Saturday, August 29, 2009

Article criticizes deciding fair use on summary judgment; Gertner exhibited 'class favoritism' toward 'large corporations' in fair use ruling?

Professor Ned Snow of the University of Arkansas law school has a provocative new article about courts' frequent use of summary judgment to adjudicate fair use defenses in copyright cases. As the abstract demonstrates, Snow opposes the use of summary judgment to decide fair use (except, perhaps, where the defendant is the movant), and instead believes juries should routinely determine fair use vel non:
Summary judgment has become commonplace to decide issues of fair use in copyright cases. But it was not always so. For well over a century, juries routinely decided issues of fair use. Courts recognized that the subjective nature of inferences in the fair use analysis made those inferences factual, precluding a summary disposition. They understood that the Seventh Amendment right to a jury and the First Amendment right of free speech demanded juries in fair use cases. Today, however, all this has been forgotten. Courts of today characterize the inferences in the fair use analysis as entirely legal so that summary judgment is appropriate. This Article examines the question of whether these inferences constitute matters of fact or matters of law. It further examines the reasons for which courts changed their characterization of these inferences, along with the constitutional tensions that have arisen as a result of this changed characterization.
Whatever the merits of this proposal (and I have grave doubts), there's no doubt that it would work a fairly radical shift in copyright litigation, where jury trials over fair use are rare (though not nonexistent). And, if adopted, Snow's proposal would seem to put an end to appellate development of fair use doctrine, at least in cases where the jury decided in favor of fair use. Assume that in Snow's proposed world, a jury returned a defense verdict on fair use in a case where, today, most courts would have granted summary judgment for the plaintiff on the issue, removing it from the jury's consideration. On what basis could the court of appeals review the verdict? Other than in extreme cases, wouldn't the appellate court have to say, "Sorry, but the jury has spoken. Even though we would weigh the statutory factors differently, and under our precedent, such use would not be considered fair, you're outta luck."? Would there even be a need to march through the four factors, or refer to existing fair use precedent?

Snow focuses on Judge Nancy Gertner's grant of summary judgment against Joel Tenenbaum's fair use defense as an example of improper judicial usurpation of the jury's role:
A finding of fairness in this situation would have offended Judge Gertner because such a finding—in her view—would have been standardless, or in other words, it would have been for a reason that the law of fair use does not contemplate. And if not based on the standards of fair use set forth in the law, what reason did Judge Gertner fear that ordinary citizens might apply in this case, where large corporations were suing college students? It seems possible, if not probable, that she feared jurors would determine the issue of fairness out of disdain for the large corporation—the sophisticated, wealthy corporation that was spending an abundance pursuing the seemingly poor, harmless college student. The quoted statement of Judge Gertner suggests that she did not trust the jurors to find against the corporate plaintiffs because they were large corporations, thereby suggesting her view that the large corporations needed protection from the twelve ordinary citizens. At a minimum, the statement demonstrates that Judge Gertner feared that the jury would rule differently than she would. By ruling herself rather than submitting the issue to a jury, Judge Gertner introduced the possibility that class favoritism influenced her ruling. It thereby appears that fair use is subject to the influences that the Seventh Amendment was intended to protect against.
Article at 55-56 (footnotes omitted). Frankly, the suggestion that Judge Gertner's fair use decision was motivated by "class favoritism" in favor of "large corporations," and against a "seemingly poor, harmless college student," is ridiculous. Judge Gertner is known as one of the most liberal members of the entire federal judiciary, an "outspoken product[] of the '60s and '70s counterculture movement." If anything, she expressed antipathy toward "large corporations," criticizing the "huge imbalance in these cases" and telling the plaintiffs' counsel, "the formalities of this are basically bankrupting people, and it's terribly critical that you stop it." And her personal connections to the defense were well-known; she personally recruited Harvard professor Charles Nesson (who had once represented Gertner herself) to take Tenenbaum's case. And (though I know it's impolitic to point out) Judge Gertner's husband John Reinstein, legal director of the Massachusetts ACLU, works for an organization that has opposed the labels' suits against individuals like Tenenbaum. For the record, when it came time to make substantive rulings in the case, and to conduct the trial, I thought Judge Gertner faithfully applied the law, and did not exhibit bias toward either side. And I thought her fair use opinion was consistent with precedent (if a bit too indulgent of some of Tenenbaum's arguments for my taste), and I expect it to be upheld on appeal.

