The Respective Roles of Judges and Juries in Copyright Fair Use

29 Pages Posted: 8 May 2020 Last revised: 11 Jan 2021

See all articles by Justin Hughes

Justin Hughes

Loyola Law School Los Angeles

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,

Suggested Citation

Hughes, Justin, The Respective Roles of Judges and Juries in Copyright Fair Use (May 4, 2020). Houston Law Review, Vol. 58, No. 2, 2020, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2020-09, Available at SSRN:

Justin Hughes (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8108 (Phone)


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