Umg Recordings, Inc. v. Lindor

• Decision Date: 30 November 2007
• Docket Number: Civil Action No. CV-05-1095(DGT).
• Citation: 531 F.Supp.2d 453
• Parties: UMG RECORDINGS, INC., et al, Plaintiffs, v. Marie LINDOR, Defendant.
• Court: U.S. District Court — Eastern District of New York

531 F.Supp.2d 453

UMG RECORDINGS, INC., et al, Plaintiffs, v. Marie LINDOR, Defendant.

Civil Action No. CV-05-1095(DGT).

United States District Court, E.D. New York.

November 30, 2007.

Brian Eugene Moran, Robinson & Cole, Stanford, CT, Richard L. Gabriel, Holme Roberts & Owen LLP, Denver, CO, Richard J. Guida, Robinson & Cole LLP, New York, NY, for Plaintiffs.

Marie C. Lindor, do Woody A. Raymond, Brooklyn, NY, pro se.

Morlan Ty Rogers, Ray Beckerman, Lisa Jean Borodkin, Vandenberg & Feliu LLP, New York, NY, for Defendant.

MEMORANDUM AND ORDER

TRAGER, District Judge.

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 WL 1435395, *1, 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 WL 576284, *1, 2007 U.S. Dist. LEXIS 11626, at *2 (E.D.Pa. February 16, 2007); see also MGM Studios, Inc., et al. v. Grokster, Ltd., 545 U.S. 913, 125 S.Ct. 2764, 162 L.Ed.2d 781 (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 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 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 WL 1435395, *1, 2007 U.S. Dist. LEXIS 35824, at *2-4 (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 network; (2) over 700 files were found on a computer using the KaZaA user id. "jrlindor@Ka ZaA"; (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 down-loaded 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 WL 3196956, **2-3, 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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

Under Rule 702, district courts function as gatekeepers, "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, 113 S.Ct. 2786; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (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, 113 S.Ct. 2786.

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, 119 S.Ct. 1167 ("[N]o one denies that an expert might draw a conclusion from a get of observations based on extensive and specialized experience.").

As the Second Circuit has noted, district courts should presume expert evidence is reliable. Borawick v. Shay, 68 F.3d 597, 619 (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, 113 S.Ct. 2786).

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 other, wise 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-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...