[Updated 8/04] Apple Sues Unauthorized Clone Maker Psystar

[Impact]

^ If they just sold the hardware, and told the customer to configure OS X on it, they would basically just be selling prebuilt systems, just like Dell or any other PC manufacturer, instead of PCs that are already running OS X.

[giga Veteran]

Engadget's summary of the filing:

Copyright infringement: According to Apple, Psystar modified and redistributed OS X without a license, so straight copyright law applies. This is probably a winning argument -- even if the EULA (which forbids modification and redistribution) is held invalid, redistributing a modified copyrighted work is a big no-no.

Contributory and induced copyright infringement: As we pointed out a while back, by building a business model around the knowing copyright infringement of its customers, Psystar is probably liable for contributory copyright infringement -- this is the same principle that MGM v. Grokster was decided upon back in 2005.

Breach of contract: This is the EULA violation claim. Contrary to what you may have read elsewhere, EULAs in general have been tested in courts many times and have been held enforceable in several states, including Florida, where Psystar is located. In addition, EULAs are currently valid in the federal Ninth circuit, where Apple's brought suit. It's true that there are some cases holding that EULAs are unenforceable and the Apple's Leopard EULA has never been litigated specifically, but this claim isn't nearly as shaky as it's been made out to be -- it's just not a big money-winner like a copyright claim.

Inducing breach of contract: Apple says Psystar "advised, encouraged, and assisted others" in violating the EULA. Considering that's the heart of Psystar's business, we'd say this one lives and dies with the main EULA claim.

Trademark infringement: Apple has registered trademarks on both "Mac OS" and "Leopard," and it says that Psystar infringed those marks when it advertised that the Open Computer could run "Mac OS Leopard" in a way that made it seem like it was an official product. We're not convinced that this is the strongest claim -- Psystar was basically marketing itself on defiance of Apple, not any kind of official support -- but we can see how a court would buy it, especially since Apple makes a big deal of how Psystar's subpar machines were causing harm to the OS X brand.

Trade dress infringement: This one is pretty interesting, actually -- Apple says that the Mac OS X user interface is well known to consumers and has become associated with Apple to the point where it is protectable trade dress -- and that Psystar infringed on Apple's trade dress rights when it shipped Open Computers that contained OS X. It's around this point where you get the sense that Apple's going for the jugular -- there's no way that any damages Apple gets from Psystar are going to cover the additional cost of litigating a claim like this.

Trademark dilution: Dilution is a special trademark protection reserved for "famous" brands -- Apple undoubtedly qualifies. It's a complicated doctrine, but basically Apple says that by using its trademarks, Psystar caused damage to its brand.

State unfair competition: Apple says Psystar violated California law by infringing its copyrighted works, specifically the California Business and Professions Code. We're not up on our California law -- any readers want to flesh this out for us? We'd say it's just a failsafe claim to at least get an injunction in case everything else gets thrown out.

Common law unfair competition: This is basically the same as the state unfair competition claim, only based on a different set of doctrines.

That's quite a set of claims -- and it's probably enough to at least get an initial injunction against Psystar while the case heads to court. In the end, though, Apple wants an injunction against the further sale of Psystar boxes in addition to asking for the recall of every Psystar machine sold (which would be fairly unusual if granted), a dizzying array of monetary damages, and its attorney's fees and costs -- which alone would probably bankrupt Psystar. For its part, Psystar has been saying all along that Apple's refusal to allow OS X to run on non-Apple hardware is a violation of antitrust laws and that it's got a "team" of lawyers at the ready, so it should be interesting to see how this all plays out.

http://www.engadget.com/2008/07/16/apples-...ystar-examined/

[Berserk87]

Wow. Updates...

Apple wants Psystar to snatch back Mac clones from customers

http://blogs.zdnet.com/hardware/?p=2248

For your reading pleasure, I have attached the Apple Filing to this post. :)

could you please edit that into your first post, as with any other updates.

save people the time reading through this thread looking for the "[update]" :pinch:

[Cara Veteran]

could you please edit that into your first post, as with any other updates.

save people the time reading through this thread looking for the "[update]" :pinch:

Done. :)

[Berserk87]

would EFI-X violate most of the same things?

or are they pretty tight.

because they are not selling OSX, and your not required to modify OSX.

