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Company claims Psystar is "harming" its brand by creating other "infringers" via "trafficking in circumvention devices"

Rebel modders have struck at Apple via a modified kernel which reenables Atom support, allowing installation of OS X on a broad range of third-party hardware; something forbidden under Apple's closed hardware empire. 

However, Apple's legal team is preparing to strike back at the modding community, seeking to bury the largest commercial entity to support modding -- Psystar.  In a new filing with Judge William Alsup on Monday, Apple claims it has the right to a permanent judgment against Psystar under the U.S. Copyright Act and Digital Millennium Copyright Act (DCMA).  The judgment would prevent Psystar from selling products, ending the firm's campaign of rebellion. 

Apple accuses Psystar of helping to spread the growing rebel movement against its closed ways by "trafficking in circumvention devices."  Psystar has been selling a virtualization product called Rebel EFI, which allows OS X 10.6 ("Snow Leopard") to be installed on non-Apple hardware with Intel processors.  Apple says the product is causing "unquantifiable" harm to its brand.

Phil Schiller, Apple's senior vice president of Worldwide Product Marketing, writes in an affidavit, "So long as Psystar continues these practices, the harm to Apple and its brand will continue.  I believe Apple should not be required to file a new lawsuit to stop Psystar from infringing Apple's intellectual property each time Apple releases a new version of Mac OS X. Requiring Apple to file multiple lawsuits to stop the same infringing conduct would be unfair, expensive, and a waste of the Court's and the parties' resources."

Even if Psystar loses the case, it can effectively win if it thwarts Apple's request for a permanent judgement.  Florida-based, Psystar didn't even break even in 2008 and 2009 and currently has less than $50,000 in assets.  Thus it doesn't stand to lose as much from a simple order to pay damages, if it can prevent an order to cease and desist its operations.

Mr. Schiller, though, says that his company will only be happy if the rebellious Psystar is stomped out for good.  He states, "Even if Psystar could pay damages, the harm to Apple's brand, reputation and goodwill is unquantifiable."

Apple has already scored a summary judgment against the Mac cloner.  It will now attempt to obliterate the company and kill the corporate side of the modding community once and for all with a December 14 motion hearing in San Francisco court.

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What came first? The Hackinstosh or Psystar?
By weskurtz0081 on 11/25/2009 8:57:30 AM , Rating: 1
I am pretty sure people were able to make Hackintoshes before Psystar was a commercial entity. Will this really change anything in regards to cracked Apple software? Doubt it.




RE: What came first? The Hackinstosh or Psystar?
By amanojaku on 11/25/2009 9:07:15 AM , Rating: 4
Psystar is an organization, a hackintosh is an idea. It's hard to squash ideas, but you can easily squash a company that is breaking the law, and get money out of it, to boot. The biggest plus is that any ruling validating Apple's claims sets a precedent for future suits. Not too many organizations are going to want to play Psystar's game in the future. Too bad for Apple. There's a lot of money to be made from software and partner licensing...


RE: What came first? The Hackinstosh or Psystar?
By swizeus on 11/25/2009 9:30:07 AM , Rating: 2
Why share a pie when you can have the whole ? In apple's case of psystar, if, at the end apple is sharing license, it will just hurt the image of Apple brand itself, QC will even worse when others can make the hardware. So sharing a piece of pie in apple's case will rot the whole pie... would you share one ?


RE: What came first? The Hackinstosh or Psystar?
By amanojaku on 11/25/2009 11:36:09 AM , Rating: 4
quote:
Why share a pie when you can have the whole ?
Apple may have the whole Apple pie, but Apple doesn't have the whole PC pie. MS has most of the PC pie, and it doesn't even sell PCs. That's the power of licensing and partnering.
quote:
In apple's case of psystar, if, at the end apple is sharing license, it will just hurt the image of Apple brand itself, QC will even worse when others can make the hardware.
Quality control? I guess you missed the last few years where there were OS X security holes, data loss, hardware failure, and broken systems out of the factory.
quote:
So sharing a piece of pie in apple's case will rot the whole pie... would you share one ?
It hasn't hurt MS, Linux, Sun, the BSDs, and any other vendor allowing the OS to run on any equivalent hardware. Sure, Apple makes most of its money off of hardware, but there will always be that loyal following of Apple-branded hardware. In fact, people like myself who like the OS would buy the OS license to run on another system, rather than just sticking with Windows because of legal and technical constraints.


