Copyright Chat welcomes Professor David Nimmer to the show.  Professor Nimmer is of counsel to Irell & Manella LLP in Los Angeles, California. He also serves as Professor from Practice at UCLA School of Law and Distinguished Scholar at the Berkeley Center for Law and Technology. Nimmer has authored and updated Nimmer on Copyright since 1985.

Benson: You are tuned in to Copyright Chat.

Copyright Chat is a podcast dedicated to discussing important copyright matters. Host Sara Benson, the copyright librarian from the University of Illinois, converses with experts from across the globe to engage the public with rights issues relevant to their daily lives.

Today, Copyright Chat is pleased to host Professor David Nimmer. David Nimmer is of counsel at Irell and Manella LLP in Los Angeles, California. He also serves as a Professor from Practice at UCLA School of Law and Distinguished Scholar at the Berkeley Center for Law and Technology. Since 1985, Professor Nimmer has authored and updated Nimmer on Copyright, the standard reference treatise in the field.

Today, I have Professor David Nimmer with me on Copyright Chat. He is here remotely. Thank you for joining me today.

Nimmer: It’s a pleasure to be here.

Benson: So Professor Nimmer, as I understand it, you’re working on an article about fair use as a jury issue. Can you talk a little bit about that?

Nimmer: Yes. Classically, fair use is one of the defining features of copyright law and in order to give a definition, we need to have judges tell us what the parameters are of fair use and ultimately, we need the U.S. Supreme Court to tell us, and fair use is the issue that has been most litigated at the Supreme Court level.

In fact, there have been four decisions that have talked about fair use. So those decisions are typically a pronouncement by district judges, and then they get reviewed by circuit court judges who typically reverse what the district court said, at least in the context of cases that have gone up to the U.S. Supreme Court. And then at the U.S. Supreme Court level, they are in turn reversed, so we’ve seen that at least three times, that district court says one way, court of appeals reverses, then the Supreme Court reverses that. So those are a bunch of judges giving us their determination of fair use, and once we have enough definitive pronouncements from precedential courts, we can say what fair use is.

But the irony in it though is that fair use unfolds in a copyright infringement trial, and classically, both sides are entitled to trial by jury, so one would think that this is really an issue that should be decided in the first issue, by the first impression, by jurors rather than by judges so I’m talking about that anomaly in the law.

Benson: That’s an interesting proposition, and are most fair use cases decided by judges because a bench trial is requested or because they are decided on summary judgment?

Nimmer: Well, they can be decided by a judge for one of several reasons. First of all, it could be that it’s a motion for a preliminary injunction. That gives rise to a lot of these decisions, and so that’s an early stage in the proceeding at which there’s only a judge, there’s no jury. Second, even if the case proceeds, it could be a motion for summary jud