> Again in my experience it is unusual to find, in borderline cases, any
> professional adviser willing to offer unequivocal advice. Perhaps I am
> being unduly cynical, but legal advice can be a very expensive source of
> equivocation.
Even in borderline cases good lawyers should not equivocate (I'll explain one case where I do below). Good lawyers will be familiar with, or become familiar with, case law close or relevant to the factual scenario, and provide a range of risks, outcomes and courses of action. If you turn out to be wrong, depending on the lawyer and the level of advice, you can avoid liability for a claim of willfulness by obtaining the opinion of the lawyer (and depending on the facts and the potential claim, failure to go to a lawyer and obtain advice can be evidence of bad faith or willfulness). Even if the answer truly is "50/50" on a question, there are many ways to use copyright law to achieve a particular result without having to conclude a particular activity is fair or not.
I am with Bob Cumbow that I have given more free or pro bono advice (pro bono referring to advice to a person who could not afford to pay) to individual authors (mostly artists and musicians) than for which I have charged.
One example where I *do* equivocate is when a client insists on drafting license language and does not follow my advice about clearly defining or limiting Sec. 106 rights, or refuses to use proper licensing language (or where a client asks for advice on a clearly non-lawyer drafted license clause). In these cases if a client asks for definitive guidance on a hypo (and most of them are on whether a licensee would have a right to copyright a derivative work), I often refuse to give a straight answer - because often the language is so confusing that my advice that "there really is no clear answer" is actually correct.
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