Proposal to the Judicial Council for Changes to California Rule of

Public.Resource.Org Rule Change Application

November 24, 2020

Judicial Council of California

Attention: Chief Counsel (Rule/Form Proposal)

455 Golden Gate Avenue

San Francisco, California 94102-3688

E-mail: [email protected]; [email protected]

Subject: Proposal to the Judicial Council for Changes to California Rule of Court 2.1050

Dear Chief Counsel:

Public.Resource.Org (“Public Resource”) writes to propose a rule change under California Rule

of Court 10.21. Public Resource respectfully requests that the Judicial Council of California

(“JCC”) revise California Rule of Court 2.1050, subdivision (c) (“Rule 2.1050(c)”) to clarify

that the California Civil Jury Instructions (“CACI”) and the California Criminal Jury

Instructions (“CALCRIM”) (collectively, the “Jury Instructions”) are in the public domain.

Public Resource also respectfully requests that the JCC make the corresponding change of

removing all copyright claims and notices from CACI, from CALCRIM, and from related web

pages on the Judicial Branch web site. These changes are consistent with federal copyright law

and with California’s enlightened policy of promoting public access to plain-English jury

instructions.

Public Resource is a 501(c)(3) non-profit corporation, based in California, that seeks to increase

public access to the law. Public Resource appreciates that the JCC has prioritized making the

Jury Instructions both “understandable to the average juror” and “freely available” to the public.

(Judicial Council of Cal., Criminal Jury Instructions (2020) p. ix; Cal. Rules of Court, rule

2.1050, subd. (c).) Public Resource shares these goals and submits this rule change proposal

(“Proposal”) in service of them.

California has set an impressive and important precedent by rendering its Jury Instructions in

“plain English.” (Judicial Council of Cal., Criminal Jury Instructions (2020) p. ix.) The JCC took

this approach explicitly to increase access to the law for jurors. (See Judicial Council of Cal.,

Civil Jury Instructions (2020) p. xxiii.) The JCC additionally worked to increase public access to

the law by posting the Jury Instructions on the Judicial Branch web site. (Cal. Rules of Court,

rule 2.1050, subd. (c).) Public Resource applauds these efforts to increase Californians’ access to

the law.

Unfortunately, Rule 2.1050(c)’s current language, and the various copyright notices associated

with the Jury Instructions, prevent the full realization of these goals. The copyrights implied by

Rule 2.1050(c), and asserted in notices in the text and web pages of the Jury Instructions, do not

comport with federal copyright law. As the United States Supreme Court recently held in

Georgia v. Public.Resource.Org, Inc., under the government edicts doctrine, government

University of California, Berkeley

School of Law

353 Law Building

Berkeley, CA 94720-7200

(510) 643-4800

clinicalprogram@clinical.law.berkeley.edu

www.law.berkeley.edu/SamuelsonClinic

www.law.berkeley.edu

Public.Resource.Org Rule Change Application

officials cannot author, and therefore cannot copyright, works they create in carrying out their

official duties. ((2020) 140 S.Ct. 1498, 1504.) The Jury Instructions are government edicts,

authored by the JCC in its judicial capacity, and are therefore ineligible for copyright protection.

(See ibid.) In addition, the Jury Instructions are insufficiently original to warrant copyright

protection.

Correcting this oversight is crucial. Access to the law is fundamental to California’s

administration of justice. “A person may not be deprived of life, liberty, or property without due

process of law or denied equal protection of the laws.” (Cal. Const. art. I, § 7, subd. (a).)

Accordingly, “ ‘All are entitled to be informed as to what the State commands or forbids.’ ”

(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115, quoting Lanzetta v. New Jersey

(1939) 306 U.S. 451, 453.) Because “ ‘[e]very citizen is presumed to know the law,’ ” “ ‘it needs

no argument to show . . . that all should have free access’ ” to its contents. (Georgia, supra, 140

S.Ct. at p. 1507, quoting Nash v. Lathrop (1886) 142 Mass. 29, 35.) Jury instructions in

particular “ are important because together they state the law that [jurors] will use.” (CACI No.

5000.) Providing the law and legal materials for viewing alone is inadequate. (See Building

Officials & Code Adm. v. Code Technology, Inc. (1st Cir. 1980) 628 F.2d 730, 736 [stating that

the right to freely access the law includes “ a necessary right freely to copy and circulate all or

part of a given law for various purposes”].) To ensure true public access to the law, the public

must be free to analyze the Jury Instructions and reproduce them in other languages and formats.

The proposed changes are thus essential to complying with federal copyright law, to serving the

goals of the JCC, and to protecting public access to the law.

1. Text of the Proposed Rule

The current language of Rule 2.1050(c) implies, and multiple notices on the Jury Instructions and

associated web pages assert, copyrights in the Jury Instructions. As explained below in Section 2,

however, these copyrights do not exist. Public Resource therefore respectfully requests the

following changes.

1.a. Revisions to Rule 2.1050(c) to Reflect the Uncopyrightability of the Jury

Instructions

As currently written, Rule 2.1050(c) implies copyrights that do not exist under federal copyright

law. While the rule states the JCC’s intention to give the public access to the Jury Instructions, it

also allows the JCC to take steps to protect a copyright interest in those same instructions. Public

Resource therefore respectfully requests the following changes to the current rule (with strike-

through indicating deletions and underlining indicating insertions):

The Judicial Council must provide copies and updates of the approved jury

instructions to the public on the California Courts website. The Judicial Council

may contract with an official publisher to publish the instructions in both paper

and electronic formats. The Judicial Council intends that the instructions be freely

available for use and reproduction by parties, attorneys, and the public. The

Judicial Council Jury Instructions are in the public domain and the Judicial

Council does not claim copyright in them., except as limited by this subdivision.

The Judicial Council may take steps necessary to ensure that publication of the

Public.Resource.Org Rule Change Application

instructions by commercial publishers does not occur without its permission,

including, without limitation, ensuring that commercial publishers accurately

publish the Judicial Council’s instructions, accurately credit the Judicial Council

as the source of the instructions, and do not claim copyright of the instructions.

The Judicial Council may require commercial publishers to pay fees or royalties

in exchange for permission to publish the instructions. As used in this rule,

“commercial publishers” means entities that publish works for sale, whether for

profit or otherwise.

Public Resource commends the JCC for Rule 2.1050(c)’s stated intention, “that the instructions

be freely available for use and reproduction by parties, attorneys, and the public.” The proposed

changes fulfill that intention, aligning Rule 2.1050(c) with copyright law by clarifying that the

Jury Instructions are in the public domain. Specifically, the changes remove mention of

permissions and royalties, which imply copyright protection, while maintaining the JCC’s right

to contract with an official publisher or otherwise certify the accuracy of its official version of

the Jury Instructions.

1.b. Removal of Copyright Notices Within the Jury Instructions and on the

Judicial Branch Web Site

Public Resource also requests that the JCC conform its notices about the copyright status of the

Jury Instructions with the law by removing all copyright claims from the Jury Instruction

documents and corresponding web pages.

Multiple notices attribute copyrights in the Jury Instructions to the JCC or LexisNexis Matthew

Bender & Company (“Matthew Bender”). These include notices in the CACI and CALCRIM

documents themselves, a “Notice to Users” on the main web page hosting the Jury Instructions,

and a notice on the web page for CACI. These notices assert copyrights that do not exist under

federal copyright law. Accordingly, these notices are invalid, and potentially confusing to the

public as to how individuals and organizations may “use” or “reproduce” the Jury Instructions.

(Cal. Rules of Court, rule 2.1050, subd. (c).) Public Resource therefore requests the removal of

all the notices and attributions described below and any other notices that may exist that assert

1.b.1. CACI Title Page Notices

Public Resource requests that the JCC remove the following CACI Title Page Notices, which

appear on the title pages of all print and digital editions of CACI:

claimed by the Judicial Council of California to the Table of Contents, Life

Expectancy Tables, Table of Statutes, Table of Cases, Index, or the Tables of

Related Instructions.

No copyright is claimed by Matthew Bender & Company to the jury instructions,

verdict forms, Directions for Use, Sources and Authority, Secondary Sources,

User’s Guide, Life Expectancy Tables, or Disposition Table.

Public.Resource.Org Rule Change Application

(Judicial Council of Cal., Civil Jury Instructions (2020) p. ii.) These notices attribute various

copyrights in CACI to the Judicial Council or Matthew Bender. (Ibid.) Public Resource requests

removal of the CACI Title Page Notices because they assert copyrights that do not exist under

federal copyright law.

1.b.2. CACI “Footer Attributions”

Public Resource also requests that the JCC remove the attributions to either the JCC or Matthew

Bender on the footer of each page of CACI. Currently, these “ Footer Attributions” appear as

follows in the PDF version of CACI available on the Judicial Branch web site (“CACI PDF”):

(Judicial Council of Cal., Civil Jury Instructions (2020) p. 1.) Or:

This version provided by LexisNexis® Matthew Bender®, Official Publisher,

800-533-1637, store.lexisnexis.com, for public and internal court use

(Judicial Council of Cal., Civil Jury Instructions (2020) p. xxxviii.) These footer attributions

appear to express use rights.

(Footer attributions do not appear in CALCRIM and appear

differently in CACI editions published by different platforms.

)

Public Resource requests removal of these footer attributions from each page of CACI because

they suggest copyrights that do not exist under federal copyright law.

1.b.3. CALCRIM Notices

Public Resource also requests that the JCC remove the following notices, which appear on the

title pages of all print editions of CALCRIM and of the PDF of CALCRIM available on the

Judicial Branch web site (“CALCRIM PDF”):

the Tables of Related Instructions, Table of Cases, Table of Statutes, or Index.

Group. No copyright is claimed to the text of the jury instructions, bench notes,

Public Resource interprets these footer attributions as intending to claim copyright,

though neither is in the form of a copyright notice: neither attribution includes a publication year;

additionally, the Matthew Bender footers do not include the symbol ©, “copyright” or “copr.” to

indicate a copyright. (See § 401.)

(Compare Judicial Council of Cal., Civil Jury Instructions (August 2020) Instruction

reserved. See front matter for a listing of Judicial Council Task Force and Advisory Committee

claim to original U.S. Government Works.”] with Judicial Council of Cal., Civil Jury

Instructions (2020) p. xxxviii [“This version provided by LexisNexis® Matthew Bender®,

Official Publisher, 800-533-1637, store.lexisnexis.com, for public and internal court use.”].)

Public.Resource.Org Rule Change Application

authority, other Task Force and Advisory Committee commentary, or references

to secondary sources.

(Judicial Council of Cal., Criminal Jury Instructions (2020) p. ii.)

The new 2020 CALCRIM Supplement also includes the following notice:

Tables of Related Instructions, Table of Cases, Table of Statutes, or Index.

No copyright is claimed to the text of the jury instructions, bench notes, authority,

other Task Force and Advisory Committee commentary, or references to

secondary sources.

(Judicial Council of Cal., Criminal Jury Instructions (Sept. 2020 supp.) p. ii.)

Similar to the CACI Title Page Notices, these CALCRIM Notices assert copyrights attributed to

the JCC and Matthew Bender. (Judicial Council of Cal., Criminal Jury Instructions (Sept. 2020

supp.) p. ii.) Public Resource requests removal of the CALCRIM Notices because they assert

copyrights that do not exist under federal copyright law.

1.b.4. Web Page Notices

There are various additional copyright notices on the California Judicial Branch web site related

to the Jury Instructions. Public Resource requests the removal of these notices. A “Notice to

Users” appears on the California Jury Instructions homepage. It states:

The Judicial Council of California owns the copyright in the Jury Instructions,

and in posting the Jury Instructions on the Worldwide Web, the Judicial Council

seeks to make the instructions available to the public and hereby grants members

of the public a nonexclusive license to reproduce or modify the jury instructions,

except as limited hereinafter.

The nonexclusive public license granted in the preceding paragraph does not

extend to any commercial publisher for purposes of reproducing the instructions

(in any format), preparing derivative works based on them, or publicly

distributing or displaying copies of them. The Judicial Council will consider

licensing commercial publishers on a case-by-case basis. For purposes of this

license, “commercial publishers” means entities that publish works for sale,

whether for profit or otherwise.

