Apple wins clone suit

@Jeff Gray

As the summary judgments indicated, any addition, change, modification, bypass of code, etc. to adapt Mac OS X to operate on non-Apple hardware absent a license from Apple creates an illegal derivative work.

While, practically speaking, it's in Apple's best interest to stiffen its copyright protection in OS X's underlying code, the judge's determination leaves no room for ambiguity concerning Apple's rights to its product.

Despite the judgment, it would suggest that clones of OSX could soon be available in large numbers if it is this easy to modify the file system. Given the potential demand and profit potential, Apple could have its work cut out halting the spread of cloned OSX.

With this legal finding at hand, I hope Apple notifies the appropriate attorney general or the FBI that Psystar's Pedraza Brothers have violated the DMCA's Anti-DRM circumvention law. It would be very interesting to see them in prison for several years.

After all, the guys who created the mod for Sony's Playstation are also in the same boat and are being prosecuted for violating the DMCA's anti-DRM curcumvention law.

The forgonest of forgone conclusions. That's a word, right?

@Malfrex

There are a number of issues at play including violation of Apple's licensing agreement. That agreement the court determined to be valid and not unduly restrictive.

Another issue relates specifically to your point. I have copied and pasted the applicable section from the summary judgements below.

But as importantly you have the right to buy or not buy Apple products such as Mac OS X or a Macintosh computer based on what you consider to be the merits of the product or the conditions of purchase or license. That should be celebrated.

Apple's business or product sales and licensing models don't work for you. Those same conditions may or may not work for me. What apparently doesn't work according to the court is Psystar violating Apple's copyrights and licensing agreements to sell Mac OS X on hardware of their own making.

Below is an excerpt from the summary judgements relating to your first point. Please see the .pdf linked in the article for more information:

"17 U.S.C. 101. Psystar infringed Apple’s exclusive right to create derivative works of Mac OS X. It did
this by replacing original files in Mac OS X with unauthorized software files. Specifically, it made three modifications: (1) replacing the Mac OS X bootloader with a different bootloader to enable an unauthorized copy of Mac OS X to run on Psystar’s computers; (2) disabling and removing Apple kernel extension files; and (3) adding non-Apple kernel extensions. These modifications enabled Mac OS X to run on a non-Apple computer. It is undisputed that Psystar made these modifications (Def. Opp. 6–7).3
But Psystar contends that this did not amount to creating a derivative work, because Apple’s source code, object code, or kernel extensions were not modified. This argument is unavailing. Psystar admittedly replaced entire files within the software while copying other portions. This resulted in a substantial variation from the underlying copyrighted work. In fact, if the bootloader and kernel extensions added by Psystar were removed, then the operating system would not work on Psystar’s computers. The inclusion of the copyrighted Mac OS X with the above-described additions and modifications makes Psystar’s product an infringing, derivative work."

I have 2 opinions based on this:

First off, I may be understanding it incorrectly, but doesn't Psystar's solution basically add in a pre-bootloader to make the system think it's running an EFI chip, and therefore will install? I haven't tried their trial software, but if that is what it is doing they are technically not violating the copyright of the software, they're skirting it. If they are using their knowledge of the code to create a pre-loader, they are technically not hacking the software.

Secondly, there is a grey area in all this as they do sell the OS independently of the system, it opens up the can of worms as to whether it's something independent from the workstation or not. Other companies run proprietary OS' for their closed systems, IE Nokia (Symbian), however for a full update you require a different system. Otherwise, you can get patches for the existing system of free.
The basis for Psystar's whole system is pointing out the absurdity of Apple charging an insane overhead on their hardware because they can tie their OS to it… theoretically.

Personally, I wish they would unlock their OS from hardware as I would install it on my PC. However, I will never by a closed off system where all I can do is upgrade the RAM and put in a new hard drive because it forces the user to do a massive upgrade all at once as opposed to systemic upgrades, as I (and many other PC users) would like. In then end, OS X is a great OS, despite the few chinks it's shown with the latest release. However it's not worth purchasing at the insane markup Apple demands.

