See related files:
http://www.eff.org/IP/Video (EFF Archive)
http://jya.com/cryptout.htm#DVD-DeCSS (Cryptome Archive)
http://www.2600.com/dvd/docs (2600 Archive)
http://cyber.law.harvard.edu/openlaw/dvd/ (Harvard DVD OpenLaw Project)
1
1
2 THE VIDEOGRAPHER: My name is
3 Robert McDonald, member of the National Legal
4 Video Association for New York Reporting.
5 Today is June 29, 2000 and on the record at
6 approximate 10:30 a.m., in the matter of
7 Universal Studios, et al versus Reimerdes et
8 al. The witness today is Andrew Appel and we
9 are at the offices of Proskauer Rose, 1585
10 Broadway, New York, New York. Will counsel
11 please introduce themselve for the record.
12 MR. HART: I'm Bill Hart from
13 Proskauer Rose for the plaintiffs.
14 MR. HERNSTADT: Edward
15 Hernstadt from Frankfurt, Garbus, Klein & Selz
16 for the defendants.
17 THE VIDEOGRAPHER: Will the
18 court reporter please swear in --
19 MR. HERNSTADT: We also have
20 David Atlas from Frankfurt Garbus and Martin
21 Garbus from Frankfurt also for the defendants.
22 THE VIDEOGRAPHER: Will the
23 court reporter please swear in the witness?
24 A N D R E W W. A P P E L ,
25 after having been duly sworn by a Notary Public
2
1
2 of the State of New York, was examined and
3 testified as follows:
4 THE WITNESS: Yes.
5 THE VIDEOGRAPHER: You may
6 proceed.
7 EXAMINATION
8 BY MR. HART:
9 Q. Good morning. Mr. Appel or
10 Dr. Appel?
11 A. Either one.
12 Q. Thank you.
13 Have you ever been deposed before,
14 sir?
15 A. No.
16 Q. You've been asked to testify here
17 today you because it's our understanding that
18 you are going to be appearing as an expert
19 witness on behalf of the defendants at the
20 trial of this case. Is that your
21 understanding?
22 A. Yes.
23 Q. May I have your home address for
24 the record, please?
25 A. 43 Philip Drive, Princeton, New
3
1
2 Jersey.
3 Q. Are you employed?
4 A. Yes.
5 Q. By whom?
6 A. Princeton University.
7 Q. Okay.
8 And what is your job function or
9 title?
10 A. I'm a professor of computer
11 science.
12 Q. How long have you been at
13 Princeton?
14 A. 14 and a half years.
15 MR. HART: Okay. I'm going to
16 mark Plaintiff's 1.
17 MR. HERNSTADT: Bill, while
18 we're marking this, let me clarify what I told
19 I think Chuck and you, which is that Professor
20 Appel is going to sort of function as mixed
21 expert and fact witness. Some of the things he
22 is testifying about are fact; some of the
23 things he is testifying about are as an expert.
24 MR. HART: Could you mark
25 Mr. Appel's declaration as Exhibit
4
1
2 1, please?
3 (Thereupon, the Declaration of
4 Andrew W. Appel was marked as
5 Exhibit 1 for identification as
6 of today's date)
7 MR. GARBUS: Bill, I assume you
8 know that if for any reason Mr. Appel is
9 unavailable for the purpose of testimony, then
10 it is our plan to introduce this deposition in
11 lieu of his testimony.
12 MR. HART: That's not my
13 understanding, and indeed in my discussion with
14 Mr. Hernstadt last night I asked him whether it
15 was his understanding that the witnesses he was
16 producing for these depositions were being
17 produced precisely because they were appearing
18 as trial witnesses. He said he would give me
19 notice if they weren't and purported to hand me
20 a notice five minutes ago in here by which the
21 defendants are saying they are going to take
22 Andrew Appel. And frankly, I object to it, but
23 frankly I would like to proceed with my
24 deposition right now and not get into arguments
25 over this issue.
5
1
2 MR. HERNSTADT: That's fine.
3 However, I just have to say for the record that
4 I told you last night that we weren't sure that
5 everyone was going to appear at trial, and that
6 anybody who wasn't going to appear at trial, we
7 would give you a notice of deposition and we'd
8 take their deposition, too. And then told you
9 this morning that Professor Appel is away the
10 first week of the trial and it wasn't clear he
11 was going to be able to appear. So pursuant to
12 our conversation last night I've given you
13 notice of deposition.
14 MR. HART: Five minutes ago as
15 this deposition began, correct?
16 MR. HERNSTADT: That's correct.
17 MR. HART: Okay. Thank you.
18 Let's proceed, now.
19 Q. Mr. Appel, I'm going to have the
20 reporter show you what I've just marked as
21 Exhibit 1 and ask you to identify that. If you
22 need to look through all the pages, you may.
23 A. Yes, this is a declaration that I
24 signed in April.
25 Q. Okay.
6
1
2 And your curriculum vitae is
3 attached to this declaration, Exhibit 1, is it
4 not?
5 A. Yes.
6 Q. Is that C.V. accurate and
7 up-to-date in all respects?
8 A. As of the time it was printed.
9 Q. Are there any other things that you
10 can now add to this C.V. that are not reflected
11 in it?
12 A. Let's see. The paper entitled
13 "Technological Access Control Interferes with
14 Noninfringing Scholarship" on a current version
15 of my C.V. would be listed as to appear in
16 communications of the ACM.
17 Q. I'm sorry. The last part was to
18 appear in communications --
19 A. To appear in the journal entitled
20 --
21 Q. Excuse me.
22 A. To appear in communications of the
23 ACM.
24 Q. Okay.
25 And what is the ACM?
7
1
2 A. The ACM is the Association for
3 Computing Machinery. It's the scholarly and
4 industry society for computer science and --
5 Q. I'm sorry.
6 A. And computing.
7 Q. Are you done?
8 A. Yes.
9 Q. I will try, and I certainly don't
10 mean to interrupt you, and if -- let me have a
11 chance to complete the question, too. And
12 that's by no means a criticism. Sometimes the
13 record gets cluttered.
14 So are you taking that the only
15 update to your C.V. as we sit here today is
16 that your article, "Technological Access
17 Control Interferes with Noninfringing
18 Scholarship," is going to be published in the
19 ACM journal?
20 A. Right.
21 Q. Okay.
22 Anything else?
23 A. No.
24 Q. Okay.
25 And am I correct that the article
8
1
2 we just referred to is also attached as an
3 exhibit to your declaration?
4 A. Yes.
5 Q. Have there been any changes in that
6 article from the version we see here as an
7 attachment to your declaration, Exhibit 1?
8 A. The version that's going to be
9 published contains an additional sidebar box of
10 approximately one page that explains the
11 circumstances of the copyright office's request
12 for public comment and sets it in the context
13 of the -- the MCA.
14 Q. Mm-hmm?
15 A. And other than that, there are no
16 changes.
17 Q. Do you have a copy of this later
18 version of the article with you today?
19 A. No. It's available from my
20 website.
21 Q. Thank you.
22 Does your involvement in this case
23 call upon any special skills or knowledge?
24 A. I think it has to do with my
25 knowledge of how scholars publish their works,
9
1
2 sometimes in the form of computer programs, and
3 in how the -- certain certain scholarly uses of
4 published materials may require access to the
5 unencrypted content of those materials.
6 Q. Okay.
7 A. And maybe other things, as well.
8 Q. Okay.
9 Are the other things things that
10 are reflected in your Declaration, Exhibit 1?
11 A. I think that other things are just
12 general technical issues relating to what are
13 computer programs and how they work.
14 Q. Are there any other things that you
15 bring to bear in connection with this case in
16 terms of special skills or knowledge?
17 A. Not that occurs to me at the
18 moment.
19 Q. Okay.
20 You said a moment ago, and I don't
21 want to mischaracterize your testimony, but you
22 just to cut through this --
23 MR. GARBUS: Mr. Gold.
24 MR. HART: Good morning.
25 Q. -- that one of the specialized
10
1
2 areas of knowledge that you have is the
3 publication of works of scholarship involving
4 computer programs. Is that roughly right?
5 A. That's right.
6 Q. Okay.
7 What is the basis for your
8 knowledge and expertise in that area?
9 A. I have published works of
10 scholarship in the form of computer programs.
11 Q. As an author?
12 A. As an author.
13 Q. Okay.
14 Anything else?
15 A. I have used the results of other
16 scholars who have published their works in the
17 form of computer programs.
18 Q. With permission or without
19 permission from the other authors?
20 A. Sometimes with explicit permission.
21 Q. Mm-hmm.
22 A. And sometimes they have published
23 it in a form that implies permission to
24 retrieve it from their internet site and use
25 it.
11
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2 Q. Is that implied permission
3 suggested by the very presence of such works on
4 the internet?
5 MR. HERNSTADT: You're talking
6 about with respect to these articles?
7 MR. HART: Wait a second. The
8 witness has not indicated he has a problem with
9 the question. If you have an objection, make
10 it.
11 MR. HERNSTADT: No. I have a
12 problem with the question, okay?
13 MR. HART: Fine. Object to it.
14 MR. HERNSTADT: Okay, Bill. I
15 will. Objection to the form of the question.
16 MR. HART: Thank you.
17 MR. HERNSTADT: Are you -- what
18 does the word "that" refer to? Are you
19 referring to anything on the internet or are
20 you referring to specific articles on the
21 internet?
22 MR. HART: Do you want the
23 question read back, sir?
