14 June 2000. Thanks to Anonymous.
See also Part 2 of the deposition: http://cryptome.org/mpaa-v-2600-kj2.htm
See related files:
http://www.eff.org/pub/Intellectual_property/DVD/
http://cyber.law.harvard.edu/openlaw/dvd/
http://www.2600.com
http://jya.com/cryptout.htm#DVD-DeCSS
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UNITED STATES DISTRICT COURT
3
SOUTHERN DISTRICT OF NEW YORK
4
5 UNIVERSAL CITY STUDIOS, INC., PARAMOUNT )
PICTURES CORPORATION, METRO-GOLDWYN-MAYER)
6 STUDIOS, INC., TRISTAR PICTURES, INC., )
COLUMBIA PICTURES INDUSTRIES, INC., )
7 TIME WARNER ENTERTAINMENT CO., L.P., )
DISNEY ENTERPRISES, INC., and TWENTIETH )
8 CENTURY FOX FILM CORPORATION, )
) Civ. No.
9 Plaintiffs, ) 0277 (LAK)
)
10 vs. )
)
11 ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" )
and 2600 ENTERPRISES, INC., )
12 )
Defendants. )
13 -----------------------------------------)
14 May 17, 2000
15 9:45 a.m.
16
17 DEPOSITION of KENNETH A. JACOBSEN,
18 held at the offices of Frankfurt Garbus
19 Klein & Selz, P.C., 488 Madison Avenue, New
20 York, New York, pursuant to Order and
21 Notice, before ELIZABETH SANTAMARIA, a
22 Notary Public of the State of New York.
23
24 Reported by:
ELIZABETH SANTAMARIA
25
INTERIM COURT REPORTING
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2 A p p e a r a n c e s :
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4 PROSKAUER ROSE LLP
5 Attorneys for Plaintiffs
6 1585 Broadway
7 New York, New York 10036-8299
8 BY: SCOTT P. COOPER, ESQ.
9
10 FRANKFURT GARBUS KLEIN & SELZ, P.C.
11 Attorneys for Defendants
12 488 Madison Avenue
13 New York, New York 10022
14 BY: MARTIN GARBUS, ESQ.
15 - and -
16 EDWARD HERNSTADT, ESQ.
17
ALSO PRESENT:
18
Motion Picture Association
19 Mark D. Litvack, Esq.
In-house Counsel
20
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4 IT IS HEREBY STIPULATED AND AGREED by
5 and between the attorneys for the
6 respective parties herein that filing and
7 sealing be and the same are hereby waived.
8 IT IS FURTHER STIPULATED AND AGREED
9 that all objections, except as to the form
10 of the question, shall be reserved to the
11 time of the trial.
12 IT IS FURTHER STIPULATED AND AGREED
13 that the within deposition may be sworn to
14 and signed before any officer authorized to
15 administer an oath, with the same force and
16 effect as if signed and sworn to before the
17 Court.
18 --oOo--
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3 K E N N E T H A. J A C O B S E N,
4 called as a witness, having been duly sworn
5 by the Notary Public, was examined and
6 testified as follows:
7 EXAMINATION BY
8 MR. GARBUS:
9
10 Confidential
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14
15 Q. Mr. Jacobsen, prior to coming here
16 today, did you read the deposition of Mr. Schumann?
17 A. I did not.
18 Q. Were you told about the deposition
19 of Mr. Schumann?
20 MR. COOPER: I am going to object
21 to the extent that the only conversations
22 Mr. Jacobsen had with respect to the
23 deposition of Mr. Schumann were with his
24 attorneys.
25 MR. GARBUS: Please mark this as
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2 Exhibit 10.
3 (Defendants' Exhibit 10, Declaration
4 of Robin Gross, marked for identification,
5 as of this date.)
6 BY MR. GARBUS:
7 Q. Have you read the affidavits
8 submitted by either side in this case thus far?
9 A. I have not.
10 Q. The first question we asked of
11 Mr. Schumann dealt with -- do you know who Gerald
12 Gockner is?
13 A. I do not.
14 Q. Who is the deputy counsel for the
15 MPAA?
16 A. Greg Geckner.
17 Q. Do you know who he is?
18 A. Yes, I do.
19 Q. Do you know that some weeks ago he
20 said that so far as he knew there was no piracy
21 that he knew of with we respect to the use of
22 deCSS?
23 MR. COOPER: Is that a quote or
24 are you paraphrasing?
25 MR. GARBUS: I am quoting from the
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2 Robin Gross affidavit at Paragraph 5,
3 Page 2.
4 Q. Do you know whether the following
5 statement that Mr. Geckner allegedly made is true
6 or not?
7 MR. COOPER: This is which
8 paragraph now? I will put it before the
9 witness.
10 MR. GARBUS: Paragraph 5, sentence
11 2. Let's mark this as the next document.
12 MR. COOPER: Sir, are you asking
13 whether Ms. Kaplan's recitation is a
14 correct quote of what Mr. Geckner said or
15 are you asking whether this witness knows
16 whether what is attributed to Mr. Geckner
17 was true, in fact?
18 MR. GARBUS: The latter.
19 A. If I understand, you are asking me
20 whether or not -- one, I don't know that
21 Mr. Geckner ever made such a statement. Okay?
22 Q. Let me show you Page 10 of the
23 deposition of Mr. Schumann, Line 15 to Line 18.
24 Can you tell me whether or not, to
25 the best of your recollection, if you know, whether
INTERIM COURT REPORTING
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2 or not there has been any piracy resulting from
3 deCSS.
4 MR. COOPER: Are you asking the
5 witness to make reference to
6 Mr. Schumann's testimony in response to
7 your question or are you asking whether
8 the witness has such knowledge
9 independent of any reference to this
10 testimony?
11 MR. GARBUS: The latter.
12 MR. COOPER: Do you understand the
13 question?
14 THE WITNESS: No.
15 Q. Do you have any knowledge of any
16 piracy specifically relating to deCSS?
17 A. This may be a definitional problem,
18 but I would view piracy as the actual distribution
19 of deCSS itself.
20 Q. Right.
21 A. So I would consider that to be
22 piracy.
23 Q. Do you know whether any DVDs were
24 made as a result of the distribution of deCSS?
25 A. If you are asking me if I know of
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2 any specific instances where someone has used the
3 deCSS utility to hack a DVD and then make an
4 unauthorized copy, the answer is no.
5 Q. Was there any attempt made by the
6 MPAA to determine whether or not anybody had hacked
7 a DVD using deCSS to make an unscrambled DVD?
8 MR. COOPER: Let me just say that
9 with respect to the nature of this
10 questioning I am going to designate the
11 witness' testimony and the transcript
12 confidential.
13 If we get into an area in which
14 I believe it is appropriate to
15 dedesignate the transcript, then I will
16 so state. Until then, the transcript
17 should be designated confidential
18 pursuant to the protective order in
19 place in this case.
20 MR. GARBUS: Do you want to state
21 the basis for that?
22 MR. COOPER: Not particularly,
23 unless you believe that it is required
24 under the order.
25 MR. GARBUS: I think you are
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2 required to do that.
3 MR. COOPER: I disagree with you.
4 Just so you and I understand each other,
5 the reasoning is that I believe that the
6 MPAA's anti-piracy activities are not the
7 business of the public while those
8 activities are ongoing and that's the
9 reason for my designation.
10 Q. Has the MPAA filed any specific suit
11 against any one individual who has actually used
12 deCSS to descramble a DVD?
13 A. I don't --
14 Q. Other than the California suit and
15 this suit where no particular individual is named
16 as having actually done the copying.
17 MR. COOPER: Would you read back
18 the question, please.
19 (Record read.)
20 MR. COOPER: Objection as to form.
21 I am not aware of any such California
22 action.
23 Q. Do you know anything about a
24 California action?
25 A. There is not a California action I
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2 am aware of that we filed.
3 Q. Do you know about the DVD action?
4 A. Yes.
5 Q. Can you tell me whether or not the
6 MPAA has determined the name of any one person who
7 has copied a DVD using deCSS?
8 A. I think it would be fair to say that
9 I would be -- that I have no conclusive evidence
10 that any one person has done that.
11 Q. Now, has the MPAA been investigating
12 that for a period of time, that particular issue?
