Clone maker will countersue Apple

CNET News.com ^ | 27 August 2008 07:19 AM | Erica Ogg

[Swordmaker]

US-based Mac clone maker Psystar plans to file its answer to Apple's copyright infringement lawsuit Tuesday in the US as well as a countersuit of its own, alleging that Apple engages in anti-competitive business practices.

Psystar's Open Computer
(Credit: CNET News)

Miami-based Psystar, owned by Rudy Pedraza, will sue Apple under two federal laws designed to discourage monopolies and cartels, the Sherman Antitrust Act and the Clayton Antitrust Act, saying Apple's tying of the Mac OS to Apple-labeled hardware is "an anti-competitive restrain of trade," according to attorney Colby Springer of antitrust specialists Carr & Ferrell.

Psystar is requesting that the court find Apple's end user licence void, and is asking for unspecified damages.

Springer said his firm has not filed any suits with the Federal Trade Commission or any other government agencies. The answer and countersuit will be filed Tuesday afternoon in the US in the US District Court for Northern California.

Pedraza attended at a press conference his lawyers called to present how the Psystar will defend its its OpenComputer Mac clone, which has been for sale online since April.

Psystar's attorneys called Apple's allegations of Psystar's copyright infringement "misinformed and mischaracterised." Psystar argued that its OpenComputer product is shipped with a fully licensed, unmodified copy of Mac OS X, and that the company has simply "leveraged open source-licensed code including Apple's OS" to enable a PC to run the Mac operating system.

Pedraza says he wanted to make Apple's Mac OS "more accessible" by offering it on less expensive hardware than Apple.

"My goal is to provide an alternative, not to free the Mac OS," said Pedraza. "What we want to do is to provide an alternative, an option ... It's not that people don't want to use Mac OS, many people are open to the idea, but they're not used to spending an exorbitant amount of money on something that is essentially generic hardware."

Apple will have 30 days to respond to Pystar's counter-claim. In the meantime, Pedraza says it will be "business as usual" at company headquarters. Though he said there was a "slight" downward dip in sales once Apple filed its suit, he planned to go ahead with making servers, and soon, a mobile product, which he said will be "like a notebook." But he refused to offer more detail.

Apple declined to comment.

But other legal experts say Psystar faces a tough legal challenge in proving Apple has engaged in antitrust behaviour by loading its software on its own hardware and thereby allegedly harming consumers and competitors.

Psystar's ability to prevail on the issue of having the latitude to load Apple's OS on its own hardware, given it has a licensing agreement with the company, may prove an easier road to hoe, legal experts note.

CNET News' Dawn Kawamoto contributed to this story.

[Swordmaker]

Psystar to sue Apple because Windows is not good enough? PING!

Mac iSuit Ping!

If you want on or off the Mac Ping List, Freepmail me.

[Ancient Drive]

I’ve always thought of MAC hardware as overpriced. the OS is pure gold though..

Psystar is MAC what Linux is to Windows.

[Swordmaker]

Psystar's ability to prevail on the issue of having the latitude to load Apple's OS on its own hardware, given it has a licensing agreement with the company, may prove an easier road to hoe, legal experts note.

WHAT? Where did that allegation come from? Nowhere have I seen anyone claiming that Apple has licensed Psystar to do anything with OS X except to install it on an Apple Labeled computer through it's EULA.

[Tempest]

Mac heads remind me of Obamaniacs.

[Swordmaker]

Psystar is MAC what Linux is to Windows.

That does not follow. That's like saying Psystar is to Mac as Joe's Windows OS is to Windows. Linux is an OS. Psystar is a company selling hardware.

[Ancient Drive]

I meant Psystar Hardware is the opensource, and Mac Hardware.. you know what I mean :(

[mavfin]

I suspect Apple’s real agenda here is the ‘it just works’ reputation their products have with their adherents. They want no part of supporting their OS on other hardware, or of people having problems running it on hardware apple didn’t supply the drivers for.

Who can blame them for that? It’s their business, it’s their custom GUI on top of BSD. Psystar can write their own BSD derivative if they like and support it.

[Greysard]

I think Psystar only can build his case on assertion that Apple's EULA is unenforceable. As you point out, Apple clearly states in the EULA that the licensee may install the software only on Apple's hardware.

This restriction may or may not be fair, but that's not the question. Apple's EULA is somewhat more restrictive than other, but it's not unheard of. Windows 95, 98, NT, 2000 and XP allow only one install of the software, even though technically you could load the same CD onto thousands of PCs (until WGA was implemented.) But anyway, I think the precedent of selling you a CD with software and then telling you what you may do with the software is well established by now.

I believe Psystar also understands that, and that's why they are grabbing at straws, claiming higher misdeeds of Apple. But the judge only needs to hypothetically substitute a smaller, non-Apple company and see if it makes any difference. It won't. I can open a one-man company and send you a CD with the same EULA, and it will be just as enforceable as Apple's. If Psystar has nothing else to fight with, it is only delaying its demise. It might be not a bad business plan, after all, if the company can keep the preorder payments and then be closed by the court. If the owners are properly insulated from the corporation they have a chance to get away with it, however barely.

[Ancient Drive]

True. I have an XP, a Suse Linux, and a Mac OSX at home... I love Suse Linux 11.0!