24 THE WITNESS: Yes, please.
25 MR. HART: Okay. Ms. Reporter,
12
1
2 if you would.
3 (Record read)
4 Q. You can answer the question.
5 A. Usually I would say it's the
6 presence of that material on the internet on a
7 website where someone is clearly distributing
8 papers and such things as computer programs. I
9 wouldn't say that any appearance on -- anywhere
10 on the internet would constitute permission.
11 It has to do with the type of site it's being
12 distributed from.
13 Q. The context in which it's presented
14 on the internet?
15 A. Right.
16 Q. And what indicia in your mind would
17 indicate the situation where you have implied
18 permission in your words as distinguished from
19 a situation where you don't in your mind?
20 MR. HERNSTADT: I'm going to
21 object to the extent that this is calling for a
22 legal conclusion.
23 MR. HART: Not --
24 MR. HERNSTADT: I understand.
25 I'm just making the record that he's not a
13
1
2 legal -- he's not a lawyer and I'm instructing
3 him not to answer in any way that would suggest
4 that you have an understanding of the law, but
5 that you're answering as a layperson.
6 MR. HART: I'll stipulate that
7 every question I ask him is going to be based
8 on his knowledge and his views and does not
9 call for a legal conclusion.
10 MR. HERNSTADT: Very good.
11 THE WITNESS: I would say that
12 in practice almost all of the places where I
13 download computer programs are from the
14 websites of scholars both in academia and at
15 industrial research labs. Where it's clear
16 that the programs in question are the results
17 of scholarships, that have been published for
18 the purpose of people using them.
19 Q. Got you. Thank you.
20 I'd like you to turn to your
21 declaration, Exhibit 1, for a moment. And I'd
22 like you to focus on Paragraph 3. Okay?
23 A. All right.
24 Q. All right. And if you want to take
25 a moment to read that, please do so.
14
1
2 A. All right.
3 Q. Okay.
4 You say, and I'm referring to the
5 sentence that begins "this on a basic level."
6 Do you see that?
7 A. Yes.
8 Q. Okay.
9 Is what you're saying here that if
10 there is something of interest, it should be
11 put onto the internet so others can have at it?
12 Is that essentially what the statement means?
13 MR. HERNSTADT: Objection. It
14 misstates what's -- what's written here.
15 MR. HART: I'm not asking him
16 to restate what's written. I'm asking him for
17 what -- his understanding of what he wrote and
18 what he meant.
19 MR. HERNSTADT: If you can
20 answer the question, go ahead.
21 THE WITNESS: I think what it
22 means is that ideas can best be evaluated by
23 exposing them to public view and public
24 comment.
25 Q. Okay.
15
1
2 And does that include ideas
3 contained in other people's works or material?
4 A. Yes.
5 Q. Okay.
6 Does your view of scholarship in
7 this context mean that you are free to take
8 other people's works without permission and put
9 them on the internet in order to further the
10 purposes described in Paragraph 3 of your
11 declaration?
12 MR. HERNSTADT: Could you read
13 back the question, please?
14 (Record read)
15 MR. HERNSTADT: Objection.
16 That question significantly misstates the
17 testimony. The witness -- the question
18 before That was talking about --
19 MR. HART: Stop. No speeches.
20 MR. HERNSTADT: The question
21 before that was talking about --
22 MR. HART: No. Stop. Please
23 stop. I don't want you testifying and coaching
24 the witness.
25 MR. HERNSTADT: -- ideas. You
16
1
2 are misleading with that question. you
3 misstate the testimony.
4 MR. HART: I'm going to ask the
5 witness to walk out if you are going to
6 speechify. It's improper. Objection.
7 MR. HERNSTADT: You can do that
8 if you want. It's not an improper objection.
9 MR. HART: Okay. Then make the
10 objection and --
11 MR. HERNSTADT: Fine. Then
12 what I'm going to ask the reporter to do is
13 could you read back the prior question and
14 answer and then read back the last question?
15 MR. HART: I'm going to ask the
16 witness to step out of the room until
17 Mr. Hernstadt's done filling the record with
18 his testimony. Mr. Appel, I'd ask you to
19 excuse yourself, and I do not want to be
20 impolite to you and ask you to do that.
21 MR. HERNSTADT: Mr. Hart, I
22 have just asked the witness --
23 MR. HART: While the witness is
24 here I don't want you saying anything.
25 MR. HERNSTADT: Bill, you can't
17
1
2 do that.
3 MR. HART: Yes, I can.
4 MR. HERNSTADT: No, you can't
5 do that. I've asked the reporter to read back
6 the prior question and answer and then your
7 question. I've made my objection and now we're
8 pro -- and now we're ready to proceed. I made
9 that clear before you made this dramatic little
10 act here. We are ready to go on if you are
11 ready to grow -- to go on. I made my
12 objection, I explained my objection. You know,
13 I suggest you read the transcript and see
14 Mr. Cooper's speaking objections all through.
15 Now, could you read back the
16 prior question and answer and then the
17 follow-up question?
18 (Record read)
19 MR. HERNSTADT: Subject to my
20 objection you can answer the question. Bill,
21 you've got to take it easy.
22 THE WITNESS: There is a
23 difference between taking other people's works
24 and discussing the ideas that may be inherent
25 to those works.
18
1
2 Q. So you're saying that you could
3 discuss the ideas without actually taking the
4 works and posting them to the internet, right?
5 MR. HERNSTADT: Objection to
6 the form of the question. You can answer that
7 if you can.
8 THE WITNESS: Discussion of the
9 ideas in a work can be possible without posting
10 the work itself.
11 MR. HART: Thank you. I'd like
12 to mark the subpoena, please, with
13 the document request as Exhibit 2.
14 (Thereupon, a Subpoena and
15 Document Request was marked as
16 Appel Exhibit 2 for identification
17 as of today's date)
18 Q. Mr. Appel, I'm going to just show
19 you what the reporter just marked as Exhibit 2
20 and ask you to take a look at that. And the
21 question is, have you seen that document
22 before? And you can take a moment to peruse it
23 before you give me an answer your answer.
24 A. Yes.
25 Q. Okay.
19
1
2 Did you collect any documents in
3 response to that subpoena and document request
4 that we've marked Exhibit 2?
5 A. Yes.
6 Q. When did you do so?
7 A. Yesterday.
8 Q. Did you have any assistance in
9 doing so?
10 A. No.
11 Q. You did it yourself?
12 A. Yes.
13 Q. Okay.
14 And how were you guided in looking
15 for the documents?
16 MR. HERNSTADT: Objection to
17 the form.
18 MR. HART: Fair enough. It was
19 a bad question. I apologize.
20 Q. How do you know what documents to
21 look for?
22 A. The only documents I have with
23 respect to this case are the declarations and
24 attachments that I already filed and an E-mail
25 file of E-mail to and from other people.
20
1
2 Q. What other people?
3 A. I have some E-mail messages that
4 are before the time the attorneys for the
5 defendants first contacted me.
6 Q. Okay.
7 And what time was that just to put
8 it into a context?
9 A. That was in mid-April.
10 Q. All right.
11 A. And -- and I have E-mail after that
12 time, and I have been advised that the E-mail
13 from after that time --
14 Q. Mm-hmm. --
15 A. -- because of who it is with is
16 subject to privilege.
17 Q. Who is it with?
18 MR. HERNSTADT: Let me be
19 clear. It's E-mail with me and I just --
20 MR. HART: I don't want you to
21 be clear. I asked the witness a question. If
22 you object, object.
23 Q. Who is it with?
24 A. It's E-mail with the attorneys for
25 the defense.
21
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2 Q. Okay.
3 Are there any other E-mails that
4 you have after you were contacted by the
5 defendants in mid-April with persons other than
6 the attorneys for the defense?
7 A. Yes.
8 Q. And have you produced those to us,
9 sir?
10 A. No.
11 Q. Why not?
12 A. They are generally with other
13 people who might testify, and -- and I was
14 advised that I didn't have to produce those.
15 Q. I'm sorry. You were advised by
16 whom?
17 A. By the -- by Mr. Hernstadt.
18 Q. And who are these other people that
19 you said might testify?
20 A. Edward Felten, David Touretzky,
21 Peter Ramadge.
22 Q. Peter Remwich?
23 A. Ramadge.
24 Q. Could you spell that for the
25 record?
22
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2 A. R-a-m-a-d-g-e.
3 Q. And where is Peter?
4 A. He's a professor of electrical
5 engineering at Princeton University.
6 Q. Okay.
7 Anybody else?
8 A. There may be -- I don't recall.
9 That -- that -- nothing significant.
10 Q. How do you know that?
11 A. I guess I scanned through the
12 E-mail file.
13 Q. How big is that E-mail file?
14 A. My guess is that it has about 100
15 messages.
16 Q. And this is all post mid-April?
17 A. The E-mails from before mid-April I
18 brought with me.
19 Q. Have you turned those over to me?
20 A. No, I will do so now.
21 MR. HERNSTADT: No, we did.
22 THE WITNESS: Oh, we did?
23 MR. HERNSTADT: Those are those
24 right in front of you with AT your left hand.
25 MR. HART: Let's mark this as
23
1
2 Plaintiff's 3.
3 (Thereupon, a Group of E-mails
4 was marked as Exhibit 3 for
5 identification as of today's date)
6 Q. Mr. Appel, the reporter has just
7 handed you what we've marked as Plaintiff
8 Exhibit 3. Is that the entirety of the E-mail
9 traffic that you referred to a moment ago as
10 having turned over to me?
