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Psystar Argues Its Florida Case Should Stay There - Updated
Saturday, September 19 2009 @ 02:07 PM EDT

Psystar has filed its Memorandum in Opposition [PDF] to Apple's Motion to Dismiss or Enjoin Prosecution of the Florida action Psystar recently initiated.

Psystar claims that the California case cannot possibly include Snow Leopard because "put simply and starkly -- neither Snow Leopard nor the Psystar computers that run Snow Leopard existed when it was filed." Also, Psystar claims that Snow Leopard cannot be included in the California action because Apple had not registered a copyright for Snow Leopard at the time it filed its California complaint. If Apple wants the two cases joined, Psystar argues, or wants to make arguments about preclusion on the antitrust claims, it should go to Florida and file a motion there:

It is within this Court’s power to enjoin prosecution of a suit in a different federal forum. But this should be done only when the second suit involves the same claims, the same facts, and the same parties to such a degree that, in this Court’s discretion, it would be a waste of the federal judiciary’s resources to have the cases proceed in parallel. An injunction barring Psystar from prosecuting the Florida case would be appropriate if that case were simply a mirror image of this case, raising the same legal questions on the same evidence. But the Florida case is nothing like that. The Florida case concerns a new Apple product, Snow Leopard; a new series of Psystar products, including both computers running Snow Leopard and dongles permitting end users to run their own copies of Snow Leopard on their own non-Psystar computers; a new virtualization technology developed by Psystar; a new license for Snow Leopard with at least four major differences from the Leopard license affecting everything from choice of law to the enforceability of the license to whether the first-sale doctrine and § 117 apply; and entirely new market definitions for the antitrust claims.
Emphasis added. So Psystar is selling USB sticks so you can run Apple virtually on whatever computer you already have? What's the real deal here? Non-Psystar computers? I thought they just told us they were entering the high-end hardware market with Snow Leopard. It's so hard to keep up, when everything Psystar keeps changing.

Well. OK. USB sticks. The question is whether the Psystar code on the sticks is legal, but my other question is why would anyone buy that? How badly do people want to buy Mac OS X Snow Leopard plus the Psystar USB stick plus hardware not designed to work specifically with Snow Leopard when the owner of the copyright says you are infringing? What's the point? Why *not* just buy a Mac? Ain't nothing like the real thing, the song says, and it's true. It doesn't seem a very tempting business proposition, more a legal workaround. And if what you are selling is now a virtualization USB stick, what happened to Psystar's first sale argument?

Here are the filings:

09/18/2009 - 139 - MOTION File Document Under Seal filed by Psystar Corporation. (Camara, Kiwi) (Filed on 9/18/2009) (Entered: 09/18/2009)

09/18/2009 - 140 - MOTION File Document Under Seal filed by Psystar Corporation. (Camara, Kiwi) (Filed on 9/18/2009) (Entered: 09/18/2009)

09/18/2009 - 141 - Memorandum in Opposition re 138 MOTION to Dismiss OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES filed byPsystar Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Camara, Kiwi) (Filed on 9/18/2009) (Entered: 09/18/2009)

[ Update: Psystar has now filed "additional" and/or "corrected" exhibits to this memorandum in opposition, all totally redacted. I have no idea which ones they intend to "correct" that way, if they mean any of the above. I'll try to find out. Meanwhile, here are the filings:

09/19/2009 - 142 - EXHIBITS re 141 Memorandum in Opposition, (Corrected Copies) filed byPsystar Corporation. (Attachments: # 1 Additional Exhibit, # 2 Additional Exhibit)(Related document(s) 141 ) (Camara, Kiwi) (Filed on 9/19/2009) (Entered: 09/19/2009)

- End Update.]

