Judge: Psystar can claim Apple 'copyright misuse'

California judge who dismissed Mac clone maker's antitrust suit is letting it amend its counterclaim against Apple, which had sued it for copyright and trademark infringement in July.

A federal judge is letting Mac clone maker Psystar amend its legal defense against Apple.

Psystar was delivered a blow in November, when Judge William Alsup of the U.S. District Court in Northern California dismissed Psystar's antitrust claims against the Cupertino, Calif.-based Mac maker. The antitrust suit was a response to a copyright and trademark infringement suit Apple filed in July against Psystar, whose OpenComputers are designed to run the Mac OS X operating system.

In its amended complaint, Psystar accuses Apple of copyright misuse, as well as unfair competition violations based on its alleged copyright misuse.

Judge Alsup, in citing a previous case--Practice Management Information Corp v. American Medical Association--notes in his order:

Copyright misuse does not invalidate a copyright, but precludes its enforcement during the period of misuse." Practice Management, 121 F.3d at 520 n.9. Moreover, "a defendant in a copyright infringement suit need not prove an antitrust violation to prevail on a copyright misuse defense." Id. at 521.

While Judge Alsup found in Psystar's favor by allowing the company to continue its counterclaim with a misuse-of-copyright argument, he denied its motion to amend its claim that Apple's copyright-oriented conduct threatens or harms competition.

Psystar argues that the alleged misuse is, "at the least, unfair in that Apple has attempted (and continues to attempt) to extend the reach of its copyrights by tying them to computer hardware not otherwise protected by the Copyright Act." (Reply at 12). It fails to explain, however, how this conduct constitutes harm to competition or a violation of the spirit of the antitrust laws.

In the context of single-firm conduct, tying requires monopolization. Psystar has identified none--other than the limited monopolies inherent in the copyrights themselves.

According to a report in Computerworld, a trial for the case is set to begin on November 9.

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