Gaining Momentum: A Review of Recent Developments Surrounding the Expansion of the Copyright Misuse Doctrine and Analysis of the Doctrine in its Current Form

Abstract

This article examines the copyright misuse doctrine. As a defense to claims of copyright infringement, copyright misuse limits attempts by intellectual property owners to expand their monopoly or enter into agreements that restrain trade. This article analyzes the current state of copyright misuse and posits that some form of the defense will eventually be adopted in most jurisdictions. Currently, the doctrine's strengths outweigh its weaknesses, making it suitable for use in actions taken by copyright owners who violate public policy. Copyright misuse is often preferable to antitrust remedies or the fair use defense. Indeed, the doctrine functions best to fill the gap between these remedies. Copyright misuse is most effective when other remedies are legally inapplicable or practically undesirable. Therefore, while the doctrine is not a panacea, it is an important mechanism for restoring balance to copyright law.

Keywords: copyright misuse, antitrust, copyright, cyberlaw, licensing, technology