Psystar hires attorneys who've faced Apple before - Page 2

well if you go by the eula all you have to do is stick an apple logo on the case right?

That would "Label" the machine apple.

I guess we'll just have to wait for the courts then. However, i am confident that a contract, such as a licensing agreement, will hold as with any other contract unless they can prove Apple misrepresented itself, or the conditions unfairly.



If it were market share Apple wanted, Apple would do just that, as they did before with allowing clones. When they did have clones, they were horrible and gave Apple a bad name. They did not help to further Apple's penetration. What they want is control over the process and materials so that an experience is achieved equally. Something M$ can't do. But M$ does not want quality, they want market share. Apple wants beautiful, and extremely well made products, not mass market share. Look at all the problems M$ has! Do you think Apple wants that? When are you M$ lovers going to realize that is is NOT always JUST about money. Some people want to create, for the sake of creating. Not that Apple is hurting for money. Don't they have a larger market cap then Dell and HP?

This is all futile as i would speculate Apple would solve this with hardware. Actually, i would not even sell retail versions, but only allow online purchases for upgrades. Many end users will be upset, but the simple explanation of Pirating will justify this course of action. Therefore the OS can only be sold with new machines and through the online store.

Speaking of which. I thought the boxed OSes were upgrades only? How are they using an upgrade OS to install fresh?

Why should we care if Apple will get a larger customer base if it opens up OS X to other computers. As Mac users the only thing we should be concerned about are :

1) We can get Macs
2) We can get continued development on Macs

As long as Apple is healthy those 2 points should be satisfied. Why should we care if 100 million additional other people use Macs. Its not like their using it or not affects me in any way shape or form.

Basically what it comes down to is people wanting to get a Mac but are unwilling (not unable) to pay Apple's asking price, so they turn to hackintoshes justifying it with Apple not giving them choices. You do have a choice. The choice to not buy.

I'm an attorney. There is little chance Pystar will win this thing nor should it. Apple has more then one cause of action including copyright, licensing, and trademark. It only needs to win on one issue, and it has strong arguments on all three. Moreover, Apple filed the case on it's own turf.

People like to compare Apple to Microsoft, but Apple is a hardware company whereas Microsoft is a software company. People who study Apple's business model understand that the software is a loss leader for Apple that it uses to sell the hardware. If Apple were forced to open up it's hardware to other vendors it would in effect be forcing Apple to be a software company. Apple would have to adjust it's software pricing like Microsoft does for full installations as opposed to upgrades. Currently, all of Apple software is essentially an upgrade and is priced as such.

Forcing a business model on Apple is anti-free market. Consumers have the choice of choosing to buy Apple products while being fully informed of the business model. Moreover, Apple is not going against individuals who wish to install it's OS on PC hardware. For good reason. That's probably fair-use. Instead, it is challenging a for profit company wishing to violate it's copyrights to change Apple's selected business model. It should lose.

I don't think it is fair to suggest these lawyers won the last time against Apple. First, Burst had some legitimate patent claims, much like Apple this time around has valid copyright, licensing, and trademark claims. If you do a Google search, you will see that many insiders thought Apple might have to settle the matter for over a hundred million dollars, much like it had to do with Creative. Microsoft, paid 60 million, and it's infringing use was arguably less. Had Apple taken the matter to court, it would have probably paid close to 10 million dollars. When news of this settlement came out, most news sources (including probably this one) were surprised by the low number related to the settlement. So if anything, Apple's lawyers probably got the better end of that deal.

Excellent point! I had forgotten that the settlement was surprisingly low.

What Pystar is doing is anti-free market. Apple should have the right to select a business model that it wants. Currently, consumers have the right to not support this as a business model by choosing not to buy Apple products. Much like I do when I choose not to buy Microsoft products. Fact is, Pystar is cheating Apple out of money buy stealing Leopard, which is priced as upgrade software, and using it as full install software. Moreover, when people get pissed off by the low quality experience of the hardware, who do you think they are going to blame, Apple or Pystar? If enough people say Apple, this is clearly a trademark violation.

