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Opinion: Psystar Ruling Could Have Set Precedent for Upgrading Your Mac

This past Friday, your future ability to upgrade your Mac may have been significantly restricted. Psystar, the company that tried to create “open” Macs by running OS X on non-Apple hardware, suffered a quick defeat in its effort against Apple’s (s aapl) OS license restrictions.

No question this was a long shot and Psystar was going for the Hail Mary. Nonetheless, Apple’s arguments and victory in the case could have a chilling effect on any modification of Apple hardware and software. Will your next Mac be as locked down as the iPhone?

We euphemistically call gaining the ability to install any software on a iPhone “jailbreaking.” This allows you full administrative access to your iPhone to modify the software as necessary for your own use. You already purchased the iPhone hardware and a license for the Apple software necessary to run your iPhone–but are restricted in its use? Apple locks you out of making certain changes to your iPhone; every aspect of iPhone usage is controlled by Apple, yet Apple’s fickle and inconsistent App Store policies further complicate matters and virtually beg people to jailbreak their iPhone.

Unlike with the iPhone, we can pretty much do want we want on our Macintosh computers. Installation of hardware and software is unrestricted and Apple exercises no control over how we use our Macs. We can circumvent functions in the operating system and enhance it without a problem. We are virtually unrestricted in upgrading or enhancing our Macs. Manufacturers can write kernel extensions to modify the operating system so their hardware can work. Don’t like the Apple monitor? No problem, go out and buy your own. Apple charging too much for RAM? Go out and buy third-party RAM. Want to add new functionality to your Mac? Buy and install third-party software that enhances the operating system.

The Psystar ruling reminds us that we use our Macs only with the consent of, and the pleasure of, Apple. Even though you “own” your Mac, your ability to use it can be modified, restricted or revoked by Apple without recourse. As Macs grow in market share and more third-party developers come to the table, we’ll be presented with options for our Macs that Apple’s own team can hardly imagine. If Apple starts losing revenue due to such enhancements, Apple can simply disable it. Any attempt to circumvent Apple’s restrictions could be seen as a violation of the DMCA. For example, to increase sales on iTunes, could Hulu be disabled by a future Apple OS? Legally, yes. We are one Automatic Software Update away from an Apple Kill Switch for our Mac.

Conspiracy Theory? Think Again

Before you blow this off as a conspiracy theory, note that similar actions have happened other times in Mac history. The most memorable was back in March 2001, when Apple issued a firmware update that disabled most third-party RAM. Apple RAM worked just fine, but other RAM was suddenly considered “out of spec.” Historians will debate whether this was deliberate or accidental. Eventually it all worked out when manufacturers swapped out RAM and other users avoided the update. In 1999, Apple disabled G4 upgrade cards in Blue and White G3s via another firmware updates. The original iMac had the ability to support a floppy drive, but later Apple purposefully disabled that function. Previous versions of iLife only worked with Apple-supported optical media.

Obviously, Apple is going to vehemently fight to prevent non-licensed Apple clones, and while it may be in the right here, the arguments used could be applied to any modification to the Macintosh OS, especially those used to enable non-Apple hardware to work with OS X. While I agree that the odds are low of waking up one morning and finding your Mac unable to boot due to a “DMCA violation,” Apple consistently argues it is its right to do so and it has exercised that right in the past. How very Microsoft (s msft) of Apple. Just ask XBox 360 owners.

The iPhone is proof of its desire to lock the consumer out of any unapproved modifications. What’s stopping Apple from doing this with our Macs? Financial interest? Goodwill? You tell me.

46 Responses to “Opinion: Psystar Ruling Could Have Set Precedent for Upgrading Your Mac”

  1. You obviously know very little about intellectual property. This ruling wasn’t about what consumers do in the privacy of their own homes. It is about a company trying to make money off of Apple’s work at the expense of Apple. Simply stated, you can’t use a licensed copyrighted product contrary to the licensing terms if doing so is for profit and/or will take from the licensor’s profits. Psystar’s problem was it was a company trying to make a profit on Apple’s work by taking sales of hardware from Apple. The above ruling is in accords with well established copyright law, and nobody who knows anything about copyright law expected Apple to lose.

