updated 07:30 pm EST, Wed December 17, 2008
Psystar DMCA defense
Psystar has submitted a response to Apple's recently expanded list of claims. After a successful filing to have the court reject the clone-maker's initial counterclaims of monopolistic business practices, Apple added several DMCA-violation allegations to the suit. The basic defense against the DMCA accusations argues that the technological copyright-protection measures employed in Mac OS X are being used to monopolize the manufacture of Mac OS compatible hardware systems.
The lawyers contend that "Apple misuses its copyrights in the Mac OS to force purchases of Apple-Labeled computer hardware systems for use in conjunction with the Mac OS." Psystar further accuses the company of using the EULA to reach beyond the rights granted by the Copyright Act and into the realm of anticompetitive business practices, violating the fair use and first sale doctrines.
The DMCA code prohibits any distribution or manufacture of technology that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title."
The defense filing outlines the use of kernel panic and infinite loop codes in Mac OS X that are designed to disrupt operation on non-Apple hardware. Psystar claims that its solutions to the interoperability issues do not constitute a circumvention technology whose primary purpose is to bypass copyright protection.
The company also argues that the kernel codes used by Apple should not be considered measures that "effectively control" access to a copyrighted work. To find the clone-maker in violation of the DMCA, the court would have to agree with the plaintiff that the protection methods do serve as an effective control.
Apple's lawyers recently sent a cease and desist order to a bluwiki site that contained posts related to the DRM protection used by the iTunesDB file that controls the playable media on an iPod. The site complied with the order, although organizations such as the Electronic Frontier Foundation argued that silencing the discussions violated the first amendment.
Despite the rejection of initial antitrust counterclaims, Psystar last week submitted a revised filing that focused on copyright violations and the concept of a "misuse doctrine." The courts had pushed to have the case moved to Alternative Dispute Resolution (ADR), although both the defendant and plaintiff opposed the change and requested the authorization of a tentative schedule that would lead to a formal trial in November of next year.