This is the last of a series of articles on the issues to be heard before the Court later today. The last article ended with the following question: Does Psystar’s Proposed Counterclaims Plead Sufficient Facts to Support a Claim for Copyright Misuse?

I believe that Psystar will not be able to overcome the issues outlined in the first three pieces, and if they do not, the Court will not even get to this question as it requires success in the issues surrounding declaratory copyright misuse counterclaims that are duplicative of claimed affirmative defenses. Now, please note what this means if I am correct. It does not mean that Psystar has lost on their claim of copyright misuse. It will only mean that the Court decided that it should be dealt with in the already-filed affirmative defenses and not as declaratory counterclaims. In fact, even if the Court fully denies Psystar’s Motion to Amend with prejudice, all of the same issues are still alive in their affirmative defenses.

Due to the above, I did not spend too much time on this particular question. However, out of all the points raised by Psystar, it is the only one in which they have a scintilla of a chance to succeed in my opinion. So instead of examining the case law at this time I wanted to re-focus attention on a point that Psystar absolutely requires: the software must be an outright purchase and not a license. To this end, I believe that Psystar pulled a very sneaky move in their filings that although I pointed it out before, bears repeating.

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.

Not only does Psystar’s case rely upon the software being declared an outright sale, it appears that it also relies upon the rejected sub-market theories previously put forth. Just consider this. Should someone be able to take the operating systems of game consoles, build their own consoles, and then sell them? Now I understand this is not an exact analogy as these operating systems are not sold outside of the consoles (to my knowledge, I admit I am not a gamer), but the principle remains the same. Apple could easily stop selling its OS separately making any Psystar “victory” completely hollow. And if Apple could not do that, then neither can gaming console makers. I do not think the Court is going to open Pandora’s box.

Additionally, Psystar once again contradicted itself, and I fervently hope this is noticed by Apple. While Psystar is now avoiding the L-word just as doggedly as Microsoft is avoiding the V-word; they weren’t quite so shy in their proposed amended counterclaim. How so?

On page 8 when describing the history of the clone program, Psystar alleges “that as part of APPLE’s Clone Program, Macintosh ROMs and system software were licensed to other computer hardware manufacturers….” [emphasis added] Oops.

If It Quacks Like a Duck

In preparing for this final segment, I was struck even more fully than before by Psystar’s double-speak. Psystar goes into great detail about the technological measures that Apple has put in place so that its OS cannot be installed on non-Apple-labeled hardware and how they had to develop code to bypass these “checks.” Yet within the same breath, Psystar denies that Apple has implemented technological copyright protective measures. How do they accomplish this shell game? They sanitize their obvious circumvention by calling it “interoperability.” My balogna detector exploded at that point. But adding insult to injury, Psystar itself referred to a UCLA Law Review article “Anti-circumvention Misuse,” and if I remember correctly, actually attached a copy of this article to one of their filings in support of their arguments.

The problem is that in that same article under the subheading of “Technical Measures,” the following process is described:

Copyright holders might prefer a world in which the rights granted under statute or asserted via license became self-enforcing. Something close to this can be achieved through the employment of technological devices accompanying copies of a work as they are distributed. Such devices may take a variety of forms as hardware, software, or some combination of the two.

Moving down a bit further:

Consequently, where technological controls are software based, and software can be scripted to accommodate a variety of user behaviors, technological controls can be scripted to incorporate restrictions that might otherwise be the subject matter of a written license. Lawrence Lessig and Joel Reidenberg have each observed that because of these characteristics, technological control and legal conrol may be substituted in a variety of instances. However, technological control and legal control do differ, notably in the degree of discretion afforded to the user. Because of this, content owners may prefer to instantiate the terms of use as computer code, rather than as contract or copyright law. Where legal regulation constitutes the barrier to use of content, users may breach it at their discretion, avoiding penalty until they are apprehended and legal process is complete. Technological barriers may be less difficult for content owners to police and enforce: Unless users are technologically sophisticated, unauthorized uses are simply impossible.

That certainly sounds suspiciously similar to Apple’s technological measures that Psystar is denying are technological measures. Once again, as in the Open Source Yoga case, Psystar attaches an exhibit that refutes their own points.

Well that’s it for now. I eagerly await the availability of the transcript for the hearing to see if I was in the ballpark or way off base.