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TMO Reports - Apple's Case Against Psystar Comes into Focus
by , 4:30 PM EDT, October 2nd, 2008
In Apple's filing to dismiss with prejudice Psystar's countersuit revealed the tenets of Apples' strategy to win. The basis of Apple's argument is that Mac OS X and Macs do not, in themselves, create a legally plausible market, antitrust does not apply, and Apple has no obligation to share its sources of advantage.
An attorney who has been following the case, and wishes to remain anonymous, explained Apple's argument to TMO on Thursday:
"First, all of Psystar's counterclaims require the definition of a legally plausible relevant market. Second, Psystar's attempt to define the markets as OS X and OS X-capable computers do not define legally and factually plausible relevant markets. That's because the U.S. Supreme Court and all of the U.S. Circuit Courts, that have considered the issue, have rejected the proposition that an company having a monopoly in its own brand of a class of products is a violation of antitrust law. [TMO emphasis added.]
"Even Psystar's own responses admit that Apple's Mac OS X is only one brand of operating system in a vigorously competitive market consisting of Mac OS X, Windows and Linux -- where the dominant player is Microsoft. As a result, Apple has no 'market power.'
"Finally, even if Apple did have market power, according the U.S. Supreme Court and the 2nd Circuit, Apple wouldn't have any obligation under antitrust law to share the legitimate sources of its advantage in the market (for example, valid patent or copyrights) with competitors," he said.
The key to all this is that Mac OS X is just one brand of an OS, a minority OS, in a broader market, and so Antitrust issues do not apply. Apple, in its arguments, has supported these facts that are well accepted in law and confirmed by higher courts, and, accordingly, has asked that the countersuit be dismissed with prejudice.
If Judge Alsop immediately agrees, the countersuit could be immediately dismissed with serious consequences for Psystar's defense against Apple. However, Judge Alsop, with good probability, could also request more discovery to put the matter on record.
"Psystar must either file its Opposition to Apple's Motion To Dismiss on or before the end of the Court's business on October 16, file a stipulated consent to enlarge its time for filing an Opposition, or move the Court to enlarge the time for filing its Opposition. Psystar must win with its Opposition to preserve its case," he said.
Observer Comments
Fri Oct 03, 2008 8:06 am Subject: No, you don't
The issue is not whether you put OS-X on your own hardware. Lots of people are doing that, quietly. Apple is not necessarily happy about it but they aren't going to raise a stink over a hobbyist with a Hacintiosh in his basement. What Psystar did is to install OS-X and then try to sell the boxes in direct competition with Apple. That is what will get them obliterated by Apple Legal.
It is similar to (and I didn't come up with this analogy) Pepsi. You can buy the mix from them and add your own water and CO2 and make Pepsi Cola. You can serve it at a wedding or party with no problem. Your local Pepsi distributor will even help you. But if you were to make your own Pepsi and start trying to bottle and sell it as OpenCola, then Pepsi is going to land on you with both feet. What's more, I doubt any court in the land would rule against Pepsi.
It's not a monopoly to want to control your own product especially when there are other similar products on the market (Coke, Dr. Pepper, Windows, Linux). It's also not a monopoly when the product (Pepsi, Macintosh) is not the overwhelmingly dominant product on the market. Lastly as mentioned above; even if it were somehow found to be a monopoly, that in and of itself does not make it illegal. Microsoft got in trouble for how they used their monopoly status, not because they were found to be a monopoly.
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