612
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 20, 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 SCOTT P. COOPER
18 FRANKFURT, GARBUS, KLEIN & SELZ
Attorneys for Defendants
19 BY: MARTIN GARBUS
ERNEST HERNSTADT
20 DAVID ATLAS
21
22
23
24
25
613
1 (In open court)
2 MR. GARBUS: May we approach the bench?
3 THE COURT: Yes, you and Mr. Gold may approach the
4 bench.
5 (At the sidebar)
6 MR. GARBUS: I got the Court's opinion yesterday when
7 I got back to my office, and we will try and deal with it in
8 some way. I do want to point out that as I read the
9 transcript, I was asked to stop going into an area that I
10 thought was relevant to the lawsuit because the Court felt
11 that I was getting into a recusal issue. The Court then asked
12 the question that was specifically related to the recusal
13 issue. I think it's very difficult to try a case while this
14 is going on.
15 THE COURT: I hear what you said, and what you've
16 said is, regrettably, absolutely false. And the transcript so
17 reflects.
18 MR. GARBUS: Secondly --
19 THE COURT: I did not stop you from going into
20 anything. I raised a concern about whether you were doing it
21 for a different purpose. I said that. You then said you
22 weren't and therefore you would leave the subject. I said,
23 look, if you want to press it, it raises another issue and I
24 will deal with it. You then elected to stop.
25 MR. GARBUS: Thank you. With respect to the issue of
614
1 the press, the Court has already indicated in its previous
2 decisions some concern. I had 12 calls from the press
3 yesterday. I spoke to nobody. I do not fault Mr. Gold at
4 all. I do understand, and I could be totally wrong, and I am
5 not making criticism of any kind, that members of the
6 Proskauer firm have spoken to the press. If I'm wrong, then
7 I'm wrong.
8 MR. GOLD: I didn't hear what you said.
9 MR. GARBUS: That members of the Proskauer firm have
10 been speaking to the press, and I find nothing wrong with it,
11 I'm not even asking about it.
12 Are you saying --
13 THE COURT: Stop it, Mr. Gold.
14 MR. GARBUS: All I'm saying is if there is to be a
15 bar, or if there is to be any significance given to any
16 discussion by any member of the defense team or the
17 defendants -- I have also seen Mr. Valenti's statements and
18 statements by the MPAA -- then if the Court wishes to impose a
19 press bar on everybody, I will not object to it.
20 THE COURT: Are you asking for it?
21 MR. GARBUS: Absolutely not. But I don't want to be
22 the only one feeling the pressure of that restriction.
23 THE COURT: Mr. Garbus, any pressure you are feeling
24 in this regard is internally generated.
25 MR. GARBUS: Thank you.
615
1 THE COURT: I have imposed no bar, no one has asked
2 me to impose a bar, and so that the record is abundantly
3 clear, yesterday when you made a statement to the effect that
4 you had not been making certain sorts of out of court
5 statements or would not, or something to that effect, there
6 was comment on the fact that you were speaking only for
7 yourself.
8 MR. GARBUS: Absolutely.
9 THE COURT: And you made clear that you were speaking
10 only for yourself.
11 MR. GARBUS: Absolutely.
12 THE COURT: And you know we are not, all of us,
13 totally in a vacuum. It is perfectly obvious that others at
14 your table, or at least one other that I can identify, is
15 speaking to the press with immense regularity.
16 MR. GARBUS: Do you care to mention the extent to
17 which the other side is speaking to the press through press
18 releases and distributing information as well?
19 THE COURT: I have absolutely no idea. I suppose you
20 are both talking to the press a lot.
21 MR. GARBUS: I am not.
22 THE COURT: Those are generic you's. Both sides are
23 obviously talking to the press.
24 (In open court)
25 Do you have a witness, Mr. Gold?
616
1 MR. GOLD: Yes, we do, your Honor.
2 MR. HERNSTADT: I think we have agreed to do Mr.
3 Johansen first.
4 THE COURT: We will take Mr. Johansen out of order.
5 MR. HERNSTADT: Thank you very much, your Honor.
6 The defendants call Jon Johansen.
7 JON JOHANSEN,
8 called as a witness by the Defendants,
9 having been duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MR. HERNSTADT:
12 Q. Good morning, Mr. Johansen.
13 A. Good morning.
14 Q. Where do you live?
15 A. I live in Larvik, Norway.
16 Q. How old are you, sir?
17 A. I will be 17 in November.
18 Q. What is your educational background?
19 A. High school.
20 Q. Do you work now?
21 A. Yes, I do.
22 Q. Where do you work?
23 A. I work for WAP Factory in Oslo.
24 Q. What do you do for them?
25 A. I work in interactive TV.
617
1 Q. What does WAP Factory do?
2 A. We work with WAP, the Wireless Application Protocol, and
3 interactive TV.
4 Q. Does it produce programs?
5 A. We -- yes, but not for the general public.
6 Q. Thank you. What program languages do you use?
7 A. I use C, C++, Assembler and JAVA.
8 Q. And what operating systems do you use?
9 A. I use GNU/Linux, FreeBSD and Windows NT.
10 Q. How many computers do you have at home?
11 A. I have three computers.
12 Q. And what are the operating systems on those computers?
13 A. One has GNU/Linux, one has FreeBSD and one has GNU/Linux
14 and Windows NT.
15 Q. What do you use those machines for?
16 A. The Linux only machine is used as a router, which I use to
17 connect to the Internet, and the FreeBSD machine is used as a
18 file print server and the new Linux and Windows NT machine is
19 my desktop machine.
20 Q. How long have you used Linux programs?
21 A. I used Linux for about three years.
22 Q. What is your primary operating system that you use?
23 A. That would be Linux.
24 Q. When did you first -- do you know what a DVD is?
25 A. Yes, I do.
618
1 Q. When did you first see a DVD?
2 A. I first saw a DVD in 1997.
3 Q. Okay. As of October 1999 did you own any DVDs?
4 A. Yes, I did.
5 Q. How many?
6 A. About 15.
7 Q. How many do you have today?
8 A. Today I have about 40 DVDs.
9 Q. Okay. Did you buy them?
10 A. Yes, I did.
11 Q. How much does a DVD cost in Norway?
12 A. Region 2 DVDs for the European market are about 20 to $30,
13 but they lack -- they usually lack all the extra features that
14 are on the region 1 U.S. DVDs, so I buy imported U.S. DVDs,
15 which are about 40 to $50.
16 Q. Can you play an imported U.S. DVD in Norway?
17 MR. SIMS: Object to this whole line as irrelevant,
18 your Honor.
19 THE COURT: Sustained. No, I'm not sure. Overruled.
20 I will let it go a while.
21 MR. HERNSTADT: Thank you, your Honor.
22 A. Can you please repeat?
23 (Record read)
24 A. When a DVD comes from the factory it will only play the
25 European region, which is 2, but almost all DVD players in
619
1 Norway are modified to play DVDs from the whole world.
2 Q. Who modifies the DVD players?
3 A. The stores usually have a person who they send the DVD
4 players to to have them modified before they sell them.
5 Q. Do you have DVD a player in your home?
6 A. Yes, I do.
7 Q. How many?
8 A. I have a set up DVD player for my TV and I have a DVD
9 player on my computer.
10 Q. On which computer do you have the DVD player?
11 A. That would be Linux.
12 Q. Do you know a program called DeCSS?
13 A. Yes, I do.
14 Q. What is it?
15 A. It is a program which decrypts DVD movies and stores them
16 on your hard drive.
17 Q. Does DeCSS do anything else?
18 A. No, it does not.
19 Q. Who wrote DeCSS?
20 A. I and two other people wrote DeCSS.
21 Q. How did this come about?
22 A. In September, October, 1999 I met a person on the Internet
23 and he was also a Linux user. We decided to investigate and
24 find out how we could make a DVD player for Linux.
25 Q. Why did you want to do that?
620
1 A. Well, at the time I had a dedicated Windows machine, which
2 I used only for DVD playback, and if I could get a Linux
3 player I wouldn't have to have a machine just for DVDs.
4 Q. Okay. So what did you do?
5 A. Well --
6 MR. SIMS: Your Honor, object on relevance to this
7 whole line.
8 THE COURT: Tell me why.
9 MR. SIMS: Excuse me?
10 THE COURT: Tell me why.
11 MR. SIMS: Because the issue in the case has nothing
12 to do with why this person created an executable for DeCSS.
13 It has to do with what its function is and what Mr. Corley has
14 done.
15 THE COURT: I am going to hear the evidence, within
16 reasonable time limits, for what it's worth. Go ahead. I
17 mean the man is here from Norway, I might as well hear him.
18 MR. HERNSTADT: Do you want to hear the purpose of
19 the evidence or would you rather hear the evidence?
20 THE COURT: You are going to get the evidence in and
21 I will hear the argument later, unless we come to a point
22 where I think you have taken too much time and then you can
23 try to explain to me why we should take more.
24 Q. Mr. Johansen, what did you do next towards making DeCSS?
25 A. We agreed that the person who I met would reverse engineer
621
1 a DVD player in order to obtain the CSS algorithm and keys.
2 Q. Who was this person that you met on the Internet?
3 A. A person from Germany. I don't know his identity.
4 Q. Okay. What happened next?
5 A. About three days later when I was on line again, he
6 messaged me and told me that he had found the CSS algorithm.
7 He also sent the algorithm to me with the CSS authentication
8 source which are written by Eric Fawcus earlier. He also sent
9 me information on where inside the player he had found the
10 algorithm, and he also sent me a single player key.
11 Q. Why did he send you the information on how he found the
12 algorithm?
13 MR. SIMS: Objection.
14 THE COURT: Sustained.
15 Q. What did you do next?
16 A. Well, he had told me where inside the player he had found
17 the algorithm, so I disassembled the DVD player myself to see
18 where he had found it.
19 Q. Was this a software DVD player?
20 A. Yes, this was a software DVD player, the Xing DVD player.
21 Q. What did you do next?
22 A. Well, at the time -- the UDF is a file system which is
23 used on DVDs, and at the time Linux did not have the proper
24 support. It was currently in development. It was being developed
25 so I could not get it to work, so in order to test the
622
1 decryption, if the decryption algorithm found worked, I
2 created a Window executable which would use the CSS algorithm
3 to decrypt the CSS content.
4 Q. You said you got the CSS authentication program from Derek
5 Fawcus?
6 A. Yes, I believe the CSS authentication had been posted
7 anonymously in Assembler language on the Internet, and Derek
8 Fawcus had picked that up and rewritten it in C language and
9 posted it on his website.
10 Q. How do you know that it was Derek Fawcus?
11 A. He told me.
12 MR. SIMS: Judge, move to strike. Hearsay.
13 THE COURT: Strike what Mr. Fawcus told him.
14 Q. Were there any other indications that Mr. Fawcus might
15 have been connected to the program?
16 A. The CSS-authentication?
17 Q. Yes.
18 A. Well, it was posted on his website so I presume he put it
19 there.
20 Q. All right. Tell us what happened next.
21 A. Well, after I had created the DeCSS executable, I posted
22 it on my website, I made an announcement on the LiViD mailing
23 list. I posted a link to my website.
24 Q. Why did you make an announcement on the LiViD mailing
25 list?
623
1 A. Well, I wanted them to know that we had successfully
2 reverse-engineered a DVD player and obtained the algorithm we
3 needed to make a DVD player.
4 Q. Why did you want the LiViD mailing list to know that?
5 A. That's what LiViD is about, it's about making a DVD player
6 for Linux.
7 Q. Were you able to play DVDs on a Linux machine using DeCSS?
8 A. Well, yes. After I had decrypted a movie, I used the NIST
9 MP-2 player to successfully play a DVD. I wouldn't have
10 access to the DVD features but I could play the actual movie.
11 Q. Have you looked at any other programs that do
12 substantially the same thing as DeCSS?
13 A. Yes, I have. Before I created DeCSS, I had analyzed a
14 program called DVD Rip, which I had found on the Internet.
15 Q. Why did you need to make DeCSS if you had found a program
16 that did essentially the same thing?
17 A. Well, DVD Rip, it takes a decrypted DVD movie from memory
18 and stores it on your hard drive. It did not come in source,
19 and in order to make a DVD player we would need to have
20 source, and the DVD republication didn't contain the CSS
21 algorithm and it was dependent on a DVD player for Windows.
22 Q. Did the DVD Ripped program decrypt DVDs?
23 A. No, it actually stole, if you would like to use that term,
24 the DVD movie from memory after it had been decrypted by the
25 Xing DVD player and then you save that stream on your hard
624
1 drive.
2 Q. Were the files created by DVD Rip and DeCSS the same?
3 A. Not exactly, but the files created could easily be
4 compressed using another compressed algorithm.
5 Q. And did DVD Rip, the file created by DVD Rip, was the
6 audio and video together or separate?
7 A. They were together.
8 Q. And how about with DeCSS?
9 A. Well, they are still together with DeCSS as well.
10 Q. Okay. Is there anything -- I'll move on. What happened
11 to you after --
12 THE COURT: Let me get clarification of that. With
13 DeCSS was there any need, is there any need to synchronize the
14 audio files with the video files in order to see the movie in
15 the form you would normally see a movie?
16 THE WITNESS: Well, if you make a DivX, is that what
17 you mean? Or if you want to play the DVD movie after it has
18 been decrypted?
19 THE COURT: Either way.
20 THE WITNESS: After we decrypt a movie with DeCSS,
21 you can simply play it in your DVD player. You don't need to
22 do anything.
23 THE COURT: What if you then want to compress it and
24 transfer the compressed file to someone?
25 THE WITNESS: Well, that you would need -- I haven't
625
1 actually performed that procedure, but I believe there are
2 steps needed to resynchronize the video and audio.
3 THE COURT: What is the basis for your belief in that
4 regard?
5 THE WITNESS: I have read several articles on the
6 Internet that describe those procedures.
7 THE COURT: All right. Go ahead.
8 Q. If you use DVD Rip to decrypt or to get a decrypted DVD
9 file, is there a need to synchronize the audio and visual if
10 you are going to compress it thereafter?
11 A. Well, I haven't performed that procedure myself, but I
12 believe there would be.
13 THE COURT: Mr. Johansen, if you would sit back about
14 another six inches, the audio will be a lot clearer.
15 MR. SIMS: Move to strike. No foundation to the last
16 part of that.
17 THE COURT: I will take it for what it's worth. If
18 he hasn't done it, he hasn't done it.
19 Q. After you posted the link to the DeCSS program on the
20 LiViD site, what happened then?
21 A. Well, I had some small increase in visitors, not much.
22 After the press started releasing articles and linked it to my
23 site, I received a substantial increase in visitors.
24 Q. Was anyone on the LiViD site critical of you posting a
25 link to CSS?
626
1 A. Yes, there was at least one person who felt that we should
2 have released the source with the Xing key at the same time we
3 released the executable.
4 Q. Did you release the source at the same time?
5 A. No, we did not.
6 Q. Why didn't you?
7 A. Because the source we had contained the Xing player key.
8 If we were to release that source, the Xing would be harmed,
9 the player key would be revoked and no new DVD movies would
10 work with the Xing DVD player or the player we would have
11 created.
12 Q. Did you intend never to release the source?
13 A. Before we created DeCSS we sent the source to Derek
14 Fawcus. He was supposed to rewrite the source without the
15 need for the Xing player key and then release that onto the
16 Internet.
17 Q. Did any event occur to you personally as a result of your
18 writing DeCSS?
19 MR. SIMS: Objection. Irrelevant.
20 THE COURT: Sustained.
21 Q. What happened next?
22 MR. SIMS: Objection. Irrelevant.
23 THE COURT: Well, look, we all know the story, don't
24 we? What's the harm? Go ahead.
25 A. Well, in January, on January 25, I had to go to the local
627
1 prosecutor's office because of charges filed by the MPAA in
2 Norway, and in February I received an award, a national
3 student award which is awarded to students who are in high
4 school and have achieved excellent grades and also achieved
5 something outside of school in culture, sports, art.
6 Q. Why did you receive that award?
7 A. I believe I received the prize because of my part in the
8 writing DeCSS.
9 Q. Did you get a prize?
10 A. Yes, I did.
11 Q. Did you get any money?
12 A. I received about $2,000.
13 Q. What did you do with the money?
14 A. I used $1200 and bought a high-end Sony DVD player for my
15 TV.
16 MR. HERNSTADT: Thank you very much, Mr. Johansen.
17 THE COURT: Mr. Sims. Thank you, Mr. Hernstadt.
18 CROSS-EXAMINATION
19 BY MR. SIMS:
20 Q. Good morning, Mr. Johansen.
21 A. Good morning.
22 Q. Now, you understood when you created DeCSS executable that
23 DVD movies were encrypted using the CSS encryption algorithm,
24 correct?
25 A. Yes, I did.
628
1 Q. And you first learned of CSS in about June or July of
2 1999?
3 A. Yes, I did.
4 Q. You understood that CSS required three sets of keys to
5 play back a DVD?
6 A. Yes.
7 Q. And you understood that certain of those keys were
8 themselves encrypted?
9 A. Well, I believe I understood that the CSS license requires
10 anyone who makes a DVD player to encrypt their algorithm and
11 key inside the DVD player.
12 Q. The program you created, DeCSS, that you posted, is a
13 Windows program, correct?
14 A. Yes, that's correct.
15 Q. And you came up with the name DeCSS?
16 A. Yes, I did.
17 Q. What does the De in DeCSS stand for?
18 A. It stands for decrypt.
19 Q. DeCSS has no playback functionality, is that correct?
20 A. Yes, that's correct.
21 Q. Once a decrypttive VOB file is copied to the user's hard
22 drive, he can do anything with that file that he can do with
23 any other computer file?
24 A. Yes, that's correct.
25 Q. He can copy it again?
629
1 A. Yes, that's correct.
2 Q. Compress it?
3 A. Yes.
4 Q. He can copy it to a VCD? I'm sorry. He can copy it to a
5 video compact disk?
6 A. Well, not in its original decrypted form. The size is too
7 high.
8 Q. But if he compresses it, it can be copied to a video
9 compact disk?
10 A. Yes, if he uses sufficient compression.
11 Q. And to a CD-ROM?
12 A. Yes.
13 Q. And it can be uploaded on to the Internet -- it could be
14 uploaded to the Internet, correct?
15 A. Yes, just as any other file.
16 Q. Now, am I correct that someone in a chat room advised you
17 two months ago that he or she had downloaded a decrypted
18 DivX'd DVD movie from the Internet?
19 A. No, I believe someone told me that they had downloaded a
20 movie. They didn't tell me what form it was or which movie it
21 was.
22 Q. They didn't tell you that it was DivX'd?
23 A. No, they did not.
24 Q. What was the chat room, by the way, where you had that
25 communication?
630
1 A. That would be #PC DVD.
2 MR. HERNSTADT: I object and move to strike the last
3 several questions and answer on the grounds of hearsay.
4 THE COURT: I'm not going to take it for the truth.
5 Q. Now, Mr. Johansen, did you testify last night that you
6 were told by this person that he had downloaded a DivX'd
7 movie?
8 A. No, I believe I told last night that he had told me that
9 he had downloaded a movie. He didn't say which kind of movie
10 it was.
11 MR. SIMS: I don't quite remember the approach you
12 want, but that testimony appears on page 10 of the --
13 THE COURT: I don't have it. Just read it. Give the
14 page and line number and just read it. If there is a dispute
15 over the accuracy of the reading or of the transcript, we'll
16 deal with it.
17 MR. SIMS: Page ten, line 3.
18 "Q. Okay. What has that person told you?"
19 A. I believe he told me he had downloaded a movie from the
20 Internet.
21 THE COURT: I'm sorry. There is no reason you would
22 be any more familiar with U.S. courtroom procedure than I
23 might be with Norwegian. At this moment counsel is going to
24 read from the transcript of what you said last night. When he
25 says "question," what that indicates is that he is about to
631
1 read what you said last night and we will let you know when
2 you are to answer again.
3 THE WITNESS: Okay.
4 MR. HERNSTADT: I can see that it's hearsay.
5 THE COURT: Well, now it goes to credibility. Go
6 ahead.
7 BY MR. SIMS:
8 Q. The transcript says:
9 "Q. Okay. And what has that person told you?" And the
10 reporter wrote down the following answer:
11 "A. He told me that he had downloaded a DivX movie."
12 Is that correct?
13 THE COURT: Mr. Sims, your question is unclear. If
14 you are asking him if it's correct that that's what the
15 transcript says, we don't need that testimony. If you are
16 asking him whether what he said last night is true, that's an
17 appropriate question.
18 MR. SIMS: That's an appropriate question?
19 THE COURT: Yes. Mr. Hernstadt?
20 MR. HERNSTADT: Your Honor, actually the first
21 question is not entirely inappropriate. This is not a final
22 transcript.
23 THE COURT: Are you disputing its accuracy in this
24 regard? Do we have to bring the court reporter in to testify
25 as to the accuracy of the transcript?
632
1 MR. HERNSTADT: No, sir.
2 THE COURT: Go ahead, Mr. Sims.
3 Q. Is it true that you were told by this person that he had
4 downloaded a DivX'd movie?
5 A. No, it is not.
6 Q. And did you testify last night that he did tell you that?
7 A. No, I believe I testified that he had said he had
8 downloaded a movie, not which kind.
9 Q. Now, this conversation you had, what was the name of the
10 chat room again?
11 A. Pound PC DVD.
12 Q. Is that the precise chat room where you had announced your
13 creation of the Windows DeCSS utility?
14 A. Yes, that is correct.
15 Q. And how many months after you made that announcement in
16 that chat room did you have this conversation with this
17 person?
18 A. Excuse me? Could you please repeat?
19 Q. Yes. How long was it after you had made the announcement
20 about the Windows DeCSS utility did you have this conversation
21 with this person in which the person told you that they had
22 downloaded a movie from the Internet?
23 MR. HERNSTADT: Object to the form.
24 THE COURT: Overruled.
25 A. I don't recall, but I believe it was about a month.
633
1 Q. And am I correct that the Pound PC DVD chat room is not
2 limited to Linux users?
3 A. The Pound PC DVD channel is open for all users of PCs and
4 DVDs.
5 Q. Thank you very much. Now, you testified on direct that a
6 German person, I think, had reverse-engineered the Xing DVD
7 player, is that correct?
8 A. Yes, that is correct.
9 Q. And that person goes by the nick Ham?
10 A. Yes, that's correct.
11 Q. And it's Ham who wrote the source code that performed the
12 authentication function in DeCSS, is that correct?
13 A. No, that is not correct. He did not write the
14 authentication code. He wrote the decryption code.
15 Q. He wrote the encryption code?
16 A. Decryption code.
17 Q. Decryption.
18 A. Yes.
19 Q. Ham is a member of Masters of Reverse Engineering or MORE?
20 A. That's correct.
21 Q. And are you also a member of MORE?
22 A. Yes.
23 Q. There are other members in Germany and Holland, is that
24 correct?
25 A. Well, the third member is in the Netherlands.
634
1 Q. And it was Ham's reverse engineering of the Xing DVD
2 player that revealed the CSS encryption algorithm, am I right?
3 A. Yes, that's correct.
4 Q. Reverse engineering by Ham took place in or about
5 September 1999?
6 A. Yes, I believe it was late in September of 1999.
7 Q. And you testified that it was this revelation of the CSS
8 encryption algorithm and not any weakness in the CSS cipher
9 that allowed MORE to create DeCSS, is that correct?
10 A. Yes, that's correct.
11 Q. You obtained the decryption portions of the DeCSS source
12 code from Ham, correct?
13 A. Yes, that's correct.
14 Q. You then compiled the source code and created the
15 executable?
16 A. Well, in the form I received it, it was not compatible.
17 Q. Well, you testified the operation of DeCSS on a Windows
18 machine initially, correct?
19 A. Actually, I tested it under -- it was under Windows.
20 Q. And in performing your tests on DeCSS, which DVDs did you
21 decrypt?
22 A. Well, I don't recall which DVD I tried first, but the
23 second DVD I tried was the Matrix.
24 Q. And how many times did you decrypt DVDs?
25 A. Well, each time I watch a movie I decrypt a DVD. I don't
635
1 recall how many times I watched the DVD movie on my computer.
2 Q. When you posted the Microsoft Windows executable version
3 of DeCSS, you had no knowledge that the program would run
4 under Linux, correct?
5 A. No, that's not correct.
6 Q. Had you run it under Linux at that time?
7 A. No, I had not, but in theory it should work using an
8 application called wine, W-I-N-E.
9 Q. When you posted the DeCSS executable on your web page, you
10 did not post the source code, correct?
11 A. That is correct.
12 Q. You testified a moment ago that you thought it would work
13 under wine, is that correct?
14 A. That is correct.
15 Q. Have you ever actually tried that?
16 A. No, I have not.
17 THE COURT: Mr. Garbus, would you have a seat,
18 please.
19 Q. Now, you first posted the DeCSS executable utility where?
20 A. I posted it on my website.
21 Q. And after that, you announced that it was available on
22 your website in two different forums or two different places,
23 correct?
24 A. Yes, that is correct.
25 Q. And what were those two places?
636
1 A. LiViD mailing list and the Pound PC DVD IRC chat room.
2 Q. Which did you do first?
3 A. That would be the Pound PC DVD chat room.
4 Q. Am I correct that when you posted the announcement to the
5 LiViD mailing list that you just testified about, that was the
6 very first time you had ever posted anything or sent any
7 message to the LiViD mailing list?
8 A. Yes, that is correct.
9 Q. And did your announcement say anything about which
10 operating systems it had been tested on?
11 A. Yes, I believe it did.
12 Q. And which operating systems did it identify?
13 A. I believe the message said it had been tested on Windows
14 95, 98 and Windows NT.
15 Q. Any others?
16 A. I believe Windows 2000 was mentioned, but I don't recall
17 if it had been tested on that or not.
18 Q. And were there any other operating systems you identified
19 as having tested it under?
20 A. No, I don't.
21 Q. So they were only Windows operating systems.
22 A. Yes.
23 Q. Now, you testified last night that your web page was a
24 support page or Sigma Designs hardware-based DVD player, am I
25 correct?
637
1 A. Yes, that is correct.
2 Q. What is Sigma Designs?
3 A. Sigma Designs is a company in California which has several
4 years of experience in MPEG.
5 Q. To your knowledge, do they manufacture a CSS-licensed DVD
6 player that runs under Microsoft Windows?
7 A. Yes, they do.
8 Q. What is it called?
9 A. It's called Hollywood Plus.
10 Q. Hollywood Plus.
11 A. Yes.
12 Q. And you are also aware that Sigma Design has announced
13 plans to release a Linux-based DVD player?
14 A. Yes, I am.
15 Q. Do you understand that Sigma Designs has a license from
16 the DVD-CCA to do that?
17 A. Well, I would assume they have or else they wouldn't be
18 making it.
19 Q. And have you provided some assistance to the French
20 programmer for Sigma Designs who is working on that Linux DVD
21 player, correct?
22 A. Not direct assistance, but I have e-mailed him.
23 Q. You have?
24 A. E-mailed him.
25 Q. And have you provided any technical information to him?
638
1 A. No, I have not.
2 Q. Before you posted the DeCSS executable onto your web page
3 and made the announcement that you testified about, have you
4 ever had any communications with the defendant in this lawsuit
5 Eric Corley?
6 A. No, I have not.
7 Q. You never communicated with him at all until after this
8 lawsuit was filed, correct?
9 A. Yes, I believe that's correct.
10 Q. And you never saw Mr. Corley post a message to the LiViD
11 mailing list prior to that time, correct?
12 A. Yes, that is correct.
13 Q. In fact to your knowledge -- strike that.
14 Do you have any knowledge that Mr. Corley has ever
15 been a member of the LiViD group?
