" and the Rebel 22" ship ready to use from the box, and as compared to Apple's iMac line, offer the most affordable PC running OS X.

Miami, FL (PRWEB) August 27, 2009 -- - Psystar, the leading manufacturer of OS X- compatible PCs, is now offering the Rebel series, pre-installed OS X machines complete with a monitor, wireless keyboard & mouse. The Rebel 19" and the Rebel 22" ship ready to use from the box, and as compared to Apple's iMac line, offer the most affordable PC running OS X. Expandable, faster and cheaper than a similarly configured iMac the Rebel series boasts as much as a 66% improvement in processing power as compared to a similar iMac. Combined with the Darwin Universal Boot Loader (DUBL) that allows for the easy installation of additional hard drives, each configurable with an OS of your choice*, our Rebel machines are the next evolution in computing power.

The Rebel 19" ships with a 19" monitor, 2.33 GHz Intel Quad Core processor and 500 GB hard drive. With more processing power, a larger hard drive and a superior graphics card than the iMac 20", the Rebel still comes in at a more affordable price at $899, a savings of $300 as compared to Apple's hardware. Unlike Apple's computers, which can be difficult and cumbersome to upgrade hardware, Psystar machines allow for easy expandability.

Even the higher end iMac 24" cannot compete with Rebel 22" , which ships with a 3.0 GHz Intel Quad Core processor. Using benchmarking software, the Rebel 22" out performs the pricier Mac on a number of levels from Integer processing to memory bandwidth tests, with a 66% better overall score and at $1299, the Rebel 22" comes in at $900 less than the $2199 iMac 24".

The DUBL, now being offered in new computers shipping from Psystar, allows for the installation of additional hard drives, each with its own operating system*. The Darwin Universal Boot Loader can identify new hard drives attached to the computer and allows for the user to easily install a different operating system on it.

The Rebel series, coupled with Psystar's unique DUBL technology offers a machine which not only has better processing performance out of the box, but one that can adapt with you as your computing needs change. That our Rebels are faster, cheaper and more expandable than a comparable Mac is what has led to the claim that " Its not a Mac, its better!" For a direct comparison of hardware configurations and performance differences, visit Psystar.com.

*DUBL currently does not support the installation of XP.


  


Psystar files suit against Apple in Florida - What Are They Thinking? - Updated | 301 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections please
Authored by: Tufty on Friday, August 28 2009 @ 11:28 PM EDT
Summary in the title

---
Linux powered squirrel.

[ Reply to This | # ]

Off Topic here
Authored by: Tufty on Friday, August 28 2009 @ 11:29 PM EDT
All yer off tropic as well

---
Linux powered squirrel.

[ Reply to This | # ]

News picks here
Authored by: Tufty on Friday, August 28 2009 @ 11:30 PM EDT
All the latest

---
Linux powered squirrel.

[ Reply to This | # ]

And exactly HOW would this be an attack on GPL ???
Authored by: Anonymous on Friday, August 28 2009 @ 11:33 PM EDT
I am a GPL programmer, not hired by any software or hardware company. This
dispute is a bit baffling but the wish to have non Apple hardware to run Apple
software is old and I can perfectly understand it.

I do not take any stand in the commercial warfare going on.

But please, explain how this would destroy GPL???? This is in the article
introduction but then there is no further mention or explanation of this.

[ Reply to This | # ]

Easy way for Apple to check for compatible hardware
Authored by: Anonymous on Friday, August 28 2009 @ 11:35 PM EDT
The easiest way for Apple to check for compatible and supported hardware is to
do the
following:

1. Mac OS X Installer does a checksum on the firmware of the Mac and does a
hardware
check. This verifies that the computer is a Mac that is supported by that
version of Mac OS
X. The Installer will only run on supported versions. If it is a new Mac
model, then the
Installer can log onto Apple's website and download information about the new
models.
Since there are only a limited number of Mac models, this should be easy and
transparent to
do.

2. Mac OS X Software Update does the same thing. It will only updated supported
models of
Macs. It will update its list of supported Models with information about the
firmware and
hardware.

3. Mac OS X Software Update during the update process downloads a hardware
verification
program that runs to verify the hardware.

4. Downloaded update software installers do the same thing.

[ Reply to This | # ]

I can't imagine this is about the GPL.
Authored by: Anonymous on Friday, August 28 2009 @ 11:49 PM EDT
I can't imagine this is about the GPL. If the goal is to set precedent in
court, I would think you would want to sue someone with shallow pockets, so they
couldn't do a good job of defending themselves.

