One of the common defenses against the music industry's lawsuits is to accuse the record labels of copyright misuse by collusion and acting as an illegal cartel in their legal campaign. In UMG v. Lindor, the labels are attacking that defense in a motion filed earlier this week, asking a federal judge to either strike the defense or force Marie Lindor to amend it to include something other than "mere conclusions and buzzwords."
What has the record labels upset is the accusation that the they are acting in violation of antitrust laws in their legal campaign against consumers. Here's how Marie Lindor's fourth affirmative defense reads: "The plaintiffs, who are competitors, are a cartel acting collusively in violation of the antitrust laws and of public policy, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have." By acting in such a manner, Lindor argues, the record labels are guilty of misusing their copyrights.
The fact that the record labels act together to advance their litigation agenda is unquestioned. At this point, the record labels have filed over 25,000 lawsuits, and since some very early setbacks, they have gone about them in the exact same manner. From the use of Media Sentry as its investigative arm and subsequent John Doe lawsuits to the boilerplate complaints with identical wording, the one thing that the RIAA has demonstrated is a stunning uniformity in its approach to file-sharing cases.
In a way, it makes a lot of sense. The record labels are all attempting to address what they perceive to be a big problem: file-sharing. With the vast majority of the 25,000+ cases settled in the RIAA's favor either via favorable settlements or outright victories, the strategy has proven to be devastatingly effective in the court of law—even if it is a dismal failure in the court of public opinion.
The downside to the record labels' strategy is that they are ostensibly competitors, vying for sales from the music-consuming public. But instead of adjusting their business models to compete more effectively against one another and bolster their sales, competition is laid to the side in favor of a united front in the courtroom.
In its motion to strike the monopoly accusation from the lawsuit, the RIAA argues that its conduct is protected by the First Amendment and Lindor's affirmative defense doesn't hold up to scrutiny. "The Second Circuit has not recognized the affirmative defense of copyright misuse," argues the record labels. And when it has been recognized in courts outside of the Second Circuit, its scope has been limited. "Specifically, those courts that have recognized the existence of such a defense have found it to exist only where a copyright owner 'has impermissibly extended the copyright monopoly in a manner which constitutes an unreasonable restraint of trade.'"
If the court decides that the plaintiffs' alleged copyright misuse is a valid defense for Lindor, the RIAA wants her to be forced to amend her defense. As it stands now, the RIAA argues, her defense consists solely of "mere conclusions and buzzwords... that are meaningless in this context."
As copyright attorney Ray Beckerman notes, this is the first time the RIAA has attacked the copyright misuse claim when used solely as a defense by one of the record labels' targets. Typically, the charges of monopolistic behavior and copyright misuse are made as part of a counterclaim, and the RIAA is all too happy to challenge those charges when they come up.
http://arstechnica.com/news.ars/post/20070830-riaa-denies-copyright-misuse-in-the-wake-of-antitrust-monopoly-accusations.html
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