RE: What came first? The Hackinstosh or Psystar?
By Tony Swash on 11/26/2009 6:17:01 AM , Rating: 2
quote:
Apple may have the whole Apple pie, but Apple doesn't have the whole PC pie. MS has most of the PC pie, and it doesn't even sell PCs. That's the power of licensing and partnering.


The latest figures show Apple has nearly 50% of the income from the desktop sector

http://www.betanews.com/joewilcox/article/Nearly-h...

and 90% of the profit in the laptop sector.

Thats the power of the Apple model.

MS is still chasing desktop market share and consequently slowly but surely losing the game. MS can't even chase market share in the mobile sector where Apple have crushed them. I for one am so very happy to see the waning of MS dominance - it brought nothing except the establishment of third rate shoddiness as a market standard.


By omnicronx on 11/26/2009 12:35:34 PM , Rating: 2
You do realize that the article you linked only includes retail sales, i.e normal consumers going to the store and buying a computer or a normal consumer buying from Dell or HP.

This study would not include a business or school buying computers. In other words around 80%+ of the market. Thats is a lot of missed revenue. MS still leads in Revenue by a long shot when you take the entire market into account.

Its a great model, don't get me wrong, the problem is their model is only attractive to the normal consumer. Cost will always play a huge role in any business decision, not so much with the average consumer.('ooooo perdy'...)


RE: What came first? The Hackinstosh or Psystar?
By weskurtz0081 on 11/25/09, Rating: -1
RE: What came first? The Hackinstosh or Psystar?
By michael2k on 11/25/2009 10:11:29 AM , Rating: 3
Apple doesn't care if people create Hackintoshes.

Apple cares if someone is selling Hackintoshes.

Therefore they get rid of companies selling Hackintoshes.


RE: What came first? The Hackinstosh or Psystar?
By omnicronx on 11/25/2009 12:49:40 PM , Rating: 2
But thats not what this is about. Its about their EFI bootloader, not about the previous injunctions which Apple has already won(and with good reason) for actually selling hackintoshes.

This product is not selling a PC, nor is it selling OSX, its just a bootloader.

I just don't see any grounds here, they are going to have a terribly hard time proving the EFI bootloader is illegal. If they cannot do this, they will most likely have no case.


RE: What came first? The Hackinstosh or Psystar?
By michael2k on 11/25/2009 2:00:09 PM , Rating: 2
They use the EFI bootloader as the tool through which they gain a permanent injunction over Psystar:
"In a new filing with Judge William Alsup on Monday, Apple claims it has the right to a permanent judgment against Psystar under the U.S. Copyright Act and Digital Millennium Copyright Act (DCMA). The judgment would prevent Psystar from selling products, ending the firm's campaign of rebellion."

They aren't actually shutting down the EFI bootloader at all.


By omnicronx on 11/25/2009 3:04:41 PM , Rating: 2
quote:
They aren't actually shutting down the EFI bootloader at all.
Yes they are, its specifically part of the proposed injunction which would stop them from selling the software they used to load OSX. Apple has added in a bunch of things that have absolutely no merrit. Don't get me wrong, I 100% agree with the previous injunctions, and heck I agree the previous injunctions should also include any future versions of OSX. What it should not include is things that have yet to be fully proven in court.(or properly defended for that matter)


By Shadowself on 11/25/2009 12:50:30 PM , Rating: 1
If I could uprate this post to a 12 I would.


RE: What came first? The Hackinstosh or Psystar?
By omnicronx on 11/25/2009 12:39:33 PM , Rating: 2
What law are they breaking here? The current injunction specifically mentions the use of their EFI bootloader, and it is what this permanent injunction is based on. Apple does not own the rights to EFI, they just happen to use it. They have absolutely no case against psystars use of virtualized technology to get past the fact that PC's use a BIOS and not EFI.

The user is committing the illegal act here, not Psystar (i.e they are going against the EULA when they decide to load OSX on a non Mac branded machine).


