Arista Records LLC et al v. Lime Wire LLC et al
OPINION AND ORDER: #100284 For the foregoing reasons, Plaintiffs motion to preclude portions of the testimony of Emin Gun Sirer, George Strong and Aram Sinnreich (Dkt. Entry No. 572) are DENIED in part and GRANTED in part. As to certain specific matters arising under Rule 403 of the Federal Rules of Evidence, the Court reserves judgment. (Signed by Judge Kimba M. Wood on 4/29/2011) (jfe) Modified on 5/6/2011 (ajc).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARISTA RECORDS LLC; ATLANTIC RECORDING
CORPORATION; ARISTA MUSIC, fka BMG
MUSIC; CAPITOL RECORDS, INC; ELEKTRA
ENTERTAINMENT GROUP INC; INTERSCOPE
RECORDS; LAFACE RECORDS LLC; MOTOWN
RECORD COMPANY, L.P.; PRIORITY RECORDS
LLC; SONY MUSIC ENTERTAINMENT, fka SONY
BMG MUSIC ENTERTAINMENT; UMG RECORDINGS,
INC; VIRGIN RECORDS AMERICA, INC.; and
WARNER BROS. RECORDS INC.,
06 CV 5936 (KMW)
OPINION AND ORDER
-againstLIME GROUP LLC; LIME WIRE LLC; MARK
GORTON; GREG BILDSON; and M.J.G. LIME WIRE
FAMILY LIMITED PARTNERSHIP,
KIMBA M. WOOD, U.S.D.J.:
On May 11, 2010, this Court granted summary judgment in favor of Plaintiffs on their
claims against Defendants LimeWire LLC (“LW”), Lime Group LLC (“Lime Group”), and Mark
Gorton (collectively, “Defendants”) for secondary copyright infringement. The Court found that
Defendants had induced multiple users of the LimeWire online file-sharing program
(“LimeWire”) to infringe Plaintiffs’ copyrights. In the Court’s Opinion and Order (as amended
on May 25, 2010), the Court detailed this case’s procedural and factual background, familiarity
with which is assumed. (See Dkt. Entry No. 223; Arista Records LLC v. Lime Group LLC, 715 F
Supp. 2d 481, 507 (S.D.N.Y. 2010).) The litigation is now in the damage phase, with a trial on
damages scheduled for May 2, 2011.
Defendants have designated three witnesses to offer expert testimony on different aspects
of the damage proceedings: Professor Emin Gün Sirer, George Strong, and Professor Aram
Sinnreich. Plaintiffs have moved to preclude certain portions of the testimony of each of these
witnesses under Rule 702 of the Federal Rules of Evidence. (Dkt. Entry No. 572.) As set forth
in more detail below, Plaintiffs’ motions are GRANTED in part, and DENIED in part.
The Supreme Court has assigned to district courts a “gatekeeping” role with respect to
expert opinion testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993)
(holding that it is the district court’s responsibility to ensure that “any and all scientific testimony
or evidence admitted is not only relevant, but reliable”). This “gatekeeping” function applies
whether the expert testimony is based on scientific, or on technical or “other specialized”
knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). “It is wellestablished that the trial judge has broad discretion in the matter of the admission or exclusion of
expert evidence.” Boucher v. United Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (citation
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of
Evidence, which 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. A court’s inquiry thus focuses on three issues: (1) whether the witness is
qualified to be an expert; (2) whether the opinion is based upon reliable data and methodology;
and (3) whether the expert’s testimony on a particular issue will assist the trier of fact. Nimely v.
City of New York, 414 F.3d 381, 396-97 (2d Cir. 2005). The party seeking to rely on expert
testimony bears the burden of establishing, by a preponderance of the evidence, that all
requirements have been met. See Daubert, 509 U.S. at 593 n.10; United States v. Williams, 506
F.3d 151, 160 (2d Cir. 2007).
(a) Qualification of an Expert
Whether a purported expert witness is qualified as such by his or her “knowledge, skill,
experience, training or education,” Fed. R. Evid. 702, is a “threshold question” to be resolved
prior to the other inquiries. Nimely, 414 F.3d at 396 n.11. See Haimdas v. Haimdas, 09 Civ.
2034, 2010 WL 652823, at *2 (E.D.N.Y. Feb. 22, 2010) (stating that “where an expert witness is
insufficiently qualified, an analysis of the remaining factors ‘seems almost superfluous’”
(quoting Zaremba v. Gen. Motors Corp., 360 F.3d 355, 360 (2d Cir. 2004)). The Second Circuit
has explained that this question is particularly important “because an ‘expert’ witness is
permitted substantially more leeway than ‘lay’ witnesses in testifying as to opinions that are not
‘rationally based on [his or her] perception.’” Nimely, 414 F.3d at 396 n.11 (quoting United
States v. Garcia, 291 F.3d 127, 139 & n. 8 (2d Cir.2002)).
In order to determine whether a witness is qualified to render an expert opinion, a court
“must first ascertain whether the proffered expert has the educational background or training in a
relevant field,” Cary Oil Co., Inc. v. MG Refining & Marketing, Inc., No. 99 Civ. 1725, 2003
WL 1878246, at *2 (S.D.N.Y. Apr. 11, 2003) (citation omitted), by looking at the “totality of
[the] witness’s background.” Arista Records LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 422
(S.D.N.Y. 2009) (citation omitted). A witness may be qualified based on any one or more of the
qualities listed in Rule 702 – knowledge, skill, experience, training or education. Tiffany (NJ)
Inc. v. eBay, Inc., 576 F. Supp. 2d 457, 458 (S.D.N.Y. 2007) (citing 4 Jack B. Weinstein,
Weinstein’s Federal Evidence § 702.04[c] (2d ed. 2006)).
The court must then “compare the area in which the witness has superior knowledge,
education, experience, or skill with the subject matter of the proffered testimony.” United States
v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004). The court must ensure that the expert will
actually be testifying “on issues or subject matter[s] within his or her area of expertise.”
Haimdas, 2010 WL 652823, at *2 (citing Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 80 (2d Cir.
1997)). “[A]n expert who is qualified in one field cannot offer an opinion about aspects of the
case in another field for which she is not qualified.” In re Methyl Tertiary Butyl Ether
(“MTBE”) Products Liability Litigation, MDL No. 1358, M21-88, 2008 WL 1971538, at *6
n.48 (S.D.N.Y. May 7, 2008). See also Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d
558, 642 (S.D.N.Y. 2007) (“An expert qualified in one subject matter does not thereby become
an expert for all purposes. Testimony on subject matters unrelated to the witness’s area of
expertise is prohibited by Rule 702.”).
“Courts within the Second Circuit ‘have liberally construed expert qualification
requirements’ when determining if a witness can be considered an expert.” Cary Oil, 2003 WL
1878246, at *1 (quoting TC Sys. Inc. v. Town of Colonie, New York, 213 F.Supp.2d 171, 174
(N.D.N.Y. 2002)). See also United States v. Brown, 776 F.2d 397, 400 (2d Cir. 1985)
(qualification requirements of Rule 702 “must be read in light of the liberalizing purpose of the
rule”); In re Zyprexa Prods. Liab. Litig., 489 F. Supp. 2d 230, 282 (E.D.N.Y. 2007) (“In keeping
with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the
traditional barriers to ‘opinion’ testimony,’ the standard for qualifying expert witnesses is
liberal.” (quoting Daubert, 509 U.S. at 588-89) (internal citation omitted)); In re Rezulin Prods.
Liab. Litig., 309 F. Supp. 2d 531, 559 (S.D.N.Y. 2004) (“The Second Circuit has taken a liberal
view of the qualification requirements of Rule 702, at least to the extent that a lack of formal
training does not necessarily disqualify an expert from testifying if he or she has equivalent
relevant practical experience.”).
