Plaintiffs,
v. 00 Civ. 277 (LAK) SHAWN C. REIMERDES, et al,
Defendants. ------------------------------x
July 21, 2000
9:00 a.m. Before:
HON. LEWIS A. KAPLAN,
District Judge
APPEARANCES
THE COURT: A couple of preliminary things on my list before we get started. First of all, have you been able to reach agreement or otherwise come to a view on the specific findings of the Microsoft case that I asked whether you would stipulate to?
MR. SIMS: Your Honor we haven't yet. We will over the weekend.
THE COURT: Just so I am clear, if I don't hear an objection on the specific findings that I have identified, I will take judicial notice of them and the deadline for any objections is 11 o'clock on Monday. As I say, they are in the nature of definitions and I --
MR. GARBUS: I can't see why it would be a problem?
MR. SIMS: I am advised we have gotten to it, we have no objection.
THE COURT: You might consider also because I will be looking further at that opinion for other things that might be useful by way of background here, to see whether there is a description in it of Linux that you can agree on as to what it is, what its relationship to Microsoft windows is. You may be able to do that, you may be able to save time. OK.
The second item on my list is that I am going to alert you to an issue I thought I had because I am going to ask for a brief on this if by the end of the trial I think it is relevant and you might as well start thinking about it. If I am understanding at least certain of the arguments here, the defendants are arguing that there are encryption utilities other than DeCSS that would decrypt CSS protected DVDs, that there is no proof, direct or otherwise -- as to direct I think it is stipulated -- that any particular decrypted movie that may have been offered over the Internet or on a file-sharing utility or whatever other relevant modes of distribution may be, that was decrypted with DeCSS as opposed to some other decryption utility and what the defendants I think would ask me to conclude from that is that the plaintiffs therefore can't have had any injury actually or threatened by reason of these defendants' actions.
Just by way of a parenthetical digression, I am well aware that the issue of the extent to which there is sufficient proof that there are in fact decrypted movies available over the Internet has not been decided and we are going to have further discussion about that. My question presupposes, just on a hypothetical basis, if there is adequate proof to find that there are such movies out there.
The thought that occurred to me last night and on which I may want briefs is whether the burden of proving that whatever decryptions are out there came from the defendant or more broadly DeCSS is on the plaintiff as distinguished from the burden being on the defendant to prove that they did not. The case that prompted me to think about that, I know we all read this in law school a long time ago, Summers v. Tyce, decided by the California Supreme Court in 1948 which seems at least superficially to be analogous to this problem.
The case involved a group of hunters out hunting with shotguns, two hunters fired simultaneously. One shotgun pellet hit the plaintiff. Because they were shotgun pellets as opposed to bullets out of a rifled weapon, it was impossible to tell which shotgun the pellet came from. The California Supreme Court said that the burden of proof was on the defendants to show that their shotgun did not discharge the bullet that hit the plaintiff and in the absence of such proof, everybody who fired a shotgun at that time was jointly and severally liable.
I am not inviting argument on that this morning, but I wanted you to know that I am thinking about that and to give you an opportunity to address it at the appropriate time.
OK. That said -- and I should add there is a lot of development in the law of products liability, I am sure you all the know the case Summers v. Tyce as its starting point and some of you may know that. Let's continue where we are.
Mr. Corley, come on up. You are still under owes.
MR. GARBUS: We had that open question before you concerning certain aspects of Mr. Corley's testimony. I presume we are not getting into it until such time as a further discussion of the court.
THE COURT: Absolutely. Absolutely. If it is something you are going to want to go into Mr. Gold, tell me you need to talk to me privately with Mr. Garbus.
MR. GOLD: Thank you, your Honor.
Q. Good morning, Mr. Goldstein.
A. Good morning.
Q. We left off yesterday discussing a statement that you had made and I am going to give it to you again. Did you not at one point in time, after October of '99, state that DeCSS was a free DVD decoder that allows people to copy DVDs?
A. That was a statement that was made on our web site which I did not write but I take responsibility for. It was at some point after it was published on our web site I believe in November that we realized that it was a lot more complicated than just that and we -- future writings on the web site reflected this.
Q. What do you mean when you say it was a lot more complicated than that?
A. It wasn't simply a bit of code that allowed someone to copy DVDs. At that point in time, I wasn't even that familiar with the technology. I wasn't aware of how the encryption worked, I wasn't aware of the extent of existing DVD piracy and wasn't aware that simply copying a DVD was a trivial thing that had been done for years, so I misread the actual facts of the case. When I realized it was more complicated than what we had reported, the case actually became very much more interesting to me.
Q. Did you discover after you first made the statement we have just referred to that it was incorrect?
A. Did I discover -- first of all, I didn't make the statement. I discovered after looking at various public forums, discussions about the subject, that this was not a case about copying. It had nothing to do with copying. It was about something called access control which was, prior to November, I had been unfamiliar with that.
THE COURT: The question, Mr. Corley, wasn't about what this case was about. The question was about the statement that appeared on your web site.
THE WITNESS: I am sorry. Not the case but what was going on at the time, the people whose web sites were being shut down, the story itself, that apparently was not about copying DVDs as we had initially stated.
Q. Let me ask you, Mr. Goldstein, is it not true that DeCSS is a free DVD decoder that allows people to copy DVDs?
A. I believe it allows the data to be copied to a hard drive at some point during its operation as do many other utilities but I believe that it can do that if you write it in a particular way.
Q. Then the prior statement you made was correct, I guess?
A. Not entirely because it did not exist for the purpose of copying DVDs. One would not run that program to copy DVDs.
Q. But you said that it was a free DVD decoder that allows people to copy DVDs and if I understand your testimony this morning, you are saying the same thing?
A. It allows you to do that but that's not the purpose of it. Again, I am looking at this from a journalistic perspective.
Q. I am not asking you the purpose, I am asking you what it does.
MR. GARBUS: I will object to Mr. Gold cutting off the witness' answer.
THE COURT: The witness is being unresponsive.
A. I am explaining it as best I can. Basically the program exists to allow someone to bypass the CSS encryption on the DVD. Now, whether that's the purpose of that is to copy a DVD, that's something that we initially didn't understand properly and I realize, I realized in November that it was -- that was not the case at all, that it was about defeating access control, being able to have a player that worked under the Linux operating system among other things.
Q. You began posting DeCSS on your web site in November of 1999?
A. That's correct.
Q. Is it your testimony that you did that as a journalist to write a story?
A. That's correct.
Q. Could you have written the identical story without the posting, using the letters DeCSS as many times as you wanted in the story?
A. Not writing a story that would have been respected as a journalistic piece, no, because in a journalistic world, you have to pretty much put up or shut up. You have to show your evidence and in this particular case, we would be writing an evidence without showing what we were talking about and particularly in the magazine that I work for, people want to see specifically what it is that we are referring to, what bit of technology that doesn't work, what new advancement, what evidence do we have and simply saying that somebody else said something just won't cut it.
So in this particular case, we pointed to the evidence itself which was already firmly established out there in the Internet world. We just put it up on our site so we could write our perspective on it and show the world what it was all about.
Q. Getting back to the question, in November of 1999, was it possible for you to write a story about DeCSS on your web site, using the letters DeCSS next to each other as many times as you wanted, without posting DeCSS?
A. I will take another shot at it. I -- basically, the story would not hold any value to our readers if we simply printed allegations without showing evidence.
Q. I am not asking you, sir, what value your story would have.
THE COURT: Mr. Garbus.
MR. GARBUS: I object. The questions are argumentative. And bad as to form.
THE COURT: Certainly the one in the process of winding up is.
Do you have another question, Mr. Gold? Ask it, please.
Q. In order to post DeCSS, didn't you have to go to your computer and get it?
A. Go to my computer and get it?
Q. Doesn't anyone have to -- yes, go to your computer, the same one you used to write the story?
A. We had to get DeCSS from a computer, not our computer because we didn't have it. We took it from one of the other sites that had it at the time and posted it based on that.
Q. Once you did that, when you wrote DeCSS in your story, in effect now you had posted it, isn't that right?
A. That's correct.
Q. Couldn't you have written the same story using the same exact words and using DeCSS without going out and getting DeCSS and posting it?
A. No. It would not have been the same story. It is analogous to printing a story about a picture and not printing the picture. People want to see what you are talking about.
Q. Does your web site now have a slogan "Stop the MPAA"?
A. It is probably on there somewhere, yes.
Q. Doesn't it stand out in bold letters?
A. I'm not exactly sure where it would stand out, but wherever it is, I'm sure it stands out graphically.
Q. And what is the meaning of that phrase, what do you mean to convey by stopping the MPAA?
A. Well, it is basically a phrase that I didn't coin myself. It has come from a number of people that see the actions of this lawsuit and other events over the past few months as ominous and something that should be stood up to and that's what people are doing simply by vocalizing that.
Q. Have you tried to stop the MPAA by writing stories about the MPAA and describing what they do as inappropriate?
A. I don't know if they carry that much weight where I could stop the MPAA by writing a story, but I have written stories to educate people as to the facts of the case.
Q. Have you ever tried to stop the MPAA by making contributions to organizations that were espousing the repeal of the antisurf protection laws?
A. We have tried to raise funds, I am not in a position to make contributions unfortunately, but we are trying to raise funds to help pay for our defense.
Q. Have you promoted through your web site the taking or downloading of DeCSS?
A. We have promoted the linking to various sites that still have it posted because that has not been ruled illegal in any way.
Q. Is it your belief as a reporter that to write a story about trafficking in illegal drugs in Manhattan, you would have to spend time actually trafficking in illegal drugs?
A. No, I don't think it is similar at all. One is a computer file, one is an actual substance.
Q. Is it true that the number of sites posting CSS has increased since January 2000 when you started linking?
A. It is hard to say exactly how many there are at any one particular point in time. There were a lot already up when we started the story. We came in kind of late. I believe CSS was cracked, I am hearing dates of October, and we didn't post the story until nearly a month later.
At that point in time, there were already hundreds of sites that had it and that was a good part of the story that we posted. I don't know how many there are now, and I don't know how many came up in January. I do know there was an increase after the preliminary injunction against us and I'm not sure where that stands today or how many sites actually have it or how many sites that haven't been reported that have it.
Q. Mr. Goldstein, are you a leader in the hacker community?
A. Some people may say that. I don't like to refer to myself as a leader but I am certainly somebody who certainly follows that particular aspect of society and I try to speak intelligently on it.
Q. You publish the Hacker Quarterly?
A. Yes.
Q. Your web site 2600 is known to virtually every hacker throughout the United States?
A. And quite a number of nonhackers as well, yes.
Q. You have appeared on radio and television?
THE COURT: We are not going to repeat what Mr. Garbus did yesterday, are we? We went through the TV programs and magazine articles. Let's go, Mr. Gold. He has a right not to like this law and he has a right to say so.
MR. GOLD: Absolutely.
THE COURT: The question is whether he violated it and that's a different question.
MR. GOLD: My point, yes.
Q. There was a hacker convention last weekend, is that true?
A. That's correct, the third HOPE convention, call H2K.
Q. And there was a Mr. Johansen appeared at that?
A. Joe Johansen appeared on panel.
Q. And he spoke?
A. He and his father both spoke.
Q. Was a mock trial held of this case on --
A. Yes, actually we had scheduled that before the trial had been scheduled so the timing was kind of strange but yeah, that was organized by somebody else.
Q. Is it fair to say that the hacker community in the United States is following this trial carefully?
A. I would say the hacker community, open source community, the Linux community, yes.
THE COURT: What do you mean by the open source community?
THE WITNESS: The open source community is basically people who write software, release the source code, share information, it overlaps into the Linux world. I am actually not a part of that community. I didn't know much about that community before this case.
THE COURT: OK, thank you.
Q. Is it true that the 2600.com site provides a form for people to fill out so they can add their site to the 2600.com mirror list?
A. Yes, we have two forms. We have a form where people know about a site that carries DeCSS or know of a site that carries DeCSS, they can submit that, or if they know of a site that we are listing that no longer has it, they can fill that out as well. But I should also point out that that has not been worked upon for a couple of months simply because we are too busy with other projects.
Q. But the form has been there for many months?
A. The form has been there from the beginning, yes.
Q. And it still is?
A. I believe so.
Q. You don't know?
A. I haven't looked at our web site in a while but I don't believe any changes were made, no.
Q. How long a while?
A. I don't look at every page.
Q. How long a while haven't you looked at your web site?
A. I have looked at my web site. That particular page I have not looked at probably in a couple of weeks but I believe it is still up there because we don't make changes.
Q. Do you understand that it is wrong to break through a protective device that protects a digital copyrighted work in order to take that work?
MR. GARBUS: I object to the question.
THE COURT: Sustained.
Let me ask you something about the mirror list and some of the sites to which you have linked. Are there sites to which you are linked on which by clicking on the link on your site, you reach a page at the linked site that has a variety of content on it which may or may not include DeCSS on the first page that comes up?
THE WITNESS: Yes, that's correct. I would say that's probably the case more times than not.
THE COURT: Do some of those sites then give the person who reaches it through clicking on the hyperlink on your site then give the user or visitor, whatever you want to call it, the option to go further in the -- I'll call it the transferee site if the visitor wishes to download DeCSS?
THE WITNESS: The person is given the choice as to whether or not they want to proceed further? Yes.
THE COURT: Are there sites to which you are linked or have been linked where the effect of clicking on the hyperlink on your site is to begin a download to the user of DeCSS without the user or the viewer taking any further action?
THE WITNESS: You would always have to take some bit of further action even for something as simple as verifying where you want to put the file on your hard drive. There are no instances that I know of where you can only click once on one of our hyperlinks and immediately start a download.
THE COURT: From your understanding, is it possible to construct a link of the type I have described, whether it is on your site or not?
THE WITNESS: I imagine anything is possible but I'm not familiar with that particular application.
THE COURT: Are there links listed on your mirror list in which the user, when the user clicks on the link is transferred to a point on a transferee site that has no content that comes up on the screen other than DeCSS or a dialog box that requires the user to do something like verify that the user wishes to download DeCSS? That is to say, no other content?
THE WITNESS: Yes, that's certainly possible.
THE COURT: OK, thank you. Go ahead, Mr. Gold.
Q. Mr. Goldstein, have you ever publicly advocated that it is wrong to infringe on anyone's copyright?
A. Yes, I support the copyright laws as I understand them.
Q. Have you, sir, publicly advocated that helping someone to commit a copyright infringement is wrong?
A. I believe that helping somebody to break the law is wrong, yes.
Q. What do you mean by wrong?
A. Illegal, immoral, something I wouldn't do.
Q. Now, at the end of 1999, did you know that CSS was a protected device protecting digital copyrighted movies?
A. I knew it was an encryption standard that had been applied to DVDs. I did not see it as the same thing as preventing illegal copying, no.
Q. Why not? What's the difference?
A. Again, I'm not a lawyer, so my understanding of the nuances might be a bit vague, but --
Q. Sir, I would like you to not give me any legal opinions.
THE COURT: Mr. Gold, he was trying to answer so let's hear the answer.
MR. GOLD: Thank you, your Honor.
A. My understanding is the protection, the copyright law is meant to protect the owner of the copyright from having illegal works distributed whether by copying or any other kind of infringement where the work or the copyright holder is not compensated for the work. And my analysis of CSS and what CSS accomplished was not the same thing as that. In other words, copying of DVDs was not affected by whether or not one decrypted CSS or one did not decrypt CSS.
Q. Did you know at the end of 1999 that the movies made by the major Hollywood studios were copyrighted?
A. Did I know they were copyrighted? Yes, of course.
Q. Is the quarterly published, Hacker -- forgive me --
A. Hacker Quarterly.
Q. Is that copyrighted?
A. Yes, we copyright both the magazine and material on the web page.
Q. Why?
A. We don't wish for people to be able to simply copy everything on our site and claim ownership as theirs.
Q. Did you make the copyright application or authorize that it be made?
A. Yes.
Q. Now, by providing links through the 2600.com site, are you making it possible for any member of the general public to download DeCSS if they have a computer?
MR. GARBUS: I object to the form of the question.
THE COURT: What's the objection?
MR. GARBUS: Let me hear the question again.
MR. GARBUS: I will withdraw the objection.
A. If they have a computer and a connection and they choose to go to our site, yes, they can download it that way.
Q. Is it your understanding that once someone has downloaded DeCSS through the 2600.com site, neither you nor 2600 has any control over what they do with that, what they did with DeCSS?
A. That's correct, we have no control what people do after they leave our site.
Q. Did you make any efforts to confine your providing DeCSS to people who were going to use it for any specific purpose?
A. I don't think such control is possible on the net. So the answer would be no.
Q. Is it true that anyone who downloads DeCSS can use it for any purpose that they want to put it to?
A. Any purpose they want --
Q. Any purpose at all?
A. I'm not -- I am having trouble following that. DeCSS can only do a limited number of things. It can't do anything somebody wants.
Q. Is it not true that all DeCSS can do is decrypt CSS?
A. DeCSS exists for the purpose of bypassing CSS, correct.
Q. Is it true that your posting of DeCSS and your linking to other sites that post DeCSS is being done for the sole reason that you are a journalist?
A. The reason the story appeared was because it was a journalistic piece. The reason we continued to write about it and talk about it is because we believe it continues to be that kind of a story.
Q. Writing it and being a journalist was your only purpose of posting or linking to other sites that --
A. That's the purpose for our site, that's the purpose for our magazine. It is a journalistic endeavor, yes.
Q. Did you ever write that the mirroring of DeCSS was a demonstration of electronic civil disobedience?
A. I can't say that I wrote those specific words but I believe those words may have appeared on our web site.
Q. And you're responsible for them?
A. I take responsibility for what appears on our web site, yes.
Q. What is your definition of civil disobedience?
MR. GARBUS: I object.
THE COURT: Sustained.
Q. When those words appeared on your web site, what did you understand them to mean?
A. My definition of civil disobedience, electronic civil disobedience, I suppose simply people taking a stand in a way they perceive as morally just. I really think it should be left up to the individual person to make that definition on their own. That's how I would picture it on the web site. Again, I don't know the exact context of how it appeared on our web site. I would have to look at that.
Q. Is it not true, to your knowledge, that civil disobedience means violating some law for the purpose of making a statement?
A. It many cases, it does involve sitting in front of a door, for instance, a minor violation to prove a point, yes.
Q. It is limited only to minor violations?
A. It can be bigger than that, I suppose.
Q. Now, do you write a news story on your web site or does a news story appear on your web site relating to DeCSS every single day?
A. I write a story occasionally. There are other people who write stories occasionally on the web site. They do not appear every day, no.
Q. How often in the course of a week in the last three months have stories about DeCSS appeared on your web site?
A. I would say probably an average of about one a week. And that's simply because we don't have very much in the way of staff.
Q. But I gather that you link to sites that post DeCSS every single day, every single minute, every hour of the year?
A. It is not an ongoing thing. We are not consciously doing it -- basically every story we write on our web page stays up until the end of time or until we are ordered to take it down.
