David Scher


Intellectual property, copyright, unclean hands, clean hands, misuse, antitrust, scope of the grant, copyright infringement


Under the equitable doctrine of "unclean hands," courts will deny an otherwise meritorious claim where the claimant has acted so improperly that the need to punish the claimant’s wrongful behavior outweighs the need to punish the defendant’s allegedly unlawful conduct. The principle underlying the doctrine is that equity presumes harm when an unclean plaintiff obtains relief; consequently, one who desires justice must come into court with a “clean slate.” The theory of intellectual property misuse, which stems from the “unclean hands” doctrine, prevents a plaintiff from enforcing an intellectual property right if that plaintiff is guilty of misconduct with respect to that right. For years the courts have failed to distinguish misuse from the anti-trust law. These legal concepts are, however, clearly distinguishable from one another. The misuse defense is viable in copyright infringement actins and should prevent a copyright owner from enforcing his copyright if he has impermissibly extended it beyond the scope of the copyright grant. This Note advocates use of the scope of the grant approach to provide a workable standard for determining whether a copyright owner is guilty of copyright misuse.



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