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....This is consistent with Patry's treatise, which (as I noted here) states:
It is common to refer to fair use as an 'equitable rule of reason.'[FN1] One court went further and claimed that 'the doctrine is entirely equitable and is so flexible as virtually to defy definition.'[FN2] This characterization is inaccurate. Fair use is not an equitable doctrine or an equitable defense.[FN3] As history reveals, it is a legal defense which may, and frequently is, decided by a jury,[FN4] although like most issues, in appropriate cases it may be decided on summary judgment.[FN5]....Neither in his blog comment nor in a follow-up email exchange with Nesson does Patry (who appears to be writing in his personal rather than official capacity) opine on the ultimate question facing Judge Gertner in this case: whether there are indeed disputed issues of fact that would preclude her from deciding fair use on summary judgment (as, say, she did in Fitzgerald v. CBS, where the case for fair use was infinitely more plausible than here (though still a loser)).
The court is set to conduct its pretrial conference at 9:30 a.m. EDT this morning. While I expect the parties to argue the fair use issue (briefs here and here), I would be surprised if the court rules immediately, since a separate set of briefs on the judge/jury divide on fair use is not due until 6:00 p.m. today.
Lastly, I'd be remiss as a blogger if I failed to note that Google's chief copyright counsel uses Yahoo for his personal email. Hell, even I use Gmail....