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Apple files motion for dismissal of Psystar counterclaims

post #1 of 87
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Apple has filed a motion with U.S. District Court seeking to dismiss the claims of Psystar, which allege that Apple has used a monopoly position as the manufacturer of Mac computers to cause restraint of trade, unfair competition, and other violations of antitrust law.

After Apple sued Psystar for selling generic PCs bundled with the company's Mac OS X operating system, Apple was countersued by Psystar over claims that the company had monopolized sales of the Mac.

A month ago, in a press conference held at its Palo Alto, California office, Colby Springer of Carr & Ferrell LLP, the law firm representing Psystar, stated, Were alleging restraint of trade, among other things. Were going to let the court decide.

Apple has fired back with a 23 page filing [PDF by way of ZDNet] that asks the court to dismiss Psystar's countersuit "with prejudice," which means that Psystar as the plaintiff would be barred from bringing another action on the same claim.

Apple's Dismissal Case

"Defendant Psystar Corporation is knowingly infringing Apples copyrights and trademarks, and inducing others to do the same," Apple stated in the filing. "Psystar makes and sells personal computers that use, without permission, Apples proprietary operating system software. In an obvious attempt to divert attention from its unlawful actions, Psystar asserts deeply flawed antitrust counterclaims designed to have this Court force Apple to license its software to Psystar, a direct competitor. The Court should reject Psystars efforts to excuse its copyright infringement, and dismiss these Counterclaims with prejudice."

Apple's filing states that "Psystars very business model is premised on the fact that Apples computers compete directly with personal computers using different operating systems. In its Counterclaims Psystar admits computers with the Macintosh operating system (Mac OS) are one of many types Psystar sells to consumers," citing a number of different versions of Windows and Linux as examples. "Customers are choosing between these computer systems, the systems necessarily compete with one another. For these reasons and others, Psystars effort to assert antitrust claims premised on the existence of a relevant product market restricted solely to Apples products fails as a matter of law."

"Moreover," Apple charges, "the ultimate goal of Psystars Counterclaims is an order from this Court compelling Apple to help competitors, like Psystar, by forcing Apple to license its proprietary software to those competitors for use on their own computer hardware. Psystars effort is contrary to law and must be rejected. Neither the federal nor the state antitrust laws require competitors to stop competing with, and instead to start helping, each other."

"No such thing as a Mac OS market"

"As shown below," Apple noted in its filing, "Psystars single-brand relevant market definitions are irremediably flawed. Psystars own allegations establish that there is no such relevant market as the 'Mac OS market.' Those allegations also show there is no such thing as a Mac OS Capable Computer Systems market. Consequently, there is no basis for Psystar to claim Apple has market power in any market. As a result, all of Psystars claims collapse, since 'failure to identify a[n economically-meaningful] relevant [product] market is a proper ground for dismissing a Sherman Act claim.'"

"Psystars effort to define a single-brand relevant market contravenes well-known principles of antitrust law," the filing notes. "Relevant markets generally cannot be limited to a single manufacturers products. As the Supreme Court recognized in the United States v. E.I. DuPont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994 (1956), the power that, let us say, automobile or soft-drink manufacturers have over their trademarked products is not the power that makes an illegal monopoly. Illegal power must be appraised in terms of the competitive market for the product.'"

"Most recently, in Spahr, supra, the court rejected almost identical allegations as those made here," Apple stated in the filing, citing an example where the plaintiff "claimed that Leegins brand of womens accessories, called the 'Brighton' brand, was a separate market because the products are unique, they are marketed as 'one of a kind,' customers would not consider other accessories as 'suitable substitutes,' and there was an 'inelasticity of demand' for these products. 2008 WL 3914461, at pp. 3, 8. Applying the Supreme Courts decision in Twombly, the District Court dismissed the complaint without leave to amend because its definition of the relevant market was implausible 'from the face of the complaint.' Id., at 8."

"The right of a manufacturer to exercise independent discretion with whom he will deal"

"Ultimately," Apple's filing states, "Psystar seeks to force Apple to license its software to competitors, like Psystar, so they can use Mac OS to create Mac 'clones.' Psystar undeniably can sell, and is selling, its Open Computers running Windows or Linux in direct competition with Apples Mac. Nevertheless, it also wants to sell computers running Apples Mac OS in direct competition with Apples Mac. However, one of the bedrock principles of antitrust law is that a manufacturers unilateral decision concerning how to distribute its product and with whom it will deal cannot violate the Sherman Act:"

The Sherman Act "does not restrict the long recognized right of a trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell."

James Gilliland Jr., serving as Apple's legal representative in filing the motion for dismissal, concluded, "Psystars attempt to direct attention from its infringing conduct should fail. It cannot plausibly define a relevant market in which Apple has market power, so Psystar cannot prove any unfair competition by Apple. Nor can Psystar use the antitrust laws to force Apple to help its direct competitor. Therefore, Psystars Counterclaims all should be dismissed with prejudice."

Comparison to previous monopoly claims

Ten years ago, Apple assisted the US Department of Justice in pursuing a claim against Microsoft, which argued that Microsoft had monopolized the market for PC desktop operating systems. The claim in that case was that there were no 'suitable alternatives' for the vast majority of desktop PC users because software incompatibility effectively prevented users from choosing between Windows and other competing operating systems. In Microsoft's case, the software being sold not only lacked any suitable competition, but was also bundled with more than 95% of the PCs sold, with none of the major PC manufacturers able or willing to offer any alternatives.

