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SONY DSCIn a recent copyright infringement case, the defendant filed a motion to exclude the plaintiff’s expert claiming the software expert only examined 1% of the codes.  Judge Ellison explained that the defendants’ argument of the plaintiff’s expert analyzed only 1% of the defendant’s code went to the weight of the report, not its admissibility. The Judge went on to say that this was not an instance where the expert based his opinions on facts that were of so little weight that his opinion should not have been admitted at all. While 1% of the defendant’s software code was not a large amount, the judge reasoned, another district court recognized that “[t]here does not appear to be any perfect way to compare millions of lines of source codes.” It allowed focusing on those parts where copying was likely.  Courts that strike experts for lack of factual basis typically involve an expert who cannot point to any data supporting his opinion.


Back in 2006, two programmers formed a software company. They teamed up to develop scheduling software that integrated with SAP. Mr. C was responsible for the business and design aspects, and Ms. S developed the actual software code.  To be able to develop the program, the software company signed a Development License Agreement with SAP, which granted the company a license to use SAP’s software.   Later on, Mr. C left the partnership and went to form his own software company.

Ms. S then filed a copyright infringement claim against Mr. C and his company.  She motioned for partial summary judgment, arguing that defendants infringed on her exclusive right to reproduce, prepare derivative works, and distribute copies under 17 U.S.C. § 106.  The plaintiff’s software expert identified a number of similarities in the source code between the two software. Defendants, relying on their expert reports, pointed out that these types of software often have similar functionality and code because they are designed to be compatible with SAP.  The defendants claim that the source codes are partly derived from SAP-supplied code. They also argued that the evidence presented by plaintiff could not prove a substantial similarity between the two software because the plaintiff’s expert looked at less than 5% of the code in the plaintiff’s software and less than 1% of the code in the defendant’s software.

The defendants also moved for summary judgment, arguing that Ms. S did not own the allegedly infringed code and that the two software were not substantially similar.  Both parties filed motions to exclude each other’s experts.

District Judge Keith P. Ellison of the United States District Court for the Southern District of Texas wrote in his opinion that Federal Rule of Evidence 702 states that the expert witness must be qualified “by knowledge, skill, experience, training, or education,” and that a court must exclude an expert witness if it discovers that the expert is not qualified to testify in a particular subject.  However, the judge wrote, citing an earlier case, that “Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility.”

Judge Ellison noted that the plaintiff’s expert witness had over 14 years of experience in SAP Advanced Business Applications Programming and held a certification in it.  He developed hundreds of new programs and also modified existing programs.  He reviewed the defendant’s software’s user manuals and those of the plaintiff’s, and he saw a demonstration of the software. He then spent three days inspecting the defendant’s source code.  The plaintiff’s expert took screenshots throughout his inspection, and then spent several days comparing screenshots of original and current versions of the two software.  Defendants argued that his report must be excluded for lack of basis, as the code analyzed in the plaintiff’s expert report was only a small percentage of both programs.

The defendants also contended that the source code claimed to be copyrighted was uncopyrightable scenes a faire, “expressions that are standard, stock or common to a particular subject matter or are dictated by external factors.” When external factors necessitate a certain expressive form, granting copyright to that expression “would effectively afford a monopoly to the first programmer to express those ideas.” The defendants argued that the line breaks, indentation, and formatting of the plaintiff’s software were dictated by external factors, specifically the use of a SAP formatting program.  Plaintiff’s expert pointed out numerous places where spacing and indentation in the software were identical, and he believed that no two developers could independently format their code as identically as those in question.

The defendants’ motion to exclude plaintiff’s software expert was denied.

By Kurt Mattson, J.D., LLM