Here's how Psystar makes its argument about copyrights and why Apple should not be allowed to include Snow Leopard in the California action:

Apple’s amended complaint further cannot be construed to extend to Snow Leopard because Apple had not registered any copyright in Snow Leopard before filing the complaint and, in fact, has not registered its copyright in Snow Leopard as of a search conducted on September 14. See Amended Complaint at ¶ 26 (listing copyright registrations); Ex. F (Affidavit of Jane Dryer re: search at copyright office). Copyright registration is a prerequisite to any action for infringement. 17 U.S.C. § 411(a) (“no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title”); Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1211 (9th Cir. 1998). When a plaintiff files an infringement action based on an unregistered copyright, the appropriate remedy is dismissal of the action. See Jefferson Airplane v. Berkeley Systems Inc., 886 F. Supp. 713, 714–17 (N.D. Cal. 1994). At a minimum, the plaintiff must file an amended complaint alleging the registration, see Zito v. Steeplechase Films, Inc., 267 F. Supp. 2d 1022, 1025 (N.D. Cal. 2003) — something that Apple has not even sought to do and that it should not be permitted to do at this late hour.
Of course, as the end of the argument admits when saying Apple should at least have to file an amended complaint, sometimes courts do let you do exactly that. I simply can't imagine any court denying Apple a chance to do that, under these circumstances. And here's why else I think the copyright argument should fail. First, Snow Leopard is an upgrade, dependent on Leopard to even run, I've read. Anyway, Apple already told the court that in its California complaint, it asked for an injunction against Psystar putting *any* Apple software on *any* non-Apple hardware. That seems to cover any new products as well as all the old ones, not just Leopard. And the law doesn't require you to file for a copyright before you release a product. If Apple didn't mention Snow Leopard by name and attach a copyright registration at the time it filed its complaint, it's obviously because it wasn't released yet. Courts don't generally allow you to play gotcha if your intent is infringement. Clearly, Apple intended all its copyrighted works to run on only Apple hardware, and that's the basis for the litigation.

Plus, while it is true you have to register a copyright to go for an infringement action, it's a bit more complicated. After all, you do already have the copyright, whether you register or not, and the courts don't treat that like chopped liver. The advantages to registering include what kind of damages you can ask for, statutory -- like the RIAA -- or whether you have to prove actual damages, which is harder, and also if you register first you can ask for your attorneys' fees. As for damages, how much money do you think Apple expects to get from this turnip at this point? I've never heard you can't ask for an injunction if you haven't registered. And it is possible that Apple registered a draft prior to publication of Snow Leopard. Here's a FAQ where the US Copyright Office explains how it all works, including these words from its linked paper, Copyright Registration [PDF]:

Copyright Registration

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copy right. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration.

Among these advantages are that "if registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner." So, while I'm not a lawyer, it seems to say that if you have three months to register a new work, Apple still has time to file. If Psystar quickly infringed before they could do it, does that make it home free for Psystar? I can't imagine a court so ruling. But that seems to be what they are arguing. Here's the actual statute that I think applies:
§ 412. Registration as prerequisite to certain remedies for infringement

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(b), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

I've marked the pertinent parts. It reads to me that Apple had a month from learning of the infringement to file or 3 months after first publication. Doesn't it read that way to you? I wonder why Psystar would even raise it as an issue. But it's possible I'm missing something. The referenced 106(a) is worth reading. It's about the right to attribution and integrity (visual art), and if I were Apple, I'd use it too, these parts, if only I could:
A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

That's the very heart of what is offensive about Psystar's actions, to me. I know it doesn't apply, but it feels like it should.

Psystar argues that discovery is over in California, so it's too late to go into Snow Leopard issues. But there are many reasons why that is unlikely to be accepted. The first is that Apple has asked for a reopening of discovery to allow limited discovery about what code Psystar is using to get Snow Leopard to run on non-Apple computers.

Also, Apple has accused Psystar in its motion of being ... well, to put it kindly, lacking in forthrightness in discovery:

Psystar deliberately concealed its intention to run Snow Leopard on its computers despite being relevant to Apple’s claims and responsive to many of Apple’s discovery requests.
In other words, if Psystar misled Apple into thinking it was *not* going to sell Snow Leopard, then did it anyway, how much is the court going to like the argument that the copyrights didn't get registered on time, even if it were so? Or that it's too late for discovery about Snow Leopard? If Psystar tried to snooker Apple, why would a court reward that?

And remember that Psystar has already been sanctioned $5,000 essentially for Psystar's CEO not being truthful at a deposition. There's water under this bridge that might incline a judge to believe Apple over Psystar, frankly. From AppleInsider drizzle's transcript of the hearing excerpt, beginning with Apple's attorney:

MS. BOROUMAND SMITH: Sure. So back in March, we had a 30(b)(6) deposition of Psystar’s CEO, Rudy Pedraza. At that deposition, we asked him whether he knew what the dsmos kernel extension was, whether Psystar used the dsmos kernal extension –

THE COURT REPORTER: Slow down just a little for me.