Apple is certainly not a target you'd pick if you were just wanting someone with
a limiting EULA to try to stomp in court to set precedent. There are bunches of
little startup-sized companies that sell their software with restrictive license
you could pick instead, and you'd be fighting Joe-the-neighborhood-lawyer rather
than Cupertino's finest.

No, if this is conspiracy, I would say it has to be aimed straight at Apple. Or
maybe at defending EULAs, by setting up Psystar to fail in a SCO-sized
smouldering crater.

[ Reply to This | # ]

Psystar files suit against Apple in Florida - What Are They Thinking?
Authored by: kenryan on Saturday, August 29 2009 @ 12:02 AM EDT
I have no love for Apple (their shennanigans with App Store and the
iPhone/iTouch really soured me on them - I think when you buy a piece of
hardware nobody should have any claim on what you do with it; locking the thing
down is downright unethical).

However this Psystar business is the flip-side of the situation. I am perfectly
willing to accept software that is "licensed not sold". Same as if
Apple only rented out their hardware. As a result, I can't see how Psystar can
possibly get around the fact that the OSX they're buying is licensed only to
customers who already have a base license (what their machine came with).
They're trying to get court approval for violating copyright.

(I almost wrote "piracy" but using the same word for copyright
violations as pillage & murder is just wrong).

Now, an interesting business might be to take Apple-brand computers that are
pushing obsolescence and remanufacturing them (CPU and memory upgrade, snazzy
case, etc.). I would think in that case the chain of license ownership for the
OS would be intact and Apple would be out of luck. It would be interesting to
see if you could do that profitably. To be conservative you might need to use
the same parts (same CPUs, same graphics chips, etc) for stuff that requires
kernel drivers; I have no idea if the OSX kernel has loadable device drivers or
not (at least the idea of writing device drivers is a derivative works question
worthy of legal discussion).

No, I have no intention of trying it myself (unless one of these lottery tickets
on my desk pans out, then ... nah, too lazy).

---
ken
(speaking only for myself, IANAL)

[ Reply to This | # ]

Low tide toninght
Authored by: Anonymous on Saturday, August 29 2009 @ 12:06 AM EDT
The reporting of court filings and legal arguments is, as usual, interesting and
I find it trustworthy.

The speculation about hidden motives is not ampty and convincing and does not
help Groklaw stay a trustworthy source.

[ Reply to This | # ]

  • Low tide toninght - Authored by: Anonymous on Saturday, August 29 2009 @ 12:08 AM EDT
  • I agree - Authored by: Anonymous on Saturday, August 29 2009 @ 08:59 AM EDT
  • I agree - Authored by: Anonymous on Saturday, August 29 2009 @ 09:01 AM EDT
    • I agree - Authored by: PJ on Saturday, August 29 2009 @ 10:24 AM EDT
      • I agree - Authored by: sclark46 on Saturday, August 29 2009 @ 05:23 PM EDT
        • I agree - Authored by: Anonymous on Saturday, August 29 2009 @ 08:38 PM EDT
      • I agree - Authored by: Anonymous on Sunday, August 30 2009 @ 04:09 AM EDT
        • I agree - Authored by: Anonymous on Sunday, August 30 2009 @ 02:13 PM EDT
  • Pulling the Strings are ............ - Authored by: Anonymous on Saturday, August 29 2009 @ 04:38 PM EDT
  • Exposing the pollution - Authored by: Anonymous on Sunday, August 30 2009 @ 12:24 PM EDT
PJ you are on the wrong end of this one...
Authored by: Anonymous on Saturday, August 29 2009 @ 12:23 AM EDT
If Psystar wins, the world is freer.

The interoperability Psystar is talking about is between the BIOS software and
MacOS X. This is what they are saying about the DMCA. DMCA violation is a very
weak argument on Apple's side anyway.

First Sale doctrine should allow Psystar do what they are doing. Why should I
be prohibited to run software on any system I choose when NO OTHER COPYRIGHT
HOLDER has that right? This is space shifting of owned copyrighted material,
just like transferring a CD on to an mp3 player.

[ Reply to This | # ]

First Sale Doctrine
Authored by: proceng on Saturday, August 29 2009 @ 12:32 AM EDT
The Copyright Act expressly permits Psystar to take steps necessary to run Mac OS X Snow Leopard on its computers, even if these steps require making incidental copies of Mac OS X Snow Leopard.
They (Psystar) might have an argument here if they purchased the software for their own use, tired of it (for whatever reason) and then sold the software in it's entirety. The fact that they purchased the software in question specifically for resale tends to negate that argument.

