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9. Fair use
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As codified in 17 USCS § 107, fair use is an affirmative defense to copyright infringement, but its application is limited to "criticism, comment, news reporting, teaching . . . scholarship, or research." Courts have long struggled with the fair-use doctrine: "[R]igid application of the copyright statute . . . would [sometimes] stifle the very creativity which that law is designed to foster." (Campbell v. Acuff-Rose Music, Inc. (1994) 510 U.S. 569, 577, quoting Stewart v. Abend (1990) 495 U.S. 207, 236.)
Section 107 lists four nonexclusive criteria for determining fair use: 1) "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;" 2) "the nature of the copyrighted work;" (3) "the amount and substantiality of the portion used in relation to the copyrighted work as a whole;" and (4) "the effect of the use upon the potential market for or value of the copyrighted work." (17 USCS § 107.) Google contended that its use of the Java APIs was transformative and necessary because of Java's industry-standard status. The company also claimed that the Java APIs warrant only weak protection, and that the affect of Google's use of the APIs did not have a substantial "market impact" on Oracle. (Oracle America, Inc. v. Google Inc., supra, 750 F.3d 1339 at 1376.) The appellate court remanded on the fair-use issue, finding that the record lacked "sufficient factual findings upon which we could base a de novo assessment of Google's affirmative defense of fair use." (Id. at 1377.) 10. Copyright protections vs. patent protections for software |