Re: Re: Fair Dealing / Fair Use

From: Steven Jamar <stevenjamar[_at_]gmail.com>
Date: Tue, 14 Feb 2006 16:25:30 -0500

Yes, I disagree. Rule 11 can be violated by bringing frivolous lawsuits -- and if there is a clear defense, then the suit is frivolous. If I were to sue a judge for slander, but the judge made the comment while on the bench and in the course of his duties, he is immune and no matter how perfect my prima facie case, I lose and I violate Rule 11.

>

> In my opinion, although I gather Prof. Jamar disagrees, the
> distinction also goes a long way toward determining the
> availability of Rule 11 sanctions for filing a frivolous complaint.
> In fact, it should be almost impossible to get nailed with
> sanctions on the complaint if you truthfully allege ownership of a
> valid copyright and unauthorized copying by the defendant. Even
> after the defendant answers, raises the fair use defense, and the
> motion to dismiss is converted to a motion for summary judgment
> before it's granted, the complaint doesn't violate 11(b)(2)-(4) if
> it states a claim. You might be able to conjure an example of an
> unauthorized use that is so patently protected by the anticipated
> fair use defense (e.g. a book review that quotes a paragraph from a
> 200-page novel) that the claim can be sanctioned as vexatious under
> Rule 11(b)(1).

Yep. Or other sorts of claims that are subject to a privilege, such as taking a picture of a building from a public place. I made a copy. You have a copyright. That is a prima facie case. That is not enough for Rule 11. The claim is not warranted by law or fact.

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

"Love the pitcher less and the water more."

Sufi Saying

Received on Wed Feb 15 2006 - 02:25:30 GMT