13 A. We have been -- I mean we have
14 looked at sites on the internet which deal with
15 deCSS. Looking at those sites has not resulted in
16 obtaining any evidence which I would feel
17 comfortable in saying conclusively proves anyone
18 has used it to copy a DVD.
19 There are individuals who are up on
20 the internet who claim that that is what it should
21 be used for and I have read at least one newspaper
22 article where a reporter claimed that he had, in
23 fact, used the utility to hack a DVD.
24 Q. Have you attempted to contact any of
25 the people whose names you have seen on the
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2 internet who say that you can use deCSS to
3 descramble DVDs?
4 MR. COOPER: Assumes facts not in
5 evidence.
6 A. If they were posting or linking, we
7 would be sending them a C & D letter or sending the
8 ISP, Internet Service Provider, a cease and desist
9 letter. And if we were able to identify who the
10 party was that was actually up on the internet, we
11 would also send a copy of the letter to them.
12 Q. Other than cease and desist letters,
13 did you do anything further?
14 A. I don't believe we have.
15 Q. Did you get any responses from any
16 of the cease and desist letters?
17 A. Yes, we have received responses.
18 Q. Written responses?
19 A. Yes.
20 Q. And e-mail responses?
21 A. Let me take that back. It may have
22 been e-mail responses. I can't recall whether they
23 came in in written form or in e-mail form.
24 RQ MR. GARBUS: I would ask you to
25 produce those, Mr. Cooper.
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2 MR. COOPER: I believe we have
3 already produced a great many and are
4 continuing to produce anymore that we
5 find.
6 MR. GARBUS: Thus far the answer
7 is you produced none.
8 MR. COOPER: I disagree with that,
9 unless there is some misunderstanding
10 about what the question elicited. Are
11 you saying that you have not received any
12 of the cease and desist letters?
13 MR. GARBUS: That wasn't the
14 question.
15 MR. COOPER: Then maybe there is a
16 misunderstanding.
17 Q. Have you received any responses --
18 A. Yes.
19 MR. COOPER: Wait.
20 Q. -- to the cease and desist letters?
21 MR. COOPER: Let's get a whole
22 question out.
23 MR. GARBUS: Mr. Cooper, your
24 witness understood.
25 MR. COOPER: I am not satisfied
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2 that he did. What responses are we
3 talking about? Are we talking about
4 specifically C & D letters to people who
5 came to have used deCSS to decrypt a DVD
6 and make a copy from it?
7 A. No.
8 MR. GARBUS: No. He said he sent
9 out cease and desist letters. I have
10 asked him with respect to those cease and
11 desist letters did he receive any
12 responses.
13 Q. You have said "yes"? Is that
14 correct?
15 A. That's correct.
16 RQ MR. GARBUS: I now ask you to
17 produce those responses and I tell you that
18 we have not gotten any responses.
19 MR. COOPER: I have looked at a
20 number of documents that I understand
21 have been produced to you which
22 constitute responses. It may be a
23 misunderstanding on your part about what
24 they consist of, but my understanding is
25 that many have been provided. If there
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2 are more, it is the intent to provide
3 those, as well. But what I have looked
4 at would indicate that you are in error.
5 BY MR. GARBUS:
6 Q. Did you determine whether any of the
7 people you had sent the cease and desist letters to
8 had actually copied a DVD using deCSS?
9 A. I have no actual knowledge that
10 anybody has actually copied a DVD using deCSS. As
11 I said, I have read at least one newspaper article
12 where a reporter claimed to do so.
13 Q. Tell me about that article.
14 A. I just generally remember that the
15 reporter had utilized the utility to open the DVD,
16 see how it worked.
17 Q. Do you recall what he said about his
18 success or lack of success in using the utility?
19 A. My general recollection is that it
20 worked, but it was difficult.
21 Q. Do you recall how long it took him
22 to do it?
23 A. I don't recall specifically, but I
24 recall it was lengthy.
25 Q. Do you recall him saying whether or
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2 not he lost the audio when he did it through a
3 DivX?
4 A. I don't.
5 Q. Do you recall him indicating whether
6 or not deCSS caused his computer to crash?
7 A. I don't.
8 Q. Do you know of anybody who has
9 applied deCSS where the computer has not crashed?
10 MR. COOPER: Assumes facts not in
11 evidence. Answer, if you can.
12 A. I don't think I personally know
13 anyone that has used deCSS.
14 Q. At the MPAA, did you ask anybody or
15 did the MPAA run any tests about the use of deCSS?
16 A. Not that I am aware of.
17 Q. Did the MPAA ever hire anybody to
18 perform any tests to see the efficacy of deCSS in
19 descrambling DVDs?
20 A. Not that I am aware of.
21 Q. To your knowledge, did any of the
22 movie studios --
23 Let's just make one thing clear so I
24 think Mr. Cooper and I can agree. Pending a
25 disqualification motion, I am not permitted to ask
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2 about Time Warner. When I use "movie studios" or
3 "plaintiffs," I am excluding Time Warner from that
4 definition. Can we have that agreement?
5 MR. COOPER: We do have that
6 agreement, yes.
7 Q. So anything you know about Time
8 Warner, don't tell me. In any way that Time Warner
9 is different from any question or answer, don't
10 tell me.
11 We have that agreement?
12 MR. COOPER: We do have that
13 agreement.
14 MR. GARBUS: Off the record.
15 (Question read.)
16 Q. -- test deCSS to see whether or not
17 it can be used to descramble a DVD?
18 A. I don't know.
19 Q. Now, you know what the broadband is?
20 A. Generally.
21 Q. Tell me what it is.
22 A. Broadband is a large volume capacity
23 on the internet. It is the ability to transmit
24 huge amounts of data in a very fast period of time.
25 Q. How long has the broadband been with
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2 us?
3 MR. COOPER: Lacks foundation.
4 This witness, for the record, is not
5 designated to testify about matters of
6 general technology.
7 A. I don't know.
8 Q. To your knowledge, has a descrambled
9 DVD ever been shown on the internet? One that has
10 been descrambled through deCSS.
11 A. I don't know of -- I have no
12 specific knowledge of that occurring.
13 Q. To your knowledge, has anyone ever
14 tried to transmit a descrambled DVD, descrambled
15 through deCSS on the broadband?
16 MR. COOPER: Assumes facts not in
17 evidence.
18 A. I have no information that that has
19 ever occurred.
20 Q. To your knowledge, has anyone ever
21 tried to send a descrambled DVD, one that has been
22 descrambled through deCSS, on a T1 line?
23 A. I have no knowledge.
24 MR. COOPER: Same objection.
25 Q. Do you know what a T1 line is?
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2 A. Generally.
3 Q. What is it?
4 A. It is a large capacity pipe which
5 would allow you to send a lot of data in a quick
6 period of time.
7 Q. Would your answer be the same with
8 respect to a T3 line?
9 MR. COOPER: Same objection.
10 A. Yes.
11 Q. With respect to a DSL line, do you
12 know if anyone has ever used a DSL line to send a
13 descrambled DVD, descrambled through deCSS?
14 MR. COOPER: I don't know how
15 anybody could know the method of
16 transport that a particular user of the
17 internet uses. This witness isn't
18 designated to testify as to such matters,
19 but I will let him answer if he knows.
20 A. I don't know of any such instance.
21 Q. With respect to what Mr. Cooper
22 said, namely that you can't tell the line of
23 communication over which a descrambled DVD might
24 pass, is there anyone at the MPAA who has tried to
25 monitor that? Namely, whether descrambled DVDs,
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2 descrambled through deCSS, are going out over any
3 of these DSL, T1, T3, or broadband?
4 A. I'm sorry. I lost the first part of
5 the question.
6 MR. GARBUS: Read back the
7 question.
8 (Record read.)
9 A. If I understand the question, I
10 don't know if there is anybody at MPAA or MPA who
11 could determine what the source of transmission
12 was.
13 Q. Is there anyone at any of the movie
14 studios or plaintiffs who can?
15 A. I don't know that answer.
16 Q. Do you know if they have?
17 A. I don't.
18 Q. Do you know if they have tried to?
19 A. I don't.
20 Q. Do you know if anyone at the movie
21 studios has ever seen a descrambled DVD,
22 descrambled through deCSS, on the internet?
23 MR. COOPER: I caution the witness
24 to distinguish, in responding to this,
25 between privileged and unprivileged
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2 sources of information, and not to
3 provide a response with respect to
4 privileged sources.
