Monday, July 20, 2009

Labels: Court need not decide whether fair use is ever a jury issue, because it isn't here

The record label plaintiffs in the Joel Tenenbaum case have filed their brief in response to the court's order of July 14, which sought the parties' position on the issue "whether fair use was historically treated as an equitable defense and, if so, whether it is properly decided by the judge or a jury."

Plaintiffs' Brief Re judge/jury divide on fair use

The labels do not answer the court's question directly. Instead, they say it is not necessary to determine whether a jury may ever decide fair use, because it is clear that in this case, there are no disputed issues of material fact, and thus the court should grant summary judgment on the fair use issue:
Without expanding on the extensive history of fair use, for purposes of this case, and this case alone, to the extent the Court finds an issue of triable fact and does not subsequently issue a directed verdict, Plaintiffs stipulate that the issue of fair use can be considered by the jury.
The labels use the rest of their brief as a kind of reply brief, responding to each of the arguments contained in Tenenbaum's brief opposing summary judgment. They argue that each of the alleged disputes of fact identified by Tenenbaum are actually not that, but instead are disputes about how the fair use doctrine applies to the undisputed facts set forth by plaintiffs -- or are based on "patently absurd" new fair use factors conjured up by Tenenbaum. And the application of the law to those undisputed facts is, they say, a task for the judge.

The exhibits to the brief contain numbers that will surely interest many: revenue figures for each of the works the labels are pursuing at trial. But while the numbers may be fascinating, they tell us almost nothing about the issues that are relevant at trial. As I have previously noted, these revenue numbers don't tell you profit, and they don't tell you what the numbers would have been absent piracy (Tenenbaum's or in general). Tenenbaum may be able to argue "See, they make lots of money!" But that's not really probative of the actual issues involving fair use or damages.

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