freely all over the world, if possible. This would have an obviously negative effect on the value of and market for the published, copyrighted version of the Course.
Because all four factors in the fair use analysis weigh against Defendants, this affirmative defense is not a bar to summary judgment for Plaintiffs.
- D. Unclean Hands/Copyright Misuse
The doctrine of unclean hands "is a limited device, invoked by a court only when a plaintiff otherwise entitled to relief has acted so improperly with respect to the controversy at bar that the public interest in punishing the plaintiff outweighs the need to prevent the defendant's tortious conduct." Broadcast Music, 746 F. Supp. at 329. "The defense of unclean hands in copyright actions is recognized only rarely, when the plaintiff's transgression is of serious proportions and relates directly to the subject matter of the infringement action." Id. (citing 3 Nimmer § 13.09[b] at 13-145 (1988)). Defendants contend that Plaintiffs' fraud on the Copyright Office demonstrates their unclean hands. Yet, as set forth above, Plaintiffs have not committed a fraud upon the Copyright Office. Nor have Defendants indicated any serious transgression which Plaintiffs might have committed.
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