[Macworld]

Post your comments for Apple, Psystar joust in court over antitrust complaint here

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To bad about Megan Chung, because it seemed like Alsup is a reasonable Judge that saw immediately how absurd Psystar's claim really is.

[Cog3125]

This whole scenario leaves me sort of surprised to hear the expression "attorneys for Pystar" since the basic argument sounds like some legally clueless dweeb trying to defend himself.
Its tough to believe someone capable of passing the bar exam would think a case has merit when it centers around calling someone a monopoly for having their own brand name in a widely competitive software field. I mean, "Uhm... hello? Trademark law not your specialty? You might want to consult before you make fools of your clients."
Regardless of who the judge ends up being, any judge has to see that to accept a claim like this would set a precedent that would risk unravelling the whole concept of branding and trademarking (which has ramifications well beyond the software industry). Ain't gonna happen.
This is either pitiful desperation on Pystar's part, or a shyster looking to wring some of their cash from them before they lose the rest in the lawsuit.

[mdawson]

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Springer responded by noting that two product lines were not necessarily comparable and presented Apple marketing materials and product reviews that support Psystar?s argument that Apple has established OS X as a unique brand separate from other operating systems.

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?Apple touts the uniqueness of its operating system? and then in the context of its motion to dismiss says that [OS X] is nothing special,? Springer said. ?They can?t have it both ways.?

Statements such as these clearly demonstrate that the Psystar case has less than zero merit and that Colby Springer of Carr & Ferrell has questionable legal credentials. To state that Psystar's case is rooted in OS X being a separate and unique from other operating systems is beyond specious. How unique or different OS X happens to be relative to other operating systems is irrelevant. It is still an operating system and competes against other operating systems. The real difference is that OS X is linked to hardware produced by the same company that develops the OS.

The second statement is just laughable. Ye, Apple does tout the uniqueness of their operating system, just as any brand in any market is advertised by the manufacturer to distinguish that brand from others in the same market in which that brand competes. By stating that Apple is trying to have it both ways, Springer is employing the same illogic that several Psystar supporters have on these boards. Brands are not market. Obviously Judge Alsup, unlike Springer and other Psystar backers, comprehends the difference.

[Wondercow]

I originally posted this to the first article re: Psystar calling Apple a monopoly (here) but I think it fits here to:

Psystar?s lawyers, however, made the case in their counter-claim that Kentucky Fried Chicken has a 100-percent monopoly in the Kentucky Fried Chicken bucket space, which is so different from other chicken buckets, including Popeye's Chicken, that other chicken buckets can?t be considered substitutes.

?The Kentucky Fried Chicken bucket market is distinct and unique as compared to other chicken buckets ?including but not limited to the Popeye's chicken bucket,? said Psystar. ?As such, Psystar alleges that the Popeye's chicken bucket is not and cannot be considered an effective substitute for the Kentucky Fried Chicken bucket; the same holds true for any other chicken bucket.?

Psystar traced Kentucky Fried Chicken's own marketing to bolster its contention that Kentucky Fried Chicken's bucket is distinct from other chicken buckets, and thus so unique that there is no alternative to Kentucky Fried Chicken and its 11 herbs and spices.

[Cog3125]

Wondercow said:

Psystar?s lawyers, however, made the case in their counter-claim that Kentucky Fried Chicken has a 100-percent monopoly in the Kentucky Fried Chicken bucket space, which is so different from other chicken buckets, including Popeye's Chicken, that other chicken buckets can?t be considered substitutes.

Agreed, that does seem to be the essence of the argument.

But being "uniquely better than the competition" isn't good enough to qualify as a monopoly. The essential point of the competitive marketplace is that every competitor tries to be "unique" in some way, and then hopes that what they have done differently than the competition is what pulls in customers. Protecting what you've done differently is precisely what brand naming and trademarking is all about, and it's integral to the whole concept of a free market.

So clearly the definition of a monopoly has to root itself in something more profound than "this is so good I don't want to settle for the alternative." In fact, closely paralleling what Apple themselves is pointing out, the mere fact that there is an alternative for them to be superior to flat out contradicts the claim that they are a monopoly. Odd then, that Psystar should mention "trying to have it both ways" because that's exactly what they are doing.

[mdawson]

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Cog3125 wrote:

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In fact, closely paralleling what Apple themselves is pointing out, the mere fact that there is an alternative for them to be superior to flat out contradicts the claim that they are a monopoly.

While we are generally in agreement the above statement is not completely true. Alternatives can exist in the presence of a monopoly. Microsoft is a monopoly in both the operating system market and on the x86 platform as well as a monopoly in the productivity software market. That stated, there has never been a time where Windows has been the only operating system available even when you narrow the playing field down to just x86 hardware. There has also never been a point where Microsoft Office was the only productivity suit on the market.

