Psystar wins one, loses one in defense against Apple
Psystar has finally scored a victory in its defense against Apple as the two sides prepare for trial, but that win also comes at a small cost for the Mac clone maker.
According to an 8-page order filed late last week, Florida-based Psystar will be permitted to answer Apple's lawsuit by using copyright misuse in its defense. Apple sued Psystar last July, and the Open Computer maker has been tinkering with its counterclaims since August.
Psystar previously claimed anti-trust violations, but Judge William Alsup threw that argument out.
Now, the company alleges Apple "wrongfully extended the scope of its Mac OS copyright" through the End User License Agreement, which requires installation only on Apple computers and causes the OS to malfunction if disobeyed.
After Apple requested to have that argument thrown out as well, Psystar restated its case in a 17-page filing that the judge's most recent order responds to.
The defendants accuse Apple of improperly making claims under the Digital Millennium Copyright Act (DMCA), extending the Mac OS copyright into the computer hardware market by "intimidating potential competitors."
Apple argued Psystar's counterclaim is invalid because copyright misuse can only be alleged as a defense, not a counterclaim, but Judge Alsup disagreed.
"This order is unconvinced, however, that misuse may never be asserted as a counterclaim for declaratory relief," the judge wrote. "PsyStar may well have a legitimate interest in establishing misuse independent of Apple's claim against it, for example, to clarify the risks it confronts by marketing the products at issue in this case or others it may wish to develop."
Judge Alsup added that if misuse is proven, it would "bar enforcement" against Psystar and other potential defendants with similar interests. Apple had cited previous cases where copyright misuse could only be used as a defense; however, Alsup ruled in this particular case, misuse is in play because Apple has itself asserted copyright claims against the defendant.
Just because Apple's interpretation of its rights could end up being correct doesn't prevent Psystar from arguing otherwise, the judge said.
"Apple responds that it is within its rights to determine whether, how or by whom its software is reproduced and how it is to be licensed, distributed or used," wrote Judge Alsup. "This may ultimately prove to be true. Apple, however, identifies no reason to bar the claims as a matter of law at the pleading stage. This order declines to find the claims futile."
However, the ruling wasn't a total loss for Apple. The judge denied a part of Psystar's proposed counterclaim based on state unfair competition laws.
"[Psystar] fails to explain, however, how this conduct constitutes harm to competition or a violation of the spirit of the antitrust laws," he wrote. "[Tying copyrights to computer hardware] requires monopolization. PsyStar has identified none."
The judge instructed both parties to take discovery and prepare themselves for trial and/or summary judgment.
The trial is scheduled to begin on Nov. 9.
According to an 8-page order filed late last week, Florida-based Psystar will be permitted to answer Apple's lawsuit by using copyright misuse in its defense. Apple sued Psystar last July, and the Open Computer maker has been tinkering with its counterclaims since August.
Psystar previously claimed anti-trust violations, but Judge William Alsup threw that argument out.
Now, the company alleges Apple "wrongfully extended the scope of its Mac OS copyright" through the End User License Agreement, which requires installation only on Apple computers and causes the OS to malfunction if disobeyed.
After Apple requested to have that argument thrown out as well, Psystar restated its case in a 17-page filing that the judge's most recent order responds to.
The defendants accuse Apple of improperly making claims under the Digital Millennium Copyright Act (DMCA), extending the Mac OS copyright into the computer hardware market by "intimidating potential competitors."
Apple argued Psystar's counterclaim is invalid because copyright misuse can only be alleged as a defense, not a counterclaim, but Judge Alsup disagreed.
"This order is unconvinced, however, that misuse may never be asserted as a counterclaim for declaratory relief," the judge wrote. "PsyStar may well have a legitimate interest in establishing misuse independent of Apple's claim against it, for example, to clarify the risks it confronts by marketing the products at issue in this case or others it may wish to develop."
Judge Alsup added that if misuse is proven, it would "bar enforcement" against Psystar and other potential defendants with similar interests. Apple had cited previous cases where copyright misuse could only be used as a defense; however, Alsup ruled in this particular case, misuse is in play because Apple has itself asserted copyright claims against the defendant.
Just because Apple's interpretation of its rights could end up being correct doesn't prevent Psystar from arguing otherwise, the judge said.
"Apple responds that it is within its rights to determine whether, how or by whom its software is reproduced and how it is to be licensed, distributed or used," wrote Judge Alsup. "This may ultimately prove to be true. Apple, however, identifies no reason to bar the claims as a matter of law at the pleading stage. This order declines to find the claims futile."
However, the ruling wasn't a total loss for Apple. The judge denied a part of Psystar's proposed counterclaim based on state unfair competition laws.
"[Psystar] fails to explain, however, how this conduct constitutes harm to competition or a violation of the spirit of the antitrust laws," he wrote. "[Tying copyrights to computer hardware] requires monopolization. PsyStar has identified none."
The judge instructed both parties to take discovery and prepare themselves for trial and/or summary judgment.
The trial is scheduled to begin on Nov. 9.
Comments
A November trial. Which means months of litigation and "discovery" expense. Not many small companies can afford that. I wonder who is helping out Psystar.
don't care.... good for them.
One other thing worth mentioning is that software the Pystar is using to allow to run MacOS X on non Apple hardware was explicitly denied to commercial ventures, by the OSx86 team.
It can target companies who attempt to pre-load and resell OSX vs consumers who build their own. Could someone tell me if it is possible to basically rewrite the licensing for that and add rules that prohibit the use of OSX especially since they have trademarked OS X without the apple consent or being installed by none Apple partners
I fear it not because I have a hackintosh, but because this is exactly a DRM practice I don't like. But if Apple has no chance to do it in another way I bet they'll be happy to create such a chip (with a ton of patents surrounding it) and really tie their OS to their computers. PsyStar or any other clone manufacturer could then no longer claim that Apple isn't "explicitly" prohibiting the installation and therefore they would no longer be in a gray zone...
