it has been the law at least since 1979, not only in the Second Circuit but throughout the United States, that copyright pooling by competitors raises a copyright misuse issue which is to be resolved by a rule of reason analysis. See, e.g., Broadcast Music, Inc. v. Hearst/ABC Viacom, supra, at 326 (SDNY 1990)(Keenan, J.)Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion to Dismiss Copyright Misuse Affirmative Defense
It is of more than passing interest that, while they devoted a third of their brief to the totally inapposite affirmative defense of the Noerr-Pennington doctrine ...., and most of the rest of the brief to the pleading requirements for antitrust claims which haven’t been interposed in this case, plaintiffs have not devoted a single word of their brief to supporting the reasonableness of their copyright-pooling behavior, which ultimately would be their only possibly meritorious answer to Ms. Lindor’s charges of copyright misuse. I.e., we are still left wondering, although they had another 15 pages or so left to them under the Court’s page-limit requirements, what lawful, “procompetitive” explanation they might possibly have offered for their admitted copyright-pooling agreement that would enable it to survive a rule of reason analysis. We need to know why six (6) different multibillion dollar, multinational corporations did in fact need to pool all their resources to join forces against a home health aide living in Brooklyn, and found it impossible to negotiate settlements with her and others like her other than pursuant to an impermeable, seamless joint front, apart from the obvious explanation that they did it to increase their leverage in bludgeoning defendants into a defenseless posture, where accepting an extortionate settlement demand would be their only means of averting financial ruin.
Plaintiffs thus avoided the sole issue that is properly before the Court on this motion.
* Document published online at Internet Law & Regulation
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