Deciding Fair Use

Abstract

An often-overlooked question is who should decide the important questions of the day. This Article takes up the inquiry as it relates to copyright fair use. Conceptually, fair use is a public policy question. The better policy view is that fair use is a statutory right, a speech-protective safeguard, and a defense — but not an affirmative defense. Operationally, who decides fair use is a judicial policy question. Who decides a particular question is informed by the nature of the question. Courts are arbiters of law, and juries are arbiters of facts. For a mixed question of law and fact, who decides is driven by whether the question is more fact-like or more law-like. Categorizing such questions is, at its core, an allocative policy question. The policy answer is driven by the nature of the question, relative institutional skills, and the importance of the interest at stake. Properly seen as an affirmative right, and not an affirmative defense, the interests at stake in fair use cases are a user’s right to free expression balanced against a copyright holder’s statutory privilege. This Article contributes to the scholarly conversations by laying bare the reality that who decides the question of copyright fair use is nakedly political. Courts are actively wrestling with this unresolved policy question. The Seventh Amendment fashions a policy preference for juries to decide questions of fact. Moreover, history confirms a long tradition of relying on juries to make fair use determinations. But it is unclear if this tradition will continue. Without Supreme Court guidance, categorizing fair use as more law-like or more fact-like is so slippery and malleable that the Seventh Amendment ceases to be an influence — much less a command.