1
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNIVERSAL CITY STUDIOS, INC.,
et al,
4
Plaintiffs,
5
v. 00 Civ. 277 (LAK)
6
SHAWN C. REIMERDES, et al,
7
Defendants.
8
------------------------------x
9
July 17, 2000
10 9:00 a.m.
11 Before:
12 HON. LEWIS A. KAPLAN,
13 District Judge
14 APPEARANCES
15 PROSKAUER, ROSE, L.L.P.
Attorneys for Plaintiffs
16 BY: LEON P. GOLD
CHARLES S. SIMS
17 CARLA MILLER
WILLIAM M. HART
18
FRANKFURT, GARBUS, KLEIN & SELZ
19 Attorneys for Defendants
BY: MARTIN GARBUS
20 ERNEST HERNSTADT
DAVID ATLAS
21
22
23
24
25
2
1 THE CLERK: Universal versus Reimerdes. Is the
2 plaintiff ready?
3 MR GOLD: Ready for the plaintiff.
4 THE CLERK: Is the defendant ready?
5 MR. GARBUS: We are not, we understand we are going
6 ahead.
7 THE COURT: You are going ahead, unless you have some
8 new reason to tell me that I haven't heard before.
9 MR. GARBUS: We have a motion pending and it seems to
10 me that it would be appropriate until such time that the Court
11 renders a decision to not go ahead.
12 THE COURT: You are going ahead. I am not rendering
13 any opinion now, but rather in the course of the morning or
14 perhaps later in the day.
15 MR. GARBUS: May we have an opportunity to go to the
16 Second Circuit to get a stay?
17 THE COURT: You have the opportunity to do whatever
18 you want, but the trial is now and if you wish to make an
19 opening statement, I will hear it now.
20 MR. GARBUS: Would the Court grant a stay?
21 THE COURT: No.
22 MR. GARBUS: Then we will immediately go to the
23 Second Circuit. I will make an opening statement.
24 THE COURT: You are the defendant, Mr. Garbus. The
25 plaintiff goes first.
3
1 MR. GARBUS: Thank you very much.
2 THE COURT: Mr. Gold, you may proceed.
3 MR GOLD: Thank you, your Honor. Good morning. My
4 name is Leon Gold.
5 MR. GARBUS: May I just interrupt one moment?
6 If I understand your ruling, we cannot go to the
7 Second Circuit until such time that we have a decision?
8 THE COURT: You will have it shortly.
9 Mr. Gold?
10 MR GOLD: My name is still Leon Gold. I'm a partner
11 at Proskauer Rose and I represent the motion picture studio
12 plaintiffs.
13 In 1998, Congress recognized the ease with which
14 digital copyrighted works such as movies and records could be
15 copied and distributed worldwide virtually instantaneously via
16 the Internet subjecting copyright owners to losses of material
17 portions of the value of their copyrights virtually overnight.
18 Congress determined that sound copyright economic and
19 Internet policy dictated that this risk of loss had to be
20 addressed. Congress then provided that extra protection over
21 and above existing copyright laws that were needed for the
22 works since disastrous harm could occur well before any Court
23 could act under the copyright laws, well before plaintiffs
24 could get injunctions for infringement or copyright or for
25 contributor infringement.
4
1 The anticircumvention law was passed as a result.
2 Defendants and their supporters disagree with Congress'
3 findings and with the anticircumvention law. They believe the
4 interests of a free Internet, of free access to digital copies
5 of movies, records and books deserve more respect and more
6 attention than protection of copyrighted artistic work.
7 They believe in the right to take this work without
8 any permission, but no one has the right to steal another
9 person's copyright to steal their intellectual property and
10 Congress may provide and has provided additional protection
11 for intellectual property when new technology has
12 substantially increased the risks of infringement.
13 We note this is not the appropriate forum for the
14 expression of defendant's beliefs about effective social,
15 economic and Internet policy. Congress has decided and we
16 respectfully submit the Courts must act promptly to protect
17 these interests in the manner that Congress intended. Not to
18 do so eliminates the purposes, eliminates the existence truly
19 of the act in question.
20 In the anticircumvention law Congress provided that
21 owners of copyright digital materials could protect their work
22 with technological measures which would prevent unauthorized
23 access to their copyrighted works. Congress provided that if
24 copyright owners protected their works with such measures,
25 circumvention devices could not be offered or trafficked to
5
1 the public and trafficking in such a device was forbidden and
2 could be enjoined by a Federal Court.
3 Congress intended that the injury that the Court
4 would protect against would be the loss of the device
5 protecting the copyrighted material. The security afforded by
6 such protective device is the asset protected by the
7 anticircumvention law.
8 Plaintiff's harm is first the loss of that asset
9 which could create irreparable loss and the threat of
10 uncontrollable copying. After all, we will show the studios
11 were not going to go forward into the digital world with this
12 new product, DVD, without such protective technology.
13 Congress did not provide that the Court would not
14 grant injunctions in the anticircumvention law until actual
15 infringement, actual copying or contributory infringement took
16 place. Had Congress imposed that prerequisite, there would
17 have been no need for the anticircumvention law in the first
18 place.
19 We will briefly show that when digital copyrighted
20 material -- and I'm referring now to music on CD's -- were
21 sold without inscription to protect against access to the
22 artistic work, the record -- the record industry found that
23 all of its copyrighted work were infringed and that virtually
24 every copyrighted song in their libraries were all made
25 available on the Internet via Napster at no cost with millions
6
1 and millions of downloads of songs taking place every week.
2 For months, the record companies have been working
3 their way to a preliminary injunction hearing which is, in
4 fact, scheduled for July 26th. Napster, the operation of the
5 a center of this activity, is the most frequently visited web
6 site in the U.S. However, movie companies with respect to
7 DVD's were able to take advantage of inscription and the
8 digital millennium copyright act and are here to protect
9 against such a result, protect against waking up one morning
10 and finding out they've been Napsterized and only then seeking
11 to enjoin the copyright.
12 Once record companies' songs have been copied and
13 widely distributed, something that happens right away,
14 irreparable harm has taken place. Defendants argue that the
15 DeCSS does not quite yet provide a threat of copying because
16 copying is many months to several years away, but even
17 defendants don't deny that at some point, overwhelming -- the
18 overwhelming probability of copying and transmission over the
19 Internet will take place.
20 The movie companies, however, prefer to rely on DMCA
21 rather than the assurances of those who make such assertions.
22 Plaintiffs want to keep their films protected.
23 The Internet now contains offerings of movies with
24 good visual and audio quality, something that did not happen
25 before the advent of DeCSS. Buyer rated movies played from
7
1 decrypted DVD's are also now being sold in hard copies. It
2 doesn't take a rocket scientist to understand how this
3 happened.
4 Defendants are wrong because decryption of DVD's with
5 DeCSS and the offering and transmission of the contents on the
6 Internet has begun, as your Honor will soon see. It's picking
7 up steam and it will become an avalanche unless halted by this
8 Court.
9 Once a film is decrypted and exchangeable on the Net
10 for down loading, that film's protection is lost for good.
11 More powerful transmission lines at increased hard drive
12 storage capacities are the most rapidly developing area of
13 current Internet development. That makes the copy problem a
14 certainty. The danger of immense harm is upon plaintiffs. We
15 will clearly show in this case our right to an injunction.
16 We will establish that CSS is a device meant to be
17 protected under the statute and that trafficking in DeCSS is
18 unlawful. The studios will show that CSS is a technological
19 measure effectively controlling access to copyrighted DVD
20 movies.
21 In the ordinary course of its operations, it requires
22 the application of information or a process or a treatment
23 with the authority of the copyright owner to gain access to
24 the work. The studios will show that DeCSS is a technology, a
25 device, a component designed for the purpose of circumventing
8
1 CSS and placed in a copy -- placing a copy of the DVD movie on
2 the user's hard drive. We will show it has no other purpose.
3 The studios will show that DeCSS has a limited
4 commercially-significant purpose or use other than to
5 circumvent. It has no such commercial purpose other than to
6 circumvent.
7 Defendants admit that they've posted DeCSS on their
8 web site and have linked to other web sites which post DeCSS
9 and, thus, have offered this device to the public and
10 trafficked in DeCSS.
11 As we have set forth in our in limine motions, we
12 submit respectfully that there aren't any material triable
13 issues in this case. The reverse engineering and
14 encryptographic research exceptions don't apply to our
15 trafficking claims as a matter of statutory policy and
16 statutory interpretation and because defendants have admitted
17 their acts had nothing to do with reverse engineering or
18 encryptographic research.
19 Fair use is not a defense to a trafficking claim and,
20 your Honor, that some few people may make some acceptable use
21 of DeCSS does not excuse offering it to the world on the
22 Internet.
23 Finally, plaintiffs have already suffered great
24 damage because their protective device has been taken away by
25 defendant's acts. Their films are on DVD's are no longer
9
1 protected by an anticircumvention device. Plaintiffs would
2 not have issued DVD's without a protective encryption system
3 and the threat of widespread copying is here and the process
4 has begun.
5 Your Honor, this case relates to the protection of
6 artistic works and to the health of the American motion
7 picture industry. While the computer and the Internet are
8 extraordinary developments that have an impact on every person
9 in the world every day, still the computer and the Internet
10 are machines and systems with no moral sense and no ability to
11 choose the ends to which they are put.
12 Like the old machines and the old system and the old
13 systems, these new technologies can be used to promote
14 artistic expression, economic growth and educational
15 opportunities or they can be used to steal and invade the
16 rights guaranteed by our Constitution and our laws.
17 Congress has made some critically important policy
18 decisions with respect to some of these matters. The Digital
19 Millennium Copyright Act is one of those decisions. As we all
20 know, laws passed by legislative bodies, Congress' acts can be
21 rendered meaningless by the absence of prompt enforcement of
22 Congress' will. Then chaos will reign and the most important
23 technological developments of our age will be employed to our
24 detriment.
25 We note that there are a large number of brilliant
10
1 creative productive people who lead the American technological
2 revolution. Their wisdom and counsel are critical to
3 solutions of some of these problems. However, their voices
4 will not be heard in this trial.
5 A good deal of loud noise, much of it irrelevant and
6 much of it untrue, has preceded today's events. Today the
7 rule of law begins to assert itself. It's a welcome day.
8 Your Honor, plaintiffs are ready and anxious to
9 present their case.
10 THE COURT: Thank you, Mr. Gold.
11 Mr. Garbus?
12 MR. GARBUS: Your Honor, it's a great privilege and a
13 pleasure to be here and to argue and to deal with the issues
14 that are raised by this statute. The statute -- this is the
15 first case interpreting that statute. This is a statute that
16 will define the future of American technology in many ways.
17 In many ways, it will define how the technology and the laws
18 will encompass each other.
19 The position that we take, which is very clear is one
20 of protection, is one of protection of copyright interests and
21 one of protection of the First Amendment and one of protection
22 of fair use, a concept that has been with us for a very long
23 period of time.
24 (Continued on next page)
25
11
1 MR. GARBUS: The issue that we are facing I think is
2 a little more complicated than I think Mr. Gold makes it out
3 to be. I think the issue is how do you balance the need for
4 copyright protection. After all, the Constitution talks about
5 the creation of copyright, we recognize that copyright must be
6 protected so that artists and creators can be reimbursed for
7 the work that they do, and we recognize that movie studios and
8 others must also be reimbursed and entitled to make whatever
9 profit that they can make as a result of the work that they
10 do. We also recognize -- and your Honor has seen in this
11 case, many of the other issues that are involved. We
12 recognize that there are certain needs for research, there are
13 certain needs for technology, there are certain needs for
14 librarians. The case is larger than I think Mr. Gold
15 interprets it, and I think that the facts are different than
16 the facts that were given to the Court in the first instance.
17 It turns out that the DeCSS or the cracks of the
18 codes go back to 1997, and the avalanche that the movie
19 studios have been talking about have never occurred. The most
20 recent experiment that we learned about, and we learned about
21 it in this case -- and you will hear it from the first witness
22 that the plaintiff calls, Mr. Michael Shamos -- and what
23 Mr. Shamos tells you is that after trying to download a DVD,
24 and then to do this illegal copying, it took him working in
25 the middle of the night with an assistant some 20 hours to do
12
1 it. And what you will learn is the kind of technology that he
2 had when he did it. You will also hear from our experts what
3 it takes most people in a normal time to do. This is not the
4 Napster case. The fundamental issue here -- and it's a very
5 complicated one, and we have not had a chance to develop it --
6 is what is the future of the Internet, to what extent do all
7 the horrors that Mr. Gold talks about really ever take place.
8 How fast will things move? How fast will they move within a
9 year? How fast will they move within two years? How long
10 will DVDs be around? How long will there be other encryption
11 systems.
12 You will hear that the motion picture industry said
13 in testimony to Congress back in May out in Stamford that DVD
14 audio for example, and they raised all the horrors, cannot be
15 distributed, cannot be shown, is not available, and they have
16 said that it was withdrawn for a variety of reasons. We will
17 show you in court that you can walk out today to Tower and buy
18 these DVD audios.
19 There was testimony in the case, and you have seen
20 the affidavits, about the DVD audios, that they stopped making
21 the machines. You can go out to Tower and buy the machines.
22 So, what you will find I think with respect to each
23 claim is that it is false, it is easy to say in a case the sky
24 is going to fall tomorrow.
25 What happened in the Napster case, the downloading
13
1 has not happened here. What he is talking about is something
2 that may happen in the future. If that future happens, then
3 you have what happens in the Napster case, you go out to the
4 people who did the file sharing. I told you at the very
5 beginning of the trial, and they told you something opposite
6 than what I said, and you said one of us was speaking baloney.
7 As of yesterday, they did not have the name of one
8 single person who had ever used DeCSS to illegally copy a
9 film. As of yesterday they did not know of one single
10 instance of illegal copying of a film.
11 The MPA has extraordinary resources. What you will
12 learn in this case is that early on they learned exactly about
13 the breaks and they learned exactly about the Linux Group and
14 the attempt to make a Linux. Now what happens to the owner of
15 the DVD, the movie studio that makes the DVD? The Linux
16 player, if you take the DVD, the Linux person buys it, he pays
17 $15, he pays $20, and he puts it in his Linux machine. And
18 the owner of the DVD gets paid for that. The only thing that
19 that Linux operator may not have is a license. You are
20 familiar with the license structure. We have gone through the
21 license structure at great length.
22 You will I think also hear from some of the other
23 plaintiffs' witnesses today, and you will learn from them that
24 up until a little while ago not one of them -- this is the MPA
25 with its vast resources -- had every tried to do this
14
1 allegedly illegal act, even though they came into court and
2 said it was going to happen tomorrow. Not one of them, with
3 the vast resources of the MPA, the vast resources of the
4 motion picture industry, the vast resources of the DVD, can
5 point to one single case of copying, not one person, not one
6 single place.
7 They have chosen as a defendant Mr. Goldstein. The
8 reason they have chosen Mr. Goldstein is obvious. There are
9 university sites that post DeCSS object and source codes.
10 There are newspapers, the San Jose Mercury News, the New York
11 Times, that link the sites.
12 Disney is a plaintiff in this case. If you go to
13 Disney's search engine and you type in DeCSS and make a
14 search, you will find sites all over the place. If you go to
15 Go, which is also Disney's search engine, you will also find
16 sites, forgetting about Mr. Goldstein, all over the place.
17 The statute is very clear with respect to the
18 benefits that a journalist has. I will shortly before I
19 finish just answer the question that you placed last week with
20 respect to where you saw the issues in this case.
21 Before I do that, I note, and you have noted, that
22 the academics from the leading universities have come in on
23 the side of the defendants in this case. You have briefs
24 submitted by Professor Samuelson at the very eminent Berkeley
25 Center, you have affidavits of Professor Nessom at Harvard
15
1 University, from Margaret Smith at Harvard University,
2 Professor Bengler at NYU, and Professor Moglen at Columbia.
3 So that the issues in this case are far more complex I think
4 than my friend Mr. Gold concedes.
5 I recognize that this case is only the very first
6 small step. It's a beginning in deciding these issues. As a
7 trial court judge the inclination to overrule a law of
8 Congress because it's bad would be inappropriate. We are not
9 saying you should overrule a law because it's a bad law. I
10 don't think that's the function of the argument that's being
11 made here today. I think that this case will proceed. It
12 will go to the Second Circuit, it will go to the United States
13 Supreme Court. I think all of us have a very heavy
14 responsibility to make a record in this case that is adequate
15 for the kinds of determinations that are going to be made for
16 a statute of this kind.
17 At the end of the day DVD, there may or may not be
18 DVD movies, but there will be at least for a period of time
19 DVD encryptions on books, DVD encryptions on audio, which is
20 now out, contrary to what the MPA said.
21 So, what you are really talking about is does this
22 new digital technology fundamentally mean the end of fair use.
23 And that is the issue that is faced. And when the MPA went to
24 Congress, they said we have reconciled it. Betamax is still
25 the law, there still is fair use. I won't go through Betamax
16
1 with you. The Court knows it. I won't go through the Sega
2 case with you. The Court knows it. I won't go through the
3 Connectix case again because the Court knows it. I won't go
4 through the monopoly issues again because the Court knows
5 them.
6 Again I think it's a privilege for all of us to be
7 here and to have a chance to establish a record that many
8 courts and judges and the public will be looking at in the
9 years to come. Thank you.
10 THE COURT: Thank you, Mr. Garbus. Mr. Gold, your
11 first witness.
12 MR. GOLD: Mr. Sims will present our first witness.
13 MR. SIMS: Dr. Michael Shamos.
14 THE COURT: I am one of the judges who requires one
15 lawyer for each witness. The first lawyer who objects on
16 direct or questions on cross will be the lawyer for that
17 witness.
18 MICHAEL I. SHAMOS,
19 called as a witness by the Plaintiffs,
20 having been duly sworn, testified as follows:
21 MR. GARBUS: I presume with respect to whether a
22 witness is qualified as an expert or not, given this is a
23 nonjury trial, you may care to hear that at some other time.
24 Or would you care to have that at the very beginning.
25 THE COURT: I don't need to have it at the very
17
1 beginning. I don't follow the practice of having the witness
2 tendered. If there is an objection on the grounds of
3 expertise, you should make the objection, and if I think I
4 need to hear argument, I will hear it. If not, we will
5 reserve it.
6 MR. GARBUS: Mr. Hernstadt was going to make that,
7 but I was going to cross-examine the witness. I don't know if
8 that violates your rule.
9 THE COURT: Technically, but I will allow you to do
10 that.
11 MR. SIMS: I think if you stay about an inch or so
12 further from the microphone, the sounds might be a little
13 better.
14 MR. GARBUS: Does Mr. Hernstadt now make the
15 objection or --
16 THE COURT: I don't even know what the questions are,
17 so I can't very well rule on the objection. There will come a
18 point I suppose when Mr. Sims is going to ask him do you have
19 an opinion on some subject, and then if one of you, either one
20 of you wants to make that objections, I will hear whichever
21 wants to make it.
22 MR. HERNSTADT: Your Honor, we are objecting to
23 presenting any evidence. If he is being presented as a fact
24 witness, almost all of the evidence he is going to present is
25 hearsay. If he is being presented as an expert, he is
18
1 presenting evidence based on the work of his assistant which
2 in large part he didn't even observe and without a basis for
3 the expert testimony.
4 THE COURT: Let's do this one step at a time, please.
5 MR. SIMS: I really had plans to do this the old
6 school way and present the witness's qualifications. I think
7 it will be clear at the right point.
8 DIRECT EXAMINATION
9 BY MR. SIMS:
10 Q. Dr. Shamos, what is your current occupation?
11 A. I am currently employed on the faculty of Carnegie Mellon
12 University in Pittsburgh, Pennsylvania. I am director of the
13 Universal Library and codirector of the Institute of
14 Electronic Commerce at CMU. I have a senior faculty position
15 in the School of Computer Science and the Graduate School of
16 Industrial Administration, which is CMU's business school.
17 Q. What is the Universal Library?
18 A. The Universal Library is a project in which we are
19 attempting to digitize all public domain works and make them
20 available over the Internet.
21 Q. Do you hold any positions with respect to e-commerce?
22 A. Yes, as I mentioned I'm codirector of the Institute for
23 Electronic Commerce. I'm in charge of the academic program in
24 electronic commerce from the technology side as opposed to the
25 business side.
19
1 Q. Describe briefly your educational and employment
2 backgrounds.
3 A. Yes. I began computer programming while in high school in
4 1962 and have been programming ever since then. I went to
5 Princeton University but was obliged to major in physics
6 because the field of computer science was not offered as a
7 major when I started.
8 I graduated from Princeton in 1968 with a Bachelors
9 degree in physics. I immediately began working for IBM
10 corporation in East Fishkill, New York. I was a programmer
11 programming automated test equipment to test integrated
12 circuits.
13 During the Vietnam era I was obliged to go into the
14 Service. I entered the public health service in 1970, served
15 at the National Institutes of Health, the Cancer Chemotherapy
16 National Service Center in Bethesda, Maryland, where I was a
17 supervisory programmer looking after systems that processed
18 cancer test data.
19 In 1972 I went to Yale University to obtain a Ph.D.
20 in computer science. Yale had just begun its department. I
21 left Yale in 1975 to take a faculty position at Carnegie
22 Mellon. I was hired in the computer science and mathematics
23 departments there from 1975, received my Ph.D. from Yale in
24 1978 and I --
25 THE COURT: What field?
20
1 THE WITNESS: Ph.D. was in computer science.
2 In 1978 I began to study law. While I was a faculty
3 member at CMU I was a law student at night, I went to Duquesne
4 University in Pittsburgh and obtained a law degree in 1981.
5 1981 I left the university because I had started a
6 computer software company. We were selling the precursor of
7 desk top publishing software based on some technology that had
8 been developed at CMU.
9 From 1981 until 1987 I was the president of two
10 software companies in Pittsburgh which I sold in 1987, took
11 what might be referred as a sabbatical for the next three
12 years, and in 1990 I joined the Webb law firm. That's
13 W-E-B-B, a law firm in Pittsburgh, Pennsylvania, which is the
14 largest intellectual property practice in western PA. I was
15 an attorney there rising to partner.
16 I left the practice of full-time law in 1998 to
17 return to Carnegie Mellon University to direct the Universal
18 Library project. When we began the Institute for Electronic
19 e-commerce the next year, I was named codirector of that and
20 have been teaching in it ever since.
21 Q. Describe your present teaching activities.
22 A. I teach four different courses at Carnegie Mellon. One is
23 on intellectual capital. One is on e-commerce technology,
24 which is a survey of all the technologies that we believe
25 pertain to electronic commerce. I teach a course in
21
1 electronic payment systems which are the technologies
2 surrounding how one pays for things on the Internet, and a
3 course in Internet law and regulation.
4 Q. Do you lecture in these areas as well?
5 A. I have a very extensive lecturing schedule largely
6 organized by Carnegie Mellon University. In addition to the
7 four courses I teach, I give approximately 400 outside
8 lectures per year, mostly to corporations that want to become
9 educated in the Internet.
10 Q. Which major U.S. corporations do you presently lecture for
11 and where do you do that lecturing?
12 A. The major clients for that are Morgan Stanley Dean Witter
13 where I teach in New York and London. I'm scheduled to also
14 teach in Chicago and San Francisco for MacKenzie & Company. I
15 have been asked to give Internet training to all 6,000 of
16 their consultants worldwide, so I have been doing that in a
17 variety of countries, Austria, France, the UK, United States.
18 Q. Are those lectures extended and do they address the issues
19 including bandwidth file transfer, web architecture,
20 compression, networking, Internet technology that are at issue
21 in this case?
22 A. They do, because they are fundamental topics in e-commerce
23 technology. Basically the outside lecturing I do are very
24 short and compressed summaries of the courses that I teach at
25 Carnegie Mellon.
22
1 Q. Can you describe your scholarly output?
2 A. Yes. Of course when I became an assistant professor
3 originally at Carnegie Mellon University there was the
4 obligation of publication, so I have something like 18
5 publications largely in the field of computational geometry
6 which I invented myself while at Yale University. Subsequent
7 to that I was on leave from the university for 17 years during
8 which I had virtually no scholarly output.
9 Upon returning to the university and becoming
10 involved principally in Internet activities, the time lag
11 between when one writes a paper and when it appears in print
12 is so long that the Internet has substantially changed by that
13 time, so the vast bulk of my scholarly output now consists of
14 maintaining the technology portion of the CMU Institute for
15 E-Commerce's website which contains freshly updated
16 information and links to hundreds and hundreds of sites
17 dealing with e-commerce technology. And my scholarly output
18 of course is also the lectures that I give and accompanying
19 slides.
20 Q. Let me show you what has been marked as Plaintiffs'
21 Exhibit 129 --
22 MR. HERNSTADT: May we have a copy, please?
23 MR. SIMS: Yes.
24 Q. -- and ask you whether this is the declaration you
25 submitted earlier in this case and with particular reference
23
1 now a copy of your CV?
2 A. It is my declaration and it is a copy of my CV.
3 Q. Is the CV complete and up to date?
4 A. The CV is not complete. It's accurate as far as it goes,
5 but it's what I refer to as my short r=82sum=82. It concentrates
6 principally on my major output and major invited talks. I
7 haven't listed everything that I have done.
8 Q. Have you testified in any court cases?
9 A. Yes, I have.
10 Q. Which ones that have any reference to computer matters?
11 A. I testified I believe approximately on six to eight cases
12 involving computer matters, and I testified in one case
13 involving Internet matters.
14 Q. What is that?
15 A. That was the "I Crave TV" case that was decided earlier
16 this year, January, February.
17 Q. Were you qualified as an expert in that case?
18 A. Yes, I was.
19 Q. By what court?
20 A. That was the Western District of Pennsylvania.
21 Q. Do you recall what subject you were qualified as an expert
22 in?
23 A. Yes, it was Internet technology, networking, transmission
24 of video over the Internet.
25 Q. Are you being compensated for your engagement here?
24
1 A. Could you repeat the question?
2 Q. Are you being compensated for your engagement by
3 plaintiffs?
4 A. I certainly hope so.
5 Q. How do the rates you are charging compare to the rates you
6 do charge for consulting work for Morgan Stanley and
7 MacKenzie?
8 A. For expert witnessing I charge approximately one third of
9 what I do for teaching to industrial corporations.
10 MR. SIMS: This is the point at which I would have
11 tendered the witness as an expert.
12 THE COURT: Ask your next question.
13 MR. SIMS: Thank you, your Honor.
14 Q. Are you familiar, Dr. Shamos, with the term CSS?
15 A. Yes.
16 Q. What does CSS stand for?
17 A. It stands for Contents Scrambling System.
18 Q. What is your understanding of what CSS is?
19 A. CSS is an access control and copy protection mechanism
20 that's utilized to control access to and the copying of
21 copyrighted works that appear on DVDs.
22 Q. What is your understanding of what CSS does?
23 A. Well, CSS is a comprehensive scheme that involves
24 contractual relations, hardware and computer software. What
25 CSS on the hardware level does is enables a licensee of the
25
1 system to put copyrighted material on a disk so that it is in
2 scrambled form and cannot be descrambled unless one knows the
3 secret.
4 Q. In what kind of DVD players can authorized disks be
5 played?
6 A. Well, authorized disks are supposed to be able to be
7 played only in what are referred to as compliant players,
8 players manufactured by licensees of CSS.
9 Q. And what kind of disks will authorized players play?
10 A. Well, to my knowledge authorized players play compliant
11 disks.
12 Q. Should they play other disks?
13 A. I believe it's a requirement, a licensing requirement that
14 they be constructed to not play unlicensed disks.
15 Q. Do you know what DeCSS is?
16 A. Yes.
17 Q. What does it do?
18 A. DeCSS is a computer program that circumvents the
19 protections on the CSS DVD.
