Apple aims to dismiss Psystar countersuit

Apple aims to dismiss Psystar countersuit

Summary: Apple asked a U.S. District Court judge to dismiss Psystar's counterclaims against the company.


Apple asked a U.S. District Court judge to dismiss Psystar's counterclaims against the company.

As background, Apple launched a suit against Psystar alleging that the Mac clone maker harmed its brand. Psystar (all resources) fired back arguing that Apple was abusing monopoly power and launched its own lawsuit.

On Sept. 30, Apple fired back at Psystar in a strongly worded 23-page court filing (PDF download, Techmeme) and gave a heads up that it will ask for the Psystar suit to be dismissed in a hearing Nov. 6 with judge William Alsup.

Defendant Psystar Corporation is knowingly infringing Apple’s copyrights and trademarks, and inducing others to do the same. Psystar makes and sells personal computers that use, without permission, Apple’s proprietary operating system software. In an obvious attempt to divert attention from its unlawful actions, Psystar asserts deeply flawed antitrust counterclaims designed to have this Court force Apple to license its software to Psystar, a direct competitor. The Court should reject Psystar’s efforts to excuse its copyright infringement, and dismiss these Counterclaims with prejudice. Ignoring fundamental principles of antitrust law, and the realities of the marketplace, Psystar contends that Apple has unlawfully monopolized an alleged market that consists of only one product, the Macintosh® computer. However, in direct contradiction to Psystar’s claimed Mac®-only market, Psystar admits that “a seemingly infinite list of manufacturers may be found in the computer hardware system marketplace,” including “Dell, Acer, Lenovo, Sony, and Hewlett-Packard to name but a few.” Counterclaims,  22, lines 13-17. Psystar also admits, in further contradiction to its alleged Mac-only market, that Apple has gone to great lengths in the media to position its Mac as superior to other personal computers against which it directly competes. Counterclaims  31-35. Psystar’s very business model is premised on the fact that Apple’s computers compete directly with personal computers using different operating systems. In its Counterclaims Psystar admits computers with the Macintosh operating system (“Mac OS”) are one of many types Psystar sells to consumers: “PSYSTAR manufactures and distributes computers tailored to customer choosing. As a part of its devotion to supporting customer choice, PSYSTAR supports a wide range of operating systems including Microsoft Windows XP and XP-64 bit, Windows Vista and Vista 64-bit, Linux (32 and 64-bit kernels), and the MacOS.” Counterclaims,  15, lines 8-11 (emphasis added) customers are choosing between these computer systems, the systems necessarily compete with one another. For these reasons and others, Psystar’s effort to assert antitrust claims premised on the existence of a relevant product market restricted solely to Apple’s products fails as a matter of law. Moreover, the ultimate goal of Psystar’s Counterclaims is an order from this Court compelling Apple to help competitors, like Psystar, by forcing Apple to license its proprietary software to those competitors for use on their own computer hardware. Psystar’s effort is contrary to law and must be rejected. Neither the federal nor the state antitrust laws require competitors to stop competing with, and instead to start helping, each other.

More on the Apple-Psystar saga:

Topics: Apple, CXO, Enterprise Software, Hardware, Security

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  • Its all part of the game...:)

    Back and forth. Claim and counter claim. Lawyers getting
    rich. Remember all the SCO blank?

    Pagan jim
    James Quinn
  • Apple will fail

    to get this dismissed. I would say that since Apple switched to Intel for its processor - they opened the lid on the can of worms. If they stayed with Motorola and the PowerPC option - there would be no basis for a debate as they are then differnt technologies. The only difference with the "Mac PC" is the EFI preventing the Mac OS from being installed on a traditional PC - nothing more nothing less.
    • Time will tell.....

      However knowing Apple I have my doubts about the suits

      Still if they do loose the case there is nothing stopping Apple
      from switching processors again. So far that tact hasn't hurt
      business any.

      Pagan jim
      James Quinn
      • Not so easy this time...

        One of the primary reason that Apple is having a success with the market share that no one else is right now is that they can offer a machine that can run both Mac OS and Window Vista or Windows XP. People are learning that they can run their software on both platforms and are loving it. They don't have to give up their Windows Games or Software and they can also enjoy the Mac Experience.

        If they dump Intel, they dump that experience.
      • RE: Apple aims to dismiss Psystar countersuit

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    • Theft

      This is an abstraction, you're going to have to get used to
      that. It's a sign that says no trespassing on a low fence
      that presumes to manifest it. Can you step over the
      barrier? Yes. That's not the point. It's the rule of law that
      polices the transgression. Having legs doesn't give you the
      right to wander the landscape with impunity. This may
      come as a shock, but property drives the economy. Intel's
      hardware spec has absolutely nothing to do with this issue.
      Until you folks can get it through your heads that the OS is
      the computer, and that it is protected as property, you will
      not understand this issue.

      Either promote outright theft, or promote an aboriginal
      "property free" society, or promote broad adoption of open
      source code. Just don't say, that in a free market?-one that
      is moving out from under the yoke of Microsoft's feudal
      system--that Apple owes you a living. They most certainly
      do not.
      Harry Bardal
      • Theft ? Maybe, Maybe not.

        1) Apple claims they modified the code, well without knowing specifically which parts, some are open source and if they modified those parts, than they have not broken the law on this count.

        2) Now if they are actually buying copies of OS X for each system they install it on and sticking an Apple Label on the computer, then they are within the Law, the EULA states to be used on a Apple Labeled Computer.

        If they are not buying copy for each system they are selling to their customers then they should be sued out of existence, but if they are purchasing license then how is Apple being damaged ????
        • Keep your day job

          1) They modified Apple proprietary code.

