This is the provocative question asked and answered in the affirmative by Professor Ned Snow at the University of Arkansas School of Law in his recently published article “Untangling Fair Use as a Matter of Law.”
Worth a read for all IP counsellors and litigators. According to Snow, fair use was a factual question under English common law, a case at equity under Federal law until the enactment of the Federal Rules of Civil Procedure, and then a factual issue for juries to decide under principles set out by Learned Hand and the Second Circuit. The turn to judges deciding fair use came after our Supreme Court wrote that fair use was a mixed question of law and fact.
Snow writes ” Recently courts have been perverting the centuries-old practice of treating fair use as a factual issue. Courts must therefore repent: they must return to construing the issue as factual.”
The Fair Use defense bar (those arguing that there is no copyright infringement) should study carefully Snow’s logic, refine it, and press for jury determinations as subject matter and case strategies might dictate in a given situation.
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