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October 14, 2010
Protecting Speech Interests of the Fair User from the Imbalanced Legal Landscape that Favors Copyright Holders
By way of following up on Mark Giangrande's When Is eReserves Like Illegal File Sharing? about the on-going litigation in the Northern District of Georgia, Civil Action No. 1:OB-CV-1425-0DE, where three academic publishers (Cambridge, Oxford, and Sage) are suing Georgia State University for copyright infringement because the University places excerpts of their publications on electronic reserve without paying a fee, Arkansas law prof Ned Snow's Untangling Fair Use as a Matter of Law, [SSRN] may be of interest. Snow writes:
Fair use once existed as an issue of fact for the jury, rarely appropriate for courts to decide as a matter of law. During the 1980s, however, courts started to change this classification. Appellate courts started to review fair-use decisions de novo; trial courts started to decide the issue as a pure matter of law on summary judgment. By the 1990s, this treatment was commonplace.
Snow provides a critical case law analysis of the situation and offers the following conclusion:
As an issue of fact, fair use may be decided as a matter of law—but only where doing so serves its speech-protective function. On appeal, courts should defer to a jury finding that favors the fair user. Everything else courts should review de novo. This double standard of review is necessary to protect speech interests of the fair user from the already imbalanced landscape of the law that favors copyright holders. Adequate speech protection requires that both judge and jury have an opportunity to recognize the fairness of a use. For this reason, trial courts should decide fair use on summary judgment only if the ruling would favor the fair user. The proposed double standard of review and one-sided application of summary judgment are necessary to ensure that fair use protects speech.
Hat tip to Media Law Prof Blog. [JH}