5 A. I don't.
6 Q. With respect to seeing a DVD
7 descrambled through deCSS on the internet, do you
8 know whether anyone at the movie studios or the
9 MPAA has tried to send such a DVD over the
10 internet?
11 A. I do not.
12 Q. Do you know whether anyone at the
13 movie studios has ever learned the name of one
14 single person who has attempted to copy a DVD
15 through the descrambling by deCSS?
16 A. I don't know.
17 Q. Do you know if the movie companies
18 have done any investigation into that question?
19 A. Independently of MPAA?
20 Q. Yes.
21 A. I'm not sure I understand the
22 question.
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23 Q. Putting aside any conversations
24 where you were involved with your lawyers or the
25 MPAA lawyers or the lawyers for any of the
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2 plaintiffs in this case, did you have any
3 conversations with any people at any of those
4 studios who had ever known of one single instance
5 of DVDs being descrambled through deCSS and a copy
6 thereafter being made?
7 A. No.
8 Q. Have you asked these plaintiffs that
9 question? Namely, whether or not they knew of any
10 single instance of a DVD being descrambled to make
11 a copy, with the exception of any conversations
12 that any lawyers were in any way involved in?
13 A. If I understand the question, you
14 are asking me if I asked it outside of the context
15 of a possible privilege? No.
16 Q. Have you ever seen any documents
17 from any of the plaintiffs that indicate whether or
18 not they know of one single DVD being descrambled
19 by deCSS?
20 A. No.
21 Q. Do you know whether they have such
22 documents?
23 A. No.
24 Q. Do you know if they have ever made
25 their own investigation into whether or not deCSS
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2 was ever used for descrambling a DVD?
3 A. No.
4 Q. After you saw the Toronto article,
5 was there any attempt made by you or anyone acting
6 on your behalf to contact the Toronto reporter?
7 MR. COOPER: Assumes facts not in
8 evidence. I don't remember the witness
9 identifying the Toronto article.
10 MR. GARBUS: He did.
11 MR. COOPER: As such, I think the
12 witness testified that there was an
13 article.
14 Q. Do you know where the article was?
15 A. I read it off the internet, but I
16 don't recall which paper it was.
17 Q. Did you at any time try to contact
18 the author of that article?
19 A. I did not.
20 Q. Do you know anybody at any of the
21 plaintiffs or anybody acting on your behalf that
22 did?
23 A. No.
24 Q. Did you try to determine whether or
25 not after that article was printed anybody reading
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2 that article sought to descramble DVDs through
3 using deCSS?
4 A. I do not, no.
5 Q. Can you just tell me approximately,
6 in round numbers, the dollar value of the resources
7 that the MPAA has used to determine whether or not
8 deCSS is an effective descrambling tool for DVDs?
9 A. I'm not aware of any money we have
10 spent to test whether or not it effectively
11 descrambles.
12 Q. Have you -- by "you" I mean you or
13 the MPAA -- produced or prepared any documents
14 concerning the amount of the use of deCSS over any
15 communication system, whether it be T1, T3, DSL, or
16 broadband at any time in the future?
17 MR. COOPER: Read back the
18 question, please.
19 (Record read.)
20 MR. COOPER: I object as to the
21 form of the question. Unintelligible and
22 ambiguous.
23 Q. Do you understand it?
24 A. No.
25 Q. Have there been any projections made
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2 orally or in writing by you or anyone at the MPAA
3 for the potential use of deCSS to make copies of
4 DVDs in the future?
5 MR. COOPER: That's a "yes" or
6 "no" question.
7 A. Not that I am aware of. No.
8 Q. Have there been any studies made to
9 determine the potential use on the broadband of
10 individuals attempting to descramble DVDs through
11 the use of deCSS?
12 A. I'm sorry, but I didn't understand
13 the question.
14 MR. GARBUS: Read the question
15 back.
16 (Record read.)
17 A. Studies by who? I'm sorry.
18 Q. You.
19 A. Regarding the attempted use?
20 Q. For example, is there any document
21 which would say, we expect that over the broadband
22 in the next ten years or the next one year, that
23 deCSS will be transmitted and we may see X number
24 of DVDs unscrambled in that way?
25 A. No.
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2 Q. In other words, let me just make it
3 clear what I am talking about. I will give you the
4 general scope.
5 I am now trying to look towards the
6 future and I am trying to determine whether or not
7 you, the MPAA, the movie studios, have any
8 documents or any oral conversations you can tell me
9 about, about the potential impact of actual copies
10 of DVDs that are unscrambled through deCSS. Are
11 there such studies?
12 A. Not that I am aware of.
13 MR. COOPER: Your question
14 included oral discussions and then the
15 clarification at the end, studies. You
16 are looking at studies?
17 Q. Let's look at three things. Oral
18 conversations where lawyers are involved, oral
19 conversations where no lawyers are involved, and
20 then any studies or reports concerning that subject
21 matter.
22 A. Okay.
23 Q. Are there any studies that you have
24 seen done by the MPAA or any of the other
25 plaintiffs concerning the future use, potential use
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2 of deCSS to copy DVDs?
3 A. No.
4 Q. I ask you the same thing with
5 respect to reports.
6 A. No.
7 Q. I ask you the same thing with
8 respect to oral conversations that take place
9 without lawyers being around or involved.
10 A. No.
11 Q. Do you know what a DVD burner is?
12 A. I have a general understanding.
13 Q. What is your general understanding?
14 A. It would be a device which would
15 allow you to copy a DVD from your hard drive.
16 Q. Have there been any studies made by
17 you -- let's save some time.
18 When I say "you" now, I am talking
19 about you, the MPAA, or the movie, that you know
20 of. Every time I use the word "you," then, in the
21 next few questions, it implies that entire
22 universe.
23 MR. GARBUS: Read back my question
24 so far.
25 (Record read.)
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2 Q. -- as to the potential future use of
3 DVD burners to copy DVDs?
4 A. The fact that a DVD burner may exist
5 or will exist has been the subject of discussion.
6 Q. Do you know if it exists today?
7 A. I believe that it has been
8 developed, yes.
9 Q. Do you know what they cost?
10 A. I don't know precisely, but my
11 understanding is they are still quite expensive.
12 Q. Between $5,000 and $10,000?
13 A. Possibly.
14 Q. Have you made any studies or reports
15 or had any oral conversations, excluding oral
16 conversations where lawyers are present, discussing
17 the potential use of DVD burners to show copies of
18 DVDs?
19 A. I don't understand the question,
20 because I don't understand a burner that would be
21 something that would show a copy of a DVD.
22 Q. What does a burner do?
23 A. Makes a copy of a DVD.
24 Q. Do you have any studies -- by "you"
25 I mean all the plaintiffs -- about the potential
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2 copies that can be made in the future through the
3 use of DVD burners?
4 A. I don't know of any specific written
5 reports or studies.
6 Q. Do you have any knowledge of any
7 individual consumers using DVD burners to make a
8 single copy for themselves of a DVD?
9 A. No.
10 Q. Have you or the MPAA retained any
11 outside experts on the deCSS question, other than
12 Robert Schumann?
13 A. Can I --
14 MR. COOPER: Can you answer that
15 question from general knowledge? That
16 is, other than from what you have
17 discussed with attorneys.
18 THE WITNESS: I think I probably
19 cannot.
20 BY MR. GARBUS:
21 Q. So you can't tell me, as you sit
22 here today, whether or not the MPAA has retained
23 any other experts with respect to the deCSS area?
24 MR. COOPER: From nonprivileged
25 sources?
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1 Jacobsen
2 MR. GARBUS: From nonprivileged
3 sources.
4 Q. Is that right?
5 A. That's correct.
6 Q. Have you seen any exchange of
7 correspondence, excluding privileged documents, if
8 in fact a privilege applies, between the MPAA and
9 any of the studios concerning the use of deCSS?
10 A. I'm sorry. Could you repeat the
11 first part of the question?
12 MR. GARBUS: Read it back.
13 (Record read.)
14 MR. COOPER: Read it back.
15 (Record read.)
16 A. Excluding privileged documents, no.
17 Q. When you say "privileged documents,"
18 are you referring to documents exchanged directly
19 by the MPAA with lawyers and documents exchanged
20 between the movie studios and lawyers or you are
21 also referring to documents exchanged between the
22 movie studios and the MPAA without lawyers?
