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Psystar counter-sues Apple for anti-competitive business practices


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Source (CNET)

PALO ALTO, Calif.--Mac clone maker Psystar plans to file its answer to Apple's copyright infringement lawsuit Tuesday as well as a countersuit of its own, alleging that Apple engages in anticompetitive business practices. Miami-based Psystar, owned by Rudy Pedraza, will sue Apple under two federal laws designed to discourage monopolies and cartels, the Sherman Antitrust Act and the Clayton Antitrust Act, saying Apple's tying of the Mac OS to Apple-labeled hardware is "an anticompetitive restrain of trade," according to attorney Colby Springer of antitrust specialists Carr & Ferrell. Psystar is requesting that the court find Apple's EULA void, and is asking for unspecified damages.

 

Springer said his firm has not filed any suits with the Federal Trade Commission or any other government agencies.

 

The answer and countersuit will be filed Tuesday afternoon in U.S. District Court for Northern California.

 

Pedraza attended a press conference his lawyers called to present how Psystar will defend its its OpenComputer Mac clone, which has been for sale online since April.

 

Psystar's attorneys are calling Apple's allegations of Psystar's copyright infringement "misinformed and mischaracterized." Psystar argues that its OpenComputer product is shipped with a fully licensed, unmodified copy of Mac OS X, and that the company has simply "leveraged open source-licensed code including Apple's OS" to enable a PC to run the Mac operating system.

 

Pedraza says he wants to make Apple's Mac OS "more accessible" by offering it on less expensive hardware than Apple.

 

"My goal is to provide an alternative, not to free the Mac OS," said Pedraza. "What we want to do is to provide an alternative, an option...It's not that people don't want to use Mac OS, many people are open to the idea, but they're not used to spending an exorbitant amount of money on something that is essentially generic hardware."

 

Apple will have 30 days to respond to Pystar's counter claim, and so far has declined to comment on the case.

 

Other legal experts say Psystar faces a tough legal challenge in proving Apple has engaged in antitrust behavior by loading its software on its own hardware and thereby allegedly harming consumers and competitors. Psystar's ability to prevail on the issue of having the latitude to load Apple's OS on its own hardware, given it has a licensing agreement with the company, may prove an easier road to hoe, legal experts note.

 

A newcomer to the PC scene, Psystar caused a stir when it first went online selling white box Macs earlier this year. The site went down hours after it opened for business because the company was overwhelmed with orders for the OpenComputer, originally called the OpenMac, which was then changed to its current name. And the site went down several more times as its payment-processing company pulled its services from the Psystar site. Psystar managed to stay shrouded in a bit of mystery for a while, until intrepid gadget blog readers joined the press in fleshing out some details about the company.

 

Psystar eventually got back online with a new payment-processing service, and it continues to take orders for the OpenComputer and OpenPro Computer. When Apple finally did file suit against Psystar in July, it surprised nearly no one--except perhaps Pedraza. He said he had no contact with Apple before legal papers were filed against his company. Customarily, there is some sort of communication between companies before lawsuits are filed.

 

For now, Pedraza says it will be "business as usual" at company headquarters. Though he said there was a "slight" downward dip in sales once Apple filed its suit, he plans to go ahead with making servers, and soon, a mobile product, which he said will be "like a notebook." But he refused to offer more detail.

 

More to come...

 

CNET News' Dawn Kawamoto contributed to this story.

Pretty big news for OSx86 perhaps as an outcome of this we will be fully 'legal' and not in violation of Apple's restrictive EULA. Rudy Pedraza is right on the money when he claims that people are open towards using OS 10, but don't want to pay Apple's ridiculous price premiums on normal (and often out of date) hardware. Personally I'm going to have to side with Psystar on this one as I feel that Apple's current EULA for Mac OS 10 is absurd: You pay $125 for software, and then can only install it on certain machines?

 

How do you guys think?


