Really a negation of the actual copying element of

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Really a negation of the ‘actual copying’ element of the plaintiff’s claim License to use Statute of limitations – 3 years damages max Fair Use (17 USC 107) It's an affirmative defense. ‘An equitable rule of reason’ (from Sony , 464 US 417) If reasonably fair, then D not liable Functions as a way to harmonize copyright law with our First Amendment right to freedom of speech Mixed question of law and fact
INTELLETUAL PROPERTY Favored types of uses listed in the statute: ‘criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research’ Further excerpt from section 107 o In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: The purpose and character of the use , including whether such use is of a commercial nature or is for nonprofit education purposes; o Here, courts mainly consider whether the use is commercial (which weighs against fair use) and whether it is transformative (weighs in favor) o A transformative” is essentially one that gives a new meaning to a work or uses it to communicate a new message o Any use that is commercial and non-transformative is likely not a fair use The nature of the copyrighted work ; o Fictional/highly creative v. factual works The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and o Quantitative and qualitative analysis (of both works) The effect of the use upon the potential market for or value of the copyrighted work o Market both for original and existing potentialderivative works (except the market for what type of work?) o “traditional, reasonable, or likely to be developed markets” The first & fourth factors typically weigh most heavily in courts’ analysis Parody v. satire Discussed in Campbell v. Acuff-Rose and often a focus in subsequent cases Satire generally not fair use Parody generally fair use Remedies Damages (actual damages/profits v. statutory damages) Injunctive relief (preliminary and, most importantly, permanent) Patent American Invents Act of 2011 (AIA) What was the biggest change from prior federal patent law? o Changes from a first-to-invent system to a first inventor-to-disclose/file system So, for patent applications on or after March 16, 2013, what law applies?
INTELLETUAL PROPERTY o The first inventor-to-disclose/file system For patent applications filed prior to that, what? o So for a time (approximately 25 years or more) we’ll need to know aspects of the law before and after the AIA Three big Requirements Novelty (new) o Strict identity rule: A piece of prior art (aka a previously disclosed invention) must be strictly identical as to each element of the subject invention in order to defeat novelty (I.e., make the invention non-novel) If prior art defeats novelty, it’s called ‘anticipatory.’ o General rule for AIA novelty To be novel, an invention cannot have previously been: Patented Publicly used Described in a printed publication On sale

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