:huh:

[Cara Veteran]

would EFI-X violate most of the same things?

or are they pretty tight.

because they are not selling OSX, and your not required to modify OSX.

:huh:

It depends on the level of reverse engineering involved I'd think, if they are using any of Apple's proprietary code then they would be subject to action by Apple.

[Berserk87]

Im pretty sure the entire bases of EFI-X is all that it does is emulate EFI through a usb device, so that you can install OSX as if it were on a true Mac.

[FloatingFatMan]

I thought Psystar were selling the machines without modifying OSX? I was under the impression that they were using the modified bootloader, which isn't part of OSX, and therefore using vanilla OSX installs. Seeing as they were distributing a hacked update, I guess not though. Idiots. They're going to be bankrupt before this even GETS to court...

[markwolfe Veteran]

Im pretty sure the entire bases of EFI-X is all that it does is emulate EFI through a usb device, so that you can install OSX as if it were on a true Mac.

It depends on the level of reverse engineering involved I'd think, if they are using any of Apple's proprietary code then they would be subject to action by Apple.

To me, it sounds like "wine" on Linux. No Microsoft code is used, it just provides the compatibility needed to run apps that are designed on Windows in Linux.

[former1]

An interesting case for sure... Apple will most probably win, which is a shame.

Because I hate this Mac elitist "it simply works" mentality along with saying it's elegant bla bla bla...

They seem to put them selves above the rest because they shelled out the extra $$$ for the exact same as any x86 PC, but with it comes some form of bragging right / "hip" image.

So on those grounds I'd love to see psytar win. So that mac users, finally realise what a big mistake they've made shelling out a few extra hundred dollars more on a mac system, than a self-built system with the exact same specs would normally cost.

[Martog]

Did anyone actually read the steps for the 10.5.3 scripted update from Psystar? What a bunch of BS to go through to update OS X on their machines compared to Apple hardware, no way they can say they are running unmodified code.

1. Please reboot your computer before running the update
   
2. You must have your retail copy Mac OS X Leopard CD in the CD-ROM drive to be able to install this update
   
3. This update will require you to restart your computer once it is complete
   
4. Although the scripted installation is a little over 1MB, the 10.5.3 update from Apple is a very large (over 500MB) download that may take a very long time to download depending on the speed of your internet connection. The scripted installer will download it for you during the installation process
   
5. You must select the appropriate model of computer (Open or OpenPro) and the appropriate model video card when prompted or else your machine may not have video upon reboot
   
6. After the installation is complete and the machine restarts the machine will enter the Apple loading screen for approximately 5 minutes and then reboot (although this process may take longer). Once the machine reboots again it will return to a normal functioning state. It is imperative that you do not reboot the machine prematurely. Rebooting the machine early may cause undesirable effects including, but not limited to: broken operating system.
   

What a bunch of BS, that's worse than Windows updating itself, really. And if you choose the wrong update by accident, you could bork the OS itself, because their silly scripted installer cannot detect what hardware is in the system unlike official OS X and Windows. I would really love to see how Psystar thought they were going to get away with something like this.

[Cara Veteran]

An interesting case for sure... Apple will most probably win, which is a shame.

Because I hate this Mac elitist "it simply works" mentality along with saying it's elegant bla bla bla...

They seem to put them selves above the rest because they shelled out the extra $$$ for the exact same as any x86 PC, but with it comes some form of bragging right / "hip" image.

So on those grounds I'd love to see psytar win. So that mac users, finally realise what a big mistake they've made shelling out a few extra hundred dollars more on a mac system, than a self-built system with the exact same specs would normally cost.

To each their own, however the 'It Simply Works' mentality is justified, as for being elegant...even Apple haters normally give that one to Apple. heh.

Even if Dell sold OS X Ready (heh) machines I'd still be willing to pay the extra cash to just have a working solution without all the crap, if I wanted that I'd already be using a PC!

[former1]

To each their own, however the 'It Simply Works' mentality is justified, as for being elegant...even Apple haters normally give that one to Apple. heh.

Even if Dell sold OS X Ready (heh) machines I'd still be willing to pay the extra cash to just have a working solution without all the crap, if I wanted that I'd already be using a PC!

