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Weighing the Benefits: How Much Weight Will Your Survey Have in Court?
As consumer surveys become increasingly common forms of evidence in matters involving copyright, patent or trademark infringement, so too do Daubert challenges that attempt to disqualify that evidence. In a previous article, our Analysis Group colleagues drew on our collection of over 300 U.S. court rulings to provide tips on how to conquer the admissibility hurdle.
However, getting admitted into court is no guarantee of success — you are not over the entire Daubert hurdle just yet. The next step is ensuring that your survey is given the appropriate weight, i.e., convincing the fact finders that your survey's results are dependable and useful.
Technical Flaws Are More Likely to Impact a Survey's Weight than Its Admissibility
As described in our first article in the July issue (see, "Survey Says: Tips on Getting Over the Daubert Hurdle"), some survey flaws can be fatal, leading to exclusion under Daubert and causing real harm to a case and potentially to the credibility of the expert who submitted the excluded survey. However, in other instances, even surveys that have been found to suffer certain technical flaws may ultimately be admitted into evidence. This is especially true when the court concludes that the flaws identified in the Daubert briefings have more bearing on a survey's weight (or credibility) rather than on its admissibility.
Courts appear to agree that even flawed surveys can sometimes aid the trier of fact, and they are therefore reluctant to exclude survey evidence altogether. In this vein, courts open an avenue for the assessment of a survey's quality through "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof," and allow the parties to attack "shaky but admissible evidence." [emphasis added] (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993).
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
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