Q. Is it possible for you to remove it?
A. Yes.
Q. You haven't done that?
A. No, I have not.
Q. And you don't take it down on each day when you are not writing a story about DeCSS, is that true?
A. No, we believe in keeping our stories up even when a story has a factual error in it. Our philosophy is it would be wrong to rewrite history and pretend we didn't say something that was wrong.
Q. Have you made any money by posting DeCSS or linking it to other sites that post DeCSS?
A. I would strongly suspect not.
Q. Why would you only suspect? Do you know?
A. I'm certain I haven't made any money from posting DeCSS. I have probably lost quite a bit of money because I have not been able to devote my time to the things I am supposed to be doing.
Q. There has been a great increase in people coming to your web site since you first started to post DeCSS, is that not true?
A. I have no way of knowing that since we haven't kept a counter since last summer.
Q. Wasn't that because so many people were coming to your web site?
A. That was last summer before all this started. I have no way of knowing how many people are hitting our site. We have no ads on our site so we have no economic need for more people to come there. I do note a lot of people are talking about it. I can suspect that more people are coming to our site but I have no real way of proving that.
Q. I gather al of your income comes from the Hacker Quarterly?
A. That's correct.
THE COURT: Mr. Gold, isn't that whole line irrelevant, in line of Greeging and a whole line of cases all the way back to Greeging?
Q. Have you talked with anyone at all with about advertisements in the Hacker Quarterly in the last several months, the possibility of advertising?
A. No, our policy is never to accept advertising.
Q. And you have had a discussion with no one about that?
A. No.
Q. I gather, Mr. Goldstein, that you have never been involved personally in reverse engineering?
A. No, I'm not an engineer.
Q. And I gather you have never been involved in cryptographic research?
A. No, I am not a cryptologist.
MR. GOLD: Your Honor, I believe it would be appropriate to have a sidebar at this point before I get into another subject.
THE COURT: Come to the sidebar.
MR. GARBUS: I would ask that this part of the record be deemed confidential.
THE COURT: The transcript of the sidebar will be separately bound and filed under seal. It will be available to counsel but not otherwise.
Implicit in that of course is there will be no discussion by counsel or revelation to anybody about what the sidebar was all about.
THE COURT: Anything else, Mr. Gold?
MR. GOLD: Your Honor, I would like to offer pages 58 and 59 of Mr. Goldstein's deposition transcript as an exhibit in the record at this point.
THE COURT: You have your objection, Mr. Garbus. I take it subject to the objection. If I don't refer to it in my decision, you should assume that I sustained the objection.
Q. Mr. Corley, I have noticed that a picture of a telephone and a telephone booth appears to an appear on the back cover of every issue of the Hacker Quarterly?
A. That's correct. We print foreign pay phone pictures.
Q. For what purpose?
A. People seem to be interested in what pay phones in other countries look like so they send us their photos when they go on vacation or if they live in that particular country and we compile them together and print four pictures on the back of every issue.
Q. And the 2600, that title of your quarterly, is that -- does that relate to a situation occurring with frequency in the '80s and '90s relating to phone service?
A. No, actually as I said yesterday, that dates back to the 1960s. It is something known as in-band signaling where a particular frequency sent over a long distance telephone line cause certain conditions to occur. And committing a 2600 hertz tone would drop a subscriber into what was known as operator mode where they could route phone calls, route themselves to internal operator and explore the entire system. That has not worked for quite a while and it is a symbolic type of name.
Q. Going back to the description you just gave us, was it possible to use what you described to make phone calls without paying for them?
A. That's one use, yes, it could have been used in that way as well.
Q. Yesterday we were reviewing certain articles or your counsel was reviewing with you articles that appeared in the Hacker Quarterly. I am not going to go through them line by line at this point. However, do you recall whether that warning about -- that goes something like if I remember it, we don't advocate the breaking of the law so we are not advocating that you perform the acts described above, did that appear in every column in the last four or five years?
A. It is something that has recurred. We don't print it on every page in every issue. So for instance, if somebody writes a letter to the editor and I think you could point to virtually every expression of this, somebody expresses an intent to commit a crime, we will without fail advise them not to do that or try to convince them that's a really bad idea.
Q. Such descriptive articles about acts which were in fact illegal did not contain that warning?
A. The articles are written from the author's perspective. If the author wrote the article from a different perspective as ours, there would be no such correction in there.
Q. By the way, how do we know that those authors weren't you?
A. Well, I can tell you they weren't me but other than that, I don't know how I can prove it.
Q. So --
A. Without violating --
Q. So Bull Finch and Crypton and whoever people sign, are you sure those people aren't you?
A. I'm very sure, very sure. For one thing, I don't have the technical expertise to write many of those articles. I write the editorial, I write the responses to the letters and occasionally news updates.
Q. Do you recall one such article where there was a description of how one could climb up a tree on his street where there would be a black box that related to telephone service in the community --
A. I believe you made reference to that yesterday. It is not really a black box.
Q. What color is it?
A. It is different colors, but beige, white, silver.
Q. Those are the boxes?
A. Basically that particular story entailed people who could climb poles or go into basements or closets in buildings and make phone calls off subscriber lines.
Q. Do you remember in one paragraph, there was a description of how you could climb the tree or pole and get to the black box and whatever color it was and rip it apart so there would be no telephone service to the community?
A. I don't recall specifically that paragraph but that could have been something that the author wrote.
Q. And you did not write that article?
A. No, I did not.
Q. Does that article, if you remember, contain a warning about don't break the law and don't do the things that are set forth above?
A. No, as I said, we warned people through letters and our editorial policy. We don't insert our comments into other people's articles.
Q. I am asking if you remember that that particular article did not contain such a warning?
A. I don't remember the particular article but our policy states we don't insert our editorial policy into articles.
THE COURT: Mr. Gold, I think you made your point.
MR. GOLD: Thank you, Mr. Goldstein. Thank you I have no further questions.
Oh, yes, if I may, there is one area that I haven't gotten into. I thank my colleague.
Q. Mr. Goldstein, is it true that unless you are enjoined, you intend to keep providing links on 2600.com to other sites where DeCSS is available, do you not?
A. It is my understanding that that's legal so until we are told otherwise, yes.
Q. The answer is yes?
A. Yes.
MR. GOLD: Thank you.
THE COURT: Thank you, Mr. Gold.
MR. GARBUS: I have one question.
Q. The judge asked you about linking. If www.garb.com comes to you and asks you to link, do you know what material I will have on my site when you give me permission to link to you?
A. Well, first of all, I believe you mean permission for us to link to you.
Q. Yes?
A. What we had been doing while we were keeping the list updated was basically going to the site, seeing if the file names were there, were present, and if so, and this is because we were getting so many submissions, we would just say yes, OK, we will post this one.
What we later found out, there were some dummy files out there. Some sites had the file names but they weren't really the files. They were gibberish or even empty files. It is simply impossible for us to go out there and verify that each file is exactly what it says it is. That's one of the reasons we stopped doing it, because it was kind of pointless after a while.
Q. Turning to the judge's question, do you know if you are going to link to www.garb.com who allegedly has DeCSS there, whether it is on the first page, second page, fifth page or what other information is contained on that site?
A. I am sorry, could you rephrase that a little?
Q. Let's, let's assume on your site 2600.com, you had ww.garb.com as a linking site. Do you know -- and that linking site allegedly has something about DeCSS, do you know whether -- it has comments on DeCSS, do you know whether it has the actual mirror and do you know where that appears on the first page, the fifth page of the site?
MR. GOLD: Objection, your Honor.
THE COURT: Overruled.
A. We would know when we initially verified the existence of the site if it was on the fifth page or first page or wherever but we wouldn't retain that knowledge and that could change, too. A person could take down DeCSS the day after we link to them and until somebody told us that, we wouldn't know to take it off the list. As I mentioned over the past few months, we haven't maintained it at all.
Q. Do you know how many clicks it takes once you get to that site to get to the actual mirror of DeCSS?
A. It differs with every site. Some may have a diatribe of have a various political ideology that they want you to read before you get to the particular mirror of the file where you click on it. Some might have nothing but the file name when you get to their site that you click on. So it varies with every site. We have no way of controlling that.
THE COURT: Ever heard of the term "deep linking"?
THE WITNESS: I have heard the term. I am a little confused by it because I know of one type of linking. I might have an idea of what that is. I think it involves going into a site beyond the main page, I think Ticket Master was doing something like that or somebody was doing something like that to Ticket Master.
THE COURT: Now, your web site has a home page, right?
THE WITNESS: Correct.
THE COURT: That's the page you get if you enter the universal resource locator www.2600.com into your browser, true?
THE WITNESS: That is right.
THE COURT: You have other pages that are, so to speak, behind the home page, right?
THE WITNESS: That's correct.
THE COURT: Every one of those other pages has its own universal resource locator or URL, correct?
THE WITNESS: That's correct, yes.
THE COURT: So someone who wished to link to your site and not to your home page but rather to some specific page beyond your home page could enter in his own web page a hyperlink not to your home page, but rather to the page behind your home page in which the person was interested in linking, right?
THE WITNESS: That's true, yes.
THE COURT: So if, for example, let's just make an assumption, the New York Times, which is www.NYTimes.com, has a web site, the home page has the URL that I just indicated, right?
THE WITNESS: That's correct.
THE COURT: And let's just suppose that as somebody suggested somewhere in the bowels of the New York Times web site is the DeCSS code, all right? Are you with me?
THE WITNESS: Yes.
THE COURT: That code would appear on a page or out there in hyperspace with its own unique URL, true?
THE WITNESS: Correct.
THE COURT: Now, if the New York Times wanted you to carry a link to its mirror, you might link to that mirror in more than one way, isn't that true?
THE WITNESS: There are several ways you can do it, yes.
THE COURT: You could link by inserting the hyperlink to www.NYTimes.com and then leave the user to navigate through the New York Times web site, true?
THE WITNESS: Correct.
THE COURT: Or you could link by inserting the appropriate URL to the specific page on the New York Times web site that had the DeCSS code, am I correct?
THE WITNESS: That's correct.
THE COURT: And it was your practice to verify the existence of proposed mirrors before you linked to them, when you put them on your mirror list, right?
THE WITNESS: That's correct.
THE COURT: So the means of knowing whether the link that you posted on your mirror list took someone who clicked on that hyperlink to a page containing a whole bunch of content, some of it relating to DeCSS and others relating to God only knows what, as compared to taking you directly to the source code for DeCSS was in your hands, true?
THE WITNESS: If we had spent more time on it, we could have refined it so it took you directly to the actual files, yes.
THE COURT: Or not?
THE WITNESS: Yes. What we did was we took what they gave us and looked at that and said does this go to DeCSS, either on the first page, second page or whatever and if it did, we just put it in the way they gave it to us.
THE COURT: OK. Anybody want any further examination?
MR. GARBUS: One thing.
If the court were to issue a declaratory judgment saying that the posting of DeCSS were illegal or inappropriate, would you stop posting the linking?
THE WITNESS: Yes, of course.
THE COURT: Mr. Gold?
Q. One question, do you know what a declaratory judgment is?
A. I am sorry.
Q. Do you know what a declaratory judgment is?
A. It is similar to an injunction, preliminary injunction.
MR. GOLD: Thank you.
THE COURT: OK, anything else? Mr. Corley, you are excused. Thank you.
MR. GARBUS: Your Honor, can I approach the bench for a moment.
THE COURT: OK, you and Mr. Cooper or Mr. Sims, whoever wants to come.
MR. GARBUS: I think the Summer v. Tyce issue that you raised is an issue that we have been conscious of since the beginning and just to use the analogy, if one of the bullets is defective --
THE COURT: I don't want to hear argument about it now.
MR. GARBUS: I don't want to also, but I just want to go into the question and relate it and I don't want to get contumacious, the whole question of discovery and the question of robustness is directly related to that issue and it has always been our argument, which we have not had a chance to document through discovery, there is the Merden report, the Macrovision report which indicated that DeCSS was not a bullet in the same way that the other utilities were bullets and it has been, that's been our position from the beginning.
THE COURT: I am glad to hear that, Mr. Garbus, because this is the very first time you have said it.
MR. GARBUS: That robustness was an issue and the efficacy of DeCSS --
THE COURT: You just told me the Summer v. Tyce issue has been in your mind from the beginning and the first person to raise it in this case is me on the 5th day of trial. You are trying to make a record for another purpose. If you want to make a motion at an appropriate point for whatever relief you think is appropriate, you make that motion, but we are going to hear evidence right now.
THE COURT: Mr. Hernstadt, your next witness?
MR. HERNSTADT: Very briefly, before you go to the next witness, yesterday we sent a letter in asking the Court's permission to use a computer to do a demonstration. We thought it was for next week but we have managed to bring the witnesses in for today, so we have another letter asking permission to do it this afternoon.
THE COURT: Tell me what it is about. Tell me what the demonstration is supposed to be about, Mr. Hernstadt.
MR. HERNSTADT: This afternoon we would like to do a demonstration of the LiVid Linux DVD player. The software is still in an alpha -- in other words, even before it is released for general testing, but it is functioning software so we would like to show you how it works.
THE COURT: All right, I have signed the letter. I didn't see the letter you sent yesterday.
MR. HERNSTADT: The other possible demonstration is similar to the one Dr. Shamos did.
THE COURT: Mr. Cooper?
MR. COOPER: Your Honor, we have had no notice of either of these demonstrations to my knowledge. It is difficult for me to understand the relevancy of the first described demonstration to any of the issues in this lawsuit and we would like an opportunity to get more detail from opposing counsel regarding what the demonstrations are.
THE COURT: How long is it going to take, Mr. Hernstadt?
MR. HERNSTADT: The demonstration?
THE COURT: Yes.
MR. HERNSTADT: A few minutes.
THE COURT: Relax, Mr. Cooper.
Next witness?
MR. HERNSTADT: The defendants call Larry Peterson.
Q. Good morning, Professor Peterson. Can you tell us about your educational background please?
A. I have a Ph.D. in computer science from Purdue University.
Q. What year did you graduate?
A. 1985.
Q. What was the subject of your dissertation?
A. It had to do with several issues relating to computer networks and focused primarily on e-mail and use of e-mail.
Q. After you received your degree, where were you employed?
A. I then took an assistant professorship position at University of Arizona. I was there for 13 years, last two of which I was department head.
Q. Of which department?
A. The computer science department.
Q. For the last couple of years, where have you been?
A. Princeton University.
Q. What courses do you teach at Princeton?
A. At Princeton, I have been teaching the computer networks class and introductory programming class.
Q. What is involved in the computer networks class?
A. Primarily I walk students through the motivation behind the Internet, the problems that cropped up over a number of years as the Internet evolved, and how researchers had solved them to evolve the Internet to where it is today.
Q. How long have you been studying the Internet?
A. Since I was a graduate student in 1980.
Q. How long has the Internet been around?
A. For a few more years than that. In 1980 is when it took on the form that we are familiar with today roughly. Before that, it was a packet switch network called the Arpanet. Because of the advent of ethernet and wanting to bring more networks into the fold, the Internet technology was deployed in the very early '80s.
Q. And what are your research subjects?
A. My is research crosses between networks and operating systems. Both of them are broadly the study of computer systems. We build systems, we measure them, and evaluate how they work, so it primarily has been focusing on how we can build operating systems so that networks can be more effective for users. We take a very, what we call, end-to-end perspective so we are concerned not just with one particular thing and how fast you can transmit over it or even the fact that the links are catenated together to form the network or that there is a computer attached to either end and application programming or processes right on those computers, so we have been focused on how to get data from an application on this side of the network to an application on the other side of the network.
Q. Have you ever researched a high speed connections from a network to a computer?
A. Back during the early '90s, we were a part of what was called the gigabit test, it was a national initiative to push the edges of gigabit network technology and at that time, what we in particular were doing was trying to move bits between a processor on one computer to a processor on another computer at the same speeds that the link connecting those two computers operated which at the time was 622 megabits a second, technology called OC12, and we were in fact able to move the data from one machine to another at that speed. There are a number of obstacles we had to overcome to do that.
Q. Is OC12, could you explain what OC12 is?
A. It's stands for Optical Carrier 12. There is a base unit of transmission -- let me go back. There is basically the technology having to do with fiber optics and there is a base rate at which people can transmit which is roughly 55 megabits per second and you keep multiplying that by 2 or 3 or 6 or 12, so 6 times that base rate gives you 622. something megabits per second. It is the way the bandwidth is measured on optical links.
Q. Is OC12 used in the Internet today?
A. Yes, it is.
Q. Where do you find it?
A. You would find it in the backbone of the Internet. So let me just give you a broad picture of the Internet and I can tell you where different technology applies.
You can characterize the very core of the Internet which is a set of long hold networks running across the country from Los Angeles to New York and so on and cities in between as the backbone of the Internet. A number of carriers have provided backbones. In the original days of the Internet, they were typically provided by government agencies so there was the NSF net in the early '90s and eventually commercial companies replaced that. So today you go to Sprint or AT&T and they have a backbone. The links that make up the backbone running between Chicago and Houston or whatnot might be at 622 megabits per second.
Out near the edges of that backbone then, you connect in various ISPs, Internet Service Providers, so your local cable company might in one direction provide you a service at home, but they have to turn around and connect into the Internet at the high end, they would possibly use a 622 megabit link from their site into SprintNet, for example.
MR. HERNSTADT: Your Honor, may I approach?
THE COURT: Yes.
Q. I have handed you Exhibit BDC. By way of explanation, could you tell us what this is?
A. This is just the layout of Sprint's Internet backbone network. I found it on the web a few days ago. It shows links connecting various cities. I know Sprint has a significant presence in Kansas City, for example, so it will show you the link running from Kansas City to Fort Worth and collectively this would make up the Sprint backbone.
Q. Can you explain what the different links are?
A. This is color coded and it is hard to tell for sure which are which, but these are the various links technologies being used in the Sprint backbone, DS3, an older technology, 45 megabits per second. OC3 is 155; OC12, 622; 0C48, that's 6.4 gigabits per second.
MR. COOPER: From a foundational standpoint, can we get some information from the witness about where this document comes from?
THE COURT: He said he found it on the Internet a couple of days ago.
MR. COOPER: We have not seen it before and I am looking for some indication about how he went about locating it and whether this is some area of his expertise or whether he did some research and pulled it down.
THE COURT: Is that about the size of it?
THE WITNESS: Yeah, I went to Sprint.com as a good guess of where to find Sprint's backbone, some links off there, I couldn't give you the exact URL, and I found this page.
THE COURT: What do you want me to do with it if anything?
MR. COOPER: I am trying to explore the foundation of documents of this type so we have an even playing field as far as cross-examination is concerned, your Honor.
MR. HERNSTADT: Your Honor, we would move this into evidence insofar as it assists your Honor in understanding what this --
THE COURT: Now you are not worried that things that appear on the Internet that are hearsay. But there is no objection so I will receive it.