The judge ruling in that case wrote in 2000 'conclusions of law' that Microsoft had committed monopolization, attempted monopolization, and tying in violation of Sections 1 and 2 of the Sherman Act, and his remedy was that Microsoft must be broken into two separate units, one to produce the operating system, and one to produce other software components.

While the conclusions of law were never challenged, the original remedy was later watered down to a settlement that only required that Microsoft share its application programming interfaces with third-party companies and appoint a panel of three people who will have full access to Microsoft's systems, records, and source code for five years in order to ensure compliance. Objections from the nine states involved with the DoJ were thrown out, while the consent decree for oversight of Microsoft's monopoly has been extended into 2009.

In a second monopoly claim, Apple was accused of monopolizing the European market for online music with iTunes. That claim was brought in France at the urging of Virgin. The US DoJ supported Apple, stating that iTunes' success came in a healthy market with open competition. PC World noted that "the [EU] Commission's main target is not Apple but the music companies and music rights agencies, which work on a national basis and give Apple very little choice but to offer national stores."
post #2 of 87
The whole damn world is either about a monopoly or an oligopoly. At least Apple provides quality products in its share of the pie. This case will flop as Psystar is simply a leech of a company.
post #3 of 87
Quote:
Originally Posted by CREB View Post

This case will flop as Psystar is simply a leech of a company.

I never saw how Psystar had a case to begin with. I honestly look forward to reading the comments here that will state how Apple has a monopoly by offering unison of HW and SW and how Psystar will win against Apple.
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post #4 of 87
Quote:
Originally Posted by solipsism View Post

I never saw how Psystar had a case to begin with. I honestly look forward to reading the comments here that will state how Apple has a monopoly by offering unison of HW and SW and how Psystar will win against Apple.

And they will come from the same clowns who clamor for OS X on any old hardware one can cobble together. Oh, and the headless, non-desrcript Mac-in-a-box crowd too.
post #5 of 87
Quote:
Originally Posted by lkrupp View Post

And they will come from the same clowns who clamor for OS X on any old hardware one can cobble together. Oh, and the headless, non-desrcript Mac-in-a-box crowd too.

What he said...

The quote above from Apple's filing states it clearly and succinctly... there is no such thing as a "Mac market".
post #6 of 87
What Pystar is trying to sue Apple for is the equivalent of me trying to sue Pepsi Co. because Pepsi Co. won't let me sell rebottled Mountain Dew, and trying to claim that Pepsi Co. has a monopoly on Mountain Dew. You can't have a monopoly on your own unique product.
post #7 of 87
Quote:
Originally Posted by Cory Bauer View Post

What Pystar is trying to sue Apple for is the equivalent of me trying to sue Pepsi Co. because Pepsi Co. won't let me sell rebottled Mountain Dew, and trying to claim that Pepsi Co. has a monopoly on Mountain Dew. You can't have a monopoly on your own unique product.

I think you are wrong. I can go down and buy OS X but cant install it on non apple hardware? Can I go buy just the Mountain Dew syrup? sure you can, then you can get some water and carbonation and make some dew. But were talking about different things. One is tangible hard to compare.
post #8 of 87
Quote:
Originally Posted by Cory Bauer View Post

You can't have a monopoly on your own unique product.

That's the exact thought that came to my mind when reading this article. (I like your Pepsi analogy too.) Pystar seems to be claiming that Apple has a monopoly simply because Apple is the only one that makes Apple computers. Hello Captain Obvious...no kidding! Just like Nike is the only one that makes Nike shoes! Why doesn't someone go and sue them too! Pystar has no chance.
post #9 of 87
Quote:
Originally Posted by W00dyW00d View Post

I think you are wrong. I can go down and buy OS X but cant install it on non apple hardware? Can I go buy just the Mountain Dew syrup? sure you can, then you can get some water and carbonation and make some dew. But were talking about different things. One is tangible hard to compare.

No, my analogy is exactly the same. Apple's lawyers even reference the same concept:

Quote:
"Relevant markets generally cannot be limited to a single manufacturers products. As the Supreme Court recognized in the United States v. E.I. DuPont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994 (1956), the power that, let us say, automobile or soft-drink manufacturers have over their trademarked products is not the power that makes an illegal monopoly. Illegal power must be appraised in terms of the competitive market for the product.'"

I can't rebottle and resell Mountain Dew. Pystar can't rebottle and resell Mac OS X.
post #10 of 87
Quote:
Originally Posted by emoney35 View Post

That's the exact thought that came to my mind when reading this article. (I like your Pepsi analogy too.) Pystar seems to be claiming that Apple has a monopoly simply because Apple is the only one that makes Apple computers. Hello Captain Obvious...no kidding! Just like Nike is the only one that makes Nike shoes! Why doesn't someone go and sue them too! Pystar has no chance.

Maybe Apple will be awarded treble damages.

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post #11 of 87
Quote:
Originally Posted by Cory Bauer View Post

No, my analogy is exactly the same. Apple's lawyers even reference the same concept:



I can't rebottle and resell Mountain Dew. Pystar can't rebottle and resell Mac OS X.

I think the point you're trying to make is that repackaging then selling on someone else's product is the illegal activity that Pystar has committed.

