Commercial Fair Use, Not An Oxymoron

Doc asks whether those acting in some kind of commercial capacity (he uses the example of commercial blogs) are carved out of the fair use doctrine just because someone says so (see Sec. 4a). Like just about all of Doc's questions, this is an interesting one on several fronts. While the commercial nature or purpose of a use is bound to be considered by a court deciding the issue, it's not fatal to a fair use finding. See, e.g., A Fair User's Manual and Summaries of Fair Use Cases. Perhaps more interestingly, can a Web site's non click-through terms of use enforceably restrict application of the fair use doctrine? I'm skeptical, but would enjoy hearing what others have to say about it.

By the way, I just noticed LexBlog is a sponsor of the Stanford University Libraries' Copyright and Fair Use site. Well done, Kevin!