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."

I'm not at all surprised

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".

He should know better!

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.

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.

Re:Hmmmm.

MafiAA "expert" spanked. Film at 11.
Please say there's film.

I'll wait for the torrent.

Hanlon's razor

Never attribute to stupidity what can be adequately explained by malice.

"borderline incompetent"?

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"?

Yes. The borderline is between incompetent and dishonest:)

Dur.

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

The witness is fully incompetent.

Some choice quotes from the report

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

...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.

Support the EFF!

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?

Damn...

When you get bitch-slapped by the DUTCH, you know you deserved it.

Observations from an expert witness

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..

Experts say what they are paid to say

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:Tsk, tsk

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

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

Re:Tsk, tsk

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

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

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

You just vouched for someone. You can't do that anonymously, it makes no sense and has no credibility.

Re:Tsk, tsk

Listen to piojo, he knows what he's talking about.

Re:Tsk, tsk

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

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.

Re:Not exactly unbiased is he?

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).