Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT FLORIDA
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`CASE NO. 1:21-cv-21698-DPG
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`ATHOS OVERSEAS LIMITED CORP.,
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`Plaintiff,
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`v.
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`YOUTUBE, INC., YOUTUBE, LLC, and
`GOOGLE, LLC,
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`Defendants.
`_____________________________________/
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`PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
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`Plaintiff, Athos Overseas Limited Corp. (the “Plaintiff”), pursuant to Federal Rule of Civil
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`Procedure 56 and Southern District of Florida Local Rule 56.1(a), hereby files this Motion for
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`Partial Summary Judgment.
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`I.
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`INTRODUCTION
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`Plaintiff is entitled to summary judgment on Defendants’ affirmative defenses of License,
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`Fair Use, Estoppel, Failure to Mitigate Damages, Statute of Limitations, Substantial Non
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`Infringing Use, De Minimis Use, Waiver, and Unclean Hands. Each of the affirmative defenses
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`asserted by the Defendants fail to include facts supporting the defenses, and discovery showed
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`there are no facts supporting them. The absence of evidence entitles Plaintiff to summary judgment
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`on the Defendants’ Affirmative Defenses.
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`Further, Plaintiff is entitled to partial summary on the issue of ownership of the films at
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`issue in this litigation. Plaintiff has produced all evidence showing it is the owner of the copyrights
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`and there is no evidence to the contrary. Therefore, there is no genuine dispute of material fact
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 2 of 19
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`regarding ownership, and Plaintiff is entitled to partial summary judgment on that element of the
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`claims.
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`II. MEMORANDUM OF LAW
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`a. Legal Standard
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`Under Federal Rule of Civil Procedure 56, a court must grant summary judgment if the
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`materials in the record, such as depositions, documents, electronically stored information,
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`affidavits, declarations and stipulations show there is no genuine dispute as to any material fact or
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`that the adverse party cannot produce admissible evidence to support the fact and the movant is
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`entitled
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`to
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`judgment
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`as
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`a matter of
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`law. Fed. R. Civ. P. 56(a),
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`(c)(1).
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`Summary judgment is appropriate, “after adequate time for discovery and upon motion, against a
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`party who fails to make a showing sufficient to establish the existence of an element essential to
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`that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
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`Catrett, 477 U.S. 317, 322 (1986).
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`“The moving party bears the initial burden to show, by reference to materials on file, that
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`there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark,
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`Inc., 929 F.2d 604, 608 (11th Cir. 1991). “Only when that burden has been met does the burden
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`shift to the non-moving party to demonstrate that there is indeed a material issue of fact that
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`precludes summary judgment.” Clark, 929 F.2d at 608. When the moving party has carried its
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`burden, the party opposing summary judgment must do more than show that there is “metaphysical
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`doubt” as to any material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
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`586 (1986). Indeed, Rule 56 “requires the nonmoving party to go beyond the pleadings and, by her
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`own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
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`specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 2 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 3 of 19
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`(emphasis added). “For issues, however, on which the non-movant would bear the burden of proof
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`at trial, ‘the moving party is not required to support its motion with affidavits or other similar
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`material negating the
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`opponent's
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`claim
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`in
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`order
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`to
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`discharge
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`this
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`initial
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`responsibility.’” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115–16 (11th Cir. 1993). “Instead,
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`the moving party simply may show . . . that there is an absence of evidence to support the non-
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`moving party's case. . . .” Id.
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`At summary judgment, the Court must view the evidence and draw inferences in the light
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`most favorable to the nonmoving party. See Matsushita Elec. Indus., 475 U.S. at 586. “All
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`reasonable inferences arising from the undisputed facts should be made in favor of the
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`nonmovant.” Chapman v. Am. Cyanamid Co., 861 F.2d 1515, 1518 (11th Cir. 1988). “However,
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`an inference based on speculation and conjecture is not reasonable.” Id. “Speculation does not
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`create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary
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`goal of summary judgment.” Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).
