Judge May Take "Fair Use" Away From Jury 342
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."
unfair? (Score:1, Informative)
Having been a party in a lawsuit that was decided by the US Court of Appeals on the basis of an issue that was neither raised nor briefed at either the trial level or the appellate level, all I can say is that this sounds quite normal to me.
Jury Rights (Score:5, Informative)
Unfortunately, these rights like many our other rights have been eroded.
http://en.wikipedia.org/wiki/Citizens_Rule_Book [wikipedia.org]
http://www.geocities.com/Heartland/7006/rulebook.html [geocities.com]
The American Form of Government [youtube.com]
Re:Just continuing the trend of emasculating jurie (Score:3, Informative)
But we still have the 3rd Amendment inviolate!
You wish! A case can be made [georgetownlawjournal.com] that NSA wiretapping violates the third amendment.
Re:What is it with judges going beyond the law? (Score:5, Informative)
In this case the judge is adjudicating the law. There is a legal question about whether it is the province of the judge or jury to decide the value of a claim to the equitable defense of fair use. You might ask why that would be a question in the first place. Mr. Beckerman (aka NewYorkCountryLawyer) has presented his side, but allow me to summarize the issue in less biased language.
American law is in large part derived from English common law. The common law had, for historical reasons, two parallel systems of courts, law courts and equity courts (I am ignoring the admiralty and ecclesiastical courts for the sake of brevity). Legal claims were brought before law courts, and law courts could give legal remedies. Legal claims are what we would think of as most normal kinds of claims (trespass, breach of contract, etc), and legal remedies are typically money damages.
The courts of equity, on the other hand, heard equitable claims and granted equitable remedies. They also followed the rules of equity rather than legal rules. It is convenient (though somewhat imprecise) to say that where the law is concerned with hard and fast rules, equity is concerned with fairness. Thus, equity courts heard cases where the common law courts failed to administer justice, whether because a rule was unfair in the particular case or because no cause of action existed to cover the particular case. Equitable remedies were also more flexible than straightforward money damages: equity courts tended to give relief in the form of an injunction. So, for example, where the law might compel a defendant who stole a painting to pay the owner its value, equity would compel the defendant to return the actual painting because it is a unique thing that cannot truly be replaced for any price.
So, being a British colony, America inherited this dual court system. Although the federal courts and all states but Delaware have since merged the courts of law and equity, the distinction between legal & equitable claims, legal & equitable defenses, and legal & equitable relief remains.
What has any of this got to do with fair use and the jury? Well, although the law courts often had factual issues decided by juries, the equitable courts did not have juries. Thus, there is a long-standing precedent that issues of equity are decided by the judge, not the jury, and fair use has been described by many courts as an equitable defense to the legal claim of copyright infringement. If you recall from the description of equity above, it amounts to a claim that, even if the defendant did infringe the plaintiff's copyright, it would not be fair or just to hold the defendant liable in this case.
You may note that fair use is codified in 17 USC 107, but that is essentially a codification of the preexisting equitable defense. Thus, some courts have found that the codification into law did not destroy the essential equitable character of the defense.
On the other hand, there are a lot of court cases where the fair use defense was submitted to a jury. Now, it could be that that happened because the judges in those cases had the law wrong or that neither side brought up the issue and the default is to submit fact-intensive questions like fair use to the jury. Or it could be that those judges had the law correct and for various reasons fair use is a question of fact to be submitted to the jury. That is what the judge would like the sides in this case to brief her on, so that she can decide that legal question before the trial begins.
Re:Justifying piracy on Slashdot (Score:2, Informative)
I vaguely remember there being a site that posted the popular Slashdot articles of the day, like a "best of Slashdot," and Slashdot sent a legal takedown notice due to copyright infringement.
Re:Jury Rights (Score:5, Informative)
A page of history is worth a volume of logic, and a little history shows that this has nothing to do with the erosion of the power of juries.