(Cal. Jury Instructions, Home, <https://perma.cc/M465-S2QZ> [as of Oct. 8, 2020].) This notice

asserts that the JCC owns a copyright in the Jury Instructions, ibid., which is incorrect. Based on

the asserted copyright, the Notice to Users also purportedly grants the public a nonexclusive

license that does not extend to any “ commercial publisher.” (Ibid.) The definition of commercial

publisher is broad and unclear; more importantly, public domain materials are available to all,

including commercial actors. Public Resource requests that this Notice to Users be removed or

modified to state clearly that the Jury Instructions are in the public domain.

Public.Resource.Org Rule Change Application

The web page that links to the CACI PDF includes another set of copyright notices:

Contents, Table of Statutes, Table of Cases, Index, or the Tables of Related

Instructions.

Group. No copyright is claimed to the text of the jury instructions and verdict

forms, Directions for Use, Sources and Authority, or other Advisory Committee

commentary, User’s Guide, Life Expectancy Tables, or Disposition Table.

(Cal. Civil Jury Instructions, Home, <https://perma.cc/GK6H-756N> [as of Oct. 8, 2020].) (The

web page that links to CALCRIM does not include any copyright notice.) Public Resource

requests removal of these notices because they assert copyrights that do not exist under federal

To comport with copyright law and provide clarity to the public, Public Resource requests the

proposed changes to Rule 2.1050(c) and the removal of all copyright notices and attributions in

the Jury Instructions and all associated web pages.

2. Description of the Problem to Be Addressed

The problem to be addressed is twofold. As currently written, Rule 2.1050(c) implies that

notices on the Jury Instructions and on the corresponding Judicial Branch web pages claim

But the Jury Instructions are not eligible for copyright protection, for at least three reasons. First,

because law is not copyrightable, and the Jury Instructions are law, the Jury Instructions are not

eligible for copyright protection. Second, because the JCC authored the Jury Instructions in its

judicial capacity, the Jury Instructions, whether or not they are law, are not copyrightable under

the government edicts doctrine. Third, the Jury Instructions are insufficiently original to warrant

The Supreme Court’s recent decision in Georgia v. Public.Resource.Org, Inc., supra, removed

any ambiguity about whether documents such as the Jury Instructions are protectable by

case, it is time for the JCC to revise Rule 2.1050(c) and remove the copyright notices on the Jury

Instructions and related web pages.

2.a. The Jury Instructions Are Ineligible for Copyright Because the Law

Belongs to the Public Domain.

First, the Jury Instructions are not copyrightable because they constitute “a statement or

compendium of the law.” (Judicial Council of Cal., Civil Jury Instructions (2020) p. 1.) Under

both longstanding and recent precedent, law is in the public domain.

Public.Resource.Org Rule Change Application

It is well settled that “no one can own the law.” (Georgia, supra, 140 S.Ct. at p. 1507.) In 1834,

the Supreme Court rejected a claim of copyright ownership in judicial opinions and stated that

judges “cannot confer on any reporter any such right.” (Wheaton v. Peters (1834) 33 U.S. 591,

668.) In 1888, in Banks v. Manchester, the Court expanded on Wheaton to preclude copyright in

all judicial works, including judicial opinions and nonbinding explanatory materials, whether “a

declaration of unwritten law, or an interpretation of a constitution or statute.” ((1888) 128 U.S.

244, 253.)

Because the “authentic exposition and interpretation of the law” is “binding [for] every citizen,”

Banks, supra, makes clear that the law must be “free for publication to all.” (128 U.S. at p. 253.)

Drawing on this foundational principle, the Court of Appeals for the Fifth Circuit, in an en banc

decision, “read Banks, Wheaton, and related cases consistently to enunciate the principle that ‘the

law,’ whether it has its source in judicial opinions or statutes, ordinances or regulations, is not

subject to federal copyright law.” (Veeck v. Southern Bldg. Code Cong. Internat., Inc. (5th Cir.

2002) 293 F.3d 791, 800.)

The Jury Instructions are law: they restate what is contained in statutes and judicial opinions and

communicate that law to juries, who use the Instructions to apply the law to the facts of a case to

make decisions. Because the Jury Instructions are “an accurate statement of the law,” the Jury

Instructions belong to the public domain. (Judicial Council of Cal., Civil Jury Instructions (2020)

p. 1.)

2.b. The Jury Instructions Are Ineligible for Copyright Because They Are

Government Edicts Authored by the JCC in Its Judicial Capacity.

Under copyright law’s government edicts doctrine, the JCC cannot claim copyright in the Jury

Instructions because the JCC authored them while acting in its official, judicial capacity. This is

true whether the Jury Instructions are the law or simply legal materials that do not have the force

of law. (See Georgia, supra, 140 S.Ct. at p. 1506.)

The government edicts doctrine provides that government officials cannot, for purposes of

section 102, subdivision (a) of the Copyright Act, “author” the works they create in carrying out

their official duties; they therefore cannot claim copyright in these works. (Georgia, supra, 140

S.Ct. at p. 1504.) “[C]opyright does not vest in works that are (1) created by judges and

legislators (2) in the course of their judicial and legislative duties.” (Id. at p. 1508.) This applies

regardless of whether the materials in question carry the force of law. (Id. at p. 1506.) The JCC,

acting under authority given to it by § 6 of the California Constitution, produced the Jury

Instructions while acting in its judicial capacity. The Jury Instructions as a whole are thus

uncopyrightable government edicts that belong to the public domain.

In Georgia, supra, the United States Supreme Court considered the copyrightability of

annotations in the Official Code of Georgia Annotated (“OCGA”). Neither party challenged that

the statutory portions of the OCGA were in the public domain. (Code Revision Com. for Gen.

All further statutory references are to Title 17 of the United States Code unless otherwise

indicated.

Public.Resource.Org Rule Change Application

Assem. of Georgia v. Public.Resource.Org, Inc. (11th Cir. 2018) 906 F.3d 1229, 1232, aff’d sub

nom. Georgia.) But while Georgia did not assert copyright in the statutory text or numbering of

the OCGA, it claimed that the annotations were copyrightable because they did not carry the

“force of law.” (Georgia, supra, 140 S.Ct. at p. 1511.) The Court disagreed, holding that the

annotations, which were authored by the Georgia Code Revision Commission (“Commission”),

were not copyrightable. (Id. at p. 1504.)

To determine whether the annotations in the OCGA were government edicts that belonged to the

public domain, the Court first determined whether the Commission was a government entity or

official ineligible for copyright authorship. (Georgia, supra, 140 S.Ct. at p. 1508.) It found that

the Commission, a Georgia-state entity comprised of legislators and others, funded by the

legislative branch and staffed by Georgia’s Office of Legislative Counsel, indeed qualified as a

government entity (there, a legislator) engaged in the creation of law. (See id. at pp. 1504, 1508.)

Second, the Court evaluated whether the Commission produced the OCGA within the course of

its official duties. (Id. at p. 1509.) The Court found that it did because the Commission was

acting in its legislative capacity when it produced the OCGA. (Ibid.) The Court found that the

Commission authored the annotations in its official, legislative capacity even though Matthew

Bender prepared them in the first instance pursuant to a work-for-hire agreement. (See id. at p.

1508.) Accordingly, the entire OCGA, including the annotations, was a government edict and

therefore not copyrightable. (Ibid.)

Just as no copyright could be claimed in the statutory portions of the OCGA, the annotations to

the OCGA, or in judicial opinions and their headnotes and syllabi, the JCC cannot copyright the

Jury Instructions, because it authored them while acting in its official, judicial capacity. (See

Georgia, supra, 140 S.Ct. at pp. 1508–1509; Banks, supra, 128 U.S. at p. 253.) This is true with

respect to all the components of the Jury Instructions, not just the text of the jury instructions

themselves: other components, such as forms, tables, indices, and guides, are analogous to the

OCGA annotations in Georgia and the headnotes and syllabi in Banks. Accordingly, the Jury

Instructions as a whole are government edicts and belong to the public domain.

2.b.1. The Jury Instructions Are Created by the JCC, Which Is a Judicial

Entity.

The first step in determining whether the government edicts doctrine applies is whether the

author was a judicial, legislative, or other qualifying governmental official or entity. (Georgia,

supra, 140 S.Ct. at p. 1508.) The author of the Jury Instructions is the JCC. Specifically, the

authors are committees of the JCC—the Advisory Committee on Civil Jury Instructions and the

Advisory Committee on Criminal Jury Instructions (collectively, the “JCC Advisory

Committees”)—which it established to perform “duties of the council authorized or imposed by

law.” (Gov. Code § 68501; Judicial Council of Cal., Criminal Jury Instructions (2020) p. i;

Judicial Council of Cal., Civil Jury Instructions (2020) p. i.) In addition, the JCC endorses the

Jury Instructions, maintains the process for updating and amending the Jury Instructions, and

circulates proposed amendments to the Jury Instructions for public comment before publication.

(Cal. Rules of Court, rule 2.1050, subds. (b), (d).)

The JCC is a government entity for purposes of the government edicts doctrine. The California

Constitution establishes the JCC under the judicial power of the Supreme Court. (Cal. Const. art.

Public.Resource.Org Rule Change Application

VI, § 6.) The majority of voting members of the JCC are judges, including the Chief Justice, one

other justice of the Supreme Court, three justices of the Court of Appeal, and ten Superior Court

judges. (Cal. Const. art. VI, § 6, subd. (a).) The majority of the members of the JCC Advisory

Committees are California Court of Appeal justices and Superior Court judges. (Judicial Council

of Cal., Civil Jury Instructions (2020) p. xix; Judicial Council of Cal., Criminal Jury Instructions

(2020) p. v.)

The JCC and the JCC Advisory Committees also have non-judge members. These include

practicing attorneys, academics, and, in the case of the JCC, one member from each house of the

Legislature. (Cal. Const. art. VI, § 6, subd. (a); Judicial Council of Cal., Judicial Council

Members, <https://perma.cc/TBJ3-Q9YA> [as of Oct. 8, 2020]; Judicial Council of Cal., Civil

Jury Instructions (2020) p. xix; Judicial Council of Cal., Criminal Jury Instructions (2020) p. v.)

This membership make-up is analogous to that of the Commission in Georgia: the majority of

Commission members were legislators, but it also included non-legislator members. (See

Georgia, supra, 140 S.Ct. at p. 1504.) The Court nonetheless concluded that the Commission

was a legislative entity. (Id. at p. 1508.) Similarly, the JCC is a judicial entity for purposes of the

government edicts doctrine. (See ibid.)

The contributions of individual JCC Advisory Committee members to the Jury Instructions are

also analogous to the Georgia Commission members’ contributions to the OCGA. There,

legislators, legislative staff, non-legislators, and representatives from the publisher Matthew

Bender contributed to the OCGA. (Georgia, supra, 140 S.Ct. at p. 1505.) Here, in much the same

way, the JCC Advisory Committees were “assisted by a group of staff attorneys”

and by

Matthew Bender. (See id.; Judicial Council of Cal., Criminal Jury Instructions (2020) p. ix;

Judicial Council of Cal., Civil Jury Instructions (2020) p. xxiii.) Although, in Callaghan v. Myers

(1888) 128 U.S. 617, 647, the United States Supreme Court protected a non-judge’s copyright

interest in “the result[s] of [the author’s] intellectual labor,” the situation here is distinguishable

because the staff attorneys and non-judges who assisted in the preparation of the Jury

Instructions worked under the JCC’s authority, as set forth in California Rule of Court 10.70.

(See id. at pp. 645–647.)

The approval processes for the OCGA and the Jury Instructions are also analogous. Just as the

legislature approved the OCGA in Georgia, supra, the JCC is responsible for approving the Jury

Instructions and issues them in its own name. (See 140 S.Ct. at p. 1508.) This further

demonstrates that the JCC is ultimately in charge and is therefore the author of the Jury

Instructions, regardless of any participation by non-judges.

Finally, the JCC’s funding source also indicates that it acts as an extension of the judiciary when

it writes the Jury Instructions. The JCC’s funding is appropriated under California’s judicial

branch. Like in Georgia, supra, where the Commission received funding through appropriations

“provided for the legislative branch of state government,” Section 1 of the California Budget Act

of 2020 lays out appropriations “[f]or support of [the] Judicial Branch,” then specifies the

California Supreme Court, the Courts of Appeal, and the JCC. (See 140 S.Ct. at p. 1504; Assem.

