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Judge May Take "Fair Use" Away From Jury 342

Posted by kdawson
from the know-it-when-i-see-it dept.
NewYorkCountryLawyer writes "In what I can only describe as a shocker, the Judge in SONY BMG Music Entertainment v. Tenenbaum has, on her own, issued an order questioning whether the jury will be allowed to decide the 'fair use' issue at all, or whether the Judge herself should decide it. Judge Nancy Gertner's decision (PDF) notes that the courts have traditionally submitted the fair use defense to the jury, but questions whether that was appropriate, since the courts have referred to it as an 'equitable' — as opposed to a 'legal' — defense. This decision came from out of the blue, as neither party had raised this issue. IMHO the Judge is barking up the wrong tree. For one, all across the legal spectrum in the US, 'equitable' defenses to 'legal' claims are triable to a jury. Secondly, as the Judge herself notes, the courts have traditionally submitted the issue to the jury. It also seems a bit unfair to bring up a totally new issue like that and give the parties only 6 days to do their research and writing on the subject, at a time when they are feverishly preparing for a July 27th trial."
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Judge May Take "Fair Use" Away From Jury

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  • by Proudrooster (580120) on Tuesday July 14, 2009 @09:49PM (#28699003) Homepage
    Hey... that's not FAIR, to take away FAIR USE. :)
  • Automatic Appeal? (Score:5, Insightful)

    by electricprof (1410233) on Tuesday July 14, 2009 @09:54PM (#28699037)
    It almost seems like the judge is begging for an appeal to kick it upstairs and make it somebody else's problem. IANAL but isn't this like asking for an appeal?
  • Just Remember (Score:5, Insightful)

    by bky1701 (979071) on Tuesday July 14, 2009 @10:05PM (#28699111) Homepage
    Ballot, Soap, Jury, Ammo; they should be used in that order.
  • That (Score:5, Insightful)

    by Dunbal (464142) on Tuesday July 14, 2009 @10:15PM (#28699187)

    Makes perfect sense. After all, fair use has been taken away from everyone else.

  • by jmorris42 (1458) * <jmorris.beau@org> on Tuesday July 14, 2009 @10:18PM (#28699201)

    > This is just another example of Judges emasculating juries, dis-empowering them.

    Exactly. Judges these days want to rule. They don't want to be constrained by having to bother with juries, legislatures, laws, constitutions, and certainly not the executive. This case is a poster child for judicial activism.

    So the 6th and 7th Amendments go into the toilet now... to join the 1st, 2nd, 9th and 10th, big parts of the 4th and 5th and the 8th. But we still have the 3rd Amendment inviolate!

    Folks, when do we say ENOUGH! These idiots only get away with this foolishness because we just bitch and moan and don't make them pay a political price.

  • by Daniel Dvorkin (106857) * on Tuesday July 14, 2009 @10:32PM (#28699321) Homepage Journal

    Can you point out to me where in the Constitution jury nullification is mentioned?

    Seriously, AFAIK, jury nullification is something we inherited from English common law, and was never really codified. It's a fine idea, but people who are making it out to be an inviolable right up there with free speech or the bearing of arms are going a bit overboard.

  • by 0123456 (636235) on Tuesday July 14, 2009 @10:35PM (#28699343)

    It's a fine idea, but people who are making it out to be an inviolable right up there with free speech or the bearing of arms are going a bit overboard.

    There is precisely zero point in having a jury if they aren't judging the law as well as the defendant. If courts merely existed to ensure that every law was enforced, there would be no need for juries.

    The reason our ancestors fought for the right to jury trials was to protect them against arbitrary laws by ensuring that only one person in twelve had to disagree before the government would be unable to get a conviction.

  • Re:Jury Rights (Score:4, Insightful)

    by Daniel Dvorkin (106857) * on Tuesday July 14, 2009 @10:37PM (#28699355) Homepage Journal

    This "Citizens Rule Book" you seem so enamored of is not something that any sane person would take as a guide to US law.

  • Re:Just Remember (Score:3, Insightful)

    by DoofusOfDeath (636671) on Tuesday July 14, 2009 @10:41PM (#28699363)

    Ballot, Soap, Jury, Ammo; they should be used in that order.

