Open Tech’s Chances vs. Apple?

This is a follow up of a post from earlier this week: Open Tech: Ain’t Skeert of Apple v. Psystar.

Engadget reported on the issue this morning with a headline of: “Open Tech’s ‘Mac clone’ demonstrates a firm misunderstanding of the law.”

Engadget went on to say:

We’re guessing they figure that as long as they aren’t loading OS X onto the computer themselves, they won’t have any trouble from Apple, but that’s where they go wrong. In addition to the EULA and copyright allegations, Apple’s complaint against Psystar has claims for inducing copyright infringement and infringing on Apple trademarks by advertising non-Apple machines as compatible with OS X which is exactly Open Tech’s ploy here.

So, the real difference between Psystar’s methods and Open Tech’s methods are that Open Tech is not pre-installing OS X on any computer it sells and is not selling OS X to anybody. Open Tech says the following:

*OS X Leopard Will not be pre-installed or included. You can purchase an Open Tech compatible install disk from a third-party vendor install it your self using our Do-it-yourself kit. All other Operating System will be preinstalled*

How would Open Tech fare under the Apple v. Psystar complaint?

Count I: Copyright Infringement – Since Open Tech is not copying, distributing or displaying OS X to anybody. Should be no problem here.

Count II: Contributory and Induced Copyright Infringement – Open Tech is not selling OS X to customers for use on non-Apple hardware, and is not installing OS X on any non-Apple hardware.

Open Tech is selling computers it claims are capable of running OS X. Well, lots of computers are capable of running OS X if you’re willing to work hard enough at it. That can’t be a problem. Open Tech’s problem may be that it will be selling or giving away a do-it-yourself kit for installing OS X on Open Tech computers.

Count III: Breach of Contract: Since Open Tech never installs OS X, they never enter into any contract with Apple.

Count IV: Inducing Breach of Contract: Apple’s Psystar Complaint states:

Psystar … admitted … knowledge of the existence of the License Agreement governing the use of Mac OS X software and of its terms and conditions.

* * *

… Psystar has advised, encouraged and assisted others to breach the License Agreement by, among other things, encouraging those consumers to acquire Mac OS X software and then assisting them to install, use and run it on non-Apple-labeled computers. In so doing Psystar has unlawfully induced breach of the License Agreement by others.

Well, if Apple is correct that encouraging others to buy Mac OS X and assisting them to run it on non-Apple hardware, then Open Tech is in trouble. Of course, if Open Tech is in trouble, then quite possibly anybody who encourages and assists others to install OS X on non-Apple hardware is in similar trouble. I’m looking at you, Hackint0sh, Lifehacker, Gizmodo, TUAW, MacApper, etc. (or even myself for telling you about it!)

Of course, Open Tech is doing a tad more than just providing step by step instructions, like some of the above websites. They are marketing the computers as compatible with OS X and selling or giving away a DIY install kit. That probably sets them apart from the bloggers.

Count V: Trademark Infringement – I have only noticed one use of Apple’s trademarks used on Psystar’s site. Open Tech is displaying a small picture of Apple’s OS X Leopard box art on their site. This could be taken to be a violation of copyright and/or trademark. Could it be some sort of fair use? I don’t know. Any more seasoned trademark attorneys care to address that?

Count VI: Trademark Infringement: Open Tech never called their computers “Open Mac.” It’s a moo point.

Count VII: Trade Dress Infringement – Open Tech doesn’t sell any computers with OS X installed, so no problem there.

Count VIII: Trademark Dilution – Does Open Tech “willfully intend to trade on Apple’s reputation for excellence” as Apple alleges Psystar does? Will Apple suffer harm to its reputation as a result of Open Tech’s actions? It’s hard to say, but I don’t feel so confident that encouraging someone to install OS X on non-Apple hardware equates to illegally trading on Apple’s trademarks.

Counts IX and X: State and Common Law Unfair Competition – In my experience, Unfair Competition claims are very difficult to win, and are thrown into just about every business dispute lawsuit. They’re a catch-all if you fail on your other claims. Apple’s pleading in Psystar was so devoid of application of the law to the facts on these counts, that it’s difficult to understand exactly how Apple believes Psystar’s actions entitle them to relief under these theories.

There ya go. That’s my unsolicited and completely non-official and not-legally-binding opinion of Open Tech’s chances under the Psystar complaint. That ought to instill a lot of confidence, huh?