In addition, the first sale doctrine holds for consumers (which Psystar is not), not for unauthorized resellers. Also, just found this on Mac OS X version 10.6 Snow Leopard :

Please note, that only Apple OS X Leopard users are eligible for the Snow Leopard upgrade. Tiger & earlier OS users will need to purchase either versions of the upgraded Mac Box Set.
(emphasis added)
Notice that there is no mention of a base install option.
And, under System Requirements:
Mac computer with an Intel processor
Since even the box set specifies a Mac computer, Psystar loses out on this claim.

If I were to build a system (as Psystar does) for my own use (which Psystar does not), then sell it that would be one thing. There, first sale applies (since I am the original end user). However, since Psystar is not building the system for their use then selling it when no longer needed, their claim of first sale falls flat.

I also would not like to be sitting there when the judge has a discussion with their attorneys about court shopping. It is highly likely that questions would be raised about why they did not file in the jurisdiction they originally chose (other than that Psystar did not like the ruling).

---
And ye shall know the truth, and the truth shall make you free.
John 8:32(King James Version)

[ Reply to This | # ]

Why Open Source loves Apple
Authored by: Anonymous on Saturday, August 29 2009 @ 03:13 AM EDT
One of the reasons open source advocates love Apple, compared to Microsoft, is
that Apple heavily gives back to
the open source community.

Apple has given to the open source community software such as:

1. DARWIN - the core real UNIX operating system that underlies Mac OS X. Just
add X-Windows, and you can fly
with a graphical environment of your own. Or just stay in command line mode to
your heart's content.

2. WebKit - the backbone of Safari, Google Chrome, Midori, Nokia, Epiphany and
other Web Browsers - many
available to Linux.

3. CUPS -the standards-based, open source printing system that is built into
Linux and Mac OS X.

4. etc.

<a
href="http://developer.apple.com/opensource/index.html">http://deve
loper.apple.com/opensource/index.html<
/a> as a list of the hundreds of open source projects that Apple has
contributed to, over a hundred of which are in
Mac OS X.

[ Reply to This | # ]

Psystar files suit against Apple in Florida - What Are They Thinking?
Authored by: jacks4u on Saturday, August 29 2009 @ 03:52 AM EDT
lol! we've seen it all now!

Forum shopping to justify their ill conceived and legally questionable business.


so... I'm not familiar with Apple anything - where is the GPL connection you
spoke of? (I'm not trying to be trollish, or anything, I just want to understand
how Snow Leopard and the GPL can be spoken of in the same sentence, that's all.


Does Apple package GPL software with it's OS? or use GPL code as a base to which
they add proprietary bits? or is there more to it than that?


inquiring minds want to know...

---
I'm not a Lawyer, this is my opinion only. I may be wrong, but I don't think so!

[ Reply to This | # ]

Who would want Apple to get bad press?
Authored by: Anonymous on Saturday, August 29 2009 @ 05:41 AM EDT
"Who would want Apple to get bad press?"

Well, I thought very much of the same issue, but for Nokia, when they announced their new phone, the N900 a few days ago.

They use Linux on the N900, and it is the Debian based Maemo distro running on an ARM-processor. All open api:s make it a charm for anyone to program anything for that cutie.

Some early views:


"The handset is undoubtedly the hottest smartphone of the season, one that poses competition to HTC Hero and I-phone 3GS." (http://www.cellbharat.com/ blog/tag/nokia-n900/)

"From the specs Nokia bestowed on us all yesterday, the Nokia N900 looked almost like it could give the company’s Booklet 3G mini laptop a run for its money, but what’s got us all in a fluster now though is the new OS. Based on Linux, it’s as much a treat for the eyes as that guy’s haircut belongs in the 1970s." (http://www.mirror.co.uk/news/technology/2009/08/28/nokia-n9 00-hands-on-video-115875-21632024/)

"After a few leaks, Nokia released details about its first-ever Linux-based smart phone. The Finnish cellphone maker will formally launch the N900 smart phone in October for about €500 ($713). It features a 3.5-inch touch screen, a slide-out QWERTY keyboard, 32 GB of storage, 1 GB of app memory, and Wi-Fi, among other features that prompted oohs and aahs in the blogosphere.

