By: Brittany Blanchard
The pleading standard for copyright infringement claims is shockingly unsettled. It is unclear what elements must be pled to establish the claim and what proof is required for those elements. Despite this ambiguity in the law, the Supreme Court has not clarified this issue. This lack of clarity has resulted in a Ninth Circuit case being stuck in the complaint stage for four years. H&M and Malibu Textiles have spent the past four years litigating the issue of what is required in pleading copyright infringement claims. This case exemplifies the harm in a lack of a judicially establish pleading standard for copyright infringement claims. The Ninth Circuit decision in the H&M case lowers the pleading standard beyond what is established in Supreme Court precedent and argues that the Supreme Court decision not to review this case means that the law in this area will continue to be ambiguous.