I would expect a little more objectivity in the analysis of this motion to dismiss. For some, it appears to be a last ditch effort by Apple to avoid going to trial, where they would face certain death in opening up their architecture to competition (Psystar, Dell, et al).

Psystar's defense is not about Apple's "market power", but relies on the premise that Apple represents an independent market entirely (hence, its ability to charge $500 for a stick of 2GB RAM). See "small but significant non- transitory increase in price" (SSNIP).

I don't care how this lawsuit turns out, in fact I'm ditching Windows for my first Apple computer this coming Xmas. I'm just not blinded by loyalty to Apple to see the bias in this reporting. Nor should you - Mr. Martellaro - for you may be dealing with cost-competitive Apple knock-offs before you know it.

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Guest wrote:
I would expect a little more objectivity in the analysis of this motion to dismiss. For some, it appears to be a last ditch effort by Apple to avoid going to trial, where they would face certain death in opening up their architecture to competition (Psystar, Dell, et al).

Psystar's defense is not about Apple's "market power", but relies on the premise that Apple represents an independent market entirely (hence, its ability to charge $500 for a stick of 2GB RAM). See "small but significant non- transitory increase in price" (SSNIP).

I don't care how this lawsuit turns out, in fact I'm ditching Windows for my first Apple computer this coming Xmas. I'm just not blinded by loyalty to Apple to see the bias in this reporting. Nor should you - Mr. Martellaro - for you may be dealing with cost-competitive Apple knock-offs before you know it.

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Guest wrote:
Psystar's defense is not about Apple's "market power", but relies on the premise that Apple represents an independent market entirely (hence, its ability to charge $500 for a stick of 2GB RAM). See "small but significant non- transitory increase in price" (SSNIP).

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Guest wrote:
I would expect a little more objectivity in the analysis of this motion to dismiss. For some, it appears to be a last ditch effort by Apple to avoid going to trial, where they would face certain death in opening up their architecture to competition (Psystar, Dell, et al).

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Guest wrote:
Psystar's defense is not about Apple's "market power", but relies on the premise that Apple represents an independent market entirely (hence, its ability to charge $500 for a stick of 2GB RAM). See "small but significant non- transitory increase in price" (SSNIP).

Go to Fry's and buy it for $20. Only an idiot would pay $200 for 2 GB of RAM.

A link to the actual filing is

http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv03251/204881/27/0.pdf

for those interested in the actual facts. To the poster who claimed "For some, it appears to be a last ditch effort by Apple to avoid going to trial, where they would face certain death in opening up their architecture to competition (Psystar, Dell, et al). ": You are truly joking, aren't you? A motion to dismiss is not a "last ditch effort".

A motion to dismiss is the very, very first step in a court case. Apple states in its motion to dismiss that Psystar's counterclaims are so ridiculous they shouldn't even be heard in court. Normally in a court case, you make claims about facts, and then you try to prove them or at least give evidence for them, and you have to make claims that are actually legally meaningful in any way. Psystar doesn't do this. Their claims are based on pure speculation, not on facts. They contradict their own claims (like making a claim that Apple has a monopoly because it has no competitors, then mentioning Apple's competitors about three dozen times).

What Psystar had to do to survive a motion to dismiss was to make factual claims that would make Apple guilty if these factual claims were true. Saying "Apple is a monopoly" is not a factual claim. Saying "Apple sells 80 percent of all PC operating systems" would be a factual claim (although a wrong one), which would likely make Apple a monopoly if it were true (which it isn't). Psystar didn't make any such claims. Then it quoted court cases to support its case that were completely irrelevant, including other cases against Apple that haven't been decided, cases about aftermarkets where this case is about a primary market, the Digidyne case which has since been overridden and never applied in the first place (that was about a computer that could run only one OS, where Psystar actually offers its computer with different OSes), it quoted law that has since been changed, and so on.

