That case and that book

[dumbledore11214]

Alla:

> As long as case is not overturned, it is a good law and judge
> has an absolute right and well, even duty to follow it

CJ:
Hmm? Do you mean you're of the opinion that the "fictional facts"
distinction is actually a BINDING precedent? I can't see where it's 
been
used as precedent at all, let alone considered as binding.


Alla:

Here is the thing. Usually or often court will specifically say what 
part of the reasoning is holding of the case and what is dicta ( sort 
of secondary language, but also part of the reasoning of the case), 
but I do not believe that you can say that any PART of the case is 
separate precedent, the WHOLE case is a precedent. Does it make 
sense? Of course holding of the case is often more important and the 
case will be more often cited for that proposition, but I do not 
believe that anything stops the judge who is going to follow the case 
to use dicta as a precedent. It is not like dicta contradicts holding 
in this case in my opinion.

Of course it is easier to appeal the case if the precedent is used 
primarily for dicta language, but not necessarily.

So, what I am trying to say is that I believe that your expression " 
the "fictional facts"
distinction is actually a BINDING precedent" is not quite correct – 
the whole case is a binding precedent and PART of it certainly can be 
used as the law to be followed even if nobody used it after the case 
was decided.



CJ:
<SNIP>
OK, I'm searching for language here to distinguish between copying 
that
is permissible and copying that is not. Is it proper to refer to
permissible copying as "infringement", or is "infringement" reserved
specifically for impermissible copying? Perhaps, picking up on Carol,
"infringement" vs. "actionable infringement"?

If "infringement" is properly applied to permissible copying, then I
would agree with your above statement, since in that case,
acknowledgement of infringement is not tantamount to acknowledge of
guilt. But I'm assuming "infringement" specifically 
means "impermissible
copying". In that case, I'd highly doubt to hear defendants agreeing 
to
characterize their use as "infringing".


Alla:

I am not saying that defendants have to agree to characterize their 
use as infringement, I am saying that it is my understanding that 
even if plaintiffs proved the infringement, it can still be protected 
by fair use affirmative defense, but the burden to prove it will be 
solely upon defendants. (I mean, I am sure plaintiffs have rebuttal 
witnesses anyways, but theoretically if they decide, those 
hypothetical plaintiffs that defendant did not prove the defense, 
they do not have to put rebuttal witness on the stand.)

Of course defendants can choose to fight plaintiff's prima facie 
case. For example in my area of law all that plaintiffs have to prove 
is that they timely submitted the bill to the insurance company. That 
is it, this is their prima facie case. Now since some time medical 
necessity of the services became affirmative defense and therefore 
the burden is upon me to prove with sufficient particularity that 
services were not medically necessary.

So, here is what often happens during the trials we conduct ( and of 
course our trials may last couple hours so it is no comparison but 
principle is the same). Sometimes plaintiff and defendant will 
STIPULATE that both sides proved their prima facie case and the only 
issue at trial will be medical necessity. We choose to do it for 
various reasons, but one of them is because for the most part it is 
VERY EASY for plaintiff to prove their prima facie case and if I have 
no reasons to attack it, it will save time for everybody. 

Now of course sometimes when I have a reason to believe that I may 
poke holes in plaintiff's prima facie case, which is not happening 
too often, I will not stipulate, etc.

Of course I do not believe that anybody stipulated to plaintiff's 
prima facie case in this trial, but that does not mean that 
defendants rebutted it either.  

Does it make sense?

Lee:

Just for everyone's information, you may refer to me either as CJ or
Kaiwen. Lee is my Chinese surname which, in Chinese fashion, precedes 
my
given name, Kaiwen. CJ are my English initials (well, two out of five 
of
them, anyway).

And don't anyone even THINK about apologizing. I'm not in the least
offended :-)

CJ


Alla:

Eh, sorry? :)