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
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Urban Copyright Legends
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C O N T I N U E D
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JUNE 2010 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC
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