9 June 2000. Thanks to Anonymous.
1
1
2
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 15, 2000
15 10:25 a.m.
16
17 DEPOSITION of ROBERT W. SCHUMANN,
18 held at the offices of Frankfurt Garbus
19 Klein & Selz, P.C., 488 Madison Avenue, New
20 York, New York, pursuant to Subpoena and
21 Notice, before ELIZABETH SANTAMARIA, a
22 Notary Public of the State of New York.
23
24 Reported by:
ELIZABETH SANTAMARIA
25 JOB NO. 05150SCH
INTERIM COURT REPORTING
2
1
2 A p p e a r a n c e s :
3
4 PROSKAUER ROSE LLP
5 Attorneys for Plaintiffs
6 1585 Broadway
7 New York, New York 10036-8299
8 BY: LEON P. GOLD, ESQ.
9 - and -
10 WILLIAM M. HART, ESQ. (a.m only)
11
12 FRANKFURT GARBUS KLEIN & SELZ, P.C.
13 Attorneys for Defendants
14 488 Madison Avenue
15 New York, New York 10022
16 BY: MARTIN GARBUS, ESQ.
17 - and -
18 EDWARD HERNSTADT, ESQ.
19
ALSO PRESENT:
20
Motion Picture Association
21 Mark D. Litvack, Esq.
In-house Counsel
22
--o0o--
23
24
25
INTERIM COURT REPORTING
3
1
2 --o0o--
3
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--
19
20
21
22
23
24
25
INTERIM COURT REPORTING
4
1 Schumann
2 R O B E R T W. S C H U M A N N, called as a
3 witness, having been duly sworn by the
4 Notary Public, was examined and testified
5 as follows:
6 EXAMINATION BY
7 MR. GARBUS:
8 Q. CONFIDENTIAL
9 CONFIDENTIAL
10 A. CONFIDENTIAL
11 Q. CONFIDENTIAL
12 A. CONFIDENTIAL
13 CONFIDENTIAL
14 MR. GOLD: Mr. Garbus, I would
15 like to propose that we stipulate that
16 this deposition is taken pursuant to the
17 Federal Rules of Civil Procedure and
18 related Federal law. Is that okay with
19 you?
20 MR. GARBUS: Absolutely.
21 MR. GOLD: I also want to note
22 that the witness appears here today
23 pursuant to a Subpoena served on the MPAA
24 and a Notice of Deposition served on all
25 of the plaintiffs, that he is a
INTERIM COURT REPORTING
5
1 Schumann
2 designated fact witness of the Motion
3 Picture Association of America and a
4 designated fact witness of all of the
5 plaintiffs, except for Time Warner.
6 With respect to Time Warner or
7 with respect to the Time Warner
8 plaintiff, the court has ruled that at
9 this stage you cannot take any
10 discovery of that organization. The
11 designated areas were set out in a
12 letter to you last week and they are
13 the following subjects:
14 A, DVD, CCS and DeCSS, Linux,
15 linking and hyperlinking, and the
16 existence of other DVD decryption
17 devices.
18 Those designations are the only
19 appropriate area of testimony today.
20 Mr. Hart points out that there
21 was another subject added by a
22 supplementary designation, and the
23 subject was injury to the plaintiffs.
24 MR. GARBUS: I respect that as
25 your position. You know where we
INTERIM COURT REPORTING
6
1 Schumann
2 disagree.
3 MR. GOLD: No, but I don't think
4 it is relevant.
5 Q. Mr. Schumann, when did you first
6 learn about DeCSS?
7 A. Probably in, I don't know, September
8 or October of last year.
9 Q. Did you ever hear of something
10 called MORE?
11 A. Yes, I have.
12 Q. Have you read the affidavit of
13 Mr. Stevenson before you came here today?
14 A. Frank Stevenson?
15 Q. Yes.
16 A. Yes.
17 Q. Do you know who Mr. Stevenson is?
18 A. Only from my analysis in this
19 effort.
20 MR. GOLD: I'm sorry to interrupt.
21 I forgot to mention that the deposition
22 today is subject to the confidentiality
23 agreement we have all signed and I would
24 like to agree to reserve my
25 confidentiality stipulations until we get
INTERIM COURT REPORTING
7
1 Schumann
2 a transcript.
3 MR. GARBUS: What do you mean by
4 that?
5 MR. GOLD: I will designate what
6 is confidential when I get the
7 transcript.
8 MR. GARBUS: I think if you have
9 an objection now as to anything that is
10 confidential, you should say.
11 MR. GOLD: Well, I don't know what
12 you are going to bring up. In that
13 event, since you don't want to agree to
14 that, then I will designate the whole
15 transcript as confidential. However,
16 when I get the transcript I will promptly
17 get to you an amendment, if an amendment
18 is called for.
19 MR. GARBUS: I disagree that this
20 deposition is confidential.
21 MR. GOLD: Do you intend to not
22 keep it confidential? Because we may
23 have to apply for an order.
24 MR. GARBUS: We will deal with it
25 at the appropriate time.
INTERIM COURT REPORTING
8
1 Schumann
2 MR. GOLD: Do you want to agree
3 that you will hold it confidential until
4 we make a specific designation when we
5 get the transcript?
6 MR. GARBUS: It may well be that I
7 am going to go through questions now that
8 have nothing to do with confidentiality.
9 MR. GOLD: It may be.
10 MR. GARBUS: If that is so, then
11 we don't get into any disagreement about
12 confidentiality.
13 MR. GOLD: That's not good enough,
14 because, among other things, I don't want
15 to wake up and see this transcript in the
16 newspaper tomorrow, and I have reasons to
17 believe that that is a possibility, but I
18 won't get into that thoroughly.
19 In light of this discussion, I
20 have designated the entire transcript
21 as confidential.
22 RL MR. GARBUS: Needless to say, I
23 object to it. Needless to say, we will get
24 a ruling on it.
25 BY MR. GARBUS:
INTERIM COURT REPORTING
9
1 Schumann
2 Q. Going back now to Masters of Reverse
3 Engineering or MORE, when for the first time did
4 you hear that?
5 A. Would have been probably November of
6 1999.
7 Q. Did you also read the affidavit of
8 Chris DiBona in this case?
9 A. I believe I did, yes.
10 Q. Did you receive the affidavit of
11 Robin Gross in this case?
12 A. Yes, I did.
13 Q. You saw the statement in her
14 affidavit that Mr. Carl Geckner had said, as far as
15 he knew, as far as ten days ago, there was no
16 piracy resulting from DeCSS? Did you see that?
17 A. I saw that statement, yes.
18 Q. Do you know that to be true?
19 A. No, I don't.
20 Q. You don't know one way or the other?
21 A. That's correct.
22 Q. So as of today you don't know
23 whether or not there has been any piracy or not
24 with respect to DeCSS?
25 A. That's accurate.
INTERIM COURT REPORTING
10
1 Schumann
2 Q. Getting back to Mr. Stevenson, when
3 for the first time did you see his affidavit?
4 A. His affidavit?
5 Q. Yes.
6 A. The one, I don't know, dated a
7 couple of weeks ago, I guess?
8 Q. Yes.
9 A. I would have seen it probably in the
10 last five days.
11 Q. Did you sign an affidavit in this
12 case?
13 A. Yes, I did.
14 Q. Did you sign two affidavits in this
15 case?
16 A. I believe I did, yes.
17 Q. Did you review them before you came
18 in here this morning?
19 A. Yes.
20 Q. Is everything that you said in those
21 affidavits true?
22 A. To the best of my knowledge, yes.
23 Q. Is there anything that you want to
24 change now before we go into a discussion of those
25 affidavits?
INTERIM COURT REPORTING
11
1 Schumann
2 A. No.
3 Q. Are there any factors that you have
4 learned since you signed those affidavits which
5 make any of the allegations in the affidavits
6 untrue?
7 A. Not to my knowledge.
8 Q. Going back to MORE, you say you
9 first heard of them in November of 1999?
10 A. Would have been November or early
11 December.
12 Q. Can you tell me what you heard about
13 them?
14 A. Only what I saw -- what I saw about
15 them in the development as journals, for lack of a
16 better word, of the Linux Group and then obviously
17 they were in the -- I must have seen them in
18 various newspaper press articles.
19 Q. To your knowledge, was MORE or any
20 members of MORE involved in the decrypting of
21 DeCSS?
22 A. Can you define "decrypting"?
23 MR. GARBUS: Withdraw the
24 question.
25 BY MR. GARBUS:
INTERIM COURT REPORTING
12
1 Schumann
2 Q. To your knowledge, was John Johansen
3 involved in any way with MORE?
4 A. I believe he stated he was.
5 Q. Can you tell me what your
6 recollection is of what he stated?
7 A. I believe he stated he was a member
8 of MORE in various forms.
9 Q. Do you know what MORE does or what
10 it claims to do?
11 A. All I know is their name stands for
12 Masters of Reverse Engineering and they claim to
13 have created DeCSS.
14 Q. Do you know that they claim to have
15 been working on developing an open source Linux DVD
16 player?
