tag:blogger.com,1999:blog-5383512304639632735.post1586673671746755615..comments2024-01-23T07:34:52.253-08:00Comments on Copyrights & Campaigns: Tenenbaum: precedent? We don't need no stinkin' precedent.Ben Sheffnerhttp://www.blogger.com/profile/06477793715765992689noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-5383512304639632735.post-61886016338481528742009-05-18T10:36:00.000-07:002009-05-18T10:36:00.000-07:00I'm going to have to lay in a supply of popcorn an...I'm going to have to lay in a supply of popcorn and sodas for this trial, because it's gonna be EPIC.DensityDuckhttp://what.why.netnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-20052685209769975472009-05-17T18:57:00.000-07:002009-05-17T18:57:00.000-07:00Charlie may not be very interested in precedent. (...Charlie may not be very interested in precedent. (Rather odd, coming from Harvard Law School, or indeed any accredited law school, frankly).<br /><br />However, the irony is that he may be about to set one, and given the way he is going about it, it could be a real stinker.<br /><br />Good luck, Joel. You're gonna need it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-41573163505876328612009-05-17T10:24:00.000-07:002009-05-17T10:24:00.000-07:00Ben,
Thank you for the info on the case I cited. ...Ben,<br /><br />Thank you for the info on the case I cited. I suspected as much, but could not answer the question definitively based solely on the 9th Circuit opinion.<br /><br />BTW, when referring to a "battle royale" perhaps I should have elaborated a bit more and more properly characterized it as a "battle 'of the brackets' royale", for clearly the open-ended language of 107 admits to the consideration of factors. I can quite easily anticipate what Mr. Nesson would try and have the court insert, but out of respect for him I will refrain from elaborating further.<br /><br />MikeAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-40461712587715101562009-05-17T10:11:00.000-07:002009-05-17T10:11:00.000-07:00Mike --
I agree with your "take away" (with the ...Mike -- <br /><br />I agree with your "take away" (with the caveat that in the Mercury News case, fair use was determined by a jury). But one correction: the 9th Cir.'s opinion in LANS v. Tullo followed a bench trial, not a jury trial: "After a bench trial, the district court entered judgment for LANS on the copyright infringement claims and awarded statutory damages of $ 10,000 for each infringement, a total of $ 20,000." http://fairuse.stanford.edu/primary_materials/cases/c973F2d791.html<br /><br />It is true that the 9th Cir. has promulgated model jury instructions on fair use, which may suggest that a jury trial may be appropriate in some circumstances. The instructions basically just re-state Section 107:<br /><br />http://207.41.19.15/web/sdocuments.nsf/18d8322df5fb351c8825728200016dd0/f0523ab984bef6d28825728b005e6944?OpenDocument<br /><br />17.18 COPYRIGHT—AFFIRMATIVE DEFENSE—FAIR USE<br />(17 U.S.C. § 107)<br /><br />One who is not the owner of the copyright may use the copyrighted work in a reasonable way under the circumstances without the consent of the copyright owner if it would advance the public interest. Such use of a copyrighted work is called a fair use. The owner of a copyright cannot prevent others from making a fair use of the owner’s copyrighted work.<br /><br />Defendant contends that defendant made fair use of the copyrighted work for the purpose of [criticism] [comment] [news reporting] [teaching] [scholarship] [research] [other purpose alleged]. The defendant has the burden of proving this defense by a preponderance of the evidence.<br /><br />In determining whether the use made of the work was fair, you should consider the following factors:<br /><br />1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;<br /><br />2. the nature of the copyrighted work;<br /><br />3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;<br /><br />4. the effect of the use upon the potential market for or value of the copyrighted work; and<br /><br />[5.] [insert any other factor that bears on the issue of fair use].<br /><br />If you find that the defendant proved by a preponderance of the evidence that the defendant made a fair use of the plaintiff’s work, your verdict should be for the defendant.Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-84305965793643365142009-05-17T09:57:00.000-07:002009-05-17T09:57:00.000-07:00Ben,
Yet another example at the appellate level i...Ben,<br /><br />Yet another example at the appellate level is LOS ANGELES NEWS SERVICE, ROBERT TUR v. FRANK TULLO; CHARLES BICKERT; AUDIO VIDEO REPORTING SERVICES (9th Circuit, 1992). Unfortunately, I was unsuccessful in securing a copy of the District Court opinion for this case, and the 9th Circuit panel's opinion made only generic reference to "court", it not being clear if the predicate facts were determined by the judge or a jury (if, in fact, there was even a jury). While the 9th Circuit panel did characterize the question of fair use as one of "fact and law", it did appear to hold that whether or not the defense of fair use has been established is ultimately a question of law subject to de novo review.<br /><br />My "take way" from this and other cases I have read over the many years I have practiced (I am perhaps in the distinct minority of setting time aside to regularly read advance sheets) is that no matter who serves as the trier of fact, be it a judge or a jury, the application of those facts to determine if fair use actually pertains in one of law entrusted to the presiding judge.<br /><br />Hence, even if by some miracle Mr. Nesson is able to get his amendment entered and the case presented to a jury, it is the presiding judge who has the final say in the matter.<br /><br />I can only begin to imagine the "battle royale" that would ensue concerning jury instructions if a jury is empaneled.<br /><br />MikeAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-50045140522179887322009-05-17T08:59:00.000-07:002009-05-17T08:59:00.000-07:00Here's what the Supreme Court said in Harper &...Here's what the Supreme Court said in Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985):<br /><br />"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.'"<br /><br />From what I know, a jury deciding fair use is, at best, an extremely rare occurrence. It's been a while since I've done real research on this topic, but a few years ago I read every single fair use opinion (appellate and district court) since 1984 in the 2d and 9th Circuits, and I don't recall any of them involving a jury verdict (e.g., an order on a motion for new trial, or an appeal following a jury verdict).<br /><br />I am genuinely curious whether others know of examples of fair use being decided by a jury, other than the Mercury News case I linked to in the main post.Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-48375389682393660062009-05-17T08:44:00.000-07:002009-05-17T08:44:00.000-07:00Just a simple question. In your opinion is the "u...Just a simple question. In your opinion is the "ultimate determination" of whether or not a particular use is "fair" a question of law or a question of fact? Because so many issues are considered as being questions of mixed law and fact, this is why I have become my own lexicographer and adopted the phrase "ultimate determination", it being clear that the answer implicates the standard of review on appeal - "de novo" or "clearly erroneous".<br /><br />Nesson is obviously angling for the latter.<br /><br />Merely as an aside, given Mr. Nesson's penchant for viewing the FRCP as mere "guidance", I am hardly surprised that the import of precedent is being cast aside as irrelevant. Even assuming arguendo, that the filing of an amendment to the Answer(s) at this late date is not precluded, I do have to question the wisdom of Mr. Nesson's argument in his motion that judicial precedent is to be thrown out the window. In my view he lacks familiarity with the simple rule "the less said the better".<br /><br />Mike SloneckerAnonymousnoreply@blogger.com