Re: Fair Use & Juries

From: Bob Stock <bstock[_at_]ucla.edu>
Date: Wed, 28 Oct 1998 07:53:24 -0800

On 10/27/98, Mark Lemley <mlemley[_at_]mail.law.berkeley.edu> wrote:
>
> On 10/26/98, Bob Stock <bstock[_at_]ucla.edu> wrote:
> >
> > I got into a tussle with an attorney in another forum about fair use
> > and whether it is decided by a judge or a jury. He appeared to be
>
> I would think that the Supreme Court's decision in Feltner this year put
> the "equitable" argument to rest.

Although I appreciate your input, I would rather you be a little less terse.

Feltner decided that despite the statutory language in section 504(c), a party is constitutionally entitled to have a jury decide the amount of statutory damages. Feltner contains emphatic language about the issue of damages being traditionally the province of a jury. There is even broader language about copyright cases being normally decided by juries. Fair use is *never* mentioned in the case. So, although perhaps you can read into Feltner the implication that in any copyright case where damages are demanded, all issues must be decided by a jury (if requested), I'm not sure that a case *not* about fair use puts any procedural dispute about fair use "to rest."

I'm not experienced in this yet, so bear with me while I pose a couple of practical hypos that announce my ignorance.

1. You have a copyright infringement case where actual damages of $100,000 are asked for. A jury is demanded. The case proceeds, and the judge instructs the jury on the various issues related to infringement but reserves the issue of fair use for himself. The jury reaches a verdict of infringement and decides damages. The judge then decides whether the use was fair. How does Feltner resolve this decision on the part of the judge to separate the issues and the trial in this way?
2. You have a copyright infringement case where actual damages of $100,000 and an injunction against further infringement are both requested. A proper jury demand is made. Does the jury decide the whether to issue an injunction?

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Bob Stock <bstock[_at_]ucla.edu>
UCLA School of Law '98
http://www.geocities.com/Paris/1206/

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Received on Wed Oct 28 1998 - 15:54:26 GMT