17 MR. GOLD: What is the question?
18 Read the question back, please.
19 A. I am not aware of any such claim.
20 Q. You don't know one way or another?
21 A. No. I said I was -- I am not aware
22 of any such claim.
23 Q. What is CSS-auth?
24 A. It is in reference to a particular
25 program?
INTERIM COURT REPORTING
13
1 Schumann
2 Q. Yes.
3 A. To my knowledge, it is a piece of
4 code for the Linux environment.
5 Q. Is it a program?
6 A. Yes, it is.
7 Q. Do you know who wrote it?
8 A. It was, I believe, written by Derek
9 Fawcus.
10 Q. Who is Derek Fawcus?
11 A. He was a member -- in my dealings
12 with that name, I don't know who he really is.
13 That's a name that was used. He was a member of
14 the DVD Development Group.
15 Q. Do you know what the Livid Group is?
16 A. Yes, I am aware of that name.
17 Q. What is the Livid Group?
18 A. It is a group of Linus developers
19 who are in the process of -- I assume they are
20 still doing it, developing a DVD player for Linux.
21 Q. When did they start to do that?
22 A. I don't know exactly when they
23 started.
24 Q. Approximately.
25 A. I guess early 1999, but I don't know
INTERIM COURT REPORTING
14
1 Schumann
2 the exact date.
3 Q. Do you know who are the members of
4 the Livid Group?
5 A. I knew some of them at the time I
6 reviewed materials, but I certainly don't claim to
7 know all the members.
8 Q. At the time you reviewed the
9 materials, can you tell me who some of the members
10 were?
11 A. I believe there was Derek Fawcus was
12 a member of that group, I believe Matt Pavlovich or
13 something like that, and there are a host of
14 others.
15 Q. Do you know anything about Derek
16 Fawcus's academic background?
17 A. No knowledge of that.
18 Q. How about Matt Pavlovich.
19 A. Only from, I believe, he gave a
20 deposition in this case. Not a deposition. I mean
21 an affidavit in this case, and he said he had been
22 to school -- been to college for four years.
23 Q. Did you ever have any dealings with
24 him?
25 A. No.
INTERIM COURT REPORTING
15
1 Schumann
2 Q. After you heard that the Livid Group
3 was developing a DVD program in early 1999, did you
4 hear anything further about it?
5 A. I did not know -- I did not know of
6 their existence in early 1999.
7 Q. When did you first learn of their
8 existence?
9 A. In November-December of 1999.
10 Q. Do you know what they have done
11 since with respect to the attempt to develop such a
12 program?
13 A. I have not followed the development
14 efforts.
15 Q. Do you know anything at all about
16 those developments from November to the present
17 day?
18 A. Only through what I have read in the
19 affidavits.
20 MR. GOLD: By the way, it being
21 Monday morning, I wasn't strong at
22 remembering everything I wanted to say
23 right away, but I gather that we have
24 agreed that objections to specific
25 questions are reserved.
INTERIM COURT REPORTING
16
1 Schumann
2 MR. GARBUS: Why wouldn't you make
3 your objections now?
4 MR. GOLD: I would rather reserve
5 them until the time of trial, which is
6 what everybody usually does.
7 MR. GARBUS: I think you reserve
8 objections as to substance, but not
9 objections as to form. I thought that
10 was the understanding. So that if there
11 is an objection as to form --
12 MR. GOLD: That will not be
13 reserved.
14 MR. GARBUS: Right.
15 MR. GOLD: Every other objection
16 will be reserved, if you agree to that.
17 MR. GARBUS: If you agree to that
18 for your examination of my people.
19 MR. GOLD: Sure.
20 MR. GARBUS: Good. Can I have the
21 last question, please.
22 (Record read.)
23 BY MR. GARBUS:
24 Q. Do you know anything about the
25 development of CSS-auth, when it was first done?
INTERIM COURT REPORTING
17
1 Schumann
2 A. I don't fully understand your
3 question.
4 Q. CSS-auth we have agreed is a Linux
5 BSD program written by the Livid Group?
6 A. It is a Linux program written by
7 Derek Fawcus.
8 Q. Do you know when it was written?
9 A. I believe, if recollections are
10 correct, it was written in June or July of 1999.
11 Q. What is its function?
12 A. Its function is to unlock a DVD
13 drive.
14 Q. Have you ever tried to use CSS-auth?
15 A. No, I have not used CSS-auth.
16 Q. Do you know whether it performs the
17 function that you just stated it did?
18 A. Based on the reports, it appears --
19 MR. GOLD: I am going to object to
20 the form of that question. If you would
21 like to restate it.
22 MR. GARBUS: What was the
23 question?
24 (Record read.)
25 MR. GARBUS: You object to the
INTERIM COURT REPORTING
18
1 Schumann
2 form?
3 MR. GOLD: Yes.
4 BY MR. GARBUS:
5 Q. Does the CSS-auth perform the
6 authorization to the DVD drive enabling the results
7 of a hidden block of data?
8 A. I'm sorry. The end of that question
9 was enabling --
10 Q. The reading of a hidden block of
11 data.
12 MR. GOLD: Maybe we can read the
13 whole question back, please.
14 (Record read.)
15 Q. Enabling the reading of a hidden
16 block of data.
17 A. I believe it might.
18 Q. What is CSS-cat?
19 A. I don't exactly know what that is.
20 Q. When you say you don't exactly know,
21 do you have any idea what it is?
22 A. I can only presume from its name.
23 Q. What is your presumption?
24 A. It is a --
25 MR. GOLD: I am going to object to
INTERIM COURT REPORTING
19
1 Schumann
2 the form.
3 Q. Go ahead. What is your
4 understanding of CSS-cat based on its name?
5 A. It is a mechanism for reading files.
6 Q. Do you know who developed CSS-cat?
7 A. I do not.
8 Q. Do you know whether or not it is a
9 Linux BSD program?
10 A. Can you describe Linux BSD?
11 Q. You previously said that CSS-auth
12 was a Linux BSD program.
13 A. I belief I said CSS-auth was a Linux
14 program.
15 Q. Is CSS-cat a Linux program?
16 A. I believe it is.
17 Q. Do you know who developed it?
18 A. I do not.
19 Q. Was it developed by the Livid Group?
20 A. It may have been. I have no
21 detailed knowledge.
22 Q. Was it developed by Mr. Fawcus?
23 A. I do not know.
24 Q. Can you tell me something about your
25 educational background?
INTERIM COURT REPORTING
20
1 Schumann
2 A. Sure.
3 Q. Go ahead. Where did you go to
4 college?
5 A. Rochester Institute of Technology.
6 Q. When did you finish?
7 A. 1985.
8 Q. What degree did you get?
9 A. Bachelor's.
10 Q. Did you get any subsequent
11 education?
12 A. I did not. No degree.
13 Q. Do you know what Linux is?
14 A. I assume so, yes.
15 Q. You assume you know?
16 A. As much as anybody knows what Linux
17 is.
18 Q. Tell me what you understand Linux to
19 be.
20 A. Linux is a variation of the UNIX
21 operating system.
22 Q. Have you ever operated Linux?
23 A. Yes, I have.
24 Q. Do you know what the term "open
25 source" means?
INTERIM COURT REPORTING
21
1 Schumann
2 A. Yes, I do.
3 Q. What does it mean?
4 A. It references a development style
5 where the source code is openly made available to
6 all developers.
7 Q. How did you learn about CSS-auth?
8 A. In my review of the development logs
9 from the Linux Development Group.
10 Q. When was that?
11 A. Would have been November or December
12 of 1999.
13 Q. Did you do any investigation as to
14 the amount of use of CSS-auth?
15 A. In what sense?
16 Q. Were people using it, to your
17 knowledge, in an attempt to replay DVDs?
18 A. Yes.
19 Q. Tell me how you came to that
20 knowledge. Merely from reading the Linux postings
21 or through some other source of information?
22 A. Through the Linux postings.
23 Q. Did you ever speak to anyone who had
24 done it?
25 A. No.
INTERIM COURT REPORTING
22
1 Schumann
2 Q. Today, so far as your own knowledge
3 goes, other than what you read on the Linux
4 postings, do you know if anyone had you ever used
5 Linux CSS-auth to go into DVDs or play DVDs?
6 A. No.
7 Q. With respect to your affidavit,
8 after you first learned of DeCSS, what did you then
9 do?
10 MR. GOLD: I object to the form of
11 the question.
12 Q. Did you try and see whether DeCSS
13 could decrypt the DVD?
14 A. Yes, I did.
15 Q. When did you do that?
16 A. It would have been the same,
17 November-December time frame.
18 Q. Tell me exactly what you did, when
19 you did it, and where you did it.
20 A. I would have done it in my office
21 and I'm sure I downloaded DeCSS from a site. I
22 don't know exactly which one offhand. And then I
23 ran it against a -- on a Windows machine against
24 the DVD drive.
25 Q. What happened?
INTERIM COURT REPORTING
23
1 Schumann
2 A. It showed me a very nice screen that
3 asks me what files, what I wanted to copy from the
4 DVD, and whether I wanted to merge the files
5 together, and where on my computer or the network
6 attached to my computer I wanted to write the
7 resultant file.
