- Plaintiffs are seeking to exclude the expert testimony of two experts proffered by Google: William Patry and Ryan Sullivan.
- Both are improperly opining on legal issues reserved for the Court, argue the Plaintiffs. Google disagrees and contends that the proffered testimony will assist the Court on the fact-specific nature of the copyright issues that are raised — and that militate against class certification.
- Hearing is set before Judge Eumi Lee on February 4, 10 AM PST.
Plaintiffs are seeking to exclude the expert testimony of two experts proffered by Google: William Patry and Ryan Sullivan.
Of course, as Plaintiffs say, “Patry formerly served as Google’s Senior Copyright Counsel for over 17 years and now works at Quinn Emanuel, where he represents other large technology companies in litigation involving the use of copyrighted works to train artificial intelligence models.”
Patry is best known for his copyright treatise.
Plaintiffs: “It is well established that an expert may not opine on “matters of law for the court….Patry’s report disregards this clear rule. He repeatedly opines that topics relating to ownership and validity registration may create ‘individualized issues’ with respect to copyright registrations. E.g., Expert Report of William Patry (“Patry Rpt.”) (ECF No. 288-27), ¶¶ 10 (“claims of ownership, the material covered, or the validity of the registration . . . are dependent on the unique facts applicable to each individual work, and litigation is often necessary to assess them”); 13 (“That sort of ownership dispute is only the beginning of the kinds of individualized issues that can arise with respect to copyright registrations.”); 25 (“Registrations that state inaccurate information can be and often are invalidated in litigation, but obtaining information to identify such misrepresentations can be an arduous and highly individualized undertaking”). But whether purported individualized issues defeat predominance is a legal conclusion, not a proper subject of expert testimony.”
Google: “Mr. Patry draws on a remarkable 40+ year career as a copyright authority—with the United States Copyright Office, working for Congress, serving as a law professor, authoring a leading copyright treatise for decades, and as a practitioner—to identify myriad work-specific factual and legal issues that often arise in assessing the ownership of a copyrighted work and the validity and scope of a copyright registration. That testimony is properly offered to aid the Court in assessing Plaintiffs’ ability to carry their burden to show that common issues predominate over those requiring individualized consideration.“
Plaintiffs raise the same challenge to Ryan Sullivan’s proffered expert testimony: “Sullivan’s report suffers from the same fundamental defect: it offers legal conclusions disguised as economic analysis. Throughout his report, Sullivan criticizes Plaintiffs’ economist, Dr. Michael D. Smith, for . But Smith’s opinions focus on Google’s conduct and its effects on the licensing market for copyrighted works. Fair use or copyright infringement is never an input of his analysis.”
Google disagrees: “Plaintiffs start with a baffling argument: Dr. Sullivan’s testimony “fail[s] to assist the Court” as he “offers no opinion that Google’s conduct caused no market harm, nor any affirmative economic analysis of his own.” Mot. 6. Plaintiffs either fail to recognize (or for some reason are choosing to ignore) that Dr. Sullivan’s report is offered as a rebuttal to the report ofproposed expert Michael D. Smith. As plainly stated in the Sullivan Rebuttal Report, his assignment was to “evaluate and analyze the economic arguments contained in the Smith Report,” not to develop affirmative opinions on other issues. Sullivan Rebuttal Rpt. ¶ 8. Accordingly, the Sullivan Rebuttal Report addresses the incorrect, poorly reasoned, speculative, conclusory, and baseless opinions in the Smith Report, and explains how Prof. Smith’s conclusions are shown to be wrong when analyzed using a proper economic analysis and methodology. Dr. Sullivan’s testimony will certainly “assist the Court” by explaining why it should reject Prof. Smith’s opinions.
A hearing is set for February 4 before Judge Eumi Lee.
DOWNLOAD THE PLAINTIFFS’ MOTION
DOWNLOAD GOOGLE’S OPPOSITION