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RIAA Expert Witness Called "Borderline Incompetent"
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."
Feel free to substitute "shaky" with "unfounded".
We figured out a long time ago that it's easier to elect seven judges than to elect 132 legislators.
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.
Never attribute to stupidity what can be adequately explained by malice.
The creatures outside looked from Alt-Right to Antifa; but already it was impossible to say which was which.
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.
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 witness is fully incompetent.
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.
An Eye for an Eye will make the whole world blind - Gandhi
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.
The Mothership
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
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.
The enemies of Democracy are
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Gosh, your right. He isn't stupid. How about just calling him a whore?
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
i've had just about enough of your vassar bashing.
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").
Quo usque tandem abutere, Nimbus, patientia nostra?
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.
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.
When you get bitch-slapped by the DUTCH, you know you deserved it.
I like to place meaningful quotes in my sig, so people will know that I know what meaningful quotes are.
Yes, when incompetent expert witnesses are called to the stand, we absolutely do want them called incompetent. Even Dr Michael Behe 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?
Give me Classic Slashdot or give me death!
When asked for comment, Dr. Jacobson responded, "Oh yeah? Well he's a big doodoo head!"
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
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
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.
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? The RIAA is even trying to turn schools into copyright cops, 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.
If he's not incompetent, I will accept that he's a liar.
Are we seriously running a /. article based on what one litigant is saying about another's position?
/.), it's not news until a judge says it.
Whichever side you favor (and we all know who that is on
"We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
I have served repeatedly over the past 9 years as an expert witness in technology-related litigation (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:
..bruce..
-- 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 F. Webster (brucefwebster.com)
This story is on Groklaw, 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.
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.
These posts express my own personal views, not those of my employer
You just vouched for someone. You can't do that anonymously, it makes no sense and has no credibility.
A cat can't teach a dog to bark.
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
* April 12th report (this is the long one)
* Another one
* Original declaration (this was the first one, IIRC)
-----
* NYCL's index
* Deposition transcript
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.
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).
And ye shall know the truth, and the truth shall make you free.
John 8:32(King James Version)
Listen to piojo, he knows what he's talking about.
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.
When I was a kid, we only had one Darth.
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.
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.
Ray Beckerman +5 Insightful
> so when the judge calls his testimony "borderline incompetent," the judge is signalling that it may be likely to get thrown out.
...
... but I don't think he's a judge.
I really hate to undermine you because you make a lot of good points, but unless I've badly misread this whole story, it was an expert witness hired by the defense who called the RIAA's 'expert' testimony "borderline incompetent"
Now, don't misunderstand. I fully agree with that characterization. I was here on Slashdot (and Groklaw) helping to dissect every wrong statement in it I could find. I trawled through all those leaked MediaDefender emails to see if there were any juicy bits that could help at trial. This man is right!
Hopefully the judge WILL agree with this soon and we'll have a ruling making you retroactively correct, though!
Oh, I should mention one other thing. The RIAA *DOES* have an odd habit of citing random posts online and airing them in court. Mostly they focus on Mr. Beckerman's blog and try to use that against him in court, but I would _NOT_ put it past them to cite any other random comment online if they thought it would prove anything. I don't think it's bought them anything, and you're certainly correct that judges do not seem to pay much attention to them.
But it's still one of those things to be aware of, because I've seen plenty of evidence in legal filings that the RIAA is essentially cyber-stalking Mr. Beckerman, for all the good it will do them. Sort of like how SCO reads Groklaw all the time. Must be agonizing, that. Watching the public gawk at the train wreck you're making of your own business. I mean, even if the RIAA wins all these lawsuits, at best, they'll teach people to hate corporate music.
You're post sounds like pure RIAA-troll material, from the obligatory disclaimer 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 to the pretense of fair mindedness I have to say I've pretty much lost all remaining respect I had for him to the sophistry Jacobson didn't say that MediaSentry's methods were correct. He said he assumed they were correct. There's a huge difference here. to the ludicrous payload which no one in the world, not even the RIAA lawyers, not even Jacobson himself, believes: Jacobson's testimony was perfectly fine. Your post sounds quite phony to my ear.
Ray Beckerman +5 Insightful
Note: I am a current ISU student, posting anonymously to avoid backlash. This school has faculty who are notorious for pursuing grudges.
I am a current student at ISU, and I know the man personally. Some of his older research is interesting in the proper context. The man is terrible at anything related to real world problems or technology -- he should stay in the classroom.
I have read his past legal work for the MP/RIAA, and I can confirm its the quality (or lack thereof). As terrible as he is with depositions, he, his faculty peers, and the ISU community go to great lengths to make him seems like an Information Assurance genius, and the most amazing man computer security work has ever seen. They also tote his work for the MP/RIAA as being an excellent example of a man with his head on straight.
To top it off, his greatest achievement is creating a "simulated Internet", which is nothing more than a bunch of old motherboards, CPU's, and RAM connected by ancient *hubs* to create an incredibly-slow set of routing gateways over which software written for a bygone era can track communications using technology entirely outdated by modern (2000 onward) switching and routing equipment.
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
Was this supposed to be modded funny? I couldn't tell.