MS. BOROUMAND SMITH: I’m sorry. And similarly, we asked him about the Apple decrypt kernel extension and whether or not Psystar used that kernel extension: The answers to all of those questions were “no.” We then –

THE COURT: Stop just a second.

MS. BOROUMAND SMITH: Yes.

THE COURT: That’s totally false, isn’t it?

MR. CAMARA: Well –

THE COURT: I mean, sounds totally false based on what I’m hearing today that that testimony was just false.

MR. CAMARA: Well, here’s what happened. They – the people at Psystar — well, I won’t defend that, Your Honor, I think those answers were false.

THE COURT: All right.

MR. CAMARA: Coming from a 30(b)(6) deponent.

THE COURT: All right.

MR. CAMARA: Robert Pedraza at the business was in charge of this, but, certainly, Rudy Pedraza should have had that information at the 30(b)(6) deposition.

But lawyers have to say something. That is what they are paid to do, to present the client's best case, and this filing is exactly that, even if you know it will fail in the end. As you can see, though, lawyers are not supposed to help a client to lie to the court, and you see in this excerpt that Psystar's lawyer wouldn't go as far as the client, and that's what a good lawyer does, refuse to defend a lie to the court. However, the same lawyer, according to Apple, when asked if Psystar was planning to sell Snow Leopard refused to answer the question. Now they are selling it. If Psystar planned to sell and simply danced around the questions, they are probably now in very deep do-do. But here's Psystar's argument, so you can see both sides for yourself:
Apple controlled the schedule for the release of Snow Leopard. Apple elected not to take steps to add Snow Leopard to this case by seeking a late pleadings amendment. Apple elected not to raise the issue of Snow Leopard’s impending release and its effect on the time needed for discovery at the post-stay status conference, by motion to extend the time for discovery, or at a status conference requested for that purpose. By contrast, the release of Snow Leopard was a surprise event for Psystar. Psystar did not know when Snow Leopard would be released until Apple’s public announcement of a release date. And Psystar developed its new technology — selective virtualization — in the days preceding and the week following the release of Snow Leopard. It is simply incorrect to suggest that Psystar withheld any information or code during the discovery period that might have induced Apple to seek a pleadings amendment sooner. And it would have taken no great oracular capacity to predict that upon the release of Snow Leopard, Psystar would have taken steps to get Snow Leopard running on Psystar systems. Psystar has never been opaque about its intention to continue on in its business.
Please excuse my cynicism, but isn't more likely that the new lawyer, being also a computer guy, figured out this strategy when he hopped on board? I mean, they maybe didn't know the date of the release, but they certainly knew Snow Leopard was next, and yet later in the document, Psystar says, "This is because all parties understood that Mac OS X Snow Leopard was not included in this case." Maybe because Psystar led them to think so? Anyway, Psystar holds the position that Apple was the one stonewalling about Snow Leopard, imagining that Psystar wouldn't be able to bypass its security (um, I find that hard to believe, personally, since all DRM gets bypassed if folks don't care about the law). Now, if Apple wishes to consolidate the two cases, it has to file in Florida to do so, Psystar argues. This is starting to sound like SCO hanging its star on a particular judge at the appellate level.

Here's the one Psystar argument that does seem to me to have legs:

B. Snow Leopard License v. Leopard License

Snow Leopard has a different “software license agreement” than Leopard. The different agreements create legal differences not only for Apple’s breach-of-contract claims, but also for Apple’s copyright-infringement and DMCA anti-circumvention claims. The Snow Leopard license, see Ex. D, differs from the Leopard license, see Ex. E, in several relevant respects.

Of course, one Psystar issue is first sale, whether Apple is selling or licensing. Another is whether you can get your money back:
Enforceability of the license agreement.

The Snow Leopard license agreement, unlike the Leopard agreement, states that returns of the software are governed by Apple’s online return policy, and not by the return policies of individual retailers like Amazon or Best Buy.