Bill No. 89 (2019–2020 Reg. Sess.) § 1.)

The JCC is established by the California Constitution, receives its funding through the Judicial

Branch, has a majority-judges membership, and authored the Jury Instructions through JCC

Public.Resource.Org Rule Change Application

Advisory Committees charged to “perform duties of the JCC authorized or imposed by law.”

(Cal. Rules of Court, rule 10.70; Gov. Code § 68501.) The JCC is therefore an extension of the

judicial branch and an official government entity for purposes of the government edicts doctrine.

2.b.2. The JCC Produced the Jury Instructions in the Discharge of Its

Judicial Duties.

The second step of the government edicts doctrine inquiry is to consider whether the JCC

produced the Jury Instructions in the “discharge” of its judicial “duties.” (Georgia, supra, 140

S.Ct. at p. 1509.) The JCC did produce the Jury Instructions in the discharge of its judicial duties,

because it was acting in its judicial capacity. (Id. at p. 1507.)

As explained above, the Jury Instructions are law and therefore cannot be owned. (See Georgia,

supra, 140 S.Ct. at p. 1507.) But even if the Jury Instructions, or portions of the Jury

Instructions, are seen as legal materials, rather than as law itself, they would still be

uncopyrightable. (Id. at p. 1509.) Just as the non-binding annotations in Georgia were

uncopyrightable because they were produced by the Commission in its legislative capacity

(ibid.), here, the Jury Instructions are produced by the JCC in its judicial capacity, making them

uncopyrightable government edicts.

The Jury Instructions are essential to the California judicial process: they communicate law from

statutes and opinions for juries to apply to facts in making their decisions. Consequently, writing

the Jury Instructions requires the JCC to “make and interpret law” and therefore to act in its

judicial capacity, resulting in a government edict. (Georgia, supra, 140 S.Ct. at p. 1507.) As the

JCC says, it “makes every effort to ensure that [the Jury Instructions] accurately state existing

law.” (Cal. Rules of Court, rule 2.1050, subd. (b).) The members of the JCC’s Instructions

Advisory Committees draw from their judicial expertise when evaluating case law and statutes to

inform their recommended changes to the Jury Instructions. (Cal. Rules of Court, rule 10.58; id.,

rule 10.59.) The JCC’s efforts to ensure the legal accuracy of the Jury Instructions demonstrate

that it is interpreting law and therefore serving in its judicial capacity when it produces and

reviews the Jury Instructions.

Under the government edicts doctrine, the JCC is a judicial entity that authored the Jury

Instructions in its official, judicial capacity. The JCC therefore cannot claim copyright in the Jury

Instructions because the Jury Instructions are governments edicts that belong to the public

domain. Rule 2.1050(c) and the copyright notices on the Jury Instructions are therefore

inaccurate.

2.c. The Jury Instructions Are also Ineligible for Copyright Because They

Lack Sufficient Originality.

In addition to being uncopyrightable as government edicts, the Jury Instructions are

uncopyrightable because they lack sufficient originality to warrant copyright protection.

Instructions, however, comprise uncopyrightable statements of the law and other components

that lack sufficient originality to be copyrightable. Nor is the compilation of these

uncopyrightable materials sufficiently original to merit copyright protection.

Public.Resource.Org Rule Change Application

2.c.1. The Jury Instructions Lack Sufficient Originality to Be

Copyrightable Because They Communicate the Law.

The Jury Instructions are not sufficiently original for copyright protection because they constitute

“a statement or compendium of the law.” (Judicial Council of Cal., Civil Jury Instructions (2020)

p. 1.)

the idea merges with the expression of it. This merger doctrine holds that, “[w]hen the ‘idea’ and

its ‘expression’ are thus inseparable, copying the ‘expression’ will not be barred.” (Herbert

Rosenthal Jewelry Corporation v. Kalpakian (9th Cir. 1971) 446 F.2d 738, 742; see also 1

Melville B. Nimmer and David Nimmer, Nimmer on Copyright (2019) § 2A.05.) Because an

“authoritative copy” of the law requires the “precise wording” given, law can be expressed in

only a few ways, rendering it uncopyrightable under the merger doctrine. (Veeck, supra, 293

F.3d at p. 801.) Here, the Jury Instructions are not original enough to be eligible for copyright

because the expression of the law merges together with “the ‘idea’ that constitutes . . . law.”

(ibid.) The instructional components of the Jury Instructions—that is, the individual instructions

themselves, along with the components used to apply the instructions, including the Directions

for Use, User Guides, Verdict Forms, and Disposition Tables—describe the law as stated in

statutes and judicial opinions. There are only limited ways in which the law encapsulated in the

Jury Instructions can be organized and restated while remaining accurate and authoritative.

Nor does it matter, for purposes of copyrightability, that the JCC undertook to develop “plain

English” Jury Instructions from an earlier, less-user-friendly version. (Judicial Council of Cal.,

Criminal Jury Instructions (2020) p. ix.) It matters only that there are very limited ways in which

the Jury Instructions can be expressed and remain accurate statements of the law. (See, e.g.,

Morrissey v. Procter & Gamble Co. (1967) 379 F.2d 675, 678–679.) And as the Jury Instructions

explain, “plain English” instructions retain “their status as an accurate statement of the law.”

(Judicial Council of Cal., Civil Jury Instructions (2020) p. 1.)

The components used by litigants and courts to employ the Jury Instructions also lack originality.

The Verdict Forms, for example, “generally track the elements of the applicable cause of action .

. . to obtain the jury’s finding on the elements defined in the instructions” (Judicial Council of

Cal., Civil Jury Instructions (2020) p. 4), and the Disposition Tables are used to facilitate

courtroom proceedings. Because they must so closely track the law, components like the Verdict

Forms and Disposition Tables may only be expressed in a limited number of ways and are not

sufficiently original to be eligible for copyright.

2.c.2. Organizational Components of the Jury Instructions also Lack

Sufficient Originality to Be Copyrightable.

In addition to the components of the Jury Instructions that directly express the law, the Jury

Instructions also include organizational components, such as Tables of Contents, Tables of

Cases, and Indices. (See Judicial Council of Cal., Civil Jury Instructions (2020); Judicial Council

of Cal., Criminal Jury Instructions (2020).) These components also lack the originality required

for copyrightability.

Public.Resource.Org Rule Change Application

“[O]riginality requires independent creation and a modicum of creativity.” (Feist Publications,

Inc. v. Rural Telephone Service Co. (1991) 499 U.S. 340, 346.) Should a work fail to exceed this

originality threshold, it does not qualify for copyright protection. (§ 102(a).) The tables and

indices contained within the Jury Instructions alphabetically or numerically organize

uncopyrightable material, such as Instruction titles, Instruction numbers, Verdict Form numbers

and titles of cases. None of these contains copyrightable subject matter. Instead, they contain a

mix of unoriginal facts, short phrases, titles, listings of contents, and the like. (See 17 U.S.C. §

102; Feist, at p. 363; 37 C.F.R. § 202.1(a) [stating that “[w]ords and short phrases such as names,

titles, and slogans . . . [and] mere listing of ingredients or contents” are ineligible for copyright

registration].) Nor do the tables and indices qualify as copyrightable compilations of

uncopyrightable material, because they do not “select[], coordinate[], or arrange[]” material in an

original manner. (17 U.S.C. § 101.) Rather, they merely arrange uncopyrightable elements using

“entirely typical” alphabetical and numerical organization that does not pass the originality

threshold. (Feist, at p. 362.) Similar to Feist, where resident names, towns, and telephone

numbers were organized alphabetically in a phone book, components including the Table of

Cases and Index are organized alphabetically, and the Table of Contents is organized

numerically. (See id. at p. 362.) These organizational components are therefore ineligible for

2.c.3. The Jury Instructions Are Compilations of Uncopyrightable

Materials That also Lack Sufficient Originality to Be Copyrightable.

The Jury Instructions as a whole also are ineligible for copyright protection as compilations.

Taken as whole documents, CACI and CALCRIM each compile uncopyrightable materials: the

text of the jury instructions; corresponding forms and other tools for users; and the

uncopyrightable names, titles, and lists of contents that make up the organizational materials.

These compilations are also not sufficiently original to be separately eligible for copyright

protection. Rather, the organization of the Jury Instructions is dictated by their functionality. The

instructions themselves are numbered and organized numerically within the Jury Instructions—

just as they must be cited in court filings and referred to in court proceedings. (See Cal. Style

Manual (4th ed. 2000) § 3:5.) Similarly, the placement of the various tables, indices and forms

reflects their purpose for users of the Jury Instructions during court proceedings. Such a

functional arrangement is not eligible for copyright.

(See, e.g., Victor Lalli Enterprises, Inc. v. Big Red Apple, Inc. (2d Cir. 1991) 936 F.2d

671, 673 [holding that numerical horse race data chart, arranged functionally, was insufficiently

original to be copyrightable]; Nat. Nonwovens, Inc. v. Consumer Products Enterprises, Inc. (D.

Mass. 2005) 397 F. Supp. 2d 245, 256 [holding that wool-boiling instructions uncopyrightable

where, “[e]ven when the work is viewed as a whole, the instructions remain purely functional.

The decision to divide the directions into steps and to number each step is hardly a creative

choice, but rather a standard method of providing clarity in instructions.”]; Decorative Aides

Corp. v. Staple Sewing Aides Corp. (S.D.N.Y. 1980) 497 F. Supp. 154, 157 [finding that

similarity between drapery instruction sheets “cannot be the basis of an infringement charge”

because similarity “dictated by functional considerations”].)

Public.Resource.Org Rule Change Application

In sum, the Jury Instructions are not eligible for copyright protection; they are in the public

domain. The Jury Instructions state the law, which may not be copyrighted. The Jury Instructions

are also uncopyrightable government edicts, authored by the JCC in its judicial capacity. In

addition, the Jury Instructions are not sufficiently original to be protected by copyright, whether

they are broken down into separate components or viewed as a whole. As a result, the language

of Rule 2.1050(c), and the various copyright notices on the Jury Instructions documents and web

pages, are improper.

3. Proposed Solution

As described above in section 1, Public Resource proposes that the JCC revise Rule 2.1050(c) to

eliminate any suggestion that the JCC claims a copyright in the Jury Instructions, and that it

remove all copyright assertions from the Jury Instructions themselves and from the

corresponding web sites.

3.a. The Proposed Solution Is Necessary Because the Jury Instructions Are in

the Public Domain.

As explained above in section 2, the Jury Instructions are not eligible for copyright; they are in

the public domain. Yet Rule 2.1050(c) implies, and notices on the Jury Instructions and

corresponding web sites claim, that the Jury Instructions are covered by copyright. To solve this

problem, it is necessary to modify Rule 2.1050(c) and remove the copyright notices.

3.b. The Proposed Solution Would Further the JCC’s Goal of Increasing

Public Access to the Law.

The proposed changes also further the JCC’s commendable goal of increasing public access to

the law to the benefit of all Californians. Rule 2.1050(c) and the Notice to Users both affirm the

JCC’s intention to make the Jury Instructions accessible to the public. (Cal. Rules of Court, rule

2.1050, subd. (c) [“The Judicial Council intends that the instructions be freely available for use

and reproduction by parties, attorneys, and the public . . . .”]; Cal. Jury Instructions, Home,

<https://perma.cc/M465-S2QZ> [as of Oct. 8, 2020] [“the Judicial Council seeks to make the

instructions available to the public . . . .”].) This reflects the JCC’s priority of lowering barriers to

the law, also identified in, for example, the JCC’s “recommended best practices” for increasing

access to California law and judicial institutions. These recommended best practices include:

1. Identify and work to eliminate all barriers to access.

2. Broaden and facilitate access to, understanding of, and trust and

confidence in the judicial branch and court-connected programs and

services for all persons and entities served by the judicial branch.

3. Work to prevent bias, and the appearance of bias, in all parts of the

judicial branch.

4. Work to achieve procedural fairness in all types of cases.

. . .

6. Implement, enhance, and expand multilingual and culturally responsive

programs, including educational programming, self-help centers, and

interpreter services.

. . .

Public.Resource.Org Rule Change Application

10. Ensure that judicial branch facilities are accessible to all court users and

accommodate the needs of persons with disabilities.

