Re: Web Sweep

On 7/22/98, Alfred C. Yen <yen[_at_]bc.edu> wrote:
>
> I agree that the adversary system and rules of civil procedure put the
> burden on a defendant to assert and prove fair use, since fair use is
> an affirmative defense. However, there's a difference between burdens
> of pleading and proof, and the ethics of asserting a claim to which a
> valid affirmative defense exists. The fact that a defendant is
> required to plead an affirmative defense does not relieve lawyers from
> taking defenses into account before deciding whether to assert a claim
> on behalf of a client. If there is no good faith basis for arguing
> that fair use does not apply, then it is very problematic for a lawyer
> to assert a claim of infringement.
>
> Thus, to answer the question posed, I do think it's unethical to take
> a position on behalf of a client which disregards *ANY* possible fair
> use defense (capital letter emphasis deliberate). Of course, lawyers
> will always disagree about what constitutes a good faith basis for
> arguing that fair use does not apply. Nevertheless, I believe that the
> ethical obligation to consider the existence of fair use is one that a
> lawyer cannot avoid.
>
> Indeed, if the legal profession takes the position that lawyers can act
> on behalf of copyright holders without regard for legal entitlements of
> users, then the profession has taken a very troubling step. As other
> posters on this thread have noted, the mere sending of a legal threat is
> often enough to make the recipient comply. People just don't want to be
> sued. Since laypersons are often not well informed about the extent of
> their fair use rights, they will frequently capitulate to demand
> letters that essentially ask for the forfeiture of legal rights. For
> me, this makes zealous advocacy the application of power without regard
> to law or justice. Lawyers wind up being paid to make irresponsible
> threats, and not responsible claims about the existence of legal
> rights. This is especially troubling given the connection between
> copyright and censorship because zealous advocacy could then become the
> imposition of unjustified censorship.
>
> Anyway, just my 2 cents worth. Cheers.

Alfred -

Thanks for a carefully thought out and well reasoned argument. I for one agree with much of what you've said, but here's the dillemma:

Client comes in with a complaint that someone is "using" his work (copyright material or business name/tradename/mark). Suppose I know that a fair use defense exists and will probably succeed, am I not still duty bound to put the user on notice of the Client's displeasure. I am after all, required to zealously represent MY client. If I don't take SOME action to enforce my client's rights, the doctrine of laches may prevent my client from making a later claim, even if this infringer expands his use...

What's more, other infringers may come to rely on my client's inaction in making their own laches defenses...

The way I see it, I have no choice but to send a letter. Though I suppose an offer to license the use might solve the laches problem.

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