So far in this series on DIY Copyright research, we have discussed how to find useful and reliable precedent, whether that precedent is binding or persuasive and what it means when there is a circuit split. This installment will be short, sweet and (hopefully) useful - the jury instruction research hack.
What are Jury instructions?
Jury Instructions are pretty much what they sound like - written instructions given to a jury. They normally include explanations and statements of the law so that, when the jury retires to deliberate, they have access to the rules they are supposed to be applying.
Depending on the jurisdiction, attorneys from both sides can draft their own versions of the jury instructions and, as a young litigator in California, I was tasked with drafting jury instructions many times. Each time I had to do this, I usually started with the "model" or sample jury instructions that were produced by the state. These model instructions usually give the basic laws in a well-supported, concise, easy-to-read format. For instance, a copyright model instruction may look like this:
COPYRIGHT INFRINGEMENT—ELEMENTS—OWNERSHIP AND COPYING (17 U.S.C. § 501(a)–(b))
Anyone who copies original elements of a copyrighted work during the term of the copyright without the owner’s permission infringes the copyright. On the plaintiff’s copyright infringement claim, the plaintiff has the burden of proving both of the following by a preponderance of the evidence:
1. the plaintiff is the owner of a valid copyright; and
2. the defendant copied original elements from the copyrighted work.
If you find that the plaintiff has proved both of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove either of these elements, your verdict should be for the defendant. [1]
The model instruction is then usually followed by a comment section where you can find tons of cases and statutes supporting the laws described.
How are Jury Instructions Useful for Researching Copyright?
Model jury instructions are super helpful because they describe the law and then give plenty of additional pertinent supporting references to check out. The instructions are specifically written for a lay audience so they are simple and usually easy to understand.
So, this can be great for getting a start on a research project, finding key words or phrases to search, identifying potentially helpful cases and statutes and just generally getting a feel for an area of law.
As it pertains to copyright, only three of the federal circuits produce model copyright jury instructions - the 7th, 9th and 11th circuits. But, even if you do not live in those jurisdictions, they still may prove to be a helpful jumping-off point. Plus, the comment sections of the instructions often include references to relevant Supreme Court cases and federal statutes which are applicable to all of us.
The model instructions are usually hundreds of pages long so, I have extracted just the copyright portions below if you interested in downloading them. Happy researching!
[1] Model Jury Instruction 17.4 from the 9th Circuit.
Comments