Why should Apple care what you want? Why should they care that you want them to have huge market share when they don't??

You would be hard pressed to show me any company that remained healthy while letting competitors misuse their products.

Why are you so obsessed with Apple gaining huge market share? Are you not happy with having great products that you somehow believe you will have better products through cloning? Since when has the knockoffs been better than the original? They aren't as they sacrifice and cut corners to gain market share. Apple does not, so we get high quality products each and every time.

It was exactly Apple back when cloning was allowed. Software is always to blame by the general consumer. What they know is what they see. They see the software. I'm sure Pystar is not pushing that they are selling Pystar computers but Mac clones or computers with Mac OSX. So the attention is therefore put onto the OS, and the OS will subsequently be blamed for any issues.

There has to be huge ground that Apple will stand on for Pystar selling upgrade software as a full install. That alone should be enough.


They also have a restore CD, so they are then illegally distributing the OS as well?

We have two PCs in my home. Once is a Falcon NW running Windows XP Home and the other is a hand-built system that I put together with all name-brand parts for my wife. Neither of them have "boogers" on them either.

You are a prime example of why so many folks see Apple users as snobs. I have been using Apple computers since my first Apple IIe and it is an embarrassment to see folks like you representing the average Mac user.

Jeez...

How about avoiding the vulgarity and personal attacks.

I concur. †MiMiC has good points, but they are easily missed when he takes get personal.

Yes and Apple also support open source and stardards. For example with webkit. So stop this no sense and let Psystar die, they deserve it.

I still think this will be settled out of court with the end result either being Apple paying Psystar to stop, or just buying Psystar outright.

I don't think anyone disagrees that OS market share would go up if they did that.

The big problem is that while OS sales would probably go up, hardware sales would likely drop, potentially decreasing income/profits overall.

Not to mention that if Apple had a release that would run on any PC, piracy of it would likely be extremely rampant.

Market share isn't everything, and it's secondary to profitability.


That's probably true if you're talking about an end user buying the software and violating the EULA - even if it violates the contract, it's hard to enforce.

But this isn't a case where an individual is buying - this is another company modifying and redistributing/reselling Apple's intellectual property without permission. The EULA strengthens apple's case, but they probably could win without even mentioning it at all.

Ho Ho Ho

And if they WIN...Apple software will be running on more defective Computers than VISTA.

Not sure if an Apple win would be good either though

itpc://www.bageltech.net/BagelTech/Podcast/rss.xml

Having a right DENIED to you to do what you please with a inanimate object you purchased - i.e., exchanged currency of the land for said product - is protectionism. No one is claiming Apple must support anything, your argument is illogical.

Apple isn't goign after those who are building home grown OS X machines or the websites devoted to figuring it out, they are going after a company who are selling their illegally had, hacked and distributed IP.

For an attorney, you're making a whole lot of hasty generalizations and jumping to conclusions.

No one is demanding that Apple "open up it's hardware." Pystar certainly doesn't "force" Apple to do so, nor has anyone else. You've drawn an inaccurate conclusion - something not even a point of contention between the parties - that has no bearing on this case.

Furthermore, a business model is not law nor legal, and has no rights in itself. No one gives a damn what Apple's business model is or why it should be important to the court. Having a business model provides no legal protection whatsoever.

Above, several people have made the confusing claim that simply because Apple writes in their EULA that up is down and red is green, that makes it so. This is as far from the truth - or legal precedent - that one can get.

You mention copyright on several occasions and we're not convinced this case is about copyrights at all. Pystar is not altering code, source or otherwise, they haven't appropriated any code, lifted code snippets or fragments for use elsewhere, damaged code, misappropriated code or finished software product, nor are they even selling OS X for profit. They've paid for their product. It is quite unclear legally why Apple is complaining, other than whining about being forced to compete in an open market, and their economic fear of losing potentially illegal control.

