Werber's claim about the nature of the system in general
- The expert expressed his opinion that this was a system that was built without any standard and at a very low level of professionalism, and that its developers did not act professionally in basic matters that are key to the development of software in a reliable and successful manner (paragraphs 12.2 and 12.1 of the opinion). With regard to various functions, the expert also referred to the fact that they were developed of low quality (Sections 2.5, 7.3, 10.10-10.5). However, the expert clarified in response to the clarification questions that he did not examine all the elements in the system, but rather focused on the claims raised in the table submitted by the parties, and that other elements were examined regarding the nature of the system as detailed in the opinion (p. 5 in response to the clarification questions).
- This included the expert pointing out that the system was built without code versioning (a function similar to "track changes" in a document), which is essential to enable recovery in the event of a malfunction, who made the change and why; as an aid to future development (section 12.4). It was noted that this is the standard today for any professional development. The expert also pointed out that the system was developed without development version management that allows monitoring of the entire system and a description of changes in the version, which is essential in order to share among developers, administrators, and interested parties the changes made to the system and their date (section 12.5).
I will note that there is no reason to prefer Shmulik's explanations that it was not required over the expert opinion on behalf of the court. Shmulik's testimony is the only testimony of a litigant, and there is no justification for its preference over the expert opinion, which left a very professional impression (p. 180 of the transcript at 4-5; p. 238 of the transcript at paras. 1-6). In fact, the probable conclusion from the evidence is that Shmulik worked with version management (GIT) at one point, contrary to his testimony, but tried to conceal it. In the cross-examination, Shmulik initially testified that he did not work with version management, and when he asked to refer to the correspondence dated May 30, 2018 in which he writes that he is defining GIT for the programmer (P/3, p. 13, message from 15:37), he replied that "it is not necessary" and that he does not remember, "but it may not have been used because we did not define it, it was not needed in the end" (p. 180, s. 8, 15-16). This answer does not satisfy a number of reasons. First, no explanation was given as to why Shmulik handled the definition of Git according to the correspondence and why, although he handled the definition, it was not used as he testified. Second, this is the only testimony of a litigant who did not leave a positive impression on his testimony. Third, the defendants refrained from summoning the programmer Michal, who is a key witness, to testify. Fourth, the conduct of the defendants, who prior to the proceeding, denied the plaintiffs access to the system, and also in the proceeding itself, tried to prevent them from accessing the system for the purpose of examining it, even though the business activity was negligible at the time, as appears from the expert opinion (p. 24), supports the conclusion of concealment (in view of the low quality and the problems as arises from the expert's opinion).
- The expert also believed that there was confusion and unreliability in the system because in the "product environment" of the software (the one that was actually used), trial and error were carried out, no remnants of experiments were cleaned and experimental data mixed with real data. The expert explained that in proper development, trial and error are done in a separate development environment, with only the final code and real data being transferred to the "product environment" in order for this environment to be reliable and free of problems. The expert further explained that even if there was a development environment (evidence of which it existed but was deleted by a storage company), this does not change his conclusion because work was done in the product environment that should have been done in a development environment (section 12.6 in conjunction with p. 21 to answer the clarification questions).
- The expert also pointed out that the system was built without automated tests, which are an accepted professional standard for systems with complex logic, in order to ensure that the core of the system works as required (Section 12.7). The expert on behalf of the defendants testified that automated testing in the WordPress environment is not common (p. 69 of the transcript at paras. 20-29), but the opinion of the court's expert should be preferred. The court's expert made a very serious and professional impression, as stated, and by virtue of being an expert on behalf of the court, significant weight should be attributed to his opinion. On the other hand, the defendants' expert justified his opinion regarding the quality of the system on hard grounds, to say the least, as explained by the court's expert. Thus, for example, the expert on behalf of the defendants can learn about the complexity and quality of the system from the scope of the lines of code that were written, where most of the code was taken from generic plugins developed by third parties. He also claimed user satisfaction as evidence of quality, but it turned out that the alleged satisfaction was based on selective data and misrepresentation of them, when in fact the activity in the system was marginal after a year (pp. 24-25 of the expert opinion; p. 20 in response to the clarification questions; p. 72 of the transcript at paras. 10-12). This is likely to impair the weight of the testimony and the expert opinion on behalf of the defendants.
- The expert also explained that it is common to rely on an open-source system that includes free components, when the ready-made component is exactly suited to the needs or when the developers know how to make adjustments to the component professionally. The expert notes that the main components did not exactly fit the needs and the adjustment was not done professionally, and noted as an example the aforementioned problem that he identified, which allows you to watch the courses free of charge.
- The expert also believed that the system was not professionally maintained. The expert explained that in an open source system, hackers have an incentive to find security weaknesses, and in order to protect the system from this, it is necessary to perform additional maintenance of the ready-made plugins installed in it and purchase a license code in order to receive bug fixes and security updates from the developers of the plugins. The expert found, however, that key components operate without a license that allows receiving updates from such developers, and that the solution for receiving updates through software called nobuna.com raises difficulties because it is an indirect third-party solution (and not directly from the official manufacturer of the plugin) and therefore puts the site at risk (p. 23 of the opinion, pp. 8-9 and 22 in response to the clarification questions).
- In the conclusion of the opinion, the expert expresses his opinion that the existing features in the system do not work reliably; The system was built in an unprofessional manner and of low quality (there are faults and weaknesses in reliability, privacy and security), and that it was built without an orderly development process. His final conclusion was that this was "a non-standard system with impaired functionality."
- I will note that to the court's question, if the expert had been asked to examine the system and arrange what was required, what would have been the significance in terms of cost and time resources, the expert replied, "I would not have taken the time to sort out the existing one. It is better to rewrite" and later on "It's an atomic mess" - not because of the difficulty in having someone else write the code, but "after checking that I saw the problems" (p. 90 of the transcript at paras. 11-18), when in response to the defendants' counsel's question he clarified that it was "the client's economic consideration how much it is worth for him to invest" in repairs and considering the cost of rebuilding the system, which will not happen: on the order of ILS 50 to 100 thousand (where ILS 100,000 is the price for excellent work) (p. 90 of the transcript, pp. 73-74).
- It should be noted that the expert's findings regarding the low quality of the system's development are supported by Alexandra's real-time correspondence with one of the freelancers who worked on the code, a programmer from India (named Subash Poudel), in which he writes that he sees that the site was built without thinking about speed, code quality, and incompatibility of plugins (Appendix 34 at p. 485 for Werber's evidence):
I can see the site was built without speed, code quality and plugins/theme incompatibility in mind.