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RIAA Expert Witness Called "Borderline Incompetent"

kdawson posted more than 6 years ago | from the tell-us-what-you-really-think dept.

The Courts 170

NewYorkCountryLawyer writes "Prof. Johan Pouwelse of Delft University — one of the world's foremost experts on the science of P2P file sharing and the very same Prof. Pouwelse who stopped the RIAA's Netherlands counterpart in its tracks back in 2005 — has submitted an expert witness report characterizing the work of the RIAA's expert, Dr. Doug Jacobson, as 'borderline incompetence.' The report (PDF), filed in UMG v. Lindor, pointed out, among other things, that the steps needed to be taken in a copyright infringement investigation were not taken, that Jacobson's work lacked 'in-depth analysis' and 'proper scientific scrutiny,' that Jacobson's reports were 'factually erroneous,' and that they were contradicted by his own deposition testimony. This is the first expert witness report of which we are aware since the Free Software Foundation announced that it would be coming to the aid of RIAA defendants."

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I'm not at all surprised (5, Insightful)

Corpuscavernosa (996139) | more than 6 years ago | (#22565254)

When you bring so many suits on shaky legal ground, the only way to support them is with shaky "expert" testimony.

Feel free to substitute "shaky" with "unfounded".

Re:I'm not at all surprised (3, Insightful)

InsaneProcessor (869563) | more than 6 years ago | (#22565478)

Fell free to substitute "shaky" with incompetent.

Re:I'm not at all surprised (3, Insightful)

cthulu_mt (1124113) | more than 6 years ago | (#22565550)

As mush as I loath the RIAA tactics an "expert" witness disagreeing with the other sides "expert" witness is not Earth shattering.

IANALBIWL&O

Re:I'm not at all surprised (1)

wickedskaman (1105337) | more than 6 years ago | (#22566108)

BIWL&O? PHMOINVO. (Please help me out, it's not very obvious)

Re:I'm not at all surprised (2, Informative)

CoderBob (858156) | more than 6 years ago | (#22566156)

But I Watch Law & Order.

Re:I'm not at all surprised (4, Interesting)

LrdDimwit (1133419) | more than 6 years ago | (#22568370)

This is the case where the attorneys asked the Groklaw (and later Slashdot) communities to assist in picking apart the declaration. I read the RIAA's "expert"'s papers. He maintains she downloaded the material using Kazaa, yet admits he found no evidence through forensic examining of Windows that Kazaa was or had ever been installed. He made no effort to explain this discrepancy -- indeed, he seemed oblivious to the discrepancy's existence.

Either she's pulled a very convincing job of doctoring the evidence (involving tools to clean the various installation footprints that were not found), or the expert testimony is worthless. Personally, I lean towards "boilerplate" as an explanation for how such deficient 'evidence' got filed -- they seem to have just filled in sections of the declaration with rote repetition of generic stuff they probably say about everybody.

He should know better! (5, Informative)

Anonymous Coward | more than 6 years ago | (#22566068)

Look at the courses he teaches [iastate.edu] . He should know better than to present something like this to the court.

Am I misremembering, or was he the one who in one deposition that he worked with some company that sold P2P-filtering software that the RIAA is trying to peddle to universities? The RIAA is even trying to turn schools into copyright cops [arstechnica.com] , with the linked story being a Tennessee copy of some federal legislation that would do the same thing. Except that the TN legislation more explicitly threatens their funding if they don't "do something" about student piracy.

Re:He should know better! (1)

CorSci81 (1007499) | more than 6 years ago | (#22566736)

Yes, I believe you're correct. That he's the RIAA's "expert" witness makes me very glad my major from Iowa State is in physics and not CS. Even still his presence at my alma mater makes me feel somehow... dirty. After reading his earlier depositions I would feel shortchanged if he had been the instructor for any of my classes. I wonder if this will in any way impact his career in academia. It would be wonderful to see students boycotting his classes or something.

Re:He should know better! (1)

LordKazan (558383) | more than 6 years ago | (#22566816)

How do you think those of us still here feel?

thank $DIETY he isn't a computer science professor.

Re:He should know better! (1)

CorSci81 (1007499) | more than 6 years ago | (#22567254)

My apologies, I just noticed he's actually CprE. When I first saw his name come up I thought it was the same Dr. Jacobson who had been my "advisor" when I was still AeroE until I looked him up. Fortunately that's not the case. I should ask some of my old friends from that program if they ever had him as an instructor. As an alumni, I would have to say it would be completely irresponsible of any of you still there to visit any mischief on Dr. Jacobsen (say organized protest/boycotts) ;)

Re:He should know better! (0, Flamebait)

MacColossus (932054) | more than 6 years ago | (#22567802)

The RIAA is guilty of forceable financial sodomy. A judges lack of understanding of technical matters and the common person's inability to afford a legal defense are their GHB and ruphie.

Re:He should know better! (1)

Xanius (955737) | more than 6 years ago | (#22568200)

For the amount of money he's probably getting from the RIAA I expect nothing less than the most magical bullshit to ever spew from someones mouth.

That or the RIAA is really getting what it pays for and they pay him in sodomy tokens.

