This is Apple Inc.'s complaint against Psystar Corporation;

Click to view attachment

My idea of a response is to iterate that Psystar has done nothing wrong legally, and make it clear to Apple, produce legit cause and legit evidence or face a lawsuit after the conclusion of this one for malicious prosecution.

My only reaction to your defence is that it's a bit of a catch-22: Although Apple may indeed be pursuing this to cause financial harm, this defence would be extremely expensive to pursue (requiring first the full case going to court & then the counter-suit) and so... .. ..

[edit] reading through the Apple filing made me laugh.. So much of it reads as classic mac-evangelism, which I guess is to establish that apple has a reputation to uphold. Point 15 is even funnier, citing that psystar's are bad computers... Is there any law that says you can't sell junk? It feels like they are looking to claim that psystar make apple look bad, which is pretty bizarre.. psystar manage to look bad all on their own.

If Psystar really wants to stick it to Apple, they can declare that the Mac OS X License Agreement does not apply to them as they do not use Mac OS X, they just preinstall it.

Then they just follow up by saying that if Apple contends that the Mac OS X License Agreement applies to the purchaser, then Apple must comply with the Mac OS X License Agreement and refund the purchaser for his/her software AND hardware ACCORDING TO THE MAC OS X LICENSE AGREEMENT.

If Apple does not comply, Apple has breached the Mac OS X License Agreement, and the Mac OS X License Agreement has zero force and effect against that particular purchaser (and he can use Mac OS X anyway he/she wants).

Before dealing with Psystar, Apple should have taken a purchaser to court in order to establish that purchaser's are breaching the Mac OS X License Agreement. Not only should they have taken a purchaser to court, they should have gone after at least one pirate and prosecute them to the fullest extent of the law.

Now Psystar can claim that not only have they done nothing wrong, but that Apple has engaged in Selective Prosecution (Apple has singled out Psystar for prosecution, but has no plans of prosecuting any actual pirates or end users).

By not addressing this issue first, Apple has made it clear that it will not prosecute customers (or software pirates) for violating the Mac OS X License Agreement, causing it to have no force and effect for customers.



It could be expensive, but if Psystar's legal counsel know what they are doing, it shouldn't be.

If Psystar responds with a good defense, it is business as usual until the action moves forward.

The only way Apple can harm Psystar is by applying for an injunction, and if Psystar has an excellent defense, then Apple will not be granted an injunction because they have to demonstrate they are likely to win the case and the defendant is causing them harm (they have to support their claim with some sort of evidence).

Psystar just has to create an excellent defense and discredit Apple's evidence as it is presented.

Of course their is always the possibility of their lawyers deciding to challenge the validity of Apple's EULA and then who knows what the outcome will be. The strongest challenge Psystar can make against the EULA is to contend it doesn't apply to them. Of course, if they outright challenge the EULA, then it becomes a matter of whether Apple is breaking any laws with their EULA. It is nearly impossible for Apple to prove wrongdoing by Psystar if the EULA does not apply to Psystar, and it is nearly impossible for Psystar to prove wrongdoing by Apple if they challenge the EULA. So which do you think is the better bet?

Also, there is always the possibility that Psystar's legal counsel does not know what they are doing when it comes to these issues. Remember that the copyright, trademark and licensing lawyers work for the big guys (Apple) and not the little guys (Psystar).

That made me laugh, thanks!

I would think Apple would want to pull out all the stops to set an example. I think if other companies like Psystar spring up, it would be a good idea not to front page them so as to avoid being seen as the finger that is pointing potential buyers toward them. Maybe even put a ban on threads about them and others? We're none of us legal experts so I wonder how much mileage there is in addressing the question. Wouldn't the best legal advice to people wanting to set up similar companies, be: Don't try this at home, folks! Don't turn your garage into a factory or you might have to sell the family car and family home and... and...

