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Case4:07-cv-01658-PJH Document875-1 Filed09/16/10 Page10 of 11 Not Reported in F.Supp.2d, 2000 WL 1170106 (N.D.Cal.) (Cite as: 2000 WL 1170106 (N.D.Cal.)) are capable of performing critical Napster functions like searching and indexing. Many of them clearly do not perform such tasks. Accordingly, Conclusion I will be struck in its entirety. 2. Conclusion 2: Applicability of 17 U.S.C. Section 512(a) *10 In Conclusion 2, Tygar opines that Napster is similar to “existing file sharing techniques” like the search engines Lycos and Alta Vista, email, and the World Wide Web-among others. He further states that he believes Napster qualifies for the safe harbor in 17 U.S.C. section 512(a). See Lisi Dec. (Tygar Rep.) at 26. Tygar's opinions in Conclusion 2 conflict with this court's ruling on defendant's motion for summary adjudication. See A & M Records, Inc v. Napster, 2000 WL 57136, at *7-8 (N.D.Cal. May 12, 2000). There, the court expressly held that section 512(a) does not cover Napster because, unlike protected Internet service providers, Napster does not act as a mere conduit for file sharing. See id. Lay persons may not offer expert testimony about the content of the law. See, e.g., United States ex rel Oliver v. Parsons Co., 195 F.3d 457, 462 (9th Cir.1999), cert. denied, __U.S.__, 102 S.Ct. 2657 (2000); Crow Tribe of Indians v. Racicot, 87 F.3d 1039, 1045 (9th Cir.1996). Such testimony is especially inappropriate when it conflicts with past rulings of the court. Therefore, Conclusion 2 is inadmissible. 3. Conclusion 3: Access to Copyright Information and Ability to Obtain Authorization from Copyright Owners According to Conclusion 3, Napster cannot distinguish copyrighted material restricted by the owner from either uncopyrighted material or copyrighted material for which the owner or the law permits free distribution. Tygar further opined that it would be “technically infeasible” to require Napster to obtain information from the rights-holder before Page 9 providing access to the material. See Lisi Dec. (Tygar Rep.) at 28. At his deposition, Tygar clarified that, by “Napster,” he meant the computer program, rather than the defendant company. See Greer July 13, 2000 Dec. (Tygar Dep.). at 84:3-10. Plaintiffs first challenge Tygar's opinion regarding Napster's ability to identify copyrighted material on the ground that it does not reflect “good science” under Daubert. They object that Tygar did not interview Napster employees or conduct any empirical research about rights-checking. See id. at 172:14-25, 173:1-2. He also failed to confer with his peers in the field of computer science. See id. at 172:6-13, 175:11-14. At his deposition, he characterized his research as qualitative, rather than quantitative. See id. at 175:9-10. Plaintiffs also argue that Tygar's opinion on Napster's ability to obtain information about copyrights must be excluded because it is not the product of his expertise as a computer scientist. According to plaintiffs, Tygar does not understand (and hence cannot offer opinions about) how other copyright users like radio and television stations obtain authorizations. Tygar does not discuss these other channels of distribution, however. As plaintiffs note, he generally limits his conclusions to the capabilities of the Napster computer program. *11 The court overrules plaintiffs' objection to the extent that Conclusion 3 discusses whether the Napster system can determine if a given MP3 file has been pre-authorized for distribution. Tygar's failure to give a more detailed explanation of how he analyzed the Napster service bothers the court; however, given his expert qualifications, this shortcoming does not warrant excluding his report. However, speculation on pages 32 and 33 about the ability of humans to check for pre-authorization lies beyond the scope of Tygar's expertise and must be excluded. 4. Conclusion 4: Napster's Ability to Check Authorizations © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case4:07-cv-01658-PJH Document875-1 Filed09/16/10 Page11 of 11 Page 10 Not Reported in F.Supp.2d, 2000 WL 1170106 (N.D.Cal.) (Cite as: 2000 WL 1170106 (N.D.Cal.)) Plaintiffs object to this conclusion because it does not encompass other methods of checking authorizations “both on the Internet and in the real world.” Pl.'s Mot. to Exclude Tygar Rep. at 8. However, Conclusion 4 is limited to the ability of the Napster computer program to check authorizations. This lies within Tygar's expertise as a computer scientist. The court therefore overrules plaintiffs' objection. 5. Conclusion 5: Authorization Would Change the Web to a “Centralized Utility” Conclusion 5 merely amounts to editorial comment on Internet policy. It does not appear to be based on any research or expertise. Because it does not aid the trier of fact, it will be excluded. 6. Conclusion 6: Watermarking Could Carry Rights Information with a Recording Plaintiffs object that Conclusion 6 is irrelevant because the preferred watermarking standard is not an issue in this case. The court disagrees. Because Napster has raised acquiescence and waiver as defenses, Tygar's expert opinion about the recording industry's failure to develop technologies to protect its copyrights has relevance. The court overrules plaintiffs' objection. 7. Conclusion 7: Napster's Ability to Tell Whether a Use of the System is Infringing Here, Tygar speculates about possible legitimate uses of the Napster system. While this opinion is relevant to defendant's fair use defense, neither a lay person nor an attorney may presume to instruct the court in the law. Accordingly, Conclusion 7 is inadmissible. CONCLUSION For the foregoing reasons, defendant's motion to exclude the Jay Report and the Fine Report is DENIED. The court also DENIES plaintiffs' motion to exclude the Fader Report and the Hall Report, but GRANTS plaintiffs' motion to exclude the Lessig Report. Plaintiffs' motion to exclude the Tygar Report is GRANTED as to Conclusions 1, 2, 5, 7, and the portion of Conclusion 3 on pages 32-33 that deals with humans' ability to check for preauthorization. The court deems the remainder of the Tygar Report to be admissible. IT IS SO ORDERED. N.D.Cal.,2000. A & M Records, Inc. v. Napster, Inc. Not Reported in F.Supp.2d, 2000 WL 1170106 (N.D.Cal.) END OF DOCUMENT © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
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