Like if you took Pepsi's drink, put it in a new bottle and sold it for a profit. Then Pepsi would have a case against you for infringing their copyright, patents and possibly trademarks.
post #12 of 87
Quote:
Originally Posted by W00dyW00d View Post

I think you are wrong. I can go down and buy OS X but cant install it on non apple hardware? Can I go buy just the Mountain Dew syrup? sure you can, then you can get some water and carbonation and make some dew. But were talking about different things. One is tangible hard to compare.

It is comparable. You can buy Mountain Dew syrup an authorized distributor, but you can't legally repackage it as OpenDew claiming that Pepsi has an illegal monopoly on the Mountain Dew market.

edit: This has been already answered multiple times now
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post #13 of 87
Microsoft needs to be sued on many bases. I can't wait for their dramatic and tragic end.
Apple had me at scrolling
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post #14 of 87
Quote:
Originally Posted by solipsism View Post

It is comparable. You can buy Mountain Dew syrup an authorized reseller, but you can't legally repackage it as OpenDew claiming that Pepsi has an illegal monopoly on the Mountain Dew market.

Pepsi will never sell its recipe like that. Sure you can buy water and other parts but not the secret formula.
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post #15 of 87
Quote:
Originally Posted by iVlad View Post

Pepsi will never sell its recipe like that. Sure you can buy water and other parts but not the secret formula.

Fountain drinks are done that way. You by the bags of syrup from the companies and then buy the carbonation from another source. Then you have a fountain tech(?) make sure the balance is correct.

PS: McDonald's Restaurant has the best tasting Coke for some reason.


edit: Distributor would have been a better word than reseller.
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post #16 of 87
It's not as simple as rebottling Mountain Dew. It's Pepsi selling you the syrup (OS X) and saying you can only use it with Pepsi-brand carbonated water (Apple's hardware). The argument is that Apple is leveraging OS X to acquire hardware sales that they didn't "earn" (by the hardware's own merit).

This is a more complex case than most think. It will set a strong precedent for the legality of vertically integrated systems.

One analogy a while back comes to mind: Razors, razor blades, and blade refills. Shick makes the bulk of their money selling blade refills which are designed to fit their razors. Would it be legal, for example, for Shick to demand a user only use Shick-brand razor blades with their Shick razor even though Home Best makes blade refills that fit the razor perfectly?

That's the question this case will answer.

-Clive
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post #17 of 87
As I understand it, the reason Microsoft's case is different (in the case of Internet Explorer anyway) is because they used their dominant market position in the OS sector to force hardware manufacturer's to pre-install it on new machines. In other words they were using their huge market share and colluding with their friends in order to force Netscape etc. out of the marketplace.

For an antitrust case to be successful, Apple would need to be working with other companies to restrict competition. Apple operates a closed loop system, producing both the hardware and OS, so how is there any Antitrust? If, like MS, they had worked with another company, then you could argue antitrust, but as it is, its impossible as Apple states in the filling.
post #18 of 87
Quote:
Originally Posted by solipsism View Post

PS: McDonald's Restaurant has the best tasting Coke for some reason.

+1 on that! I don't know what they do, but there is a difference for sure. They made bank off of me this summer with their $1 large drink promotion.
post #19 of 87
Quote:
Originally Posted by Clive At Five View Post

It's not as simple as rebottling Mountain Dew. It's Pepsi selling you the syrup (OS X) and saying you can only use it with Pepsi-brand carbonated water (Apple's hardware). The argument is that Apple is leveraging OS X to acquire hardware sales that they didn't "earn" (by the hardware's own merit).

This is a more complex case than most think. It will set a strong precedent for the legality of vertically integrated systems.

One analogy a while back comes to mind: Razors, razor blades, and blade refills. Shick makes the bulk of their money selling blade refills which are designed to fit their razors. Would it be legal, for example, for Shick to demand a user only use Shick-brand razor blades with their Shick razor even though Home Best makes blade refills that fit the razor perfectly?

That's the question this case will answer.

-Clive

The problem with what you say is that Pystar is making a profit by hacking Apple's OS, putting it in a new box and selling it on. If they sold a box that was capable of running OSX but didn't supply it pre-installed they would be in a better position legally.

Although the mac is a generic device underneath its os x that separates Apple from every other computer. As Apple owns the code, it is able to decide what to do with that code. It could, like MS sell it to device makers, but Apple chooses to use it themselves. It's like if BMW invented a new type of car brakes and patented the design. They could opt to use this design on their cars only, making them unique. However they could also license the technology to other manufacturers. THEY HAVE A CHOICE!

Also, since when does a business have to "earn" sales based on its products performance. If that was the case surely Microsoft would be bankrupt by now! Your point is flawed because OSX makes the mac unique - its Apple's unique selling point over their competitors. Its the same with the Pepsi analogy, they have a USP - their secret recipe, but that doesn't make them a monopoly over pepsi drinks. If it did, there wouldn't be any competition at all.

The razor case is quite different. If, for example Shick had a patent on the particular design of that attachment, then they could sue Home Best for infrigment. If they don't or its a standard design, or they just don't care, then Home Best is free to do as it wishes. The point being: Apple has patents and copyright over OSX and wishes to protect those copyrights/patents.
post #20 of 87
Quote:
Originally Posted by CREB View Post

The whole damn world is either about a monopoly or an oligopoly. At least Apple provides quality products in its share of the pie. This case will flop as Psystar is simply a leech of a company.

Yea Yea yahooooooo. We finally have an Apple store in New Orleans..well Metairie, anyway, Open today I'll check it out tomorrow. At last civilization has arrived.
post #21 of 87
This case really isn't all that difficult or complex.

