It is very common to hear people say, in a discussion of copyright, that fair use is “an affirmative defense.” One of the amicus briefs filed in the Authors Guild’s appeal of the favorable fair use decision in their lawsuit against the HathiTrust, however, puts that common assertion into question and raises an argument worth considering. The brief on behalf of the HathiTrust that was filed by a group of universities (Illinois, Michigan State, Minnesota, Nebraska, Northwestern, Penn State and Purdue) argues at some length that fair use is not and was not intended as an affirmative defense but is better viewed as a positive limitation on the rights held by a copyright owner. They argue, in short, that fair use is not so much a defense as it is a fence — a boundary that courts have built to prevent the exclusive rights in copyright from expanding too far. (Hat tip to Jack Bernard of the University of Michigan, who pointed this argument out to me but is not, of course, responsible for what I make of it).
To understand this argument, and to see what difference it makes, let’s start by defining an affirmative defense. Black’s Law Dictionary tells us that an affirmative defense is “an assertion by a defendant that raises new facts and arguments that defeat the plaintiff’s claim even if all of the allegations in the complaint are true.” When one raises an affirmative defense, one basically says that “even if I did exactly what the plaintiff says I did, I should be excused because of these additional reasons which justify my actions.” Self-defense is a classic affirmative defense, as is duress. In the latter case, for example, someone charged with writing a fraudulent check might say “yes, I signed that check knowing it was a fraud, but at the time I was being threatened at gunpoint if I did not do so (i.e., I was under duress).”
It is easy to see why fair use seems like an affirmative defense; the general assumption is that a defendant in a copyright infringement lawsuit admits, when raising fair use, that they were responsible for the use being challenged, but that that use was authorized by the law under section 107 of the Copyright Act. Well-known copyright scholar William Patry takes exactly this position in a 2005 blog post, although he also adumbrates the argument that the amici universities are making in the HathiTrust brief.
The “public relations” problem with this position is that talk about affirmative defense is often used to frighten potential users of copyrighted works away from their proposed use by telling them that if the copyright holder objects, they will have to “prove” fair use, which is difficult and expensive. The legal problem with maintaining that fair use is an affirmative defense is found in that word “prove” — the HathiTrust amici maintain that, because fair use is NOT an affirmative defense, the burden of proof shifts to the plaintiff, who should be required to prove that the use in question violates their rights.
Burden of proof is very important in most litigation. We all know that in a criminal trial, it is the state which must prove “beyond a reasonable doubt” that the defendant committed the offense. In a copyright infringement case, which is usually a civil trial rather than a criminal one, the standard of proof is lower — usually infringement must be proved by “a preponderance of the evidence.” Here is how the jury instructions for the federal courts in the Ninth Circuit describes this requirement:
the plaintiff contends that the defendant has infringed the plaintiff’s copyright. The plaintiff has the burden of proving by a preponderance of the evidence that the plaintiff is the owner of the copyright and that the defendant copied original elements of the copyrighted work. Preponderance of the evidence means that you must be persuaded by the evidence that it is more probably true than not true that the copyrighted work was infringed.
If fair use is an affirmative defense, the burden of proving those additional facts that would establish the defense falls on the defendant. She has to show that her otherwise infringing use was authorized by the law. But the HathiTrust amici argue that that is not how fair use works. They suggest, based on language in the statute, that fair use is about establishing the plaintiff’s right in the first place, so that the burden falls on that plaintiff to show that they have any right to prevent the particular use.
This is the difference between admitting the plaintiffs’ assertions and then arguing that there was a justification for the otherwise infringing activity versus denying that plaintiffs’ basic claim that they hold the right to object to the use in the first place. It is an argument that fair uses simply fall outside of the scope of the copyright holders authority in the first place, 0n the other side of a statutorily-defined “fence.” Then it becomes that copyright holders’ obligation to convince the court that their rights DO reach as far as they say they do.
As I said, the HathiTrust amici assert that the language of the copyright law supports this argument. The section that enumerates the exclusive rights in copyright is immediately followed by a series of limitations on those rights, and fair use is the first of these limits. The fair use provision says that a fair use “is not an infringement,” “notwithstanding” the rights granted just one section earlier. This sounds like the scope and extent of the rights are being defined. And just one more section later the law refers to “the right of fair use,” language that further suggests that fair use is much more than a defense. Indeed, it looks like Congress was telling us that fair use is a positive right, the existence of which defines the inherent limits of the rights given to copyright holders.
By the way, this perspective is also useful in thinking about the publisher arguments in the GSU lawsuit. The publishers’ reply brief in that case, about which I wrote a couple of weeks ago, asserts that those who claim fair use have”the burden of demonstrating the limited nature of the unauthorized use.” Not only is there no such requirement about fair uses being “limited” in the legislative or judicial definition of fair use, but this assertion potentially gets the burden of proof wrong. It is the plaintiff publishers, according to this perspective, who must show that the use in question is not fair use and therefore that they are entitled to assert any control over it.