For those that know PC history, there was a previous OS "war" that Microsoft won – DOS beat out CP/M because of cost and cross-compatibility.

Oops! The comment below in response to "Jim" was posted without completing the name and address form. I take ownership of the comment below attributed to "Anonymous."

@Jim

Please reread the Wikipedia reference you provided. Essentially to an illegal Tying claim the plaintiff must prove the opposing party has sufficient economic power to alter the market via of Tying products.

In the famous Microsoft anti-trust case the US District Court (the Court of origin or Court of First Instance) determined Microsoft had established a monopoly in operating systems. The monopoly determination was upheld in the US Court of Appeals (the Court of Second Instance).

Monopolies are not inherently illegal. Microsoft's monopoly in operating systems is legal. What became illegal was tying Internet Explorer (and other Microsoft products) to Windows.

For example, Microsoft failed to prove Internet Explorer was an integral part of the OS and was determined to have used its monopoly power to restrict the market for Web browsers and media players as well as restrict competition for productivity suites that competed with Office.

Microsoft's monopoly status was determined by a US District Court and upheld by the appellate court. Where the two courts differed was on the remedies to address the company's illegal use of monopoly power to restrict competition and trade.

Again, there is nothing inherently illegal about being a monopoly. There is something inherently illegal when the broad economic power of a monopoly is used to benefit the company's products at the expense of competing products, denying consumers choice and perhaps more favorable pricing on products.

By virtue of the Macintosh's limited market share a realistic claim that Apple has sufficient economic power to distort industry sales of products by licensing Mac OS X for use only on Apple hardware can not be made. The court determined in its summary judgement Apple's license agreements are not unduly restrictive under the law.

Because of Microsoft's overwhelming monopoly in operating systems the court has determined the company has sufficient economic power in the marketplace to make Tying of products to the OS a material issue that impacts the economic landscape for competitors and consumers.

Because Apple does not have sufficient economic power in the PC market to distort or otherwise negatively impact consumer choice or adversely impact the sales of potentially competing products, illegal Tying claims are rendered moot.

@Jim

Microsoft were sued because they had a monopoly and abused it to force manufacturers to stick with their products.

Apple is not a monopoly. You can buy plenty of computers without an Apple logo and without the Apple OS.

If you really think Apple is a monopoly then perhaps you should start taking people like U2 for being monopoly producers of music that sounds like U2.

@Joe Blow
"Why would you defend Apple's attempt to control what *you* do with a product that *you* buy from them?"
They aren't controlling anyone. They are stopping a bunch of thieves stealing their work however.

There are several arguments made in comments on this article that do not relate to the legal issues upon which the Court's summary judgements have been made:

Mac OS X is a copyrighted product for which Psystar does not have the right to modify nor sell without an agreement with Apple. Whether or not Psystar modifies source code is irrelevant. Modifying the boot elements of the OS and bypassing proprietary elements of the OS to manipulate Apple's operating system to operate on non-Apple hardware is a violation of Apple's copyrights and represents the creation of an illegal derivative work.

Apple has released foundational layers of OS X under Open Source agreements. Psystar is free to build its own OS on these Open Source components. However, Psystar is not legally allowed to modify, sell or otherwise distribute copies of OS X absent a license from Apple. Not all elements and layers of OS X are Open Source. Those elements including the GUI and other proprietary technologies have not been released under Open Source agreements.

Additionally, Psystar is selling copies of the iLife and iWork software suites which are not necessarily elements of the operating system and are proprietary works covered by copyrights and trademarks.

The court has determined Apple's license agreements are not unduly restrictive and Apple in no way interferes with Psystar's ability to sell PCs with other operating systems.

Apple has the right to protect its copyrighted works and in no way interferes with Psystar's ability to sell PCs with other operating systems so there are no restraint of trade issues involved.

