Thursday, April 26, 2007

Ms. Lindor Moves to Exclude RIAA Expert Testimony For Failure to Meet Reliability Standards Under Daubert

In UMG v. Lindor, Ms. Lindor has moved to exclude the trial testimony of the RIAA's expert, Dr. Doug Jacobson, on the ground that his deposition testimony establishes that his trial testimony could not meet the standards for reliability of expert testimony prescribed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993) and Federal Rule of Evidence 702.

April 26, 2007, Letter of Morlan Ty Rogers to Magistrate Robert M. Levy*
Exhibit T (Transcript of Deposition)(Part 1)*
Exhibit T (Transcript of Deposition)(Part 2)*
Exhibit R (Report of Expert)*
Exhibit H (November 30, 2006, Hearing Transcript)(Part 1)*
Exhibit H (November 30, 2006, Hearing Transcript)(Part 2)*
Rule 37.3 Letter*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net
Slashdot
Digg

Digg!

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

17 comments:

ryan said...

/cheer
Lol been waiting for these papers sense we got to see Dr. Jacobson's deposition.

Alter_Fritz said...

Thank's for providing the 2 extra links. keep this behaviour in future postings if applicable please. you are faster then trial and error googleing :-)

Alter_Fritz said...

P.S. for fellow non legalese speakers "in limine" isn't the new beta of limewire.

http://en.wikipedia.org/wiki/In_limine

;-)

Jadeic said...

Ray, this is where all your painstaking groundwork finally begins to pay off. It makes me proud even to be a bystander at these events. And a few words of praise are due to Ty: another beautifully crafted and concise submission that contrasts sharply with the lacklustre blether of your opponents.

Dave

jbrooks said...

Dr Doug claims to be a Certified Forensic Computer Examiner by IACIS. Here is the Code of Ethics for IACIS:

IACIS® members must demonstrate and maintain the highest standards of ethical conduct.

IACIS® members must:

* Maintain the highest level of objectivity in all forensic examinations and accurately present the facts involved.
* Thoroughly examine and analyze the evidence in a case.
* Conduct examinations based upon established, validated principles.
* Render opinions having a basis that is demonstratively reasonable.
* Not withhold any findings, whether inculpatory or exculpatory, that would cause the facts of a case to be misrepresented or distorted.
* Never misrepresent credentials, education, training, experience or membership status.
* Advise and provide assistance to all qualified IACIS® forensic examiners, regardless of agency affiliation. (end of code)

By Dr Doug's sworn testimony didn't he admit his methods have not been validated? Are there any other potential violations of the Code of Ethics that can be gleaned from his deposition? Should suspected violations be reported to the certifying body?

Alter_Fritz said...

Render opinions having a basis that is demonstratively reasonable.

"Are there any other potential violations of the Code of Ethics that can be gleaned from his deposition?"

I'm not sure out of my headif it was HIM that claimed that the HDD isn't the one they wanted, but if it was really him and not just the conclusion of RIAA-Richard then yes, I would say he violated the aforementioned code!
Because he claimed that the hdd showed that no router was involved at the timepoint in question. while at the same time RIAA claims this isn't the HDD after all that was connected. So these 2 conclusions are excluding themself logicly and if he really had claim both he should be reported IMO.

Arteekay said...

"* Not withhold any findings, whether inculpatory or exculpatory, that would cause the facts of a case to be misrepresented or distorted."

Keep in mind, Jacobson didn't know the meaning of inculpatory or exculpatory, Ray had to define them for him.

Alter_Fritz said...

arteekay:
Not knowing what something in the code of conduct means because you don't understand the used words, isn't an excuse if we apply rules of law here.
If I remember that's one of the key points those lawguys always talk about. in german it's "Unwissenheit sch├╝tzt vor Strafe nicht".
I guess you have a similar catchy phrase in english ;-)

But hey, do we even know if he is a IACIS® member?

If I remember correctly his CV does not mention who the certifying body was/is.

For all we know, maybe he just completed one of those courses from the software manufacturer so he has now a nice laserprinted piece of paper on his wall from them and thats why he claims in his CV that he is "certified". (That he was oviously not the best in that training class can we see for example from his nonobservation of softwaremanufacturers best practise recommendations about documentation)

Anyhow even if he not smart enough to follow simple code of conduct, this guy might have other more serious problems; "lying" under oath for example: Exhibit T P96 L20 "Metadata can be changed and is not present on original CD recordings. The second part of that answer is simply not true! Just ask the plaintiffs SONY about it! Or invite me as a wittness against him to NY. I would be happy to show him more then one of the original CD recordings I'm looking at right now that do contain those metadata about artist, title etc.
(Of course if you are afraid about interacting with rootkit "criminals" like Sony, or you don't want to invite a stranger from Germany to NY, you can also simply click here.)

