984
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 25, 2000
10 9:00 a.m.
11 Before:
12 HON. LEWIS A. KAPLAN,
13 District Judge
14 APPEARANCES
15 PROSKAUER, ROSE, L.L.P.
Attorneys for Plaintiffs
16 BY: LEON P. GOLD
CHARLES S. SIMS
17 CARLA MILLER
WILLIAM M. HART
18 MICHAEL MERVIS
19 FRANKFURT, GARBUS, KLEIN & SELZ
Attorneys for Defendants
20 BY: MARTIN GARBUS
ERNEST HERNSTADT
21 DAVID ATLAS
JEFFREY ROLLINGS
22
23
24
25
985
1 (In open court)
2 THE COURT: Good morning.
3 MR. ATLAS: Before we begin with the testimony today,
4 would it be possible to move in the exhibits and the
5 deposition testimony, or would you rather do that before the
6 break or whatever?
7 THE COURT: Let's not keep the witness waiting.
8 MR. GARBUS: Your Honor, can I just approach the
9 bench a minute? I hope the last bench approach.
10 (At the sidebar)
11 MR. GARBUS: I just wanted to point out, because the
12 comments on Thursday and Friday that I briefed at the reply on
13 page 2, footnote 2, is whether one agrees or disagrees that
14 plaintiff's conduct and the relief sought in the complaint
15 also violates antitrust law and the first sale doctrine, as
16 well as 1201(b)(3)'s prohibition against encryption technology
17 that like CSS and home DVD players requires a particular
18 design.
19 Plaintiffs believe that the licensing regime and the
20 DVD-CCA constructed permits them to dictate to members of the
21 public who purchased their movies on DVDs (but not on VHS or
22 VCD) as then purchased and approved CSS-licensed DVD players
23 on which to view the movie.
24 And then there's a quote. It says: Indeed, Fritz
25 Attaway was the MPADC general counsel and many congressional
986
1 lobbyists testified that "In order to obtain authorized access
2 to a DVD, the consumer has to, in fact, make two purchases.
3 He or she has to buy a DVD disk and also has to purchase a DVD
4 display device."
5 I just wanted to point that out that whether or not
6 that's an issue in the case, we perceived it to be an issue,
7 whether one agrees with it or disagrees with it or not.
8 THE COURT: Well, the Court doesn't perceive it to be
9 an issue. You never pleaded it.
10 (In open court)
11 THE COURT: Mr. Cooper?
12 MR. COOPER: I have one issue with respect to the
13 exclusion of witnesses. My understanding is that we will hear
14 from the defense today, five expert witnesses. I would like
15 to be able to have Mr. Schumann sit in on their testimony in
16 order to aid us in preparing for potential rebuttal in the
17 event that any of them testified to matters to which he might
18 need to respond. If there's no objection, I'd like him to
19 attend that portion.
20 THE COURT: Is there any objection?
21 MR. GARBUS: No, your Honor.
22 MR. COOPER: Thank you, your Honor.
23 THE COURT: Your next witness, Mr. Garbus?
24 MR. HERNSTADT: Good morning, your Honor.
25 THE COURT: Mr. Hernstadt, I see where you spent the
987
1 weekend.
2 MR. HERNSTADT: I'm sorry?
3 THE COURT: I see where you spent the weekend.
4 MR. HERNSTADT: For some reason everybody has noticed
5 today. The defendants call Chris DiBona.
6 CHRIS DI BONA,
7 called as a witness by the defendant,
8 having been duly sworn, testified as follows:
9 THE CLERK: State your name for the record.
10 THE WITNESS: My name is Chris DiBona, D-I B-O-N-A.
11 THE COURT: You may proceed, Mr. Hernstadt.
12 MR. HERNSTADT: Thank you, your Honor.
13 DIRECT EXAMINATION
14 BY MR. HERNSTADT:
15 Q. Good morning, Mr. DiBona.
16 Mr. DiBona, where do you live?
17 A. Well, Palo Alto, California.
18 Q. Can you describe your educational background?
19 A. Yeah. Let's see now. I went to school over at George
20 Mason and studied computer science.
21 Q. When was that?
22 A. That probably was from about '91 until about '96.
23 Q. And what were the courses that you took in your computer
24 science program?
25 A. You know, your basic broad-range of courses ranging from
988
1 programming languages to database design, compiler design,
2 system architecture, systems engineering, that sort of thing.
3 Q. And could you describe your employment history, please?
4 THE COURT: Well, did you graduate?
5 THE WITNESS: No, I have one class left, sir.
6 THE COURT: I'm sorry? I couldn't understand your
7 answer.
8 THE WITNESS: I have one class left.
9 THE COURT: And this is for a bachelor's degree?
10 THE WITNESS: Yes.
11 THE COURT: Go ahead.
12 BY MR. HERNSTADT:
13 Q. Could you describe your employment history, please.
14 A. In chronological order or -- O.K. I worked for the United
15 States Department of State in their office of information
16 management doing prototype software and doing dispute security
17 work for them. I then went to work for a law firm in
18 Washington, where I administered an E-mail system.
19 I worked -- came up to the -- I worked for Tandem,
20 and I worked for Tandem and Smart Cards. I started
21 consulting. Then I discovered VA Linux systems.
22 Q. When did you first start using Linux?
23 A. I first discovered Linux in late '94 as part of my
24 computer science studies, at Sun Labs. So, it was easier for
25 me to install the Linux on the machine at home and do my
989
1 homework there.
2 Q. And have you been using it as your system of choice for --
3 since 1994?
4 A. Pretty much.
5 Q. Are you being paid by the defendants or DFF to be here
6 today?
7 A. No, I'm not.
8 Q. What does VA Linux do?
9 A. VA Linux is a provider of systems software and
10 professional services around the Linux operating system. We
11 sell, you know, computers for the infrastructure market. We
12 sell scientific computing clusters and a limited range of
13 graphical work stations.
14 Q. Can you explain what those last two items are?
15 A. A scientific cluster is -- basically, it's a large
16 collection of computers that are designed to attack a
17 scientific problem, say weather or nuclear weapons
18 simulations. Those two are the common uses of those. Instead
19 of using one very, very large, very, very expensive system,
20 you take a number of much smaller, much less expensive
21 computers to attack the jobs, as far as --
22 THE COURT: Mr. DiBona, it's very difficult for me to
23 understand. Obviously the reporter is having a tough time,
24 too.
25 THE WITNESS: Sorry, your Honor.
990
1 Q. Mr. DiBona, if you could perhaps talk a little more
2 slowly, it might make it easier for everybody to understand
3 you.
4 A. No problem.
5 Q. Thanks.
6 You were talking about scientific clusters.
7 A. For graphical work stations. So, one of our clusters,
8 already a graphical work station, is used by scientists and
9 engineers to simulate or visualize data sites so that people
10 can understand them, what kind of data they're working with.
11 Q. And does VA Linux provide the software and the hardware
12 for these systems?
13 A. Yes, we do.
14 Q. And what's the software on systems?
15 A. Usually it's just -- you know, we install Linux. We
16 configure it specifically for the hardware, so it performs
17 well. We do some third-party software that we add on top of
18 it sometimes. It depends on the need of customer.
19 Q. And does VA Linux provide anything other than for software
20 and hardware for its customers?
21 A. Under the circumstances, you have professional services,
22 integration services, deployment services. That's about it.
23 Q. Is VA Linux a publicly-traded company?
24 A. Yes, we are. We went public December of last year.
25 Q. And are there other publicly-traded companies that deal
991
1 with the Linux operating system?
2 MS. MILLER: Objection. Foundation.
3 THE COURT: Overruled. Go ahead.
4 A. There are a number of them. They're Caldera, Red Hat.
5 Also companies like Dell, Compac and IBM all start up with
6 Linux's efforts.
7 Q. And what is the nature of these efforts?
8 A. They saw the market growing, and so they're trying to
9 address it in their own ways.
10 Q. Is this both software and hardware?
11 A. Yes.
12 Q. Based upon your -- excuse me, what is your position at VA
13 Linux?
14 A. I'm a director in the marketing department. My job is
15 essentially development with the Linux community at large.
16 So, they sort of have a way of talking with us, and we have a
17 way of starting dialogue with them, if need be.
18 Q. And how do you accomplish that function?
19 A. A lot of different ways. We give away hardware to groups
20 who need it for their development. We provide hosting and
21 network bandwidth to projects that need it. I go to trade
22 shows and speak a lot, that sort of thing.
23 Q. Now, based upon your job at VA Linux, do you have
24 information about how many people are using the Linux
25 operating system now?
992
1 A. Yeah. Currently, depending on who you talk to, it's about
2 20 million people is the best guess right now. That's from
3 using numbers from IDC combined with sort of the work that
4 Red Hat and we've done on sort of measuring the Linux market.
5 Q. And what is IDC?
6 A. IDC is a company up in Farmingham, Massachusetts that
7 specializes in market research reports on the computer
8 industry.
9 Q. And what are the uses for Linux right now?
10 A. Right now, Linux is --
11 MS. MILLER: Objection; relevance, foundation.
12 THE COURT: Sustained.
13 Q. Based upon your position at VA Linux, can you say how
14 successful Linux is as a program right now?
15 MS. MILLER: Objection.
16 THE COURT: Sustained.
17 MR. HERNSTADT: Your Honor, on relevance?
18 THE COURT: Well, I think relevance. I think
19 foundation. I think it's basically calling for hearsay. You
20 don't -- there is no definition of what "successful" means.
21 MR. HERNSTADT: O.K.
22 THE COURT: It's kind of like asking somebody who
23 buys for supermarkets whether Tide is successful to get the
24 stains out. I don't know.
25 MR. HERNSTADT: I understand, your Honor.
993
1 BY MR. HERNSTADT:
2 Q. Mr. DiBona, from the perspective of VA Linux and you, as
3 the director of marketing, what is the measure of success in
4 terms of the Linux operating system? How would you measure
5 it?
6 MS. MILLER: Same objection.
7 THE COURT: Overruled.
8 A. We measure it a number of different ways. We rely on
9 Netcraft to show us the growth of Linux in the Internet
10 serving market. That tells us how Linux is growing in terms
11 of percentage of web servers out there.
12 THE COURT: What is Netcraft?
13 THE WITNESS: Netcraft is an another market research
14 site. What they do is they, using a program, sort of pull
15 different machines on the Internet to see what they are
16 running, and they put together a report based on that, and
17 from this point they can tell if they're running Windows or
18 Linux or whatever.
19 And from information like this, we can tell how Linux
20 is doing in the marketplace, and it helps us in our
21 forecasting and predictions on our own sales because we know
22 that our percentage of sales of that market is connected to
23 the growth of Linux. So, that's how we figure out how to
24 attack the market.
25 BY MR. HERNSTADT:
994
1 Q. And what results do you see today with respect to how
2 Linux is growing in the market?
3 A. Well, specifically VA Linux has been growing depending on
4 which part you look at, between 30 and 60 percent each
5 quarter. That's pretty much above what Netcraft is showing as
6 a percentage of the Internet serving market.
7 THE COURT: I'm sorry. I don't understand the
8 answer. What is VA?
9 THE WITNESS: VA, that's the company I work for.
10 Sorry.
11 THE COURT: I see. So, basically, what you are
12 telling us is that this Netcraft service tells you that Linux
13 is growing 30 to 60 percent per quarter.
14 THE WITNESS: No, that's our own numbers. The
15 Netcraft shows that Linux is growing anywhere -- basically a
16 little percentage each month.
17 THE COURT: I'm sorry. A little percentage each
18 month?
19 THE WITNESS: Yeah, like a percent or two each month,
20 as a percentage of total Internet circuit.
21 THE COURT: What percentage? I'm not sure this was
22 the right witness or that this isn't hearsay.
23 Just out of curiosity, what percentage of the market
24 for operating systems in the United States does Linux account
25 for as far as if you know?
995
1 THE WITNESS: Internet serving market. I can tell
2 you a number that makes sense.
3 THE COURT: In the server market?
4 THE WITNESS: Yeah. Specifically, Linux is about
5 32 percent.
6 THE COURT: In the server market?
7 THE WITNESS: In the web server market.
8 THE COURT: In the web server market?
9 THE WITNESS: Yes.
10 THE COURT: And overall?
11 THE WITNESS: It's almost impossible to tell you.
12 THE COURT: All right. Go ahead.
13 BY MR. HERNSTADT:
14 Q. Does VA Linux have plans to expand into its desktop
15 market?
16 A. We have a few offerings in the desktop market, but it's
17 not a very large percentage of our sales right now.
18 Q. What kind of offerings do you have right now?
19 A. We have a very low-end desktop and sort of a medium-range
20 graphical work station.
21 Q. What is limiting, if anything, about VA Linux's ability to
22 get into the desktop market?
23 MS. MILLER: Objection. Leading, foundation,
24 relevance.
25 THE COURT: I don't see the relevance, counsel.
996
1 What's the relevance?
2 MR. HERNSTADT: The relevance is that Mr. DiBona can
3 testify about why there is a disparity between the server
4 market and the operating system market for the general public
5 and the desktop.
6 THE COURT: What does that matter to this case?
7 MR. HERNSTADT: It matters because one of the reasons
8 it's different is the lack of applications and applications,
9 such as, for example, a DVD player. Those applications are
10 necessary to make an operating system generally attractive and
11 generally viable.
12 And to the extent that this case is about DeCSS and
13 DeCSS is a part of the reverse engineering project to bring
14 DVD players to the Linux operating system, Mr. DiBona can
15 testify that that's an essential ingredient in the viability
16 of Linux as an operating system.
17 THE COURT: What has that got to do with the issues
18 in this case? This isn't the Microsoft case. I could
19 understand this line of questioning in the Microsoft case.
20 MR. HERNSTADT: I understand, your Honor. I think
21 what it gives you is more as to the liquidity of reverse
22 engineering.
23 THE COURT: As to the --
24 MR. HERNSTADT: To the presence of reverse
25 engineering.
997
1 THE COURT: To the presence of reverse engineering.
2 MR. HERNSTADT: That it is a normal and, in fact,
3 necessary part of building Linux applications, that the DVD
4 player application is a necessary part to make the Linux
5 operating system viable, and it was DeCSS was part with the
6 reverse engineering in order to give the DVD player a
7 presence.
8 I understand that when I was not here there were
9 discussions about antitrust and --
10 THE COURT: That would be something of an
11 overstatement.
12 MR. HERNSTADT: O.K. I think that what this can
13 show, though, is that if Linux and if applications are not
14 made for Linux, then that will have an anti-competitive effect
15 on the Linux operating system and will deny -- make it much
16 more difficult for it to be viable, which will have an
17 anti-competitive effect.
18 THE COURT: What's that got to do with this case?
19 MR. HERNSTADT: We have an affirmative defense.
20 THE COURT: Your affirmative defense is that the DMCA
21 violates the antitrust laws. I expressed myself fully on that
22 last week. That's not a defense to anything.
23 MR. HERNSTADT: I think, also, your Honor, in terms
24 of statutory construction, perhaps it gives a certain amount
25 of guidance that, if the statute permits, an interpretation as
998
1 opposed to another interpretation, if one interpretation
2 permits a situation that has anti-competitive effects and is
3 bad for the public, because of that, that perhaps that's
4 not -- that might be one of the factors that would --
5 THE COURT: You know, the patent laws have an
6 anti-competitive effect. If a drug company finds the cure for
7 cancer and patents it, it will be the only drug company that
8 can sell it. They will charge whatever they want, and it will
9 be highly anti-competitive, and it will be perfectly legal
10 because the Patent Code so permits. So, I just don't get the
11 argument.
12 MR. HERNSTADT: I understand, your Honor. This is
13 not a patent situation. The plaintiffs --
14 MR. GARBUS: Your Honor, can I just briefly be heard
15 with regard to that?
16 THE COURT: I will hear you.
17 MR. GARBUS: I think the position that we take and
18 the answer says the DMCA as interpreted applied, it doesn't
19 say facially. And what it says is that if this Court or any
20 Court were to permit an anti-competitive situation, an
21 antitrust situation to create that, that would be -- that
22 would be an interpretation the DMCA made, which we believe
23 runs up against Sony, Sega, and the other issues.
24 I don't want to have the argument now. I think the
25 Court has expressed its feeling. I just did want to point out
999
1 that that is the position that we take to make it clear with
2 respect to this witness' testimony. And I know the Court
3 disagrees.
4 THE COURT: Ms. Miller?
5 MS. MILLER: As the Court has already stated, the
6 plaintiffs view this as completely irrelevant testimony. The
7 defendant has already admitted that he's not engaged
8 personally in reverse engineering activities.
9 And as far as whether or not there is a DVD player
10 available, and if it's a Linux operating system, you've
11 already heard testimony that other developers of DVD players
12 have sought and in certain instances obtained licensing from
13 the DVD-CCA and developed such players. Again, this adds
14 nothing to the record.
15 THE COURT: I take it, Ms. Miller, that you don't
16 have any quarrel with the basic proposition that the ability
17 of any operating system, be it Linux or anything else, to
18 succeed in the marketplace is related to the extent to which
19 applications that run under that operating system are
20 available; is that true?
21 MS. MILLER: Theoretically and absolutely not. We
22 have no quarrel with that.
23 THE COURT: And not only theoretically, I take it you
24 have no quarrel with the proposition that that's true for
25 Linux.
1000
1 MS. MILLER: I don't know that that's true for Linux.
2 I don't think we've heard through this witness whether or not
3 that, in fact, is true.
4 THE COURT: Well, I was trying to save some time, but
5 I guess we are not going to save some time.
6 Go ahead, counsel.
7 MR. HERNSTADT: Thank you, your Honor.
8 Actually, could we have the last question and answer
9 read back before we went into the objection, your Honor?
10 THE COURT: Yes.
11 (Record read)
12 MR. HERNSTADT: Thank you.
13 A. There is a certain lack of applications for the desktop
14 market. For instance, office productivity and certain
15 vertical market applications for things like doctors, dentist
16 offices, and that sort of thing. You have to have a certain
17 number of applications before you can sell the personal
18 desktop, everything from software for small offices to large
19 ones, so...
20 Q. Is the DVD player one of the applications that your
21 company thinks would be necessary to make the Linux operating
22 system viable for the personal market?
23 MS. MILLER: Objection, relevance.
24 THE COURT: I'm going to hear it.
25 A. Basically multimedia is still very important for the
1001
1 personal market. If we were to sell to an end user, we would
2 have to be able to compete, and for DVD, CD, audio, the whole
3 thing. And most of that is that for Linux DVD is not because
4 of the -- it is just the manufacturers never made a player,
5 and when the people tried to write one themselves, the
6 developers out there on the net and such, they were met with
7 resistance, and that's why I'm here.
8 Q. Is VA Linux doing anything to develop applications?
9 A. Well, we have a couple of efforts. My regular activities,
10 where I give away hardware and make sure that people who are
11 working on these kinds of problems are helped out however we
12 can, be it by hosting or by serving or administration of our
13 machines.
14 We also have a project called Source Forge, and it
15 hosts about 6,800 projects, and about 40,000 of them source
16 developer, the idea being that if we administer the machines
17 and take care of backups and provide for messages and
18 discussions and reports, that they can get to the business of
19 doing the software that they want to do without having to
20 worry about the minutia of system administration and such.
21 Q. You said it hosts about 6,800 projects. Are those
22 different projects for Linux applications?
23 A. Yes.
24 Q. And who owns the application if the project is successful
25 and completed?
1002
1 MS. MILLER: Objection, relevance, calls for
2 speculation.
3 THE COURT: Overruled.
4 They are owned by the project leaders and the
5 developers on the site. VA doesn't take an ownership of the
6 projects. They are just there to help.
7 Q. Mr. DiBona, do you know what DeCSS is?
8 A. Yes.
9 Q. Have you ever used DeCSS on a DVD?
10 A. For the purpose of my writing my declaration, I used DeCSS
11 to copy a VOB file off of a DVD.
12 Q. Have you ever made a DVD available on the Internet to
13 other people to upload?
14 A. Never.
15 Q. Have you ever downloaded a DVD from the Internet?
16 A. Never.
17 MR. HERNSTADT: Thank you very much.
18 THE COURT: Thank you, Mr. Hernstadt.
19 Ms. Miller?
20 MS. MILLER: No questions, your Honor.
21 THE COURT: All right. Thank you, Mr. DiBona. You
22 are excused.
23 THE WITNESS: Thank you, your Honor.
24 THE COURT: Next witness?
25 (Witness excused)
1003
1 MR. HERNSTADT: Your Honor, the defendants call on
2 Olevario Craig.
3 OLEVARIO LOPEZ CRAIG,
4 called as a witness by the defendant,
5 having been duly sworn, testified as follows:
6 THE CLERK: State your name, spelling it slowly.
7 THE WITNESS: Olevario Lopez Craig. O-L-E-V-A-R-I-O
8 L-O-P-E-Z C-R-AI-G.
9 THE COURT: Counsel, you may proceed.
10 MR. HERNSTADT: Thank you.
11 DIRECT EXAMINATION
12 BY MR. HERNSTADT:
13 Q. Mr. Craig, where do you live?
14 A. In Amherst, Massachusetts.
15 Q. Can you describe your educational background, please?
16 A. I assume you just want higher education.
17 I attended UMASS in the fall of 1998 and spent three
18 years as a computer science major, dropped out for reasons
19 both academic and non, and then came back to complete a degree
20 in communications, which is a B.A., and that was -- I finished
21 in May of 1995.
22 Q. How long have you been working with computers?
23 A. Depends on how one defines "working," but I've been using
24 computers since, oh, I would guess 1983. I've been employed
25 regarding computers since mid-high school, which would be
1004
1 1986.
2 Q. And could you describe your employment history?
3 A. With regard to computers?
4 Q. Sure.
5 A. Several summer jobs, working for a small software company
6 in Waltham, Massachusetts, which is now defunct by the name of
7 DataTree. At that point in time, I did things like create
8 their software distributions, make the floppy disks that
9 actually had the software on it, package it up, send it out.
10 I also set up a bulletin board system, which was at
11 that point the height of customer service technology, not
12 really related to work. But at the same time, the high school
13 that I attended had old deck hardware, Digital Equipment
14 Corporation hardware, including VAX 11780 and previously
15 PDP1170, both of which ran Unix Operations, U-N-I-X operating
16 systems.
17 Q. And how long have you been employed by the University of
18 Massachusetts?
19 A. Since shortly after graduation in 1995.
20 Q. What is your position there?
21 A. Well, my position has changed somewhat over the past five
22 years, but I was initially hired as entry-level software
23 support for people who were familiar with ISP, that would be
24 analogous to help desk support. You call up and you tell
25 somebody that something is not working and they help you
1005
1 figure it out.
2 I have since moved away from that and into second and
3 third tier operations, operating systems applications and
4 networking support.
5 Q. And have you done any consulting work?
6 A. From time to time, on the side, I do various bits and
7 pieces, mostly relating to people who want to set up
8 networking in their mall business or home office. I've had a
9 few clients. I couldn't really point to a number, probably
10 less than five over the last three years.
11 Q. And what operating system do you use in your work?
12 A. At work, we have a very heterogenous environment. We
13 maintain seven different players of Unix operations. One
14 includes Unix, in addition to Windows NT, '95, and Windows
15 2000, and several different versions of the McIntosh system.
16 Q. And what operating system do you use at home?
17 A. In my house, I have several computers. On my main
18 computer, the one that I use most often, I have both Linux and
19 Windows '98.
20 Q. And Mr. Craig, are you being paid to be here today?
21 A. I am not. Actually, spending my vacation time to be here.
22 Q. You said that you have a Windows program on your home
23 computer. What do you use that for?
24 A. Interestingly enough, as it pertains to this case, I use
25 Windows -- I have Windows on my home computer as a bootable
1006
1 operating system solely to be able to play DVDs. I don't
2 really play games anymore. There aren't many reasons, from my
3 point of view, to actually boot into Windows, rather than run
4 it under an application like VM Ware. Playing DVDs is really
5 the only reason why I have Windows as a bootable operating
6 system on my home computer.
7 Q. Can you explain what the difference is between booting
8 into Windows and using it in an application like VM Ware?