23 MR. COOPER: Do you understand the
24 question?
25 THE WITNESS: Yes, I understand
INTERIM COURT REPORTING
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1 Jacobsen
2 the question.
3 A. I am referring to documents -- the
4 two former that you set up. Documents between
5 lawyers and the studios and the studios and the
6 lawyers.
7 Q. Have you seen any documents between
8 the MPAA and the studios, nonlawyer documents, that
9 refer in any way to deCSS?
10 A. Not that I can recall.
11 MR. GARBUS: Let's mark this as
12 the next exhibit.
13 (Defendants' Exhibit 11, three-page
14 letter, dated May 15, 2000, marked for
15 identification, as of this date.)
16 RQ MR. GARBUS: Mr. Cooper, I show you
17 Defendant's Exhibit 11, which is addressed
18 to Carla Miller, copied to Leon Gold. We
19 had a conversation Monday about the
20 production of documents for today and he
21 asked that we send him a letter and I asked
22 whether or not you have any of those
23 documents here with you today.
24 MR. COOPER: My understanding of
25 the conversation that led up to this
INTERIM COURT REPORTING
36
1 Jacobsen
2 letter is a little different than what
3 you just described. My understanding was
4 that Mr. Gold made a general suggestion
5 to you, that you give an itemization of
6 documents you were seeking and offered to
7 respond to that itemization. I didn't
8 understand the conversation to be
9 directly focused on this witness'
10 appearance here today or that the
11 documents described would be provided
12 today.
13 I note, although this is the
14 first time I have seen the letter
15 personally, that most of them focus on
16 Mr. Schumann's testimony as opposed to
17 Mr. Jacobsen's. I do not have any
18 additional documents to produce in
19 response to this letter as we sit here.
20 Now that you have drawn it to my
21 attention, I will investigate where we
22 stand in response to it and I will let
23 you know.
24 MR. GARBUS: Thank you very much.
25 BY MR. GARBUS:
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1 Jacobsen
2 Q. Were you involved in any way in the
3 preparation of the cease and desist letters?
4 A. In my position, I have general
5 oversight authority for the fact that we have a
6 program that would send cease and desist letters.
7 But no, the actual construction of the letter
8 itself would have been done by our attorneys.
9 Q. Proskauer?
10 A. No. Our in-house attorneys.
11 Mr. Litvack would have overseen the project.
12 Q. You are the senior vice president
13 and director for worldwide anti-piracy; is that
14 right?
15 A. That is correct.
16 Q. Are you a lawyer?
17 A. Yes, I am.
18 Q. How long have you been practicing?
19 MR. COOPER: Assumes facts not in
20 evidence. Answer it.
21 A. I actually have never practiced.
22 MR. GARBUS: Off the record.
23 (Discussion off the record.)
24 BY MR. GARBUS:
25 Q. How long have you been at the MPAA?
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1 Jacobsen
2 A. I have been employed by the MPAA
3 since January 2nd of 1995.
4 Q. Can you tell me generally what your
5 duties include?
6 MR. COOPER: Today or from the
7 beginning?
8 MR. GARBUS: Today.
9 A. Today I have oversight
10 responsibility for our entire worldwide anti-piracy
11 program. We are active in approximately 67
12 countries and I have responsibility for overseeing
13 how that program runs, the strategies that are
14 developed, the budget that is put together and
15 submitted to the members on an annual basis for
16 funding, correspondence about the program to the
17 member companies and their representatives, hiring
18 and firing. All of the management decisions that
19 are made regarding that program.
20
21
22 Confidential
23
24
25
INTERIM COURT REPORTING
39
1
2
3
4 Confidential
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
INTERIM COURT REPORTING
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1 Confidential
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
INTERIM COURT REPORTING
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1 Confidential
2
3
4
5
6
7
8
9
10
11
12 Q. How long have you had this position?
13 A. I was promoted the 1st of April of
14 this year and I occupied the position sort of co
15 with my predecessor until he left April 21st, and
16 then I took over.
17 Q. Prior to that what was your
18 position?
19 A. Prior to that, for two years I was
20 the vice president and director of the U.S.
21 anti-piracy program.
22 Q. In all that time, have any one of
23 these people who were your employees ever told you
24 that they had ever seen a copy of a DVD descrambled
25 by deCSS?
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1 Jacobsen
2 MR. COOPER: Exclude from that
3 those people who operate as attorneys, as
4 you have described them.
5 A. Not conclusively.
6 Q. When you say "not conclusively," did
7 any one of them ever tell you that they had learned
8 the name of one single person who had ever copied a
9 DVD through the use of the descrambling --
10 descrambling through deCSS?
11 MR. COOPER: Asked and answered.
12 MR. GARBUS: Different question.
13 A. Not conclusively, no.
14 Q. When you say "not conclusively," did
15 you ask your office -- and by "your office" I mean
16 either the office you held before April 1st or the
17 people under your direction after April 1st.
18 -- whether they could find a single
19 copy of a DVD that had been descrambled through
20 deCSS or the name of a single individual who had
21 used deCSS who descrambled a DVD?
22 MR. COOPER: Could I just, just
23 for simplicity so I don't interrupt your
24 questions and the witness' answer, can we
25 have a running understanding that you
INTERIM COURT REPORTING
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1 Jacobsen
2 mean to exclude the conversations with
3 those people the witness has identified
4 as operating as attorneys?
5 MR. GARBUS: Absolutely.
6 A. I have never asked the question in
7 that fashion.
8 Q. What is the question that you have
9 asked?
10 A. I have asked people that are in our
11 employment structure whether or not they can
12 identify the source of unauthorized DVDs that we
13 have located.
14 Q. Has anyone ever told you that deCSS
15 was the source?
16 A. Conclusively? No.
17 Q. Have you tried to make a conclusive
18 determination as to whether or not any of these
19 copies of DVDs came from the use of deCSS?
20 A. In every instance where we analyze
21 for source we would try to make a determination
22 about what the original source of the product would
23 be, deCSS would be one of those possibilities.
24 Q. And you never were able to determine
25 that one single one ever came through deCSS?
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1 Jacobsen
2 A. To be perfectly honest, I am not
3 even certain that that can be done. We don't
4 know -- I don't know whether or not deCSS leaves an
5 identifiable mark when it is used to descramble a
6 DVD. But we are, in fact, looking at some DVDs and
7 trying to make a determination about what the
8 source is.
9 Q. Just going back, at the present
10 time, you can't tell me that you have seen one copy
11 of a DVD that has definitely been made as a result
12 of the deCSS descrambling?
13 A. That's correct.
14 Q. At the present time, you can't tell
15 me that you know the name of one person who has
16 descrambled a DVD through deCSS to make a copy?
17 A. I know people have claimed that. I
18 cannot conclusively tell you that what they are
19 claiming is accurate.
20 Q. Other than the claims and other than
21 the article in the newspaper, do you know the name
22 of one person who you have determined has made such
23 a copy?
24 A. No.
25 Q. When you say "people claim," you are
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1 Jacobsen
2 talking about people who claim this in internet
3 postings?
4 A. That is correct.
5 Q. Did the internet postings frequently
6 give you the name of the poster who posts that
7 information?
8 MR. COOPER: Those particular
9 postings?
10 MR. GARBUS: Yes.
11 A. It would depend.
12 Q. Sometimes you know personally the
13 site from which it comes?
14 A. That would be correct.
15 Q. Have you ever gone to the site or
16 tried to further investigate into those people who
17 claim, according to you, that they have made DVDs
18 through the use of deCSS descramblers?
19 A. I think one of the original
20 defendants in this case claimed that on his
21 website.
22 Q. Claimed that he had made it?
23 A. Yes. Or that copies were being
24 made.
25 Q. He claimed that copies were being
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1 Jacobsen
2 made. Did you ever determine whether that was true
3 or not?
4 A. No.
5 Q. In other words, did you ever make a
6 distinction or did you ever determine the
7 difference between rhetoric, bragging, polemics,
8 and the actual making of a copy of a DVD through
9 the use of deCSS?
10 MR. COOPER: I object to the
11 characterization and the form of the
12 question. I'm not sure it is a fair
13 characterization of what the witness has
14 referred to, to refer to it as rhetoric,
15 polemics, and so on.
16 If the question is has the
17 witness distinguished or attempted to
18 distinguish between names and copying,
19 in fact, I think you can answer that
20 question.
