Psystar appeals injunction, wants to sell Hackintoshes again

John Brownlee ()

Psystar appeals injunction, wants to sell Hackintoshes again

Sometimes, you can just punch and punch and punch a guy until he’s squirting gray matter out of his tear ducts and he just won’t stay down. Psystar’s that guy. Though meatily pounded into a puddle of pulsating goo by Apple’s lawyers, the Florida-based Hackintosh makers have officially filed a notice of appeal in order to revoke the injunction made against them, prohibiting them from selling hardware with Apple’s operating system pre-installed.

On their website, Psystar writes:

We respectfully disagree with courts notion that we are ‘hardcore copyright infringers.’ Psystar has never, and will never, condone software piracy. It’s your software, you should be able to use it where you want to. If you purchase an off-the-shelf copy of OS X Snow Leopard, its your right to use that software.

“A publisher cannot forbid you from reading a book in the bathroom or listening to a music disc while riding your bicycle. There should be no difference in the software realm, no matter how much money Apple or anyone else throws at it. That is the real issue here and what we have always been fighting for.

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Poorly put as that analogy may be, and as much as I love Apple products, I personally agree with Psystar that it shouldn’t be illegal to install software on any hardware capable of running it… but that’s not really the point. Psystar, how many spleens do you need to sneeze out before you stop egging Apple on to beat you down some more?

31 comments »

About the author

John BrownleeJohn Brownlee is news editor here at Cult of Mac, and has also written about a lot of things for a lot of different places, including Wired, Playboy, Boing Boing, Popular Mechanics, Gizmodo, Kotaku, Lifehacker, AMC, Geek and the Consumerist. He lives in Cambridge with his charming inamorata and a tiny budgerigar punningly christened after Nabokov's most famous pervert. You can follow him here on Twitter.

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  • http://cyxodus.wordpress.com/ Payton (aka – Cyxodus)

    “A publisher cannot forbid you from reading a book in the bathroom or listening to a music disc while riding your bicycle. There should be no difference in the software realm…”

    This is intentionally misleading and Psystar is using a flawed analogy to boot. This would be like buying a Mario game, using software to get it to run on an Xbox 360 and then selling them as a bundle. The courts would side with Nintendo and has on many occasions when dealing with software piracy. Which this is.

    I’m really surprised that Cult of Mac fell for Psystar’s trickery.

  • John Brownlee

    Payton, we didn’t “fall for Psystar’s trickery.” Your analogy is totally wrong. You’re totally wrong. Psystar isn’t selling pirated software: they buy OS X retail and pass on the retail copy of OS X installed on their Hackintoshes to their customers. Apple has never once accused Psystar of piracy: their complaint is strictly EULA / DMCA stuff.

  • Ictus75

    No one actually “owns” software. What you buy is a license to use the software in agreement with the terms herein. That was the basis of Apple’s suit: Psystar was violating the licensing agreement. So they may actually “buy” copies of OSX, but the licensing agreement doesn’t allow for them to install it on 3rd party machines.

    You may pay a monthly fee for cable/satellite, but that doesn’t mean you can sell it to your neighbors because you “bought” it. There are a lot of things in the world that work this way and are actually licensing or leasing agreements where you own nothing.

  • John Brownlee

    I agree, Ictus: that’s certainly what software companies want you to think, along with music companies, book companies, movie companies, etc. “Paying for a license” means they can pretty much infinitely charge you for the same media on different machines. And courts are on their side on this matter, more or less! Still, I don’t think that’s the way it should be, and there’s a difference between believing you should be able to play your music on any device (or install OS X on any machine) and wanting to “sell pirated copies” of it to other people, which is what you seem to be claiming.

  • Giorgio

    Brownlee wrote:
    “Psystar isn’t selling pirated software: they buy OS X retail and pass on the retail copy of OS X installed on their Hackintoshes to their customers.”

    Except Psystar was never able to produce any receipts or other evidence that they actually bought retail copies of OS X to pass on to customers. There excuse was that their electronic records were “lost” which is the business equivalent of claiming that your dog ate your homework. In all likelihood they obtained only one retail copy and then kept duplicating it.

    There is also a big difference between an individual consumer buying a retail copy of OS X and installing it on your hardware of choice vs. creating a business by selling these to hundreds or thousands of other customers for profit. I seriously doubt that Apple would really care if you, as an individual, installed OS X on any computer you own. The rules are different if you turn that into the basis for your business, though.

