Forwarded conversation
\nSubject: [eon] Comment: “who is the proper decisionmaker on questions of fair use — the judge or a jury”
\n————————<\/p>\n
From: William Patry
\nDate: Sun, Jul 19, 2009 at 9:41 PM
\nTo: nesson@gmail.com<\/p>\n
New comment on your post #1064 “who is the proper decisionmaker on questions of fair use — the judge or a jury”
\nAuthor : William Patry (IP: 68.198.55.157 , ool-44c6379d.dyn.optonline.net)
\nE-mail : Williampatry@yahoo.com
\nURL : http:\/\/PatryCopyrightBlog
\nWhois : http:\/\/ws.arin.net\/cgi-bin\/whois.pl?queryinput=68.198.55.157
\nComment:
\nI am not aware of any case holding that where there is a disputed issue of fact on fair use, a jury cannot decide the issue. The occasional statements about fair use being an equitable defense are, in my opinion ahistorical (Judge Leval agrees). The characterization about fair use being a mixed question of law and fact, which originated I believe with the 11th circuit in one of its early Pacific & Southern v. Duncan cases, concerned only appellate review. Here is a longer discussion (footnotes omitted) of that case from the section Peter Friedman cited my from treatise (thanks Peter!)<\/p>\n
“In Harper & Row, Publishers, Inc. v. Nation Enterprises,
\nthe Court, citing as the only authority the Eleventh Circuit’s
\nopinion in Pacific & Southern Co. v. Duncan,2 stated:
\nFair use is a mixed question of law and fact , Pacific &
\nSouthern Co. v. Duncan . . . Where the district court has found
\nfacts sufficient to evaluate each of the statutory factors, an ap-
\npellate court \u201cneed not remand for further fact finding . . .
\n[but] may conclude as a matter of law that [the challenged
\nuse] [does] not qualify as a fair use of the copyrighted work.\u201d<\/p>\n
This modest statement has, unfortunately, been grieviously ously misunderstood and, as a result, applied in unintended
\nways. Pacific & Southern Co. was an appeal from a bench
\ntrial. What motivated the Eleventh Circuit’s characteriza-
\ntion of fair use as a mixed question of law and fact was its
\nconclusion that the district court had engaged in an errone-
\nous interpretation of the law by refusing to analyze fair use
\nunder the second, third, and fourth statutory factors\u2014rely-
\ning on a mistaken judgment that a failure to make a produc-
\ntive use under the first fair use factor ended the fair use
\ninquiry.The court of appeals, noting the statute’s use of the
\nmandatory term \u201cshall\u201d in directing courts to examine all
\nfour statutory factors, ruled the district court acted contrary
\nto the statute by analyzing the use only under the first
\nfactor . The court of appeals nevertheless affirmed the
\ndistrict court’s rejection of fair use because as a result of the
\nbench trial, the district court had already found the facts,
\nand the court of appeals needed only to apply the correct
\nlegal standard. Pacific & Southern thus involved a run-of-
\nthe-mill legal problem: the court of appeals, interpreting a
\nstatute, held that \u201cshall\u201d means \u201cmust,\u201d and thus found legal
\nerror in the trial court’s refusal to evaluate the use under all
\nfour factors as commanded by Congress. But as all fact finding had occurred, there was no need for a remand.
\nHarper & Row\u2019s statement, citing Pacific & Southern that
\nfair use is a mixed question of law and fact, should therefore
\nbe applied solely to appellate review of erroneous applica-
\ntions of law. Where the district court has correctly applied
\nthe relevant law, or a jury has decided the issue under proper
\ninstructions, the standard of review is the clearly erroneous
\nstandard. Any other approach would be inconsistent with
\nthe right to a jury to decide fair use, a right recognized by all
\ncircuits, including the Eleventh.<\/p>\n
You can see all comments on this post here:
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———-
\nFrom: Charles Nesson
\nDate: Sun, Jul 19, 2009 at 9:45 PM
\nTo: Williampatry@yahoo.com<\/p>\n
thanks. glad to have such well-grounded support
\n—
\n——
\nwhen appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.<\/p>\n
———-
\nFrom: William Patry
\nDate: Mon, Jul 20, 2009 at 7:29 AM
\nTo: nesson@law.harvard.edu<\/p>\n
Hi Professor Nesson, thanks for having such an open forum. By the way, I have a new book coming out in about three weeks (the amazon.com date is off) I think will interest you (you are quoted on page 29 for your “urban legend” remarks in the Tenenbaum case).<\/p>\n
It’s called “Moral Panics and the Copyright Wars”. Here’s the link:<\/p>\n