Editing Fair use (section)

=== Procedure and practice ===
The U.S. Supreme Court described fair use as an [[affirmative defense]] in ''[[Campbell v. Acuff-Rose Music, Inc.]]''<ref name="510 US 569" /> This means that in [[litigation]] on copyright infringement, the defendant bears the [[Legal burden of proof|burden of raising and proving]] that the use was fair and not an infringement.<ref>{{cite journal |last1=Snow |first1=Ned |title=Judges playing jury: constitutional conflicts in deciding fair use on summary judgment |journal=U.C. Davis Law Review |date=2010 |volume=44 |page=483}}</ref><ref>{{cite journal |last1=Reid |first1=Amanda |title=Deciding Fair Use |journal=Michigan State Law Review |date=2019 |volume=2019 |pages=601–649 |ssrn=3498352 |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3498352 |access-date=October 17, 2023 |archive-date=October 23, 2023 |archive-url=https://web.archive.org/web/20231023085755/https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3498352 |url-status=live }}</ref> Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a {{lang|la|[[prima facie]]}} case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work [[de minimis|borrowed only a small amount]], for instance, then the plaintiff cannot make out a {{lang|la|prima facie}} case of infringement, and the defendant need not even raise the fair use defense. In addition, fair use is only one of many limitations, exceptions, and defenses to copyright infringement. Thus, a {{lang|la|prima facie}} case can be defeated without relying on fair use. For instance, the [[Audio Home Recording Act]] establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use.<ref>See [[s:United States Code/Title 17/Chapter 10/Section 1008|USC October 17, 1008]], amended by the [[Audio Home Recording Act]].</ref>

Some copyright owners claim infringement even in circumstances where the fair use defense would likely succeed, in hopes that the user will refrain from the use rather than spending resources in their defense. [[Strategic lawsuit against public participation]] (SLAPP) cases that allege copyright infringement, patent infringement, defamation, or libel may come into conflict with the defendant's right to [[freedom of speech]], and that possibility has prompted some jurisdictions to pass anti-SLAPP legislation that raises the plaintiff's burdens and risk.

Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for ''any'' use of non-public domain material, even in situations where a fair use defense would likely succeed. The simple reason is that the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit, or having the mere possibility of a lawsuit threaten the publication of a work in which a publisher has invested significant resources.

Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.<ref>''Wall Data v. Los Angeles County Sheriff's Dept'' (9th Cir. May 17, 2006) ([http://www.ca9.uscourts.gov/datastore/opinions/2006/05/16/0356559.pdf PDF] {{Webarchive|url=https://web.archive.org/web/20101226181812/http://www.ca9.uscourts.gov/datastore/opinions/2006/05/16/0356559.pdf |date=December 26, 2010 }} at Ninth Circuit).</ref>

The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not considered infringing. For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it, is considered a fair use. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though they may sell their review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Fair use is decided on a case-by-case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status.<ref name=Unbundling />