Psystar drops antitrust gripes in fresh counterclaim against Apple

Posted:
in General Discussion edited January 2014
Florida's now well-known unofficial Mac clone maker has modified its counterclaim against Apple to drop some of the riskier assertions of anti-competitive behavior, but has similarly added new sections that refute allegations of violating the DMCA.



The altered response, which would be filed on January 15th if given permission by a Northern District of California court judge, specifically omits the Clayton Act and Sherman Act antitrust claims of monopolistic abuse of copyright that had triggered Apple's successful motion to dismiss in the fall. Psystar "respectfully disagrees" with the court's interpretation of a monopolistic market but will abide by the earlier ruling for now.



However, the PC builder maintains that copyright is still at the heart of the issue. Psystar insists that Apple's policies regarding Mac OS X are considered abuse under the legally recognized concept of a "misuse doctrine," which prevents copyright from being wielded to block competition outside of any officially sanctioned terms.



As such, proof of a specific antitrust violation isn't necessary, the company argues. Instead, it's allegedly only the spirit of the law reflected in public policies that matters. Apple's end-user license agreement (EULA) is regarded as a threat in that it lets Apple have absolute control over hardware -- a component not covered under the largely software-focused Copyright Act -- and facilitates Apple's ability to abuse copyright law, even if it doesn't violate specific antitrust laws.



According to Psystar, this also extends to the Digital Millennium Copyright Act (DMCA) violations that Apple has added to the expanded lawsuit filed after its motion to dismiss was granted. Where Apple is convinced Psystar is breaking anti-circumvention laws by running Mac OS X on unauthorized hardware, the latter company insists that simply rendering hardware like its Mac clones compatible isn't a violation and that Apple is going beyond the bounds of copyright by suggesting otherwise.



Apple is thought responsible for violating California's Unfair Competition Statute as a result of the argument, which allows claims made under more universal terms.



The amended counterclaim also challenges the notion that the current response of Mac OS X to a non-Apple system doesn't constitute a copy protection system: just triggering an infinite loop or a kernel panic when particular firmware isn't in place doesn't represent a real defense mechanism, Psystar says.



No significant changes have been made to the penalties the company is seeking, which could potentially include a preliminary injunction against Apple's behavior. Even so, Psystar believes that its stripped down version of its lawsuit exists only for the "simplification" of the suit and that it has the right to reintroduce its Clayton and Sherman antitrust accusations should it get more definitive proof that Apple has violated either of those acts.
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Comments

  • Reply 1 of 143
    tenobelltenobell Posts: 7,014member
    Its not antitrust because its not against the law for a company to monopolize their own product.
  • Reply 2 of 143
    Regardless of my feelings for Apple, this is bullshit. It's Apple software, it's Apple hardware. There's no illegal behavior. This would be like suing Nintendo because Mario isn't available on the Xbox. Even worse: it'd be like suing Nintendo because Wii games only play on the Wii, and not a generic Playstation. How ridiculous.
  • Reply 3 of 143
    its not antitrust and not monopoly. A company can control how its proprietary product marketed and sold. Psystar is just hoping to delay the inevitable.
  • Reply 4 of 143
    These psystar douchebags deserve to go to hell
  • Reply 5 of 143
    maivmaiv Posts: 5member
    any corporate lawyers out there care to share your expertise?

    thanks.
  • Reply 6 of 143
    I'm not a lawyer but one of my buddies from school is and according to him "Psyshit is screwed" (those are his exact words).
  • Reply 7 of 143
    mr. hmr. h Posts: 4,698member
    Quote:
    Originally Posted by maiv View Post


    any corporate lawyers out there care to share your expertise?

    thanks.



    I don't think you need to be a lawyer to see that Psystar are really clutching at straws here.



    If I understand AI's article correctly part of Psystar's defence to the new DMCA allegations is that OS X doesn't contain anti-copying measures, because it, well, does contain anti-copying measures but they're not very complicated. Worst. Argument. Ever.
  • Reply 8 of 143
    aaarrrggghaaarrrgggh Posts: 1,567member
    Quote:
    Originally Posted by vercordio View Post


    Regardless of my feelings for Apple, this is bullshit. It's Apple software, it's Apple hardware.



    You are forgetting about an important piece of the chain-- the person that purchases the software and the hardware.



    This time around they are getting closer to issues that I consider important: How much can a software vendor restrict the rights of someone who purchases their product. Implicitly, this challenges EULAs as a class of contract.
  • Reply 9 of 143
    aaarrrggghaaarrrgggh Posts: 1,567member
    Quote:
    Originally Posted by Mr. H View Post


    I don't think you need to be a lawyer to see that Psystar are really clutching at straws here.



