1
1
2 UNITED STATES DISTRICT COURT
3 SOUTHERN DISTRICT OF NEW YORK
4
UNIVERSAL CITY STUDIOS, INC.; )
5 PARAMOUNT PICTURES CORPORATION; )
METRO-GOLDWYN-MAYER, INC.; TRISTAR )
6 PICTURES, INC.; COLUMBIA PICTURES )
INDUSTRIES, INC.; TIME WARNER )
7 ENTERTAINMENT CO., L.P.; DISNEY )
EMTERPRISES, INC.; AND TWENTIETH )
8 CENTURY FOX FILM CORPORATON, )
)
9 )
PlaintiffS, )00 Civ. 277
10 )(LAK)(RLE)
vs. )
11 )
SHAWN C. REIMERDES; ERIC CORLEY )
12 A/K/A "EMMANUEL GOLDSTEIN"; )
ROMAN KAZAN; AND 2600 )
13 ENTERPRISES, INC. )
)
14 Defendant. )
------------------------------------)
15
16
17 DEPOSITION OF EMMANUEL GOLDSTEIN
18 New York, New York
19 Tuesday, June 27, 2000
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24 Reported by:
Thomas R. Nichols, RPR
25 JOB NO. 110287
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6 June 27, 2000
7 10:20 a.m.
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9 Deposition of EMMANUEL GOLDSTEIN,
10 held at the offices of Proskauer Rose LLP,
11 1585 Broadway, New York, New York, pursuant
12 to Notice, before Thomas R. Nichols, a
13 Registered Professional Reporter and a
14 Notary Public of the State of New York.
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2 A P P E A R A N C E S:
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4 PROSKAUER ROSE LLP
5 Attorneys for Plaintiffs
6 1585 Broadway
7 New York, New York 10036-8299
8 BY: LEON GOLD, ESQ.
9 CARLA M. MILLER, ESQ.
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11
12 FRANKFURT GARBUS KLEIN & SELZ, PC
13 Attorneys for Defendants
14 488 Madison Avenue
15 New York, New York 10022
16 BY: MARTIN GARBUS, ESQ.
17 EDWARD HERNSTADT, ESQ.
18
19 ALSO PRESENT:
20 MARK D. LITVACK, ESQ.
21 JESSICA FREIHEIT
22 RUBEN MARTINEZ, THE VIDEOGRAPHER
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1 Proceedings
2 THE VIDEOGRAPHER: This is tape
3 number one of the videotape deposition of
4 Mr. Emmanuel Goldstein in the matter
5 Universal City Studios, Inc. et al.,
6 plaintiffs, versus Shawn C. Reimerdes, et
7 al., defendants, in the United States
8 District Court, Southern District of
9 New York, Number 00 Civ 277(LAK)(RLE).
10 This deposition is being held at 1585
11 Broadway on June 27, 2000, at approximately
12 10:20 a.m. My name is Ruben Martinez from
13 the firm of Esquire Video Services. The
14 court reporter is Mr. Tom Nichols in
15 association with Esquire Deposition
16 Services.
17 Will the counsels please introduce
18 themselves.
19 MR. GOLD: My name is Leon Gold. I am
20 with Proskauer Rose, counsel to the
21 plaintiffs.
22 MS. MILLER: Carla Miller with
23 Proskauer Rose, counsel to all plaintiffs.
24 MR. LITVACK: Mark Litvack with the
25 Motion Picture Association of America,
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2 counsel for plaintiffs.
3 MS. FREIHEIT: Jessica Freiheit,
4 summer associate, Proskauer Rose.
5 MR. GARBUS: Martin Garbus, Frankfurt
6 Garbus, one of the attorneys for the
7 defendant.
8 MR. HERNSTADT: And Edward Hernstadt
9 of Frankfurt Garbus.
10 THE VIDEOGRAPHER: Will the court
11 reporter please swear in the witness.
12 MR. GARBUS: Just let me note that the
13 caption you read is incorrect. It should be
14 changed, that two of the people you
15 mentioned are no longer part of the case,
16 but we will give you a correct caption
17 before you type this up.
18 (Witness sworn.)
19 MR. GOLD: Actually, Martin, I don't
20 think the caption has ever been officially
21 changed.
22 MR. GARBUS: It has been.
23 MR. GOLD: Did you file something?
24 MR. GARBUS: Yes.
25 MR. HERNSTADT: We didn't file
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2 anything, but Miss Reyes, the judge's law
3 clerk, asks, every time we go to court she
4 asks, What's going on? Aren't these people
5 out of the case? And she said she was going
6 to talk to the Clerk about getting it
7 changed.
8 MR. GOLD: Thus it isn't changed.
9 MR. HERNSTADT: I think it's been
10 done, but I don't know for sure.
11 MS. MILLER: Because our understanding
12 procedurally was that the defendant that had
13 settled out had to make a motion to change
14 the caption to remove their names. But
15 we'll figure that out.
16 MR. HERNSTADT: We'll figure that out.
17 I hope that the judge's deputy can take care
18 of it.
19 MS. MILLER: Perhaps.
20 (Continued on next page.)
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2 E M M A N U E L G O L D S T E I N , called as a
3 witness, having been duly sworn by a Notary
4 Public, was examined and testified as
5 follows:
6 EXAMINATION BY
7 MR. GOLD:
8 Q. Mr. Goldstein, do you understand that
9 people who create artistic work are entitled to
10 copyright protection?
11 A. Absolutely.
12 MR. GARBUS: I object to the question.
13 Direct the witness not to answer.
14 MR. GOLD: On what ground?
15 MR. GARBUS: I think he is being
16 examined as a fact witness.
17 MR. GOLD: I asked him what
18 understanding he has.
19 MR. GARBUS: I object to the question.
20 I will allow the witness to answer.
21 Q. What rights do you understand copyright
22 holders have?
23 MR. GARBUS: Object to the question.
24 THE WITNESS: Can I answer anyway?
25 OK.
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2 A. Basically if you create something,
3 you're entitled to benefit from it. No problem
4 with that.
5 Q. Do you understand that copyright holders
6 do have a right to decide who can see or use their
7 work?
8 A. That's not my understanding of how
9 copyright works.
10 Q. What is your understanding of how a
11 copyright works?
12 MR. GARBUS: I think I will object to
13 this and I will direct the witness not to
14 answer. The witness is not a lawyer. The
15 same objections were made when Mr. Valenti
16 was being examined and he was directed not
17 to answer a question. I direct the witness
18 not to answer.
19 Q. Do you understand that people who have
20 copyrights have the right to maximize their return
21 from the copyright?
22 A. Yes.
23 Q. What does that mean to you, maximize the
24 return on their copyrighted work?
25 A. It means they are entitled to benefit
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2 however much the market dictates they will benefit
3 from the selling of their work.
4 Q. Do you understand that the motion
5 picture companies who have copyrights on their
6 movies have that right?
7 A. Yes.
8 Q. Do copyright holders have the right to
9 decide as you understand it who will see their
10 work?
11 MR. GARBUS: I object to the question.
12 A. I don't see how that's possible.
13 Q. Do copyright holders have the right --
14 for instance, if the copyright holder is a
15 novelist, do you understand that he would have the
16 right to decide who can sell his books to the
17 public?
18 MR. GARBUS: I object to it.
19 Mr. Goldstein's version of the copyright law
20 is not at issue. What is at issue is what
21 he did. And to suggest that because he has
22 one set of beliefs rather than another set
23 of beliefs, something that is lawful and
24 appropriate is somehow unlawful and
25 appropriate, because any view he had it
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2 seems to me is improper.
3 It seems to me what you're doing is
4 you're asking questions for the benefit of
5 the viewing audience and that the judge
6 would not permit at trial the kinds of
7 questions you are now asking.
8 MR. GOLD: You can answer the question.
9 THE WITNESS: I forgot the question.
10 MR. GOLD: Can you read it back.
11 (A portion of the record was read.)
12 A. Yes.
13 Q. Do you understand that copyright holders
14 have the right to protect their work against people
15 who would use it without permission?
16 A. Absolutely.
17 Q. Do you believe that anyone is entitled
18 to assist others in using or taking the copyright
19 work without permission?
20 MR. GARBUS: I object to the form of
21 the question. I would wait for a direction
22 from the judge before the witness is
23 required to answer that.
24 MR. GOLD: You're directing witness
25 not to answer that question?
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2 MR. GARBUS: No, I will allow the
3 witness to answer.
4 MR. GOLD: Thank you.
5 MR. GARBUS: I would like to speak to
6 the witness for five minutes at this point
7 before we go on with the deposition.
8 MR. GOLD: First of all, do you want
9 to answer the pending question?
10 Would you read the question back to
11 the witness.
12 (A portion of the record was read.)
13 A. I think that depends on the definition
14 of the word "assist." If you're explaining how
15 technology works, then absolutely you're allowed to
16 describe that, to explain that.
17 If you're talking about leading somebody
18 by the hand to make an illegal copy of something,
19 then no, absolutely not.
20 MR. GARBUS: Can we take that
21 five-minute break?
22 MR. GOLD: Well, I object to that,
23 Mr. Garbus, because I think based on what we
24 have done so far, and since we only started
25 about seven minutes ago, that there can't be
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2 any reason for a break other than to
3 instruct your witness on how to deal with
4 certain questions along the lines I am
5 asking. So I am going to take that position
6 with the judge. I think it's improper.
7 MR. GARBUS: OK. We had as a courtesy
8 throughout these depositions, irrespective
9 of when it occurred, always allowed -- and
10 this happened repeatedly with your witness,
11 any time a lawyer defending a case said I
12 would like to speak to a witness, even when
13 a question was posed, we had extended that
14 courtesy to each other. Basically we
15 extended it to you because these were your
16 witnesses being examined. I would just
17 expect that we would get the same courtesy
18 here.
19 MR. GOLD: Yes, but we didn't take a
20 break five minutes after the deposition
21 started.
22 MR. GARBUS: Yes, we did. We did the
23 exact same thing as previously.
24 MR. GOLD: In what depositions?
25 MR. GARBUS: I don't have all the
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2 depositions in front of me. My memory is
3 we did it with Schulman.
4 Q. What is your understanding of the
5 meaning of the word "assist"?
6 MR. GARBUS: I would object to the
7 form. This witness is not a lawyer. He is
8 not being deposed as a lawyer. He is a
9 journalist who printed information, and I
10 think to ask him his definition of "assist"
11 is improper except to the extent that he had
12 conversations with his lawyer, and with his
13 lawyer he had discussions of that word, and
14 to that extent I would claim the privilege
15 with respect to it.
16 Do you have any independent knowledge
17 of what that word means other than the
18 conversations you've had with me or with
19 Mr. Hernstadt? And if it is based on
20 conversations you've had with me and
21 Mr. Hernstadt, then just it's based on
22 conversations with your lawyer, and then
23 it's privileged.
24 THE WITNESS: Uh-huh.
25 A. We did discuss that, so I would have to
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2 say it's privileged.
3 Q. Do you ever use the word "assist" in
4 your writing?
5 A. I may have on occasion.
6 Q. What does it mean when you use it?
7 A. To help, but it's a very general type of
8 a word.
9 Q. Just tell me what it means to you.
10 A. To help, to aid.
11 Q. To help or aid?
12 A. Yes.
13 Q. Using that definition of the word
14 "assist," do you understand that anyone is entitled
15 to assist others in taking or using a copyright
16 work without permission?
17 MR. GARBUS: I will object to it. To
18 the extent of your knowledge of copyright
19 law or the word "assist" comes from
20 conversations with me or your attorneys,
21 then just say it. And to the extent that
22 these discussions were held in the context
23 of preparation for this case, it is
24 privileged.
25 A. Again, that's something that we
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2 discussed. Whether it's a synonym of the word
3 "assist," it's still something we discussed.
4 Q. When did that discussion take place?
5 Just the date.
6 A. Before we came over here.
7 Q. Today.
8 A. Yes.
9 Q. And you spent about an hour?
10 A. Not on the word "assist."
11 Q. With Mr. Garbus?
12 A. But, yeah, on various things, yes.
13 Q. Had you met with him before for the
14 purpose of preparing for your deposition?
15 A. Once, yes.
16 Q. When was that?
17 A. Yesterday.
18 Q. When was it you talked about whether
19 anyone is entitled to assist others in taking
20 someone's copyrighted work without permission?
21 MR. GARBUS: I will object to the
22 question as privileged.
23 Q. Today or yesterday?
24 MR. GARBUS: I will object to the
25 question as privileged. When he spoke to
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2 his lawyer about it is privileged.
3 THE WITNESS: Should I answer?
4 MR. GARBUS: Yes.
5 A. Today.
6 Q. Did you have any understanding prior to
7 yesterday of whether anyone was entitled to assist
8 others in using a copyrighted work without
9 permission?
10 MR. GARBUS: I will object to it
11 except to the extent that you had some
12 awareness of whether linking was permitted
13 or not permitted and where you got that
14 understanding.
15 Q. I am not interested in your definition
16 of the word "linking" or posting in this question.
17 What I am asking you is before you
18 talked to your lawyers about the subject, your
19 present lawyers about the subject, did you have any
20 understanding before that of whether anyone was
21 entitled to assist others in taking a copyrighted
22 work without permission?
23 MR. GARBUS: I object to it. That
24 specifically -- object to form. That
25 specifically relates to the question of
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2 linking. So if he had some knowledge of
3 whether linking was permissible or not
4 permissible, the question is did he have any
5 discussions about linking or did he have any
6 knowledge either from the previous court's
7 decision or now about linking, which is what
8 assisting is.
9 MR. GOLD: Can you read the question
10 back to the witness, and then I am going to
11 ask you to answer that, sir.
12 (A portion of the record was read.)
13 A. I had an opinion. Yes.
14 Q. What was your opinion?
15 A. That any kind of copyright infringement
16 is wrong. Helping someone obviously to infringe
17 upon copyright would be wrong too.
18 Q. Prior to yesterday did you have any
19 understanding of whether anyone was entitled to
20 break through a protective device which protects
21 digital copyrighted work in order to take that work
22 without permission?
23 MR. GARBUS: Objection unless you're
24 also including the term "fair use." It's
25 misleading unless you put that qualifier in
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2 the sentence.
3 MR. GOLD: Do you remember the
4 question, Mr. Goldstein?
5 THE WITNESS: I'd appreciate having it
6 read back.
7 (A portion of the record was read.)
8 A. Yes.
9 Q. What was your understanding?
10 A. That that kind of thing was wrong. That
11 taking something without permission is wrong.
12 Q. Is there a time in 1999 when you were
13 posting DeCSS?
14 A. In 1999 as of late November we mirrored
15 the site on our web site.
16 Q. Did 2600 ever post DeCSS?
17 A. That's what mirroring is, yes.
18 Q. For what purpose?
19 A. At the time it had only just happened a
20 couple of weeks earlier. We had noted the events
21 as someone had figured out the encryption standard
22 being used by DVDs and had found it to be rather
23 badly written.
24 When we saw that those people were being
25 intimidated and forced to shut down their web
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2 sites, as journalists we stood up and said this is
3 wrong. And then we were listed then in all future
4 court records.
5 Q. You only mirrored DeCSS after this suit
6 was started?
7 A. No, we mirrored DeCSS after we became
8 aware that people around the world were being
9 threatened because they were showing people how the
10 encryption worked.
11 Q. What was the purpose of the mirror?
12 A. As journalists we have a very firm sense
13 of freedom of information, and we believe people
14 have the right to know how things work. As a
15 publisher of a magazine that deals with such
16 issues, I feel strongly that we all have both the
17 desire and the right to know how things around us
18 operate. And I don't see that as related in any
19 way to theft of those services.
20 Q. When you mirrored or posted DeCSS on
21 2600, how did you make sure that people who simply
22 wanted to see movies that were copyrighted without
23 buying them would not use DeCSS?
24 A. Well, there's two answers to that.
25 First of all, when you tell someone how something
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2 works, when you give information out, people can
3 always use information in a good or a bad way.
4 That's just the nature of information.
5 The second part of that is that, what
6 was posted, DeCSS, has got nothing to do with
7 illegal copies. And I think that's been proven
8 time and again. I don't think a single case of
9 copyright violation has been traced to DeCSS.
10 Copies of DVDs have been made.
11 We had in fact reported two years
12 earlier on November 25, 1997, on one of our radio
13 shows that illegal copies of DVDs were being made
14 in what is known as bit by bit transfer using a
15 program called SoftDVD. And what the DeCSS code
16 showed instead was that the encryption was weak,
17 and that encryption was more about control of the
18 playing back as to where you played it back and how
19 you played it back, not making copies.
20 Q. Did you understand at the time you
21 posted DeCSS that most people who owned computers
22 would not understand how DeCSS works even if they
23 downloaded DeCSS?
24 A. Most people I know who have computers
25 would understand it.
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2 Q. But you know far fewer than 50 percent
3 of the people in the United States that have
4 computers?
5 A. Absolutely, yes.
6 Q. You know far fewer than 2 percent of the
7 people who own computers.
8 MR. GARBUS: We would agree it is
9 one-tenth of one million.
10 A. I don't know that many people.
11 Q. Did you believe it was appropriate to
12 post DeCSS even though ten people, and only ten
13 people, might use that, might download it for the
14 purpose of finding out how it works?
15 MR. GARBUS: I will object to the form
16 of the question. There's been no proof that
17 ten people have used it. I object to the
18 form of the question, about whether he knew
19 or understood.
20 A. I would have to say that if I applied
21 that logic to everything I wrote, I wouldn't be
22 writing anything. Because someone can always take
23 what I've written and use it in a bad way and then
24 I would be up nights worrying about, you know, what
25 they did wrong. I don't think anyone has ever used
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2 DeCSS to pirate a film.
3 Q. Do I take it that you agree that you had
4 the right or you believe you had the right to post
5 DeCSS even though far less than one percent of the
6 people who would download it would have any
7 interest in how CSS or DeCSS works?
8 MR. GARBUS: I object to the form of
9 the question.
