Plaintiffs,
v. 00 Civ. 277 (LAK) SHAWN C. REIMERDES, et al,
Defendants. ------------------------------x
July 18, 2000
9:00 a.m. Before:
HON. LEWIS A. KAPLAN,
District Judge
APPEARANCES
THE COURT: Good morning, everyone.
MR. GOLD: Good morning.
THE COURT: Are we taking Mr. Stevenson out of turn?
MR. GARBUS: Yes, your Honor.
MR. HERNSTADT: Yes, your Honor. The defendants call Frank Stevenson.
DEPUTY COURT CLERK: State your name for the record.
THE WITNESS: My name a Frank Andrew Stevenson.
THE COURT: You may proceed, Mr. Hernstadt.
Q. Mr. Stevenson, where do you live?
A. I live in Oslow, Norway.
Q. What is your present employment there?
A. I do work as a programmer in the research department at FunCom.
THE COURT: For what?
THE WITNESS: The research department.
THE COURT: That was the part I understood.
THE WITNESS: FunCom, F-U-N-C-O-M.
Q. What kind of company is FunCom?
A. FunCom is a games producer. We are in fact the largest games producer in Norway and one of the largest games producers worldwide, the largest independent, I should say.
Q. What is your position there? What is your title?
A. My title there is head of R&D, research and development. I am in charge of directing efforts into research to determine which areas of research would be fruitful to devote to efforts, and also I do the research myself.
Q. Do you have any responsibilities with respect to security?
A. I frequently get involved when security questions are brought up. Our company will do online payments through our website, and in this respect I have been part of reviewing the security of the website.
Q. Could you tell the Court something about your background with computers.
A. I started programming at the age of 12. My father taught me how to write my own programs, and I have been programming ever since. I have programmed through learning a number of programming languages, started out with BASIC and I have gone to assembly line language and now for the main part I do programming C and C++.
Q. Okay. Can you tell me something about your background in cryptography?
A. Around 1992 I got involved in a cryptography related mailing list on the Internet and became immediately very interested in cryptography as a science.
Q. And what have you done to pursue that interest?
A. I have tried to read as many research papers as I can and also done studies on my own.
Q. Did one of those studies include a study of the CSS cipher?
A. Yes, as part of a program that Bruce Snyder has put on how to teach yourself cryptographic skills, he suggested that a student could look at various ciphers that are put out. New ciphers are put out, some are strong and some not so strong, and in an effort to hone my own cryptographic skills, I decided to look at the CSS encryption system.
Q. Who is Bruce Snyder?
A. Bruce Snyder is a very well respected author and lecturer in cryptography.
MR. HERNSTADT: Your Honor, just so you know, Mr. Snyder is going to be our expert witness on cryptography. We are presenting Mr. Stevenson as a fact witness about his personal involvement in various matters that are associated with this case.
THE COURT: Thank you.
Q. Could you please continue to tell us about your inspection of the CSS cipher.
A. When I first found the CSS cipher on the web page, it didn't take me long to determine that it had serious weaknesses. I also saw that the weaknesses that I found would be useful for the development of a Linux DVD player. At the time they did have a problem in that they did not have enough player keys so they could successfully decrypt all movies, and also my research was useful to that respect.
Q. How is that?
A. When I first joined the list, there was only a single player key that was publicly known. This key was not capable of decrypting the Matrix the movie, and so I looked at the algorithm and found ways of determining other ways.
Q. Was that difficult?
A. It took me three days, and I expect that a person more capable than I am would possibly be able to do it in a shorter amount of time.
Q. What was the result of your research? Did you develop attacks or?
A. I posted three messages directly to the Livid mailing list on three subsequent days, describing three different attacks on the CSS system.
MR. GARBUS: I thought the witnesses were excluded. Isn't this Miss King?
THE COURT: I certainly don't know. Voice.
MR. COOPER: That is Miss King, and she is the representative of one of the plaintiffs.
MR. HERNSTADT: Mr. Reporter, could you read back the last question.
Q. What would the result of the attacks be if applied.
A. The first attack would possibly enable somebody to decrypt a DVD with only the encrypted files available, not the keys that are stored in a separate place. The second attack made it possible to derive a player key or a set of player keys from a single known player key. And the third attack made it possible to decrypt a DVD movie without knowing any player keys at all.
Q. And how long in the second attack, how long would it take to find those keys?
THE COURT: Just before you go to that, I want to be sure I'm understanding this.
You tell me, sir, that the first attack would possibly enable one to decrypt a DVD with only the encrypted files, not the keys, and the third attack made it possible to decrypt the movie without knowing any keys. How is the first attack different from the third attack?
THE WITNESS: The keys are stored in a separate sector on the DVD drive. The first attack could possibly work if you did not have any information about the keys stored on the disk. The third attack works from the keys stored on the disk and determines which key the disk is encrypted with without knowing any player keys. That's the keys that are embedded in the licensed DVD player.
THE COURT: Are you talking about two different kinds of keys or only one kind of key?
THE WITNESS: There are two different kinds of keys.
THE COURT: What are they?
THE WITNESS: There are actually three different kinds of keys. One kind of key is the player key, which every licensed player is issued, I believe with a set of keys, which are used to decrypt the title key. And every DVD is encrypted with a title key, so when you have a player key and a DVD you can then find the title key, and the title key is then used to decrypt the individual sectors of the DVD which are encrypted with a key derived from the title key.
THE COURT: Which is the third kind.
THE WITNESS: The first attack determines the third kind of key.
THE COURT: Thank you. Go ahead, counsel.
MS. MILLER: First of all, we would like to interpose an objection to the witness' last answer in that he has attempted to describe the function of the CSS encryption system. Mr. Hernstadt has not offered him as an expert witness on either DeCSS or cryptography on any of these issues related to the areas he has just testified.
THE COURT: I understand your point, but I asked the question because he was describing three attacks that he posted to the Livid list and he spoke in terms that were confusing to me, and now I know what he meant. So for that purpose I need it.
Q. Mr. Stevenson, could you explain what cryptographers mean when they talk about an attack.
A. Well, usually a --
MS. MILLER: Objection, your Honor. Mr. Hernstadt has already said that this witness is not an expert in cryptography. They are not tendering him as an expert, as a cryptographic expert.
THE COURT: Sustained.
Q. Mr. Stevenson, could you tell us what you mean when you talk about an attack.
A. An attack is a weakness in a cipher.
THE COURT: Is an attack a weakness or is an attack a tactic to take advantage of a weakness to break the code?
THE WITNESS: An attack is when you find a weakness, you publish that as an attack on the cipher. That would then be considered a potential attack of the cipher.
THE COURT: So go back to a different era of cryptography.
Attack on the German codes came when the allies got the Enigma machine and began putting the codes through the Enigma machine. The weakness was whatever was inherent to the code and the fact that the allies had the decryption device, right?
THE WITNESS: I think in decrypting, the word "attack" there would be more precisely described as cryptoanalysis, where you have the cipher and you start analyzing it. When you find a weakness you publish that as an attack.
THE COURT: Okay. I'm understanding you to say essentially what I'm saying, and, that is, while the publication of a weakness is described as an attack in a sense that any information that would help someone to decrypt a code of any kind would be useful in cracking the code, attack also is appropriately used to describe the effort to crack the code, whatever kind of code it may be. Is that fair?
THE WITNESS: That can be so.
THE COURT: I'm sorry?
THE WITNESS: That could be so.
THE COURT: Go ahead.
MR. HERNSTADT: In terms of terms of art, I will have Mr. Snyder address it more completely.
Q. Mr. Stevenson, how did the cryptoanalysis that you published assist in the development of a Linux DVD player?
A. As I said, at the time I only knew of a single public player key, and I have reason to believe that as a result of my second attack a few days later a fuller list of player keys was posted to the Livid mailing list.
Q. Why would you help with the development of a Linux DVD player?
A. I am a Linux user myself, and it is in my interest that Livid become a fully capable operating system and not be inferior to a Windows operating system in any respect.
Q. How long have you been a Linux user?
A. I first used the Linux operating system something like five years ago. That was for a short period of time only. I have been continually using it on my own computer for two years.
Q. Why would DeCSS be a Windows program instead of a Linux program?
MS. MILLER: Objection. Vague.
THE COURT: Certainly sustained as to form.
Q. Do you know why DeCSS was released as a Windows program?
THE COURT: Sustained.
MS. MILLER: Objection.
THE COURT: Sustained.
MR. HERNSTADT: I will move on.
THE COURT: I'm not foreclosing the area, Mr. Hernstadt. You just haven't asked the proper question.
How can he testify about why someone else did something?
Q. What is your understanding of why DeCSS was released as a Windows program?
MS. MILLER: Objection.
THE COURT: Sustained. His state of mind is not at issue here.
Q. Is DeCSS a Windows program?
A. Yes.
Q. Can you explain why a Windows program would assist in the development of a Linux DVD player?
THE COURT: I can't hear the question.
Q. Can you explain how a Windows program would assist in the development of a Linux DVD player?
A. It is my understanding that at the time the DeCSS, the Windows program was released, the Linux operating system did not have the capabilities to read the UDF file system that is used on the DVD disks themselves, so for this reason if you want to play a DVD you would have to do the decryption under an operating system that did support the UDF file system, and Windows is one such file system.
Q. Was Linux or a Linux program capable of reading DVDs if it didn't support the UDF file system?
A. It shouldn't be.
MS. MILLER: Objection. No foundation.
THE COURT: Sustained.
Q. Did you do anything else with the cryptoanalysis?
A. I also posted some messages to some prominent cryptography mailing lists pointing to my work in the Livid mailing list, and I also did relate it to some of the plaintiffs' problem in reiterating or providing additional protection for DVDs released for early viewing on aircraft. They had sought to add additional protection to the DVDs that were to be played on aircraft, and I thought my research demonstrated that these proposed measures were inadequate.
Q. In what respect were the measures inadequate?
A. They could not achieve their objectives of protecting DVDs released from being decrypted.
Q. And how did you know that the plaintiffs were interested in this particular area?
A. While using search engines and searching for CSS I came across a website describing this effort.
Q. The effort on the part of the movie industry?
A. Yes, that's correct.
MS. MILLER: Objection. No foundation.
THE COURT: Well, I will take it just as I did things yesterday, to explain why he did whatever he did, not for the truth. Obviously he doesn't have personal knowledge regarding anything about the airplanes. He read something on the Internet and he did something.
Q. Are you familiar with any programs that are capable of decrypting DVDs?
A. I have downloaded DeCSS on my computer. I have run the program but not used it to decrypt a DVD. I have downloaded and used the DOD Speed Ripper on my computer, and I have had some of the other rippers on a computer but did not use them, but I do have an understanding of how the Windows operating system works, and I believe I understand the principle by which the other rippers operate.
Q. What other rippers are you talking about?
A. There is a ripper called Power Ripper which is capable of intercepting the frames as they are being displayed to the screen on the Windows computer, and another ripper called DVD Rip, which is able to intercept the compressed data stream as they are being fed to some of Microsoft's libraries that are responsible for decompressing them.
MS. MILLER: Your Honor, I would object to the witness's last answer and move to strike it. As I understand it, this witness is not being offered as an expert as to the operation of any of these other rippers that he has been able to download and test.
THE COURT: Mr. Hernstadt?
MR. HERNSTADT: The witness is being offered to describe what he has done and what he knows about the rippers. He is not being offered as an expert about them.
MS. MILLER: I don't think the witness has testified that he has used all the rippers, and I fail to see the relevance of his use of any of these additional rippers he has testified about.
MR. HERNSTADT: I don't think the witness has testified that he has used them to decrypt a DVD, but I think he has testified that he has looked at them or he has them on his computer and is familiar with how they work. I think he can testify to his personal knowledge.
THE COURT: Well, the motion is granted. I don't think that's accurate. He said he has downloaded DeCSS and run it, but if I understand his testimony correctly it was to the effect that he has not used it to decrypt a DVD. He then said that he had used DOD Speed Ripper but he didn't say for what or anything else about that, and that he had downloaded but not used some others but he understands the principle. And there is no foundation as to how he got that understanding, and I rather suspect that you are probably getting into expert testimony even if he has an appropriate foundation.
So, I have granted the motion. If you want to try to lay a better foundation, go ahead, but it's not there yet.
Q. Mr. Stevenson, you said that you downloaded Speed Ripper, is that correct?
A. That is correct.
Q. And you used it, is that correct?
A. I downloaded Speed Ripper because a friend of mine wanted to see if it was possible to make a video CD copy of a DVD movie that he had, and I went and asked another friend knowledgeable in which tools would be appropriate, and he did recommend that the DOD Speed Ripper was the best tool to use for the job, and for this reason I used the DOD Speed Ripper.
Q. And did it decrypt the DVD?
A. Yes, it did decrypt the DVD.
Q. Have you been affected personally by the institution of this litigation?
MS. MILLER: Objection. Vague.
THE COURT: Where are you going, Mr. Hernstadt?
Q. Have you been affected personally in terms of your studies in cryptology --
A. Well, I know for one thing --
Q. -- by this litigation?
A. I know for one thing that the material I have produced has been pulled off the 2600 website as a result of this litigation.
Q. Okay. Have you experienced any other effects?
A. No.
MR. HERNSTADT: Thank you very much, Mr. Stevenson.
MR. GARBUS: Excuse me.
MR. HERNSTADT: I'm sorry.
Q. Mr. Stevenson, did you do a declaration in this case?
A. I have done two declarations in this case.
MR. HERNSTADT: May I approach the witness, your Honor?
THE COURT: Yes. Are the exhibits you have handed the witness marked?
MR. HERNSTADT: Yes, they are. I'm sorry.
THE COURT: What are they? Just tell me and I will mark my copy.
MR. HERNSTADT: I have to look at the exhibits.
MR. ATLAS: I may be able to shed some light on this. In haste to get the documents prepared for trial, the copies we had made were not marked with the formal defendant exhibit stickers with a number on it, so what we have been doing is the original that is going to go in the record, we have the stickers here, we have been marking them. Every copy should have the exhibit number. It's one, two or three letters that appear at the bottom of the exhibit typically.
THE COURT: Well, one of the two that was just handed to me has an otherwise unexplained AE in the corner.
MR. ATLAS: That would be the defendants' exhibit number.
MR. HERNSTADT: That's a reply declaration?
THE COURT: It is. Now the other one doesn't have two letters.
MR. HERNSTADT: It has a "U."
THE COURT: It looks like a page number.
MR. ATLAS: I apologize. For the record, we will have them marked later.
THE COURT: Thank you.
Q. Are those the two declarations you did in this case?
A. Yes.
MR. HERNSTADT: Your Honor, rather than take Mr. Stevenson through the declarations, I would move that they be admitted into evidence. You can review them for yourself.
MS. MILLER: Your Honor, we are going to object to the introduction of Mr. Stevenson's declarations into evidence.
As you will see when you read the declarations, he has testified in a lot of areas which is clearly an area of expert testimony. He has not been qualified as an expert. He has not been tendered as an expert. There are also areas in the declaration where it's clear he is not testifying to any personal knowledge, and large areas in the declaration relate to the other rippers he has used, as he just testified today, and we would object to the introduction of that evidence on the grounds of relevance.
MR. HERNSTADT: Your Honor, I would suggest that it makes more sense for you to review it and take those paragraphs that you believe are applicable and use them rather than go through the declaration paragraph by paragraph.
THE COURT: But, look, I'm mindful also of what Mr. Garbus said in his opening, that this case isn't stopping here no matter what I decide, and I do have an obligation to create a record that is reasonably sensible.
Now, if I start receiving what here amounts to -- well, the pages aren't numbered -- but one long and one short declaration -- on the view that here I will somehow sort out what I think is reliable and what isn't, it's really rather different from taking one snippet of testimony, which I will do for both sides. What it does is to place upon me the burden of going through hundreds and possibly thousands of pages of material to in effect cross out everything I think is incompetent or hearsay so that whether or not I rely on it at this point will be absolutely clear to the Court of Appeals, so that either side which went through this exercise couldn't go to the Court of Appeals and say, well, there was evidence in the record below to the proposition X, which I may not have relied on but perhaps I didn't cross out, even though it's my view it's not properly admissible.
So, I think with respect to this I'm going to sustain the objection. If there is anything specific you want to adduce, let's do it.
I do appreciate the effort to save time, but I think that the objection at least in this case of this witness is perfectly appropriate. I mean he's got all kinds of statements in here as to which there is no basis for my assuming he has personal knowledge.
MR. HERNSTADT: Your Honor, I'm happy to take that approach.
Q. Mr. Stevenson, could you take a look at your declaration, Exhibit U in this case.
A. Yes.
Q. If you look at the first paragraph, do you have a personal knowledge as to the matters set forth in that paragraph?
A. Yes.
Q. Okay. Looking at the second paragraph, do you have personal knowledge as to the matters set forth in that paragraph?
MS. MILLER: Objection. If I could have Mr. Hernstadt identify what he is referring to.
THE COURT: There was some noise and I couldn't hear what you said when you turned away.
MS. MILLER: I would just like some clarification as to what paragraphs Mr. Hernstadt is referring to.
THE COURT: Ms. Miller, you keep turning your head to Mr. Hernstadt, and every time you do I can't hear what you are saying.
MS. MILLER: I am sorry. I would just like some clarification so I understand what paragraphs in the declaration Mr. Hernstadt is referring to.
THE COURT: It's Defendants' Exhibit U, which is the first one, and the paragraphs all have numbers, so if you use the numbers.
MS. MILLER: I didn't have a Defendants' Exhibit U.
THE COURT: You don't have it? Mr. Hernstadt, let's see if you can get it.
MS. MILLER: I have it, but I didn't have the actual U. So the first declaration is Exhibit U?
MR. HERNSTADT: That's correct. The reply declaration is Exhibit AE.
THE COURT: All right. Let's go.
Q. Mr. Stevenson, do you have personal knowledge as to the matters set forth in paragraph 2?
A. Yes.
Q. Do you have personal knowledge as to the matters set forth in paragraph 3?
A. Yes.
Q. And do you have personal knowledge as to the matters set forth in paragraph 4?
A. Yes.
THE COURT: Let's just pause on that. You say there are at least four programs in wide circulation that use CSS ciphers. What does "wide circulation" mean?
THE WITNESS: They are easy to locate on the Internet and they can be found at more than one place.
THE COURT: That's the definition of wide circulation.
Q. Have you found each of these on the Internet?
A. Yes.
Q. In more than one place?
A. Yes.
THE COURT: How do you know as you state in paragraph 4 that Livid members cooperatively wrote css-auth -- that's A-U-T-H -- and css-cat?
THE WITNESS: I subscribed to the mailing list and would get frequent e-mails when changes were made to these programs, so I know in fact they were working on them.
MS. MILLER: Objection. That's hearsay.
THE COURT: Yes, I think so, Mr. Hernstadt, isn't it?
MR. HERNSTADT: That's fine.
THE COURT: That sentence is not received.
Q. If you look at paragraph 7, do you have a personal knowledge that the anonymous source is a short section of a source code that describes all the CSS cipher modes of operation required to decrypt a DVD movie?
A. Yes.
Q. Do you have personal knowledge as to the other matters set forth in that paragraph?
A. Yes.
Q. In paragraph 8 you say that css-auth is a Linux BSD program written by the LiViD group. Let me ask you, do you have personal knowledge as to the first part of that sentence, that it is a Linux BSD program?
A. The LiViD group would be the place that maintained all the changes to this program, and as such it would be developed on the LiViD forum or in the LiViD group.
MS. MILLER: Objection. That's hearsay.
Q. Have you looked at the archives on the LiViD forum and examined the changes that were made to the css-auth program?
A. Yes.
Q. Are all those changes posted and available to be used by you on the LiViD forum?
A. Yes.
MS. MILLER: Objection, your Honor, hearsay.
MR. HERNSTADT: Your Honor, he's looked at these. He has looked at the DeCSS program and all the changes of the program in its various iterations, and the changes are available on the LiViD forum.
MS. MILLER: But there has been no foundation established on who created that program or that anything on that forum is accurate in fact.
MR. HERNSTADT: All right. I think I will ask another question.
THE COURT: This is Mr. Garbus's point from yesterday. He quite appropriately said yesterday the fact that it's on the Internet doesn't make it true. It's hearsay. Sauce for the goose is sauce for the gander.
MR. HERNSTADT: Let me ask it a different way, if you will, your Honor.
Q. Mr. Stevenson, have you found the source code for css-auth on the LiViD forum?
A. Yes, I have.
Q. Have you found different iterations of the source code, in other words different versions of the source code that have been changed and improved in various ways?
A. Yes.
MS. MILLER: Objection. Foundation?
THE COURT: Overruled.
Q. Now, do you have personal knowledge that when running css-auth it will perform the authorization to the DVD drive enabling the reading of a hidden block of data?
A. I performed those steps, yes.
Q. And the steps set forth in the third sentence of paragraph 8?
A. Which paragraph?
Q. That's the hidden block of data containing the list of title keys encrypted under various disk keys and a hatch?
A. Yes, I have performed that.
Q. Have you examined css-cat?
A. I have looked at the source.
Q. Where did you find the source for css-cat?
A. On the LiViD website.
Q. Do you have personal knowledge that it is capable of decrypting the bulk of movie data after authentication?
A. Yes.
Q. And that it is based in part on the anonymous source?
A. There are sections of code in the css-cat that are very similar to the anonymous source, but I have not compared or done an exact comparison.
MS. MILLER: Objection and move to strike that last answer. If the witness hasn't performed an exact comparison, it's hard to imagine that we could possibly say that they are similar.
THE COURT: Overruled. If you look at a green Mercedes and a blue Mercedes, you can say they are similar without doing an exact comparison.
Q. Do you have personal knowledge of the matters set forth in paragraph 11 of your declaration?
A. Which paragraph?
Q. 11. I'm sorry. I skipped ten. Do you have personal knowledge of the matters set forth in paragraph 10 of your declaration?
A. Yes.
Q. Do you have personal knowledge of the matters set forth in paragraph 11 of your declaration?
THE COURT: Look, you can do it this way, Mr. Hernstadt, but I'm just going to tell you up front, it isn't terribly persuasive, I'm speaking of paragraph 10, to have the witness simply say the incantation of personal knowledge without developing some basis for his making the statement that css-auth and css-cat are functionally equivalent to DeCSS.
MR. HERNSTADT: Thank you, your Honor.
Q. Mr. Stevenson, what is the basis for your statement in paragraph 10 that taken together css-auth --
A. DeCSS.exe program is capable of decrypting a DVD, and I believe that is the reason we are all present here today. I have seen a css-auth and css-cat perform the same function.
MS. MILLER: Once again we would object and move to strike, because I don't believe as you posed the question that this witness can still draw the conclusions, since he is not an expert, that these two programs together are functionally equivalent to DeCSS.exe.
THE COURT: Goes to the weight. Overruled.
Q. What does css-auth do?
A. Css-auth performs the secret handshake or authentication to the DVD drive, and the DVD drive will respond by making available a block of keys and a title key and will also allow the reading of the encrypted files.
Q. What does css-cat do?
A. Css-cat takes the encrypted title key and the key block and will find the keys that are needed to decrypt the bulk of the DVD and perform the decryption and copy the DVD to a disk in unencrypted form.
THE COURT: You say needed to decrypt the bulk of the DVD. What part of it doesn't enable you to find the keys that are necessary to do cryptographs, if that question was clear.
THE WITNESS: No.
THE COURT: You said css-cat takes the encrypted title key and the key block and will find the keys that are needed to decrypt the bulk of the DVD.
THE WITNESS: That will be the bulk files that are several gigabytes.
THE COURT: The VOB files?
THE WITNESS: Yes.
THE COURT: Are there other files that are necessary to decrypt the DVD?
THE WITNESS: No. The .IFO files are not encrypted.
THE COURT: What?
THE WITNESS: IFO files.
THE COURT: Okay.
Q. Mr. Stevenson, thank you very much. I have nothing further for this witness, your Honor.
THE COURT: Thank you. Ms. Miller?
Q. Good morning, Mr. Stevenson.
A. Good morning.
Q. You have heard of the DeCSS program, is that correct?
A. I have heard about the DeCSS.exe Windows program, that's correct.
Q. Is it correct that you did not personally create the DeCSS program?
A. I have no part in the creation of this program.
Q. Now it's also correct that you have never posted the DeCSS Windows executable utility to your website, is that correct?