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In a nutshell, Psystar is going to have a hell of an uphill battle here. Apple makes the software, they determine how you use it. Pretty much every piece of software has a EULA, even if all it says is don't use this in critical scenarios (air traffic control, nuclear plants) and limitation of liability.

 

Meanwhile, Psystar blatantly breaks the EULA before challenging it in court, takes the work done here without any attribution or permission, and we're supposed to go "rah rah"? I don't think so.

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I find it ridiculous that if I buy Windows Vista, I can't use it on my PowerPC computers!

I find it ridiculous that if I buy electronics in the US, I can't use the same power adapter in the UK!

I find it ridiculous that if I buy a PS3 game, I can't use it on my Wii!

 

Getting my message yet?

 

 

Ahhh but in each case there is a fundamentally different architecture that means that each of those is not physically compatable.

 

PowerPC is not x86, never has been and never will be.

The two electronics systems are not directly compatible (differing line voltages). Having said that I CAN use my laptop power brick in the USA (it's multi voltage). All I need is a different cable.

Again, Wii's have a different architecture to PS3s.

 

Current Macs ARE x86 and are essentially PCs. The architecture inside them is the same. New PC motherboards even will have EFi.

 

Sorry, blown your argument apart.

 

I can see both Psystar's and Apple's argument on this. It's going to be an interesting case.

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Before anyone thinks this is a clear cut win for Apple, I suggest that copyright law supersedes any EULA. Copyright law has stipulations for fair use, and if the EULA restricts that too much, federal court may not uphold the terms of the EULA.

 

There is some precedent in this area. Data General vs Digidyne, who made Nova compatible machines, bought Data General's RDOS and used the combo to compete against Data General, who sued.

 

However Digidyne won that decision, even though the Data General EULA forbid use of RDOS on anything but Data General's NOVA machines, because it was determined that it violated copyright laws of fair use, and tying of software to the hardware. Size, monopoly status, or market size was not a factor in the decision, as it was solely a tying issue.

 

In any event, get out the popcorn, this is going to be interesting. Groklaw will be following this, and may have some interesting viewpoints. There are a number of lawyers on the Groklaw site, although they are not Apple's or Pystar's lawyer, so it's opinion only.

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So Apple's folly is that they let any joe-schmoe off the street who may or may not have a mac buy Apple software. If they make it so the total solution is only provided like a total solution, like Nokia, or Motorola, or PalmOS, or the software in my TI-83...

 

So here's what I think will end up happening. Apple will stop selling their software "retail" and will only sell their software online, where you have to enter a valid serial number for a compatible peice of hardware. Then you have to register after installation with your serial number, and your transaction number online. If things don't match up perfectly, or a system check shows your serial number is not the same as what you entered for the purchase, you're {censored}-outta-luck!

 

That way Apple will not be required to uphold anti-competitive laws reguarding the "fair-Use" of retail software.

 

I'm really not an Apple Fan-Boy I know this because I only own 1 real apple computer and one iPhone, but I have 7 PCs in my house!

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if they don't want to change their EULA of OS X, just go back to their crappy hardware and processor. I love OS X but I hate Mac, i would buy OS X only if I could upgrade my hardware freely, upgrade it anytime with anything i want with reasonable price.

 

after moving to intel mac users incresing from 2.5% to 4.3% in three years, eating Linux desktop share (1% today :thumbsup_anim: ). I predict after OS X using open hardware it could be 15% or even better eating a lot of windows market share, it would give more competition on O/S world, and customer will have a lot of benefit from that (just forget about linux, their O/Ses are {censored})

Completly agree with you on this.

iPoco

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@vidgameking: Do you really mean the statement when you say "I switch off my G4 so I can use my hackintosh?" Because I dont buy it... Sorry but I really dont buy it... The whole hackintosh is a product/result of Apple's absurd strict monopolistic ideas... Which has been failed long long years ago, along with IBM's strategy... PC is a general purpose machine, where people keep failing to understand, which has been confirmed many years ago which opened up IBM! and later crashed IBM to dusts in their PC segment...

