I know you'll find this of interest. The expert witness retained by Marie Lindor's attorney, Prof. J.A. Pouwelse, the same professor who provided the expert witness declaration in Foundation v. UPC Nederland in the Netherlands, has prepared his report in UMG v. Lindor, and it's now filed and available on Recording Industry vs. The People's website. I've read through it quickly, and it seems to agree with many of your comments when attorney Ray Beckerman asked to pick your brains regarding the RIAA's expert witness, Dr. Doug Jacobson's reports. I have a local copy for you [PDF], and I am sure you'll enjoy reading it.
He concludes that copyright infringement has not been proven, that the Media Sentry reports were "factually erroneous", that their techniques have never been properly tested and are simplistic, and that there was a lack of "proper scientific scrutiny" evident in the other side's expert witness's work. He actually goes further, writing that the Jacobson reports demonstrate "borderline incompetence." Which is pretty much what you concluded.
I have to say, watching the Pick Your Brains projects -- you pooling your skills and knowledge to help attorneys understand the tech and therefore be more effective in what they do -- is very gratifying. It's a key goal of Groklaw to help attorneys understand technical matters better. I hoped it would work, but you never really know until you try something in real life. So, we've been trying it now for a while, and whether it's searching for prior art or explaining technical matters, I see now for sure that it is working, and we can make a positive contribution.
Update: I forgot to tell you that Media Sentry's former CFO is going to jail for six months for backdating stock options. MediaSentry was acquired by SafeNet a few years ago. Here's the story as told by the Ottawa Citizen:
Crime News: Carol Argo, the former chief financial officer of SafeNet Inc., which owns the former Chrysalis of Ottawa, was sentenced to six months in jail and fined $1 million after pleading guilty to securities fraud for backdating employee stock options. The judge in the case said she could have been hit with nine to 10 years in prison, but he recognized her charitable work. She has repaid $236,000 in profits, but her lawyer said she would likely not be able to pay the fine. "My apologies to everyone who was harmed by this," the 46-year-old former executive told the court.
Portfolio.com tells it a little differently:
She apologized during sentencing, but Judge Rakoff was unmoved. While noting her otherwise unblemished record, he added that "she also was willing -- when push came to shove -- to break the law."
Here's the Expert Witness Report as text, and notice in particular on pages 5-7 how important it is for an attorney to know the right questions to ask an expert witness:
Recording Inc., et al. v. Lindor
- NY Case Number: 05-cv-1095
witness report by Dr. J.A. Pouwelse
General statements on
The topic of Peer-to-Peer (P2P)
is attracting wide spread attention. This new technology enables
people to distribute information and communicate at only marginal
P2P file sharing is both
controversial and popular. File sharing means connecting millions of
computer hard disks together into a single network. Roughly 74% of
all Internet traffic consists of P2P file sharing traffic
Content creators are under pressure from two sides. On one side,
their customers are using P2P file sharing to download movies, music,
and songs for free.
On the other side, bands such as Radiohead using the Internet to
With P2P artists themselves can reach a worldwide audience of
millions at only marginal cost. Within KaZaA, users can use
"micropayments" to pay artists directly and download
legally. The economic impact of file sharing is still poorly
understood. For instance, a leading study by Harvard researchers was
unable to find a relation between illegal downloading and decreases
in Audio CD sales.
Measurements of file sharing
File sharing networks are
difficult to measure. Only a few companies and universities in the
world have the required expertise to conduct measurements of file
sharing networks. It is very difficult to directly establish that a
certain computer contains copyrighted works and makes them available
to others through a file sharing application.
The first problem is that we need
to have an understanding of the file sharing application itself. This
is difficult due to the complexity of such applications and lack of
detailed documentation about their inner workings. The second problem
is that we often do not have physical access to the computer under
investigation. When we can only observe this computer through The
Internet, we are severely limited in our observational power. The
third problem is that The Internet and P2P are dark places where
people commit fraud and abuse. All obtained information must be
treated with suspicion. Users use fraudulent means to obtain a higher
download speed from their broadband ADSL connection, install abusive
software to obtain higher downloads on a file sharing network (at the
cost of other people), and like to fool other people with fake
content on file sharing networks.
The KaZaA file sharing system
Only one detailed study has been
conducted of the KaZaA file sharing network.
This study is conducted
by the research group of
Professor Keith Ross from Brooklyn Polytechnic University. They
investigated how KaZaA operates and measured
This research group focused on
the pollution in KaZaA.