Psystar claims that Leopard's license doesn't give you the same level of return rights, so if they are different in those terms, the cases should be separate. The next difference Psystar raises is a difference in the terms of the licenses regarding decryption and reverse engineering. Snow Leopard's is more strict. And then the choice of law clauses are different. So Psystar sums up:
In short, the differences between the license agreement that applies to Snow Leopard and the agreement that applies to Leopard make this case and the Florida case quite different legally.
This is at least a rational argument, and it's possible a judge would agree.

And Psystar explains the difference in how it gets non-Apple hardware to run Leopard versus Snow Leopard:

C. Virtualization v. Hook Function

The method by which Psystar computers run Mac OS X is completely different for Snow Leopard than it was for Leopard. For Leopard, Psystar computers invoked a particular Apple function [redacted] to cause Mac OS X to [redacted] function properly. This was accomplished through the Psystar-written kernel extension OpenCojones.kext. For Snow Leopard, Psystar uses new code to instead virtualize (that is, simulate) parts of the system management chip (SMC) to “convince” Mac OS X that it is running on Apple hardware. Virtualization like this is the backbone of a large part of the modern computing industry; indeed, it is how Apple’s Macintosh computers are able to run Windows and Windows applications. See, e.g., http://www.vmware.com/ techonology/virtualization.html (description of virtualization from the leading company in the field, VMware). As this brief description makes clear, the Psystar technology in the Florida case is entirely different from the Psystar technology at issue here.

If you want to run an operating system by virtualization, why do you need Psystar? Maybe some of you can explain that. But the real question is, is the code Psystar has written legal? Indeed, look at the next description of the USB sticks Psystar is selling:
D. New Psystar Devices

One of the issues to be litigated in the Florida case is the legality of Psystar’s “dongles” (an industry term in wide use). Psystar’s dongles are USB sticks containing virtualization software that allow end users to run Mac OS X on computers of their choice, not just computers purchased from Psystar. The end user would buy a dongle from Psystar and a copy of Mac OS X from Apple or a reseller like Amazon or Best Buy and would then be able to run that copy of Mac OS X on their personal non-Apple computer. Psystar has worked out a design for a dongle that it intends to test, manufacture, and sell in the near future, possibly depending on the progress made in the Florida action. The dongle, of course, would be an entirely new product that is different in kind from the Psystar computer systems at issue in this action.

See what I mean? Doesn't it look like Psystar knows that the California case is lost, and so it came up with a virtualization strategy and hopes to get a new start in Florida selling you virtualization USB sticks? Of course, the question remains, as Psystar itself admits, is the code on those sticks legal?

  


Psystar Argues Its Florida Case Should Stay There - Updated | 269 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here, Please
Authored by: TheBlueSkyRanger on Saturday, September 19 2009 @ 02:14 PM EDT
Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

snow leopard not an upgrade
Authored by: Anonymous on Saturday, September 19 2009 @ 02:15 PM EDT
I don't think you need to install Leopard to install Snow Leopard. It should
install just fine on Tiger OS as well.
On the outside, it looks like a simple upgrade, a point release, a service pack,
if
you like, but it's actually a very extensive rewrite. ars technica has the
definite
review (about 500 pages -just kidding, but a really long write)
I always smile when everybody goes "oh, it's now so much snappier"
after a new
install, but the speed gains are imo not just incremental, but phenomenal.
(agreeing with all the rest you write)

[ Reply to This | # ]

News Pick Discussion Here, Please
Authored by: TheBlueSkyRanger on Saturday, September 19 2009 @ 02:16 PM EDT
Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Off Topic Here, Please
Authored by: TheBlueSkyRanger on Saturday, September 19 2009 @ 02:18 PM EDT
Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Wow! You Mean I Can Run Snow Leopard On My 9 Year Old Machine?!?
Authored by: TheBlueSkyRanger on Saturday, September 19 2009 @ 02:23 PM EDT
Hey, everybody!

So, I have this tower. It hasn't seen use in, like, seven years. It has WinMe
on it (and the readers say, "And that's why it hasn't been used in seven
years").

So, I can pick up this dongle and run Snow Leopard on this 700Mhz 256Mb machine
that can't boot from a USB without a floppy with the driver on it.

I'll take two!

Is this really about rewriting software licenses, or is it just to misrepresent
OS X so badly, no one will by an Apple computer without Windows installed
instead?