 

Today Apple is using off-the-shelf OEM parts in their PCs no more closed or unique system which people are failing to see... You are using everything off-the-shelf and yet you dont let anyone else in... Label its software as APPLE-ONLY... Even laws are un-enforce-able if a situation arises to make its statement not-fair, or requires additional exceptions and/or changes...

 

If people were so satisfied and so obsessed and so in-love with apple-labeled-products, and so dont want apple's image not damaged, and these people are so-moral to the level not using their original macs when their hackintoshes are online, why and who on earth HACKINTOSH concept is created?

 

Last but not least, people are keep comparing wrong things to make their already wrong doing immoral behaviour look "RIGHT" from the beginning... People are keep comparing specific use devices to general purpose PCs... Today, also mobile devices like cell-phones, becoming more general use devices so their OSs... Windows CE, Linux variants including Android, and iPhone/iPod's modified OSX... Tomorrow cell-phones will be more like PCs (they are already now, but to certain extent) and we will argue about its statements... (In fact people are already doing it, see jailbreaking, unlocking, efforts... If Apple is doing so-right with their decision of controlling everything and charging like hell, why we have jailbreaks unlocks today?)

 

Wheter or not people like it, if Apple is left alone, and allowed to keep Mac and OS-X Platforms stricted, it will destroy OEMs... If MS didnt existed, I dont beleive Apple would allow more then 1-2 companies to make products for them and charge them whatever they want to, which people are failing to see the danger...

 

Apple itself gaining from MS's strategy to allow multiple OEMs from the beginning... If it was not MS, no one would be buying a MAC PC or individual components at the most affordable (most affordable does not apply to APPLE Labeled products in my opinion) prices possible... But Apple itself benefiting from the market place MS created! It can easily pick whatever it wants.)

 

Also please stop making comments like apple should charge whatever they want... Because they make nice aluminum cases for $1500 extra cost? I doubt even it costs $50 for the case... It is a marketing strategy to brain-wash people! Dont beleive me? Go take some marketing/business class... Corps are spending billions of $$$ for marketing their image... Apple has done well job with its fan base, and its hypes...

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Given the extreme n00b factor, I am not at all sure that describing "OS X" as "OS 10" is good idea. Furthemore, as we have removed the "Mac" requirement from OS X, maybe we should just call OS X... um... "OS X" (I know I'm crazy... ).

 

Here's the name of the latest version. Just for you :unsure:

 

Apple Mac OS X.V.IV

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@Hagar: Do you really mean the statement when you say "I switch off my G4 so I can use my hackintosh?" Because I dont buy it... Sorry but I really dont buy it...

 

What on earth are you talking about? Did I say this somewhere? I'm just concerned that I'm somehow being mis-quoted. I don't even have a G4...

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i think everyone is missing the point that this is about the lawsuit... which is about legal jargon... not about whether it's good or bad for apple, insanelymac, hackintoshes, microsoft, intel, amd, dell, asus... whatever...

 

 

ok thx buh bye...

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What on earth are you talking about? Did I say this somewhere? I'm just concerned that I'm somehow being mis-quoted. I don't even have a G4...

 

 

my bad :( wrong quote name :) caught up in wrong person :)

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Meh, I think Apple EULA is going to stand legal, and everything will go back to the way it should be. If not, next people will be trying to install the iPod OS on their Zunes. :( I can't really see how Apple is being anti-competitive. They don't have close to majority market share. Besides I think it's anticompetitive that no one has answered OSX with something better. Get coding people! :)

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Meh, I think Apple EULA is going to stand legal, and everything will go back to the way it should be. If not, next people will be trying to install the iPod OS on their Zunes. :( I can't really see how Apple is being anti-competitive. They don't have close to majority market share. Besides I think it's anticompetitive that no one has answered OSX with something better. Get coding people! :)

 

seriously... dont get me started!!! I have over 40 distros of linux sitting in a spindle on my desk... i've messed with every single one... screw that...

 

OS X and Vista are great compared to linux.

