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Judge allows amended Psystar counterclaims

updated 02:35 am EST, Mon February 9, 2009

Psystar amended claims

Despite a previous dismissal of Psystar's counterclaims against Apple, District Judge William Alsup has decided to allow the clone-maker to submit an amended version of its arguments. The court is likely to hear most of the copyright misuse accusations aimed at Apple, including allegations that the company over-extended the breadth of the Mac OS End User License Agreement (EULA). The first dismissal rejected any antitrust claims under the Clayton and Sherman Acts, while the recent decision trimmed away the unfair competition accusations.

The court disagreed with Apple's suggestion that copyright misuse can only be used as a defense, and not as a counterclaim. "This order is unconvinced, however, that misuse may never be asserted as a counterclaim for declaratory relief," Alsup wrote in his ruling. "PsyStar may well have a legitimate interest in establishing misuse independent of Apple's claim against it, for example, to clarify the risks it confronts by marketing the products at issue in the case or others it may wish to develop."

The judge also alluded to the potential affects on other companies if the court rules in Psystar's favor. "Moreover, if established, misuse would bar enforcement (for the period of misuse) not only as to defendants who are actually a party to the challenged license but also as to potential defendants not themselves injured by the misuse who may have similar interests."

The unfair competition claims were rejected in part by the connection to antitrust laws, a stance that was previously denied by the court. "Plaintiff fails otherwise to identify an actual or incipient violation of antitrust laws or the spirit thereof - harm to competition," Alsup said.

A Psystar win could have a significant effect on the market for Mac clones. Despite Apple's aggressive legal actions, several other companies continue to produce similar products. EFI-X produces a dongle that allows Mac OS X to be installed on systems, although the company recently changed its US distributor to avoid marketing the device as a tool to create Mac clones. A German company, HyperMegaNet, recently began shipping clones with the operating system pre-installed.

Lawyers for Psystar are now required to submit the amended counterclaims, while Apple must provide an answer to within 20 days. "Both sides should be taking discovery and preparing themselves for trial and/or summary judgment," the judge said.




by MacNN Staff

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Comments

  1. Guest

    Joined: Dec 1969

    -3

    End easy retail copies?

    Between this and the German cloner. I think we're going to see Apple tighten its control of selling retail copies of Mac OS X. I predicted that only authorized sales channels will be able to carry it and potential buyers will have to have proof they own a mac.The speed at which these cloners are popping up I don't expect Apple to simply use the courts only. Especially when there are so many gray areas of EULAs around the world.

  1. lkrupp

    Joined: Dec 1969

    -2

    Absolutely

    "Between this and the German cloner. I think we're going to see Apple tighten its control of selling retail copies of Mac OS X."

    I agree. You will probably have to provide proof that you own a Mac, registered in your name in Apple's database before you get to buy a copy. Or they could just stop selling it retail, period. Prove you own a Mac and then Apple sends you the copy.

  1. testudo

    Joined: Dec 1969

    +1

    Re: Absolutely

    Are you people insane?

    "You will probably have to provide proof that you own a Mac"

    Yes, I can see it now. Someone walks into an Apple store, goes "Hmmm, Snow Leopard. Sounds cool. Yes, I'd like to buy that!" and the staff goes "OK, I'm going to need to see proof that you own a Mac. An original sales receipt. Plus I'm going to need to see some ID so I can verify that it is you who owns it. And then you'll need to bring the Mac into the store here so we can scan the hard drives to make sure these files are actually yours, and not someone else. Finally, we're going to need to see credit card statements from all your accounts to make sure you have not made any purchases from any of the clone makers over the last 6 months"

    And this, I'm assuming, because if you own a Mac, you wouldn't buy a clone? Actually I would argue that most clone buyers are already Mac owners/users, so you're proof of purchase is just dead right there.

    The only way to stop purchase is to not sell it at all or try to put in restrictions to make it hard to install on non-Apple hardware (which they already have).

  1. testudo

    Joined: Dec 1969

    +1

    Oh

    And do you really think there's so large a market for clones that Apple is going to run scared?

    And just to offer a sense of understanding, all this article is about is that Psystar is allowed to submit amended counterclaims. Not that the claims are valid (if they were, they wouldn't need to amend them, would they?). Just that they can file them.

