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Re:Oracle wins appeal re Java API copyrightability [pdf] by rayiner on Friday May 09, 2014 @02:43PM (#7722595)
> What determines that approach? The way judge decides to do it in each case?

A fair use defense means that something happened that would otherwise create liability, but doesn't because of some (often policy) reason. Making something an affirmative defense has procedural implications. But "rights" can be implemented as affirmative defenses. For example, truth is an affirmative defense to defamation in the U.S., even though it's closely connected with free speech rights.

EDIT: But see dragonwriter's very pertinent comment about defamation cases involving matters of public concern, where falsity is an element of the claim rather than an affirmative defense.

The practical distinction is that it's easier to dispose of cases on a motion to dismiss when something is a required element of the claim versus when it is an affirmative defense.

Re:Oracle wins appeal re Java API copyrightability [pdf] by dragonwriter on Friday May 09, 2014 @03:01PM (#7722701)
> For example, truth is an affirmative defense to defamation in the U.S., even though it's closely connected with free speech rights.

This is wrong, at least on matters of public concern, specifically because it is connected to free speech rights, both for public figures and private figures as plaintiffs, who bear the burden of showing falsity rather than the defendant having the burden of showing truth.

See Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986); New York Times v. Sullivan, 376 U. S. 254 (1964).