20 Q. Were you asked by plaintiff's counsel in this case to
21 perform any studies or tests?
22 A. Yes, I was.
23 Q. Would you describe for the Court briefly what you were
24 asked to do.
25 A. Yes. The request was extremely specific. I was asked to
26
1 go out and purchase a brand new computer that had no prior
2 software. We were asked to go out and purchase brand new DVDs
3 from a store in their sealed packages. We were asked to
4 obtain --
5 MR. HERNSTADT: I might as well make the objection
6 now. Everything that he is telling you as "we" is for the
7 most part at least as set forth in his declaration "he," and
8 he is his assistant Eric Burns. So I would object to any of
9 the testimony that Dr. Shamos is going to present that was not
10 performed by him, and that includes almost all of the
11 experiments, and that also includes things like how long the
12 process took. We could go through it on a piece by piece
13 basis, but I would like to make the initial part of the
14 objection known.
15 I don't think Dr. Shamos should be permitted to
16 testify about any of this stuff until we have had an
17 opportunity to depose Mr. Burns, because Mr. Burns conducted
18 most of the experiment.
19 THE COURT: I take it that the bottom line of all of
20 this, Mr. Sims, is that you are going to ask for some opinion
21 from Dr. Shamos.
22 MR. SIMS: Absolutely. And Dr. Shamos was asked to
23 conduct it, and he did conduct it, and he had the help of his
24 assistant Mr. Burns. And I am quite confident in the courts
25 of this country when experts testify as to studies that they
27
1 have been responsible for, they sometimes have assistants who
2 have performed some of that work under their supervision.
3 THE COURT: Rule 703 I believe of the Federal Rules
4 of Evidence provides that the facts or data in a case upon
5 which an expert bases an opinion or an inference may be those
6 known to him or made known to him. If they are of a type
7 reasonably relied upon by experts in the field in forming
8 opinions or inferences on the subject, the data need not be
9 admissible in evidence. It need not be, in other words,
10 firsthand knowledge, it can be hearsay.
11 With this broad level of generality, Mr. Hernstadt, I
12 can't sustain your objection because I don't yet know what
13 foundation is going to be offered. So your objection is
14 overruled for now and we will see what kind of foundation
15 there is.
16 MR. HERNSTADT: Thank you.
17 Q. Dr. Shamos, I think you were in the course of describing
18 what you were asked to do, and I think it might be helpful
19 just to go through it, because I'm not sure exactly where you
20 left off.
21 A. Right. It was to obtain a brand new computer capable of
22 reading authorized DVDs, obtain a copy of some authorized
23 DVDs, obtain a copy of DeCSS through defendant's website,
24 attempt to use DeCSS to descramble one or more of the DVDs;
25 having done that, attempt to rip the result into DiVX, attempt
28
1 to find other DiVXs on the Internet, trade those with whoever
2 might make them available and then conduct studies to
3 determine how long it would take to transfer DVDs and DiVXs
4 over networks and the Internet.
5 Q. Did you perform all of this work yourself?
6 A. No.
7 MR. HERNSTADT: I'm going to renew the objection. Of
8 that list of things, first of all this was an experiment
9 solicited by the Proskauer firm. They were asked to do those
10 particular things, they did that. Dr. Shamos was not present
11 for the study of how long it took to transfer the DiVX. He
12 was not present for finding other DiVXs. He has never used an
13 IRC channel on his own. He didn't know that that's where you
14 are supposed to go, or at least he testified that his
15 assistant told him that's where you have to trade this stuff.
16 He also was informed by his assistant how to find --
17 well, I guess he could have found the DiVX anyway, but the
18 assistant performed the entire DiVX rip. He observed, he
19 testified, for some of it. He watched his assistant do this
20 stuff. In terms of the time, his assistant told him how long
21 it took. In very general terms his assistant did not keep any
22 records, and he doesn't even know -- there is an upload and a
23 download at the same time. He doesn't know whether one took
24 longer than the other or how long it actually took. There is
25 no evidence of any of this.
29
1 THE COURT: One thing I know for sure is I don't know
2 any of it because I haven't heard the evidence yet.
3 MR. SIMS: The objection, your Honor, is premature.
4 THE COURT: Yes, it's premature.
5 Q. Dr. Shamos, I think I had asked you whether you performed
6 other work yourself, and you were about to provide an answer.
7 THE COURT: Before he answers, let me just make a
8 request to you both. It's no secret to you I'm getting
9 realtime transcripts, that is, I'm seeing a draft of the words
10 almost as soon as they are spoken. It is perfectly obvious to
11 me that this is going to be essentially useless, and your
12 transcript in this case will be essentially useless, with all
13 due respect to my very able court reporters, if you people
14 don't give them a glossary by tomorrow, not an explanation of
15 what the terms mean but simply a list of the terms. Because I
16 can't imagine that they are doing anything but trying to do
17 things like phonetically render on a stenotype machine DiVX,
18 and you guys know what that is, and I at least know that it is
19 an acronym or an abbreviation, and I know what the letters
20 are, but they don't have a clue.
21 MR. SIMS: I appreciate that. At five of nine we put
22 that on our to-do list this morning, and we will have that
23 later today or no later than first thing in the morning.
24 THE COURT: Now, Dr. Shamos, please answer the
25 question if you remember.
30
1 THE WITNESS: I think the question was did I do
2 everything myself, and the answer is no, and I think of course
3 not.
4 When the CEO of a corporation reports his company's
5 earnings, he doesn't add up the numbers personally himself.
6 So, I engaged an assistant whose name is Eric Burns. Eric
7 Burns has been working with me for two and a half years. He
8 works on the Universal Library project where his principal
9 responsibility is the creation of videos and installing videos
10 in the Universal Library. I have worked with him very
11 extensively, and I have come to rely on both his knowledge and
12 his truthfulness.
13 Furthermore, the materials that he provided to me
14 were not simply his own words but various pieces of physical
15 evidence that I am able to examine in order to determine
16 whether I thought there was anything wrong with what he was
17 saying. Furthermore, all of the actions that were performed
18 here were done under my supervision or direction, with the
19 exception of some activities that took place while I was on
20 vacation for 12 days.
21 Q. Do computer scientists and professors such as yourself
22 customarily rely on intelligent, experienced, brilliant
23 computer students for some of their research and work?
24 A. Yes.
25 Q. What is your opinion of Mr. Burn's intellectual
31
1 qualifications as a computer scientist?
2 A. They were the reason I asked him to assist me in this
3 project.
4 Q. Now, I would like you to take us through the steps from
5 the beginning that you used in your study, and we have some
6 charts here that may be helpful as we work through it.
7 In connection with the first part of your test to see
8 if you could obtain DeCSS.
9 THE COURT: Who is the gentlemen who just came inside
10 the well?
11 MR. SIMS: Mr. Hart, one of my partners.
12 MR. HERNSTADT: Your Honor, we have never seen these
13 charts.
14 MR. SIMS: Yes, you have. They are exhibits and I
15 believe you have them.
16 MR. HERNSTADT: What exhibits are they?
17 MR. HART: Starting with 105.
18 MR. SIMS: Your Honor, may I have Mr. Hart help me
19 with the charts?
20 THE COURT: You may certainly.
21 Q. In connection with the first part of your testimony to see
22 if you could obtain DeCSS from the defendant's site and
23 descramble one of plaintiff's films, did you begin by buying a
24 new computer?
25 A. Yes, we went out to -- both Eric and I went out to Comp
32
1 USA in Parkway Center Mall in Pittsburgh, and we needed to
2 find a machine that day that would be capable of playing DVDs,
3 so we bought a high-end Sony laptop.
4 Q. For the purposes of your research and experiment here,
5 what was the purpose of buying a new laptop?
6 A. We wanted to avoid any suggestion that there were rogue
7 pieces of software or things that we had created that had been
8 lingering on the disk. We wanted to make sure there was
9 absolutely nothing on this machine except the operating system
10 and software that we specifically downloaded to the machine as
11 noted in my declaration.
12 Q. Is it a typical consumer computer?
13 A. I'm not sure I would refer to it as a typical consumer
14 computer. It's a laptop for one thing, and typically
15 consumers have home PCs. And at the laptop end, it's fairly
16 at the high end, although it costs significantly less these
17 days than a home desktop used to cost.
18 Q. How does its functionality compare to those that many
19 Americans would have either at the university or if they were
20 in high school and in an upper middle class community?
21 A. In terms of its processor capability, it's about at the
22 middle range of what one gets in desktops now, but it is at
23 the high end of what one gets in laptops. It was a 650
24 megahertz machine. In terms of its disk storage it had 18
25 gigabytes of disk, which is large for a laptop but not large
33
1 for a desktop as currently sold now.
2 Q. Did you proceed to try to decrypt the CSS-scrambled movie
3 using DeCSS?
4 A. We did.
5 Q. Where did you get DeCSS?
6 A. Okay. First, we purchased a copy of Sleepless in Seattle
7 from the same store that we purchased the laptop from. We
8 then came back, and I think if we look at Exhibit 105 --
9 THE COURT: Are you sure it wasn't Sleepless in
10 Hollywood?
11 THE WITNESS: We were sleepless actually during a lot
12 of this experiment.
13 A. So, we went to defendant's website, 2600.com.
14 Q. Is Exhibit 105 connected somehow to defendant's website?
15 A. Yes, I should explain that most of these exhibits on these
16 charts are going to be what are referred to as screen shots.
17 Screen shots are basically capturing in static form exactly
18 what was being displayed on the screen of the laptop at the
19 time that these actions were taken. So, they are the
20 equivalent of having stood there and photographed the screen.
21 So, one can see from a line -- and I am pointing with
22 this laser pointer to some of that. I will try to keep it out
23 of your eyes -- up here is a line that says address.
24 An address indicates the domain name of the website
25 that we are visiting, in general the URL, the specific
34
1 resource that we were asking to be downloaded to the screen.
2 And this is the home page of defendant's website.
3 MR. SIMS: Your Honor, are the books sufficient for
4 your use, or would you like to be handed a loose copy of the
5 exhibit?
6 THE COURT: No, I don't need a loose copy if they are
7 in the books.
8 MR. SIMS: We will move in, needless to say, the
9 paper ones.
10 THE COURT: I'm sorry?
11 MR. SIMS: You already have those. I don't need to
12 give the witness the paper one because he has the chart.
13 THE COURT: If he can see it.
14 THE WITNESS: Yes, I can.
15 Then I think in the next exhibit, one has to scroll
16 down a little bit from the top of the home page.
17 THE COURT: Mr. Sims, are you offering 105?
18 MR. SIMS: I was going to offer them in a group.
19 THE COURT: That's fine. What is the next one? 106?
20 MR. SIMS: 106.
21 Q. What does 106 show?
22 MR. HART: I have 107.
23 THE COURT: Let's do 106.
24 Q. What does Exhibit 106 show?
25 A. This one, because of the small size of the text, I would
35
1 appreciate having a paper copy.
2 THE COURT: Let's make this a little easier. I have
3 been provided with an extra copy of these exhibits. Why don't
4 you take them down there, Dr. Shamos, and they are all tabbed
5 and can you use them. I take it that's the same as the other
6 set?
7 MR. SIMS: It is, absolutely. For awhile anyway.
8 Q. What is Exhibit 106?
9 A. Exhibit 106 shows more of the home page of defendant's
10 website, what happens when one scrolls down further in the
11 site.
12 In this section "how you can help: While we have
13 every intention of sticking this out to the end" -- I believe
14 "this" refers to this litigation -- "we have to face the
15 possibility that we could be forced into submission. For that
16 reason it's especially important that as many of you as
17 possible, all throughout the world, take a stand and mirror
18 these files." Where "these files" are shown in red and
19 underlined on the page, that indicates a hyperlink, which if
20 one clicks with a mouse one will get to these files. These
21 files are indicated I think in the next exhibit.
22 Q. And did you click on the hyperlink to these files?
23 A. We did.
24 Q. Turn to Exhibit 107, if you would.
25 What is the list of things here, and what is
36
1 represented by the purple color in the middle?
2 A. Yes, Exhibit 107 shows the result of clicking on "these
3 files" on Exhibit 106, and one is presented with a long list
4 of places. We didn't visit every one of them but presumably
5 because of what is stated in the web page each of these is
6 some place where one can obtain DeCSS from.
7 We clicked on an
8 "HTPP://home.rmci.net/bert-fuckthelawyers"
9 If your Honor would excuse me for the necessity to
10 use such terminology in the courtroom, but it is evidence.
11 So we clicked on that link and we are taken to a site
12 which I think is shown in Exhibit 108.
13 Q. And is this the page you obtained by clicking on the
14 purple line in Exhibit 107?
15 A. Yes, it is. In fact if one looks up at the address line,
16 again at the top of the browser it shows that the page being
17 viewed is precisely the page that was referred to on the
18 previous exhibit.
19 Q. So, that if we look at the browser line on Exhibit 107,
20 the address is still at the defendant's website, 2600.com?
21 A. Yes, it shows that and it shows the specific file that was
22 being displayed on the browser at that moment.
23 Q. And then the very next screen you obtained has transferred
24 you to another website obtainable through the defendant.
25 A. That's correct.
37
1 Q. What does Exhibit 108 show?
2 THE COURT: You say "obtainable through the
3 defendant." I take it you are not meaning to suggest by that
4 that Exhibit 108 is on the defendant's site. Rather, it's a
5 site that you get through clicking, is that right?
6 THE WITNESS: Precisely. The page shown on Exhibit
7 108 is not at the defendant's website. It's at bert's
8 website.
9 Q. And what else does Exhibit 108 show of relevance to your
10 experiment?
11 A. Well, this is a way to obtain DeCSS, because it says this
12 is simply a mirror of the files necessary to decrypt the copy
13 protection built into DVD players. Mirror refers to a site
14 that essentially contains an identical copy of material found
15 on another website. It's common to mirror materials, either
16 whole web sites or portions of websites.
17 The first entry where it says DeCSS.zip says this is
18 the utility used to rip the .VOB files off DVDs to be copied
19 to your hard drive.
20 Now, copying to a hard drive is something that
21 compliant DVD players are not allowed to do, because once the
22 materials are copied to the hard drive they can be freely
23 played, freely edited, freely distributed. So, DeCSS.zip
24 refers to a program or refers to data that has been compressed
25 with a program called Zip, which is commonly used on the
38
1 Internet to reduce the size of files to speed up their
2 transfer.
3 And it's all arranged so that when you click on this
4 link, this DeCSS.zip link, that an automatic procedure is
5 invoked that causes the file to be downloaded to your own
6 computer.
7 (Continued on next page)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
39
1 Q. And was that done?
2 A. That's what we did; yes. We clicked on that link. That's
3 why it shows up in purple, as opposed to being in blue.
4 Q. Let me show you Exhibit 109 and ask whether that is what
5 you obtained after clicking on DeCSS.zip?
6 A. Yes. This is a -- what's shown here I think is probably
7 not the entire screen at the time. This is a blowup of just
8 the file download window that got opened automatically when
9 the DeCSS.zip link was clicked that invokes a utility under
10 Windows that informs the user he has asked to have a file.
11 Downloaded and the system wants to know whether the file
12 should just be opened directly from the web site or saved to
13 the user's own hard disk.
14 We clicked that to save this file to disk. As you
15 can see from the dot inside the radio button where it says
16 "save this file to disk" and then we clicked "O.K."
17 Q. What came on the screen next?
18 A. I think it's Exhibit 110.
19 Actually, it's likely that we were asked to give a
20 file name for the file that we were going to save and I think
21 that's not shown in the screen shot here.
22 Q. What does Exhibit 110 show?
23 A. Exhibit 110 is a screen shot that was captured during the
24 actual download of DeCSS.zip from the lawyer's web site and
25 what it shows is that after we had transferred 38.3 kilobytes,
40
1 only one second estimated remained, and that we had copied
2 already more than half of the file. So, it took about two
3 seconds to do that download.
4 Q. To download DeCSS altogether?
5 A. Yes. Once having selected, we wanted to start the
6 download, the actual download took about two seconds.
7 MR. SIMS: Your Honor, I would offer Exhibit 129,
8 which is Dr. Shamos' CV together with Exhibits 105 to 110.
9 MR. GARBUS: No objection.
10 THE COURT: Received.
11 (Defendant's Exhibits 105 through 110 received in
12 evidence)
13 Q. Did you and your assistant then proceed to use the DeCSS
14 that you had obtained by a link through defendant's web site?
15 A. Yes, we did. The first thing, of course, we had to do was
16 unzip it, so we had to run winzip in order to expand the
17 DeCSS.zip file to something called DeCSS.exe -- DeCSS.
18 When I say "dot," I mean the "period" character.
19 Q. And do you know how long that took?
20 A. The unzipping?
21 Q. And to find the utility?
22 A. Well, yes. We had now advanced from a web site called
23 FM4, what utilities we were going to need to do all of the
24 things we were going to do. So, I stated in my declaration,
25 we obtained off the Internet three pieces of required software
41
1 to do.
2 Q. And what were those pieces of software?
3 A. One of them was winzip, which we knew what was going to be
4 required to decompress files. Another was called FTP207. FTP
5 stands for "file transfer protocol." That software that's
6 used for transfer filings over the Internet.
7 Then mIRC 3.71 is a piece of software for engaging in
8 Internet relay chat. That's a procedure whereby multiple
9 people and also two people on the Internet can basically talk
10 to one another, not through voice, but by typing at their
11 terminals. When one person types, the other person sees what
12 that person is typing.
13 Q. Are these pieces of software which many computer users
14 would already have on their computer?
15 MR. GARBUS: Pardon me. I object to the question.
16 THE COURT: Overruled.
17 A. Not only would many users already have them, but they are
18 freely available over the Internet.
19 Q. How did you use DeCSS with Sleepless in Seattle?
20 A. Well, we inserted it into the DVD drive --
21 Q. I'm sorry?
22 A. We inserted the Sleepless in Seattle DVD into the DVD
23 drive of the laptop and we invoked DeCSS.exe.
24 Q. How long did that process take?
25 A. Well, the invocation was very fast, but we have to go
42
1 through the actual process of descrambling the DVD and the
2 entire process for doing all of this from start to when we
3 finished took about 45 minutes, but the actual processing time
4 to do the descrambling is in the range of 20 to 30 minutes.
5 Q. That is from the moment you applied the DeCSS to Sleepless
6 in Seattle, the descrambling time was?
7 A. That was in the range of 20 to 30 minutes. It was a
8 computationally-intensive process.
9 Q. And what was the result that you obtained from applying
10 DeCSS to a store-bought copy of Sleepless in Seattle?
11 A. Yes, I think we have -- I guess we don't have exhibits
12 here. Well, the result of DeCSS'ing is what are called VOB
13 files, video object files, that are playable through the
14 laptop. And so, we obtained a file of Sleepless in Seattle.
15 The first time we did it, it wasn't complete because
16 the complete VOB file, I believe, is 4.3 gigabytes and we
17 couldn't get the system to create a file larger than four
18 gigabits. But we had a perfectly playable file and we played
19 it and it was the equivalent to the DVD of the movie Sleepless
20 in Seattle.
21 Q. And how did you know that the computer was at that point
22 playing the DeCSS'd version of the store-bought copy rather
23 than the DVD that you had put into the hard drive?
24 A. Oh, because to demonstrate that we specifically removed
25 the DVD from the DVD disk itself of Sleepless in Seattle from
43
1 the DVD drive so the thing could only have been playing from a
2 file that was on the hard disk.
3 Q. Now, are there ways to make the file you obtained, that
4 is, the file of Sleepless in Seattle resulting from the
5 application of DeCSS, are there ways to make that file small?
6 A. Well, not directly by itself, O.K. There are two kinds of
7 ways of making a file smaller. One is referred to as loss
8 less compression. The other is referred to lossy L-O-S-S-Y
9 compression.
10 In loss less compression, enough information is
11 stored about the data so that it can be reconstructed exactly
12 bit for bit. It is not a failing to attempt to do loss less
13 compression on a VOB file, essentially one can't compress it
14 any further.
15 There are, however, ways of compressing the file in
16 the lossy manner so that it can become much smaller. And
17 smaller files are better as long as the visual acuity doesn't
18 suffer because they can be transferred to people faster and
19 more of them can be put on the same media or like DVD's or
20 CD-Roms.
21 Q. In your experience, does doing so require a high degree of
22 expertise?
23 A. When you say "doing so," you mean the process of going --
24 of performing a lossy compression on a VOB file?
25 Q. That's correct.
44
1 A. It requires some degree of expertise. Fortunately, all of
2 that expertise can be acquired through instructional tutorials
3 on the Internet, which is how we did it.
4 Q. And from where did you get the information that told you
5 how to proceed to compress the DeCSS file you had obtained?
6 A. There's a web site called FM4.org that provides that
7 information.
8 Q. Let me put on the chart stand Exhibit 112 and ask you to
9 explain what that is.
10 A. Well, 112 is the home page of FM4.org, as one can
11 determine by again looking at the address line shown in the
12 browser and it says, welcome to FM4.org, free MPEG4. That's
13 F-R-E-E-M-P-E-G-4 as one word -- is a group created to provide
14 you with the best quality new and classic movies encoded with
15 MPEG4 technology.
16 You can join the channels #DiVX point is the number
17 sign character like a music sharp sign -- you can join the
18 channels #DiVX and point free MPEG4 on the EFNET, IRC network
19 to visit us.
20 And then down further at the bottom of the page under
21 the news entry, May 1, 2000, it says, "Big thanks to BCKSPACE
22 for letting me rape his DiVX tutorial."
23 And that DiVX tutorial is a something like that link
24 where one can find out about how to make DiVX's, but because
25 FM4 was able to raise it, it was necessary to go to back
45
1 spaces web site. It could be obtained directly from FM4.org.
2 Q. Did you and your assistant click on the FM4 tutorial?
3 A. Yes.
4 Q. And let me show you Exhibit 113 and ask what that --
5 A. Yes, 113 is the page on the FM4.org web site that contains
6 the tutorial as is fairly clear from again looking at the
7 address line on the browser which shows that it's the FM4.org
8 page named tutorial or it's in the directory tutorial. It's
9 probably default at html or something in, but it's in the
10 tutorial directory.
11 And what this explains is this tutorial will take you
12 through the process of creating your own DiVX movies step by
13 step, credit for the content of this tutorial should go to
14 backspace E for creating the original and allowing me unFKN
15 real -- I don't want to pronounce that as it's intended to be
16 pronounced to modify for FM4. And there are -- then there are
17 five steps listed that one must go through in order to produce
18 a DiVX from a decrypted DVD.
19 Q. And will you read what it says in step 1?
20 A. Step 1: DVD-extraction/decryption: There's a hyperlink
21 DeCSS. It says, to decrypt the *.VOB files on the DVD and
22 copy them to hard disk.
23 Q. And you had already done that?
24 A. We had already obtained DeCSS and done that.
25 MR. GARBUS: I object.
46
1 It seems to me at some point we get into questions of
2 material off the Internet and whether or not that material is
3 or is not hearsay and it seems to me that's a start that we
4 will start to get into and this information is getting from
5 some outside source. And he's presenting it, I presume, for
6 the truth of it.
7 THE COURT: As I understand it, he is presenting it
8 to explain what he did.
9 MR. GARBUS: I presume -- I understand he's doing it
10 for the purpose of the truth of it.
11 MR. SIMS: Only for the truth of what he did.
12 THE COURT: The bottom line is that he is saying that
13 he followed these steps and the result was that he, I assume,
14 had himself a decrypted DiVX movie so he -- it's sort of like
15 a policeman testifying that there was a call over the radio
16 that says there was a holdup at Broadway and 118th Street and
17 he ran as far up Broadway and 118th Street, and lo and behold,
18 there was somebody holding a gun on somebody.
19 And certainly the radio call is not admitted for the
20 truth of the purpose. It's offered to explain why the
21 policeman went to 118th and Broadway and happened to find the
22 robbery. I think this is the same thing; is it not?
23 MR. GARBUS: I don't think, and I can barely read
24 these exhibits with the copies that I have. I think it talks
25 about other people having done other things and other people
47
1 having downloaded films.
2 THE COURT: Yes, look I take it Mr. Himself you're
3 not offering any of that for the truth.
4 MR. SIMS: Absolutely not.
5 MR. GARBUS: Thank you.
6 THE COURT: To that extent, sustained.
7 MR. GARBUS: Thank you.
8 Q. Dr. Shamos, what did you do since you had already
9 performed, you and your assistant, the part of this of getting
10 DeCSS, what did you do next?
11 A. We performed all the remaining steps 2 through 5 on
12 Sleepless in Seattle.
13 Q. And are those reflected in the next series of exhibits
14 that you provided?
15 A. They are.
16 Q. Turn then if you would to Exhibit 114B.
17 THE COURT: Is this B or D?
18 MR. SIMS: 114B.
19 THE COURT: "B" as in boy?
20 MR. SIMS: We skipped over "A" for a moment.
21 A. Well, step 1 is DVD ripping the right way and the advice
22 given on FM4 down in the second paragraph. It says, to start,
23 run DeCSS and starting with the first one going file select,
24 the files to decode from the first to the last file in the
25 series.
48
1 So, the result of running DeCSS is it produces a
2 bunch of files that one can select from those that one wants
3 to make a DiVX of. And we chose the as shown by the screen
4 down there, it tells you how to make that selection.
5 Q. And the ones that are purple on the bottom right, are
6 those the files that you chose -- selected?
7 A. Yes.
8 Q. What did you do next?
9 A. Well, we followed step 2.
10 Q. 114, please.
11 What does Exhibit 114C show?
12 A. 114 is an example that shows how to extract the video
13 portion of the DeCSS to DVD. Of course a video has both video
14 information and audio information and it's necessary in this
15 procedure to extract the video information separately, the
16 audio information separately, and then merge them together and
17 attempt to synchronize them to result in a DiVX that will
18 actually make sense when it's played so that the speech of the
19 actors is properly synchronized with their emotion.
20 Q. And to what extent does the FM4 tutorial lead you through
21 that process?
22 A. Well, completely. I mean, we followed every step in here
23 to the letter.
24 Q. So, you undertook the video extraction as shown on 114C?
25 A. Yes.
49
1 Q. And then, what did you do?
2 A. We went to step 3.
3 Q. Will you put up 114D.
4 What does Exhibit 114D show?
5 A. O.K., Exhibit 114D is step 3 in which one having already
6 extracted the video now must go and extract the audio from the
7 DeCSS DVD and this explains how to do that.
8 Q. What was the next step?
9 A. The next step was step 4.
10 MR. SIMS: 114E, please.
11 A. That's correct. And they refer to this as multiplexing
12 which is basically the process of merging the audio and video
13 together, it says, so now you have an AVI file that has only
14 video and an enormous WAV file. What do you do? And then
15 this shows you what to do in order to merge the two to create
16 a result that's supposed to have some semblance of
17 synchronization.
18 Q. Was there any further step you needed to undertake?
19 A. Yes, the result of this produced what I would -- what I
20 believe are referred to in the declaration as a horribly
21 desynchronized DiVX in which the sound was not occurring at
22 the same time as the action in the movie.
23 Q. And did FM4 explain how to solve that problem?
24 A. Yes, to some extent. There is another --
25 Q. Will you put up 114A.
50
1 Is there an explanation of how to address the
2 desynching problem on 114A?
3 A. Yes, a little bit more than halfway down the page, it
4 says, fixing the desynch. If your video audio does start out
5 synced, but gradually becomes desynched, you can skip this
6 step, etc.
7 What was necessary to do in our case at that time was
8 do a lot of fiddling around with the -- with the audio and
9 video portions in order to get them synchronized properly.
