Affirmative defense asserting that Copyright Act is unconstituational survives motion to strike

Plaintiff sued defendant search engine for copyright infringement alleging that defendant wrongfully reposted a picture plaintiff had taken. Defendant’s answer included a number of affirmative defenses. Plaintiff moved to strike the affirmative defenses. The court struck some of them but allowed at least a couple of them to survive.

Unclean hands – Defendant apparently perceived some trollish behavior on the part of the plaintiff. Defendant alleged that, in light of plaintiff’s practice of taking photographs of no actual value, for which there is no market, and seeding them on the internet for the purpose of attempting to extort revenue through litigation, that the claims for equitable relief should be barred by unclean hands. Plaintiff objected, claiming that it was scandalous to characterize plaintiff’s enforcement efforts this way. The court found, though, that the defense was adequately pled and not scandalous. “While the … defense is unfavorable to Plaintiff, it does not ‘cast a cruelly derogatory light on’ Plaintiff as necessary for the Court to conclude that the defense is scandalous.”

Unconstitutionality of portions of Copyright Act – Defendant also asserted that 17 U.S.C. §§ 102 and 410, statues dealing with copyright protections, are unconstitutional as applied to pictures based on technological advancements in photography. Plaintiff responded by pointing out that the Supreme Court since 1884 has found copyright protection for photographs to be constitutional, and argued that defendant presented no cognizable legal argument to suggest that Congress exceeded its constitutional powers by enacting the Copyright Act. Perhaps surprisingly, the court rejected plaintiff’s argument. It noted that the defense was not insufficient, redundant, immaterial, impertinent, or scandalous, but that defendant was arguing that the law, or at least the application of the law, should be changed, and defendant presented grounds for its argument.

Miller v. 4Internet, LLC, 2019 WL 1937567 (D.Nev. April 30, 2019)