Moonbug Entm't Ltd. v. Babybus (Fujian) Network Tech. Co., Ltd

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
PartiesMOONBUG ENTERTAINMENT LIMITED, et al., Plaintiffs, v. BABYBUS (FUJIAN) NETWORK TECHNOLOGY CO., LTD, et al., Defendants.
Decision Date20 July 2023
Docket Number21-cv-06536-EMC

FINAL JURY INSTRUCTIONS

EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

The following constitute the Court's proposed Final Jury Instructions in advance of the charging conference on July 21, 2023.

IT IS SO ORDERED.

I. FINAL INSTRUCTIONS
BURDEN OF PROOF - PREPONDERANCE OF THE EVIDENCE

When a party has the burden of proving any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true.

You should base your decision on all the evidence, regardless of which party presented it.

[Court Notes: 9th Cir. Model Instruction No. 1.6.]

JURY INSTRUCTION NO. 2

WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of:

(1) the sworn testimony of any witness;
(2) the exhibits that are admitted into evidence;
(3) any facts to which the lawyers have agreed; and
(4) any facts that I have instructed you to accept as proved.

[Court Notes: 9th Cir. Model Instruction No. 1.9.]

JURY INSTRUCTION NO. 3

WHAT IS NOT EVIDENCE

In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:

(1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.
(2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it.
(3) Testimony that is excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition, some evidence was received only for a limited purpose; when I have instructed you to consider certain evidence only for a limited purpose, you must do so and you may not consider that evidence for any other purpose.
(4) Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

[Court Notes: 9th Cir. Model Instruction No. 1.10.]

JURY INSTRUCTION NO. 4

DIRECT AND CIRCUMSTANTIAL EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may provide a different explanation for the presence of water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience and common sense.

[Court Notes: 9th Cir. Model Instruction No. 1.12.]

JURY INSTRUCTION NO. 5

CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

In considering the testimony of any witness, you may take into account:

(1) the opportunity and ability of the witness to see or hear or know the things testified to;
(2) the witness's memory;
(3) the witness's manner while testifying;
(4) the witness's interest in the outcome of the case, if any;
(5) the witness's bias or prejudice, if any;
(6) whether other evidence corroborated or contradicted the witness's testimony;
(7) the reasonableness of the witness's testimony in light of all the evidence; and
(8) any other factors that bear on believability.

Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes in what they remember. Also two people may see the same event but remember it differently. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.

However if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said. On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. What is important is how believable the witnesses were, and how much weight you think their testimony deserves.

Your evaluation of witness testimony should not be influenced by any prejudice or bias, including unconscious bias.

[Court Notes: 9th Cir. Model Instruction No. 1.14. The Court has modified the instruction.]

JURY INSTRUCTION NO. 6

COPYRIGHT - DEFINED (17 U.S.C. § 106)

Copyright is the exclusive right to copy. This right to copy includes the exclusive rights to or authorize others to:

1. reproduce the copyrighted works;

2. recast, transform, or adapt the work, that is prepare derivative works based upon the copyrighted works, and to perform publicly derivative works based upon the copyrighted audiovisual works;

3. distribute copies of the copyrighted works to the public;

4. publicly perform copyrighted audiovisual works;

5. display publicly a copyrighted audiovisual or graphic work; and

6. perform a sound recording.

It is the owner of a copyright who may exercise these exclusive rights. The term “owner” includes the author of the work and the exclusive licensee of the work. In general, copyright law protects against reproduction, adaptation, public distribution, public performance, public display of identical or substantially similar copies of the owner's copyrighted work without the owner's permission. An owner may enforce these rights to exclude others in an action for copyright infringement.

[Court Notes: 9th Cir. Model Civil Jury Instruction No. 17.2.

This instruction is necessary because it defines copyright, including the exclusive rights granted as part of each copyright, which is necessary for the jury in evaluating whether Babybus infringed these rights.]

JURY INSTRUCTION NO. 7

COPYRIGHT - ELEMENTS - OWNERSHIP AND COPYING (17 U.S.C. § 501(a)-(b))

On the copyright infringement claim as to each disputed work, Plaintiffs first have the burden of proving by a preponderance of the evidence that:

1. Plaintiffs are the owners of a valid copyright; and
2. Defendants copied original expression from the copyrighted work. This includes two elements: “factual copying” and “unlawful appropriation.” Factual copying is the fact of copying as the source for a defendant's work (as opposed to independent creation). Unlawful appropriation is the copying of elements that are protected, as I will further explain.

You are instructed that the Court has already determined that Plaintiffs own valid copyrights in the 42 CoComelon Works at issue for element (1) above.

[Court Notes: 9th Cir. Model Civil Jury Instruction No. 17.5; Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020).

Babybus argues that the instructions should include the sentence “This element contains two separate components: ‘factual copying' and ‘unlawful appropriation.' Moonbug argues that this sentence is not necessary because argumentative and duplicative of other instructions. The Court includes this instruction because it is a more precise statement of the law, as this Court has previously explained in its SJ order. Docket No. 242 (SJ Order) at 8 (“The second prong of copyright infringement analysis-whether the defendant copied protected elements of the copyrighted work (‘Prong 2')-'contains two separate components: copying and unlawful appropriation.' Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc).”). As to the “42 CoComelon works” or “35 asserted copyrights,” the Court uses the former because it intends to decline bifurcation of the trial as described above.]

JURY INSTRUCTION NO. 8

COPYRIGHT - SUBJECT MATTER - GENERALLY (17 U.S.C. § 102)

Plaintiffs are the owners of valid copyrights in 42 CoComelon Works at issue in this case. The CoComelon Works involved in this trial are known as:

1. pictorial works or graphic works, such as two- and three-dimensional works of fine, graphic or applied art;
2. character works, such as characters in comic books cartoons, movies, or television shows;
3. audiovisual works, such as cartoons or television shows in which a series of related images convey an impression of motion when shown in succession; and
4. sound recordings, which are works that result from fixation of a series of musical, spoken, or other sounds.

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