Case 1:05-cv-01095-FB-RML Document 204 Filed 11/30/07 Page 1 of 14 PageID #: 2192
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`--------------------------------X
`UMG RECORDINGS, INC., ET AL
`Plaintiffs,
`-against-
`MARIE LINDOR
`Defendant.
`--------------------------------X
`
`MEMORANDUM AND ORDER
`Civil Action No.
`CV-05-1095(DGT)
`
`Trager, J:
`Plaintiffs, a group of record companies, have brought this
`copyright infringement action against defendant. This is one of
`many similar cases proceeding throughout the country in which
`groups of record companies have sued individuals in an attempt to
`combat and deter what they perceive as massive copyright
`infringement over the internet. See, e.g., Atlantic Recording
`Corp. v. Heslep, No. 06-cv-132, 2007 U.S. Dist. LEXIS 35824, at
`*2-3 (N.D. Tex. May 16, 2007); Motown Record Co. v. DePietro, No.
`04-cv-2246, 2007 U.S. Dist. LEXIS 11626, at *2 (E.D. Pa. February
`16, 2007); see also MGM Studios, Inc., et al. v. Grokster, LTD.,
`et al., 545 U.S. 913 (2005); A&M Records, Inc., et al. v.
`Napster, Inc., et al., 239 F.3d 1004 (9th Cir. 2001).
`Two motions are before the court. First, on April 26, 2007,
`defendant moved the court to exclude the expert testimony of Dr.
`Doug Jacobson ("Jacobson") on the ground that it is unreliable.
`Second, on August 28, 2007, plaintiffs moved the court to strike
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`--------------------------------X
`UMG RECORDINGS, INC., ET AL
`Plaintiffs,
`-against-
`MARIE LINDOR
`Defendant.
`--------------------------------X
`
`MEMORANDUM AND ORDER
`Civil Action No.
`CV-05-1095(DGT)
`
`Trager, J:
`Plaintiffs, a group of record companies, have brought this
`copyright infringement action against defendant. This is one of
`many similar cases proceeding throughout the country in which
`groups of record companies have sued individuals in an attempt to
`combat and deter what they perceive as massive copyright
`infringement over the internet. See, e.g., Atlantic Recording
`Corp. v. Heslep, No. 06-cv-132, 2007 U.S. Dist. LEXIS 35824, at
`*2-3 (N.D. Tex. May 16, 2007); Motown Record Co. v. DePietro, No.
`04-cv-2246, 2007 U.S. Dist. LEXIS 11626, at *2 (E.D. Pa. February
`16, 2007); see also MGM Studios, Inc., et al. v. Grokster, LTD.,
`et al., 545 U.S. 913 (2005); A&M Records, Inc., et al. v.
`Napster, Inc., et al., 239 F.3d 1004 (9th Cir. 2001).
`Two motions are before the court. First, on April 26, 2007,
`defendant moved the court to exclude the expert testimony of Dr.
`Doug Jacobson ("Jacobson") on the ground that it is unreliable.
`Second, on August 28, 2007, plaintiffs moved the court to strike
`
`
`
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`defendant's affirmative defense of copyright misuse on the ground
`of legal insufficiency. For the reasons stated below,
`defendant's motion to exclude plaintiffs' expert testimony is
`denied, and plaintiffs' motion to strike defendant's affirmative
`defense is granted.
`
`Discussion
`(1)
`Defendant's Motion to Exclude Expert Testimony
`Plaintiffs intend to prove that defendant illegally
`downloaded and shared their copyrighted music using the file-
`sharing website KaZaA. To do so, plaintiffs have proffered the
`testimony of expert witness Jacobson.1
`Jacobson holds a Ph.D. in Computer Engineering with a focus
`on computer networking, and is certified as a Forensic Computer
`Examiner by the International Association of Computer
`Investigative Specialists. He works as an Associate Professor of
`Electrical and Computer Engineering at Iowa State University,
`where he also serves as the Director of the Information Assurance
`Center and assists the school's police department with computer
`forensics. In addition, he is the Chief Technical Officer and
`
`1 In at least one similar case, a court has relied upon
`Jacobson's expert opinion. See, Motown Record Co. v. DePietro,
`No. 04-cv-2246, 2007 U.S. Dist. LEXIS 11626, at *2 n.4 (E.D. Pa.