10 A. I am not sure it is possible to say how
11 many people who downloaded it understand it. I
12 don't think a significant portion of the American
13 public downloaded it.
14 I do think the people who went to the
15 web site read the text that surrounded it and
16 hopefully learned something from the text, and if
17 they were interested in pursuing it further,
18 learning more about the technology, then they had
19 to look at the program as well.
20 Q. Was there anything wrong in your
21 printing the text that accompanied the letters
22 DeCSS?
23 A. I'm not sure I understand your question.
24 MR. GARBUS: Objection to form.
25 Q. You had an absolute right, didn't you,
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2 in saying whatever you said on your web site except
3 for DeCSS? Isn't that right?
4 MR. GARBUS: Objection to the form of
5 the question. He can't refer to the term
6 "DeCSS" on his Web site? Is that the
7 question?
8 MR. GOLD: You can answer.
9 THE WITNESS: Can you just repeat that
10 back?
11 MR. GARBUS: I didn't understand the
12 question.
13 (A portion of the record was read.)
14 A. I had the right to say what I said on
15 the web site, and I believe that extends to posting
16 the code as well.
17 Q. Do you or any corporation you're
18 affiliated with have a copyright, own a copyright?
19 A. Yes, our words are copywritten in our
20 magazine.
21 Q. Who caused them to be copywritten?
22 A. I did.
23 Q. Why?
24 A. It's standard to have a copyright to
25 protect your interest. Someone could take 2600 and
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2 just simply reproduce it if we had no copyright.
3 Q. What interests were you protecting?
4 A. Well, our interests obviously. We have
5 words that we write and we don't want somebody else
6 just taking them. But by the same token, we have
7 no problem with people spreading our information
8 around. Because we write it for the purpose of
9 being read. But we do hold the copyright.
10 Q. I think I am confused. I don't
11 understand why you have the copyright if you say
12 that you don't care who uses your material.
13 A. Well, there's different standards of
14 use. If someone were to take our magazine and
15 simply duplicate it, well, that's obviously very
16 bad. If somebody were to, say, quote something
17 from one of our articles, we have no problem with
18 that. We consider that fair use.
19 Q. In other words, if they had quoted
20 something, but not the whole thing, you consider
21 that OK.
22 A. Right.
23 Q. And when you got the copyright, one of
24 the purposes would protect anyone from taking the
25 whole thing.
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2 A. Yes.
3 Q. Is it your understanding that the
4 current court injunction against your posting DeCSS
5 violates your right?
6 MR. GARBUS: I will object to it.
7 A. I wouldn't say it violates my rights. I
8 say that it's open to contention whether it's right
9 or not, but obviously we're following the
10 injunction so we respect it.
11 Q. Do you believe that the current court
12 injunction violates rights that you have --
13 MR. GARBUS: I object.
14 Q. -- in any way, shape or form?
15 MR. GARBUS: Object to the form of the
16 question.
17 Q. Or do you believe the current court
18 injunction is perfect proper and appropriate? And
19 I am asking for your beliefs.
20 MR. GARBUS: I object to the form of
21 the question. If you can't exclude anything
22 from any privileged communications you had,
23 any conversations with counsel telling you
24 what your rights are, so to the extent it
25 comes out of conversations with counsel,
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2 just say that and I will claim the
3 privilege.
4 A. I respect the injunction.
5 Q. Excuse me?
6 A. I respect the injunction. I don't
7 believe the injunction is violating my rights per
8 se. I think it's a fight that we're engaged in.
9 And obviously the injunction was filed against us.
10 We respect that and we followed it. So....
11 Q. Do you understand that the injunction
12 prohibits you and 2600 from posting DeCSS?
13 A. And we have done just that.
14 Q. Do you think it's appropriate and right
15 that the court did that?
16 MR. GARBUS: I object to it to the
17 extent that what the judge did is right or
18 wrong comes out of conversations you had
19 with counsel.
20 MR. GOLD: Oh, my gosh. Martin, I
21 object to what you're doing.
22 A. I see a difference between what the
23 judge said and what the people behind the case are
24 saying. Obviously I don't believe the people
25 behind the case are right. I don't think the judge
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2 acted improperly. I think the judge is doing what
3 judges do, and I have every faith in that.
4 Q. What do judges do?
5 A. Judges make decisions based on the
6 evidence given to them, and it's my hope that we'll
7 present evidence to prove that we're right in the
8 end.
9 MR. GARBUS: Leon, as you know,
10 there's a motion to vacate the injunction.
11 Q. I take it you don't believe that the
12 injunction is inappropriate.
13 A. The injunction in itself.
14 MR. GARBUS: I object to the form of
15 the question.
16 Q. Do you think you have a right to post
17 DeCSS?
18 A. Yes, I do.
19 Q. Why?
20 A. I consider it --
21 MR. GARBUS: I object to the form of
22 the question.
23 A. I consider it a form of speech. I
24 consider it a form of basically writing about
25 technology showing how things work, and I think it
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2 is a very -- it is a chilling effect if you start
3 punishing people for showing how something works.
4 It is one step away from punishing someone from
5 talking about it. And I think as journalists we
6 need to stand up to that.
7 MR. GOLD: I would like to have this
8 marked as Plaintiffs' Exhibit 1.
9 (Plaintiffs' Exhibit 1, piece of paper
10 with the letters DeCSS written on it, marked
11 for identification, as of this date.)
12 Q. I am going show you Exhibit 1,
13 Mr. Goldstein. Give you a chance to look at it.
14 It won't take very long.
15 A. OK.
16 Q. What does that mean to you?
17 A. It means you have written DeCSS on a
18 piece of paper.
19 Q. But what does it mean?
20 MR. GARBUS: Object to the form of the
21 question.
22 A. What does it mean?
23 Q. Yes.
24 A. It's -- it doesn't really mean a whole
25 lot to me to be honest. You have written something
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2 on a piece of paper. But this is not the same
3 thing as DeCSS code.
4 MR. GARBUS: I object to the form of
5 the question.
6 Q. You say that is not the DeCSS code; is
7 that right?
8 A. Five letters on a piece of paper? No,
9 sir, it's not.
10 Q. Is that a word?
11 MR. GARBUS: I object to the form of
12 the question.
13 Q. DeCSS.
14 MR. GARBUS: I object to the form of
15 the question. I direct the witness not to
16 answer. DeCSS speaks for itself. You have
17 written five letters on a piece of paper.
18 MR. GOLD: You're going to direct the
19 witness not to answer? On what ground?
20 MR. GARBUS: Can you tell me where
21 you're doing with this deposition?
22 MR. GOLD: No.
23 MR. GARBUS: It is now close to 11
24 o'clock. It seems to me what you have done
25 in the last half hour is ask questions that
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2 have limited relevancy, if any, to this
3 lawsuit, his understanding of the law.
4 MR. GOLD: I'm sorry.
5 MR. GARBUS: And I appreciate it --
6 don't apologize until I'm through. I
7 appreciate it if you get to the questions
8 that I perceive to be at issue in this
9 lawsuit.
10 I mean, I think it is very cute to
11 write DeCSS on a piece of paper and I
12 presume you can examine him for half an hour
13 on it, but it has nothing to do with the
14 issues in this lawsuit. What his
15 understanding is of five letters you have
16 written on a blank piece of paper --
17 MR. GOLD: I think an objection is OK,
18 but you're filibustering.
19 MR. GARBUS: Can I finish?
20 MR. GOLD: No. I think you're
21 filibustering. That's not an objection.
22 That's improper.
23 Q. Now you can answer the question. Is
24 that a word, DeCSS?
25 A. Not in the English language. It's five
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2 letters. It stands for something.
3 Q. And I take it it has no meaning to you.
4 A. It in that form? Well, it has meaning
5 in that it represents something. It represents
6 what we're talking about today. Other than that, I
7 am not sure if that's the way you're presenting it.
8 Q. Thank you. Do you believe that when you
9 were posting DeCSS you were engaged in an act of
10 civil disobedience?
11 MR. GARBUS: Objection. He has
12 already testified he was the media and was
13 presenting as part of a story.
14 A. When we first posted it we posted it
15 as journalists talking about a news story.
16 Q. How was the posting accomplished?
17 A. The posting of the actual DeCSS or the
18 article surrounding it?
19 Q. The posting of DeCSS. What you call the
20 actual DeCSS.
21 A. I wasn't the person who actually copied
22 it, but I imagine it was taken from one of the
23 sites that had it up on the Net. We verified what
24 was in it and put it up on our site.
25 Q. By whom? Who did that?
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1 Goldstein
2 A. Probably our webmaster.
3 Q. And who's that?
4 A. His on-line name is Macki.
5 Q. And his real name?
6 A. I know his first name. His first name
7 is Mike. Last name begins with the letter S.
8 That's really all I know. I know how to E-mail. I
9 know how to get ahold of him, but I don't know his
10 full last name.
11 Q. He is not employed by you?
12 A. No.
13 Q. Did you ask him to post DeCSS on your
14 site?
15 A. We talked about it and agreed that that
16 was the appropriate thing to do.
17 Q. So you did ask him to do it?
18 A. We conferred. We agreed together. I
19 didn't direct him to do this.
20 Q. Does he have any ownership of your
21 stock?
22 A. Not as such. I mean, he has a say in
23 the kinds of things that go on there.
24 Q. Do you have an ownership of your stock?
25 A. Yes.
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2 Q. You own stock in the company that
3 controls your stock?
4 A. It's a private corporation, yes.
5 Q. Did you approve of what he did posting
6 the CSS on your site?
7 A. DeCSS.
8 Q. DeCSS on your site.
9 A. Yes.
10 Q. In the past six months have you been
11 engaged in any kind of reverse engineering of
12 anything?
13 A. I am a journalist. I am not an
14 engineer.
15 Q. So the answer is no?
16 A. The answer is no.
17 Q. In the last six months have you been
18 engaged in any cryptographical research?
19 A. No.
20 Q. Prior to the court proceedings did you
21 talk to any people about DeCSS who were in fact
22 engaged or planning to engage in reverse
23 engineering?
24 A. Not with my knowledge. I talked to a
25 lot of people on the Internet. People message back
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2 and forth and some might be very knowledgeable in
3 certain fields. So it's very hard for me to say
4 whether or not I was talking to somebody who was
5 doing something like that.
6 Q. Since the commencement of this lawsuit
7 have you talked to any people who are using DeCSS
8 for the purpose of reverse engineering?
9 A. To be honest, I have never found anybody
10 who has successfully gotten DeCSS to work.
11 Q. So the answer to my question is no?
12 A. No.
13 Q. You haven't talked to any people.
14 And where did you get the understanding
15 that people can't get DeCSS to work?
16 A. I've gotten messages, again on the
17 Internet. I remember back towards the later part
18 of last year seeing messages from people who are
19 trying to figure it out and it was too complex for
20 them.
21 I imagine there are some people who have
22 gotten it to work and have been able to use DVDs on
23 their Linux machines, which is the purpose of it.
24 But myself, I have not talked to anybody personally
25 who has done that.
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2 Q. To your knowledge, has anyone in the
3 world currently engaged in reverse engineering
4 DeCSS or CSS?
5 A. Which?
6 Q. CSS.
7 A. I think it's already been done. I think
8 CSS has pretty much been shown to be not very
9 secure encryptionwise.
10 Q. Do you know of any cryptographical
11 research with respect to DeCSS that's been done
12 anywhere in the world?
13 A. Not specifically, no.
14 Q. How did you come to the understanding
15 that the purpose of DeCSS was to view movies on a
16 Linux machine?
17 A. There's been quite a lot of discussion
18 in various forums and at conferences and various
19 places like that by people who are extremely
20 knowledgeable in the field, from the founders of
21 Linux to its users, and it became very clear very
22 quickly that this program was simply made so that
23 they would have a way of viewing DVDs as well,
24 since they were not granted a license to have a DVD
25 player on their machines.
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2 Q. Do you know if there is a Linux-based
3 DVD player that existed?
4 A. I had heard there is something being
5 developed that was not open source. It was closed
6 source. But it was something that was being
7 developed.
8 Q. Why do you say the purpose of DeCSS was
9 to allow DVDs to be played in a Linux-based player
10 if there is no Linux-based player?
11 MR. GARBUS: Objection as to form.
12 A. Because by using DeCSS you would have a
13 Linux-based player, which previously did not exist.
14 In fact, previously was illegal.
15 Q. Do you mean that in order to play the
16 movies you're talking about people are decrypting
17 CSS?
18 A. The only way to play a movie on a Linux
19 machine is to decrypt it so that you can see it on
20 a different platform. The way it had been before,
21 you had to buy a particular operating system or a
22 particular machine that had already been granted a
23 license, which meant that the thousands, millions
24 of people with Linux machines were unable to use
25 DVDs. They had already bought the DVDs. They had
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2 already bought the computers. But they were unable
3 to use them.
4 Q. Is that because the people that held the
5 copyrights to the movies encrypted DVDs so they
6 couldn't be played except on a licensed player?
7 A. My understanding is that they encrypted
8 them and only gave licenses to organizations
9 willing to pay very large fees, and that's
10 basically my understanding of it.
11 Q. Once you decrypt the movie, how can you
12 play it if there's no player?
13 MR. GARBUS: We're talking now about a
14 Linux operating system?
15 MR. GOLD: Yes.
16 MR. GARBUS: Objection to the form of
17 the question.
18 MR. GOLD: Yes, we are talking about
19 Linux.
20 MR. GARBUS: You don't understand the
21 technology, Mr. Gold. I object to the form
22 of the question. It doesn't make sense.
23 Go ahead, answer it.
24 A. Ask it one more time so I'm clear.
25 Q. Once you decrypt the movie how can you
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2 watch it if there's no player?
3 A. My understanding with the way DeCSS
4 works, and I could be wrong because I have never
5 used it myself, is that by using this particular
6 tool you then have a player that will allow you to
7 play the film that you've decrypted.
8 And if that's not the case then there
9 might be another utility out there that does make a
10 player that's a software-based player.
11 Q. You're not sure.
12 A. I am not entirely sure on that, no.
13 Q. When did you first find out as you say
14 that the purpose of DeCSS was to view movies on a
15 Linux player?
16 A. Well, right away we knew that was
17 primary purpose.
18 Q. How did you know?
19 A. By talking to people who were experts in
20 the field of Linux.
21 Q. Who did you talk to?
22 A. I know there are some people involved in
23 the Livid project, L-i-v-i-d, which was a project
24 to make a DVD player for Linux which has been going
25 on for quite some time.
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2 Q. My question was who did you talk to,
3 what person did you talk to that gave you --
4 A. I don't know specific names,
5 unfortunately. These are people I talk to either
6 on line or I met briefly at a conference.
7 Q. What is the -- I see. You have no
8 record of the fact that they gave you this
9 information. No written record.
10 A. I have no written record myself, but
11 it's been posted in many public forums.
12 Q. Did you exchange communications with
13 people involved in the Livid project by E-mail?
14 A. I may have at some point last year when
15 it was first unfolding, yes.
16 Q. Do you have those E-mails?
17 A. No.
18 Q. You wiped them out of --
19 A. I don't save outgoing mail and I am very
20 stingy with what I save because I get so much mail.
21 Q. Can it be retrieved from your hard
22 drive?
23 A. No. It was so long ago.
24 Q. For how long can you retrieve messages
25 on your hard drive?
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2 A. I have never tried. I mean, it's a
3 Unix-based system. I think it's very -- it's not
4 like the White House. It is very difficult to
5 retrieve something.
6 Q. Is it fair to say you actually don't
7 know whether or not these messages could be
8 retrieved?
9 A. Oh, I am pretty positive they can't be
10 retrieved.
11 Q. When you mean "pretty positive," what
12 does that mean? Not positive or positive?
13 A. Positive.
14 Q. Positive.
15 A. Yes.
16 Q. How did you get to know that it is
17 positive that you can't retrieve messages that are
18 six months old?
19 A. Well, I base that on when I wanted to
20 retrieve things in the past and I asked sysadmins.
21 I asked them can I get this back and they say no
22 way.
23 I imagine that probably holds true no
24 matter what the contents were.
25 Q. And you have no knowledge of anyone on
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2 the Livid project that you talked to about DeCSS.
3 A. Not off the top of my head. I mean,
4 it's not that large an organization, so I don't
5 think it's difficult to figure out who --
6 MR. GARBUS: If you leave a space in the
7 deposition, Mr. Goldstein, when he returns
8 the deposition, will see if he can recall
9 any names and will put them in the
10 deposition.
11 MR. GOLD: OK.
12 TO BE FURNISHED: ________________________________
13 __________________________________________________.
14 Q. Do you know any people who belong or who
15 work on the Livid project whether or not you have
16 talked to them?
17 A. Just through a communication and
18 possibly meeting them at a conference.
19 Q. Do you know their names?
20 A. I'd probably remember if I heard them.
21 But I don't remember the names off my head.
22 Q. What is the Livid project?
23 A. As I said, Livid project, my
24 understanding is an ongoing project to make a
25 DVD player for Linux machines.
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2 Q. And they're still at it?
3 A. I believe so.
4 Q. How do you know?
5 A. I've just heard from various public
6 discussions.
7 Q. Prior to your conversations with your
8 attorneys this week, did you believe that you were
9 allowed to post DeCSS or link to other sites
10 posting DeCSS as long as several people downloaded
11 DeCSS to engage in cryptographical research?
12 MR. GARBUS: Can I hear the question
13 again.
14 (A portion of the record was read.)
15 MR. GARBUS: I object to the form of
16 the question. It's several questions in
17 one. Can't you just ask the question
18 simply? There are several different parts
19 of the question, Mr. Gold. Don't you see
20 that?
21 Do you understand the question? Can
22 you answer it?
23 THE WITNESS: I will give it my best
24 shot.
25 A. Basically I think it's not a conditional
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2 thing. When you post something, you post something
3 as long as somebody downloads it for a particular
4 purpose.
5 Our understanding was that it was
6 perfectly OK to post this. Obviously when the
7 injunction happened we stopped posting it. And
8 linking is a completely different issue.