Further, Apple in no way interferes with Psystar's ability to develop its own OS to operate on its own hardware. There are no anti-trust issues involved.

The summary jugements indicate there is no legitimate legal basis for Psystar's claims addressed in the summary judgements that warrant bringing the claims forward to trial.

Whether or not one like the law is irrelevant. Please read the summary judgements. The court's determinations are clear and Psystar's arguments are both addressed and determined to have no real legal ground for trial. In other words under the copyright laws (not written by Apple but by Congress) there's no legal basis to support Psystar's claims.

Again, read the summary judgements. Redress concerning the laws involved is through the Congress, not the courts. Psystar has made no claims the laws covering Apple's rights are in anyway unconstitutional therefore the fairness or unfairness of the laws in question are not an issue of dispute for the court.

If you don't like the law, contact Congress. The Court has determined Apple is operating well within the law as it is written and practiced as it it relates to protecting the company's copyrighted works.

@Joe Blow

You are right. You should be able to tell from the responses, that your detractors don't understand the underlying mechanics of what Psystar is doing. They simply like Apple and don't care about their own rights.

BTW guy, Tying is illegal in the US. If Microsoft pulled this shit, they'd be suited. Oh wait. They were sued. http://en.wikipedia.org/wiki/Tying_%28commerce%29

@ kiwikev

Please reread my comment. I never said Apple made the most personal computers. Quite the contrary. I said some might argue Apple makes the best personal computers not the most personal computers.

My comment was in response to statements that somehow Psystar might have an anti-trust claim against Apple. I know of no court determination that would suggest a company with Apple's market share (10% or so domestically) and not among the top five PC makers on a global scale could operate in such a way as to warrant an anti-trust determination.

Essentially Psystar (according to the District Court's determinations) has violated copyright law and misused Apple's property in ways contrary to the law and Apple's license agreements.

Whether or not someone likes or dislikes Apple is irrelevant to this discussion. The Court has determined Psystar has violated the law and illegally misused Apple's property. These are legal issues involving copyright law (including elements of the DMCA).

The fact that the determinations were made in summary judgements indicates Psystar's arguments lack legal ground to continue the arguments at trial.

Just because other personal computer OS' are available for resell does NOT mean Apple has to follow that business plan. Just as Nintendo does not sell games for other consoles, it's their CHOICE and business plan. Apple simply does not believe that making X millions in the short term selling their OS separately is a viable business plan (as evident by the Mac OS clone years) – that is their choice and your choice to decide. It's VERY SIMPLE. As noted, it does not apply to the First SAle Doctorine because when you buy a Psystar, they have already modified it! They would have much firmer legal ground if they sold their 'services' as an add-on accessory in the form of a chip. And for anyone who is confused that a high market share (100% of Mac OSX sales) is neither illegal nor a monopoly by LEGAL DEFINITION – you should read Fortune more often.

@Bob, Fairfax

Apple does provide their BSD Unix Distro free of charge.

Just Google: Opensource Darwin

And you can download it, alter it, contribute back and do what you want with it within the GNU license.

Only the upper levels of OSX are proprietary, which obviously makes sense from a consumer / consistency perspective.

So Apple isn't closing off any opensource code, it's all available to anyone.

In plain english – opensource is "share it, charge for if you want to".

You can look at it any number of ways and compare it with anything out there – This is different – it is a OPENSOURCE software – for those who do not know anything about it, please read-up before you demonstrate your stupidity

My 2 cents and humble opinion – Money rules – apple has the money to influence the legal system. You and I are wasting time discussing this.

OK, I'm not trying to troll, I just don't know how free software works (GNU public license, etc).
From what I understand, Apple OSX IS BSD Unix, which is FREE, open-source software. Apple is taking BSD unix and glossing over it with their GUI. I thought with open source software, any changes you made to it must be made public (all source code). And users are allow to modify it as long as they publish the changes.
So apple is taking free software, modifying it, then closing off the source code as their own product?

