The shifting of the burden of proof on the fair use issue is not a surprise. That would seem to bring it more in line with other case law I have read. It has always been my understanding that fair use is an affirmative defense, one that has to be proved.

Still, given Perfect 10′s recent history in the courts, I am stunned to see them win, well, anything. Still, it is an interesting case and one well worth following for bloggers. After all, any fair use issue directly applies to posting works on the Web.

First, as John Ottaviani noted in Eric’s blog when the case originally came down here

http://blog.ericgoldman.org/archives/2006/02/more_on_perfect.htm

this case was decided on an application for a preliminary injunction. The ruling therefore expresses the Court’s legal view based upon an incomplete factual record. In other words, it is not the last word but the first indication of the Court’s inclinations on the factual-legal issues addressed.

Second, the “new” opinion apparently changes ONLY the burden of proof on the ‘fair use’ defense in preliminary injunction hearings.

As Eric noted in this posting — 9th Circuit does 180 on fair use burden here

http://blog.ericgoldman.org/archives/2007/12/perfect_10_v_am.htm —

“in the original Ninth Circuit Perfect 10 v. Amazon ruling, the court put the burden on the plaintiff to disprove fair use as part of its P[reliminary]
I[njunction] obligations. Now, in an amended opinion, the Ninth Circuit has put the burden on the defendant to establish fair use to defeat
the P[reliminary] I[njunction].”

Eric writes that the opinion has not changed in any other way. Because I trust Eric and haven’t done a paragraph by paragraph analysis myself, I am assuming he is right.

I hopee that clears up any confusion inadvertently caused by my post cited here on Perfect 10.

And hey! Thanks for the weekly link list. It’s a great idea & very helpful.

Best, Vickie Pynchon

First, as John Ottaviani noted in Eric’s blog when the case originally came down here

http://blog.ericgoldman.org/archives/2006/02/mo…

this case was decided on an application for a preliminary injunction. The ruling therefore expresses the Court’s legal view based upon an incomplete factual record. In other words, it is not the last word but the first indication of the Court’s inclinations on the factual-legal issues addressed.

Second, the “new” opinion apparently changes ONLY the burden of proof on the ‘fair use’ defense in preliminary injunction hearings.

As Eric noted in this posting — 9th Circuit does 180 on fair use burden here

http://blog.ericgoldman.org/archives/2007/12/pe… —

“in the original Ninth Circuit Perfect 10 v. Amazon ruling, the court put the burden on the plaintiff to disprove fair use as part of its P[reliminary]
I[njunction] obligations. Now, in an amended opinion, the Ninth Circuit has put the burden on the defendant to establish fair use to defeat
the P[reliminary] I[njunction].”

Eric writes that the opinion has not changed in any other way. Because I trust Eric and haven’t done a paragraph by paragraph analysis myself, I am assuming he is right.

I hopee that clears up any confusion inadvertently caused by my post cited here on Perfect 10.

And hey! Thanks for the weekly link list. It’s a great idea & very helpful.

Best, Vickie Pynchon