Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 30 of 47
The parties disagree about who bears the burden of showing the effect Defendant’s republication has on the potential market for or value of Plaintiffs’ standards. The Supreme Court has applied the burden differently depending on whether the challenged use is commercial or non-commercial. When a case involves commercial use, there is a presumption that some meaningful “likelihood of future harm … exists,” and the Court has held that the defendant must rebut that presumption of market effect. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984) (“If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.”); see also Campbell, 510 U.S. at 590–91 (holding that, because fair use is an affirmative defense, “its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets,” and that a silent record on the fourth factor “disentitled the proponent of the defense” to summary judgment).
On the other hand, when a defendant uses the copyrighted work for noncommercial purposes, the Court has placed the burden on the plaintiff to show “by a preponderance of the evidence that some meaningful likelihood of future harm exists.” See Sony Corp., 464 U.S. at 451; see also Fox Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060, 1069 (9th Cir. 2014) (finding fourth factor weighed in favor of fair use where challenged use was for noncommercial purpose and the plaintiff failed to show likelihood of market harm); Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381, 1385 (6th Cir. 1996) (“The burden of proof as to market effect rests with the copyright holder if the challenged use is of a ‘noncommercial’ nature.”); Ass’n of Am. Med. Colls. v. Cuomo, 928 F.2d 519, 526 (2d Cir. 1991) (Mahoney, J., concurring) (“Because [plaintiff] is challenging noncommercial use by the state, [plaintiff] has
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