@ Joe Blow

Ah great idea mate. So let's go look at the current best selling book list, lets buy some copies and change a few words here and there, put a new cover on it and start a business printing our copies and selling them on. I mean, we bought it we're entitled to do it. I mean this is America after all. America was built on great ideas. I should be able to do what I like.

Don't you just love how anyone that doesn't buy into *the Microsoft Way* is branded an Apple fanboy?
If Apple wanted to licence OSX to any computer maker they would have to change their business model and charge $299. for their OS licence and protect it with a key with all the BS that entails for legitimate users. Apple must create enough revenue to support their high R & D costs. The next issue would be incompatibility issues between the box maker and the OS just like Microsoft has. This would end up with the user calling the box maker only to be told it's a software issue and Apple could then point to the guilty party much like the other well known OS publisher does. The end result would be a vastly deteriorated user experience.
The licence that one acquires from Apple states it may only be used on an Apple computer. Surely pisseyestar knew this. Joe Blow take note that you do not buy software; you licence it.

This case has been remanded in the past so Psystar could scrape up enough money to continue their battle to *steal* intellectual property. But I often wonder who is behind Psystar? Could it be a well known box maker or even Microsoft? Dell or HP could certainly be happy to be able to diversify from the clutches of Microsoft who collect a fee from them regardless of what OS is actually installed for the end user (unless their agreements have changed).

Interestingly, Microsoft just patented a part of unix on which OSX is based. It is the sudo command for elevating privileges in the users account which has been in the public domain close to 30 years. Curious!

@Jeff in Dallas

You said, "The issue, I believe, is by modifying the source code so OS X can run on non-apple hardware. Modifying OS X without approval from Apple is illegal under the terms of current copyright law."

I HIGHLY DOUBT Psystar has ever had access to any Apple source code. You don't need OSX source code to trick the compiled binary of OSX into running on non-Apple hardware. Hobbyists have been doing it for years.

So are all stores that sell used music CD's illegal?

Is eBay illegal?

Am I barred from selling my used Apple Macintosh on eBay?

Also @ Joe Blow…there is nothing 'simple' about what Psystar is doing. You don't just install OSX on a non-Mac computer the same way you install windows – because the hardware and chipsets are different than what are in Macs, the underlying source of OSX needs to be modified….which apple doesn't allow, the same way that the source of any windows OS, or Internet Explorer, or any other non-open source application cannot be modified and redistributed….get your facts straight.

@Joe Blow, SF, CA

Seriously? The rights to use the product you purchase only extend as far as the copyright holder allows. That why software comes with a Terms of Use.

It must be nice to walk around with such a sense of entitlement.

The issue, I believe, is by modifying the source code so OS X can run on non-apple hardware. Modifying OS X without approval from Apple is illegal under the terms of current copyright law.

And I would defend Apple's right to control what they do with their product because under US Law it is a right that is protected. This is not use of public property. You have no right to use the product until you license it from Apple. And then you only have the right to use it as Apple allows.

Seriously, do you have such a lack of respect for this country your would spit on US Law? Like it or not, copyright law exists and you have two choices. You can abide by it, or you can ignore it and face the consequences.

I think its time you read up on copyright law, and pay a little more attention to the terms of use you agree to when you *buy* a product from someone.

In reply to "Joe Blow, SF, CA" This is idiotic, but it is legal for Psystar to sell these in Europe because of the Europen Unions anti-competitive legislation. Just like how the EU had sued microsoft for their anti-competitive behaviour in relation to Internet Explorer and not providing options for a web browser.