    As a Mac owner, you own the hardware. There is no license. Apple can’t tell you what to do with the Mac in terms of modifying it. Further, as a legitimate licensee of OSX (e.g. you own a Mac and bought the OS), Apple can’t tell you what to do with the OS provided the use is not for profit and doesn’t interfere with Apple’s business no more the Beatles can sue you for singing, “Hey, Jude” in the shower. That is called Fair-Use. Psystar failed to raise any significant fair-use defense because it didn’t have one.

    You could, however, get in trouble with the DMCA if you post instructions on how to bypass Apple’s copyright protection scheme. Apple doesn’t seem to be going after these type of hacking sites though.

    I for one think Apple in this case has exercised it’s rights fairly. Nobody is forcing anybody to buy a Mac. People have plenty of other choices. Psystar is free to develop it’s own OS, or ship it’s computers with some of the free OSes available. Further, in a free Country, Apple should not be forced to sell anything other then an upgrade version of it’s OS, which is what it does. As a Mac user, I understand the value of Macs is one company controls the whole hardware experience so if I am unhappy I know who to go to.

  2. Can Apple afford this type of move when they are on the roll? No.

    Judging from the actions they are taking regarding the app approval process they are very concerned with PR and no longer are they in the small mind camp.

    Today with their Apple stores they have more to lose when customers stop coming to shop there because of bad press and actions which you insinuate they may carry out.

    And in their after sale services they are bending backward to make Macusers and iPhoneusers happy because they now believe happy users bring more users.

    After reading your piece bring to mind that Apple is stupid and keep make mistakes after mistakes and antagonizing their customers is part of their plan to will bring in more customers. There are enough Apple bashers to do the job.

    One last thought if you are not happy and afraid that they will do what you insinuated you don’t have to use any Apple products.

  3. I don’t have an iPhone because of that crap and if it’s expanded to Macs,then I won’t have a mac either.

    I lived without a mac for a long time and I won;t like it but iI can do it again.

  4. Mac sells well because it works and meets people’s needs. If they did these things speculated on by the author, sales would go way down, so I don’t think they’d do it.

    Otherwise this could be the boost Open Source needs.

    I’d actually like to see it happen, as Open Source, primarily Linux, needs a boost to reach a critical mass to incentivise hardware manufacturers to produce the drivers that will make Linux viable for the masses.

  5. Shadowbottle

    “Obviously, Apple is going to vehemently fight to prevent non-licensed Apple clones,”

    Obviously you mean Apple is going to vehemently fight to prevent non-licensed Apple clones FROM BEING SOLD. Since to date they’ve never had any issue with the OSX86 community. We’ll have to wait to see how much damage Psystar has done on that front. However, you’re being disingenuous by omission here.

  6. All of these comparisons to the automobile market are humorous but completely miss the point. What you can’t do with a car is replicate it, sell the copy and still have the original. If that were the case, neither Yugo nor BMW could stay in business for long without exactly the same protections that software companies have and use.

    Folks who don’t like EULAs should spend some time talking with those of us who write and sell software for a living, or for that matter photographers, print-makers, and artists of many different types.

    • The problem with your argument is that in the cases we are talking about, i.e. modification, copying and redistribution, the use falls afoul of copyright law before it even touches the EULA. The motion that Apple won summary judgment on was for copyright infringement and DMCA violations, neither of which have anything to do with EULA protections.

      “Folks who don’t like EULAs” typically have a problem with EULAs that attempt to covet their firstborn, as opposed to those that are indeed simple protections for the creator of the software. Copyright law and the DMCA cover most if not all rights covered by a EULA; while there are legitimate interests not covered there that can be placed in a EULA, as well as a reminder of copyright law, most EULAs go about 12 steps farther and attempt to dictate what color shirt the user puts on in the morning.

