Here is where the titles of pleadings can become more interesting than the filings themselves. Let me break this down for you (yes, some of this is repeated from prior articles, but I have received a lot of feedback that these simple refreshers with current updates is very helpful for the reader with little to no familiarity with the law).

Brief Procedural Background

On August 28, 2008, Psystar filed Counterclaims which were dismissed without prejudice by the Court on November 18, 2008. Subsequently, on December 2, 2008, Apple’s Amended Complaint was deemed filed giving Psystar another bite at the apple (pun intended) in its second Answer. An analysis of Psystar’s Answer can be found here. Further, on December 8, 2008, Psystar moved for leave to file its First Amended Counterclaim. Due to the holidays, the hearing on this motion has been moved from January 15, 2009 to January 22, 2009. On December 30, 2009, Apple filed its Opposition to Psystar’s Motion which was discussed here previously. Psystar has now filed its Reply to Apple’s Response as of January 7, 2009.

Brief Summary of Apple’s Response

The Court gave Psystar permission to request leave to amend their prior fatally flawed Counterclaim. Psystar was not given permission to completely rewrite their filing which is what they have done. Furthermore, their whole proposed First Amended Counterclaim is dependent upon allegations of copyright misuse which Psystar has already alleged as part of its affirmative defenses. According to Apple, Psystar has simply put a new dress on their old girlfriend and pretended like they have a new date. Making matters worse, according to Apple (and this writer agrees), Psystar is attempting to back-door antitrust issues back into the case through a dog and pony show even though those arguments have already been soundly rejected by the Court.

Further, Apple points to the internally contradictory claims made by Psystar within its filing which do not provide any clarity to the issue but appear to be hurling anything at the wall to see what may stick. Mostly significantly for this article, Apple alleged that Psystar was relying heavily on a single case from an entirely different circuit while Apple cited to multiple cases from the Ninth Circuit (and the Northern District courts), one of which Apple claims is nearly identical in legal points.

Of note, Psystar’s pending Amended Counterclaim differs substantially in nature from its prior—now dismissed—Counterclaim in that it is a request for declaratory relief. Generally speaking (a qualified and licensed attorney would have to give authoritative specifics), in a declaratory action, the facts are not in dispute; but rather the claim is made that at least one of the parties is in doubt as to its rights and duties and is requesting guidance from the Court.

Of note, Apple neglected to properly caption the case with the additional John Doe defendants, and now over a week later, still have made no move to correct that error. I find that incredibly sloppy for attorneys of that caliber and find it difficult to accept that such is tolerated by Apple. I once found one minor typo on one of Apple’s webpages, and it was corrected with hours of my bringing it to their attention. I am highly disappointed that Apple’s attorneys have not corrected this. If I am missing something such as some local rule which allows abbreviated case captions, please let me know. I would love to learn I am wrong on this. You may find a copy of the Local Rules for the Northern District of California here. It appears that pages CIV 17 and following deal with the requirements of information which must be contained on the first page(s) of a filing, and I could find no exception that would apply here.

A copy of Apple’s Response may be found here for reference while reading this article.

Psystar’s Reply


A copy of Psystar’s Reply may be found here for reference while reading this article.

For some reason although this document was already filed under Docket Number 47, it was refiled the next day as a “corrected” filing under Docket Number 48, but it is unclear what precisely was so incorrect as to require refiling while ignoring the other numerous errors. The case caption remains incorrect, but to their credit, Psystar’s attorneys did manage to spell their client’s name correctly the first time. The major corrections appear to be a reformatting of their Table of Authorities. They certainly did not correct their numerous grammatical tense misuses of “plead” instead of “pled” or “pleaded.” I am harping on that error so vociferously since this particular example has plagued their filings for months and has been brought to their attention. The proper tenses of “plead” are neither complicated concepts, nor are these words rare in legal lingo. There is simply no excuse for this repeated error. There were also numerous errors in proper quotation citation formatting though Apple also seemed to suffer from this same malady albeit to a lesser extent.

The substance of Psystar’s argument is that Apple has seriously misconstrued its cited case law and misrepresented precedent as stating that copyright misuse is only appropriate as an affirmative defense rather than as a proper subject for a declaratory action. Psystar further argues that Apple incorrectly represents its position as relying solely on a case that is well out of the jurisdiction of the present action. As its alleged proof, it attaches a 2005 case from the Northern District of California entitled Open Source Yoga Unity v. Choudhury and various other cites which will be the subject of analysis in my next article. (A copy of the Open Source Yogacase may be found here.)

Before anyone gets too excited over the term “open source” in that case title, the Open Source Yoga case has absolutely nothing to do with open source software, and I firmly believe that Psystar’s attorneys attached this case to give the impression that it was in order to bolster their case that Psystar is some kind of modern-day Open Source hero, which is patently false as shown by the reaction of the true Open Source community to Psystar’s prostitution of their work, and the truly laughable fact that Psystar has its own End User Licensing Agreement.

While Psystar mentions the “first sale doctrine,” it is hardly a linchpin of this filing (as other recent articles out there in the Apple web may lead the reader to believe), nor could it be. There will be more on this towards the end of this piece. The battle between the two parties right now is basically over two issues:

1. Can Psystar recycle its already-asserted affirmative defenses of copyright misuse as counterclaims?
2. Is Psystar attempting to back-door previously rejected antitrust issues back into the case?

That is pretty much it.

