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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 @08:49PM (#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 @08:54PM (#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?
    • Re: (Score:3, Interesting)

      by Artifakt (700173)

      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 f

    • Re: (Score:3, Interesting)

      by Repossessed (1117929)

      Begging for an appeal maybe, but the appellate would probably refer it back to trial to have a jury decide.

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      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.

  • Just Remember (Score:5, Insightful)

    by bky1701 (979071) on Tuesday July 14, 2009 @09:05PM (#28699111) Homepage
    Ballot, Soap, Jury, Ammo; they should be used in that order.
    • by exley (221867) on Tuesday July 14, 2009 @09:24PM (#28699243) Homepage

      Around here I think soap should be first in that list... I mean, sheesh, people.

    • Re: (Score:3, Funny)

      by mrmeval (662166)

      Bathe first dammit! Stinking while in line to vote is just wrong.

    • Re: (Score:3, Insightful)

      by DoofusOfDeath (636671)

      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.

    • You might want to prefix that with something along the lines of "There are four boxes to use in the defense of liberties: ..."

      However, it's arguable as to whether that's really applicable in this particular instance. If you're downloading a crapload of MP3s and sticking them on your iPod to listen to, then that's hardly fair use. If a student is being sued for using music in an instructional video, then yeah... start going through the boxes.

    • by monkeySauce (562927) on Tuesday July 14, 2009 @09:59PM (#28699523) Journal

      OK, boxes of ballots, bars of soap... they all become lethal projectiles at sufficient speed, but I don't understand the jury. Why not just launch jurors one at a time? It would require greater targeting precision but you would need a lot less energy, and it should make your reload time a lot shorter.

      • Re: (Score:3, Funny)

        by daveime (1253762)

        Ah, you obviously haven't considered the Bergholt Stuttley (Bloody Stupid) Johnson's Patented 12-Gang Jury Launcher, with Optional Side Mounted Judge and Stenotypist Trebuchets.

    • by HTH NE1 (675604)

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

      And since according to this they're already denying the use of the jury box, well, you have three guesses what's next.

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

      So, just to be clear, you're saying that if this decision goes awry at the jury level, you're ready to shoot people?

      Just checking...

    • Priorities (Score:4, Insightful)

      by westlake (615356) on Tuesday July 14, 2009 @11:52PM (#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.

       

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

      Comma he said, apropos of nothing at all .

  • by wowbagger (69688) on Tuesday July 14, 2009 @09:05PM (#28699115) Homepage Journal

    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?

    • by Anonymous Coward on Tuesday July 14, 2009 @09:18PM (#28699197)

      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.

      • and it's a multicycle ALU! :P
    • by Anonymous Coward on Tuesday July 14, 2009 @09:42PM (#28699371)

      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: (Score:3, Insightful)

        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.

        • Re: (Score:3, Informative)

          by asifyoucare (302582)

          For a particular kind of vagueness, (ambiguity) yes. If a term can be fairly interpreted two distinct ways and the parties are arguing about it, the term will be interpreted against the party that insisted on that term being part of the contract. See Contra Proferentem [wikipedia.org].

    • I believe the term is called "legislating from the bench".

    • by Grond (15515) on Tuesday July 14, 2009 @10:08PM (#28699577) Homepage

      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.

      • by Bigjeff5 (1143585)

        Damn dude, very nice.

        It sounds like you're saying "Fair Use" boils down to not so much a defined legal exception to Copyright, but more like breaking the law in a way that has been designated as fair, and therefore unpunishable? Is that a confusing but more or less accurate way of looking at it?

        • by Alsee (515537) on Wednesday July 15, 2009 @03:25AM (#28701019) Homepage

          "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.

          -

          • 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 Kligat (1244968) on Tuesday July 14, 2009 @09:07PM (#28699129)

    There are dull incandescent bulbs hung down by wire over a set of towering oak podiums. Behind you are endless rows of rusty metal folding chairs, all occupied by elephants and donkeys, except for a few rats toward the front. The bailiff is an Argrue, standing in the shady area against the wall. You don't know what an Argrue is, but you can guess it's like what Arkansas is to Kansas and it looks vicious.

    The judge uses a battle axe in place of a gavel, which would be fine if it didn't leave so many marks on the wood when it's banged, and wears an ancient Norse viking helmet. The smaller podium has a guillotine attached to it near the front, with the microphone being placed in front of the slot where you would place your head.

    You have in your inventory a rope, which is binding your hands together, and a bright orange jumpsuit of -255 AGI, which you are currently wearing. The only exit is DOWN, through a trap door.

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

    I long for the days when juries (before the 2nd half of the 20th century) actually decided cases and where not treated like mushrooms by all.

    Jordan

    • by jmorris42 (1458) * <jmorris&beau,org> on Tuesday July 14, 2009 @09:18PM (#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.

      • Re: (Score:3, Informative)

        by Jeremy Erwin (2054)

        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: (Score:3, Interesting)

        by L4t3r4lu5 (1216702)
        Juries are populated by the populace, and the populace are sheeple. They're inconvenienced by jury duty! They hold the whole service in contempt!

        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 understo
  • depends... (Score:3, Funny)

    by gandhi_2 (1108023) on Tuesday July 14, 2009 @09:15PM (#28699183) Homepage
  • That (Score:5, Insightful)

    by Dunbal (464142) on Tuesday July 14, 2009 @09:15PM (#28699187)

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

  • Jury Rights (Score:5, Informative)

    by pilsner.urquell (734632) on Tuesday July 14, 2009 @09:20PM (#28699211)
    In the United States of America Jurors are the only citizens who who are above the law. 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.

