Apple wants Psystar to snatch back Mac clones from customers ... and other thoughts

Apple wants Psystar to snatch back Mac clones from customers ... and other thoughts

Summary: The revelation yesterday that Apple had filed suit against the Florida-based Mac-clone outfit Psystar generated a lot of commentary and questions from readers. So much so that I've decided to try to cover some of them in this post.The bottom line is that Psystar's customers are up a creek without a paddle.


The revelation yesterday that Apple had filed suit against the Florida-based Mac-clone outfit Psystar generated a lot of commentary and questions from readers. So much so that I've decided to try to cover some of them in this post.

Why is Apple suing Psystar?

Apple vs. PsystarWell, to put it simply, Apple believes that Psystar has no right to sell systems pre-loaded with the Mac OS X.

Read the full complaint here.

Isn't this just a case of Psystar breaching Apple's EULA (End User Licensed Agreement)?

No. On the face of it this suit might seem a little petty given that each copy of Mac OS X that Psystar was selling was legitimately purchased, but Apple claims that Psystar's Open Computer and OpenServ systems run a "modified unauthorized version of the Leopard operating system." Psystar has also been pushing modified versions of Apple's security updates (modified so that they'll work on Psystar's machines) via its website.

So this is just an issue of intellectual property infringement?

No. In the suit filed, Apple has also been quite scathing about the quality of the systems that Psystar is selling:

Online commentators have reported that Psystar’s computer is “missing stuff like iLife, Bluetooth. an IR receiver, DVD burning and the ability to update your computer,” is “LOUD, Crazy Loud,” it “breaks the OS’ automatic updates,” and that “video was DOA right out of the box. No signal going to monitor Boot up is moot point as there is nothing to see.” Of Psystar itself reviewers have written “they have no quality control,” “lousy tech support,” and “All I want to do is return the computer and get a refund.” Likewise, it has been reported that Psystar has repeatedly changed location, this its office could not be found and that its first on-line payment processor terminated Psystar’s account.

So if Psystar stop selling the Open Computer and OpenServ, it's in the clear?

No, Apple seems to want to take things a lot further than that. For starters, Apple claims that "Psystar’s actions have been committed with intent to damage Apple and to confuse and deceive the public" and that "as a direct and proximate result of Psystar’s infringing conduct, Apple has suffered and will continue to suffer lost sales and profits in an amount not yet fully ascertained in an amount to be proven at trial."

Not only does Apple want Psystar to stop selling Mac clones, it also wants Psystar to recall ALL the Mac-clone systems sold since April.  

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But weren't all copies of the Mac OS bought and paid for?

Yes, but that's not the point. Apple is claiming that Psystar had no right modifying its code in order to make it work on a standard PC and then distributing that modified code.

So, where does this leave customers?

Up a creek without a paddle. Apple wants all Open Computer and OpenServ systems sold by Psystar since April to be recalled. How that would work and whether customers would receive a refund is unclear at this point.

But let's assume that there is no recall and that this is simply a legal tactic to make life harder for Psystar, customers who bought Psystar systems running Mac OS X are still in limbo. Since these systems relied on system updates that had been doctored by Psystar not to cripple the machines, and that we can be pretty sure that no more of these updates will be released by Psystar, the OS is essentially frozen in time. On top of that we can also assume that technical support and any warranties are now kaput too.

Was what Psystar doing legal?

Several of the TalkBack commentators yesterday seemed convinced that Psystar was in the clear as to what it was doing and that it was Apple that was wrong to file suit. I am not a lawyer and my usual phrase in these cases is that it's for the courts to decide what's legal and what's not.

However, if there were a legal loophole that allowed an OEM to modify the Mac OS to run on a standard PC then I'm surprised that we haven't seen a big OEM like Dell or HP do it. The fact that the only company to sell a Mac clone was a company that no one had hear from tells me that the big names had already ruled it out. If Psystar had managed to load the Mac OS onto the systems without modification then a it might have fallen into that grey area and remained unchallenged, but Psystar was blatant about what it was doing, and there's no way that Apple could be seen to allow that to continue.

