Courthouse Furor Over the COVID Pandemic Did Not Warrant New Trial for Damages, Holds Second Circuit

In ABKCO Music, Inc. v. Sagan, No. 20-3816 (2d Cir. Oct. 6, 2022), the Second Circuit reviews cross-appeals from a jury trial of a Copyright Act case. Among the issues presented was whether the jury deliberation, taking place against the backdrop of the COVID lockdown, was unfairly rushed.

The defendant William Sagan owned a trove of recorded concert performances that he posted on the internet (through two LLCs that he set up) for downloading and streaming. “In 2015, a collection of music publishers (together, the ‘Publishers’) brought this suit under the Copyright Act, alleging that defendants infringed the Publishers’ copyrights in 197 musical works that were performed in the live concert recordings. The Publishers sought about $30 million in damages and a permanent injunction. On March 30, 2018, the United States District Court for the Southern District of New York (Ramos, J.) held on summary judgment that the defendants had no valid licenses and therefore infringed each of the musical works and that Sagan was personally liable.”

Among the issues on appeal was whether the damage award was excessively low. The Copyright Act allows awards between $750 and $150,000 per work if the infringement is “willful” and between $750 and $30,000 per work if not willful. 17 U.S.C. § 504(c). “When trial began on March 2, 2020, news of the pandemic was spreading. On March 10, the district court told counsel that ‘we may be surrounded by the National Guard tomorrow morning, . . . . I want to get this done as soon as possible, okay?’ App’x at 1889. The next day, the district court told counsel that ‘[t]he world is falling apart around us, and I would like to get this done . . . it would be very, very helpful to get this done as soon as possible.’”

A juror (Juror 5) stated in open court that he was concerned about possibly infecting his mother (whom he reported had lupus) and, “quite frankly, money [damages], to me, is not worth the life of my mother or any of the lives of the jurors in there who also there are several who are older, and that’s my concern.”

The court instructed the jury that they could remain at the courthouse as long as they needed to deliberate. But just one hour later, the jury came back with the $189,000 verdict. The Publishers’ motion for a new damages trial argued that “the trial was fundamentally unfair because the jury was allegedly unable to deliberate as the COVID-19 pandemic was worsening in New York City.”

While the publishers contended that the low damage award “was a rushed and ill-considered result of the encroaching pandemic,” the Second Circuit affirms the denial of a new trial. It cites several factors supporting the district court’s decision to send the case to the jury. “[T]he judge in this case told the jury that it could ‘stay as long as [it] wish[ed]’ . . . . [The] jury in this case awarded damages within the permissible statutory range.” Juror 5’s concerns were addressed: “[T]hose concerns revealed only an uneasiness to proceed in the face of the pandemic, not an unwillingness to engage in fair and thorough deliberations. Juror Five made this plain: ‘I’m not trying to get a hung jury. I want to do my job. I want to do my 17 duty. So does everyone in this room, and we plan on doing it fairly.’” Finally, “the Publishers failed to ‘persuasively draw any connection between the potential impact of the COVID-19 pandemic and the 5 specific damages awarded[.]’”

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