summary judgment – morning mail + motion to strike palfrey

Forwarded conversation
Subject: [eon] Comment: “who is the proper decisionmaker on questions of fair use — the judge or a jury”
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From: William Patry
Date: Sun, Jul 19, 2009 at 9:41 PM
To: nesson@gmail.com

New comment on your post #1064 “who is the proper decisionmaker on questions of fair use — the judge or a jury”
Author : William Patry (IP: 68.198.55.157 , ool-44c6379d.dyn.optonline.net)
E-mail : Williampatry@yahoo.com
URL : http://PatryCopyrightBlog
Whois : http://ws.arin.net/cgi-bin/whois.pl?queryinput=68.198.55.157
Comment:
I am not aware of any case holding that where there is a disputed issue of fact on fair use, a jury cannot decide the issue. The occasional statements about fair use being an equitable defense are, in my opinion ahistorical (Judge Leval agrees). The characterization about fair use being a mixed question of law and fact, which originated I believe with the 11th circuit in one of its early Pacific & Southern v. Duncan cases, concerned only appellate review. Here is a longer discussion (footnotes omitted) of that case from the section Peter Friedman cited my from treatise (thanks Peter!)

“In Harper & Row, Publishers, Inc. v. Nation Enterprises,
the Court, citing as the only authority the Eleventh Circuit’s
opinion in Pacific & Southern Co. v. Duncan,2 stated:
Fair use is a mixed question of law and fact , Pacific &
Southern Co. v. Duncan . . . Where the district court has found
facts sufficient to evaluate each of the statutory factors, an ap-
pellate court “need not remand for further fact finding . . .
[but] may conclude as a matter of law that [the challenged
use] [does] not qualify as a fair use of the copyrighted work.”

This modest statement has, unfortunately, been grieviously ously misunderstood and, as a result, applied in unintended
ways. Pacific & Southern Co. was an appeal from a bench
trial. What motivated the Eleventh Circuit’s characteriza-
tion of fair use as a mixed question of law and fact was its
conclusion that the district court had engaged in an errone-
ous interpretation of the law by refusing to analyze fair use
under the second, third, and fourth statutory factors—rely-
ing on a mistaken judgment that a failure to make a produc-
tive use under the first fair use factor ended the fair use
inquiry.The court of appeals, noting the statute’s use of the
mandatory term “shall” in directing courts to examine all
four statutory factors, ruled the district court acted contrary
to the statute by analyzing the use only under the first
factor . The court of appeals nevertheless affirmed the
district court’s rejection of fair use because as a result of the
bench trial, the district court had already found the facts,
and the court of appeals needed only to apply the correct
legal standard. Pacific & Southern thus involved a run-of-
the-mill legal problem: the court of appeals, interpreting a
statute, held that “shall” means “must,” and thus found legal
error in the trial court’s refusal to evaluate the use under all
four factors as commanded by Congress. But as all fact finding had occurred, there was no need for a remand.
Harper & Row’s statement, citing Pacific & Southern that
fair use is a mixed question of law and fact, should therefore
be applied solely to appellate review of erroneous applica-
tions of law. Where the district court has correctly applied
the relevant law, or a jury has decided the issue under proper
instructions, the standard of review is the clearly erroneous
standard. Any other approach would be inconsistent with
the right to a jury to decide fair use, a right recognized by all
circuits, including the Eleventh.

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From: Charles Nesson
Date: Sun, Jul 19, 2009 at 9:45 PM
To: Williampatry@yahoo.com

thanks. glad to have such well-grounded support
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when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.

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From: William Patry
Date: Mon, Jul 20, 2009 at 7:29 AM
To: nesson@law.harvard.edu

Hi Professor Nesson, thanks for having such an open forum. By the way, I have a new book coming out in about three weeks (the amazon.com date is off) I think will interest you (you are quoted on page 29 for your “urban legend” remarks in the Tenenbaum case).

It’s called “Moral Panics and the Copyright Wars”. Here’s the link:

The book is about how language and power have been misused to perpetuate bad business models. I am happy to send you electonic files if you like. I am giving a talk on it October 9th at the Harvard Bookstore 3 pm Friday Forum.

Best regards
Bill Patry

— On Sun, 7/19/09, Charles Nesson wrote:

From: Charles Nesson
Subject: Fwd: [eon] Comment: “who is the proper decisionmaker on questions of fair use — the judge or a jury”
To: Williampatry@yahoo.com
Date: Sunday, July 19, 2009, 9:45 PM

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From: Charles Nesson
Date: Mon, Jul 20, 2009 at 7:36 AM
To: William Patry
Cc: William Fisher

thanks. terry fisher sent me some of the proofs that he thought relevant to the issue, left it to me to decide whether i needed your permission to use them.
:<)

***
Defendant has designated John Palfrey as an expert witness to provide testimony
concerning children’s understanding of the concept of “fair use” under copyright law, how
children should be educated regarding fair use, and an explanation of the behavior of so-called
“digital natives” regarding creativity and copyrights. [snip] this testimony
has no conceivable relevance to any claim or defense in this case and, therefore, must be
excluded!

mmm, what conceivable relevance could how children learn about what they must not do on a computer be to the fairness of punishing a child to teach a lesson

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when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected.