Quote:
Originally Posted by ApK
Being a producer of some protected IP and having had the need in the past to discuss the matter with IP lawyers, I'm quite familiar with that citation.
That section of the law does not define fair use. It neither allows nor prohibits any particular use as fair use. It states that there are fair use exceptions, lists some general areas where fair use may apply, and lists some of the factors in deciding IF a use is fair use.
Whether a given use constitutes fair use is decided by the courts, not by that law.
And, as that very citation indicates, profit--any commercial impact-- is merely one of the factors to be considered, certainly not "the big determinate."
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As a multiple patent holder and having worked through various issues with the DoJ when I worked for the government. What you posted is wrong on a variety of levels.
One, your basic statement that "Whether a given use constitutes fair use is decided by the courts, not by that law." is fundamentally wrong. The court exists to enforce the law, the law specifies whether something is legal or not. The court cannot "decide" something in contradiction of the law. It can strike down a law if it is in violation of another law. In this instance it is merely enforcing another law.
Two, the profit motive is the big determinate as reinforced by the various court rulings, including the supreme court. They also tend to list the stipulations with the big ones first. The profit motive is the first consideration in the fair use law. They also semi redundantly cover it again in the last one, whether it impacts the market for the work. So it's "big" enough that they state it multiple times.