Why would we want to ban people talking about a company and what they sell? Some say all publicity is good publicity, but when the verdict seems unanimous that psystar build junk and you're far better off with a DIY solution, I rather doubt that. Their market appears to be those who want something for nothing, this never works out. Pay with your $$ for a mac or with your time & effort for a hackintosh. Your $$ buy you apple support & satisfaction. Your time & effort buy you the knowledge to tackle the technical challenges of your homebuilt when it goes off up shit creek. Buy a prebuilt clone, and you've paid less for a machine that will leave you without a paddle. I believe the cloners will turn out to be self-limiting, as their profits will eternally be squeezed between customers comparing the price to pc's from other vendors, and the cost of updating & supporting the machines. How much extra will people pay for a leopard install with no real guarantee?

I'd think the best advice to people wanting to set up similar companies would be "be prepared" know the law where you are, and expect a legal battle. I'm still waiting for this kind of thing to happen in Europe, where Apple's case for stopping someone using legitimately purchased software in whatever manner they choose is far weaker.

Another aspect which keeps trickling through my mind is when does the infringement actually occur: hypothetically, say I was to start wobblebottom computers inc. and sell the bottomwobbler computer, which coincidentally works 100% with retail leopard (which I also sell) and a boot .iso (which I happen to have available for download). The user has to perform a simple setup procedure & there: a wobblebottomtosh! There is plenty of precedent for selling things in kit form that are illegal when assembled. I would post a notice on the site saying "on no account download wblbtm.iso, burn to disc, boot, swap with leopard disc, complete install, reboot & run the post-install script, as this might be illegal"

The grey areas, especially in countries where the EULA is not considered valid, appear to be getting ever wider..
<here endeth the morning coffee ramble>

OK, here's the issue. Psystar is intentionally violating a EULA which forces you to click through an install process to accept it. Whether or not you like what they do, courts have upheld this kind of EULA. Plain and simple, Psystar is royally screwed.

How would I defend Psystar...

DON'T DO IT! THEY HAVE DECENT LOOKING CASES FOR THEIR COMPUTERS!

Psystar has no case whatsoever. They clearly infringed on trademark, and stole Apple's property which they had no right to use for commercial sale.

Apple has a solid case, there's no doubt in my mind they will win against Psystar.

Not case as in court, but the actual case for their computer...>_>(Don't know if you're refering to my post or not)

If I was Psystar, I would just sell the boxes and advertise them as being compatible with the major operating systems out there. Leave it to the buyer to install whatever OS they want BUT also state in bold that the hardware is compatible with OSX - but don't ask Psystar how it can be done... That's the only way they can get out of this mess and continue to sell hardware...

BUT... if they did that, and a lot of people started buying Psystar boxes and coming here to learn how to install OSX, Apple might then start coming after this website and the developers...

Agreed. Just like when you sell something on this forum. It can be "Mac OS X Ready" but it can't include it advertised pre-installed because that's illegal (According to Steve). A lot of people out there don't want to hit or miss with ordering hardware online, finding out that it doesn't work right, and having to return it in hopes of getting the right combo of hardware, custom drivers, etc. for the perfect Hackintosh. Some people want the spoon, and Psystar could've been that spoon. It doesn't take a "leet h4x0r" to figure public torrents out.

Well since I never see any one bring this up when a discussion of the EULA happens here is my 2¢. Apple installs by default GPL software intended to be used on OS X Intel hardware now you can do anything you want with GPL software as long as you do not re-distribute it. Once you have re-distributed it then you have to give everyone the right to do as they please with it you cannot limit their use of it by locking it to only your hardware like say Intel or AMD taking a piece of GPL software then releasing and saying you can only run it on their processors it can't be done. So the main point is that by using/distributing the GPL software they have invalidated their own EULA by placing the Apple labeled only clause in their license agreement and this would be a good argument for Pystar to make in court..

Many parts of Apple's system, like, duh duh duh duh duhhhhhhhhhhhhhhhh, aqua, are not under the GPL.