Will Apple ever become clone-friendly again?

I doubt it. Apple is a hardware company and not a software company and it needs that hardware/software lock-in to remain in place. Just as when the "IBM PC" became the "IBM-compatible PC" and later just "PC" pretty much everyone benefited from that ... apart from IBM. Apple would have to radically alter its business model in order to be able to survive in the face of clones.

Will virtualization eventually break Apple's grip on hardware?

Maybe, but I can forsee a massive Apple vs. The Hackers battle at that point. Then Apple will probably end up adopting a Microsoft-like product activation routines.

Will this case ever make it to court?

Personally, I doubt it.


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Topics: Operating Systems, Apple, Hardware, Software

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  • If it goes to trial... will be a very interesting case. At the heart of it is the notion of usage restrictions in copyright licenses. Note that you can do pretty much whatever you want with a copyrighted book, except copy and redistribute large portions of it. This is even true (for the most part) of recorded music. It's only the publishers of software, and material intended for performance (sheet music, plays, movies, etc) that try to limit how the copyrighted material is used and publishers of the latter generally restrict themselves to limiting public performances. It's only software that comes with long cumbersome EULAs that try to impose detailed restrictions on how the material is to be used and by whom (can you imagine book publishers trying to do that?).

    The big risk for Apple is that they impose usage limitations that really have nothing to do with copying or even concurrent use. The court may well strike them down if Psystar can last long enough.
    John L. Ries
    • I agree and believe Apple is playing a very dangerous game.

      As you said, if a court says that part of the EULA is unenforceable Apple will see a hundred clone makers next month.

      Ya know, a person/company might even make a good "Retraint of Trade" or even a "Monopoly" arguement.

      As I said in the header, Apple is playing a very dangerous game.
      • Who else has a dog in the hunt?

        If the court says that part of Apple's EULA is unenforceable, when it's a part that's so essential to Apple's business model, then who else has questionable terms in their EULA that they heavily depend on? I can see everyone from the Free Software Foundation to Microsoft having a dog in this hunt.
        • You're wrong about the FSF

          They are more than happy to let you modify and distribute software. Theirs is not an end users license, but a distribution license. And anyway the license they champion [url=]has been challenged and held up in court[/url].

          MS would have a dog, but it's not as big of one as Apple's, because MS isn't as restrictive as Apple is on what hardware it can be installed on (well... now that they've retracted the VM restriction).
          Michael Kelly
          • I wonder if it would end OEM editions

            They in a way tie to the machine they are first installed on by means of EULA.

            It would kind of suck if all we could buy after this Retail copies if suddenly the OEM restriction the PC it's installed on disappears.
          • Not really

            The retail price would just come down close to what the OEM price is now. The OEM price for Windows is where it is because that's what OEMs are willing to pay. If there were one version, then MS would be forced to drop the retail price to keep OEMs from being priced out of the market.

            The OEM/Retail thing is an artificial difference meant to make single customers pay much more.
        • Not really

          I know of no other vendor that says you can only run their software which you bought and paid for on their hardware only.
          • Actually yes ...

            ... Psystar has essentially appointed themselves as an OEM distributor of Mac OS X. They are sending their machines out with modified versions of the OS and are offering modified version of patches from their website. Looks like they are distributing OEM versions of the software without the consent of Apple.

            To put it another way, when Psystar buys the copy of OS X from Apple to put on their box, it's a user license they are buying, not a distribution license. If Psystar only sold OS X-compatible boxes with no OS on them, they might have a leg to stand on, but it seems like they are illegally redistributing Apple software by including it pre-installed on the machines.

            Every OS manufacturer will be watching this case because if this tacic is deemed legal, all of their venue from OEM licenses is at stake. Every hardware manufacturer will be watching to see if there is a new market opening up. If Psystar is allowed to sell Mac clones, then we may very well see Dell, Sony and hp making them, too.
          • First sale doctrine

            Can't get past it.

            The EULA violates fist sale doctrine by trying to control what the owner of the software copy can do with it (and yes, they own the *copy* and can do with it exactly what they like, except sell/give away copies of it).

