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#1419443 v1 den
 UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS)CAPITOL RECORDS, INC., et al., )Plaintiffs, ) Civ. Act. No. 03-cv-11661-NG) (LEAD DOCKET NUMBER)v. ))NOOR ALAUJAN, )Defendant. )))SONY BMG MUSIC ENTERTAINMENT, )et al., Plaintiffs, ) Civ. Act. No. 07-cv-11446-NG) (ORIGINAL DOCKET NUMBER)v. ))JOEL TENENBAUM, ))Defendant. ))
MOTION TO EXCLUDE TESTIMONY OF JOHN PALFREYINTRODUCTION
Defendant has designated John Palfrey as an expert witness to provide testimonyconcerning children’s understanding of the concept of “fair use” under copyright law, howchildren should be educated regarding fair use, and an explanation of the behavior of so-called“digital natives” regarding creativity and copyrights.
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As demonstrated below, this testimonyhas no conceivable relevance to any claim or defense in this case and, therefore, must beexcluded under
 Daubert v. Merrell Dow Pharmaceuticals, Inc.
, 509 U.S. 579 (1993) and Federal
1
A copy of Mr. Palfrey’s report and Curricula Vita are attached as
Exhibit A
hereto.
Case 1:03-cv-11661-NG Document 888 Filed 07/17/2009 Page 1 of 12
 
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#1419443 v1 den
 Rule of Evidence 403. Moreover, aside from the fact that his opinions have no relevance to thecase, Mr. Palfrey is not qualified to offer such opinions in the first instance. While Mr. Palfrey isa cyberspace lawyer who co-teaches classes with Defendant’s counsel, Charlie Nesson, and isalso a fellow faculty member and co-Director of the Berkman Center with Nr. Nesson, he has noeducation, training, or expertise at all in child psychology, child development, or childhoodeducation. Thus, Mr. Palfrey is not qualified to testify as an expert on these topics and shouldnot be permitted to do so under
 Daubert 
and Federal Rule of Evidence 403.Moreover, Mr. Palfrey by his own admission has no opinion whatsoever on whether ornot Defendant engaged in the uploading or downloading of Plaintiffs’ copyrighted soundrecording, nor does he have any opinion whether or not Defendant’s conduct is protected by fairuse. (Though Mr. Palfrey believes that anyone who uploads music on P2P networks is violatingthe intellectual property rights of the artist and, as a general proposition, such conduct is notprotected by fair use. (Palfrey Dep. at 59:16 to 63:22; 70:6 to 74:21.))
ARGUMENTI. MR. PALFREY’S TESTIMONY IS NEITHER RELEVANT NOR RELIABLEUNDER RULE 702 AND MUST BE EXCLUDED.
The Supreme Court has set an unequivocal bar that expert testimony must be excludedabsent strict intellectual rigor. The issue is not whether the proffered expert has sufficientcredentials; rather, “[t]he trial court [must] decide whether [the] particular expert [has] sufficientspecialized knowledge to assist the jurors in deciding the particular issues in the case.”
KumhoTire Co. v. Carmichael
, 526 U.S. 137, 157 (1999) (quotation omitted). The trial court must actas the gatekeeper for all types of expert testimony.
 Id.
at 141. All proffered expert testimony isgoverned by the Federal Rule of Evidence 702 reliability requirements.
 Id.
at 149. The partyoffering expert witness evidence bears the burden of establishing that the expert is qualified to
Case 1:03-cv-11661-NG Document 888 Filed 07/17/2009 Page 2 of 12
 
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#1419443 v1 den
 give the opinion and that the opinion to be offered is both reliable and relevant within themeaning of Rule 702.
Cook v. CTC Communs. Corp
., 2007 U.S. Dist. LEXIS 80849, at *5(D.N.H. Oct. 15, 2007).
 A. Mr. Palfrey’s Opinions Have No Conceivable Relevance To This Case.
“[E]xpert testimony must be relevant not only in the sense that all evidence must berelevant, but also in the incremental sense that the expert’s proposed opinion, if admitted, likelywould assist the trier of fact to understand or determine a fact in issue.”
 Ruiz-Troche v. PepsiCola of P.R. Bottling Co.
, 161 F.3d 77, 81 (1st Cir. 1998) (citing
 Daubert 
, 509 U.S. at 591-93).In other words, Rule 702, “requires a valid scientific connection to the pertinent inquiry as aprecondition to admissibility.”
 Ruiz-Troche
, 161 F.3d at 81.Here, Mr. Palfrey’s opinions are not relevant to any fact relating to the parties’ claimsand defenses. To prevail in this action, Plaintiffs must show: (1) ownership of valid copyrights;and (2) that Defendant violated one or more of their exclusive rights under the Copyright Act.
Saenger Org. v. Nationwide Ins. Licensing Assocs.
, 119 F.3d 55, 59 (1st Cir. 1997).Mr. Palfrey offers no opinion as to whether Defendant infringed Plaintiffs’ copyrights orwhether any legally recognized defense would excuse Defendant’s infringement. Rather, Mr.Palfrey would testify regarding the practices and discourses of so-called “digital natives, “howchildren understand fair use,” and how to educate children. (Exhibit A at 3-4, § II.)Significantly, Mr. Palfrey has no opinion as to whether Defendant himself is a “digital native.”(Palfrey Dep. at 153:22 – 154:5, excerpts attached as
Exhibit B
.) Moreover, even if Mr. Palfreydid consider Defendant a “digital native,” that bears no relevance to this case. Indeed, Mr.Palfrey does not believe that “digital natives” are – or should be – subject to a different set of copyright laws or that those laws. (Palfrey Dep. at 154:6 – 154:18.)
Case 1:03-cv-11661-NG Document 888 Filed 07/17/2009 Page 3 of 12
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