Tag Archives: copyright infringement


Expert Accuses Munsch Hardt Of Reusing His Old Reports

A telephone systems expert witness and a telecommunications company have accused a Texas-based law firm of reusing expert witness reports to deceive Telephone Consumer Protection Act plaintiffs. 

The Dispute

Telephone systems expert witness Aaron Woolfson and the telecommunications company that he founded, TelSwitch, Inc., claim that Texas-based law firm Munsch Hardt Kopf & Harr PC misused recycled testimony in order to mislead complainants into cheap settlements. Woolfson claims that Munsch Hardt reused his old expert reports to convince complainants that Texan retail furniture and appliance outlet company Conn had retained Woolfson’s for its bill collection arbitration cases. Woolfson argues that this violates the confidentiality of arbitration proceedings and constitutes an infringement of protected work.

Woolfson’s allegations include copyright infringement, unfair business practices, and quantum meruit.

Prior Expert Opinion

Woolfson is the founder of telecommunications company TelSwitch. He has over 25 years of experience as an innovator in his field and is often consulted as an expert in issues related to allegations of violation of the Telephone Consumer Protection Act of 1991 (TCPA). The Telephone Consumer Protection Act was passed by Congress and signed into law by George H. W. Bush as an amendment to the Communications Act of 1934. The TCPA prohibits most “robocalls,” including unsolicited and pre-recorded telemarketing calls made to landline home phone lines. It also prohibits autodialed and prerecorded calls and text  to your personal  cell phone numbers.

Woolfson has consulted or testified as an expert in over 1,000 largely TCPA related cases. In 2016, he was retained by Conn in a lawsuit in which former customers alleged harassment via Conn debt collectors. His November 2016 expert opinion in an arbitration case concluded that the calls made from Conn calls did not constitute a TCPA violation. 

Woolfson has stated that no expert report had been given to the defendants since April 2017 and permission to reuse these previous expert reports was never granted. 

Reusing the Expert Opinions

In July 2020, over three years after Woolfson provided an expert report to Conn, Woolfson received an email from attorney David McGlothin of the Kazerouni Law Group, APC inquiring as to whether Woolfson was available for deposition. Woolfson was shocked to find that his previous report had been altered and submitted as a new expert report authored by him in the “Hernandez Matter.” Woolfson had no knowledge of the case, nor had had any contact with Conn or knowledge of their updated phone systems. However, Munsch Hardt claimed that Woolfson had granted Conn full rights to his expert opinion for use “in any future matters.”

Woolfson and Telswitch have since found reason to believe that Munsch Hardt Kopf & Harr PC may have submitted outdated expert reports in dozens or even hundreds of cases — without permission — for their own profit. 

Woolfson and Telswitch have filed a lawsuit against Conn Appliances and Munsch Hardt in United States District Court Northern District of California alleging that they deliberately committed copyright infringement. Woolfson and Telswitch are seeking an injunction against further false reporting of testimony, payment of damages, lost consultation pay, and legal fees.

Man studying music notes on a blackboard

Court Denies Justin Bieber’s Request to Delay Filing of Expert Report

Justin Bieber and Usher may be forced to go to trial in a copyright infringement lawsuit without an expert witness. The presiding judge denied their motion to extend the deadline for providing an expert witness report. Without the benefit of an expert musicologist, Bieber and Usher will have a more difficult challenge as they attempt to persuade the jury that the hit song “Somebody to Love” was not copied, at least in part, from a song with the same title that was written by Devin Copeland and Mareio Overton.

Copyright Infringement Lawsuit

Copeland, an R&B artist, released his version of “Somebody to Love” in 2008 under the name De Rico. Copeland and Overton registered a copyright to the song. A company that recruits artists for major labels gave a promotional copy of the song to its clients, including Usher.

Copeland alleges that Usher’s mother, who is also his manager, told him that they were interested in having Copeland join Usher on tour after Copeland recorded an anticipated album. The album included the song “Somebody to Love.” Copeland says Usher’s mother never followed up on that suggestion.

Months later, Usher recorded a demo of a song titled “Somebody to Love.” He posted the demo to YouTube but did not release it commercially. Bieber, who regards Usher as a mentor, worked with Usher to record his own version of Usher’s demo.

Bieber’s version of “Somebody to Love” was included on his first album. The song was a success, peaking at number 15 on the Billboard Hot 100 chart. A month or two later, Usher and Bieber released a remix of the song. Both Usher and Bieber performed on the remix, with was otherwise virtually the same as Bieber’s solo version.

