Can Psystar Plead Copyright Misuse in Both its Affirmative Defenses and in a Declaratory Action?
Ruling of the Court: The Court ruled that Psystar could plead copyright defense in both a defensive and an offensive posture. Reasoning of the Court: Apple contends that copyright misuse may only be asserted as a defense, not as a counterclaim. This order is unconvinced, however, that misuse may never be asserted as a counterclaim for declaratory relief. PsyStar may well have a legitimate interest in establishing misuse independent of Apple’s claim against it, for example, to clarify the risks it confronts by marketing the products at issue in this case or others it may wish to develop. Moreover, if established, misuse would bar enforcement (for the period of misuse) not only as to defendants who are actually a party to the challenged license but also as to potential defendants not themselves injured by the misuse who may have similar interests. See Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 979 (4th Cir. 1990). The best analogy is to patent misuse. See Lasercomb America, Inc.
