Re: Re: Fair Dealing / Fair Use

I'm not saying that the lawyer can "ignore defenses." I am saying that the lawyer doesn't have to anticipate and evaluate affirmative defenses before he files a complaint that survives a 12(b)(6) motion and is, perforce, non-frivolous. I'm also not saying that you need an improper purpose to violate Rule 11; but if you don't have an improper purpose, you do need a filing that violates the Rule 11 certification that it is warranted by law. If you have "formal prima facie case" -- i.e. a claim that cannot be dismissed, on the face of the complaint, pursuant to Rule 12(b)(6) for failure to state a claim -- then it is, ipso facto, warranted by law.

The difference between the 107 privilege and the 120 limitation is more than "phrasing," although the phrasing is significant -- "fair use ... is not an infringement" (a privilege) vs. "copyright ... does not include" (a limitation). The significance of the phrasing is that a plaintiff doesn't have to plead, in his allegation of facts in support of the infringement claim, that the alleged copying is "not fair use" because that is a legal conclusion, not a fact. A plaintiff does have to plead that the building the defendant photographed is "not ordinarily visible from a public place" because that is a fact necessary to state a claim. The contours of fair use are uncertain and subjective, while the visibility of the building from a public place is definitive and objective. You can't be sanctioned for failing to plead the negative of a legal conclusion. You can be sanctioned for failing to plead the elements of the claim.

I'm not changing the hypo by positing a "non-frivolous legal argument to avoid a defense" when the defense, like fair use, is treated as an affirmative defense. When you file the complaint, you always have a non-frivolous argument to avoid an affirmative defense -- even if the only argument is waiver because it hasn't been pled yet. When the affirmative defense is fair use, the non-frivolous arguments go well beyond waiver unless the fair use is so obvious and incontrovertible that the complaint can only have been filed for an improper purpose.

Consider the issue from the perspective of a default judgment:

1. The unanswered complaint claims infringement on allegations that a) the plaintiff owned the copyright in the building as a protected work, and b) the building was photographed without authorization. You don't get a default judgment because the complaint doesn't allege that the building isn't ordinarily visible from a public place. And filing the complaint might be a violation of Rule 11 if the building is visible from a public place and the attorney knew it or failed to look into it.
2. The unanswered complaint claims infringement on allegations that a) the plaintiff owned the copyright in the building as a protected work, b) the building was photographed without authorization, and c) the building is not ordinarily visible from a public place. Here, you do get a default judgment because you've alleged all the facts necessary to state a claim. The photograph is still obviously a fair use if the photograph was taken by an arson investigator; and the defendant might even persuade the judge to vacate the default judgment on a showing of excusable neglect; but the judgment might also stand on the ground that the defense was waived. Whether or not the judgment is vacated, the complaint doesn't violate Rule 11 unless, although non-frivolous as evidenced by the sustainable judgment, it was filed for an improper purpose, e.g. to thwart an arson investigation.

Rule 11 is not a roving license to evaluate the merits, ex ante. You can have a non-frivolous pleading that is sanctionable because it was (deviously) filed for an improper purpose. You can have a frivolous pleading that is sanctionable even though it was (negligently) filed for a proper purpose. What you can't have is a claim that is non-frivolous on its face, and (strategically) filed for a proper purpose, that becomes sanctionable when it turns out to be meritless after the defendant raises a meritorious defense, particularly when the meritorious defense is an elective affirmative defense. In practice, nothing is more important than a "formal prima facie case" in the application of Rule 11 to a complaint. Unless you start with a supposedly "liberal" agenda -- like the discouragement of copyright infringement claims -- the "conservative" construction of Rule 11 serves the goal of providing "liberal" access to the courts. When Roe sued Wade, she had a claim that was "warranted by law" -- "a formal prima facie case" claiming the denial of due process -- notwithstanding the obvious defense that might have rendered her claim meritless: there was then no due process right to an abortion. You can't use Rule 11 to create barriers to the recognition and enforcement of intellectual property rights unless you are prepared to throw up those same barriers against the recognition and enforcement of substantive due process rights. The liberal application of Rule 11 is inherently illiberal.

John Noble

At 11:25 AM -0500 2/15/06, Steven Jamar wrote:
>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>mailto:stevenjamar[_at_]gmail.com
>
>Washington, DC 20008
><http://www.law.howard.edu/faculty/pages/jamar>http://www.law.howard.edu/faculty/pages/jamar
>
>
>Lay not up for yourselves treasures upon earth, where moth and rust
>doth corrupt, and where thieves break through and steal; but lay up
>for yourselves treasures in heaven, where neither moth nor rust doth
>corrupt, and where thieves do not break through nor steal. For where
>your treasure is, there will your heart be also.
>
>
>Matthew 6:19-21
Received on Thu Feb 16 2006 - 22:10:01 GMT