MR. HERNSTADT: Thank you.
Q. Professor Peterson, have you received any honors or awards in connection with your work?
A. Several of my papers have been Outstanding Papers at different conferences, two in particular were Student Paper awards where I was co-author with one of my students at SigComm which is premiere conference for the networking community.
Q. Are you an editor now of one of the --
A. I am editor and chief of ECM which is the computer sciences professional organizations tracking on computer systems. That's the premiere journal on computer systems.
Q. Have you authored any publications?
A. Several. I think I counted this morning over 50. Technical papers.
THE COURT: Do you have a CV?
MR. HERNSTADT: I was about to ask if I could approach.
THE COURT: Yes.
Q. Professor Peterson, is this your curriculum vitae?
A. Yes, it is.
Q. Does this accurately reflect your publications?
A. Yeah, I believe it does.
MR. HERNSTADT: Your Honor, we offer this into evidence.
THE COURT: Received.
Q. Professor Peterson, what is Internet 2?
A. Internet 2 is a consortium of 150-odd universities. In the old days, the Internet was a play thing of the researchers at universities, but of course it has become a very commercial entity today and that has impacted the way research is conducted. So primarily research universities have gotten together to build an another piece, another corner of the Internet that they can use for research purposes and done in collaboration with some of the carriers, equipment companies and the like, Cisco and Nortel, I am not precisely sure who all the players are, so that they can have high speed connectivity so their astrophysicists can send huge files to each other in the national labs.
Q. Will it replace the Internet?
A. No, it is supplemental purely for the use of education. In fact, to join the consortium, you have to agree you will only use the connectivity and bandwidth for research and teaching purposes.
Q. Are you being paid for your appearance today?
A. No, I am not.
Q. Or for any of the work you have done in connection with this matter?
A. No.
Q. Can you describe how the Internet works by, for example, if you were to send a file from your office to a colleague's office, what are the various steps it would take?
A. As I have already briefly described that there is a backbone and off the edge -- there are multiple backbones. Off the edge of those backbones will be individual service providers. They may be cable companies, local phone companies. There are a variety of people who have gotten in the business of providing Internet service. They will then connect at some number of links into the various backbones They might connect for one or might connect to more. Collectively, you can think of that as the majority of the Internet in terms of its capacity.
What happens at the edges then is that individual users or consumers will buy some link into one of those service providers. So maybe it is just they have a 56-kilobit modem and they dial into the service provider periodically or maybe they have released a line which is sometimes referred to as the last mile, last mile link into the Internet.
So now we have the backbone surrounded by service providers surrounded by the last mile links. That constitutes then all the bandwidth that makes up the Internet. One point I should make, if you go into the Internet, it is not just links. There are nodes, computers, in essence, that connect those links together sometimes called packet switchers, sometimes called routers. So at every one of the connection points, there is a router of some sort. Of course at the edges, individual PCs and laptops and whatnot that the end user has is connected to that last mile link.
Q. OK, could you tell us what file transfer speed is?
A. File transfer speed would be the number of bytes in the file divided by how long it took to transfer the file. That would give you a bit rate or byte rate.
Q. Are connections to the Internet or pieces of the Internet rated by how fast you are capable of --
A. Any one of these links, you can talk about the bandwidth it could potentially deliver. Whether or not you get the same transfer speed as you have individual links depends on a number of factors. It certainly depends on the fastest link between the sender and receiver. So I couldn't go -- the transfer time couldn't be any faster than the slowest link between the source and the destination. There are other factors that come into play though.
Q. In practical terms, does one ever get the maximum theoretical speed of any piece of the Internet?
MR. COOPER: Your Honor, it is ambiguous and lacks foundation.
THE COURT: Overruled.
A. We get it in the line. We can get conditions set up just right that we can transfer at the theoretical maximum rate that the link would provide. On any given day at any given time, you might see something approaching that speed, might see half of it, a tenth of it, it is hard to predict. It depends on a number of factors, not the least of which is how many other people are attempting to use the network at the same time and so -- I could expand upon that, but there is clearly going to be a point at which, as I have described it, we have got millions and millions of end users connecting to their ISPs, connecting to backbone. There is some point at which there is a link that goes from Kansas City to Fort Worth that is trying to carry all of that traffic and that link could potentially be a bottleneck, a pinch point in the network.
Q. Is that, what you have just described, is that what is known as congestion?
A. Let me be more precise, congestion is a state where you have multiple incoming flows of packets attempting to go out on a shared link and the input rate exceeds the output capability. So what happens is the packets get skewed as much as they can be, but there is a limited amount of memory in any one of those routers. As soon as that queue is full, packets are dropped and they simply are not delivered. The state at which you drop packets is the state of congestion.
Q. What is the impact of the congestion on the rates of speed?
A. Because congestion means packets are being dropped and not being delivered, if you go to the software on the in-points, they are charged with the responsibility of making sure every packet gets through exactly as it was presented, so as the packets are coming out is exactly the same as the packets that go in. If you ever detect a packet didn't get through, then the sending software is responsible for retransmitting that packet. But the bottom line, you will not get the same rate that the theoretical capacity of the links might have suggested you would.
THE COURT: When you say they are dropped, does that mean they are never transmitted or they are delayed?
THE WITNESS: They are dropped. They will be delayed as long as they are queued in any one of the routers, but they are literally, if I have no room to hold them, I reject the packet as it is coming in.
THE COURT: The question whether a packet is dropped or simply delayed depends on the capacity of the router?
THE WITNESS: That is right.
THE COURT: Go ahead.
Q. What are some of the other pinch points that you mentioned?
A. Well, the software that I have been talking about is TCP, transmission control protocol. It is the key protocol of the Internet technology. TCP is a very delicate protocol in that it has to be tuned just right to get the transfer rates that the underlying bandwidth might suggest. So, for example, TCP will allow some number of packets to be in transit before getting an acknowledgement which is a packet that says I got packet 42, before getting an acknowledgement back.
You would not want to be in a situation where I sent you one packet and waited for you to respond I got it and then send a second packet and then respond because then I have only one packet in flight and cross-country legacies being what they are, you have very low bandwidth, you get very far from the capability of underlying links.
So what TCP does, it will send multiple packets and multiple packets in flight, ideally as many as the Internet capacity can hold. As I said, it is a simple matter of tuning. If your TCP has not been tuned to keep enough packets in flight, you will get far less bandwidth than you might have expected.
Q. What are some of the solutions if any for congestion?
A. Well, there is no solution for congestion aside from putting in more capacity. All we can do is program nodes so they detect when congestion is happening so the sources stop sending so fast because if they continue to send fast, the network will eventually collapse, which is get no useful work done, I am spending all my time sending packets that will eventually be dropped so nothing gets through. So the solution is what TCP does today which is slow down whenever it detects that congestion is happening on the network.
Q. Have you ever heard of technology called Napster?
A. Yes, I have.
Q. Is Napster or use of Napster clogging the Internet?
MR. COOPER: Foundation.
THE COURT: Sustained.
Q. Are you aware of any impact on the Internet of Napster?
A. I am not aware of any studies that say Napster is accounting for "X" percentage of the packets being exchanged. It has not come up in any circles I have been in where people point to Napster as detectable in the traffic.
Q. Are you aware of any other file-sharing technology similar to Napster?
A. Gnutella is the only one I can think of.
Q. Are you aware of any impact on the Internet of Gnutella?
A. No.
Q. Is there, at Princeton University, is there what is reported in the press as a Napster problem? Do you understand what I mean by that?
A. Princeton has not taken any action to limit the use of Napster is all that I know.
Q. What is the network topology?
A. Well, roughly speaking it is like this, and I'm not the Princeton system administrator so I am sure there are details that I don't know. Each dorm at Princeton currently has a 10- megabit shared network for all the students within that dorm that would then be connected by 100-megabit ethernet into the central facilities of the university. So it is one of a -- like a tree, like the central facility, the core, 100 megabits going down the dorms and various departments as well and in the dorms, you would have 10 megabits shared. Within individual apartments, you have richer connectivity because there are other things they are trying to do.
Q. Are you aware of use of Napster in uploading, downloading MP3 files at Princeton?
A. Not that I am aware of, no.
Q. Could the Internet sustain file transfers of a size of 650 megabytes in any kind of significant volume?
MR. COOPER: Object to the form, and foundation.
THE COURT: Yes, sustained.
Q. Are you aware of the size of a Napster file?
A. Napster files are in the neighborhood of 3 or 4 megabytes.
Q. Are you aware of a general volume of Napster files that are being transferred over the Internet?
A. I'm not aware of the volume of transfers, no.
Q. Could the Internet as it is now configured handle a significant number of transfers of 650 megabit files?
MR. COOPER: Object to the form and foundation.
THE COURT: Sustained as to both.
Q. Based on your experience and your expertise with networking the Internet, is it your opinion that the Internet as it is presently configured could handle thousands of 650 megabyte files transferred?
MR. COOPER: Same objection.
THE COURT: Sustained.
Q. I would like you to assume the following scenario, that tens of thousands of 650-megabit files are being transferred each day and could you tell us what your opinion --
A. A minute ago you asked me if I knew what the volume of Napster was and I don't know in any detail what the volume of Napster is. But I can say, I can make a comparison with 650 megabyte video files and say for whatever fault that volume is, I can talk about how that would strain the Internet.
Q. Please do so.
A. It doesn't matter what that volume is. If you take Napster to be a problem and 10,000, 100,000 or a million and you suddenly just translated 3 megabytes into 650 megabytes, then I could talk about that.
MR. COOPER: I would still like a foundation if I could, your Honor.
THE COURT: I think you need it.
MR. HERNSTADT: I am asking him to assume -- he stated he knows the size of a Napster file. I am asking him to assume there are tens of thousands --
THE COURT: Look, this is a little bit along these lines, you have the Tappan Zee bridge going across the Hudson River up there, and we don't know how many cars are going across it, and so far we don't know how many lanes it is and you are saying if instead of whatever numbers of cars are going across it, we had a lot more very big trucks, would there be a problem, and I think you can see that there are some problems with that question.
MR. GARBUS: Your Honor, can we take a five-minute break?
THE COURT: Yes.
Q. Professor Peterson, have you ever heard of DivX?
A. I heard of DivX, the intake for compression tool, yes.
Q. Do you know what -- do you understand a part of this lawsuit is about the threat that plaintiff has alleged will be posed by movies being on DVDs being decrypted by DeCSS compressed to a 150-megabyte file and then sent on the Internet?
A. Yes, I understand that's the basic idea.
Q. Does that as a new technology and new threat -- in other words, a year ago, DeCSS has been around since approximately October of 1999.
THE COURT: Is there a question?
MR. HERNSTADT: Yes.
Q. Let me ask you to assume that as of July 2000, there is additional traffic on the Internet consisting of these 650-megabyte DivX files of DVD movies?
A. If people started to transmit 650-megabyte DivX --
MR. COOPER: Your Honor, is there a question?
THE COURT: There is not yet.
Patience, Mr. Peterson.
Q. My question to you, Professor Peterson, based on your experience, do you have an opinion as to what the effect on the Internet would be posed by a new flow of 650-megabyte files being added to it?
MR. COOPER: Objection to the form. It is an incomplete hypothetical.
THE COURT: It sure is. I am going to hear it sooner or later, so I may as well hear it now and then I will ask the next question and then we will be past this I think.
Go ahead, answer.
A. I believe the question being asked is if the transfer of 650-megabyte files in the Internet -- I'm not sure if that's what he asked -- I am sorry. I am having a little trouble knowing exactly what it is I should answer.
THE COURT: I think I know where Mr. Hernstadt is going and I will help him get there.
The net has a finite capacity today, right?
THE WITNESS: Correct.
THE COURT: It has whatever level of congestion or lack of congestion that it has, right?
THE WITNESS: Right.
THE COURT: If there is a big new load placed on it, depending on how big the load is and what the current capacity is, it may or may not put a strain on the capacity of the system, true?
THE WITNESS: True.
THE COURT: When networks such as the Internet in the past have encountered limitations due to the volume of traffic pressing their capacity, the tendency has been to expand the capacity, right?
THE WITNESS: Right.
THE COURT: Kind of like the interstate highway system?
THE WITNESS: That's an accurate analogy.
THE COURT: All right, let's go, Mr. Hernstadt.
MR. HERNSTADT: Thank you. Actually, I thought you were doing very well, your Honor.
Q. Professor Peterson, in such an instance, how much of an expansion would there have to be?
A. Well --
MR. COOPER: Your Honor.
THE COURT: Obviously the answer is it depends. How many messages, what the capacity is, whether there is overcapacity or undercapacity, unless you have got some specifics here, you are nowhere, and even if you have the specifics, you have to address the expansion question.
Q. If we are talking about the addition of 650-megabyte files being traded or being sent via the Internet by let's say -- and let us assume for the purposes of this at an additional rate of 10,000, 10,000 650-megabyte files per day, will that pose a strain on the Internet?
A. I can't say whether 10,000 transfers exactly would pose a strain. What I can say, if you look at the Internet today as to what is a common-sized file that's transferred and make the assumption that the Internet is engineered for what is happening today, that you see files in the neighborhood of like the -- like the music example, MP3, 3, 4, 5, 6, 7 megabytes, that's a typical transfer file size at the high end. There are certainly smaller transfers, but that is considered to be a sizable transfer in today's Internet, 650 megabytes is two orders of magnitude or a hundred times larger than that.
Q. And based upon your experience, do you have an opinion as to how long it would take for the backbone of the Internet to be increased by two orders of magnitude?
MR. COOPER: No foundation for that question, your Honor.
THE COURT: Sustained.
Q. Professor Peterson, do you have any experience with the growth of the backbone of the Internet?
A. Yes, I do.
Q. Do you know how fast the Internet, the backbone of the Internet, has developed, how much speed on the Internet has increased over the last ten year?
A. Yes, I could walk through that if you'd like.
Q. Please.
MR. COOPER: Your Honor, I would like to have some foundation for the information the professor is about to give.
THE COURT: I'm satisfied. Overruled.
A. Sir, there are different ways of measuring exactly what we are talking about here, but let me give you a couple of example ways of looking at this.
If you start in 1990, approximately ten years ago, the Internet backbone at that time run by the National Science Foundation consisted of 1.5 megabits per second links. In 1993 that was upgraded to 45 megabit per second links.
THE COURT: What was the second one?
THE WITNESS: 45 megabits. If you go to 1995, we are now seeing some new technology introduced, we start to see the commercial carriers become bigger and bigger players. A cutting age network that was a follow onto the Nation Science Foundation's network was running at 155 megabits per second. That was the cutting edge technology in 1995 for the long haul lengths that make up the Internet.
If you keep following that history, and I don't have an exact date here, but it's in the '98 neighborhood, I don't know exactly when this particular turnover took place, we started to go see the OC12 that we were talking about a little earlier in the backbone, 622 megabits per second.
Today you can find OC48 links, they are at 2.4 gigabits. So if you look at the peak technology available over a ten year period, you will see that it's increased two orders of magnitude over that ten year period, if I've got my numbers right.
If you focus just on the last five years, which I think is probably a little bit more appropriate because that's the technology that's carrying us today, OC3, OC12, OC48, we've gone from bandwidths measured in the hundreds of megabits per second to gigabits per second. That's one order of magnitude improvement in the backbone's capacity in a five year period. It could be a little bit more precise, but for now I'll stay with orders of magnitude.
We are looking at if you take the assumption that you need to improve the capacity of Internet by two orders of magnitude, so that 650 megabyte file transfers, because as common place as today, 3 megabyte or 4 or 5 megabyte transfers, that's going to take two orders of magnitude improvement in capacity. As I just said, it was a five year period to see the last order of magnitude improvement.
Q. Could you define what is an order of magnitude?
A. Factor of ten. Two orders of magnitude is a factor of 100.
Q. What is the connection between the increased capacity of the backbone and the increased connection speed for the average consumer, connection to the home?
MR. COOPER: Can we have a foundation, your Honor?
THE COURT: I don't even understand the question. Try again.
Q. Professor Peterson, is there a connection between how fast a connection is available to the home and how much capacity is available on the backbone?
A. Yes, because more consumers in the home start sending in and receiving data, that data is traveling over the shared capacity of the backbone, the backbone capacity has to keep pace as you add more users or you add larger files that those users are transferring.
Q. Professor Peterson, in your opinion, what would be the effect on the effective transfer schemes of files if the average file size being transferred increased but the Internet backbone did not?
MR. COOPER: I object to the form of the question, because it's an incomplete hypothetical, and I think it still lacks foundation. I think it's the same question.
THE COURT: Look, I am going to take it, but let me say this: Obviously I have a lot of respect for Professor Peterson's expertise, but this just has so many limitations that it's close to being of no value, because there are so many factors here that you are not controlling for and so many things that we don't know about, that it's just not of much help. But go ahead.
Q. Professor Peterson, what are the factors that determine the transfer rate that a home user would obtain when sending a file from his or her home to somebody else?
A. The factors that would come into play would be the capacity of the links between the sender and receiver, and we have already been talking about the backbone, but it might most likely be limited by those two edge links which would be the uplink speed of the sender and the download speed of the receiver, because these links are typically not symmetric into the home. And while I may be the only one using my end link, the links that are in the middle of the network are being shared with thousands and millions of other users, and so congestion is going to happen on those links, and of course it depends on the level of congestion exactly what transfer fee I'm going to get.
Q. Is the Internet capacity today sufficient so that congestion is only an occasional problem in terms of slowing transfer rate down?
A. Congestion happens all the time on the Internet today.
Q. If everything else remained the same but the size of the average file being sent increased, is it predictable what the impact would be on the transfer speeds?
MR. COOPER: Same objections, your Honor.
THE COURT: Overruled.
A. There would be increased congestion. I would expect there to be increased congestion.
Q. And what is the connection between increased congestion and transfer speeds?
A. Congestion is probably the predominant factor after the actual link speed that affect the transfer rate.
Q. And to get a sense of what two orders of magnitude means, could you compare that to an increase, for example, in microprocessor speed of two orders of magnitude?
A. Just as an example a lot of people today would consider having a 500 megahertz PC as being pretty good. Two orders of magnitude back in time, that was 5 megahertz, which has been quite a while ago in a lot of people's memory.
MR. HERNSTADT: Thank you very much, Professor Peterson.
THE COURT: Thank you. Mr. Cooper.
Q. Good morning, professor.
A. Good morning.
Q. I believe you testified regarding some information regarding the Internet backbone and made reference to OC12. Those are routers, is that correct?
A. OC12 is a link speed.
Q. Okay. And the speed is 622.08 megabytes, is that correct?
A. I forget if the .08 is correct, but it's 622. Something megabits per second.
Q. And the speed at which the switchers and transfers are I'll to operate now have increased significantly from the OC12, have they not?
