Ned Snow (University of Arkansas at Fayetteville – School of Law) has posted Proving Fair Use: Burden of Proof as Burden of Speech on SSRN. Here is the abstract:
Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair use burden of proof is repugnant to the fair use purpose. Adding to this repugnancy is the fact that the burden is the product of a mistake. For over a century, courts recognized that speakers of fair use expression should not bear this burden. Then modern courts mistakenly interpreted fair use as excusing, rather than defining, infringement, and as a result, they placed the burden on the party seeking to invoke the excuse. The mistaken nature of this interpretation becomes apparent when examining the jurisprudence that gave birth to fair use and the statute that governs its present application: both indicate that the burden should lie with rights-holders rather than fair users. Today, the misplaced burden of proof exacts a high cost of speech: rights-holders are exploiting the burden with internet efficiency against individual fair users. This Article therefore proposes that the burden of proof should once again lie with rights-holders.