Don't get me wrong macs do look nice... but so do some sony vaio laptops, dell xps laptops look pretty nice in my opinion. I understand that apple users who do buy things like macbooks and macbook pros, also do so for their looks. But to say their the only elegant consumer hardware is a bit of a snobbish / elitist attitude in my eyes.

Also could you expand on the dell extra crap part? My dell XPS M1530 arrived last week, and I've found no form of advertising / crap on it! That may have been due to me asking to not have any extra software included in the additional comments box - but what's stopping anyone else from doing that?

I do like OS X, I do like Macs and I do like Apple (to a part... I don't agree with their closed platform, but as people have already said - Apple Macs would not survive in an open environment).

What I don't like is a good 80-90% of their user base (and apples marketing department) who have this attitude that their product is superior to any other x86 hardware computer - if anything it's more limited / restricted (hardware wise)!

I do understand your devotion to apple as you do work for them etc. so I wouldn't count you as part of that majority :).

[giga Veteran]

What I don't like is a good 80-90% of their user base (and apples marketing department) who have this attitude that their product is superior to any other x86 hardware computer - if anything it's more limited / restricted (hardware wise)!

Source?

[Cara Veteran]

Don't get me wrong macs do look nice... but so do some sony vaio laptops, dell xps laptops look pretty nice in my opinion. I understand that apple users who do buy things like macbooks and macbook pros, also do so for their looks. But to say their the only elegant consumer hardware is a bit of a snobbish / elitist attitude in my eyes.

Also could you expand on the dell extra crap part? My dell XPS M1530 arrived last week, and I've found no form of advertising / crap on it! That may have been due to me asking to not have any extra software included in the additional comments box - but what's stopping anyone else from doing that?

I do like OS X, I do like Macs and I do like Apple (to a part... I don't agree with their closed platform, but as people have already said - Apple Macs would not survive in an open environment).

What I don't like is a good 80-90% of their user base (and apples marketing department) who have this attitude that their product is superior to any other x86 hardware computer - if anything it's more limited / restricted (hardware wise)!

I do understand your devotion to apple as you do work for them etc. so I wouldn't count you as part of that majority :).

First off, let me apologize for not being clear. When I said crap in regards to the Dell with OS X, I wasn't referring to Crapware/Spyware or even the computer, I was referring to the efforts that are required to go through to reach an acceptable (in my mind) level of stability with OS X on non-Apple hardware. :) I hope this explains it a bit better, again, my apologies.

I wouldn't say Apple is the only stylish manufacturer out there, however, I will say that they do lead the pack in both design and implementation of those designs. After going hands on with Dell's newest Lattitude E-Series model the other day, I will say they won't win any beauty awards but their design ideas are very solid now and it reminded me of a Lenovo and Apple paring.

With respect, the hardware Apple uses actually is superior to 90% (Guestimate based on Internal Documentation from Apple/Intel Tier 1 Policies) of the hardware the OEM's use in their systems as Apple pays additional to the vendors to receive the best of the best from their batches, very similar to workstation/server grade equipment other OEM's use in those products. This provides Apple with a more stable platform to base their OS, the true magic of the Mac, off of. When you look at OS X against any other OS, I've been hard pressed to find better in all areas, some may be superior in one area or another, but all around the OS X package feels the most polished and complete of any that I've tried. :) This is partially in fact due to the limited hardware configurations provided by Apple, and not needing Gigabytes of 3rd Party Drivers which plague Windows, so where you count that as a negative, I count it as a positive. :)

I appreciate the (intelligent) response!

[kaiwai]

Don't get me wrong macs do look nice... but so do some sony vaio laptops, dell xps laptops look pretty nice in my opinion. I understand that apple users who do buy things like macbooks and macbook pros, also do so for their looks. But to say their the only elegant consumer hardware is a bit of a snobbish / elitist attitude in my eyes.

Also could you expand on the dell extra crap part? My dell XPS M1530 arrived last week, and I've found no form of advertising / crap on it! That may have been due to me asking to not have any extra software included in the additional comments box - but what's stopping anyone else from doing that?

I do like OS X, I do like Macs and I do like Apple (to a part... I don't agree with their closed platform, but as people have already said - Apple Macs would not survive in an open environment).

