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"May 2020" Ninth Circuit revisions to its Manual of Model Civil Jury Instructions

The Ninth Circuit has revised its Manual of Model Civil Jury Instructions. They are dated "May 2020," but just went up (the Web site still labels them December 2019). The changes were as follows:

  • The Comment to Instruction 9.11 (PARTICULAR RIGHTS—FIRST AMENDMENT—"CITIZEN" PLAINTIFF) adds a note from L.F. v. Lake Washington School District #414, 947 F.3d 621, 626 (9th Cir. 2020) ("members of the public do not have a constitutional right to force the government to listen to their views...[a]nd the First Amendment does not compel the government to respond to speech directed toward it (citations omitted).").
  • The Comment to Instruction 9.12 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEARCH—GENERALLY) now notes Blight v. City of Manteca, 944 F.3d 1061, 1067 (9th Cir. 2019) (concluding search of property with two residences supported by probable cause that suspect controlled whole premises).
  • The Comment to Instruction 9.24 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—DETENTION DURING EXECUTION OF SEARCH WARRANT) now notes Blight v. City of Manteca, 944 F.3d at 1068 (holding that detention of elderly person not per se unreasonable).
  • Instruction 9.25 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—EXCESSIVE (DEADLY AND NONDEADLY) FORCE) has been renamed, and the Comment now notes Orn v. City of Tacoma, 949 F.3d 1167 (9th Cir. 2020), and Tuuamalemalo v. Greene, 946 F.3d 471, 477 (9th Cir. 2019) (concluding that "use of a chokehold on a non-resisting restrained person violates the Fourth Amendment").
  • New instruction 9.26A (Particular Rights—Eighth Amendment—Convicted Prisoner’s Claim of Sexual Assault)
  • The Comment to Instruction 17.3 (COPYRIGHT—SUBJECT MATTER—GENERALLY (17 U.S.C. § 102)) notes that the Supreme Court "has ruled that no copyright protection is available for material authored by a judge or a legislative body acting in an official capacity. See Georgia v. Public Resources, ___U.S.___, 140 S. Ct. 1498 (2020)."
  • The Comment to Instruction 17.5 (COPYRIGHT INFRINGEMENT—ELEMENTS—OWNERSHIP AND COPYING (17 U.S.C. § 501(a)–(b))) now notes Great Minds v. Office Depot, 945 F.3d 1106, 1110 (9th Cir. 2019).
  • The Comment to Instruction 17.17 (COPYING—ACCESS AND SUBSTANTIAL SIMILARITY) deletes a discussion of the inverse ratio rule, replacing it with a citation to Skidmore v. Led Zeppelin, 952 F.3d 1051, 1069 (9th Cir. 2020) (en banc).
  • The Comment to Instruction 17.22 (COPYRIGHT—AFFIRMATIVE DEFENSE—FAIR USE (17 U.S.C. § 107)) now notes Tresóna Multimedia, LLC v. Burbank High School Music Ass’n, 953 F.3d at 648 (observing that use of song in show was for "nonprofit educational purposes and the resulting work was transformative") (noting that although “qualitatively significant” portion of original work was used, because of transformative nature of new material, this factor “did not weigh against fair use”) (commenting that due to transformative nature of newly created work, consumer interested in original work would not substitute the newly created work).
  • The Comment to Instruction 17.25A (COPYRIGHT—AFFIRMATIVE DEFENSE—EXPRESS LICENSE) now notes Great Minds v. Office Depot, 945 F.3d 1106, 1110 (9th Cir. 2019) ([A claim for copyright infringement fails “if the challenged use of the work falls within the scope of a valid license.") (Federal courts “rely on state law to provide the canons of contractual construction, but only to the extent such rules do not interfere with federal copyright law or policy.").
  • The Comment to Instruction 18.1 (SECURITIES—DEFINITIONS OF RECURRING TERMS) now defines "investment contract," "untrue statement of material fact," and "broker."

I have posted a PDF showing the changes.

The Criminal Instructions have been revised as well. I'll try to get a summary of those changes posted shortly.

(09/23/20) (permalink)

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