Today a federal judge in Delaware ruled on Universal Studios Home Entertainment's motion to dismiss Redbox's suit against it. Here's the Wall Street Journal's story on the ruling. The court permitted Redbox's antitrust claims to proceed, while dismissing its claim for tortious interference with Redbox's contracts with USHE's distributors.
I want to highlight the court's other ruling, dismissing Redbox's affirmative claim for copyright misuse. The court's ruling was consistent with ample precedent (see pages 7-9 of this brief), and correct. So for the umpteenth time: There is no such thing as an affirmative claim for copyright misuse. Copyright misuse is an affirmative defense to a claim of copyright infringement. When a defendant is sued for copyright infringement, it may assert a defense of copyright misuse, arguing that the plaintiff has improperly sought to extend the scope of its copyright, usually through overly restrictive licensing practices or similar anti-competitive behavior. If successful, the defense, which is derived from the equitable doctrine of unclean hands, bars the enforcement of the copyright until the abusive practice is purged. See, e.g., Video Pipeline v. Buena Vista Home Entertainment, 342 F.3d 191 (3d Cir. 2003).
Copyright misuse is a real doctrine, but it simply is not an affirmative cause of action. At some point, plaintiffs will stop pleading it as such. But it's taking a while.