What I don't like is a good 80-90% of their user base (and apples marketing department) who have this attitude that their product is superior to any other x86 hardware computer - if anything it's more limited / restricted (hardware wise)!

I do understand your devotion to apple as you do work for them etc. so I wouldn't count you as part of that majority :).

I don't know what Apple did to you when you were young, but I own this MacBook because I like using Mac OS X - quite frankly, the look of it doesn't even enter the equation when I purchase it. Sure, its great that it looks nice, but that isn't the reason I purchase it. Take a look at the MacBook, its hardly a revolutionary design - just a very simple design which anyone could duplicate if they so wished.

I like running Mac OS X, that is the reason. So I don't know where you come off labelling every Mac user as some sort of 'elitist *******' aka the following:

As for the cost, its hardly expensive. NZ$2099 for a MacBook laptop - sweet bugger all.

[former1]

Source?

Admittedly it is only my opinion, from observations that I have made! But people I know have an air of this attitude about them when anything computing is brought up, as well as those on forums. However surely an observation can be considered a valid reference, if confirmed by others? (I think a few people have said something similar along the lines that I have!)

First off, let me apologize for not being clear. When I said crap in regards to the Dell with OS X, I wasn't referring to Crapware/Spyware or even the computer, I was referring to the efforts that are required to go through to reach an acceptable (in my mind) level of stability with OS X on non-Apple hardware. :) I hope this explains it a bit better, again, my apologies.

I wouldn't say Apple is the only stylish manufacturer out there, however, I will say that they do lead the pack in both design and implementation of those designs. After going hands on with Dell's newest Lattitude E-Series model the other day, I will say they won't win any beauty awards but their design ideas are very solid now and it reminded me of a Lenovo and Apple paring.

With respect, the hardware Apple uses actually is superior to 90% of the hardware the OEM's use in their systems as Apple pays additional to the vendors to receive the best of the best from their batches, very similar to workstation/server grade equipment other OEM's use in those products. This provides Apple with a more stable platform to base their OS, the true magic of the Mac, off of. When you look at OS X against any other OS, I've been hard pressed to find better in all areas, some may be superior in one area or another, but all around the OS X package feels the most polished and complete of any that I've tried. :) This is partially in fact due to the limited hardware configurations provided by Apple, and not needing Gigabytes of 3rd Party Drivers which plague Windows, so where you count that as a negative, I count it as a positive. :)

I appreciate the (intelligent) response!

Ah ok I understand your DELL point now :). Actually - I was looking (just looking :p) at someones efforts to put OS X onto a XPS M1530 and apparently it runs flawlessly!! So it's proof that apple software can be expanded on certain hardware. As for the stability of the instalation I have to say I don't really know.

Also from observations I've noticed from online forums and users opinions DELL in the USA seems to be a bit shoddy... here in Europe you hardly hear about DELLs ever having hardware issues / malfunctions. I've been purchasing DELLs for the past 8-9 years, and they've always been rock solid (although they were all running windows / linux :p).

As for design and implementation, I think that is highly user dependant (well, duh :p). So I can understand someone who buys an apple mac - because ofcourse they like it, otherwise they wouldn't buy it! But some of them refuse to accept that some other laptop manufacturers come close / possibly the same / possibly better (i.e. Envy 133 - I think that's one sexy laptop... ;) ) design wise.

You mentioned tier 1 hardware as being superior - but surely that's not going to make that big a difference performance wise, as far as I'm aware (the consumer) an Intel Core2duo of 2.0 Ghz is going to run at that speed, for the life span of a general computer (3-4 years). I personally don't buy the better hardware == more stable. Ofcourse that's my mind set, and if people think otherwise then they are more than willing to do so.

Also IIRC (I can't find a link for the life of me!) that a mac with XP loaded on it via bootcamp and a dell xps of similar specs with windows on it, beat the mac benchmark wise. Whilst yes, it was windows and not OS X at the end of the day it's all x86 hardware... although I can't find a source, so I'm probably making that up :p

But all in all, I think it's best for users to go what suits them best - just don't go around acting like a dick, because you have a certain brands product.

(Sorry for the off-topic guys!!!)

<snip>

I like running Mac OS X, that is the reason. So I don't know where you come off labelling every Mac user as some sort of 'elitist *******' aka the following:

I apologise that I labelled 80-90% of those who own macs as elitist (not sure where the ******* came from ;)). But 80-90% is most definately not every mac user.