Apple has every right to protect their investment in software and hardware by mandating that their SW run on their hardware.

Psystar seems to think that just because a platform is based on ubiquitous hardware they should be able to circumvent any protections and EULA and actually profit from this.

Pray tell what is the incentive for manufactures to develop new technologies when other companies can simply modify their product and resell without license?

My view is that Apple has not thwarted attempts to run Windows, BSD or Linux on their Intel machines so they have in no way restricted consumers rights unfairly. In fact Apple has gone above and beyond to ensure compatibility (Bootcamp).

Leechstar's case is without merit. OS X development is subsidized by their hardware profits. I don't think leeches should be allowed to come and eat Apple's lunch simply because they think they can.
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post #22 of 87
Quote:
Originally Posted by W00dyW00d View Post

I think you are wrong. I can go down and buy OS X but cant install it on non apple hardware? Can I go buy just the Mountain Dew syrup? sure you can, then you can get some water and carbonation and make some dew. But were talking about different things. One is tangible hard to compare.

Except, try and sell your homemade Mountain Dew and see what happens!
post #23 of 87
Quote:
Originally Posted by W00dyW00d View Post

I think you are wrong. I can go down and buy OS X but cant install it on non apple hardware?

Technically, what you're buying is an update to OS X when you purchase it in the box. So no, you can not install an update on non-Apple hardware, just like you can't use an update CD to install Windows on a new HD.
post #24 of 87
The first issue I have is Apple saying there isn't such a thing as a Mac OS market. That is a bit of stupidity in my mind as the only reason people have to buy Apple computers is the OS. With out the market for Mac OS Apple wouldn't have a business at all. The very mention of this in Apples fillings leaves them open to attack. No rational person can say that a market does not exist for MacOS.

Second if you end up at the wrong end of an anti trust investigation you can end up doing business with people you don't want to deal with. I'm not really sure why Apple even suggested that this is an issue because one could interpet it as an anti competitive practice.

As to the reselling of the Apple OS CD, Apple doesn't have a leg to stand on there either if recent copy right rulings against the music industry can be applied to Apples installation disk. Plus Apple has the sticky problem of all the specific licenses that the various components of it's OS are released under.

Frankly I think in the long run it would be good for Apple to loose at least part of this suit. In the end they might have to sell a generic Mac OS installation disk for $600, no big deal there. On the positive side it would force Apple to put more effort into the Mac Hardware business which would be good for both Apple and us as consumers.

Of course as Apple does better with computer hardware sales they will need to pay more attetion to their hardware line up to maintain momentum. Paying attention to consumer wants and needs will be required as well as innovation. If this law suit makes Apple even a lulittle bit more responsive to the consummer and the products they want then it will be a good thing and Pystar can be seen as giving the community a positive boost.


Dave
post #25 of 87
Quote:
Originally Posted by wizard69 View Post

No rational person can say that a market does not exist for MacOS.

They didn't say there isn't a market for OS X, they said that OS X is not a market in and of itself, thereby limiting competition.

Quote:
As to the reselling of the Apple OS CD, Apple doesn't have a leg to stand on there either if recent copy right rulings against the music industry can be applied to Apples installation disk.

Can you explain this as I have no idea what copyright ruling allows one company to steal IP and violate patents and licenses from another?

Quote:
Frankly I think in the long run it would be good for Apple to loose at least part of this suit. In the end they might have to sell a generic Mac OS installation disk for $600, no big deal there.

How is that no big deal? How is that good for the consumer or Apple? I don't want to pay another $600 for an OS update within 2 years of owning a Mac.

Quote:
More effort into the Mac Hardware business which would be good for both Apple and us as consumers. Of course as Apple does better with computer hardware sales they will need to pay more attetion to their hardware line up to maintain momentum.

Apple's HW efforts have caused the Mac to grow at phenomenal rates compared to most of the market.

Quote:
Paying attention to consumer wants and needs will be required as well as innovation. If this law suit makes Apple even a little bit more responsive to the consummer and the products they want then it will be a good thing and Pystar can be seen as giving the community a positive boost.

Apple has the boost working for it already it with the free market deciding. The only people that can see that forcing Apple to support any and all PC vendors and HW without concern for fair competition are Socialists.
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post #26 of 87
Quote:
Originally Posted by wizard69 View Post

The first issue I have is Apple saying there isn't such a thing as a Mac OS market. That is a bit of stupidity in my mind as the only reason people have to buy Apple computers is the OS. With out the market for Mac OS Apple wouldn't have a business at all. The very mention of this in Apples fillings leaves them open to attack. No rational person can say that a market does not exist for MacOS.

I don't see it. In order for there to be a market, there kind of needs to be more than one company doing it. You don't say, "Pepsi is the best Pepsi in the market." That doesn't make sense. Now, I will say I'm very tempted to say that Mac OS X is the best Mac OS X in the market, but I'm kind of a fan boy.

This is like saying Creative needs to license their MP3 player OS to other hardware vendors so they can make a Creative MP3 clone. That's retarded. There isn't a Creative MP3 player market. It's a proprietary MP3 player. They don't have to license their OS to anybody. It's theirs to do with as they please.
post #27 of 87
Well, I'm one of those that want a mid-range Mac tower, or better OS X that will run on any commodity PC hardware...

However, I don't necessarily side with Psystar...

I do think it could be a more complicated case than most here think, but it all depends on how the case is argued.

