Why The Jammie Thomas Verdicts Return Such Huge Amounts Per Song Shared: It's All About The Framing

from the pick-a-number-in-the-middle dept

With the latest jury in the never-ending series of trials for Jammie Thomas-Rasset, awarding $1.5 million, or $62,500 per song, many were wondering how the jury comes up with such numbers that seem so ridiculously out of line with any actual damages. The real problem isn't the jury, but the law. Copyright law has ridiculous statutory damages, which by definition have no basis in actual damages. This leads to purposely nonsensical results like being fined $1.5 million for sharing 24 songs you liked. So why is the jury still picking those numbers? Well, it's all about the framing. If you read the jury instructions to the latest jury, you can see why the jury more or less picked the number it did. Just take this key section:

You are hereby instructed that a jury in a previous trial has already determined that the defendant's infringement of plaintiffs' copyrights was willful. In this case, there is no issue as to the defendant's liability for willful copyright infringement. As a result, your sole responsibility is to determine the amount of damages to be awarded to the plaintiffs for the defendant's willful infringement of the plaintiffs' copyrights.

In this case, each plaintiff has elected to recover "statutory damages" instead of actual damages and profits. A copyright holder may recover statutory damages even if it did not submit evidence regarding actual damages. Under the Copyright Act, each plaintiff is entitled to a sum of not less than $750 or more than $30,000 per act of infringement (that is, per sound recording downloaded or distributed without license). Because the defendant's conduct was willful, then each plaintiff is entitled to a sum of up to $150,000 per act of infringement (that is, per sound recording downloaded or distributed without license), as you consider just.

There's nothing specifically wrong with the jury instructions. They're exactly what the law basically says the judge should say. But, if you're the average person in the jury box, these instructions effectively say "pick a number higher than $30,000 and less than $150,000." That's basically it. The numbers are framed right there, and the jury just has to pick. So, the last two juries picked $80,000 and now $62,500. If you're on the jury, you're not really thinking about what this actually means, or if the punishment fits the actions. You're told, by law, you should pick a ridiculously high number, and then you just sorta pick one within that frame, which has already been set for you. If you're told that they can be fined $150,000 per song shared, and you assume that the law must make sense (because who would pass a nonsensical law?), then at no point do you ever consider the reasonableness of such an award. That seems like a pretty bad judicial system, because it encourages frivolous results that very few people can respect.

Filed Under: framing, jammie thomas, juries, statutory damages

How The Patent Office Outsourced Its Job To Non-Expert Jurors

from the this-is-sad dept

I already wrote about Larry Downes blog post suggesting that Paul Allen's patent lawsuits might actually be an attempt to expose problems with the patent system, but I wanted to discuss a different point Downes raised earlier in the post, in discussing the problems of the patent system. Obviously, we've discussed many ways in which the patent system today fails to do what it's supposed to do, and a big part of the problem is the fact that the USPTO seems to approve a ton of crappy patents. This isn't because the examiners aren't trying hard, but just because the very nature of the system, and its inherent lack of scalability, mean the incentives are always going to lead to approvals of bad patents.

But what does this mean in practice? Downes highlights the problem this causes in a very simple way: it's the USPTO outsourcing the patent review process to unskilled juries:

The result has been the creation of a shadow patent examination process through litigation. The grant of a patent is no longer the final step, in other words. The de facto examination really takes place when the holder tries to enforce the patent against an alleged infringer, and the defendant claims invalidity of the patent as a defense. When such cases go to trial, which they rarely do, a jury of laymen are then tasked with doing the work avoided by the patent examiner.

In effect, the patent office has outsourced its job to the judiciary and in particular to a jury of non-experts. If nothing else, that is a feature of the modern system that absolutely no one is happy with, or in any event that no one can justify.

This is a pretty big problem when you think about it. Already, there are concerns that the supposed patent examiner "experts" often don't have enough expertise to judge the non-obviousness of certain inventions. To then shift the burden to inherently unskilled non-experts to make that decision, even with advocates for both sides fighting it out in front of them, seems to go against the very idea that patents are supposed to only be allowed if they are non-obvious to those of ordinary skill in the art. Asking those not skilled in the art to make that judgment seems like a mistake.

Filed Under: experts, juries, obviousness, patents

Lawyers Doing Real Time Jury Googling

from the not-for-judges-and-juries... dept

There have been questions lately about whether or not it makes sense for jurors and judges to use Google in the court of a trial, but what about lawyers? Obviously, they can use Google in general, but what about in court to do instant Google background checks on potential jurors. That ABA Journal article notes that lawyers are increasingly making use of the tools to learn about jurors as quickly as possible:

"Last month I had 50 jurors, and as the court clerk read out the names, I had two people in the courtroom and a third person back at the office, with all three of them doing research," says Kiesel, a partner with Kiesel, Boucher & Larson. Junior lawyers also assisted, and Kiesel estimates the social media research for that case cost less than $5,000.