In light of the “liberal thrust” of the Rules, Daubert, 509 U.S. at 588, courts in this circuit
have noted that an expert “should not be required to satisfy an overly narrow test of his own
qualifications.” Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., No. 04 Civ. 7369,
2006 WL 2128785, at *6 (S.D.N.Y. July 28, 2006) (citation and quotation marks omitted). “If
the expert has educational and experiential qualifications in a general field closely related to the
subject matter in question, the court will not exclude the testimony solely on the ground that the
witness lacks expertise in the specialized areas that are directly pertinent.” In re Zyprexa, 489 F.
Supp. 2d at 282 (citing Stagl, 117 F.3d at 80). See also Johnson and Johnson, 2006 WL
2128785, at *5 (“In considering a witness’s practical experience and educational background as
criteria for qualification, the only matter the court should be concerned with is whether the
expert’s knowledge of the subject is such that his opinion will likely assist the trier of fact in
arriving at the truth.” (citation omitted)); Sullivan v. Ford Motor Co., No. 97 Civ. 593, 2000 WL
343777, at *4 (S.D.N.Y. Mar. 31, 2000) (“One knowledgeable about a particular subject need
not be precisely informed about all details of the issues raised in order to offer an opinion.”
(quoting Thomas J. Kline, Inc. v. Lorillard, Inc., 8178 F.2d 791, 799 (4th Cir. 1989))).
“Quibble[s] with an expert’s academic training” go to the “testimony’s weight . . . not its
admissibility,” and are an appropriate subject for cross-examination. United States v. Joseph,
542 F.3d 13, 21-22 (2d Cir. 2008) (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038,
1043 (2d Cir. 1995)).
(b) Reliability of Expert Testimony
Once a court has determined that a witness is qualified as an expert, it must ensure that
the witness is proposing to testify to knowledge that both “rests on a reliable foundation and is
relevant to the task at hand.” Daubert, 509 U.S. at 597. “As the Second Circuit has noted,
district courts should presume expert evidence is reliable.” UMG Recordings, Inc. v. Lindor, 531
F. Supp. 2d 453, 456 (E.D.N.Y. 2007) (citing Borawick v. Shay, 68 F.3d 597, 610 (2d Cir.1995)).
In assessing the reliability of an expert’s proposed testimony, the Court’s focus “must be solely
on principles and methodology, not on the conclusions they generate.” Daubert, 509 U.S. at
595; Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002).1 Courts have
held that claims “that the assumptions relied on by an expert are unfounded is generally an
argument that goes to the weight rather than the admissibility of the evidence.” MacQuesten
General Contracting, Inc. v. HCE, Inc., 99 Civ. 8598, 2002 WL 31388716, at *2 (S.D.N.Y. Oct.
22, 2002) (citing Boucher, 73 F.3d at 21). See also Johnson & Johnson, 2006 WL 2128785, at
*7 (“As long as the expert uses reliable methods to reach his conclusion, ‘lack of textual support
In Daubert, the Supreme Court identified factors that may bear upon the reliability of proposed
scientific testimony, including: (1) whether the theory or technique can be, and has been, tested;
(2) whether it has been subjected to peer review and publication; (3) the known or potential error
rate of the technique; (4) the existence and maintenance of standards controlling the technique’s
operation; and (5) whether the technique or theory has gained widespread acceptance in the
relevant scientific community. Daubert, 509 U.S. at 593-94 (noting that these factors do not
constitute “a definitive checklist or test”). In Kumho, the Supreme Court held that a court may
apply the Daubert factors, as appropriate, in cases dealing with technical or “other specialized,”
but non-scientific testimony. 526 U.S. at 141.
should go to the weight of the evidence, not its admissibility.’” (quoting Amorgianos, 303 F.3d at
267)). As the Supreme Court stated, “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
At the same time, under the court’s “gatekeeping” function, the court must “make certain
that an expert, whether basing testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Kumho, 526 U.S. at 152. “Subjective methodology, as well as
testimony that is insufficiently connected to the facts of the case” can serve as “grounds for
rejection of expert testimony.” In re Zyprexa, 489 F. Supp. 2d at 284. The Supreme Court has
stressed that “nothing in either Daubert or the Federal Rules of Evidence requires a district court
to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.
A court may conclude that there is simply too great an analytical gap between the data and the
opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). See also Major League
Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (holding that expert
testimony should be excluded when it is “speculative or conjectural” (quoting Boucher, 73 F.3d
at 21)). Thus, “when an expert opinion is based on data, a methodology, or studies that are
simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the
exclusion of that unreliable opinion testimony.” Amorgianos, 303 F.3d at 266.
(c) Helpfulness / Relevance of Testimony
Finally, the Court must determine that the expert testimony “will assist the trier of fact to
understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. This inquiry
essentially looks to whether the testimony is relevant. See In re Zyprexa, 489 F. Supp. 2d at 283.
Under the Federal Rules of Evidence, evidence is relevant if it has a “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.” Fed. R. Evid. 401; see also Daubert, 509
U.S. at 591-92 (“Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the
pertinent inquiry as a precondition to admissibility”). A court should not admit expert testimony
that is “directed solely to lay matters which a jury is capable of understanding and deciding
without the expert’s help.” United States v. Mulder, 273 F.3d 91, 104 (2d Cir. 2001) (quoting
United States v. Castillo, 924 F.2d 1227, 1232 (2d Cir. 1991)).
Expert testimony must also adhere to the other Federal Rules of Evidence, including Rule
403, which provides that relevant evidence may still be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Fed. R. Evid. 403. The Rule 403 inquiry is particularly important in the
context of expert testimony, “given the unique weight such evidence may have in a jury’s
deliberations.” Nimely, 414 F.3d at 397. See Daubert, 509 U.S. at 595 (“‘Expert evidence can
be both powerful and quite misleading because of the difficulty in evaluating it. Because of this
risk, the judge in weighing possible prejudice against probative force under Rule 403 of the
present rules exercises more control over experts than over lay witnesses.’” (quoting Jack B.
Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138
F.R.D. 631, 632 (1991))).
Emin Gün Sirer
Defendants offer Professor Emin Gün Sirer as an expert in technology and computer
science. Professor Sirer is an Associate Professor of Computer Science at Cornell University.
He holds a Ph.D in Computer Science and Engineering from the University of Washington, and a
Bachelor of Science in Engineering from the Computer Science Department of Princeton
University. A review of Professor Sirer’s curriculum vitae shows that he has published papers
and lectured widely on a broad range of topics relating to computer systems, and peer-to-peer
systems in particular. (See Klaus Dec. in Support of Pl’s. Mot. to Preclude Certain Purported
Expert Testimony by Emin Gün Sirer (hereinafter “Klaus Dec. (Sirer)”), Ex. 4, Expert Report of
Emin Gün Sirer (hereinafter “Sirer Report”), Ex. A.)
Plaintiffs do not dispute Professor Sirer’s technological expertise. (See Pl. Mem. of Law
in Support of Mot. to Preclude Certain Expert Testimony by George Strong (hereinafter “Pl.
Mem. (Strong)”) at 8 (describing Professor Sirer as a “technical expert”).) Instead, Plaintiffs
challenge the admissibility of Professor Sirer’s opinions regarding the statistical conclusions of
Plaintiffs’ purported statistics expert, Dr. Richard Waterman, concerning the total number of
infringements on LimeWire of Plaintiffs’ works at issue. Specifically, Plaintiffs argue that
Professor Sirer has insufficient expertise in statistics and statistical methodologies to offer an
opinion admissible under Rule 702, and that, in any event, his opinions are insufficiently reliable.
For the following reasons, the Court GRANTS in part and DENIES in part Plaintiffs’ motion.
