Summary: Printing & Publishing Expert Witness not allowed to testify even though the plaintiff argued that the expert was qualified to offer an opinion on fair use based on his decades of work on websites in the newspaper industry.
Facts: This case (Emmerich Newspapers, Incorporated v. Particle Media, Inc. et al – United States District Court – Southern District of Mississippi – September 20, 2022) involves a claim of copyright infringement. The plaintiff owns local newspapers in 3 southern states. The defendant, Particle Media runs a website called Newsbreak, which links and indexes third-party news content. Newsbreak publishes snippets and full-text articles from online newspapers. After numerous motions and decisions, the only issue remaining in this case is if the fair use doctrine is in use when the snippets are published. The plaintiff has hired Printing & Publishing Expert Witness Wyatt Emmerich to provide expert testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: The plaintiff states that it will offer testimony that Particle Media’s practices are not valid under the fair use doctrine. The defendant argues that Mr. Emmerich should not be allowed to offer an opinion on fair use because it is an ultimate conclusion of law, which is not allowed under Daubert. The court concludes that Mr. Emmerich will not be allowed to testify about his knowledge of court cases and copyright laws related to fair use. In addition, the court opines that Mr. Emmerich will be allowed to testify about the elements of fair use, but only as a lay witness based on his own personal knowledge.
In addition, the plaintiff states that Mr. Emmerich’s testimony will also include his opinions that that Newsbreak is not a search engine or a news aggregator. The court states that this testimony will not be allowed because Mr. Emmerich is not qualified to offer this type of opinion. The court continues by concluding that the plaintiff did not provide any valid evidence that Mr. Emmerich is qualified to opine on this issue.
Last, the court rules that all of the remaining expert opinions proffered by Mr. Emmerich will be excluded because they do not satisfy the Daubert requirements.
Conclusion: The motion to exclude the expert witness testimony of Wyatt Emmerich is granted.