Source Code Review is a defining feature of many of the expert witness cases undertaken by Nigel Jones. Since the world is now run on software, this is hardly surprising. Mr. Jones has reviewed source code from industry giants such as Toyota, Qualcomm, Apple, and Samsung. The reviews have included low level assembly language, embedded code written in C and C++, website code written in PHP and Java Script, and business applications written in COBOL.
The amount of code reviewed on each case has varied from a thousand lines to well over a million.
Source code represents ‘ground truth’ and is usually pivotal in helping determine the outcome of cases. The owners of the source code are usually loath to allow anyone to look at it and have all sorts of objections to outside review. These typically encompass relevance and security. They also try to produce the code in non-native formats in an attempt to make source code review even harder, slower, and more expensive. Nigel Jones is adept at helping attorneys understand what source code review entails and how to prepare their discovery requests and to respond to the objections.
Once the source code has been produced, the detailed analysis can take place. Different cases have different requirements. For example, product liability cases are interested in whether the software contains any defects, while patent cases need to know what the software does and how it does it. Theft of trade secrets cases are interested in whether the source code contains copyrighted or trade secret material, while cases related to secure systems might be interested in knowing if the system contains security holes. Nigel Jones has tackled all of these issues and more.
Representative Cases
Point 4 Data Corporation et al v. Tri-State Surgical Supply & Equipment Ltd., et al
Plaintiffs Point 4 Corporation and Dynamic Concepts sued Tri-State Surgical for tens of millions of dollars, alleging that Tri-State had circumvented the copy protection of an accounting software package. Nigel Jones was retained by the defendants to help them understand and respond to the plaintiffs’ technical claims.
At the heart of the case was a security dongle that plaintiffs supplied with their software in order to impose license restrictions. The defendants had continual problems with the dongle malfunctioning, resulting in their accounting and order taking system being inaccessible. After a particularly long outage, Tri-State paid a third-party to modify the binary image of the underlying software such that the dongle was no longer operative. When the plaintiffs became aware of this modification, they sued under various statutes, including claiming statutory damages under the DMCA for every time a Tri-State employee logged on to the software.
After examining the dongle and the relevant software, Nigel Jones was able to show a number of key things, including:
- That the dongle was being operated outside its design envelope and thus random startup failures were to be expected, consistent with the defendants’ experience. Since the DMCA has a specific exclusion for malfunctioning dongles, this was a very important finding.
- That despite the dongle no longer being operative, Tri-State’s computer configuration was such that Tri-State was still abiding by the terms of the license agreement in terms of the number of users. This finding effectively eliminated the plaintiffs’ claims that Tri-State should be forced to pay for an unlimited user license.
- That the actual security used by the plaintiffs was obsolete and easily circumvented, thus undercutting the plaintiffs’ claims for damages necessary to re-engineer their security systems.
After a multi-year litigation, the trial court ultimately entered judgement in Tri-State’s favor. Tri-State is now seeking an award of fees incurred in defending themselves against this action.
Cell & Network Selection LLC v. AT&T et al.
Cell & Network Selection (CNS) filed patent infringement lawsuits against most of the giants of the LTE industry, alleging that the idle mode handover procedure used in LTE infringed upon US patent 6,195,551. Following an adverse Markman hearing, CNS turned to Nigel Jones to see if a case could still be made within the constraints imposed by the court’s claim construction.
After an extensive review of the relevant source code from Qualcomm, Mr. Jones submitted an 86-page report describing exactly how defendants were practicing idle mode handover. In particular, the report showed that despite defendants’ claim to the contrary, they were indeed performing a critical step in the alleged claims.
Shortly after depositions were completed, CNS entered into an agreement with RPX Corporation which effectively settled the litigation.
DISH Network v. NDS
Nigel Jones was a key expert witness for the victorious defendant in a case described by media as the largest corporate espionage case in U.S. history. Mr. Jones was retained by News Corporation’s NDS Group (now known as Cisco Videoscape) in a $1.6B piracy lawsuit brought by DISH Network (formerly EchoStar) in the U.S. District Court for the Central District of California. Mr. Jones analyzed the source code in the smart card at issue, and investigated the hacks that were promulgated on the Internet, allegedly by the defendant. He demonstrated to the jury both errors in the opposing experts’ analysis and also that the hack did not emanate from the defendant’s reverse engineering.
