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?
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!
Now it's clear that you are purposely being obtuse.
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!
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.
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.
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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.
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.
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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.
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.
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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!
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.
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!
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.
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.
In addition, without Apple's permission or consent, Psystar makes copies of, and offers to customers for download rrom its website, ww.psystar.com. "updates" to the Leopard softare that are either direct copies of Apple-generated updates and/or unauthorized modified versions of softare updates rrom Apple.
Quote:
Apple licenses the use of its Macintosh operating system ("Mac OS") software for use only on Apple-labeled hardware. Indeed, an original version of the Mac OS is available only with the purchase of a Macintosh computer. Upgrades to the Mac OS may be licensed separately, but the
the Mac OS or its upgrades on non-Apple hardware.
Quote:
28
"1. General. The softare (including Boot ROM Code). .. accompanying this License whether preinstalled on Apple-labeled hardware, on disk, in read only memory, or any other media or in any other form (collectively, the "Apple Softare") are licensed, not sold, to you by Apple Inc. ("Apple") for use only under the terms ofthis License, and Apple reserves
For an attorney, you're making a whole lot of hasty generalizations and jumping to conclusions.
...
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.
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.
This is open source code they've been distributing sans profit.
It's not open source.
Profit or sales is a not a requirement of copyright infringement or violation of contract law.
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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.
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.
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.
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.
{{{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.
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.
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.
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.
We could just cut to the chase, and lay some long green on it. What are you comfortable with, 4 figure$?
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'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.
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:
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You don't need to spend an arm and a leg to get the full OS X Leopard experience. Apple's Mac Mini is completely stripped and still expensive. Why would you want a stripped-down computer, anyway? You asked for a good and inexpensive computer that can run OS X and we answered with the Open Computer which is...
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.
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.
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?
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.
A case about copyright infringement has nothing to do with copyright?
A case about violation of the EULA (breach of contract) has nothing to do with EULAs?
The merits of Apple's case against Psystar IS all about copyright, trademark and EULAs and they are going to hammer phystar under with it.
Comments
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.
Now it's clear that you are purposely being obtuse.
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?
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!
Now it's clear that you are purposely being obtuse.
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!
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.
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.
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.
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.
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.
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.
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!
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.
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!
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.
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.
In addition, without Apple's permission or consent, Psystar makes copies of, and offers to customers for download rrom its website, ww.psystar.com. "updates" to the Leopard softare that are either direct copies of Apple-generated updates and/or unauthorized modified versions of softare updates rrom Apple.
Apple licenses the use of its Macintosh operating system ("Mac OS") software for use only on Apple-labeled hardware. Indeed, an original version of the Mac OS is available only with the purchase of a Macintosh computer. Upgrades to the Mac OS may be licensed separately, but the
the Mac OS or its upgrades on non-Apple hardware.
28
"1. General. The softare (including Boot ROM Code). .. accompanying this License whether preinstalled on Apple-labeled hardware, on disk, in read only memory, or any other media or in any other form (collectively, the "Apple Softare") are licensed, not sold, to you by Apple Inc. ("Apple") for use only under the terms ofthis License, and Apple reserves
alI rights not expressly granted to you....
http://docs.justia.com/cases/federal...204881/1/0.pdf
If you read this, you're sure that Psystar will loose
For an attorney, you're making a whole lot of hasty generalizations and jumping to conclusions.
...
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.
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.
Again, they aren't selling it.
This is open source code they've been distributing sans profit.
It's not open source.
Profit or sales is a not a requirement of copyright infringement or violation of contract law.
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.
YANAL (You Are Not A Lawyer).
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.
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.
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.
You're joking, right?
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.
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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.
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.
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.
{{{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.
We could just cut to the chase, and lay some long green on it. What are you comfortable with, 4 figure$?
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!
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.
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:
You don't need to spend an arm and a leg to get the full OS X Leopard experience. Apple's Mac Mini is completely stripped and still expensive. Why would you want a stripped-down computer, anyway? You asked for a good and inexpensive computer that can run OS X and we answered with the Open Computer which is...
{{{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.
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.
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?
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.
A case about copyright infringement has nothing to do with copyright?
A case about violation of the EULA (breach of contract) has nothing to do with EULAs?
The merits of Apple's case against Psystar IS all about copyright, trademark and EULAs and they are going to hammer phystar under with it.