`Feb. 16, 2007) (citing Jacobson's expert report in a decision on
`a summary judgment motion).
`
`2
`
`
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`founder of Palisade Systems, a computer security company
`specializing in network monitoring and filtering technologies.
`He has written several articles and made numerous presentations
`on the topic of computer networking. On September 9, 2003,
`Jacobson testified before the United States Senate Judiciary
`Committee on the uses of peer-to-peer protocols. Similar
`technology is at issue in this case.
`Jacobson bases his opinion on investigative data obtained
`from two third-parties: MediaSentry and Verizon Internet
`Services ("Verizon"). Plaintiffs, through the Recording Industry
`Association of America, have employed MediaSentry to browse peer-
`to-peer networks like KaZaA and gather evidence on users engaged
`in illegal downloading and sharing of copyrighted materials.
`See, e.g., Heslep, 2007 U.S. Dist. LEXIS 35824, at *2-3
`(discussing the role of MediaSentry in a similar case).
`MediaSentry provided plaintiffs with evidence, such as
`screenshots and user logs, indicating that KaZaA user
`"jrlindor@KaZaA" had downloaded and made available for download
`copyrighted material. Verizon was defendant's internet service
`provider during the alleged infringement and provided plaintiffs
`with information regarding defendant's IP address.
`Jacobson is prepared to testify as follows: (1) defendant's
`internet account and computer were used to download and upload
`copyrighted music from the internet using the KaZaA peer-to-peer
`
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`network; (2) over 700 files were found on a computer using the
`KaZaA user id "jrlindor@KaZaA"; (3) MediaSentry was able to
`download eleven copyrighted songs from defendant; (4) 624 files,
`most of which were copyrighted material, were available to the
`general public to download from a computer using the IP address
`assigned to defendant; and (5) at least some of the music found
`on defendant's computer was downloaded from other internet users.
`Defendant has moved in limine to exclude Jacobson's
`testimony, alleging that his methods are unreliable. Federal
`Rule of Evidence 702 governs the admission of expert testimony,
`and provides:
`If scientific, technical, or other specialized
`knowledge will assist the trier of fact to understand
`the evidence or to determine a fact in issue, a witness
`qualified as an expert by knowledge, skill, experience,
`training, or education, may testify thereto in the form
`of an opinion or otherwise, if (1) the testimony is
`based upon sufficient facts or data, (2) the testimony
`is the product of reliable principles and methods, and
`(3) the witness has applied the principles and methods
`reliably to the facts of the case.
`Fed. R. Evid. 702. As the proponents of the evidence, plaintiffs
`bear the burden of establishing admissibility by a preponderance
`of the evidence. See Price v. Fox Entm't Group, Inc., 499 F.
`Supp. 2d 382, 386-87 (S.D.N.Y. 2007); Israel v. Springs Indus.,
`No. 98-cv-5106, 2006 U.S. Dist. LEXIS 80863, at *8-9 (E.D.N.Y.
`Nov. 3, 2006) (citing Daubert v. Merrell Dow Pharms., 509 U.S.
`579, 593 n.10 (1993)).
`Under Rule 702, district courts function as gatekeepers,
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`"ensuring that an expert's testimony rests on a reliable
`foundation and is relevant to the task at hand." Daubert, 509
`U.S. at 597; see also Kuhmo Tire Co. v. Carmichael, 526 U.S. 137,
`147 (1999) (applying Rule 702 and Daubert to testimony based on
`technical or other specialized knowledge).
`The Supreme Court has suggested that it might be helpful for
`district courts to consider the following non-exclusive factors
`when determining the reliability of expert evidence: (1) whether
`the expert's opinions are tested or are testable; (2) whether the
`expert's conclusions have been published and subjected to peer
`review; (3) in the case of scientific technique, the potential or
`known error rate; and (4) whether the expert's conclusions have
`gained general acceptance in the relevant scientific community.
`Daubert, 509 U.S. at 593-94.
