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.)