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