Re:He should know better! (4, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#22568720)

Look at the courses he teaches. He should know better than to present something like this to the court. Am I misremembering, or was he the one who in one deposition that he worked with some company that sold P2P-filtering software that the RIAA is trying to peddle to universities?
That's him all right. Got Ohio University to cough up $76,000 plus 16,000 per year to his 'business partners' for the 'Audible Magic' software.... and suddenly the RIAA subpeonas went away. See my article "Ohio University Pays Dr. Doug Jacobson's company $60,000 Plus $16,000 a year in "maintenance"; suddenly RIAA letters stop!" [blogspot.com]

Re:I'm not at all surprised (0)

Anonymous Coward | more than 6 years ago | (#22566424)

Exactly. Reminds me of the "experts" that appear on television to any given topic that's on.

Re:I'm not at all surprised (1)

oliphaunt (124016) | more than 6 years ago | (#22567776)

substitute "shaky" with "unfounded"

or "perjured and sanctionable"

I'd be willing to wager this means Ms. Lindor will be entitled to have the RIAA pay her attorney's fees.

Tsk, tsk (1, Interesting)

Anonymous Coward | more than 6 years ago | (#22565256)

Look, I'm no fan of RIAA, but do we really want this kind of childish name calling going on in our court system? I mean, really. Dr. Jacobsen's background speaks for itself. He is a widely respected scientist with years of experience in real world forensics investigation. Trying to win your case by smearing his name and reputation will likely backfire with the judge.

Re:Tsk, tsk (0)

Anonymous Coward | more than 6 years ago | (#22565406)

You don't have to be a fan, just a shill.

Re:Tsk, tsk (3, Insightful)

Anonymous Coward | more than 6 years ago | (#22565416)

Actually, I thought he was being quite nice. The way I see it, he wanted to say "willfully" in his paper but settled for the more polite term "borderline" instead. If his report is as strong as it sounds, the judge will fill in the blanks. =P

Re:Tsk, tsk (5, Informative)

Chris Burke (6130) | more than 6 years ago | (#22565426)

It's not childish name calling if it's his summation of actual flaws in the expert's methodology, which given that he lists specific failings, it sounds like it is.

Calling in your own expert to criticize the work of the other side's expert is bog-standard legal strategy. If he can expose actual flaws in the other expert's testimony, and if they are indeed as severe as suggested, then this will do anything but backfire.

Re:Tsk, tsk (5, Funny)

irenaeous (898337) | more than 6 years ago | (#22565482)

Gosh, your right. He isn't stupid. How about just calling him a whore?

Re:Tsk, tsk (0, Offtopic)

Anonymous Coward | more than 6 years ago | (#22565772)

Gosh, your right. He isn't stupid. How about just calling him a whore?

Hola, yo hablo Español como lengua materna.

It is "you are" right. Your is a possessive pronoun, you're is the contraction of "you are".

Danke schön. Alles gute?

Re:Tsk, tsk - technicality vs grammar nazi (1, Funny)

Anonymous Coward | more than 6 years ago | (#22567876)

Common slang is "my bad" to indicate that someone takes blame for an error. The opposite would logically be "your bad" and the contra-positive would be "your right" as it was potentially used here. To paraphrase the original, "Gosh, that correct statement that belongs to you!"

Iffin eye no y its rong, aint it steal rite?

Re:Tsk, tsk (1, Funny)

Anonymous Coward | more than 6 years ago | (#22568472)

It's "Danke Schoen" not "Danke Schon" and YOUR not supposed to be here.

Re:Tsk, tsk (5, Insightful)

liquidf (1146307) | more than 6 years ago | (#22565534)

he's calling his work borderline incompetence, and specifically his work for the RIAA in these cases. then he goes on to say exactly what parts he is looking at to come to the conclusion that his work demonstrates incompetence. i read the document, not thoroughly, but many of his points are valid. jacobsen claims he knows the methods and software mediasentry uses, then testifies he really does not. same for verizon and IP address distribution/allocation/whatever. to claim a vast, detailed knowledge about something, but only display the knowledge you really have and blanket it under a broad, generic definition of how something really is and/or works (then base a lawsuit around it!) is demonstrating [borderline] incompetence

Re:Tsk, tsk (4, Insightful)

Penguinisto (415985) | more than 6 years ago | (#22565546)

I mean, really. Dr. Jacobsen's background speaks for itself. He is a widely respected scientist with years of experience in real world forensics investigation. Trying to win your case by smearing his name and reputation will likely backfire with the judge.

What smear? If he doesn't know what he's talking about on a given subject but insists that he does, it is perfectly fair to point that out, which this report has done. If his actions and testimony is borderline incompetent, then so be it. Name and reputation are only indicative of current credibility. If testing and research erodes that credibility, then it's his problem, and not the FSF's.

Incidentally, I believe that in the legal world the terms "competence" and "incompetent" mean something specific, and IIRC it is not name-calling to label an expert witness as either. (e.g. "competent to stand trial").

/P

Re:Tsk, tsk (4, Informative)

mysticgoat (582871) | more than 6 years ago | (#22568488)

You are right that "competence" and "incompetence" have specific meanings in the legal world and in the professions.

When Jacobsen put himself forward as an "expert witness" (which also has a specific meaning), he asserted that he is a professional in the matter before the court. One of the measures of the value of his testimony is whether he is professionally competent or incompetent in this arena.

When Pouwelse describes Jacobsen as "borderline incompetent" he is saying that in this instance for sure, Jacobsen failed to meet the minimum standards of competent practice. I think by "borderline" Pouwelse means that he has not reviewed a large enough body of Jacobsen's work to judge whether Jacobsen is consistently incompetent as an expert witness.

