In a related case, Microsoft have just announced that Microsoft Office 2009 will only work on systems with the new Microsoft Laser IntelliMouse 2009 TM. It will not install or run without the device present.
Steve Balmer said "As developers of this software, we want to guarantee that users get the best experience, and we can only deliver that experience when users employ the right hardware."
I'm not sure where I stand on this, to be honest. I'll be interested to see how this develops.
Am I right in saying:
1. Apple wants to remain the exclusive manufacturer of hardware capable of running the Mac OS
2. Psystar hasn't attempted to pass off Mac OS as their own product under a different name
I don't know much about the legalities, but to my mind, Psystar hasn't taken Pepsi's Mountain Dew, and rebottled it as their own. Psystar aren't attempting to pass off Mountain Dew as their product. Psystar are being completely transparent in the fact that they are reselling undoctored Mountain Dew.
The problem for me, is that Apple isn't selling a single product, but two:
A. Macintosh operating system
B. Macintosh hardware
Product A can only be used in conjunction with product B.
So for me, a better analogy would be that Pepsi were telling people that whilst they could purchase Mountain Dew on its own, they could only 'legally' drink Mountain Dew out of an official $1000 Pepsi Mountain Dew cup.
What Psystar is saying is that people should be able to drink Mountain Dew from whichever cup they see fit, and that Pepsi has deliberately taken technical steps to ensure that consumers can only drink Mountain Dew out of the official cup. Psystar have bought and paid for official Mountain Dew stock (they haven't duplicated the recipe, and started manufacturing it themselves) and they aren't attempting to pass it off as their own Psystar Dew product. They are simply reselling the official Mountain Dew product and pouring it into a third party cup. And Pepsi are pissed because that means they won't be selling a hell of lot of their $1000 cups.
Does that make sense, is that an accurate analogy? I'm not trying to take sides here, or pass judgement ? I'm simply trying to get a handle on the situation.
Or lets look at the same situation from the other direction.
What if you could buy Mountain Dew from any retailer, and drink it from any cup that you saw fit. That's the situation that we have today. But what if tomorrow Pepsi turned around and said, now you can only drink Mountain Dew from our official $1000 cup. People would be screaming MONOPOLY from the rooftops, because this absurd situation would only benefit the person manufacturing the $1000 cups, and that person would be the only person allowed to manufacture those cups.
It's kind of like Adobe turning around tomorrow and saying that you can only use CS4 on an official Adobe computer. There would be war in the streets!
There is an argument, that in this Pepsi Mountain Dew analogy, that Pepsi set out to create the best soft drink experience possible, and that from day one they realised that in order to achieve this, they would have to control every single aspect of that experience ? including designing proprietary technologies for the cup that it was drunk out of. Pepsi could argue that they had gone to great lengths and great expense in developing the ultimate soft drink experience, and that drinking Mountain Dew out of anything other than the official $1000 cup wouldn't deliver that ultimate experience.
Certainly, back in the day, Apple hardware featured a lot of proprietary components. You had 680x0 chips, Apple designed chipsets, NuBus etc. So I guess that in this analogy, yes, Pepsi could argue that their cup was substantially different from anybody else's cup, back in the day.
But today, apart from the enclosure designs, Apple's hardware is indistinguishable from anybody elses. They all use the same Intel processors and chipsets, the same RAM, the same hard disks, the same optical drives and the same video chipsets. The hardware itself is assembled from industry standard components by third parties who also build computers for other PC 'manufacturers'. About the only component that Apple has designed in recent years is the FireWire port, and they licensed that to everyone else anyway.
So in the Mountain Dew analogy, whilst Pepsi had originally designed a special cup that was substantially different from everyone else's cup, that is no longer true today. Indeed, today, Pepsi's official cup is identical to everyone else's cup in every single respect, but they have taken deliberate technical steps to ensure that Mountain Dew can still only be drunk out of their official $1000 cup.
Today, I think it would be hard for Pepsi to prove that Mountain Dew is best experienced when drunk from the official $1000 cup, when Pepsi is in fact using the same cup as everyone else. By adopting industry standard components over proprietary designs in an attempt to drive down costs, Pepsi has kind of shot itself in the foot here. To my mind, Pepsi would no longer claim any difference between their cup and every other cup out there, and subsequently can no longer claim that their cup delivers a better experience.
In the analogy, whilst Pepsi had originally designed a proprietary cup, Pepsi realised that today their cup was no different that every other cup out there, so Pepsi took steps to make sure that Mountain Dew could only be drunk out of their official cup. They would in fact be taking steps to stifle competition, and ultimately limit consumer choice ? trying to pass these measures off as 'delivering the best experience'.
In my experience, the only disadvantage that 'homebrew Mac' computers suffer from is a lack of drivers. This is kind of stating the obvious, because enclosure design aside, todays Apple Mac systems ARE generic third party systems. You would be hard pushed to find enough Apple designed proprietary components to back up a claim that the Mac OS was best experienced on a Mac. It would be like saying that the Mac OS is best experienced on Apple hardware because the keyboard is backlit. This lack of drivers isn't an indication of Apple's superiority, but rather of a situation that Apple has engineered.
I personally believe, that if someone like HP were to put together a 'Mac' using widely available third party components, and HP were to write the drivers themselves, the HP Mac would offer just as good a user experience as the Apple Mac. ? and as such, Apple would be guilty of anti-competitive practices.
So if Apple hardware is no different from everyone else's hardware, and Apple has taken steps to ensure that the Mac OS will only work with Apple hardware ? have they broken any laws?
I guess the point that I'm trying to make, in a very round about way, is that yes the Mac OS is the best OS out there, but Apple's hardware is the same as everyone else's ? it just looks better.
