Page:Penguin Books v. New Christian Church of Full Endeavor.pdf/46

 (S.D.N.Y. 1993),, 92 F.3d 51 (2d Cir. 1996); , 746 F. Supp. at 329.

There are no facts to suggest that Plaintiffs were aware of Defendants' allegedly infringing use of the Course and permitted the infringement. While Plaintiffs were certainly aware of Defendants' existence as a religious group and teaching organization, no evidence has been presented to suggest that Plaintiffs were aware of Defendants' publications in which substantial sections of the Course were quoted verbatim for a significant period of time prior to making the attempts to prevent such use which culminated in the instant litigation. In addition, there is nothing before the Court to indicate that Defendants were not aware of the true facts. Indeed, Defendants admitted that they were fully aware that the Course was protected by a registered copyright. Where, as here, there is no allegation that the Plaintiffs have aided, induced, or caused Defendants' alleged infringement, but merely that Plaintiffs' passivity has encouraged Defendants' use, "[t]he mere affixation of the copyright notice on copies of the work, if seen by the defendant, has been held to constitute a sufficient assertion of the plaintiff's right so as to counter an estoppel based upon a passive holding out." 4 Nimmer § 13.07 at 13-276 (citing cases). For these reasons, the defense of equitable estoppel can be dismissed.