Apparently, in that case, the Google searches turned up some relevant points that caused a juror they otherwise would have accepted to get rejected. However, the article notes that jurors might get creeped out knowing that lawyers were immediately checking them out on Google, and wonders if judges may crack down on the practice (the lawyer quoted in the article insists that there would be no legal basis for a crackdown...). I can't see why it's really a problem. It's not really a privacy issue since they're looking up public information. Either way, it's yet another example of how basic search technology is showing up in the courtroom more and more, even if the courts aren't fully ready for it...

Filed Under: court, juries, lawyers
Companies: google

Why Shouldn't Jurors Be Able To Use Technology To Do More Research?

from the yeah,-that's-not-going-to-work dept

We've pointed out in the past that, eventually, the judicial system is going to have to come to terms with the fact that people use technology to research and communicate, rather than trying to pretend it can be stopped. But, it sounds like that's going to take a while. Courts are increasingly looking to ban jurors from using any kind of technology. And yes, before we go through this again, we understand the arguments why courts do this (so no need to keep repeating it in the comments like last time). The question is does this really make sense? The idea that you have no outside influences in making a decision as a jury is an idealistic fantasy anyway. Jurors always make decisions based on their own history and experiences. It's part of what makes a jury a jury. Otherwise, you'd just have one guy who would weigh all the facts in a case and who would always pop out a perfect decision. So, if we can admit that jurors are always bringing outside information (in the form of their own life history and knowledge) into the court room, can't we at least begin to understand why there's an argument for letting smart jurors make use of technology to better understand the issues at play?

Filed Under: juries, jurors, research, technology

Non-Practicing Patent Holders Winning Bigger And Bigger Awards -- And Why They Like East Texas

from the speed-or-success? dept

It's no secret that many non-practicing entities (i.e., patent holders who do not actually build anything, but just try to license their patent or sue others for infringement) tend to prefer jury trials. It's well-known that juries, who have been fed years of misleading (and sometimes blatantly false) stories of the mythic "sole inventor," are extremely sympathetic to stories of big bad companies "stealing" ideas from lone inventors. Of course, reality is a lot more complicated. It's extremely rare that there's any evidence at all that a practicing entity actually took the idea from the patent holder, and there's significant evidence that the use of patents by such NPEs is woefully inefficient and a drag on innovation. But juries sure do love those David vs. Goliath stories, and some new research shows how popular jury trials have become for such lawsuits -- and how the awards for NPEs have been growing rapidly because of that.

BearGriz72 points us to some new research on non-practicing entities from PwC that shows the end result of all of this:

Damage awards for NPEs have risen considerably in recent years. In fact, the median damages award for NPEs was more than triple the award for practicing entities over the last seven years ($12 million for NPEs, and $3.4 million for practicing entities). Contrasted with 1995-2001, the median damages award for NPEs was about the same when compared with practicing entities (roughly $5 million).

One obvious explanation could be that NPEs have become more sophisticated in selecting patents to litigate, and understanding the markets to sue against. However, another explanation may have something to do with the use of jury trials -- juries decided only 14 percent of the cases with damages awards during the 1980s and 24 percent during the 1990s. In this decade, juries have decided 51 percent of the cases with damages awards.

NPEs like juries -- trial success rates for patent holders are much higher when decided by juries as compared to bench trials. In fact, jury success rates have consistently outperformed their bench counterparts every year since 1995. Since 1995, 55 percent of trials involving NPEs have been jury trials, as compared to only 41 percent of trials involving practicing entities. In addition to the rate of success at trial, recent awards by juries have been significantly greater, running several multiples of the amounts awarded by judges.

It does seem quite odd that NPEs would generally win much larger awards than practicing entities. After all, it would seem like the clear losses for practicing entities should be much easier to establish than for NPEs. But, perhaps it has something to do with the fact that a real company suing another real company creates a less sympathetic story than a "lone patent holder" (rarely true in practice) suing a big company.