11. Increase public access to court information and services.

(Judicial Council of Cal., The Strategic Plan for California’s Judicial Branch, pp. 5–6

<https://perma.cc/J9MH-MKS9> [as of Oct. 8, 2020] (hereafter Strategic Plan).) The JCC

developed these best practices because “the [judicial] branch should reflect the diversity of the

state and continue efforts to enhance public trust and confidence.” (Id. at p. 5.)

Public Resource agrees that unencumbered access to the law is essential; it also agrees that this is

particularly true for jury instructions. Jury instructions “are important because together they state

the law that [jurors] will use” to decide cases that affect the lives of their fellow Californians.

(CACI No. 5000.) Public Resource applauds the effort the JCC undertook to develop instructions

that are “both legally accurate and understandable to the average juror.” (Judicial Council of

Cal., Civil Jury Instructions (2020) p. xxiii.)

The proposed rule changes would further the JCC’s goals to, for example, “eliminate all barriers

to access” and “achieve procedural fairness.” (Strategic Plan, supra, pp. 5–6.) Clarifying that the

Jury Instructions are in the public domain would encourage the public to reproduce, translate,

and reformat the Jury Instructions to best serve California’s diverse populace.

Public Resource’s proposed solution would facilitate the creation of more usable, free versions of

the Jury Instructions. The current Jury Instruction PDFs are thousands of pages long, making

them difficult to read, index, and use. A pro se litigant preparing for trial, for example, will often

need to refer to multiple different instructions quickly and repeatedly, something that cannot be

done easily with the available PDFs. Parties that rely on publicly available jury instructions,

including some criminal defendants, pro se litigants, activists, journalists, and others, would

benefit from the removal of all copyright claims, so that private parties—non-profit or

commercial—could innovate and create versions that are easier to use and free.

Removing all copyright claims and notices would also support translating the Jury Instructions

into multiple languages and formats. As stated in the Strategic Plan guiding principles, “[T]here

is an increased need for services for non-English speaking users and for the elderly, as well as for

cultural sensitivity and culturally appropriate programs and services that yield more effective

outcomes.” (Strategic Plan, supra, at p. 3.) As Chief Justice Tani Cantil-Sakauye has pointed out,

more than 200 languages and dialects are spoken in California, and “roughly 20 percent of us

(nearly 7 million) have English language limitations.” (Judicial Council of Cal., Strategic Plan

for Language Access in the California Courts (2015) p. 5.) Adopting this Proposal would make it

easier for third parties to translate the Jury Instructions into non-English languages. This would

expand opportunities for members of the public to have access to the Jury Instruction materials

in languages or dialects relevant to their communities.

The proposed rule changes would further the JCC’s strategic goals by encouraging the public to

reproduce, translate, and reformat the Jury Instructions in ways that better serve California’s

diverse populace.

Public.Resource.Org Rule Change Application

3.c. The Proposed Solution Is the Only Adequate Solution.

The proposed solution—taking steps to clarify that the Jury Instructions are in the public

domain—is the only way to adequately resolve the legal and policy problems identified in this

Proposal.

First, apparent claims of copyright in the Jury Instructions are inaccurate and improper under

United States copyright law, so no partial solution will suffice. Public domain materials are free

for anyone to use, unfettered by copyright limitations. Today, however, the Jury Instructions are

not yet fully available to the public. Although they are available on the JCC’s web site, the

limitations contemplated by Rule 2.1050(c) and the associated copyright notices give the

impression that the JCC and Matthew Bender control their use.

Second, the current inaccurate notices likely deter third parties from disseminating the Jury

Instructions and from creating better, more accessible versions. Even though the current

modify or reproduce the Jury Instructions. When a copyright is infringed, the copyright holder

may be entitled to steep statutory damages and injunctive relief; in some cases, even criminal

penalties apply. (See §§ 504–506.) This may chill members of the public, especially those who

lack resources or access to counsel, from using and reproducing the Jury Instructions in ways

that would be valuable to the public.

Third, the purported public license contained in the Notice to Users is an inadequate solution.

Public Resource commends the JCC for communicating that the Jury Instructions should be

relatively free to use through the Notice to Users, which purports to limit only commercial uses.

The Notice to Users is not, however, sufficient for true public access.

As an initial matter, the Notice to Users and other copyright notices are inconsistent, confusing,

and difficult to follow. The Notice to Users, for example, states that the JCC intends to make the

Jury Instructions available to the public, and purports to grant “members of the public a

nonexclusive license to reproduce or modify the jury instructions . . . .” (Cal. Jury Instructions,

Home, <https://perma.cc/M465-S2QZ> [as of Oct. 8, 2020].) But neither the statement

supporting public availability, nor the purported license is present on the Jury Instructions

themselves. Instead, the CACI and CALCRIM PDFs contain the copyright notices described

above. Members of the public might see the blanket copyright claims on the PDFs and

reasonably assume that they cannot use the Jury Instructions without risking infringement. Or

members of the public might not see some of the notices; given the many notices scattered

throughout the PDFs and web pages, it would be difficult for someone who wished to use the

Jury Instructions to find all the different copyright notices that appear to apply. And even if

potential users were to locate all the different copyright notices, they would find it difficult to

Public.Resource.Org Rule Change Application

understand what the notices claim to prohibit. Some of the copyright notices on the web site and

on the CACI materials, for example, are outdated;

others conflict with one another.

The Notice to Users also purports to prohibit unlicensed commercial uses of the Jury

Instructions. This is incorrect: public domain material may be used freely by all, including

commercial users. States do not and should not have the power to control the distribution and use

of the law, upon which everyone, including private entities, depends. Further, the provided

definition of commercial publishers is broad, unclear, and could capture even non-profits that

seek to recoup the cost of creating accessible versions of the Jury Instructions by offering them

for sale. (Cal. Jury Instructions, Home, <https://perma.cc/M465-S2QZ> [as of Oct. 8, 2020]

[“For purposes of this license, ‘ commercial publishers’ means entities that publish works for

sale, whether for profit or otherwise.”].) As a result, it is unclear what actions individuals or

organizations may take with regard to using or reproducing the Jury Instructions. A non-profit,

for instance, that translated the Jury Instructions for the community it served and then sold the

work only to recoup costs would seem to violate the non-exclusive license described in the

Notice to Users.

In any case, commercial publishers should also be able to access the law freely. Private entities

often create materials that help explain the law and enrich the legal universe in ways that assist

legal practitioners and those they serve. The public domain supports free competition among

commercial publishers; clarifying that the Jury Instructions are free to use would generate

opportunities for publishers to create more accessible and usable versions of the Jury

Instructions, including versions tailored for markets that are ignored currently. The JCC itself

could, in theory, create accessible versions of the Jury Instructions and translate them into

California’s 200-plus languages. But it would be much more efficient to eliminate confusion and

encourage third parties to innovate by clarifying that the Jury Instructions are in the public

domain. Limiting commercial publishers’ ability to use and modify the Jury Instructions only

serves to deter private innovation and reduce competition in legal research services.

Public Resource’s proposed solution would fix these problems. Clarifying that the Jury

Instructions are in the public domain would address all of these issues—liability fears, confusion,

and lack of competition—at once. And removing copyright claims from the Judicial Branch web

site and from the Jury Instructions themselves would address the liability fears and confusion

(See, e.g., Civil Jury Instructions, Home, <https://perma.cc/GK6H-756N> [as of Oct. 8,

(Compare Cal. Jury Instructions, Home, <https://perma.cc/M465-S2QZ> [as of Oct. 8,

2020] [Notice to Users purportedly granting the public “a nonexclusive license to reproduce or

modify the jury instructions . . . .”] with Judicial Council of Cal., Civil Jury Instructions (2020)

p. 1 [footer attribution claiming “Copyright Judicial Council”]; compare also Judicial Council of

Cal., Civil Jury Instructions (2020) p. ii [notifying “No copyright is claimed by the Judicial

Council of California to the Table of Contents, Life Expectancy Tables, Table of Statutes, Table

of Cases, Index, or the Tables of Related Instructions,” italics added] with Judicial Council of

Cal., Civil Jury Instructions (2020) p. 970 [notifying “Copyright Judicial Council of California”

at bottom of page entitled “Life Expectancy Table — Male”].)

Public.Resource.Org Rule Change Application

that currently could arise for users who wish to reproduce the instructions. Consequently, the

proposed solution would encourage competition, stimulate innovation, and increase access to

California law.

4. Any Likely Implementation Problems

Public Resource does not foresee likely implementation problems. Any potential implementation

challenges posed by the Proposal are minimal and reasonable. To make the proposed changes,

the JCC would need to modify the digital and print versions of the Jury Instructions to remove

any copyright claims or notices. It would also need to remove any such claims or notices from

the Jury Instructions web site. Public Resource respectfully submits that this burden is

reasonable, given the significant societal costs of the JCC claiming copyright in the Jury

Instructions, and given that such claims are not permitted under copyright law.

Additionally, the JCC would maintain the ability to certify an official version of the Jury

Instructions. There is therefore no need for concern that implementing this Proposal would lead

to the distribution of inaccurate versions of the Jury Instructions or versions falsely attributed to

the JCC.

5. Any Need for Urgent Consideration

The COVID-19 pandemic demonstrates the urgent need for the JCC to address Public

Resource’s request. During the pandemic, access to legal materials has become even more

difficult than usual. In response to the pandemic, nearly all courts in California have had to limit

public access, restrict hearings, and limit civil and criminal jury trials. Law libraries across the

state have been closed to the public due to state and local health orders, including the Los

Angeles County Law Library, the San Francisco City and County Law Library, and the Santa

Clara County Law Library.

The digital versions of the Jury Instructions on the JCC web site are

now the only easily accessible versions for some attorneys, pro se litigants, journalists, and

others.

Public Resource therefore respectfully submits that it is urgent to make the Jury

Instructions freely accessible and to clear away barriers for third parties that wish to create and

distribute new versions.

(Los Angeles Law Library, Locations and Hours <https://perma.cc/6X82-WARC> [as of

Oct. 8, 2020]; San Francisco Law Library, Home <https://perma.cc/3Z6J-5CSF> [as of Oct. 8,

2020]; Santa Clara County Law Library, Home <https://perma.cc/VJC8-VPCM> [as of Oct. 8,

2020].)

LexisNexis Matthew Bender’s official print editions of CACI and CALCRIM cost

$297.00 and $293.00, respectively. This cost is a barrier for many individuals and groups.

(LexisNexis Store, Judicial Council of California Civil Jury Instructions (CACI) Purchase Page

<https://perma.cc/5CBM-FWGY> [as of Oct. 8, 2020]; LexisNexis Store, Judicial Council of

California Criminal Jury Instructions (CALCRIM) Purchase Page <https://perma.cc/95WP-

EHBC> [as of Oct. 8, 2020].)

Public.Resource.Org Rule Change Application

6. Known Proponents and Opponents

Public Resource’s proposal enjoys strong support. Proponents are detailed in the following

attachments:

Attachment A is a letter of support from 11 public interest organizations that seek to

improve public access to the law: the Electronic Frontier Foundation, Fix the Court, Public

Citizen, the First Amendment Coalition, Public Knowledge, Free Law Project, Creative

Commons, the American Civil Liberties Union Foundation of Northern California, the American

Civil Liberties Union Foundation of San Diego & Imperial Counties, the American Civil

Liberties Union Foundation of Southern California, and the Wikimedia Foundation.

Attachment B is a letter of support from the Office of the State Public Defender, the

Habeas Corpus Resource Center, and the California Appellate Project.

Attachment C is a statement of support signed by 342 law professors, law librarians, and

legal practitioners, the East Bay Community Law Center, and the San Francisco Public

Defender’s Office.

Attachment D is a statement of support signed by 120 law students, as well as 12

California law student organizations: the Berkeley Law Wage Justice Clinic, the Berkeley

Journal of Gender, Law & Justice; the Berkeley Technology Law Journal; the Hastings Law

Journal; the Intellectual Property and Technology Law Journal at the University of San Francisco

School of Law; the King Hall Intellectual Property Law Association at the University of

California, Davis; the Law and Political Economy Society at the University of California,

Berkeley School of Law; Law Students of African Descent at the University of California,

Berkeley School of Law; Middle Eastern & North African Law Students Association at the

University of California, Berkeley School of Law; Post-Conviction Advocacy Project at the

University of California, Berkeley School of Law; Pilipinx American Law Society at the

University of California, Berkeley School of Law; the Public Interest Law & Technology Society

at the University of California, Berkeley School of Law.