Apple will come out with such a solution if this litigation continues (they might regardless of the result they expect, just as a security measure for future attemps to install Mac OSX on other machines).
don't care.... good for them.
It will be bad for everyone if Psystar wins, and they still won't get to actually produce the clones even so. People who want them to win are either dumb or just want to "stick it to Apple" because either way the clones will still be stopped.
Apple has lots of other options besides just asking people to abide by their agreements. If Apple loses the case to Psystar there are many more draconian options available to them and they will take them. This means Psystar loses (in the sense of not being able to make clones), even if they win, but we also all lose because the OS will be locked down, more expensive, etc.
Psystar vs. Apple is petulant baby stuff. It's not a "noble fight" nor even anything to do with selling clones IMO. It's just a big "screw you" to Apple by a bunch of folks with a giant chip on their shoulder.
I fear this litigation will increase the DRM Apple applies to its OS and software in general. I fear the moment in which a chip on the motherboard will be required to install the OS from Apple on Apple's computer. Apple now has the capacity to design such a chip.
I fear it not because I have a hackintosh, but because this is exactly a DRM practice I don't like. But if Apple has no chance to do it in another way I bet they'll be happy to create such a chip (with a ton of patents surrounding it) and really tie their OS to their computers. PsyStar or any other clone manufacturer could then no longer claim that Apple isn't "explicitly" prohibiting the installation and therefore they would no longer be in a gray zone...
Apple will come out with such a solution if this litigation continues (they might regardless of the result they expect, just as a security measure for future attemps to install Mac OSX on other machines).
I actually would be in support of that, I know that it sounds bad and many people would disagree with me, however I am in favor of open standards, in which you don't prohibit the method of sharing information. I am not in favor or taking someone design or invention and forcing them to allow installation on any and everything,
I think that when the mac platform was suffering apple suffered through and put the work into the OS and the platforms on which they were installed. This resulted in a better system and business model for them. I don't think that should be taken away from them. I am in favor of apple using their chip purchase to create a custom chip with multiple patents and a preventing this type of install. There are other alternatives to OS X, use Linux or Windows, however this is their model. I don't see windows being sold with Source Code. Apple should be allowed to protect their investment, they make the OS for the hardware.
I fear this litigation will increase the DRM Apple applies to its OS and software in general. I fear the moment in which a chip on the motherboard will be required to install the OS from Apple on Apple's computer. Apple now has the capacity to design such a chip.
I fear it not because I have a hackintosh, but because this is exactly a DRM practice I don't like. But if Apple has no chance to do it in another way I bet they'll be happy to create such a chip (with a ton of patents surrounding it) and really tie their OS to their computers. PsyStar or any other clone manufacturer could then no longer claim that Apple isn't "explicitly" prohibiting the installation and therefore they would no longer be in a gray zone...
Apple will come out with such a solution if this litigation continues (they might regardless of the result they expect, just as a security measure for future attemps to install Mac OSX on other machines).
Except it will be cracked. Like all other DRM.
I think Apple are doing this to protect brand image, in substantial part. Other companies selling OS X machines are diluting the brand. It's the whole marriage of hardware and software that Apple so vehemently believes in (to their immense credit, when they're not actively delaying introduction of hardware we want).
They shouldn't care if users on their own accord (i.e. not Psystar) are using OS X on other platforms, but they should care if companies are trying to do it. This is a position that seems supported by their stream of litigation.
"Apple responds that it is within its rights to determine whether, how or by whom its software is reproduced and how it is to be licensed, distributed or used," wrote Judge Alsup. "This may ultimately prove to be true. Apple, however, identifies no reason to bar the claims as a matter of law at the pleading stage. This order declines to find the claims futile."
It looks to me that the judge is doing the right thing by giving Psystar a fighting chance within the law.
If Apple loses this could be bad thing for them, it could open the door for the likes of Dell to request a license for OSX for Dell computer. We know Dell wanted to use it verse windows, since windows gives PC hardware a bad name.
It will be bad for everyone if Psystar wins, and they still won't get to actually produce the clones even so. People who want them to win are either dumb or just want to "stick it to Apple" because either way the clones will still be stopped.
Apple has lots of other options besides just asking people to abide by their agreements. If Apple loses the case to Psystar there are many more draconian options available to them and they will take them. This means Psystar loses (in the sense of not being able to make clones), even if they win, but we also all lose because the OS will be locked down, more expensive, etc.
Psystar vs. Apple is petulant baby stuff. It's not a "noble fight" nor even anything to do with selling clones IMO. It's just a big "screw you" to Apple by a bunch of folks with a giant chip on their shoulder.
Why so few see this is beyond me. All Apple has to do to push Psystar out of business is a simple increase of the Mac OS X upgrade price to Windows-like prices and/or make the retail discs upgrade 'only', not full installs. The latter would keep the price down for current Mac users but would come with the added hassle of needing a previous version of Mac OS X installed first. None of these are good for the consumer and, as you stated, Psystar still loses.
don't care.... good for them.
good for them what them hell. Even if i didnt like apple at all I would still be pissed off by Psystar. When you make something, in this instance software, GOOD or BAD, for your devices, so Macs. Who the FCUK has the right to come in and take your shit and be lik e well your being a bully keeping it to yourself and heres how I can prove it. We live on earth not OPENSOURCE world. If Microsoft didnt inspire so many companies that its a right of passage to have shitty versions of software not crafted for the specific device its made we wouldnt be here today
People who want them to win are either dumb or just want to "stick it to Apple" ....
Yep. That about sums up Archipellago.
http://apple.slashdot.org/article.pl.../02/09/1450235