8 Q. Did you do that?
9 A. I did that, yes.
10 Q. How long did that take?
11 A. Not terribly long.
12 Q. Can you tell me what day this was?
13 A. I don't recall the exact date.
14 Q. When you say it's in your office,
15 where is your office?
16 A. In Herndon, Virginia.
17 Q. Are there any records that indicate
18 what you did on that date with respect to the
19 DeCSS?
20 A. I doubt I would have written a
21 detailed log, to that level of detail.
22 Q. I presume there is information on
23 your computer that would indicate what you did and
24 when you did it with respect to DeCSS; is that
25 right?
INTERIM COURT REPORTING
24
1 Schumann
2 A. If there is still a copy of DeCSS on
3 my computer, it might show the data I downloaded.
4 Q. Do you know if there is a copy of
5 DeCSS on your computer?
6 A. There quite possibly is.
7 Q. Isn't DeCSS designed to send the
8 material to a permanent computer file or a
9 computer's hard drive?
10 A. That is the function that it
11 performs, yes.
12 Q. So wouldn't you have that hard
13 drive?
14 A. Certainly.
15 Q. Where would that hard drive be?
16 A. It would be in a computer in my
17 office.
18 MR. GARBUS: Will you produce
19 that?
20 MR. GOLD: The entire computer in
21 his office?
22 MR. GARBUS: The hard drive.
23 MR. GOLD: You want the whole hard
24 drive?
25 MR. GARBUS: Yes.
INTERIM COURT REPORTING
25
1 Schumann
2 MR. GOLD: I object to that as
3 irrelevant.
4 BY MR. GARBUS:
5 Q. After you stored it on the hard
6 drive, then what did you do?
7 A. Then I presume I -- it may have been
8 zipped or compressed, so it downloaded faster. I
9 would presume it would have decompressed and I
10 would have executed the program. What I did with
11 the movie after --
12 Q. When you say it was zipped or
13 compressed, tell me the kind of computer you were
14 using to download the --
15 A. It was a Windows machine. I think
16 it was a Windows NT machine.
17 Q. You say it was zipped or compressed.
18 Can you tell me what that means?
19 A. It means that the executable file
20 was compressed, which is standard technique used in
21 the industry.
22 Q. Was this done on your machine also?
23 A. The compression?
24 Q. Yes.
25 A. No.
INTERIM COURT REPORTING
26
1 Schumann
2 Q. Where was that done?
3 A. I don't know where it was done.
4 Q. Well, tell me how you had it
5 compressed.
6 A. I didn't compress it. I received
7 it -- I would have received it, I believe,
8 compressed. I don't remember the details. It's a
9 standard technique, however.
10 Q. And then after you received it
11 compressed, what was then done?
12 A. I would have decompressed it or
13 perhaps it decompressed itself. I don't remember
14 the details. And then it installed itself.
15 Q. Did there come a time when you used
16 DeCSS?
17 A. I used DeCSS to test the -- to test
18 that it decrypted, yes.
19 Q. And you found that it did?
20 A. It appeared to have, yes.
21 Q. Did you then try and decrypt the
22 DVD?
23 A. That's what I would have done with
24 DeCSS.
25 Q. Did you ever try and see the movie,
INTERIM COURT REPORTING
27
1 Schumann
2 a particular DVD movie using DeCSS?
3 A. I did not, no.
4 Q. To your knowledge, has anyone ever
5 done that?
6 A. Yes.
7 Q. Who?
8 A. I believe some of the defendant
9 affidavits referenced that.
10 Q. To your knowledge, has other than
11 the defendants affidavits, prior to your seeing
12 those affidavits, did you know of one instance
13 where somebody used DeCSS to watch a DVD movie?
14 MR. GOLD: If your knowledge
15 resulted from any conversation with an
16 attorney or any conversation with the
17 plaintiffs after this suit was commenced,
18 I wouldn't answer the question.
19 Otherwise, I would answer.
20 MR. GARBUS: Go ahead.
21 A. Based on that, I think I will need
22 to refuse --
23 MR. GOLD: In response to that
24 question, I am objecting on the
25 attorney-client privilege and the work
INTERIM COURT REPORTING
28
1 Schumann
2 product privilege.
3 Q. Prior to January 14th, which is when
4 the suit started, had you ever heard of anyone
5 watching a DVD movie, having had access to the DVD
6 movie through DeCSS?
7 A. Yes.
8 Q. Who was that?
9 A. I don't remember the exact names,
10 but there are a variety of descriptions in the
11 Linux development logs of people who had using
12 DeCSS then proceeded to watch the movie.
13 Q. Other than the Linux logs, have you
14 ever heard of anyone using DeCSS to observe or
15 watch a DVD?
16 A. Prior to January 14th, no.
17 Q. You annexed some of those logs, did
18 you not, to your affidavit in this case?
19 A. I believe, yes, that's true.
20 Q. Now, you took those documents that
21 you annexed from your affidavit to your affidavit,
22 I presume, out of lengthier logs that you had.
23 In other words, you selected which
24 documents reflected the use of DeCSS to watch DVDs;
25 is that right?
INTERIM COURT REPORTING
29
1 Schumann
2 MR. GOLD: Do you understand the
3 question?
4 THE WITNESS: I understand part of
5 the question.
6 MR. GOLD: Let's have the question
7 read back.
8 Actually, I am going to object
9 to the form of this. Do you want to
10 restate it?
11 MR. GARBUS: Mr. Gold, will you
12 produce those logs?
13 MR. GOLD: Which logs?
14 RQ MR. GARBUS: The logs that your
15 witness just referred to. Namely, he
16 referred in his Exhibit, Exhibit B of his
17 affidavit, to photostatic copies of
18 documents entitled "Linux DVD Re: Linux DVD
19 posting."
20 As I understand it, he had logs
21 of the Linux DVD postings. I am asking
22 him to produce those logs.
23 MR. GOLD: I object to the form of
24 the question and I don't -- I think you
25 are misrepresenting the witness'
INTERIM COURT REPORTING
30
1 Schumann
2 testimony also.
3 By misrepresenting it, I just
4 mean that your question doesn't conform
5 to the prior testimony. I'm not yet
6 suggesting a willful act.
7 MR. GARBUS: Please mark this as
8 Defendants' 1.
9 (Defendants' Exhibit 1, Mr. Robert
10 W. Schumann's Declaration, dated January
11 19, 2000, marked for identification, as of
12 this date.)
13 BY MR. GARBUS:
14 Q. Mr. Schumann, I hand you what has
15 been marked as Defendants' Exhibit 1, your
16 affidavit dated January 19, 2000, along with a copy
17 of the exhibits that were submitted with the
18 affidavit, and I direct your attention to Exhibit B
19 of the affidavit, which is referred to at Paragraph
20 11 of your affidavit.
21 I ask you, when did you first see
22 these documents?
23 A. These documents?
24 Q. Yes.
25 A. I would have first seen them in
INTERIM COURT REPORTING
31
1 Schumann
2 October or November.
3 Q. At 11 of your affidavit on Page 4
4 you say, "I attached as Exhibits B and C true
5 copies of pertinent pages from relevant internet
6 groups."
7 How did you decide which pages were
8 pertinent and which pages were not pertinent? What
9 were you looking for?
10 A. I was looking for pages that were
11 pertinent to the text of my affidavit.
12 Q. In other words, you were looking for
13 pages that indicated that there was some usage by
14 people who posted on that particular website of
15 DeCSS to get into a DVD?
16 A. I don't believe that that was the
17 particular purpose of those selections.
18 Q. What was the purpose of those
19 selections?
20 A. To define and illustrate the text of
21 the affidavit.
22 Q. You say, "that were downloaded from
23 the internet and examined by me and certain of my
24 colleagues under my supervision."
25 Who were those other colleagues?
INTERIM COURT REPORTING
32
1 Schumann
2 A. Would have been Richard Whittemore.
3 Q. Do you have training in
4 cryptography?
5 A. Not in cryptography per se, no.
6 Q. Did you ever take any courses in
7 cryptography?
8 A. Not particular to cryptography, no.
9 Q. Have you ever taught at any
10 university?
11 A. I have not.
12 Q. Have you ever written any articles
13 that have been published in academic journals?
14 A. I have not.
15 Q. Have you written any articles that
16 have been published anywhere?
17 A. I have not.
18 Q. Have you ever been invited to speak
19 at any university on any matter?
20 A. I have not.
21 Q. Have you ever heard of the name
22 Mr. Stevenson before you first read his affidavit?
23 A. Frank Stevenson?
24 Q. Yes.
25 A. Yes, I had.
INTERIM COURT REPORTING
33
1 Schumann
2 Q. In what context?
3 A. My review of looking through the
4 Linux development logs.
5 Q. Tell me what you saw there.
6 A. He published a paper that reviewed
7 CSS.
8 Q. Did you take down a copy of that
9 when you did your exercise in downloading relevant
10 documents from Linux DVD?
