Mac clone maker Psystar last week sued Apple for a second time, charging that it illegally ties the new Snow Leopard operating system to its hardware.
Psystar also asked a federal judge in Florida to rule that the small company has the right to purchase copies of Snow Leopard on the open market and use them to install Mac OS X 10.6 on the machines it sells.
“By tying its operating system to Apple-branded hardware, Apple restrains trade in personal computers that run Mac OS X, collects monopoly rents on its Macintoshes, and monopolizes the market for ‘premium computers,’” said Psystar’s lawsuit, filed last Wednesday.
“Apple’s share of revenue in the market for premium computers - computers priced at over $1,000 - is currently 91 per cent.”
Last month, retail market research company NPD Group estimated that Apple controls 91 percent of the $1,000-and-up market, a fact that got significant play in the media and on blogs.
The antitrust angle in the new lawsuit is a repeat of Psystar’s strategy of more than a year ago, when it accused Apple of violating the Sherman and Clayton Acts. A federal judge in California tossed out Psystar’s claims last November, however.
Psystar said that the situation with Snow Leopard is completely different.
“This case raises a wholly separate set of issues [from] those in Apple Inc. v. Psystar Corp…because that case is limited to Psystar computers running Mac OS X Leopard,” the company’s lawyer’s argued. “Both the technical mechanisms used by Apple to tie Mac OS X Snow Leopard to Macintoshes and the technology used by Psystar to get Mac OS X Snow Leopard to run on Psystar computers are new and different and not within the scope of the California litigation.”
Psystar asked the Florida court to award it treble damages and force Apple to stop tying Mac OS X to its Mac hardware in the operating system’s end user license agreement (EULA), as well as through technical tricks that check to see whether the computer starting Snow Leopard is a real Mac.
Last week’s filing spent most of 14 pages trying to convince the judge to fire a preemptive strike at Apple.
“Psystar believes that it is legally entitled to resell copies of Mac OS X Snow Leopard on Psystar computers, but is confident, based on the ongoing litigation with Apple over Mac OS X Leopard, that Apple will view Psystar’s decision to sell computers running Mac OS X Snow Leopard as illegal,” read the lawsuit. “Counsel for Apple has also so stated.”
The Florida-based clone maker asked the judge to rule that the company can purchase copies of Snow Leopard from Apple, Amazon.com and Best Buy—as it claims to have done with Mac OS X 10.5, aka Leopard—and that its practice of installing Snow Leopard on clones does not violate Apple’s copyright or break the Digital Millennium Copyright Act (DMCA).
“Psystar’s position with respect to Mac OS X Snow Leopard is analogous to that of a person developing a software application to run on top of Mac OS X Leopard,” argued Psystar. “Just as Microsoft writes Word to run with Mac OS X and Google writes its web browser Chrome to run with Mac OS X, Psystar writes its software to run with Mac OS X Snow Leopard.”
The new lawsuit also revealed that Psystar’s Snow Leopard bootloader—the small program that starts up Mac OS X 10.6 on its clones—“makes use of features of Mac OS X Snow Leopard designed to allow software developers to extend Mac OS X Snow Leopard to work with different hardware.”
Psystar continued: “Admittedly, Apple hopes that this hardware be peripherals such as video camera or USB memory sticks, but nothing in the technology of Mac OS X Snow Leopard prevents use of the same facilities to extend Mac OS X Snow Leopard for use on non-Apple personal computers.”
Apple and Psystar have been waging legal warfare in federal court since July 2008, when Apple sued Psystar over copyright infringement and software licensing charges. That case is slated to go to jury trial on Jan. 11, 2010.
Two weeks ago, Psystar accused Apple’s senior marketing executive, Philip Schiller, of being “unprepared” and “unwilling to testify” during a deposition earlier in the month. Psystar demanded that US District Court Judge William Alsup force Apple, and Schiller, to schedule another deposition.
