[via ComputerWorld]
Psystar’s attorney Colby B. Springer has reported that an Answer and Countersuit has been filed in the case of Apple, Inc. v. Psystar Corporation pending in the District Court for the Northern District of California, San Francisco Division (Case No. 3:08-cv-03251-WHA, the Honourable William H. Alsup presiding). The crux of their Countersuit is restraint of free trade in violation of the Sherman and Clayton Antitrust Acts. Additionally, Attorney Springer has stated that contrary to Apple’s allegations, Psystar never modified any of Apple’s proprietary code but did legally modify open-source code that is part of OS X. That is significant as it had been my personal, non-legal (as I am not an attorney) opinion that any such modification of proprietary software would be a strong element in Apple’s suit rather than reliance on the enforceability of the EULA.
However, I have just researched the official Court electronic docket, and no such filing(s) has shown up as of this point. Electronic filings (which are now required in Federal Court actions) generally show up immediately, so it is unknown why it does not yet appear. The source material also is unclear if the Answer is incorporated in the Countersuit, or did they file a completely separate suit (the source material seems to indicate otherwise)? That would explain the absence of any such pleading (countersuit) in the existing case. However, there is no record of a separate action in the electronic database either, at least not in that Court. I have also searched in the District Court for the Southern District of Florida and came up empty-handed.
Also of interest, Psystar co-founder Rudy Pedraza gave notice of Psystar’s intention to create a laptop computer able to run OS X at some unspecified point in the future.
On a personal note, is it just me or does that name of Colby Springer sound like a breed? I guess we will find out if that dog can hunt in Apple’s orchard. And…
wait for it…
Apple declined to comment.
Cult of Mac has some interesting examples of other “monolopies.”
ADDED: I thought of a possible explanation for the pleading(s) not yet appearing. Perhaps due to filing fees (if any) for the Countersuit, the pleading had to be filed the old-fashioned way and is awaiting scanning by the Clerk.
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Josh
27th August 2008, 00.30 am
monolopies?
I don’t understand how anyone can tell you what to do with a software purchase. As long as I don’t install it on multiple machines, how can that be ‘illegal’ to install it on different types of hardware. It’s ridiculous.
There are so many appropriate analogies that I barely know where to start.
It’s like a newspaper telling you what light-bulb you have to use to illuminate the paper. Or to put a twist on a real world case that is much closer to home, a printer manufacturer telling you that you can’t use their ink in someone else’s printer.
Josh
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Dizzle
27th August 2008, 00.35 am
Did you read the Cult of Mac article linked to at the end? They gave very cogent examples of the exact same situation with other companies.
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Dizzle
27th August 2008, 00.39 am
I would add that whether or not you think it is ridiculous (I don’t) doesn’t mean it isn’t illegal nor should it be made illegal. I think speedos are ridiculous, but not that they should be made illegal. Such things are only illegal to the extent that you cannot get similar items elsewhere, and with Apple taking 10.4% of the consumer market share (meaning others are taking the remaining 89.6%), one would have to cross one’s fingers and toes to say with a straight face that Apple is the only place to get a computer.
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Dizzle
27th August 2008, 01.14 am
Well bedtime for me. Bummer, I was wanting to read the actual filings, but they are still not on the electronic docket, and as the Court is now closed in California, we probably won’t see them until tomorrow.
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$cirisme
27th August 2008, 01.47 am
I hope Psystar wins in their countersuit. We need a court to finally rule on this ridiculous documents.
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Josh
27th August 2008, 07.11 am
@Dizzle, if your first comment is aimed at me, then yes I did. That’s where I came from.
@Dizzle’s second comments
I simply fail to see how you cannot see the idea as ridiculous. As far as I’m aware in none of the other examples that Cult of Mac gave, is it possible to walk into a shop and leave with a boxed disc that you are then expected not to install on whatever machine you like.
I’m not a Mac hater. I’m writing this on my lovely all-in-one aluminium and glass computer, running my favourite OS – the only OS I’ve ever forked over my hard earned cash for in a decade of computer ownership.