A. Today there are OC48 links in the backbone.
Q. Are there not OC96?
A. There are probably some OC96. I'm not aware specifically but that's possible.
Q. Are there not OC92 that have an effective rate of 9.93 megabytes current any use?
A. I'm not aware of their use in the Internet backbone.
Q. Are you aware of their use in connection with work being done at the high speed connectivity consortium?
A. I'm not specifically aware of that consortium.
Q. Have you not heard of the consortium, a consortium that involves the Carnegie Mellon University, Cisco Systems Inc., the Corporation for National Research Initiatives among others?
A. There are lots of consortiums like that. I'm not familiar with that particular one.
Q. Your writing partner in your book is Mr. David, is that correct?
A. Um-hum.
Q. He is a fellow with Cisco Systems, is he not?
A. That's correct.
Q. The only experiment you conducted in connection with your testimony today, as I understand it, was to check the effective download speed of your home DSL, is that correct?
A. That's correct.
Q. And the effective download speed that you experienced was 2 meg, correct?
A. 2 megabits per second, yes.
MR. COOPER: I have no further questions, your Honor.
THE COURT: Mr. Hernstadt.
Q. One question. Professor Peterson, what is your Internet connection from your home?
A. It's a DSL.
Q. Where does it go?
A. It goes directly into the department, so I have a leased line directly into the department, so the department is in essence my ISP.
Q. What is the connection of your department?
A. The department into the Internet?
Q. Yes.
A. We are connected by 100 megabit into the campus. The campus is then connected to the Internet at I believe 50 megabits per second.
MR. HERNSTADT: Thank you very much.
THE COURT: Professor Peterson. Thank you very much.
MR. ATLAS: We are going to be calling Professor Peter Ramadage. I wonder if we could have a short break so he can set up a laptop computer.
THE COURT: Sure. We will take 15 minutes.
THE COURT: Mr. Atlas.
MR. ATLAS: Good morning, your Honor. Defense calls professor Peter Ramadage.
DEPUTY COURT CLERK: State your name, spelling your last name.
THE WITNESS: Peter Ramadage, R-A-M-A-D-G-E.
THE COURT: Proceed, Mr. Atlas, please.
Q. Professor Ramadage, where are you presently employed?
A. Princeton University.
Q. What do you do at Princeton?
A. A professor in the department of electrical engineering at Princeton University, so I am engaged in teaching both graduate and undergraduate students, and also research.
Q. Do you teach in any specialized area?
A. Yes, I do teaching and research in the area of digital video libraries, digital signal processing for video, search techniques for digital video, video compression and transcoding of digital video.
Q. Could you briefly go through each one of those areas in which you teach and just describe them for the Court, please.
A. My primary focus at the moment is in digital video libraries. With the ever increasing amount of digital video that's available, it becomes important to have an indexing, search and browsing mechanism for retrieving video content once it has been archived. We are developing tools which will go into producing systems to achieve that goal. This is a relatively new area, so we are only at the very beginning of the research. We are developing very elementary building blocks for different types of searches, different types of browsing mechanisms to aid in the formation of digital libraries.
Q. Could you describe the area of signal processing for us, please.
A. Okay. Signal processing generally is the area in which you input a given signal, let's suppose it's a video signal, for example, and then you pass those bits that you are waiting through an algorithm, whose purpose is to come up with either a different version of what has been input or to answer some question that the user has input based on the video content that you are searching or inputting into the algorithm.
Q. I think you also mentioned compression technology.
A. Yes.
Q. What do you do in compression technology?
A. Let's restrict our attention to video files. Because video is a very, very intensive signal to convert to digital format, it requires very many bits to convert adequately into the right format. It results in a very large file. Now to store those files in an efficient way, or to transmit them to another person in an efficient way one normally uses a compression technology. That compression technology comes in two forms. It's a form called loss less compression, and in loss less compression the file is transformed into a format which is smaller and requires less space but which can be decompressed and you get back the original content completely without any change. So it's called loss less, because no information was lost.
Another type of compression technology is lossy compression, and lossy compression you are willing to trade off accuracy of the decompressed files, so the decompressed file would be an approximation to the original, but you will benefit by being able to get much, much greater compression. That's typically used for consumer video, video on the Internet, for example, video phones, wireless multimedia, they all use lossy compression.
Q. Are you familiar with any other types of compression technology?
A. Those are the main two. There is also a general purpose compression technology used on computer files. Typically it's under the name of zip files or LZW double compression techniques. That's a loss less compression technology.
Q. You also mentioned transcoding. If you could briefly describe that for us.
A. Okay. There are various applications when after a video has been produced and it has been stored in a compressed format that one needs to actually compress it further or to transform it inn some other way to a different format.
To give you an example, if I have a video stored and I wanted to transmit it to someone over a wireless communication channel, there simply may not be enough bandwidth on the wireless communication channel to transmit the video in a reasonable amount of time in its current format, so you would take that current format and you would transcode it or basically you would take an existing compressed file, process it, and to achieve greater compression or change other attributes of the video such as the frame rate or the frame size to make it better suited to transmit over the wireless communication channel. That would be one application of transcoding.
Q. How long have you taught at Princeton?
A. 16 years.
Q. What degrees do you hold and from what schools?
A. I have two undergraduate degrees, one in physics, one in electrical engineering from the University of New Castle in Australia. I have a masters degree in electrical engineer from the University of New Castle. I have a Ph.D. from the University of Toronto in Canada.
Q. Have you received any professional honors?
A. Yes. I have been awarded a complication medal from my undergraduate institution. I have been awarded a best paper award by the IEEE. I have been awarded several teaching awards both from inside Princeton University and agencies outside Princeton University; NSF research initiation grants; IBM young investigator awards, I think.
Q. What is the IEEE?
A. The Institute of Electrical and Electronic Engineers.
Q. Have you received any teaching awards separate and award from what you described?
A. Those are the main ones.
Q. Have you been published?
A. Yes, I have published over 80 referee journals and conference articles.
MR. ATLAS: I am going to show the witness what we have marked as Defendants' Exhibit BDE. It's a copy. I will let the witness describe what it is.
THE COURT: Any objection?
MR. MERVIS: No objection, your Honor.
THE COURT: Your name is?
MR. MERVIS: Michael Mervis.
THE COURT: BDE is received.
Q. Can you tell us what BDE is?
A. This is my curriculum vitae. I would say it's the latest one that I just produced about two or three weeks ago.
Q. Does this reflect your published articles and conference papers?
A. Yes. Yes, it's got the most recent articles we will be presenting this September at the IEEE conference on image conferencing. Those have been added.
Q. Have you ever testified before as an expert?
A. Not in court, no. I have been employed as an expert witness on other court cases, but I haven't actually testified.
Q. Have you been deposed before as an expert?
A. Yes, I have.
Q. In which case?
A. There is a case I. Omega v. Cyquest concerning the patent infringement on removable media disk drives.
Q. Were you being compensated for your time in that case?
A. Yes, I was. I was being paid an hourly rate of -- it started at $200 an hour and it went up to $250 an hour by the end of the case.
Q. Are you being compensated for your time in this case?
A. No, I am not.
Q. Do I take that to understand that you are offering your service as an expert for no compensation?
A. That's correct. I believed it is important to present my point of view and perhaps the point of view of other researchers in this area, that it's important for academics and researchers in industry to have fair access use of digital content in my own area of research. That happens to be digital video. And I think it's very important for researchers in digital video today to have access to the digital video that's in the marketplace for fair use, use in research. And down the road when this technology is mature I think it would be important for other researchers in disciplines not necessarily related to technology also to have access to this digital information.
Q. Can you describe in a little bit more detail the specific areas of research you are currently engaged in now at Princeton?
A. Okay. Sir, we have I think several projects running currently. One project has to do with searching video by example, so we have stored in a data base a large amount of video. This is a hypothetical example. What we would like to do is someone comes in and says I would like to see what you've got in your data base, clips that look like this example, and they bring with them an example of what they would like to see, what they would like to retrieve from the data base, and we have been working on algorithms for quickly searching through the data base to try and match the example of what is in the data base and pull those thing out of the data base.
Now because the video in the data base is stored in compressed form to save space, it is important that these algorithms actually operate on the compressed video. So we have been developing algorithms that do that. That's one project.
Another project has to do with multicamera video. We have video from two cameras taking a video of a scene simultaneously, and we are creating a synthetic video as seen from a virtual camera on the baseline between the two real cameras. That might have application in replays of sporting events, it might have application in surveillance. The Navy is very interested in this because they are putting cameras on the decks of aircraft carriers, so we will also be talking to the Navy about these possible applications.
Another project is using the information which is embedded in the compressed video to quickly search through that based on camera motion, try to estimate how the camera was moving by using the information embedded in the compressed video. And once you extracted what the camera was doing, that can often help you say what is happening in the video.
To give you a specific example, in a basketball game the camera often follows the ball very closely, so by determining the camera motion you can quite easily pick out things like fast breaks, jump shots, lay-ups and things like this.
Q. Any other areas of research you are currently engaged in?
A. We also are developing some novel compression algorithms. Based on some other work we think we might have some ideas that will lead to novel compression algorithms. These are not general purpose algorithms. These are rather specialized compression algorithms that might be applicable in computer graphics, compressing computer graphics or compressing video game video.
Q. What is the general purpose of your research in this area?
A. We are working towards providing tools for the browsing, manipulation and searching and indexing of digital video. That's our general objective. This is a very new discipline, so we are not working on everything right now. We are working taking the very first steps and working on the very elementary building blocks that would go into building such a system.
Q. When you say this is a new discipline, you are referring specifically to your research or the general research in this area?
A. The general research in this area is relatively new, really has come to the forefront in the past five years.
Q. Do you have any expectation of how this research will develop in the future?
A. The expectation is that after maybe in ten years time, after we have all the elementary pieces worked out, people will start to put these together into commercial systems or even public domain systems, and then people from the humanities, people from the social sciences, as well as people from technology and the sciences will be able to use these tools as part of their research. It will become a research tool for people outside of the immediate technological area where they were developed.
Q. Now in your research, and specifically in the development of the algorithms you testified about, do you use digital content?
A. Almost exclusively everything is based on digital content.
Q. How do you use the digital content?
A. One of the advantages of having digital video is that you can search through it in a very quick way. Digital video enables many things which are not possible with analog video. You can search through the video, you can jump into it in a random access type of way rather than sequentially have to start from the beginning. You can store it very conveniently, and you can create data bases and libraries of it very conveniently. The idea is you can create a library of video content, both video, sound as well as text.
Q. What are the sources of digital video content that you use in your research?
A. We have a variety of sources, and I also should tell you that at different stages of the research we use different types of video, so we have our own camera, it's a digital camera and it stores its video on a high quality digital tape. From there we can transcode it into different formats, whatever format we find most convenient. We find MPEG1 the most convenient to work with, so we often transcode into MPEG 1 format.
Q. Explain what MPEG1 is.
A. MPEG 1 -- there are various standard compression technologies. One of the very first is called MPEG1. MPEG stands for Motion Picture Expert Group. It was a consortium of people interested, industries interested in digital video, as well as representatives of the standards organizations, and they produced over a period of three to four years an ISO standard called MPEG1.
We also download pieces of video that other researchers have, and they make small clips of video available on their web pages, either displaying the result of their algorithms, or often in conjunction with that they will put up the original video, unprocessed video, to allow other people to try to replicated their results on videos. Those are very short videos, less than ten seconds.
Occasionally my students are able to download some digital video from the web that a movie studio has put up as a publicity piece for a movie or something like this. So we also have something like that.
In addition, on two occasions we have been able to negotiate through an industrial partner permission to use an extensive piece of video, copyrighted video from the content producer. That is subject to much more restricted use.
Q. Those are the four primary sources of digital content you have available to you now?
A. There is another source, and that is we can take analog tapes and convert them into digital form. Several years ago that was how we relied for getting digital video, but it wasn't totally satisfactory. It's subject to the noise of the analog recording process, then the noise of the analog playback process, and then the peculiarity of the particular digitizer that you use and compression hardware that you use to actually do the digitization and compression. So we prefer not to have to rely on that too much.
As I said, algorithms rely on processing the compressed domain video, and we don't want to get tied to a particular compressor, a particular piece of hardware that does the compression, because then maybe our algorithms will only work with that particular piece of hardware, so it's important for us not to get too dependent on that mechanism.
Q. In terms of the variety of digital content that you have just gone through, the five categories, do you find the variety available in those categories best suits the type of work you're doing?
A. There are problems with each of those video sources that I have mentioned. Let me elaborate on that a little bit.
First we have our own camera, but it's quite a steep learning curve to learn how to use the digital camera, so our graduate students spend some time learning it if they need to produce video, but the resultant video is not particularly high quality. They are not professional cameramen, and they are faced with various hurdles that they have to come up with, and they are quite innovative in trying to overcome those hurdles, but the resulting video is not commercial quality video. For example, we can't hold the camera very steady. It's a hand-held camera. We can't take multicamera video. We only have one camera. And we can't control the lighting very well.
The video that we download from the web from other researchers is typically very, very short and sometimes has a lower frame rate than we would like to work with, and sometimes a very small frame size, small number of pixels in it.
Video that we digitize from analog tape I think I said already there is a couple of problems with that. I won't go over those again.
By far the best quality digital video that we can obtain is from DVDs.
Q. Have you heard of DeCSS?
A. Yes, I have.
Q. Have you used DeCSS?
A. Yes, I have. I have used it. I went to the --
Q. Wait. What do you understand DeCSS to be?
A. It's a program which will read the contents, the table of contents of a DVD disk, and then you can ask it to descramble the scrambled VOB files, the video object files on that disk, and store them to your hard drive.
Q. You testified a moment ago that you used DeCSS. How did you obtain DeCSS?
A. I went to a search engine, Google.com and I just typed in DeCSS and did a search. It came up with about over 7,000 hits, so I did a bit of a search through those hits until I found a site that had the software, and I downloaded the source and executable program.
Q. Do you recall the site you downloaded it from?
A. No, because it involved a search through all of the various hits I don't actually remember the site I eventually found it on. Sometimes when you go to these sites you don't actually end up on the front page of the site, you end up on some lower page that has the feel you want, but it's not immediately clear what site this is ultimately connected to.
Q. Do you know whether it's 2600.com?
A. I don't believe it was 2600.com, no.
Q. What form was DeCSS in when you downloaded it?
A. It was a zip file which is a loss less compression, that's a general type of loss less compression used to compress general computer files. When I decompressed that, I believe it gave me the source, the executable and maybe another document, I can't remember, a "read me" file or something like that.
Q. Do you have an opinion on whether DeCSS would be useful to you in your area of research?
MR. MERVIS: Objection, your Honor. There is no foundation.
THE COURT: Overruled.
A. My initial experiments have indicated that's by far the best source of high quality digital video available to us today.
Q. What is the best?
A. The DVD. In terms of the breadth of video that's available to us, the wide variety of video available to us from various sources, and the high quality of the content, DVDs are the best source for us.
Q. What I'm asking you is do you have an opinion on whether the DeCSS utility would be useful to you in your area of research?
A. Oh, absolutely, because the video content on DVDs is scrambled, and so to get access to it we have to unscramble it and that's exactly what DeCSS does, it unscrambles that video content.
Q. If you were to have access to a wide variety of high quality digital content like on DVDs, why would that be helpful to your research?
A. Okay. Initially when we first start developing an algorithm, we usually use very short pieces of video, because videos are a very time consuming object to work with and it takes a lot of space. But after we've got the prototype working, it's very important to test the algorithm on a wide variety of different video. It's important for two reasons. First, you want to make sure your algorithm isn't somehow dependent on the type of video you took or the type of encoder you used. That's step number one.
Step two is you would like to search for video for which it doesn't work, and to do that you need to get out there and search through a whole range of different types of video. You are specifically looking for video where your algorithm fails to help you improve your algorithm or maybe start up a different research direction.
Q. In order to use the video, the high quality video that's available on DVDs, do you have an understanding of whether you need to decrypt them first?
A. Yes. There are several types of files in the DVDs. There are files with the extension IFO, which I believe is an abbreviation for information, and those contain like a table of content type information about what is on the DVD. There are files with the extension BUP, which I believe stands for back up. Those I think are back-ups for the IFO files. Then there are files with the extension VOB, which I believe is an abbreviation for video object. And those actually contain the video and those are scrambled, and those are the things that need to be unscrambled before you can actually use the video.
Now I should also add that that video is already in a compressed form. It's in a compressed form called MPEG2, which was the second extension of the ISO standard from MPEG1 to MPEG2, and that dealt with a higher quality video. The initial base standard for MPEG2 was intended to produce compressed video of comparable quality to broadcast video. But it also includes higher level video standards as well.
Q. In terms of the digital video content that's commercially available on DVDs, is that preferable to the digital content that you described before, the digital content that's currently available here?
A. Yes, it's very high quality, clean, no noise. It is already digitized, which is excellent, which means we avoid having to digitize it ourselves and then pick out any peculiarities our own digitizer exhibits. So, it's a very sound and preferable source of digital content. Also because of the wide variety of DVDs available, it satisfies our need for a large source of different varieties of video.
And in addition, I want to add one other thing. When we use our own camera we try to avoid introducing any bias. We don't want to sort of take video which is too favorable to what we are trying to do, because the scientific method demands that if you want to thoroughly test your algorithm you have to use the video which has been taken independently by somebody else. That's a basic fundamental premise of the scientific method.
Q. Is there a relationship between the amount or variety of digital video that you would use in connection with your research and the confidence you would have in the results of your research?
A. Absolutely. One of the criticisms -- I have been to conferences. I have also given talks in industry, and one of the criticisms that industry often has mentioned is that you really need to test your algorithms on a wider variety of video. I often hear that from people in the industry.
Q. Are there any other applications of your research that would benefit from having access to the high quality digital content of DVDs?
A. I think I have covered the main points.
Q. In terms of compression technology, do you use compression technology in your research?
A. Yes, as I have said, our algorithms are designed to work with compressed files, and because of that we need to have a working knowledge of the compression technologies that are employed. We also do our own transcoding of video from different compression standards to a second compression standard in order to test our algorithms on a variety of compression standards.
Q. I believe earlier you testified that there was lossy compression and loss less compression?
A. Yes.
Q. Do you know what type of compression is used on consumer-oriented video like the DVDs you buy in a store?
A. Yes, both the MPEG1 standard and the MPEG2 standard are lossy compression technologies. That means when the video is compressed, information is thrown away. If it's a good encoder, a good compressing algorithm, it will first try to throw away information which is least perceptually significant, but the more compression you ask for, the more bits it has to discard or the more information it has to discard, and eventually it is discarding important information, and that shows up as artifacts in the resultant video when you uncompress it.