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`“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving
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`party, there is no ‘genuine issue for trial.’” See Matsushita Elec. Indus., 475 U.S. at 587. “Partial
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`summary judgment may properly be granted on affirmative defenses.” King v. Akima Glb. Servs.,
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`LLC, No. 16-cv-25254-MARTINEZ, 2021 WL 5205960, at *3 (S.D. Fla. Nov. 8, 2021). To prevail
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`on a motion for summary judgment as to affirmative defenses, a plaintiff must show that the
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`defendant “cannot maintain [the] defenses by a preponderance of the evidence.” Eli Rsch., LLC v.
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`Must Have Info Inc., No. 16-24687-CIV-WILLIAMS/SIMONTON, 2018 WL 5098972, at *2
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`(S.D. Fla. Aug. 14, 2018). The defendant, in turn, must “rely on or submit record evidence in
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`support of the purported affirmative defenses to create a genuine issue of material fact preventing
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`the entry of summary judgment.” Id. “An affirmative defense admits the facts of the complaint and
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 3 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 4 of 19
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`asserts additional facts in justification or avoidance of a claim.” Biscayne Cove Condo. Ass'n, Inc.
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`v. QBE Ins., 951 F. Supp. 2d 1292, 1305 (S.D. Fla. 2013) (citing Morrison v. Exec. Aircraft
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`Refinishing, Inc., 434 F. Supp. 2d 1314, 1319 (S.D. Fla. 2005)).
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`b. Argument
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`i. Plaintiff is entitled to summary judgment on Defendants’ affirmative
`defenses.
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`1. License Defense
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`Defendants’ Second Defense is “license.” Defendants assert the “claims are barred in
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`whole or in part by licenses, consents, or permissions that Plaintiff and its agents have granted to
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`YouTube and Google, and/or to third parties who in turn have granted licenses to YouTube and
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`Google. Answer1 p. 31. Defendants have not presented any evidence supporting the defense.
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`The record clearly shows that neither Plaintiff nor its agents have provided Defendants
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`authority to use Plaintiff’s content. As to authority received from Plaintiff’s representative (Carlos
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`Vasallo), Defendants’ Corporate Representative testified Defendants are “not aware of any facts
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`about him uploading content to YouTube personally.” SOF2, ¶10; Ds. Depo.3 023:01-03.
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`Defendants have no knowledge about Carlos Vasallo uploading any content to YouTube. SOF,
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`¶10; Ds Depo. 023:09-12. Defendants have absolutely no evidence showing Plaintiff authorized
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`Defendants’ use of its content and the works in suit. SOF, ¶10; Ds Depo. 025:19-22 (
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`). Defendants also have no facts supporting their assertion that Plaintiff’s agents uploaded
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`1 The Defendant’s Answer to Plaintiff’s Amended Complaint is document ECF No. 106.
`2 “SOF” refers to the Statement of Material Facts in Support of this Motion for Partial Summary
`Judgment.
`3 The deposition of Brian Carver, who was Defendants’ Corporate Representative on topics related
`to the Affirmative Defenses, will be cited as “Ds Depo. ____.”
`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 4 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 5 of 19
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`content to YouTube and gave You Tube a license to display Plaintiff’s content. SOF, ¶10; Ds
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`Depo. 023:13-025:22 (
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`). Plaintiff licenses its movies to Top Entertainment
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`Products, Inc., which is wholly owned by Top Product Investments, Inc., which in turn is owned
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`by Gente de Cine, S.A. – all of which are wholly owned by Carlos Vasallo. Top Entertainment
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`Products, Inc. licenses the movies to two companies wholly owned by Plaintiff: Cine Estelar, Inc.,
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`and Cine Nostalgia, Inc. Rogs, ¶5.4 As stated above, Defendants have no evidence showing that
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`any of these affiliated entities uploaded the works in suit to YouTube and gave YouTube a license.
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`SOF, ¶10; Ds Depo. 023:13-025:22.
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`Defendants also do not have any evidence showing Plaintiff gave Defendants a license to
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`use and display its content. Ds Depo. SOF, ¶10; 027:21-24 (Q. “[W]hat license has the plaintiff
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`given to YouTube? A. I'm not aware of the plaintiff granting a license to YouTube directly.”)