Fair use was historically an equitable defense to copyright infringement, which means that it is a defense that would be brought in a court of equity. Courts of equity, unlike courts of law, never had juries. Even after the law and equity courts were merged in England and America, equitable issues remained the sole province of the judge.
The Seventh Amendment states: "In Suits at common law...the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
The point of the phrase 'at common law' is to distinguish legal cases from equitable cases. From the very beginning of this country, jurors have never had the right to make decisions regarding equitable claims, defenses, or remedies.
Furthermore, the phrase 'no fact tried by a jury' should serve as a reminder that the role of the jury in America has also never been to judge the law but rather to judge the facts. So, a jury would answer the question 'did the defendant strike the plaintiff without provocation' but not 'is it a tort for one person to strike another without provocation.' And in fact, if a jury decides to ignore the law and find a plainly liable defendant not liable, then the plaintiff is very likely to appeal on the basis that no rational jury could find as that jury did, which is the usual standard for overturning civil jury verdicts.
The only place where jury nullification actually 'works' is the criminal law, as a jury verdict of not guilty is generally unreviewable except for things like jury tampering. As a practical matter, however, jury selection usually eliminates any possibility that the jurors will all agree to ignore the law.
Wrong. (Score:1, Informative)
http://www.law.cornell.edu/rules/frcp/Rule49.htm [cornell.edu]
Re:You sure it's not Judge Judy? (Score:5, Informative)
...because that's the only female US Judge I'm familiar with.
You might want to pick up a newspaper more than once a year. A female US judge is the #1 news story in just about all of them for the last week.
Re:Justifying piracy on Slashdot (Score:3, Informative)
Don't mod him up just yet.
Couldn't do it if I tried, now that I've asked. I can't claim to fully agree with the poster, but I likes it when folks raise on-topic issues for debate. Notwithstanding my derailment, of course.
Good question, hard one to google, try a search for "Slashdot suing website"
Tell me about it. Although the AC under you might be on the right track...
I vaguely remember there being a site that posted the popular Slashdot articles of the day, like a "best of Slashdot,"
I'm not sure why, but that spurs a memory: Remember Diggdot? They got C&D'ed, but by Digg, not /. Might be what the OP was thinking of. Looks like their operating as Doggdot these days.
Just copypasta (Score:1, Informative)
This copypasta is posted in every article even slightly related to IP... nothing interesting about it.
Re:Achem. Mistrial. (Score:3, Informative)
It's intrinsic to the jury system. They can't MAKE you vote guilty. If the judge even suggests how you should vote, it's a mistrial. You are under no obligation to explain to anyone, even the other 11 jurors, why you vote not guilty. Given that, the only way to actually prevent nullification is to abolish juries.
Re:If you dig deeper, you will find... (Score:3, Informative)
...the judge is either an ex-lawyer of SONY or has a family member working in a high position in RIAA/MPAA. It always is the case. In fact i wouldn't be surprised if he has a financial interest in a RIAA member.
First, Judge Nancy Gertner is a woman. Second, her private practice work before becoming a judge was primarily criminal defense and civil rights. You may be interested to know that she has a blog [slate.com], and it is concerned with criminal law and civil rights. She has taught courses at Boston University, Harvard, and Yale, where she primarily taught classes on criminal law and civil rights. There is zero evidence that she or anyone she is closely connected with has anything to do with the RIAA or the MPAA.
Finally, district court judges in the United States do not get to pick and choose cases: most are assigned cases on a rotating basis. Even if Judge Gertner were a corrupt tool of the media companies, she might have gone her entire career without hearing a single copyright case. In any event, the salary and employment of federal judges is guaranteed for life (unless they are impeached by Congress and removed from office), so corruption of federal judges is very rare; they have too much job security and are paid too well to risk it.
Re:Justifying piracy on Slashdot (Score:5, Informative)
You get points for a cleverly presented argument. Here are a few thoughts of my own, slightly less entertainingly put:
Consider the music industry. Originally, musicians were recompensed for performances. Musicians were service providers. Then the ability to record music came along, and the model switched from service provision, to primarily widget distribution. In this instance, the widgets were LPs whose manufacture and supply was limited due to the difficulty of making perfect copies (each generation of copy would degrade the signal).
