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RIAA Security Expert's Quest For Reliability

Zonk posted more than 7 years ago | from the is-he-who-he-says-he-is dept.

The Courts 170

NewYorkCountryLawyer writes "In the ongoing case of UMG v. Lindor, Ms. Lindor has now moved to exclude the trial testimony of the RIAA's 'expert' witness, Dr. Doug Jacobson. Jacobson is the CTO and co-founder of Palisade Systems, Inc, and a teacher of internet security at Iowa State, but in his February 23rd deposition testimony she argues he failed to meet the reliability standards prescribed by Daubert v. Merrell Dow Pharmaceuticals, Inc. and Federal Rule of Evidence 702. The Groklaw and Slashdot communities participated in both the preparation of the deposition questions, and the vetting of the witness's responses."

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i liek teh potatoe (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18914417)

---------------------
Comments above this line are from people who have not RTFA.

Re:i liek teh potatoe (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18915055)

The only people above that line are Zonk. Oh...

Geez too many links (4, Funny)

Mateo_LeFou (859634) | more than 7 years ago | (#18914441)

Could T real FA please stand up?

Re:Geez too many links (0, Redundant)

astrashe (7452) | more than 7 years ago | (#18914471)

What he said...

Re:Geez too many links (4, Informative)

gEvil (beta) (945888) | more than 7 years ago | (#18914517)

If you're interested in the most recent happenings in this case, then that would be the second link.

Re:Geez too many links (5, Funny)

LiquidCoooled (634315) | more than 7 years ago | (#18914549)

The first link is in the future.
Clicking it will result in a temporal vortex opening up and taking away your internets.

Re:Geez too many links (1)

strider44 (650833) | more than 7 years ago | (#18914733)

I was going to point out the same thing, but I'm wondering why he's so desperate for the article when it's obvious that he couldn't even be bothered to read the summary...

Re:Geez too many links (1)

gEvil (beta) (945888) | more than 7 years ago | (#18914891)

I'm just amused that I've been modded up when the second link doesn't contain anything more than what's included in the summary.

Re:Geez too many links (2, Funny)

Mateo_LeFou (859634) | more than 7 years ago | (#18915021)

I read the summary. How do you think I knew there were too many links in it?

Re:Geez too many links (-1, Flamebait)

Anonymous Coward | more than 7 years ago | (#18914577)

Uh Oh. You've been placed on NewYorkCountryLawyer's foe list [slashdot.org] . Standby for some of your random posts to be modded down for no particular reason at all. He likes revenge and he will likely think that modding your posts with one of his sock puppets (or friends) is justified since you are apparently a "RIAA hack." You probably should create a new username.

Re:Geez too many links (2, Funny)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18915923)

Dear Mr. Coward.

1. The designation of "foe" was by mistake.

2. I don't know what the heck you are talking about with "revenge" and "sock puppets".

Re:Geez too many links (0, Flamebait)

Tickletaint (1088359) | more than 7 years ago | (#18914893)

$50 says the submitter is from Windows/Linux land, where bombarding the user with useless options at every opportunity is somehow considered helpful.

Re:Geez too many links (1)

ssintercept (843305) | more than 7 years ago | (#18915177)

do you mean: Tenant Farmers Association?

Re:Geez too many links (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18915947)

I don't understand the complaint about there being too many links. You don't have to click them all if you don't want to.

Re:Geez too many links (0)

Anonymous Coward | more than 7 years ago | (#18916129)

As a long time Slashdot reader, this AC for one thanks you very much for the acknowledgement links you added to the summary indicating that Slashdot and Groklaw posters have contributed to this case. Personally I think the posters in those linked articles should appreciate your efforts to keep the light of truth shined on the activities of the RIAA and they should thank you for acknowledging their contributions to these efforts.

The very idea that people can seek out expert opinion on the internet when they can not afford to hire all these experts to defend them from bogus experts hired by the opposition in a case gives some hope to the future of the world. Lawyers in many ways are similar to programmers in their case to case activities, one specific area of similarity is the need to expand their knowledge base of a perhaps new to them subject in order to use their professional skills to help their client. Willingness and the ability to learn at least enough on a subject to know what to ask the experts and what to accept as being correct information can be a big help to both professions and to their clients.

Thank you Ray for your efforts at keeping us informed and the shining of the light of truth on the RIAA lawsuits via your website. Thankyou Ray for educating us to some extent on the Law, it won't make us lawyers but will alleviate some of our ignorance. Thankyou Ray for taking the time to talk to us and I hope you and your clients as well as other lawyers and their clients have gained from these discussions in at least some small fashion as well and judging from some of your links they have. And thank you again for acknowledging the use of questions from the Slashdot community.

Re:Geez too many links (2, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18916235)

It is I who am thankful for the outpouring of assistance we received from the tech community.

Ask me! (3, Funny)

alienmole (15522) | more than 7 years ago | (#18914449)

I know how the RIAA can achieve reliability - it's easy, really. All they need to do is...

Wait, what am I doing? On second thought, they can kiss my skinny pasty-white nerd ass.

Moderately Amused (2, Insightful)

Mateo_LeFou (859634) | more than 7 years ago | (#18914457)

That it required two very large combined communities to refute this sham expert. Still, that makes me hopefuly that mechanisms like this might rescue part of our judicial system from the money game.

Re:Moderately Amused (5, Interesting)

bmo (77928) | more than 7 years ago | (#18914741)

It may have taken some effort, but the testimony reads like a playbook for anyone who needs to pick apart any RIAA expert.

I posted this before, but this should be required reading for anyone interested in the subject:

http://www.groklaw.net/article.php?story=200703020 73736822 [groklaw.net]

And it's not just refuting the sham expert, it's about refuting the RIAA's strategy in general, and it's worked. The RIAA has much higher hurdles to jump now. Extorting money from random people just became much more expensive.

--
BMO

Re:Moderately Amused (1)

Bearhouse (1034238) | more than 7 years ago | (#18917855)

Well said. But I'm not sure that it's really amusing - well, either laugh or you cry, eh? Still, it's a good example of how, in a still reasonably free society, the right and ability of people to congregate and challenge can counterbalance errors in the legal and political system.

What does this mean? (0)

Anonymous Coward | more than 7 years ago | (#18914511)

Is this good, bad, or other?

Did Slashdot really do some legal stuff? And what does that have to do with Linux?

Re:What does this mean? (0)

Anonymous Coward | more than 7 years ago | (#18914579)

Is this good, bad, or other?

No, it's the opposite.

Re:What does this mean? (1, Funny)

Anonymous Coward | more than 7 years ago | (#18914657)

Normally I would tell you to RTFA, but since it included things like depositions and federal rules of evidence, I just didn't have the heart. I think it basically means that the RIAA might just have to call in a different biased expert witness.

Re:What does this mean? (4, Funny)

ScrewMaster (602015) | more than 7 years ago | (#18914689)

Is this good, bad, or other?

Other. I'm the guy with the gun.

Re:What does this mean? (1)

larry bagina (561269) | more than 7 years ago | (#18915113)

Slashdot has posted anti RIAA articles. I guess it's kind of like considering yourself a linux kernel developer because you watch the gcc output scroll by when you emerge gentoo.