            Why do you think it took Apple months to sue? If this goes to court the EULA restrictions will certainly go bye-bye.

            Copyright infringement isn't happening here, either.

            At most Apple has Psystar on trademark issues, and that will prove expensive to Psystar. But the collateral damage to Apple will destroy their business model.

            Talk about Pyrrhic victories...
          • NO, they can NOT do with it what they like.

            If they don't agree with the EULA, they need to not install it. The EULA is an AGREEMENT. You tacitly and implicitly AGREE to the use set forth in the AGREEMENT by installing the software.

            First use means that AFTER you're DONE with YOUR USE of it, you may transfer it to someone else AND STOP USING IT YOURSELF. If you give a book or a CD to someone, you no longer have it--unless you made an illegal copy of it. So when you transfer it to someone else, you NO LONGER USE IT YOURSELF.
          • They aren't distributing

            They're reselling retail copies bought at retail. Besides, you don't need permission to resell someone else's product *if you buy it at retail*.

            OEM agreements give you a price break, for which you give up certain rights.

            Retail transaction = product for money, nothing else. And then there's first sale doctrine...
          • Not artificially...

            What [other] hardware does IOS run on?

            Are upgrades available?

            Are they free?

            I don't actually know. I'm just asking.
            Still Lynn
          • No other vendor???

            [i]"I know of no other vendor that says you can only run
            their software which you bought and paid for on their
            hardware only."[/i]

            So you're telling me its perfectly alright to play an Xbox
            game on a Playstation; a Playstation game on a Nintendo
            console, etc. Hmmm.... Someone is very, very blind here.
          • Did I miss the announcement?

            Do Playstation, Nintendo, and XBox 360 all suddenly share compatible hardware?

            There is a huge difference between not being able to run software on fundamentally incompatible hardware (as is the case in the console world) and not being able to run software because the vendor has [b]artificially[/b] and [b]onerously[/b] used a TPM DRM chip to ensure that otherwise compatible hardware will not run their product (as is the case with Apple).

            In other words, you can't run a Playstation game on an XBox console because programs written to run on the Cell processor cannot run on the PPC. Nothing in Playstation's EULA states that you can't try to run XBox games on your Playstation. You can't run OS X on a Psystar because Apple has an EULA that says you can't even though many months of Psystar sales show that it is obviously technically possible. Is the EULA enforceable? We'll never know because Apple will play the part of the 800lb gorilla and simply crush Psystar before a judge ever gets to rule in favor of competition. Score one for the little guy!
          • My Dear N-Z. I was hoping you'd show up.

            Of course, you clearly miss the point in so many ways.

            [i]"There is a huge difference between not being able to
            run software on fundamentally incompatible hardware
            (as is the case in the console world) and not being able
            to run software because the vendor has artificially and
            onerously used a TPM DRM chip to ensure that
            otherwise compatible hardware will not run their
            Hmmm... Let's see. Why did Sony go so far as to use
            [i]blue[/i] CDs for their Playstation games? Why did
            they squawk so loudly when hackers "chipped" those
            consoles to allow pirated, illegal copies to play? Why
            does Microsoft go out of its way to make sure ONLY
            Microsoft-encoded game disks run in their XBox? And

            Believe me, every one of them has [b]../artificially and
            onerously used...[/b] some form of security to ensure
            otherwise compatible hardware will not run their
            product, or the other way around when you think of it.
            There Is No Difference.

            [i]"... you can't run a Playstation game on an XBox
            console because programs written to run on the Cell
            processor cannot run on the PPC."[/i]
            Does that mean Apple software can? It used to run on
            a PPC quite nicely, in fact. But not on an XBox. Not
            legally, anyway.

