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."
What is it with judges going beyond the law? (Score:5, Interesting)
NYCL, perhaps you can enlighten us all - it seems to me of late that more judges are going beyond what I understand is the scope of a judge's job (to adjudicate the law) and into "deciding" cases based on matters OUTSIDE the scope of law.
Am I misremembering what I learned back in 6th grade about the role of the judiciary in the legal system, or are these judges indeed going beyond the scope of their position?
The Law is complicated. (Score:4, Interesting)
The Law is complicated--it's not a simple system of rules, it's a question of what words have people used to describe what they think the rules ought to be for the past five hundred years or so, how have those descriptions changed the rules as people have decided what they should mean, and it's not easy to get it right 100% of the time--particularly when you realize something about the law that may be inconsistent or mean that it should be handled in a slightly different way than how people thought. The issue here isn't necessarily the judge going beyond the judge's duties--especially since if that's really what's happening an appeals court will generally say so--as it is the fact that the judge only gave the lawyers a few days to research it. The law moves at a lethargic pace; six days is like a clock cycle in ALU-time.
Re:That (Score:1, Interesting)
bribe! cough, bribe! cak- bribe!
IANAL, but you are right (Score:4, Interesting)
Judges decide matters of law, juries decide matters of fact.
Something like fair use could be either, depending on the circumstances. Contract law is a good example. Suppose that there is a case about a contract: If the contract is clearly written, and its meaning is easily determined by reading it, a judge will decide; based on law. On the other hand, if the contract's meaning isn't obvious, witnesses might be called to clarify what the intent of the signing parties was. In that case, there may be a dispute about facts and a jury would decide.
Of course, the judge may make a mistake about who decides and, in that case, there would probably be an appeal.
Re:Achem. Mistrial. (Score:5, Interesting)
In any event, I don't know why everyone is making such a big deal out of this. The judge hasn't made any binding decisions, she just raised an issue. This happens all the time.
Furthermore, even if she did decide fair use herself I am not convinced this would produce a worse result in this case. Juries are unpredictable (see the $1.9 million verdict against Jammie Thomas). Having a learned judge decide an (arguably) legal position isn't the end of the world.
Re:Achem. Mistrial. (Score:5, Interesting)
It's both.
" The jury has the right to judge both the law as well as the fact in controversy. "
--John Jay, first Chief Justice of the United States[4]
http://en.wikipedia.org/wiki/Jury_nullification [wikipedia.org]
Jury nullification has an important role in removing bad laws. For example, 60% of cases brought against prohibition were lost in the US, due mainly to jury nulltificatin (no one would convince anyone for it). This eventually led to the law being repealed.
Judge Gertner rocks. (Score:4, Interesting)
Re:Automatic Appeal? (Score:3, Interesting)
It does sound like the court is going to end up issuing a decision that somehow formalizes what fair use includes. That's not even something an appellate court would normally risk taking on. It's more something the Supreme Court might consider doing. If it does happen, watch for the judge to only elaborate on one point of fair use, say deciding that region shifting is as legitmate as time shifting per analogy with the Betamax case. I really can't see any trial judge giving us a big list of new examples of fair use and exemptions from fair use, and detailing all sorts of subsidiary limitations. It's ballsy as all get out to try for just one. It almost seems like the judge is begging for an appeal that will have to go all the way to the very top.
Re:Automatic Appeal? (Score:3, Interesting)
Begging for an appeal maybe, but the appellate would probably refer it back to trial to have a jury decide.
Re:Automatic Appeal? (Score:2, Interesting)
It is, but then you open up a whole can of FUBAR over judicial powers in the meantime. This is basically a judge saying "you cannot use this defense". By extension, ANY defense that is deemed "equitable" isn't permitted either.
Re:Jury Rights (Score:4, Interesting)
No, you can't tell the judge you believe in Nullification. Judges and most lawyers are against the very idea of nullification. You can still legally implement it though. But if a judge even gets a hint that your trying before the verdict is read, your out.
All this negativity-- am I missing something? (Score:3, Interesting)
NYCL and others who know a thing or two about USA law:
My understanding at the moment is that if a Judge decides that the issue is an equitable one rather than a legal one, there is no need for a jury. And that in an equitable case, the Judge's duty is to determine what is fair compensation for the actual damages done. It doesn't seem like there can be any punitive damages awarded in an equity judgment.
Would this mean that Judge Gerstner could decide in favor of the RIAA, and award them compensation based on $0.79 per proven instance of copyright infringement, if that seemed the fair thing to do?