Attachment E is a letter of support from Edward H. Schulman, former Chief Assistant

State Public Defender and member of the CALJIC Committee in Los Angeles from 1985–89.

Public Resource is not aware of any opponents of this Proposal.

7. Any Known Fiscal Impact

Public Resource is not aware of any cognizable fiscal impact that would result from adopting the

proposed rule changes, which are necessary to comply with copyright law.

8. Any Known Previous Action by the Council

Public Resource is not aware of any previous action by the JCC or Advisory Committees

regarding this Proposal.

Conclusion

California’s Jury Instructions are not copyrightable; they belong to the public domain. Yet Rule

2.1050(c) implies otherwise, and notices throughout the Jury Instructions and on the

corresponding web pages assert copyright claims. This risks public confusion, and potentially

chills beneficial uses of the Jury Instructions. Public Resource respectfully requests that the JCC

Public.Resource.Org Rule Change Application

address this problem by modifying Rule 2.1050(c) to reflect the uncopyrightable nature of the

Jury Instructions and by taking the corresponding step of removing copyright notices from the

Jury Instruction materials and related web sites. Granting Public Resource’s request will ensure

compliance with federal copyright law and protect the public’s fundamental right to access the

law.

Thank you for considering this Proposal. Please do not hesitate to contact Jennifer Urban at

jurban@clinical.law.berkeley.edu or (510) 642-7338 with any questions regarding the proposed

rule changes.

Sincerely,

/s/

Jennifer M. Urban

Clinical Professor of Law, Samuelson Law, Technology & Public Policy Clinic

University of California, Berkeley, School of Law

Attorney for Public.Resource.Org

Pronouns: she, her, hers

/s/

Jennifer A. Hewitt

Law Student, Samuelson Law, Technology & Public Policy Clinic

Pronouns: she, her, hers

/s/

Blaine Valencia

Law Student, Samuelson Law, Technology & Public Policy Clinic

Pronouns: he, him, his

ATTACHMENT A: LETTER OF SUPPORT FROM

11 PUBLIC INTEREST ORGANIZATIONS

November 20, 2020

Judicial Council of California

Attention: Chief Counsel (Rule/Form Proposal)

455 Golden Gate Avenue

San Francisco, California 94102-3688

E-mail: legal-services@jud.ca.gov

Subject: Proposal to the Judicial Council for Changes to California Rule of Court 2.1050

Dear Chief Counsel:

We are public interest organizations that seek, in various capacities, to improve public access to

information. We write in support of a proposed rule change concerning the status of the California

Civil Jury Instructions and the California Criminal Jury Instructions (collectively, the “Jury

Instructions”). We would like to first congratulate the Judicial Council of California for the

creation and promulgation of award-winning plain language civil and criminal jury instructions

that convey the law using language that is understandable to jurors. We also commend the Judicial

Council of California for taking steps to make the Jury Instructions “freely available” on the

Internet.

However, we are concerned that the Council is continuing to assert copyright in those instructions.

Under the government edicts doctrine, law and legal materials belong to the people and are not

eligible for copyright protection. See Georgia v. Public.Resource.Org, Inc. (2020) 140 S.Ct. 1498,

1506–1507. In particular, the law and related legal materials created by judges, lawmakers, and

other government officials working in their official capacities, which clearly includes the work of

the Judicial Council of California, must not be subject to copyright restrictions.

We urge the Judicial Council of California to remove all public assertions of copyright, respecting

both the limits of copyright law and the mission of the California Judicial Branch: to “improve the

administration of justice” (Cal. Const. art. I, § 6, subd. (d)).

We thank you in advance for your careful consideration of this matter.

Respectfully,

Electronic Frontier Foundation

Fix the Court

Public Citizen

First Amendment Coalition

Public Knowledge

Free Law Project

Creative Commons

American Civil Liberties Union Found. of Northern California

American Civil Liberties Union Found. of San Diego &

Imperial Counties

American Civil Liberties Union Found. of Southern California

Wikimedia Foundation

ATTACHMENT B: LETTER OF SUPPORT FROM THE OFFICE OF THE STATE

PUBLIC DEFENDER, THE HABEAS CORPUS RESOURCE CENTER, AND THE

CALIFORNIA APPELLATE PROJECT

State of California Gavin Newsom, Governor

Office of the State Public Defender

1111 Broadway, 10

Floor

Oakland, California 94607-4139

Telephone: (510) 267-3300

Fax: (510) 452-8712

November 23, 2020

Judicial Council of California

Attention: Chief Counsel (Rule/Form Proposal)

455 Golden Gate Avenue

San Francisco, California 94102-3688

E-mail: [email protected]

Subject: Proposal to the Judicial Council for Changes to California Rule of Court

2.1050

Dear Chief Counsel:

We write in support of the request by Public.Resource.Org (Public Resource)

to the Judicial Council of California (JCC) to revise California Rule of Court, Rule

2.1050(c) (Rule 2.1050(c)) to clarify that California Jury instructions, including the

California Criminal Jury Instructions (CALCRIM) are in the public domain and

that the JCC remove all copyright claims and notices from CALCRIM, and from

related web pages on the Judicial Branch web site.

The Office of the State Public Defender (OSPD) has represented indigent

defendants in their direct appeals, primarily from capital convictions, since 1976.

OSPD is committed to protecting the constitutional and statutory rights of those

who have been convicted of crimes and has been charged by the Legislature to

“engage in efforts for the purpose of improving indigent defense.”

The California Appellate Project in San Francisco (CAP-SF) is a non-profit

corporation established by the State Bar of California in 1983 to implement the

constitutional right to counsel for indigent persons facing execution. CAP-SF assists

private counsel appointed by the California Supreme Court to represent indigent

defendants and assists unrepresented death row inmates, including by providing

advocacy as needed before counsel is appointed. CAP-SF also consults, at the

request of the judiciary, on policy matters regarding indigent defense

representation in capital cases.

Govt. Code, § 15420, subd. (b).

Page 2 of 3

The Habeas Corpus Resource Center (HCRC) was established in 1998 to

accept appointments in state and federal habeas corpus proceedings and to provide

training and support for private attorneys who are appointed to these cases. The

HCRC was created as a part of the judicial branch of the State of California.

As Public Resource discusses in its request, the requested amendment to

Rule 2.1050(c) and removal of copyright notices and warning from the Jury

Instructions will increase access to those instructions. Currently indigent criminal

defendants seeking access to jury instructions for their own defense must either

purchase them from Matthew Bender, which is almost certainly beyond the means

of an indigent defendant,

or obtain access to the instructions on the court’s website,

something that is impossible for an incarcerated defendant, and often very difficult

for even non-incarcerated indigent defendants. For example, in 2017 45 percent of

low income California’s lacked home broadband access

Whether incarcerated or not, access to critical legal materials is a

fundamental need for criminal defendants. While there is a constitutional right to

counsel at trial and on direct appeal, there is no such right in non-capital habeas

corpus proceedings unless a court issues an order to show cause.

Moreover, while

there is a right to counsel at trial, there is also a right to self-representation.

Whether unrepresented by choice or due to the lack of provision for counsel in

habeas corpus proceedings, access to jury instructions is a critical tool for any self-

represented defendant as errors in such instructions are a frequent issue in a direct

appeal or a habeas corpus petition.

Defendants who are monolingual non-English speakers are at a particular

disadvantage in this regard. As Public Resource discusses in its request, one of the

potential benefits of the total removal of copyright claims from California Jury

Instructions is the increased likelihood that those instructions will be translated

into other languages.

Govt. Code, § 68660, et. seq.

A copy of CALCRIM costs $293. (https://store.lexisnexis.com/categories/shop-by-

jurisdiction/california-157/judicial-council-of-california-criminal-jury-instructions-calcrim-

skuusSku57779)

Public Policy Institute of California, “California’s Digital Divide,”

https://www.ppic.org/publication/californias-digital-divide/

See California Rules of Court, Rule 4.551(c)(2) (providing for appointment of counsel if an

order to show cause is issued); Penal Code, § 68662 (providing for appointment of counsel in capital

cases). See also Appointed Counsel., 6 Witkin, Cal. Crim. Law 4th, Crim Writs, § 83 (2020)

(“California . . . has no constitutional provision conferring a right to counsel for those seeking

collateral relief via state habeas proceedings”).

Faretta v. California (1975) 422 U.S. 806.

Page 3 of 3

Improving and reducing the cost of access to jury instructions will also

benefit the many sole or small practitioners who represent indigent defendants as

court appointed counsel at trial and are virtually the sole source of representation

for indigent defendants in non-capital direct appeals.

In short, removing all claims of copyright from CALCRIM will improve the

ability of indigent defendants and their counsel to access legal materials critical to

the defense of their cases. This will also serve the goal of the Judicial Council,

stated in Rule 2.1050(c), to make jury instructions available to the public. It is also

consistent with the goals set forth in the Judicial Council’s strategic plan which

include eliminating barriers and improving access, achieving procedural fairness,

enhancing multilingual programs, and increasing public access to court information

and services.

For all of these reasons we strongly support the request by Public Resource to

amend Rule 2.1050(c) and to remove all references to copyright from California Jury

Instructions.

Sincerely,

/s/

Mary McComb

State Public Defender

/s/

Joseph Schlesinger

Executive Director

California Appellate Project

/s/

Michael Hersek

Executive Director

Habeas Corpus Resource Center

/s/

Andrew Shear

Supervising Deputy State Public Defender

Judicial Council of Cal., The Strategic Plan for California’s Judicial Branch, pp. 5–6

https://perma.cc/J9MH-MKS9.

ATTACHMENT C: STATEMENT OF SUPPORT FROM LAW PROFESSORS, LAW

LIBRARIANS, AND LEGAL PRACTITIONERS

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

ATTACHMENT C: STATEMENT OF SUPPORT FROM LAW PROFESSORS, LAW

LIBRARIANS, AND LEGAL PRACTITIONERS

The undersigned support Public Resource’s proposal to revise California Rule of Court 2.1050,

subdivision (c), and remove all copyright claims and notices from the California Civil Jury

Instructions, California Criminal Jury Instructions, and each volume’s related web pages on the

Judicial Branch web site. The Judicial Council should take these steps to clarify that California’s

Jury Instructions are in the public domain.

All affiliations are for identification purposes only and do not imply institutional endorsement.

Law Professors and Law Librarians

Jonathan Abel, Associate Professor, University of California, Hastings College of the Law

Kendra Albert, Clinical Instructor (CA Bar #314839), Harvard Law School

Robin Allan, Professor of Legal Writing, University of California, Berkeley School of Law

Ty Alper, Clinical Professor of Law, University of California, Berkeley School of Law

W. David Ball, Professor, Santa Clara University School of Law

Jordan Barry, Professor of Law, University of San Diego School of Law

Cheryl Berg, Professor of Legal Writing, University of California, Berkeley School of Law

Mario Biagioli, Professor, University of California, Los Angeles

Mark G. Bilby, Scholarly Communication Librarian, California State University, Fullerton

Dr. Annemarie Birdy, Copyright Counsel, Google Inc.; Nonresidential Fellow, Stanford Law

School Center for Internet and Society

Joanne Bloom, Photographic Resources Librarian, Harvard University

Dan L. Burk, Chancellor's Professor of Law, University of California, Irvine

Brandon Butler, Director of Information Policy, University of Virginia

Chris Byrne, Head of Research & Instructional Services Wolf Law Library, William & Mary

School of Law

Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of

California, Berkeley School of Law

Kevin Cole, Professor of Law, University of San Diego School of Law

Michelle Cole, Professor of Legal Writing, University of California, Berkeley School of Law

Cotton Coslett, Online Learning Librarian, California State University, Fullerton

Kyle K. Courtney, Copyright Advisor, Harvard University

Catherine Crump, Clinical Professor of Law, University of California, Berkeley School of Law

Gabrielle Daley, Clinical Teaching Fellow, University of California, Berkeley School of Law

Ben Depoorter , Professor of Law, University of California, Hastings College of the Law

Tim Duane, Professor in Residence, University of San Diego School of Law

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

Eli Edwards, Emerging Technologies Research Librarian, Santa Clara University School of Law

