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RIAA Expert Witness Called "Borderline Incompetent" 170

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."
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RIAA Expert Witness Called "Borderline Incompetent"

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  • by Corpuscavernosa ( 996139 ) on Tuesday February 26, 2008 @06:22PM (#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".

    • Re: (Score:3, Insightful)

      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.

      • by LrdDimwit ( 1133419 ) on Tuesday February 26, 2008 @11:09PM (#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.
      • Given the track record of so-called "experts" in the environmental and health fields, I have no doubts that you can find an "expert" witness for any view you wish to put forth.


    • by Anonymous Coward on Tuesday February 26, 2008 @07:23PM (#22566068)
      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.
      • Yes, I believe you're correct. That he's the RIAA's "expert" witness makes me very glad my major from Iowa State is in physics and not CS. Even still his presence at my alma mater makes me feel somehow... dirty. After reading his earlier depositions I would feel shortchanged if he had been the instructor for any of my classes. I wonder if this will in any way impact his career in academia. It would be wonderful to see students boycotting his classes or something.
        • How do you think those of us still here feel?

          thank $DIETY he isn't a computer science professor.
          • My apologies, I just noticed he's actually CprE. When I first saw his name come up I thought it was the same Dr. Jacobson who had been my "advisor" when I was still AeroE until I looked him up. Fortunately that's not the case. I should ask some of my old friends from that program if they ever had him as an instructor. As an alumni, I would have to say it would be completely irresponsible of any of you still there to visit any mischief on Dr. Jacobsen (say organized protest/boycotts) ;)
      • by NewYorkCountryLawyer ( 912032 ) * <ray AT beckermanlegal DOT com> on Tuesday February 26, 2008 @11:42PM (#22568720) Homepage Journal

        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!" []
      • Re: (Score:3, Informative)

        by jejones ( 115979 )
        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 [] from the Ames (Iowa) Tribune.
    • substitute "shaky" with "unfounded"

      or "perjured and sanctionable"

      I'd be willing to wager this means Ms. Lindor will be entitled to have the RIAA pay her attorney's fees.
  • ...when will they get jiggy with firing off amicus curiae letters to the judges of every lawsuit in which the witl^Hness testified? (or at the very least start passing around the report the defense lawyers?)


  • Hmmmm. (Score:5, Funny)

    by Moryath ( 553296 ) on Tuesday February 26, 2008 @06:24PM (#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.
  • by KiloByte ( 825081 ) on Tuesday February 26, 2008 @06:26PM (#22565326)
    Never attribute to stupidity what can be adequately explained by malice.
  • by Anonymous Coward on Tuesday February 26, 2008 @06:27PM (#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.
    • by 91degrees ( 207121 ) on Tuesday February 26, 2008 @06:32PM (#22565430) Journal
      Yes. The borderline is between incompetent and dishonest:)
    • by vajaradakini ( 1209944 ) on Tuesday February 26, 2008 @07:01PM (#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 [] I take it?

      Sadly there are a number of people with PhDs in the sciences who fail to understand the scientific method.
    • by Anonymous Coward on Tuesday February 26, 2008 @07:09PM (#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. []

      Sir Roy Meadow who sent lots of people to jail with his crackpot theories about sudden infant death. []

      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 @06:27PM (#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.
  • by Subm ( 79417 ) on Tuesday February 26, 2008 @06:28PM (#22565360)
    The witness is fully incompetent.
  • by MosesJones ( 55544 ) on Tuesday February 26, 2008 @06:29PM (#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.
    • by liquidf ( 1146307 ) on Tuesday February 26, 2008 @07:01PM (#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.
      • Re: (Score:3, Funny)

        by mysticgoat ( 582871 )

        I agree that GP post shows borderline incompetence in the use of </i>.

        It should noted that parent post shows borderline incompetence in distinguishing between content and the bells and whistles of presentation.

      • not to mention that the GP instigated a note of personal anxiety by mislaying (intentional? maliciously so, I think!) an apostrophe in the conjoined phrase "It's" in the last sentence.

        I move that said poster be spanked into moderation for causing this worthless reply.
  • by The Ancients ( 626689 ) on Tuesday February 26, 2008 @06:29PM (#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.
  • Support the EFF! (Score:5, Insightful)

    by Nemilar ( 173603 ) on Tuesday February 26, 2008 @06:34PM (#22565466) Homepage
    Posting on slashdot is all well and good, but the EFF can only continue its work if you support them financially [] !

    I'm a member.. are you?
  • Tends to detract from the persuasiveness of the presentation. I agree with the earlier poster regarding name calling. If there is concrete facts to back up that statement, then why detract from the facts and bring the focus language most judges will simply gloss over?
  • Hurry up, damnit. (Score:3, Interesting)

    by Loopy ( 41728 ) on Tuesday February 26, 2008 @06:42PM (#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.
  • Damn... (Score:5, Funny)

    by Wandering Wombat ( 531833 ) <mightyjalapeno AT gmail DOT com> on Tuesday February 26, 2008 @06:51PM (#22565692) Homepage Journal
    When you get bitch-slapped by the DUTCH, you know you deserved it.
  • Borderline??? I don't think there was anything borderline about it. How about totally incompetent?
  • by rhenley ( 1194451 ) on Tuesday February 26, 2008 @06:58PM (#22565750)
    When asked for comment, Dr. Jacobson responded, "Oh yeah? Well he's a big doodoo head!"
  • by PMuse ( 320639 ) on Tuesday February 26, 2008 @07:47PM (#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.
    • 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 [].

      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.
    • ... and as we know, the judge does not actually listen to any of these testimonials, but rolls a die to determine the outcome. That's why nothing that happens in a court case is interesting except the verdict.
  • by bfwebster ( 90513 ) on Tuesday February 26, 2008 @07:57PM (#22566494) Homepage
    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:

    -- 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..
  • ... the RIAA "expert", who is against P2P, is called "borderline incompetent" by not just an expert, but by one of the world's foremost experts on the science of P2P file sharing! That's right. The RIAA's shill is an "expert", the guy who opposes him is a scientist, so he must be right!

    Look, to be fair, the guy probably is incompetent, but Slashdot just has a way of questioning the facts only at convenient times.
    • I disagree... I question all facts, all the time. I only believe conjecture and speculation.
    • You don't have to be a scientist to see that Jacobson is wrong. Just read his testimonies. I did. For me, Pouwelse merely agrees with what I had already concluded, and so that part isn't news to me. I also read Jacobson's speech that he gave to the US Congress, on Jacobson's own web site. It's not worthy. He would have done well to have run it past a few more critics before going in front of Congress. It's one thing to simplify in the interest of brevity, but I thought it went beyond that into the mi

  • Well, it somehow brings to mind the concept that willful disregard isn't on the table. Is it a get-out-of-jail-free card?
  • by syousef ( 465911 ) on Tuesday February 26, 2008 @08:29PM (#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.
  • by harlows_monkeys ( 106428 ) on Tuesday February 26, 2008 @09:54PM (#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.

  • Groklaw was asked to look at, and comment on this testimony some time ago by someone associated with the defence, and so PJ was interested in the result and noted that the defence report seemed to, generally, agree with the Groklaw analysis.

    ... writing that the Jacobson reports demonstrate "borderline incompetence." Which is pretty much what you concluded.
    To which one Groklawer replied: "I don't recall anyone on Groklaw using the word 'borderline'. "

Experience varies directly with equipment ruined.