Re: Re: Fair Dealing / Fair Use

At 4:20 PM -0500 2/16/06, Terry Carroll wrote:
>I'm not sure I follow this entire conversation exactly, but let me pose a
>hypothetical: A movie studio sues a consumer who uses a VCR to record a
>broadcast television show for the purpose of watching it at a more
>convenient time. The movie studio is not in any way related to Universal
>City Studios or any other plaintiff in Sony v. Universal, so there are no
>res judicata issues.
>
>The Supreme Court, in Sony v. Universal, has already found that this
>activity is a fair use. It's settled law.
>
>Would the movie studio not be liable for Rule 11 sactions?
>

A couple of years ago, the Supreme Court was asked to overrule Miranda. The Court refused, but the opinion revealed Miranda's torturous reasoning in the discovery of a constitutional basis for its prophylactic rule to assure the informed waiver of the right to counsel during custodial interrogations. I'm not sure exactly how it got there, but somebody, somewhere, had the gall to tell a trial court that the failure to give the Miranda warning wasn't fatal to the admissibility of a confession. The issue is seldom presented in as stark a fashion as your hypothetical -- a singular decision by the highest court in the land that is directly on point. A sound legal strategy, not to mention the progress of events, calls for a flanking attack, e.g. Grokster. Indeed, I initially thought that the plaintiffs' claim in Grokster, and surely Universal was among them, was foreclosed by the "substantial non-infringing use" doctrine. But I don't want to weasel. If we agree that the Supreme Court has the authority to overrule its decision in Sony, and that you can't get there without starting in a trial court, then the answer to be found in the distinction between frivolous and sysiphean. But go ahead and order sanctions -- I'll ride that ruling to the Supreme Court.

John Noble Received on Tue Feb 21 2006 - 04:15:47 GMT