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TUCoPS :: Cyber Law :: 0717-t~1.txt

MPAA vs. 2600 - Trial Day 1, July 17, 2000




   1   UNITED STATES DISTRICT COURT
       SOUTHERN DISTRICT OF NEW YORK
   2   ------------------------------x

   3   UNIVERSAL CITY STUDIOS, INC.,
       et al,
   4
                      Plaintiffs,
   5
                  v.                           00 Civ. 277 (LAK)
   6
       SHAWN C. REIMERDES, et al,
   7
                      Defendants.
   8
       ------------------------------x
   9
                                               July 17, 2000
  10                                           9:00 a.m.

  11   Before:

  12                       HON. LEWIS A. KAPLAN,

  13                                           District Judge

  14                            APPEARANCES

  15   PROSKAUER, ROSE, L.L.P.
            Attorneys for Plaintiffs
  16   BY:  LEON P. GOLD
            CHARLES S. SIMS
  17        CARLA MILLER
            WILLIAM M. HART
  18
       FRANKFURT, GARBUS, KLEIN & SELZ
  19        Attorneys for Defendants
       BY:  MARTIN GARBUS
  20        ERNEST HERNSTADT
            DAVID ATLAS
  21

  22

  23

  24

  25




                                                                2



   1            THE CLERK:  Universal versus Reimerdes.  Is the

   2   plaintiff ready?

   3            MR GOLD:  Ready for the plaintiff.

   4            THE CLERK:  Is the defendant ready?

   5            MR. GARBUS:  We are not, we understand we are going

   6   ahead.

   7            THE COURT:  You are going ahead, unless you have some

   8   new reason to tell me that I haven't heard before.

   9            MR. GARBUS:  We have a motion pending and it seems to

  10   me that it would be appropriate until such time that the Court

  11   renders a decision to not go ahead.

  12            THE COURT:  You are going ahead.  I am not rendering

  13   any opinion now, but rather in the course of the morning or

  14   perhaps later in the day.

  15            MR. GARBUS:  May we have an opportunity to go to the

  16   Second Circuit to get a stay?

  17            THE COURT:  You have the opportunity to do whatever

  18   you want, but the trial is now and if you wish to make an

  19   opening statement, I will hear it now.

  20            MR. GARBUS:  Would the Court grant a stay?

  21            THE COURT:  No.

  22            MR. GARBUS:  Then we will immediately go to the

  23   Second Circuit.  I will make an opening statement.

  24            THE COURT:  You are the defendant, Mr. Garbus.  The

  25   plaintiff goes first.




                                                                3



   1            MR. GARBUS:  Thank you very much.

   2            THE COURT:  Mr. Gold, you may proceed.

   3            MR GOLD:  Thank you, your Honor.  Good morning.  My

   4   name is Leon Gold.

   5            MR. GARBUS:  May I just interrupt one moment?

   6            If I understand your ruling, we cannot go to the

   7   Second Circuit until such time that we have a decision?

   8            THE COURT:  You will have it shortly.

   9            Mr. Gold?

  10            MR GOLD:  My name is still Leon Gold.  I'm a partner

  11   at Proskauer Rose and I represent the motion picture studio

  12   plaintiffs.

  13            In 1998, Congress recognized the ease with which

  14   digital copyrighted works such as movies and records could be

  15   copied and distributed worldwide virtually instantaneously via

  16   the Internet subjecting copyright owners to losses of material

  17   portions of the value of their copyrights virtually overnight.

  18            Congress determined that sound copyright economic and

  19   Internet policy dictated that this risk of loss had to be

  20   addressed.  Congress then provided that extra protection over

  21   and above existing copyright laws that were needed for the

  22   works since disastrous harm could occur well before any Court

  23   could act under the copyright laws, well before plaintiffs

  24   could get injunctions for infringement or copyright or for

  25   contributor infringement.




                                                                4



   1            The anticircumvention law was passed as a result.

   2   Defendants and their supporters disagree with Congress'

   3   findings and with the anticircumvention law.  They believe the

   4   interests of a free Internet, of free access to digital copies

   5   of movies, records and books deserve more respect and more

   6   attention than protection of copyrighted artistic work.

