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The Last Refuge of an Infringing Scoundrel: One Final Use for Copyright Misuse
Benjamin W. Cramer
Ph.D. candidate, College of Communications, The Pennsylvania State University.
© 2007 Benjamin W. Cramer
I. Introduction
While copyright infringement lawsuits date nearly as far back as copyright protection itself, the possible courtroom defenses for the accused parties in such cases have been few. The doctrine of “copyright misuse” is emerging as a potentially beneficial tool for infringement defendants. This defense utilizes claims that the plaintiffs in infringement cases may have exercised their copyright protections inappropriately by trying to gain control over intellectual property that is outside of their copyright grant, or by using that grant to restrict competition. The copyright misuse defense is related conceptually to the unclean hands doctrine from the law of equity, while many of its specific procedures are descended from the more established patent misuse doctrine. Provisions from antitrust law have also come into play during exercises of the copyright misuse defense.
This article will discuss the origins and history of the copyright misuse defense, and will consider the potential usefulness of that doctrine in light of modern developments in technology and copyright jurisprudence. In particular, the ultimate focus of this article will be an emerging strategy among the losers in copyright infringement cases, of utilizing the copyright misuse doctrine to ameliorate or reverse the judgments that have already been handed down to them. Part II of this article covers the different meanings of “copyright misuse” and the confusing and inconclusive case law that has developed around the doctrine. Part III explores the recent attempts by the losing parties in infringement cases to utilize the copyright misuse defense as a last resort. Finally, Part IV of this article considers the viability of the doctrine in light of recent case law and legal developments.
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