A. That is correct.
Q. You have never personally examined or analyzed the DeCSS Windows executable utility, is that correct?
A. That is correct.
Q. And you have no personal knowledge of who actually created DeCSS, is that correct?
A. I know a fellow here present today who claims to have authored the program.
Q. You know a fellow here that's here today who claims to have authored the program?
A. Yes.
Q. But you gained that knowledge how?
A. By talking to this person.
Q. Who is the person that you are referring to, Mr. Stevenson?
A. I'm referring to Jon Johansen.
Q. And Jon Johansen is in the courtroom today?
A. Yes, he is.
MS. MILLER: The defendants on several occasions have indicated that Jon Johansen might be called as a witness in this trial. At this point he has not been indicated on the witness list, but to the extent that he is present and could possibly be called as a witness, we would like to initially exclude him from the courtroom, since all other witnesses have been excluded.
THE COURT: Mr. Hernstadt?
MR. HERNSTADT: Your Honor, we learned two weeks ago that Mr. Johansen was going to be in New York, and we mentioned at that point that we might want to use him as a witness. He is 17 years old, and he has been here for four days. We have had almost no chance to talk to him, so we hadn't intended to put him up as a witness. If your Honor would like to hear from him, since he is sort of the horse, we can --
MR. GARBUS: Your Honor, why don't we exclude him for now and we can talk about these other issues later.
THE COURT: Well, then, Mr. Johansen, you will have to leave the courtroom. You are welcome to sit in the jury room back under the clock.
All right, Ms. Miller, let's proceed, please.
Q. Now, you gave a deposition in this matter last night, is that correct, Mr. Stevenson?
A. Yes.
Q. Now, you indicated in your deposition that you had never heard of CSS until you read a report on Slashdot about the creation of DeCSS, is that correct?
A. That is not correct. It was about the creation of css-auth.
Q. Okay. So the original report that you read on Slashdot was about css-auth, correct?
A. Yes.
Q. And until that point in time you had never heard of CSS, is that correct?
A. Not that I'm aware of.
Q. So you had not engaged in the encryption activities related to CSS, is that correct?
A. Excuse me.
Q. Up until the point in time that you first read about css-auth on Slashdot, you had not been involved in the encryption research activity related to CSS, correct?
A. That is correct.
Q. Now, as far as you know, Mr. Stevenson, the CSS algorithm was not derived by a brute force attack, is that right?
MR. HERNSTADT: Objection. It's beyond the scope. I did not ask him any questions about how it was derived.
THE COURT: Well, I'm certainly going to sustain it as to form for starters, because the terms are not clear.
THE WITNESS: Not to me either.
MS. MILLER: I will move on.
Q. The cryptoanalysis of the CSS algorithm that you prepared was only prepared after your examination of what was posted on the LiViD group as the anonymous source, is that correct?
A. That is correct.
Q. And you testified that you contributed your cryptoanalysis to the LiViD mailing list, is that correct?
A. That is correct.
Q. Now you also have testified that you contributed some attacks, I believe was the word you used, to the LiViD mailing list concerning how one might derive encryption keys for purposes of decrypting a DVD, is that correct?
A. Those were my contributions to the LiViD mailing list.
Q. And those were your only contributions to the LiViD mailing list, is that correct?
A. I performed also some discussion one-to-one with other members of the list.
Q. But as far as actually contributing any of the code for the Linux DVD player that was under development, those were the only three?
A. I only submitted these three pieces of code to the list, yes.
Q. Thank you. You don't know, however, whether in fact any of the attacks that you contributed were used in any aspect of the Linux DVD player that was being developed on the Linux mailing list, is that correct?
A. As I mentioned, I believe that some player keys might have been determined as a result of the code that I posted, and that those in turn were useful for the development of a LiViD or Linux DVD player.
Q. But you testified in your deposition last night that you have no way of knowing to be sure whether in fact what you posted was used to derive those player keys, correct?
A. As I did not derive those player keys, of course I cannot testify to that.
Q. Now, you testified today that you believe that your cryptoanalysis was removed from the 2600 website as a result of this lawsuit, is that correct?
A. That is correct.
Q. Now, isn't it true that Mr. Corley asked your permission to link to your site which posted the cryptoanalysis that you performed on CSS?
A. He asked for permission to mirror the content of my website.
Q. Now, you have no knowledge of whether in fact Mr. Corley was involved in any reverse engineering activities related to the Linux DVD player, is that correct?
MR. HERNSTADT: Objection, your Honor.
THE COURT: Sustained. Beyond the scope.
MS. MILLER: No further questions.
THE COURT: Thank you. Mr. Hernstadt?
MR. HERNSTADT: I have nothing further. Thank you very much, Mr. Stevenson.
THE COURT: Mr. Stevenson, you may step down.
MR. GOLD: Your Honor, may we have a two-minute break?
THE COURT: Five minutes.
THE COURT: Mr. Gold?
MR GOLD: Your Honor, I would like to call Mr. Robert Schumann as our next witness.
MR. GARBUS: Your Honor, let me make a preliminary remark with respect to this witness as well as the next witness, and perhaps I should have made it with respect to the other witness. It's just a cautionary remark that the witnesses each have a certain limited area of expertise.
For example, Mr. Schumann testified originally as a security expert and over the course of time, the expertise of these witnesses is blown up so that they now cover a good deal of other areas. I just caution that, at this point, and I'll make the appropriate objection.
THE COURT: You make the appropriate objection. I would be a lot happier if none of the attorneys make little pieces of closing argument along the way in the sense of being helpful. I appreciate the helpfulness. I recognize also that many of them are intended for public audiences, and that's true of both sides, and we are going to try this case by the book.
You have an objection. You make the objection at the right time. That goes for everybody.
THE CLERK: State your name. Spell your last name slowly.
THE WITNESS: Robert W. Schumann S-C-H-U-M-A-N-N.
THE COURT: Mr. Gold, you may proceed.
Q. Good morning, Mr. Schumann.
A. Good morning.
Q. Mr. Schumann, by whom are you employed?
A. Cinea LLC.
Q. And what is your position with Cinea?
A. I'm president and CEO of Cinea.
Q. What is --
THE COURT: Spell Cinea?
THE WITNESS: C-I-N-E-A.
THE COURT: Thank you. Proceed.
I didn't know if it was a showy summer flower or --
MR GOLD: It will soon be a very large blossoming flower.
Q. What is the business of Cinea?
A. Cinea is a startup corporation whose business or area of business expertise is the creation and development of security systems, with a focus on digital content, in particular, video.
Q. Now, you said that Cinea designs and develops security systems, is that correct?
A. That's correct, yes.
Q. Who does it develop them for?
A. It develops them for people who have a need to protect their content. Typically, this is the movie studios or other people who have video content, such as television groups or corporations, anybody who has content that they would like to protect and insure the integrity of.
Q. Have you heard the term "high value digital content"?
A. Yeah, it's a term we use commonly in our description of the company. We -- our early market focus is what we call the high value digital video, which is the time when a movie is released. It goes through what's called windows of release.
So, first, it's created. Then it's released to the theater. Then it typically goes into hotels and airplanes and other what's called window venues. Then it's released to home video, and then it goes to pay per-view. And as it moves through those stages of distribution, it changes its value proposition for the studio.
So, when it's first released, they spend a tremendous amount of money to create this content, but have realized no revenue from the content. It has a tremendous amount of future revenue, but has no realized revenue and so, as it leaves the theater, it has received a portion of its future revenue, so now it has some realized revenue, it continues to sustain future revenue.
MR. GARBUS: I object on the grounds that this witness is not an expert, and move to strike.
THE COURT: Overruled.
Q. Is it true that the higher the content value, as you've just described of the digital material, the more potential customers are likely to spend on the security system?
A. Absolutely.
Q. What is a DVD?
A. DVD is a -- stands for "digital versatile disk" and it describes a family of standards and in common perception products, the consumer knows DVD as the video disk, commonly as the video disk, as described here in this hearing, but it really encompasses a set of standards, including the standards for the physical disks themselves and the readers and the structures of the disk commonly referred to as DVD-ROM, as well as video standards that describe how to store video and content on those disks.
Q. How much storage capacity can one usually expect to find on a DVD?
A. DVD support four or five different storage levels. Normally the minimum size is 4.7 gigabytes for -- and this is DVD-ROM. There are four gigabytes DVD-ROM, which is the compressed ROMs support a minimum of 4.7 gigabytes and are typically released as 4.7 gigabytes or what's called dual-layer or dual-sided where they have between nine and ten gigabytes of data, essentially two 4.7 layers.
Q. Is there a difference in the quality of the digital data stored on a DVD and, for example, audio analog data like that stored on a video cassette disk?
A. Absolutely. DVDs have a far higher degree of quality than VCR tapes or VHS tapes. Typically, the people view it as a four times better quality. It's hard to put a quantitative number like that on it, but it describes a much stronger -- a much higher resolution on the screen as well as much better color fidelity than is possible on videotape. Also DVDs have a much better audio system than VHS tape does.
Q. Is there now a particular need for digital content?
A. There's a tremendous market acceptance for digital content as evidenced by the rise of DVDs and the spill of DVDs; yes.
Q. How long have you been with Cinea?
A. I have been with Cinea since its founding in June of 1999.
Q. And what did you do before that?
A. I was working for Digital Video Express, commonly known as "Divex." I'll note for the Court that it's not the same Divex as been previously discussed in this room.
And at Divex, I was -- when I joined Divex, I was one of the chief architects of the overall DiVX system. And then I spent the last two years working on future business developments for Divex.
THE COURT: So, in the hope of producing a transcript here that is intelligible to the rest of the world, let's adopt this convention, Amy: When someone is speaking of DiVX in the sense we heard yesterday, that is, as the compression method, that gets rendered, as I understand, the capital DiVX.
"Divex" meaning the name of this gentleman's former company, let's render it as "Divex" with no capitals in the middle of the word.
Let's proceed.
Q. What was Divex's business?
A. Divex's business was essentially a better way to rent movies for consumers. It created products, both distributed videos as well as technology that went into players which allowed the retail sale of movies at a four dollars -- $4.49 and essentially what was sold was the physical media and what we'll call one free rental period.
So, a consumer was able to go into a store such as Circuit City or grocery store or their favorite video store and "buy the movie" and what they would do then is they could take that movie home and unlike a movie rented at Blockbuster's, your rental period or your two-day period started when you put the movie in the player, and not when you left the store; O.K.
And so, I could buy it on a Monday, put it in the player on a Friday night when I like to watch my movies, and then would have all weekend to watch it, just as I did with a rental movie that I got at Blockbuster and then at the end of the weekend, I wouldn't have to take it back. It was basically a convenience product for the consumer.
Q. Was the technology of that particular DiVX product that you just described similar to present DVD technology?
A. It was in the base technologies of how the video stored, how the video was played back, and how the structure and quality of the video, in fact, we used the DVD specifications for those portions where we differed was that we had a different security system and a slightly different menuing system.
Q. What was your title when you were at Divex?
A. My title when Divex was shut down was director of strategic technology.
Q. And what were your responsibilities as director of strategic technology at Divex?
A. In that role, I was responsible for working with other content areas, essentially to promulgate the DiVX technology into both other applications as well as into other platforms such as digital cinema and other high-value areas.
Q. Was there a digital content security aspect to DiVX technology?
A. Absolutely. The DiVX system was dependent on a robust security subsystem.
Q. Prior to the time that you became director of strategic technology at Divex, did you hold another job at Divex?
A. Yes, I was chief architect at Divex.
Q. And what did you do as chief architect at Divex?
A. I was -- I had responsibilities for the overall system design, both of players as well as the back end, and also was one of the key -- key members of the team that developed the DiVX security architecture.
Q. I'd like to show you a document that's been marked as Exhibit 4 for identification, Defendant's Exhibit 4.
THE COURT: Plaintiff's or defendant's?
MR GOLD: Plaintiff's Exhibit 4.
THE COURT: Your roots are showing, Mr. Gold.
MR GOLD: Yes.
Q. Mr. Schumann, what is Exhibit 4?
A. It's a copy of my resume.
Q. And is all of the information on that document accurate?
A. Yes, it is.
MR. GOLD: I'd like to introduce that document as Plaintiff's Exhibit No. -- what, in evidence? 4. Plaintiff's Exhibit 4 in evidence, your Honor.
MR. GARBUS: I have no objection.
THE COURT: It's received.
THE COURT: I note in looking at it that the spelling of the name of the witness' former company is DIVX, and notwithstanding that, we are going with the D-i-v-e-x convention to differentiate it from the other technology.
O.K., let's go.
Q. Did there come a time when you were retained by the Proskauer law firm to assist plaintiffs in this case?
A. Yes, sir, I did.
Q. And what were you asked to do, sir?
A. I was asked to provide my expertise and to apply my knowledge of digital systems and security systems and DVDs and my background to this case.
Q. Were you asked to do anything in connection with CSS or DeCSS?
A. Absolutely. I had performed an analysis for the MPAA and I was asked in the discussion with the folks at Proskauer to help them understand and provide a, I guess what's called an affidavit relative to my understanding of CSS and how it worked and also DeCSS.
Q. Did you have a written retainer agreement?
A. I did not.
Q. What were the terms of your retainer?
A. The terms of the retainer was that I would be compensated for my time on an hourly basis -- or I should clarify that -- that Cinea would be compensated for my time on an hourly basis.
Q. And what is the rate charged by Cinea for your time?
A. $325 per hour.
Q. Mr. Schumann, what is DeCSS?
A. DeCSS is a Windows application which essentially removes the CSS protection mechanisms from content or video -- audio-video content stored on DVDs.
Q. Does DeCSS run under the Microsoft Windows operating system?
A. Absolutely. In fact, that's the only place that the DeCSS executable works.
Q. And what does DeCSS allow its user to do?
A. DeCSS allows its users to take a DVD disk that's protected with the CSS protection system, place it into the DVD drive of their Windows computer, then select essentially the files from that -- from that disk and ask them to be written to their hard drive or connected network machine and write -- and write the resultant file -- the resultant of what's called "plain text" in the security filed, but unencrypted data back to the hard drive.
It essentially performs one and only function and that is to remove the CSS protection and allow the copying of the unencrypted data.
Q. So, at the end of the process, there is an unencrypted movie tape on the user's hard drive?
A. Absolutely. The audio-visual content is stored on the user's hard drive in unencrypted form.
Q. And what can the user do with that unencrypted motion picture?
A. They can do anything they could do with any other file on their hard drive.
MR. GARBUS: I'll object to it unless he's done it.
THE COURT: You need to lay a better foundation here, Counsel.
Q. Did you use DeCSS?
A. Yes, I have.
Q. Did you decrypt any movies with DeCSS?
A. Yes, I have.
Q. How many?
A. I have used DeCSS about four or five times now.
Q. And did you observe what it did?
A. Yes, I did.
Q. Can you tell us what DeCSS does to an encrypted DVD?
A. Absolutely.
THE COURT: I take it you have just told us, is that right?
THE WITNESS: I can provide more detail, if the Court would --
Q. Would you please, sir?
A. Absolutely. DeCSS performs its function in four -- essentially four discrete steps. In order to extract the content and to unlock the disk, CSS provides two mechanisms to prevent access and to prevent the copying of the content.
First, it provides a locking mechanism whereby a DVD drive will not release the CSS-protected content on the disk to a computer until the CSS drive has completed a handshake with the computer and is satisfied that the computer is -- to use the lay term -- "safe" to release the content to; O.K.
So, that's the unlocking step. So, when DeCSS is first brought up, it unlocks the DVD drive, so it can get access to the content. It then provides a screen to the user which looks just like any other Windows screen where the user is able to select the files off of the DVD disk that they would like to extract and copy. That's step 2.
Step 3, the user then selects the target directory into which they would like to write the plain text or decrypted files. That directory can be any directory on their Windows machine. So, that could be the hard drive, could be a directory on the hard drive, it could be a directory on connected network machines. It could be a directory on an attached tape drive or any -- essentially anywhere in the Windows someone sees as a directory.
So, they select the files they want to copy, then they select where they want the output written to, and then finally they click the button that tells the program to start and then the program goes to the process of running the CSS decryption algorithms against that content and writes the resultant plain text to the output files.
Q. So, at the end of this process, is it true that you have descrambled the previously-scrambled DVD?
A. Absolutely.
Q. Have you ever visited the 2600.com website?
A. Yes, I have.
Q. How many times?
A. Probably several dozen now.
Q. Have you ever down-loaded software from the 2600.com website?
A. Yes, I have.
Q. Did you download DeCSS from that site?
A. Yes, absolutely, on multiple occasions.
Q. In what form was the DeCSS software that you downloaded from the 2600.com site?
A. The DeCSS software that I downloaded was in the form of a zip file, but that zip file contained the DeCSS executable, again, the Windows application that I formerly described.
Q. When you downloaded, was in it form of a Microsoft Windows executable utility?
A. Yes, it was. Again, it was contained within a zip file which is -- which is a mechanism for compressing files for faster download and faster transmission, but after it was extracted from the zip file, that zip file contained the Windows executable. So, effectively, it was a Windows executable that I downloaded.
Q. How do you know it was a Windows executable system that runs under the Microsoft operating system?
A. Executables are tightly coupled to the operating system they run on, and so, if it was not a Windows-executable, Windows would have refused to run the program.
Q. Do you know anything about whether DeCSS was created to run on a Linux system?
A. I can say that, to my knowledge, there was absolutely no -- it would not appear at all that it was and that's from several -- several aspects, No. 1, the thing is a Windows operating system. It's written and runs on the Windows operating system; O.K.
And somebody who is developing a program for the Linux operating system would not create a Windows executable. They would, in fact, create a Linux executable because the process and the interfaces are considerably different between those two.
In addition, in my work for the MPAA --
THE COURT: I think there's an objection; is there?
MR. GARBUS: Yes, there is, your Honor.
THE COURT: And what is it?
MR. GARBUS: As for the MPA, it would be hearsay. With respect to the other material, it's conclusory.
THE COURT: Your voice is so low.
MR. GARBUS: There is no foundation for the conclusions that he's drawn and with respect to the other material, I presume it all to be hearsay.
THE COURT: Let's back up and I will strike this answer. And let's come at it and lay a proper foundation.
Q. You've testified that DeCSS runs under the Microsoft operating system, is that correct?
A. That's correct.
Q. Did you observe any facts which led you to that conclusion?
THE COURT: We did that part.
Do you have an opinion of whether this DeCSS was created to run on Linux machines? That's the question; yes or no? Do you have an opinion?
THE WITNESS: Yes, absolutely.
THE COURT: What is the opinion?
THE WITNESS: The opinion is that DeCSS was created to run on the Windows operating system.
THE COURT: And what's the basis for the opinion?
THE WITNESS: The basis for the opinion is that it was released in a Windows executable format. I personally, in my looking through the web and looking at all of the available -- what's available for download that's referred to as DeCSS have never seen anything other than a Windows executable; O.K.
MR. GARBUS: I object to it.
THE COURT: I'd like to hear the rest of the answer, then I will hear your objection.
THE WITNESS: And, lastly, based on my considerable expertise and history in creating software, you do not accidentally create an executable that runs on an operating system. You do it very deliberately and very particularly.
THE COURT: I don't understand the last thing you said.
THE WITNESS: If I am asked to create a piece of software, O.K., one of the first questions I need to ask the user or the person who has asked me to create that software is: Where do you want this software to run? Do you want it to run on a McIntosh? Do you want it to run on Windows? Do you want it to run on Linux?
And the software and the instructions and the source code I have to write are different between those applications; O.K. And thus, I would not accidentally create a Windows application while I was creating a Linux application.
THE COURT: All right. Mr. Garbus, I will hear you now on that.
MR. GARBUS: You'll hear me now?
To the extent that this is based -- as I understand the testimony, basically he was asked to do a study and a survey of the Linux site and he then prepared a report with respect to that Linux site and that --
THE COURT: That's not what he said at all.
MR. GOLD: He's referring to testimony that was in his deposition which I haven't asked questions about.
THE COURT: That's not what I heard here this morning.
MR. GARBUS: I'm sorry. I thought he was referring to material that he had downloaded.
THE COURT: From your client's website.
MR. GARBUS: Yes, and that was part of the conclusion, the basis for his conclusion. That's what I thought he said.
MR GOLD: We haven't gotten up to that part yet.
THE COURT: I don't think he said that, Mr. Garbus. What I understand here is essentially this: And you may as well know what I understand so you can all address it, it is his opinion that DeCSS was written for Windows, not for Linux and he bases that on the following facts:
First, that it runs under Windows.
Secondly, that he has never seen any reference anywhere to a version of DeCSS that runs under any other operating system.
And thirdly, he spoke several sentences about the extremely tight linkage between operating systems and applications programs, which he then extrapolated upon to say that you wouldn't accidentally create a program that runs on Windows if you were really designing it for a different operating system.
Now, that's what I understood him to say.
MR. GARBUS: Thank you.
THE COURT: O.K. Now, is there a problem with that, Mr. Garbus?
MR. GARBUS: No -- excuse me. I think we can deal with it in cross, rather.
THE COURT: O.K., fine. Mr. Gold?
Q. Was there anything else that you observed that caused you to reach the conclusion that DeCSS runs under the Microsoft operating system?
A. Yes. In my reviews of the Linux logs, this was the study I performed for the MPAA. There was several back and forth, I guess, operations or discussions as the DeCSS program was released into the Linux development environment and it is my opinion based on my review of those logs that DeCSS was provided from outside of the Linux development environment and thus, and some of the exchanges described in those logs described the source of that not even saying he likes -- implicates that he doesn't particularly like Linux and Linux is not the operating system of choice.
MR. GARBUS: To the extent that this answer is based on hearsay, I move to strike it.
THE COURT: This is offered as further support for his opinion under Rule 703. And to that limited extent it's admissible, for whatever it's worth. It's not admissible for the truth of the underlying proposition. It's admissible to assist me in evaluating the man's level of expertise and whether he has logically reached the conclusions that he has just offered.
So, on that limited basis, it's received.
Q. Mr. Schumann, at this point, I would like to show you certain pages from what has already been premarked as Plaintiff's Exhibit 9 in this case?
MR. GARBUS: Your Honor, these pages, as I understand, are two or three or four pages of the documents that I referred to yesterday which are part of the log of about two or three feet high from which he extracted these pages. I would ask that the entire log go in, that this is just a small part of it.
THE COURT: Well, you can do whatever you like on cross or at least you can try.
MR. GOLD: The entire log has been submitted as a trial exhibit here, all two to three feet of it.
THE COURT: Well, look --
MR. GOLD: And they have not been moved in yet?
THE COURT: Yes, I understand that, the latter.
MR GOLD: We are about to do it.
THE COURT: It is a Federal case, but let's colloquially not make a Federal case out of this. Whatever is going to come in, in all likelihood, your point is, Mr. Gold, that you want to talk about these three pages.
MR GOLD: It is, sir.
THE COURT: Nobody has to strain any muscles handling the other three feet of it or however much it is for this purpose. Go ahead.
MR GOLD: Thank you, your Honor.
THE COURT: Let's call this 9A. We are going to mark this 9A so we can differentiate it from the mountain.
Q. Mr. Schumann, have you ever seen those pages before?
A. Yes, I have.
Q. And how did you get them before today?
A. These are extractions from the list of the -- or the stack of the LiViD and I think they are Linux DVD. I think it's called development logs that were supplied to me by the MPAA printouts of those development groups.
Q. Turning to the first page of Exhibit 9A, the first page is entitled DeCSS 1.1B has been released. Do you see that?
A. Yes, I do.
Q. What does that mean?
A. This is a posting by Jon Johansen and what he describes here is that he has released a DeCSS source code provides -- not source code, excuse me -- the DeCSS executable provides the location to go -- to go click to get that executable and also you'll note in the middle two sentences that he specifically says it works on Win '98 and Win 2K has not been tested on Win NT, not that there is no reference to Linux and any other operating system other than the Windows operating systems in this release of the original.
MR. GARBUS: Your Honor, I presume there's a hearsay objection.
THE COURT: Again, it's exactly the same point I made before. It's not for the truth. It is here to explain the opinion he gave.