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Lots of smoke, where are the mirrors?
Authored by: Anonymous on Saturday, September 19 2009 @ 03:00 PM EDT
> a new license for Snow Leopard with at least four major differences
> from the Leopard license affecting everything from choice of law
> to the enforceability of the license to whether the first-sale doctrine
> and § 117 apply;

I noticed two minor changes of wording, but since Apple publish as
pdf - fourteen languages in one doc, or in an rtf embedded within
the installer app, doing a diff is left as an exercise for the reader.

PJ > If you want to run an operating system by virtualization,
> why do you need Psytar? Maybe some of you can explain that.

If you want to run MacOS on a virtualized Mac, that VM must provide
the parts that Psystar provide to make the system appear like a real Mac.
Hackintoshers report variable success in this exercise. There were
earlier reports (I'll try & find a link) that 10.6 server would permit
virtual MacOS machines to run, only on Mac host hardware running
MacOS Server . But this feature has not appeared in the first release
of 10.6 server, possibly due to ongoing negotiation (cf. Google Voice)
with the VM vendors to dissuade the "Psystarish" features from
emerging
on non-Mac host hardware.

> The end user would buy a dongle from Psystar and a copy of
> Mac OS X from Apple or a reseller like Amazon or Best Buy and
> would then be able to run that copy of Mac OS X on their personal
> non-Apple computer.

Uhuh. Seems to this grasshopper that would be sooo easy for Apple
to break at every minor point upgrade. (cf. Palm Pre vs. iTunes)
I suspect Apple are already doing that, see the EFI-X users forums.
And if anyone thinks a dongle is the "easy" way to go, just have a
read of the EFI-X users forums, urls following are deliberately not clicky
http://www.efixusers.com/forumdisplay.php?f=3
See any post "removed for legal reasons"? See why
http://aarghaknot.wordpress.com/2009/08/26/efi-x-vs-boot-132-and-chameleon-
update/

[ Reply to This | # ]

EFiX Usb Dongle
Authored by: Anonymous on Saturday, September 19 2009 @ 03:42 PM EDT
I assume the USB Dongle Psystar is talking about is the one produced by EFiX. See Engadet's reporting about EFiX.

[ Reply to This | # ]

Whose code is it?
Authored by: electron on Saturday, September 19 2009 @ 04:32 PM EDT
> Well. OK. USB sticks. The question is whether the
> Psystar code on the sticks is legal

Whose code is it?

Isn't it something written by Applesoft not by Paystar?

Doesn't Applesoft own the copyrights to this code?

This is Applesoft code intended to be installed onto Apple hardware, and
appropriately licensed.

Why is this case taking so rediculously long in the USAian court?

Surely all Applesoft should have to do is prove copyright ownership, and that
they've directed Paystar to cease and desist, and then the court should smack
Paystar down... hard for pirating Applesoft's software for pecuniary gain.


---
Electron

"A life? Sounds great! Do you know where I could download one?"

[ Reply to This | # ]

Why does Apple *sell* its OS in the first place?
Authored by: Anonymous on Saturday, September 19 2009 @ 04:43 PM EDT
The point I do not understand:

Why does Apple sell its OSes in the first place?

Why doesn't Apple just sell you a Mac, and hand you, or put up for download, a
DVD with a one liner license:
"This is a copyrighted work. You may not copy it, except onto the hard-disc
of Apple Computers, and then into their memory for execution"

Shouldn't all these troubles go away then?

To the customer, this would translate into:
"Buy an Apple, then get free upgrades or replacements of lost media for the
life of the machine. Your hard disk crashed? No hassle. Copy the OS from the
hard-disk of your neighbor, and restore your personal files from the backup (You
did make a backup of your personal directory, did-you!?).

Macos does support this already. One Mac will boot off the disk image of another
Mac without a problem.

Or download a current system from Apples Webservers using the Live-Boot
installer disk.

This would be a strong incentive for customers that buy into the "it just
works" philosophy.

I cannot imagine that the OS upgrade business generates so much revenue for
Apple to forego this strategic advantage over the competition from Microsoft
that cannot use this business model because they do not sell computers.

And it should end all the legal problems, shouldn't it?



