The Respective Roles of Judges and Juries in Copyright Fair Use
29 Pages Posted: 8 May 2020 Last revised: 11 Jan 2021
Date Written: May 4, 2020
This Essay Article explores the respective roles of judges and juries in fair use determinations, a previously ignored topic that is now – in light of the Oracle v. Google litigation – a subject of considerable debate. Reviewing the scant 18th century case law, this essay concludes that there is only a moderate argument for a Seventh Amendment right to jury determination of the overall fair use question and that that argument depends on several steps that could run afoul of the Supreme Court’s Seventh Amendment jurisprudence. If there is not a clear-cut Seventh Amendment right, then one must consider the kind of mixed question of fact and law involved in a fair use determination under the Court’s 2018 U.S. Bank framework. While factual issues relevant to fair use belong to the jury, the essay concludes that the overall fair use determination should rest with judges, not juries, to produce the kind of “legal clarity” that thoughtful and thorough appellate review can bring.
Keywords: copyright, juries, fair use, mixed question, Seventh Amendment,
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