In an Order last week, Judge McMahon asked the lawyers in a copyright infringement case over the young adult book series Crave (see the operative complaint here) how they planned to conduct a forthcoming jury trial, given the massive volume of evidence—both the book series itself and, separately, the plaintiff’s unpublished manuscripts from which the series was allegedly stolen.

The case was filed by family law attorney and aspiring novelist Lynn Freeman who for years sought to publish her book Blue Moon Rising. After having failed to find a publisher, she came across a book, Crave by Tracy Wolff, with striking similarities. Wolff, it turned out, had the same literary agent as Freeman. Freeman would later sue for copyright infringement. (For more case background, see the New Yorker’s feature on the case).

Judge Stanton denied summary judgment, agreeing with Magistrate Judge Netburn’s report and recommendation that there were fact issues about whether Wolff had access to Freeman’s manuscripts (via their common agent) and whether Wolff “copied parts, large or small.”

The case was assigned to Judge McMahon, who initially suggested that the parties agree to a bench trial because, among other things, it would make it easier to manage the volume of evidence: “I promise I will read everything that either side wants to submit to a trier of fact — all the books, all the notes and all the drafts.”

The parties’ decision to proceed with a jury trial is what gave rise to last week’s Order, and Judge McMahon’s query on how to present the evidence. As Judge McMahon explained, it would not suffice for the manuscripts by Freeman or the Crave series itself to be admitted into evidence merely by way of summaries:

Summary charts certainly can be both shown to the jury and sent back to the jury room if they are admitted as evidence under the “summaries of voluminous material” rule, pursuant to Fed. R. Evid. 1006. But this is a copyright case. . . . [T]he trier of fact gets to decide what is protectible and what is not, and cannot reach any conclusions on the issue of substantial similarity without comparing the original versions of the allegedly infringing and infringed works. So . . . the underlying works must be admitted into evidence, and the jury must be told that they, not any summaries of their contents that might be used by counsel as illustration, are the evidence.

…

I am looking for guidance about how other courts have handled this issue — if indeed any other courts have confronted a jury trial in a copyright case that involves over 10,000 pages of allegedly infringed and infringing material.

She asked for briefing by the end of this week.

On a separate note, Judge McMahon’s order makes clear that she rigorously enforces the “chess clock” time limits for trials:

Once I see how long you think this trial will take, I will tell you how long you will actually be allowed to be on your feet. . . . My law clerks will be keeping time throughout the trial. Once you have used up the number of hours that I allot you for questioning witnesses, there can be no further questioning by your client.

Now, you may think I am kidding; perhaps you have participated in a civil trial where the judge, having given you a certain number of hours to examine witnesses, did not stop you when you run out of time. I am not that judge. I have enforced this rule at complicated trials in the past; I will do so in your case as well.