Re: Web Sweep

On 7/25/98, Alfred C. Yen <yen[_at_]bc.edu> wrote:
>
> The dilemma you pose is an interesting one, and one that I suspect
> lawyers face often. I have a couple of ideas to add.
>
> First, I agree that a lawyer is required to zealously represent his or
> her client, but only "within the bounds of the law" (I think this is
> the language used in one of the DRs). Thus once again, a key factor in
> how to proceed is whether there is a "good faith" belief that fair use
> doesn't apply, even if the probabilities are less that 50/50. If there
> is a "good faith" belief, then there's no dilemma. Just send the
> letter. If there isn't such a belief, then I don't think it's right to
> send a letter claiming that the recipient of the letter is committing
> infringement. Difficult as it is, I believe lawyers should sometimes
> say that they won't do things, even if the client desires it, because
> it's unethical.

I turn away business every day for the reasons you mention. I referred to a colorable claim and a "possible" fair use defense...

> Second, it may be that one can send letters that take care of the
> laches problem without asserting that infringement is taking place or
> requesting a license fee when none is owed. Might not the letter say
> that "my client is aware of your use, and although the use is not
> infringement, other uses you may contemplate might be infringement"?
> Such a letter might go on to ask that if other uses are contemplated,
> to please contact the lawyer or client to see if a rights fee is
> required.

Except that the use IS COPYRIGHT INFRINGEMENT, it just happens to be a legally defensible infringement. It's not my job to assert defenses on behalf of opposing parties. If the infringer gets my letter, consults a lawyer, and then tells me "I'm not going to stop, because I beleive my use is a "Fair Use"", then I'd probably respond with a letter "carving out" the use and "authorizing" it, but warning against expanding the use, etc...

That's what I meant by the adversary system...

   GORDON P. FIREMARK
   The Business Affairs Group - Entertainment Law    800 S. Robertson Blvd., Suite 5
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   (310) 360-0365

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