So if Apple wins its "motion to dismiss", it means that Psystar's case is so flawed, they didn't even make a valid claim that the court should be bothered about. It's as if I went to the police and ask them to arrest you because you look like a thief. They will just laugh (because even if what I claimed was true, looking like a thief is no crime). If I asked them to arrest you because you took money out of my wallet, that would be a different thing. Psystar didn't even manage to make an allegation that is meaningful in any legal sense. That's what a "motion to dismiss" means. It means that you don't have to defend yourself against pure nonsense.

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Guest wrote:
Psystar's defense is not about Apple's "market power", but relies on the premise that Apple represents an independent market entirely (hence, its ability to charge $500 for a stick of 2GB RAM)

This discussion about RAM prices is confusing the issues anyway.

Apple sells Macintosh computers. Computers are a "market". Laptop computers are a "submarket". Macintosh computers are a "submarket". It has been upheld again and again in many court decisions that a single product (like Apple branded computers) never constitutes a "market" in the sense of competition law.

RAM for computers is an "after market". RAM for Macintosh computers is an after market. If Psystar wanted to sell RAM for Macintosh computers, Apple would probably not do anything to prevent it (Apple doesn't prevent Kingston, Crucial etc. from selling RAM for Macintosh computers), and it has been decided in some court cases that preventing competition in an after market (like the after market of RAM for Apple-labeled computers) _could_ be anti-competitive.

Psystar has brought this up in its answer to Apple's "motion to dismiss", and if you follow the link to Apple's reply, Apple has pointed out to the court that Psystar is claiming Apple has a monopoly in the "market" of Apple-labeled computers, not in any after market. Therefore, Apple's list of court cases that clearly say that Apple-labeled computers are not a "market" count; Psystar's arguments that something like "RAM for Apple-labeled computers" could be an "aftermarket" are irrelevant to the case and don't count.

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Guest wrote:
Go to Fry's and buy it for $20. Only an idiot would pay $200 for 2 GB of RAM.

You have to buy quality RAM from a reputable company. You can save a lot of money with no added risk by buying from a company like Crucial, which also lets you order by picking which computer model you have, so you don't have to match up the specs and possibly get it wrong. If you go to a place that doesn't sell quality memory, there is very little additional savings, and a much greater risk.

And on some machines, adding RAM takes a certain amount of force. Not enough force, and the RAM will not be in its proper place, and it won't work. Typically the Mac behaves as if that RAM wasn't there at all. It is quite possible that the people at the Apple Store were better doing that then you were.

Just for fun, I just checked both Apple and Other World Computing for their RAM prices for the new Macbook Pro (PC8500 DDR3). Apple is $300 for a pair of 2 GB modules, or $150 a piece. Other World Computing is $120, or $60 a piece.

I wonder why the first commenter thought they were $500 each...

I do agree that Fry's stuff can be suspect, even when name brand. Every Samsung memory chip that I got for my Apple //e's extended memory card was bad (as a set at least). The other brands were fine. I avoided Samsung products for quite a while because of this experience.

Don't take the above as advice whether to play with these companies' stock. Go ask someone who the licensed Financial Advisors won't get pissed at, probably because of the apprenticeship period they had to serve.

"I tried to purchase cheap-o memory from Fry's for TWO separate Macs... one was an G5 iMac and one a Mac Pro."

There's your problem. Like anything else in this world, you get what you pay for. If you buy "cheap-o" memory, you get junk. There are many companies that sell memory for Apple computers that will guarantee it will meet Apple specs and put a LIFETIME warranty on it as well.

If you want to buy memory from Apple, great. But there is no reason you can't buy less expensive memory elsewhere.

Dear Guest: You are correct in stating that the grounds for Apple's motion is that Psystar fails to state a claim for which relief may be granted, but you are wrong in stating that it is sufficient for Psystar to plead allegations, which, if true, would prove its case, so called "notice pleading." While notice pleading is the standard for nearly all cases, the U. S. Supreme Court in Twombly changed the standard for pleading a relevant market in an antitrust case. In addition to notice pleading, a plaintiff in an antitrust case must also plead allegations that are plausible.