9 A. Certainly. It's typical when setting up a Linux system on
10 a system that already has Windows installed, to set it up on
11 what's called a dual boot, meaning that if you turn the
12 computer on, you have the choice of which operating system to
13 run.
14 And, thereafter, after that session, you are locked
15 into that operating system. In other words, to get to the
16 other operating system, you have to reboot the operating
17 system controlling the computer completely.
18 And if you want to run programs from another
19 operating system, you have to reboot. The only reason that I
20 boot into Windows is that I can run the software in running my
21 DVD player card. The software to do that under Linux -- which
22 tells me it's going to happen really soon -- is not yet really
23 ready for just sitting down and playing.
24 MR. COOPER: Move to strike the last portion; hearsay
25 grounds.
1007
1 MR. HERNSTADT: Your Honor, I can inquire what the
2 basis of the --
3 THE COURT: All right. Go ahead and do that.
4 Q. Mr. Craig, when you were talking about the Linux DVD
5 player, what is the basis of your knowledge, if any, about the
6 Linux DVD player?
7 A. Well, starting, I would guess, sometime in November or
8 December of last year, I was really looking to get Windows off
9 of my home computer. I had reached a level of frustration
10 with it, and as I said, I decided that I really didn't need it
11 for anything else.
12 So, I was looking for a Linux application to play
13 DVDs and went to the Web and searched and found the LiViD home
14 page, followed the links and saw that there was this ongoing
15 trial, but that there was something there that could be
16 downloaded from the CVS repository. So, I downloaded at that
17 point in time and built it -- wasn't really able to get it to
18 work satisfactorily.
19 At that point, it was particularly on my particular
20 hardware decoder card which wasn't supported, and it wasn't at
21 a level that I felt comfortable to try to replace my Windows
22 application operating system.
23 Q. Would you explain, Mr. Craig, what the CVS is?
24 MR. COOPER: Relevancy, your Honor.
25 THE COURT: Overruled.
1008
1 A. It has nothing to do with pharmacies. It stands for
2 Concurrent Version System. It's a method by which people can
3 work on a single code base and download the code, make
4 changes, fix bugs, upload the code, and merge it into a
5 coherent hole.
6 Q. Mr. Craig, in your position as the systems administrator
7 in the computer science department in Amherst, Massachusetts,
8 have you worked with the network for the computer science
9 department?
10 A. Extensively. I'm involved in design decisions. I don't
11 usually make purchasing decisions, but I help lay out the
12 groundwork for what needs need to be filled, where we should
13 go for upgrade capacity, what kind of room we need to leave
14 ourselves for future improvement.
15 Q. And are you also familiar with the University of
16 Massachusetts' network of a hole?
17 A. I am familiar to a lesser degree. It's not a network that
18 I administer personally, but I do know a great deal about how
19 it works by necessity because we are connected to it. I also
20 know a great deal about the hardware on which it runs.
21 Q. And what's the basis of your knowledge?
22 A. Having to work with it, having to connect to it, it's also
23 a point of interest for what we do in order to tell an
24 incoming student or a prospective student or prospective
25 faculty member what kind of facilities they're going to have.
1009
1 We regularly try to update our own description on
2 what the University of Massachusetts has for technology
3 resources and particularly after my deposition in this case, I
4 went and made it my business to research more about the UMASS
5 network in specific.
6 Q. Is research a part of your job?
7 A. Absolutely.
8 Q. And how do you research -- do you do research information
9 about systems or networks or the research that you do in your
10 job?
11 A. The web is by far the greatest tool that has ever been
12 invented for research. Second to that, there is the archive
13 of news groups at what's called Deja News, which allows one to
14 see roughly the last five to ten years' worth depending on the
15 hierarchy of on-line discussions regarding any subject, you
16 can imagine the subjects that I generally go looking for are
17 hardware and software integration, but the web is certainly a
18 primary source.
19 Q. Is that true for systems administrators generally or is
20 that true just for you?
21 A. I think that's absolutely true for systems administrators
22 in general. Without the Web, finding information necessary to
23 solve problems becomes much more difficult.
24 Q. Mr. Craig, could you describe the topology of the
25 University of Massachusetts network?
1010
1 A. The UMASS network itself or our section of it, the campus
2 backbone, which is the core of the network is what's called
3 star wired single mode fiber that is gigabyte Ethernet. It
4 has a transfer of theoretical maximum capacity of 1,000
5 megabits per second.
6 That is attached to five routers from which
7 subsections of networking depend at a speed of 100 megabits
8 per second. So, it uplinks to the routers of 100 megabits per
9 second.
10 From those five sections, you get various physical
11 areas of campus. The southwest residential area, as an
12 example, has its own switch which is connected to the --
13 actually, it's a Cisco 5500 switch, which is connected to the
14 Whitmore switch, which is one of the five switches on one of
15 the five switches connected to the routers in the backbone.
16 Other areas of campus are likewise funneled into
17 those five routers. Typically, an area of campus right -- if
18 you think of it as a tree coming out from that router, you'll
19 get thinner and thinner branches, but most sections of campus
20 one of 100 megabit Ethernet right up to the point where one
21 dissolves, so the leaves, the nodes, where you generally get
22 between 10 and 100 megabits per second depending on that
23 particular section of campus and the architecture and what
24 it's required to do.
25 I should state that an exception to all of this is my
1011
1 network or what I like to think of as my network which is
2 attached outside the campus backbone directly to the router
3 that connects both to the cable and wireless Internet
4 connection, which is our commodity Internet connection.
5 Q. Do you know who has access to the Internet to connections?
6 A. I know that access from the dorms is extremely limited.
7 That router is rate limited and, in fact, we are -- I think we
8 are the only department on campus that can take as much
9 bandwidth as we need for that router.
10 MR. COOPER: Move to strike, your Honor.
11 The witness was asked whether he knew and then he
12 supplied an answer, which I believe is based on hearsay.
13 THE COURT: Is that right Mr. Craig?
14 THE WITNESS: I don't believe so.
15 THE COURT: Well, how did you know what you just told
16 us?
17 THE WITNESS: Because I've seen the router and I've
18 worked with the cables that are connected to it.
19 THE COURT: Motion denied.
20 Q. What is the speed -- or excuse me -- the bandwidth of the
21 Internet connection from the campus backbone to the Internet?
22 A. It's what's called a partial DS-3. We have 30 megabits
23 per second on the cable and wireless router.
24 Q. By way of example, could you explain the different
25 switches or connections that a file sent from a dorm room to
1012
1 the Internet would have to go through on the way?
2 MR. COOPER: Lacks foundation.
3 Q. Do you know from personal knowledge how the topology of
4 the Internet, so that you could describe that based on your
5 knowledge?
6 A. Yes.
7 Q. O.K., could you do so, please?
8 MR. COOPER: Lacks foundation.
9 THE COURT: Overruled.
10 A. I mentioned earlier the southwest dormitories which are
11 the single largest residential area on campus. A file going
12 from a dorm room in the southwest dormitories would go from
13 the student's computer to what's called a node room, a switch
14 Ethernet connection to a node room in the dorm, there are up
15 to three node rooms per dormitory.
16 The node rooms have switches in them that are 10
17 megabits to the students' rooms and then they are star wired
18 with 100 megabit uplink to a core switch, which would then go
19 to the aforementioned Cisco 5500 router switch off of the
20 southwest residential area, which is connected to the
21 Whitmore, which is connected to the Whitmore -- I can't
22 remember the numbers.
23 It's connected to a Cisco router at the Whitmore
24 point of presence on the backbone. So, it would then go from
25 100 megabit between the southwest switch and the Whitmore
1013
1 switch to the gigabit Ethernet on the backbone. Then it would
2 go to the LGRC router, which connects to the cable and
3 wireless router and out to the commodity Internet.
4 THE COURT: Is the bottom line of all this that if
5 somebody wanted to up or download a file from a dorm room, the
6 transfer rate limitation would be the 10-megabit-per-second
7 switch in the dorm and whatever proportion of that capacity
8 might be available at the moment to the particular user?
9 THE WITNESS: Actually, it's a little bit more
10 complicated than that.
11 THE COURT: Go ahead.
12 THE WITNESS: I mentioned the 100 megabit uplink to
13 the -- let's take the 100-megabit section between the node
14 room and the southwest router. That 100-megabit uplink is
15 taking all the traffic from -- if we have a large dorm, we
16 have three node rooms. It's taking all of the traffic from
17 all of the students in those rooms. I think the largest dorm
18 we have on campus is in the realm of 1,400 students.
19 I know that we have at least 1,400 students in a
20 single dorm because I was in such a dorm. So, that's 1,400
21 guided by a maximum of three node rooms. And if you have any
22 proportion of those 1,400 students using the Internet, what
23 you're going to see is not a fraction of the
24 10-megabit-per-second link to the student which is actually
25 switched.
1014
1 You're going to see a fraction of the
2 100-megabit-per-second uplink which is shared among those
3 1,400 students.
4 THE COURT: O.K. Thank you.
5 Mr. Hernstadt?
6 Q. Has University of Massachusetts upgraded its system in the
7 last two years?
8 A. Extensively.
9 Q. And at which points on the route have they made the
10 upgrades?
11 A. The dorm networking project is ongoing, so they are
12 pulling what in industry is called the last mile, but in the
13 legal area network, it's actually a much shorter distance into
14 new dormitory rooms probably as we speak.
15 We have I think 42 dormitories total that plan to be
16 wired, and I think of those, 35 are completed. They have also
17 upgraded the campus backbone which used to be fiber digital
18 internet, FDDI, F-D-D-I. They have upgraded that to single
19 mode fiber gigabit Ethernet.
20 They have -- because that that particular change
21 necessitates a change in technology, they had to upgrade all
22 the routers connected to the gigabit mesh. The previous
23 router would not accept any technology. And they have
24 upgraded the router that connects to -- they've upgraded the
25 routers that connect both to the commodity and the cable and
1015
1 wireless commodity Internet and the Internet 2 connection.
2 THE COURT: I take it, Mr. Craig, that it is not
3 actually unheard of for students to access the Internet at the
4 University of Massachusetts from computers that are not in
5 their dorm room; right?
6 THE WITNESS: That's correct.
7 THE COURT: It happens in the computer science
8 department from time to time?
9 THE WITNESS: Well, yes. We have an educational
10 laboratory that at the moment has 20 computers that we are
11 keeping and 20 computers that we are throwing out because
12 they're too old and we are planning to upgrade it with a bunch
13 of Linux PCs; however, and there are other facilities on
14 campus where students attach to a particular program, would be
15 able to use the computers directly connected to the Internet.
16 There are also places on campus and I actually ran
17 one when I was a student that are just labs for general use
18 and all you have to have is a student I.D. to be able to sit
19 down at a computer. These are, however, monitor situations.
20 As an example, I have -- I have myself in the past
21 terminated student access to the educational lab computers for
22 resource starvation and what we call misuse of the resources.
23 There was one person who was continually keeping enormous
24 files on a shared disk and preventing other students from
25 completing their classwork because the disk was full with --
1016
1 actually what he was downloading was the Linux source industry
2 at that time. So, it wasn't the content of the -- the use
3 that we found objectionable, it was simply the fact that he
4 was using so much that other people couldn't use the research
5 and, therefore, it was against our policy.
6 THE COURT: O.K. Go ahead, Mr. Hernstadt.
7 BY MR. HERNSTADT:
8 Q. You testified before in response to the judge's questions
9 that the point -- it would not be the 10-megabit switched
10 network in the dorm room that would limit transfer rates, but
11 100-megabit uplink. Has -- is that correct?
12 A. That's actually oversimplifying, and I apologize since it
13 was obviously my fault for the oversimplification. It would
14 most likely be the fraction of the 100 megabit Ethernet that
15 would be the pinch point. At no point in time is a single
16 student going to get more than 10 megabits down or up. We
17 don't do differential upload and download rates.
18 However, more likely, if you have a significant
19 number of people in that 1,400-person dorm that I mentioned
20 using the Internet, it's not going to be their individual
21 10-megabit-per-section connections that's going to limit them.
22 Rather, it's going to be the fact that they have to divide one
23 megabit, that one single 100-megabit Ethernet connection
24 between all of them.
25 And as I said, in a case with 1,400 students, that's
1017
1 significantly less than a fraction of then a
2 10-megabit-per-second link. If you were to assume that 700 of
3 those 1,400 students were using the Internet at one time, you
4 could probably work out the math better than I can.
5 Without a calculator on me, I would guess you'd get
6 less than two megabits per second out of that entire hundred.
7 You'd get less than -- probably less than 500 mg.
8 MR. COOPER: Your Honor, move to strike the last
9 portion of that as speculation, without foundation.
10 THE COURT: It's arithmetic; overruled.
11 Q. And Mr. Craig, based on your knowledge of the University
12 of Mass. network and the upgrades that are being done to it,
13 what would they have to upgrade for to relieve that pinch
14 point?
15 A. They would have to put in -- the problem with relieving
16 that pinch point is that's the best logical place to put the
17 pinch point. We only have 30 megabits per second out to the
18 Internet total, so there has to be a pinch point someplace and
19 it's better not to have it on the incoming router.
20 Particularly since there is a predilection in the
21 administration level to provide better service to, for
22 instance, the computer science department than to the
23 dormitories as a whole because there are researchers in the
24 computer science department who are doing research and
25 collaboration with international figures and they really need
1018
1 that bandwidth.
2 So, it's difficult to answer your question. They'd
3 have to spend a lot of money on a bunch of different places.
4 The network as it is I think is optimized pretty much as well
5 as it can be without spending an enormous amount of money.
6 Q. Are you personally knowledgeable about the Internet access
7 available to consumers in their homes in the area of the
8 University of Massachusetts?
9 MR. COOPER: Foundation, your Honor?
10 Q. And if you are, could you tell us what the basis of that
11 personal knowledge Is?
12 A. Earlier this spring, I gave a talk to the assembled
13 faculty grad students and staff regarding their options as to
14 home access. As you might imagine, it's a very hot topic
15 among computer science professionals, the ability to be
16 connected at all times, and we did, myself and a coworker, did
17 a survey of what was available in the area, what was planned
18 to be available in the area for the next -- for the
19 foreseeable future, in other words, as much information as the
20 local providers were willing to give us, "providers" meaning
21 cable modem providers, DSL providers, the telecommunications
22 companies that are in the area currently.
23 In particular, I focused on cable modems, but we did
24 a great deal of research into DSL available as well, because
25 there are some areas where DSL is available. There are some
1019
1 areas where cable modems are available and there are some
2 areas where both are available and at that point, we had a lot
3 of professors asking us, which should I choose? Which would
4 be better in the long run?
5 Q. And what is the name typically given that to type of
6 network?
7 MR. COOPER: Your Honor --
8 THE COURT: To what kind of network?
9 MR. HERNSTADT: The network of Internet access
10 providers to a locality or a region and in this case, the
11 region around Amherst.
12 MR. COOPER: This is a topic we've never heard from
13 this witness before, never heard about this study, never had
14 it provided to us. I have no reason to believe he has
15 expertise in this area of general network and consumer speed
16 access in the general area around his university. He's
17 certainly not employed in the area and has no apparent
18 expertise.
19 THE COURT: Well, look, I am going to hear what he
20 has to say. But, Mr. Hernstadt, if the point of all this is
21 to suggest that consumers will not have in the foreseeable
22 future adequate bandwidth to upload and download movie files
23 from the Internet, you are sure not going to do it by
24 addressing Amherst, Massachusetts, it's atypical of which as
25 measured against urban markets is perfectly obvious to
1020
1 anybody.
2 MR. HERNSTADT: Actually, the point is slightly
3 different than that.
4 THE COURT: All right. Go ahead.
5 MR. HERNSTADT: O.K.
6 Q. Let me be more specific. The network at the University of
7 Massachusetts is known as a local area network, is that
8 correct?
9 A. That's correct.
10 Q. What is the name given to the network of a region such as
11 around the University of Massachusetts?
12 A. Generally, you wouldn't collectively call that a network.
13 You would call it wide-area networking. It is an
14 implementation thereof, but one doesn't think of local area
15 networking as what you can put in a small defined physical
16 area because there are limits to the lengths of cables in the
17 technologies involved.
18 Specifically, for 100-megabit Ethernet, I believe
19 you're limited to 200-meters total between devices, so between
20 the computer and a switch or a repeater. And you can't really
21 achieve more than five kilometers even using fiber, which is
22 able to span greater distances.
23 You can't really go more than five kilometers between
24 one end point on the network and another end point on the
25 network. So, the technologies for local area networks are
1021
1 very different from the technologies used for wide-area
2 networks. When you start trying to connect --
3 THE COURT: What exactly is wide-area networking as
4 you are using the term?
5 THE WITNESS: Any networking technology used to
6 connect physical places that are not contiguous, that are not
7 close to each other.
8 THE COURT: So, under that definition, ordinary
9 telephone lines are all part of a wide-area network, is that
10 right? Because you can transmit data over them and they are
11 in the physically contiguous locations?
12 THE WITNESS: That would be -- yes, that would be
13 correct.
14 THE COURT: O.K.
15 Q. And did you have -- have you studied wide-area networking
16 in the your course of studies at the University of
17 Massachusetts?
18 A. Not in my course of studies, but as part of research for a
19 consulting client who was wondering about what kind of network
20 connection they should get in to a small business. The
21 difference between a cable modem and the next step up which
22 would be a T1 using frame relay.
23 The T1 using frame relay was, at that point in time,
24 $1,600 a month and a cable modem, which is soon to be
25 available at that time, this was I think a year and a half ago
1022
1 was projected to be $50 a month.
2 THE COURT: Look, Mr. Hernstadt, if you want to
3 elicit from him what he found out when he went around and
4 asked people what kind of connections they could get in
5 Amherst, Massachusetts ask him. If you want to qualify him on
6 this subject --
7 MR. HERNSTADT: Actually, two or three more questions
8 on this subject.
9 THE COURT: All right.
10 Q. As a result of your research, did you learn the costs of
11 how much it would cost to upgrade wide-area networking?
12 MR. COOPER: Objection, your Honor; foundation.
13 THE COURT: I don't understand what that question
14 means. I mean, by his definition, one possible answer to that
15 is what it would cost to replace all the telephone wires in
16 that part of the country. What does it mean?
17 MR. HERNSTADT: O.K. I can use -- take a few more
18 questions and be a little bit more specific.
19 Q. In conducting your research into the Amherst region, as
20 you described before, did you learn the types of equipment
21 that were used in the Amherst region to provide Internet
22 connections to the consumers there?
23 A. Yes.
24 Q. And -- I'm sorry, well --
25 A. You can basically divide them into two categories, those
1023
1 that are delivered by telephone and those that are delivered
2 by other wires into the house, well, a cable into the house.
3 Everyone needs some way to get the information into
4 and out of the house in order to provide service. The focus
5 in the industry has been on wires that already exist in the
6 house, which basically means cable, telephone, and power, I
7 suppose.
8 The power technology really doesn't seem to have gone
9 anywhere. The cable and telephone solutions have reached a
10 point where any improvements in their service is limited by
11 the physical characteristics of the wires into the house. So,
12 in order to upgrade any of the -- the rates that you can now
13 get with a cable modem over the DSL connection, the person
14 providing the service would have to pull new wires, which
15 seems to be something that everybody is trying to avoid.
16 Q. And in the course of your research --
17 MR. COOPER: Move to strike that last comment as
18 plainly without foundation.
19 THE COURT: Yes, I'm striking it. I simply do not
20 accept this gentleman as an expert on this subject. So,
21 whatever opinion testimony he's giving, it's useless.
22 MR. HERNSTADT: I'm not asking for his opinion
23 testimony. I'm asking for what his research revealed to him
24 and specifically in terms, the next question I'm going to ask
25 is what did he learn -- did he learn in his research about the
1024
1 cost of upgrading the types of networks that he just described
2 in comparison with the cost of upgrading a local --
3 THE COURT: As I told you, if you want him to tell
4 you what Southern New England Tel. or whatever it is out there
5 told him what it costs to put in a T1 line, I'll let you ask
6 him that, but your questions are less focused.
7 MR. HERNSTADT: I'll move on. May I approach the
8 witness?
9 THE COURT: Yes.
10 Q. Mr. Craig, I've handed you Defendant's Exhibit BDT. Could
11 you look at it and identify it, please.
12 A. Yes, this is a declaration that I wrote regarding some of
13 the claims made in the Shamos declaration, I believe the
14 second Shamos declaration.
15 Q. Shamos or the --
16 A. I'm sorry; Schumann. My apologies.
17 Q. And this is your declaration, is that correct?
18 A. This is my declaration, that's correct.
19 Q. And does this set forth experiments that you personally
20 undertook?
21 A. Yes, it does.
22 Q. And is everything in this declaration a description of
23 acts that you personally undertook?
24 MR. COOPER: Objection, your Honor.
25 Is the intent to submit this as the witness'
1025
1 testimony by having him affirm the truth of it?
2 THE COURT: I don't know.
3 MR. HERNSTADT: This is a declaration that sets forth
4 experiments that Mr. Craig conducted regarding transfer rates
5 available on the University of Massachusetts. Rather than
6 walk him through it, I would offer this into evidence and I'm
7 trying to establish that this is a factual statement of acts
8 that he undertook himself.
9 THE COURT: So, I guess the short answer is, yes, Mr.
10 Cooper.
11 MR. COOPER: I object to the form. It's also without
12 foundation.
13 THE COURT: What's wrong with the form?
14 MR. COOPER: To begin with, your Honor, I believe
15 that it is obviously compound and I think that if a proper
16 foundation were attempted to be laid, we would find that the
17 conclusions are based on a variety of assumptions for which
18 there is no factual basis.
19 THE COURT: Well, you can cross-examine.
20 Now, what is the other objection? You said you have
21 two objections. One was form and I asked you about form, and
22 you told me. What was the other one?
23 MR. COOPER: Foundation.
24 THE COURT: Overruled.
25 I'm going to receive this. The points counsel makes,
1026
1 they can cross-examine.
2 MR. HERNSTADT: Thank you, your Honor.
3 (Defendant's Exhibit BDT received in evidence)
4 Q. Mr. Craig, do you know what DeCSS is?
5 A. Yes, I do.
6 Q. Have you ever used DeCSS on a DVD?
7 A. No.
8 Q. Do you know what DiVX is?
9 A. Yes, I do.
10 Q. Have you ever used DiVX on a DVD?
11 A. No, I have not.
12 Q. Have you ever made a movie available on the Internet for
13 uploading?
14 A. No, I have not.
15 Q. Have you ever downloaded a movie from the Internet?
16 A. No, I have not.
17 MR. HERNSTADT: Thank you very much, Mr. Craig.
18 THE COURT: All right. Thank you, Mr. Hernstadt.
19 Mr. Cooper?
20 CROSS-EXAMINATION
21 BY MR. COOPER:
22 Q. Good morning, Mr. Craig.
23 A. Good morning.
24 Q. You have no job responsibility for the portion of the
25 University of Massachusetts network that involves the
1027
1 dormitories; correct?
2 A. That's correct.
3 Q. Your job responsibilities are limited to that portion of
4 the computer system which is contained within the computer
5 science department; correct?
6 A. More or less, correct. I would add that I also support
7 professors and students who are connecting from other places.
8 So, to that extent, I would say that I support more than just
9 the network contained within our department.
10 Q. And your direct responsibility by definition of your job
11 description is limited to the computer science, computer
12 system; correct?
13 A. That's correct.
14 Q. Now, again, your declaration, Exhibit BBT, could you
15 please turn to paragraph 4 on page 2. You refer in that
16 paragraph to certain tests you conducted; correct?
17 A. That's correct.
18 Q. Now, those tests did not actually involve any downloads
19 from the Internet; correct?
20 A. No, that's not correct. The first --
21 Q. Let me understand. You used certain T1 and 10-megabit and
22 100-megabit lines in your experiment; correct?
23 A. That's correct.
24 Q. And you adjusted the speed at which some of those lines
25 operated in order to simulate certain speeds that you expected
1028
1 to receive in connection with downloads; correct?
2 MR. HERNSTADT: Objection to the form of the
3 question.