Plaintiffs point out that, unlike Dr. Waterman, Professor Sirer does not have a degree in
statistics, does not teach statistics, has never published articles on statistics, and, in fact, has
never taken a class in a statistics department or one where statistics was the primary focus of the
class. Although Professor Sirer claimed to use statistical methods in his computer science work,
at his deposition, he was unable to provide specifics about the particular statistical methodologies
he has used. He was also unwilling (if not unable) to answer basic questions about statistical
principles at his deposition. (See Klaus Dec. (Sirer), Ex. 5, Deposition Transcript of Emin Gün
Sirer (hereinafter “Sirer Dep.”) at 224:13-226:16.) Plaintiffs also argue that, to whatever extent
Professor Sirer has experience working with statistics, he has never performed statistical
analyses or surveys of human populations.
The Court agrees that Professor Sirer is not qualified to offer an expert opinion about
statistics or surveying issues. See Zaremba, 360 F.3d at 359-60 (affirming exclusion of
purported expert who had only a bachelor’s degree in engineering, finding that purported expert
had “meager qualifications to offer . . . opinions as to automobile design”); Haimdas, 2010 WL
6852823, at *2-3 (excluding testimony of family therapist offered to rebut testimony of
psychologist regarding psychological analysis of children because psychology and family
therapy are different disciplines). Professor Sirer has no doubt employed statistics to some
degree in his studies and work, “as most people do to one extent or another.” Malletier, 525
F.Supp.2d at 642 (precluding testimony on probabilities by expert in colorimetry because his
expertise in colorimetry “[did] not establish his expertise as a statistician”). However,
Defendants have not demonstrated that Professor Sirer possesses sufficient “knowledge, skill,
experience, training, or education” to provide testimony on statistical issues that will “assist the
trier of fact.” Fed. R. Evid. 702. Cf. Malletier, 525 F. Supp. 2d at 642 (noting that the plaintiff
“certainly had the opportunity to retain an expert to interpret the statistical probabilities [at issue]
but it did not do so”)
Defendants argue that Professor Sirer’s criticisms of Dr. Waterman’s study do not depend
upon sophisticated knowledge of statistics. This is contradicted by the substance of his
criticisms, which focus on technical matters of statistical analysis and surveying techniques. In
any event, to the extent that Professor Sirer’s opinions do not depend upon any statistics or
surveying expertise, they are not appropriate matters for expert testimony. See Mulder, 273 F.3d
at 102 (precluding testimony “directed solely to lay matters which a jury is capable of
understanding and deciding without the expert’s help”); see also In re Zyprexa, 489 F. Supp. 2d
at 283 (“Expert testimony should not merely reiterate arguments based on inferences that can be
drawn by laypersons . . . .”). For these reasons, any of Professor Sirer’s testimony that depends
upon expertise in statistics is precluded.
Specifically, Professor Sirer is not qualified to offer expert opinions regarding
demographics, population sampling methods, or statistical weighing with regard to the data from
the market research firm, the NPD Group, from which Dr. Waterman extrapolated; or the
validity of the statistical models Dr. Waterman used to reach his conclusions.2 These types of
opinions are dependent upon expertise in human surveying and statistics methodologies in which
Professor Sirer has no experience or training.
This does not mean that Professor Sirer is precluded from testifying at all, nor does it
mean that Professor Sirer may not criticize “Dr. Waterman’s statistical conclusions concerning
the total number of infringements on LimeWire of Plaintiffs’ works at issue.” (Pl. Mem. of Law
in Support of Mot. to Preclude Certain Expert Testimony by Emin Gün Sirer (hereinafter “Pl.
Mem. (Sirer)”) at 21.) On the contrary, Dr. Waterman’s conclusions, though ultimately arrived
at through statistical analysis, are dependent upon several underlying assumptions about
technological issues that are well within the scope of Professor Sirer’s expertise.
Indeed, Professor Sirer had no working familiarity with the particular statistical technique – the
smoothing spline– used by Dr. Waterman to perform his extrapolations.
Given his broad experience with computer science in general, and peer-to-peer systems in
particular, Professor Sirer is qualified to offer an opinion that one must take into account the
presence of spoof files, viruses, and other “junk” files, in calculating the number of
infringements taking place on a particular system. Similarly, Professor Sirer is qualified to
provide an expert opinion that it is possible to independently create multiple versions of a sound
file with the same “hash” value. He is also able to offer expertise on the computer science
aspects of Dr. Waterman’s methodology, such as the criticisms that Dr. Waterman’s “data
processing tools performed erroneous operations.” (Sirer Report at 17.) To the extent that
Plaintiffs believe that Professor Sirer is not sufficiently familiar with statistics methodologies to
offer even these opinions on technological issues, they are free to elicit this through crossexamination. See Cary Oil Co., 2003 WL 1878246, at *3 (“The fact that a witness’s
qualifications are not unassailable does not mean the witness is incompetent to testify; rather it is
for the jury, with the assistance of vigorous cross-examination, to measure the worth of the
opinions.” (quoting Valentin v. New York City, No. 94 Civ. 3911, 1997 WL 33323099, at *15
(E.D.N.Y. Sept. 9, 1997)).3
Plaintiffs argue further that, even if Professor Sirer is qualified as an expert, his opinions
are unreliable because they are “speculative or conjectural.” (Pl. Mem. (Sirer) at 19 (citing
Major League Baseball Props., 542 F.3d at 311).) The Court disagrees. Plaintiffs argue that, for
example, Professor Sirer has no empirical basis to assert that there were substantial numbers of
“junk” files on the LimeWire system. However, Professor Sirer does have a basis, from his
Because the Court finds that Professor Sirer is not qualified as an expert to offer expert
opinions on statistics issues, it is unnecessary to reach Plaintiffs’ arguments regarding the
reliability of those opinions.
experience with peer-to-peer systems alone, to offer an expert opinion on this issue. See In re
MTBE, 2008 WL 1971538, at *8 (“A non-scientific expert may rely on experience to assess
facts.”); see also Advisory Committee Notes, 2000 Amendments, Fed. R. Evid. 702 (“In certain
fields, experience is the predominant, if not sole, basis for a great deal of reliable expert
testimony.”). Arguments about the assumptions and data underlying an expert’s testimony go to
the weight, rather than the admissibility, of that testimony. MacQuesten, 2002 WL 31388716, at
*2. See also Amorgianos, 303 F.3d at 266 (holding that lack of textual support for expert’s
opinion goes to weight of testimony rather than admissibility (citing McCullock, 61 F.3d at
1044)). Moreover, as other courts have recognized, a defendant’s experts often “have a less
demanding task, since they have no burden to produce models or methods of their own; they
need only attack those of plaintiffs’ experts.” In re Zyprexa, 489 F. Supp. 2d at 285.
Thus, Professor Sirer will be permitted to testify about technological matters within his
area of expertise, even if his testimony implicates Plaintiffs’ statistical conclusions. However, he
will not be permitted to testify about purely statistical issues that do not fall within his experience
and expertise. To the extent that issues as to specific statements arise during trial, the Court will
make further Daubert and/or Rule 403 rulings as necessary.4
Plaintiffs also suggest that Professor Sirer cannot be qualified because he is biased towards
Defendants to the point that he is merely a “partisan.” (Pl. Mem. at 18 (citing Caccioloa v. Selco
Balers, Inc., 127 F. Supp. 2d 175, 184 (E.D.N.Y. 2001) (“When expert witnesses become
partisans objectivity is sacrificed to the need to win.”)).) The Court disagrees. Although
Professor Sirer’s work makes clear that he does not share Plaintiffs’ views about the interaction
between copyright law and internet communities, he is not so biased as to render his testimony
fundamentally unreliable. More importantly, “many witnesses are biased to some degree, and
lack of bias is not required for expert testimony to be admissible.” In re MTBE, 2008 WL
1971538, at *13 (citation omitted). Professor Sirer’s opinions fall far short of the degree of
personal interest required to exclude an expert witness on grounds of bias. Cf. Tedone v. H.J.
Heinz Co., 686 F. Supp. 2d 300, 311 (S.D.N.Y. 2009) (allowing testimony from expert who had
Plaintiff’s also move to exclude portions of the testimony of Defendants’ purported
damages expert, George Strong.
