tag:blogger.com,1999:blog-15479871.post2313809064949483018..comments2024-03-22T03:28:24.897-04:00Comments on Recording Industry vs The People: Judge is considering removing the Fair Use defense from the province of the jury in SONY v. Tenenbaumraybeckermanhttp://www.blogger.com/profile/11063235302436280455noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-15479871.post-85377187737814941022009-07-15T16:48:22.213-04:002009-07-15T16:48:22.213-04:00Absolutely.
You could have a situation where the...Absolutely. <br /><br />You could have a situation where the jury -- the finder of fact in the money damages part of the case -- finds that there was a fair use, and the judge -- the finder of fact in the injunction part of the case -- finds that there was not.<br /><br />Unless the judge finds <b><i>as a matter of law</i></b> that the jury's verdict was unsupported by any evidence in the record, you could have 2 different results.<br /><br />The judge could grant the injunction.<br /><br />But there would be no monetary award.<br /><br />Under a scenario where the jury concluded there was no fair use, and the judge concluded that there was, you could wind up with the money damages being awarded, and the injunction being denied.<br /><br />Where there is a dual trial like that, the judge treats the jury's verdict as "advisory". Most judges would go along with what the jury held, but they are legally not required to do so.raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-1763181610223024482009-07-15T16:28:08.538-04:002009-07-15T16:28:08.538-04:00Am I understanding your editor's note correctl...Am I understanding your editor's note correctly in that a jury could side with the defendant considering that the actions were indeed fair use, but the judge could, at the same time, rule that it was not and order the defendant to stop doing whatever it is the jury found was fair use?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-44930118939810054082009-07-15T13:18:00.514-04:002009-07-15T13:18:00.514-04:00Dear anonymous interested,
I think I can with co...Dear anonymous interested, <br /><br />I think I can with confidence that if Judge Gertner were aware of this issue having been ruled upon by the First Circuit, she would not have asked the parties to brief the issue, but would simply be following whatever the First Circuit said.raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-83362961734975939582009-07-15T13:06:25.102-04:002009-07-15T13:06:25.102-04:00Would suggest everyone read my expanded editors no...Would suggest everyone read my expanded editors note, written after I took a few minutes more looking at Judge Gertner's decision.<br /><br />Also, I rejected a comment calling for 'jury nullification'. (a) It was offtopic. (b) It could have been from a troll trying to make this blog look bad. (c) Jury nullification means the jury not following the legal instructions; lawyers don't subscribe to that kind of thinking. Sorry.raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-27270300452149648682009-07-15T12:33:12.924-04:002009-07-15T12:33:12.924-04:00What does the First Circuit have to say about this...What does the First Circuit have to say about this issue? Is there any disagreement within Judge Gertner's controlling circuit about whether this is an equitable or legal defense?<br /><br />It seems like the Judge is academically interested in these types of questions given that she cites in her order her own writings on the role of juries. But this does seem pretty out of the ordinary for a trial judge to feel out these issues without even citing controlling law.Interestednoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-17495605036309046932009-07-15T08:45:51.022-04:002009-07-15T08:45:51.022-04:00to quiet lurker:
as far as trying to avoid openin...to quiet lurker:<br /><br />as far as trying to avoid opening a can of worms, what does that have to do with precedent? courts are bound by law and established precedent, and the fair use clause wasn't invented yesterday - many a trial have come and gone where fair use was put to a jury. the judge deciding for herself in order to avoid a 'can of worms' is outside the normal role of the courts; see 'activist judges.'gwrothhttps://www.blogger.com/profile/09635140997760986266noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-82680069857026087482009-07-14T22:52:32.444-04:002009-07-14T22:52:32.444-04:00I beg to correct my earlier post.
What I meant to...I beg to correct my earlier post.<br /><br />What I meant to suggest was that, I wonder if the judge is seeking a way to not give the appellate court grounds to remand and or reverse owing to how she treated the fair use defense. Or, to put it another way, is Judge Gertner not sure herself whether to reserve the fair use defense to herself, or whether to present it to the jury, and so has directed counsel to brief the matter out of an overabundance of caution?<br /><br />-Quiet LurkerAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-7174440920570994782009-07-14T22:23:20.740-04:002009-07-14T22:23:20.740-04:00In the alternative, I suspect (not a lawyer so bas...In the alternative, I suspect (not a lawyer so basing this suspicion on nothing but my understanding of what fair use is all about) that to try fair use to a jury would be to open up a can of worms which the court might wish to avoid for (fill-in-the-blank) reason. <br /><br />Could Judge Gertner be looking for an effective way of addressing the issue without bringing it to the jury and also without materially affecting the outcome?<br /><br />-Quiet LurkerAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-15479871.post-91857357305645366962009-07-14T21:14:49.651-04:002009-07-14T21:14:49.651-04:00Could it possibly be that the Judge is looking to ...Could it possibly be that the Judge is looking to see what the RIAA's version of what "Fair use" is? Getting their version set down on paper so that during the trail they can't have one of the "Experts" extol some other version if things aren't going their way.Unknownhttps://www.blogger.com/profile/07983500669245018182noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-26431117898557440622009-07-14T20:34:04.650-04:002009-07-14T20:34:04.650-04:00An anonymous comment was rejected. It may or may n...An anonymous comment was rejected. It may or may not have been a troll from the usual suspects.<br /><br />In any event it confused the "summary judgment vs. trial" issue with the "judge trial vs. jury trial" issue; two completely separate issues.<br /><br />If there is no material issue of fact there is no trial.<br /><br />The question, and the only question raised by Judge Gertner's order is whether -- if there is a material issue of fact and hence the need for a trial of the issue -- either party has a right to insist that the jury, rather than the judge, shall determine the issue.<br /><br />It seemed to me that the writer was of sufficient sophistication that the confusion was deliberate, rather than inadvertent.raybeckermanhttps://www.blogger.com/profile/11063235302436280455noreply@blogger.comtag:blogger.com,1999:blog-15479871.post-81923876539792363462009-07-14T17:28:56.908-04:002009-07-14T17:28:56.908-04:00I think the judge was feeling left out of the writ...I think the judge was feeling left out of the writing of strange and bizarre legal documents. The Attorneys get to do it, so should the judge.Unknownhttps://www.blogger.com/profile/07305750125920590971noreply@blogger.com