    If I understand AI's article correctly part of Psystar's defence to the new DMCA allegations is that OS X doesn't contain anti-copying measures, because it, well, does contain anti-copying measures but they're not very complicated. Worst. Argument. Ever.



    What they are really saying is that Apple has introduced an incompatibility to enforce their EULA, rather than a true copy protection issue. You could argue that fixing an incompatibility is different than breaking (cryptographic) copy protection.



    ROT13 is still copy protection, at least in the DMCA's eyes.
  • Reply 10 of 143
    Quote:
    Originally Posted by aaarrrgggh View Post


    You are forgetting about an important piece of the chain-- the person that purchases the software and the hardware.



    This time around they are getting closer to issues that I consider important: How much can a software vendor restrict the rights of someone who purchases their product. Implicitly, this challenges EULAs as a class of contract.



    I think you'd have every software company on the planet ready to file a suit against Psystar if this is anywhere near being a serious legal challenge.
  • Reply 11 of 143
    wigginwiggin Posts: 2,265member
    So there is a "legally recognized concept of a misuse" pertaining to copyright? Does this mean that I can write a book based on the Harry Potter characters and JK Rowlings would have nothing to say about it because she would be wielding her copyright "to block competition outside of any officially sanctioned terms"? In fact, a recent court case Rowlings won confirms her right to prevent someone else from using her copyrighted works for their own gain.



    Also, Psystar "insists that simply rendering hardware like its Mac clones compatible isn't a violation." But if I understand correctly, they aren't rendering their hardware compatible with Apple's software. They are rendering Apple's software compatible with their hardware. That's a subtle, but significant difference. They can make hardware using the same components Apple uses all day long without issue. But as soon as they modify code (either in software or firmware) that Apple owns the copyright to, then aren't they breaking the law?
  • Reply 12 of 143
    Quote:
    Originally Posted by aaarrrgggh View Post


    You are forgetting about an important piece of the chain-- the person that purchases the software and the hardware.



    I don't disagree, but software is allowed to have operating requirements as long as they are clearly stated at the time of purchase. Every copy of OS X is sold with the distinct indication that it must be run on Apple hardware. No one is being tricked into buying OS X just to find out that they have to buy a Mac before they can use it.



    Again, tell me how this is different than Nintendo selling Wii games that can't run on the Xbox.
  • Reply 13 of 143
    Quote:
    Originally Posted by Wiggin View Post


    So there is a "legally recognized concept of a misuse" pertaining to copyright? Does this mean that I can write a book based on the Harry Potter characters and JK Rowlings would have nothing to say about it because she would be wielding her copyright "to block competition outside of any officially sanctioned terms"? In fact, a recent court case Rowlings won confirms her right to prevent someone else from using her copyrighted works for their own gain.



    Also, Psystar "insists that simply rendering hardware like its Mac clones compatible isn't a violation." But if I understand correctly, they aren't rendering their hardware compatible with Apple's software. They are rendering Apple's software compatible with their hardware. That's a subtle, but significant difference. They can make hardware using the same components Apple uses all day long without issue. But as soon as they modify code (either in software or firmware) that Apple owns the copyright to, then aren't they breaking the law?



    You don't have to modify apples code. You just add EFI emulation. And there are boards starting to show up that use EFI. A retail copy of OSX could boot right up straight out of the box with no modification whatsoever. You would add drivers or rather kexts but that would be adding, not modifying. No different than installing your own software on your computer. There is also a USB EFI emulator. Plug that in a board running an Intel or even now certain Nvidia chipsets and OSX boots up right out of the box.



    And apple certainly doesn't own EFI.



    Quote:
    Originally Posted by vercordio View Post


    I don't disagree, but software is allowed to have operating requirements as long as they are clearly stated at the time of purchase. Every copy of OS X is sold with the distinct indication that it must be run on Apple hardware.



    According to the EULA. But a EULA will not stand up in court.
  • Reply 14 of 143
    virgil-tb2virgil-tb2 Posts: 1,416member
    Quote:
    Originally Posted by aaarrrgggh View Post


    You are forgetting about an important piece of the chain-- the person that purchases the software and the hardware.



    This time around they are getting closer to issues that I consider important: How much can a software vendor restrict the rights of someone who purchases their product. Implicitly, this challenges EULAs as a class of contract.