Consider an organ transplant surgeon whose patients consistently do well: he is a competent surgeon and would be a good expert witness with regard to organ transplant procedures. He owns a couple of vintage 1957 Ford Thunderbirds and he does his own maintenance on them. But despite his huge ego (I did say he was a surgeon), he would be incompetent as an expert witness on the design flaws of the Ford Edsel.

Re:Tsk, tsk (5, Informative)

hedwards (940851) | more than 6 years ago | (#22565560)

Dr. Jacobsen's testimony speaks volumes of his professional background. You can say all you want about his character, but in the end he deliberately misrepresented testimony that he was presenting, and in at least one case that led to a verdict which likely wouldn't have been reached without his perjury. Of course, one should never presume malice when incompetence can explain it, but either way it was unethical of him to get involved if he wasn't using approved methodology.

I spent a lot of time in college in the lab, and you don't conduct research without a lab notebook and procedural information, as well as any mistakes, recorded in pen. One also wouldn't conduct an experiment without strict adherence to appropriate lab procedures.

No scientist worth his salt would deliberately ignore plausible explanations for the observed results without looking into them. Sometimes you can follow up with an explanation because it isn't technically possible to do so or it is beyond the budjet, but the paper should include all of the information about the methodology involved so that other scientists can replicate the experiment exactly as it was done.

Peer reviews exist to make it much more difficult for incorrect or fraudulent results to be accepted. I read the depositions that he gave, and they were mind blowingly incompetent. In several places in the depositions he admitted that the methods that he used weren't ever subjected to scientific analysis or testing, and that they weren't guaranteed to be in compliance with the typical norms of computer forensics.

In this case, it's an investigation and not an experiment, but the same procedures largely apply, the defense has a legal right to verify the evidence as well as the methods used in procuring the evidence. And Dr. Jacobsen deprived the defense attorneys of doing so.

Re:Tsk, tsk (1, Informative)

Anonymous Coward | more than 6 years ago | (#22566124)

I was a student and later an employee at ISU and know the man personally. Some of his research is amazing. The man is most definitely not good at depositions- the lawyers don't know enough to ask the right questions or let the man do his job, but he is not incompetent in the least.

Re:Tsk, tsk (2, Insightful)

Anonymous Coward | more than 6 years ago | (#22566246)

If he's not incompetent, I will accept that he's a liar.

Re:Tsk, tsk (4, Insightful)

piojo (995934) | more than 6 years ago | (#22567034)

You just vouched for someone. You can't do that anonymously, it makes no sense and has no credibility.

Re:Tsk, tsk (5, Funny)

Anonymous Coward | more than 6 years ago | (#22567178)

Listen to piojo, he knows what he's talking about.

Re:Tsk, tsk (1, Insightful)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#22568742)

Then how come you're an "Anonymous Coward". How do we know you're not a paid RIAA troll?

See Groklaw's analysis, too (3, Informative)

Anonymous Coward | more than 6 years ago | (#22566682)

This story is on Groklaw [groklaw.net] , too.

There's an absolutely night-and-day comparison between the "expert" and the expert. One won't discuss his fee arrangement without a court order, the other put it in his report. One was produced as a witness to testify about things that, under oath, he said he knew nothing about, while the other wasn't.

I simply cannot understand why Dr. Jacobsen would put his name on a report like that, but I can't imagine that it will enhance his career.

Re:Tsk, tsk (1)

Anonymous Coward | more than 6 years ago | (#22565706)

What would you suggest then? Tip-toe around everything as if it were made of glass and candy-coat every opposing statement? Sometimes tact needs to be cast off in order to actually get anything done. In this case it isn't childish, it's being direct, which is honest, mature and necessary.

Pouwelse's criticism could have been (and probably should have been) far more harsh.

Re:Tsk, tsk (4, Insightful)

Hatta (162192) | more than 6 years ago | (#22565724)

Yes, when incompetent expert witnesses are called to the stand, we absolutely do want them called incompetent. Even Dr Michael Behe [wikipedia.org] has years of experience in real world biology, it doesn't make him any less of a quack. Same for this guy, I don't know if his published research is quackery, or if he's testifying beyond his field, but it's clear he doesn't know what he's talking about. Have you even read the testimony in question?

Re:Tsk, tsk (-1, Troll)

Anonymous Coward | more than 6 years ago | (#22567248)

So you(or someone else) has created a reproducible experiment that proves that such systems aren't irreducibly complex?

Otherwise it's still just two sides bickering back and forth without any proof(scientific) on either side.

Re:Tsk, tsk (4, Insightful)

rhizome (115711) | more than 6 years ago | (#22567562)

I mean, really. Dr. Jacobsen's background speaks for itself. He is a widely respected scientist with years of experience in real world forensics investigation. Trying to win your case by smearing his name and reputation will likely backfire with the judge.

Congratulations, you've got two kinds of stupid.

1) This is a fallacious appeal to authority. In fact, his background most definitly doesn't (and should not) speak for itself. If it did, all the RIAA would have to do is supply his name and the judge would evaluate his testimony in light of that. No, the words matter.

2) Judges do not use Slashdot or its comments to figure out how they're going to rule.

