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Wednesday, 16 July 2008 03:20

Apple unleashes law suit on Mac 'cloner' Psystar

Apple has finally taken legal steps to shut down Mac cloner Psystar, the company that brazenly offered consumers products running the Mac OS X operating system. The question on everyone's lips is why has it taken litigious Apple so long?

Psystar's strategy was to select a set of components that came close to being able to run Mac OS X, and then add whatever software modification were necessary. Psystar's original OpenMac (later Open Computer) desktop systems were followed by the rack-mounted OpenServ systems which also offered Mac OS X as an optional operating system.

While enthusiasts had been tinkering around with this idea since Apple made the switch to Intel-based hardware, openly selling such computers seemed certain to lead to Apple unleashing its lawyers.

The only surprise was that it took so long.

Anyway, Apple has now formally alleged that Psystar has infringed its copyright. The case will be held in the northern California district court by Judge James Larson, assuming the ordered alternative dispute resolution process fails.

The initial case management conference has been scheduled for October 22, so it will be some time before the matter reaches the courtroom.

Apple's complaint does not appear to be available in electronic form yet, but according to excerpts published by ZDNet the company claims that Psystar's systems are "advertised and promoted in a manner that falsely and unfairly implies an affiliation with Apple", that "Psystar's actions have been committed with intent to damage Apple and to confuse and deceive the public", and that Apple "will suffer and is suffering irreparable harm from Psystar’s infringement of the Apple trademark insofar as Apple's invaluable good will is being eroded by [Psystar's] continuing infringement."


It's hard to see the basis for the first point. Indeed, Psystar's strategy seems to have been to position itself as an alternative to Apple.

The second and third points seem to imply that Psystar's hardware and software patches are of lesser quality to Apple's, so customers get an inferior experience of Mac OS X. While it's most unlikely that anyone buying from Psystar is under the illusion that they're getting a Mac (except perhaps for those that bought an OpenMac before the name change), Apple could be suffer harm if a dissatisfied Psystar customer give up on Mac OS X completely rather than buying a real Mac.

The Mac OS X licence only allows the use of the software on Apple-labelled computers, so if Psystar is firing up the systems as part of its QA process it could be in breach of that agreement. It also appears to be encouraging its customers to break their agreements with Apple.

However, we don't know at this stage whether the licence terms form part of Apple's suit, and in any case there is a school of thought that believes most licence agreements (at least those typically accompanying packaged software) are not legally enforceable. Court decisions, at least in the US, have been mixed.

Whatever the legal arguments used, Apple needs to win this case if it wants to keep control of its platform. One of the reasons often cited for the relative stability of Mac OS X is the relatively small number of hardware configurations. If modified versions of the operating system start turning up on a wide range of white box systems, the Mac's reputation is likely to suffer.

And there's the financial aspects: does the extra profit Apple stands to make on additional sales of Mac OS X licences (the 'expand the market' thesis) exceed the lost profits from people choosing to buy clones instead of Macs (the 'cannibalisation' thesis)? Apple clearly thinks not, otherwise it would be licensing its operating system more broadly.


The news appears to have been broken by IP lawyer Jorge Espinosa of Miami, Florida based firm Espinosa | Trueba.

Apple is being represented by Townsend and Townsend and Crew; Psystar's lawyer is not identified in the papers so far available.

Neither company has issued a press release on the matter.

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Stephen Withers

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Stephen Withers is one of Australia¹s most experienced IT journalists, having begun his career in the days of 8-bit 'microcomputers'. He covers the gamut from gadgets to enterprise systems. In previous lives he has been an academic, a systems programmer, an IT support manager, and an online services manager. Stephen holds an honours degree in Management Sciences and a PhD in Industrial and Business Studies.

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