Warning: Opinion Ahead

I am disappointed with the tone of Psystar’s filing; it reminds me too much of some of the generally unpleasant opposing attorneys that I sometimes have to work with. The following phrases embody my discomfort:

(Page 1) …[Apple's Response] is intentionally crafted to obfuscate the true nature of Psystar’s amended counterclaims….

(Page 1) …Apple’s inequitable and overly litigious conduct.

As a sidenote on this page, Psystar can’t seem to decide if its proposed filing is a complaint or a counterclaim. Sloppy.

(Page 5) Despite this pretense, ….

(Page 6) These unsupported arguments are nothing more than window dressing for Apple’s true concern—the nuclear fallout from a declaratory judgement as to [the] unenforceability of Apple’s copyrights.

As someone in the legal field, it is simply my personal opinion that the statement above is trashy and above the caliber of Mr. Springer. Continuing …

(Page 6) This exhibition of hubris continues in Apple’s unfettered declaration that “Apple is well within its right to determine whether, how or by whom its software is reproduced and how it is to be licensed, distributed or used.

First, Psystar’s attorneys could not even properly cite that statement’s location in Apple’s Response. Second, if anyone has hubris, it is Psystar’s attorneys who make the completely outrageous claim that Apple’s statement is “unfettered” [!] when Apple is directly summarizing and citing to the Court’s previous Order! In my view, this is a back-handed slap to the Judge that he is the one without mooring in reality.

Sneaky, Sneaky Psystar, You Didn’t Get This Past Me, and You Won’t Get it Past the Judge

In addition to my legal background, I have over a decade of experience in high-intensity debate. I am not the best debater out there, but I can take the average comer. One thing my years on the battlefield has taught me is that the innocuous-appearing ellipsis can be the opposition’s equivalent of white-out for the words that they do not want you to see. Here is a classic example. Psystar uses this quote multiple times in its filing:

[Apple will decide] “whether, how or by whom its software is … distributed or used.”

Tisk, tisk. Here is the full quote from Apple without the white-out:

“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.

Apple then proceeds to directly quote the Court’s support for this position. Notice how Psystar conveniently omitted the word “licensed”? I certainly did. That is NOT a good faith quote. Licensure versus ownership is a core issue in this case and other similar cases involving EULAs.

There is more language that I could cite to express my discomfort, but then I would bore you to tears.

I am more than willing to discuss any perceived bias in the comments. Opinion is not always bias, and I have defended Psystar when I felt they were unfairly treated by the Apple web, but in my opinion, Psystar is currently playing a very dangerous shell game with a Federal Court Judge.

Ipse Dixit Doesn’t Cut It

Psystar responded to Apple’s claims that its filing was internally contradictory basically by saying “nuh, uh.” Yes, I am being a bit sarcastic, but they certainly did not, in my reading, really upon anything other than their say-so that a kernel panic which causes the software to malfunction on a non-Apple-labeled computer is NOT an anti-circumvention device. It certainly seems to have circumvented a whole lot of people, including Psystar, who admitted/claimed to have written their own code to get around this roadblock. The OSx86 community has a bit to say about that misappropriation of their work and proper credit, but that has already been addressed ad nauseam.

Misinformation and Putting the Cart Before the Horse

I have attempted to tone down my criticisms of the misreporting that has been ongoing regarding this case throughout the Apple web. However, when a previously (and loudly debunked error) is repeated by a major news source, my blood pressure rises. The culprit this time is once again Computerworld. The article is simply vapid months ago. The claim that Psystar is relying on the first-sale doctrine and that it legally purchased copies of OS X is old news; it was present in its first Answer. There are also inaccuracies that simply show that the tech writer should not be writing legal news:

In papers filed with a San Francisco federal court last week, Psystar Corp. repeated its argument that Apple has abused copyright laws by tying the Mac operating system to Apple hardware. The filing came in response to an Apple motion asking U.S. District Court Judge William Alsup, who tossed out Psystar’s original antitrust allegations against Apple last November, to also throw out the Florida company’s revamped countersuit.

Apple is not asking the Court to throw out Psystar’s “revamped countersuit.” This is basic fact. A Court cannot “throw out” a document that isn’t even officially filed as such (it is currently filed as an exhibit only). The dispute at this time is whether or not Psystar will be allowed to file its “revamped countersuit” in the first place. IF and WHEN that happens, THEN Apple will likely ask the Court to “throw it out.”

The above article goes on to further to discuss a filing that is not yet even a part of the record and completely ignores the issues before the Court right now: should Psystar be allowed to file its First Amended Counterclaim and can it recycle its asserted affirmative defenses as proper bases for a declaratory action. In fact, I don’t think the words “declaratory action” appeared once in that article, and that is one of the most important issues before the Court at this time! And, Computerworld once again repeated the following absolutely false statement:


Apple declined to comment on the case, which is slated to go to trial in April.


Repeat with me: the case is not slated to go to trial in April but in November. This is about the third time that I have corrected this error, and now I just have to wonder what passes for background research for some articles. Yes I know that is harsh, but this is such an easily checked fact that there is little excuse to get it wrong once, but to continue to get it wrong goes beyond the pale of acceptability in my ever-so-humble opinion.

Now, I have a task ahead of me. I have printed out hundreds of pages of case law. I am going to extract out the cases that seem most important to Apple and Psystar and see if I can make any sense out of who is misrepresenting what, if anything. I hope to have that for you tomorrow.