Microsoft is a monopoly due to their 90+ percent market share in both the OS and productivity software suite markets. Being a monopoly is not illegal, but Microsoft?s penchant for using their market position to make it difficult for those offering alternatives to compete is illegal. Technically, withholding any Microsoft software that is an industry standard from OS X (e.g., Access, Visio, etc.), which is the only viable alternative to Windows, constitutes monopoly abuse.

Apple?s OS market share is at best marginal compared to that of Microsoft?although OS X could be classified as the most widely used *NIX OS?and, Apple?s PC market share is no more dominant than that of any of the other major PC OEMs. Apple therefore, as you would surely agree, in no way has a monopoly position in any segment of the PC market.

[jman3001]

All the other Operating Systems in the world allow you to install them on any machine you want. Apple is the only company that says, "If you want to use OS X, you must buy our overpriced computers."
If the courts agree with Apple, then the courts are conceding that Apple has the right to over charge and hold the consumer hostage, for the right to run OS X, even though the consumer paid Apple for the right to use it, by purchasing the license to use it.
That's like saying, "You can only play this HIT song on OUR machine." But wait, that song plays very nicely on these machines over here. Yes, but you can only play THAT song on our machine, even though you paid for the right to own it.
It's an amazingly skewed mentality for Apple to have. However, they make a boatload of money off the consumer when they work this kind of game.

[Cog3125]

jman3001 said:

All the other Operating Systems in the world allow you to install them on any machine you want. Apple is the only company that says, "If you want to use OS X, you must buy our overpriced computers."

If the courts agree with Apple, then the courts are conceding that Apple has the right to over charge and hold the consumer hostage, for the right to run OS X, even though the consumer paid Apple for the right to use it, by purchasing the license to use it.

That's like saying, "You can only play this HIT song on OUR machine." But wait, that song plays very nicely on these machines over here. Yes, but you can only play THAT song on our machine, even though you paid for the right to own it.

This last part is where it all falls down, of course: you don't pay for the right to "own" software, you pay to license it's use. And NOT just Apple software: read just about any software's EULA sometime. No one ever says they are "selling" the software to you. I mean, think about it: any idiot can copy files. What is there to "own" in a bunch of zeros and ones? The "sale" is a license to use the software, provided by the people who own the copyrights on it, and every such sale comes with conditions set by the owner of the copyrights. Few people realize this, even though every time you run an installer you are prompted to click "Agree" to the terms of the license, how many people bother to think what it is they agreed to or why?

Apple owns the software they wrote. As with any other software author, it is within their rights to set conditions on the licenses they sell. And frankly, they are hardly "holding the consumer hostage" when there are plentiful alternatives to OS X, including one that holds dramatically more of the mainstream market share than Apple. If one doesn't want to pay for the hardware the license insists upon, it's not as if your only option is to return to paper and pencil.

Granted: by limiting what hardware you can run it on, Apple is doing something other operating systems don't. But there is another valid logic in this: If you limit the software to a fixed number of known hardware configurations, you allow better pre-release testing as well as facilitating easier replication of reported post-release problems. As anyone who even so much as makes a hobby of programming can tell you, replicating a problem reliably is the first step in diagnosis and correction. So by limiting their software to systems they sell, Apple slims down their support headaches considerably while at the same time protecting their reputation for quality.

And OK, it's easy to say that Psystar is responsible for any problems that arise from using potentially incompatible hardware, incorrectly assembling it, etc, but the Apple name is the one that's going to be splashed all over any faulty or short lived systems Psystar sells. Apple will be bashed for it exactly as Microsoft is bashed for every Windows problem no matter who built the computer its running on.

Accepting Psystar's argument would mean that software makers cannot set the terms of their own licenses (the only thing really being sold here, after all), and for Apple in particular, it would mean a loss of quality control and, ultimately, reputation. And, yeah, I'm sure Apple does make a "boatload of money off the consumer" (I gather this is the point of running a business) but it's hardly like those consumers have no choice but to buy. You want cheap stuff instead? Cheap is out there, too, in plentiful supply. Go for it.

[mdawson]

Excellent post. Unfortunately, jman3001 has less than zero interest in rationale or accepting the truth of this matter. No less than 100 percent of his posts have been pro-Psystar/anti-Apple FUD that has ranged from specious to more often than not flat out fallacious. Every single post of his has been shot down with facts, often with cited sources, yet he refuses to cease his trolling on these boards.

[jman3001]

Cog3125 said:

you don't pay for the right to "own" software, you pay to license it's use. And NOT just Apple software: read just about any software's EULA sometime. No one ever says they are "selling" the software to you.{quote:title=}{quote}

Great! Then when is Apple going to buy back my OS 6, OS 7, OS 8, or OS 9 version of THEIR software. When you buy anything from Apple, you buy it for life, you don't borrow it. Apple's EULA is the exact problem. It's not legal to say, "you can install the software we just sold you, but it can only be on our computer." That's a real backhanded approach to Sales, and this is a SALE, it's not the public library. I won't be giving this software back for a rebate, it's mine.
Then, the idea that there has to be some kind of quality control over OS X is a REAL laugher. The Psystar machines run OS X just as smoothly as the Apple machines. The only difference is the price. I own both Apple and Psystar machines and I can say the only difference is the start-up "boot". After that it's a level playing field.
As I said before, Apple owns the only Operating System in the world that says, "You have to install this OS on a Mac." That's because once the curtain is pulled, a Mac is an Intel PC with an Apple on the box.

