Lydia Pallas Loren is a founding member of Authors Alliance and a law professor at Lewis & Clark Law School in Portland, Oregon. Her recent article Fair Use: An Affirmative Defense? appears in the University of Washington Law Review.

Larry Lessig once famously declared, “[F]air use in America simply means the right to hire a lawyer….” That view of fair use seems to accept that fair use is a defense to a claim of infringement and seems to suggest that the burden of proving a use is fair lies with that user. The Supreme Court in its 1994 fair use decision in Campbell v. Acuff-Rose Music, Inc. once spoke of fair use as an affirmative defense. But is that really the right way to view this critically important limit on copyrights?

In civil litigation in the United States, it matters who bears the burden of proof: the copyright claimant or the possible fair user? Calling fair use an affirmative defense places the burden squarely on the defendant. But that is not how the doctrine of fair use was originally conceived. In the case that is most often credited as the fountainhead of the fair use doctrine, Folsom v. Marsh, Justice Story did not cast his inquiry as one based on a “defense”; rather, the factor-based evaluation that we now call fair use was the central inquiry into whether the defendant’s use invaded the copyright owner’s rights. Justice Story described the evaluation of the quantity of copying as “the real hinge of the whole controversy, and involves the entire merits of the suit.” He did not view the inquiry into the magnitude of the copying, the reasons for it, or the harm to the plaintiff’s market as anything other than the central question of infringement.In codifying the fair use doctrine in the 1976 Copyright Act, Congress also did not set up fair use as an affirmative defense. The rights granted to copyright owners in section 106 are expressly “subject to” the fair use defense. And, the fair use section of the Act, section 107, provides expressly that fair use “is not an infringement of copyright.” It is not that an infringement exists, which is then excused if the defendant shows the use was fair; rather there is no infringement to begin with. In Sony Corp. of Am. v. Universal City Studios, Inc., the Supreme Court embraced this view of fair use: “anyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.”

In Lenz v. Universal (the “dancing baby”) case, the Ninth Circuit recently acknowledged this view of fair use in a critically important context: take-down notices sent to on-line service providers. First, the court noted that fair use is “distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse.” What followed from that view of fair use is the understanding that “fair use is ‘authorized by the law’ and a copyright holder must consider the existence of fair use before sending a takedown notification….” The result of understanding fair use in this way is that if a copyright holder fails to consider fair use before sending a takedown notification, the copyright owner is liable for damages suffered as a result of an erroneous take-down.

We all know that fair use provides the critical breathing space to comment on, criticize, build on, and transform others’ works. Understanding fair use as a non-infringing use of copyrighted expression rather than as an infringement that is being excused as a defense, helps to constrain overreaching takedown requests and reinforces the importance of reasonable limits on copyright owners’ rights. Fair use is, indeed, far more than a defense to infringement.

Would it be better to view fair use as a right? Courts in the U.S. have not yet gone as far as to say that fair use is a user right, but 20 years ago, in a case called Bateman v. Mnemonics, Judge Birch of the Eleventh Circuit noted his belief that fair use is better seen as a right than simply as an affirmative defense. Congress also refers to “the right of fair use” in the statutory section concerning libraries and archives. See § 108(f)(4).