From Kevin Smith, Scholarly Communications Officer at Duke University:
It is very common to hear people say, in a discussion of copyright, that fair use is “an affirmative defense.” One of the amicus briefs filed in the Authors Guild’s appeal of the favorable fair use decision in their lawsuit against the HathiTrust, however, puts that common assertion into question and raises an argument worth considering. The brief . . . argues at some length that fair use is not and was not intended as an affirmative defense but is better viewed as a positive limitation on the rights held by a copyright owner. They argue, in short, that fair use is not so much a defense as it is a fence — a boundary that courts have built to prevent the exclusive rights in copyright from expanding too far.
. . . .
It is easy to see why fair use seems like an affirmative defense; the general assumption is that a defendant in a copyright infringement lawsuit admits, when raising fair use, that they were responsible for the use being challenged, but that that use was authorized by the law under section 107 of the Copyright Act.
. . . .
The “public relations” problem with this position is that talk about affirmative defense is often used to frighten potential users of copyrighted works away from their proposed use by telling them that if the copyright holder objects, they will have to “prove” fair use, which is difficult and expensive. The legal problem with maintaining that fair use is an affirmative defense is found in that word “prove” — the HathiTrust amici maintain that, because fair use is NOT an affirmative defense, the burden of proof shifts to the plaintiff, who should be required to prove that the use in question violates their rights.
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If fair use is an affirmative defense, the burden of proving those additional facts that would establish the defense falls on the defendant. She has to show that her otherwise infringing use was authorized by the law. But the HathiTrust amici argue that that is not how fair use works. They suggest, based on language in the statute, that fair use is about establishing the plaintiff’s right in the first place, so that the burden falls on that plaintiff to show that they have any right to prevent the particular use.
This is the difference between admitting the plaintiffs’ assertions and then arguing that there was a justification for the otherwise infringing activity versus denying that plaintiffs’ basic claim that they hold the right to object to the use in the first place. It is an argument that fair uses simply fall outside of the scope of the copyright holders authority in the first place, 0n the other side of a statutorily-defined “fence.” Then it becomes that copyright holders’ obligation to convince the court that their rights DO reach as far as they say they do.
Link to the rest at Scholarly Communications @ Duke and thanks to Matthew for the tip.