          2) Apple Labeled computer means Apple branded and every judge
          in the country knows it.
          • Better get a second job

            <i>1) They modified Apple proprietary code.</i><br><br>

            A claim that is part of the suit yet to be proven. If they wrote their own utility to allow Apple's code [unmodified] to run on generic machines, then they did not modify Apple's proprietary software.<br><br>

            <i>2) Apple Labeled computer means Apple branded ...</i><br><br>

            Then why does it not say that? You would assume that particular language was iron-clad vs. the more ambiguous existing license, Apple's pack of lawyers would have made it so.<br><br>

            <i>... and every judge
            in the country knows it. </i><br><br>

            It's not about what a judge knows or believes, it's what a lawyer can convince a jury of.
          • You should be an Apple attorney and Psystar wouldn't have anything to fear.

            What proprietary code did they modify? No one seems to know. I do know that the loader code modified by the Hackintosh project is all based on the Open Sourced Darwin project code.

            No, every judge doesn't know that labeled == branded. In this case, it would be the letter of the agreement that would kill them because the spirit of the agreement can't be upheld under this situation.

            Plus, since Psystar is allegedly actually paying for every copy of OS X that they install, there's no theft either.

            This is just a case of sour grapes for Apple since it is very doubtful that anyone buying a Psystar computer is under the impression that they are actually buying a Mac. Unless the customer is being told that they are buying an Apple computer, how is what Psystar is doing harmful to the Apple brand? Harmful to the Apple bottom line, yes, but not to the brand.
        • Don't all licenses have limitatioins?

          I know there are a whole lot of rules I must follow to keep my
          driving license. Some of them I actually don't agree with.
          Like seat belts and or having to have insurance to register
          and use my car. Who the heck are they to tell me that about
          the use of my property eh!?!

          Licenses all of them come with restrictions as far as I know.

          Pagan jim
          James Quinn
        • Time

          It's not a theft of code, it's not the theft of objects. There
          is no "ownership" of the OS. There is ownership only of a
          disc that makes a handy drink coaster, because it can't be
          used any other way. What is stolen if there is no


          The use of OSX outside of license compliance is the theft
          of time, and Psystar is a broker for that theft. Did they
          "steal" it? No, formally, the user steals it. Maybe you folks
          are confused by the liberal usage granted with license
          compliance? Maybe you're confused by the Microsoft's
          legacy of "open" architecture. Maybe you're confused by
          the GPL. I don't know. Psystar is the fence for the goods of
          "dubious origin". Ignorance is no excuse in the face of the
          law, so why would a willful transgression do any better.
          Psystar doesn't get it. You don't get it. This is anything but
          a nuanced case.
          Harry Bardal
      • But it's NOT theft

        Psystar is allegedly paying for the OS X licenses that it installs on the user's computer. If proven true, where is the theft?

        The issue is that Apple does not want OS X installed on computers that are not also controlled by Apple. That's a license issue.

        This seems to be the attitude that is clouding the folks that are screaming loudly against the Psystar efforts, but Psystar is not stealing anything.
        • License Compliance

          It is theft. Very much so. It is the direct analog to theft
          when there is never any ownership to begin with. We are
          granted the opportunity to use the code as long as we stay
          license compliant. Psystar did not. Who says? Apple does,
          and it's they're prerogative. This is not the reuse of the
          alphabet, this is the re-jacket and resale of Apple's novel
          within a different wrapper. It won't stand.

          What was stolen? Time. Any time spent on a Psystar
          computer within an OSX environment was stolen time,
          brokered by Psystar. Like I said, these are abstractions, but
          abstractions are the basis for our economy. Get used to
          them. This issue distills down to shrink wrappped software
          return policy, but that has nothing to do with Psystar's
          Harry Bardal
          • No theft is involved; breach of contract and

            theft are not equivalent. This case is classic case of breach of contract (licensing agreement); however, it's a stretch to call breach of contract actual theft even in an ethical sense.
    • WOW

      "Apple will fail
      to get this dismissed. I would say that since Apple switched to Intel for its processor - they opened the lid on the can of worms. If they stayed with Motorola and the PowerPC option - there would be no basis for a debate as they are then differnt technologies. The only difference with the "Mac PC" is the EFI preventing the Mac OS from being installed on a traditional PC - nothing more nothing less."

      This is the best satement I have ever heard.....

      I hope apple gets tounced

      Considering.. MS cound't put DVD player into windows without getting sued... and where is powerdvd today???
  • They don't need to change processors

    They only need to set a new price for a box copy of
    OSX that will make the cheapest PC more expensive
    that Macs. Customers with real Macs could get a
    rebate to keep their price $129, or $199 for the
    Family Pack.

    Since OS X is Apple's property they can set whatever
    price they want.
    • Quite frankly . . .

      It'd be even simpler to just require proof of ownership of an Apple Branded machine in order to buy the OS "upgrade".

      Which brings up another point. They could have avoided ALL of this by simply marking the box "upgrade only - only to be used to upgrade an existing OS X installation" or something to that effect, and it would have shot down ANY possibility of a company like Psystar getting their foot in the door. Why didn't they? Surely their lawyers would have advised them of this . . .
      • Because if they had... would have looked like Apple upgrades were WAY more expensive than XP or Vista.

        They were going for the cheap shot--and now it's gonna cost them.

        Of course, $129 for an upgrade isn't price gouging in the current market and it would be a seriously cheap way to destroy a small company like Psystar--at least in the Mac cloning part of things.

        But then, Apple is all about being the 800 pound Freddy Kruger of the legal world...
  • Small world

    Some things never change.