And unlike Nokia’s other phones that run on the Symbian operating system, the N900’s Linux-based Maemo operating system, which means that the smart phone will operate more like a PC." (h ttp://blogs.wsj.com/digits/2009/08/28/an-early-peek-at-the-nokia-n900/)

However, among these and many other exuberant reviews, and as Wall Street Journal note in their article:

"But some journalists wondered about the wisdom of Nokia’s decision to emphasize both Symbian and Linux. “What I think I want to see is Nokia licensing Palm’s webOS, used on the Pre,” wrote PC World’s David Coursey. “It makes little sense for Nokia to try to turn both Linux and Symbian into high-end players."

Linux not sensible for being "turned into" a high-end player?! Hmmm... I think www.top500.org shows it has that capacity and that Symbian is fairly limited... There are many more anti-Linux stances along the way. But? Who would want Nokia to get bad press, for using Linux on their iPhone GS killer? I can think of both Apple and Microsoft, and probably Psystar too.

Fanboys do their share too, I guess.



_____________
IMANAL_TOO (just didn't login)

[ Reply to This | # ]

Psystar files suit against Apple in Florida - What Are They Thinking?
Authored by: Ian Al on Saturday, August 29 2009 @ 06:07 AM EDT
I'm not so sure that this is not a genuine new legal argument over a different product.
The Psystar computers that run Mac OS X Snow Leopard are able to do so by running software, written by Psystar, that interfaces with the open-source portion of Mac OS X Snow Leopard.
So, they are saying that they are allowing the proprietary software to run, without modification, on their hardware. There are more than one open boot software projects that might be modified to run the (BSD?) underpinnings of Snow Leopard and, even if they replaced Apple's version of BSD components with their own rewritten version of BSD components, the BSD licence specifically permits them to use and modify the BSD code. They are not modifying Apple's copyright code without a licence to do so.

There are two issues that leave me puzzled, however. The first is the resolution of the EULA issue from the first case. What did the California court rule on that issue? Did they say that the EULA prevents Psystar's customers running legally licenced, purchased and supplied copies of Snow Leopard on non-Apple hardware? Did they find that Psystar are not legally allowed to preload said software on the computers? Finally, do they have to use their own installer to skirt the Apple protection and then modify the BSD componentry after installation? Is that a DMCA violation?

The second issue is related to the first. I thought I had learned from PJ that it is not permitted to open new litigation to deal with the same or closely related issues that are being or have been resolved in another court. If you don't raise the issues in the first court case then you lose the chance to litigate the issue against the same entity ever again. The EULA and DMCA issues with Apple software seems to be just such an example of proscribed litigation.

I don't see this as another 'First Sale' doctrine attack on the GPL. It is an example of how the BSD licence can be misused. The GPL is not affected as I see it. If you don't accept the GPL then the code is covered by copyright law. You could rewrite it until no part is covered by copyright law and then do what you want with it. You could rewrite a book until no part of the result was covered by the original copyright, but that is essentially a new book.

I can't guess who might want to continue to mount an attack on Apple or the GPL. Let me start again, I can guess who might want to continue to mount an attack on Apple or the GPL. However, we should be able to detect the indicator of such promotion by the presence of dancing Sugar Plum Pipe Fairies. I see no such sign. Well, perhaps I do. Psystar were claimed to have exited Chapter 11 bankruptcy. Their reason for entering Chapter 11 in the first place seems to suggest that there is new money to tide them over the shortage of paying customers and to hire new lawyers for the Florida litigation. We need those forensically retentive Groklawyans to pore over the MOR's that convinced the bankruptcy judge and their creditors to let them out of Chapter 11. No use asking me. I'm not from around here.

---
Regards
Ian Al

Linux: Viri can't hear you in free space.

[ Reply to This | # ]

Why Apple is in the wrong
Authored by: Anonymous on Saturday, August 29 2009 @ 06:55 AM EDT

Apple is invoking the DMCA. That puts them morally in the wrong from the start.

Not being a lawyer I have no opinion on whether Psystar broke the law or not. If they did, that was very unwise of them, and they will no doubt pay the penalty.

But, folks, let's never confuse the concepts "legal" and "right". A lot of laws are made by politicians following the orders of large corporations, and go directly against what is right. It is prudent to habitually obey the laws because the government will do nasty things to you if you do not; but civilization usually progresses by the sacrifices of those who flout unjust laws. Thoreau, John Brown, Nelson Mandela, not to mention the founding fathers of the United States.

[ Reply to This | # ]

I dont get it (who is trying to destroy GPL and how?)
Authored by: Anonymous on Saturday, August 29 2009 @ 07:44 AM EDT
I have followed the articles on groklaw.

