Re: Re: Fair Dealing / Fair Use

Section 107 says that fair use "is not an infringement of copyright."

Section 120 it says that "the copyright in an architectural work that has been constructed does not include the right to prevent the making . . . of . . . photographs if the building . . . is ordinarily visible from a public place."

So as I understand John, he is making a distinction for pleading and Rule 11 on these differences in phrasing.

I think that if a lawyer want to ignore defenses, the lawyer does so at his or her Rule 11 peril. Rule 11 requires that the claim be warranted under law. If there is a rock-solid defense, that a reasonable investigation would disclose, then the claim is not warranted under law. "Warranted" does not mean just having a formal prima facie case.

I have said nothing about improper purpose. One does not need an improper purpose to violate Rule 11.

Of course if you have a non-frivolous legal argument to avoid a defense, then you have changed the terms of my hypo and you win.

On Feb 14, 2006, at 5:54 PM, J. Noble wrote:

> At 4:25 PM -0500 2/14/06, Steven Jamar wrote:
>> 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.
>
> You assume there is no non-frivolous argument for limiting the
> scope of judicial immunity. You also assume that the plaintiff
> cannot insist that the defendant plead it; and that the defendant
> cannot waive it. I'd need a pretty good reason, or a helluva a
> retainer (reason enough), to go after a judge; but I could defend
> the complaint against a motion for sanctions. Affirmative defenses
> must be affirmatively pled, and are waived if they aren't. Your
> argument suggests that my frivolous claim might become non-
> frivolous if the defendant answers without pleading privilege
> (which might be a sound strategy if truth is his defense, and he
> ran for judge as a populist promising no favoritism for the
> "privileged"). I think it's other way around -- my claim is non-
> frivolous until the defendant pleads immunity. Then we can argue
> whether my opposition to a motion to dismiss is frivolous; but the
> filed complaint doesn't become frivolous, ab initio, upon the post
> hoc pleading of an affirmative defense, even if it's lock-solid.
> You wouldn't have volumes of caselaw holding that affirmative
> defenses, like the statute of limitations, are waived by the
> failure to plead them in the answer if the complaint violated Rule
> 11 when it was filed.
>
> In any event, my point was specific to the distinction between
> limitations on the scope of copyright protection, and privileges
> that trump the scope of copyright protection.
>
>> 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.
>
> But I do not have a prima facie case because it is sec. 120's
> explicit limitation on the scope of copyright protection, not the
> alleged infringer's privilege, that renders the complaint
> defective. If I haven't alleged, at least on information and
> belief, that you were trespassing when you took the picture, the
> complaint is subject to dismissal for failure to state a claim.
> Even in that event, you're not going to get sanctions unless you
> can show that I knew (or should have known) that the photograph was
> taken from a public place, but pretended I didn't for an improper
> purpose.
>
> John Noble
>

-- 
Prof. Steven D. Jamar                                 vox:  202-806-8017
Howard University School of Law                       fax:  202-806-8428
2900 Van Ness Street NW                         
mailto:stevenjamar[_at_]gmail.com
Washington, DC  20008      http://www.law.howard.edu/faculty/pages/jamar

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