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What are the components of "risk assessment?"

By Georgia Harper

I really enjoy reading Bill Patry's blog posts and encourage you to subscribe to his feed and visit as often as he posts. I don't think he misses a single copyright case (after all, he has to stay up on even the most arcane copyright decisions because he has to keep his multi-volume treatise up to date -- lucky for us). But to really appreciate why Bill's blog is such a fabulous resource, you only have to spend a fraction of the 20 years I've spent reading summaries of these same cases in the staid legal bulletins. Oh, yawn. Bill, amazingly, can make the most esoteric of cases interesting and even amusing, as he connects the dots for us to other issues, other cases, and infuses the whole exercise with his wit, wisdom and charm. And I never read a post without envisioning him in his outlandish tennis shoes, his sort of personal "mark of distinction" other than his incredible professional distinction. This morning's post is no different: The Patry Copyright Blog: Fold Your Cards and Go Home. A silly case that never should have made it to court at all, let alone to a full decision of the court. But that's what got me to thinking -- as is so often the case when I speak about fair use and other aspects of copyright law that involve risk assessment (that is, you can rarely be sure that you are right about your legal analysis, so your tolerance for ambiguity and risk has to be figured into your decision-making process), I always mention as one component the risk of actually being sued. After all, nearly every dispute is settled, most at the initial stage after a cease-and-desist letter arrives and the accused has the good sense to talk with a lawyer about it or google some basic legal information on the Internet (yes, you can do that) rather than just chunk the nearly unintelligible legalistic letter into the trash. But when I see cases like this one, it reminds me that lawsuits are not as remote a risk as I sometimes think. There are bull-headed plaintiffs and bull-headed defendants. One of them is right and one is wrong. Sometimes it's more obvious to the rest of us which one that should be; sometimes it's a really close call and the fight is worth it to clarify an important point. But sometimes it's just ridiculous. Usually, if it gets that far, there was an attorney involved who got in over her/his head. So maybe that's the key: if you are super-invested in your claim or your defense, at least do yourself the favor of getting an attorney who really knows the law and who won't just indulge you in ridiculous filings. Sober assessments by all parties, and their lawyers, will result in settlement for just about anything, most of the time, way before anyone actually files a single document.

Full post as published by ©ollectanea on March 03, 2008 (boomark / email).