Brief Background

On February 12, 2009, with permission of the Court via its Order dated February 6, 2009, Psystar filed its First Amended Counterclaims for Declaratory Relief. The Court Order required Apple to “answer” within twenty calendar days of Psystar’s filing. As noted in a previous article, I had fully expected Apple to file a Motion to Dismiss, but upon further reading of the Court’s prior Order, I see that the Court denied Apple the right to do so. Is that an appealable matter? I don’t know, but obviously if it is, Apple will wait until the conclusion of the case to do so.

For the reader’s reference, copies of the filings in the case may be accessed here. Further, World of Apple’s catalog of past detailed analysis of this case may be found here.

The reader should not assume that by answering Apple is abandoning the arguments it used in its opposition to Psystar’s Motion for Leave to Amend. That would not necessarily end up as arguing defeated points as the burdens to overcome are different as the case progresses and leaves to amend are liberally granted. The same arguments which could not defeat a Motion to Amend could succeed in a Motion for Summary Judgment, as noted by the Court itself.

Apple responds that it is within its rights to determine whether, how or by whom its software is reproduced and how it is to be licensed, distributed or used. This may ultimately
prove to be true. Apple, however, identifies no reason to bar the claims as a matter of law at the
pleading stage. This order declines to find the claims futile.

Apple must answer within 20 calendar days. No more motion practice shall be allowed on the pleadings without leave of the Court. Both sides should be taking discovery and preparing themselves for trial and/or summary judgment.

The reader should not (in my opinion) confuse the declaration that there was no reason to “bar” the claims as a matter of law to be equivalent to no reason to render summary judgment on the claims as a matter of law. The context of the Court’s statement was Apple’s argument of futility which the Court rejected as a basis to deny leave to amend only. However, once again, I remind the reader that I am not an attorney and any legal opinion would have to be given by a properly licensed professional.

Psystar’s filing, though long, boils down to the follow two elements for which its preceding paragraphs were offered as background proofs. Apple admitted and denied some of the background proofs which I will detail in a follow-up article as they consist primarily of issues of technicality. Apple and Psystar agree on most of the “facts” of the case. What they disagree upon is the application of the law to the facts.

Psystar’s First Claim for Relief (Declaration of Unenforceability for Copyright Misuse (EULA))

74. PSYSTAR is therefore entitled to a declaratory judgment finding APPLE’s copyrights to be unenforceable until that time that APPLE discontinues the use of the EULA in conjunction with the misuse of its copyrights.

Psystar’s Second Claim for Relief (Declaration of Unenforceability for Copyright Misuse (DMCA))

87. PSYSTAR is therefore entitled to a declaratory judgment finding APPLE’s copyrights to be unenforceable until that time that APPLE discontinues the use of the DMCA in conjunction with the misuse of its copyrights.

Apple’s Answers to the above were quite simple and are encapsulated it in its sole Affirmative Defense:

APPLE’S AFFIRMATIVE DEFENSE

(Failure To State A Claim Upon Which Relief Can Be Granted Under F.R.C.P. 12(b)(6))

88. Psystar has failed to state a claim for declaratory relief based on copyright misuse resulting from Apple’s licensing practices.

89. Psystar has failed to state a claim for declaratory relief based on copyright misuse resulting from Apple’s assertion of the Digital Millennium Copyright Act.

Basically, Apple reiterated its prior position so that it reserved the right to argue it again in future filings. I fully expect that much more interesting filings will soon come down the pike, including Motions for Summary Judgment. Both parties will likely wait to have at least a bit of discovery under their belt. Those future filings will likely be heavily redacted, hobbling any attempt at meaningful commentary or analysis.

A copy of Apple’s Answer may be found here.