11 A. Yes.
12 Q. And is this all E-mail that's all
13 post mid-April of 2000 relating to this case?
14 A. This is E-mail of March 2000.
15 Q. This is -- this is before you were
16 --
17 A. Right.
18 Q. -- in contact with defense
19 attorneys?
20 A. That's right.
21 Q. Okay.
22 Are you represented here today by
23 counsel?
24 A. I'm represented by these attorneys
25 (indicating).
24
1
2 Q. I see.
3 MR. HERNSTADT: For the
4 purposes of this deposition.
5 Q. I see. And when did you engage
6 these attorneys?
7 MR. HERNSTADT: We've --
8 MR. HART: Wait. Please.
9 MR. HERNSTADT: Objection to
10 the form of the question.
11 MR. HART: Thank you.
12 MR. HERNSTADT: It assumes
13 questions not in evidence.
14 Q. Fair enough. You can answer.
15 A. We discussed this morning that they
16 would be representing me for -- for the
17 purposes of this deposition.
18 Q. Oh, okay. So all those other
19 E-mails that you had since mid-April concerning
20 this case, they weren't involving
21 communications with your lawyer, were they?
22 MR. HERNSTADT: Objection to
23 the form of the question. You can answer if
24 you can.
25 THE WITNESS: Mr. Garbus told
25
1
2 me that --
3 MR. HERNSTADT: Objection.
4 Don't say what Mr. Garbus told you.
5 THE WITNESS: Okay.
6 Q. It's a pretty straightforward
7 question, Mr. Appel. I'm not trying to trick
8 you here. I just --
9 MR. HERNSTADT: No, I'm
10 directing him not to tell you what Mr. Garbus
11 told you.
12 MR. HART: I didn't ask him for
13 that. Do you want to read back the qustion?
14 MR. HERNSTADT: You can answer
15 the question with that.
16 MR. HART: Let's read the
17 question back. I think that will help the
18 witness.
19 (Record read)
20 THE WITNESS: That's right.
21 Q. Okay.
22 Now, the E-mails before this
23 mid-April time when you were first in
24 communication with defendant's lawyers, have
25 you produced the entirety of those to us
26
1
2 relative to this case --
3 A. Yes.
4 Q. -- or to DeCSS or CS'S.
5 A. Yes.
6 Q. And that's what's in Exhibit 3?
7 A. Yes.
8 Q. When did you first hear of DeCSS?
9 A. It may have been in a phone
10 conversation with David Touretzky.
11 Q. Mm-hmm.
12 A. -- shortly prior to the first
13 E-mail that I've give you which is dated March
14 13 or it may ave been earlier. I can't recall.
15 Q. The E-mail that you referred to
16 from Mr. Touretzky or Dr. Touretzky is
17 reflected to the first page of Exhibit 3?
18 A. I got a phone call from David
19 Touretzky.
20 Q. Okay.
21 A. And this first E-mail is from me to
22 Edward Felten discussing the phone call.
23 Q. I see.
24 Now, prior to the phone call from
25 Dr. Touretzky, had you ever been in
27
1
2 communication with him before?
3 A. I met him in 1981 and I have not
4 had much communication with him since 1985
5 until March of this year.
6 Q. Okay.
7 And the communications that you had
8 with him from '81 to 85, what did they concern
9 generally?
10 A. I was a graduate student at
11 Carnegie-Mellon University where he teaches.
12 Q. Got you.
13 What was the gist of the phone call
14 from Dr. Touretzky?
15 A. He was interested to know whether I
16 would like to contribute to his website, the
17 gallery of CSS descramblers, and would I like
18 to mirror it.
19 Q. Mirror Dr. Touretzky's gallery?
20 A. That's right.
21 Q. Had you, prior to that call, seen
22 Dr. Touretzky's website?
23 A. No.
24 Q. What else was said that in phone
25 call with Dr. Touretzky?
28
1
2 A. I think that's all.
3 Q. Okay.
4 Did he say anything about what was
5 on his website in the phone call?
6 A. I think he described its contents.
7 Q. Can you give me a rough
8 approximation of that description as he gave it
9 to you?
10 MR. HERNSTADT: Objection to
11 the form. You can answer it if you can.
12 THE WITNESS: He said that the
13 website was meant to illustrate that it's very
14 difficult to draw a line between on one hand
15 commuter program source code, and on the other
16 hand other description of an algorithm that is
17 not computer program source code.
18 Q. And by other "other description,"
19 what did you understand that to mean?
20 A. Such things as English language
21 sentences or mathematical notation or other
22 formal or informal ways of describing computer
23 algorithms.
24 Q. Got you.
25 And what -- was there anything else
29
1
2 discussed in the phone call with Dr. Touretzky?
3 A. I don't think so.
4 Q. Okay.
5 What did you do after that phone
6 call relative to this case or that
7 conversation?
8 MR. HERNSTADT: Objection to
9 the form of the question.
10 THE WITNESS: I discussed with
11 Ed Felten whether we should mirror the website,
12 and I made a scientific investigation of what I
13 might contribute to it.
14 Q. Okay.
15 And what did that investigation
16 involve?
17 A. I had a particular scientific idea
18 that would illustrate the difficulty of
19 distinguishing between English language
20 description of a computer algorithm and
21 computer source code, and I investigated the
22 feasibility of concretely demonstrating that
23 idea by means of another computer program.
24 Q. Okay.
25 What other computer program?
30
1
2 A. It would be a computer program that
3 would translate between the English language
4 description of an algorithm and the source code
5 description.
6 Q. Rather than have you repeat it, I'm
7 just going to have here read it back. It may
8 be a function of my deafness and not your --
9 not your answer. If you would you.
10 (Record read)
11 Q. For lack of a better word, and
12 excuse my ignorance, would this be a program
13 that would function like a compiler-decompiler
14 to convert the English language version of a
15 program into some other form of computer
16 program?
17 MR. HERNSTADT: Objection to
18 the form of the question. If -- if you can
19 answer it, go ahead.
20 THE WITNESS: It would
21 generally translate the source code description
22 into an English language description and back.
23 Q. I see.
24 Did you ever actually create that
25 program?
31
1
2 A. I found such a program that someone
3 had created a few years previously.
4 Q. Uh-huh.
5 A. And I investigated whether it would
6 be applicable to something like DeCSS.
7 Q. Was it?
8 A. Not in the form that I found it.
9 Q. Why not?
10 A. It appears to be tuned a little too
11 closely to a different situation.
12 Q. All right. Get technical with me
13 now.
14 A. Okay.
15 Q. What do you mean, "tuned to a
16 different situation?"
17 A. The author of that program --
18 Q. Let's but a name on that program,
19 please.
20 A. I believe it's called --
21 Q. I guess the record will reflect
22 that you're referring to Exhibit 3.
23 A. I believe it's called c2txt2c.
24 Q. Okay. All right.
25 A. It was original is designed by its
32
1
2 author to translate a computer program called
3 Blowfish --
4 Q. Right.
5 A. -- to English prose and back again.
6 Q. Okay. Got you.
7 And that program c2 whatever that
8 you just referred to did not work in doing that
9 with DeCSS when you tried it?
10 A. That's right.
11 Q. Okay.
12 Do you know why?
13 A. Basically because that program was
14 a prototype demonstration of that idea.
15 Q. I see.
16 A. That was not implemented in full
17 generality.
18 Q. Got you.
19 So did you wind up contributing
20 anything to Dr. Touretzky's gallery?
21 A. No.
22 Q. Okay.
23 Did you have further communications
24 with Dr. Touretzky after that first phone call
25 about the subject of contributing something to
33
1
2 his gallery?
3 A. Yes. Those are reflected in the
4 E-mail that I've given you.
5 Q. Were they E-mail communications or
6 phone calls that are reflected by E-mail
7 communication?
8 A. I believe they were all E-mail
9 communications.
10 Q. Got you.
11 And would the E-mails that are in
12 Exhibit 3 reflected the entirety of your
13 communications with Dr. Touretzky concerning
14 this case?
15 MR. HERNSTADT: Objection to
16 form. As -- it assumes facts -- excuse me. It
17 misstates the testimony before. There is a
18 phone call prior to that.
19 MR. HART: Understood.
20 Q. Taking that into account.
21 A. I don't recall if there were any
22 other phone calls between me and Mr. Touretzky.
23 Q. Okay. Okay.
24 Did you ever have occasion to look
25 at Dr. Touretzky's site?
34
1
2 A. Yes.
3 Q. Okay.
4 Do you recall whether it contained
5 DeCSS in binary form or as an executable
6 utility?
7 A. I don't recall.
8 MR. HERNSTADT: I'm sorry.
9 Could you read back the question?
10 (Record read)
11 Q. Do you have any understanding of
12 when Dr. Touretzky created that site containing
13 the gallery as we're referring to it?
14 A. No.
15 Q. Okay.
16 A. It must have been before he called
17 me.
18 Q. I understand.
19 But you don't know whether it was
20 before or after this lawsuit commenced, do you?
21 MR. HERNSTADT: Objection.
22 Asked and answered.
23 THE WITNESS: Don't know when.
24 Q. Have you ever used DeCSS?
25 A. No.
35
1
2 Q. Now, you said a minute ago that you
3 were investigating the possibility of running
4 this c2 -- excuse me -- program that you
5 mentioned on DeCSS to see if it would work with
6 DeCSS. And how did you do you that if you
7 didn't have DeCSS?