Pollution refers to meaningless files and mismatches between filenames and
their actual content. KaZaA was found to be severely polluted. For many recent pop songs, more than 50% of the copies were
polluted. Our research group at Delft University has found similar
pollution levels in KaZaA for all types of content.
There are three causes of
pollution. First is the unintentional pollution by average users when
they insert files such as
“credit_card_statements.doc” into the system.
Second is the intentional pollution by users for fun. For example, a file
named “hot big blond women playing around.mpeg” that
contains a movie of a laughing clown. Third is the
active pollution by companies in an attempt to reduce piracy. Several companies exploit weaknesses in
KaZaA in order to pollute the search results of popular queries.
Their aim is to reduce the usability of
KaZaA in searches for popular copyrighted works.
The KaZaA-lite software is also
described in the measurements of Keith Ross's team. This popular, modified version of the official
KaZaA client provides improved performance. However, this performance gain comes at the cost of others
and KaZaA-lite lies to KaZaA users to obtain more performance. This phenomenon indicates that
information from the KaZaA network must be treated with suspicion.
The KaZaA software communicates
with numerous other computers on The internet during its operation.
Communication can consist of
transmission of advertisement data, instant messages, actual file
transfers, and control traffic for
maintaining the file sharing network. KaZaA has a special feature to
increase file downloads, called multi-peer
downloading. When the same file is present on several computers it is possible to download pieces of
this file in parallel from multiple computers.
Accurate file sharing
Due to the complexity of file
sharing applications, limited observation powers, rampant deception,
high pollution levels, and multi-peer
downloading it is nearly impossible to obtain solid evidence and
detailed checks are therefore required.
I believe that the following
6-step test takes the necessary precautions when trying to establish
if a computer is making copyrighted
works available for download.
- Collect filenames by searching
the network using keywords.
- Filter out polluted files by
checking the actual content.
- Establish that a specific file
can be downloaded from a certain computer. File sharing applications
often talk to numerous other computers at once. Sufficient
hygieneprecautions should be taken by blocking traffic from all
possible other computers.
- Investigate if the computer is
possibly highjacked or the Internet connection is shared with
others. Check if a computer is cracked, for instance, running an
open proxy or a hacked Microsoft Internet connection sharing
application. A measurement is needed to establish if there is no
significant difference in traceroute timings, SYN responses, and
KaZaA protocol rendezvous times.
- Track this computer for several
days if it does not go offline for reliable IP-address translation
by an ISP.
- Establish that no IP address
spoofing, BJP hijacking, or other tampering with IP addresses has
Review of case
After reviewing the material
listed below I conclude the following:
A) two reports by Dr. Jacobson
were based in total on roughly an hour of work
Plaintiffs witness Dr. Jacobson
deposition transcript at page 53 states:
"Q. And how much time
did you spend on the April 2006 report in this case?
A. Without seeing the billing
records, I can only guess but I think it was 45 minutes."
and on page 54 states:
"Q. And how much time
did you spend on the December 19th declaration?
A. Maybe 15 minutes."
In my opinion this limit[ed] amount
of effort spend investigating matters supports a notion that there
has been a lack off both in-depth analysis and proper scientific
scrutiny. It is impossible to go through all the exhibits in one
hour. For instance, examination of exhibit 11 (a 139 page document)
and discovery of anomalies and forensic clues such as "desktop.ini"
and "kmd251_en.exe" requires a few hours.
B) the April 2006 report
includes in my opinion factually erroneous and misleading statements
The first witness report of Dr.
Jacobson dated April 7, 2006 marked as exhibit 16 shows in statement
marked 12 on "The Internet and Addressing":
The Internet is a
collection of interconnected computers or network devices. In order
to be able to deliver traffic from one computer or network device to
another; each computer or network device must have a unique address
within the Internet. The unique address is called the Internet
Protocol (IP) address. This is analogous to the postal system where
each mail drop has a unique address.”