Q. As a general matter, why would you use lossy compression if you can use loss less compression?
A. Okay. Loss less compression that can achieve compression factors of 2 is quite typical. If you are very lucky you might get higher than 2. So, a 2 gigabyte file would be reduced to 1 gigabyte with a compression factor of 2. By applying loss compression, you can -- I'm quoting here from the MPEG standard -- you can achieve compression factors of around 20 to 30 without any visible perceptual difference between the uncompressed video and the compressed video. So, that's a factor of ten better at least than the loss less compression technology. And in practice you often find compression factors as high as 40 used.
Q. Now, could you just describe for us a little bit in greater detail as you use more and more compression on content what happens to that content.
A. Okay. Almost all of these compression technologies are block based. What I mean by that is that each frame of the video is divided into small blocks, nonoverlapping blocks in the simplest case. These blocks are about 16 by 16, 16 pixels horizontally by 16 pixels vertically.
The compression is based on those elementary blocks, so when you start to throw away too many pieces of information, those blocks don't get represented correctly in the uncompressed video, so you start to actually visibly see these blocks in the uncompressed video, and you start to see miscoloring of the blocks.
One of the things that underlies most of the compression technologies is that high frequency information is discarded first. Now, high frequency information encodes things like edges, where there are sharp transitions, sudden changes in the image, so when you have discarded enough of this high frequency information or too much of this high frequency information, you start to see artifacts at the edge boundaries, a phenomenon called ringing, where there seems to be a time varying fluctuation around the edge, and you can visibly see this in highly compressed video.
Q. Is that what you referred to before as an artifact?
A. That's an artifact. The fact that you can see the blocks is an artifact. The fact that the blocks are miscolored is an artifact, and this ringing is an artifact. There are other artifacts as well, but those are the main ones.
Q. Do you have an understanding of an average size of a DVD film?
A. Well, I have looked at the DVD for the movie Contact, and the total amount of information on that DVD disk was about seven and a half gigabytes. Most DVDs contain the original movie as well as some additional add-ons such as director's comments, or things that were cut from the movie might be added on there, or special effects might be added on.
In the particular case of the DVD Contact, the actual video file and the audio file took up about 6 gigabytes, and the remaining gigabyte and a half were the extras and the add-ons.
Q. Do you have an understanding of how much an average CDR can hold in terms of megabytes or gigabytes?
A. The standard is 650 megabytes.
Q. So, if I wanted to copy a DVD that I went out and purchased and copied it onto a CD, I would have to compress the content to go from 6 or 7 gigabytes down to 650 megabytes?
A. That's correct.
Q. How would that be done?
A. Well, you would use a transcoder. Your video that you have from the DVD after you've descrambled it, you must descramble it first or else it won't work at all. Let's say you descrambled the VOB files, now they are in MPEG2 format. That has a bit rate -- and I will explain what bit rate is in a second -- it has a bit rate of about 6 to 10 megabits per second. Now the bit rate is how many bits are coming out of the player per second in order to display the video on the screen on average. That's an average rate. Sometimes it's higher, sometimes it's lower. But on average it's about 6.7 megabytes per second. You have to now transcode that down to a much, much lower rate.
You have available on the CD a space of 650 megabytes. Let's take the movie Contact. That's a two and a half hour movie, so I have to get two and a half hours at 6.7 megabits per second down into a 650 megabyte disk. If you do the conversion of units to make all the units appropriate, and then work out the math, the bit rate after you have done the transcoding for both the audio and the video needs to be around 590 kilobits per second. So you need to go from 6.7 megabits per second down to 490 kilobits per second.
That's an enormous compression.
Q. Would that type of compression result in artifacts being present on the ultimate product you end up on the CDR?
A. Yes, most definitely. The artifacts would be most visible when there are scene changes, camera motion or when there is movement of objects in the scene.
Just as a point of comparison, MPEG1, the rate for MPEG1 which is generally to be believed below broadcast quality video is 1.5 megabits per second.
Q. Based on your experience, if someone were going to compress a film file to send over the Internet, is it more likely that such a person would use lossy or loss less compression?
A. If they used loss less compression you would take a 6 gigabyte file down to about 3 gigabytes. That is way too big to transmit over the Internet. So that forces you, you must use lossy compression if you are going to get it down to any reasonable size. And even at 650 megabytes that's a very large file.
Q. In terms of the use of lossy compression, are there trade-offs to the user in connection with this type of compression?
A. The user, if you want to do a transcoding from say MPEG2, which is the DVD format, down to a much more highly compressed format, there are various parameters you get to choose. The most important parameter is the bit rate. Because you only have a limited amount of space, you have 650 megabytes, and you have a two and a half hour movie, that determines the bit rate. That's fixed.
Now you can play with other factors. You can change the size of the image. You can make the image smaller. You can change the frame rate so the frame rate of the DVD is 29.97 frames per second. You could attempt to do better by decreasing the frame rate.
Q. What effect would decreasing the frame rate have in terms of viewing the ultimate product?
A. You would see fewer frames per second. If the video was interlaced, which MPEG2 can be an interlaced video, I think the interlacing would be much more prominent at the lower frame rate.
Q. Could you just explain to us what the term "interlacing" refers to.
A. Yes. Broadcast video doesn't present each image in the video all at once on the screen. It actually does it in two passes. In the first pass it draws every second line on the screen. Then 1/60th of a second later it comes back and draws the lines it missed. That's called interlacing. These two scans are interlaced and they are 1/60th of a second apart.
Now if there is motion in the scene, then during that 1/60th per second things will have moved, so one of the problems with interlacing is that you begin to see slight jagged edges around objects that are moving because of the interlacing.
Computer screens don't use interlacing. They use what is called progressive scan, and progressive scan you start at the top and you draw each line sequentially down the screen.
Q. In your opinion, what is the current state of compression technology?
A. Okay. Sir, compression technology has been a very hot and active area of research for about the past 12 years. The MPEG1 standard started around the end of the 1980s, started to meet and form MPEG1 standard. The MPEG2 standard was even started before the MPEG1 standard was finalized in the early 1990s. The JPEG standard was also in the first half of the 1990s. We are now just past, at the end of 1999 the second generation of the JPEG standard, JPEG 2000. At this point compression technology is maturing and we are seeing fewer and fewer gains in the compression for each new generation of technology that comes along.
In the past there have been some interesting suggestions about potential ways of increasing the compression rates dramatically. None of those have panned out yet. In fact some of them have even been put aside now as areas of research that are not likely to be productive.
Q. Looking out for the next five years or so, do you see any breakthroughs in compression technology that would allow a person to compress a file to a greater extent than is currently available now?
MR. MERVIS: Your Honor, I object. There is no foundation for this testimony.
THE COURT: I will take the answer. Overruled.
A. In talking to my colleagues, we often have lunch together, some of them are very very actively involved in the compression community and actually have graduate students working together putting the pieces into the next ISO standards.
THE COURT: Excuse me. I had understood from your earlier testimony that you were offering yourself as an expert on compression, is that right?
THE WITNESS: I am. I also want to let you know that this issue is a hot topic of discussion in the department about where is compression going.
THE COURT: Go ahead.
THE WITNESS: And it seems right now that the only technology which looks promising is the wavelet technology, and that has been the basis of the JPEG 2000 standard which has just recently been issued.
So, it looks like from this point on there is only going to be incremental improvement. There is nothing that is known to be on the horizon which promises drastic gains. Everything right now looks like it's going to be incremental for the next five years. I can't see any further ahead than the next five years, so I don't want to speculate beyond that.
Q. Fair enough. Have you heard the term fractal compression?
A. Yes.
Q. Do you have an understanding of what that is?
A. Around 1988 a researcher by the name of Barnsley proposed this compression technology called fractal compression. I think he has two patents on that technology issued around 1990 and 1991. He formed a company I think which is called Iterated Systems, but since then nothing has really panned out from that technology. The latest I heard in the journals and other reading that I have done is that his latest version produced by his company is not quite as good as JPEG.
THE COURT: Now, isn't there software on the market in the digital photographic area known as genuine fractals?
THE WITNESS: I haven't heard of that software.
THE COURT: Isn't it in commercial use and supported by service bureaus for high compression of digital photographic files?
THE WITNESS: I have no information on that.
THE COURT: All right. Go ahead, Mr. Atlas.
Q. Have you heard the term DivX before?
A. Yes, I have.
Q. What is DivX, as you understand it?
MR. MERVIS: Your Honor, can I be heard on this? I have an objection. This witness was deposed a week ago on July 14, and as of that time the testimony was that he heard of DivX, that he downloaded some things from the Internet that he thought might be DivX, but he had done no further work on the subject. So, whatever we are going to hear from the witness in response to that question is something we have had no discovery on, no notice of, and we will not have any ability to effectively cross-examine.
THE COURT: Mr. Atlas, what about it?
MR. ATLAS: Actually at his deposition he testified about what he had done with DiVX and what he intended to do with DivX between the time of his deposition and the time he would be testifying, and I suggest that if plaintiffs wanted any further deposition before trial, they had an opportunity to seek it. But I think the witness clearly put them on notice of what he intended to do and what he looked to get out of it.
THE COURT: Let me see the deposition and tell me what you're referring to.
MR. MERVIS: Yes, your Honor. Can I approach?
THE COURT: I'm sure you will tell me the numbers.
MR. MERVIS: The subject of the DivX was covered on the following pages: 15 through 17, 21 through 22, 25 to --
THE COURT: I can't remember them all that fast.
MR. MERVIS: I'm sorry. Perhaps you let me know when you're ready.
THE COURT: Yes. What's after page 17?
MR. MERVIS: Pages 21 to 22, your Honor.
THE COURT: Next?
MR. MERVIS: 25 through 28, Judge.
THE COURT: Next.
MR. MERVIS: Page 70, your Honor.
THE COURT: Was there any representation made to you about whether or not he would testify in this area?
MR. MERVIS: The only representation that I know of, your Honor, was that his studies were continuing. And I would simply point out in response to my adversary's comment, this is expert testimony. Of course obviously we have been proceeding somewhat informally, but the notion that we would be given no notice of any further developments in this expert's experiments I think is inconsistent with the general standards of expert discovery. All of a sudden we are here today hearing about DiVX, and we have never heard a peep out of defense counsel.
MR. ATLAS: Your Honor, at page 16 he was asked whether he had made any evaluation of DivX. He said he was in the process of doing it.
THE COURT: I read it.
MR. ATLAS: You read that. I don't think this comes as any surprise, and we have been talking to each other every day -- not Mr. Mervis and I -- but they certainly were aware, and I think if they wanted further examination of this witness before trial, with eight letters a day, I think they could have included that in a letter.
THE COURT: Is that all you get?
MR. ATLAS: It's not a surprise. I think it's clear, given the time constraint, he put them on notice that he would be doing this before trial.
THE COURT: I will hear the evidence.
MR. MERVIS: Your Honor, may I make just one further application? I am prepared to cross-examine Professor Ramadage on everything so far. I don't know what he is going to say right now, but I do think that at the very least we should have the opportunity -- and I understand the Court wishes to hear the evidence now, but I do think we should have the opportunity to take the witness's deposition on these points and perhaps bring him back or perhaps just submit that deposition testimony, because I don't think it's appropriate, and I don't think it's fair to the Court, the witness or the defense counsel for me to be doing cross-examination on that topic. I think it's a better use of time to have a short deposition and we can submit the appropriate exerts if there are not --
THE COURT: Why not do that?
MR. ATLAS: I have no objection to that.
THE COURT: It's easy. You will finish your direct, Mr. Mervis will cross-examine him to wherever he gets to where he wants to insert DivX. You will get a deposition done in the next three days sometime, indeed before the trial is over. I certainly don't necessarily want to interfere with the professor's weekend if I don't have to. Lawyers are different.
MR. MERVIS: My son might disagree, your Honor, but I understand.
THE COURT: I understand, but it's an occupational hazard for sons of lawyers. And then we will proceed that way.
MR. MERVIS: Thank you.
THE COURT: All right.
MR. ATLAS: Could you repeat back the last question and answer, please.
THE COURT: I might observe this, and I do so because I want to be corrected if I misunderstand. Don't I have in evidence here Sleepless in Seattle and the Matrix, both in the form of the original DVD and in the form of a DeCSS decoded DivX'd compressed CD-ROM copy? Don't I have that?
MR. MERVIS: You do, your Honor, that's correct. I'm not sure we have moved the -- yes, we have. Your Honor, you do have both of them.
THE COURT: Okay. So I mean I suppose the purpose of all that is to ask me to look at the two movies and see to what extent I think that the copy is or isn't a commercial threat in the marketplace.
MR. ATLAS: That's part of it, your Honor. I think your Honor permitting, the witness has done his own test along the lines of what Mr. Shamos did. It will not take very long.
THE COURT: That's fine. I said I would hear it, but I'm just, you know, I don't know what form the testimony is coming in in, but I think movie fans probably don't think in terms of artifacts per movie. I think they look at the movie and they say is this an acceptable quality to watch.
MR. ATLAS: I agree. That's exactly where we are going in terms of whether it is acceptable quality. Can I hear the Last question and answer.
A. DivX is what is called a codec, and a codec is an abbreviation of two words, coder, decoder. So when you compress a video, you also have to at some later time uncompress it or decompress it. Each coder comes together with its appropriate decoder. That pair is called a codec. And DivX is an example of a codec, a coder/decoder pair.
Q. Have you used a DivX before?
A. Yes, I downloaded it from the web, installed it on my laptop computer and on the work station in my office. Then I employed a program called flask MPEG.
Q. Is this in connection with your work for this lawsuit?
A. Yes, it was with this lawsuit. I used a program called flask MPEG to select the DivX codec. Now, let me add here that there were actually two DivX codecs, one called a low motion codec and one called a fast motion codec.
I experimented with both of these codecs, and I took the descrambled VOB files from the movie Contact and I passed them through this codec to compress them further down to a much lower bit rate. I said before we need to go down to an average of 590 kilobits per second. That's for both the video and the audio. If we subtract off from that 590 128 kilobits per second for the audio, then that tells us what our bit rate has to be for the video, and so I have employed a bit rate of about 450 kilobits per second to further compress the video for the movie Contact into a compressed file in what is called an AVI format. AVI is a Microsoft format.
Q. What size are you looking to compress?
A. That was to get it down to 650 megabytes.
Q. Why was that?
A. That's the size you can write onto a CD writable disk.
Q. How long, the point we are at now in terms of this experiment you conducted, can you tell me with respect to each step how long it took?
A. Roughly. To download DeCSS took maybe three-quarters of an hour. To use it to descramble all of the VOB files on the DVD took about an hour. Then to use the DivX codec through the flask MPEG program to transcode it down to about 650 megabytes, that was done in various stages because each VOB file is about a gigabyte and there are about seven of them in the movie. It took about two and a half hours per gigabyte. At least one of them was not playable after I had transferred it, there was some error, so I had to redo that one. After it was all said and done, I would say it took about 20 hours to do the transcoding.
Q. What did you do next in your experiment?
A. I needed to ascertain whether this -- all of these codecs, including the DivX codec are what are call variable bit rate codecs, so even though you tell it I want 450 kilobits per second, it actually decides itself how many bits to use based on the -- what's happening in the video at any given time.
If there is lots of fast motion, it will use more bits and if there isn't very much action, if it is a very slow scene, it would try to use fewer bits. So it tries to budget the bits and do the best it can depending on how much action there is in the scene. So even though you tell it ahead of time to use about 450 kilobits a second, you may use more, you may use less.
I did an experiment to see exactly how flexible the DivX codecs were. It turns out that one of the codecs, the one called the fast motion codec is very stingy with its bits, it tries to use as few bits as possible to save space, but the result in quality suffers. The low motion codec is very generous with the bits. When more bits are needed, it uses them and it hopes it can save later when the video isn't moving as quickly. Generally, the video content was better using the low motion codec.
Having decided that the low motion codec was the best one to use, I then transcoded in particular -- I am sorry. Let me step back a second. Because the low motion codec is a variable bit rate because, if you say you want 450 kilobits a second doesn't guarantee you will be under 450 kilobits a second. In fact, you tended to go over by about 2 to 5 percent.
Q. So what did you do next in your experiment?
A. So I selected three representative two-minute slices of the video for further examination. These pieces were selected so that they contained some slow motion as well as some fast motion, try to get an average sample of what it is going to do on this slice. Two minutes of video is quite long. That's 3600 frames. And then I transcoded those two-minute segments down to a target rate of 450 kilobits per second and I examined the resultant quality of the video.
For my first example, I actually did it at several rates to see what the effect of the rates would be and to try to keep it of course below the required size and for the next two examples, I just did it at the one rate, set rate of 450 kilobits per second. In all three examples, there are a large number of visible artifacts, a sufficient number in fact that I think the average person would say this stinks.
MR. ATLAS: With the court's permission, I believe the witness can demonstrate the examples he was just talking about on his laptop computer. If your Honor is willing, I think the professor will take us through it.
THE COURT: Sure, let's get the exhibits marked.
MR. ATLAS: I have got Exhibit RDF is a copy that --
THE COURT: Say it once more.
MR. ATLAS: Defendant's Exhibit BDF, the Professor has this material on his hard drive. I have one for the court and one for the defendants.
THE COURT: Are we playing it from the hard drive or off this disk?
MR. ATLAS: We could do it off either.
THE COURT: Let's play it off the disk. I don't know if what is in the hard drive and I don't know if I have a record of what's in the hard drive.
THE WITNESS: In order to do a comparison, I would first like to show the original CD.
THE COURT: Is that marked?
MR. ATLAS: Do you have it? I think I may have to ask you to give up your copy of Contact.
THE COURT: Let's get it marked, please.
MR. ATLAS: Do you have the box it came on?
THE COURT: Mark it on the disk.
MR. ATLAS: Will that affect --
THE COURT: On this side.
THE WITNESS: It shouldn't affect on this side.
THE COURT: The original CD of the movie Contact is Defendant's Exhibit BDG.
Q. Did you purchase this, by the way?
A. I did.
MR. ATLAS: If plaintiff's counsel wants, I will buy you a copy but you seem to have a ton back there.
A. Let me open to the original DVD.
Q. First in terms of viewing it, where would the best place for us to stand be?
A. Let me get it set up. So because it is a laptop screen, the best thing to do it is view it perpendicular to the laptop screen. We can adjust the screen. Please feel free to do that.
THE COURT: It is fine.
A. The best place to stand is right around this little circle here. That's a list of all the files on the DVD. The VOB the encrypted video files. To try it, we double-click on the info-file which is the table of contents and that will start the DVD playing then what I would like to do is show you at least two of the examples from the DVD that I transcoded and that will be the best way of comparing the resultant quality after transcribing to the quality before.
We will skip to the video start and then I think I will jump to one of the scenes. Let's see if we can get there OK. The first scene that I transcoded is this scene. I transcoded the first two minutes starting from roughly around here where you see Jodie Foster get up and start to walk outside. So there is some slow motion at the beginning. Notice how clear that antenna is right there. We will jump to some fast motion. That's enough from that scene.