8 MR. HERNSTADT: Objection to
9 form. Go ahead and answer if you can.
10 THE WITNESS: I didn't say I
11 didn't have DeCSS.
12 Q. I'm sorry.
13 A. I said I didn't use it.
14 Q. So is it -- fair enough. I
15 understand.
16 When did you first have DeCSS?
17 A. I didn't say I did have DeCSS.
18 Q. Okay. I think you may be smarter
19 than me and I apologize for that. I don't want
20 to, you know, make this drag out. Let me try
21 and phrase a question that you can provide a
22 reasonably intelligent answer to.
23 MR. GARBUS: Bill, how long do
24 you expect to go today?
25 MR. HART: We are moving along
36
1
2 so, you know, as long as we can move along I --
3 MR. GOLD: Was it really
4 necessary to interrupt the testimony to ask him
5 that question?
6 MR. HERNSTADT: Please, Bill, I
7 won't interrupt you. Go ahead.
8 Q. Okay.
9 Have you ever had DeCSS in your
10 possession or control?
11 A. I don't remember. I have certainly
12 looked at it on the website.
13 Q. I see.
14 A. And I don't remember whether I
15 downloaded to it my own machine.
16 Q. Okay.
17 And when you say you looked at it
18 on a website, what website was it that you
19 looked at?
20 MR. HERNSTADT: Objection to
21 form. You can answer.
22 THE WITNESS: I don't remember.
23 I noticed it was was available on several
24 websites, and I looked at it on one of those
25 websites. I don't recall specifically which
37
1
2 one.
3 Q. Do you remember what time period
4 this occurred in? Was this after the call from
5 Dr. Touretzky?
6 A. Yes.
7 Q. Okay. May I? We only have this
8 copy. I have to have copies made. I apologize
9 for that. Thank you.
10 MR. HERNSTADT: You're welcome.
11 Q. So I'm just trying to read the
12 header here.
13 MR. HERNSTADT: Bill, I'm
14 sorry. Do you want to take two minutes and
15 read through them because I wouldn't mind going
16 --
17 MR. HART: No, no, because I'm
18 going to ask the witness to help me unless you
19 need to go the bathroom.
20 MR. HART: Off the record.
21 Marty can continue to move things along because
22 he so desires to move them along.
23 MR. GARBUS: Just let him go to
24 the bathroom.
25 MR. HART: I guess we are.
38
1
2 THE VIDEOGRAPHER: The time now
3 is 11:10 a.m. We are going off the record.
4 (Informal discussion held off
5 the record)
6 THE VIDEOGRAPHER: The time now
7 is 11:16 a.m. We are back on the record.
8 Q. Okay. Mr. Appel. We were talking
9 about your first familiarity with DeCSS, and I
10 believe you had said that you had seen it on a
11 website but you couldn't remember which site;
12 is that correct?
13 A. That's correct.
14 MR. HERNSTADT: Objection. I
15 think that misstates the testimony, but to
16 ahead.
17 MR. HART: I'm sure it does,
18 and it wasn't my intention to do so and I
19 apologize profusely.
20 MR. HERNSTADT: I'm just making
21 the record.
22 Q. But to move this along, could you
23 look at the headers on this Exhibit 3 pack of
24 E-mail and place for me in time when you first
25 that had that conversation with Dave Touretzky?
39
1
2 A. The first E-mail is dated March 13
3 and I believe that it was the same day that --
4 that David called me.
5 Q. And was David at -- Touretzky at
6 that time in the process of assembling his
7 gallery, to your knowledge?
8 A. Yes, but I believe he had already
9 assembled the bulk of it.
10 Q. When did you look at his website
11 for the first time?
12 A. I believe also on March 13.
13 Q. Got you.
14 But you don't remember if it
15 contained any executable DeCSS on it?
16 A. That's right.
17 MR. HERNSTADT: Object to the
18 form.
19 Q. Do you recall how you found the
20 website that you used to look at DeCSS for the
21 first time?
22 A. Yes.
23 Q. How?
24 A. I believe I went to a search engine
25 and I typed in DeCSS, and I examined the
40
1
2 listings until I found one containing the
3 source code.
4 Q. When you say you examined the
5 listings, does that mean that you actually
6 clicked on some of the entries brought up by
7 the search engine to view what was there?
8 A. Yes.
9 Q. Okay. And --
10 MR. HART: I'd like you to read
11 two answers back, please.
12 (Record read)
13 Q. Is it your testimony that there
14 were listings brought up by the search engine
15 that you examined that did not contain DeCSS
16 source code?
17 MR. HERNSTADT: Objection to
18 the form of the question.
19 THE WITNESS: Yes.
20 Q. Okay.
21 Did those listings contain DeCSS in
22 object or binary executable form?
23 MR. HERNSTADT: Objection to
24 the form of the question. Compound. But go
25 ahead and answer if you can.
41
1
2 THE WITNESS: I don't recall.
3 Q. Do you remember how many listings
4 you went through as a result of that search
5 engine search until you found one that had
6 source code?
7 A. My guess is approximately 10.
8 Q. 10. Okay.
9 Do you recall if any of the
10 listings on the search engine that you looked
11 at before you got to the one containing source
12 code had DeCSS in object or binary or
13 executable form?
14 MR. HERNSTADT: Objection to
15 the form. You can answer.
16 THE WITNESS: I don't recall.
17 Q. Did you download DeCSS at that time
18 after you found it through the search engine
19 search?
20 A. As I've already said, I know I
21 viewed it on the screen and I don't recall
22 whether I downloaded it.
23 Q. And the version that you viewed as
24 you've said is -- was source code, correct?
25 A. Yes.
42
1
2 Q. Okay.
3 What language was that written in?
4 A. In C.
5 Q. And is C intelligible to you just
6 looking at it?
7 A. Yes.
8 Q. Is there any value in your
9 professional opinion to looking at object or
10 binary or source code?
11 A. Yes.
12 Q. Okay.
13 Can you read object code?
14 A. With difficulty.
15 Q. Okay.
16 Do you consider yourself specially
17 skilled in that regard?
18 MR. HERNSTADT: Object to the
19 form of the question. It's vague. If you can
20 answer that.
21 THE WITNESS: I guess I -- I
22 guess I don't know what you mean.
23 Q. Okay. I'm just looking for the
24 truth here. Is -- just to get our terminology
25 straight, is there any difference from your
43
1
2 standpoint between object code and a binary
3 executable?
4 A. No.
5 Q. Okay.
6 Is object code normally
7 intelligible to human beings?
8 A. With difficulty, yes.
9 Q. Okay.
10 And what difficulty is that, sir?
11 A. It's a notation for writing
12 computer programs that is more suited to
13 execution by machine than it is suited for
14 reading by humans.
15 Q. And from your professional
16 standpoint, is it much easier to read source
17 code than object code?
18 A. Yes.
19 Q. Okay.
20 And in terms of viewing or
21 analyzing computer code generally, is it much
22 easier to do so in source code form rather in
23 than in object code form?
24 MR. HERNSTADT: Object to the
25 form of the question.
44
1
2 THE WITNESS: For most
3 purposes.
4 Q. And what purposes would object code
5 have value in?
6 MR. HERNSTADT: Object to the
7 form of the question. You can answer it if you
8 can.
9 THE WITNESS: There are several
10 purposes. One is when one doesn't completely
11 trust correctness of the translation from
12 source code to object code.
13 Q. Mm-hmm.
14 A. One is when one wants to analyze in
15 detail the efficiency of the program.
16 Q. Mm-hmm.
17 A. It's easier sometimes to do that
18 with object code than with source code.
19 Q. Mm-hmm.
20 A. And one is for the purpose of
21 teaching about computer architecture, that is,
22 in the introduction to computer science class
23 at Princeton University we teach students how
24 you to read and write both source code and
25 object code.
45
1
2 Q. I see.
3 Have you ever had occasion to use
4 DeCSS object code in teaching at Princeton?
5 MR. HERNSTADT: Objection to
6 the form of the question. It assumes facts not
7 in evidence. But if you can answer it, go
8 ahead.
9 THE WITNESS: I have not used
10 DeCSS object code in teaching at Princeton.
11 Q. Have you used DeCSS source code in
12 teaching at Princeton?
13 MR. HERNSTADT: Objection to
14 the form of the question. He's never used
15 DeCSS. He said that.
16 MR. HART: Just --
17 MR. HERNSTADT: You can answer
18 the question if you can.
19 THE WITNESS: No no.
20 Q. Now, when you said a minute ago
21 that there were certain values to having DeCSS
22 in -- in object code form, is that because
23 DeCSS and object code form will run on a
24 computer?
25 MR. HERNSTADT: I'm sorry.
46
1
2 Could you read that question back, please?
3 (Record read)
4 MR. HERNSTADT: Objection to
5 the form of the question. You can answer that
6 if you know.
7 THE WITNESS: I don't think I
8 did say specifically that it was useful to have
9 DeCSS in object code form, but one reason it
10 can be helpful to have programs, including
11 DeCSS, in object code form is to analyze the
12 speed at which they will run on various kinds
13 of computers.
14 Q. Okay.
15 A. And another is for the purposes of
16 running it to observe its behavior.
17 Q. Okay.
18 And both of those answers entail
19 actually running the program?
20 A. The first of those answers may or
21 may not entail actually running a program.
