p2pnet - rss feed: Lindor vs the RIAA: round I0
p2pnet.net news:- The “massive distribution” lawsuit lodged by the multi-billion dollar Big 4 record labels against Marie Lindor, a 57-year-old New York nurse’s aid, continues to pick up steam.
Warner Music, EMI, Vivendi Universal and Sony BMG’s RIAA has produced Dr Doug Jacobson as an expert witness. Hired to investigate Lindor’s hard drive, Jacobson was presented as someone who knows his way around computer systems. He was to have unearthed hard evidence of her alleged online digital music distribution activities.
Instead, in a lengthy deposition, Lindor’s lawyer, Ray Beckerman (right), easily demonstrated Jacobson wasn’t quite the shining light the RIAA had hoped he would be.
In the latest in a to-and-fro series of motions and counter motions, Beckerman asked that Jacobson be excluded because, he said, the latter’s testimony suggested he didn’t meet the high standards demanded for expert testimony.
Richard Gabriel, a lawyer with Holmes Roberts & Owen, the RIAA’s (Recording Industry Association of America) current chief legal eagles, challenged the motion, and now Beckerman has come back with a detailed list of reasons explaining why Jacobson’s testimony doesn’t amount to a hill of beans, and why Gabriel’s bid should be dismissed.
Writing to judges David G. Trager and Robert M. Levy, Beckerman states:
The opposition letter is a futile attempt to draw the Court’s attention away from Dr. Jacobson’s actual testimony, and to attempt to create factual issues - and force a Daubert hearing, thus saddling defendant with yet more expense - when none is merited.
1. The papers consist primarily of vague, unsworn testimony by plaintiffs’ counsel which directly conflicts with the testimony of Dr. Jacobson, suggesting to the Court that there is a great body of ‘other’ people out there doing work similar to that of Dr. Jacobson using similar techniques, and that there is a great body of prior caselaw finding Dr. Jacobson’s techniques to be reliable. Dr. Jacobson’s testimony contradicts all of that.
2. The papers are padded shamelessly with voluminous exhibits consisting of Case 1:05cv01095DGTRML Document 172 Filed 05/17/2007 Page 1 of 3 doctored text ‘documents’ prepared during, and for purposes of, the within litigation, years after the August, 2004, ‘investigation’, which plaintiffs’ counsel disingenuously pass off as ‘evidence’ garnered during the investigation. Dr. Jacobson’s testimony professes ignorance as to how these documents were created.
3. Plaintiffs argue - repeatedly and nonsensically - that the testimony of Dr. Jacobson is ‘undisputed’ and that the findings of MediaSentry are ‘undisputed’. As the Court knows, (a) counsel conducting a deposition is not there to ‘dispute’ anything, but is there to ask questions; and (b) there is no need to ‘dispute’ either if their testimony is inadmissible.
4. No amount of doubletalk by counsel, or reams of irrelevant exhibits, can ever alter the fact that Dr. Jacobson testified as follows:
He developed ‘on [his] own’ the process that he used to determine whether a particular computer had been used to upload or download copyrighted works. (T38).
He has never submitted his method for testing by any testing body. (T4041).
He is not aware of anyone else ever having used his method. (T41).
His method has no standards (T42).
His method has no controls (T42).
He is not aware of his method having been subjected to any form of peer review. (T41).
His method has never been published (T41).
He does not know what the rate of error is for his method, and ‘guesses’ that there is a potential rate of error, but doesn’t know what it is (T41).
His method has never even been vetted by the scientific community, let alone accepted by anyone in it other than himself, let alone generally accepted by others in the community. (T42).
He does not know what processes or procedures were used by MediaSentry. (T31).
He does not know what software MediaSentry used (T31).
He does not know whether MediaSentry’s software was proprietary or offtheshelf (T32).
He does not know if MediaSentry’s software has been peerreviewed or published (T32).
He’s never before testified as an expert in any trial or deposition (T32)
His methodology has never been found by any tribunal to be reliable (T33)
His method is a year and a half old (T37).
He does not know if the methods used by MediaSentry have ever been ‘tested by any testing body.’ (T42).
He does not know if MediaSentry’s methods have ever been subjected to any form of peer review, and as far as he knows, MediaSentry is not peerregulated. (T42, 43).
He does not know if MediaSentry’s methods have been published. (T42).
He does not know if MediaSentry’s methods are secret or not (T42).
He does not know if there is a known rate of error for MediaSentry’s methods, but assumes there is a potential rate of error. (T43).
He does not know of any standards for MediaSentry’s methods (T43).
He does not know of any controls over MediaSentry’s methods (T43)
He does not know of MediaSentry’s methods being generally accepted in the scientific community. (T43).
Case 1:05cv01095DGTRML Document 172 Filed 05/17/2007 Page 2 of 3
He just assumed the accuracy of the MediaSentry materials upon which he relies. (T43).
He made no attempt at all to test alternate explanations, even though he can think of alternate explanation (T4647).
He made no attempt at all to analyze possible security vulnerabilities of the subject computer, even though he can think of such vulnerabilities (T4748)
Under well settled principles, Dr. Jacobson’s testimony is inadmissible as a matter of law.
In the most significant development yet, and one which is certain to ricochet among most if not all of the thousands of outstanding Big 4 sue ‘em all cases, Beckerman has hired Dr Johann Pouwelse as Lindor’s own expert witness.
Based in Amsterdam, Holland, professor Pouwelse is famous as an expert in peer-to-peer communications and has already roundly demolished evidence presented by other Big 4 specialists.