Ana Enriquez, Scholarly Communications Outreach Librarian, Pennsylvania State University

Samuel F. Ernst, Professor of Law, Golden Gate University School of Law

Catherine L. Fisk, Barbara Nachtrieb Armstrong Professor of Law, University of California,

Berkeley School of Law

Katie Fortney, Copyright Policy & Education Officer, California Digital Library, University of

California

Joel Franklin, Professor of Law, Monterey College of Law

William Gallagher, Professor of Law, Golden Gate University School of Law

Barbara Garavaglia, Librarian Emerita, University of Michigan Law School

Kevin Gerson, Law Library Director, University of California, Los Angeles School of Law

Barbara Glennan, Associate Director for Education Technology and Strategic Initiatives, Adjunct

Professor of Law, California Western School of Law

Eric Goldman, Professor, Santa Clara University School of Law

Phillip Gragg, Associate Dean for Library and Information Service, and Associate Professor of

Law, California Western School of Law

Allen M. Gruber, Attorney and Adjunct Professor, University of San Diego School of Law

Cindy Guyer, Senior Law Librarian and Adjunct Assistant Professor of Law, University of

Southern California Gould School of Law

David Hansen, Associate University Librarian and Lead Copyright & Information Policy

Officer, Duke University

Kathryn Hashimoto, Copyright Research Fellow, Berkeley Center for Law & Technology,

University of California, Berkeley School of Law

April Hathcock, Director of Scholarly Communications & Info Policy, New York University

Steven A. Hirsch, Adjunct Lecturer, Stanford Law School

Marci Hoffman, Associate Director, Law Library, University of California, Berkeley School of

Law

Micah Hoggatt, Reference Librarian, Harvard University

Katherine Holvoet, Electronic Resources Librarian and Government Documents Liaison, San

Diego State University

Patricia Hurley, Professor of Legal Writing, University of California, Berkeley School of Law

Chrissy Hursh, Agriculture and Science Librarian, California State University, Chico

Kimberly Jackson, STEM Librarian and California Copyright First Responder, The Claremont

Colleges Library

Sonia Katyal, Haas Distinguished Professor of Law, University of California, Berkeley School

of Law

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

Benjamin Keele, Research and Instructional Services Librarian, Indiana University Robert H.

McKinney School of Law

Daphne Keller, Director of Program on Platform Regulation, Stanford Cyber Policy Center;

Lecturer in Law, Stanford Law School

David Kemp, Professor of Legal Writing, University of California, Berkeley School of Law

Kerry Kumabe , Professor of Legal Writing, University of California, Berkeley School of Law

Peter Lee, Professor, University of California, Davis School of Law

Mark A. Lemley, William H. Neukom Professor of Law, Stanford Law School

Michael Levy, Associate Director, Law Library, University of California, Berkeley School of

Law

Carla Lillvik, Special Collections & Research Librarian, Harvard Graduate School of Education

Brian J. Love, Associate Professor, Santa Clara University School of Law

Katherine Luce, Instruction and Web Services Librarian, CSU Maritime AcademyChris

Hoofnagle, Professor of Law in Residence, University of California, Berkeley School of

Law

Phil Malone, Professor of Law, Stanford Law School

Scott Maurer, Associate Clinical Professor of Law, Santa Clara University School of Law

David McGowan, Professor, University of San Diego School of Law

Miranda McGowan, Professor, University of San Diego School of Law

Peter Menell, Koret Professor of Law, University of California, Berkeley School of Law

Rob Merges, Wilson Sonsini Goodrich & Rosati Professor of Law, Co-Director, Berkeley Center

for Law & Technology, University of California, Berkeley School of Law

Mike Mireles, Professor of Law, University of the Pacific, McGeorge School of Law

Deirdre K. Mulligan, Professor of Law, School of Information, University of California,

Berkeley School of Law

Neil Netanel, Pete Kameron Professor of Law, University of California, Los Angeles School of

Law

Patrick Newell, Dean, Meriam Library, California State University Chico

Tyler Ochoa, Professor, Santa Clara University School of Law

Jef Pearlman, Clinical Assistant Professor of Law & Director, Intellectual Property and

Technology Law Clinic, University of Southern California Gould School of Law

Claudia Polsky, Assistant Clinical Professor of Law, University of California, Berkeley School

of Law

Rita L. Premo, Scholarly Communications Librarian, Sonoma State University

Laura Quilter, Copyright and Information Policy Librarian, University of Massachusetts

Amherst

Lisa Ramsey, Professor of Law, University of San Diego School of Law

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

Annie Reding, Professor of Legal Writing, University of California, Berkeley School of Law

Andrea Roth, Professor of Law, University of California, Berkeley School of Law

Dean C. Rowan, Director, Reference & Research Services, Law Library, University of

California, Berkeley School of Law

Lisa Rydin, Research Librarian, Harvard Law School

Lindsay Saffouri, Professor of Legal Writing, University of California, Berkeley School of Law

Pamela Samuelson, Richard M. Sherman Professor of Law, University of California, Berkeley

School of Law

Sachi Schuricht, Lecturer, University of California, Berkeley School of Law

Elisabeth Semel, Clinical Professor of Law, University of California, Berkeley School of Law

Nicholas Serafin, Assistant Professor of Law, Santa Clara University School of Law

Robert Sheridan, Retired Professor, San Francisco Law School

Ted Sichelman, Professor, University of San Diego School of Law

Lucinda Sikes, Professor of Legal Writing, University of California, Berkeley School of Law

Brenda Simon, Professor, California Western School of Law

Christina Sirois, Associate Director, HKS Library & Knowledge Services, Harvard Kennedy

School

Kevin L. Smith, Dean of Libraries and Courtesy Professor of Law, University of Kansas

Cristina Springfield, Librarian, California State University, Dominguez Hills

Erik Stallman, Assistant Clinical Professor of Law, University of California, Berkeley School of

Law; Samuelson Law, Technology & Public Policy Clinic

Linda Starr, Clinical Professor of Law, Santa Clara University Law School

Leslie Street, Director of the Law Library, Clinical Professor of Legal Research, William &

Mary School of Law

Peter Suber, Director, Office for Scholarly Communication, Harvard University

Catherine Sweetser, Director, Human Rights Litigation Clinic, University of California, Los

Angeles School of Law

Vicki Szymczak, Associate Professor of Law, Library Director, University of Hawaii at Manoa

Emily Coolidge Toker, Librarian, Harvard University

Robert Truman, Associate Dean and Director, Paul L. Boley Law Library, Lewis & Clark Law

School

Molly Van Houweling, Harold C. Hohbach Distinguished Professor of Patent Law and

Intellectual Property, Associate Dean for J.D. Curriculum & Teaching, University of

California, Berkeley School of Law

Kathleen Vanden Heuvel, Director, Law Library and Adjunct Professor, University of

California, Berkeley School of Law

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

Pedro Viramontes, Staff Attorney and Clinical Supervisor, East Bay Community Law Center

Alicia Virani, The Gilbert Foundation Associate Director, Criminal Justice Program, University

of California, Los Angeles School of Law

Timothy Vollmer, Scholarly Communication and Copyright Librarian, Law Library, University

of California, Berkeley School of Law

Gary Wayne, Attorney and former Clinical Professor of Law, The Maley Firm

Charles D. Weisselberg, Yosef Osheawich Professor of Law , University of California, Berkeley

School of Law

Rebecca Wexler, Assistant Professor of Law, University of California, Berkeley School of Law

Beth Williams, Senior Director, Robert Crown Law Library & Sr. Lecturer in Law, Stanford

Law School

Lana Wood, Scholarly Communications Librarian, California State University, East Bay

Amy J. Wright, Director of the Law Library & Assistant Professor of Law, University of San

Francisco School of Law

Nancy J. Young, Reference Librarian, California State University Northridge

Richard Zitrin, Lecturer Emeritus, University of California, Hastings College of the Law

Ning Zou, Associate Director for Student Academic Services, Gutmann Library, Harvard

Graduate School of Education

Legal Practitioners

East Bay Community Law Center

San Francisco Public Defender’s Office

Omar Abukurah, Attorney, Los Angeles Criminal Defense, APC

Alison Minet Adams, Certified Appellate Specialist Attorney at Law

Melissa Adamson, Attorney, National Center for Youth Law

Romina Aghai, Deputy Public Defender, Los Angeles County Public Defender

Christina Allbright, Attorney, Christina Allbright, Attorney at Law

Amanda Almeda, Lawyer, Hishaw & Culbertson LLP

Gregory M. Alonzo, Attorney at Law, Law Office of Gregory M. Alonzo

Mary Catherine Amerine, Associate Attorney, Dinsmore & Shohl, LLP

Galia Amram, Attorney, Durie Tangri LLP

Eric D. Anderson, Attorney, National Association of Criminal Defense Lawyers

Kathryn K. Andrews, Attorney at Law, Member, California State Bar

Stanley Apps, Associate Attorney, Law Offices of Robert S. Gitmeid

John N Aquilina, Attorney, Law Office of John N. Aquilina

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

Fay Arfa, Attorney

Lila Bailey, Policy Counsel, Internet Archive

Eric Ball, Attorney, Fenwick & West LLP

Jean Ballantine, Attorney at Law, California Appellate Defense Counsel

Ariane Barr, Court Alternative Specialist, San Francisco Public Defender’s Office

Colleen K. Bazdarich, Deputy Public Defender, San Bernardino County Public Defender’s

Office

Matthew Bedrick, Attorney and Equal Justice Works Fellow, National Center for Youth Law

Stephen Bedrick, Appellate Attorney, Law Office of Stephen Bedrick, Oakland

Michael Benassini, Deputy Public Defender, Tulare County Public Defender

Alison Bermant, Attorney at Law

Sarah Bluestone, Deputy Public Defender, Contra Costa Public Defender’s Office

Nancy Brandt, Attorney at Law, Law Office of Nancy S. Brandt

Erin Brooks, Supervising Attorney, Tulare County Public Defender

Paul R Burglin, Attorney, Burglin Law Offices, P.C.

Robert Burns, Attorney and Counselor at Law, OB Law

Sarah E Burns, Attorney, Davis Wright Tremaine LLP

Frank Caratzola, Attorney

Richard Chacon, Attorney

Steven A. Chase, Attorney, Private Attorney

Seth Chazin, Attorney at Law

Gerald M. Cobb, Attorney

Justyn Coddington, Attorney

Daniel E. Cook, Attorney, Law Office of Daniel E. Cook

Brian Cox, Deputy Public Defender, San Francisco Public Defender’s Office

Elena D’Agustino, Public Defender, Solano County Public Defender

Emily Dahm, Partner, Bonjour, Thorman, Burns & Dahm

Jose Carlos de Wit, Senior Attorney, Rostova Westerman Law Group, P.A.

Kory DeClark, Attorney, Orrick, Herrington & Sutcliffe

David K. Demergian, Attorney, Sole Practitioner

James X. Dempsey, Executive Director, Berkeley Center for Law & Technology, UC Berkeley

Steven S. Derelian, Attorney, Law Offices of S. Derelian and Associates

Humberto Diaz Esq., Attorney

Jeff Dingwall, Attorney, Eight & Sand Law

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

William E. Drake, Deputy Public Defender, Law Offices of the San Bernardino County Public

Defender

Tracy Dressner, Attorney

Patrick Dudley, Attorney, Law Office of Patrick Dudley

Stephen K. Dunkle, Attorney, Sanger Swysen & Dunkle

Sylvia Duran, Attorney at Law, Law Office of Sylvia Duran

Jack Earley, Past President, California Attorneys for Criminal Justice

Samuel Edwards, Senior Product Counsel, Salesforce, Inc.

