You Don’t Have to Call…
Judge Arenda Wright Allen is playing hard ball in the 4th circuit with Justin Bieber and Usher who are facing a copyright infringement lawsuit for Justin Bieber’s hit song “Somebody to Love”. The plaintiff, Devon “the Dude” Copeland, initially filed suit against the defendants about three (3) years ago and the complaint was initially dismissed, but on appeal, the court found that the plaintiff’s song and defendant’s songs were sufficiently similar to warrant a trial by jury. Trial, which is set for October, is almost guaranteed for the defendants at this stage, unless they settle beforehand. Unfortunately for these defendants, the judge recently issued a ruling that would prevent defendants from presenting any expert testimony on any subject, including copyright infringement and damages. The ruling is wildly absurd and terribly unfair given the fact that copyright infringement cases are made and proven based on the testimony of musicologists and other experts in the music industry. If Bieber and Usher are prevented from calling their own experts, the jury will only hear the opinions of the experts who favor the plaintiff’s claim of infringement and they will not ever hear the opinions of experts who may in fact refute the claim of infringement.
Judge Allen was reportedly fed up with repeated delays by the defendants to hand in their expert witness reports. The defendants were under the impression they were given an extension until April 15, 2016 from the original March 21, 2016 date because they filed an extension and received consent from the plaintiff. The defendants had no reason to think the judge would have denied the extension when the plaintiff consented to it. Defendants contend they were not employing delay tactics, but that their expert witness musicologist had a conflict and would not be able to complete a report by that original deadline, but could by April 15. Defendant’s did not attempt to secure another musicologist because they were firm in their belief that they would have until the 15th of April to hand in their reports. Judge Allen basically told the guys in so many words “you don't’ have to call – your expert witness to the stand tonight”. Sorry. I had to. :-/
In response, defendant’s have filed an emergency motion asking the court to reconsider its decision as it produces what the defendant’s believe to be a “draconian” penalty. The brief states "[i]t would constitute 'manifest injustice' to preclude Defendants from serving expert reports and presenting expert testimony — especially the opinion testimony from a musicologist with unparalleled credentials, whose expertise is necessary to enable the trier of fact to accurately assess the similarity (or lack thereof) between the parties’ musical compositions."
Let’s hope the court reconsiders because if not, this case is pretty much over before the trial begins.