Professor Eric Goldman has a post up at his Technology & Marketing Law Blog with an important update on Perfect 10 v. Amazon.com, which I blogged about last May. Specifically, the Ninth Circuit issued an amended opinion Monday that reverses itself on the issue of which party has the burden of proof on a fair use defense in a copyright preliminary injunction context. As Professor Goldman sums up:
In the original Ninth Circuit Perfect 10 v. Amazon ruling, the court put the burden on the plaintiff to disprove fair use as part of its PI obligations. Now, in an amended opinion, the Ninth Circuit has put the burden on the defendant to establish fair use to defeat the PI.
This doesn’t change the result. The injunction is still dissolved.
Professor Goldman’s post is well worth reading for anyone at all interested in cyber law. He explains how this is a continuation of the Ninth Circuit’s struggles with cyber law, that the significance of the issue extends beyond cyberspace, how the press gets the case wrong (shock!), and conveniently excerpts the relevant language from the original and amended opinions.