In SONY BMG Music Entertainment v. Tenenbaum, the Court has sua sponte (a) issued an order questioning whether the Fair Use defense is triable to the jury, even though the courts have historically treated Fair Use as a jury question, (b) directed the parties to brief the issue, and (c) gave them only six (6) days in which to do so.
Order directing parties to brief issue of whether Fair Use is triable by jury
1.I find this decision surprising, since (a) as Judge Gertner herself notes, the courts have traditionally considered Fair Use a jury question, and (b) in an action at law which is triable to a jury, "equitable defenses" are also triable to the jury notwithstanding their equitable nature.
2. I've reviewed the judge's footnote number 1, and think it suggests several errors in reasoning:
(A) The number of reported decisions decided on summary judgment or preliminary injunction motion is meaningless, for the reason that jury verdicts are never reported decisions. If there were 5000 jury verdicts determining fair use one way or the other, not a single one of them would have shown up in that study. There is simply no statistical procedure available for finding out how many fair use jury verdicts there have been.
(B) A court's determination of fair use on summary judgment is a determination that there is no triable issue of fact, not a determination that if there were triable issues of fact, the issues are triable to the court rather than to the jury.
(C) A court's determination of fair use on a preliminary injunction motion is not a determination that the issue is triable to the court rather than to the jury, it is merely a determination that it appears likely that the plaintiff will succeed at trial.
(D) Even the permanent injunction side of the case is of course triable to the Court and not to the jury, as injunction cases are always triable by the judge and not by the jury. It is the monetary damages side of the case that we are talking about. If one of the parties has demanded a trial by jury in a copyright case which contains both monetary and injunctive claims, the monetary side of the case is triable to the jury, and the jury's verdict as to the injunctive part of the case -- if there is one -- is advisory only. I.e. the judge will ultimately have to decide the fair use issue in any event, but only as to the injunctive side of the case.
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