    When a few people have tried that, they tend to end up in Federal prison for a long time, and they don't exactly get crowds of like-minded supporters pulling open the prison doors.

    It's an interesting idea to espouse, but lets be honest, 99.99999% of us lack the courage to be that patriotic.

  • by Daniel Dvorkin (106857) * on Tuesday July 14, 2009 @10:46PM (#28699389) Homepage Journal

    Huh? The main function of a jury in any criminal case is to decide whether or not the defendant broke the law, not whether or not the law is fair. If it were really true that "[t]here is precisely zero point in having a jury if they aren't judging the law," then in cases involving laws that pretty much everyone agrees on -- murder, for example, or armed robbery -- we wouldn't have juries at all. But of course we do, and in fact we regard the integrity and competence of the jury as being most important in precisely those cases where both the crime and the legal penalty for the crime are the most clear-cut and severe.

  • by Quothz (683368) on Tuesday July 14, 2009 @10:50PM (#28699417) Journal

    Even though Slashdot has sued websites in the past for copyright infringement

    I was gonna mod you up, but I'm just too darned curious about this line. I must've missed it, assuming you're not making it up. Anyone remember such a thing?

  • Jury nullification (Score:5, Insightful)

    by jmorris42 (1458) * <jmorris.beau@org> on Tuesday July 14, 2009 @10:50PM (#28699419)

    > jury nullification is something we inherited from English common law, and was never really codified

    Well yes and no. It is sorta implicit. Combine "no fact tried by a jury, shall be otherwise re-examined" with jurors being immune to retribution by the courts for their verdicts (barring jury tampering, etc) and jury nullification kinda falls out as a consequence. If the jury decides you are guilty according to the law but that law is stupid they are free to return not guilty. It is then pretty much impossible to try the perp a second time (unless it is a civil rights case... then the feds can have a second try. grr.) and the jury is in no fear of consequences for their actions even when they do something really infamous like set OJ free.

    This judge obviously fears exactly such a thing so is attempting to bypass the jury. The correct response is impeachment. Anything less sends a signal to other judges that this sort of thing is acceptable, even if some higher judge rules she can't do it in this particular case. Violating the right to a trial by jury is something no judge should be allowed to even contemplate.

  • Re:Jury Rights (Score:4, Insightful)

    by dcollins (135727) on Tuesday July 14, 2009 @11:17PM (#28699619) Homepage

    The jury does not have to follow the judges rule or of the law as applied to the trial. The wit, if the jury believes a law to be wrong or a bad law they can disregard the law and rule against it.

    I actually said that to a judge in Boston when I had jury duty in a criminal case about 4 years ago. I was instantaneously booted from the jury pool. (Yay, I guess?)

  • by The_mad_linguist (1019680) on Tuesday July 14, 2009 @11:45PM (#28699813)

    Jury nullification, anyone?

    I was under the impression that in the even of a contract being vague, the person who didn't write it gets their way. That principle, if I recall correctly, was used to declare that, legally speaking, tacos are not sandwiches.

  • by Falconhell (1289630) on Wednesday July 15, 2009 @12:12AM (#28699977) Journal

    A beaurocrat decides your health care eh?

    Doesn't that already happens with your HMO system?

    Some beancounter decides your treatment.

    Would you rather a public servant or an accountant
    decide your treatment?

  • Priorities (Score:4, Insightful)

    by westlake (615356) on Wednesday July 15, 2009 @12:52AM (#28700219)

    Ballot, Soap, Jury, Ammo; they should be used in that order.

    "Fair Use" usually boils down to the question of whether the geek with a broadband connection is entitled to his free movie fix - or has to stand in line with the peons at Blockbuster.

    I have said this before:

    The juror is not your comrade-in-arms, he does not share the geek's sense of entitlement. He is a middle-aged, middle class, small-C conservative who respects the system and has come to do a job.

    Let him define "fair use" and you risk being hammered into the ground like Jammie Thomas.

    Loose talk about guns casts the geek as a psychopath.