4 THE COURT: Overruled.
5 A. I adjusted one of the tests to simulate a 10-megabit
6 connection. That test is listed as subparagraph B of that
7 paragraph.
8 Q. Where did you get the files that you actually downloaded?
9 A. I created them.
10 Q. And where were those files taken from when you downloaded
11 them?
12 A. I should make a distinction here in test A, I did not do
13 the downloading. I offered for downloading and a
14 co-conspirator, if you will, a fellow by the name of Sean
15 Standish downloaded over the Internet from me.
16 Q. And in the second test, paragraph 4B, there was no
17 download from the Internet at all; correct?
18 A. That was downloaded from a computer on our network to
19 another computer on our network.
20 Q. So, it doesn't reflect any Internet download speeds?
21 A. It reflects download speeds within a local area network
22 which was what I was trying to address with that test.
23 Q. But it doesn't reflect any actual experience on the
24 Internet; does it?
25 A. For B, it does not; that's correct.
1029
1 Q. And the same is true for C; is it not?
2 A. That is correct.
3 Q. And the same is true for D; is it not?
4 A. That is correct.
5 Q. And all of those speeds as to which you testified in B, C
6 and D of paragraph 4 of your declaration are created by,
7 assuming certain decreases in the maximum potential download
8 speed from the systems you were using; correct?
9 A. I'm sorry. I don't think I understand your question.
10 Q. Well, do I understand correctly that there were certain
11 assumptions built into your laboratory process as reflected in
12 B, C and D?
13 A. I -- perhaps you can identify assumptions that you think I
14 made. I'm not certain what you're asking.
15 Q. Well, actually your declaration doesn't explain how it is
16 that you generated the particular speeds that you did generate
17 and since they weren't on the Internet, I'm asking you what
18 assumptions went into the process that resulted in the speeds
19 that you did generate?
20 A. How do you refer to generating speeds? Are you talking
21 about the speeds of the cables and switches which I put in
22 between?
23 Q. Yes.
24 A. Those are described in Exhibit 1.
25 Q. And you constructed those for purposes of this laboratory
1030
1 experiment, is that correct?
2 A. No, I used what was available on our local area network.
3 The only exception is 4B where in order to simulate a slower
4 lab, I downgraded a switch -- downgraded a port on a switch.
5 Q. And for each of these experiments, have you downloaded a
6 650 megabyte file rather than the 1.5 gigabyte file, the
7 actual download times would have been substantially less;
8 correct?
9 A. Probably.
10 Q. Do you know what those download times would have been for
11 a 650 megabyte file at even the speeds that you created in
12 this laboratory environment?
13 A. I don't know off the top of my head, but if you want, I
14 can take out a calculator. Would you like me to do that?
15 Q. Let's see if it makes sense for me to suggest some times
16 for you and you can tell me if it sounds about right.
17 THE COURT: Well, is the relationship linear,
18 Mr. Craig?
19 THE WITNESS: The reason I chose a file size that
20 charge was to eliminate any possibility of there being a
21 relationship between the file size and an increasing or
22 decreasing rate of return. So, yes, the relationship should
23 be linear.
24 Q. It's a constant relationship?
25 A. More or less. It's -- it would be expressed in a function
1031
1 with a constant, if you will.
2 Q. Does the percentage difference that you would receive
3 downloading a 650 megabyte file, as opposed to a 1.5 gigabyte
4 file equal 43.3 percent?
5 A. Wouldn't equal it. It would probably be 43. -- I'm
6 assuming without doing the math in my head that that's the
7 percentage of 650 megabytes to 1.5 gigabytes.
8 Q. So, the answer is yes? That sounds right?
9 A. If we stipulate that that's the mathematics of it, then it
10 would be that percentage, plus a certain constant for
11 overhead, probably something like 5 percent, between 2 and
12 5 percent.
13 Q. That's a constant for overhead?
14 A. Yes.
15 Q. And how do you arrive at a constant for overhead?
16 A. There is a certain amount of data that has to be sent with
17 each packet and even though you can put a lot of data into a
18 single packet, you have to increase it by a constant for the
19 length of the packet.
20 Q. So that an amount of the overhead would actually be higher
21 for a 1.5 gigabyte file than it would be for a 650 gigabyte
22 file?
23 A. No, the amount of the overhead would be higher for the 650
24 megabyte as a percentage of the total transfer.
25 Q. Total time would still be reduced by the reduced number of
1032
1 packets; correct?
2 A. Well, I think I understand what you're saying and the
3 answer is probably yes, but packets are not a unit of time.
4 So, I agree with you, but that's not quite how you phrased the
5 question.
6 Q. You mentioned in paragraph 4D that your experiment in the
7 laboratory using 100-megabit-per-second networking using your
8 view, the "absolute best case possible scenario"; correct?
9 A. That's correct.
10 Q. You're aware, are you not, that the new Abilene network
11 that has been developed for major universities is running at
12 2.4 gigabits-per-second speeds?
13 A. That speed is not what you can attain in between
14 individual computers, however.
15 Q. No, but it is the new state of the art used at
16 universities rather than 100-megabit-per-second network;
17 correct?
18 A. I don't think it's used at any university other than
19 Abilene and its partners, so.
20 Q. Do you have any idea who those partners are now?
21 A. I do not.
22 Q. Does 37 sound about right to you?
23 A. I do not have an idea.
24 MR. COOPER: No further questions, your Honor.
25 THE COURT: Let me follow up on one thing.
1033
1 In the supplement to your declaration, you list in
2 the source computer several of the components, including SCSI
3 busts?
4 THE WITNESS: That's correct.
5 THE COURT: And what I take to be the hard disks,
6 both the system and the data disks have 40-megabyte-per-second
7 transfer rates. Are there faster components for those
8 functions? Are there faster SCSI busts and hard drives?
9 THE WITNESS: There are.
10 THE COURT: How much faster?
11 THE WITNESS: The fastest SCSI bust I've actually
12 seen was on a very expensive computer and we are not talking
13 actually about technology that's limited by the speed of the
14 disks, but rather by the speed of the controller that uses
15 several disks to increase speed and that was 80 megabytes per
16 second.
17 THE COURT: And these components that are rated at
18 40-megabytes components that limit the speed of the transfers
19 in your tests?
20 THE WITNESS: 40 megabytes per second is still much
21 faster than 100 megabits per second. So, I would say no.
22 THE COURT: All right. Mr. Hernstadt, anything else?
23 MR. HERNSTADT: A couple of questions, your Honor.
24 REDIRECT EXAMINATION
25 BY MR. HERNSTADT:
1034
1 Q. Mr. Craig, Mr. Cooper asked you about the speeds that you
2 created. Did you create any transfer speeds in the experiment
3 contained or described in your declaration?
4 A. I used what was available to me in a typical large local
5 area network installation with a lot of high-speed networking.
6 I did not specifically create any connection speeds with the
7 exception of, I think it was 4B, where in order to simulate a
8 slower network, I set a port on a switch to negotiate at 10
9 megabits per second, rather than 100.
10 MR. HERNSTADT: Thank you very much, Mr. Craig.
11 I have nothing further, your Honor.
12 THE COURT: Mr. Cooper?
13 MR. COOPER: Nothing further, your Honor.
14 THE COURT: Thank you, Mr. Craig.
15 (Witness excused)
16 THE COURT: Next witness, please?
17 (Continued on next page)
18
19
20
21
22
23
24
25
1035
1 MICHAEL EINHORN,
2 called as a witness by the Defendant,
3 having been duly sworn, testified as follows:
4 DIRECT EXAMINATION
5 BY MR. GARBUS:
6 Q. Mr. Einhorn, describe your educational background.
7 A. I received a BA in economics summa cum laude from
8 Dartmouth in 1974 and a Ph.D. from Yale University in 1981 in
9 economics.
10 Q. Did you also receive a masters from Yale?
11 A. In 1976.
12 Q. And can you tell me something about your work background.
13 A. Since receiving my Ph.D., I worked at Bell Laboratories as
14 a member of their technical staff. I've been Assistant
15 Professor at Rutgers University. I worked for six and a half
16 years in the Antitrust Division of the U.S. Department of
17 Justice, and two years, two and a half years at Broadcast
18 Music, Incorporated.
19 I'm now a research fellow at Columbia University, and
20 I'll be joining the faculty as a visiting professor of William
21 Patterson University, which is a school in New Jersey that has
22 a music management department, the only one of three in the
23 U.S., and I am negotiating as an adjunct at Columbia this year
24 as well.
25 Q. Have you ever testified in a court before?
1036
1 A. No, just in small claims court.
2 Q. Are you being compensated for your work?
3 A. I'm working pro bono.
4 THE COURT: We're not going to go into that.
5 Q. You're not an expert in small claims. Okay. You work for
6 pro bono. Can you tell me something about your publications.
7 A. I published, I think, about -- I didn't count them up --
8 maybe 40 to 50 publications. My areas of specialty generally
9 can be called applied microeconomics. Microeconomics can deal
10 with a number of issues, including public utility regulation,
11 antitrust, general market conditions, and intellectual
12 property. I have either published in or spoken in or
13 submitted papers in all of those areas.
14 Q. Can you tell me what materials you have read prior to your
15 testimony here today concerning the issues in this case?
16 A. Most importantly, I've read a number of declarations.
17 I've read Franklin Fisher's deposition. I read Franklin
18 Fisher's declaration. I've done a thorough literal search of
19 all the articles bearing on the topics of copying and piracy.
20 I visited the website of Charles River Associates. I
21 went to the Department of Justice and looked through their
22 antitrust guidelines on intellectual property, and I read a
23 number of Law Review articles that I felt were related to
24 copyright.
25 Q. Have you done any independent empirical studies on your
1037
1 own with respect to DVDs or the loss of sales, any particular
2 studies since we've actually come into this case?
3 A. I've done no empirical studies.
4 Q. You mentioned Charles River Associates. Can you give me
5 some of the names of people whose articles you have read?
6 A. In particular, in the course of my involvement in
7 intellectual property, there were three people in the course
8 of my career whom I became aware of at Charles River
9 Associates and who are personal associates of mine,
10 professional associates of mine who work in the area of
11 intellectual property.
12 Those three people are Stanley Besen, John Woodbury
13 and Steve Salop. S-a-l-o-p. Besen, B-e-s-e-n. Besen, in
14 particular, is described by Charles River Associates as a
15 nationally renowned expert on intellecutal property on their
16 website.
17 Q. And you know that Mr. Fisher is with Charles River
18 Associates?
19 A. He is the chairman.
20 Q. Have you read articles by any of those three?
21 A. In particular, Mr. Besen. I've also read one by
22 Mr. Solomon a while ago, but Mr. Besen -- when I said I did a
23 literal search on the topic of copying in piracy, I didn't
24 survey all the articles that could have been written by the
25 Charles River people on this topic. I stayed specifically
1038
1 within the area of copying and piracy and found two that
2 Mr. Besen had his name on. I'm sorry. Conceivably three.
3 Q. Let me just ask you, I'm going to read to you a sentence
4 from the Fisher affidavit and I ask you to comment on it and
5 give us your opinion on it.
6 It's paragraph 8. It says: "The availability of
7 unauthorized copies of feature length films on the Internet
8 would have a considerable, negative financial and market
9 impact on the major motion picture companies." May I have
10 your opinion on that?
11 A. If that availability were made free of charge, with equal
12 quality and equal amount of time necessary, there could be
13 truth to that, but the comment, as it relates to this case, is
14 entirely hypothetical because he's ignoring issues that are
15 very much related to the kind of unauthorized reproduction
16 that we're talking about here.
17 Q. And what are these other issues?
18 A. Well, in particular, I measure three. Number one is
19 quality. He doesn't own up to the possibility that the kind
20 of DiVX downloads that we're talking about will be far
21 inferior to the DVD movies that one can get with high
22 definition. That's number one.
23 Number two is he ignores the time that's required to
24 make these DVDs pirated moves. There are two issues in time
25 that I see. First of all, as Mr. Shamos has pointed out to
1039
1 us, one has to go about in the current market now preparing a
2 DiVX to trade with somebody else. That takes a certain amount
3 of investment in one's time to put that trading material
4 together.
5 But more important right now, if a DVD has,
6 hypothetically, 6 gigabytes on it, which I'm led to believe is
7 the reasonable size of a DVD right now, and one has a 56
8 kilobit modem, which is what maybe 90 to 95 percent of the
9 population has right now, it will take you over 200 hours to
10 download a DVD onto your hard drive. Finally, a hard drive
11 only has -- my hard drive only has 28 gegabits, and a DVD has
12 up to 6 or 8. That's taking up an awful lot of hard drive.
13 Or another issue related to this that Mr. Fisher
14 doesn't talk about are the costs. If you decide to put it
15 onto a blank DVD, right now the cost of a blank DVD exceed
16 those -- the necessary tape requirements and the cost of that
17 blank tape exceed the costs of buying the tape flat out. It's
18 cheaper for me just to buy the tape with the movie on it.
19 furthermore, the minimum -- from the testimony I've
20 read about and heard about, the minimum cost of a burner,
21 which is necessary to burn the movie into a blank DVD, is
22 $500. That's Mr. Shamos saying that. Someone else testified
23 at $5,000.
24 So there are three major issues. There's a bad
25 quality. There's the amount of time that it takes, and
1040
1 there's the cost of the equipment.
2 THE COURT: Did you ever look at a movie that was
3 decrypted with DeCSS?
4 THE WITNESS: I have not.
5 THE COURT: You're the expert on quality? Go ahead,
6 Mr. Garbus.
7 MR. GARBUS: He didn't say that at all. He said
8 quality is a factor. He didn't say he was an expert on
9 quality, and he wasn't produced as an expert on quality.
10 THE COURT: Do you have any more questions, Mr.
11 Garbus?
12 BY MR. GARBUS:
13 Q. What does Mr. Besen say, if you recall, of the overall
14 effect of copying on sales?
15 MR. SIMS: Objection.
16 THE COURT: Sustained.
17 Q. Are there any other factors to take into account? Did you
18 read the affidavit of Mr. Kurlantzick?
19 MR. SIMS: Objection. Which question is he asking
20 for an answer to?
21 THE COURT: Sustained as to form.
22 Q. Did you read the affidavit of Mr. Kurlantzick?
23 A. I read the affidavit of Mr. Kurlantzick.
24 Q. And do you have an opinion with respect to it?
25 MR. SIMS: Objection.
1041
1 THE COURT: Sustained.
2 Q. Let me show you the affidavit of Mr. Kurlantzick, and I
3 address your attention to paragraphs 3 and 4 of the affidavit.
4 THE COURT: What exhibit is this?
5 MR. SIMS: It's not an exhibit, your Honor, that I'm
6 aware of. Mr. Kurlantzick was offered by them in pretrial
7 proceedings for deposition. We took his deposition, and we've
8 heard no more.
9 MR. GARBUS: Your Honor, that's not so. We heard
10 Mr. Fisher being cross-examined on Mr. Kurlantzick's
11 affidavit.
12 THE COURT: Mr. Garbus, if you have a question,
13 please put it.
14 BY MR. GARBUS:
15 Q. I show you paragraphs 3 and 4 of Mr. Kurlantzick's
16 affidavit, and I ask you whether or not you agree or disagree
17 with the opinions expressed therein?
18 THE COURT: Objection sustained. If you want to ask
19 him for his opinion, ask him for his opinion, but not about
20 somebody else's article or somebody else's affidavit in this
21 way. There is a hearsay rule, Mr. Garbus. If you wanted to
22 call Mr. Kurlantzick, you should have called Mr. Kurlantzick.
23 MR. GARBUS: Your Honor, we had a discussion during
24 Mr. Fisher's examination, and they wanted to ask questions off
25 the Kurlantzick affidavit, and they asked questions off the
1042
1 Kurlantzick affidavit. There was dialogue there about that,
2 and he was permitted to do it.
3 THE COURT: Mr. Garbus, I'm not stopping you from
4 asking this witness questions about opinions he may have
5 formed concerning issues relevant in the case.
6 BY MR. GARBUS:
7 Q. Do you have an opinion on the question of positing
8 one-to-one ratios between acts of copying and displaced sales?
9 A. Yes, I do.
10 Q. What is that opinion?
11 A. I think it is theoretically unjustified by economic theory
12 to suggest that there is a one-to-one relationship between a
13 sale of a good at hypothetically zero price and a displacement
14 of a "legitimate" good at a higher price.
15 Q. And can you tell me how this, in your opinion, applies to
16 the whole question of DVDs?
17 MR. SIMS: Objection.
18 THE COURT: Overruled.
19 A. There are two things that one must consider in the DVD
20 issue. First of all, one must identify the costs associated
21 with using the DVD. That's issue number one.
22 And number two, if, indeed, DVDs are determined to
23 have lower prices than legitimate movies or original movies,
24 then one must also recognize that many of the sales of DVDs
25 that take place at hypothetically -- hypothetically zero
1043
1 dollars or one dollar would not have ensued at a higher price
2 of $25.
3 That's what the one-to-one -- that's why the
4 one-to-one rule is not a theoretically justified rule because
5 there is no direct correspondence.
6 Q. Can you tell me what the impact of the rental DVD is on
7 this?
8 A. Yeah; I certainly shall. What happens now in the United
9 States is most of the home video market, of course, is video
10 cassettes. I'd say in the U.S. last year consumers spent
11 about $41 billion on movies, on watching movies on television,
12 the box office and from video cassettes and DVDs.
13 Of that $41 billion, about $18 billion was spent on
14 video cassettes and a small $1 billion was spent on DVDs. In
15 that video cassette market, over half, 60 percent, was spent
16 on rentals. What happens, as we know, is rentals are the main
17 factor in the video cassette market.
18 What I'm surprised at -- what we need to do is
19 establish if there's going to be piracy or illegitimate
20 copying, we have to consider that the pirate or the copier is
21 going to consider all the costs of alternative ways of getting
22 his or her hands on the movie. This includes not only buying
23 a DVD at $25.
24 It will include -- as we have the build-out of the
25 DVD players that right now are not yet built-out, it will
1044
1 include in the infrastructure, also, the rental industry.
2 Right now, the average video cassette in the U.S.
3 last year rented for $2.78. So if I want, I can go into
4 Blockbuster, my Blockbuster, on Monday, Tuesday and Wednesday
5 and get two movies or the price of one. So you may be talking
6 here about $1.39. Furthermore, the price of video cassettes,
7 the real price of video cassettes has fallen -- real price,
8 adjusted for CPI -- has fallen 25 percent -- this is for
9 rentals -- for rentals has fallen 25 percent since 1986.
10 MR. SIMS: Objection. Move to strike. Lack of
11 foundation.
12 THE COURT: Overruled.
13 Q. Go ahead.
14 THE COURT: Mr. Garbus, your previous point on
15 reviewing my notes was well taken. I did allow the other side
16 to ask a question on Kurlantzick's affidavit because you said
17 you would call substantially equivalent testimony. If you
18 want to do so, you may do so.
19 THE WITNESS: Can I answer?
20 THE COURT: I thought you were finished.
21 THE WITNESS: I'd like to go a little more if I may.
22 I'm almost done.
23 BY MR. GARBUS:
24 Q. Go ahead, sir.
25 A. So what we have to do here is consider when people talk of
1045
1 piracy and when this is going to take place, hypothetically
2 five years out into the future when everyone has got the broad
3 band equivalent of what they don't have now at their modem,
4 five years from the future, anyone who wants to pirate is
5 going to have the opportunity to go in and making my
6 projections, I'd say buy that -- they can go in and rent a
7 DVD. If they can get a video cassette now at $2.78, okay, and
8 that rate is falling over real time due to -- because it
9 doesn't keep up with inflation, it's conceivable they can get
10 this thing for about two bucks.
11 So if you want to talk about piracy, let's just bear
12 in mind there's another kind of technology out there that
13 hasn't even been mentioned by Mr. Fisher or anybody whose
14 declaration that I have read, and that is, is this piracy
15 going to be cost effective to people who can go to video
16 stores and pop these movies for five days for two bucks.
17 Q. Let me ask you this. I want you to assume -- and this is
18 very obvious -- that there are Linux operating systems that
19 also could use DVDs. Does that widen the market for DVDs?
20 A. Yes, it does.
21 Q. And what are the possible consequences of that?
22 A. The very important thing to recognize about the video
23 cassette market, the home rental market over the past 12 years
24 is that it has been driven by the growth, the saturation, the
25 penetration of the video cassette recorder at home. And I've
1046
1 got some numbers here that will substantiate that.
2 Q. Tell us what they are.
3 A. Okay. Remember I said that the rental price has fallen in
4 real terms 25 percent since 1986. That's the rental price.
5 The sale price of a video cassette has fallen since
6 1986 by 60 percent. Despite the fact the real rental price
7 has fallen and the real sale price -- by "real" I mean
8 consumer price index adjusted. Despite the fact that both of
9 those sales prices have fallen, total spending in the video
10 cassette market has gone up by over 200 percent.
11 Why? Because the VCR has built out. We've gone up
12 from 30 million homes to 85.9 million homes. What is
13 happening here is the American consumer buys the VCR, and the
14 reason why they keep buying the VCR is because there's a
15 build-out of cheaper movies for them to get their hands on and
16 more movies to get their hands on.
17 And by enabling people to get their hands on movies
18 that are falling in price and more and more movies, the VC
19 market has grown out because of the growth -- I'm sorry, the
20 video cassette market has grown out because of the increased
21 penetration of the VCR.
22 Q. And what is the benefit to the consumers if you have,
23 let's say, Linux players out there playing DVDs that people
24 purchase?
25 MR. SIMS: Objection; irrelevant.
1047
1 THE COURT: Sustained.
2 Q. Do you have any opinion on what the effect would be on the
3 price of DVDs if Linux players were out there?
4 MR. SIMS: Objection, your Honor. Irrelevant.
5 THE COURT: Sustained.
6 Q. Now, have you looked at the Microsoft decision in the
7 Microsoft case?
8 A. I have looked at it.
9 Q. And do you have any opinion between the question of the
10 strength of an operating system and the availability of
11 applications and its consumer period? Go ahead.
12 MR. SIMS: Objection.
13 THE COURT: Sustained.
14 Q. Do you have any experience or any knowledge of the
15 relationship between anything you had at the Department of
16 Justice, between the strength of an operating system and the
17 availability of application?
18 MR. SIMS: Objection.
19 THE COURT: Sustained.
20 Q. Now, can you tell me any other benefits that you can see
21 from consumers having an open-source system such as Linux?
22 MR. SIMS: Objection.
23 THE COURT: Sustained.
24 MR. GARBUS: I think I may be through, your Honor.
25 Thank you very much.
1048
1 THE COURT: Thank you, Mr. Garbus. Mr. Sims.
2 MR. SIMS: Your Honor, can we take a mid-morning
3 break now.
4 THE COURT: All right. 15 minutes.
5 THE DEPUTY CLERK: All rise.
6 (Recess)
7 (In open court)
8 THE COURT: Okay, Mr. Sims, cross-examination.
9 MR. SIMS: Thank you, Judge.
10 CROSS-EXAMINATION
11 BY MR. SIMS:
1049
24 Q. Is it your view, Mr. Einhorn, that motion pictures created
25 by the plaintiffs are public goods?
1050
1 A. No; they are not.
2 Q. Okay. Thank you. Now, you made no study of consumer
3 behavior in connection with this matter, correct?
4 A. I have yesterday reviewed some data on consumer behavior
5 in the video cassette market. I do not have, at this point,
6 enough information in my hands to study consumer behavior in
7 the DVD market.
8 Q. You would agree with me, sir, that your ability as an
9 economist doesn't help you at all in assessing the likelihood
10 that DeCSS on defendants' website may lead to copying of
11 plaintiffs' motion pictures from DVDs?
12 A. I am an economist, and I do not purport to understand the
13 workings -- the technical workings of DeCSS. I can only point
14 out the factors that should be considered to make an economic
15 decision.
16 Q. So the answer to my question is yes?
17 A. Yes.
18 Q. Now, are you aware of Steven King's recent decision to put
19 a novella on the Internet on -- strike that. Are you aware
20 of Steven King and Simon and Shuster's experiment earlier this
21 year in delivering a Steven King Gnutella over the Internet?
