The doctrine of copyright misuse is a fairly recent development in copyright law. Since it was first recognized less than 20 years ago, the judicially created doctrine has emerged as a valid defense in at least several circuits, while other courts have been reluctant to accept it. In those courts that have recognized it as a defense, there is a split among the circuits as to when it can be maintained. Some courts require a defendant to show that the plaintiff’s misconduct directly relates to the merits of the controversy involved in the litigation, while other courts have concluded that if the alleged misuse contravenes public policy that copyright law seeks to protect (i.e., “to promote the Progress of Science and useful Arts”), the defense will not be stricken. Beyond the use of the doctrine as a defense, some litigants have also sought to raise copyright misuse as a counterclaim. However, at least two courts have refused to accept this theory, rejecting such an application outright.
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