Mr. Strong is employed by Cornerstone Research, Inc., and has testified in over 100
cases, primarily on issues regarding the calculation of damages. He is a CPA and a Certified
Management Consultant with a degree in economics from Yale and an MBA from Harvard. He
is accredited in business valuation and financial forecasts by the American Institute of Certified
Professional Accountants. (See LeMoine Dec. in Support of Mot. to Preclude Certain Purported
Expert Testimony by George Strong (hereinafter “LeMoine Dec.”), Ex. 2, Expert Report of
George Strong (hereinafter “Strong Report”), Ex. A.) Defendants have retained Mr. Strong as a
purported expert to calculate the appropriate level of damages in this case.
Plaintiffs move to exclude three broad areas of Mr. Strong’s proposed testimony:
1) His testimony criticizing the conclusions of Plaintiffs’ expert, Richard Waterman,
concerning the volume of infringements on the LimeWire system;
2) His testimony regarding the music industry, and the degree to which LimeWire did or
did not cause the decline in Plaintiffs’ profits;
3) His testimony applying a “hypothetical negotiation” framework to analyze the
“expenses saved” by LimeWire because of its infringing conduct. Bryant v. Media Right Prods.,
Inc., 603 F.3d 135, 144 (2d Cir. 2010).
For the reasons set forth herein, Plaintiffs’ motion is GRANTED in part and DENIED in
been employed by defendant for 31 years, and holding that issue of bias is an issue more
appropriate for cross-examination).
Criticism of Dr. Waterman’s Testimony Regarding Number of
Mr. Strong makes many of the same criticisms of Dr. Waterman’s conclusions, and the
assumptions and methodologies underlying those conclusions, as does Professor Sirer. (See
supra Section III.A). Plaintiffs move to exclude this testimony for many of the same reasons as
they moved to exclude Professor Sirer’s testimony on this issue. However, the record
demonstrates that, unlike Professor Sirer, Mr. Strong does have sufficient experience and
expertise with regard to the statistics and survey methodologies at issue here to offer his expert
criticisms of Dr. Waterman’s testimony.
Mr. Strong’s deposition testimony confirms that he has experience and expertise working
with statistics and statistical methods. (Mundiya Dec. in Support of Defs.’ Mem. of Law in
Opposition to Pls.’ Mot. to Preclude Certain Purported Expert Testimony by George Strong, Ex.
B, Transcript of Deposition of George Strong (hereinafter “Strong Dep. (Opp.)”) at 15:3-16:25
(testifying that he has employed regression analyses and other comparable statistical procedures
professionally for over thirty years).) Plaintiffs point out that Mr. Strong does not have any
experience working with the specific statistical method, the “smoothing spline” technique,
employed by Dr. Waterman. Mr. Strong did, however, state that he had experience working with
similar types of regression analysis. (Id.) Given Mr. Strong’s background, the fact that he has
not worked with the smoothing spline technique itself simply goes to the weight, not the
admissibility, of his testimony, and can be brought out through cross examination. Cary Oil,
2003 WL 1878246, at *3.
Mr. Strong also has experience working with, and analyzing, surveys and survey
methodologies. (See Strong Dep. (Opp.) at 26:2-27:23.) To the extent he is not well-versed in
the “technical aspects” of certain survey techniques, this lack of specific familiarity would
similarly go to the weight, not the admissibility, of the testimony. Cary Oil, 2003 WL 1878246,
at *3. He has sufficient experience in the area to render his testimony admissible.
Finally, Plaintiffs’ argument that Mr. Strong lacks sufficient technical expertise to opine
on the potential relevance of “spoof” files on the LimeWire network is misplaced. Mr. Strong’s
opinion in this regard does not depend upon any particular technical knowledge. Rather, he
simply opines that a proper accounting of the number of infringements should take into account
spoof files (the existence of which Plaintiffs do not dispute), at least to some extent. Given his
experience with statistics and survey methodologies, this testimony is within his area of expertise
and is therefore admissible.
Mr. Strong devotes the bulk of his opinion to arguing that the declines in music industry
sales and revenues were not caused by file sharing in general, or by LimeWire in particular. He
opines that this decline can instead be attributed to a confluence of various micro- and macroeconomic factors, including, inter alia, two global recessions, changes in consumer preferences
with regard to digital music, music industry missteps in adapting to technological change, and
increased competition from other forms of personal entertainment. He also opines that file
sharing has not had a negative impact on the music industry, and may have had a positive
impact. Mr. Strong bases his opinion upon his review of “academic literature, market research
data, Plaintiffs’ own financial statements and disclosures, industry reports, and government
studies.” (Defs.’ Mem. of Law in Opposition to Pls.’ Mot. to Preclude Certain Purported Expert
Testimony by George Strong (hereinafter “Def. Opp. (Strong)”) at 12.)
Plaintiffs level a variety of criticisms at Mr. Strong’s testimony on causation. Plaintiffs
argue (1) that Mr. Strong has no expertise in the music industry or technology spheres; (2) that
Mr. Strong’s testimony on causation is unreliable because of his failure to control for file sharing
as a potential cause, by looking at the effect of the other purported causes before and after the
advent of file sharing; (3) that Mr. Strong did not consider other relevant factors, such as the total
decline in Plaintiffs’ revenue and sales, LimeWire’s market share, or file sharing’s impact on
music prices; (4) that Mr. Strong failed to test his theories by analyzing his alternative causes
over time; and (5) that Mr. Strong failed to acknowledge that some of the purported causes of the
U.S. record industry’s decline were far more prevalent in other countries, while also failing to
account for the fact that many purported alternative causes did not affect the recording industries
in other countries, and yet the latter’s revenues also declined. Plaintiffs also argue that his
opinions are not based on “sufficient facts or data,” Fed. R. Evid. 702, because they see no
empirical basis for several of his conclusions. Finally, Plaintiffs argue that Mr. Strong’s
testimony is not helpful to the jury because he does not offer his own analysis or expertise on the
music industry. Instead, he simply summarizes articles and studies performed by others without
offering any opinion on the relative merits of those studies or whether they were accurate.
Although Plaintiffs couch their criticisms in a variety of ways, they all boil down to the
same basic criticism: that Mr. Strong lacks expertise in the relevant areas, and thus, that he is
merely uncritically reporting what others have said, without any independent analysis of his own.
Mr. Strong concedes that he did not have any independent familiarity or expertise with the
specific issues involved in this case prior to his review of the materials he cited in his report.
(See LeMoine Dec. Ex. 1, Transcript of Deposition of George Strong (hereinafter “Strong Dep.
(Mot.)”) 24:25-25:4.) When asked at his deposition whether he was “offering an opinion that
there is a causal relationship between downloading activity through peer-to-peer services and
legal purchases,” he responded, “Well, not per se. I mean, what I’m doing is summarizing what I
have read and what others have said. But I haven’t studied the issue specifically.” (Strong Dep.
(Mot.) at 151:2-11.) When asked if he “purport[s] to offer any opinion as to the relative [merits]
of the studies that . . . analyzed the effect of file sharing on music sales,” he responded, “[I]t’s
not my mission to render a professional opinion on each of these studies. . . . I make no
independent assessment of any of these other studies.” (Strong Dep. (Mot.) at 164:16-165:14.)
(See also Strong Dep. (Mot.) at 124:10-19 (“Q. . . . [W]hat, if anything, did you do to satisfy . . .
yourself that the studies cited in your report are . . . accurate and reliable? A. . . . I did not do
anything to determine the accuracy or validity of these studies.”).)