22 MR. GARBUS: Objection.
23 THE COURT: Where is this going, Mr. Sims?
24 MR. SIMS: I'm asking him since he opined on what he
25 sees as a reason to or not to copy, whether he is aware of
1051
1 Mr. King's objection on television that he was amazed that
2 lots of hackers spent 48 hours trying to hack into a system in
3 which his novel was available for $2.50.
4 THE COURT: Sustained.
5 MR. GARBUS: Sorry Mr. Sims wasn't under oath for
6 that.
7 THE COURT: We can do without those comments.
8 MR. GARBUS: I'm sorry. I apologize.
9 BY MR. SIMS:
10 Q. Mr. Einhorn, you testified, I think, that you saw no
11 one-to-one relationship between copying and sales
12 displacement, correct?
13 A. That's correct.
14 Q. You would agree though, wouldn't you, that the motion
15 pictures studio's development of a market on the net for
16 digital delivery of their own motion pictures may be thwarted
17 by the presence of unauthorized reduced-costs product?
18 A. I'm sorry. Can you repeat the question again, please.
19 Q. Yes. You would agree, wouldn't you, that the motion
20 picture studio's development of a market on the Internet for
21 digital delivery of their own motion pictures will be thwarted
22 by the presence of unauthorized reduced-costs product?
23 MR. GARBUS: I object to the question. "Will be
24 thwarted" is speculative.
25 THE COURT: In that form, yes. Sustained.
1052
1 Q. You would agree, wouldn't you, sir, that the motion
2 picture studio's development of a market on the net for
3 digital delivery of their motion pictures may be thwarted by
4 the presence of unauthorized reduced-costs product?
5 MR. GARBUS: I object to it.
6 THE COURT: Sustained as to form. Why don't you try
7 may be affected adversely.
8 Q. Would you agree, sir, that the motion pictures studio's
9 development of a market on The internet for digital
10 delivery --
11 MR. GARBUS: I think I would object to it unless it
12 was the same market.
13 THE COURT: I don't understand your objection, sir.
14 MR. GARBUS: As I understand the question we're not
15 talking about DVDs. We're talking about delivery of movies on
16 the Internet. It's a different market.
17 THE COURT: Overruled.
18 BY MR. SIMS:
19 Q. Do you understand the question, Mr. Einhorn?
20 A. No, I'm sorry, because -- please repeat it.
21 Q. I'll do it again. You would agree, wouldn't you, that the
22 motion picture studio's development of a market on the net for
23 digital delivery of their motion pictures may be adversely
24 impacted by the presence of unauthorized reduced-costs
25 product?
1053
1 A. There's a very important word -- there's a very important
2 word you used there, "reduced costs." It's essential that we
3 understand that when I answer your question here, I'm talking
4 here about a hypothetical market where costs are, indeed,
5 reduced.
6 Now, I would agree that if there were a reduced --
7 reduced-cost technology that is able to offer movie content at
8 reduced costs, I would agree that could adversely affect the
9 studios. However, the measurement of costs is a very serious
10 matter in economics. In fact, that's our bread and butter.
11 Economics is a science of benefits and costs accurately
12 measuring each and determining an optimum position that trades
13 them off. All costs must be considered if we're applying your
14 paradigm to any one market.
15 Q. Let me turn to page 84 of your deposition taken last week.
16 A. I'm going to need to see it because I don't have it in
17 front of me.
18 Q. I'll read the following question and answer:
19 "Q. As a matter of economic theory, do you agree with the
20 statement made in paragraph 9 of the Fisher declaration that
21 any expectation that the film companies have to develop a
22 legitimate market on the Internet for the delivery of their
23 films will be significantly thwarted by the presence of
24 unauthorized product available at little or no charge to the
25 consumer?"
1054
1 An objection from Mr. Hernstadt to form and
2 foundation.
3 "A. I'd rather say could instead of will. I think there is
4 certainly a possibility that is true."
5 Was that testimony truthful, sir?
6 A. You have reflected what I said on the issue.
7 Q. Now, from the viewpoint of economic theory as you
8 understand it, am I correct that the availability over the
9 Internet of unauthorized decrypted copies of a blockbuster
10 like Matrix would likely adversely impact the revenues for
11 that film?
12 A. This is a question that was asked at the deposition, and
13 it's very essential and important for me to understand what
14 "over the Internet" means, okay. When we talk about "over the
15 Internet," let me -- when I hear the words "over the
16 Internet," how I imagine what that phrase could mean is a
17 realtime streaming application that is scheduled. So that at
18 9 o'clock in the evening on Sunday evening, I could go, read
19 my video guide or whatever I read for my movies, and
20 understand that at 9 o'clock, I will get a streamed, realtime
21 movie that will show me the Matrix.
22 And in that instance, I would agree that if someone
23 can stream that movie at me, that can conceivably displace
24 other sales of that movie. But while we talk about over the
25 Internet, once again, like everything else, we need some
1055
1 specificity. Realtime streaming is not the same thing as
2 downloading, and down loading in an hour is not the same thing
3 as downloading at 300 hours.
4 So what I'm asking for me is some specificity. In
5 the abstract, I agree. In the abstract, I would agree that
6 movies over the Internet -- and what I'm thinking about here
7 is realtime streaming -- present that danger. I shouldn't say
8 danger because I think the movie studios will be doing it
9 themselves, but would present that issue of -- of an
10 application that could lead people to say, look, we don't have
11 to bother to go to the theatre because at 9 o'clock, it's on
12 tonight, and it's on in the same full quality that we have
13 right now.
14 Q. And do you believe, sir, that the impact, adverse impact
15 on blockbusters like Matrix would be seen in the box office,
16 as well as in the home video market? Correct?
17 A. Once again, we're talk about hypothetical. I would agree
18 that movies over the Internet, in certain formats, could
19 affect blockbuster sales in the movie theatre or at the -- in
20 any number of different windows. Movies over the Internet
21 being taken to mean, as I said, a realtime streaming
22 technology.
23 Q. Now, finally, your testimony on direct, as I understand
24 it, is that as a matter of economics, you don't see why there
25 would be a market for DVD piracy when it's pretty cheap to
1056
1 rent a DVD? Is that essentially what you were testifying to?
2 A. I didn't say that.
3 THE COURT: The witness can answer.
4 A. I didn't say that. What I said is this, I said to do an
5 economic analysis -- and this point has been sustained in
6 economic research for the past 15 years. It's been said by a
7 number of researchers, and it's been said by Stan Besen in
8 print, okay. I read through this literature, and I saw what
9 other economists say.
10 What economists say is you've got to do lots of
11 research. You have to understand the facts. You've got to
12 understand the nature of technology. You've got to understand
13 quality. You've got to understand time, okay. Now, in the
14 course of these things, in understanding them, certain
15 outcomes can go one way or the other, but you've --
16 I'm sorry. Can you -- I missed the second half of
17 your question.
18 MR. SIMS: Can you reread the question, please.
19 (Record read)
20 A. Thank you so much. I'm not making any predictions about
21 piracy or not. What I'm calling for here is some kind of
22 evidence to go beyond a step. I can't even talk about that
23 stuff because I haven't seen anything that would meet the
24 criterion that my profession has established as necessary
25 criterion to analyze piracy and copyright issues.
1057
1 Q. Now, you came out earlier with many statistics. What's
2 the cost, as you understand it, of renting a VHS from a store
3 like Blockbuster?
4 A. My understanding right now is that 95 percent -- by VHS,
5 you mean --
6 Q. VHS, a video cassette from Blockbuster. How much does it
7 cost to rent?
8 A. The average is $2.78.
9 Q. And are you aware of the size of the market for video
10 cassette piracy in the United States?
11 A. No, I'm not.
12 Q. Do you believe, sir, that individuals want to possess
13 copies of films in various formats and not merely see them
14 streaming?
15 MR. GARBUS: I object to this.
16 THE COURT: Pardon me.
17 MR. GARBUS: I object.
18 THE COURT: Sustained.
19 MR. SIMS: No more questions, your Honor.
20 REDIRECT EXAMINATION
21 BY MR. GARBUS:
22 Q. I'll just ask two questions, and that is whether or not
23 you have an opinion on whether the availability of movies on
24 videotape has an adverse impact on revenues?
25 A. On videotape?
1058
1 Q. Whether VCRs have an adverse impact on revenues.
2 MR. SIMS: Objection.
3 Q. Do you know one way or the other?
4 THE COURT: Let's find out if he has an opinion
5 first.
6 A. Okay, I don't know of any research one way or the other.
7 Because these things come later, the question is to what
8 degree are there people who will move from going to the movie
9 theatre and instead say, look, I'm not going to go to the
10 theatre, I'm going to wait 26 weeks or 39 weeks, and I'm going
11 to wait for them at Blockbuster. Personally I do that, okay,
12 but that's just one person.
13 Q. Do you know whether the movie companies presently make
14 more monies on VCR or DVDs than off theatre revenues?
15 A. Yes, they do. I'll repeat. Let me give you numbers.
16 These are not necessarily for American studios. In 1999, the
17 American consumer spent $41 billion on movies. Those being
18 combined over cable, home video, and the box office. Of that
19 $41 billion, I'd say $19 billion is spent in the home market.
20 About $7 billion, $8 billion -- I'm going to miss
21 some numbers here because I'm not rounding off correctly, but
22 $8 billion is spent at the box office, and the remaining 13 or
23 $14 billion is spent on cable, and cable, of course, subsumes
24 a number of different applications. The biggest single market
25 now in the U.S. for movies is the home video market. Of
1059
1 course, there are some home videos -- and most of that is
2 right now video cassette, and most of the video cassette
3 market is the rental market.
4 This is why it's essential. If you're going to talk
5 about whether piracy really has an economic meaning is to talk
6 about the other technologies that a consumer can have to
7 pirate. And that particular technology is, hey, for two
8 bucks, you can go to Blockbuster, and for 3 bucks or 4 bucks,
9 Cosmo will deliver it to you within an hour. If you want to
10 pirate, take 250 hours to download a DVD, it's your life.
11 Q. Can you tell me the difference between piracy relating
12 to -- you read about the Napster case -- piracy with respect
13 to audio and piracy with respect to DVDs?
14 MR. SIMS: Objection; beyond the scope of cross.
15 THE COURT: Sustained.
16 MR. GARBUS: I have no further questions.
17 THE COURT: What's the source of the revenue dollars
18 you just gave us, sir?
19 THE WITNESS: I'm sorry. That was from a book by --
20 it's an annual report published by an investment banking firm
21 named Verona Suller, Incorporated. Every year they put out an
22 annual report of --
23 THE COURT: This is not something that's within your
24 area of expertise. You're just relating what you read
25 somewhere.
1060
1 THE WITNESS: No. As a matter of fact, I worked on
2 the annual report this year.
3 THE COURT: And what did you do that produced these
4 numbers?
5 THE WITNESS: I'm sorry. The numbers that I'm
6 reporting here were taken from other trade publications by
7 research analysts those trade publications include --
8 THE COURT: Okay. I understand. Thank you.
9 MR. GARBUS: Thank you for your testimony.
10 (Witness excused)
11 THE COURT: Your next witness, please.
12 MR. GARBUS: I think we'll be finished by lunch with
13 our witnesses.
14 THE COURT: Mr. Sims, I hope you're ready to go after
15 lunch.
16 MR. ATLAS: Defendants call Dr. David Touretzky.
17 MR. GARBUS: If I could say something. I didn't know
18 there was going to be any rebuttal case.
19 THE COURT: Well, on Friday we discussed this, and
20 they indicated that they might do so. That's all I know.
21 MR. SIMS: Actually, I spoke to Ed Hernstadt last
22 night, probably at 11 o'clock, and we said we weren't certain
23 we might have a witness, and if so, we would present him for
24 deposition. We haven't yet decided. We wanted to see this
25 morning's witnesses before we decided.
1061
1 THE COURT: Okay. Let's proceed.
2 DAVID TOURETZKY,
3 called as a witness by the Defendant,
4 having been duly sworn, testified as follows:
5 THE COURT: Proceed, Mr. Atlas.
6 DIRECT EXAMINATION
7 BY MR. ATLAS:
8 Q. Good morning, Doctor. Can you tell us by whom you are
9 presently employed?
10 A. Carnegie Mellon University in Pittsburgh, Pennsylvania.
11 Q. And what do you do at Carnegie Mellon?
12 A. I do research and teaching computer science.
13 Q. Do you teach in any specialized area within the field of
14 computer science?
15 A. Artificial intelligence and computational neuroscience.
16 Q. Can you just describe briefly those areas in a little bit
17 greater detail?
18 A. Artificial intelligence is concerned with getting
19 computers to do things that normally require human-like
20 intelligence or animal-like sense. Computational neuroscience
21 is the use of computers to understand how brains work.
22 Q. And how long have you taught computer science at Carnegie
23 Mellon?
24 A. I've been on the faculty since 1984.
25 Q. Can you tell us what degrees you have and from which
1062
1 schools you obtained them?
2 A. I have a bachelors degree in computer science from Rutgers
3 University, and I have a masters and Ph.D. degree in computer
4 science from Carnegie Mellon.
5 Q. Do you serve on any boards?
6 A. I serve on several editorial boards: The Editorial Board
7 of Cognitive Science. It's a journal. The Editorial Board of
8 Neuro-Computation. I'm also on the board of directors of
9 NIPS. NIPS stands for neural information processing systems.
10 It's a foundation that manages an annual conference for
11 researchers in the field of neuro-networks.
12 Q. Have you published any books?
13 A. Yes. I've published three books.
14 Q. Have you published any articles?
15 A. Approximately two dozen journal articles and about 60
16 conference papers.
17 MR. ATLAS: May I approach, your Honor?
18 THE COURT: Yes.
19 Q. I'd like to show the witness what we've marked as
20 Defendants' Exhibit CCM, and if you could tell us what that
21 is.
22 A. This is a copy of my curriculum vitae as of,
23 approximately, April of this year.
24 Q. Are there any changes to your CV that are not reflected on
25 the April version?
1063
1 A. There are a few changes, a few articles that were listed
2 and perhaps now have page numbers. And I've added two items
3 to the CV that are relevant to this case. I now cite my
4 Gallery of CSS Descramblers as a publication and also a page
5 on the CSS descrambling algorithms. That's now included in my
6 vitae as a publication.
7 MR. ATLAS: If I may approach again. I'd like to
8 move Dr. Touretzky's CV into evidence.
9 THE COURT: Any objection, Mr. Mervis?
10 MR. MERVIS: Plaintiffs have no objection, your
11 Honor.
12 MR. ATLAS: If I may approach again, your Honor.
13 THE COURT: Go ahead.
14 BY MR. ATLAS:
15 Q. Dr. Touretzky, did you prepare a declaration in this case?
16 A. Yes, I did.
17 Q. I'd like to show the witness what we've marked as
18 Defendants' Exhibit BBC and ask the witness if that's the
19 declaration that you prepared and signed in this case?
20 A. Yes, it is.
21 MR. ATLAS: I'd like to move Dr. Touretzky's
22 declaration into evidence as well, your Honor.
23 MR. MERVIS: Your Honor, I suppose to the extent that
24 this won't help illustrate his testimony, I have an objection,
25 which is -- and it may be premature -- which is that the
1064
1 testimony is going to be cumulative from what you heard from
2 Dr. Felton.
3 Notwithstanding that, your Honor, I do have an
4 objection in specific to paragraph 7 of this declaration. The
5 grounds for that objection are as follows: Relevance,
6 hearsay, best evidence, and that, in fact, it does not involve
7 any expertise whatsoever.
8 THE COURT: What do you say, Mr. Atlas?
9 MR. ATLAS: I think Dr. Touretzky will be testifying
10 as an expert. I think he can opine on the matters he has in
11 paragraph 7, but I have no objection if the Court takes it for
12 everything other than paragraph 7. I think it will help for
13 the Court.
14 THE COURT: Dr. Touretzky, I take it that you're
15 telling us that the statements made in this document are true.
16 THE WITNESS: Yes.
17 THE COURT: Correct?
18 THE WITNESS: Correct.
19 THE COURT: All right. I will receive paragraphs 1
20 through 6 simply as a way of shortcutting his direct testimony
21 in open court. I do note that to the extent he expresses
22 opinions on legal subjects, I'm not going to consider those
23 opinions as evidence. Obviously some of these things are
24 matters for me to decide.
25 The one that caught my eye particularly is the
1065
1 assertion at the beginning of paragraph 3 that "source code is
2 expressive speech meriting the full protection of the First
3 Amendment." That is ultimately for me to decide.
4 This witness is not here as a law professor, but,
5 obviously, he may have things that are relevant to my
6 determination of that question to say.
7 MR. ATLAS: That's what I would like to focus this
8 witness' testimony on today, especially his gallery of CSS
9 descramblers which he's testified about.
10 BY MR. ATLAS:
11 Q. Dr. Touretzky, do you have a website?
12 A. Yes, I do.
13 Q. Is the Gallery of CSS Descramblers that you testified a
14 moment ago posted on this website?
15 A. Yes. I have an extensive website about DeCSS, and one
16 portion of that website is the Gallery of CSS Descramblers.
17 THE COURT: I should note, Mr. Atlas, that
18 Defendants' Exhibit BBC does include internal references to
19 attached exhibits, which are not attached, one of which is a
20 printout of the gallery.
21 MR. ATLAS: I've broken them down separately, and I'm
22 going to take them as individual exhibits.
23 THE COURT: All right.
24 MR. ATLAS: If I could approach the witness.
25 THE COURT: All right.
1066
1 MR. ATLAS: It's Exhibit CCN.
2 THE COURT: CC.
3 MR. ATLAS: N.
4 THE COURT: N.
5 MR. ATLAS: Just so we're clear, I'd like to show the
6 witness -- the witness provided me this morning with a copy
7 that has various colors on it. He said it would be easier as
8 he goes through and describes what the gallery is if he can
9 refer to this one. The copies I have are black and white. Is
10 there an objection to my showing him the colored version?
11 MR. MERVIS: No.
12 BY MR. ATLAS:
13 Q. Dr. Touretzky, can you tell us what Defendants' Exhibit
14 CCN is?
15 A. This is a printout of the main page of my Gallery of CSS
16 Descramblers.
17 Q. Now, what is the Gallery of CSS Descramblers?
18 A. The gallery is a presentation of the CSS decryption of
19 algorithms in various forms in an attempt to show that these
20 forms are equivalent and that it's not possible to
21 discriminate between them.
22 Q. Why did you create the gallery?
23 A. Well, in reading reports of this case, it seemed to me
24 that the public discussion of some of these issues having to
25 do with legal status of computer code as speech could benefit
1067
1 from pointing out some of the things I try to point out in the
2 gallery. And since no one else seemed to be discussing it, I
3 thought I would create this website.
4 Q. If we could referring to Defendants' Exhibit CCN, which is
5 your gallery. If you could take us through, I guess,
6 beginning with the reference here to the anonymous C source
7 code, and just explain what it is you were trying to do.
8 A. Sure. So, the two points that the gallery tries to make
9 are, first of all, that source code has expressive content,
10 and, secondly, that you can't distinguish between different
11 forms of description of an algorithm, whether they're in
12 computer language like C or English or some other notation.
13 So the first two items in the gallery -- the first
14 item is the anonymous C source code, which is the source code
15 that was posted to the LiViD mailing list in October of 1999.
16 This is one of the items that is covered, I believe, by the
17 injunction issued by this Court.
18 The second item is another version of the same
19 algorithm. This.item is called CSS descramble.c, and this
20 comes from the CSS-auth software package that was authored by
21 Derek Fawcus. And the point of providing these two versions
22 is to show that it is possible to have different
23 implementation of an algorithm, and by looking at these
24 different implementations, one can gain knowledge that one
25 couldn't get from looking at other decryptions of the
1068
1 algorithms.
2 So, for example, if you compare CSS descramble.com
3 against the anonymous C source code, one of the things you see
4 is that Mr. Fawcus used fewer tables in his implementation,
5 and he unrolls one of the loops.
6 So, what he's telling us is, hey, there's more than
7 one way to implement this algorithm. You don't need to use so
8 many tables. You can use fewer tables. You don't have to do
9 this operation in a loop. Maybe it's more efficient to unroll
10 the loop and have the individual operations stated as separate
11 lines of code, and that's a message that Mr. Fawcus is
12 expressing in his chosen implementation of the algorithm.
13 You can't get that message, except by looking at the
14 source code and reading the source code. So that's the only
15 thing that can be expressed in the source code.
16 Q. By the way, if you could turn the page to page 2 of the
17 gallery. And can you explain to us what the first item on
18 page 2 is?
19 A. Yes. I should say that the next section of the gallery,
20 the items on page 2, they all have to do with the issue of
21 different forms the code can take and the fact that this Court
22 has enjoined some forms and not others, and I was puzzled by
23 that. It struck me as unusual that the Court would decide
24 that it was okay to ban, say, the C source code, but the Court
25 declined to ban discussion of the algorithm.
1069
1 Q. Why?
2 A. Because in my mind, these things are all equivalent, and
3 so I was wondering what your Honor was thinking when he
4 decided that this would be an effective remedy and why the
5 MPA's lawyers thought they won something when they got this
6 injunction because to my mind this didn't -- I couldn't make
7 sense of it.
8 So in an attempt to explore what the reasoning of the
9 Court and the plaintiffs' lawyers might have been, I decided
10 to investigate different forms that the code could take and
11 look at the implications of that.
12 So I began with the first two exhibits, which we've
13 already discussed, which are the actual C source code, but the
14 LiViD version and the CSS-auth version, which I believe have
15 been enjoined.
16 Now, it seemed to me that it could be that The
17 Court's reasoning was that these are files that could be fed
18 to a C compiler, whereas an English description, which the
19 Court declined to enjoin, could not be fed to a C compiler.
20 So if that was the Court's reasoning, what I've shown in this
21 exhibit on the top of page 2 is a screen dump of the CSS
22 descrambling code. So this is the CSS code written as a
23 binary image file. So in this form, the code cannot be feed
24 to a C compiler, and, perhaps, therefore, it would fall into
25 the category of protective speech.
1070
1 But if that was the case, the problem here is that
2 any human could look at this image and just type the
3 characters that they see into a text editor, and then they
4 would have the C source code again. Furthermore, there are
5 today, there are OCR programs. OCR stands for optical
6 character recognition, which can take a binary image file like
7 this and turn it automatically into text form.
8 So it's not clear to me then if these binary images,
9 if these pictures of the source code -- that's what they are,
10 pictures -- if the pictures themselves are really illegal
11 circumvention devices under the DMCA, but since they can't be
12 feed to a C compiler directly, maybe they're protected speech.
13 Q. Did you reach any conclusion in terms of your examination
14 of this particular description of the code?
15 A. Well, my conclusion is that if these images are protected
16 speech, then really the Court has provided the plaintiffs no
17 protection at all because it was trivial to turn these back
18 into text files. So, since the plaintiffs seem to think that
19 they won something with this injunction, it must be that these
20 images are not protected speech. They must be circumvention
21 devices.
22 Q. Why is that?
23 A. Well, because they're trivially convertible into
24 circumvention devices by looking at the picture and typing the
25 words.
1071
1 Q. Moving down to the second item.
2 THE COURT: So, is the net of your view that if the
3 preliminary injunction decision was in substance correct, as a
4 matter of law, the problem is that the injunction is far too
5 narrow? Is that one way of putting your conclusion?
6 THE WITNESS: Yes; I think that's correct.
7 THE COURT: Okay. I thought that's where you were
8 going.
9 BY MR. ATLAS:
10 Q. The second item on page 2.
11 A. The second item is a file called new-language.txt, and I
12 believe that you have a printout of that that you can
13 introduce as a separate exhibit.
14 Q. Actually before I get to that, I'd like to explore
15 something the judge had just asked you if you don't mind.
16 Why, in your view, would it be too narrow, the injunction, as
17 it currently stands?
18 A. Well, I think what the Court was trying to do in the
19 injunction is prevent people from obtaining technology that
20 could be used to decrypt DVDs without the authority and
21 permission of the motion picture industry, and simply
22 restricting a particular form of the C source code will not be
23 an effective way of preventing that.