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`Defendants state that sometimes a copyrights holder may grant a license to YouTube and Google
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`indirectly through their terms of services when an uploader uploads content to YouTube. See Ds
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`Depo. 028:02-09; SOF, ¶10. Despite this general assertion, Defendants do not have any evidence
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`demonstrating that any of the thousands of uploaders of Plaintiff’s content had a license to use
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`Plaintiff’s content. Defendants’ corporate representative testified that Defendants
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`4 “Rogs. __” refers to Plaintiff’s Supplemental Response to the Third Amended Response to
`Defendants’ First Set of Interrogatories served by Plaintiff on August 30, 2022, and attached as
`Exhibit 1 to the Statement of Material Facts in Support of this Motion for Partial Summary
`Judgment.
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 5 of 19
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`SOF, ¶10. Yet, Defendants have absolutely no information as to the validity of the asserted license,
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`and cannot identify neither which uploader alleged to have a license nor the film at issue.
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`Defendants’ corporate representative provided the following testimony:
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` Ds Depo. 028:16-23;
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`Ds Depo. 030:18-23; 033:04-06; 034:07-034:11; SOF, ¶10. Simply stated, Defendants do not have
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`evidence of the existence of any licenses. SOF, ¶10; Ds Depo. 043:15-18
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`Defendants also have no evidence of consent
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`authorizing Defendants’ display of Plaintiff’s works. Defendants’ license defense is premised on
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`speculation and, at most, a single instance - in over thousands of occurrences - of an unidentified
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`counter-notification that did not contain any evidence of the existence of a license. SOF, ¶10; Ds
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`Depo. 044:11-044:25; 045:17-046:01. Defendants
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` Ds Depo. 059:16 - 059:22. There are no facts substantiating Defendants’ license
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`defense. SOF, ¶10. As a result, summary judgment is warranted on this defense.
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 6 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 7 of 19
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`ii. Fair Use Defense
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`Defendants’ Third Defense is “Fair Use.” Defendants state as follows: “Although the
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`Amended Complaint fails to identify with specificity the allegedly infringing activity on the
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`YouTube platform, such activity is not infringing to the extent it constitutes a fair use of the
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`underlying copyrighted material.” Answer, p. 31. The fair use doctrine is an equitable rule of
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`reason, which permits courts to avoid rigid application of the copyright statute when, on occasion,
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`it would stifle the very creativity which that law is designed to foster. Stewart v. Abend, 495 U.S.
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`207, 236 (1990). A fair use defense to a claim of copyright infringement is provided for in 17
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`U.S.C. §107. The statute provides that fair use of a copyrighted work is not infringement.
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`Specifically, the statute states that “the fair use of a copyrighted work, including such use by
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`reproduction in copies or phonorecords or by any other means specified by that section, for
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`purposes such as criticism, comment, news reporting, teaching (including multiple copies for
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`classroom use), scholarship, or research, is not an infringement of copyright.” 17 U.S.C. §107. To
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`determine whether the use of a work constitutes fair use, the court shall consider the following
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`factors:
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`(1) the purpose and character of the use, including whether such use is of a commercial
`nature or is for nonprofit educational purposes;
`(2) the nature of the copyrighted work;
`(3) the amount and substantiality of the portion used in relation to the copyrighted work
`as a whole; and
`(4) the effect of the use upon the potential market for or value of the copyrighted work.
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`17 U.S.C. § 107. Fair use analysis “must always be tailored to the individual case.” Harper & Row
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`Publishers, Inc. v. Nation Enter., 471 U.S. 539, 552–53 (1985).
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`Defendants have not provided any evidence supporting that the content uploaded to
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`YouTube without Plaintiff’s authorization constitutes fair use. Defendants’ generally assert t
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 7 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 8 of 19
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` (Ds Depo. 047:08-12); yet, Defendants cannot identify those
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`videos. Defendants’ corporate representative testified he saw one video (out of the thousands at
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`issue in this case) that had commentary of a film, but he was unable to identify the URL or the
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`film. Ds Depo. 047:15-048:01; SOF, ¶11. Defendants could not identify the title of the film or
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`provide any information that would allow Plaintiff to identify the video they allege to be fair use.
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`Ds Depo. 48:16-21
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`; SOF, ¶11. Defendants also allege to have received a counter-notification where the
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`uploader claimed the content was fair use, but Defendants also cannot identify anything about the
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`content. Ds Depo. 053:06-054:06; SOF, ¶11.
