Prof. Johan Pouwelse To Take On RIAA Expert

NewYorkCountryLawyer writes "Marie Lindor has retained an expert witness of her own to fight the RIAA, and to debunk the testimony and reports of the RIAA's 'expert' Dr. Doug Jacobson, whose reliability has been challenged by Ms. Lindor in her Brooklyn federal court case, UMG v. Lindor. Ms. Lindor's expert is none other than Prof. Johan Pouwelse, Chairman of the Parallel and Distributed Systems Group of Delft University of Technology. It was Prof. Pouwelse's scathing analysis of the RIAA's MediaSentry 'investigations' (PDF) in a case in the Netherlands that caused the courts in that country to direct the ISPs there not to turn over their subscribers' information (PDF), thus nipping in the bud the RIAA's intended litigation juggernaut in that country."

It'll be interesting to see..

Whether or not the RIAA manage to drown out the technical side of the argument in legal noise.
I'll be keeping my fingers crossed that this is actually the candle in the darkness that the article author believes to be the case (and no, to those that'll accuse me of being a thief of property and a subversive, I don't download music or videos. I just think the **AA are just playing dictator, and now facing their just come uppance).

Re:It'll be interesting to see..

Whether or not the RIAA manage to drown out the technical side of the argument in legal noise.

I think that legal 'snow' effect usually works better from the defense's standpoint (moreso in criminal trials, but still effective). It seems that if the jury can't figure out what's going on, they might not be inclined to award a judgement.

Re:

Wouldn't you love to see the RIAA found to be a vexatious litigant, though?

I predict you will start seeing rulings like that. Capitol v. Foster [blogspot.com] comes pretty close. And it ain't over yet.

Finally we get _real_ entertainment from the **IAA

As someone who found the original deposition to be a very enjoyable page-turner, I'm hoping that the sequel will be even better than the first one.

-P

Re:Finally we get _real_ entertainment from the **

I'm waiting for the audiobook (as long I can download it off of somebody's website).

Re:

Torrent. [thepiratebay.org]

You cannot pass!

I am a servant of knowledge, wielder of common sense. Go back to the shadow. The strong arm tactics will not avail you, face of the recording industry! You shall not pass!

Re:You cannot pass!

It is an attorney -- a lawyer of the RIAA. This foe is beyond any of you. Logout!

Jury of peers

Well as having been someone who's gone through a complete trial against the Department of Justice I can tell you what will happen in layman's terms regardless of what expert(s) is/are called. One no one will want to serve as a juror so you will get frustrated persons as jurors. Secondly she won't get a technically competent jury so their attitude will be more or less: "Is this damned thing over with". Thirdly because her jury won't be technical no matter what someone here thinks, the jury will likely be lost in technological talk that will seem foreign to them. Outcome... No one will truly care. Bottom line reality. It may be nice for /.'ers and people across the technology world to think that something big will come out of this case, and it will, because either way both sides win and lose so the write up will be favorable to whomever in either circumstance. That's the reality of it all. Consider this posting a trollish one if you care to, but facts are facts, no one on the jury will care to be there, they will be stuck like deers in headlights no matter how its explained to them, and the outcome won't make much of a difference to the world at the end of it all.

Re:Jury of peers

While I understand your withering commentary on the outcome from the perspective of the jury, you're forgetting the impact on law.

Case law is about precedent, and if Marie Lindor can have this case thrown out of court on grounds of technological fact, it will snap a big string in the bow of th **AA. They won't be able to use this particular ruse - one of their biggest - any longer in the courts, as anyone who takes a case defending someone against such a suit will simply be able to throw this case in.

Suddenly, fighting the **AA becomes a lot easier and cheaper, and it's Game Over as far as strong-arm, expensive litigation goes - the "Industry's" biggest weapon.

I think your comments regarding the jury are valid, but your conclusions are not.

Re:

You didn't read the fact that I said it could go either way for both parties and in the end it will only matter to them. Say what you will about precedence but the fact is, caselaw changes often. The problem with this case will be keeping the jury from fal

Re:Jury of peers

The outcome means nothing to the jurors at the end of the day, most will want to get out of jury duty and just get back to normal life duties.