Q. Now, turning to the second page of Defendant's Exhibit -- Plaintiff's Exhibit -- after 37 years, it's hard -- of Plaintiff's Exhibit 9A.
Does it contain the message that you referred to earlier from Mr. Johansen?
A. Yes, it does. And again, this is a -- what you see here is you're kind of, as you look at this, you're kind of stepping into the middle of a discussion and so you'll see that as you read through this text that there's reference to earlier things that have been said, some of them apparently privately, but this message was written by one of the members of the -- of actually this message was written by Jon Johansen, again, in reply to one of the members of the DVD group who apparently John Johansen has told this member that he doesn't like Linux.
He's not quite sure why he released it to that environment. He really prefers Free BSD, which is another open source unique environment and there appears to have been an angry exchange between these two about the merits of their respective operating systems.
And I guess to the point of why does this lead me to, I guess, add or view this as another example that this was not created for Linux, people who are -- who develop things for Linux do not usually go around and then bad mouth the operating system that they're purportedly helping to create. It's not standard operation of the people on that group.
Q. Now, earlier, you testified that you downloaded DeCSS from 2600.com as an executable utility?
A. That's correct.
Q. And what does that mean? What is an executable utility?
A. An executable utility is the subject to -- it's such a program in its finished form. It's ready to be operated by an end user with no further steps.
So, when you get Microsoft word from Microsoft, you are, in fact, getting the executable. You're getting help documentation and lots of other stuff, but you are getting the executable, which means that it is a program that is intended for reading and execution by the computer. So, it's essentially in the computer's language, as opposed to the writer's language or in human readable form.
Q. And, therefore, the average computer user can use it easily, is that true?
A. Absolutely. They just click on it the same way they would click on Microsoft word or any other application on their computer.
Q. Now, you mentioned the word or the word source code, what is that?
A. Source code is the -- that's the original form of a computer program. It's the form in which the computer program is written and it is in a form that can be edited and understood and modified over time. So, and it's typically written in a computer language, typically program language such as CC or 'C.'
Q. Now, getting back to DeCSS, can you tell us exactly what its function is?
A. I think as I described a little bit earlier, its function is to read the encrypted content off of a DVD, allow the user to select subsections of that content, if he so desires, select where they want to write the output and then direct the program to perform the actual decryption and copying of that content to the file or to the hard drive.
Q. With respect to the audio-visual content stored on the DVD, what is the end product of that process?
A. The end product of that process is an exact copy of the audio-visual content that was on the DVD with the only difference being that the CSS protection system has been removed from that content.
Q. And based on your experience and observations using DeCSS, does it perform any other functions other than to decrypt and copy the CSS-protected contents of a DVD?
A. No.
Q. Now, if a user was to use DeCSS to decrypt a DVD, and then DiVX'd the movie so that it was stored on his hard drive in DiVX form, what can he do with that decrypted DVD that's been DiVX'd?
A. He could do the same things he could with a nonDiVX'd decrypted version, which is he could provide that -- he could make copies of that content to transportable media. DiVX would allow -- this is the DiVX referred to yesterday; I'm sorry -- would allow the writing potentially onto CD-ROM drivers because it could, in fact, compress the content to a smaller size.
It would allow him to again transfer the files, provide them to people on the Internet, make them available on a website, e-mail them to friends potentially, put them on tapes, put them on transportable hard drivers, essentially anything you could do with a digital file provided that the place you're sending it to has the appropriate storage capacity, could be done with those files.
Q. If the decrypted DiVX'd DVDs were offered on the Internet for downloading by anyone, would any of the people who downloaded have to DiVX it again?
A. No, absolutely not.
Q. So, if approximately 100,000 people got that decrypted DiVX'd DVD, got it transmitted to their computer, not one of them would have to DiVX it again?
A. No. I mean, that's the nature of these compression systems is that you don't need to recompress it. It's already compressed, and then all you need is the decompression mechanism when you want to play it back.
So, you don't need to go through the process and, in fact, a design -- in many cases, it's a design constraint of these compression systems that they are allowed to spend a lot of time on the compression side in the direction of making the depression or the viewing of the content to be very quick and effective.
You'll often see these compression systems have very long compression times, but that's because they're intended to be run only once and it's irrelevant in the distribution of the content.
Q. And how long -- what is the computer lines found in most universities today?
MR. GARBUS: Objection.
Q. Can you answer that?
MR. GARBUS: I'll object to it.
THE COURT: Sustained; lack of foundation.
Q. Do you know anything about lines used by any colleges or universities and made available to their students?
A. Are you asking about networking connections and my understanding of networking?
Q. Yes.
A. Yes, I have a significant understanding of networking and how modern computer networks work.
Q. Based on that knowledge, how long would it take a college student having access to the university lines to have a movie transferred and downloaded?
MR. GARBUS: I object.
THE COURT: Sustained; no foundation.
Q. Going back to that DiVX'd decrypted DiVX'd DVD, could the owner of it, having it on his hard drive, join a file-sharing program on the Internet and offer that movie to anyone in that file-sharing program?
A. Absolutely.
Q. Are you familiar with the term "hyperlink"?
A. Yes, I am.
Q. How is it used in connection with the Internet?
A. A hyperlink is the kind of a core mechanism, if you will, of what's -- of the worldwide web and the interfaces that users have there. It's the mechanism by which a user is able to -- to, I guess, link or to jump to other relevant pages.
So, when you're looking at a worldwide web page, when the text says, you know, go here for this or there's a highlighted text and you click on it and you go to another page, that is typically a hyperlink or it's commonly referred to as "a link."
And what it does is it then points you and directs your browser. It's essentially a software instruction, your browser to go to another location to retrieve a new page.
Q. Does the word "linking" and the word "hyperlinking" describe the same thing?
A. Yeah, linking is the more typically-used shorthand and it refers to what in the literature is known as "hyperlinking."
Q. Are hyperlinks useful to Internet users?
A. Absolutely.
Q. And how?
A. They are the basic mechanism upon which the worldwide web is built. It's the -- it's the critical, I guess, feature that you will -- that allows one user to go from one page to another in an easy and seemless fashion.
Q. How do people use hyperlinks on the Internet?
A. They use them in many ways. They use them to link --
MR. GARBUS: I'll object.
I assume Mr. Gold can lay a proper foundation. I presume this witness has used it, but I think that should be done first.
THE COURT: Well, we can do that, but this is a matter really almost for judicial notice. I mean, if you are serious about that, Mr. Garbus, we will do it, but it's a waste of time; isn't it?
MR. GARBUS: I'll withdraw it.
THE COURT: O.K., go ahead.
Q. You were describing how people use hyperlinks.
A. Yeah. They are used in several ways. They are used both to link -- when you're creating a site inside of your domain, so, if I was creating -- when we are creating our site for Cinea, we will have a plain page and then we will have subsidiary pages below that.
So, we will, on our plain page, have links that link to more detailed information such as, you know, contact information, how do you contact Cinea, and so we'll have a link on that main page to the subsidiary pages within our site that provides that information.
And then we'll also obviously have links on that site back up to our main page. So, you link internally and then you also link externally to your site. So, if you have information that you believe is of interest or that you want to make available to other people from your site, you can create those links and point them elsewhere in the Internet.
Q. When you visited the 2600.com website in connection with your work on DeCSS, did you view any hyperlinks on the site that appeared to be related to DeCSS?
A. Yeah, absolutely.
Q. When was your last visit?
A. My last visit was I believe last week to the site.
Q. And how many hyperlinks related to DeCSS did you note?
A. There were -- I didn't count them, but there were hundreds, I'm sure.
Q. Were you asked to do anything with respect to the hyperlinks on the 2600.com website?
A. Yes, I was. I was asked to follow -- to pick a set of those links and to, in fact, download -- see if I could download DeCSS from those -- from those sites and through those hyperlinks, I guess.
Q. When was the first time that you conducted such an examination?
A. I conducted such the -- the hyperlink examination in, I guess it would have been January or February of this year for the first time.
Q. And what was the last time?
A. The last time would have been last week.
Q. Let me show you what's been marked as Exhibit 97 for identification. First, sir, can you tell me if you know what Exhibit 97 is?
A. Yes. This is a record or a trail, if you will, that I created of my last pass through 2600.
Q. Directing your attention to the top of page 1 of the document and the large "Stop the MPAA" banner. Do you see the words "mirrors" under that?
A. Yes, I do.
Q. What is that?
A. That is the link, and this is one of these internal links, and this link then takes you -- I believe the following page shows the beginning of the page it's linked to and that page then contains a list of mirror sites.
And "mirrors" are a commonly used term in the web to refer to sites that have copies of something that you are trying to provide to the public.
THE COURT: Can't we shortcut this? I'm assuming that there is no issue of fact as to the proposition that the defendant's website has links to sites that are mirrors DeCSS and from which executable copies of DeCSS may be downloaded.
Is there any dispute about that, Mr. Garbus?
MR. GARBUS: I think executable and source, there are certain links.
THE COURT: I'm sorry?
MR. GARBUS: With respect to source code and executable code, yes, I understand there are links to those sites.
THE COURT: All right. So stipulated, Mr. Gold?
MR GOLD: Yes.
THE COURT: Let's move along.
Q. Did you click on any of the hyperlinks when you visited the site?
A. Yes, I did.
Q. Which ones?
A. I clicked on the, I think four -- four of the sub-sites. I would have to look at the exact to remember the names, if you want me to.
Q. Did all the hyperlinks work?
A. Yes, all the ones I clicked on, I think they all did. There may be one or two that did not.
Q. Turn to page 4 of Exhibit 97. Were you able to download DeCSS?
A. From that site, yeah, absolutely. And this would have been the site -- I can't see the site name here. The copy is very bad.
Q. Did you make a download?
A. Yes, absolutely, I did.
Q. And --
MR. GARBUS: Your Honor --
Q. Is the print on it of the download in this exhibit?
A. Yes, it is. The following page shows the download taking place.
MR. GARBUS: I think we can save time. I think that these pages -- I would stipulate that these are pages that he downloaded from. He has some comments on the pages that are typed, I presume that that's not necessary.
Subject to the other objections, I would have no objection to these documents going in.
THE COURT: Subject to what other objections?
MR. GARBUS: Well, it might be hearsay. It might be.
THE COURT: I appreciate the offer, but I don't know what I'm getting.
MR. GARBUS: I guess what I don't know what I'm getting is I don't know when if a site has CSS source or object code, some of the sites have inaccurate source and object codes. So, I can't tell you whether this is accurate or inaccurate, but I do -- willing to stipulate that the sites refer to the fact that they have a source and executable code.
THE COURT: All right. So, let me see if I can restate this and maybe we can get a stipulation and we will shorten this part of the examination.
I take it it is stipulated as follows: First, that Plaintiff's Exhibit 97 is a series of screen shots made by the witness on his last visit to 2600.com and in certain instances which are indicated by the URL lines on a particular screen shots and visits to sites reached through links that he found on 2600.com.
Are we O.K. so far, Mr. Garbus?
MR. GARBUS: Yes, we've agreed that the commentary on the pieces of paper are stricken and there's no stipulation that the sites reached, whatever the screen pages said, in fact, DeCSS source or executable code.
MR GOLD: What are the notes that you want stricken?
MR. GARBUS: In other words, on each page, for example, it says starting at the -- he has the direction of how he got in.
MR GOLD: Well, I can ask the witness what those words on each page mean and he'll --
THE COURT: Let me just finish.
MR. GOLD: Yes, sir.
THE COURT: I said (1) because that was only the beginning.
Now, Mr. Garbus, are you prepared to stipulate to what I read off just a moment ago, and I'll reread it?
First, that Plaintiff's Exhibit 97 is, putting aside the little parenthetical typed comments at the top of the page, a series of screen shots made by the witness on his last visit to 2600.com and in certain instances which are indicated by the URL lines on particular screen shots of visits to sites reached through links and that he found on 2600.com.
So far so good?
MR. GARBUS: So far so good.
THE COURT: Mr. Gold, so far so good?
MR GOLD: Yes, your Honor.
THE COURT: That much is stipulated.
Second, can we also have a stipulation, Mr. Garbus, that if asked, the witness would testify that the little typewritten commentary to which you referred is prepared by him and reflects his description of what's on the pages that have the typewritten commentary?
THE COURT: All right. So stipulated, Mr. Gold?
MR. GOLD: Yes, your Honor.
THE COURT: Is there anything else you wanted out of this line of questioning, Mr. Gold?
MR. GOLD: No, I was going to go on to whether he download DeCSS.
THE COURT: Fine. Is there any objection to my receiving Plaintiffs' Exhibit 97?
MR. GARBUS: No, your Honor.
THE COURT: 97 is received. We have the stipulation. I hope we just saved a half hour. Let's take a 15 minute break.
THE COURT: While we are waiting for the absentees, I just thought I would mention to you that we have the pleasure of the company of Judge Kenji Shinoda from the District Court of Tokyo, Japan who is here in the United States and he has decided to observe this trial, and he is most welcome.
MR. HERNSTADT: Your Honor, we request one clarification on Plaintiffs' Exhibit 97. It's 23 pages long, and in terms of I think to clarify the stipulation, pages 1 through 13 are screen shots of Mr. Schumann visiting four sites that he found on the 2600 mirror list and used a hyperlink to move from the 2600 site to the site that appears in the screen shot.
Then pages 14 to 23 are screen shots of what Mr. Schumann did on his computer afterwards that shows him showing the four DeCSS programs that he downloaded on his hard drive, and then it shows him doing some kind of a comparison program that was on his hard drive, and then the results of them, and then it shows him using the DeCSS program, one of the DeCSS programs to decrypt a couple of files from the movie You Got Mail. I think we are prepared to stipulate that's what the screen shots are and that there is commentary of his on the top to that effect.
THE COURT: I think that's right. Mr. Gold?
MR. GOLD: Yes, it is right, but there are some other things I want to go into about those tests.
THE COURT: That's fine, but the stipulation is modified to the extent indicated. I think you misspoke in one respect. That is, you said pages 1 through 13 were visits to four other sites. Some of them are, but some of them are the 2600.com pages, right?
MR. HERNSTADT: That's right. It shows him going to 2600, finding, using the hyperlink to visit another site and then going back to 2600 to find a link, using that link to visit a different site.
THE COURT: Right.
MR. HERNSTADT: The plaintiffs have agreed to give us or to try and find clearer copies, because I can't read on the photocopy the results of the comparison test.
MR. GOLD: We will try to get clearer ones, but you can always walk over a couple of blocks and look at them.
Q. Mr. Schumann, did you download the executable utility DeCSS from any of the sites that 2600 linked you to?
A. Yes, I did.
Q. How many?
A. In this particular example, four sites.
Q. Did you perform an examination of any of the four?
A. Yes, I did. I compared the four to insure that they were in fact all truly the DeCSS program, that they were identical and one in the same, to insure that what purported to be DeCSS was in fact DeCSS.
Q. Did you try to do anything with the effect with your -- let me withdraw that.
Did you do anything with any of the executable utilities that you downloaded other than what you have just described?
A. Yeah, after I had compared the four, and knowing now that they were identical, I could then use only one of them to continue the testing of running DeCSS, to insure that it was in fact then able to decrypt the contents.
And subsequent to that, and there are no screen shots here, after performing the DeCSS I then went through the process of playing resultant clear text files to insure that they were in fact viewable by the viewers.
Q. What was the movie?
A. I think it was You've Got Mail in this particular case.
Q. What player did you use to play the movie back?
THE COURT: Are we just doing Tom Hanks and Meg Ryan in this case?
MR. GOLD: Meg Ryan is my second favorite lady in the world.
THE COURT: I wasn't going to pry, Mr. Gold.
Q. How was the quality of the playback?
A. The quality of the playback, as one would anticipate, was identical to the quality of the playback from the encrypted
Q. When you last visited the list of links on the 2600.com website, did you notice anything at the end of that list?
A. Yeah, the list, it's not shown here because I was not doing a representative sample of the entire page of links, but at the bottom of that page the 2600 website has a whole section where they ask people to mirror the sites, to provide them information about those mirrors, and basically encourages people to further copy DeCSS and provide them information where it is.
MR. GARBUS: I will object to his testimony about the sites or what the documents indicate until the documents are introduced into evidence.
THE COURT: Sustained, but is there any real dispute about this, Mr. Garbus?
MR. GARBUS: Yes. It's his interpretation of it.
THE COURT: I'm not sure I heard any interpretation.
MR. GOLD: I didn't hear any interpretation.
THE COURT: He said that your client's site has a section where they ask people to mirror the sites and provide them with information about the mirrors. So, what do you object to?
MR. GARBUS: I don't object to what you just said.
THE COURT: I take it it's stipulated your client does in fact do what I just said.
MR. GARBUS: Yes.
THE COURT: And looking back at the realtime transcript, what you were I guess objecting to was the language "basically encourages" and so on.
MR. GARBUS: Yes.
THE COURT: Fine.
Q. Did you ever hear the term "input box" in connection with 2600.com?
A. Yes.
Q. Tell us what that is.
A. The bottom of that page, as part of the mechanism that 2600 provides, has an input box where viewers of 2600 or people who have done mirrors can enter the URL or the address of where they have put those mirrors, and then they have a mechanism for sending that information to 2600, and I guess it's my opinion based on that, and the result that this list exists, that 2600 then takes that information and builds this list at least partially from that information.
MR. GARBUS: I object to it.
THE COURT: Sustained as to that part of it, the opinion, but I do hope that we are not just going to do essentially what is conducting a class on the rules of evidence on stuff that really isn't controversial. I take it your client does build the list. Obviously it's got the list on its website. Let's go, Mr. Gold.
Q. What is a URL, Mr. Schumann?
A. URL stands for Uniform Resource locator. It's the technical term for I guess the English name that's typically used to identify websites, you know, the www.2600.com as an example of the URL.
Q. Can the URLs be embedded within the pages of the sites themselves to provide hyperlinks to other pages?
A. Yeah. What happens is that typically if you look at HTML, which is the language most of these pages are written, HTML specifically has effectively a programming language, and what it does is it allows you to, you can define what the text looks like on the screen, and then you define the instructions that are given to the browser when that text is clicked. Okay? So I can write the text "click here" and I can write the text of "here" and then in my HTML the "here" will be the text that's shown to the user, and then www.Cinea.com might be the URL that's associated with that text. So, when the user clicks on "here" the browser executes a search and retrieves the page that said www.Cinea.com. Now it's certainly possible to make that text and the URL identical, so in the case of what's on these 2600 websites the text that's displayed is -- I didn't look at them all, but I have no reason to believe it's not true that the text that's displayed is identical to the actual URL, and that's easy to look at in the source code for the HTML for the page.
Q. You have testified that you were able to save the film You've Got Mail in your computer hard drive. Did you save the entire movie?
A. In this particular example that's shown here, I did not, because this was run on a lower end laptop that did not have enough hard drive storage to store the entire movie.
Q. How much disk drive space do you have on your personal computer?
A. On this particular laptop there was about 4.6 gigabytes of storage. On the previous example, when I did this prior to I believe it was my third declaration in this case, that was done on a standard low end consumer player, and that one had 10 gigabytes of hard drive space.
Q. In terms of your computer, approximately 5 gigabyte hard drive, is that a standard size for hard drives based on your knowledge and observation and experience?
A. In the laptop space, 5 gigabytes is probably the low end of what is available in laptops today. For home personal computers 5 gigabytes is way too small to be sold. I think the base size now is 10 to 15 gigabytes for even the lowest end. I'm sure there are super low end ones, but for the basic consumer it's at least 10, potentially 15 gigabytes.
Q. Have you ever observed any trends in terms of the amount of hard drive space that's currently available on a standard computer?
A. Oh, absolutely. I mean it's a well known fact in the computer industry --
THE COURT: Mr. Garbus?
MR. GARBUS: I object to the question.
THE COURT: Isn't this perfectly obvious to anybody who knows anything about this field? It's in the New York Times, it's on the Wall Street Journal.
MR. GARBUS: I don't know his answer.
THE COURT: It's going up. I mean everybody knows it's going up.
MR. GARBUS: Is that the answer, the sole answer?
THE WITNESS: I mean the fact of the matter is that the hard drive space and computing power in general is collapsing on at least an order of 2X a year, and hard drive space in particular is going down faster than that at price points. I mean it has gone through a tremendous decrease in cost for hard drive space in the last four or five years.
MR. GARBUS: I will object to the answer.
THE COURT: I will strike that answer.
MR. GARBUS: That's what I understood the answer was going to be.
THE COURT: You have greater prescience than I do.
MR. GARBUS: No, I just read his affidavits.
THE COURT: Do you want to try again, Mr. Gold, to get to the part you really want?
Q. Has the amount of hard driver space available in computers sold to the general public been increasing at a rapid rate?
A. Absolutely.
MR. GOLD: Thank you, your Honor. No further questions.
THE COURT: Thank you, Mr. Gold. Mr. Garbus.
MR. GARBUS: We worked that out nicely.
Q. By the way, Mr. Gold asked you if you were retained by Proskauer in this case and you said yes. Is that true?
A. Yes.
Q. And prior to the time that you were retained by Proskauer in this case, you had been retained by the MPAA, is that true?
A. That's correct.
Q. And since you had been retained by Proskauer in this case, because of your good work you have been retained by Proskauer in another case, is that right?
A. Not another case, no.
Q. Tell me what it is, without mentioning the name of the client.
A. I was hired by Proskauer for another matter, but there was no client involved. It was an internal Proskauer affair.
Q. Now, your company was formed in 1996, is that right?
A. 19 --
Q. 1999. Pardon me.
A. Yes.
Q. And you own 86 percent of that company, is that right?
A. Approximately, yes.
Q. And 50 percent of the income for that company this year comes from either Proskauer or the MPAA, is that right?
A. That's certainly possible, yes.
Q. You say it's certainly possible. Is it right or is it wrong?
A. So far this year that is accurate, but I don't anticipate that being true at the end of this year.
Q. Now, your firm consists of two people, is that right?
A. No, right now it's myself, I have two minority partners, and then we have two employees at this point in time.
Q. And for this year thus far it would seem that the primary source of your income will be from Proskauer and the MPAA?
A. Thus far this year, yes, that's accurate.
Q. Had you ever done any work for Proskauer before? Withdrawn.
Let me show you -- by the way, you remember testifying at the deposition back in May when I asked you some questions?
A. Yes.
Q. And do you remember talking about an article in the Toronto Star?
A. Yes, I do.
Q. Now, do you know of anyone who has used DeCSS and then compressed it and then sent it to some other computer?
THE COURT: The question is not clear, Mr. Garbus. Used DeCSS, compressed DeCSS?
Q. Used DivX and then sent it to another computer.
THE COURT: Used DivX to do what?
MR. GARBUS: To compress the movie.
THE COURT: Okay.
A. I have not personally done that, but I have seen certainly plenty of articles of people who have.
Q. Did Proskauer at any time ask you as an expert to try and use DeCSS to encrypt a DVD and then to use DivX and then to send it to see how long the entire process would take?
A. They did not.
MR. GOLD: Objection, your Honor.
THE COURT: What is the objection?
MR. GOLD: I think that he asked him about encrypting a DVD.
THE COURT: Sustained.
Q. Now, do you know of anyone who has had any experience in using DeCSS to decrypt a film and then to compress it and then to send that to some other computer?
A. I certainly have -- again in relation to the articles and discussions in other industry environments, it appears very clear that this is happening, but I personally do not know anyone who has done so, no.
Q. And at the deposition you testified that the only instance you knew of it was the article referred to in the Toronto Star, is that right?
A. At that time, that was my only knowledge, yes.
Q. Let me show you what has been marked as Defendants' Exhibit I. Does this refresh your recollection that that is the Toronto Star article that you referred to in your deposition at page 64 and in your affidavit, the third affidavit?
THE COURT: What are you asking him? Whether he remembers the page number or what?
MR. GARBUS: Remembers reading the article.
THE COURT: Do you remember reading this article, Mr. Schumann?
THE WITNESS: This appears to be effectively the article. I mean I couldn't swear that it's word for word the same but ...
Q. It's the same article that's referred to in your affidavit as the Toronto Star article of May 4 that you have read?
A. It seems to have the same gist of discussion that I read.
MR. GARBUS: Can I just read the article briefly?
THE COURT: It hasn't even been offered into evidence.