The point is it is ludicrous that anyone can purport to tell you what you can or cannot do with something that you’ve bought (if it’s not going to harm anyone else of course).
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Josh
27th August 2008, 07.49 am
Also, I meant to say, if you could go and buy a boxed set of xBox OS 2 – or whatever it’s called, then that would be the same and any restrictions on its use would be just as ludicrous.
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Dizzle
27th August 2008, 12.07 pm
Josh, that is what the free market and invention is about. It is ridiculous that we want the government to interfere in private business to such a way (if its not going to harm anyone else of course - which is what anti-trust laws are created to avoid). The fact is IMHO that this simply isn’t relevant to anti-trust. Just because someone invents something and offers it for sale does not give a carte blanche right, though at least in America our entitlement mindset seems to make us think so. I understand you are not a Mac hater, but if you dislike their practice so much, show your dislike with your wallet. That is how the free market work. We don’t need the government for this.
And though I am not a gamer (and the Cult of Mac examples are gaming issues), I believe that it is precisely on point and Cult of Mac is much more knowledgable on the gaming issues than I am.
Again, as you noticed, I am not much interested in the personal opinion side of what we think is ridiculous or not, but what we want the government to control. We as consumers have the power. There may be some day that there is something that you own or someone close to you, and they have the legal right to do so, but some opportunistics punks (and yes that is my opinion of Psystar) decide they are going to parasitically profit from you and then the government sticks their nose into it, that would be right either.
If this were just, say you Josh, during something in the privacy of your own home, and Apple went after you, I would be on your side because let’s get real. But these guys are parasites as far as I am concerned.
@cirisme, if they win, IMHO it wouldn’t really have a ruling on EULAs in particular, it would be only because Mac OS X is so superior that Apple is monopoly in an area where there is no equivalent. Horse of a totally different colour, and it wouldn’t have direct precendence on EULAs writ large. I hope they get squished for the principle of thing. The anti-trust laws were not written for this purpose and I am opposed to unjustified expansion of legislation by judicial fiat. Similar to the expansion of using RICO for things not intended, such as abortion protesters and other protest groups.
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Mason
27th August 2008, 20.59 pm
@cirisme: you are referring to getting a ruling on how legally binding a EULA is in general?
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Dizzle
27th August 2008, 23.23 pm
@mason, yes I believe he is. In this particular case (and not just because it is Apple) I would disagree with cirisme that EULAs are ridiculous documents. I agree they can be. In this case, there is legitimate business concern that is integral to Apple, not something tangential. Buying an Apple product is not just buying the product, but buying into the whole package and ecosphere, and that is their reputation and business model. In their Complaint, Apple laid out what I believe to be a good argument for the idea I suggest above.
Now where would I think an Apple restriction is potentially wrong? The limitation of only five computers to have access to an iTunes library. I believe they could say (but couldn’t really enforce) that it has to be a computer of the household - but what if a household has ten kids, and each of them have a computer.
Cult of Mac today beat me to the punch in an idea I thought of on my lunch break. Damn! I am going to write on that later as my idea differs a bit from the one posted at Cult of Mac in a few details.
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Josh
28th August 2008, 00.56 am
@Dizzle
Forgive me for not taking the time to get to terms with your antitrust laws. I hope my ignorance of them doesn’t have too much bearing on my arguments. All I’m trying to say is that if one has legally purchased an OS X DVD, any law that enforces a contractual duty to not use it on my one’s own hardware (for personal use of course) makes a mockery of the contractual process. Contracts are supposed to be fair, otherwise they do not work.
I am in no way suggesting that Apple should not sell whole widgets, but if it sells standalone software then its practice of attempting to legally restrict people’s rights to use such software to certain hardware is ridiculous and unfair.
Likewise, I am not suggesting that Apple shouldn’t be allowed to declare that it will not support any hardware but its own. Such a stand is their right and quite frankly it would be a very wise move.