    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:Jury Rights (Score:4, Insightful)

      by Daniel Dvorkin (106857) * on Tuesday July 14, 2009 @09:37PM (#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:Jury Rights (Score:4, Insightful)

      by dcollins (135727) on Tuesday July 14, 2009 @10:17PM (#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?)

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

        by MindStalker (22827) <mindstalker AT gmail DOT com> on Tuesday July 14, 2009 @11:25PM (#28700069) Journal

        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.

        • Which.. is appears to be an excellent way to get out of jury duty without sounding like you're intentionally trying to get out of jury duty. :D
        • Re: (Score:3, Interesting)

          by dcollins (135727)

          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, th

    • Re:Jury Rights (Score:5, Informative)

      by Grond (15515) on Tuesday July 14, 2009 @10:23PM (#28699655) Homepage

      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.

    • by westlake (615356)

      if the jury believes a law to be wrong or a bad law they can disregard the law and rule against it.

      The only truly final decision an American jury can make is a verdict of "Not Guilty" in a criminal trial.

      In an ordinary civil trial a judge can set aside a verdict that is against the law and the facts.

      But the judge and jury are usually cut from the same cloth, on the same wavelength....

      Nullification tends to send the innocent man to the gallows or frees the KKK to kill again.

      The geek goes into court expecti

  • The judge is attempting to countermand the authority of the jury? Ah, I think someone's rusty on their Constitution. Jury's in this country have the ability to declare the law itself unconstitutional or cruel and unusual and have it struck down. It's not something judges like to advertise, and this one is probably concerned that they might wake up and say "hey wait a minute...", remember their Constitutional readings from high school, and put a big fat bullet in the entire debate.

    Either that, or the judge w

    • by Daniel Dvorkin (106857) * on Tuesday July 14, 2009 @09:32PM (#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 @09:35PM (#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: (Score:2, Insightful)

          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

          • Re:Achem. Mistrial. (Score:5, Interesting)

            by brunes69 (86786) <slashdot@keirste ... minus physicist> on Tuesday July 14, 2009 @09:54PM (#28699461) Homepage

            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.

            • Re: (Score:2, Insightful)

              by Anonymous Coward

              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

      • Jury nullification (Score:5, Insightful)

        by jmorris42 (1458) * <jmorris&beau,org> on Tuesday July 14, 2009 @09:50PM (#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.

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

        It's been upheld, even exhorted by SCOTUS on several occasions from the earliest of times to recent history. You can find the relevant decisions easily enough.

      • by shentino (1139071)
        Jury nullification is a concept derived from the combination of double jeopardy and trial by jury.
      • by Lehk228 (705449)
        it's inherent to the jury system because the jury cannot be punished for it's decision. at least not yet (BTW, for the 4 box crowd, attempting to change this would be an appropriate reason to go to box #4)
      • Re: (Score:3, Informative)

        by sjames (1099)

        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:Achem. Mistrial. (Score:5, Interesting)

      by sys.stdout.write (1551563) on Tuesday July 14, 2009 @09:52PM (#28699449)
      Reading legal advice from people on Slashdot is a bit like reading music reviews from people on a Britney Spears Fan Club website.

      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.
  • t also seems a bit unfair to bring up a totally new issue

    So this court and law stuff is supposed to be all about fairness?? It seems like it's always a lawyer fucking somebody, the judge fucking you over, or lawyers fucking each other, or a lawyer fucking their client, or two people fucking each other, while their lawyers fuck them too and the judge is just watching.
    Yeah I really though court was just about fucking people.

  • Judge Gertner rocks. (Score:4, Interesting)

    by Anonymous Coward on Tuesday July 14, 2009 @10:07PM (#28699565)
    - I've had Judge Gertner save my ass. She's very smart, sees through nonsense, very willing to take on authority, government, etc. - It's not whether you can send fair use to a jury, it's whether you have to. If it's equitable with no damages, it can be handled every time by summary judgment even if there are issues of fact. - Juries are shitty at all complex civil matters; terminally shitty at intellectual property; and the U.S. marriage to civil juries is unusual and kind of stupid. If imprisonment is what's at stake, juries make sense. If it's about a TRO or civil damages for some kind of abstract infringement, juries make no sense. Other countries under common law and substantially similar copyright law would not use a jury. - Don't get all patriotic. Civil jury mistakes and artifacts are a core reason why the U.S. is polluted with so many lawyers, and so many rich lawyers. - Don't assume fair use is better before a jury. It's just more random. - It's odd for Judge Gertner to bring it up, agreed. But if it's a watershed issue both parties obviously should have been pursuing given their positions, but were afraid to touch, it's something she would do. - Slashdot is such an incredible fountain of ignorance, isn't it?
    • by b4upoo (166390)

      Sadly we may have as many ignorant judges as ignorant juries. And we also have laws which either contradict other laws or add up in such a way that a group of laws acting in concert cause outcomes that are weird or opposite of reason.For example Wells Fargo recently ended up suing itself due to weird circumstances and laws.

  • Back when the scientologists first sued him for breaking copyright on one of Hubbard's sillier screeds (he made a copy to give to the judge in Grady Ward's case), he wasn't allowed to claim that copying a work to bring it to the attention of law enforcement was fair use. The jury never got to hear the argument.

    -jcr

  • I heard there was one that formed in Canada. Has one been set up in the US yet?
  • 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.

  • The tax payers are the ones who take it in the neck while these endless court cases go on and on. How many billions in tax dollars does it take to support courts hearing copyright cases every year? It's like pornography or abortion in the courts and in congress. It just keeps running up expenses. Maybe these types of cases should not be allowed in the justice system at all.

  • by Phocas (147850) on Wednesday July 15, 2009 @12:56AM (#28700541)

    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

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