MR. GARBUS: I offer it. It's their exhibit, Plaintiffs' Exhibit 78.
MR. GOLD: For what purpose?
MR. GARBUS: What the article does is it shows the difficulties.
THE COURT: For what purpose are you offering it?
MR. GARBUS: To show how it's nearly impossible to use DivX and DeCSS --
MR. GOLD: Objection.
THE COURT: Sustained. Hearsay.
Q. Did you on the basis of this article form any opinion as to the difficulties of using DeCSS and DivX to download a film and then to send it?
MR. GOLD: Your Honor, we haven't offered this witness as a DivX expert.
MR. GARBUS: It's in his affidavit.
THE COURT: Let me just look back over the direct.
MR. GARBUS: He testified, as I remember, about sending this material over the Internet. I presume that that implies the ability to make it, to compress it and then to send it.
THE COURT: Give me a moment to look at my notes.
The witness testified at one point that if a user used DeCSS and then DivX'd the movie, he could do the same things with it as with any nondecrypted version, including copy it to transportable media like CD-ROM, transfer files over the Internet, e-mail it to friends presumably, put it on tape or on a hard transportable media I guess as long as there was enough storage capacity. Overruled.
Mr. Gold?
MR. GOLD: Your Honor, we didn't even ask him if he DivX'd it. He certainly knows all about transmitting files and how any file can be transmitted, but we didn't even ask him if he DivX'd it.
THE COURT: No, I think you opened the door a little bit at least.
MR. GARBUS: May I read the article?
THE COURT: No.
Q. Can you tell us, to the best of your recollection, what happened when the person who wrote that article tried to use DeCSS and then to compress the file?
MR. GOLD: Objection, your Honor.
THE COURT: Sustained.
Q. Now, let me show you Plaintiffs' Exhibit 78. You testify as to your knowledge as to whether Jon Johansen had been involved in using DeCSS for links, and you testified that it was on the basis of articles that you had read. Do you recall that?
A. I don't believe --
MR. GARBUS: I would like the Proskauer lawyers to stop signaling the witness.
THE COURT: Mr. Garbus, I was looking at the Proskauer lawyers, and if they were signaling the witness, the President was flying through the back of the courtroom. It was not happening.
MR. SIMS: We don't have a copy of the exhibit, your Honor.
MR. GARBUS: Plaintiffs' Exhibit 78, I think you have a copy of it.
MS. MILLER: May I?
THE COURT: Yes, why don't you go get it.
MR. GOLD: We have it, your Honor. Thank you.
THE COURT: What is the question, Mr. Garbus?
Q. Is this one of the articles, Plaintiffs' Exhibit 78, entitled "Meet the Kid Behind the DVD Hack" that you read?
A. I'm sorry. Is part of your earlier -- is this a continuation of your earlier question?
THE COURT: Did you read that article, Mr. Schumann?
THE WITNESS: I don't specifically recall whether or not I read the article.
THE COURT: Okay. Next question, please.
Q. By the way, how did you get involved in this with Proskauer? Who contacted you? What did you do, and what did they ask you to do?
A. I was contacted by a gentleman from Proskauer named Bill Hart, and at the time I was first contacted I was asked if I would be willing to be involved in this case and specifically to initially at least to do an affidavit related to this case, related specifically in that case to DeCSS and where it came from and what it did.
Q. And what happened next?
A. What happened next is I agreed to -- again we did this all verbally, there is no written agreement -- but I agreed to work with the plaintiffs and the Proskauer firm in this case.
Q. And at some time did you prepare a report concerning the work you had done for Proskauer?
A. A report concerning the work I had done for Proskauer?
Q. Or for the MPAA?
A. Not for Proskauer, no. I think as I testified earlier I was hired by the MPAA to do an analysis of the DVD or DeCSS development in the Linux community based on the logs, and I did a report on that.
Q. And did you submit that report, or to your knowledge was that report submitted to the Court on the motion for preliminary injunction?
A. I have no knowledge of that. It was not an attachment to my declaration.
Q. You submitted three declarations in this case?
A. Yes, I have.
Q. Did you submit that report as part of any of those declarations?
A. No, I did not.
Q. Now, when you did the report, did you first do an interim report and then a final report?
A. For the MPAA?
Q. Yes.
A. Yes, I did a short interim report and then I did a more detailed final report, yes.
MR. GARBUS: Your Honor, this is one of those documents that I referred to at the end of the day yesterday. I think it has -- and I may be wrong -- it has attorney/client work product.
MR. SIMS: Your Honor --
THE COURT: Mr. Sims, that's enough.
MR. SIMS: I just meant we waive privilege as to that document. I was just advising him that there is no claim of privilege to that document. I am sorry I was misunderstood.
THE COURT: All right.
MR. GARBUS: Let me show you a copy of that document.
THE COURT: The document marked?
MR. GARBUS: I have Defendants' Exhibit CS.
Q. Now, prior to the time that you prepared that report, did you get any documents from the MPAA?
A. Yes, I did. This report was based on a stack of documents I received from the MPAA, yes.
MR. GARBUS: Let's mark as the next exhibit the documents, the stack of documents from the MPAA.
Your Honor, can I just take a two minute break? I have to find some documents, if I may, just two minutes.
THE COURT: All right. Quarter to 12.
THE COURT: All right, Mr. Garbus.
Q. Now, Mr. Schumann, you indicated before that the documents were given to you by the MPAA. This was when, back in November?
A. Yes, November of 1999.
Q. What did those documents consist of?
A. They consisted of printouts from what were essentially a chat group or two development groups within the Linux community that were focused on the development of DVD play back capability for Linux.
Q. You say that were -- what is the LiViD group itself?
A. LiViD was one of these development groups that was focused on the creation of DVD playback capability.
Q. For the Linux machine?
A. Yes, for the Linux operating system, yes.
Q. When was the LiViD group started?
A. I don't know exactly when they started. The logs I received began in I think June of 1999, and it appears they were active significantly before that time.
Q. Did you make any attempt to get the logs from before June of 1999?
A. No, I did not.
Q. And did you see a discussion on the -- by the way, do you understand that most of the people or many of the people on the LiViD group are Linux users?
A. That would I guess appear to be kind of self-evident. The people who are in that kind of area tend to be very biased in terms of what machines they run and what operating systems they like, and people who do Linux are very passionate about their operating systems, so they wouldn't have been there if they didn't care.
Q. And during the course of your investigation or your observing of these logs, did you come across the name Derek Fawcus?
A. Yes, I did.
Q. And did you come across a number of named people who were involved in the LiViD group?
A. Absolutely, there were a number of active members of that group.
Q. And how did you know, for example, that Derek Fawcus was an active member of the group?
A. In my report part of the report talks about what I called people who are active members of the community or people who are active developers in that community, and as you went through the -- and the paper I got was a very large stack, a very large number of posts into these news groups.
Going through it, it became very obvious who was very involved in helping to create this both from a technical perspective as well as providing their time, energy and their skill sets into the environment. Derek Fawcus was one of those members.
Q. Now, do you know what css-auth is? You have heard of that?
A. Css-auth?
Q. Yes.
A. Yes, css-auth is a program that exists today in the Linux environment.
Q. It does the same things as DeCSS?
A. No, it does not.
Q. How is it different?
A. It performs a small portion of what DeCSS does. Earlier I talked about that one of the subfunctions necessary before you can access the content of the DVD is that you need to unlock the DVD drive so that the DVD drive is happy or believes it's talking to a trustworthy host, and css-auth does that particular function.
Q. In connection with css-cat?
A. No, css-auth is a stand-alone program.
Q. What does css-auth work with?
A. It's a program that runs on the Linux operating system.
Q. Now, with respect to Derek Fawcus, when for the first time did you see him appear in the Linux dialog, on the LiViD group?
MR. GOLD: Your Honor, my objection is I don't understand the relevance of this line, and I think it's past anything I opened up on direct.
THE COURT: Mr. Garbus?
MR. GARBUS: The question I understood that Mr. Schumann answered was that he understood that DeCSS was not originally created for the purposes of a Linux open source system. I think that if you look at the Linux logs, and if you look at his report, you see that it specifically was created for the Linux Group. If we don't have a disagreement on that, then I won't pursue it. But that seems to me, what the logs and report indicate, and the function of the report that he was hired to do says Linux CSS development analysis.
THE COURT: Mr. Gold?
MR. GOLD: I'm trying to remember exactly what Mr. Garbus told me that we have an agreement about. And I did not hear enough of that to know. I apologize.
THE COURT: I didn't understand Mr. Garbus to say that he thought he had an agreement with you.
MR. GOLD: Oh.
THE COURT: If he was asking you to agree to something, then I'm confident you are not going to agree to it.
MR. GOLD: That's right. But I don't remember every word he said.
THE COURT: Look, you elicited from this witness his opinion that DeCSS was not developed for Linux, and he gave the basis for his opinion. Mr. Garbus is now seeking to challenge the correctness of the opinion. That's what I understand is going on. Now, is there some reason he shouldn't be allowed to do that?
MR. GOLD: The basis for the opinion were several pages from these logs. There may have been thousands.
THE COURT: That's exactly Mr. Garbus's point.
MR. GOLD: Thank you, your Honor.
THE COURT: Go ahead, Mr. Garbus.
MR. GARBUS: I would like to offer into evidence some of the thousand pages. Excuse me before I approach the bench.
If we can have the witness take a look at the documents that are marked Exhibit AA.
Your Honor, may I approach the bench and give this to the witness?
THE COURT: You may approach the witness.
Q. Mr. Schumann, would you take a look at those documents and tell me to the best of your recollection if these were the documents that were furnished to you originally I guess back in November and December by the MPAA?
A. How much time do I have? I will be happy to take a quick look, but --
THE COURT: The record should reflect that it appears that there is at least 1500 pages in the exhibit.
MR. GOLD: Your Honor, if I may, this witness said that he based his opinion on three pages in the logs. Now, if Mr. Garbus believes there are other pages in the logs which refute that or might change the witness's testimony, then I would suggest he should show those pages to the witness and ask him about them.
THE COURT: Are you folks prepared to stipulate that Defendants' Exhibit AA is in fact the logs that were given to the witness?
MR. GARBUS: Yes, your Honor.
THE COURT: Mr. Gold, are you so prepared?
MR. GOLD: Do you have a copy of Plaintiffs' Exhibit 9 before the witness?
THE COURT: No, he has Defendant's AA.
MR. GOLD: I don't know about that, but I know this is the logs (indicating), and it's Plaintiffs' Exhibit 9. If it's identical to that, it's going to take a little while.
MR. GARBUS: I will take it in in either form. I accept Mr. Gold's statement.
THE COURT: So, let's work with Exhibit 9. You both stipulate that Exhibit 9 are the logs that were given to the witness, do you?
MR. GOLD: Yes, I do, your Honor.
THE COURT: Mr. Garbus?
MR. GARBUS: I will just take a look at it, but I presume it's the same thing.
THE COURT: Believe me, Ms. Miller, I just want one of them.
MS. MILLER: The entire exhibit comprises two binders.
THE COURT: And "want" in this context is a term of art.
MR. HERNSTADT: Your Honor, may I get?
THE COURT: Yes, you are welcome to have the other papers back, Mr. Hernstadt.
Some of my colleagues out West think that litigation has become entirely digital and paperless.
Let's proceed, folks.
Q. Now, have you ever been told by anyone at the MPAA or at Proskauer that they know the name of one single person who ever copied a DVD film through DeCSS and transmitted it over the Internet?
A. I'm aware of I guess the earlier witness in this case at the time that I was permitted to be in the trial, but other than that I have not been told by anyone, by either of those two groups.
Q. So, to your knowledge, as you sit here today, do you know of one person who has ever copied a DVD through the use of DeCSS and used it for home use?
A. There are certainly references in these logs to people who have copied DVDs with DeCSS. I am not capable of surmising what they did with those copies.
Q. And do you know of the name of one person other than in the logs who has ever sold a copy of a DVD that has been deencrypted through DeCSS?
A. No, I have no personal knowledge.
Q. Have you had conversations with Proskauer or the MPAA to determine whether or not they know of any one person who ever made a copy of a DVD through DeCSS and either sold it or sent it over the Net?
THE COURT: Let's find out if this is really an issue in this case.
Mr. Gold, do the plaintiffs contend that there is an identifiable human being that it can point to who has done any of these things? I should say "identified."
MR. GOLD: I think that that is not one of the contentions we have in issue in this case. That's an easier answer to answer than -- I may later today be able to answer the question with a yes or no.
THE COURT: All right. I guess we will just have to wait. Let's go, Mr. Garbus.
MR. GARBUS: Does that mean I should wait until this afternoon?
THE COURT: No, it means you should go ahead.
Q. To your knowledge, has anyone at the MPA ever said to you, or at Proskauer ever said to you, that they saw a film that was transmitted over the Net, the film coming from a DeCSS deencryption of DVD?
A. Again, with the exception of the earlier testimony in this case that I heard in the audience, the answer to that is no.
Q. Let's take Mr. Shamos out of it with respect to all the other questions I ask you if that's all right.
A. Fine with me.
Q. Did anybody ever tell you that anybody ever purchased on a street, in a store, in a business any DVD that had ever been deencrypted by DeCSS?
A. I have no personal knowledge with the exception of having seen what appears to be a pirated DVD where the content clearly had the CSS encryption removed.
Q. Do you know how the CSS encryption was removed?
A. No, I cannot definitively say how the CSS encryption was removed.
Q. So the answer to my question then is no.
Now, do you know of one single copy, a physical copy of a DVD that has been sold anywhere in the world that has been deencrypted by DeCSS?
A. Not without absolute certainty, no.
Q. Do you know -- if I'm being redundant, I'm sorry and I'm sure the Court will stop me.
Do you know of any one movie that has ever been sold in a physical copy on the street that was ever deencrypted through DeCSS?
A. Again, I have no absolute knowledge, no.
Q. Do you know if any one film trafficked over the Internet was ever deencrypted through DeCSS?
MR. GOLD: Your Honor, to the whole line, as you know we submitted a motion in limine which stated that actual copying, while it is another violation of law, is not one that is critical to the --
THE COURT: I understand, and I can play both your arguments here as if I were a videotape player or a DVD player.
I know that his argument is that there is no injury and that's what this is all for. And I understand your argument as well. And obviously this part of the trial is not addressed to persuading me of anything. This part of the trial is directed by both of you to a show.
MR. GARBUS: Your Honor, I'm not interested in show. I am willing to state what you asked Mr. Gold before, namely if this is not part of the case there is absolutely no reason for me to ask any questions about that.
THE COURT: Well, I'm glad to hear that.
MR. GARBUS: That has always been part of my position.
THE COURT: I don't think it is part of the case.
MR. GARBUS: I don't think it is either. I think they have walked away from that, and I think these questions that I'm asking are fundamentally irrelevant, namely -- not irrelevant, but --
THE COURT: You know, I mean it's a little bit silly, because in some ways it's kind of like -- and I don't know if the facts are comparable or not -- but it's kind of like calling in the chairman of the board of Proctor & Gamble who makes 12 billion tons of Pampers every year and ask him if he can identify by name any baby who ever used one. The Pampers are getting made, they are going out of the factory and he has some reason for supposing that they are being used for the intended purpose. Now obviously that's different from this case because we don't have quite the same reason for supposing. But you are asking the Pampers questions right now.
MR. GARBUS: I'm absolutely not asking the Pampers question, and let me see if I can indicate why it is different.
There are ways of determining who buys something if you are interested in determining who buys something if it's being sold, whether that's Pampers or drugs or cars. If the MPAA wanted to determine whether or not there are people out there using DeCSS to break down DVD movies, there are many, many different ways of doing it.
What I was saying is this: I believe that -- and it's not the Pampers question, and I think that's where there is a fundamental disagreement, and it's not the CEO of a corporation. I believe, and I am prepared to take a stipulation and not ask anymore questions about it, that at the present time there is absolutely no proof that DeCSS is being used for any copying or pirating of any kind. Now, it may well be that that doesn't answer the legal question before you as you see it, and I respect that, but I think that the answer is obvious, and I think putting me through making the questions is not my putting on a show but just failing to resolve an issue that at this point in time, after four months of depositions, is so obvious.
THE COURT: Mr. Gold?
MR. GOLD: Your Honor, in fact there are people who know about these things and spend their life knowing about these things, and who believe for reasons one, two, three and four there are copies of decrypted DVDs being offered on the Internet and being sold in hard copy, and they can state the reasons why they believe that. They believe it. I believe it.
THE COURT: And are they going to testify in this case?
MR. GOLD: I think so, your Honor. And I think I'm reminded that Dr. Shamos did. We believe there are reasons. Now if he wants names, addresses and post office boxes, I will agree I don't have one. But we know from the work that we have done, these folks believe -- and they are experts in finding this sort of thing out -- that it's being done in a lot of places.
THE COURT: So let's see if we can get to the stipulation that Mr. Garbus says he will take and quite reasonably says he will take, and let's see if we can avoid this line of questioning, because it's not identical to the Pampers question but it is down to the names and addresses, and nobody reasonably could expect I think proof by name and address. In any case, on anybody's view of the case, names and addresses aren't necessary.
MR. GARBUS: Can I just say one thing, your Honor?
THE COURT: Sure.
MR. GARBUS: I can walk out onto the street and get 50 people who use Pampers. I think the analogy is inappropriate.
THE COURT: Fine, whatever. But with all respect, Mr. Garbus, I think that the ability of this witness or any other witness in this case to give you names and addresses of particular people, which in substance is what you are asking for, couldn't be less relevant.
There is all sorts of evidence here that there are postings on the Internet, that people are out there at least offering to swap films. Now, I don't know whether they really swap them. I don't know what those postings mean, but there is at least a glimmer of something to suggest that maybe there is a problem. Maybe it's a little problem. Maybe it's a big problem. I have no way of knowing. That's why we are having a trial.
MR. GARBUS: May I respond?
THE COURT: Yes.
MR. GARBUS: It's the easiest thing in the world to find out. Easiest thing in the world to find out. They have two defendants in this case. I don't want to argue. It's the easiest thing in the world to find out.
One of the problems we have had in discovery, and that's one of the main issues that's been going on between all of us, is that we have tried to find out what they have done to find out what is perfectly obvious to anybody. We have tried to find out the names and addresses of people who have this information, who have made some attempt to get this information.
Now, if we agree that it is not relevant about any damage to date, then we can leave that alone and that issue is over. If the next issue is is there any actual damage going on out there, that's what we have been, you and I and Proskauer, fighting over with respect to discovery.
MR. GOLD: Your Honor.
MR. GARBUS: And that's an area that we have been precluded from proving conclusively, that there are many different ways of finding out whether anything out on those file sharers come from DeCSS or not.
THE COURT: I am just not rising to the bait, Mr. Garbus. You have not been precluded from that or otherwise. Let us just go on. I am going to hope that we are going to have this subpart of this controversy resolved by stipulation by 2 o'clock.
MR. GOLD: Your Honor, I might note that we tried in a very good way to find out. We asked who downloaded.
THE COURT: Look, this is not a seminar on what you have both done in this case.
MR. GOLD: We asked who downloaded from defendants' website DeCSS, which we can tell if we get access to that computer, and they won't give that, and they won't reveal it.
THE COURT: I understand that.
MR. GOLD: Then we could have paraded in a lot of witnesses who used DeCSS to decrypt DVDs, a lot, but we didn't get the information. It's not as easy as Mr. Garbus states, because he didn't give it to us.
THE COURT: All right. Next question.
Q. Have you looked at any of the file sharing sites on the Net?
A. You are referring to like Gnutella and those types of sites.
Q. Yes.
A. Yes, I have, or to movie file. They are not sites so much as systems.
Q. And have you been involved in any IRC chat rooms?
A. No, I have not.
Q. And do you know whether or not in chat rooms -- have you been involved in chat rooms of any kind?
A. I don't normally go to those environments. I'm sure I have been there once or twice, but I don't have that much time in my life. I'm sorry.
Q. Now, in the file sharing rooms, do you know the name of some of the companies that share -- websites that have file sharing with respect to films?
A. I think in all of the current set of file sharing utilities, I think it's important to distinguish between what I will call file sharing sites versus these newer and more insidious file sharing utilities.
MR. GARBUS: Maybe we can strike the word "insidious."
THE COURT: Let's just go on.
A. But if you look at these file sharing utilities, they can all be used to transmit essentially any type of digital file, and that certainly includes full audiovisual content.
Q. And is there any way of getting information about who uses any of these particular sites?
A. That depends on the system in question. A system like Napster that implements a centralized indexing and I guess user ID type of system could clearly have the potential of identifying their users, at least to the block they come from, to use an earlier analogy.
Other newer systems such as Freenet and to a lesser degree Gnutella have been very carefully architected to try to provide as much anonymity as absolutely possible to the people transmitting the people.
Q. To your knowledge as a security expert, is that anonymity unbreakable?
A. It probably depends on the resources of the people trying to do it. I wouldn't venture to guess what some three letter agencies are capable of. But to a normal environment it's extremely difficult to break that type of system.
Q. Do you know whether the MPA has ever made any attempt to break any of that system?
A. I have no knowledge.
Q. Now, with respect to the people who you referred to in the logs who said that they made DVDs through DeCSS, to your knowledge did the MPA ever try to contact any of those people?
A. Again, I have no knowledge.
Q. Now, in the LiViD group there are e-mail addresses, are there not?
A. Yes, certainly.
Q. And how many different e-mail addresses were there in the LiViD group documents that you saw over the three to four month period that you looked at it?
A. I'm sure there are potentially hundreds of identified participants in those groups.
Q. To your knowledge did the MPAA, Proskauer or anybody else ever try and find one of these people?
A. No. Again, I have no knowledge of what they did outside of my interactions with them.
Q. Now, you talked about Derek Fawcus. Had Derek Fawcus been involved in the Linux Group?
A. Yeah, absolutely, he was a very integral member certainly in the areas I looked at.
Q. And which areas did you look at?
A. The logs, this immense sheet of paper here is actually only a subsection of the overall DVD development logs that exist around this time, and they are focused specifically on, not specifically, but primarily around discussions relating to DVD security and the DVD player development. There are clearly other postings in these electronic versions of these logs that are not in this paper.
Q. I'm not clear. You say these logs were a subset of some other set.
A. That's correct. These logs are printouts of the full development group logs, or these are essentially development postings, if you will, and they are a subset of the areas of discussion in that, and they are the subset that focuses on the decryption capability and the need to do decryption and related chats that people discussed.
Q. And are there other subsets that deal with the development of the Linux DVD player?
A. Yeah, absolutely. I mean, in terms of the overall relevance of CSS and the encryption and decryption functions necessary to play a DVD versus the other set of functionality necessary to play a DVD, the security aspect is maybe 1 percent of the total project that's required in order to do that.
Q. Now, in the other subset of LiViD DVD information, is there any dialogue in there about CSS, DeCSS or the encryption code that's needed?
A. I have not reviewed the full set of the Linux development chats. I was asked and I reviewed and my reports are based on the material that was provided to me by the MPAA.
Q. So, the MPA selected out of the Linux or LiVid Group, the material that they wanted you to see, is that right?
A. I would not characterize it that way.
Q. Did you get everything from the LiVid group?
A. I clearly did not get a full set of logs. It appears that and I don't know who selected these or under what criterion, but in my -- as I reviewed through them, there were no obvious missing holes or references to -- to discussions that would have referred to other postings in these logs that were not there.
In other words, this appears to have been at least a reasonably complete subset of the overall logs as it relates to the CSS portions of the DVD.
Q. But you don't know -- who made the selection process, Mark Litvak?
A. I don't know who at the MPA made the selection process. These materials were provided to me by Mark Litvak of the MPA.
Q. Now, do you know if there are any other postings in the LiVid group about reverse engineering?
A. Reverse engineering is a critical feature for somebody who is -- people who are undertaking this type of a project and I would have no doubt that the other logs may -- or the other parts of the log may well talk about reverse engineering to, for example, tell you how to identify the language tracks or how AC3 works or who knows, there are many other parts.
Q. Now, when you went to 2600.com, did you find their source an executable code?
A. The listings in 2600.com and the links that it goes to frequently reference DeCSS executable and also occasionally reference DeCSS, what's referred to as "source code."
