Jury instructions go missing

Jury instructions are one of those things that few people, not even most lawyers, think about very often.  But if you are involved in a trial, they can be vitally important.  The ways in which juries are instructed on particular points of law can determine the outcome of a case, so litigants and the lawyers must spend a lot of time arguing over which instruction should be given and how they should be worded.  Many appeals revolve around the accuracy and appropriateness of the instructions that were given to a jury.

Because they are so important and potentially so contentious, most states develop model jury instructions, or “pattern” instructions, as they are called in North Carolina, for a great many legal doctrines and situations.  Access to these pattern instructions is important for litigants.  Although their use is not required in North Carolina, using a pattern instruction creates a presumption that the jury was properly instructed.  Also, specific variations that a litigant wants a judge to make in an instruction are best proposed as amendments to the pattern.

I admit that I have never consulted the North Carolina Pattern Jury Instructions.  Nevertheless, I was dismayed to receive this announcement from the North Carolina Bar Association telling me that the free access I had to the Pattern Instructions as a member of the Bar would soon be ending. The story it tells is interesting and instructive.

First, the Pattern Jury Instructions are developed by the North Carolina Conference of Superior Court Judges.  That is, they are created by state officials as part of their official duties.  But unlike documents created by Federal employees, there is a copyright in these instructions, and that copyright has been given to the University of North Carolina School of Government.  The SOG, in turn, has given a vendor called CX Corp an exclusive license to distribute the instructions.  For over a decade the Bar Association contracted with CX to provide access as a member benefit to NC lawyers, but that contract is expiring and efforts to renew it have failed.  A familiar story to librarians, of course, and probably due to the same, familiar reason that most licensing renewals fail — a demand for more money than the licensee feels it can pay.

For many North Carolina lawyers, the impact of this new regime will be minimal.  Medium and large firms will just factor in the cost and effort of getting an individual subscription to the Pattern Jury Instructions.  Presumably the UNC School of Government will realize more revenue from this gifted copyright.  But I worry about pro se litigants and those who are represented by solo practitioners or small firms.  Those folks might well be at a disadvantage in a crucial phase of a trial, the debate about how the jury will be instructed.  They will either have to scrape up the money to purchase a print or electronic version of the pattern instructions, find one of the relatively few public law libraries where they can consult them, or else risk advocating for instructions that will be more easily challenged and undermined.

From this unfortunate situation, I want to draw two points that I think are of general relevance to those of us who think about copyright matters.

First, it is an important reminder that we cannot assume that public documents intended for a public purpose are necessarily public domain.  The familiar provision in U.S. copyright law that puts documents created by the federal government in the public domain is, obviously, only about federal documents.  The states can and sometimes do claim copyright in official state documents.  They are often used as revenue sources, especially if there is a target audience of professionals, like building contractors or lawyers, from whom payment can be readily expected.

The problem with this situation is that the different states take different approaches to what is and is not in the public domain, and also that a single state may be wildly inconsistent about its approach to different types of documents it creates.  In most states, most official documents are public domain, at least in the practical sense that they are reasonably accessible without cost.  But odd things, like building codes or jury instructions or even an electronic database of the state’s laws, many be exclusively behind a pay wall.

The other instructive point in this is the realization that copyrights, especially those held by state and local government, may be used to enact policy goals that have nothing to do with copyright.  The purpose of copyright is, explicitly, to incentivize creation.  Presumably the NC Conference of Superior Court Judges did not need the promise of royalties in order to compile the Pattern Jury Instructions; creating those instructions was simply a part of good judicial practice for the state.  So here we had a copyright that wasn’t doing any work.  What can we do with it; how can we use it to make some money?  Here’s an idea, let’s give it to the UNC School of Government as an added revenue source!  They can exploit it in a way that would be inappropriate for the judges, and the state’s flagship public university can reap the benefit.

This isn’t necessarily a bad idea; at least, the purpose is worthwhile.  But it is a public policy that copyright was not intended to serve, and it is worth noting that this can happen, and that not all the policies that are supported this way will be equally laudable.  In the ideal world, states would be more transparent about what they claim a copyright in and why.  And elected representatives should be given the chance to approve, or not, those policy ends that are furthered by the exploitation of copyrights claimed in state documents.  At least that way, there would be some accountability when copyright is used for purposes other than that for which it was instituted.

While I was preparing this post, I encountered a somewhat parallel story about another legal document — the Bluebook that is the required citation manual for law students, lawyers, and litigants in many U.S. courts.  As the blog TechDirt reports, this is another case where access for impoverished litigants may be important, but copyright protection allows access restrictions that impose financial barriers.  Of course, unlike the Pattern Jury Instructions, the Bluebook is a privately created document, so there is less confusion about the appropriateness of the initial copyright.  Nevertheless, Carl Malamud and his Public Resource allies have mounted a campaign asking that the Bluebook be made more accessible and, as it turns out, finding grounds to challenge the continued existence of a copyright in the work.  Fascinating reading.