Forever 21 denies pirating Adobe software, strikes back

Adobe sued Forever 21 in January, in a copyright lawsuit filed along with software makers Corel and Autodesk. All three companies claim that Forever 21 "wilfully, maliciously and intentionally" used their software without proper licenses.

The retailer skirted copy protection technologies to illegally install software on its computers, they said. And it continued the behavior after it was alerted by Adobe to its infringement, according to the lawsuit, filed in federal district court in Northern California. The companies want a jury trial to determine financial damages.

Forever 21 filed its response to the lawsuit Wednesday, denying it has infringed any copyrights.

It lays out several defenses including "fair use," which allows for limited copying in some circumstances, and a "de minimis" defense, which basically means the amount of any code it might have copied was too small to matter.

Intriguingly, it also says the software makers filed their lawsuit with "unclean hands," a legal term meaning they acted unethically or in bad faith. Specifically, Forever 21 refers to "their practice of paying unidentified third parties to 'inform' on alleged infringers and then demanding exorbitant license fees to avoid a lawsuit."

It doesn't provide any more detail, but the retailer might be referring to a program operated by the Software Publishers Association, which offers rewards to people who report businesses for piracy. The rewards can range from $500 to $1 million, depending on the offense.

Forever 21 doesn't mention the SPA in its answer to the complaint, but it disclosed to the court in a separate filing that the industry group could be an "interested party" to the case.

It probably doesn't mean that Forever 21 thinks such rewards programs are illegal, but that Adobe demands unreasonable license fees from companies so they can avoid going to court.

An attorney for Forever 21 had no immediate comment, and Adobe couldn't immediately be reached.

Among its other defenses, Forever 21 says some of the software isn't protected by copyright because it's "functional," "not original," or otherwise "not protected by the asserted copyrights." It also says there was an "implied" license for the software because it came bundled with other products.

Forever 21 asks for a jury trial to sort the matter out.

James Niccolai covers data centers and general technology news for IDG News Service. Follow James on Twitter at @jniccolai. James's e-mail address is james_niccolai@idg.com