21 Q. Go ahead.
22 A. I'm sorry. Was the question have I
23 attempted to distinguish or have I been able to?
24 MR. GARBUS: We will take it with
25 Mr. Cooper's modification.
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1 Jacobsen
2 A. Which is attempted?
3 MR. GARBUS: Read back the whole
4 conversation.
5 (Record read.)
6 A. I have been unable to determine
7 whether or not any copies were actually made or
8 people were just claiming to do it without having
9 done so.
10 Q. Did anyone on any of these postings
11 give you the specific name of a film or DVD that
12 they had succeeded in descrambling through the use
13 of deCSS?
14 A. I don't recall.
15 Q. Would your recollection be that they
16 spoke in general terms and said, "I've done it" or
17 "I will do it" or "You can do it," rather than
18 saying I have done it with respect to a particular
19 film, on a particular date, in a particular place?
20 MR. GARBUS: Off the record.
21 (Discussion off the record.)
22 A. I don't recall.
23 Q. Do you recall the name of one single
24 title that anyone has ever claimed they have ever
25 been able to copy through the use of deCSS?
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1 Jacobsen
2 MR. COOPER: I'm not sure how to
3 distinguish that from your prior
4 question.
5 A. No.
6 Q. With respect to the people who have
7 used what I have called polemics, have you
8 determined through investigation the names of these
9 people and where they live?
10 A. If you are asking me the people that
11 have shown up on the web who have made these
12 claims, the answer is we have not determined who
13 they are or where they live, to my knowledge.
14 Q. Have you attempted to do so?
15 MR. COOPER: You are
16 distinguishing the current defendant
17 which the witness has already said they
18 identified and who he believed to have
19 made some such claims?
20 MR. GARBUS: Emmanuel Goldstein?
21 MR. COOPER: Eric Corley.
22 MR. GARBUS: Off the record.
23 (Discussion off the record.)
24 MR. GARBUS: Where are we?
25 (Record read.)
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1 Jacobsen
2 MR. COOPER: Exclude conversations
3 with counsel as a source for the answer
4 to that last question.
5 A. If they were the target of a C & D
6 letter or a cease and desist letter, we would have
7 done some preliminary investigation to see if we
8 can determine an address where we can send a copy
9 of the letter to.
10 MR. COOPER: Is this an
11 appropriate time to take a brief break?
12 MR. GARBUS: If you would like.
13 (Recess taken.)
14 MR. GARBUS: Please mark this as
15 an exhibit.
16 (Defendants' Exhibit 12, four-page
17 document titled "1st Story of Level 1
18 printed in Full Format, Copyright 2000
19 Toronto Star Newspapers, Ltd. The Toronto
20 Star," marked for identification, as of
21 this date.)
22 (Recess taken.)
23 BY MR. GARBUS:
24 Q. Mr. Jacobsen, do you know of any
25 technology now known but not yet created or
INTERIM COURT REPORTING
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1 Jacobsen
2 anticipated that can use deCSS to descramble DVDs?
3 MR. COOPER: Would you read back
4 the question.
5 (Record read.)
6 Q. -- and make copies?
7 MR. COOPER: I find the question
8 terribly confusing. I think it assumes
9 facts not in evidence.
10 Q. Go ahead.
11 A. I don't understand the question,
12 because my understanding is deCSS allows you to
13 decrypt a DVD and then copy it to your hard drive.
14 Q. Once it is on the hard drive, it is
15 on the hard drive in descrambled form or scrambled
16 form?
17 A. I believe it's in the unscrambled
18 form.
19 Q. So you believe that once it goes
20 onto your hard drive you can immediately show it on
21 your video monitor?
22 MR. COOPER: This witness is not
23 here to testify on the technical aspects
24 of deCSS.
25 Q. Is that your understanding?
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1 Jacobsen
2 A. That is my understanding.
3 Q. So that once you put it on your hard
4 drive it is there and all you have to do is push a
5 button and you can watch it on your computer?
6 MR. COOPER: That probably
7 misstates the technological aspects of
8 what it requires to make it happen and
9 this witness is not here for this
10 purpose.
11 Q. Go ahead.
12 A. I misspoke. I mean there would have
13 to be some sort of media player associated with the
14 computer. But my understanding is if it is an
15 unscrambled format, you would need a software
16 program that would allow you to play it on a
17 computer.
18 Q. What kind of software program would
19 that be?
20 A. A media player, Windows media
21 player.
22 Q. Other than the broadband lines, the
23 T1 lines, the T3 lines or the DSL, or the regular
24 telephone lines, do you know of any other method of
25 transmission of deCSS to unscramble DVDs?
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1 Jacobsen
2 MR. COOPER: Again, this witness
3 isn't here to testify on the
4 technological matters. I think you have
5 misstated the function of deCSS and
6 misstated, as well, what the various
7 methods of transmission for access to the
8 internet are. With those objections, if
9 the witness can answer the question, I
10 will allow him to do so.
11 A. I didn't understand the question.
12 Q. Other than DSL lines, telephone
13 lines, T1, T3, or the broadband, do you know of any
14 other technology that permits for the sending of
15 decrypted DVD movies?
16 A. Sending them where? I don't
17 understand the question.
18 Q. From one person to another.
19 A. Computer to computer?
20 Q. Yes.
21 A. I mean I would suppose there is no
22 reason why someone couldn't put it on a disk and
23 put it into your computer disk to disk. I don't
24 know the answer.
25 Q. There are various different ways or
INTERIM COURT REPORTING
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1 Jacobsen
2 cables or pathways that you can have piracy on.
3 One of the present pathways are DSL, another one is
4 T1, another one is T3, another one is broadband.
5 Can you tell me whether there is any
6 other pathway that you know of?
7 MR. COOPER: You have used a
8 variety of different references as you
9 have asked this question. I will note
10 that my understanding of broadband might
11 differ from yours.
12 MR. GARBUS: We might call
13 broadband T3.
14 Q. Whatever interpretation you take of
15 broadband, can you answer that question? If you
16 want to give me several different interpretations
17 of broadband, just give it to me.
18 A. There is a whole developing field of
19 wireless communication that you didn't mention,
20 which I assume would be a method to also transmit
21 information from computer to computer.
22 Q. Thus far, have you determined
23 whether or not decrypted DVD movies have been sent
24 over the wireless?
25 A. I have not.
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1 Jacobsen
2 Q. Do you know if that is possible?
3 MR. COOPER: To determine --
4 MR. GARBUS: -- whether that can
5 be done.
6 A. I would assume it would be possible
7 to determine. It could be done. I don't have the
8 technical ability myself to make that
9 determination.
10 Q. Has anyone at the MPAA, to your
11 knowledge, made any technological determination
12 with the use of the wireless with respect to
13 decrypted DVD movies? How long it would take, how
14 it would be done, or any of the mechanics of it.
15 MR. COOPER: Assumes facts not in
16 evidence.
17 Q. Go ahead, Mr. Jacobsen.
18 A. If you are asking me if I know of
19 any studies that have been undertaken to determine
20 how long it would take to transmit from one
21 computer to another, the answer is know.
22 Q. Let me show you Exhibit 12 and ask
23 whether or not that is the article that you saw.
24 A. (Witness reviewed document.)
25 I'm not 100 percent sure, but it
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1 Jacobsen
2 could be. I mean it rings a bell.
3 Q. Do you want to just take a look at
4 it for another minute?
5 A. (Witness complied with request.)
6 Q. Is this the article that you read?
7 A. I don't remember. It could be.
8 Q. This article is dated May 4th,
9 according to the printout that I have. Is this the
10 first time that you learned that anybody had tried
11 to use deCSS to make a copy of a DVD? I believe
12 that was your testimony before, that the first time
13 you ever heard of anyone actually trying to make a
14 copy was when you saw the article.
15 MR. COOPER: First of all, the
16 witness can't identify this as the
17 article, so the reference to the date
18 isn't terribly meaningful. But I think,
19 as well, you are misunderstanding his
20 prior testimony.
21 BY MR. GARBUS:
22 Q. Go ahead, Mr. Jacobsen. Why don't
23 you again straighten us both out.
24 A. I think what I said was I read an
25 article by a news reporter who claimed he had done
INTERIM COURT REPORTING
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1 Jacobsen
2 it and I have also been made aware of website
3 locations or internet locations where people make
4 the same claim. Perhaps not in the detail that the
5 reporter did, but claiming they have done it.
