"Theory #2, presented for the first time to my knowledge by Stephen Withers at ITWire is that Psystar is a front company for Apple."

That's an unprovable assumption and it really does sound stupid. Is Steve Jobs a time traveller from the 25th century? Please read onto page 2!!!

It could be that Apple sent a cease and desist letter the very day the news broke. At this very moment, lawyer letters could be criss-crossing in the postal service.

Apple doesn't have to hit the courts immediately to defend their IP. Just sending a letter is enough. Eventually they may have to sue, but they're probably happy to trade "no you can't" "Yes I can" letters for awhile.

In this way, they can see what Psystar's results are and if they are good, then sue Psystar and start the licensing thing. If they are bad, they just sue them. The only difference is the damage award.

But this is interesting stuff. I didn't actually read my Leopard license when I got my Mac, but I would imagine that it says something to the effect that you're not allowed to install this software on a non-Apple computer. If this is so, Psystar might argue that some kinda fair-use something-or-other does not allow Apple to claim that limitation.

Since they presumably purchase Leopard licenses at retail, there is no damage to Apple. Sure, Apple didn't get the hardware sale, but Apple is selling the operating system separately from the hardware.

So Apple may have sent a letter saying that the license is being violated, but then continue to trade letters without going to court. Given that there is no hardware support, Psystar has taken on a big burden. Also, the only advantage Psystar has that I can see is it's upgrade-ability, but what can you upgrade without Apple's support? They'll probably only be a niche in a niche player if they survive at all.

I think It's simple. Apple is just grinding it out slowly because there's no need to rush.

Maybe Apple is waiting to see just how well this cloner might do in the low-end-for-dirt cheap bracket. Whether folks will take them seriously. Whether they actually have any technology worth acquiring.

Apple itself has never really gone into the "Sub-Prime" price markets. Not with the Mac Mini. Hell, even the Mac LC and Classic were expensive in their day. To counter Schools compulsion to accept Microsoft's D.O.J.-contrived penance offers of free crap. To be more attractive to governments with less to spend all the time... Maybe, just maybe, Apple wants to research it in the wild - before stomping on psystar's pointy little head.

My guess is that ...

1) Apple is waiting to see if Psystar can really deliver and not self-destruct.

2) At the same time Apple is doing their homework. As I understand it there has been no challenge to this type of ULA for a long time and that it may not stand up under a serious challenge.

If Apple sues they had better be sure they will win. This probably will be a benchmark case. Apple's success is due partly to the combination of hardware and software. The OS experience could be seriously jeopardized by sub-standard hardware. From what I have seen on Gizmodo and MacWorld, the Psystar is a little lacking in the "out of box" experience as well as booting up.

Part of the power of Apple is the "experience".

Apple has taken action. People will notice how fast "Mac" got dropped from the name. That was a clear trademark violation. Pystar responded before the product shipped.

Apple couldn't take action on any licensing claims until it could claim damages. For that to happen a product had to ship. Now that the product has shipped, Apple can sue.

I think Pystar will lose any lawsuit. First, while it is true Apple sells the OS separately, the hardware subsidizes the cost of the sale. You will notice Microsoft charges far more for a full copy of Windows then it does for an upgrade. All Apple's OS sales are upgrades, thus justifying the lower price. Second, Fair-Use is 1) a very expensive defense, 2) is a loser argument when one company is depriving another company of a sale, and 3) there are DMCA issues at issue as well (e.g. circumventing Apple's DRM which protects it's OS). Third, Apple can probably successfully argue that Pystar is diminishing the good will of it's trademark because by installing Leopard there is an implication that most customers will think Apple approves of this action. Any bad will that arises in Pystar's customers' minds that happen when Leopard fails to work properly will mostly likely be attributed towards Apple. Fourth, I think the licensing argument is a strong one. Blizzard recently won a similar licensing argument.

I suspect Apple currently is evaluating the Pystar machine. It is probably checking out whether it can render the machine useless without costly and risky legal action (all legal action is risky).

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ctopher wrote:
It could be that Apple sent a cease and desist letter the very day the news broke. At this very moment, lawyer letters could be criss-crossing in the postal service.

Apple doesn't have to hit the courts immediately to defend their IP. Just sending a letter is enough. Eventually they may have to sue, but they're probably happy to trade "no you can't" "Yes I can" letters for awhile.

In this way, they can see what Psystar's results are and if they are good, then sue Psystar and start the licensing thing. If they are bad, they just sue them. The only difference is the damage award.

But this is interesting stuff. I didn't actually read my Leopard license when I got my Mac, but I would imagine that it says something to the effect that you're not allowed to install this software on a non-Apple computer. If this is so, Psystar might argue that some kinda fair-use something-or-other does not allow Apple to claim that limitation.

