Another company is preparing to sell Intel-based computers that can run Apple Inc.‘s Mac OS X. But unlike a Florida clone maker that’s been sued by Apple, Open Tech Inc. won’t pre-install the operating system on its machines.
A company spokesman, who said he was a member of Open Tech’s legal team, refused to give more than his first name, Tom. “I won’t say more because of the ruthless sharks that are swimming around,” he said when asked why he wouldn’t provide his full name or title.
Open Tech Inc., which does not list its mailing address or telephone number on its Web site, will sell two different models, tagged as Open Tech Home and Open Tech XT, for US$620 and $1,200, respectively. The Open Tech Home machine will be equipped with an Intel dual-core Pentium processor, 3GB of memory, an nVidia GeForce 8600 CT video card and a 500GB hard drive. The XT, meanwhile, will include an Intel Core 2 quad-core CPU, 4GB of RAM, an nVidia GeForce 8800 video card and a 640GB drive.
Unlike Psystar Corp., the Florida computer seller accused by Apple earlier this month of multiple instances of copyright and trademark infringement, Open Tech will not pre-install Mac OS X on its computers, Tom said.
He acknowledged that Open Tech is, thus, shifting the legal responsibility to users. “In a legal sense, that’s correct,” he said.
Open Tech’s Tom argued that Apple’s end-user licensing agreement (EULA) includes language allowing buyers to install a legitimately-purchased copy of Mac OS X on non-Apple hardware. “The end user on a legally purchased copy [of Mac OS X] is legally allowed to modify a system for his personal use,” said Tom, who would only repeat “I’m on the legal team” when asked if he was an attorney.
“They can’t make a copy [of Mac OS X], but the ultimate consumer of our computers will have to purchase a copy, so Apple’s not being harmed here,” Tom added.
Apple’s EULA (download PDF) specifically bars users from installing Mac OS X on hardware not sold by Apple. “This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time,” the EULA reads. “You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so.”
Tom acknowledged the EULA’s requirement that the Mac operating system be installed only on Apple’s own hardware, but claimed “there’s a little bit of a conflict there” between that requirement and what he said is a user’s right to run the operating system on a modified computer. He also called the language that limits Mac OS X’s use to Apple-branded hardware “the only fudgy spot” in the EULA, and then went on to criticize Apple for having former Vice President Al Gore on its board of directors.
“That’s why you put Al Gore on your board, the European antitrust regulators won’t touch that company,” Tom said. “It’s like paying tribute.”
Open Tech is prepared to do battle with Apple if the Cupertino, Calif. company comes after it. “We definitely would defend this,” said Tom. “The only possible case that Apple can make, the only one that has any chance, would be based on the end-user licensing agreement.”
He also said Open Tech was “sympathetic” to Psystar’s situation. The Florida clone maker, which began selling Intel-based computers with Mac OS X pre-installed starting in April, was served with a lawsuit earlier this month. In that lawsuit, Apple charged Psystar with multiple copyright, trademark, breach-of-contract and unfair competition violations. All stemmed from Psystar’s practice of preinstalling Mac OS X 10.5, a.k.a. Leopard, on the desktop and server systems it sells, Apple said.
In its requests for relief, Apple demanded that Psystar recall all machines that it’s sold with Leopard pre-installed, a move that would probably bring down the company, a noted intellectual property attorney said last week.
Tom declined to give the physical location of Open Tech. “For legal and jurisdictional reasons, we’re not going to divulge that,” he said. “There are so many ways to track people down, someone will track us down sooner or later.”
When asked why potential customers would have confidence in the company’s ability to provide products when they don’t know where it’s actually located, Tom responded: “We’ll just have to overcome those concerns.”
He would not provide an on-sales date for the Open Tech computers. “You’ll have to stay tuned to the Web site,” Tom said.
Open Tech’s site is hosted on a domain belonging to Tokelau, a South Pacific island territory of New Zealand that has in the past been widely used by cybercriminals and scammers. Last year, McAfee Inc. said that more than 10% of all sites with Tokelau’s .tk top-level domain were potentially dangerous to visitors, serving up malware or phishing attacks, or the source of spam.
“Tokelau gives out domains for free,” the security vendor said in its March 2007 report. “Scammers, particularly those employing phishing, exploit or spam tactics, are subject to frequent blacklisting and so they must register and discard many domains very quickly. Registration costs, minimal for one or two domains, become significant when the number of registered sites becomes large.”
In its most recent report (download PDF), however, McAfee said that only 1.4% of the sites with the .tk top-level domain were risky to visit, an improvement that put it No. 28 on the list of dangerous domains compared to its No. 1 ranking in 2007.