Re: Fair Use & Juries

Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> 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?
>

I think Feltner stands for the proposition that copyright causes of action are ones in which there is a right to a jury trial. I don't think the judge can "reserve for himself" a necessary legal issue to dispose of such a case, at least outside the normal bounds of summary judgment, JMOL, etc.

That doesn't mean that juries decide questions of injunctive relief, though.

Mark Lemley
<mlemley[_at_]mail.law.berkeley.edu> Received on Thu Oct 29 1998 - 19:46:20 GMT