   7            They believe in the right to take this work without

   8   any permission, but no one has the right to steal another

   9   person's copyright to steal their intellectual property and

  10   Congress may provide and has provided additional protection

  11   for intellectual property when new technology has

  12   substantially increased the risks of infringement.

  13            We note this is not the appropriate forum for the

  14   expression of defendant's beliefs about effective social,

  15   economic and Internet policy.  Congress has decided and we

  16   respectfully submit the Courts must act promptly to protect

  17   these interests in the manner that Congress intended.  Not to

  18   do so eliminates the purposes, eliminates the existence truly

  19   of the act in question.

  20            In the anticircumvention law Congress provided that

  21   owners of copyright digital materials could protect their work

  22   with technological measures which would prevent unauthorized

  23   access to their copyrighted works.  Congress provided that if

  24   copyright owners protected their works with such measures,

  25   circumvention devices could not be offered or trafficked to




                                                                5



   1   the public and trafficking in such a device was forbidden and

   2   could be enjoined by a Federal Court.

   3            Congress intended that the injury that the Court

   4   would protect against would be the loss of the device

   5   protecting the copyrighted material.  The security afforded by

   6   such protective device is the asset protected by the

   7   anticircumvention law.

   8            Plaintiff's harm is first the loss of that asset

   9   which could create irreparable loss and the threat of

  10   uncontrollable copying.  After all, we will show the studios

  11   were not going to go forward into the digital world with this

  12   new product, DVD, without such protective technology.

  13            Congress did not provide that the Court would not

  14   grant injunctions in the anticircumvention law until actual

  15   infringement, actual copying or contributory infringement took

  16   place.  Had Congress imposed that prerequisite, there would

  17   have been no need for the anticircumvention law in the first

  18   place.

  19            We will briefly show that when digital copyrighted

  20   material -- and I'm referring now to music on CD's -- were

  21   sold without inscription to protect against access to the

  22   artistic work, the record -- the record industry found that

  23   all of its copyrighted work were infringed and that virtually

  24   every copyrighted song in their libraries were all made

  25   available on the Internet via Napster at no cost with millions




                                                                6



   1   and millions of downloads of songs taking place every week.

   2            For months, the record companies have been working

   3   their way to a preliminary injunction hearing which is, in

   4   fact, scheduled for July 26th.  Napster, the operation of the

   5   a center of this activity, is the most frequently visited web

   6   site in the U.S.  However, movie companies with respect to

   7   DVD's were able to take advantage of inscription and the

   8   digital millennium copyright act and are here to protect

   9   against such a result, protect against waking up one morning

  10   and finding out they've been Napsterized and only then seeking

  11   to enjoin the copyright.

  12            Once record companies' songs have been copied and

  13   widely distributed, something that happens right away,

  14   irreparable harm has taken place.  Defendants argue that the

  15   DeCSS does not quite yet provide a threat of copying because

  16   copying is many months to several years away, but even

  17   defendants don't deny that at some point, overwhelming -- the

  18   overwhelming probability of copying and transmission over the

  19   Internet will take place.

  20            The movie companies, however, prefer to rely on DMCA

  21   rather than the assurances of those who make such assertions.

  22   Plaintiffs want to keep their films protected.

  23            The Internet now contains offerings of movies with

  24   good visual and audio quality, something that did not happen

  25   before the advent of DeCSS.  Buyer rated movies played from




                                                                7



   1   decrypted DVD's are also now being sold in hard copies.  It

   2   doesn't take a rocket scientist to understand how this

   3   happened.

   4            Defendants are wrong because decryption of DVD's with

   5   DeCSS and the offering and transmission of the contents on the

   6   Internet has begun, as your Honor will soon see.  It's picking

   7   up steam and it will become an avalanche unless halted by this

   8   Court.

   9            Once a film is decrypted and exchangeable on the Net

  10   for down loading, that film's protection is lost for good.

  11   More powerful transmission lines at increased hard drive

  12   storage capacities are the most rapidly developing area of

  13   current Internet development.  That makes the copy problem a

  14   certainty.  The danger of immense harm is upon plaintiffs.  We

  15   will clearly show in this case our right to an injunction.

