Re: Re: Fair Dealing / Fair Use

I disagree, though I think our disagreement is more narrow than it seemed at first. I think an attorney does need to take into account affirmative defenses under Rule 11. John does not think the attorney needs to.

As to the example of Roe v. Wade: one can always argue for an extension or revision of the law without violating Rule 11.

I agree that in almost every fair use case a plaintiff's attorney can concoct an argument that will be non-frivolous that the use was not fair. But not in all instances.

And I certainly hope that courts do not start policing copyright claims with Rule 11 to the same extent they did in slapping civil rights cases out of court with Rule 11 penalties some years ago.

On 2/16/06, J. Noble <jfnbl[_at_]earthlink.com> wrote:
>
> 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.
>

--
Prof. Steven Jamar
Howard University School of Law