Re: Web Sweep

On 7/29/98, Cappone D'Angelo <cdangelo[_at_]pivotal.com> wrote:
>
> The Copyright Act expressly states that "the fair use of a copyrighted
> work ... is not an infringement of copyright." (107) The Act does not
> state merely that one cannot be liable for an infringement that
> constitutes fair use or that it is a defense where infringement is
> demonstrated, but that there is no infringement. Does case law exist
> that suggests otherwise? Is the burden not on the Plaintiff to prove
> Infringement? Although, once in court, there may be no obligation to
> raise the issue of fair use, it would seem that there could be no good
> faith belief of infringement if the activities are likely fair use.

Since fair use is an affirmative defense to a claim of infringement, the burden of proof is on its proponent. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994); American Geophysical Union v. Texaco, Inc. 60 F.3d 913, 918 (2d Cir. 1994) (party claiming fair use "typically carries the burden of proof as to all issues in the dispute").

John Noble
<jnoble[_at_]dgsys.com> Received on Thu Jul 30 1998 - 16:25:04 GMT