Another Frustrated Federal Judge

This week’s fruit of judicial frustration–and lesson to litigators–is  from Judge Sam Sparks of the U.S. District Court for the Western District of Texas. Judge Sparks ordered counsel to a “kindergarten party” at the federal courthouse in Austin to learn “many exciting and informative lessons” including “[a]n advanced seminar on not wasting the time of a busy federal judge and his staff because you are unable to practice law at the level of a first year law student.” The WSJ Law Blog reports today that Judge Sparks canceled the kindergarten party because the parties were able to settle. I’d settle too if the alternative was judicial core-reaming in open court.

Monetizing Piracy

An Ars Technica story provides more information about the U.S Copyright Group’s litigation campaign against movie downloaders.  As mentioned here in March (see Bit Torrent-ers Beware) the Group is the revenue-generating brainchild of a Virgina law firm.  As reported by Ars Technica it’s a simple idea:  identify downloads of an independent film, team up with film’s producers, sue the anonymous John Does for copyright infringement, subpoena their identities, agree to settle for short money (compared to going to trial), split the proceeds with the film’s producers, rinse, repeat.  Ars Technica identifies the films and number of defendants named in the eight suits, all filed since January 2010 in D.C. federal court ; The Hurt Locker is the best-known.  U.S. Copyright Group has sued over 14,800 defendants to date.  If the plaintiffs obtained an average of just $500 per defendant (a number I pulled out of the thin air) they would gross $7.4 million.  From where I sit $500 per defendant seems plausible–some John Does will remain unidentified, some won’t exist, some will be judgment-proof, but even so an average of $500 per defendant is not a ridiculous plug number.  Whether the lawyers’ costs come off the top or not, and even if the costs are $100/defendant, the net would be about $6 million.  Ars Technica plugs in larger numbers to calculate a settlement pot of close to $20 million.  Whoever is closer, it’s real money.

Judge Admits Error in RIAA Case

Last October a Minnesota jury found Jammie Thomas liable for copyright infringement for KaZaa downloads of 24 copyrighted songs and awarded damages of $9,250 per infringement, a total of $222,000. Last week Michael Davis, the federal judge who presided over Thomas’s trial, said that he erred when instructing the jury that ““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.” In other words, the judge told the jury that it could find Thomas liable for copyright infringement merely by placing copyrighted songs in a KaZaa-shared folder, even if no one copied one of the songs from the folder. That instruction was counter to the 8th Circuit’s 1993 decision in National Car Rental System, Inc. v Computer Associates International, which held, quoting Nimmer on Copyright, that “[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.”

The judge’s mea culpa is the latest in a series of judicial pronouncements as to whether “making available” a copyrighted work constitutes infringement of the copyright holder’s distribution right. Two other recent cases include London-Sire Records v Doe, a 31-Mar-08 decision from the federal district court in Boston in which Judge Nancy Gertner examined the issue at length and concluded that “to constitute a violation of the distribution right under § 106(3), the defendants’ actions must do more than ‘authorize; a distribution; they must actually ‘do’ it.” Four weeks later in Atlantic Recording Corporation v Howell the Arizona federal district court cited National Car Rental System, London-Sire Records, and other cases and sources to support its statement that “[t]he general rule, supported by the great weight of authority, is that ‘infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.’

The issue should be familiar to this semester’s students in Internet law. I used the facts of the Howell case as the basis for their final exam.

Vanishing Trials

Take note, prospective trial lawyers: the route to the courtroom travels an increasingly-narrow path. The number of civil trials has declined steadily over the past 40 years to the point that only 1.8% of all civil cases filed in federal court result in trials. The number of civil trials in state courts shows a similar decline. I would not have guessed the number to be so small. Today’s Boston Globe reports “[b]ecause of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.” Rational reasons all, but (as The Globe reports) fewer trials means fewer experienced trial lawyers, a problem compounded by staffing practices in large corporate firms. If you hire Bob Popeo to represent you in a civil matter then, if your case is one of the 1.8% that goes to trial, you want Bob Popeo as lead counsel in the courtroom, not not one of Popeo’s talented younger partners and certainly not a litigation-department associate, no matter his or her academic pedigree. When the Popeos of the litigation bar retire, however, the ranks of lawyers with trial experience will grow successively thinner with each generation. As high as the stakes and arduous as the preparation for a summary judgment motion might be, it is not the same experience as a multi-day trial.

The article points out some of the steps firms are taking to enable younger lawyers to gain trial experience, such as handling pro bono cases through the Boston Bar Association’s Volunteer Lawyer’s Project. Shortly after its inception in 1977 I worked as a paralegal at the Volunteer Lawyer’s Project. VLP is worthy for its pro bono client services and for the hands-on opportunities it provides to attorneys. Taking a case through the Volunteer Lawyer’s Project may increase a lawyer’s chance of trying a case but trials are no more numerous in those cases than they are in civil limitation in general.

Civil trials are terrible vehicles to resolve disputes, contentious, ridiculously expensive, and emotionally draining, and I don’t bemoan their paucity. The scarcity of trials underscores a disconnection I experience in just about every conversation with wannabe law students, who think of litigation when they think of the law: most lawyers are not litigators. For every lawyer in the litigation department of a large corporate firm there are often 5-10 lawyers in other practice areas. They are real estate lawyers, corporate lawyers, trusts and estates lawyers, tax lawyers, municipal finance lawyers, environmental lawyers, they almost never set foot inside a courtroom (testifying as a witness for a deal gone wrong doesn’t count), and they practice outside the gaze of Court TV, law-based TV shows and movies. We will never see a television drama called Bond Counsel or Fiduciary (well, maybe on cable), which means most pre-law students will experience the law through the distorted and diminishing prism of trials.

Sacha Pfeiffer, Few chances for lawyers to develop trial skills, The Boston Globe 29-Nov-06, p.1