So how can Apple claim that running the Mac OS on their hardware offers a superior experience? Everybody knows that at the end of the day it's just down to a question of driver support?
It seems to me that the only reason that Apple is able to keep selling so much of their hardware is because the best OS out there is deliberately tethered to Apple hardware?
It not so much a question of who can sell Mac OS to whom, but rather whether Apple should be allowed to continue a situation where if you want to run the Mac OS you also have to purchase their hardware (even although their hardware is exactly the same as everybody elses, as offers no benefits).
If Apple hardware was different, and did offer a better experience, then fair enough. But otherwise, it is starting to look fishy to me...
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.
No Pystar are claiming Apple have a monopoly over computers sold with OS X. Apple didn't design that hardware that Pystar are selling so they have no rights over that and OS X is sold by Apple as an individual product which Pystar pay to buy. Therefore to try and stop a company selling a computer with OS X installed is anti-competitive.
There not saying Apple has to help a direct competitor as the part they compete on is the hardware. For each machine sold by Pystar they can still get the same cut they would for selling OS X on its own.
I don't see how Apple can class the hardware and software as 1 complete product when they sell half of it on its own themselves.
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 one absolute is that you can not legally define a "market" by siting a brand name. The "market" must be defined in such a way that it doesn't single out any company competing in that "market". Otherwise any laws written pertaining to that "market" will be unjust because it will single out the company mentioned. The "market" must exist without naming any brand or company. Otherwise it's not a legal definition of a "market".
So describe the markets the Apple competes in without using the terms Apple, Mac or OSX. You'll come up with personal computer hardware and computer operating systems. And Apple is not anywhere near a monopoly in any of these defined markets.
Microsoft has a monopoly in the computer operating system market. Not the Windows market.
And all of those that think Apple in illegally "tying" their products are also wrong. Illegal "tying" is when, in order to buy one product, you are forced to buy another product. And most of the time, though not always, the product you're forced to buy is unrelated to the product you want to buy. Like in order to buy a washing machine you're forced to buy a life insurance policy. But it may not be a case of illegal "tying" if in order to buy the washing machine you must also buy the matching dryer.
Apple does not force you to buy a Mac when you purchase OSX off the shelf. You are free to use OSX on a Mac that you already own or as a door stop. You don't have to prove that you even own a Mac in order to buy OSX. Now you may NEED to buy a Mac in order to USE OSX for it's intended purpose. But that's different from Apple FORCING you to buy a Mac before they sell you OSX. Plus you can buy a used Mac from a third party and thus Apple is not always profiting from you needing to buy a Mac to run OSX. There are plenty of places to buy used Macs and Apple do not prevent anyone from reselling their used Macs.
Of course you are not forced to buy OSX in order to buy a Mac. OSX is given to you when you buy a Mac. And you are not forced to use OSX on a Mac.
Can Mountain Dew force you to buy their carbonated water when you buy their syrup. They can if you're 'planning to resell your carbonated soda as "Mountain Dew" and Mountain Dew sells you the license to do so.
Speaking of Coke and McDonalds. If you own a McDonalds franchise, can you sell Pepsi? Can you go to your neighborhood Safeway to buy your hamburger meat, buns, tomatoes and lettuce? Is it illegal "tying" when McDonalds Corporation "forces" you to buy from them, the potatoes for your french fries? Not all "tying" is illegal.
Now if they forced you to drive a BMW, then you just might have a good case of illegal "tying".
Messiah, you make a good point, but it does not change the legality. Apple may be making an unreasonable demand on the user and customer, but they are within their rights to do so, because it is not reasonable to claim that a particular implementation of an idea, a specific item of intellectual property, constitutes a market in and of itself.
One would never argue (to add to the heap of analogies) that BMW has an illegal monopoly on M6s. Nor would the argue that they have an illegal monopoly on the machine's software. Cars are very dependent on software and firmware to drive these days, and I believe the comparison is apt.
And my red phone to the Apple Boardroom tells me that Steve Jobs and the board seem to agree that Apple is not selling two products, it's selling the Macintosh widget, all-in-one, a fusion of software, firmware, hardware, and design. It's easier to see this view in the iPhone, iPod and Apple TV. A computer is clearly more than just an assembly of parts, just as an OS is more than just a squishy mass of APIs. The internal connections and the bridge between physical and electronic make a computer work. I can't truly dismiss their opinion, especially because I find resonance between the mind/body myth, and the software/hardware dichotomy.
In a related case, Microsoft have just announced that Microsoft Office 2009 will only work on systems with the new Microsoft Laser IntelliMouse 2009 TM. It will not install or run without the device present.
Steve Balmer said "As developers of this software, we want to guarantee that users get the best experience, and we can only deliver that experience when users employ the right hardware."
The Laser Intellimouse will retail for $299
C.
You're analogy is flawed in that Microsoft has a monopoly in the office suite market. And therefore, them "tying" their office suite to their $299 mouse would be an abuse of that monopoly.
If Abode came out with a digital photo editing program that requires their $299 graphic tablet. Can they get away with it? Yes. They may not sell many programs but that's a marketing decision they can make because they do not have a monopoly in the digital photo editing software market.
On a side note, Steve Balmer announces that in order to get the best gaming experience from Halo 3. We will only make it available for the Xbox. Microsoft can do this because they do not have a monopoly in the game console market.
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.
This if true (I believe it is) is a point often missed by those arguing against Apple.
On an interesting related note, I have copies of every Mac OS X as a boxed items from pre release beta OS X through Leopard.
I was testing out some old Macs last week and reinstalling the OS. I noticed that stand alone boxed OS's in the early days actually required an earlier OS installed on the HD before they would run thus making you go through multiple installs. Panther and later would install on a blank HD. So Apple are kind enough these days to make their 'updates' work as if they were not updates.
