Edible Apple

Last week, a federal judge ruled that Psystar would be given permission to amend its counterclaims against Apple to include allegations of copyright misuse.

If you recall, Apple initially sued Psystar for illegally selling copies of Leopard installed on non-Apple hardware. In response, Psystar initiated a counterclaim where it accused Apple of having a monopoly in the OS X market and for violating anti-trust laws.  The court threw out Psystar’s counterclaim, and Psystar quickly scrambled to amend its counterclaims to allege misuse of copyright by Apple – specifically that it was violating the Digital Millennium Copyright Act.  Apple then responded and argued that copyright misuse is only available as an affirmative defense, and cannot be used as a cause of action in a counterclaim.

Judge Alsup, however, didn’t see things in Apple’s favor, and ruled last week that Psystar would be given permission to ammend its counterclaims.

Apple contends that copyright misuse may only be asserted as a defense, not as a counterclaim.  This order is unconvinced, however, that misuse may never be asserted as a counterclaim for declaratory relief.  PsyStar may well have a legitimate interest in establishing misuse independent of Apple’s claim against it…

The court goes on to acknowledge that other district courts have held that copyright misuse may not be asserted as a counterclaim, but nevertheless states that the facts particular to the current case are distinguishable from the cases relied upon by Apple.

As such, the court issued an order allowing Pystar to amend its counterclaims by February 13, 2009, and Apple then has 20 days to respond.  Lastly, the court noted that no more motions on the pleadings themselves will be allowed and that “both sides should be taking discovery and preparing themselves for trial and/or summary judgment.”