colorable fair use defense and thus fails to prevail, it is not because
allegation through a showing of fair use is what makes the cause of
words, I am proposing that alleging an absence of fair use, that is, an
First, shifting the burden of proof with regard to fair use will result
common law emergence of the fair use test adds an additional moral
The speech-protective features of fair use are today all but forgotten as courts now view fair use as an exception to the norm of copyright monopoly.
This Article traces the history of fair use from a speech right that defined the contours of copyright to an exception that excuses infringement.
10) If subsequent expression incorporates another's prior expression in order to communicate an original idea, that subsequent expression constitutes a fair use of the prior expression, and so the law should protect it as speech.
Of course not every assertion of fair use raises uncertainty.
The reason for the uncertainty that surrounds questions of fair use is that the doctrine is intended to contemplate all circumstances that could possibly justify protecting a use from copyright's suppression.
Protecting fair use of digital content would simply involve tweaking,
copyright's fair use doctrine, which legally depends upon balancing
test established in the fair use statute does not specify the substance
Fair use is a deliberately vague exception to the monopoly
technological protection for fair use rights have evolved in unexpected