Re: Re: Fair Dealing / Fair Use

The burden is still always on the plaintiff to prove infringement (i.e., not fair use) by a preponderance of the evidence. The burden on the defendant is really more a burden of production. Because the test is a balancing test, and none of the fair use factors are determinative, definitively measured, or even exclusive, you can't ask the plaintiff to prove that a use isn't fair under any and every elaboration of the rule. The defendant has unique incentive and access to the evidence, and might have a new fair use rationale (eg. satire) that you can't expect the plaintiff to invent and rebut. You'd end up with cases on appeal where the plaintiff failed to meet a burden that he didn't know he had, on a claim that the defendant didn't waive because it wasn't his burden to prove it. One exception I've seen has the burden shifting back to the plaintiff on the fourth factor -- the effect of the use upon the potential market for or value of the copyrighted work. Otherwise, the defendant would be called on to prove the negative, setting up straw men and knocking them down, without any evidence of, or interest in discovering, the plan or potential for the commercial exploitation of plaintiff's copyright; and without the numbers needed to prove lost profits.

John Noble

At 6:50 PM -0500 2/8/06, Lalpdx1[_at_]aol.com wrote:
>I came across this string rather late, but perhaps the following
>will help re the "user right" vs "statutory defense" and "burden of
>proof" issues: Fair use of copyrighted material might well be
>considered a user "right." After all, the language of 17 USC 107
>specifically states that "*** the fair use of a copyrighted work ***
>is not an infringement of copyright." This seems to imply that the
>burden of showing that a use is not "fair" should be on the
>plaintiff. However, in essentially all cases, courts have placed the
>burden of proof (that a particular use of a copyrighted work is
>indeed fair use) on the defendant. At least as a practical matter,
>therefore, fair use can be considered an affirmative defense to
>claims of copyright infringement, with the alleged infringer bearing
>the burden of proof. This likely is based in history and legislative
>intent. Although the fair use doctrine was first codified as Section
>107 in 1976, the doctrine had long been recognized by courts as a
>legitimate part of infringement analysis. Not wishing to disturb
>perhaps a century of jurisprudence on the doctrine, or the way in
>which courts treated assertions of fair use, Section 107 was
>intentionally left cryptic, as a sort of restatement of existing
>case law, with further refinement and interpretation again left up
>to the courts. A potentially helpful and very informative article on
>fair use is "A Pattern-Oriented Approach to Fair Use," 45 Wm. & Mary
>L. Rev. 1525 (see text beginning at 1549) March 2004.
>
>Lawrence Locke
>Portland, Oregon
Received on Fri Feb 10 2006 - 22:00:00 GMT