So what does that have to do with the price of tea in china? Apple distributes the GPL software that is INSTALLED at the same time the OS is and restricts your use of the GPL software by their EULA by its very nature the GPL states you cannot put further restrictions on a piece of GPL software other than is already in the GPL version it was released under of which there is certainly no restriction on the type of hardware you can use GPL software on. One more thing on the use of GPL software in OS X is the installer of most I have used they require you to agree to the GPL which is not required you do not have to agree to the GPL to use GPL software as an end user nit picking I know but it bothers me. Another one it appears our friends in the EU actually have a case of illegal conduct on Apple's part as their laws forbid further restriction on use of a product you buy according to this comment I found a little while ago if so they can sue Apple for that clause in the agreement.

http://blogs.guardian.co.uk/technology/200...comment-1048710

I think.. pystar should just give up. Their already trying to sell themselves aren't they?

psystar did it all wrong

they stole macosx to apple

they stole efi to netkas

defend them ? is that a joke ?

They r stupid & totaly {censored}ed up ! Who bet they lost the game ? I bet a mac


I would close my door, run away, take a plane to a far far away country where apple can t find me

what's to defend? {censored} 'em ...

We will have to thanks companies like psystar if one day OsX will be no longer "so-easy" to install on hackintosh..
For many users of the forum, osx86 is like a demo/trial platform to switch to a real Apple hw one day. So, on it's way, this could be "marketing-friendly" for Apple.

But companies that stole to gain profits like psystar, shuld just be burned out.

Just my opinion.

It has occurred to me that people widely believe that Psystar is pirating Mac OS X, and few people realize that Psystar is purchasing legitimate retail copies of Mac OS X, which is widely and publicly available.

Before Apple can allege that the Mac OS X License Agreement applies to Psystar, they must prove that their License Agreement not only applies to end users (customers), but also applies to a third party such as Psystar (unlikely).

If Apple cannot prove that Psystar is bound to the Mac OS X License Agreement, then first-sale doctrine applies and Apple cannot place restrictions on the resale of Mac OS X.

Simple as - Pystar did wrong. Thats all that can be said. Although there is a new ferm that are doing a very similar thing... i can't believe that companies are actually doing this.

It is a click through license agreement and courts have upheld this kinds of EULA's. You have the chance to read through it before installing.

For a contract which is what these EULAs are claimed to be you MUST read and sign before purchase for it to have any effect, even then the contract cannot take away any rights you already have under existing law this makes it null and void or at the very least those conditions that do are.

Apple will win.

Haven't you ever heard that old saying, "He who has the gold makes the rules?" This is America and that has never been more true.

Did Psystar do anything wrong? Sure. Has Apple done things wrong before? Absolutely. At the end of the day it all comes down to this interesting looking symbol: $

Please read the following carefully



This portion clearly defines how the Mac OS X License Agreement is entered into by the user. By using the product the end user is bound to the license agreement. Before Apple can claim Psystar is bound by the Mac OS X License Agreement, Apple must establish that Psystar is in fact using their product.

Legal terms and conditions that are not clear usually are difficult to enforce in court, but in this case it is very clear. "Using" the software binds the user to the License Agreement. Anyone who has used a non Apple installation disk knows that many have been mastered without inclusion of the Mac OS X License Agreement.

It is a simple matter to bypass the License Agreement by a third party like Psystar when pre-installing Mac OS X (for example, using pre-installed disk images). If Apple cannot establish that Psystar "uses" Mac OS X, the Mac OS X License Agreement will not have any force and effect against Psystar. Alternatevily, if Psystar accepts or agrees that the Mac OS X License Agreement applies, their only option is to argue that the Mac OS X License Agreement is illegal in some way (very unlikely).

Seriously, I wouldn't defend those little cheater. The only thing I can do on their honnor is to throw a molotov cocktail on the court house. That's it, that's all! And you just close the case LOL

money talk...)

