just as favored by the law as the teacher who shows a film clip in class. The Supreme Court has recognized the importance of a vigorous defense of copyright exceptions, writing, “defendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement.”4 On the procedural question, it is true that courts treat a claim of fair use as if it were a defense, asking accused infringers to explain why their behavior is fair. But the implication that accused infringers will bear a heavy burden is unfounded. The law is clear that non-profit and educational uses are at the core of what fair use protects, citing “teaching (including multiple copies for classroom use), scholarship, or research,” as examples of legitimate fair use purposes. Recent scholarship supports the idea that non-profit educational uses would have a presumption in their favor. A fairly simple showing from the educational user could shift the burden back to the rights holder, who must then prove the use is not fair.5 “If a license is available, then your use ‘harms the market’ for that work and cannot be fair.” Rights holders often suggest that if they are willing to accept a license fee to permit a practice, then that practice cannot be fair use. It is true that “the effect of the use upon the potential market for or value of the copyrighted work” is one of the four factors in Section 107, but that factor is not decisive. Instead, the Supreme Court has required that it be weighed together with the other three factors “in light of the purposes of copyright.”6 In recent cases, courts have found the use of a work to be fair despite the existence of a licensing market.7 The DVR is again instructive, as it can record broadcast programming as well as make programs available “on demand” for a fee. Studios and programmers likely coordinate their schedules so that the same program is rarely, if ever, available through both channels, but it seems unlikely that such a coincidence would turn innocent time shifting into shameless piracy. Section 110 Legends While fair use has been the subject of misinformation for decades, Section 110 has also come in for some distortion in recent discussions. Here are two of the worst misstatements about Section 110. RLI 270 18 Urban Copyright Legends ( C O N T I N U E D ) JUNE 2010 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC
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