Re: Fair Use & Juries

On the subject of whether a court would submit a fair use defense to the jury, I agree with Prof. Ochoa and others that a federal judge would likely be inclined to do so, whether or not the law is entirely clear on the point. Most federal judges are acutely aware of the strong federal policy in favor of jury trials, derived from the Seventh Amendment and reinforced by numerous Supreme Court decisions, including the most recent copyright one regarding statutory damages. Indeed, there are situations where a jury trial on a state law claim or remedy would not be available in state court but a federal court will proceed otherwise, in consequence of this strong policy -- even when the state statute specifically says the court is to make the determination! In other words, for the lawyers on the list, Byrd trumps Erie. Also, as a practical matter, the court may well conclude that it is far less likely to be reversed if it submits the matter to the jury than if it does not, making the decision a fairly easy one for reasons of judicial economy. I'm not sure whether this is a good outcome or not (among other things, a jury verdict results in no explanation of the reasoning, has almost no precedential value and is more difficult to disturb on appeal), and I'm not even sure whether fair use is properly characterized as an equitable or legal defense (it began as a judicially-developed doctrine, but that does not necessarily make it equitable, and I think statutory defenses are in a sort of separate category for this type of analysis). What I am sure about is that if you are advising a client about strategy in a case, you need to contemplate the likelihood that the defense will go to the jury if one is demanded (which may or may not benefit either side) and consider procedural alternatives if you want the judge to make that determination. My impression is that much of the reported caselaw on the subject arises in the context of motions seeking preliminary injunctions.

Kerry L. Konrad
<k_konrad[_at_]stblaw.com> Received on Fri Oct 30 1998 - 21:30:21 GMT