When it comes to copyright infringement claims, the Fair Use Doctrine is an important concept to understand. This doctrine is a legal defense that can be used to protect against claims of copyright infringement. It is based on the idea that certain uses of copyrighted material are permissible, even if they technically violate the copyright holder's exclusive rights. The courts will analyze whether the use is transformative when considering the purpose and nature of the use.
This means that if the allegedly infringing use adds a new expression, meaning or message to the original work, it may be considered fair use. For example, in the case of Google v. Oracle, the code that Google copied represented only 0.4% of the entire Java SE platform and was not substantial. On the other hand, in Harper & Row v.
Nation Enterprises, 300 words from a 200,000 word manuscript (0.15%) were considered important because the 300-word extract was the basis of the book. The extract was about former President Gerald Ford's reasoning for pardoning former President Richard Nixon, which was determined to be the crux of the book. As a result, The Nation magazine's publication of this extract was not considered fair use and likely harmed sales of the book. It is important to note that fair use is more of a refutation of an infringement claim than an affirmative defense that affirms some kind of privilege. In other words, not taking into account the Fair Use Doctrine before requesting a notice of removal of a work could result in a cross-lawsuit for not acting in good faith when filing the claim.