RE: What came first? The Hackinstosh or Psystar?
By Shadowself on 11/25/2009 12:53:44 PM , Rating: 2
The Psystar software is not *just* based upon virtualization technology. If it were, you would be correct. It is not, thus you are not.

Based upon prior rulings it appears that Psystar's implementation intentionally violates the DMCA -- and they are trying to get away with it. Apple is trying to get the judge to make a single ruling to cover Apple for *all* future versions of Apple's OS.


By omnicronx on 11/25/2009 3:17:42 PM , Rating: 1
quote:
Based upon prior rulings it appears that Psystar's implementation intentionally violates the DMCA -- and they are trying to get away with it.
Um No? The previous rulings had to do with how they copied (they bought one retail copy) and circumvented copy protection of the OSX DVD.

Rebel EFI is designed to work with legal copies of OSX, there is no circumvention of copy protection involved.


RE: What came first? The Hackinstosh or Psystar?
By jonmcc33 on 11/25/2009 3:53:38 PM , Rating: 2
quote:
Psystar is an organization, a hackintosh is an idea. It's hard to squash ideas, but you can easily squash a company that is breaking the law, and get money out of it, to boot.


There is no law being broken. Psystar sells their computers with a valid Mac OS X license. Selling it with a pirated copy would be breaking the law.

Installing Mac OS X on a non-Apple product is breaking the EULA...not the law. The argument from the start is that the EULA isn't really enforceable by law.

An example is the SBLA on Windows 7 OEM products sold from NewEgg. Do you know how many people buy those and just install the OS for themselves as opposed to installing it on a PC they intend to sell to someone...exactly what the SBLA states? You don't see Microsoft going after NewEgg do you? Didn't think so.

Nor will you see Microsoft going after any individuals that purchased a Windows 7 OEM product and installed it for themselves. Why? 1) Nobody will admit to it and 2) they still make money off of the license as opposed to that system builder pirating their OS instead.


RE: What came first? The Hackinstosh or Psystar?
By amanojaku on 11/25/2009 4:41:52 PM , Rating: 2
You and omnicronix, and everyone else, should read this:

http://www.groklaw.net/pdf2/Psystar-214.pdf

Page 2:
quote:
Mac OS X on both Mac computers and the DVD are covered by software license agreements that provided that the software is “ licensed, not sold to [the user] by Apple Inc. (“Apple”) for use only under the terms of this License” (Chung Exh. 26 at ¶ 1). Apple’s license agreements restricted the use of Mac OS X to Apple computers, and specifically prohibited customers from installing the operating system on non-Apple computers.
Page 3:
quote:
Defendant Psystar Corporation has made a line of computers called Open Computers (formally known as Open Mac and OpenPro). Psystar has modified Mac OS X to run on its computers and has sold them to the public. The following briefly describes the conduct at issue. Psystar first bought a copy of Mac OS X and then installed it on an Apple Mac mini. Next, Psystar copied Mac OS X from the Mac mini onto a non-Apple computer. This non-Apple computer was used as an “imaging station.” Once on the imaging station, Mac OS X was modified. Psystar then replaced the Mac OS X “bootloader.” The bootloader runs when a computer first comes on and locates and loads portions of the operating system into random access memory. Without a bootloader, Mac OS X would not operate. Psystar also disabled and/or removed Mac OS X kernel extension files and replaced them with other kernel extension files. Psystar’s modifications enabled Mac OS X to run on non-Apple computers. The modified copy became the “master copy” that was used for mass reproduction and installation onto other Psystar computers.
I never said Psystar broke the law; that's for the courts to decide. weskurtz0081 asked "What came first? The Hackinstosh or Psystar?" and "Will this really change anything in regards to cracked Apple software?" I said "you can easily squash a company that is breaking the law". The key point is that if the company broke the law it is screwed. Apple is currently trying to prove that Psystar broke the law so it can discourage copycats who will eventually cannibalize its hardware business. If this is backed by the courts then it will be easier to hit end users with lawsuits, or justify system lockouts or whatever Apple might try. It's called a stepping stone.


By omnicronx on 11/26/2009 6:04:48 PM , Rating: 2
Obviously you have not read any of my posts. I am not in disagreement that Psystar has done something wrong, what I don't agree with the new injunction will effectively stop Psystar or anyone else from selling other products which have not been deemed illegal, nor are they similar in nature to the products deemed illegal. If this were to go through, it would effective shut the door to anyone else wanting to make what is a legal product.