9 Q. So I take it it was not your
10 understanding that you were allowed to post DeCSS
11 as long as several people downloaded CSS to use --
12 downloaded DeCSS --
13 MR. GARBUS: Object to the form of the
14 question.
15 Q. -- in order to engage in cryptographical
16 research?
17 A. I think I answered. I think I
18 answered as best I can. It's not a yes-no
19 question. You have a conditional phrase in there,
20 so --
21 Q. Is it your belief that DeCSS can be made
22 available to anyone in the United States as long as
23 a few people use it for cryptographical research or
24 reverse engineering?
25 MR. GARBUS: I object to the form of
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2 the question. I don't understand it. It's
3 a conditional question. Can't you rephrase
4 the question in an intelligible way?
5 Q. You can answer.
6 A. Again, it is information. We can't put
7 conditions on the exchange of information and say,
8 you can only read this if you're going to use it in
9 a particular way. We put up information on our
10 site and people read it. That's the relationship
11 we have.
12 Q. So your right to post DeCSS doesn't
13 derive from the fact that -- it doesn't derive from
14 how it is used by the end user; is that right?
15 MR. GARBUS: I will object to it.
16 That's not what the witness said. The
17 witness said --
18 MR. GOLD: I don't care what the
19 witness said. I am asking a different
20 question.
21 MR. GARBUS: If you don't care what
22 the witness said, Mr. Gold, then you can't
23 say isn't this -- what you just said. If
24 you're not going to listen to the witness,
25 then don't listen to the witness. But you
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2 can't phrase questions that way. I object
3 to the form of the question. And you know
4 better than that.
5 Q. Do you believe that the end use of DeCSS
6 has nothing to do with the lawfulness of posting
7 it?
8 MR. GARBUS: I object to the form of
9 the question. I object to the question on
10 the grounds that it calls for a legal
11 conclusion. This witness is not a lawyer.
12 Nor should he be asked about questions
13 concerning legal conclusions.
14 If there's anything that in that
15 question that comes as a result of
16 conversations that you and I have had as
17 counsel, namely with respect to legal
18 conclusions, just say it. If you think you
19 can answer the question in some intelligible
20 way, then answer it.
21 THE WITNESS: Could you read back the
22 question, please.
23 MR. GARBUS: Mr. Gold, I don't know
24 what you're doing. These questions are not
25 admissible at a trial. The judge won't let
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2 you ask him. So why ask them here now?
3 (A portion of the record was read.)
4 MR. GARBUS: If you can't answer the
5 question, just say you can't answer the
6 question.
7 A. It's a really hard question for me to
8 answer. I don't think they're related, no.
9 That's my view as a journalist. I am not a legal
10 expert.
11 MR. GOLD: Mr. Garbus, I am going to
12 respectfully request that you cease from
13 directing your witness on how to answer a
14 question. If you wanted to do that before
15 you came here today, you had ample
16 opportunity. If it continues, I will take
17 it to the judge and we'll play the movie.
18 MR. GARBUS: Whatever you want to do
19 is fine.
20 MR. GOLD: I will have to. It's
21 inappropriate.
22 Q. Prior to talking to your lawyer in the
23 last two days did you have an understanding of the
24 meaning of the word "fair use"?
25 A. Yes.
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2 Q. Is that an understanding you came to
3 through your profession as a journalist?
4 A. Yes.
5 Q. What was that understanding?
6 A. That it's legal to use bits of
7 copyrighted material for the purpose of describing
8 something, showing an example of something. For
9 instance, even a student presenting something to a
10 class might play something from a videotape for
11 instance. That's fair use. You might see
12 something on television that shows a scene from a
13 particular movie. That's fair use. A parody is
14 fair use.
15 Q. Was it your understanding before you
16 talked to your lawyers in the past two days that
17 fair use only related to using bits of copyrighted
18 work or pieces of copyrighted work but not the
19 whole thing?
20 A. That's my understanding. The whole
21 thing isn't exactly fair use.
22 MR. GOLD: I would like to have this
23 marked as Plaintiffs' Exhibit 2.
24 MR. GOLD: A document which on the
25 cover says "2600, The Hacker Quarterly,
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1 Goldstein
2 Volume Seventeen, Number One, Spring 2000."
3 (Plaintiffs' Exhibit 2, Spring 2000
4 issue of 2600, The Hacker Quarterly,
5 magazine, marked for identification, as of
6 this date.)
7 Q. Can you describe that document,
8 Mr. Goldstein?
9 A. Yes. This is the magazine I publish,
10 2600, The Hacker Quarterly. This is the spring
11 2000 edition.
12 Q. On page 7 there is what appears to be a
13 photograph.
14 A. Yes.
15 Q. Is that in fact a photograph?
16 A. It's a doctored photograph. This is --
17 it's parody. It's basically taken from the World
18 Trade Organization demonstrations and you spot MPAA
19 on the back of their jackets.
20 Q. So if you know, is it true that the only
21 thing in this picture that's not true, not actual,
22 are the initials MPAA?
23 A. Well, the initials are --
24 Q. I mean, that's not a photograph of
25 somebody.
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1 Goldstein
2 A. No, as I said, we put MPAA over whatever
3 was there before, if there was anything there
4 before. So no, there were not MPAA storm troopers
5 in the streets.
6 Q. But pictures of these troops or police
7 people, that was an actual photo?
8 A. That was an actual photograph, yes.
9 That was taken in Seattle in November.
10 Q. And in what demonstration did you say?
11 A. World Trade Organization.
12 Q. What was the demonstration about?
13 A. That was demonstration against the World
14 Trade Organization in Seattle. November 30th, I
15 think.
16 Q. In the second paragraph there's some
17 discussion about a Mitnick. I gather that's a
18 Mr. Mitnick? Page 5.
19 A. Yes.
20 Q. Who is he?
21 A. Kevin Mitnick was a computer hacker who
22 had been imprisoned for five years.
23 Q. Do you know what he was convicted of?
24 A. In the end he was convicted of basically
25 misrepresenting himself on the telephone and having
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2 source code that belonged to cellular phone
3 companies that was looking at.
4 Q. Do you know anything about the charge of
5 misrepresenting himself on the telephone?
6 A. It's basically calling someone on the
7 phone saying that you're an employee of a
8 particular company when you're not in order to get
9 some bit of information. That's my understanding
10 of it in his particular case.
11 Q. And that's the only crime you know of
12 that he was convicted of?
13 A. In the end, that's the only crime he was
14 charged with, yes. And that's why we took the case
15 up because we thought it was rather unfair that
16 someone would be locked away for five years for
17 something rather minor.
18 Q. When you say you took the case up, what
19 does that mean?
20 A. As far as writing about it, as far as
21 following it and currently producing a documentary
22 on it.
23 Q. Where did 2600 come from?
24 A. Do you mean the name?
25 Q. Part of the name of The Hacker
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2 Quarterly.
3 A. Well, 2600 is a frequency that if you go
4 back into history, back into the early 1960s, when
5 people first started exploring the phone network,
6 the sound of 2600 hertz tones would basically
7 disconnect whatever call you were connected to and
8 put you in what's known as operator mode, where you
9 could basically explore the entire phone network.
10 That was back in the day when there was just one
11 phone network run by AT&T.
12 Q. Could you then make calls without paying
13 for them?
14 A. That was one thing you could do. But
15 you could also explore and talk to operators in
16 various places and just learn how the whole thing
17 was pieced together.
18 That's where the term "phone freaking"
19 was established. That's where a lot of hackers
20 traced their roots to, just exploring one of the
21 first major computer systems in existence.
22 Q. And you adopted the 2600 as your
23 masthead, your banner?
24 A. Yes. Well, the number had some
25 significance and it was rather an unusual name, so
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2 it appealed to us.
3 Q. Were you ever involved in any activity
4 in any way relating to abusing the phone system?
5 A. No.
6 Q. Did you ever make phone calls without
7 paying for them?
8 A. No.
9 MR. GARBUS: Note my objection to the
10 question and the previous question.
11 Q. Have you ever been convicted of any
12 crime?
13 MR. GARBUS: Objection.
14 A. I was -- I had gotten in trouble for
15 computer hacking in 1984, which was the first year
16 our magazine came out.
17 MR. GARBUS: I object to the question.
18 I object to the entire line of inquiry. I
19 think I will direct the witness not to
20 answer unless the judge rules.
21 MR. GOLD: On what ground?
22 MR. GARBUS: I would ask you to go on,
23 and if you can get a ruling from the court
24 that is favorable to you, then he will
25 answer the question. But I think it is
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2 inappropriate.
3 Q. When you used the word "in trouble,"
4 sir, what did that mean to you?
5 MR. GARBUS: I object to the question
6 and direct the witness not to answer until
7 such time as the court rules.
8 Q. May I see that for a second, sir?
9 A. Sure.
10 Q. Thank you. Turning to page 6 of the
11 document, the right-hand column, about in the
12 middle of the paragraph, which is the last full
13 paragraph on the page, the following words are
14 written: Quote, So under the DMCA it is illegal to
15 play your DVD on your computer if your computer
16 isn't licensed for it, close quote.
17 MR. GARBUS: Excuse me. I don't see
18 where you are.
19 MR. GOLD: You don't see the language?
20 MR. GARBUS: Oh, I see. I have it
21 now.
22 Q. Is that true?
23 A. That's, um --
24 MR. GARBUS: I object to it. It's a
25 legal conclusion.
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2 A. That's my understanding. I mean, I
3 wrote that piece, so....
4 Q. What is that, sir?
5 A. I wrote that piece, so that is my
6 understanding, yes.
7 Q. How did you come to that understanding?
8 MR. GARBUS: I will object to it. I
9 think I will direct the witness not to
10 answer. It is a legal conclusion. If the
11 judge directs him to answer, then he will
12 answer the question.
13 Q. The next sentence, states, quote, "It's
14 illegal for you to figure out a way to play a
15 European DVD on your TV set." Is that true?
16 MR. GARBUS: I will object to the
17 question, direct the witness not to answer.
18 Calls for a conclusion of law. If the judge
19 directs a journalist to answer about
20 something that he has written, then of
21 course he will answer it.
22 Q. The last sentence says, "if you rent a
23 DVD" -- I think it says, "And if you rent a DVD
24 from your local video store, figuring out a way to
25 bypass the commercials in the beginning could land
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2 you in court or even prison." Is that true?
3 MR. GARBUS: I direct the witness not
4 to answer. It calls for a legal conclusion.
5 To the extent that it is based on
6 conversations with counsel, it comes within
7 the privilege. If the judge decides that
8 the privilege doesn't apply or that he
9 should answer the question, then he
10 certainly will.
11 Q. I believe, Mr. Goldstein, that you wrote
12 this piece that we're now --
13 A. Yes.
14 Q. -- making some kind of fair use of?
15 A. Yes. You can make copies of it.
16 That's perfectly OK.
17 Q. Thank you, sir.
18 A. Sure. Now, if that was a DVD, you might
19 have some trouble.
20 Q. What's that, sir?
21 A. If that was a DVD it might be a
22 different story.
23 Q. Do you mean if anyone makes a copy of a
24 DVD he would violate the law?
25 MR. GARBUS: I will object to the
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2 question.
3 Q. Do you believe that, sir?
4 MR. GARBUS: I will object to the
5 question. 2600 wouldn't sue. DVD might
6 sue. MPA might sue. It is not just a
7 question of the law. I direct the witness
8 not to answer.
9 Q. At the end of that page, the following
10 is contained: "The world the MPAA and
11 megacorporations want us to live in is a living
12 hell." What do you mean by "living hell"?
13 A. Well, what we're going through right now
14 is kind of a living hell. I see that happening to
15 a lot more people.
16 Q. So the only thing you meant by "living
17 hell" was that the MPAA would cause suits to be
18 brought against people it thought were violating
19 the law?
20 A. I believe Jack Valenti said they'd file
21 a thousand lawsuits a day if necessary.
22 Q. Against people who violate the law?
23 A. Against people they feel like filing
24 suits against.
25 Q. Is that what he said or did you just
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2 make that up?
3 A. Not the last part, but he did say a
4 thousand lawsuits a day. That was accurate.
5 Q. Was he talking about law breakers?
6 MR. GARBUS: I will object to it.
7 Q. Did you understand that he was talking
8 about law breakers?
9 A. I don't really know what he was talking
10 about to be honest. He basically seemed to think
11 that lots of people are law breakers without really
12 describing how they broke the law.
13 MR. GARBUS: Can we take our morning
14 break now? It's 11:30.
15 MR. GOLD: Sure.
16 THE VIDEOGRAPHER: The time is 11:22
17 a.m. We're going off the record.
18 (A recess was taken.)
19 THE VIDEOGRAPHER: The time is 11:40
20 a.m. We're back on record.
21 MR. GARBUS: I am going to withdraw my
22 objection to your question about the 1984
23 incident. If you want to pursue it, you can
24 pursue it. I don't think it is appropriate.
25 If you want to pursue it, I think you should
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2 pursue it.
3 BY MR. GOLD:
4 Q. You referred, I believe, to getting in
5 some trouble in 1984.
6 A. Yes.
7 Q. What was that about?
8 A. It involved one of the first cases of
9 computer hacking. Basically there was a system,
10 still is a system known as Telenet, where basically
11 it was protected with one-letter passwords, the
12 letter A. And a lot of organizations were wide
13 open -- Raytheon, Coca-Cola, in fact, even the
14 Executive Office of the President.
15 And when they finally discovered that
16 their system was wide open, I basically came
17 forward and explained it to them. I was indicted,
18 but I think I was dealt with fairly. I paid
19 restitution and was on probation. I never did it
20 again. And from that point I've tried to set a
21 good example through the magazine. So people don't
22 make that kind of mistake and so that they are
23 dealt with fairly if they do.
24 Q. Did you plead guilty to some charge?
25 A. I believe back then it was wire fraud,
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2 yeah. It was -- basically I explained how the
3 system worked to them and I think they benefitted
4 from that.
5 MR. GARBUS: You should know,
6 Mr. Gold, my understanding is the file was
7 sealed and that none of this is a matter of
8 public record. I would expect you to treat
9 the record appropriately on your own motion.
10 MR. GOLD: Certainly.
11 MR. GARBUS: My understanding also is,
12 and I could be wrong, that he was given an
13 ACD, which is an adjournment in
14 contemplation of dismissal or the equivalent
15 of it. So that the record was sealed and
16 charges against him were dismissed.
17 Now, I have not seen, because it's not
18 public knowledge, what the record is. So
19 again, I would ask you to deal with this
20 transcript appropriately. I didn't want to
21 get put into the position, Mr. Goldstein
22 didn't want to be put in the position of
23 having not to answer any question you
24 raised.
25 But the fact that the file is sealed
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2 it seems to me is of significance.
3 MR. GOLD: Just so that we understand,
4 I gather what you're asking me is to show
5 this only to other lawyers working on the
6 case and including lawyers at MPA working on
7 the case.
8 MR. GARBUS: No, I am asking you to
9 use your judgment as to how you deal with
10 this appropriately.
11 MR. GOLD: Well, let me tell you what
12 I think I am going to do, because we'll send
13 the transcript to lawyers for the companies,
14 to lawyers for the MPA, and to lawyers here,
15 and we'll use it in court.
16 Is there anything about that that you
17 find inappropriate so I can consider it?
18 MR. GARBUS: I will take it under
19 advisement.
20 MR. HERNSTADT: We'll designate it in
21 the ordinary course.
22 MR. GOLD: Just tell me what you mean
23 and what you want and if it doesn't block me
24 from what I am doing, that's what I will do,
25 is all I am asking. I have no interest in
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2 anything else but this case, and ....
3 BY MR. GOLD:
4 Q. When you use the word "hacking," what
5 does that mean? As you use it, sir.
6 A. My definition of hacking is basically a
7 form of asking a lot of questions, experimenting
8 with technology, basically twiddling with something
9 till you get it to work just right. Hacking can
10 encompass any number of things, things that are in
11 your own house, things that you encounter on a
12 day-to-day basis.
13 Q. So it doesn't necessarily involve
14 breaking into somebody else's computer system?
15 A. Not at all. That's a media definition.
16 That's how the media has distorted the word over
17 the past decade or so. But the real world of
18 hacking, I think if you go through our pages you
19 will see that it encompasses quite a bit more. Not
20 just things like that.
21 Q. What would it include, if you can give
22 us an example?
23 A. For instance, your own computer, there's
24 a world of things you can hack in your own
25 computer. Your own telephone, there's ways of
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2 figuring out how to dial certain things. You know,
3 only simpleminded people think it's just to get a
4 free phone call.
5 No, there are things hidden within the
6 switch. For instance, there is a number you dial
7 to read back your phone number. And it's always
8 considered a triumph when you figure out what that
9 number is.
10 To most people hacking is a big waste of
11 time because there is no immediate payoff. That's
12 something only people who are hackers understand,
13 the thrill of figuring something out.
14 I should say also a lot of journalists
15 have the same thrill, when they figure something
16 out, when they chase down a source or uncover
17 something no one else has uncovered. So I think
18 the two are very tightly combined. The fact that
19 I'm both a hacker and a journalist, you know,
20 there's a lot to talk about.
21 Q. Is the next chapter a regular piece in
22 all issues of 2600?
23 A. You mean our editorial.
24 Q. Is that your editorial?
25 A. Yes. The editorial is always the first
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2 thing that appears after the staff box.
3 Q. And you write all of the editorials?
4 A. Yes, I write the editorial.
5 Q. Do I take it as far as you know all
6 statements made in your editorials are true?
7 MR. GARBUS: I will object to that.
8 A. It's my opinion.
9 Q. Based on your information and belief?
10 A. Based on my opinion as journalist what I
11 say is true.
12 MR. GARBUS: When a journalist calls
13 Bush a crook or a journalist says that
14 Clinton is a felon, it doesn't necessarily
15 mean he has been adjudicated a crook or
16 adjudicated a felon.
17 MR. GOLD: That was very interesting,
18 Mr. Gorbus.
19 MR. GARBUS: The name is Garbus. You
20 said Gorbus. Garbus.