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`Ds Depo. 054:09-054:10, 055:01-055:03, 055:07-055:10; SOF, ¶11. Defendants have plead a fair
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`use defense with boilerplate language and did not identify the evidence supporting the defense
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`during discovery. Defendants have not met their burden of proof, and the Plaintiff is entitled to
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`summary judgment on the fair use defense.
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`iii. Estoppel Defense
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`Defendants assert Estoppel as their Fourth Defense and allege the “Plaintiff’s claims are
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`barred in whole or in part by the doctrine of estoppel, to the extent that YouTube has relied on
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 8 of 19
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`representations from Plaintiff or its representatives or agents about their authorization to post and
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`YouTube’s authorization to use all or portions of the copyrighted works at issue.” Answer, pp. 31-
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`32. Copyright estoppel applies when the alleged infringer can show that (1) the copyright owner
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`knew the facts of the infringement, (2) the copyright owner intended its conduct to be acted upon
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`or the copyright owner acted such that the alleged infringer has a right to believe it was so intended,
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`(3) the alleged infringer is ignorant of the true facts, and (4) the alleged infringer relies on the
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`copyright owner's conduct to his detriment. See HGI Assocs., Inc. v. Wetmore Printing Co., 427
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`F.3d 867, 875 (11th Cir. 2005) citing Carson v. Dynegy, Inc., 344 F.3d 446, 453 (5th Cir. 2003).
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`Defendants have not presented any evidence substantiating their allegation that “YouTube
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`has relied” on Plaintiff’s or its agents’ authorization for YouTube “to post and YouTube’s
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`authorization to use all or portions of the copyrighted works at issue.” Answer, pp. 31-32.
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`Defendants generally state they rely on the authorization provided by users of the YouTube
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`platform when they upload content and accept YouTube’s terms of service. But as to
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`representations provided by Plaintiff itself or its agents authorizing YouTube’s use of Plaintiff’s
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`content, Defendants have no evidence. The Defendants’ deposition testimony was the following:
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 9 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 10 of 19
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`Ds Depo. 060:12 - 060:22; 061:07-11; 062:15-21; 064:25-065:06; SOF, ¶12. As with the license
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`defense, Defendants’ estoppel defense is void of any support in the record evidence. Plaintiff is
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`entitled to summary judgment because there are no facts supporting the defense.
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`iv. Failure to Mitigate Defense
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`The Fifth Defense asserted by Defendants is Failure to Mitigate. Defendants assert the
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`following:
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`Plaintiff’s claims are barred in whole or in part because Plaintiff has failed to
`mitigate its damages, if any. Plaintiff is, for example, well aware of the ability to
`request the removal from YouTube of allegedly infringing content using the process
`set forth in the DMCA. To the extent Plaintiff failed to employ that process with
`respect to specific allegedly infringing material on the YouTube service, Plaintiff
`has failed to mitigate its damages.
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`Answer, p. 32. Defendants’ factual predicate for their failure to mitigate defense is infringements
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`that are not subject of this lawsuit. Since late 2014, Plaintiff’s has been notifying YouTube that all
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`of Plaintiff’s content showing on YouTube was not authorized. SOF, ¶¶3-4. Defendants refused to
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`stop the infringement and forced Plaintiff to send thousands of take-down notices to protect its
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`copyrighted works. Id. Those take-down notices are specifically identified in the exhibits to the
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`Amended Complaint and have been supplemented in discovery. See e.g., AC5 at Ex. B; SOF, ¶4.
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`Plaintiff seeks damages in this action for those specific instances. Defendants’ failure to mitigate
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`defense bears no relationship to those instances of infringement. During the deposition of
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`5 “AC” refers to the Amended Complaint ECF No. 100.
`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 10 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 11 of 19
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`Defendants’ corporate representative, Defendants explained that this defense relates to “a period
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`recently of about a year, starting shortly after the filing of this lawsuit, where it appears the plaintiff
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`has stopped sending notices[.]” Ds Depo. 066:25-067:02; SOF, ¶13.
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` Ds Depo. 067:07-23; SOF, ¶13. Defendants do not rely on any
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`additional facts supporting the defense. Ds Depo. 068:07-068:11; SOF, ¶13.