The above statement is factually
erroneous as networks of networks can have many duplicate IP
addresses. Many computers can be connected to the Internet with
identical IP addresses as long as
they remain behind
control points such as routers, firewalls, proxy servers, or similar
technologies. Furthermore, the comparison of IP addresses to mail
drop points in the postal system is misleading as this suggests a
degree of accuracy, simplicity, reliability; certainty, and
robustness to fraud. The same deposition shows in statement marked 13
on "Peer-to-Peer networks":
"The users of the peer-to-peer network often
think they are anonymous when they distribute files. In reality, they
can be identified using the IP address. The IP address of the
computer offering the files for distribution can be captured by a
user during a search or file transfer.
above statement is factually erroneous as an IP address captured from
a peer-to-peer network during search or file transfer cannot identify
a user (see the “Accurate file sharing measurements”
section above on computer identification). This statement
suggests precision where precision does not exist. Numerous technical
measures exist and are in use to make such identification impossible.
For instance, computers can share an external IP address, computer on
the same subnetwork can steal IP addresses, a computer can be cracked
and used by others as a proxy, or one can seize control of a large
block of adjacent IP addresses with a method know as "BGP
there is lack of knowledge on MediaSentry procedures, methods, and
The first report of Dr. Jacobson dated April 7, 2006
marked as exhibit 16 shows in statement marked 15 on "conclusions":
"I will testify to the procedures used and
results obtained by MediaSentry coupled with the information supplied
by defendants ISP, to demonstrate the defendant's Internet account
and computer were used to download and upload Copyrighted music from
the Internet using the KaZaA peer-to-peer network."
This report indicates that Dr. Jacobson has knowledge of
"procedures used" by MediaSentry. However, plaintiffs
witness Jacobson deposition transcript at page 32 states:
"Q. Do you know what processes and procedures
A. I do not know the inner works of
MediaSentry processes and procedures.
Q. Do you know what software they used?
The latter indicates that Dr. Jacobson is not competent
to judge the accuracy of information supplied by MediaSentry and his
analysis can in my opinion be regarded as hearsay information from
third party MediaSentry.
Evidence exists that information supplied by MediaSentry
was flawed in other cases. Numerous institutions have received false
MediaSentry claims regarding peer-to-peer activity on their computer
network, MediaSentry supplied information often involved non-existant
or inactive IP addresses. Erroneous MediaSentry claims have been
reported by: Yale University, Princeton University, University of
California Los Angeles, University of California Santa Barbara, UNC
Chapel Hill, University of Northern Iowa, Virginia Tech, College of
William & Mary, Georgetown University, Glasgow University
Computing Service, Metropolitan State College of Denver,
Western Michigan University, Cleveland State
It is important to note that in the above cases the
Claims made by MediaSentry [were] checked for their validity by
full-time network administrators that employ numerous complex
technical tools which have direct access to detailed network
accounting data. Such full-time administrators, tools, and data are
not available in the case of Ms. Lindor.
Finally, to my understanding no independent review of
MediaSentry procedures and methods has ever taken place. Their
operation, accuracy, and error rate is unknown. From the presented
evidence in this case
I believe their procedures and methods are simplistic and fail the
6-step "Accurate file sharing measurements" test, as
there is lack
of knowledge on Verizon procedures, methods, and failure rate
witness Dr. Jacobson deposition transcript at page 128 states:
"Q. Do you know what procedures Verizon employed
to link Ms. Lindor's name and address to the alleged IP address?
witness therefore has no knowledge that provide insight into Verizon
procedures and methods for linking names to IP addresses. Exhibit 19
shows evidence of faulty MediaSentry information and/or faulty
Verizon information with regard to linking IP addresses. Page 1 of
exhibit 19 shows that:
"With regard to an additional eight (8) IP
addresses, after diligent searching, Verizon has not located any
information in its possession, custody, or control that is responsive
to the above-referenced subpoena. No session information
exists for the timestamp provided (see Exhibit B)."
Verizon response in exhibit 19 is
similar to the reports listed above concerning erroneous MediaSentry
claims. It is also possible that Verizon procedures and methods are
the cause for this misalignment. For instance, an IP spoofing attack,
a BGP hijack, or a simple clock skew of a DHCP server could account
for the problem of the missing information on eight IP addresses. Such
a clock skew would mean all Verizon supplied information is faulty,
including the information on IP address 22.214.171.124. One can only
speculate on what exactly has happened without further information
from both Verizon and MediaSentry. The missing IP addresses on
Exhibit 19 prove that the subpoena which allegedly puts blame on Ms.
Lindor is flawed.
the exhibits contradict the conclusion of copyright violations
exhibits contradict the conclusion that Mr. Lindor used KaZaA on her
computer to distribute copyrighted works. The exhibits show no link
between MediaSentry information and wrong doing by Ms. Lindor. The
computer of Ms. Lindor is investigated by plaintiffs witness Dr.
