Psystar Moves to Allow Filing of Its First Amended Counterclaim [Corrected]
- December 9th, 2008 - 5.22 pm UTC
- Apple Legal News, Psystar
- dizzle
On December 9, 2008, Psystar requested that the Court allow entry of its First Amended Counterclaim. A hearing on this Motion is set for January 15, 2009. Attached as exhibits are its proposed First Amended Counterclaim as well as an annotated version of its prior Counterclaim so that the changes can be easily reviewed. A proposed Order and a Law Review article is attached as well.
The pertinent filings can be viewed here:
Psystar’s Notice of and Motion for Leave to Amend
Annotations from Prior Counterclaim
Law Review Article (on the DMCA and the theory of “paracopyright”)
Until later when I can review these in more detail, in brief, it appears that Psystar has dropped nearly every line of offense initially asserted noting (page 5 of Motion for Leave) that it reserves the right to pursue those issues on appeal. The crux of their new filing is stated by Psystar as follows:
For the purpose of the present motion, PsyStar [sic] focuses its amendments to a number of claims asserted in PsyStar’s [sic] initial counterclaim but that were overlooked during the Rule 12(b)(6) briefing and, ultimately, the Court’s aforementioned Order. Specifically, PsyStar [sic] pleads its case with respect to seeking a declaratory judgment as to the unenforceability of any and all asserted copyrights by Apple.
Psystar specifically targets the EULA and the newly asserted DMCA count added by Apple. This is coming at the case from an entirely different angle, departing from Psystar’s previous antitrust foundations, to relying upon “the brazen misuse of Apple’s copyrights.” (Page 6 of its Motion for Leave)
Footnote number 1 on Page 9 of Psystar’s Motion for Leave is also very telling:
PsyStar [sic] does not re-plead its Sherman and Clayton Act antitrust claims (and related state claims) in the context of the present motion and amended counterclaim. PysStar [sic] does, however, reserve the right to move the court for leave to amend and reintroduce those antitrust claims subject to proof that Apple used its copyright to gain monopoly power beyond the statutory right copyright granted by Congress. In that context, while PsyStar has eliminated much of the previously plead [sic] subject matter as it pertain to market definition from its initial Answer and Counterclaim, the present amendments are made solely for the simplification of the pleadings. The present amnedments should not be construed as PsyStar [sic] discounting the merits of the previously plead [sic] allegations.
In short, Psystar appears to be taking a roundabout way to the same goal. It seems as if it has interpreted the Court’s prior Order in a way that implies that Psystar went from Point A to Point C, and this new filing is intended to provide Point B.
My initial lay reaction: Nonsense. I, like Psystar, reserve the right to amend my thoughts as I look at the new material further. Further, the Motion to Leave is sloppily written as noted in the brief excerpts above. Psystar’s own attorneys’ misspelled their name (“PsyStar” versus “Psystar”) and made basic grammar mistakes, i.e. “plead” versus “pled.” In my opinion, this was not written by the same careful lawyers that had authored earlier motions; though I could be wrong since Psystar’s attorneys did previously misspell “Mac.”
I will write more after I have had sufficient time to properly digest the new information.
I remind the reader I am not an attorney, and if any reader seeks a legal opinion, they must seek the counsel of a competent and licensed attorney.
minor grammar/spelling corrections made within minutes after initial publication as well as adding missed links and additional commentary on the proof-reading errors found within the document
Correction 12/10/08: Please see my comment of this same date below.
Comments
SJC 9th December 2008, 17.56 pm
Great work as usual. My initial thoughts:
1) They seem to have taken the EFF’s “free speech” DMCA objections to heart.
2) Does the sloppiness suggest that maybe their expensive lawyers have given up on them?
dizzle 9th December 2008, 18.08 pm
SJC, I have had time to read a little bit more of it and found one huge gaping hole in their argument that I will write on later.
I have an theory for the sloppiness, though it doesn’t excuse it. The big gun attorneys authored the actual First Amended Counterclaim–that is the pleading that counts. Some junior attorneys drafted the Motion for Leave which is more of a procedural document in most cases. However, in this particular matter, there is legal argument beyond the typical recitations of the authority of the Court to allow such filings, so it was not simply a pro forma motion.
I have a source who is close to Psystar (who doesn’t disclose any of their secrets but with whom I fact check to make sure I am being as accurate as possible, even though on anything substantive the answer is “no comment”) and I confirmed that PsyStar is NOT the way to spell their name, at all.
The actual First Amended Counterclaim does not suffer from these basic errors, but it is inconsistent in its format from the Motion. The First Amended Counterclaim identified the parties in short form in all caps as PSYSTAR and APPLE. The Motion for Leave does not. Documents being filed at once should, for sake of professional appearance, be consistent in appearance. This does not mean that their arguments are wrong, but we all know that making such basic errors does impact the overall impression left upon the audience, in this case, the Judge.