They could easily return to the earlier system one would think and screw with folks trying this sort of thing. Pystar would be left unable to add the latest OS X without the manufacturer's version pre installed and good luck with that.
I hope they don't though, it is 'Mircosoftian' in its protectiveness and it would be a pain in the butt. For example replacing a broken HD in an older Mac to have to go through several installs starting with the disk shipped with the machine to get to the latest level that Mac could run.
...OS X is sold by Apple as an individual product which Pystar pay to buy.
OSX is sold by Apple as an *upgrade* to the software supplied with their hardware - this is the point people keep missing. It's an *upgrade* and requires an existing license, as does Windows XP *upgrade*, Office *upgrade* and so on. There's no car analogy - you need an existing license to legally make use of the upgrade, which Psystar does not have and cannot supply.
Quote:
Originally Posted by digitalclips
They could easily return to the earlier system one would think and screw with folks trying this sort of thing. Pystar would be left unable to add the latest OS X without the manufacturer's version pre installed and good luck with that.
This might be Apple's best solution. To make it less awkward for end users, the installer could ask for and validate the install DVD supplied with the hardware (the Windows upgrade will accept the media for a previous version to validate the upgrade) so that an existing installation isn't a necessity.
No Pystar are claiming Apple have a monopoly over computers sold with OS X. Apple didn't design that hardware that Pystar are selling so they have no rights over that and OS X is sold by Apple as an individual product which Pystar pay to buy. Therefore to try and stop a company selling a computer with OS X installed is anti-competitive.
There not saying Apple has to help a direct competitor as the part they compete on is the hardware. For each machine sold by Pystar they can still get the same cut they would for selling OS X on its own.
I don't see how Apple can class the hardware and software as 1 complete product when they sell half of it on its own themselves.
That is covered I suspect by the fact Apple don't sell OS X as a stand alone, only as an update to OS X which ships pre installed on Apple Hardware. If (see my previous post) the OS X disks Apple sell as updates refused to install (as they could well do) without detecting the Apple pre installed earlier version Pystar would be screwed.
As I said I hope Apple don't do this but they could and then the fact the off the shelf OS X isn't available for OEM hardware use would be more obvious to all.
You're analogy is flawed in that Microsoft has a monopoly in the office suite market. And therefore, them "tying" their office suite to their $299 mouse would be an abuse of that monopoly.
If Abode came out with a digital photo editing program that requires their $299 graphic tablet. Can they get away with it? Yes. They may not sell many programs but that's a marketing decision they can make because they do not have a monopoly in the digital photo editing software market.
On a side note, Steve Balmer announces that in order to get the best gaming experience from Halo 3. We will only make it available for the Xbox. Microsoft can do this because they do not have a monopoly in the game console market.
My software company back in the late 80's sold a very high end color separation system used by the printing industry and each software box sold with a 'dongle', i.e. a plastic box that plugged into the ADB port and had to be there for the software to run. Microsoft's new mouse has just become a dongle! Our software was a specialized market product but with Office it will be interesting to see if this is deemed as monopolistic due to market dominance. I do think it will spur the use of Open Office and similar projects!
BTW it will probably be got around quickly as an alternative 'dongle' is made by some clever hacker.
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.
Your basic premise is wrong, so your entire argument goes out the window. First, you don't buy OS X. You license it. That makes a difference.
Second, you can buy Mountain Dew syrup, but that is the equivalent of buying Mountain Dew soda. Try selling it in a region you are not licensed to sell it in and see what happens.
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Originally Posted by ncee
Except, try and sell your homemade Mountain Dew and see what happens!
Or, more on point, buy some Mountain Dew syrup, add your own ingredients, and then try to sell it as Mountain Dew and see what happens.
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Originally Posted by wizard69
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.
A market exists for Mac OS X, but that's not the same as saying that there is a Mac OS X market - in legal terms. Mac OS X is one brand of computer operating systems (#2 in the computer market by most reports). That does not make it a market on its own - any more than BMW has a monopoly because there's only one supplier of BMW cars.
I really wish people would learn at least the simplest basics of economics before making themselves look foolish.
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Originally Posted by UltimateKylie
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.
Your logic is all messed up - presumably because you're trying to compare hardware to software.
Mac OS X competes with Windows, Linux, Solaris, etc. Macintosh computers compete with Dell, HP, Toshiba, etc. If you don't like Dell, you can't buy a Dell computer from someone else - you have to buy a different brand. Similarly, if you don't like Apple, there are many computer brands you can buy. The fact that there's a barrier to change is irrelevant (there's a barrier to change when switching from Dell to HP, it's just much smaller in most cases). If you don't like Mac OS X, you can switch to Windows, Linux, etc.
People are confusing barriers to change with monopoly. This is absurd. A good marketing department always tries to create barriers to change - and Apple has done it well. That is not a monopoly.
As for needing new software if you change platforms, that's irrelevant, too. If you buy a BMW and have a whole garage full of BMW parts, those parts are useless if you switch to Mercedes - and you have to buy all new spare parts. Components which work with one purchased product are not required to work with all purchased products. Besides, that's up to the software vendors. At one time, you could get a free or nearly free license to switch platforms, but most (all?) vendors have dropped that now. Complain to them, not Apple.
Quote:
Originally Posted by SMADJon
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?)
You are wrong on the upgrade issue. Read the license agreement. It specifically states that the upgrade can only be installed on Apple labeled hardware. Since all Apple labeled hardware has Mac OS X from the factory, this is an upgrade.
Note that it would be clearly illegal for Psystar or anyone else to sell hardware with an Apple label on it since this would be a black and white trademark violation. So Apple's statement is clear. Now, one could argue that you, as an individual, could put an Apple sticker on Psystar hardware and therefore legally install OS X, but that doesn't clear Psystar (I don't think the courts would accept it even in the case of an individual, but it's just possible).