11 A. Did I download his paper?
12 Q. Yes.
13 A. Yes, I downloaded his paper.
14 Q. What else did you download from that
15 that you did not include in that affidavit?
16 A. I downloaded a -- I didn't download.
17 There is a large amount of Linux DVD development, I
18 guess, history that you looked through.
19 Q. You chose not to put that into your
20 affidavit?
21 A. It is three inches of paper.
22 RQ MR. GARBUS: I ask that that be
23 produced.
24 MR. GOLD: I will take it under
25 advisement.
INTERIM COURT REPORTING
34
1 Schumann
2 Q. Can you remember what other
3 documents you downloaded? You saw Mr. Stevenson's
4 information. Did you see any information from
5 Mr. Pavlovich?
6 A. Yes. He was a frequent contributor.
7 Q. Do you know anything about his
8 background?
9 A. Only what I referenced earlier.
10 Q. Had you heard of him prior to your
11 looking at these Linux postings?
12 A. No.
13 Q. Do you know Chris DiBona?
14 A. No.
15 Q. Had you ever heard of him prior to
16 your involvement in this case?
17 A. No.
18 Q. As Exhibit C to your affidavit, you
19 have some documents which are entitled "Livid-DEV."
20 You have distinguished that from Exhibit B. Can
21 you tell me what the difference is?
22 MR. GOLD: I don't know what you
23 mean by distinguished. You mean that
24 this is not in Exhibit B? Is that what
25 you mean.
INTERIM COURT REPORTING
35
1 Schumann
2 MR. GARBUS: Yes. He made a
3 distinction between Exhibit B and Exhibit
4 C.
5 Q. What is the distinction? Why are
6 documents put behind a certain set of exhibits and
7 the other documents put behind a different set of
8 exhibits? What is the distinction? If you
9 understand it.
10 MR. GOLD: I object to the form of
11 the question, but I believe that what
12 Marty is asking is: Do you know why the
13 pieces of paper in Exhibit C weren't put
14 in Exhibit B? I think that's his
15 question.
16 Is that right?
17 MR. GARBUS: Yes.
18 Q. Do they come from a different source
19 or do they come from the same source?
20 A. Well, in reviewing them and not -- I
21 would have to look in detail. I mean I don't
22 recall a specific reason that I broke them up as I
23 did, but they appear -- the primary parts of B
24 appear to come from a group called Linux DVD and
25 the bulk of what is in C appears to come from a
INTERIM COURT REPORTING
36
1 Schumann
2 different development group. Namely, Livid-DEV.
3 Q. With respect to Livid-DEV, did you
4 also download other documents than these two pages
5 that you have annexed hereto as Exhibit B?
6 MR. GOLD: You mean that same day
7 did he download any other --
8 MR. GARBUS: That same day or any
9 other day.
10 MR. GOLD: Relating to what?
11 MR. GARBUS: Relating to his
12 investigation into how DeCSS was being
13 used.
14 A. I did not download any other
15 information from Linux-DVD.
16 Q. Only those --
17 A. But I reviewed many other pages of
18 the Livid-DEV development --
19 Q. How many pages?
20 A. -- groups.
21 Q. How many pages, to the best of your
22 recollection?
23 A. I'm sorry. My earlier answer, the 2
24 to 3 inches of paper includes both.
25 Q. In other words, everything that you
INTERIM COURT REPORTING
37
1 Schumann
2 reviewed you printed out?
3 A. That's correct. I reviewed a
4 printout.
5 Q. So that you did not see anything
6 other than what was in that 3 and a half inches of
7 papers relating to either the Livid Development
8 Group or the Linux DVD group?
9 MR. GOLD: I object to the form.
10 A. I may have looked occasionally at
11 some references, but nothing of major significance.
12 Q. We are saying this was done at
13 sometime in November or December in your office in
14 Virginia?
15 A. Late November, early December, yes.
16 Q. Since then, have you looked at
17 either of these sites?
18 MR. GOLD: I object to the
19 question on the grounds of
20 attorney-client privilege and work
21 product privilege.
22 A. (No response.)
23 Q. From the time you first saw it until
24 January 14th, the date this lawsuit was instituted,
25 did you look at either of those sites again?
INTERIM COURT REPORTING
38
1 Schumann
2 A. Not to my recollection.
3 RL Q. To your recollection, have you
4 looked at those sites since January 14th?
5 DI MR. GOLD: Same objection I made
6 before.
7 A. (No response.)
8 MR. GARBUS: So it is your
9 position that all the questions I would
10 have after January 14th of this witness
11 are subject to the attorney-client
12 privilege?
13 MR. GOLD: I don't know. I don't
14 think I could answer that question now.
15 I don't know what you are going to ask.
16 BY MR. GARBUS:
17 Q. After you downloaded all this
18 information in November or December of 1999, the
19 Linux postings, what did you do with it?
20 MR. GOLD: I am going to object to
21 that, but maybe first you want to break
22 that up as to time.
23 MR. GARBUS: He is saying November
24 or December.
25 MR. GOLD: Oh, in November and
INTERIM COURT REPORTING
39
1 Schumann
2 December?
3 MR. GARBUS: Yes.
4 MR. GOLD: Read me the last
5 question back, please.
6 (Record read.)
7 MR. GOLD: That means what did you
8 do with it in November or December. I
9 think that's what he is saying. In those
10 two months.
11 A. After I -- or as I reviewed the
12 downloaded materials, after I finished reviewing
13 them, I did nothing with the downloaded materials.
14 Q. Did you download the materials the
15 same day that you downloaded the DeCSS?
16 A. No.
17 Q. What was the difference in time, if
18 you remember, between the time you downloaded the
19 DeCSS and you downloaded the materials?
20 A. It was infinite.
21 Q. Did you do it the same day?
22 A. No.
23 Q. Which did you do first, to the best
24 of your recollection?
25 A. I'm sorry. I did not download the
INTERIM COURT REPORTING
40
1 Schumann
2 materials I reviewed that is attached here. I did
3 not do the downloading. I reviewed downloaded
4 materials, which is what I said in my affidavits,
5 but I did not, myself, download these materials.
6 Q. Your colleagues did?
7 A. They did not.
8 Q. Who did?
9 A. My client did.
10 Q. Which client?
11 A. That would have been MPAA.
12 RL Q. The client asked you to download the
13 materials when?
14 DI MR. GOLD: I am going to object to
15 the question as work product and
16 attorney-client privilege.
17 RL Q. Did you review the materials that
18 the MPAA asked you to review after or before you
19 first learned of the existence of DeCSS?
20 MR. GOLD: Same objection. If you
21 want to limit it to before the lawsuit, I
22 guess you can.
23 MR. GARBUS: He is talking
24 about --
25 MR. GOLD: Your question wasn't
INTERIM COURT REPORTING
41
1 Schumann
2 related to before the lawsuit.
3 Q. Did you at any time prior to the
4 lawsuit review the documents that are referred to
5 in Exhibits B and C?
6 A. Yes.
7 Q. When did you review those?
8 A. Late November, early December.
9 Q. Do you remember whether or not you
10 reviewed those documents before or after you first
11 learned of the existence of DeCSS?
12 A. Probably prior.
13 Q. When you say your client MPAA, how
14 long have they been your client?
15 A. I was hired by them to perform this
16 review.
17 Q. When was that?
18 A. Late November.
19 Q. Prior to that, had you ever been
20 involved with the MPAA?
21 A. Not directly, no.
22 Q. Are you now a consultant for them on
23 this particular job?
24 A. I was a consultant for them on --
25 for that review.
INTERIM COURT REPORTING
42
1 Schumann
2 Q. Are you doing any other work for
3 them?
4 A. Not at this time.
5 Q. Directing your attention to
6 Paragraph 2, the first sentence of your affidavit,
7 it says, and you can read the sentence, "The DeCSS
8 utility serves one function only. To decrypt CSS
9 protected cipher text, including that embodied in
10 the DVD disk containing plaintiffs' motion pictures
11 and to copy and store the resulting unencrypted
12 audio-visual data in one or more computer files."
13 Is that an accurate statement?
14 A. To the best of my knowledge, yes.
15 Q. Does the DeCSS serve any other
16 function?
17 A. The DeCSS utility?
18 Q. Yes.
19 A. No.
20 Q. Can you, through the DeCSS utility
21 ultimately play the DVD or is its only function to
22 copy and store?
23 A. Its only function is to copy and
24 store.
25 Q. Have you had any conversations with
INTERIM COURT REPORTING
43
1 Schumann
2 Mr. Valenti?
3 A. I have not. I presume you mean
4 Mr. Valenti of the MPAA.
5 Q. Yes.
6 A. No, I have not.
7 Q. Have you ever been retained by
8 Columbia Pictures, Disney Enterprises,
9 Metro-Goldwyn-Mayer, or Universal City Studios to
10 do any work on their behalf?
11 A. No.
12 Q. Do you know any of the employees of
13 those companies?
14 A. I do.
15 Q. Do you know, have any of the
16 employees of those companies ever told you that
17 they have ever watched a DVD that has been
18 decrypted with DeCSS?
19 A. Have they ever watched a DVD that
20 has been decrypted with DeCSS?
