The Nielsen Co. (US), LLC v. Truck Ads, LLC, No. 08 C 6446, Slip Op. (N.D. Ill. Jan. 24, 2011) (Pallmeyer, J.).

Judge Pallmeyer granted plaintiff Nielsen's: 1) Fed. R. Civ. P. 12(b)(1) motion to dismiss defendant Truck Ads' declaratory judgment claim for lack of copyright infringement; and 2) Fed. R. Civ. P. 56 motion for summary judgment regarding Truck Ads' copyright misuse counterclaim in this copyright case regarding Nielsen's designated marketing area ("DMA") maps.

While the Court held that any copyright claim to raw census data would be "frivolous," that was not Nielsen's claim. Nielsen originally brought claims alleging infringement of its DMA regions and data, as well as the DMA maps. The current claims only accused infringement of the DMA maps. There was therefore, no case or controversy regarding the DMA regions or data. The Court also granted Nielsen summary judgment on Truck Ads' copyright misuse claim. First, the Court held that counts were split on whether copyright misuse was a proper counterclaim, or an affirmative defense. But the Court did not have to decide the issue because Truck Ads could not prove that Nielsen's claims were wholly lacking in merit. The DMA maps are original content that can warrant copyright protection, even though they may have been created based upon uncopyrighted data. And Nielsen's allegation that Truck Ads' alleged copying of the maps was unlawful was not frivolous, unsupported by law or clearly contradicted by record facts. Furthermore, Truck Ads offered no evidence that its alleged harm - a lost contract - was based upon Nielsen's accusations or its merit.