Copyright misuse

Competition law
Basic concepts
History of competition law Monopoly Coercive monopoly Natural monopoly Barriers to entry Herfindahl–Hirschman Index Market concentration Market power SSNIP test Relevant market Merger control
Anti-competitive practices
Monopolization Collusion Formation of cartels Price fixing Bid rigging Product bundling and tying Refusal to deal Group boycott Essential facilities Exclusive dealing Dividing territories Conscious parallelism Predatory pricing Misuse of patents and copyrights
Enforcement authorities and organizations
International Competition Network List of competition regulators
This box: view · talk · edit

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."^[1]

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).^[2] 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.^[3]

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.^[4] The United States Court of Appeals for the Fourth Circuit subsequently endorsed the copyright misuse doctrine in Lasercomb Am., Inc. v. Reynolds,^[5] Other appellate decisions in the area include Video Pipeline, Inc. v. Buena Vista Home Entertainment^[6] and Assessment Technologies v. WIREdata.^[7]

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.^[8] Similar principles might condemn a restriction against exercise of fair use or against conduct protected under the First Amendment.

See also

• Copyfraud
• Kai Puolamäki, activist against copyright misuse in Finland

References

1. ^ See Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502 (1917).
2. ^ See, e.g., Lasercomb v. Reynolds, 911 F.2d 970, 978 (4th Cir. 1990) (“The question is . . . whether the copyright is being used in a manner violative of the public policy embodied in the grant of a copyright.”).
3. ^ See generally B.B. Chem. Co. v. Ellis, 315 U.S. 495 (1942).
4. ^ 80 F. Supp. 843 (D. Minn. 1948).
5. ^ Lasercomb, 911 F.2d 970 (4th Cir. 1990). Lasercomb is generally considered the leading case.
6. ^ 342 F.3d 191 (3d Cir. 2003).
7. ^ 350 F.3d 640 (7th Cir. 2003). For a discussion of this case see IT Law Wiki.
8. ^ Lasercomb, 911 F.2d 970 (4th Cir. 1990).