21 MR. GOLD: I said what? But if I can,
22 Mr. Garbus, may I just on this record ask
23 questions to your witness and have him
24 answer it and have you withhold all of your
25 learning about whatever it is?
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2 Q. Is it your belief that journalists have
3 any special exemptions from the law that applies to
4 everyone else?
5 A. No.
6 Q. Can I see that?
7 A. Sure.
8 Q. Thank you, sir. Reading a sentence at
9 page 6, right-hand side, it's in the second full
10 paragraph. The second sentence says, referring
11 to -- well, the paragraph begins, "The MPAA is
12 coming at us using a very scary piece of law that
13 civil libertarians have been wanting to challenge
14 since its inception."
15 Do you see that?
16 A. Yes.
17 Q. What is it that you mean when you say
18 civil libertarians have been wanting to challenge?
19 What is it they have been wanting to challenge?
20 MR. GARBUS: I object. It says what
21 it says. He is not an interpreter. He
22 wrote it.
23 Go ahead. Answer the question.
24 A. Basically it's the Digital Millennium
25 Copyright Act that people such as civil
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2 libertarians in the Electronic Frontier Foundation
3 as well as the ACLU have been wanting to challenge
4 and I believe now they are challenging it because --
5 I am not a lawyer, but as a journalist I see
6 problems with the way it's written and with
7 basically ways it can be abused.
8 Q. What are the problems that you see?
9 A. Well, for instance, this whole thing
10 here is based on an interpretation of the DMCA,
11 which I don't think was the intention of the people
12 who wrote the DMCA.
13 Q. Which part of it?
14 A. Basically that would make someone
15 subject to lawsuits if they figure out how
16 something works. You know, it seems to me to be
17 something that's a pretty ingrained part of our
18 society where you're allowed to talk about things,
19 figure things out, spread information. We know
20 theft is wrong. We know taking something that
21 doesn't belong to you is wrong or misrepresenting
22 yourself is wrong.
23 But that's not what this is about. This
24 is about figuring out how technology works and
25 being told that that's wrong, and that's where I
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2 have a problem with it. But again, I have to
3 stress, I am not a lawyer. I am speaking as a
4 journalist. That's my opinion on it.
5 Q. Are you involved in figuring out what
6 DeCSS means?
7 A. Well, in addition to not being a lawyer,
8 I am also not an engineer.
9 MR. GARBUS: Object to the form of the
10 question.
11 A. I know many people who are engineers and
12 I respect what they do, and I believe I defend what
13 they do in my pages.
14 Q. Who is it by name, if you can, if you
15 know who is trying to figure out what DeCSS means?
16 A. Do you mean who is trying to --
17 MR. GARBUS: I object to form of the
18 question. I also object to all these
19 questions that call for his legal
20 conclusion. The witness is stating his
21 opinion as a journalist and not his position
22 in the lawsuit.
23 MR. GOLD: Oh, I thought you said
24 physician.
25 A. Do you mean who is trying to figure
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2 out CSS? Because DeCSS is --
3 Q. Who is trying to figure out CSS? Thank
4 you. You're right.
5 A. A lot of people. I mean, like I
6 mentioned the people in the Linux world. People
7 in -- I believe in the Livid project as well,
8 although they were basically trying to create a
9 Linux player. A lot of people have gotten very
10 interested in how encryption works over the years.
11 Encryption is a very important thing.
12 It's our key to privacy. It's traditional in the
13 hacker world when encryption goes back, you tell
14 people about it. Because that way the next bit of
15 encryption is a lot more secure.
16 I think also what you're seeing here, a
17 lot of people think it would be wrong not to tell
18 people when encryption doesn't work, as is the case
19 with CSS.
20 Q. In the last answer that you gave, when
21 you used the word, quote, a lot of people, what did
22 you mean?
23 A. A lot of people in the community, in the
24 Linux community. People on public forums such as
25 Slash Dot. Basically people on the Net who know
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2 what they are talking about. People who run
3 businesses, people who are engineers, scientists,
4 you name it.
5 Q. Do you know how many?
6 A. Thousands.
7 Q. How do you know that?
8 A. I see The Post. You know, we -- we talk
9 to these people at meetings, at conferences. It's
10 a lot of people. And also a lot of people who
11 don't have knowledge that understand the
12 journalistic implications here.
13 So it's really helped us reach out to a
14 lot of people.
15 Q. In the second sentence of the same
16 paragraph you wrote the following: "It's called
17 the Digital Millennium Copyright Act and it
18 basically makes it illegal to reverse engineer
19 technology."
20 Is that your understanding?
21 A. That's my understanding based on this
22 lawsuit.
23 Q. You think that's what this lawsuit is
24 about?
25 A. It appears that way to me. Because
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2 DeCSS was written for reverse engineering purposes.
3 So if that's found to be illegal then under the
4 DMCA.
5 Q. The next sentence says, "this means
6 you're not allowed to take things apart and figure
7 out how they work if the corporate entities
8 involved don't want you to."
9 Is that true?
10 A. That's based on my previous thought,
11 that if that is in fact proven to be the case, then
12 yes, that's how it will be decided.
13 Q. And that's what this lawsuit is about as
14 far as you know?
15 A. That's what it looks like to me, yes.
16 Q. Are there monthly 2600 meetings?
17 A. Yes. We meet on the first Friday of
18 every month in cities. In fact, if you look on
19 page 58, it's a list of all the cities we have
20 meetings in around the world.
21 Q. When say "we," who are you talking
22 about?
23 A. 2600, the magazine, a very loosely based
24 group of people that have similar ideologies on
25 things.
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2 Q. These meetings are held where?
3 A. Various public gathering places. For
4 instance, in New York, in the lobby of Citicorp.
5 Q. Who comes to them? Subscribers to 2600?
6 A. Everyone is welcome. Basically
7 subscribers, passersby, businessmen, kids,
8 governmental agents. You name it. We get all
9 kinds of people.
10 Q. Are any minutes taken of these meetings?
11 A. No, perhaps "meeting" is the wrong word
12 in this context. "Gathering" is probably a better
13 word for your understanding.
14 There is no agenda. There is no one
15 person speaking to everybody. It is kind of -- we
16 think of it as kind of similar to what the Internet
17 world is like where everybody has an equal voice,
18 you talk to whoever you want to talk to. If you
19 want to be anonymous, you be anonymous.
20 But basically, we respect each other.
21 We don't break any laws. We basically exchange
22 information, talk, learn about things. We have
23 been having meetings since 1987.
24 Q. Would it be correct to say that
25 everybody comes to one place and sort of hangs? Is
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2 that what you mean?
3 A. Pretty much, yeah.
4 Q. No speeches.
5 A. No. Not that I know of, anyway.
6 Q. What reverse engineering purposes was
7 DeCSS written for?
8 A. By reverse engineering CSS it became
9 possible to make DVDs playable on other operating
10 systems besides Microsoft, McIntosh, both for
11 operating systems like Linux and future operating
12 systems that have not yet been written and may not
13 have ever been written. Because if your operating
14 system can't do something basic like play a DVD,
15 it's not going to be very popular.
16 Q. How was CSS cracked?
17 A. Again, I am not an engineer. My
18 understanding is that one of the companies that was
19 licensed was -- hadn't encrypted their copy of CSS,
20 which made it possible to reverse engineer it based
21 on that. So it was basically their
22 irresponsibility that led to this.
23 Q. So is it true the fact that it was
24 cracked didn't relate to how strong or weak it was?
25 A. It still had to be figured out after
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2 that. It was -- it probably made it easier the
3 fact that they didn't encrypt their copy of it.
4 But there's -- our basic view is that
5 any form of encryption will be eventually cracked
6 and you have to live your life realizing that and
7 always be prepared to improve your encryption.
8 Q. Is that why you say that CSS was a weak
9 system?
10 MR. GARBUS: Objection. That's not
11 what he said.
12 A. That's not --
13 Q. I asked you a question.
14 A. That's not why I say that it's -- I
15 believe CSS was weak based on what I was told by
16 engineers. But I think it would have been -- it
17 would have been cracked whether or not that company
18 had an unencrypted copy or not.
19 Q. It would have been cracked sooner or
20 later.
21 A. Sooner or later, yes, as any encryption
22 will be.
23 Q. How long had CSS existed before one of
24 its users didn't encrypt a DVD with it?
25 MR. GARBUS: Object to the form of the
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2 question. He already testified in '97. But
3 your question is a bad question. With all
4 due respect, Mr. Gold, I don't think you
5 understand the technology.
6 MR. GOLD: Who cares what you think?
7 Don't be impolite. I find it very
8 offensive.
9 I'll take a test with you sometime
10 after the case is over. Is that the sort of
11 competition you have in mind?
12 MR. GARBUS: Go ahead.
13 THE WITNESS: Maybe you can read back
14 the question. I got distracted.
15 (A portion of the record was read.)
16 A. CSS existed ever since DVDs were
17 released, to my understanding.
18 Q. Approximately how long?
19 A. I would say DVDs were probably released
20 I think probably around '95/'96. Again, I am not
21 entirely certain about this. But -- and also, I'm
22 presuming that the company -- I believe its name is
23 Xing, X-i-n-g, hadn't been encrypting all along, so
24 that may or may not be true, but that's my
25 understanding.
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2 Q. So CSS was out there for four to five
3 years before it was cracked?
4 A. It may have been. Again, this is not
5 something that I am an expert in. They may have
6 been a fairly new company that had just started
7 using it and maybe they were only doing it for six
8 months. I don't know the facts in this.
9 Q. Is the fact that CSS was being used for
10 four to five years and then it was cracked in the
11 way that you've described, a reason why you say
12 that CSS is weak or was weak?
13 MR. GARBUS: I object to it. That's
14 not what he said.
15 MR. GOLD: That's why I asked him is
16 that true.
17 MR. GARBUS: You're misstating the
18 witness's testimony.
19 MR. GOLD: Would you read the question
20 back to the witness.
21 (A portion of the record was read.)
22 A. I am not certain it was being used
23 that long. And I am also not certain how long it
24 existed in an insecure state so that it could be
25 cracked quicker. I also don't know how long people
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2 were actively trying to do this.
3 While DVDs were released several years
4 ago, DVDs on computers are a fairly new phenomenon.
5 So I don't think very many people in the Linux
6 community would be trying four years ago to crack
7 this. I think once they set their minds to the, it
8 wasn't very difficult.
9 Q. But they didn't do it without someone
10 failing to encrypt.
11 A. That helped. I don't think it would
12 have prevented things in the end.
13 Q. What do you mean by, quote, in the end?
14 A. I think it would have been -- one thing,
15 the encryption was developed in a closed
16 environment. If you want good encryption you
17 develop it in an open environment so people can
18 test it before it actually goes on the market.
19 CSS was developed so that nobody really
20 knew the equation, and thus they didn't have a
21 chance to really test it amongst the people who
22 would figure it out. So I think that was a big
23 disadvantage that they had, and that's something
24 the open source community has always supported is
25 openly developing these things. So ironically they
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2 would have had a more secure encryption standard
3 had they consulted with these people.
4 MR. HERNSTADT: Off the record.
5 (Discussion off the record.)
6 MR. GOLD: I would like to have this
7 marked as Plaintiffs' Exhibit 3.
8 (Plaintiffs' Exhibit 3, document
9 headed "2600/News Archive, Page 1 of 2,"
10 marked for identification, as of this date.)
11 Q. Is this a news story you wrote and put
12 on the 2600 web site?
13 A. Just trying to determine if this is one
14 of the ones I wrote. I definitely approved it and
15 put it on the 2600 web site.
16 Q. Well, take your time and read it and see
17 if you wrote it.
18 MR. GOLD: I don't think it's
19 appropriate to talk to the witness,
20 Mr. Garbus, in between a question and an
21 answer.
22 A. I believe this was one of Macki's. It's
23 based on the phraseology.
24 Q. Who is Macki?
25 A. Macki is our webmaster. But I read this
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2 and approved it.
3 Q. Did you believe it true when you read
4 it?
5 A. I believed it true when I read it, yes.
6 There are a couple of technical issues here that
7 have since been proven to be inaccurate. I think
8 that goes to show that even we didn't have a
9 complete understanding of the technology at the
10 time.
11 Q. What in this article do you now believe
12 was incorrect?
13 A. There is one part here, I think it's the
14 third paragraph down, under the date, where it says
15 that this facilitated the copying of DVDs.
16 Again, it's the nature of the Net, when
17 something is released, that people don't always
18 have the complete facts. And when we researched
19 this more afterwards, and you will find this in
20 later news articles, we realized that it was not
21 about copying DVDs. We were kind of taken in at
22 the beginning too. It's not about that at all.
23 Q. What sentence were you reading from?
24 A. I am reading the first sentence in the
25 third paragraph.
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2 Q. "As a result they were able to create
3 DeCSS --
4 A. Yes.
5 Q. "-- a free DVD decoder, that not only
6 facilitated the creation of previously unavailable
7 open source DVD players for Linux -- also allowed
8 people to copies DVDs."
9 Are you now saying that any part of that
10 sentence is incorrect?
11 A. The last part of that sentence is
12 incorrect, because as we --
13 Q. Which part? Do you mean the "also
14 allowed people to copy"?
15 A. Yes.
16 Q. Is it a fact that the free DVD decoder
17 that you talked about at the beginning of the
18 paragraph in fact did allow people to copy DVDs?
19 A. No, the fact is that DVDs have always
20 been able to be copied. The only thing that DeCSS
21 does is allow them to be played on a different
22 platform.
23 Q. And it's your testimony that DeCSS does
24 not decrypt?
25 A. DeCSS does decrypt. It does not make it
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2 any easier to copy. It allows you to be able to
3 view it on the platform of your choice.
4 Q. When you decrypt DVD is a copy made on
5 your hard drive?
6 A. I have never used the program.
7 Q. So you don't know.
8 A. I don't know if a copy is made on your
9 computer. I don't know anybody with the size of a
10 computer that would be able to hold an entire DVD.
11 It's an incredible --
12 Q. So what you're saying is you don't know
13 whether or not a copy of the DVD is made when you
14 decrypt it on your hard drive.
15 A. I don't know for sure. I think it is
16 irrelevant because --
17 Q. Before we get to the irrelevant part,
18 how can you say that no copies are made unless you
19 know that DeCSS does not put a copy on your hard
20 drive when you decrypt it?
21 MR. GARBUS: I object to the form of
22 the question. You're misstating the
23 witness's testimony. You are not
24 understanding the technology. I will allow
25 the witness to answer the question if he
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2 can.
3 A. I will try to explain this. Basically
4 copying of DVDs has been going on since virtually
5 day one. When you copy a DVD, you're copying
6 something that's encrypted, and as long as you have
7 a player, the player doesn't care if it's a copy or
8 if it's the original.
9 Whether or not you copy something that
10 is unencrypted on to your hard drive or encrypted,
11 it doesn't make any difference. If DeCSS allowed
12 you to copy the unencrypted file on to your hard
13 drive, it's no different than copying the encrypted
14 file on to your hard drive, because what CSS did
15 was decrypt that. All you needed was a valid
16 player and that would allow you to view an
17 encrypted file.
18 So again, I am not -- I have never used
19 it. I don't know anybody who has used it. I don't
20 know anybody who would have the hard drive space to
21 hold an entire DVD. But even if it was possible,
22 and I stress "if," it wouldn't make a difference
23 because you can still play an encrypted DVD using a
24 valid CSS player as has been done for years.
25 Q. But you've got to first decrypt the DVD.
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2 A. CSS decrypts the DVD.
3 Q. Do you believe that that's true?
4 A. Yes, that's the purpose of it. It's in
5 every DVD player, whether it's on an operating
6 system, whether it's a stand alone unit, the copy
7 of CSS that's in there is what decrypts the DVD.
8 And that's why I say that if you make a
9 bit by bit copy of an illegal DVD like, say, from
10 Asia or something like that, as has been done for
11 years, it's not going to know the difference. It
12 will see the encryption and decrypt it whether it's
13 a copy or the original.
14 And that's why I say it's irrelevant
15 whether or not -- whether or not you have an
16 unencrypted copy on your hard drive, because you
17 can still just as easily, even easier in fact,
18 decrypt an encrypted copy.
19 Q. So then I take it you don't know one way
20 or the other whether when you decrypt a DVD a copy
21 is put on the hard drive.
22 A. I don't know since I have never done it.
23 Q. Now, at the end of that same paragraph
24 there's a reference to, quote, antiquated
25 encryption export laws, close quote.
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2 What does that mean?
3 A. I believe that refers to the fact that
4 there are strict limitations on encryption that we
5 export from this country, and because DVDs are
6 exported overseas, an artificially weak encryption
7 was used.
8 Q. Because of this law?
9 A. Because of a law. I am not sure which
10 law it is, that considers encryption an armament
11 and basically forced them to encrypt in a rather
12 weak state. Something I don't think anybody who
13 knew what they were doing would be happy with. And
14 that of course led to it being cracked a lot
15 earlier.
16 Q. On the same document, sir, the last
17 sentence on page 1, begins, quote, That is why we
18 feel it's necessary to preserve this information,
19 period. We do feel sympathy for the DVD industry
20 now that their encryption has been cracked.
21 Perhaps they will learn from this, close quote.
22 What learning did you have in mind?
23 A. Well, it was our hope that they would go
24 on and come up with a better way of encrypting DVDs
25 and learn from the mistakes they made and not
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2 continue to go after people. And though I should
3 stress that this article is before any papers were
4 filed against us. Obviously they didn't follow
5 that.
6 Q. So do you feel or do you believe that
7 part of the use of DeCSS is to teach the movie
8 companies that they have got to make tougher
9 protective devices around their copyrighted work?
10 MR. GARBUS: I object to the form of
11 the question.
12 A. I don't think anyone went out and said
13 let's teach them a lesson. I think basically this
14 is something that happened in the natural course of
15 things, and I think it's an opportunity to learn
16 that's being wasted.
17 Q. Is the export law you talked about in
18 the preceding paragraph still in effect?