Please explain to me how Pystar has hacked Apple's product - actual OS X code.

Also, once again, no one is asking Apple to support anything.

Psystar is using code hacked by someone else, DLed from the internet without Apple's approval and installed on each and each and every OS X machine they are selling. The disc they ship with the device can't be used in their Mac clone in any regard. It's there as a placeholder in a vain attempt to shield them from legal action. Do you really think these garage-dwelling PC builders have really found away to get their off the shelf parts to read an EFI Mac to a proper OS X disc?

Now it's clear that you are purposely being obtuse.

Again, how exactly has Pystar altered / hacked OS X code? I understand how they're using existing Open Source code to deploy the OS on standard Intel motherboards but I still do not see how they've modified OS X itself.

Once you buy an OS X disk, you should be able to do with it what you like, whether that's hurling it off a bridge like a silvery frisbee, or loading it onto an Intel motherboard - as long as you're not profiting from it.

Pystar claims that Leopard can be installed for free (it's an option). Therefore, their stated goal is to sell their equipment with a variety of OSes (not just OS X) but the Leopard option is profitless for them - base system = $399 without Leopard installed & $399 with Leopard installed. Therefore, they are not violating US copyright law.

Do not misunderstand me, I do not agree ethically with what Pystar is doing; however, it seems to me that they have a legal right to do it. Anyway, that's why we have courts!

No, sir, I'm trying to get you to be specific. The facts will matter to the court. I cannot discern how Pystar has altered OS X at all. The facts do not appear to support a claim that OS X itself has been modified in any way or form. If you believe it has been, as you claim above, please share how with me, I would sincerely like to understand. Thanks!

Just because OSxProject doesn't close their work doesn't mean the hacked copy of OS X they are using is now a free for all. Psystar is selling machines with OS X code that violates the copyright of Apple's OS as it's begotten from hackers of the OSxProject. You can't knowingly sell a stolen TV, even if you weren't the one who originally stole it and expect not to be culpable.


But that is what they are doing. The savvy coders of the OSxProject are none to happy with Psystar either for using their altered OS X code and accompanying drivers without permission.


The cheapest I see on see on their website is $555. Before the lawsuit they were offering a $400 machine and the Leopard install was optional and came at a charge slightly above the Mac OS X upgrade disc price. It looks like they have also removed most of the stolen, GPL violating drivers and other code from their support site; probably recommended by their new lawyers.


If they have a legal right to use unlicensed code that has been illegally hacked and sold in violation of copyrights then why aren't the big PC sellers doing it and have been doing it? Why didn't any of the official Mac cloners that Jobs disbanded start making unofficial Mac clones? Do you really think this was overlooked by everyone who have been trying to get OS X on their machines and trying to get out from under Windows? Is it really likely these guys in Miami are really that clever? If there ever were a time to invoke Occam's razor it's now.

Are you daft? Others have replied several time that it is not Pystar that hacked the code, but independent hackers.

Specifically the TPM for the kernal/hardware interface is hacked. The TPM component is not part of the OS Darwin project, it is part of apple's proprietary OS X which sits on top of Darwin. To run OS X (not Darwin) on non-Apple manufactured hardware you must have hacked TPM components. Just because Pystar didn't hack the TPM themselves doesn't make it legal for Pystar to sell it.

Again, they aren't selling it. You can get a base model for $399 with Leopard and a base model for $399 without Leopard. You can get an upgraded unit for $599 without Leopard and the same upgraded unit for $599 with Leopard.

This is open source code they've been distributing sans profit. As far as I know, there is no law against that. They have not made any modifications to Apple's proprietary code, which would obviously be illegal.