16 A. No, he has not.
17 Q. Now, at the time you posted your message onto the LiViD
18 mailing list that you mentioned, you did not have the DeCSS
19 source code on your page, correct?
20 A. That is correct.
21 Q. And am I correct that some members of the LiViD group
22 expressed anger at you for not providing the source code with
23 the utility?
24 A. Yes, that is correct.
25 Q. What is a flame war?
639
1 A. A flame war is when two or several people engage in a
2 discussion which gets out of hand.
3 Q. Am I correct that you got involved in a flame war with at
4 least one member of the LiViD group over the fact that you
5 didn't post the DeCSS source code?
6 A. I did get involved in a flame war, but I am not aware if
7 he was a member of the LiViD group or not.
8 Q. Where did the communication you had with respect to this
9 take place?
10 A. Some of it took place on the LiViD mailing list and some
11 of it was sent directly.
12 Q. And it began on the LiViD mailing list?
13 A. Yes, that is correct.
14 Q. Now, Mr. Fawcus created the css-auth source code that you
15 used in creating the utility, correct?
16 A. Yes, that is correct.
17 Q. And the dispute centered around the fact that the German
18 member of MORE, Ham, had used Mr. Fawcus's code but had
19 removed Fawcus's name and copy left notification, is that
20 correct?
21 A. Yes.
22 Q. What is copy left, as you understand it?
23 A. Copy left is when you use basically a copyright that gives
24 the user freedoms instead of taking them away.
25 Q. And the dispute centered around someone's complaint that
640
1 MORE was not playing by the -- I'm sorry. What is GPL?
2 A. GPL is a copy left license provided by the Free Software
3 Foundation.
4 Q. Was MORE's failure to credit Mr. Fawcus a violation of the
5 GPL license, as you understood it?
6 A. Yes, I believe so.
7 Q. In a nutshell, MORE was not playing by the GPL rules that
8 the LiViD group normally plays by, correct?
9 A. Yes, that is correct.
10 Q. And it was your understanding that Mr. Fawcus could sue
11 you for that, correct?
12 A. Well, yes, that is correct.
13 Q. And you eventually settled your difference with
14 Mr. Fawcus?
15 A. Yes, that is correct.
16 Q. You got a special license from him to use his source code
17 without credit, correct?
18 A. Well, he agreed that we didn't have to do anything to
19 provide new copies of the source with the original header.
20 Q. And your reason for doing that was to avoid making DeCSS's
21 source code fully open source.
22 A. That's not correct. It was already an open source at that
23 time.
24 Q. Am I correct that you didn't want it to be open source so
25 that you could keep the secrecy of the Xing key?
641
1 A. Yes, that is correct.
2 Q. The Linux community, as you understand it, believes in
3 free source code, open source code, correct?
4 A. Yes, that is correct.
5 Q. And MORE didn't make DeCSS available with open source code
6 to the entire Linux community when it posted the utility,
7 correct?
8 A. Yes, that is correct.
9 Q. When you announced to the LiViD mailing list in October
10 that DeCSS.exe was available on your web page, you said that
11 it works with the Matrix, DoD Speed Ripper doesn't, correct?
12 A. Yes, that's correct.
13 Q. It's your belief, I take it, that DeCSS is superior to
14 Speed Ripper?
15 A. Excuse me. Can you please repeat.
16 Q. Do you believe that DeCSS is superior to Speed Ripper?
17 A. Not directly superior, but it does decrypt some movies
18 that the Speed Ripper did not decrypt at that time.
19 MR. SIMS: I have no more questions. Thank you.
20 THE COURT: Mr. Hernstadt.
21 MR. HERNSTADT: Thank you.
22 REDIRECT EXAMINATION
23 BY MR. HERNSTADT:
24 Q. You were asked if you had used DeCSS to decrypt a DVD.
25 Have you ever used a decrypted file from a DVD to make a DivX?
642
1 A. No, I have not.
2 Q. Have you ever placed a decrypted DVD on the Internet,
3 transmitted it in some way?
4 A. No, I have not.
5 Q. Have you ever made it available on the Internet for
6 someone to download?
7 A. No.
8 Q. Have you ever sold a decrypted DVD in any form?
9 A. No, I have not.
10 Q. Have you ever traded a decrypted DVD with anyone?
11 A. No, I have not.
12 Q. Have you ever downloaded a DivX movie?
13 A. No.
14 Q. Have you ever made a DivX movie available for uploading?
15 A. No, I have not.
16 Q. Have you ever made a DivX movie available for someone else
17 to download from your website?
18 A. No, I have not.
19 Q. Have you ever used DeCSS for anything other than viewing
20 DVDs that you purchased?
21 A. No, I have not.
22 Q. You mentioned the Sigma Designs player. Is that a
23 software player?
24 A. Well, it's a soft -- it's hardware-based. It comes with a
25 piece of hardware but you also need the player that comes with
643
1 it, a piece of software.
2 Q. Does that mean you have to buy two pieces?
3 A. The product contains two pieces.
4 Q. You testified that you did not release the source code on
5 the DeCSS executable when you made the program a available on
6 your website.
7 A. Yes, that is correct.
8 Q. Did you make the source code available to Derek Fawcus?
9 A. Yes, that is correct.
10 Q. And did Derek Fawcus write that source code -- rewrite the
11 source code?
12 A. Yes, I believe he did.
13 Q. What operating system did he rewrite it for?
14 A. He wrote it for Linux.
15 Q. Why did you not want to release the source code for DeCSS?
16 A. Because the DeCSS source code contained the Xing player
17 key. If we were to release that source, the Xing key would be
18 revoked, Xing would probably have their license revoked, and
19 new DVDs which would be released later would not work with
20 Xing's player nor the player we would have created.
21 Q. You said that the German member of MORE found the CSS
22 algorithm by reverse-engineering the software. Did he say to
23 you whether it was difficult to do?
24 A. No, he said it was not difficult.
25 Q. Okay. You said that you did the same thing based on what
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1 he informed you about how he had done it?
2 A. Yes, I did.
3 Q. Did you find it difficult to do?
4 A. No.
5 MR. SIMS: Objection. Irrelevant.
6 THE COURT: Sustained.
7 Q. How long did it take you to find the algorithm?
8 MR. SIMS: Objection. Irrelevant.
9 THE COURT: Why is it relevant, Mr. Hernstadt?
10 MR. HERNSTADT: Well, Mr. Sims brought it out on
11 cross-examination, and I am merely trying to clarify the
12 record with respect to the reverse-engineering process.
13 THE COURT: Did you raise it, Mr. Sims?
14 MR. SIMS: Certainly not in terms of effectiveness,
15 which is where we're going now.
16 THE COURT: Did you raise it, whether it was
17 subjectively in terms of effectiveness or not?
18 MR. SIMS: I don't think I did.
19 THE COURT: Let me look at my notes then.
20 MR. SIMS: I did ask questions about the obfuscation
21 about the Xing key, but ...
22 THE COURT: Mr. Hernstadt, I don't see it quickly. I
23 mean, is there something that you remember that will prompt my
24 memory?
25 MR. HERNSTADT: I believe it was something about that
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1 the key was hidden. I don't recall exactly what it is. I
2 just had it in my note.
3 THE COURT: It will take less time to hear it then.
4 Overruled.
5 THE WITNESS: Can you please repeat the question?
6 THE COURT: Did you find it difficult to do, was the
7 question.
8 THE WITNESS: No, I did not.
9 Q. You discussed a dispute with Derek Fawcus about taking his
10 name off the source code that he had provided. Were you aware
11 of that?
12 A. No, I was not aware of that.
13 Q. When did you find out that his name had been taken off the
14 source code?
15 A. I found that out when he posted a message to the LiViD
16 mailing list saying that one of the files we had in our source
17 was actually his, but it did not contain the GPL header on his
18 name.
19 Q. What did you do when you read that posting to the LiViD
20 list?
21 A. I e-mailed him and tried to sort out a solution.
22 MR. HERNSTADT: Thank you very much, Mr. Johansen. I
23 have nothing further.
24 MR. SIMS: Nothing more, your Honor.
25 THE COURT: All right. Mr. Johansen, thank you very
646
1 much.
2 Mr. Gold?
3 MR. GOLD: I'm going to call Mikhail Reider to the
4 stand.
5 THE COURT: Is Mr. Young back there? We are working
6 on your request, but in the interim I can tell you that you
7 are able to buy from the court reporters a floppy that has the
8 day's proceedings by about 7 o'clock every night.
9 MR. COOPER: Good morning. Your Honor, plaintiffs
10 call Mikhail Reider.
11 MIKHAIL REIDER,
12 called as a witness by the Plaintiffs,
13 having been duly sworn, testified as follows:
14 MR. GARBUS: May I just ask one thing? There is some
15 question about whether or not the plaintiffs will rest after
16 this witness or call another witness. Could we know that so
17 we can decide how to arrange our witnesses?
18 THE COURT: That's a reasonable request.
19 Mr. Gold?
20 MR. SIMS: I don't know the answer to that. The
21 short answer is if we have completed a stipulation, and we
22 sent our work over to Mr. Hernstadt -- let me go find out.
23 THE COURT: I take it the answer is in your hands at
24 the moment, Mr. Garbus.
25 MR. SIMS: I don't believe it will be necessary,
647
1 but --
2 MR. GOLD: Your Honor, this will be our last witness
3 and we will rest after she leaves the stand.
4 THE COURT: Whether or not you get the stipulation?
5 MR. GOLD: Yes.
6 THE COURT: Okay. You have your answer, Mr. Garbus.
7 Proceed, Mr. Cooper.
8 MR. COOPER: Thank you, your Honor.
9 DIRECT EXAMINATION
10 BY MR. COOPER:
11 Q. Good morning, Ms. Reider.
12 Q. Who is your employer?
13 A. The Motion Picture Association.
14 Q. What is your current job position?
15 A. I am manager of worldwide Internet antipiracy operations.
16 Q. What is your education background?
17 A. I have an undergraduate Bachelors in international
18 relations taken from the California State University of
19 Northridge, and an M Phil. in international conflict
20 resolution from the University of Dublin, Trinity College.
21 Q. What is your employment background?
22 A. From 1985 through '89 I was with the Rand Corporation, a
23 governmental think tank as a research assistant. Subsequent
24 to that, I took my M Phil. and joined the banking interest
25 Great Western Financial Corporation as a legislative and
648
1 regulatory analyst. After that, I joined the Department of
2 Justice Drug Enforcement Administration as an intelligence
3 research specialist.
4 Q. When were you with the Department of Justice for the DEA?
5 A. From 1992 through '95.
6 Q. And what did you do with the DEA?
7 A. As an intelligence research specialist I collected and
8 analyzed intelligence as it related to federal narcotics
9 trafficking investigations.
10 Q. And after the Department of Justice, what did you do next?
11 A. I was briefly with the United States State Department
12 Peace Corps in Thailand.
13 Q. And how long were you with the Peace Corps in Thailand?
14 A. Five to six month.
15 Q. And after you returned to the United States, what was your
16 next position?
17 A. Again with the U.S. Department of Justice, this time in
18 the Federal Bureau of Investigation.
19 Q. What did you do for the F.B.I.?
20 A. Intelligence research specialist.
21 Q. And that was during what period?
22 A. 1995 through '97.
23 Q. After your position with the F.B.I., what was your next
24 position?
25 A. I joined the California State Bar Association as an
649
1 investigator.
2 Q. And how long were you with the California State Bar?
3 A. Only eight months.
4 Q. Why was that?
5 A. The Governor of California vetoed the fee bill which
6 funded the state bar.
7 Q. Okay. And after that you took a position with?
8 A. The Motion Picture Association.
9 Q. I see. And your position with the MPAA began when?
10 A. In spring of 1998.
11 Q. Okay. Did you use computers in connection with the job
12 positions you just described?
13 A. Yes. Yes, through all of the jobs.
14 Q. In what ways?
15 A. Both in research on the Internet and specialized data
16 bases, as well as using proprietary software programs for
17 analyzing large volumes of electronic data.
18 Q. Do you have any specialized training in Internet
19 investigations?
20 A. Yes, I do.
21 Q. What is that training?
22 A. Both through the Department of Justice through
23 intelligence schools and also through HTCIA.
24 Q. What is HTCIA?
25 A. The High Technology Crime Investigators Association. It's
650
1 a worldwide body comprised of state, local, federal law
2 enforcement from around the world as well as private industry
3 security officials who are dedicated to fighting cyber crime.
4 Q. Do you have any computer program experience?
5 A. Yes, I do.
6 Q. How extensive is that?
7 A. It's limited. UNIX, BASIC, does.
8 Q. Was that also received in the course of your various prior
9 employments?
10 A. Yes, it was.
11 Q. What are your current job responsibilities at the MPAA?
12 A. I oversee all Internet investigations around the world and
13 coordinate between our worldwide offices.
14 Q. Since the beginning of your employment by the MPAA in 1998
15 has the MPAA been monitoring the Internet for infringement
16 activity?
17 A. Yes, actively.
18 Q. Can you generally describe what has been done?
19 A. Well, we monitor and search routinely website, FTP sites,
20 FSUs, file swapping utilities, IRC, the Internet relay chat
21 channels, news groups or Usenet.
22 Q. Could you briefly describe what file swapping utilities
23 are?
24 A. They are basically glorified FTPs. They allow individuals
25 to directly transfer files between one another, music or
651
1 movies.
2 Q. Can you give me the name of any file swapping utility that
3 you are currently monitoring?
4 A. Sure. IMESL, Gooey, Hotline, ScourNet, FileShare,
5 FileSwap, Freenet.
6 Q. Is Napster also a file sharing utility?
7 A. Napster also is an FSU.
8 Q. Would you just tell us what Internet relay chats are?
9 A. It's basically the CB radio of the Internet. It was
10 created in the mid to late 80s. It allows people to talk in
11 real time on line to one another no matter where they are, or
12 near real time. They have a number of networks and within
13 that channels.
14 Channels are created by any user whenever they feel
15 like it, so channels can go up and go down in a matter of
16 minutes or hours, or channels can be kept alive for years if
17 the operators of that channel so deem.
18 Q. Once these channels are set up, are they all accessible to
19 the public?
20 A. No, some of them are members only.
21 Q. How often does the MPAA monitor the Internet?
22 A. Daily.
23 Q. And how do you identify sites to monitor?
24 A. It's a combination of factors. Our member companies will
25 send up sites they wish us to monitor. The public will call
652
1 or write in to us with sites as well as through our own
2 intelligence gathering and investigations we have sites that
3 routinely lead us to other plays that harbor piracy on line.
4 Q. Have the MPAA come aware of any instances of member
5 companys' DVDs being decrypted and made available in any form
6 on the Internet prior to October 1999?
7 A. No.
8 Q. When was the first time you heard of the existence of a
9 utility that defeated CSS and decrypted the content of one of
10 the studio's DVDs?
11 A. Early to mid-October of 1999.
12 Q. What was that utility?
13 A. DeCSS.
14 Q. What was the source of the original information you
15 received in the existence of DeCSS?
16 A. I found it on a news posting on Slashdot.
17 Q. What did you do about the information regarding the
18 existence of DeCSS?
19 A. I followed their links and ultimately downloaded a copy of
20 DeCSS.
21 Q. And did you test it to see if it worked?
22 A. Yes, I did.
23 Q. Did it?
24 A. Yes, horrifyingly simple to use.
25 Q. How long did it take you to download DeCSS?
653
1 A. A matter of minutes.
2 Q. And how long did it take you to decrypt a DVD using DeCSS?
3 A. Approximately five minute.
4 Q. What operating system were you using?
5 A. Windows.
6 Q. Was DeCSS a Windows program?
7 A. Yes, it was.
8 Q. What did you do next?
9 A. I notified our legal department and Ken Jacobson, who is
10 my direct supervisor, and began to request the issuance of
11 cease and desist letters. Ultimately we filed this lawsuit.
12 Q. Now, have you ever heard of a program called DiVX?
13 A. Yes, I have.
14 Q. And when did you first become aware of that program?
15 A. Late February, early March of 2000.
16 Q. Did you download it?
17 A. Yes, I did.
18 Q. And did you examine it?
19 A. Yes, I did.
20 Q. What is it?
21 A. It's a codec or compression, decompression algorithm that
22 allows one to take the rather substantial files from the DVD
23 and highly compress them to make it easy for distribution or
24 manipulation.
25 Q. Did there come a time when the MPAA became aware of the
654
1 availability of decrypted DVDs on the Internet?
2 A. Yes, we did.
3 Q. When was that for the first time?
4 A. Late April, early May of 2000.
5 Q. How did you become aware of that?
6 A. Through our routine monitoring some of the pirate sites we
7 routinely look at, we began to see evidence of these decrypted
8 DVDs.
9 Q. How many titles initially did you see being available?
10 A. A handful.
11 Q. How many sites?
12 A. I'm sorry?
13 Q. How many sites initially?
14 A. Again, a handful.
15 Q. Since late April or early May, has the MPAA become aware
16 of any increase in the availability of encrypted DVDs?
17 A. Absolutely. The number has certainly surged upward.
18 Q. On what types of sites have you seen these DVDs being
19 available?
20 A. It runs the gamut from website to FTP sites, offering on
21 IRC channels, FSUs.
22 Q. Do all of the sites offer decrypted DVDs for download or
23 hard goods through barter or sale?
24 A. No, not all of them.
25 MR. GARBUS: I would object unless we have the
655
1 windows or the pictures of the site that she is referring to.
2 Other than that, it's hearsay.
3 THE COURT: What do you say, Mr. Cooper?
4 MR. COOPER: Your Honor, the windows or site, if you
5 will, are on the Internet and are constantly changing. I
6 don't believe that there are any screen shots other than those
7 we have produced in the discovery. We have produced some of
8 those, and we are eliciting general testimony regarding this
9 witness's experience and activity in connection with what the
10 MPAA knew about these activities and when. And for that
11 purpose I think it's competent.
12 MR. GARBUS: I will object to any testimony that's
13 not related to particular screen shots. Any testimony that
14 she wants to talk about that has screen shots related to it or
15 marked in as exhibits, I would have no objection to.
16 THE COURT: Is it your position, Mr. Garbus, that the
17 plaintiffs in this case and the MPAA knew and did nothing
18 about cracks of CSS for a long time? Haven't you been singing
19 that refrain?
20 MR. GARBUS: Yes.
21 THE COURT: And that's not a pejorative comment, but
22 since the opening of the trial?
23 MR. GARBUS: Yes.
24 THE COURT: Why isn't it relevant to that?
25 MR. GARBUS: Anything is relevant if there is
656
1 admissible evidence with respect to it.
2 THE COURT: It's state of mind. It's offered not for
3 the purpose of the truth. It's offered for the purpose of
4 state of mind.
5 MR. GARBUS: I object to it. I think it's offered --
6 THE COURT: Why isn't it relevant to state of mind?
7 Is state of mind relevant, in your estimation?
8 MR. GARBUS: I think the state of mind is not
9 relevant. I think what's relevant is what the truth is.
10 THE COURT: Mr. Cooper, what do you say to that?
11 MR. COOPER: Well, we agree that state of mind is not
12 relevant, although we are trying to respond to what we
13 understood the defendants' position was. This information is
14 being offered as testimony of what Ms. Reider saw in
15 connection with her activity for the MPAA. It's competent
16 testimony with respect to that.
17 Whatever Mr. Garbus might want to ask her regarding
18 what an individual site may have said, I think the issue is
19 what the MPAA was doing in connection with its investigations
20 in response to Mr. Garbus's prior positions that it wasn't
21 doing enough.
22 THE COURT: Look. Haven't the plaintiff's taken the
23 position -- I mean, isn't this a precise turnabout? Mr.
24 Garbus spent a couple of days trying to establish that this
25 CSS system had been cracked a long time ago, the studios knew
657
1 it, they didn't protect themselves, and you folks constantly
2 objected that none of that was relevant on the ground that the
3 effectiveness or robustness of your security system was not
4 material here, and I sustained those objections. Right?
5 MR. COOPER: Yes, your Honor.
6 THE COURT: All right. So now comes turnabout. You
7 want an answer on all of that, and I previously ruled it out
8 when he tried to put it in. Why shouldn't I do the same thing
9 for the same reason when you try to put it in?
10 MR. COOPER: Your Honor, what you are suggesting
11 about the proper scope of the issues that are reasonably and
12 in material dispute in this case, we agree with. The question
13 here is a little different than the one you earlier ruled
14 upon.
15 THE COURT: Tell me how it's different.
16 MR. COOPER: The earlier question went to the
17 efficacy of CSS as a security system.
18 THE COURT: Right.
19 MR. COOPER: This I believe addresses Mr. Garbus's
20 second point, which we also believe is irrelevant, and that is
21 that the MPAA, once the circumvention device became known, did
22 too little or otherwise failed to react to the threat imposed
23 by DeCSS quickly enough. And while I believe that that is
24 also irrelevant, we are attempting to respond to that to the
25 extent the Court is interested in the issue.
658
1 THE COURT: Well, let's find out. Mr. Garbus, what
2 Mr. Cooper describes as your second point, are you in fact
3 making that argument, that is to say, that the MPAA was too
4 slow getting here?
5 MR. GARBUS: What she is testifying to, as I
6 understand it, is that --
7 THE COURT: Mr. Garbus, I will let you say what you
8 want to say, but I really would like an answer to the question
9 first.
10 MR. GARBUS: Can I hear the question again.
11 (Record read)
12 THE COURT: Are you making that argument?
13 MR. GARBUS: The answer is yes.
14 THE COURT: Overruled. I am not taking it for the
15 truth. I am taking it on the issue of whether the MPAA's
16 right to relief, if it has any, is in any way affected by
17 undue delay in getting to the courthouse.
18 Go ahead, Mr. Cooper.
19 BY MR. COOPER:
20 Q. Do all of the sites you have just described offer
21 decrypted DVDs for download or hard goods through barter or
22 sale?
23 MR. GARBUS: Let me see if can I make it clear. Our
24 point is --
25 I'm prepared to do this at the sidebar.
659
1 THE COURT: Go ahead, Mr. Garbus.
2 MR. GARBUS: It's our point that once they knew about
3 DeCSS, two things happened. One is they did nothing about it;
4 two, that prior to the time that they knew about DeCSS, they
5 knew about other utilities that ripped DVDs, and as I
6 understand what her testimony is, it is that she saw sites
7 that said it's from the DVD. These are not sites that say, as
8 I understand her testimony, it's from a DVD that's deencrypted
9 through DeCSS. So just let me parse out our position a little
10 more precisely, if I can. Again, I am prepared to do it at
11 the sidebar unless the Court is comfortable.
12 THE COURT: Mr. Garbus, you can stop repeating that.
13 If I find I need a sidebar, I will let you know.
14 MR. GARBUS: Thank you.
15 It is our position that last year they knew about a
16 number of procedures that could be utilized with respect to
17 DVD movies, that the only procedure that in any way related to
18 Linux or, if you want to call it a competitive technology, was
19 DeCSS. What they did is they did not go after any of the
20 technologies, they only went after DeCSS. So the delay deals
21 with their knowledge prior to DeCSS that there were other
22 rippers and other utilities and their failure to do that. At
23 least that's our position.
24 THE COURT: My ruling is the same. Go ahead,
25 Mr. Cooper.
660
1 I'm not taking it for the truth. I'm taking it as I
2 indicated.
3 MR. COOPER: Would you read back the pending
4 question, please?
5 (Record read)
6 THE COURT: That is, the truth of anything that was
7 on the websites.
8 A. No, not all of the sites. Some of them point in the
9 direction of where to locate them but they don't actually
10 offer distribution themselves.
11 Q. And has the MPAA followed those pointers from one site to
12 another?
13 A. Yes, we have.
14 Q. And approximately how many of these site have you become
15 aware of in the last two and a half months?
16 THE COURT: Be specific about what sites you are
17 talking about. So far we have ones that offer to barter and
18 sell and you've got ones that point.
19 Q. Can you distinguish between the ones that offer for
20 barter, sale or download on one hand and the ones that point?
21 A. Yeah. Approximately over 40 sites.
22 Q. Of which type?
23 A. Those which offer for barter or sale, distribution as
24 opposed to just pointing in the direction.
25 Q. What is the MPAA currently doing about these sites?
661
1 A. We have ongoing investigations.
2 Q. And can you, without going into the investigative details
3 of any of those investigations, tell me anything about them?
4 A. We have investigations currently active with federal law
5 enforcement here in the U.S. and worldwide.
6 Q. Which U.S. agencies?
7 A. U.S. Customs, Secret Service and F.B.I.
8 Q. Do you have information regarding any connection between
9 the recent availability on the Internet of decrypted DVDs and
10 the utility DeCSS?
11 A. Absolutely.
12 Q. What is that information?
13 A. Well, prior to the appearance of DeCSS we had seen no
14 decrypted DVDs anywhere on the Internet, and thereafter we
15 watched DeCSS proliferate alarmingly. It was simple to use.
16 We saw decrypted DVDs appear for sale and distribution not
17 long thereafter.
18 MR. GARBUS: I object to the question. She was asked
19 what information she had and then she responded with
20 speculation.
21 THE COURT: Where was the objection before she
22 answered, Mr. Garbus?
23 MR. GARBUS: It was only after she answered that it
24 was clear.
25 THE COURT: You know better than that, with all due
662
1 respect, but I think part of this testimony --
2 MR. GARBUS: Look at the answer. See where the
3 answer comes in.
4 THE COURT: Part of this answer has no foundation, at
5 least to the extent it's offered for the truth. The portion
6 in which the witness said that prior to the appearance of
7 DeCSS they had seen no decrypted DVDs anywhere on the
8 Internet, I think that is perfectly admissible. It relates to
9 her personal knowledge.
10 The part of the answer that speaks of watching it
11 proliferate at an alarming rate I take to be that she saw lots
12 of sites on the Internet offering movies, but I have heard no
13 evidence based on personal knowledge that what was on the
14 Internet, that is to say, offers to sell or barter or
15 whatever, are properly considered for the truth of those
16 statements.
17 The part of the answer that says we saw decrypted
18 DVDs appear for sale and distribution not long thereafter, I
19 guess I need to hear more about in order to find out on what
20 basis the witness is telling me that.
21 MR. COOPER: Just to understand that last point, I
22 believe the witness testified that DeCSS was first on the
23 Internet in October and that the first appearance --
24 THE COURT: Here is your problem, Mr. Cooper. Your
25 problem is whatever was said a few minutes ago that you are
663
1 trying to prove, that in fact since October there are lots of
2 movies being bought and sold over the Internet that were
3 decrypted through DeCSS, you are trying to prove it by saying
4 that there were none before October. Then DeCSS appeared, all
5 of which I think is relatively -- at least the second point is
6 uncontroversial. And the first point is evidence to support
7 your position, although it's disputed.
8 The third point depends on the truth of whatever was
9 on the Internet. That is to say, if the witness saw 40
10 website offerings to sell DVD movies, you would like me to
11 conclude that in fact those websites were, as they said on the
12 Internet, offering to distribute decrypted movies, that is,
13 they would perform as they indicated they would perform; and
14 then you are asking me further to draw the inference from the
15 timing that whatever they were selling or offering to sell
16 came from the DeCSS.
17 Now, the link you are having a problem with here is
18 that I think Mr. Garbus's objection is that it would be
19 inappropriate for me to assume that simply because you see on
20 the Internet a page that says "come get your copy of the
21 Matrix from us" means that in fact if somebody went to that
22 site a decrypted copy of the Matrix would be forthcoming.
23 That is essentially your argument, right, Mr. Garbus?
24 MR. GARBUS: Yes, or that there is any reason to
25 believe that it comes from DeCSS or any other source.