And their site is still taking orders. /facepalm

Robert, is that right, Do Apple make the most Personal Computers?
I didn't know that, off the top i would of thought that HP, Dell, or Lenovo would have done, so that surprises me.
Im, just going to go and check and i'll report back with the numbers.
Here they are, First Quarter 2009, Highest Number of Personal PC;s sold worlwide, stats from Gartner Rsearch and IDC, and then the numbers from Amazon, what do they say about it.
1QTR 2009 – 67.2 Million PC Shipments Sold World Wide | 1st HP 19.8% Share – 13,305 PC's, 2nd Dell 13.1% 8,789, 3rd Acer 13% 8.758, 4th Lenovo 5.5% 4,430, 5th Toshiba 5.5% 3,688.
In the US, 1st Qtr, 15.3 Million PC's Sold. HP 27.7% Dell 26.2% Others 18% Acer 13.6% Apple 7.4% Toshiba 6.6%. Those were

Wonder why did they even bother to try this. Why not get a Linux Distro and configure it similarly. Free and Good!

So are all grey markets illegal?

Are you guys really that idiotic? Psystar is simply installing the OS on a non-MAC computer. They are not *stealing* anything from Apple.

Do we as consumers *not* deserve the right to buy the OS for $X and then install it on a non-Apple computer that costs much less than an Apple computer?

Why would you defend Apple's attempt to control what *you* do with a product that *you* buy from them?

You guys make me sick. Seriously.

@Eric, the first comment, I believe this judge already threw out the antitrust claim by Shyster, so no luck there. Second, a District Court judge is not going to file an antitrust suit against anyone. It's not his job.

@HetNet, MS was found guilty of anticompetitive behavior, guilty. Apple's antitrust claim has been thrown out. In other words, a court of law has shown you to be wrong, completely. Can you get the facts straight, since the supposed "fanboys" can at least do that?

@TIm: "The judge holds apple shares so he won't launch anti trust suit."

First, the judge can't launch an antitrust suit nor any other kind of suit. That would have to be done by an injured party or a government entity in its role of protecting the public, as in the case of the antitrust suit that MS lost, which was filed by the US Department of Justice and several states' Attorneys General.

More important, that is a very serious charge, one that, if true, could result in the judge being disciplined, impeached, or worse. (Judges generally don't hold individual companies' stocks. If they did, they would have to recuse themselves from any case involving that company in any way. To not recuse would be a serious breech of ethics.)

Do you have evidence to back up your charge? If you do, turn it over to the US Department of Justice. If you do not, you might want to consult a good attorney, yourself, one who can explain to you what "libel" means.

I suppose HetNet you believe copyright law shouldn't apply to software. Well then, just how do you expect Apple and their shareholders to be compensated for their work and investments? Mac OS X is licensed, not sold, and you have to agree to the license terms if you want it. If you don't agree, don't buy it. You always have the option to write your own operating system if you don't like Apple's terms.

Though I'm not an attorney and my views are simply those of an observer of the case, I don't see how the courts could have ruled in any other way. In a cursory review of the filings while following this dispute I don't see any indications Psystar had any real case law or court precedence to legitimately support its claims to the right to sell Mac OS X-based PCs without a license from Apple.

Copyright law (as cited in the summary judgements) appears to clearly support Apple's position Psystar's activities violated the company's rights to its property (Mac OS X).

As to the comment by "Eric" on what grounds is there a legitimate anti-trust suit against Apple relative to Mac OS X or the sale and distribution of Macintosh computers?

The Macintosh represents about 10% of domestic PC unit sales and on a global scale Apple is not among the world's top five PC vendors when measured in unit sales. There has been no court determination that Apple holds monopoly status in any of its major product markets. Apple's rights concerning the sale and distribution of its product without a license was the issue before the court.

While one might argue Apple makes the best personal computers in the world, no one argues Apple makes the most personal computers in the world. Anti-trust actions are usually not brought against companies with comparatively small market share nor are anti-trust cases usually filed against a company for providing high-quality products and for receiving consistently outstanding customer satisfaction rankings absent other claims.

Three silly comments to start this thread or what?

Psystar is a thieving, parasitic bunch of nobodies who deserve to lose their shirts.

Apple has no monopoly, it simply behaves exactly as good business should – to provide its customers with great products and shareholders with value.

