Lava Records LLC v. Amurao, 2009 WL 3806366 (2d Cir. 2009)

The Defendant-Counterclaimant appealed a judgment from the Southern District of New York that denied him attorneys’ fees and rejected his counterclaim for copyright misuse. The Appellant argued that copyright misuse was not only an affirmative defense to a claim of copyright infringement, but a cause of action in and of itself.  Copyright misuse, as many are you are familiar, is most often viewed as a defense to a hodgepodge of situations where a copyright owner tries to leverage their copyright beyond the scope intended in the Act, such as through anti-competitive behavior or overbroad infringement claims.

The Second Circuit rejected the argument that it should create a cause of action for copyright misuse:

We also decline to create an independent cause of action for “copyright misuse,” as Amurao urges us to do. Amurao, who has cited no case in which “copyright misuse” was allowed as an independent cause of action for damages rather than as a defense to an infringement claim, has not made a persuasive case for the creation of such a cause of action here.