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                                DEFENSES TO COPYRIGHT INFRINGEMENT

I.     Most Common Defenses

        A.     Copyright invalidity is a common defense and can include that the work was not original, 
                lacked copyrightable subject matter or that the P is not the owner of the copyright.

                1.     If the contents of the work are in the public domain, then a claim of copyright is

                2.     It can also include that the copyright was not properly registered and thus the court 
                        lacks jurisdiction to hear the case so the claim is not proper

        B.     Independent creation is a complete defense to copyright infringement although it is 
                sometimes difficult for a D to prove independent creation.

        C.     Admission of copying but…..

                1.     “De minimis” use is a defense that admits copying but claims that the amount taken 
                        is so small that it makes no difference.  It is often coupled with a fair use defense.

                2.     Similar to de minimis is a defense that what was copied was not protectable, such as 
                        copying just the facts from a work and not protected expression.

        D.     Fair use is one of the most commonly raised defenses.

        E.     The other statutory limitations on the rights of the copyright holder also serve as defenses,
                §§ 108-122.  These range from the library exception to limitations on performance and display
                to the satellite television limitations.

II.     Other Defenses

        A.     Preemption has been successfully argued as a defense when a state cause of action has been 
                brought against a D.  The 1976 Act sought to clarify preemption and did so to some extent, but 
                not completely, and cases continue to turn on preemption.

                1.     Section 301 abolishes common law copyright and sets forth the criteria to resolve 
                        preemption issues.  They include:

                        a.     Subject matter that does not come within the subject matter of copyright as specified 
                                by §§ 102-103, including works of authorship that are not fixed.

                        b.     Any cause of action arising from undertakings commenced before 1-1-78, or

                        c.     Activities violating any legal or equitable rights that are not equivalent to any of 
                                the exclusive rights within the scope of § 106 rights.

                2.     For preemption both of these criteria must be met.

                        a.     The right protected by state law must be equivalent to § 106 rights,

                        b.     The work of authorship must come within the subject matter of §§ 102-103 and be fixed.

        B.     The copyright may be expired, or the holder may have forfeited his or her rights in the work; both
                of which are defenses to infringement.

        C.     The statute of limitations may have run (three years for civil infringement and five years for criminal

        D.     The copyright owner may have granted permission to use the work or licensed its use.

        E.     Copyright misuse has begun to be used as a defense since 1990, but the Supreme Court has never
                ruled on the use of misuse as a defense.

                1.     Patent misuse, on the other hand, is a tried and true defense to patent infringement.

                2.     Because of the similarity in patent and copyright and the public policy underlying each 
                        system of protection, some courts have recognized misuse as a defense in copyright cases.

III.     Equitable Defenses

        A.     The typical equitable defenses also apply to copyright infringement.

        B.     Abandonment is a defense since proof of abandonment counters P's claim of ownership.

                1.     As in trademark law, overt acts indicating intent to abandon are required.

                2.     Prior to Berne adherence, an example of intent to abandon copyright was thought to be the 
                        circulation of a large number of copies without a copyright notice.

                3.     Today it would likely take an announcement that the copyright owner is abandoning the 
                        copyright in a particular work.

        C.     Other equitable defenses include acquiescence, unclean hands, estoppel, etc.

IV.     Bad Defenses

        A.     Innocent intent is not a good defense to infringement.  It may, however, bear upon the remedies 
                available against such a D.

                1.     Unconscious plagiarism, i.e., copying from P but later forgetting the source, is innocent, but 
                        it is nonetheless infringement.

                2.     Another example of innocent intent is where D relies on the work of a third party and the third 
                        party copied from P.  Again, D is not relieved of liability.

                3.     D may consciously copy from P's work believing in good faith that this conduct does not constitute 
                        an infringement of copyright.  Such innocence will not preclude a determination of liability.

                4.    Remember that claims of innocent infringement are cut off if the work contains a notice of copyright.
        B.     Claiming that a work is obscene is not a good defense to infringement although it was in earlier times.

        C.     The anti-circumvention measures in § 1201 are not subject to the usual defenses against copyright