Edited July 17, 2008 by MI6Labs

[Dev Null Zen]

Honestly as far as I knew the keyboard freeze was fixed several patches ago, have you installed all the latest system updates?

As for parts, argue as people might it is a fact that Intel (and several other vendors) provide Apple with Tier 1 components which are above and beyond those distributed to most (not all as there are others who also pay for his privilege as Apple does) OEM's. Tier 1 parts are traditionally reserved for Retail Sales where the company themselves are required to warranty the part and therefore want the highest grade component that should require the lowest amount of money to warranty.

The problem with your logic is there isn't a great deal of it there... It's a well known fact that Apple didn't move to Intel to make things open for PC users to use their OS, rather because Motorola/IBM was unable to provide a power/heat/performance comparable chip at the lower pricepoint as Intel was able to do. Thus the transition was made to insure that the Apple lineup for the future maintained its touted superior performance/stability as had been the banner in the past.

Right now each and every driver put into Mac OS X is quality assured by both the vendor and then by Apple, this is possible given there is a select group of hardware configurations that must be supported. I feel a great many PC users will agree that one of the greatest failures of Windows is not the Redmond code itself, but rather the low quality drivers which cause system performance and stability issues. Apple supports the hardware that has been tested, checked, and approved for use on the platform which insures (for the most part) only stable and quality drivers are provided to the end user.

What would happen if you took Bargain Basement Crap's brand new GeForce card and threw it into a Mac, however as with most OEM's instead of providing reference drivers or Apple Approved drivers you get an out of date, customized, driver package from the card manufacturer. You start experiencing crashes on your previously stable Mac and thus generate support calls to Apple who are not able to properly troubleshoot your problem because you installed a 3rd party card and software which has installed (or overwritten the approved drivers) bad drivers. Thus Apple loses both in the eyes of the customer when they can't fix their problem as well as in the time and money it costs them to support an unsupported piece of equipment.

Most vendors might, and I stress might, be willing to work on OS X drivers but then we are simply left with the quality issue which is something Apple owners buy their machines to get around. I do not feel that those of us who are willing to buy supported hardware should be forced to suffer so that Joe Blow can install a copy of OS X on their Dell Bargain Beigebox.

"It just works" is more than a slogan of Apple users, it's just a fact we've come to appreciate from our Macs' and OS X.

And many users, including hundreds from this site, build their own pc's and so have those same Tier 1 parts. Most of us that argue to see OSX released for all to use, don't have those super cheap components; most people that just buy an OEM system and leave it stock, probably wouldn't want to go to OSX anyway because that means learning a whole new OS, and that's just too hard for most average joe users.

Did anyone actually read the steps for the 10.5.3 scripted update from Psystar? What a bunch of BS to go through to update OS X on their machines compared to Apple hardware, no way they can say they are running unmodified code.

1. Please reboot your computer before running the update

2. You must have your retail copy Mac OS X Leopard CD in the CD-ROM drive to be able to install this update

3. This update will require you to restart your computer once it is complete

4. Although the scripted installation is a little over 1MB, the 10.5.3 update from Apple is a very large (over 500MB) download that may take a very long time to download depending on the speed of your internet connection. The scripted installer will download it for you during the installation process

5. You must select the appropriate model of computer (Open or OpenPro) and the appropriate model video card when prompted or else your machine may not have video upon reboot

6. After the installation is complete and the machine restarts the machine will enter the Apple loading screen for approximately 5 minutes and then reboot (although this process may take longer). Once the machine reboots again it will return to a normal functioning state. It is imperative that you do not reboot the machine prematurely. Rebooting the machine early may cause undesirable effects including, but not limited to: broken operating system.

What a bunch of BS, that's worse than Windows updating itself, really. And if you choose the wrong update by accident, you could bork the OS itself, because their silly scripted installer cannot detect what hardware is in the system unlike official OS X and Windows. I would really love to see how Psystar thought they were going to get away with something like this.

I would hope people adventurous enough to buy a Mac clone would at least be tech-savvy enough for that. Looks like some Linux update stuff that I have seen before though.

To each their own, however the 'It Simply Works' mentality is justified, as for being elegant...even Apple haters normally give that one to Apple. heh.