19 MR. GARBUS: I will object to....
20 A. Again, I didn't write this article and I
21 am not an expert on law, but I do recall hearing
22 sometime in the recent past that Clinton relaxed
23 some export regulations.
24 Q. And that may or may not be one of them.
25 A. It might be.
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2 Q. I see.
3 Do you consider yourself a hacker?
4 A. Yes.
5 Q. Did you or any other hacker you know --
6 MR. GARBUS: I object to the question.
7 The way he defines hacker.
8 A. The way I define hacker obviously.
9 MR. GARBUS: In other words, the way
10 he's defined hacker he considers himself a
11 hacker.
12 MR. GOLD: Which shows that you were
13 listening.
14 Q. Did you or any other hacker contact the
15 movie industry or Matsushita for the DVD CCA to
16 discuss the findings of the DeCSS creators?
17 MR. GARBUS: I object to the form of
18 the question.
19 Q. The question was did you or any other
20 hacker you know of contact the movie industry or
21 Matsushita or the DVD CCA to discuss the findings
22 of the DeCSS creators?
23 MR. GARBUS: I object to the form of
24 the question. If the witness can answer I
25 will let him answer.
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2 A. Back when this happened, which was early
3 November of 1999, I had never even heard of the DVD
4 CCA, so contacting them wouldn't have even come to
5 mind.
6 We were reporting this as journalists.
7 We were reporting facts. The facts were this was --
8 this happened, this was cracked. And that's what
9 we printed on our pages, that it was cracked.
10 Q. But if a purpose of the cracking was to
11 teach them that they had to make a stronger
12 protective mechanism to protect their copyrighted
13 work, why wouldn't you or someone else involved
14 with DeCSS call them and tell them that?
15 A. I imagine they were contacted.
16 MR. GARBUS: I will object to the form
17 of the question. The New York Times printed
18 it. The San Jose Mercury News printed it.
19 To my knowledge no newspaper reported it.
20 That's not his function. Object to the form
21 of the question.
22 MR. GOLD: Read the question and let
23 the witness answer it.
24 (A portion of the record was read.)
25 A. I believe I said I mentioned they were
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2 contacted at the time.
3 Q. By whom?
4 A. By, well, at this point it was pretty
5 widely reported throughout the Internet. So for
6 them not to know about it I think would be very
7 unusual.
8 Again, we were reporting something that
9 happened. It wasn't our place to go around and
10 make sure that everybody knew about it. It was a
11 fact. We were reporting it. We weren't involved
12 at that point. It was just something interesting
13 that we were following.
14 Q. At the beginning of the deposition or
15 maybe before it started I asked you which name that
16 you would be comfortable that I used, and I think
17 you told me Emmanuel Goldstein.
18 A. As you said, either name is fine.
19 Emmanuel is the name I am known by by most people.
20 Q. What is your legal name?
21 A. Eric Corley is what I was born with.
22 Q. And you never officially changed it.
23 A. No, that's still my legal name.
24 MR. GOLD: I gather there is no
25 objection here with respect to the fact that
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2 he wasn't sworn as Mr. Corley. He was sworn
3 as Mr. Goldstein.
4 MR. GARBUS: That's fine.
5 Q. Were you raised in New York?
6 A. Yes.
7 Q. Which high school did you go to?
8 A. Ward Melville High School in East
9 Setauket, New York.
10 Q. Did you attend college?
11 A. Yes, State University of New York at
12 Stony Brook.
13 Q. What did you major in?
14 A. I was an English major.
15 Q. Did you attend school after you
16 graduated?
17 A. No, I did not.
18 Q. Did you graduate?
19 A. Yes.
20 Q. Did there come a time you began working?
21 A. Yes, I worked in numerous capacities for
22 newspapers and....
23 Q. Which newspapers, and to the best you
24 can, what dates?
25 A. Well, I worked for a newspaper on campus
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2 known as the Stony Brook Press both as an unpaid
3 writer and a paid typesetter, and then I continued
4 working as a typesetter for a local community paper
5 known as the Village Times. And that's when I
6 began publishing my own publication as well.
7 And the rest is pretty much history.
8 Q. Do you receive remuneration from 2600?
9 A. Yes, that's my full-time job now.
10 Q. Is that your sole source of
11 remuneration?
12 A. Right now, yes.
13 Q. Is it correct that the Village Times and
14 then your own publication are the two jobs you had
15 since graduating?
16 A. Going back a long ways, so -- I believe
17 so. I believe that's where I was working right
18 after graduation. I mean, I had part-time jobs
19 before then, but as far as I know, that's -- yeah,
20 that's what I had afterwards.
21 Q. And your home address is what?
22 A. 7 Strongs Lane. That's S-t-r-o-n-g-s.
23 Also Setauket.
24 Q. And I gather your business address is in
25 the magazine somewhere?
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2 A. Yes.
3 Q. In this 2600 Hack Reporter?
4 A. Yes, on page 3, I think.
5 Q. When was 2600 Enterprises Inc.
6 incorporated?
7 A. To the best of my recollection, in 1984.
8 I don't have the specific date.
9 Q. And it was incorporated in New York?
10 A. In New York, yes.
11 Q. Who are its directors at present?
12 A. I am the sole provider.
13 Q. There is no board of directors?
14 A. No, there is none.
15 Q. Are you the only officer?
16 A. Yes.
17 Q. Does 2600 Enterprises Inc. have any
18 employees?
19 A. We have an office, an office person who
20 enters subscriptions. And anything else is
21 strictly on a per job basis such as if we hire an
22 artist to design a T-shirt, if we pay a printer to
23 print the magazine.
24 Q. Have you had the same printer for
25 several years?
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2 A. Yes.
3 Q. Who is that?
4 A. Portside Graphics in Port Jefferson,
5 New York.
6 Q. What is the name of your office person?
7 A. Her name is Mary, last name Nixdorf,
8 N-i-x-d-o-r-f.
9 Q. Does 2600 have any function other than
10 issuing 2600, The Hacker Quarterly?
11 A. We publish a magazine. That's what we
12 do. Things happen along the way, such as having
13 2600 meetings, but the magazine is really what we
14 do.
15 Even the web site is something that just
16 evolved. As a result, we make no money off the web
17 site. It's just a project that a bunch of people
18 engage in because they want to become involved in
19 that part of technology.
20 Q. Are there other web sites around the
21 country that are affiliated with you?
22 A. The only web site affiliated with us is
23 our web site and one for the upcoming conference
24 known as h2k.net. It is on the same machine. So
25 it's really the same thing.
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2 Q. Is The Hacker Quarterly put in its
3 entirety on your web site?
4 A. No. The web site is a supplement of the
5 magazine. It's not a duplication of the magazine.
6 Q. Each quarter do you put selected
7 portions of The Hacker Quarterly on your web site?
8 A. I would like to, but unfortunately we
9 don't have the staff to sit around scanning and
10 posting. So right now, no. We would like to in
11 the future.
12 Q. So is it rare that you ever put anything
13 that's in The Hacker Quarterly on your web site?
14 MR. GARBUS: Object to the use of the
15 word "rare."
16 A. I don't think we ever duplicate anything
17 other than the covers on the web site. Not to my
18 recollection.
19 Q. Except in this lawsuit, have you or 2600
20 ever been accused of violating anyone's rights in
21 connection with a hack or in connection with the
22 material that you published? Other than this 1984
23 thing that you testified.
24 A. Do you mean have we gotten letters
25 saying that -- threatening letters from lawyers or
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2 have we actually been brought up on charges?
3 Q. Have you actually been brought up on
4 charges?
5 A. No.
6 Q. Have you gotten threatening letters from
7 lawyers?
8 A. We have gotten a few on occasion.
9 Q. How did you get them?
10 A. They were sent to us in the mail.
11 Q. Do they exist now?
12 A. I am not sure what you mean, do they
13 exist now?
14 Q. Do the letters exist now?
15 A. They might be filed someplace. I don't
16 think I could ever find them. We usually print
17 them. So you can find them in the magazine. But
18 nothing up until this point has ever gotten past
19 the first step of a nasty letter being sent.
20 Q. How many issues of this magazine have
21 been published?
22 A. Well, we have been coming out for I
23 guess eighteen years -- well, no. This is Volume
24 17. So seventeen years. So --
25 Q. Seventeen times four would be the
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2 answer?
3 A. We have been quarterly since 1988.
4 Before then we were monthly. So you'll need a
5 calculator.
6 Q. And is it your testimony that you
7 published all these threatening letters from
8 lawyers in one of these issues?
9 A. If we got a letter that was -- we
10 thought was particularly unjust, yes, it's been our
11 policy to show people the kinds of threats that are
12 being made against us.
13 RQ MR. GOLD: I am going to ask for copies
14 of all back issues of 2600 and any of the
15 lawyer letters that Mr. Goldstein might have
16 around his office or in his files.
17 MR. GARBUS: I will see what we have.
18 MR. HERNSTADT: Can I just clarify?
19 Do you want all back issues that have lawyer
20 letters published?
21 MR. GOLD: No.
22 MR. GARBUS: He wants all back issues
23 and any letters that we have.
24 Is that right, Mr. Gold?
25 MR. GOLD: That's right.
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2 MR. HERNSTADT: We'll take it under
3 advisement.
4 MR. GOLD: Can I have this marked as
5 Exhibit 4.
6 (Plaintiffs' Exhibit 4, copy of
7 plaintiffs' first request for production of
8 documents, marked for identification, as of
9 this date.)
10 MR. GOLD: You can take a minute to
11 look through that. I guess we'll change the
12 tape while he is looking.
13 MR. GARBUS: Mr. Gold, I don't know
14 your schedule. As I said, we would be
15 prepared to work through lunch. Because I
16 know you want to finish the deposition. We
17 would also be prepared working till 5.
18 Again, subject to your convenience. Or even
19 work later in the evening to try and give
20 you as much as you can get.
21 MR. GOLD: As you know, we have
22 advised you that the deposition would be
23 today and tomorrow. I think we'll finish
24 tomorrow. I doubt we'll finish today and I
25 do feel that the judge having called a
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2 conference and been kind enough to put it at
3 the end of the day that I should attend it,
4 since I have been involved in writing a few
5 letters to him. And I think the judge might
6 be interested in talking about one or more
7 of them. I think it would be improper for
8 me not to be there.
9 MR. GARBUS: Do you want to have
10 somebody else take over the deposition?
11 MR. GOLD: No, I will stick with what
12 I noticed for today and tomorrow and trust
13 that I'll finish tomorrow.
14 THE VIDEOGRAPHER: The time is 12:28
15 p.m. This completes tape number 1 of the
16 videotape deposition of Mr. Emmanuel
17 Goldstein.
18 (A recess was taken.)
19 THE VIDEOGRAPHER: The 12:34 p.m.
20 This begins tape number 2 of the videotape
21 deposition of Mr. Emmanuel Goldstein.
22 (Mr. Hernstadt not present.)
23 BY MR. GOLD:
24 Q. Mr. Goldstein, have you seen the
25 document just put before you before today?
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2 A. Yes, I have.
3 Q. When was that?
4 A. I believe it was two weeks ago.
5 Q. Did you understand at that time two
6 weeks ago that it called for the production of
7 documents?
8 A. Yes.
9 Q. Did you make any search for the
10 documents requested?
11 A. Oh, yes.
12 Q. Tell us everything you did to search for
13 the documents requested.
14 A. Well, I searched through a pile of
15 papers in the attic and tried to find as much as I
16 could, contacted my accountant, got together back
17 issues you requested.
18 I think that pretty much covers
19 everything. I also searched the computer system
20 that I am on for any E-mail that may have been
21 there or any logs.
22 Q. Did you throw away or dispose of or take
23 out of your hard drive any documents at all from
24 the time you saw this particular document?
25 A. No.
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2 Q. Did you find anything?
3 A. My webmaster found a couple of logs. I
4 believe he forwarded them to our legal team.
5 As far as on the computer system, I
6 searched, I grepped for DeCSS through my E-mail for
7 anything having to do with DeCSS or DVDs. And
8 there was nothing there.
9 I assume anything I get in the future I
10 am supposed to forward.
11 Q. The documents you found you gave to your
12 counsel?
13 A. Yes.
14 MR. GOLD: Mr. Garbus, do you know if
15 those have been supplied to this office?
16 MR. GARBUS: I don't know. I presume
17 Mr. Hernstadt gave you whatever Mr. Goldstein
18 gave him.
19 MS. MILLER: No, we haven't received
20 any documents from --
21 MR. GARBUS: Then I will find out. It
22 came at a bad time. Hernstadt's gone.
23 Whatever Mr. Goldstein gave us that is
24 appropriate we'll certainly give you.
25 Q. Mr. Goldstein, when did you give these
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2 documents to your lawyer?
3 A. I know my financial records arrived last
4 week from my accountant. As far as the things from
5 the web site, I know our webmaster has been in
6 touch with Marty and Ed, our legal team, on that.
7 And as far as anything else, I don't think there
8 was anything else that I can recall.
9 MR. GARBUS: I had understood we had
10 furnished you with approximately two to 300
11 pages of information that is similar to the
12 information that had been in Mr. Goldstein's
13 affidavit on the motion. I had understood
14 it was going to be sent to you by separate
15 letter. We can check that with Mr. Hernstadt.
16 MS. MILLER: OK, because as of last
17 night no one in this office on the team had
18 received any documents. But I appreciate
19 your checking.
20 MR. GARBUS: OK.
21 Q. Mr. Goldstein, do you know any reason
22 why your attorneys wouldn't have turned these over
23 before today?
24 A. I know that my accountant had been away
25 and hadn't gotten my message until last week, so he
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2 wasn't able to FedEx the documents until late last
3 week. So that might be a reason for that.
4 Also, I brought in the back issues you
5 requested. I brought those in today actually. So
6 that's my fault.
7 Q. Turning to page 7, number 1, what
8 documents do you know exist relating in any way to
9 the 2600 dot-com site?
10 A. I am not sure exactly what documents you
11 had in mind. Again, it was something our webmaster
12 was dealing with.
13 As far as documents that are on the
14 site, we're prepared to give you an entire snapshot
15 of the site, which would be every page that is
16 there.
17 Q. And that would include pages relating to
18 what issues?
19 A. Well, the site is not having to do with
20 the issues. The site is the web site. That would
21 include all these articles ever written on the
22 site. That would include -- well, it couldn't
23 include the radio shows that we have up there
24 because that's an audio format. So I don't know
25 how that would work.
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2 Basically a lot documents relating to
3 this case, a lot of documents not relating to this
4 case. If that's what you want, we can furnish you
5 with those as well.
6 Q. When you saw this document and didn't
7 understand what it meant to ask for all documents
8 concerning the 2600 dot-com site, did you put in a
9 call to your lawyers?
10 A. Yes, I talked to my lawyers. I also
11 talked to my webmaster and told them to work it
12 out.
13 Q. Did your lawyers tell you what it meant?
14 A. I believe so. I believe it was --
15 MR. GARBUS: I will object to any
16 conversations between Mr. Goldstein and his
17 lawyers.
18 MR. GOLD: I don't know that this is --
19 instructions on how he was to make the
20 search I think are not privileged.
21 MR. GARBUS: I think the judge should
22 rule on it.
23 MR. GOLD: You don't know that rule.
24 MR. GARBUS: I think the judge should
25 rule on it. I think we may disagree as to
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2 those conversations.
3 MR. GOLD: Are you saying that those
4 are privileged?
5 MR. GARBUS: I am saying if it was a
6 conversation about documents, then some of
7 it may be privileged. Some of it which is
8 just functional may not be privileged. But
9 there may be privileged conversations within
10 that. I would exert the privilege and then
11 you can get a ruling.
12 MR. GOLD: I am just trying to find
13 out what the witness was told about what
14 documents to produce.
15 MR. GARBUS: I presume he was told to
16 produce everything he could.
17 THE WITNESS: Yes, everything I could
18 on the web site. Except there is one big
19 omission. You say all files made available
20 for download from October 1, 1999. You
21 realize we can't give you DeCSS because
22 that's no longer on our site.
23 Q. You say that when you didn't understand
24 what you were to look for with respect to number 1,
25 you called your lawyers.
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2 A. I don't know if I said I didn't
3 understand. Just that I wanted to make sure that I
4 understood correctly that it was basically a
5 snapshot of the entire -- the entire system, which
6 is no problem at all.
7 Q. Did you give that to your lawyers?
8 A. Again, that's something our webmaster
9 would do because he has much better technical
10 knowledge.
11 MR. GARBUS: The webmaster I presume
12 was told to do it or ask for it.
13 THE WITNESS: Yes.
14 Q. When did you tell your webmaster to
15 produce those documents?
16 A. That was shortly after I got this
17 document.
18 Q. Where are they or have they been
19 produced to your lawyers?
20 A. As far as I know, they have been
21 produced.
22 Q. Those are the approximately 300 pages
23 that you were --
24 A. I don't know if it's 300 pages. It's a
25 lot of pages. I am not sure exactly how many.
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2 Q. I see. So did your lawyer define for
3 you what number 1 --
4 MR. GARBUS: You'll get everything
5 that --
6 MR. GOLD: We're waiting, we're
7 waiting, we're waiting.
8 MR. GARBUS: -- that he can download.
9 MR. GOLD: We gave you over 10,000
10 documents and you complain it isn't enough
11 even though you haven't read a tenth of them
12 and we asked you for a couple of documents
13 and they are not here.
14 MR. GARBUS: Mr. Gold, you have made
15 your record.
16 MR. GOLD: What does that mean?
17 MR. GARBUS: My understanding is
18 that --
19 MR. GOLD: I know what your
20 understanding is and I know what you do.
21 MR. GARBUS: Good, so let's move on.
22 BY MR. GOLD:
23 Q. Did your lawyer give you any description
24 of what you should produce with respect to item
25 number 1?
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2 A. I think I already understood what I had
3 to produce.
4 Q. Then why would you have called him to
5 ask him what it means?
6 A. To clarify that I understood correctly.
7 Q. Did you do that with number 2?
8 A. Number 2?
9 Q. Did you clarify what your understanding
10 of what number 2 was?
