I'll admit that I'm not sure how the law operates here myself. But I worry that because fair use is an affirmative defense, your formulation opens the door to something like a platform vendor analog to SLAPP suits. That is: it seems like if I, as the legally anointed steward of a platform, believe that your leveraging of my API is in line with my business model, I can decide not to sue you. If you try to compete with me (even in a venue that isn't using said API), I can decide to sue you just to make you incur the cost of defense. The particular burden of platform fragmentation and how it interacts with trademark law is a pretty subjective thing, so I suppose Oracle ultimately gets to make a prospective competitor relitigate Apple v. Franklin and Sega v. Accolade and Oracle v. Google Every. Single. Goddamned. Time. They. Want.
I don't disagree with you about that being a danger - but I don't think that the solution to bad faith operators in copyright is to bring the system down any more than I believe it to be the answer in patent law.
I think that the system desperately needs to more actively punish those who abuse the legal system.
If a case is found to be frivolous I belief that the plaintiff should have to pay both fines and damages. The plaintiff's lawyers should also be punished - warnings, fines and eventual disbarment.
I'd prefer it if it didn't to come to that, and they lack the budget to do all that needs to be done, the system simply lacks enough good operators to act as a counterpoint to those operating in bad faith.
I think when you need that counterpoint at all, it's the system as a whole that needs to change.
But this is getting way off topic.
No, sir, I don't like it.