4 ms·
You're mostly right, kind of. I'm going to try and explain this, but it's not particularly easy. The confusion comes from both the nature of the "fair use" defe
by nknight 14y ago
You're mostly right, kind of. I'm going to try and explain this, but it's not particularly easy. The confusion comes from both the nature of the "fair use" defense and the collision of legal vocabulary and common language.
Fair use is an affirmative defense, which means that even if a violation occurred in a strict sense, that violation is excusable. It's not an "I didn't do it" argument, it's an "I shouldn't be punished because..." argument. Self-defense is a textbook example of an affirmative defense -- strictly speaking, I would violate the law by intentionally injuring or killing someone, but I can argue that I was defending myself.
The question of an affirmative defense is not even relevant until there is a prima facie case showing violation, and often the fact-finder (jury or, in a bench trial, the judge) will actually find all the facts necessary for a judgement that infringement occurred before addressing the question of fair use, partly because the answers to many questions of fact for infringement are relevant to whether "fair use" holds.
In the end, you do end up with a judgement that no infringement occurred, but along the way, you often end up with findings of fact that do spell out a "violation".
- chimeracoder 14y ago> You're mostly right, kind of. I'm going to try and explain this, but it's not particularly easy. You did a good job, but I'd be interested to see how important details like this are thoroughly explained to a jury that's actually making a decision like this.
- rayiner 14y agoIn painful detail.
- rst 14y agoGroklaw has a (near?) final draft of the jury instructions towards the end of a very long post here: http://www.groklaw.net/article.php?story=20120430075018880 http://www.groklaw.net/article.php?story=20120430075018880 The instructions themselves look like they'd be tens of pages of text printed out. (And note that the people deciding this are specifically chosen for their lack of background in the technologies involved --- IIRC, two candidate jurors with software experience were excused, for that very reason.)
- erichocean 14y agoYou're entitled to a jury composed of anyone other than your peers.
- sanxiyn 14y agoThat's a bit unfair. Oracle objected to two candidate jurors with software experience, yes, but at least not officially "for that very reason". One candidate was an HP employee and Oracle objected on the ground that Oracle has a separate suit with HP. When asked of opinions about patents, the other candidate said he has his strong opinion about patents. I mean, we all do... But I think objections were justified. Don't you agree that if you think software patents should be abolished, you should not be a juror in a software patent case?
- sokoloff 14y agoIf 1/12th of the overall population thinks that way, it does not seem unreasonable for a jury of 12 to be a fair cross-section of the population. In fact, the opposite seems unreasonable to me.
- jmilloy 14y agoI don't think that it's the court's job to ignore laws that are unpopular. In that way, anyone who admits to having a strong opinion, which may preclude them from objectively interpreting and applying the laws that do exist to the case at hand, should not be on the jury. We're not polling the population/jury "should these actions should be illegal?" but instead asking "given the laws today, are these actions illegal?"