Re:What does this mean? (1)

allthingscode (642676) | more than 7 years ago | (#18915743)

*Diverging into machine learning*
Enough classifiers, with slightly better than random knowledge on the concept, were able to produce a strong classifier by combining the individual results.
*/Diverging*

But seriously, they needed some technical knowledge, and it's been shown before that crowds with some knowledge can outdo an expert. And what better crowd than a /. mob.

Awesome. (3, Insightful)

EaglemanBSA (950534) | more than 7 years ago | (#18914551)

I think it's good to see not only someone continuing to fight back, but that we can make a difference as a technical community (hopefully).

2cents I also think that the RIAA and everyone from them can fornicate themselves with an iron stick. /2cents

I can see the troll/flamebait mods coming already.

Re:Awesome. (1)

Workaphobia (931620) | more than 7 years ago | (#18914727)

Yes, because making a difference in the community and hating the RIAA are two sure-fire ways to earn yourself a punch in the face on slashdot.

Re:Awesome. (1)

jstomel (985001) | more than 7 years ago | (#18916569)

Why would anyone mod you troll? Bashing the RIAA on slashdot is like making fun of France at the RNC. No one listening is going to disagree with you

Unreadable (-1, Offtopic)

zymano (581466) | more than 7 years ago | (#18914563)

No clue on what I just read. Nice going mods.

Re:Unreadable (4, Informative)

Dr. Eggman (932300) | more than 7 years ago | (#18914631)

What's so difficult to read? Different colors? Anyways, it basically says that some lawyers in new York are in an ongoing battle with the RIAA (via UMG) and a recent "expert" is being questioned on the grounds that they did not meet a certain standard to an expert witnesses, set forth by case precidence. It also states that Slashdot and Groklaw participated in formulating questions asked of the 'expert' as well as analysis of it's response.

Re:Unreadable (1)

owlnation (858981) | more than 7 years ago | (#18914875)

Your summary really does help. It's not just the different colors. It was one of the most impenetrable articles I've read here in a while. Perhaps not surprisingly, since I assume that the submitter is in fact a lawyer and has very little experience writing plain English.

The submitter may also want to hold off on TFA-linking world record attempt too. This is Slashdot, we seldom read one linked FA. Asking us to read, like 10 of them, just isn't going to happen.

Re:Unreadable (1)

Chmcginn (201645) | more than 7 years ago | (#18915033)

The submitter may also want to hold off on TFA-linking world record attempt too. This is Slashdot, we seldom read one linked FA. Asking us to read, like 10 of them, just isn't going to happen.

To be fair, several of them were either links to previous stories in this case on Slashdot, or links to previous stories on this case from other sources... I think the second link was the only new one.

Re:Unreadable (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18916353)

As a lawyer I've done the legal research on this point: there is no law requiring you to click every link.

Re:Unreadable (1)

maciarc (1094767) | more than 7 years ago | (#18916599)

there is no law requiring you to click every link.
My wife (who is waiting for me to come to bed as I'm typing this) thanks you. I do not.

Re:Unreadable (1, Interesting)

Anonymous Coward | more than 7 years ago | (#18916871)

Some here just don't seem to realize that you are used to making a valid referral as a confirmation for what you present in the courtroom as fact. They should realize this is very similar to the process of the creation and presentation of academic and scientific papers as well as a well done and well referenced business proposal.

Have you ever thought about how effective it might be if a judge and jury could be assisted in their decision making by computers with just the evidence from the case in it comletely with hyperlinks and and a search function? Once cited unless denied relavent case decisions are part of the evidence, correct? Would be amusing to have all those RIAA court failures and withdraws for ready viewing to judges and juries. Of course I could see the RIAA lawyers objecting to this "it would be highly prejudicial against our case if the jury sees those citations and realizes that not a single one of them shows our client as the 'winner' of the case" and of course they would seek permission to approach the bench to make that objection, not wanting the jury to hear it. Slashdotter on jury duty for a pornagraphy case: "ok, let's review the evidence".

Please make a reference to this idea in your records as well as the fact that this AC, barring prior art, assigns the idea of computer software which gives only specific case related evidence access to juries while barring access to games, the internet, etc as being given to the public domain and therefore should be no patent issued to anyone for it. Please note that the previous request to add to your records is a Pro Bono request, I can't afford to pay you for it and of course you are under no obligation to do so.:) It may also be irrelevant since you or other lawyers may have previous prior art in the idea itself even if no actual code been created.:)

I agree (i.e. please mod parent back up) (1)

catbutt (469582) | more than 7 years ago | (#18915035)

The summary was horrible. I spent a couple minutes just trying to figure out what the case was about and trying to figure out who Ms. Lindor was and gave up.

please to help? (-1, Troll)

Anonymous Coward | more than 7 years ago | (#18914591)

DEAR SIR/MADAM
PLEASE KINDLY ASSIST TO CARRY OUT THIS TRANSACTION

THANKS
AHMED SHAHEEN
REPLY TO ahmedshaheen07@yahoo.es PLEASE

Reason: Don't use so many caps. It's like YELLING?
Reason: Don't use so many caps. It's like YELLING?


 

nice conflict of interest... (1)

zogger (617870) | more than 7 years ago | (#18914675)

...you have uncovered with the expert witness. He does a lot of "umm...dunno, don't recall..dog ate my homework" etc. for a PhD.

Is this the end of MediaSentry? (0)

Anonymous Coward | more than 7 years ago | (#18914685)

If this motion is granted, could this be the end of the RIAA's use of Media Sentry?

If this court makes this ruling (and while IANAL, I would grant this motion!), could this be grounds for challanging all future MAFIAA supenas?

Re:Is this the end of MediaSentry? (3, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18915781)

If this motion is granted, could this be the end of the RIAA's use of Media Sentry?

If this court makes this ruling (and while IANAL, I would grant this motion!), could this be grounds for challanging all future MAFIAA supenas?

1.Yes.

2. Yes.

Am I the only one (4, Interesting)

Workaphobia (931620) | more than 7 years ago | (#18914707)

Am I the only one who does NOT despise Jacobson? I thought he held up fairly well in that deposition under the pressure of some of Mr. Beckerman's more irrelevant questions - for example, the ones targetting his vocabulary, or the ones about why he didn't produce imaginary documentation detailing an absense of evidence.

There are plenty of weak points in the RIAA's case as a whole. One could attack the chain of identity leading to the defendent - is the infringing activity traced to the correct IP, and is the IP at that time actually the one that belonged to Ms. Lindor, and can we be reasonably sure the activity took place on her computer, and we don't even know that she was the one at the computer so would she even be liable... The chain of identity is probably the best weak point in their case, but you could also argue that the damages are negligable and fight the absurd statutory fee, or that perhaps no uploading took place and the torrent was all seeded one way.

There are a number of legitimate arguments to be made, but the point I'm getting at is I don't see how the deposition of Jacobson attacked any of them sufficiently to prove or disprove his competence as an expert witness. Slashdot was quick to point out the minor screw-ups in his testimony, but many of those statements were perfectly fine in the context of explaining the technology to a layperson. Some of the "holes" in his argument were so unlikely that I would not even consider them reasonable doubt in a criminal case. Do you really think someone actually decided to frame the woman by filesharing wirelessly and changing her MAC address and internal NAT mappings to mask the presence of a wireless router? I don't.

