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‘Fair Use’ Asserted Against Copyright Claim

In this copyright infringement action, an Alexandria U.S. District Court denies plaintiff’s motion to strike most of defendant’s affirmative defenses, including fair use and unclean hands, based on a claim that plaintiff is responsible for initially seeding some of its contents onto BitTorrent and facilitating downloads in order to use users for copyright infringement.

Plaintiff has moved to strike certain portions of defendant’s answer, including his “fair use” affirmative defense. “Fair use” is a statutory defense that allows a person to infringe a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research.

Under the liberal notice pleading standard, however, defendant’s allegations that his use of plaintiff’s works, if any, was non-commercial and that plaintiff routinely shared its files for free certainly provide plaintiff with fair notice as to the substance of his defense. The court will deny the motion to strike this defense.

Plaintiff asserts defendant’s second affirmative defense — copyright misuse — fails because defendant does not and cannot allege that plaintiff engages in any anti-competitive behavior or otherwise seeks to secure an exclusive right or limited monopoly not authorized by the Copyright Office. Because the validity of this defense is an inquiry better suited for resolution following discovery, it is premature at this stage for the court to conclude that the defense is clearly insufficient as a matter of law. Defendant also has given fair notice of the basis of his defense — that is, plaintiff’s use of its copyright to obtain its principal revenue through litigation rather than through its monthly service fee.

The court also declines to strike the third affirmative defense of unclean hands. Plaintiff asserts that an agent of plaintiff is responsible for initially seeding some of plaintiff’s content onto BitTorrent in the first place and for facilitating infringing downloads by BitTorrent users in an attempt to extract exorbitant sums from individuals for alleged copyright infringement.

The court declines to strike defendant’s fourth affirmative defense of abandonment and its fifth affirmative defense of minimal creativity, as well as his “innocent infringer” defense and his failure to mitigate damages defense.

Because defendant does not oppose the court striking his sixth affirmative defense of invalidity of plaintiff’s copyrights, the court will strike the defense without prejudice.

Malibu Media LLC v. Guastafferro (O’Grady) No. 1:14cv1544, July 28, 2015; USDC at Alexandria, Va. VLW 015-3-396, 11 pp.

VLW 015-3-396

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