  7. Howie Isaacks

    I think that you’re taking this a bit too far. There are reasons why Apple restricts the iPhone which they have stated on many occasions. Those reasons do not exist for the Mac. Although Apple can stop supporting certain hardware configurations, they can’t stop anyone from changing their hardware. Why would they want to anyway? They would simply compel the other hardware manufacturers to develop the needed drivers and frameworks, and also require them to continue updating them.

  8. This seems a pretty big stretch to me. On the Hulu example, do you really think that Apple would sacrifice potential profit of people who buy expensive Mac computers at high margins (who would switch in a minute to another platform if Hulu stopped working) rather than some media content with which Apple makes pennies? I really doubt it.

    What this case means is that Apple sells OS X as part of a Macintosh computer, and it cannot be used on non-Apple hardware without their consent (which they will not give.) They make very little margin from OS sales, and would gain relatively little by allowing people to buy cheap PCs to install Mac OS than by selling their own hardware. If Apple has learned anything from the days without Steve Jobs, it must be that licensing the OS in a market where Windows dominates is not a profitable business to be in, especially when it cannibalizes their high margin hardware sales. Restrictions as you describe will do nothing but lose significant market share to competitors, which Apple as a company is far too smart to risk.

    Phones are very different, and the recent Rick Astley story perhaps demonstrates Apple’s point of the danger of jailbreaking very well. Most people who buy phones do not do so to be the same general purpose use for which they buy computers, and they seem willing to accept more restrictions than they would if their far more expensive, general purpose personal computer had restrictions on which web sites or apps that they can or cannot run.

  9. It all comes down to this. Business. We can all argue our point of view of closed vs. open; Apple’s desire for better computing or draconian desire for control, the evil empires of MS vs. Apple, etc., etc., etc. But that is all academic and moot in view of this case. Apple is a company in business. They are publicly traded and are in it to make money. I bet I can safely assume that the employees, Board of Directors, investors of Apple have families and financial obligations like the rest of us and NEED Apple to be around and thriving so that they can have paychecks just like the rest of us.

    Psystar is also a company in business. And they have employees, that need that same things as well. Support them or not, they are taking all of Apple’s work and investment, and want to prosper and thrive off of it. I don’t think it’s unreasonable, in the area of business, to want to protect that. I think that if Psystar wants to make money, they should put their own resources in developing an original brand product (be it software, hardware, or services) that customers will clamor and shell out money for.

    Apple is in the HARDWARE business, and the software that they develop is purely for the advancement of selling their hardware and developing a unique brand and customer experience that is in demand (and by the 30+ billion in cash that they have, I’d say they’re business model is doing well). They do not develop software for it’s own sake. Microsoft does that.

    And I agree, that as an END USER/CUSTOMER, if you buy something, you own it. You can do whatever you want with it, as an END USER. You can use the car analogy, whatever… (hey use a toaster analogy if you want). I don’t know of any case where Apple has gone after an individual END USER in court, for violating any EULA, contract, DCMA, or any other “agreement” that you (again as the end user) has agreed to. But violating any of those, you do give up any warranty/guarantee provide by Apple… you’re on your own.

    Psystar is NOT an END USER. What they are doing, is taking another company’s work (product) and then doing some “magic” to make it work to their liking, and then RESELLING it as a business, not as an end user. They want to make money off of somebody else’s work, brand, recognition, etc.

    In the end, that’s what this case is all about. Business vs. business. One business making money that they put a lot of invesment in and wanting to protect it. The other business is wanting a free lunch to make money off of them. (In the animal kingdom, that would define what a parasite does.)

    There may or may not be other ramifications of this case. And those ramifications may or may not impact us as end users. But if I had a business and put a lot of my time, effort, and money to make it sucessful, and someone wanted to take all of that so that they could make money off of MY work, I know what I would do.

    And I think so does Apple.

  10. Frank Phillips

    Your argument is spurious. You ARE free to modify your computer as you wish. Companies are not free to make money piggybacking on Apple’s R&D, their hardware and software, etc. If you want a different user experience, by all means modify your computer. If you want to pickpocket Apple by modifying their hardware and/or software and selling it to users as if it were your own, you are justifiably restricted.