First of all, Psystar is violating Apple's licensing by installing OS X on commodity PCs. They should and will be fined for this.

Second, the issue of whether there is a Mac market is a rather gray area. There is a UNIX/Linux market, a Microsoft Windows market, and a Mac market. There is no PC market, however there is a computing market of which all of these are a part, but they are all separate segments with their own particulars. The majority just happen to run on Intel compatible hardware due to the commodity cost of the hardware. In the UNIX/Linux market you have competition because no one company can monopolize the UNIX standard. Microsoft and Apple do not have any competition in their markets because no one can, or has tried to create a Microsoft Windows or Macintosh compatible operating system. The question is, is Microsoft or Apple preventing this from happening? If the answer is yes, then they are using an unfair monopoly over their respective markets to squash competition. There is no standing in this case for this argument, but it would be an interesting case if someone tried to create a Windows or Mac compatible operating system and either Microsoft or Apple moved to squash them. Apple would be at a disadvantage in this case, because of the amount of open source software at the root of their operating system. Someone theoretically could take Darwin, do a bunch of development with it to get it to run Apple apps and resell it as a OS X compatible operating system. If Apple were to purposely re-code their operating system to break the compatibility, they'd be violating anti-trust laws.

Microsoft's monopoly conviction (the part that applies to this case) was based on Microsoft actively working to prevent competing operating systems like Novell from being pre-installed by computer vendors. They used their monopoly status in the business computing market to threat revoking PC vendors' licenses to install Windows on their hardware. If the vendor lost their license to install Windows, they would be sure to go out of business, so they had to comply with Microsoft's demands to stay in business. The only way the government could of remedied the situation, would of been to create another Windows compatible operating system company that could compete with Microsoft. However, the government has no power to do this. The market must compete on its own merits.
post #28 of 87
Quote:
Originally Posted by trboyden View Post

In the UNIX/Linux market you have competition because no one company can monopolize the UNIX standard. Microsoft and Apple do not have any competition in their markets because no one can, or has tried to create a Microsoft Windows or Macintosh compatible operating system.

Apple does have competitors when you lump them in with Unix: FreeBSD, Solaris, and any other operating system that is Unix certified. All Mac OS X is is Unix that they've created a bunch of nice API's for and repackaged with their name. Will other Unix apps run on OS X? Yes and No. As long as the code was written using standard C or C++ libraries (or whatever programming language), it will work. But if you use any API's that are unique to that OS you'll have to duplicate those API's for the other OS. Will OS X apps run on other Unix OS's? Yes and No. Again, if you use any of Apple's proprietary API's then you'll have to write your own API's that do the same thing for the other OS and then link your code against those when you compile on that system, but there's nothing stopping you from doing that. In fact, the Objective-C runtime already runs on most operating systems, including Windows. You just have to watch out for those Cocoa libraries that are only available on OS X.

Quote:
Originally Posted by trboyden View Post

The question is, is Microsoft or Apple preventing this from happening?

No. There are several Unix clones out there. Apple hasn't tried to stop them from making their clones.

This is just silly. Apple is a hardware manufacturer and they make software that runs on their hardware. To then force them to license that software to other companies so they can steal their hardware business would be stupid. Should Creative have to license their MP3 player OS to another hardware maker? Should IBM have to license their AS400 software to run on another companies hardware? Should Microsoft have to license their Zune software to other hardware makers? The answer is obviously no. They CAN if they would like, but no company should be forced to put themselves out of business.
post #29 of 87
Well I disagree with all.

First off with Linux or Windows if you become annoyed with Hardware Maker A (due to price, quality, or features) you can switch to Hardware Maker 2 but use the same software. On OS X you are stuck with Apple Hardware and should you choose to make your free market choice to switch to another hardware maker due to your MacBook dying and having horrible service from Apple (just an example) you can't bring your OS X software with you, but perhaps even MORE importantly that software like Office 08 for Mac and Photoshop that you have spent $1000 dollars for doesn't work with Windows or Linux but only with OS X.

Second, Apple would still make money selling OS X (raise the fees for non upgrades, just like Windows has an upgrade version and a retail version). Also I don't think the hardware sales would go away. I just bought a MacBook yesterday and I will run both Vista and OS X on it, but alot of my work will be primarly Vista so I have little reason to get OS X. However I like the design of the notebook, its great specs and good size. (I hate big laptops). Vista runs really well on it, as does OS X. Sure Apple may have to also OEM Windows and push Boot Camp to be even better, but is that a bad thing to make their HARDWARE the BEST. Sell on Quality, Design, Dedicated Stores that you can bring your computer in to get support.

They can't require that Apple support other hardware in the Apple Store, do like Microsoft does and make the other Hardware makers support their install.

My thoughts...

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post #30 of 87
Quote:
Originally Posted by W00dyW00d View Post

I think you are wrong. I can go down and buy OS X but cant install it on non apple hardware? Can I go buy just the Mountain Dew syrup? sure you can,

Not if Mountain Dew didn't want to sell it to you, then you couldn't.
post #31 of 87
All of these arguments and analogies are useless. There simply is no absolute, objective way to define what constitutes a "market", and consequently, there is no absolute, objective way to define what constitutes a monopoly. All of these arguments are contrived and silly. A market is a market if and when the courts declare it to be so, and a monopoly is a monopoly if and when the courts declare it to be so.