Q. You're not saying, are you, that when you went to 2600.com, they were not posting the source code?
A. What I was trying to say as I was trying to finish my answer was the data over the files that were referenced as source codes, some of which I downloaded were, in fact, only a small subset of the full source code that would be necessary to actually implement and create a running DeCSS program.
Q. So, some of the source code that there was on 2600.com was linked to by 2600.com did not give you a complete source code, is that right?
A. I in any of the representations that I have seen of DeCSS source code, including those in the affidavits provided by the defense has not been a complete set of source code necessary to implement a full DeCSS program.
Q. And that's based on your understanding of what is necessary for a full source code to implement a DeCSS program, is that right?
A. I think after 15 to 20 years of writing software, I can very safely say that that is not the full DeCSS source program.
Q. Now, did you at any time ever see the full source code, are you stating that 2600.com did not post at any time the full source code for DeCSS?
A. I have not in my -- yes, eight months of involvement in this matter so far ever seen a full posting or a full set of DeCSS source code; no.
Q. Do you have -- how many times did you go to 2600.com?
A. Again, I think it may well be in the dozens by now.
Q. Do you have any records of that?
A. There are some records that I have provided in pieces of this. There's -- I did not keep a log, a detailed log every time I went there; no.
Q. Is it your answer then that there are no records of when you visited 2600.com?
A. I'm sorry -- yes. I did not keep detailed records of every time. I kept records in a notebook of my interactions related to this case and when and where I was requested to do work and the work I did related to this case by the plaintiffs and some of those records may indicate that I was going out to those sites as part of particular functions I did.
Q. Now, is it your knowledge that in your notes, some of which have been furnished to us, you ever state going to 2600.com at any particular time or at any particular place?
A. Again, I don't know if the -- I'd have to read through them in detail. I don't know if they specifically reference 2600.com.
I may well have just said, go get DeCSS. I don't know if those notes specifically reference 2600.com. They may only reference getting DeCSS, and that type of stuff, because in those notes, I may have said, go get DeCSS, and then, for example, the last time I did this in the previously-entered documentation, obviously the documentation shows in detail where I went and what I did.
Q. Now, when your report, by the way, is entitled, is it not, "Linux CSS Development Analysis," is that right?
A. This is the report I did for the MPAA?
Q. Right.
A. I believe, I will check, but yes, that's the title that's on it.
Q. And did you do anything for that report other than analyze the documents that they had given you, namely, those logs?
A. Again, as it describes in that report, the report is based on what was provided to me by the MPA; that's correct.
Q. So, you made no independent investigation of your own about any contribution made to Linux by Johansen or Stevenson or anybody else?
A. I did -- I looked in no other places as the report clearly states, my conclusions are based on the contents of the logs. I may have -- well have on one or two occasions gone out and looked at these development logs, not during that. Later, I did to validate that those were, in fact, representative of what was there.
Q. Now, with respect to Johansen, were you ever told that Norwegian lawyers had prepared a report concerning Johansen and then given to it Proskauer concerning Joe Hansen's involvement in DeCSS?
A. No, I was not.
Q. Do you know of any independent investigation that the MPAA ever made of any of the people whose names are identified in those logs as having been involved in the construction of DeCSS?
A. No.
Q. Do you know of any independent investigation that was ever made by the MPAA or anyone else of any of the people who allegedly claimed on those logs that they had used DeCSS?
A. Again, no.
Q. Do you know if the MPA ever made any investigation -- I don't think this is redundant, but I may have asked it before -- of any of the people in those logs and whether or not they had ever truly used DeCSS to download a film?
A. I'm sorry, DeCSS doesn't download film.
Q. DeCSS -- excuse me -- and then DiVX a film?
A. For the period covered by these logs in this report, to my knowledge, DiVX was not in existence. It certainly wasn't referenced by that name in these logs.
Q. DiVX was not in existence in November and December of 1999?
A. I don't believe it was. It certainly didn't figure prominently that I remember in these logs.
Q. Now, do you know how long it takes to make a DiVX of a, let's say, 6 megabyte film -- 6 gigabyte film?
A. I'm sorry. Could you describe to me what you mean by "making a DiVX"? It's not clear.
Q. Do you know how long it takes to compress a "Sleepless in Seattle" or "Matrix"?
A. That, as I testified earlier, these algorithms including those using the MPEG4, the algorithms used in the DiVX system are characterized by the fact that they are designed such that more effort can be put into the compression portion of the and/or the creation portion of the content than in the playback portion of the content.
And so, even in compression for DVD movies, the act of compressing those movies then to be nonrealtime, particularly if you want to have high quality, so there is no reason to believe that the DiVX technology itself will have any fast compression speed because you're typically not worried about that because that's a one-time operation and what you want to do is you want to ensure that you can decompress it and recreate the image in realtime as quickly as possible.
Q. You heard Mr. Shamos yesterday testify in court about the difficulties of synchronization with audio and visual when you're doing a decompression?
A. I heard his, I guess it's called direct testimony before I was asked to leave; yes.
Q. And did you hear him talk about spending 10 hours trying to synchronize the digital and the audio sections of the DVD?
A. I -- if that was his exact testimony, he clearly as a novice was understanding that synchronization of audio-video is a significant problem in the creation of these types of a compressed data files.
Q. And do you recall at all the Toronto Star talking about the difficulties in synchronization?
MR GOLD: Your Honor --
THE COURT: Sustained.
Q. Now, did you also come across the name Paul V-O-I-C-K-S when you were going through the logs?
A. V-O-I-C -- there was a Paul.
Q. It's in small print and my eyes aren't as they good as they should be. V-O-L-C-K-E?
A. I don't know how to pronounce his name because he was a prominent member of the development group.
Q. The Linux DVD?
A. It's Linux DVD, he was a frequent contributor to that group; yes.
Q. And he was trying to work with DeCSS in order to make a Linux player, is that right?
MR GOLD: Objection, your Honor.
THE COURT: Sustained.
Q. And how did you learn -- and what was he doing, to the best of your knowledge?
MR. GOLD: Objection, your Honor.
THE COURT: Sustained.
Q. Do you know if anybody at the MPA ever tried to contact him?
A. Again, as I've previously testified, I have no knowledge about who the MPA may or may not have contacted.
Q. Now, do you know who Andreas Bogk is; B-O-G-K?
A. Yeah, Andreas was, again, another name that frequently showed up in the these development logs and was a member of these development groups.
Q. And in development logs, is he referring again to DeCSS?
A. If you can point me at a particular page.
Q. I will, after lunch.
And does the name Johan Addis mean anything to you?
A. Yes.
Q. And who is he?
A. Johan Addis was a, what in my report I describe as essentially an outsider and he was a person who showed up very briefly in the group, presented a key technology to the Linux development groups, and then appears to have disappeared again after that presentation of the technology.
Q. Do you know if he appeared again under any other different name?
A. I don't recall. I mean, again, these are handles. So, these may be handles. These may be real people's names. They may not be. But to my knowledge, in my reading through these logs, I saw no indication that he came back again later under a different name.
Q. And could you tell if you saw someone come in with a different name talking about the same subject matter whether it's Addis or someone else?
MR GOLD: Objection, your Honor.
THE COURT: Overruled.
A. In certain circumstances, if someone was trying to have two handles, they might accidentally reveal both of their handles. So, I believe Jon Johansen did that in one case where he showed up as "digtech" earlier and then came back later in his own name, in that particular case, in his E-mail, he maintained the "digtech" E-mail name.
Q. So, it's not uncommon for people on the LiViD group to come in under one name, then a different name, then a different name?
MR. GOLD: Objection, your Honor.
THE COURT: Sustained.
Q. Other than Johansen, do you know of any other people who came in and out of the LiViD group with different names?
A. In that environment, I did not see many circumstances of that. I believe I speculated around, I think it was Andreas. That was one of the German members of the group who may have come back with an anonymous posting that I thought might be related and I described that in my report.
But in general, there was no indication. I mean, this was not a group that was trying to hide what they were doing. They had no reason to be anonymous and what they were doing, the people who were doing the actual Linux development were very open and very descriptive in terms of what they were doing.
It was not an environment where they would want to or to have different pseudo names, if you will.
Q. And many of these people who were doing the Linux development were attempting --
THE COURT: The reporter couldn't get the question. I couldn't hear it. Start on a new question, Mr. Garbus.
MR. GARBUS: Now, I forgot the question.
THE COURT: Well, it's unanimous.
Q. Does the name Martin Mueller mean anything to you?
A. Yeah, I believe that was another name that was in the logs.
Q. And you understand that the people who were working on the DVD, the LiViD playback were also the people who were working, they were also, many of them working on DeCSS and the construction of --
MR. GOLD: Objection, your Honor.
THE COURT: Sustained.
Q. Your report to the MPA concluded that the effort to crack CSS was done as a part of a bona fide effort to write a Linux DVD player, is that right?
A. I don't know if I phrased it exactly that way. What my report concluded was that there were clearly two groups who were trying to create a DVD player for Linux.
There was tremendous discussion in those groups about how to do that and also about and in particular the groups were trying to create what I will call legal or distributable -- commercially-distributable DVD players for Linux.
Now, as part of that effort, the groups or at least the portions of the groups that I looked at recognized that the ability to decrypt CSS was necessary in order to make a player that could play, I guess, all released DVD movies because CSS is not a requirement of a DVD movie, but again many movies are, in fact, CSS encrypted, but that the -- I would not at all characterize it that they were trying to create DeCSS.
They were trying to understand how the encryption worked so that they could create a decryption function inside of the player so that could, in fact, play the movies.
Q. Thank you.
Do you know enough about the history of the DVD, when DVD first started, was the whole question of CSS an integral part of the discussion of DVD?
MR. GOLD: Your Honor, I object to that.
THE COURT: Grounds?
MR GOLD: On the grounds that it doesn't have anything at all to do that I can see with the direct testimony and I don't think he has a foundation for it.
THE COURT: Sustained.
Q. Do you know anything about the use of CSS or the consideration of CSS when DVDs were first being created?
A. I'm sorry. Can you repeat that question?
Q. You knew that -- did you know working in the field that you worked, that as a necessary incident to the sale and distribution of DVDs an encryption system had to be developed?
THE COURT: Did he know when?
Q. Did you know in 1945 -- 1995, 1996, 1997, 1998?
THE COURT: Let's take one of those years at a time. Do you want to start with 1945, Mr. Garbus?
MR. GARBUS: 1995.
Q. When for the first time did you see a DVD?
MR GOLD: Your Honor, I don't think we have a foundation for this line, your Honor.
THE COURT: I haven't heard the question yet.
Q. When for the first time did you see a DVD in a store?
A. In a store? I believe it was late 1996, I think was when the format was released.
Q. And did you know that DVD had an encryption system -- a security system?
A. Absolutely, or that there was a security system associated with many DVDs; yes.
Q. And did you know prior to the time that there's a discussion about a release of a DVD, there was a concern that there had to be an encryption system provided so that it could not be ripped off?
A. I'm certainly aware that the -- that the CSS system was created to protect the content on DVDs.
Q. And do you know when the -- and was the creation of CSS at about the same time that they first started to distribute DVDs?
MR. GOLD: Your Honor --
THE COURT: Sustained.
Q. Do you know when they first created the CSS system?
MR GOLD: Your Honor --
THE COURT: Sustained.
Do you know of your own personal knowledge when CSS was created?
THE WITNESS: I have a fair understanding of that matter; yes.
THE COURT: And how do you have this understanding?
THE WITNESS: Because I was active in the development of the Divex system and we were intimately tied into DVDs and the sale and completion of DVD technology.
THE COURT: And this is the D-I-V-E-X system?
THE WITNESS: Yes, D-I-V-E-X system; that's correct.
THE COURT: All right. Go ahead, restricted to what you know of your own knowledge as distinguished from what you have heard, what people told you, what you have heard.
THE WITNESS: Yes, correct.
THE COURT: All right.
THE WITNESS: I'm sorry. What is the exact question?
MR. GARBUS: Can we have the question, again?
A. The CSS system existed at the time of the first commercial sale of DVDs.
Q. And do you know when they first began based on your experience and based on your history with DiVX when they first began contemplating CSS?
A. No, I don't know the exact date of that.
Q. Do you know when they first began contemplating an encryption system for DVDs?
MR. GOLD: Your Honor --
THE COURT: Do you know who even Mr. Garbus is talking about when he says "they"?
THE WITNESS: I presume he means the developers of the DVD forum which was the body that was creating the technology.
MR. GARBUS: Exactly, your Honor.
MR GOLD: Your Honor, I think that we are delving into dates that run into '91, '92, '93 for what irrelevant reasons, I can't imagine. They don't have very much to do with this case that's being tried in this courtroom.
THE COURT: Sustained.
Q. Did you state in an affidavit and in your testimony in a deposition that everybody knew that the CSS system would be broken at one time or another?
A. I believe I stated that every security system is presumed to be broken at one time or another.
Q. And with respect -- and is conspiracy a security system?
A. Conspiracy is a security system; yes.
Q. Now, were there any conversations that you were involved in while you were at DiVX about how long the CSS security system would exist until it was broken?
A. We -- we may have done some speculations about that, but it clearly was not a critical issue for us because we had a different security system.
Q. To the best of your knowledge, what were your judgments about how long the CSS system would exist before it was broken?
MR GOLD: Objection, your Honor.
THE COURT: What's the relevance of this?
MR. GARBUS: I think it's relevant to show and I think we could show if we have the evidence that since 1997, the movie industry knew that CSS had been broken and they had to come up with another security system.
THE COURT: And how is that relevant? I'm sorry.
MR. GARBUS: It's relevant in several ways. It's relevant with respect to whether or not, as this Court phrased the question, whether this was an effective security system and whether the circumvention of it, the legal consequences of the circumvention of it, in other words, if the security system was known back in 1997 to be unable to protect the material, then the circumvention of it, it seems to me, has a different significance than if the motion picture industry or the plaintiffs did not know of it.
And it is my understanding based on the some of the testimony that I have heard that they knew that in 1997, that it probably had a life history of a year, and it goes to the question of harm and it goes to the question of what the motion picture industry did knowing that.
THE COURT: Mr. Gold?
MR GOLD: The statements, obviously, we disagree with the statements that Mr. Garbus has made that he presumes to say are factual. But I don't see how this witness can testify to what the movie studios knew.
MR. GARBUS: I'm not asking him that. I'm asking him what was going on at that time based on the position that he had with respect of conspiracy and the system and the speculation he said and the basis for the speculation of how long that system would be viable.
THE COURT: Mr. Gold, what is the relevance to this case, which is what I thought your objection was, of whether this was a good, bad or indifferent security system and whatever it was, what the movie studios knew about that?
MR GOLD: That has no relevance to this case. There is a question of whether the effective system, as the statute uses it and defines it, which has absolutely nothing to do with the things --
THE COURT: The objection is sustained.
The statute in explicit terms, which I didn't phrase, the Congress of the United States phrased, says that it is inappropriate to provide or offer to the public any technology that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title."
If it ended there, the testimony would be relevant because it might be arguable that Congress intended that only good security systems be protected. It does not end there. It goes on in 17 U.S. Code, Section 1201(a)(3) to define the term "effectively controls access to a work."
The statute reads, "A technological measure effectively controls access to a work if the measure in the ordinary course of its operation requires the application of information or a process or a treatment with the authority of the copyright owner to gain access to the work."
Objection sustained.
Q. The relevant part of the DeCSS source code, would you agree is functionally the same as css-cat and css-auth?
A. I'm sorry?
Q. Is it fair to say that the relevant parts of the DeCSS source code are functionally the same as css-cat and css-auth?
MR GOLD: Your Honor, I object to that. I find it vague and I'm not sure what it's meant to get to.
THE COURT: Well, I think I know what it's meant to get to. The question is obviously compound because what I think Mr. Garbus is asking about is whether you put css-cat together with css-auth, you have something that's awfully like css-auth. I understand where he is going.
But we will break now for lunch until 2 o'clock.
A F T E R N O O N S E S S I O N
2:00 p.m.
MR. GARBUS: I thought over lunch about a way that might save some time.
THE COURT: Good.
MR. GARBUS: I'd be glad to approach the bench for it, because I don't want the Court to indicate -- feel that I'm talking in somewhat for a larger audience and I'm glad to do it at the bench.
THE COURT: Fine. Come up.
MR. GARBUS: It seems to me what this witness is being called to do, among other things, to go through a series of logs and out of that series of logs, he draws certain conclusions and he draws certain conclusions about whatever he has testified to.
I would be comfortable doing the entire set of logs rather than going through it piece by piece. He also has prepared two reports, a short interim report and a very long report. I can take him through the report step by step, I think it's unnecessary.
I, at the end of the day, his expertise, let's say in looking at these reports and making whatever conclusions he makes I think any judge in this is going to make his own conclusion based on these reports.
Without denigrating him as an expert, I think the Court can come to his own conclusion. I think to go through these reports or to go through these documents or through these postings is an enormous waste of time.
I would be agreeable to enter into a stipulation so we can do away with that issue. I was prepared to do away with that issue early on.
THE COURT: Yes, I understand that.
Mr. Gold?
MR GOLD: What was No. 1, you want to put in?
MR. GARBUS: I see no point. You took three logs out. You put them in. They come from this subset. There's apparently a larger subset. Forget about the larger subset. You put this subset in in the same way you put the other subset in. That's issue No. 1.
No. 2, he prepares two reports. The first report is two pages. The second one is somewhat larger. He makes an analysis of these logs and he comes to certain conclusions. It seems to me that although they are logs and at some point in time the judge is going to have to make his own conclusion about that and I see no particular point or richness in spending time with him on his report particularly.
I think anybody could have made those conclusions. I may be wrong. In any event, the judge is going to have to come to a decision on those issues.
THE COURT: What?
MR GOLD: Well, we think that the reports are -- we've already agreed to their authenticity. We think the reports --
THE COURT: I'm sorry, the reports?
MR GOLD: The two reports that this witness produced after he, a preliminary report and a final report after he went through these logs and did what the MPA asked him to do about the LiViD group.
THE COURT: Right.
MR GOLD: Certainly his -- we would agree to the authenticity of all of it. His reports are reports that he wrote and believes accurate. I have no problem with that. I think the longer document is already marked and we've agreed to it as authentic, the exhibit he had --
THE COURT: Plaintiff's Exhibit 9.
MR. GOLD: Yes, we said it's authentic. I think that it's irrelevant, but --
THE COURT: Look, it's obviously not irrelevant because he reviewed it and came to certain conclusions after reviewing it and so it's relevant to the extent, at least, of bearing on what weight ought to be given to the conclusions he drew.
MR. SIMS: For that purpose.
MR. COOPER: The question is being offered --
THE COURT: You're not offering it for hearsay.
MR. GARBUS: No. In other words, he drew his conclusions based on other documents which I perceive to be subject to hearsay. The Court allowed those conclusions to be drawn. He was an expert, etc., etc., by putting in these documents and they have the same weight, I presume, as the other logs that went in. We now have all the logs subject to --
THE COURT: So, if I understand where we are, everybody is agreeable to Plaintiff's 9 coming in for the limited purpose of illustrating the materials that the witness looked at in forming the conclusions to which he's already testified. They obviously bear on the weight to be given his testimony.
MR. GOLD: Yes, your Honor.
THE COURT: Are we all agreed that far, Mr. Garbus?
MR. GARBUS: Yes, your Honor.
THE COURT: And it's not offered for any purpose?
MR. GARBUS: It's offered for whatever purpose the other logs are offered for, that which is for that purpose.
MR. HART: We are agreed to what you said.
MR. GOLD: The judge correctly said -- I understood everything the judge said, and we agree to it.
THE COURT: That takes care of this. We come to the next question of two reports. I take it, Mr. Gold, you want the reports in; right?
MR GOLD: No, we never offered them.
THE COURT: You, Mr. Garbus, want to offer the reports?
MR. GARBUS: I offer both.
THE COURT: Are you offering them for the truth or for some other reason?
MR. GARBUS: It's his opinion and it's his statements.
THE COURT: Do you have any objection to the reports coming in?
MR. GOLD: Well, I don't think the -- no.
THE COURT: That's easy.
MR GOLD: That's easy.
THE COURT: Now, issue No. 3 is that Mr. Garbus and I are still both waiting for an answer on what we can do about this litany about did you ever know anybody who used Pampers -- injecting a note of humor, whether it's entirely apt or not.
MR. GOLD: I think it's apt to inject all the humor.
MR. COOPER: What is the suggestion being made with respect to that?
MR. GARBUS: That as of today, nobody knows any one person that has ever transmitted on the Internet or sold a copy of a DVD sourced by DeCSS either -- period, is that right? I don't know if I stated.
MR. GOLD: (1) it's not true. And (2) we can't stipulate to that.
THE COURT: What do you mean, it's not true?
MR GOLD: We do know some individual who -- we believe we know some individual who has, in fact, begun this.
THE COURT: How many?
MR GOLD: One, plus.
MR. SIMS: Not necessarily eight. We can't conclusively prove that it was sourced from goods, the witness would say that he believes they are.
MR. GOLD: He would say --
THE COURT: Could we get back to the forest and away from the trees?
MR GOLD: Yes.
THE COURT: The forest is there as a broad proposition.
If I understand what's being said here, you were able to give the name of A or B, these are options, more than a handful of people and the rest follows, as Mr. Garbus stated.
MR. SIMS: Who we are certain used DeCSS.
MR. COOPER: DeCSS; right.
THE COURT: And you are still claiming it happened and you're going to offer various evidence in an effort to establish that it happened.
MR. GOLD: But this is just the name, address, business.
MR. GARBUS: Excuse me. Let the judge say it.
MR. GOLD: If it's the name-address business, we can make some leeway.
MR. GARBUS: Do you want to state it, Judge, or shall I state it?
THE COURT: You try. Let Mr. Atlas try. Mr. Atlas is more articulate.
MR. ATLAS: It's an issue whether you can identify for sure.
MR GOLD: Name and address.
MR. ATLAS: I think they go by nicknames.
MR. GOLD: I see what you're saying.
MR. ATLAS: Handles. I'm not sure what this evidence you're going to have. I haven't seen any admissible evidence that you can identify a person or a company or an entity who has actually used DeCSS.
THE COURT: Identified by name or nickname or handle, how is that?
MR GOLD: Who has actually --
MR. ATLAS: Do you have any proof of anybody using DeCSS to pirate DVDs?
MR. GARBUS: Some guy on the Internet says, I used it, and his name is John Jones. I'm taking that out of this because John Jones could have used it and not have used it. I could go on the Internet say sending out 4,000 e-mails saying, I called the president. I don't see that as having much relevant weight.
MR. ATLAS: It's inadmissible.
MR. HART: And this is why they're -- they want to talk about the weight of particular kinds of proofs.
THE COURT: No, look, you people are making a big problem where there isn't is problem, with all due respect.
MR. GOLD: It could well be. I see a problem and I'm trying hard to see why I'm --
THE COURT: He wants a stipulation which in substance says putting aside whatever handful of specific cases you have, if any, that you cannot point by name.
MR GOLD: By name.
THE COURT: And the name is here broadly defined.
MR GOLD: Right.
THE COURT: You cannot point by name to a single individual who for sure DeCSS one of your disks, and transmitted it over the Internet or sold it.
MR. ATLAS: Actually, maybe. Can you point to a single instance of this happening?
THE COURT: Say it again?
MR. ATLAS: A single instance. They seem to be getting hung up or hang something on the name issue. Can they point to a single instance where DeCSS used to do both of these things? That's why we ask these questions of the witness. We don't think there is an instance other than their own experts who have done any and traded it over the Internet.
THE COURT: They're going to ask me to infer from whatever other evidence they have that it has happened. And your point is putting aside the inference to be drawn from other evidence, they have no direct evidence of a specific case of where that happened.
MR. ATLAS: Yes, I think that other evidence is certainly going to be offered for the truth, and it's hearsay.
MR. GARBUS: Let's not offer that.
THE COURT: We'll deal with that later. How about that? How about the direct evidence inference formulation?
MR. COOPER: Do you have any problem with that?
MR. SIMS: There is no direct evidence of a --
MR. COOPER: Of a specific instance.
MR. SIMS: Of a specific individual who has used DeCSS and we can certainly establish that DeCSS was used to decrypt a DVD and transmitted.
