Re: Fair Use & Juries

On 10/28/98, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> 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.

If you don't like terse, you might want to look at the several prolix opinions in Hilton-Davis v. Warner Jenkinson (Fed.Cir. 1995) (rev'd on other grounds) holding in part that infringement under the doctrine of equivalents is an issue of fact for the jury; and more generally, In re Markman (S.Ct. 1996) holding that patent claim construction is a legal issue for the court. These won't answer your question, but do provide a framework for understanding the thinking on what issues are for the court and jury respectively.

I think Mark is probably right that the general view in Feltner that copyright infringement is a jury issue swallows the argument that fair use is an equitable defense; but I don't think you can dismiss out of hand the contrary argument that fair use was an equitable defense at common law, which might be parceled out to the court, and Markman reveals the sort of crabbed inquiry into antiquity (TM) that would be needed to support the claim.

John Noble
<jnoble[_at_]dgsys.com> Received on Thu Oct 29 1998 - 15:14:20 GMT