`Nevertheless, "experience in conjunction with other
`knowledge, skill, training or education . . . [may] provide a
`sufficient foundation for expert testimony," and "[i]n certain
`fields, experience is the predominant, if not sole, basis for a
`great deal of reliable expert testimony." Advisory Committee
`Notes, 2000 Amendments, Fed. R. Evid. 702; see also Kumho Tire,
`526 U.S. at 156 ("[N]o one denies that an expert might draw a
`conclusion from a set of observations based on extensive and
`specialized experience.").
`As the Second Circuit has noted, district courts should
`
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`presume expert evidence is reliable. Borawick v. Shay, 68 F.3d
`597, 610 (2d Cir. 1995); see also Clarke v. LR Systems, 219 F.
`Supp. 2d 323, 332 (E.D.N.Y. 2002) ("[T]he Second Circuit's
`standard for admissibility of expert testimony is especially
`broad.") (collecting authority). Indeed, "Daubert expressed
`. . . faith in the power of the adversary system to test 'shaky
`but admissible' evidence, and advanced a bias in favor of
`admitting evidence short of that solidly and indisputably proven
`to be reliable." Id. (citing Daubert, 509 U.S. at 596).
`First, as a threshold matter, Jacobson's expert opinion is
`highly relevant. His testimony will explain the various
`technologies used to infringe copyrights over the internet, and
`will link an otherwise anonymous internet user, "jrlindor@KaZaA,"
`with the defendant's internet account. If believed, his
`testimony makes it more likely that defendant committed copyright
`infringement. See Fed. R. Evid. 401 ("'Relevant evidence' means
`evidence having any tendency to make the existence of any fact
`that is of consequence to the determination of the action more
`probable or less probable than it would be without the
`evidence.").
`Second, Jacobson's opinion is reliable enough to be
`admitted. Jacobson bases his opinion on objective data provided
`by MediaSentry and Verizon, none of which required interpretation
`or conjecture. MediaSentry merely documented the online file-
`
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`sharing activity of "jrlindor@KaZaA," and Verizon merely revealed
`which IP addresses were assigned to defendant's account during
`specified times. See Fed. R. Evid. 703 (providing that an expert
`may rely on facts or data "of a type reasonably relied upon by
`experts in the particular field in forming opinions or inferences
`upon the subject," even if the underlying facts and data may not
`be independently admissible). Using that data, Jacobson draws
`from his experience to present a theory of how defendant used the
`internet to infringe plaintiffs' copyrights. His experience
`qualifies him to opine on how file-sharing works, how it can be
`used to infringe copyrights, and how seemingly anonymous internet
`activity can be linked to defendant. Jacobson's testimony
`requires virtually no subjective analysis.
`Jacobson has testified that others in his field, conducting
`a similar analysis, would have proceeded in the same way, and
`that there is no other, more reliable method to do so. Jacobson
`Dep. at 149:12-151:18. Defendant has not claimed otherwise,
`except to argue that Jacobson's opinion should be excluded
`because his method fails to comport with the four non-exclusive
`Daubert factors. The Daubert factors, however, were intended as
`suggestions, and are not appropriate for every type of expert
`testimony. Daubert, 509 U.S. at 593 ("Many factors will bear on
`the inquiry, and we do not presume to set out a definitive
`
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`checklist or test.").2 In this case, Jacobson is doing no more
`than applying sound technological principals to specific facts.
`His experience qualifies him as an expert, his method is
`reliable, and his testimony should be admitted. Defendant is
`free to use cross-examination or her own expert to address any
`perceived weakness in the credibility or accuracy of Jacobson's
`conclusions.
`
`(2)
`Motion to Strike the Affirmative Defense of Copyright Misuse
`Defendant has raised the affirmative defense of copyright
`misuse, which alleges that by collectively bringing infringement
`lawsuits, plaintiffs are using their copyrights in an
`impermissibly anticompetitive manner. Plaintiff has moved to
`strike defendant's affirmative defense of copyright misuse on the
`ground of legal insufficiency.
