Cambridge University Press et al v. Patton et al

Filing 314

RESPONSE re 313 MOTION for Leave to File Motion In Limine To Prevent Plaintiffs From Introducing Improper Expert Testimony filed by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Rains, John)

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, OXFORD UNIVERSITY PRESS, INC., and SAGE PUBLICATIONS, INC., Civil Action No. 1:08-CV-1425-ODE Plaintiffs, -vMARK P. BECKER, in his official capacity as Georgia State University President, et. al., Defendants. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO FILE A MOTION IN LIMINE TO PREVENT PLAINTIFFS FROM INTRODUCING IMPROPER EXPERT TESTIMONY At 9:26 p.m. on May 14, the Saturday night before trial, Defendants sought leave to file an untimely motion in limine. The premise offered for this extraordinary relief is the false suggestion that Plaintiffs’ trial brief (filed on April 29) and their opposition to another motion in limine (filed May 9) revealed for the first time that Plaintiffs “planned to present evidence on the issue of market harm.” Defs.’ Mot., Docket No. 313 at 1. The unjustifiable timing of the motion is hardly 879316.1   counterbalanced by its merit, of which there is none. Without even the pretense of legal support, Defendants assert incorrectly that proof of market harm requires expert testimony and that Plaintiffs’ lay witnesses should be precluded from testifying as to the adverse impact on their businesses of the ongoing infringement at GSU. Because Defendants’ motion is both untimely and baseless, it should be denied. ARGUMENT AND CITATION OF AUTHORITY I. PLAINTIFFS TIMELY DISCLOSED THE EVIDENCE OF MARKET HARM THEY INTEND TO INTRODUCE AT TRIAL Last December, Plaintiffs supplemented their responses to several of Defendants’ interrogatories pursuant to the Court’s November 5, 2010 Order. In those supplemental responses, Plaintiffs disclosed the evidence they intended to offer at trial on the issue of market harm. For example, in response to Defendants’ Interrogatory No. 15, which asked Plaintiffs to identify “the amount of harm in U.S. dollars that the markets or potential market for Plaintiffs’ Copyrights have suffered as a result of the posting of excerpts of works covered by Plaintiffs’ Copyrights on ERes, uLearn, and/or course and faculty websites at GSU from April 2005 to the present,” Plaintiffs identified all four of the witnesses Plaintiffs will call at trial (Frank Smith, Niko Pfund, Carol Richman, and Tracey Armstrong), and they directed Defendants to summary judgment declarations filed 879316.1   2  by knowledgeable employees of each Plaintiff as illustrative of the market harm testimony those witnesses would offer at trial. Plaintiffs’ Supplemental Responses and Objections to Defendants’ First and Second Set of Interrogatories to Plaintiffs at No. 15, attached hereto as Exhibit A. Plaintiffs also referenced the portions of several of their previous submissions, including Plaintiffs’ extensive summary judgment briefing, that explained in detail the legal and factual basis for Plaintiffs’ contention that the ongoing, systematic copyright infringement at GSU is harming the market for their works. Id. Further, in response to another of Defendants’ interrogatories, Plaintiffs identified numerous specific documents of the sort they will introduce at trial to show market harm, including financial information about each Plaintiff and licensing and permissions data for the specific works at issue in this case. Id. at No. 17. Those documents, and others, are included on Plaintiffs’ trial exhibit list, and to the extent Defendants wished to object to them (or to file a motion in limine as to them), they had ample opportunity to do so. In short, Defendants’ eleventh-hour assertion that they were surprised by Plaintiffs’ decision not to rely solely on the testimony of Debra Mariniello to show market harm is not credible. Because Plaintiffs thoroughly briefed the issue at the summary judgment stage, Defendants have known for well over a year the legal 879316.1   3  basis for Plaintiffs’ market harm arguments, and through Plaintiffs’ supplemental interrogatory responses, Defendants have had the names of the potential fact witnesses Plaintiffs could call on this issue for over six months. Defendants’ motion is therefore untimely. It would, if granted, severely prejudice Plaintiffs’ ability to present their case beginning on Tuesday, and on that basis alone it should be denied. II. EXPERT TESTIMONY IS NOT REQUIRED TO SHOW MARKET HARM Defendants’ proposed motion also fails on the merits. Defendants do not cite any authority for the proposition that copyright market harm must be established through an expert witness. In fact, as Plaintiffs explained in their opposition brief to Defendants’ Motion to Exclude Debra J. Mariniello as an Expert, courts routinely find copyright market harm without expert testimony. Plaintiffs’ Brief in Opposition to Defendants’ Motion to Exclude Debra J. Mariniello as an Expert, Docket No. 135 at 16-20. All Plaintiffs are required to show to establish market harm is that “the effect of [Defendants’] use upon the potential market for or value of the copyrighted work,” 17 U.S.C. § 107(4) (emphasis added) – i.e., “whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a 879316.1   4  substantially adverse impact on the potential market.