The Court agrees that, given Mr. Strong’s lack of expertise in the music industry and
technology spheres, and the fact that he appears to rely almost entirely on an uncritical review of
others’ views, much of his testimony on this issue must be excluded. See Loussier v. Universal
Music Group, Inc., 02 Civ. 2447, 2005 WL 5644422, at *3-4 (S.D.N.Y. June 28, 2005)
(excluding expert witness in music industry case where the record indicates that she did not have
any “relevant experience in the music industry”). Specifically, the testimony embodied in
Section VI.C, and Sections VIII – X of his Report are excluded on this basis. It is true that
courts have accepted expert testimony from financial and economic analysts even when those
witnesses lack “industry specific” knowledge. Johnson & Johnson, 2006 WL 2128785, at *6
(allowing testimony from expert with “significant experience in conducting financial and
economic analyses relating to products in the marketplace,” even though he did not have
“specific training in the field of optometry or experience related to the eye care profession”). See
also Regal Cinemas, Inc. v. W & M Props., 90 F. App’x 824, 833 (6th Cir. 2004) (holding that
witness who was “a certified public accountant, a certified business appraiser, a shareholder and
director of litigation support group of an accounting firm, and [who] has offered testimony in at
least fifty court cases,” could testify on lost profits of a movie theater, even though he did not
have any experience in the movie theater industry); TC Sys., 213 F. Supp. 2d at 175 (allowing
expert testimony even though witness had no practical experience in telecommunications
industry because his opinions involved broader economic principles and he was sufficiently
qualified in that field).
Here, however, Mr. Strong does not appear to apply his own economics expertise in
reaching his conclusions on this issue. He appears to have little empirical basis for much of his
testimony beyond the reports that he read, and he does not offer any opinion quantifying the
degree to which any of the causes to which he attributed the music industry’s decline were
responsible for that decline, either individually or in the aggregate. This failure alone would not
necessarily render his testimony about causation inadmissible, so long as he applied some of his
own analysis. See, e.g., UMG Recordings, Inc. v. Sinnott, 300 F. Supp. 2d 993, 1003 n.9 (E.D.
Cal. 2004) (holding that it “is not necessary for the expert to quantify the [impact]; his
characterization of [the impact] as ‘substantial’ is sufficient to make his opinion relevant”). But
here, Mr. Strong’s failure to perform any independent analysis results in an opinion that is only a
summary of what other experts have said, without application of his own expertise. This is not
an appropriate type of expert testimony. See R.F.M.A.S. v. So, No. 06 Civ. 13114, 2010 WL
4341331, at *19 (S.D.N.Y. Oct. 12, 2010) (excluding expert testimony in case involving
infringement of jewelry designs where witnesses “[did] not draw on their areas of actual
expertise in arriving at the[ir] conclusion . . . Any juror could have employed common sense to
perform the same analysis; no background in marketing or experience in the jewelry industry is
necessary.”). Thus, Mr. Strong’s testimony concerning causation contained in sections VIII – X
of his Report must be excluded.
An additional reason this testimony should be excluded is that it is duplicative of the
testimony of Defendants’ music industry expert, Professor Aram Sinnreich. (See infra Section
III.C.) Where expert testimony “substantially overlap[s]” with the testimony of another expert,
courts exclude that testimony. Price v. Fox Entm’t Grp., Inc., 499 F. Supp. 2d 382, 390
(S.D.N.Y. 2007). The Second Circuit has instructed that courts, in considering whether to admit
expert testimony, should consider “whether other experts exist who are more specifically
qualified and who are nonetheless not in the employ of the company or industry whose
practices” are at issue. Stagl, 117 F.3d at 81. As an expert in the music industry, Mr. Sinnreich
is more “specifically qualified” to offer opinions on these issues.
To the extent that Mr. Strong’s opinions about causation are based upon his own
economic analysis or expertise, they are admissible. Thus, for example, Mr. Strong may testify
that “the effect of file sharing on music sales is small,” based on economic principles of sloping
demand curves, product substitution and displacement rates. (See Strong Report, Section VI.A.
,VI.B. and VI.D.) The fact that these conclusions are based, in part, upon a review of surveys
and the relevant literature in the area does not render his testimony inadmissible, as long as Mr.
Strong bases his conclusions on his own expertise and analysis, and as long as those sources are
“of a type reasonably relied upon by experts” in his field.” Fed. R. Evid. 703. See B.F.
Goodrich v. Betkoski, 99 F.3d 505, 524-25 (2d Cir. 1996) (holding that where hazardous
substances expert reviewed studies of particular areas and applied his expertise, testimony should
have been admitted), clarified on other grounds, 112 F.3d 88 (2d Cir. 1997); United States v.
Damrah, 412 F.3d 618, 625 (6th Cir. 2005) (expert testimony based upon review of books, press
releases and newspaper articles about terrorist groups was admissible when expert applied the
“gold standard” methodology in the relevant area). Mr. Strong’s testimony on these points may
assist the trier of fact, and is thus admissible. But Mr. Strong may not testify that file sharing
may have stimulated additional music purchases, when that conclusion is based on nothing more
than quotations from, and citations to, other individuals’ surveys and articles. (See Strong
Report, Section VI.C.)
Although Mr. Strong’s opinions in Section VI.A, B and D are admissible as expert
opinion testimony, this does not mean that all of the statements upon which he relies may be
disclosed to the jury. Under Rule 703 of the Federal Rules of Evidence, “[f]acts or data that are
otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion . . .
unless the court determines that their probative value in assisting the jury to evaluate the expert’s
opinion substantially outweighs their prejudicial effect.” Fed. R. Evid. 703. The Court reserves
judgment on whether all of the specific facts, data and statements upon which Mr. Strong relies
meet this test.
Mr. Strong opines on LimeWire’s “expenses saved” based upon a “hypothetical
negotiation” for a legal license to exploit the works at issue between LimeWire and the Plaintiffs.
Plaintiffs move to exclude this testimony not on the basis that Mr. Strong lacks expertise to
perform this type of analysis, but rather that his analysis misconstrues the law and is based upon
unrealistic factual predicates.
Mr. Strong’s testimony attempts to arrive at a range for “the expenses saved, and profits
earned, by the infringer,” which the Second Circuit has held are relevant to a calculation of
statutory damages. Bryant, 603 F.3d at 144. Mr. Strong first calculates the profits attributable to
the infringement of the works at issue by apportioning LimeWire’s profits based on a percentage
of the estimated total downloads on the LimeWire system represented by downloads of the
works at issue. Mr. Strong estimates that, depending upon which of several particular
assumptions are applied, LimeWire’s profits attributable to downloads of the infringed works
was between $2-6 million dollars.
Mr. Strong then opines that the “expenses saved” by Defendants can be represented by
the amount Defendants would have paid to Plaintiffs to obtain a license to exploit the infringed
works. This concept is imported from patent law, which requires courts to determine a
“reasonable royalty for the use made of the invention by the infringer” as a floor for damages for
infringement. 35 U.S.C. § 284 (2010). In Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F.
Supp. 1116 (S.D.N.Y. 1970), this Court held that one relevant factor in calculating a reasonable
The amount that a licensor (such as the patentee) and a licensee (such as the
infringer) would have agreed upon (at the time the infringement began) if both
had been reasonably and voluntarily trying to reach an agreement; that is, the
amount which a prudent licensee – who desired, as a business proposition, to
obtain a license to manufacture and sell a particular article embodying the
patented invention – would have been willing to pay as a royalty and yet be able
to make a reasonable profit and which amount would have been acceptable by a
prudent patentee who was willing to grant a license.
Id. at 1120. In applying this concept, courts are permitted to use 20/20 hindsight to look to the
actual profits of the infringer to inform the amount that the patent holder would have expected to
receive. See Trans-World Mfg. Corp. v. Al Nyman & Sons, Inc., 750 F.2d 1552, 1568 (Fed. Cir.
1984). Under Mr. Strong’s analysis, Defendants, as rational economic actors, would not agree
to pay more for a license than they would have made in profits from the infringing activity. He
thus concludes that Defendants’ expenses saved are no more than $2-6 million.