And the case is only peripherally about the license agreement. Apple has Psystar cold on so many issues that the judge is likely to dismiss the case long before they even get to the license agreement.
No Pystar are claiming Apple have a monopoly over computers sold with OS X. Apple didn't design that hardware that Pystar are selling so they have no rights over that and OS X is sold by Apple as an individual product which Pystar pay to buy. Therefore to try and stop a company selling a computer with OS X installed is anti-competitive.
There not saying Apple has to help a direct competitor as the part they compete on is the hardware. For each machine sold by Pystar they can still get the same cut they would for selling OS X on its own.
I don't see how Apple can class the hardware and software as 1 complete product when they sell half of it on its own themselves.
But the whole point of Apple's argument is that there is no "market" defined as "computers sold with OSX". The "market" is personal computer hardware. And Apple does not have a monopoly in the personal computer hardware market. Therefore it would not be anti-competitive for Apple to not license out OSX to their competitors in the personal computer hardware market. Once you take monopoly out of the equation, Apple can almost do as it pleases with their IP and hardware.
Messiah, you make a good point, but it does not change the legality. Apple may be making an unreasonable demand on the user and customer, but they are within their rights to do so, because it is not reasonable to claim that a particular implementation of an idea, a specific item of intellectual property, constitutes a market in and of itself.
One would never argue (to add to the heap of analogies) that BMW has an illegal monopoly on M6s. Nor would the argue that they have an illegal monopoly on the machine's software. Cars are very dependent on software and firmware to drive these days, and I believe the comparison is apt.
And my red phone to the Apple Boardroom tells me that Steve Jobs and the board seem to agree that Apple is not selling two products, it's selling the Macintosh widget, all-in-one, a fusion of software, firmware, hardware, and design. It's easier to see this view in the iPhone, iPod and Apple TV. A computer is clearly more than just an assembly of parts, just as an OS is more than just a squishy mass of APIs. The internal connections and the bridge between physical and electronic make a computer work. I can't truly dismiss their opinion, especially because I find resonance between the mind/body myth, and the software/hardware dichotomy.
Ok I got too philosophical.
As all car analogies are, your M6 analogy is a fail. BMW isn't tying every purchase of an M6 to the purchase of something else unnecessary that they claim is vital to the performance of the vehicle, say a diamond-encrusted racing stripe.
No, you know, I don't even want to go that direction. No more car analogies. Forget I said anything. All that's important is that Apple sells OS X in the store as a piece of software. As much as Apple would love for everyone to think that OS X can't run as well on other hardware, It's just not true. Any incompatibilities Hackintosh builders run into are a matter of drivers... not that they "can't" work but instead "won't." Apple built its OS so that it WON'T work with other devices... unless you modify your drivers... sometimes ever so slightly, like in my case, where I added a vendor number to a kext and the device started working.
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Originally Posted by knightlie
OSX is sold by Apple as an *upgrade* to the software supplied with their hardware - this is the point people keep missing. It's an *upgrade* and requires an existing license, as does Windows XP *upgrade*, Office *upgrade* and so on. There's no car analogy - you need an existing license to legally make use of the upgrade, which Psystar does not have and cannot supply.
No no, the "upgrade" notion is just an assumption made by people who know Apple well. Nowhere in Apple's marketing materials does it say that OS X Leopard is an upgrade. In fact, in keynotes, Steve has bragged that every copy of OS X is the full version.
There is an equally important legal issue that Psystar is doing. They are using a modified version of Mac OS for installation. It would be fun if Apple asked Psystar at the trial to install new of the box Mac OS X on an empty Psystar Open Computer without the use of any hacking tools.
There is an equally important legal issue that Psystar is doing. They are using a modified version of Mac OS for installation. It would be fun if Apple asked Psystar at the trial to install new of the box Mac OS X on an empty Psystar Open Computer without the use of any hacking tools.
On that note, while Psystar is in clear violation of stealing and altering Apple's IP, I don't think Apple has any valid case against EFiX.
I guess the point that I'm trying to make, in a very round about way, is that yes the Mac OS is the best OS out there, but Apple's hardware is the same as everyone else's ? it just looks better.
And since Apple in competing in the computer hardware market, how do they make their hardware "better" (besides looks) than that of Dell, HP or Acer? They developed OSX for it and to differentiated from other venders computer hardware they call it a Mac. Would you deny HP, Dell or Acer the right to make their hardware "better" than their competitors. Would you force HP, Dell or Acer to give up any competitive edge they may have to their competitors.
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So how can Apple claim that running the Mac OS on their hardware offers a superior experience? Everybody knows that at the end of the day it's just down to a question of driver support?
They don't. They claim that running OSX is a superior experience over Windows.
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It seems to me that the only reason that Apple is able to keep selling so much of their hardware is because the best OS out there is deliberately tethered to Apple hardware?
Bravo...you're not as clueless it first seems.
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It not so much a question of who can sell Mac OS to whom, but rather whether Apple should be allowed to continue a situation where if you want to run the Mac OS you also have to purchase their hardware (even although their hardware is exactly the same as everybody elses, as offers no benefits).
If Apple hardware was different, and did offer a better experience, then fair enough. But otherwise, it is starting to look fishy to me...