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (internal quotation marks omitted). Plaintiffs intend to make this showing at trial by offering testimony from three (non-expert) Plaintiff witnesses intimately familiar with their businesses and the academic market to establish the adverse impact that a continuation and proliferation nationally of GSU’s practices would have on the viability of Plaintiffs’ businesses. Plaintiffs also intend to offer testimony from the CEO of the Copyright Clearance Center, who will establish, among other things, that there is a viable and efficient permissions market for the works of publishers, including Plaintiffs, authorizing the very sorts of copying activities that are involved in this lawsuit. There is ample precedent for evaluating copyright market harm without expert testimony. For example, in its analysis of fair use factor four, the Sixth Circuit in Princeton University Press v. Michigan Document Servs., Inc., 99 F.3d 1381 (6th Cir. 1996), found that “most of the copyshops that compete with [defendant] in the sale of coursepacks pay permission fees for the privilege of duplicating and selling excerpts from copyrighted works”; that “[t]he three plaintiffs together have been collecting permission fees at a rate approaching $500,000 a year”; and that “[i]f copyshops across the nation were to start doing 879316.1   5  what the defendants have been doing here, this revenue stream would shrivel and the potential value of the copyrighted works of scholarship published by the plaintiffs would be diminished accordingly.” Princeton Univ. Press, 99 F.3d at 1387 (emphasis added). The court did not require expert testimony to reach that straightforward, commonsense conclusion concerning likely market harm. Similarly, in American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1995), the Second Circuit pointed to the existence of “a viable market” for licensing the rights to the journal articles in question; found it “appropriate that potential licensing revenues for photocopying be considered in a fair use analysis”; and affirmed the district court’s conclusion that the plaintiff publishers’ revenues would “increase significantly” if Texaco’s fair use defense were rejected and Texaco were required to pay for the right to reproduce the plaintiffs’ articles. 60 F.3d at 929-30. No expert testimony was deemed necessary. This Court should reach a similar conclusion after trial based on non-expert testimony and documentary evidence that will provide the Court with ample grounds for making the necessary findings of market harm to reject Defendants’ fair use defense and to award Plaintiffs injunctive relief. 879316.1   6  CONCLUSION Because Plaintiffs timely disclosed the witnesses and evidence on which they intend to rely to show market harm, and because there is no requirement that copyright market harm be established through expert testimony, Plaintiffs respectfully request that this Court deny Defendants’ motion for leave to file an untimely motion in limine. Respectfully submitted this 16th day of May, 2011. /s/ John H. Rains IV Edward B. Krugman Georgia Bar No. 429927 John H. Rains IV Georgia Bar No. 556052 BONDURANT, MIXSON & ELMORE, LLP 1201 West Peachtree Street NW Suite 3900 Atlanta, Georgia 30309 (404) 881-4100 R. Bruce Rich (pro hac vice) Randi Singer (pro hac vice) Jonathan Bloom (pro hac vice) Todd D. Larson (pro hac vice) WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Attorneys for Plaintiffs 879316.1   7  CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(D), I hereby certify that this document complies with the font and point selections set forth in Local Rule 5.1. This document was prepared in Times New Roman 14 point font. /s/ John H. Rains IV John H. Rains IV 879316.1   8  CERTIFICATE OF SERVICE I hereby certify that I have this day filed the foregoing PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR LEAVE TO FILE A MOTION IN LIMINE TO PREVENT PLAINTIFFS FROM INTRODUCING IMPROPER EXPERT TESTIMONY with the Clerk of Court using the CM/ECF filing system which will send e-mail notification of such filing to opposing counsel as follows: Stephen M. Schaetzel, Esq. John W. Harbin, Esq. Natasha H. Moffitt, Esq. Kristen A. Swift, Esq. C. Suzanne Johnson, Esq. Mary Katherine Bates, Esq. KING & SPALDING 1180 Peachtree Street Atlanta, Georgia 30309 Katrina M. Quicker, Esq. Richard W. Miller, Esq. BALLARD SPAHR, LLP 999 Peachtree Street, Suite 1000 Atlanta, Georgia 30309 Anthony B. Askew, Esq. MCKEON, MEUNIER, CARLIN & CURFMAN, LLC 817 W. Peachtree Street, Suite 900 Atlanta, Georgia 30308 879316.1   9  Mary Jo Volkert, Esq. Assistant State Attorney General 40 Capitol Square Atlanta, Georgia 30334 This 16th day of May, 2011. /s/ John H. Rains IV John H. Rains IV 879316.1   10  EXHIBIT A BONDURANT, MIXSON & ELMORE, LLP ATTORNEYS AT LAW 3900 ONE ATLANTIC CENTER 1201 WEST PEACHTREE STREET, N.W. ATLANTA, GEORGIA 30309·3417 (404) 881-4100 TELECOPIER (404) 881-4111 JOHN H. RAINS IV WRITER'S DIRECT DIAL NUMBER (404) 881-4128 RAINS@BMELAW.COM December 10,2010 VIA HAND DELIVERY Stephen M. Schaetzel, Esq. King & Spalding LLP 1180 Peachtree Street NE Atlanta, GA 30309-3521 Re: Cambridge University Press, et al. v. Mark P. Becker, et al. United States District Court, Northern District of Georgia Civil Action File No. 1:08-CV-1425-0DE Dear Steve: Pursuant to the terms of the November 5, 2010 Scheduling Order in the above-referenced case and the parties' agreements concerning supplemental discovery, enclosed please find documents bearing the following Bates ranges: CUPXOOOOOl -289, OUPXOOOOOl - 1134, SAGEXOOOOO 1 - 1089. This production is comprised of both electronic and paper documents. Also in enclosed are Plaintiff's Supplemental Interrogatory Responses. Please let me know if you have any questions. jlh