This is complete and utter hogwash, and it seems like you're all pissy because you lost (although I don't think you said one way or the other). Perhaps you got a "bad" jury. Did you know that jury selection is two-sided? Both the prosecuting and defense attorneys take part in the process. If you had a lame jury, blame your lawyer. Speaking from experience, and having participated in jury duty not too long ago, I can assure you that even though much of the case was boring, each and every one of us made our best attempt to stay alert and remember facts for deliberation. We tried very hard to put aside personal beliefs and make a decision based on the law and the evidence heard. At the beginning of deliberations, the jury was nearly equally divided between guilty and not-guilty verdicts. After hours of deliberation and going through the facts each of use remembered, and also asking for a read back of part of the transcript, we ended up with one guilty verdict and the rest not-guilty. Ultimately, we had a hung jury because the one person who wanted a guilty verdict was unable to set aside the fact that the alleged victim was a child, and refused to budge even though the prosecution had failed to even remotely prove their case. I think he was wrong. But I can say this about him: he was very passionate about his opinion, and was trying very hard (even with the rest of us in opposition) to do what he felt was right. So, if the defense attorney is worth anything, there will be a balanced jury that will give the case a fair shake.

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The outcome means nothing to the jurors at the end of the day, most will want to get out of jury duty and just get back to normal life duties.

This is complete and utter hogwash

No, it's complete and utter truth. Consider yourself lucky that you were

Re:Jury of peers

It's also not about "a decision based on the law" as you state, but how the jury interprets the law, which is a gigantic distinction. Judges cannot under any circumstances tell juries what the law means. They can read the applicable law statues to the jury but it's up to the jury to decide what they think it means.

That's absolutely incorrect. Juries interpret the facts. The judge interprets the law (except for jury nullification, but that's a different story). And it's up to the DA and defense attorney to explain what the law means in relation to the case. It is then up to the jury to decide whether the facts in the case are enough to warrant conviction.

I served on a needlessly long jury trial for assault with a deadly weapon. Both the DA and the defense attorney set about explaining what the law meant in their opening statements. We heard the evidence, during which the judge interpreted the law by ruling on objections. After the closing arguments, the judge gave us our charge, which is another interpretation of the law, boiled down to explain what we were required to find for a guilty verdict. It was also an interpretation of the law in the sense that the judge had ruled out the possibility of finding the defendant guilty of any lesser offenses. We decided the facts, nothing else. It was a pretty simple "not guilty" in this case.

What a jury thinks a law means and what judges and lawyers think a law means are 2 different things.

More like 15 different things each juror, two attorneys, and one judge.

As for the main point of the GP, even the most jaded juror must realize that it could just as easily be them sitting in the defendants chair. To say that all juries are just interested in getting back to work is baseless. I for one enjoyed the time off, and I liked serving my community. I would be surprised if it's even a substantial fraction of juries that are of the "screw justice let's get out of here" mindset.

Re:Jury of peers

You didn't read the fact that I said it could go either way for both parties and in the end it will only matter to them.

They way I read the motion, I would say it was heavily in favor of the defendant. In the deposition of Dr. Jacobson, he admitted that the methods he used were:

1. of his own design
2. never published
3. thus, never peer-reviewed
4. never accepted by a standards body (NIST, IEEE, etc.)

In response, the RIAA says that "this methodology amounts to no more than applying settled principles to the undisputed data . . . used by reasonable experts in Dr. Jacobson's field . . . is the only way to do [the analysis] . . . and there is nothing that could be peer-reviewed." In essence, the RIAA says it is such a common (and only) methodoloy, it doesn't need to be tested. The RIAA misses the point.

What they RIAA doesn't tell you that these cases are new and no one has actually challenged the methodology yet. For the first part of the 20th century, phrenology [wikipedia.org] was accepted as a way to tell a person's character based on measurements of their head. It was used in court cases to help prove guilt. Later, it was debunked as a pseudoscience. Also Dr. Jacobson's methods have been successfully challenged in the Netherlands.

The second part of the defendant's motion was with the data from Media Sentry itself. In his deposition, Dr. Jacobson admitted:

1. he did not know how Media Sentry gathered the data
2. he did not know the accuracy of the data

Basically, the defendant is asking where the data comes from and how accurate is it? The RIAA's own expert does not know.