22 Q. And that related to what aspect of
23 --
24 A. To estimating the speed at which
25 the program would run.
47
1
2 Q. Okay.
3 And how do you discern that?
4 MR. HERNSTADT: Objection to
5 the form. Go ahead. If you can.
6 THE WITNESS: Okay. There is a
7 part of the field of computer science which is
8 -- involves estimating the efficiency of
9 programs even without running them, because one
10 may want to know how fast it will be to run on
11 a -- a particularly long running program or on
12 a large input where there is not actually time
13 to run it.
14 Q. And how does one discern that?
15 A. One would examine the sequence of
16 instructions that will be executed, one could
17 calculate, let's say, for each frame of the
18 video the sequence of instructions in the
19 program would need to be executed, and
20 calculate how long would it take to do.
21 Q. And is that based in any part upon
22 the size of the program in object code form?
23 MR. HERNSTADT: Object to the
24 form. Go ahead.
25 THE WITNESS: In part. Usually
48
1
2 the size of the program as a whole is not the
3 most relevant thing.
4 Q. And what is?
5 A. An analysis of which instructions
6 in the inner loop of the program will be
7 executed in the common case.
8 Q. But in your examination of DeCSS as
9 you described it earlier in your testimony you
10 did not look at object code, correct?
11 A. That's right.
12 Q. Now, I'd just like to get a sense
13 on this record of how common it is for people
14 to be able to read object code. And can you
15 give me a sense of that in your professional
16 opinion?
17 MR. HERNSTADT: Objection to
18 the form of the question. If you can answer
19 it, go ahead.
20 THE WITNESS: I would guess
21 that most people who have taken approximately
22 three or four undergraduate courses in computer
23 science would be able to read object code,
24 although with difficulty.
25 Q. Okay.
49
1
2 And you still have difficulty
3 reading object code; is that correct?
4 MR. HERNSTADT: Objection to
5 the form. It that's quite vague. If you can
6 answer that, go ahead.
7 THE WITNESS: Source code is
8 easier to read than object code.
9 Q. Got it.
10 A. In general.
11 Q. And just so the record's clear in
12 this place, how long have you been in the
13 computer area as a specialist combining both
14 our undergraduate, graduate, postgraduate and
15 teaching and other work?
16 A. Since about 1976.
17 Q. Okay.
18 Do you have a computer in your
19 office?
20 A. Yes.
21 Q. Do you have a computer at home?
22 A. Yes.
23 Q. Do you have internet connection in
24 your office?
25 A. Yes.
50
1
2 Q. Do you have internet connection in
3 your home?
4 A. Yes.
5 Q. Can you tell me in basic terms what
6 kind of connection you have in your office and
7 your home respectively?
8 MR. HERNSTADT: Objection to
9 the form. Go ahead.
10 THE WITNESS: My office
11 computer is connected to the internal network
12 of the department of computer science at
13 Princeton, which is connected to the internet
14 by some sort of high speed connection, and I'm
15 not exactly sure which kind.
16 Q. Okay.
17 A. And my computer at home is
18 connected by a DSL line directly to the
19 internal network of the department of computer
20 science.
21 Q. Can you put the approximate speed
22 of those network connections into some kind of
23 context for us, like gigabytes bites or
24 megabytes per second?
25 MR. HERNSTADT: Objection to
51
1
2 the form.
3 THE WITNESS: I believe that
4 the effective bandwidth from my home to my
5 office is about two megabytes per second.
6 Q. Okay.
7 A. And I don't know what the bandwidth
8 is from my office to the internet.
9 Q. Do you think it's higher or lower
10 than your your home.
11 A. It's higher.
12 Q. Do you own a DVD player?
13 A. No.
14 Q. Ever hear of Napster?
15 A. Yes.
16 Q. Can you tell me what your
17 understanding is of Napster?
18 A. Napster is --
19 MR. HERNSTADT: I'm going to
20 object. This is -- well, go ahead. This is
21 certainly beyond --
22 MR. HART: You're right. Go
23 ahead.
24 MR. HERNSTADT: This is beyond
25 the scope of what his expertise is.
52
1
2 MR. HART: Of course it is.
3 MR. HERNSTADT: Go ahead.
4 MR. HART: I'm sure it is
5 irrelevant, too. But let's go ahead.
6 MR. HERNSTADT: It is
7 irrelevant.
8 MR. HART: I was being
9 facetious for the record.
10 MR. HERNSTADT: I wasn't for
11 the record. Go ahead.
12 THE WITNESS: Napster is a
13 directory service and enables its users to
14 share MP3 files across the internet.
15 Q. Do you believe it's technically
16 feasible to engage in conduct like Napster with
17 video files?
18 MR. HERNSTADT: Objection to
19 the form of the question. Are you asking for
20 his opinion as an expert or are you asking him
21 for his reaction as a -- as someone who's had
22 familiarity in the field?
23 MR. HART: Take it any way you
24 want to give it.
25 MR. HERNSTADT: Well, it lacks
53
1
2 foundation. Go ahead.
3 THE WITNESS: It's my
4 understanding that the video files are too
5 large to conveniently exchange on the internet.
6 Q. Okay.
7 And what do you base that
8 understanding on?
9 A. I guess reading some of the
10 documents connected with this case and my own
11 understanding of the commonly available
12 internet connection bandwidths and the size of
13 video files.
14 Q. Got you.
15 A. Although I wouldn't say I have
16 special expertise in those areas.
17 Q. Got you. I got you.
18 Do you have any expertise in
19 connection with digital video?
20 A. Aside from a familiarity with some
21 of the terminology, I would say no.
22 Q. Do you have any expertise or
23 special knowledge in connection with video
24 compression schemes?
25 A. I have taken a college course in
54
1
2 which video compression was covered, and I have
3 read articles on the subject and I am familiar
4 with data compression in other contexts.
5 Q. When did you take the college
6 course?
7 A. About 1980.
8 Q. Okay.
9 Are you aware if anything's changed
10 much since then in the video compression area?
11 MR. HERNSTADT: Objection to
12 the form of the question.
13 THE WITNESS: I'm sure it has.
14 Q. Okay.
15 A. My expertise is not specifically in
16 video compression. I have read articles from
17 time-to-time that touch on it.
18 Q. Okay. Got you. Okay.
19 Now, just to be clear, and I -- you
20 know -- you've never used DeCSS to encrypt a
21 DeCSS encoded movie, right?
22 MR. HERNSTADT: Objection.
23 Asked and answered.
24 THE WITNESS: That's right.
25 Q. Do you know how many university
55
1
2 students in the United States alone have access
3 to the kind of bandwidth that you were
4 describing is available to you at your school?
5 MR. HERNSTADT: Objection to
6 the form of the question. If -- if you can
7 possibly answer it, go ahead.
8 THE WITNESS: I don't know.
9 Q. Has Napster been a problem at
10 Princeton, to your knowledge?
11 MR. HERNSTADT: Objection to
12 the form of the question. It's vague.
13 THE WITNESS: Not to my
14 knowledge.
15 Q. Are you aware whether Napster has
16 been banned at any colleges or universities
17 within the United States?
18 A. I believe I have read that some
19 universities have asked their students not to
20 use Napster.
21 Q. Okay.
22 Do you know why?
23 A. I believe that one of the reasons
24 is that they were using up too much of the
25 bandwidth of that college's internet
56
1
2 connection.
3 Q. Using up too much bandwidth of the
4 university's connection in doing what?
5 A. In shipping MP3 files back and
6 forth from the university to the rest of the
7 internet.
8 Q. Have you in your reading or through
9 any other means of -- to your knowledge, any
10 understanding as to whether the use of Napster
11 as you've just described it has had an impact
12 on record companies or recording artists?
13 MR. HERNSTADT: Objection to
14 the form of the question. I object to this
15 entire line of questioning. This is not an
16 area that Professor Appel has stated that he is
17 familiar -- that he's an expert in. And I
18 think his answers prior to this have explained
19 that his familiarity is fairly limited. That
20 said, you can go ahead.
21 THE WITNESS: I believe I may
22 have read articles about the impact of Napster
23 on the recording industry, but I don't remember
24 any specific details.
25 Q. Okay.
57
1
2 By "impact," are we talking about
3 economic impact, lost sales, like that?
4 A. I guess, you know, any kinds of
5 impact.
6 Q. Any kinds of impact is -- is your
7 answer?
8 A. I have read articles about the
9 impact of Napster on the recording industry and
10 I don't recall what the details tails of those
11 articles were.
12 MR. GOLD: May I ask the
13 reporter to mark that last objection of
14 Mr. Hernstadt's?
15 MR. HERNSTADT: I think you
16 have to identify yourself for the record.
17 MR. GOLD: My name is Leon for
18 the record.
19 MR. HERNSTADT: Leon Gold.
20 MR. GOLD: Yes. But my website
21 name is Merbl and I come from Mars and I sell
22 Mounds.
23 MR. HART: Come on, Leo,
24 please.
25 MR. HERNSTADT: Make sure this
58
1
2 is all on the record.
3 MR. GOLD: It is.
4 MR. HART: And everyone's
5 smiling.
6 MR. GOLD: Everyone needed a
7 bit of humor.
8 What I'd like to do is make a
9 -- a index of certain of the objections of
10 Mr. Hernstadt, and we'll tell you which. And
11 the last one is one I'd like to mark and make
12 an index. Our contention is going to be that
13 he's coaching the witness and telling him what
14 to say.
