Klarinet Archive - Posting 000083.txt from 2009/02

From: Michael Nichols <mrn.clarinet@-----.com>
Subj: Re: [kl] Derivative Works
Date: Wed, 04 Feb 2009 15:15:47 -0500

On Mon, Feb 2, 2009 at 6:21 PM, Jonathan Cohler <cohler@-----.org> wrote:
> At 3:58 PM -0600 2/2/09, Michael Nichols wrote:

> Sorry, but that is a meaningless statement. Every case is decided on a
> "case-by-case" basis. There are no "bright-line" rules anywhere in the law,
> or we wouldn't need courts then would we?

Of course there are bright-line rules in the law. Statutes of
limitation are a good example--wait too long to sue and you lose your
ability to do so. Most of what courts do is hear evidence, from which
they make factual conclusions. Most courtroom battles (at least at
the trial court level) are about what the facts are, not about
interpretation of law. Even if there is a bright-line rule, there can
be (and often is) contention over what the facts are.

> So as I said, prima facie or not, in ALL cases in the United States of
> America, the plaintiff must prove their case first. NOT the other way
> around. No exceptions. None. Zip. Zilch. That's just the way we designed
> our jurisprudence in this country. Law 101. Sorry.

I never said the plaintiff doesn't have to prove their case first.
What I said was that "fair use" is an affirmative defense, which means
that the defendant has the burden of proving "fair use" once the
plaintiff has proven the elements of infringement (which are ownership
of a valid copyright and copying of the copyrighted material).

In other words, if someone copies copyrighted material, it is
*presumed* that the copying is NOT fair use. The defendant has to
prove that it IS fair use. That doesn't change the fact that the
plaintiff has the burden of proving ownership of a valid copyright and
copying of protected material (i.e., making a prima facie case).

By the way, I wasn't trying to argue that what you were decribing
*wasn't* fair use--I was simply commenting on the lamentable fact that
it is often quite difficult to say with certainty whether something is
or isn't fair use. Judicial precedent is the best guidance as to what
uses are fair, but we only have judicial precedent where there is a
published decision dealing with the topic. That means that not only
did there have to be a case dealing with analogous circumstances, but
there had to be an opinion written (this doesn't always happen in the
case of trial courts) and the opinion had to be published (not all
cases are published--in fact, most aren't). Since courts *presume*
that unauthorized copying of copyrighted material is NOT fair use,
unless a defendant proves to them otherwise, that makes fair use a
difficult doctrine to rely on in court.

Of course, the reality is that, in many cases, it's not worth the
expense and hassle to file suit. Still, it's a little bit
discomforting to rely on others' being rationale economic beings to
avoid having to defend a lawsuit. That's why it's usually best to err
on the side of caution in these sorts of things.

> Using fancy words like "prima facie" to obfuscate doesn't change reality.

I wasn't trying to confuse you. It's just one of those basic legal
terms every American law student learns in the first year of law
school (or "Law 101," as you say), along with "affirmative defense."
Since you seem to have a lot of confidence in your knowledge of
American jurisprudence, I assumed you'd know what I meant. But if you
haven't been to law school (and taken "Law 101"), I can understand
your not being familiar with that terminology.

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