  11. When Apple starts restricting the Mac, I’m gone and many other people too. The iPhone is a special case. They want to sell their experience. The Mac is more tratitional, a computer. It’s normal to use third party software. Apple has to constantly improve their products so people are using them. They should make up their mind and do the same on the iPhone. Let’s see how this is developing in the future.

    And Psystar your article – their is no connection.

  12. I don’t think Apple will do this with the MacOS right away, but I bet the tablet, whenever it comes out, will be locked down like the iPhone and you can only buy “approved” apps — and this will be a device that doesn’t necessarily have a cellular connection (making moot the whole bogus “security” argument the iPhone folks use)

    Once this precedent is set, yeah, I can see Apple gradually moving toward this level of control on the OS. Maybe 10.7 will have an optional “Mac App Store” that is the user’s choice to use, but is easier and a better experience.
    People will start to use this more and more, and it will become the expected way to find and install new Mac apps, with Apple being the gatekeeper.

    Who knows where things will go down the road, but clearly this is a direction Apple wishes to move.

  13. Given the way Apple has totally controlled the iPhone and their App Store policies, is it any surprise they might want to extend this level of lockdown to the OS. Imagine if in the future you buy a new Mac, and the only way to install new apps on it is via the “Mac App Store?”

    I don’t think they could do this with current Macs, but imagine if this is part of MacOS 10.7 or 10.8. I can totally see this happening moving forward…and it might actually make for a much better consumer experience, at least for the average user.

    • I cannot for the life of me imagine any advantage to Apple if they restricted the Mac platform in the same way as the iPhone. Does anyone really imagine the likes of Adobe and Microsoft would acquiesce in the introduction of a pre-vetting and approval process? They’d be more likely to walk away from the Mac platform. Smaller established Mac developers could lose their business if such a process was introduced. Without developers and software the Mac platform would become less popular with consumers. It just isn’t going to happen and competition law won’t allow it.

      As to the so-called Tablet, whether Apple chooses it mobile OS or the full OSX will depend on what they think users will do with it. If users are likely to want to use Word or Illustrator, for example, it’s likely to have the full OSX.

    • “Does anyone really imagine the likes of Adobe and Microsoft would acquiesce in the introduction of a pre-vetting and approval process? They’d be more likely to walk away from the Mac platform. Smaller established Mac developers could lose their business if such a process was introduced.”

      The likes of Adobe and Microsoft wouldn’t walk away. There’s too much money on the table for them to do so. This is the same reason that Adobe is hellbent on getting Flash Player onto the iPhone, even going so far as to set up Flash (the development software) to output semi-native iPhone apps.

      The second part of that, though – you’re right. We’d see the same problems we do with the existing App Store, and eventually small developers will walk away.

  14. I think you’re just scaremongering. As I understand the judgment it rules out modification of OSX for “resale”. It wouldn’t prohibit an end user making their own modifications for their own use.

    There’s certainly no possibility that Apple could lock down the platform in the same way as the iPhone. As developers have been able to offer software for Macs since its inception, and Apple has encouraged them to do so through its published APIs, it would fall foul of competition law (both in the US and abroad), if it sought to change those arrangements. It would be viewed as a restraint of trade and anti-competitive.

    • Thank God – finally somebody with something intelligent to say based on the law! I think that Apple would consider it a violation of license to modify the non-open parts of the OS for personal use but doubt that they would take action. However trying to lock down the OS, for instance by preventing the use of a browser other than Safari, or a word processor other than Pages, would definitely attract attention quickly from Attorneys General at both the federal and state levels.

  15. The RAM thing in 2001 was a technical thing, and only illustrates that Apple tends to use the best RAM available. Good quality 3rd party RAM was NOT AFFECTED.

    This is a very STUPID article that is only meant to paint Apple in a bad light. The iPhone has to be ‘locked’ so that it doesn’t become a huge security risk.

