phrase in question is interpreted to encompass those programs, then that provision is an unenforceable misuse of copyright because it extends rights in RRI's copyrights well beyond their lawful scope. In the present motion, RRI moves to strike this copyright misuse defense on the ground that the defense does not exist here.
Burden of Proof
The plaintiff has a weighty burden. "A motion to strike an affirmative defense . . . for legal insufficiency is not favored . . ." William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2nd Cir. 1984), vacated on other grounds, 478 U.S. 1015, 106 S. Ct 3324, 92 L. Ed. 2d 731 (1986). "Even when the defense presents a purely legal question, the courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite properly are viewed as determinable only after discovery and a hearing on the merits." Id. (quoting with approval, 5 C. Wright and A. Miller, Federal Practice and Procedure § 1381, at 800-801 [at pages 673-76 in volume 5A, § 1381 (2d edition, 1990)]) (emphases added).
Such a disputed issue of law exists here. Neither the Supreme Court nor the Second Circuit has addressed the issue of the existence and extent of a misuse of copyright defense. The Seventh Circuit has held that the defense applies only where there is a violation of antitrust law, Saturday Evening Post Company v. Rumbleseat Press, Inc., 816 F.2d 1191, 1200 (7th Cir. 1987) (holding copyright misuse analogous to the treatment of patent misuse in USM Corporation v. SPS Technologies, Inc., 694 F.2d 505 (7th Cir. 1982), cert. den., 462 U.S. 1107, 77 L. Ed. 2d 1334, 103 S. Ct. 2455 (1983)), which is not alleged here.
"If misuse claims are not tested by conventional antitrust principles, by what principles shall they be tested? Our law is not rich in alternative concepts of monopolistic abuse; and it is rather late in the day to try to develop one without in the process subjecting the rights of patent holders to debilitating uncertainty." Saturday Evening Post, supra, 816 F.2d at 1291 (quoting USM, supra, 694 F.2d at 512).