To this the RIAA responds that the "plaintiffs have authenticated the MediaSentry data . . . and the defendant has not offered one shred of evidence to contest the accuracy or reliability of the data." The RIAA tries to sidestep the accuracy question by vouching for the data themselves and asserts the defendant has no offered any proof the data is bad. That misses the point completely. The point was that the data is a such a mystery that even their expert does not know much about it. Also the RIAA hints that the defendant has not sought discovery from MediaSentry yet. What the RIAA doesn't mention is that in many court cases, it has sought to shield MediaSentry from discovery.

Finally, the RIAA challenges that all these technical arguments were made by defendant's lawyers and that the defendant has not offered any expert testimony to counter their expert. This point is moot as the defendant now has an expert.

Re:Jury of peers

This is not completely off-topic, but almost.

In my work in statistics (in education), validity has to be shown every time analysis is done. It's never a once and for all thing. This is a real drag for research, but it helps to show that what you say has a degree of validity. In my field, any expert witness offering evidence-based testimony would be required to complete the task of showing validity right from the start, otherwise the results and conclusion are not worth paying attention to.

Re:Jury of peers

When did defending your rights become so complex and expensive

When was it ever easy?

Re:

But should it be so expensive as to be beyond your reach?

Re:

Thirdly because her jury won't be technical no matter what someone here thinks, the jury will likely be lost in technological talk that will seem foreign to them.

That may work in her favor. People who don't regularly use computers tend to be intimidate

OT re: your sig

The happiness of society is the end of government. -- John Adams

I wonder if John Adams is using the word "end" in a way that is synonymous with "goal", rather than to suggest that he's some sort of radical anarchist. Do you have the context for the quote?

Re:

It's a distinction without a difference. The goal/end of a journey is the finale/end of the journey. There only seems to be a distinction in cases where the finale is unreachable because the goal is too idealistic.

Re:Jury of peers

If you have been following the case, the defendant is trying to have the RIAA's expert testimony excluded so it never reaches a jury. Her argument is that unlike other expert testimony, the RIAA's expert Dr. Jacobson has used unproved, unpublished methods and relied upon unknown data to make his conclusions. That would make his testimony entirely of his personal and not professional opinion. Personal opinion testimony is not allowed to be introduced as expert testimony. Also the data provided to him by Media Sentry has never been vetted to be accurate so even if his testimony could be allowed, the basis of his testimony would be in doubt. To counter the RIAA, the defendant is presenting another expert witness who has in the past successfully refuted the RIAA.

Without the expert witness, the RIAA really has not much of a case left. Their case would boil down to someone shared their copyrighted files. They can't prove if it was their files. They can't prove it was the defendant. This would set a precedent for all cases to follow like the awarding of attorney's fees might be a precedent.

Re:Jury of peers

Also, one thing many people on juries don't know and citizens aren't informed of:

No matter what a judge tells you, JURY NULLIFICATION IS LEGAL AND ACCEPTABLE. You can vote NOT GUILTY for any reason, no matter the cause, end of story.

It is never illegal for you to vote not guilty, it is never "wrong" for you to vote not guilty. If you ever get to a jury regarding file sharing, and you believe the current state of the law is unacceptable, you can vote NOT GUILTY regardless of how narrowly the judge defines the "issues at hand".

The prosecutor and judge will try to steer you to look only at narrow issues of fact and law. The truth is that juries have unreviewable and unreversable authority to acquit for any reason. (U.S. v. Dougherty, D.C. Circuit Court of Appeals, 1972).

JURY NULLIFICATION IS ALWAYS 'OKAY'.

My Cousin Johan

Johan: "I don't think da two youts downloaded any illegal music".
Judge: "Youts? Did you say youts?"
Johan: "Yeah ... da two youts."
Judge: "What's a yout?"
Johan: "Why don't you ask Dr. Jacobson? He's supposedly the expert here."
Judge: "Dr. Jacobson, what's a yout?"
Jacobson: "I believe it's a file type used for illegal music downloads, your honor."
Johan: "Da defenses rests, your judgeship".

+1 My Cousin Vinnie

Fred's finest hour.