24 And so if you're going to be effective about it, if
25 you're really going to stop people from doing it, you've got
1072
1 to stop them from hearing the message that the defendants were
2 trying to convey. You've got to stop them from any
3 description of the algorithm, which could be used to construct
4 one of these devices.
5 Q. Would that say that could include an oral conversation
6 that one would have in sufficient detail in discussing the
7 DeCSS program?
8 A. Yes, it would. I could certainly sit down with someone
9 who had the appropriate degree of knowledge of C programming
10 and of encryption technology, and with an oral conversation --
11 assuming that person had a good memory -- they could acquire
12 the knowledge necessary to reconstruct this program, yes.
13 Q. Let's draw your attention to back to page 2, which you
14 said I might have a copy of that. One moment.
15 MR. ATLAS: If I may approach, your Honor. This is
16 Exhibit CCQ, Defendants' Exhibit CCQ.
17 BY MR. ATLAS:
18 Q. What is that document, Dr. Touretzky?
19 A. This is a printout of the second exhibit on page 2 of the
20 gallery, which is called new-language.txt. And what I did
21 with this exhibit, I tried to further explore this issue of
22 the legal status of computer code. So if these pictures of
23 the code in the previous gallery exhibit, if the Court had a
24 problem with distributing those pictures of the C code, maybe
25 that wasn't -- maybe that wasn't protected speech.
1073
1 If they have a problem with that, maybe the problem
2 is that these are pictures of code expressed in a language for
3 which there is a compiler. There are C compilers available
4 for free, and so if you had a picture of the code, you could
5 type the code in, just literally typing what you see on the
6 screen, and then you can run it through the C compiler.
7 So if that was the problem, then maybe it would be
8 okay to describe the algorithm in another computer language
9 that had all the precision of C, but for which there did not
10 exist a compiler. So what I did is I created a computer
11 language, which has the same semantics as a C programming
12 language, but perhaps has a different syntax, and I
13 recompressed the DeCSS algorithm in this new language.
14 Now, there is no compiler for this language, and so
15 it could be that the Court would find that since you can't
16 feed this to a compiler, because there isn't a compiler, then
17 this form of the algorithm might be protected speech, might be
18 okay. But I have to say I'm pretty worried about this because
19 with this version of the code out on the web, I have no way of
20 preventing another person from writing a compiler for my
21 language.
22 And having done that, they will then make me in the
23 position of having provided code that's now compilable even
24 though I didn't create the compiler, and, in fact, there was
25 no compiler when the code was originally written. So I think
1074
1 this raises problems, too, that expressing the code in a
2 language that is as precise as C, but for which there is no
3 compiler, really you can't give that the same protected status
4 as other kinds of speech. You have to view it as a device
5 because it could become compilable at any time.
6 Q. Moving down to the next item on your gallery. I think I
7 have a copy of that.
8 MR. ATLAS: It's Exhibit CCO.
9 Q. Is this the next step in your analysis, Dr. Touretzky?
10 A. Yes. This is a copy of the file plain-english.html.
11 Q. What was the purpose of doing that?
12 THE COURT: I'm delighted, Doctor, that this is plain
13 English to someone.
14 THE WITNESS: I did my best.
15 THE COURT: I wasn't finding fault.
16 A. This is the third gallery item on page 2 of the gallery
17 printout. So what I tried to do here was, again, to further
18 explore this issue of the status of source code, and if it's
19 the case that the previous file, my new-language.txt -- if
20 that was, perhaps, not deserving of First Amendment protection
21 because somebody could write a compiler for it -- and the
22 Court had already refused to enjoin mere discussion of the
23 algorithm -- I know that from reading the transcript of the
24 preliminary injunction hearing and from reading the memorandum
25 that the judge subsequently wrote -- it seemed to me that the
1075
1 next thing one could consider was translation of the algorithm
2 in English.
3 Now, there's two ways to do that. The most
4 mechanical way is to simply translate the C code directly into
5 English and make no other changes, and I decided not to bother
6 with that. I'll leave that as an exercise for an
7 undergraduate, but I thought a more interesting way to do it
8 would be to translate the C code into English, but, in
9 addition, include some explanatory text and some editorial
10 comments. And that's what I've done in this version.
11 So if you look at this version, the first couple of
12 paragraphs are introductory text, and then that's followed by
13 an image, which I borrowed from a website in Norway that
14 explains the big picture of how DVDs -- how movies on DVDs are
15 descrambled. And after that image, there's another paragraph
16 of text where I explain what the image conveys.
17 And following that, the remainder of this document is
18 my translation of the C code into plain English, and that
19 translation is done pretty much line by line, but it contains
20 certain informalities of language and minor editorial
21 comments, which are the kinds of things that a human could do,
22 but a computer program typically could not do.
23 Q. And did you reach any conclusions in preparing this
24 plain-english.html version?
25 A. My conclusion is that this version is substantially
1076
1 equivalent to the original C source code that was the first
2 very exhibit in the gallery. That any person with a
3 rudimentary knowledge of C would be able to go from this
4 English description back to the C source code and reproduce
5 the C source code flawlessly.
6 So it seems to me that this document ought to be
7 enjoined for the same reason that all the others are, is that
8 it's providing exactly the same information. It's providing a
9 description of the algorithm with enough precision that
10 another person could reproduce the software.
11 Q. Moving down to the fourth item on page 2 of your gallery.
12 It's the english-and-c.html version.
13 MR. ATLAS: I have a copy of that as well. It's
14 Defendants' Exhibit CCP.
15 Q. I'm showing you what's been marked as Defendants' Exhibit
16 CCP. Could you tell us what that is?
17 A. Yes. This is a printout of the fourth exhibit on page 2
18 of the gallery. This is another version of that essay that we
19 just discussed.
20 Q. Why dis you create this version of the essay?
21 A. Well, I wanted to further explore the issue of plain
22 english descriptions being protected. Given that the Court
23 declined to enjoin discussion of the algorithm in plain
24 english, it could be that the previous exhibit,
25 plain-english.html, perhaps that was protected speech, and if
1077
1 it was protected speech, then what would happen if one simply
2 made a little more explicit the mapping between the English
3 description of the algorithm and the C code.
4 So for people who haven't yet acquired a rudimentary
5 knowledge of the C programming language, I thought I could
6 give them a little help in converting the English back to C.
7 And so what I've done is, beginning on page 2 of this
8 nine-page document, for each English paragraph that
9 corresponds to a line of C code, I have presented an inset
10 that gives the translation of that English into C.
11 And in the original document, that inset is done in a
12 light blue background to make it visually distinct, and it's
13 also indented. The indentation surveyed the copying process
14 here, but the blue background did not.
15 So in going through this, you see for each line of
16 the algorithm described in English, there is the corresponding
17 expression of that algorithm in C code. All I'm doing is
18 translating my English into statements in the C language. So
19 an interesting thing about this document is that it contains
20 within it the source code for the CSS descrambling program,
21 which the Court has enjoined.
22 But you cannot feed this file to a C compiler because
23 that C source code is interspersed with both English and with
24 HTML formatting commands, which provides the blue background
25 and information and so on. So you can't compile this thing,
1078
1 but you can read it, even if you're not a very good C
2 programmer. But what you learn from reading this document
3 would allow you to recreate with perfect accuracy the original
4 descrambling algorithm.
5 Q. When did you put up the gallery? When did you post the
6 gallery?
7 A. In March of this year.
8 Q. Did anyone involved in this case suggest or encourage you
9 to create this gallery that you've been testifying about?
10 A. The creation of the gallery was my own idea. I did
11 discuss it with my graduate students, who thought it was a
12 pretty good idea and that I should go ahead with it.
13 Q. Why did you create and post it?
14 A. I wanted to spare public discussion of these issues. This
15 case raises what for me are very serious concerns about the
16 future of computer science and my ability to function as a
17 computer scientist.
18 Q. Why?
19 A. Because what the plaintiffs are trying to do is carve a
20 hole in the First Amendment and say, this kind of speech you
21 can engage in and that kind of speech you can't. And as a
22 computer scientist, this is my livelihood. I've been
23 programming computers since I was 12 years old, and I'm very
24 concerned when events take place that threaten my ability to
25 express myself.
1079
1 THE COURT: Mr. Mervis.
2 MR. MERVIS: I move to strike that portion of the
3 answer which Dr. Touretzky purports to describe what the
4 plaintiffs are trying to do in this case and to the extent he
5 is, also, offering opinion about legal matters.
6 MR. ATLAS: I think it's the witness' perception of
7 how the plaintiffs' position in this case impacts what it is
8 that he does and how he communicates with his peers and his
9 students, and I think it's acceptable testimony.
10 THE COURT: To the very limited extent of the motion,
11 it's granted. I'm not taking Dr. Touretzky's view of the
12 First Amendment as evidence. His testimony presupposes a view
13 of the scope of the First Amendment on which he is not an
14 expert, which is not a proper subject for testimony and which
15 is ultimately for me and appellate courts to decide.
16 There is no doubt that yelling "fire" in crowded
17 theatre is something that is problematic and probably impedes
18 expression by certain twisted individuals. I'm not drawing a
19 one-to-one analogy. You know how dangerous one-to-one
20 relationships are this morning, but you see the point.
21 MR. ATLAS: I think it explains why the witness is
22 here, but I may be --
23 THE COURT: I understand that. I understand why he's
24 here.
25 BY MR. ATLAS:
1080
1 Q. By the way, the different ways that you have approached
2 communicating the DeCSS source code or the DeCSS code, would
3 those be the types of communication you may -- strike that.
4 These different ways of approaching the DeCSS code,
5 are those ways that you communicate with the people in -- your
6 peers, the other professors, the other faculty members?
7 A. Yes. We mix these techniques freely, and even on the same
8 page of a paper, you might have descriptions in English. You
9 might have mathematical equations, bits of code in a
10 acceptable programming language, bits of code in a language I
11 just made up because it's particularly convenient for trying
12 to express what I'm trying to express. We use all of these
13 forms of expression all the time.
14 Q. Turning to the last page of your gallery, page 3 --
15 MR. ATLAS: Actually before we get to that, what I'd
16 like to do, your Honor, at this time is move into evidence the
17 gallery, which is Exhibit CCN and then the three different
18 types of entries on the gallery, which I think we've marked as
19 CCO, CCP and CCQ.
20 MR. MERVIS: No objection.
21 THE COURT: They're received.
22 (Defendants' Exhibits CCN, CCO, CCP, and CCQ
23 received in evidence)
24 BY MR. ATLAS:
25 Q. Turning on the top of page 3, the Cryptanalysis of CSS.
1081
1 Can you explain what the entry of this refers to?
2 A. Yes. This entry is actually a collection of writings by
3 Frank Stevenson, rather than a single document. And in those
4 writings, which I believe have been entered in this case
5 already -- in those writings, Mr. Stevenson talks about
6 various cryptographic attacks on pieces of the CSS encryption
7 scheme, and some of these documents are English text and some
8 of them are little bits of C code, which illustrate the point
9 he's trying to make.
10 The interesting thing about this exhibit in the
11 gallery is that this is not -- the software provided here
12 would not allow you to immediately decrypt the DVD. What's
13 here is software that illustrates the effectiveness of the
14 attacks that Mr. Stevenson developed. And, yet, again, to
15 provide the plaintiffs' effective protection, one would have
16 to somehow prevent the discussion of this material because in
17 the hands of a knowledgeable person, it could be used to
18 access the material on the DVD.
19 Q. The next item, the DeCSS T-shirt, why did you post this on
20 the website on the gallery?
21 A. Well, this is a photograph of a T-shirt that's offered for
22 sale by an outfit called CopyLeft, and I purchased one of
23 those shirts myself. And the point of including it here is it
24 seems to me that there is some confusion among all the parties
25 in this case about whether something is speech or not.
1082
1 And my reaction is if you can put it on a T-shirt,
2 it's speech. And so the point of showing the T-shirt was to
3 illustrate that and, also, to raise the question if this
4 T-shirt, itself, would have to be prohibited, then I wonder
5 what would happen to me if I wore the shirt in public.
6 Wearing the shirt in public could, perhaps, be interpreted as
7 engaging in trafficking a circumvention device.
8 So if one really wants to afford the plaintiffs the
9 protection that they seek, I think I would only be able to
10 wear my shirt in the privacy of my own home and must not go
11 outdoors with it.
12 Q. The final item on here, can you tell us what this refers
13 to?
14 A. Yes. This is an image file. It was constructed by Andrea
15 Gnesutta, who was the winner of a contest for the best way to
16 distribute the DVD source code. And what she did was she
17 created an image file that looks like a bumper sticker. It
18 says, DVD Source Code Distribution Contest. But inside this
19 image file is the source code. And although you can't see the
20 source code, when you display the image on your web browser,
21 the mere fact that this image appears on this screen -- if
22 you're looking at a website and this image comes up means that
23 the source code has been downloaded onto your computer.
24 And Ms. Gnesutta gives the technique necessary to
25 extract the source code from the binary image file. It's a
1083
1 couple of simple operations can pull out those bytes, and then
2 one can easily obtain the text file from that.
3 (Continued on next page)
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8
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10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1084
1 Q. So, summing up, looking at all the different items you
2 have on your gallery of CSS -- do you have a difference --
3 strike that.
4 Do you have an opinion on the differences, if any,
5 between them?
6 A. My opinion is that there's no effective difference between
7 any of these forms in that if you want to accomplish what the
8 Court set out to do in its preliminary injunction, you have to
9 enjoin all of these forms because if any one of them is
10 allowed, then it's a trivial matter to transform it into any
11 of the others. They're all interconvertible.
12 Q. Do you have any opinion on the effect within your field,
13 the computer science field, if the Court were to issue an
14 injunction first over the DeCSS executable resource code?
15 MR. COOPER: Objection, your Honor; relevance.
16 THE COURT: Overruled.
17 A. Well, yeah, I see this as having a chilling effect on my
18 ability as a computer scientist to express myself. In
19 comparison, I know I could publish the formula for LSD using
20 chemical notation and even though I'm not allowed to possess
21 LSD, no one would try to stop me from publishing the formula.
22 And I could publish the schematic for the timing
23 device for a bomb, and even though I'm not allowed to possess
24 a bomb, no one would try to stop me from publishing those
25 schematics.
1085
1 The language that -- in which I try to express myself
2 is the computer language and if the Court upholds this
3 injunction, what would happen is that certain uses of computer
4 language, my preferred means of expression would illegal.
5 They'd be enjoined. And that means that anything I do from
6 now on has the potential to be ruled illegal.
7 And furthermore, what I've tried to show with the
8 gallery, even if I just decided never to try another line of
9 computer code again, I wouldn't be any better off because
10 simply writing English, if I wrote it with the same precision
11 as I used in my plain English on an HTML file would accomplish
12 the same thing.
13 So, I could merely by using the kind of precision
14 that I've been trained to use as a computer scientist simply
15 by expressing myself that way, I could be opening myself up to
16 legal liability.
17 THE COURT: Dr. Touretzky, do people in your field of
18 endeavor sometimes make bits of hardware, computer hardware?
19 THE WITNESS: Yes, they do.
20 THE COURT: Are there circumstances in which it might
21 be helpful to a computer scientist to make a bit of hardware
22 as to which somebody else holds the patent?
23 THE WITNESS: Yes, I think so.
24 THE COURT: O.K. Mr. Atlas?
25 Q. Dr. Touretzky, would a declaration by the Court that the
1086
1 CSS descriptions are illegal have a similar chilling effect
2 compared to an injunction?
3 MR. COOPER: I have the same relevance objection,
4 your Honor.
5 THE COURT: Overruled.
6 A. Well, it would certainly. It would certainly make me
7 afraid to publish things like that; yes. Any indication by
8 the Court that this was illegal would concern me; yes.
9 Q. By the way, are you being compensated for your role as an
10 expert in this case?
11 A. No, I'm not.
12 Q. Why are you rendering services if you're not being
13 compensated here?
14 A. I think the issues being decided here have tremendous
15 importance for the field of computer science and it's actually
16 I consider it a privilege to be allowed to come here and
17 express my views and hope to influence the outcome.
18 Q. One other thing, Doctor. I believe in your deposition an
19 article that you had prepared was marked -- or actually I
20 believe it's Exhibit 2 at your deposition, we've marked it as
21 Exhibit BBE, it's an article entitled "Source Versus Object
22 Code."
23 MR. ATLAS: May I approach, your Honor?
24 THE COURT: Yes.
25 Q. Dr. Touretzky, if I may, why did you write this article?
1087
1 A. I wrote this article because after reading various
2 depositions in this case, it occurred to me that the both
3 sides were grappling with the issue of source versus object
4 code. And I could see that several of the other defense
5 witnesses had tried in depositions to explain that source and
6 object code are really the same thing, that there isn't any
7 rational way to distinguish one from the other, but I'm not
8 sure that the lawyers were getting it.
9 And I think it's kind of hard to do that in
10 deposition. So, by constructing this essay, including the
11 illustrative appendices at the end, I hoped to assist both
12 sides in understanding this.
13 Q. That's actually what I'd like to refer your attention to
14 appendices beginning on page 4 of 6 of your article. Appendix
15 A, Appendix C, and D. I was wondering if you could explain
16 the relationship between these appendices?
17 A. Yes, these appendices are four different forms of the same
18 program. I'd like to go through them in order and then back
19 up.
20 So, starting with Appendix A, Appendix A is a source
21 file written in the C language for a simple program that
22 multiplies the numbers 1 through 5 together and then prints
23 out the result. In mathematical results, we'd say the program
24 computes the quantity 5 factorial.
25 I should say that Appendix A is the same form as the
1088
1 version of the DeCSS code that the Court has enjoined. The
2 source code written in the C program language just like the
3 anonymous C source code that the Court has enjoined.
4 What I next did was I compiled this source code.
5 Now, a compilation is actually a complicated process with a
6 number of different steps which are typically invisible to the
7 lay person, but computer scientists know about them.
8 So, when you feed the C source code to a C compiler,
9 let's say GCC, the new C compiler, it's a very commonly-used C
10 compiler. What the C compiler does it translates that source
11 code into a language called RTL, which is an abstract machine
12 language. Then it translates the RTL into assembly language
13 for whatever processor you're compiling for. In this case, I
14 was compiling for a spark processor for the sun work station
15 in my office.
16 Then an assembler takes the assembly language code
17 and translates that into machine executable code. So, what we
18 have in Appendix B is an intermediate stage in that process.
19 What I asked the C compiler to do was when it
20 translated the C to RTL, and then the RTL into assembly
21 language, I asked it to tell me and give me back the assembly
22 language, the intermediate product. So, from the C compiler's
23 point of view, Appendix B is the object code is a result of
24 what the C compiler does to the source code, but from the
25 assembler's point of view, assembler being the next guy in
1089
1 line that's going to process this, the assembler used this as
2 a source code, but as the assembler is going to turn it into
3 by their machine instructions.
4 So, if we proceed to Appendix C, what I next did was
5 I told the C compiler, go ahead and compile this program, and
6 instead of stopping at the assembly language level, stop at
7 the level of the binary machine code. What's called the .0
8 file or the object file and then I took that .0 file and I
9 displayed it using a utility program that displays binary
10 files.
11 And so, what you see are in Appendix C, the column of
12 numbers on the left, the leftmost column are the equivalent of
13 line numbers in a deposition. They're basically keeping track
14 of the position in the file and the remaining columns of
15 numbers are hexadecimal encryption codings of the binary bits
16 that make up the object file.
17 Finally, in Appendix D, I took that object file and
18 fed it to a program called a disassembler. And the object --
19 the disassembler translated the object file back into symbolic
20 assembly language form, and that's what we see in Appendix D.
21 Now, so the point I want to make here is that the
22 same ideas that were expressed in my statement to you that
23 five factorial is the product of the numbers 1 through 5 are
24 also expressed in all four of these appendices and they're
25 expressed in ways that are transparent to a computer
1090
1 scientist. And I'd like to show you that starting at Appendix
2 D, if you look at the line labeled 20 in Appendix D, it's 20
3 and a colon.
4 That line in the middle of that line, you see the
5 letters CMP, which stands for compare. So, this line is a
6 line that's telling the computer to compare two numbers.
7 And if you look to the right of the CMP, what it's
8 saying is compare the contents of register 00 with the number
9 5. So, this is a piece of symbolic assembly language code
10 which computer scientists can read just fine.
11 And if you look to the left of the CMP, you'll see
12 four groups of numbers. These are hexadecimal numbers. The
13 numbers are 80822005. This is the encoding of that compare
14 instruction in the binary machine language of the spark
15 processor.
16 So now, if you go back to Appendix C, and if you look
17 at in Appendix C, the line labeled 220, so it's about 10 lines
18 at the -- down from the top, the line labeled -- it's actually
19 0000220.
20 And if you look about halfway in that line, you'll
21 see the sequence 80822005. So, this is -- again, this is the
22 binary machine instruction that's that compare instruction
23 that we saw in Appendix D.
24 Now, we can go back once more to Appendix B. And if
25 you look at Appendix B, this is again symbolic assembly
1091
1 language. And so, on the left side of Appendix B, you'll see
2 some labels. There's a label main and a little bit further
3 down there's a label that says .LL3 on the left-hand side.
4 And if you look two lines below that .LL3, we see
5 again the compare instruction. CMP percent 00, 5. It's
6 comparing the contents of register 00 with the No. 5. We can
7 go back one more step and look at Appendix A, my C source
8 code.
9 And in Appendix A, about 5 lines down, there's a four
10 alone. It begins with the word "four" and then it says: Left
11 (I equals 1; I less than 6). That "I less than 6" that is
12 exactly what that compare instruction was turned into by the C
13 compiler.
14 So, the compare instruction is the expression of this
15 concept, "I less than 6" in the machine's assembly language.
16 Q. So, do I understand that these four appendices are
17 different ways of expressing the same idea?
18 A. Yes, it's exactly the same idea and you might ask, well,
19 why does "I less than 6" and yet in the assembly language
20 code, we are comparing the register against the No. 5. And
21 the reason is that it reflects a certain strategy used by the
22 C compiler to encryption code this 4 loop and that the only
23 way you could know about that strategy is to read the assembly
24 language.
25 And I hope what I've shown is that it's not that hard
1092
1 to do that.
2 Q. In terms of taking one of the items?
3 THE COURT: We are all going to get into
4 post-assembly language this afternoon.
5 THE WITNESS: Excuse me?
6 THE COURT: We are all going to get to post-assembly
7 language this afternoon.
8 Q. Doctor, can you tell me the skill level it would take to
9 take any one of the identities that appear on your gallery of
10 CSS descramblers and turn that into any one of the other
11 identities that appear on your gallery of descramblers, what
12 skill level would be involved?
13 MR. MERVIS: I object to the form of the question.
14 THE COURT: Overruled.
15 I think we can understand it.
16 A. Yes, since I've been involved in teaching computer science
17 for quite a few years, I'd say that anyone who had taken an
18 undergraduate level C programming course should be able to
19 convert between any of these forms.
20 MR. ATLAS: The final thing I'd like to move into
21 evidence, Exhibit BBE, which is the article and the appendices
22 that the doctor was just talking about.
23 MR. MERVIS: No objection, your Honor.
24 THE COURT: Received.
25 (Defendant's Exhibit BBE received in evidence)
1093
1 MR. ATLAS: I have no further questions for Dr.
2 Touretzky.
3 THE COURT: Thank you.
4 Any cross-examination, Mr. Mervis?
5 MR. MERVIS: Unless the professor is going to give us
6 all a quiz, the plaintiffs have no questions.
7 THE COURT: Well, Dr. Touretzky, let me just tell you
8 that this was illuminating and important. I was hoping we
9 were going to hear something like this through the whole
10 trial. I appreciate your having come.
11 THE WITNESS: Thank you, your Honor.
12 THE COURT: Thank you.
13 (Witness excused)
14 THE COURT: The witness is excused.
15 What's next?
16 ANDREW APPEL,
17 called as a witness by the Defendants,
18 having been duly sworn, testified as follows:
19 THE CLERK: State your name, spelling it slowly.
20 THE WITNESS: My name is Andrew Appel; A-P-P-E-L.
21 THE COURT: All right. Mr. Garbus, please proceed.
22 MR. GARBUS: Professor Appel is our clean-up hitter.
23 I think a lot of this has been cleaned up, so I'll just try to
24 cut short, if I can.
