No, all the answer does is deny the copyright violation. Any good litigator would have done so, since admitting the truth of this allegation means Huckabee loses immediately.
No, it doesn't. If Huckabee had an iron clad affirmative defence... say fair use... then he could admit the copyright violation in full and still win the case, because a successful affirmative defence trumps the violation. If he was simply relying on the affirmative defences then he wouldn't deny the copyright violation; he'd say there was one but that it was legally justified under fair use, de minimis, religious assembly and/or no commercial advantage. That's how affirmative defences work; they only come into play once the court is satisfied a violation has taken place to begin with.
A successful fair use defence works on the basis that there was
a copyright violation but that it was fair use in the same way that a claim of self-defence against an assault claim works on the basis that there was
an assault but that it was legally allowed because of self-defence; while all the elements of the original crime may have been satisfied a successful self-defence argument defeats them. It's the difference between affirmative and negating defences (which is why I set out the position on them); negating defences work by establishing that no crime or violation took place because the requirements for it weren't satisfied, affirmative defences work by stating that while the requirements for the crime or violation have been satisfied there is a further matter that legally protects the defendant/respondent.
If Huckabee's side weren't disputing that there was a copyright violation to begin with then they'd have accepted it in that section and simply moved straight on to their affirmative defences. They didn't; they dispute there was a copyright violation at all and only afterwards argue that if there was they have additional defences to rely on.
Look at the factual allegations made on page 7. If Huckabee had a license, he would have alleged it there. There is no reason not to, since it means he wins automatically.
Those are setting out the facts they base their affirmative defences on. Having a blanket ASCAP liscence isn't part of the affirmative defences, it's part of the negating ones as it attacks whether there was unauthorized public performance to begin with. Sticking it in that section would at best get a slight rebuke from the court and at worst lead to the court demanding they refile their defence entirely (or even striking it out).
Indeed, if he had such a license, his lawyer would have responded with a 12B6 motion instead of an answer. You only answer if you have no viable legal defense that can be mounted at the outset.
I have no idea where you're getting the 12B6 thing from. A 12B6 relates to a plaintiff failing to state a claim upon which relief can be granted and that simply isn't the case here. In practical terms 12B6's are very rarely granted if the plaintiff has put even a smidgen of effort into their pleading (basically included any facts at all rather than just restate the law) and even in technical terms it wouldn't apply; Rude Music have clearly stated a factual basis for the claim and it's a claim upon which relief can be granted. 12B6's aren't used to settle factual arguments (such as whether there was a license or not), they're used when the plaintiff hasn't presented enough of a case to begin with. Moreover, even if there is a license there are still claims that Rude Music could make which I mentioned earlier in the thread (false endorsement under the Lanham Act for example). Now, as I also set out earlier I think those claims range between the weak and the laughable but they are
claims upon which relief can be granted.
It is obvious Huckabee does not have a license.
Why is it obvious? If Huckabee's campaign (the people being sued here) didn't have an ASCAP license then every song he played at every event would also be liable for legal action and ASCAP themselves would probably have got involved at the blatant breach of their rights. Has any of that happened? Has anyone else sued Huckabee this election cycle over his unauthorised use of their songs at his events? Hell, have any of the other groups who had their music played at the same rally taken legal action?
You may feel the lawsuit has no merit but attorneys from major U.S. IP law firms think otherwise: Dykema, Proskauer.
Both of these (and the second one just recounts the facts and gives some context rather than offering legal analysis) base any judgement on the fact that Huckabee didn't have a license from ASCAP. If he doesn't have a license then I likely agree with them; I don't think a fair use claim is likely justified, too much of the song was used for de minimis to apply (and the courts have tightened up on what that protects over recent years), despite the religious imagery and references I don't see how the rally can be seen as a religious assembly and while the no commercial advantage side has slightly stronger legs it still strikes me as having a couple of key weaknesses.
But at this point I'm not willing to accept that Huckabee's campaign didn't have a license and I've seen absolutely no evidence to suggest they didn't (remembering that it falls upon the plaintiff to prove that part). And if they did have a license then their case is far stronger than Rude Music's.