Psystar takes a round off Apple in Mac clone court case

Stephen Withers
Tuesday, 10 February 2009 02:07

Opinion and Analysis

The latest hearing considered an altered counterclaim asserting that Apple was misusing copyright and was in breach of unfair competition law.

Apple argued that copyright misuse could not be asserted as a counterclaim, that Psystar's claim of copyright misuse was inadequate, and that unfair competition claims cannot be based on copyright misuse.

Alsup rejected the idea that misuse may never be asserted as a counterclaim, noting that Apple has asserted copyright claims against Psystar, and that Psystar may have a legitimate interest in establishing misuse "for example, to clarify the risks it confronts by marketing the products at issue in this case or others it may wish to develop."

The judge also observed that if misuse was established, Apple would be barred from enforcing its copyright for the period of misuse. This would not only apply to Psystar, but also to "potential defendants... who may have similar interests."

Some observers have suggested that was a reference to the John Does listed in Apple's complaint, but it could alternatively mean other companies not involved in the current case that offer or are considering offering similar products.

While Alsup granted Psystar leave to amend regarding its copyright misuse counterclaims, he threw out the amendments concerning unfair competition, describing them as "futile" because the company had failed to establish that Apple is a monopolist.

The judge gave Psystar seven days to file its amended counterclaims, and Apple 20 days to answer.

The timetable proposed by the parties shows the discovery phase continuing until late June, expert disclosures until the end of July, and the jury trial starting on November 9.