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RIAA Expert Witness Called "Borderline Incompetent"

Posted by kdawson on Tue Feb 26, 2008 05:18 PM
from the tell-us-what-you-really-think dept.
Government The Courts News
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."
+ -
story

Related Stories

[+] Technology: RIAA's 'Expert' Witness Testimony Now Online 512 comments
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.'"
[+] Your Rights Online: FSF Reaches Out to RIAA Victims 329 comments
NewYorkCountryLawyer writes "In what has been termed the ''RIAA's worst nightmare', the Free Software Foundation has announced that it is coming to the aid of the victims of RIAA lawsuits, by establishing an Expert Witness Defense Fund to assist defendants in RIAA cases. The purpose of the fund is 'to help provide computer expert witnesses to combat RIAA's ongoing lawsuits, and to defend against the RIAA's attempt to redefine copyright law.' The funds will be used to pay fees and/or expenses of technical expert witnesses, forensic examiners, and other technical consultants assisting individuals named as defendants in non-commercial, peer-to-peer file sharing cases brought by the RIAA, EMI, SONY BMG, Vivendi Universal, and Warner Bros. Records, and their affiliated companies, such as Interscope, Arista, UMG, Fonovisa, Motown, Atlantic, Priority, and others."
Submission: RIAA "expert witness" exposed by NewYorkCountryLawyer (912032)
[+] Comparing the RIAA To "The Sopranos" 193 comments
NewYorkCountryLawyer writes "According to commentator Therese Polletti at Dow Jones MarketWatch, 'the RIAA's tactics are nearly as bad as the actions of mobsters, real or fictional. The analogy comes up easily and frequently in any discussion of the RIAA's maneuvers.' Among other things she cites the extortionate nature of their 'settlement negotiations' pointed out by Prof. Bob Talbot of the University of San Francisco School of Law IP Law Clinic. His student attorneys are helping private practitioners fight the RIAA, and the the illegality of the RIAA's use of unlicensed investigators. She goes on to cite the fact that the RIAA thinks nothing of jeopardizing a student's college education in order to make their point, as support for the MAFIAA/Mafia analogy."
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RIAA Expert Witness Called "Borderline Incompetent" 50 Comments More /

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

    by Corpuscavernosa (996139) on Tuesday February 26 2008, @05:22PM (#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".

    • Fell free to substitute "shaky" with incompetent.

    • Re: (Score:3, Insightful)

      by cthulu_mt (1124113)
      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 (Score:5, Interesting)

        by LrdDimwit (1133419) on Tuesday February 26 2008, @10:09PM (#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! (Score:5, Informative)

      by Anonymous Coward on Tuesday February 26 2008, @06:23PM (#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.

  • Hmmmm. (Score:5, Funny)

    by Moryath (553296) on Tuesday February 26 2008, @05:24PM (#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.

  • Hanlon's razor (Score:5, Funny)

    by KiloByte (825081) on Tuesday February 26 2008, @05:26PM (#22565326)
    Never attribute to stupidity what can be adequately explained by malice.

      • Re: (Score:3, Funny)

        by nuzak (959558)
        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.

  • "borderline incompetent"? (Score:5, Insightful)

    by Anonymous Coward on Tuesday February 26 2008, @05:27PM (#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"? (Score:5, Insightful)

      by 91degrees (207121) on Tuesday February 26 2008, @05:32PM (#22565430) Journal
      Yes. The borderline is between incompetent and dishonest:)

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

      by vajaradakini (1209944) on Tuesday February 26 2008, @06:01PM (#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 (Score:4, Informative)

      by Anonymous Coward on Tuesday February 26 2008, @06:09PM (#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.

  • Dur. (Score:5, Interesting)

    by Damocles the Elder (1133333) on Tuesday February 26 2008, @05:27PM (#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 (Score:5, Funny)

    by Subm (79417) on Tuesday February 26 2008, @05:28PM (#22565360)
    The witness is fully incompetent.