25 DIRECT EXAMINATION
1094
1 BY MR. GARBUS:
2 Q. Professor Appel, can you tell me something about your
3 educational background?
4 A. Yes, I have a bachelor of arts with highest honors from
5 Princeton University in 1981 in physics. I have a Ph.D. in
6 computer science from Carnegie-Mellon University in 1985.
7 Q. And can you tell me something of your professional
8 appointments?
9 A. Yes. In 1986, I became an assistant professor of computer
10 science at Princeton University. Then in approximately 1992,
11 I was promoted to associate professor and then later to full
12 professor.
13 Q. And have you been at other universities as well?
14 A. No, my career since receiving the Ph.D. has been at
15 Princeton University.
16 Q. And what awards and honors have you won?
17 A. I received in 1981, the Cusaka Memorial Prize for my
18 undergraduate research in physics and the National Science
19 Foundation graduate fellowship and two or three years ago, I
20 was elected a fellow of the Association for Computing
21 Machinery.
22 Q. And what is the Association for Computing Machinery?
23 A. It's the primary scholarly and professional society in the
24 field of computer science and computing.
25 Q. Have you written any books or chapters in books and in
1095
1 what areas?
2 A. I've written two books in the area of compilers, one
3 graduate textbook in 1991 and one an undergraduate and
4 graduate textbook in 1998 and I've written approximately 50
5 published papers.
6 Q. Now, one of the questions is: What do you bring to this
7 case that let's say some of the other witnesses who have
8 testified, what is the difference between your area of work
9 and Professor Felton?
10 A. We both do research in the broad area of computer
11 security. My research systems from my previous work in the
12 area of programming languages and compilers and is more in the
13 area of theoretical approaches to protecting computers from
14 the programs that run on them and protecting the programs from
15 the computers that run them.
16 Professor Felton's area is more in the broad area of
17 systems security, what are the practical vulnerabilities of
18 real systems as implemented.
19 Q. And during the course of your work, do you publish codes?
20 A. In my work on compilers, I routinely would publish
21 computer programs in both source code and object code form so
22 that other scientists could take my work and do comparisons or
23 improve it by replacing one component or another.
24 Q. Are compilers an area of your expertise?
25 A. Yeah, I've done about 10 or 12 years of research in the
1096
1 area of compilers and published two books and many articles in
2 that area.
3 Q. What is the relationship between compilers and this whole
4 question of source and object code?
5 A. The compiler is what translates the source code to the
6 object code. So, that's the relationship.
7 Q. How does it work?
8 A. The compiler reads the source code, parses its structure,
9 understands the semantics, and then translates -- translates
10 each of those structures into the appropriate manifestation in
11 object code.
12 Q. Are you being paid for your work here today?
13 A. No, I believe not.
14 Q. Why are you testifying?
15 A. I'm concerned about censorship of computer programs. I'm
16 concerned about the prospects or the end of fair use of
17 material distributed digitally. Those are the main reasons.
18 Q. Have you ever written any article -- did you co-author an
19 article with Professor Felton?
20 A. I've co-authored two or three articles with Professor
21 Felton.
22 Q. And did you co-author an article with him entitled,
23 "Technological access control interferes with noninfringing
24 scholarship"?
25 A. Yes.
1097
1 Q. And what was the source of the information in that
2 article?
3 A. In that article, we wanted to demonstrate that many kinds
4 of scholarship, especially scholarly searches of different
5 kinds of material would require access to the unencrypted
6 content.
7 Some of the sources were our own expertise in the
8 representation of text and computer programs and for the
9 sections on audio and video, we also read the research
10 literature and consulted with other experts.
11 Q. And do you recall the examples you used in your article?
12 A. I used examples of searching text materials such as books
13 for not only individual words, but also correlations between
14 one part of the document and another. I used examples of
15 analyzing musical scores to extract themes. I used examples
16 of searching digital audio such as CDs for themes and
17 transitions.
18 Q. And how is that affected by the issues that we face here?
19 MR. MERVIS: Objection, your Honor, relevance.
20 THE COURT: Overruled.
21 A. If scholars are unable to access the unencrypted content
22 of movies, then they will not be able to do research that
23 requires automated search of those materials. And there are
24 many benefits to those areas of research.
25 Q. What are the benefits?
1098
1 A. Well, the first benefit is in developing the methods
2 themselves for doing automated search. Scientists need input
3 on which to test their methods.
4 The second is that the searches themselves will be
5 useful, not just to computer scientists or experts in video,
6 but scientists may wish to do searches for purposes in society
7 and the example we gave in the paper is that one might in the
8 future wish to search a library of Hollywood movies for scenes
9 that contain cigarettes, perhaps as part of public health
10 research.
11 The technology is not there yet for doing a search of
12 that kind, but that's just the kind of thing that computer
13 scientists and video engineers are working on.
14 Q. This, also, applied to books that run DVDs or music that
15 was on DVDs?
16 A. Yeah, if other kinds of content such as books and audio
17 are distributed with technological access controls, then many
18 kinds of searches on those materials will also become
19 impossible.
20 Q. Did you follow the development of the DMCA, the Digital
21 Millennium Copyright Act?
22 MR. MERVIS: Objection, your Honor, relevance.
23 THE COURT: Sustained.
24 Q. Did you submit a paper to Congress?
25 A. The article that you mentioned on technological access
1099
1 controls was submitted to the copyright office as part of its
2 rule-making procedures.
3 I believe I also signed a letter initiated by Gene
4 Spafford which had to do with the exemption in the law for
5 research by cryptography research for reverse engineering of
6 access controls.
7 Q. In what form are text files stored in a computer?
8 A. The text files are stored using 1's and 0's usually in a
9 correspondence given by the ASCII codes that matched the 1's
10 and 0's to letters and numbers.
11 Q. Is that source code or object code or both?
12 A. Source code would be stored, you know, according to the
13 correspondence given by the ASCII code. Object code would be
14 stored as 1's and 0's, according to the correspondence given
15 in the reference manual for the particular computer.
16 Q. Do you know what DeCSS is?
17 A. DeCSS is a program that decrypts content that was
18 encrypted CSS with algorithm.
19 Q. When did you first learn about it?
20 A. I think I learned of the existence of DeCSS sometime I
21 would guess around January. I became more familiar with it in
22 approximately March or April.
23 Q. And where did you go to find it?
24 A. I just typed DeCSS into a web search engine. I believe I
25 used Google, and that gave me a few hundred hits, I believe,
1100
1 and I examined each of the web pages just by viewing it until
2 I found some that had source code claiming to be DeCSS.
3 Q. Did you go to Bruce Schneier's website?
4 A. I believe I did, yes.
5 Q. And who is he?
6 A. Bruce Schneier is a cryptographer. He's an author of a
7 widely-used text and reference book on applied cryptography.
8 Q. Did you go to David Wagner's site?
9 A. Yes, I did.
10 Q. And who is he?
11 A. David Wagner is a graduate student or maybe he's just
12 received the Ph.D. from the University of California at
13 Berkeley. He does research in practical aspects of computer
14 security, including cryptographic protocols.
15 Q. And did you also go to Professor Touretzky's site?
16 A. Yes, I did.
17 Q. Did you go to Greg Nuby's site?
18 A. Yes.
19 Q. And who is he?
20 A. Greg Nuby is a professor of library science and he had a
21 website that discussed DeCSS as it would be useful to
22 librarians in archiving digital material.
23 Q. Do you have a web page?
24 A. Yes, I do.
25 Q. Did you post DeCSS?
1101
1 A. No, I do not.
2 Q. Why not?
3 A. I wasn't sure what the legal aspects of doing so would be
4 and I didn't have an immediate need to do it.
5 Q. Now, is it your testimony -- text and source code and
6 object code each stored its 1's and 0's in the computer?
7 A. They're all stored as 1's and 0's.
8 Q. Now, now does the -- does the word "blowfish" mean
9 anything to you?
10 A. "Blowfish" is an encryption algorithm designed I believe
11 by Bruce Schneier two or three years ago.
12 Q. And the following initial C2TXT2C, can you tell me what
13 that is?
14 A. Yes. At the time that blowfish was invented, there was
15 still some question in the United States law whether it was
16 permissible to post cryptographic algorithms on the Internet.
17 So, a computer scientist in Finland, I believe,
18 designed a program called C2 Text 2C that would translate
19 Schneier's computer program from source code to English
20 language text. And English language text would be, in effect,
21 a description of the computer program, but it would not be the
22 computer program itself.
23 And there's also as part of this utility a program
24 that would translate the English language text back to a C
25 program. So, I was interested in this because it shows the
1102
1 difficulty of drawing a line in prohibiting the distribution
2 of source code, but not prohibiting descriptions of the
3 algorithm in English.
4 Q. Now, have you ever met Eric Corley or Emmanuel Goldstein
5 in this case?
6 A. No, I have not.
7 Q. You testified that you do work in the area of security
8 with Professor Felton, can you tell us about your experience
9 with the web browser?
10 A. Yes. About three or four years ago, when web browsers
11 were just coming out, that supported the java programming
12 language, that is to say, a website could provide a computer
13 program that would run in the browser of the user.
14 There was some concern about whether this would be a
15 way for viruses to propagate from the website being browsed
16 into the user's computer. And the claim made with the initial
17 java enabled browsers was that they provided security against
18 attacks by the website to the user's computer.
19 Some students at Princeton found ways to defeat the
20 security. Half a dozen different methods initially and they
21 came to me and I believe also they came separately to
22 Professor Felton asking whether they should publish a
23 description of these security holes and whether that would be
24 research in computer science that would be valuable to pursue.
25 And I advised them that it would be an excellent subject for
1103
1 research and they did, in fact, publish that paper.
2 Q. Have you been involved in any other situations concerning
3 vulnerabilities of codes --
4 A. Well, the research I do has to do with -- I'm not sure.
5 Q. You don't have a sun tan, but were you in Hawaii last
6 week?
7 A. I was at a meeting of the defense advanced research
8 project agency meeting of principal investigators in the area
9 of computer security.
10 Q. And were you at a conference that dealt specifically with
11 the whole question of vulnerability in systems?
12 A. Right. The -- one of the program managers who works for
13 the defense department convened a workshop of all of these
14 researchers working in the area of security. These
15 researchers are trying to build more secure systems that can
16 defend against attacks by hackers. And one of the workshops
17 that he convened was to have the researchers explain exactly
18 what kinds of attacks they're defending against.
19 And one thing we concluded in this discussion was
20 that the researchers building the defenses don't have a very
21 good exploit the vulnerabilities in systems the better so that
22 we can design more security systems to make that defense.
23 MR. MERVIS: Your Honor, move to strike the answer.
24 It was entirely based on hearsay.
25 A. Right. The -- one of the program managers who works for
1104
1 the defense department convened a workshop of all of these
2 researchers working in the area of security. These
3 researchers are trying to build more secure systems that can
4 defend against attacks by hackers.
5 And one of the workshops that he convened was to have
6 the researchers explain exactly what kinds of attacks they're
7 defending against. And 1 thing we concluded in this
8 discussion was that the researchers builds the defenses don't
9 have a very good exploit the vulnerabilities in systems the
10 better so that we can design more security systems to make
11 that defense.
12 MR. MERVIS: Your Honor, move to strike the answer.
13 It was entirely based on hearsay.
14 THE COURT: What do you say, Mr. Garbus?
15 BY MR. GARBUS:
16 Q. Did you participate in these conversations?
17 A. I participate in the conversations and I gave a short
18 presentation of about 15 minutes.
19 THE COURT: Look it seems to me this is an is self
20 evident proposition, I will overrule the objection.
21 Q. With respect to Frank Stevenson, have you ever read his
22 paper dealing with DeCSS?
23 A. Yes, that was one of the first things I found on the web
24 when I was looking for DeCSS and I found his analysis of the
25 DeCSS algorithm to be very helpful.
1105
1 Q. Why?
2 A. Because it explained what the source code was doing, what
3 the CSS system itself was accomplishing that the source code
4 was undoing and what were the weaknesses in the system.
5 MR. GARBUS: Thank you, Professor.
6 I would like to move in as Defendant's BL, the
7 affidavit of Professor Appel, which goes into more deeply,
8 which I don't think I have to go into here and annexed to it
9 is his vitae and annexed to that is the paper that he's
10 referred to.
11 THE COURT: Mr. Mervis?
12 MR. MERVIS: Your Honor, with respect to the
13 affidavit, I just have to find a copy of it. We do object to
14 paragraphs 14 -- we don't object to the CV. So, that's no
15 objection to that.
16 THE COURT: May I have a copy of this exhibit?
17 MR. GARBUS: Your Honor, you have already made
18 rulings on the previous affidavit. I would think those would
19 be appropriate here in not accepting Professor Appel's --
20 THE COURT: Tell me what the paragraph is you are
21 objecting to, Mr. Mervis.
22 MR. MERVIS: Paragraphs 1 through 13, I think are of
23 dubious relevance, but we don't have any particular objection.
24 14 through 19, we do object to on the grounds of
25 relevance. We also in particular object to that part of
1106
1 paragraph 14 that discusses what appears on various websites
2 on two grounds; No. 1, that it's not the best evidence, and
3 No. 2, it's hearsay.
4 THE COURT: Let me just look at it.
5 MR. GARBUS: Your Honor, to save time, you might want
6 to just take it subject to those rulings.
7 THE COURT: Just give me a moment.
8 What about Attachment B, Mr. Mervis?
9 MR. MERVIS: Your Honor, I believe that this exhibit
10 is already in evidence.
11 THE COURT: So, then you don't have a problem with
12 it?
13 MR. MERVIS: Well, no, your Honor. I have no
14 problem, assuming that your Honor's comments with respect to
15 the exhibit and its weight, I assume, would apply with respect
16 to this witness as well.
17 THE COURT: I'm not sure I made any.
18 MR. MERVIS: Your Honor, let me see if I can find
19 the --
20 THE COURT: All right, look --
21 MR. MERVIS: The answer is no. I don't have an
22 objection. It's reflected at page 755 of the trial
23 transcript.
24 THE COURT: O.K., fine. So, I'm going to take BL out
25 to the extent that the witness in BL offers opinions on the
1107
1 law. I'm obviously not going to consider it.
2 To the extent that paragraph 14 relates to what he
3 saw on other people's websites, what about that, Mr. Garbus?
4 MR. GARBUS: Let me ask him the question.
5 BY MR. GARBUS:
6 Q. Did you see this material on other people's websites?
7 A. Yes.
8 MR. MERVIS: I did. The material discussed in
9 paragraph 14 I found by searching the web for references to
10 DeCSS and taking particular note of those that were describing
11 it in a scholarly context.
12 THE COURT: That's adequate, as far as I could see.
13 So, BL is received with its attachments except to the
14 extent it contains legal opinions.
15 And I think that takes care of that.
16 MR. GARBUS: Thank you. I have no further questions.
17 THE COURT: Thank you. Any cross-examination?
18 MR GOLD: Your Honor, I thought I'd get through the
19 trial without making any requests for a sidebar, but by 15
20 minutes I lost. May we approach?
21 THE COURT: All right.
22 (At the sidebar)
23 MR GOLD: Your Honor, as a result of the testimony of
24 the last witness, which we didn't expect based on his
25 deposition or anything, as I said before, I need about 15
1108
1 minutes or 20 to decide whether we have any cross for him at
2 all and whether we were going to go forward with our efforts
3 to put in a witness on rebuttal.
4 So, what I'd like to do, with your Honor's
5 indulgence, is take the lunch break 15 minutes early, come
6 back 15 minutes earlier than usual, and then announce whether
7 we'll cross him and whether we have any rebuttal case and who
8 it would be and how long.
9 THE COURT: Any problem?
10 MR. GARBUS: That would be fine.
11 MR. ATLAS: I said something which probably should be
12 clarified. Before we close, we would have to deal with all
13 the documents.
14 THE COURT: They have their documents, too.
15 MR. GARBUS: That would be part of the case before
16 anybody closes.
17 MR. ATLAS: You'd be glad to know we took our seven
18 boxes and narrowed it is down to three-quarters of a box.
19 THE COURT: Good.
20 MR. MERVIS: I did note it was a small case about
21 what was in here, I was right about that.
22 MR. ATLAS: We provided plaintiff's counsel with the
23 list of exhibits. I'm sure they'll have some objections, too.
24 THE COURT: We will deal with that later.
25 (In open court)
1109
1 THE COURT: We are going to take the lunch recess
2 now. I will see everybody back at a quarter to 2 and we will
3 go from there.
4 (Luncheon recess)
5 (Continued on next page)
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1110
1 A F T E R N O O N S E S S I O N
2 (In open court)
3 THE COURT: Please be seated. Good afternoon folks.
4 Any cross-examination for this witness?
5 MR. MERVIS: Yes, your Honor, a little bit.
6 THE COURT: Okay.
7 ANDREW APPEL, resumed.
8 CROSS-EXAMINATION
9 BY MR. MERVIS:
10 Q. Good afternoon, Professor Appel. Am I correct in
11 understanding that you have never personally used the DeCSS?
12 A. That's correct.
13 Q. And that would include the encrypted DVD?
14 A. That's correct.
15 Q. And am I also correct that in connection with your
16 teaching at Princeton, you've never used the DeCSS code, is
17 that correct?
18 A. That is also true.
19 Q. And apart from the presence of your declaration in this
20 case on your website, your website doesn't discuss DeCSS in
21 any way, is that right?
22 A. That's right.
23 Q. And is it, also, correct that you have never analyzed the
24 DeCSS in object code form?
25 A. That's right. I've analyzed other programs in connection
1111
1 with reverse engineering of encryption software in object
2 code, but not DeCSS in particular.
3 Q. Thank you. Now, do you recall testifying this morning on
4 direct that you used the Google search engine to find DeCSS
5 code on the Internet?
6 A. That's right.
7 Q. And am I correct in understanding that your search was you
8 typed in the character stream DeCSS?
9 A. That's right.
10 Q. And you got, what, about a hundred hits or so?
11 A. At least a hundred.
12 Q. At least a hundred. Now, am I correct in understanding
13 that when you conducted that search, you were looking for
14 DeCSS source code, is that right?
15 A. My primary interest at that time was to look for the
16 source code.
17 Q. Now, approximately how many sites did you visit, that were
18 reported under search result, before you actually found the
19 source code?
20 A. I don't recall. My guess is somewhere between five and
21 ten.
22 Q. And with respect to those five or ten sites that you
23 visited before you found the source code, is it correct that
24 you don't know whether object code was present on any of those
25 sites?
1112
1 A. I don't recall.
2 Q. Now, once you found the source code after visiting five to
3 ten sites, did you make any further searches of any other
4 sites that were reported on your search result?
5 A. Yes, I did. I was interested in seeing how many of the
6 sites were posting DeCSS in a scholarly context.
7 Q. I see. And how many such sites did you visit?
8 A. Out of the sites I visited, at that time I identified four
9 in particular.
10 Q. Four of those you visited. Okay, four had -- you claim
11 had some sort of scholarly commentary on them?
12 A. Right, a discussion of DeCSS in a scholarly context.
13 Q. I see. Now, how many sites total did you visit to find
14 those four?
15 A. My estimate is on the order of a hundred.
16 Q. On the order of a hundred. Now, of those hundred, how
17 many of them contain or had posed to them either DeCSS source
18 code or object code?
19 A. My guess is it would have been on the order of 20 or 30.
20 Q. So roughly a quarter, less than a quarter?
21 A. I just don't recall.
22 THE COURT: You don't need a Ph.D. in engineering
23 from Princeton to do that one.
24 MR. MERVIS: Your Honor, agreed, and I will not do
25 that one. My math is not that good.
1113
1 Q. Now, is it correct, Dr. Appel, that the search result from
2 a search engine is driven by the character stream you type in,
3 is that right?
4 A. That's right.
5 Q. And in this case the character stream was DeCSS, is that
6 right?
7 A. That's right.
8 Q. Am I correct in understanding that the Google search that
9 you did not tell you how many of the site hits you got
10 actually had on them either DeCSS source code or object or
11 binary code, right?
12 A. That's right.
13 Q. Were any of the sites that were reported in your search
14 results offered on the same ISP?
15 A. I don't recall. The same ISP as each other?
16 Q. Correct.
17 A. I don't recall.
18 Q. And do you know whether any of the sites that were
19 reported on your search result were foreign sites?
20 A. Yes. Some of them were foreign sites.
21 Q. About how many?
22 A. I don't -- I didn't keep track of the proportion.
23 Q. And were there instances in which the same site was
24 reported more than once in your search result?
25 A. I don't remember.
1114
1 Q. That's something that's -- excuse me. I'm sorry. I just
2 ate lunch. That's something that's common with search
3 engines, isn't it?
4 A. It's common to have different pages on the same site pop
5 up in the same search.
6 Q. Do you know whether any of the sites that were reported in
7 your search result merely linked to other sites where either
8 it did not have DeCSS code posted or were simply inactive?
9 A. Some of the sites I found didn't have DeCSS and didn't
10 link to it. They just mentioned it. Some of them linked to
11 it. Some of them had it directly. I didn't keep count of
12 which was which.
13 MR. MERVIS: Can I take a moment to consult, your
14 Honor?
15 THE COURT: Yes.
16 MR. MERVIS: Nothing further, Judge.
17 THE COURT: Thank you, Mr. Mervis. Any redirect?
18 MR. GARBUS: We have no redirect.
19 THE COURT: Thank you. You're excused.
20 (Witness excused)
21 THE COURT: Any witnesses for the defendants?
22 MR. GOLD: Oh, excuse me.
23 MR. GARBUS: That's the end of live witnesses. We
24 have some depositions of witnesses who will not be here, but I
25 guess that becomes the subject of later discussion.
1115
1 THE COURT: Right. Mr. Gold, will there be any
2 rebuttal witnesses?
3 MR. GOLD: There will not be, your Honor.
4 THE COURT: Okay. Well, then I think the logical
5 order is to take up first the plaintiffs' and then the
6 defendants' documents that remain unresolved and conclude the
7 taking of evidence. Mr. Gold. Mr. Sims.
8 MR. SIMS: Yes. First of all, I would just like to
9 correct the record if I might. On page 794, on July 20th, we
10 had moved in four exhibits, and they were 1.13, 1.14, 1.15 and
11 1.16, and the record reflects 113, 114, 115 and 116, and I'd
12 like the record to be correct.
13 THE COURT: Tell me the page number.
14 MR. SIMS: 794, I believe. July 20th.
15 THE COURT: July 20th.
16 MR. SIMS: July 20.
17 THE COURT: Okay. That's better. The page hasn't
18 come up yet. All right. Is there any dispute about it, first
19 of all? Mr. Garbus.
20 MR. GARBUS: Excuse me. Mr. Atlas will handle this.
21 THE COURT: Mr. Atlas.
22 MR. ATLAS: Certain dates were not --
23 MR. SIMS: Okay. There were four exhibits moved in
24 on the 20th, which were 1.13 through 1.16, and the transcript
25 refers to them as 113, 114, 115, and 116.
1116
1 MR. ATLAS: Those are the demonstratives.
2 THE COURT: Look, my notes reflect that what --
3 MR. SIMS: They were the hacker magazines. I'm
4 sorry.
5 THE COURT: My notes reflect at that time what were
6 113, 114, 115, 116, 1.11, 1.1, 1.2, 1.4, 1.6, 1.8, 1.7, 1.5,
7 1.3, and 1.12.
8 MR. SIMS: They should all have a decimal point after
9 the first one. They were each quarterly magazines that Mr.
10 Garbus gave to the witnesses.
11 THE COURT: So it's not Plaintiffs' 113. It's 1.13
12 through 1.6. Any disagreement with that, Mr. Atlas?
13 MR. ATLAS: No.
14 THE COURT: Okay. That correction is made.
15 MR. SIMS: Secondly, we had given last Wednesday, I
16 think, a list of plaintiffs' exhibits that we wanted to move
17 in, and the defendants gave me a list of objections, and they
18 stated positions with respect to all of the exhibits on our
19 list, other than the last three.
