Tuesday, June 30, 2009

Proposed expert testimony of John Perry Barlow excluded in SONY v Tenenbaum

The plaintiffs' motion to exclude the proposed expert testimony of former Grateful Dead lyricist John Perry Barlow has been granted, in SONY BMG Music Entertainment v. Tenenbaum. The court's order is as follows:

Judge Nancy Gertner: Electronic ORDER entered granting [855] Motion to Strike. "The Plaintiffs' Motion to Exclude Defendant's Expert John Perry Barlow [855] is GRANTED. The Defendant has indicated that no supplemental Expert Report will be forthcoming, therefore the Court considers the Amended Declaration presently before it (document # 855-2). This report indicates that Mr. Barlow proposes to testify on two main subjects relating to the "fairness of peer-to-peer file sharing in the context of the recording industry": (1) the impact of file sharing on the music industry's business model; and (2) how peer-to-peer technology furthers a fundamental human need to "share art." Id. at 2. Philosophical pronouncements like those in the latter category are not within the scope of expert testimony and the Court cannot give them the imprimatur of "expertise" at trial. Counsel for the Defendant analogized Barlow to the truck driver who offers expert testimony in an accident case on such things as the impact of a load shifting while driving. The analogy is misplaced: If Barlow were to testify about the creative process in which he has been engaged, that would be a matter of expertise drawn from experience. But he seeks to testify about market conditions, on the one hand, and philosophy and policy on the other. The truck driver who is an expert about trucking would not be permitted to testify, for example, about either existentialism or GM's bankruptcy. At most, the policy-judgments that Barlow intends to present may be better suited to testimony before Congress than testimony before a jury. If appropriate anywhere in the courtroom -- a question which the Court reserves -- these considerations belong in counsel's closing argument. With respect to the concrete impact of file sharing on the music industry, Barlow has not identified any data or publication that will support his views, nor does he describe in any depth the conclusions that he would draw from his "personal experiences in the music industry." Id. As a result, he has not provided the Plaintiffs with any basis on which they might examine him. Most notably, Barlow's four-page report fails to include "a complete statement of all opinions the witness will express and the basis and reasons for them," and "the data or other information considered by the witness in forming them." Fed.R.Civ.P. 26(a)(2)(B). It is not enough for Barlow to state that he will rely on his personal experience to testify broadly about a number of topics related to file sharing; an expert must actually disclose the testimony he intends to offer at trial, as completely as possible, and the specific foundation for his opinions. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 641 (7th Cir. 2008). The Rules of Civil Procedure require Barlow to offer those opinions in a manner that enables the opposing party to prepare adequately for trial. The Amended Declaration does not come close to that threshold, and therefore he is excluded as an expert pursuant to Fed.R.Civ.P. 37(c)(1)." (Gaudet, Jennifer)

Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player


Eric said...


John Perry Barlow is not just a musician as the judge so crudely made analogy of, he is also the Vice Chairman of the EFF, associated with several electronic media groups, and gives lectures on topics that are at the heart of this conflict.

The Judge could have much easier just denied the motion for failure to be timely without the commentary.

T2 said...

As Ray has correctly pointed out before, this case is being litigated very oddly.

Tenenbaum's team is commendable in its intent to explain the "big picture", and address wider constitutional and philosophical implications --- regarding availability of court proceedings or copyright matters. Those have their place, but getting the procedural details right is also important; and when it comes to arguing minutiae, sticking to deadlines, and focusing on the detailed specifics of this case, I think Tenenbaum's team is not doing as good a job as they could/should.

Maybe if they can get appeals all the way to the Supreme Court, then their "big picture" arguments may find the right audience.

Jimmy Tie Dye said...

John Barlow probably got excluded because he'd try and tell the truth under oath. Peace from Tie Dyed Jim...