Psystar throws the 'kitchen sink' defense at Apple

In its latest defense filed in US District Court in San Francisco last week, Mac clone-maker Psystar buffered its well-reasoned claim that it didn't violate the DMCA as Apple has charged, with no fewer than 41 other claims, some unexplained.

Among the single-sentence defenses that Psystar's attorneys have added to the company's defense are some which appear on the surface impossible to be true simultaneously. One states that Apple can't claim copyright infringement since it failed to file proper claims with the US Patent and Trademark Office. Another states that Apple's copyrights (which apparently include the non-existent ones) may be invalid on the grounds that 1) the covered material isn't original enough to merit copyright; 2) Apple may not have been the original creator of the copyrighted material.

"Psystar denies that Mac OS, Mac OS X, Mac OS X version 10.5, and Mac OS X Server all constitute 'an original work of authorship' 'constituting copyrightable subject matter' as those terms are defined by the United States copyright laws and on that basis denies the allegations," reads the clone-maker's defense filed on December 16. "Psystar is without information or knowledge as to who contributed to the purported works of authorship identified in paragraph 26 of the First Amended Complaint and on that basis denies the any corresponding allegation; Psystar admits that the plaintiff claims to be the owner of the copyright registrations identified in paragraph 26 of the First Amended Complaint. Psystar is without information or knowledge as to whether registrations should have been granted as to the aforementioned works and on that basis denies the remaining allegations in paragraph 26. Psystar denies the allegation that Psystar has infringed any valid copyright held by the plaintiff."

The Paragraph 26 that Psystar refers to comes from Apple's amended complaint of December 2. That paragraph asserts that the Mac OS and its associated software is comprised of "each original works of authorship created by Apple constituting copyrightable subject matter." It goes on to say those copyrights were valid, and predate the time of Psystar's alleged infringement.

Of course, Psystar's defense that it did not infringe Apple's valid copyrights assume that Apple has valid copyrights. Later in last week's filing, Psystar's attorneys attached boilerplate text to what they call the company's Fourteenth Affirmative Defense, which claims that Apple's claims are invalid for "failure to register said copyrights with the Copyright Office."

Elsewhere among the boilerplate defenses added to Psystar's otherwise more well-reasoned assertions, is the claim that Apple lacks standing to be bringing such allegations to court, that Apple's trademarks cannot be directly associated with a good or service, that the trademarks are too vague to warrant protection, that any use by Psystar of Mac OS X constitutes fair use, and that Apple's contract with Mac OS X users is not only illegal but "procedurally and/or substantively unconscionable."

Providing an oasis of reason in a sea of buckshot is Psystar's potentially defensible claim that Mac OS' use of a processor check during startup, resulting in an infinite loop or arcane error message if it's found to be in a non-Macintosh computer without an approved Intel CPU, does not constitute a technological protection measure protected by the Digital Millennium Copyright Act.

"There is no specific reason as to why this infinite loop is present in the code as the kernel is capable of restating/rebooting on a much broader range of hardware. Thus, the restart/reboot infinite loop exists for no functional reason. This loop stops the execution of the Mac OS on any x86 processor not sold by Apple -- that is, an Apple-Labeled computer hardware system."

Psystar argues that this mechanism may be a violation of copyright law in itself, in that it forces customers into certain purchasing patterns down the road, making them use Apple's software and components only in ways that materially benefit Apple. Such a leveraging of copyright, Psystar claims, is a violation of the first sale doctrine -- the notion that once a product is sold completely to a customer, its manufacturer is barred from being able to enforce how that customer uses it.

Of course, if the first sale doctrine were completely enforced in the US, a vast number of end user license agreements -- not just Apple's -- would become immediately null and void. Thus the Psystar case could become a landmark test of the first sale doctrine...that is, if the company's lawyers seemed willing to pursue that course, rather than lob everything they have at the plaintiff to try to get the case over with.