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."

Re:Tsk, tsk

[Chris Burke]

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

[hedwards]

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.

You're way too optimistic

[Anonymous Coward]

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.

He should know better!

[Anonymous Coward]

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:Tsk, tsk

[Anonymous Coward]

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:I'm not at all surprised

[CoderBob]

But I Watch Law & Order.

Observations from an expert witness

[bfwebster]

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..

See Groklaw's analysis, too

[Anonymous Coward]

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:Observations from an expert witness

[azrider]

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.

I think this is the info you wanted?

[Anonymous Coward]

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.

Re:Not exactly unbiased is he?

[azrider]

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:Tsk, tsk

[mysticgoat]

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:He should know better!

[NewYorkCountryLawyer]

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:Observations from an expert witness

[NewYorkCountryLawyer]

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..

The materials reviewed by Prof. Pouwelse are the February 23, 2007, deposition of Prof. Doug Jacobson, and exhibits [blogspot.com] and Dr. Jacobson's December 2007 supplemental report [blogspot.com].

Re:Not exactly unbiased is he?

[NewYorkCountryLawyer]

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?

You really think he needs the money? Think again [arstechnica.com].

Re:He should know better!

[jejones]

I have no idea about whether the RIAA is pushing it, but Jacobson and his wife are two of four people who founded Palisade Systems, which may be the company to which you refer. See this article [midiowanews.com] from the Ames (Iowa) Tribune.

Re:Thanks!

[NewYorkCountryLawyer]

I noticed a lot of calls for EFF donations in this story, which is a good thing because it's my understanding that they helped fund this.

It's great to contribute to EFF, because they do many good things, and have filed some wonderful amicus curiae briefs, but they did not help to fund this. The money came from private individuals contributing to the Expert Witness Defense Fund [blogspot.com] being administered by the Free Software Foundation.