Tuesday, July 29, 2014
Relationship Between Fair Use and Infringement
Where we're coming from ... Fair use is an affirmative defense and affirmative defenses allow a defendant to avoid liability even if the defendant committed the alleged acts. That's why a court usually won't consider fair use until after making a finding of infringement. As the folks at Chilling Effects put it, "Once the plaintiff has proven that his or her copyright was infringed upon, the burden lies with the defendant who invokes the fair use defense to prove that her or his use of the copyrighted work of another should be legally permitted ..."
That said dept. We stand corrected -- see comment below. Thanks Peter!