Re:Am I the only one (2, Insightful)

Dachannien (617929) | more than 7 years ago | (#18914775)

imaginary documentation detailing an absense of evidence

When there is a search space of a size small enough that the entirety of it can be searched, one can produce evidence documenting that something is not present within that space.

Re:Am I the only one (1)

The Rizz (1319) | more than 7 years ago | (#18915897)

He is the prosecutions witness, so his job was to find evidence against the defendant, not to get their evidence for them. As long as he doesn't fabricate evidence or hide evidence he has done his job. If the defense wants that lack of evidence documented they can get their own expert witness; the data (or lack thereof) was not destroyed. If there is a question about it, it can be re-examined.

Regardless, he states that no such evidence exists, and that he will swear to the absence of it. Since he is the expert witness for the prosecution on this, that generally means that the prosecution is going with whatever he said; i.e. that no such evidence exists. As long as the defense doesn't contest that, you don't really need supporting evidence (all parties agree it is true, so supporting documentation is unnecessary) - the testimony will be considered evidence enough on that point.

Re:Am I the only one (1)

Workaphobia (931620) | more than 7 years ago | (#18917347)

But it seemed like Mr. Beckerman was specifically grilling Jacobson for not enumerating the vast number of things he did not find in his search.

Instead of saying "I found no evidence of animals", he was expected to record "I found no monkeys. I found no elephants. I found no really really big elephants. I found no zebras..." The information is simply redundant given that it can be summarized to a very simple line, but I suppose it's just good lawyering that one would draw out the point for as long as possible to emphasize the fact.

Re:Am I the only one (0, Flamebait)

JamesP (688957) | more than 7 years ago | (#18914781)

Yes

I thought he took it quite well, didn't behave as a complete jerk (as opposed to a certain lawyer there *coff*coff* )

Of course he had his "prick" moments, but the voucabulary thing was uncalled for.

Re:Am I the only one (1)

edward2020 (985450) | more than 7 years ago | (#18918451)

Is the vocabulary thing really uncalled for? Isn't this guy supposed to be some kind of computer forensics expert? Here is the definition of forensic: pertaining to, connected with, or used in courts of law or public discussion and debate. Don't you think the guy should have understood the word (I belive it was exculpation or something similar)? Since his testimony is used to determine this very thing (i.e. the word he didn't understand).

Re:Am I the only one (5, Informative)

Anonymous Coward | more than 7 years ago | (#18914823)

RTFA and follow the links.

The main argument is that all of his testimony is based on assuming the ISP and MediaSentry provided accurate information. MediaSentry and the ISP are not going to testify. In his deposition, the RIAA "expoert" stated he has no idea how MediaSentry or the ISP came to their conclusions. The cases sited require that the expert testimony start with verifiable facts, not with unverifiable information provided by third parties that will not even be in court.

Furthermore, the sited case law requires that the expert use peer reviewable methods. The RIAA's "expert" made up his own methods that have never been published or reviewed. So he can't be considered an expert by the court.

I kind of hope the judge refuses this motion. The RIAA's "expert" made enough errors in his deposition that he will be made a laughing stock on the stand.

Re:Am I the only one (1)

zappepcs (820751) | more than 7 years ago | (#18914941)

No, you are not the only one. He pretty much declares himself incapable of being an 'expert witness' as the court defines it. Then goes on to validate arguments that show it is not possible to know beyond reasonable doubt that the defendant is guilty.

From what I read, it didn't sound like they explored the whole mac address / ip address relationships and spoofing enough. Anyone that could present her mac address to the network DHCP server would likely get the same IP that her computer last acquired. If she is in the habit of using it to check email then turn it all off again, that would open up the question to who else might be using her mac address.

In all, I would think the court will disallow this 'expert witness'' testimony. There just is not enough credibility to it to allow it to stand as is.

Am I the only one-Flee while you can. (0)

Anonymous Coward | more than 7 years ago | (#18915081)

"From what I read, it didn't sound like they explored the whole mac address / ip address relationships and spoofing enough. Anyone that could present her mac address to the network DHCP server would likely get the same IP that her computer last acquired. If she is in the habit of using it to check email then turn it all off again, that would open up the question to who else might be using her mac address."

Well I'm sure it's buried in all the PDFs (make note that HTML can be searched faster) but generally in broadband connections the lease times are longer and when one does renew, one usually gets the same number as before.

Re:Am I the only one-Flee while you can. (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18916329)

Everything's *pdf because the federal court system opted for *pdf format. There's nothing I can do about that. Sorry.

Re:Am I the only one (1, Informative)

Anonymous Coward | more than 7 years ago | (#18915317)

I think you mean "cited", not "sited"

Re:Am I the only one (1, Informative)

GregAllen (178208) | more than 7 years ago | (#18915329)

You keep using that word. I do not think it means what you think it means.

From WordNet (r) 2.0 [wn]:
site
      v : assign a location to; "The company located some of their agents in Los Angeles" [syn: {locate}, {place}]
cite
      v 1: make reference to; "His name was mentioned in connection with the invention" [syn: {mention}, {advert}, {bring up}, {name}, {refer}]

Re:Am I the only one (0)

Anonymous Coward | more than 7 years ago | (#18914861)

Just because someone is knowledgeable in technology, doesn't make them so with common sense.

Re:Am I the only one (2, Funny)

vivaoporto (1064484) | more than 7 years ago | (#18914905)

Am I the only one who does NOT despise Jacobson?
Yes. You must be new here, welcome to slashdot.

Re:Am I the only one (1)

Paradise Pete (33184) | more than 7 years ago | (#18914977)

Am I the only one who does NOT despise Jacobson? I thought he held up fairly well in that deposition

Really? It's not like on Perry Mason or Matlock, where the witness breaks under the pressure and confesses. But short of that I don't see how an objective reader of the transcript could conclude that Jacobson is a qualified expert.

But he'll get another chance. On Monday he's being deposed in another case. Presumably he's had a chance to practice up a bit, so it will be interesting to see how that goes.

Re:Am I the only one (1)

Workaphobia (931620) | more than 7 years ago | (#18917407)

> "I don't see how an objective reader of the transcript could conclude that Jacobson is a qualified expert."

Trust me, either I'm objective, or I have a bias against the RIAA, not for it. I'm no Slash-heretic. I read the whole transcript several weeks back when it was current news, and I didn't see anything so horribly wrong as to exclude him from being considered an expert witness. Someone mentioned that his methods haven't been peer-reviewed - fine, maybe that's a good reason, but I'm talking specifically about the testimony he gave.

Jacobson did make a couple of mistakes. The one that comes to my mind is his confusing packets with frames at one point, but I think it was a temporary misspeak at the prompting of a layperson. The rest of his testimony was inadequate for a technical audience, but he was specifically asked to not get technical.

Re:Am I the only one (2, Interesting)

Anonymous Coward | more than 7 years ago | (#18915393)

Do you really think someone actually decided to frame the woman by filesharing wirelessly and changing her MAC address and internal NAT mappings to mask the presence of a wireless router? I don't.

