Juries and Fair Use

by Derek Bambauer

Friday, December 11, 2009 at 12:19 PM EST

The Harvard Crimson’s Xi Yu has a good article today about the Tenenbaum case and its prospects on appeal. She kindly asked me for my thoughts on the case’s future. I want to expand a bit on how I see fair use. (Ah, yes, a “clarification” – I haven’t felt so much like a politician since I took those campaign contributions in return for my vote in a faculty meeting.) As copyright folks know, fair use is messy, case-specific, and fact-intensive; it’s a muddy standard and not a crystal rule. Thus, it’s generally something that ought to be handled by juries, upon which we depend for resolution of tough fact issues.

However, I don’t think that Tenenbaum was correct in arguing that his fair use claim should go before a jury. Judge Gertner rightly disposed of his fair use argument on summary judgment, for two reasons. First, Tenenbaum failed to support adequately his position under the four-factor test for fair use (see 17 U.S.C. 107). While those four factors aren’t exclusive, they are set forth as exemplars in the statute, and slighting them is a perilous strategy. It failed here and it deserved to.

Second, Tenenbaum’s ultimate argument was not about whether he fell within fair use. It was about re-writing fair use – asking the jury to nullify an otherwise airtight case of infringement because they disliked how Congress has drawn the fair use defense. (See Tenenbaum’s opposition to summary judgment at 2: “Joel counters this prosecution is not fair to him or to his generation. He asserts that the copyright statute did not envision free and open space of cyberspace. Any assumption that Congress deliberated and decided the fairness issue in this new cyber context is fallacious.” Props to Ray Beckerman.) Judge Gertner correctly shot this down. We look to the legislature to make this call – how to balance IP access rights with incentives – and not to randomly selected jurors. Plus, nullification is essentially civil disobedience in the court system. It should be saved (to the degree it’s used at all) for issues of the utmost importance. I love copyright, but I don’t pretend that getting free music rises to that level.

So, I think fair use should generally go to the jury, but I don’t think it should have in Tenenbaum’s case.
Please note I don’t in any way mean to criticize the article – I should have made this point more carefully, and Xi / CiCi was trying frantically to copy down my caffeinated dribble to boot. But that’s the joy of blogging: I can expound at painful length on fair use, confident that only close friends and family will be bothered with it…

This article originally appeared on Info/Law.