Abstract

http://ssrn.com/abstract=1340128
 
 

Footnotes (260)



 


 



Proving Fair Use: Burden of Proof as Burden of Speech


Ned Snow


Independent

February 9, 2009

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

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. 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

Accepted Paper Series





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)
Independent
No Address Available
Feedback to SSRN


Paper statistics
Abstract Views: 1,617
Downloads: 208
Download Rank: 85,757
Footnotes:  260

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.359 seconds