Re: Fair Use & Juries

From: Martin J. Adelman <ad3192[_at_]wayne.edu>
Date: Thu, 29 Oct 1998 11:24:29 -0500

On 10/28/1998, 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.
>
> 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?

The one thing we know for certain about the question of whether the seventh aendment requires the use of a jury to decide the question of "fair use" is that it was not decided in Feltner. Feltner did no more than align copyright cases seeking statutory damages with patent cases seeking actual damages. It is settled that equitable issues in patent cases both as to fact and law are for judges alone. Thus, for example, "inequitable conduct" issues are for the court. Sometimes, the court may use an advisory jury, but that is within the control of the judge. Those more knowledgeable on copyright law than I can debate what is the best analogy to "fair use" tried in the English courts in 1791. If it were a legal issue, then "fair use" is for the jury. If not, then it is for the court. In the absence of any good analogy, the Supreme Court would likely have to decide whether as a matter of policy the issue should be for the jury. If so, then it will be labeled a question of fact. If not, then it will be labeled a question of law. Plainly it is a question of judgment based on underlying facts. Thus, copyright experts will have to argue whether that judgment question is best left to judges or should be decided by the jury.

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Martin J. Adelman
Visiting Professor of Law
George Washington University
Phone: (202)994-7703
madelman[_at_]main.nlc.gwu.edu
m.adelman[_at_]wayne.edu
Fax: (248)356-7554

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Received on Thu Oct 29 1998 - 16:30:23 GMT