Another thing you (and your other respondents) may not know is that "incompetence" has a specific meaning in a legal context. Read that again, it's important and will be on the test later. Legal incompetence means that his expert testimony is not actually expert, or in other words "is not competent" to be considered the words of an expert. You don't become an expert witness just for having experience and getting your paycheck from a university. It's also about presenting your findings in a legally-supportable way, so when the judge calls his testimony "borderline incompetent," the judge is signalling that it may be likely to get thrown out.

Re:Tsk, tsk (0)

Anonymous Coward | more than 6 years ago | (#22568588)

so when the judge calls his testimony "borderline incompetent," the judge is signalling that it may be likely to get thrown out.


If you had RTFA [blogspot.com] , you would have realized that it wasn't the judge using the phrase "borderline incompetent", it was the defendant's expert witness doing the name-calling. With emphasis added:

The report concluded that the Jacobson reports demonstrated "borderline incompetence" and that the "allegations of copyright violations are not proven".

Re:Tsk, tsk (1)

Workaphobia (931620) | more than 6 years ago | (#22568402)

*Blank stares, momentary pause*

Kill the Wise One! *Otters swarm and destroy the AC*

let's eat poo (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#22565274)

or pineapple, whichever you like best. UIUIIUIUIUUIN yuuy uYYU YUYU UY UY

So now... (1)

Penguinisto (415985) | more than 6 years ago | (#22565280)

...when will they get jiggy with firing off amicus curiae letters to the judges of every lawsuit in which the witl^Hness testified? (or at the very least start passing around the report the defense lawyers?)

/P

Re:So now... (1)

KublaiKhan (522918) | more than 6 years ago | (#22565318)

The report's linked in the article, but if you didn't see it, it's here [ilrweb.com] . Send it off to 'em yourself. ;-p

Hmmmm. (4, Funny)

Moryath (553296) | more than 6 years ago | (#22565296)

MafiAA "expert" spanked. Film at 11.

Please say there's film. Please say we eventually see this guy cross-interrogated and his "credentials" and bullshit run through the wringer for all to see.

Re:Hmmmm. (5, Funny)

fahrbot-bot (874524) | more than 6 years ago | (#22565572)

MafiAA "expert" spanked. Film at 11.
Please say there's film.

I'll wait for the torrent.

Re:Hmmmm. (2, Funny)

failure-man (870605) | more than 6 years ago | (#22566182)

So, 8:00 then?

Re:Hmmmm. (1)

jmichaelg (148257) | more than 6 years ago | (#22566190)

Please say there's film

I'm not sure if it's the same 'expert' but this guy [youtube.com] turned up.

Re:Hmmmm. (0, Offtopic)

Gewalt (1200451) | more than 6 years ago | (#22567774)

Your sig... I think you must not have noticed. There is no whipped cream, there was never the false pretense of whipped cream either.

Hanlon's razor (4, Funny)

KiloByte (825081) | more than 6 years ago | (#22565326)

Never attribute to stupidity what can be adequately explained by malice.

Re:Hanlon's razor (0)

vtscott (1089271) | more than 6 years ago | (#22565420)

Uh, I think you got that one [wikipedia.org] backwards:

Never attribute to malice that which can be adequately explained by stupidity.
Or maybe you were trying to be sarcastic, but you didn't leave any clues to indicate that's the case...

Re:Hanlon's razor (2, Funny)

nuzak (959558) | more than 6 years ago | (#22565684)

The fact that the GP's interpretation is apropos to this case, and that the modified quote was posted totally in isolation was a good enough contextual clue -- I got it instantly. Your sarcasm detectors do indeed need adjustment.

Re:Hanlon's razor (1)

calebt3 (1098475) | more than 6 years ago | (#22568564)

How about Nolnah's Sledgehammer?

"borderline incompetent"? (5, Insightful)

Anonymous Coward | more than 6 years ago | (#22565334)

To me it sounds like more like "borderline dishonest". Anybody with a Ph.D (especially in something technical) is automatically going to have a strong understanding of the scientific method.

When someone in this position does things that are "unscientific", it means they know that a respectable study won't produce the desired conclusions.

Re:"borderline incompetent"? (5, Insightful)

91degrees (207121) | more than 6 years ago | (#22565430)

Yes. The borderline is between incompetent and dishonest:)

Re:"borderline incompetent"? (1)

Lord_of_the_nerf (895604) | more than 6 years ago | (#22565558)

I disagree with Prof Pouwelse. "Borderline" credits Jacobson with far too much competence.

Re:"borderline incompetent"? (4, Interesting)

vajaradakini (1209944) | more than 6 years ago | (#22565790)

To me it sounds like more like "borderline dishonest". Anybody with a Ph.D (especially in something technical) is automatically going to have a strong understanding of the scientific method.

You've never heard of Michael Behe [wikipedia.org] I take it?

Sadly there are a number of people with PhDs in the sciences who fail to understand the scientific method.

You're way too optimistic (4, Informative)

Anonymous Coward | more than 6 years ago | (#22565882)

It is possible to have a doctorate and even win the Nobel Prize and appear to have little understanding of the scientific method. The two examples that come immediately to mind are:

Linus Pauling who evangalized for Vitamin C in spite of having little proof for what he was saying. http://en.wikipedia.org/wiki/Linus_Pauling [wikipedia.org]

Sir Roy Meadow who sent lots of people to jail with his crackpot theories about sudden infant death.
http://en.wikipedia.org/wiki/Roy_Meadow [wikipedia.org]

Up here in Canada, we have a couple of high profile cases of physician incompetence right now. One case resulted in innocent people going to jail. The other case resulted in cancer patients dying because of botched medical tests.

