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V Plamondon

How Would You Defend Psystar

Do You Think Psystar Can Win?  

105 members have voted

  1. 1. Do You Think Psystar Can Win?

    • Yes
      23
    • No
      48
    • Depends on how they defend themselves.
      34
  2. 2. If Psystar defends itself poorly, do you think anyone else should try to challenge Apple?

    • Yes
      64
    • No
      41

41 posts in this topic

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

 

apple_filing.pdf

 

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.

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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... .. .. :censored2:

 

[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.

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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.

 

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... .. .. :censored2:

 

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).

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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.
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...

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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!'

 

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 {censored} 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..

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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.

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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.

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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...

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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.

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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..

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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

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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 :rolleyes:

 

 

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

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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.

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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.

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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.

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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.

 

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.

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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.

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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: $

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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.

 

Please read the following carefully

 

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE APPLE SOFTWARE. BY USING THE APPLE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE APPLE SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND. IF THE APPLE SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK "DISAGREE/DECLINE". FOR APPLE SOFTWARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE IN ORDER TO OBTAIN A REFUND.

 

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).

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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

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