11 A. Well, number 2 is documents that grant
12 us the right to copy motion pictures, and I know we
13 don't have documents that tell us we can copy
14 motion pictures. So --
15 Q. So you knew what number 2 was and you
16 didn't have to ask; is that right?
17 A. Well, it's pretty obvious those
18 documents didn't exist.
19 Q. When you knew what 1 meant, and since
20 you knew what it meant, why did you have to ask
21 about it?
22 A. To clarify it, to make sure that -- you
23 wanted a copy of everything on the site and that's
24 what we were going to do, and I was going to ask
25 the webmaster to provide you with that.
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2 You should understand the people on our
3 site are basically in school and sometimes they are
4 not easily reachable.
5 We have tried as hard as we can to get
6 these documents, and we wanted to be thorough. We
7 wanted to make sure we didn't just give you a
8 couple of things. We wanted to make sure you got
9 what you were asking for.
10 Q. So does that mean with respect to number
11 1 you have not yet finished contacting all the
12 people you want to contact?
13 A. There's one person and I contacted that
14 person, that's our webmaster.
15 Q. What about all these people you just
16 referred to who work after school?
17 A. I am saying people who I am in contact
18 with, and the webmaster is one of them, they don't
19 have full-time jobs with our site. So I have to
20 find where they are. I have to E-mail them. It
21 might be a couple of days before they get back to
22 me sometimes, but it is our intention to get you
23 every document you asked for.
24 Q. Have you already done that?
25 A. As far as I know, that has already been
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2 submitted. As far as I know.
3 Q. To?
4 A. It's -- I believe it's been E-mailed
5 over to the legal team.
6 Q. Your legal team.
7 A. Yes.
8 Q. Who is on your legal team other than
9 Mr. Garbus and Mr. Hernstadt?
10 A. Those are the two names I know. I know
11 there are more people working on the case.
12 Q. Is it true that 3 would have been a part
13 of number 1, that you have already produced?
14 A. Yes. That's something that I would have
15 immediate control over because you were asking
16 within my possession, and so I did that, that
17 search on my system where I get my E-mail.
18 Q. It would relate to you or the company, I
19 gather.
20 A. Right.
21 Q. And you searched for any possible
22 documents --
23 A. I searched throughout my E-mail.
24 Q. -- that belong to the company.
25 A. If you mean did I search other people's
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2 E-mail, that doesn't belong to the company.
3 Q. What does the word "other people" mean
4 in that?
5 A. The system, 2600 dot-com, is what's
6 known as shell machine. It is used by people who
7 write articles for the magazine. It is used by
8 people who are affiliated one way or another,
9 whether they, you know, they do covers, they're
10 artists, they're writers. They help us out in some
11 way technically. And they each have an account on
12 the machine and they receive E-mail there. They
13 have their files this.
14 And it is not our position to claim
15 ownership over those files, over that E-mail. I
16 know many companies do claim ownership. We just
17 don't subscribe to that philosophy.
18 So the way I took number 3 to mean is
19 that I should look through my possessions, my
20 E-mail, my files for anything having to do with the
21 DeCSS, which is what I did.
22 Q. Can you name the people that you
23 referred to?
24 A. Not all of them.
25 Q. Name as many as you can, sir.
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2 A. We're talking several dozen people here.
3 Q. Take a shot.
4 A. I can give you user names of people, but
5 I can't place names to them. Is that enough for
6 you? Because the way --
7 Q. What's the user name?
8 A. A user name is what you log in as. For
9 instance, my user name is Emmanuel.
10 Q. Why don't people use their real names?
11 A. Well, for one thing, the way the system
12 is set up you can't type in a full name. The way
13 the Net works, people choose handles, and basically
14 it's your identity on that particular computer
15 system. You may choose a different identity on a
16 different system. You may use the same identity
17 everywhere. You may use your real name. People do
18 a lot of mixing and matching.
19 What I would be happy to do is give you
20 a user list on our system. That's not what you
21 asked for. So I didn't provide that. But if
22 that's what you want, I will happily give you
23 that.
24 RQ Q. Thank you. We are requesting it.
25 A. Sure.
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2 Q. And all those names would be on that
3 list?
4 A. The names of the log-in. You have to
5 understand, I don't even know a lot of people's
6 names. I don't need to know. I don't ask.
7 But what I can give you is -- this
8 sounds like something it's not, but I can give you
9 our password file, which basically is a list of all
10 of our users. It doesn't contain the password. It
11 contains the encrypted password, which is a good
12 form of encryption, I believe.
13 MR. GARBUS: I will take this under
14 advisement. It seems to me a press issue
15 here as to exactly what he is turning over
16 and whether a member of the press should be
17 required to turn this over.
18 I will just take it under advisement.
19 I haven't thought out the ramifications of
20 it.
21 Q. The part-time people that work for 2600
22 and who go to school during the day, how many of
23 them are there?
24 A. Well, there are lots of people. I
25 wouldn't say they are part-time employees or
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2 employees in any sense. They are volunteers,
3 people who help out whatever way they can. Whether
4 it's writing an occasional article or submitting
5 something of interest to us or advising us in some
6 way.
7 They're people from all different age
8 groups, all different parts of the world. It's
9 impossible, and I don't think desirable, to know
10 exactly who they are or where they are, what their
11 Social Security number is. It's not what we're
12 about.
13 Q. Do you pay any of them?
14 A. The only people we pay are the office
15 staff and the people who do things like design
16 covers or print the magazine.
17 Q. All the office staff consists of one
18 person?
19 A. One person, yes.
20 Q. So you don't pay any of these part-time
21 people.
22 A. No, we don't consider them part-time
23 people. We consider them volunteers that do what
24 they can when they can.
25 Q. Do any of the volunteers live in the
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2 greater New York area?
3 A. It's possible. I mean, I imagine so.
4 Q. Do you have these volunteers listed
5 somewhere, however you list them?
6 A. We have a staff list which we put in the
7 front of the magazine, and that lists writers --
8 yes, you can get a pretty good sense of who
9 volunteers though, what they do.
10 Q. That would constitute in any one issue
11 about what percentage of the volunteers?
12 A. Actually that's probably more than the
13 people who volunteer that particular time. I mean,
14 at any one time -- for instance, we have a
15 conference coming up in a month. We have a few
16 dozen people who are going to be working different
17 things, whether it be hooking up a network over
18 there, running security, doing various other things
19 that you have to do when there's a conference.
20 Nobody is getting paid to do this. It's something
21 they all want to do.
22 That's something that happens at this
23 particular time because we're doing a conference.
24 What happens in the fall will be completely
25 different. We'll have people who write articles,
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2 people who, you know, who submit various things to
3 the magazine, people who let us know what's going
4 on, tip us off on a story.
5 Q. And the names of every one of these
6 people is listed in at least one issue of your
7 magazine.
8 A. The names they want to go by, yes. We
9 don't require that they give us their real names or
10 that we even know who they really are. It's not
11 our place.
12 Q. Why not?
13 A. We're a magazine. We print information
14 and that's where we draw the line. I mean, if
15 somebody wants to be, you know, known to us, then
16 they will introduce themselves to us. But we're
17 not going to force our way into people's lives and
18 demand to know who they are.
19 Q. The New York Times and Sacramento
20 Journal and all other publications that I know
21 about know who works for them. They have their
22 names. Why wouldn't you?
23 A. We're not The New York Times. We're a
24 magazine dealing with technological issues. Lots
25 of times articles are written by kids, by people
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2 from other countries. We don't run our operation
3 the same way as The New York Times or as many
4 newspapers or magazines. We --
5 Q. What if they -- I am sorry. Did I cut
6 you off?
7 A. We allow people to use what I described
8 before as handles, which is basically you make up
9 your own name. You define yourself. And that's
10 perfectly OK with us.
11 A newspaper like The New York Times,
12 obviously they want your real name because they're
13 paying you. They have to have all your
14 documentation, your Social Security number, all
15 that kind of thing, and that's, you know, that's
16 perfectly OK, but that's not what we do.
17 Q. Well, some of these no-named or
18 fictitious-named people that volunteer write
19 articles, don't they?
20 A. Yes, some people do.
21 Q. And wouldn't you want to know how to
22 find them in case you had a problem because they
23 printed something that was a total lie?
24 A. Well, for someone who writes more than
25 one article we gave them an E-mail address in our
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2 system. So that's how we contact them.
3 Q. And you have a list of those E-mail
4 addresses.
5 A. That's what I was describing before.
6 Q. Can you provide those to us?
7 A. I can provide you with the list of the
8 users on our system, yes.
9 Q. You say you're not interested in the
10 name of anyone who just writes one article for you.
11 MR. GARBUS: That isn't what he said.
12 MR. GOLD: I see.
13 Q. Is that true or false?
14 A. I am not interested in anybody's real
15 name. It's not relevant to what I do. We have
16 people who write letters to the editor and, you
17 know, we don't consider them staff people, but it's
18 something that appears in the magazine as well.
19 Q. Other than letters to the editor, if
20 someone writes a story for you that you print, but
21 they only write one, you don't want anything from
22 them, any way of finding them or contacting them.
23 A. Other than the E-mail address, there's
24 no need. We give people who write to us a free
25 subscription. So that's basically what we do.
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2 Q. So a one-time author, he is lost
3 forever.
4 A. If he doesn't write to us again, yes.
5 Q. Isn't it true that you print the names
6 of people who write letters to the editor?
7 A. We print whatever name they sign. So
8 it's very rare you'll see somebody's real name
9 signed to a letter.
10 Q. That's sent to your publication.
11 A. Right.
12 Q. Do you have any standard procedures you
13 use to check on the truth of articles that you
14 write in your publication?
15 A. Yes. We -- it depends on the article.
16 I mean, there are many different things, but we'll
17 test things out. We'll make sure that the person
18 knows something of what they are talking about,
19 that the system that they are describing really
20 exists, that the theories they are talking about
21 seem to make some sort of sense. It is different
22 with every article.
23 Q. You don't check outside sources, just
24 the writer?
25 MR. GARBUS: Objection.
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2 A. I am not sure what you mean.
3 Q. In terms of your diligence when you're
4 about to print an article, do you do any checking
5 other than with the person who wrote that?
6 A. Oh, of course. To see if they are
7 describing particular computer operating systems,
8 of course we check to see if the operating system
9 exists. We check to see if what they are
10 describing -- many times what people write is
11 theoretical in nature. So we check to see if the
12 theory seems to be a valid theory. Not necessarily
13 whether it will work, but whether it's conceivable.
14 Q. Have you written articles about any of
15 the plaintiffs in the last six months?
16 A. Other than ourselves?
17 Q. Have any articles or writing appeared in
18 2600 about any of the plaintiffs?
19 A. The editorial is what, um, and some
20 letters to the editor.
21 Q. Have you ever checked with any of the
22 plaintiffs about anything you wrote?
23 A. I am not sure what you mean.
24 MR. GARBUS: Object to form.
25 Q. Did you ever call them up?
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2 MR. GARBUS: Whether you check with
3 the MPAA and ask --
4 MR. GOLD: No, I didn't say the MPA.
5 I said any of the plaintiffs.
6 A. Well, what I write is an opinion piece.
7 So --
8 Q. You don't check.
9 A. I don't think I have to check with
10 somebody if I write an opinion piece.
11 Q. Does your opinion piece ever contain any
12 statements of facts?
13 A. It contains my interpretation.
14 Q. Of statements of fact?
15 A. My interpretation of facts, yes.
16 Q. And you believe that they're right?
17 A. My opinion that they are right.
18 Q. Did you ever try to contact any of the
19 movie studios or MPAA about any of the statements
20 you have written in the last year?
21 A. I haven't been writing about the MPAA
22 for a year. Only since they filed suit against us.
23 I don't think it is appropriate for me to be
24 contacting them if they filed suit against me.
25 Q. Who told you that?
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2 A. That's my opinion.
3 Q. So the answer to my question is no?
4 A. Have I contacted them? No.
5 MR. GOLD: Simple. Truth is simple.
6 OK. Have a nice lunch.
7 THE VIDEOGRAPHER: The time is 12:57
8 p.m. we're going off the record.
9 (A luncheon recess was taken at
10 12:57 p.m.)
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2 A F T E R N O O N S E S S I O N
3 (Time noted: 2:08 p.m.)
4 THE VIDEOGRAPHER: The time is 2:08 p.m.
5 We're back on the record.
6 MR. GARBUS: Mr. Gold, let me tell
7 you, I had checked during the intermission.
8 My recollection that we had furnished you
9 with material that comes within point 1 was
10 accurate; namely, that in the affidavit of
11 Emmanuel Goldstein that had been submitted
12 on the motion, we had furnished you, as I
13 understand it, with all documents concerning
14 the 2600 web site as it existed since I
15 think about November 12th.
16 With respect to the other information,
17 we are still trying to get that for you.
18 But my understanding is that that information
19 had been furnished to you a good while ago.
20 MR. GOLD: As an exhibit in
21 Mr. Corley's affidavit?
22 MR. GARBUS: Yes, yes.
23 MR. GOLD: Well, we have that.
24 MR. GARBUS: What I am saying is that
25 has been furnished to you. My understanding
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2 is --
3 MR. GOLD: And this is a room with a
4 table also, but now what about all the
5 documents that the witness gave to you that
6 he said that you said you hadn't produced
7 or that we said you hadn't produced?
8 MR. GARBUS: Mr. Hernstadt as I
9 understood has furnished it to you and
10 you'll presumably get it by today or
11 tomorrow.
12 MR. GOLD: Do you know why it hasn't
13 been produced for the last week?
14 MR. GARBUS: I presume because
15 Mr. Hernstadt has been busy doing other
16 things.
17 MR. GOLD: Instead of producing
18 documents to us. Yes, I would guess that
19 too. I just didn't understand what your
20 statement had to do with the fact that you
21 hadn't produced the documents we were
22 talking about.
23 MR. GARBUS: Because you have to
24 understand that you have 90 percent of the
25 documents.
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2 MR. GOLD: How do you know? You have
3 never seen them, have you?
4 MR. GARBUS: Of course I have.
5 RQ MR. GOLD: Mr. Garbus, we would like to
6 hire an expert and get expert to the
7 witness's hard drive --
8 MR. GARBUS: I will take it under
9 advisement.
10 MR. GOLD: -- for the expert to
11 download certain things that Mr. Goldstein
12 says he can't download.
13 MR. GARBUS: I will take it under
14 advisement.
15 MR. GOLD: When will you tell us?
16 Because I would like to know tomorrow.
17 MR. GARBUS: I will try to tell you
18 tomorrow.
19 MR. GOLD: OK.
20 In doing that, we would only ask for
21 the production of whatever relates to DeCSS
22 and CSS.
23 MR. GARBUS: So if there's nothing on
24 the hard drive that relates to either of
25 those two things, we don't have an issue.
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2 So the first question is whether or not --
3 MR. GOLD: What does that mean we
4 don't have an issue?
5 MR. GARBUS: In other words, let's
6 assume there's nothing on his hard drive.
7 MR. GOLD: We won't know until we get
8 an expert in to --
9 MR. GARBUS: In other words, you won't
10 take his representation that there's nothing
11 on his hard drive that relates to CSS or
12 DeCSS and may contain other information,
13 some of which you clearly ought not to see.
14 MR. GOLD: He hasn't got any idea what
15 is on the hard drive. He was trying to
16 search it.
17 MR. GARBUS: First, we have to
18 determine what is on the hard drive.
19 MR. GOLD: He said he couldn't do
20 that. You weren't here this morning.
21 MR. GARBUS: No, I was here this
22 morning.
23 MR. GOLD: Well, I mean actually.
24 MR. GARBUS: We will take your request
25 under advisement.
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2 MR. GOLD: What your witness has
3 testified, if you were here, was that he
4 didn't feel he could pull down --
5 MR. GARBUS: Can't you contain
6 yourself, Mr. Gold? Go ahead.
7 MR. GOLD: That is a funny question.
8 I join in your laughter. Do you want to
9 weigh how much time you took up today
10 against how much time I am taking up now?
11 MR. GARBUS: Go ahead, Mr. Gold.
12 MR. GOLD: Your witness as you know
13 testified this morning that he didn't think
14 he could pull anything down from his hard
15 drive, that he had tried before and couldn't
16 do it, that it wasn't set up in order to do
17 that.
18 I found that surprising in light of
19 what I read in the papers all the time about
20 other people's hard drives, but I am not a
21 hard drive expert. So he said that he
22 didn't think it could be done. And he was
23 trying to do it. We want to get somebody in
24 to actually see if that's true and whether
25 he can get something.
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2 MR. GARBUS: We'll take it under
3 advisement.
4 THE WITNESS: Can I say something at
5 this point? I get maybe a thousand pieces
6 of E-mail a day. I am not quite sure how
7 somebody is going to go through all the
8 deleted mail, which has probably been
9 overwritten by new material since then over
10 the past several months, and track that. I
11 mean, it's not possible. If it were
12 possible it would take you years, but I
13 don't think it's possible at all.
14 MR. GOLD: Well, we'll take a crack at
15 it, if you permit us to. That's an
16 unfortunate word. We'll take a shot at it
17 and we'll see if that's right, and if
18 there's anything that he can get out that's
19 relevant, he or she, then we'll ask for its
20 production.
21 MR. GARBUS: As I said, I will take it
22 under advisement. I will try and make a
23 determination. If I can make a
24 determination by tomorrow, I will tell you.
25 If we require something more than that, I
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2 will also tell you.
3 MR. GOLD: OK, well, I hope we get it
4 from you tomorrow.
5 E M M A N U E L G O L D S T E I N , resumed and
6 testified as follows:
7 EXAMINATION BY (Cont'd.)
8 MR. GOLD:
9 Q. Now, I take it that all of the material
10 you attached to one of your affidavits was material
11 relating to sites that 2600 was linking to, not
12 material related to 2600.
13 MR. GARBUS: That's wrong.
14 A. I don't believe so.
15 MR. GARBUS: I assume you're familiar
16 with the affidavits we submitted in the
17 case. That's wrong.
