Apple's move to kill Hackintosher suit denied

Must defend 'monopoly rents'

By Rik Myslewski in San Francisco, 28th September 2009

Apple's motion to toss out a lawsuit filed by pesky Hackintosher Psystar was itself tossed out by a US District Court judge.

Make that one exasperated US District Court judge.

Apple's motion was straightforward. It asked the judge who will hear Apple's suit against Psystar in January of 2010 - William Alsup of the US District Court in Northern California - to throw out a Psystar countersuit filed in August in the Hackintosher's home state of Florida.

Psystar's suit alleges that since Apple is "tying its operating system to Apple-branded hardware," Cupertino is unfairly monopolizing the market for what Psystar dubs "premium computers," and by doing so "collects monopoly rents."

The suit is specific to Apple's new Mac OS X 10.6 Snow Leopard operating system - which is why Apple wanted it thrown out, saying that the new suit was "essentially identical" to the existing legal imbroglio between Apple and Psystar, which centers on the previous operating system, Mac OS X 10.5, aka Leopard.

Apple's motion to dismiss also asked Judge Alsop to reopen the discovery phase of the California trial to allow investigation of Psystar's use of Snow Leopard. That discovery phase had closed on August 21, one week before Apple released Snow Leopard.

Which mightily ticked off Judge Alsup. In his signed order to deny Apple's motion, he wrote: "Apple has fought hard to keep its unreleased product — Snow Leopard — out of this action by, among other things, relentlessly objecting to discovery on Snow Leopard."

Alsup also implied that Apple had intentionally delayed the release of Snow Leopard until after the discovery period had closed. "Apple even chose when to release Snow Leopard and it chose to do so after all opportunity to take discovery on it had ended. The problem is one largely of Apple's own making."

And so Apple now has to deal with both the suit in Judge Alsup's Northern Califonia court and the "monopolistic" suit in Florida.

As Judge Alsup noted, the California trial is "looming early next year" - January 11, to be exact. And in that court, Apple will be facing a judge that's not at all happy with Cupertino's legal shenanigans.

Bootnote

Psystar - which is attempting to burnish its underdog reputation by releasing a new Rebel line of Hackintoshes - invites you to choose the winner of its "I'm a Psystar" ad contest. You can check out the seven finalists here.

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Posted Tuesday 6th October 2009 23:55 GMT

Anonymous Coward

Christmas Wish

I wish I could install OS X on my own hardware selections, along with Linux, Unix, Windows etc. My money, my toys.....

I'll even pay for proper drivers to match up with all my other toys!

Posted Wednesday 30th September 2009 20:11 GMT

Tankut Erinc

Bad examples

The Nintendo comment: I don't think any KIRF company could manufacture a Nintendo DS or Wii clone and sell at a profit. Legal issues notwithstanding, the sheer volume of sales required to be in the black would preclude any gains - so it's pretty much a non-issue.

The VW engine comment: Actually, you CAN buy VW engines and install them in a car of your own making. VW will happily sell them to you, individually or in volume. It's a physical product and not a software thingy that's easy/free (as in without cost, not freedom) to duplicate, so that's another bad example. Anyway you can always buy an R8, dismantle the engine and put it in your beercratemobile.

Back in the day Apple did make proprietary hardware to go with their proprietary software, so it was not much of an issue. But they HAD to convert to the PC side or face extinction, since the competition was much cheaper and quite faster. Now they make PC's - nice ones, but still. Today they have to fight for their former "exclusive" image, if nothing else. Actually, I wouldn't mind having the choice of buying a Thinkpad factory-installed with OSX. Why not? Windows 7 is quite good on its own, but competition is also good - especially since I wouldn't be the one doing the competing, just reaping the benefits..

IMHO the Psystar folk are doomed to fail - but I can't help feeling sympathetically amused at their antics.

Posted Wednesday 30th September 2009 00:50 GMT

Hungry Sean

@richard102

"Apple has a copyright on OS X and its software. In other words, they have a right on every copy and how it is used."

This is not strictly correct. Copyright only covers the right of others to modify, distribute, and produce copies of a work. Copyright does not allow any control over the use of a work and I believe that extends to resale (hence ability to sell used books, software, etc. without asking permission). This is why Apple, Microsoft, etc. generally bring in an additional license agreement to control the usage of the product once in the purchaser's hands (EULA).

In this case, Apple is not suing Psystar for copyright violation (they have legally obtained all copies they are distributing), but for violating the EULA by misapplication of the software. I believe Apple was earlier making some noise about attacking them with a DMCA violation for reverse engineering the EFI code, but I don't think that's going to court.

I think the legal status of EULAs is murky (possibly because the user is badgered into accepting it after having given worst-buy their money?), but I'd be happy to be corrected by someone who knows better.