6 Q. And in the website where people
7 claim that they have done it, have they told you,
8 do you remember, anything about how long it took
9 them to do it?
10 A. I don't recall.
11 Q. Do you recall whether they say they
12 did it successfully?
13 A. I don't recall that that discussion
14 occurred. It is just the statement that it had
15 been done.
16 Q. Do you recall anything about the
17 quality of the DVD that they claim had been copied?
18 A. I don't.
19 Q. Can you produce copies or any
20 information concerning those websites?
21 A. Well, the one, as I did state, was a
22 prior defendant in this case, Mr. Reimerdes, he had
23 posted it on his --
24 Q. Other than Mr. Reimerdes, do you
25 know of anyone else who has ever claimed to have
INTERIM COURT REPORTING
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1 Jacobsen
2 done it?
3 A. I have not actually seen the sites
4 myself. I have been informed by members of my
5 staff that those claims have been made.
6 Q. Have you downloaded the printed
7 material from those sites?
8 A. I have not.
9 Q. Has your staff?
10 A. I don't know that answer.
11 RQ Q. Will you find that out? And if you
12 have, will you please give me the printed material?
13 If you don't have the printed material, will you
14 give me any other documentation that you have
15 indicating the names of the websites, the names of
16 the people, if you have them, who allegedly claim
17 that you can do it or should do it or had done it,
18 and their addresses?
19 MR. COOPER: We will take the
20 request under advisement.
21 Q. So as you sit here today, the only
22 person that you know who ever claimed that they had
23 copied a DVD through deCSS is Reimerdes; is that
24 right?
25 A. And apparently the reporter in this
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1 Jacobsen
2 (indicating).
3 Q. Two people.
4 MR. COOPER: The witness was
5 referencing Exhibit 12.
6 Q. Do you know whether Reimerdes had
7 actually ever done it?
8 A. I do not.
9 Q. Did anyone ever question him to see
10 whether he had done it?
11 A. I don't know.
12 Q. So you don't know whether, again, he
13 was exaggerating or distorting it or whether he had
14 actually done it?
15 A. That's correct.
16
17
18 Confidential
19
20
21
22
23
24
25
INTERIM COURT REPORTING
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1 Confidential
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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23
24
25
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1 Confidential
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23 Q. But you can tell me that in trying
24 to determine the source of all of the pirated
25 copies that the MPAA has seen, you are able to say
INTERIM COURT REPORTING
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1 Jacobsen
2 conclusively that any one copy ever came from a
3 deCSS?
4 MR. COOPER: That he has
5 previously answered.
6 Q. Is that right?
7 A. That is correct.
8 Q. How long have you been trying to
9 determine the sources of pirated material? I
10 presume for as long as you have been involved in
11 this venture of anti-piracy.
12 A. Your presumption would be correct.
13 In the five years, five plus months that I have
14 worked there, that has always been something that I
15 have tried to do.
16 Q. So it is fair to say that in the
17 last year, to your knowledge, no one has been ever
18 able to attribute a copied DVD to a deCSS source?
19 MR. COOPER: I think your use of
20 it, the last year of your time frame is
21 misleading. I am not aware that deCSS
22 has existed for a year.
23 Q. To your knowledge, how long has
24 deCSS existed?
25 A. I became aware of it either in
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1 Jacobsen
2 October or November of 1999.
3 Q. Since October or November of 1999,
4 have you ever determined that one single copy has
5 ever been made through the use of deCSS?
6 MR. COOPER: Asked and answered.
7 A. I have no conclusive evidence that
8 has ever occurred.
9 Q. When you say "conclusive," do you
10 have any inconclusive evidence?
11 MR. COOPER: Asked and answered.
12 Q. The only inconclusive evidence is
13 the newspaper article?
14 MR. COOPER: Mischaracterizes the
15 witness' testimony.
16 Q. What is the inconclusive evidence?
17 MR. COOPER: Asked and answered.
18 A. Would be claims made by people that
19 they have done so.
20 RQ MR. GARBUS: Mr. Cooper, we
21 anticipate going to trial in this case. I
22 would ask that if between now and the trial
23 of that case there is any information about
24 deCSS as a source of a particular pirated
25 copy, that that information be furnished to
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1 Jacobsen
2 me as part of the document request.
3 In other words, I would not want the
4 document request either with respect to
5 pirated copies or different technologies
6 that carry deCSS or decrypted DVDs to be
7 limited solely to the time of the
8 deposition, but if you get additional
9 documents with respect to any of the
10 questions that I have asked this witness
11 and you agree to produce files up to
12 today's date, I would like to make that
13 request for the documents for the date
14 going forward to the date of trial.
15 Off the record.
16 MR. COOPER: I note the request.
17 We will take it under advisement.
18 Q. Did you ever contact the newspaper
19 in which you saw the article, whether it be this
20 article or a different article, and advise the
21 newspaper not to run articles about the method of
22 making decrypted movies from deCSS?
23 MR. COOPER: Would you read it
24 back, please.
25 (Record read.)
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1 Jacobsen
2 A. I never contacted the writer of the
3 newspaper article that I read.
4 Q. Did you ever determine whether or
5 not those newspapers ever got a response, letters,
6 or comments, either orally or in writing, to the
7 author's article where he claimed that he had used
8 deCSS to make copies of DVDs?
9 A. I'm sorry. Did you ask if I ever --
10 MR. GARBUS: Off the record.
11 (Discussion off the record.)
12 A. I never contacted the newspaper, at
13 all.
14 Q. Has anyone ever told you about the
15 quality of DVD movie that has been decrypted
16 through the use of deCSS?
17 A. No.
18 Q. So we can't get into a discussion
19 about good quality, bad quality, poor quality,
20 terrific quality, because that is not something you
21 have any knowledge of?
22 A. That's correct.
23 Q. Do you have on your staff people who
24 are "technical people" who know how long it would
25 take to upload a gigabyte?
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1 Jacobsen
2 MR. COOPER: A gigabyte of data?
3 MR. GARBUS: Yes.
4 MR. COOPER: Onto another site on
5 the internet?
6 MR. GARBUS: Yes.
7 A. I have someone on my staff who is
8 conversant with the internet.
9 Q. Who is that?
10
11
12
13
14 Confidential
15
16
17
18
19
20
21
22
23
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24 Q. Let me show you the last line of
25 Paragraph 21, at Page 8 of the affidavit of John
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2 Gilmore and ask whether you have any information
3 about whether or not that sentence is accurate.
4 MR. COOPER: The attention --
5 Q. "Using the internet to send or sell
6 copies of stored movies is particularly
7 unreasonable: Uploading a single gigabyte over a
8 56K modem would take about 40 hours. So, an entire
9 DVD would take many days."
10 Do you have the technical knowledge
11 to pass judgment on the accuracy of that statement?
12 MR. COOPER: I will note that he
13 is not here to testify on such matters.
14 Q. Go ahead.
15 A. I would assume he is correct, but
16 the majority of the people that we are concerned
17 about are not using 56K modem.
18 Q. What are they using?
19 A. They are using either broadband or a
20 T1, a T3, a university system.
21 Q. How long would it take over T1?
22 A. I don't know the answer. It would
23 be significantly less than this.
24 Q. How long would it take over T3?
25 A. I don't know the answer.
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2 Q. How long would it take over
3 broadband?
4 A. I don't know the answer.
5 Q. Does anybody at the MPAA know?
6 A. I think all of those factors vary
7 upon the size of the file that you are dealing
8 with, how busy the particular pipe is at the
9 particular time you are trying to use it. But yes,
10 we would have rough estimates of what the time
11 frame would be.
12 RQ MR. GARBUS: Would you produce that
13 information?
14 MR. COOPER: The fact that they
15 could estimate it doesn't mean that they
16 do have estimates in existence.
17 Q. Have you estimated it?
18 A. In general discussion perhaps, but I
19 don't recall ever producing a written document that
20 sets up those estimates.
21 Q. No pieces of paper?
22 A. That's correct.
23 Q. Have you heard of anybody ever
24 trying to use the broadband to send a decrypted DVD
25 movie?
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2 A. I think I have already testified,
3 outside of the fact that people have claimed they
4 have used DVD deCSS, I am unaware of anybody
5 actually transmitting it or actually decrypting a
6 DVD.
7 Q. Before you said that the mere
8 transmission of deCSS is piracy. Is that right?
