This does become interesting as I look up the issues being cited. In some cases, the legal precedents are weird, in others, a little more clear cut.
This is what I have found. In a discussion of copyright misuse, the cited case of Lasercomb v Holliday is definitely weird with infringement, fraud, and and breach of contract over a software license. Here, the copyright misuse barred the rightful application of a valid copyright to the plaintiff until they remedied their misuse. Ugh.
The copyright misuse stems more clearly from patent misuse. Here, the principle is easier to understand, though the law, the specifics, and the application are cloudy. A good example of the patent misuse case is Morton v Suppiger.
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Duke Law; Morton v Coppinger
>The doctrine of patent misuse--unenforceability of a patent as a penalty for its improper use--was firmly established in Morton Salt Co. v. G. S. Suppiger Co. Morton Salt, the owner of a patent for a machine used for depositing salt tablets into canned food, sued a competitor for infringement. As a condition for licensing its patent, Morton Salt required licensees to use its unpatented salt tablets. The Supreme Court found this condition to be an attempt "to secure an exclusive right or limited monopoly not granted by the Patent Office and which it is contrary to public policy to grant." The Court thus held that Morton Salt?s patent was unenforceable until Morton Salt corrected its improper licensing practices.
However, the subject of the Duke Law article by Homiller is noting the recession of the courts from patent misuse cases. While Homiller cites one of the first principles of patent misuse is, "Requiring a licensee to purchase unpatented materials from the licensor (tying)," it is not clear about requiring the licensee to purchase patented materials.
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Silverman cites,
>Among other antitrust violations involving patents are attempts to, by agreement, control the resale price of a patented product and the use of a patent on one product as a means to coerce the sale of another product or the sale or license of another patent.
While speculative on my part, I am guessing that was the grounds by which Psystar first sought their counterclaims against Apple. Because monopolistic can be interpreted in different ways, the judge found that Apple had not operated monopolistically in competing in the personal computer market. The judge has allowed Psystar to restate their countersuit and I believe they are using the principle I have referred to.
What makes this more interesting is that Psystar has claimed that some of Apple's code placed on their hardware is for the purpose of rendering the Apple OS inoperable if it fails to find the hardware code. (I lost the citation.) I don't think I would want to be a lawyer on that one. I thought that was the strategy that Apple should or could utilize. I think I would have to consult a lawyer to determine if that would invalidate my patent/copyright on the "unclean hands" principle.
This last thought I am going to just wing it. In looking at past cases and principles, Justice Douglas has asserted that patents are a privilege, but a privilege conditioned to public purpose. And, patents trade anti-competitive practices in exchange for a public good. The gist I was getting is that you cannot take advantage of the patent system to extend or expand your exclusivity beyond the actual patent itself.
A Federal Circuit certified a test for misuse in the context of tying, 1) are the items inseparable, 2) determine if the item is a staple and 3) determine whether in fact they are tied together. Again, I can expect this to be equally complicated. The question will become whether Apple has used its copyright/license in a manner that extends that license beyond what the Federal copyright and patent statues allow and whether this constitutes an anti-competitive practice.
Because Apple has copyrighted material and patents it is defending, I am inferring from opinions I have read, that Apple will be in the drivers seat in these cases. Without the countersuit being drafted by Psystar, that would probably mean Apple would win. (Remember, I am NOT a lawyer.) However, if Psystar can demonstrate to the court that Apple had extended its copyright beyond the scope of it grant, namely to tie it to its hardware, that can constitute copyright misuse. I can imagine this becomes sticky as they will attempt to show that the hardware is generic and therefore the bars to the use of OS X are designed to be anti-competitive. That appears to be the case. The Hackintosh (and the iPhone hackers) have been able to write software that allow OS X to run on generic hardware. If Psystar can show Apple inserts malware, I should be surprised if Apple should win its suit.
Again, I am not a lawyer. I cannot predict the outcome of this case. I certainly would not predict the demise of Apple computer. I doubt this case will exhaust opportunities Apple may have to remain competitive. It is easy to comprehend the desire of Apple or any manufacturer to resist fixing it operating system into the hardware of the computers as it would greatly increase upgrade difficulties and costs. Not doing so, I predict will open the doors to its competitors. Interestingly, MacRumors is reporting that Apple is going to renovate their retail stores and focus on software and user experience.
mdawson 
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