  • by Anonymous Coward on Wednesday July 15, 2009 @01:20AM (#28700377)

    You may also remember that in that era, juries trying cases involving someone who was white and someone who was not white had a strong tendency to find in favor of the party who happened to be white. On the other side of injustice by bad laws is injustice by bad juries.

    Furthermore, it's an awful habit to quote statistics without providing adequate context. Do you know what percentage of cases with comparable standards of evidence, etc. to a prohibition case were lost in that era? I'll admit that "less than 60%" seems like a reasonable guess, but it's nothing more than a reasonable guess until either of us does the research to confirm or deny it.

    Basically, your post is a textbook example of how to construct an argument that seems authoritative at first glance but completely overlooks valid counterpoints. Don't feel too bad. This is a learning process. Just try to stop doing this and next time you see someone make a fallacious post ignoring your sides points, you should probably try to meet them half-way and show that you can recognize their points in exchange them recognizing yours.

  • by Black Sabbath (118110) on Wednesday July 15, 2009 @03:39AM (#28700885) Homepage

    To add to my earlier post, it occurs to me that its the "widget" view that has led to the viral broadening of what is considered to constitute intellectual "property". When I observe a performance there is no "property" involved and certainly none changing hands.

    Another thought that comes to mind is the million-monkeys-bashing-out-Shapeskpeare view that says, if it can be thought-up someone will eventually think of it. It seems to lend itself to the view that its the use of the creation that adds value not the creations in and of themselves regardless whether that value is inspiration from art or the utility of some service provided. Its better to enrich the commons by contribution rather than deny it by exclusion. This does not deny the possibility for the creator to earn a living from the service provided through their work.

    Shakespeare's value is in the countless thousands his works have inspired. Is it possible to calculate how much poorer we would culturally be if the use of his work was strictly curtailed?

  • by L4t3r4lu5 (1216702) on Wednesday July 15, 2009 @05:13AM (#28701205)
    Right, so... Whether the terms content creators / publishers impose on your "ownership" of a product are fair or not, you still want to be able to use the product they sell? Yet you want all of this at the terms you? Who gave you the right? If you don't want to abide by a specific term or condition, you don't get to use the product. That's just not how a free market works, and you know it.

    I have absolutely no issue with any of what's going on except for two things:

    1. Corporate lobbying. Corporations should not be able to buy legislation. End of story.
    2. Government bailouts. In a free market, a business which fails is a business which fails. There's a reason for that failure; It's a sign that the business model or product is no longer financially lucrative, and the business needs to shape up or ship out. I'm bordering on refusing to pay any tax and risking imprisonment for this blatant disregard for free market economics. If the gooberment propped up every single failing business in the western world in this time of financial crysis, the World Bank would be (metaphorically, at least) empty.

    Nice rant, though. Eloquent, cites sources, and emotionally provocative. Too bad you missed the bigger picture.
  • by Talderas (1212466) on Wednesday July 15, 2009 @07:24AM (#28701669)

    This certainly would be a great rule to use, in the case where each party in an agreement offers fair terms. However, in the cases where one party imposes terms and conditions that a significant portion of the public perceives as unjust, then the public pirates/steals/recreates their benefits of the agreement. In each of those cases, the victim of the piracy/theft/recreation does not gain a thing. This is the public's revenge for creating unjust terms in the first place, and unfortunately the piracy/theft/recreation victim does suffer an actual loss in the case of theft (I like to think that if the public could just as easily create an actual copy of the desired device as steal it, they would make the copy, so this loss in the case of theft is mostly a secondary effect caused by physical constraints rather than a primary effect of obtaining the technology of the device). And the public gains technology.

    And all you do is show demand. Even by pirating the product you prop up this broken business model. The only way to destroy this model is to ultimately give up the product entirely, but that isn't going to happen because people feel entitled to the product which they aren't. We're going to stay in this shit cycle until those who don't like the current business model -entirely- give up the music produced via it. As long as you continue to pirate it, you perpetuate the very thing which you hate.