Honestly if Microsoft tried to tie their OS to a single computer the courts would have eaten them alive. Why is Apple allowed to do this? If memory serves correctly Microsoft and IBM tried this back in the heyday tried to become one company and the courts shredded them to tiny bits leaving Bill and his 9 cronies. Microsoft proved something, just sell the OS and don't bother with hardware. Leave it up to the user to "choose". Now with Vista they are shooting themselves in the foot and it is why Apple isn't #1 and why Linux seems to be gaining quicker than wildfire. True Apple is gaining marketshare and they have 10%, but I would bet a Mac that Linux has more than that as it is free legal and well free. Microsoft is afraid of Linux and not Apple... Why? Why is Microsoft fighting them and not Apple? Simple. Linux is free and you can see Microsoft signing Licenses with big named companies to "kill the threat". Same thing Apple did way years yonder back. Linux undermines everything Microsoft and Apple holds true. Something they didn't bank on. Now Psystar has done something bold. I can see Microsoft backing them up. If Psystar loses this battle the only other option for people is an OSS OS. Apple will hold their fanbase and lose a few but who cares about the 20 users that boycott them. Microsoft actually stands to lose really big here if Psystar loses because this will make headlines and more talk and mindshare of Linux will be spread through the market. I would bet a Mac that Linux fanboys will use this like they did with Vista. There are no Windows fanboys that I know of anyway. Linux and Mac will rein and Microsoft will end up royally hurting here. Slackintosh FTW!:-P

Because the computing world is a choice. You can choose to use Windows, Mac OS, or Linux. Don't get confused. You don't have to use the Mac OS, Windows, or Linux. Nobody is forcing you to use the Mac OS, Windows, or Linux. It's your own personal choice.

This is Apple's OS.

If you don't like it, go play in traffic.

Its not Apples OS they have a lot of other peoples code in it as well if they strip that code out the thing is useless.

So what does that have to do with the price of tea in China?? The point is OS X without the *BSD and GPL software included will not boot on its own and not all the Apple apologists in the world can gloss over that plain simple fact...

Why do more people want to run OS X over other BSD variants?
Obviously Apple has added something that is marketable and adds significant value to many, hence it's "product" which is different than other BSDs.


Who suggested it could and why does it matter?
They have fulfilled the requirements of the GPL and BSD licenses for those software packages.
They can still challenge infringements on their proprietary parts of the OS and many would suggest it's those parts that really make OS X what it is.

It matters because of the attitude of the person I responded too saying its Apples OS too bad, well Apple did not create all of it other people did and they certainly cannot do whatever they please with the GPL portions of it the BSD well that's another matter as long as the copyright notice is intact their good to go.


BSD yes but they have no right to restrict my or your use of GPL software by saying you cannot use what is included and installed by default on every OS X install out there limited only to their hardware in the EULA they provide. That is like Intel or AMD taking GPL software then distributing it saying you can only run it on their processors. For the last part that is all OS X is a BSD kernel with the GNU user space and Apple parts put on top of it for the GUI among other things, of course Apple has the rights to the proprietary parts of it they wrote anything else that falls under the BSD/GPL anyone can do with it as they please as long as they don't distribute in the case of the GPL BSD doesn't matter as long as the copyright notice is intact upon distribution GPL you need to give back the changes when distributing and not place any further restrictions on the people you distribute the software too and locking it to the hardware is a restriction of its use..

Apple apologists or not, attitudes by OS X users really doesn't matter to the legality.

The problem is interpretation of the EULA.
From your statement above it's clear you feel that the EULA is stating that you can not change, can not install, can not wherever any of the GPL parts of OS X.
My guess would be in a legal challenge to this Apple would state that they are referring to "their" parts. They do provide the source to GPL parts as required by its license also.
So although GPL parts are included in the OS X, they are essentially protecting their proprietary parts as you can download code and source for Darwin which is essentially OS X without Aqua.

Maybe Apple loses but I can see them making "corrections" in either licensing, hardware or both that could render the verdict pointless anyways.
Only include OS X with computers and as updates and the supply chain for 3rd party builders in gone.

Its not interpretation at all the EULA clearly states you can only use the software included on the install disk on Apple labeled hardware this places a restriction on your use of all the software that is included, installed and intended to be used with OS X on said disk.



Which they cannot place further restrictions on its use and by telling you it can only be used on Apple hardware this is one.



Still can't protect their own by violating another copyright.



They would need to strip out all GPL code then anyone wanting say a bash shell would need to download/compile/install from its site if Apple distributes they have to give you the same rights they had when they got the software and there certainly is nothing in the GPL that locks software to specific hardware.

Edit: In case you still have not got the point I am making.