  16            We will establish that CSS is a device meant to be

  17   protected under the statute and that trafficking in DeCSS is

  18   unlawful.  The studios will show that CSS is a technological

  19   measure effectively controlling access to copyrighted DVD

  20   movies.

  21            In the ordinary course of its operations, it requires

  22   the application of information or a process or a treatment

  23   with the authority of the copyright owner to gain access to

  24   the work.  The studios will show that DeCSS is a technology, a

  25   device, a component designed for the purpose of circumventing




                                                                8



   1   CSS and placed in a copy -- placing a copy of the DVD movie on

   2   the user's hard drive.  We will show it has no other purpose.

   3   The studios will show that DeCSS has a limited

   4   commercially-significant purpose or use other than to

   5   circumvent.  It has no such commercial purpose other than to

   6   circumvent.

   7            Defendants admit that they've posted DeCSS on their

   8   web site and have linked to other web sites which post DeCSS

   9   and, thus, have offered this device to the public and

  10   trafficked in DeCSS.

  11            As we have set forth in our in limine motions, we

  12   submit respectfully that there aren't any material triable

  13   issues in this case.  The reverse engineering and

  14   encryptographic research exceptions don't apply to our

  15   trafficking claims as a matter of statutory policy and

  16   statutory interpretation and because defendants have admitted

  17   their acts had nothing to do with reverse engineering or

  18   encryptographic research.

  19            Fair use is not a defense to a trafficking claim and,

  20   your Honor, that some few people may make some acceptable use

  21   of DeCSS does not excuse offering it to the world on the

  22   Internet.

  23            Finally, plaintiffs have already suffered great

  24   damage because their protective device has been taken away by

  25   defendant's acts.  Their films are on DVD's are no longer




                                                                9



   1   protected by an anticircumvention device.  Plaintiffs would

   2   not have issued DVD's without a protective encryption system

   3   and the threat of widespread copying is here and the process

   4   has begun.

   5            Your Honor, this case relates to the protection of

   6   artistic works and to the health of the American motion

   7   picture industry.  While the computer and the Internet are

   8   extraordinary developments that have an impact on every person

   9   in the world every day, still the computer and the Internet

  10   are machines and systems with no moral sense and no ability to

  11   choose the ends to which they are put.

  12            Like the old machines and the old system and the old

  13   systems, these new technologies can be used to promote

  14   artistic expression, economic growth and educational

  15   opportunities or they can be used to steal and invade the

  16   rights guaranteed by our Constitution and our laws.

  17            Congress has made some critically important policy

  18   decisions with respect to some of these matters.  The Digital

  19   Millennium Copyright Act is one of those decisions.  As we all

  20   know, laws passed by legislative bodies, Congress' acts can be

  21   rendered meaningless by the absence of prompt enforcement of

  22   Congress' will.  Then chaos will reign and the most important

  23   technological developments of our age will be employed to our

  24   detriment.

  25            We note that there are a large number of brilliant




                                                                10



   1   creative productive people who lead the American technological

   2   revolution.  Their wisdom and counsel are critical to

   3   solutions of some of these problems.  However, their voices

   4   will not be heard in this trial.

   5            A good deal of loud noise, much of it irrelevant and

   6   much of it untrue, has preceded today's events.  Today the

   7   rule of law begins to assert itself.  It's a welcome day.

   8            Your Honor, plaintiffs are ready and anxious to

   9   present their case.

  10            THE COURT:  Thank you, Mr. Gold.

  11            Mr. Garbus?

  12            MR. GARBUS:  Your Honor, it's a great privilege and a

  13   pleasure to be here and to argue and to deal with the issues

  14   that are raised by this statute.  The statute -- this is the

  15   first case interpreting that statute.  This is a statute that

  16   will define the future of American technology in many ways.

  17   In many ways, it will define how the technology and the laws

  18   will encompass each other.

  19            The position that we take, which is very clear is one

  20   of protection, is one of protection of copyright interests and

  21   one of protection of the First Amendment and one of protection

  22   of fair use, a concept that has been with us for a very long

  23   period of time.