21 Q. Yes.
22 A. No.
23 Q. When you say you have spoken to
24 people at those companies, who is it that you have
25 spoken to at each of the companies? For example,
INTERIM COURT REPORTING
44
1 Schumann
2 Universal.
3 MR. GOLD: If it was after January
4 of 00, don't answer. If it was before,
5 don't answer.
6 A. I assume my business -- confidential
7 information is covered under the confidentiality
8 clause, the earlier confidentiality issue.
9 Q. You have a lawyer there.
10 MR. GOLD: We are going to take
11 two minutes.
12 MR. GARBUS: Is there an open
13 question.
14 MR. GOLD: Please read back the
15 question.
16 (Record read.)
17 MR. GOLD: Off the record.
18 (Discussion off the record.)
19 MR. GARBUS: Merely the name of
20 the person.
21 MR. GOLD: The name of the person
22 and what they talked about would have to
23 be kept confidential.
24 MR. GARBUS: Let's start first off
25 with the name of the person.
INTERIM COURT REPORTING
45
1 Schumann
2 MR. GOLD: I'm saying that the
3 name of the person would have to be kept
4 confidential, as well as the subject
5 matter.
6 MR. GARBUS: We would have to get
7 a ruling. All I am asking now, if you
8 are saying the names of any of the people
9 that he spoke to prior to January 14th
10 are to be kept confidential, then we
11 should get a ruling on it so that --
12 MR. GOLD: Let me take it another
13 way. Would you restate your question to
14 cover the issues related to this lawsuit?
15 MR. GARBUS: Surely.
16 MR. GOLD: If you do that, then he
17 can answer.
18 BY MR. GARBUS:
19 Q. Can you tell me who prior to
20 January 14th you spoke to at Universal relating to
21 the issues relevant to this lawsuit?
22 A. No one.
23 Q. You can't tell me? You don't
24 remember?
25 A. I mean --
INTERIM COURT REPORTING
46
1 Schumann
2 MR. GOLD: He said no one. You
3 asked him who has he spoke to about the
4 issues in this lawsuit. He said nobody.
5 Nobody at that studio.
6 Q. Would your answer be the same with
7 respect to the other studios?
8 MR. GOLD: Except for Time Warner.
9 Q. Namely, that everything I asked you,
10 except for Time Warner, for our deposition, take
11 Time Warner out of it as if they were not here.
12 Don't tell me anything about Time Warner or anybody
13 you ever spoke to there.
14 A. To any material degree, nobody.
15 Q. To your knowledge, prior to
16 January 14th, did you know whether or not each of
17 these studios maintained information on whether or
18 not DeCSS was used to watch any DVDs that they had
19 manufactured, distributed, or been in any way
20 involved in?
21 A. Do I have any knowledge of that?
22 Q. Yes.
23 A. I have no knowledge either way.
24 Q. Do you have any knowledge of the
25 record keeping at any of the plaintiffs? Do you
INTERIM COURT REPORTING
47
1 Schumann
2 know what I mean by "the plaintiffs"?
3 A. Yes.
4 Q. Everybody except for Time Warner,
5 relating to DeCSS or its application.
6 A. I have no knowledge.
7 Q. Do you know whether after
8 January 14th, do you have any knowledge whether or
9 not any of the plaintiffs, other than Time Warner,
10 maintain any records concerning the use of DeCSS?
11 A. I have no knowledge.
12 Q. Do you have any knowledge of who the
13 person is, if anyone, at each of the plaintiffs,
14 other than Time Warner, who is in charge of
15 securing information about the use of DeCSS?
16 A. I have no knowledge.
17 Q. Do you have any knowledge since
18 January 14th whether any of the plaintiffs, other
19 than Time Warner, maintain any records on DeCSS?
20 A. I have no knowledge.
21 Q. Have you ever been told by anybody
22 from the MPAA that since January 14th any one of
23 them has seen a movie, a DVD that has been
24 decrypted --
25 MR. GOLD: Objection.
INTERIM COURT REPORTING
48
1 Schumann
2 Q. -- by DeCSS?
3 MR. GOLD: Objection as to work
4 product and attorney-client privilege.
5 Q. By the way, are you a lawyer,
6 Mr. Schumann?
7 A. I am not.
8 Q. Who have you had conversations with
9 at the MPAA since November or December of 1999?
10 MR. GOLD: Do you have a cut-off
11 date on that question?
12 MR. GARBUS: Let's use
13 January 14th as the cut-off date.
14 A. Mark Litvack.
15 Q. That's the attorney sitting in this
16 room today?
17 A. Yes.
18 Q. Is he the sole person you spoke to
19 at the MPAA from November or December until
20 January 14th?
21 A. I was on a phone call with one other
22 gentleman, a conference call, and Mark, but I don't
23 recall the name of that other gentleman.
24 Q. Was the other gentleman a lawyer?
25 A. He may have been, but I don't know.
INTERIM COURT REPORTING
49
1 Schumann
2 Q. Was he an MPAA employee?
3 A. To my knowledge, yes.
4 Q. Since January 14th, have you made
5 any investigation on your own to determine whether
6 or not DeCSS was being used to decrypt DVDs?
7 MR. GOLD: Just answer "yes" or
8 "no."
9 A. No.
10 Q. Pardon me?
11 A. On my own?
12 Q. Yes.
13 A. No.
14 Q. Has your company?
15 A. No.
16 Q. Do you know if any other company
17 has?
18 MR. GOLD: I think he means did
19 you obtain knowledge prior to
20 January 14th that any company did.
21 A. What is the current question?
22 MR. GARBUS: Read it back.
23 (Record read.)
24 Q. -- been retained by the MPAA to
25 determine if DeCSS is being used to allow people to
INTERIM COURT REPORTING
50
1 Schumann
2 see DVDs?
3 A. I have no knowledge.
4 Q. Have you ever seen any reports from
5 any other company indicating that the MPAA has
6 retained any company or individuals to determine if
7 DeCSS is being used to watch DVDs?
8 A. I have not seen any reports.
9 MR. GOLD: Before you ask another
10 question, I have to take a short break.
11 (Recess taken.)
12 BY MR. GARBUS:
13 Q. Are you presently employed by the
14 MPAA on this project?
15 A. No.
16 Q. When did your employment with the
17 MPAA end?
18 A. The end of the project would have
19 been in December.
20 Q. So you have not been employed by the
21 MPAA this year at all?
22 A. Cinea, my company, all the contracts
23 were with my company. Not with me personally.
24 Q. Have you ever been employed by any
25 of the plaintiffs in this lawsuit, at any time?
INTERIM COURT REPORTING
51
1 Schumann
2 A. I have not.
3 Q. The conversations that you had --
4 MR. GOLD: Before you ask a
5 question, off the record.
6 (Discussion off the record.)
7 Q. The conversations that you had, did
8 they indicate that you would be paid for your
9 testimony here today?
10 MR. GOLD: Conversations he had
11 with who?
12 MR. GARBUS: With anybody at the
13 MPAA.
14 A. Not with anyone at the MPAA, no.
15 Q. With who?
16 MR. GOLD: Objection to the form
17 of the question.
18 Q. Did anybody tell you you were going
19 to be paid for coming here to testify today?
20 A. Yes.
21 Q. Is that the Proskauer law firm?
22 A. Yes.
23 Q. Were you paid also for preparing the
24 affidavits or taking the time to do the affidavits?
25 A. I was reimbursed for my time, yes.
INTERIM COURT REPORTING
52
1 Schumann
2 Q. You said you reviewed the documents
3 which are Exhibits B and C, amongst others, and you
4 were asked to review those by the MPAA; is that
5 correct?
6 A. That's correct.
7 Q. Did you then furnish them with a
8 report?
9 A. I did.
10 Q. When did you furnish them with that
11 report?
12 A. It would have been, I guess,
13 mid-December.
14 Q. How many pages is that report?
15 A. I don't remember the exact amount.
16 Fifty to one hundred pages.
17 RQ MR. GARBUS: May I have a copy of
18 that report, Mr. Gold?
19 MR. GOLD: I will take that under
20 advisement. I think that is work product
21 privilege.
22 Q. Have you ever been retained by
23 Proskauer, the law firm?
24 A. Can you --
25 Q. Is there a letter of agreement or
INTERIM COURT REPORTING
53
1 Schumann
2 any understanding between you and Proskauer that
3 you are going to do any work for Proskauer?
4 MR. GOLD: You are asking if there
5 is a letter or oral agreement?
6 MR. GARBUS: Yes.
7 Q. Related to?
8 A. Related to this case?
9 Q. Yes.
10 A. Yes.
11 Q. Is it an oral agreement or a written
12 retainer?
13 A. There is an oral agreement.
14 Q. When were you retained by Proskauer?
15 A. I don't remember if it was late
16 December or early January. I think it was early
17 January.
18 Q. Were you retained by Proskauer after
19 your relationship with the MPAA ended?
20 A. I was.
21 Q. Were you retained by Proskauer to
22 specifically help them out on this project?