It would seem that if she decides this is an issue of equity, then the awards written into the DMCA would be guidelines that she might feel would only apply to commercial infringers who press a hundred thousand copies of a CD (which is apparently the kind of infringement that the USA Congress had in mind when they wrote the law). That it would not be equitable to impose those fines on a casual copyright infringer who may have cost the record companies a dozen sales (if that). So maybe this is a good thing?
I am so confused.
Re:Justifying piracy on Slashdot (Score:5, Interesting)
Dear misinformed,
Due to the advent of technological advancement and the internet, formerly scarce works have become common and easily downloaded due to the non scarce nature of information, this has got westerners and excessively pro corporate, pro business peoples panties in a twist from which they have never recovered. Capitalist philosophy only makes sense when an item a person wants to consume is scarce, otherwise the "evil" socialist economics can work (and piracy is a lesson in that it works FYI). Therefore copyright has become a highly charged issue because nature of information and political economic ideology of western capitalism are at odds.
According to neoclassical economics because of the non scarce nature of digital works, their worth should be driven down towards zero and many businesses should be going bankrupt, note that this has not happened and the Movie industry has recently broken box office records. Please refer to Dark Knight released in 2008 in the following list below of top grossing box office movies of all time.
http://www.movieweb.com/movies/boxoffice/alltime.php [movieweb.com]
The nature of copyright and software licensing has always been questionable from the outset, because the public was not informed enough to mount resistance to the idea of software licensing and EULA's. So many industries got their way by way of public ignorance. Industries later gathered together lobbying more as the internet rose to power and their response to non scarcity of information was in the form of the DMCA
http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act [wikipedia.org]
Which added to the already dubious practice of licensing software (individuals never own their software) which most nerds have always thought dubious at best (See: Linux)
The advent of the DMCA and licensing prevents legitimate owners of software from outright owning and modifying what they bought due to crazy EULA's and liscensing that weaseled it's way into "normalcy" due to public technological ignorance, which attempted to limit software owners rights to ownership and rights to develop their own software to work with the software they already own. This has pissed off the informed who understand these issues. See: Bnetd
http://www.eff.org/cases/blizzard-v-bnetd [eff.org]
Corporations and the bad kinds of capitalists alike have been trying to wrest individual ownership from the people by infringing on their individual rights to own the products they buy. Software companies have always been one of the worst industries due to the idea of licensing software to individuals, rather then individuals being able to own software outright and do whatever they wish with it.
Enterprising individuals like John carmack who released open source doom, etc, and Volition Inc of Freespace 2 fame (see: http://scp.indiegames.us/ [indiegames.us] ) have been breaths of fresh air for the informed among us as they understand the deeper issues of software patents, copyright and software ownership by and large.
John carmack does not believe in software patents, and is tired of the stupid shit that such patents and overzealous and excessive copyright abuses, to see his frustrations and problems with such see here:
http://arstechnica.com/old/content/2004/07/4048.ars [arstechnica.com]
The slashdot community has been getting pissed at the lack of reasoning power in hypercapitalist america, it seems in general that america has an excessive amount of brain dead people and anti-intellectualism, and the rise of super corporate indoctrinated nerd drones, this anti intellectualism and lack of intellectual depth increasingly found in certain americans or others so indoctrinated against intellectual understanding is epitomized in the following link
Re:Hey... that's not FAIR! (Score:1, Interesting)
Oh, wait,..... Isn't our government "Of the people, for the people, and by the people?", I mean, aren't we (the people as a whole) supposed to make decisions about what is fair/legal/moral/... and whats not?
Re:What is it with judges going beyond the law? (Score:5, Interesting)
"Fair Use" ...like breaking the law in a way that has been designated as fair, and therefore unpunishable?
No, that wouldn't be a good way to put it.
I think the most informative answer is to explain the very origin of the term. 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.
-
Re:Justifying piracy on Slashdot (Score:3, Interesting)
And Robin Pecknold of Fleet Foxes think so for an entirely different reason "As much music as musicians can hear, that will only make music richer as an artform,". http://news.bbc.co.uk/2/hi/entertainment/8097324.stm [bbc.co.uk]
Re:Just continuing the trend of emasculating jurie (Score:3, Interesting)
I was on a jury for a GBH case, lasted 5 days. At the end of the 5 days, I realised that:
- Three of the jurors didn't understand what the judge told them or what the barristers were asking, and didn't bother to ask for clarification. They just looked at the people in the dock and made up their mind based upon whether they "looked like they did it."
- Four understood, but didn't really take it seriously. It was a holiday for them, a time away from work. Needless to say these were the people who worked as a subordinate to someone else, so they still had income.