Sarah Ellenberg, Co-Executive Director, LAW Project of Los Angeles

Elizabeth H. Eng, Attorney at Law, Sole Practitioner

Jennifer English, Associate, Quinn Emanuel Urquhart & Sullivan LLP

David J. Estrada, Attorney at Law, Sole Practitioner

Richard L. Everett, Attorney, Indigent Criminal Defense Appointments, Conference of

California Bar Associations, Capital Case Panel

Steven Fabian, Deputy Public Defender, Law Office of the Public Defender, County of Sonoma

Meredith Fahn, Attorney at Law, Solo Practitioner; Appointed Counsel in California Criminal

Indigent Appeals

Hanni Fakhoury, Assistant Federal Public Defender, Federal Public Defender Northern District

of California

Douglas Feinberg, Senior Defense Attorney, Fresno County Public Defender Office

Karl Fenske, Deputy Public Defender IV, Los Angeles County Public Defender

Meghan Fenzel, Associate, Fenwick & West LLP

Kris Finley, Deputy Alternate Public Defender, LA County Alternate Public Defender

David Foos, Attorney, Foos Gavin Law Firm

Anne E. Fragasso, Lawyer and Past President, California Attorneys for Criminal Justice

Erica Franklin, Attorney at Law, Law Office of Erica Franklin

Caneel C. Fraser, Attorney, Maser Law Group, A Professional Law Corporation

Mark Freschi, Attorney, Sole Practitioner

Bruce Funk, Attorney, Private Practice

Josh Furman, Attorney, WilmerHale LLP

Jeffrey J. Gale, Chief Deputy State Public Defender (Ret.), Member, Task Force on Criminal

Jury Instructions, from its inception through the initial publication of jury instructions

Joel Garcia, Attorney, Criminal Defense Attorney

Abe Gardner, Deputy Public Defender, Napa County Office of the Public Defender

Catherine R. Gellis, Attorney, Solo Practitioner

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

Abram Genser, Deputy Public Defender, San Diego Public Defender’s Office

Mahsa Gholami, Lawyer, Bonjour, Thorman, Burns & Dahm

Sandra Gillies, Attorney at Law, Law Office of Sandra Gillies

Shane Glynn, Attorney

Michael Goodman, Head Deputy, Information Systems, Los Angeles County Alternate Public

Defender

Laura P. Gordon, Attorney at Law, California Attorneys for Criminal Justice

Ann Gottesman, Attorney at Law, Law Office of Ann Gottesman

Sheryl S. Graf, Attorney at Law, Law Office of Sheryl S. Graf

Stephen Greenberg, Attorney, California Attorneys for Criminal Justice

Nicholas S. Gregoratos, Attorney, CCSF, Law Office of Nicholas Gregoratos

Ely Grinvald, Attorney

Robin D. Gross, Attorney at Law, Law Office of Robin Gross

Jason Gundel, Assistant Public Defender, Imperial County Public Defender

Christopher L. Haberman, Attorney at Law, California Appellate Defense Counsel, Panel

Attorney

Firass Halawi, Attorney, San Francisco Public Defender’s Office

Maribeth Halloran, Attorney, Law Office of Mb Halloran

Mitri Hanania, Attorney-at-Law, Law Office of Mitri Hanania

Danielle Harris, Public Defender, San Francisco Public Defender’s Office

Heather Harris, Deputy Alternate Defender, Office of the Alternate Defender, Santa Clara

County

Linda K. Harvie, Appellate Attorney, Law Office of Linda K. Harvie

Susan Hearne, Attorney Owner, Nor Cal Criminal Law

Kathryn Hirano, Retired Public Defender, Los Angeles County

Jeffrey Hirschey, Product Counsel, Databricks, Inc.

Bryna Holland , Deputy Public Defender III, Marin County Public Defender

Carolyn Homer, Associate, Latham & Watkins

Lauren Horner, Attorney, Law Office of Lauren Horner

Tim Hwang, Partner, Rosen, Wolfe, and Hwang

Susan Israel, Principal, Law Office of Susan Israel

Carrie R. James, Associate, Quinn Emanuel Urquhart & Sullivan, LLP

Tom Jarboe, Attorney

Kayla Jimenez, Attorney, US IP Attorneys

Melissa Jimenez, Legal Assistant

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

Grace Jo, Private Attorney, Independent Juvenile Defender Program

Kevin Jones, Associate, Quinn Emanuel Urquhart & Sullivan, LLP

Richard B. Jordan, Attorney, Ari Friedman Law Offices, P.C.

Brad Kaiserman, Attorney, The Law Office of Brad K. Kaiserman

Robin Kallman, Supervising Deputy State Public Defender, Office of the State Public Defender

Ken Karan, Attorney, Sole Practitioner

Jan David Karowsky, Attorney at Law, California Attorneys for Criminal Justice

Aharon Kaslow, Attorney, Quinn Emanuel Urquhart & Sullivan LLP

Sajid Ahmed Khan, Deputy Alternate Public Defender, Santa Clara County Alternate Defender

Amber Kirchenschlager, Deputy Public Defender, San Diego Public Defender’s Office

Leonard J. Klaif, Attorney at Law, Private Practitioner

Marc Kligman, Attorney, Law Office of Marc J. Kligman

Tim Kline, Attorney, Gross & Klein LLP

Steven J. Koeninger, Assistant Federal Public Defender, Federal Public Defender

Joel C. Koury, Attorney at Law, Law Offices of Joel C. Koury

Phillip Krueger, Attorney, Carrillo Law Center

Michael S. Kwun, Partner, Kwun Bhansali Lazarus LLP

Denver M. Latimer, Attorney, Butte County Public Defender

Susan Leff, Attorney at Law, Attorney

Jane Levich, Associate General Counsel, Databricks, Inc.

Kevin Liebeck, Attorney, Liebeck Law, APC

Audrey Stephanie Loftin, Criminal Defense Lawyer, Long Beach Bar; Criminal Law Section of

the State Bar; Orange Co. Bar Assoc; CA Women Lawyers

Rudolph Loewenstein, Attorney at Law, Law Offices of Rudolph E. Loewenstein

Kathleen Lu, Senior Counsel, Mapbox

Aaron Mackey , Staff Attorney, Electronic Frontier Foundation

Doug MacMaster, Attorney at Law

David J. Macher, Deputy Public Defender, Law Offices of the Public Defender, Riverside

Marguerite Malloy, Deputy Public Defender, City of San Francisco

Leonard Matsuk, Attorney, Sole Practitioner and Member of California Attorneys for Criminal

Justice

Lisa McCamey, President, Law Offices of Lisa K. McCamey, PC

Jessica C. McElfresh, Attorney-at-Law, Criminal Defense Practitioner

Mark McGoldrick, Assistant Public Defender, Supervisor, Homicide Unit, Alameda County

Public Defender

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

Michael McKneely, Attorney at Law, Criminal Defense Lawyer

Roshni Mehta, Attorney

Linden K. Millard, Attorney at Law, Independent Juvenile Defender Program

Roy E Miller, Partner, Hansen & Miller Law Firm

Suzanne Mindlin, Principal, Law Office of Suzie Mindlin

Candis Mitchell, Chief Assistant Federal Public Defender, Federal Public Defender, Northern

California

John Mittelman, Attorney

Richard Jay Moller, Criminal Appellate Practitioner

Heather Monasky, Attorney, The Monasky Firm

Laurie Mont, Attorney at Law

Brent Montgomery, Retired Deputy Public Defender, Los Angeles County Public Defender

Alfredo M Morales, Private Attorney

Joseph D. Mornin, Associate Attorney, Cooley LLP

Jessie Morris, Assistant Public Defender, Sacramento Public Defender’s Office

Carol Moses, Attorney at Law, Criminal Defense Attorney

Mary Elizabeth Moss, Senior Deputy Public Defender, Tulare County Public Defender

Taylor S. Moudy, Attorney at Law

David Mugridge, Attorney, Mugridge Law Firm

Stephen A. Munkelt, Executive Director, California Attorneys for Criminal Justice

Vinuta Naik, Senior Attorney, Community Legal Services East Palo Alto

Kyle Neddenriep, Deputy Public Defender, Santa Clara County Public Defender

Michael P Newman, Attorney, Law Office of Michael P Newman, PC

Robin Packel, Appellate Assistant Federal Public Defender, Federal Public Defender

Autumn Paine, Attorney at Law, Paine Criminal Defense PC

Lilliana Paratore, Supervising Attorney, UnCommon Law

Joseph Pertel, Attorney, Law Office of Joseph A. Pertel

William Pilon, Associate, Quinn Emanuel Urquhart & Sullivan LLP

Lorraine M. Purviance, Attorney, Lake County Indigent Defense

Walter K. Pyle, Attorney at Law, Walter K. Pyle & Associates

Sandy Rabadi, Attorney, Law Office of Sandy Rabadi

Victoria Ramirez, Deputy Public Defender, County of San Diego Office of Primary Public

Defender

Jess Raphael, Attorney, Raphael Law

Marek Reavis, Public Defender, Humboldt County Public Defender

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

Scott Roberts, Deputy Public Defender, Sonoma County Public Defender’s Office

Jennifer Rockenback, Attorney

Danica Rodarmel, State Policy Director, San Francisco Public Defender’s Office

Mario Rodriguez, Attorney at Law, Private Practitioner

Vanessa Rownaghi, Deputy Alternate Public Defender IV, Los Angeles County Alternate Public

Defender’s Office

Ruben J. L. Salgado, Attorney at Law

Mickey Sampson, Principal Attorney, Sacramento County Public Defender

Stephanie Sauter, Co-Executive Director, LAW Project of Los Angeles

David Schlussel, Deputy Director, Collateral Consequences Resource Center

Steven Schorr, Attorney and Counselor at Law, Law Office of Steven Schorr

Edward H. Schulman, Attorney at Law, Private Practice

Jeff Schwartz, President, Consumer Attorneys Association of Los Angeles

Katherine Schwinghammer, Attorney, Solo Practitioner

Charles M. Sevilla, Attorney, Law Office of Charles Sevilla

Heather E. Shallenberger, Criminal Appellate Panel Attorney

Andrew Shear, Supervising Deputy State Public Defender, Office of the State Public Defender

Kathleen Sherman, Attorney at Law

William H. Shibley, Attorney

Olivia Sideman, Associate Deputy Public Defender, Alameda County Public Defender’s Office

Sangeeta Sinha, Attorney, Law Offices of Sangeeta Sinha

Stephanie Slattery, Deputy Public Defender, San Diego County Office of the Public Defender

Kiana Sloan-Hillier, Attorney, Law Office of Kiana Sloan-Hillier

Gary A Smith, Attorney, Sole Practitioner

David Snyder, Executive Director, First Amendment Coalition

Rachel Sollecito, Lawyer, Spiro Harrison

Ilona Solomon, Deputy Public Defender, San Francisco Public Defender’s Office

Onell Soto, Deputy Public Defender, San Diego County Office of the Public Defender

Cancion Sotorosen, Staff Attorney & Clinical Supervisor, East Bay Community Law Center

Stephen Stanwood, Founder, stanwood.law

Sean Swartz, Alternate Public Defender, Solano County Public Defender

Arthur Tait, Attorney at Law, Tait Law Firm and California Traffic Defense Bar Association

Richard Tan, Attorney

Armen Tashjian, Lawyer, Consumer Attorneys Association of Los Angeles Member

Attachment C: Statement of Support from Law Professors, Law Librarians, and Legal

Practitioners 11/24/20

Statement of Support from Law Professors, Law Librarians, and Legal Practitioners, continued

Niranjan Fred Thiagarajah, Attorney

Alyssa Thompson, Attorney, Biggam, Christensen, & Minsloff

Steven Neil Trenholne, Attorney at Law

Agavni Tulekyan, Attorney, Independent Juvenile Defender Program

Joseph M. Tully, Attorney at Law, Tully & Weiss Attorneys at Law

Joseph M. Tysel, Attorney at Law, Sole Practitioner in CA

Richard Van Zandt, Deputy Public Defender, Yolo County Public Defender’s Office

Mark R. Vermeulen, Criminal Defense Practitioner

Pauline Villanueva, Attorney

Sierra Villaran , Deputy Public Defender, San Francisco Public Defender’s Office

Fred von Lohmann, Attorney

Gene Vorobyov, Appointed Appellate Counsel

Kat Walsh, Attorney

James Warden, Supervising Deputy Public Defender, El Dorado County Public Defender’s

Reed Webb, Attorney at Law, Appellate Defenders, Inc. Panel Attorney

Ethan Weiss, Deputy Public Defender, San Joaquin Public Defender’s Office

Roslynn Wilfert, Attorney

Laurie Wilmore, Appellate Criminal Specialist

Michael Wolfe, Partner, Rosen, Wolfe & Hwang

Cyn Yamashiro, Director, Los Angeles Independent Juvenile Defender

Jane Yang, Head Deputy Alternate Public Defender, Los Angeles County Alternate Public

Defender’s Office

Mark Yanis, Attorney, Solo Practitioner

Alex Zocchi, Deputy Public Defender, Napa County Public Defender’s Office

ATTACHMENT D: STATEMENT OF SUPPORT FROM LAW STUDENTS

AND LAW STUDENT ORGANIZATIONS

Attachment D: Statement of Support from Law Students and Law Student Organizations

11/24/20

ATTACHMENT D: STATEMENT OF SUPPORT FROM LAW STUDENTS

AND LAW STUDENT ORGANIZATIONS

The undersigned support Public Resource’s proposal to change California Rule of Court 2.1050,

subdivision (c), and remove all copyright claims and notices from the California Civil Jury

Instructions, California Criminal Jury Instructions, and each volume’s related web pages on the

Judicial Branch web site. As future practitioners, we recognize that open and unfettered access to

California’s Jury Instructions is a crucial public need. We share Public Resource’s goal of

increasing public access to the law and ask the Judicial Council to take these steps to clarify that

California’s Jury Instructions are in the public domain.

