Lewis R. Clayton and Eric Alan Stone
Copyrights provide a limited monopoly over original works of authorship fixed in a tangible medium of expression. Attempts to extend this monopoly beyond the protection of the Copyright Act through “copyright misuse”—including anti-competitive behavior, restrictive license agreements, and abusive litigation tactics—may render a valid copyright temporarily unenforceable.
Three cases decided this year examine the bounds of copyright misuse, addressing when license restrictions and litigation tactics can constitute misuse. Oracle USA v. Rimini Street, 879 F.3d 948 (9th Cir. 2018); Disney Enters. v. Redbox Automated Retail, No. CV 17-08655 DDP, 2018 WL 1942139 (C.D. Cal. Feb. 20, 2018); Energy Intelligence Grp. v. CHS McPherson Refinery, 300 F. Supp. 3d 1356 (D. Kan. 2018). We report here on the interpretation and application of the copyright misuse doctrine in these cases.