In its motion to dismiss (Motion), the core of Apple's argument is that Psystar's allegations are insufficient to state a case, because they implausibly define the market for OS X to consist of OS X alone. That is, Psystar maintains that a single brand of an operating system, OS X, is a market unto itself. Psystar problem is that numerous federal courts have held that a market cannot consist of a single brand of a class of products. The only exception is that in certain limited circumstances, you can have a single-brand in aftermarket products, but since this case involves primary markets--indeed, Psystar doesn't even plead that this is an aftermarkets case--the cases, which Psystar cites, that hold there can be a single-brand market in certain aftermarket products, are inapplicable. Therefore, since the courts have uniformly held that there cannot be a single-brand market in the primary market, Psystar's allegations that Apple has monopoly or market power in the market for OS X are not only implausible, they are not legally cognizable, and, thus, Psystar's counterclaims fail to state a cause of action for which relief may be granted.

Apple also states other grounds for its Motion. Apple cites authority for its proposition that, where, as is the case with the Mac, a computer can run more than one OS, selling that computer with an OS pre-installed is selling what is functionally one product. This is important, because, to prove tying Psystar must prove, inter alia, that OS X and the Mac are two distinct products, as opposed to a hammer, which, though it consists of two parts, a head and a handle, is regarded as one product. If OS X and the Mac are functionally one product, Psystar cannot prove tying, and thus its allegations are legally insufficient.

Apple also has authority for the proposition that contractually restricting OS X to Macs is not a violation antitrust law, where, as is the case with the Mac, a computer can run more than one OS and the customer is informed about the restriction and voluntarily chooses to purchase the computer. This undercuts the intent-to-monopolize aspect of Psystar tying claim against Apple. And, if the court accepts this proposition, it will be another basis for holding that Psystar's tying claim is legally insufficient.

Apple also refers to Psystar's own pleading and actions that undercut its position that OS X is a legally relevant market. In its pleadings, Psystar states that OS X competes with Windows and Linux. Psystar also sell its Open Computers with either Windows, Linux, or OS X installed to the same customers, for the same purposes, and at competitive prices. Thus, Psystar's own statement and, more importantly, its actions utterly undermine its position that OS X is a market unto itself, where it does not compete with other operating systems.

And finally, Apple cites authority from the U. S. Supreme Court and its subordinate courts that a person need not license its intellectual property to its competitors. This authority would bar Judge Alsup for ordering Apple to license OS X to Psystar and, more importantly, states that Apple's restriction of OS X to its own computers is not per se illegal.

Against all of this Psystar cites inapposite cases that permit single-brand markets in aftermarkets but where several of the very courts deciding those cases held that their holdings don't apply to primary markets; it cites Apple's license that restrict OS X to Macs, where, at least one court has held that under the instant circumstances, such a licensing restriction does not constitute tying; doesn't address Apple's argument that, under the instant circumstances, OS X and the Mac are functionally one product; essentially ignores the evidence of Psystar selling Open Computers with OS X, Windows, and Linux all competing against each other; and, as relief, would require Judge Alsup to take the extraordinary step of forcing Apple to license OS X to it, a competitor, contrary to controlling authority and even though Apple has done nothing wrong, unless the court finds favor with Psystar's tying claim.

Though it is impossible to know how Judge Alsup will rule, and he may indeed defer deciding some or all of these matters until after the parties complete discovery and file their motions for and in opposition to summary judgment, I would on the instant record conclude that Psystar has failed to state sufficient and plausible allegations of antitrust violations and would, therefore, dismiss its antitrust counterclaims against Apple.

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Guest wrote:
And on some machines, adding RAM takes a certain amount of force. Not enough force, and the RAM will not be in its proper place, and it won't work. Typically the Mac behaves as if that RAM wasn't there at all. It is quite possible that the people at the Apple Store were better doing that then you were.

