Proving Fair Use: Burden of Proof as Burden of Speech

42 Pages Posted: 18 Feb 2009 Last revised: 1 Jun 2010

See all articles by Ned Snow

Ned Snow

University of South Carolina

Date Written: February 9, 2009


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.

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

JEL Classification: K10, K13, K14, K19

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:

Ned Snow (Contact Author)

University of South Carolina ( email )

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