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`Moreover, the defense is contradicted by the undisputed facts in this case. Specifically,
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`Plaintiff employed the process to remove the movies, as evidenced by the countless take-down
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`notices. SOF, ¶4. Defendants, therefore, have not introduced any proof of Plaintiff’s failure to
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`mitigate damages. As a result, Plaintiff is entitled to summary judgment on the defense.
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`v. Statute of Limitations Defense
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`Defendants’ Sixth Defense is that the Plaintiff’s claims are barred by the three-year statute
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`of limitations provided for in 17 U.S.C. § 507(b), which states civil actions under the Copyright
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`Act have to be commenced “within three years after the claim accrued. See 17 U.S.C. § 507(b).”
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`Answer, p. 32. The Court’s Order on Defendants’ Motion to Dismiss resolved that this action
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`solely involves claims that accrued after May 3, 2018. SOF, ¶14. Accordingly, all claims are within
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`the statue of limitations. There is no genuine issue of material fact disputing that the infringements
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`at issue occurred within the limitations period. Further, Plaintiff’s Expert Damages Report
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`confirms the damages period begins on May 3, 2018. SOF, ¶15. Therefore, summary judgment is
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`appropriate on Defendants’ Sixth Defense. King v. Akima Glob. Servs., LLC, No. 16-CV-25254,
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`2021 WL 5205960, at *4 (S.D. Fla. Nov. 8, 2021)(granting summary judgment on statute of
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`limitations defense because there are no material facts in dispute as to timeliness of the claim).
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 11 of 19
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`vi. Substantial Non-Infringing Use Defense
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`As their Seventh Defense Defendants assert “Substantial Non-Infringing Use.” In support
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`Defendants assert “Plaintiff’s claims are barred in whole or in part based on the doctrine of
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`substantial non-infringing use, although Defendants submit Plaintiff’s bears the burden of proving
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`the doctrine.” Answer, p. 32. The substantial non-infringing use defense is not applicable in direct
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`infringement cases. Dish Network L.L.C. v. Fraifer, No. 8:16-CV-2549-TPB CPT, 2021 WL
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`6690278, at *2 (M.D. Fla. Dec. 13, 2021), appeal dismissed, No. 22-10186-BB, 2022 WL 1251073
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`(11th Cir. Apr. 11, 2022) citing Spanski Enters., Inc. v. Telewizja Polska, S.A., 883 F.3d 904, 913
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`(D.C. Cir. 2018). Therefore, the defense does not apply to Counts I, II, III, IV, VI, VIII, IX, and
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`X. Accordingly, summary judgment on this defense is warranted for the enumerated counts. 6
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`vii. De Minimis Use Defense
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`Defendants’ Eighth Defense is “De Minimis Use”. Defendants state that “[a]lthough the
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`Complaint fails to identify any specific allegedly infringing activity on the YouTube platform,
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`such activity is not infringing to the extent it constitutes de minimis use of the underlying
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`copyrighted material.” Answer, p. 33. Defendants have no proof for this defense. Defendants
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`testified the following:
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`6 Plaintiff is not moving for summary judgment on this defense as to Count V for Contributory
`Copyright Infringement.
`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 12 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 13 of 19
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`Ds Depo. 077:17-20, 077:07-11; SOF, ¶17. There is no evidence supporting the defense. The
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`Defendants in this case provided over 3,000 videos which correlate to the items which are the
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`subject of this litigation. SOF, ¶16. Despite having all the videos, Defendants cannot identify any
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`they assert constitutes de minimis use. Therefore, Plaintiff is entitled to summary judgment on the
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`Defendants’ De Minimis Use defense.
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`viii. Waiver Defense
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`As their Ninth Defense, Defendants assert the Plaintiff’s claims are barred by the doctrine
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`of waiver. In particular, Defendants state that “Plaintiff and/or those acting at its direction, after
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`learning of alleged infringements on which Plaintiff’s claims were based, may have at times
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`refused to submit DMCA takedown notices and failed to meet Defendants’ requests for the
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`information necessary to identify and remove those alleged infringements.” Answer, p. 33.