10 This required eliminating the opening trailer of the
11 movie because the opening trailer is recorded at a different
12 frame rate than the movie itself and the process assumes that
13 either one or the other of those speeds is going to be used
14 all the way through. And so by eliminating the opening
15 trailer, we were eventually able to get the DiVX properly
16 synchronized.
17 Q. By "opening trailer," do you mean an advertising for the
18 film?
19 A. The opening trailer typically contains previews of other
20 films and anything that the video company wants you to see
21 before you see the movie.
22 Q. So that the first time that you and your assistant went
23 through this process, how long did it take you altogether to
24 end up with a DiVX'd -- that's DiVX'd?
25 MR. GARBUS: Are you through?
51
1 MR. SIMS: No.
2 Q. -- with a DiVX'd copy of Sleepless in Seattle on the hard
3 drive obtained through DeCSS?
4 MR. GARBUS: Your Honor, I understand when this was
5 done, Mr. Shamos was not there.
6 THE WITNESS: The understanding is not quite correct.
7 I was not there at the moment of completion of the process.
8 Q. Were you there?
9 A. I was present at various times during the process.
10 Q. And where is your office in relationship to your
11 assistant's office?
12 A. It's two offices away, approximately 20 feet.
13 Q. What was -- so, the first time you went through it, you
14 and your assistant weren't through it, how long did the
15 process take?
16 A. The first time we were complete novices and the whole
17 thing took about 20 hours.
18 Q. And much of that was related to the desynching issue that
19 came up?
20 A. Yes.
21 Q. And have you undertaken with Mr. Burns to do it
22 subsequently?
23 A. We have done various experiments. We believe that we can
24 now do it in about 10 hours.
25 Q. What was the end result of the DiVX process?
52
1 A. The end result was a DiVX'd version of Sleepless in
2 Seattle that was substantially smaller than the original by a
3 factor of I recall something like 5.6.
4 THE COURT: 5.6, what, gigabytes?
5 THE WITNESS: No, it was smaller than 20 percent of
6 the size of the original file. It -- the size had been
7 reduced by a factor of 5.6, so it came down to something over
8 700 megabytes.
9 THE COURT: So, what I want to be clear on is what
10 the two comparisons are. Is the starting comparison, that is,
11 the precompression file the file that you had after you ran
12 DeCSS on the DVD?
13 THE WITNESS: Yes, I'll make it -- I will be very
14 specific with the numbers. The video object file, the .VOB
15 file that we obtained by DeCSS Sleepless in Seattle was 4.3
16 gigabytes. After we completed the DiVX process, it was down
17 to 750 megabytes.
18 Q. That's a ratio of about 5.67?
19 A. Yes.
20 Q. Now, have you --
21 THE COURT: How much of that compression was
22 attributable to the elimination of the trailer?
23 THE WITNESS: I think the trailer lasts something
24 like three minutes and the movie lasts close to two hours.
25 It's just a tiny -- tiny percentage.
53
1 Q. And have you and your assistant been able to obtain DiVX
2 copies of DeCSS films in the size of around 650 megabytes?
3 A. Yes, we have by playing with the compression ratio, if you
4 increase the compression ratio higher than 5.67, then you can
5 get it down to and the objective of all of this is to get it
6 down so that it fit on one CD-ROM and CD players and CD-ROM
7 recorders are readily available through computer stores, so we
8 fiddled through it to get it down.
9 MR. GARBUS: My understanding is this was done
10 without this witness' knowledge and while he was in Hawaii.
11 It was not done at his direction. It was not part of this
12 experiment. It was not part of the -- done under his
13 supervision.
14 THE WITNESS: Nevertheless, I did see the result and
15 I have no reason to disbelieve my assistant of two and a half
16 years.
17 THE COURT: Go ahead, Mr. Sims. This is a matter of
18 cross-examination, Counsel.
19 Q. Does DiVX work directly on CSS encrypted DVD movies?
20 A. I'm sorry. Could you repeat --
21 Q. Can you obtain an intelligible perceptually useful version
22 of a film if you apply DiVX to a store-bought DVD?
23 MR. GARBUS: I object to the form of the question.
24 THE COURT: I don't understand the question.
25 Sustained.
54
1 Q. Dr. Shamos, if you attempted to attempt to compress
2 Sleepless in Seattle as you bought it directly from the store
3 having -- would it be possible to compress the store-bought
4 version encrypted of Sleepless in Seattle?
5 A. If we did not attempt to do so.
6 Q. Would it be possible?
7 A. If we tried to do so, I don't know if the tools available
8 to us would even do the processing, but if it did the
9 processing, garbage would result because there would be no way
10 to decrypt or descramble the material on the DVD.
11 THE COURT: It would be useful at this point, Dr.
12 Shamos, for you to place what the DiVX acronym or whatever it
13 is means and what precisely it is.
14 THE WITNESS: Certainly. There are a number of
15 compression technologies that are used on video. The whole
16 idea is that visual information on a computer requires a huge
17 amount of storage space because each individual little square
18 on the screen. What we refer as pixels, information must be
19 stored about the brightness of the pixel and exactly what the
20 color composition of the pixel is.
21 And in order to achieve high resolution images, a
22 tremendous number of pixels are required, therefore, the size
23 of the single frame in the video is large. What this results
24 in is unless compression is performed, an entire video takes
25 up so much digital storage space that there is no medium on
55
1 which it can be delivered.
2 We don't have that technology right now at any
3 affordable price, so it's always necessary to compress the
4 videos. And there is an organization called the Motion
5 Picture Experts Group, MPEG, which has been doing studies for
6 a long time on how one can compress video in such a way that
7 even though it is lossy, none of the -- or very little of the
8 visual quality is lost to the human being.
9 And this is done by a process called perceptal
10 encoding. Cognitive psychologists have studied the human
11 visual system and they know the ways in which the human eye is
12 sensitive to certain things.
13 For example, the human eye is insensitive to small,
14 slow changes in color, but it is extremely sensitive to
15 changes in contrast. That's what enables us to pick out edges
16 of objects.
17 So, in perceptual encoding, which is used in MPEG,
18 that information from the video stream is eliminated that a
19 human being cannot see. Therefore, if you can't see it, even
20 though there's less information there, it still looks as good.
21 MR. GARBUS: Your Honor, so far as I know, this
22 witness has never written on MPEG, has never testified with
23 respect to MPEG and is not an expert on MPEG, which is a very
24 different area than the other areas we've been going through.
25 THE WITNESS: I lecture 50 times a year on
56
1 compression technologies.
2 THE COURT: I'm going to hear the attorney. If you
3 have other testimony on this subject, I will hear yours as
4 well.
5 And, Dr. Shamos, we will do better here if you don't
6 argue with Mr. Garbus.
7 THE WITNESS: I'm sorry, your Honor.
8 Q. Dr. Shamos, once the movie has been subject to DeCSS --
9 A. I hadn't completed the answer.
10 Q. I'm sorry. Excuse me.
11 A. And so, DVDs are compressed -- the video stream from the
12 original Hollywood movie, in order to create a DVD of it is
13 compressed using a format called MPEG2 which came from the
14 Motion Picture Experts Group.
15 There are subsequent compression technologies which
16 achieve a higher degree of compression, in particular MPEG4,
17 which is an encoding that has the encoder for which has
18 apparently been stolen and is not referred to as DiVX in the
19 underground world.
20 Q. Once a movie on a DVD has been subjected to DeCSS and then
21 compressed through the use of DiVX'd, does it take the 20
22 hours or the 10 hours that your assistant eventually got it
23 down to to be able to -- does the process that took either 20
24 hours or 10 hours have to be gone through again?
25 A. No. That one could think of that as sunken costs, sort of
57
1 like the cost of actually producing the movie in Hollywood in
2 the first place. Once that's done and copies of it exists,
3 copies could be readily distributed around.
4 Q. Is it possible for you to demonstrate here today the
5 respective perceptual quality of the store-bought DVD as
6 compared with the version that you obtained through the
7 experiment you just have been testifying about?
8 A. Yes, it is. My assistant, Eric Burns, is here and he's
9 prepared to operate the very laptop that we used to do all of
10 this and show it on the screen in the courtroom.
11 THE COURT: Before we do that, we are going to take a
12 recess for about 15 minutes.
13 (Recess)
14 THE COURT: Just to be clear, folks, we are going to
15 continue to use the jury box for you, only so long as there
16 are too many people to fit if the back. You will have to move
17 if space opens up.
18 But let's go ahead.
19 MR. SIMS: Thank you, your Honor.
20 DIRECT EXAMINATION Continued
21 BY MR. SIMS:
22 Q. I think, Dr. Shamos, I was about to ask or I did ask,
23 where you could demonstrate the prospective perceptual quality
24 of the store-bought Sleepless in Seattle to use a different
25 example and the DiVX'd DeCSS version that you obtained through
58
1 your experiment. This is Eric Burns, your assistant?
2 A. That's correct.
3 MR. SIMS: And, your Honor, if we might -- if we
4 might, we would like to show first the -- a minute or so of
5 the authorized DVD and then the DiVX'd DeCSS version. Mr.
6 Burns has been handed a store-bought copy. I showed
7 it to Mr. Hernstadt and asked if I had his permission, which
8 he graciously gave for us to break the seal while the break
9 was taking place so we could move things along.
10 THE COURT: Mr. Garbus?
11 MR. GARBUS: I would object. What they're doing is
12 they are showing it on a particular instrument that is not the
13 kind of computer screen that people allegedly look at these
14 when they are downloaded. So, the relationship of how you see
15 it here has nothing, nothing, to do with how it would look on
16 a computer screen.
17 They can, if they want to make this demonstration,
18 bring in a large computer screen, but this is not that. You
19 will not see what a person will see on a computer and there's
20 absolutely no reason why they haven't brought in a large
21 computer other than to mislead the Court as to what you see
22 when you see a downloaded film.
23 THE COURT: Well, I assume that you will address
24 those questions to the witness on cross and you will hear the
25 witness' testimony about what, if any, difference there is
59
1 between this screen and any other screen, and if you then want
2 to produce a witness to testify that a different screen would
3 produce a different result, you can do that. And if you want
4 to bring in a different screen and have the thing played for
5 me, you can do that as well.
6 MR. GARBUS: As you know, just to keep clear the
7 issues between us, we had no foreknowledge of this. This was
8 never discussed at his testimony that such an exhibit was
9 going to -- such a demonstration was going to be made, that we
10 met Mr. Shamos the first time on Saturday.
11 As of now, I don't even have, I don't think, though
12 some people in my office may have his full deposition
13 transcript, if we are to make arrangements either to get to
14 cross-examination concerning this exhibit or the chance to
15 show what a viewer of a personal computer would see.
16 At an appropriate time, I would request a continuance
17 so that we could do that.
18 THE COURT: Go ahead, Mr. Sims.
19 MR. SIMS: Thank you, your Honor.
20 And by the way, Mr. Burns has in front of him the
21 Sony computer that the experiment was performed on.
22 THE COURT: I really would prefer to hear the
23 evidence from the witnesses on the stand, not from the
24 lawyers, either you or Mr. Garbus.
25 MR. SIMS: I would just invite your Honor to look at
60
1 that screen during the demonstration, if you would like to.
2 Q. Dr. Shamos, can you with your assistant show us first what
3 a minute or so of the store-bought version looks like.
4 THE COURT: Well, just a minute. Would that obviate
5 your problem, Mr. Garbus, if I looked at the laptop here
6 rather than that screen?
7 THE WITNESS: If it may assist the Court.
8 THE COURT: No, please just a minute.
9 MR. GARBUS: I think it would help.
10 THE COURT: All right. I will do that.
11 THE WITNESS: The only issue, your Honor, is we can't
12 show it on both screens at the same time.
13 THE COURT: We will show it here.
14 THE WITNESS: It's one or the other. In order to do
15 that, it is simply necessary to insert the authorized
16 Sleepless in Seattle DVD into the DVD drive and it will
17 automatically begin playing. Then in order to do the
18 comparison with the DiVX'd that we made, it would be necessary
19 to skip directly to the film itself, as opposed to watching
20 the whole opening trailer.
21 (Video played)
22 MR. SIMS: There's the opening trailer. And Eric
23 will stop the video and then skip directly to the movie. And
24 full screen it.
25 Q. Dr. Shamos, is there a difference in perceptual quality
61
1 depending on who is doing the laptop screening?
2 A. It's very popular with a laptop to be directly on axis, to
3 be perpendicular to the screen and hopefully in the center of
4 the screen, which would not be necessary with a TV set.
5 Q. Dr. Shamos, can you see the screen and narrate what it is?
6 A. I could do it if I came down there, but.
7 THE COURT: Come on down.
8 A. Well, this is the opening scene of Sleepless in Seattle
9 and I think we are going to look at this until just about the
10 opening credits begin to see a variety of different kinds of
11 scenes.
12 This is a long shot. Then we are going to take a
13 closeup of human faces and some exceptional detailing in the
14 movie, which is achievable with DVD.
15 Q. If you would, as we go along just point out the qualities
16 of the picture that you think are worth pointing out.
17 THE COURT: Let's not turn up the sound.
18 A. Later on, we can see the shrubbery in the background is
19 shown. There's a high degree of details with the flowers back
20 here and for, if it's in focus, which that is, this is not the
21 highly detailed also with the shrubbery.
22 Then there's a point in this scene where a reflection
23 appears in the glass over there of exceptionally high detail.
24 In general, because of the DVD quality, everything is of a
25 high degree of sharpness.
62
1 THE COURT: Have we seen enough of this one?
2 THE WITNESS: I think that's sufficient.
3 Q. Now, Dr. Shamos, can you have Eric copy by the way of
4 Sleepless of Seattle is Exhibit 2? Can you have him play the
5 version of Sleepless in Seattle that came through the DeCSS?
6 A. Wait. Please remove the authorized DVD from the drive.
7 Take it out, and put it off to the side.
8 THE COURT: The record will reflect that it has been
9 removed.
10 A. And leave the DVD open and please place the DiVX'd file
11 that we created.
12 It is possible that upon close examination to find
13 certain effects in here that are referred to as artifacts
14 which are differences between the DVD quality and the DiVX'd
15 quality. I'll try to point out some of them, although it's
16 extremely difficult to find them.
17 We've conducted numerous lay experiments in which we
18 asked people to come in the room and tell whether or not this
19 was a DVD or DiVX.
20 THE COURT: That's obviously hearsay.
21 THE WITNESS: Eric, if you see any artifacts that I'm
22 missing, please point them out.
23 MR. HERNSTADT: We object.
24 THE COURT: No, sustained. Objection sustained.
25 The flowers look substantially identical from the way
63
1 they looked on the DVD. And we can look again at the
2 reflection in the glass that I pointed out earlier. It's the
3 same.
4 A. That reflection is substantially the same. I thought I
5 spotted a couple of artifacts in the back area. This wall
6 should be a constant texture and color. There's some tiny
7 changes where a little bit red showed up and it was time
8 varying. So, there was something obviously wrong because the
9 wall itself was not changing or moving during that time.
10 In general, one can look at large areas of constant
11 color and see motion where there shouldn't be motion and I'm
12 not seeing that right now, but that did happen with the wall
13 behind a little bit earlier.
14 THE COURT: O.K. You may go back to the witness
15 stand. Thank you, Dr. Shamos.
16 (The witness resumes the stand)
17 BY MR. SIMS:
18 Q. Dr. Shamos, do you have an opinion as to the quality
19 available to viewers in terms of perceptual quality of the
20 DiVX'd DeCSS version as compared to the store-bought version?
21 MR. GARBUS: Your Honor, I'm going to object.
22 It seems to me that this is certainly not within the
23 area of his expertise.
24 THE COURT: I'm going to receive it for what it's
25 worth, but I understand your point, Mr. Garbus. It's really a
64
1 question for me to decide anyway, I think to the extent it's
2 material.
3 A. There are many different compression ratios one might
4 choose in order to make a DiVX. So, I don't think it's
5 possible to make a general statement that DiVX is comparable
6 in quality or not comparable in quality to a DVD.
7 What I think we've just demonstrated and it's not my
8 opinion, but anybody, including the Court, who observed it
9 that at this compression ratio, 5.67 on this movie, that the
10 quality of the DiVX was nearly indistinguishable from the DVD
11 except possibly to an expert.
12 MR. SIMS: Your Honor, I would like to offer Exhibits
13 112, 113, 114B, 114C, 114D, 114E, 114A, 2, and 111; 111 being
14 the -- I believe being the Sleepless in Seattle DiVX DeCSS
15 version.
16 THE COURT: Well in what form does that manifest
17 itself?
18 MR. HART: We've burned that to CD-ROM.
19 THE COURT: Where is it?
20 MR. SIMS: Eric, do you have this -- I'm sorry.
21 MR. GARBUS: Your Honor, I presume since I don't know
22 how that was made that we could save that for
23 cross-examination, so I can reserve my right, and with respect
24 to the other documents that are going in, I've previously made
25 an objection, which I believe the Court has sustained with
65
1 respect to that which is hearsay, so that subject to that
2 continuing objection, the documents I will permit them to go
3 in.
4 THE COURT: Well, the others are the screen shots;
5 right?
6 MR. GARBUS: I thought 112 was going in.
7 THE COURT: Right, these are screen shots.
8 MR. GARBUS: Which has information on it.
9 THE COURT: I'm just trying to find out what they
10 are.
11 MR. SIMS: They are, your Honor, for example, the FM4
12 materials and as you've indicated and it was certainly our
13 intention they're offered, not for the truth of particular
14 statements therein, but as the -- they provided the
15 instructions that Dr. Shamos followed.
16 THE COURT: I understand. So, Plaintiff's 112, 113
17 and 114A through E and 2 are received.
18 (Plaintiff's Exhibits 112, 113, 114A through 114E,
19 and 2 received in evidence)
20 THE COURT: I'm going to reserve on 111.
21 112 to 114A are received subject to the same
22 limitation as before and I take it fundamentally, Mr. Garbus,
23 the point here is if maybe in a better analogy, if somebody
24 tells you the combination to the vault at Chase Manhattan,
25 your repetition of that doesn't prove that's the combination
66
1 to the vault. Your testimony that somebody gave it to you,
2 you went there, you tried the combination and the vault
3 opened, that's evidence.
4 MR. GARBUS: I agree, your Honor. Thank you.
5 (Continued on next page)
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67
1 BY MR. SIMS:
2 Q. Dr. Shamos, by the way, how was the content of the
3 Sleepless in Seattle on Exhibit 111 placed onto that CD-ROM?
4 A. Yes, Eric went out yesterday and purchased a CD-ROM
5 burner, an external CD-ROM burner that could be attached to
6 the Sony laptop. We have the burner with us here in court
7 today. He connected it and I was present during the process
8 as the CD-ROM was burned with the DiVX box.
9 MR. GARBUS: Can we at the lunch break examine both
10 the CD-ROM and the burner that was utilized to make this?
11 THE COURT: I take it there is no objection.
12 MR. SIMS: No objection.
13 THE COURT: Certainly.
14 MR. GARBUS: And of course the exhibit itself.
15 Q. Now, Dr. Shamos, let me move to a related subject which is
16 the electronic transfer of movies that have been obtained by
17 the process you have testified to over the last hour or so.
18 First, did you attempt to obtain DiVX motion pictures
19 from other websites?
20 A. We did.
21 Q. What did you do?
22 A. I had Eric go on internet relay chat into the chat room
23 pound detective investigation, which is recommended by FM4.org
24 as a source of DiVX investigation.
25 Q. What is Internet relay chat?
68
1 A. That's a program and facility that allows people on the
2 Internet to communicate via the keyboard with one another.
3 MR. GARBUS: I guess I have a continuing objection to
4 things that this witness did not do but that other people did,
5 even if Mr. Burns is his assistant.
6 THE COURT: Before I know what the point of the
7 testimony is, I don't know whether it's appropriate under 703,
8 I don't know whether it's being offered for the truth and to
9 what extent, and so it's really very difficult for me to deal
10 with this in the abstract. If we get to a specific point on
11 which you want to make a point, feel free to make it, but I
12 can't do it in the abstract.
13 MR. GARBUS: Thank you.
14 THE WITNESS: If there is a pending question, I need
15 it repeated.
16 Q. No, I'm getting a new question. Thank you. What led you
17 to decide to try to obtain a DiVX'd motion picture off the
18 internet?
19 A. Well, that is what Mr. Hart asked, whether we could
20 successfully do that.
21 Q. And what did you ask your assistant, if anything, to do to
22 obtain such a film?
23 A. Go on internet relay chat and try to find somebody who
24 would be willing to furnish us with a DiVX.
25 Q. And did he do so?
69
1 A. Yes.
2 Q. Did he do so under your supervision?
3 A. He did so under my direction. I was not present for the
4 entire Internet relay chat session.
5 Q. How do you know that he obtained a motion picture that had
6 been DiVX'd as a result of his engaging in the Internet relay
7 chat?
8 A. Yes, because a log was made of the Internet relay chat,
9 which is one of our exhibits, and I have no reason to believe
10 that that log was fabricated. And it resulted in the transfer
11 of DiVXs in both directions between us and the person who was
12 willing to supply a DiVX.
13 Q. Let me show you what has been marked as Exhibit 115A.
14 MR. SIMS: Your Honor, in the book there are two
15 pages. We are only offering one, and I am handing the
16 reporter and the witness that.
17 THE COURT: Mr. Garbus?
18 MR. GARBUS: I would just like to see that exhibit.
19 I think as I understand this now, it's more
20 appropriate for cross.
21 THE COURT: All right. Thank you.
22 Q. Could you identify 115A, please.
23 A. Yes, 115A is a print-out of the log of the Internet relay
24 chat session in which we obtained the movie the Matrix from
25 another individual on the Internet.
70
1 Q. I want to point out a few aspects of 115A and ask you to
2 identify what they indicate to you.
3 A. Yes.
4 Q. First, there is a session start. What does that reflect?
5 A. Okay. What happens is on Internet relay chat one goes
6 into a chat room where many people can read and see on their
7 screen what people are doing and what people are typing.
8 MR. GARBUS: I don't want to persist in the
9 objections. I understand this witness's testimony, he didn't
10 do this, he didn't do the Internet chat, his expert did it.
11 So far as I know from his deposition, this witness has never
12 been on the Internet chat room.
13 MR. SIMS: Your Honor, right now I have the witness
14 explaining what a session log of an Internet chat session
15 looks like. I believe he is qualified.
16 THE COURT: If he is qualified to do that.
17 Q. Dr. Shamos, what is the time on the top line signal?
18 THE COURT: Look, let me ask this before that.
19 What's the basis of your knowledge about Internet relay chat
20 and what session start and the other indications on this page
21 is?
22 THE WITNESS: In my courses I teach various Internet
23 protocols. Internet relay chat is one I teach. I'm not a
24 regular user of Internet relay chat myself.
25 THE COURT: All right. Overruled. Go ahead.
71
1 Q. What does the session start time reflect?
2 A. Let me explain how it works. Initially when one goes into
3 a chat room, that gives many people on the Internet the
4 ability to simultaneously communicate with one another.
5 Once two of them decide they would like to continue
6 an interaction privately, that's what "session start"
7 indicates. So, the session started when my assistant Eric,
8 whose name for the purposes of this chat is VaioBoy, engaged
9 with someone named air row sell, AEROSOL, after having
10 previously found air sole through the public chat. So session
11 start with whether the two of them get down to by and are
12 going to discuss exchanging DiVXs.
13 Q. And VaioBoy refers to the name of the computer that you
14 and your assistant had purchased?
15 A. Well, he had to make up a name or a handle for himself,
16 and since he was on the Sony Vaio computer, he called himself
17 VaioBoy.
18 Q. Who is eaRoSoL?
19 A. I don't know. EaRoSoL is an individual who was in the
20 chat room who offered to exchange DiVX with us.
21 Q. The person communicating with eaRoSoL as indicated on this
22 page the handle changes from VaioBoy to VaioKid some way
23 through this page. Can you explain what that indicates?
24 A. Yes, that's correct. Approximately one third of the way
25 down the page there is a change in handle from VaioBoy to
72
1 VaioKid, but there is no overt indication of that other than
2 the fact that the name changes.
3 What happened there is that the two of them had to
4 make an agreement as to how the transfer was going to occur,
5 and at the time Eric was using a wireless card in his
6 computer. The wireless card didn't provide sufficient
7 bandwidth, so he wanted to change over to a land Ethernet
8 line, and so he had to disconnect out of the chat room. When
9 he reconnected, the Internet relay chat didn't recognize that
10 he had left, and when he attempted to use the same name again,
11 it instead defaulted to his default name which was VaioKid,
12 which is what he specified originally at the beginning of the
13 chat session.
14 You specify a primary name and a secondary name. It
15 automatically defaulted to VaioKid. He didn't have to do
16 anything explicit in order to make that happen. But VaioBoy
17 and VaioKid are the same person here, they are both Eric.
18 Q. Is the work that Mr. Burns did in terms of participating
19 in this chat and his record to you the sort of thing that
20 computer science professors and teachers and consultants such
21 as you are would rely on and do rely on?
22 A. Well, I can explain the basis for my reliance.
23 MR. GARBUS: It's a bit leading. I object.
24 THE COURT: As to leading, it's overruled. But I
25 think that it's still kind of out there in space in terms of
73
1 bringing to bear on anything specific here --
2 MR. SIMS: I will.
3 THE COURT: -- or for what purpose.
4 Q. Would you explain the basis of your reliance?
5 THE COURT: Start by telling us what you relied on it
6 for.
7 THE WITNESS: I rely on it as being an accurate
8 transcript of what went on between Eric and eaRoSoL, and I
9 also look at the language of it and the kind of information
10 that is being exchanged, the various numbers that are in there
11 and the fact that at the end of it a DiVX of the Matrix, which
12 we previously did not have and never accquired from any other
13 place, existed on the hard drive.
14 MR. SIMS: The purpose of this, your Honor, is just
15 to show that the film --
16 THE COURT: I understand. It's chain of custody
17 evidence in the electronic era.
18 MR. SIMS: Exactly. Thank you, your Honor.
19 Q. Is the chat log accurate and complete?
20 A. Well, the chat log is accurate and the chat log is
21 complete as it records the beginning of the private session
22 between eaRoSoL and VaioBoy.
23 Q. Was there part of the conversation that is not reflected
24 on 115A?
25 A. There is not part of the conversation between the two of
74
1 them. The part of the conversation in which Eric located
2 eaRoSoL took place over a period of about 20 minutes prior to
3 this in which he had to find somebody who was willing to
4 exchange a DiVX with him. That's not here.
5 Q. Why is it that the session log maintained on the computer
6 omits that portion?
7 A. Well, this is a log feature of Internet relay chat. It
8 records this log separate.
9 Q. And what was the line preceding what is represented here
10 which led eaRoSoL to participate in the conversation, which
11 prompted eaRoSoL to participate in a conversation?
12 A. Yes. In my declaration, since the dialog appears to begin
13 in the middle of nowhere, with this person eaRoSoL suddenly
14 showing up and saying, sure, etc., it appears to be in
15 response to a question. I thought that for counsel and the
16 Court, that log itself would be confusing, so I asked Eric
17 what was the line immediately preceding the initiation of the
18 private chat that would lead eaRoSoL to say "sure." And that
19 line was "Anyone have any DiVXs to trade for Sleepless in
20 Seattle?"
21 THE COURT: Well, how do you know that?
22 THE WITNESS: I only know it because Eric told me.
23 THE COURT: All right. Well, I think there it is
24 offered for the truth, and if there is an objection, it's
25 sustained.
75
1 MR. HERNSTADT: There is an objection.
2 THE COURT: Sustained.
3 MR. SIMS: If I may, subject to tying it up, I will
4 put Mr. Burns on the stand for the purposes of asking that
5 question.
