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)
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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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