exhibit 2 - SAP Lawsuit Portal

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
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