6 THE COURT: I have an even better suggestion. Over
7 the lunch break, why don't you, Mr. Hernstadt and Mr. Garbus
8 see if you can't agree that if called he would give that piece
9 of testimony.
10 MR. SIMS: Thank you, your Honor.
11 MR. GARBUS: You should know that we had asked over
12 the weekend to depose him. We had also insisted that he be in
13 court today, and we would like to take an opportunity to
14 depose him.
15 THE COURT: He is here. I am going to deal with that
16 later. Discovery is over in this case, but maybe there are
17 special grounds to permit it. I will hear that at the end of
18 the day.
19 Go ahead, Mr. Sims.
20 Q. Did you and your assistant Mr. Burns proceed to download
21 the Matrix from eaRoSoL?
22 A. Yes, as reflected by the log, what happens here is they
23 are making an agreement on what kind of equipment they are
24 going to use, what kind of connection they are going to have
25 and what is going to be traded for what, so this is an even
76
1 Steven exchange in which we give up a Sleepless in Seattle and
2 we receive a Matrix in return.
3 Q. Do you know how long it took your assistant to download
4 Matrix from eaRoSoL?
5 A. Yes, it took six hours approximately.
6 THE COURT: How do you know that?
7 THE WITNESS: I know it in two ways. He has told me
8 it, but also I was in my office during the time of the
9 transfer and was regularly coming into his office saying how
10 is it going, how is it going, and sometime somewhat more than
11 six hours after it began I went in and it was finished.
12 THE COURT: All right. On the second basis?
13 MR. GARBUS: I object to it.
14 Q. Do you know what the technical parameters of the
15 connection were?
16 A. Yes.
17 Q. What were they?
18 THE COURT: Let me just back up. Did you observe the
19 download begin?
20 THE WITNESS: No.
21 THE COURT: Did you observe it end?
22 THE WITNESS: No.
23 THE COURT: So whatever you are telling me about how
24 long it took is what your colleague told you, is that right?
25 THE WITNESS: No, it can't be any longer than what
77
1 I'm testifying to, because I observed before it began and I
2 observed after it ended, and that period was approximately in
3 the range of six hours.
4 THE COURT: Mr. Garbus?
5 THE WITNESS: It could have been less. It couldn't
6 have been more.
7 MR. GARBUS: If there is a log, I would like to see
8 it. I object to the testimony. He wasn't there.
9 THE COURT: Well, it seems to me that based on what
10 the witness has just said he has a basis in personal knowledge
11 at least for the purpose of admissibility for testifying that
12 it didn't take more than six hours. I do not accept because
13 of the hearsay rule his testimony about what Mr. Burns told
14 him. That's the ruling.
15 MR. GARBUS: Thank you.
16 A. So, the technical parameters here were that we believe
17 that eaRoSoL was in the State of Connecticut and had a cable
18 modem connection. The reason for that is the IP address
19 listed for him here going to --
20 THE COURT: Mr. Garbus, excuse me. Mr. Garbus?
21 MR. GARBUS: Objection.
22 THE COURT: Sustained. That answer is stricken. I
23 don't even think it was responsive to a question. Mr. Sims?
24 Q. Do you have any information or way to calculate the
25 technical parameters of eaRoSoL's connection?
78
1 A. Well, we better be specific about what technical
2 parameters we are talking about. If you are talking about the
3 bandwidth available to eaRoSoL, then we can only surmise. If
4 you're talking about the actual bit rate that was achieved
5 during the transfer, that's easy to measure because we know
6 how many bits were transferred and how long it took to do
7 that.
8 Q. What was the effective bandwidth of the transfer of the
9 Matrix from eaRoSoL?
10 A. We were getting about 250 kilobits per second. The way
11 you calculate that is to take the size of the file that was
12 transferred, divide by the number of seconds in six hours.
13 MR. GARBUS: Your Honor, I suppose we could save it
14 for cross-examination, but there are so many variables with
15 respect to that answer, namely what time of day this happened,
16 what were the various media, what time did the upload start.
17 THE COURT: I think you should save it for cross. I
18 appreciate your being helpful on this point, but I'm well
19 aware a lot of things affect transfer rates.
20 Q. Dr. Shamos, you testified that you knew from your personal
21 presence in the room at various points that the transfer of
22 the film took approximately six hours, that is, transfer of
23 the Matrix.
24 A. Yes.
25 Q. Was anything else being transferred on that line at the
79
1 same time?
2 A. There was a simultaneous transfer in both directions. We
3 were transferring Sleepless in Seattle up to aeRoSoL, and
4 eaRoSoL was transferring the Matrix down to us simultaneously.
5 Q. And within that six hour period were both films
6 transmitted?
7 A. Yes.
8 Q. What is the Internet connection that your assistant had
9 during the transfer?
10 MR. GARBUS: If I may, with respect to both films
11 being transmitted I presume that comes from information from
12 Mr. Burns.
13 THE WITNESS: No, that comes from my observation
14 after having entered the room after Mr. Burns was finished.
15 THE COURT: Go ahead.
16 Q. What Internet connection did your assistant have during
17 this transfer and how do you know that?
18 A. He was in his office with this machine connected to CMU's
19 100 megabit switch network. The limiting factor in this
20 transfer obviously --
21 MR. GARBUS: I object. That is not the Internet
22 connection.
23 THE COURT: Look, Mr. Garbus, I understand that's
24 your cross-examination point, but it isn't an objection. It's
25 not a ground for objection. If a witness says that I observed
80
1 someone transfer heroin, it is not a proper objection to say
2 no, he didn't.
3 Q. Dr. Shamos, can you perform a demonstration similar to the
4 one that was done a few moments ago of the authorized store
5 bought DVD copy of the Matrix with the DiVX copy that you and
6 your assistant testified to downloaded from eaRoSoL?
7 A. Yes, in exactly the same manner. It will start with an
8 authorized DVD of the Matrix and show a scene that is
9 completely different in nature from the scenes in Sleepless in
10 Seattle. The quality of DiVXing depends on various factors
11 including the original scene that is being transferred. So,
12 for example, scenes that have a high degree of action are
13 difficult to compress because the scene is changing so
14 quickly. And the Matrix in distinction to Sleepless in
15 Seattle has a lot of very fast action, bullets flying and
16 rotary blades, so we will take a look at that one.
17 Q. I am going to hand up Exhibit 115D and ask you if you know
18 what this is.
19 A. Yes, 115D is a CD-ROM that was burned again using the
20 CD-ROM burner attached to the same Sony laptop, and it
21 contains the DiVX of the Matrix that we obtained from eaRoSoL.
22 Q. Were you in the room yesterday when that burning took
23 place?
24 A. Yes, I was.
25 MR. SIMS: And I am going to hand to Mr. Burns, if I
81
1 might, Exhibit 2.34. It's one of the DVDs in Exhibit 2, a
2 store bought copy with a cellophane wrapper of Matrix.
3 THE COURT: 2.34?
4 MR. SIMS: Well, Exhibit 2 is on the Exhibit list,
5 and there were a number of DVDs and we will supply you with --
6 THE COURT: What was the Exhibit 2 that I already
7 admitted without any qualification?
8 MR. HART: Sleepless in Seattle.
9 MR. SIMS: I will supply that, your Honor.
10 THE COURT: Let's get that straightened out at the
11 lunch break.
12 MR. GARBUS: Here again the burned CD I will have a
13 chance to look at it over the lunch break, and the burner.
14 THE COURT: Yes, of course. We will take a brief
15 comfort break. Five minutes.
16 (Recess)
17 THE COURT: Just for your guidance, we are going to
18 break for lunch at 12:15 and resume at 2 to give you a little
19 more time, Mr. Garbus, to examine the disks, so I will be in a
20 position to file the opinion by 2 o'clock.
21 MR. GARBUS: I should say also, your Honor, with
22 respect to the disks, I think we got them this morning. I
23 don't know. We will take a look at it. It's absolutely clear
24 to me that we will probably need some time.
25 MR. HERNSTADT: The disks that you were given are
82
1 different than the disks that we were given. They were burned
2 at a different time, so we would like to compare them all.
3 That's all.
4 THE COURT: All right. You will have that
5 opportunity.
6 MR. HERNSTADT: Thank you, Judge.
7 THE COURT: All right, Mr. Sims.
8 BY MR. SIMS:
9 Q. Dr. Shamos, could you and your assistant perform a
10 comparison of the exhibit of the Matrix that has just been
11 marked as an exhibit, the store bought copy of the Matrix that
12 has been marked, so that the Court can look at that and then
13 look at the DiVX copy of the Matrix obtained from eaRoSoL.
14 A. Yes, we can do that the same way we did Sleepless in
15 Seattle if we go down to the laptop.
16 MR. SIMS: With the judge's permission, we will
17 surround the Sony computer and you can narrate.
18 THE COURT: If there is going to be a lot more of
19 this -- this is it? Because I was going to suggest you agree
20 on a monitor so we don't have to rearrange the courtroom.
21 MR. SIMS: We have set that one up so it will read
22 like a TV screen.
23 THE WITNESS: What is happening now is Eric has
24 inserted the film the Matrix, the authorized DVD of the Matrix
25 into the DVD drive.
83
1 THE COURT: That's Exhibit 2.34, as I understand it,
2 right?
3 MR. GARBUS: Your Honor, if you want, given the fact
4 that we have already been through this process once, if it
5 makes it easier to now look at it off the screen.
6 THE COURT: If that's okay with you, we will do it
7 that way. This exhibit is 2.34. That's the store bought copy
8 of the Matrix. We are going to mark the disk itself before
9 the day is out.
10 And I take it, counsel, just for my guidance, if I
11 take these disks and I stick them in the disk drive in my home
12 computer which I got from mail order just like everybody else,
13 they should play, right, and I can look at them on my own
14 screen.
15 MR. SIMS: I'm going to ask Dr. Shamos to answer that
16 question.
17 THE WITNESS: They will play if you have a compliant
18 player.
19 THE COURT: Well, I have no idea.
20 MR. SIMS: We have some computer experts here.
21 For the record, the copy of Sleepless in Seattle
22 which is store bought is 2.28. There is in your binder a
23 photocopy of the cover.
24 THE COURT: 2.38?
25 MR. SIMS: 2.28. Sleepless in Seattle.
84
1 THE COURT: Okay. Thank you. So the record will
2 reflect that it is 2.28 that I received earlier, not 2.
3 Proceed.
4 BY MR. SIMS:
5 Q. Mr. Burns, I notice that you have broken the seal on the
6 store bought copy of the Matrix and put it into the hard
7 drive. Dr. Shamos, would you continue the demonstration.
8 A. Yes. Please start it by just closing the CD-ROM door.
9 Now, we have chosen a portion of the movie that's
10 particularly difficult to compress, one that has a lot of
11 action and scene changes. So, if you would go to, when it
12 starts, to the chapter that we have decided to display,
13 although we are perfectly prepared to display any portion of
14 the movie --
15 THE COURT: I am going to come down anyway, because
16 my eyes aren't that good.
17 A. What will happen is there is not only a lot of action but
18 numerous special effects are also taking place.
19 THE COURT: Lower the sound, please.
20 (DVD played)
21 Q. Dr. Shamos, when you want it switched over, just tell me.
22 A. I think that's enough.
23 Now, if you could attempt to find the same place in
24 the DiVX that was obtained from eaRoSoL and play that, please.
25 I am going to attempt to point out to the Court the DiVXs
85
1 artifacts that I see in the frame. There are some. There are
2 more than there are in Sleepless in Seattle.
3 Q. Eric, will you take the DVD out -- let the record reflect
4 that the DVD was removed and that the DVD door is open.
5 THE COURT: It so reflects.
6 Would you pause it? Pause it, please.
7 MR. GARBUS: Even a third suggestion, even if it's
8 possible, if we can watch it here and there at the same time.
9 Is that possible? If that's possible, then you could see the
10 difference between the two technologies.
11 THE COURT: It's one or the other right now?
12 MR. HART: Yes.
13 MR. GARBUS: Is there a way of setting it up so you
14 can watch both simultaneously?
15 THE COURT: Let me ask you this. I was serious about
16 the question I asked before. Does anybody have any objection
17 to my looking at these two things on my own home computer and,
18 if not, is there any reason to suppose that that will produce
19 an appropriate conclusion, whatever it is?
20 MR. GARBUS: Can we think about it?
21 MR. SIMS: It will take us a moment to find the right
22 spot.
23 (DVD played)
24 A. In looking around for artifacts, I am looking for any
25 large flat areas of the screen where things are changing that
86
1 should not be changing. It would be difficult here to see the
2 rain spilling down on the walls. However, there are some
3 places where you can see some things.
4 It's possible that a real videophile would be able to
5 see the real artifacts, but I haven't been able to see them.
6 MR. GARBUS: It seems to me, since I am familiar with
7 the Matrix and I looked at this one, I can clearly see the
8 differences without -- and it seems to me it would be
9 appropriate for the Court at some time to look at the store
10 bought and then look at this DiVX one, and then I think the
11 Court can see the difference between the two at the same time.
12 I don't know how the Court now looking at this and
13 see the difference in the shadows and the texture unless you
14 have seen the original one 35 time.
15 THE COURT: 35 times is a considerable investment for
16 this movie. This is not Gone With the Wind.
17 MR. GARBUS: Have you seen that 35 times?
18 THE COURT: I assure you not. Okay. Are we done?
19 Q. Dr. Shamos, am I correct that the two demonstrations we
20 have just seen, the two side by side demonstrations, one
21 relating to Sleepless in Seattle, one relating to the Matrix,
22 in each case compared to the store bought one is a film which
23 has been subject to DiVX, is that correct?
24 A. Yes.
25 Q. And you have indicated for the record the extent you have
87
1 some or some not difference in perceptual quality in your own
2 view. If we had looked at the DeCSS version before DiVX was
3 applied, what would have been the comparison in your opinion?
4 A. Well, it would have been identical to the store bought
5 DVD.
6 MR. SIMS: Your Honor, I would like to offer 2.34 and
7 115D, the comparison of the videos we have just been through.
8 MR. GARBUS: I assume I will have a chance to look at
9 the copy. I will object to it until I have a chance to see
10 it.
11 THE COURT: I will receive it subject to a motion.
12 And as far as a side-by-side comparison, if you think that's a
13 appropriate, set it up and I will do it, not the whole movie,
14 but a comparable segment, whatever segment you want.
15 MR. GARBUS: Thank you.
16 Q. Now, Dr. Shamos, let me turn to the subject of file
17 transfer times. Did you and your assistant Mr. Burns proceed
18 to make further inquiry into the amount of time it would take
19 to transfer DiVX copies of the Matrix?
20 A. Yes, we did a couple of experiments on the CMU network.
21 Q. CMU refers to?
22 A. Carnegie Mellon university.
23 Q. Okay. What did you do?
24 A. Well, we used both the 10 megabit per second and the 100
25 megabit capability at CMU, and we were able to transfer the
88
1 Matrix. It took approximately 20 minutes to transfer it at 10
2 megabits and approximately 3 minutes to transfer it at 100
3 megabits.
4 Q. Now, what is the extent to which either 100 megabits or
5 the other number you just gave me are available throughout the
6 United States in universities or Internet service providers
7 for example.
8 MR. GARBUS: I would object to that.
9 THE COURT: I want to hear a foundation.
10 Q. Dr. Shamos, are you familiar and in connection with your
11 teaching do you have occasion to teach the present and
12 expected extent of bandwidth capacity in the United States
13 Internet, I mean in the Internet available in the United
14 States?
15 THE COURT: Restate the question, please.
16 Q. Dr. Shamos, do you teach and lecture with respect to
17 Internet bandwidth developments?
18 A. Yes.
19 Q. And to whom?
20 A. To both my university students and the corporations to
21 whom I give training.
22 Q. Are the transfer times you have just indicated, 20 minutes
23 using -- how many megabits was that?
24 A. 10.
25 Q. 10, and 3 minutes using 100, are those fast transfer times
89
1 based on your knowledge?
2 A. Yes.
3 MR. GARBUS: I object to it. The foundation was
4 insufficient.
5 THE COURT: Overruled.
6 A. Yes, they are fast. The reason I say that is that
7 Carnegie Mellon University has a high degree of network
8 capability not found at all other universities.
9 Q. What is available to the students in the dormitories at
10 Carnegie Mellon?
11 A. They get 10 megabit.
12 Q. And to your knowledge is that unusual among universities
13 and colleges in America?
14 A. No, it's very typical, because basically the lowest speed
15 that Ethernet runs at is 10 megabit these days.
16 Q. Is Carnegie Mellon unique in having a 10 megabit
17 connection?
18 THE COURT: Hold it. You say the Internet runs a
19 minimum of 10 megabits per second, but the fact is a lot of
20 the world is doing this with 56K modems and slower.
21 THE WITNESS: Correct. I didn't say the Internet
22 runs at that speed. I said Ethernet, which is being used
23 purely within the university network.
24 MR. GARBUS: I also do note there has been no
25 foundation for these last answers. In other words, I don't
90
1 know what he teaches in class, I don't know what he knows
2 about universities.
3 THE COURT: The last answer was directed to Carnegie
4 Mellon.
5 MR. GARBUS: Right. But prior to that it wasn't.
6 THE COURT: And I sustained that objection or I cut
7 off the line of testimony. So, now I assume what I'm getting,
8 unless I hear otherwise, is his personal knowledge of what is
9 available at the institution he works at. I'm glad he knows
10 that. I don't know what I have, but I'm glad he knows that.
11 You do know that, I take it, of your own knowledge?
12 THE WITNESS: I do.
13 THE COURT: Okay. Let's talk about Carnegie Mellon.
14 Q. You testified that 10 megabits is available to the
15 students at Carnegie Mellon?
16 A. In their dormitories. In general we have 100 megabit
17 available in classrooms and offices and ten megabit in the
18 dormitories.
19 Q. Do you lecture with respect to the growth of bandwidth in
20 recent years and expected future increases?
21 A. Yes, it's of exceptional interest to my corporate
22 education clients.
23 Q. Have you lectured on those subjects to Morgan Stanley and
24 the MacKenzie Company?
25 A. Yes.
91
1 Q. Do you expect bandwidth available at homes and to people
2 in universities and at various work sites to continue to grow
3 over the next few years?
4 A. Yes, I do. There is a manic need for bandwidth.
5 Companies that have web sites want to deliver more. People
6 who use the Internet want faster and faster access, they want
7 their browsing to be more convenient, so there is a crying
8 need for additional bandwidth, which many private entities are
9 attempting to supply.
10 Q. Could you describe for the Court the extent to which
11 bandwidth available in homes has increased over the last 18
12 months or so?
13 A. Yes.
14 MR. GARBUS: I would object unless I hear more
15 foundation.
16 THE COURT: I want to hear more foundation.
17 Sustained.
18 Q. Dr. Shamos, have you lectured with respect to the
19 increases in bandwidth over the last year or so?
20 A. Available to the home?
21 Q. Yes.
22 A. Yes.
23 Q. And what is the information that you use in your teaching
24 based on and sourced from?
25 A. It's based on, first, personal experience, since I have
92
1 been using, I have been accessing computer networks from my
2 home since 1970. I have followed with keen interest the
3 availability of bandwidth, since I would be a personal
4 beneficiary of it if I was able to obtain it.
5 And, of course, in being able to lecture
6 intelligently on the topic I have endeavored to inform myself
7 from a variety of sources on what is going on, particularly
8 various kinds of web pages, news reports and information
9 posted by the corporations themselves that are involved in
10 bandwidth provision.
11 Q. Do you have a DSL connection at home?
12 A. I do now.
13 Q. What is a DSL connection?
14 A. A DSL connection is a capability provided by a telephone
15 company that has a line running to a subscriber's house, in
16 which they are able to give dedicated service to that
17 subscriber without his having to share it with someone else.
18 Q. Is it larger bandwidth than a 56K modem would afford?
19 A. Yes.
20 Q. And is it increasingly available in some communities in
21 the United States?
22 A. Yes, there is a rush among the telephone companies to make
23 DSL more available because they are able to charge high prices
24 for it and make a profit.
25 Q. Have you lectured in connection with e-commerce and the
93
1 other topics you have testified about with respect to the
2 projections of increased bandwidth and its impact on commerce
3 over the Internet?
4 A. Yes, every course on e-commerce technology that I teach
5 has a unit on bandwidth and bandwidth increases.
6 Q. And are you familiar with a report or a prediction by
7 Motorola made a couple of years ago with respect to projected
8 increases in bandwidth?
9 MR. GARBUS: I will object to the next question after
10 he says, yes, he is familiar with the report.
11 THE COURT: Let me find out what the next question
12 is.
13 A. Yes, I am.
14 Q. And what is the report you advised me of?
15 THE COURT: I guess it's a report by Motorola on
16 expected increase in bandwidth.
17 Q. Yes, with the prediction that Motorola made. When did you
18 read it?
19 A. Mr. Roberson, who was the chief technology officer of
20 Motorola in 1998, made a presentation to the Internet
21 Engineering Task Force. I have reviewed the powerpoint slides
22 of his presentation.
23 Q. And what --
24 MR. GARBUS: Objection. I have never seen the
25 powerpoint slides. Even if I did, it would still be hearsay.
94
1 MR. SIMS: Your Honor, I have --
2 THE COURT: I haven't gotten there yet, Mr. Garbus.
3 Next question.
4 Q. And what was the projection in 1998 that Mr. Roberson made
5 with respect to increases in bandwidth by the year 2000?
6 THE COURT: Now, Mr. Garbus.
7 MR. GARBUS: I think I would like to object.
8 THE COURT: All right. This you are offering for the
9 truth, right?
10 THE WITNESS: No, I believe.
11 THE COURT: Now wait a minute. I know you went to
12 law school, but I have enough lawyers in this courtroom.
13 Mr. Sims.
14 MR. SIMS: Your Honor, this is historical. He is
15 going to testify that there was a projection in 1998 and he is
16 going to testify to the present state of the world, and I
17 don't think that's hearsay. I think that's testimony that
18 goes to the --
19 THE COURT: Okay. So you are not offering whatever
20 Mr. Roberson said two years ago for the truth of what Mr.
21 Roberson said. In fact you are offering it for the purpose of
22 proving how wrong it was. Is that right?
23 MR. SIMS: I'm not offering for the purpose of its
24 truth at the time, yes.
25 THE COURT: Overruled.
95
1 Q. What was the projection Mr. Roberson, CTO of Motorola,
2 made in 1998?
3 A. In 1998, before the Internet Engineering Task Force, he
4 predicted that for early home adopters -- and an early home
5 adopter is someone who is ready willing and able to buy the
6 latest new thing that is made available, but of course it has
7 to be made available to the home, as opposed to the more
8 conservative people or people with insufficient wallets who
9 wait for a while either for prices to come down or for the
10 technology to be proven -- so, for early home adopters, he
11 predicted that in the year 2000 seven megabits would be
12 available in the home.
13 Q. In the year 2000, based on your knowledge and expertise,
14 is 7 megabits available to homes?
15 A. Yes, I have it in my home and it's made generally
16 available by Bell Atlantic where they make DSL service
17 available.
18 THE COURT: Now, DSL service is not available
19 everywhere, isn't that true?
20 THE WITNESS: Quite right.
21 MR. GARBUS: We were given Mr. Shamos's affidavit,
22 and as I understand what his testimony was going to be, it was
23 going to relate to the experiment that he performed. As I
24 look at the affidavit, he refers in paragraph 31 to available
25 bandwidths increasing in the United States at such and such a
96
1 rate, and I would just ask whether or not he has any
2 documentation? I can save that for cross, I suppose.
3 THE COURT: Okay. Thank you. Mr. Sims?
4 MR. SIMS: Yes.
5 Q. Dr. Shamos, what would happen if large numbers of CMU
6 students attempted to transfer DiVXs at the same time?
7 A. Well, if they were attempting to do that at the CMU
8 network, they would of course clog the network. Every network
9 has finite capacity, and if people use it up indiscriminately,
10 then by clogging the network, the available transfer rates, as
11 observed by the people attempting to do the transfer, would
12 become slower and slower and slower, until they became
13 frustrated and would cease to engage in such activity.
14 Q. You testified a few minutes ago that students --
15 THE COURT: Essentially the same principle as
16 everybody trying to drive in in the morning on the FDR Drive,
17 right?
18 THE WITNESS: Yes, I think congestion is an apt
19 analogy.
20 Q. You testified a few moments ago with respect to a 20
21 minute download within the CMU network available in the
22 dormitories, is that correct?
23 A. Yes.
24 Q. Now, do you believe the result of that test reflects
25 practical and not merely theoretical results?
97
1 A. Yes, at that rate we were getting approximately a third of
2 the available bandwidth. We were getting nowhere near 100
3 percent of it.
4 Q. To what extent?
5 THE COURT: I don't understand your answer.
6 THE WITNESS: Well, if conditions had been perfect,
7 and there had been no one else on the network, we might have
8 been able to achieve triple the speed, so it would have taken
9 under seven minutes instead of 20. But because we made no
10 effort to try to achieve perfect conditions but just use the
11 network in its condition at the time, we got approximately a
12 third of the theoretical maximum.
13 THE COURT: So, is it correct for me to understand
14 that in order for you to achieve this 20 minute transfer rate,
15 using the 10 megabytes per second capability at Carnegie
16 Mellon, you were using a third of the whole system?
17 THE WITNESS: No, we were using a third of the
18 capacity of the switch that our machine was connected to.
19 THE COURT: Okay.
20 Q. So the record is clear, is it 10 megabits?
21 A. Yes.
22 Q. Not 10 megabytes.
23 A. Right.
24 Q. Now, do you believe that a 10 megabit connection is widely
25 available today?
98
1 A. It's widely available.
2 MR. GARBUS: I object.
3 THE COURT: Sustained. This is not a matter for
4 religious testimony. This is presumably objectively knowable.
5 Q. Do you have any information with respect to whether 10
6 megabit connections are available today other than at CMU?
7 A. Yes.
8 Q. What is that information?
9 A. First of all, let's just talk within a university, without
10 talking about going out on the Internet. You basically can't
11 get LANS these days that run at less than 10 megabits. It's
12 the Ethernet standard capacity. So universities that provide
13 local area networks to their students all have 10 megabit.
14 Q. Is it common for major universities to have local area
15 networks for their students?
16 A. Yes.
17 Q. To what extent do you have information with respect to the
18 availability of that kind of connection outside of
19 universities?
20 A. Well, outside of universities there are numerous
21 corporations that have that capacity and greater. Where you
22 don't get that capacity is typically in the home.
23 MR. GARBUS: I would object to the foundation, your
24 Honor.
25 THE COURT: Overruled.
99
1 Q. Based on your teaching and your experience in the
2 institute of e-commerce --
3 THE COURT: Let me go back to that ruling. You are
4 not seriously disputing, Mr. Garbus, are you, that lots of
5 corporations in the United States have networks with greater
6 than 10 megabit or megabyte capacity per second?
7 MR. GARBUS: I don't know.
8 THE COURT: Well, maybe you ought to talk to your
9 technical advisors and come back to me on that. If that's
10 seriously in dispute, I am prepared to strike the answer, but
11 I took that as a given.
12 MR. GARBUS: Thank you.
13 Q. And based on your experience teaching e-commerce issues,
14 teaching of e-commerce and Internet connections, what do you
15 see as the implications of fast Internet connections and
16 increased bandwidth for copyright owners of motion pictures
17 released on DVDs?
18 A. Well, I think it's clear what is going on in the music
19 industry.
20 MR. GARBUS: I object to the question, your Honor.
21 THE COURT: Overruled. I am going to hear it,
22 Mr. Garbus. You obviously have arguments and
23 cross-examination.
