On AppleLounge, a blog dedicated to the Apple world, an investigation was recently published into ApplePC, an Italian company offering to sell PCs compatible with MAC OS X at a truly competitive price. The Apple PC manager was contacted to clarify the situation, and specified that the pc on sale is built with components fully equivalent to those Apple mounts on its own MACs.
Unlike Psystar, the Florida-based clone-maker currently in court with Apple, in the Apple PC case there is no possibility of buying a “MAC Pro PC” compatible computer with Mac OS X preinstalled, and the operating system installation is delegated entirely to the customer. The buyer will therefore be solely responsible for the violation of the OS X licence agreement, which strictly forbids the use of such operating system on non-Apple hardware.
This is the crux of the matter. A mere collection of components identical to those used by Apple on its own computers is not sufficient to create a machine capable of running Mac OS X. It is necessary to bypass somehow the check that the operating system performs to determine whether it is running on parent-approved components or not. Members of the Hackintosh community solve the problem simply by installing Leopard (or Tiger in the past) directly from modified disk images available on “alternative distribution channels”.
According to the ApplePC manager, MAC Pro PC buyers are not, however, forced to adopt this piratical solution. The clones assembled by Informatica Ingegneria, although the site does not specify all this clearly enough, give the user the possibility to install Mac OS X as is, directly from the setup disc regularly purchased at an authorised Apple dealer.
There is an alternative method to bypass the problem without resorting to software modification, called EFI-X: a similar system has been implemented on MAC Pro PCs, connected as for EFI-X via an internal 10-pin USB port.
Pressed on the EFI question, the ApplePC manager kept repeating in any case that the system implemented on MAC Pro PCs is not EFI-X nor does it violate any intellectual property right held by ASEM, the company that owns the EFI-X intellectual property. It could not be otherwise, since ASEM strenuously opposes the sale of ready-made clones using EFI-X technology and threatens legal action against anyone breaching this rule.
ApplePc is therefore trying to walk the line of what is allowed by the Apple licence, and seems to do so effectively. The Informatica Ingegneria manager then claims that at the European level the rules imposed by the Mac OS X EULA would not hold up in court.
Regarding the legal issues linked to the EULA, ApplePC has no need to worry because the violation of the Mac OS X contract is ultimately demanded of the buyer’s will.
ApplePc should pay attention to possible violations of various Apple trademarks, entirely independent of product compliance with the Mac OS X EULA. Informatica Ingegneria uses the term Apple in the name of its own site. The word MAC is repeatedly used (is the uppercase enough to distinguish it from Mac?), as well as the Apple logo and the slogan Think more Different. Informatica Ingegneria has modified the images on the site, replacing the Apple logo with a real apple and removing it from the computer images. It is finally undeniable that MAC Pro PC and MAC Book PC are names that immediately recall some well-known Apple products.
The legal opinion
Here is the legal opinion on the matter by Dr. Gianluca Craia, legal counsel of the noze s.r.l. staff and expert in intellectual property in the ICT world:
I premise that a precise comment based on the few elements one can become aware of would risk being hasty, imprecise and perhaps erroneous. In general, however, one can say that marketing one’s own product by exploiting another’s marks and distinctive signs so as to generate confusion in the end user is an act of unfair competition under art. 2598 c.c. no. 1. Further, our Supreme Court has sanctioned several times “behaviours that determine confusion between similar or alternative products of different companies with the effect of diverting customers from the demand for certain products in competition with others on the market”. Protection is all the stronger the stronger the brand penetration in the reference market, and “the apple”, as we know, needs no introduction.
The EULA question is of quite a different scope. Stating that Apple’s EULA is not valid in Europe seems excessive to me. Apple, being the owner of the software, is free to authorise its installation on certain devices and not on others (Cfr., limiting to Italian legislation, art. 64-bis lett. a) l. 633/1941), so save verification of a violation of European antitrust regulations (restrictive competition agreements art. 81 TCE, abuse of dominant position ex art. 82 TCE, leveraging practices etc.), I would say that the management of rights on the software by Apple is more than legitimate; the commercial choice may be challengeable, but not the legal one.
That said, the fact of arranging a hardware system with characteristics such as to run the Apple system, save patent rights, in itself violates no rule. The Apple licence, however, is clear and states that the software is installable on only one Apple computer, which already excludes the possibility of installing on “non-Apple” computers. It is also certain that within OS X some kind of procedure operates by which the software “analyses the hardware on which it is installed”. To install OS X the procedure would have to be bypassed, and the licence consequently violated.
One could therefore hypothesise that the conduct of the end user and of the one supplying such procedure (be it software, firmware, etc.) are, mutually, essential for the licence violation. If this is true, and the harmful event is therefore attributable to several people, all would be jointly liable for the damage compensation (art. 2055 c.c.) suffered by Apple.
In any case, I emphasise that at the moment it is not possible to rule on the lawfulness or otherwise of Applepc’s policy; every hypothesis of legal reconstruction outlined above cannot dispense with comparison with the concrete case, since everything remains tied to the type of technology used and how it acts on the Apple software. It should be a system specifically created to violate the procedure mentioned above and which has no other functions than that, which at the moment, from what I seem to understand, is not known with certainty.