Friday, November 30, 2007

Judge Trager allows RIAA expert Doug Jacobson to testify in UMG v. Lindor despite satisfying none of Daubert factors

In UMG v. Lindor, Judge David G. Trager has denied Ms. Lindor's motion to exclude the testimony of the RIAA's expert witness Dr. Doug Jacobson.

Ms. Lindor's motion was based on the ground that Jacobson had conceded at his deposition that this testimony could not satisfy any of the Daubert factors.

November 30, 2007, Decision, Denying Defendant's Motion to Exclude Testimony of Plaintiffs' Expert and Granting Plaintiffs' Motion to Strike Affirmative Defense of Copyright Misuse*

* Document published online at Internet Law & Regulation

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

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Anonymous said...

This isn't a good sign. Judge Trager writes that:
"Jacobson bases his opinion on objective data provided by MediaSentry"

On what planet is the unlicensed investigator, MediaSentry, with an exclusive and highly profitable RIAA contract "objective?"

Anonymous said...

Ray, is this going to be apealled?

Anonymous said...

Lets see if I understand this reasoning correctly.

1) Feel free to hire your own expert to argue about Dr. Doug. (for the low budget defendant)

2) Antitrust discovery "can be" expensive. (for the multibillion dollar plaintiffs)

I guess Trager is saying that hiring experts is cheap..

Is it really that surprising that many people get so angry about lawyers, Ray?


Randy said...

If I read this right, the judge states that it's the jury's responsibility to determine what to think of the expert testimony. In spite of the fact that this witness seems to fail _every_ _single_ Daubert factor.

Why do judges keep giving the RIAA a pass when it relates to truly revealing their techniques, and the obvious gaping failings that they have, even to a non-techie?

One hopes that if this goes to trial, the defendant's attorney will question the expert about every Daubert factor, and end up making that clear.

I hope this makes this case more susceptible to appeal.

Alter_Fritz said...

Well, not every judge can be impartial, knowledgeable about the law and also technology literate.

Anonymous said...


To allow this fraud, and at the same time bless the record company's misuse of their copyrights defies the ability to be described in polite language. As for Dr. Jacobson himself, talk about conflict of interest and unclean hands! He blesses the RIAA's case, and they in return bless his company as the sole supplier of an acceptable copyright filtering system.

He cannot prove that a single illegal download ever happened by the Defendant. It was the "best friend" who cut a deal after admitting loading the KaZaA program on the computer and operating it who should be pursued here. That is the only person who should be judged guilty, and the case dismissed against everyone else.

Does the Supreme Court ever "suggest that it might be helpful"? Those are weasel words if there ever were. I expect the Supreme Court to speak in more definite terms than that, if they don't wish to be ignored by every other court below them.

I hope some counter-expert gets the great Dr. Jacobson to admit truthfully that IP addresses aren't assigned to people or computers. They are assigned to MAC addresses on cable and dsl modems. What is behind that modem, and with cable modems especially, exactly where they're physically located, is anybody's guess.

Someone should bring the "infringing modem" into court and challenge Dr. Jacobson to find any evidence of downloaded files or the KaZaA program running on it!

It's one thing to say that Dr. Jacobson doesn't fulfill all four non-exclusive Daubert factors. But to not qualify under EVEN ONE of them is appaling!

All I can say is APPEAL, APPEAL, APPEAL!

By the way, why even have a 20 day rule to strike if the court has no reason to ever follow it? An ignored rule is far worse than no rule at all.

As to the copyright pooling argument, it seems obvious to everyone except this judge that copyrights were pooled to gain the mutual advantage of jointly litigating these cases, as opposed to going it alone. This forces a defendant to face combined forces, rather than any single record company. There is even a good argument that no record company would go it alone in these cases because none has. This method of pooling also prevents any single company from making any deal separate from the other companies, which is clearly collusive in the extreme! This is clearly a benefit of pooling, and therefore misuse of copyright that should have its day in court! Just because this issue hasn't been litigated before doesn't mean it isn't valid. Every defense has to have had a first instance/impression somewhere!

I pray no other defendant in any similar case has to face this judge.


derivative said...

So, they now have an "expert witness", do they?

Ray, if it's not too late for you to designate an expert, I think that you should see if Vincent Cerf would do this for you. He's at Google right now, so his employer might be sympathetic to the cause...

Ryan said...

Oh I don't know, it DOES suck that Ray couldn't just get rid of Dr. Special because he is not a valid expert, however putting Dr J. on the stand could be bad if the defense can get a half way decent expert. You would hope that there are enough people on the jury that have at least a home router so you can make the simple connection there. After that well unfortunately it's expensive but it's at least an appealible factor if things go bad.

Anonymous said...

Could the jury at least be informed that this is an 'expert' that fails as an 'expert'?

I don't see the judge's logic behind this at all, as much as I would like to believe there is a sane, logical reasoning behind this decision. This seems to imply that anyone could just hire their friend as an 'expert' to counter any 'experts' that the other side has, given that it seems a possible conflict of interest doesn't matter and neither does the fact that the 'expert' isn't an expert. The whole point of having an expert testimony is so that non-experts can understand how something actually works and not for them to hear some fancy conjuncture that only exists in some parallel world a non-expert thinks up.

Alter_Fritz said...


the defense has already a while ago designated the dutch expert on p2p, Dr. Pouwelse (sp?), who is a real expert in this p2p stuff and shut down the record companies and their shoddy "investigation" in the netherlands on behalf of several dutch ISPs

Alter_Fritz said...

practice tip;
since Judge Trager seems to give great value that Dr. J. is a c"ertified expert" it might be useful to ask the guys from that certifying body if Dr. J has renewed his certificate. (IIRC fro the info on their Hmepage they certify for 2 years or so and then the person has to do new tests to get recertifed)

If I were a high ranking responsible guy in that organisation that certified Dr. J I would definetly being embaressed that we had certified a guy that state under oath that every serious forensic expert conduct investigations like he does (without record keeping, documenting ands so forth). What should the public think about the seriousness of my certifying body if a guy like DR. J embaress us and our profession so blatantly?!

Maybe even other forensic experts from that organisation would be happy to wash their organisations name clean by testifying against the "expert" and his "junk"?!!!

Anonymous said...


You would hope that there are enough people on the jury that have at least a home router so you can make the simple connection there.

Didn't you follow the Jamie Thomas trial? The RIAA ensured that no Internet literate citizens were allowed on the jury. You really don't expect them to do anything else in future trials, do you?

It would not be a trial by the Defendant's peers.


derivative said...


I understand that a perfectly good expert witness has been retained. But, if the RIAA manages to get the same sort of provincial jury they got before, they might make much of him not being from here, implying that Lindor's claims are so outrageous that she couldn't find an expert in this country to support her.

If "the father of the internet" were to testify, they would have a much harder time making that sort of FUD stick in the mind of either the judge or a jury.