Slashdot Mirror
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."
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?
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.
Yea, the full list should read:
Ballot, Soap, Jury, Ammo, Soap on a Rope
Rules of Conduct:
#1 - The DM is always right.
#2 - If the DM is wrong, see rule #1
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.
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.
...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.
...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.
I never knew Michael Jackson was a female US judge.
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.
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
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
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
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/ ) 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
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
"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.
-
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
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.
Finally had enough. Come see us over at https://soylentnews.org/