There's some other interesting data in the report. For example, it looks at the various district courts and how they handle patent lawsuits. As you know, it's become incredibly popular for non-practicing entities to sue in Eastern Texas because of the court's history of siding quite frequently with the patent holder. However, defenders of using the courts in East Texas claim it's actually because the "rocket docket" goes through patent cases much faster than other districts. Except, the new data suggests that's not the case. The Eastern Texas district actually came in ninth in time-to-trial. Interestingly, the report also suggests that the Eastern District of Virgnia may now be even more "patent friendly" than Eastern Texas, in a measure that tries to combine both time-to-trial and patent success rates. And yet, many more cases are still filed in Eastern Texas than in Eastern Virginia. Why? Well, if you separate out the two separate factors used in determining "patent friendliness" -- what the data shows is that while Eastern Virginia is much faster to get to trial, the success rate for patent holders is lower than in Eastern Texas. In other words, the claim that Eastern Texas is chosen due to speed? Bogus.

Filed Under: awards, east texas, juries, non-practicing entities, patents

Case Appealed Because Jurors Were Allowed To Use Prosecutor's Laptop

from the that-doesn't-seem-very-smart dept

We've been seeing all sorts of odd issues in the courtroom as the court system comes to grips with modern technology like mobile phones and the internet, which introduces some new challenges. However, this one is really strange. Michael Scott points us to a story of a trial where the defendant appealed because the jury was allowed to use the prosecutor's laptop to review evidence without supervision, leading to questions of whether or not the jury was able to view other material that had not been entered as evidence in the case. The case itself involved a fight at a gas station, and the evidence on the laptop was the surveillance camera video taken of the fight. In an odd exchange, the prosecutor said he was fine with having the jury look over the laptop, he admits it's actually his son's laptop and probably didn't have anything else on it, other than his son's political science notes. For that reason, the appeal didn't get far, since the original court and the prosecutor had established on the record that there was nothing else related to the case on the laptop, but it still makes you wonder why the jury was allowed to use the prosecutor's laptop without supervision. Why not get another laptop? Also odd, is that I don't quite understand what the prosecutor means when he says he can't just take the CD with the video out of his laptop:

Your Honor, the CD is in my laptop. If they want to watch it, I don't have any problem with the CD they can't obviously watch anything without the CD. My concern if I take it out, shut down the computer I am not here there is no one to gather it back up. So I would suggest we leave it here in the event they want to look at it they come back and look at it.

Why couldn't they take the CD out and put it into another laptop?

Filed Under: juries, laptops, trials

Jurors Required To Sign Promises Not To Google Details Of Case

from the modern-technology,-meet-the-courts dept

There have been plenty of stories concerning judges warning jurors not to research any additional items about a case online, but JJ points us to what is apparently a first (at least in California). A judge has ordered the jury to sign a document that they will not use the internet to research the case, and they can face perjury charges if they're caught doing so. Apparently, the reasoning is that most jurors tend to ignore the spoken warning. My guess is that many will ignore the signed promise as well -- in fact, as some behavioral research has shown, just telling them not to do it, may make them even more likely to do so. At some point, the courts are going to have to realize that you simply can't prevent people from looking up more info, and will have to come up with ways to adapt.

Filed Under: internet, juries, promises, search

No, A Jury In A Trial Is Not A Representative Sample Of Views On Copyright

from the nice-try-though! dept

After the Jammie Thomas trial, the RIAA tried to claim that the juries in both her trials represented a representative sample of the nation's views on copyright law. Now, following the Joel Tenenbaum trial, entertainment industry lawyer Ben Sheffner is making the same claim again:

On the Internet, (almost) everyone hates copyright. In fact that's one of the reasons I started this blog. Every day, for years, I would read about how copyright is stupid, outmoded, destructive, and downright evil. But I knew that the "law" I would read about bore scant resemblance to the actual law, and the way that businesses that earn revenue from production and exploitation of copyrighted works actually function. And I knew that not everyone harbored such vitriol and venom for the copyright owners, who routinely win major victories in the courts and the political arena.

The Jammie Thomas-Rasset and Joel Tenenbaum verdicts have highlighted this chasm between the "Internet" view of copyright, and what average citizens think of the topic. Now three juries, made up of 34 ordinary people from the Minneapolis and Boston areas, none of whom had any connection to the entertainment industry, have passed judgment upon use of p2p networks to obtain music without paying for it -- an activity that is excused, or even celebrated, in many quarters of the web. And all three of those juries demonstrated through the very large damages awards they imposed that they view illegal downloading and "sharing" as wrong, and deserving of harsh sanction.

While I'm sure that sounds good and is comforting to folks who make their living by profiting off of government granted monopolies, it's not even close to accurate. First of all, a jury is hardly a representative sample. The lawyers on both sides work hard to weed out those who actually are knowledgeable on these topics. In the Tenenbaum case, for example, any juror who admitted to using any file sharing apps was ruled out from serving on the jury. I have no problem with this from a legal standpoint, and totally understand why it happens, but it highlights that these juries are not a representative sample by any means.

