Zahr K. Said, Jury-Related Errors in Copyright, 98 Ind. L.J. 749 (2023), https://digitalcommons.law.uw.edu/faculty-articles/940
Indiana Law Journal
jury, copyright law, civil litigation, infringement, substantial similarity, fair use, jury comprehension
Copyright law is surprisingly hard. Copyright does not do what laypeople think it does, nor do its terms mean what laypeople expect. Copyright also possesses systemic indeterminacy about what it protects and the extent of that protection. For laypeople, copyright law is decidedly “user-unfriendly.” Nonetheless, copyright law reserves for lay jurors its most-litigated, most difficult, and most consequential question at trial: whether works are “substantially similar” and thus infringing.
Many have criticized this allocation because in the context of copyright law, juries effectively have the power to expand or contract owners’ rights with little oversight or correction. But blaming the jury obscures other systemic factors and overlooks mistakes made by judges and litigants (as well as juries). In short, don’t blame the jurors, blame the game. To evaluate and improve the jury’s role in copyright litigation, we must look at—but also beyond—the jury and consider systemic sources of error, starting with complexities built into copyright itself.
This Article focuses on copyright’s jury per se and begins to bridge the gap between copyright scholarship and the methodologically diverse generalist jury literature. Numerous high-profile jury trials underscore the jury’s importance for copyright policy, yet scholars have neglected to consider the jury’s role in light of existing generalist scholarship. Jury-Related Errors in Copyright profiles copyright’s user-unfriendliness and explores its impact by examining cases involving jury-related errors. It proposes a framework for considering reforms, arguing that copyright law must be attuned to what juries need to accomplish their tasks (via a “jury-centric” approach) as well as heeding how juries’ verdicts effectuate—or distort—copyright’s policy aims (using a “system-centric” approach). More scholarship is needed to develop future reforms but this Article provides a necessary starting point by acknowledging copyright law’s current user-unfriendliness and highlighting the significant impact of jury-related errors.