664
1 THE COURT: Well, I understand that point as well,
2 but they are asking me to infer that from the timing.
3 MR. GARBUS: Yes, your Honor, you stated our
4 position.
5 THE COURT: Okay. Now, he is making what I take to
6 be essentially a hearsay and/or a competence argument,
7 probably more hearsay than competence, about my considering,
8 or the purpose for which I consider Ms. Reider's testimony
9 about what is available on the Internet.
10 The situation would be the same if we were trying a
11 trademark case and you were trying to prove the availability
12 in the marketplace of counterfeit Levi jeans from newspaper
13 articles that indicated that somebody was offering counterfeit
14 Levi jeans. Now, there is perhaps a legal issue that you may
15 want to brief, both of you, as to whether that's appropriate
16 evidence, but I think that analogy is exactly what we're
17 talking about. Right, Mr. Garbus?
18 MR. GARBUS: Yes, sir.
19 MR. COOPER: That's Mr. Garbus's analogy, your Honor.
20 We don't believe --
21 THE COURT: No, that was my analogy.
22 MR. COOPER: We don't believe that's the correct
23 analogy in this case. This is not a case in which we are
24 pursuing for the relief sought in this case, the relief that
25 would be sought in a case in which the bootleg --
665
1 THE COURT: No, of course you're not. But the whole
2 purpose of this line of testimony, putting aside responding to
3 this sort of quasi laches argument, is to persuade me that
4 this is a real problem. And whether it's a real problem
5 depends, at least in part, on whether it's out there in the
6 marketplace. And the way those kinds of issues are usually
7 handled in a trademark case is that the investigator comes in
8 and says that I went to the store on Fordham Road and I bought
9 these six pairs of counterfeit jeans and here they are, and a
10 witness shows up from Levis and says we didn't make them,
11 they're counterfeit.
12 MR. COOPER: Your Honor, this goes to the question of
13 the appropriateness of relief and the question of a reasonable
14 apprehension of harm in the absence of that relief.
15 We are not attempting to prove here or indeed seek
16 the relief associated with copyright infringement per se. We
17 are not attempting to adduce the kinds of hard evidence that
18 would be necessary for a case that involved those issues.
19 What we are doing is attempting to provide to you our
20 reasonable apprehension that in the absence of the release
21 sought we will be harmed.
22 THE COURT: Well, you know, I hear the words but I'm
23 not sure I understand the symphony, to mix my metaphors very
24 badly. I really am not.
25 Look, I will hear the testimony, Mr. Garbus, but you
666
1 clearly know I understand the point, and if you want to brief,
2 either or both sides, the issue of what I'm supposed to
3 consider, that aspect of the testimony we have just narrowly
4 focused on, the witness's testimony about what's available
5 over the net, you are welcome to brief it. And in order to
6 decide this case, if I find I have to decide it, I'll decide
7 it. For now I'll hear the evidence.
8 MR. COOPER: Thank you, your Honor. Let me just
9 conclude with this witness then, your Honor, based on what you
10 have said, with two areas of questions.
11 BY MR. COOPER:
12 Q. First, I believe that we left off with this question of
13 the connection between DeCSS and the decryption of movies.
14 Have you seen any direct connection between DeCSS and
15 the decrypted DVDs on the Internet in your investigation?
16 MR. GARBUS: I object on the grounds of lack of
17 foundation.
18 THE COURT: Let me just go back to one or two more
19 thoughts that just occurred to me about the last question
20 before you go on, Mr. Cooper.
21 Among the things that you ought to consider, if you
22 are going to brief this point, and then I will consider
23 whether you brief it or not, are these:
24 First of all, I suppose it might be argued that when
25 somebody posts on the Internet saying, "Come to me, I'll sell
667
1 you a copy of the Matrix," that is a statement of a state of
2 mind, or a present intention or something like that from which
3 one is entitled to infer conduct. I'm not sure about that,
4 but that's why I put it on the table.
5 Secondly, maybe this notion of a verbal act as it
6 relates to the hearsay rule is implicated.
7 I'm really not sure about either one of those points,
8 but I want to let you know I'm thinking about them so you can
9 respond in due course.
10 Okay, Mr. Cooper.
11 MR. COOPER: Thank you, your Honor.
12 BY MR. COOPER:
13 Q. Do you have the question in mind, Ms. Reider?
14 A. Could you repeat it, please?
15 Q. Let me restate it.
16 Has there been in your investigation any direct
17 connection in the information that you have seen between DeCSS
18 and the decryption of the movies on the Internet?
19 A. Yes, there have been.
20 Q. What is that information?
21 A. I have seen sites where they suggest the use --
22 MR. GARBUS: I assume I have a continuing objection.
23 THE COURT: Look, I think you should make your
24 objections, but if it's the same objection, if you would be so
25 kind as to say "the same objection," then I will simply know
668
1 it's the same thing, we don't have to pause, I will take it
2 subject to what I just indicated.
3 MR. GARBUS: I think I will say the same thing.
4 THE COURT: Okay. Same ruling. If it's something
5 new, let me know it's something new.
6 Go ahead, folks.
7 THE WITNESS: May I continue?
8 I have seen sites that have suggested the use of
9 DeCSS in order to then use the DivX codec against DVDs that
10 also offer DivX-made movies on their sites.
11 Q. Ms. Reider, given the wide proliferation of DeCSS on the
12 Internet, what help would the issuance of a permanent
13 injunction in this action do in your enforcement activity for
14 a number of companies?
15 MR. GARBUS: I object.
16 THE COURT: Well, I am going to take that answer as
17 well. Let it be added to my list of things that counsel
18 should consider with respect to the stuff of the Internet,
19 Rule 803(17) and how it applies in the electronic age. Rule
20 803(17).
21 Okay. Ms. Reider, I realize I'm stepping on your
22 lines constantly here this morning. Do you need the question
23 read back?
24 A. Yes, please.
25 (Record read)
669
1 MR. GARBUS: Your Honor, it seems to me, unless I'm
2 missing the point, that this sounds like a legal conclusion.
3 THE COURT: I don't think it's a legal conclusion. I
4 mean, that's kind of like asking somebody who lives downstream
5 of a damn that's about to be destroyed what effect a permanent
6 or preliminary injunction against tearing down the damn would
7 have on his property. The answer is a perfectly practical one
8 about preventing the river from flowing across the property.
9 I think that's what the question asks for.
10 MR. GARBUS: Okay. I have stated my position.
11 THE COURT: I understand.
12 MR. GARBUS: I'm not moved by the analogy between a
13 damn and a flowing river.
14 THE COURT: I know. I have given you lots of
15 analogies to think about in this case.
16 Go ahead, Mr. Cooper.
17 A. It would send a very strong message to both those that
18 would engage in illegal behavior and to law enforcement to
19 enforce it. It will make my job certainly, hopefully, easier
20 in terms of enforcing the right of our member companies for
21 the safety and security of their intellectual property.
22 Q. Let me ask you the same question with respect to the
23 effect, if the Court does not issue a permanent injunction,
24 what effect will that have on your activity to enforce the
25 interests of the member companies?
670
1 THE COURT: Believe me, that's not a useful question
2 either. There is another component that needs to be in that
3 question for it even to be relevant.
4 MR. GARBUS: Can we ask how upset she would be if you
5 deny the injunction?
6 THE COURT: We will have you testify about how upset
7 you will be if I grant it.
8 MR. COOPER: You mean if the Court concludes that
9 there is a violation here that determines not to issue the
10 injunction?
11 THE COURT: I don't know what the point of all this
12 is. Obviously the case isn't over, and if there is more
13 evidence that sheds light on the subject, I will certainly
14 consider it, but it seems to me that there is a reasonably
15 strong case to be made for the proposition that the barn is
16 unlocked and this horse is out.
17 Now, it seems to me also that what the MPAA wants is
18 a legal determination that unlocking this barn was illegal,
19 and so the next guy who considers unlocking another barn is
20 going to have something serious to think about. I suspect you
21 are also asking me to issue an injunction against the guy who
22 unlocked this barn not to unlock it again even though there is
23 no horse in it. So, you know, I don't know that this witness
24 has any light to shed on that subject.
25 MR. GARBUS: I must say I'm now finding your
671
1 analogies much more to my liking.
2 MR. COOPER: If I may, let me just say that our
3 position is obviously that the analogy that you referred to is
4 not apt, as Mr. Garbus has pointed out in his prior responses.
5 I recognize now is not the time to argue that issue. And
6 under the circumstances, if the witness's testimony about her
7 own experiential ability to deal with this issue and what aid
8 the Court's injunction might have in her enforcement
9 activities is not something that the Court is interested in
10 receiving at this time, then I would say that our --
11 THE COURT: That was not my point. This whole little
12 discussion got started because you asked her what the effect
13 of my not issuing an injunction would be, and I assume that I
14 am going to hear a tale of woe, obviously just like I've heard
15 a tale of woe on the other side if I do issue the injunction.
16 But the critical ingredient is that the witness has
17 just told me that what this is all about is to send a message.
18 And there are various ways to send messages if indeed the
19 message is one you are entitled to have sent. And the
20 concerns I expressed yesterday and today on this subject have
21 addressed the form of any message to which you might be
22 entitled. That's what that was addressed to.
23 So, when you leave out of your question to the
24 witness about an injunction the fact that if you are entitled
25 to prevail, you might get relief short of an injunction, it
672
1 seems to me it's just a waste of everybody's time, with all
2 due respect, counsel.
3 You can ask the question with both components if you
4 want.
5 Q. Ms. Reider, in the event that the Court determines that
6 the plaintiffs are entitled to some relief, and the Court
7 determines that the relief would not include a permanent
8 injunction, would that have an impact on your ability to
9 enforce the interests of the member companies?
10 MR. GARBUS: Same objection.
11 THE COURT: Overruled.
12 A. Yes, it will have a huge impact.
13 Q. What is that impact?
14 A. There won't be any teeth, if you will, in it. We will
15 have no way to enforce that injunction.
16 Q. In the absence of an injunction?
17 A. In the absence.
18 THE COURT: If there is no injunction, there is
19 obviously no injunction to enforce, Ms. Reider.
20 Q. The question is what impact would the absence of the
21 injunction have in connection with your attempt to enforce the
22 member company's rights?
23 A. It will have a huge impact.
24 Q. In what way?
25 MR. GARBUS: I have a continuing objection.
673
1 THE COURT: Overruled.
2 A. We would have no ability to stop this. It would grant a
3 license to anyone in the world to do what they would with our
4 intellectual property, not just in this respect but in future
5 events.
6 THE COURT: I won't say what I was just about to say,
7 but, look, Ms. Reider, let's get down to the facts of this
8 case as opposed to the rhetoric.
9 If I understand it correctly, DeCSS is everywhere on
10 the Internet. I realize that's a hyperbolic statement, but
11 it's all over the play, right?
12 THE WITNESS: It's prevalent, yes.
13 THE COURT: Now, if I issue an injunction that says
14 that Mr. Corley can't put it on his website, how does that
15 affect DeCSS being everywhere else?
16 THE WITNESS: It affects it in that we can get
17 enforcement of other sites that are offering it, refusing to
18 take it down.
19 THE COURT: Because of what?
20 THE WITNESS: Because there is precedent.
21 THE COURT: Suppose the result were -- and I am not
22 saying it will be -- but just hypothetically suppose the
23 result were that the judgment recited that there was clearly a
24 controversy between the plaintiffs and this defendant as to
25 the legality under the DMCA of posting this utility, that the
674
1 controversy is persisting, that the posting of this utility
2 violates the Act, that you are entitled to a judicial
3 declaration of whether the conduct is lawful or not and the
4 court declares it is unlawful, the question of whether to
5 issue an injunction, invoke the discretionary power of the
6 court, courts have said for 300 years, at least that courts of
7 equity ought not to use the equitable power of injunction to
8 try to accomplish the impossible or to perform something which
9 is entirely futile, and therefore, in the exercise of
10 discretion, given the broad prevalence of this particular
11 utility, this time the court declines to issue the injunction
12 because it would do no practical good.
13 Now, it seems to me that perhaps there is an argument
14 in those circumstances that when you go to somebody and say,
15 look, it's on your website but it is in fact illegal, you've
16 got something to talk about, and it certainly sends a message
17 to the next guy with the next version of DeCSS that it's a
18 whole new ball game. Now, I don't understand your argument
19 given that set of hypotheses.
20 MR. GOLD: May I address the Court for a second, your
21 Honor?
22 THE COURT: No. I'm obviously going to hear
23 everybody on this at great length, all the lawyers, before
24 this is all over, but Ms. Reider is if not the chief, one of
25 the top enforcement people for the industry. She is offered
675
1 as a witness about what the practical significance of
2 different kinds of relief in this case might be, and before I
3 hear the lawyers' argument, I would like to hear what the
4 person in charge of performing the function has to say about
5 that. That's why you brought her here, as I understand it.
6 So, Ms. Reider, you know, I would like you to answer
7 that. One of the great things about a nonjury trial is the
8 judge gets to ask questions that are bothering him.
9 THE WITNESS: Well, your Honor, in our experience
10 thus far, trying to get prosecution at least on the criminal
11 side of things for failure to comply under existing law, it's
12 very difficult without being able to show damages or qualify
13 that damage, quantify it. If you just tell people, gee, you
14 shouldn't do that, but there is no penalty for having done
15 that --
16 THE COURT: But, look, this is a criminal statute.
17 This is not a criminal case, but it's a criminal statute, it
18 says any person who violates Section 1201 or 1202 willfully
19 and for purposes of commercial advantage or private financial
20 gain can go to jail perhaps for as long as ten years.
21 Now, if the United States courts determine that
22 posting a utility like this is a crime and you hand a copy of
23 that decision to the person who is posting it, don't you think
24 there is some evidence maybe that if it doesn't come down off
25 the website it is a willful violation?
676
1 MR. COOPER: Your Honor, is that a question posed to
2 Ms. Reider from a factual standpoint?
3 THE COURT: Yes. She is making an argument that
4 without an injunction there is no effective remedy, and I want
5 to hear why.
6 THE WITNESS: Do you think I could get an AUSA or a
7 DA to take that case and enforce it?
8 THE COURT: It beats me. I mean, they haven't
9 indicted anybody in this case as far as I know.
10 Okay. Mr. Cooper, go ahead.
11 MR. COOPER: Nothing further of this witness, your
12 Honor.
13 THE COURT: Thank you. Mr. Garbus?
14 MR. GARBUS: Just one question.
15 CROSS-EXAMINATION
16 BY MR. GARBUS:
17 Q. Did you say you hadn't seen a movie on the Internet until
18 this year?
19 A. Can you repeat your question?
20 Q. When for the first time did you see a movie on the
21 Internet?
22 MR. COOPER: Objection, your Honor. It misstates the
23 testimony.
24 THE COURT: Well, it didn't purport to state any
25 testimony, so it can't misstate it.
677
1 A. Can you clarify, Mr. Garbus?
2 Q. When for the first time did you see a movie on the
3 Internet?
4 A. What type of movie, Mr. Garbus? I'm not clear on what
5 you're asking.
6 THE COURT: The question is very ambiguous.
7 Q. Any kind of movie on the Internet.
8 THE COURT: What do you mean, watched the movie?
9 MR. GARBUS: Yes.
10 A. Any kind of movie?
11 Q. Yes.
12 A. A couple of years ago.
13 Q. In 1998.
14 A. That's correct.
15 Q. And since 1998 how many movies did you watch on the
16 Internet?
17 A. I don't know.
18 Q. Were these movies that you bought to play on the Internet?
19 A. Can you play a movie on the Internet, Mr. Garbus?
20 Q. On your personal computer.
21 A. No, this is in the capacity of my job.
22 Q. Now, did you at any time learn -- let me go back to the
23 beginning of the process. As I understand it, you were given
24 at some point in time these LiViD documents which we have
25 referred to as Plaintiffs' Exhibit 9.
678
1 A. I need to see the documents that you are referring to.
2 MR. COOPER: Your Honor, I believe this is beyond the
3 scope of the direct.
4 THE COURT: Let me see where it's going.
5 Q. Do you remember when you looked at the LiViD group of
6 documents -- withdrawn.
7 At some point in time did either Mr. Jacobsen or
8 Litvak give you a group of documents which were downloaded
9 from the LiViD site?
10 A. No, they did not.
11 Q. Did you at any time go on the net to find any LiViD
12 documents?
13 A. Yes, I did.
14 Q. When was that?
15 A. As I recall, October or November of '99.
16 Q. And at whose direction was that done?
17 A. Under my own direction. I'm the supervisor of antipiracy.
18 Q. By the way, are you a lawyer?
19 A. No, I'm not.
20 Q. Now, what did you do after you downloaded those documents?
21 A. I reviewed them and turned them over to legal.
22 Q. And who was that?
23 A. Our legal department, Mark Litvak.
24 Q. To the best of your memory, was Mr. Goldstein or 2600.com
25 mentioned in any of those LiViD documents?
679
1 MR. COOPER: Objection, your Honor. Hearsay and
2 plainly beyond the scope of direct.
3 THE COURT: The hearsay objection is just wrong. Why
4 isn't it beyond the scope, Mr. Garbus?
5 MR. GARBUS: I'm trying to find out what she did.
6 She winds up saying she has a lot of information. I'm trying
7 to find out the basis for that information.
8 THE COURT: Sustained.
9 A. Can you repeat question, please?
10 THE COURT: I sustained the objection.
11 THE WITNESS: Sorry.
12 Q. Do you know what a DOD Speed Ripper is?
13 A. Yes, I do.
14 Q. Let me show you a document UP.
15 MR. COOPER: Your Honor, we object to the
16 introduction of this document.
17 THE COURT: It hasn't been offered yet.
18 MR. COOPER: It's attorney/client privilege, your
19 Honor.
20 THE COURT: Well, somebody should give me a copy of
21 the document.
22 MR. GARBUS: This is one of the --
23 THE COURT: Just give me a minute, please.
24 (Pause)
25 THE COURT: Pose your question and I will ask the
680
1 witness not to answer until I have had an opportunity to hear
2 an objection, and please pose the question in a way that
3 doesn't disclose the content of the document, Mr. Garbus.
4 BY MR. GARBUS:
5 Q. Did you learn at some time in December of the existence of
6 a utility called DOD Speed Ripper?
7 THE COURT: Answer the question, please.
8 A. I don't recall.
9 Q. Let me show you this document and see if it refreshes your
10 recollection.
11 THE COURT: Go ahead.
12 MR. COOPER: Your Honor, are you ruling on the
13 privilege issue?
14 THE COURT: So far there is nothing that, in my view,
15 implicates a privilege. She is being shown a document for the
16 purpose of refreshing her recollection as to her state of mind
17 in December.
18 MR. COOPER: It's the use of the document which is an
19 attorney/client communication, to which we object.
20 THE COURT: I understand. You said that in the first
21 place.
22 MR. COOPER: I understand that. The question is
23 whether they are entitled to use a document which is an
24 attorney/client communication.
25 THE COURT: I understand your point. To that extent,
681
1 I'm offering your point.
2 MR. COOPER: Thank you, your Honor.
3 THE COURT: What's the question, Mr. Garbus?
4 Q. Does it refresh your recollection that you were told back
5 in December of 1999 about the DOD Speed Ripper?
6 A. No, it does not.
7 Q. Did you ever see that document before?
8 A. I don't recall it.
9 Q. Do you see your name on it?
10 A. I do see me copied, but the date of the missive was during
11 a time I was not in the office.
12 Q. Did you ever see that document at any time?
13 A. I don't recall.
14 Q. When for the first time, if ever, did you hear the term
15 "DOD Speed Ripper"?
16 A. I don't recall the exact date.
17 Q. Was it in 1999?
18 A. I don't recall the date, sir.
19 Q. Did you ever go to a site to see what a DOD Speed Ripper
20 was?
21 A. I have looked at it, yes.
22 Q. And tell me when you went to that site for the first time.
23 A. I don't recall the date.
24 Q. Was it in December of 1999?
25 A. I don't recall the date, sir.
682
1 Q. Any time in the last eight month?
2 A. I don't recall the date, sir.
3 Q. Now, you said before that you worked together with the
4 F.B.I., the U.S. Customs and who else?
5 A. That I worked for?
6 Q. The MPAA works together in its antipiracy investigations,
7 you said before, with the F.B.I., U.S. Customs and who else?
8 A. Secret Service.
9 Q. Has anybody ever shown you a document that indicates one
10 particular film was taken off the Internet that had been
11 deencrypted through DeCSS?
12 THE COURT: Didn't you have a stipulation the object
13 of which was to avoid this litany with every witness?
14 MR. GARBUS: Well, I think we are trying now to get
15 into what her investigation was. She is coming to certain
16 conclusions, and you have permitted, subject to the
17 qualifications that you have made, her testifying about
18 information. I am prepared to accept that when she speculates
19 that the stuff that's on the Internet, whatever it is that she
20 sees, that she doesn't know the source of anything that's on
21 the Internet, namely, whether it comes from DeCSS, DOD Ripper.
22 THE COURT: So I understand your point. Let's make
23 this simple. You're saying, Ms. Reider, that you have seen
24 various films, decrypted films offered on the Internet, right?
25 THE WITNESS: That's correct.
683
1 THE COURT: Do you have any way of saying whether any
2 particular one of the ones you have seen offered was decrypted
3 by DeCSS as opposed to some other technology apart from
4 whatever inference you draw from the timing?
5 THE WITNESS: No, my investigations are still
6 ongoing.
7 THE COURT: Okay. You have your "no," Mr. Garbus.
8 Let's go.
9 MR. GARBUS: Thank you. You asked the question
10 better than I could have.
11 Q. Now, you also indicated that there were various -- did you
12 ever look to see whether or not 2600.com sells any pirated
13 copies of DVDs?
14 THE COURT: I take it there is no such contention in
15 this case, right, Mr. Cooper?
16 MR. COOPER: That's correct, your Honor.
17 THE COURT: Okay. Next.
18 Q. And there is no contention that they barter, sell it or
19 point to anybody who does sell it?
20 THE COURT: Mr. Cooper?
21 MR. COOPER: If the "it" is decrypted DVDs, yes, your
22 Honor.
23 THE COURT: Okay.
24 Q. Do you know what a Speed Ripper is, by the way?
25 A. I know what it alleges to be.
684
1 Q. What does it allege to be?
2 A. It alleges to decrypt DVDs. It's a DeCSS clone.
3 Q. DeCSS clone?
4 A. Um-hum.
5 Q. Do you know if DOD Speed Ripper was available before
6 DeCSS?
7 A. Not to my knowledge.
8 Q. What is the basis of that? When for the first time did
9 you know that Speed Ripper was available?
10 MR. COOPER: Asked and answered, your Honor.
11 THE COURT: Overruled.
12 A. I don't recall the date.
13 THE COURT: Okay. We will take our morning break.
14 15 minutes.
15 (Recess)
16 THE COURT: You may proceed.
17 BY MR. GARBUS:
18 Q. You said that, as I understand it, once you learned --
19 when did you learn of DeCSS for the first time?
20 A. Early to mid-October of '99.
21 Q. What did you then do after you learned it?
22 A. I pursued an investigation and downloaded it and then
23 notified our legal team.
24 Q. Now, have you ever used a DoDs Ripper?
25 A. Not all the way through.
685
1 Q. Tell me what you have done with it.
2 A. I have downloaded it and I have extracted a single VOB
3 file with it.
4 Q. And have you ever used a DOD Ripper?
5 MR. COOPER: Ambiguous.
6 THE COURT: What is the ambiguity?
7 MR. COOPER: I think it's the same question he asked
8 before.
9 THE COURT: Is there a different --
10 Q. Do you know of anything separately called the DOD Ripper
11 rather than a DoDs Ripper?
12 A. No, I don't.
13 Q. How about Power Ripper?
14 A. I have heard of it.
15 Q. Have you ever utilized it?
16 A. No, I have not.
17 Q. Have you ever heard of DOD Speed Ripper?
18 A. I was under the impression that is what we were speaking
19 about.
20 Q. In other words, to you, Power Ripper and DOD Speed Ripper
21 are the same thing?
22 A. No, your earlier question regarding DoDs Ripper was my --
23 Q. Excuse me a minute. Go ahead.
24 A. It was my impression we were discussing the DOD Speed
25 Ripper.
686
1 Q. Have you ever tried css-auth?
2 A. Yes, I have.
3 Q. And what have you done with it?
4 A. Just looked at the code.
5 Q. Have you ever tried css-cat?
6 A. Only looked at the code.
7 Q. Have you ever seen the end product, in other words, a
8 movie that is made, that has been started with the process of
9 a DOD Ripper, Power Ripper, Speed Ripper, css-auth or css-cat?
10 A. You want me to break those down?
11 Q. Sure.
12 A. I have seen the end product of movies that have been
13 decrypted.
14 Q. And have you ever issued a report, have you ever compiled
15 a report about any of your work with respect to these
16 utilities and the movies that have then been downloaded?
17 A. Not that I recall.
18 Q. With respect to your investigation of DeCSS, have you ever
19 prepared a report of that investigation?
20 A. I'm sorry. Can you repeat the question?
21 Q. With respect to any work that you did on DeCSS, Did you
22 ever prepare a report for the MPAA in any investigation you
23 did?
24 A. Not that I recall.
25 Q. Did anyone at the F.B.I. or U.S. Customs or the Secret
687
1 Service or the MPAA ever ask you to prepare any report about
2 any investigation you made concerning DeCSS?
3 A. I wouldn't be at liberty to tell you if any of those
4 federal agencies requested such a report.
5 MR. GARBUS: Your Honor, I would like to know if this
6 woman has ever prepared a report relating to DeCSS.
7 THE COURT: You can answer yes or no at least.
8 THE WITNESS: Not that I recall.
9 MR. GARBUS: We got past that pretty quickly.
10 Q. Now, Ms. Reider, you've talked about you being the chief
11 investigator at the MPAA to determine the piracy consequences
12 of DeCSS, is that right?
13 A. That is not my only function.
14 Q. Is that one of your functions?
15 A. That's one of many, yes.
16 Q. And you're telling me that you never prepared a report for
17 the MPAA concerning your investigation of DeCSS, is that
18 right?
19 A. Not that I recall.
20 Q. When you say not that you recall, just sit back for a
21 moment, take your time. Did you prepare such a report or did
22 you not?
23 MR. COOPER: Argumentative.
24 THE COURT: Overruled.
25 A. Not that I recall.
688
1 Q. Is there any document that I might conceivably show you
2 that would help you remember whether you prepared such a
3 report?
4 A. Well, if I knew that -- I don't know what you're asking.
5 Q. Is there any document that I could show you, or that
6 anybody in the world could show you, that could refresh your
7 recollection as to whether or not you ever prepared a report
8 for the MPAA concerning DeCSS?
9 MR. COOPER: Argumentative. Calls for speculation.
10 THE COURT: I'm going to allow it one more time. You
11 would think you were trying a medical malpractice case. Once
12 more.
13 A. I don't know.
14 Q. Did you ever produce a memo -- forget about the word
15 report -- for the MPAA or any other governmental agency
16 concerning DeCSS, the proliferation of it, the use of it, or
17 the consequences of the films that it would produce after that
18 DeCSS application was DivX'd?
19 A. I don't recall.
20 THE COURT: Mr. Garbus, you took her deposition,
21 right?
22 MR. GARBUS: Yes.
23 THE COURT: And I know that at least one whole box of
24 documents from her file was given to me for in camera
25 inspection on a claim of privilege that were subsequently
689
1 turned over to you.
2 Now, this is not the time to be either doing
3 discovery or whatever else this is. If you have a document,
4 let's go to it. If you don't have a document, ask something
5 else.