Re:

For those not in in the know, the parent is referring to Fred Gwynne [imdb.com], who played Judge Chamberlain Haller in My Cousin Vinny. Fred Gwynne, btw, is also well-known for playing Herman Munster.

That's OK....

he'll never be able to appear in the US, someone will just have him added to the do-not-fly list... after all, he's got a foreign sounding name... that's enough for a start...

The RIAA will be getting all the help it needs,

As soon as congress passes the magical and majestic Intellectual Property Protection Act of 2007.

1. Criminalize "attempting" to infringe copyright.
2. Create a new crime of life imprisonment for using pirated software.
3. Permit more wiretaps for piracy investigations.
4. Increase penalties for violating the Digital Millennium Copyright Act's anti-circumvention regulations.
5. Add penalties for "intended" copyright crimes.

and my favorite,

6. Require Homeland Security to alert the Recording Industry Association of America.

http://news.com.com/8301-10784_3-9719339-7.html [com.com]

I beg to disagree with a couple of your points

As soon as congress passes the magical and majestic Intellectual Property Protection Act of 2007.

1. Criminalize "attempting" to infringe copyright.
2. Create a new crime of life imprisonment for using pirated software.

Step number two would criminalize approximately 50% of the current Windows users. This move would seriously hamper MS's future revenues and cannot be allowed.

3. Permit more wiretaps for piracy investigations.
4. Increase penalties for violating the Digital Millennium Copyright Act's anti-circumvention regulations.

I'm assuming that you have heard, Viacom is going to have the DMCA repealed during their lawsuit with YouTube?

5. Add penalties for "intended" copyright crimes.
and my favorite,
6. Require Homeland Security to alert the Recording Industry Association of America.

http://news.com.com/8301-10784_3-9719339-7.html [com.com]

I'm reasonably certain that if the DHS were to use their position/power to spy on the **AA all of these law suits would simply vanish. I'm thinking that one DHS director finding out how much less of a cut he got than senator so-and-so would put paid to that game.

Re:The RIAA will be getting all the help it needs,

Until I got to your link, I really thought you were joking. Life imprisonment?! Wow. "intended" copyright crimes? When does Tom Cruise come crashing into your house to arrest you for "future crimes" with a **AA patch on his shoulder?!

Re:The RIAA will be getting all the help it needs,

Holy fsck! I thought you were kidding. Here I was thinking "Why did this get modded informative?" Until I noticed the link at the end of the post...and then followed and read it! Parent is very serious, folks. Another one that struck me:

* Allow computers to be seized more readily. Specifically, property such as a PC "intended to be used in any manner" to commit a copyright crime would be subject to forfeiture, including civil asset forfeiture

They'll be able to seize your PC like a they would a drug lord's vehicles and property. You have to be kidding me. In addition, what is a PC "intended to be used in any manner" to commit a copyright crime? How about anything running Linux with libdvdcss loaded on it! Ya know, so you can play those DVDs you legitimately purchased on equipment you own? Except that doing so is a violation of the DMCA?

Re:

Somehow I doubt that would help much.

Re:The RIAA will be getting all the help it needs,

The IPPA would insert a new prohibition: actions that were "intended to consist of" distribution.

(from http://news.com.com/8301-10784_3-9719339-7.html [com.com])

In other news, the Attorney General announced that "suspicion of resisting arrest" will be added to Ameri

Re:

If we get life imprisonment for using pirated software, what will be the penalty for killers, rappers, etc... ? They'll be shot on sight? This is getting ridiculous!

Well I don't know about the killers, but personally I have no problem with rappers being shot on sight. Finally an alternative use for my mime rifle!

Re:

From TFA: "Create a new crime of life imprisonment for using pirated software. Anyone using counterfeit products who 'recklessly causes or attempts to cause death' can be imprisoned for life." That means if you use pirated software and it causes someone's

Let's stop deluding oureslves, shall we?

The 'files shared = sales lost' formula has never been proven by the RIAA, Warner Music, EMI, Vivendi Universal and Sony BMG, or anyone else.

I stopped reading there. While everyone can agree that it's wrong for the RIAA to prosecute people who do not have the means to commit copyright infringement, let's not forget that it's still against the law when it does happen. Slashdot is, in general, a technical and smart crowd, let's not pull the wool over our own eyes. It just makes us look foolish.