15 MR. HERNSTADT: That's fine.
16 I'd like to reiterate my objectionl Are you
17 going to continue with this line of
18 questioning? We've told you what Professor
19 Appel is going to be our witness for, okay?
20 And I object to this entire line of
21 questioning. This is clearly irrelevant.
22 MR. GOLD: You said that ones
23 before.
24 MR. HERNSTADT: Are you going
25 do continue it for much longer?
59
1
2 MR. HART: If we began get away
3 from lawyers yakking and take to the witness, I
4 guess we can move off the subject quicker and
5 that's my goal.
6 MR. HERNSTADT: You let him
7 talk to you like this, Leo?
8 MR. GOLD: I thought that --
9 MR. HART: With all due
10 respect, counsel.
11 MR. GOLD: Everything he said
12 was true. And the answer is yes.
13 Q. Is that impact positive or negative
14 insofar as you understood it based on your
15 reading and knowledge?
16 A. I don't recall. I probably read
17 articles with both points of view.
18 Q. Do you have a personal point of
19 view in terms of the click impact of that the
20 economic impact of that behavior?
21 MR. HERNSTADT: Objection to
22 that question.
23 THE WITNESS: I'm not an
24 economist and --
25 Q. Okay.
60
1
2 A. -- I don't have any particularly
3 relevant speculations about the economics of
4 the recording industry.
5 Q. Okay.
6 Just to be clear, is the technology
7 already in place today to enable so-called file
8 sharing of feature-length movies, to your
9 knowledge?
10 MR. HERNSTADT: Object to the
11 form of the question. Lacks foundation.
12 Answer it if you can.
13 THE WITNESS: I believe there
14 are several file sharing protocols now
15 available. And it's plausible that some of
16 them can accept files of arbitrary size. And I
17 don't know whether they would have adequate
18 performance to practically share multi-gigabyte
19 files.
20 Q. Got you.
21 When you say you believe there are
22 file sharing protocols, I believe you used the
23 word, can you put a name to those?
24 A. Such things as Newtela (sic) and
25 Freenet.
61
1
2 Q. Freenet. Any others?
3 A. Not whose names I recall.
4 Q. How did you learn about those?
5 A. By reading in the newspapers.
6 Q. Do you recall which newspapers?
7 A. Most likely the New York Times.
8 Q. Did you ever visit the 2600
9 website?
10 A. Yes.
11 Q. When was the first time?
12 A. Must have been at some point after
13 I was first contacted by the defense.
14 Q. Okay.
15 And we've said earlier that was
16 sometime in mid-April?
17 A. That's right.
18 Q. Who contacted you?
19 A. Mr. Hernstadt.
20 Q. Uh-huh.
21 And what did he say to you?
22 A. He asked if I would be willing to
23 file a declaration --
24 Q. Right.
25 A. -- in this case.
62
1
2 Q. And what did you say?
3 A. I said I would be willing.
4 Q. How did you know about the case?
5 A. I knew about the case in general
6 terms I guess after my phone call with
7 Mr. Touretzky.
8 Q. Okay.
9 Had you hearsd of 2600 before your
10 phone call with Dr. Touretzky?
11 A. I don't recall.
12 Q. In the conversation that you had
13 with Mr. Hernstadt, and this again for placque
14 of a better date is mid-April of this year,
15 correct?
16 A. That's right.
17 Q. Okay.
18 Did he say anything more than would
19 you be willing to file a declaration in the
20 case?
21 MR. HERNSTADT: Object to the
22 form of the question. Go ahead.
23 THE WITNESS: Can you repeat
24 the question?
25 Q. Yes.
63
1
2 In the first phone call with
3 Mr. Hernstadt, did Mr. Hernstadt say anything
4 more beyond would you be willing to file a
5 declaration in this case, sir?
6 MR. HERNSTADT: Objection to
7 the form of the question.
8 THE WITNESS: I believe the
9 first communication I had from Mr. Hernstadt
10 was by E-mail.
11 Q. Do you have that E-mail?
12 MR. HERNSTADT: Asked and
13 answered.
14 THE WITNESS: I have -- I have
15 that E-mail.
16 Q. Did you produce it to us?
17 A. No.
18 Q. Why not?
19 A. I was visioned by Mr. Hernstadt
20 that I need not produce it.
21 Q. And Mr. Hernstadt advised you have
22 that when, yesterday?
23 A. I believe on Saturday.
24 Q. Okay.
25 So your first communication with
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1
2 Mr. Hernstadt was via E-mail, correct?
3 A. That's right.
4 Q. And do you recall the gist of that
5 E-mail?
6 A. He asked me if I would be willing
7 to file a declaration in this case. That would
8 -- and I think that was the entire gist of it.
9 Q. Really?
10 And did you respond to
11 Mr. Hernstadt?
12 A. Yes.
13 Q. How?
14 A. I believe I called him on the
15 phone.
16 Q. Okay.
17 What did you say to him?
18 A. I think I said yes, and I believe
19 that in that first phone call that we did not
20 discuss anything much more beyond that I would
21 file a declaration.
22 Q. And at that point what you knew
23 about the case was limited to what you had
24 learned from Dr. Touretzky; is that correct?
25 MR. HERNSTADT: Objection to
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1
2 the question -- form of the question.
3 Misstates it.
4 THE WITNESS: From what I
5 learned from David Touretzky and then my
6 subsequent investigation of what was on the
7 web.
8 Q. Okay.
9 And when did that subsequent
10 investigation cleanse?
11 A. It would have been in mid March
12 after I heard from Dr. Touretzky.
13 Q. And what did that investigation
14 consist of?
15 A. Finding websites containing DeCSS,
16 I believe at that time reading Frank
17 Stephenson's article describing crypt analysis
18 of CSS, reading some of the court documents
19 such as the injunction against linking.
20 Q. And where did you read that?
21 A. I don't recall.
22 Q. Anything else?
23 A. Not that I specifically recall.
24 Q. And this was -- and this again was
25 in mid-March after your initial communications
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1
2 with Dr. Touretzky, right?
3 A. Yes.
4 Q. Okay.
5 Did Mr. Hernstadt give you any idea
6 in your initial communications with him about
7 the timing of this case and when it was going
8 to trial and like that?
9 A. The only timing issues that he
10 discussed with me were about by when the
11 declaration had to be filed.
12 Q. And what did he tell you in that
13 regard?
14 A. I think the time frame was on the
15 order of a few days, something under a week,
16 but I don't recall exactly.
17 Q. And can you place a date on when
18 this conversation with Mr. Hernstadt occurred?
19 A. I don't have any documents with me
20 that would place a date on it, but would guess
21 that it's April 21st.
22 Q. That's a pretyy -- that sounds like
23 a very precise guess. Why did you pick April
24 21st, sir?
25 A. Because earlier this week I
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1
2 reviewed by E-mail file and that date stands
3 out.
4 Q. So these E-mails that we don't have
5 were also reviewed by you in preparation for
6 this deposition?
7 MR. HERNSTADT: Objection to
8 the form of the question. Misstates the
9 witness's testimony.
10 Q. Is that right? That right?
11 MR. HERNSTADT: Is that a
12 question?
13 MR. HART: Yeah.
14 THE WITNESS: I believe I
15 scanned the headers of them.
16 Q. How many communications have you
17 had with Mr. Hernstadt or anyone at Frankfurt
18 Garbus law office since your first contact with
19 them in mid-April of this year?
20 A. By E-mail and otherwise?
21 Q. Sure.
22 A. Quite a few. I don't remember -- I
23 don't know the number.
24 Q. 20, 50, 100?
25 MR. HERNSTADT: Objection to
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1
2 the form of the question.
3 Q. Just give me -- I'm trying to get a
4 range here. Obviously I don't expect --
5 A. 50.
6 Q. 50? 5-0?
7 A. 5-0.
8 Q. And how many of these
9 communications -- let me ask you this: How --
10 are you in contact exclusively with
11 Mr. Hernstadt or were there other lawyers at
12 the Frankfurt Garbus law firm that you have
13 communicated with?
14 A. I've also communicated with
15 Mr. Martin Garbus.
16 Q. Can you tell me how many of those
17 communications were in E-mail form as opposed
18 to telephone conversation?
19 A. Maybe on the order of 30 E-mails.
20 Q. Okay.
21 A. And --
22 Q. 20 telephone calls roughly?
23 A. And approximately 20 phone calls.
24 Q. Got you.
25 Did you have any E-mail
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1
2 communications with Mr. Garbus?
3 A. Yes.
4 MR. GARBUS: Bill, I want to
5 ask you -- I type awfully. If you get my
6 E-mails you would barely be able to read them.
7 MR. HART: Thanks.
8 Q. Can you give me a rough
9 approximation of how many of these
10 communications occurred prior to your filing of
11 a declaration in this case?
12 A. Maybe five.
13 Q. Mm-hmm.
14 And what were the subjects of the
15 other 45 communications you had with Frankfurt
16 Garbus subsequent to your filing of a
17 declaration in this case?
18 MR. HERNSTADT: Objection to
19 the form of the question.
20 THE WITNESS: They were about
21 many aspects of the case. I guess they were to
22 identify what areas I might best testify about.
23 Q. This is after you filed your
24 declaration?
25 A. That's right.
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1
2 Q. Best testify at the trial of the
3 case?
4 A. Right.
5 Q. And, again, when were you first
6 told that you might or would testify at the
7 trial of this case?
8 MR. HERNSTADT: Objection to
9 the form of the question.
