Academic

Snow on the First Amendment, Fair Use, & Summary Judgment

By Lawrence Solum

Ned Snow (University of Arkansas at Fayetteville - School of Law) has posted Fair Use, Summary Judgment, and the Constitution on SSRN. Here is the abstract:

Summary judgment has become commonplace to decide issues of fair use in copyright cases. But it was not always so. For well over a century, juries routinely decided issues of fair use. Courts recognized that the subjective nature of inferences in the fair use analysis made those inferences factual, precluding a summary disposition. They understood that the Seventh Amendment right to a jury and the First Amendment right of free speech demanded juries in fair use cases. Today, however, all this has been forgotten. Courts of today characterize the inferences in the fair use analysis as entirely legal so that summary judgment is appropriate. This Article examines the question of whether these inferences constitute matters of fact or matters of law. It further examines the reasons for which courts changed their characterization of these inferences, along with the constitutional tensions that have arisen as a result of this changed characterization.

Full post as published by Legal Theory Blog on August 21, 2009 (boomark / email).