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`“Waiver or abandonment of copyright ‘occurs only if there is an intent by the copyright proprietor
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`to surrender rights in his work.’ ” Oravec v. Sunny Isles Luxury Ventures L.C., 469 F.Supp.2d
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`1148, 1177 (S.D. Fla. 2006) (quoting A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026
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`(9th Cir.2001)). Defendants have not provided evidence of even one instance in which the Plaintiff
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`waived its claims. The evidence in this case shows the Defendants learned Plaintiff’s content was
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`on YouTube without authorization as far back as late 2014. SOF, ¶¶3-4. Nonetheless, Defendants
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`forced Plaintiff to send thousands of take-down notices to the Defendants for each Work in Suit.
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`SOF, ¶¶3-4. During deposition, Defendants’ corporate representative generally described
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`categories of what Defendants characterize as waiver of a copyright claim. Ds Depo. 079:01-
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`080:14; SOF, ¶18. However, Defendants did not provide evidence of any instance where Plaintiff
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`“refused to submit DMCA takedown notices and failed to meet Defendants’ requests for the
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`information necessary to identify and remove those alleged infringements.” Answer, p. 33.
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 13 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 14 of 19
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`Plaintiff does not seek to recover damages for unauthorized uploads which fail to have a
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`corresponding take-down notice. Defendants have not provided proof of any instance where
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`Plaintiff did not comply with the requirements of a take-down notice or failed to respond to a
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`request for information from YouTube related to any deficiency. Defendants solely rely on rare
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`occasions of counter-notifications where the uploader asserted it had a license or the content
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`constituted fair use. Ds Depo. 089:21-23; SOF, ¶18. However, as stated above, Defendants did not
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`provide any information identifying those alleged counter-notifications and the works involved.
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`See Ds Depo. 030:18-23; 034:07-034:11; 047:15-048:01; 48:16-21; SOF ¶¶10-11. Accordingly,
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`Defendants’ evidence in support of the waiver defense is insufficient and it fails as matter of law.
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`ix. Unclean Hands Defense
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`Defendants’ last affirmative defense is Unclean Hands. The defense is untimely and fails
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`to meet the elements of the cause of action. Defendants assert the following:
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`Plaintiff has misrepresented its use of Defendants’ services, including relevant
`negotiations and agreements between the parties and their agents. Plaintiff has also
`provided contradictory information on the scope of the licenses it has issued for the
`Works in Suit, making it impossible for Defendants to identify how, or if, the Works
`in Suit were monetized or what rights were licensed to whom. Moreover, Plaintiff
`has engaged in obstreperous and obstructive conduct during discovery including
`refusing to answer straightforward questions about topics relevant to Plaintiff’s
`claims and Defendants’ defenses.
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`Answer, p. 33. First, the defense of Unclean Hands is untimely because it was filed in an Amended
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`Answer and Affirmative Defenses without leave of Court. Plaintiff has filed a motion to strike the
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`defense. ECF No. 47. Defendants raised this defense in response to the Plaintiff’s Amended
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`Complaint, which was authorized by the Court solely to correct a misnomer in Plaintiff’s legal
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`name. ECF Nos. 98, 100. The Amended Complaint did not change facts or add new issues of law
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`that would have allowed Defendants to include an additional affirmative defense. See ECF No. 90.
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`Further, Defendants did not ask the Court for authorization to assert it. Additionally, Defendants
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 14 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 15 of 19
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`do not provide any specific facts substantiating the defense. Defendants assert “Plaintiff has
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`misrepresented its use of Defendants’ services, including relevant negotiations and agreements
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`between the parties and their agents” (Answer, p. 33), but provides no detail from which Plaintiff
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`can ascertain what is the basis of the alleged wrongdoing. The same is true of the allegation that
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`“Plaintiff has also provided contradictory information on the scope of the licenses it has issued for
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`the Works in Suit, making it impossible for Defendants to identify how, or if, the Works in Suit
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`were monetized or what rights were licensed to whom.” Answer, p. 33. The lack of specificity on
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`the affirmative defense does not provide Plaintiff with sufficient information to properly defend
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`against it. Given that Defendants asserted this affirmative defense after the close of fact discovery
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`and after the conclusion of all depositions, Plaintiff has no means of discovering the purported
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`evidence Defendants intend to use to prove the defense.
