Fair Use

I mention this briefly in the 312 copyright module- the nature of fair use is contentious. On the one hand, we have people stating with 100% certainty that fair use is an affirmative defense (that is, an argument that you must bring up to defend yourself against claims of copyright infringement.) On the other hand, there are many people who argue that fair use is not an affirmative defense, but a right. On the other other hand (aliens), we have people who argue that fair use is neither a defense nor a right. ^_^ Fun. Why does it matter? It matters because a) you change the importance of fair use depending on how you frame the argument, and b) it determines who has the burden of proof. The statute doesn’t say that fair use is a privilege or an affirmative defense. It says that fair use is not copyright infringement. And different courts treat fair use differently.

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