I dont doubt that someone is trying to destroy GPL.
Didn't get it that it was what the coverage was all about.

So who is trying to destroy GPL? (Paystar?)
How are they trying to do it?

[ Reply to This | # ]

  • Who? How? - Authored by: Anonymous on Sunday, August 30 2009 @ 02:31 PM EDT
What Are They Thinking?
Authored by: GuyllFyre on Saturday, August 29 2009 @ 09:44 AM EDT
They're thinking they can do what they please with items they have purchased.
Just as many of the rest of us feel.

We bought it, we can darned well do what we please with it and the company can't
say anything about it.

This is what you're not understanding.

Apple is in the wrong here. Psystar may be a bunch of idiots when it comes down
to it but they certainly are trying to make a point that once something is sold
to someone, that next person is allowed to do what they please with the product
they have purchased.

[ Reply to This | # ]

exploding phones vs. smart phones
Authored by: grouch on Saturday, August 29 2009 @ 11:46 AM EDT

Wouldn't it be weird if some folks were falsely accusing Apple? Who would want Apple to get bad press?

While reading articles about Microsoft's inept attempt to digitally transplant heads, I ran across the following page:

Microsoft photo sparks racism row

It's short and not quite as hilarious as the discussion of the incident on some blogs, but that page has a curious juxtaposition of links to other stories. Following the main article, it says,
"Next Technology story:
"New reports of exploding iPhones"

To the left of that,
"Related Links
"Microsoft asks court to halt Word ban
"Microsoft, Yahoo, Amazon to fight Google book deal
"Microsoft smartens up non-smart phones"

Looks like the gang's all here. You don't have to infiltrate or bribe news outlets around the world; just plant some seeds at a few friendly ones -- your "news" will spread to the others and grow on its own. Sprinkle in some "stealth marketing" (see, for example, spankmymarketer) and a dash of lobbying and you, too, can climb the corporate ladder (if you have a surplus of cash and a deficiency in ethics). Maybe there should be a "how-to" posted somewhere.

---
-- grouch

GNU/Linux obeys you.

[ Reply to This | # ]

Psystar files suit against Apple in Florida - What Are They Thinking?
Authored by: Anonymous on Saturday, August 29 2009 @ 12:39 PM EDT

I'm the same person as the grandparent. Maybe its time I set up an login...

If it was the user's responsibility to install Mac OS X on the hacked box, then I think Apple's issues would be lessened a little. After all, part of the experience of buying a Mac is that the OS is pre-installed. But, I think Psystar would still be liable because they enable infringing behavior vicariously. Psystar's own software exists solely to enable infringing behavior. It's the same argument satellite and cable providers have used to shut down makers of set top box hacking gear. Game console makers have shut down modding manufacturers using that line of argument as well.

As far as your URL goes, see this link Why CLISP is under GPL - an email thread between Richard Stallman and Bruno Haible. The original CLisp license was far less restrictive than your URL. It was BSD or a derivative I believe. Haible had a lot of options but in the end he chose to go GPL. You can argue whether or not RMS was right, but its clear that RMS favors an interpretation that gives his own work more protection and a stronger position. So why not Apple?

-txj

[ Reply to This | # ]

Great - So What About Other Software Publishers?
Authored by: Anonymous on Saturday, August 29 2009 @ 01:36 PM EDT
Psystar intends to purchase every copy of Mac OS X Snow Leopard that it resells with its computers, as has been its practice with prior versions of Mac OS X. It purchases these copies both directly from Apple and through resellers like Amazon and Best Buy.

So what about all the other companies that sell software upgrades, such as Microsoft, AutoCad, Adobe, etc? Does that mean that I can legally buy a "student" version of MS Office and use it for business purposes? Can I buy a media-only copy of MS Windows (typically about $35), install it on any computer, and then resell that computer? That seems to be what PyStar is arguing. The entire shrink-wrap commercial software industry is going to collapse if Pystar wins this case.

What Pystar keeps ignoring is that having a disk is not the same thing as having a license. You get a license for OS/X with your Apple computer just like you get a license for MS Windows with your HP or Dell computer (or at least you do with most of the ones they sell). You can buy upgrades to OS/X just like you can buy upgrades to MS Windows. An upgrade doesn't give you the base license though. The only difference between Apple and Microsoft in this respect is that Apple sells their own hardware instead of relying on third party partners. The legal position for the software upgrades though seems to be identical. The only difference is that Microsoft also sells full-license copies without hardware, while Apple doesn't.

