Why Psystar can’t do whatever it wants with copies of OS X

Wed, Jul 29, 2009

Analysis, Featured, Legal, News

Psystar, the company Apple’s suing for illegally selling non-Apple hardware running OS X, issued a statement yesterday announcing that it had hired a new law firm, and that they’re looking forward to answering Apple’s legal challenges head on.

Included in the statement is an attempt by Psystar to defend its actions.

Everyone here values openness. And that’s how we’re going to fight Apple: in public. We have nothing to hide. We buy hundreds of copies of OS X legally, from retailers like Amazon and Apple itself. We’re probably one of Apple’s biggest customers. Then we install these copies of OS X, along with kernel extensions that we wrote in-house, on computers that we buy and build. Then we resell the package to people like you. That’s it.

Well when you put it that way, it doesn’t really seem like Psystar is doing anything wrong at all.  But Psystar’s telling of the story is overly simplistic, if not purposefully misleading.

Psystar supporters argue that software purchasers have the right to do anything they want with legally purchased programs.  So if someone wants to put OS X on a PC, or sell the install disc on eBay, or even use use the OS X install disc as a coaster for a Steve Ballmer mug, there’s nothing Apple can legally do to stop them.  And you know what, that’s 100% true.

The difference is that Psystar isn’t a 16 year old kid toying around in his basement with OS X and a Dell Mini 9 – it’s a corporation intent on making a profit by selling modified versions of OS X on PC’s.  Psystar isn’t a “user”, it’s a re-seller, and as such, it’s roped in by certain laws that simply don’t apply to a guy off the street who picks up a copy of Leopard at Best Buy.

Psystar’s actions damage Apple’s brand, and is essentially false advertising

Imagine going into a bookstore and buying a copy of Harry Potter.  After finishing the book a few hours later, you realize that you weren’t that big a fan of the ending.  So being the creative type, you write up and print out an entirely new ending, take out the last 50 pages from the original and replace them with your newly written prose.  Now imagine setting up a website and selling the new copy by touting the fact that it provides the full Harry Potter experience, but with more action than the original.  Now imagine purchasing 10,000 copies of Harry Potter from surrounding bookstores, changing the ending on all of them, and selling them nationwide in order to make an easy profit.

That’s essentially what Psystar is doing with OS X, so you can’t really argue that they can do whatever they want with purchased software when they’re modifying it to their own liking, and selling the new product on a massive scale as an Apple OS X experience.  The fact is that it isn’t an Apple OS X experience, a fact evidenced in a number of hands-on reviews of Psystar’s systems.

The Mac OS is tightly integrated with Apple’s hardware in order to produce an optimal user experience.  Psystar’s modified version of OS X might run on a PC, but it just doesn’t provide the same polish and user experience as Apple products.  Just because Psystar claims it does doesn’t make it true.

A Psystar computer is essentially a modified version of Harry Potter.  It might say Harry Potter on the cover, and the first few chapters may indeed be spot on, but taken as a whole, it’s a subpar version of the original.

Admittedly, the above synopsis doesn’t take into account the full-breadth of legal arguments that will arise when litigation begins in a few months, but it serves to illustrate how misleading and simplistic Psystar’s statements truly are.

Psystar likes to advertise itself as the little guy taking on a big evil corporation, but the truth is that it’s a corporation looking to make a quick buck off of the hard work of others.  It’s as simple as that.


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13 Comments For This Post

  1. Spencerian Says:

    You used an excellent example (fan fiction) to illustrate the point of derivative content. In fact, J K Rowling has had to sue a number of people for this very reason; fan fiction threatened her rights to her product. Likewise, Apple cannot allow others to dilute what they produce through a derivative experience that would ultimately cost them time in support, or worse.

  2. Nem Wan Says:

    The counter-argument is that what Psystar is doing is no different than what any other PC company does, except that for the software component of their product, they’re bundling Mac OS X instead of Windows. Mac OS X and Windows are functionally equivalent, interchangeable parts of a computer system. The big difference is between Apple’s and Microsoft’s business models, not between Psystar and other PC makers.

    Apple’s integration claim is not convincing in light of the fact that Mac OS X obviously works fine on non-Apple hardware once Apple’s artificial measures to prevent it from doing so are defeated. The claim Apple should be making is that they’re not being paid enough for Mac OS X when Psystar buys it, because retail copies of Mac OS X are priced as upgrades to the full license included with a Macintosh computer. Apple doesn’t want to make this claim because they know Psystar would be willing to pay.

    Apple doesn’t want competition in Macintosh-compatible computers, even though market forces have determined that Macintosh computer hardware is technically identical to other PCs. Apple used to sell computer hardware that was truly different in processor and interface technologies but the market could not sustain that. What hardware incompatibility there is now is artificial, inserted solely to block competition and protect profit margins.

  3. anon Says:

    Of course, you also ignore the first-sale doctrine which basically means once you sell something it is yours to do with what you please. But people are so happy to hand their lives over to corporations, soon you will just have revocable licenses to the groceries you buy.

  4. Scott Says:

    The first sale doctrine allows you to sell what you purchase to whoever you want, it doesn’t always allow you to modify a product on a grand scale and sell it to the public as the original.

