Copyright misuse

by Allen M Lee29. September 2010 05:26

In drafting license agreements, licensors sometimes seek to prevent their licensees from engaging in certain competitive behavior such as creating works which compete with the copyrighted work, or from using other competitors’ works.

Courts have held that such restrictive licensing terms can constitute “copyright misuse.”  The doctrine of misuse “prevents copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly.”  Assessment Technologies of WI, LLC v. Wiredata, 350 F.3d 640, 647 (7th Cir. 2003).  While this doctrine has been applied to practices seen as violating the antitrust laws, such as certain tying arrangements, “[t]he question is not whether the copyright is being used in a manner violative of antitrust law (such as whether the licensing agreement is “reasonable”), but whether the copyright is being used in a manner violative of the public policy embodied in the grant of a copyright.”  Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 978 (4th Cir. 1990). In other words, copyright misuse “forbids the use of the copyright to secure an exclusive right or limited monopoly not granted by the Copyright Office.”  Id. at 977-79; accord Practice Management Info. v. Am. Med. Ass’n, 133 F.3d 1140 (9th Cir. 1997).

As such, licensees should be wary whenever their license agreements (i) attempt to control competition outside the scope of their copyright, and (ii) uses copyright to achieve that result.  Copyright misuse does not invalidate the copyright, but merely precludes its enforcement during the period of the misuse.  This defense is normally raised as a defense to a copyright infringement claim and can be asserted by any defendant, even if the defendant was not a party to the original “overreaching” contract. 

 Examples of copyright misuse:

         Requiring licensees and their employees to agree not to create their own works which compete with the copyrighted work.  Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990).

         Requiring licensees to use the copyrighted work to the exclusion of other competitors’ works. Practice Management Info. v. Am. Med. Ass’n, 133 F.3d 1140 (9th Cir. 1997).

         Prohibiting the use of copyrighted software on any other equipment but the licensor’s, when that restriction effectively prevents the development of new works.  DSC Communications Corp. v. DGI Technologies, Inc., 81 F.3d 597 (5th Cir. 1996).

          Threatening litigation in an effort to extract a licensing fee or other profit when there is no reasonable basis for determining that the copyright proprietor’s copyright has been infringed.

         Requiring licensees to purchase the copyrighted work in conjunction with other products.

 

Allen M. Lee  Mr. Lee’s practice focuses on business, corporate and intellectual property matters, including the creation, protection and exploitation of intellectual property assets.  For more information contact: Allen M. Lee, a Professional Law Corporation, Tel: (408) 249-2735, Email: info@allenmlee.com, Internet: www.allenmlee.com.

 

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<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fats Loss system created by famend health and vitamin professional John Barban only for women. Barban has studied the physical and psychological differences between men and women and has discovered gender-particular train and nutritional strategies that lead to exceptional results for girls. In addition, the whole system will not be a one fits all program however as a substitute is custom-made to each particular person participant.

Venus factor
Venus factorUnited States
8/2/2014 2:46:48 PM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fat Loss system created by famend health and vitamin professional John Barban just for women. Barban has studied the physical and psychological variations between men and women and has found gender-particular exercise and nutritional methods that lead to distinctive outcomes for women. In addition, the entire system isn't a one suits all program however as a substitute is customized to each particular person participant.

Venus factor
Venus factorUnited States
8/2/2014 3:14:59 PM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fats Loss system created by renowned health and diet knowledgeable John Barban just for girls. Barban has studied the bodily and psychological differences between women and men and has discovered gender-specific exercise and dietary methods that result in distinctive outcomes for women. As well as, the whole system will not be a one suits all program however as a substitute is customized to each individual participant.

Venus factor
Venus factorUnited States
8/2/2014 4:18:03 PM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fat Loss system created by famend health and diet skilled John Barban just for ladies. Barban has studied the physical and psychological differences between women and men and has found gender-particular train and nutritional methods that lead to distinctive outcomes for girls. In addition, the entire system is just not a one fits all program but as an alternative is customized to every individual participant.

