I am not a lawyer. I do not play one on TV. To the best of my recollection, I have never taken a formal course in law. So, how did I end up so involved with lawyers in court cases?
I got a start with investigation and legal issues, as various points came up in researching computer viruses. Computer viruses, when I started studying them, were new, and the legal system was massively unprepared for dealing with them. As various legal issues came up, those of us who were studying and researching in the field would have to find out more and more about the legal principles that prevented prosecutions for various types of legal issues and malware activities that we considered to be criminal. I also, again because of the computer virus research, was studying aspects of forensics, as it related to where various computer virus authors tried to hide their works. In addition, there were aspects of investigation that were raised, as various people tried to track down the origins of specific viruses, and, if possible, their authors.
Eventually, I collected this material and first prepared a course, and then wrote a book, on software forensics. This occasioned more study in legal principles, in order to ensure that I wasn't making drastic mistakes, in writing the book.
And, of course, in discussing the various topics and domains in the CISSP seminars, I had to address questions of why, and why not, as related to investigations and criminal prosecutions. I also reviewed a number of legal texts that were directed at technical issues.
I don't know how far this goes in preparing you for an occupation as a lawyer, but it has given me a significant background in the law and legal principles. This was handy in discussing legal aspects in the CISSP seminars, but it wasn't really what got me into working with lawyers. Although it was very helpful once I had to *start* working with lawyers.
No, what got me started working with lawyers was the reviews that I did of antiviral software. I was not one of the researchers who made a big name by becoming a great forensic programmer, or being able to pry out the interesting bits of a specific computer virus. No, my contribution to the field was generally much more mundane. So many people started asking about which of the various available antiviral products was the best, that I started reviewing them. I reviewed everything I could get my hands on. In order to broaden the spectrum of the antivirus products that I was reviewing, I started to build contact information for the various people, and companies, that were producing antiviral software. This became a resource for the research community, in terms of finding different approaches, and making contacts, when trying to develop new strategies for antiviral protection. I was writing to these companies, as often as I could, to obtain copies of their particular software.
And that's what got me involved with the lawyers. Not right away. As a matter of fact, in doing the reviews of the antiviral programs, I never made any money out of it, and, while I'm sure it was helpful to some people, I'm not sure how important my reviews were in the overall scheme of things. But I kept pretty much all the software, and antiviral systems, that I reviewed. Many years later, this turned out to be very important.
I hate patent trolls. Patent trolls are people, or companies, who think up a new product, and obtain a patent for that product. They never actually produce such a product. They have no intention of producing or selling the product. They're only intention is to sit on the patent until somebody else actually produces the product, or one that is fairly similar. At that point, the patent troll, holder of the patent, threatens to sue the person who has actually made the product. The person who has actually made the product, wanting to recoup their investment in developing it, usually caves in and pays the extortion that the patent troll demands.
At one point this started happening with the antivirus world. Patent trolls wrote up patent applications for various ideas that they thought might be useful in computer virus protection. They would then sit on the patents, until some company had produced a product that was similar enough to their patent that they could threaten to sue the company.
This is where I came in. As the patent trolls started picking on larger companies, with deeper pockets, and more access to lawyers, the large companies started to wonder if they could defend themselves against these demands and threats. The corporate lawyers would go to intellectual property lawyers, who would start doing searches in regard to people who knew about the field of antiviral software, and would, eventually, come up with me. The intellectual property lawyers would approach me, and ask my opinions of the patent that had been issued, and whether one could defend against it on the basis of prior art.
Generally speaking, the answer is yes. The patent trolls don't put an awful lot of thought into writing up their patent applications, and their ideas are not terribly original for the most part. So, when the intellectual property lawyers came to me with the situation, and the patent, and the product, I generally would be able to provide them with actual evidence that a previous program had, in fact, implemented what the patent holder had outlined in their patent application. Since the products that I was talking about generally predated the application for the patent, this qualifies as prior art.
One would have thought that the situation was fairly simple at that point. Unfortunately, with regard to intellectual property, nothing is ever simple. The patent office is a department of the government. When you challenge a patent, itself, and state that it should never have been issued in the first place, you are saying that the government has made a mistake, and was wrong. The government does not like to be wrong. And so, challenging a patent application itself is very difficult. The government will defend the issuing of the patent, regardless of the validity of arguments arrayed against them, or the existence of prior art.
So, the outcome of these early approaches, in regard to patent trolls, tended to be that the company the large corporation would go to the patent trolls, who had requested 100 million dollars, and say "We could invalidate your patent but it would be very expensive; here's $100,000, go away." The patent troll, who really hadn't expected to get 100 million dollars, would be happy to get the $100,000. The corporation, having saved 100 million dollars, is happy. Both the corporate lawyers, and the intellectual property lawyers, having made tons of money over this entire debacle, are happy. And the only one who isn't happy is me.
