InfiniteMac OSx86  


Reply
 
Thread tools Display modes
  #1  
Old 12-09-2008, 08:40 PM
nfoav8or's Avatar
nfoav8or nfoav8or is offline
 
Join Date: Jan 2008
Location: WA, USA
Posts: 933
Pystar Moves to Allow Filing of Its First Amended Counterclaim

World of Apple:
"On December 9, 2008, Psystar requested that the Court allow entry of its First Amended Counterclaim. A hearing on this Motion is set for January 15, 2009. Attached as exhibits are its proposed First Amended Counterclaim as well as an annotated version of its prior Counterclaim so that the changes can be easily reviewed. A proposed Order and a Law Review article is attached as well.

The pertinent filings can be viewed here:

Psystar’s Notice of and Motion for Leave to Amend

Psystar’s First Amended Counterclaim for Declaratory Relief as to the Unenforceability of Copyrights and Statutory Unfair Competition

Annotations from Prior Counterclaim

Psystar’s Proposed Order

Law Review Article (on the DMCA and the theory of “paracopyright”)

Until later when I can review these in more detail, in brief, it appears that Psystar has dropped nearly every line of offense initially asserted noting (page 5 of Motion for Leave) that it reserves the right to pursue those issues on appeal. The crux of their new filing is stated by Psystar as follows:

For the purpose of the present motion, PsyStar [sic] focuses its amendments to a number of claims asserted in PsyStar’s [sic] initial counterclaim but that were overlooked during the Rule 12(b)(6) briefing and, ultimately, the Court’s aforementioned Order. Specifically, PsyStar [sic] pleads its case with respect to seeking a declaratory judgment as to the unenforceability of any and all asserted copyrights by Apple.

Psystar specifically targets the EULA and the newly asserted DMCA count added by Apple. This is coming at the case from an entirely different angle, departing from Psystar’s previous antitrust foundations, to relying upon “the brazen misuse of Apple’s copyrights.” (Page 6 of its Motion for Leave)

Footnote number 1 on Page 9 of Psystar’s Motion for Leave is also very telling:

PsyStar [sic] does not re-plead its Sherman and Clayton Act antitrust claims (and related state claims) in the context of the present motion and amended counterclaim. PysStar [sic] does, however, reserve the right to move the court for leave to amend and reintroduce those antitrust claims subject to proof that Apple used its copyright to gain monopoly power beyond the statutory right copyright granted by Congress. In that context, while PsyStar has eliminated much of the previously plead [sic] subject matter as it pertain to market definition from its initial Answer and Counterclaim, the present amendments are made solely for the simplification of the pleadings. The present amnedments should not be construed as PsyStar [sic] discounting the merits of the previously plead [sic] allegations.

In short, Psystar appears to be taking a roundabout way to the same goal. It seems as if it has interpreted the Court’s prior Order in a way that implies that Psystar went from Point A to Point C, and this new filing is intended to provide Point B."[/color]

The article goes on to give World of Apple's thoughts on this:

"My initial lay reaction: Nonsense. I, like Psystar, reserve the right to amend my thoughts as I look at the new material further. Further, the Motion to Leave is sloppily written as noted in the brief excerpts above. Psystar’s own attorneys’ misspelled their name ('PsyStar' versus 'Psystar') and made basic grammar mistakes, i.e. 'plead' versus 'pled.' In my opinion, this was not written by the same careful lawyers that had authored earlier motions; though I could be wrong since Psystar’s attorneys did previously misspell 'Mac.'

I will write more after I have had sufficient time to properly digest the new information.

I remind the reader I am not an attorney, and if any reader seeks a legal opinion, they must seek the counsel of a competent and licensed attorney."

The earlier publication of this article was revised to the present form after "minor grammar/spelling corrections [were] made within minutes after initial publication as well as adding missed links and additional commentary on the proof-reading errors found within the document" so all stands corrected.

Community thoughts on this turn of attack?



💡 Deploy cloud instances seamlessly on DigitalOcean. Free credits ($100) for InfMac readers.



Last edited by nfoav8or; 12-11-2008 at 02:47 AM.
Reply With Quote