This filing is nearly identical (including grammatical errors) to the proposed First Amended Counterclaims previously filed with the Court and discussed in an earlier article. The exception is that the Court struck down the California Unfair Trade Practices counts so all that remains are two counts involving copyright misuse under the EULA (more accurately, the SLA) and the DMCA.

I note that Psystar is still using the terminology of “subsidiary market” which is a theory that the Court has previously rejected. The statement that literally makes me sick to my stomach remains:

PSYSTAR is informed and believes, and thereon alleges, that there are substantial barriers to entry in the market for operating systems, including the Mac OS market. It is prohibitively difficult, time-consuming, and expensive to create any operating system much less one that would offer substantially identical functionality, security, stability, and other aspects offered by the Mac OS. In general, a new operating system manufacturer faces an almost insurmountable barrier to successful entry to the operating system market. Those barriers would be raised even higher with respect to an operating system that would directly compete with the Mac OS.

Cry me a river, and tell that to the Linux open-source community who not only have created a competitive operating system, they don’t even charge for it.

First, I note that the Court has rejected the idea of a separate “Mac OS market.” Second, allow me to give a non-legalese translation of this statement: we can’t create something as good so Apple should be forced to help us. I find that immoral and against the principles of the American free-market system (in which both of these companies exist). Apple didn’t run off to the courts asking for cellular phone makers to have to help them create a phone; they just did it. From my economic perspective, if this were to be granted, it would be hideously unjust.

As the filing continues, the references to previously-rejected market theories remain. I believe these are subject to easy attack from Apple on a Motion to Dismiss. These references to various markets appear to be yet another attempt to back-door in anti-trust issues under another name. Without these references to various markets, the claims seem to fall flat.

For a complete run-down of my analysis on these various issues, I refer the reader to my collection of articles on this case from its inception, most particularly ones published within the last month.

Mediation is scheduled for February 18, 2009. While Psystar does have this declaratory action in its hip pocket as a negotiating tool, I believe that Apple has already planned on how it will nullify any potential loss and prevent any further upstarts. These plans could include ceasing sale of retail boxed versions of the OS, providing licensed copies at prices that are not subsidized by the profit margin of Apple hardware (which they in fact are), or as 9to5 Mac has noted, a proprietary hybrid ARM chip. My opinion is that Psystar should take whatever go-away money is offered, if any, and run.

If the case does not settle, Apple’s responsive pleading is due in the beginning of March. That pleading can take the form of an Answer or a Motion to Dismiss (or perhaps some other strategy that I have not thought of). It might be to Apple’s tactical advantage to file a Motion to Dismiss prior to mediation so that risk is on the table to convince Psystar that it might be wise to settle.