Psystar's antitrust claims against Apple dismissed

Well, we can't say we didn't see this coming -- Judge William Alsup in the federal Northern District of California today dismissed Psystar's antitrust counterclaims in Apple's copyright infringement lawsuit against the wannabe Mac cloner. According to the judge, Psystar's hotshot legal team failed to provide facts "plausibly supporting the counterintuitive claim that Apple's operating system is so unique that it suffers no actual or potential competitors." Not only that, but the judge also found that Psystar actually contradicted itself in pointing out that Apple has to advertise heavily to promote OS X against competing operating systems that perform the same tasks, and that Apple is "certainly entitled" to ask its customers to only use OS X on Apple machines. Yeah, that's a smackdown. Psystar has until December 18th to amend its complaint and try these arguments again, but we can't say we think it's got a shot in hell here -- and something tells us that that court-mandated alternative dispute resolution process isn't going to get very far in Psystar's favor either.

Disclaimer: Nilay's a lawyer and sells bootleg OSx86 machines out the back of his van, but he's not your lawyer and this isn't legal advice.

[Via Macrumors]

[)ROFL( @ Nov 18th 2008 7:08PM]

"Disclaimer: Nilay's a lawyer and sells bootleg OSx86 machines out of his van, but he's not your lawyer and this isn't legal advice."

Ha! Good one. *golf clap*

[Testies, Testies, 1, 2... 3? @ Nov 18th 2008 7:37PM]

+1 for relevant avatar

[r3loaded @ Nov 18th 2008 8:03PM]

How much for an OSx86 machine Nilay? And does it have Blu-Ray?

[Ryan Trevisol @ Nov 18th 2008 11:25PM]

Nilay, do you WANT to be my lawyer?

[Hjr21 @ Nov 18th 2008 7:09PM]

I wish OSX could be available to all computers, Apple could make a fortune, well, more than they already do.

[loocas @ Nov 18th 2008 7:11PM]

But then it'd show that Mac OS X isn't really that compatible and Apple would have to pay A LOT more on support service for every macho trying to get their beloved OS to run on a PS3. They wouldn't make a fortune, but rather lose quite a lot of dough.

[Vander @ Nov 18th 2008 7:18PM]

If so...what I'm going to do with my perfect-designed 2 buttons mouse?
*Crap

[lurch_mojoff @ Nov 18th 2008 7:32PM]

And you base your claim on what? Stuff you pulled out of your bum?

[CraigJ @ Nov 18th 2008 7:55PM]

@Vander. Use it with your Mac, of course.

[UnixSystemsEngineer @ Nov 18th 2008 9:24PM]

Their sales would be much higher, that's for sure. Unfortunately, costs would vastly exceed sales and they'd go out of business.

[KarlW @ Nov 18th 2008 9:42PM]

@lurch_mojoff

Probably from the size of the OSx86 community. I'd agree with him that I'm sure there are lots of people who are curious about the alternative OS, but won't switch because it would be prohibitively expensive.

[KarlW @ Nov 18th 2008 9:49PM]

I'd add that Apple make most of the drivers that ship with OSX. If they took a Microsoft approach and let hardware manufacturers create their own drivers, I think it would be possible to keep costs under control.

Unfortunately, most Windows crashes and bluescreens come from bad drivers, so stability would be something of a hit-and-miss, depending on which company wrote your drivers. Microsoft's code is usually quite stable, but 3rd parties often ruin it with bad drivers. Apple gets around that at the moment by creating all drivers in-house in consultation with the party who made the hardware. It doesn't scale very well, so Apple are forced to restrict hardware choices if they want to maintain predictability.

[spam_free @ Nov 18th 2008 10:25PM]

Also, seeing as there's currently no serial number or CD key that goes with OSX install DVDs, if Apple were to open up the OS to all hardware, they would need to become like Microsoft in implementing such anti-piracy measures. Otherwise, Apple would effectively make $zero$ from licensing OSX. And as other posters pointed out, the vast combination of hardware components would balloon Apple's support and R&D budget to a point it's no longer making a profit. And if another hardware maker (Dell, HP, etc) starts to have quality issues in the crapware/drivers that they include, customers would likely blame Apple for it (much as Microsoft gets blamed for most of the problems). So if Apple were to license OSX at all, it would have to be under draconian strict terms with a team of lawyers blessing each clone coming off the assembly line. In other words, it's as likely as Steve giving each American a free Macbook Pro. But I would settle for a Macbook. Call me, Steve. I know a great vegan place.