The current music industry organisations would love to perpetuate the "widget distribution" model. Unfortunately, the advent of digital technology means the constraint on perfect copies has been smashed. The industry is trying its hardest to close the stable door after the horse has bolted by throwing up various technical and legal hurdles to "perfect copy" distribution. Despite their best attempts they are failing. The market quite clearly is answering with its feet. If copyright violation is a crime then a massive chunk of the population are criminals.
What the music industry need to accept is that the business model is changing back from widget distribution to primarily service provision (i.e. performances). This is similar to the effect open source is having on the software industry, changing the model (in some spaces) to profit from service provision rather than box sales.
Having accepted that the industry model is changing back to service provision, free digital music distribution can be considered low cost advertising for the performers. The fact that some segments of the music industry around packaging and sales (arguably less important than the artists) will be made redundant is just tough. They will find other jobs and the title of "record industry executive" will join blacksmith, phrenologist and horse-and-buggy repairman in the history books.
The same transition happened with performance art: live performances/plays turned into movies. What will movies turn into? Will there be a resurgence of live performances? Or perhaps the astronomical costs of movies needs to just come down a bit to make them more statistically likely to be profitable?
Software is already making the transition as stated before. Open source as well as the advent of leased services from the cloud are putting a slow but inexorable end to box sales.
Books are an interesting case. I don't know how that industry will pan out. Some authors however are embracing the new opportunities. Some people - even "selfish leechers" like myself - are happy to pay for books. On that point, I should point out that in the last 12 months I have been to the concerts of three big acts and forked over almost $500 in tickets and merchandising. A large proportion of that money will go straight to the artists' pockets - far more so than if I had spent $500 on their CDs/DVDs.
Summarized in plain English (Score:3, Informative)
What the decision is saying is this:
1) historically, a type of legal question known as an "equitable" claim (or equitable defense) has been decided by the judge, not a jury [for ancient historical reasons I won't get into here on Slashdot]
2) there are some cases which refer to copyright fair use as an equitable defense but it's not clear if those cases are using the term "equitable" as that term is used in (1)
3) some cases have put the fair use defense to the jury to decide, but without considering the issue I have described in (1) and (2)
4) I'd like the parties to tell me, in writing, what they think the correct answer to this issue is, and why
5) once I get the written submissions in (4), I'll decide whether the judge or the jury should rule on the copyright fair use defense
Re:Just Remember (Score:2, Informative)
http://www.theatlantic.com/doc/200812/hitchens-suburbs [theatlantic.com]
Published in 1961 and set in 1955, this psychodrama of an ambitiously named development in Connecticut (the source of Yatesâ(TM)s superbly misleading title) recalls us to the period that saw the publication of David Riesman's The Lonely Crowd (1950), Sloan Wilson's novel The Man in the Gray Flannel Suit (1955), the pop sociology of men like William H. Whyte and Vance Packard, whose critiques The Organization Man (1956) and The Hidden Persuaders (1957) made American business seem impersonal and cynical, and-if this isn't too fanciful-Edward Albee's Who's Afraid of Virginia Woolf? and Malvina Reynolds's song "Little Boxes," both of which made their debut in 1962. Pete Seeger had a huge success of his own with the song, which ridiculed the harmless citizens of Daly City, California, and gave us the word ticky-tacky. No less a man than Tom Lehrer was to say that it was "the most sanctimonious song ever written,"
Oh snap!
Comment removed (Score:3, Informative)
Re:All this negativity-- am I missing something? (Score:4, Informative)
What I do know is that
-there are essentially 2 cases here, an injunction case and a money damages case;
-the injunction case is tried by the judge, the damages case by the jury,
-the fair use defense is a defense to both,
-the jury gets to decide it for the money damages case, the judge for the injunction side of the case.