Page:Dynamic Solutions v. Planning & Control.pdf/14

 deposited with the Copyright Office, and there was no proof that the infringed material was contained in the 1942 edition.” Id. The Court held that the cause of action failed for want of proof.

Here, in contrast, the plaintiff has deposited with the Copyright Office the versions of the programs which defendants were “caught” using in 1986 and which it asserts were infringed. The erroneous date entered on the registration form does not affect DSI’s right to sue. The failure in Unistrut to show infringement of a registered, deposited work does not arise here.

For the foregoing reasons, I find plaintiff likely to succeed on its claim that it owns a valid copyright in the Alpha Micro programs.

2. Enforcement of the Copyrights

Defendants argue that even if plaintiff owns valid copyrights in the Alpha Micro software, the copyrights should not be enforced. They invoke the equitable doctrine of unclean hands.

The unclean hands defense has occasionally been held to bar of a valid copyright. However, plaintiff’s wrongdoing must be “of serious proportions.” 3 M. Nimmer, Copyright, § 13.09[B] at 13–145 [citations omitted]. Moreover, it “is not applied where plaintiff’s misconduct is not directly related to the merits of the controversy between the parties, but only where the wrongful acts ‘in some measure affect the equitable relations between the parties in respect of something brought before the court for adjudication.’ ” Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 863 (5th Cir.1979), ''cert. denied sub nom. Bora v. Mitchell Brothers Film Group'', 445 U.S. 917, 100 S.Ct. 1277, 63 L.Ed.2d 601 (1980) (quoting Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 54 S.Ct. 146, 148, 78 L.Ed. 293 (1933))) [sic]. The conduct “must be such that the prosecution of [the plaintiff’s] rights will of itself involve the protection of the wrongdoing.” Leo Feist, Inc. v. Young, 138 F.2d 972, 976 (7th Cir.1943). Thus, the defense has been recognized "where the plaintiff misused the process of the courts by falsifying a court order, or by falsifying evidence, or where the copyright was procured by making fraudulent representations about authorship to the Register of Copyrights, or where plaintiff misrepresented to the court and to the opposing party the scope of his copyright, or where he obtained information as to the nature of defendant’s work through unfair means."

3 Nimmer, supra, at 13–145–13–147 (citations omitted). See Testa v. Janssen, 492 F.Supp. 198, 201 (W.D.Pa.1980).

Defendants contend that plaintiff’s copyrights should not be enforced because its copyright registration certificates “were knowingly false and fraudulently filed.” This contention is without support in the record.

Only a “ ‘knowing failure to advise the Copyright Office of facts which might have occasioned a rejection of the application constitute[s] a reason for holding the registration invalid and thus incapable of supporting an infringement action … or denying enforcement on the ground of unclean hands.’ ” Eckes v. Card Prices Update, 736 F.2d 859, 861–62 (2d Cir.1984) (quoting Russ Berrie & Co. v. Jerry Eisner Co., 482 F.Supp. 980, 988 (S.D.N.Y.1980)).

Defendants maintain that plaintiff intentionally misled the Copyright Office