This part of the GPL FAQ clearly states Apple has to have accepted the terms of the GPL by distributing its software. This below shows in the case of bash and other GPL software included shows they have distributed a binary intended to run on the OS X system.



See the copyright notice there so anyone wishing to use this binary they have distributed needs to be running OS X to do so while exercising my rights under the GPL Apple cannot place any further restrictions on my use other than is in the GPL for me using it this means I can run it on any damn hardware I choose to do so regardless of what Apple's EULA states.

Edit2: Just in case you don't know who the Free Software Foundation is and the license used for Bash here is the first page I found stating it.

http://www.absoluteastronomy.com/topics/Bash

Makes for an interesting that 'Apple filing'. All this talk about Trademark infringment and copyright blah blah only matter if Pystar have actually used the marks in question. what will matter to Pystar is the use of the OS X logo in some of there product information listings, a clear infrigement of Apples copyright. Trademark only relates to the use of the Apple name and Mac name. I can not see either directly in use. It can be questioned if OpenMac is actually an infrigement on Apples's trademarked name 'Mac'.

Apple's main argument though is the breaking of the 'Software Licence Agreement'. Make a note that nowhere in the court papers does is mention the words 'End User License Agreement'. Wording can make all the difference when it goes to court. As for the license, Apple will have to prove that the 'Software License Agreement' that accompanies the DVD applies to a third party computer supplier business. Pystar will contend that they purchase legal copies of OS X and without modification, install it onto non-apple hardware. Here is where Pystar will say that even though they purchase legal copies of OS X whic is helping Apples profits, that Apple also want to control what hardware the legal copy of OS X can be installed on which is anti-competition behaviour espically when you consider Apple now using intel motherboards (or alternatively named Apple motherboards with intel chips on them).

It would appear there are a few holes in Apple's court case and as others have pointed out, just needs a good defense team on Pystar part.

Pretty soon you'll have "Genuine Mac OSX Advantage"

From my point of view, there's plenty of holes to be exploited...

Whether any hold up in court is a different story, but the more you throw out there the more likely something is to stick.

Here's one they should use:

IF this Operating System is intended to be used only on hardware provided by Apple, then why is it available to anyone willing to pay for it ? If it's only for use on Apple hardware then it should only come with Apple hardware.

If anyone can point out other examples please do, but as far as I know, no other company that ties software to hardware does this. And there are plenty of companies that tie software to hardware.

But you can't go to the store and purchase the OS for an Xbox 360, or a PS3, or your DVR, etc, etc.
Best buy doesn't carry AIX.

Of course if that did work, Apple would just work to close that loophole and there would probably be some crappy consequences, how crappy would largely depend on how much of an inconvenience Mac users are really prepared to deal with though.

I'm on your side but for argument's sake I'm going to answer this question:

Apple has this whole thing about "trust". You know how they sell iLife family packs and iLife for a single user, yet there's no serial number or anything on the single user one so you can just install it on as many computers as you want? I guess it's the same idea - they just trust you not to frig around with it. Also, if people want to upgrade from Tiger->Leopard or something, where are they going to get Leopard? It's necessary to sell the O/Ss seperately. I doubt they would create some sort of scanning process to confirm whether you have a real mac or not, it's too much of a hassle. And plus, what if you're buying it as a gift for your friend?

Oh no they don't. Come on, seriously? I know you don't really buy that "Apple trusts you" stuff.

They know from experience that anti-piracy schemes don't usually work, other than to irritate legitimate users, so why bother. Also, before they decided to run their OS on what amounts to a really nice PC this was much less of a concern for them.

BTW have you taken a look at how much of their software "phones home", sure most of it is benign traffic that makes your "experience" better but doesn't mean it all is or will be. I still don't see any really good reason for things like Calculator to connect to their servers, I'm sure they have some logical explanation, but I think I'll pass on that.

In any case, I completely get where you're coming from, that's why I said if a defense like that did succeed there would be some crappy consequences.

My favorite is point 85. It's basically saying that Psystar marketed their computers specifically to hurt Apple's profits and company image.

No, they marketed their computers to make money.