24 A. It's clear what has gone on in the music industry, that
25 compressed audio files are being made available and are being
100
1 traded back and forth among people and being acquired from
2 archives of such things and are being used to replace the need
3 to purchase music from other sources. The difference between
4 audio and watching movies is of course that movies are much
5 longer and, therefore, are represented by longer files.
6 Furthermore, they have video in addition to audio, and that
7 also increases the size of the files, and therefore the
8 transfer time for these things is larger.
9 However, with increases in internet capacity and
10 bandwidth availability to the home and other places, it's
11 completely clear to me that exactly the same thing is going to
12 happen with videos as has happened with Napster. In fact the
13 entire movie industry is attempting to explore video on
14 demand. They want to be able to sell you the movies directly
15 to your home if it can be done in a secure manner.
16 Q. Other than your experience that you have testified to
17 concerning the particular Internet relay chat that Mr. Burns
18 had, do you have reason to believe, and do you have an opinion
19 based on your experience and teaching that trading in digital
20 copies of DiVX films is growing?
21 A. Yes. I have an opinion and the opinion is it sure is.
22 MR. GARBUS: Objection. I object to the question and
23 the answer.
24 THE COURT: I am going to take it for what it's
25 worth, but obviously, Mr. Sims, the better the foundation the
101
1 the more persuasive it is.
2 MR. SIMS: Let me hand up Exhibit 116B, which we have
3 given to the defendants.
4 Q. Dr. Shamos, what is this document?
5 A. This document is a print-out of a number of pages obtained
6 from the website iSONEWS.
7 Q. Was it printed out under your direction?
8 A. Yes. I pointed you to it, and together we printed out the
9 pages.
10 Q. When did we do that?
11 A. Yesterday.
12 Q. Now, is iSONEWS a website?
13 A. Yes.
14 Q. And what part of the iSO website do these pages represent?
15 A. ISONEWS is a place where people may obtain information
16 about the existence of various movies in different kinds of
17 formats, so we went to iSONEWS and asked what it knew about
18 DiVXs.
19 Q. Does it organize the different kinds of materials for
20 which information is provided into various formats?
21 A. Yes, it does. DiVXs is in their own separate category,
22 and we looked only at DiVXs, and the DiVXs in the terminology
23 of iSONEWS had been "released." That doesn't mean released by
24 Hollywood. That means released by the pirates who were
25 descrambling them and DiVXing them. This lists.
102
1 MR. GARBUS: Objection.
2 THE COURT: I couldn't hear you, Mr. Garbus.
3 MR. GARBUS: I object to this statement.
4 THE COURT: Overruled.
5 A. And the way the DiVX section of iSONEWS is organized, is
6 it shows you by each month, starting in January 2000, which
7 movies have become available for trading on the Internet
8 through the DiVX format. What it shows -- unfortunately this
9 is on the last page, SMS68. It shows that in January 2000 no
10 releases were found. But on the preceding page, SMS67, this
11 is the list of DiVXs from February where there were
12 approximately nine available. Then in March it appears as
13 though a couple of hundred became available. And if you
14 include everything from the zero in January through the July
15 listing -- and of course we are not even at the end of July --
16 the total exceeds 650, which I understand to be more than 10
17 percent of all DVDs available in the United States.
18 THE COURT: All right. We are breaking for lunch
19 here, and I obviously know that Mr. Garbus has the word
20 "hearsay" at the tip of his tongue, and you might think about
21 it over lunch, Mr. Sims.
22 (Luncheon recess)
23
24
25
103
1 A F T E R N O O N S E S S I O N
2 2:00 p.m.
3 MICHAEL SHAMOS, resumed.
4 THE COURT: Sorry for the delay. Let's continue.
5 DIRECT EXAMINATION Continued
6 BY MR. SIMS:
7 Q. Dr. Shamos, I believe the last question had to do with
8 explaining what you see in Plaintiff's Exhibit 116B, which was
9 this printout of a list of titles of films on iSONEWS. Have
10 you completed your answer?
11 MR. GARBUS: Excuse me, your Honor. We did not at
12 the beginning of trial discuss the whole question of exclusion
13 of witnesses.
14 THE COURT: No, we didn't. Nobody brought it up.
15 MR. GARBUS: I would ask that all witnesses be
16 excluded from the courtroom, if they are going to then
17 testify.
18 THE COURT: Mr. Sims?
19 MR. SIMS: Your Honor, I think this is the sort of
20 case that doesn't involve who did what to whom when and when
21 the accident happened. So, I don't think it's necessary.
22 THE COURT: It's not an optional matter under the
23 Rule.
24 MR. SIMS: If it's not an optional matter --
25 THE COURT: If there's anybody who may be a witness
104
1 in this case in the courtroom, they are going to have to wait
2 outside until their testimony is concluded one by one. So, if
3 there is anybody in the courtroom, you are out.
4 If you would like, folks, you can use the jury room,
5 because we obviously don't have the jury. It should be open.
6 MR. SIMS: One moment, your Honor.
7 THE COURT: The Rule, of course, allows each side to
8 have one designated representative of a party. I think it's
9 Rule 613, folks.
10 MR. SIMS: Your Honor, Mr. Gold -- can Mr. Gold be
11 excused to get our representative back, Ms. Kean? Thank you.
12 THE COURT: Yes. That's the wrong rule. It's 615.
13 BY MR. SIMS:
14 Q. Dr. Shamos, I think you were testifying about what you
15 understand and see in Exhibit 116B. Have you completed your
16 answer? Do you recall?
17 THE COURT: I'm not sure he started.
18 MR. SIMS: O.K.
19 Q. Why don't you explain what 116B is?
20 A. O.K., I think I explained that, just to review it quickly
21 that this was a printout of pages made from the iSONEWS web
22 site under the section hyper letter linked DiVX'd and this
23 appears to constitute a list, at least by its own term, it
24 says it constitutes a list of DiVXs that have been "released
25 month by month since January of 2000," in sum total exceeding
105
1 650 of them, which I then testified it was my understanding
2 that that constitutes more than 10 percent of all DiVXs -- of
3 all DVDs available in the United States.
4 THE COURT: Mr. Garbus?
5 MR. GARBUS: I have made an objection to that on the
6 grounds of hearsay.
7 THE COURT: I am sure you are offering that one for
8 the truth; right, Mr. Sims?
9 MR. SIMS: The number that I want in, your Honor, is
10 the number of films on this list and as to that, I know that
11 the witness counted them up himself because I watched him do
12 it.
13 THE COURT: But how do I know that these films are
14 actually out there?
15 MR. SIMS: I think he's testifying to the number of
16 films on the list and not whether they are actually out there.
17 And I think that --
18 THE COURT: What is the relevance of a list of things
19 unless they are out there?
20 MR. SIMS: I believe, your Honor, that we'll tie it
21 up and we'll show you that it's relevant over the next few
22 moments.
23 THE COURT: Well, I will take it subject to
24 connection, but obviously its relevance depends on your
25 producing evidence, competent evidence sufficient to persuade
106
1 me that, in fact, these movies are out there.
2 MR. SIMS: I believe that I will be able to connect
3 it up for relevant purposes. It may not be that precise fact,
4 your Honor.
5 THE COURT: All right. Mr. Garbus' objection is well
6 taken at this point.
7 BY MR. SIMS:
8 Q. Dr. Shamos, look, if you would, at page SMS66 toward the
9 back of this. And do you see a film on March 14th identified
10 with that date and the word "ant"?
11 A. Yes, I do.
12 Q. Did you click on anyplace on that line and obtain further
13 information?
14 A. Yes, if you click on the icon on the extreme right-hand
15 edge of the page, which looks like a little notebook, then
16 that calls up a page of information about that particular
17 film.
18 MR. SIMS: If I may approach, your Honor, may I
19 hand -- I'm not sure this is in the books, 114F.
20 THE WITNESS: It's in the book.
21 Q. Is this the printout of the information you obtained when
22 you clicked on the word "ants" on page SMS66 of iSONEWS?
23 A. Yes.
24 Q. Now, does anything on 114F suggest to you -- let me
25 rephrase that.
107
1 THE COURT: While you are thinking about that, let me
2 say for the information of counsel that I have just signed an
3 order denying the motion put out by the defendants and as soon
4 as the copy machine does its job, you will have copies.
5 MR. GARBUS: May we have an appropriate stay to go to
6 the Second Circuit?
7 THE COURT: Denied.
8 MR. SIMS: I'll come back to that in a moment, Dr.
9 Shamos.
10 Q. Have you formed an opinion about the feasibility of
11 locating and downloading DiVX'd decrypted DVDs from the
12 Internet?
13 A. Yes.
14 Q. What is that?
15 MR. GARBUS: I object to that.
16 THE COURT: Grounds?
17 MR. GARBUS: I don't know -- there's no foundation
18 for it that he's an expert in this area and he's finding stuff
19 on the Internet.
20 THE COURT: Excuse me? You dropped your voice.
21 MR. GARBUS: He's not an expert of finding materials
22 on the Internet. It's a factual matter.
23 THE COURT: Overruled. Overruled.
24 Q. Before you tell me what your opinion is, tell me what it's
25 based on?
108
1 A. I have several bases for it. One is the personal
2 experience in observing the result of the Matrix having been
3 exchanged over the Internet and the apparent availability of
4 other films that we could obtain by communicating with pound
5 on the pound DiVX chat room and also the existence of iSONEWS
6 and the pointers that it gives to 650 movies which have been
7 ripped and are available in DiVX format now on the Internet.
8 Q. Does the information you printed on No. 114F point back to
9 the instructions you used with respect to making the DiVX'd
10 decrypted copy of Sleepless in Seattle?
11 A. Yes, it does.
12 Q. Where?
13 A. Well, we can do it a couple of ways. I can point you to
14 it directly now or we can just go through it in order. But it
15 says, approximately two-thirds or three-quarters of the way
16 down on the second column, back space, BCKSPC sends personal
17 greetings/props to he can prog of FM4 for help on rip
18 techniques.
19 Decoding this for humans, it seems to mean that the
20 person who ripped this particular movie into DiVX'd format
21 obtained instructions from how to do so from FM4.org which, of
22 course, recommends that step 1 be DeCSS.
23 Q. And is FM4 the web site you went to and obtained
24 instructions from and followed in connection with the
25 experiment you testified about this morning?
109
1 A. Yes.
2 Q. What is your opinion about the feasibility of locating and
3 downloading DiVX'd decrypted DVDs from the Internet?
4 THE COURT: The question is compound. Ask it in
5 separate parts.
6 Q. What does -- what is your opinion of the feasibility of
7 locating DiVX'd decrypted DVDs from the Internet?
8 A. My opinion.
9 MR. GARBUS: I object to it.
10 THE COURT: Let me just review the question again.
11 Overruled. I will take it for what it's worth.
12 A. My opinion is that if one goes to Internet relay chat, it
13 is relatively easy to do it. If one attempts to contact the
14 people who list themselves on iSONEWS, it's much more
15 difficult.
16 Q. What is your opinion as to the feasibility of downloading
17 DiVX'd decrypted DVDs from the Internet?
18 A. Well, since we did it, I could testify that it's feasible.
19 Q. Have you formed an opinion of the likelihood that the
20 incidence of decryption using DeCSS and compression of
21 authorized DVDs is on the rise?
22 A. Yes.
23 Q. What is that opinion based on?
24 A. The opinion --
25 MR. GARBUS: Objection.
110
1 THE COURT: Overruled.
2 Again, your point goes to the weight, Mr. Garbus. I
3 do understand your point.
4 A. My opinion -- could you read the question back?
5 Q. Yes, what is your opinion based on and the opinion I'm
6 referring to and I haven't yet asked you what that opinion is
7 is whether you have an opinion of the likelihood that the
8 incidence of decryption using DeCSS in compression of
9 authorized DVDs is on the rise?
10 MR. GARBUS: Objection.
11 THE COURT: Same ruling.
12 Q. What is that opinion based on?
13 A. The opinion is based on the increase in Internet bandwidth
14 that has both been observed and predicted. The trends in the
15 music industry which are basically on a parallel with this one
16 and also on the rise month by month, in huge rise month by
17 month in the number of titles mentioned on iSONEWS as having
18 been DiVX'd ripped.
19 Q. What is your opinion?
20 A. My opinion is that it's on the rise. I believe that as
21 long as there's a DVD out there, the people who are ripping
22 them won't stop until they're all ripped.
23 Q. Have you formed an opinion as to the role that DeCSS has
24 played in the availability of these decrypted compressed DVDs
25 available on the Internet?
111
1 A. Yes.
2 MR. GARBUS: I'll object.
3 THE COURT: Overruled.
4 Q. What's the basis for that opinion?
5 A. The basis for the opinion is in examining the web sites on
6 the Internet that give people advice and instructions on how
7 to obtain a DiVX'd copies of movies from DVDs, the tool --
8 DeCSS is frequently listed as the tool of choice. It's listed
9 so on FM4 and on other web sites.
10 Not only that, credit is given by several people on
11 iSONEWS which appears to state that they have used or
12 benefited from advice from FM4, which is precisely to use
13 DeCSS.
14 MR. GARBUS: I also object on the grounds that
15 everything he has just said, I gather, was based on other
16 people who have said. It's also a hearsay objection.
17 THE COURT: So far all he's given is the basis for
18 his opinion. He hasn't told us the opinion, although I'm sure
19 you have a heads up on what it will be.
20 Q. Dr. Shamos, what is your opinion as to the role that DeCSS
21 is likely playing in the availability of decrypted compressed
22 DVDs on the Internet?
23 MR. GARBUS: I object to the question.
24 THE COURT: I'm going to hear the answer, Mr. Garbus,
25 but I understand your point and I'm by no means sure that it
112
1 is reliable evidence.
2 Q. Dr. Shamos?
3 A. My opinion is that it plays a major role because it's an
4 extremely easy-to-obtain tool and easy-to-use tool and a
5 highly-recommended tool.
6 Q. So far as you know, is there any reliable way to ascertain
7 whether any particular DiVX'd unscrambled motion picture
8 available on the Internet or obtained from the Internet is the
9 result of DeCSS?
10 A. I don't know of such a way of making that determination.
11 Q. Is there any other descrambling mechanism other than DeCSS
12 that you consider a more -- a more feasible way, an easier way
13 of obtaining a DiVX'd DeCSS film other than DeCSS?
14 A. Well, I'm not aware of any, but I've given in deposition
15 testimony that I don't have deep familiarity with the other
16 methods.
17 MR. SIMS: Your Honor, I'd like to offer Exhibits
18 115A, which is the session of the Internet relay chat which
19 shows the provenance of the copy of Matrix that was obtained
20 by Dr. Shamos.
21 MR. GARBUS: I object to both of these documents on
22 the grounds previously stated.
23 MR. SIMS: I think maybe the record should get the
24 second one that I'm offering before --
25 THE COURT: Yes, I don't know what the second one is
113
1 yet.
2 MR. SIMS: And the second one is 116B, which is the
3 list of -- from iSONEWS and is offered, not for the fact that
4 these particular films can be obtained, but for the fact that
5 they are listed as having been obtained in the increasing
6 availability that the iSONEWS exhibit reflects.
7 MR. GARBUS: I don't have to repeat my objection.
8 THE COURT: I'm going to take them for what they are
9 worth.
10 (Plaintiff's Exhibits 115A and 115B received in
11 evidence)
12 MR. SIMS: I'm told there's one exhibit that I left
13 off and it's the one on the stand; 114F. I would offer that
14 as well. 114F, the "ants" piece, there's a stipulation of
15 authenticity between the attorneys, your Honor, and it's -- I
16 offer it.
17 MR. GARBUS: I object to that on the grounds that it
18 is hearsay, also.
19 THE COURT: Here, I think you are not offering it for
20 the truth.
21 MR. SIMS: No, it is available. Dr. Shamos knows
22 it's available and it advises people of tools, including DeCSS
23 to obtain -- to unscramble and transmit this.
24 MR. GARBUS: I object on the grounds of hearsay.
25 THE COURT: Look, in part, it's obviously offered and
114
1 I think it was explicitly indicated by the witness to be one
2 of the bases of an opinion and certainly to that extent, it's
3 admissible.
4 I'm not sure looking at it that it really is offered
5 for a hearsay purpose, but I will certainly consider that and
6 if we ever get to the point of post-trial briefing or closing
7 arguments, I am simply going to take that into account and
8 what I typically do in non-jury trials is not get too hung up
9 on the hearsay rule on something like this, but rather simply
10 make clear when I rule in the case what I have relied on and
11 what I haven't because if I ultimately don't rely on this, it
12 doesn't matter.
13 So, I'm going to take these three exhibits, but I'm
14 going to take it on that understanding that if the defendants
15 ever want any further clarification, they are certainly at
16 liberty to make a motion to strike further along in the case.
17 And if I have concluded at that point that it really is being
18 offered for a hearsay purpose, and it really is hearsay, then
19 I will strike it.
20 MR. SIMS: Your Honor, that concludes this witness'
21 testimony.
22 If I could have a few minutes to address the question
23 of Mr. Burns that had been raised earlier? Mr. Hernstadt and
24 I have spoken at a little bit at length on this.
25 MR. HERNSTADT: Your Honor, I think it's -- well, we
115
1 haven't raised the question of Mr. Burns at this point, so.
2 THE COURT: I'm not sure I understand what you are
3 all saying to me.
4 MR. SIMS: We had offered the -- I'm sorry. May I
5 have a moment, your Honor?
6 (Pause)
7 MR. SIMS: Your Honor, I've completed the
8 examination.
9 THE COURT: Pardon me?
10 MR. SIMS: I've completed the examination.
11 MR. HERNSTADT: The question of Mr. Burns, I think on
12 cross-examination, it will be very clear we need to have his
13 deposition and he needs to be a witness in this case. I don't
14 know. I'm told Dr. Shamos has concluded with his testimony
15 that there isn't anything to address on that, but we are happy
16 to do it now, if your Honor wishes.
17 THE COURT: Well, if it's not clear before you cross
18 this witness whether there's anything to address on the other
19 one, why don't I hear it now. Let's just go ahead with the
20 cross-examination.
21 MR. HERNSTADT: I think it will all be clear.
22 Your Honor, there is one other issue before we start
23 cross-examination. We've notified the plaintiffs that
24 Mr. Stevenson, Frank Stevenson, one of our declarants is
25 actually in New York and he's going to be here until tomorrow.
116
1 I think we mentioned that to your Honor as well and
2 we sent him letters and there's nothing new about this. We'd
3 like to take his testimony while he's here, if that's
4 possible.
5 THE COURT: I will hear him out of order.
6 MR. HERNSTADT: O.K. We can give them an opportunity
7 to meet with him tonight to take his deposition, if they want,
8 or just to talk to him, if they want, and we can take him
9 tomorrow. He's leaving tomorrow.
10 THE COURT: Mr. Gold, any problem?
11 MR. GOLD: Yes. This was a witness that was
12 designated approximately one week to one and a half weeks
13 after we were done naming witnesses. They've known that
14 Mr. Stevenson -- I think he submitted an affidavit before the
15 preliminary injunction motion was decided. But --
16 THE COURT: Well, not before the preliminary motion
17 was decided.
18 MR GOLD: After the preliminary injunction, but it
19 was months ago. So, this isn't a new person that they've run
20 into and I don't understand why we would be naming witnesses
21 so long after the Court's order.
22 THE COURT: Mr. Hernstadt?
23 MR. HERNSTADT: It's, as we've explained to the
24 plaintiffs and your Honor, he lives in Oslo and it was just
25 not clear that he was going to be able to be here and I've
117
1 informed the plaintiffs of that on several occasions as well
2 and it turns out he was able to come for four days and he's
3 leaving tomorrow.
4 MR. GOLD: Well, we had no notice and at the time I
5 first heard about this witness, I said, O.K., there are planes
6 to Oslo. We'll go take his deposition.
7 THE COURT: We will discuss this more later on.
8 Let's proceed with the cross.
9 Look, it is an expedited case within reasonable
10 limits. I'm going to give everybody some leeway. My concern
11 is to make sure I have the facts. That's what I want to get
12 to.
13 Now, let me just also be clear before Mr. Garbus
14 starts. I'm not sure that the exhibits that were used on the
15 Matrix demonstration were ever offered. 111, 115D, and my
16 clerk has passed me a note about 2.34; 2.34 was not Matrix;
17 2.34 was Sleepless in Seattle, or am I wrong?
18 MR. SIMS: I thought I offered them, but I can
19 certainly give you the proper numbers for each examination.
20 The first demonstration involved 2.28 and Exhibit 111. And I
21 believe I offered them. If I didn't --
22 THE COURT: My notes indicate that I received 2.28.
23 They don't indicate that 111 was received. That's the burned
24 in CD.
25 MR. SIMS: That's correct.
118
1 THE COURT: Any objection?
2 MR. HERNSTADT: We object to that. It's not the same
3 CD that was provided to us. Ours is different. And there's
4 also some mysterious date problems in terms of when it was
5 created and when it was modified as reflected on the CD. It's
6 something that we would want to inquire of the person who made
7 the CD.
8 THE COURT: Look, I've already said you could examine
9 that CD.
10 MR. HERNSTADT: We examined the CD and the CD told
11 us, I'm actually not sure, are we talking about the CD of
12 Sleepless in Seattle?
13 MR. SIMS: Yes.
14 MR. HERNSTADT: That it was created yesterday?
15 THE COURT: That's what I think counsel said earlier.
16 MR. HERNSTADT: Right. However, on the hard drive,
17 it says that that was created on -- yeah, it was created on
18 July 9th and it was modified on June 26th.
19 THE COURT: Whose hard drive?
20 MR. HERNSTADT: On the hard drive from the file. In
21 other words, the file from which it was burned the other
22 computer hard drive from which the CD was burned states that
23 it was created on July 9th and that file was modified on June
24 27th.
25 THE COURT: Right.
119
1 MR. HERNSTADT: That's obviously impossible, so it
2 makes me wonder.
3 THE COURT: I see what you are saying.
4 MR. HERNSTADT: We are more alert about the drive.
5 THE COURT: I will take 111 subject to a motion to
6 strike because that, in fact, was the one that was played.
7 MR. SIMS: That's correct, your Honor.
8 THE COURT: There's no dispute about that; right, Mr.
9 Hernstadt?
10 MR. HERNSTADT: No, your Honor.
11 THE COURT: If there's really a question about what
12 it is, obviously we will get to the bottom of it.
13 MR. SIMS: The second demonstration, your Honor,
14 involved Matrix which was 2.34 and 115A, I believe.
15 THE COURT: 2.34 is in. I received that and 115D.
16 115A was not offered.
17 MR. SIMS: 115D, your Honor.
18 MR. HERNSTADT: Which is the one that's the burned?
19 MR. SIMS: 115D is the burned Matrix that the
20 testimony --
21 THE COURT: That's already been received; D.
22 MR. HERNSTADT: O.K., I didn't understand that it
23 had. We object to that as well. We wanted to look at the
24 hard drive and at that disk.
25 THE COURT: You are welcome to look at that, too.
120
1 MR. HERNSTADT: We have. And it's even more
2 problematic because the burned versions that we got have
3 modified -- dates of modification that are different, June 14
4 and June 19, and it also on the hard drive says it was created
5 on July 9th and modified on June 15th.
6 THE COURT: Which is a nice trick in anybody's
7 technology.
8 MR. HERNSTADT: Which is a nice trick.
9 THE COURT: Same ruling on that. You can move to
10 strike it if there's really a problem here.
11 MR GOLD: Your Honor?
12 THE COURT: Yes?
13 MR GOLD: May I have one more sentence on the
14 Stevenson matter? If the Court is going to permit his
15 testimony tomorrow, we'd like a chance tonight to take a short
16 deposition.
17 THE COURT: We'll talk about it at 4:30.
18 MR GOLD: Thank you.
19 THE COURT: Let's go ahead, Mr. Garbus.
20 CROSS-EXAMINATION
21 BY MR. GARBUS:
22 Q. Mr. Shamos, directing your attention to this exhibit, it's
23 not numbered here.
24 A. It's numbered on the back on the upper right side.
25 Q. 106.
121
1 A. Yes.
2 Q. Mr. Sims asked you to read the first sentence and the
3 second sentence of -- under the heading "how can you help"?
4 A. I don't think he asked me to read it, but I did read it.
5 Q. And what is the third sentence? Will you read the first
6 two sentences?
7 A. Yes. "While we have every intention of sticking this out
8 to the end, we have to face the possibility that we could be
9 forced into submission. For that reason, it's especially
10 important that as many of you as possible all throughout the
11 world take a stand and mirror these files.
12 Q. What is the sentence?
13 A. Don't do this because you just want to copy DVDs. That's
14 not what the -- what this fight is about at all. This is
15 about freedom of information. The right we all still have.
16 Q. That's all. Now, with respect to Exhibit 116B, did you
17 download any of these films?
18 A. No.
19 Q. With respect to ants that you testified about before, did
20 you download ants?
21 A. No.
22 Q. Tell me how you came to be in this case? Did Proskauer
23 approach you? Did the MPA approach you?
24 A. I received a telephone call in the range of a month ago,
25 maybe a little bit more, from an attorney Mark Litvak, who
122
1 works for the MPAA.
2 Q. And how did you know him?
3 A. How about if I finish the first answer, then I'll answer
4 the second question?
5 Q. Go ahead.
6 A. O.K. And Mr. Litvak said to me, we have a case going on
7 in New York. How would you like to help us out like you did
8 on the "I Crave TV Case"?
9 Q. Now, are you finished with your answer?
10 A. Yes.
11 Q. Was the MPA involved in the "I Crave TV Case"?
12 A. Yes, I don't believe the MPAA was a party, but
13 representing the movie industry, including a huge number of
14 plaintiffs, it had an involvement.
15 Q. And what is your best judgment about the total amount of
16 fees that you're going to earn as a result of your testimony
17 in the "I Crave" case and in this case?
18 A. The "I Crave" case, the total fees were $20,000. In this
19 case, I could make an estimate, but I think it's going to
20 depend on how long you cross me.
21 Q. Let's assume we finish with you by tomorrow at lunch, if
22 the judge permits that, what would your total fees be?
23 A. Yes, probably something in the range of $30,000.
24 Q. And how much do you get an hour for your testimony?
25 A. I'm not paid for my testimony. I'm paid for the time that
123
1 I put in on the case. I don't charge a different rate while
2 I'm up on the stand than I do for background research.
3 Q. And it's the same rate if you're flying here or traveling
4 here?
5 A. If I have to have dead time that I can't use for other
6 purposes, I do bill that; yes.
7 Q. Now, and is that rate about $400 an hour?
8 A. It's exactly 400.
9 Q. Now, when Proskauer first came to you -- pardon me.
10 When Mr. Litvak first came to you, tell me what you
11 and he said?
12 A. Well, as I testified, he asked me if I would be willing to
13 help him out again. And I said, well, I certainly have to
14 know what the case is all about. And my recollection is that
15 he thereupon brought in Mr. William Hart, who's an attorney at
16 Proskauer, in a conference call with me and the basics of the
17 case were described to me.
18 Q. And were you sent any of the affidavits or pleadings in
19 the case?
20 A. Yes, I was sent a pile of pleadings, documents filed in
21 the case. I recall that it was approximately 3 or 400 pages
22 worth of the material.
23 Q. And did you read the affidavit of Dr. Abelson?
24 A. I don't recall whether I read the affidavit of Dr. Abelson
25 then or subsequently, but I have read the affidavit of Dr.
124
1 Abelson.
2 Q. Who is Dr. Abelson?
3 A. Dr. Abelson is a computer scientist at MIT.
4 Q. And you described him at the deposition on Monday --
5 pardon me -- on Saturday as a fabulous computer scientist?
