Copyright misuse
Encyclopedia
Copyright misuse is an equitable defense
against copyright
infringement
in the United States
. Under this defense, a copyright infringer may avoid infringement liability if the copyright holder has engaged in abusive or improper conduct in exploiting or enforcing the copyright. Copyright misuse is comparable to, and draws from precedents under, the older doctrine of patent misuse
, which dates back to the early years of the 20th century and derives from the more general equity doctrine of "unclean hands."
The doctrine forbids the copyright owner from attempting to extend the effect or operation of copyright beyond the scope of the statutory right (for example, by engaging in restrictive licensing
practices that are contrary to public policy, particularly the public policy of copyright law). Courts do not permit a copyright owner that has engaged in misuse to enforce its copyright -- whether by securing an injunction
against infringers or collecting damages for infringement, until the misuse has been "purged" -- that is, the improper practice has been abandoned and its effects have fully dissipated.
Copyright misuse is not a statutory defense set forth in the federal Copyright Act
but is instead founded in federal case law
derived from the patent misuse doctrine. One of the earliest copyright misuse precedents is a case in the Minnesota Federal District Court, M. Witmark & Sons v. Jensen. The United States Court of Appeals for the Fourth Circuit
subsequently endorsed the copyright misuse doctrine in Lasercomb Am., Inc. v. Reynolds, Other appellate decisions in the area include Video Pipeline, Inc. v. Buena Vista Home Entertainment and Assessment Technologies v. WIREdata.
The doctrine of copyright misuse derives ultimately from the longstanding equitable doctrine of "unclean hands
", which bars a party from obtaining equitable relief (such as an injunction) against another when the party has acted improperly (though not necessarily illegally). Improper behavior that may lead to a finding of copyright misuse includes (but is not limited to) anti-competitive activity
. Restraints that hinder the promotion of the progress of human knowledge may be held copyright misuse, as in the Lasercomb case, which involved a restriction against development of improved computer code that might compete against the licensed code. Similar principles might condemn a restriction against exercise of fair use or against conduct protected under the First Amendment.
Affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
against copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. Under this defense, a copyright infringer may avoid infringement liability if the copyright holder has engaged in abusive or improper conduct in exploiting or enforcing the copyright. Copyright misuse is comparable to, and draws from precedents under, the older doctrine of patent misuse
Patent misuse
In United States patent law, patent misuse is an affirmative defense used in patent litigation when a defendant has been accused to have infringed a patent. It has also been used to mitigate damages following a finding of infringement or justify a failure to pay contracted-for royalties...
, which dates back to the early years of the 20th century and derives from the more general equity doctrine of "unclean hands."
The doctrine forbids the copyright owner from attempting to extend the effect or operation of copyright beyond the scope of the statutory right (for example, by engaging in restrictive licensing
License
The verb license or grant licence means to give permission. The noun license or licence refers to that permission as well as to the document recording that permission.A license may be granted by a party to another party as an element of an agreement...
practices that are contrary to public policy, particularly the public policy of copyright law). Courts do not permit a copyright owner that has engaged in misuse to enforce its copyright -- whether by securing an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
against infringers or collecting damages for infringement, until the misuse has been "purged" -- that is, the improper practice has been abandoned and its effects have fully dissipated.
Copyright misuse is not a statutory defense set forth in the federal Copyright Act
Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
but is instead founded in federal case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
derived from the patent misuse doctrine. One of the earliest copyright misuse precedents is a case in the Minnesota Federal District Court, M. Witmark & Sons v. Jensen. The United States Court of Appeals for the Fourth Circuit
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
subsequently endorsed the copyright misuse doctrine in Lasercomb Am., Inc. v. Reynolds, Other appellate decisions in the area include Video Pipeline, Inc. v. Buena Vista Home Entertainment and Assessment Technologies v. WIREdata.
The doctrine of copyright misuse derives ultimately from the longstanding equitable doctrine of "unclean hands
Unclean hands
Unclean hands, sometimes called the clean hands doctrine or the dirty hands doctrine, is an equitable defense in which the defendant argues that the plaintiff is not entitled to obtain an equitable remedy on account of the fact that the plaintiff is acting unethically or has acted in bad faith with...
", which bars a party from obtaining equitable relief (such as an injunction) against another when the party has acted improperly (though not necessarily illegally). Improper behavior that may lead to a finding of copyright misuse includes (but is not limited to) anti-competitive activity
Antitrust
The United States antitrust law is a body of laws that prohibits anti-competitive behavior and unfair business practices. Antitrust laws are intended to encourage competition in the marketplace. These competition laws make illegal certain practices deemed to hurt businesses or consumers or both,...
. Restraints that hinder the promotion of the progress of human knowledge may be held copyright misuse, as in the Lasercomb case, which involved a restriction against development of improved computer code that might compete against the licensed code. Similar principles might condemn a restriction against exercise of fair use or against conduct protected under the First Amendment.