I’ve been reading this thread with interest. Most of the replies are not based on legal facts. In spite of what you may think, Apple is in a weak position here. Apple will probably prevail but that won’t be because they have the law on their side. They will prevail because they will make the cost of litigation so expensive for PsyStar that PsyStar will settle with Apple.
First, I would venture to guess that the majority of the posters here have not read Apple’s EULA for OSX. Here’s the link to it so you can read the terms for yourself:
http://images.apple.com/legal/sla/docs/macosx105.pdf
Lots of posts here state that it’s ‘illegal’ for PsyStar to do this or that. Please note PsyStar is located in Florida. Quote the Florida statute that is being violated if you believe that they are doing something ‘illegal’. PsyStar will have to have violated some Florida or Federal law for its actions to be ‘illegal’. What laws has PsyStar broken? Simply doing something that is contrary to a document published by Apple doesn’t make it ‘illegal’. It may be a breach of contract, allowing Apple to assert a civil cause of action against the user. There is no criminal component to it. A court will have to decide that a breech of contract has occurred and decide what remedies, if any, Apple is entitled to.
Apple will have to sue PsyStar in Florida and Florida law will prevail. Apple may try to get the case heard in Federal Court but that is not likely unless Apple can meet the requirements for a federal case. The Apple EULA paragraph 12 states that California law will be used but that most likely would be found unenforceable. California courts have no jurisdiction over Florida business with no California presence unless they agree to be bound by the foreign court. Apple will have to prove that PsyStar is bound by the EULA which isn’t as easy as it may seem. Most likely Apple will forgo the venue clause in its EULA and would file suite in Florida. Apple has a presence in Florida and a jurisdictional fight in California would most likely result in the case being sent to Florida for litigation anyway.
Now if PsyStar wanted to sue Apple over OSX software they would have to sue Apple in California and the forum selection clause would apply. Buy PsyStar isn’t suing anyone.
In order to sue, Apple has to have suffered some damages. How has Apple been damaged? PsyStar is paying full retail price for the copies of OSX. Apple got their pound of flesh for their OSX sale. Now if PsyStar is making illegal copies of OSX then Apple would have suffered damages but for now we will assume that PsyStar is buying legitimate copies of OSX. Apple can not sue just because they don’t like what another company is doing; they have to have a legal basis for their claim. They could ask for relief in the form of an injunction against PsyStar from loading OSX on to non-Apple branded machines but that is a poor strategy for Apple. They would have to go to court every time a computer integrator started loading OSX on a non-Apple branded computer for a customer. This would be vey expensive for Apple.
Some posters have stated that Apple will now have to support these users. Nonsense. Every Apple computer sold has an Apple serial number on it. Apple could easily refuse to support callers who don’t own an Apple computer. In fact, when I bought OSX for my B&W G3 last year, I called Apple for support. The first thing that Apple asked me for was the serial number of my Apple computer. If the computer doesn’t meet Apples published requirements they will not support it, even if it is an Apple branded computer. So Apple has no damages for support issues. In fact, Apple assumes no responsibly for it’s OS. Read paragraph 7 of the ELU. Apple assumes no responsibility for their OS on their own computers! It is left up to the end users to determine fitness of use. So how does the OS running on someone else’s computer cause Apple to now be responsible for support?
Some have argued that Apple sells a complete computer package and the OS is free. The problem with that argument is that Apple sells copies of OSX to anyone who walks into one of their stores and plops down $129. The cost of the OS may be subsidized by the hardware sales but no one forces Apple to charge $129 for OSX. Apple is free to raise the price to $299 if they want. Since they sell OSX as a retail product, a court would find that OSX is not free, it is simply bundled into the price of the Apple branded computer system. So no damages here either.
What are Apple’s damages?
With no damages, what is the course of action that Apple can bring against PsyStar? As far as we know, there is no written contract between Apple and PsyStar. So they can’t sue PsyStar for breech of contract. I am assuming that PsyStar is buying legal copies of OSX from an Apple dealer and re-selling them. That is NOT illegal under Florida law (if you think it is, please quote the statute). It doesn’t violate any written contract between PsyStar and Apple (there is none). The only possible contract breach that Apple can claim is the EULA. It is a shrink wrap license meaning that the terms are not mutual. The user has no ability to negotiate the terms of the agreement. A Florida court will have to decide if the EULA applies to PsyStar.
If your read the EULA you will see that kernel can be changed since it is based on open source software. It’s UNIX. So claims that it can’t be modified are bunk.
PsyStar is a legitimate business that sells computers and other operating systems. Apple will have a hard time convincing a court that PsyStar is the end-used and the terms of the Apple shrink wrapped license applies to PsyStar. Since PsyStar is a system integrator, Apple will likely loose that claim.
So, where is the contractual breach?
Consider these analogies.
If I buy a Ford 5.0L engine and put it in a Chevy, can Ford sue me? Can Ford prevent me from putting their engines in anything other than a Ford vehicle?
Since software is licensed and engines are bought, here’s a better analogy. If I buy a copy of Sony Pictures’ film “Crouching Tiger, Hidden Dragon”, can Sony’s EULA require me to play the movie ONLY on a Sony DVD player? I don’t own the movie; I simply have a license to watch it. Do you think a court would enforce such a EULA?
As long as PsyStar doesn’t infringe on Apple’s trademarks or copyrights, there is very little that Apple can do other than sue and make it very expensive for PsyStar. I’m sure that PsyStar changed the name of their computer based on legal advise about trademarks.
So let’s assume that Apple prevails. What are their remedies? Apple will not get their legal fess from PsyStar. They really have no damages so they won’t get much in compensation. The best they can hope for is that the court will order PsyStar to stop loading OSX on to computers that they sell. PsyStar will be able to continue to sell their computers and just leave it up to the end-user to load OSX.
So that leaves Apple suing the end-user. Apple has to start the litigation process over again. Do you think that Apple would win in court assuming that the copy of OSX in question was legitimately purchased from Apple? What kind of publicity would they get? Can Apple afford to sue each individual that buys OSX and loads it on a non-Apple branded machine?
Apple may have already let the cat out of the bag. XPostFacto lets you load OSX onto unauthorized computers i.e. unsupported Apple Computers.
http://eshop.macsales.com/OSXCenter/...PostFacto.html
Why hasn’t Apple stopped the sale of 3rd party software that violates Apple’s EULA? Could it be that Apple knows that portions of their EULA are unenforceable?
So for all the lawyers here, what are Apple’s damages? What claim would you make if you were to sue PsyStar?
There’s a good chance that Apple will ignore PsyStar and do nothing. They may decide that the risk of loosing is greater than the hardware sales they loose to PsyStar. Apple will have to face a Florida jury which is risky for an out-of-state company. Image if a Florida court invalidated Apple’s EULA. That would be huge loss for Apple.
The ball is now in Apple’s court. Let’s see what they do. I for one will buy a PsyStar computer when I get back from Iraq – if they are still in business. If I get sued the most Apple can do to me is refund my $129 for my copy of OSX and make me use Windows or Linux. Is that a victory for Apple? Think about it. Does Apple want to tell users NOT to use their software? Microsoft would love it.