Re: Re: Fair Dealing / Fair Use

If there wasn't a non-frivolous argument for overturning Sony, the Ninth Circuit wouldn't have ordered the district court to enter judgment for Universal, the Supreme Court wouldn't have found it necessary to order re-argument "since we had not completed our study of the case last Term," and Sony wouldn't have squeaked out a victory on a 5-4 vote. It's easy to look back and wonder how it could be otherwise, but if I can point to the opinion of four Supreme Court Justices, including Rehnquist and Marshall (I wonder if they were ever before or ever again on the same side of a 5-4 ruling), the only lawyer getting sanctioned is the one who calls their dissent frivolous. It's ridiculous to think that anybody wants to overturn Sony and wipe out a market that hasn't done anything except make the loser more money than the winner, but the legal argument wasn't and isn't frivolous. If the 5-4 ruling in Sony came out the other way 22 years ago, would you think it frivolous to argue for overturning it today?

Moreover, it's seldom so simple as overrule or re-affirm; it's almost always sufficient to distinguish; and as often as not, it's impossible to tell the difference. Did Grokster overturn Sony when it disregarded substantial non-infringing uses, or did it merely distinguish substantial non-infringing uses that are overwhelmed by actual infringing uses? Or did it turn on the difference between the speculative damages of lost advertising revenues and the somewhat less speculative damages of lost record sale revenues? Personally, I think the real significance of Grokster is that you can't profit indirectly from the infringing use at the copyright owner's expense, which is about as close as you can get to overruling Sony. And the only thing keeping TiVo from adding a feature that automatically skips commercials is the fear that it would cost them the Sony defense that time-shifting is fair use because the only thing standing between VCR fair use under Sony and DVR infringement under Grokster is the manual fast-forward button that inflicts the damages.

If there's anything that suggests a non-frivolous argument, it's that it went all the way to the Supreme Court the last time. You might get sanctioned if you asked a district court to overrule Marbury v. Madison, but you could even appeal that on grounds of humorlessness.

John Noble

At 5:40 PM -0500 2/21/06, Steven Jamar wrote:
>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
>>
>>#############################################################
>>This message is sent to you because you are subscribed to
>> the mailing list <<mailto:CNI-COPYRIGHT[_at_]cni.org>CNI-COPYRIGHT[_at_]cni.org>.
>>To unsubscribe, E-mail to:
>><<mailto:CNI-COPYRIGHT-off[_at_]cni.org>CNI-COPYRIGHT-off[_at_]cni.org>
>>To switch to the DIGEST mode, E-mail to
>><<mailto:CNI-COPYRIGHT-digest[_at_]cni.org>CNI-COPYRIGHT-digest[_at_]cni.org>
>>To switch to the INDEX mode, E-mail to
>><<mailto:CNI-COPYRIGHT-index[_at_]cni.org>CNI-COPYRIGHT-index[_at_]cni.org>
>>To postpone your subscription, E-mail to
>><<mailto:CNI-COPYRIGHT-null[_at_]cni.org>CNI-COPYRIGHT-null[_at_]cni.org>
>>To resume mail list message delivery from postpone mode, E-mail to
>><<mailto:CNI-COPYRIGHT-feed[_at_]cni.org>CNI-COPYRIGHT-feed[_at_]cni.org>
>>Send administrative queries to
>><<mailto:CNI-COPYRIGHT-request[_at_]cni.org>CNI-COPYRIGHT-request[_at_]cni.org>
>>
>>Visit the CNI-COPYRIGHT e-mail list archive at
>><<https://mail2.cni.org/Lists/CNI-COPYRIGHT/>https://mail2.cni.org/Lists/CNI-COPYRIGHT/>.
>>
>
>--
>
>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
>
>
>"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.
Received on Thu Feb 23 2006 - 03:05:01 GMT