23 Namely --
24 A. I was, yes.
25 Q. Have you ever done any other work
INTERIM COURT REPORTING
54
1 Schumann
2 for Proskauer?
3 A. Yes, I have.
4 Q. When was that?
5 A. The last three weeks, I guess.
6 Q. On a different matter?
7 A. On a different matter, that's
8 correct.
9 Q. The DVD/CCA matter or something
10 entirely different?
11 A. Something entirely different.
12 Q. With respect to the MPAA, after
13 January 14th, did you have any conversations with
14 them concerning this matter?
15 MR. GOLD: Yes or no?
16 A. Any material conversations?
17 Q. Any conversations, after
18 January 14th.
19 A. Yes.
20 Q. With whom?
21 A. Would have been with Mark Litvack.
22 Q. Did you also have conversations with
23 the MPAA after January 14th with respect to helping
24 them or being retained by them in another matter?
25 A. No.
INTERIM COURT REPORTING
55
1 Schumann
2 Q. Have you ever previously testified
3 for either the MPAA or Proskauer?
4 A. I have not.
5 Q. Have you ever been deposed before?
6 A. I have not.
7 Q. The report that you originally
8 furnished to the MPAA, did a copy of that go to
9 Proskauer?
10 A. I have no knowledge.
11 Q. You just sent it on to the MPAA?
12 A. That's correct.
13 Q. Who did you send it on to?
14 A. Mark Litvack.
15 Q. Is there any other correspondence
16 exchanged between you and the MPAA prior to the
17 time that they ended their employment of you? By
18 "you," of course, I am referring to you and your
19 company.
20 MR. GOLD: I am going to object to
21 that. It misstates the witness' prior
22 testimony.
23 MR. GARBUS: Can I have the
24 question read again.
25 (Record read.)
INTERIM COURT REPORTING
56
1 Schumann
2 BY MR. GARBUS:
3 Q. Did you ever exchange any
4 correspondence, other than this report, with the
5 MPAA during the course of your employment with
6 them?
7 A. Yes.
8 Q. Did they send letters back to you?
9 A. Not that I recall. They did send a
10 check, though.
11 Q. Do you have copies of any of the
12 letters you sent to them today with you?
13 A. Not with me, no.
14 Q. How much such letters were there?
15 A. I believe there was only one.
16 Q. Was that the letter just enclosing
17 the report?
18 A. And a separate one that enclosed the
19 invoice.
20 Q. In addition to physical letters, is
21 there any e-mail correspondence between you and the
22 MPAA, in November, December, and January?
23 A. No.
24 MR. GARBUS: For the purposes of
25 this deposition, any time I say
INTERIM COURT REPORTING
57
1 Schumann
2 "letters," it will include e-mails, as
3 well.
4 MR. GOLD: It would probably be
5 better if you use all the words. It's
6 not that hard.
7 Q. Did you send to the MPAA any of the
8 logs that you had concerning DeCSS?
9 MR. GOLD: Yes or no?
10 A. Did I send to the MPAA any of the
11 logs?
12 Q. Yes.
13 A. No.
14 Q. Did you download any materials in
15 addition to that which was sent to you by the MPAA
16 from either of these websites prior to
17 January 14th?
18 A. How do you describe "download"?
19 Q. Take it off the machine and print
20 it.
21 A. I may have.
22 Q. Would that be back in your office?
23 A. It's possible, but I probably would
24 have thrown it away at the time.
25 Q. Do you have a file in your office on
INTERIM COURT REPORTING
58
1 Schumann
2 this matter concerning the terms of your employment
3 with the MPAA?
4 MR. GOLD: Which is this matter?
5 You mean the one in 1999 or -- is that
6 the one you are talking about?
7 MR. GARBUS: No.
8 Q. November and December you were
9 employed with the MPAA. Do you have a file of that
10 in your office?
11 A. I have a file of that matter. Not
12 relating to the agreement.
13 RL Q. What else is there in the file,
14 other than the documents you have previously
15 mentioned?
16 DI MR. GOLD: I am going to object to
17 that. Attorney-client privilege.
18 MR. GARBUS: We are talking about
19 now when he was working for the MPAA,
20 November and December.
21 MR. GOLD: Of 1999.
22 MR. GARBUS: Yes.
23 Q. You have a separate file maintained
24 in your office after you were retained by
25 Proskauer?
INTERIM COURT REPORTING
59
1 Schumann
2 A. I do have a separate file for that,
3 yes.
4 MR. GARBUS: It occurs to me,
5 Mr. Gold, that you just might have an
6 objection if I ask for that file.
7 MR. GOLD: I think I would.
8 Although you might have been so amazingly
9 clever I wouldn't have recognized it. I
10 gave him a compliment and I think it
11 deserves to be on the record.
12 BY MR. GARBUS:
13 Q. How many people work with Cinea?
14 A. There are currently two.
15 Q. It is you and?
16 A. A gentleman, David Degrooth, an
17 employee of mine.
18 Q. What is his background?
19 A. He is an engineer.
20 Q. How long has that company been in
21 existence?
22 A. Since June of 1999.
23 Q. You mentioned before that you had a
24 colleague involved with you when you reviewed the
25 downloaded material. Do you recall?
INTERIM COURT REPORTING
60
1 Schumann
2 A. Yes.
3 Q. Did that colleague then work for the
4 company?
5 A. Yes. He is one of my partners.
6 Q. Is he still a partner in the
7 company?
8 A. He is still a minority partner, yes.
9 Q. Does he still work with the company?
10 A. No.
11 Q. Did he then work for the company?
12 A. Yes.
13 Q. What is his background?
14 A. He is an IT professional.
15 Q. What does that mean?
16 A. He has a software background.
17 Q. Are any of the three of you
18 cryptographers?
19 A. No, we are not.
20 Q. Do any of the three of you have a
21 degree in cryptography?
22 A. We do not.
23 Q. What is your minority partner's
24 education?
25 A. I believe he has a master's in
INTERIM COURT REPORTING
61
1 Schumann
2 business administration.
3 Q. And his bachelor's is in?
4 A. I think it is in computer science,
5 but I don't know.
6 Q. Prior to the time that you sent the
7 report to the MPAA, did you do a draft of the
8 report?
9 A. I'm sure I would have done an
10 internal draft.
11 Q. Do you have copies of that internal
12 draft?
13 A. I doubt it. I typically remove
14 earlier drafts.
15 Q. Wouldn't it be on your computer?
16 A. It might be, but I tend to clean up,
17 sometimes.
18 Q. With respect to the report that the
19 MPAA got from you, had they seen a draft of the
20 report prior to the time you gave them the final
21 report?
22 A. No.
23 Q. Had you had any discussions with
24 anyone at the MPAA, including Mr. Litvack, about
25 the nature of the report prior to the time they saw
INTERIM COURT REPORTING
62
1 Schumann
2 it?
3 MR. GOLD: Yes or no?
4 A. Yes.
5 Q. With who was that conversation?
6 A. Mr. Litvack.
7 Q. When was that conversation?
8 A. It would have been, I think, early
9 December.
10 Q. What did Mr. Litvack say to you?
11 A. I don't remember the exact nature,
12 but let me clarify my previous answer. Okay?
13 Q. Go ahead.
14 A. I believe -- I have to check my
15 records. I believe we did an interim report to the
16 MPAA, a short interim report, and this conversation
17 would have been around that interim report.
18 Q. The interim report was a written
19 report?
20 A. I believe it was.
21 Q. In addition to the interim report
22 and the final report, were there any oral reports?
23 A. There were, I believe, several phone
24 conversations, but I don't particularly remember
25 any, I guess, meaningful revelations in those that
INTERIM COURT REPORTING
63
1 Schumann
2 were not in the written reports.
3 Q. All those conversations were with
4 Mr. Litvack?
5 A. That's correct. Prior to the
6 report.
7 Q. Did you make memos of any of those
8 conversations?
9 A. I certainly didn't make any memos.
10 I may have made a report -- not a report. Some
11 notes.
12 Q. When for the first time did you
13 learn that Proskauer were the lawyers for the MPAA
14 or any of the movie studios?
15 A. It would have been when I was
16 retained by them in late December or early January.
17 Q. Since you have been retained by
18 them, have you spoken to any other third parties to
19 see if DeCSS has been used to decrypt DVDs?
20 MR. GOLD: I think that by "third
21 parties" Marty means people not at any of
22 the plaintiffs and not at MPAA, and not
23 at Proskauer.
24 A. Is that true?
25 MR. GOLD: Is that true?
INTERIM COURT REPORTING
64
1 Schumann
2 MR. GARBUS: Yes.
3 A. Have I been retained by them? Is
4 that your question?
5 MR. GOLD: No. He asked, have you
6 spoken with such third parties.
7 You are talking about matters
8 relevant to this lawsuit?
9 MR. GARBUS: Yes.
10 A. Not to any material respect, no.
11 Q. Have you made any investigation,
12 since you have been retained by Proskauer, to
13 determine if DeCSS is being used by anyone to
14 decrypt DVDs?
15 A. You mean am I going out looking for
16 information?
17 Q. Yes.
18 A. No, but I have seen press reports
19 that it is being done.