The court will look to the historical precedents, and with virtual certainty will judge that there is not sufficient distinction between Apple's PC and non-Apple PC products to deem that Apple's PC product constitutes a "market".

Assuming that Apple's end-user license for the OS stipulates that it may only be installed on computers manufactured and sold by Apple, Apple's original claim against Psystar is much more solid. But the court finding on this will likely not address the scenario where a company such as Psystar leaves it for the purchaser to install the OS themselves, because the arguments will likely focus on the fact that Psystar is pre-installing Apple's OS. If it is technically possible for companies such as Psystar to sell computers on which the OS will install just the same as it will install on Apple hardware, companies such as Psystar will simply resort to selling compatible computers where the OS has not been preinstalled, and it will have accomplished virtually nothing for Apple to have sued Psystar.

Legal tactics will likely be useless against that sort of thing, unless Apple intends to sue every individual who buys such a computer from such a company. It will make a great deal more sense for Apple to rig the OS so that it will only install and run on hardware in which a key has been embedded. This is not a technically difficult thing to do, but it will present logistical problems for legacy Apple hardware that lacks the embedded key. The solution is a bit messy. The OS will install on any hardware, but during the boot, if the OS does not detect the requisite key within the hardware, it will stop and prompt the user to type in a key. Apple will supply a key over the phone to any user who can provide a valid serial number for their Apple hardware, and Apple will have to track the ownership history by serial number. This is the only way to effectively prevent companies such as Psystar from selling compatible hardware without the OS preinstalled, and the thing that I find interesting about it is that it also defeats the current practice of Psystar, rendering Apple's action against Psystar moot. As such, it makes little sense to me for Apple to have taken legal action against Psystar, unless perhaps Apple intends to look the other way when these companies start selling the compatible hardware without preinstalling the OS, which does not seem remotely likely.

The bottom line is that notwithstanding that Apple will prevail in the immediate legal dispute with Psystar, it will accomplish little or nothing toward solving their problem. It seems that Apple has not thought this through at all well, which is surprising and, as a stock holder in Apple, a little disconcerting.
post #32 of 87
Apple legal (obviously) really knows their stuff. What's funny is the thing apple could do is would be so simple, legal and easy:

"The mac os for macs is $129. We're creating a version of the mac os for pcs, it's $1000 and only runs on (insert) specs. Any 3rd party that wants to buy the mac os for pcs must pay $2000 per seat."

Which is basically saying, anyone can buy it but no one wants to buy it, effectively nothing would change. Piracy of the mac os you say? Well that's already happening now!

edit: I just read the thread, I did not read wizard69's post before I posted.
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post #33 of 87
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Originally Posted by lkrupp View Post

And they will come from the same clowns who clamor for OS X on any old hardware one can cobble together. Oh, and the headless, non-desrcript Mac-in-a-box crowd too.

Don't you bring xMac into this! xMac is a valid computer! If only apple would make it!
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post #34 of 87
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Originally Posted by hmurchison View Post

This case really isn't all that difficult or complex.

Apple has every right to protect their investment in software and hardware by mandating that their SW run on their hardware.

Psystar seems to think that just because a platform is based on ubiquitous hardware they should be able to circumvent any protections and EULA and actually profit from this.

Pray tell what is the incentive for manufactures to develop new technologies when other companies can simply modify their product and resell without license?

My view is that Apple has not thwarted attempts to run Windows, BSD or Linux on their Intel machines so they have in no way restricted consumers rights unfairly. In fact Apple has gone above and beyond to ensure compatibility (Bootcamp).

Leechstar's case is without merit. OS X development is subsidized by their hardware profits. I don't think leeches should be allowed to come and eat Apple's lunch simply because they think they can.

+1, I couldn't have said it better myself.

 

 

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post #35 of 87
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Originally Posted by solipsism View Post

PS: McDonald's Restaurant has the best tasting Coke for some reason.

Yeah I was just thinking that the other day, I had mcdonalds for the first time in a while and I honestly thought "wtf this coke is so good!" But their minute maid orange is always watered down.
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post #36 of 87
It's sad to read some of these posts from individuals that possess complete ignorance and disrespect for IP property. Why aren't these same people raising a stink against the XBox platform or Nintendo, Sony or other "closed" systems that use off-the-shelf hardware? Why is Apple the exception to the rule of a closed system?

Just because you can walk into a store and buy the OSX cd's does not mean that you "own" it. Purchasing that CD is meant as upgrade to an existing Apple computer. People that rant about "I bought it, I own it, I can do whatever I want with it, it's my property" really have major issues. Psystar is basically buying that upgrade CD and selling a Mac-knockoff for profit. Why is this concept so hard for people to understand?

In many ways, I hope Apple discontinues selling the upgrade CD's and only sell them to buyers that can prove they own a legitimate system. Yes, it will inconvenience many legitimate users but considering the amount of money Apple is spending to defend their property against a growing legion of leeches and abusers, their money and energy can be much better utilized toward continual product improvement. It will put to end once and for all this debacle.

This is not an Apple fanboy rant. This is about protecting one's property.

Psystar will lose and they very well deserve to become roadkill for it.
post #37 of 87
Quote:
Originally Posted by trboyden View Post

Well, I'm one of those that want a mid-range Mac tower, or better OS X that will run on any commodity PC hardware...

However, I don't necessarily side with Psystar...

I do think it could be a more complicated case than most here think, but it all depends on how the case is argued.

First of all, Psystar is violating Apple's licensing by installing OS X on commodity PCs. They should and will be fined for this.