Even if Dell sold OS X Ready (heh) machines I'd still be willing to pay the extra cash to just have a working solution without all the crap, if I wanted that I'd already be using a PC!

I have created some pretty elegant Linux interfaces as well. It's not like Apple has a stranglehold on eyecandy.

[kaiwai]

I apologise that I labelled 80-90% of those who own macs as elitist (not sure where the ******* came from ;)). But 80-90% is most definately not every mac user.

Well, I wouldn't call it 80-90% of Mac people that. Atleast I'm willing to call them 'elitist' (although I prefer calling them something far worse that will most likely get blanked out with asterisks) - you guys call your elitists, "power users' who know jack about computers but because they have a mouse with 100 pre-programmed buttons and know a dozen registry tweaks off by heart (but not understanding what they do), it makes them a 'power user'.

Don't get me started on Linux users, especially new comers in the last 8 years. The over night Linux experts who found Ubuntu and because they can type ls and pipe a few commands, it makes them a friggin rock star when it comes to UNIX. All operating systems have their screw balls.

[Eric Veteran]

You tell me: http://caselaw.lp.findlaw.com/cgi-bin/getc...;friend=nytimes

That's the ruling that Psytar is hiding behind. I guess we'll see; what comes of this will be huge for Apple either way.

If you want to go that route then, isn't what OnyX does the same thing? It takes the original binaries that comes with OS X and modifies them (making them smaller by taking out the PPC or Intel stuff). Or am I wrong about the way it works?

Wow. I can't believe someone finally found that ruling. It's pretty damning to me. Apple is doing EXACTLY what Data General was trying to do.

[Eric Veteran]

Honestly as far as I knew the keyboard freeze was fixed several patches ago, have you installed all the latest system updates?

As for parts, argue as people might it is a fact that Intel (and several other vendors) provide Apple with Tier 1 components which are above and beyond those distributed to most (not all as there are others who also pay for his privilege as Apple does) OEM's. Tier 1 parts are traditionally reserved for Retail Sales where the company themselves are required to warranty the part and therefore want the highest grade component that should require the lowest amount of money to warranty.

Lol... that's funny. So my OEM Intel CPU is different from the OEM Intel CPU that they ship to Apple? Maybe they have a separate warehouse where they store the 'good CPUs' that they only sell to Apple? :rolleyes:

If what you say is true, I smell an Intel/other OEM to Apple collusion lawsuit coming. Dell, HP, and many other Intel OEMs would be justifiably miffed to find that they are getting inferior product on purpose.

[rajputwarrior]

Lol... that's funny. So my OEM Intel CPU is different from the OEM Intel CPU that they ship to Apple? Maybe they have a separate warehouse where they store the 'good CPUs' that they only sell to Apple? :rolleyes:

If what you say is true, I smell an Intel/other OEM to Apple collusion lawsuit coming. Dell, HP, and many other Intel OEMs would be justifiably miffed to find that they are getting inferior product on purpose.

yeah that doesn't make sense. Cara you are saying that intel shafts its other OEM partners by giving them inferior products? If thats true OMG the repercussions intel and apple would face would be phenomenal.

In terms of the case, apple is going to win, there is no way they are not...

[markwolfe Veteran]

^^^ Doesn't Intel work closely with Apple and give them priority? Including first access and release of new designs, like the CPU used in the Air?

[kaiwai]

Wow. I can't believe someone finally found that ruling. It's pretty damning to me. Apple is doing EXACTLY what Data General was trying to do.

There is a huge difference. If you're using that, they might as well chase after AmigaOS for not allowing them for it to be installed on non-Amiga hardware.

Taking one ruling and using it out of the context in which the case was argued proves nothing.

Btw, Apple didn't care if people were hacking away at it; the problem occured when people turned it from a hobby into a business. That was the line crossed.

[1759]

^^^ Doesn't Intel work closely with Apple and give them priority? Including first access and release of new designs, like the CPU used in the Air?

Those are specially designs, like what Voodoo is using in their new Envy 133, but I'm pretty sure the C2D T5600 in my Mini is the same as other T5600's used by other OEMs. Either a CPU works are a rated speed, partly defective and giving a lower speed rating, or it's just scrap.