I've used OWC memory in G5's, MacPro and MacBook Pro and have never had problem with it. Years ago I also had TransIntl memory for another Mac (forget which). Also no problem.

I can understand that generic memory may not have same tolerances (especially w.r.t heatsinks for Mac Pro) and that's why I've not used generic.

Buying from a Mac-oriented supplier is the way to go.

FWIW When I have gotten aftermarket memory (for PowerMacs, PowerBooks, as well as PCs and HP printers) I've gotten it from RamJet. Have not had any problems. (OK there was that one time with the ancient HP printer, but that turned out to be a bad socket.)

It seems to me that the real issue here is the extent to which Apple can dictate to way it's software can be used. The software is licensed indiscriminatly: anyone can walk into bestbuy or an Apple store and buy a license. Let us not forget that PsyStar is legally licensing the OSX software... they're buying software and installing it on computers which they then resell. This would be totally legal if a company bought used notebooks and updated them to leopard before re-selling them. The right of apple not to license its intellectual property to competitors is moot because apple licenses the software to everyone. However, the rights of intellectual property holders is not absolute, even with the DMCA. The ultimate question here is whether there are fair-use rights involved in software. In general, most consumers think of buying software not licensing it-- and most people use software they've bought a similar fashion to other items they buy--potters' wheels, refrigerators, clothing. Even though all such items have design and engineering involved in their creation, we generally feel like we can do nearly whatever we want to them. A designer could not stipulate that when you buy a dress that it must only be washed in a maytag-branded washing machine, nor would the designer have any legal right against you if you wore a dress to the Oscars that had been washed wrong and was faded and wrinkled. Does the convention we use for software, which is technically licensed, allow companies to strip consumers of their general freedoms. Apple's license requirement that the software only be installed on Apple-branded hardware extends beyond the general protections for intellectual property, and in my opinion is unreasonable. Once I buy a license of the OS, it is not a legitimate interest of Apple's to dictate which hardware I can and cannot use the software on.

In the greater computer market, computer hardware operates in a market that is near perfect competition. Different units are separated by gigahertz, pixels, styling, etc; there are a lot of factors and a lot of variety, but ultimately a gateway can be equal to a HP or a Dell or an Alienware. With Mac's, Apple is arguing that although form a hardware perspective their computers are no different (all can theoretically run the same operating systems, and use the same components for CPU's etc) they can limit their in-house software to their computers and create a different market of monopolistic competition, similar to books (a market that allows for paperback romance novels to sell for less than $10 but can still charge hundreds of dollars for textbooks). An equal HP and Mac are not equal because of the software. This seems more like the arbitrary bundling of IE with Windows that got netscape into fiscal trouble and microsoft into legal trouble. Whether they want to admit it or not, apple has literally created a market for Macs that is separated from the general market for computers. THe market is manufactured and Apple is currently the only company to do so, and is able to do this only through its software.

None of the comparisons (i.e.buick) quite catch the unique issue. It could be a big and interesting case.

There is a better reason for buying RAM from Apple than just that people will pay more for Apple branded RAM. And I contend that one is NOT an idiot to pay more for RAM from Apple.

You people who gripe about Apple's price for RAM don't get it. The great reason for buying RAM from Apple IS THAT IT IS THEN UNDER WARRANTY IN THE MAC BY APPLE.

If you bought your RAM from Apple and then take your dead Mac to the Apple Store, Apple will never say "It's your RAM" and give your Mac back to you for you to deal with.

Personally, I always buy third-party RAM from a reliable supplier, Other World Computing. But for the less technically inclined, I now always suggest them to get their additional RAM from Apple when they buy their Mac. Apple will install it for them, and if they ever have a problem with the RAM, they won't need to have to locate replacement RAM and install it themselves. Not to mention all the additional time required troubleshooting, buying, and replacing the RAM.

A person is not an idiot if they are not technically inclined and want to just be able to take their Mac in for warranty repair and have Apple fix whatever the problem is. And for them to pay double the price of RAM at Apple for what they could get it at O.W.C. is great insurance and worth it for them (and me, so I don't have become their support tech).