Try to think in terms of the legality of the situation, and what would be admissible in a court of law and what is immaterial, rather than your emotional response to what you obviously believe to be some sort of evil doing.

http://docs.justia.com/cases/federal...204881/1/0.pdf

If you read this, you're sure that Psystar will loose

MAI v Peak
MDY v Blizzard
Wall Data v LA County Sheriff Dept
Blizzard v BNetD

A few of the important cases regarding EULA and copyright. The 7th, 8th and 9th Circuit has granted software copyright holders immense rights above what that of other copyright holders and removed many rights granted due to their interpretation of license vs ownership (7th and 8th). Until SCOTUS rules these are the precedents that hold.

Read before you call others clueless and you won't seem like an ass next time.

It's not open source.

Profit or sales is a not a requirement of copyright infringement or violation of contract law.


YANAL (You Are Not A Lawyer).

Installing Leopard on a non Apple Darwin layer most definitely IS "hacking" Apples proprietary OS. Just because Apple makes the Darwin layer available separately as Open Source software does not make the OS portion of the OS X install DVD the least bit open source. Since Apple is the copyright holder for Darwin they get to choose when it is treated as OSS and when it is treated as proprietary. Even GNU agrees with that as a copyright holders right, it's in every version of the GPL.

So it is hacking and not legal to do a file-for-file substitution in the corresponding layers when you are going to sell the result. Apple sells Leopard as an entire cohesive package and the only way to "legally" use it is a straight up DVD install with zero modifications.

It's not even reasonable to say Pystar is selling the box, but not he OS. They are specifically marketing the box and OS together, so playing games with pricing is transparent to the question of whether they are "selling the OS or giving it away". That "bundeling" issue has been rung out repeatedly in case law. The precedent on that point says EPIC FAIL.

You're joking, right?

Facts mean nothing. Denny Crane.

{{{Sigh}}}

My fault, I'm just not getting through here.

I know for a fact that Apple appreciates all the support from so many here in this forum, and I mean that sincerely. Heck, I appreciate and like to see it, too. But that still doesn't get to the legality of what Apple's up to, which is what Pystar will challenge in court.

There are very few things that must be changed to allow OS X to run on x86 hardware. Starting with the EFI layer so that the kernel can make EFI calls to a system that otherwise only responds to BIOS calls is one of them, and that's not hacking in any way.

Second, a kext must be loaded to decrypt protected binaries (that would be an Apple provided arbitrary restriction). Protected binaries include the Finder, and Dock and some others.

The only reason for encrypted binaries is to prevent the OS from running on non-Mac hardware. Only macs have the SMC chip (system management controller), and only Macs have a specific encryption key in that chip.

There is a kernel extension that reads out that key and uses it to decrypt specific binaries.

Some would consider this exclusionary and illegal. It does in effect meet the definition of tying in anti-trust, and we shall see what the courts have to say.

Yes that's all fine and dandy but this case is not about copyright or about EULA. It's about exclusionary tying and anti-trust. Let's discuss the merits of the case, rather than a history of other cases which will have no bearing here.

We could just cut to the chase, and lay some long green on it. What are you comfortable with, 4 figure$?

Hey I like the way you think!

I think Pystar will be wagering much more than that here - there will be tens of millions at stake initially and probably more down the road. I would like to remind Apple boosters of the dangers of over-confidence, depending upon how this case is framed, presented and interpreted, a whole lot of things could change! That's why I said it will be interesting to see how things play out in the courtroom. It's just too early to tell with any confidence how things will mature, and anyone who believes otherwise is blowing smoke.

I'd be more comfortable wagering a few brewskis, however!

My brother is a member of the Patent Bar (VA) and has just left his job as an examiner to go to law school. I'd like to run this by him, but...

In my view, Psystar will lose on all three counts.. There is a clear case of trademark and copyright infringement here. I think the licensing part is a bit weaker, assuming that Psystar is installing legit copies of OS X on their machines. If they have a defense, this is it. Morally speaking, they have an argument when they make analogies about putting a certain oil/gas in a certain brand car, etc (or whatever they said previously). In other words, I think that Apple could lose on this count. It's always struck me as odd that Apple thinks it can prevent legally purchased copies of their software from being run on other machines. Obviously precedent will weigh in heavily here, however. A ruling against Apple on this count would seemingly end EULAs as we know them...for everyone.

