Question

if Passport had used the materials but not sold them for commercial benefit; would their argument of fair use then be justified?

Answer 1

Answer:

Fair Use: Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement. Like "fair dealing" rights that exist in most countries with a British legal history, the fair use right is a general exception that applies to all different kinds of uses with all types of works and turns on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work. The innovation of the fair use right in US law is that it applies to a list of purposes that is preceded by the opening clause "such as." This has allowed courts to apply it to technologies never envisioned in the original statute including Internet search, the VCR, and the reverse engineering of software.

The U.S. Supreme Court described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc. This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense. In addition, fair use is only one of many limitations, exceptions, and defenses to copyright infringement. Thus, a prima facie case can be defeated without relying on fair use. For instance, the Audio Home Recording Act establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use.

Some copyright owners claim infringement even in circumstances where the fair use defense would likely succeed, in hopes that the user will refrain from the use rather than spending resources in their defense. Strategic lawsuit against public participation (SLAPP) cases that allege copyright infringement, patent infringement, defamation, or libel may come into conflict with the defendant's right to freedom of speech, and that possibility has prompted some jurisdictions to pass anti-SLAPP legislation that raises the plaintiff's burdens and risk.