And if Apple let anybody use their OSX then what will make a Mac better than anyone else's computer hardware? Apple competes in the computer hardware market and do not make most of the hardware in their Macs. They put a lot of design effort into it but in the end it's made by the same manufacturers that make all others computer hardware. Apple hardware has a competitive edge over their competitors because of OSX. (Even you stated that there is very little difference in hardware.) So do you really think that it's fair that Apple should have to give up their competitive edge? It's not as though Apple is using some third party OS and is forcing that third party to not license that OS to their competitors. OSX belongs to Apple. Apple spent 400 million dollars to acquire it's basic framework from NeXT and spent billions of dollars more to develop it to where it is now. OSX is what makes a Mac experience better that their competitors in the computer hardware market. Apple competitors may have the same access to the hardware Apple uses but they don't have access to OSX. And Apple has every right to keep it that way.
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.
Actually, I think they should just start doing their major update releases through iTunes Appstore or something along that lines. Make it easy to burn a boot DVD and have it tied to your computer. It would cut down on the long lines for people waiting for the latest and greatest. I would certainly go for it. Of course, if you had dial-up you would probably most rather wait in those lines.
Comments
Steve Balmer said "As developers of this software, we want to guarantee that users get the best experience, and we can only deliver that experience when users employ the right hardware."
The Laser Intellimouse will retail for $299
C.
Am I right in saying:
1. Apple wants to remain the exclusive manufacturer of hardware capable of running the Mac OS
2. Psystar hasn't attempted to pass off Mac OS as their own product under a different name
I don't know much about the legalities, but to my mind, Psystar hasn't taken Pepsi's Mountain Dew, and rebottled it as their own. Psystar aren't attempting to pass off Mountain Dew as their product. Psystar are being completely transparent in the fact that they are reselling undoctored Mountain Dew.
The problem for me, is that Apple isn't selling a single product, but two:
A. Macintosh operating system
B. Macintosh hardware
Product A can only be used in conjunction with product B.
So for me, a better analogy would be that Pepsi were telling people that whilst they could purchase Mountain Dew on its own, they could only 'legally' drink Mountain Dew out of an official $1000 Pepsi Mountain Dew cup.
What Psystar is saying is that people should be able to drink Mountain Dew from whichever cup they see fit, and that Pepsi has deliberately taken technical steps to ensure that consumers can only drink Mountain Dew out of the official cup. Psystar have bought and paid for official Mountain Dew stock (they haven't duplicated the recipe, and started manufacturing it themselves) and they aren't attempting to pass it off as their own Psystar Dew product. They are simply reselling the official Mountain Dew product and pouring it into a third party cup. And Pepsi are pissed because that means they won't be selling a hell of lot of their $1000 cups.
Does that make sense, is that an accurate analogy? I'm not trying to take sides here, or pass judgement ? I'm simply trying to get a handle on the situation.
Or lets look at the same situation from the other direction.
What if you could buy Mountain Dew from any retailer, and drink it from any cup that you saw fit. That's the situation that we have today. But what if tomorrow Pepsi turned around and said, now you can only drink Mountain Dew from our official $1000 cup. People would be screaming MONOPOLY from the rooftops, because this absurd situation would only benefit the person manufacturing the $1000 cups, and that person would be the only person allowed to manufacture those cups.
It's kind of like Adobe turning around tomorrow and saying that you can only use CS4 on an official Adobe computer. There would be war in the streets!
Would you guys agree that this is the situation?
Certainly, back in the day, Apple hardware featured a lot of proprietary components. You had 680x0 chips, Apple designed chipsets, NuBus etc. So I guess that in this analogy, yes, Pepsi could argue that their cup was substantially different from anybody else's cup, back in the day.
But today, apart from the enclosure designs, Apple's hardware is indistinguishable from anybody elses. They all use the same Intel processors and chipsets, the same RAM, the same hard disks, the same optical drives and the same video chipsets. The hardware itself is assembled from industry standard components by third parties who also build computers for other PC 'manufacturers'. About the only component that Apple has designed in recent years is the FireWire port, and they licensed that to everyone else anyway.
So in the Mountain Dew analogy, whilst Pepsi had originally designed a special cup that was substantially different from everyone else's cup, that is no longer true today. Indeed, today, Pepsi's official cup is identical to everyone else's cup in every single respect, but they have taken deliberate technical steps to ensure that Mountain Dew can still only be drunk out of their official $1000 cup.
Today, I think it would be hard for Pepsi to prove that Mountain Dew is best experienced when drunk from the official $1000 cup, when Pepsi is in fact using the same cup as everyone else. By adopting industry standard components over proprietary designs in an attempt to drive down costs, Pepsi has kind of shot itself in the foot here. To my mind, Pepsi would no longer claim any difference between their cup and every other cup out there, and subsequently can no longer claim that their cup delivers a better experience.
In the analogy, whilst Pepsi had originally designed a proprietary cup, Pepsi realised that today their cup was no different that every other cup out there, so Pepsi took steps to make sure that Mountain Dew could only be drunk out of their official cup. They would in fact be taking steps to stifle competition, and ultimately limit consumer choice ? trying to pass these measures off as 'delivering the best experience'.
In my experience, the only disadvantage that 'homebrew Mac' computers suffer from is a lack of drivers. This is kind of stating the obvious, because enclosure design aside, todays Apple Mac systems ARE generic third party systems. You would be hard pushed to find enough Apple designed proprietary components to back up a claim that the Mac OS was best experienced on a Mac. It would be like saying that the Mac OS is best experienced on Apple hardware because the keyboard is backlit. This lack of drivers isn't an indication of Apple's superiority, but rather of a situation that Apple has engineered.
I personally believe, that if someone like HP were to put together a 'Mac' using widely available third party components, and HP were to write the drivers themselves, the HP Mac would offer just as good a user experience as the Apple Mac. ? and as such, Apple would be guilty of anti-competitive practices.
So if Apple hardware is no different from everyone else's hardware, and Apple has taken steps to ensure that the Mac OS will only work with Apple hardware ? have they broken any laws?
