Re: Fair Use & Juries

On 10/28/98, 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?

Although Feltner may not put the argument entirely "to rest," I have to agree with Mark that it is a pretty strong indicator that the court would treat the fair use portion of an infringement action as legal rather than equitable. If so, the judge's decision on fair use would be reversed and remanded (unless the fair use ruling met the standard for summary judgment). On retrial, the judge would have to instruct the jury on fair use.

I think the problems with this scenario are inadequate instructions to the jury. (The jury should be instructed on the details of how to analyze the four factors, not simply quoted the statute without any further explanation.) More thorough instructions would help.

Depending on the facts, a better solution might be for the court to craft a special verdict form with interrogatories, and base a fair use determination on the facts found by the jury. I think that process stands a much better chance of being upheld. I bet most judges would PREFER to leave it entirely to the jury, however.

Another possibility would be de novo review of the jury's fair use determination. This is required for "actual malice" in libel cases because of the First Amendment interests at stake, and to my knowledge the Court has never even hinted that it violates the Seventh Amendment. A good case could be made for imposing such a requirement on fair use determinations in copyright cases as well.

> 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?

No, the judge decides whether to issue the injunction. As a practical matter, however, the court will follow the jury's determination of infringement, since irreparable injury is presumed upon a finding of infringement. [The judge is NOT free to disregard the jury's finding on infringement (unless the JNOV standard is met); but he/she is free to decide any remaining issues concerning the injunction.]

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Fri Oct 30 1998 - 00:22:26 GMT