Courts have recently abandoned the centuries-old practice of construing fair use as an issue of fact for the jury. Fair use now stands as an issue of law for the judge. This change is threatening traditional contours of copyright law that protect fair-use speech. Courts, then, must reform their current construction of fair use by returning to its origins— fair use as a factual matter for the jury. Yet even if courts do construe fair use as a matter of fact, the question remains whether courts should ever decide fair use as a matter of law. To answer this question, I examine whether appellate courts should ever review fair use under a de novo standard and whether trial courts should ever decide fair use on summary judgment. I conclude that both appellate and trial courts should decide fair use as a matter of law under specific circumstances: appellate courts should review constitutional findings under a de novo standard only where a bench trial occurs or where a jury verdict favors the copyright holder; trial courts should rule on summary judgment only in favor of fair users. In short, ruling as a matter of law must serve the speech-protective function of fair use. Fair use as a matter of law must favor fair users.
Ned Snow, Fair Use as a Matter of Law, 89 Denv. U. L. Rev. 1 (2011).