In the United States' written responses to the first set of questions posed by the European Commission, we explained why the doctrine of fair use complies with Berne Article 9(2) and TRIPS Article 13. Please see our answer to the Commission's question 1.
As to the two cases referred to in Australia's question:
In Sega Enterprises v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992), the court applied the doctrine of fair use to the specific facts of the case before it. As explained in our discussion of fair use generally, courts are required to balance several factors in light of all the facts and circumstances. The Sega court did exactly that. This narrow holding based on the particular facts in the case is a defensible judgement for the purposes of the exceptions permitted under the TRIPS Agreement.
The decision in the other case, Princeton Univ. Press v. Michigan Document Servs., 74 F.3d 1512 (6th Cir. 1996), has been vacated. Princeton Univ. Press v. Michigan Document Servs., reh'g en banc granted, vacated, stay granted 74 F.3d 1528 (6th Cir. 1996).