20 Q. Which press reports are you
21 referring to?
22 A. I believe there is a Toronto Star
23 article where a reporter describes essentially
24 exactly how to do what DeCSS -- what is described
25 by the plaintiffs.
INTERIM COURT REPORTING
65
1 Schumann
2 Q. What is the date of that article?
3 A. It was recent. Within, I guess, the
4 last two weeks.
5 Q. Do you have a copy of it?
6 A. I believe I do in my files.
7 Q. Can you give it to me?
8 MR. GOLD: Yes. You can probably
9 get it from the system, I guess.
10 Q. Other than the Toronto article,
11 since the day you were retained by Proskauer, have
12 you learned whether anyone is using DeCSS to
13 decrypt DVDs?
14 A. I mean the affidavits, again, speak
15 to it.
16 Q. Other than the affidavits, you have
17 no information? Is there one person named in your
18 affidavit who, to your knowledge, is using --
19 A. In my affidavits?
20 Q. Yes.
21 A. No.
22 Q. The affidavits don't mention
23 anyone -- your last affidavit is dated --
24 A. Not my affidavits. The affidavits
25 provided by yourself.
INTERIM COURT REPORTING
66
1 Schumann
2 Q. So the only information you have,
3 then, about the use of DeCSS with respect to DVDs
4 is the information that you have seen from the
5 affidavits we have submitted?
6 MR. GOLD: I am going to say that
7 that is subject to the attorney-client
8 and work product privileges.
9 A. Now, are you --
10 MR. GOLD: That's it. Wait for
11 the next question.
12 MR. GARBUS: Can I hear the
13 question back?
14 (Record read.)
15 MR. GOLD: If you want to ask him
16 a question other than conversations that
17 would be protected, you can.
18 Q. Other than conversations that you
19 have had with Proskauer or any of their clients,
20 and the reference that you just made to the Toronto
21 Star, have you ever heard of anyone or know the
22 name of anyone who has used DeCSS to download a DVD
23 and watch a DVD?
24 A. I have certainly seen much, I guess,
25 ancillary evidence of it occurring.
INTERIM COURT REPORTING
67
1 Schumann
2 Q. Specific evidence.
3 MR. GOLD: I am going to object to
4 the form of the question.
5 Q. When you say ancillary --
6 MR. GOLD: If you want to ask the
7 witness what evidence he has seen, ask
8 him that.
9 Q. What ancillary evidence have you
10 seen?
11 A. A variety of websites that describe
12 copy and share your movies.
13 Q. Do you know if anyone has acted on
14 those websites, what is said in the websites,
15 mainly copy and share your movies?
16 A. I have no personal knowledge.
17 RL Q. As of today, you have no personal
18 knowledge of whether or not anyone has ever shared
19 a movie by using DeCSS to decrypt a DVD? All you
20 know is that the websites tell people to do it?
21 DI MR. GOLD: The witness' answers
22 stand for themselves.
23 Q. Is that right?
24 MR. GOLD: I have already taken
25 objection to a part of this question, so
INTERIM COURT REPORTING
68
1 Schumann
2 I am going to object to this question,
3 but you have all of the information at
4 the time that you ask direct questions.
5 Q. Have you ever seen a movie that had
6 been on DVD on the internet?
7 A. Have I ever seen a movie that had
8 been on DVD on the internet?
9 Q. Yes.
10 MR. GOLD: By "seen," I think he
11 means watched. Is that what you mean?
12 MR. GARBUS: Yes.
13 A. Have I ever watched one off the
14 internet?
15 Q. Yes.
16 A. No.
17 Q. Do you know of anyone who has?
18 A. Yes.
19 Q. Who?
20 A. I know of a cousin of mine.
21 Q. Do you know how it got on the
22 internet?
23 A. I do not.
24 Q. Do you know if it came from DeCSS?
25 A. In that particular case, it almost
INTERIM COURT REPORTING
69
1 Schumann
2 certainly did not come from DeCSS.
3 Q. So you don't know of one situation
4 as you sit here today, to the best of your
5 knowledge, where a movie was ever shown on the
6 internet that originally came from the use of
7 DeCSS; is that right?
8 A. That is correct.
9 Q. Has anyone ever told you that they
10 have ever seen a movie on the internet that came
11 from the use of DeCSS?
12 MR. GOLD: This would be other
13 than conversations with your counsel or
14 with the plaintiffs.
15 A. No.
16 MR. GARBUS: Off the record.
17 (Discussion off the record.)
18 MR. GOLD: Marty and I have just
19 agreed that none of us is going to object
20 to two people taking parts of a
21 deposition when the person taking the
22 majority of it has to leave for whatever
23 important purpose he has.
24 EXAMINATION BY
25 MR. HERNSTADT:
INTERIM COURT REPORTING
70
1 Schumann
2 Q. I am Ed Hernstadt. I will be the
3 lawyer on the other side of the table for the next
4 45 minutes or so.
5 Did you review any documents in
6 preparation for this deposition?
7 A. I did.
8 Q. What did you review?
9 A. I reviewed the affidavits provided
10 by the defendants, as well as my own affidavits.
11 Q. Did you read all of them or just
12 some of them?
13 A. I read most of them.
14 Q. You are currently employed by
15 Proskauer?
16 A. Define "employed."
17 Q. Do you have some kind of an
18 agreement -- is it you or your company?
19 A. My company.
20 Q. Cinea has some kind of agreement
21 with Proskauer to provide your services?
22 A. That's correct.
23 Q. What are the terms of that
24 agreement?
25 A. I am reimbursed for my time.
INTERIM COURT REPORTING
71
1 Schumann
2 Q. On an hourly basis?
3 A. That's correct.
4 Q. You said that you started doing work
5 unrelated to this case for Proskauer. Is that
6 subject to a second agreement?
7 A. Yes, it is.
8 Q. I am only interested in the
9 agreement that has to do with this case.
10 A. Yes.
11 Q. Although, I do want to ask you one
12 question about this new case. Is it a DVD case?
13 A. It is not a DVD case per se, no.
14 Q. Does it implicate copying or piracy?
15 A. It might, yes.
16 Q. When you worked for MPAA, that was
17 also through your company Cinea?
18 A. That's correct.
19 Q. You personally have never had a
20 relationship with the MPAA?
21 A. That is correct.
22 Q. And you never have had a
23 relationship with any of the plaintiffs in this
24 matter?
25 A. Me personally, that's correct.
INTERIM COURT REPORTING
72
1 Schumann
2 Q. And you never have had a
3 relationship with Proskauer?
4 A. That's correct.
5 Q. And Proskauer, are they representing
6 you today, you personally?
7 A. (No response.)
8 Q. That is not a technical question. I
9 mean have you hired the Proskauer firm to be your
10 lawyers for the purposes of being your lawyers?
11 A. Separate from their hiring me as an
12 expert witness?
13 Q. Yes.
14 A. No.
15 Q. Can you tell me the terms of the
16 agreement that exists between Cinea and Proskauer?
17 A. Yes. Cinea is reimbursed at the
18 rate of $325 per hour for my time, plus reasonable
19 expenses.
20 Q. What was Cinea hired to do?
21 A. Cinea was hired to provide factual
22 evidence to the best of our ability.
23 Q. Factual evidence about what?
24 A. About what we were asked questions
25 about.
INTERIM COURT REPORTING
73
1 Schumann
2 Q. Tell me to help me out.
3 A. Effectively, about the two --
4 essentially around the essence of the two
5 affidavits that have been filed under my name or
6 that I have filed, I guess. I don't know what the
7 terminology is. I'm sure there is a legal term. I
8 don't know.
9 Q. Specifically looking at Exhibit A,
10 it's the three items in Paragraph 1 of your
11 Declaration.
12 A. The first Declaration?
13 Q. Yes, the first Declaration.
14 A. Okay. My resume.
15 Q. No. Paragraph 1 of the Declaration.
16 A. I'm sorry. Paragraph 1 of the
17 Declaration. Yes.
18 MR. HERNSTADT: Let's mark this as
19 Defendant's Exhibit 2.
20 (Defendants' Exhibit 2, Supplemental
21 Declaration of Robert Schumann, dated
22 April 3rd, marked for identification, as of
23 this date.)
24 MR. HERNSTADT: This is the
25 Supplemental Declaration of Robert
INTERIM COURT REPORTING
74
1 Schumann
2 Schumann, dated April 3rd.
3 BY MR. HERNSTADT:
4 Q. These are the only two declarations
5 that you have done in this case; is that correct?
6 A. Yes.
7 Q. Turning to Paragraph 1 of the
8 Supplemental Declaration, you list two things. The
9 technical aspects of hyperlinks on the internet and
10 the particular hyperlinks presented on the website
11 of 2600.
12 Taken together, those are the areas
13 that you were hired to provide Proskauer with
14 expert information about; is that correct?
15 A. Yes.
16 MR. GOLD: The document says that.
17 THE WITNESS: Work product.
18 Q. I'm sorry?
19 A. This is the result of the
20 discussions.