Copeland claimed that the Usher/Bieber song copied original, copyrighted content from his song. He sued in federal court for copyright infringement. The district court judge dismissed the lawsuit without a trial after deciding that no reasonable jury could find that the two songs were substantially similar. Copeland appealed.

Copeland’s Appeal

The Court of Appeals noted that copyright infringement requires proof that the defendant copied original, copyrightable elements of the plaintiff’s work (in this case, a song). Copying can be inferred from evidence that the defendant had access to the song and that the defendant’s song is substantially similar to the copyrighted song.

The Court of Appeals scrutinized the two songs for “substantial similarity” by making an extrinsic and an intrinsic inquiry. The extrinsic inquiry is objective. The question is whether the original elements of the first song closely match similar elements in the second song. The court noted that plaintiffs typically rely on expert evidence to establish that the first song has original elements and that the same elements appear in the second song. If they do, an inference can be drawn that the creator of the second song copied those elements from the first song, provided that the creator of the second song had access to the first song.

The intrinsic inquiry is subjective. It asks whether the song’s intended audience would experience the two songs as similar in their overall effect. The intrinsic test relies on an aesthetic judgment regarding the “concept and feel” of the two songs.

A plaintiff suing for copyright infringement must establish both extrinsic similarity and intrinsic similarity. The district court dismissed the lawsuit without considering extrinsic similarity because it decided that no reasonable jury could find that the songs were intrinsically similar. The court of appeals disagreed.

The district court decided that Copeland’s song and Bieber’s song were different in tone and mood. The court of appeals acknowledged that the songs are written to accommodate different genres. Copeland’s song is performed in an R&B style while Bieber’s fits within the genre of dance pop. Yet differences in genre alone do not make songs intrinsically dissimilar. If that were true, the court explained, a reggae version of a Beatles song would not violate the Beatles’ copyright.

The court of appeals also acknowledged that the two songs are dissimilar in more ways than they are similar. Lyrics, melodies, and beats are all different, at least in some respects, when the songs are compared side-by-side.

Yet the question at this stage of the case is not whether a court believes the two songs are intrinsically similar, but whether a jury could find that they are intrinsically similar. The court of appeals thought that the chorus or “hook” in each song, from the shared lyric “I need someone to love” to the strikingly similar rhythm and melody, could cause a general audience to believe that the two songs were similar in their overall effect. In fact, the court suggested that the audience would want to sing along with the chorus in each song for the same reasons. Since the chorus was substantially important to the overall effect of the two songs, and since a jury could find that the choruses are intrinsically similar, the court of appeals decided that Copeland was entitled to have a jury decide whether Bieber and Usher copied Copeland’s song.

Preclusion of Bieber’s Expert Witness

As the court of appeals noted, the extrinsic similarity of two songs in a copyright infringement trial is usually the subject of expert testimony. Musicologists on both sides typically express opinions about which components of a song are original and whether original components in the first song are repeated in the second song.

Expert witnesses in federal cases must prepare reports. Those reports must be disclosed before a deadline established in a scheduling order. Copeland and Bieber jointly asked the district court judge to amend the court’s scheduling order. Joint motions are routinely granted and, if the judge had consented, Bieber would have had until April 15 to file his expert report.

Defying the expectations of Bieber’s attorneys, the judge denied the motion. She is reportedly frustrated by repeated delays in the case and wants to assure that it goes to trial in October. The judge denied the motion on March 30, after Bieber’s lawyers had already missed the March 21 deadline to file their expert report.

Scrambling to avoid going to trial without an expert witness, Bieber’s lawyers are asking the judge to reconsider. They explained that their expert musicologist is busy with other cases, including a lawsuit alleging that Jimmy Paige copied parts of “Stairway to Heaven” from a song by the band “Spirit.” They also advised the court that they would have hired an expert who is less busy if they had known the court would deny the joint motion to amend the scheduling order.

The court might agree to allow the expert report to be filed late. On the other hand, it might rule that courts, not parties, set deadlines and that parties have an obligation to comply with those deadlines. If Bieber and Usher are forced to go to trial without an expert, they may have little hope of contesting the claim that the songs are extrinsically similar, forcing them to hinge their defense on the argument that the songs are substantially different in concept and “feel.”