    There are numerous examples of other businesses where this is already prohibited. For example, it is OK for me to buy a DVD and watch the movie on any tv in my home but that doesn’t give me permission to open up a theatre and start charging admission to show that movie to the public. I also can’t take a commercial music CD, make copies of it, put them in a new jewel case and sell them to the public. And I can’t take limited edition prints from an artist and make copies of them and put them up for sale.

    To take an even more ridiculous example, imagine I buy a can of Diet Coke. I can pour it into any glass I choose, after all it is *my* can of Diet Coke, right? However, do you think Coca Cola’s lawyers would not come knocking at my door if I started buying Diet Coke at the supermarket, putting them into new cans of my own design and selling them to the public on the Internet as my own special Psystar’s Diet Coke?

    Why is it so hard for people to comprehend that this is any different from these examples?

  • John Brownlee

    Giorgio, okay, I eat my words: that “dog ate my homework” excuse is really very suspect, and if they did pirate, it really changes everything. Still, every single review I’ve ever read, it is explicitly mentioned that they include a RETAIL COPY of OS X along with their computers. Moreover, Apple did not press a piracy complaint against them, but rather pressed EULA and DMCA complaints. If Apple didn’t think they had a case for the stronger criminal complaint… I’m a bit skeptical that Psystar wasn’t actually including retail copies of the OS. Do you have a link to anything saying that they didn’t include a retail disc with their computers?

    Still, “Why is it so hard for people to comprehend that this is any different from these examples?” The problem is that, in a situation where Psystar is buying retail copies of OS X for every single machine (which it seems like they may not have, but who knows?), your analogies are flawed: in the first analogy, Psystar isn’t “charging admission” to OS X like a movie theater, or rebranding OS X as their own product, like in your Diet Coke analogy. All they are doing in a non-piracy scenario was selling machines capable of running the operating system… and, as a bonus, preinstalling it. Its the preinstalling part Apple has an issue with.

    Also? Given Snow Leopard 10.6.2′s drop of support for Atom processors, I thnk it’s very clear that your assertion that Apple doesn’t care if you install OS X on a PC is false. They care quite a bit.

  • http://www.toxicspark.com Andrew Macdonald

    I also agree with Pystar in that if you buy software, you should be able to install it when and where you want.

    I don’t agree with them selling computers with the software pre-installed, but if a general user goes and picks OS X up off the shelf, and wants to install it on his dell laptop or whatnot, he should be able to do that.

  • cody

    “A publisher cannot forbid you from reading a book in the bathroom…”
    True, but a publisher CAN forbid you from reselling their book in a compilation where it was NOT intended to be read from!

  • Tadeh Bazik

    If Psystar can not buy retail copies of OS X and install it on their own built hardware why can Dell buy Windows software and do the same thing? Actually, why then is it ok for people to buy Windows software and install it on their Macs? Every Apple computer comes with BootCamp pre-installed. But when someone tries to do it the other way, Apple makes a huge fuss. Im the biggest “fanboy” this side of the moon, but on this specific issue I side with Psystar.

  • Giorgio

    John Brownlee, Don’t think of it as “re-branding Diet Coke”. Think of it this way:

    There is no technical reason that would prohibit you from putting Diet Coke you bought at the store in any other container that is capable of holding a liquid. Since it’s *your* Diet Coke, you should be able to put it in *any* container you want, right?. Now I can sell you a glass bottle or aluminum can that holds Diet Coke from my Internet store. However, I can’t sell you those bottles or cans pre-filled (pre-installed) with Diet Coke, even if I did buy it legally at the supermarket. If Coca Cola didn’t prevent me from doing this and you wound up getting sick from drinking from a contaminated bottle I sold you, Coca Cola would be liable.

    Furthermore, Psystar was guilty of violating the DMCA which explicitly states that it is illegal to use a mechanism that circummvents a copyright protection scheme. I’m not personally in favor a the sweeping intent of this law as it seems to violate ones ability to make legal copies of movies or CDs for personal backup (fair use). However, I fully support it when it comes to preventing businesses from getting rich by selling someone else’s product without their consent.

