Every time I write about Apple v. Psystar, I see comments about EULAs, some of which reflect a lack of comprehension of how the courts view them. Sometimes folks ask about a case they've read or heard about, but usually they are not on point. So I was trying to think about how to explain how courts in the US tend to view them, particularly the courts where this litigation will be handled. The law is about reality, and I want you to understand what reality is when it comes to EULAs.
So I was trying to find a case where the facts and legal issues were as similar as possible to the claims and defenses and counterclaims in Apple v. Psystar, and ideally one in the same appellate circuit. I found one, MDY v. Blizzard Entertainment, involving a EULA, claims of copyright infringement and breach of contract, a DMCA violation, and a counterclaim of copyright misuse, which is what Psystar is claiming against Apple. It's a famous case, so I should have thought of this long ago, but here it is now, and I have done it as text for you. Both EULAs prohibit by their terms the conduct complained of. It's from the 9th Circuit, which is the same circuit that the Apple v. Psystar case is in. That means the circuit case law the judge writes about is on point. And there are other similarities, as you'll see.

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