This was a rather interesting experience, with regard to dealing with lawyers, and the legal system. As noted, generally the outcome didn't involve a trial, so I was never asked to give evidence. In addition, I was not generally the person who would be chosen as an expert witness for a trial if someone did choose to take the case to court. An expert witness generally has a far greater sanding in the community than myself. No, what I was providing was simply evidence. In fact, the one time that I was called to give evidence in such a trial, I was not called as an expert witness, but simply as a witness of fact. The large corporation (several large corporations, in this case) was the plaintiff in the action, and the patent troll was the defendant. The patent troll demanded that I be called as a witness, even though I had simply provided objective evidence, in the form of the programs that represented the prior art that invalidated their patent. But this led to a few other interesting stories.
First off, there was the matter of traveling. This case was taking place in the United States. As I have noted elsewhere, in order to work in the United States, you need a visa. So, when the lawyers asked me to come and testify, I noted that they would need to write up a letter specifying that I was needed, and that there was nobody else in the United States who could do the work that I was required for, and therefore I should be given a visa for the purposes of the trial.
Even though they were lawyers, and must have had somebody in immigration law in their various offices, the lawyers were loath to do this. I don't know why: I never did figure that out. However, they were paying for my time, and for the airfares, so I figured if I got stopped somewhere on route, it was on their dime, and not mine.
On the particular routing that the law office set up for this itinerary, I was changing planes in Toronto. Again, as noted elsewhere, when you change planes in Toronto from a domestic carrier, to a flight to the US, you have to change terminals. There wasn't an undue time pressure in this particular case, but it was annoying. And, you will remember, I have had all these experiences with the border agents, and the TN-1 visas, and, in this case, didn't have the letter applying for a TN-1 visa. So I joined the line at the US Customs, and slowly moved up until I got to go to a desk. The person at the desk started with the standard questions: where was I from, was it business or pleasure, what was I going to be doing in the United States. I explained that I was going to be testifying in a court case.
At this point the entire tenor of the interrogation changed. The person behind the desk had recently transferred to Toronto from the Mexican border. About half of his time, while working on the Mexican border, had been spent testifying in court in various cases of people attempting to cross the border illegally, or bring illegal substances into the country. As soon as he heard that I was testifying in a court case, he was overwhelmed with sympathy for my plight. He didn't like testifying in court. He sympathized with my predicament. We talked about dealing with lawyers. He was my new best friend. Needless to say, I did not get stopped at the border.
Oh, but it wasn't over yet. As I say in my presentation about testifying in court, lawyers are not just in a different occupation from those of us in information security. Lawyers are pretty much a different *species*. When we have an issue, usually there is either an answer, or there is not. Very often we know whether or not there is an answer. And if there is an answer, often there might be various ways to approach that answer, but, once you have one, it solves the problem. And that's the end of things.
Not so with lawyers. Ask a lawyer a question; any question at all; and the answer is probably, "It depends." A lawyer can never give you a definitive answer.
But that's only one part of the problem. Lawyers need to know exactly what you will say on the witness stand. Lawyers need to know exactly the wording that you will use. This is very important. A specific word that you might use in answering a question on the stand may invalidate their whole case. So they have to make sure that you are not going to use that particular word. But lawyers cannot tell you what to say. Having the lawyers provide you with a script is known as coaching the witness, and is improper in our legal system. So, you spend hours, and hours, and hours, with different lawyers, over a period of days, with them asking you questions, and you answering, and the lawyers asking the same questions again, to get you to word your answer slightly differently, and only occasionally saying that you can't say that particular phrase. I'm sure it's annoying for the lawyers, and it certainly annoying as a witness.
Or, as a potential witness. In this particular case, there were a number of other people, whom I had worked with for many years, who were all called as the expert witnesses in the case. I was the only witness of fact, because I had provided the evidence: the prior art programs. Expert witnesses, at least in American courts, are allowed to sit in on the case. Witnesses of fact, are not. It is felt that the witnesses of fact would have their witness testimony tainted by hearing other witnesses of fact giving *their* testimony. So all of my friends were allowed to sit in on the court case, but I was not allowed to attend, and they were not allowed to tell me anything that went on in the court. So, when the day finally came that I was supposed to be called to testify in the case, I was put in a little antechamber, all by myself, for a few hours while they dealt with something else. Finally one of my friends came into the antechamber. He was grinning all over his face. He said, "You're not going to testify. You're not even going to be called."
Apparently one of the lawyers had made some kind of a mistake during the deposition that I had been subjected to, over a six-hour period, about six months earlier. The patent troll's lawyers had known about this and yet had insisted on me being called as a witness. But, at the last minute, had sprung on the court the existence of this error, and the fact that it prevented me from being called as a witness. Apparently, the judge was absolutely livid at the waste of time occasioned by this legal trick. It didn't actually make any difference in terms of the case: the case was decided against the patent troll. The patent troll, in taking this course of action, must have known that it would not lead to a determination in their favor, and only did it to make the process that much more costly, and time consuming, for the corporations involved.
As I say, I really hate patent trolls.
Previous: https://fibrecookery.blogspot.com/2024/12/mgg-550-hwyd-computer-forensics-gotcha.html
Introduction and ToC: https://fibrecookery.blogspot.com/2023/10/mgg-introduction.html
Next: https://fibrecookery.blogspot.com/2024/12/mgg-551-hwyd-community-policing.html
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