Plaintiffs argue that Mr. Strong’s analysis misconstrues the law. In particular, Plaintiffs
argue that the reasonable royalty and hypothetical negotiation concepts are meant to establish
“the floor, not the ceiling of damages.” King Instruments Corp. v. Perego, 65 F.3d 941, 947
(Fed. Cir. 1995). By allowing a royalty based on a hypothetical negotiation based upon 20/20
hindsight as to the patent’s real value, a court can ensure that a patent holder is sufficiently
compensated for the infringement. Plaintiffs argue that, even if actual profits are probative of
anticipated profits, there is no authority for the proposition that the actual profits serve as a cap
on damages. In addition, Plaintiffs argue that resort to a hypothetical negotiation is inappropriate
when Plaintiffs have available data from actual negotiations for comparable licenses with such
partners as the Apple iTunes store.
Plaintiffs argue further that Mr. Strong’s entire hypothetical negotiation framework is
“based on assumptions that are so unrealistic and contradictory as to suggest bad faith.”
Boucher, 73 F.3d at 21 (citation omitted). In particular, Plaintiffs argue that the idea that they
would provide an unlimited license to over 10,000 of their works for $2-6 million, irrespective of
the effect that such a license would have on the rest of their business, is so divorced from reality
as to render Mr. Strong’s analysis on this point irrelevant. Plaintiffs argue that, even as Mr.
Strong determines that LimeWire would not pay more than a rational economic actor would to
obtain a license, he gives no consideration to whether it would be rational for Plaintiffs to offer a
license at that price. Moreover, Plaintiffs argue that it makes no sense to limit the price of a
hypothetical license to LimeWire’s actual profits without regard to what they were. As Plaintiffs
point out, by Mr. Strong’s logic, if LimeWire had made only $1 in profits, Plaintiffs would
license their works for only $1. Plaintiffs argue that these analytical flaws are so fundamental as
to render Mr. Strong’s testimony inadmissible.
The Court finds that, although Plaintiffs expose potentially significant weaknesses in Mr.
Strong’s testimony, these criticisms go more to the weight of his testimony than to its
admissibility. SR Int’l. Bus. Ins. Co., Ltd. v. World Trade Ctr. Props., LLC, 467 F.3d 107,
134 (2d Cir. 2006) (holding that “gaps or inconsistencies” in expert testimony “go to the weight
of the testimony not to its admissibility” (citation omitted)). Moreover, Plaintiffs misconstrue
the import of Mr. Strong’s opinion. Mr. Strong does not conclude, as Plaintiffs seem to believe,
that the amount of the “expenses saved” by Defendants must serve as a cap on the damage
award. Rather, Mr. Strong uses the hypothetical negotiation framework to arrive at the
“expenses saved” factor from the test for calculating statutory damages set forth by the Second
Circuit in Bryant. 603 F.3d at 144. A calculation of how much Defendants would have paid for
a license to legally exploit Plaintiffs’ works is one, among several, ways to determine the
expenses that Defendants saved by their infringement. Plaintiffs do not point to any authority
holding that such an approach may never be used to determine expenses saved by an infringer.
The Court’s task in reviewing the admissibility of expert testimony is to examine the expert’s
“principles and methodology, not . . . the conclusions that they generate.” Daubert, 509 U.S. at
595. Although some of the assumptions upon which Mr. Strong’s conclusions rest are
potentially weak, these weaknesses can be easily exposed through cross-examination, and do not
render his testimony inadmissible. See MacQuesten, 2002 WL 31388716, at *2; Park W.
Radiology v. CareCore Nat. LLC, 675 F. Supp. 2d 314, 326 (S.D.N.Y. 2009).
Plaintiffs move to exclude portions of the testimony of Defendants’ proposed music
industry expert, Professor Aram Sinnreich. Professor Sinnreich is an Assistant Professor of
Journalism and Media Studies at Rutgers University School of Communication & Information.
He was previously a visiting Assisting Professor at New York University, in the Department of
Media, Culture and Communication. He was a doctoral fellow and lecturer at the Annenberg
School for Communication at the University of Southern California, where he received his Ph.D
in 2007. He received his masters in journalism from Columbia University School of Journalism.
Over the course of his academic career, he has taught such classes as “Musical Culture and
Industries,” “Topics in Digital Media,” and “Copyright, Commerce and Culture.”
Professor Sinnreich is also a founding partner of Radar Research, Inc., a consultancy and
research firm founded in 2005 that focuses on the intersection of culture, business, and
technology. Prior to that time, he was the founder and president of Sinnreich Media Research,
where he performed custom research and consulting for clients in the music and technology
industries. From 1997-2002 he worked at the internet research firm, Jupiter Research, where he
managed the Music and the Policy research divisions. During that time, Plaintiffs (and their
affiliate companies) purchased his research reports and attended conferences that he organized
and at which he presented. In 2000 and 2002, Professor Sinnreich conducted and the published
the results of surveys of users of Napster to determine their music purchasing habits.
Professor Sinnreich has written and published widely on issues of music and digital
technology. He has published a book about music and technology (Mashed Up, Univ. of Mass.
Press 2010). He has published academic articles on music and technology in peer-reviewed
journals, and has reported on the music industry and technology issues in publications such as
the New York Times, Wired News, and Billboard. He has lectured about these issues at
universities worldwide, as well as at industry conferences and academic conferences. He is also
a working musician, and has composed songs, played with various bands, and has licensed and
sold his music in various formats over the years. (See Oller Dec. in Support of Defs.’ Brief in
Opposition to Pls.’ Mot. to Preclude Certain Purported Expert Testimony of Aram Sinnreich
(hereinafter “Oller Dec.”), Ex. B, Expert Report of Aram Sinnreich (hereinafter “Sinnreich
Report”), at 1-2, Ex. 1.)
He has previously offered expert testimony in a number of cases involving the music
industry, copyright and technology, including the Grokster case in the Supreme Court, where his
affidavit was cited several times. See MGM Studios, Inc. v. Grokster, 545 U.S. 913 (2005).
Professor Sinnreich testified at his deposition that he regularly reads music industry trade
journals. Defendants summarize that, over the course of Professor Sinnreich’s journalistic and
academic career he has been in “regular contact with ‘literally hundreds of people’ at record
labels, management companies, technology firms, media companies, journalists, analysts, and
artists and their representatives, both one [on] one and at conferences, including people in the
digital divisions of the Plaintiff record labels.” (Defs.’ Brief in Opposition to Pls.’ Mot. to
Preclude Certain Purported Expert Testimony of Aram Sinnreich (hereinafter “Def. Opp.
(Sinnreich)”) at 4-5 (citing Oller Dec., Ex. C, Transcript of Deposition of Aram Sinnreich
(hereinafter “Sinnreich Dep.”) at 77-84.)
Professor Sinnreich states that, as a result of his “decade and a half of research and
involvement in the music industry,” (Sinnreich Dep. at 78:8-10), he has developed particular
expertise in several areas relevant to this case, including (1) “Consumer behavior in the music
industry, especially with respect to digital media”; (2) “The history and structure of the music
industry, especially from the 1980s to the present”; (3) “The role of digital technologies in
changing the relationships between recording artists, industry and consumers”; (4) “The
availability of free music via the internet, and the ways in which consumers access and use it”;
and (5) “The nature and mechanism of peer-to-peer file sharing, and the variety of platforms and
providers that have emerged over the past 12 years.” (Sinnreich Report at 2.) Plaintiffs
themselves acknowledge that Professor Sinnreich is a “music industry expert” (Pl. Mem.
(Strong) at 8 n.2.), and concede that he “may well be qualified to offer testimony about the
history and structure of the music industry, the rise of new technologies, [and] how the music
industry responded to those technologies.” (Pl. Mem. in Support of Mot. Preclude Certain
Purported Expert Testimony of Aram Sinnreich (hereinafter “Pl. Mem. (Sinnreich)”) at 7.)
Plaintiffs move to exclude several portions of Professor Sinnreich’s testimony. In
particular, Plaintiffs move to exclude (1) his testimony regarding causation of the decline in
Plaintiffs’ sales and revenues; and (2) several portions of his testimony on the grounds that they
are irrelevant and prejudicial. For the following reasons, Plaintiffs’ motion is GRANTED in
part, and DENIED in part.