MR GOLD: You mean, establish beyond any reasonable doubt.
THE COURT: Come on.
MR. SIMS: No, no, but we need to distinguish between inferences and --
THE COURT: I'm going to try and state when we go back, we will deal with the other points first. You can think a little on this one.
MR GOLD: Thank you, your Honor.
THE COURT: I think we've made some progress on compression of the length of the trial.
Plaintiff's Exhibit 9 is received for the limited purpose stated at sidebar essentially without meaning to modify in any way what was said at sidebar for the purpose of illustrating in part how this witness reached certain conclusions he's expressed and for the purpose of assessing what weight they are to be given.
Second, the report, the interim report of the witness I believe to the MPAA will be received.
What are the Exhibit numbers?
MR. GARBUS: There's so many different numbers on these documents. I have -- I have something called 15 for identification and I have GD.
MR. HERNSTADT: Your Honor, if we have a minute -- thank you.
MR. GARBUS: There's that and the interim report.
THE COURT: While Mr. Hernstadt is finding the Exhibit numbers, I will attempt to state what I conceive to be the agreement at sidebar on the point we were discussing before lunch and then we will find out whether I have done it to the satisfaction of everyone.
It is the position of the plaintiffs in this case and they seek to establish, among other things, that the DeCSS has been used to decrypt CSS-protected movies on DVDs and that such decrypted movies, that is, those decrypted by DeCSS have been transmitted over the Internet and disseminated in other ways.
With the exception of work that was done for purposes of the lawsuit under the supervision of the plaintiff's counsel, I understand plaintiffs now to be willing to stipulate that there is no direct evidence of any specific incident in which an identifiable person decrypted using DeCSS a CSS-protected DVD movie and then transmitted it via the Internet or otherwise distributed it.
Assuming they stipulate to that, however, it is understood between both sides that it is nonetheless plaintiff's contention that on the basis of all of the other evidence at the trial, including circumstantial evidence, I should nevertheless draw the inference that it has occurred in the past and is likely to occur in the future and by entering into the stipulation, they are not in any way giving up that argument.
Now, have I accurately stated it from your point of view, Mr. Gold?
MR. SIMS: Your Honor, may I?
THE COURT: Mr. Sims?
MR. SIMS: Well, first, I want to be clear because the first line you read said, we seek to establish, and it has been our position and remains our position that we don't need to establish that, and I just wouldn't want this --
THE COURT: I'm not deciding whether you need to establish.
MR. SIMS: I understand. I just want the record to be clear.
THE COURT: Is the stipulation as I stated it, Mr. Gold, acceptable to the plaintiffs?
MR GOLD: Yes, obviously since you agreed with Mr. Sims, yes, your Honor, it is.
THE COURT: O.K., Mr. Garbus, is it acceptable to the defendants?
MR. GARBUS: It is. The word "identifiable" we understand to include people's names, incidents, and I'm just trying to think that it covers the entire --
THE COURT: Names, nicknames, handles is what we discussed at the sidebar.
Satisfactory to both sides?
MR GOLD: Yes, your Honor.
MR. GARBUS: Yes.
THE COURT: O.K. It is so stipulated.
I appreciate both counsels' efforts because hopefully that will really get us some very small compression ratio at least.
Mr. Garbus, go ahead.
MR. GARBUS: Let me then introduce into evidence at least the exhibits which are the two reports. AI is the December 6, 1999 report designated as the interim report and CS is the report dated December 20, 1999 called the Linux CSS development analysis.
THE COURT: O.K., those are the right documents, Mr. Gold?
MR GOLD: Yes, your Honor. We have no objection to the introduction of those documents.
THE COURT: Defendant's A as in "Alfred" I as in "Isador" and C as in "Charlie" S as in whatever you like are received.
(Defendant's Exhibits A, I, C and S received in evidence)
MR. GARBUS: I just should indicate that that document CS has as a cover sheet, the people -- it's more than the report. It has a cover sheet indicating to whom the report says, it has an appendix which I consider part of the report and the very last page is another cover sheet indicating, again, to whom it is sent. That's the document that I have.
THE COURT: Any problem with that?
MR GOLD: Well, your Honor, what we said at the sidebar, I think, is we have no objection of the introduction of that into evidence for the purpose of which it's stated to be introduced, which is what did this witness rely on in coming to his conclusion?
THE COURT: Well, and what his conclusions were. This is a report on his conclusions.
MR GOLD: Yes, your Honor.
THE COURT: Any problem with the cover sheets, Mr. Gold?
MR GOLD: No.
THE COURT: Done.
MR. GARBUS: Thank you very much.
THE COURT: Proceed, Mr. Garbus, please. Robert Schumann, resumed. CROSS-EXAMINATION Continued
Q. Do css-cat and css-auth together do the same thing as DeCSS?
A. Do they do the same thing? No.
Q. What is the difference?
A. Css-auth and css-cat implement portions of what DeCSS do similar to like the parts of a lock, that they would be equivalent to pieces of a lock, but are clearly not the lock in its whole.
Q. Can you get any more specific than that?
A. Yes. Css-auth, as I believe I've previously testified, specifically deals with the function of unlocking the DVD drive and it's a stand-alone program that runs under Linux command line with Linux.
Css-cat is similarly a stand-alone Linux command line program whose -- which implements the decryption algorithms itself, the decryption portion of the function that DeCSS performs.
Q. And together do css-auth and css-cat result in a decrypted
A. Css-cat?
Q. And css-auth?
A. Do they together result in a decrypted DVD?
Q. Yes.
A. With specific -- under specific direction of the user; yes.
Q. And both of those are Linux programs?
A. Both of those are Linux command line programs. They have no user interface or other usability type of features.
Q. Did css-auth predate DeCSS, to your knowledge?
A. Not to my knowledge, no.
Q. Do you know if it -- do you know one way or the other?
A. To my knowledge, css-cat was created -- I'm sorry. I think I need to clarify my answer. I believe css-auth may have existed prior to DeCSS.
Q. How long prior?
A. I don't know the exact amount. It would have been after the authorization code was provided to the Linux DVD developers. I can't remember the gentleman's name, the gentleman you asked about earlier in June, in the June time frame.
Q. And can DeCSS use css-auth?
A. I'm sorry. Can you repeat that question? I didn't follow it.
Q. Now, have you ever used DVD rip?
A. Have I ever used a program called DVD rip?
Q. Yes.
A. No, I don't believe I used a program by that name.
Q. Have you ever used a program named DOD Ripper?
A. I've used a program named DOD Speed Ripper which I believe is the same thing.
Q. And when did you use it?
A. I would have used it I believe prior to my second affidavit. So, it would have been in January, February time frame.
Q. And you made notes of that, did you not, in the notes that you handed over to us, the notes -- excuse me?
A. Yes, I did. And I'm sorry, it was prior to my third declaration in the case.
Q. Right.
Now, tell me what happened when you used DOD Rip?
A. When I used DOD Speed Ripper?
Q. Yes.
A. DOD Speed Ripper is a Windows command line type of operation and it -- it performs some of -- again, it performs some of the functions of the DeCSS program in a manner that's actually similar to css-cat; however, it is my understanding again based on the materials I've reviewed that it has some functional problems in that it doesn't work against all DVD disks.
Q. And did you try that out on other DVDs?
A. I tried it against a disk.
Q. Did you work on a disk that you tried it on?
A. Yes, it worked on a disk I tried it on.
MR. GARBUS: I might have to strike where he says it didn't work on other disks.
THE COURT: Yes, that part of the answer will be stricken.
Q. The DOD Stripper or the DOD Ripper?
MR. GOLD: Was the question did he know?
THE COURT: No, the question was whether this program, whatever it's called, has been around for a long time.
MR GOLD: Your Honor, it's -- I object on relevance.
THE COURT: Mr. Garbus, why is it relevant?
MR. GARBUS: This deals with all the other programs that are out there.
THE COURT: Why are they relevant?
MR. GARBUS: It's relevant to the question of where these alleged illegally-copied films come from and one of the -- I think what we've learned here and, again, I'll go to the sidebar so it's not as if I'm making any statement.
THE COURT: Go ahead. Go ahead.
MR. GARBUS: One of the things we've learned here is that it's very, very difficult between DeCSS and DiVX to create a pirated copy. The point that we make here is that this material DeCSS was primarily constructed for use in a Linux machine.
We believe that the evidence that has just come in through the expert's report and through the logs show conclusively contrary to a little ambivalence of this witness is that that was the purpose of DeCSS and the sole purpose of DeCSS.
THE COURT: How does the preexistence in that and the fact of other decryption software prove what you just said?
MR. GARBUS: It relates to two separate things.
First of all, it relates to the question of harm, but what it also proves is that these other techniques were available and were being used, let's say, to rip off films that DeCSS, that if you wanted to just go copy and pirate films in any way, you had all these other alternatives, that DeCSS was constructed solely, primarily, for use on the Linux machine and what we think the LiViD logs show is that now you may conclude that its piracy or copying, whether or not it's on a Linux machine or not.
You may conclude that that portion of our argument is invalid and that whatever we say about Sony Betamax, etc., is irrelevant and in view of the DMCA.
But that's the argument that we make. If we have a stipulation as to it, we can save a lot of time.
MR. GOLD: Your Honor --
THE COURT: Just a minute, Mr. Gold.
It seems to me, I mean, you have strung together a whole series of different arguments in your response and maybe there's an appropriate relationship that I'm not seeing, but what it sounds like to me is that you are saying transposing this case now into the context, for example, of a patent infringement that it somehow would be a defense to infringement of a patent that other people were doing it first.
Now, why isn't that line of logic perfectly applicable here?
MR. GARBUS: It is correct, if you interpret or it may be correct or is arguably correct that if you interpret the use of the DeCSS for the Linux machine, then -- and you equate that with copying and selling on the street and doing it illegally, we don't. We say that DeCSS was made solely by -- for Linux.
THE COURT: But I understand.
MR. GARBUS: And that DeCSS has no piracy backing or using the Sony Betamax argument has such a minimal piracy value that its fair use application outweighs any infringing quality.
I shouldn't have used "piracy" before. I should have used the word "infringing."
THE COURT: But if I understood the testimony I heard yesterday, even if I take the best case -- the best interpretation of it from your point of view, it took 20 hours of work by people whom you would say are sophisticated to produce the disks we watched briefly yesterday and I can understand that it might well be entirely impractical to suppose that people are going to invest that kind of money and effort to produce a single disk on any scam, but I thought I heard that once you have the decrypted file, you can do with that decrypted file anything you can do with any other file on any other computer in the world.
And, therefore, if somebody was of the mind to be in the business of selling pirated movies, one might very well invest 20 hours of work to pirate "The Jungle Book" or whatever is hot at the moment, and then turn out CD-ROMs at some enormously high rate of speed and, therefore, I just don't understand where the "therefore" is in your argument.
MR. GARBUS: The "therefore" is why spend -- and remember what our witnesses say is that it doesn't take 20 hours but it takes a very substantial multiple of 20 hours -- our argument is that there are many other rippers out there that do it in a very small percentage of the time.
THE COURT: Okay. I can understand that argument.
MR. GARBUS: So, that if you are going to get involved in infringing, if you are interested in making a buck, there are an infinite number of ways to do it at one tenth the cost or the price, or maybe even more -- I can't give you whether you are a Hong Kong pirate -- I don't want to use that pejoratively -- but you just photograph it or you use these other techniques to do it, so that's the argument, whether you accept it or not.
THE COURT: No, I understand, but I want to come to the next point which is back to the question to which the objection is taken. What difference does it make if these others were out there before DeCSS if they are out there now?
MR. GARBUS: You are being asked to infer damage. You are being asked to infer either because you can turn on the TV today and you can allegedly through these file sharing techniques have 30 titles out there, or that two years from now there will be 3,000 titles out there. And your question then is I think why should I permit DeCSS, assuming using that language, using that language roughly, to be out there if it has no other value, if there is no other purpose for it and if it serves no function at all. We have several answers to that which I don't have to belabor here, and again I'm prepared to do it at the bench so that there is no claim that I'm doing it for any audience.
THE COURT: Relax, Mr. Garbus.
MR. GARBUS: So that our position is that DeCSS -- and if I may, since we are having an argument, I will just go into something. The Toronto Star article, which I think we will get into with his notes, other people that tried it, everybody has had -- as far as we know people have had the same experience as Mr. Shamos. They didn't get Mr. Shamos out of the air. They got the best person they could find with the best technical skills they could find, and they got this man in at 2 in the morning, when school was out, to do this, to come in with 20 hours. We have people whose affidavits -- and you will hear from them -- and I don't --
THE COURT: But we are arguing an objection to a question, and the question that I keep putting to you is what difference does it make which came first?
MR. GARBUS: I think that what we would like to prove is that there has been a piracy, illegal copying that existed long before DeCSS ever came around, and what it comes from are all these other technologies, and I'm not going to say, well, if there are ten technologies that rip or pirate, should we stop one that does. I'm certainly not making that argument at all. I am saying that not as a practical matter but as a real matter, that DeCSS -- and I'm telling you -- well, CSS had been cracked in '97. DeCSS had clearly been cracked let's say in October, whatever the dates are. And since then there has been no identifiable harm. You are asked to draw a conclusion based on what is on the TV or other people that they bring in -- you will hear Ms. King who is in the court now give you this wild speculation that we know it's going to happen, we know it's going to happen.
We spent as much time as we could with the movie studios or whatever to show that nobody has made any projections of any harm concerning DeCSS, because they know it's not true. One of the depositions you quashed, if I may just say this, was of Macrovision. Macrovision is a professional group, a security group, and they gave the MPA a report, and that report said basically that DeCSS would not be consumer friendly. And I don't want to misstate the report, but that's the report that we have here today, and I think as I understand it every security company that has looked at DeCSS --
THE COURT: We have gotten way off the point here I think. And even if DeCSS is not consumer friendly, it doesn't answer the question of whether a DVD that somebody is offering on the street for six bucks, which is ultimately traceable to a DeCSS decryption, is consumer friendly.
MR. GARBUS: Absolutely.
THE COURT: Okay. Now --
MR. GARBUS: And.
THE COURT: No. Let's go back to where are you coming from. If what you are telling me is you think you can establish here that there are other technologies out there that will do the same thing, at least the same quality, that are less costly and less difficult for this hypothetical pirate to use, and in consequence there would be no reason for a hypothetical pirate to use DeCSS, that I think is a relevant argument, it's a relevant line of inquiry. I don't know how strong it is, but it's certainly a relevant line of inquiry. If that's where you are going, I will let you try to go there.
Mr. Gold?
MR. GOLD: Your Honor, I know --
THE COURT: I never know what to do when you get halfway out of your chair.
MR. GOLD: I know your Honor knows that most of that speech refers to things that there is no evidence in this record of, and there is a reason for that.
THE COURT: Look, there is enough trouble doing this case given the technology and the feelings. We really don't have to have at each other all the time like this, Mr. Gold.
MR. GOLD: The other point maybe that I would like to make is that there is no evidence in this record that DeCSS was created to make a Linux-based DVD player.
THE COURT: I know that's your argument. I just heard testimony from this witness that his opinion is no way, no how. I understand that. We can't get both sides' whole argument in every paragraph spoken in the trial.
MR. GOLD: I agree. Thank you, your Honor.
THE COURT: Mr. Garbus, do you have anymore questions?
MR. GARBUS: Let me go on and I will try to be brief.
Q. Do you know what an emulator is?
A. An emulator?
Q. Yes.
A. Yes, I do.
Q. And would a Linux-based Windows emulator like wine, would that permit a person using Linux to run a Windows application?
A. I understand that there are several Windows emulators that exist in the Linux environment. However, like all attempts to create Windows emulators, including Sun's commercial product called WABI, creating such a product is in fact, such an emulator is an extremely difficult and often times unsuccessful exercise, such that in almost all cases only a small fraction of programs recreated for Windows ever actually executes successfully on those systems, because there are many, many pieces you must emulate, and it's very difficult to do that right without any help from Microsoft.
Q. Thank you. Now answer my question. Would a Linux-based Windows emulator like wine permit a person using Linux to run a Windows application?
THE COURT: I think he did answer the question.
MR. GOLD: Your Honor?
MR. GARBUS: Okay.
THE COURT: I take the answer to be maybe but not too likely.
Q. Have you ever tried that?
A. I have not used a Linux Windows emulator. I have in the past tried to use Sun's WABI emulator.
Q. Any information you have about whether that's difficult or easy doesn't come from your personal knowledge, is that right?
A. It comes from my fairly significant expertise in the software development environment both in UNIX and Windows. And in previous positions I have held we actually attempted to replace Windows systems with UNIX and tried to use that stuff in the real world, and it just at that time didn't work, and everything I have read in my ongoing reading says that issue has gotten no better.
Q. Let me show you Exhibit BCK.
Do you recognize what this document is, Mr. Schumann?
A. Yes, this is copies of my notes, my note pad.
Q. Getting back now to -- how many meetings have you had with Proskauer concerning this case?
A. By meetings, do you include phone conversations?
Q. Is it fair to say -- and then we will go into the documents themselves -- that you have been assisting them in this case with respect to the analysis of defendants' affidavits, making comments on the affidavits and helping them prepare this case for trial?
A. I believe that's a fair assessment, yes.
Q. And in helping them prepare this case for trial, tell me what you would have done.
A. I have both created and brought to the Court's attention three affidavits in this case. I have worked with them in reviewing affidavits provided by others in this case, in particular defense affidavits, and I have also provided general technical background where I have been asked questions about such things.
Q. And you have also helped them, have you not, in suggesting questions to be asked in court itself by giving them this technical advice.
A. I have on my own initiative -- in reviewing the defense affidavits, I certainly made comments in those affidavits about what I saw as I guess issues or things that did not jibe with my understanding of how things worked is probably not the right word, but where I didn't agree with what was said in those affidavits.
Q. Let's be specific. By the way, who was your prime contact, if anyone, at Proskauer? Was it Mr. Hart?
A. Yeah, my prime contact was Mr. Hart.
Q. How many conversations did you have with Mr. Hart?
A. My guess is that it's dozens of conversations over the period of these six months.
Q. And I suppose you consider yourself as an independent expert even though you are part of the defense team, is that right?
MR. GOLD: Objection.
THE COURT: Can I hear the question again, Steve?
THE COURT: Overruled.
A. I don't understand the context of -- I'm not a legal expert, and I think you are asking me a legal question, and I don't think I'm qualified to answer that.
Q. Let me ask you this. By the way, the copy of the document I have is redacted in certain places, like page SCH01103. I don't know the purpose of the redaction. Let me just see, speak to my colleague and see what the history of that is.
I don't know whether those are documents being withheld from me by the Court. Let's assume in that document 01103 there is a page that's redacted. There are other redactions.
THE COURT: 00103?
MR. GARBUS: 01103.
THE COURT: You can be sure I can't shed any light on it. Mr. Gold?
MR. GOLD: I believe the redactions in this document related to, if you will remember, the witness talked about another project for Proskauer, internal and not to this case, and they were redacted for that reason.
THE COURT: Okay. That mystery is solved. What is next?
Q. Now, these documents in Exhibit BCK, they are in time sequence?
A. They are in approximate time sequence. This notebook, it's not a binder with pages you can't tear out. I added clipped-on notes from other places, so wherever I took a note, I then brought it into this, so it is an approximate time sequence, but I'm sure it's not perfect time sequence.
Q. At page 2 is the name John Gilmore.
THE COURT: Page 2?
MR. GARBUS: I will use the numbers. SCH01094, which is the second page of this package of documents.
Q. Do you know who John Gilmore is?
A. To be honest with you, I don't know why I wrote that name on this particular page.
Q. How about the name Wagner?
A. Again, looking at it now, I'm not sure exactly why I have that name written there.
Q. Aren't those two of the people whose affidavits you read in this case for the defense?
A. It's possible there may be affidavits, but again those names do not ring a big bell to me as I sit here at this moment.
Q. By the way, take a look at page 01104. Do you see that?
A. I'm getting there. Yes.
Q. Now, what these notes indicate is what you were doing in order to prepare for your expert testimony, Mr. Schumann?
A. Again, they were done in the context we discussed earlier with my work with Proskauer in this case.
Q. It indicates the investigation you were making and the research material you were reading?
A. Generally it indicates the items that I saw fit at that time to write down.
Q. And the information that you sought and obtained during this period of time was the information that ultimately forms the opinions that you have testified to here today, is that right?
A. That would depend on the particular opinions.
Q. Now page 01104, do you see a reference to the Toronto Star?
A. Yes.
Q. And can you just read to me what it says under 5:10, after we are told that Bill Hart is likely to be at the Four Seasons and the New York Times has an article. Can you tell me what the next sentence says?
A. Yeah, the next sentence says, "Call Frank Sevelya, ask for a copy of the Toronto Star," and it has a phone number.
Q. Why were you asking for a copy of the Toronto Star?
A. I believe in a conversation I had with Bill Hart on that day or the previous day he mentioned that there was an interesting article in the Toronto Star, had I seen it. I told him, no, I had not, and I don't have a subscription to the Toronto Star, and he said that it might be good for me to take a look at it.
Q. Did he tell you why it was good for you to take a look at it?
A. I'm sure he indicated or I surmised it had some potential relevance to this case, the items discussed might be of interest.
Q. Did he indicate that the article talked about someone using DeCSS and DivX in order to make a copy of a DVD movie?
A. I don't recall if he specifically said that. I'm sure I assumed based on the fact that we were talking about it that it had something to do with this case and thus had something to do with DeCSS.
Q. And did you then get a copy of the Toronto Star article?
A. I presume I did.
Q. And go down to the next place, 2 p.m., Frank Scavella, discussion of the Toronto Star article. Who is Frank Scavella?
A. Frank Scavella is another person at the Proskauer firm.
Q. And what did you and he discuss about the Toronto Star article?
A. My guess is we discussed the essence of that Toronto Star article, and again I don't remember exact details, but I'm sure you have the article.
Q. You bet. Now, do you remember being asked about the Toronto Star article at your deposition?
A. I remember there was a question about the Toronto Star article, yes.
Q. And do you remember putting the Toronto Star article into your affidavit?
A. I believe my affidavit mentions the existence of such an article and may even talk briefly about what it says.
Q. Do you remember the Toronto Star article talks about something using DeCSS and failing to use it a number of times?
A. Again, I would have to look at the detail of the article. I remember that the article describes some difficult in making I don't know if it was DeCSS or the DivX's encoding process work. I remember portions of it surprised me, that I didn't quite understand why they had some of the problems they did.
Q. When you say "had some of the problems they did" -- by the way, prior to the time you saw the Toronto Star article, was that the first time you had heard of anybody trying to use DeCSS and then DivX to watch a DVD movie?
A. That may have been -- may potentially have been the first time I saw such a thing in print, but I mean as someone who is in I guess in this field, it's a pretty obvious thing to do if your desire is to make small sized copies to send around. The combination of those two is not a unique combination.
MR. GOLD: I would like to move to strike the last question and answer because the question misstates the testimony. This witness said the contrary to using the Toronto Star article to form the basis of his opinion. The question --
THE COURT: The question was prior to the time you saw the Toronto Star article was that the first time you heard of anybody trying to use DeCSS and then DivX to watch a DVD movie. Overruled.
Q. Sir?
A. I'm sorry. Could you repeat the question, please.
Q. Yes. Now, your memories was -- the article talked about the difficulties in synchronization of audio and visual aspects of a DVD?
A. Yeah, I believe it had that problem.
Q. The same problem Mr. Shamos spoke about.
A. Yeah, they appear to have encountered the same issue.
Q. And do you know how long the writer of that article said it took to try to reconcile the synchronization of the audio and the visual?
MR. GOLD: Your Honor, I object. This is simply an effort to put into the record things that are clearly hearsay.
THE COURT: Stand up.
MR. GOLD: Sorry.
THE COURT: Look, I don't get the point, Mr. Garbus. I know you would like me to consider the Toronto Star article for the truth of the matter. Unless you find your way around the hearsay rule, I'm not going to do it when it comes in in your questions or otherwise, just as I'm not going to consider for the truth of the matter stuff on the Internet to which you have objected on hearsay grounds. So, I don't know the purpose of this.
MR. GARBUS: The difference is if he formed any opinions in this case on the basis of this information.
