Affidavits

Affidavit¹

United States of America v. Luke Simmons

District of (name)

Ms. Susan Dougherty, being first duly sworn, deposes and says:

I am a marketing analyst employed by Generic Record Company. I have worked with the company for 12 years. I received my Bachelor's and Master's Degrees in Marketing from Commonwealth College. Part of my job is to investigate, and place a monetary figure on, how much revenue Generic Records loses every year due to the pirating of their materials. In-house counsel at Generic Records contacted me and asked if I could put a dollar amount on the number of their songs that the defendant downloaded. I said that I could.

The defendant downloaded some 714 songs total and some 54 movies. Using an estimate of $1 per song and $10 per movie, it comes to some $714 for the songs and $540 for the movies, or some $1,254 total. The defendant is alleged to have downloaded some 310 songs to which Generic Records owns the copyright; therefore, Generic lost approximately $310 to the defendant. This is not counting, however, lost CD revenues that occur because the defendant does not have to purchase an entire CD once a particular song is downloaded. I was not asked to investigate this claim.

/Susan Dougherty/

Subscribed and sworn to before me this first (1st) day of June, 2006.

SEAL                                                 /sig/
Elizabeth Jones
Notary Public

My commission expires July 2018.

1. Adapted from: West's Legal Forms: 3rd Ed. Vol. 27. (Bradford Stone, General Ed.; St. Paul, Minn. West Publishing Co., 1996).

Affidavit²

United States of America v. Luke Simmons

District of (name)

Lisa Fitzgerald, Ph.D., being first duly sworn, deposes and says:

My name is Dr. Lisa Fitzgerald. I am a Professor of Marketing and Advertising at New State College. One of my areas of expertise is calculating lost profits due to retail theft - both due to shoplifting and electronic piracy. In May 2006, lawyers for the Defendant, Mr. Simmons, contacted me and asked me to review Susan Dougherty's calculations for the dollar amount of the loss attributed to the Defendant's allegedly illegal downloading of music and movies.

I agreed to do so, and drew the following conclusions. In a technical sense, her findings were accurate; however, in a practical sense, they were not. The difference arises in the way Ms. Dougherty calculated her loss numbers. She based these numbers on the average price for all movies and music. In other words, several prominent statisticians gathered a collection of thousands of movies and songs, and averaged their prices. The result was an estimate of roughly $1 per song and $10 per movie.

When one takes the actual retail value for the songs and movies that Mr. Simmons was alleged to have downloaded, they average much less-roughly 30 cents per song and $7 per move. So, if, for the sake of argument, the Defendant actually downloaded some 714 songs total and some 54 movies, his actions would have only resulted in losses totaling $214 for the songs and $378 for the movies, or $592.00 for both.

While it is true that Ms. Dougherty employed the more commonly accepted method to calculate losses, the method I used to arrive at my conclusions is specifically sanctioned by several leading journals, and is slowly being employed in more and more situations because it is based on the actual retail value of the products.

/Lisa Fitzgerald, Ph.D./

Subscribed and sworn to before me this first day of July 2006.

SEAL                                              /sig/
Mike Farrell
Notary Public

My commission expires January 2019.

2. Adapted from: West's Legal Forms: 3rd Ed. Vol. 27. (Bradford Stone, General Ed.; St. Paul, Minn. West Publishing Co., 1996).