- Two were self employed. They didn't talk about anything else apart from how much money they were losing, and constantly rushed any decision.
- Two (myself and a young lady, of like mind to myself) took it seriously. We were deciding the far-reaching future of some young people charged with a terrible crime, and we did our best to help the others understand points of law, asked pertinent questions of the judge, and pretty much lead the deliberation.
There's one more person in this jury that i've not mentioned. I've saved the best until last. A young man, early twenties. All I can say about him is that he was bored. Bored by the whole thing. He constantly shuffled in his chair, hummed to himself in court, and as we entered court before we gave our verdict he hummed the death march.
If those are the people who decide my future, should I ever end up in court, I sincerely hope it is left up to a judge.
Don't remeber that (Score:1, Interesting)
Remember:
"Do we really want this sort of action to be punished like this?"
and
"Was this what they had in mind when they wrote that law?"
THAT is the reason why Jury Nullification exists.
An unjust law can still be passed. A police officer can decide not to prosecute it. If he does, the prosecuter can decide not to persue. If he does, the judge can decide not to judge the case. If he does the jury can decide not to pronounce guilty.
A bad law without the jury deciding if that law needs to be applied here is a bad law that can be finessed into reality despite it being bad.
Re:Justifying piracy on Slashdot (Score:2, Interesting)
Blacksmith is still a viable industry (ok not as much as it was in "olden times") but the blacksmith I used to work at has expanded and had to open a second workshop in the nearby town to keep up with business. It's not just making horseshoes these days.
Re:Justifying piracy on Slashdot (Score:2, Interesting)
You are right about the use adding value. It occurs to me that licensing to internet radio stations is an alternative for RIAA execs, but in reality something like that isn't nearly as complicated as what goes into fine-tuning a final recording these days, and could be handled by indie music makers with some minor counsel. Let's not get into the pay-per-use argument for media though, if the public let that model succeed, we'd all be daily criminals. No, the way forward is for the market to adjust to the conditions it now faces, but I'll not be redundant about digital media from above.
As to Shakespeares' value, you're right about the works inspired by him, and you are right about the current scene being poorer if his material was managed with modern mindsets about media, but no matter how much the media companies would love to push it, having multi-century monopolies on anything not only cripples innovation, such as adaptions of Shakespeares' work, but would also create a slow pressure of discontent from customers and artists alike, much like the public backlash to DRM or tongue-in-cheek slang like the Copyright Term Extension Act [wikipedia.org] being synonymous to "The Mickey Mouse Protection Act [wikipedia.org]", only worse.
Re:Justifying piracy on Slashdot (Score:4, Interesting)
That used to be true, but isn't any more. From personal conversations with successful bands (The Living End and Hilltop Hoods) I know that the days of bands being screwed around by record labels – the Courtney Love model – are in decline. Bands can now make plenty of money off CD/electronic music sales. Plenty of bands even use tours as "loss leaders" to promote themselves in areas where their exposure is low to guage reception and generate music sales. As example I again refer to the two aforementioned bands' tours in (continental) Europe.
Conclusion: some bands make more from touring, others from music sales. The relationship varies from band to band, from tour to tour, and even from album to album depending on what sort of contract they have. The popular generalisation that merch and concerts support bands more than CD sales isn't as true now as it was 10 years ago.
(As an aside: the rest of your post is insightful and I agree with near all of it)
Re:Jury Rights (Score:3, Interesting)
No, you can't tell the judge you believe in Nullification. Judges and most lawyers are against the very idea of nullification. You can still legally implement it though. But if a judge even gets a hint that your trying before the verdict is read, your out.
That's nice and is never brought up in these discussions. Note that the judge in my case actually asked the jury pool (something like): "Does everyone agree that you have to follow all of the judge's instructions on legal issues?"
Assuming that's common, then I actually have to set out to lie in order to get on a jury, and frankly, I don't even want to be there that bad.
Re:But why not? The system is broken (Score:3, Interesting)
> The judge should not be changing rules mid stream.
You got it in one. :)
Judges don't make laws or decide which ones to use. That is what We The People elect a legislature for. They make the laws constrained by the limits spelled out in a Constitution. The Constitution (State or Federal) isn't sacrosanct, but it is designed to be hard enough to change that it provides some protection against poorly thought through changes made in response to momentary passions.
So if enough folks can be convinced that trial by jury creates more problems than it solves just go in and strike those parts of the 6th and 7th Amendments. I won't be joining that movement any more than I join the perennial calls to abolish the Electoral College. I understand why those things are important, in spite of their downsides.
Re:The Law is complicated. (Score:2, Interesting)