who is the proper decisionmaker on questions of fair use — the judge or a jury

judge gertner has posed a question that cuts deep to the foundations of law and copyright. she is asking for help on it, to be argued before her this coming monday. i am posting her order here to my blog to invite your analysis and comment


12 Responses to “who is the proper decisionmaker on questions of fair use — the judge or a jury”

  • It’s a “mixed question of law and fact” which means I think that if there is are disputes as to what happened those are questions of fact for the fact-finder. But the legal conclusion to be draw from those facts — that is, whether the facts support a fair use defense — is one for the court to reach as a matter of law. Moreover, fair use is an “equitable doctrine” and therefore there is no right to a jury trial on the fact finding.

    Fitzgerald v. CBS Broadcasting, Inc., 491 F.Supp.2d 177, 183-184 (D.Mass.,2007):Plaintiff, of course, disagrees. “Fair use determinations usually present mixed questions of fact and law. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). However, where “no material historical facts are at issue” and “[t]he parties dispute only the ultimate conclusions to be drawn from the admitted facts,” fair use can be decided by the Court. Fisher v. Dees, 794 F.2d 432, 436 (9th Cir.1986). Here, the parties are in substantial agreement as to the origin, history, content, and defendant’s use of plaintiff’s photographs. The only issue of fact remaining has to do with the state of mind of defendant’s employees, which goes to the question of willfulness (see infra § V) but not fair use. As to fair use, the parties’ disagreements are over the interpretation of facts. As these are questions of law, I analyze them below.”

    National Ass’n of Government Employees v. BUCI, 118 F.Supp.2d 126, 129 (D.Mass. 2000):”Fair use is an equitable doctrine that grants others the privilege ‘to use copyrighted material in a reasonable manner without [the owner’s] consent.’ Haberman v. Hustler Magazine, 626 F.Supp. 201, 207 (D.Mass.1986) (quoting Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (citation omitted)).”

  • Sorry – I hadn’t read the order. The judge seems inclined to send factual disputes to a jury. That’s good. But I stand by my opinion that the legal inference to be made from the fact finding is for the court as a matter of law. I suspect strongly you’d prefer it otherwise.

  • Then again, William Patry states that the question is one of fact for a jury:

    “The trier of fact hears all evidence, makes factual determinations about the credibility and weight to be given to that evidence, weighs all four factors in light of those factual findings, and comes up with a judgment based on applying the law to the facts found. Characterization of the end judgment of fair use or no fair use as a question of law negates the fact-finding role that is the essence of fair use. Even if one were able to separate “subsidiary” fact findings from other fact findings (a dubious proposition), those factors are, per Campbell, not to be treated in “isolation, one from another. All are to be explored, and the results weighed together, in light of the purpose of copyright.”[FN24] What the Court has in mind is a holistic factual analysis. The end of that analysis may not be separated out from the process of analysis, however, and thus the idea of treating subsidiary factual findings under the clearly erroneous standard but the final finding as a question of law is fatally at odds with the type of inquiry required under Campbell.”

    Patry on Copyright, Section 10:60.

    He’s got a good point; the jury can be instructed as to the four factors. Moreover, there doesn’t seem any necessity to take away from the jury the question, for example, of the nature of the challenged use (which is the heart of your defense).

  • The availability of the fair use defense depends on all the circumstances surrounding the use of copyrighted material. This court has repeatedly stressed
    that HN13″on a motion for summary judgment the court cannot try issues of fact; . . . it must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, . . . with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. . . .”
    Frey Ready-Mixed Concrete v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 555, (2d Cir. 1977), citing Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). 13 See also Time, Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968); Berlin v. E.C. Publications, Inc., 329 F.2d 541 [**30] (2d Cir.), cert. denied, 379 U.S. 822, 13 L. Ed. 2d 33, 85 S. Ct. 46 (1964). Summary judgment on the issue of fair use was granted in Time, Inc. v. Bernard Geis and in the Berlin case, but there were no relevant facts in dispute in either case. In Berlin it was clear that the infringing parody had neither the effect nor the intent of fulfilling the demand for the original work, and that no greater amount had been appropriated than necessary. In Time, Inc. v. Bernard Geis it was likewise undisputed that there was little or no injury to the copyright owner, and the court found that the infringing book was not bought because it contained a copyrighted photograph of the Kennedy assassination at issue in that case. 293 F.2d 146. In the case before us it has been conceded that plaintiffs might have incurred damages, and there is a dispute between the parties as to the purpose of and necessity for including verbatim letters in the book. For the sole purpose of the summary judgment motion all parties conceded that appellants held a valid copyright for the Death House Letters. This issue, as well as the fair use question, remains in dispute [**31] however.