So how can Apple claim that running the Mac OS on their hardware offers a superior experience? Everybody knows that at the end of the day it's just down to a question of driver support?
It seems to me that the only reason that Apple is able to keep selling so much of their hardware is because the best OS out there is deliberately tethered to Apple hardware?
It not so much a question of who can sell Mac OS to whom, but rather whether Apple should be allowed to continue a situation where if you want to run the Mac OS you also have to purchase their hardware (even although their hardware is exactly the same as everybody elses, as offers no benefits).
If Apple hardware was different, and did offer a better experience, then fair enough. But otherwise, it is starting to look fishy to me...
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.
No Pystar are claiming Apple have a monopoly over computers sold with OS X. Apple didn't design that hardware that Pystar are selling so they have no rights over that and OS X is sold by Apple as an individual product which Pystar pay to buy. Therefore to try and stop a company selling a computer with OS X installed is anti-competitive.
There not saying Apple has to help a direct competitor as the part they compete on is the hardware. For each machine sold by Pystar they can still get the same cut they would for selling OS X on its own.
I don't see how Apple can class the hardware and software as 1 complete product when they sell half of it on its own themselves.
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 one absolute is that you can not legally define a "market" by siting a brand name. The "market" must be defined in such a way that it doesn't single out any company competing in that "market". Otherwise any laws written pertaining to that "market" will be unjust because it will single out the company mentioned. The "market" must exist without naming any brand or company. Otherwise it's not a legal definition of a "market".
So describe the markets the Apple competes in without using the terms Apple, Mac or OSX. You'll come up with personal computer hardware and computer operating systems. And Apple is not anywhere near a monopoly in any of these defined markets.
Microsoft has a monopoly in the computer operating system market. Not the Windows market.
And all of those that think Apple in illegally "tying" their products are also wrong. Illegal "tying" is when, in order to buy one product, you are forced to buy another product. And most of the time, though not always, the product you're forced to buy is unrelated to the product you want to buy. Like in order to buy a washing machine you're forced to buy a life insurance policy. But it may not be a case of illegal "tying" if in order to buy the washing machine you must also buy the matching dryer.
Apple does not force you to buy a Mac when you purchase OSX off the shelf. You are free to use OSX on a Mac that you already own or as a door stop. You don't have to prove that you even own a Mac in order to buy OSX. Now you may NEED to buy a Mac in order to USE OSX for it's intended purpose. But that's different from Apple FORCING you to buy a Mac before they sell you OSX. Plus you can buy a used Mac from a third party and thus Apple is not always profiting from you needing to buy a Mac to run OSX. There are plenty of places to buy used Macs and Apple do not prevent anyone from reselling their used Macs.
Of course you are not forced to buy OSX in order to buy a Mac. OSX is given to you when you buy a Mac. And you are not forced to use OSX on a Mac.
Can Mountain Dew force you to buy their carbonated water when you buy their syrup. They can if you're 'planning to resell your carbonated soda as "Mountain Dew" and Mountain Dew sells you the license to do so.
Speaking of Coke and McDonalds. If you own a McDonalds franchise, can you sell Pepsi?
Now if they forced you to drive a BMW, then you just might have a good case of illegal "tying".
One would never argue (to add to the heap of analogies) that BMW has an illegal monopoly on M6s. Nor would the argue that they have an illegal monopoly on the machine's software. Cars are very dependent on software and firmware to drive these days, and I believe the comparison is apt.
And my red phone to the Apple Boardroom tells me that Steve Jobs and the board seem to agree that Apple is not selling two products, it's selling the Macintosh widget, all-in-one, a fusion of software, firmware, hardware, and design. It's easier to see this view in the iPhone, iPod and Apple TV. A computer is clearly more than just an assembly of parts, just as an OS is more than just a squishy mass of APIs. The internal connections and the bridge between physical and electronic make a computer work. I can't truly dismiss their opinion, especially because I find resonance between the mind/body myth, and the software/hardware dichotomy.
Ok I got too philosophical.
In a related case, Microsoft have just announced that Microsoft Office 2009 will only work on systems with the new Microsoft Laser IntelliMouse 2009 TM. It will not install or run without the device present.
Steve Balmer said "As developers of this software, we want to guarantee that users get the best experience, and we can only deliver that experience when users employ the right hardware."
The Laser Intellimouse will retail for $299
C.
You're analogy is flawed in that Microsoft has a monopoly in the office suite market. And therefore, them "tying" their office suite to their $299 mouse would be an abuse of that monopoly.
If Abode came out with a digital photo editing program that requires their $299 graphic tablet. Can they get away with it? Yes. They may not sell many programs but that's a marketing decision they can make because they do not have a monopoly in the digital photo editing software market.
On a side note, Steve Balmer announces that in order to get the best gaming experience from Halo 3. We will only make it available for the Xbox. Microsoft can do this because they do not have a monopoly in the game console market.
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.
This if true (I believe it is) is a point often missed by those arguing against Apple.
On an interesting related note, I have copies of every Mac OS X as a boxed items from pre release beta OS X through Leopard.
I was testing out some old Macs last week and reinstalling the OS. I noticed that stand alone boxed OS's in the early days actually required an earlier OS installed on the HD before they would run thus making you go through multiple installs. Panther and later would install on a blank HD. So Apple are kind enough these days to make their 'updates' work as if they were not updates.
They could easily return to the earlier system one would think and screw with folks trying this sort of thing. Pystar would be left unable to add the latest OS X without the manufacturer's version pre installed and good luck with that.
I hope they don't though, it is 'Mircosoftian' in its protectiveness and it would be a pain in the butt. For example replacing a broken HD in an older Mac to have to go through several installs starting with the disk shipped with the machine to get to the latest level that Mac could run.
...OS X is sold by Apple as an individual product which Pystar pay to buy.