Venus factor
Venus factorUnited States
8/2/2014 7:05:37 PM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fats Loss system created by famend health and vitamin skilled John Barban only for girls. Barban has studied the bodily and psychological variations between men and women and has found gender-particular exercise and nutritional strategies that lead to distinctive outcomes for ladies. As well as, the whole system will not be a one suits all program however as a substitute is personalized to each individual participant.

Venus factor
Venus factorUnited States
8/2/2014 7:56:24 PM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fats Loss system created by renowned fitness and vitamin knowledgeable John Barban only for ladies. Barban has studied the bodily and psychological variations between women and men and has found gender-specific exercise and dietary methods that result in exceptional outcomes for ladies. In addition, the entire system just isn't a one suits all program however as an alternative is customized to each particular person participant.

Venus factor
Venus factorUnited States
8/2/2014 8:00:10 PM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fats Loss system created by renowned fitness and nutrition expert John Barban only for ladies. Barban has studied the physical and psychological variations between men and women and has found gender-specific train and nutritional methods that result in exceptional outcomes for girls. In addition, the whole system just isn't a one suits all program however as a substitute is customized to every individual participant.

Venus factor
Venus factorUnited States
8/2/2014 8:51:11 PM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fat Loss system created by famend fitness and diet knowledgeable John Barban only for ladies. Barban has studied the bodily and psychological variations between women and men and has found gender-specific exercise and nutritional methods that lead to distinctive outcomes for ladies. As well as, the whole system shouldn't be a one suits all program but as an alternative is personalized to each particular person participant.

Venus factor
Venus factorUnited States
8/2/2014 10:13:17 PM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fats Loss system created by renowned fitness and vitamin skilled John Barban just for ladies. Barban has studied the bodily and psychological variations between women and men and has discovered gender-particular train and dietary strategies that lead to exceptional results for ladies. As well as, the entire system shouldn't be a one suits all program however instead is personalized to each individual participant.

Venus factor
Venus factorUnited States
8/2/2014 10:41:59 PM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fat Loss system created by renowned health and diet knowledgeable John Barban only for ladies. Barban has studied the bodily and psychological variations between men and women and has found gender-particular train and dietary methods that result in exceptional outcomes for women. As well as, the whole system just isn't a one matches all program however instead is personalized to each individual participant.

Venus factor
Venus factorUnited States
8/2/2014 11:56:07 PM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fat Loss system created by famend health and vitamin professional John Barban just for ladies. Barban has studied the bodily and psychological differences between men and women and has discovered gender-specific train and nutritional strategies that result in distinctive outcomes for girls. In addition, the entire system is just not a one suits all program however as an alternative is personalized to every particular person participant.

Venus factor
Venus factorUnited States
8/3/2014 1:13:11 AM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fats Loss system created by renowned fitness and diet knowledgeable John Barban just for ladies. Barban has studied the bodily and psychological differences between women and men and has found gender-particular exercise and nutritional methods that result in exceptional outcomes for ladies. As well as, the entire system just isn't a one matches all program however instead is personalized to every particular person participant.

Venus factor
Venus factorUnited States
8/3/2014 2:48:02 AM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fat Loss system created by renowned fitness and vitamin skilled John Barban only for ladies. Barban has studied the physical and psychological differences between men and women and has found gender-particular exercise and dietary methods that result in exceptional results for ladies. In addition, the whole system isn't a one matches all program but as an alternative is personalized to each individual participant.

Venus factor
Venus factorUnited States
8/3/2014 2:52:29 AM #

<a href="www.youtube.com/watch?v=zEwWhqddmoM">The Venus Factor</a> program is the Fat Loss system created by famend health and diet expert John Barban just for women. Barban has studied the physical and psychological differences between men and women and has discovered gender-specific train and dietary strategies that lead to distinctive outcomes for women. As well as, the entire system just isn't a one fits all program however instead is custom-made to every individual participant.

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