Re:Let's stop deluding oureslves, shall we?

The 'files shared = sales lost' formula has never been proven by the RIAA, Warner Music, EMI, Vivendi Universal and Sony BMG, or anyone else.

I stopped reading there. While everyone can agree that it's wrong for the RIAA to prosecute people who do not have the means to commit copyright infringement, let's not forget that it's still against the law when it does happen. Slashdot is, in general, a technical and smart crowd, let's not pull the wool over our own eyes. It just makes us look foolish.

It's a perfectly valid statement to be making, the RIAA is pushing through all of the laws based on beeelionnns of $ stolen, stolen I tell you. They base the damages they are seeking on it. And yet, every peer reviewed study says it increases sales for the independent musicians - the members of the RIAA won't share detailed sales information so it's not possible to determine specifics. However, IIRC - one study found that sales jumped after every college break during which file sharing jumped.

Also check out Eric Flint's comments @ Baen books free library from back in 2002 reguarding his sales figures when he releases a book on the free elibrary. From the same collection of essays, I suggest you read the one reguarding copyright as presented in 1841 in England - pay special attention to the last paragraphs, the man is just frighteningly accurate.

Now, yes, it's illegal - not sure if it should be as the current scope of copyright law does not appear to strike a balance between the rights of society & the rights of the content producers. In that sense it needs some serious revamping. The DMCA is just bad - any law that garantees your right to fair use, but denies you access to the tools to exercise that right is bad.

So perhaps you should go back & read the whole artical & educate yourself about the whole argument not just 'stealing is wrong' - in a very real & moral sense, copyright steals from society, which is why Benjamin Franklin objected to it. The laws reguarding copyright are supposed to balance the need to compensate creative people with the rights of society at large to make use of what has been created. They do not currently balance anything.

Oh COME ON! You pull a Javert and get a +5???

(In case you don't know who Javert is [wikipedia.org], search the wikipedia)

The 'files shared = sales lost' formula has never been proven by the RIAA, Warner Music, EMI, Vivendi Universal and Sony BMG, or anyone else.

I stopped reading there.

WHY? Just because something is illegal (this means, that some guys voted a law against it - not more, not less, period) doesn't mean that it will automatically hurt the sales of the record companies. Yes, downloading songs is illegal. But so is protesting against president Chavez if you live in Venezuela. The moral and ethics of music piracy are NOT at discussion at this point. What is at discussion is: a) Whether Marie Lindor actually infringed copyright, and b) whether she made the RIAA lose thousands of dollars in music sales.

Prof. Pouwelse did an empyrical analysis, and this means SCIENTIFIC RESEARCH, proving that just because people downloaded a song from the internet, doesn't make the RIAA lose sales from it. This can have a tremendous impact on RIAA's fines, because if you only made them lose 1 cent by downloading a song from the internet, the stratospheric fines they're asking you to pay might only become a small fine of ten bucks.

I'm telling you, I have the solution to this ...

All we have to do is somehow get the RIAA in a legal fight with the Scientologists...

The Netherlands sez: America has no privacy.

One of the links in the summary goes to the judgement on appeal from a case in the Netherlands of the RIAA (or whatever their equivalent is... there's like 35 plaintiffs) vs. some ISPs. The court ruled, twice, that the ISPs didn't have to turn over names & addresses based on the list of IPs the music companies gave them. The main reason was because the court didn't believe that MediaSentry was a proper means of obtaining them.

One of the reasons they didn't like MediaSentry was this:

The Preliminary Injunction Court also considered the fact that MediaSentry is an American company and that the United States of America could not be considered to be a country that has an appropriate protection level for personal data

At least the rest of the world has figured out what most of us Americans haven't: America's right to privacy is a rapidly disappearing illusion.

Tune Out, Turn Off, Drop Out

The RIAA only has power because we enable it. With the exception of the random but rare story about some grandma in Peoria who didnt have p2p, the vast majority find themselved bullied by the RIAA because they coveted some drivel being peddled by an RIAA member. Stop buying it, stop borrowing it, stop stealing it, stop listening to it and the RIAA has no power at all. Those that continue to support the RIAA's causes either legally or illegally are entitled to do nothing other than stop bitching about it.