[ Reply to This | # ]

The Canonical Psystar - Paystar aren't the same thread
Authored by: Anonymous on Saturday, September 19 2009 @ 07:27 PM EDT
For the benefit of those who cannot see the irony induced
by one of the simplest typos, or that people may be
deliberately mispelling the computer vendor's name to
expose their ambition...

Expressions of regret to the real Paystar may be posted here.

[ Reply to This | # ]

Why want to run OS X on non-Apple/non-Psystar hardware?
Authored by: Anonymous on Saturday, September 19 2009 @ 08:12 PM EDT
I can tell you one reason, at least... I build my own PCs. Last time I looked
into building a Mac clone, it was next to impossible to get the parts--and the
ones that one could get were extremely expensive (read: overpriced for their
capabilities). And if I'm building my own anyway, why would I *buy* a Psystar
system just to run OS X on it? (Assuming that is, that I wanted to run OS X in
the first place.)

[ Reply to This | # ]

I can't understand Psystar's Business Case
Authored by: The Mad Hatter r on Saturday, September 19 2009 @ 10:04 PM EDT

And that bothers me. I don't see that the market that they claim they are
selling into exists in large enough numbers to make a business case.

And if I'm right, why are they doing it?

The only thing I can come up with is that there's money somewhere. Whether the
money is in selling Hackintoshs, or the money is in filing law suits, or some
other place that I don't know about, it's there somewhere.


---
Wayne

http://crankyoldnutcase.blogspot.com/

[ Reply to This | # ]

Sharing Technological Innovation
Authored by: sproggit on Sunday, September 20 2009 @ 03:45 AM EDT
In trying to think about the relative arguments in this particular case, I tried
to come up with contrasting ways that technology may or may not be shared by the
originating company. By way of examples, I thought about the following:

1. Iomega and the Zip Drives
Back in the time when the "standard" PC came supplied with a 3.5"
"floppy" disc drive and a lucky few had a CD-ROM drive, Iomega came up
with the 100Mb Zip drive. Had they wanted to, Iomega could have licensed their
technology to major manufacturers such that the 3.5" drive was replaced
with the Iomega alternative. They *chose* not to. Though I don't know the
specifics of their business, I do know that Iomega retained ownership of the
technology and, because of their conscious decision to restrict access to it,
set their business accordingly.

2. Sony & BluRay vs Toshiba and HD-DVD
By contrast, when Sony and Toshiba went head-to-head on the "next
generation" of DVD-style media, a critical part of their business model
included the need to have as many "partners" on board as possible.
Both companies knew that the only way their design would win the format war
would be to license it to anyone who wanted it, and to encourage content
providers to adopt it.


What is common to these two examples is the fact that the companies involved all
developed and executed a business strategy based on what they were willing to do
with their technology. All three companies involved knew that their customers
could choose to purchase their technology or not and made their strategy
accordingly.

It seems to me [and IANAL] that Apple made a similar decision. They have chosen
to build a complete, hardware+software product offering. Their Unique Selling
Point is the reliability, simplicity and ease-of-use of their systems. Apple
have chosen to not license or release their software for other manufacturers, in
much the same way that Iomega chose note to license their Zip drive technology.

Surely, that's their choice?

If Apple wanted to license their software to run on other hardware, then they
are of course free to do so. The fact that they haven't might be annoying to
Psystar, but surely they have that right to choose, just as we have the right to
buy or not buy their offerings?



[ Reply to This | # ]

"...because Apple had not registered a copyright..."
Authored by: tiger99 on Sunday, September 20 2009 @ 03:51 AM EDT
But copyright automatically existed in the US and all other countries where "implied copyright" law exists, from the moment Snow Leopard was created! Formally registering copyrights is not required anywhere in the world to make them effective, it is only a means of making it easier to prove ownership. Some countries may need the ©, date etc, but many, with implied copyright, do not even need that.

So unless Psystar are actually disputing ownership of Snow Leopard, how does that allegation help them?

IANAL

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Psystar Argues Its Florida Case Should Stay There
Authored by: Anonymous on Sunday, September 20 2009 @ 03:58 PM EDT
The probable reason why customers would go down this route is the cost of Apple
machines. Even the top end ones (£2000 plus this side of the Atlantic) seem to
use a pretty basic graphics card (about £50).

But Hey Psystar!