Second, the issue of whether there is a Mac market is a rather gray area. There is a UNIX/Linux market, a Microsoft Windows market, and a Mac market. There is no PC market, however there is a computing market of which all of these are a part, but they are all separate segments with their own particulars. The majority just happen to run on Intel compatible hardware due to the commodity cost of the hardware. In the UNIX/Linux market you have competition because no one company can monopolize the UNIX standard. Microsoft and Apple do not have any competition in their markets because no one can, or has tried to create a Microsoft Windows or Macintosh compatible operating system. The question is, is Microsoft or Apple preventing this from happening? If the answer is yes, then they are using an unfair monopoly over their respective markets to squash competition. There is no standing in this case for this argument, but it would be an interesting case if someone tried to create a Windows or Mac compatible operating system and either Microsoft or Apple moved to squash them. Apple would be at a disadvantage in this case, because of the amount of open source software at the root of their operating system. Someone theoretically could take Darwin, do a bunch of development with it to get it to run Apple apps and resell it as a OS X compatible operating system. If Apple were to purposely re-code their operating system to break the compatibility, they'd be violating anti-trust laws.

Microsoft's monopoly conviction (the part that applies to this case) was based on Microsoft actively working to prevent competing operating systems like Novell from being pre-installed by computer vendors. They used their monopoly status in the business computing market to threat revoking PC vendors' licenses to install Windows on their hardware. If the vendor lost their license to install Windows, they would be sure to go out of business, so they had to comply with Microsoft's demands to stay in business. The only way the government could of remedied the situation, would of been to create another Windows compatible operating system company that could compete with Microsoft. However, the government has no power to do this. The market must compete on its own merits.

I don't really know if you completely get what everyone means by "market". There is no "windows market," or "mac market," there is "the operating system market" of which all are apart.

If such markets existed I could theoretically sue Microsoft for the XP app I bought not working on Vista, because Vista now controls the windows market. That doesn't make sense.

Within the operating systems market there are many apps (adobe apps, windows apps, even mac apps) and file standards(doc, rtf, mov, etc.) that do work on multiple platforms, the problem was with microsoft making sure key apps were made for their operating system, with their OS team (example: internet explorer users could go to site designed for it, which could have been the vast majority of sites, or peoples fear of being unable to open word documents on a mac) making it impossible for other OSes to offer anything useful to consumers, in turn making hardware vendors have no choice of which OS to sell with their systems.

Competing products are part of a group market, not their own as people have pointed out. I can't sue a clothing company for a certain stitching design on their pants and say they're monopolizing the levis pants market. But if they were making it that I couldn't make pants at all and no one would sell me any pants material then I'd have a case.

It's just as if I were to sue you because you were hogging the whole "trboyden market", it doesn't make sense. If I want to be a person I can be my own person, if I want to be like you I can try to be like you, but I can't force you to let me be you. That's what psystar is doing, they're both PC hardware vendors and they're trying to force apple to give them their secret sauce.

If they want to give their customers a mac like experience, they can develop their own mac like OS as long as it doesn't infringe on any technologies apple owns.

They can also choose who to they want to sell to, if for some reason apple sold their OS to dell and psystar said can you sell it to me? And apple said no, that would also no be a crime. If apple said to Microsoft, we want to bundle windows with our OS so our customers can literally have both out of the box and choose to use which they like and Microsoft said no all the while selling to the companies they currently do that also would not be a crime.

Psystar hasn't got a leg to stand on because they haven't proven there to be a market that apple is dominating.

If anyone has a case against anything apple its other mp3 manufacturers vs itunes. People not being able to properly interface their players with the biggest music store in north america and possibly the world is just a suit waiting to happen. Drm free downloads for a higher price really isn't enough.
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post #38 of 87
I agree with everyone who is stating that Psystar is in clear violation of the license agreement for OS X. But the point that's being missed here is what the real beef of this, whether that license term "Apple-labeled", is legally enforceable. This is why Psystar filed the countersuit; Apple clearly is involved in product tying: "I make this so if you want to buy it you must buy suchandsuch from me too". As to whoever stated it was an "Upgrade Only" CD purchased from Apple - It states no such thing. Check your facts. (You may construe it that way, but Apple does not market it that way; hence no upgrade pricing. You do realize Apple hits us up for $129 at a go, right?)

This isn't a consumer protection, which is the ostensible rationale for the trademark system. "Preventing consumer confusion." Psystar doesn't state they are Apple. They don't assert that their hardware carries an Apple warranty or other support. They just sell OS X Compatible hardware.

I use a MacBook and an iPod regularly. I until about 10 years back used an Apple IIgs as my main computer. The GS was my favorite computer until I bought the MacBook. I like Apple's products but I dislike misuse of the intellectual property laws. Anti-competitive with Psystar. Thuggish with the RIAA and MPAA. And I've heard that if Disney ever loses their eternal-copyright-on-the-installment-plan on their officially-time-limited copyrights, they plan to effectively reclaim ownership by simply suing anyone for violating their trademarks even tho the copyright becomes expired.

Psystar is standing up against a really abusive intellectual property legal framework that has truly perverted anything the US Constitution ever stood for. (Pardon me for being American.) You might be willing to sell your own consumer choice down the river - this "Apple has the right to have everything easy, the darling rascal that can play merrily in its own walled OS land, while Microsoft gets raked over the competitive coals" approach to law the fanboys have taken up. What justifies this? Magic? The Reality Distortion Field? Shiny white or now aluminum boxes? You do realize that both companies market to the consumer population an operating system.

