Of jury instructions, and boggled minds

Jury instructions are an important aspect of the re-trial of accused peer-to-peer infringer Jammie Thomas.

In the first trial, the judge instructed the jury as follows:

The act of making copyrighted sound recordings available for electronic distribution on a peer‐to‐peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.

After the trial (in which the jury found for the labels awarded statutory damages of $222,000), the judge determined that this instruction was erroneous, because it improperly absolved the plaintiffs of proving "actual dissemination" of their works. He thus threw out the verdict, resulting in this second trial. (Here's the labels' brief arguing why the above instruction was correct.)

Earlier this week, the record label plaintiffs submitted their proposed jury instructions for the June 15 re-trial. The proposed instructions include a "making available" instruction identical to the one the court ultimately rejected in the first trial. See Proposed Instruction 20. They also include Proposed Instruction No. 19, which would permit the jury to infer that the copyright owner's distribution right has been violated "where the defendant has completed all the steps necessary for the distribution of copyrighted sound recordings to other users on a peer-to-peer network, without license from the copyright owners."

RIAA nemesis Ray Beckerman is not impressed with the labels' proposed instructions:

Incredibly, the proposed jury instructions submitted by plaintiffs...ask the Judge to repeat the same mistake he made in the first trial, a mistake which required the Judge to set the verdict aside.

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It absolutely boggles the mind.

Beckerman's obvious implication is that there is something strange or improper about the labels submitting a proposed instruction that "ask[s] the Judge to repeat the same mistake he made in the first trial, a mistake which required the Judge to set the verdict aside."

But there is nothing at all improper about the labels' submission of such proposed instructions. The labels know full well that the judge believes instructions premised upon "making available" are not supported by the law, and they are under no illusions that he will give a "making available" instruction in round two.

So why propose the very instruction that the court has already made clear it believes is incorrect (as well as a similar distribution instruction that does not include the phrase "making ... available")? Simple: to preserve the issue for appeal. See Plaintiffs' Statement of the Case at 6 ("Plaintiffs acknowledge that the Court disagrees with this interpretation of the law and provide this argument and reference to supporting law to preserve their [appellate] rights regarding this ['making available'] issue."). Under basic rules of appellate law, they would not be permitted to argue to the Eighth Circuit that an instruction should have been given, unless they first submitted that instruction to the district court. The court knows this as well, and I'm confident will not be offended by the submission of a proposed instruction that the labels know he will reject. (The court will definitely reject Proposed #20; I'm not quite as sure as to #19.)

The only thing that "absolutely boggles the mind" is that an attorney would discuss these proposed instructions without acknowledging the entirely legitimate reason a party would submit them.

Disclosure: while an attorney at Fox, I worked on this amicus brief by the MPAA arguing that the original making-available jury instruction was correct.