I do transactional IP and I’m typically only ever on the receiving end of litigation – I like building things, not taxing other businesses – so I was a bit concerned by this.

Yes, I also do transactional work. This matter is certainly interesting to me, but it’s not of great practical importance.

107 is an affirmative defense

That’s a common misconception of section 107. It’s not a defense to infringement. Remember that section 106 states that the exclusive rights of copyright are “subject to sections 107 through 122,” and that section 107 itself states that “the fair use of a copyrighted work … is not an infringement of copyright.” Therefore it really strikes at the heart of the case. Actual defenses in copyright are rare, and I wonder if this is related to its nature as a strict liability statute; the closest are probably the ‘innocent infringer’ provision in section 504(c)(2), which merely goes to damages, and section 1008, which provides that making certain copies under the auspices of the Audio Home Recording Act are infringing, but are not actionable.

We just treat fair use as if it is an affirmative defense for most procedural matters, despite the lack of support for this in the statute, because there are no presumptions for or against fair use, and plaintiffs obviously aren’t the right parties to rely on for a complete exploration of it, or other potentially applicable exceptions to copyright.

I’d also point out that the safe harbors of 17 USC 512 and 47 USC 230 don’t stop determined litigants from filing, unfortunately. (And 230 doesn’t apply to copyright anyway) In practice, plaintiffs are expected to respect them well enough to not file suit to begin with; if they do, however, they’re also treated like defenses.

It’s bullshit, but that is how copyright law works as far as I can tell.

Yes, copyright enables a great deal of bullying, as it is currently written. It is really in desperate need of being rewritten from the ground up. Unfortunately Congress will surely only make it worse if they touch it, due to their complete lack of interest in the public good.

In a better world, I’d like to see a presumption of fair use in copyright, and part of the pleading would include not only an allegation that a use was not fair, but that it was also damaging – nonmonetary damage can be alleged as well, such as reputational or moral harm (as in moral rights, not morality in general), and I think this would be a far better system.

I don’t mind fair use not being presumptive (I think it better reflects the case-by-case, totally fact-dependent nature of fair use). I just think that where there is a patently obvious issue with the viability of a case (and as fair use goes to infringement, rather than merely excusing infringement, the viability of the case is at issue), plaintiff needs to at least address this a little bit in the pleading to comply with Rule 11.

Since this is an academic issue for me, I’m not going to do a lot of research on it, but there are apparently some cases on Rule 11 that found that sanctions were appropriate where attorneys failed to do basic legal research concerning limits and exceptions that undercut their causes of action (e.g. failing to notice the 11th Amendment, and failing to dismiss a party protected by it when notified of it, Hernandez, 197 F.3d 256; failing to notice exceptions in labor law which remove certain protections from the plaintiff, Galaso 310 F. Supp. 2d 569).

The main thing that came to mind though, despite it being a bit more of a stretch, was Lenz v. Universal, 572 F. Supp. 2d 1150 (the famous ‘children dancing to Prince’ case). There, plaintiffs admitted that they should consider fair use issues before filing suit, and the court went further and required consideration of fair use to be made before a section 512 takedown notice can be issued in good faith. I find it hard to believe that the standard for a takedown notice would be stricter than for a full-fledged federal lawsuit.

The lawyer at Higbee, if he really is going to recommend to the client that they sue, and he really does file, as the letter indicates, had better make some sort of decent argument in the complaint as to why it isn’t fair use, IMO. Otherwise he’s either accidentally or deliberately ignoring applicable caselaw as to whether an infringement has even occurred. It doesn’t have to be exhaustive at that stage, but I really don’t think it should go totally unmentioned.

And because it’s obvious that the plaintiff isn’t going to win, the suit won’t get filed, and Rule 11 will do its job by discouraging parties from filing suits that are a waste of the courts’ time.

As I said, I wouldn’t expect a court to actually sanction the Higbee attorney if the case were filed without any mention of fair use, but what mostly is offending me is the bad lawyering going on here. I still can’t get over that absolute statement, about “we will recommend filing.”