OSX is sold by Apple as an *upgrade* to the software supplied with their hardware - this is the point people keep missing. It's an *upgrade* and requires an existing license, as does Windows XP *upgrade*, Office *upgrade* and so on. There's no car analogy - you need an existing license to legally make use of the upgrade, which Psystar does not have and cannot supply.
They could easily return to the earlier system one would think and screw with folks trying this sort of thing. Pystar would be left unable to add the latest OS X without the manufacturer's version pre installed and good luck with that.
This might be Apple's best solution. To make it less awkward for end users, the installer could ask for and validate the install DVD supplied with the hardware (the Windows upgrade will accept the media for a previous version to validate the upgrade) so that an existing installation isn't a necessity.
No Pystar are claiming Apple have a monopoly over computers sold with OS X. Apple didn't design that hardware that Pystar are selling so they have no rights over that and OS X is sold by Apple as an individual product which Pystar pay to buy. Therefore to try and stop a company selling a computer with OS X installed is anti-competitive.
There not saying Apple has to help a direct competitor as the part they compete on is the hardware. For each machine sold by Pystar they can still get the same cut they would for selling OS X on its own.
I don't see how Apple can class the hardware and software as 1 complete product when they sell half of it on its own themselves.
That is covered I suspect by the fact Apple don't sell OS X as a stand alone, only as an update to OS X which ships pre installed on Apple Hardware. If (see my previous post) the OS X disks Apple sell as updates refused to install (as they could well do) without detecting the Apple pre installed earlier version Pystar would be screwed.
As I said I hope Apple don't do this but they could and then the fact the off the shelf OS X isn't available for OEM hardware use would be more obvious to all.
You're analogy is flawed in that Microsoft has a monopoly in the office suite market. And therefore, them "tying" their office suite to their $299 mouse would be an abuse of that monopoly.
If Abode came out with a digital photo editing program that requires their $299 graphic tablet. Can they get away with it? Yes. They may not sell many programs but that's a marketing decision they can make because they do not have a monopoly in the digital photo editing software market.
On a side note, Steve Balmer announces that in order to get the best gaming experience from Halo 3. We will only make it available for the Xbox. Microsoft can do this because they do not have a monopoly in the game console market.
My software company back in the late 80's sold a very high end color separation system used by the printing industry and each software box sold with a 'dongle', i.e. a plastic box that plugged into the ADB port and had to be there for the software to run. Microsoft's new mouse has just become a dongle! Our software was a specialized market product but with Office it will be interesting to see if this is deemed as monopolistic due to market dominance. I do think it will spur the use of Open Office and similar projects!
BTW it will probably be got around quickly as an alternative 'dongle' is made by some clever hacker.
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.
Your basic premise is wrong, so your entire argument goes out the window. First, you don't buy OS X. You license it. That makes a difference.
Second, you can buy Mountain Dew syrup, but that is the equivalent of buying Mountain Dew soda. Try selling it in a region you are not licensed to sell it in and see what happens.
Except, try and sell your homemade Mountain Dew and see what happens!
Or, more on point, buy some Mountain Dew syrup, add your own ingredients, and then try to sell it as Mountain Dew and see what happens.
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.
A market exists for Mac OS X, but that's not the same as saying that there is a Mac OS X market - in legal terms. Mac OS X is one brand of computer operating systems (#2 in the computer market by most reports). That does not make it a market on its own - any more than BMW has a monopoly because there's only one supplier of BMW cars.
I really wish people would learn at least the simplest basics of economics before making themselves look foolish.
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.
Your logic is all messed up - presumably because you're trying to compare hardware to software.
Mac OS X competes with Windows, Linux, Solaris, etc. Macintosh computers compete with Dell, HP, Toshiba, etc. If you don't like Dell, you can't buy a Dell computer from someone else - you have to buy a different brand. Similarly, if you don't like Apple, there are many computer brands you can buy. The fact that there's a barrier to change is irrelevant (there's a barrier to change when switching from Dell to HP, it's just much smaller in most cases). If you don't like Mac OS X, you can switch to Windows, Linux, etc.
People are confusing barriers to change with monopoly. This is absurd. A good marketing department always tries to create barriers to change - and Apple has done it well. That is not a monopoly.
As for needing new software if you change platforms, that's irrelevant, too. If you buy a BMW and have a whole garage full of BMW parts, those parts are useless if you switch to Mercedes - and you have to buy all new spare parts. Components which work with one purchased product are not required to work with all purchased products. Besides, that's up to the software vendors. At one time, you could get a free or nearly free license to switch platforms, but most (all?) vendors have dropped that now. Complain to them, not Apple.
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?)
You are wrong on the upgrade issue. Read the license agreement. It specifically states that the upgrade can only be installed on Apple labeled hardware. Since all Apple labeled hardware has Mac OS X from the factory, this is an upgrade.
Note that it would be clearly illegal for Psystar or anyone else to sell hardware with an Apple label on it since this would be a black and white trademark violation. So Apple's statement is clear. Now, one could argue that you, as an individual, could put an Apple sticker on Psystar hardware and therefore legally install OS X, but that doesn't clear Psystar (I don't think the courts would accept it even in the case of an individual, but it's just possible).
And the case is only peripherally about the license agreement. Apple has Psystar cold on so many issues that the judge is likely to dismiss the case long before they even get to the license agreement.
No Pystar are claiming Apple have a monopoly over computers sold with OS X. Apple didn't design that hardware that Pystar are selling so they have no rights over that and OS X is sold by Apple as an individual product which Pystar pay to buy. Therefore to try and stop a company selling a computer with OS X installed is anti-competitive.
There not saying Apple has to help a direct competitor as the part they compete on is the hardware. For each machine sold by Pystar they can still get the same cut they would for selling OS X on its own.