            I've already commented about the EULA many times...
            but the simplest point is, Psystar does NOT have an
            OEM license with Apple, and they are NOT the End
            User, thus planting them squarely on the tracks of the
            copyright train. They're getting hit, and hit hard.
          • artificial and onerous

            ((( "blah, blah, blah... not being able to run
            software because the vendor has [b]artificially[/b]
            and [b]onerously[/b] used a TPM DRM chip...
            yakkity, smakkity..." )))

            I seemed to remember you using the phrase
            "artificially and onerously" in the past, so I did a
            Google search of this site, and I discovered that,
            including this last post of yours, you've used the
            exact phrase "artificially and onerously" in at least
            30 different comments, and the exact phrase
            "artificial and onerous" in another 6 comments. In
            one comment, you actually used both phrases
            together. Wow. That's a minimum of 37 times that
            you've said exactly the same thing on just this one
            site (I shudder to think about doing a wider Google
            search of the whole web).

            Now, of course, it's your prerogative to reuse
            whatever stale old phrases you may cherish, as
            many times as your heart desires. But then it
            occurred to me that perhaps you simply don't
            know any better, and your vocabulary is so limited
            that you have difficulty rephrasing the same
            talking points that you use incessantly in every
            discussion here. So, in an effort to help you retire
            your tired phraseology, and make you sound a
            little less (shall we say) obtuse, I found a few
            synonyms for you to start you on your way to an
            enhanced vocabulary:

            For "artificial," you might consider instead using
            [i]bogus, contrived, fake, false, phony, pretended,
            [/i]or [i]sham.[/i] For "onerous," there's [i]arduous,
            burdensome, grueling, laborious, oppressive,
            strenuous, taxing, [/i]and [i] toilsome.[/i] I kind of
            like the sound of "phony and oppressive," although
            "contrived and burdensome" has its merits as well.
            The point is really to mix and match some of these
            words into unique phrases that haven't already
            been overused ad nauseam here. Good luck, and I
            hope to see some new thoughts (or, at least, the
            same old thoughts phrased a little differently) from
            you soon!

            NOTE: Anyone wishing to reproduce my search
            results can go to Google and paste this in:

   "artificially and onerously"
          • Really?

            Sony PS3?
            Nintendo Wii?
            Microsoft Xbox?

            I doubt they would be too pleased to
            find you running their software on your
            computer to play their games.
            Kid Icarus-21097050858087920245213802267493
          • Do you really think so?

            I don't think this is exactly the same. The software isn't available separately. It's burned into ROMs. A similar situation would be if Sony sold ROMs with the PS2 software on them. You would be buying the ROM and installing it into a board not made by Sony. You might even need to bend some pins to get it to work correctly. I don't think they would have any right to complain even if the intended for you to only replace the chip in your PS2.

            I don't think that the maker of Soul Calibur 3 will complain if I buy the disk, then I use a PS2 emulator or a knock-off PS2 to play that game.

            Apple sells a stand-alone retail operating system. Can they really control what hardware that OS goes on? Should they be able to? One way for Apple to make sure that this never happens again is to sell the retail copies as upgrades, not full versions. Apple computers come with the software already, so anyone buying a retail copy will be upgrading. A knock-off won't have that right.

            I really think Psystar will end up losing this one and that Apple will get a victory. Psystar's actions are probably illegal in the U.S., but they shouldn't be.
      • Milton Bradley sues Not Asked Can't Tell!!

        For failure to practice restraint of tirade while slandering monopoly and not being in possession of a clue!!

        Don, you obviously don't know what a[n illegal] monopoly is since you think M$ doesn't have one but Apple does/might.

        Do you also support Coke One in their suits against Coke? (I'd guess you're a Coke supporter and, therefore, non-athletic.)

        As much as I enjoy your fits of unintentional humor I find myself compelled to note [again and again] that taking yourself seriously is the exact opposite of conducting yourself seriously.

        Now, bring on the incoherent sentence fragments and mis-spellings. They are just as [unintentionally] amusing!!
        Still Lynn
        • You need to . . .

          pay better attention to the Soda world!!!

          It's Coke Classic trying to sue Coke ZERO (not One), and it's definitely tongue in cheek, considering the Coke guys in the Ads are trying to have some of the Coke Zero guys deported back to Canada!!

          If you're a Coke supporter, and you're athletic, does that make you an Athletic supporter? :)