Publication Date




Document Type



Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a jury. This practice contravenes a history of fair use that precedes and informs the Bill of Rights, suggesting that judges are now violating the Seventh Amendment right to a jury. And by removing the jury from the fair use analysis, judges have weakened the substantive doctrine, ultimately diluting the strength of fair use expression. That dilution is impinging on fair users’ First Amendment right of free speech. This Article examines why courts have changed their characterization of fair use from issue of fact to issue of law and the constitutional conflicts that have resulted from that change. It proposes a return to the original conception of fair use: a fact-intensive inquiry that preserves the constitutional rights of free speech and the civil jury.