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Judge May Take "Fair Use" Away From Jury
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."
Hey... that's not FAIR, to take away FAIR USE. :)
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?
Ballot, Soap, Jury, Ammo; they should be used in that order.
Great Intellect...
Makes perfect sense. After all, fair use has been taken away from everyone else.
Seven puppies were harmed during the making of this post.
> 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.
Democrat delenda est
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.
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