20 And I've typed this up, and I've given it to Mr.
21 Atlas this morning. And, I think, assuming that it's
22 complete -- or we can correct it -- one way to do this would
23 be to mark this, and then you'll have -- we can do it another
24 way as well. But this is a list of exhibits we want, together
25 with those objections that they have, and I think there are
1117
1 just three more to go.
2 THE COURT: Just hand it up.
3 MR. ATLAS: On 62, you have our objection being
4 hearsay. I'm told that what's missing is we object as to
5 completeness as well.
6 MR. SIMS: 62.
7 MR. ATLAS: That's fine.
8 MR. GARBUS: Your Honor, would it help you if we did
9 this outside of your presence and just give you the exhibits
10 or would that --
11 THE COURT: I'm afraid that I'll get 1500 documents
12 that way.
13 MR. SIMS: I think we can do it pretty efficiently.
14 THE COURT: All right. Hand this up, and let's get
15 it resolved. I appreciate the suggestion, but I would just
16 assume get this nailed down once and for all.
17 All right, Mr. Sims, hand it up. Let's go.
18 MR. SIMS: Here it is, your Honor. I think it should
19 be marked for convenience as 132.
20 THE DEPUTY CLERK: Mark this one 132?
21 MR. SIMS: Your Honor, would you like it as an
22 exhibit?
23 THE COURT: It's 132 for identification. Let me just
24 look at it.
25 (Pause)
1118
1 THE COURT: All right. So the following are received
2 without objection. Plaintiffs 1, Plaintiffs 4, Plaintiffs 28,
3 Plaintiffs 51 through 55, inclusive, Plaintiffs 64, 69, 72,
4 79, 126 and 129.
5 (Plaintiffs' Exhibits 1, 4, 28, 51-55, 64, 69, 72,
6 79, 126 and 129 received in evidence)
7 MR. ATLAS: We provided counsel for plaintiffs a list
8 of the exhibits we wanted to move in. I haven't gotten
9 objections yet, but --
10 THE COURT: Wait a second. Before we get to your
11 exhibits, let's deal with the rest of them. All right. Do I
12 correctly understand, Mr. Atlas that as to Plaintiffs' 2,
13 which consists of 2.1 through 2.34, physical exhibits, you
14 object only to 2.1? Is that right?
15 MR. ATLAS: Hold on. Do you have the letter you sent
16 to me?
17 MR. SIMS: I gave it to you this morning.
18 (Pause)
19 MR. ATLAS: I believe in terms of 2, it was just
20 given to me as Plaintiffs' Exhibit 2. Those were the
21 demonstrative exhibits, the photographs.
22 MR. SIMS: Your Honor, Exhibit 2 was a group of DVDs,
23 commercially marketed, some from each plaintiff, and then
24 Exhibit 3 were the copyright certificates.
25 THE COURT: Do you have any problem with any of them?
1119
1 MR. ATLAS: No.
2 THE COURT: Plaintiffs' Exhibit 2.1 through 2.34 and
3 the corresponding certificates of registration, which are 3.1
4 through, I assume, 34, whatever it is, are received.
5 (Plaintiffs Exhibits 2.1 through 2.34 and 3.1 through
6 3.34 received in evidence)
7 MR. ATLAS: For the record, we have, I believe,
8 copies of the copyright forms. We don't have copies of the
9 films. I suppose if we're going to put them in, we should
10 have a set.
11 MR. SIMS: We could stipulate to the relevant fact.
12 The relevant fact is simply that all of the plaintiffs have
13 commercially marketed DVDs protected by DeCSS. We have
14 testimony of that, which are registered. I mean, we don't
15 need the Court to look at all the movies.
16 THE COURT: So stipulated? So I'm not getting 34 DVD
17 movies here?
18 MR. SIMS: We're glad to make them available.
19 THE COURT: Okay. Next we have Plaintiffs' Exhibit
20 5. My exhibit book is blank. There is no Plaintiffs' Exhibit
21 5 here.
22 MR. ATLAS: We understand Plaintiffs' Exhibit 5 were
23 copies of pirated CDs, is how they were described to me.
24 MR. SIMS: Your Honor, we'll withdraw Exhibit 5.
25 THE COURT: That takes care of that. All right. The
1120
1 next objection as noted is Plaintiffs' 59. What's going on
2 here?
3 MR. SIMS: Your Honor, 59 through -- do you have the
4 exhibit list, your Honor, or not? 59 through 73, whichever of
5 those are on this list, were all web pages that were attached
6 to the Boyden declaration. I had an agreement with Mr.
7 Hernstadt that all of those exhibits could come in. We were
8 discussing the separate question as to whether the allegations
9 and the affidavit could come in.
10 We finally decided at the time Mr. Boyden was brought
11 up not to put him on with respect to the allegations in his
12 affidavit on reliance of Mr. Hernstadt's agreement that the
13 exhibits, which are simply web pages, would come in, and we
14 would have a stipulation of authenticity with the other side
15 that we've signed. I believe they've signed, and I think --
16 I'm not sure the record reflects that stipulation.
17 If I might ask, maybe this would be an appropriate
18 place to get the stipulation of authenticity on the record,
19 and then I can't imagine that there's a problem with these web
20 pages.
21 MR. HERNSTADT: Your Honor, we agreed that rather
22 than require Mr. Boyden to come in up here and look at the
23 screen and say this is a screen shot, that we would accept the
24 representation that that is what he would say, and the screen
25 shot could come in for what they were, which is a screen shot
1121
1 of a particular web page on a particular date.
2 THE COURT: So I take it there's no objection to any
3 of 59 through 73 to the extent that they're offered as screen
4 shots of the web pages? They're dated as of the dates they
5 were taken. Correct?
6 MR. HERNSTADT: Correct.
7 THE COURT: Okay, now -- and then I assume further
8 that the question of whether anything that may appear on them
9 is to be considered for the truth is going to be considered
10 under the broad analysis that we discussed previously, which
11 I've asked you for briefing?
12 MR. SIMS: Yes.
13 THE COURT: Mr. Hernstadt.
14 MR. HERNSTADT: Yes.
15 THE COURT: So that takes care of 59 to 73. My law
16 clerk has just handed me a note to remind you that the
17 deadline I established last week, having gone without
18 objection, I'm taking notice of the specific paragraphs of the
19 Microsoft findings that I alerted you to.
20 MR. SIMS: Your Honor, we had actually said it was
21 all right, and with respect to the Linux matter, paragraph 50
22 in that opinion relates to Linux.
23 THE COURT: Yes. I'm familiar with that.
24 MR. SIMS: And we don't have any objection to
25 paragraph 50.
1122
1 MR. GARBUS: Your Honor, I would like to take a look
2 at it if I can and get back to you. May I? Thank you.
3 THE COURT: Okay. We'll move ahead while you take a
4 look at it.
5 MR. GARBUS: I don't see how we could have an
6 objection to it anyway. It's a court objection.
7 THE COURT: Of course you can have an objection to it
8 as a matter of fact. Courts make all sorts of funny findings
9 of facts as I'm told.
10 MR. ATLAS: 74, I believe.
11 THE COURT: 74. Mr. Sims.
12 MR. SIMS: Your Honor, if I could go briefly out of
13 order. 77 and 93 were attached to the deposition of Mr.
14 Kenswil, which we're offering. he's unavailable. We've
15 offered it. He's a music industry executive. He's talking
16 about the sorts of harm that can arise. 77 and 93 were
17 testified to in the deposition, which we'll offer in a bit, as
18 providing the bases in part of his opinion, and, therefore,
19 they come in, I believe, under 703 for that purpose as you
20 ruled with respect to other matters.
21 I don't recall actually that he testified that he
22 relied on 74 through -- and 75 and 76, so I guess --
23 THE COURT: So you're withdrawing 74 to 76?
24 MR. SIMS: Yes.
25 THE COURT: 93 and 77.
1123
1 MR. SIMS: And 93.
2 THE COURT: And 93. Any objection to they're coming
3 in under 703 for the limited purpose that it so contemplates?
4 MR. ATLAS: I don't have a recollection that the
5 witness testified he relied on them. They were provided in a
6 packet by Mr. Gold of things that he relied upon or he would
7 be asked about. If the transcript reflects that he relied on
8 them, I guess I would have no objection to they're coming in
9 for that limited purpose.
10 THE COURT: I'm going to take them in for that
11 limited purpose subject, of course, to the predicate being
12 laid in the transcript.
13 (Plaintiffs' Exhibits 77 and 93 received in evidence)
14 MR. ATLAS: I guess I have a separate objection to
15 his testimony all together, as well as these exhibits. It's a
16 different case. It's a music case. I think what may or may
17 not have happened in the music case with Napster is not
18 relevant to what's before us now.
19 THE COURT: You want to respond to that?
20 MR. SIMS: Sure. He testified in the deposition
21 about the quickness, the speed with which this new technology
22 began causing substantial harm. And since, I think, one of
23 the issues here is the reasonable apprehension of harm that
24 the plaintiffs face, I think his testimony is relevant to that
25 issue.
1124
1 THE COURT: All right. I'm going to take it for what
2 it's worth, but I'm not sure it's worth much. Okay that takes
3 us to 92. What about 92, Mr. Sims?
4 MR. SIMS: 92, I think, I do not recall that he
5 expressly -- it's the same thing. I don't recall that he
6 expressly relied on it.
7 THE COURT: So it's withdrawn.
8 MR. SIMS: Yes.
9 THE COURT: Okay, 93.
10 MR. SIMS: We've just covered. It was 93 and 77 that
11 I believe you did rule in.
12 THE COURT: 96.
13 MR. SIMS: That is the deposition of Mr. Corely as
14 designated. I believe we moved that in some days earlier. If
15 not, we would certainly move it in as a completion of the
16 cross-examination under the ruling that you made, I believe,
17 last week.
18 THE COURT: Any objections to 96? While you think
19 about that, Mr. Atlas, you've got a couple hundred pages of
20 material here, Mr. Sims. Now -- maybe 400. I mean, do you
21 really want me to read this? I'm serious. I mean, we had the
22 man on the stand. Is there anything in there that I need to
23 read to decide this case?
24 MR. SIMS: There are admissions in there, your Honor.
25 I mean, as I understood the rulings you had made, it was that
1125
1 a party couldn't call its own witness and then dump in, if you
2 would, the deposition, but that with respect to a witness
3 called by the other side, that could be added in terms of --
4 THE COURT: Well, sure. But haven't you picked out
5 the gems, or is that what these little black lines in the
6 margin mean?
7 MR. SIMS: Well, with respect to every deposition
8 that's been handed to you, you're getting a complete
9 transcript, but there are lines on the side that are the
10 portions designated.
11 THE COURT: I see.
12 MR. SIMS: In some of them, there's no distinction
13 between who designated because it doesn't really matter. So
14 it's not that the whole deposition is being offered. It's
15 just the pieces that have been marked which comprises the
16 markings by both sides.
17 MR. ATLAS: I believe we're objecting to portions of
18 their designations, but I believe that would be reflected
19 before.
20 THE COURT: Pardon me.
21 MR. ATLAS: In what we are submitting.
22 MR. SIMS: Your Honor, we might be able to pare down
23 depending on the rest of the rulings here.
24 THE COURT: Look, for the sake of wrapping this up,
25 I'll take the designated portions of 96 subject to whatever
1126
1 objections have been made. And if I don't in the course of my
2 findings rely on something in 96 or any other deposition, you
3 should just assume it's not in if it's objected to.
4 MR. ATLAS: Your Honor, I don't know whether Exhibit
5 96 reflects our objections to the testimony. Does it?
6 THE COURT: Not that I see, other than the form
7 objections, of course.
8 MR. ATLAS: I think Mr. Rollings who handle the
9 depositions objected to some of the portions that you tried to
10 get in. I just want to make sure before they go to the Court.
11 MR. SIMS: Your Honor, there's an index in the front.
12 If Mr. Rollings has given us a revised version of that, that
13 has a few more objections on it, I have no objection.
14 THE COURT: There's nothing here. The index in the
15 front just includes plaintiffs' designations.
16 MR. SIMS: And there's no objections.
17 THE COURT: Correct.
18 MR. SIMS: I don't have a problem if it's a
19 mechanical problem that you don't have them in court.
20 MR. ATLAS: I mean, we could present, if the Court
21 wishes, depositions, color marks showing who objected to
22 what -- I think Mr. Rollings -- well --
23 MR. SIMS: It is the defendants' testimony in case.
24 THE COURT: I know. Look --
25 MR. ATLAS: I think we have designations to which we
1127
1 objected to and, I could provide the Court with that
2 information.
3 THE COURT: Do that. Okay, fine. That takes care of
4 96. 97?
5 MR. ATLAS: I think that was actually offered into
6 evidence. I think even accepted at one point. =20
7 THE COURT: It looks very familiar.
8 MR. ATLAS: The one that had the words at the bottom.
9 MR. SIMS: I'm sorry. 97 is in evidence on the 18th.
10 THE COURT: So, 97 is in. 98.
11 MR. ATLAS: 97 is in with an objection to those words
12 that have been inserted by the witness.
13 THE COURT: And then I think the witness testified to
14 the words, or whatever the transcript shows, it shows.
15 MR. ATLAS: Fine.
16 THE COURT: 98, what is this? This is the download
17 of all the links on the Joint 2600 or something else?
18 MR. SIMS: It's a sample of those, your Honor.
19 THE COURT: Is there any objection on 98?
20 MR. ATLAS: I think for completeness, it's probably
21 hearsay.
22 MR. SIMS: I think the stipulation of authenticity
23 covers it, your Honor.
24 MR. ATLAS: Well, it's not just links. There's also
25 a lot of text. Stop DMCA. Stop download here. I guess I
1128
1 don't know what they're trying to get it in for.
2 MR. SIMS: It's not offered for the truth. It is
3 what it is, and I think it's relevant to questions.
4 THE COURT: I'm taking it on that limited basis.
5 (Plaintiffs' Exhibit 98 received in evidence)
6 THE COURT: Okay. Moving right along. 127, kenswil
7 deposition.
8 MR. SIMS: Yes. If your Honor wants to take the
9 depositions -- well, these are the depositions we're moving
10 in. Mr. Kenswil is the music executive that I referred to
11 earlier. We took his deposition. We established on the
12 record that he would be unavailable.
13 THE COURT: All right. So that's subject to the
14 ruling I already made.
15 MR. ATLAS: We have no objection to the entire
16 testimony coming in, but we've noted that --
17 THE COURT: Yes, I understand. I'm just not going to
18 resolve it right now. I'm going to take it, and if it's worth
19 something -- but I understand your relevance objection, and I
20 am not supposed to be trying the music case here. Okay.
21 MR. ATLAS: We also designated an -- I guess we
22 objected to portions of Mr. Kenswil's deposition, and in
23 addition to relevance, I don't know whether those are
24 reflected on what your Honor has.
25 THE COURT: They are not.
1129
1 MR. SIMS: I don't have any problem with their
2 substituting a copy.
3 THE COURT: You'll get me these objections by
4 tomorrow.
5 MR. GARBUS: I have looked at section 50, and I do
6 object to it, paragraph 50.
7 THE COURT: If you'll pass it back to me, I will see
8 if it's something that's worth taking further discussion. All
9 right. If you don't want it, you don't want it. I think your
10 witnesses basically testified to most of it today.
11 MR. GARBUS: Some of it.
12 THE COURT: That issue is closed. Okay. 130 and 131
13 I do not have.
14 MR. SIMS: We've both been working on this the last
15 few days. The one is for the deposition of Rick Burns that
16 was taken during the trial, if you'll recall, your Honor, and
17 the other is that during the trial deposition of Professor
18 Ramadge, with respect to the demonstration that he did and I
19 think -- I think we can both give your Honor those
20 designations with whatever objections we have in the way we
21 will with respect to any other.
22 THE COURT: Okay. I will take those on the same
23 basis as all the other depositions. I take it that's the end
24 of plaintiffs' case.
25 MR. SIMS: Yes, your Honor. Thank you.
1130
1 THE COURT: Okay. Mr. Atlas, you're up.
2 MR. ATLAS: Do the documents first, and then we'll
3 deal with the deposition afterwards.
4 THE COURT: Do the documents first.
5 MR. ATLAS: It may not be as easygoing as with
6 plaintiffs' exhibits. Where's the box?
7 Well, what I'll present the Court with is a box of
8 documents that we would like to offer on our case. I've got
9 an updated master exhibit list of everything that we had
10 originally designated, and then I have a shortened list of
11 just what we're dealing with now. I don't know whether this
12 many be helpful to you. I'm happy to provide to the Court
13 another inch and a half of paper. You could throw it away if
14 you want.
15 THE COURT: Here we are in a paperless society.
16 MR. ATLAS: This is just what we're dealing with now.
17 That's all that's relevant for today.
18 MR. SIMS: Your Honor, if I might, we were provided
19 with their list, I think, on disk, and we've printed it out
20 and added in the "objection" column all of our objections.
21 I'm glad to go --
22 THE COURT: Why don't we swap.
23 MR. SIMS: Here it is, but unfortunately it's my only
24 copy. Can I get a copy of it? I have it on the machine, but
25 if I give it to you, I won't have it. It was just completed
1131
1 early this morning.
2 MR. ATLAS: I haven't seen it.
3 THE COURT: Well, with all due respect Mr. Sims, I
4 don't think this is really going to help me very much. Are
5 there any exhibits on here you don't object to?
6 MR. SIMS: I believe there are a few that we don't
7 object to, yes.
8 THE COURT: Okay. I see them. They're fairly
9 jumping out at me. Defendants' Exhibit CS is received without
10 objection.
11 (Defendants' Exhibit CS received in evidence)
12 THE COURT: That one I see. Defendants' Exhibit FH
13 is received without objection.
14 (Defendants' Exhibit FH received in evidence)
15 MR. ATLAS: Your Honor, I'm told that we have two
16 more exhibits.
17 THE COURT: Let me just -- does that exhaust the ones
18 that aren't objected to?
19 MR. SIMS: I'm not sure, your Honor. The ones that
20 are in yellow, we've never gotten a copy of. So I haven't
21 been able to formulate that position one way or the other.
22 THE COURT: Well, that does it out of this monster
23 list. Those are the only ones that are no objection.
24 MR. ATLAS: Our task is much easier now. We have two
25 exhibits which are not on that list, and I apologize for the
1132
1 lateness of the list. These were two documents that were
2 shown to Mr. Kenswil. Our position is that they complete the
3 exhibits that he wishes to offer for his deposition, the
4 things that he allegedly relied on. I would ask that these be
5 admitted also to counter those to the extent the Court wishes
6 to deal with those issues. It's Court Exhibit CCR and Exhibit
7 CCS. I'll give a copy to Mr. Sims.
8 THE COURT: You know, frankly, gentlemen, I'm
9 virtually at a loss. I figured there are about 150 exhibits
10 on this page or these pages. There are no descriptions of any
11 of them. Can't you people work this out?
12 MR. SIMS: Your Honor, we tried.
13 MR. ATLAS: Well, we haven't -- I even gotten your
14 objections to the documents. I'm happy to spend a day and try
15 to go through some of this stuff.
16 MR. SIMS: I was hoping to get the list on Saturday
17 morning. I had a lot of people waiting around to work on
18 them. Given when we finally got them, this is the best we
19 could do. We might make some progress if we could spend any
20 time together, but given when we got the lists --
21 MR. ATLAS: You want a hand?
22 THE COURT: Oh, for God sake. Come on, guys.
23 MR. ATLAS: I have two more.
24 THE COURT: You've got Professor Appel's affidavit in
25 here.
1133
1 MR. ATLAS: The declarations are in there. They've
2 been marked.
3 THE COURT: There's all kinds of stuff in here.
4 MR. SIMS: Your Honor, much of what's in that box is
5 stuff that under the rulings you've already made generically
6 shouldn't be there at all, including declarations of various
7 witnesses they've put on the stand.
8 THE COURT: I mean, to quote Judge Ward in another
9 case, "The purpose of evidence is to persuade, not to
10 inundate."
11 All right, look, you people are going to have to try
12 to reach agreement on this or, at least, to narrow down the
13 list in light of rulings that have been made at trial. I'll
14 resolve whatever you can't resolve, but, I mean, my reaction
15 in looking at all this is that it seems like overkill, and
16 that in light of what I've done so far, you ought to be able
17 to resolve these things.
18 MR. ATLAS: I mean, having been the one that went
19 through this weekend all seven of our boxes, I speak from
20 personal experience.
21 THE COURT: You definitely get the purple heart.
22 There's no question about that.
23 MR. ATLAS: What I tried to do --
24 THE COURT: You've got an affidavit in here from
25 Professor Samuelson. I mean, if he's not testifying live, the
1134
1 objection is hearsay. It's sustained, right? Is there any
2 other basis to do this? Right?
3 MR. ATLAS: We'll take the documents back.
4 THE COURT: Okay. Look, I'm not trying to deprive
5 you of any evidence that's probably in here. Just, please,
6 edit first, and really I understand you all have been working
7 very hard. I do. Okay.
8 MR. ATLAS: My wife is very forgiving.
9 THE COURT: Oh, yes, I remember how forgiving my wife
10 used to be. Okay, let's deal with this CCR and CCS. Talk to
11 me, Mr. Atlas, about CCR.
12 MR. ATLAS: The studies that Mr. Kenswil referred to,
13 in such relied upon for his testimony, dealt with how much
14 money the music industry would be losing as a result of the
15 MP3 and the Napster issues. These studies, which were also
16 submitted in the Napster case in California, counter that and
17 show that, in fact, Napster has spurred sales in the music
18 industry. It's the flip side to what Mr. Kenswil was
19 testifying about.
20 THE COURT: Well, is this material that Mr. Kenswil
21 relied on in coming to his opinions, or is this a rebuttal of
22 Mr. Kenswil?
23 MR. ATLAS: I don't believe he relied on it. The
24 argument would be that it is a rebuttal or is more so offered
25 as completeness to the materials that they want in.
1135
1 MR. SIMS: I think under Rule 703, your Honor, that
2 just -- that dog won't hunt.
3 THE COURT: You spent too much time in Texas. Look,
4 I need to understand exactly what I'm dealing with here, Mr.
5 Atlas.
6 MR. ATLAS: These were not documents he relied on.
7 THE COURT: These are not documents he relied on. So
8 why aren't they simply hearsay? They're out-of-court
9 statements by declarants offered for the truth of the
10 statements made, because you claim that the truth of their
11 statements rebuts a witness who testified under oath in his
12 cross-exam.
13 MR. ATLAS: I also disagree with that. The point, I
14 guess, I'm making is that if your Honor is going to consider
15 some of these issues, your Honor is taking the documents Mr.
16 Kenswil relied upon for what they were worth, I would ask that
17 this presents a contrary view that may be useful to the Court
18 if the Court wants to --
19 THE COURT: That isn't the point. There are rules of
20 evidence. Kenswil was deposed, as I understand it, and he was
21 offered for cross-examination. Am I right?
22 MR. SIMS: Absolutely.
23 THE COURT: And he gave an opinion, and he said his
24 opinion was based on certain things. Am I correct?
25 MR. SIMS: Yes.
1136
1 THE COURT: And among the things he said the opinion
2 was based on was materials that the plaintiffs offered in
3 evidence. Am I right, Mr. Atlas?
4 MR. ATLAS: Yes.
5 THE COURT: And they offered those materials upon
6 which he relied, not for the truth of the matters and the
7 materials, but to illustrate the opinions and the basis for
8 the opinion. Am I right so far?
9 MR. ATLAS: I see where you're going.
10 THE COURT: Okay. Objection sustained to CCR and
11 CCS. Okay, anything else? You're going to try to work out
12 the exhibits. What else?
13 MR. ATLAS: We come to the depositions, and I guess
14 over the weekend, I got some letters from Mr. Sims and his
15 team to the effect that certain deposition -- they were going
16 to object to the admission of certain deposition testimony.
17 They refer to certain rulings of the Court, that I was
18 admittedly not here for the entire trial, but it was not my
19 understanding that the Court had made those rulings. But I'll
20 let him speak to the issue.
