John McCain–or rather his lawyers–have responded to Jackson Browne’s lawsuit against McCain, the Republican National Committee and the Ohio Republican Party over the use of  nine seconds of the song "Running on Empty" in a YouTube video made by the ORP.  McCain’s attorneys are asking that the suit be dismissed without prejudice.

According to the legal documents obtained by TMZ McCain claims the use of Browne’s song which "was released over thirty years ago" is protected under the Fair Use Doctrine:

Given the political, non-commercial, public interest and  transformative nature of the use of a long-ago published Song, the miniscule amount  used and the lack of any effect on the market for the Song (other than perhaps to increase sales of the Song), these claims are barred by the fair use doctrine. 

McCain then goes on to say that Browne actually benefited from the use of "Running on Empty":

Browne then leveraged the attention and notoriety generated by filing an action against a candidate for President of the United States to enable Browne to hit the “campaign” trail as well – the campaign to promote Browne and his new album “Time The Conqueror.” Since filing this action, Browne has appeared on numerous television programs (including  The Colbert Report and The Tonight Show with Jay Leno) and has given numerous interviews, discussing both this lawsuit and his new album.

McCain’s best reason to dismiss the lawsuit comes from the Sgt. Schultz  playbook. McCain knew nuttin’:

The Political Video was produced with no input or involvement whatsoever by McCain (who, again, was sued in his personal, individual capacity). Indeed, McCain was not even aware of the Political Video until he was informed of its existence in connection with preparing a declaration for this Motion…

McCain did not make a use of Browne’s voice because McCain had nothing to do with the Political Video. As set forth above, McCain played no part in the creation or dissemination of the Political Video and was not even aware of its existence until days before this Motion was filed.