That list looks familiar. You may not like the list, but it's the list that Congress put in the law. The list isn't comprehensive, but it is law - statutory federal law.
Yes, I know what you were referring to. My dislike for the list has nothing to do with what is and isn't in it; I dislike it because it section 107 is worded in a rather confusing way, and it often trips people up.
What it actually says, rearranged for clarity is:
[T]he fair use of a copyrighted work
[To aid in the determination of] whether [a particular use] is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
[If the use is determined to be a fair use, by] consideration of all of the above factors[, it is irrelevant that the work] is unpublished.
[By implication, courts are free to also consider other factors to aid in the determination.]
[Although it is tautological to say it, fair use] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research[, is ultimately fair use, and thus not infringing as per the above. However, criticism, comment, news reporting, teaching, scholarship, and research which are not fair use, may be infringing.]
Thus, the list is bogus. It confuses people into wrongly thinking that the only uses which are fair are the ones on the list, and that if the use is on the list, it must be fair. Neither is true. They're just examples of things that might be fair use, or might not be fair use, depending on circumstances.
Unanimous SCOTUS opinion in Campbell vs Acuff-Rose "fair use is an affirmative defense".
And IIRC, that was not relevant to the case, which was actually about whether uses may be presumptively unfair, which the Court found was not so. Essentially it's dicta, and Harper & Row is even more so, as there was no mention of whether it was an affirmative defense until the opinion, and it too was not relevant to the case, which dealt with whether any of the uses on the list were presumptively fair, which the Court also found not to be so. In fact, I'd say that it's completely built on sand: The only mention of it being an affirmative defense comes from a cite to a 1967 House Report, which merely says that the pre-codification form of fair use was historically often raised as a defense. The report then goes on to say that it would be wrong to place the burden of proving fair use on either side, which directly undercuts the idea of it being an affirmative defense which must be raised by the defendant or else waived.
The better case to look at is Sony:
Moreover, the definition of exclusive rights in section 106 of the present Act is prefaced by the words "subject to sections 107 through 118." Those sections describe a variety of uses of copyrighted material that "are not infringements of copyright" "notwithstanding the provisions of section 106." The most pertinent in this case is section 107, the legislative endorsement of the doctrine of "fair use."
Indeed, the statute itself is the best support for the status of fair use as not being an affirmative defense: The grant of copyright itself in section 106 is limited in scope so as not to cover the territory taken out of copyright by section 107, among others. Although for reasons of judicial economy, there's no reason to even bother with fair use unless a prima facie infringement can be shown, the statute clearly states that fair uses cannot possibly be infringing, as the copyright just does not extend that far; there's no mention of whether it has to be shown or not. Hell, 17 USC 108(f)(4) actually refers to "the right of fair use as provided by section 107."
Happily, we're beginning to see some success in fixing the mistake perpatrated by Harper & Row and Campbell, with cases such as Lenz v. Universal Music. There's still a long way to go, but it's a start.
think you'll find that I don't shoot my mouth off without knowing what I'm talking about. When I say "the law is
Even SCOTUS gets the law wrong with alarming frequency. It's a bad idea to treat what they say as gospel, and even they know this. My favorite example is from Lawrence v. Texas, where they said of their previous decision in Bowers v. Hardwick, "Bowers was not correct when it was decided, and it is not correct today."