After being sued this past January for “wilfully, maliciously and intentionally” skirting copy protection technologies to illegally install software on its computers, Forever 21 is fighting back. The fast fashion giant, which was sued by Adobe, Autodesk and Corel early this year in the U.S. District Court for the Northern District of California for illegally reproducing copies of software, such as Photoshop, Acrobat, Illustrator, Autodesk, 3D design software Autodesk and zip utility tool WinZip, has not only denied such allegations, it has shot back at Adobe, saying the software company bullies customers who are accused of piracy into paying exorbitant license fees.
You may recall that in their complaint, Adobe and co. claim that the billion dollar fast fashion company is liable for 63 instances of copyright infringement for software, such as Photoshop, and that it continued the infringing behavior even after it was alerted by Adobe. While Adobe alleges that Forever 21, an apparel chain with nearly 500 stores and $4 billion in yearly revenue, copied and reproduced various versiosn of its creative programs, the retailer claims in a recent filing that it has not infringed any copyrights, and that the software companies filed their lawsuit with “unclean hands,” a legal term meaning that they acted in bad faith. Specifically, Forever 21 claims that Adobe, Corel and Autodesk filed suit so that they could “demand exorbitant license fees” from the retailer.
Of course Forever 21 doesn’t stop there. Its legal counsel sets out a number of additional defenses in the filing, including “fair use,” which allows for limited copying in some circumstances, and a “de minimis” defense, in which asserts that the amount of any code it might have copied was too small to matter and thus, litigate. Moreover, Forever 21 also claims that some of the software at issue is not actually subject to copyright protection in the first place because it’s “functional,” “not original”, or otherwise “not protected by the asserted copyrights.”
This lawsuit is particularly interesting given Forever 21’s truly widespread practice of copying apparel and accessories. While few lawsuits with Forever 21 as a defendant have made it to court (because Forever 21 almost always settles out of court quickly and quietly), that does not mean that it is a stranger to being served. Over the past several years, the Los Angeles-based retailer has been sued by fashion brands Phillip Lim, Feral Childe, Trovata, Diane Von Furstenberg, Foley + Corinna, and Anna Sui, among others.
Given the size of the three plaintiffs in this case and their combined resources, it will likely be much more difficult for Forever 21 to make this lawsuit going away. More to come …