Imagine a (purely) hypothetical situation though, where I gradually, (or suddenly), replaced every part of my iMac. At some point it would no longer be a Mac. (As far as I know there are no Mac ROMs or equivalent irreplaceable proprietary Apple components in today’s Macs). But at at what point would I be in breach of this obscene contract?
I found Leigh McMullen’s suggestion of withdrawing OS X standalone sales intriguing. It would almost certainly silence my arguments. (http://cultofmac.com/the-solution-to-apples-little-psyster-problem/2629)
I hope you don’t think I’ve been trolling. I’ve been a Mac lover since the first time I did that wonderful audio cassette multimedia Macintosh tour on my good friend and neighbour’s 128k in 1986, and I’ve followed and rooted for Apple since.
But I find you kind offer of advice, that is to speak with my wallet, a tad disingenuous. Disliking one aspect of a company’s behaviour need not extend to a blanket moratorium of all its products. As I mentioned OS X is my favourite operating system and I cannot imagine using anything else. On the other hand the iMac was bought because I had no other choice. Don’t misunderstand me, it’s a beautiful machine, but given the choice, I may well have chosen something else. As long as Apple offers OS X in a box then, for those willing to take the risk, there should be a choice.
I’m going to leave it at that and propose an agreement to differ.
Josh
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$cirisme
28th August 2008, 06.04 am
“@cirisme, if they win, IMHO it wouldn’t really have a ruling on EULAs in particular, it would be only because Mac OS X is so superior that Apple is monopoly in an area where there is no equivalent. Horse of a totally different colour, and it wouldn’t have direct precendence on EULAs writ large. I hope they get squished for the principle of thing. The anti-trust laws were not written for this purpose and I am opposed to unjustified expansion of legislation by judicial fiat.”
If you hadn’t noticed, the current US admin has made it very difficult to deal with anti-trust issues. Just watch the Microsoft case for an example.
But the first sale doctrine is pretty well established in the US. We just need a ruling that clearly shows it applies to software the same way it does to all other goods.
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$cirisme
28th August 2008, 06.05 am
Damn formatting.
Do I have to use html to get line breaks?
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$cirisme
28th August 2008, 06.09 am
“@mason, yes I believe he is. In this particular case (and not just because it is Apple) I would disagree with cirisme that EULAs are ridiculous documents. I agree they can be. In this case, there is legitimate business concern that is integral to Apple, not something tangential. Buying an Apple product is not just buying the product, but buying into the whole package and ecosphere, and that is their reputation and business model. In their Complaint, Apple laid out what I believe to be a good argument for the idea I suggest above.”
Book makers, iirc, once tried to enforce their own “EULAs” which was eventually, rightfully, ruled as illegal. Apple’s business plan may depend on EULAs, but that is no argument for allowing EULAs, that is an argument that Apple’s business plan is incorrect. If Apple is so dependent on using illegal means to sustain itself, that is Apple’s problem, not mine or the law’s.
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Dizzle
28th August 2008, 13.13 pm
Have you read the actual complaint? The first-sale doctrine is a very minor part of it, that is not what Apple is relying upon as I understand it. Perhaps the lawyers think differently.
And I believe anti-trust laws should be difficult. I believe in free market choices and government interference as little as possible. The consumer benefits in the end. It is socialists states that micro-manage the market, and in this issue on anti-trust, I am glad it is hard. This situation is NOT what those laws were created for, just like RICO was NOT created to stop abortion protests.
Just because some lawyer can twist away from original intent doesn’t make it right. Hey you and I see the way some people twist the Bible away from original intent. I see interpretation of the law in a very analogous way to a proper interpretation of the Bible. Which is why I also am a strict constructionist when it comes to the Constitution.
They may lose on EULA issue - but it would sicken me if they lost on the anti-trust issues, not just because I love Apple, but I love the American ideal of a free market economy and I think that would be a further step in the erosion of what I hold dear.
(sounds like I am channeling Ayn Ran - I am not)
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Dizzle
28th August 2008, 13.15 pm
hmm how did that get duplicated? I will ask Alex above these weird formatting issues.