6 A. I'm not sure if I used the word "fabulous," although I
7 would agree with that characterization. I think I used the
8 word outstanding.
9 Q. Now, did you also read the affidavit of Dr. Teretsky?
10 A. Yes.
11 Q. And is Dr. Teretsky at Carnegie-Mellon?
12 A. Yes.
13 Q. And did Dr. Teretsky post DeCSS and CSS on his web site?
14 A. He posts DeCSS in course code form and in various other
15 forms on his web site.
16 Q. When you say, he posts it in various forms on his web
17 site, can you tell me in what forms he posts it?
18 A. Yes. He has the C language source code of DeCSS. He has
19 a tee shirt, a graphic image of a tee shirt on which the
20 source code appears.
21 He has a graphic image of a page on which the source
22 code is printed. He has a version of the algorithm for DeCSS
23 which has been written in a hypothetical computer language of
24 Dr. Teretsky's own creation. He has a version of the DeCSS
25 source code interspersed with English language commentary and
125
1 I think he also has an English language description of the
2 DeCSS algorithm without any code in it.
3 Q. And to your knowledge, can anyone with a computer have
4 access to that, to Dr. Teretsky's web C page?
5 A. Anyone who can access the Internet can access that web
6 page.
7 Q. Do you know how long Dr. Teretsky has had it on his web
8 page?
9 A. No, I don't.
10 Q. Has Carnegie-Mellon, to your knowledge, ever suggested
11 that he take it down?
12 A. Not to my knowledge.
13 Q. Do you know how many students have downloaded that from
14 his page?
15 A. No, I don't.
16 Q. Do you know how many hundreds of thousands of people have
17 downloaded that from his page?
18 A. I would have no way of knowing that.
19 Q. Now --
20 A. Although it's possible we could get the logs from the CMU
21 system administrator. I haven't been asked to do that and I'm
22 not such an administrator.
23 THE COURT: Do you have any knowledge that the
24 number, in fact, is in the hundreds of thousands?
25 THE WITNESS: No, I don't.
126
1 Q. Did you also look at the affidavit of Dr. Appel?
2 A. Yeah, I recall scanning it. I don't recall any details of
3 it.
4 Q. Dr. Appel is at Princeton?
5 A. Yes.
6 Q. And is he a well-known and respected computer scientist?
7 A. Very much so. He got his Ph.D. at CMU.
8 Q. And do you know that Dr. Appel links to Teretsky's web
9 site?
10 A. I didn't know that.
11 Q. Do you know who Dr. Ed Felton is?
12 A. No, I don't. I mean, I know that he gave a declaration in
13 this case that I scanned, but I don't have any independent
14 knowledge of who he is.
15 Q. How about Professor Peterson?
16 A. Same.
17 Q. Now, you testified yesterday that -- well, let me continue
18 with you and Proskauer.
19 So, after you had this first conversation, what then
20 happens?
21 A. Well, I received the documents. I looked over the
22 documents, and the reason I asked for the documents was to
23 make sure that I had at least some material from the defense
24 so I could understand what the defense's position was.
25 I was also sent a copy of the order granting
127
1 preliminary injunction so I could determine what the judge's
2 preliminary thinking in this case was. On that basis, I
3 decided to participate.
4 Q. And you saw the various estimates that the defendants
5 declarants -- Beckers, Abelson, Felton, Peterson had made with
6 respect to times transmissions of information over the
7 Internet?
8 A. Well, I have seen that prior to sitting here today. I
9 don't recall whether I saw those prior to deciding whether to
10 enter the case or not.
11 Q. And you had seen in their affidavits their testimony
12 concerning compression, times of compression and times of
13 transfer, is that right?
14 A. Yes.
15 Q. Now, did you at some point go to a search engine to see if
16 you could find a reference to DeCSS?
17 A. Yes.
18 Q. When did you do that?
19 A. I did that before preparing my declaration.
20 (Continued on next page)
21
22
23
24
25
128
1 BY MR. GARBUS:
2 Q. And which search engine was it?
3 A. I used HotBot, H-O-T-B-O-T.
4 Q. And what did it indicate?
5 A. It indicated a huge number of pages on the Internet that
6 made reference to the stream DeCSS.
7 Q. Do you know of one person who copied illegally a DVD as a
8 result of any information posted by the defendant in this
9 case?
10 MR. SIMS: Objection. Calls for a legal conclusion.
11 THE COURT: Sustained as to form.
12 Q. Do you know of any one person who copied a DVD as a result
13 of any download from 2600, yes or no?
14 A. Of my own personal experience, other than Eric and myself,
15 no.
16 Q. Now, has anyone at the MPA ever told you that they know of
17 any one person that ever copied a DVD as a result of
18 downloading material from 2600.com?
19 A. I testified in deposition that the sum total of my
20 conversations with the MPA in my lifetime has been
21 approximately five minutes, and during that five minutes, no,
22 they did not communicate that to me.
23 Q. What is the sum total of your conversations with the
24 Proskauer law firm?
25 A. Pardon me?
129
1 Q. What is the sum total --
2 A. Oh, well, my presence at the Proskauer law firm and
3 engaged in conversations with people at the Proskauer firm is
4 probably something like 20 hours, 25 hours.
5 Q. And in addition to that, have you sought on the outside to
6 get any anecdotal information about 2600.com?
7 A. Anecdotal meaning what?
8 Q. Meaning asking people things, talking to people.
9 A. I haven't talked to people about 2600.com. Any
10 investigation I did was on the Internet by visiting it myself
11 and looking for links.
12 Q. Did anyone at the Proskauer law firm in the 20 hours you
13 spent with them ever tell you that a copy was ever made as a
14 result of a download from 2600.com?
15 A. No specific person was identified as having done so.
16 Q. Has anyone ever told you that any of the films that are on
17 Exhibit 116B ever came from any copy that originally came from
18 2600.com?
19 A. No.
20 Q. Has anyone ever told you that with respect to Sleepless in
21 Seattle, that that ever came from a DeCSS download?
22 A. No.
23 Q. Has anyone ever told you that any of the films contained
24 on 116B, told you they got there by virtue of the use of
25 DeCSS?
130
1 A. No.
2 Q. Has anyone ever told you that with respect to the Matrix,
3 that that had DeCCS applied to it?
4 A. No.
5 Q. Did you ever ask?
6 A. No.
7 Q. Do you know what the resources of the MPA are?
8 A. I don't, but I would assume they are considerable.
9 Q. Do you know any studies that the MPA made in November and
10 October and December of last year in an attempt to determine
11 when the crack was made?
12 A. No.
13 Q. Do you remember testifying on Saturday about documents you
14 had seen concerning the first cracking of CSS?
15 A. Yes.
16 Q. And to your knowledge, when was CSS first cracked?
17 A. Well, if you are willing to allow me to rely on hearsay,
18 then it would be 1997.
19 Q. Now, when you say if I'm willing to allow you to rely on
20 hearsay, tell me what that hearsay was based on.
21 A. You want me to rely on the very same kinds of documents
22 that you objected to when I attempted to testify to them on
23 direct.
24 THE COURT: Dr. Shamos, you just answer the
25 questions. Let Mr. Gold represent his client.
131
1 A. Web pages.
2 Q. Where were these web pages?
3 A. Out on the Internet, but I accessed them through a website
4 at Harvard which is maintaining information about this case.
5 Q. So, the website at Harvard told you, as I understand it,
6 that the first CSS crack was in 1997, is that right?
7 A. Not quite. It wasn't the website at Harvard. It was the
8 website at Harvard which pointed me to other sources, and in
9 reading those other sources there seemed to be agreement among
10 them, there is some dispute, but there is also some agreement
11 that CSS was first cracked in 1997, ostensibly prior to DeCSS.
12 Q. Now, do you know what the original site was that the
13 Harvard site sent you to?
14 A. There were many of them. I looked at several. I could
15 probably reconstruct for you which ones they are. Some of
16 them pointed to articles of a scholarly or semischolarly
17 nature that I had sent to me and therefore I relied on them.
18 Q. So, it's been no secret since at least 1997 that CSS has
19 been cracked, is that right?
20 MR. SIMS: Objection.
21 THE COURT: Sustained as to form.
22 Q. Do you know the way that the MPA searches out websites for
23 information concerning cracks?
24 A. No, that wasn't within the five minutes of conversation.
25 Q. Have you ever seen the documents that were given to
132
1 Mr. Schuman in this case concerning the MPA's investigation of
2 the CSS crack?
3 A. I have never seen any documents about any MPA
4 investigation.
5 Q. Do you have any idea how much money and investigative
6 resources the MPA has spent since November in order to
7 determine whether there is one single person who ever
8 downloaded and copied a DVD through DeCSS?
9 A. I would have no way of knowing that.
10 Q. Now, you were talking before a bit about the future. Is
11 it fair to say, sir, based on your expertise, that in the
12 future DVDs will probably replace videotapes?
13 A. Yes.
14 Q. And why is that?
15 A. Because the quality is extremely high, the convenience of
16 using a DVD is much greater, because one can skip around
17 arbitrarily inside the DVD, which you can't do easily with
18 videotape, and because DVD has CSS, and there are content
19 providers that are more willing to provide their content if
20 they think it can be protected.
21 Q. Do you have any idea of the amount of video sales that
22 have dropped as the amount of DVD sales have increased?
23 A. I don't.
24 Q. Do you know when the industry predicts that the videos
25 will be stopping and DVD market will just take over?
133
1 A. No.
2 Q. Let's for a minute get to your study. By the way, who
3 told you to perform this particular study?
4 A. Mr. Hart.
5 Q. This was not an independent research you did at the
6 university.
7 A. No, it itself isn't directly related to my university
8 research, although I expect I will be teaching about it
9 afterwards.
10 Q. It was a specific experiment for the purposes of your
11 testifying in this litigation, is that right?
12 A. Yes.
13 Q. And they picked you out presumably and modestly because
14 you were knowledgeable in the area.
15 A. Yes, I think so.
16 Q. And you were given, were you not, precise instructions on
17 how to carry out this study.
18 A. For that part of what I did, I was given precise
19 instructions.
20 Q. Tell me what you mean by "precise," and tell me who gave
21 you those precise instructions.
22 A. Well, I think in my direct testimony I was asked what I
23 was asked to do in the course of this study, and I listed all
24 of those instructions, and I thought I identified Mr. Hart as
25 the person who had asked me to do them.
134
1 Q. And you did exactly everything that Mr. Hart asked you to
2 do, is that right?
3 A. Yes, for that part of the study.
4 Q. You even prepared an affidavit and took out any reference
5 to the New York Times because Mr. Hart told you to take out
6 that reference, isn't that right?
7 A. Well, it didn't occur quite that way.
8 Q. Tell me how it -- well, let me ask the question then.
9 Did you originally prepare a document that made some
10 reference to the New York Times?
11 A. Yes I prepared a computer file on my computer.
12 Q. Does the final document that you have filed in this court
13 contain any reference to the New York Times?
14 A. No.
15 Q. And was there a conversation between you and Mr. Hart
16 concerning the deletion of the New York Times from your
17 affidavit?
18 A. Yes.
19 Q. Why?
20 A. In describing what I did when I went to 2600 News, that
21 there were a number of sites pointed to by 2600 News, and one
22 of them was the New York Times, and that wasn't the website
23 that we obtained the version of DeCSS from, so, one, it seemed
24 irrelevant to him that I mention the New York Times, but I
25 think he didn't want the New York Times, because it's a
135
1 newspaper, clouding the case up with First Amendment issues.
2 That's my impression.
3 THE COURT: Is that what he said or is that your
4 impression?
5 THE WITNESS: That's my impression.
6 Q. No, no. You testified on Saturday that he used the words
7 "First Amendment." Do you remember that?
8 A. I recall talking about the First Amendment. I don't
9 recall that I said that he said that.
10 Q. Who used the words "the First Amendment."
11 A. In my deposition testimony I used the words First
12 Amendment.
13 Q. And what did Mr. Hart say about making no references to
14 the First Amendment?
15 A. I don't believe he said anything. I think he said it
16 would be better to take out the reference to the New York
17 Times.
18 Q. And you understood why?
19 A. I believe so.
20 Q. And you did.
21 A. I did.
22 Q. Why did you put it in in the first place?
23 A. I don't know. I have been reading the New York Times
24 since I was a kid.
25 Q. Speaking about the New York Times, when the Napster case
136
1 first came out, was that a matter of great public attention?
2 A. Yes.
3 Q. And when the DVD case came out, this case, was that a
4 matter of great public attention?
5 A. It appears to have been.
6 Q. And hundreds and hundreds of newspapers carried this story
7 to your knowledge?
8 A. Carried this? I assume that hundreds and hundreds of
9 newspapers carried this story.
10 THE COURT: How many of the hundreds did you read?
11 THE WITNESS: I didn't read any. I just assume that
12 a story of great public interest would be carried through the
13 Associated Press.
14 THE COURT: If this is really relevant as to how many
15 newspapers, Mr. Garbus, get on Lexis and find out. Just as
16 you didn't want this witness giving me a lot of baloney about
17 how many people have DSL connections based on some impression,
18 which is a perfectly valid point you made, I don't think it is
19 helpful to get the same kind of testimony on this.
20 MR. GARBUS: I think this is a different issue.
21 Q. 2600.com, to your knowledge, did they cover the discovery
22 of the hack back in November?
23 A. I didn't see it back in November. I would surmize that
24 they did.
25 Q. And how many other websites covered the story, to your
137
1 knowledge, if any?
2 A. I don't have specific knowledge of any at that time, since
3 I didn't read it from the website at that time, but I wouldn't
4 be surprised if the number was significant.
5 Q. Have you ever read the Hacker Quarterly?
6 A. I have seen pages from the Hacker Quarterly. I'm not a
7 regular reader of it.
8 Q. Have you seen pages there referring to the CSS hack?
9 A. I don't recall whether I have. I might have actually in
10 preparation for this case.
11 Q. And have you seen any back issues where the Hacker
12 Quarterly talks about the 1977 hack of CSS?
13 A. 1997?
14 Q. Yes.
15 A. No.
16 Q. Now, when you went to HotBot, how many references did you
17 get to sites that had source code or object code?
18 A. Let me describe how the search was done. The search was
19 not organized nor would have it been feasible to obtain that
20 very easily.
21 What I asked for was all web pages that HotBot
22 indexes which contained the stream DeCSS. So DeCSS source
23 code would have come up, articles about DeCSS. Any use of
24 DeCSS as an acronym totally outside the context of this case
25 would also have appeared. The number was very large. The
138
1 reason I know it was large is that I abandoned looking at the
2 hits after I got through a few hundred of them.
3 Q. When was this again?
4 A. This was in preparation for this case, prior to my filing
5 the declaration.
6 Q. Approximately when in June?
7 A. Within the last month.
8 Q. And at that time did it indicate that 2600.com was posting
9 the DeCCS object or source code?
10 A. When you say "it," if you mean the list of hits?
11 Q. Yes.
12 A. Yes, I believe 2600.com was one of the hits. I visited it
13 and saw that it had references to the source code, but I
14 didn't see the source code itself on 2600.
15 Q. Did you check out any of these sites to see whether or not
16 there were not merely references to the DeCSS but the actual
17 object or source code itself?
18 A. Yes, I recall visiting a number of sites that had the
19 source code.
20 Q. And how many sites did you visit that had the source code?
21 A. A handful, but I would say something like between five and
22 ten.
23 Q. Was that object and source code?
24 A. The only place I actually recall seeing the object code at
25 that time was FM4.
139
1 Q. Now, you know what Infoseek is.
2 A. Yes.
3 Q. Is that the search engine owned by Disney, one of the
4 plaintiffs in this case?
5 A. I wasn't aware that it was owned by Disney, but I have no
6 reason to disbelieve it.
7 Q. Have you ever gone to Infoseek to see how many postings or
8 references they had?
9 A. I don't use Infoseek.
10 Q. Now, you didn't just get the DeCSS access accidentally,
11 did you, from 2600.com. You were specifically directed to go
12 there by the Proskauer firm.
13 A. I was specifically directed to go to the 2600 website and
14 obtain DeCSS from there, yes.
15 Q. Do you know of anyone other than you who has ever obtained
16 the source code or the object code from 2600.com?
17 A. I don't know, but I assume that the network administrator
18 ought to know.
19 MR. GARBUS: I move to strike "I assume."
20 THE COURT: Stricken after "I don't know." Mr.
21 Shamos, just answer the questions.
22 Q. Let's get to your test for a moment. So after you meet
23 Proskauer, and after you read the affidavits, and after you
24 and Mr. Hart had this discussion about the First Amendment,
25 then what happened?
140
1 A. No, this was not after we had the discussion about the
2 First Amendment. The test occurred before then.
3 Q. Okay. Tell me about the test again.
4 THE COURT: You think you might want to make that a
5 little more specific.
6 MR. GARBUS: Okay.
7 Q. You said that the test had several steps, as I remember.
8 First you had to find DiVX, is that right?
9 A. Well, when you say we had to find DiVX, we had to find
10 #DiVX. That was one of the steps to engage in a chat, to
11 engage another DiVX.
12 Q. By the way, how long have you been on computers?
13 A. Since 1962.
14 Q. And how much of your day is spent on computers?
15 A. Oh, a normal day it's huge. More than four hours.
16 Q. So it's fair to say that with respect to computers or
17 surfing or the Internet you are fairly -- and I know you would
18 say this modestly -- a sophisticated user of computers?
19 A. I think so.
20 Q. By the way, you mentioned that you teach corporations
21 also, is that right?
22 A. Yes.
23 Q. And from that you earn about $700,000 a year?
24 A. It may turn out to be that this year.
25 Q. And you teach them about computers and other technologies?
141
1 A. Well, it's more specific than that. I teach --
2 Q. Tell us what it is.
3 A. I teach courses in e-commerce technology. That's
4 typically what the corporations are interested in now. They
5 are interested in having their people who have been casual
6 Internet users learn more about how the Internet works, and so
7 I give a very concentrated crash course that lasts for two
8 days, consist of ten lectures. It's basically a condensed
9 version of one of our full courses at Carnegie Mellon
10 University on that topic. I also give courses to them on
11 Internet law, and I give a simplified version of the
12 e-commerce technology course for people who aren't
13 technologically sophisticated.
14 Q. Tell me something about the academic qualifications of
15 your assistant.
16 A. My assistant has completed or is within one course of
17 completing a dual degree program at Carnegie Mellon including
18 receiving a degree in computer science.
19 Q. Has the computer system in Carnegie Mellon changed very
20 much with respect to speeds over the last six months?
21 THE COURT: I think you need to be more specific
22 about speeds of what.
23 Q. The LAN, local area network, has that changed?
24 A. I don't know, but I have not experienced any such change.
25 Q. Over how long a period of time?
142
1 A. I believe I have had the same level of network access at
2 CMU for at least the past two years.
3 Q. So that the same levels of speed that exist today with
4 respect to LAN are the levels of speed that existed two year
5 ago?
6 A. Available to me at CMU, I believe so, yes.
7 Q. And with respect to students' availability?
8 A. I believe students' availability has not been increased
9 during that time.
10 Q. So, for the last two years --
11 A. Well, I'm sorry. Students in dormitories.
12 Q. By the way, how many students does Carnegie Mellon have?
13 A. Approximately 5,000.
14 Q. And this may sound strange, but did school end June 15th
15 this year?
16 A. School ended actually around the middle of May, but there
17 are a number of programs that run for 12 months. The
18 E-Commerce Institute for example is a 12 month program.
19 Q. You say school basically ends in May. Then when does it
20 begin?
21 A. Late August.
22 Q. So, at the time that you did your study school was
23 basically out.
24 A. I don't agree that school was basically out. The
25 undergraduate program was in recess.
143
1 Q. And how many students are there in the undergraduate
2 program?
3 A. About 4,000.
4 Q. Do you think that based on your expertise that the amount
5 of usage on the computers when school was out or basically out
6 is different than when school is in?
7 A. Yes.
8 Q. Did you ever state in your report that at the time that
9 you made these studies Carnegie Mellon University was
10 basically out of school?
11 A. I did not so state.
12 Q. Did anyone at Proskauer ever ask you about whether the
13 information you put in the report reflected the normal usage
14 at Carnegie Mellon?
15 A. No, I don't think there is any reference in there about
16 normal usage.
17 Q. Do you have any idea how long it would take to make the
18 same transmissions in the middle of the school year?
19 A. No.
20 Q. By the way, wasn't some of this study done after midnight?
21 A. Yes.
22 Q. And tell me why? Is there a difference with respect to
23 the number of people who use the Internet in the middle of the
24 day and after midnight?
25 A. Yes.
144
1 Q. Did you say in your report what time you conducted these
2 studies?
3 A. No. The studies were conducted at various times during
4 the day. I can state that no particular effort was made --
5 MR. GARBUS: Can I ask the question? Judge, may I?
6 THE COURT: Yes, of course.
7 Q. Did Mr. Hart tell you at what time he wanted these studies
8 conducted?
9 A. No.
10 Q. Did you know that to conduct the studies after midnight,
11 when school is out, would bring you a different result than
12 conducting these studies when school is in session during the
13 middle of the day?
14 A. Well --
15 Q. Just answer that yes or no, please.
16 A. Do I know that there is a difference?
17 Q. Yes.
18 A. Yes.
19 Q. So --
20 THE COURT: We will take the afternoon break here,
21 about ten minutes.
22 DEPUTY COURT CLERK: All rise.
23 (Recess)
24 THE COURT: The witness has just indicated to me that
25 if there is any possibility, Mr. Garbus, that you could finish
145
1 today, he would be grateful. And I would be prepared to stay
2 a little later if that will accommodate him. I don't know
3 whether it will or not. I would do that for anybody. So, you
4 will let me know. Proceed.
5 BY MR. GARBUS:
6 Q. You were mentioning your assistant Eric before.
7 A. Yes.
8 Q. Did he become your assistant because he was an especially
9 qualified student in this area?
10 A. Well, when you speak of "this area" I can tell you how he
11 became my assistant. He is my assistant for two purposes. He
12 has worked for me for two and a half years on the Universal
13 Library project, and in fact his involvement with that project
14 predated my return to Carnegie Mellon University in 1998.
15 He was already doing some work as a college sophomore
16 at the Universal Library, and then I became his college
17 supervisor and we worked closely together in the last two and
18 a half years.
19 When I was asked to become involved in this case, it
20 clearly involved somebody who was familiar both with the video
21 technology, the Internet and somebody who had the right
22 vocabulary to be able to participate in activities resulting
23 in the collection of DiVXs, and Eric, of all the people I know
24 at Carnegie Mellon University, was the best suited person to
25 do that.
146
1 Q. So, it took the two of you highly qualified people in the
2 middle of the summer, when school was out, in the early
3 morning hours, approximately 20 hours to download the DVD and
4 send it, is that right?
5 A. That's not quite correct. As you have stated, obviously
6 if something took 20 hours, it couldn't have all been in the
7 middle or early morning hours.
8 Q. Thank you. Now tell me the timing when this started,
9 because I didn't see it in your report.
10 A. We purchased a computer on Friday afternoon, had it back
11 at the university at 3 p.m. and immediately began the steps
12 involved at that time.
13 Q. Is there any document which indicates you started at 3
14 p.m.
15 A. No.
16 Q. Who told you what kind of computer to buy?
17 A. No one did. We needed a computer that was clean and had
18 the capability to do what we were being asked to do.
19 Q. Who?
20 A. Mr. Hart. As I testified, he didn't tell me what kind of
21 computer to get. He told me to get a computer that would be
22 able to do the following things. We went to Comp USA,
23 reviewed the ones that were in stock and available and bought
24 one which could do the job.
25 Q. And this was done on the week before the July 4th weekend,
147
1 is that right?
2 A. That is my recollection.
3 THE COURT: So this was the Friday that commenced the
4 holiday weekend, is that correct?
5 Q. Is that right, sir?
6 A. I'll have to review. Yes.
7 THE COURT: So this was done in the early morning
8 hours over the 4th of July weekend?
9 THE WITNESS: No, it was -- I --
10 THE COURT: You might even have gotten technical
11 support on the phone.
12 MR. SIMS: Your Honor, I think --
13 A. Yes, I left for vacation early morning Saturday, July 1.
14 I wrote the affidavit on June 30, and so I had sent off the
15 affidavit prior to my leaving for the 4th of July weekend, so
16 it was all completed before then.
17 Q. I'm not clear. Maybe you answered the question to the
18 Judge, but I didn't hear it. So this was done on a Friday?
19 A. My recollection is that that's the day that we purchased
20 the computer.
21 Q. Have you ever before been in your lab or in your office on
22 a July 4th weekend at 3 or 4 in the morning to conduct any
23 kind of tests?
24 MR. SIMS: It misstates the testimony. The witness
25 has indicated on Friday, the 23rd.
148
1 THE COURT: Sustained. Sustained.
2 THE WITNESS: Something hardly seems right to me
3 about this, because if -- June 30 was a Friday. It's
4 impossible for us to have purchased the computer the afternoon
5 on Friday and had all of this completed by Friday.
6 Q. What are you referring to, by the way?
7 A. The document I'm referring to? I'm looking at my own
8 declaration. So, we must have purchased the computer prior to
9 that, probably the previous Friday.
10 Q. Okay. And tell me what happens after you purchased the
11 computer. I'm sorry to be slow about this but ...
12 A. I went through all this on direct. We purchased the
13 computer.
14 Q. But some of this you didn't go through on direct.
15 A. Well, I think I went through the steps but...
16 THE COURT: Let's not argue about whether you did.
17 Let's just do it.
18 A. After getting the computer and buying the DVDs at Comp
19 USA, we immediately returned to Carnegie Mellon University,
20 set up the computer, connected to the network and went through
21 all of the steps involved in obtaining DeCSS and running DeCSS
22 to obtain a DeCSS'd copy of Sleepless in Seattle.
23 Q. When you say "we" it's you and Eric together at this time?
24 A. Yes.
25 Q. So you and Eric buy the computer, you and Eric download
149
1 the programs, you and Eric get the DeCSS?
2 A. Yes, and we DeCSS'd Sleepless in Seattle.
3 Q. Had you ever gotten DeCSS before?
4 A. No.
5 Q. Had you ever used any of the other programs such as DVD
6 Rip?
7 A. No.
8 Q. Do you know what it is?
9 A. Yes.
10 Q. What is it?
11 A. DVD Rip is a program that creates DiVXs from DVD.
12 Q. Do you know how long it takes to create a DiVX from a DVD
13 with DVD Rip?
14 A. No.
15 Q. Do you know if it's ten times faster than using DeCSS?
16 A. No.
17 Q. Did you ask anybody at Proskauer whether or not there
18 weren't other "copying techniques" that were ten to 20 times
19 faster than DeCSS?
20 A. No.
21 Q. Was it worth your while to get a free copy of Sleepless in
22 Seattle, to spend 20 hours working through the night over the
23 weekend?
24 MR. SIMS: Objection.
25 THE COURT: Sustained.
150
1 A. Well --
2 Q. Can you think of anybody in their right mind --
3 THE COURT: Sustained. I'm afraid of the answer.
4 Q. Do you know anything about DOT Stripper?
5 A. Yes. I don't think there is a T in it, but I've heard of
6 it.
7 Q. What does that do?
8 A. It appears to be another program that rips DiVX.
9 Q. And do you know how long it takes that program to do it?
10 A. No.
11 Q. Have you ever done it?
12 A. No.
13 Q. How about your assistant Eric, has he ever done that?
14 A. I don't know.
15 THE COURT: When you say it rips DiVXs, what exactly
16 do you mean?
17 THE WITNESS: It creates DiVXs from an MPEG2 stream,
18 video stream.
19 Q. You said on Saturday one of the reasons you chose Eric was
20 because he also knew something about the piracy underground
21 and where to get information. Do you recall that?