6 MR. GARBUS: I understand --
7 Shall we approach the bench?
8 THE COURT: No.
9 MR. GARBUS: -- that there is no such document, that
10 she never prepared a report for the MPAA. Now, we have been
11 through a series of discussions where we have asked them to
12 produce lists of documents that we were promised that we have
13 never gotten. I can go through that now, but I don't think
14 it's an appropriate time.
15 THE COURT: Neither do I. So, you're complaining
16 they didn't give you the document that she says doesn't exist.
17 Is that the net of the complaint?
18 MR. GARBUS: No. Let me just go on.
19 Q. I'd like to learn something about what your investigation
20 consisted of. After you gave the Linux document to someone at
21 the MPAA in October or November, what did you then do in the
22 course of your investigation?
23 A. I'm sorry. Which Linux documents are you referring to?
24 Q. Did you testify that you downloaded some documents in
25 October, November and December from the LiViD group?
690
1 A. I don't know. They would have to read it back to me.
2 Q. Did you download -- let's start at the beginning. Did you
3 at any time download any documents from the LiViD group in
4 1999?
5 MR. COOPER: Your Honor, Mr. Garbus already elicited
6 testimony about what the witness downloaded and I think you
7 then sustained the objection with respect to this questioning
8 regarding the LiViD group and the documents downloaded with
9 respect to it.
10 MR. GARBUS: Your Honor, I would like to get into
11 what her investigation consisted of. She has come in here
12 allegedly as a witness to give information about that
13 investigation.
14 THE COURT: One question at a time. You already
15 asked her -- you first started off from the mistaken premise
16 that Mr. Jacobsen or Litvak gave her documents from the LiViD
17 site. She said, no, that hadn't happened. You then asked her
18 whether she went onto the site, and she testified she went
19 onto the net and found LiViD documents in October or November,
20 that she downloaded, reviewed them and turned them over to
21 legal, specifically to Mark Litvak. Now, I don't know why we
22 have to do it all over again.
23 MR. GARBUS: Because she said she didn't remember
24 that.
25 THE COURT: No, she didn't.
691
1 MR. GARBUS: Let me go on, if I can.
2 Q. After you turned these documents over to Mr. Litvak, then
3 what happened?
4 MR. COOPER: Ambiguous.
5 THE COURT: Overruled.
6 A. Then what happened in respect to what?
7 Q. Your investigation. Everything is directed now towards
8 your investigation. What did do you with respect to your
9 investigation after you turned these documents over to
10 Mr. Litvak?
11 A. I continued to look for evidence of piracy.
12 Q. Tell me what you did.
13 A. In respect to what, sir?
14 Q. DeCSS.
15 A. I continued to look for sites offering DeCSS and to
16 request the issuance of cease and desist letters.
17 Q. And were you also looking for sites relevant to DOD Ripper
18 or Power Ripper or Speed Ripper?
19 A. Our investigations are ongoing.
20 Q. Were you, at that time that you were looking for DeCSS
21 sites, also looking at sites for DOD Speed Ripper, Power
22 Ripper -- and Power Ripper? Excuse me.
23 A. I don't recall a time frame.
24 Q. When did you start looking at DeCSS sites?
25 A. Early to mid-October of '99.
692
1 Q. And can you tell me to the best of your recollection
2 whether that was before or after you were looking at sites for
3 DOD Ripper, if in fact you were?
4 MR. COOPER: Objection, your Honor. I think it has
5 been asked and answered repeatedly and it's plainly beyond the
6 scope of direct.
7 THE COURT: It's certainly sustained as to form.
8 Let's start with that. Try another question.
9 Q. After you started looking at the DeCSS site, did you make
10 any notes of any site you saw?
11 A. Can you clarify "make notes"?
12 Q. Did you write anything down on a piece of paper?
13 A. I imagine we downloaded those sites that we found.
14 Q. And do you recall now which sites that you found?
15 A. Not specifically.
16 THE COURT: Isn't that precisely the carton of
17 document that was submitted to my chambers that was then
18 turned over to you, Mr. Garbus, like maybe 5,000 pages of it?
19 MR. GARBUS: I don't know if that was all the
20 documents. What Mr. Schumann testified was that he had gotten
21 a part of the documents. I'm trying to find out now what the
22 documents were that she downloaded.
23 Can we approach the bench?
24 THE COURT: No.
25 MR. GARBUS: Let me tell you where I would like to
693
1 go, and if there is an issue about it, I just don't want to go
2 there.
3 I think I'm entitled to know -- she is the only
4 witness for the MPAA thus far produced. I understand she is
5 their last witness. We have been told about this awesome
6 threat of DeCSS, and I would like to find out what the MPA has
7 done since they first learned about it, and I would like to
8 find out during the course of this investigation or this
9 discussion with her what she has done, because she is the head
10 of piracy, with respect to the other utilities that allegedly
11 cause piracy, and whether or not she or anyone can tell
12 basically, if something is on the screen, which utility it
13 comes from --
14 THE COURT: You already got that stipulation, didn't
15 you, early this morning?
16 MR. GARBUS: The last part I have.
17 THE COURT: Right.
18 MR. GARBUS: Now I would like to go to the
19 investigation. What I have said before is if they were
20 serious at all about DeCSS, that there were many, many ways
21 that they could have learned in October, November exactly who
22 had DeCSS, what was being done with respect to it, and I think
23 what they would have concluded, at least I would have
24 concluded, is that it was being used for the Linux machine and
25 that these other utilities may be appropriate "illegal copying
694
1 or piracy tools," but DeCSS, for precisely the reasons that
2 Mr. Shamos testified, is not.
3 Now, whether or not your Honor feels that makes DeCSS
4 still prohibitable by the statute is something for an
5 appropriate time, but it seems to me I'm entitled to go
6 through that with this witness.
7 THE COURT: What is on the table are questions
8 nit-picking about documents that you know full well were
9 produced to you, piles of them.
10 MR. GARBUS: Let me tell you some of the documents we
11 did not get. Shall we go through that now?
12 THE COURT: Mr. Garbus, no.
13 MR. GARBUS: May I ask my question?
14 THE COURT: You can ask a new question.
15 MR. GARBUS: Thank you.
16 Q. Now, when you say you were monitoring sites for DeCSS in
17 November of '99 --
18 THE COURT: By the way, if we do get to that subject,
19 I'm still waiting for the affidavit about your client's hard
20 drive. Just keep that in mind. Let's go on.
21 MR. GARBUS: May I have the last question asked
22 repeated to me?
23 (Record read)
24 Q. Did you ever tell anybody from October until today that
25 you had ever seen a pirated copy of a digital movie, a
695
1 specific movie?
2 A. Yes.
3 Q. And did you ever tell anybody, or write a report, or
4 furnish a document indicating that it related in any way to
5 DeCSS?
6 A. As I stated before, I don't recall any report on DeCSS.
7 Q. Putting aside report, any e-mails?
8 A. I don't recall specifics.
9 Q. What has been your training as an investigator? You
10 worked for the F.B.I. for a period of time?
11 A. That's correct.
12 Q. Were you trained there as an investigator?
13 A. That's correct.
14 Q. And did the F.B.I. have some practice with respect to
15 making reports?
16 A. Yes, they do.
17 Q. Tell me what that practice was.
18 MR. COOPER: Relevancy, your Honor.
19 THE COURT: Sustained.
20 Q. Did the training include --
21 THE COURT: Sustained.
22 Q. You indicated that -- let me ask this. When you say you
23 are monitoring websites, did you ever call any website in
24 order to determine the name, address or identification of any
25 individual who had been allegedly selling movies on any of
696
1 these file sharing sites?
2 A. Excuse me. You'll need to clarify your question. You
3 have asked about websites and FSUs all in the same sentence.
4 Q. Did you ever call anybody as part of your investigation,
5 or to your knowledge, if it's not confidential, the F.B.I.,
6 Secret Service, U.S. Customs?
7 THE COURT: The question is lost with the digression.
8 Start the question again.
9 Q. Did you ever call anybody at anybody website that had file
10 sharing to determine where the films came from?
11 A. Do you mean did I telephone anyone?
12 Q. Yes.
13 A. Not personally.
14 Q. Did you ever make any investigation with respect to any of
15 those file sharing sites as to where the films came from?
16 A. Yes, we routinely investigate.
17 Q. And what did that investigation indicate?
18 MR. COOPER: Objection, your Honor. It's not only
19 confidential, ongoing investigations. Much of the information
20 she has on this subject is privileged and it is plainly beyond
21 the scope.
22 THE COURT: Well, you better come to sidebar. Mr.
23 Garbus and Mr. Cooper.
24 (At the sidebar)
25 THE COURT: Let's deal with scope first. Mr. Garbus,
697
1 why is it within the scope?
2 MR. GARBUS: My position is that they know that DeCSS
3 is not a pirating tool. My information. And I believe that
4 they may have made an attempt to determine that and may have
5 concluded what I have just said is so. Whether or not that
6 goes to your ultimate question about whether or not the DeCSS
7 is an appropriate or inappropriate circumvention is something
8 else. But it seems to me what I am entitled to know is this.
9 There are ten different utilities that with respect
10 to, let's say, the nine others, as I understand it, they did
11 no investigation, and that basically what you are dealing with
12 is an attempt to take a product away from, let's say, the
13 Linux source group, and that I think that what the MPA was
14 doing was basically protecting the licensing arrangement and
15 that this entire investigation had little and nothing to do
16 with piracy. And I think they are aware of the fact that the
17 stuff that's up on the Internet is not DeCSS material. Not
18 only the negative of it, but that they know that it's not.
19 THE COURT: So that's why it's within the scope of
20 the direct, is that right?
21 MR. GARBUS: If you want, I will make her my witness
22 at an appropriate time, keep her in court and I'll make her my
23 witness.
24 MR. COOPER: Your Honor, my principal concern -- I
25 don't think it's necessary --
698
1 MR. GARBUS: I don't think it's within the scope of
2 the direct based on the conclusions that they drew. She is
3 the chief investigator. They put her on the stand. She comes
4 to assert conclusions. I think the facts contradict her
5 conclusions.
6 THE COURT: What conclusion?
7 MR. GARBUS: Well, I must tell you every one of the
8 conclusions is that DeCSS is a contributing factor or is one
9 of the reasons they are very concerned. One of the critical
10 parts of her testimony, as I understand it, is the spiking or
11 the enormous increase in material on the net since DeCSS first
12 comes about.
13 THE COURT: Um-hum.
14 MR. GARBUS: And I think the truth of it is you have
15 nine other utilities that lead to that spiking, and the one
16 utility that does not is DeCSS because it has a different
17 function.
18 THE COURT: You are certainly entitled to ask her
19 about the question of whether these other utilities could have
20 led to the spike. There is no question about that.
21 MR. GARBUS: Okay. And I want to know.
22 THE COURT: But I don't think that's what you have
23 been asking her.
24 MR. GARBUS: I have been trying to get the background
25 for it. I have been trying to find out her investigation. If
699
1 you are asking me to ask a conclusory question, I'm prepared
2 to do that. I wanted to know what her investigation
3 indicated. It seems to me I'm entitled to do that.
4 THE COURT: Mr. Cooper?
5 MR. COOPER: Our concern, your Honor, is that the
6 question that I think Mr. Garbus last asked her has the
7 potential for eliciting information regarding the specifics of
8 investigations of other potential actions and ongoing
9 investigations in cooperation with law enforcement.
10 I will say, for instance, that the MPAA member
11 companies are among the plaintiffs in an action filed today
12 against ScourNet, and to the extent that Mr. Garbus's question
13 is potentially going to elicit privileged information
14 regarding the investigation leading up to that action, I
15 believe we are entitled to protection from having to answer
16 that question under a variety of privileges.
17 I don't think it's necessary for Mr. Garbus's right
18 to question the witness on any relevant information she might
19 have, but I am concerned that it's privileged information and
20 information regarding ongoing investigations not be divulged
21 in connection with such a response.
22 MR. GARBUS: I am here to represent a client. My
23 understanding is that, of all of the utilities, the one that
24 is not being used for piracy is DeCSS because of the amount of
25 time it takes to do a variety of things. What is being used
700
1 for piracy are these other utilities, that the investigation
2 into DeCSS is solely related to the fact that there is a
3 competitive machine out there called Linux. That's what I'm
4 trying to get to.
5 If we can do all that with a stipulation, if we can
6 do all that -- not the last part about Linux -- but if we can
7 do it with a stipulation, I will try to craft one and I would
8 try and ask it in one question, but I was trying to get into
9 the investigation concerning it.
10 MR. COOPER: I don't even know how to respond to
11 that. The only information we have on any of those assertions
12 are from Mr. Garbus's mouth. This witness isn't able to
13 testify to that factual information because it's simply
14 nonexistent.
15 MR. GARBUS: She is the chief investigator. She may
16 contradict everything I said. She may say everything I just
17 said is wrong.
18 THE COURT: Look, Mr. Garbus is entitled to
19 cross-examine her on the subject of whether this spike in the
20 apparent availability of pirated movies on the Internet after
21 October or November is attributable to the appearance of
22 DeCSS. I think there are other ways of doing it.
23 MR. GARBUS: I could ask her one question.
24 THE COURT: We will take it one question at a time.
25 There are other ways of doing it. Let's try.
701
1 MR. GARBUS: Judge, you are an experienced trial
2 lawyer. If you can think of a better way for me to formulate
3 a question so we don't have a problem, I will do it.
4 THE COURT: I'm not getting your rate anymore to
5 formulate the questions, Mr. Garbus.
6 (In open court)
7 MR. GARBUS: You may be exagerating.
8 THE COURT: I don't think so.
9 MR. GARBUS: May I have the last question, please?
10 (Record read)
11 THE COURT: I am going to sustain the objection to
12 that question, because it's much too broad in the
13 circumstances, and it does implicate privileges. It
14 implicates legitimate confidentiality concerns beyond
15 privileges, but there is some appropriate area here that I
16 have indicated at the sidebar, and counsel can pursue it.
17 New question.
18 BY MR. GARBUS:
19 Q. Have you ever seen any documents that indicate whether or
20 not all of the films that are on these file sharing programs
21 do or do not come from Power Ripper?
22 A. No.
23 Q. Have you ever seen any documents --
24 MR. GARBUS: Judge, if you have a better way of
25 formulating the question, I will take it.
702
1 THE COURT: As I said to you, I'm not getting paid
2 the rate you are getting for formulating questions. Once upon
3 a time I was, but not anymore. That's your job.
4 MR. GARBUS: Did we get an answer?
5 THE COURT: There is not a question.
6 Q. Can you tell by looking at any of the file sharing
7 programs what percentage of the films that are described on
8 those file sharing programs come from any particular utility?
9 A. You want to know what compression was used on them or --
10 THE COURT: Let's try to make this simpler. I can't
11 resist, Mr. Garbus. I'm sorry. Think of it as pro bono.
12 I understood from a previous witness that when you
13 see a film listed on a website or an FSU that has been
14 decrypted and is available for sale or exchange, that you
15 can't tell from the listing itself what mode of decrypting the
16 film was used. Is that consistent with your understanding?
17 THE WITNESS: Yes, it is.
18 THE COURT: All right. Are there other ways that you
19 can ascertain by what means a film offered on the Internet or
20 an FSU for exchange or sale has been decrypted?
21 THE WITNESS: I don't know.
22 THE COURT: Back to you, Mr. Garbus.
23 Q. Who would know at the MPAA, if anybody?
24 A. I don't know.
25 Q. Do you know who Brad Hunt is?
703
1 A. Yes, I do.
2 Q. What is his job?
3 A. He is our chief technology officer.
4 Q. Have you ever had any discussions with him about the two
5 questions that the judge has asked you?
6 A. No, I have not.
7 Q. And who is Rick Hirsch?
8 A. He is the head of antipiracy for the IDSA.
9 Q. To your knowledge, does anyone at the MPAA have the
10 answers to the two questions that the judge posed?
11 A. I don't know.
12 Q. To your knowledge, does anybody in law enforcement have
13 the answers to the two questions the judge has posed?
14 A. I don't know.
15 THE COURT: Has anybody on the Cincinnati Reds? Come
16 on. Don't you think there is an easier way to do this, Mr.
17 Garbus?
18 MR. GARBUS: You tell me. Your questions are not
19 objectionable. Mine can be. Go ahead if your Honor wants to
20 formulate the question.
21 THE COURT: Mr. Sims has offered.
22 MR. SIMS: I will pose the question if you want, your
23 Honor.
24 THE COURT: It's Mr. Garbus's examination.
25 Q. Now, we have heard about a surge in Internet piracy, is
704
1 that right, over the last six months?
2 A. In respect to decrypted DVDs.
3 Q. Right. Can you tell whether or not that surge comes as a
4 result of the utility Power Ripper or DeCSS or DOD Ripper or
5 any other utility?
6 A. Not definitively.
7 Q. Has anyone at the MPAA ever made any investigation to
8 determine what the utility is or was being used to create that
9 surge?
10 A. I don't know.
11 Q. Have you ever made any investigation to determine which
12 utility leads to that surge?
13 A. As I stated before, it's an ongoing investigation.
14 THE COURT: Maybe we can get at it a little bit
15 better this way. If you were to download the file of a
16 decrypted movie obtained over the Internet or through an FSU,
17 are you aware of any means by which you can examine the code
18 and the data file of the download and determine through that
19 examination how the movie was decrypted?
20 THE WITNESS: I don't have that answer yet.
21 THE COURT: You don't have it yet.
22 THE WITNESS: No.
23 THE COURT: I take it the answer is that you hope to
24 find out some day, but you don't know it now, is that correct?
25 THE WITNESS: I hope to find out soon, yes.
705
1 THE COURT: All right.
2 Q. So, as of now, nobody knows the answer to my question?
3 THE COURT: As of now, Ms. Reider doesn't know the
4 answer.
5 THE WITNESS: That's correct.
6 Q. As of now, do you know if anybody in the MPAA knows the
7 answer?
8 A. I don't know.
9 Q. To your knowledge does anyone in law enforcement know the
10 answer?
11 A. I don't know.
12 Q. Now, has anyone ever said to you --
13 THE COURT: Let me ask another question, because I
14 think it may short-cut this a lot. Would I be correct in
15 assuming, Ms. Reider, that there are other investigative
16 techniques that you have and are pursuing in an effort to find
17 out by what means any movies that may be offered on the
18 Internet were decrypted, out of conventional law enforcement
19 type techniques?
20 THE WITNESS: That's correct, your Honor.
21 THE COURT: Okay. Let's go.
22 Q. What are those techniques, and what is it that you're
23 doing?
24 A. We regularly try to determine the source, the author's
25 identity, location.
706
1 MR. GARBUS: Can I hear the answer again?
2 (Record read)
3 Q. During that course of investigation, have you ever
4 determined that DeCSS was ever used to send a film over the
5 Internet?
6 THE COURT: Well, on that you already have your
7 stipulation, Mr. Garbus. They have no direct evidence that
8 that ever occurred. They are asking you to infer it from
9 other things.
10 Q. Have you ever tried to determine whether or not any --
11 from your investigation -- any of the films on the file
12 sharing programs came from DeCSS?
13 MR. COOPER: Asked and answered, your Honor.
14 THE COURT: Yes, I think it was.
15 MR. GARBUS: Your Honor, can I have five minutes?
16 Could I just have a five-minute break?
17 THE COURT: Yes, sure.
18 (Recess)
19 BY MR. GARBUS:
20 Q. During the course of your investigation, when you have
21 gone to these file sharing sites, have you ever learned that
22 the information posted on the site is false, namely, that they
23 don't have the movies that they say they have?
24 A. On occasion the download does not come through.
25 Q. And when you say "on occasion the download does not come
707
1 through," what does that mean?
2 A. There is some sort of error in the transfer.
3 Q. Do you know whether the film is on the site or it's just a
4 dud, that they say they have a film?
5 A. I don't know.
6 Q. Do you have any reports or records concerning the number
7 of duds on these file sharing sites?
8 A. Not to my knowledge.
9 Q. To your knowledge, does any law enforcement agency have
10 any information concerning the duds on these file sharing
11 sites?
12 A. I don't know.
13 MR. GARBUS: Excuse me, your Honor. We are just
14 trying to go through all these document now. It's a little
15 rough.
16 Q. This is document CO, which also has attached to it --
17 well, let me show you this first. I show you Defendants'
18 Exhibit AT?
19 MR. GARBUS: May I approach the bench?
20 THE COURT: Yes.
21 Q. And I ask you whether or not you have ever seen this
22 document before. Have you ever seen that document before?
23 A. You showed it to me at the deposition.
24 Q. Prior to the deposition had you ever seen it before?
25 A. Not that I recall.
708
1 Q. Let me show you a document entitled CO.
2 MR. COOPER: Your Honor, this is a privileged
3 document.
4 THE COURT: Mr. Knight is who?
5 MR. COOPER: Mr. Knight is one of the attorneys, a
6 former regional director for the MPAA.
7 Mr. Litvak, as you know, is counsel for the MPAA.
8 And, your Honor, I believe that this goes to efficacy and is
9 not properly within the scope of direct.
10 THE COURT: Mr. Garbus?
11 MR. GARBUS: As I said, I'm prepared to make this
12 witness -- rather than get into scope or not scope at some
13 point -- I'm willing to make her my witness as a hostile
14 witness.
15 THE COURT: And what about the rest?
16 MR. GARBUS: Can I hear the rest again?
17 THE COURT: Privilege, relevance.
18 MR. GARBUS: This is the Macrovision report.
19 THE COURT: Please do not describe what it is. There
20 is a privilege claim.
21 MR. GARBUS: I don't see why it's privileged.
22 THE COURT: You don't see it.
23 MR. GARBUS: It's a public document.
24 THE COURT: CO is a memorandum from Mr. Hunt to Mr.
25 Knight, who was just identified as an attorney. We are
709
1 laboring under some difficulty here, and I appreciate that
2 that affects everyone, because in an effort to get this case
3 to trial, you have seen probably 95 percent of the plaintiff's
4 privileged documents on a "no waiver" basis with the
5 understanding that admissibility would be determined at trial.
6 In other circumstances, a determination would have been made
7 as to privilege, and if it was determined to have been
8 privileged, you never would have seen the document in the
9 first play. So please don't announce its contents while we
10 are discussing whether there is a proper privilege claim.
11 Now, would you address the privilege claim and the
12 relevance argument.
13 MR. GARBUS: With respect to relevance, it refers to
14 the document, which I don't perceive to be privilege.
15 THE COURT: No, AT is not. But by saying this refers
16 to it, you, of course, have already disclosed part of the
17 content of CO. But let's go on.
18 MR. GARBUS: Judge, shall we do this at the bench?
19 THE COURT: I think you are fully capable of
20 discussing the relevance and the privilege issues without
21 discussing the contents.
22 MR. GARBUS: I would like to ask her whether looking
23 at that document, to which there is an objection with respect
24 to privilege, refreshes her recollection as to whether she saw
25 a document that was not privileged.
710
1 THE COURT: For that limited purpose, you may show
2 her CO.
3 MR. GARBUS: Thank you.
4 THE WITNESS: He already has.
5 THE COURT: You have already seen it, Ms. Reider?
6 THE WITNESS: He just gave it to me.
7 THE COURT: He just gave it to you. All right. Ask
8 her the question.
9 Q. Does reading that document refresh your recollection as to
10 whether or not you saw a document entitled "Macrovision"?
11 A. No, it does not.
12 Q. Did you ever have any discussion with anyone at the MPAA
13 concerning any Macrovision analysis of the DVD CSS hack.
14 A. Not that I recall.
15 Q. Were you told by anyone at the MPAA that Macrovision had
16 determined that the DeCSS hack has no commercial significance?
17 A. I don't recall.
18 Q. Were you ever told by anybody at the MPAA -- by the way,
19 do you know who Macrovision is?
20 A. Vaguely.
21 Q. Tell me who they are.
22 A. They are a company that provides content protection for
23 videotape.
24 Q. Were you ever told by anyone at the MPAA either that a
25 Merdan report or a Macrovision record had determined that the
711
1 DeCSS hack has proven to be more difficult and complicated to
2 use than the average consumer is willing to put up with?
3 A. No.
4 Q. Did you have any conversations with anyone at the MPAA
5 concerning the differences in the use of the DeCSS utility and
6 the other utilities we have talked about, the DOD Ripper, the
7 Power Ripper, the Speed Ripper, with respect to their
8 efficacy, with respect to illegal copying?
9 A. Can you read back that whole question, please?
10 (Record read)
11 A. Not that I recall.
12 Q. Did anyone at the MPAA ever tell you that DeCSS was not
13 consumer or user friendly and would not pose a problem with
14 respect to illegal copying?
15 A. Not that I recall.
16 Q. Did anybody tell you the contrary?
17 A. I don't recall.
18 Q. Did you ever see any MPAA report that said that DeCSS is
19 not a utility that is appropriate for piracy or copying?
20 A. Not that I recall.
21 Q. Do you know if the MPAA ever made a determination that
22 DeCSS is not a copying or pirating utility?
23 A. Not that I recall.
24 Q. Did they ever come up with any contrary conclusion?
25 A. I don't know.
712
1 Q. When for the first time did you learn about Linux?
2 MR. COOPER: It assumes facts not in evidence, but
3 it's beyond the scope.
4 THE COURT: Sustained as -- pardon me?
5 MR. COOPER: And irrelevant.
6 THE COURT: Sustained as to form. Rephrase it.
7 Q. You previously talked about downloading material from the
8 LiViD group site. Is that right?
9 A. That's correct.
10 Q. Prior to that time, had you ever heard of Linux?
11 A. As an operating system?
12 Q. Yes.
13 A. Yes.
14 Q. When did you hear about it for the first time?
15 A. I don't recall the date.
16 Q. Was it in 1999?
17 A. I don't recall the date.
18 Q. Did anyone at the MPAA ever tell you about Linux or did
19 you learn it on your own?
20 MR. COOPER: Your Honor, relevancy. I recognize that
21 Mr. Garbus is entitled to cross-examine the witness on proper
22 matters, but I get the impression we are engaged in a
23 filibuster.
24 MR. GARBUS: Engaged in what?
25 THE COURT: A filibuster is what he said.
713
1 Overruled for the moment.
2 A. I don't recall.
3 Q. When for the first time did you ever hear the term "LiViD
4 group"?
5 A. I don't recall having heard that specific title.
6 Q. How did you know to go to the LiViD website, download the
7 material you downloaded in October and November?
8 A. I'm an investigator. I followed a trail there.
9 Q. Tell me what the trail was.
10 A. I read about it on Slashdot.
11 Q. And, by the way, do you know or anyone at the MPAA have
12 any reason to believe that 2600.com has anything to do with
13 the surge in Internet piracy?
14 MR. COOPER: Your Honor, to the extent that Mr.
15 Garbus is asking the witness of her knowledge from attorneys
16 in connection with this lawsuit, it would be privileged.
17 THE COURT: I just don't even begin to see the
18 relevance of it.
19 Q. Take aside the question --
20 MR. GARBUS: Unless you are ruling on relevancy.
21 THE COURT: I am ruling on relevance. There has been
22 no clam here. They don't have to establish what you are
23 suggesting you were provided.
24 MR. GARBUS: It certainly goes to the question of
25 damage, doesn't it?
714
1 THE COURT: There is no damage claim in this case,
2 whatever you say in your papers. They amended their complaint
3 to delete it.
4 Q. Other than DeCSS, do you know what other ways there are to
5 copy DVDs?
6 A. Only what I have read.
7 Q. And what is it that you've read?
8 A. The drink or die Speed Ripper claims.
9 Q. Tell me what that is.
10 A. With all due respect, sir, you have been asking me about
11 the DOD Speed Ripper.
12 Q. So that's the only thing that you know of that is used to
13 decrypt DVDs other than DeCSS, is that right?