Maybe he should better pray that the judge will dismiss all his "junk science" and that those innocent guys from the about 200 reports he furnished for the RIAA so far will not name him as someone also responsible in the aftermath of some class action someday...

Oh and sorry I must admit that I bought many many original CD's from those gangsters.
But I beg for mercy.
I did it before I learned how bad SONY-BMG with their rootkit are and before I learned about this blog. So all the lost sales must the Plaintiffs atribute now to the behaviour of their CD sales devision and this blog! Not to some "piracy".
Sue Ray for lost sales. ;-) He is of course to blame for pointing out how evil organised music are! Organised music are the innocent victims as we all know.

Ray Beckerman said...

Guess what?

Dr. Doug is being deposed Monday in Atlantic v. Andersen.

Alter_Fritz said...

nice to know, so ask Ms. Andersons counsel to record that one -if it is prodecurally allowed- and upload the mp3 as a torrent on the pirate bay.

Artists that are fed up with the RIAA-business model based on artificial scarcity are using TPB now * also as a promo tool "to reward the customers for stealing their album" according to their websiteinfo.

* http://www.nin.com/current/index.html or http://thepiratebay.org/user/nindotcom/

arteekay said...

Alter_fritz:

I was pointing out the irony, not trying to excuse Mr. Jacobson (assuming the doctorate is honorary, lest I lose more faith in the US educational system).

Ray:

Please tell us we'll get to read the next thrilling installment?

Sardon said...

If Jacobson is a member of IACIS and didn't know the meaning of inculpate or exculpate it means he didn't bother to either read or understand their code of ethics. However, a cursory search of his CV and the transcript does not reveal the name of any certifying body--which is curious--nor membership in any computer forensics organization. In point of fact he does not claim to be a member of any "peer regulatory body," as per his deposition, p. 5. His CV claims he is a "Certified Computer Forensic Examiner," but mentions no certifying body as if it were self evident. This is even more suspicious than saying in your CV that you have a "College Degree in Computers" but omit what degree and what college you received it from.

A quick Google reveals that the International Society of Forensic Computer Examiners (ISFCE) does not use the phrasing "CCFE." They offer "CCE" certs, not "CCFE." The IACIS offers a two week course with no training prerequisites, but their certs are called CFCE and CEECS which doesn't jibe with the cert Jacobson claims to have. Oh, and to be a member or take their training you have to be a sworn law enforcement officer or "full time civilian employee of a law enforcement agency." Jacobson is neither. So, who certified Jacobson?

Since there is no universal standard for certifying certified forensic examiners--though some organizations have trademarks on certain phrases-- the organization that granted Jacobson's cert is of special interest since anyone can grant a cert in a field that is unregulated. It's like calling yourself a "Certified Life Coach." (Ooohh, Ahhhh. "Certified.....")

In some cases, "certification" merely means that you pay a large sum of money to a forensic software company who trains you for a few days and then says you are "certified." Such certifications are not an indication that the holder of such a title is qualified to testify in court as an expert witness--hair stylists are required to have far more training than that just to cut hair in a Supercuts franchise and I suspect they are not considered expert witnesses.

As to meta data on CDs. The original and still standard audio CD format--called "Red Book" format based on the technical specifications document--has no meta data what so ever. Red Book audio tracks are nothing but audio data--unless you consider a track number "meta data." It is this fact that led to the development of the CD Database which became Grace Note. Itunes uses Grace Note via the internet to look up Album names and track names based on a guess of which cd it thinks you are importing. It does this based on the number of tracks and on the length of those tracks. This method is imprecise and sometimes names your CD wrong. (Grace Note has more sophisticated methods to ID CDs but they are not incorporated into iTunes at this time.)
The data on Grace Note was and is submitted by users. Because of Grace Note, many people who rip CDs will have the same metadata added to their imported tracks, but all CD metadata is editable if you care to.

jupiter said...

"But hey, do we even know if he is a IACIS® member?"

The IACIS membership CD image, 550 megabytes, is available at the link below. There's a password on the zipfile, so of course it's uncrackable ;-)

http://www.iacis.info/iacis2005cd.html

Alter_Fritz said...

beware of the DMCA! If you crack that zip password you might end up in Gitmo if you are not an authorised member allowed to read the content!

jbrooks said...

In Exhibit R, the heading, he claims to be a Certified Forensic Computer Examiner, International Association of Computer Investigative Specialists.

Alter_Fritz said...

jbrooks
now as you say it.... ;-)

Ray, In case his today deposition isn't over yet, give counsel an emergency call and tell him to ask Dr. J. if he passed the re-certification test that would be due this year given the 3 year timespan mentioned on their website.
Oh, and can you tell us if he has in the meantime provided you with the exact number of reports you requested in his deposition?

Ray Beckerman said...

jadeic i'm glad you realized how painstaking it was....

i misspoke... jacobson II was scheduled in the leadbetter case, not the andersen...

unfortunately jacobson ii was postponed....