(h/t Copyright Law)


  1. Haven't read the article, but wondered about the support his suggestion that older cases recognize a Seventh Amendment protection for the fair use defense. Seems unlikely that this statutory defense was established as a jury issue back in the 18th Century.
    A quick search federal cases with "fair use" and "Seventh Amendment" in the same paragraph came back with nothing.

  2. Snow ignores the fact that summary judgment is often used in all sorts of contexts exactly in the same way Judge Gertner used it in the Tenenbaum case -- one basis of summary judgment in any case is that "no reasonable jury could find for the non-moving party." Snow's criticism, if it had weight, could be directed at all of these cases, and at any case in which the trial court granted a motion for a directed verdict or for a JNOV. Also, it could be directed at appellate courts in cases in which the courts overturn jury verdicts and rule that summary judgment motions (motions for directed verdicts or JNOVs) were improperly denied. The fact is judges all the time rule in ways that contradict juries or deny juries the opportunity to rule, and they do so in part because they fear the juries will decide on bases other than those compelled by the law. There's nothing special here about fair use cases.

  3. Thank you each for your comments. My apologies for not responding earlier to these posts.

    For Lee Thomason:

    You would agree that “this statutory defense” was intended to codify the prior common law doctrine. That doctrine’s history indicates that issues of fair use were reserved for the jury. Consider language from Cary v. Kearsley, 170 Eng. Rep. 679, 681 (K.B. 1803) (Lord Ellenborough, C.J.): “I shall address these observations to the jury, leaving them to say, whether what so taken or supposed to be transmitted from the plaintiff's book, was fairly done with a view of compiling a useful book, for the benefit of the public, upon which there has been a totally new arrangement of such matter,—or taken colourable, merely with a view to steal the copyright of the plaintiff.”

    That your caselaw search turned up nothing makes perfect sense. In my article I observe that over the past couple decades judges have changed their characterization of fair use issues from entirely factual to entirely legal. The change occurred subtly, unintentionally, and without deliberation, stemming from faulty judicial reasoning (e.g., reasoning that if both parties move for summary judgment, all issues on summary judgment must be legal) and a blatant misinterpretation of a single sentence from Harper & Row. The change stuck, and more alarmingly, the change went unnoticed. So fair use issues have now become purely legal, and unsurprisingly, no one has raised a Seventh Amendment challenge that the now-legal issue should go to the jury.

  4. For Peter Friedman:
    "Snow ignores the fact that summary judgment is often used in all sorts of contexts . . . -- one basis of summary judgment in any case is that 'no reasonable jury could find for the non-moving party.'"

    I direct you to pages 26-33 of my article where I consider whether a judge may rule on fair use when the judge believes that no reasonable jury could find for the non-moving party—just as judges do in other contexts. My argument is that judges should refrain from applying this traditional summary judgment standard in fair use cases (as they so refrained in the past) because fair use raises issues of great subjectivity. Simply put, fair use lies in the eye of the beholder. A judge’s conception of reasonableness is necessarily clouded by his or her own subjective understanding of fairness (and its underlying components). And where issues of fact turn on subjective views—especially where those subjective views determine a defendant’s speech rights—the law has refrained from applying the usual “no reasonable jury could find otherwise” standard. Consider defamation. Courts never grant a public-figure plaintiff’s MSJ. Never. Why? Because a defamation defendant‘s speech rights turn on a subjective finding of fact, i.e., the factfinder must determine the defendant‘s intent. (Tellingly, however, courts do grant MSJs for defamation defendants—to protect their speech rights from the chilling of litigation.) Consider also negligence. Courts are often reluctant to apply the “no reasonable jury could find otherwise” standard. Why this reluctance? Because the standard of reasonableness that guides the negligence inquiry is so indefinite—much like the standard of fair use. Whether a defendant’s conduct is reasonable, and likewise whether a defendant’s use is fair, turns out to be a normative question of characterization dealing with whether the conduct ought to be so considered. The inquiry admits a broad array of views, and so it belongs to the jury—despite a judge’s belief that no reasonable jury could find otherwise.

    But all this is beside the point. Courts have now completely skipped the “no reasonable jury could find otherwise” step in the summary judgment analysis of fair use. They instead simply treat the issues as purely legal so that even if reasonable minds could differ on the resolution of these issues, the issues are inappropriate for a jury. And courts have been express on this point. See, e.g., Los Angeles News Serv. v. Reuters Television Int’l, 149 F.3d 987, 993 (9th Cir. 1998) (interpreting its caselaw as “rejecting [the] argument that fair use is appropriate for determination by summary judgment only when no reasonable jury could have decided the question differently”).