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i think everyone is missing the point that this is about the lawsuit... which is about legal jargon... not about whether it's good or bad for apple, insanelymac, hackintoshes, microsoft, intel, amd, dell, asus... whatever...

ok thx buh bye...

 

we are discussing the reasons for it... and I dont see anything missing? Lawsuit is the job of the court, this is a community forum and a discussion topic... Everyone is expressing their opinions about it, and it involves everything you count on top that you think is missing the point... Which is also your opinion... Like everyone giving theirs...

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yes but our opinions in reality mean nothing... legal jargon will settle this... and we can't do anything... ok we could but no one is going to start huge protest rallies and stuff like that. besides we're not that type of community.

 

honestly I haven't heard a single new argument... this is getting old... stop beating a dead horse.

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@Redliner

you have whole spindle of linux and not found one you like

 

 

OSX for everytihng is best OS to me

Linux is great for many things.... but can do like 90%+ of those things with OSX with less hassle

Winbloze/Vista .... only if im Drunk

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@slacker25

 

i've found ones that I like, I particularly like openSuse 11 with KDE4 just way too buggy for me to use daily... i'm not the smartest linux user by far though. we are talking about usability for the average joe here though.

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@Redline

 

Im Unix/Linux Administrator so i use it a lot and find lots of uses for it but ... i understand its not for all people

Try Slackware or Gentoo if you havnt already and KDE4 with all its {censored} is too over the top on how much {censored} should be locked into the gui. ... switch to gnome or XFCE4 or better yet if you dont mind no eyecandy hit windowmaker up and that will help performance on it.

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i run a pretty *darn* powerful pc... not worried about bloat very much... i appreciate the eye candy of compiz compositor and so forth... and i like the extreme level of modification that KDE4 presents, but it's just not for me... I have run slackware... just not me...

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Its apples software. Shouldn't it be there choice what kinda of computers to let it run on? Its like arguing that your playing football and you wont let the 4th graders play. boohoo

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KDE4 is a joke so far. Maybe some day it will be good, but it's not there yet. Likewise, Suse 10 and 11 are both horrible distros IMO. Yast is a joke, too, but unlike KDE4 yast will never be good.

 

If you want something reasonable modern and stable give Fedora 8 a try. Fedora 9 has KDE4 and is a little too unstable for my taste, but Fedora 8 is pretty solid.

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Its apples software. Shouldn't it be there choice what kinda of computers to let it run on? Its like arguing that your playing football and you wont let the 4th graders play. boohoo

 

Exactly. Its because they chose that kind of computer that they are getting sued. In todays computing its all about binary instruction set compatibility. If a person's computer can run a program its no companies business to tell them they can't. Its the market's responsibility, and if the market is being denied this, then its the legal system responsibility to make sure the company stops breaking the antitrust laws.

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Exactly. Its because they chose that kind of computer that they are getting sued. In todays computing its all about binary instruction set compatibility. If a person's computer can run a program its no companies business to tell them they can't. Its the market's responsibility, and if the market is being denied this, then its the legal system responsibility to make sure the company stops breaking the antitrust laws.

 

...word.

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@BigPimpin ... yum and fedora isnt any better portage at one time was a dream come true in linux but apt-get has done far better

 

 

@Redline

i Understand its not for you and me either outside of work ... i mean why when i can run OSX and get the best of both worlds

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@Mysticus C* Just because they are using "off-the-shelf" hardware, does not mean that customers have an unalienable right to do whatever they want.

 

I've said my opinion before, but based on the previous courts rulings in similar cases, I'm thinking Apple may loose. And if Apple looses, they WILL close things down and prevent others like us from hacking it all together.

 

It's their software, and it's their right. No one not even the courts can take that away. Sure we can all have 10.5.4 on our machines from now until hell freezes over, but we could loose all abilities to update, forever.

 

As far as other hardware companies making compatible hardware and what not, I'm sure for a fee any company can pay to license the development tools to make hardware for a Mac. But your CPU and mobo will always be from Apple.

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