Get an Open Mac, Get Ripped Off, Get Sued

The Open Computer drama of the past few weeks has been an interesting saga to watch, for sure, but I have refrained from posting on it until today, mainly because I wasn't sure if this was a complete hoax or what was going on with it. But it's starting to seem more serious now than previously, as a recent email blast went out from the company stating the first orders for the machine's have been shipped.

To explain a little of the back story, the Open Computer is a machine that is specifically designed to run Mac OS X, and it's not at all a Mac computer. So what, though, who cares if someone is selling a Mac Clone? Well, Apple does. Apple has a cute little clause in their EULA (PDF) that Mac Software can only be run on Apple branded hardware, and as such, the legality of selling a non-Apple branded machine with OS X is questionable. With me so far? Good, because this is where things get real interesting.

The issue at heart is whether a condition like Apple has in their EULA's is actually legally binding. Common sense would say yes, as it's something you have to agree to in order to use the software, but there are many people on the other side that say that you should be allowed to run the software you purchase legally on any machine you legally own (In full disclosure, I'm one of those... not just toward Apple, but as a general rule). The company behind the Open Computer, Psystar, is not actually selling OS X with their machine. Instead, you purchase the rig for $399.99, then buy a copy of OS X, and if you buy them at the same time, they will install OS X on the machine for you. This whole ordeal seems to be an elaborate way to get around the EULA, as they are simply selling a machine, a separate piece of software, and a service. The Open Computer also was originally called the Open Mac, but the Mac has recently been changed to Computer, I'm guessing to avoid a legal fight on trademark (*cough* New York *cough*)

Apple has yet to officially respond to the company, and possibly for good reason. Don't get me wrong, I'm not saying that they don't have the right to enforce their EULA, but I really don't know how well it would hold up in court. Psystar has claimed that their defense, should it be needed, would be anti-trust violations. I'd be more than happy to hear what the court system would have to say on the matter, personally. I think the real reason they haven't responded just yet is that we still don't know if this company is legit. Since the announcement of the Open Mac, they have changed addresses a few times and have been notoriously hard to get in contact with. These issues are consistent with small start-ups that receive an explosion of interest suddenly, but they are also consistent with scam artists. I'm guessing Apple will wait until the machines actually start shipping and then start down the course of threat and legal action.

To me, what makes this even more fishy, is that if this company is a start-up, where do they plan on getting the money to fight a legal battle with Apple? In reality, there are a few real good DIY guides out there to getting OS X running on your Windows machine if you want to try it, but it isn't the easiest thing to do. The question is whether a company can sell the service of installing OS X on non-Apple machines since that technically is against the EULA? Could they escape this clause since they aren't technically the End-User, merely a service provider? And, even though you technically buy the machine, software and service separately, isn't it really pre-installed if the machine comes with OS X installed out-of-the-box? All valid questions, to be sure, and ones that I hope will be answered soon, but I'm just not convinced that this Open Computer is going to be able to be the catalyst.