If anyone should be worried about this case, it should be Microsoft. They are in a much worse position to adapt to any legal changes than Apple is and so have more to lose.

[ Reply to This | # ]

GPL attack or not? What do you think?
Authored by: rsteinmetz70112 on Saturday, August 29 2009 @ 01:46 PM EDT
As I understand the law copyright gives the owner of the copyright certain exclusive rights. Here are the ones that seem most relevant;
§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

§ 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

(a) Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord

§ 117. Limitations on exclusive rights:

(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner,

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
The GPL does not govern use and controlling use of computer programs is not part of the exclusive rights granted by copyright, as far as I can tell. Copyright law specifically exempts making a copy for the purpose of utilizing computer programs.

EULA's purport to control use of a particular copy of a computer program, something copyright law does not address. The GPL on the other hand operates entirely within copyright law primarily by granting permission to make copies and controlling how derivative works may be made and distributed. It makes no attempt to control use. The GPL grants permission to others the author is specifically given by copyright law. An EULA purports to require conditions not recognized in copyright law.

Many people believe that current EULA's are an abuse of copyright attempting to extend the reach of copyright well beyond the limits allowed by law under the legal theory that a one sided contract can supersede copyright law and establish rights that the author may not otherwise have.

While Pystar may not be the most virtuous client the issue applies to other egregious EULA's by many companies, especially Microsoft.

This is at least how I understand it and would like see what others think. I don't believe limiting expansive EULA's would invalidate or even affect the GPL.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

And you believe them?
Authored by: Anonymous on Saturday, August 29 2009 @ 04:48 PM EDT
"By the way, Bloomberg is reporting that Apple says iPhones with shattered
screens "showed outside pressure caused the cracking", not batteries
overheading:

“In all cases the glass cracked due to an external force that was applied to
the iPhone,” Alan Hely, a London-based spokesman for Apple Europe, said in an
e-mail. “There are no confirmed battery overheating incidents for iPhone 3GS and
the number of reports we are investigating is in the single digits.”"

I suppose all the people who "claim" the new iPhones get *very hot*
are really paid by Microsoft to damage Apple's reputation.

Get a grip.

[ Reply to This | # ]

Psystar files suit against Apple in Florida - What Are They Thinking?
Authored by: Anonymous on Saturday, August 29 2009 @ 05:16 PM EDT
How is this different from when MSFT threatened Win 95 OEM licensing to IBM if
they shipped OS/2? Though even in that case MSFT told IBM they'd have to get 95
retail, which is largely what Pystar does.

[ Reply to This | # ]

Does Apple even NEED the EULA to win?
Authored by: Anonymous on Saturday, August 29 2009 @ 06:12 PM EDT

I'm not certain that it does.

Apple's lines of attack seem to be that a) the EULA forbids Pystar's conduct, b)
Pystar "makes copies" which are unauthorized and therefore illegal in
their R&D department; and c) the DMCA's anti-circumvention provisions come
into play here, which forbid the stuff Pystar is doing regardless of whether or
not Pystar can otherwise legally re-distribute a legal-but-modified instance of
Mac OS X.

Pystar disputes a) on the grounds that even though the EULA purports to restrain
their conduct; the EULA is invalid for various reasons (contrary to state law,
first sale, etc). Pystar disputes b) based on the grounds that the copies are
"incidental" under the law, and c) that the DCMA shouldn't apply
because Pystar's conduct is otherwise lawful, according to them.

I'm actually somewhat sympathetic to all three positions from a generic public
policy point-of-view--many EULAs bother the hell out of me--and I rather dislike
the notion that I need a "license" to run something that I've bought
and paid for--especially since the asserted grounds for a license being
necessary is an act incidental to the purchase but technically necessary to use
a program. And I despise the DCMA.

However, I think the argument that might sink Pystar is: Does the First Sale
Doctrine give Pystar a right to MODIFY a copyrighted work and sell that--even if
for every modified work sold, an original work is purchased and destroyed?
Could I write and sell my magnum opus, "Harry Potter and the Half-Dressed
Princess", if for every copy I had sold, I had purchased a legit copy of
some Harry Potter work, from which I had cribbed much of the prose?

I think not.

Given the facts of the case--Pystar sells computers with OS X pre-installed--it
is NOT distributing the same copy of Mac OS X that it bought; it's distributing
a derived work in its stead.

Which I don't believe the First Sale doctrine permits.

Now--here's a question though: If Pystar distributed computers which contained
no Apple code, but with modified software/firmware which somehow managed to
"patch" Mac OS X on install to disable the TPM authentication, and
then either shipped a legally-purchased-and-unaltered Mac OS disc (or told you
to go get your own)--would this be legal?

