Apple v Psystar

It appears that the Apple v Psystar case(s) are getting a bit more interesting from the legal standpoint.

But, rather than discuss the motions and moving of the parties I think it best to discuss the relative benefit to consumers should Apple or Psystar win in the end.

Certainly Apple has the legal right to sell the combination of their OS and their hardware. And, if you think about it, such a combination could certainly provide some benefits to consumers. But, of course that is not really the question that the cases raise.

The real question is whether Apple can prevent anyone else from offering hardware that runs the Apple OS. This is a completely different question.

For one this question is not a copyright question at all. It is a market restriction question. And it may not even be a licensing question. It is a market restriction question.

Now if were advising someone in the software business that they could restrict hardware competitors by picking and choosing who you license your software with and copyrighting the software, I would have to tell them that using copyrights and licensing to preclude hardware competitors is likely to fail in the long run. That objective is outside the intended use of copyrights as expressed by Congress.

Simply put copyright law is intended to restrict the unauthorized duplication of copyrighted work. And that is fair and simple enough. It is not intended to restrict hardware competition. And, you have to add to that the practice by Apple of selling or licensing their Apple OS fully independent of any hardware. And that is important as well.

You also have to take into account that every copy of the OS running on some other hardware has resulted in a sale for Apple of their OS. The OS is not being duplicated or distributed in such a way that Apple is denied their revenue. The revenue is there for every copy running on a Psystar (or other) system. So just where is the revenue loss for Apple. It is not on the copyrighted product. Rather it is only on hardware sales.

To be honest, consumers would be much better off (and perhaps Apple would be much better off too) if they (Apple) did not try to restrict their sales exclusively to Apple hardware. Doing so takes nothing away from the benefit of a combined hardware/software deal directly from Apple. If such advantages do exist they remain in place. And Apple can continue to benefit accordingly.

But, Apple taking the route that it does restricts additional software sales independent of hardware. And it restricts software sales that might otherwise take advantage of the entire virtualization marketplace.

But, taking the approach used by Apple aside the real question is whether Apple can restrict hardware competitors by using copyrights on software and licensing restrictions.

Certainly Apple can refuse any warranty protections if a customer choses to use the software in an “unapproved way”. But, my gut reaction is that it will not be successful in the end claiming a copyright violation. Could a book publisher claim a copyright violation if the customer did not also live in a certain area or buy some other product along side the book? Perhaps if the book were only sold in such a manner, but Apple does sell the OS separately through a number of channels. Perhaps if Apple only distributed the OS together with hardware, the outcome might be different.

But, rather than restricting Apple sales to combinations of hardware and software (which would certainly be possible), Apple is selling the OS separately and trying to impose copyright and contract violations upon consumers (or OEMs) if they do not restrict it use in some regard. And that goes beyond what congress intended copyrights to due. And it may very well go beyond what Apple can accomplish by way of license restrictions (EULAs).

Would consumers be better off if HP and DELL also offered hardware that ran the Apple OS? Certainly those customers who wanted that other hardware for some reason would think so. And certainly those customers that buy other hardware may very well wish to run the Apple OS instead of or along side of Linux and even Microsoft. So what does Apple have to gain by restricting the use of their OS?

In the end, it is not likely to be a copyright violation if Apple gets paid for every copy of the Apple OS in use. And that may be true regardless of how it is being used. Apple may not like it. But, they are not being denied revenue from the sale of their OS. Rather it is the hardware revenue they think they are losing out on. But, as indicated above, congress never intended copyright law to be used to restrict competition for non-copyrighted products. And hardware is not subject to copyright protections (save for firmware, etc).

Certainly if Microsoft tried this stunt, all hell would break loose. But, copyright law and even contract law does not care if you have a monopoly or not. So if Apple can restrict hardware sales using copyright and contract law, so too could Microsoft. And, it would appear that Microsoft does do so with its game machines. Of course, Microsoft does not sell or distribute its game OS separately from the hardware. Apple does. Interestingly enough copyrights and patents do create monopolies of some sort or another.

As it turns out, I am not an Apple customer. Never have been. And never intend to be either. But, consumers at large would be much better off having the choice of hardware on which to run their Apple OS if they so desire. And Apple can do whatever it wants in regard to warranties and support. Apple would provide much better competition to Microsoft if it did not act in such a manner as to attempt to restrict the use of its software.

In the end, Linux is very likely to do better against Microsoft than the Apple OS anyway. And its lack of “restrictions” will be the cause.

Of course, as a consumer I have absolutely no interest in doing business with a restrictive company. And that includes either Apple or Microsoft. To be informative, I dropped Microsoft completely the moment they forced the sale of IE upon all their customers. I never bought a single copy of the Microsoft OS that included IE. I did buy IE 1.0 when it first came out although it came with a 100% mail in rebate. And that means the last version of the Microsoft OS that I ever bought was the original OEM version of Windows 95 (sans IE). Since then it has been Linux only.

I certainly do not support Apple trying to restrict competition in the hardware marketplace. I see no reason to do so. Doing so can not help consumers. Doing so only restricts choices that consumers might otherwise have. And that includes choosing to run the Mac OS (on any hardware).

Simply put nothing that Psystar is doing prevents Apple from making the best software/hardware combination available if that is what they want to do. And nothing that Psystar is doing prevents Apple from getting paid for every copy of the Mac OS installed on any computer. And in the end, I do believe that those facts will be the final facts that determine the outcome of the Apple/Psystar litigation.

The problem is that most cases are not resolved based upon all of the issues raised. The SCO follies are a prime example. SCO accused IBM of copyright violations yet it would appear that those issues may never be litigated much less determine the actual outcome of the cases. It would appear that SCO not holding the copyrights is going to nix the litigation assuming that bankruptcy does not cut it short of even that being resolved. (Actually the en banc hearing of the Novell case is likely to affirm the trial court decision that SCO never did hold the copyrights anyway). But, that means that the copyright violation issues never do make it to trial.

A similar result can be expected in the Apple/Psystar case. In the original case, the lawyers did not revise the complaint after the original decision indicated that the antitrust issues should be dismissed. That may have been a mistake. But, lawyers have to be paid. And the decision not to press the antitrust issues originally could very well be the result of a business decision not to pursue those issues. And, of course, lawyers were changed. And the Florida case filed. So it is hard telling if the important legal issues will in fact determine the outcome. It is fair to suggest the important legal issues have not determined the outcome in the SCO follies. (Important meaning real copyright issues.)