I think another explanation would not be that someone was framing the woman, but was using her computer to serve files (through a security exploit) so that they may escape detection. In fact, with the rise of large "botnets" I bet that this is probably commonplace. I have witnessed this firsthand on my family members' computers. So the question remains what exactly does Mediasentry detect?

Re:Am I the only one (1)

Workaphobia (931620) | more than 7 years ago | (#18917443)

Yes, that is another more plausible scenario, but people didn't settle for the plausible ones, they explored the more exotic and unrealistic explanations in an attempt to discredit Jacobson's generalizations. He was stating the rule, and his enemies were stating the exception.

This touches on a fundamental conflict in technology and computer science: That there is a difference between what is practical and real, and what is mathematically possible. One can prove that it's possible that a number of factors can come together to form an insecurity that can be taken advantage of by a suitably knowledgeable attacker - but this doesn't mean we need to incorporate this possibility into every single discussion about the system in question. It's permissible to ignore these unlikely details and make generalizations that apply to how the system is actually used, depending on the context of the discussion. Trying to explain technology to a layperson is one such situation. Or for another example, I wouldn't use the possibility of an unintentional hash collision as cause for reasonable doubt in a criminal trial.

Dr. Jacobson is alright. Just not as a witness. (3, Interesting)

Anonymous Coward | more than 7 years ago | (#18915915)

I don't doubt that Dr. Jacobson knows what he is talking about. However, he doesn't come anywhere close to meeting the requirements for testifying in court. Check out the second link [blogspot.com] which ultimately goes to the motion to exclude [ilrweb.com] his testimony. The court needs to look at four criteria to determine if the expert's testimony is allowable as evidence:

  1. whether the expert's conclusions have been tested or are testable
  2. whether the expert's conclusions have been published and subjected to peer review
  3. the potential or known error rate
  4. whether the expert's conclusions have gained general acceptance in the relevant scientific community.

By his own admission Dr. Jacobson fails on every count.

We all know there are huge holes in analyzing the evidence. Ms. Lindor can not call an expert to dispute Dr. Jacobson's testimony because his methodology has not been published. it has not been subject to peer review. There has been no formal analysis of the reliability. And his methods have not gained enough acceptance for anyone else to be familiar with them. If Ms. Lindor can not call her own witness she is denied due process. The RIAA may as well just use voodoo science.

If Dr. Jacobson's methodology had been subject to peer review, there would be peer-reviewed articles analyzing the details brought up in the deposition such as IP spoofing, malware, the Kazaa protocol, and MediaSentry.

The motion to exclude brings up a couple other huge problems with Dr. Jacobson's testimony. It's not that Dr. Jacobson is a bad guy or that he is somehow incompetent. The problem is that Dr. Jacobson can not draw any 'expert' conclusions in the legal sense. NewYorkCountryLawyer always puts the word 'expert' in quotes when he mentions Dr. Jacobson. I think that's because Dr. Jacobson is not legally an expert.

Re:Am I the only one (1)

aprilsound (412645) | more than 7 years ago | (#18916155)

I only made it halfway through the transcript, but he was just plain wrong about two things. Firstly, he states that a computer (rather than a network card) is what the IP address is assigned to, when in fact it is the reverse that is true.

Secondly, he states that because the IP Kazaa reports in the IP payload matches the IP header, the computer wasn't NATed. I don't know the Kazaa protocol well enough to say for sure, but I would guess that it would be smart enough to not advertise a private address and determine it's public address by interaction with a peer. It seemed like the defense kept hinting at that, but never made him spell it out explicitly.

Of course, the biggest problem with the testimony is that he was working off of 'evidence' he didn't acquire himself and using methods that he made that and have not been peer reviewed in any way.

Re:Am I the only one (1)

Workaphobia (931620) | more than 7 years ago | (#18917501)

> "Firstly, he states that a computer (rather than a network card) is what the IP address is assigned to, when in fact it is the reverse that is true."

I don't remember him specifically saying that a network card does not have an IP address, but I think I do remember him attributing IPs to computers. I do not consider this to be a mistake because there's no reason why we can't consider a single NIC to be part of a personal computer. Really, why make a distinction between the two unless there's more than one NIC on a single host? It does not affect the equation as far as NAT and other relevant aspects.

> "Secondly, he states that because the IP Kazaa reports in the IP payload matches the IP header, the computer wasn't NATed. I don't know the Kazaa protocol well enough to say for sure, but I would guess that it would be smart enough to not advertise a private address and determine it's public address by interaction with a peer. It seemed like the defense kept hinting at that, but never made him spell it out explicitly."

Er, I believe that's incorrect. I too can't say for sure as I have no familiarity with kazaa, but it would seem to go against common sense to duplicate an external IP address in the payload of the packet, as that information is easily available to the receiver in the normal IP header. Furthermore, I think everything said about this in the deposition suggested that the kazaa data did contain the internal IP address, or else the entire matter would not be relevant. I would expect Jacobson to get this part correct more than any other, because it is directly related to his use of MediaSentry, whereas some other networking details might be outside his domain of work with the RIAA.

> "Of course, the biggest problem with the testimony is that he was working off of 'evidence' he didn't acquire himself and using methods that he made that and have not been peer reviewed in any way."

If, as others have said, the RIAA does not intend to call additional witnesses from Verizon and MediaSentry, then this is indeed a major flaw in their argument. This didn't raise a red flag for me when I read the deposition, because the entire time I was assuming that I was only reading one piece of the puzzle and that they would indeed bring forth other witnesses.

Am I the only one-Unknowns. (0)

Anonymous Coward | more than 7 years ago | (#18918027)

"Er, I believe that's incorrect. I too can't say for sure as I have no familiarity with kazaa, but it would seem to go against common sense to duplicate an external IP address in the payload of the packet, as that information is easily available to the receiver in the normal IP header. Furthermore, I think everything said about this in the deposition suggested that the kazaa data did contain the internal IP address, or else the entire matter would not be relevant. I would expect Jacobson to get this part correct more than any other, because it is directly related to his use of MediaSentry, whereas some other networking details might be outside his domain of work with the RIAA."

Well the protocol is proprietary and it has been partly reverse-engineered, so I'd be careful with the "common-sense" aspect until one understands the methadology behind the entire protocol.

Re:Am I the only one (3, Informative)

87C751 (205250) | more than 7 years ago | (#18918249)

I don't remember him specifically saying that a network card does not have an IP address, but I think I do remember him attributing IPs to computers. I do not consider this to be a mistake because there's no reason why we can't consider a single NIC to be part of a personal computer. Really, why make a distinction between the two unless there's more than one NIC on a single host? It does not affect the equation as far as NAT and other relevant aspects.
(note: I read the whole transcript)

You missed the part(s) where he continued to state that the public IP address identifies one, and only one, computer. Even after admitting the existence of NAT, he kept returning to this assumption.

Re:Am I the only one (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18916163)

Your comment is a textbook exercise in fallacious reasoning and is off-topic. You go on and on about things that are never mentioned in the motion . The post is about the motion . And the motion is not about Dr. Jacobson's personality or mine, it's not about my questioning him on the hard drive inspection or about my questioning about his refusal to admit he knows the words 'inculpate' and 'exculpate'. It is not about the statutory damages unconstitutionality defense, or any of the other red herrings you raised which are never mentioned, and are not part of, the motion. It is not about any "screwups" in his testimony.

