Fair use is a defense against copyright violations. If you are deemed not to have a copyright violation to begin with, you do not need to use fair use as a defense.
But this is arguing semantics, the problematic word being copyright violation. It goes against my intuition (and I suspect I'm not alone) to say that a violation of copyright has taken place when a usage is legal within the rules instituted by copyright.
I suppose people who associate a different set of semantics with copyright violation would have to talk about legal copyright violation versus illegal copyright violation. To me, the former is contradicting and the latter is a tautology.
Yes semantics, but in law there is an established convention with reference to these particular semantics. The term "infringement" refers to, in this context, whether or not there was copying. Fair use is a defense, wherein even if infringement is established, liability is not established if the copying isn't the sort that should establish liability.
> I suppose people who associate a different set of semantics with copyright violation would have to talk about legal copyright violation versus illegal copyright violation. To me, the former is contradicting and the latter is a tautology.
That's because the headline using terminology imprecisely. It is using "ruled" when it means "found" (juries find facts, judges make rulings); it is using "violation" when it means "infringement."
rgoddard seems to be implying that all copying of a copyrighted work is illegal, which simply isn't the case. His claim is analogous to claiming that driving at any speed is in violation of the speed limit, but if you driving under the posted limit you can use that as a defense in court.
> This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement. [emphasis mine]
Just like in a murder trial where the defendant clearly killed the victim, the defendant must prove that he or she acted in self-defense. That doesn't mean that self-defense is murder.
Fair use is an affirmative defense, which means that even if a violation occurred in a strict sense, that violation is excusable. It's not an "I didn't do it" argument, it's an "I shouldn't be punished because..." argument. Self-defense is a textbook example of an affirmative defense -- strictly speaking, I would violate the law by intentionally injuring or killing someone, but I can argue that I was defending myself.
The question of an affirmative defense is not even relevant until there is a prima facie case showing violation, and often the fact-finder (jury or, in a bench trial, the judge) will actually find all the facts necessary for a judgement that infringement occurred before addressing the question of fair use, partly because the answers to many questions of fact for infringement are relevant to whether "fair use" holds.
In the end, you do end up with a judgement that no infringement occurred, but along the way, you often end up with findings of fact that do spell out a "violation".
You did a good job, but I'd be interested to see how important details like this are thoroughly explained to a jury that's actually making a decision like this.
http://www.groklaw.net/article.php?story=20120430075018880
The instructions themselves look like they'd be tens of pages of text printed out. (And note that the people deciding this are specifically chosen for their lack of background in the technologies involved --- IIRC, two candidate jurors with software experience were excused, for that very reason.)
One candidate was an HP employee and Oracle objected on the ground that Oracle has a separate suit with HP. When asked of opinions about patents, the other candidate said he has his strong opinion about patents. I mean, we all do... But I think objections were justified.
Don't you agree that if you think software patents should be abolished, you should not be a juror in a software patent case?