As long as you are not modifying code, it is not illegal to create an efi bootloader that will handle OSX, this injunction could effectively make it illegal, without it ever being deemed as such.

This permanent injunction should ONLY cover the use of any version of OSX using the method which was deemed illegal, no more, no less.


By michael2k on 11/26/2009 2:39:47 PM , Rating: 2
Copyright law got broken when Psystar shipped systems without OS X discs, or the wrong OS X discs.


Damages?
By AyashiKaibutsu on 11/25/2009 10:49:23 AM , Rating: 2
"Apple says the product is causing "unquantifiable" harm to its brand."

Don't damages need to be quantifiable to sue for them? I guess that's why they're not suing for damages and just trying to get them to stop?




RE: Damages?
By KeypoX on 11/25/2009 11:56:51 AM , Rating: 3
It is causing harm to its brand. For instance, I would never have used osx if it wasnt for the hackintosh community. Because, after using it I got to see how crappy it really is. Made me rethink the option of ever buying a 'real' mac.
LOL actually its not that bad but not worth the price.


RE: Damages?
By rcc on 11/25/2009 12:07:55 PM , Rating: 2
As with music/video/software pirating, the actual harm is not really quantifiable. It's somewhere between 0 and 100% of the copies/systems. We know it's not 100%, and we know it's not 0%, beyond that it's a crap shoot.

So they are saying "there is harm", we want it to stop.

When it comes right down to it, if a company's only product is an unsanctioned modification to another company's product. There is probably going to be an issue.


RE: Damages?
By SiN on 11/25/2009 12:12:35 PM , Rating: 2
i don't see the damages that Pystar is actually creating to the Apple brand. They buy legit copies. People know that Apple isn't making the computer they buy if it's Pystar.

Apple just wants the extra income generated by their closed systems.

Apple should stop complaining about if they want to keep a monopoly over their [Apples] own OS.

Apples OS should, however, be legally allowed to run on 3rd party computers as it is an alternative operating system.

I'm just sick of apples double standards.


RE: Damages?
By Shadowself on 11/25/2009 12:57:00 PM , Rating: 2
The error here is that under discovery in the case the court found out that Psystar is NOT buying " legit copies" of Apple's OS. Psystar loaded ONE modified version of the OS onto a single machine and then cloned that machine's hard drive onto the other machines they were selling. No matter what way you look at it, this is wrong.


RE: Damages?
By omnicronx on 11/25/2009 2:59:30 PM , Rating: 2
Exactly, they most likely could have found a loophole if they had not copied and distributed a single copy. For Snow leopard in particular this would require buying Leopard AND Snow Leopard, as the EULA also states that you can only install SL over Leopard (or as long as you legally own a copy).

Psystar could have never legally succeeded in selling these OSX machines even if they had got their copies of SL legally. This is because Apple would have never given them any kind of licensing agreement, they would have had to buy the retail version of each and every copy. You can't be a successful OEM paying retail pricing for an OS.


RE: Damages?
By GWD5318 on 11/25/2009 12:45:20 PM , Rating: 2
quote:
"Apple says the product is causing "unquantifiable" harm to its brand."


Really? So what kind of damage are cracked screens, nuked user information and other little "hiccups" doing to the "It just works" brand,eh?


Apple could be making money
By heymrdj on 11/25/2009 9:35:01 AM , Rating: 2
As has been stated, someone getting your product for free, or in this case only using your software, does not correlate 1:1 with lost sales.

I'm a good example. I've considered hackintoshing a quad boot on my system (7 Pro, Vista Ultimate, XP Pro, and OSX in that order), but I WILL NOT buy a mac. Period. End of story. If i'm spending that much money it better have near the fastest hardware Intel has crapped out to date, not processors that are 2/3 generations ago.

So thx for the injuctions mac, you've lost any possible sales from me. Microsoft and Linux all the way.