The mere possession of a doctorate is no guarantee of any kind of competence.

Re:You're way too optimistic (1)

Agent__Smith (168715) | more than 6 years ago | (#22567884)

I can think of a glaring third.... The infamous Goracle.

Re:"borderline incompetent"? (0)

Anonymous Coward | more than 6 years ago | (#22566974)

>Anybody with a Ph.D (especially in something technical) is automatically
>going to have a strong understanding of the scientific method.

That's contrary to the Ph.D holders I have met. Most have become so specialized and focused with their particular degree (either in something technical or not) that they lose the ability to think critically.

Dur. (5, Interesting)

Damocles the Elder (1133333) | more than 6 years ago | (#22565344)

Of course the RIAA's testimony was "factually erroneous". We've been hearing about the shaky technical ground that these lawsuits have been based on since they started coming out, and it's "experts" like this, blatantly lying to non-technically-proficient judges, that've allowed the RIAA to keep pulling the crap it's been pulling. Thank god someone is both A. Knowledgable enough to call them on it, and B. Is in a position where they might actually be listened to.

The Judge Doesn't Know What He Is Talking About (5, Funny)

Subm (79417) | more than 6 years ago | (#22565360)

The witness is fully incompetent.

Re:The Judge Doesn't Know What He Is Talking About (3, Funny)

Fx.Dr (915071) | more than 6 years ago | (#22566338)

Fully incompetent implies the Doc isn't able to tie his shoes in the morn... Wait, is that velcro?

Some choice quotes from the report (4, Insightful)

MosesJones (55544) | more than 6 years ago | (#22565374)

After reviewing the material listed below I conclude the following
A)Two reports by Dr Jacobson where[sic] based in itotal on roughly an hour of work

indicates that Dr Jacobson is not competent to judge the accuracy of information...

the investigative process has been unprofessional

and of course the incompetence claim. The brilliance of this is that in reality Pouwelse hasn't done that much work himself because he just uses the report itself to slam the guy down. This isn't a case of an independent study finding a different result, this is the original report itself undermining its own principle.

Its like a Daily Show episode playing out in court.

Re:Some choice quotes from the report (5, Funny)

liquidf (1146307) | more than 6 years ago | (#22565796)

...This isn't a case of an independent study finding a different result, this is the original report itself undermining its own principle...
after reviewing this statement, i come to no other conclusion that the above "MosesJones" and his/her post displays borderline incompetence, due to the fact that s/he is unable to properly close his/her html tag with an </i>, thus causing confusion to the reader as to whether the comments above are his/hers, or merely quotes from the stated "article" as referenced in his/her title of said post.

Re:Some choice quotes from the report (0)

Anonymous Coward | more than 6 years ago | (#22567166)

s!</i>!</em>!, you <blink>incompetent fool!!</blink>

One sees what one wants to see (4, Insightful)

The Ancients (626689) | more than 6 years ago | (#22565376)

He was hired by the RIAA as an expert witness, and obviously felt, either consciously or subconsciously, that in exchange for the money he was paid, that he should please his benefactors. I think this is the only type of witness they could have employed however, as any expert who had a higher moral compass, or ability to take an unbiased view of the task at hand, would find that the RIAA's arguments are indeed, seriously lacking in substance.

Re:One sees what one wants to see (1, Insightful)

91degrees (207121) | more than 6 years ago | (#22565666)

It's not his job to determine the legal strength of the argument. Only to find the person downloading materials.

Now, if you have logs that show a file was downloaded and the indicated IP address was assigned to a specific computer at a given time, you would assume that you downloaded from that computer. You can probably be reasonably sure you've got the right person. False positives are probably lower than 5% or so. For most of us in our day to day life, this level of false positive is fine for making decisions. People do it all the time.

The fact that this is not sufficient for a court is up to people who know about evidence - i.e. lawyers - to deal with. The RIAA should have asked him the questions that he was asked in cross examination.

Re:One sees what one wants to see (3, Insightful)

NormalVisual (565491) | more than 6 years ago | (#22566886)

The RIAA should have asked him the questions that he was asked in cross examination.

The RIAA lawyers don't know which questions to ask when it comes to technical testimony - finding out exactly what to ask (and which answers can sink your case) is part of the reason they hire an expert in the first place. The fact that he apparently did not tell the attorneys that anyone with a halfway decent understanding of the subject matter would be able to shoot his testimony full of holes speaks volumes, as does the lack of time he admitted to spending on the subject matter presented to him. I can't imagine any lawyer would want to continue on the tack the RIAA did, having been given a decent expert opinion on their evidence.

Support the EFF! (4, Insightful)

Nemilar (173603) | more than 6 years ago | (#22565466)

Posting on slashdot is all well and good, but the EFF can only continue its work if you support them financially [eff.org] !

I'm a member.. are you?

Re:Support the EFF! (3, Interesting)

xtracto (837672) | more than 6 years ago | (#22565832)

Something I would never ask people to do is to go to NYCountryLawyer web page [blogspot.com] and look if any of the advertisements served by google in that page interest you...

That would make NYCountryLawyer get some cash from the ads clicks...