22 A. Yes.
23 Q. Tell me what Eric knew and tell me why that was relevant
24 to this inquiry.
25 A. Okay. Of course in the two and a half years that I have
151
1 known Eric we have engaged in many conversations. He has
2 occasionally invited me into his office to say something like,
3 hey, take a look at this. And in fact only a few months ago,
4 before I had heard about this case, he hurriedly called me
5 into his office and said, what do you think of this? And I
6 was watching a video movie, and I asked him at what bit rate
7 it is required for you to get something of this quality, and
8 he said 500 kilobits, and I didn't believe it and he explained
9 to me how it was done, and it was a DiVX.
10 Q. Is one of the reasons that you chose Eric was because he
11 had this background of knowing the underground Internet world,
12 as it were?
13 A. That was one of the reasons. I had to review all of the
14 people that I knew that I could engage on a relatively rapid
15 basis on this project because of the time frame, and Eric was
16 the ideal one.
17 Q. Do you know what a ripper is?
18 A. I have heard of it.
19 Q. Have you ever used it?
20 A. No.
21 Q. Do you know how long, has anyone ever told you how long it
22 takes you utilizing that to make a DVD?
23 A. No.
24 Q. Do you know if it's ten times as fast as DeCSS?
25 A. No.
152
1 Q. Have you ever heard of Read DVD?
2 A. No.
3 Q. Have you ever heard of CSS Cat?
4 A. No.
5 Q. Have you ever heard of CSS Auth., A-U-T-H?
6 A. Not a level where I could say anything about it. I may
7 have encountered the word.
8 Q. In any event, these things you haven't heard of I presume
9 you never used?
10 A. I presume so too.
11 Q. How about CSS Descramble?
12 A. No.
13 Q. How about something called Anonymous Source, have you ever
14 heard that term before?
15 A. I have heard the term. I don't know what it means.
16 Q. Do you know what the speed of CMU's Internet connection
17 was two years ago?
18 A. I'm assuming that the Internet connection available to me
19 was probably the same speed that it was two years ago.
20 Q. And students?
21 A. Students -- everybody at CMU, we have only one gateway to
22 the outside world, and it's through the Pittsburgh Super
23 Computer Center, so everybody goes out the same way.
24 Q. Would that be the same four years ago both with respect to
25 CMU Internet speed and LANS?
153
1 A. I don't know.
2 Q. Now, with respect to these other universities, do you know
3 whether or not their Internet speeds have changed or their LAN
4 speeds have changed over the last four years?
5 A. The general trend is that people's LAN speeds and people's
6 Internet speeds are increasing. I don't have specific
7 knowledge about other universities.
8 Q. Why is it that CMU's is not if everyone else's is
9 increasing?
10 A. The first question you asked me is over the past two
11 years. The second question is over the past four years.
12 Q. Let's make it over the last two years. To your knowledge,
13 isn't it true that LAN speeds and Internet speeds over the
14 major universities have not changed?
15 A. I don't know that.
16 Q. Do you know what Northern Lights is?
17 A. Northern Light is a search engine.
18 Q. Did you ever look on Northern Light to see whether or not
19 they had mirror codes or any references to DeCSS?
20 A. No, HotBot is my default search engine.
21 Q. Would it surprise you to learn that there are over 700,000
22 references on Northern Light?
23 MR. SIMS: Objection. It assumes facts not in
24 evidence.
25 THE COURT: Well, it's cross. I mean obviously the
154
1 question is no evidence of the facts.
2 A. It would not surprise me to learn that there are 700,000
3 pages on the web that have the stream DeCSS in them.
4 Q. Of those 70,000 pages would it surprise you to learn that
5 300,000 are mirror sites?
6 MR. SIMS: That really does assume facts not in
7 evidence.
8 THE COURT: It depends on what would surprise him.
9 If it surprises him that pigs fly, it doesn't prove that pigs
10 fly.
11 A. It would surprise me because that number seems huge to me.
12 Q. Do you have any idea as you sit here today how many sites
13 in the United States have DeCSS in object or source code?
14 A. No.
15 Q. As you sit here today, do you have any knowledge about how
16 many sites outside of the United States have DeCSS in object
17 or source code?
18 A. No. There are at least some.
19 Q. By the way, after you went to your HotBot, did it occur to
20 you to go to any other search engines?
21 A. I did actually go to Google, G-O-O-G-L-E.
22 Q. Thank you very much. And what did Google indicate?
23 A. Google indicated a large number of sites having pages
24 containing the stream DeCSS.
25 Q. How many pages?
155
1 A. I don't know.
2 Q. More or less than 10,000?
3 A. I don't know.
4 Q. Did you go to Yahoo?
5 A. No.
6 Q. Does AOL have a search engine?
7 A. I believe AOL licenses a search engine from outside. A
8 search capability is available through AOL.
9 Q. Did anyone at the MPAA or at Proskauer ever tell you that
10 the Disney search engines Infoseek and Go link to mirror sites
11 of DeCSS and CSS?
12 A. No.
13 Q. Now, do you know the Internet connection from Carnegie
14 Mellon University to the Internet?
15 A. Well, it depends what you mean. There is a very fast
16 connection between CMU and the Pittsburgh Super Computer
17 Center. The Pittsburgh Super Computer Center routes through a
18 number of back bones in the United States. I am not familiar
19 with the speeds of those back bones, but in general they are
20 very high.
21 Q. Are they the same that existed two years ago?
22 A. I don't know.
23 Q. When you say it's very fast --
24 A. Yes.
25 Q. -- do you have any sense of what that is?
156
1 A. Well, CMU is an advanced technological university with a
2 world wide reputation in computer science. We try to have the
3 best stuff and as fast communications as we can rationally
4 afford.
5 Q. Isn't it fair to say that CMU is one of the leading
6 schools in the United States with respect to this entire area
7 and has one of the best Internet and LAN connections in the
8 United States?
9 A. Yes, but it's by no means unique.
10 Q. Getting back to your test again. After you downloaded
11 DeCSS -- and as I understand it, from the time you found the
12 DiVX until you downloaded the DeCSS was about an hour, 30
13 minutes for each process.
14 A. It was between 30 minutes and an hour. It was about 45,
15 the total the first time we did it.
16 Q. Then you went to the tutorial, is that right?
17 A. Wait a minute. The first thing that we did is to go from
18 the DVD to run DeCSS to produce the DeCSS version of the DVD.
19 That was the part that took 45 minutes the first time.
20 Q. Right. Then what happened?
21 A. Then we attempted to make the DiVX by going to --
22 Q. Was that at the same time, right afterwards or a different
23 day different time?
24 A. It was later the same day.
25 Q. Can you tell me what time that was?
157
1 A. My recollection is that it was late.
2 Q. What time?
3 A. Well, approximately 10 o'clock at night.
4 Q. So, let me see if I understand. So at 10 o'clock at night
5 you and Eric went where to do this?
6 A. We didn't go anywhere. We were where we were. He was in
7 his office and I was in my office.
8 Q. 10 o'clock at night.
9 A. Yes.
10 Q. And had you prior to that time -- what time had you
11 finished the other process, namely obtaining the DeCSS?
12 A. The first Sleepless in Seattle DeCSS was finished in the
13 afternoon, approximately 5 p.m.
14 Q. Let me see. I think I may be getting confused.
15 With respect to the first film Sleepless in Seattle,
16 about what time did you get the DeCSS onto your computer?
17 A. About 5 p.m.
18 Q. Okay. And then you started to deal with DiVX at 10
19 o'clock that night, is that right?
20 A. Yes.
21 (Continued on next page)
22
23
24
25
158
1 Q. And had you and Eric made an appointment to do it at 10
2 o'clock that night?
3 A. No.
4 Q. Why didn't you start it at 5 o'clock as soon as you had
5 DeCSS?
6 A. Because we were both busy with many other things going on
7 at the same time and I had to spend time preparing some
8 lectures. I just wasn't available to do it at that time and I
9 recall that he had to eat.
10 Q. So, it's now 10 o'clock at night. This is Friday night
11 and where are you?
12 A. Again, I don't recall whether it was Friday night. That
13 seems inconsistent with the scheduling. It might have been
14 Tuesday night. I'm going to have to check the sales receipt
15 on the computer. That will tell us the date that it began.
16 Q. Do you have that with you?
17 A. No, it's on my mantle in my bedroom at home.
18 Q. Now, so let's assume it's 10 o'clock at night now. It's
19 you and Eric, is that right?
20 A. Yes.
21 Q. Then what happens?
22 A. Then what happens is the process of learning how to do
23 DiVXs begins from FM4.org.
24 Q. The process of learning?
25 A. Yes.
159
1 Q. This was the first time you had ever done it?
2 A. Yes.
3 Q. So, you had to learn it?
4 A. Well, I certainly had never done it before.
5 Q. Had Eric ever done it?
6 A. I don't know, but what we wanted to do was to go through
7 this as if we had done nothing about it, so we wouldn't be
8 making any implicit use of his expertise.
9 MR. GARBUS: I presume Eric is out of the room
10 because he's a potential witness or we think it's a potential
11 witness, but pending a resolution of that wish, I would hope
12 that he's not in the room.
13 MR. SIMS: I don't know whether he's in the room or
14 not.
15 THE COURT: He's just leaving.
16 MR. GARBUS: Can I hear the last question, please?
17 (Record read)
18 Q. Let me see if I understand? So, at this point, you don't
19 know whether he's done it or not, is that right?
20 A. That's right.
21 Q. So, it may be that prior to this time, he's done it 30
22 times or never, is that right?
23 A. Yes.
24 THE COURT: I think we all know what "don't know" is.
25 MR. GARBUS: I sometimes do.
160
1 Q. Now, tell me how long did it take you to do the tutorial?
2 A. To do the tutorial? O.K., the process of creating the
3 DiVX was done in pieces. There are a number of steps that you
4 have to remember, as I testified before, using the exhibits.
5 The most part of the process is merging the audio and
6 video, which is largely a trial and error process. The
7 various steps were broken up. This wasn't done in 20 hours
8 consecutively at a time.
9 Q. You say it's a trial-and-error process?
10 A. Yes.
11 Q. The fact that Eric, whatever expertise -- he brought
12 whatever expertise he had to this, certainly made the trial
13 faster and the errors fewer, is that right?
14 A. Assuming he brought relevant expertise, which I don't
15 know.
16 Q. Now, did you also, as you were going through this, learn
17 something about the tutorial?
18 A. Yes.
19 Q. And how long were you on the tutorial?
20 A. The tutorial can be read in easily within 15 minutes.
21 Q. And you and Eric were both there reading it?
22 A. I read pieces of it with him and sat there with him while
23 we were engaging in some of the steps. Others, I went off to
24 my own office and read.
25 Q. It would be very helpful if you could just tell me when
161
1 "we" means you and Eric or "he" means you and Eric, or
2 whatever. Tell me when you're there and where Eric is there.
3 A. O.K., of the 20-hour process, my participation in it was
4 heavy at the beginning and sporadic thereafter until it was
5 completed.
6 Q. So, it's now 10 o'clock. You had gone through the
7 tutorial, then what happens?
8 A. We began the initial steps together. We did not complete
9 the final steps together. Eric did that.
10 Q. Now, you say there are difficulties in synchronization?
11 A. Yes.
12 Q. And tell me what those difficulties are?
13 A. The difficulties are that after applying the tools that
14 are listed on FM4, you end up with a separate audio track and
15 a separate video track.
16 The audio track and video track have to be
17 synchronized together so that when people are speaking, the
18 sounds correspond to the movement of their mouths. There a
19 are apparently many effects that occur that make it difficult
20 to cause the synchronization to happen. In fact, there may
21 even apparently be some DVDs that one can DiVX properly
22 because you can't get the synchronization error.
23 In the particular case of Sleepless in Seattle, we
24 believe it had to do with the difference in frame rate between
25 the trailer and the movie proper.
162
1 Q. So, if you can't do that synchronization with respect to
2 the -- with respect to the DiVX, that means with respect to
3 certain films, that means DeCSS is useless with respect to
4 certain films?
5 A. No, I don't say that. Because it's not my understanding
6 that following the steps from FM4 is the only way to create a
7 DiVX from a DeCSS DVD.
8 Q. To your knowledge then how long -- by the way, had you
9 ever -- I presume you had never prior to this time attempted
10 the synchronization process?
11 A. No, I never have.
12 Q. To your knowledge, had he ever attempted synchronization
13 process?
14 A. I think he had.
15 Q. And how many times had he done that?
16 A. I don't know.
17 Q. So, he was somewhat expert at it?
18 A. I'm not sure that it would be right to say he was expert
19 at it. He may have had relevant expertise and may have done
20 it sometimes. I don't know how many times. He's generally
21 familiar with the problem of synching audio and video, that is
22 true.
23 Q. And do you have reason to believe that without Eric, you
24 would have been able to do the synchronization?
25 A. I believe I would have been able to do it.
163
1 Q. And how long would you think -- withdrawn.
2 How long did the synchronization process take?
3 A. About 10 out of the 20 hours.
4 Q. And tell me what's involved in that process.
5 A. What one has to do is run some tools, try out the result,
6 pick various pieces of sound track and try and match them up
7 with the video track, merge them together, take a look after
8 them, see if they are in ink. If they aren't, go back, make
9 an adjustment, do it again. That's what I meant by "trial and
10 error."
11 Q. Would you agree with me that that's very tough stuff?
12 A. It is not fun.
13 Q. Not only not fun, it's very, very difficult; isn't it?
14 A. Well, very, very difficult is relative. It's a lot easier
15 than making the movie in the first place.
16 MR. GARBUS: Thank you very much.
17 Q. Now, when he was trying to do this for the 10 hours -- by
18 the way, the synchronization process, if you do DVD rip, do
19 you have to do that?
20 A. I don't know.
21 Q. If you do DVD ripper, do you have to do that?
22 A. In general, the result is separate audio and video stream,
23 then you have to synchronize them. If the result is something
24 else, then you don't.
25 Q. Now, with respect to this 10 hours that he was there, how
164
1 much of that time were you there?
2 A. I wasn't there during that 10 hours.
3 Q. So, you start at 10:00 o'clock at night, I gather he's
4 working until -- let's say 10 hours would mean 8 in the
5 morning, is that right?
6 A. No, no. I think I testified that the various pieces of
7 creating the DiVX'd were done in separate chunks. They were
8 not done 20 hours consecutively.
9 Q. So, it's 10 o'clock some night, let's say either Tuesday
10 or Friday. Let's call it X night. Then when we go -- let's
11 call it night No. 1. Is that all right?
12 A. Yes.
13 Q. Now, let's go to day No. 2.
14 A. Yes.
15 Q. Tell me what happens.
16 A. I don't recall. I don't -- there were so many things were
17 going on at the same time, I don't remember the different
18 times that I stopped in to Eric's office to find out what
19 particular step was in process at that time. I can't put that
20 together for you.
21 Q. So, but on day 2, I'm just having trouble. It's 10
22 o'clock at night. At some time, do you leave that office or
23 does he leave that office?
24 A. It was done in his office, so you would be the one to
25 leave.
165
1 Q. So, he's there at 10 o'clock on night on day 1. What time
2 does he leave the office?
3 A. I don't know.
4 Q. Are there any notes that are made about when he leaves the
5 office?
6 A. I don't have any. It's possible that he might, but I
7 doubt it.
8 Q. So, after he leaves the office, then what happens? Do you
9 see him the next day?
10 A. Yes.
11 Q. And what time on day 2 do you see him?
12 A. I don't recall.
13 Q. And when you see him, has he gone through this 10-hour
14 process?
15 A. No, there are still more steps to do.
16 Q. How much has he done the first time that you see him?
17 A. My recollection is that when I saw him, I said, how is it
18 going? He said, it's going fine. I said, is it done? No,
19 there's a lot to do yet.
20 My involvement during this process was largely
21 getting and cajoling and making sure that he was actually
22 working on it and getting toward a conclusion.
23 Q. And when did he have the conclusion of the
24 synchronization?
25 A. I don't recall that either. However, we can probably
166
1 reconstruct it easily because the -- it was right after he
2 completed it when we attempted to the trade with eaRoSoL.
3 Q. And when is that?
4 A. So, now I see from the declaration that the log of that is
5 Tuesday, June 27th. So, the Fridays that we are talking about
6 were the week prior to the start of the July 4th weekend.
7 Q. So that Tuesday, July 27th, that's day 1?
8 A. No, Tuesday July 27th is when we engage in the Internet
9 relay chat to try to trade the DiVX. We couldn't trade the
10 DiVX until we had the DiVX, so it was done by then.
11 Q. So, it's June 27th that you're starting to do the chat, is
12 that right?
13 A. Yes.
14 Q. Now, how do you know that it took 10 hours from 10:00 p.m.
15 the night before to the time you do the chat to do the DiVX'd?
16 A. I asked Eric how long it took him to do the
17 synchronization, how much of the 20 hours he spent. He said,
18 10 hours.
19 Q. And you never saw how many hours he spent at what time or
20 anything like that?
21 A. No.
22 Q. And you never asked him for any report, is that right?
23 A. I certainly never asked him for any written report. I
24 certainly asked him to narrate to me the steps that he took.
25 Q. Did you know that you were being asked to prepare this
167
1 information for the purposes of filing an affidavit in court?
2 A. Yes.
3 Q. Did you know that you were being asked to prepare this
4 information for the purpose of testifying in court?
5 A. I assumed I would be called to testify.
6 Q. Did anybody at the Proskauer firm suggest to you that you
7 keep time sheets?
8 A. No.
9 Q. Did anybody at the Proskauer firm suggest to you that you
10 use Eric or was that your idea?
11 A. They didn't know Eric. It was completely my idea.
12 Q. When for the first time did they learn that your assistant
13 or associate had participated in this test?
14 A. O.K., I think that when Mr. Hart gave me an outline of
15 what he wanted us -- what he wanted me to do, I said, I'm
16 going to have to engage an assistant to do this. And he said,
17 O.K.
18 Q. He didn't say, keep any records?
19 A. Yes.
20 Q. Of the experiment?
21 A. No.
22 Q. So, with respect to whether it's 10 hours, 20 hours or 60
23 hours, all that we have is either your word or your
24 assistant's words?
25 A. That's right, along with individual pieces of documentary
168
1 evidence like the IRC log.
2 Q. Now, with respect to the IRC log, is the entire log here?
3 A. No, I've testified already about exactly how this log
4 differed from the other log in the creation of this log and
5 the addition, subtraction of the single first line on this.
6 Q. Where is the rest of the log?
7 MR. SIMS: Objection. The witness' testimony is
8 clear. This is the entire log that was transcribed with
9 respect to the Matrix.
10 THE COURT: Is that right, Mr. -- Dr. Shamos?
11 THE WITNESS: O.K., there are two logs. There's a
12 log of the initiation of the IRC session when there are a
13 bunch of people, more than two people in the chat room
14 talking, then after you engage with a single person, there's a
15 separate log of the so-called private conversation that takes
16 place. This is the complete log of the private conversation.
17 Q. And where -- and is there another log of the other
18 conversation?
19 A. I believe there is.
20 Q. And where is that?
21 A. If it exists, it would be on the laptop.
22 Q. Would you please produce it?
23 MR. SIMS: Your Honor, at lunchtime, we provided
24 that. We showed that log to Mr. Hernstadt at least in part.
25 We made arrangements. It contains some items relevant to
169
1 other matters other than this lawsuit and this engagement and
2 we made arrangements to make it available with those excisions
3 after we leave today.
4 THE COURT: All right.
5 MR. GARBUS: I'm sorry. I wasn't part of that
6 conversation. Which excisions?
7 MR. SIMS: The ones that have nothing to do with this
8 lawsuit and an engagement by Proskauer.
9 MR. GARBUS: I would ask that those documents be
10 given to the Court and the Court make the determination about
11 whether or not we are entitled to see it.
12 THE COURT: I'm going to accept the representation
13 unless I see some reason not to.
14 Q. Now, after the first 10 hours, then what happens?
15 A. Well, the first 10 hours of the DiVX'ing process takes us
16 up to the point where the multiplexing needs to occur and
17 that's where the trial-and-error part of that process begins.
18 Q. On the log that we have which is in your exhibit there is
19 certain information redacted.
20 A. The log of what?
21 Q. It's the log which is attached to your affidavit.
22 THE COURT: What exhibit are you referring to,
23 Counsel?
24 MR. SIMS: Your Honor, as you've seen, the exhibit
25 that we moved into evidence has no redactions.
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1 THE COURT: 115A is what I understand we have been
2 discussing as "the log."
3 MR. GARBUS: The affidavit that we had originally
4 been given had redactions, I gather, of the exhibit.
5 MR. SIMS: Your Honor, Mr. Garbus has had the
6 unredacted copy more than a week.
7 MR. GARBUS: Pardon me?
8 THE COURT: Look, I really don't have to have any of
9 this. Mr. Garbus, rather graciously acknowledged that he was
10 looking at the wrong piece of paper and I don't need any of
11 this.
12 Q. Let me show you Defendant's Exhibit BBH and at page --
13 MR. SIMS: May I have a copy?
14 MR. GARBUS: Pardon me?
15 MR. SIMS: May I have a copy?
16 THE COURT: I would like a copy too, Mr. Garbus.
17 Thank you.
18 Q. And the first sentence VaioBoy, "Anybody have any DiVX's
19 to trade for Sleepless in Seattle?"
20 A. Yes.
21 Q. Did that come off a log?
22 A. No, I explain that in deposition and earlier in testimony
23 today.
24 Q. So, in other words, you typed that in, although it wasn't
25 there originally in the log, is that right?
171
1 A. That's correct.
2 Q. And why did you do that?
3 A. I typed it in because Eric told me that's what the
4 statement that he made on IRC chat and it was necessary to
5 make the log make sense.
6 Q. Now, did you in your declaration indicate that any part of
7 the log had been typed in and did not reflect what the log
8 itself was?
9 A. No.
10 Q. When you spoke to Mr. Hart, did you and he discuss whether
11 or not that was an accurate transcript --
12 A. No --
13 Q. -- of the log?
14 A. No.
15 Q. Did Mr. Hart know that that first sentence in the log did
16 not appear in the log?
17 A. I don't believe he knew that.
18 Q. So, now we are into -- we have synchronized it and then
19 what happens?
20 A. We play it to verify that it's synchronized and then we
21 are ready to trade.
22 Q. Who's the "we"?
23 A. Eric and I, because he, after he was done, he was
24 naturally excited to tell me so and he came and got me in my
25 office and we looked at the result, the DiVX'd.
172
1 Q. He was excited because he achieved something that was very
2 difficult?
3 A. I don't know why he was excited. I presume he was excited
4 because he knew he had achieved the result that we were after.
5 Q. And what was the result you were after?
6 A. A DiVX'd of a decrypted DVD.
7 Q. And at that time, do you know whether or not that had
8 originally -- withdrawn.
9 So, what time are we now on, day 2?
10 A. As I say, I don't recall.
11 Q. And after he tells you he synchronized it, that took 10
12 hours, and then what happens?
13 A. Then it's time to trade with whoever we can get to trade
14 another DiVX for ours.
15 Q. And what time do you start to trade?
16 A. Approximately between 11 and midnight.
17 Q. 11 and midnight during the time when -- I won't belabor
18 it -- school is out?
19 THE COURT: I got it the first time, Mr. Garbus.
20 MR. GARBUS: I just wanted to know it's out every
21 day.
22 Q. So, it's 11 o'clock at night and we have Eric sitting in
23 his office?
24 A. Yes.
25 Q. And where are you?
173
1 A. I'm in his office.
2 Q. And then what happens?
3 A. He says, I'm going to try to find somebody we can trade
4 with. He goes off and does so. I come back a little while
5 later while he's in the middle of this chat session. I was
6 fascinated by the dialogue.
7 Q. Can I ask you something, just so I get it clear. So, the
8 trading then is four days after all this starts?
9 A. As I say, I have to check the record of when we purchased
10 the computer to know on the date on which this starts.
11 Q. But is it your best memory now that it takes from the time
12 you purchase the computer to the time you start trading the
13 four days?
14 A. It's not my best recollection. It isn't my recollection.
15 It's possible that it was. But it did not involve continuous
16 work because both of us had many other things to do at the
17 same time.
18 Q. Now, so you start trading at 11 o'clock at night?
19 A. Yes.
20 Q. Then what happens?
21 A. Well, after Eric made the deal with eaRoSoL to do the
22 trading, he initiated the simultaneous upload and download and
23 I repaired to my office to finish up some work.
24 Q. Do you know the speed of the eaRoSoL connection?
25 A. We don't know the speed of the connection. We have
174
1 surmised about the speed of the connection. We know the speed
2 that was actually achieved during the transfer.
3 Q. Now, let me ask the question again. Do you know the speed
4 of the connection?
5 A. No.
6 THE COURT: He said no.
7 Q. Do you know to what extent the theoretical capacity of the
8 speed was utilized?
9 A. From our surmise, we believe it was approximately a third.
10 Q. And this is at -- were you there while the conversation
11 was going on on the chat room?
12 A. Yes, for part of it.
13 Q. For how long did it go on in the chat room?
14 A. Oh, it was reasonably short time.
15 Q. How long?
16 A. I don't know. I wasn't there for the entire time. I
17 stayed for a few minutes of it and was interested in the
18 VaioBoy handle and some of the language that was being used in
19 the transcript.
20 Q. Do you recall testifying at your deposition?
21 THE COURT: Excuse me, Mr. Garbus. Before you ask
22 that question.
23 The log, what you've identified as the log,
24 Plaintiff's Exhibit 115A says: Start time: 2315. Session
25 closed: 2342. Would I be wrong in concluding that the
175
1 duration of the dialogue was 27 minutes or can you not tell
2 that from this?
3 MR. GARBUS: I would ask Mr. Shamos.
4 THE COURT: I'm asking the witness, Dr. Shamos.
5 THE WITNESS: Oh, yes, the times in the log have not
6 been altered.
7 THE COURT: That wasn't the question.
8 THE WITNESS: You would be correct in presuming that
9 that was the duration of the chat.
10 THE COURT: O.K. Go ahead.
11 MR. GARBUS: As I recall, this Court has rules about
12 with respect to reading from deposition?
13 THE COURT: Yes.
14 MR. GARBUS: You're not supposed to say, you're just
15 supposed to read the question?
16 THE COURT: Go ahead.
17 BY MR. GARBUS:
18 Q. You just said you were there at the IRC conversation for a
19 while. Page 245: "When did you leave? Were you there for
20 any of the IRC conversations?"
21 THE COURT: Mr. Garbus, for the reporter's sanity,
22 when you do read, read the "Q" and read the "A" so she knows
23 when; you're quoting.
24 Q. Page 245:
25 "Q. When did you leave?"
176
1 Line No. 11, my colleagues --
2 "Q. When did you leave? Were you there for any of
3 the IRC conversations?
4 "A. No."
5 Q. Do you recall giving that answer back on July 16th which I
6 think was yesterday?
7 A. I don't recall giving that answer. I must have misspoke.
8 Q. When? Yesterday or today?
9 A. Yesterday.
10 Q. Now, had you ever been on an IRC chat room before?
11 A. No.
12 Q. So, is it fair to say that without Eric, you wouldn't have
13 known how to get on an IRC chat room?
14 A. Without Eric, I would not have known how to do it without
15 further research.
16 Q. And what kind of research would you undertake to learn?
17 A. I would have gone to a search engine, typed IRC or
18 Internet relay chat, probably within the first page of hits, I
19 would have found a tutorial on how to do it.
20 Q. Now, do you know how Eric found a person to trade with?
21 A. I've asked him how he did it and he's told me, so I
22 believe I know.