Since they presumably purchase Leopard licenses at retail, there is no damage to Apple. Sure, Apple didn't get the hardware sale, but Apple is selling the operating system separately from the hardware.

So Apple may have sent a letter saying that the license is being violated, but then continue to trade letters without going to court. Given that there is no hardware support, Psystar has taken on a big burden. Also, the only advantage Psystar has that I can see is it's upgrade-ability, but what can you upgrade without Apple's support? They'll probably only be a niche in a niche player if they survive at all.

I think It's simple. Apple is just grinding it out slowly because there's no need to rush.

Even if they get away with allowing it to run on non apple hardware, how do they get around this as they are obviously modify the software to get it to run.

"F. Except as and only to the extent permitted by applicable licensing terms governing use of the Open-Sourced
Components, or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or
create derivative works of the Apple Software or any part thereof."

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WetcoastBob wrote:
My guess is that ...

1) Apple is waiting to see if Psystar can really deliver and not self-destruct.

2) At the same time Apple is doing their homework. As I understand it there has been no challenge to this type of ULA for a long time and that it may not stand up under a serious challenge.

If Apple sues they had better be sure they will win. This probably will be a benchmark case. Apple's success is due partly to the combination of hardware and software. The OS experience could be seriously jeopardized by sub-standard hardware. From what I have seen on Gizmodo and MacWorld, the Psystar is a little lacking in the "out of box" experience as well as booting up.

Part of the power of Apple is the "experience".

http://updates.zdnet.com/tags/pystar.html

Although they are beefier than the mac mini. It would be nice if Apple sees this as a sign that people need a Mac tower that is upgradeable and not over $2000.00

I need three displays, which I already own, I'm using a 6 uear old G4 dual processor running Leopard, it's time to upgrade, the current offerings from Apple mean I may have to wait another year until I can afford a tower.

Even the refurbs are 2,000.00 and then I have to buy new RAM and a video card, plus $50.00 for the Airport card. It just keeps going over what I want to pay. If push comes to shove I'll have to do an iMac.

The school i work for still uses Macs, but they're under powered the board refuses to upgrade RAM due to original purchase price, even with the discount. A $499.00 mini would allow us to add RAM and meet our Mark.

The problem with Pystar is that the reports claim that they run louder than the G4's did and that they're unsupported and won't upgrade. Also the lack of MacLife is the final nail.

Eventually Apple will completely lose the school market, even with the option to run Windows, which school boards see as an endorsement of Windows and an admittance of the shortcomings of the Mac OS. I know that is wrong, but 9 of out 12 board members use PCs.

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Guest wrote:
http://updates.zdnet.com/tags/pystar.html

Although they are beefier than the mac mini. It would be nice if Apple sees this as a sign that people need a Mac tower that is upgradeable and not over $2000.00

I need three displays, which I already own, I'm using a 6 uear old G4 dual processor running Leopard, it's time to upgrade, the current offerings from Apple mean I may have to wait another year until I can afford a tower.

Even the refurbs are 2,000.00 and then I have to buy new RAM and a video card, plus $50.00 for the Airport card. It just keeps going over what I want to pay. If push comes to shove I'll have to do an iMac.

should have been: 9 of our 12 board members use PCs

It's a dark room. It's late at night. It's a large conference room with lawyers of every kind sitting cramped around it with stacks and stacks of papers, books, notes, empty pizza boxes and coffee cups. Ties are undone shirts are untucked, the men are sweaty and unshaven.

Steve Jobs is at the head of the table. Head down, face in the table.

Jobs: "No...no...no!"
Lawyer#1: "I'm sorry, we've gone over this and over this!"
Jobs: "Then we'll go over this some more!"
Lawyer#2: "What do you want from us sir??? We've been stuck in this room for weeks now. Amongst us we've reviewed every court case that's ever occurred. We're experts in our fields. We're telling you..."
Jobs: "I tell you what you're telling me!"
<Jobs stands and point his finger>
Jobs: "You're telling me everything but the one thing I need to hear! There has to be a way. There has to be a way. I'm blowing Apple's entire 20 billion dollar cash on hand wad on you guys, and you have to find me a way, damn you. Damn you all!"
Lawyer#17: "You can yell and abuse us all you want sir, but we're telling you, as much as we'd like to find a way, there's no legal way you can claim a right to kill everyone at Psystar as well as those who bought from them!"

My theory: Psystar computers are so bad (Fan louder than a 747, for instance) that the chance of real success is zero. And once stuff any Mac has, like a Firewire port are added, they become more expensive than a Mac mini.

So why sue, why even bother? Anyone who buys a Psystar is a certified moron, and deserve exactly what their getting.

So far as losing their intellectual property by not suing? Unless you mean the EULA is their intellectual property, they are not suddenly going to lose their OS X copyright -- they don't have to sue to keep it for the next 95 years.