If you were to actually read the motion you would see that it is not about the entire deposition, it is about one narrow aspect of the deposition: the witness's testimony establishing that, as a matter of law, his testimony cannot satisfy the "reliability" factors set forth in the Daubert case and Federal Rule of Evidence 702, which are a prerequisite to admissibility of expert testimony.

There is not a word in your very strange post on that subject.

Re:Am I the only one (1)

Workaphobia (931620) | more than 7 years ago | (#18917533)

Correct. My post was not in direct response to anything in this article and was not supposed to address his eligibility as an expert witness based on the legal criteria. I am indeed off-topic. What I was addressing was how easily people seem to dismiss him as an expert (in the informal sense) based on his answers in the deposition. I am limiting my discussion of him to that deposition because I know nothing of the man or his status in this case besides what I read in it.

Re:Am I the only one - ARE YOU AWARE...? (1)

Nom du Keyboard (633989) | more than 7 years ago | (#18916175)

some of Mr. Beckerman's more irrelevant questions - for example, the ones targetting his vocabulary

Are you aware that some of the words Mr. Beckerman ask him about are in the Code of Ethics of the organization he claims certification membership in?

I thought not.

/. supports slimy lawyers. (-1, Troll)

Anonymous Coward | more than 7 years ago | (#18914795)

This is a joke. More guilty people trying to get off the hook using slimy lawyers. and /. supports it.

Re:/. supports slimy lawyers. (2, Funny)

Paradise Pete (33184) | more than 7 years ago | (#18915001)

This is a joke. More guilty people trying to get off the hook using slimy lawyers. and /. supports it.

Since you obviously have evidence for your well-considered conclusion, I don't see why you don't give the RIAA a call and offer your services. I suspect they'll be looking for someone pretty soon.

/. supports biological agents. (0)

Anonymous Coward | more than 7 years ago | (#18915285)

"Since you obviously have evidence for your well-considered conclusion"

Well I don't know about the other AC, but from were I stand, so far the truth of the matter hasn't been proven either way (otherwise we wouldn't be here discussion the issue). The problem however with slashcourt is that innocence or guilt has been predetermined (apparently our court doesn't have a 'presumed innocence' clause). If slashdot is going to be that "expert witness" that the legal system is suppose to tap into? Then it's going to have to be held to a higher standard than the one it's demonstrated so far.

Re:/. supports biological agents. (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18916279)

The defendant in this case just happens to be one of the few people in this country that have never even used a computer.

I hope that tells you something about her guilt or innocence.

Re:/. supports biological agents. (0)

Anonymous Coward | more than 7 years ago | (#18918103)

"The defendant in this case just happens to be one of the few people in this country that have never even used a computer."

But owns one? Seems pointless to have one unless there's some other family members not being mentioned?

Routine Motion (-1, Flamebait)

Anonymous Coward | more than 7 years ago | (#18915247)

Now this is posting a story about a routine motion in a trial. The defense is challenging the status of an expert witness. In other words, nothing to see here. Move along.

But yet.. (3, Insightful)

wanax (46819) | more than 7 years ago | (#18915665)

It's still very much news for nerds, stuff the matters. The the RIAA cases deal with an activity that many of us have participated in the past, present or future, and regardless of your opinion of the state of copyright law. It's important to know how one might respond if served.

More importantly though, these cases indirectly impact many other activities, many of which I think the great majority of the community feels are not unethical, which involve limits of copyrights, security, DRM, etc.

And speaking as somebody who's a US citizen who knows a fair amount as an amateur about the law and constitution as written documents, these cases, as well as the SCO entries, are certainly educating me greatly about how the law is actually practiced outside of my personal reading of it. Routine trial motions are relevant when they deal with something that is important to track, especially when most of the community doesn't know what's a routine motion and what isn't. I personally hope that at the very least everybody from the US learns from these, since being able to describe with accuracy and detail the problems we have with the current state of the laws is the only way that all the letters, e-mails etc to legislators are going to have any measurable impact.

Re:Routine Motion - but extremely important! (1)

Alter_Fritz (1087847) | more than 7 years ago | (#18915891)

While such a "in limine" motion might be all day lawyer routine motion business as usual...

THIS special one is very important for the overall cause in the greater war.
If it will be granted, then would that mean that RIAA can pack in with their methodology since they have nothing else to offer which comes even close to evidence usable in a real Court of Law

That's why THIS routine motion is /. report worthy IMO.

And Ty (the lawyer that made it) was so smart to not cite any other case in his letter as example why their motion should be granted.
He cited cases and used quotes that were made by those 2 NY judges that are responsible for this case too!

Re:Routine Motion (5, Insightful)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18916315)

This sounds like an RIAA troll to me.

This was the first time in 25,000 cases that the RIAA's expert was deposed.

The RIAA says he is their only witness to copyright infringement.

They used the same expert in all the cases.

And it turns out his testimony would be inadmissible at trial.

I think that's pretty important and not at all "routine".

In fact in 32 1/2 years of working in the litigation field, I've never even heard of anything quite like this.

Re:Routine Motion (1)

ookabooka (731013) | more than 7 years ago | (#18916751)

Well, If he was the same expert witness used in many cases, could this in some way give ground for appeal on the other cases? (IANAL)

Re:Routine Motion (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18918499)

His testimony in the Lindor case will wind up burying him in every case where the defendant has the ability to fight back, which sadly is almost never the case.

Why exclude? No real problem with his testimony. (1, Flamebait)

The Rizz (1319) | more than 7 years ago | (#18915853)

I don't see what the problem with his testimony is. He stated exactly what he was looking for, and exactly what he found within those parameters. Frankly, the defense attorney grilling him was being a complete dick for the most part by repeatedly asking him to verify something out of his area that he was never supposed to investigate. He freely admitted that any identification of who that IP address belonged to was not done by him, and he had no way to verify it; his testimony was about what IP was being used for filesharing, not who that IP belonged to.

Really, I'm surprised the defense isn't begging for him to be put up on the stand; from what I read I'd say that his testimony does more for the defense than the prosecution:
1) He states that the file was sent to that IP, but there is no way to know what computer actually received it. (helps with reasonable doubt)
2) He states that from the information obtained from her hard drive, that computer (or hard drive, at least) is definitely not the one used for file sharing. (The way this damages the prosecution's case should be obvious.)

The only problems I've seen anyone have with his testimony are that he's relying on the data he's given to be accurate (HTF else is he supposed to operate?), that he made a few minor errors in his testimony - i.e. mixing up some terms (this happens to people, and unlike a written deposition he cannot go back over it for mistakes before sending it in), and that he is inaccurate with some of what he says while trying to explain complex technical details to a layperson (everything taught to laypeople is like this; generally correct, even if not correct in specifics).

Going over his testimony, I did not see anything he actually did wrong; everything he stated was correct and he drew no conclusions that were not supported by the data he was given.

Re:Why exclude? No real problem with his testimony (1)

LouisJBouchard (316266) | more than 7 years ago | (#18915981)

Real simple,

1) Don't refute testimony, case goes to court, defendant wins but has to pay own lawyer fees because it is assumed that UMG filed the case in good faith

2) Refute testimony, force UMG for dismiss with prejudice, defendant gets lawyer fees paid for by UMG because case was not filed in good faith (witnesses did not have enough evidence to file case).