14 A. To my knowledge.
15 Q. Has anyone ever told you that any of these other utilities
16 that we have talked about can be used to decrypt DVDs?
17 MR. COOPER: Ambiguous, your Honor.
18 THE COURT: I don't think so.
19 THE WITNESS: Could you read the question back,
20 please?
21 (Record read)
22 A. Not that I recall.
23 Q. In response to Mr. Cooper's question before, you stated
24 that you tested DeCSS. Do you remember that?
25 A. That's correct.
715
1 Q. You didn't mention whether you were alone or with other
2 people. Were you alone?
3 A. No.
4 Q. Who was with you?
5 A. To the best of my recollection, Brad Hunt, Rick Hirsch and
6 Richard Kroon.
7 Q. And you have identified Brad Hunt as the chief. Rather
8 than go through it again, tell me who those three people are.
9 A. Brad Hunt is our chief technology officer, Rick Hirsch at
10 the time was director of worldwide antipiracy, and Richard
11 Kroon is a manager in our MIS department.
12 Q. What is Brad Hunt's background, to the extent you know it?
13 A. I don't know.
14 Q. Who did the actual downloading?
15 A. I did.
16 Q. And were you doing it under their supervision?
17 A. No, I was not.
18 Q. Did you then, after you downloaded it, watch a movie?
19 A. We decrypted a DVD.
20 Q. Which one?
21 A. As I recall, it was a Star Trek movie.
22 Q. Did you watch the movie?
23 A. We watched segments of it.
24 Q. How much?
25 A. In total, approximately five minutes.
716
1 Q. Is it fair to say that there is no report or memo
2 concerning that?
3 A. I can't speak for others.
4 Q. Did you ever make a report or memo concerning that?
5 A. Not that I recall.
6 Q. You said before that you hoped to have an answer soon
7 about whether a movie file reveals the decryption technique.
8 Who have you asked for this answer?
9 A. I have not yet asked anyone.
10 Q. You hope to have an answer soon, you haven't asked
11 anybody. Can you tell me whether or not anyone to your
12 knowledge is studying whether or not a movie file can
13 reveal -- that's been downloaded -- can reveal the decryption
14 technique?
15 A. I don't know.
16 Q. When do you hope to get an answer to the question you
17 didn't ask?
18 THE COURT: You think that's a proper question, Mr.
19 Garbus?
20 Q. When do you hope to learn when there will be information
21 about whether a movie file reveals a decryption technique?
22 MR. COOPER: Objection, your Honor.
23 THE COURT: Overruled.
24 A. In the near future.
25 Q. Is the near future sometime this year or next year?
717
1 A. I would say that was subjective as to what you would
2 qualify "near."
3 Q. You used the word. What do you mean by that?
4 A. Hopefully within the year.
5 Q. Now, do you know of any techniques that are being
6 developed by the movie studios or the MPAA to stop the
7 transmission of unauthorized movies over the Internet?
8 A. I have no specific knowledge.
9 Q. Does the word "digital transmission" mean anything to you?
10 MR. COOPER: Relevancy and scope, your Honor.
11 THE COURT: Sustained.
12 Q. By the way, do you in the course of your investigation use
13 informants?
14 A. Yes, I do.
15 Q. And are these informants used to determine facts for your
16 investigation?
17 A. They contribute intelligence.
18 Q. And has any of the intelligence that has been contributed
19 indicated to you that DeCSS is used in any way for any illegal
20 copying?
21 A. Yes, it does.
22 Q. Where is that found, that intelligence?
23 MR. COOPER: Your Honor --
24 Q. Is that in any documents?
25 THE COURT: What is it, Mr. Cooper?
718
1 MR. COOPER: We had an understanding with respect to
2 the specifics of investigations and, in particular, the
3 informants, at least I understood we did with opposing
4 counsel. I am just wanting to make sure that that last
5 question is limited to whether the witness has copies of
6 informing as opposed to what the details of the investigation
7 are.
8 Q. Let me make it clear, I am not interested in any
9 informants's names and I don't want to you give me any
10 informants's names.
11 Have you ever soon a document from an informant -- by
12 the way, how many informants do you use in the New York
13 office?
14 A. In the New York office?
15 Q. Yes.
16 A. There are no informants in the New York office.
17 Q. How about Washington?
18 A. Informants in the Washington office?
19 Q. How many informants does the MPAA have in the United
20 States?
21 A. I don't know.
22 Q. How many informants does the MPAA have in Encino,
23 California?
24 A. Zero in Encino, California.
25 Q. Where are the informants located? I don't want to know
719
1 cities, just general areas.
2 A. They are around the world.
3 Q. Have any of these informants ever given you a written
4 document that shows that a DeCSS film was ever on the Internet
5 or was ever sold or copied?
6 A. Not specifically.
7 Q. How much money does the MPAA spend each year in its piracy
8 efforts?
9 A. I don't know.
10 Q. How many people -- by the way, where are you located?
11 A. Encino.
12 Q. And how many people are there in your office?
13 A. Approximately 120 or so.
14 Q. And how many of those people do you supervise?
15 A. Directly?
16 Q. Yes.
17 A. Four or five.
18 Q. How many people do you supervise indirectly?
19 A. It depends on the investigation.
20 Q. With respect to the DeCSS investigation.
21 A. It depends on which site offering DeCSS.
22 Q. Is there any investigation that the MPAA is making of
23 2600.com?
24 A. To the extent we filed this lawsuit.
25 Q. Other than that?
720
1 MR. COOPER: Your Honor, I believe the witness's
2 testimony has been that after a certain point in her
3 investigation she turned it over to legal and this lawsuit
4 resulted. He is asking outside of this lawsuit?
5 MR. GARBUS: I will now go before the lawsuit.
6 Q. Prior to January 13, was there an investigation of
7 2600.com?
8 A. Under the direction of the legal department.
9 Q. And do you know when that investigation began?
10 A. I can't give you an exact date.
11 Q. Now, you say, as I understood it -- where did you get
12 DeCSS from in the first instance?
13 A. I don't recall.
14 Q. Did you say you got it off Slashdot?
15 A. No, I did not.
16 Q. Do you know why 2600.com was the only person sued in this
17 lawsuit? Is there anything that you know, as a result of any
18 conversations you had prior to January 13, why Mr. Goldstein
19 and 2600.com, along with the other two defendants, were being
20 made the subject of this suit?
21 MR. COOPER: To the extent the witness has any
22 information on this subject, it is plainly privileged.
23 THE COURT: Sustained.
24 Q. What is the budget of your department?
25 A. I don't know.
721
1 Q. What is the budget of the antipiracy department of the
2 MPAA?
3 A. I don't know.
4 THE COURT: Mr. Garbus, I have let you go on for a
5 long period of time because it is now reasonably clear to me
6 that the object of this morning's exercise, in at least some
7 part, is simply to fill up hours that you want to fill up.
8 That's my perception of it anyway. We have gotten down nearly
9 to the color of the carpet in the office and what brand of
10 coffee is in the coffee machine. I don't see the relevance of
11 any of it. If there is any, I would like to hear it now.
12 MR. GARBUS: I would like to know -- I think it's
13 relevant. The MPAA has made allegations about DeCSS as a
14 piracy tool. As I understand it, DeCSS is used primarily for
15 the Linux machine; that with respect to piracy or illegal
16 copying, that it is the other utilities that are used, and
17 that the reason that DeCSS is the subject of this lawsuit is
18 not so much related to piracy but it related to the use by
19 Linux and other open source people of DeCSS which allows it to
20 play DVDs.
21 In other words, the argument that we have been making
22 since the beginning of this case is that this is not a piracy
23 case, this is not an illegal copying case. Rather, this is a
24 monopoly case where the DVD licensees control who shall play
25 DVD hardware.
722
1 THE COURT: And would you point to the pleading that
2 you have filed that makes this a monopoly case, Mr. Garbus.
3 MR. GARBUS: My memory is it's in the answer. I
4 don't have the answer before me.
5 THE COURT: Yes. Well, I have looked at it since
6 yesterday, and it is not there. What you allege in the answer
7 is that Congress's enactment of the DMCA and the application
8 of that statute, presumably by the courts of this country,
9 violates the antitrust laws.
10 MR. GARBUS: If --
11 THE COURT: Excuse me. That is the only antitrust
12 allegation you have made in any pleading in this case. Now, I
13 suspect that you know, but in any case, I will say, that it is
14 impossible as a matter of law for the Congress of the United
15 States, by enacting a statute, or for a court of the United
16 States, by applying it, to violate the antitrust laws.
17 If there were an inconsistency between the DMCA and
18 the antitrust law, standard principles of law that have been
19 established in this country for 200 years, require the result
20 that because the Sherman Act was enacted in 1890, the Clayton
21 Act in 1914 and the Robinson-Patman Act in 1936, and the DMCA
22 in 1998, that the antitrust laws, to whatever extent they may
23 be inconsistent with the DMCA, are repealed.
24 Now, I don't see any inconsistency, and if there
25 were, it's not an issue in this lawsuit and let's just get on
723
1 with this lawsuit.
2 MR. GARBUS: I don't think it's an appropriate
3 response at this time. We have submitted briefs to you on
4 that question. I don't believe that the DMC --
5 THE COURT: What brief is that, Mr. Garbus? Could
6 you bring my attention to it, please?
7 MR. GARBUS: Yes. We have a brief where we talk
8 about Sega, Betamax and the Connectix case. I think it's the
9 reply brief, and it's my memory that in that brief we talk
10 about the holdings in those three cases, and we discuss the
11 issue of whether or not the DMCA has in effect overruled those
12 three case.
13 It is our view that it has not. And in each of those
14 three cases, as I interpret the cases, they had arguments
15 about fair use, but they also had arguments under general
16 copyright discussion about monopoly, and we have cited those
17 cases in our brief and that has been part of our argument.
18 THE COURT: I stand fully by everything I said.
19 Let's move on. And if there is any relevance to this line of
20 examination, I still haven't heard it, and it is now 12:25,
21 and I am warning you now that your time with this witness is
22 running out. And if you don't get to something relevant, I
23 will simply terminate the examination after fair warning. You
24 have had part of that warning now.
25 MR. GARBUS: I will stop examining this witness.
724
1 THE COURT: I have not terminated your examination.
2 If you wish to stop now, that's your choice.
3 Do you wish to stop now?
4 MR. GARBUS: I will ask two or three questions.
5 BY MR. GARBUS:
6 Q. When you tested DeCSS, did you apply DivX?
7 A. No.
8 Q. Have you ever applied DivX?
9 A. No, I have not.
10 Q. Do you know what DivX is?
11 A. Yes, I do.
12 MR. GARBUS: Excuse me. I have no further questions
13 at this time.
14 THE COURT: Are you through with the witness, Mr.
15 Garbus?
16 MR. GARBUS: Yes, I am.
17 THE COURT: Is there any redirect?
18 MR. COOPER: No, your Honor.
19 THE COURT: The witness is excused.
20 (Witness excused)
21 THE COURT: Your next witness, Mr. Gold?
22 MR. GOLD: As I said before, this was our last
23 witness. However, there are some disputes about documents
24 still, we hoped, would have been resolved last night, but I'm
25 told they weren't. So prior to the resolution of those
725
1 document issues, which we would like to put in on our case, we
2 are not finished with the complaint, we are prepared to
3 address them.
4 MR. SIMS: I have an informal agreement with
5 Mr. Hernstadt and Mr. Atlas that, subject to your Honor's
6 permission, we have given them last night a list of the
7 exhibits, a subset of those we had marked, that we would like
8 to move in. They can't get to their objections until either
9 tomorrow or, they said this morning, more likely Monday.
10 So I think what Mr. Gold is saying is that we would
11 like to close subject to the offering of that evidence. I
12 believe that they will agree to much of it and then that will
13 narrow the amount of argument over the remaining arguments
14 that would be made at the time that we offer that evidence.
15 THE COURT: Is that satisfactory, Mr. Garbus?
16 MR. GARBUS: I have to speak to Mr. Hernstadt. I was
17 not part of these conversations.
18 MR. ATLAS: We were provided by Mr. Sims with their
19 exhibit list this morning. I have gone through and taken some
20 notes. I have narrowed down the issues. I would agree that
21 you should keep their eyes open. To the limited extent that
22 they will submit certain exhibits and certain deposition
23 designations, that's fine with us. We will try and work those
24 issues out tomorrow and over the weekend.
25 THE COURT: Okay. Plaintiff rests subject to
726
1 deposition excerpts and exhibits.
2 MR. GOLD: Thank you, your Honor.
3 THE COURT: Mr. Garbus?
4 MR. GARBUS: We would be prepared to put on a witness
5 after lunch.
6 THE COURT: 2 o'clock.
7 (Luncheon recess)
8 (Continued on next page)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
727
1 A F T E R N O O N S E S S I O N
2 2:00 p.m.
3 THE COURT: We are missing somebody. I guess not.
4 Counsel, I gather you filed a motion in the Court of
5 Appeals yesterday to stay the trial on the ground that I
6 should not sit. Does anybody know what the status of that is?
7 MR. GARBUS: It has been denied.
8 THE COURT: It has been denied. All right. Call
9 your first witness.
10 MR. HERNSTADT: Defendants call Edward Felten.
11 MR. GOLD: Your Honor, may I make a motion with
12 respect to this witness?
13 THE COURT: Yes.
14 MR. GOLD: Your Honor, it would appear that
15 Mr. Felten is a distinguished professor of computer sciences
16 at Princeton and he has submitted one and a half page
17 declaration, six lines of which talk about what he is going to
18 testify about.
19 I would rather hand this up to you so you could see
20 the six lines for yourself.
21 THE COURT: Mr. Felten, why don't you have a seat for
22 a second anywhere you like.
23 MR. GOLD: May I approach, your Honor?
24 THE COURT: Yes.
25 MR. GOLD: This is the declaration. I'm referring to
728
1 page 2.
2 THE COURT: Okay. I have read it.
3 MR. GOLD: This is one of several cryptographers who
4 have submitted affidavits and the subject listed here I
5 respectfully submit, and as we set forth in our motion in
6 limine, have nothing to do with the charges we have made
7 against the defendant.
8 THE COURT: The very first item, the function
9 similarities and/or differences between source and object
10 code, I take it that that really is a foundation of the whole
11 case, right? I mean unless you know that, you don't know
12 anything about this case.
13 MR. HERNSTADT: Yes, your Honor.
14 MR. GOLD: The second, third and fourth, your Honor?
15 THE COURT: Well, let me hear from Mr. Hernstadt.
16 MR. HERNSTADT: About the relevance of this witness,
17 your Honor?
18 THE COURT: The relevance of items 2, 3 and 4 on this
19 statement.
20 MR. HERNSTADT: The relevance of items 2, 3 and 4 go
21 into two parts of our case, one is the First Amendment
22 argument that we make. All of this is testing, all of the
23 research that comes out of this testing is stuff that is
24 material that is published and discussed and part of a
25 discourse. DeCSS is an example of the type of program that
729
1 fits into the categories as set forth here.
2 THE COURT: That fits into?
3 MR. HERNSTADT: The categories that are set forth
4 here, 2, 3, 4. If a law is passed that permit the silencing
5 of discussion about a program because it does one thing, if
6 it's speech, then the First Amendment is violated. That's an
7 argument we have made. I think in order to understand that,
8 it is important that you understand the nature of the
9 research, the nature of the interaction, the accelerated
10 sessions. It's not just publications. It is a more
11 complicated interaction. And also, the benefit to the public
12 of the discourse, of the open public discourse.
13 MR. GOLD: Your Honor, one of the exhibits we were
14 handed during lunch, that I assume they gave us because they
15 were going to try to present in court, is a letter that a
16 bunch of scholars presented to Congress before they passed the
17 statute. I think the defendants are mistaking this for a
18 legislative body. They don't like the statute --
19 THE COURT: We know they don't like the statute.
20 MR. GOLD: Well, that's what 2, 3 and 4 --
21 THE COURT: I never met a defendant that liked the
22 statute under which they were being sued. Most drug dealers
23 have a problem with the narcotics laws. I didn't mean to
24 compare these people to drug dealers by any stretch. Perish
25 the thought. Just to illustrate the point. Most corporations
730
1 don't like the antitrust laws. Do you like that better?
2 MR. GOLD: If we get into 2, 3 and 4, you will be
3 into a lot of things I think you'll find have no relevance at
4 all.
5 THE COURT: Well, look, I'm prepared to be educated
6 to a point, and if I find that it's relevant and useful, I
7 will hear more. If the only objection here is relevance, I am
8 prepared to go a little bit of a way to find out whether I
9 think there is really something to it.
10 MR. GOLD: It's relevance, and it's the fact that
11 under the statute, on the face of the statute as we have set
12 forth, your Honor, there can be no cryptographic research
13 exception for these defendants.
14 THE COURT: No, but it is fair to say that in my
15 preliminary injunction ruling on the basis of no record at all
16 other than what you have told me, I came to the conclusion all
17 by myself that given the assumption that code has some
18 expressive content, there needs to be at some point
19 potentially a balancing with respect to constraining the
20 publication, because any constraint on the publication, given
21 the assumption, involves a First Amendment value.
22 Now, I think, therefore, that I need to hear
23 potentially evidence of this character in order to come to an
24 informed judgment about how to balance, instead of being in
25 the position that I found myself in in January, through no
731
1 fault of the plaintiffs, of basically having on the one side
2 your contention that this program did nothing but rip off your
3 product and the defendants' position that it didn't matter,
4 the First Amendment was a complete obstacle.
5 MR. GOLD: In terms of the sole purpose of the
6 product, the defense has admitted that the sole purpose was to
7 serve DeCSS.
8 THE COURT: I understand that, but there are other
9 issues here, and I am going to allow the witness to testify.
10 I'm not sure until I hear it how much of what he has to say is
11 useful, but I'm certainly going to start listening.
12 MR. GOLD: Thank you.
13 MR. HERNSTADT: Your Honor, just to make the record
14 clear, we have never submitted that the sole purpose is to
15 circumvent. We have submitted evidence that one of its
16 purposes is to decrypt. But that's not the same thing as
17 circumvent.
18 THE COURT: I know. You are a good lawyer,
19 Mr. Hernstadt.
20 MR. HERNSTADT: Thank you, sir.
21 THE COURT: It certainly doesn't serve the purpose of
22 allowing people to play Space Invaders. Okay. Let's go with
23 the witness.
24 EDWARD FELTEN,
25 called as a witness by the Defendant,
732
1 having been duly sworn, testified as follows:
2 DIRECT EXAMINATION
3 BY MR. HERNSTADT:
4 Q. Good afternoon, Professor Felten. Could you tell us what
5 your education in the area of computer science is?
6 A. Sure. My education in general, I received a bachelors
7 degree from CalTech in 1985 and in 1991, a masters degree, in
8 1993, a Ph.D. in computer science, both of those at the
9 University of Washington.
10 Q. And in the course of your studies, were you awarded any
11 honors?
12 A. Yes. My graduation from CalTech was a graduation with
13 honors, and I received an award for the -- for outstanding
14 research outside the classroom at CalTech, and when I was in
15 graduate school, I received an AT&T graduate fellowship and
16 also a Mercury 7 fellowship.
17 Q. What was the AT&T graduate fellowship?
18 A. This is a merit-based fellowship awarded by AT&T to a few
19 computer science students at top schools, and it is basically
20 a full ride through graduate school.
21 Q. After you completed graduate school, where did you go?
22 A. I joined the faculty at Princeton.
23 Q. Where are you teaching now?
24 A. Still at Princeton, the computer science department.
25 Q. What is your present position?
733
1 A. I'm an associate professor of computer science.
2 Q. What courses are you teaching?
3 A. The courses I have taught in the last few years include
4 introduction to information security, a course on computer
5 networks and distributing computing, and some special topics
6 courses related to computer security and some other topics.
7 Q. Do you know what DeCSS is?
8 A. Yes.
9 Q. Do you teach, use DeCSS in any of your classes?
10 A. Yes, I used it in my introduction to information security
11 course this last spring.
12 Q. What are your primary areas of research?
13 A. I do research in a number of areas. The main one is
14 computer security. I also do research related to operating
15 systems, to Internet software and some research related to
16 computer networks.
17 Q. Have you been given any honors or awards in connection
18 with your research?
19 A. Yes. These include some fellowships, a Sloan fellowship,
20 a National Young Investigator Award from the National Science
21 Foundation, and also some "Best Paper" awards at conferences.
22 For example, at the symposium on operating system principles
23 in 1997, which is the most prestigious conference in operating
24 systems which meets every two years, I received the "Best
25 Paper" award at that in 1997, so that indicates -- that is
734
1 said to indicate that I had written one of the two or three
2 best papers in the area of operating area research in that
3 area.
4 Q. Have you authored or coauthored a number of publications?
5 A. Yes. At least 50 articles in the scholarly -- at least 50
6 scholarly publications in the form of articles plus two books
7 and some magazine articles.
8 MR. HERNSTADT: Your Honor, may I approach the
9 witness?
10 THE COURT: Yes.
11 Q. Professor Felten, I have handed you Exhibit I believe BBP?
12 A. Yes.
13 Q. Could you identify that?
14 A. This is a declaration that I filed earlier in this case
15 and attached to it is a copy of my CV.
16 Q. Does your CV list your publications and articles?
17 A. Yes, it does.
18 MR. HERNSTADT: Your Honor, rather than spending more
19 time with that, I would move this into evidence.
20 MR. COOPER: No objection, your Honor.
21 THE COURT: Are you including within the offer the
22 attached paper on Protocol Failure Analysis in Applied
23 Cryptography Curriculum?
24 MR. HERNSTADT: Yes, your Honor.
25 THE COURT: Mr. Cooper?
735
1 MR. COOPER: Your Honor, I'm not familiar with that
2 article as having been part of the declaration. Certainly I
3 don't have a copy in what I have here from Dr. Felton's --
4 THE COURT: I will receive that part of the exhibit
5 which consists of the declaration itself and the attached CV
6 but not at this point the article.
7 MR. HERNSTADT: Very good, your Honor. Actually I
8 don't have it either.
9 MR. COOPER: I don't believe it was attached.
10 THE COURT: It sure is, stapled to the one
11 Mr. Hernstadt just handed me.
12 MR. COOPER: We have never seen it, your Honor, to
13 the best of our knowledge.
14 THE COURT: That just happened. Let's go.
15 (Defendant's Exhibit BBP received in evidence)
16 Q. Do you do any other work outside of teaching and research?
17 A. I do consulting for a number of companies and others.
18 Some of that consulting is technical consulting, advising
19 companies, particularly in the security field. I serve on
20 technical advisory boards for six or seven companies, most of
21 them start-ups in the security area, and I also do some
22 consulting related to litigation.
23 Q. Have you ever testified in a case in connection with your
24 consulting?
25 A. Yes, I testified twice in the Microsoft antitrust case in
736
1 front of Judge Jackson, and in that case, I also was deposed
2 twice and filed two declarations.
3 Q. And did the court take your testimony as an expert?
4 A. Yes. The Department of Justice designated me as an expert
5 and Microsoft did not object, so the judge accepted my
6 testimony on that basis.
7 Q. What were the subject matters of your testimony in that
8 case?
9 A. I testified in general about operating systems, web
10 browsers and Internet software. I testified specifically
11 about the Microsoft products that were at issue in that case,
12 Windows 95, Windows 98 and Internet Explorer, the relationship
13 among them. I testified about general issues relating to the
14 design of software and how software could have been designed
15 in ways other than what Microsoft did and a few other topics.
16 I should also add that I also testified about the
17 security implications of what Microsoft had done in the design
18 of their products.
19 Q. In case anyone in the room doesn't know, what was the
20 result of that case?
21 A. The --
22 MR. COOPER: Relevancy, your Honor.
23 THE COURT: Sustained.
24 Q. Are you familiar with the Linux operating system?
25 A. Yes.
737
1 THE COURT: Before we get to that, I want to ask the
2 witness one question.
3 I had another lawsuit at some point in which I
4 thought about but ultimately did not appoint a court expert in
5 a computer science area, and I remember that somebody referred
6 me to somebody at Princeton. I never engaged any "expert."
7 Was that you?
8 THE WITNESS: I don't recall ever being contacted.
9 THE COURT: I don't remember the name either.
10 MR. GARBUS: It was another one of our experts.
11 THE COURT: Okay.
12 Q. Do you use the Linux operating system?
13 THE COURT: Who was it, Mr. Garbus?
14 MR. GARBUS: I think it is Larry Peterson.
15 THE COURT: I don't remember the name.
16 MR. GARBUS: I don't think you and he ever spoke.
17 THE COURT: I think that's probably right. I think
18 there may have been an e-mail or two.
19 Go ahead.
20 Q. Do you use the Linux operating system?
21 A. Yes, I do on a regular basis. I have one in my home, in
22 my office, and I have at least two in the lab that my research
23 group uses.
24 Q. And do you also have a Windows computer?
25 A. Yes, I also have Windows computers in each of those places
738
1 as well.
2 Q. Is one of those two operating systems your preferred
3 operating system?
4 A. I think it depends what your purpose is. I think that in
5 general, Linux is faster, more stable and more flexible than
6 Windows, and so if that's what I'm after, then that's the
7 system of choice.
8 The big advantage of Windows is that it has support
9 for a lot more applications, and if you need one of those
10 applications that's not available on Linux, then I would
11 choose Windows for that reason. I think that if both
12 operating systems had equivalent sets of applications, I would
13 choose Linux.
14 Q. What programming languages do you use in your work?
15 A. A number of them. Like most computer scientists, I use
16 whatever language fits the job, and so this would include
17 languages like C, C++, Java, Pearl, NL and a number of others.
18 Q. And is there a connection between programming languages
19 and what has been referred to as case, source code and object
20 code?
21 A. Sure. Source code, I think of it as a general term
22 referring to certain kinds of computer languages. The form in
23 which the person typically writes the code directly is often
24 referred to as source code, so think of source code as being
25 one kind of computer language.
739
1 MR. HERNSTADT: Your Honor, the defense would offer
2 Professor Felten as an expert.
3 THE COURT: Just as I told the other side, it's not
4 necessary. If there is an objection to an opinion he offers,
5 we will deal with it then.
6 MR. HERNSTADT: Very good. Thank you, your Honor.
7 Q. You said earlier that one of your primary areas of
8 research is security.
9 THE COURT: Does that mean you're leaving source code
10 and object code?
11 MR. HERNSTADT: No. I'm coming back.
12 Q. What is your main focus of scholarship and teaching in the
13 area of security?
14 A. I, in my research group, do two things that I think
15 distinguish us from -- there are two ways in which we try to
16 distinguish our work. One is in focusing on the security of
17 widely used software, software that is deployed on a lot of
18 people's computers and that a lot of people are relying on.
19 The other is in trying to take a sort of holistic approach, to
20 consider the whole picture of what is involved in security at
21 a system level as opposed to focusing on the microlevel on
22 particular components.
23 Q. Does this research involve any reverse engineering?
24 A. Yes, we use reverse engineering quite a bit. One of the
25 things that we do is do detailed security studies of products
740
1 that are deployed in the field, and in doing that, one needs
2 to understand how the product works, what it does, whether the
3 things that the manual says are actually true, and so on. To
4 do that, you need to examine the software while it is running
5 in a sort of bit-by-bit fashion, and that is reverse
6 engineering.
7 Q. Does it involve encryption research as well?
8 A. Yes, many of the systems that we study involve encryption
9 and do encryption, so encryption is part of that holistic
10 picture that I talked about.
11 Q. You described taking apart programs, looking at programs
12 very precisely. Is that what is known as hacking?
13 A. We, the term "hacking" has been used in a lot of different
14 ways. Back when I started out in computer science, the term
15 "hacking" would have been almost universally applied to that.