Jacobson. This investigation found "no evidence of the KaZaA
program", as stated on the most recent December 2007 document
titled "supplemental declaration and expert report" on Page 3
"I will testify based on the forensics
examination of the hard drive that was copied from the computer owned
by the defendant that the computer had no evidence of the
KaZaA program nor was there any evidence of the KaZaA program ever
being installed on the
computer; although the
MediaSentry data showed the computer connected to the defendant's
Internet account was running the KaZaA program."
described in the section on "measurements of file sharing
networks" it is very difficult to establish links. The
lack of KaZaA hard disk evidence means the claim of copyright
violations by Ms. Lindor is unfounded.
the investigative process has been unprofessional
my opinion the three reports and deposition by witness Dr. Jacobson
indicate that the investigative process had the following
alternative explanations [were] not investigated,
no checks [were] conducted to check the accuracy of finding (potential
rate of error),
no standards or controls exist,
the used methods are self-developed and unpublished,
the methods are not peer reviewed and not accepted by the scientific
opinion is based on both the contents of the reports and the
following deposition statements. Plaintiffs witness Dr. Jacobson
deposition transcript at page 46 states:
"Q. I'm sorry, I misspoke. Do any of your three
reports discuss the possibility of any alternate explanations other
than KaZaA appearing on a computer owned by Marie Lindor?
Q. Are you, as we sit here, capable of thinking of
some alternate explanations?
at page 38 it is stated:
"Q. How did you learn your method of
determining from the MediaSentry materials whether particular
computer has been used for uploading or downloading copyrighted
A. It was a process that I developed.
Q. You developed it on your own?
page 41 and beyond state:
Has your method of determining fro[m] the MediaSentry materials
whether a particular computer has been used for uploading or
downloading copyrighted works been tested by any testing body?
A. Not that I have submitted.
Q. Do you know anyone else that is using your
method, other than you?
A. Not that I'm aware of.
Q. Has your method of determining through the
MediaSentry materials whether a particular computer has been used for
uploading or downloading copyrighted works been subjected to any form
of peer review?
A. Not that I'm aware of.
Q. Has your method of determining from the Media
Sentry materials whether a
computer has been used for uploading or downloading
copyrighted works been published?
Q. Is there a known rate of error for your method?
Q. Is there a potential rate of error?
MR. GABRIEL: Object to the form.
A. I guess there is always a potential of an error.
Q. Do you know of a rate of error?
A. To my process, no.
Q. Are there any standards and controls over what you
Q. Have your methods been generally accepted in the
A. The process has not been vetted through the
to the above listed characteristics the investigative process can be
regarded as unprofessional.
reviewed four written statements of expert witness Dr. Douglas W.
Jacobson (April 2006, October
December 2006, and December 2007), the deposition transcript, and
exhibits 1 through 19.
material considered and the review of case material described above
shows borderline incompetence of
plaintiffs witness Dr. Douglas W. Jacobson and the allegations of
copyright violations are not proven.
of Jan 1st 2008 I am the technical & scientific
director of a 19 Million Euro research project investigating the
next-generation of Peer-to-Peer technology, called P2P-Next. The
P2P-Next research is sponsored by a research grant from the European
Union under the 7th framework program. P2P-Next includes
22 pan-European partners, such as the Finish national research
organization (VTT), the public broadcaster of the UK (BBC), the
research unit of the German public broadcasters (IRT), the European
Broadcasting Union (EBU), and several large companies.
am an active scientist in the area of Peer to-Peer technology and
regularly present recent advances in this field at scientific
conferences and workshops in this area. My scientific publications
in the area of Peer-to-Peer technology and resource management have
been cited over 600 times.
an assistant professor at Delft University of Technology I'm
coordinating a group of currently 18 researchers conducting
experimental Peer-to-Peer file sharing research. At the time of this
writing this team is the world's largest non-profit group in this
area. My complete CV is available
been asked by the defending counsel for my opinions on the accuracy
of the statements made by Dr. Jacobson. This declaration is made for
the standard university fee of 220 Euro per hour plus (travel)
Janis Adriaan Pouwelse, Assistant Professor at Delft University
Technology in The Netherlands declare under penalty of perjury that
the foregoing is true and correct.
Date: 13 Feb 2008
from the "UNIversity Security Operations Group" (UNISOO)