THE COURT: You are entitled to it for that purpose, but just be aware that it's not being considered for the truth.
MR. GARBUS: That's all I'm asking for.
Q. Now, did that article tell you anything about the ability to use or help you form your opinion about the use of DeCSS and DivX as a way of pirating films?
MR. GOLD: Your Honor?
THE COURT: Mr. Gold?
MR. GOLD: I'm not sure the witness gave an opinion on that matter.
MR. GARBUS: I will withdraw the question.
Q. Now, going to page SCH01105, the Bill Hart discussion and then it says "homework." Who was assigning the homework?
A. "Homework" was my own term I guess as a result of the conversation here, the areas that needed further exploration. It's not an assignment in the sense I had it in grade school. It's my own internal term I use for this is what is left to do.
Q. By the way, have you ever gone to graduate school?
A. I have not, no.
Q. Have you ever written any books on any subject?
A. No, I have not.
Q. Have you ever written any articles on any subject?
A. No, I have not.
Q. Now, you did three affidavits in this case, is that right?
A. Yes, that's correct.
Q. Now, with respect to the first affidavit, how many drafts of that affidavit were done?
A. Full drafts? I don't recall exactly. Maybe three or four.
Q. Tell me what that process was. By the way, was this with Mr. Hart?
A. This was primarily with Mr. Hart. There may have been occasionally other participants from Proskauer, but as I testified my primary interface was with Mr. Hart.
The process by which that first affidavit was written was that after I had been brought into this case we spent a considerable period of time on a conference call walking through the issues in this case, in particular as they were I guess of interest to Proskauer at that point in time.
So, Bill would provide -- essentially they would ask me a series of questions and we had essentially kind of a question and answer session where I went through my understanding of what I understood about the issues of the case at that time.
Q. And some of those questions related to the work that you had done when you were working for and being paid by the MPAA in November and December, is that right?
A. Some of the questions related to that matter. I don't believe we discussed the report, if that's what you're trying to get at. I mean we clearly discussed the things I had learned in that process, but I don't think there was any specific discussion of the report.
Q. Did Mr. Hart know you had prepared a report?
A. I know he knew that I had done work with the MPAA. I don't know if he knew I had done such a report, no.
Q. To your knowledge, when for the first time did Proskauer learn that you had done this report?
A. Again, I have no knowledge as to when they may have learned that I did that report.
Q. When for the first time did anybody at Proskauer, if ever, discuss that report with you? Let me focus you a little, if I can.
A. Yes, please.
Q. Was it after we first asked for it and demanded it at your first deposition?
A. I would be surprised if it had been that late.
Q. Was it after we had demanded the documents from you prior to the deposition?
A. I'm sorry. I don't follow the timing of that. I don't remember getting any request for documents other than starting at the deposition.
Q. Had Proskauer, prior to the time you came to the deposition, ever shown you a demand for documents that we had made?
A. Prior to the first deposition?
Q. Yes.
A. Not that I specifically recall, no.
Q. Now, with respect to your first affidavit, how long did it take to go through these three or four drafts?
A. I believe we completed that first affidavit in it might be a week or so. Again, I don't remember the exact timing.
Q. Did you ever suggest to them that it might -- by the way, by that time had you seen some of the pleadings in the case?
A. By pleadings, do you mean official court documents?
Q. Yes.
A. No, I never saw any of that, certainly not prior, not prior to my first deposition, no.
Q. Prior to the time you did your first affidavit, had you ever seen any of the pleadings or documents in the case?
A. I'm sorry. I misspoke. I meant my first affidavit, not my first deposition.
Q. So, as I understand it, prior to the time you did the first affidavit you don't remember or did not see any pleadings or documents, but you did see it or you may have seen it prior to your first deposition. Is that right?
A. It's possible. If they were, they were -- I mean if I saw anything, it was official public record type of pleadings other than drafts of my own materials.
Q. And tell me the changes, if you can, that the drafts of your first affidavit went through, the three drafts?
A. The changes, as you would expect, as they went through the drafts the changes became less and less. The first draft was as a result of the conversation with Bill Hart, so it was a very rough draft because Bill Hart, at the time I wasn't in a position to take the time to write, so he wrote down what he had understood from our discussion on the phone, and that is what I would consider the first draft, and that was, of course, extremely rough. It had many things that were not completely accurate as one would expect from an initial discussion over the phone, so that the first draft was pretty rough.
Q. Tell me what was inaccurate, if you can remember.
A. I'm sorry. Unless can you show me the draft, I can't tell you exactly what it was, but I remember we did extensive edits to the drafts.
MR. GARBUS: May I see those drafts, Mr. Gold?
We never got them. We have been asking for them.
MR. GOLD: I'm told that the drafts are not in the documents that we identified or in the 1,000 or so documents that Mr. Garbus identified as his documents in the case. And I am also told there are no drafts which is why they were not in production. There are no drafts that exist.
THE COURT: So the short answer is there are not any.
MR. GARBUS: There are none?
THE COURT: There are none anymore. That's what he said.
Q. What happened to the drafts, Mr. Schumann. Do you know?
A. I know that I certainly would have cleaned them up on my side, because that was old. That's not the right word, but I have done a considerable number of patents and such, and I have learned to get rid of the old stuff that is not reflective of what the true meaning is in any case, so I pretty regularly clean up after I work on that type of material.
Q. Is this on your computer?
A. No, these drafts were done all on -- at least from my side, they were essentially all done on paper, certainly that first draft or that first --
MR. GOLD: Obviously my hearing isn't good enough, and I didn't pick up the messages coming from the far end of our table. We do not know as we sit here without Mr. Hart that the drafts do not exist in our office. So, I misspoke. I didn't hear that. We will look, and if the drafts exist, we will bring them in, we will fax them over to your place tonight.
THE COURT: Okay.
MR. GARBUS: I just want to indicate for the record we asked for those on May 15.
THE COURT: Is that right, Mr. Gold?
MR. GOLD: I do not know. Is that the May 5 deposition transcript that you are talking about?
THE COURT: He said May 15.
MR. GARBUS: I will let Mr. Hernstadt speak.
MR. HERNSTADT: During the deposition we agreed that in addition to making demands on the record in the deposition, I would also write a letter at the end of the deposition so that they could start to find the documents demanded during the deposition, if they existed, before getting the deposition transcript back. I sent a letter on May 15 asking for all these documents in his files which would include obviously any drafts.
THE COURT: So, you were waving at Mr. Schumann.
MR. HERNSTADT: Yes.
THE COURT: Mr. Schumann just told us they are not in his file.
MR. GOLD: Not in his file.
MR. HERNSTADT: We asked for all the reports and all the backup on the report.
THE COURT: Look for the documents. If you have them, you have no objection to producing them I understood.
MR. GOLD: Well, your Honor --
THE COURT: If you do, you do. You will just tell me.
MR. GOLD: The affidavits have not been discussed in his direct. We haven't offered the affidavits into evidence in this case. I don't understand the point or why they are relevant. So I do have that problem. We are going into so many avenues that --
THE COURT: What's the point of this, Mr. Garbus? Mr. Garbus, what is the point of this?
MR. GARBUS: I want to see the variance between his affidavits and the drafts, if there is any.
THE COURT: That part I figured out. But what is the relevance of that to your cross-examination based on his direct?
MR. GARBUS: I would like to see what he said about whether Linux -- it really gets to what the issues are in the case, and it would get to the question of what his conclusions were, his preliminary conclusions before he wrote the draft interim report and then the other report on Linux and why DeCSS was created. It's the background for that report based on the logs I presume.
THE COURT: All right. Mr. Gold, you look for and see if you have a problem about producing them.
MR. GOLD: I certainly will, your Honor.
THE COURT: If there is going to be a problem about producing them, I certainly am going to want to know exactly what the state of the record is as to who asked for what when, because there have been a lot of general statements made on both sides about things like that, and they have not always been precisely accurate upon inspection. I don't mean about this particular group of documents but I mean in general. Let's proceed.
Q. Now, do you know whether or not in October 1999 Linux did or did not support UDF? Do you know what UDF is?
A. You're referring to the UDF file system?
Q. Yes.
A. Yes, I'm aware of what UDF is.
Q. So any work on a Linux DVD player would also have to be on a Windows system at least until Linux could support UDF, is that right?
MR. GOLD: Your Honor, I object to that.
THE COURT: Ground?
MR. GOLD: Compound, calls for speculation, no foundation. Those are the three that come to my mind.
THE COURT: Mr. Garbus?
MR. GARBUS: Let me see if I can break it down.
Q. Did Linux support UDF?
A. To my understanding I would have to look in detail, but the development versions of Linux absolutely support UDF in that time frame.
THE COURT: This is October of '99?
THE WITNESS: Yes, that's correct.
Q. In July?
THE COURT: What year?
MR. GARBUS: '99.
A. They may have been in the early phases of support of UDF. Again, I don't know exactly when UDF was available on Linux, but it was not to my recollection a subject of great discussion on the logs.
Also, in order to read enough of the DVD you need a very, very small piece of UDF to be functional in order to read data off the DVD disk.
Q. Now, you have never participated in a group development of any Linux application, is that correct?
A. That is correct.
Q. So everything you know about developing a Linux application in November and December of 1999 you have learned from the logs, is that right?
A. Everything about the specific details of the sequence of events that took place during that time I learned from the logs. In terms of what it takes to create a development program to create operating systems and create applications, that knowledge would have been based on my extensive experience in software development both as a developer and as a manager of software development efforts.
THE COURT: We will take a 15 minute break here. Excuse me.
THE COURT: All right. Let's proceed, please.
MR. GARBUS: Could we approach the bench on something small again? Can we have the same stipulation that we had before, basically, namely that there is no evidence or proof or claim that anybody ever downloaded anything from 2600.com and there is no evidence that anyone ever used anything from 2600.com to make any illegal copy or transmission? I have stated it perhaps not as artfully as I might have, but I think that's the --
THE COURT: The key missing word being "direct evidence" I take it.
MR. GARBUS: Direct or indirect. We can try it both ways. We can try it direct and then indirect.
THE COURT: They wouldn't give you the "indirect" before.
MR. GARBUS: I will take the direct and then we'll move on.
THE COURT: Mr. Gold?
MR. GOLD: No, your Honor, we would not like to stipulate to that.
MR. GARBUS: Even as to the direct?
THE COURT: Even as to direct evidence?
MR. GOLD: That's right, your Honor.
THE COURT: Is this because you would not like to do it or because you really think you have some evidence?
MR. GOLD: Because we really think we have some evidence.
THE COURT: Apart from Mr. Shamos.
MR. GARBUS: Other than the plaintiffs' witnesses.
THE COURT: Look, I'm not going to take the time to do this right now.
MR. GOLD: Your Honor, this does raise for the third or fourth time an issue about the fact that your order related to Mr. Corley's computer has not been complied with by defendants.
THE COURT: We are not going to have that right now. You have a witness on the stand. Go ahead, Mr. Garbus.
Q. You have been in the security business for how many years?
A. Since the beginning of my work on the DivX, the digital video express project.
Q. You have heard of Macrovision?
A. Yes, I have.
Q. What is Macrovision?
A. Macrovision is a corporation in California that is the creator of what is known as the Macrovision copy protection system which is a system that works on analog video and provides an effective measure against VCR copies of the analog video signals.
Q. And were you at any time shown any reports that Macrovision did with respect to the effect of DeCSS hacks on the movie industry?
A. No, I have seen no such report.
Q. Have you ever had any conversations with anybody at Macrovision in your life?
A. I have had conversations with people at Macrovision, yes.
Q. Have you had a conversation within the last seven months with anybody from Macrovision?
A. Yes, I have.
Q. And have you had any conversations with them concerning any aspect of this case?
A. I have not.
Q. Are they one of the most respected security firms in the country, in your knowledge?
MR. GOLD: I object, your Honor. This is --
THE COURT: Sustained.
Q. Now, prior to being contacted by the MPA, you had no involvement in any way with LiViD, is that right?
A. That's correct.
Q. You never looked at the LiViD group on the website?
A. No, I don't ever recall. I have no reason to go there and I don't recall ever going there.
Q. You never used the Linux software?
A. I have used the Linux software but I haven't been involved in the development efforts, no.
Q. So everything you have learned about Linux or how Linux has been developed or Linux's development of the DVD player you have learned since the MPA fill you in in the case?
THE COURT: The question is compound. If you really care about the different parts, you better break it down.
Q. Everything you have learned about the development of the Linux DVD player you have learned since the MPA pulled you into the case?
A. Yes, all the details related to the development of the Linux DVD player I have learned since then, yes.
Q. And you know nothing about what went on prior to November, other than what you read in these logs?
A. That's correct. My knowledge is based on my, for that period of time is based on my analysis of what was in the logs provided to me.
Q. And one of the things you would agree, would you not, at least is that those logs show a huge effort to make a DVD player for Linux, is that right?
A. Those logs show that there was a dedicated group, in fact two separate groups who were working on trying to create DVD players for Linux, yes, that's correct.
Q. Do you know how many people in those groups?
A. I don't have an exact count. There were I would estimate again dozens of people across those two groups.
Q. Now, getting back just a bit to your note, and I believe that SCH01105 -- and I will try to do this in a very quick period of time. I don't want to take you through all these notes laboriously -- the first homework is "strength of DeCSS." What were you supposed to do with respect to your homework?
A. There was discussion about DeCSS, how it works and what it does. Again, I don't remember specifically what this reference is to. I believe this was relative to the logs, to the log files at that point in time.
Q. Look at 2A, "make case that this exists without CSS encryption." As I understand it, you were to make that case?
A. Again, these are my notes to myself, and so part of the discussion was that in that discussion we had brought up or I had brought up that CSS is not necessary to make a DVD player, and in fact in many cases having CSS or having to deal with the encryption gets in the way of making the player, and so what I pointed out at that time in the discussion was that there was discussion within these logs about the fact that, you know, you should spend a lot less time worrying how to break CSS and spend a lot more time on how to make a functional player, because the player is really the big problem in the development effort.
Q. And I gather you did not look at all of the LiViD logs that were involved in developing the functional player rather than DeCSS.
A. Actually I think I very briefly referenced in response to one of your earlier questions that I had after I wrote my report actually gone and looked at the electronic copies of these logs, and I did that at the same time I would have done these exercises, specifically because I was looking for things I knew were there, and I went and retrieved the electronic versions and searched through those, looking for specific references, and at that time that reinforced my earlier impression based on this that these were in fact representative samples related to the CSS.
Q. Did you make copies of any of that electronic material?
A. I don't recall if I made copies. I found when I looked them up and then I went back to the original paper where appropriate and made copies of these papers.
Q. I'm not clear. With respect to the other documents that you looked at other than these logs --
A. Yes.
Q. -- other LiViD documents, did you ever print those out so that they became paper?
A. Again, it's possible that I printed out selections. I don't know if I printed out -- when I found pages that were relevant, I don't know if I printed them out or if I went back to the physical copies I had in my office, which are represented by these.
Q. So, all the pieces of paper that you have are represented there in that pile in front of you, which is Plaintiff's Exhibit 9?
A. That's correct. I don't recall finding any references in my electronic search of these logs that I couldn't find also in these -- in these printed form.
Q. Now, going down again to 01105, I see the name Teretsky, who is that?
A. Teretsky is, I believe, someone who submitted an affidavit for the defense in this case.
Q. And what were you asked to do with respect to Teretsky's affidavit?
A. I was provided Mr. Teretsky's affidavit prior to my deposition and I reviewed that and made, again, as I discussed earlier, I made comments as I reviewed through that -- through that deposition.
Q. And prior to the deposition --
A. Excuse me -- affidavit.
Q. Prior to the deposition, did you tell Mr. Harmon or anybody at Proskauer what you found to be accurate or inaccurate in the Teretsky affidavit?
A. Yeah, I believe we discussed the Teretsky affidavit prior to my deposition.
Q. And with respect to the Stevenson affidavit, which is referred to in the next -- were you asked by the Proskauer people to determine what was accurate or inaccurate in the Stevenson affidavit?
A. Again, it was -- I was provided these materials to review and I made my own comments about them and then we discussed them together.
Q. You say you made your own comments, but you gave your comments to the Proskauer people?
A. I gave -- I gave some of my comments to the Proskauer people. In fact, up until the time that I provided the materials per the copies of my exact logs, the Proskauer people did not have all of my comments.
Q. And did you give them your comments orally or in written documents?
A. I provided all my comments, almost the vast majority of all of my interactions with the Proskauer firm orally over telephone conferences.
Q. Did you ever give them any written analyses or any written comments on any of defendant's documents?
A. No, not that I am aware of, other than obviously these notes that you have.
Q. Now, at 4, you say right blurb, what is a blurb in that context?
A. A blurb is a paragraph or a fragment of a larger thing.
Q. By that you mean a paragraph in the affidavit that you were going to write?
A. Yeah, this was partially done in the context of building the -- I don't know if it was the second, I guess the third affidavit in this case.
Q. And I will ask you to look at the next page, 6, pull up deposition testimony, can you tell me what that relates to?
A. I, again, I would -- I think I may have miswritten here. I still haven't gotten all these legal terms down. This almost certainly refers to affidavit testimony.
THE COURT: Which is the legal term, "blurb" or "pull up"?
THE WITNESS: No, the deposition versus affidavit problem.
THE COURT: Thank you.
Q. The FF, what does that refer to? Is that Franklin Fisher?
A. I think "fast forward."
THE COURT: Another legal term.
MR. GARBUS: It shows me not to ask the question that I don't know the answer.
Q. Paragraph 8, we are talking about Stevenson again?
A. That's correct. I think, if I remember correctly, I'd have to look, but I believe Stevenson discussed the DiVX Kodex and discussed that future Kodex will be even better than that, which is not surprising to me.
Q. By the way, have you ever looked simultaneously at a DVD and a film that has been decypted through DeCSS?
A. Have I ever visually looked at them side by side?
Q. Yes.
A. No, I have not.
Q. Do you know whether Mr. Shamos ever had?
A. I have no knowledge.
Q. Did you or Mr. Shamos ever have a conversation about that?
A. We did not.
Q. Do you know why they retained Mr. Shamos after they had you as their expert?
A. I'm sorry. I can't speculate as to why they did things.
Q. On page 01111, you talk about the Power Ripper?
A. Yes.
Q. Have you ever used that?
A. No, I have not personally used Power Ripper.
Q. You then say, readdvd, have you ever been used that?
A. No.
Q. You say, and I'm sorry if I'm going back, you say css-cat, have you used that?
A. Yes, I have used CSS cats -- take that back. I don't know if I used it. I have reviewed the source code of css-cat.
Q. But you don't know whether or not you ever applied it?
A. I don't believe I did. I may have, but I don't believe I did.
Q. And css-auth?
A. Again, same -- same thing. I have looked at the source code and I'm very comfortable with what it does based on my review.
Q. And css-descramble, have you ever used that?
A. Css-descramble is unusable. It's a fragment of code.
Q. And after that, you have Teretsky?
A. Are you referring to anonymous source.C?
Q. No, above that where it says CSS-descramble C, is that "Teretsky" written in?
A. Yes, that's Teretsky; yes.
Q. And Teretsky is one of the defendant's witnesses, you understand?
A. That's correct, or actually I have no idea if he's going to be a witness. I know he submitted an affidavit in this case.
Q. Now, going to the next page, at the bottom, 5/31, 7:15 a.m., review of what is -- is that "disks" or "declarations" by defendant?
A. Probably declarations by defense.
Q. So, who asked you to review those?
A. I reviewed those, I believe. Again, I'd have to look at dates, but I probably reviewed them prior to going into my deposition.
Q. Now, up at the top, there's a list. It may be a list of movies. I recognize Malcolm X in "Dead Man Walking." What was that list for?
A. That is a list, a partial list of disks that I found reference to either in the -- I believe this was in my search of the LiViD logs referencing disks that the Linux DVD people had identified as not having CSS encryption and, therefore, could be used in the development of a DVD player.
Q. How could those not have a CSS encryption?
A. CSS is a -- CSS is a system that is layered on top of the basic DVD spec, O.K. So, it's very possible, in fact, happens frequently that DVD applications and DVD disks are created that do not use CSS.
Q. And what happens to those disks that do not use CSS, can they be played?
A. Absolutely. They're completely normal, functional DVDs, except for whatever reason the owners of that content or the publishers of that content have chosen not to protect them with CSS.
Q. And do you have any idea why they were not protected?
A. Again, I couldn't possibly speculate on what would cause them to make that choice, other than there may be a licensing fee paid for CSS, I don't know.
Q. Now, just again getting to the next page and we can do this quickly, I see the name -- we are now 01113. I see the name Teretsky, Wagner, Stevenson, Pavolich, and then DeBona. This is your analysis, is it not, where you disagree with or is it inaccurate in each one of those affidavits?
A. This is a copy of notes I made as I read through those -- through those affidavits or it's as I wrote notes on a note pad and on this page as well as I think the pages that follow are those notes.
Q. And you gave this information to Proskauer?
A. No, as I previously testified, I discussed some of this information verbally with Proskauer, but they did not receive these notes until such time as I produced this document per your firm's request.
Q. Now, do you know who the name "Freeze" is at page 01114?
A. Could you point me -- oh, I see.
Q. Slightly below the middle.
A. Right. Again, I would assume this was one of the affidavits.
Q. And Moblin, is that Professor Moblin from Columbia?
A. I would assume so; yes.
Q. And on the next page, Samuelson?
A. Same. Again, this was a list of my notes of my review of the affidavits.
Q. Do you know if anyone other than you was providing technical assistance to Proskauer or the MPAA during this period?
A. Outside of the Proskauer firm? Other than what I've learned in the last day or two, no.
Q. About Shamos coming in in mid-June?
A. I was not aware of Mr. Shamos until -- not aware of him until this trial began.
Q. So, it was your understanding, was it not, sir, from the time that you were first retained by Proskauer up until the trial began that you were the person providing the technical information for the defense of this case?
A. I knew that I was a person providing technical information. I have no reason to believe one way or another whether I was the only one.
Q. Now, in addition to Mr. Hart, you also spoke to a man named Mike Hervis, who's sitting at the end of the table?
A. I have spoken with Mr. Hervis on occasion; yes.
Q. And you've spoken to Mr. Kulwich?
A. I have occasionally, but I believe I've spoken with him on occasion.
Q. And Jeff Carpenter?
A. That's possible. Again, I know that there have been a variety of individuals who I have on occasion spoken with at the firm.
Q. How many people at Proskauer?
A. I may have talked -- I don't know, up to 10 or 12 people total.
Q. And how many people at the MPAA besides Mark Litvak?
THE COURT: Mr. Garbus, if the purpose of all this is to inform the trier of fact that a witness from Proskauer is paying hundreds of dollars an hour consulted extensively with him in preparation for testimony, I assume it. You don't have to prove it.
MR. GARBUS: That's not what I was trying to show.
THE COURT: All right.
MR. GARBUS: I was trying to show something else which I'm prepared to tell you, namely, he was not an expert witness, that he was part of the defense team, which I think is obvious.
If I've made the point, I'll ask no further questions.
THE COURT: If those categories were mutually exclusive, we would have no expert testimony in the courts.
MR. GARBUS: I think maybe we can talk about that some other time.
THE COURT: I think so.
You should meet the fellow I see all the time who tells me when you ask him what he does for a living, he tells you he's the king of the courthouse orthopedists, hasn't seen a patient in 25 years.
Anything else for this witness, Mr. Garbus?
MR. GARBUS: No.
THE COURT: All right. Thank you.
Any redirect?
MR GOLD: Yes, your Honor.
Q. Turning to the exhibit you've been discussing with Mr. Garbus, I think it's Defendant's BCK, turning to 0111, there is a list of movies on that page that you talked to Mr. Garbus about.
A. I don't even know if I talked to him about -- or I talked to Mr. Garbus about?
Q. You talked to Mr. Garbus during his cross?
A. Oh, yes; correct.
Q. Isn't it true that this list of movies came from the LiViD logs that you were reading?
A. Yeah, if I know that this was as a result of looking through those logs to find references to movies; yes.
Q. And do you know whether or not these DVDs were unencrypted?
A. I have not personally looked at these DVDs, but based on the encryption of logs, it's my belief that they are. I know that Video Essentials, Video Essentials that I know is unencrypted.