16 In other words, hacking at one time was a term that was used
17 just to refer to playing around with computer systems, trying
18 to get them to do things, sort of analogous to tinkering if
19 you will. A person who was particularly good at that would be
20 called a hacker.
21 Then at some point in time, people who used computers
22 for criminal purposes started to call themselves hackers,
23 tried to apply that complimentary word to themselves, and the
24 press picked it up and now you hear the word used especially
25 in the public and the press in a negative way. So when I hear
741
1 someone use that word, I really have to look at the context to
2 see what they mean.
3 Q. Could you give us an example of a security research
4 project -- before you get to that, before when you were
5 talking about the work you were doing you used the word "we."
6 What did the "we" refer to?
7 A. We refers to a research group which consists of myself and
8 at various times a number of graduate students, perhaps some
9 undergraduate students, sometimes faculty colleagues get
10 involved. So what it means is really a group of people headed
11 by me.
12 Q. Could you give an example of a security research project
13 that you have worked on?
14 A. Sure. One project that we spent a number of years on
15 is -- started out with a study of the security of JAVA. Java
16 is a programming language and a system which was deployed by
17 itself and also in conjunction with web browsers, and because
18 of technical reasons, which I'll skip -- unless you really
19 want to hear them -- the security of Java was important for
20 the overall security of web browsers and, hence, the security
21 of people browsing the web, and so we started out in this
22 project by doing a detailed study of Java to try to understand
23 whether it provided the security guarantees that the vendors
24 of Java systems said it did and, if not, why not. And then we
25 moved on from there to deal with the implications of what we
742
1 had found.
2 Q. Which vendor's version of Java did you look at first?
3 A. We started out looking at the version from Sun
4 Microsystems because at the time we started, that was by far
5 the most popular version. Later on Netscape came out with
6 their own version of Java and we began to study that and
7 Microsoft came out with their own version and we began to
8 study that. For most of the project, we were looking at all
9 three implementations because those formed by far the bulk of
10 the systems that were actually deployed.
11 Q. Do researchers request the permission of a vendor in
12 advance before they start looking at a program?
13 A. No. We did not feel that we needed permission from anyone
14 to do what we were doing, and certainly we were happy to talk
15 to the vendors about what we were doing if they wanted to
16 engage us in a dialog, but we did not feel we needed their
17 permission to do it.
18 Q. Did your research reveal vulnerability in the various
19 implementations of Java?
20 A. Yes, quite a few. Over the course of about two to three
21 years, we found roughly a dozen of what I would consider
22 serious security vulnerabilities in various versions of Java.
23 Q. What did you do with the results you found?
24 A. We do a number of things. We discuss and publish the
25 results publicly. We discuss these results with the vendors
743
1 in order to help the vendors improve their products. We --
2 and we use them to feed into and motivate our research in the
3 future, and I also use them in teaching.
4 Q. Where are the results published?
5 A. They are published in a number of places and in a number
6 of different ways. Because there are a number of audiences
7 who we would like to reach and who I think are interested in
8 hearing about this, ranging from the public, the average user
9 of this technology, on up to the sort of very advanced
10 research community, so we use the method that in each case
11 makes sense for talking to that constituency.
12 For the research community, we will publish papers in
13 journals and so on, give talks at conferences. For the
14 public, we will put articles on your website, talk to the
15 press, whatever we think will help convey the information we
16 have learned to the people who need to know it.
17 Q. When you describe the vulnerabilities, do you do so in a
18 specific way, detailing what is wrong with the program?
19 A. Yes, we think it is important that the information about
20 the vulnerabilities is available to people who have an
21 interest in knowing about it. We think the public benefits
22 from that kind of discussion in a number of ways, and so in
23 each situation, we are as specific as we think we need to be
24 in order to fully inform the public in the research community.
25 Q. Do you include code sometimes when you release the
744
1 results?
2 A. Sometimes. Sometimes we do. It depends really on the
3 circumstances. It depends on what we think is necessary and
4 appropriate in order to communicate our results.
5 Q. Now, looking at the Java project, did you disclose to the
6 vendors whose products you looked at the result you found
7 before you published them to the general public?
8 A. Well, we tried in every case. We were not always able to
9 establish a communication with the vendor that was useful. In
10 at least one instance, we tried to reach the vendor, tried to
11 communicate to the vendor. What we found was we couldn't get
12 through the public relations protective screen that they put
13 up in front of their engineers. In other instances, we did
14 disclose to the vendor because we thought under the
15 circumstances that was the -- that was an effective way to
16 proceed in order to serve the public interest. But we always
17 disclosed the results of our research to the public very
18 promptly.
19 Q. Why do you do that?
20 A. Well, we think we have a responsibility to do it. Early
21 on in the process of our discovering these vulnerabilities and
22 dealing with them, I was concerned about what was the right
23 way to behave, what was the -- what was the ethical thing to
24 do in this situation. And so I went and I spoke to an
25 ethicist at the university, a philosopher who studies ethics,
745
1 and I had lunch with her a few times and tried to sort through
2 what was the right thing to do in these type of situations.
3 The one message I took away from that was our prime
4 responsibility ethically in this situation was to the public,
5 to make sure that the public had the information they needed
6 in order to make good decisions about what to do. And so my
7 belief for a number of reasons is that the public is served by
8 the disclosure of this information to all of the community
9 that I talked to, ranging from the public itself down to
10 researchers.
11 Q. Okay. What other benefits are there from publishing the
12 result of your research?
13 A. I think there are a bunch of benefits that accrue to the
14 public as a result of this. First of all, there are the more
15 direct benefits. The public, after all -- first, the public,
16 after all, is using these systems, and they -- and the public
17 is making decisions about whether to use a particular
18 technology, and I think the public benefits from making those
19 decisions based on accurate information.
20 That is, if someone is deciding whether to deploy --
21 whether to install a Java virtual machine on their computer,
22 they would benefit from knowing about the security of it. If
23 someone is deciding whether to buy a DVD player, they would
24 benefit from knowing about the security of the -- about the
25 strength of the security mechanisms installed in it.
746
1 For example, if I know that the DVD players have weak
2 security in them, I might decide that maybe I don't want to
3 buy a DVD player now, maybe some new technology with better
4 security is going to come along in a year and I will have to
5 throw my DVD player away.
6 So knowing about the security, knowing about whether
7 the security representations made by the vendors of these
8 systems is accurate, and knowing about what are the risks of
9 deploying a particular product, and understanding how things
10 are likely to play out in the future, all help the public.
11 And that comes from having accurate information about the
12 security level of the product that they are using.
13 That principle really applies to anyone who is
14 thinking about investing in a technology in any way. So it
15 might be the member of the public who is thinking about buying
16 something which is going to use that technology. It might be
17 someone who is thinking of releasing content in the DVD
18 format. It might be someone who is making a movie in the case
19 of DVDs, understanding what they are doing when they sign away
20 to someone the right to make DVDs with their work on it. It
21 might be someone who is thinking of going into a partnership
22 with a company who is using a particular technology. All of
23 these people can make better decisions and more informed
24 decisions if they actually know what are the implications of
25 the decisions they are making.
747
1 An additional benefit to the public along the same
2 lines is that over time, the public learns which products tend
3 to have problems, which companies tend to release products
4 that have problems, and they tend to develop a sense of which
5 kinds of technology are likely to have good security and which
6 are not, and that in the long run helps people understand what
7 to do. If they can see the next security problem coming, then
8 they can also make better decisions.
9 Q. Do you use the results you publish in teaching?
10 A. Yes. I believe rather strongly that in teaching students
11 about computer security, how -- to design secure systems, you
12 have to understand how systems really fail in practice, and I
13 think there is a good analogy here to the engineering of
14 buildings to stand up to earthquakes. If you are going to
15 design a building that can stand up to an earthquake and not
16 fall down, or you want to teach someone to do that, you have
17 to understand how buildings actually fall down in earthquakes,
18 which parts break and why, which of the engineering practices
19 in building the buildings tend to lead to strong buildings and
20 which don't. You have to look at that experience because
21 that's the only way you can keep your education, your
22 understanding from drifting off into theoretical irrelevance.
23 You need to understand how things actually break in practice
24 so you can avoid it in the future.
25 Q. Now, in publishing your results, have you ever published
748
1 code for a program that would exploit the vulnerabilities you
2 have discovered in your research?
3 A. Well, I make a distinction here between publishing code
4 that demonstrates the existence of a vulnerability and
5 publishing code that actually lets you harm someone. That is,
6 if you can demonstrate that a vulnerability exists, that that
7 system does not do what the people selling it say it does,
8 then that is a public good. And if you can do that without
9 providing all of the steps that someone needs to actually hurt
10 someone, then so much the better. So there is an important
11 distinction here. We do and have published code that
12 demonstrate the existence of vulnerabilities, but we have not
13 published code that takes all the steps necessary to harm
14 someone.
15 Q. Now, you mentioned before that you know what DeCSS is.
16 A. Yes.
17 Q. Could you tell us, what is DeCSS?
18 A. The DeCSS is a program that allows material on a DVD
19 encrypted with the CSS system to be decrypted essentially.
20 Q. When did you learn about DeCSS?
21 A. I learned about DeCSS -- I don't recall the exact date --
22 I would estimate it was maybe in January roughly. And I
23 learned about it from reading reports in the press and also
24 from seeing Frank Stevenson's paper about it.
25 Q. Did you examine DeCSS to understand what it did?
749
1 A. Yes. At the time I got a copy of Frank Stevenson's paper,
2 I got a copy of DeCSS, I read them both side by side to
3 understand what was going on, to verify for myself that what
4 Mr. Stevenson had said and what was reported in the press was
5 generally accurate.
6 What Mr. Stevenson said was precisely accurate. What
7 was said in the press was generally accurate. Just to
8 understand what was going on, it was another one of those
9 examples I talked about, about how systems fail.
10 Q. When you refer to Mr. Stevenson's paper, are you talking
11 about Frank Stevenson's cryptoanalysis of the CSS algorithm?
12 A. Yes, that's what I meant.
13 Q. Did you learn anything about CSS upon examining DeCSS and
14 Mr. Stevenson's paper?
15 A. Yes, I learned a number of things about it. First of all,
16 I learned about how it worked, but I also learned about the
17 level of -- relative level of security that it offered. I
18 learned about what mistakes the people designing it had made,
19 and that let me move on and think about the implications of
20 those mistakes.
21 Q. Did you identify any particular flaws?
22 A. Sure.
23 MR. COOPER: Relevancy, your Honor.
24 THE COURT: No, I understand the relevance.
25 Overruled. This does not go -- at least I'm not taking it on
750
1 the issue of robustness. Go ahead.
2 A. Okay. There are a number of mistakes that the designers
3 of CSS made, starting out with designing their own
4 cryptosystem, instead of using a standard well-established one
5 that was known to be strong. That is a common beginner's
6 mistake and something that I advise my students against.
7 Beyond designing their own cipher, using a 40-bit key
8 is also a very significant mistake. It allows the system to
9 be broken by a brute force attack. In addition to that, there
10 was a third, more technical error that the designers made that
11 Frank Stevenson describes in his paper. That allows the keys
12 to be extracted with considerably less work even than a brute
13 force search.
14 Q. Based on your experience, would you describe CSS as a
15 security system?
16 A. Yes, it's a security system in the sense that I use the
17 term. I use the term broadly meaning that it's any kind of
18 system that's intended to control or restrict the use of
19 anything, so in that sense, it is a security system.
20 Q. What does CSS protect?
21 A. What it does or what it was intended to do is to -- it was
22 really two things. First of all, it was designed to prevent a
23 CSS-encoded DVD from being played in any player which did not
24 have the CSS algorithm in it. Second, it has the effect of
25 preventing any use other than playing of the material on the
751
1 DVD.
2 Q. Did it have any -- was it designed or intended to protect
3 the material in the DVD from being copied?
4 A. It did not -- it certainly did not, nor could it have
5 prevented the encrypted content from being copied to somewhere
6 else to our disk, to another DVD.
7 THE COURT: Could you sit back about five more inches
8 from the microphone, because whether you get too close, it
9 reverberates.
10 THE WITNESS: Sure.
11 THE COURT: Thank you.
12 Q. You mentioned before that it prevents a person from having
13 access to the material on the disk. Why would a person who
14 has purchased a DVD want to have access to the material on the
15 disk?
16 MR. COOPER: Objection, your Honor. It's not
17 relevant.
18 THE COURT: Sustained.
19 MR. HERNSTADT: Your Honor, I think this goes to the
20 various exemptions and other noninfringing uses.
21 THE COURT: Maybe it does, but this gentleman is an
22 expert on computer science, not an expert on why somebody else
23 might want to have access to a DVD file.
24 MR. HERNSTADT: Very good. May I approach the
25 witness?
752
1 THE COURT: You may.
2 Q. Professor Felten, I am giving you Exhibit BBS which is the
3 declaration of Professor Appel. I would ask you to turn to
4 Exhibit B at the very back. Is that an article that you
5 coauthored with Professor Appel?
6 A. Yes, it is, it's an article the two of us coauthored which
7 we submitted to the copyright office in response to a request
8 for comments related to the copyright office's opinion
9 regarding the DMCA, and also a slightly modified version of
10 this will appear -- I should say this, along with a little bit
11 of explanatory material explaining what the DMCA is and so on,
12 will appear in the Communications of the ACM Magazine in the
13 September issue.
14 Q. What is that magazine?
15 A. Communications of the ACM is sort of the flagship magazine
16 of the ACM which is the primary professional society for
17 computer scientists. Every member of the ACM gets the
18 magazine.
19 Q. What does ACM stand for?
20 A. Association for Computing Machinery.
21 Q. What do you discuss in this article?
22 A. The article discusses the -- the article discusses a
23 number of reasons why scholars in various disciplines,
24 including computer science, would want to, and in fact need to
25 in order to do research, have access to the raw bits, the raw
753
1 text, if you will, of a copyrighted work in order to do
2 various kinds of scholarship that do not infringe copyright.
3 MR. COOPER: Your Honor, if I may. If this testimony
4 is going to proceed in this direction, it seems to me that
5 it's outside of the scope of the expertise for which this
6 witness is offered. It seems to me to address the drafting of
7 the DMCA and the desire to have access to material protected
8 by encryption rather than to the science of cryptography.
9 MR. HERNSTADT: I think this article addresses the
10 scholarly uses to which he would put a program like DeCSS, and
11 in all of its permutations, the research that he discussed
12 earlier as well as the need for access to materials, in order
13 to conduct research. I also -- it goes to an argument that we
14 have made and will continue to make that fair use is exempted
15 and protected activity by the DMCA.
16 THE COURT: The question of whether fair use is
17 exempted by the DMCA requires the reading of the words
18 Congress put on the piece of paper. It's not a matter for
19 each side to bring in witnesses to testify as to their beliefs
20 on the subject. So to that extent, I don't think it's a
21 appropriate.
22 MR. HERNSTADT: If I may, I'm not presenting
23 Professor Felten to discuss his beliefs, but, rather, examples
24 of the types of activities that he would and has in his
25 professional life undertaken.
754
1 MR. COOPER: Your Honor, it's not any of the four
2 topics for which this witness has been identified and it's
3 plainly outside of the scope for which he has been offered.
4 THE COURT: Well, what about that, counsel?
5 MR. HERNSTADT: Your Honor, this is within the scope
6 of his discussion of the relationship between -- excuse me --
7 of scholarship, the importance of disseminating and making
8 available information concerning the subject of such tests and
9 methodology and results of testing. I think that this is
10 addressing the needs of scholarship in perhaps a broader sense
11 but it is certainly within the scope of what he was to talk
12 about. The harm of scholarship that would result from not
13 being able to undertake certain practices I think is part of
14 the methodology of scholarship.
15 MR. COOPER: I don't think that's a fair
16 characterization of what he is being asked to testify about.
17 We accept that he is an appropriate witness to testify about
18 issues with respect to publishing security analyses and so on,
19 but I think this questioning goes to entirely different
20 subjects, none of which go to the question of whether the
21 defendants in this case have any potential fair use defense.
22 MR. HERNSTADT: Your Honor, I am prepared to move
23 into evidence or request to move into evidence Exhibit B of
24 the Appel declaration and allow you to make your own
25 assessment of how it fit into this.
755
1 THE COURT: I think that's the appropriate course.
2 I take it, Professor Felten, that what you said in
3 Exhibit B to Defendants' Exhibit BBS in fact represents your
4 genuinely held views, correct?
5 THE WITNESS: Yes, it does.
6 THE COURT: All right. Well I'm going to receive it
7 for whatever it's worth, but, Mr. Hernstadt --
8 MR. HERNSTADT: I'm going to move on.
9 THE COURT: Let me finish making the point. So what
10 is received is just Exhibit B to Defendants' Exhibit BBS.
11 (Defendant's Exhibit B to Exhibit BBS received in
12 evidence)
13 MR. HERNSTADT: I would request that we separate it
14 and put it in as BBS-1.
15 THE COURT: Let's deal with that later. I would like
16 to finish what I'm trying to say to you.
17 I think it is probably self-evident, or if not, close
18 to self-evident that scholars could make use of some materials
19 that might appear in digital form -- and I don't limit myself
20 to motion pictures -- if they were free to circumvent whatever
21 technological protections there might be that stand between
22 them and the digital form of the material.
23 You now have this witness's view that that is so, and
24 you have his article. I don't think you have to beat a dead
25 horse on that point. You know, it goes or doesn't go wherever
756
1 you want it to go, and eight or nine more witnesses on the
2 same point -- and I don't know whether that's what your plan
3 is -- would be a little bit cumulative. Okay?
4 MR. HERNSTADT: Thank you, your Honor.
5 THE COURT: All right.
6 BY MR. HERNSTADT:
7 Q. Professor Felten, let me move on. Professor Felten, based
8 on your experience and expertise in the area of security
9 research, do you have an opinion as to whether the disclosure
10 of the DeCSS program was good?
11 THE COURT: Sustained. Good?
12 Q. Whether there is a value, a public value to the disclosure
13 of the DeCSS program?
14 THE COURT: Sustained. I have a lot of respect,
15 based on what I've read of his CV and what I have seen here,
16 for Professor Felten. But the last time I've looked he is not
17 an expert on what the public values are and whether they are
18 expert or not, the people who make those judgments in this
19 society are called Congressmen and Senators.
20 Q. Professor Felten, do you have an opinion as to the impact
21 of the disclosure -- the impact on the CSS of the disclosure
22 of the DeCSS's program?
23 MR. COOPER: Your Honor, it's vague and I believe, if
24 I understand it, beyond the scope of the expertise of this
25 witness.
757
1 THE COURT: Look, Dr. Felten, would I be right in
2 assuming that in your judgment, the disclosure of DeCSS code
3 has been of some value to you and in your opinion others who
4 follow the same line of work as you do from a scholarly point
5 of view?
6 THE WITNESS: Yes, I think it has meaning in my
7 research and in my teaching.
8 THE COURT: Is that what you wanted, Mr. Hernstadt?
9 MR. HERNSTADT: Yes.
10 Q. Could you explain how it has helped you?
11 A. Sure, I talked about in general about the benefits to
12 research that come from a discussion of real system failures
13 and why they fail and so on, and all of that holds true for
14 DeCSS. I think it's a very instructive example for
15 researchers. It's a benchmark against which we can hold up
16 research which claims to improve practices or to improve
17 designs. We can ask would this new method really have
18 prevented this kind of problem. It has been useful to me in
19 teaching. I have used it as an exam in my course, for
20 example, as one thing students can study where they can see a
21 real failure and think about why and how it happened and think
22 about what they might do differently.
23 Q. Turning back to source code and object code, Professor
24 Felten, what is source code?
25 A. I think of source code and object code as being sort of
758
1 two ends of a spectrum. There are lot of different languages
2 in which you can express computer programs, and there are
3 different styles of languages and computer scientists argue
4 endlessly about which ones are better. There are also
5 different levels of programming, like one talks about high
6 level or low level.
7 Generally high level is referring to things which are
8 closer to the level at which people tend to write programs.
9 Low level means closer to the level at which computers execute
10 them. But I don't think there is a clean distinction
11 necessarily between source code and object code. It's kind of
12 a continuum on which all of the different forms of computer
13 languages can be placed.
14 THE COURT: Can I try it this way? This isn't the
15 first computer case I have ever dealt with, and the
16 understanding that I have always had runs something along
17 these lines, and I would like you to tell me to what extent it
18 is right and to what extent it is wrong.
19 My first proposition, computers operate in a binary
20 environment; that is, everything is a one or a zero, right?
21 THE WITNESS: Yes.
22 THE COURT: That derives from the fact that various
23 bit of silicon in the computer either have a positive
24 electrical charge or a negative electrical charge, am I right?
25 THE WITNESS: Yes.
759
1 THE COURT: So in order for a computer to understand
2 any instructions or data that a human being wishes to enter
3 into a computer, it must be received by the computer in the
4 form of a string of positive or negative charges or to put in
5 common parlance, ones or zeros, right?
6 THE WITNESS: Yes.
7 THE COURT: Object code consists of that
8 machine-readable sequence of yes/no, one/zero impulses, true?
9 THE WITNESS: Yes, that's the strict definition of
10 object code.
11 THE COURT: Okay. Now people have a hard time
12 understanding strings of ones and zeros in potentially almost
13 infinite length. So source code is a language, whichever
14 particular one it may be, that is less abstract and easier for
15 human beings to understand than a string of ones and zeros,
16 correct?
17 THE WITNESS: Yes, generally.
18 THE COURT: Okay. And whether through the process
19 known as compilation or through some other process, whatever a
20 programmer writes in source code gets transformed for the
21 computer to operate upon into object code, i.e. the string of
22 ones and zeros or positive and negative charge, true?
23 THE WITNESS: That transformation does happen but it
24 doesn't always happen in one step. There are sometimes
25 intermediate steps, intermediate languages, for example.
760
1 THE COURT: When you spoke of a continuum, there are
2 computer languages that involve modes of expression or
3 conveying information or instructions that are at one end of
4 the spectrum close to English or some other spoken or written
5 human language, and other types of languages that are much
6 farther away from spoken and written language and much closer
7 to but not quite get at the machine readable binary format?
8 THE WITNESS: Yes, that's the distinction between
9 high level and low level.
10 THE COURT: Okay. Let's go, Mr. Hernstadt.
11 BY MR. HERNSTADT:
12 Q. Okay. Judge Kaplan identified source code as less
13 abstract than object code. Is it in fact less abstract?
14 A. That's a hard question. I would say they are abstract in
15 different ways. There are certainly some things which you can
16 learn more fruit any from source code. I talked about high
17 level and low level. There are sort of high level ideas about
18 how the program is structured in general, sort of the
19 architecture of it which you can generally get more easily
20 from source code. But there are other things which you can
21 learn more easily from object code.
22 Q. Can you read object code?
23 A. Yes, it's not as easy -- it's not the easiest language to
24 read certainly. We teach students to read it and write it as
25 part of their education.
761
1 Q. Are there parts of your research where you rely on your
2 ability to read object code to get the information you need?
3 A. Yes. I should add that we do things other than read
4 object code. We also execute it and you can learn a lot by
5 doing that.
6 Q. You talked about the different programming languages. Is
7 there -- is source code and object code, are they also types
8 of languages?
9 A. Well, object code in the sense of the thing that the
10 computer directly executes it. For types of microprocessors
11 there is a single language. There are many different
12 languages that you would classify as source code or sort of
13 intermediate things. There is a huge variety of languages.
14 Q. What did you mean when you discussed source code and
15 object code being on a continuum?
16 A. What I meant is that different levels -- different
17 languages might, you might write programs that might be at
18 different levels. Some are easier to read and write, some are
19 closer to what the machine executes, and that in the creation
20 of programs, you sometimes work with languages that are at a
21 sort of intermediate level. You might translate a program
22 from the language in which you wrote it into some other
23 language, then read and modify it in that intermediate
24 language, and then translate it again into the final object
25 code. So it's not -- it's not a binary distinction between
762
1 source code and object code. It's not just it's this or that.
2 There are in between stages, in-between levels of expression.
3 Q. And based on your experience with source code and object
4 code, is it your opinion that object code is expressive?
5 A. Certainly.
6 MR. COOPER: Your Honor, in a legal sense, he plainly
7 doesn't have that experience.
8 THE COURT: I don't take it in the legal sense. I
9 obviously want to hear what he means by that.
10 A. So the way I interpret the question is can one computer
11 scientist communicate to the other by the medium of object
12 code. I think certainly the answer is yes. You can learn a
13 lot from reading and analyzing and executing object code if
14 you know how to do it, and so can you learn about what the
15 author of the code, what the person who made that code
16 intended the program to do, you can learn about how the
17 program was constructed, you can learn about aesthetic and
18 engineering decisions that the person made, and from all of
19 that, you can learn things that the person who created the
20 program put in there.
21 THE COURT: Dr. Felten, let me ask you this: Can one
22 locksmith communicate information about a lock to another by
23 providing a key to the lock?
24 THE WITNESS: I think you could -- I think in that
25 instance, you could get some information about the lock from
763
1 the key, less information than you could get by taking apart
2 the lock.
3 THE COURT: Go ahead.
4 MR. HERNSTADT: Your Honor, in fact I'm done. Thank
5 you very much, Professor Felten.
6 THE COURT: Let's take our afternoon break. 3:15.
7 (Recess)
8 THE COURT: Okay. Mr. Cooper.
9 CROSS-EXAMINATION
10 BY MR. COOPER:
11 Q. Professor Felten, now you testified that your practice in
12 the security analyses in which you have been involved has been
13 to publish an initial report regarding the flaws you
14 discovered and followed later by a more scholarly report,
15 correct?
16 A. That's right, yes.
17 Q. And on occasion, you have included in your initial reports
18 portions of source code to the extent necessary to explain
19 your analysis, correct?
20 A. That's right. That's part of informing the public, as I
21 described before. Sometimes in order to do that, you have to
22 publish code, and so that people can look at what you've done
23 so that they can evaluate whether what you are saying is true,
24 and so that they can understand the implications of the flaw
25 that you found.
764
1 Q. Am I correct that you have been personally involved in
2 approximately 12 analyses where you discovered a flaw in an
3 encryption or security system?
4 A. About 12 flaws, yes.
5 Q. Okay. And of the reports you published with respect to
6 those 12, you found it appropriate to include portions of
7 source code in your initial reports on three of those, is that
8 correct?
9 A. Yes, approximately three. Those were the cases where we
10 thought it was appropriate, where what we needed to
11 communicate was best communicated in the form of code.
12 Q. And in every one of those instances, you were able to
13 publicly and professionally discuss and demonstrate the flaws
14 without providing people with the tools to take advantage of
15 those flaws, correct?
16 A. Without providing people with all of the tools, yes.
17 Without providing people, as I said, with all of the tools for
18 actually harming someone. That's not to say that we did not
19 provide code to demonstrate the existence of security flaws,
20 which we did. I also should point out that we are talking now
21 about the initial disclosure. Later we did scholarly
22 publications and other kinds of publications and those more
23 often included code and more detailed discussion of the flaws.
24 Q. Professor, you have never included the entirety of the
25 source code of the exploitation of a flaw in any of your
765
1 publications, have you?
2 A. Exploitation in the sense of allowing someone to be
3 harmed, no; but demonstration, yes.
4 Q. But you have never included in any of your publications
5 the entirety of the source code in the exploitation outlined
6 to defeat the security system you were discussing, isn't that
7 correct?
8 A. I think I explained it as well as I could in my previous
9 answer.
10 Q. But you are not answering my question, which is you have
11 never had occasion in any of the analyses in which you have
12 been engaged to publish the entirety of the source code which
13 represented the exploitation of the flaw you were studying,
14 isn't that correct, sir?