And let me say, I found the big gaping hole and these formatting/appearance errors with a ten minute skim of the documents. If I lived with these filings for the past week, there is no way those errors would have made it past me if I were the assistant on this case. But then again, I am a nazi when it comes to those sorts of things.
dizzle 9th December 2008, 18.11 pm
Oh, and I will have more on the DMCA later. I could just use my lunch hour and do a quick read and post some thoughts, but that would not do this justice. I want to sit down with it tonight and give it a thorough read. It may take me several nights to put together my thoughts, but I wanted to get the basic information and copies of the filings into the hands of interested readers as soon as possible.
dizzle 9th December 2008, 18.14 pm
Another point of sloppiness on the part of Psystar’s attorneys. The case caption is incorrect. The caption was amended last week to include the 10 John Doe Defendants and these are not noted on Psystar’s recent filings. Their secretarial staff needs to update their database.
dizzle 9th December 2008, 21.05 pm
Oh my, I found another grammatical/spelling error in the Motion for Leave.
As a further part of that Order, the Court stated that “PsyStar may move for leave to amend” and that “[a]ny such motin should be accompanied by a proposed pleading” explaining why the bases for dismissal of PsyStar’s initial counterclaims had been “overcome by the proposed pleading.”
There are several problems here. First, there is purportedly a direct quote from the Judge which uses the incorrect party name of “PsyStar.” To my recollection, the Order did not misspell the name of the Defendant and thus should not be directly quoted as doing so. Second, the phrase “bases for dismissal” should be “basis for dismissal.” That is a classic example why spell-checker is just one tool in the proof-reader’s arsenal.
dizzle 9th December 2008, 22.25 pm
Well it turns out that I was giving too much benefit of the doubt with regards to the sloppiness noted in the filings. I had guessed that a junior attorney had prepared the Motion for Leave which is why such a glaring error such as misspelling your own client’s name made it through. However, the First Amended Counterclaim, which surely was prepared by a senior attorney, likely Mr. Springer himself, also has Psystar spelled incorrectly and inconsistently.
As to inconsistency, the footer of the Motion for Leave has Psystar spelled correctly, yet the body of the Motion does not. Conversely, the footer of the proposed First Amended Counterclaim has Psystar spelled incorrectly, yet the body of the Counterclaim (with one exception on page 1) has it right.
These were obviously rush jobs. This is not typical of the work product of this firm that I have previously seen.
anonymous 9th December 2008, 23.51 pm
Huh, okay. This is Psystar’s First Amended Counterclaim version 0.6 codename “Silly Typo” Alpha 2 Release Candidate. Please send feedback/bugreports to the senior attorney.
dizzle 10th December 2008, 03.14 am
Umm okay, its no big deal that a high-powered law firm can’t even spell the name of its own client correctly.
Anyways at this point all I can say is holy batcrap Batman, I went through the proposed First Amended Counterclaim and I wouldn’t be surprised if Judge Alsup orders them to try again once they actually proof-read their work. I have went through the entire thing line by line. The argument is interesting in a twilight zone kinda way, but again, it doesn’t take much to survive a Motion to Dismiss. I was shocked when Apple prevailed on the other one.
So when I went through the filing line by line, though I haven’t yet counted, I would bet my biscuits that I found at least FIFTY grammatical/consistency/spelling issues.
Yes, that is a problem. Sloppy writing can often be a the end-product of sloppy thinking. There is one line of argumentation that I found potentially viable. There is another line that was so bad that I had to hold my nose when I read it.
(and I think IMHO the lawyers crossed the line in some of the accusations they made–this case has officially gotten ugly, and that is a shame)
Oh and I have sent the error report to Psystar. Through my contact. If I didn’t think they were thieving punks, I would volunteer to proofread for them.
And I will equally point out all of Apple’s grammatical errors as well. There is no excuse for firms earning the kind of money that these do to put out shoddy work product. One error, okay…. but this goes way beyond this. I would have been read the riot act if this was a case where I worked, and I, as a legal assistant, let this get out the door, in Federal Court no less.
dizzle 10th December 2008, 14.51 pm
Re: Correction 12/10/08
LOL! I was just told this morning that I had misspelled Psystar in the title! Guilty as charged. I often drop the first “s,” and since I know I do that often, I should have been more careful; though I always expect (and excuse as I already said above) one whoops. Everyone makes them. I hate it when I do; so I am suitably chagrined and laughing at myself.
In my defense, I am not their attorneys making hundreds of dollars an hour, and I wrote this piece in fifteen minutes on my lunch break as this is not my full-time job. All that being said, it just goes to show that even a proofreader needs a proofreader. Most items for publication on a news site or to a Court need at least three sets of eyes reviewing them.
But still… LOL!!!!!!!