In this day an age, everyone is worried about security. The only way to keep up is with patches, regardless of platform or software product. I get the impression it is going to be difficult for Psystar to support this in the long term. I see they're building patches as I post this.

When I buy a new Apple, I also expect it to last for years and therefore the OS and Apple software legally upgradeable. Even if the latest OS isn't a huge improvement over the last major release, I like many other owners want it regardless.

My last issue is comparing this machine to a Mac Mini... it is in a totally different category. I believe anyone buying a Mac Mini is well aware of the limited expansion capabilities before the final sale is made. And yet they still buy because they have now come to the realization that the machine is well built (like the more reliable cars on the market) and if they need to add RAM they can. Swapping out processors, video cards, hard drives, DVD drives are of little or no interest for them and a totally different demographic.

I think Psystar is barking up the wrong tree, go after the developer and gaming market - heck it's much cheaper than a Mac Pro and those using it will figure out a way to do the upgrades themselves.

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Guest wrote:
Apple has taken action. People will notice how fast &quot;Mac&quot; got dropped from the name. That was a clear trademark violation. Pystar responded before the product shipped.

Apple couldn't take action on any licensing claims until it could claim damages. For that to happen a product had to ship. Now that the product has shipped, Apple can sue.

Apple can probably successfully argue that Pystar is diminishing the good will of it's trademark because by installing Leopard there is an implication that most customers will think Apple approves of this action.

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Guest wrote:
So why sue, why even bother?

Apple does not immediately have to defend its IP rights. It can, as mentioned, supra, issue a cease-and-desist letter and, for a time, attempt to negotiate its dispute with Psystar. However, Apple must be diligent in defending its rights, once it right to sue matures and the infringer has changed its position in reliance on Apple's inaction. Letters of demand and negotiation will only go so far in blocking the legal doctrine known as laches. There is no bright line or certain period of time, and a company or person does not need to defend against every act of infringement no matter how insignificant. However, where, as is the case with Psystar, the infringement is notorious, the right to take action appears to have matured, the holder of the IP rights has the ability to sue (i.e., it has the money and legal talent), and the infringer is establishing a significant business on the basis of Apple's failure to act, the doctrine of laches requires the holder of the IP rights, in this case Apple, to diligently police its IP rights with sufficient speed so that Psystar is not prejudiced by Apple's delay in suing. In other words, Apple can't simply sit back and let Psystar incur the costs to establish its business, when Apple could have sought to enforce its IP rights by suing. If Psystar raises the defense of laches, Apple will have to show that it was diligent in enforcing its rights and had a good reason for delaying its lawsuit, after the moment when it was or should have been aware of Psystar's infringement.

Now, there may be good reasons for Apple's delay, Apple could be preparing its lawsuit. IP cases are highly technical and often require the work of engineers working closely with IP litigators, who have been trained as engineers, to determine the exact basis of the infringement. The engineers often to have to reverse engineer the infringing technology. This is especially true if Apple is going for a preliminary injunction, which has a high legal standard. To get a preliminary injunction, Apple must show that it will most likely suffer harm that the court can't remedy with a subsequent legal judgment or equitable decree and that it will most likely win a trial on the merits. And to show that it will win on the merits, Apple's lawsuit can't present any dispositive factual issues, where the finder of fact could reasonably find for Psystar. So pursuing a preliminary injunction could explain the delay.

It could also be that Apple has doubts about the validity of its IP rights.

The last idea, that Psystar has Apple's license to install OS X on its computers, is almost certainly not true for several reasons. First, if Apple starts licensing OS X to third parties, it may find that antitrust law will require it to license OS X to others on the same terms, if Apple should ever get sufficient market power. For the reasons that Mr. Martellaro notes, supra, it does not appear that Psystar is part of Apple. And even if Psystar does have Apple's license to use OS X, that facts needs to publicized so that others know that Psystar isn't infringing and that Apple hasn't waived its IP rights.

From the Wikipedia article on First Sale Doctrine

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Federal district courts in California and Texas have issued decisions applying the doctrine of first sale for bundled computer software in Softman v. Adobe (2001) and Novell, Inc. v. CPU Distrib., Inc. (2000) even if the software contains an EULA prohibiting resale. In the Softman case, after purchasing bundled software (a box containing many programs that are also available individually) from Adobe Systems, Softman unbundled it and then resold the component programs. The court ruled that Softman could resell the bundled software, no matter what the EULA stipulates, because Softman had never assented to the EULA. Specifically, the ruling decreed that software purchases be treated as sales transactions, rather than explicit license agreements. In other words, the court ruling argued that California consumers should have the same rights they would enjoy under existing copyright legislation when buying a CD or a book.