  • Giorgio

    Tadeh, I’m sure others will chime in, but the answer to your question is that Microsoft doesn’t sell computers. Except for their entertainment division (XBox) and their keyboard & mice (re-branded but built by Logitech), Microsoft is a *software* company. Their whole business model is based on the idea of you installing their software on someone else’s hardware. Microsoft *wants* to sell you a copy of Windows to install on whatever computer you own. Apple does not.

    Dell has an agreement with Microsoft to sell computers with Windows preinstalled. Psystar has no such agreement with Apple.

    Apple is “mostly” a hardware company which develops software custom built for its products as a way of differentiating itself from the competition. Any other PC maker is free to design and write and include their operating system on the PCs they sell. In fact, in the early days of personal computing, many companies such as Commodore, Atari, and Apple did this.

    You can be sure that if Dell decided to create and sell their own unique operating system that competed against Microsoft, they would not look too kindly to HP/Compaq selling it preinstalled on their own PCs without Dell’s permission.

  • http://www.szilveszter.ca WS

    @John

    You are right, no need to eat anything. Whether Psystar bought legitimate copies is a moot point. The principal issue was their distribution of software that directly circumvented Apple’s own measures of allowing OS X to be installed on Apple hardware only. This applied to the PCs they sold and to the RebelEFI software as well. Anything that circumvented Apple’s protection made them in violation of the EULA.

    Anything else didn’t merit attention as a decision in favour of Apple would mean all operations would cease. Pressing the issue of OS piracy would be a waste of resources. Don’t quote me on this, but I vaguely remember a review of the Psystar PC, and the review did take a snap of the actual OS X DVD. But again, my memory is sometimes wrong…

    Lastly, Apple most definitely cares when people install OS X on a PC. They make money by producing hardware. That is their business model. They make very little from OS X. The fruit of their labour is most definitely in the hardware and this component of their business returns them the largest profits. Porting OS X to the PC is a serious issue for Apple and I’m sure one that was gleaned even before they dropped the PPC arch.

    As for Psystar’s analogy, it is valid (I don’t know about sound). Sure that’s the case, but last I checked I owned the book I bought. As previous replies have stated, software is licensed, which incidentally carries with it these kinds of regulations. But there are valuable differences between books and software, ones that just are captured by Psystar’s overly simplistic drivel.

    I mean, let’s face it, they aren’t “fighting” for anything noble here. If they were fighting for the betterment of society and the freedom to use software on any kind of hardware, they wouldn’t be selling the RebelEFI. Nor would they be packaging and selling PCs with OS X on them. Nor would they be stealing code from the OSS community to make those two enterprises profitable. They simply want to package a product under a different name and profit from it, all the while stealing other’s peoples (Apple and the OSS community) hard work.

    They’re about as noble as Hitler, who tried to make a “better world” by wiping out millions of innocent people. Please…

  • joe

    I wanna be able to play my Wii games on my PS3. Make it so, Psystar.

    blowtards

  • Paul

    You may own the book, but you do not own the copyright.

  • Mattzook

    Why. Won’t. They. Just. Die.

  • fred edison

    That does it. Additional (as if you didn’t already have enough) proof that P$y$tar is reality challenged.

  • porkchop1234

    This may be a little off topic but I think it sort of puts things in better perspective and maybe will make some blogger’s see another point of view.

    Apple is very concerned about their OS X being installed on other pc’s that I have no doubt of. The thing is although I love their products I have a hard time taking them seriously when it comes to Psystar when every Mac that comes out of their production lines has boot camp capable of running Windows. Matter of fact you go to any Apple store and they even have Parallels selling openly on their shelves.

    My point is if Apple really wants me to take their complaints about their OS X being installed on third party machines seriously then they should practice what they preach and stop offering machines with boot camp and selling Parallels.

    Personally I think Psystar is a idiot company and I hope they get beaten down even more. My main point is if I decide to buy an OS X disk it really shouldn’t be anyone’s business if I choose to install it on a Mac or a PC configuration of my own choosing. The only reason Apple is so proprietary towards their OS X is because they want to force the customer to buy their Macs. Its a money issue for Apple nothing more and nothing less.

  • Dave

    “My point is if Apple really wants me to take their complaints about their OS X being installed on third party machines seriously then they should practice what they preach and stop offering machines with boot camp and selling Parallels.”

