Re: Fair Use & Juries

I want to add, with respect to Prof. Ochoa's remarks concerning the use of a special verdict form, that many judges do not like complex forms due to a feeling that they can be too confusing. Nor would a form asking for responses at the level of specifity of each of the enumerated factors necessarily be appropriate, because they are not exhaustive and the individual responses would not help the jury to answer the ultimate question, since the conclusion of whether or not a use is fair requires a judgment going beyond the mere tally of which party wins on more factors. There doesn't seem to be much purpose in a special verdict form unless it went into each factor, however, since in many cases there will be no practical difference between the question "Do you find that the defendant's copying of copyrightable portions of plaintiff's work was a fair use?" and a general verdict asking whether the defendant has infringed or not.

Kerry L. Konrad
<k_konrad[_at_]stblaw.com> Received on Fri Oct 30 1998 - 21:46:20 GMT