(1)
Whether fair use is a right of authors, thus placing the burden on plaintiffs to prove that fair use does not apply on defendants who assert that they made fair use of the allegedly infringed works.

(2)
Whether the copyright holder bears the burden of proving the effect of the use upon the potential market for the copyrighted work, as the Second, Fourth and Eleventh Circuits have held, or whether the alleged infringer bears the burden, as the Ninth Circuit, in the decision below, has held.

Whether fair use is a right of authors, thus placing the burden on plaintiffs to prove that fair use does not apply on defendants who assert that they made fair use of the allegedly infringed works