For the millions of APPL shareholders funds invested in developing OSX and its great hardware – only to be plundered by some little xxx's in Florida is outrageous.

I hope they get jail…10 years minimum.

This was an unfortunate case in that Psystar could not reverse engineer properly the code needed to make their machine perfect compatible with Apples'.

Amdahl (way back when) was able to do a slightly better job at emulation than IBM thought they could. Yes Amdahl essentially won their case but lost due to that fact that IBM was years ahead of anything Amdahl. Most of Amdahl's code because a lot of function is done via microcode and did very little to IBM's code. IBM has since put a LOT MORE functionality into microcode and only now is beginning to understand that when run on an INTEL based processor all the microcode advancement is going out the window. Meanwhile IBM is fighting off a company that is able to emulate their OS (and microcode) rather well on INTEL.

The judge holds apple shares so he won't launch anti trust suit. He already dismissed this suit because it is injurius to his shares. Have no fear guys PearC is another company that sells clone.

guys? wake up. Some little punk thieves from Miami took Apple's OS and then stole code from the hackintosh community to sell computers on and make a profit. This is indefensible.

Let's talk about Microsoft if you must – how is that Zune OS stuff doing running on your Zen? How is your XBOX 360 OS doing running on your PS3? You see Microsoft does this as well.

This is NOT some small battle have for taking out the Hackintosh community. This is a case of going after a company which was set up to ride on the back of years of hard work. Not the least to say that if Apple didn't defend itself all sorts of nonsense could ensue.

I would think that Microsoft must be pretty happy with the outcome too. If it hadn't gone this way then a 2-bit outfit from Des Moines* could set up a company, employ a student to buy the student version of Windows 7 and then they could "add code" to make it run for any one and sell it at say 34 bucks. I think Ballmer would start chucking more chairs around at that point.

*No offense to anyone in Des Moines just a random city name used for example only.

Oh yeah, Apple threatens Dell that it will refuse to sell copies of its OS if Dell sells computers running Linux.

What? Cause that's what Microsoft did with Windows. And not just Dell but dozens of other PC makers.

Don't even pretend Apple is doing any anti-competetive. The reason why is precisely because they don't have the power to force Dell or HP to do anything, even if they have a perfectly legal monopoly on Mac OS X

If you're not going to accept certain facts, like the difference between a monopoly and abusing monopoly power using illegal tactics, don't even pretend you know anything about Apple.

Its about time. We run allover the world preaching to others to observe our intellectual property rights, and here we had a US company in clear violation. Apple sells a unified platform, not just hardware, or just software. And that is what has made it the tremendous success that it is, and delivers such tremendous value to its customers and shareholders. This is the key reason that they have the highest consumer satisfaction ratings in the industry by a wide margin. It is the integration of great design, quality and the reliable and efficient interoperability of its own designed components and software that make this platform / ecosystem a superior solution to the alternatives for those seeking the best experience in computing. It is also interesting to note, that in surveys, contrary to the rants of non-Apple users, that Apple also has the highest ratings for best value, which is the combination of price and benefit(quality, usability, reliability, resale value, etc. etc. etc.).

@HetNot that's because the courts have ruled against MS but in favor of Apple. There is a difference between using monopoly power in one market to control a second market (which MS has been found guilty of multiple times) and choosing an effective but legal business model to pursue.

@ HetNet

MS is overbearing and anticompetitive. They're in the copying business. The inequity here is that the small company Psystar gets punished for stealing Apple's technology while Microsoft gets away with it repeatedly year after year. Apple is just protecting it's own property which is exactly what they should do.

Judging by the comments you received so far, it appears the commenters are of the teen-age steal whatever isn't tied down group.

I'm surprised Psystar was so stupid as to try it.

Yeah, the Apple fanboys are always talking about how overbearing and anticompetitive MS is…But it's totally different when Apple, who is MUCH worse, does it…

@Eric.

On what grounds? Or just to please Eric from Illinois?

Hopefully this judge will be following this up with an anti-trust suit against Apple…