RIAA Security Expert's Quest For Reliability

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."

Comments

Am I the only one

[Workaphobia]

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

[Anonymous Coward]

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

[NewYorkCountryLawyer]

No juror will believe, as I do not believe, that this man did not know what the word "exculpate" means.

It is a well known principle in the law, and fully recognized in many judicial decisions, that a witness who will lie about little things will usually lie about big things too.

Re:Moderately Amused

[bmo]

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

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

Dr. Jacobson is alright. Just not as a witness.

[Anonymous Coward]

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 which ultimately goes to the motion to exclude 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.