Q. In drawing the conclusions that you testified to during my direct examination earlier today, did you in any way rely on the Toronto Star article or the Linux world article printed on CNN.com, those are the two articles that Mr. Garbus was talking about?
A. Are you talking in relationship to my conclusions about the source and nature of and purpose of the DeCSS development of DeCSS?
Q. Yes.
A. No, my assessment of the source and nature of DeCSS is entirely based on my analysis of the development logs and I believe I wrote about that in my assessment that I completed for the MPA.
Q. Did you rely on those documents for anything else that you testified to this morning? Did you rely on them for any other opinion that you gave here this morning?
A. I'm sure I used those documents to form the basis of my understanding of many of obviously details of how CSS and the Linux development and all of that, so to try -- those documents certainly form the basis of it.
MR. GOLD: Thank you.
MR. GARBUS: I move the documents into evidence. Hasn't he just been referring to, or did I miss it?
THE COURT: Well, it all depends what the antecedent of the phrase "those documents" is. I understood the testimony to be that the antecedent was the development logs.
MR. GARBUS: I thought the antecedent was -- let me ask a question.
THE COURT: Recross? Go ahead and ask.
Q. Did you at any time look at anything other than the development logs or have any conversations to determine whether or not Johansen had anything to do with the creation of DeCSS like the Toronto Star that's referred to in your notes or the CNN news article?
A. In -- I'm sorry. Could you clarify for me in reference to which time frame and to which --
Q. Did you ever at any time ever look at the Toronto Star or the CNN article, which I believe you referred to in your deposition, to determine whether or not the role that LiViD people played in the construction of DeCSS?
MR GOLD: Your Honor, I --
THE COURT: He has not finished the question.
MR GOLD: I thought that he had.
THE COURT: He hasn't finished.
MR GOLD: I'm sorry.
MR. GARBUS: I think I had.
THE COURT: Well, the last phrase of your question was: "To determine whether or not the role that LiViD people played in the construction of DeCSS," whether or not what?
MR. GARBUS: Let me phrase the question again.
Q. Did you ever look at the Toronto Star article to form the basis for any part of any opinion that you have rendered in this case on any matter?
A. I don't remember. I know I had some opinions on some matters. I don't remember whether they were objected to or not, but I certainly know that the Toronto Star article would have caused me to -- to have an opinion relative to this case.
Q. Good.
Now, let's ask the same thing -- do you remember, by the way --
MR. GARBUS: May I approach the bench?
THE COURT: You may.
Q. Let me show you, Mr. Schumann, did reading that article, which you referred to in your deposition in any way form the basis for any information that ultimately results in any opinion on any aspect of this case?
THE COURT: What article were you referring to now?
MR. GARBUS: Plaintiff's Exhibit, what is the number?
THE WITNESS: 78.
MR GOLD: Your Honor, I'm not sure I understand the question. Does he mean opinion rendered in this court put on the record?
THE COURT: I hope so.
MR. GARBUS: I hope so.
MR GOLD: I think that means yes.
Q. Sir?
A. I don't -- I think.
Q. I'm saying whether you agree or disagree --
A. I understand. I understand. I believe I have seen this article. I have certainly heard claims similar to this article. I do not at all understand the claims in this article based on all of my knowledge and understanding of the case so far and so, I don't -- while I have seen this article, it has some impact on my or changes my belief in or -- in my opinions about the source or the meaning of DeCSS relative to the Linux DVD.
Q. It is fair to say and I really want to be accurate, that you may have read the article, you did read the article, but that you disagree with it?
MR GOLD: Your Honor, that's not an accurate characterization. It's a deliberate mischaracterization.
THE COURT: I don't care whether it's deliberate or inadvertent. I don't think we need to get into that. All I know it is remarkably beyond the scope of the redirect and the objection is sustained.
MR. GARBUS: I'll move into evidence -- it was my attempt to lay a foundation for the two documents.
I'll move into evidence the Toronto Star.
THE COURT: What Exhibit is that?
MR. GARBUS: Which is referred to also in his affidavit.
THE COURT: What is the Exhibit, please? Is there an objection, Mr. Gold?
MR GOLD: Yes. There is objection on hearsay grounds. There's objection on --
THE COURT: Why isn't it hearsay, Mr. Garbus? Mr. Garbus, why isn't it hearsay?
MR. GARBUS: It's information that he used to form his opinion.
MR. GOLD: The witness has not testified --
THE COURT: I haven't heard any such thing.
Sustained.
MR. GOLD: Thank you, your Honor.
MR. GARBUS: Just one last question.
Q. I show you the affidavit dated June 1, 2000 and I direct your attention to paragraph 10.
THE COURT: What Exhibit is that, please? What Exhibit is that, please?
MR. GARBUS: AD.
THE COURT: All right.
MR. GARBUS: Shall I get a copy for the Court?
THE COURT: Please.
MR GOLD: Your Honor, this affidavit was not referred to in direct. The witness -- I see no reason to mark it as an exhibit. And it's beyond the --
THE COURT: It's already marked as an exhibit. It's not received in evidence.
MR GOLD: That's what I was --
THE COURT: The question hasn't been completed. When I hear the question, I will find out whether it's within the scope of the redirect. So far, the question ends with: I show you this exhibit and I invite your attention to paragraph 10, or words to that effect.
Q. Does that refresh your recollection that you use the information in that article indicating how a computer user can take advantage of a DiVX compression technology in combination with DeCSS and whether that formed the basis for any opinion that you rendered in this court today?
A. I'm, again, I'm sorry, but without -- there have been numerous cases where I would have had an opinion had I been allowed to answer and without you pointing me at a specific opinion on the record, I don't believe I can answer that question.
MR. GARBUS: Your Honor, at this point in time, we would move the deposition of Mr. Schumann designated and move it into evidence. I understood that was the practice that we had namely that after the completion of the testimony, we would put in the appropriate parts.
THE COURT: Mr. Gold?
MR GOLD: Can I have one second?
THE COURT: I'm sorry. Were you finished, Mr. Garbus? I thought you had finished.
MR. GOLD: Your Honor, can I understand the purpose for which this is being offered into evidence?
MR. GARBUS: I thought we had an understanding that with respect, and I thought we then designated all the depositions with the understanding that if we did that, we would not have to go through the laborious questions and answers that we also went through in the deposition.
THE COURT: My understanding was close, but not exactly the same as what you said.
What I understood the proposal was that you could designate parts of the deposition to supplement and I think what Mr. Gold is rising to is that you're now proposing simply to throw in his entire deposition.
MR. GARBUS: No, we have a deposition with designated portions.
THE COURT: You don't need to do that now. The understanding was you will cross-designate and subject to whatever objections you have on the record, it will come in.
MR. GARBUS: Thank you.
THE COURT: All right. Do you have anything else for the witness, Mr. Garbus?
MR. GARBUS: I do not.
THE COURT: Mr. Gold, anything else for the witness?
MR GOLD: No, your Honor.
THE COURT: You are excused, Mr. Schumann. Thank you.
THE WITNESS: Thank you, your Honor.
THE COURT: Next witness, Mr. Gold?
MR. HERNSTADT: Your Honor, could we approach the bench for a sidebar?
THE COURT: There's no jury.
MR. HERNSTADT: It's something that we'd like to address out of the hearing of the --
MR. HERNSTADT: We'd like to raise again the question of Mr. Johansen. He's here. He's going back to Norway on Thursday, this time, not Tuesday.
Not only -- well, there is a question of whether we are going to use him as a witness and we've mentioned that that was something we were considering. At this point, he's also a rebuttal witness.
He has, as Mr. Stevenson pointed out, direct personal knowledge of why DeCSS was posted. We would ask him questions on exactly two areas that are connected, DeCSS and Linux and the connection between the two. And that's it.
There's been a number of suppositions, the e-mails, the postings with his name on it have been relied upon by the expert witness. He can say, this is what happened. This is not what happened. This is true. This is not true. You'll have the direct, firsthand evidence.
I can tell you, I've also spoken to Mr. Johansen for a total of less than three minutes. That's what --
THE COURT: What do you want to do? Do you want to call him out of turn?
MR. HERNSTADT: I'd like to call him out of turn.
THE COURT: Mr. Gold?
MR. GOLD: Call him out of turn?
MR. HERNSTADT: We could do him now.
MR GOLD: First of all, we had, I believe, a motion which said that, again, this came -- this has been going in and out of various lists.
MR. SIMS: And he was not on the list that was given to your Honor.
THE COURT: I'm glad we are having a sidebar. Shall I pass the microphone around?
MR GOLD: I'm sorry.
This wasn't on the list given to your Honor. Before that, we've had a lot of in and outs about it. I think he shouldn't be allowed to testify as a witness. I think this is improper game play; however, if your Honor is going to allow him to testify as a witness, I think we would like to take his deposition on Thursday or Friday, more preferable.
THE COURT: When is he supposed to go back?
MR. GOLD: Why can't he go back on Saturday or Sunday?
MR. HERNSTADT: He's not in our control. This is a 16 or 17-year-old kid. He's here with his dad.
MR GOLD: He came here to support your cause and at a convention, he's making speeches with his father for a week. If he wants to support your cause, let him stay until Monday. We had lots of time to depose him before. You brought him two or three times now.
I just think if this -- I really think that we ought to depose him. I wouldn't call it exactly leisure, but we not go -- I'll do it during the weekend, if I you prefer. I think the gentleman can stay a few extra days.
MR. HERNSTADT: Well, two things. He's not just a witness on direct. He's a rebuttal witness. He can respond and contradict certain things testified to by Mr. Schumann.
Second, he's not in our control. He has made certain statements, but that's his voluntary thing.
And third, we're arranging our schedule in mid-week to take Mr. Burns' deposition so as not to require him to stay through the weekend. We are told he's due back in Pittsburgh. I don't think there's any reason to expect Mr. Johansen --
MR. GOLD: You insisted on his being a witness.
MR. HERNSTADT: And I don't think unreasonably.
MR. GOLD: I'm not insisting on this gentleman being a witness.
MR. HERNSTADT: No, but you're insisting on his deposition.
MR GOLD: Well, only because he's going to be a witness.
MR. HERNSTADT: We can sit down, as the judge suggested, we can sit down and you can have a conversation with him. I'm telling you, I'm representing right now that I'm going to ask him an extremely small area of questions and you'll have an opportunity to ask him all of that.
MR. COOPER: May we just have a moment?
THE COURT: Yes.
MR GOLD: The major point we are raising, your Honor, is that the -- if the gentleman is going to be a witness, we would like to depose him with a little time to think about it, a little time to get ready. He's going to make some technical statements here. It's not going to be: Was he in a certain bar at 9 o'clock on a Tuesday night? And we need a little time to get ready for it. We are otherwise occupied.
This has been going on for a long time and he's been here vacationing and helping to support this cause. We only ask that he stay another couple of days in support of the cause, give us a chance to chat with him, and if we have to split his hotel bill with you, we will.
MR. HERNSTADT: As a matter of fact, while you were caucusing, I asked Ms. Gross to ask his father if it's financial considerations were not a consideration, if he could stay, and his father says that his son is happy to testify, but the father has to go back to work. The boy is 17 and can't stay here on his own.
MR. GOLD: Excuse me. He's Scandinavian?
MR. HERNSTADT: The boy is 17.
MR GOLD: He's Scandinavian? He's probably a grandfather by now.
THE COURT: Mr. Gold, that was really out of order.
MR GOLD: A weak attempt at humor.
MR. HERNSTADT: So, we asked his father if that were possible, if the added additional expenses were somehow arranged for, if he could stay, and the father said, no, he has to go back to work.
THE COURT: Look, is it true, Mr. Hernstadt, first of all, that he has been on and off your witness list at various points?
MR. HERNSTADT: It's true that I have been telling the plaintiffs that we are considering calling him. We don't know if he's coming. When we found out that he was coming, we didn't know if we could get him. I have never spoken to him until I met him the first day of the trial. He's not easy to get ahold of and he's certainly not in our control.
THE COURT: And he's going to say, what, exactly? Bottom line?
MR. HERNSTADT: Bottom line, he's going to say that he did DeCSS, he and two other people did DeCSS in order to help the Linux DVD player. And he's going to say that he didn't hate Linux and he doesn't have any problems with Linux and he's going to say that the reason that DeCSS is a Window executable is because Linux did not at that time support the UDF file system, which is the DVD file system, so that if it were a Linux executable, you couldn't test, it wouldn't run.
In other words, you couldn't run DVD files on Linux and that's why it was a Window executable, at first. That's what he's going to say.
MR GOLD: Your Honor, as we've said in our motions in limine and in other places, the fact that a few good people use the DeCSS, if that is true, does not excuse the charge or the claim we are making for the unlawful activity of this defendant.
THE COURT: That may very well be.
MR. GOLD: And I think the testimony is irrelevant.
THE COURT: Well, look, I think you both have part of a point here and if it's reasonable to get the testimony, whether it proves to be relevant ultimately or not, I guess the right word is "material" remains to be seen.
I would like to have it. On the other hand, given the nature of the subject matter, it is really totally unfair for it and I don't use the word in any pejorative sense to be sprung on the plaintiffs in this way without a deposition. It's technical subject matter. It requires some thought and some preparation.
So, what we will do is this: I will hear him, if he's here and he wants to testify on Thursday, out of order, provided he's made available tomorrow night to the plaintiffs for a deposition.
MR. COOPER: Thank you, your Honor.
MR. HERNSTADT: We are going to check his -- that's our problem.
THE COURT: That's the ruling.
MR. HERNSTADT: Thank you, Judge.
THE COURT: Next witness, sir?
MR. GOLD: Your Honor is going until what time tonight?
THE COURT: More or less, 4:30.
MR. GOLD: And you want the next witness to start? Thank you.
THE COURT: I'm afraid that this case violates the rule against perpetuity.
MR. GOLD: Marsha King.
THE COURT: Ms. King, before we start, were you here yesterday when I said anybody who's going to testify in this case has to leave the courtroom?
THE WITNESS: Yes.
THE COURT: Have you not been in the courtroom during the past testimony?
THE WITNESS: Yes. They brought me back. I left the room when you said that.
THE COURT: Who brought you back?
MR. COOPER: Your Honor, you explicitly pointed out that representatives of the plaintiffs were expressly allowed to be here.
THE COURT: I said each side was allowed a representative is what I said.
MR. COOPER: Yes, your Honor.
THE COURT: So, this was the representative, is that right?
MR. COOPER: Yes, your Honor.
THE COURT: O.K., thank you.
MR GOLD: The only one that's been in the courtroom since the beginning of the case.
THE COURT: All right; fine.
Q. Ms. King, who is your employer?
A. Warner Brothers.
Q. And what is your position with Warner Brothers?
A. I'm the executive vice-president worldwide business affairs for Warner Home Video.
Q. How long have you been with Warner Home Video?
A. Approximately 10 and a half years.
Q. Are you an attorney?
A. Yes, I am.
Q. What did you do prior to the commencement of your employment at Warner's?
A. I had a career in education. I then went to law school. And after graduating from law school, I spent three years at the law firm of Rosenfield Iron & Sussman in Los Angeles. I then spent a little over three years with 20th Century Fox and I've been at Warner Brothers since 1990, the very beginning.
Q. What is the present scope of your responsibilities at Warner Brothers?
A. I have responsibility for all legal and business affairs worldwide for the video division, and since January, also for the pay-per-view video on demand in the United States.
I also handle human resources and I have been involved in the creation and launch of DVD since its inception.
Q. During your career in the motion picture industry, including your employment with Fox and with Warner, have you participated in any industry-wide organizations or committees?
A. In terms of the motion picture industry, I've participated in home video committees. I participated in the Hollywood Advisory Committee, which gave advice on what features the DVD format should include from the motion picture studios.
I've been, along with my boss, Warren Lieberfarb, on the Senior Executive Budget Committee of the MPAA. I've also participated in the MPA's activities for the copy protection working group. At first I did that, I went to all the meetings and now I work for the last, oh, two years on an as-needed basis.
On the industry, I participated first in all the meetings of the copy protection technical working group. Now I do it on an as-needed basis and I've been intimately involved with the DVD forum.
Q. Are you familiar with who the plaintiffs are in this case?
A. Yes, I am.
Q. And who are they?
A. They are all the major motion studios which make up the MPAA, which include the Warner Brothers, the Walter Disney Company, 20th Century Fox, Paramount Pictures, Universal and
Q. Could you describe for us the way in that motion pictures are distributed?
A. Once we complete a motion picture, we have windows of distribution to make back our investment in the product. The first window is the theatrical window of distribution.
Following that, we distribute the movies on airlines and in hotels.
Following that, the movie is distributed in the home video marketplace. After that, pay television, and after that, cable, and eventually free broadcast.
Q. Can you describe for us how motion pictures are distributed in the home entertainment market?
A. Let me see if I understand your question. We release video in the home entertainment market on video cassettes. We release them in certain parts of Asia on the video compact disk called the VCD, and now we distribute worldwide on the DVD format as well.
Q. Is the home video market important to the studios?
A. The home video market is extremely important to the studios.
Q. Why?
A. Well, starting in 1980, it was a way for us to refreshen our crown jewels of the studios. Not only could we release a new picture into the home marketplace and people get excited about it like the Matrix, but we also had the ability during the '80s and the '90s to redistribute what the studios feel are their crown jewels are our library.
In the case of Warner, that's over 6,000 films. Now, we don't distribute them all, but they're a good part of our income and help the studios make a profit.
Q. What percentage of the total income from movie distribution at Warner's comes from the home video market?
A. It's approximately 40 percent. It varies from year to year.
Q. And do you know how much -- what percentage DVDs are of that 40 percent?
A. Well, I can only speak for Warner, but this year, we think that the DVD revenue will make up 35 percent of our worldwide home video revenue.
Q. What is a DVD?
A. A DVD is a movie on an optical disk. It looks like a CD, but it's really 26 millimeter substrates bonded together, which contains at a minimum power .7 gigabytes of information, so it can store a full-length motion picture in the quality -- in high-digital quality.
Q. Can you compare DVDs and VCRs in terms of the quality of the product, the picture and the sound?
A. The quality is tremendously better. It's a digital rather than an analog quality. When we first tested the development of DVD, the pictures were remarkable. They were much better than laser disk and very close to a D-1 master, the picture you see in the theater.
The sound quality is much better with 5.1 surround sound, if you have it or Dolby digital. It's much more like a theatrical experience.
Q. And how are the -- how is the audio-visual information stored? In what form is it that it's stored on a --
A. In digital form.
A. In digital form.
Q. What are the studios' rights and movies that are distributed in DVD format?
A. The studios either own the copyrights or they have joint ownership in the copyrights. That's a general statement.
Q. Are the studios that are plaintiffs in this case significant players in the DVD market?
A. The studios in this case make up the large majority of the DVD market.
Q. Did Warner Brothers -- do you recall whether or not Warner Brothers before DVDs were released had any concerns about distributing their movies on DVDs?
A. Yes, they did. We were very concerned about putting our movies into a digital form because unlike a video cassette where if you make copies, they deteriorate, and they become grainy.
A digital DVD makes a perfect copy and can continue to make perfect copies. So, they're all like the original and they're all perfect. So, it makes an even greater threat to piracy.
Q. Did you learn through the committees you testified that you were on that that concern was shared by all of the plaintiffs?
A. Yes, it was.
Q. What did the studios do about that concern?
A. The studios got together starting in the mid-'90s to work on some type of copy protection for our product. In many, many meetings. As a matter of fact, we met with the MPA companies and in other instances, we met with the Consumer Electronics Trade Group, which is called CEMA.
We discussed what was necessary for the protection of our product in the digital arena and we came up with a three-pronged approach which included technological protection and legislation. Those were the first two, and then the contracts that go with the technological protection.
Q. Why did the studios decide the contracts would help?
A. Well, I have to move a little further in the process. We then brought in when we started out with legislation which was similar to the Audio Home Recording Act, we found out that the computer companies -- we had reached out at Warner to the computer companies earlier than that.
We knew we needed them to be partners with us in creating a standard to protect our works because in the development of DVD, we could see that the digital area was coming into our own media. It hadn't only come into audio at that time in the mid-'90s, so we reached out to companies like IBM and Intel and Microsoft early on in the process.
When they eventually joined with the motion picture studios' copyright owners and consumer electronics companies, in open meetings with the three industries started working on this tripartite plan to protect our content.
Did I respond to your question?
Q. Thank you.
A. Okay.
Q. Exactly what did the studios do to resolve their concerns about technical measures and their concerns about the video disks being in digital form?
MR. GARBUS: Can we have it stated with respect to time, if we can?
THE COURT: Yes.
Q. What was the year that these discussions were going on before they resolved in any decision?
A. I believe they started in, it had to be like '95. Maybe it was -- it was either late '95 or early '96, to the best of my recollection.
Q. And in what year was a decision reached about the technological issues that were being discussed relating to the DVDs?
A. '96.
Q. And what was the technological solution that the studios agreed upon?
A. CSS encryption. And it wasn't just the studios. It was the studios, the consumer electronics industry and the computer industry as well.
Q. Had Warner made any determination about whether it would release any DVDs without encryption?
A. Yes, it had.
Q. What was that determination?
A. That we wouldn't release it until we had encryption.
Q. Did you learn --
MR. GARBUS: Specific as to time? We are talking about?
THE COURT: Yes. When?
THE WITNESS: When did we make the decision or when did we release?
THE COURT: When did you decide not to release on DVD unless you had encryption?
THE WITNESS: We decided that we wouldn't release until we had the copying protection, when we started having these discussions and learning about the importance of this.
Q. What year was this?
A. I think it's around '95, end of '95 we were in the development of the DVD. We had merged the two formats, and the next step was how do we protect our copyrights, and so then we started working on that.
THE COURT: Merge what two formats?
THE WITNESS: Originally DVD had two competing formats. There was one developed by let's call it Toshiba and Time Warner, and there was one developed by Sony and Philips, and they were incompatible. One was based on the CD and the other was new.
THE COURT: It was Philips and who?
THE WITNESS: Sony.
THE COURT: When was the decision made to merge those?
THE WITNESS: '95, summer of '95.
THE COURT: Go ahead, counsel. Thank you.
Q. And through your participation in the industry committee as you testified to, did you learn whether any other studios had made the decision not to go forward with DVDs without the protection that Warner Brothers had decided?
A. It wasn't a joint decision, but it became quite obvious in these meetings that they weren't going to go -- that the studios generally were not going to go forward without copy protection.
Q. When for the first time did Warner's release motion pictures on DVDs?
A. We released in the United States in March of 1997.
Q. Were those DVDs encrypted with CSS?
A. Yes, they were.
Q. When did the other studios introduce their DVDs into the market?
A. I don't know the exact dates. Columbia TriStar released very early like we did. Other companies joined let's say midway, maybe through the end of '97 maybe. I think that includes Disney, MGM. The last two companies to release products into this format were I believe Fox and Paramount.
Q. Did all of the studios encrypt the DVDs that they released?
A. It is my understanding that all of the studios encrypted the DVDs they released.
Q. And they encrypted it with CSS?
A. And they all encrypted with CSS.
Q. Have you ever heard of the DVDCCA?
A. Yes, I have.
Q. What is that?
A. The DVDCCA is an organization that licensed to hardware manufacturers and computer manufacturers or software manufacturers that create DVD drives the ability to decrypt, they can make DVD players that play our movies because they license the decryption for CSS.
Q. To your knowledge, is there a uniform license agreement that DVDCCA uses?
A. Yes, I am sure you can do some individual negotiation but basically there is a uniform license agreement.
Q. What has happened with DVD sales since the adoption of CSS and the studios' decision to release their motion pictures in DVD format?
A. From our research at Warner Brothers it's the most successful launch of a consumer electronics product ever.
THE COURT: This is a good place to stop for the day.
Anything else that we need to do this evening? Okay. 9 o'clock tomorrow morning, folks.
MR. GOLD: Thank you, your Honor.
INDEX OF EXAMINATION Witness D X RD RX FRANK STEVENSON..........205 229 ROBERT W. SCHUMANN.......236 278
338 384 385 MARSHA KING..............398
PLAINTIFF EXHIBITS Exhibit No. Received 4 ...........................................243 97 ..........................................270 9 ...........................................334
DEFENDANT EXHIBITS Exhibit No. Received A, I, C and S ...............................337