Let me jump to another part of the DVD. This is my second example. I will fast forward a little bit until I get to the scene that I have transcoded. This is my second example. I have transcoded two minutes starting around here.
Q. Why did you choose this particular scene?
A. Again, I am looking for examples where it contains some fast motion as well as some slow motion.
THE COURT: We will take a recess. Five minutes.
MR. GARBUS: I just saw the professor in the bathroom. He is throwing up. He is very sick, what I would suggest is we take a lunch break.
THE COURT: I guess we have no practical alternative. All right, 2 o'clock. Fine.
MR. GARBUS: I presume he will be all right by 2 o'clock. I know nothing about it. If he is not, we will put somebody else on.
THE COURT: Right, thank you.
AFTERNOON SESSION
2:00 p.m.
THE COURT: Professor, better?
MR. ATLAS: He is. Before we begin, some housekeeping matters in terms of our work for the weekend, depositions and documents. I wanted to have a good idea of how the Court wanted to handle these things if you wanted to take five minutes now or at the end of the day.
THE COURT: Let's do it at the end of the day. Maybe we can get this man on the road before rush hour.
Are we ready for the matinee?
THE WITNESS: Yes.
I am just starting the original DVD. We will see the header first and then I will go to the second one, the second scene.
THE COURT: Right.
THE WITNESS: The second scene will begin around here, last for two minutes. I have selected this scene again because it has both parts where there is not much motion, camera pans as you see here, and other parts where there are lots of moving pictures, so it is sort of a representative two-minute sample. It is not much motion, pan of Jodi Foster, here is a camera pan. Notice the clarity of people against the background. You will see some ladies on top of a van in a second singing. I want you to pay close attention to how clear they took against the blue sky.
The ladies in the green T shirts against the blue sky. This Elvis has something written on the back of his guitar. See if you can read it. So you get the idea. That's the crispness, another slow scene. I go all the way to the point where this gentleman points to the Jodi Foster.
OK, so now let's go to the last example. That's going to begin when part is released right about here and we will see a two-minute clip from the point where I started this video. This again has mixed scenes, some very fast action, a lot of things changing all at once, interspersed with some close-ups of Jodi Foster where there is a little bit of change but not a fast change. This will be the most challenging of the three samples after you are done transcoding.
Notice the individual lines here in this computer-generated display in which she is traveling through this tunnel, they are all clearly visible. And now a slow scene. And then it will take off again and you will see a similar transversal through another tunnel. I think you get the idea.
Let's close the DVD now and I will put this CD, 650 megabyte CD but I have some short samples burnt into the CD.
THE COURT: That is BDF?
MR. ATLAS: It is marked, yes.
Now, let's close the DVD player. And open up that CD which should be down here, right there, and here are my three examples. Let's start with example one. I will play this, it is in AVI format and I will play it through Microsoft media player.
Q. Before you play it, what is AVI?
A. It is a format for video. It was a Microsoft format. The media player is a Microsoft product. It comes standard with the windows operating system. So this has been reduced in size from the original frame size of the DVD, so I am going to play this at full screen and this is the first scene that I showed you on the DVD.
Notice the fuzziness of the general appearance. Look at all the detail lost around the antenna area. If you look closely around edges, you will see the ringing effect, the halos around edges and along the tree line. This is the slow scene, the slow part of the scene so this isn't the challenging part of the scene yet.
These individual pieces aren't as crisp as they were in the original DVD. Now here is the fast part. Notice all of the artifacts, there is a phenomena called contouring where you have big spreads of constant color. It is trying to code this but it doesn't have enough bits. It is saying I don't have enough bits for this, let me use fewer bits for this whole area. You will see here in the Jodi Foster area a pattern of blocks, that's the block artifact that I discussed before. If we wait until she gets out of the car, we will see it more prominently on the back of her shirt. Right there.
Notice the loss of detail of all of the faces in the scene. Again, the coder, transcoder is trying to save bits and place the bits were things are graphically changing, so all the detail on the background has been lost. You can tell it is rocks, but all of the fuzziness in here, and you can see the detail has been lost. That's the first example. It is a mixture, as I pointed out, of slow and fast.
We will close that one and start the second example. The second example is the crowd scene. Again, you notice the general fuzziness, not as crisp as before. Notice the ringing artifacts around all of the moving edges. You will see the effect of the block, blockiness there. The slow part, it is a little bit better on the slow part. Ringing, see the ringing around that lady just a second ago.
Whenever there is a scene change where there is a rapid change, you notice all these artifacts more prominently. The slow part, it does better on the slow parts. Ringing around there. Let me stop it for a second and you can see all the block artifacts there right across the scene. That contributes to the general fuzziness of the appearance. There are three ladies, green ladies coming up. Generally much fuzzier, ringed, with the ringed artifacts. Here is Elvis, see the back of his guitar, it is gone.
THE COURT: I wouldn't say it was quite gone. It was not as distinct but it was not gone.
THE WITNESS: OK. That's the end of the second example.
And the third example is the last scene and the part that leaves the launch station and starts to go through the tunnel. Here again, you see it struggling, it doesn't have enough bits to fill in the detail. Notice all the block artifacts right there. It is a little better on the close-up scene where it is closer, lot of block artifacts. Everything is changing here very rapidly. It just can't keep up. The lines of the tunnel are not distinct, disappeared. We just see the general color.
The slow part again, contouring artifacts. Rapid change, you see the block artifacts all over the scene there. Again, all the lines are lost, individual lines are lost, block artifacts clearly visible. And I can stop it and you can see all of the individual block artifacts. In fact, this is a constant color, the contouring effect, it doesn't have enough bits to fill in the colors that were there and says I am going to fill in that patch with just one color. You have seen all of the artifacts that are present.
THE COURT: OK, thank you.
MR. ATLAS: I just have a few other questions. If I can move BDF and BDG into evidence.
THE COURT: Any objection?
MR. MERVIS: Only with respect to what we might see in the deposition, your Honor.
THE COURT: All right, received on that basis.
(Defendant's Exhibits BDF and BDG received in evidence)
Q. A few more questions, Professor.
Have you heard of the MPEG committee?
A. Yes, there are several MPEG committees. There was an MPEG 1 committee, an MPEG 2 committee. There was for a brief period of time an MPEG 3 committee and MPEG 4 committee. Those are all concerned with designing standards for video compression.
Q. In terms of the MPEG 2 committee, is that the MPEG committee that determined the standards for DVDs?
A. The MPEG 2 committee determined a standard and that standard, part of what's called the baseline MPEG 2 standard is what was used to encode and compress the video on that DVD Contact that I used. I believe that is quite standard.
Q. Do you know who makes up the MPEG 2 committee?
MR. MERVIS: Objection, your Honor, relevance.
THE COURT: What's the relevance, Mr. Atlas?
MR. ATLAS: I think it will be clear in a minute.
THE COURT: Why don't you tell me the relevance.
MR. ATLAS: The MPEG committee, they have issued certain findings in books and articles, they do studies of different compression techniques and they have issued what they consider findings on what level of compression is acceptable for the consumer viewing.
THE COURT: How is that any better than your opinion or mine?
MR. ATLAS: This is from a committee that is made up of I believe motion picture companies and some of the computer companies. These are the people who are in charge of deciding what a good standard is for consumer viewing and I was going to have the professor testify about the standards that they have said are appropriate for consumers.
THE COURT: What's the basis, Professor, of your knowledge, if any, about who is on the MPEG committee?
THE WITNESS: I don't know any of the individual's names on the committee. I do know they are made up of representatives from many industries and the international standards office.
THE COURT: Do you know how many different organizations are represented on the committee?
THE WITNESS: A large number but I don't know the exact number.
THE COURT: Do you know whether they adopt standards only by unanimity or by some vote short of unanimity?
THE WITNESS: I believe it is a vote short of unanimity.
THE COURT: Go ahead, Mr. Atlas. We will see if there is anything that the witness can testify to.
Q. Are you aware of any testing performed by the MPEG committee, I gather the MPEG 2 committee, regarding different compression technology?
A. All of the MPEG committees extensively test -- they call for submissions or proposals for things to be included in the standard and there is extensive testing of the submissions. Then a final draft of standards is proposed. These are extensively tested. It is my understanding from my reading of articles and books they even do subjective testing with bringing individuals in to rate the quality of the resultant video.
MR. MERVIS: I would object and move to strike the testimony on the grounds it constitutes hearsay.
THE COURT: I think so. It is stricken.
MR. ATLAS: I think these are things considered by the expert in terms of giving his impression on compression technology. This is part of the general literature.
THE COURT: If we are going to take what's part of the general literature, we don't have a hearsay rule, do we, as part of published materials?
MR. ATLAS: I will ask the witness in terms of whether he relies on this material for -- I would like to ask the witness whether he relied at all on these type of reports in connection with any of the opinions he has given on compression technology.
THE COURT: You better get, tie it up to a specific opinion he has given in this case.
MR. ATLAS: May I take a minute?
MR. ATLAS: I have no further questions of this witness, your Honor.
THE COURT: All right. Thank you. Cross-examination Mr. Mervis?
MR. MERVIS: Thank you, your Honor.
Q. Good afternoon, Professor Ramadge. Is it your belief that you need to get access to encrypted DVD materials in order to further your research into digital video?
A. I believe it would provide us with a very widespread, reliable, high quality source of digital video which would be a great benefit to our research.
Q. I see. The type of research that you described on your direct, you have been conducting that sort of research for about five years, isn't that right?
A. Correct.
Q. And the first time that you ever encrypted a DVD was in connection with this lawsuit, isn't that correct?
A. That's correct.
Q. Now, on direct, you talked about working with industrial partners, is that right?
A. Yes.
Q. Who are these industrial partners?
A. One of them is IBM. They have given us or negotiated us the rights to use two pieces of video. The other one is the Navy.
Q. And is it your contemplation that one of the end products of the research you are developing now would be to develop commercial tools?
A. No, I am not in the process of developing commercial tools myself. We are developing elementary pieces or elementary blocks which later might be put together by people who develop commercial tools.
Q. To your knowledge, would that be something, is that something that your industrial partners are contemplating?
A. That's something they are very interested in, yes.
THE COURT: Let me ask you, you said the Navy, this technology that you have addressed in terms of indexing, searching and browsing, without by any means disclosing any confidential information, is of a great deal of interest to the military, is it not?
THE WITNESS: It is.
THE COURT: It might, for example, be used to enable targets to be identified electronically in aircraft that move too quickly to permit a human being to identify the targets on their own, right?
THE WITNESS: Certainly aspects of technology could be used for such purposes but that's not the area of my research.
THE COURT: No. I didn't suggest that. Let's leave it at that.
I suppose the Department of Defense has an ability to give you high quality video to work with, doesn't it?
THE WITNESS: They have various constraints on the cameras. The cameras must be extremely robust because of the environment and conditions in which they operate, so they have a range of different qualities of video. We are working actually with the Navy with a lower quality video.
THE COURT: All right, go ahead.
Q. You testified on direct one of your sources, current sources of digital video content was content that your industrial partners got from copyright owners by a license, is that correct?
A. I don't know if it was by license, it was by some agreement which I wasn't a party to.
Q. Your understanding is your industrial partners went out and talked to the copyright owners and got permission to let you use the content?
A. I don't know because I wasn't part of the negotiation. I don't know who contacted who first to negotiate the permission to use the copyrighted material.
Q. So is it fair to say that you have no firsthand knowledge of any of your industrial partners ever approaching any of the plaintiffs for permission to use any of their DVD products and having that permission denied?
A. I wasn't present at such meetings.
Q. Is it correct, Professor Ramadge that lossy compression is considered to be acceptable compression for consumer use?
A. There is a whole range of lossy compression. Certain ranges of lossy compression have been tested and have been agreed upon as acceptable for consumer use.
Q. Now, I am correct, am I not, that if you compress digital content to 650 megabytes, you can put that on a single CD-Rom, is that correct?
A. The file size has to be 650 megabytes, that is correct.
Q. And to do this, you need a few pieces of equipment, right, a computer with proper software, you need a CD-writable drive, and need the CD, correct?
A. Correct.
Q. And the computer that you need would run you roughly 2,000 bucks?
A. I think you need not CD but DVD.
Q. I am sorry. Thank you for correcting me. And the computer would cost about $2,000, right?
A. That's in the right ballpark, yes.
Q. And the DVD drive would cost somewhere between 200 and 300, maybe a little bit less, right?
A. That's correct.
Q. And cost of the black CD, that's a writable CD, that's what, a dollar?
A. Correct.
Q. You testified the film you were working with, Contact, that was two and a half hours?
A. Correct.
Q. It was too long to put on a single CD?
A. No, it is possible to put it on to a single CD. I designed those samples you just viewed, I designed the compression factor to fit the movie Contact to a single CD.
Q. You could have used a lesser degree of compression and put the film on two CDs, correct?
A. Correct.
Q. And the sum total of those two CD's would be $2?
A. Excuse me?
Q. The total cost of two CDs would be $2, right?
A. Yes.
Q. Now, Professor Ramadge, with all of your expertise and experience with digital video, am I correct in understanding that you don't own a DVD, sir?
A. I am sorry, a DVD player? There is a DVD player on my laptop right there.
Q. What do you use for home viewing?
A. I use VHS, a tape player.
Q. You have never used a DVD player at home, have you?
A. I have used that DVD player at home.
Q. Since when?
A. Since I bought the laptop.
Q. When did you buy it?
A. Two years ago. But I don't own a DVD player at home.
Q. The 20 hours that you testified to that it took you to, from beginning to end to complete the DivX-ing process, was that 20 consecutive?
A. How would we count this, the files on the DVD are separated into approximately 1 gigabyte chunks. There are a few smaller chunks because the movie doesn't divide into an even number of 1 gigabyte chunks. Each one-gigabyte file was processed separately. Before I processed the next file, I had to wait for the computer to finish and load in the next file, type in the necessary commands to do that, double-check the parameters to make sure nothing had changed.
After all, if it is going to take a while, you don't want to make a mistake and come back, change the file name where it was stored, check that there was enough empty space on the disk, nothing will go wrong and run it again. It is consecutive in that sense, do one file, stop, do another file.
However, in my initial investigations, I didn't do all the files consecutively. I did some timing analysis based upon largest of the files of one-gigabyte size and estimated how long it would take and set aside certain portions of my time to accomplish the rest.
Q. Am I correct in understanding that you didn't sit there in front of the computer for 20 consecutive hours to complete the task?
A. As I said, it depends how you count this. I didn't sit there for 20 consecutive hours because I didn't do it all in one sitting.
Q. Thank you very much. Is it also correct that certainly a good portion of the time that it took, you had no reason to look at your computer screen or have any other interface with a computer, right?
A. For the purposes of my experiment, I did look occasionally at the computer screen. I wanted to check the bit rate, the current bit rate because it is a variable bit rate coda so even though I say use such-and-such a bit rate, it could be using less or using more. It tries to use the allocated budget in an intelligent way. I periodically checked it to see what the bit rate was.
Q. I understand but it is fair to say a good deal of the DivX-ing process is automated, is that right?
A. It depends what you mean. The programs seem rather delicate. I crashed the program several times. Several times I tried to open the one-gigabyte files and Microsoft media player crashed the system, so I think when you say automated, it creates the impression you press the button and it is done. It wasn't quite ought that automated. You needed to pay certain attention to what you were doing. It was a hands-on process.
Q. You didn't need to pay 20 hours attention?
MR. ATLAS: Objection.
A. I did glance away from the computer screen probably 50 percent of the time at least while it was doing the transcoding.
MR. MERVIS: Thank you, Professor. No further questions.
THE COURT: Thank you. Any redirect, Mr. Atlas?
MR. ATLAS: No further questions.
THE COURT: Thank you. Thank you, Professor.
THE COURT: Next witness?
MR. HERNSTADT: Defendants call Matthew Pavlovich. He also has a computer and I don't know if you prefer he set it up now. It won't take but a few minutes or if you prefer he do it during his testimony when we get to that point --
THE COURT: I am indifferent.
THE WITNESS: If it is not a problem, I can set it up right now.
THE COURT: Let's do it.
Q. Mr. Pavlovich, where do you live?
A. I currently live in Dallas, Texas.
Q. What is your present occupation?
A. I am an -- I work for a new technology start-up Media Driver LLC.
Q. Are you one of the founders of that company?
A. Yes, I am a cofounder and currently the president.
Q. When did you first use a computer?
A. Could you repeat the question?
Q. When did you first use a computer?
A. We got our first computer when I was about 9.
Q. How long ago was that?
A. Thirteen years.
Q. Do you know the Linux operating system?
A. Yes, Linux is an open source alternative to other operating systems on the market. It is developed by individuals in the technology community.
Q. What does open source mean as relates to the Linux --
A. Open source is a term used by people who developed the model, that applications that make up the operating system, that the source code or recipe to program is available publicly for anybody to use. The source code is generally licensed and copyrighted, but the structure of the license makes it so anybody can use it, make modifications, and things of that nature.
Q. When did you first use Linux?
A. I first used Linux when I was a sophomore in high school.
Q. Is it your primary operating system?
A. It has been my primary operating system for the last five years.
Q. How many computers do you have?
A. I have four.
Q. Do you use Linux on all of them?
A. Yes, they all -- all four run Linux.
Q. Can you tell us about your education, please?
A. I went to high school in Texas, senior class president for Marcus High School in Flowermount, Texas. When I went to college, I studied computer engineering at Purdue University.
Q. Did you graduate from Purdue?
A. No, I left Purdue University in mid April. I took a leave of absence to start Media Driver.
Q. Could you tell us about your employment history?
A. I started back when I was in high school, worked for Best Buy Incorporated. I managed the series of PC repair technicians. All during high school and through college, I have worked during the school years and in the summers and some of the jobs kind of overlapped and intertwined.
After working at Best Buy, I also worked for a company called Ping Tech Corporation. We built custom systems and small networks for small businesses and things of that nature.
While at Purdue University, second semester my freshman year, I worked for Purdue Data Network. I worked on the network upgrade, that was a big project there at Purdue. After that, I worked for the school of liberal arts. I was a systems and network administrator there, user base of 5 to 600 users.
After that, I worked for Allegiance Telecom which is a publicly-held telecommunications company that specializes in providing business telecom solutions.
Q. What did you do for Allegiance?
A. I was a support intern. I worked for hybrid networks primarily UNIX and NT-based systems.
Q. Are you, do you know the Purdue network topology?
A. Yes, during my job there as network technician, we installed, I installed hubs and switches, routers, connected cable, during the major upgrade, the fiber optics, so, yes, I know that work.
Q. What was upgraded, the internet connection upgraded?
A. Not at first. When I first attended Purdue, they had a pair of T1s that was load balanced and what that does is take two T1 lines and makes them act as one. T1 is a data connection line of 1.55 megabits per second. And when I left, they had upgraded the main connection to the internet to a T3. However, the main focus of the upgrade was the internal infrastructure at Purdue, the backbone, the connections to labs, connections to dorms, things of that nature.