Re:Support the EFF! (3, Funny)

rbochan (827946) | more than 6 years ago | (#22566260)

Whoa!
"Your Pretty Mexican Bride
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Re:Support the EFF! (0)

Anonymous Coward | more than 6 years ago | (#22567630)

*Scrolling down*

*Scrolling down*

Hmm... Apparently, a beautiful Mexican bride is waiting for me. I wonder how he managed to get that kind of ad from Google.

*Click*

Re:Support the EFF! (0)

Anonymous Coward | more than 6 years ago | (#22565908)

"God" and the EFF are similar in that way.

Re:Support the EFF! (1)

eabraham (1246830) | more than 6 years ago | (#22566076)

I am NOW a member. Thank you for the reminder.

Re:Support the EFF! (3, Funny)

mdenham (747985) | more than 6 years ago | (#22567308)

Posting on slashdot is all well and good, but the EFF can only continue its work if you support them financially!
How much to get rid of Stallman?

Re:Support the EFF! (1)

webmaster404 (1148909) | more than 6 years ago | (#22567400)

Stallman is from the FSF not EFF. The FSF helps make software free, the EFF battles the RIAA and patent trolls.

Hyperbole in Legal Documents (1)

BlabberMouth (672282) | more than 6 years ago | (#22565538)

Tends to detract from the persuasiveness of the presentation. I agree with the earlier poster regarding name calling. If there is concrete facts to back up that statement, then why detract from the facts and bring the focus language most judges will simply gloss over?

RIAA Incompetent (1, Funny)

Anonymous Coward | more than 6 years ago | (#22565574)

There removed the 4 redundant words in the headline!

Hurry up, damnit. (2, Interesting)

Loopy (41728) | more than 6 years ago | (#22565576)

It occurs to me that most of this junk is already "obvious RIAA troll" type information. I.e.: Let's sue them and throw pseudoscientific data at them en masse so the defendant(s), who are probably largely computer-illiterate, have to prove they're innocent or refute our "me first" "expert" conclusions. Which makes these RIAA cases simply a matter of getting the correct data in the books to use as grounds to speed up future litigation. Assuming that premise (yeah, gross oversimplification), at the rate we're going the RIAA (and the defendants) will be at this for the next decade. Gotta make someone happy somewhere but I can't think who, aside from the lawyers on both sides.

Damn... (4, Funny)

Wandering Wombat (531833) | more than 6 years ago | (#22565692)

When you get bitch-slapped by the DUTCH, you know you deserved it.

Borderline??? (1)

Nom du Keyboard (633989) | more than 6 years ago | (#22565716)

Borderline??? I don't think there was anything borderline about it. How about totally incompetent?

His response? (4, Funny)

rhenley (1194451) | more than 6 years ago | (#22565750)

When asked for comment, Dr. Jacobson responded, "Oh yeah? Well he's a big doodoo head!"

Dutchness (0)

Anonymous Coward | more than 6 years ago | (#22565824)

Gota love the Dutch "directness." An American might see his comments as rude, but Northern Europeans tens towards directnes.

I liked it too but (0)

Anonymous Coward | more than 6 years ago | (#22566306)

This is typical lawyer b.s. not ownage or LOL or haha etc..

Ooo, look! Adversaries. (3, Insightful)

PMuse (320639) | more than 6 years ago | (#22566376)

Are we seriously running a /. article based on what one litigant is saying about another's position?

Whichever side you favor (and we all know who that is on /.), it's not news until a judge says it.

Observations from an expert witness (4, Informative)

bfwebster (90513) | more than 6 years ago | (#22566494)

I have served repeatedly over the past 9 years as an expert witness in technology-related litigation [brucefwebster.com] (including intellectual property cases), which means that I have analyzed (and, as required, rebutted) many expert reports and written quite a few of my own. Here are my observations:

-- Expert testimony in federal court (and for the most part, in state courts and arbitrations) is largely governed by several federal court decisions (Daubert v. Merrell Dow, Kumho Tire v. Carmichel) that require the judge to act as a 'gatekeeper' in deciding what expert testimony to allow or exclude. Much of Dr. Pouwelse's criticisms are aimed at the Daubert/Kumho standards, including qualifications and methodology, with an eye towards having these reports (and possibly Dr. Jacobson's testimony at trial) excluded.

-- Not having Dr. Jacobson's four reports/declarations, I can't critique them directly. However, the admissions by Dr. Jacobson during deposition that he spent only 45 minutes on his April 2006 report would appear to be pretty damaging. Even the briefest report I've ever written has taken at least several hours to put together, and I'm a fast writer; in most cases, it takes me anywhere from 40 to upwards of 100 hours of research, analysis, and writing to put together an expert report. Likewise, the 15 minutes on the December 19th declaration seems pretty short as well. This would naturally raise questions in the judge's mind whether Dr. Jacobson did his own research and writing and how well founded the reports and declarations are.

If someone has Dr. Jacobson's reports and declarations or has a link to them, please feel free to send them along, and I'll take a look at them directly. ..bruce..

Re:Observations from an expert witness (3, Informative)

azrider (918631) | more than 6 years ago | (#22566900)

If someone has Dr. Jacobson's reports and declarations or has a link to them, please feel free to send them along, and I'll take a look at them directly
Go to Ray Beckerman's site: http://recordingindustryvspeople.blogspot.com/ [blogspot.com] and find UMG vs. Lindor. All of the reports, declarations, pleadings, responses etc. are there.

Re:Observations from an expert witness (1)

bfwebster (90513) | more than 6 years ago | (#22568754)

Thanks; will do that. ..bruce..