[dandaman @ Nov 18th 2008 10:27PM]

@loocas

I believe that's a symptom of Windows disease

[puhsitch @ Nov 18th 2008 10:52PM]

They already tried that. Didn't work.
http://en.wikipedia.org/wiki/Macintosh_clone#Official_Macintosh_clone_program

[Kelmon @ Nov 19th 2008 5:29AM]

@Hjr21

Short answer: No

Longer answer: Apple makes its money on high margin hardware rather than software that yields very little income (mind you, the iPhone is contributing a lot now). If Apple were to shift to sell OS X for other computers then they'd be shooting themselves in the foot by swapping high-margin sales for low-margin ones. They would need to sell a hell of a lot of OS X licenses to cover the losses and I highly doubt that there would be THAT many Windows users who would switch. Licensing OS X would be suicidal given Apple's current business model.

[Lucas @ Nov 20th 2008 1:01PM]

if they did that you can guarantee that the whole in store support "genius bar" probably would crash and burn real quick. that program is possible because of the limited choices for the hardware that is being used. totally open ended means way way too many factors. if they kept the program there would be no free quick fix for sure. cause there's no way they could solve most problems in 15 minutes.

[Falcom @ Nov 21st 2008 4:55PM]

then osx would run as hit or miss as windows since the hardware is no longer as tightly controlled. If windows ran ONLY on dell's and dell was owned by MS, they could make it just as user-resistant as OSX seems to be. Open that up to literally millions of different possible computer configurations instead of say...24 different systems that a current build of OSX runs on and you run into certain issues with compatibility. Apple does well at what they do, but then again MS does well also, they just have different goals.

[loocas @ Nov 18th 2008 7:10PM]

Pheeeeww...

I started to kinda worry aobout the current mac users... they'd have to increase the price of every single point release to pay for the lawyers.

[nickz @ Nov 18th 2008 7:14PM]

I don't really understand how Apple has any ground to stand on in this suit against Psystar. Apple will gladly sell you a box with an OS X install disc for $129, but then tell you that you can't do what you want with it. Does anybody else see how ridiculous and totally illegal this is? Do you think that General Mills would be able to defend itself in court if it started selling Cheerios with a EULA barring them from eating it out of anything but a General-Mills-branded bowl?

[who? @ Nov 18th 2008 7:25PM]

You can do whatever you want with it personally, but Psystar modified it and is now selling it preinstalled. You can't modify and resell- that's called plagerism.

[Ted @ Nov 18th 2008 7:31PM]

It may be ridiculous (that's your opinion) but it's certainly not illegal at all. The only legality question is how the EULA is presented. Some courts have ruled it is illegal to bind a consumer to an EULA they cannot see until they open the box. That's why many companies now publish the EULA's online so consumers can review the EULA before purchasing the software, opening the box, and being bound to its terms.

http://www.apple.com/legal/sla/

[Adam @ Nov 18th 2008 7:38PM]

It's not cereal it's a software license? For $130 you get an upgrade to the current version of OS X, it is assuming you paid for a version of OS X originally when you bought your computer. A better analogy would be Dell buying Windows upgrades and installing that on their computers.

[lurch_mojoff @ Nov 18th 2008 7:32PM]

Wow, you must be, like, some law prodigy or something.

In the words of Judge Alsup: "Apple asks its customers to purchase Mac OS knowing that it is to be used only with Apple computers... It is certainly entitled to do so."

[VanillaSpice @ Nov 18th 2008 7:50PM]

Wow, Nilay's not our lawyer, but you are REALLY not a lawyer at all.

It is not illegal, EULAs are accepted and upheld, this has nothing to do with Cheerios ... and, um, that's about it.

The "what about buying a General Motors car ..." and now your "Cheerios" analogies have all been dealt with before, but for the record: you do not buy software, you actually buy a licence to use software, and with that licence comes licence conditions that must be adhered to or your licence is revoked. This is different from buying Cheerios or a car, where you are buying a physical product. Capiche?