[ Reply to This | # ]

I am for Psystar and an Apple user
Authored by: Anonymous on Saturday, August 29 2009 @ 06:49 PM EDT
Go Pystar Go!

If the OSX boxed set I buy in the Apple store is really a software license, why
do they not say so directly.

If SnowLeopard features are only supported in certain version of Apple products,
why don't they explain clearly in the same page where the new features are
explained.

It a fact the knowledgeable people in the software industry upgraded thinking
Exchange (i.e. Microsoft mail etc.)would be supported only to find the iPhone
Exchange support exceeds that of Snow Leopard.

I don't feel sorry for Apple one bit is they try to mislead me at every twist
and turn about what I am getting with their software. The EULA is just part of
that.

[ Reply to This | # ]

What if First Sale doctrine applied to individual copies of software products?
Authored by: Anonymous on Saturday, August 29 2009 @ 07:20 PM EDT
Would it be so bad if all "software licenses" for
single-simultaneous-user software were thrown out and a "license"
became simply "you bought a copy, you can do anything you want to with it
short of copying it or letting more than one person at a time use it."
Yes, this would destroy the GPL with respect to single-copy purchased goods and
goods given away with the consent of the copyright owners, but only for that
particular copy. In other words, I could take GPL code, make non-GPL-compliant
copies to it, and give or sell that copy to whomever I wanted without
encumberance. I could also publish pure diffs, providing the diffs only
included my code and not the GPL code.

Obviously, this would be impractical for multi-user software, such as most
servers, and it would be impractical for audio and video software meant to be
used by more than one person at a time.

But still, would it be such a bad thing if "you bought a copy, it's yours
to do with as you wish, as a single copy" was the rule we all lived by?

[ Reply to This | # ]

In Psystar's defense ...
Authored by: kawabago on Saturday, August 29 2009 @ 08:35 PM EDT
In Psystar's defense, why should an author be allowed to dictate where you can
read her book? That is in effect what Apple does with it's terms of use. Doesn't
that go against the doctrine of first sale? The vendor can't reach out and
control something after it's been sold, isn't that the way it's supposed to be?
Once you buy software you should be able to use it anywhere you want just like
you can read a book anywhere you want, unless you own a Kindle.

[ Reply to This | # ]

Apple should just jack up the price
Authored by: Anonymous on Saturday, August 29 2009 @ 09:11 PM EDT
They should vary the price based on how long it's been since your last current
paid-for version or upgrade was:

*No previous version: $500 or more
*Previous version less than 1 major version ago, e.g. 10.5.0 to 10.5.x - no
charge
*Previous version only 1 major version ago: Varies depending on value-add of
this version. For 10.5 to 10.6 they should charge for the value-add from
10.5.latest to 10.6.0.
*Previous version more than 1 major version ago: Varies depending on cumulative
value-add from last paid-for version or upgrade, including free updates.

Examples of how this might have worked if they had done it in the past:

10.0: $500
10.0, from 9: $129
10.0, from 8: $129
10.0, from 7.6: $129 [versions prior to 7.6 were free]

10.1: $500
10.1, from 10.0: $29
10.1, from 7.6-9.x: $158

...

10.5 (Intel or PPC or universal): $500
10.5, from 10.4 (PPC only, from PPC): $29
10.5, from 10.4 (Intel only, from Intel): $29
10.5, from 10.3 (PPC only, from PPC): $58
10.5, from 10.3 (Intel only, from Intel): N/A, 10.3 didn't run on Intel
10.5, from 10.2 (PPC only, from PPC): $87
10.5, from 10.1 (PPC only, from PPC): $116
10.5, from 10.0 (PPC only, from PPC): $145
10.5, from 7.6-9.x (PPC only, from PPC): $276

10.6 would be:
New (Intel only): $500
From 10.5 (from Intel): $29
From 10.5 PPC: N/A
From 10.4 (from Intel): $58
From 10.4 (from PPC): N/A
From 10.3 and earlier (from Intel): N/A, they didn't run Intel
From 10.3 and earlier (from PPC): N/A

Under this pricing model, Apple could have welcomed clones, and could have even
"regulated" them by offering OEM pricing for clone software at $400 or
less if the clonemaker was "authorized."

By the way, since new Macs ship with an OS, it would be pretty easy to set the
OS price as the price of a Mac minus the price of nearly equivalent hardware
from another quality vendor without an OS, minus the hardware markup for Apple's
hardware warranty and brand value.

