Vargas et al v. Pfizer Inc. et al

Filing 87

DECLARATION of Christopher Keegan in Support re: 85 SECOND MOTION for Summary Judgment.. Document filed by Brian Transeau. (Attachments: # 1 Exhibit Ex B# 2 Exhibit Ex C# 3 Exhibit Ex D# 4 Exhibit Ex E# 5 Exhibit Ex F# 6 Exhibit Ex G# 7 Exhibit Ex H# 8 Exhibit Ex I# 9 Exhibit Ex J part 1# 10 Exhibit Ex J part 2# 11 Exhibit Ex K# 12 Exhibit Ex L# 13 Exhibit Ex M# 14 Exhibit Ex N part 1# 15 Exhibit Ex N part 2# 16 Exhibit Ex O# 17 Exhibit Ex P# 18 Exhibit Ex Q# 19 Exhibit Ex R# 20 Exhibit Ex S# 21 Exhibit Ex T# 22 Exhibit Ex U# 23 Exhibit Ex V)(Ahrens, Julie)

Vargas et al v. Pfizer Inc. et al

Doc. 87 Att. 13

EXHIBIT M

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4. Declaration of Rhys Moody 5. Expert Report of Dr. Richard Boulanger 6. Second Amended Complaint in this matter 7. Judge Pauley's decision denying Defendants' motion for summary judgment.
Evaluation of Dr. Boulanger's Methods and Conclusions Both Aparthenonia and Funky Drummer are formed by repeating one bar, a 2.3 second pattern, over and over. Dr. Boulanger isolates one bar from Aparthenonia and one bar from Funky Drummer for comparison. In his Figure 24, Dr. Boulanger shows the waveforms for these two bars, which I have copied by optical scanning and present in Figure 1 of this report. In Figure 1 I have added my own notation to the individual drum-strikes so that I can refer to them in my analysis. The Aparthenonia drum-strikes are labeled as "AP 1-AP 12" and the Funky Drummer drum-strikes are labeled as "FD 1-FD 12."

The waveforms in Figure 1 have many similar and dissimilar features. For instance, the drum-strikes of AP 11 and FD 11 appear to match, while AP2 and FD2 do not. The Plaintiffs claim that this dissimilarity is a result of digital editinglmanipulation. That is, during copying, the individual drum-strikes of Funky Drummer have been moved around by manipulating them with a computer audio editing program in order to create Aparthenonia. The Defendants claim that the two waveforms are differentbecause they have a different origin; i.e., one is not a copy of the other. Dr. Boulanger maintains that two waveforms can look similar even if they come from different instruments and different musicians. According to Dr. Boulanger, even though AP11 looks very much like FD11, it does not necessarily mean that one is a copy of the other. However, according to Dr. Boulanger, comparing the frequency spectra of the two waveforms can provide a definitive answer. That is, if Aparthenonia is a copy of Funky Drummer then their frequency spectra will match. However, ifAparthenonia and Funky Drummer have different origins then their frequency spectra will not match. To answer this question Dr. Boulanger calculates the frequency spectra of the two waveforms in several different ways, which he presents in his Figures 1-36. Up to this point I am in general agreement with the essence of Dr. Boulanger's statements. However, since I have no musical training I cannot render any opinion as to whether or not different musicians, with different instruments, playing at different points in time, can produce waveforms that look this similar. Nonetheless, I do agree that frequency spectra are a much more sensitive measure of the similarity of audio waveforms. In short, I agree that comparing the frequency spectra of Aparthenonia and Funky Drummer is an appropriate and powerful method of resolving the question at hand, i.e. if Aparthenonia is a digitally edited andlor manipulated copy of Funky Drummer. However, the methods used by Dr. Boulanger to compare the frequency spectra of Aparthenonia and Funky Drummer have two fatal problems and he has reached exactly the wrong conclusions. These problems are described below.

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All-in-all, when Dr. Boulanger concludes that there are no matches in the frequency spectra, my conclusion is that he didn't look very hard, because the matches are present and they are prominent.
My Analysis of Dr. Boulanger's Data Direct Covv versus Associated Covv In order to analyze these data it is important to distinguish between what I will call a "Direct Copy" and an "Associated Copy." To explain this, consider the example where a drummer strikes a drum once per second for 26 consecutive drum-strikes. We record these sounds and label the 26 drum-strikes with the letters: A; B, C, ... Z. These 26 drum-strikes will be very similar to each other in both waveform and frequency spectra; however, it is reasonable to believe that no two of them will be exactly alike. These are what I called Associated Copies. Since the drum-strikes are made by the same drummer on the same drum instrument in rapid secession, it is reasonable to expect that Associated Copies will have very similar, but not identical frequency spectra.