    You are kind of making the same mistake as Psystar here though in that they seem (and you as well), to just not understand/appreciate/believe/buy the central idea that Apple sells hardware and software together. They have never sold the OS for other hardware than their own. Uncoupling the software sale from the hardware sale is just not relevant. Sure everyone *else* sells OS's as a separate software product for whatever hardware you want to run it on, but that doesn't mean anyone can force Apple to do so.



    Similarly, Psystar's new argument that the software licensing agreement can't dictate hardware choices is also flawed because Apple has never un-bundled the two.
  • Reply 15 of 143
    nasseraenasserae Posts: 3,152member
    Yeah, lets keep throwing counterclaims and hope that one of them stick.
  • Reply 16 of 143
    Quote:
    Originally Posted by Virgil-TB2 View Post


    Sure everyone *else* sells OS's as a separate software product for whatever hardware you want to run it on, but that doesn't mean anyone can force Apple to do so.



    Not force apple to. But stop them from suing others. Essentially is boils down to the EULA which will not hold up. And psystar is buying each copy of OSX so apple is getting paid.



    I think people are going to be suprised by this case.
  • Reply 17 of 143
    cubertcubert Posts: 728member
    What a freakin' joke Psystar is! Grasping at straws.
  • Reply 18 of 143
    virgil-tb2virgil-tb2 Posts: 1,416member
    Quote:
    Originally Posted by AppleInsider View Post


    The amended counterclaim also challenges the notion that the current response of Mac OS X to a non-Apple system doesn't constitute a copy protection system: just triggering an infinite loop or a kernel panic when particular firmware isn't in place doesn't represent a real defense mechanism, Psystar says.



    This has to be the weakest argument I have heard in a long time. A copy protection system is simply anything that protects the software from being copied or used. The fact that it doesn't use a key makes no difference at all, it's the intent that matters.



    If I park my truck on an incline and I chose to put a block of wood under the wheel instead of using the hand-brake, that doesn't mean that I did nothing to stop my truck from rolling down the hill. I just used a different or unusual method to do so. I still had the intent of stopping my truck from rolling down the incline and it still worked.
  • Reply 19 of 143
    virgil-tb2virgil-tb2 Posts: 1,416member
    Quote:
    Originally Posted by archer75 View Post


    Not force apple to. But stop them from suing others. Essentially is boils down to the EULA which will not hold up. And psystar is buying each copy of OSX so apple is getting paid.



    I think people are going to be suprised by this case.



    They are buying a box of software that is supposed to be used to upgrade only Apple computers and has a licence in the box that says can't be used for anything else. Then they are modifying that software (again in violation of the agreement contained in the box), to use it for a different purpose. Then they are taking Apple's software updates and patches and hacking them to work on their customers machines. they are also encouraging others to do the same.



    I admit that the persistence of Psystar is kind of scaring me in that it seems like they actually expect to win, and US judges being what they are nowadays perhaps they might. But if they *do* win it would be so counterintuitive, and so disastrous that it's just not worth thinking about. if they win this case, copyright law might just as well be thrown out completely.



    There would be giant cascade of other cases and other effects if Psystar wins and that is probably the biggest argument against them. Judges tend to not like cases that if won, change about a hundred other laws as well. A win here would set a big scary precedent and change a lot of behaviour that has been agreed upon for most of the history of copyright law.
  • Reply 20 of 143
    aaarrrggghaaarrrgggh Posts: 1,567member
    Quote:
    Originally Posted by Virgil-TB2 View Post


    You are kind of making the same mistake as Psystar here though in that they seem (and you as well), to just not understand/appreciate/believe/buy the central idea that Apple sells hardware and software together. They have never sold the OS for other hardware than their own.



    So, if I go to an Apple store and purchase a copy of OS X then what do I have? No where on the box does it say that this is an "upgrade" from a previous version as is done in the Windows world. The EULA is the only thing that attempts to tie it to Apple hardware.



    I fully agree that the user experience of purchasing an Apple branded computer to run OS X will be better than running said software on a hackintosh. Apple has not claimed that this is their concern-- that companies like Pystar diminish the value of their brand by providing systems that do not live up to the Apple Standard. There might be some meat to that argument though.



    I am in no way an apologist for Pystar, but at the same time I would love to see a challenge to the idea that a customer can be forced to enter into a contract after a sale is made or not be able to use the software or get a refund. Common-sense EULAs are one thing (even the "no warranty" crap), but today they have gotten out of hand as a class.
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