21 MR. SIMS: Your Honor, I believe you ruled in
22 accordance with what I think is clearly the prevailing law,
23 that to the extent that they called witnesses to the stand,
24 including, for example, the witnesses that were illustrative
25 this morning, after they're done, they just can't move in
1137
1 designations of those people's deposition.
2 And under that ruling, if it is, in fact, to be
3 adhered to, the following designated depositions that they've
4 offered should be excluded. Abelson, Appel -- Abelson is a
5 different category, I'm sorry. I'll get to Abelson in a
6 moment. Appel, who testified this morning. Craig, who
7 testified this morning. DiBona, who testified this morning.
8 Felton, who testified earlier. Einhorn, Pavlovich, Touretzky,
9 Ramadge, leaving aside the supplemental deposition, and
10 Peterson.
11 THE COURT: Now, do you have a reference in the
12 transcript to where you say I made this ruling?
13 MR. SIMS: I don't have a page reference, but I
14 remember precisely there was a witness they called earlier on.
15 I think it was Peterson. I think it was the first expert.
16 MR. HERNSTADT: Felton.
17 MR. SIMS: Professor Felton. And after the cross was
18 done on redirect, they then tried to add in the deposition and
19 declaration.
20 MR. ATLAS: I was here for that. It was the
21 declaration. As I recall, the reason your Honor didn't let it
22 in was it was not within the scope of the -- we tried to get
23 it in on redirect, and what your Honor said was that it wasn't
24 dealt with on cross.
25 THE COURT: Okay. I do remember that now. Now,
1138
1 look, Rule 32 sets out the parameters as to when you can offer
2 a deposition. Now, if I'm understanding Mr. Sims correctly,
3 he is saying that none of the ones he ticked off come within
4 Rule 32. Am I right, Mr. Sims? That's your position?
5 MR. SIMS: Exactly, your Honor.
6 THE COURT: So, Mr. Atlas, what about that?
7 MR. ATLAS: Part of this, I think, was the nature of
8 the trial, was to try and get the witnesses on, to try and be
9 as quick as possible. I had understood that we had permission
10 to put in depositions to cut down on some of the examinations,
11 both on direct and on cross. I think putting in these
12 transcripts will do that. I don't know that it's clearly
13 prohibited by Rule 32, and I think there's also an exception
14 in Rule 32 for exceptional circumstances.
15 THE COURT: Well, what makes this exceptional?
16 MR. ATLAS: In terms of keeping the trial time low
17 and trying to get the witnesses on and off.
18 THE COURT: Look, you guys told me at one point that
19 this was a three- to four-week trial, and I didn't raise any
20 objection to that. I'm glad you wound up sooner, but nobody
21 stopped you from putting in whatever you wanted to put in.
22 Look, if at any point in this trial I indicated that
23 I was going to take deposition testimony of a witness that was
24 not otherwise admissible under Rule 32, for the purpose of
25 economy, I will certainly live by the ruling, but somebody is
1139
1 going to have to show it to me. Otherwise I think Mr. Sims is
2 within his rights. And if you want to think about it
3 overnight and look in the transcript, that's okay.
4 MR. ATLAS: I know --
5 THE COURT: My deputy is trying to tell me something.
6 (Pause)
7 THE COURT: Well, my deputy is saying she thinks she
8 may remember something in the final pretrial conference. I
9 just don't.
10 MR. ATLAS: Yeah, I think --
11 THE COURT: Can we get the transcript? It's the July
12 12th transcript.
13 MR. GARBUS: I believe you said, Mr. Garbus, thank
14 you for the solution. That was my memory. Some solution.
15 THE COURT: Look, obviously what I'm concerned about
16 here is that it would be unfair for you to have offered
17 somebody on direct, put forward a fairly direct and narrow
18 direct, have Mr. Sims do the cross by direct, and then to have
19 him get sandbagged with hundreds of pages of testimony after
20 the fact. If that's what's happened, if that's what's being
21 offered, I'm not going to allow it.
22 MR. SIMS: Your Honor.
23 MR. ATLAS: There's no sandbagging. All of the
24 deposition designations were provided before the trial
25 started.
1140
1 THE COURT: No, I understand that, but it was not
2 meant in a pejorative way. Simply meant to describe surprise
3 borne of the fact that he had a right, perhaps, to rely on the
4 scope of your direct.
5 MR. ATLAS: These were depositions conducted by the
6 plaintiffs.
7 THE COURT: That doesn't matter. They're entitled to
8 take discovery in depositions. While my law clerk is getting
9 that transcript, let's go on to depositions in other
10 categories. Are there any?
11 MR. SIMS: There are a few. Professor Abelson at MIT
12 would be usable -- I guess it is usable under Rule 32. So we
13 don't have any objection to the designated Abelson.
14 THE COURT: Okay. So let's mark it as an exhibit,
15 and it will be Defendant's Number 1?
16 MR. ATLAS: I know we're not dealing with it now, but
17 I have a note that there is one other pieces of business
18 before we finish all this up.
19 Mr. Rollings put together the binders. I believe
20 he's better qualified to go through this.
21 MR. ROLLINGS: Each deposition is indexed as to what
22 would have been designated, what would have been objected to,
23 what has been counterdesignated, and if there are any
24 objections, they're objections to what is indicated. Each
25 transcript sets forth all the designations. And so those are
1141
1 cross-referenced and whose objecting to what.
2 There are three volumes. We had Tab 1 through Tab
3 24. So on each volume there is an index of the exhibit
4 number, which corresponds to each deponent or deposition being
5 offered. It is very self-explanatory if you go through it.
6 THE COURT: So there is an exhibit number attached to
7 each particular deposition.
8 MR. ROLLINGS: Each has an exhibit number on it, and
9 it's indexed at the beginning of each volume.
10 THE COURT: So, Mr. Atlas, what exhibit is Abelson?
11 MR. ROLLINGS: It's Tab 1. So the exhibit --
12 THE COURT: I see. All right. What's the next
13 defendants' exhibit number?
14 MR. ATLAS: Pardon me.
15 THE COURT: What is your next exhibit number?
16 MR. ATLAS: What's the next exhibit number?
17 THE COURT: We don't even need it. The three binders
18 are collectively market Defendants' Exhibit XXX for
19 identification. I'm taking the Abelson's deposition subject
20 to the objections and rulings on the objected parts. What
21 besides Abelson is not objected to?
22 MR. SIMS: Is not objected to?
23 THE COURT: Not objected to.
24 MR. SIMS: There are designated depositions which
25 reflect objections of the following witnesses to which they've
1142
1 offered, and we don't object.
2 THE COURT: Shoot.
3 MR. SIMS: Burns, Schumann, Reider, Fisher, King, and
4 Hunt.
5 THE COURT: All right. I will take those seven
6 deposition designations on the same basis as everything else.
7 MR. ATLAS: We have also Barbara Simons,
8 THE COURT: Pardon me.
9 MR. ATLAS: The depositions of Barbara Simons, who
10 was going to be an expert for our side, but did not testify.
11 Those depositions are designated.
12 THE COURT: They're in the XXX binders.
13 MR. ATLAS: Yes. Bruise Schneier.
14 THE COURT: So that's the next category, right?
15 MR. SIMS: I'm sorry, your Honor.
16 THE COURT: I'm asking, Mr. Atlas.
17 MR. ATLAS: There are several experts that did not
18 come and testify in court. Abelson, Schneier, and Simons were
19 the three experts whose depositions we designated, but who did
20 not come in to testify.
21 THE COURT: Abelson I already took.
22 MR. ATLAS: Correct. Simons and Schneier.
23 THE COURT: Are there objections to Schneier and
24 Simons?
25 MR. SIMS: There is an objection to Simons, your
1143
1 Honor. There is no establishment on the record that he was
2 unavailable.
3 MR. HERNSTADT: I informed the plaintiff that he had
4 informed us that he would not be able to come. He's basically
5 in San Jose and in Minneapolis, and we had put him on the
6 list. At the time of the deposition, they were also aware
7 that we intended to call him, but that he had limitations on
8 his schedule, that he might not be able to make it, and he
9 informed us that he was not able to make it. And I so
10 informed the plaintiffs.
11 THE COURT: Okay, Mr. Sims, what do you have to say?
12 MR. SIMS: What I have to say, your Honor, is that I
13 just checked with my colleagues at the table, and as far as we
14 recall, we were advised last week that they wouldn't be
15 calling him and, we think, for technical reasons, but that's
16 not the same as establishing that he's unavailable.
17 THE COURT: Well, he's more than a hundred miles
18 away, so Rule 32 is satisfied. So your argument is you were
19 told he wasn't going to be offered at all?
20 MR. SIMS: And we had cited to your Honor in an
21 earlier brief a Delaware case establishing that with respect
22 to experts, it's not simply where they are in the country, but
23 they have to establish unavailability.
24 THE COURT: Well, how about that, folks?
25 MR. HERNSTADT: I informed plaintiffs that he was
1144
1 unavailable. They did not say, well, you'll have to establish
2 his unavailability on the record. They accepted my telling
3 him that he wasn't going to be able to make it.
4 MR. SIMS: Your Honor, we haven't even designated the
5 Schneier deposition precisely because we were told he wouldn't
6 be presented, and I sent them a letter to which Mr. Atlas or
7 Mr. Hernstadt referred to last week saying --
8 THE COURT: You can put all this argument on Schneier
9 in two letters, not to exceed two pages, each tomorrow, and
10 I'll simply rule on it. What about Simons?
11 MR. SIMS: It's cumulative, your Honor, but other
12 than that, we don't have an objection.
13 THE COURT: All right. I'm taking Simons on the same
14 basis as the others. What other depositions?
15 MR. SIMS: There is a deposition they're offering of
16 Rick Hirsch, who is a former MPAA employee who lives in
17 Ardley, and I believe that under Rule 32, there is no basis
18 for the introduction of that deposition.
19 THE COURT: Mr. Atlas.
20 MR. HERNSTADT: Rick Hirsch was the head of
21 anti-piracy up until April of this year. When we saw his
22 deposition, the MPAA acted as an interceder and informed us
23 that he lives half the year in LA and half the year in
24 Washington, that he's bicoastal on his job and offered his
25 deposition in California or here.
1145
1 THE COURT: Well, that was months ago.
2 MR. HERNSTADT: That was last month. That was July.
3 MR. SIMS: At the time of his deposition, he moved to
4 New York. He so testified, and he's working for the ISTA
5 downtown.
6 THE COURT: What does his deposition say about where
7 he lives? Presumably you have it right there, Mr. Atlas.
8 MR. ATLAS: I believe he said Rye.
9 THE COURT: Objection sustained. What else?
10 MR. SIMS: Your Honor, they've offered the
11 depositions of Michael Eisner and Jack Valenti. Those we
12 object to on grounds of relevance. Relevance, your Honor.
13 THE COURT: All right. I'm going to take them
14 subject to ruling on that. I mean, you know, I read Valenti,
15 and my general recollection of it is that there's
16 substantially nothing relevant. But I'm not going to simply
17 exclude the whole thing on the basis of that broad
18 recollection. So I'll look at it. If I find anything
19 relevant, I'll rely on it, and if I don't, consider that
20 they're not in.
21 MR. SIMS: Your Honor, that completes, as far as I
22 know, except that I would ask the Court for permission for us
23 to just check the indexes that we've been exchanging with
24 respect to objections, to make certain that the Court's copies
25 have the most updated copies we each have. If I could do that
1146
1 with Anna or --
2 THE COURT: You're welcome to do that. Now, let's
3 come back to that other point about depositions. The
4 discussion at the pretrial conference about depositions was
5 this. Mr. Garbus said that with respect to long depositions
6 of people like Schumann, who would be giving direct, he saw no
7 purpose in repeating on cross lengthy cross-examination that
8 he had done in their depositions, and that he wanted to put
9 the depositions of those witnesses in in order to curtail the
10 length of their cross. And that's at page 41.
11 And I went along with that idea on the following
12 page. Now, whose deposition were we talking about a few
13 minutes ago?
14 MR. GARBUS: It was not one of the plaintiffs'
15 witnesses. It was something else, your Honor.
16 MR. ATLAS: The witnesses that we had called. The
17 experts that we had called and whether we could get our
18 designations in on those witnesses.
19 THE COURT: If there's anything else in the record,
20 please call to it my attention by tomorrow, but this is what I
21 think I remember. So that would imply that I will sustain the
22 Rule 32 objections as to depositions of the people you called
23 live. Okay. Anything else with respect to evidence?
24 MR. ATLAS: There's one other point. I believe
25 during one of the witnesses, we offered and it was accepted
1147
1 the licenses of the DVD-CCA.
2 THE COURT: I believe you are right.
3 MR. ATLAS: And your Honor took it and filed it under
4 seal. I'd like to make a motion to unseal it. As I
5 understand, the copy of a declaration from John Hoy, who I
6 understand runs the DVD-CCA, he filed an affidavit in the
7 California action and attached as an exhibit, I think, a
8 form -- one of the form DVD-CCA licensees.
9 In reading through the documents, I think he had
10 originally filed the affidavit and included the DeCSS code,
11 which was a big brouhaha because he filed in it open court and
12 then that aspect of it was sealed. But as I understand, the
13 license agreement --
14 THE COURT: You place all this reliance on these
15 orders, and every year there is another classic case. I mean,
16 last year it was the SEC producing inadvertently their
17 prosecution memorandum in a civil case. The year before that
18 the F.B.I. attached some super secret document out in Arizona.
19 So this is this case's version.
20 MR. ATLAS: Anyway, the copy I have is Exhibit A
21 sealed, Exhibit B sealed, and then Exhibit C is the restated
22 DVD-CCA licensing agreement.
23 THE COURT: It looks like a blank form.
24 MR. ATLAS: The point is that -- yeah, it is blank,
25 the exhibit that we have offered, and we've offered all of the
1148
1 interim licenses among the exhibits that we have.
2 THE COURT: You didn't really.
3 MR. ATLAS: I did only because I couldn't read them.
4 I wasn't sure if they were all identical. And if I understand
5 that they're identical, I'll pull them out. I didn't want to
6 take the chance that one said something different, because
7 there was an original, and then there was a restated one and
8 there are points in there.
9 THE COURT: I had a feeling that box was too heavy.
10 MR. HERNSTADT: Just to save Mr. Atlas on this point,
11 it's not all of the licenses. There are over a hundred
12 licenses. It's a selection of licenses for different
13 purposes, for making hardware, for making players, for doing
14 different things. There are 12 different licenses, and it's a
15 selection. Maybe not as limited as it will be tomorrow.
16 THE COURT: All right. Work on it.
17 MR. ATLAS: In any event, I would make a motion to
18 unseal.
19 THE COURT: Write a letter with the other side
20 responding, and I gather that you ought to copy the DVD-CCA
21 lawyers on it.
22 MR. SIMS: They've been asking.
23 MR. ATLAS: Do they have an issue?
24 MR. SIMS: I don't know. I know they sent letters,
25 please, let us know.
1149
1 THE COURT: Okay. Any other evidence to be
2 presented?
3 MR. SIMS: Yes, we do. Your Honor. We would like to
4 ask the Court to draw an adverse inference with respect to the
5 defendant's harddrive in light of the refusal throughout the
6 entire matter to produce any e-mails or letters from it or to
7 comply with the Court's letters with respect to an
8 investigation.
9 THE COURT: I'm not going to hear any argument about
10 this now. I've heard enough discovery in this case enough to
11 last me a lifetime.
12 MR. ATLAS: One other deposition. I'm told the
13 deposition of Mr. Attaway was not addressed a few moments ago.
14 THE COURT: What about Mr. Attaway? Who wants it in?
15 MR. ATLAS: We want it in.
16 MR. HERNSTADT: It was designated and
17 counterdesignated, but it was inadvertently left out of the
18 binder, and Mr. Attaway is one of their --
19 THE COURT: I know who he is.
20 MR. HERNSTADT: Okay. And was a witness on their
21 witness list who didn't testify.
22 MR. ATLAS: We'll provide that to the Court in a
23 letter tomorrow.
24 MR. SIMS: We don't have any problem.
25 THE COURT: That will be XXY. So mark it please.
1150
1 You with me, folks? XXY, Attaway's deposition designations.
2 Any other evidence? Going once. Going twice. Closed. All
3 right.
4 Does anybody want any closing argument in this case?
5 MR. GARBUS: I think we were talking about submitting
6 briefs certainly. I think, perhaps, after the briefs are in,
7 you might want to do that. I don't know what your Honor's
8 schedule is. I don't feel any real need for it now. Your
9 Honor had posed questions to us at the very beginning, and it
10 may be that we will resolve those issues.
11 There were four questions. I don't have them in
12 front of me. I think I would like to make after the briefs
13 come in a closing argument, but that depends on your
14 scheduling.
15 THE COURT: Well, my own disposition really is that I
16 think I would rather hear the closing sooner rather than
17 later, because we're almost familiar with the record now, if
18 there's to be a closing argument.
19 MR. GARBUS: Your Honor, can I think on it and get
20 back to you as to, at least, the necessity?
21 THE COURT: Yes. And my thought was to do it later
22 this week. Now, as far as briefs are concerned, with the
23 exception of three points that are bothering me in particular,
24 I will, within limits -- assuming we can get the proper time
25 frame -- leave the question of putting briefs in up to you.
1151
1 We had mentioned two and possibly three of these
2 issues during the course of the trial. One is what, if
3 anything, I were to do about an injunction here if I conclude
4 that this horse is out of the barn already. Something tells
5 me there's ancient equitable maxim that I haven't been able to
6 find this week to the effect that courts will not issue
7 injunctions where to do so would be entirely futile. I think
8 we've talked about that.
9 Secondly, I'm sure we talked about Summers v. Tise
10 and its implications here. And thirdly is whether and to what
11 extent I properly may conclude from the evidence that's in the
12 record that decoded DVD movies actually are available either
13 over or through the internet. That's essentially an
14 evidentiary question.
15 Now, beyond addressing those three questions, does
16 anyone want to file a brief in this case?
17 MR. GARBUS: I think we would like to file a brief
18 with respect to a pulling together of the legal arguments. I
19 think that we have -- our last brief, I think, was a reply
20 brief I mentioned, June 14th, where we made speculations about
21 what we thought the evidence and the law would be. Since
22 then, we've taken discovery and gone through this trial. I'd
23 like to prepare a document that I think represents that.
24 I know your Honor doesn't want to delay it too much.
25 I don't know -- I think I'd like to have a chance to go
1152
1 through the facts and go through the briefs and go through the
2 law, but I'm sensitive to your Honor's scheduling.
3 THE COURT: Mr. Gold, what's your pleasure?
4 MR. GOLD: Well, your Honor, but for the three issues
5 your Honor has just described -- and when I think of the
6 briefs on both sides, I think there has been an awful lot
7 submitted to you and more than once on the remaining issues.
8 So if we touch on them, it will be touching on them
9 very briefly indeed, but these three issues, of course, we
10 would like to brief.
11 THE COURT: All right. Well, suit yourself. We'll
12 have a simultaneous exchange. This is July 25th. Can you get
13 them for me by August 4th?
14 MR. SIMS: Yes, sir.
15 MR. ATLAS: Would it be possible to get --
16 MR. GARBUS: I think some of us -- is August 15th
17 good for you?
18 THE COURT: Well, it isn't as good. It isn't as
19 good. If you want more time, I'll give it to you.
20 MR. GARBUS: Yeah. I think that our position,
21 frankly, is that we've just absorbed the discovery. We've
22 absorbed the material at trial, and we would like to put
23 together a document which we think is coherent and puts
24 everything together. Normally, I would ask for a good deal of
25 time to do that. I understand the Court's scheduling, but I
1153
1 do feel that we should put together -- there have been some
2 questions about whether we raised certain issues, whether we
3 didn't raise certain issues. I think be would like to have an
4 opportunity to put our case together coherently.
5 THE COURT: Mr. Gold, what were you about to say?
6 MR. GOLD: Well, on the August 4th simultaneous
7 exchange sounds wonderful to me, unless your Honor would make
8 it August 3rd. I believe that the shorter it is, the more
9 focused these briefs will be and the more helpful they'll be
10 to the Court, and the longer the time, the much longer the
11 briefs are likely to be.
12 THE COURT: We're going to cut the baby in half.
13 We're going to make it August 8th. And a 35-page limit. And
14 let me give you a little guidance.
15 I haven't really had a chance during the course of
16 the last week to go back over the opinion in January in light
17 of the evidence at trial. Obviously, there was no record
18 before me in January. There was nothing from the defense at
19 all, and there was very little from the plaintiffs compared to
20 what's there now.
21 But my tentative sense, from having listened this
22 week and last with a lot of care, is that probably nothing
23 much has changed with respect to the analysis of the DMCA
24 itself. I may be wrong in that, but that's my gut reaction
25 here.
1154
1 I think one thing probably has changed with respect
2 to the constitutional analysis, and that is that subject to
3 thinking about it some more, I really find what Professor
4 Touretzky had to say today extremely persuasive and
5 educational about computer code.
6 Now, of course, which way that cuts is another
7 matter, but I just don't think it's likely ultimately to prove
8 tenable to say that computer code of any kind has no
9 expressive content, source or object. Which then gets you to
10 the question of how then do you deal with it under the First
11 Amendment. I found myself wondering and I'm thinking out loud
12 here, because I really want both sides to understand where my
13 mind is going on this, because then they're going to focus
14 more closely on what concerns me.
15 I'm really in doubt as to whether saying that
16 computer code is constitutionally protected speech goes very
17 far toward answering the questions in this case.
18 In the past, the Supreme Court has dealt with
19 questions involving the regulation of expression essentially
20 by fitting the particular kind of expression into various
21 pigeon holes, fighting words, obscenity, conduct as contrasted
22 with speech, commercial speech, and they've developed over the
23 years various kinds of definitions that to one degree or
24 another separate those different categories.
25 I'm really not sure that paradigm fits this case. Or
1155
1 if it does, where exactly -- which is the right pigeon hole
2 for this case. I reread the draft card burning case over the
3 lunch hour, and the Supreme Court there said that although the
4 burning of the draft card was obviously intended as
5 expression, the government had the right to prohibit it, to
6 criminalize it because of the governmental interest in running
7 the draft. I remember what I thought about that in 1968. Not
8 that I'm telling anybody.
9 The speech conduct distinction they draw in that
10 case, I think, one fairly can say is one that is debatable,
11 and they put the expressive draft card burning purely into the
12 conduct box, so that it could be regulated even though it was
13 obviously expressive. There's some kind of analogy here. So
14 I share those views. They're very unformed. They're very
15 tentative. But I guess what I'm intending to communicate by
16 this is that rhetoric is not really likely to cut it very
17 much. I'm really very interested in the guts of this, and for
18 what it's worth, there you have it.
19 Okay. Anything else? I do think it appropriate to
20 thank all counsel because I know what a huge personal effort
21 getting ready has been. Nobody should think that I was ever
22 unmindful of that, and I appreciate that for everybody.
23 Okay, our business is concluded. I'll hear from you
24 on these other odds and ends of documents from you tomorrow.
25 Now, to whatever extent I don't have the exhibits, I need
1156
1 them.
2 MR. GOLD: Thank you, very much.
3 MR. ATLAS: Thank you, your Honor.
4 THE COURT: Thank you, folks.
5 o0o
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1157
1
2 INDEX OF EXAMINATION
3 Witness D X RD RX
4 CHRIS DI BONA............987 1026 1033
5 MICHAEL EINHORN.........1034 1048 1057
6 DAVID TOURETZKY.........1061 1110
7 PLAINTIFF EXHIBITS
8 Exhibit No. Received
9 1, 4, 28, 51-55, 64, 69, 72, 79, 126 and 129 1118
10 2.1 through 2.34 and 3.1 through 3.34 ......1119
11 77 and 93 ..................................1123
12 98 .........................................1128
13 DEFENDANT EXHIBITS
14 Exhibit No. Received
15 BDT ........................................1026
16 CCN, CCO, CCP, and CCQ ....................1080
17 BBE ........................................1092
18 CS .........................................1131
19 FH .........................................1131
20
21
22
23
24
25