No, A Jury In A Trial Is Not A Representative Sample Of Views On Copyright

Overhype

from the nice-try-though! dept

After the Jammie Thomas trial, the RIAA tried to claim that the juries in both her trials represented a representative sample of the nation’s views on copyright law. Now, following the Joel Tenenbaum trial, entertainment industry lawyer Ben Sheffner is making the same claim again:

On the Internet, (almost) everyone hates copyright. In fact that’s one of the reasons I started this blog. Every day, for years, I would read about how copyright is stupid, outmoded, destructive, and downright evil. But I knew that the “law” I would read about bore scant resemblance to the actual law, and the way that businesses that earn revenue from production and exploitation of copyrighted works actually function. And I knew that not everyone harbored such vitriol and venom for the copyright owners, who routinely win major victories in the courts and the political arena.

The Jammie Thomas-Rasset and Joel Tenenbaum verdicts have highlighted this chasm between the “Internet” view of copyright, and what average citizens think of the topic. Now three juries, made up of 34 ordinary people from the Minneapolis and Boston areas, none of whom had any connection to the entertainment industry, have passed judgment upon use of p2p networks to obtain music without paying for it — an activity that is excused, or even celebrated, in many quarters of the web. And all three of those juries demonstrated through the very large damages awards they imposed that they view illegal downloading and “sharing” as wrong, and deserving of harsh sanction.

While I’m sure that sounds good and is comforting to folks who make their living by profiting off of government granted monopolies, it’s not even close to accurate. First of all, a jury is hardly a representative sample. The lawyers on both sides work hard to weed out those who actually are knowledgeable on these topics. In the Tenenbaum case, for example, any juror who admitted to using any file sharing apps was ruled out from serving on the jury. I have no problem with this from a legal standpoint, and totally understand why it happens, but it highlights that these juries are not a representative sample by any means.

Second, trials have very, very specific rules (many of which Tenenbaum’s team tried to break), which limit what sort of information you can share about various issues. So at no point could there be a real conversation on copyright or business models. The jury was not an informed audience.

Third, Sheffner tries to use the fact that all three juries did not assign the statutory minimums as a sign that they felt that file sharing deserved harsh punishment, but again, that’s not necessarily true (though, certainly it could be). There’s a tremendous amount of evidence out there on jury decision making, and the award amounts that juries give can be heavily influenced by numerous factors, including something as simple as the numbers tossed out by those involved in the case. A few separate studies have shown that when numbers are discussed, it gives the jurors an anchor and they just see those numbers as acceptable, rather than comparing the numbers to the actual crime. Given that, the fact that the jury chose a number towards the lower end of the statutory range suggests that the jury actually didn’t think the punishment should really be that harsh.

Fourth, in both of these cases it was clear that the defendants broke the law. The jury’s job is made clear to them, and it is to make a determination on the law (and in the Tenenbaum case, even that was taken out of their hands by Tenenbaum’s admission). Saying that this is somehow representative of the actual views on the activities is again, quite misleading.

Fifth, it’s no surprise that those who don’t follow these issues closely believe the idealistic story about copyright being an undeniable good thing. It’s what most of us were taught, and if you don’t know the details or haven’t been directly impacted by draconian copyright laws, you probably believe that myth that many of us were taught from a very young age. So you put a bunch of those folks together on a jury, limit their ability to be educated, and of course they’re going to default to thinking “copyright = good.”

Over the years, I’ve found that most people who don’t pay much attention to these things believe that story of copyrights and patents being the “root cause” of American creativity and innovation. It’s a fable that sounds so good as youngsters, and why not? Yet, when you talk to such folks one on one or in small groups, and start going through the real details… and when you explain to them how copyright is used to stifle speech and innovation, and when you show them the new and unique business models that don’t rely on copyright, they recognize the issue. When you finally show them the evidence — the studies upon studies about the harm done by such things, it’s not hard for them to realize that there’s a real problem with copyright laws, and that problem isn’t the fact that some kids aren’t paying for downloads.

The only people I’ve found who resist such things are those whose own income in some way depends on exploiting copyright for their own advantage. There may be others, certainly, but in my experience it’s incredibly rare. Not only that, but I’ve actually found that even within much of the entertainment industry, there’s an understanding of this as well. I can’t even begin to tell you the number of industry insiders who pull me aside at entertainment industry events to say (quietly) that they agree with a lot of what I say, but there are too many legacy issues to deal with to move forward strategically.

So, claiming that these juries are somehow representative samples of the views of people on file sharing is not even close to being accurate, no matter how much a small group of entertainment industry lawyers hope it’s so.

Filed Under: copyright, joel tenenbaum, juries, public perception