Footnotes (260)



Proving Fair Use: Burden of Proof as Burden of Speech

Ned Snow

University of South Carolina

February 9, 2009

Cardozo Law Review, Vol. 31, No. 5, pp. 1781-1822, 2010

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. Today, copyright holders are exploiting the burden with Internet efficiency against individual fair users. This Article therefore proposes that the burden of proof should lie with copyright holders.

Number of Pages in PDF File: 42

Keywords: copyright, speech, fair use, First Amendment, burden of proof, internet

JEL Classification: K10, K13, K14, K19

Open PDF in Browser Download This Paper

Date posted: February 18, 2009 ; Last revised: June 1, 2010

Suggested Citation

Snow, Ned, Proving Fair Use: Burden of Proof as Burden of Speech (February 9, 2009). Cardozo Law Review, Vol. 31, No. 5, pp. 1781-1822, 2010. Available at SSRN: http://ssrn.com/abstract=1340128

Contact Information

Ned Snow (Contact Author)
University of South Carolina ( email )
Columbia, SC 29208
United States
(803) 777-8064 (Phone)
HOME PAGE: http://law.sc.edu/faculty/snow/
Feedback to SSRN

Paper statistics
Abstract Views: 1,840
Downloads: 232
Download Rank: 97,439
Footnotes:  260

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 0.188 seconds