RE: Apple could be making money
By tjr508 on 11/25/2009 12:35:43 PM , Rating: 1
It's not about hurting the sales or making money off of their OS. Apple sells an experience. The experience they sell is delivered using only thoroughly tested combos of hardware and software. Apple's market power (price point) is derived almost solely from this user experience rather than their actual capabilities and they have spent hundreds of millions of dollars to establish themselves in this fashion.

It is without question that third party rip-offs are damaging their brand and they are obligated to their shareholders to do something about it. The defends in this case are easy targets since they are openly profiting from Apple's patented copyrighted technology.


RE: Apple could be making money
By HVAC on 11/25/2009 2:49:25 PM , Rating: 2
quote:
Apple sells an experience. ...spent hundreds of millions of dollars to establish themselves in this fashion.


This is a moot point. The court system should not be used to defend business models.

Breaking copyright is one thing, but poking a hole in Apple's cash flow through technical mimicry is not cause for anything other than for Apple to try harder next time.

We need a car analogy ....
How about ... Psystar sells interface plates that allow an Apple engine to bolt up to any old transmission. Apple cries foul because their replacement engines were only supposed to be installed in Apple brand vehicles. So Apple claims that Psystar is hurting their brand because an Apple engine installed in a non-Apple vehicle just isn't the same.

BS.

Now if Psystar is actually shipping Apple engines that they didn't pay for along with the interface plate, then the DMCA is in little pieces all over the floor because Psystar broke it.

Other than that, Apple should shut up. The practical usage of the DMCA explicitly allows interoperability bypasses (Psystar's interface plate).


RE: Apple could be making money
By tjr508 on 11/25/2009 9:35:39 PM , Rating: 2
That's great, but Apple doesn't even sell an OSX license for machines that weren't already purchased with an Apple OS, so I don't understand how they can be selling legit copies.

Would MS be in the wrong for stopping a company from selling computers with only Win7 Update licenses?

I'm not a big fan of of the DMCA and don't have an opinion on what the courts should say, but Apple's brand is clearly being damaged here and they should naturally try to protect it.


RE: Apple could be making money
By omnicronx on 11/26/2009 6:12:32 PM , Rating: 2
The key here is the way they made illegal copies of OSX. If they had actually bought retail copies of OSX for each machine they sold, technically(as per previous precedents) they would not be violating the DMCA. Apple would not have a case based on Psystar hurting their brand image alone, its the fact they are hurting their brand image by doing something illegal, in this case violating the DMCA.


Apple and Psystar
By Groucho99 on 11/25/2009 10:13:47 AM , Rating: 2
So when is Apple gonna go after E-FIX?




RE: Apple and Psystar
By PhoetuS on 11/26/2009 8:44:00 AM , Rating: 2
They don't need to go after EFiX, that company is destroying itself all on it's own. Their EFiX dongles are low quality that die quickly and the bootloader used is simply stolen from the OSx86 community. They won't be around much longer even if Apple doesn't go after them.


By rudolphna on 11/25/2009 9:06:20 AM , Rating: 2
Take a break from the lawsuits. Oh, and while your on that break, you can shove them up your asses. kthxbai




If Psystar was smart...
By vailr on 11/25/2009 10:18:09 AM , Rating: 2
...they would only sell "OSX Ready" PC's, with blank hard drives, and maybe a free copy of Ubuntu. Release any and all special "Boot 132"-type software freely to the open source community. Maybe donate a small sum to the several web site forums that support OSX installation on non-Apple branded hardware.




Who wants to use an Apple?
By KIAman on 11/25/2009 2:48:17 PM , Rating: 2
... there's a sap for that.

What if you wanted to use an Iphone so bad, you compromise on your network carrier?

... there's a sap for that too.

What if you purchased a Mac with 10 year extended warranty and think Apple will honor warranty if you are a smoker?

... and there's a sap for that too.




Apple needs to be swatted
By Gneiss on 11/26/2009 2:32:35 AM , Rating: 2
Imagine the a car manufacturer claiming that you couldnt modify the car [including the electronics]. If I buy a computer, I will use it as I wish and modify it in anyway that I like !Period! including loading any software I have purchased whether the software vendor likes it or not. If the Courts go along with this then they are even dumber than I think - and thats not saying much.




"The whole principle [of censorship] is wrong. It's like demanding that grown men live on skim milk because the baby can't have steak." -- Robert Heinlein











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