Psystar's revised counterclaim feels weaker than original

Psystar, the Mac clone maker, has filed a revised countersuit against Apple, though this time it reads more like a defense instead of an allegation.

A few weeks ago, a federal judge tossed the original counterclaim back at Psystar and gave the company 20 days to file an amended complaint that offered a stronger argument. I'm no lawyer but this new argument feels much weaker than the original. I can't imagine that any judge is going to give Psystar its day in court for this one.

Basically, the company has taken out the Sherman Act and Clayton Act antitrust claims. Instead, it feels to me like Psystar is going out of its way to argue why Apple should allow a third-party, like itself, to install the Mac operating system on its own hardware. But the way it's written feels like Psystar is trying to embed a defense into its allegation. You did something wrong and now you want to spin it to make it look like the other party is to blame? That's like the husband who apologizes to his wife by saying, "I'm sorry that you that take everything so literally and misunderstood when I called your mother a fat loudmouth." It ain't gonna fly.

The complaint reads, in part:

PSYSTAR alleges that by virtue of APPLE’s leveraging of copyrights in the context of APPLE’s EULA, spurious litigation via the DMCA, and various other anti- and unfair competitive conduct, there is no viable alternative to the purchase and use of Apple-Labeled Computer Hardware Systems for users who wish to use the Mac OS, for a prospective buyer of the Mac OS, or for a user of an older version of the Mac OS. Without an operating system, a computer hardware system can perform virtually no useful tasks thus making the installation of the Mac OS a necessity. The Mac OS—at least according to APPLE—can only be installed on Apple-Labeled-Computer Hardware Systems, a restriction that APPLE enforces through the aforementioned misuse of its copyrights. Mac OS users are—through APPLE’s copyright misuse—thereby locked in to a component not otherwise covered by any APPLE copyright—an Apple-Labeled Computer Hardware System.

Adrian Kingsley-Hughes, in his own blog post, says the counterclaim rests on two pillars: 1) That Apple’s Mac OS EULA abuses copyright law (misuse doctrine) and is being used to block competition and 2) that Apple is using the Digital Millennium Copyright Act (DMCA) as a form of paracopyright, going beyond the protection offered by copyright. (Thanks to Adrian for the links to the original complaint.)

Documents: Motion (PDF) | Amended counterclaim (PDF)

Previous coverage:

• Does Psystar have a legit argument in Apple countersuit?
• Apple strikes back against Psystar, asks for counterclaim to be dismissed
• Apple, Psystar agree to resolution talks
• Psystar countersues Apple, alleges anticompetitive business practices
• Apple vs. Psystar complaint excerpts: ‘Invaluable good is being eroded’

I suspect the judge won't throw this latest counterclaim back at Psystar. Instead, he'll likely throw it out of court.

Your thoughts?