`Federal Rule of Civil Procedure 12(f) provides that "within
`
`2 See also, MGE UPS Systems, Inc. v. Fakouri Electrical
`Eng'g, Inc., No. 04-cv-445, 2006 U.S. Dist. LEXIS 14142, at *5-8
`(N.D. Tex. March 14, 2006) (admitting expert testimony in the
`field of computer forensics because there was a reliable basis
`for the witness's technical knowledge and opinion, without
`reference to the Daubert factors); Davison v. Eldorado Resorts
`LLC, No. 05-cv-0021, 2006 U.S. Dist. LEXIS 12598, at *10-13 (D.
`Nev. March 10, 2006) (same); Computer Associates Int'l v. Quest
`Software, Inc., 335 F. Supp. 2d 688, 693-94 (N.D. Ill. 2004)
`(admitting expert testimony from a computer scientist to compare
`programming code in a copyright infringement case because the
`expert's methodology was reliable, without reference to the
`Daubert factors).
`
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`20 days after the service of the pleading upon the party or upon
`the court's own initiative at any time, the court may order
`stricken from any pleading any insufficient defense or any
`redundant, immaterial, impertinent, or scandalous matter." Fed.
`R. Civ. P. 12(f).
`In this case, defendant raised her copyright misuse
`affirmative defense for the first time in her amended answer,
`filed on March 20, 2006. Plaintiffs moved to strike the defense
`on August 28, 2007, well beyond the twenty-day time limit
`suggested by Rule 12(f). Nonetheless, plaintiffs' motion is
`timely because, as the Rule states, a court may entertain a
`motion to strike "at any time." Id.; see also FDIC v. Pelletreau
`& Pelletreau, 965 F. Supp. 381, 390 (E.D.N.Y. 1997) (noting that
`court had authority to consider untimely motion to strike); Wine
`Markets Int'l, Inc. v. Bass, 177 F.R.D. 128, 133 (E.D.N.Y. 1998)
`(noting that court has authority to consider motion to strike at
`any time, and this discretion renders the 20-day rule
`unimportant).
`Motions to strike, however, are strongly disfavored, and
`"will be granted only if: (1) there is no question of fact that
`might allow the defense to succeed; (2) there is no substantial
`question of law, the resolution of which would allow the defense
`to succeed and (3) plaintiff shows prejudice if the defense is
`allowed to stand." Microsoft Corp. v. PTI, Inc., No. 01-cv-2018,
`
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`2003 U.S. Dist. LEXIS 5767, at *2-3 (E.D.N.Y. March 14, 2003)
`(denying a motion to strike copyright misuse as an affirmative
`defense). Notwithstanding the disfavored status of 12(f)
`motions, however, courts have granted them to strike insufficient
`claims of copyright misuse. See, e.g., Microsoft Corp. v.
`Computer Support Servs. of Carolina, Inc., 123 F. Supp. 2d 945,
`956 (W.D.N.C. 2000) (striking affirmative defense of copyright
`misuse because defendant failed to allege facts that constituted
`a viable antitrust claim); Microsoft Corp. v. BEC Computer Co.,
`818 F. Supp. 1313, 1317 (C.D. Cal. 1992) (same); Microsoft Corp.
`v. Jesse's Computers & Repair, 211 F.R.D. 681, 685 (D. Fla. 2002)
`(same).
`In general, copyright owners commit copyright misuse when
`they attempt to extend the scope of their copyrights and use them
`anticompetively in violation of antitrust laws. See 4 Nimmer on
`Copyright § 13.09 (2007). Some courts have held that a defendant
`can raise copyright misuse as an affirmative defense to an
`infringement action. See, e.g., PTI, 2003 U.S. Dist. LEXIS 5767,
`at *2-3 (denying a motion to strike copyright misuse as an
`affirmative defense); Broadcast Music, Inc. v. Hearst/ABC Viacom
`Entertainment Services, 746 F. Supp. 320, 328 (S.D.N.Y. 1990)
`("[T]he Court is persuaded by the more recent cases that the
`affirmative defense of copyright misuse is cognizable.").