Why not just create a linux distro that clones Apple's look and visible
functionality as closely as legally poss and run your own computers with that?

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Psystar Argues Its Florida Case Should Stay There
Authored by: Anonymous on Monday, September 21 2009 @ 02:30 AM EDT

Well. OK. USB sticks. The question is whether the Psystar code on the sticks is legal, but my other question is why would anyone buy that? How badly do people want to buy Mac OS X Snow Leopard plus the Psystar USB stick plus hardware not designed to work specifically with Snow Leopard when the owner of the copyright says you are infringing? What's the point? Why *not* just buy a Mac?

What in the world has gone wrong in your head? Once you were the front fighter for freedom. Now you've become a defender of a company that would make Microsoft look like a sweet boy, had they had MS's size.

The point, of course, is that the OS should never be allowed to be tied to the hardware, and any way of untying it, should be cheered along, not shot down.

You have become the enemy of freedom. Sad thing really, you did such a great job against SCO.

*bookmark deleted*

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Deja Vu all over again
Authored by: Anonymous on Monday, September 21 2009 @ 04:30 PM EDT
Since it appears that some readers & commenters here are a bit young in the
computer scene, let's all cast our minds (and research) back to 2006, where IBM
sues Platform Solutions for building machines that would run IBM's z/OS product
(alleged patent violations). Or back to the late 1960s and early seventies when
IBM and Amdahl (and others) had more than a few disagreements over IBM OSs
running on non-IBM hardware. Or back to 1969 when an antitrust action was filed
against IBM by the US DoJ ("The suit alleged that IBM [...] monopolizing or
attempting to monopolize the general purpose electronic digital computer system
market, specifically computers designed primarily for business."). (I
remember an "IBM mainframe" shop is the 1980s where the only IBM
hardware was a printer, all the rest was third-party plug compatible. Lots of
IBM software, though.)

Companies have been trying to build new hardware to run existing software for
years, and other than the influx of poorly-written patents into the mix, AFAICT
few, if any, of the arguments are new.

z!

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Here's the point, PJ
Authored by: Anonymous on Monday, September 21 2009 @ 04:44 PM EDT

What's the point? Why *not* just buy a Mac?

Maybe because commodity hardware is cheaper or has better price/performance than proprietary, closed hardware? Come on, try a little harder: you could have worked that one out for yourself, if you'd opened your mind a little.

Also, maybe somebody wants to be in complete control of his/her own computer? With proprietary hardware, you can't know what code it contains in its ROM. I think I've seen that point of view on Groklaw, it shouldn't be new to anyone here.

What Psystar is trying to enable its customers to do may, or may not, be legal; I'm not a lawyer, I'll leave that question to the courts. But it surely is trying to enable them to do something they want to do. I'd want to do it, if I ever bought into the Mac world-view. In fact, if what Psystar is doing turns out to be illegal, I'll never have anything to do with Apple's operating systems.

Morally, Apple is worse than Microsoft. At least Microsoft lets me run their software on a variety of hardware not made by Microsoft. Fortunately, Apple is less commercially successful than Microsoft, so their evil attitude does less harm.

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why buy Macs at all
Authored by: Anonymous on Monday, September 21 2009 @ 07:02 PM EDT
goto burger king linux style

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Psystar's Argument against Precluding New Antitrust Claims, Amended Documents
Authored by: Anonymous on Tuesday, September 22 2009 @ 12:44 AM EDT
Psystar begins by saying that the legal matter only involves the new matter of Leopard, but how can Apple dominate any market when the product has existed for weeks? Clearly, if Apple monopolizes anything it also includes Leopard... and Tiger and all versions of OS X for that matter. The same way that Apple doesn't know what Psystar is doing to circumvent their protection mechanisms, Psystar can't possibly know if Snow Leopard dominates anything yet. And if you didn't understand Compulsory Counterclaims, Psystar makes that quite clear: they are going to keep introducing NEW market definitions... anything that sticks:
Psystar plans to amend the Florida complaint shortly to assert further market definitions, including one defining the market in personal computers running UNIX- based operating systems. Windows is not a UNIX-based operating system. And, although there are several other UNIX-based operating systems in the market, including the various flavors of Linux, it turns out that this, too, is a market in which Apple has, and has taken anticompetitive acts...
How cute. I love that "it turn out that this, too, is a market." I wonder how many market definitions they come up: Operating Systems that come pre-installed in mostly white plastic or solid aluminum cases, Operating Systems which only provide left-click functionality as a non-default touchpad setting or keyboard combination... The options are endless.

