Trust = Apple Ping!
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Posted on 08/04/2008 8:35:57 PM PDT by Swordmaker
Apple lawsuit not just about copyright or EULA issues, says Psystar attorney
One of the attorneys hired by Psystar Corp. to defend it in a copyright- and trademark-infringement lawsuit brought by Apple Inc. hinted that the clone maker will bring up antitrust issues if the case goes to trial.
Colby Springer, one of the three lawyers from the Palo Alto, Calif., firm of Carr & Ferrell LLP who will represent Psystar, wouldn't go into details about legal strategies but spoke in general terms about the case during an interview on Thursday.
"This case has been mischaracterized," said Springer. "There are a lot more complicated issues than just copyright or trademark. There are more complex issues [than those] in respect to the end-user licensing agreement. And antitrust issues come into play, too."
(Excerpt) Read more at computerworld.com ...
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LOL! Didn't Apple and the Beatles do a little legal dancin' over "Apple"? I liked your analogy.
Paging Mr. Galt..
Yep! They both danced with sweet Sue...
First off Psystar should never have went the route they did with their clones. They are in the wrong.However in a small, tiny sort of way I can see where an anti-trust suit could be made. Whether it would hold water is a thing left to the courts and people wiser than me.
So Psystar hired some Shyster to skin a fat cat.. Sounds like that was the plan from the get go..
One well known example was the case where Caterpillar was sued when they would not work on a machine they sold that was under warranty, if you used a third party air filter. CAT lost.
No, it isn't. There are many examples of "Tying" or "bundling" that are perfectly legal. There are several tests that must be met before tying and bundling can be declared an illegal violation of the anti-trust laws.
A tying arrangement is defined as "an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees he will not purchase the product from any other supplier." Tying may be the action of several companies as well as the work of just one firm.When a Mac purchaser buys a Mac, they are not required to pay extra for OS X. It is included with the purchase just as is the Mouse and keyboard. Also included at no extra charge is the iLife suite of applications. You don't buy these components of the system separately.Success on a tying claim typically requires proof of four elements:
- two separate products or services are involved;
- the purchase of the tying product is conditioned on the additional purchase of the tied product;
- the seller has sufficient market power in the market for the tying product;
- a not insubstantial amount of interstate commerce in the tied product market is affected.
Except that the Beatles did license their music to other groups. Otis Redding’s cover of “Day Tripper” springs to mind.
However, I can go to an Apple Store or buy online, a copy of OSX, without having to prove that I own any Apple hardware. I think the issue is, "can a purchased copy of OSX software, be run on any hardware that it can be run on"?
The analogy is better said as the Beatles only allow their albums to be sold directly from Apple (Records) authorized retailers. But Psystar bought a bunch of them and resold them at their own unauthorized record stores, and not in the original slip covers.
Why are they having this fight? Why would a company want to sell something that is not nearly as good as Vista on cheap run of the mill PCs one can build himself? Besides, they only have a puny percentage of the market so what is the big deal?
:-)
Just a little dig at our PC interlopers on these threads.
“software was purchased,”
It amazes me how many people around here make declarative sentences when they have no idea what they are talking about.
I know of no example of Apple ever “selling software”. So how can there be a purchaser?
Apple does not sell software. PERIOD. Get a clue.
However, I can go to an Apple Store or buy online, a copy of OSX, without having to prove that I own any Apple hardware. I think the issue is, "can a purchased copy of OSX software, be run on any hardware that it can be run on"?When a Mac purchaser buys a Mac, they are not required to pay extra for OS X. It is included with the purchase just as is the Mouse and keyboard
The issue is whether the vendor of software licensing for old Macs must also sell, on the same terms, licenses for computers not sold by the software license vendor.To hold that the vendor must do that, you must IMHO also hold that a vendor of a software license cannot charge a higher price for licensing a particular program to run on big iron than for licensing that program to run on an entry-level PC. And I just don't think that works. It probably destroys the viability of software vendors. If AAPL lost that case it would IMHO respond by making the licensing fee for software upgrades prohibitive. Or maybe they could try to require that you trade in your old copy of OSX whenever you upgraded to the latest OSX?
A buyer doesn’t separately purchase Windows when buying from an OEM, but that was still an antitrust issue settled in the 1994 consent decree. OEMs had to pay for Windows to sell any computer. You have to pay for OS X to buy a Mac, likewise you have to buy a Mac to run OS X (according to the EULA).
I think all but #3 can be made to stick, but minus #3 there is no claim. The market is easily in a place where it can disregard Macs if it doesn’t like the tying, so any antitrust claim is bunk. The market also apparently doesn’t mind the tying given that it is increasingly favoring Macs over the viable alternatives that don’t have the tying issue.
It’s hard to press antitrust against a vertical marketer if that marketer doesn’t interfere with the competition. Call me when Apple sells in a majority of electronics retailers, then tells them they can’t sell Windows machines anymore if they want to keep Macs (or iPods or iPhones) in stock. Someone might have a case if Apple doesn’t get laughed out of the office.
Here I think you have the "It's only a license" the vendors want vs. the Uniform Commercial Codes that call it a sale.
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