4 ms·

>First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. Th

>First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. That's in contrast to ordinary defenses or arguments around the facts asserted by the plaintiff, where it's up to the plaintiff to prove them to whatever the required standard of evidence is. This is a misnomer. Fair use is an authorized use, and consequently is “distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright.” Id. Lenz, 815 F.3d at 1152

xoa 7y ago
>This is a misnomer. No, I don't think so. Fair Use isn't merely a matter of court precedent, it specifically is in the Copyright Act (17 U.S. Code § 107 [1]), the language of which indicates it's on the plaintiff, and subsequent case law does seem to have affirmed that unless you have something further to cite? What you cited right there was Lenz v. Universal Music Corp, a 9th Circuit decision about abuse of DMCA takedowns, and in turn considering the "under penalty of perjury" aspect of the DMCA not "Fair Use" as a defense in general. The quote you gave was in the context of §512, Judge Tallman wrote that §512 "unambiguously contemplates fair use as a use authorized by the law". But again that's specific to the DMCA, and even there while the 9th seemed to want to try stemming abuse a bit, they only required the plaintiff to show a purely subjective lack of belief in infringement. Which could be without any real consideration of fair use factors at all. As well as being circuit only, analysis at the time indicated that if anything it might encourage copyright holders specifically to do as little as possible to consider fair use. Lenz did appeal to SCOTUS on that question but certiorari was not granted. Harvard Law had a fairly in-depth looking analysis [2]. In contrast for the 9th Circuit specifically in Perfect 10 v. Amazon/A9.com/Google [3] they explicitly covered Fair Use as an affirmative defense where the burden was on the plaintiffs: >C. Fair Use Defense >Because Perfect 10 has succeeded in showing it would prevail in its prima facie case that Google’s thumbnail images infringe Perfect 10’s display rights, the burden shifts to Google to show that it will likely succeed in establishing an affirmative defense. Google contends that its use of thumbnails is a fair use of the images and therefore does not constitute an infringement of Perfect 10’s copyright. See 17 U.S.C. § 107. Additionally, I can find modern SCOTUS opinions such as in Campbell v. Acuff-Rose Music which support Fair Use as an affirmative defense: >The fair use factors thus reinforce the importance of keeping the definition of parody within proper limits. More than arguable parodic content should be required to deem a would-be parody a fair use. Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist. It'd be nice if plaintiffs were required to demonstrate as part of a suit that there was not a fair use defense for the defendants, but I really don't think that's the case nationally right now. ---- 1: https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107 2: https://harvardlawreview.org/2016/06/lenz-v-universal-music-corp/ https://harvardlawreview.org/2016/06/lenz-v-universal-music-... 3: http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/0655405.pdf http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/06...
- gnopgnip 7y ago
  I understood the Perfect 10 case to be decided not on the merits and on a pretrial motion, and that the standard for fair use is not the same. Almost certainly the plaintiff will make a prima facie case, and an affirmative defense is needed then only on the pre trial motion. If the case went to trial the statutory text(arguably)does not require it to be raised as an affirmative defense. I agree that Campbell v. Acuff-Rose Music supports it as an affirmative defense, but it is not the most modern case law even though it is the only modern supreme court case. Mattel v Walking Mountain Productions in the 2nd did not use fair use as an affirmative defense. Cariou v Prince, also in the 9th and denied certiorari is a modern case that did not depend on fair use as an affirmative defense. In the appeal they did question whether fair use is an affirmative defense specifically. Would you say that congress intended fair use to be an affirmative defense?

xoa 7y ago

>This is a misnomer. No, I don't think so. Fair Use isn't merely a matter of court precedent, it specifically is in the Copyright Act (17 U.S. Code § 107 [1]), the language of which indicates it's on the plaintiff, and subsequent case law does seem to have affirmed that unless you have something further to cite? What you cited right there was Lenz v. Universal Music Corp, a 9th Circuit decision about abuse of DMCA takedowns, and in turn considering the "under penalty of perjury" aspect of the DMCA not "Fair Use" as a defense in general. The quote you gave was in the context of §512, Judge Tallman wrote that §512 "unambiguously contemplates fair use as a use authorized by the law". But again that's specific to the DMCA, and even there while the 9th seemed to want to try stemming abuse a bit, they only required the plaintiff to show a purely subjective lack of belief in infringement. Which could be without any real consideration of fair use factors at all. As well as being circuit only, analysis at the time indicated that if anything it might encourage copyright holders specifically to do as little as possible to consider fair use. Lenz did appeal to SCOTUS on that question but certiorari was not granted. Harvard Law had a fairly in-depth looking analysis [2]. In contrast for the 9th Circuit specifically in Perfect 10 v. Amazon/A9.com/Google [3] they explicitly covered Fair Use as an affirmative defense where the burden was on the plaintiffs: >C. Fair Use Defense >Because Perfect 10 has succeeded in showing it would prevail in its prima facie case that Google’s thumbnail images infringe Perfect 10’s display rights, the burden shifts to Google to show that it will likely succeed in establishing an affirmative defense. Google contends that its use of thumbnails is a fair use of the images and therefore does not constitute an infringement of Perfect 10’s copyright. See 17 U.S.C. § 107. Additionally, I can find modern SCOTUS opinions such as in Campbell v. Acuff-Rose Music which support Fair Use as an affirmative defense: >The fair use factors thus reinforce the importance of keeping the definition of parody within proper limits. More than arguable parodic content should be required to deem a would-be parody a fair use. Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist. It'd be nice if plaintiffs were required to demonstrate as part of a suit that there was not a fair use defense for the defendants, but I really don't think that's the case nationally right now. ---- 1: https://www.law.cornell.edu/uscode/text/17/107 https://www.law.cornell.edu/uscode/text/17/107 2: https://harvardlawreview.org/2016/06/lenz-v-universal-music-corp/ https://harvardlawreview.org/2016/06/lenz-v-universal-music-... 3: http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/0655405.pdf http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/06...

gnopgnip 7y ago
I understood the Perfect 10 case to be decided not on the merits and on a pretrial motion, and that the standard for fair use is not the same. Almost certainly the plaintiff will make a prima facie case, and an affirmative defense is needed then only on the pre trial motion. If the case went to trial the statutory text(arguably)does not require it to be raised as an affirmative defense. I agree that Campbell v. Acuff-Rose Music supports it as an affirmative defense, but it is not the most modern case law even though it is the only modern supreme court case. Mattel v Walking Mountain Productions in the 2nd did not use fair use as an affirmative defense. Cariou v Prince, also in the 9th and denied certiorari is a modern case that did not depend on fair use as an affirmative defense. In the appeal they did question whether fair use is an affirmative defense specifically. Would you say that congress intended fair use to be an affirmative defense?