    What does Boot Camp and Parallels have to do with OS X on third-party hardware? Boot Camp and Parallels have nothing to do with running OS X on non-Apple hardware. Boot Camp and Parallels (Parallels is not an Apple product, btw) allow the running of other operating systems on Apple hardware. Boot Camp lets a user run Windows on Apple hardware; Parallels on a Mac requires OS X.

  • http://cyxodus.wordpress.com/ Payton (aka – Cyxodus)

    @John

    I still stand by my statement.

    I also see that you avoided dealing with my analogy of a company bundling Mario, custom software and a competing system. IF you don’t like that analogy, then lets say it was the Wii’s OS instead of it’s games. The courts would still slap that down.

    Over the years, dubious companies have attempted to allow Nintendo’s software to run on different platforms. Both US and international courts have ruled that this is piracy and has upheld video game companies’ EULA and copyrights.

    Psystar is playing the same game (pun intended) but instead has attempted to justify its actions by wrapping itself up in a morale flag. They have claimed that they are trying to free OS X. The US court system has seen through this ruse and have dealt with them.

    Apple is a different company than Microsoft. MS is a software company that makes money off the licensing of its OS. Apple is a hardware/software company that uses its software to sell its hardware. By stripping Apple of its software exclusiveness, it would end up hurting their hardware sales and ultimately the company itself. What Psystar and Apple’s competitors want.

    If you support Apple, then you must be opposed to Psystar.

  • http://cyxodus.wordpress.com/ Payton (aka – Cyxodus)

    “Why is it so hard for people to comprehend that this is any different from these examples?” – Giorgio

    Because either these people are ignorant or have ulterior motives.

  • http://cyxodus.wordpress.com/ Payton (aka – Cyxodus)

    @John

    If they can’t legally prove that they purchased OS X, then we must assume that they didn’t. It’s as simple as that.

  • Gavin

    The argument about Apple being two faced because of boot camp is completely invalid as Apple state that you must have a suitable license for whatever OS you run under Boot Camp.

    Under Microsoft’s’ terms, this must be a full retail or corporate licence and not an OEM as supplied with a new computer. Microsoft make software available as retail, upgrade and OEM with different pricing and limitations on what you can do with it. You can not move an OEM copy between machines but you can with retail. The confusion for most people is when an OEM copy is upgraded and the machine is replaced, the upgrade can be moved but not the original OEM software that it upgraded. Also Microsoft will not provide support for OEM copies, they will tell you to contact the OEM supplier. The reason for the price differential is due to the difference in terms. Some retailers will sell you an OEM copy along with a piece of hardware, but this is due to a rather loose interpretation of the rules and not really allowed by Microsoft although they turn a blind eye to the practice as they still get their thirty pieces of silver and they don’t have to provide support.

    Also I thought that OSX as sold by the Apple stores was not licensed as a full copy but as an upgrade to the copy supplied as part of the original hardware purchase even if it will install on a blank hard disk.

    Also, I buy Apple computers for home for the whole package of hardware and software, not just OSX.
    The choice of an Apple computer is a much a lifestyle choice as any other.

  • Manuel

    This thread of comments was eye opening for me, thank you all!

    My two cents: MS has a different business model than Apple, which sells hardware first. So Apple, as the producer of both the hardware and the software, has the right of tie toghether his OS with their hardware and sell them. Since their profit comes mainly from hardware, giving the permission to install MacOS on every machine wouldn’t be a wise choice for their balance.

    I don’t particularly like the DMCA (it can be applied against fair-use as someone else noted in this thread), but in this case Psystar’s “we are fighting for your freedom” argument is only a strawman that they are trying to use to save their @ss.

  • LV718

    I cant figure out whats so difficult to comprehend. What Psystar is doing is illegal, point blank. No matter what you tell this ‘JOHN’ guy, he’ll try and comeback to justify his point. You cant buy a artist CD make copies on blanks CD’s and sell it and then act surprised when the artist comes at your neck. You dont own the music, period. This isnt really that complex people.

  • Thomas

    Psystar should give it up, continue to sell generic hardware that will run any OS one chooses, and give away their custom OS X hacks to the torrent community. “From Hell’s heart, I stab at thee….”