Q. What is a T3 line, what's is the access speed on that?
A. T3 is 44.5 megabits per second.
Q. Is that an increase of what magnitude?
A. 30 times.
Q. From what it was before?
A. I am sorry, it is 30 times larger than T1. We had a pair of T1s, so that would only be 15 times.
Q. When the upgrade of the internet access to the university was achieved, did that mean that the same increase in magnitude was found in the dorm rooms?
A. No, when we were doing the network roll-out, updating the systems, the primary goal was to improve efficiency on the network. The early roll-outs were just put up almost in haste just to get functionality and we were working through and reworking things.
When you upgrade the main pipe to the internet, there is still a lot of factors that take into account what the end users, for example, the students in the dorm, are going to experience when you upgrade a connection likes that. There are several points within the network pinch points where things bottleneck.
For example, our typical connection to a dorm would only be 10 megabit shared connection and that shared connection would be used by anywhere from 2 to 400 students. When you upgrade the main connection to the internet, we weren't necessarily upgrading those pieces.
Q. Did you live in the Purdue dorms?
A. Yes, I lived in the dorms my freshman and sophomore years at Purdue.
THE COURT: When was that so I have a time frame?
THE WITNESS: That was fall of '96 through spring of '98.
THE COURT: Thanks.
Q. What was the network available to your dorm room at Purdue?
A. The --
MS. MILLER: Objection, I fail to see the relevance to this line of questioning.
THE COURT: Overruled.
A. When I initially went to Purdue freshman year, the process of the migration of the main upgraded backbone was in its infancy and halfway through my freshman year, we actually saw the fruits of it in the dorm. When we started, we had a 19.2 kilobyte connection and once the roll-out reached the dorm, we had a 10-megabit shared connection. I had a 10-megabit connection, every room had a 10-megabit line to it which would funnel down so everyone in that one room would share a 10-megabit line to the campus backbone.
Q. What access speeds do you experience on the 10-megabit line?
A. When I first got the line, when I first was connected, I was one of the early few utilizing the new speed and we could readily see 100-kilobits per second line when they first installed it.
Q. You said 100 kilobits per second?
A. 100 kilobits per second.
Q. About 10 percent of the rated speed of the line?
A. Right, those numbers come -- I wasn't the only one using the network and so other students using that.
The other thing when we first got that, the university still had those load balance T1s and that line is only 3-megabits per second line and the design of the network, the dorms would never, one dorm room or one computer in a dorm room would never have full access to the 3 megabits.
Q. Did the speed that you were able to experience change at any time during your time in the dorm?
A. Yes, they actually got worse. During the roll-out, everything was done in phases. We did one and two dorms at a time and as we brought more dorms on line to the network, our connection speeds and what -- the data transfer rates we experienced gradually decreased.
Q. Before I asked you about 100 kilobits was 10 percent, I meant to say 1 percent of the 10-megabit lines?
A. Yes, that's correct.
Q. Mr. Pavlovich, are you being paid to be here to testify?
A. No. However, I feel I should mention the Electronic Frontier Foundation paid for my airplane ticket. I got a call yesterday from Ed Hernstadt and they said they needed me up here, so I caught the last plane of the evening, 7 p.m.
Q. We thank you for that.
Have you ever been involved in a project to develop a piece of Linux software?
A. Yes. Just to kind of give you a quick background, when we say project and what Linux is before we obfuscate and things get confused, the development process --
THE COURT: When do we get to doing that, obfuscate and things get confused?
THE WITNESS: I will do my best here.
A. We had a project, the way we define a project is the users of the system, users of the Linux operating system and primarily developers get to a point in their developing their code that they realize we now have the foundation to work on something else, whether it be 3D graphics, video playback, a word processor program now, things like that.
Interested developers will make announcements on many mailing lists, bulletin boards saying I am John Q. Developer, I wish to develop this application, I will be working with this web site, this mailing list, the code archive will be stored here, and anyone else that wants to join in, come over here and we will start working on here on this. In a short period of time, anywhere from a half dozen to a hundreds of developers will work on any given project.
Q. What is a code archive?
A. A code archive, we tend to give that name to a system we use, when you have a large number of developers working on a project, it is very easy for people to overwrite someone else's work. So a code archive using a special program called CVS allows you to make changes to code and store the changes between each revision. So multiple developers can change the same piece of code and if something gets squashed, you can go back and revert to the original piece.
Q. What piece of code gets selected under the conversion?
A. I am sorry?
Q. How is there a selection of and different versions of the same code?
MS. MILLER: Objection, foundation.
THE COURT: Sustained.
Q. Is one piece of code selected out of the different versions of the same codes that are written?
A. When a developer, say we are developing a word processor and fixing the spell check function and one developer sends up a fix for a bug and another developer gets into a PC he meant to get in two days ago and created another bug. What will generally happen is they will look at it and just make another patch to go on top of it. It is really a revolving process. The last piece committed to a developer that has access to it is generally the one people are working from.
Q. Have you ever worked in an environment where you have a traditional process of making software?
MS. MILLER: Objection.
THE COURT: Sustained as to form. I don't know what that means.
MR. HERNSTADT: I am sorry, your Honor.
Q. Do you understand what I mean when I say the traditional way of writing software?
A. I think you mean the traditional commercial development model. The open source model has many advantages in that it levels the playing field, so if you are the most senior developer or most junior developer, you both have equal say in what goes on in the code base and the best idea wins or best piece of code wins and that is very advantageous because a lot of times, you will get a 17-year-old that is really sharp at what he knows and it is a better way of doing something. In traditional, it is more top-down manner, where the most senior manager or developer says this is how we are doing it even though it might not necessarily be the best way to do it.
Q. Which Linux projects have you worked on?
A. I have worked with several. The first one was the Debian Linux distribution, a Linux distribution is a term we give to another project that takes the collective of all the smaller projects and puts it together in a way that end users can easily install and maintain a system running Linux and it makes it a lot easier than working from raw code base, so there is much more continuity and stability to the system.
Q. Can you give an example of that?
A. An example of?
Q. A distribution, what might be bundles to go?
A. For example, Debian includes all the necessary tools and applications one would need to set up a web server, a mailing server, set up a desktop system for doing code development, word processing, networks, virtually anything you can do with a computer, there is an application available that you can do.
Q. What other projects have you worked on?
A. I worked -- I am sorry?
Q. What other projects have you worked on?
A. One of the developers I met while working on the Debian project approached me and said he had received some documentation on how to start getting 3D graphic support under Linux. I was very interested in this because I was at that time looking into what it would take to get a DVD working under Linux, so I worked with him and we started the Utah GLX project which was one of the founding projects for hardware accelerated 3D graphics in Linux.
In fact, it was the founding project for that. My role there, I lobbied several hardware manufacturers for documentation. Our goal there was we needed specific documentation to the various video chip sets in order for us to support those cards in Linux.
Q. What does it mean when you say to support a card in Linux?
A. There is literally dozens of hardware vendors selling common PC hardware and users often when they buy a system, they are not sure which piece they get and in order for Linux to run on the hardware they have, we have to have support for their chips and so our goal is to get Linux to run on their system, we have to have support for all the available chips.
Q. Does support mean that the operating system and the chip can interact?
A. That's what I mean by support, the Linux can communicate with the card, how the card was intended to be used for.
Q. Can you explain what a graphic accelerator is?
A. Graphic accelerator is a term used for the latest generation of video cards where they specifically have designs in them for doing 3D graphics, gaming, a lot of times they are adding in support for hardware accelerated video play back, motion compensation, video -- I can throw catch phrases all day but --
Q. What was the next project you worked on?
A. After getting to the point where we had gotten to where we needed to begin the DVD project, I spun a sister project off from Utah GLX that became known as the Linux Video project or for short, LiViD.
Q. Why did you start LiViD?
A. Quite frankly, I wanted to play DVDs on my Linux box. I received documentation for a hardware decoder that worked with my video code at the time and I wanted to be able to utilize that decoder chip and the DVD drive and movies I bought under Linux.
Q. What was your role with the LiViD project?
A. I was the founder, project leader of LiViD.
Q. What does it mean to be a project leader?
A. It can mean a lot of things, it depends on the project. A lot of times the project leader in my case went out and actively seeked developers working on similar projects, video-related project. My idea was if we get all the developers working on video and DVD-related projects, we could all work from a common code base and have more a cohesive and efficient code group as opposed to several projects working on different things and not necessarily coming up with a standardized set of tools.
Q. When did you start working on the LiViD project?
A. I founded LiViD June, July, in the time period of 1999.
Q. Are you still working on it?
A. Yes.
Q. How much time do you devote to LiViD?
A. When I originally started LiViD, I put upwards of 40 hours a week, talking with developers, talking to hardware vendors, looking at specifications, looking at code, writing code. With my job and what I have been doing now, I have not been able to commit as much time and now I would say I commit anywhere from 10 to 20 hours a week.
Q. Are you being paid for any of your work on the project?
A. No, I am not.
Q. Have you ever heard of DeCSS?
A. Yes, DeCSS is commonly referred to as a Windows program that decrypts DVD data.
Q. When did you first become aware of it?
A. Summer/fall period of '99 when it was first posted to the LiViD mailing list.
Q. Did you try it out when it was first posted?
A. When it was first posted, it was posted in binary form. We were more -- I was more interested in the source code version which came shortly thereafter. When it first came out, I did not use it.
Q. Was DeCSS part of or connected to the LiViD project?
MS. MILLER: Objection, your Honor, no foundation.
THE COURT: Overruled.
A. Yes, the DeCSS has actually a long history of being related to the LiViD project. The CSS project or CSS process has a few phases, the authentication between a decoder or the piece whether it be hardware or software that takes the DVD data and converts it here in audio and video presentation and the actual decryption where it decrypts the encrypted content.
The first part of that process was the authentication and that was written and released for and under the LiViD project. DeCSS utilized the CSS routines from the LiViD project as a piece of DeCSS. DeCSS, the source code was later translated, the core functions were used in the decrypting part of the DeCSS for the Linux video player.
Q. In other words, you are saying part of the DeCSS came from Linux and the second part of DeCSS went back into Linux?
A. That is correct.
Q. Is the source code for DeCSS available now?
A. Yes.
Q. Is the source code for LiViD project available?
A. Yes, all the code for the LiViD project is available. We released all the under the GNU general public license which is the open source license that most Linux projects are using.
Q. Why was DeCSS a Windows program?
MS. MILLER: Objection, your Honor.
THE COURT: Sustained.
Q. Do you know why DeCSS was a Windows project?
MS. MILLER: Objection, we have already heard testimony from Mr. Johansen.
THE COURT: Sustained.
MR. HERNSTADT: OK.
THE COURT: He didn't write the code.
MR. HERNSTADT: I will try it an a different way, your Honor.
Q. Was DeCSS used by the project in developing the LiViD player?
A. Yes. Many of the other developers that had -- I didn't have a windows system at that time and many of the other developers used DeCSS to test the tool, to decrypt DVD data to use the unencrypted data for the other parts of the DVD player. A DVD player would have ten steps to decode a DVD fully and CSS represents two of those and we were unable to develop many of the other pieces without having those two steps. So many of the developers would use the unencrypted content to start analyzing the other parts of it and many developers analyzed the algorithm which was then brought back into the LiViD player.
MS. MILLER: Objection, move to strike the last answer. This witness has not laid a foundation for how he knows what the other developers in the Linux project have.
THE COURT: Granted.
Q. You were the project leader of the LiViD project?
A. That's correct.
Q. As project leader, you observed all the different changes of major source code as they were made, is that correct?
A. I observed most of them. It is difficult to see every piece of code that goes in, but when a developer posts a change to the LiViD project or LiViD archive, we set up a tool to where the developer would commit his changes and it would list it and then e-mail back to the mailing list, without the developer having to do anything, the list of the files that were changed and give an area for a note to what the developer said he had just changed in that latest patch or update.
So it was very easy to track the developments by following the mailed postings. They listed the files that were changed and what was changed in those files.
Q. You said you followed the postings to the forum as well?
A. Sure, and the code archive itself.
Q. Was it your responsibility to know what was going on in the LiViD project as its leader?
A. It was my responsibility in a sense that, you know, I felt like I founded this project, I started it, this is something I wanted to do. I had no obligation, no one was going to punish me if I didn't follow everything but I had an interest and I wanted to see a project that I started get completed so I actively followed the developments of the project.
Q. Did other people working on the project report to you what they were doing?
A. Yes. We would release status reports on occasion and I would send out notes to other developers saying give me an update on, you know, what piece you are working on, where you see this going, if you need help in a certain area so we could give the general community an idea of what was going on in a project for all the people that weren't following the project directly on the mailing list.
MR. HERNSTADT: I would suggest that that would provide the foundation.
THE COURT: It shows that he knows a lot of hearsay. I am very interested in what's going on in Camp David and I read the paper every morning. I am not capable of testifying to what's going on at Camp David in a court of law.
MR. HERNSTADT: I understand. He is the leader of a project, they all report to him about what they do.
I will try it a different way.
Q. Mr. Pavlovich, given what you know about the LiViD project, can you tell me if it would be necessary if you wanted to, if you were to write a DeCSS program to do it in Windows?
A. I am sorry. I didn't understand the question.
Q. Given what you know about the LiViD project and Linux in or about the fall of 1999, if you are going to write a DeCSS program, would you have to do it in Windows?
MS. MILLER: Objection. I don't understand the question. It is completely ambiguous.
THE COURT: I think the witness and I do, Ms. Miller. Overruled.
We are now going to hear about the file formats for the third or fourth time.
A. The file system found on DVDs is the UDF support for Linux was in infancy at the time, so one would need to have access to read the data before being able to decrypt the data on the disk, so yes someone would have to use windows or an operating system that supported UDF to develop DeCSS.
Q. Did you consider testing the LiViD project using unencrypted disks?
A. Yes, some of the developers found, you know, through the course of their testing of the disks, they found a few unencrypted DVDs. The main issue of that is there is no labeling on a DVD when you buy it whether it is encrypted or unencrypted. Through my research, I found only a dozen or two dozen DVDs that are known to be unencrypted.
The other issue, some of the DVDs were found early on to be unencrypted and either in later pressings or later releases were then encrypted.
Q. Is there any other reason you didn't use unencrypted disks to test the Linux project?
A. Most DVDs are encrypted and our DVD player wanted to be full featured. We wanted to be able to play all the DVDs on the market. The other thing here that we really were developing for was our own personal use but also all the other users for Linux and limiting the DVD player to only un encrypted DVDs would have severely hampered the usability of the Linux DVD player.
Q. Is the LiViD player project completed? Is there a player that works now?
A. In our initial design, we have kind of had two phases of the project. When we first started getting all the necessary documentation and information needed to develop the LiViD player, we did a proof of concept design where we put a bunch of hodge-podge code together and we were able to test whether everything was going to be technologically feasible.
Over last six or seven months, we designed a new architecture which is going to allow us to have improved playback performance, hardware acceleration, support for multiple hardware decoder part boards and video cords and currently the DVD player for Linux can play DVDs, decode the audio. We have not had a formal release, a version 101 so to speak, however the program is in a working state.
MR. HERNSTADT: I would like to have the witness give a demonstration of the LiViD program here. It is about a three or four-minute process to show you how it works and what it is.
MS. MILLER: Plaintiffs object to that demonstration on the grounds of relevance. Whether or not there is an unlicensed LiViD DVD player right now has no significance, any relevance to the issues in this lawsuit.
THE COURT: I take it your position is you don't dispute that there is a working unlicensed DVD player, not that you are conceding it, but you don't care to dispute it for the case of the trial.
MS. MILLER: That's correct.
THE COURT: I don't think we need it then, Mr. Hernstadt.
MR. HERNSTADT: If it is not contested, then --
THE COURT: It is not contested.
Q. Does the LiViD player have a save function that permits you to copy the movie on the DVD to some place on the hard drive?
A. No. The design of the LiViD DVD player was never geared around copying. Our main goal was to get compatibility and performance of a DVD player so we could support it on as many systems with as wide a range of hardware as any user would use as possible, and copying was never a main focus of the project.
Q. Have you ever used DeCSS to decrypt a DVD?
A. Yes.
Q. When did you do that?
A. During the course of this trial I used it on Windows to test, run some tests, test the application, get a feel for it.
Q. What did you do with the files that you made when you used the DeCSS program?
A. The Windows system I used has a very small space allocated for Windows, only 1 gigabyte, so I'm not able to decrypt the entire disk. I decrypted one small piece of it, just tested it, to see that the application worked, deleted it when I was done.
Q. Have you reviewed the source code of DeCSS?
A. Yes.
Q. Is that source code in the Linux DVD player now?
A. The derivatives of the DeCSS are. The core functions in DeCSS, the mathematical algorithms and the process for decrypting were converted from DeCSS back into the LiViD DVD player.
Q. Do you know what DivX is?
A. Yes.
Q. What is it?
A. DivX is in the term I have seen it used in these court proceedings for an MPEG4-based video format.
Q. Have you ever used DivX?
A. No.
Q. Have you ever used any program other than DeCSS and the one instance you mentioned to decrypt a DVD movie?
A. I've got a DVD player on my Windows side, my Windows installation. That's the only other one.
Q. But have you ever used a program like DVD Rip?
A. No.
Q. Or Speed Ripper?
A. No.
Q. Or any other "ripper"?
A. No.
Q. Do you own DVDs?
A. Yes.
Q. How many?
A. I've got 20, 25 DVDs.
Q. Did you buy them?
A. Yes.
Q. Have you ever played a DVD that you didn't buy?
A. Only the ones I rented.
MS. MILLER: Objection. Relevance.
THE COURT: Overruled.
Q. Have you ever made a decrypted DVD movie available on the Internet?
A. No.
Q. Have you ever made a copy of a decrypted DVD on any format, VCD, CD, DVD, and made it available to anyone else?
A. No.
Q. Or sold it to anyone else?
A. No.
MR. HERNSTADT: Thank you very much, Mr. Pavlovich.
THE COURT: All right. We will take our afternoon break, 15 minutes.
THE COURT: Okay, Ms. Miller, you may proceed.
Q. Good afternoon, Mr. Pavlovich.
A. Good afternoon, Ms. Miller.
Q. I'm correct that you didn't have anything to do with the creation of DeCSS, right?
A. Could you please repeat the question.
Q. I'm correct that you didn't have anything to do with the creation of DeCSS, that's right, isn't it?
A. I did not develop any of the code. However, I started the project for Linux in which the algorithms in DeCSS were part of it.
Q. Now, you talked about performing a test of DeCSS for the first time after getting involved in this lawsuit, is that correct?
A. That is correct.
Q. The machine that you used to perform your test of DeCSS, you told me in your deposition that machine actually has a 10 gigabyte hard drive, is that correct?
A. That's correct.
Q. That only 1 gigabyte was reserved for Windows to be able to use DeCSS?
A. That's correct.
Q. You testified that the css-auth program was originally developed as part of the Linux development project for a DVD player, is that correct?