I think this is the info you wanted? (4, Informative)

Anonymous Coward | more than 6 years ago | (#22567084)

I wish NYCL were here right now. I know he has all that stuff on his site... somewhere.

Here's what I was able to dig up:

* RIAA Lawsuits UMG v. Lindor Index [riaalawsuits.us]
* April 12th report [ilrweb.com] (this is the long one)
* Another one [ilrweb.com]
* Original declaration [ilrweb.com] (this was the first one, IIRC)
-----
* NYCL's index [blogspot.com]
* Deposition transcript [riaalawsuits.us]

If NYCL shows up and contradicts me on any point, listen to him, not me. He's MUCH better than I am at keeping track of all these crazy lawsuits.

- I Don't Believe in Imaginary Property

In a completely OT note, if someone posts this before me, it's because I have to wait an hour or more between posts. This is one of the few things I regret about submitting without an account.

Not exactly unbiased is he? (1)

nontrad (773342) | more than 6 years ago | (#22566504)

Prof. Johan Pouwelse got 220 Euros per hour plus expenses for his "investigation" and report. Do you really think he was unbiased in his report? Could one of the reasons he agreed to do this was to toot his own horn as an "expert"? He states he is a P2P expert. He makes no mention of being a computer forensics expert or even slightly competent

  There are a few things I noticed that the initial testimony and Pouweles's report that need to be addressed......

  1) What was Prof. Jacobsen hired to do? If he was not hired to investigate something like how Verizon identified the IP addresses, he cannot be faulted for not knowing these.

          When hired, what level of forensic proof was requested? If the RIAA did not specify a level that would hold up in criminal court then Prof. Jacobson cannot be faulted for not meeting that level. Was he even asked to pursue alternate explanations as part if his "marching orders"? Or was he asked to do a cursory "first look" at the hard disk and RIAA never went further to cover all their bases?

  2) Stating that you did not know what processes and procedures MediSentry employed is not incompetence. Stating that you were absolutely certain of the process but in reality have no clue would be incompetence.

  3) When giving testimony, the witness must consider the "audience". When speaking of highly technical things, there are two ways to go - a) completely technical and difficult for the layman to follow (and possibly lose the court case as a result), or b) a simplified explanation that can get the main point across and be understandable to the average person. So explaining a "network of networks" should not imply incompetence.

Re:Not exactly unbiased is he? (1)

CorSci81 (1007499) | more than 6 years ago | (#22567004)

And just how much do you suppose Dr. Jacobson received for his time? Having read both Jacobson's deposition and Pouwelse's critique, I do find it hard not to question Dr. Jacobson's competence (or at least his ethics). Dr. Jacobson himself testified that he found no evidence of KaZaA on Ms. Lindor's computer. If you accept the plausibility of mis-identification (as Pouwelse's statement strongly suggests) I don't see the grounds for immediately jumping to the conclusion "oh, it must have been her son using his computer on her connection, let's go after him too" that the RIAA has pursued. They're seriously speculating she either tampered with her computer beyond the ability of their "expert" to detect, or someone else brought a computer into her home (but they want to inspect her son's desktop computer anyway). I don't know why this case is even still going, it's utterly ridiculous.

Re:Not exactly unbiased is he? (4, Informative)

azrider (918631) | more than 6 years ago | (#22567110)

1) What was Prof. Jacobsen hired to do? If he was not hired to investigate something like how Verizon identified the IP addresses, he cannot be faulted for not knowing these.
He was hired to testify that the RIAA's investigator (Media Sentry) was accurate in pinpointing Ms. Lindor as the infringer. In the process of doing so, he testified in a deposition that all of their methods and means were correct. Since he did so, he can indeed be faulted for this. Prof Pouwelse was correct in identifying this as an issue.

When hired, what level of forensic proof was requested? If the RIAA did not specify a level that would hold up in criminal court then Prof. Jacobson cannot be faulted for not meeting that level.
He was hired to testify as an expert witness on behalf of the RIAA. By definition, this requires a level that would hold up in civil (not criminal) court.

2) Stating that you did not know what processes and procedures MediSentry employed is not incompetence. Stating that you were absolutely certain of the process but in reality have no clue would be incompetence.
Stating that you did not know... is not incompetence unless you already stated under oath that the procedures were complete and accurate, only to later testify (in a second deposition) that not only did you not observe the procedures, but had no idea what they were. This is worse than borderline incompetence, this potentially crosses the line into perjury.

b) a simplified explanation that can get the main point across and be understandable to the average person. So explaining a "network of networks" should not imply incompetence.
You are correct if your explanation is intended to simplify the subject. If your intention as demonstrated by your testimony under oath is to mislead the finder(s) of fact (regardless of whether this is a bench or jury trial), this shows incompetence. However, it also implies if not outright screams deception. The only question that remains is whether this deception is inadvertent or willful. That would be the line that defines perjury.

I highly suggest that you read the assorted documents on Ray Beckerman's site (referenced in many other posts in this article), specifically Mr. Jacobsen's sworn testimony (read first) and then Prof. Pouwelse's report as to the veracity of Mr. Jacobsen's testimony (the subject of this article).

Re:Not exactly unbiased is he? (0)

Anonymous Coward | more than 6 years ago | (#22567286)

IANAL, but according to this [huppi.com] , this [lawglossary.net] , this [legallawterms.com] and this [msn.com] he did commit perjury.