    The Mac is the most open platform available. They do want you to actually buy a Mac to use the OS X software, but the barely even enforce that. Your assertions are ludicrous.

    • The Mac is open? That’s a joke.

      Both Apple and Microsoft are closed OSes. Use linux if you want an open OS.

      I like the Mac, as the UI is a true pleasure to use, but don’t pretend Apple is some great, open, loving company. They are just a small version of Microsoft with much better designers (and Steve Jobs!)

  16. designer26

    OK lets relax and use our brains for a second instead of just freaking out and using our emotions only. For anyone in favor of Psystar in this case, this has nothing to do with Apple being restrictive. Just think about it for a minute. Imagine if Dell suddenly decided they didn’t want to pay the licensing fee for Microsoft anymore. Instead they found a way to hack the machine to run Windows 7 without going through Microsoft. Do you think Microsoft would be pissed? What if I decided to build my own computers and install illegal copies of Windows 7 on it and set up a website selling them for a fraction of what Dell charges. Should that be legal? Imagine I decided I wanted to make an iPhone. I found a way to hack the iPhone and extract the software. I than found a manufacturer that could make the hardware for cheap and install my hacked OS on it. Should I be allowed to do that? This isn’t about Apple being restrictive and what would happen if they suddenly decide to limit everything anyone does on every machine they make. This is about the framework of American copyright and trademark laws. If judges had ruled in the favor of Psystar in this America as a whole would suffer.

    • I think you’re missing the point here. WHile this specific case was about Psystar violating Apple’s license (and I agree, they were, and should be shut down), the argument Apple made was much more expansive then just that — Apple argued they have the right to control ANY use of the OS, anywhere. Including on your (Apple manufactured) Mac that you already own.

      Legally, Apple could say that simply installing a kernel extension to support a 3rd party mouse violates your license. Not that they would…but legally, they could. That is what Apple argued, and won upon.

    • MuddyBulldog

      That’s NOT what Apple argued and won upon. Apple won because the modifications Psystar made (including the removal of Apple code) were not authorized and the redistribution of the non-authorized OS X with said modifications was infringing.

      That’s a lot different that a 3rd party providing a kext that is then installed by the end-user to support a new mouse.

      This doesn’t set any precedent with regards to the end-user.

    • designer26

      Apple’s right. They do have that right. Its their OS and they have the right to control it. Now, based on the agreement that we all made when we bought our computers and installed our OS, they do not currently have the right to tell us we can’t install kernel extensions in the OS. They have the right to change that in a future OS but as of now they do not.

      Microsoft also has the right to decide they don’t want to license their next version of the OS. For all we know, the next versions of Windows could only run on hardware that Microsoft approves. Legally they have that right. Will that ever happen?

      Car makers could decide that its illegal to get oil changes on their 2011 models from anywhere but an authorized dealership. Legally they have the right to do so. Will that ever happen?

      Seriously, because something is legal doesn’t mean it makes sense. We are comparing computers to phones. As much as the iPhone is practically a mini computer, its still a phone. Lets be honest here, 5 years ago what truly “open” phones were there? We live in America (at least I do). Phones have been limited to carriers and features removed from certain carriers since the beginning. Apple is no different. They had the legal right to choose to limit it to AT&T and they had the right to require approved software. There is more and better approved software for the iPhone than there is open software for any other phone out there.

      People have been cracking and unlocking phones since the beginning as well. Its never been legal its just never been so in the limelight before. Apple has not sued people that jailbreak or unlock their phones. Legally they have the right to do so, but they haven’t. If they choose to do so thats their right.

  17. What?


    You made the jump from Psystar’s court loss to doom and gloom for all Mac users? Wow…

    Psystar lost the case on one key point. They made a copy of OS X for use on their imaging machine to then use to build the clone Macs. That copy was illegally modified (per the EULA, so contract law violation), then redistributed (now running afoul of copyright law). Psystar tried to use the first sale defense, IE, an owner of a copyrighted work can legally sell the work unaltered to another person without the direct permission of the copyright holder and lost.