  • We must start with the US Constitution which has a clause permitting Congress to create copyright&patent law, but more specifically such law can only be created to the purpose of promoting progress and promoting more such creation for the benefit of society. So Congress created copyright law, and it pretty much said copying was prohibited, period. Very quickly it became clear that there was a problem, with the Supreme Court making a number of rulings. Consider a typical example of modern Fair Use, something like a newspaper reviewing a book and quoting a couple of key sentences. And just to help the example lets say the newspaper is bashing the book, saying that it is riddled with errors and just plain lousy writing. The newspaper can't effectively review and criticize the book without quoting some of the errors from the book and showing an example of the atrocious writing style from the book. It is often virtually impossible to write effective review or criticism without quoting anything, and under copyright law even the smallest quote is copying is prohibited. Copyright law was having the effect of pretty much prohibiting the writing and publications of reviews, and it was most particularly a problem that anyone writing negative review or criticism would get sued under copyright law. There is a double constitutional problem there. For one, the First Amendment guarantees the right to Free Speech. Copyright law was effectively prohibiting a broad class of speech, it was prohibiting effective review and most particularly having the effect of prohibiting negative point-of-view review and criticism. The second issue is that the REQUIRED function of copyright law is to promote the creation and publication of new creative works. Copyright law was functioning to virtually prohibit the creation of valuable new independent review and criticism. It is not so unusual for one part of the Constitution to wind up in conflict with another part of the Constitution, or even in conflict with itself. Many categories of Fair Use were established on 1st Amendment free speech grounds or other constitutional issues.

    Anyway, what happened is the Supreme Court got the case and saw that copyright Law was unconstitutionally prohibiting 1st Amendment protected free speech to review and criticism. When law does something unconstitutional that law is generally struck down as unconstitutional. Well, the Supreme Court apparently didn't relish the prospect of just plain striking down the entirety of copyright law and leaving it to congress to fix the problem by figuring out some new valid law to pass. Some call it "judicial activism", but the Supreme Court just plain invented the concept of "Fair Use", and they invented the idea that copyright law never actually attempted to do what the text of the law said it did. The text of copyright law prohibited copying, period, but the court decided that copyright law never actually tried to prohibit short quote-copying. Copyright law was not struck down as invalid because copyright law never actually tried to prohibit that copying. So the way Fair Use concept works is that copyright law is assumed to willingly flees when faced with any case of Fair Use. Copyright law would have to be struck down as invalid if it ever did actually attempt to restrict Fair Use.

    Fair Use is the only thing keeping copyright law from being struck down as invalid.

    Some people with a extremely aggressive views on copyright, people trying to diminish or eliminate Fair Use, they are very very misguided. If they actually succeeded in their efforts then copyright itself would be null and void, struck down as unconstitutional.

    Good job of explaining it. Too few people realize how integral fair use is to a rational interpretation of copyright law in the United States.

  • by L4t3r4lu5 (1216702) on Wednesday July 15, 2009 @08:19AM (#28701979)
    Thanks for your reply. One point sticks out to me, or at least was in my mind while I read the rest of the comment:

    This is the public's revenge for creating unjust terms in the first place

    That is unethical. "I don't agree with your terms, so I'm going to steal your product to spite you!" isn't the answer. Boycott, and voting with your money would be both ethical and effective, if enough would engage in it. The company has not straw-man of "piracy" or "theft" to brainwash shareholders terrified by slumping profits and bamboozle courts over infringement of imaginary property rights.

    The trouble is, everyone seems to want their cake, and eat it.


  • by geminidomino (614729) * on Wednesday July 15, 2009 @09:05AM (#28702385) Journal

    That is unethical. "I don't agree with your terms, so I'm going to steal your product to spite you!" isn't the answer.

    That's rather subjective. "Your rules are wrong and unjust, and we're going to ignore them" has worked rather well in the past.

    I don't know whether your misuse of the word "steal" is intended as the easily-recognized rhetorical overload, or if you honestly don't know the actual difference. You can't steal something that doesn't physically exist.

    Boycott, and voting with your money would be both ethical and effective, if enough would engage in it.

    Now you're bordering on naive. See below.

    The company has not straw-man of "piracy" or "theft" to brainwash shareholders terrified by slumping profits and bamboozle courts over infringement of imaginary property rights.