As for trademark and copyright, Psystar is screwed. They're making reference to Mac OS X and "Leopard" to help sell their machines. They show a screenshot on their home page. They are competing with Apple directly as well:

The problem is that you are seeing this through rose colored glasses and outlining the battle in the way you would like to see it go. Apple will not fight this in a way so that you will win. They will fight it in such a way so that they will win. That is why Apple started with the copyright infringement. Psystar did distribute Apple software and are very vulnerable. And for those of you who say that Psystar was just reselling an off the self copy of Leopard, i think it is very telling that Apple waited until Psystar redistributed an OS update. A product that is not on the retail shelves.

Psystar will go after the EULA where Apple is weakest. But this is not a clear cut winner for Psystar and the courts could say that the EULA exclusivity clause is a valid, legal clause.

The method you espoused was not the one that Psystar chose, so is invalid as an argument in this case. However it appears to be the way that OpenTech has chosen to follow. Time will tell if this is a good method or if Apple could have a case against OpenTech for interfering with the contract between Apple and its customers.

I haven't outlined any specific way, all I've noted was that we'll see what happens when it gets into a courtroom. I've written this phrase a half a dozen times. As far as I can tell, my "rose colored glasses" are not in play here (nor do I own a pair, mine are very dark green, polarized for trout stream flyfishing).

Perhaps you're imagining that because I'm not fawning, gushing and throwing myself all over Apple, I must be rooting for Pystar, and this is simply not true. I earlier wrote that personally, I thought what Pystar was doing was unethical.

However, wading through your personal attacks to search through & distill the rest of your post delivers a few good points, one put eloquently. These probably would have been much more dramatic if you had abandoned the attack on me, and just stuck to the case.

The courts could also say that Apple's EULA is illegal and therefore, invalid. Again, just because a EULA says that up is down does not make it so.

It's not my place to determine whether Apple is doing something illegal or Pystar is doing something illegal. That's why we have courts; I've noted this time and again.

It cracks me up to read posts where people have made a pre-determination as to the outcome of the case before it ever enters a courtroom. 'I have a neighbor who knows a lawyer and...'; 'I'm a lawyer, and....'; 'I may not be a lawyer but I play one on TV...' Judge and jury, all on a keyboard! It's really hilarious and truly great entertainment value.

Again, I think there's a chance that Apple may be putting themselves at risk by marching this into court. This may have been solved in other ways, through direct dialogue & negotiation instead of through litigation. But we're such a litigious society, aren't we? And Apple has for years paraded out an army of attorneys to attack anyone who challenges their little piece of turf (whether it be a tiny company or an on line journalist). So, Pystar will file a counter suit.

There are a number of legal experts who consider the locking of OS X to specific hardware strategy that Apple deploys to be a tying of one product to another in blatant violation of Federal anti-trust statutes. They may have a strong point; again, it will need to be determined and resolved in court.

My experience tells me that such a remarkably high powered law firm would not have taken this case on - considering the short pockets of Pystar & the deep, billion dollar pockets of Apple - if they didn't think an anti-trust tying lawsuit might have a $500 to $750 million dollar chance at success. A big time PR campaign pitting David vs Goliath will be a big part of this court case.

It will be interesting to watch this case mature and work it's way through the legal system. Apple will not be able to stifle the news emanating out of the courtroom, as they like to do with most of their super, top secret sauces & projects. This has the potential to give them a very public, world-stage black eye that could impact iPhone, iPod and iTunes marketability. I truly hope it doesn't come to that but I can envision such a disaster happening with a few missteps here and there.

Do I perceive a certain outcome? No, of course not. There are too many variables ahead. Even for copyright infringement. Anyone who claims that this or that will definitely happen in a court of law is a fool and not to be trusted.

Do I want a certain outcome? I want justice to prevail. Don't you?