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Issue: Should plaintiff's bear the burden of rebutting fair use in their case in chief?
I'd like to start by saying I hope any readers have had a great Thanksgiving and I'm sorry its been so long seen I posted, the holidays can be hectic, especially if you have law school finals.
I believe fair use is the most important aspect of American Copyright law because it is really meant to achieve the purpose of copyright law which is to promote the progress of science and the useful arts. Which is not to say that other aspects of copyright law do not promote science and the useful arts but fair use is an important balance to the economic incentives given to copyright holders and the right of others to communicate freely.
Doug posed an interesting thesis that rebutting fair use should be an aspect of a prima facie case for copyright infringement. I disagree mostly for procedural reasons. Lawsuits start with a plaintiff filing a complaint and then the defendant filing an answer. Then there can be a motion for a judgment on the pleading if it is clear that no real case exists. (or in some rare debt collection cases I believe a plaintiff can win on judgment on the pleadings.) Requiring plaintiffs to rebut a case for fair use in their pleading before discovery would frustrate the doctrine of fair use because fair use is a fact intensive doctrine. Judges need to have a strong grasp on all relevant facts in order to determine whether a use is fair or not. Forcing plaintiffs to allege that fair use is not possible before the plaintiffs have had an opportunity to go through discovery would result in good cases being thrown out because plaintiffs' attorney were unable to obtain all the facts through the procedural process.
As to whether the plaintiff should bear a greater burden to rebut a defense of fair use at trial is an irrelevant issue. The Doctrine of fair use is a four factor balancing test. If a defendant raises the defense in the defendant's answer, then at trial the defendant will argue for the factors they believe favor fair use and the plaintiffs argue for the factors they believe will rebut fair use. Essentially I don't think a shift in the burden would do much unless Doug is arguing to change from the balancing test to something else entirely different. I just do not see the need for change because fair use adequately balances copyright owners economic incentives with everyone's first amendment right to free speech.
