After Judge McMahon denied its partial motion to dismiss, Cohere filed its answer to the complaint filed by news organizations Advance Local Media.
Here are the affirmative defenses raised:
- Failure to State a Claim
- Fair Use
- Substantial Noninfringing Uses
- Works or Elements of Works Not Protected by Copyright
- Invalid Ownership / Lack of Ownership
- Lack of Standing
- DMCA Safe Harbor
- De Minimis Copying or Use
- Acts of Third Parties
- Lack of Injury
- Unavailability of Injunctive Relief
- Unconstitutional Damages
- Unclean Hands
- Trademark Fair Use
- Lack of Fame, Inherent Distinctiveness, and/or Secondary Meaning
- No Trademark Use
- Extraterritoriality
- RESERVATION OF ADDITIONAL DEFENSES
Notably, and not suprisingly, Cohere does not raise any defense based on (1) advice of legal counsel or (2) innocent infringement. In Bartz v. Anthropic, a dispute arose over whether a defendant’s invoking either would waive attorney-client privilege for any legal advice defendant relied on when engaging in the alleged infringement. Judge Alsup didn’t rule on that issue because the parties settled. But the issue resurfaced in the lawsuits against OpenAI in which Magistrate Judge Wang did find a waiver based in part OpenAI’s state of mind being “at issue” for willful infringement (I disagree that ruling is correct as a matter of law).