A. Yes.
Q. At what point in time was that program developed, if you know?
A. That was in the summer of '99.
Q. Had you actually reviewed the source code for the css-auth program?
A. Yes.
Q. What functions does the css-auth program perform?
A. Css-auth does what they call handshaking between the DVD drive and the decoder on the system, and it passes the keys that are on a DVD disk and the key that is present in the player, and it does authentication and matching of those keys to see if you have a viable match.
Q. And the css-auth program that you're referring to is written for the Linux operating system, is that correct?
A. Yes, yes.
Q. Now, am I correct that no one on behalf of the LiViD project sought a license from the DVD-CCA for CSS?
A. Can you please repeat the question.
Q. No one from the LiViD project ever sought a CSS license from the DVD-CCA, is that correct?
A. There are contributors to the project that were familiar with the licensing. The project as a collective never sought out a license. There were individuals that were interested in the development that had understanding of the license, other people working on other projects.
Q. So the answer to my question is no one associated with the LiViD project ever sought a license from the DVD-CCA?
A. The answer is "sort of," because when you say "a member of the LiViD project," it's not like we have a list of people who are in the group. It's an open development process, and there were other people what might say they are part of LiViD, one might say they are not, that did go seek out the license.
Q. But you testified in your deposition, did you not, that the LiViD project basically resolved that they wouldn't seek a DVD-CCA license because of the nondisclosure requirement, isn't that correct?
THE COURT: Mr. Hernstadt?
MR. HERNSTADT: Could we have a page and line number?
THE COURT: Ms. Miller, I did issue an order on this. Please just indicate the page and line and just read the testimony. Then if you want to ask the witness if the testimony was true, you can do that.
MS. MILLER: Sorry, your Honor. I just need one more moment to find the testimony. I'm almost there.
THE COURT: Fine.
THE WITNESS: Could I have a copy to review when you discuss, so I can get the context?
MS. MILLER: Certainly.
THE COURT: Do you want to perhaps pass to another subject and have one of your colleagues look through that? Mr. Sims will find it.
Q. Now, you have heard of a company called Sigma Designs, is that correct, Mr. Pavlovich?
A. Yes, I have. I worked with one of their -- I believe he is a marketing manager at Sigma Designs.
Q. And can you explain for the Court what Sigma Designs does?
A. Sigma Designs develops hardware decoder chips for doing particularly DVD playback. They released a number of cards into the market to support that.
Q. Does Sigma Designs also have a DVD player on the market?
A. They have an application that works with their hardware boards.
Q. And does that application run under Microsoft Windows?
A. Yes.
Q. Now, you are aware, are you not, that Sigma Designs is a CSS licensee, is that correct?
A. I have not reviewed their documentation. I don't know firsthand if they are a licensee. It would lead me to believe that they are, due to the fact that they released equipment onto the market.
Q. Now, are you also aware that Sigma Designs recently announced plans to develop a Linux DVD player? Is that correct?
A. Yes, they are releasing plans to develop a DVD player to support their next generation adapter. In fact I'm on the list of beta developers for that card.
Q. Now, did anyone from Sigma Designs ever post anything to the LiViD mailing list?
A. Marshall Goldberg. He was the gentleman who was the marketing manager that I worked with.
Q. Now, it's correct, isn't it, that Mr. Goldberg posted a message to the LiViD mailing list expressing concern about the legality of LiViD's development activities in creating an unlicensed DVD player, correct?
MR. HERNSTADT: Objection. Hearsay.
THE COURT: I take it it's not offered for the truth.
MS. MILLER: That's correct, your Honor.
THE WITNESS: Could you please repeat the question.
Q. It's correct, isn't it, that Mr. Goldberg expressed some concern on the LiViD mailing list about the LiViD team's development of an unlicensed DVD player for Linux, isn't that true?
A. I believe he did. I would have to review the archives to be sure.
Q. Do you recall testifying in your deposition about Mr. Goldberg's mailing list posting?
A. Yes, I believe you showed me one of the postings, and upon reading it I recognized the message.
Q. And isn't it also true that Sigma Designs declined to release to LiViD certain of their specifications for their interface cards because of their nondisclosure requirements under the CCA's license?
A. I don't know the disclosure requirements under the CSS license. However, Marshall expressed to me that they could not release any specification on their most popular board, which was the Sigma Designs known as the H Plus Board, however, we did learn that that board did not do any CSS routines that we knew of, and that board was reverse engineered, or the driver for that was reverse engineered, and support for that board is now going to be available in the LiViD player.
Q. You also know the name Paul Bocco, is that correct?
A. That's correct.
Q. Paul Bocco is one of the leaders of another team referred to as LS DVD, is that not correct?
A. That is correct. LS DVD has also worked with LiViD. We have been working to try to create a cohesive set of tools so that our code sets could work together as best possible.
Q. In fact the LS DVD project members and LiViD project members shared information about their ongoing development efforts for Linux DVD players, correct?
A. Yes, that's correct.
Q. Now Mr. Bocco also expressed some concern on the LiViD mailing list about creating an unlicensed DVD player, isn't that correct?
A. That is correct.
Q. And as far as you know, is the LiViD -- excuse me -- is the LS DVD team now seeking licensing from the DVD-CCA?
A. I believe they are. Paul sent an update to the list, mentioning that they had found a company to help fund the necessary -- or to raise enough money to buy the licensing and what not.
However, I think it's important to note that we have seen no code from either of these companies yet, and that their announcements have been met with skepticism. The common term used is vaporware, meaning somebody announces they are going to do something in the future, we are going to release widget A or application B, and a lot of times they never materialize. As of yet both of those people have made announcements they are going to do it, however, we have not seen any fruits of their labor.
Q. Now, you testified earlier this afternoon that you have never used any rippers like DVD Rip or Power Rip and the Power Ripper, is that correct?
A. That is correct.
Q. You submitted a declaration in this lawsuit, is that correct?
A. I submitted two.
Q. Okay. And do you recall the date of the first declaration that you submitted in this lawsuit?
A. I believe it was the end of April, beginning of May.
MS. MILLER: Your Honor, may I approach the witness?
THE COURT: Yes.
Q. Mr. Pavlovich --
A. Could you just give me one second to just take a quick gander here.
THE COURT: You have given him Defendants' BBO, as I understand it, is that right?
MS. MILLER: I actually thought it had been designated as Defendants' S.
MR. HERNSTADT: Defendants' S is what I have.
THE COURT: S?
THE WITNESS: I have BBO at the bottom.
THE COURT: Mine and the witness's are BBO, and BBO it is.
MR. HERNSTADT: May I inquire, is that the declaration dated April 30?
THE COURT: Yes.
MR. HERNSTADT: Thank you.
Q. Mr. Pavlovich, have you reviewed the declaration?
A. Yes.
Q. Do you recognize this as the first declaration you filed in this case?
A. Yes.
Q. I would like to direct your attention to page 6, paragraph 13 of that declaration.
A. Okay.
Q. Paragraph 13 you state, "At the same time, other tools for copying movies from DVDs such as DVD Rip (a program that intercepts the decrypted DVD data stream and creates a freely copiable data file) and Power Ripper are widely available and were for months prior to the release of DeCSS. Additionally, they are the tools used when digital-to-digital (for instance DVD to VCD) copies are made from DVDs, because they are much easier to use than DeCSS."
Have I just accurately read paragraph 13 of your declaration?
THE COURT: You don't have to ask that question. It's right in front of us. Next question, please.
A. Yes.
Q. Did you write this paragraph of your declaration?
A. Yes.
Q. But you had actually never used either one of these rippers --
A. No.
Q. -- prior to writing this paragraph?
THE COURT: In other words, it's correct that you have never used any of these other rippers?
THE WITNESS: That is correct.
Q. You also indicated in your deposition, did you not, that your only knowledge about Power Ripper is that it has something to do with DVDs and that it's a Windows program.
A. Yes.
MR. HERNSTADT: Your Honor, could we have a page and line?
MS. MILLER: Certainly. That would be page 99 of the deposition, line 11 through line 25.
THE WITNESS: Could I get a copy of the deposition? I have not received it.
THE COURT: It's not necessary right now, Mr. Pavlovich. Let's please move on with this.
THE WITNESS: I apologize.
THE COURT: I wasn't being impatient with you, Mr. Pavlovich. I issued an order in this case two weeks ago explaining exactly how to do this, and I have reiterated it several times during the trial.
Q. Now, Mr. Pavlovich, you also have told me in your deposition, and I am reading now from page 100, line 14 through 15, and I asked you: "Q. What about DVD Rip?" And your answer: "A. I have never heard of DVD Rip."
Was that an accurate statement in your deposition?
A. I believe if that's how you are reading it from the paper, yes.
THE COURT: That wasn't the question. Was the testimony you gave in the deposition truthful, the portion that was just read to you?
THE WITNESS: No, I mean I have heard of DVD Rip.
Q. And at what point in time did you hear of DVD Rip? Was it prior to your declaration?
A. I don't have a date when I remember hearing about DVD Rip. You know, through the course of developing the DVD player and researching it.
THE COURT: Had you heard of it before your deposition was taken?
THE WITNESS: Yes.
THE COURT: So when you testified in your deposition you never heard of it, you testified falsely. Is that about the size of it?
THE WITNESS: Yes.
THE COURT: Is there some particular reason why you did that?
THE WITNESS: Not that I can think of now.
THE COURT: Let's go on.
MS. MILLER: No further questions, your Honor.
THE COURT: Thank you. Mr. Hernstadt?
Q. Mr. Pavlovich, do you remember being asked about DVD Rip at your deposition?
A. Not particularly.
Q. Were you trying to hide something in your testimony when you said you had never heard of it?
A. No. There is a lot of utilities out there available along this genre, and I think it's difficult to keep track of the exact names of everything.
When you know of an application and you wish to research it and what it does, it's very easy to go and make a search of it and find that application and find the specific name of it. There are literally dozens of applications along these lines, and I made a mistake.
Q. Mr. Pavlovich, where is the information about the LiViD project stored?
A. On the LiViD website. It has the links to all the information for the project.
Q. Is that information available to anyone?
A. Yes, it's publicly available.
Q. You were asked why you didn't go to the DVD-CCA for a license. Why didn't you?
A. There was a long discussion on the LiViD development list on that topic, and many people are expressing several different opinions.
One of the major deciding factors was the license that we were using for developing a Linux DVD player was the GNU public license, and it would provide an incompatibility with what we knew of the CSS license. And there is also the issue of raising the funds and coordinating who would handle the actual facilitation of the licensing and be bound to the contract, etc.
Q. When you say "incompatibility," can you explain what you mean by that?
A. The GNU public license is a license placed on the software and it's a legal incompatibility. GNU public license was designed to protect code that was released under that license so people couldn't take it, make a modification and sell it without providing the source which they changed. That's in a nutshell what the core function of the license is. And what we knew of the CSS license, we would not be able to release the source code for the CSS in the DVD player.
Q. In writing software for Linux applications is reverse engineering a tool that you use?
A. Reverse engineering is I think better defined as a method or a process. It's kind of a general term. Yeah, reverse engineering is used all the time under Linux development projects. Hardware manufacturers often don't release all the necessary information on products, whether it be an interface for talking to graphics hardware, file sharing technology.
For example, one project that I followed very closely over its development is the SAMBA project which incorporates file sharing for UNIX systems in between Microsoft Windows systems. Microsoft provided information on the file technology, however they did not release all the information needed. They made a few changes to the protocol so it would be impossible to develop a compatible program to talk to Microsoft systems on a non-Microsoft system. So the SAMBA team had to reverse engineer the SMB protocol across the wire to effectively communicate with Microsoft systems.
Q. Thank you. You were asked if you had done a declaration. You said you had done two declarations.
MR. HERNSTADT: May I approach, your Honor?
THE COURT: Yes.
Q. Mr. Pavlovich, is that the second declaration you did in this case?
A. Yes.
MR. HERNSTADT: I move the two declarations into evidence.
MS. MILLER: Your Honor, objection to moving the first declaration into evidence. As I read the declaration, there are several statements in there that would purport to give opinion testimony about Linux and other things having to do with reverse engineering and system development. I don't think that Mr. Pavlovich has been properly qualified as an expert under Rule 702, so we would object on that basis.
Also, there seems to be some discrepancy particularly as to paragraph 13 of the first declaration, whether in fact that's true or if he has personal knowledge of the facts that he related in that paragraph, given that he testified today that he has never used any rippers.
THE COURT: And the second declaration?
MS. MILLER: The second declaration, in so far as Mr. Pavlovich is explaining what DeCSS does, I am going to object on the ground that we have already heard testimony from Jon Johansen about what DeCSS does on that basis. That would be cumulative. I also understand that he is responding in the second declaration to some of the information in Mr. Schumann's declaration, which is at issue with some of the aspects of Mr. Pavlovich's first declaration. So on that basis we have no problem, but certainly as to paragraph 5, the second declaration, purporting to say what Mr. Johansen said about the purpose of DeCSS, we would move to strike that or at least not have it offered into evidence.
THE COURT: Look, Mr. Hernstadt, I have a problem with this. You had the witness here on direct, you could have asked him anything you wanted to ask him, and to come in on redirect with two declarations, narrative material, part of which is incompetent, part of which is hearsay, part of which is beyond the scope of the cross, you are opening the witness all over again.
MR. HERNSTADT: I will withdraw the question, your Honor.
THE COURT: All right.
MR. HERNSTADT: Thank you very much, Mr. Pavlovich. Nothing further.
THE COURT: Anything else for Mr. Pavlovich, Ms. Miller?
MS. MILLER: Nothing, your Honor.
THE COURT: Thank you, Mr. Pavlovich. You are excused.
All right. In view of the hour, let's get to the housekeeping stuff you people wanted to raise, because I have another matter at 4:30.
MR. ATLAS: I don't think we need to do it on the record unless your Honor wishes.
THE COURT: I think in this case I want to do everything on the record.
MR. ATLAS: Fair enough. Should we come up or do it from here?
THE COURT: You can do it from there.
MR. ATLAS: Really it's just an issue of how your Honor wants the deposition designations and some of the documents.
My thought, and I have talked about it with Mr. Sims, would be to move into evidence the depositions. What we have done is we have marked the actual transcripts, we have bracketed them, and I believe at the front of each deposition is sort of a designation page that we have designated these pages, they have objected, or they have counterdesignated and we have countered the counters in some instances.
THE COURT: I am almost 100 percent sure about two or three weeks ago I issued an order of a page or two explaining exactly how this was to be done. Did that somehow escape everybody's attention?
MR. SIMS: I thought Mr. Atlas wasn't clear.
THE COURT: I want to know what the question is exactly.
MR. ATLAS: I assume we will move those kings into evidence, and the Court as it goes through the evidence in this case will decide on the objections as it is necessary.
THE COURT: Sure.
MR. ATLAS: The second thing is with respect to the documents, Mr. Sims has provided me with a list of the exhibits he wishes to move wholesale into evidence. I am going through that now. I think a lot of them I don't have a problem with, some of them I do and I am noting those objectives. I am going to do the same thing.
Now, we will do the same process, move all those documents into evidence, and the Court will as its going through the material decide whether my objections or Mr. Sims's objections are valid and decide whether the documents stay in evidence.
THE COURT: I am not sure how we are going to do the documents. It is going to depend on volume.
MR. ATLAS: My goal this weekend is to significantly narrow the volume.
THE COURT: Well, I would certainly hope you both do that. Plaintiffs identified a hundred and some.
MR. SIMS: We have provided a much smaller list, less than a third.
THE COURT: And you provided well over a thousand.
MR. ATLAS: I promise you it will be less than a third.
THE COURT: Yes, I can't even begin to imagine that all of that stuff is necessary.
MR. ATLAS: That's what we are going to do. Assuming you want the process to be handled the same way, which is we give you everything and you rule on the objections, the only wrinkle to that is the documents marked privileged and confidential, attorneys eyes only. Do you want to handle those any differently?
THE COURT: How many of those are there going to be?
MR. ATLAS: I don't know. I'm going to go through that this weekend.
THE COURT: "It depends" is the short answer.
MR. ATLAS: I anticipate coming on Tuesday with all this stuff ready to go and at that point we can decide whatever we want to do and we will provide it.
THE COURT: What is left on defendants' case?
MR. ATLAS: It looks like we have four, possibly five witnesses left. My best guess is it would be hard to imagine we would go past Wednesday on this. Again that's just an estimate of what I know from these witnesses and how long the direct is. Obviously it would be subject to whatever cross. But we have been moving at a pretty fast clip unless it slows down significantly.
THE COURT: Who are the remaining witnesses?
MR. ATLAS: I will give you the possible choices.
THE COURT: This sounds look a trade for a pitcher.
MR. ATLAS: Mr. Einhorn, Mr. Touretzky, Mr. Appel, Mr. DiBona and Mr. Abelson are sort of the potentials, and over the weekend we are going to work out exactly who we feel we need, and we will advise plaintiffs' counsel as soon as we know.
THE COURT: I assume -- Mr. Cooper?
MR. COOPER: I just want to know for our own preparation over the weekend that there is not anyone else they are contemplating so that we won't fail over the weekend to prepare for somebody and then find on Tuesday that they are being offered.
MR. ATLAS: Just give me a second.
THE COURT: Look, I am taking that until I hear some spectacularly wonderful reason nobody other than these five are going to get on the stand.
MR. ATLAS: Possibly Olegario Craig. Definitely him.
THE COURT: I assume the plaintiffs have some clue as to what these people are all about, right?
MR. SIMS: These people have all been deposed.
THE COURT: Okay. So, if, as seems entirely likely, this is the rest of the defendants' case, is there likely to be a rebuttal case?
MR. GOLD: Your Honor, we have been discussing that for several hours last night, and today's testimony threw some question on it, so if there is a rebuttal witness it will be short. He personally is fairly tall, but he will only testify for less than an hour.
THE COURT: I am glad we are beginning to get some humor into this case.
MR. ATLAS: Is there a name, or you don't know who it would be?
THE COURT: Whoever this is is not testifying before Wednesday, right?
MR. GOLD: Obviously.
MR. ATLAS: It sounds like it may be somebody who has not surfaced in the case. If that's the case, then I would request an opportunity to depose them beforehand.
MR. GOLD: Well then that's reasonable, and we will tell you and you can depose this person on Monday or Monday night.
THE COURT: All right. That sounds cooperative and reasonable. All right. Anything else?
MR. GOLD: No, your Honor.
THE COURT: Okay. Thank you folks.
INDEX OF EXAMINATION Witness D X RD RX LARRY PETERSON...........856 882 883 PETER RAMADAGE...........884 932 MATTHEW PAVLOVICH........940 962 973
DEFENDANT EXHIBITS Exhibit No. Received BDC .........................................862 BBD .........................................863 BDE .........................................889 BDF and BDG .................................929