17.24 Copyright-Affirmative Defense-Copyright Misuse is an affirmative defense to a copyright infringement claim. It is a legal argument that an alleged infringed can use to defeat a copyright owner’s claim of infringement. It is based on the idea that the copyright owner has misused their copyright rights in such a way that it has caused harm to the alleged infringed, essentially “unbalancing the scales” and making the allegeinfringeder’s infringement excusable. Types of 17.24 Copyright-Affirmative Defense-Copyright Misuse include overreaching, monopolization, anticompetitive behavior, and misappropriation.
17.24 Copyright-Affirmative Defense-Copyright Misuse
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Sample Jury Instructions from the 9th Circuit Federal Court of Appeals. http://www3.ce9.uscourts.gov/jury-instructions/
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FAQ
For ?willful? infringement, a court may award up to $150,000 per work infringed. A court can also assess costs and attorneys' fees (Title 17, United States Code, Sections 504, 505).
The three basic elements of copyright: originality, creativity, and fixation. There are three basic elements that a work must possess in order to be protected by copyright in the US: Originality: To get a copyright, a work must be the original work of the author.
Innocent infringement is a potential defense where the infringer did not have notice of the copyright. The innocent infringer defense may be used when the defendant consciously and intentionally copies from the plaintiff's work, believing in good faith that his conduct does not constitute an infringement of copyright.
Innocence (proving there was no reason to believe the work was copyrighted) The use is with a license agreement in place (this can shift liability to the licensor) Abandonment (a claim that the owner failed to enforce it's rights, thereby abandoning the right) Misuse of copyright by the copyright owner.
The misuse doctrine provides that the copyright holder engaged in abusive or improper conduct in exploiting or enforcing the copyright will be precluded from enforcing his rights against the infringer.
The elements in this instruction are explained in Instructions 17.6 (Copyright Infringement?Ownership of Valid Copyright?Definition), 17.14 (Copyright Infringement?Originality), and 17.17 (Copying?Access and Substantial Similarity). Copying and improper appropriation are issues of fact for the jury.
Under those guidelines, a prose work may be reproduced in its entirety if it is less than 2500 words in length.
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The Ninth Circuit explicitly adopted copyright misuse as a defense to copyright infringement in Practice Management Information Corp. v. Implied license is an affirmative defense to copyright infringement.Copyright misuse is a tough defense to win on. Showing a violation of the antitrust laws will never be an easy task against any company. Even if a plaintiff successfully establishes a prima facie case of copyright infringement, there are still a number of defenses available to defeat the claim. Although courts agree that the first sale principle applies to criminal prosecutions, they do not agree on the burden of proof. Fair use is only relevant once the plaintiff has made a prima facie showing of copyright infringement.