  24            (Continued on next page)

  25




                                                                11



   1            MR. GARBUS:  The issue that we are facing I think is

   2   a little more complicated than I think Mr. Gold makes it out

   3   to be.  I think the issue is how do you balance the need for

   4   copyright protection.  After all, the Constitution talks about

   5   the creation of copyright, we recognize that copyright must be

   6   protected so that artists and creators can be reimbursed for

   7   the work that they do, and we recognize that movie studios and

   8   others must also be reimbursed and entitled to make whatever

   9   profit that they can make as a result of the work that they

  10   do.  We also recognize -- and your Honor has seen in this

  11   case, many of the other issues that are involved.  We

  12   recognize that there are certain needs for research, there are

  13   certain needs for technology, there are certain needs for

  14   librarians.  The case is larger than I think Mr. Gold

  15   interprets it, and I think that the facts are different than

  16   the facts that were given to the Court in the first instance.

  17            It turns out that the DeCSS or the cracks of the

  18   codes go back to 1997, and the avalanche that the movie

  19   studios have been talking about have never occurred.  The most

  20   recent experiment that we learned about, and we learned about

  21   it in this case -- and you will hear it from the first witness

  22   that the plaintiff calls, Mr. Michael Shamos -- and what

  23   Mr. Shamos tells you is that after trying to download a DVD,

  24   and then to do this illegal copying, it took him working in

  25   the middle of the night with an assistant some 20 hours to do




                                                                12



   1   it.  And what you will learn is the kind of technology that he

   2   had when he did it.  You will also hear from our experts what

   3   it takes most people in a normal time to do.  This is not the

   4   Napster case.  The fundamental issue here -- and it's a very

   5   complicated one, and we have not had a chance to develop it --

   6   is what is the future of the Internet, to what extent do all

   7   the horrors that Mr. Gold talks about really ever take place.

   8   How fast will things move?  How fast will they move within a

   9   year?  How fast will they move within two years?  How long

  10   will DVDs be around?  How long will there be other encryption

  11   systems.

  12            You will hear that the motion picture industry said

  13   in testimony to Congress back in May out in Stamford that DVD

  14   audio for example, and they raised all the horrors, cannot be

  15   distributed, cannot be shown, is not available, and they have

  16   said that it was withdrawn for a variety of reasons.  We will

  17   show you in court that you can walk out today to Tower and buy

  18   these DVD audios.

  19            There was testimony in the case, and you have seen

  20   the affidavits, about the DVD audios, that they stopped making

  21   the machines.  You can go out to Tower and buy the machines.

  22            So, what you will find I think with respect to each

  23   claim is that it is false, it is easy to say in a case the sky

  24   is going to fall tomorrow.

  25            What happened in the Napster case, the downloading




                                                                13



   1   has not happened here.  What he is talking about is something

   2   that may happen in the future.  If that future happens, then

   3   you have what happens in the Napster case, you go out to the

   4   people who did the file sharing.  I told you at the very

   5   beginning of the trial, and they told you something opposite

   6   than what I said, and you said one of us was speaking baloney.

   7            As of yesterday, they did not have the name of one

   8   single person who had ever used DeCSS to illegally copy a

   9   film.  As of yesterday they did not know of one single

  10   instance of illegal copying of a film.

  11            The MPA has extraordinary resources.  What you will

  12   learn in this case is that early on they learned exactly about

  13   the breaks and they learned exactly about the Linux Group and

  14   the attempt to make a Linux.  Now what happens to the owner of

  15   the DVD, the movie studio that makes the DVD?  The Linux

  16   player, if you take the DVD, the Linux person buys it, he pays

  17   $15, he pays $20, and he puts it in his Linux machine.  And

  18   the owner of the DVD gets paid for that.  The only thing that

  19   that Linux operator may not have is a license.  You are

  20   familiar with the license structure.  We have gone through the

  21   license structure at great length.

  22            You will I think also hear from some of the other

  23   plaintiffs' witnesses today, and you will learn from them that

  24   up until a little while ago not one of them -- this is the MPA

  25   with its vast resources -- had every tried to do this




                                                                14



   1   allegedly illegal act, even though they came into court and

   2   said it was going to happen tomorrow.  Not one of them, with

   3   the vast resources of the MPA, the vast resources of the

   4   motion picture industry, the vast resources of the DVD, can

   5   point to one single case of copying, not one person, not one

   6   single place.