[dennisw]

Psystar is a tar baby and Steve Jobs knows it 
This should be Psystar's battle plan and I think it is ---

• Psystar boldly sells Apple clones with pre loaded OS and gets free publicity resulting in sales
• Psystar gets sued by Apple and gets free publicity resulting in sales
• Judge allows Psystar to continue sales while case is pending  --- Zowie!
• Trial ensues and judge renders his decision
• His decision is no more loading of OS allowed
• Since your computer is called "Open Computer" the court will allow you to sell OS discs along with computer
• Defendants say --- Thanks judge. We will sell our unformatted "Open Computer" along with any OS DVDs the customer desires, be it Windows, Linux or Apple
• Judge says -- Great idea boys! Now run along and stay out of trouble
• Boosted by the David vs Goliath publicity Psystar goes on to sell 10,000 cheap but good enough "Open Computer" w/Apple OS the next year and 253 with Linux discs

One year later we see that-

• Apple tries to sabotage Psystar by making the computers non-updateable and the ethernet gets trashed when updated
• Psystar drags Apple to court
• Judge lays down the law and says that if Apple (California company) persists in screwing young local (Florida and economy sucks) Cuban/Hispanic entrepreneurs he will have to assess damages in the tens of millions
• Apple fumes big time but a few months later buys out the Florida boys for 20 million to be rid of the nuisance
• One year after all this we find 5 new clone makers in economically depressed parts of America duplicating Psystar's business model and the game begins anew

[dennisw]

I suspect Apple’s real agenda here is the ‘it just works’ reputation their products have with their adherents. They want no part of supporting their OS on other hardware, or of people having problems running it on hardware apple didn’t supply the drivers for.

Florida judge will laugh at that
The Psystar boys bring a functioning clone to court and that high flying bs gets shot down

[dennisw]

Psystar will beat Apple in a Florida court
Apple will concede a segment of its desktop business to Psystar style clone makers

Steve Jobs and Apple will grow up and learn to be happy with the Apple laptop business which is growing mightily anyway and is its most consistent profit center

[MARTIAL MONK]

Who hoes roads?

Maybe a hoer?

[dennisw]

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The Open Computer/OpenPro is fully compatible with the OSx86 Project and is 100% operational out of the box. With no assembly required the Open Computer is a great value. You won't have to try to return parts because they're incompatible or don't work exactly as you'd like them to. Psystar has tested the Open Computer thoroughly and even run XBench to confirm the performance that is advertised. With this level of compatibility it's easy to install OS X Leopard on your own. Pick one up today.

 

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• Drive The Open Computer comes with a super-drive equivalent and 250GB 7200RPM SATA hard drive while the Mac Mini defaults to a simple combo cd/dvd rom and an 80G laptop drive

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The Open Computer mops the floor with the average Intel Mac Mini as can be seen from the XBench results (but the Open Computer shows up as a Mac Pro in XBench and isn't too far off from the average Mac Pro in it's base base base configuration). As a better performer for less the Open Computer is a superior product . New Xbench tests will be performed and posted here on both the Open and OpenPro computers.

[mavfin]

Obviously, from your several consecutive posts, you have an agenda yourself.

[dennisw]

Apple pan dowdie

[Swordmaker]

Florida judge will laugh at that

He won't get a chance.

The suit was filed July 3 in U.S. District Court in Northern California.

If they bring a "functioning" clone to court, it will save Apple the trouble in bringing in Exhibit A, a Pyystar clone with a modified version OS X illegally installed on it, which will prove their contention that Psystar has illegally copied and distributed OS X on other media than that which Apple provided in its OS X Leopard Upgrade package, violating Apple's copyrights.

[Swordmaker]

Who hoes roads?

Don't you love screwed up metaphors? Those short handled hoes are hard on pavement...

Maybe they use them to install potholes?

[Swordmaker]

We preinstall OS X on your machine so that you may be able to begin using your Open Computer right out of the box. Information about our restore disc is available on our website.

Obviously a modified installation in violation of US Copyright laws because they need to have a "Special restore" disk to install OS X that they DON'T send you.

Psystar claims their Open Computer,2.0GHz Intel Dual-Core Pentium 2.0GHz Processor:

. . . faster than most Apple computers out now . . .

. . . The base processor of the Open Computer is faster than any processor available for the Mac Mini.

. . . Why spend $1999 to get the least expensive Apple computer with a decent video card when you can pay less than a fourth of that for an equivalent sleek and small form-factor desktop with the same hardware?

. . . the Open Computer shows up as a Mac Pro in XBench and isn't too far off from the average Mac Pro in it's base base base configuration). As a better performer for less the Open Computer is a superior product .

Not one of those statements is true. They are demonstrably false. Just more BS they use to sucker people into buying a load of their unsupported junk. Even the lowliest Mac Mini sports an Intel Core 2 Duo, Intel's premium line of Duo processors, which has a minimum 2MB Cache, not just an older Dual-Core Pentium, Intel's bargain basement processor, with only a 1MB Cache.

They then dare to compare their crappy computers with Dual-Core Pentiums with a Mac Pro, which has, in its least configuration, an Intel® Xeon® 2.8GHz QUAD core processor with a Dual 12MB Cache, and dare to claim its "faster than most Macs."

Let's see: iMac 2.4GHz, 2.66Ghz, 2.8GHz, and 3.06GHz Core 2 Duo's with 6MB L2 Caches. MacBook 2.1Ghz, 2.4Ghz Core 2 Duos with 3MB L2 cache. MacBook Pro 2.4Ghz, 3MB L2 Cache, 2.5GHz, 6MB L2 cache.

Even the least expensive Mac Mini is at 1.83GHz Core 2 Duo 2MB cache is faster than their crippled 2.0Ghz bottom-of-the-barrel computer. The Mac Mini's faster 2.0GHz model certainly is.