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Infinite Loop / The Apple Ecosystem

Mac cloner guilty, but “hackintosh” tools will persist

Mac clone maker Psystar is down for the count—a federal judge has ruled that …

Apple has won a landmark victory against Mac clone maker Psystar, though it doesn't spell doom for the rest of the hackintosh industry just yet. US District Judge William Alsup ruled late last Friday that Psystar had violated Apple's copyrights when distributing Mac OS X with its machines, and that the company was also in violation of the anti-circumvention provisions in the Digital Millennium Copyright Act. As a result, Judge Alsup dismissed Psystar's counterclaims and ruled in favor of Apple, but Apple still has a long road ahead if wants to shut down other hackintoshers.

The legal battle between Apple and Psystar began more than a year ago in July of 2008, several months after Psystar introduced its first bargain-basement Mac clone for $399 that could run Mac OS X 10.5 (Leopard). Since then, the legal fight has been a drama-filled soap opera—Psystar's original countersuit was thrown out completely, followed by a bankruptcy filing that revealed that Psystar owed its law firm more than $88,000. In July of 2009, Psystar changed its mind on the whole bankruptcy angle—which Apple believed was a stall tactic to begin with—and switched to Jammie Thomas lawyer Kiwi Camara.

All the while, Psystar has been selling its products and even marketing new ones, such as an Xserve clone and an EFI tool meant to help individual users put Mac OS X on their hacktintoshes (a tool met with much skepticism by the Internet at large). Clearly, the company had confidence enough to poke the Apple fate bear, but that confidence was apparently misplaced.

In his Friday ruling, Judge Alsup upheld Apple's claims that Psystar was guilty of copyright infringement. This is in part due to the restrictions the Mac maker has in place (and Psystar circumvented) that prevent Mac OS X from being installed on non-Apple PCs. Judge Alsup did note that Psystar didn't specifically modify Mac OS X, but instead installed the circumventing software on its own machines sold with the operating system. Still, this action constituted "facilitation of circumvention" and was a violation of Section 1201(a)(2) of the DMCA.

Additionally, Psystar had argued that it was protected by the doctrine of first sale (which says the original creator can't decide what someone does with a product after it was sold the first time), but Judge Alsup didn't buy it. "[First-sale doctrine] provides immunity only when copies are 'lawfully made.' The copies at issue here were not lawfully manufactured with the authorization of the copyright owner," Alsup wrote. (Even though Psystar includes an original Mac OS X DVD with every machine, the version of OS X installed on the computers is not the same version on the DVD.)

Although Alsup handed Apple a major victory in this fight, it's not entirely over—for Psystar or the rest of the industry. Apple had made other claims against Psystar—including breach of contract, trademark infringement, trademark dilution, and unfair competition—that were not addressed in this particular ruling and will "remain for trial." The two companies are scheduled to hold briefings through the month of November to discuss what, if any, relief (*bling bling*) Apple may get as a result of the ruling, and a final hearing will be held on December 14.

Psystar has a ray of hope left in this case, but the ruling's language indicates that the clone maker's success on the remaining claims is unlikely. Psystar did not respond to our request for comment, but the Electronic Frontier Foundation's Fred von Lohmann doesn't think this is necessarily a death blow to the hackintosh industry as a whole.

"While the ruling is a serious setback for Psystar, I don't see it having much impact beyond the facts of that case," von Lohmann told Ars. "On a number of important points, the outcome was driven by Psystar-specific factors, such as Psystar forfeiting one of their strongest defenses by failing to plead it in time. Moreover, my understanding is that the commercial 'hackintosh' industry has moved on to selling software that enables the user to bring their own PC and OS X DVD, rather than selling a pre-installed solution like the one at issue in the ruling."

Indeed, that's the angle Psystar is going for with its aforementioned EFI bootloader tool that it's selling for $50. Although various parties have been critical of the software, it seems that this is where the industry might focus once the Psystar case is over. Another company called EFi-X attempted to market a similar booatloader that would enable individual users to install OS X on their PCs (UPDATE: a reader pointed out that EFi-X's new US distributor is ExpressHD). For now, other hackintosh enthusiasts may want to turn to the open source world to get their fix, but we may soon see more companies trying to sell software that makes DIY hackintoshes easier.

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