Seems like if I were defendant (or even defendant's lawyer), I would prefer 2. UMG has more money to pay lawyer than defendant.

How do you figure? (1)

The Rizz (1319) | more than 7 years ago | (#18916065)

Which would you think shows bad faith more:
1) "The prosecution's own expert witness says the defendant's computer was not used for filesharing, but they brought this case anyway."
2) "Well, we removed all evidence due to technicalities. The prosecution couldn't have known this would happen until after the suit was filed."

Re:How do you figure? (1)

maciarc (1094767) | more than 7 years ago | (#18916559)

2) "Well, we removed all evidence due to technicalities. The prosecution couldn't have known this would happen until after the suit was filed."
More like --> 2) "Their 'expert' is, and in every case thus far has been using guesswork and that's all they have. Without facts this case never should have been brought. Make them pay for the lawyer I had to hire because they picked my name out of the phone book to extort money from."

Re:How do you figure? (1)

The Rizz (1319) | more than 7 years ago | (#18916781)

I'd say it's more that they did have facts, but not enough of them. I still maintain that their expert was not using guesswork; he did the investigation put in front of him, and did it adequately. The fault lies not with him - he worked with what he had and his only assumption was that he was given accurate information to work with. The fault lies with the lawyers who did not adequately prove the information he was given actually was accurate, leading it to be "garbage in -> garbage out" situation.

Regardless, your idea on the matter does sound reasonable. Since it looks like that's where this case is heading, I certainly hope it sounds reasonable to the judge as well.

Re:Why exclude? No real problem with his testimony (1)

Alter_Fritz (1087847) | more than 7 years ago | (#18916031)

the problem with it is that he has NO clue about the stuff he was designated by RIAA to testify about.
Having no clue about what you testify as an expert is what makes it inadmissible.

Defendant's lawyer explains it this way:
Although Dr. Jacobson proposes in the report to testify as to "the procedures used
and results obtained by MediaSentry," he displayed utter ignorance as to those
procedures at his deposition. He admitted that he does not know what processes,
procedures or software were used by MediaSentry. (T 31). He does not know if the
methods used by MediaSentry have ever been "tested by any testing body." (T 42). He
does not know if MediaSentry's methods have ever been subjected to any form of peer
review; as far as he know, MediaSentry itself is not peer-regulated. (T 42, 43). He does
not know if MediaSentry's methods have been published. (T 42). He does not know if
there is a known error rate in MediaSentry's methods. (T 43). He does not know of any
standards and controls over MediaSentry's methods (T 43). He does not know if
MediaSentry's methods have generally been accepted in the scientific community. (T
43). In evaluating all of the reports and materials generated by MediaSentry (including
the screenshots, system logs and user logs that are attached to the complaint and
supposedly form the basis of its allegations) and the purported data contained in those
documents, Dr. Jacobson assumed that they were accurate. (T 43).
Clearly, the scientific reliability of MediaSentry's methods and materials can only
be established by expert testimony.
[...]
In summary, Dr. Jacobson is not qualified to opine about whether the uploading
and downloading alleged in the complaint actually occurred or who is responsible for it if
it did.

( http://www.ilrweb.com/viewILRPDFfull.asp?filename= umg_lindor_070426MTRtoMagisInLimineJacobson [ilrweb.com] )

HTH

Re:Why exclude? No real problem with his testimony (4, Insightful)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18916049)

You do not understand the law, or what the case was about, or what the deposition was about, or what the motion is about. The deposition was about what his methods were, and whether they were sufficiently "reliable" under the Daubert line of cases. His deposition testimony negated any possibility of his testimony being admissible at trial because he flunked all of the "reliability" standards.

Your comment makes no sense. He was not "supposed to investigate" anything; he was "supposed to" testify about the investigation that was done three (3) years earlier.

As to whether he was "out of his area", he probably was... but that's not my fault, that's his, for pretending to be something he's not, and it's the RIAA's, for inducing the man to pretend to be something he's not. While I may have been asking him things he couldn't answer, they were not irrelevant to his report and his proffered testimony; they were directly relevant to what he falsely claimed.

I'm sorry to have to tell you that your knowledge of law is quite limited. There is no "prosecution"; this is a civil case. There is no concept of "reasonable doubt" in a civil case.

Yes his testimony is helpful to defendant. But this is not a game; this is a federal trial where one side is suing someone for tens of thousands of dollars. Under clear standards of law his testimony is inadmissible and must be excluded. I would be a pretty dumb lawyer if I allowed the RIAA to bring this guy anywhere near a courtroom.

Re:Why exclude? No real problem with his testimony (1)

The Rizz (1319) | more than 7 years ago | (#18916151)

Your comment makes no sense. He was not "supposed to investigate" anything; he was "supposed to" testify about the investigation that was done three (3) years earlier.
You're arguing phrasing here; when I said he was supposed to investigate something, I obviously meant that the investigation was for later testimony given the context.

As to whether he was "out of his area", he probably was... but that's not my fault, that's his, for pretending to be something he's not, and it's the RIAA's, for inducing the man to pretend to be something he's not.
I still don't see where he pretended to be something he's not. He never claimed to have internal knowledge of how the IPs were traced to a particular person (or, if he did, I missed that part). I am only saying that I don't think he's as much at fault as the masses are claiming he is; the lawyers are the ones who decided to not bring in testimony from the people who did the rest of the investigation. As long as he doesn't claim he knows for certain anything outside what he himself investigated, and only says "that other stuff is just what I was told", I don't see why that is supposed to make him look bad.

I'm sorry to have to tell you that your knowledge of law is quite limited.
I never claimed it wasn't. I'm not a lawyer and never claimed to be one.

There is no "prosecution"; this is a civil case. There is no concept of "reasonable doubt" in a civil case
Fine then, how about "claimant"? As for "no reasonable doubt" in civil cases, I did know that - I was not using it as a legal term, but instead as an easy way to reference that it helps the defense. Maybe I didn't have the specific legal terms correct, but everyone knows what I meant. You could've been nice and simply corrected me, but instead you attack my position based on nitpicking terminology.

Yes his testimony is helpful to defendant. But this is not a game; this is a federal trial where one side is suing someone for tens of thousands of dollars. Under clear standards of law his testimony is inadmissible and must be excluded. I would be a pretty dumb lawyer if I allowed the RIAA to bring this guy anywhere near a courtroom.
Perhaps. As I said before, I am not a legal expert, and don't know almost anything of this case beyond this particular deposition. I was only commenting that his testimony helped the defense's case more than the prosecution's (yeah, yeah, terminology - see above). Perhaps it is better to exclude his testimony altogether - I do not know enough about the case as a whole to determine that - that's why my title was "Why exclude?" -- it's a question.

Re:Why exclude? No real problem with his testimony (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18916213)

This is what you said about me for doing my job:

the defense attorney grilling him was being a complete dick

Then when I correct your misuse of legal terms, you say

You could've been nice and simply corrected me, but instead you attack my position based on nitpicking terminology.

Sorry I'm not as

nice
as you are.