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Guest wrote:
I would expect a little more objectivity in the analysis of this motion to dismiss. For some, it appears to be a last ditch effort by Apple to avoid going to trial, where they would face certain death in opening up their architecture to competition (Psystar, Dell, et al).

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Guest wrote:
I would expect a little more objectivity in the analysis of this motion to dismiss. For some, it appears to be a last ditch effort by Apple to avoid going to trial, where they would face certain death in opening up their architecture to competition (Psystar, Dell, et al).

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Zarko wrote:
It seems to me that the real issue here is the extent to which Apple can dictate to way it's software can be used.. . The right of apple not to license its intellectual property to competitors is moot because apple licenses the software to everyone. ...A designer could not stipulate that when you buy a dress that it must only be washed in a maytag-branded washing machine, nor would the designer have any legal right against you if you wore a dress to the Oscars that had been washed wrong and was faded and wrinkled....Apple's license requirement that the software only be installed on Apple-branded hardware extends beyond the general protections for intellectual property, and in my opinion is unreasonable. Once I buy a license of the OS, it is not a legitimate interest of Apple's to dictate which hardware I can and cannot use the software on.

>> It seems to me that the real issue here is the extent to which Apple can dictate to way it's software can be used.

Correct.

>> The software is licensed indiscriminatly: anyone can walk into bestbuy or an Apple store and buy a license.

Correct. There are no limitations who can buy MacOS X. There are limitations how it can be used.

>> Let us not forget that PsyStar is legally licensing the OSX software...

PsyStar is (as far as I know) legally buying boxes with MacOS X software, that they could then legally install on Apple-labeled computers.

>> they're buying software and installing it on computers which they then resell.

And these computers are not Apple-labeled, which means PsyStar has no license to install the software on those computers.

>> This would be totally legal if a company bought used notebooks and updated them to leopard before re-selling them.

If these used notebooks are "Apple-labeled", then you are right. If I bought used Dell notebooks and updated them to Leopard before re-selling them, that would not be legal.

>> The right of apple not to license its intellectual property to competitors is moot because apple licenses the software to everyone.

Apple is quite willing to license its intellectual property to competitors under the same terms as anyone else. If PsyStar has some old Apple-labeled computers in their office running Jaguar, Panther or Tiger, Apple has no problem with them upgrading these computers to Leopard. I would bet that say Microsoft, Dell or HP, all clearly Apple competitors, have at some point bought Leopard upgrades for some computers in their offices.

>> The ultimate question here is whether there are fair-use rights involved in software.

I didn't see PsyStar claiming any fair-use rights to Apple's software. And I am sure that "fair-use" rights don't mean what you think they mean. The "fair-use" defense in copyright law covers things like quoting small parts of a protected work, parody, using parts in criticism. For example, a magazine publishing a screen-shot of Leopard side by side with one of Vista to explain why one OS is better or less good than the other could claim "fair-use" rights for the screen-shots of copyrighted material.

>> In general, most consumers think of buying software not licensing it-- and most people use software they've bought a similar fashion to other items they buy--potters' wheels, refrigerators, clothing.

PsyStar is not a consumer. PsyStar is a company. There are cases where the law protects consumers, so that they won't be punished if they do things they are not allowed to do because of their wrong conceptions, or because they couldn't be bothered to read a fifty page license agreement when buying a $129 product. PsyStar is a company and has no such protection by the law. They are supposed to read the license agreement that comes with MacOS X before they install it anywhere, consult a lawyer if they are not clear about its meaning, and suffer the consequences if they get it wrong.

>> A designer could not stipulate that when you buy a dress that it must only be washed in a maytag-branded washing machine, nor would the designer have any legal right against you if you wore a dress to the Oscars that had been washed wrong and was faded and wrinkled.