18 MR. GOLD: Paragraph 5 of your
19 June 14th declaration says: As I stated in
20 my previous declaration in support of this
21 motion, the sites containing DeCSS, mirrors
22 to which we currently link, are very diverse
23 in nature. In particular, many of these
24 sites provide a variety of legitimate
25 information concerning topics related to
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2 this case and DeCSS. I know that's more
3 than just mirrors setting forth the DeCSS
4 code. Annexed hereto as Exhibit C are
5 copies of the first page of the newer sites
6 currently listed on 2600.
7 A. Uh-huh. That's a list. Not the entire
8 site. That's a list of the sites.
9 Q. But what we have in that bulky exhibit
10 are copies taken from those sites that you link to,
11 right?
12 A. I am not sure. I haven't --
13 MR. GOLD: This is what Mr. Garbus must
14 be talking of. It may be yet again that he
15 has committed an error.
16 MR. GARBUS: In other words, are there
17 anything here from you or is it just from
18 the newer sites?
19 THE WITNESS: Those are different
20 sites. There's a list -- yes, these are by
21 samples from other sites.
22 MR. GOLD: Et bien, what do you say
23 now?
24 MR. GARBUS: If I am in error, then
25 I'm in error. In other words, if you're
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2 telling me that we didn't give him that,
3 then we should certainly give you that. I
4 had understood we had given that to you.
5 THE WITNESS: This looks like an
6 indication that the sites are diverse in
7 nature and have all kinds of other material
8 in addition to DeCSS. I think that's the
9 point of submitting this.
10 MR. GARBUS: Right.
11 MS. MILLER: Was there another stack
12 of documents you were talking about that was
13 attached in --
14 MR. GARBUS: I thought there was. I
15 had thought I had seen a set of documents
16 which were everything that we had done from
17 October -- not October, from let's say
18 November until now. When I say everything,
19 I mean some of the 2600 editorials.
20 THE WITNESS: Actually, I see it over
21 there. That stack right there, those are
22 our editorials. That's what we would have
23 given you. It's really not that much. It's
24 everything we've written on the web site
25 from November until now.
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2 MR. GARBUS: I thought we had given
3 that to you. If I'm in error, you'll
4 certainly get it.
5 Q. Can you state for the record, perhaps
6 again, what it is you think you've given us?
7 MR. GARBUS: Be specific. You have
8 seen this. If I am an error or if they
9 haven't received it, don't give them that.
10 Just describe what's in this package.
11 MR. GOLD: Is it all right if I ask
12 the questions and without direction to the
13 witness?
14 MR. GARBUS: But you're misleading the
15 witness, Mr. Gold.
16 MR. GOLD: You know how to object.
17 And you shouldn't tell the witness what to
18 say. You really shouldn't.
19 MR. GARBUS: Mr. Gold, please.
20 Contain yourself.
21 A. As far as I know, obviously we gave
22 you this, which is a description of other --
23 Q. Did you give us that? Do you know that?
24 A. From what you told me today, yes.
25 Q. You have it in front of you. Did you
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2 give it to us?
3 A. I remember we went through to find
4 samples of other sites, but this was quite some
5 time ago. So this was a couple of months ago.
6 I also know that we have gone through
7 every single news item that we have written on the
8 sites and I presume that was submitted to you as
9 well.
10 Q. By whom?
11 A. By our lawyers.
12 Q. When did you give those to your lawyers?
13 A. I think we have gone through those
14 several times actually. I mean --
15 Q. I don't know who the "we" is, sir.
16 A. Me, my lawyers, our webmaster.
17 Q. Have gone through the stuff you wrote
18 for your web site.
19 A. The news items on the web site, yes.
20 Q. The ones you wrote?
21 A. The ones I had written and the ones that
22 are written by other people as well.
23 Q. So you say there was a group of -- stack
24 of papers that are taken -- of pictures taken from
25 your or copies taken from your web site.
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2 A. They're basically just articles, yes.
3 Q. Were taken from the web site and they're
4 articles or editorials that you have written.
5 A. Yes.
6 Q. And then you gave them to your lawyers,
7 that stack; is that true?
8 A. We either gave it to them or we told
9 them exactly how it's -- how to print them out. I
10 mean, anybody can do this. You just go to the web
11 site and print.
12 Q. Then I take it you're not sure you gave
13 them this stack?
14 A. There have been so many papers floating
15 around, I don't know if those are the ones that I
16 handed to them or if I just said this is how you
17 print them out. But I know we've been over this.
18 MR. GARBUS: Mr. Gold, let me just say
19 one thing. Anybody can just go to the site
20 and download it. My memory is that
21 Mr. Goldstein told us how to do it. We did
22 it and I thought we had given those
23 documents to you. If we have not, you'll
24 get it. They're available to anybody who
25 wants to get it.
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2 THE WITNESS: I see them here though.
3 Either we gave them to you or you printed
4 them out yourself. So I am not quite sure.
5 MS. MILLER: Some of them we printed
6 ourselves.
7 Q. But you don't remember -- I take it that
8 you gave us that of those stories or editorials to
9 your lawyer.
10 A. I know we have gone through it at some
11 point. And I am fairly certain that all the papers
12 have been submitted that we're supposed to submit.
13 I can't give you a time and date of every single
14 one we did.
15 Q. Why are you so certain?
16 A. Because I have been going through this
17 for quite some time.
18 Q. Why does that mean they were given to us
19 if you sat and went through them?
20 MR. GARBUS: I will object. This is
21 totally unnecessary. I will direct the
22 witness not to answer.
23 MR. GOLD: You don't want to let him
24 answer any more questions about the
25 production?
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2 MR. GARBUS: No, I'm not going to let
3 him answer that question. It's badgering
4 him. He said he gave the papers to us.
5 What happens, whether the papers go from us
6 to you or not, it's not something he should
7 be badgered over.
8 What I am telling you is that it's my
9 understanding we gave it to you. It's also
10 totally on the public record. It's not
11 anything that's being withheld, and you have
12 indicated that you have some of those
13 documents. Anybody can download it.
14 Q. Are all those documents downloadable now
15 or are some of them lost?
16 A. No, we don't erase anything on our site,
17 that's on the web site.
18 Q. What about E-mail? That's not on the --
19 A. E-mail is not on the web site.
20 MR. GOLD: I gather, Mr. Garbus, you
21 don't know whether those documents were
22 given to us personally.
23 MR. GARBUS: My understanding is they
24 were. But I could be wrong. If I am wrong,
25 you will get the documents. But they are
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2 public knowledge. Anybody can get them.
3 Nothing has been withheld from you.
4 Q. Turning to item number 8, did you search
5 for those documents?
6 A. Yes, this is the E-mail that I grepped
7 through for any mention of these words.
8 Q. Where did you look for them?
9 A. On my home system, 2600 dot-com. But I
10 should point out, I as a rule don't save mail. It
11 clogs up the system.
12 As far as chat rooms, I never save
13 anything from chat rooms. That's gone as soon as
14 it's sent and that doesn't even get saved to hard
15 drive, ever.
16 Q. Do I take it you looked through every
17 one of these 14 -- make it, sorry, 26 categories
18 and made, I'm sorry, there are 31 at page 12. You
19 have looked through all of these 31 requests?
20 A. Yes.
21 Q. And made searches for everything within
22 them.
23 A. Yes.
24 Q. And they would either be on your
25 computer or in a stack of papers in your basement.
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2 A. Yes, attic. Either there or on the
3 computer or just not in existence.
4 Q. How high is that stack of papers in your
5 basement?
6 A. It's pretty formidable.
7 Q. Three feet or ten feet?
8 A. It's more like mail bags filled with
9 information. And it's basically old financial
10 records, things like that. It's all pretty well
11 labeled, so I have no trouble finding -- I have no
12 trouble finding old financial records.
13 Q. Each document there is labeled?
14 A. Well, we put them in envelopes and label
15 what they are. Some would say, you know, tax
16 return from this particular year. That's where you
17 find it.
18 Q. What are the other categories?
19 A. Basically subscriber E-mail -- not
20 E-mail, subscriber mail. People who send mail to
21 us wanting to subscribe. We save that. Our bills,
22 bills that we paid, things like that.
23 Q. What other things were there?
24 A. That's about it. There's an awful lot
25 of it that accumulates over the years.
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1 Goldstein
2 Q. So you say some old E-mails.
3 A. No, not E-mails, just mail. Paper mail
4 that gets sent to us. Someone writes us and says
5 they want to subscribe. We save that in case
6 they -- we need to access it in the future.
7 Q. What is the Electronic Frontier
8 Foundation?
9 A. EFF is an organization that basically
10 keeps an eye on the various laws being passed that
11 affect electronic liberty and freedom and that kind
12 of thing. That spark their interest.
13 Q. What does electronic freedom mean?
14 A. What's my opinion?
15 Q. When you use it, yes.
16 A. Basically having the same rights on the
17 Net as you have in real life off the Net. And also
18 keeping an eye out for privacy invasions by
19 whatever powers that be.
20 Q. Does it relate to any rights you have
21 with respect to DVDs?
22 A. They saw the --
23 MR. GARBUS: Object to the form of the
24 question.
25 A. They saw the lawsuit against us as
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2 something that they wanted to challenge.
3 Q. They saw? Who is "they"?
4 A. EFF.
5 Q. I think you said the Electronic Frontier
6 Foundation --
7 A. Right.
8 Q. -- supports having the same freedom on
9 the Internet one has in real life; is that correct?
10 A. Well, that's my interpretation. I am
11 not quoting them saying that.
12 Q. I just want to make sure I didn't
13 misquote you.
14 A. But that's what I believe.
15 Q. And does that relate to DVDs I asked
16 you. Can you answer that yes or no and then
17 explain it?
18 A. Yes, in this case because the whole
19 concept of fair use, the whole concept of being
20 able to engage in free speech, it's related to this
21 whole DVD issue.
22 Q. What speech is being attacked?
23 MR. GARBUS: I will object to the form
24 of the question.
25 A. Speech in the form of source code,
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2 speech in the form of being able to communicate
3 openly about encryption and to compare techniques
4 of encryption. That's basically it that relates to
5 speech.
6 Q. Did you have any communication you
7 received from Roman Kazan or Shawn Reimerdes?
8 A. No. I mean, I spoke to Roman Kazan in
9 person at the Linux Expo in I believe it was
10 January, and the other person I have never met.
11 Q. What did you talk to him about?
12 A. Well, I hadn't seen him in a while. So
13 we talked about a bunch of things. He was a friend
14 of mine from years ago.
15 He runs an Internet service provider.
16 Basically he has a lot of customers that use his
17 system, and he was just very worried about having
18 to deal with a lawsuit and having to expose his
19 subscribers to that. And that's eventually why he
20 dropped out of the case.
21 Q. Now, the stacks of paper in your
22 basement, you said many of them related to
23 financial information?
24 A. Attic, yes.
25 Q. In the attic, I'm sorry.
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1 Goldstein
2 A. Just, you know, tax returns. A lot of
3 stuff that my accountant already has and has better
4 copies of. Receipts, things like that. You know,
5 I like to save things.
6 Q. Turning to 26 in that document, sir,
7 page 11. Did you understand that to ask you to
8 produce all your financial records?
9 A. Yes, and that has all been produced.
10 Q. It has all been produced to you.
11 MR. GARBUS: It has been produced to
12 us.
13 MR. GOLD: I didn't ask for your
14 understanding. I am asking your witness.
15 MR. GARBUS: Mr. Gold, just stop it.
16 MR. GOLD: Not you.
17 MR. GARBUS: Just stop it.
18 MR. GOLD: Don't answer questions for
19 your witness, Mr. Garbus. Thank you.
20 Q. What is your answer?
21 A. They were produced to our attorneys,
22 yes.
23 Q. Where are they now?
24 A. I imagine they are still there. They
25 were produced late last week.
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2 Q. You have taken them all out of the
3 stack?
4 A. No. Actually I verified that my
5 accountant had better copies of that. I figured
6 those are the ones you wanted.
7 Q. Your accountant sent them to your
8 lawyers or --
9 A. I contacted our accountant and he
10 FedEx'd them I believe last Thursday. So they
11 should have received it on Friday.
12 MR. GOLD: You haven't turned those
13 over, have you, Mr. Garbus?
14 MR. GARBUS: I would have to speak to
15 Mr. Hernstadt.
16 MR. GOLD: You don't know.
17 MR. GARBUS: I don't know.
18 A. I know at the time my attorneys were
19 in California. So that probably accounts for any
20 delay.
21 Q. If you turn to page 9 of the document,
22 Mr. Goldstein, number 14 at the bottom. Did you
23 understand what that called for?
24 A. Yes.
25 Q. What was your understanding?
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1 Goldstein
2 A. Those are log files. Those are files
3 that basically show who hits your web site, how
4 often, what pages they look at. I talked to my
5 webmaster about it. And since, um, I believe it's
6 since last summer we haven't kept log files. I
7 know he found a couple of test log files that he
8 ran, I believe it was sometime this spring.
9 But we had a problem with -- we had so
10 many hits coming in that it caused problems with
11 our site. Because what you do with log files is
12 you go through them all and you come up with
13 percentages. You say this many people from this
14 kind of a site hit this particular page. We did
15 this once a week on Sunday nights.
16 It turned out that what happened on
17 Sunday nights, there was so much activity and these
18 files became so big, that our system would crash.
19 And after a while visitors to our site from years
20 ago remember that we had a counter on the front
21 page that says how many people had gone to the
22 front page. Every time that system crashed that
23 number would go back to number 1. And it got kind
24 of embarrassing after a while that our large number
25 was always going down to 1.
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1 Goldstein
2 So we just said enough, it's not worth
3 it. Let's just stop. Because we have a lot of
4 people visiting the site. That's what's important,
5 and the logs don't really matter that much. And
6 they really don't. Because we don't care who is
7 visiting our site. We don't care what they're
8 looking at. Obviously people are visiting the
9 site. That's all that really matters.
10 Plus we just don't have the staff to
11 deal with this. If we were a big company, we had a
12 lot of people, we could give somebody the job of
13 watching over the logs and making sure the machine
14 doesn't crash. But basically we're talking about
15 two people running this thing.
16 Q. You mentioned your webmaster took two
17 tests, something or other?
18 A. Test log files.
19 Q. Test log files. And where are those?
20 A. I believe he submitted those.
21 Q. To?
22 A. To our attorneys. I believe they were
23 submitted late last week, maybe even early this
24 week. I had a little bit of trouble getting hold
25 of him. But I know he did submit them.
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1 Goldstein
2 Q. You submitted the originals and not
3 copies?
4 A. You can't really do that. It's a file.
5 So he sent a copy of the file to our attorneys.
6 Yes.
7 MR. GOLD: Mr. Garbus, have you turned
8 those over to us yet?
9 MR. GARBUS: I would have to speak to
10 Mr. Hernstadt.
11 MR. GOLD: Because if you have, we
12 don't know about it.
13 By the way, I did want to mention on
14 the record, since we had put so much on the
15 record earlier on this subject, you at
16 several times made an offer to continue the
17 deposition today for the rest of the
18 afternoon while some of us went to court,
19 and I said I thought that I had to be in
20 court, which I still think I have to be.
21 But I did say after a bit that we could do
22 that. But you have changed your mind, I
23 gather. You don't want to do that.
24 MR. GARBUS: What I determined was
25 that issues came up this morning that if
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2 Mr. Hernstadt did not know about he would be
3 at a disadvantage, so he ought to be there.
4 In exchange for that I had suggested that we
5 start early tomorrow morning so that if
6 we've lost two hours Mr. Goldstein and I
7 would be prepared to start at 8 o'clock
8 tomorrow morning or 7:30 to make up for the
9 lost hours this afternoon. And you
10 indicated to me you could not do that.
11 MR. GOLD: Do you remember that
12 Mr. Hernstadt was here all morning?
13 MR. GARBUS: Yes, he was here all
14 morning. He left when he had to prepare his
15 argument for court this afternoon.
16 MR. GOLD: So what came up this
17 morning that he wouldn't know about?
18 MR. GARBUS: What came up this morning
19 that he would not know about is the whole
20 question of what documents were produced and
21 what questions were not produced.
22 In other words, your discussion
23 basically of this document, Plaintiffs'
24 First Request for Production of Documents,
25 which has fundamentally been in
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2 Mr. Hernstadt's hand, came up after
3 Mr. Hernstadt left.
4 And you were making all kinds of
5 implications about what Mr. Hernstadt did do
6 or didn't do, and he should have knowledge --
7 MR. GOLD: I am very capable of saying
8 precisely what each of you have done if I
9 knew. And you won't have any questions
10 about that if I actually have evidence that
11 something untoward took place. You will
12 know that I am making that claim. You won't
13 have to repute it.
14 MR. GARBUS: Mr. Gold, this is kid
15 stuff. It's just posturing.
16 MR. GOLD: What options does one have
17 with you?
18 MR. GARBUS: One always has the option
19 to be above it.
20 MR. GOLD: I am going to ask you,
21 Mr. Garbus, to specifically represent
22 whether you're going to turn those documents
23 that may not have been turned over to us
24 over to us tomorrow.
25 MR. GARBUS: I will take it under
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2 advisement.
3 MR. GOLD: You won't tell me that you
4 will?
5 MR. GARBUS: No, of course. I will
6 turn over to you, and I thought I made it
7 very clear, any document that comes within
8 the ambit of this request. You have asked
9 for documents going back -- I will just go
10 down through it. We will give you
11 absolutely everything --
12 MR. GOLD: When?
13 MR. GARBUS: As soon as we can get it.
14 Now, to the extent --
15 MR. GOLD: Not tomorrow.
16 MR. GARBUS: No, no. To the extent
17 Mr. Hernstadt has it, you will get
18 everything by 9 o'clock or 10 o'clock
19 tomorrow before the deposition starts.
20 MR. GOLD: Gee, I understand that.
21 Thank you.
22 MR. GARBUS: To the extent that we
23 leave court early, you can get everything
24 that Mr. Hernstadt has by 6 o'clock.
25 MR. GOLD: I understand that also.
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2 MR. GARBUS: This evening.