Re:Not exactly unbiased is he? (1)

letsief (1053922) | more than 6 years ago | (#22567758)

Jacobson didn't say that MediaSentry's methods were correct. He said he assumed they were correct. There's a huge difference here. On cross he did downplay things like spoofing, just as he should have. I'm a card carrying member of the ACLU and, for the most part, I hate how the RIAA conducted themselves, but this is pretty ridiculous. Jacobson's testimony was perfectly fine. There's certainly room to question the accuracy of the data given to him, and to a lesser extent, some room to dispute how conclusive his findings were, but this is way beyond that. I realize NewCountryLawyer is just zealously defending his client, and that he isn't terribly knowledgeable about this stuff, but I have to say I've pretty much lost all remaining respect I had for him. There are ways to rebut Jacobson's testimony that are honest and (mostly) convincing- but this isn't it.

Re:Not exactly unbiased is he? (1)

azrider (918631) | more than 6 years ago | (#22568190)

Jacobson didn't say that MediaSentry's methods were correct. He said he assumed they were correct.
Jacobson's Affidavit:

--Original Message-- From: Doug Jacobson [mailto:redacted] Sent: Wednesday, October 25, 2006 9:28 AM To: Richard Gabriel Subject: Lindor report Disk
(instant source: http://www.groklaw.net/article.php?story=20071226120120223 [groklaw.net] also available in archives on Ray Beckerman's site.

13) I will testify to the procedures used and results obtained by MediaSentry coupled with the information supplied 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.

14) I will testify that based on the MediaSentry data mentioned above and registry entries recovered from the computer that the computer had a public IP address and was not connected to the Internet via a wireless router.

This is his testimony. He states that he can testify as to the procedures used and results obtained. This is not an "assumption".

Jacobson's testimony was perfectly fine. There's certainly room to question the accuracy of the data given to him, and to a lesser extent, some room to dispute how conclusive his findings were, but this is way beyond that.
We are way beyond questioning "the accuracy of the data", we are looking at the veracity of his testimony. To state that he will testify to the procedures used and then state:

Q. Do you know what processes and procedures MediaSentry employed?
A. I do not know the inner works of MediaSentry processes and procedures.
Q. Do you know what software they used?
A. No.
Q. Do you know if it was well known off-the-shelf software or if it was proprietary software?
A. Again, I do not know the inner workings of MediaSentry's operations.
Q. Do you know if their software had been peer-reviewed or published or anything like that?
A. Not that I'm aware of.
(from deposition dated February 23, 2007) is deceptive at best, perjury at worst.

Naturally... (1)

TheVelvetFlamebait (986083) | more than 6 years ago | (#22566528)

... the RIAA "expert", who is against P2P, is called "borderline incompetent" by not just an expert, but by one of the world's foremost experts on the science of P2P file sharing! That's right. The RIAA's shill is an "expert", the guy who opposes him is a scientist, so he must be right!

Look, to be fair, the guy probably is incompetent, but Slashdot just has a way of questioning the facts only at convenient times.

Re:Naturally... (1)

peektwice (726616) | more than 6 years ago | (#22567082)

I disagree... I question all facts, all the time. I only believe conjecture and speculation.

The word "incompetent" (1)

initialE (758110) | more than 6 years ago | (#22566774)

Well, it somehow brings to mind the concept that willful disregard isn't on the table. Is it a get-out-of-jail-free card?

Borderline pregnant (3, Funny)

syousef (465911) | more than 6 years ago | (#22566866)

When my wife collapsed at work they did some bloodwork and it came back "borderline pregnant". She was told to come back for another test after a few days.

"Borderline"...It's called a euphemism.

Experts say what they are paid to say (4, Interesting)

harlows_monkeys (106428) | more than 6 years ago | (#22567642)

Always take what any expert witness says with a large grain of salt. They are paid handsomely for their opinions. In a trial I witnessed, for example, in a controversy involving RAM cache, an expert testified that storing data on a hard disk would count as storing it in RAM cache, because hard disks are random access devices. You'd have a hard time finding anyone in the industry who ever used RAM cache to include caches on hard disk before that expert wrote his report, but having that opinion was better for the party that hired him, so he dug deep, and found a way to say that with a straight face.

This guy was definitely an expert. He had a string of well respected papers a mile long. He was an IEEE Fellow. He'd been, I believe, the head of the EE department at one or major engineering colleges. Advisor to numerous top companies, and member of numerous standardization committees. But he's retired now, and was probably getting $50-$100k (plus expenses) to find a way to say that disk cache was RAM cache, so even if that is a ridiculous position to take, it's not going to harm his career, or even his reputation. Even if his ridiculous position at this one trial came to the attention of people currently active in his field, they all know about the expert witness game, and will dismiss this. As long as you don't outright perjure yourself, taking a ridiculous position for money in court won't hurt you.

Groklaw Had an Article on Saturday (1)

darkonc (47285) | more than 6 years ago | (#22568778)

Groklaw was asked to look at, and comment on this testimony some time ago by someone associated with the defence, and so PJ was interested in the result and noted that the defence report seemed to, generally, agree with the Groklaw analysis.

... writing that the Jacobson reports demonstrate "borderline incompetence." Which is pretty much what you concluded.
To which one Groklawer replied: "I don't recall anyone on Groklaw using the word 'borderline'. "
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