That’s precisely what happened to me last week when I opened the newspaper to a Los Angeles Times story concerning a new website, EBookFling, that exists solely for the purpose of enabling electronic book readers to “borrow” books off the site, without providing compensation to either publisher or writer.

“Logically, one could say that publishers can end up losing money,” said Nick Ruffilo, an executive with the company. “It would be hard to argue with that, because it’s not incorrect. But it’s also not the whole picture.” Presumably, that is NOT the whole picture – the whole picture would include the fact that Mr. Ruffilo’s hands would be reaching into the pockets of copyright owners (authors) and licensees (publishers), the lawful recipients of compensation for enabling access to the content under their purview, and transferring that compensation to him. Regardless of the spin Mr. Ruffilo wishes to put on his business methodology, that’s conversion – in both a literal and legal sense.

Whistling in the dark, the company is cited by the Times as claiming their service to be “perfectly legitimate and allowed by the lending policies set by Amazon for the Kindle and Barnes and Noble for the Nook,” (although “calls to [both companies] were not returned”). Ruffino adds, “Legally, this is using a feature that already exists. It fits with the terms of use.”

Whose terms?

One of the oldest premises of the law – some would say the reason for its very existence – is the recognition and protection of private property. The protection of physical property is not an exclusively human trait. Animals mark the boundaries of their territories with urine (we use surveyors), and will defend them with tooth and nail (we use the sheriff, or the militia), but it is the establishment and protection of intellectual property that is unique to our species. Now, I am an intellectual property developer – not a lawyer – but my understanding of the entire coda of copyright, trade mark and patent law has evolved around the concept that the novel product of one’s mind is worth protecting, and the violation of it is no less an offense than the unpermitted trespass to our land, our bodies, our “stuff”. Mr. Ruffino thinks that it should be okay if he “borrows” it for a while, without permission, so that millions of others can “borrow” it from him – for a price. If that’s not illegal – no, downright cheeky – I don’t know what is. Why is it, I wonder, that his company can even entertain the notion that what is mine should be theirs?

The answer is because they can. The same electronic medium in which my publisher insists my work must appear (you’re reading this on line, after all), is prone to getting reproduced – a nice way of saying ripped off – by the very audience to whom I am addressing it. Technology enables the crime, and renders the punishment problematic, but that doesn’t make it right. Just ask the parents of kids who thought it wouldn’t hurt to download a song or two without permission, and found themselves on the wrong end of a six-figure judgment.

There are those who feel that art should exist for a purpose higher than that of material compensation, but the vast majority of those who feel that way about art are incapable of generating it. I admit to having a dog in this fight: I own dozens of patents, trademarks, and copyrights, and I have fed my family with the fruits of my labors only because the law has protected my right to obtain compensation from anyone who wishes to benefit from my work product. There’s the operative word – wishes.  The creator of intellectual property relies on a contract with his public, the willing exchange of pleasure or utility for a fee. The notion that the artist should create a gratuitous endowment out of what was once the exclusive province of his mind is as fundamentally unfair as it is unsound. Am I to work for free?

Check that – I suppose Mr. Ruffilo would hold that I should work for HIM.

Business interests are fond of complaining about the jury system and regularly claim that it is “broken”, it needs to be “fixed”. Perhaps the best word is, in fact, “fixed”; they would like to fix the civil justice system so that it can be better influenced in their direction. Should we hold it against them because they work to achieve an unfair playing field? We should not hate Big Corporations for this, but should we allow them to achieve it? Absolutely not!

I think the jury system our founding fathers borrowed from English common law works just fine in protecting the rights of individual citizens. Frankly, I want six of my fellow citizens sitting and listening to evidence in my case. I want six regular people considering what makes sense and what does not make sense. I do not want a special panel appointed to hear my case, as has been promoted by many business “political parrots”. I do not want the government inserting itself into the civil justice system anymore than they already do. I trust an impartial panel of my fellow citizens to fairly weigh the evidence and reach a decision that makes sense.

Imagine if we did not have a civil justice system? What if we did what Big Business and the Insurance Lobby would like for us to do and do away with all lawsuits; except, of course, when one corporation wants to sue another corporation? Where would we be? Imagine that you get a call and find out that a guy ran a red light and your wife, daughter, or son are in the hospital injured. You go to the hospital and your loved one heals as best as they can or as best as they can based on your ability to pay. What then? If there is no civil justice system do you break out the armor, your sword and your trusty steed and launch an assault on the house of the guy who ran the red light? Do you drive your car into his one day? What recourse for justice would we have without a civil justice system that, at least, promises an opportunity to pursue justice? Keeping the courthouse doors open to allow citizens an opportunity to bring grievances and to have those grievances heard by an impartial jury is an integral part of our justice system.

