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RIAA's 'Expert' Witness Testimony Now Online
NewYorkCountryLawyer writes "The online community now has an opportunity to see the fruits of its labor. Back in December, the Slashdot ('What Questions Would You Ask an RIAA Expert?') and Groklaw ('Another Lawyer Would Like to Pick Your Brain, Please') communities were asked for their input on possible questions to pose to the RIAA's 'expert'. Dr. Doug Jacobson of Iowa State University, was scheduled to be deposed in February in UMG v. Lindor, for the first time in any RIAA case. Ms. Lindor's lawyers were flooded with about 1400 responses. The deposition of Dr. Jacobson went forward on February 23, 2007, and the transcript is now available online (pdf) (ascii). Ray Beckerman, one of Ms. Lindor's attorneys, had this comment: 'We are deeply grateful to the community for reviewing our request, for giving us thoughts and ideas, and for reviewing other readers' responses. Now I ask the tech community to review this all-important transcript, and bear witness to the shoddy investigation and junk science upon which the RIAA has based its litigation war against the people. The computer scientists among you will be astounded that the RIAA has been permitted to burden our court system with cases based upon such arrant and careless nonsense.'"
I'm a Computer Engineer and a Professional Engineer. If I testify in legal proceedings, I am required to adhere to specific professional standards. My certifying body takes our legal obligations fairly seriously. A customer would be wise to hire properly licensed engineers for matters involving legal responsibility and/or large contracts. Amongst other requirements, licensed engineering firms require liability insurance, so if things go bad, the customer has some recourse. We also have ethical standards constraining what we can say or do.
For me to say why he was doing it would be speculation. My guess as to the reason: inexperience.
Ray Beckerman +5 Insightful
I'm currently studying for the spring Fundamentals of Engineering exam (FE). After taking this exam and working in the field of engineering for 5 years, you can take the Professional Engineering (PE) exam. Its not the easiest test in the world, and its a big pain in the arse. That said, I think a computer science student would have a particularly hard time with it. The morning session (general) is composed of several subjects including chemistry, strengths of materials, physics, thermodynamics, fluid mechanics, a small ethics session, etc. Basically all engineering knowledge known up to 1935, updated to the modern day. Everyone has to take the general session, and I think Comp sci students would struggle with it.
The afternoon session is a choice between mechanical, electrical, civil, (chemical?) engineering. I think maybe comp sci students could take the electrical and do fairly well on this half. The PE exams are very similar (identical?) to the FE exams, but it has been 5 years since you have been in a classroom so they are considered harder just for this reason.
As for the term "Computer Engineer"; in the 1800s a group of very smart men began doing different things with Natural Philosophy. They were so different that they thought they needed a new title for what they did to separate themselves from the natural philosophers. Eventually they went with the title "scientists". Perhaps a new title is needed for "computer engineers" because it doesn't seem to fit very well.
Even those who arrange and design shrubberies are under considerable economic stress at this period in history.
He's submitted sworn reports... around 200 of them. But no defendant's lawyer has ever brought him to a deposition before this.
Ray Beckerman +5 Insightful
At a trial "lack of foundation" means the lawyer's question has leapfrogged over some other material that would have been needed ... i.e. laying a foundation.
But since I would only be crossexamining this guy, lack of foundation would not have been an appropriate objection to my questions there either.
I.e., the RIAA lawyer, hopefully out of inexperience rather than calculated dilatoriness, was wasting our precious time.
Ray Beckerman +5 Insightful
I would expect my licensing body would get annoyed with me if I spent "45 minutes" (Page 54) drafting a report that was used as part of litigation. They expect that Professional Engineers check our facts so as not to mislead a jury. This avoids sequences of questions like that from Page 42, where the witness essentially admits:
a) he did not look for alternative explanations,
b) he did not check how accurate his findings were (potential rate of error),
c) he has no standards or controls,
d) he is not using published methods accepted by the scientific community, and
e) has no way of determining if the information given to him was correct.
It is considered a substantial problem if a Professional Engineer misleads a jury, as it can pervert justice. As such, it is very important for the legal duties be taken seriously and with the required standards of care.
As I interpret it, the summary is that the guy inspecting the hard drive appeared to have no formal qualifications, his methods were not peer reviewed, he was unaware of the exact methods and procedures of the software he had been using to identify the user or examine the hard drive, he could not testify that although media appeared to be shared it had actually been downloaded by any person (other than the software looking for copyright material), although he examined the disk he didn't actually document any of his findings, that he was not aware if the time of IP address allocation and the IP address to account lookup that Verizon did was actually correlated/synchronized, that he was unaware of Verizons' procedure for looking up such data and if it was free of human and/or mechanical errors, that he didn't know what the IP allocation time was or how many times this dynamic IP address had been allocated that day, that he himself teaches classes involving spoofing, that there were 3 user accounts on the hard drive that he examined, and that, assuming the information from Verizon was accurate, he had no way to actually show which particular person had been using the computer. Further, he conceded that it was possible to compromise and control a computer remotely over the Internet, and that he had not investigated if this had actually occurred. A document was also referred to in which it was shown that P2P applications often scan users hard drives and share media on installation, and many P2P users are not aware of which files on their computer are shared, even when their whole drive may be shared, including personal documents. It was also stated that P2P applications can run in the background, e.g. in the system tray, perhaps without the users knowledge.
There was some tenuous discussion of how MAC addresses are used (to which I am not certain I completely agree, but I'm not an expert), and again on how the correlation of two address fields in a Kazaa packet shows that the computer was connected directly to the Internet and not through a router. Again, there was nothing to show that the computer connected to the Internet at the time actually belonged to the Verizon account holder, because no MAC address was recorded and in fact he didn't have access to anything except the hard drive (although personally I would expect Windows records this in the registry, which he did examine and didn't document). In any case, he did say that MAC addresses could be spoofed.
Most interesting for me was that as the examiner, he had been asked purely to find out if Kazaa and MP3 files were present, and he seemed to followed that direction, failing to look for any materials (e.g. malware, remote control apps, etc.) that could possibly have assisted the defense.
HTH
The lawyer was making those objections because that's how these things work, for better or worse. In these situations, lawyers attend depositions assigned specifically to object to anything remotely objectionable in order to preserve their objections in the future (because otherwise they are lost). If something really damaging happened in one of the answers to an objected question, those lawyers could then bring up the fact that they objected at the time and wouldn't be hosed by failure to preserve the issue. In many cases it's just wasting time, but in the event something goes ill in your deposition, you'll thank your lawyers for so protecting you.
This is flat-out wrong. Yes, you CAN find the OUI that might well give you enough information to find out who made the hardware. The problem is that you can change the whole damn MAC address. Conveniently, Wikipedia even has instructions on how to change your MAC on many OSes, although there's an illustrated guide on changing your MAC, elsewhere.
This guy may know a bit of programming, but this kind of stuff makes it pretty clear to me that he has no idea how people can and do manipulate information. It's pretty clear to me that he's done little more than investigate only those things which might support their case and has completely ignored anything which might cast doubt upon it.