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)