Professor Sinnreich’s report includes many of the same conclusions on the various causes
of the decline of the music industry as Mr. Strong’s report. He also relies on many of the same
sources that were cited in Mr. Strong’s report. Plaintiffs challenge these conclusions for many of
the same reasons as they challenged Mr. Strong’s testimony: (1) that his testimony is unreliable,
(2) that his testimony lacks a proper factual basis, and (3) that he is unqualified to offer his
testimony. Plaintiffs object to Mr. Strong’s testimony because, although he has economic
expertise, he had no relevant experience in the music industry. In their motion to exclude
Professor Sinnreich’s testimony, Plaintiffs make the inverse argument—that, although Professor
Sinnreich has expertise in the music industry, he does not have any expertise in economics, and
is therefore not qualified to offer testimony on this issue.
The Court finds that Professor Sinnreich is qualified to offer his testimony on causation.
Professor Sinnreich bases his conclusions on over a decade and a half of experience researching,
observing and interacting with the music industry and the commerce and culture of the Internet.
He is well qualified as an expert on these issues, and the Court finds that his opinions fall well
within his expertise. See Tin Yat Chin, 371 F.3d at 40 (instructing courts to “compare the area in
which the witness has superior knowledge, education, experience, or skill with the subject matter
of the proffered testimony”).
Courts have long held that an expert testifying about damages need not be “trained as an
economist.” In re MTBE, 2008 WL 1971538, at *5. In the MTBE case, which related to the
handling of a gasoline additive that resulted in contamination of groundwater, the plaintiffs
presented the testimony of Robert Reynolds, “a consultant to the government and the petroleum
industry specializing in the use of fuel oxygenates.” Id. at *1. Mr. Reynolds testified about a
variety of matters, including the feasibility of alternative means of fuel production, in the course
of which he opined on issues of price, demand, and production cost. Id. at *4. The defendants in
the case moved to exclude the portions of his testimony about these “economic factors” because
he is “not trained as an economist.” Id. at *5. The court denied the defendants’ motion, holding
that Mr. Reynolds was “qualified by experience” to testify about these issues. Id. The court
noted that “[c]ourts allow experts to testify to matters within their general expertise when they
lack qualifications as to certain technical matters within that field.” Id. at *6. In the end, the
court concluded that “Defendants’ challenges to Reynolds’ qualifications as an economist . . .
may be a basis for cross-examination, but do not prevent him from testifying about ethanol
production capacity,” even where that testimony required him to discuss “considerations of cost,
supply and demand [as] part of his overall analysis . . . .” Id. See also Blue Cross and Blue
Shield of N.J. v. Philip Morris, Inc., No. 98 Civ. 3287, 2000 WL 1738338, at *2 (E.D.N.Y. Nov.
1, 2000) (allowing testimony by doctor quantifying smoking-related costs attributable to the
defendants, even though he is “a medical doctor and not an economist,” given “his extensive
involvement in cigarette issues”); Interplan Architects, Inc. v. C.L. Thomas, Inc., No. 08 Civ.
3181, 2010 WL 4065465, at *13 (S.D. Tex. Oct. 9, 2010) (allowing testimony by president of
convenience store chain on the impact of certain variables on a convenience store’s success, even
though he was “not . . . an economist or econometrist,” because he could base his opinion on his
twenty five years of “practical experience in the industry”).
Plaintiffs argue that these principles do not apply here, because unlike in those cases,
Professor Sinnreich is engaged in “core economic analysis” of “how various factors impacted a
particular market.” (Pl. Reply (Sinnreich) at 3 and n.3.) Having reviewed Professor Sinnreich’s
report, the Court does not agree with Plaintiffs’ characterization of his testimony. Professor
Sinnreich offers testimony based upon his years of experience working in and with the music
industry about various issues that have had an impact on the industry’s revenues. He bases his
opinions on his review of trade publications, academic literature, and the public statements and
filings of members of Plaintiffs’ industry, as well as conversations with leaders of these
industries throughout his career.5 He does not purport to quantify the impact of these factors,
and while he makes reference to certain basic economic concepts, he does not attempt to apply
any technical econometrics to reach his conclusions. See Interplan Architects, 2010 WL
The Court reserves judgment as to whether the individual statements and reports on which
Professor Sinnreich relies for his opinions may be disclosed to the jury if they are otherwise
inadmissible. Under Rule 703, such statements may only be disclosed to the jury if “their
probative value in assisting the jury to evaluate the expert’s opinion outweighs their prejudicial
effect.” Fed. R. Evid. 703.
4065465, at *13 (allowing “general, non-quantitative opinions” by non-economist on variables
affecting a store’s success).
Professor Sinnreich’s lack of economics expertise may be a basis for cross-examination,
but it does not render his testimony inadmissible, even if his testimony touches on broad
economic principles. See In re MTBE, 2008 WL 1971538, at *6. See also Johnson & Johnson,
2006 WL 2128785, at *6 (objections to witness’s qualifications go to weight, not admissibility).
b. Reliability and Factual Basis
For similar reasons, the Court finds Plaintiffs’ contentions that Professor Sinnreich’s
testimony is unreliable misplaced. Plaintiffs argue that his testimony is unreliable because (1) he
did not employ an appropriate level of “intellectual rigor,” Kumho, 526 U.S. at 152; (2) he failed
to test his theories; (3) he ignored relevant factors; (4) he failed to control for the impact file
sharing on Plaintiffs’ losses; and (5) his opinions are speculative.
Plaintiffs argue that Professor Sinnreich’s selective citation of studies that support his
conclusions (particularly his conclusion that file sharing has benefited record companies)
demonstrates a lack of intellectual rigor. This argument misconstrues the conclusion that
Professor Sinnreich offers. As Professor Sinnreich, himself, testified, he was “willing to accept
that there is credible evidence on the other side,” but that his role was to “say whether there was
credible evidence that file sharing had beneficial market effects.” (Sinnreich Dep. at 100:24101:21.) Professor Sinnreich does not attempt to reach any kind of scientific conclusion, which
might have required his accounting for any alternative evidence. See U.S. Info. Sys., Inc. v. Int'l
Bhd. of Elec. Workers Local Union No. 3, 313 F. Supp. 2d 213, 238 (S.D.N.Y. 2004) (“An expert
must demonstrate that he has adequately accounted for obvious alternative explanations in order
for his testimony to be reliable.”). Rather, his more modest conclusion is simply that there is
credible evidence that supports a particular conclusion, and he cites to that evidence. Plaintiffs
are, of course, free to challenge his conclusions by pointing to studies that reach contrary
conclusions. But that issue goes to the weight, not the admissibility of his testimony. See
MacQuesten, 2002 WL 31388716, at *2 (holding that “a claim that the assumptions relied on by
an expert are unfounded” goes to weight, not admissibility); see also SR Int’l, 467 F.3d at 134
(“gaps or inconsistencies” in a witness’s testimony go to weight, not admissibility); In re
Zyprexa, 489 F. Supp. 2d at 285 (“The mere fact that an expert’s testimony conflicts with the
testimony of another expert or scientific study does not control admissibility.”).6
It is also relevant that Professor Sinnreich’s conclusions on these points are not based on
a selective review of a limited universe of sources strictly for the purposes of preparing to testify
in this case. Cf. R.F.M.A.S., 2010 WL 4341331, at *19 (excluding expert testimony that was
“based on the set of assumptions that plaintiff directed them to employ and the circumscribed
universe of data available to them”). Rather, the record demonstrates that Professor Sinnreich
has reached his conclusions independently, based upon his own experience in the relevant
industries. See Kumho, 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.”).