  • porkchop1234

    So everyone here thinks that Apple isn’t being hypocritical in their stance that nobody else can install a PAID copy of OS X on a third party computer for their own personal use yet they openly market the fact that their Mac’s can all run Windows?? (By the way for those who don’t know boot camp is known for being hacked MS OS friendly)

    @Gavin specifically
    I never used the words two faced I simply pointed out they should practice what they preach. Do you really think MS actually likes the idea that their biggest competitor Apple has Macs running their OS and that boot camp is hacked OS friendly? I can guarantee you they don’t. The only reason they don’t actually do anything about it is because the bad publicity would be incredibly damaging and they already have had enough bad press with crappy OS like Millennium and Vista. They don’t need a PR nightmare that would only serve to make Apple look like the little media darling being pestered by the big bully.

    I find it quite hard to believe that all bloggers here are taking the other side of the fence. I could care less about Psystar my point is NO COMPANY should ever have the right to tell me what I can or cannot do with my BOUGHT product whatever it is if I’m using it for my own PERSONAL USE. I’m not disputing Apple’s or any other companies legal rights to profit from their own labors I’m disputing that as an end user who already paid my 30 pieces of silver to company (fill name here) for a product I shouldn’t be limited to how I can use it for my OWN PERSONAL USE.

    Look at the movie and music industries as a wider example. Under their copyright laws you can’t even make your own backup copy of a movie/cd just in case your original copy gets damaged. That’s total bullshit and smacks of mega corp greed. I already paid once why should I have to go out and pay a second time if my original copy somehow gets damaged? I shouldn’t. Heck they don’t even want you to rip it to your own computer and the industries have spent countless tens of millions if not more in failed copy encryption security.

    Look at the Amazon Kindle as another example. If I want to buy books to read on a Kindle I have to buy it from Amazon and use the Kindle’s own proprietory file type. What happens 5 years down the road if my Kindle suddenly conks out or if I just decide I want another piece of hardware to read my e books on? What happens is I’m SOL and have to go out and buy all those books all over again if I want to use it on another type of device. Why should I have to be forced into using a certain device if I don’t want to?

    The main question I want people here to actually stop and THINK about is when does the legal rights of company X warrant them to INVADE your own PERSONAL LIFE and VOID your own PERSONAL RIGHTS as a consumer?

    Everyone stop and give this question a good think because there’s by far more going on in the big picture then just Psystar or Apple.

  • porkchop1234

    P.S.
    Please pardon the bad grammar. I wrote this quickly late at night just before going to bed and didn’t bother to proof read it until after I hit send. My apologies concerning the bad sentence structure.

  • http://cyxodus.wordpress.com/ Payton (aka – Cyxodus)

    What is it with people like porkchop1234 and John? They can’t see past their own emotional desires to realize that this would hurt Apple and that the courts have ruled it ILLEGAL.

    Get a life people and stop acting like Windows hackers.

  • imajoebob

    Not to get stuck in the mire, but piracy includes the unauthorized use of a product. It’s not just making illegal copies. Installing OS X on non-Apple hardware is an unauthorized use of the product, and is therefore piracy. Even if Psystar actually did have receipts showing they bought a ton of copies of OS X, installing them violated the EULA, and pirated the software. You may not condone piracy, but you certainly seem to enjoy it.

    As for Psystar, have they considered hiring Ricky Schroeder as their celebrity spokesperson?

    Yeah, that’s pretty arcane, but anyone over 35 will get it. And it’s very clever.

  • ray

    To all
    What needs to be challenged here is the Apple’s EULA, that ties their OS to their machines. Which in fact our just regular old PC’s with an Apple logo stamped on it; and don’t give me the quality control that Apple has, that just does not cut it! I have an old 1989 IBM still running.

    Just because Apple gets a bunch of lawyers to drum up a lame EULA and then gets a judge to stamp the approval does not make it right.

    By the way other countries allow the end user to install OS X on any PC, and there is nothing Apple can do about it! Don’t ask me which countries just Google it.

    Comments welcome!!

  • Nick

    Why doesnt Apple just sell full version retail copies that can be installed with non-Apple computers. That would make since just like MS sells upgrades to upgrade a previously purchased version of windows and the full retail version to be installed on new computers Apple could do the same thing. End of story make both sides happy, to make sure everything works out they can put a stop as to have the full copy have a key to activate and the upgrade require the previous version os cd to do a full install with a clean hdd.