So here are all 20 defenses listed in the Answer:
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DEFENSES
Defendants assert the following defenses, without regard to whether they are “affirmative” defenses or matters as to which the Plaintiff has the burden of proof.
1. Plaintiff’s Complaint, and each cause of action within it, fails to state a cause of action.
2. Process has been insufficient.
3. Service of process has been insufficient.
4. This court lacks personal jurisdiction over Defendants.
5. This court is not a proper venue for this action.
6. Plaintiff’s claims are barred by its failure to join indispensable parties.
7. Plaintiff’s claims are barred by the doctrine of fair use.
8. Plaintiff’s claims are barred by the First Amendment to the United States Constitution.
9. Plaintiff’s claims are barred by consent, waiver, acquiescence, license, and estoppel.
10. Plaintiff’s claims are barred by its failure to mitigate damages.
11. Plaintiff’s claims are barred by the equitable doctrine that the law does not concern itself with trivial matters (commonly known as de minimis non curat lex).
12. Plaintiff’s claims are barred by laches.
13. Plaintiff’s claims are barred by the doctrine of unclean hands.
14. Plaintiff’s claims are barred to the extent any persons, based on whose behavior Plaintiff seeks to hold Defendants liable, are innocent infringers.
15. Plaintiff’s claims are barred due to copyright misuse.
16. Plaintiff’s claims are barred to the extent it has caused fraud upon the Copyright Office.
17. Plaintiff’s claims are barred to the extent it has forfeited or abandoned copyright.
18. Plaintiff’s claims are barred because Plaintiff is engaging in barratry, champerty, and maintenance.
19. Plaintiff’s claims for statutory damages are barred or limited by the United States Constitution.
20. Plaintiff’s claims are barred because Plaintiff lacks standing.
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It's not everyday you see someone bring up laches, barratry, and champerty. LOL! Clearly they're going with the "throw the whole book at 'em" defense strategy.
It's kind of a silly list though, since most of those defenses don't even have a chance of winning. The answer sketches out the arguments for some of the defenses, but it's silent for the others. That's not too surprising since the arguments aren't really sussed out at this stage of things. I look forward to seeing their arguments in more detail if things get to the point where they make them. I suspect that if this makes it to trial, that list will be a lot shorter at that time.
I think that clearly the best defense here is fair use. I suspect EFF got involved in this case because it's one of only two or three where the infringement involved less than the whole lvrj.com article. Not copying the whole article really helps out when arguing fair use.
I'm a little confused though about exactly what the counterclaim strategy is. Apparently their entire counterclaim is for a "Declaration of No Copyright Infringement." Huh? I've never heard of anyone counterclaiming for a declaratory judgment that their use is not infringing. This doesn't make sense to me since their defense is that their use is not infringing. If you're already asking the court to declare that your use is not infringing as your defense, what's the need for a counterclaim for the same declaration? Perhaps they have a strategy, but to me it doesn't make sense.
(reply to this)
(link to this) (view in thread)
Californians from across the political spectrum are trying to raise money to defeat Prop 23, but the vote could be close. George Shultz, a former secretary of state during the Reagan administration, has taken a leading role in the campaign against Prop 23. (See: www.stopdirtyenergyprop.com.)
“Prop 23 is designed to kill by indefinite postponement California’s effort to clean up the environment,” said Mr. Shultz. “This effort is financed heavily by money from out of state. You have to conclude that the financiers are less concerned about California than they are about the fact that if we get something that is working here to clean up the air and launch a clean-tech industry, it will go national and maybe international. So the stakes are high. I hope we can win here and send a message to the whole country that it’s time to put aside partisan politics and get an energy bill out of Washington.”
That’s Tom Friedman writing in his column today on Big Oil’s effort to kill California’s climate and clean energy laws, which CP has been closely tracking (click here for links).
Here’s more:
The Terminator, a k a the Governator, is not happy. And you shouldn’t be either.
What has Gov. Arnold Schwarzenegger of California incensed is the fact that two Texas oil companies with two refineries each in California are financing a campaign to roll back California’s landmark laws to slow global warming and promote clean energy innovation, because it would require the refiners to install new emission-control tools. At a time when President Obama and Congress have failed to pass a clean energy bill, California’s laws are the best thing we have going to stimulate clean-tech in America. We don’t want them gutted. C’mon in. This is a fight worth having.
Here are the basics: Next month Californians will vote on “Prop 23,” a proposal to effectively kill implementation of California’s Global Warming Solutions Act of 2006, known as A.B. 32. It was supported by Republicans, Democrats, businesses and environmentalists. Prop 23 proposes to suspend implementation of A.B. 32 until California achieves four consecutive quarters of unemployment below 5.5 percent. It is currently above 12 percent. (Sorry for all the numbers. Just remember: A.B. 32, good; Prop 23, bad.)
A.B. 32 was designed to put California on a path to reducing greenhouse gases in its air to 1990 levels by 2020. This would make the state a healthier place, and a more innovative one. Since A.B. 32 was passed, investors have poured billions of dollars into making new technologies to meet these standards.
“It is very clear that the oil companies from outside the state that are trying to take out A.B. 32, and trying to take out our environmental laws, have no interest in suspending it, but just to get rid of it,” Governor Schwarzenegger said at an energy forum we both participated in last week in Sacramento, sponsored by its energetic mayor, Kevin Johnson. “They want to kill A.B. 32. Otherwise they wouldn’t put this provision in there about the 5.5 percent unemployment rate. It’s very rare that California in the last 40 years had an unemployment rate of below 5.5 percent for four consecutive quarters. They’re not interested in our environment; they are only interested in greed and filling their pockets with more money.
“And they are very deceptive when they say they want to go and create more jobs in California,” the governor added. “Since when has oil company ever been interested in jobs? Let’s be honest. If they really are interested in jobs, they would want to protect A.B. 32, because actually it’s green technology that is creating the most jobs right now in California, 10 times more than any other sector.”
No, this is not about jobs. As ThinkProgress.org, a progressive research center, reported: Two Texas oil companies, Valero and Tesoro, “have led the charge against the landmark climate law, along with Koch Industries, the giant oil conglomerate owned by right-wing megafunders Charles and David Koch. Koch recently donated $1 million to the effort and has been supporting front groups involved in the campaign.”
…
The real joke is thinking that if California suspends its climate laws that Mother Nature will also take a timeout. “We can wait to solve this problem as long as we want,” says Nate Lewis, an energy chemist at the California Institute of Technology: “But Nature is balancing its books every day. It was a record 113 degrees in Los Angeles the other day. There are laws of politics and laws of physics. Only the latter can’t be repealed.”
Hear! Hear!
Here are five things you can do to win this fight:
- Visit the “No on 23″ website, learn the facts & sign up: www.StopDirtyEnergyProp.com.
- Educate yourself on how California’s climate & energy laws have created companies & jobs: www.CABrightSpot.com.
- Tell your friends by email, on Facebook, at work, & everywhere else.
- Participate in the debate. Write letters to the editor and post comments on blogs & websites.
- Contribute (click here). The other side’s leader, right-wing California Assemblyman Dan Logue, has publicly said he expects the oil companies to spend $50 million.
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