Re: Judge or Jury

On Fri, 02 Apr 1999, Nick Zales <zales[_at_]execpc.com> wrote:
>
> A copyright infringement action seeking damages can be tried to a judge
> or jury. What are people's experiences with trials to the court or a
> judge. Is one preferable over the other? I find copyright claims are
> so esoteric, and the law so subtle and bizarre, that a jury would seem
> incapable of fairly deciding the issues. On the other hand, trying a
> case to a Federal judge, who is neither knowledgeable nor interested in
> the hypertechnical aspect of such claims, does not seem too palatable
> either.
>
> Any suggestions?

If I represent the plaintiff, I almost always prefer a jury especially if the plaintiff is the creator of the work. Unlike a judge, who is constrained to justify the decision on the basis of the sometimes arcane principles of copyright law, a jury can usually be made to see the issue as one of whether the defendant "stole" the plaintiff's creations. And, of course, isn't a jury better able to determine the question of substantial similarity in its most common formulation?

Questions of damages will often come down to the issue of the extent to which the defendant should be "punished" for its theft. This is especially so now that juries are presented with the stat damage issue, and "punishment" can be argued directly. There was one unusual case I tried under the old regime, however, in which the court awarded stat damages slightly higher than the jury's verdict for actual damages. But that might possibly have been influenced by the fact that if the verdict were accepted the court would have been faced with a difficult post-verdict motion arguing that the charge presented an incorrect theory of damages and, if the argument were accepted, a new trial would have been necessary. By awarding higher statutory damages, the court avoided the difficulty.

Larry Weiss
<pgw[_at_]idt.net> Received on Sat Apr 03 1999 - 19:08:44 GMT