Second Mac clone maker set to sell systems

It's ready to duel with Apple over EULA, as spokesman blasts 'sharks'

Another company is preparing to sell Intel-based computers that can run Apple's Mac OS X. But unlike a US clone maker that's been sued by Apple, Open Tech 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, 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, the US 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 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."

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