Designers usually don't make such demands. You will find that in exceptional circumstances such demands will be made and will be enforceable. I would be not surprised at all if especially many of the dresses worn by famous actresses at the Oscars would come with a license agreement.

>> Does the convention we use for software, which is technically licensed, allow companies to strip consumers of their general freedoms.

That is completely irrelevant, because PsyStar is not a consumer.

>> Apple's license requirement that the software only be installed on Apple-branded hardware extends beyond the general protections for intellectual property, and in my opinion is unreasonable. Once I buy a license of the OS, it is not a legitimate interest of Apple's to dictate which hardware I can and cannot use the software on.

It is of course a legitimate and very reasonable interest of Apple. As long as their license terms are enforced, every MacOS X user is an Apple computer hardware customer. If a sale of Leopard would mean that somebody buys a non-Apple computer instead of an Apple computer, that sale would lose money to Apple. And whether this all is reasonable or unreasonable, legitimate or illegitimate: What matters is whether Apple's license terms are legal or illegal, and you don't give any reason why they would be illegal, and especially no reason why they wouldn't be binding for a company like PsyStar.

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Hengemasta wrote:
On the point of this thread, I'm glad to see the Psystar case crumbling... There are so many reasons why what they're doing is wrong on multiple levels... I would love to see this case thrown out.

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Guest wrote:

Just a small correction: The main case is that Apple complains about Psystar installing Apple's software on Psystar computers without a license (plus 30 pages worth of related complaints). PsyStar replied by making counterclaims that Apple is an evil monopolistic wrongdoer. Apple tries to get these counterclaims thrown out, the case would then proceed with Apple's claims against PsyStar alone.

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Zarko wrote:
It seems to me that the real issue here is the extent to which Apple can dictate to way it's software can be used. The software is licensed indiscriminatly: anyone can walk into bestbuy or an Apple store and buy a license. Let us not forget that PsyStar is legally licensing the OSX software... they're buying software and installing it on computers which they then resell. This would be totally legal if a company bought used notebooks and updated them to leopard before re-selling them. The right of apple not to license its intellectual property to competitors is moot because apple licenses the software to everyone. However, the rights of intellectual property holders is not absolute, even with the DMCA. The ultimate question here is whether there are fair-use rights involved in software. In general, most consumers think of buying software not licensing it-- and most people use software they've bought a similar fashion to other items they buy--potters' wheels, refrigerators, clothing. Even though all such items have design and engineering involved in their creation, we generally feel like we can do nearly whatever we want to them. A designer could not stipulate that when you buy a dress that it must only be washed in a maytag-branded washing machine, nor would the designer have any legal right against you if you wore a dress to the Oscars that had been washed wrong and was faded and wrinkled. Does the convention we use for software, which is technically licensed, allow companies to strip consumers of their general freedoms. Apple's license requirement that the software only be installed on Apple-branded hardware extends beyond the general protections for intellectual property, and in my opinion is unreasonable. Once I buy a license of the OS, it is not a legitimate interest of Apple's to dictate which hardware I can and cannot use the software on.

In the greater computer market, computer hardware operates in a market that is near perfect competition. Different units are separated by gigahertz, pixels, styling, etc; there are a lot of factors and a lot of variety, but ultimately a gateway can be equal to a HP or a Dell or an Alienware. With Mac's, Apple is arguing that although form a hardware perspective their computers are no different (all can theoretically run the same operating systems, and use the same components for CPU's etc) they can limit their in-house software to their computers and create a different market of monopolistic competition, similar to books (a market that allows for paperback romance novels to sell for less than $10 but can still charge hundreds of dollars for textbooks). An equal HP and Mac are not equal because of the software. This seems more like the arbitrary bundling of IE with Windows that got netscape into fiscal trouble and microsoft into legal trouble. Whether they want to admit it or not, apple has literally created a market for Macs that is separated from the general market for computers. THe market is manufactured and Apple is currently the only company to do so, and is able to do this only through its software.

None of the comparisons (i.e.buick) quite catch the unique issue. It could be a big and interesting case.