Now extend this example by assuming that an electronic copy is made of the drum-strikes recording. We will label the 26 copied drum-strikes with the lower case letters: a,b,c,...z, which correspond to the drum-strikes in the original recording: A, B, C, ... Z, respectively. If we compare like drum-strikes, such as "A-a", "B-b", or "Z-z", we will find an identical match in both waveform and frequency spectra. The only difference would be from whatever degradation is introduced by the copying procedure, which we will assume is negligible. This is what I call a Direct Copy. The next step is to allow for the possibility that the copied sequence, a,b,c ... z, can be digitally edited andlor manipulated. For instance, we might take the drum-strike on the front of the sequence and move it to the end. In other words, we change: a,b,c, ... z, into: b,c,d, ... z,a. In another case, we might take a single drum-strike from the copied sequence, such as "k", and duplicate it 26 times. This changes: a,b,c, ... z, into: k,k,k, ... k. The point is, this editing procedure destroys our ability to detect a Direct Copy. If we compare the first drum-strike in the original and the edited copy we are comparing "A-b" in our first example, and "A-k" in our second. In general, the "match" we could expect to find between any one drum-strike in the original sequence, and any one drum-strike in the edited copy sequence, is that of an Associated Copy. Only on rare occasions would random chance allow us to observe a Direct Copy when comparing the original drum-strikes recording to the edited copy of the drum-strikes recording. Detailed Analvsis of the Freauencv Spectra This analysis is started by examining two specific drum-strikes that appear in Funky Drummer, labeled as FD4 and FD 12 in Figure 1. As I have defined it above, these are Associated Copies of each other. Therefore their frequency spectra should appear very similar, but not identical. Now consider a single drum-strike in Aparthenonia, AP12, which appears to the eye to match FD4 and FD12. The question is: IfAparthenonia is based on a digitally edited copy of Funky Drummer, how much would we expect AP12 to resemble FD4 and FD12? Even if Plaintiffs are exactly correct, there is no reason to expect that any Direct Copies will be present. At most, AP12, FD4 and FD12 will be Associated Copies of each other. If the Plaintiffs are correct, AP12 should resemble FD4 and FD12, about as much as FD4 resembles FD 12. If the Defendants are correct, one would expect that FD4 and FD 12 would appear very similar, and AP12 would appear significantly different. This sets the stage for the simple test I have prepared in Figure 3. In this graphic I have placed the frequency spectra for FD4, FD 12, and
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AP 12 side-by-side for comparison. However, I have intentionallyplaced them in random order and without labels. The goal of this blind test is to determine if a human observer can determine which of these three spectra is different from the other two. After giving this test to several people it is clear that this cannot be done. In fact, if forced to choose which of the three spectra is different, all of the subjects I used chose the wrong one. These results are extremely strong evidence in favor of the Plaintiffs' assertion that Aparthenonia is based on a digitally edited andor manipulated copy of Funky Drummer. In order for Defendants' position to be correct (i.e., that Aparthenonia was created independently of Funky Drummer), it would mean that a different drummer, using different instruments, and at a different point in time, produced drum-strikes that are indistinguishable from the successive drum-strikes in Funky Drummer.

Conclusions The primary opinion I have been asked to provide is whether or not Aparthenonia is a digitally edited andor manipulated copy of Funky Drummer. My analysis of this is based almost solely on the data provided in Dr. Boulanger's report. Dr. Boulanger concludesthat the frequency spectra data provide evidence that Aparthenonia is not a copy of Funky Drummer. I strongly disagree; the methods and analysis conducted by Dr. Boulanger to reach his conclusionsare fatally flawed. I have found nothing in these data to support his conclusion. On the contrary, based on my data analysis shown in Figures 2 and 3, plus taking all the presented data as a whole, I find the evidence extremely strong that Aparthenonia is a digitally edited andor manipulated copy of Funky Drummer.

~teGen Smith, Ph.D. W.

Expert Report of Steven W. Smith