Psystar drops antitrust gripes in fresh counterclaim against Apple

By Aidan Malley

The altered response, which would be filed on January 15th if given permission by a Northern District of California court judge, specifically omits the Clayton Act and Sherman Act antitrust claims of monopolistic abuse of copyright that had triggered Apple's successful motion to dismiss in the fall. Psystar "respectfully disagrees" with the court's interpretation of a monopolistic market but will abide by the earlier ruling for now.

However, the PC builder maintains that copyright is still at the heart of the issue. Psystar insists that Apple's policies regarding Mac OS X are considered abuse under the legally recognized concept of a "misuse doctrine," which prevents copyright from being wielded to block competition outside of any officially sanctioned terms.

As such, proof of a specific antitrust violation isn't necessary, the company argues. Instead, it's allegedly only the spirit of the law reflected in public policies that matters. Apple's end-user license agreement (EULA) is regarded as a threat in that it lets Apple have absolute control over hardware -- a component not covered under the largely software-focused Copyright Act -- and facilitates Apple's ability to abuse copyright law, even if it doesn't violate specific antitrust laws.

According to Psystar, this also extends to the Digital Millennium Copyright Act (DMCA) violations that Apple has added to the expanded lawsuit filed after its motion to dismiss was granted. Where Apple is convinced Psystar is breaking anti-circumvention laws by running Mac OS X on unauthorized hardware, the latter company insists that simply rendering hardware like its Mac clones compatible isn't a violation and that Apple is going beyond the bounds of copyright by suggesting otherwise.

Apple is thought responsible for violating California's Unfair Competition Statute as a result of the argument, which allows claims made under more universal terms.

The amended counterclaim also challenges the notion that the current response of Mac OS X to a non-Apple system doesn't constitute a copy protection system: just triggering an infinite loop or a kernel panic when particular firmware isn't in place doesn't represent a real defense mechanism, Psystar says.

No significant changes have been made to the penalties the company is seeking, which could potentially include a preliminary injunction against Apple's behavior. Even so, Psystar believes that its stripped down version of its lawsuit exists only for the "simplification" of the suit and that it has the right to reintroduce its Clayton and Sherman antitrust accusations should it get more definitive proof that Apple has violated either of those acts.

Original here