    Psystar isn’t buying a DVD and then selling it on Craigslist. I’m not sure why people are acting as if Psystar is some crusader for the little guy here…

  5. MT Says:

    Does any other PC manufacturer really write custom code to allow an OS that wasn’t designed to run on their system, run on it? I had no idea that’s what HP, Dell, and Acer were up to. The “restrictions” that you quote aren’t mythical. Apple designed their software to run on motherboard X with EFI Y, and so on and so forth. That’s what they’ve chosen to do. There’s nothing artificial about it. It’s as real a decision as any one that you make. If they want to tightly couple their product to a certain hardware platform, they have every right to do so.

    The argument always boils down to this: “I don’t like what Apple is doing, so they should be prevented from doing it.” They have every right as a company to sell whatever product they choose. However, no-one else has the right to sell something else that is a derivative or a knock-off as the real thing.

    This is basic stuff folks. If you continue to argue by emotion, you’ll end up living in anarchy, where everyone can do whatever they want — as long as they have enough force to back it up. We live in countries regulated by LAW for a reason.

  6. mike Says:

    I don’t get it. I didn’t know Psystar modified the Apple disk, I thought they modified the ROM on the Motherboard so you could boot into 10.5.
    What if someone engineered a VM for PC that could run OS X? Would that be a derivative? I am asking (not trying to make a point)

  7. andrew Says:

    Pystar can not do whatever they please simply because they legally purchase OS X. By installing the software you are bound by the user license. Im not a lawyer but user license is very specific about what you can and cannot do with the software.

    Pystar opens the software, agrees to the user license and then explicitly breaks the terms and conditions. This should really be an open and shut case….

    Regardless of all other legal arguments, Apples creates OS X, says you can use it for A,B and C. If you don’t agree or comply with A,B and C you shouldn’t be using the software.

  8. MacMike Says:

    I’m convinced this is a bunch of young 20 somethings running this company. The legal licensing agreement and restrictions is obvious to anyone with half a brain. They can say what they like, but they’re not going to change laws simply by saying they don’t apply or aren’t legitimate. The Digital Millennium Copyright Act of 1998, already restricts your use of things like DVD movies so you only license the movie and don’t own it even though you purchase the media. They’re not going to overturn that ruling with this nor will they convince any judge that what they’re doing is in violation of the agreement they accepted when they opened the Apple package. They’re just trying to make a quick buck before Apple shuts them down. The bankruptcy filing was a chance to delay to make more money while prolonging the inevitable.

  9. jg Says:

    I understand well why Apple does what it does to lock HW & SW: most people don’t understand the real reasons but they are compelling and the nature of how the law is written simply requires that they be assholes about it even when it’s not intrinsically necessary.

    I’m an Apple Fab Boy but it’s a shame things have to end up this way. I’m a bit schizo about it for this reason. Psystar should have structured their offering better – it could have bypassed this problem and tied Apple’s hands in a Gordian Knot. Bundling is the dangerous choice and mistake.

  10. RLB Says:

    Every time I ready these articles and the comments after the article I come to the same conclusion.

    Just because people are used to the Microsoft Business Model, or the Linux distribution model, doesn’t mean that they have the right to force a business to adopt that model.

    Apple as chosen to make an operating system and hardware that they develop all by themselves and integrate it with their Hardware. They then spend an enormous amount of effort testing how people interact with it and a myriad of other things that are involved in the development of a solution like this one.

    Enter Psystar, and the bulk of people out there who want the experience, and they point to Microsoft as a reason why Apple simply MUST act as a purely Software company. They ignore the fact that with the same investment, testing, development and commitment of 20+ years of hard work, Psystar could do the same thing.

    I’m quite certain that as soon as the Mac went Intel many thought, finally. I can buy a cheap box and slap OSX on it. They never considered what it would cost to support. If Apple really wanted to they could be releasing a Boxed package that takes all the support headache potential of a Hackintosh into account in it’s price and still lose money. Bad idea, they are a business. One that can and should chose its own business model. The Market will sort then out if it is the wrong one. Thieves shouldn’t be allowed to force them into something they choose not to do.

  11. Peter Says:

    Actually, I don’t see why your Harry Potter example would be a problem. No one has lost money.

    Your argument is that Apple is harmed by Psystar’s “false advertising”–claiming a “Macintosh experience” but having little things not work like they would with a real Macintosh. If Psystar is doing so, they must correct their advertising. But they don’t have to stop selling the product.

  12. Tim Says:

    I don’t understand why they don’t simply sell computers that are Mac OSX *enabled*, ie. ready to install OSX – and it’s up the user to actually buy leopard and do the install.

  13. batjam Says:

    The article and comments fail to address the secretive nature of Psystar regarding their finances. When Apple demanded their financial records by court order Psystar packed it in and used bankruptcy to stall. These records are still being withheld. You might ask why if there is nothing to hide. So this is a data vacuum into which I am going to put my opinion that Psystar is funded by Microsoft through elaborate money laundering. The Psystar principles are too small time to do something this daring without a much bigger player having their back, at least covertly and financially.

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