Re: Re: fourth fair use factor - burden of proof

On Oct 31, 2006, at 8:55 AM, <jrfriedman[_at_]litproplaw.com> <jrfriedman[_at_]litproplaw.com> wrote:

> I also am aware that if one is relying on a fair use defense, one
> is conceding that one has committed infringement.

Please accept my apology for inserting a fork in the discussion, as your comment was clearly intended to lay a foundation for clarifying your original inquiry and not as a substantive statement, but I can't resist taking issue with it nonetheless.

First, one can plead in the alternative, so no concession on infringement need be made.

Second, both Section 107 and 106 make clear (at least to me) that use of the "fair use defense" is in reality only a procedural defense, and not a substantive one. That is, the only reason it is called a "defense" is because the one raising it happens to be the defendant. (Put another way, if the copyright owner were capable of placing a prior restraint on my fair use of a work, I would have a cause of action as a fair use plaintiff, but in reality those facts just don't seem to arise.) Substantively, however, the copyright itself does not extend to fair use. (Section 106: "Subject to sections 107-122 ..." authors are granted certain rights.) The very rights granted are all "subject to" -- inferior to -- fair use. Section 107 takes it one step further by declaring that fair use is not infringement.

We might have been better served if case law had developed along the lines of making clear that, once "fair use" is placed in issue with prima facie evidence, it is the plaintiff who should have the burden of proving that its Section 106 rights extend to include conduct that the defendant has, prima facie, established to be fair use. (Moreover, given that fair use has been interpreted as accommodating First Amendment requirements, one would think that keeping the burden of proof on the suppressor of speech might be even greater importance than in an instance of, say, Section 110(7) in-store promotional playing.)

John Received on Wed Nov 01 2006 - 23:50:00 GMT