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.