Monday, July 20, 2009

Patry weighs in on Tenenbaum fair use issue

William Patry, Google's chief copyright counsel and author of a leading copyright treatise, has weighed in on one of the outstanding issues in the Joel Tenenbaum case: whether fair use is to be decided by a judge or jury. Commenting on the blog of Tenenbaum's counsel, Harvard Law School professor Charles Nesson, Patry writes:
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....


  1. Today's supplemental memo opposing summary judgment was the most offensive piece of junk yet. At this point, why are any of the Harvard students staying on his team? When you file briefs, cite cases! Make arguments based in law! Seriously, you are going to rest on the idea that Joel knew what he was doing was illegal, but it wasn't unfair? Honestly, maybe this is just me, but I couldn't imagine hiring one of the Harvard students associated with this case unless I was sure that they had nothing to do with any of the briefs being filed or any of the other shenanigans like the recordings, etc. Even then, I would wonder if they have some ethical duty to intervene.

  2. It may be that Patry had the Yahoo email address before he was employed by Google, but the use of a separate service like Yahoo makes it very clear he is not writing on behalf of his employer.

  3. In response to the first Anonymous: I'd cut the students slack. They are students. Not being attorneys, I can't imagine they have any duty, legal, ethical or otherwise. I hate this case as much as anyone -- it's like watching an auto accident. But I'm not going to tar the students with this nonsense.

  4. Anonymous 1:33pm - I disagree. These students are broadcasting their shenanigans all over the place. They must take some responsibility - it appears that some of the wiser students abandoned ship. The others could ask KAD Camara - antics at Harvard Law School will follow you and cast a shadow over you throughout your legal career.

  5. Thank you Anonymous #2, yes using the yahoo account was to make the distinction clear . A big reason I stopped blogging was posts like this. Note how it begins:

    "William Patry, Google's chief copyright counsel and author of a leading copyright treatise, has weighed in on one of the outstanding issues in the Joel Tenenbaum case ..."

    If I ever thought of really resuming the blog, stuff like that should kill the thought: my comment, on someone else's blog has nothing to do with my employer. I was quoting my treatise, which was written before I joined Google, and which really goes back to 1981, to an article I wrote as a law student on the role of juries in copyright cases. Ben is correct that I stated no position on the merits of the defense.

  6. Mr. Patry:

    Thank you for your comment. I hardly think it's unfair of me to note your current employer. While no one disputes that you have had a long and distinguished career in various roles, there's no avoiding the fact that you now have a prominent position at one of the world's best-known companies -- a company that happens to be at the center of many of today's biggest copyright issues. I noted your Google connection not to dismiss your views or to suggest that they were somehow influenced by your employer, but merely for purposes of identification. And the throw-away line about your email address was just a bit of light humor.

    I am among the legions who miss your blog. But I also understand the reasons you felt you had to give it up. I myself *wanted* to blog while I was at my prior jobs, but was never able to make it work, for many of the same the reasons you explained in your final post: potential conflicts with employers and clients, and the risk that people would impute my views to them.

    I very much look forward to reading your book. Best,

    Ben Sheffner


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