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[quote name='jman3001']
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Cog3125 said:

you don't pay for the right to "own" software, you pay to license it's use. And NOT just Apple software: read just about any software's EULA sometime. No one ever says they are "selling" the software to you.{quote:title=}{quote}
Great! Then when is Apple going to buy back my OS 6, OS 7, OS 8, or OS 9 version of THEIR software. When you buy anything from Apple, you buy it for life, you don't borrow it. Apple's EULA is the exact problem. It's not legal to say, "you can install the software we just sold you, but it can only be on our computer." That's a real backhanded approach to Sales, and this is a SALE, it's not the public library. I won't be giving this software back for a rebate, it's mine.

jman3001 the eminent doctorate in copyright law has spoken. Man you really ought to be admired, you have decided a case one year before it even got to court! I thought you where in to sound engineering, not copyright law. May bad.

You don't get it, you don't give the software back. you paid to use it, you can still use it, so, in other words, you can still be running that Mac Classic, that IIci, your Quadra and your Power Mac 8500 until the end of days. You get it? You purchased the right to use it for life so enjoy. You see, if you used it, then you got what you paid for, If you don't use it, it's your loss, but basically the same thing applies to music. You don't buy the song, it is not your song, you have the right to listen to it with some limitations, you certainly can not compile music that you have purchased into a CD and sell them in a flee market at a profit. Do you see how it works now or should I explain further sighting Movies as another example?

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Then, the idea that there has to be some kind of quality control over OS X is a REAL laugher. The Psystar machines run OS X just as smoothly as the Apple machines. The only difference is the price. I own both Apple and Psystar machines and I can say the only difference is the start-up "boot". After that it's a level playing field.

You are the real laugher, then why are you so hell bent on using OSX if the solution is not better. If you have had trouble with your Mac hardware, you are in the extreme minority. Look it up. Aside from the G5 Macs, Apple has had a pretty good track record, and for that the record, I am typing this in a totally functional bug free G5 tower that never gives me any problems since we bought it in 2005.

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As I said before, Apple owns the only Operating System in the world that says, "You have to install this OS on a Mac." That's because once the curtain is pulled, a Mac is an Intel PC with an Apple on the box.

Nope once the curtain is pulled you will see a well fabricated designed from the ground up integrated computing environment that is gaining market share at two to three times faster speed then the Windows competition. This is not done with crappy hardware, regardless of your small personal negative experience.

[jman3001]

You need to check out the new Open Pro Machines. They offer 3 PCIe 1X slots instead of just 2 in the Apple product, and 2 PCIe 16X slots as well. These are points that make the new Psystar machines attractive to music and video industry people beyond the low $1400.00 price tag.
As far as quality, I've had just as many nightmare problems with Apple machines in recent history as I've seen with PCs. There is no real difference in day-to-day performance. The idea that one machine is better than another, is simply rhetoric.
All the Xeon processors in the world will never excuse a poorly soldered Logic Board or a system glitch that causes your Mac Pro to simply not shutdown, but instead, rev-up fans to full speed. There continues to be 100's if not 1000's of G5 CPU liquid cooling leaks in Apple computers. Anyone get one of the cracked iPhones?
The whole Apple "superiority under the hood" debacle fails to impress those that actually know the life expectancy of the Apple machines. Folks, you're gonna buy a new computer every 3 to 5 years, you may as well save your money from buying shiny boxes and buy something that "Just Works".
I actually don't care how much market Apple has or doesn't have. Rah Rah Apple!! Way to go!! But, When I buy software, I own it for whatever use I choose to use it for, and whatever machine I want to use it on. Hopefully, the courts will see it the same way. If they don't, Hello LINUX!!

[Grapho]

Keep on rambling, a judge decided yesterday to toss Psystar counter suite against Apple, so now only Apple case was left standing. Altho this is not settled yet, this does set a strong precedent in favor of Apple.

Where do you get the poorly soldered logic board statement? You just come out with these delusional statements with the hope that what ailments you have found with your Apple hardware, are common place, and therefor design flaws.

I have a MacPro system and before that a G5. I never experienced your problems, so even thou my account is anecdotal if fully contradicts your also anecdotal experience.

The good news for you is that even if Apple wins, you probably can still install OSX on a none OSX system, as long as you don't do it for a profit, like soon to be defunct Psystar. Sure, you will have to hack OSX all by your self now, instead of having a pre-hacked version installed, but everything has a price. Or like you said, Linux, if you can get the software you need to run.