In an ordinary copyright infringement case, say involving two literary works, what do we tell juries about how they are to find liability or not? I don't mean abstract principles like, "You have to find plaintiff's work is copyrightable, plaintiff owned the rights in question at the time defendant allegedly infringed them, that defendant acted without authorization, and that defendant copied a material amount of expression." I mean the nitty gritty of what we tell the jury that will be of actual assistance in finding that the two works are substantially similar in expression.
The lawyers will point to the testimony of witnesses and to analyses of the works themselves, maybe even to demonstrative charts with side-by-side comparisons from the works, but how do you assist the jury in deciding too much or too little of something was copied? "Substantial" includes both quantitative and qualification aspects on top of other problems.
In Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946), the court of appeals phrased matters this way: "The question, therefore, is whether defendant took from plaintiff's works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff." This is of course, completely circular: how does the jury know when something belongs to plaintiff in the first place and if so to such an extent that defendant should pay in damages?
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It's simple! Just tell the jury to do compute this simple equation:
V = [(A-B)/A]*[1-((C-A+B)/C)]* D*(1-E)*F(G,H,I,J)
where F = K * [(G + H + I + J)/sqrt(G^2 + H^2 + I^2 + J^2)] * (1-L)
V = Verdict (infringement if V > 0.5)
A = Work
B = Noncopyrightable or unprotected portion of work A, becomes an integral function for software (see special master for assistance).
C = Accused work
D = Ratio of actual access to potential access, unless access isn't an issue in which case it is automatically 1
E = proximity of the accused infringer to the movie or recording industry on a scale of 0 to 1, 1 being an MPAA or RIAA member, unless the plaintiff is also an industry player, in which case E=1.
F = fair use as a function of G (educational aspect of use), H (portion of work used, specifically (C-A)/C), I (effect on the market for the work), and J is the transformative effect of the infringing work.
K = constant, based on judge and circuit biases. for second circuit, K = 0.4, for ninth circuit, K = 0.8, for federal circuit, K = 0.000001
L = level of literal copying or sampling, where sampling of audio in the 6th circuit means L=1, but using a nonliteral storyline in the 9th circuit might mean L=0.1
Via this simple equation, any jury of our peers can readily and easily predict the proper outcome for any copyright dispute. Just let the jury chose values for each of A, B, C, D, E, F, G, H, I, J, K and L and you have a result!
Most amazingly, this absolutely ensures that the jury will decide the copyright dispute on the merits, and not at all based on which attorneys the liked more, which decision gets them home sooner, or byzantine copyright law jury instructions from the manual on every attorney's law shelf.
Note this is just a jury instruction, so its not appropriate for summary judgment. Moreover, in most cases the values will be imaginary, which could complicate computation of damages.
p.s. patent pending. ;) -DH
I shall forward this to Judge Posner and see what he thinks.
Love the formula. It's even harder to follow than a 9th Ciucuit decision or a three-way split unanimous decision.
I've faced the same thing in crafting jury instructions when the (primary) issue is fair use. Sure, it's all well and good to say "look at these factors" -- but then what? How does the jury weigh them? What is the ultimate issue for them to decide? And doesn't the jury need to know the vast body of caselaw that helps put content to these factors?
Then again, perhaps a free-for-all is the best we can expect. I once had a fair use summary judgment in my client's favor overturned by the Ninth Circuit, primarily (I think) because my client "used it without permission." At least the Ninth Circuit kept saying that was a factor. Um, even though "use without permission" is a *prerequisite* to asserting a fair use defense. (As I've later analogized, that's like saying "but you killed the guy" helps negative a self-defense defense.)
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