After a five-week trial and six hours of deliberations, jurors ruled in favor of NDS on most of the allegations. In denying many of the claims, the jury awarded actual damages of $45.69 (or statutory damages of $1,000), relating to a single incident involving a test card used by NDS. The Daily Journal called the victory one of the top 10 California defense verdicts of 2008.
The Ninth Circuit further awarded defendant NDS $18M in costs, stating in its decision that “There is no question that NDS successfully defended against all of EchoStar’s claims based on or related to its theory that NDS was responsible for the compromise of EchoStar’s satellite television programming security system.”
Subsequent to the Ninth Circuit’s decision, DISH Network retained Nigel Jones as an expert in a series of cases against vendors of Free to Air Satellite TV receivers.
Toyota
Following a string of well-publicized cases of unintended acceleration in Toyota vehicles, the NHTSA commissioned NASA to study the Electronic Throttle Control System (ETCSi). Following the publication of a heavily redacted report, U.S. Transportation Secretary Ray LaHood said, “We enlisted the best and brightest engineers to study Toyota’s electronics systems, and the verdict is in. There is no electronic-based cause for unintended high-speed acceleration in Toyotas.”
However, for anyone that actually read the NASA report it was clear that Secretary LaHood was grossly mischaracterizing what NASA’s engineers had found and reported on. Subsequently a class action lawsuit was certified against Toyota, and Nigel Jones was asked by the plaintiffs’ counsel to be part of the team studying Toyota’s ETCSi source code.
As explained by the plaintiffs’ lawyers in this video, notwithstanding the stringent conditions imposed on the review of the code, the plaintiffs’ experts were indeed able to find “deficiencies in the source code that were the basis of our contentions.” The principal deficiency and a multitude of other deficiencies were discovered by Nigel Jones. Following the issuance of his and other expert reports, Toyota elected to settle the class action lawsuit for approximately $1.2B–$1.6B. A related bellwether personal injury case (Shirlene Van Alfen, et. al. v. Toyota Motor Sales, U.S.A.) also settled under confidential terms.
The first case to go to trial in which the jury heard about the deficiencies Mr. Jones discovered in Toyota’s ETCSi was in Oklahoma. The jury found for the plaintiff and determined that Toyota acted with “reckless disregard.” Before the jury could rule on punitive damages, Toyota settled the case and shortly thereafter announced that they would enter into intensive settlement negotiations to resolve the hundreds of other outstanding unintended acceleration cases.
WNET v. Aereo
Aereo was a startup company that attempted to exploit the Second Circuit’s Cablevision decision regarding copyright infringement. Aero used a massive array of individual antennas to broadcast content over the internet to paying subscribers. As such Aereo represented a significant threat to the business model of the major broadcasters. The threat was seen as so severe that News Corp threatened to take Fox off the air if Aereo was permitted to continue operation. With so much at stake, Fox turned to Nigel Jones to gain a complete understanding of Aereo’s technology—including how it worked, its limitations, and its performance.
Following a court order, Mr. Jones was provided with an exemplar of Aereo’s antenna board and source code. He proceeded to thoroughly analyze the system and quickly created a test environment to allow accurate performance measurements to be taken. Together with the plaintiffs’ antenna expert, Nigel Jones spent two days at an anechoic chamber evaluating the performance of Aereo’s antenna technology, followed by multiple site visits where in situ testing was performed. This test data was at the heart of the plaintiff’s technical case against Aereo. Before the technical arguments could be heard, the case was decided by the U.S. Supreme Court who, in a very closely watched 6-3 decision, ruled that Aereo was publicly performing the plaintiffs’ copyrighted works. Aereo ceased operations shortly afterwards and settled all remaining claims.
Cellular Communications Equipment, LLC v. Apple
CCE sued Apple for patent infringement in 2014, alleging that Apple was infringing various patents related to mobile telecommunications. The case went to trial in September 2016 in the Eastern District of Texas. Nigel Jones testified for CCE and was charged with explaining to the jury the underlying technology and also how Apple’s source code performed the key features at issue in the case. Ultimately Apple’s non-infringement defense centered on the proper way to interpret a mere two lines of code. The jury returned a running royalty verdict of $22.1m through March 2016 indicating that they agreed with Mr. Jones’s view of the code and disagreed with Apple’s position.