Apple countered that with an Aug. 20 letter brief to Alsup. “Psystar’s request for the continued deposition of Philip Schiller is nothing more than an effort to harass one of Apple’s senior executives and prematurely seek expert testimony,” Apple’s California lawyers said.
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Comments received
OS said on Tue, 01 Sep 2009
"By tying its operating system to Apple-branded hardware, Apple restrains trade in personal computers that run Mac OS X"
What are they smoking ? Apple hardware is the only hardware that can legitimately run OS X.
Surely the creator / owner of something should be able to dictate how it can and can't be used. OS X is the operating system for Apple Mac Computers. End of story.
I'm amazed that this has got as far as it has, it seems pretty black and white to me. I hope Psystar are able to repay their customers and Apple's legal costs at the end of this.
@OS said on Tue, 01 Sep 2009
Well, it's just as ridiculous as those people making a fuss about Windows shipping with Internet Explorer. In fact, that's even more ridiculous because people can install their preferred browser(s) easily enough.
If they have a problem with it, they should make their own bloody hardware and build up as successful a company.
London said on Tue, 01 Sep 2009
I'm suing Ford because they are forcing me to buy the car that runs their engine!
Chris said on Tue, 01 Sep 2009
By Purchasing a piece of software, I should have the right the tweak and edit it as much as I want. If I don't like the background, I should be able to remove it. If I don't like features, I should be able to remove them. If I buy an HP, I can put any piece of hardware in it I want. Why should I not be able to do that with a Mac should I purchase one?
This is why I don't have a Mac.
@Chris said on Tue, 01 Sep 2009
Except you don't purchase software.
You buy a right to use it.
Still, don't let the facts get in the way of a nice trollish rant.
Macdemon said on Tue, 01 Sep 2009
Where is the money coming from to fund all these pathetic lawsuits??
I thought Psystar was fillling for bankrupsy???
I might as well sue my local Sont Centre for not offering me a pasasonic TV......then I'll sue Tesco's because the runner beans I bought last week have never been round a track, then I'll sue Kwikfit because they took longer to change two tyres on my car than the McClaren-mercedes F1 team... Then I think I will sue McDonalds because my McFlurry had two less bits of chocolate in it than my last McFlurry......
SO THERE....................!!!!!!!!!!!!!!!!!!
Billyboobearsdad said on Tue, 01 Sep 2009
Any truth to the rumor that Microsoft have bought Psystar??? ;)
Reader said on Tue, 01 Sep 2009
Who would anyone buy into such a headache? These machines aren't any cheaper than Macs. The monitors they show in every ad aren't included in price. Neither are keyboard, mouse, WiFi, Bluetooth or Firewire. They are all extra. So are Core 2 Duo processors. You'd have to be completely nuts to waste your money on something that risks becoming obsolete so soon.
Beatrice said on Tue, 01 Sep 2009
Actually, you can buy a Ford and run it with a Chevy engine... and buy a Ford engine and put it in a Chevy. it takes some tinkering, but you can do it.
The tying of Mac OS to Apple hardware is artificial, and being used in a way that restrains trade.
"Surely the creator / owner of something should be able to dictate how it can and can't be used." Absolutely not, when the creator/owner SELLS it, and uses illegal restrictions and contract clauses to create a restraint of trade.
Imagine Microsoft selling (licensing) Word, and forbidding you from using it to draft a lawsuit against Microsoft, or forbidding you from using it to write a book critical of Microsoft. This is not to mention that in many states in the US, "shrink-wrap" license agreements are not enforceable.
Apple has a good OS, but mediocre overpriced hardware... they drive the purchase of the overpriced hardware by illegal tying with the OS.
RetiredLawyer said on Tue, 01 Sep 2009
As a retired lawyer, it is pretty obvious to me that Psystar is being taken for a ride by their cowboy lawyer. He is just having a flamboyantly good time at their expense. This will all come down to nothing, at which point he will remind that, when hired, he cautioned them that this was all a "longshot" but that maybe they would get lucky.
@Chris said on Tue, 01 Sep 2009
"By Purchasing a piece of software, I should have the right the tweak and edit it as much as I want."
