Intellectual Property Law

A couple of readers have asked me about the jury instructions in the Lori Drew case. The U.S. District court in Los Angeles published the instructions in the court record today, and I'm including them here.

There are two sets of instructions. The preliminary instructions (.pdf) were given to jurors directly after they were empaneled before the trial began. The second set, of course, are the instructions they received before they began deliberations (.pdf).

A judge's instructions to a jury are significant because they can sometimes contain grounds for appeal if lawyers find something objectionable in them or if they find that jurors failed to follow the instructions.

Note that in the first page of the preliminary instructions, the charges refer to someone who has obtained unauthorized access to a computer in furtherance of a "tortuous" act. That should be "tortious." It's correct elsewhere in the document.

The "tortious" element of the charges was the deciding factor that tipped the jurors' verdict from felony convictions to misdemeanor convictions. Drew was charged with four felonies -- three felony counts of obtaining unauthorized access to MySpace's computers with the intention to commit a tortious act (inflict intentional emotional distress on Megan Meier) and one count of conspiracy to obtain unauthorized computer access with the intent of committing a tortious act.

Jurors found that Drew obtained unauthorized access to MySpace's computers in violating the site's terms of service agreement, but they determined that she did not intend to inflict emotional distress on Megan Meier, therefore they convicted her of lesser misdemeanor charges in the three counts involving unauthorized access. On the fourth conspiracy charge, the jury deadlocked. According to statements made by the jury forewoman after the trial was over, eight jurors wanted to convict Drew of the felony conspiracy charge, but four jurors opposed that ruling.

Here's how the jury instructions defined a "tortious" act:

The tort of infliction of emotional distress has four elements: 1) the defendant must act intentionally or recklessly; 2) the defendant's conduct must be extreme and outrageous; and 3) the conduct must be the cause 4) of severe emotional distress. While there is no precise definition, the conduct must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. The defendant's conduct must be more than malicious and intentional; and liability does not extend to mere insults, indignities, threats, annoyances, or petty oppressions.