Tuesday, July 14, 2009

Judge is considering removing the Fair Use defense from the province of the jury in SONY v. Tenenbaum

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

[Ed. note.

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.


Commentary & discussion:


Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player


Unknown said...

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.

raybeckerman said...

An anonymous comment was rejected. It may or may not have been a troll from the usual suspects.

In any event it confused the "summary judgment vs. trial" issue with the "judge trial vs. jury trial" issue; two completely separate issues.

If there is no material issue of fact there is no trial.

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.

It seemed to me that the writer was of sufficient sophistication that the confusion was deliberate, rather than inadvertent.

Unknown said...

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.

Anonymous said...

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.

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?

-Quiet Lurker

Anonymous said...

I beg to correct my earlier post.

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?

-Quiet Lurker

gwroth said...

to quiet lurker:

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.'

Interested said...

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?

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.

raybeckerman said...

Would suggest everyone read my expanded editors note, written after I took a few minutes more looking at Judge Gertner's decision.

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.

raybeckerman said...

Dear anonymous interested,

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.

Anonymous said...

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?

raybeckerman said...


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.

Unless the judge finds as a matter of law that the jury's verdict was unsupported by any evidence in the record, you could have 2 different results.

The judge could grant the injunction.

But there would be no monetary award.

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.

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.