German Mac clone maker claims immunity from Apple

Computerworld - Taking a page from U.S. Mac clone maker Psystar Corp., a German company is selling Intel-based computers with Mac OS X pre-installed, possibly putting it on collision course with Apple Inc.

HyperMegaNet UG, based in Wolfsburg, sells Intel-powered computers under the PearC brand at prices starting at $643. Like Florida-based Psystar, HyperMegaNet installs a copy of Mac OS X 10.5, a.k.a. Leopard, on the machines it sells.

The lowest-priced PearC Starter system sports a 2.2-GHz Intel Core 2 Duo processor, 2GB of memory, a 250GB hard drive, an optical drive and an Nvidia GeForce 7200GS graphics card with 256MB of video RAM. Other systems, dubbed the PearC Advanced and PearC Professional, are priced at $1,029 and $1,930, respectively.

HyperMegaNet adds Leopard to its computers, even though Apple's end-user licensing agreement (EULA) forbids users from installing the software on non-Apple hardware. The same practice has embroiled Psystar in a seven-month legal battle with Apple, with the latter suing in July 2008 and the former retaliating with an antitrust countersuit in August. That case is currently set to start trial in November.

HyperMegaNet, however, said it believes it is immune from Apple's legal attacks. According to a translation of an FAQ on its site, HyperMegaNet said it's on safe ground. "German legislation is in this case on the side of the final consumer," the company's site said, claiming that under German law, a license agreement is valid only if it was visible, and agreed to by the buyer, prior to purchase. "We are convinced of the fact that our product is legal in Germany."

The company did not address how it would defend itself from Apple in the other countries where it plans to sell its computers. That same FAQ noted that PearCs will be sold in Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, the Netherlands, Poland, Spain, Sweden and the U.K.

Apple could be faced with even more clone makers in the coming months if it loses to Psyster in U.S. court. Last week, as a federal judge ruled that Psystar can continue its countersuit against Apple, he also noted that if Psystar won its misuse-of-copyright claim, others would be free to follow. "If established, misuse would bar enforcement (for the period of misuse) not only as to defendants who are actually party to the challenged license but also as to potential defendants not themselves injured by the misuse who may have similar interests," said the judge.

Psystar and HyperMegaNet share several similarities. Not only are their lowest-priced systems nearly identical -- the only difference is that Psystar's features a larger hard disk drive -- but HyperMegaNet, like its American cousin in its first days of sales, does not accept credit cards or take orders over the phone. For a time last year, Psystar only accepted payments via PayPal, the online payment service popular with online auctions. In its FAQ, HyperMegaNet said it only accepted bank transfers or cash-on-delivery.

HyperMegaNet's appearance may also fuel suspicion that there is a concerted effort by several companies to sell Intel-based computers preloaded with Mac OS X -- a charge that Apple made in documents filed in U.S. federal court. In November 2008, Apple said that "persons other than Psystar are involved in Psystar's unlawful and improper activities described in this amended complaint."

Psystar has denied the allegations.

HyperMegaNet did not respond to a request for comment or answer other questions e-mailed to an address posted on its Web site.

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