Klarinet Archive - Posting 000117.txt from 2009/02

From: Jonathan Cohler <cohler@-----.org>
Subj: Re: [kl] Derivative Works
Date: Thu, 05 Feb 2009 23:23:13 -0500

At 3:11 PM -0600 2/5/09, Michael Nichols wrote:
> > But since "bright line rule" is such an imprecise term itself, perhaps what
>> you mean by it is any rule of which you think you understand the sole and
>> perfect interpretation. Then these would be bright line rules for you but
>> not for someone else who disagrees with your interpretation (and who might
> > be a judge or juror).
>
>Which "you" are you referring to? Me or the Supreme Court? It's
>their terminology. (You didn't read the case I cited you, did you?)

I initially read the summary, which doesn't mention "bright line
rules". But now I have read the whole case. And the court's meaning
in context is very clear. What you wrote is not clear. And you should
have put the "bright-line rule" in quotes, since it is a jargon term
meaningful in a specific context.

What they meant is single simple rules that can be individually and
independently applied to decide the case.

Deciding fair use is determined according to Section 107 by weighing
the four factors, none of which individually can determine the result.

> >> In other words, if someone copies copyrighted material, it is
>>> *presumed* that the copying is NOT fair use.
>>
>> WRONG. Show me a case. Or a law that says this.
>>
>
>I did. You either didn't read it or didn't understand it.

The case does not say this.

> >> The defendant has to
> >> prove that it IS fair use.
> >
> > WRONG. Not unless the plaintiff proves that there is infringement, which
>> would include evidence that it is NOT fair use.
>
>No, it wouldn't, necessarily. Fair use is an affirmative defense. An
>affirmative defense is a type of defense in which the defendant seeks
>to avoid liability by introducing new evidence NOT addressed in the
>claims of the plaintiff's complaint.

The law says that fair use is allowed. The law gives an outline of
how fair use is determined by weighing four factors. The defense
(obviously) will present its evidence as to what type of fair use it
claims, and the plaintiff will attempt to rebut that. So what's your
point?

> >> That doesn't change the fact that the
>>> plaintiff has the burden of proving ownership of a valid copyright and
>>> copying of protected material (i.e., making a prima facie case).
>>
>> Proving these two facts is not anywhere near sufficient to prove a copyright
>> violation.
>
>How do you know? What else do you have to prove that isn't subsumed
>within those two elements? Show me a case.

Same case. Many factors involved. Read the law.

> >> Since courts *presume*
>>> that unauthorized copying of copyrighted material is NOT fair use,
>>> unless a defendant proves to them otherwise, that makes fair use a
>>> difficult doctrine to rely on in court.
>>
>> WRONG. Show me where in the law (or in any case) it says what you are
>> claiming above.
>
>I already did. Campbell v. Acuff-Rose says "fair use is an
>affirmative defense," clear as day. Such a defense must be raised in
>the defendant's answer, and because affirmative defenses require the
>assertion of facts beyond those claimed by the plaintiff, the
>defendant has the burden of proof for the defense.

Yes, Campbell v. Acuff-Rose says "fair use is an affirmative defense"
citing Harper & Row, Publishers, Inc., et al. v. Nation Enterprises
et al. 471 U.S. 539. So what? That does not mean that courts "presume
that unauthorized copying of copyrighted material is NOT fair use".
It just means that the defense has to present a case. And nowhere
does either case mention such a presumption.

--
Jonathan Cohler
Artistic & General Director
International Woodwind Festival
http://iwwf.org/
cohler@-----.org

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