[UnixSystemsEngineer @ Nov 18th 2008 8:11PM]

Psystar deserves to lose the countersuit for the reasons listed -- Apple simply does not have a monopoly over anything in desktop computing. It also might shut up the uneducated Apple haters who insist that Apple has a monopoly on operating systems named after large cats and released by companies with a fruit in their logo, or whatever baseless claim they're making this week.

The *interesting* question here is who will win the arbitration, which has nothing to do with whether or not Apple is "entitled to ask" its customers to use OS X on only their own hardware, but on whether the EULA is valid and enforceable. That has nothing to do with the monopoly Apple obviously does not have, or whether or not Apple is right to want OS X used only on Apple hardware.

The real issue at stake is whether or not shrinkwrap contracts that Apple and others use are valid.

[UnixSystemsEngineer @ Nov 18th 2008 8:15PM]

Adam,

Apple doesn't sell upgrades to consumer versions of OS X, it only sells full versions. If the $129 price was for an upgrade, they'd probably be on more solid legal ground, but since it's a "full version" that can only be sold on Apple-branded hardware, one could find the restriction to be arbitrary. Although the judge in Psystar's countersuit found that it was not arbitrary. But again, this doesn't matter, because the dispute resolution will revolve around whether they can enforce the EULA, not whether or not their "Apple-branded hardware only" demands are reasonable.

[digitallysick @ Nov 18th 2008 7:16PM]

I agree, You should be able to run the software on the machine of your choice. What if all software was like this? For example you can only run Adobe Photoshop on a special computer adobe made. How would you feel?

[who? @ Nov 18th 2008 7:22PM]

An operating system is totally different, and I think you know that.

[Cameron @ Nov 18th 2008 7:26PM]

If you dont like the conditions of use then dont use it. simple as that. There is always an alternative for you - Windows, or even linux.

If Adobe chose to support a computer that they made and that computer only then that is their choice.

Do you complain that you cant install software for a garmin gps unit onto a navman gps unit? or what about a head gasket for a BMW, do you complain that it doesnt fit a Honda?

[thethirdmoose @ Nov 18th 2008 7:33PM]

That's a flawed analogy. A BMW gasket doesn't fit on a Honda. Garmin software is incompatible with navstar units. If you can dremel down your bmw gasket to make it fit on a honda, it's perfectly legal.

[matthew @ Nov 18th 2008 8:40PM]

I would not buy the product. If I can not live by the rules of the agreement, I do not enter the agreement. Someone else will come up with a better product and market if better.

So, what are you people who do not like the way Apple sells is products doing to make your own? Are you giving Linux a try? It is free!

How about Windows? There are many choices - you do not need to use Apple products at all.

It is about choice - you have a choice: if you do not like what Apple does, buy something else.

It is simple.

[BratPAQ @ Nov 18th 2008 8:59PM]

why do we have to use metaphor here, its very simple, apple built the OS and spent like thousands, if not millions of dollars on it, only to be copied and installed by pystar at totally little to no profit for apple. is that legal? is that even fair?

[spam_free @ Nov 18th 2008 11:08PM]

@Brat
While I disagree with Psystar, they DO pay Apple (indirectly) by buying retail copies of OSX. So they're not pirating it. But that still doesn't make it legal for them to modify then resell it.

[Cameron @ Nov 18th 2008 7:26PM]

Id like to keep OSX as mac only, it certainly compliment the machines nicely and vice versa.

It takes away the shine of OSX if you see it on a beige box. apple is in the premium brand and they need to protect that image, otherwise they will just blend in with everyone else. Its a bit like ferrari - would you think so highly of ferrari if they would sell you a ferrari badge to stick on your toyota?

[MarbleMind @ Nov 18th 2008 7:18PM]

Well, well, looks like a swansong has just begun playin'... too bad, they really schemed a decent rebellion. If you want to grab one of their anarchist macs, now would probably be the right time.

[Skrying @ Nov 18th 2008 7:20PM]

Sigh, this is really bad news. It would have been great for people to buy copies of OS X and use them how they like. Apple could easily change the agreement to only provide support services for their systems and not OS X itself. This isn't even about money, this is about ego within Apple.

[UnixSystemsEngineer @ Nov 18th 2008 8:44PM]

I've never called Apple support before, but they probably don't even need to modify their contract to allow this - they could probably just ask for your Mac's serial number, and if you provide an invalid one, refuse you support.