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$cirisme
28th August 2008, 16.29 pm
The complaint or the response? I read Apple’s complaint but I have not seen Psystar’s response. If you have a link to the response, I’d definitely like to read it.
And do you mean Psystar in the above sentence? Because saying that Apple would rely on the first sale doctrine is wrong. Of course they would not rely on the first sale doctrine. The first sale doctrine is what prohibits sellers from dictating post-sale terms to buyers, eg, eulas.
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$cirisme
28th August 2008, 16.30 pm
BTW, I found out that the ajax posting mechanism loses all the line breaks and stuff. But if you reload the page from scratch, the formatting is really there.
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Dizzle
28th August 2008, 17.47 pm
@cirisme The first sale doctrine then, as you have read, is a very small part of their complaint. The strongest part that I had originally thought is something that Psystar now denies, and that is modification of proprietary software.
@Josh It is not disingenuous if that is how the free market is supposed to work. Our “rights-fixation” has gone to the extreme. You do have a choice - don’t use Apple. You don’t like that choice, then you pay. You don’t have a “right” to have what you want at the cheapest possible price, you simply don’t.
In a lot of comments I have read elsewhere, so much has been focused on “me, me, me” and that is not what the legal case is about. If suits keep abusing laws like this, how many innovative products will never be made? See how much you like Apple afterwards if they don’t find a way around it. I believe the Apple users that are supporting Psystar in this based on a “I don’t like it” mentality are cutting off their nose to spite their face and need to look at things a bit more dispassionately.
I too think Leigh’s idea is fantastic. I am only pissed because I thought of it at the same time he did, but couldn’t get time to write it until I got home from work. But that being the case, I am sure there are dozens of people out there hating both Leigh and me for writing it before them. A brain like Jobs’ had this figured out the day the Psystar news broke. I bet they planned on their surefire backup before they filed the suit. That may be why they waited rather than my prior theory that they were waiting for proprietary code to be modified.
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Mason
28th August 2008, 18.44 pm
(Oh wow, when not on the iPhone the comments are much more like a BBS system.)
I’m not sure how I feel about EULA’s in general. When the whole issue with Psystar came about, many of the podcasters I listen to were questioning how legally enforceable any EULA is.
A blanket decision about the legal enforceability of EULA’s might not be the best thing, really. It would be better to define what aspects of the EULA are can be enforced by law, which ones can be enforced by pull of product support, etc.
I don’t know the exact language of Apple’s EULA, but I’m pretty sure that if I go into the store and purchase a Leopard disc, they won’t care what I try to install it on. I won’t feel like I’m in danger of being sued. I only think they will care if I turn around and try to sell the hack as a “Mac.”
Which begs the question, really, what exactly is a “Mac?” Is it the hardware, OS, or is a “Mac” the whole package? I’m not so sure their business model would crumble if they couldn’t have EULA’s. They have contracts with companies that sell their products commercially, and they could include a “only sell our software pre-installed on our hardware” clause. They probably do anyway.
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Sparko
28th August 2008, 20.08 pm
I kinda hope apple get’s their butt kicked on this one. For a company that started out as being the little guy who bucks the big corps, Apple has turned into exactly the kind of company they went up against. They have become the big giant corporation that wants to control every single thing about their product. Of course they have that right, but I think they would do much better loosening the reigns a bit.
Nice article Dizzle. Thanks. I was wondering what the status of this case was since I heard about it a few weeks ago.
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Dizzle
28th August 2008, 20.57 pm
Sparko again, that’s an emotional response, not a legal one. Would you want to be tried on emotions? And you are wrong about being the type of company they went out against. Apple isn’t trying to push anyone out of business, and they are only around 10% of the marketshare. If you are referring to IBM - the only company in the computer industry today that compares to those practices is Microsoft, and that is just reality. And Microsoft has been tried on those issues, and I hope their decision wasn’t based on emotion. The irrational IMHO want to get the “big guy” sentiment that seems to be in vogue today disturbs me. It is the “big guys” that provide the jobs and move the economy along.
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