Ned Snow (University of Arkansas at Fayetteville - School of Law) has posted Untangling Fair Use as a Matter of Law on SSRN. Here is the abstract:
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Fair use is an issue of fact for the jury. Or at least it should be. 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. Yet even if they do, the question remains whether courts should ever decide fair use as a matter of law. To answer this question, this Article examines whether appellate courts should ever review fair use decisions under a de novo standard. It also examines whether trial courts should ever decide fair use on summary judgment. The Article concludes that the speech nature of fair use necessitates deciding the issue as a matter of law in certain circumstances: appellate courts should review constitutional findings under a de novo standard, but only where a bench trial occurs or where a jury verdict favors the copyright holder; trial courts should rule on summary judgment, but only for 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.
