Wednesday, August 23, 2006

Experts and the Things They Say

Experts are a common feature of American litigation, for good, ill, or whatever. Here is a discussion of one's testimony on a common issue from a 10th Circuit opinion of August 7, Champagne Metals v. Ken-Mac Metals, Inc. in a state anti-trust claim about the effect of copyright infringement. The expert testified in an earlier opinion, Harold's Stores, to be discussed tomorrow.

"The economist testified that the defendant's illegal infringement on the plaintiff's copyrights didn't just do damage to [the plaintiff], it sen[t] a signal to anybody else that wants to enter this market, that if you come in here, you're going to get squashed because this big company will exercise its power and take your copyrights. In that regard, in economics, we would say it raised a barrier to entry. That itself is anti-competitive. That, in my judgment, is an unreasonable restraint of trade."


Anonymous said...

While I agree with the sentiment that economists (or any other experts) have no business testifying as to whether or not copyright infringement has occurred, unfortunately this opinion does not support the proposition.

The portion of the opinion quoted (p. 38) was *not* from the expert in the case at bar . . . the Court was quoting the testimony of an expert in an earlier decision, Harolds Stores v. Dillard Dept. Stores. Amazingly, in that decision, CTA10 found that this testimony was sufficient to justify the denial of a Rule 50(b) motion.

Personally, I'm shocked that in Harolds Stores the district court and CTA10 allowed an economist expert to testify as to copyright issues. Perhaps the defendants did not make a proper Daubert objection, or the issue was otherwise not on appeal. Nevertheless, I don't think it's accurate to say that CTA10 "was not impressed" by the quoted testimony, in that they actually relied upon it to support their decision in Harold Stores.

LKB in Houston

William Patry said...

LBK, you're right, I will discuss Harold's tomorrow