10 Q. Approximately.
11 MR. HERNSTADT: Assumes facts
12 not in evidence.
13 THE WITNESS: I would guess
14 that it was perhaps a week or two after the
15 filing of the declaration.
16 Q. Okay.
17 And by the filing of the
18 declaration, just to be clear we are looking at
19 -- excuse me -- at Exhibit 1, I believe? And
20 if you just take a look at the date of that
21 last page.
22 A. April 27.
23 Q. Okay.
24 And what were you told about when
25 the case would go to trial at that point?
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1
2 A. I was told that it would go to
3 trial July 17.
4 Q. Now, apart from communications with
5 defense counsel about the case and your
6 perusing the internet concerning it, is there
7 any other way you learned about the substance
8 of this case or what the issues were, like
9 that?
10 MR. HERNSTADT: Objection to
11 the form of the question.
12 THE WITNESS: I believe I've
13 also read about the case in the newspaper.
14 Q. Mm-hmm. Okay.
15 Now, in perusing the net, did you
16 have occasion to find DeCSS in the form of an
17 executable utility?
18 MR. HERNSTADT: Objection.
19 Asked and answered.
20 THE WITNESS: When I was
21 perusing the net I was particularly looking for
22 source code.
23 Q. And that was for the reasons you
24 described earlier in your testimony today?
25 A. No. I believe it was because I
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1
2 would be more easily able to recognize what it
3 was by looking at it in source code form. So
4 it was just an easier thing --
5 Q. Got you.
6 A. -- to look at.
7 Q. Do you know if Frank Stephenson
8 posts DeCSS as an executable utility?
9 A. I don't know.
10 Q. Now, the paper that's attached as
11 an exhibit to your declaration, why don't we
12 take a quick look at that for a moment, dated
13 February 17, 2000, yes?
14 A. Yes.
15 Q. Was this submitted to the copyright
16 office in connection with its rule-making
17 inquiry?
18 A. Yes.
19 Q. When?
20 A. On February 17.
21 Q. Was it written for that purpose?
22 A. Yes.
23 Q. And were you aware at the time you
24 wrote this piece about this case?
25 A. No.
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1
2 Q. Now, this was co-authored by
3 Dr. Felten?
4 A. Yes.
5 Q. And Dr. Felten is a colleague of
6 yours at Princeton?
7 A. Yes.
8 Q. Are you in you daily contact?
9 A. More or less.
10 Q. Okay.
11 Are your offices located close to
12 each other?
13 A. Yes.
14 Q. Do you work together on projects?
15 A. Yes.
16 Q. Okay.
17 Do you co-teach or co-conduct
18 seminars or engage in other activities at the
19 university in connection with your academic
20 activities?
21 MR. HERNSTADT: Objection to
22 the form of the question.
23 THE WITNESS: From time-to-time
24 there are teaching and research guidance
25 activities that we do jointly.
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1
2 Q. Got you.
3 Is this the first piece you've ever
4 authored with Dr. Felten?
5 A. No.
6 Q. Have you ever discussed this case
7 with Dr. Felten?
8 A. Yes.
9 Q. When was your first occasion to do
10 that?
11 A. I know I discussed it with him in
12 the days following harsh 13th, I believe that
13 we had a -- we may have had some discussion of
14 it earlier than that that we discussed that
15 there were some court cases involving DVDs.
16 Q. So it's possible that you may have
17 learned of this case not first through
18 Dr. Touretzky but indeed through Dr. Felten; is
19 that possible?
20 MR. HERNSTADT: Objection to
21 the form of the question.
22 MR. HART: I understand you.
23 THE WITNESS: Maybe from
24 Dr. Felten or maybe in some other way.
25 Q. Okay.
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1
2 A. But my awareness of this case let's
3 say prior to March 13 as in vague and in
4 general determines.
5 Q. So you refer, for example in your
6 article to searching the text of Shakespearean
7 plays. I'm looking at Page 2 of your article
8 as it appears as an attachment to your
9 declaration.
10 MR. HERNSTADT: Point out where
11 you are looking.
12 MR. HART: It's the lower right
13 column.
14 THE WITNESS: Okay. Yes.
15 Q. All right?
16 Is it your understanding is that
17 the works of Shakespeare are protected by
18 copyright or do you have any understanding in
19 that regard?
20 A. I believe they are not.
21 Q. Okay.
22 What relevance do you believe this
23 article has to this case?
24 MR. HERNSTADT: Objection to
25 the form of the question. Go ahead.
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1
2 THE WITNESS: This article
3 describes many kinds of scholarly analyses of
4 both text as well as audio and video and other
5 media, and scholars who wish -- who may wish to
6 apply these kinds of analyses may wish to apply
7 it both to uncopyrighted and copyrighted
8 material. And to do that they will need access
9 unencrypted digital encrypted form of the
10 material.
11 Q. Got you.
12 So in your view, is there value in
13 posting say an entire copyrighted work to the
14 internet in order to share it for academic
15 purposes with others?
16 MR. HERNSTADT: Object to the
17 question. Lacks foundation.
18 THE WITNESS: The examples that
19 we give -- the anecdotal examples that we give
20 in the article are scholars who have purchased
21 copies of copyrighted material might wish to
22 apply these analyses, and that that would be
23 the appropriate way for scholars to access
24 copyrighted material.
25 Q. Okay.
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1
2 So if you purchased a copy of
3 someone's work, is it your view that you it
4 would then be appropriate if you saw the need
5 for it to post that work to the internet in
6 order to engage in academic or scholarly work
7 discussion it?
8 MR. HERNSTADT: Object to the
9 form of the question. Misstates what's in this
10 article.
11 MR. HART: I'm not -- I'm
12 asking for his view.
13 THE WITNESS: No.
14 Q. Inappropriate?
15 A. It's inappropriate.
16 Q. Why?
17 A. Because the legitimate uses of
18 copyrighted material do not generally include
19 republishing it.
20 Q. And that's true whether you own a
21 copy of it or not, right?
22 MR. HERNSTADT: Just to
23 reiterate, I'm instructing him not to make
24 legal answers. Okay.
25 MR. HART: Absolutely.
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1
2 THE WITNESS: That's right.
3 Q. Okay.
4 MR. GOLD: Can you mark that
5 objection? Thank you.
6 MR. HERNSTADT: Dan, are you
7 suggesting that I'm coaching the witness?
8 Because I take great offense at that.
9 MR. HART: We want to move
10 along. Let's not have arguments, please.
11 MR. GOLD: Then you will have
12 to take offense.
13 MR. HERNSTADT: I have to what?
14 MR. GOLD: You take -- what did
15 you say?
16 MR. HERNSTADT: Great offense.
17 MR. GOLD: Oh, then that's it.
18 I do, too.
19 MR. HERNSTADT: Good.
20 MR. GOLD: To the fact that we
21 believe there is coaching going on. You don't
22 -- you don't think I don't I have a right to
23 mark the transcript where I want?
24 MR. HERNSTADT: No, you can
25 certainly mark it. Where I instruct him not to
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1
2 make -- to answer in a way to the extent that
3 he has any legal experience to make legal
4 conclusions? Mark away.
5 MR. GOLD: You've stipulated to
6 the fact that we're never doing that. We don't
7 want to. And you --
8 MR. HERNSTADT: I'm making the
9 objection and I'm entitled to do that.
10 MR. GOLD: I don't think so.
11 MR. HERNSTADT: Go ahead.
12 Bill.
13 MR. HART: Thank you,
14 Mr. Hernstadt.
15 MR. HERNSTADT: Certainly.
16 MR. GARBUS: Can you make the
17 room warmer? It's freezing.
18 MR. HART: I'm sorry. Now what
19 do you have, Mr. Garbus? I'm really doing my
20 best here.
21 Q. If a work's made available to a
22 website, one doesn't really have control over
23 what people do with it after they download it;
24 isn't that right?
25 MR. HERNSTADT: Objection to
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1
2 the form of the question. It's very vague. If
3 you can answer it.
4 THE WITNESS: That's generally
5 but I would not say entirely true.
6 Q. Where is the untruth in that
7 statement?
8 MR. HERNSTADT: Objection to
9 the form of the question. Go ahead.
10 THE WITNESS: If -- if, for
11 example, a work was posted encrypted on a
12 website, then people wishing to read it would
13 have to have a means of decrypting it. So
14 that's one way in which one could have control.
15 Q. How many drafts of your declaration
16 did you go through before you finalized it?
17 MR. HERNSTADT: Objection to
18 the form of the question.
19 THE WITNESS: I would guess
20 three.
21 Q. Were there any topics that were
22 discussed but not included or included but then
23 removed?
24 MR. HERNSTADT: Objection to
25 the form of the question. Go ahead.
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1
2 THE WITNESS: No.
3 Q. No?
4 A. No.
5 Q. Okay.
6 How long did it take to prepare the
7 declaration?
8 A. I don't recall exactly. I mean, a
9 few hours.
10 Q. A few hours.
11 A. Spread over a day or two. I don't
12 remember exactly.
13 Q. Got you.
14 Was it drafted by Mr. Hernstadt or
15 was it drafted by you?
16 MR. HERNSTADT: Objection to
17 the form of the question. Go ahead.
18 THE WITNESS: I think we
19 drafted it together.
20 Q. Sitting here today, can you tell
21 what was yours and what was Dr. Hernstadt's?