I don't even think the anti-OSx86 stand that Apple's taking has all that much to do with money in terms of direct hardware sales. Sure, they might lose a few bucks if Psystar can legally sell clones, but it's probably less than they'll spend in lawsuits fighting it. I think what Apple (and Jobs, in particular) want to preserve is the "Mac experience." Yeah, OS X isn't perfect, but once you start installing it on generic hardware, you start having far more problems than you do with Windows, which is actually tested on millions of hardware combinations. Apple wants the ability to control how good the user experience is. If there are countless unreliable clones out there, it makes the public perception of OS X worse than it "should" be -- by which I mean, take the number of bugs you see in OS X on a Mac, and multiple it by 10. Or 100. It absolutely will tarnish Apple's reputation, and won't do anything to help them -- $129 a copy won't make up for the damage that unreliable clones would cause.

[muchu @ Nov 18th 2008 7:21PM]

I don't understand how apple can be allowed to only allow it's OS to be used on Apple machines, but Microsoft can't bundle Internet Explorer with new versions of Windows because its 'teh monopolistic!!!1'

[dcoaster @ Nov 18th 2008 7:23PM]

So true. So logical. So correct. Amen my friend.

[jonchwong @ Nov 18th 2008 7:30PM]

*claps*

[Ted @ Nov 18th 2008 7:31PM]

Without getting into too much of a history lesson here Microsoft was found to be a monopoly who abused their monopoly status. The US DOJ was able to prove Microsoft had used bundling and predatory licensing agreements with OEMs to unfairly (under US law) compete. Apple does not have a monopoly on computers so they are basically free to do whatever they want. If Apple had 90% market share they would be subject to different rules than they are having 8% market share (or whatever the number is this week)

Also, Microsoft is free to bundle IE with Windows. They simply have to allow it to be removed and allow the OEM to ship a competitors product.

[UnixSystemsEngineer @ Nov 18th 2008 8:33PM]

It's pretty simple. Microsoft was not convicted of being a monopoly, but of anticompetitive behavior -- abusing their monopoly.

They forced hardware vendors to pay them for a license for a Microsoft operating system *even on systems that had no Microsoft software*, as terms of being a reseller. They subsequently signed a consent decree saying that they wouldn't engaged in these kinds of practices anymore. Bundling IE with Windows in order to drive Netscape out of the browser market was really just the straw that broke the camel's back in terms of the boatloads of illegal behavior they engaged in, particularly in the 90's.

[Lucas @ Nov 20th 2008 1:01PM]

you are talking about two different things. Computer Hardware has to have an OS or it's just a box of wires and boards. so this is a case of tying being needed. the degree of tying was the issue. Can Apple strongly restrict what hardware is tied to their OS software. The judge says yes. They can.

with the Internet Explorer issue, Microsoft was trying to demand that all systems that were preinstalled with Windows have IE on them and ONLY IE on them. The companies were not to put any other web browser on the systems. Because IE is totally not the same as Windows in functionality, the courts said that was abusive tying.

a parallel would be of Apple said that you couldn't use Firefox, Entourage etc but that you have to use Safari, Mail etc that comes with the software.

[OCEAN 'CLAK' 20th @ Nov 18th 2008 7:24PM]

yes 'i' like it no more crappy bootleg hackintoshes thank you judge steve jobs is proud, people will to buy real macs now

[JAY JAY @ Nov 18th 2008 7:30PM]

I say this was an "under the table" deal with apple. lol j/k.

[Testies, Testies, 1, 2... 3? @ Nov 18th 2008 7:38PM]

Is that what you look like when you go "under the table" ?

[Uncontrol @ Nov 18th 2008 7:32PM]

So when can we start suing every company that makes software for Windows but not for Macintosh? I'm sick of all those games being tied to Windows!

Apple markets OS X as an "upgrade" to your current Mac. Apple won't care if you buy OS X and run it on a PC you have yourself, but when you start selling these machines en masse you're asking for trouble.

[LonnieDvD @ Nov 18th 2008 7:38PM]

Psystar might as well give up now!!

[Lucas @ Nov 20th 2008 1:02PM]

regardless of the legal stuff, I would have never bought on of their systems. I live in California and I'm not going to ship my computer across the country to be fixed by them under their warranty. it is worth it to me to pay the extra to be able to walk down the street to my Apple store and have them fix it and give it back to me the next day if not sooner