the protectible elements of plaintiff's.'" Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995) (quoting Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 122-23 (2d Cir. 1994)).
There is no genuine dispute here that Defendants have copied verbatim large sections of the Course, including the entire Workbook and unadulterated sections of the Text. They have also made foreign translations, and placed portions of the Course on internet web sites. None of these activities was done with the authorization and consent of Plaintiffs. Thus, absent any colorable affirmative defense, summary judgment for Plaintiffs would be proper.
- III. Affirmative Defenses
Defendants have asserted the following affirmative defenses to Plaintiffs' claims: (a) public domain; (b) estoppel; (c) fair use; (d) copyright misuse/unclean hands; (e) freedom of religion; (f) merger; and (g) the related defenses of abandonment, acquiescence, waiver, and laches. These will be considered in turn.
- A. Public Domain
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