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Latest twist in Apple vs. Psystar

Mac clone maker Psystar has modified its counterclaim against Apple. Gone are the Clayton Act and Sherman Act antitrust claims, and in are sections that refute claims of violating the DMCA.

Mac clone maker Psystar has modified its counterclaim against Apple. Gone are the Clayton Act and Sherman Act antitrust claims, and in are sections that refute claims of violating the DMCA.

Psystar's latest 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

Documents: Motion (PDF, 57KB) | Amended counterclaim (PDF, 85KB)

What's interesting in the amended counterclaim is Psystar's allegations that rather than Mac OS X being incompatible with regular PC, Apple deliberately cripple the OS so it will only run on Apple-branded hardware:

36.  On information and belief, PSYSTAR alleges that APPLE intentionally embeds code in the Mac OS that causes the Mac OS to malfunction on any computer hardware system that is not an Apple-Labeled Computer Hardware System.  Upon recognizing that a computer hardware system is not an Apple-Labeled Computer Hardware System, the Mac OS will not operate properly, if at all, and will go into what is colloquially known as ‘kernel panic.’   37.  In kernel panic, the operating system believes that it has detected an internal and fatal error from which the operating system cannot safely recover.  As a result, the operating system discontinues operation.  As noted above, without a functioning operating system, functionality of the corresponding computer is reduced to near zero.

I'm not sure if I buy this argument, because the same could be said of any piece of software that needs a key or dongle to work - that limitation is itself deliberate and there to control how that software is used. However, Psystar claims that relying on kernel panics isn't really copy-protection in the eyes of the DMCA. Again, this seems like a weak argument because I'm pretty sure that you could make a compelling DMCA case based on circumventing something as simple as ROT13.

Thoughts?

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