22 I'm sorry. Mr. Hernstadt's.
23 MR. HERNSTADT: I know you look
24 to me to give you sucker in your hour of need,
25 but I'm not a doctor.
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1
2 MR. HART: I'm not offended by
3 that statement.
4 THE WITNESS: As I look at it
5 now, I believe that all -- all the paragraphs
6 are either written by me or rewritten by me
7 after -- after maybe I received something from
8 Mr. Hernstadt.
9 Q. So in other words, Mr. Hernstadt
10 sent you a draft and you rewrote it?
11 MR. HERNSTADT: Object to the
12 form of the question. It misstates the
13 testimony. Go ahead.
14 THE WITNESS: Most of the draft
15 that Mr. Hernstadt originally sent me was
16 written by me.
17 Q. How?
18 A. Because I had filed a related
19 declaration in a previous case regarding --
20 regarding two cryptography.
21 Q. What case?
22 A. I filed a declaration in the case
23 of Bernstein versus U.S.
24 Q. Right.
25 A. And in the case of Younger versus
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1
2 Daily.
3 Q. Got you.
4 Is it your testimony that the
5 declarations from Bernstein and Younger served
6 as a basis for declaration Exhibit 1 in this
7 case?
8 A. That's right.
9 Q. Did you produce copies of those
10 declarations to us?
11 A. They are on my website. I didn't
12 bring any copies with me.
13 Q. Got you.
14 Do you have qualifications as a
15 cryptographer?
16 MR. HERNSTADT: Object to the
17 form of the question. It's vague.
18 THE WITNESS: I have a fair
19 understanding of cryptography --
20 Q. Okay.
21 A. -- from taking college courses in
22 which it was covered, from reading the
23 literature on cryptography, from an interest in
24 applications of cryptography to computer
25 security, but I would not say that my own
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1
2 research is specifically in the area of
3 cryptography.
4 Q. Got you.
5 What's your understanding of the
6 word "hacker"?
7 MR. HERNSTADT: Objection to
8 the question.
9 THE WITNESS: I would say that
10 I first started the word hacker circa 1980.
11 Q. Okay.
12 A. And my understanding of it at that
13 time was somebody who likes to play with
14 computer programs.
15 Q. That sounds pretty -- I'm sorry,
16 you weren't -- I don't want to interrupt you.
17 Please finish if --
18 A. And since that time, the -- the use
19 of the word as it typically appears in the
20 media seems to be more people who try and get
21 unauthorized access to computer systems.
22 Q. Do you believe that hacking is an
23 appropriate activity?
24 MR. HERNSTADT: Objection to
25 the form of the question. That is impossible
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1
2 to answer.
3 MR. HART: It may be for you,
4 but I'm asking the witness.
5 MR. HERNSTADT: What kind of
6 hacking are you talking about, are you talking
7 about --
8 MR. HART: Thanks for coaching
9 him.
10 MR. HERNSTADT: I'm not
11 coaching him, Bill. I'm asking you what your
12 question means.
13 MR. GOLD: Can we have you
14 marked that change, please?
15 MR. HERNSTADT: Do you
16 understand the question?
17 THE WITNESS: I gave you two
18 means of the word hacking, and it's not clear
19 to me which one you are asking about.
20 Q. You can answer with whatever
21 appropriate qualifications you feel necessary
22 to answer the question.
23 MR. HERNSTADT: It's a compound
24 question. I object to it.
25 THE WITNESS: I think think
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1
2 that playing with computer programs is
3 certainly acceptable activity.
4 Q. Okay.
5 A. I think that examining the
6 weaknesses in the security of computer systems
7 is acceptable.
8 Q. Okay.
9 A. And I have encouraged my students
10 to do it.
11 Q. You have encourage your students to
12 do it?
13 A. I have.
14 Q. Okay.
15 A. And that activity such as
16 electrically breaking into computer systems and
17 downloading copies of information or destroying
18 information is a crime.
19 Q. Okay.
20 A. So...
21 Q. Thank you.
22 Are there any ethical constraints,
23 to your understanding and world view, on the
24 dissemination of material or devices that
25 enable hacking?
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1
2 MR. HERNSTADT: Objection to
3 the form of the question. I'm going to
4 instruct the witness to answer with great
5 specificity as to which definition.
6 MR. HART: Of course.
7 THE WITNESS: I think that it's
8 reasonable and ethical to disseminate
9 information concerning the weaknesses of
10 security. I guess --
11 Q. Yeah. Again I'm asking for your
12 view in terms of ethics of it as a computer
13 professional.
14 A. Mm-hmm.
15 Q. Are there any constraints in terms
16 of the dangers or abuses that it poses in the
17 context of that dissemination?
18 MR. HERNSTADT: Object to the
19 form of the question. If you understand that
20 question, you can answer it.
21 THE WITNESS: I guess there are
22 dangers of some kind.
23 Q. And in your view, and I'm just
24 asking for your view, are the dangers
25 overridden by the need to share information?
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1
2 MR. HERNSTADT: Again,
3 objection to this whole line of questioning.
4 It's very vague. If you understand you can
5 answer it.
6 THE WITNESS: I can give
7 specific examples.
8 Q. Okay.
9 A. For example, in 1995 and '96 when
10 my students and colleagues found ways of
11 circumventing the security systems of web
12 browsers so that one could make a website that
13 would be able to steal or destroy information
14 from the users who are browsing that website,
15 we went public with an analysis of the
16 weaknesses in security, and in doing so we made
17 sure that it was brought to the attention of
18 the providers of the web browsing systems so
19 they could fix the security.
20 Q. Okay. Got you.
21 A. But as well as for public
22 discussion of the specific strengths and
23 weaknesses of these systems.
24 Q. Did you at any time create or
25 author any kind of software that would do
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1
2 precisely what you just described?
3 A. We did create such software.
4 Q. Did you make it available to the
5 public?
6 A. I don't recall. I don't believe
7 so.
8 Q. Sitting here today, do you believe
9 that it would be appropriate in those
10 circumstances to make such a device available
11 to the public?
12 A. I think it would be appropriate.
13 Q. Why?
14 A. People who wish to improve the
15 security of their systems can use such devices
16 to probe for weaknesses.
17 Q. But I'm talking about making it
18 available to the general public, not to the
19 people that own or control the security system.
20 A. People who wish to do research on
21 improving security systems may not be the one
22 who own those systems.
23 Q. Got you.
24 A. For example, our research now
25 involves improving the security of web browsing
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1
2 systems.
3 Q. Mm-hmm.
4 A. We became interested in this
5 research after we identified weaknesses in the
6 security of web browsing systems. We were not
7 the creators of those systems.
8 Q. Who is "we"?
9 A. Let's say Professor Felten and I.
10 Q. Okay.
11 A. And my students.
12 Q. Okay.
13 A. So the purpose of the public
14 discussion of the weaknesses of the security of
15 these systems is to, among other things,
16 encourage research in these areas, not only by
17 the original providers of those systems.
18 Q. Got you.
19 And to your mind is there a
20 difference between discussion of weaknesses of
21 system and the manufacturer of a utility that
22 takes advantage of a weakness in the system?
23 MR. HERNSTADT: Objection to
24 the form of the question. If you can answer
25 that.
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1
2 THE WITNESS: I found in my own
3 research, and not specifically limited to, you
4 know, security and devises to you know, exploit
5 the weaknesses of systems, but in computer
6 science in general that a discussion of some
7 aspect of computer science is often much more
8 effective if it's accompanied by exchange of
9 computer programs relevant to that discussion.
10 Q. And how does that computer exchange
11 normally take place?
12 A. Typically by people posting their
13 computer programs on their websites along with
14 articles discussing how they work or as an
15 accompaniment to, let's say, an article
16 published in a journal about how the program
17 might work.
18 Q. And we are talking about what,
19 source code?
20 A. Source code and object code.
21 Q. Okay.
22 And in your view, that's
23 appropriate to do, that is, to make an
24 executable utility available generally on a
25 website even if it has the potential for abuse
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1
2 by others? That's your view?
3 MR. HERNSTADT: Objection to
4 the form of the question.
5 THE WITNESS: If the source
6 code or object code has some useful purpose in
7 the scholarly discussion or has some useful
8 purpose as a tool, then it's appropriate to
9 post it.
10 Q. Despite the potential for abuse?
11 A. Despite the potential for abuse.
12 Q. So if you and your students created
13 a utility that would defeat the security codes
14 for ATM machines at Citibank and believed that
15 that was of scholarly, academic or
16 cryptological interest, you are dealing me that
17 in your view it would be appropriate to post
18 that utility to the internet in a widespread
19 fashion even though it would be available to
20 pool to basically invade Citibank and take the
21 money?
22 MR. HERNSTADT: Objection to
23 the form of the question. It's an incomplete
24 hypothetical. If you can answer it.
25 THE WITNESS: To give a more
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1
2 concrete example --
3 Q. What was wrong with my example?
4 A. Let me give a different example and
5 then relate it to your example.
6 Q. I'd like you to answer my example.
7 That's the question on the table.
8 A. Mm-hmm.
9 Q. Appropriate or appropriate?
10 MR. HERNSTADT: I -- If you can
11 answer that question --
12 MR. HART: Ed, we understand.
13 We will stipulate that the witness will only
14 answer the questions that he can answer, okay?
15 MR. HERNSTADT: Now, look --
16 MR. HART: No speeches, please.
17 Honestly. I'm going to throw him out of the
18 room because you're going to coach him again.
19 MR. HERNSTADT: Bill, e