Psystar, Apple file motions for summary judgment

"If apple allows their os to proliferate on non-apple computers, they have to support that hardware just as they would macintoshes."

Incorrect. Apple has no obligation to ensure compatibility with third party hardware. They also have no obligation to provide any assistance to third party customers. The obligation Apple has is one of a negative nature: it may not infringe on personal freedom in independent marketplace transactions.

Liquidmark wrote:

"Also, it is NOT against the law for Apple to assure that their software doesn't run on non-branded systems. In fact, it is their prerogative to decide what they want to support."

True, but beside the point. No one is asking Apple to provide support for OS X on non-Apple hardware. Even the most dimwitted person is not going to try to call 800-SOS-APPL and ask for support on their Psystar (or home-built hackintosh).

IANAL, but Psystar may not be able to legally justify shipping a machine with OS X installed. But if they just sell you a box with a bootloader that let's *you* install OS X after the fact, I don't see why they aren't in the clear.

"Psystar modifies Apple's operating system software so that it can run on its clone machines."

True, but you must also consider that Apple modifies its own operating system so that it will be incompatible with potentially equivalent but UNBRANDED hardware which might very well not work simply because a particular string that Apple preloads on branded configurations of the SAME hardware cannot be found. Apple, having taken deliberate action to make OS X compatible with processors sold to the general public, also decided to sell OS X to the general public. Not only is it illegal for Apple to insist that end users MUST run OS X ONLY on their branded configurations, it was also illegal to make OS X deliberately crash for the sake of protecting Apple's OS X/Macintosh monopoly interest in the market. Both of these actions are clearly illegal under Clayton Act 3 §, 15 U.S.C. § 14. Judge Alsup is quite correct in calling this problem "one largely of Apple's own making."

Don't get me wrong: I am not condoning Psystar's actions. However, you must realize that Apple needs to take a good look in the mirror if it wants to see the true source of this predicament.

if they put a check for system in there it would not be a useful disk in many cases. like if if you had to install a new hard disk or if you needed to wipe and re-install the OS. I think Apple's intent was to keep things simple for customers. So that purchasers of 10.6 could simply install the OS once and not to get all Window-ish and first install an older crappy OS and then the upgrade on top of that. We should be grateful for that.

What I don't understand is why they did not at least come up with 2 boxes for the disk - one that at least says upgrade on it. Currently there is not "Upgrade" version, even nominally so I can't see how they can enforce the section of the EULA that says 10.5 needs to be there. Oh well.

It is an interesting question. Can they enforce restrictions on use beyond copying?

The safer thing for apple to do would have been to not sell the OS as a complete entity at all. It should have called all its new versions 'upgrades'. Your base OS will come with the hardware and you would only upgrade to newer versions if you want. A recovery disc could be provided with the hardware, which essentially would be the whole OS, but never available for sale.
This way it would have ensured that anybody using the discs for anything else would be breaking the law since they are meant to be upgrades only.

For example, although we know snow-leopard disks have complete OS, if Psystar buys the $29.99 version of the disks and uses it, it would be clearly breaking the law and it will be easier to convince the judges. They will have to buy the full-versions (mac-box-set). However, it would have been better if apple called snow-leopard disc in mac-box-set as 'upgrade from Tiger', instead of complete disc.

NITPICK ALERT:

The Apple side of the scales is missing on the of the chains. The Psystar side shows all three chains coming down to the plate for the scale. The apple side, has the right-side chain obscured by the Apple, but it appears that the Apple should be behind the front most of those chains.

/nitpick

Apple Fail.

I hope, based on the AutoDesk case, Apple fails in this as well.

This is even more interesting as AutoDesk just lost a case about a month ago on this very topic. Someone was trying to resell their copy of AutoCad on eBay, and AutoDesk contended that the user did not own the software, but just a liscense to it, and the liscense did not allow resale of the software. Autodesk was cut off at the knees in trial and their arugment was rejected on first-sale doctrine.

As Phystar is reselling the copy of OSX they purchased from Apple, I think they may have a chance, since they are selling the original copy they purchased from Apple to their end user.

"Psystar modifies Apple's operating system software so that it can run on its clone machines."

Is this true? I though Psystar was emulating the Apple bootloader and leaving the OS unmodified. You can use a normal Leopard install disc with the Psystar software.

I'm not sure your description of the first-sale doctrine is accurate. Specifically the part where you say "any purchaser of a copyrighted product can then make a copy of the product and sell it". I think what the first-sale doctrine actually says is that any purchaser of a copyrighted product can later sell that same item. E.g., if I buy a book, I can sell that physical book to someone else. I cannot copy the book and then sell it to someone else.