15 MR. HERNSTADT: Objection.
16 THE COURT: Sustained. I think there is a problem
17 with the question.
18 Q. Do you know what an exploitation is in the encryption and
19 cryptology area?
20 A. It's a term I've heard. I don't understand a precise
21 definition of it.
22 Q. Do you have your own definition of that term?
23 A. It's sometimes used to refer to a demonstration.
24 Sometimes it's used to refer to what I'll call a fully
25 damaging piece of code.
766
1 Q. Okay. So let's use it in the latter instance, a fully
2 damaging piece of code. You would agree, would you not, that
3 in either source or object code form a utility that was
4 designed to actually exploit a discovered flaw in a security
5 system would fall into that latter category?
6 MR. HERNSTADT: Objection to the form of the
7 question.
8 THE COURT: Overruled.
9 A. Something that was designed to actually say reformat
10 someone's hard disk or to actually infringe someone's
11 copyright, no, I have never actually -- I would put either of
12 those in the latter category and I've never released that kind
13 of code.
14 Q. Okay. In source or object form, correct?
15 A. In source or object form, I've never released code which
16 allows someone to take all the steps needed to harm someone.
17 Q. In fact, in all of the instances in which you were
18 involved in encryption analysis, you deliberately avoided
19 providing people with the tools necessary to break the system
20 you were studying, correct?
21 A. Yes. I made -- in all these instances, I made a
22 deliberate decision not to provide all of the steps to harm
23 someone. To connect this to DeCSS, my understanding of DeCSS
24 is that it is more in the line of a demonstration as I've used
25 the term. It does not distribute code which has been -- which
767
1 has been -- I'm sorry -- not code -- it does not distribute
2 content that has been taken from a DVD.
3 Q. No, it defeats the encryption on the CSS system and that's
4 all it does, isn't that true, Professor?
5 A. What it does is it allows material to be decrypted, and
6 I'm obviously not here to talk about whether that's legal.
7 But in a sense that I understand the distinction between
8 demonstration and exploitation as you defined it, I think it
9 falls in the demonstration area, because it does not copy and
10 distribute copyrighted material.
11 Q. No, it circumvents the certain security system that's
12 intended to protect that material, doesn't it?
13 MR. HERNSTADT: Objection.
14 THE COURT: Sustained. It's argumentative.
15 Q. Professor, in your view, the distribution of a fully
16 functional set of code that allows one to break a security
17 system is unethical, correct?
18 A. I think it depends on the circumstances. As I said
19 before, you have to look at the circumstances and understand
20 what it is necessary to communicate in order to inform the
21 public, in order to inform the research community, and I can
22 imagine situations in which the only way to do that was to
23 distribute code which was a full exploitation in the sense
24 that you determined, and then I think you'd have to face a
25 sort of balancing decision. So I can't say that it would
768
1 always be unethical in my view to do that.
2 Q. Didn't you testify at your deposition to the effect that
3 you never provide a tool which lets someone take all of the
4 steps in breaking into someone's computer and doing damage as
5 a result?
6 MR. HERNSTADT: Can we have a page and line?
7 THE COURT: Come on, Mr. Cooper, follow the rules.
8 MR. COOPER: I'm referring to Exhibit AZL, page 69,
9 line 15 through 18.
10 THE COURT: Read it.
11 "Q. We did not provide, we never provided a tool
12 which let someone, which gave someone all of the steps of
13 breaking into someone's computer and doing damage."
14 A. Could you repeat the question about that passage, please.
15 "Q. But in all of the 12 instances where you were
16 the discoverer of the flaw and you were involved in one way or
17 another in the ultimate public disclosure of that flaw, in no
18 instance did you find it necessary to provide people with the
19 tool to take advantage of the flaw in order to describe it,
20 discuss it, illustrate it or analyze it, right?"
21 You did testify in that fashion, didn't you,
22 Professor?
23 MR. HERNSTADT: Objection.
24 THE COURT: I don't get it, Mr. Cooper. What you
25 just read, if I understood it, it was a question, and
769
1 witnesses don't usually testify by asking questions.
2 MR. COOPER: His answer, if I may repeat the answer:
3 "We did not provide, we never provided a tool which let
4 someone, which gave someone all of the steps of breaking into
5 someone's computer and doing damage."
6 THE COURT: Answer?
7 MR. COOPER: That was the answer.
8 THE COURT: That was the answer. Okay. Got it.
9 Q. Next question:
10 "Q. And you, you deliberately avoided doing that, isn't
11 that true?
12 "A. That's correct."
13 THE COURT: Next question, counselor.
14 Q. You were also able to teach and discuss security flaws in
15 your classroom with your students regarding CSS without at any
16 time operating DeCSS as an executable utility, isn't that
17 correct?
18 A. Yes. In order to do the teaching that I did in that
19 course, I did not execute DeCSS as an executable utility.
20 Again that's not to say that in general one would never need
21 to execute something in order to teach about it, but given
22 what I decided to teach those students in that limited time
23 about, I did not need to do that.
24 Q. It wasn't necessary for you to use the executable utility
25 in order to discuss what you chose to discuss regarding those
770
1 flaws, correct?
2 A. I didn't use the software in the classroom in the sense of
3 executing it. What I did was I got DeCSS and I got Frank
4 Stevenson's paper, I read them myself, I understood the
5 situation, and based on my access to those materials and my
6 understanding, I was able to teach the students about CSS and
7 DeCSS.
8 I informed the students that this code was available
9 on the network and I informed them that if they wanted to
10 study it, they could study it. I don't know what they did as
11 a result of that. Certainly, as with everything in my course,
12 it was obviously not okay for the students to infringe
13 copyright, but I would not be at all surprised if some of the
14 students chose to do that kind of investigation themselves
15 based on my telling them that the code was available.
16 Q. Now, it's possible for you in your work to communicate
17 with other interested parties in your field regarding subjects
18 that you are researching and to maintain an ongoing dialog
19 with those parties through other means than posting material
20 to the public Internet, isn't that correct?
21 A. It is true that once I know about someone and once we have
22 established a sort of relationship, I can communicate with
23 them by e-mail. But as I discussed before, it's not the case
24 that there is a small community of people, all of whom know
25 each other, who are interested in this material and who are
771
1 doing research on it the way that the people working in this
2 field discover each other is to read each other's
3 publications. That's the way science works. You publish
4 openly and many people who you know read what you publish.
5 Some people you don't know read it. The only way to reach
6 that audience, the only way to find those other people out
7 there working on that topic is to publish in such a way that
8 they can read it.
9 And can I certainly tell you that I read my
10 colleagues', at other universities and companies, I read their
11 website to learn what they're up to.
12 Q. And if you have a particular interest in any of the areas
13 in which they are involved, you communicate with them directly
14 to get further information, correct?
15 A. In general, yes, but I don't know that it would be
16 fruitful to ask someone about something until I have seen what
17 is on their website.
18 And I should add I may be in an unusual position. If
19 this is a person I know and I send them some question, some
20 comment on their research, they are likely to take it
21 seriously, read it, and give me an answer. But if it's
22 someone who doesn't know me, they are going to -- they are
23 going to -- if it's someone who doesn't know me, and I want to
24 comment on their work, they are not necessarily going to be
25 willing to spend an afternoon on the phone with me explaining
772
1 their work. The reason that stuff is put out there on the web
2 is to be read. It's to be read by a lot of people, and I
3 frankly don't want to have to explain to everyone who asks
4 over the phone or by e-mail all of the details of the research
5 that I've done. It's not efficient. It doesn't make sense.
6 MR. COOPER: I don't have any further questions at
7 this point, your Honor.
8 THE COURT: All right. I have one, I guess two.
9 You've got networks at Princeton?
10 THE WITNESS: That's correct.
11 THE COURT: You've got networks for the faculty in
12 the academic buildings, and then is there a separate one for
13 the dormitories?
14 THE WITNESS: Yes, there is are networks in the
15 dorms.
16 THE COURT: What are the speeds?
17 THE WITNESS: The dorm networks are generally ten
18 megabits per second to each desktop. In the computer science
19 department, I can speak to what our network is for the
20 researchers. We generally have within the building 100
21 megabit per second links. Of course there are links between
22 the buildings and links between the university and the outside
23 world which have to be shared among all those people. So, for
24 example, in the computer science building from point A to
25 point B in the building we might have 10 megabits per second
773
1 on a really good day, but there is a link going from the
2 computer science department to the outside world which has to
3 be shared with everybody else in the building.
4 THE COURT: What is the speed of that?
5 THE WITNESS: I don't recall. I better not guess.
6 THE COURT: Okay.
7 THE WITNESS: If that's helpful, my colleague,
8 Professor Peterson is going to testify later. He knows all
9 this stuff much better than I do.
10 THE COURT: You were last at the University of
11 Washington how long ago?
12 THE WITNESS: 1993.
13 THE COURT: I guess any questions about the speed of
14 their network seven years ago is kind of like asking about
15 dinosaurs, right?
16 THE WITNESS: Well, seven years ago what we had in
17 our research building was 10 megabits per second inside the
18 building.
19 THE COURT: You are familiar with speeds at any other
20 universities in the last year per se?
21 THE WITNESS: Not particularly any other university.
22 I know generally what the technologies that are used, but I
23 can't speak to any specifically to any other university.
24 THE COURT: Generally.
25 THE WITNESS: Generally the technology within a
774
1 building is going to be either 10 megabits per second or 100
2 megabits per second on the ethernet. That's the most commonly
3 used technology.
4 THE COURT: Okay. Thank you.
5 Any further examination Mr. Hernstadt?
6 MR. HERNSTADT: No, your Honor, thank you very much.
7 THE COURT: Okay. The witness is excused. Thank
8 you.
9 THE WITNESS: Thank you.
10 (Witness excused)
11 THE COURT: Next witness, please.
12 MR. HERNSTADT: Our next witness is Mr. Goldstein.
13 ERIC CORLEY,
14 a defendant herein, having been duly sworn,
15 testified as follows:
16 DEPUTY CLERK: Please state your name for the record.
17 THE WITNESS: My pen name is Emanuel Goldstein.
18 My given name is Eric Corley.
19 THE COURT: What is it?
20 THE WITNESS: My pen name, writing name.
21 THE COURT: So the record is going to reflect, Steve,
22 that the witness's name is Eric Corley, which is the name he
23 is captioned under.
24 DIRECT EXAMINATION
25 BY MR. GARBUS:
775
1 Q. Mr. Corley, tell me something about your background.
2 A. I'm an English major. I graduated from the State
3 University of New York in 1982. I have worked --
4 MR. GARBUS: Excuse me. Can we have a small bench
5 conference just for a moment?
6 THE COURT: Yes. You and Mr. Gold. Is this your
7 witness, Mr. Gold?
8 MR. GOLD: Yes, sir.
9 (At the sidebar)
10 MR. GARBUS: Mr. Corley has, as I understand it, an
11 arrest when he was a child as a juvenile which was dismissed,
12 an ACD case, I have never been able to find the file of it.
13 He testified to it at some length because I permitted it at
14 deposition, but I would make a motion that that be excluded at
15 this time. I don't know whether Mr. Gold intended to get into
16 it or not.
17 MR. GOLD: In the deposition there was testimony
18 about -- I think it was an indictment, was it not? I think
19 so.
20 MR. GARBUS: I don't know what it was.
21 MR. GOLD: I did not get the impression that he was a
22 youthful offender or he was below 18, but the nature of the
23 offense I think is one that reflects --
24 THE COURT: Let me just find out something. Do you
25 propose to use this?
776
1 MR. GOLD: On cross, yes, but there was a
2 confidentiality agreement and I --
3 THE COURT: What in particular do you propose to use
4 on cross? Was there a conviction?
5 MR. GARBUS: Do you have a record of a conviction?
6 MR. GOLD: I think there was a plea, wasn't there?
7 MR. GARBUS: As I understand it, he was treated as a
8 youthful offender and it was an ACD, it was an adjournment in
9 contemplation of dismissal and there is no criminal record.
10 THE COURT: Is there a conviction?
11 MR. GOLD: I think there was a plea, your Honor, and
12 I would have to check the transcript. If you give me two
13 minutes. But it was for breaking into a company computer
14 system, and I think it has relevance.
15 THE COURT: How long ago is it?
16 MR. GOLD: I don't remember.
17 MR. GARBUS: It was back -- he was I think about in
18 his early 20s.
19 THE COURT: How old is he now?
20 MR. GARBUS: I think he is in his mid 40s. I don't
21 remember exactly. I would have to ask him.
22 THE COURT: He is obviously going to be on the stand
23 more than the next hour, right?
24 MR. GARBUS: I think so.
25 THE COURT: Well, you guys figure out what the facts
777
1 are tonight. Rule 609 governs this as to the conviction, and
2 if memory serves, Rule 608 deals with the prior bad act issue.
3 This is not terra incognita.
4 MR. GARBUS: Can I hear the last question, please.
5 (Record read)
6 A. I will just take it from the top. I graduated from the
7 State University of New York at Stonybrook 1982 with a
8 Bachelors of Arts in English. I have worked in various
9 newspapers, including campus newspapers, community newspapers.
10 I have written numerous opinion pieces and other such articles
11 for newspapers such as Newsday, and since 1984, I have been
12 publishing 2600 Magazine. I have worked in radio since going
13 to the State University of Stonybrook since 1977, and I
14 currently work for WBAI in New York.
15 Q. How old are you?
16 A. I'm 40.
17 Q. Did you work for the Stonybrook Press?
18 A. Yes, that was one of the newspapers I worked for, one of
19 the campus newspapers.
20 Q. And have you ever been a broadcast journalist on WUSB?
21 A. Yes, WUSB is the university station at the State
22 University at Stonybrook.
23 Q. And how long have you been publishing the Hacker
24 Quarterly?
25 A. Since 1984, which I guess is 16 years.
778
1 Q. And do you know approximately the circulation of that?
2 A. Presently, including newsstands and subscribers together,
3 I would say probably about 60 to 65,000.
4 Q. And do you have any sense of who your readers are?
5 A. From meeting them at various gatherings, 2600 meetings,
6 conferences, I would say they are all kinds of different
7 people from 12 year olds to CIA agents, to foreign
8 intelligence to corporate executives, all kinds of people seem
9 to be fascinated with this.
10 Q. Now, did you serve as the music director for WUSB?
11 A. Yes, in 1980 to '81 school year, I was music director.
12 The year after that, I was program director of the radio
13 station.
14 Q. And in 1984, did you organize a Convention of alternative
15 presidential candidates in Stonybrook?
16 A. That's correct. We invited everybody who had registered
17 to run for president to gather in one place at the same time.
18 There were something like 219 candidates and about two dozen
19 of them accepted.
20 Q. Did you ever write a play?
21 A. I have written -- among the things that were publicly, no.
22 I have written a lot of things that haven't been released.
23 But the one major thing that was publicly released was a radio
24 play called Shadow of Long Island.
25 Q. What did it deal with?
779
1 A. It was kind of an H.G. Wells type of a thing where in
2 realtime, people dealt with the effects of an accident at a
3 nuclear power plant and since at the time, I believe it was
4 1985, that was a big controversy on Long Island, it was
5 something that got a lot of attention, a lot of interest.
6 Q. And with respect to the Hacker Quarterly, why did you
7 create it?
8 A. Well, I saw the need for information to be spread beyond
9 computer nerds, people who are just simply calling into
10 bulletin boards. Back in 1984, which is when the magazine
11 actually started, in order to take part in this kind of a
12 thing, you would have to call what is known as a BBS system,
13 and they could only handle one caller at a time which means
14 many times you would spend the better part of a day just
15 waiting for a busy signal to go away. You would have to keep
16 trying. There was no repeat dialing function. You would have
17 to keep dialing over and over again, and the speed was very
18 slow, something like 300 baud.
19 So I thought it would be nice, because these people
20 had so much to say, if there is way a forum for them to say it
21 and actually read it on paper, and since nobody else was doing
22 that, I figured why not.
23 Q. And has the Hacker Quarterly been quoted or featured in
24 any other newspapers?
25 A. Yes, we have been quoted quite a bit.
780
1 Q. Where?
2 A. I couldn't even begin to tell you all the places. Every
3 major newspaper and magazine I could think of, Time, Newsweek,
4 the New York Times, Wall Street Journal. I'm sure we are in
5 quite a few this week. We are always being quoted for our
6 opinion on various things that are happening in the world of
7 technology, whether it be things like the Melissa Virus, a
8 case like this, a conference like we've just had. There is
9 always something going on in the world of technology, and our
10 view seems to be something that's of interest.
11 Q. You say a conference you just had. Can you tell me what
12 that was?
13 A. We just had a conference this past weekend uptown at the
14 Hotel Pennsylvania where we had people gathering from all over
15 the planet to talk about the newest technological issues an
16 just basically to trade information, learn, and I think it was
17 a big success, we had something like 2300 people show up.
18 Q. This was run which by the hackers? This was sponsored by
19 2600 --
20 A. Yes.
21 Q. Have you also been on a major broadcast and cable network?
22 A. Yes.
23 Q. Do you remember which ones?
24 A. All of them I think. Basically I was on Good Morning
25 America, Nightline, CBS Morning News, Charlie Rose. I can
781
1 keep going on with lists, but I think most of them I seem to
2 have been on at one point or another.
3 Q. Do you recall what the Washington Post, back in February
4 of 2000, said about you after were you sued in this case?
5 A. I think they referred to us as, I might be confusing it
6 with another story, but I think they referred to us as the
7 hacker's bible or something, along those lines.
8 THE COURT: I hope we are not going to get into an
9 assortment of what various people have said about the
10 defendant, since he has been sued in this case.
11 MR. GARBUS: We are past it. I don't think so.
12 Q. And how long have you been at BAI?
13 A. I first walked into WBAI in 1988 and I haven't left since.
14 Q. When you were on these various television shows, Charlie
15 Rose and cable, what was the subject of your discussion?
16 A. Like with the newspaper articles, different things
17 depending on what was happening in the news that particular
18 time, such as the Michelangelo Virus which was in the early
19 90s, or some panic over some possible security hole in a
20 computer system, or even something like an area code change
21 can, for some reason -- people come to us for explanations on
22 things like that. So depending on what was in the news at
23 that time, we get calls virtually every day from media people
24 wanting us to comment on one thing or another, and depending
25 on my schedule, I try to answer as best I can.
782
1 Q. Is it fair to say that you are called on those shows as an
2 expert in the computer area and the technology areas?
3 A. That's what they call me. I don't consider myself a
4 computer expert. I consider myself a journalist. But they --
5 I've never taken a computer course or anything like that. I
6 majored in English, so I answer the questions as best I can,
7 but there are people with infinite amounts of knowledge in the
8 technical field beyond what I could imagine.
9 Q. When you posted DeCSS, did you know whether it would work
10 or not?
11 A. No, I had no idea if it would work. The reason we posted
12 the source code and the accompanying story is because it was
13 already a story. I believe it had already been out a month at
14 that point, and we saw this and the reaction to it, people
15 having their websites shut down, their pro Internet service
16 providers being threatened, their schools being threatened, we
17 saw that as a fascinating story, and we printed that story, we
18 printed what the story was about, which was our source, our
19 primary source, here is what they are talking about, here is
20 the source code.
21 Honestly, if someone had given me 20 random numbers
22 and said this is the program, we would have printed the 20
23 random numbers, if that's what everybody was talking about. I
24 have no knowledge if the program worked or not, but that
25 wasn't the story. The story was the reaction it was causing.
783
1 Q. And as of today, do you know whether DeCSS works?
2 A. I have heard conflicting things, even in this courtroom.
3 I don't know anybody myself who has gotten it to work, and I
4 don't know very many people who have even tried to get it to
5 work. I believe it can work if you spend a lot of time on it,
6 but I'm sure there are much easier ways to accomplish bad
7 things, if that's what you're trying to do.
8 MR. GOLD: Your Honor, I move to strike the answer.
9 It was full of speculation and he is not an expert witness as
10 he admits.
11 THE COURT: Strike everything after "I've heard
12 conflicting things."
13 Q. Now, have you ever sold a copy of a DVD disk that has been
14 de-encrypted through DeCSS?
15 A. No.
16 Q. Have you ever sent out a movie on the Internet as a result
17 of your having used DeCSS?
18 A. No.
19 Q. Now, you talked about working on WBAI. How long have you
20 been there?
21 A. Since 1988.
22 Q. And is the name of that program "Off the Hook?"
23 A. I started doing the program later that year in 1988 as a
24 special broadcast. It became a series in 1991, I believe. I
25 have also worked in the news department and as an engineer
784
1 over there.
2 Q. What does that program deal with?
3 A. It pretty much deals with similar things that the magazine
4 deals with, new developments in technology, security holes,
5 Orwellian aspects of today's society, people's privacy being
6 abused from all different angles. And what I like to do with
7 the program is reach people who have absolutely no background
8 in technology as opposed to the magazine. When I go on the
9 radio, anybody could be listening, and I find that many people
10 find it very fascinating to be hearing our perspective, and we
11 believe in explaining things to whoever will listen. So
12 people call into the radio show, we explain exactly what we're
13 talking about, sometimes they feel moved to come to one of our
14 meetings, which are once a month, and we make friends that
15 way. We explain how technology works from our perspective.
16 THE COURT: When you say you worked at WBAI as an
17 engineer, did you work there as a broadcast engineer who ran a
18 panel or some sort or some other kind of engineer?
19 THE WITNESS: A broadcast engineer, someone who
20 actually controls the board in the control room.
21 THE COURT: Thank you. Go ahead, Mr. Garbus.
22 Q. Now, have you participated in any panel discussions on
23 computers and the Internet-related issues?
24 A. Yes, numerous ones over the years.
25 Q. Tell me some of them.
785
1 A. There are the annual computer freedom and privacy
2 conferences. There was one I believe called Open Source
3 Solutions in Washington D.C. There was -- I don't recall the
4 names of the ones overseas that I attended. I know there was
5 one in Amsterdam and a couple of them in London as well.
6 Q. Have you also been on NPR, All Things Considered and World
7 News Now?
8 A. Yes, I have.
9 Q. Have you ever lectured at any university?
10 A. I have been a guest, a guest lecturer for various classes
11 at New York University, Seton Hall, the State University of
12 New York at Stonybrook.
13 Q. Have you ever testified before any committee of the House
14 of Representatives?
15 A. Yes, I testified before the house committee on technology
16 and finance, I believe, and that was in the early to mid 90s.
17 I don't have an exact date.
18 Q. Other than the conference you just mentioned before, have
19 you organized any other conferences?
20 A. Yes, that was our third conference. The first one was in
21 1994. The second one was in 1997.
22 Q. And can you tell me the title of the first one?
23 A. The title of the first one was called HOPE. That stood
24 for Hackers On Planet Earth, and we had -- it was the first
25 time ever that this country actually a conference like that
786
1 had been organized. I had drawn inspiration from some of the
2 conferences I had seen in Europe where people gathered
3 together and exchanged ideas in a free and open manner and
4 learned from each other and were guided in positive ways, at
5 least in my view, and in 1994, I thought it was a great
6 success as far as that went, and then it takes time to
7 organize these thing so we only do it every three years.
8 Q. And what was the second one?
9 A. The second one was a sequel to HOPE and we called it
10 Beyond HOPE and basically it was a continuation, the same kind
11 of a thing. We like to stress international cooperation. We
12 have people come over from different parts of the world and
13 tell us what is your phone system like, what do you dial to
14 make things work and connect to various things, how does your
15 billing system work, do they -- in what ways does the phone
16 company do evil things to you, you know, various things like
17 that as far as technology and privacy invasion and things that
18 we find ordinary people are concerned with increasingly today.
19 So, we just basically get these people together, trade
20 information, invite the public.
21 Q. And the sponsors of both of these conferences and the
22 third conference was 2600?
23 A. Yes, that's right.
24 Q. Where did you get 2600 from?
25 A. 2600 was a frequency that was used a long time ago back in
787
1 the 1960s and basically anyone who would transmit a 2600 hertz
2 tone over a long distance trunk connection would find
3 themselves put into what is known as operator mode where they
4 could then explore the entire phone system, and basically
5 route themselves to operators, to all kinds of mysterious
6 things that were out there. It doesn't work anymore, but it's
7 kind of a mystical thing from the past that people still talk
8 about.
9 Q. And your pen name, Emanuel Goldstein, where does that come
10 from?
11 A. Emanuel Goldstein was a character in 1984, the book by
12 George Orwell. He was supposedly the leader of the
13 underground, and it was kind of a cool name to take back in
14 the mid 80s, although I should point out in the end of the
15 book, it turned out he is actually a figment of the government
16 and he is entrapping everybody. That's another story.
17 Q. Did you take the name before you finished the book or
18 after you finished the book?
19 A. Actually I read the book about four times when I took the
20 name.
21 Q. Now, tell me some of the people who have spoken at the
22 conferences that you have organized?
23 A. We have had people like ex-CIA Agent Robert Steele,
24 cryptologist Bruce Snyder. At the most recent conference, we
25 had Jon Johansen who is here from Norway. We have had many,
788
1 many people. My mind is kind of drawing a blank when I try to
2 call them all up, but we have had journalists, people from
3 major television networks talk about how they cover stories
4 and how they might get misperceptions about what hackers are
5 all about.
6 And we try and bring these people together, whether
7 they are representatives of the government, people from
8 different countries, 12-year-old kids who are just learning
9 something, we try to bring them all together in the same room
10 so they can share information and bring something out of that,
11 and we find that many relationships are forged from this that
12 last for very long time.
13 Q. You mentioned Bruce Snyder. Can you tell me who he is?
14 A. He is an encryption expert. He has written several books.
15 Unfortunately he wasn't at the most recent conference. He was
16 here in 1997. And I understand his knowledge could fill a
17 room as far as what encryption is all about.
18 Q. Have you seen his affidavit in this case?
19 THE COURT: At what level of compression?
20 THE WITNESS: Any level I think.
21 A. He is one of those people that I'm in awe of, and many of
22 the people who come to the conferences are like gods to me.
23 They are people that just have so much knowledge and have done
24 so much, and I'm just -- I'm honored that they come to my
25 conference and share their information.
789
1 THE COURT: Mr. Garbus, I think we would save time if
2 we didn't just have testimonials to one's witnesses. I can
3 imagine the rebuttal case.
4 Q. Now, have you also written freelance pieces for magazines?
5 A. Yes, I have written pieces occasionally for local
6 newspapers, the New York Times, Newsday, and a couple of
7 foreign magazines as well. I wrote something for a Japanese
8 magazine a few years ago, something for magazines in England
9 and Holland, I believe as well.
10 Q. Now, do you in your magazine tell your readers about the
11 acts that -- the Hackers Act and the consequences of those
12 acts?
13 A. I'm sorry. I don't understand the question.
14 Q. In other words, in the Hacker Quarterly, do you tell your
15 readers the kinds of things they should and shouldn't do?
16 A. Well, we try not to be too moralistic. What we mostly do
17 is print information. We have an editorial at the beginning
18 of every issue where we expound on various thoughts, which is
19 something that I write, and also in the replies to letters in
20 the magazine, which is also printed every issue. If we give
21 any kind of moral guidance or judgment, that's where it is,
22 but in the actual articles themselves, it is more or less a
23 compilation of material that is already out there, and we kind
24 of present it to the people to show them this is what people
25 are saying, this is the information that's out there, this is
790
1 how systems supposedly work or don't work. And people write
2 in with corrections, they write in with additions, and we have
3 a dialog going based on that.