3 MR. GOLD: And thank you.
4 MR. GARBUS: So that if we get out of
5 court at 5 o'clock, I would hope that
6 Mr. Hernstadt would come back to the office.
7 I do not know whether these documents are
8 Bates stamped or not. All the documents
9 that the witness has referred to I presume
10 arrived while we were in California during
11 doing the deposition of Mr. Hoy. I don't
12 know whether they have been Bates stamped or
13 not, but we'll make every attempt to Bates
14 stamp them and get them to you as soon as
15 feasibly possible.
16 MR. GOLD: So maybe not tomorrow.
17 MR. GARBUS: Oh, no. The question is
18 whether we get it to you tonight at 6, but
19 certainly by tomorrow morning. To the
20 extent that we have them.
21 Now, my understanding is, I don't know
22 whether we have, given the breadth of your
23 requests, all of the documents that you're
24 referring to, but we will give to you
25 everything that we have. Anything that came
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2 from Mr. Goldstein to us, we will make sure
3 that you have.
4 Again, my understanding being that in
5 the previous motions we supplied you with
6 about 200 pages or 300 pages of the exact
7 same material you're seeking, including
8 those documents which Mr. Goldstein referred
9 to in his affidavit which you have on the
10 table and also the articles and editorials
11 that were written at 2600 dot-com, some of
12 which you have already used in a
13 cross-examination of Mr. Goldstein. We have
14 also given you, as I understand it, copies
15 of The Hackers Quarterly sometime before
16 today.
17 MR. GOLD: Is that one or two
18 sentences?
19 MR. GARBUS: I stated it as one
20 sentence without commas.
21 MR. GOLD: Thank you.
22 BY MR. GOLD:
23 Q. Mr. Goldstein, what hacks to your
24 knowledge has 2600 ever reported on?
25 A. I am not sure what you mean by hacks.
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2 Q. You don't know what a hack is?
3 MR. GARBUS: You define it differently
4 than he, Mr. Gold.
5 Q. How do you understand a hack?
6 A. There's all kinds of definitions. If
7 you would be a little more specific, I can --
8 Q. I will try, sir. Has 2600 ever reported
9 on a circumstance where a corporate or personal
10 computer site was gotten into by any individual?
11 A. Are we talking about a web page being
12 hacked?
13 Q. Yes, to begin with.
14 A. Yes, we have reported on web pages being
15 hacked.
16 Q. Tell me which of those you remember.
17 A. Gosh. Well, let's see. There are a lot
18 of Chinese web pages that got hacked. I remember
19 the Department of Justice was hacked a while ago.
20 NASA gets hacked every few months.
21 Basically quite a few companies that are
22 on the Net get hacked. That means it's almost a
23 right of passage. What we do, actually, we haven't
24 done it in a while, because we just don't have the
25 staff to keep up with it. Other sites do a better
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2 job. But when a site gets hacked, someone notices
3 it, sends us mail and we capture it, we copy the
4 files and post it in our library.
5 Q. For what purpose?
6 A. To report on it. To show people the
7 security failed. This is what was put up on this
8 site. What the motives are of people who do this
9 is not something we try and pass judgment on. Some
10 people do it as a political statement. Some people
11 do it because they are immature. Some people have,
12 you know, nefarious purposes.
13 It's not our place to say this is done
14 for this particular reason. We just show or we did
15 show what it looks like. And if possible, how it
16 was done and what it was that failed.
17 Q. And that's solely for the purpose of
18 letting people know that it happened?
19 A. Yes, it's a news story. The mainstream
20 media does the same thing except they generally
21 like the technical detail and lots of times they
22 don't provide specifics, and there's a lot of
23 innuendo, a lot of, you know, hysteria that goes
24 along with those reports that we try to avoid.
25 Q. When you report on them do you ever post
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2 an executable software utility?
3 A. No, that's not how it works on the web
4 page. It's just a graphical file.
5 Q. Do you ever post algorithms in
6 connection with those --
7 A. No.
8 Q. -- instances?
9 Do you give any technical description of
10 those hacks?
11 A. If we receive technical information as
12 how it's done, yes, we provide that.
13 Q. Do you make any difference in your own
14 profession between journalism and civil
15 disobedience?
16 MR. GARBUS: I object to the form.
17 A. Yes, I think there are --
18 Q. What is the difference that you make?
19 A. Journalism is reporting on something
20 obviously. Civil disobedience is taking a stand, a
21 nonviolent stand, against something that you think
22 is wrong.
23 It's a sad day if journalism and civil
24 disobedience becomes the same thing, but it has
25 happened in some countries.
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2 Q. Do you remember ever writing in the 2600
3 publication that mirrors of DeCSS were a
4 demonstration of electronic civil disobedience?
5 A. Yes.
6 Q. What does that mean?
7 A. It basically means that despite the fact
8 that we're being threatened by all kinds of
9 powerful entities, for people, many of whom are
10 very small, poor people, individuals around the
11 world, for them to actually stand up and say this
12 is wrong and stand up against those entities, to me
13 that's an admirable thing.
14 To me that's basically putting your
15 beliefs in front of your personal safety, which is
16 what civil disobedience is. It's lying down in
17 front of bulldozers. It's blocking streets and
18 being arrested. This is a case of electronic civil
19 disobedience where people say this is wrong and I
20 am going to put my site on the line because I
21 believe it's wrong.
22 Q. Does civil disobedience involve breaking
23 the law for a cause you consider just?
24 MR. GARBUS: I will object to it. Why
25 don't you take the -- well, you can't.
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2 Civil disobedience is a very complex thing.
3 I will allow the witness to answer. It is
4 clearly you're limited, your knowledge is so
5 limited.
6 MR. GOLD: Thank you so much,
7 Mr. Garbus. That's very kind of you.
8 MR. GARBUS: He also drew a
9 distinction between his role as a
10 journalist --
11 MR. GOLD: You're not testifying,
12 Mr. Garbus.
13 MR. GARBUS: -- and the whole question
14 of civil disobedience.
15 MR. GOLD: What about this question
16 bothers you so much?
17 MR. GARBUS: Because you have no
18 awareness of what you're talking about. It
19 is embarrassing. I would think you'd be
20 embarrassed.
21 MR. GOLD: Go ahead, Mr. Goldstein.
22 THE WITNESS: I need to hear the
23 question again.
24 (A portion of the record was read.)
25 A. Yes, I believe so. That's the
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2 definition of civil disobedience.
3 Q. You understood my question, didn't you?
4 That's why you answered it?
5 A. I am not going to take sides here.
6 Q. Thank you, Mr. Goldstein.
7 Has 2600 received any benefit from being
8 a plaintiff in this action?
9 MR. GARBUS: Defendant.
10 MR. GOLD: Defendant, thank you.
11 MR. GARBUS: They would like to be the
12 plaintiff.
13 A. Well, morally, yes. We found many,
14 many people support us and it's been very
15 heartening to see that. It's also been pretty
16 terrifying and sobering knowing what we're up
17 against. So I would say there is a little of good
18 and bad.
19 Q. What are you up against?
20 A. We're up against some pretty powerful
21 entities. For instance, when we have media people
22 who want to interview us, nine times out of ten it
23 turns out their parent company is suing us. So it
24 is kind of hard to believe that fair stories will
25 be written in cases like that.
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2 Q. Have any unfair stories been written
3 about you?
4 A. Yes, quite a few.
5 Q. In what publication?
6 A. I am thinking of specifically MTV, which
7 is owned by Viacom, did a really bad piece. That
8 was last year. That was before this all happened.
9 It is something we're used to. We're used to bad
10 media because they don't understand the issues and
11 because they want the sensation of headlines saying
12 hackers can do anything. They don't do the
13 research.
14 We have had had some very good pieces as
15 well. We've had a good piece in the Village Voice,
16 The New York Times. So it's worth the risk because
17 I think we do get some reporters that understand
18 what is going on.
19 Q. Do you believe hackers can do
20 everything?
21 A. No. No.
22 Q. Didn't you say that any protective code
23 would be uncovered, discovered, undone by hackers?
24 A. Yes. Hackers can figure things out, but
25 it takes time. It doesn't mean they can do
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2 anything. It means that if a particular form of
3 technology very often written by hackers can
4 eventually be figured out, undone, defeated.
5 Q. So the terrifying instances you're
6 talking about are instances where newspapers write
7 some story about you?
8 A. No. No.
9 MR. GARBUS: Objection. You misstated
10 the witness's testimony.
11 A. The terrifying things are facing this
12 kind of a lawsuit, knowing that everything we've
13 worked for over the past fifteen or so years can be
14 unraveled this easily and that so much time and
15 effort can be spent on this and our progress can be
16 slowed down to nothing.
17 Q. When was the anticircumvention provision
18 enacted into law, if you know?
19 MR. GARBUS: Objection.
20 Q. Was it fifteen or ten years ago?
21 A. No.
22 Q. Is it true that you're terrified by the
23 fact that some companies have brought a lawsuit
24 against you alleging that you violated their
25 rights?
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2 A. It's the might that's focussing on us
3 that's terrifying. Not what they say we've done.
4 Because obviously we don't believe we have done
5 anything wrong.
6 Q. What has that might done to you other
7 than file a lawsuit?
8 A. It's a psychological thing. It's
9 knowing that everything -- that so many entities
10 are controlled by these eight companies, and for
11 instance, we had problems with a bank because they
12 had changed their policy towards Internet sales,
13 which we've started to get involved in, and the way
14 that they suddenly decided that we were a risk to
15 them made us wonder was one of these eight
16 companies behind it.
17 It was very easy to find links between
18 them and the eight companies because these eight
19 companies are linked to everybody. So it's a
20 psychological thing in that every time something
21 bad happens, you wonder. Is it because of -- who
22 are these powerful people? We all watch the
23 movies. We all know what kind of evil things can
24 go on. So your imagination can run away with you
25 sometimes, but a lot of times it's accurate.
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2 Q. Some of us read newspapers and find out
3 what terrible thing have gone on?
4 MR. GARBUS: Is that a question,
5 Mr. Gold, or is that a statement?
6 Q. Isn't it a fact that some of us go to
7 movies and find out that hackers have done terrible
8 things, if we believe what the movie has portrayed?
9 A. If you believe what the movies portray
10 about hackers, there is not much I can say, really.
11 Q. Who knows the truth about hackers other
12 than you?
13 MR. GARBUS: Object to the form of the
14 question. Direct the witness not to answer.
15 Go ahead, Mr. Gold.
16 THE WITNESS: Not to answer or to
17 answer?
18 MR. GARBUS: Answer.
19 THE WITNESS: I'm sorry. Can you
20 repeat the question?
21 A. I don't think there is a truth. I
22 think there are elements of truth and I think I
23 have got a few of those elements. I think a lot of
24 people in the hacker community have a few of those
25 elements. And unfortunately, I believe a lot of
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2 the media doesn't really want to get the true
3 story. They have written the story before they
4 actually interview the people.
5 Q. Is it true that some of the people
6 believe that of you?
7 A. Oh, I am sure some people do.
8 Q. It depends on which side of the matter
9 you are on.
10 A. It depends on what they believe when
11 they read, absolutely.
12 Q. Paragraph 13 of your May 3 declaration.
13 (Handing.)
14 MR. GOLD: Can you mark this as the
15 next exhibit, sir.
16 (Plaintiffs' Exhibit 5, Declaration of
17 Emmanuel Goldstein, marked for
18 identification, as of this date.)
19 THE VIDEOGRAPHER: The time is 2:50 p.m.
20 We're going off the record.
21 (A recess was taken.)
22 THE VIDEOGRAPHER: The time is
23 2:52 p.m. We're back on the record.
24 By MR. GOLD:
25 Q. Is it true, sir, that you stated on the
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2 record a short while ago that you believed some
3 bank you were trying to open an account in wouldn't
4 do it, then you believed that was because they were
5 owned by or connected to one of the plaintiffs?
6 MR. GARBUS: Objection. He didn't
7 state that.
8 MR. GOLD: Why don't you let your
9 witness answer.
10 Q. Did you say it?
11 A. I stated that we had problems with a
12 bank and we in our minds had to wonder if that was
13 caused because of an affiliation. In other words,
14 any bad thing that happens to us, we have to
15 wonder. You know, is there a connection? Because
16 there are definitely connections. A lot of these
17 corporations are linked together and it's something
18 to definitely be worried about. It's a
19 psychological thing.
20 Q. And you say that -- you're serious about
21 this, I gather -- that anything bad that happens to
22 you since this suit was started you believe is the
23 fault of the movie companies?
24 MR. GARBUS: I will object. It's not
25 what the witness said. You're just
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2 misstating it. He's been the subject of the
3 press where he has been vilified. How can
4 that not have a consequence or effect with
5 these banks?
6 Q. Do you want to repeat what Mr. Garbus
7 said? Now that he's told you what to say.
8 A. It's basically we investigated and found
9 that there was no truth to that. But what I was
10 trying to convey is that there is a psychological
11 thing that goes on when you have all these powerful
12 enemies and, you know, it's -- it wouldn't be
13 untrue to say that you become a little bit paranoid
14 and you start to worry about things that, you know,
15 you wouldn't ordinarily worry about. That's what I
16 considered to be the scary part of this. And of
17 course I'm not saying that there aren't real
18 threats out there. I am sure there are.
19 Q. What are they?
20 A. I am sure this has had an effect on the
21 fairness of the media coverage that we get.
22 Q. Why are you sure of that, sir?
23 A. Because that's the nature. If a
24 particular media outlet is owned by a different
25 corporation, of course on the record they will say
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2 that there's no effect. That ownership has no
3 effect.
4 But I think it has been proven time and
5 again that ownership of media outlets does
6 definitely have an effect. For instance, ABC is
7 owned by Disney and has recently been accused of
8 not airing stories that are critical of Disney,
9 even though it was said at the time of Disney's
10 takeover there would be no effect on news.
11 When Time Warner purchased CNN, again it
12 was said there would be no effects, and I have
13 heard allegations that there are. It's a common
14 practice when corporations take over other
15 corporation that there is some influence.
16 So when you're dealing with things like
17 the media, which I believe should be independent of
18 all this, it's inevitable. It's rather sad because
19 I think the American people wind up losing.
20 MR. GARBUS: On that note,
21 Mr. Gold, --
22 MR. GOLD: Don't confuse me. I am
23 good, but I am not that good.
24 MR. GARBUS: We can discuss that at a
25 later time, but it is now approaching
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2 3 o'clock. Should we take our break?
3 MR. GOLD: Sure.
4 MR. GARBUS: And tomorrow morning at
5 10?
6 MR. GOLD: Yes.
7 THE VIDEOGRAPHER: The time is 2:55
8 p.m. of the videotape deposition of
9 Mr. Emmanuel Goldstein. This completes tape
10 number 2.
11 (Time noted: 2:55 p.m.)
12
13 ____________________
14 EMMANUEL GOLDSTEIN
15
16 Subscribed and sworn to before me
17 this ___ day of __________, 2000.
18
19 _________________________________
20
21
22
23
24
25
163
1
2 C E R T I F I C A T E
3 STATE OF NEW YORK )
4 : ss.
5 COUNTY OF SUFFOLK )
6
7 I, THOMAS R. NICHOLS, a Notary Public
8 within and for the State of New York, do
9 hereby certify:
10 That EMMANUEL GOLDSTEIN, the witness
11 whose deposition is hereinbefore set forth,
12 was duly sworn by me and that such
13 deposition is a true record of the testimony
14 given by the witness.
15 I further certify that I am not
16 related to any of the parties to this action
17 by blood or marriage, and that I am in no
18 way interested in the outcome of this
19 matter.
20 IN WITNESS WHEREOF, I have hereunto
21 set my hand this 28th day of June, 2000.
22
23
24 _____________________
25 THOMAS R. NICHOLS
164
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3 ------------------- I N D E X-------------------
4
5 ------------- INFORMATION REQUESTS -------------
6 TO BE FURNISHED: 41
7 REQUESTS: 93, 108, 121
8
9 -------------------- EXHIBITS-------------------
10 PLAINTIFFS' FOR ID.
11 1 Piece of paper with the letters 28
DeCSS written on it
12
2 Spring 2000 issue of 2600, The 48
13 Hacker Quarterly, magazine
14 3 Document headed "2600/News Archive, 76
Page 1 of 2
15
4 Copy of plaintiffs first request 94
16 for production of documents
17 5 Declaration of Emmanuel Goldstein 158
18
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25
165
1
2 UNITED STATES DISTRICT COURT
3 SOUTHERN DISTRICT OF NEW YORK
4
UNIVERSAL CITY STUDIOS, INC.; )
5 PARAMOUNT PICTURES CORPORATION; )
METRO-GOLDWYN-MAYER, INC.; TRISTAR )
6 PICTURES, INC.; COLUMBIA PICTURES )
INDUSTRIES, INC.; TIME WARNER )
7 ENTERTAINMENT CO., L.P.; DISNEY )
EMTERPRISES, INC.; AND TWENTIETH )
8 CENTURY FOX FILM CORPORATON, )
)
9 )
PlaintiffS, )00 Civ. 277
10 )(LAK)(RLE)
vs. )
11 )
SHAWN C. REIMERDES; ERIC CORLEY )
12 A/K/A "EMMANUEL GOLDSTEIN"; )
ROMAN KAZAN; AND 2600 )
13 ENTERPRISES, INC. )
)
14 Defendant. )
------------------------------------)
15
16
17 CONTINUED VIDEOTAPED DEPOSITION OF
18 EMMANUEL GOLDSTEIN
19 New York, New York
20 Wednesday, June 28, 2000
21
22
23
24 Reported by:
Thomas R. Nichols, RPR
25 JOB NO. 110289
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7 June 28, 2000
8 10:20 a.m.
9
10 Continued videotaped deposition of
11 EMMANUEL GOLDSTEIN, held at the offices
12 of Proskauer Rose LLP, 1585 Broadway,
13 New York, New York, pursuant to Notice,
14 before Thomas R. Nichols, a Registered
15 Professional Reporter and a Notary Public
16 of the State of New York.
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