Second, trials have very, very specific rules (many of which Tenenbaum's team tried to break), which limit what sort of information you can share about various issues. So at no point could there be a real conversation on copyright or business models. The jury was not an informed audience.

Third, Sheffner tries to use the fact that all three juries did not assign the statutory minimums as a sign that they felt that file sharing deserved harsh punishment, but again, that's not necessarily true (though, certainly it could be). There's a tremendous amount of evidence out there on jury decision making, and the award amounts that juries give can be heavily influenced by numerous factors, including something as simple as the numbers tossed out by those involved in the case. A few separate studies have shown that when numbers are discussed, it gives the jurors an anchor and they just see those numbers as acceptable, rather than comparing the numbers to the actual crime. Given that, the fact that the jury chose a number towards the lower end of the statutory range suggests that the jury actually didn't think the punishment should really be that harsh.

Fourth, in both of these cases it was clear that the defendants broke the law. The jury's job is made clear to them, and it is to make a determination on the law (and in the Tenenbaum case, even that was taken out of their hands by Tenenbaum's admission). Saying that this is somehow representative of the actual views on the activities is again, quite misleading.

Fifth, it's no surprise that those who don't follow these issues closely believe the idealistic story about copyright being an undeniable good thing. It's what most of us were taught, and if you don't know the details or haven't been directly impacted by draconian copyright laws, you probably believe that myth that many of us were taught from a very young age. So you put a bunch of those folks together on a jury, limit their ability to be educated, and of course they're going to default to thinking "copyright = good."

Over the years, I've found that most people who don't pay much attention to these things believe that story of copyrights and patents being the "root cause" of American creativity and innovation. It's a fable that sounds so good as youngsters, and why not? Yet, when you talk to such folks one on one or in small groups, and start going through the real details... and when you explain to them how copyright is used to stifle speech and innovation, and when you show them the new and unique business models that don't rely on copyright, they recognize the issue. When you finally show them the evidence -- the studies upon studies about the harm done by such things, it's not hard for them to realize that there's a real problem with copyright laws, and that problem isn't the fact that some kids aren't paying for downloads.

The only people I've found who resist such things are those whose own income in some way depends on exploiting copyright for their own advantage. There may be others, certainly, but in my experience it's incredibly rare. Not only that, but I've actually found that even within much of the entertainment industry, there's an understanding of this as well. I can't even begin to tell you the number of industry insiders who pull me aside at entertainment industry events to say (quietly) that they agree with a lot of what I say, but there are too many legacy issues to deal with to move forward strategically.

So, claiming that these juries are somehow representative samples of the views of people on file sharing is not even close to being accurate, no matter how much a small group of entertainment industry lawyers hope it's so.

Filed Under: copyright, joel tenenbaum, juries, public perception

Michigan Supreme Court Issues New Stop Twittering Rule For Juries

from the stop-that-twittering dept

There have been a few recent stories about jury members using Twitter, and courts have been trying to figure out how to deal with it. Well, over in Michigan, the Supreme Court has issued new rules for judges to tell jurors concerning their use of text messaging and other communication services. While it doesn't name Twitter specifically, it seems like the new rules are pretty clearly directed at jurors who might Twitter or use some other similar communication tool to explain what's happening in the case.

Filed Under: juries, michigan, twitter
Companies: twitter

Should There Be PHOSITA Juries In Patent Trials?

from the isn't-that-what-the-law-should-require? dept

One of the complaints we've had about the patent system and current patent law is that the law clearly says that patents should only be granted on things that are new and non-obvious to a person having ordinary skill in the art (the so-called PHOSITA). In the past, we've questioned why the USPTO doesn't actually make use of skilled practitioners in determining obviousness of patents. Some patent system supporters claim that doing so is somehow unfair -- but it's exactly what the patent system calls for. It seems odd that a patent examiner should be asked to judge what a person skilled in the art thinks of a patent without ever asking a person skilled in the art. However, Dan Wallach, over at Freedom To Tinker, takes this idea a step further to ask why no one talks about requiring juries in patent trials to be made up of PHOSITAs. While he admits the idea is probably impractical, it does seem like a reasonable question. Juries are notoriously inclined to side with patent holders, often because they don't know enough about the technology to know whether or not the patent is valid. While I agree with Wallach that this is probably impractical, it does make you wonder if there are better solutions that actually get those skilled in the art to weigh in during patent trials, rather than actively keeping them out.

Filed Under: juries, patents, skilled in the art