Metropolitan News-Enterprise


Monday, April 10, 2023


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Man Who Said He Was ‘Amenable’ to Bench Trial Didn’t Waive Right to Jury—Ninth Circuit


By a MetNews Staff Writer


A pro se defendant in a copyright case who told the magistrate judge that he was “amenable” to a bench trial on remanded issues did not effectively waive his right to a jury and, on a second remand, is entitled to have a jury decide those issues, the Ninth U.S. Circuit Court of Appeals has held.

The defendant, Kraig Kast, had been determined by a jury to have used three photos on his website without permission of the copyright proprietor, but the Ninth Circuit, in a 2019 opinion, remanded for a determination as to whether the infringement was willful and for a recalculation of statutory damages. On remand, Magistrate Judge Donna M. Ryu of the Northern District of California made the determinations without hearing testimony, in apparent compliance with the 2019 opinion, which said:

“The jury… found Kast’s vicarious and contributory infringement were willful. Kast claims the district court erred when it instructed the jury that it could find that Kast’s infringement was willful if Kast ‘should have known that [his] acts infringed plaintiffs’ copyright.’ We agree and remand the issue of willfulness to the district court on the existing record.”

Reversal came in a memorandum opinion signed by Judge M. Margaret McKeown and Senior Judges Michael Daly Hawkins and Sidney Thomas. (Hawkins authored the published 2019 opinion and McKeown and Thomas joined in it.)

They said in Wednesday’s opinion:

“Kast argues his Seventh Amendment right to a jury trial has not been satisfied because no properly instructed jury has ever determined willfulness or statutory damages. We agree.”

At an early point in the proceedings, the judges noted, Kast demanded a jury trial and never withdrew that demand.

They acknowledged that following the 2019 remand, Kast said he was “amenable to an expedited bench trial.” As they sized it up:

“[W]e find Kast’s ‘amenab[ility]’ to an expedited bench trial cannot be read as a knowing participation in a bench trial, particularly where, as here, Kast did not have the opportunity to participate in a second trial of any kind. Our practice to ‘indulge every reasonable presumption against waiver’ and construction of pro se submissions liberally weigh heavily in Kast’s favor….Thus, Kast did not waive his Seventh Amendment jury trial demand, and the proper remedy is remand for a new trial to determine willfulness and statutory damages.”

The case is Erickson Productions, Inc. v. Kast, 21-15459.


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