Plaintiffs’ argument that Professor Sinnreich failed to test his theories or offer
quantitative analysis is rejected for the same reason. As an initial matter, Professor Sinnreich
Plaintiffs also point out that some of the studies cited by Professor Sinnreich were unpublished
versions, and that the later published versions altered the relevant conclusions. It is well settled
that the sufficiency of “textual authority” for an expert’s opinion goes to its weight, not its
admissibility. Johnson & Johnson, 2006 WL 2128785, at *6 (citing McCullock, 61 F.3d at
1044); Id. at *7 (“Publication is but one element of peer review and ‘does not necessarily
correlate with reliability.’” (quoting Daubert, 509 U.S.at 593)). This issue can be raised on
has, in fact, conducted his own research into the effects of file sharing on music purchasing
habits as a researcher at Jupiter Research. That research did specifically control for file sharing’s
effects. But even as to effects to which he testifies, and for which he does not perform specific
quantitative analyses, he has sufficient experience in the relevant industries to render his
Plaintiffs also challenge the factual basis for many of Professor Sinnreich’s conclusions,
focusing on his failure to base his conclusions upon empirical, quantified data concerning, inter
alia, the used and independent recordings market, the scale of commercial CD bootlegging, the
replacement cycle for CDs, the effect of Minimum Advertised Pricing on sales and revenues, and
the revenues Plaintiffs receive from alternative sources. But again, as Professor Sinnreich
explained, these conclusions were based not only on a review of academic literature, but also
upon his direct experience in the industry, including, for example, extensive conversations with
industry executives, retailers, and the heads of retailer trade organizations. (Sinnreich Dep. at
166:19-167:2.) The fact that he did not precisely quantify these figures does not mean that they
are wholly lacking in factual basis.
The Court finds that Professor Sinnreich’s conclusions depend not upon technical
economic analysis, but rather experience in the relevant industries. Professor Sinnreich has
extensive experience in the industry, and although he cites many of the same studies and
publications as Mr. Strong, his conclusions are grounded in his experience, and are thus
Prejudice / Irrelevance
Plaintiffs move to exclude several portions of Professor Sinnreich’s testimony on the
grounds that this testimony is of limited relevance and that any relevance is substantially
outweighed by the danger of unfair prejudice to Plaintiffs. Specifically, Plaintiffs move to
exclude (1) Professor Sinnreich’s testimony that a large damage award is unlikely to deter
unlawful downloading of music, and that there are other, more effective ways for Plaintiffs to
“resolve their problems than seeking damages” (Pl. Mem. (Sinnreich) at 20); (2) his testimony
about Plaintiffs’ alternative sources of revenue; and (3) his testimony about the degree to which
artists and other non-parties support file sharing and/or have a negative view of the Plaintiff
The Court GRANTS in part and DENIES in part Plaintiffs’ motions with regard to these
Professor Sinnreich concludes his report by opining that a large damage award in this
case will not have any significant deterrent effect on illegal file sharing. Instead, he argues that
“market-based ‘carrots’ will always be more effective than legal ‘sticks’ as a means to produce a
functional digital music industry.” (Sinnreich Report at 60.) Plaintiff argues that this testimony
is not only irrelevant and prejudicial, but that it does not assist the jury and impermissibly
“undertakes to tell the jury what result to reach.” United States v. Duncan, 42 F.3d 97, 101 (3d
Cir. 1994). According to Plaintiffs, this testimony does not assist the jury, “but rather attempts to
substitute the expert’s judgment for the jury’s.” Id.
The Court agrees that Professor Sinnreich’s views on the best strategy “to produce a
functional digital music industry,” and whether a “carrot” or “stick” approach is more effective,
are irrelevant and should be excluded. Defendants appear to concede as much in their brief.
(See Def. Opp. (Sinnreich) at 24 (“Defendants do not intend to call Professor Sinnreich
affirmatively to opine that Plaintiffs would be better off not suing Lime Wire or that a large
award is against Plaintiffs’ interests.”).) Thus, this testimony is excluded.
However, Professor Sinnreich’s testimony on the deterrent effect of a large damage
award is potentially relevant to the case. Under Bryant, one factor to consider in setting statutory
damages is “the deterrent effect on the infringer and third parties.” 603 F.3d at 144. Professor
Sinnreich testifies about the availability of alternative online sources for free music, both legal
and illegal; the lack of an impact on file sharing from the shutdown of other p2p programs; and
the existence of open-source software and a “global community of coders,” who are not
motivated by financial gain, and are “ready to reverse-engineer any digital roadblock the industry
can erect.” (Sinnreich Report at 60; Sinnreich Dep. at 312:10-315:18.) All of these issues may
to some extent bear on the degree of deterrence a damage award in this case will have on some
third parties. The probative value of this testimony is not substantially outweighed by its
prejudice, and this testimony does not usurp the role of the jury. He does not state that a
particular damage award will have a particular deterrent effect. Rather, he provides relevant
testimony that will assist the jury in determining the potential deterrent effect of a damage award.
b. Alternative Revenue Sources
Professor Sinnreich testifies about several new sources of revenue that record labels have
been exploiting in recent years. For example, Professor Sinnreich describes so-called “360
deals,” wherein a record label shares in revenues from concerts and merchandise sales, as well as
sales of recordings. He also cites to royalties from the placement of recordings in movies,
television shows, and music-based video games such as Rock Band. Professor Sinnreich
concedes that there is no direct relationship between these revenue streams and file sharing, but
claims that the sharing of music aids in the marketing and promotion process for artists, and that
it allows record labels to measure and assess demand for particular artists, which also helps in
determining which songs to license to other media. (Sinnreich Dep. at 234:14-236:5.) This
testimony is relevant to the question of the impact that file sharing has had on music industry
revenues. Although the connection between file sharing and these revenue streams may be
tenuous, that goes to the weight of the testimony. Moreover, Defendants do not state that they
will argue from this testimony what Plaintiffs fear they will (i.e., that “Plaintiffs still have ways
to make money” despite Defendants’ infringement).
Non-Party Opinion about File Sharing and Record Labels
Professor Sinnreich devotes a section of his report to discussing the indirect benefits of
file sharing by citing public statements of various recording artists in support of file sharing,
and/or critical of recording companies. He also includes a section on “historical label-artist
relations,” wherein he discusses the degree to which the major record labels “have been
consistently criticized for unfair or unethical business relations with their artists.” (Sinnreich
Report at 48.) Plaintiffs move to exclude this testimony on the ground that it is irrelevant, as
well as highly prejudicial, in that it is designed to make jurors unsympathetic to Plaintiffs.
Testimony about relations between recording companies and artists is likely to be
excluded. This case concerns Defendants’ inducement of copyright infringement of Plaintiffs’
works. Any relevance of the nature of the relations between recording companies and artists is
likely to be substantially outweighed by the danger of unfair prejudice to Plaintiffs.
As to the testimony relaying various recording artists’ positive views of file sharing
(including the view that it is beneficial to their livelihood), the Court reserves judgment. The
Court understands that Plaintiffs may seek to call witnesses to testify as to specific artists’ views
of the adverse impact that file sharing has had on their livelihood. If they do so, the Court will
assess at that time the admissibility of contrary views held by other artists. However, if
Plaintiffs do not present such testimony, then Defendants' testimony about artists' views of file
sharing has limited relevance and is likely to be excluded.
For the foregoing reasons, Plaintiffs motion to preclude portions of the testimony of Emin
Gun Sirer, George Strong and Aram Sinnreich (Dkt. Entry No. 572) are DENIED in part and
GRANTED in part. As to certain specific matters arising under Rule 403 of the Federal Rules of
Evidence, the Court reserves judgment.
Dated: New York, New York
April 29, 2011
Kimba M. Wood
United States District Judge
One example of evidence excludable under Rule 403 is Trent Reznor's encouragement of fans
to "steal away, steal and steal and steal some more" because the record labels are "ripping people
off, and that's not right." (Sinnreich Report at 39.) The probative value of this evidence (if any)
is substantially outweighed by the danger of unfair prejudice.