  • Some choice quotes from the report (Score:5, Insightful)

    by MosesJones (55544) on Tuesday February 26 2008, @05:29PM (#22565374) Homepage
    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 (Score:5, Funny)

      by liquidf (1146307) on Tuesday February 26 2008, @06:01PM (#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.

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

    by The Ancients (626689) on Tuesday February 26 2008, @05:29PM (#22565376) Homepage
    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 (Score:4, Insightful)

        by NormalVisual (565491) on Tuesday February 26 2008, @07:32PM (#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! (Score:5, Insightful)

    by Nemilar (173603) on Tuesday February 26 2008, @05:34PM (#22565466) Homepage
    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?

  • Hurry up, damnit. (Score:3, Interesting)

    by Loopy (41728) on Tuesday February 26 2008, @05:42PM (#22565576) Journal
    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.

  • His response? (Score:4, Funny)

    by rhenley (1194451) on Tuesday February 26 2008, @05:58PM (#22565750)
    When asked for comment, Dr. Jacobson responded, "Oh yeah? Well he's a big doodoo head!"

  • Ooo, look! Adversaries. (Score:4, Insightful)

    by PMuse (320639) on Tuesday February 26 2008, @06:47PM (#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.

    • Re:Ooo, look! Adversaries. (Score:5, Insightful)

      by NewYorkCountryLawyer (912032) * on Tuesday February 26 2008, @10:57PM (#22568892) Homepage Journal
      1. This is the first time of which we are aware, in the 30,000 or so cases that have been brought, that a defendant has been able to retain an expert witness to do battle with the RIAA on its main case.

      2. The expert this poor woman, who is a home health aide in Brooklyn, was able to retain is one of the foremost experts in the world on the science of p2p file sharing. E.g., he was selected to be the scientific director of the European Union's p2p consortium P2P-Next [arstechnica.com].

      3. His opinion, that the RIAA expert's work was "borderline incompetence", is a very, very strong statement.

      Sorry, I think that's newsworthy.... very newsworthy.

  • Observations from an expert witness (Score:5, Informative)

    by bfwebster (90513) on Tuesday February 26 2008, @06:57PM (#22566494) Homepage
    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..

  • Borderline pregnant (Score:4, Funny)

    by syousef (465911) on Tuesday February 26 2008, @07:29PM (#22566866) Journal
    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 (Score:5, Interesting)

    by harlows_monkeys (106428) on Tuesday February 26 2008, @08:54PM (#22567642) Homepage
    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.

    • Re: (Score:3, Insightful)

      by Anonymous Coward
      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 (Score:5, Informative)

      by Chris Burke (6130) on Tuesday February 26 2008, @05:32PM (#22565426) Homepage
      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 (Score:5, Funny)

      by irenaeous (898337) on Tuesday February 26 2008, @05:35PM (#22565482) Journal

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

    • Re:Tsk, tsk (Score:5, Insightful)

      by liquidf (1146307) on Tuesday February 26 2008, @05:39PM (#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 (Score:5, Insightful)

      by Penguinisto (415985) on Tuesday February 26 2008, @05:40PM (#22565546) Journal

      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 (Score:5, Informative)

        by mysticgoat (582871) on Tuesday February 26 2008, @10:21PM (#22568488) Journal

        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 (Score:5, Informative)

      by hedwards (940851) on Tuesday February 26 2008, @05:41PM (#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 (Score:5, Insightful)

      by Hatta (162192) on Tuesday February 26 2008, @05:55PM (#22565724) Journal
      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 (Score:5, Insightful)

      by rhizome (115711) on Tuesday February 26 2008, @08:47PM (#22567562) Homepage
      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.

      • I hate to pick nits, but... (Score:4, Insightful)

        by Xenographic (557057) on Tuesday February 26 2008, @11:08PM (#22569008) Homepage Journal
        > so when the judge calls his testimony "borderline incompetent," the judge is signalling that it may be likely to get thrown out.

        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! ... but I don't think he's a judge.

        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.

    • Re:Not exactly unbiased is he? (Score:5, Informative)

      by azrider (918631) on Tuesday February 26 2008, @07:57PM (#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).

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