    Basically, it would be as if I bought the new Star Trek DVD, copied it to my computer, edited a few scenes, then resold the new version bundled with a shrink wrapped DVD. Selling the DVD isn’t illegal, however including an unauthorized modified version of the movie as part of the sale is.

    You can read more here:

    So, tell me, how does that spell the end for all Apple users? The key difference to all your Mac arguments is that Adding RAM to your Mac isn’t illegal, but Apple can legally decide not to support the machine if you bring it to them for a warranty claim and the 3rd party ram is at fault. This is no different then buying a Dell or HP machine. Or to jump into car territory, no different then Ford refusing to perform warranty work on an exhaust problem with a new car after the owner modified the exhaust system with third party parts.

  18. I have been using a Mac since 1986 and can truthfully say “It just works.” I have tried Windows and know lots of people who use Windows… if that’s the kind of freedom you want, then so be it. As for me, I still will buy what “just works.”

  19. Aaron Fisher

    Yet another negative story from TAB. I am amazed you have the will to get up in the morning.

    Never gonna happen. If you think this through for more than 10 seconds it’s so very, very obvious.

  20. I agree with the general thrust of this post (closed + restricted = bad) but it conflates hardware modification, software licensing and the DMCA in a way that really muddies the water.

    The Psystar case is about breach of the OSX license (we license OSX from Apple (rather than own it) in the same way that we license any other piece of non-free software). That license only allows the installation of OSX on Apple hardware. The licenses for closed source software seem to be able to say whatever the hell they like and this is certainly a troubling trend.

    We do /own/ the Mac hardware we buy. The DMCA comes into importance at this point and does make modifications to that hardware illegal. For anyone not in jurisdiction covered by DMCA like laws it’s perfectly fine to do anything you want with the Mac /hardware/ and Apple can’t do a thing about it.

    • Kinda confused. How does the DMCA effect hardware like you say it does? Now it would be illegal to install hardware that circumvents copyright control, but installing third party ram is certainly not illegal although it might void your warranty.

    • MuddyBulldog

      The Psystar case was about software and likely fell afoul of the DMCA because of the anti-circumvention provisions. Don’t see where this would apply to Mac hardware.

  21. This is scary. I don’t think Apple will actually lock down Macs this way, even if they have the legal right to do so, because there’s too much history there and they would get slammed if they tried (court of public opinion still has some power)

    But with new devices, where there is not that history, Apple clearly wants to lock things down and will do so…see the iPhone. I bet the new tablet, whenever it comes out will be locked down like the iPhone.

  22. Nah, you’re weaving a lot of conspiratorial nonsense here. Most of what you write is technically true, but you are putting it in a certain context and leaving out a lot of other info that would make it all seem less like 1984 or Brave New World. A real specific lack is that you talk about this as if it’s all Apple’s doing and Apple’s alone. Every company in the world does these kinds of things and they are nothing really that new.

  23. I see where Apple is coming from, but I think it is a poor move still. I mean, we purchase their products out the yin yang at a major expense.

    It is ours and we have purchased it. Sure when we clicked that little check box or submit button agreeing to their T&C, we said okay do to us what you will. But in the end it is still something we have purchased and own outright.

    That would be like buying a car, throwing a new performance muffler on, and then the Manufacturer saying, nope you can only use a muffler made by us. At what end will all this BS stop.

    • MuddyBulldog

      More accurately it’s like buying a performance muffler and then the manufacturer saying we won’t support (warrant or repair) your vehicle now that it’s been modified which, by the way, is pretty much the way things are now.

      This is what happened with the G3 to G4 upgrade cards. The cards weren’t Apple gear and there was no warranty from Apple that stated they would work or would continue to work. Once you installed it you were no longer supported by Apple.

    • Nah, it would be like putting a 3rd party car stereo in your car, then 6 months later the tranny blows, and car manufacturer refuses to cover it because you modified the car (even thought the stereo has nothing to do with the drivetrain)