Court excludes Harvard Law School's John Palfrey as defense expert in Joel Tenenbaum case; Nesson calls ruling 'devastating'

Late Sunday the court issued an order granting the record label plaintiffs' motion to exclude Harvard Law School professor John Palfrey as a defense expert for Joel Tenenbaum, ruling that his opinions about "digital natives" are irrelevant to the case. Tenenbaum did not file an opposition to the motion. Tenenbaum's counsel Charles Nesson called the ruling "devastating."

Judge Nancy Gertner: Electronic ORDER entered granting [888] Motion in Limine with regard to the expert witness, John Palfrey: Defendant has designated John Palfrey as an expert witness in this case. Palfrey proposes to testify about a) how children understand fair use, and how that understanding has changed over time; b) the characteristics of "digital natives" and their practices and discourses surrounding creativity and copyright; c) the importance, in educating children, of communicating principles of behavior which they can understand. Plaintiffs have challenged both the relevance of Palfreys testimony and, under Daubert, his qualifications to offer the opinions contained in his proposed testimony.I do not agree with Plaintiffs challenge to Palfreys qualifications, at least as to (b) and to a lesser extent, (a). Palfrey has conducted and published a study of the internet generation (so-called digital natives") and their attitudes towards creativity and copyright; in effect, he seeks to testify about his research. He is well qualified to speak about the areas which he has studied and the data it has generated.The problem, however, is one of relevance. Palfrey is not offering, and expressly disclaims, any intent to testify about fair use -- the defense that would excuse Tenenbaum's allegedly infringing conduct. Palfrey's deposition made this clear: When asked about the relationship between his research, copyright law, and the use of the internet to obtain copyrighted works, he said I dont have the first idea. When asked whether he was suggesting different norms of infringement should be applied to digital natives in contrast to others (Plaintiffs counsel described them as mere mortals), he answered, I am not.Presumably, then, Palfrey's testimony is offered on the question of whether Tenenbaum's alleged infringement and the damages that accrue from it, but even in that regard it is flawed: Palfrey concedes that the general observations of his work -- which are quite interesting and important, and may well be helpful for policymakers -- do not apply to the Defendant in this case. Even assuming that this testimony bears on the question of whether infringement, if found by a jury, was willful, Palfrey does not claim that Tenenbaum is an example of the individuals he has studied. When asked whether the observations he obtained from focus groups and his study can be applied to Tenenbaum, he stated: I make no claim whatsoever on that score. When asked if he could claim that the conclusion in his report applies to Tenenbaum, he stated I cannot." When asked whether his research bears on the question of whether Tenenbaum should have understood that what he was doing was illegal, he noted: I dont," and added, I dont think my survey speaks to that in any meaningful way. Nor is there another witness who would link Palfreys general observations to Tenenbaum or the pattern of his conduct in this case. Accordingly, Palfrey's testimony is EXCLUDED. (Gertner, Nancy)

Judge Gertner has not yet issued her rulings on plaintiffs' motion for partial summary judgment on fair use or on their motion to limit the testimony of defense expert Johan Pouwelse. Trial starts Monday morning at 9:00 a.m.