I don't see how Apple can class the hardware and software as 1 complete product when they sell half of it on its own themselves.
But the whole point of Apple's argument is that there is no "market" defined as "computers sold with OSX". The "market" is personal computer hardware. And Apple does not have a monopoly in the personal computer hardware market. Therefore it would not be anti-competitive for Apple to not license out OSX to their competitors in the personal computer hardware market. Once you take monopoly out of the equation, Apple can almost do as it pleases with their IP and hardware.
...
*Standing ovation* Bravo. Everybody please read Messiah's 3-port marathon.
Messiah, you make a good point, but it does not change the legality. Apple may be making an unreasonable demand on the user and customer, but they are within their rights to do so, because it is not reasonable to claim that a particular implementation of an idea, a specific item of intellectual property, constitutes a market in and of itself.
One would never argue (to add to the heap of analogies) that BMW has an illegal monopoly on M6s. Nor would the argue that they have an illegal monopoly on the machine's software. Cars are very dependent on software and firmware to drive these days, and I believe the comparison is apt.
And my red phone to the Apple Boardroom tells me that Steve Jobs and the board seem to agree that Apple is not selling two products, it's selling the Macintosh widget, all-in-one, a fusion of software, firmware, hardware, and design. It's easier to see this view in the iPhone, iPod and Apple TV. A computer is clearly more than just an assembly of parts, just as an OS is more than just a squishy mass of APIs. The internal connections and the bridge between physical and electronic make a computer work. I can't truly dismiss their opinion, especially because I find resonance between the mind/body myth, and the software/hardware dichotomy.
Ok I got too philosophical.
As all car analogies are, your M6 analogy is a fail. BMW isn't tying every purchase of an M6 to the purchase of something else unnecessary that they claim is vital to the performance of the vehicle, say a diamond-encrusted racing stripe.
No, you know, I don't even want to go that direction. No more car analogies. Forget I said anything. All that's important is that Apple sells OS X in the store as a piece of software. As much as Apple would love for everyone to think that OS X can't run as well on other hardware, It's just not true. Any incompatibilities Hackintosh builders run into are a matter of drivers... not that they "can't" work but instead "won't." Apple built its OS so that it WON'T work with other devices... unless you modify your drivers... sometimes ever so slightly, like in my case, where I added a vendor number to a kext and the device started working.
OSX is sold by Apple as an *upgrade* to the software supplied with their hardware - this is the point people keep missing. It's an *upgrade* and requires an existing license, as does Windows XP *upgrade*, Office *upgrade* and so on. There's no car analogy - you need an existing license to legally make use of the upgrade, which Psystar does not have and cannot supply.
No no, the "upgrade" notion is just an assumption made by people who know Apple well. Nowhere in Apple's marketing materials does it say that OS X Leopard is an upgrade. In fact, in keynotes, Steve has bragged that every copy of OS X is the full version.
-Clive
There is an equally important legal issue that Psystar is doing. They are using a modified version of Mac OS for installation. It would be fun if Apple asked Psystar at the trial to install new of the box Mac OS X on an empty Psystar Open Computer without the use of any hacking tools.
On that note, while Psystar is in clear violation of stealing and altering Apple's IP, I don't think Apple has any valid case against EFiX.
What of the telecomm industry requirement that those who own cable plant lease it to competing service providers? This could sort-of be the same deal.
I guess the point that I'm trying to make, in a very round about way, is that yes the Mac OS is the best OS out there, but Apple's hardware is the same as everyone else's ? it just looks better.
And since Apple in competing in the computer hardware market, how do they make their hardware "better" (besides looks) than that of Dell, HP or Acer? They developed OSX for it and to differentiated from other venders computer hardware they call it a Mac. Would you deny HP, Dell or Acer the right to make their hardware "better" than their competitors. Would you force HP, Dell or Acer to give up any competitive edge they may have to their competitors.
So how can Apple claim that running the Mac OS on their hardware offers a superior experience? Everybody knows that at the end of the day it's just down to a question of driver support?
They don't. They claim that running OSX is a superior experience over Windows.
It seems to me that the only reason that Apple is able to keep selling so much of their hardware is because the best OS out there is deliberately tethered to Apple hardware?
Bravo...you're not as clueless it first seems.
It not so much a question of who can sell Mac OS to whom, but rather whether Apple should be allowed to continue a situation where if you want to run the Mac OS you also have to purchase their hardware (even although their hardware is exactly the same as everybody elses, as offers no benefits).
If Apple hardware was different, and did offer a better experience, then fair enough. But otherwise, it is starting to look fishy to me...
And if Apple let anybody use their OSX then what will make a Mac better than anyone else's computer hardware? Apple competes in the computer hardware market and do not make most of the hardware in their Macs. They put a lot of design effort into it but in the end it's made by the same manufacturers that make all others computer hardware. Apple hardware has a competitive edge over their competitors because of OSX. (Even you stated that there is very little difference in hardware.) So do you really think that it's fair that Apple should have to give up their competitive edge? It's not as though Apple is using some third party OS and is forcing that third party to not license that OS to their competitors. OSX belongs to Apple. Apple spent 400 million dollars to acquire it's basic framework from NeXT and spent billions of dollars more to develop it to where it is now. OSX is what makes a Mac experience better that their competitors in the computer hardware market. Apple competitors may have the same access to the hardware Apple uses but they don't have access to OSX. And Apple has every right to keep it that way.
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.
Actually, I think they should just start doing their major update releases through iTunes Appstore or something along that lines. Make it easy to burn a boot DVD and have it tied to your computer. It would cut down on the long lines for people waiting for the latest and greatest. I would certainly go for it. Of course, if you had dial-up you would probably most rather wait in those lines.