I want to make one thing here clear tho, I would not support Psystar simply duplicating OS X onto systems without purchasing it. I believe that a fair, free market relies on legitimate copyright - Psystar should pay Apple for each and every copy of the software they resell. Apple sells it on the open market for $129. If Psystar is willing to pay that money, and absorb the entire technical support cost associated with their installer hack, let them. So far as I know, this is Psystar's business model. I cannot vouch for their product quality, it may be far worse than or far superior to Apple's. But I do value legitimate consumer choice.

Let Psystar fail on their own merits if they will; don't get the courts involved. Apple can turn away customer support for these machines based on their non-qualification of the system requirements. But if Apple codes explicitly to break these machines, there's definitely a valid antitrust case to be had, a very major one.

-Jon
post #39 of 87
Just playing devil's advocate here...

Quote:
Originally Posted by nizy View Post

The problem with what you say is that Pystar is making a profit by hacking Apple's OS, putting it in a new box and selling it on. If they sold a box that was capable of running OSX but didn't supply it pre-installed they would be in a better position legally.

What's the problem with Psystar making a profit using a product they bought from Apple? Apple made its profit by selling the OS. See, the problem for Apple is that they sell OS X over the counter. We call it common knowledge that this OS is an "upgrade only" version... but Apple doesn't market it as this. They sell it off the shelf as a stand-alone OS.

And the hyperbole about hacking is way overblown by people who know little of the process. A simplified explanation is this: One loads a specially created bootloader which teaches one's system how to communicate with the retail OS X DVD. He/she then installs the OS and replaces the stock bootloader with the specialized one permanently. With a good selection of hardware, nothing else needs modification. My xHack worked out-of-the-box for everything I used. The only thing that didn't work was digital audio which I decided to enable anyway. It was a simple matter of adding a vendor number to a kext so that the OS would not be so stubborn and communicate with "non-apple sanctioned hardware," not anything technical like adding driver information.

Quote:
Originally Posted by nizy View Post

Although the mac is a generic device underneath its os x that separates Apple from every other computer. As Apple owns the code, it is able to decide what to do with that code. It could, like MS sell it to device makers, but Apple chooses to use it themselves. It's like if BMW invented a new type of car brakes and patented the design. They could opt to use this design on their cars only, making them unique. However they could also license the technology to other manufacturers. THEY HAVE A CHOICE!

*sigh* Please, no more car analogies. To address your hypothetical situation, you have to put it in the context of Apple. Say BMW sells their patented brake system separately, over-the-counter. Would they have the right to force you only to install it on a BMW vehicle even though it will work flawlessly on any other automobile? It sounds like "Tying" to me.

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Originally Posted by nizy View Post

Also, since when does a business have to "earn" sales based on its products performance. If that was the case surely Microsoft would be bankrupt by now! Your point is flawed because OSX makes the mac unique - its Apple's unique selling point over their competitors. Its the same with the Pepsi analogy, they have a USP - their secret recipe, but that doesn't make them a monopoly over pepsi drinks. If it did, there wouldn't be any competition at all.

Whaaaa? Every company has to earn their sales. OS X earns it sales, Apple's hardware - being the only route to attain OS X - does not earn its sales. The Microsoft example can't be used as we all know they partake in shifty business practices. But to say that Apple doesn't have to earn their sales because MS doesn't... is just... wrong. MS's business practices are less than wholesome and for Apple to follow in their footsteps is shameful.

To get back to your argument, OS X makes OS X unique, not the Mac (I assume you're implying that the Mac = the hardware). The Mac hardware is as generic as can be. The only difference is the motherboard but every company's motherboards differ slightly. Apple's MoBoard is as different from a Dell's as Dell's is from a Compaq's... which is not much. That said, OS X is just an add-on to rake in extra sales. Therefore, the hardware does not always earn its sale, but instead is a reluctant mandate on someone who might really just want OS X.

If OS X was critically tied to the hardware it uses, that would be a different story but since so many "hackers" have shown it runs perfectly on 3rd-party hardware, we all know that's not the case.

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Originally Posted by nizy View Post

The razor case is quite different. If, for example Shick had a patent on the particular design of that attachment, then they could sue Home Best for infrigment. If they don't or its a standard design, or they just don't care, then Home Best is free to do as it wishes. The point being: Apple has patents and copyright over OSX and wishes to protect those copyrights/patents.

You're getting the two things backwards. The razor... handle, if you will... is the OS X part. The blade refills are akin to the hardware, i.e. the unnecessary thing whose purchase is being demanded by Apple even though other 3rd-party blades fit the razor handle perfectly.

-Clive
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post #40 of 87
Quote:
Originally Posted by W00dyW00d View Post

I think you are wrong. I can go down and buy OS X but cant install it on non apple hardware? Can I go buy just the Mountain Dew syrup? sure you can, then you can get some water and carbonation and make some dew. But were talking about different things. One is tangible hard to compare.

You willingly and knowingly buy a software product that can only be installed, legally on Apple branded Hardware and demand the right to install it on non-branded Apple Hardware?

Please do me a favor. Don't use Linux, Solaris, FreeBSD, OpenBSD, NetBSD, OS X, hell even Windows.

Attempting to ''outsmart'' based upon feigning ignorance and right to be ignorant, like ignorance of the Law, is no Defense, protected by the Law.
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