"shocked these guys are still in business"
I'm not. Setting aside issues of how to finance litigation and skipping straight to the merits, there is no settled law here, and a boatload of consequential issues raised. If PsyStar has managed to latch onto counsel that is willing to work on some sort of modified contingency basis (as it appears is the case), then this is hardly a laughing matter for Apple.
Start with the question of sale vs. license. You'll find case law on both sides, but notably including SoftMan v. Adobe Systems, where a California federal district court nuked the notion of "license," holding "Software is sold, not licensed."
If something's sold, then it's a minefield to try and meaningfully restrict its use, bumping up against restraint of trade.
Then there is the EULA. Again, we have case law on both sides when it comes to legality and enforceability, and nothing settled up the appellate chain. I'm sure you're well aware of the problems with boilerplate/fine print and adhesion contracts. The intersection with UCC only complicates matters.
Then there's the "tying issue" that's been such a thorn in Microsoft's side. Apple can argue it's not a monopolist and therefore not subject to the monopolist standard, namely b/c it's got a small percentage of the computing market. The opposition can argue that Apple has monopoly-equivalent control over an entire computing platform, and therefore subject.
It may sound like a laugher to think of a couple guys in a warehouse in Hialeah taking on mighty Apple's mighty legal team. But I don't think anyone would be laughing if Dell decided to crash the party and said "we're willing to pay Apple their license fee for their OS, just the same as we're willing to pay Microsoft their license fees -- why would Apple try and block us ... unless they were concerned about losing monopoly control and the ability to artificially jack up the prices of their hardware?"
Even if Apple were to win such a confrontation legally, it would be a P.R. disaster, as the achilles heel of "Mac tax" and "overpriced" and other such terms would be front and center getting splashed across the press daily.
In fact, it may be that Apple is concerned enough that it might not prevail, and for that reason has taken the matter to binding arbitration rather than the formal courtroom smack-fu route, specifically so it can avoid precedent, avoid appeal, and seal the record from public view.
I would say none of that is a particularly difficult concern b/c Apple can "break" hardware configurations with software updates and upgrades. But Microsoft didn't fare so well on that front, and that would be another road of tears with a bad ending.
Which leaves ... the strategy of using proprietary hardware, then tuning the OS to run solely on that proprietary hardware. Problem solved. Except for risking finding yourself right back to the backwater mess it got in with the PPC consortium.
I don't view this is as a joke at all. I do NOT want to be stuck back in a proprietary backwater universe again. AFAIC, competition is good for everyone, most especially the end user, and it wouldn't bother me in the least if Apple was forced to license to anyone willing to pay. For starters, I don't fear that Apple would "lose" money. As I've detailed before, only a relatively small percentage of customer revenue results from the initial box sale. And on that sale, only a portion of the profit comes from the hardware -- the bulk comes from the software (that is, if you recognize the software at market value). I think the MAJORITY of Mac purchases would still be made on Apple hardware. Apple makes high quality, compelling hardware for which most people aspire and are willing to pay up. And the "lost" hardware sales, would only see a partial loss of the initial box sale profit -- as the software sale would still be made, just through another entity. No doubt in my mind that would be more than offset by the additional software sales of an openly licensed OS, where incremental gross margin is over 95%.
AI