[ Reply to This | # ]

CAN'T vs DOESN'T SUPPORT
Authored by: DodgeRules on Saturday, August 29 2009 @ 09:21 PM EDT
And it's put out a press release about its latest offering, which hilariously ends by saying you can't install XP
Well, it doesn't QUITE say that. It says:
*DUBL currently does not support the installation of XP.
So it doesn't say you CAN'T, just that is does not support the installation of XP.

[ Reply to This | # ]

Is DUBL Actually ASEM EFI-X?
Authored by: Anonymous on Sunday, August 30 2009 @ 12:40 AM EDT

The DUBL, now being offered in new computers shipping from Psystar, allows for the installation of additional hard drives, each with its own operating system*. The Darwin Universal Boot Loader can identify new hard drives attached to the computer and allows for the user to easily install a different operating system on it.

(...)

*DUBL currently does not support the installation of XP.

The Register has a recent story called How to run Mac OS X on a generic PC.

However, for the less stout of heart there's a much simpler alternative. But it's not free, or even cheap. I fell into it at the end of last year when an outfit called Art Studios Entertainment Media (ASEM) sent me a small black square object in an elegant magnet-latched cardboard case about the size of a packet of ten cigarettes. The object itself isn't much bigger than a large postage stamp, and is designed to plug into a USB header on a generic Intel motherboard.

ASEM calls it EFI-X - or EFiX; they don't seem to have made up their minds about this - as it's an eXtension of Intel's Extensible Firmware Interface. The ASEM extension includes everything the Intel hardware needs to assure a Mac OS X installation or update that it's dealing with a kosher Macintosh.

One of the features of EFI-X is that it gives you a boot menu which allows you to select different operating systems from different drives. That sounds a lot like what Pystar is now offering. On the other hand, the web site for EFI-X says that (unlike DUBL), EFI-X does support MS Windows XP. However it is possible that the hardware which Pystar is using has problems with MS XP, so that doesn't rule out the possibility that they are using EFI-X.

For those who aren't familiar with EFI, it is Intel's replacement for the traditional BIOS. Apple uses it for their computers. EFI hasn't replaced traditional BIOS on most hardware yet because MS Windows XP can't boot using it. EFI motherboards are starting to appear now though, because MS Windows Vista can use EFI.

I wouldn't recommend EFI-X to anyone by the way. Besides the whole questionable legality behind it, it sounds a bit flaky. You could sink a lot of money into a computer, software, and this gadget, and then have the whole thing fall down when Apple sends out a normal software updated that isn't compatible with it. The price for this thing is about £170 (plus add OS/X, and the cost of a compatible computer), so it's a bit expensive just for something to play around with. If you really want a Mac, then buy a Mac. If you think a Mac is too expensive and you want to get some serious work done, then get Ubuntu.

[ Reply to This | # ]

Bottom Line Question
Authored by: proceng on Sunday, August 30 2009 @ 06:08 PM EDT
Posted here since multiple threads keep returning to it

Who provides support for OS/X? Psystar is apparently hoping that, if you have an issue that appears to be software related, you will call Apple rather than them. The reasons for my assertion are:

  • The capitalization of the company
  • Psystar's stated inability to create a clone of OS/X
  • Psystar's lack of sales and/or other records (how would they be able to manage in-warranty software support)
  • Psystar's lack of technical expertise (maintaining multiple revisions of their modifications without any revision control system
Given all of these, it is apparent (at least to me) that the company's desire was to sell "white box" machines at a premium without the expense of maintaining a proper support structure. Hard disk failure - ship the customer a replacement drive. Software failure - call Apple.

---
And ye shall know the truth, and the truth shall make you free.
John 8:32(King James Version)

[ Reply to This | # ]

Psystar files suit against Apple in Florida - What Are They Thinking? - Updated
Authored by: Anonymous on Monday, August 31 2009 @ 06:24 AM EDT
Minor detail. Snow Leopard has not been released yet, so Psystar does not have
a product to "sell". If Snow Leopard is only an update, then they
will need to buy both Leopard and Snow Leopard. Should prove interesting how
they will handle that. They would then have to buy a bunch of old Leopards.
It will be interesting how they argue that one.

[ Reply to This | # ]

"comparable"
Authored by: shingebis on Tuesday, September 01 2009 @ 03:09 PM EDT
Psystar computers outperform comparable Macintoshes sold by Apple
And my cat is bigger than a comparable horse.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )