whether fair use was historically treated as an equitable defense and, if so, whether it is properly decided by the judge or a jury.Fair Use Briefing Order in Sony v. Joel Tenenbaum
The order recognizes that equitable defenses like "laches, acquiescence, or in pari delicto ... historically ... lay outside the province of the jury and belonged to the judge," and cites numerous cases describing fair use as an equitable defense. But it also states that "the authorities on this question appear to be conflicting or perhaps imprecise, with some dispute over the origins and equitable nature of the [fair use] defense," and cites a handful of cases where fair use did indeed go to a jury. From the footnote on page 4, Judge Gertner does appear to be leaning toward the conclusion that "fair use is an equitable question more appropriately decided by a judge than a jury," but her issuance of this order indicates that she is less than certain.
It is important to remember, as Judge Gertner acknowledges in the first sentence of her order, that the question whether fair use is an equitable defense inappropriate for a jury is distinct, at least in theory, from the issue whether summary judgment is merited. There is no question that fair use is routinely decided on summary judgment (including by Judge Gertner herself), and the order cites Professor Barton Beebe's exhaustive empirical study of fair use opinions, which identifies hundreds decided on summary judgment, motions for preliminary injunction, and after bench trials, but not a single one decided by a jury.
The plaintiffs' brief is due 9:00 a.m. July 20; the order directs Tenenbaum's arguments to be incorporated into its opposition to the labels' summary judgment motion on fair use, which will now be due July 20 as well (extended from the previous due date of July 17).
UPDATE: The Plaintiffs have filed a motion for clarification, asking that Tenenbaum's summary judgment opposition brief be due July 17 (which was the date mutually agreed to by the parties and ordered by the court). The plaintiffs argue that if Tenenbaum is permitted to file and serve his brief at 9:00 a.m. Monday, they will not have sufficient time to prepare for oral argument at 9:30.
On July 15, Judge Gertner issued the following order regarding the schedule for briefing on summary judgment and the fair use judge/jury issue:
Judge Nancy Gertner: Electronic ORDER entered granting  Motion for Clarification. "In light of its earlier scheduling concerns and the approaching pre-trial conference, the Court will adhere to its previous deadline for opposition papers, with supplemental briefing due separately. Defendant's brief in opposition to summary judgment is due Friday, July 17, 2009; the pre-trial conference will occur at 9:30 a.m. on Monday, July 20, 2009; and both sides shall file supplemental briefing on the jury question later that same day by 6:00 p.m." (Gaudet, Jennifer)This reverts to the previous schedule, which leaves Tenenbaum an extremely short time in which to respond to the plaintiffs' summary judgment motion.