Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden with Internet efficiency against individual fair users. This Article therefore proposes that the burden of proof should lie with copyright holders.
Ned Snow, Proving Fair Use: Burden of Proof as Burden of Speech, 31 Cardozo L. Rev. 1781 (2010).