21 MR. GOLD: The sentence says:
22 "In this Declaration I focus particularly
23 on the issues of linking on the internet,
24 including --" and he mentions two of a
25 group of issues that he is looking into
INTERIM COURT REPORTING
75
1 Schumann
2 and then, of course, there is the
3 original agreement where he says what he
4 is looking into.
5 MR. HERNSTADT: In the first
6 Declaration?
7 MR. GOLD: In the first
8 Declaration.
9 MR. HERNSTADT: That's what I
10 said.
11 Q. Taken together, the two
12 declarations, the areas laid out in Paragraph 1 of
13 the first Declaration and the second Declaration,
14 does that define the scope of the work that you
15 were hired to perform services?
16 MR. GOLD: You mean define it at
17 the beginning or define it at the end?
18 MR. HERNSTADT: In Paragraph 1 of
19 the first Declaration, there is sub A,
20 sub B, and sub C, which says that this is
21 what in particular he has focused on in
22 that Declaration.
23 In the Supplemental Declaration
24 Paragraph 1, sub A and sub B, he says
25 he is focusing on two particular areas.
INTERIM COURT REPORTING
76
1 Schumann
2 Q. My question is: Are those areas the
3 areas for which you were hired to provide expert
4 fact testimony or expert fact information for
5 Proskauer?
6 A. I was not hired for a particular
7 area, I guess. I mean there was no -- there was no
8 agreement up front that I would testify in these
9 two particular areas to provide information.
10 Q. What I am trying to get at is what
11 were you hired to give them?
12 A. I was hired to provide my
13 professional opinion and expertise in this case.
14 Q. On any aspect of this case or on
15 particular aspects of this case?
16 MR. GOLD: What the witness said
17 was that he was going to deal -- he
18 just -- this is the third or fourth time.
19 MR. HERNSTADT: He is going back
20 and forth.
21 MR. GOLD: No. You are.
22 MR. HERNSTADT: Mr. Gold, --
23 MR. GOLD: I object to the form of
24 the question.
25 MR. HERNSTADT: Go ahead. You can
INTERIM COURT REPORTING
77
1 Schumann
2 answer it.
3 MR. GOLD: Do you remember the
4 question?
5 THE WITNESS: Can you please read
6 back the question?
7 (Record read.)
8 A. I presume they will only ask me
9 questions on particular aspects of this case.
10 Q. What are the particular aspects of
11 the case?
12 A. Two examples are embodied in the
13 Supplement in the Declaration.
14 Q. Can you take a look at the first
15 Declaration, if you would.
16 A. Yes.
17 Q. In 1B you say that you are going to
18 focus on historical developments within the Linux
19 community showing that DeCSS is not a program
20 designed as a part of the development of the Linux
21 compatible DVD player.
22 A. Correct.
23 MR. GOLD: It says that he did
24 focus on it.
25 MR. HERNSTADT: It says what it
INTERIM COURT REPORTING
78
1 Schumann
2 says.
3 MR. GOLD: I know, but you keep on
4 asking -- let me just read it right and I
5 won't say anything.
6 MR. HERNSTADT: Whatever.
7 Q. I take it the basis for the
8 information contained in the Declaration were the
9 logs that were sent to you by the MPAA; is that
10 correct?
11 A. Relative to the historical
12 developments --
13 MR. GOLD: You can ask what you
14 want to ask, but you can't interrupt the
15 witness.
16 MR. HERNSTADT: Please do not
17 interrupt my deposition.
18 MR. GOLD: Not if you are going to
19 interrupt the witness. I am telling you
20 clearly, not if you are going to
21 interrupt the witness. You cannot
22 interrupt the witness.
23 MR. HERNSTADT: Mr. Gold, let me
24 just continue.
25 MR. GOLD: You cannot interrupt
INTERIM COURT REPORTING
79
1 Schumann
2 the witness.
3 MR. HERNSTADT: Read back the
4 question.
5 (Record read.)
6 MR. GOLD: Did you finish your
7 answer?
8 A. Within the Linux community.
9 Q. What did you do with those logs
10 after you sent the MPAA the report that you
11 described earlier to Mr. Garbus?
12 A. I filed them.
13 Q. So you possess those logs still?
14 A. I do.
15 Q. Do you possess all of them? In
16 other words, do you take photocopies of the
17 excerpts from those logs that are attached as
18 Exhibits A and B?
19 A. I did.
20 RQ MR. HERNSTADT: I call for
21 production of the entire logs in your file.
22 MR. GOLD: Taken under advisement.
23 Q. In Paragraph 1C, can you tell me
24 what the basis of -- excuse me.
25 You say in particular you have
INTERIM COURT REPORTING
80
1 Schumann
2 focused on and then going down to C, "Defendants
3 claim that they are proliferating DeCSS as part of
4 a legitimate analysis of how the DeCSS algorithm
5 works."
6 Where do defendants claim what you
7 say they claim in 1C?
8 A. My recollection is that is based on
9 some of the claims in websites posting DeCSS.
10 Q. Which websites?
11 A. I can't remember off the top of my
12 head. I would have to --
13 Q. We only represent Emanuel Goldstein.
14 That's the only defendant I am concerned about.
15 Was it on Emanuel Goldstein's website?
16 A. I believe it was, but I would have
17 to check that website or the records of that
18 website.
19 MR. GOLD: By the way, on the
20 documents you are asking for, it will be
21 faster if you keep a list of them,
22 because we are not going to get this
23 transcript for a while.
24 MR. HERNSTADT: I will give it to
25 you.
INTERIM COURT REPORTING
81
1 Schumann
2 MR. GOLD: We won't wait for the
3 transcript if you give me a list.
4 MR. HERNSTADT: Absolutely. I
5 will send you a letter at the end of the
6 day.
7 MR. GOLD: Good.
8 Q. Do you have printouts of
9 Mr. Goldstein's website?
10 A. I believe I have printouts of some
11 of the pages. I believe they are attached even to
12 this, I presume.
13 Q. And so it is attached as an exhibit
14 to your Declaration?
15 A. I believe -- I mean I would have to
16 look, but I believe --
17 Actually, I take that back. For
18 this Declaration it did not have any website
19 attachments. The Supplemental did.
20 MR. HERNSTADT: I would just call
21 for the production of any documents that
22 contain a claim by any of the defendants,
23 past or current, that they are
24 proliferating DeCSS as part of a
25 legitimate analysis of how the DeCSS
INTERIM COURT REPORTING
82
1 Schumann
2 algorithm worked.
3 MR. GOLD: Are you including
4 affidavits and briefs that defendants
5 have filed?
6 MR. HERNSTADT: By definition,
7 because this Declaration was signed on
8 January 19th, whatever he had was at the
9 time he made this statement.
10 MR. GOLD: You are still on the
11 first?
12 MR. HERNSTADT: Yes. Still on the
13 first.
14 Q. You answered Mr. Garbus' question
15 earlier that the DeCSS served only one function,
16 which was to decrypt CSS protected cipher text and
17 copy and store the encrypted audio-visual data in
18 one or more computer files.
19 I am reading that from Paragraph 2
20 of your Declaration.
21 A. Yes.
22 Q. Does DeCSS also have the function of
23 permitting a consumer who has purchased a DVD to
24 evade the region coding?
25 A. No.
INTERIM COURT REPORTING
83
1 Schumann
2 Q. Does DeCSS permit a consumer who has
3 purchased a DVD to fast-forward through sections of
4 a DVD that the manufacturer has prevented from
5 being fast-forwarded?
6 A. DeCSS itself?
7 Q. That's my question.
8 A. No.
9 Q. Does DeCSS enable someone to use
10 with some other program, like a DVD player, to skip
11 the region code?
12 A. I think it is irrelevant to that
13 problem.
14 Q. You think DeCSS is irrelevant to
15 that problem?
16 A. To the problem of evading region
17 code?
18 Q. Yes.
19 A. Yes.
20 Q. You have reviewed some of the
21 declarations that the defendants have submitted?
22 A. Yes, I have.
23 Q. In a Declaration if there is a
24 statement that says that DeCSS permits you to evade
25 region coding, a region coding limitation, then
INTERIM COURT REPORTING
84
1 Schumann
2 that statement is incorrect?
3 MR. GOLD: I object to the form.
4 Q. You can answer the question.
5 A. In my professional opinion, DeCSS is
6 irrelevant to evading the region coding, in your
7 terminology.
8 Q. Why is that?
9 A. Because region coding is not part of
10 the DeCSS specification.
11 Q. What is CSS? I will be a little
12 more specific. What is in the specification of
13 CSS?
14 A. To my understanding, CSS describes
15 an access control mechanism for the disk, an
16 encryption and decryption mechanism for the disk,
17 and a key management function.
18 Q. What do you base that understanding
19 on?
20 A. My experience in the DVD industry.
21 Q. Can you be more specific? What
22 experience?
23 A. I have six plus years now in --
24 actually, DVD has only been around four years, but
25 I have been working in the field since the
INTERIM COURT REPORTING
85
1 Schumann
2 beginning of DVD and have intimate knowledge of the
3 DVD specs.
4 Q. Have you ever reviewed the CSS
5 source code?
6 A.