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Monday, 21 April 2008 10:28

Psystar Mac clone opens Apple's can of worms

In the past week, there has been an eerie silence about a certain issue from 1 Infinite Loop Cupertino, Apple headquarters. A tiny upstart system builder from Miami called Psystar is boldly taking orders over the net for Mac clones - Intel PCs modified to run the latest version of Mac OS X. A can of worms has been opened and the question is what is Apple going to do?

Some media sites have reported that Psystar is a dubious company with no real fixed address and could even be a credit card scammer. However, the latest news is that Psystar is real; its premises are real; and it is already in the process of delivering its first orders.

Reports that Apple initially shut down Psystar's website were wrong. Apple is a powerful company but shutting down a website requires a court injunction, of which there have been no reports. Psystar's website went down because it couldn't handle the monstrous spike in traffic when news of its existence broke. And this is the interesting bit for Apple - the demand for Mac clones is demonstrably huge.

Apple and its legendary co-founder Steve Jobs have repeatedly let it be known in no uncertain terms that the idea of Mac clones in anathema to them. So why hasn't Apple already bombarded Psystar with a legal barrage of writs and demands to cease and desist?

After all, Psystar is not only making PC hardware that uses a software hack to by-pass the Mac Trusted Platform Module (TPM) chip. The Miami system builder is also offering to help buyers install a legitimately purchased copy of Mac OS X Leopard on their new Psystar Open PC box.

Apple's inactivity to date could be merely a case of the hardware giant gathering its legal forces to slap Psystar down so hard that it presents an example to anyone else who dares to challenge the might of Cupertino. On the other hand, it could be a case that Apple knows that its legal position is not as strong as some may believe and it has now been forced into an area where it wishes it didn't have to go.

First there is the issue of the Mac OS X software license. Anyone who argues that Apple is just a hardware company is plain wrong. Here in Australia, I can walk into any Apple reseller's store and purchase a packaged copy of Mac OS X Leopard no questions asked for AUD$158. Aside from the fact that it's a pretty good bargain compared to the price of a boxed copy of Vista Ultimate, it demonstrates without argument that whatever else it is Apple is also a software company.

Given the fact that Apple sells software separately to hardware, there is a question that must be raised about the Mac OS X software license. Can Apple enforce the bit in the end-user license agreement (EULA) which stipulates that a user cannot run Mac OS X on hardware other than a Mac? Psystar says no because it violates antitrust laws. Apple could no doubt argue the toss and drown Psystar in a sea of litigation. However, Apple would probably rather not go there because it may focus attention on an issue that antitrust regulators in the US and particularly the EU may want to get their teeth into.

If a serious antitrust challenge to Apple's Mac hardware and Mac OS X tie-in ever does see the light of day, the implications for Apple could be far reaching. The Mac OS X EULA could end up being deemed to have some illegal clauses. What's more, Apple could be forced to issue updates to all purchasers of a Mac OS X license, regardless of the hardware.

Apple has been very low key about its response to Psystar to date. Maybe it's preparing to go in boots and all and maybe not. Whatever the case, it's hard to imagine that Apple has not been preparing itself for something like Psystar from the day it decided to move to the Intel platform. Therefore, is it too much of a stretch to believe that Apple could in fact have already been preparing a strategy to take Mac OS X outside the Apple walled garden?

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Stan Beer

Stan Beer co-founded iTWire in 2005. With 35 plus years of experience working in IT and Australian technology media, Beer has published articles in most of the IT publications that have mattered, including the AFR, The Australian, SMH, The Age, as well as a multitude of trade publications.

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