Re:Why exclude? No real problem with his testimony (-1, Flamebait)

The Rizz (1319) | more than 7 years ago | (#18916713)

This is what you said about me for doing my job:
the defense attorney grilling him was being a complete dick
Well, quite frankly, you were being a complete dick. I didn't know if that was because you're actually a dick in real life, or if you were being a dick in order to upset the person you were questioning and make him nervous (i.e. legal strategy). However, you were rather dickish in both your posts responding to me as well, so I think I've decided which is the correct option.

Then when I correct your misuse of legal terms, you say
Actually, you never did correct me. You only said I was wrong. In order to correct something you must also say what is right. That is the type of thing that has led me to label you as a dick; your holier-than-thou attitude with regards to other people not knowing every little bit of legal terminology. You know what they're saying, and you know what is meant, but you find it necessary to ridicule them for it and then refuse to even give an answer as to what the correct term should be.

Quite frankly, I think your complete dickishness can be easily summed up by looking at the deposition transcript [groklaw.net] from page 26, line 24 to page 28, line 11. You spend nearly two pages making him feel like an idiot because he doesn't happen to know the meaning of one word that is almost never used outside a courtroom. You can't just restate the question, nor can you just define the word for him. Instead, you go on and on and on with the express purpose of making him feel like dirt and stroking your own ego just because you know the meaning of a word he doesn't.

(FYI: "Dick" is not the term I originally typed in any of my posts. I was just being polite. And believe me, it's more polite than someone with your attitude deserves.)

Re:Why exclude? No real problem with his testimony (0)

Anonymous Coward | more than 7 years ago | (#18917259)

Dude, you're an asshat.

Re:Why exclude? No real problem with his testimony (0)

Anonymous Coward | more than 7 years ago | (#18917649)

Wow. I've never seen anyone stand up to NYCL like that before. Well done, friend.

NYCL, we appreciate the fight your putting up against the RIAA on behalf of all the victims of its meritless lawsuits, but that doesn't give you an immunity to criticism. If you were not in the position you're in now, I think you might find that more people would have the guts to call you out for your somewhat inflammatory debating tactics

Re:Why exclude? No real problem with his testimony (1)

bzipitidoo (647217) | more than 7 years ago | (#18916749)

Which is better? a) let the expert witness testify because you know he's no expert and will only make the side he's trying to help look stupid, or b) show beforehand that he's not competent, and on that basis don't let him testify. Oh, and use this in court to demonstrate that the RIAA doesn't vet their "experts". The grandparent is thinking a) is maybe the better course of action. I'd definitely go with b). Why wait to demonstrate their stupidity? So you can make them look even dumberer? When you've beat someone in a chess game but they won't resign, do you finish them as quickly and simply as you can, or toy with them? You finish them quick. If you mess around, there's always the chance you'll make some horrible mistake, and lose. Messing around sure isn't going to make your chess play look more brilliant.

The big "dick" part I saw was this:

Q. Have you formed an opinion as to whether Marie Lindor personally uploaded any copyrighted files to anyone?

A. The computer whose IP address has been identified as being registered to Ms. Lindor has been shown to have made songs available, copyrighted material available to the internet community through peer-to-peer software.

What kind of crap answer is that? The "expert" could've just said "no". Everything else in that deposition makes it painfully clear the expert simply hasn't enough info to say one way or the other whether the defendant committed the particular crime. But what does the expert do? Barfs out a spurious accusation. His answer made about as much sense as this: "Q: Do you have an opinion about whether Ms. Lindor exceeded the speed limit?" "A: A car once registered at a street address once occupied by Ms. Lindor has been shown to have exceeded the speed limit" as if people never change addresses or cars, or sometimes let others drive their cars, or have their cars or license plates or identities stolen, or have to straighten out incorrect records, typos, or are recorded by poorly designed or maintained equipment that gives inaccurate measurements, etc. So, no, I don't agree with the GP that everything the expert said was correct or factual. That was a "dick" answer that expert gave. Why the heck didn't he just answer "no"?!? And that is just one of many real problems with his answers.

Re:Why exclude? No real problem with his testimony (1)

Workaphobia (931620) | more than 7 years ago | (#18917667)

Ah, that was a fun part of the deposition. Yes, Mr. Beckerman was right to call him out on that and ask him repeatedly for an answer. The downside was that he did the same thing at other times when Jacobson was actually answering a malformed technical question as best as he could, and it didn't produce the result Beckerman was looking for.

Re:Why exclude? No real problem with his testimony (1)

Gorshkov (932507) | more than 7 years ago | (#18916337)

I would be a pretty dumb lawyer if I allowed the RIAA to bring this guy anywhere near a courtroom.

Personally, I don't think that letting him near a courtroom would make you a dumb lawyer - I think it would make you dumb, PERIOD.

Even without any technical knowledge - just analyzing his statements using logic - there are so many inconsistencies in what he says that it is impossible to conclude that he has any "expert" knowledge even within the field he's claiming to be an expert in .... his confusion regarding the whole MAC/IP thing, and his meanderings around the whole one computer/router/multiple computers connected to an IP is so severely contradictory that it's sad.

Now - if you have any domain knowledge regarding the technical issues themselves, it's even worse. I wasn't laughing while I read the deposition - my jaw was sitting on my lap, and it stayed there during the whole read. I haven't read worse fiction since I tried to read ....... well, I can't think of anything worse. Sorry.

And, not being a lawyer (dumb or otherwise), NYCL, I'm sure you'll correct me if my summary is wrong, but this is what I get out of it:

1) The facts he is supposed to be testifying about are not, as far as the court is concerned, facts, because they have not been established via any known, vetted, and peer-reviewed procedure generally agreed upon by practitioners in the area.

2) Since there are no facts to testify ABOUT, his testimony is invalid/inadmissable and a waste of time.

3) Since his testimony is inadmissible, UMG has no expert testimony - they have no "facts" that can be used to identify Ms Lindor.

4) Since they cannot identify Ms Lindor, there is no basis for the suit.

5) Since the "facts" used in ALL cases by the RIAA are collected in the same manner, granting this motion would have the effect of preventing the same methods being used in any OTHER cases .... effectively ending these lawsuits as they are now (until, of course, they are independently analyzed and verified ... and good luck on that

How's that?

Re:Why exclude? No real problem with his testimony (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#18916391)

His testimony is inadmissible because it totally fails the "reliability" tests established by Daubert and Fed. R. Evid. 702. I have never heard of an expert failing so miserably.

Re:Why exclude? No real problem with his testimony (1)

gdrumm0356 (1072576) | more than 7 years ago | (#18917391)

Right out of my Analytical Troubleshooting Techniques class,
which is unfortunately not taught anymore.

I use no sharing software of any kind, other than on my local (private) network,
which is only for data not media, but but I would definitely want your services
if anything like this bogus lawsuit happened to me!