    13 See Gladstone v. Fireman’s Fund Insurance Co., 536 F.2d 1403, 1406 (2d Cir. 1976); United States v. Bosurgi, 530 F.2d 1105, 1110 (2d Cir. 1976); National Life Insurance Co. v. Solomon, 529 F.2d 59, 60-61 (2d Cir. 1975) (per curiam); Home Insurance Co. v. Aetna Casualty & Surety Co., 528 F.2d 1388, 1390 (2d Cir. 1976) (per curiam); Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975); Judge v. City of Buffalo, 524 F.2d 1321, 1322-23 (2d Cir. 1975).

    Meeropol v. Nizer, 560 F.2d 1061, 1071 (2d Cir. 1977):

    “Appellants are entitled to an opportunity to introduce evidence on the issues of the purpose of the use and of damages. Whether or not there has been substantial use which would deprive appellees of the fair use defense is a decision which must be made by the trier of fact after all the evidence has been introduced. We hold that it was error to uphold the fair use defense as a matter of law as to all defendants. As to Nizer and Doubleday it also [**32] was error to uphold the defense in the alternative on factual findings, in the absence of evidence on the question of damages. We therefore reverse the grant of summary judgment as to all defendants and remand so that appellants can be given the opportunity to introduce evidence on all aspects of the fair use defense. 14

    14 The purpose for which the letters were included in the book, whether the book is bought because it contains the Rosenberg letters, the necessity for verbatim copying of the letters, and the effect of the use of the copyrighted letters on their future market are among the relevant factors which may be considered before there can be a decision as to the availability of the fair use defense to appellees.”

  • Spilman v. Mosby-Yearbook, Inc., 115 F. Supp. 2d 148, 154 (D. Mass. 2000):

    “While a finding of originality is generally a question a of fact for the jury, under these circumstances it may be treated as a matter of law. See CMM Cable Rep Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504, 1517 (1st Cir. 1996) (holding that, where there is insufficient evidence to permit a reasonable factual finding of originality, the question may be disposed of as an issue of law at summary judgment).”

  • I am not aware of any case holding that where there is a disputed issue of fact on fair use, a jury cannot decide the issue. The occasional statements about fair use being an equitable defense are, in my opinion ahistorical (Judge Leval agrees). The characterization about fair use being a mixed question of law and fact, which originated I believe with the 11th circuit in one of its early Pacific & Southern v. Duncan cases, concerned only appellate review. Here is a longer discussion (footnotes omitted) of that case from the section Peter Friedman cited my from treatise (thanks Peter!)

    “In Harper & Row, Publishers, Inc. v. Nation Enterprises,
    the Court, citing as the only authority the Eleventh Circuit’s
    opinion in Pacific & Southern Co. v. Duncan,2 stated:
    Fair use is a mixed question of law and fact , Pacific &
    Southern Co. v. Duncan . . . Where the district court has found
    facts sufficient to evaluate each of the statutory factors, an ap-
    pellate court “need not remand for further fact finding . . .
    [but] may conclude as a matter of law that [the challenged
    use] [does] not qualify as a fair use of the copyrighted work.”

    This modest statement has, unfortunately, been grieviously ously misunderstood and, as a result, applied in unintended
    ways. Pacific & Southern Co. was an appeal from a bench
    trial. What motivated the Eleventh Circuit’s characteriza-
    tion of fair use as a mixed question of law and fact was its
    conclusion that the district court had engaged in an errone-
    ous interpretation of the law by refusing to analyze fair use
    under the second, third, and fourth statutory factors—rely-
    ing on a mistaken judgment that a failure to make a produc-
    tive use under the first fair use factor ended the fair use
    inquiry.The court of appeals, noting the statute’s use of the
    mandatory term “shall” in directing courts to examine all
    four statutory factors, ruled the district court acted contrary
    to the statute by analyzing the use only under the first
    factor . The court of appeals nevertheless affirmed the
    district court’s rejection of fair use because as a result of the
    bench trial, the district court had already found the facts,
    and the court of appeals needed only to apply the correct
    legal standard. Pacific & Southern thus involved a run-of-
    the-mill legal problem: the court of appeals, interpreting a
    statute, held that “shall” means “must,” and thus found legal
    error in the trial court’s refusal to evaluate the use under all
    four factors as commanded by Congress. But as all fact finding had occurred, there was no need for a remand.
    Harper & Row’s statement, citing Pacific & Southern that
    fair use is a mixed question of law and fact, should therefore
    be applied solely to appellate review of erroneous applica-
    tions of law. Where the district court has correctly applied
    the relevant law, or a jury has decided the issue under proper
    instructions, the standard of review is the clearly erroneous
    standard. Any other approach would be inconsistent with
    the right to a jury to decide fair use, a right recognized by all
    circuits, including the Eleventh.

  • Even as a layman I completely agree with the fact that fair use and copywriting laws should become more vigiliant especially since internet is growing very fast.

    Thanks for bringing up this discussion on this platform.

  • Just want to say what a great blog you got here!
    I’ve been around for quite a lot of time, but finally decided to show my appreciation of your work!

    Thumbs up, and keep it going!

    Christian, iwspo.net

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