9 A. What I suggested was the posting for
10 trafficking or trafficking in deCSS, I would
11 consider it to be within the term "piracy," as I
12 used the term "piracy" in my program.
13 MR. GARBUS: Can I hear the answer
14 again?
15 (Record read.)
16 Q. How about the postings, if for
17 reasons other than trafficking? As, for example,
18 on university sites?
19 MR. COOPER: Calls for a legal
20 conclusion and assumes facts not in
21 evidence.
22 Q. Go ahead. Can you answer the
23 question?
24 A. The distribution, in my mind, would
25 be the same as trafficking. If I am offering for
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2 distribution deCSS, that is another word that is
3 synonymous with trafficking.
4 Q. You are saying that the mere posting
5 by anybody of deCSS, whether it be academic, a
6 university, an author, would under your definition
7 come within trafficking?
8 MR. COOPER: Same objection.
9 Q. Is that right?
10 A. Not necessarily.
11 Q. Explain that to me.
12 MR. COOPER: Same objections.
13 Q. Go ahead.
14 MR. COOPER: Let me confer with
15 the witness.
16 MR. GARBUS: Let me get an answer
17 at this time.
18 MR. COOPER: I just want to find
19 out if the witness is --
20 MR. GARBUS: Let me get an answer.
21 MR. COOPER: As long as it is
22 exclusive of material from you had from
23 counsel, that's fine.
24 Q. Go ahead. Just give me the answer.
25 A. I generally understand that there
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2 might be situations where parts of the utility or
3 reasons for the utility being used may or may not
4 violate the law. I mean potentially that
5 possibility exists.
6 RL Q. Tell me where that potentiality
7 exists.
8 DI MR. COOPER: This witness is not
9 offered for purposes of testifying on legal
10 matters and I am not going to allow this
11 witness to provide testimony with respect
12 to his understanding of the law. He is
13 neither an expert, nor is he being offered
14 as a witness capable of testifying on the
15 law and I am going to direct him not to
16 answer questions outside of the scope of
17 his expertise and his designation as a
18 witness.
19 Q. Have you ever seen any postings in
20 universities or in academic journals or by
21 cryptographers that you would consider not to be
22 trafficking?
23 A. I don't recall ever seeing such
24 postings. Period.
25 Q. Have you ever looked at academic
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2 sites?
3 A. Have I?
4 Q. Yes.
5 A. No.
6 MR. GARBUS: Mark this as the next
7 exhibit.
8 (Defendants' Exhibit 13, three-page
9 document dated 2/8/00, marked for
10 identification, as of this date.)
11 BY MR. GARBUS:
12 Q. Wasn't a cease and desist letter
13 sent out to Carnegie Mellon University concerning
14 the posting of deCSS?
15 MR. COOPER: Let me just, for the
16 record, note that the witness has been
17 provided a document which appears to be a
18 letter from the MPAA to a Mark Poepping,
19 which appears to be a correspondence
20 falling within the description Mr. Garbus
21 just made.
22 A. I mean it would appear from this
23 Exhibit that the answer is yes.
24 Q. Do you know whether or not any
25 copies of DVDs were made from the posting at
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2 Carnegie Mellon University?
3 MR. COOPER: Calls for
4 speculation.
5 A. I do not.
6 Q. Did you ever try and determine that?
7 A. No.
8 Q. Do you know what use was being put
9 at Carnegie Mellon to the posting of the deCSS?
10 A. I do not.
11 Q. Did you ever make any inquiry -- by
12 "you" I mean the MPAA -- before or after you sent
13 the letter to Carnegie Mellon University?
14 MR. COOPER: Would you read back
15 the question.
16 (Record read.)
17 MR. COOPER: I just note some
18 inquiry must have been done in order to
19 send the letter. You mean to distinguish
20 that?
21 Q. In other words, did you ever make
22 any inquiry into Carnegie Mellon University as to
23 why it was being posted before you sent the letter?
24 A. Did I? No.
25 Q. By "I," I am talking about you, the
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2 MPAA, the nine plaintiffs.
3 A. I don't know.
4 Q. Was any distinction made before the
5 cease and desist letters were sent out as to who
6 should receive them within that large group of
7 people who had posted deCSS?
8 MR. COOPER: If I understand your
9 question, I just want to admonish the
10 witness to exclude from his answer any
11 information that comes solely through
12 conversations in which counsel
13 participated.
14 A. I don't have an answer that I could
15 make which would not involve discussions with
16 counsel.
17 MR. GARBUS: Read back the
18 question and the answer.
19 (Record read.)
20 BY MR. GARBUS:
21 Q. When did you graduate from law
22 school?
23 A. 1969.
24 Q. Which law school did you go to?
25 A. Northwestern University .
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2 Q. Which college did you go to?
3 A. Valparaiso University.
4 V-A-L-P-A-R-A-I-S-O.
5 Q. What did you do after you left law
6 school?
7 A. I went to work for the Federal
8 Bureau of Investigation.
9 Q. For how long?
10 A. Twenty-five and a half years.
11 Q. What kind of work did you do for the
12 Federal Bureau of Investigation?
13 A. I was a special agent.
14 Q. What were your duties there?
15 A. Wide variety, but I worked many
16 different types of violations. For a period of
17 time I was our in-house office legal counsel and
18 for the last twelve years I was supervisor of
19 various squads and programs.
20 RL Q. Before when you said you could see
21 how postings could be nonviolative, is the Carnegie
22 Mellon such a posting?
23 DI MR. COOPER: I will make the same
24 objection with respect to the last
25 question. Calling for a legal conclusion
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2 and being outside the scope of this
3 witness' expertise in the area for which he
4 has been designated. I direct him not to
5 answer.
6 BY MR. GARBUS:
7 Q. Can you see any postings that you as
8 a senior vice president and director of worldwide
9 anti-piracy would not constitute any involvement in
10 "trafficking"?
11 MR. COOPER: Read back the
12 question.
13 (Record read.)
14 MR. COOPER: In addition to the
15 objections to the prior question, I
16 believe that this is an incomplete
17 hypothetical and calls for speculation.
18 Q. Go ahead.
19 A. Can I assume you are talking about
20 deCSS posting?
21 Q. Yes.
22 A. For purposes of distribution to
23 anybody that wants to pick it up on the net?
24 Q. No. In other words, if Carnegie
25 Mellon posts it, does that necessarily mean that
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2 Carnegie Mellon wants anybody on the net to have
3 it? Is that the sole reason for Carnegie Mellon to
4 post it?
5 MR. COOPER: Same objection as to
6 the last question. The witness is not
7 here to speculate about the purposes that
8 Carnegie Mellon may have in posting
9 anything.
10 A. I do not know what the reason was
11 that they posted it for. I mean I can't attribute
12 a reason for them without knowing what the facts
13 were.
14 Q. Do you know where Carnegie Mellon
15 posted it?
16 A. I do not.
17 Q. Do you know whether any
18 cryptographers posted deCSS?
19 A. I do not.
20 Q. Can you see any reason why
21 cryptographers would post deCSS?
22 MR. COOPER: Calls for
23 speculation. It is an incomplete
24 hypothetical.
25 A. I don't know. I am not a
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2 cryptographer.
3 Q. Have you ever had any training in
4 cryptography?
5 A. No.
6 Q. Have you seen the affidavit of Frank
7 Stevenson in this case where he indicates he is
8 going to write an article, including deCSS in it?
9 A. I have not seen Mr. Stevenson's
10 affidavit.
11 Q. Is it your view that writing an
12 academic article, including deCSS in that article
13 would be trafficking?
14 MR. COOPER: Calls for a legal
15 conclusion. It is outside the ambit of
16 this witness' designation.
17 Q. Go ahead.
18 A. I'm not sure that I understand what
19 you mean by "including deCSS in the article."
20 MR. COOPER: It is also an
21 incomplete hypothetical.
22 RL Q. If an academic were to write about
23 the method by which deCSS was arrived at, is it
24 your understanding that that article would be
25 violative of Section 1201?
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2 DI MR. COOPER: This witness has not
3 been designated and is not here to testify
4 about hypothetical legal situations which
5 call for legal conclusions. I direct him
6 not to answer such questions.
7 RL Q. Is it your understanding that it
8 would be piracy if an academic wrote an article
9 describing how deCSS was created?