    "There's nothing special here about fair use cases."

    Oh but there is. Fair use represents the sole means for many defendants to realize their right of speech. Moreover, it represents a purposefully indeterminate doctrine, which gives rise to great subjectivity in its application. These facts set fair use apart from other cases where judges rightly keep fact issues from juries. Specifically, the subjective nature of fair use issues makes unreliable a judge’s conception of what a reasonable jury would consider to be fair. The single judge may not recognize the speech value (i.e., the fairness) underlying the use that a twelve-member jury would recognize. And given that fair use cases are speech cases, we cannot risk not getting it right. Fair use cases are indeed special.

  5. For Ben Sheffner:

    I respond to your criticism of my analysis of Judge Gertner’s jury denial in this post, and then I respond to your criticism of my normative proposal in a subsequent post.

    Let us begin by reciting the rationale under which Judge Gertner denied Tenenbaum a jury:

    “[Defendants’] demand for a jury determination on this issue appears all but standardless; ‘fair use’ would, in effect, be any use whatsoever that a jury deemed fair.”

    Note that this reason is NOT that a jury could reach only the conclusion that the use is not fair. Rather, the reason is that the jury could reach a conclusion that the use is fair: some uses a jury could deem to be fair which would not actually be fair, Judge Gertner apparently believes. Or in other words, Judge Gertner believes that the jury would decide the issue of fairness incorrectly if the jury’s view is not the same as her view. Simply put, she doesn’t trust the jury. (That Judge Gertner doesn’t trust the jury on fair use issues is further manifest by her prior legal opinions – see note 256 of my article.)

    This raises the question of why she might distrust the jury? As I point out in the article (pages 54-55), it is not likely that a judge withholds these issues from the jury because he or she favors one party over another. I am not arguing that Judge Gertner wanted the big corporation to win because she simply favors big corporations. Rather, I argue that like everyone else, Judge Gertner forms her views of the highly subjective fair-use issues based on her unique framework of life experiences that determine social values and norms. And where these issues are especially subject to disparate viewpoints, one may be influenced by the views of another who shares a similar background of life experiences. The successful educated elite is more likely to be influenced by the thought processes and views of another successful educated elite than with those of an unemployed college student. Although the influence may be entirely subconscious (see page 47 of the article), the influence is quite possible. Even where the judge outwardly would not favor the corporate class, the potential exists to be influenced by the party who shares common backgrounds of education or success. So, no, I am not arguing that Judge Gertner simply wanted the corporation to win. I am instead observing the possibility that a commonly-situated party (an educated elite) may influence a judge’s framing of issues—to the extent that if a jury could possibly frame the issues differently, its outcome would necessarily be incorrect. That outcome Judge Gertner apparently could not tolerate.

    All this being said, your criticism is a fair one. We cannot know what is causing Judge Gertner not to trust the jury. Certainly her outward opinions of big corporations would suggest that she does not favor them; nor does she apparently admire their litigation tactics. But that does not mean that her views and thought processes are not colored by their views and thought processes on the issue of fair use. In any event, all that this example of Judge Gertner need convey is a possibility. My overall argument need not prove that Judge Gertner was in fact influenced by class favoritism. The mere potential is enough. That alone is cause for concern.

  6. For Ben Sheffner:

    Regarding your discomfort with my normative proposal, it may seem that we should leave fair use to judges. This would enable clarity to be given to an already vague doctrine. Sending fair use to the jury surely would seem only to muddy the waters further.

    This criticism goes to the heart of the matter. Do we want a vague uncertain doctrine or a bright-line clear doctrine? I vote the former, and here is why: from its inception, fair use has been designed to fit all situations where speech rights outweigh copyright’s interest in suppressing another’s repetition of expression. To ensure proper speech protection, fair use is entirely flexible to meet the demands of disparate and variant circumstances under which it might apply. Fair use necessarily lies in grey to protect the strong speech interest at stake. With flexibility, however, comes uncertainty. The doctrine must be uncertain to be flexible. So although the four factors should be given as jury instructions to help guide the jurors’ analysis, not much more than that is advisable. By adding more brightline legal rules, the flexibility begins to diminish greatly. As courts create hard and fast rules, the grey becomes black and white, and many situations may not be contemplated by black-and-white rules; speech suffers. So, leaving it to the jury enables fair use to fit all situations; keeps it in the grey; protects speech.

    Does this preclude appellate review of a jury decision finding the use to be fair? Not necessarily. It will depend on the doctrine of independent review—a subject for another article.


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