All affiliations are for identification purposes only and do not imply institutional endorsement.

Law Student Organizations

Berkeley Law Wage Justice Clinic, University of California, Berkeley, School of Law

Berkeley Journal of Gender, Law & Justice, University of California, Berkeley, School of Law

Berkeley Technology Law Journal, University of California, Berkeley, School of Law

Hastings Law Journal, University of California, Hastings College of the Law

Intellectual Property and Technology Law Journal, University of San Francisco School of Law

King Hall Intellectual Property Law Association, University of California, Davis, School of Law

Law and Political Economy Society, University of California, Berkeley, School of Law

Law Students of African Descent, University of California, Berkeley, School of Law

Middle Eastern & North African Law Students Association,

University of California, Berkeley, School of Law

Post-Conviction Advocacy Project, University of California, Berkeley, School of Law

Pilipinx American Law Society, University of California, Berkeley, School of Law

Public Interest Law & Technology, University of California, Berkeley, School of Law

Law Students

Nabila Abdallah, University of California, Berkeley, School of Law, ’22

Marjan Kris Abubo, University of California, Davis, School of Law, ’22

Tahsin Ahmed, University of California, Berkeley, School of Law, ’23

Rodolfo Rivera Aquino, University of California, Berkeley, School of Law, ’22

Jenna Archer, University of California, Berkeley, School of Law, ’22

Attachment D: Statement of Support from Law Students and Law Student Organizations

11/24/20

Statement of Support from Law Students and Law Student Organizations, continued

Ashleigh Atasoy, University of California, Berkeley, School of Law, ’22

Emma Atuire, University of California, Berkeley, School of Law, ’21

Andrew Barron, University of California, Berkeley, School of Law, ’21

Sarah Bauer, University of California, Berkeley, School of Law, ’21

Jacob Binder, University of California, Berkeley, School of Law, ’23

Cameron Bird, University of California, Berkeley, School of Law, ’23

Emma Blake, University of California, Berkeley, School of Law, ’22

Margerite Blase, University of California, Berkeley, School of Law, ’22

Madison Bower, University of California, Berkeley, School of Law, ’21

Tiara Brown, University of California, Berkeley, School of Law, ’22

Cort Carlson, University of California, Berkeley, School of Law, ’22

Vannalee Cayabyab, University of California, Davis, School of Law, ’22

Amanda Chang, University of California, Berkeley, School of Law, ’23

Yongbin Chang, University of California, Berkeley, School of Law, ’22

Karen Chen, University of California, Berkeley, School of Law, ’23

Hyeyoon Choi, University of California, Davis, School of Law, ’22

Muhtadi Choudhury, University of California, Berkeley, School of Law, ’21

Stephanie Clemente, University of California, Berkeley, School of Law, ’23

Maria Luiza V. Coelho dos Santos, University of California, Irvine, School of Law, ’22

Nicole Conrad, University of California, Berkeley, School of Law, ’22

Jetta Cook, University of California, Berkeley, School of Law, ’22

Thomas Cotugno, University of California, Hastings College of the Law, ’23

Jacqueline Crispino, University of California, Berkeley, School of Law, ’22

Bria Dantzler, Georgetown University Law Center, ’22

Arni Daroy, University of California, Berkeley, School of Law, ’23

Jameson Davis, University of California, Berkeley, School of Law, ’22

Attachment D: Statement of Support from Law Students and Law Student Organizations

11/24/20

Statement of Support from Law Students and Law Student Organizations, continued

Tiffany Deguzman, University of California, Berkeley, School of Law, ’22

Ines Diaz, University of California, Berkeley, School of Law, ’23

Mai Diarra, University of California, Berkeley, School of Law, ’23

Jaime Dienst, University of California, Berkeley, School of Law, ’23

Meredith Dixon, University of California, Berkeley, School of Law, ’22

Miranda Drolet, University of California, Berkeley, School of Law, ’21

Sarah Dupree, University of California, Berkeley, School of Law, ’23

Ray Durham, University of California, Berkeley, School of Law, ’22

Ivey Dyson, University of California, Berkeley, School of Law, ’21

Chelsea Espiritu, University of California, Hastings College of the Law, ’22

Mary Fata, University of California, Berkeley, School of Law, ’22

Thomas Ferdon, University of California, Berkeley, School of Law, ’21

Colleen Fitzgerrell, University of California, Berkeley, School of Law, ’23

Jenna Forster, University of California, Berkeley, School of Law, ’22

Kurt Fredrickson, University of California, Berkeley, School of Law, ’23

Adrian Garboldi, University of California, Berkeley, School of Law, ’22

Elias Garcia, University of California, Berkeley, School of Law, ’23

Emmanuel Garcia, University of California, Hastings College of the Law, ’21

Marcus Grimes, University of California, Hastings College of the Law, ’22

Aditi Ghatlia, University of California, Berkeley, School of Law, ’22

Angela Griggs, University of California, Berkeley, School of Law, ’21

Tiffany Gutierrez, University of California, Hastings College of the Law, ’22

Noelle Guerrero, University of California, Davis, School of Law, ’22

Wilson Hall, Santa Clara University School of Law, ’22

Jade Harvey, University of California, Los Angeles, School of Law, ’22

Arielle Hernandez, University of California, Berkeley, School of Law, ’23

Attachment D: Statement of Support from Law Students and Law Student Organizations

11/24/20

Statement of Support from Law Students and Law Student Organizations, continued

Meredith Huang, University of California, Berkeley, School of Law, ’23

Loc Hoang, University of California, Davis, School of Law, ’22

Parker Johnson, University of California, Los Angeles, School of Law, ’22

Ryan Jorgensen, University of California, Berkeley, School of Law, ’21

Gia Jung, University of California, Berkeley, School of Law, ’21

Natalie Kaliss, University of California, Berkeley, School of Law, ’23

Sean Kolkey, University of California, Berkeley, School of Law, ’22

Raja Krishna, University of California, Berkeley, School of Law, ’21

Joseph Kroon, University of California, Berkeley, School of Law, ’22

Fatima Ladha, University of California, Berkeley, School of Law, ’23

Joshua Laroya, University of California, Hastings College of the Law, ’22

Pauline Le, University of California, Berkeley, School of Law, ’23

Samson Lim, University of California, Berkeley, School of Law, ’21

Angela Luh, University of California, Berkeley, School of Law, ’21

Natasha Mangham, University of California, Berkeley, School of Law, ’23

Matt Menezes, University of California, Berkeley, School of Law, ’23

Jasjit Mundh, University of California, Berkeley, School of Law, ’21

Elana Muroff, University of California, Berkeley, School of Law, ’23

Samantha Murray, University of California, Berkeley, School of Law, ’21

Eliza Meredith, University of California, Berkeley, School of Law, ’21

Meet Mehta, University of California, Berkeley, School of Law, ’22

Katie Melnick, University of California, Berkeley, School of Law, ’23

Alex Mesher, University of California, Berkeley, School of Law, ’22

Henry Metro, University of California, Berkeley, School of Law, ’23

Rudi-Ann Miller, University of California, Berkeley, School of Law, ’22

Taliah Mirmalek, University of California, Berkeley, School of Law, ’23

Attachment D: Statement of Support from Law Students and Law Student Organizations

11/24/20

Statement of Support from Law Students and Law Student Organizations, continued

Paulina Montez, University of California, Berkeley, School of Law, ’23

Erin Moore, University of California, Berkeley, School of Law, ’21

William MacKinnon Morrow, University of California, Berkeley, School of Law, ’23

Shalev Netanel, University of California, Berkeley, School of Law, ’22

Joy Navarro, University of California, Berkeley, School of Law, ’22

Dante O'Connell, University of California, Berkeley, School of Law, ’22

Knychelle Passmore, University of California, Berkeley, School of Law, ’22

Kelsey Peden, University of California, Berkeley, School of Law, ’21

Amy Reavis, University of California, Berkeley, School of Law, ’22

Kelsey Reid, University of California, Berkeley, School of Law, ’23

Angelika Robertson, University of California, Davis, School of Law, ’23

Matthew Santos, University of California, Davis, School of Law, ’22

Arman Sharif, University of California, Berkeley, School of Law, ’22

Evvy Archibald Shulman, University of California, Berkeley, School of Law, ’22

Carmen Sobczak, University of California, Berkeley, School of Law, ’21

Samuel Ezra Sokolsky, University of California, Berkeley, School of Law, ’22

Tal Ratner Solovey, University of California, Berkeley, School of Law, ’22

Veronica Stoever, University of California, Berkeley, School of Law, ’22

Etelle Stephan, University of California, Davis, School of Law, ’23

Jennifer Sun, University of California, Berkeley, School of Law, ’23

Tyler Takemoto, University of California, Berkeley, School of Law, ’22

Rachel Thompson, University of California, Berkeley, School of Law, ’22

Stephanie Tilden, University of California, Berkeley, School of Law, ’21

Lauren Trambley, University of California, Hastings College of the Law, ’21

Seth Tuthall, University of California, Berkeley, School of Law, ’23

Kimberly Valladares, University of California, Berkeley, School of Law, ’23

Attachment D: Statement of Support from Law Students and Law Student Organizations

11/24/20

Statement of Support from Law Students and Law Student Organizations, continued

Audrey E. Valli, University of California, Hastings College of the Law, ’21

Ana Urgiles, University of California, Berkeley, School of Law, ’22

Alexander Joel Watson, University of California, Davis, School of Law, ’22

Cindy West, University of Miami School of Law, ’22

Melody Wong, University of California, Berkeley, School of Law, ’23

Rachel Wu, University of California, Berkeley, School of Law, ’21

Jessica Williams, University of California, Berkeley, School of Law, ’21

Sylvia Woodmansee, University of California, Berkeley, School of Law, ’23

Maggie Woods, University of California, Berkeley, School of Law, ’22

Jane Yang, University of California, Berkeley, School of Law, ’23

Angela Zhao, University of California, Berkeley, School of Law, ’23

ATTACHMENT E: LETTER OF SUPPORT FROM

EDWARD H. SCHULMAN, ATTORNEY AT LAW

Edward H. Schulman

Attorney at Law

9420 Reseda Boulevard Of Counsel: Mark Alan Hart, Esq.

#530

Northridge, California 91324

Telephone: 818-363-6906

Fax: 818-349-2558

email: [email protected]

November 20, 2020

Jennifer M. Urban

Clinical Professor of Law

Director of Policy Initiatives, Samuelson Law, Technology & Public Policy Clinic

Faculty Co-Director, Berkeley Center for Law and Technology

UC Berkeley, School of Law

342 Boalt Hall (N. Addition

Berkeley, California 94720-0001

Email: [email protected].edu

Re: Keep CAJIC Public

Dear Professor Urban:

I responded to your on-line request through CACJ in support of your petition

efforts to the Judicial Council of California. Having practiced law for more than 48 years

as criminal defense attorney, four of which as a member of the CALJIC Committee in

Los Angeles (1985-1989) during my tenure as Chief Assistant State Public Defender, I

can attest to the critical role CALJIC instructions play in the administration of justice.

They are the heart and sole of the jury’s deliberative process and serve to inform not only

practitioners but the public at large in matters of law.

They must remain in the public domain.

Best wishes,

Edward H. Schulman

State Bar Number 51523

EHS:sam