Apple recently filed a response in opposition to Psystar’s motion to amend its counterclaims, which allege misuse of copyright on the part of Apple. In short, Apple noted that ‘copyright misuse’ is only available as an affirmative defense, and cannot be used as a cause of action in a counterclaim. Apple then goes on to show that even if copyright misuse was allowed as the basis for a counterclaim, Psystar still hadn’t provided a sufficient amount of evidence showing that Apple was misusing its OS X copyright in the first place. Specifically, Apple points to a number of cases where courts have held that there can’t be copyright misuse if competitors are free to write their own competing software.
Not only is there no basis for Psystar’s purported copyright misuse counterclaims, Psystar fails to allege a viable misuse defense in light of its own inconsistent allegations. As acknowledged by this Court and Psystar in its prior briefs, Apple is well within its rights to determine whether, how or by whom its software is reproduced and how it is to be licensed, distributed or used.
In the Ninth Circuit, it is not copyright misuse to limit the uses of licensed software where one’s competitors are free to develop competing software and customers are free to purchase it. Psystar’s pleadings are unambiguous in showing competition among numerous operating systems, as well as among sellers of computer hardware systems. Accordingly, these counterclaims must fail.
Psystar is like a heavyweight boxer who knows he has no chance of winning. It’s hobbled, and is desperately throwing wild haymakers on the off-chance that one of them might actually land. Psystar’s filings are littered with arguments with no legal legs to stand on. It knows it has no viable defense, so instead it resorts to ridiculous theories about Apple having a monopoly in the OS X market, and making counterclaims it’s not legally allowed to make.
Apple lays down some pretty straight forward case law in its response, and the court will likely deny Psystar’s motion.
January 2nd, 2009 at 8:08 pm
1) bundling is the the essence of this case – above & beyond the violation of tve eula or the infringement of the firmware copyright (which is already a matter of settled law 25 years ago when a court shut down a cloner for stealing apple ][ ROM).
osx is /not/ a stand-alone product (even ifit sold in a box at retail).
osx is /always/ just an upgrade to any existing product – the mac computer – not a separate product intself.
apple offers a simple value proposition to customers of it’s computers: new versions of osx (which is created to sell macs) will be made backwards compatible with the mac you already boughg for 5 years or so (depending upon certain practical engineering considerations).
apple chooses to extend the value of older macs (by offering limited forward compatibility) as a matter of choice, a marketing strategy … so that new mac customers will feel comfortable with the net future value (NFV) of their investment. Few (apple) customers want to buy a computer knowing that it is obsolete the day they buy it: a few years of (paid) upgrades satisfy this concern.
the fact that apple fulfills this upgrade without DRM that ties osx directly to the hardware is purely a matter of coincidence.
paystar is merely exploiting a loophole in apple’s divery system (going forward, osx has a digital signature-based system that could be used to complement the Fairplay drm used for itunes media content & iPhone appstore). At that point, any attempt to install an upgrade (of osx) on a PC machine is, in effect, directly stealing the profits from macs that otherwise would be neccesary to run (unupgraded) osx in the first place!
that is the key concept – morally if not legally – at work here: osx is not something separate from the mac: it is part of it, and the existence of discrete upgrades is immaterial to that proposition.
January 2nd, 2009 at 11:50 pm
The smack-down was even worse than that when you examine the pleading in very close detail. Apple did an excellent job but also put the wrong case caption on the pleading.
The first two proposed counterclaims are affirmative defenses recast as counterclaims. Buzztttt. The second two counterclaims are entirely dependent on two things:
1. The first two being valid. Buzzzttt.
2. Ignoring the Court’s prior order. Major FAIL and likely to piss off the Judge.