4 Q. Now does the name Mark Trapenhagen mean anything to you?
5 A. Not offhand.
6 Q. When did you start to put up the website?
7 A. Our website I believe first went up in 1995.
8 Q. Tell me about that. Why did you put it up?
9 A. Well, back in 1995, websites were just pretty much
10 starting to become popular, and we figured, you know, we are a
11 computer magazine, we really should be doing this. We had
12 just had our first conference the year before, so we had
13 enough money lying around so we could buy a machine and put it
14 up on the net. It was an extremely slow connection, but we
15 realized quickly that a lot of people came to our site to see
16 what we had to say. So we did our best to make it
17 interesting.
18 Q. Now, can you tell me at the present time how many hits
19 that site receives, how many unique visits?
20 A. Well, I can only estimate because we haven't kept logs
21 since last summer on that kind of a thing. We have what is
22 known as a counter on the front page and what we would do is
23 run statistics on it once a week, and that would take such
24 massive amount of memory that it would wind up crashing the
25 machine every Sunday night at midnight.
791
1 So we figured it wasn't that important to know
2 exactly how many people were hitting us. We had a general
3 sense that we had something on the order of 10,000 unique hits
4 a day. That means 10,000 different visitors coming to our
5 site, maybe seeing a few different pages but only being
6 counted once.
7 Q. Now at some point in time, there was an order entered by
8 this Court that you take down the DeCSS code. Do you recall
9 that?
10 A. Yes, I do.
11 Q. Prior to that time, did you print source and object code?
12 A. Of the DeCSS?
13 Q. Yes.
14 A. Yes.
15 Q. And when the Court ordered you to take it down, did you
16 take it down?
17 A. Yes, we did.
18 Q. And after you took it down, did you continue to have links
19 to other site?
20 A. Yes, the links remained up.
21 Q. And did you increase -- were the number of links increased
22 after the court order?
23 A. We had a large number of people submit new links and we
24 tried to keep up with it, but after a while it just became too
25 much and we just kind of left it in whatever state it was in
792
1 at that time.
2 Q. Whether you say submit new links, what do you mean by
3 that?
4 A. Well, we had a facility for people to tell us if they knew
5 other sites or if they were running a site and they wanted to
6 be included on the list, we had that on our main page, and
7 people were submitting that from the very beginning, ever
8 since it first went on line I think back in November or
9 December, and after we took the material off of our website,
10 it increased 20-fold at least and we just didn't have the
11 resources to continuously update things like that, and we felt
12 pretty much if people wanted to find DeCSS, they could easily
13 do it. It wasn't an issue anymore.
14 Q. Now, by the way, do you own some domain names?
15 A. I own quite a few domain names, yes.
16 Q. What are some of those names?
17 A. Well, gee, all the 2600 possibilities, .net, .org, .com.
18 I also own the WUSB site. I maintain their web page. And
19 there are also some rather humorous ones with some nasty
20 language in it, and I should explain why that is. NSI is the
21 registrar, Network Solutions Incorporated and up until last
22 summer, they were the only registrar in this country. You had
23 to submit your domain names through them. They had a policy
24 on language. They wouldn't allow certain words to be used as
25 domain names and some people objected to that, they thought it
793
1 was a form of censorship, but what was interesting was late
2 last summer, all of a sudden, there were new registrars. It
3 was opened up to all different companies, and many of those
4 company allowed you to register whatever name you wanted to.
5 So there was kind of a race for about two days, people
6 registering every possible four-letter word they could think
7 of, and I admit I was part of that race, because I basically
8 thought it was kind of interesting. But we never tied it into
9 the magazine in any way. That was more a personal hobby for
10 me.
11 Q. Can you give us some of the domain names, because they
12 will ask you on cross, we may as well get rid of it now. Go
13 ahead.
14 A. Well, gee, many of these I haven't even looked at in
15 several months, but I know fuckingmorons.com is one of them.
16 We put some -- before the names of various famous
17 corporations, I think Microsoft might have been one of them,
18 but I'm not sure, somebody beat us to that one, there were a
19 few others. I really have to look at the list because I don't
20 want to misspeak and say somebody else's name is mine, but
21 there are quite a few. There were maybe a dozen or so.
22 Q. Now, let me show you, if I can, documents marked as
23 Plaintiffs' Exhibits 113, 114, 115, 116, this looks like 1.11,
24 1.1, 1.2, 1.4, 1.6, 1.8, 1.7, 1.5, 1.3 and 1.12. I don't
25 think that there are other copies around. Are there? I think
794
1 these are the only copies.
2 And I would ask you to just briefly go through the
3 magazines, look at the green tags and tell me what those
4 relate to.
5 THE COURT: Are you offering them in evidence?
6 MR. GARBUS: I would, your Honor, yes.
7 MR. GOLD: I have no objection.
8 THE COURT: They are not offered for the truth, I
9 take it.
10 MR. GARBUS: They are offered -- right.
11 THE COURT: They are offered as examples of the
12 magazine.
13 MR. GARBUS: Yes.
14 THE COURT: They are received on that basis.
15 (Plaintiffs' Exhibits 113, 114, 115, 116, 1.11, 1.1,
16 1.2, 1.4, 1.6, 1.8, 1.7, 1.5, 1.3 and 1.12 received in
17 evidence)
18 A. Do you want me to go through all of these?
19 Q. Just briefly go through where the green stamps are. Those
20 are the places where you discuss things at your deposition.
21 By the way, are real names or true names used in the magazine?
22 A. That's entirely up to the author. If the author want to
23 submit their real name, we will print their real name. If
24 they want to submit an alias of some sort, we will print that.
25 It's not our decision to make. It's entirely up to them.
795
1 Q. Whether they submit letters to you and articles, is that
2 the same thing?
3 A. Yes.
4 Q. Do you in any way check out the accuracy of the
5 information?
6 A. Only to the point of if they are talking about a
7 particular operating system, does that operating system exist,
8 is the theory that they are expounding somewhat sound. It's
9 impossible with our staff to test out every single theory we
10 get, which is why a lot of what is printed is theoretical in
11 nature. It's something that this is how I believe the system
12 works and we present it. Invariably, we get people writing
13 back saying, no, this is really how the system works and then
14 we have a dialog going on different theories as to operating
15 systems, computer networks, telephone systems, whatnot.
16 Q. When you say -- who is the 2600 staff -- by the way, you
17 are located out in Long Island?
18 A. Yes.
19 Q. Who is the staff out there?
20 A. Well, we actually -- I am the editor and publisher.
21 THE COURT: Mr. Corley, can you back away from the
22 mike a couple inches. Thank you.
23 A. I am the editor and publisher. I have an office manager,
24 and I have someone who works on technical things on the system
25 occasionally.
796
1 Q. Is it fair to say this is basically a one-man operation?
2 A. I wouldn't say it's entirely a one-man operation, but me
3 being in the city actually has made it slow down to a trickle,
4 so I'm definitely the person that does things out there, and
5 everything else kind of is part of that in one degree or
6 another.
7 Q. And are you one of the people who write the materials that
8 goes up on the website?
9 A. The website, yes. I write some of the material that goes
10 up on there.
11 Q. Tell us just now by looking at the green tabs some of the
12 stories that are in the Hacker Quarterly?
13 A. There is a story called Cellular Interception Techniques
14 which basically goes into how cellular telephones work, how
15 cellular calls can be intercepted. It goes into the
16 Electronic Communications Privacy Act which makes such
17 interception illegal. It goes into how anyone with a
18 television set from the 1970s can use that television set to
19 intercept cellular phone calls. It's not exactly an advocacy
20 piece in any way. It's very technical in nature, and I think
21 you come out of this with an understanding of the law and the
22 understanding of the technology and an understanding of the
23 risk if you choose to use this particular type of cellular
24 phone. This is from 1995. It's not used very frequently
25 anymore. I like to think maybe this had something to do with
797
1 it, because the way cellular phone calls had been made in the
2 past was extremely insecure, and there wasn't enough being
3 done to protect people's privacy.
4 Q. And by the way, with respect to companies or utilities
5 that you have written about, have officers from those
6 companies ever contacted you concerning the materials that
7 have been written?
8 A. Well, I would have to say I've gotten more personal
9 contact such as at conferences and meetings with people who
10 say they love our magazine and they read it to find out all
11 the latest possible problems with their systems. Occasionally
12 we get people that threaten us and say you can't print this,
13 but upon challenging them, they have always backed down.
14 Q. And have any corporate executives ever told you that they
15 read your magazine for the first time and found out about
16 flaws in their product?
17 A. Yes, but also a lot of network engineers and they are the
18 ones who actually make the changes.
19 Q. Go ahead, continue.
20 A. I'm not sure if this is the article you wanted me to read.
21 It's entitled Imaginary Friends, and I'm not really sure -- is
22 this from 1996?
23 THE COURT: It's very high tech.
24 THE WITNESS: Yeah.
25 A. I think this is going into how to tell the phone company a
798
1 different name to list on your account. Basically this is for
2 people who are paranoid about being on any kind of a list, and
3 this is a way that you can make up a fake name, not for
4 purposes of fraud but for purposes of privacy, so that when
5 people call you on the phone, they ask for the fake name and
6 you know because they do that that they are looking at a list
7 of names and they are not really trying to call you. So this
8 article goes into how TRW compiles information, what the phone
9 company does when they open up an account for you, how to have
10 an unlisted phone number be really unlisted so your name isn't
11 on any list anywhere.
12 Q. Did you write either of these two articles?
13 A. No, I didn't. If I wrote them, I would remember them, but
14 I just remember them vaguely.
15 Q. Is it fair to say that the magazine is basically an
16 anthology of articles that you received?
17 A. Yes, I was looking for that word before. Anthology is
18 probably the best way. Probably the Readers Digest of the
19 hacker's world. We don't say that everything that is in these
20 articles is 100 percent correct. We have guidelines for the
21 articles, such as we don't print articles that espouse
22 destruction or immature acts or just various bad things.
23 MR. GOLD: Your Honor, I am having a lot of trouble
24 finding out what question the witness is answering in most of
25 these. There are long speeches going on. I was wondering if
799
1 the Court would request that the witness answer the question
2 that was asked.
3 MR. GARBUS: Let me see if we can help.
4 Q. Have you described the article that -- are we still on the
5 same article?
6 A. I had put that one down, but can I go back to it more in a
7 moment.
8 Q. Let's go to the next article. Tell me what the next
9 article deals with?
10 A. Snooping Via MS Mail. This is from 1996 as well. I
11 believe what this does, this describes a product known as MS
12 Mail which various companies use, and how people's mail can be
13 intercepted on that and spied upon. And this is an example of
14 an article that can be used in two ways. We print the
15 information. It can be used in a good way; that is, users can
16 learn about privacy, they can figure out ways to prevent them
17 from happening. Or it can be used in a bad way, someone can
18 take this an actually start spying on people.
19 We don't have a big moral discussion about what is
20 going to happen with the information we print, because the
21 information is already out there. As I said, we are more or
22 less an anthology of what is being distributed and we like to
23 think that by printing this information, we wake people up.
24 Q. Let's go to the next article.
25 A. This is similar to one before, Tips on Generating Fake ID.
800
1 This more or less goes a little bit outside the boundaries of
2 what we usually talk about because it's not really related to
3 computers or telephones, but it does have relevance in that it
4 talks about how people fool the system, how people get around
5 restrictions, and the article is written in kind of an
6 interesting tone.
7 It starts off, so you want to get drunk this weekend
8 or buy some cigarettes, etc., like that. This kind of is on
9 the boundary of what we print, the guidelines I mentioned. I
10 saw this as rather humorous, as a person being somewhat
11 sarcastic because, yeah, the only thing can you possibly do
12 with fake ID is buy cigarettes and get drunk. But I also saw
13 a lot of really good technical information here, websites that
14 are referenced, and if you are looking for somebody who is
15 doing this, this article will tell you what they're up to and
16 how it works. And I think it's something that is widespread
17 enough that you can't just ignore it and pretend it's not out
18 there. So that's the reason we printed that.
19 Q. Go to the next one.
20 A. This is more recent, so I should remember this one. Okay.
21 This is an editorial entitled, The Next Chapter from our
22 Spring 2000 issue. This basically deals a lot with the MPAA
23 case. I'm not exactly sure if you want me to read the entire
24 thing. It's rather large.
25 Q. Just tell me what it's about.
801
1 A. It's an editorial that I wrote and it kind of brings
2 together various issues that were going on at the time,
3 including the case of Kevin Mitnick who was a computer hacker
4 who was in prison for five years. That has drawn to a close
5 at almost the exact same time as this case has started.
6 We also touch upon various other laws that are being
7 passed that we see as being a bad thing, such as California's
8 three strikes laws which allows people who have committed
9 three crimes, even if they are not violent crimes, to be
10 imprisoned for life. So the piece is kind of more of an
11 editorial which covers it all and ties it together in a nice,
12 neat little package.
13 Q. Turn to the cover of the magazine.
14 A. Oh, yes, this is our kind of spoof cover of the MPAA
15 screen.
16 Q. Do you sell T-shirts?
17 A. Yes, we have T-shirts that are similar to this. In fact,
18 we used them to raise money for the defense, and we don't mean
19 any offense by it, it's just kind of a political cartoon that
20 we came up with, and I think most people see the humor in it.
21 Q. Can we go to the next one.
22 A. I think there is another one in the same issue.
23 THE COURT: How many more, Mr. Garbus?
24 MR. GARBUS: Do you want Mr. Goldstein to hand it to
25 the Court so the Court can see it after he has been describing
802
1 it?
2 THE COURT: When he is all done, the clerk will take
3 them.
4 MR. GARBUS: Go ahead.
5 THE COURT: How many more, Mr. Garbus?
6 MR. GARBUS: About half a dozen. These are the ones
7 that he was cross-examined on in the deposition, so we are
8 going to deal with it now.
9 A. I'm not sure if there is a green tag here, but these are
10 two articles. It's either AT&T's Gaping Hole or a Cellular
11 Network Detailed. I'm going to guess it's Gaping Hole, where
12 basically someone outlines a glitch in AT&T wireless service
13 that allows a user to receive free phone service. I remember
14 this particular article was something that the article -- that
15 the person had notified AT&T about and nothing had happened,
16 and the result was they sent us this article with the details
17 of exactly how it worked. And I understand that it doesn't
18 work anymore, so I think that speaks for itself.
19 Q. By the way, if the Court orders you to take down the links
20 to other sites, would you do that?
21 A. Absolutely, if the Court orders it, yes.
22 Q. Were you in Court, by the way, when the Court said it
23 would consider linking at a different time? Did you read the
24 transcript?
25 A. I read the transcript. I don't believe I was in court
803
1 that day.
2 This article is called How Domains Are Stolen, and
3 this is of particular interest to anyone who operates a
4 website. It's possible for people to go and hijack your site.
5 In fact, it happened to us only two weeks ago where someone
6 took advantage of a security hole in Network Solutions and
7 took our domain name, 2600.com and registered it to a site
8 somewhere overseas, and that would have been a real pain to
9 deal with to get back if we hadn't caught it. This article
10 gives one method of how such things are possible, and I would
11 like to think that this article coming out will wake up the
12 people at NSI so that it doesn't happen anymore.
13 Q. By the way --
14 THE COURT: Excuse me, Mr. Garbus. You do
15 understand, do you not, that this is the time when the Court
16 is considering the linking issue, this trial?
17 MR. GARBUS: I understand that.
18 THE COURT: Okay. It wasn't clear from the way you
19 made your comment.
20 Q. Go ahead.
21 A. This is another article on cellular service, spoofing
22 cellular service. This is from 1996, before the onset of
23 digital cellular, so it was a much bigger issue then for the
24 electronic serial number to be grabbed literally as you were
25 driving down a highway by a cellular thief, I guess is the
804
1 best way to describe him, someone sitting on the side of a
2 road with a particular type of scanner who would simply grab
3 your numbers and just by grabbing your numbers, that would be
4 enough for them to become you and start making phone calls
5 under your phone number, and this is another gaping security
6 hole that we felt needed to be known, and I understand that
7 this kind of system is increasingly rare and is probably not
8 going to be around much longer at all.
9 Q. Are there other individuals who use the name 2600.com
10 other than you?
11 A. We are the only people who can use 2600.com. There are
12 other 2600 names in other countries. There is really no way
13 for us to register every single country name, nor would we
14 want to. And it is also possible for somebody to register a
15 machine as 2600. They could register 2600.Microsoft.com for
16 instance, so basically we are happy with having our website
17 2600.com and making sure that people know that's us.
18 Q. Are there other websites out there using a name or
19 something like that which people to your knowledge think are
20 associated with you?
21 A. Yeah, the only site associated with us are the sites we
22 run. The other types of association, it's more of an
23 emotional type of association where they may support the
24 magazine or agree with our basic philosophy and them might put
25 2600 in their name and that's something that really doesn't
805
1 concern us. We don't see that as a copyright issue or
2 something that's necessarily evil. The only time it would
3 concern us if they were doing something in our name that we
4 considered to be wrong.
5 Q. But you have no control over it?
6 A. We have no control over it.
7 Q. There are separate people using 2600?
8 A. Right, in that context, it would be an incredible waste of
9 time to try and control everybody who used that.
10 Q. Go ahead.
11 A. This article is entitled the Backyard Phreaker,
12 P-H-R-E-A-K-E-R.
13 And this goes into some detail on people who
14 literally climb telephone poles and hook into phone lines and
15 make phone calls. This happens quite a bit in unsecured
16 locations. It happens in New York City in the basements of
17 apartment buildings where the phone lines come into the
18 building and are left unsecured. What we find in many cases
19 is that unsuspecting people get these large phone bills and
20 the phone company says it was dialed from your phone number,
21 therefore, you had to have done it. We are showing here that
22 there are many ways people can make these phone calls on your
23 phone line without you ever knowing about it. And many
24 people, including a lot of the WBAI listeners, have used this
25 kind of information to battle the phone company and say, you
806
1 know, there are many other ways somebody could have used this
2 phone number to place this fraudulent call. And we also like
3 to think that this might encourage people to lock those boxes
4 so that everybody in the world can't get access to them.
5 Q. Continue.
6 A. This is actually --
7 THE COURT: Mr. Garbus, I think we have heard enough.
8 You have the magazines in evidence. I can look at the
9 magazines. I don't need anymore summaries.
10 MR. GARBUS: I have no more questions of this
11 witness.
12 THE COURT: Okay. Mr. Gold?
13 Just so we are clear, Mr. Garbus, if you had other
14 questions, you are welcome to continue. I just don't need
15 more summaries of magazine articles. Do you understand?
16 MR. GARBUS: Yes.
17 THE COURT: Mr. Gold?
18 MR. GOLD: May we have the exhibits, the magazines?
19 THE COURT: Yes.
20 MR. GOLD: May I approach the witness for that
21 purpose?
22 THE COURT: Yes.
23 MR. GOLD: Thank you, sir.
24 CROSS-EXAMINATION
25 BY MR. GOLD:
807
1 Q. Good afternoon, Mr. Goldstein.
2 A. Good afternoon.
3 Q. Nice to see you again. Mr. Goldstein, in 1999, did your
4 2600.com site mirror DeCSS?
5 A. That's correct.
6 Q. When did you start?
7 A. I believe we started in late November. I don't have the
8 precise date.
9 Q. The posting that you've just referred to was done by who?
10 A. Who specifically posted the -- it was either myself or my
11 webmaster.
12 Q. And was this a webmaster you preapproved?
13 A. Yes, I take responsibility for everything that's on the
14 site.
15 Q. Is it true that prior to the preliminary injunction, any
16 member of the general public was able to download DeCSS
17 directly from the 2600.com website?
18 A. Any member who had a computer and a net connection could
19 do that, yes.
20 Q. Is it true that 2600.com is currently linking to other
21 sites that post DeCSS?
22 A. Yes, we have been linking from the beginning.
23 THE COURT: Let me ask this, I think I know the
24 answer to this, but I think it ought to be in the record.
25 What does mirror mean as you understood it when you
808
1 answered Mr. Gold's question?
2 THE WITNESS: Mirror is basically a link to another
3 site. Actually, mirror is a duplicate of your site, so it's
4 not entirely correct. I think Mr. Gold is referring to links.
5 A mirror is, say, our site goes down, you go to a site B and
6 it's the exact same thing, so in that particular case, it's
7 not the same. I believe you're referring to links.
8 THE COURT: But he asked you right at the beginning
9 of his examination whether in 1999 your site was mirroring
10 DeCSS and you said it was. What did you mean by that?
11 THE WITNESS: That refers to the specific program
12 DeCSS, so that, yes, that program was mirrored on our site.
13 The site itself, we were not mirroring the entire other site,
14 just the program.
15 THE COURT: Yeah, but I asked you what mirroring
16 means.
17 THE WITNESS: Mirroring means duplicating material
18 that's on another website, whether it be one file or an entire
19 site.
20 THE COURT: Thank you.
21 Q. In 1999, on the 2600.com site, did you encourage people
22 who were interested in supporting you to mirror DeCSS?
23 A. We gave people various constructive ways of expressing
24 themselves and that was one of them, yes.
25 Q. And did you continue to do that in 2000?
809
1 A. Yes, it's still up to this day.
2 Q. Is it true that with the links you have provided and you
3 do provide on the 2600.com site, someone, anyone, can go to
4 the 2600 site, click once on a mouse, which takes you directly
5 to another site that is posting DeCSS?
6 A. Yes, they could do that. They could do it in many other
7 ways as well.
8 Q. In all the time that you were posting and all the time
9 that you have been linking, did you know that DeCSS is
10 designed to circumvent the encryption technology that protects
11 the digital content stored on a DVD?
12 A. I knew that it did one thing and that it was --
13 MR. GARBUS: I object.
14 THE COURT: Ground?
15 MR. GARBUS: Use of the word "circumvent."
16 THE COURT: I take it in the colloquial rather than
17 the legal sense.
18 A. We knew that DeCSS basically got around CSS, got around
19 the encryption that was not holding up to the stress.
20 Q. Is it true, Mr. Goldstein, that DeCSS exists to decrypt
21 CSS?
22 A. That's what it was written to do, yes.
23 Q. Is it true that in a write-up or article that appeared on
24 the 2600.com site, DeCSS was described as a free DVD decoder
25 that allows people to copy DVDs?
810
1 A. Yes, that was on our site, and I have since said that part
2 of that statement is inaccurate, that it was not written
3 solely to copy DVDs. It was written to decrypt CSS. I wasn't
4 aware of the difference myself. I didn't write that piece at
5 the time that it came out. I believed that was completely
6 accurate, but it turns out that it's a bit more complicated
7 than I had at first thought. It's not simply about copying.
8 It's about access control.
9 Q. You recall that you made that statement in your
10 deposition, sir?
11 A. I'm sorry?
12 Q. You recall, sir, that you made that statement in your
13 deposition?
14 A. Yes, I believe I clarified that.
15 Q. And when you say you have just gotten some other evidence,
16 when did you get that?
17 MR. GARBUS: I object if we are going to the
18 deposition. If he wants to read in the question and the
19 answer, he can do that.
20 THE COURT: I will sustain the objection as to form,
21 because I think the question is muddy. But let's see if we
22 get another question.
23 Q. You indicated that you got some new information since the
24 time of your deposition about your last answer, the one that
25 you --
811
1 A. No, that's not what I said.
2 MR. GARBUS: I object.
3 Q. Could you tell me what was you said?
4 THE COURT: The objection is overruled. He said he
5 thought the statement was accurate when made it and now he
6 thinks it's inaccurate.
7 MR. GARBUS: No, no, I think there are two different
8 time frames we are talking about.
9 THE COURT: Obviously. The deposition and now.
10 MR. GARBUS: No, no. From the writing of the
11 article, the deposition and now are three different time
12 frames.
13 THE COURT: We are going to break for the day at this
14 point anyway. I will see you all at 9 o'clock tomorrow
15 morning.
16 MR. HERNSTADT: Your Honor, could we address a
17 scheduling matter?
18 THE COURT: Sure. Address it.
19 MR. HERNSTADT: May we approach?
20 THE COURT: No.
21 MR. HERNSTADT: Fair enough. Tomorrow, your Honor,
22 we have one witness. I know your Honor said that we have to
23 keep the witnesses coming. Unfortunately, every other witness
24 we have, one of them has informed us that he couldn't come at
25 all, and all the other ones are out of state. We've got them
812
1 lined up for Tuesday and Wednesday. Depending on
2 cross-examination we expect, if you permit us to continue, we
3 expect to complete the witnesses by the end of Wednesday.
4 MR. GOLD: Your Honor, I was hoping that we would be
5 finished with this case before Wednesday, and I would like to
6 go to San Francisco Wednesday to try to present a part of the
7 argument being made in court that day on Napster.
8 THE COURT: You better get your people here.
9 MR. HERNSTADT: Your Honor, unfortunately it's not
10 possible.
11 THE COURT: I gave you a lot of advanced warning of
12 this. Do your best.
13 MR. GARBUS: Can I get some kind -- can Mr. Gold tell
14 me how long he expects the cross-examination to be?
15 THE COURT: Tell them what you think.
16 MR. GOLD: I can't imagine it would take as long as
17 as an hour and a half, and I think it will be shorter, but
18 something like that, best guess.
19 THE COURT: Okay. 9 o'clock.
20 MR. COOPER: Your Honor, what we have been told, so
21 that we are all clear, is that Mr. Peterson is available for
22 tomorrow. The other names we have been given are for Tuesday.
23 THE COURT: Who were the other people?
24 MR. GARBUS: Can I just say one thing?
25 MR. HERNSTADT: Your Honor, we have on Tuesday
813
1 Olegario Craig.
2 THE COURT: Say the name again.
3 MR. HERNSTADT: Olegario Craig. He is a systems
4 administrator at the University of Massachusetts. He can't
5 get off from his job until then. He is taking two days of
6 vacation to come down for it. Matthew Pavlovich who is the
7 director of the LiViD project lives in Dallas, Chris DiBona
8 who works with Linux and he is addressing the Linux operating
9 system, he is in Palo Alto. Peter Ramadge who is at
10 Princeton, but he is going to do a demonstration and we were
11 unable to get the monitors to do the demonstration until
12 Monday. Michael Einhorn who is in New Jersey. Dave Touretzky
13 is in Holland and Andrew Appel is in Hawaii.
14 MR. GOLD: I think none of our witnesses were from
15 this area and they all disturbed their plans to meet their
16 obligations to be in court.
17 MR. HERNSTADT: Your Honor, all of our witnesses are
18 volunteers, pro bono, coming at their own expense. We are
19 doing the best we can to get them here. We don't have -- we
20 don't control them. I apologize.
21 THE COURT: Look, Princeton, New Jersey, the last
22 time I looked was about an hour from here. Dallas is a three-
23 and-a-quarter-hour airplane ride. And there are planes this
24 evening. You do what you can. I'm not making any ruling now,
25 but I remind you that you were told there would be no gaps,
814
1 both sides were told, you were warned about it, you were told
2 that the plaintiff expected to rest on Thursday. They did
3 rest on Thursday. There have been no surprises.
4 Thank you, folks.
5 (Trial adjourned to July 21, 2000, at 9:00 a.m.)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
815
1
2 INDEX OF EXAMINATION
3 Witness D X RD RX
4 JON JOHANSEN.............616 627 641
5 MIKHAIL REIDER...........646 676
6 EDWARD FELTEN............731 763
7 ERIC CORLEY..............774 806
8
9 PLAINTIFF EXHIBITS
10 Exhibit No. Received
11 113, 114, 115, 116
12 1.11, 1.1, 1.2, 1.4, 1.6, 1.8,
13 1.7, 1.5, 1.3 and 1.12 ................... 794
14
15 DEFENDANT EXHIBITS
16 Exhibit No. Received
17 BBP .........................................735
18 B to Exhibit BBS ............................755
19
20
21
22
23
24
25