10 MR. COOPER: Same objections.
11 Q. Go ahead.
12 MR. COOPER: Same direction.
13 MR. GARBUS: Not to answer?
14 DI MR. COOPER: I directed him not to
15 answer.
16 MR. GARBUS: Not to answer?
17 MR. COOPER: Yes.
18 MR. GARBUS: I thought we had an
19 understanding that the witness would
20 answer questions and that the judge would
21 then rule on them. I didn't understand
22 that there would be directions not to
23 answer. Is your position that you will
24 direct him not to answer until such time
25 as a judge rules on the question?
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2 MR. COOPER: I'm not sure what
3 understanding you are referring to. I'm
4 not aware of any understanding in this
5 case that would change the rules of
6 Federal Evidence which require and as
7 well allow that I make objections with
8 respect to the attorney-client privilege
9 and as well as the competency to answer
10 questions on an expert basis.
11 If this witness were designated
12 to testify in expert matters, I would
13 view it differently. But he is not.
14 He is here to testify about factual
15 matters.
16 MR. GARBUS: We will get a ruling.
17 This witness is being asked to testify
18 about piracy and I am asking him what
19 constitutes piracy and what constitutes
20 trafficking, and what is violative of
21 trafficking laws.
22 MR. COOPER: My objection is not
23 as to any factual matters within this
24 witness' knowledge. My objection is to
25 hypothetical legal matters as to which
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2 you are seeking a legal opinion.
3 Q. Have you advised any academic
4 institutions that you consider the posting of deCSS
5 to be piracy?
6 MR. COOPER: Objection as to form.
7 It's vague.
8 Q. Go ahead.
9 A. If you -- well, I mean Exhibit 13
10 indicates or establishes the fact that we have sent
11 to a university a cease and desist letter regarding
12 the posting of the deCSS circumvention device.
13 Q. So does that mean that you have
14 concluded that irrespective of the purpose for
15 which that university posted the deCSS, it would be
16 a violation of the anti-piracy statute?
17 MR. COOPER: The letter speaks for
18 itself. If you are asking the witness to
19 draw a conclusion, I object on that
20 basis. If you are asking the witness to
21 testify about the internal conclusions of
22 the MPAA with respect to the legality, I
23 direct the witness not to answer if the
24 sole source of that information is from
25 conversations with counsel.
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2 A. I am confused. I'm sorry.
3 THE WITNESS: Please read back the
4 question and what my counsel just said.
5 (Record read.)
6 A. I will have to not answer, because
7 the source of the information would be from
8 conversations with counsel.
9 Q. Do you know enough about
10 cryptography to tell me whether or not the
11 publication of deCSS would provide a valuable tool
12 for the academic discipline of cryptography?
13 A. I do not.
14 Q. Do you know enough about
15 cryptography to tell me whether or not the
16 publication of the entire deCSS code would be of
17 value to the academic study of cryptography?
18 A. I do not.
19 Q. Do you know whether or not anyone --
20 when you said "you," you were speaking on behalf of
21 yourself, the MPAA, and the nine movie studios?
22 MR. COOPER: Would you -- I don't
23 know how the answer to your last answer
24 could possibly be "yes," but would you
25 read back the prior two questions?
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2 MR. GARBUS: I have already asked
3 him -- when I say "you," I mean you, the
4 MPAA, the movie studios.
5 MR. COOPER: I understand what you
6 mean. I thought --
7 MR. GARBUS: He agreed to that.
8 If you want, I will just go through it
9 and I will ask the same question ten
10 different times.
11 MR. COOPER: That's fine. I just
12 want -- before we go into that, I just
13 want to have the last two questions read
14 back.
15 (Record read.)
16 MR. COOPER: Let me just say that
17 from the specific questions you asked, I
18 don't think a reasonable person could
19 have concluded that you wanted the
20 witness to testify not only about his own
21 personal knowledge, but about the
22 knowledge of every person employed by any
23 of the plaintiffs, excluding Time Warner
24 or any of the employees of the MPAA, and
25 I believe the witness manifestly
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2 testified about his personal knowledge in
3 answer to those two questions.
4 Q. After we get past your personal
5 knowledge, do you know of anybody at the MPAA --
6 MR. GARBUS: Off the record.
7 (Record read.)
8 BY MR. GARBUS:
9 Q. Do you know anybody at the MPAA who
10 knows whether or not the publication of the method
11 of which deCSS is arrived at would be of value in
12 the study of cryptography?
13 A. I don't know if there is anybody at
14 the MPAA who has that type of knowledge about
15 cryptography.
16 Q. Have you had any discussions with
17 anyone at the MPAA concerning the potential uses of
18 deCSS, whether the code itself or the method at
19 which it was arrived at would be of value in the
20 academic discipline of cryptography?
21 MR. COOPER: Excluding discussions
22 with counsel.
23 A. No.
24 Q. Do you know of anybody at the MPAA
25 who would know about the value of an article
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2 describing reverse engineering in the academic
3 discipline of cryptography?
4 MR. COOPER: In the abstract or
5 with respect to deCSS?
6 MR. GARBUS: With respect to
7 deCSS.
8 A. I don't know if there is anybody at
9 the MPAA who would have that knowledge.
10 Q. Do you know what reverse engineering
11 is?
12 A. Generally.
13 Q. Have you seen any documents that use
14 the term reverse engineering and deCSS at either
15 the MPAA or the movie studio plaintiffs?
16 MR. COOPER: That's a "yes" or
17 "no" question.
18 A. Together? Where they used them
19 together?
20 Q. Yes.
21 A. I believe I have.
22 Q. Where are those documents?
23 A. I think they are pleadings in this
24 case.
25 Q. Other than the pleadings.
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2 A. I think there may be some -- there
3 is a possibility that on the website there may be
4 some FAQs that deal with -- I don't recall if they
5 have reverse engineering and deCSS in the same
6 document, but it's possible.
7 Q. Have you downloaded it?
8 A. Discussing this case.
9 Q. Which websites?
10 A. I believe our website, the MPAA
11 website.
12 Q. Other than the MPAA website?
13 A. Not that I am aware of.
14 Q. Do you know of any cryptographers at
15 the movie studios?
16 A. I do not.
17 Q. Do you know whether any
18 cryptographers were hired by the MPAA or the movie
19 studios prior to the institution of this lawsuit?
20 MR. COOPER: That's a "yes" or
21 "no" question.
22 A. I don't know.
23 Q. Do you know whether any
24 cryptographers were hired by the MPAA or the movie
25 studios after the institution of this lawsuit?
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2 A. I don't know if Mr. Schumann is a
3 cryptographer or not.
4 Q. The only person that you know that
5 has been hired as an expert with respect to this
6 case by either the MPAA or Proskauer or the movie
7 studios is Mr. Schumann; is that right?
8 MR. COOPER: Exclude from that
9 answer anything you know only through
10 discussions with counsel.
11 A. Yes.
12 Q. Have you had any discussions
13 yourself with any cryptographers who might become
14 potential witnesses in this case?
15 A. I have not.
16 Q. To your knowledge, has anybody at
17 any of the movie studios thus far had any
18 conversations with any cryptographers or scientists
19 who might become witnesses in this case?
20 MR. COOPER: Same admonition with
21 respect to conversations with counsel.
22 A. I don't know of any.
23 Q. When you say you don't know of any,
24 since you are in charge of the worldwide
25 Anti-Piracy Unit, would you think that any would
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2 have been hired without your knowledge?
3 MR. COOPER: You are talking about
4 hired in connection with this litigation?
5 MR. GARBUS: Hired in connection
6 with the deCSS issue.
7 MR. COOPER: Lacks foundation.
8 A. By the movie studios or by MPAA?
9 Q. Either.
10 A. By MPAA, I would expect that I would
11 know. By the movie studios, I don't know whether I
12 would know or not.
13 Q. Has anyone at the movie studios told
14 you that they have hired any scientists, academists
15 or cryptographers with respect to the deCSS suit?
16 MR. COOPER: Again, excludes from
17 your answer privileged communications.
18 A. No.
19 Q. Do you know what DivX is?
20 MR. COOPER: D-I-V-X?
21 MR. GARBUS: Yes.
22 A. In what context? I know of several
23 DivX's.
24 Q. Which are?
25 A. The original DivX I knew about was a
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