An Expanded Scope for the Copyright Misuse Defense?

We are often reminded that the basis for U.S. copyright law is the short provision of the Constitution giving Congress the “Power…To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [Art. 1, Section 8] 

This constitutional source says that the “monopoly” granted must be temporary, and that the restraints (under copyright and patent law) should serve a particular purpose, the promotion of knowledge and art. Still, over the years, the duration of those “temporary restraints” (exclusive rights) has been increasing. 

It is also not apparent that the constitutional purpose is a consistently observed guiding principle. Some argue there is too fierce a trend currently toward expanding copyright and its enforcement. At the same time, increased copyright vigilance has been regarded by others as a necessity given the ready distribution and easy duplication afforded by digital technology.

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[1] Other invocations of the copyright misuse defense served a similar purpose. In Alcatel U.S.A., Inc. v. DGI Technologies, Inc., 166 F.3d 772 (1999), the Fifth Circuit allowed a copyright misuse defense when the holder of a copyright in software licensed its use only on the condition that the licensee use the software only on the copyright holder's hardware. In DSC Communications Corp. v. DGI Technologies, 81 F.3d 597 (1996), another Fifth Circuit case, a license prohibiting the development of a competing microprocessor card was found to be copyright misuse.