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Get thee behind me - Psystar Argues Its Florida Case Should Stay There - Updated
Authored by: Anonymous on Tuesday, September 22 2009 @ 08:47 AM EDT
Temptation!

Just bought a netbook. XP pre-installed, but never run. Ubuntu 9.04 instead.

But a USB stick to run OSX. We have the family pack license to use Snow Lepord,
and only used two of the five licenses.

Why would I want to do it? Not putting my Mac at risk if I needed to travel to
Mexico or Canada. The Netbook, well, to lose that for a few weeks while the
feds perused it would be an inconvenience, not a catastrophe. My macbook,
that's another story.

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PJ., the same question could be asked...
Authored by: OrlandoNative on Tuesday, September 22 2009 @ 12:29 PM EDT
...of linux; or even of those "appliances" that have a linux base.

Some people like to tinker. If snow leopard "works" on Intel based
boxes; there are always folks who are going to want to "try it out" on
something they *already* own.

Software has *always* been an odd "product". In an
"unprotected" form, it's easily copied; or even installed on multiple
units. It's not like a hammer, a car, a house. It's very *nature* allows for
virtually unlimited "pirating"; curbed only by the ethics and morals
of the person who buys a copy. And the fact that *some* software is
comparatively so expensive doesn't help.

It's similar to the problem the content companies (music and movies) try to
address.

In the software arena, the method of trying to impose ethics and morals in end
users takes the form of the EULA's. Probably no one really likes them, even the
software vendors, but how else do you really get folks to shell out hundreds or
thousands of $ for a copy for each machine they have? Especially since it's
just a matter of moving a CD or DVD from one computer to another for 30 min or
so to do an install?

Even EULA's and license keys didn't "solve" the problem forever;
that's why we now have "Windows Genuine (Dis)Advantage".

The only way to really "solve" the problem is to change basic human
nature. Or, one could minimize it by charging so little per copy that it's just
as easy to pay as to "steal".

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One thing would solve most upgrade desires on the Mini
Authored by: Anonymous on Tuesday, September 22 2009 @ 03:29 PM EDT
Frankly, if Apple were to put an eSATA port on the back of the Mini, there's all
sorts of file-serving joy it could do with a port-multiplier chassis.

Home media streaming works just fine over USB, but it would be nice to be able
to do maintenance at SATA speeds. Most home LANs aren't going to have heavy
access to all spindles at once, so sharing 3.0Gb/s over 8 or even 16 spindles
will be just fine. (It's not like all USB 2.0 ports have a unique 480 Mb/s
channel....)

Maybe I'll detach the optical drive and stick a SATA cable out one of the vent
slots. Although the drive mounting in the Mini is a little... special.

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Psystar Argues Its Florida Case Should Stay There - Updated
Authored by: Anonymous on Tuesday, September 22 2009 @ 04:19 PM EDT
"...by name and attach a copyright registration at the time it filed its
complaint,..."

Do you happen to remember in the SCO saga, where it was asked to provide with
specifity the files that were infringed?

Well, I haven't seen the list of copyrights Apple listed in their complaint, but
I am willing to bet you, there were a lot of files in Apple Leopard with
copyrights filed that are included in Snow Leopard. One doesn't start with an
absolutley brand new set of files with an update of a software product. An
awful lot of it, are modifications of existing files in older products. Sure,
there may be some brand new stuff, but that doesn't change the fact that
previously used files in the new OS are still covered by existing copyright.

Tell you what, I'll give you a million lines of code as not protected by
copyright, but the other two million lines of code are covered by existing
copyright, and you can't use them without infringing. Now, try to put together
an OS. Why the heck do you think the Linux crowd has been so nitpicking about
the GPL and contributed code. Sure, you can code around stuff. Easier said
than done. If MS would get off it's fat .... and document what they have
covered with patents, they could get together and work around. But as long as
MS refuses to do that, they have unclean hands, in my personal opinion. (Hate
to think where those hands have been.)

</rant>

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