Tuesday, June 16, 2009

Jury trials on fair use: the Loch Ness Monster of copyright law?

Are jury trials on fair use the Loch Ness Monsters of copyright law: often discussed, but (almost) never actually seen?

Following Judge Nancy Gertner's decision permitting accused peer-to-peer infringer Joel Tenenbaum to amend his answer to add a fair use defense, Team Tenenbaum spokeswoman Debbie Rosenbaum was quoted in the National Law Journal as follows:
[W]e look forward to asserting our fair use claim in court — a matter that has always been reserved for the jury.
(my emphasis). The claim that fair use is "always...reserved for the jury" is dead wrong; the issue is routinely resolved on summary judgment, short of trial. But I have a serious, non-rhetorical question: does anyone out there know of a single reported case, from any jurisdiction, that discusses a jury verdict on fair use? I don't believe I've ever seen one. Interestingly, as far as I can tell, Prof. Barton Beebe's huge 2008 empirical study of fair use opinions doesn't mention a single jury case. See esp. Table 2 on page 569:
More than half of the [district court] opinions [that were part of his data set] addressed a motion or cross-motion for summary judgment, and of these 121 opinions, 86% granted the motion or one of the cross-motions. This supports the conventional wisdom that courts regularly resolve fair use issues at the summary judgment stage.
(footnote omitted). What about the remaining 14%, where the court denied summary judgment? Did those all go to trial? Any appellate decisions result from the verdicts? If fair use is, as Rosenbaum asserts, "a matter that has always been reserved for the jury," one would expect to see at least one published case, somewhere, anywhere, discussing a jury verdict on fair use (e.g., an order on a motion for new trial, or an appellate decision evaluating a verdict). And yet I've never actually seen one. Anyone?

(I know of one recent case, in the Northern District of California, where the question of fair use went to the jury. I do not believe the case resulted in any published opinion.)


  1. i think brewer v hustler discusses whether a jury properly rejected a fair use defense.

  2. It looks like facebone is correct. I can't seem to cut and paste here but the 9th Circuit held that the jury could have properly found that the use was not fair. Brewer v. Hustler Magazine, 749 F.2d 527, 529 (9th Cir. 1984).

  3. Call me stupid. Go ahead. But aren't juries triers of fact and fair use a question of law?

  4. Here's what the Supreme Court said in Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985):

    "Fair use is a mixed question of law and fact. Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1495, n. 8 (CA11 1984). Where the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court 'need not remand for further factfinding . . . [but] may conclude as a matter of law that [the challenged use] do[es] not qualify as a fair use of the copyrighted work.'"

  5. I don't see why a jury wouldn't be able to evaluate fair use. It's the traditional purview of the jury to determine disputed facts, so a jury seems the appropriate vehicle to determine facts like the commercial nature of the use, or the purpose and character of the use, etc, while applying those facts to the statutory factors provided to them in a jury instruction.

  6. @Bruce Boyden:

    I just read the case: http://openjurist.org/749/f2d/527
    It may be that the question of fair use was put to the jury, but I'm not 100% sure. The opinion doesn't say that explicitly. Is it possible that Hustler moved for summary judgment on fair use, which was denied, then the case was tried (w/o the question of fair use being submitted to the jury), and then after the verdict, Hustler argued to the 9th Circuit that its fair use defense should have prevailed as a matter of law?

  7. Ben, I agree it's not clear from the opinion what the jury actually decided -- whether it was instructed on fair use at all. I read the opinion as saying, even if the jury wasn't explicitly instructed on fair use, it was in the mix of facts somewhere, and they could have decided against it. It's a pretty murky data point.

  8. Ben,
    Great blog post. I am amazed there is not more information about this out there. I did a quick Westlaw search and found a handful of opinions where the appellate court briefly discusses the jury's fair use verdict:
    Jartech, Inc. v. Clancy, 666 F.2d 403 (1982)

    Roy Export Co. Establishment of Vaduz, Liechtenstein, Black Inc., A. G. v. Columbia Broadcasting System, Inc., 503 F.Supp. 1137 (1980)

    New York University v. Planet Earth Foundation 163 Fed.Appx. 13 (2005)

    Harbor Motor Co., Inc. v. Arnell Chevrolet-Geo, Inc. 265 F.3d 638 (2001)

    Bateman v. Mnemonics, Inc. 79 F.3d 1532 (1996)

    Fiset v. Sayles, 963 F.2d 379 (1992)

  9. First Anonymous here responding to second Anonymous.

    The reason why I would anticipate that fair use is ultimately a question of law based on facts -- which is how one could read the quotation from Harper & Row -- is that the four factor test is all but worthless.

    As Posner said in Ty Inc., the Section 107 is "extensive" but "not illuminating." I think Judges, at least those experienced with adjudicating copyright cases, simply ask, "is this a practice that should be encouraged?" And in that question lies all of the structural interworkings of the Copyright Act and a broader analysis of policy. There is no easy test, but if there was, it wouldn't consist of the four factors set forth in Section 107.

    That is to say, even if a jury could examine the four factors and reach factual conclusions as to each prong, they still wouldn't really be any closer to conducting a successful fair use evaluation.


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