Re:

Just like deleting spam from my mailbox will stop spammers and scammers from flooding everyones mailbox ? Yeah, right...
It only takes a minority of paying idiots to give these people the funds to keep on bugging the rest of us.
And in the case of RIAA, I'm

A couple of monts later....

"It was Prof. Pouwelse's scathing analysis of the RIAA's MediaSentry 'investigations' (PDF) in a case in the Netherlands that caused the courts in that country to direct the ISPs there not to turn over their subscribers' information (PDF), thus nipping in the bud the RIAA's intended litigation juggernaut in that country."

And a couple of months later Brein (the dutch ..AA equiv.) won a case against UPC (an ISP), forcing them to hand over the subscribers information: http://zoeken.rechtspraak.nl/resultpage.aspx?snelz oeken=true&searchtype=ljn&ljn=AY6903&u_ljn=AY6903 [rechtspraak.nl]
(in dutch btw).

Re:A couple of monts later....

Yes, but that was a much different kind of case, one based on real evidence.....

The RIAA Against Slashdot

This battle has become the combined weight and resources of the four major record companies funneled through the RIAA, against the might of an aroused Slashdot user community. Every insight, every chink, every technical shortcoming in the RIAA's boilerplate cases that's exposed, discussed, and dissed here helps the defense. The RIAA affiliated companies may believe they have bought the Congress, but the public at large are still the ones with the votes. I'm certain no corporation, or group of corporations, has ever fought a battle before against so many thousands of people able to organize and provide their own insights, each able to expose one more little lie in the Plaintiff's snake-tongued, slippery arguments.

Re:Assumptions

>The 'submitter' seems to have made a lot of 'assumptions' about how closely
>we have been following this 'case'.

Maybe there is a reason why Slashdot editors post news of this case quite often. Maybe you should follow it a bit more closely. It is very important, in my humble opinion. It is The Normal People vs the MAFIAA, their scare tactics and their scandalous racketing scheme.

NewYorkCountryLawyer has huge balls for fighting them face to face, and as average geeks, we should thank him for his work.

And I will start right now : NewYorkCountryLawyer, thank you.

Re:

I'm sorry, but your reply might be considered copyright infringement in some countries. Are you prepared to be deported to one of these countries for a criminal theft trial?

Saying that you live in the US and other laws don't apply to you won't hold up.

Re:Being on slashdot

I've always been impressed that you had the technical acumen to show up regularly here on slashdot, as well as to seek the advice from those here who have a more detailed technical knowledge. The **AA may have bucketloads of money, but it just goes to show that it doesn't always work when a community works together, and a lawyer is smart enough to use the resources of "the people" instead of an overpriced, overpomped "expert." People often have commented on slashdot "so what are we going to do except bitch about it." The fact is, however, that there are quite a few field experts here (IT, legal, etc), and when we work together to share knowledge and fight against the idiocy that goes on in today's courtroom, we can make a difference. Possibly a much bigger difference than the whole "boycott" movement.

This is a remarkable community, and I love being a part of it.

I'll never forget the first time I discovered it. I'd checked my sitemeter and found some referrals from "slashdot.org". I went there and found what appeared to be a "forum" or "discussion board", but one which was unlike anything I'd seen before. There was an incredible, highly intelligent, debate going on over a post on the Elektra v. Santangelo [blogspot.com] case.

People were debating over issues -- sort of like a Talmudic debate -- citing to different portions of the transcript, and to different portions of different legal documents, for support of various points. They seemed to be quite scholarly, and not unlike lawyers, but I didn't think it was a lawyer's site, so I asked my youngest son, who is a techie, if he'd ever heard of Slashdot. And of course he said "of course" and proceeded to tell me what it was. And my life hasn't been quite the same since.

One of my most memorable experiences was the "honor" of being roasted and villified by some, and defended by others, in my Slashdot interview [slashdot.org], and the ensuing comment period, over my abruptness with some of the questioners and commenters whom I considered a bit troll-like.

I am proud to be part of this robust, questioning, diverse community, and would be overlooking a valuable resource were I not to seek the input of its members.