`Most examples of copyright misuse arise from tying
`
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`arrangements, anticompetitive contracts or licensing agreements,
`or the refusal to license to competitors. See 4 Julian O. von
`Kalinowski et al., Antitrust Laws and Trade Regulation § 75.02
`(2d ed. 2007). These categories of misuse share one
`characteristic: the copyright owner has used its copyright to
`gain an impermissible competitive advantage. The alleged
`anticompetitive behavior that plaintiffs are engaged in, however,
`fits into none of those typical categories.
`Defendant alleges, at least nominally, that plaintiffs have
`engaged in copyright pooling, see Def.'s Br. at 7, which is a
`form of copyright misuse arising from agreements among copyright
`owners to pool their copyrights to enjoy a mutual benefit. See,
`e.g., Alden-Rochelle, Inc. v. American Soc. of Composers, Authors
`& Publishers, 80 F. Supp. 888, 893-95 (S.D.N.Y. 1948) (finding an
`antitrust violation where copyright owners pooled their
`copyrights, creating the power to fix prices); see also, e.g.,
`Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441
`U.S. 1, 10 (1979) (holding that ASCAP's practice of issuing
`blanket licenses should be subject to a rule of reason antitrust
`analysis).
`Collectively bringing infringement suits, however, exhibits
`none of the hallmarks of anticompetitive copyright pooling, and
`cannot be classified as such. Defendant has not alleged that
`plaintiffs have pooled their copyrights for a mutual benefit, nor
`
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`that they have abused their combined market power to the
`detriment of copyright consumers. See, e.g., Basic Books, Inc.
`v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1538-39 (S.D.N.Y.
`1991) (holding that collective action to enforce copyrights did
`not amount to copyright misuse because "[p]laintiffs' effort[] to
`restrain competition . . . is simultaneously an effort to stop
`[defendant] from infringing their copyrights. Plaintiffs have
`acted reasonably in so doing, not collusively for some illegal,
`monopolistic purpose.").
`To the contrary, defendant frames the "sole" issue presented
`by plaintiffs' motion as follows:
`[W]hat lawful, "procompetitive" explanation [do
`plaintiffs] have for their admitted copyright-pooling
`agreement . . . [W]hy six (6) different multibillion
`dollar, multinational corporations did in fact need to
`pool all their resources to join forces against a home
`health aide living in Brooklyn, and found it impossible
`to negotiate settlements with her and others like her
`other than pursuant to an impermeable, seamless joint
`front, apart from the obvious explanation that they did
`it to increase their leverage in bludgeoning defendants
`into a defenseless posture, where accepting an
`extortionate settlement demand would be their only
`means of averting financial ruin.
`Def.'s Br. at 8 (emphasis in original). Defendant, however, has
`not cited a single case finding that even remotely similar facts
`constituted copyright misuse, nor has she alleged any viable
`anticompetitive aspects of the plaintiffs' agreement to
`collectively bring infringement suits. As in Basic Books,
`"[p]laintiffs have acted reasonably, not collusively for some
`
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`illegal, monopolistic purpose." Basic Books, 758 F. Supp. at
`1538-39. Accordingly, defendant's claim could not prevail under
`any interpretation of the law or facts.
`Moreover, allowing discovery to proceed on defendant's
`antitrust theory would prejudice plaintiffs. See PTI, 2003 U.S.
`Dist. LEXIS 5767, at *2-3 (noting that motions to strike
`affirmative defenses should only be granted if plaintiff would be
`prejudiced otherwise). Indeed, as the Second Circuit recently
`noted, antitrust discovery is particularly onerous. See, e.g.,
`Transhorn, Ltd. v. United Techs. Corp. (In re Elevator Antitrust
`Litig.), 502 F.3d 47, 50 n.4 (2d Cir. 2007) ("[P]roceeding to
`antitrust discovery can be expensive." (quoting Bell Atlantic
`Corp. v. Twombly, __U.S.__ , 127 S.Ct. 1955, 1966-67 (2007))).
`
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`Conclusion
`For these reasons, defendant's motion to exclude Dr.
`Jacobson's expert testimony is denied, and plaintiffs' motion to
`strike defendant's affirmative defense of copyright misuse is
`granted.
`
`Dated: Brooklyn, New York
`November 30, 2007
`
`SO ORDERED:
`
` /s/
`David G. Trager
`United States District Judge
`
`14
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