The First Sale doctrine only applies to reselling a validly purchased item. If Psystar was simply reselling OS X, the doctrine might have some application. But Psystar is installing OS X on non-Apple hardware in violation of Apple's EULA, which has nothing to do with the First Sale doctrine. If Apple's EULA is valid, neither Psystar or an individual can buy OS X and install it on non-Apple hardware. I also suspect that altering, the CPU's ROM to run OS X is what Psystar is doing, and that too is in violation of Apple's copyrights, and possibly its patents as well, provided that Apple's copyrights and licenses are not invalid because of some other legal principle.

Apple's engineers having to reverse engineer Psystar's alteration or use of Apple's proprietary ROM BIOS could also explain Apple's delay in filing its infringement case. Reverse engineering and the legal analysis of what the engineers discover to determine the nature and extent of the infringement takes time.

Wired referred to some case that Psystar may be relying on, but Wired did not properly cite the case, and I haven't wanted to spend the money to find it on either Lexis or Westlaw.

Except you are wrong. Goodwill is a well known trademark concept. .There have been hundreds if not thousands of cases argued over the issue. Here is basic primer on the subject. Do a Google search, and you will find thousands of hits on the topic.

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xmattingly wrote:

Sorry, my browser hasn't been signing in automatically for some reason.

I originally wrote, "Except you are wrong. Goodwill is a well known trademark concept. .There have been hundreds if not thousands of cases argued over the issue. Here is basic primer on the subject."

I should have added, See:

http://www.iusmentis.com/trademarks/crashcourse/introduction/

Do a Google search, and you will find thousands of hits on the topic. "

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xmattingly wrote:

I haven't read all the comments, (coz there are so many of them) But, the OS is based on BSD and various open source material which could also complicate matters.

then again, what do I know. I wish I could hackingtosh this quad core, sure would run faster than vista....

love the mac OS simply coz it runs on a unix derivative, and its stable... and DRM crap free. and... and... well. anyone have a solution for my quad core?


just a thought.

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geoduck wrote:
This could be how Psystar is getting around the EULA and what may be causing Apple a lot of headaches. If Psystar is buying copies of OS-X but not opening the box then they are not accepting the EULA and therefore not subject to it and can resell the software with their Clone.

Original http://en.wikipedia.org/wiki/First_sale_doctrine

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Terrin wrote:
Sorry, my browser hasn't been signing in automatically for some reason.

I originally wrote, "Except you are wrong. Goodwill is a well known trademark concept.

Do a Google search, and you will find thousands of hits on the topic. "

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Terrin wrote:
I should have added, See:
http://www.iusmentis.com/trademarks/crashcourse/introduction/

They might not be doing anything for the moment because Apple does not know if the company is going to crash and burn and they (Apple) can make that happen just by putting some hardware checks in OS X then they do not have to sue Psystar just becomes a failure. This way they do not look evil. If they go after Psystar the word Monopoly might come up very quick and they do not want that kind of publicity.

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Guest wrote:
They might not be doing anything for the moment because Apple does not know if the company is going to crash and burn and they (Apple) can make that happen just by putting some hardware checks in OS X then they do not have to sue Psystar just becomes a failure. This way they do not look evil. If they go after Psystar the word Monopoly might come up very quick and they do not want that kind of publicity.

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xmattingly wrote:
Pfft. Right. Legal &quot;expertise&quot; coming from someone who can't even tell if they're logged in or not.

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Sir Harry Flashman wrote:


By the way I just checked and it looks like Psystar is offering downloads for Apple software updates. What are the legal ramifications of that? Someone with more programming skills than mine would have to check to see if they are line by line matches for the Apple updates.

or is that BADGES?? actually even tongue in cheek be it BADGES or EULA, it's the same concept -- a license to do something what you can do anyway with or without it. as long as the original software purchase is legit, then why would the EULA be enforceable? of course, apple wouldn't be required to support it though, so maybe that's why the company has been providing its own updates. comments anyone? signed SHOOTERSROOM210

EULA? we dont need no stinkin' EULA

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gslusher wrote:
Are you an attorney experienced with intellectual property law, yourself? If you are, you should say so, so that we may learn from you. (It would appear that Nemo is probably an attorney or at least a law student.)

I tend to think Apple anticipated and has been working with PA-Semi since they switched to Intel to integrate a co-processor that would make it impossible to install OS X software on off the shelf Intel hardware. Now the own PA-Semi and all of the patents which entitles them to a much greater degree of control over their hardware. Because the hardware combination that Apple has currently is available publicly it's difficult to tell someone that they can't tell people that OS X will run on that particular set of generic PC hardware. Actually installing the OS could create a legal problem, but I think at some level Apple is aware that they won't be able to stop a company from selling a computer that happens to have everything an Intel Mac would have