23 MR. GARBUS: Judge, what I'm told, and I don't know
24 whether this is so or not, but the exhibit that we have is not
25 the entire log, so that the times that you're referring to in
177
1 the exhibit do not refer to the entire IRC conversation.
2 MR. SIMS: Your Honor?
3 THE COURT: I think the witness has made abundantly
4 clear that there are two logs. That the one that we have here
5 is the entire unaltered log of that part of the conversation
6 that took place privately between eaRoSoL and VaioBoy and that
7 that was preceded by a dialogue that occurred on the chat room
8 that was visible to the public and we do not here have a
9 transcript or log of the public session.
10 That's what I understand to be the fact. Now, do I
11 have it right, Dr. Shamos?
12 THE WITNESS: That's correct.
13 BY MR. GARBUS:
14 Q. And we don't know how much time the public session took,
15 is that right?
16 A. I know how long Eric told me it took.
17 Q. Are there any notes indicating how long Eric told you it
18 took?
19 A. Well, I've thought the log had been provided to you.
20 Q. Now, once you started the trade, how long did that then
21 take?
22 A. The trade took approximately six hours.
23 Q. And are there any records of that?
24 A. It's possible that we might be able to go back to the
25 director on a hard disk and find the date of creation of the
178
1 relevant files.
2 MR. GARBUS: I would like that hard disk, sir.
3 Perhaps you can bring it in tomorrow morning.
4 Q. Now, let me ask you this --
5 THE COURT: Mr. Garbus, that's an application to be
6 made to the Court and to be made later.
7 MR. GARBUS: I apologize. I apologize. I apologize.
8 I'm told by Mr. Hernstadt that --
9 Q. Now, I guess what I have trouble understanding is by the
10 way, how many other cases have you testified in?
11 A. Between five and ten.
12 Q. And these are cases where you've actually got on the stand
13 and testified as a witness?
14 A. I either testified on the stand as a witness or was
15 deposed.
16 Q. And how many other cases were you retained where you did
17 not testify?
18 A. I don't recall, but it's a small number, possibly two.
19 Q. And haven't attorneys, when they have retained you, told
20 you to keep records of what you've done in case you testify in
21 a courtroom?
22 A. It has never happened.
23 Q. No one has ever told you to keep a record of any
24 experiment you've ever done?
25 A. That's right.
179
1 Q. When you do experiments for the university, do you keep
2 records of that?
3 A. That presumes that I do experiments for the university.
4 Q. Do you?
5 A. I don't do what you would refer to as "experiments."
6 Q. Now, sir, what time then does that whole process finish,
7 about 6 in the morning?
8 A. Something like that.
9 Q. And did there come a time, by the way, when you watch the
10 film that you have traded for?
11 A. Yes.
12 Q. And when is that?
13 A. I believe I watched it either soon after its completion,
14 either right that night or after I had gotten some sleep.
15 Q. And you're in your office, I gather, that night from what
16 is it, 11 to 6?
17 A. No, I suspect that I -- as I say, I don't have a specific
18 recollection, but it sounds like the kind of time that I would
19 have left, about 4.
20 Q. About 4?
21 A. Yes.
22 Q. That you would have left about 4?
23 A. Yes.
24 Q. And did you bill Proskauer for your time, those five
25 hours?
180
1 A. Well, I'm sure I billed -- I will be billing Proskauer for
2 more than five hours that day.
3 Q. No, no. The five hours that you were in your office from
4 11 to 5 while Mr. Burn was down -- was trading film?
5 A. If I was working on this case, then I would be billing
6 them for that. If I was working on other material, I wouldn't
7 be billing them for it.
8 Q. Do you have time sheets with you here today?
9 A. No.
10 Q. Did we ask you for time sheets Saturday?
11 A. Yes, I was unable to locate them because they're on a
12 computer that I can't access from here.
13 Q. Did you make an attempt to access that computer?
14 A. Yes.
15 Q. Didn't you tell us that Mr. Burns would bring that
16 computer when he came here Tuesday?
17 A. No, I did not say that.
18 Q. Don't you recall a conversation where we asked you to
19 produce the computer?
20 A. Yes -- it's computer? No. You didn't ask me to produce
21 the computer. The computer is a desk top that's sitting in my
22 office at CMU.
23 I thought at the time that the file in question might
24 have been on my home computer, in which case, I might have a
25 CD-ROM backup of it with me and be able to obtain the file.
181
1 It's unfortunately on my office computer.
2 Q. Now, for these three days, let's say from the time you
3 bought the computer until the time this process ends, how many
4 hours did you bill Proskauer?
5 A. I haven't billed Proskauer for any hours yet. What I do
6 is I write down the number of hours I spend on each day on a
7 particular matter and what I do for that time, I don't write
8 it down by time of day.
9 Q. And where are those records?
10 A. The place I precisely told you just now. They're on a
11 file on the computer in my office at CMU.
12 Q. Now, would that file in any way indicate what you did
13 when?
14 A. No, it would indicate what I did. It wouldn't indicate
15 what I did when and there's not a high degree of specificity
16 to it.
17 THE COURT: Kind of like lawyers' diaries.
18 Q. And how much did you charge, if anything, for the time
19 that of your colleague?
20 A. I'm charging $100 an hour for the time of my colleague.
21 Q. What is he being paid?
22 A. $100 an hour.
23 Q. How much time has he put in?
24 A. I don't know.
25 Q. Now, so you viewed the film on what, day 4?
182
1 A. I don't actually know when we started counting days, but
2 I'm viewing the film on the 28th of July.
3 Q. Of June?
4 A. June, June.
5 Q. And where are you when you're viewing it?
6 A. In Eric's office at CMU looking at the Sony laptop that we
7 viewed today.
8 Q. And when is this?
9 A. I don't recall the time of day. As I say, I presume it
10 was either very late at night or early the very next morning.
11 Q. We are talking about the viewing?
12 A. Yes, the viewing, I wanted to view it as soon as it was
13 produced.
14 Q. And what is your best recollection as to what time you're
15 viewing this film, if you have any?
16 A. I don't have a better recollection than I've given you.
17 Q. Now, you mentioned going off to Hawaii?
18 A. Yes.
19 Q. And is that the time that Eric does the other test?
20 A. I'm not sure what you mean by "the other test."
21 Q. Was there another film that Eric tried to apply DiVX do?
22 A. I believe Eric tried to apply -- tried to DiVX The Fight
23 Club.
24 Q. And when was that?
25 A. I don't know.
183
1 Q. And what happened?
2 A. He was not successful.
3 Q. Did he do that at your direction?
4 A. No.
5 Q. Now, you say he was not successful. Tell me what
6 happened.
7 A. Well, I wasn't -- I wasn't in. I can give you what he's
8 told me that DeCSS doesn't work on The Fight Club.
9 Q. And why doesn't DeCSS work on The Fight Club?
10 A. I don't know.
11 Q. Did you try and make determination as to why it doesn't
12 work?
13 A. No.
14 Q. By the way, do you know that DeCSS doesn't work on any
15 Disney films?
16 A. I don't know that.
17 Q. Have you ever heard of that before?
18 A. I've heard that it doesn't work on The Jungle Book.
19 Q. And do you know why that is?
20 A. No, I have surmised, but I don't know.
21 Q. Now, again let me get it straight. So, we have used the
22 compression techniques, the DiVX, let's say for Sleepless in
23 Seattle. When does Eric next use a compression technique, is
24 that when you're in Hawaii?
25 A. I don't know, because the only things that I've testified
184
1 to are the things in my declaration. Anything he's done=20
2 subsequent to that don't appear in my declaration which was=20
3 submitted prior to my going to Hawaii.
4 Q. But you know he failed let's say on the DiVX'd. Do you
5 know what movie he was trying to compress?
6 A. He was trying to go -- he was trying to deal with The
7 Fight Club. He was unable to do it. I don't know why he did
8 it, other than it sounds like a very intelligent experiment to
9 me.
10 Q. Do you know if he tried to use DeCSS?
11 A. I believe he did.
12 Q. And did you ever ask him -- he was here today. Did you
13 ever ask him why he couldn't use DeCSS to make a copy of The
14 Fight Club?
15 A. I did ask him.
16 Q. And what did he say?
17 A. He said, I don't know.
18 Q. Do you know how long he spent trying to make a copy of The
19 Fight Club?
20 A. No, I don't know.
21 Q. 30 hours? 50 hours?
22 THE COURT: We know what "don't know" means.
23 Next question?
24 Q. Do you know if he made any memos or notes?
25 A. I don't know.
185
1 Q. Did you ever tell anybody at Proskauer that you could not
2 use DeCSS to make a copy of The Fight Club?
3 A. I don't recall. It's logical that I would have, but I
4 don't specifically recall doing that.
5 Q. And do you know as you stand here today any other
6 individuals who have tried to use DeCSS and failed?
7 A. Do I know them personally? I have anecdotal evidence that
8 they exist. I don't know any of them personally.
9 Q. And you say you have anecdotal evidence that other people
10 have tried DeCSS and it does not work, is that right?
11 A. On specific films; yes.
12 Q. Which specific films?
13 A. As I said, The Jungle Book.
14 Q. That's the only one?
15 A. It's the only one I know of.
16 Q. Has anyone ever told you that it works on any particular
17 film other than the ones you tried it on?
18 A. DeCSS specifically?
19 Q. Yes.
20 A. No human being has told me that.
21 Q. Going through Exhibit 116B, which is the list of all of
22 the films that you saw, do you know whether DeCSS can be used
23 for any one of them?
24 A. I think Sleepless in Seattle is on the list, so.
25 Q. Other than that?
186
1 A. No. I know it's alleged to have been used by the people
2 who supposedly did it, but I don't know that it was done that
3 way.
4 Q. Thank you very much.
5 Now, when you say it was alleged to have been used,
6 do you know if the MPA ever tried to contact any of these
7 people who ever said they used DeCSS?
8 MR. SIMS: Your Honor, if we have to go through this
9 stuff -- examination twice, we'll really be here for a long
10 time.
11 THE COURT: And your point is what?
12 MR. SIMS: Asked and answered. He asked that
13 question and it was answered.
14 MR. GARBUS: I don't think I asked that question, not
15 that question.
16 THE COURT: I don't think precisely that way.
17 Overruled.
18 A. No, I don't know.
19 Q. Are you an expert on security systems?
20 A. I wonder if you could make more precise what you mean by
21 "security systems."
22 Q. Security systems for computer technologists, code CSS,
23 water marks?
24 A. I'm an expert to the extent that I follow the field and I
25 give lectures on the topic. I'm not an expert to the extent
187
1 that I do active forefront research in that area.
2 Q. Now, did you at any time ask anybody at Proskauer or the
3 MPA what they did after they first learned that there were
4 cracks in CSS in 1997? I know you learned it later on, but
5 when you learned it, did you ever ask anybody at Proskauer or
6 the MPA: Why didn't you do anything for two years when you
7 knew there were cracks?
8 MR. SIMS: Objection.
9 THE COURT: Sustained.
10 Q. Any conversation like that?
11 MR. SIMS: Objection.
12 THE COURT: Sustained.
13 Q. Would you agree that the DiVX version of the Matrix you
14 saw is darker than the original DVD?
15 A. It didn't seem that way to me.
16 MR. GARBUS: The Court, I'm sure, will see it and
17 form its own conclusion.
18 Q. With respect to computer connections, can we agree that
19 the transfer rate is limited by the slowest part of the entire
20 connection?
21 A. Yes.
22 Q. So, even if you have the fastest Internet available, if
23 your connection to the Internet is slow, the transfer rate is
24 slow, is that correct?
25 A. Yes.
188
1 Q. Do you know anything about the difference in the loads at
2 Carnegie during particular hours?
3 A. I can describe generally the factors that would contribute
4 to there being differences. I don't know numerical statistic
5 on what the loads are.
6 Q. Now, you talked about this 20-minute transfer?
7 A. Yes.
8 Q. Is it fair to say if 10 students were doing it at the same
9 time on the same Internet to the same machine that that
10 transfer would take more than three hours?
11 A. O.K. The transfer that involved 20 minutes did not
12 involve the Internet. That was purely done internally at CMU.
13 Q. And how many people were on that connection at that time?
14 A. I don't know. We were receiving a third of the available
15 bandwidth.
16 Q. Do you know if anybody else was on it?
17 A. I presume that they were or we would have gotten more than
18 of the bandwidth.
19 Q. You've never traded a DiVX'd with anyone ever found
20 through iSONEWS, is that right?
21 A. That's right.
22 MR. GARBUS: I think I may be through. Just a
23 moment, your Honor.
24 (Pause)
25 MR. GARBUS: Just a few questions.
189
1 Q. How much time did it take to install Windows and redo the
2 first steps of the experiment?
3 A. The installation of Windows was relatively rapid. Eric
4 has done that numerous times. The redo of all the initial
5 steps took about half the time the second time as it did the
6 first time.
7 Q. Did you use CMU's Windows, is that right?
8 A. Yes.
9 Q. And wasn't that in violation of CMU's regulations by which
10 you're not allowed to do that for your own private use?
11 A. I don't know. I don't necessarily regard this as my own
12 private use.
13 Q. Isn't it a violation of Carnegie-Mellon's rules for you to
14 do this for Proskauer's use?
15 A. I don't believe so. Faculty frequently consult are
16 encouraged and some departments required to consult. They are
17 able to use the facilities provided for them by CMU seemingly
18 without any violation of university policy.
19 Q. Have you ever seen the site license of Carnegie-Mellon?
20 A. I have seen site licenses at vary times in my career at
21 Carnegie-Mellon. I haven't seen it for Windows.
22 MR. GARBUS: We'll have Mr. Teretsky from
23 Carnegie-Mellon in a few days.
24 That's all for now.
25 THE COURT: Thank you. Any redirect?
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1 MR. SIMS: Yes, your Honor.
2 REDIRECT EXAMINATION
3 BY MR. SIMS:
4 Q. Dr. Shamos, just so we are clear, the session of your
5 experiment that dealt with DeCSS'ing Sleepless in Seattle, did
6 that require -- did that depend on the amount of traffic going
7 on in the land at CMU at that time?
8 A. No, the DeCSS'ing process is done completely locally on
9 the client machine, in this case the Sony laptop. In fact, my
10 recollection is that the connection to the land was even
11 disconnected during the time after we had obtained the
12 necessary software, but it didn't use any land connection.
13 Q. And would traffic on the land affect in any way the DiVX
14 processing time that you recorded on?
15 A. No, once all the tools obtained to do it, that is again a
16 legal process on the client.
17 Q. Now, once a DeCSS'd DiVX'd copy of a motion picture had
18 been created, is it available for transfer for the next 20
19 years regardless of whether it was made at night or during the
20 day?
21 A. Presumably there isn't some technological revolution of
22 that would obsolete the format on which it started. Yes, it
23 is available until such revolution.
24 Q. Do you know whether the traffic on the land of CMU is
25 greater or lesser from 6 to midnight than it is during the
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1 day?
2 A. I don't. The population of users who use it and what they
3 do with it changes at the various times during the day.
4 Students are in class during the day, but they're in their
5 dorm rooms at night. That's when they use it.
6 Faculty is in their offices during the day and often
7 at home at night, and so the office use is lower at night.
8 MR. SIMS: Nothing else, your Honor.
9 THE COURT: All right.
10 Thank you. Anything further for this witness, Mr.
11 Garbus?
12 MR. GARBUS: Your Honor, we had made a motion to
13 exclude him as an expert. Given the fact that this is a
14 non-jury trial, I suppose we can wait for another time to
15 discuss that.
16 THE COURT: Yes, I think so.
17 All right, anything further?
18 MR. SIMS: Nothing further.
19 MR. GARBUS: Nothing -- the only thing is we worked
20 out a practice I think last week, your Honor, that in order to
21 avoid unnecessary cross-examination, we could just put in
22 deposition testimony and appropriately designated and they
23 could object and we could object and you can -- so, we will
24 then put in -- we've just -- we haven't yet gotten it all. We
25 will designate --
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1 THE COURT: That's fine.
2 The witness is excused.
3 MR. SIMS: Your Honor, just so we are clear, that was
4 not an arrangement we made.
5 THE COURT: No. That's what Mr. Garbus asked for
6 that and I said it was fine. There was really no sense with
7 100 people sitting in the courtroom listening to somebody read
8 what I can sit down and read. We could have gotten the phone
9 book, too.
10 MR. GARBUS: I think there are two open issues unless
11 I can raise them.
12 THE COURT: The two I have on my list is Mr.
13 Stevenson and Mr. Garbus. Let's take up Mr. Stevenson first.
14 MR. GARBUS: We have him here. He had been involved
15 in this early on. They have reports of his. He has submitted
16 an affidavit. We had put him on the witness list. We are
17 prepared to give him, as they requested, an hour's deposition
18 and have him testify out of turn tomorrow.
19 MR. SIMS: Your Honor, as you may recall --
20 THE COURT: Before you go, Mr. Sims, give me a short
21 offer of proof, I mean short, from Mr. Stevenson just so I
22 know what we are talking about.
23 MR. HERNSTADT: Mr. Stevenson is a computer
24 program -- he's an expert in source code and object code.
25 He's an enthusiast who was the first person who wrote the
193
1 crypt analysis. I would call him an expert in photography as
2 well, he did the crypt analysis.
3 THE COURT: And in substance, what is he going to
4 tell me?
5 MR. HERNSTADT: He's going to tell you how difficult
6 it is to break the CSS code. He's going to talk about the
7 connection between the CSS and Linux. He's going to talk
8 about the assets and open source of the DVD player. He's
9 going to talk about --
10 (Continued on next page)
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1 THE COURT: There is no disagreement that there is no
2 open source DVD player. Is there a disagreement about that?
3 MR. SIMS: There are in fact licenses which have been
4 granted, and people are undertaking to create them. They have
5 licenses, but there is no dispute that there is not one
6 available for purchase at any store in Manhattan.
7 MR. HERNSTADT: In fact that's incorrect. There are
8 closed source licenses that have been granted to a couple of
9 people who are attempting to develop a Linux DVD player, but
10 it's my understanding that under no circumstances will persons
11 developing a closed source DVD player be permitted to release
12 the source, so other people can take that DVD player as it's
13 normally done in the community.
14 THE COURT: That piece of it is an object of
15 controversy. Mr. Sims like most good lawyers has a lot of
16 trouble just saying yes to something the other side proposes.
17 MR. GARBUS: May I interfere?
18 THE COURT: Yes.
19 MR. GARBUS: One of the issues in the case, and your
20 Honor has mentioned this, is why was DeCCS created, was it
21 created as a tool for pirates or was it created for the Linux
22 system. And I think that your Honor will make his own
23 determination clearly about whether or not that's relevant to
24 the circumvention under 1201, but what Mr. Stevenson can
25 testify to, since he was involved in the work in creating the
195
1 DeCSS so that the Linux people could have an open source
2 system, he could also testify about the other kinds of rippers
3 and the efficacy of DeCSS, but I think it's most clinical, and
4 your Honor hasn't seen that yet, and it was not given to you
5 at the preliminary injunction hearing, there is a pack of
6 papers about six pages high -- about six inches high, maybe a
7 foot high --
8 THE COURT: You got my hopes up for a minute.
9 MR. GARBUS: -- where there is a discussion about the
10 Linux group and the attempt of the Linux group to create the
11 Linux machine. And the extent to which Frank Stevenson can
12 give you information about that, that I think becomes
13 relevant. Again, the details of his testimony are better
14 known to Mr. Hernstadt than I, but I find that relevant.
15 THE COURT: How long do you expect to have him on
16 direct?
17 MR. HERNSTADT: I think we can finish his direct in
18 an hour and a half, probably an hour.
19 THE COURT: Mr. Sims?
20 MR. SIMS: In the first place, I believe it is
21 undisputed that Mr. Stevenson did not create DeCSS, and we
22 don't believe that it's an issue in the case in any event.
23 Second of all, if your Honor will recall we had
24 repeatedly said we were prepared to depose everyone who might
25 be coming to trial and ask for dates.
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1 THE COURT: I remember that.
2 MR. SIMS: And there was a discovery deadline first
3 of June 5 and then June 11.
4 THE COURT: July 5.
5 MR. SIMS: Absolutely, July 5 and 11. We have
6 repeatedly asked for dates and were provided no date for
7 Mr. Stevenson prior to those times, and we therefore sent your
8 Honor last week a letter asking for Mr. Stevenson to be
9 excluded on the grounds of the failure to comply with
10 discovery deadlines set by the Court.
11 THE COURT: All right.
12 MR. SIMS: In addition, there is a pending motion in
13 limine that would exclude him.
14 THE COURT: I understand that. You have all kept me
15 busy with other matters for the last couple of days.
16 MR. SIMS: If I might, I'm also advised this
17 testimony is cumulative of the deposition testimony of two
18 other people who are being brought to trial: Mr. Snyder and
19 Mr. Appel.
20 MR. HERNSTADT: Mr. Stevenson did the crypt analysis.
21 He is the man on the scene. He can talk about things from
22 experience, from personally having done it as opposed to
23 assessing it.
24 Additionally he is a participant in a lot of the
25 Linux lists, so he can talk about the connection between CSS
197
1 and DeCSS and Linux, which Mr. Snyder cannot.
2 THE COURT: All right. Here is what we are going to
3 do. It is clear that the defendants did not comply with the
4 orders relating to this aspect of discovery, and there is a
5 nontrivial argument made by the plaintiffs that I should rule
6 them out.
7 Nonetheless, contrary to some things that have been
8 said, I'm very mindful of the expedited schedule in this case
9 which serves a lot of interests, even for parties who don't
10 always recognize them, and I think in all the circumstances
11 some balance ought to be made to permit this man to testify,
12 and I think that's doubly appropriate since he is I'm informed
13 the President of Norway and it's not clear that it was within
14 the power of the defendant simply to order him to show up in
15 New York for a deposition. So, I will hear his testimony, and
16 I am also going to give them the opportunity to depose him
17 tonight, as has been suggested. What we will do, because
18 obviously everybody has a lot of demands on their time right
19 now, is this: The direct tomorrow is not to exceed an hour
20 and a half. The deposition is not to exceed an hour and a
21 half. If you people work out a different arrangement for a
22 longer deposition, I will work out a different arrangement on
23 the length of the direct. It just seems to me that that's a
24 fair balance. And anything pretty much that you can agree to
25 between yourselves, even if it is at some variance with that,
198
1 probably will be acceptable.
2 I do once again urge that to the extent this man is
3 coming here to tell me things that are not genuinely disputed,
4 that you simply stipulate to it.
5 Now, I do appreciate that there is probably some
6 element of perhaps the man wants to testify in this case. I
7 don't know that to be true, but it might be. I understand
8 that too, but let's just try to do this as efficiently as
9 possible.
10 That takes care of Mr. Stevenson.
11 What about Mr. Burns?
12 MR. HERNSTADT: I think it has become clear that Mr.
13 Burns did most of the experiment. I think the reason that it
14 is important to talk to Mr. Burns is that I think it has also
15 become clear that that experiment was directed entirely by
16 Proskauer, that Dr. Shamos was given direct instructions to
17 purchase a computer, to do this, to do this, to go to 2600 and
18 through 2600 get the DeCSS and he carried out those
19 instructions. There is no expertise required for that. I
20 would say that a 13 year old can do it, but that goes without
21 saying. I think even a person who is computer illiterate
22 could follow those directions given enough time. No expertise
23 at all was required.
24 So, it's a question of fact, what happened. And
25 there are definitely disparities in terms of the burn date on
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1 the movies, what happened on the IRC channel, what other
2 things went on during the DiVXing process. I think we are
3 entitled to know the basis for the opinions that were stated
4 by Dr. Shamos, and to the extent they were provided by work
5 done solely by Mr. Burns, and a significant part of it was
6 done by Mr. Burns, we are entitled to see what Mr. Burns did.
7 THE COURT: Mr. Sims?
8 MR. SIMS: I think if Congress had enacted or the
9 Judicial Conference had enacted a different version of Rule
10 703, that would be a perfectly good argument, but under 703 I
11 think an expert is entitled to rely on the kinds of materials
12 relied on by persons in that field. And I believe that
13 persons in that field are allowed to and they customarily do,
14 the testimony is that they do rely on those kinds of
15 assistance for this kind of work. Therefore, I think under
16 Rule 703 --
17 THE COURT: That gets Dr. Shamos's opinion in, but it
18 doesn't necessarily go beyond it. If we were trying a plain
19 old ordinary medical malpractice case and the alleged
20 malpractice was some kind of misdiagnosis by the hospital, and
21 the attending physician came in and testified that he received
22 a report from the pathology lab that said something was not
23 cancerous and it turned out to be cancerous, it may have been
24 perfectly reasonable for the attending to have relied on a
25 report from the pathology lab, and there may well have been
200
1 malpractice anyway if the pathologist failed to perform the
2 review of the tissue appropriately. So, you haven't really
3 touched their point yet, Mr. Sims.
4 MR. SIMS: Well, I thought that I had, your Honor.
5 The experiment was conducted, directed by Dr. Shamos, and he
6 was in and out of the room, and he checked on the result and
7 he checked on the things that were done, and I believe that
8 that's the way experts customarily testify.
9 THE COURT: Look, you have offered me CD-ROMs that
10 Mr. Burns burned on the basis of the DiVX versions that
11 allegedly were made, using DeCSS on files swapped over the
12 Internet, and you have invited me to draw conclusions about
13 the quality of the resultant product. Now, it seems to me in
14 those circumstances they are entitled to go into the question
15 of what is on those CD-ROMs and how it got there, because it
16 goes to the issue of whether the product that you have offered
17 me is or isn't persuasive evidence.
18 MR. SIMS: Then we will make Mr. Burns available.
19 THE COURT: I thought that was the right answer.
20 Okay.
21 Now the one other thing I want to remind you before
22 we break for the day is that you must provide the court
23 reporters with that glossary I mentioned before we start
24 tomorrow.
25 What time are we starting now? 9 o'clock, folks.
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1 MR. HERNSTADT: May.
2 MR. GARBUS: May we keep our documents here?
3 THE COURT: You certainly may. The courtroom is
4 going to be locked. There is a lot of sensitive material in
5 the courtroom, and we give no representations or warrantees
6 about how effective our security is, but we will endeavor to
7 lock the courtroom and keep people out and keep everything
8 secure.
9 MR. GARBUS: May I ask one further question? When
10 cross-examining, in direct examination, using confidential
11 documents and referring to confidential documents or
12 privileged documents, I presume the practice would be if there
13 is any question about it to let the Court see it before the
14 examination on that document.
15 THE COURT: Yes, I think that absolutely has to be
16 the case. There is no question about that.
17 MR. SIMS: It would be helpful, your Honor, if we
18 could have first thing in the morning or after the lunch break
19 from our adversaries a list of what is going to come up so we
20 can review it.
21 THE COURT: To whatever extent you people can work
22 that out, please work it out. If it comes up in the course of
23 the day we will deal with it. And I really would urge both
24 sides to manage the examinations in a way -- and I would be
25 surprised if it couldn't be done -- that would enable me to
202
1 avoid closing the courtroom at any point in this trial. I
2 don't want to do that. Okay. Thank you.
3 MR. SIMS: Thank you, your Honor.
4 (Trial adjourned to July 18, 2000 at 9:00 a.m.)
5
6
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8
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12
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14
15
16
17
18
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21
22
23
24
25
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1 INDEX OF EXAMINATION
2 Witness D X RD RX
3 MICHAEL I. SHAMOS.........16 120 190
4 PLAINTIFF EXHIBITS
5 Exhibit No. Received
6 112, 113, 114A through 114E, and 2 ...........65
7 115A and 115B ...............................113
8 DEFENDANT EXHIBITS
9 Exhibit No. Received
10 105 through 110 ..............................40
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25