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`Second, the defense fails as a matter of law. To prove unclean hands Defendants must
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`demonstrate that: (1) Plaintiff's alleged wrongdoing is directly related to the claim against which
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`it is asserted; and (2) Defendants were personally injured by Plaintiff's conduct. Calloway v.
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`Partners Nat'l Health Plans, 986 F.2d 446, 450–51 (11th Cir. 1993); Mitchell Bros. Film Group v.
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`Cinema Adult Theater, 604 F.2d 852, 863 (5th Cir. 1979). As an example, the defense has been
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`applied when the “plaintiff misused the process of the courts by falsifying a court order, by
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`falsifying evidence, or by misrepresenting the scope of his copyright to the court and opposing
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`party,” or “when the plaintiff obtained information as to the nature of defendant's work through
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`unfair means.” Thornton v. J Jargon Co., 580 F. Supp. 2d 1261, 1283 (M.D. Fla. 2008) quoting 3
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`Nimmer on Copyright, § 13.09[B](1991). Defendants’ allegations do not meet the elements of the
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`defense. There is no evidence that Plaintiff committed any wrongdoing because it does not exist.
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`Defendants’ purported unclean hands defense seeks to refute Plaintiff’s assertion that it is the
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 15 of 19
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`

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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 16 of 19
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`copyright holder entitled to enforce its rights. Defendants offer no basis in law or fact to
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`substantiate this position. To the contrary, the uncontroverted evidence is that the Plaintiff is the
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`rightful copyright holder. Alternatively, the defense seeks to assert an untimely complaint about
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`discovery issues. There is not one ruling from this Court or the Magistrate Judge that the Plaintiff
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`has done anything improper in the discovery process. Defendant never raised the issue when the
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`fact discovery period was open. In fact, to this day, no such motion or claim exists. The attempt to
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`disguise a non-existent discovery issue as an affirmative defense is meritless. The allegations do
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`not meet the elements of the defense, and Plaintiff is entitled to summary judgment.
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`
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`Moreover, the defense of unclean hands does not apply to the legal claims at issue. Coquina
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`Invs. v. Rothstein, No. 10-60786-CIV, 2011 WL 4971923, at *15 (S.D. Fla. Oct. 19, 2011), aff'd
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`sub nom. Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300 (11th Cir. 2014) (“The unclean hands
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`doctrine traditionally applies only to claims for equitable relief or in opposition to equitable
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`defenses.”) Although Plaintiff seeks an order that restrains Defendants’ continued infringement,
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`Plaintiff also seeks damages for Defendants’ wrongdoing. Therefore, the defense does not apply
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`to those legal claims.
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`ii.
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`There are no genuine issues of fact precluding summary judgment on
`Plaintiff’s ownership of the works in suit.
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`Each cause of action in the Amended Complaint requires Plaintiff to establish ownership
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`
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`of the copyrighted material (the “Works in Suit”). See AC. As detailed below, Plaintiff’s
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`ownership of
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`the Works
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`in Suit
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`is undisputed. Pursuant
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`to 17 U.S.C. § 410(c),
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`the Copyright Office's grant of copyright protection, evidenced by the Certificate of Registration,
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`is prima facie evidence of validity of the copyright and establishes proof of ownership of a
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`valid copyright. See Arthur Rutenberg Homes, Inc. v. Berger, 910 F. Supp. 603, 606-07 (M.D. Fla.
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`1995); see generally Donald Frederick Evans v. Cont’l Homes, Inc., 785 F.2d 897, 903 (11th Cir.
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`Athos Overseas Limited Corp. v. YouTube, LLC, et. al.
`Plaintiff’s Motion for Partial Summary Judgment
`Page 16 of 19
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`Case 1:21-cv-21698-DPG Document 113 Entered on FLSD Docket 11/30/2022 Page 17 of 19
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`1986). Here, Plaintiff has produced all the documents reflecting its direct copyrights or the
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`assignments conveyed to it by the previous copyright owners. SOF ¶2. Defendants have provided
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`no evidence to the contrary.
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`Furthermore, only “[t]he legal or beneficial owner of an exclusive right under a copyright is
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`enti