Yes you do and Apple does not mind. But try and sell your stuff in volume and that is a different story. Like any company, Apple has a need to protect their good name. Just like speeding, stealing software, etc is illegal, so is what Psystar doing illegal. Period.
Just a thought,
en
Paul said on Tue, 01 Sep 2009
@ Beatrice
Actually I think you'll find that they have not SOLD it, they sell you the LICENSE to use it. Apple still own it. That license is very clear as to the terms of that softwares use and to use it for purposes not payed for in your license purchase/agreement is illegal...no matter what part of the world you're in.
I'm an illustrator. By your logic, when I create a piece of illustration and submit it to the company I'm working for they can then go on and change/distribute/use it any way they wish. This is not the case. They license the image from me and that license dictates what they're allowed to do with it. If they want to do more with it then they have to come to me and pay for it. Anything else is copyright theft and illegal. If you don't like the license agreement then don't agree to it and go elsewhere.
DRAGOLIZER said on Tue, 01 Sep 2009
Just going to say that Apple has made the OS specifically for their Macintosh computers. They have the right to restrict what their OS can be used on etc.
I personally don't like companies such as Psystar for this matter.
@ Beatrice said on Tue, 01 Sep 2009
'Apple has a good OS, but mediocre overpriced hardware' This one comment alone shows utter ignorance about Apple product. I'm not a fanboy but anyone with an ounce of intelligence appreciates the quality of design and care taken over their products.
Or are you saying the Queen gave Jon Ives a CBE because she was dazzled?
Howard said on Tue, 01 Sep 2009
@1
>"By tying its operating system to Apple-branded hardware, Apple restrains trade in personal computers that run Mac OS X"
>
>What are they smoking ? Apple hardware is the only hardware that can legitimately run OS X.
Excuse me? That's exactly the problem they're suing over. That Apple restrains OS X to their hardware by any means, legal or technological, is really quite offensive and possibly illegal. It's certainly unfair business practice.
OS said on Wed, 02 Sep 2009
Macs = Apple hardware + OS X.
Macs are in two halves but these two separate components are only to make it easier to update things. If Apple put OS X on a ROM and soldered it to the motherboard would this make it clearer to those that don't grasp the concept that this is industrial theft on a massive scale.
It's not about restricting the running of the OS X on other machines, it's the fact that OS X isn't separate from Mac, it's a key ingredient that Psystar are stealing in broad daylight and re-branding as their own product.
Baskaran said on Wed, 02 Sep 2009
Apple should stop selling the OS as a package. They should allow only online updates for Macintosh computers. This way all the crooks can be caught.
Alternatively Microsoft should not sell any OS beyond $29 or $49 a family pack as what Apple sells it. For may be business use they have to cap the price at $495 (the cost of the unlimited client license). Why Microsoft office is a $400 (various type of licenses are rip offs at different level) rip-off? Should be lowered $129 or $149.
Microsoft is not a holy cow anymore.
Steve H said on Wed, 02 Sep 2009
Apple can argue that they are a hardware company, that their hardware's ability to run Mac OS X is its USP, that hardware and software are designed together, that neither is a complete product on its own, and that neither is sold without the other (you cannot buy a Mac without Mac OS X, and Mac OS X is clearly only intended for existing Mac users). They don't restrict what retailers install on the Macs they sell, or what apps they remove before selling them, and it takes little effort to replace Apple apps with those from other vendors
This is not like Microsoft's inclusion of IE with Windows. Microsoft wanted IE to be the dominant browser, and made it difficult (or impossible) for OEMs offering an alternative to license Windows. The OEMs' survival depended upon their ability to ship Windows with their hardware so this was abuse of a dominant market position, and an unfair restraint of trade. If Linux had had a 40% market share Microsoft would probably have got away with it.
drumhum said on Wed, 02 Sep 2009
"Psystar"?
"Shyster" more like.
Alex said on Wed, 02 Sep 2009
So I can sue all these PC game companies because their software doesn't work on my Apple hardware?
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