Please actually read it or learn about computers (2, Informative)

jgoemat (565882) | more than 7 years ago | (#18917249)

You say:

He freely admitted that any identification of who that IP address belonged to was not done by him, and he had no way to verify it; his testimony was about what IP was being used for filesharing, not who that IP belonged to.
...
The only problems I've seen anyone have with his testimony are that he's relying on the data he's given to be accurate (HTF else is he supposed to operate?), that he made a few minor errors in his testimony - i.e. mixing up some terms (this happens to people, and unlike a written deposition he cannot go back over it for mistakes before sending it in), and that he is inaccurate with some of what he says while trying to explain complex technical details to a layperson (everything taught to laypeople is like this; generally correct, even if not correct in specifics).
His report states the following:

15) I will testify to the procedures and results obtained by MediaSentry coupled with the information complied by defendant's ISP to demonstrate the defendant's internet account and computer were used to download and upload copyrighted music from the internet using the KaZaA peer-to-peer network.

He can't do that. It's impossible. there is no way he can use those materials to prove that a computer owned by the defendant was used. Throughout his deposition he gives misleading and weasly answers. "I'll show the defendant's computer was used", yet he cannot and in fact found no evidence on her hard drive. He's getting paid by the RIAA, but his duty as an expert is to give his accurate interpretation of the evidence. We've all seen on TV (and in the SCO vs. IBM litigation) that some experts will say anything for money. This appears to be another case of that. He not only makes "technical" mistakes in attempting to describe it to a layperson, he makes glaring errors and omissions to further his client's case.

His report has this error shortly after his credentials:

The Internet is a collection of interconnected computers or network devices. In order to be able to deliver traffic from one computer or network device to another, each computer or network device must have a unique address within the Internet. The unique address is called the Internet Protocol (IP) address. This is analogous to the postal system where each mail drop has a unique address.

He doesn't mention NAT or proxy servers at all. There can actually be many computers sharing a single public IP address. NAT (Network Address Translation) is when one computer or device separates two networks. On one side of the device, computers can have different addresses. When they want to communicate to the other side of the device, they use the device as a gateway. The NAT device then uses it's own IP address on the other side. There can be many computers on the "internal" side, but they all look the same to computers or devices on the other side of the NAT device. Imagine you live in a house with two friends, Joe and Moe. Joe gets a subscription to Scientific American and Moe gets a subscription to Playboy, but they only fill out the address. When the mail comes, you give Joe the Scientific American and Moe the Playboy because you know they requested them. The magazines only know someone at your address has a subscription. Even though there are three people living at that address, the magazines can't tell.

Proxy servers can also be used to mask the final destination. Think of it almost as a post-office box. Many people can rent PO boxes from one address. They come to that address to get their mail, then they take it home to their personal address. The place with the PO Boxes might not even have your personal address, like a proxy server might not store logs. This is especially the case when someone with nefarious intent got you to install something on your computer without your knowledge to make it act as a proxy server. There are whole "nets" out there where people bounce information from hacked computer to hacked computer to hide their tracks. It's like if you had a PO box to deliver your mail to, but you had someone pick the mail up regularly and deliver it to a different PO box at a different post office, and someone to do the same again and again until it finally arrived at the post office box that you check where you finally take it home. The way the internet works, you can't even tell it's a PO Box, it just looks like another address to you. It's like a neighbor boy gets a subscription to Playboy at your address, then comes and steals it on the day it is delivered each month before you get home from work.

It's like this guy is trying to say that he delivered a pizza to ME because he did a property search and saw that I am the owner of the property. I could A) have a roommate that ordered the pizza, B) be renting the property to someone else, C) have been out and had the babysitter order pizza or D) have been on vacation and had someone house-sitting. This is especially relevant here where he found no evidence on the defendant's hard drive, yet he claims that the defendant's computer was the one used. It's like he says he delivered a pizza to me because I own the property, but not only can he not pick me out of a lineup, but he flatly says I don't look like the person that answered the door. Although it may be the most logical conclusion, one doesn't have to follow from the other. Heck, it could even be the case that my neighbor called in an order to my address and met the pizza guy in the driveway (like someone leeching off your wi-fi).

If I were the judge, I would throw out his entire report and testimony. He refuses to answer yes/no question and instead opines on other matters. He is clearly biased to report what his client wishes him to report and nothing more. Imagine being sued for paternity. The plaintiff does a DNA test that shows you weren't the father, yet the case continues. The expert that did the DNA test didn't save the results because they didn't show you were the father, and still insists that he can show you are the father because you admit to sleeping with the mother around the time she got pregnant and the baby looks like you.

Re:Please actually read it or learn about computer (1)

Workaphobia (931620) | more than 7 years ago | (#18917585)

> "He can't do that. It's impossible. there is no way he can use those materials to prove that a computer owned by the defendant was used."

By that I think he meant that he could demonstrate that she did not have a wireless router, and therefore that the computer belonged to her. Yes, a friend could have come by and plugged in, but ruling out wireless squatters as a scapegoat is a significant achievement for the plaintiff.

> "His report has this error shortly after his credentials: [...] He doesn't mention NAT or proxy servers at all."

That's like saying Newton's laws of motion are errors because of relativity. There are different levels of detail we can go into when discussing these things, and since he started with a postal analogy I think it's safe to say that NAT, proxies, etc., are a little bit beyond the scope of this introductory explanation. If you want to say he was imprecise or generalizing, fine, but he was not "wrong".

> "The expert that did the DNA test didn't save the results because they didn't show you were the father [...]"

Why on Earth should the expert for the plaintiff be required to save the results of the test? Let him do whatever the hell he wants to with his test, if he has no further use for it then he can throw it out for all I care. I have my own copy of the test results and the source material after all.

Re:Why exclude? No real problem with his testimony (1)

Kijori (897770) | more than 7 years ago | (#18917871)

The questions about areas he hasn't personally analysed aim to show that he hasn't been diligent enough to produce 'expert testimony'. Specifically, according to Federal Rule of Evidence 702, expert evidence is admissible only if

(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods
In this instance, the facts upon which he is basing his testimony amount to an assumption that the ISP and MediaSentry information is perfectly accurate, and his results are the product of a proprietary, non-peer-reviewed procedure, using proprietary software and with no known error rate and no evidence to support its accuracy. These questions aren't irrelevant, they aim to establish that the expert's evidence is inadmissible.

But the Testimony was Good for Lindor (0)

Anonymous Coward | more than 7 years ago | (#18916247)

If you have read the testimony through to the end, you can clearly see that
  1. Jacobson found no evidence of music or filesharing on the hard drive.
  2. Jacobson was forthright about his testimony and that he only testified as to what the plaintiff requested.
  3. The defendant's lawyer was being a dick--not Jacobson.
The only real question I have is why is UMG continuing the suit? The evidence doesn't support their case as described by their own expert witness. The defendant should be thrilled to have the oppositions expert testifying on their behalf.

Open Source MediaSentry? (1)

jgoemat (565882) | more than 7 years ago | (#18917165)

MediaSentry is the software that detected the sharing of files and provided the initial IP address that was used to subpoena the account information. It's list of files available and the IP address of the computer that was sharing them is central to the case. In Florida [lockergnome.com] , drunken driving cases have been thrown out because the manufacturer of the breathalyser wouldn't disclose the source code or internal workings. I think the defendant should have a right to inspect the MediaSentry source code. Otherwise they could A) purposely make it output certain (or random) numbers or B) have a bug in their application that would lead to improper identification. I don't think this guy even actually used MediaSentry, he was simply provided with logs from MediaSentry that were accumulated by someone else.

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