Re: Re: Fair Dealing / Fair Use

If you don't have a good faith argument for overruling established precedent on some non-frivolous grounds, you can't make the claim without running afoul of Rule 11. That fact that a good lawyer can generally find such an argument does not change the rule that you need to have one. And if you blithely sue without one, you might enjoy the ride to the Supreme Court, but you will unhorsed in the end.

On Feb 20, 2006, at 6:15 PM, J. Noble wrote:

> 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
>
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-- 
Prof. Steven D. Jamar                                     vox:   
202-806-8017
Howard University School of Law                           fax:   
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2900 Van Ness Street NW                             
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"Nonviolence means avoiding not only external physical violence but  
also internal violence of spirit. You not only refuse to shoot a man,  
but you refuse to hate him."

Martin Luther King, Jr.