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Apple's Case Against Psystar Comes into Focus

TMO Reports - Apple's Case Against Psystar Comes into Focus

by , 4:30 PM EDT, October 2nd, 2008

In Apple's filing to dismiss with prejudice Psystar's countersuit revealed the tenets of Apples' strategy to win. The basis of Apple's argument is that Mac OS X and Macs do not, in themselves, create a legally plausible market, antitrust does not apply, and Apple has no obligation to share its sources of advantage.

An attorney who has been following the case, and wishes to remain anonymous, explained Apple's argument to TMO on Thursday:

"First, all of Psystar's counterclaims require the definition of a legally plausible relevant market. Second, Psystar's attempt to define the markets as OS X and OS X-capable computers do not define legally and factually plausible relevant markets. That's because the U.S. Supreme Court and all of the U.S. Circuit Courts, that have considered the issue, have rejected the proposition that an company having a monopoly in its own brand of a class of products is a violation of antitrust law. [TMO emphasis added.]

"Even Psystar's own responses admit that Apple's Mac OS X is only one brand of operating system in a vigorously competitive market consisting of Mac OS X, Windows and Linux -- where the dominant player is Microsoft. As a result, Apple has no 'market power.'

"Finally, even if Apple did have market power, according the U.S. Supreme Court and the 2nd Circuit, Apple wouldn't have any obligation under antitrust law to share the legitimate sources of its advantage in the market (for example, valid patent or copyrights) with competitors," he said.

The key to all this is that Mac OS X is just one brand of an OS, a minority OS, in a broader market, and so Antitrust issues do not apply. Apple, in its arguments, has supported these facts that are well accepted in law and confirmed by higher courts, and, accordingly, has asked that the countersuit be dismissed with prejudice.

If Judge Alsop immediately agrees, the countersuit could be immediately dismissed with serious consequences for Psystar's defense against Apple. However, Judge Alsop, with good probability, could also request more discovery to put the matter on record.

"Psystar must either file its Opposition to Apple's Motion To Dismiss on or before the end of the Court's business on October 16, file a stipulated consent to enlarge its time for filing an Opposition, or move the Court to enlarge the time for filing its Opposition. Psystar must win with its Opposition to preserve its case," he said.

Observer Comments

Show: Subjects Only | Full Comments
Close Name:Guest
Subject: tenants of Apple's strategy ??

maybe you mean "tenets"??

Close Name:Guest
Subject: Bought and Paid For

If I buy Mac OS X and if I own it, isn't it monopolizing to tell me it has to be installed on a Mac Computer and I can't installed it on any other hardware purchase by me including Psystar hardware, even when a Mac computer is not completely a build Mac own hardware. Unlike Windows or Linux that has no hardware constraints, I consider all of them software including Mac OS X, Apple is monopolizing its OS, don't that make them a monopoly.
http://www.thefreedictionary.com/monopolizing

Close Name:Sir Harry Flashman Posts: 792 Joined: 08 Feb 2007
Subject: No, you don't

"If I buy Mac OS X and if I own it"

You don't own it, read the license agreement for OX

"I consider all of them software including Mac OS X, Apple is monopolizing its OS, don't that make them a monopoly. "

A monopoly is not necessarily illegal.

Close Name:Guest
Subject:

>> Apple is monopolizing its OS, don't that make them a monopoly.

You then quote a dictionary. But this is a court case, it doesn't matter what the dictionary says, what matters is what the law says. Apple has in its filing quoted about a dozen court cases that all say the same thing: A company's product on its own is never a market in the sense of competition laws. The fact that Apple has what the courts call a "natural monopoly" in its own products has no legal meaning at all. If you want to claim that Apple has a monopoly, you have to give a _meaningful_ market in which Apple has market power. The market for MacOS X operating systems is not a meaningful market (with Apple quoting a dozen court cases as precedence) for monopoly laws. A meaningful market would be the market for operating systems, and there Apple has only about 8 percent market share and is no monopoly.

Here is a quote from a recent court decision: "If the plaintiffs were correct... a whole host of products which enjoy brand loyalty, such as Pepsi, Coca-Cola, Rolex watches, fast foods, Chevrolet, Ford, Chrysler, Volkswagen and Dodge automobiles, office supplies, ice cream, and the like would all become relevant markets for antitrust purposes. Plaintiffs ignore, however, volumes of case law which reject such a conclusion."

That is not Apple saying this, it is a judge in the decision of a similar court case. I hope that makes it clear enough.

Close Name:geoduck Posts: 1922 Joined: 30 Dec 2003
Subject:

The issue is not whether you put OS-X on your own hardware. Lots of people are doing that, quietly. Apple is not necessarily happy about it but they aren't going to raise a stink over a hobbyist with a Hacintiosh in his basement. What Psystar did is to install OS-X and then try to sell the boxes in direct competition with Apple. That is what will get them obliterated by Apple Legal.

It is similar to (and I didn't come up with this analogy) Pepsi. You can buy the mix from them and add your own water and CO2 and make Pepsi Cola. You can serve it at a wedding or party with no problem. Your local Pepsi distributor will even help you. But if you were to make your own Pepsi and start trying to bottle and sell it as OpenCola, then Pepsi is going to land on you with both feet. What's more, I doubt any court in the land would rule against Pepsi.

It's not a monopoly to want to control your own product especially when there are other similar products on the market (Coke, Dr. Pepper, Windows, Linux). It's also not a monopoly when the product (Pepsi, Macintosh) is not the overwhelmingly dominant product on the market. Lastly as mentioned above; even if it were somehow found to be a monopoly, that in and of itself does not make it illegal. Microsoft got in trouble for how they used their monopoly status, not because they were found to be a monopoly.

Close Name:mathue Posts: 7 Joined: 03 Oct 2008
Subject: Thanks!

Hey John Martellaro, give this attorney a pat on the back for giving a REAL legal interpretation (and citing) of what is going on instead of the really awful armchair 'lawyering' everywhere else.

Close Name:jwarren2001 Posts: 88 Joined: 29 Jan 2008
Subject:

Bottom line?

Psystar is gonna get F'd in the A...and rightfully so.

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