So, how do we have an opportunity to obtain an impartial jury? Through a process called “voir dire” an opportunity is provided to have your case heard by an impartial set of jurors. Voir dire is simply the opportunity for attorneys representing each of the parties to a lawsuit to ask prospective jurors questions. Those questions are supposed to disclose potential biases held and allow only those who have no preconceived opinions of matters connected to the case to be jurors. For example, if you are suing the ABC Corporation, you might not want an employee or stockholder of the ABC Corporation to be a juror, since the outcome of the case might have an effect on that person. In fairness, you should be permitted to ask that person to step aside for another juror who may not be influenced by their relationship with ABC Corporation.

When attorneys are asking questions of prospective jurors, the inquiry sometimes seems extremely invasive and overly personal. It is not the attorney’s intent to embarrass any prospective juror or be too invasive about the information they are seeking. Their job, though, is to do everything in their power to try and disclose any bias a juror may have and, sometimes, it may be a bias the juror was not even consciously aware of having. In fact, at any point during this questioning, a juror may request that they be allowed to answer questions privately, with only the judge and attorneys present.

During the course of jury selection, the judge or attorneys may ask that a prospective juror be excused without any apparent explanation. This happens for reasons not always apparent or obvious, but it is not a criticism of that particular juror. It is simply the judge or the attorneys doing their very best to impanel as impartial a jury as possible.

Once a panel of jurors is chosen, the attorneys have the opportunity to set forth what they believe their respective cases are all about; this is called opening statements. These opening statements are not evidence and the judge will advise the jurors that they are not to consider them to be evidence. The attorneys are simply trying to give the jurors a summary of the case.

These statements are followed by the plaintiff attorney’s presentation of evidence supporting the case, then the defense attorney’s evidence defending against the complaint. Evidence may be documents or reports introduced into the record, statements of the plaintiff or defendant on the witness stand, and any other evidence the court deems admissible.

Many trials call upon expert witnesses, people who have special skills or training in specific areas such as medicine, engineering, or science. These witnesses are called upon to testify based upon their professional experience and review of the facts and evidence in the case at hand.

When expert testimony is presented, attorneys understand that most jurors will not be familiar with complex terminology and issues. Often, expert witnesses such as doctors, nurses, and engineers may educate the jury by using charts, diagrams and illustrations to explain the terminology and issues involved in a given case.

During the trial, the judge instructs the jury on evidence that is not admissible and should not be used as a factor in deliberations. For example, sometimes jurors wonder if a plaintiff or defendant is covered by insurance – but evidence of insurance is not admissible in civil trials. Similarly, evidence of costs and attorneys fees is generally not admissible. There are good reason for these and other rules of evidence; they are applied in an effort balancing the interests of all the parties.

After all the evidence has been presented, the judge provides jury members with instructions related to the law that should be followed by the jurors during their deliberations. Then attorneys for both sides have the opportunity to summarize the evidence and make the strongest case possible for their clients. This is the trial segment, called final or closing arguments, most often dramatized on television shows.

In listening to closing arguments, a juror’s job is to focus on facts and evidence presented during the trial and apply the law as the judge has given it to them. In the American civil justice system, the burden of proof falls on the plaintiff, whose case must be established beyond “a preponderance of the evidence.” In other words, the plaintiff must present a case that tips the scales of justice just 51% in favor of their case. It is not necessary that the plaintiff prove their case beyond a “reasonable doubt’; the standard rightly applied in criminal cases.

After final arguments and instructions from the judge on how the law is to be applied, jurors retire to the jury room to discuss and deliberate the evidence they have heard. The jury room is off limits to anyone other than jurors, and deliberation can take as much time as is necessary to reach a verdict. At the outset, jurors elect a foreperson to preside over the deliberations. However, all jurors are expected to participate in deliberations based upon their experience, wisdom and understanding of the issues; the verdict they reach must be unanimous.

Once a verdict is reached, it is documented on a verdict form, which consists of several questions the jury must answer to reach a decision in the case. When the form is completed, it is signed by the foreperson and presented to the judge. The judge then reads the verdict aloud in open court, and the trial is concluded.

This is a summary of our civil justice system, but the core, the very foundation for an opportunity to obtain justice, lies with the jurors. For the system to work, it relies on the common sense, responsibility, and the dedication of jurors to listen to the evidence and reach a fair decision. So, when we get past all that goes in between, our justice system begins and ends with citizens willing to be a part of their own government and participate in a system that does work.