    It doesn't matter if there's not a single instance of downloading a single item in the company's entire library, if you think they're going to stop and go "Maybe we fucked up." to their shareholders instead of blaming faceless Pirates/Hong-Kong Bootleggers/Terrorists, you're living in fantasy-land. They're scapegoats that facilitate buck-passing.

  • by AnnoyaMooseCowherd (1352247) on Wednesday July 15, 2009 @09:30AM (#28702633)
    I can see what you are getting at, but I'm not sure your analogy is correct.

    Ignoring the fact that if I steal the car, the dealer no longer has a car to sell, whereas if I copy the car, he still does, there is still the issue of power.

    To have a real market, the buyer and seller have to have an equal footing, which is why attention is paid to things such as price fixing and other anti-trust issues.

    In the case of the car dealer, he does not have a monopoly and so his competitors can offer the same car under different terms and you, as the customer, can choose which offering suits your requirements the best. In this way a true marketplace exists and, other than the "no stealing rule", the government need not be involved.

    In the case of the entertainment industry, there is a monopoly - if you want to listen to a track by your favourite band, being offered the choice between that band and one you don't want to listen to, is no real choice at all.

    In this case however, rather than looking at this situation as a monopoly one and regulating in favour of the customer, in order to balance the market position, governments (perhaps as a result of lobbying) instead legislate in favour of the music industry, thereby distorting the market further and significantly disadvantaging the consumer by reducing their legal rights (e.g. not being able to take advantage of their fair use rights as this will contravene the industry's new rights to protect their encryption, etc)

    You might not agree, but it is not necessarily entirely surprising that, being put in such a disadvantaged position, the customers look to subvert the status quo, by circumventing the controls the seller tries to impose.
  • by Jason Levine (196982) on Wednesday July 15, 2009 @09:39AM (#28702731)

    I pretend not to notice when someone points out that the GPL relies on copyright law, and if I want to get rid of copyright, my beloved open source code will no longer be protected by the GPL.

    I think most people here would agree that copyright does have a valid place in society. The problem is that copyright terms have been overextended and copyright powers overemphasized. It used to be that your copyright on a work only lasted 14 years. Then you could apply for a one-time extension of 14 years. After that, your work landed in the Public Domain. Now the terms are 70 years after the author's death or, if owned by a company, 95 years after publication. Under the 14+14 rule, works created in 1981 should be hitting the Public Domain now. Instead, they'll hit in 2076 (assuming corporate ownership and no more copyright extensions - big assumptions, I know). This means that I likely won't live to see works hit the Public Domain which were created when I was 6 years old. Heck, a work created in 1974 (a year before I was born) and owned by a company is currently due to hit Public Domain in 2069 - when I'm 95 years old! It's even worse if the ownership isn't corporate. Take Michael Jackson, for example. Since he just died (and assuming he owns the copyrights to his songs), his copyright will end in the year 2079. His youngest child is currently 7 years old. When the Jackson copyrights end, his youngest child will be 77 years old!

    In addition to this, copyright owners are making more and more ridiculous assertions about their copyright ownership. The RIAA, for example, has tried to claim that ripping a CD to MP3 (purely for personal use) is a copyright violation. Of course, they aren't going around suing people for ripping their CDs, but they would love to get CD ripping banned.

    Copyright was supposed to give a balance between the author's right to seek a profit from his work and the public advancement of the arts. Authors would have an incentive to create works thanks to the temporary monopoly that copyright granted. In exchange, the public would get to do what they wanted with the work when that monopoly ended. In addition, since the copyright would end soon, the author had an incentive to make more works. What we have now, however, is the author being granted a monopoly that persists for generations after they pass away and little to no incentive (from copyright expiration) to create additional works. The public, meanwhile, is robbed of songs entering the Public Domain and fueling new works.

  • by illuvata (677144) on Wednesday July 15, 2009 @01:35PM (#28705585)

    You mean this [] site? It's still up, being updated, and in general shows no sign of having received a take down notice.

Machines certainly can solve problems, store information, correlate, and play games -- but not with pleasure. -- Leo Rosten