Expert Testimony in Software Copyright Infringement Trial

In the Yue v. Chordiant Software, Inc. copyright infringement case (C08-0019-JW, N.D. Cal.), defendant Chordiant Software, Inc. used two of plaintiffs' technologies (PowerRPC and JRPC) to develop a client-server product called CMD, which allegedly brought in about 32% of Chordiant's revenue.

One of Chordiant's defense strategy was to attack the technical strength and diminish the value of the PowerRPC and JRPC technologies. For this purpose, Chordiant hired technical expert Philip J. Faillace. Faillace claimed to have received a Ph.D. from Oxford in mathematics and was a scientist at Preferred Software, Inc.. But Faillace never published a peer-reviewed paper, which was rather unusual for an Oxford Ph.D., as a Ph.D. is usually only awarded for worthy original research.

Faillace had no experience in programming network sockets (the basis of the PowerRPC and JRPC technologies), he had no experience developing RPC technologies, and he admitted that he was not an expert in RPC technologies. In deposition testimony, Faillace could not "decipher" a single line of actual RPC code, and he had no idea how to approach some of the technical issues the plaintiffs helped their customers to solve. Yet he testified in court that one could develop an RPC technology similar to PowerRPC+JRPC in just two weeks, with a cost of about $32,000. Chordiant's financial expert, Dr. Matthew Lynde, then used the $32,000 figure as the amount of profit that plaintiffs could recover from Chordiant. Faillace and Lynde were paid more than $700,000 for their expert opinions.

Some think "experts are a cancer on the legal system." Yet, experts are presumed to be neutral and offer truthful opinions to the trier of fact. Thus, when paid experts start giving unfounded opinions, plaintiffs still face the challenge of proving them wrong. To discredit Faillace's opinions, the plaintiffs showed the following:

1) Plaintiffs spent years developing PowerRPC and JRPC;

2) Chordiant used some open source alternatives to replace PowerRPC and JRPC, these alternatives also took years to develop;

3) The alternatives did not have the features PowerRPC and JRPC provided;

4) The alternatives suffered from critical bugs.

In the end, the jury awarded over $1 million of defendant's profits to the plaintiffs.

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