    This is far from a sign that Psystar is going to win this case.

    But you'd be foolish to buy from Psystar anyway, as all they sell is a hacked version of OS X (which is where they will go down). Now, the EFI-X module that let's you install OS X on hardware with no modification. Now that's something that Apple might get scared about.

  1. manleycreative

    Joined: Dec 1969

    -2

    Yeah well...

    Lest we forget. There was a time when the OS was only sold with Mac computer and you could only by updates, not the full version of the system. Am I correct?

    I say go back to that model. If you don't have a Mac there is no need for the OS.

  1. malax

    Joined: Dec 1969

    +1

    easy enough

    If this became a real issue it would be easy enough for Apple to include some sort of serial number check in the OS install or upgrade process. Or even easier just only sell OS X upgrade software. You have to have OS X installed already (or have a valid Apple product serial number) or the software won't install. Since only Macs from Apple come with Mac OS X installed, anyone else would have to do something illegal or shady to make it work (which would in direct violation of copyright law or the DMCA).

    Language to the effect that "this software can only be used to upgrade a computer running Mac OS X" would presumably be more enforceable than the "Apple branded" language they currently use. And the software would attempt to enforce it, so making it work would be an attempt to circumscribe copy protection, which is a legal no no.

  1. ViktorCode

    Joined: Dec 1969

    +5

    Bad for consumers

    Do someone really think that Apple would just take hit on the biggest chunk of their income - hardware sales? If mac cloning would be given green light then Apple will come as far as installing dedicated encryption chips to prohibit OS X running on anything but the Macs.

    Take a good look on where Apple's income's coming from. Even setting inconvenient user unfriendly restrictions on OS X and buffing it with activation will pay off. Hackintosh community will enter arms race and shrink to the few percent of the current level - few people would want to go through SO much pain just to run OS X. And ways of restricting OS X are so numerous, both technical and market-oriented.

    Apple ignored hackintosh community. It will never ignore hackintosh business.

  1. testudo

    Joined: Dec 1969

    -3

    Re: Yeah, well

    Lest we forget. There was a time when the OS was only sold with Mac computer and you could only by updates, not the full version of the system. Am I correct?

    You're wrong. In the Pre-System 7 days, you didn't even have to buy the upgrade. Just go to your local apple specialist, bring some floppies, and get a copy of the OS. Free.

    With System 7, Apple started charging for the OS. But updates were either updates that you could get for free, or full paid new versions. (OS 7.0.1, 7.1 were free updates, OS 7.5, OS 8, OS 9, and I think OS 8.5, were paid - and full - versions).

    I say go back to that model. If you don't have a Mac there is no need for the OS.

    OS 10 has always been full versions. Only the disks that come with computers are limited to the computer model it was delivered with.

  1. testudo

    Joined: Dec 1969

    -4

    upgrades only

    BTW, does anyone want a scenario where you're stuck with upgrade disks, so, if you've got a G4 tower which came with 10.3, you'd need to install 10.3, then upgrade to 10.4, then upgrade to 10.5?

    Business customers and IT consultants will not be happy with this type of scenario... h***, they were pissed that there was no one single Intel boot disk until 10.5 was finally released.

  1. testudo

    Joined: Dec 1969

    -4

    incorrect

    EFI-X produces a dongle that allows Mac OS X to be installed on systems, although the company recently stopped working with a US distributor that had clearly marketed the device to install Apple's OS.

    That is wrong.

    First, it isn't technically a dongle (as one usually thinks of a dongle, it is connected inside the case, not off a USB port on the front or anything).

    Second, they didn't stop working with the company. The company changed its name (since it implied it was associated to EDI-X), and they stopped specifically selling machines running OS X. But you can still buy from them the computer, you just need to purchase and install the 'dongle' yourself.

    Third, their web-site still mentions OS X, it just isn't so upfront about it.

    Lastly, the EFI-X device has a much higher chance of working with OS X updates, because OS X is not hacked in any way in order to get it to run. The device basically adds the EFI to the system, which generally only Apple has bothered to use (I guess people just love their BIOSes).

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