   7            They have chosen as a defendant Mr. Goldstein.  The

   8   reason they have chosen Mr. Goldstein is obvious.  There are

   9   university sites that post DeCSS object and source codes.

  10   There are newspapers, the San Jose Mercury News, the New York

  11   Times, that link the sites.

  12            Disney is a plaintiff in this case.  If you go to

  13   Disney's search engine and you type in DeCSS and make a

  14   search, you will find sites all over the place.  If you go to

  15   Go, which is also Disney's search engine, you will also find

  16   sites, forgetting about Mr. Goldstein, all over the place.

  17            The statute is very clear with respect to the

  18   benefits that a journalist has.  I will shortly before I

  19   finish just answer the question that you placed last week with

  20   respect to where you saw the issues in this case.

  21            Before I do that, I note, and you have noted, that

  22   the academics from the leading universities have come in on

  23   the side of the defendants in this case.  You have briefs

  24   submitted by Professor Samuelson at the very eminent Berkeley

  25   Center, you have affidavits of Professor Nessom at Harvard




                                                                15



   1   University, from Margaret Smith at Harvard University,

   2   Professor Bengler at NYU, and Professor Moglen at Columbia.

   3   So that the issues in this case are far more complex I think

   4   than my friend Mr. Gold concedes.

   5            I recognize that this case is only the very first

   6   small step.  It's a beginning in deciding these issues.  As a

   7   trial court judge the inclination to overrule a law of

   8   Congress because it's bad would be inappropriate.  We are not

   9   saying you should overrule a law because it's a bad law.  I

  10   don't think that's the function of the argument that's being

  11   made here today.  I think that this case will proceed.  It

  12   will go to the Second Circuit, it will go to the United States

  13   Supreme Court.  I think all of us have a very heavy

  14   responsibility to make a record in this case that is adequate

  15   for the kinds of determinations that are going to be made for

  16   a statute of this kind.

  17            At the end of the day DVD, there may or may not be

  18   DVD movies, but there will be at least for a period of time

  19   DVD encryptions on books, DVD encryptions on audio, which is

  20   now out, contrary to what the MPA said.

  21            So, what you are really talking about is does this

  22   new digital technology fundamentally mean the end of fair use.

  23   And that is the issue that is faced.  And when the MPA went to

  24   Congress, they said we have reconciled it.  Betamax is still

  25   the law, there still is fair use.  I won't go through Betamax




                                                                16



   1   with you.  The Court knows it.  I won't go through the Sega

   2   case with you.  The Court knows it.  I won't go through the

   3   Connectix case again because the Court knows it.  I won't go

   4   through the monopoly issues again because the Court knows

   5   them.

   6            Again I think it's a privilege for all of us to be

   7   here and to have a chance to establish a record that many

   8   courts and judges and the public will be looking at in the

   9   years to come.  Thank you.

  10            THE COURT:  Thank you, Mr. Garbus.  Mr. Gold, your

  11   first witness.

  12            MR. GOLD:  Mr. Sims will present our first witness.

  13            MR. SIMS:  Dr. Michael Shamos.

  14            THE COURT:  I am one of the judges who requires one

  15   lawyer for each witness.  The first lawyer who objects on

  16   direct or questions on cross will be the lawyer for that

  17   witness.

  18    MICHAEL I. SHAMOS,

  19        called as a witness by the Plaintiffs,

  20        having been duly sworn, testified as follows:

  21            MR. GARBUS:  I presume with respect to whether a

  22   witness is qualified as an expert or not, given this is a

  23   nonjury trial, you may care to hear that at some other time.

  24   Or would you care to have that at the very beginning.

  25            THE COURT:  I don't need to have it at the very




                                                                17



   1   beginning.  I don't follow the practice of having the witness

   2   tendered.  If there is an objection on the grounds of

   3   expertise, you should make the objection, and if I think I

   4   need to hear argument, I will hear it.  If not, we will

   5   reserve it.

   6            MR. GARBUS:  Mr. Hernstadt was going to make that,

   7   but I was going to cross-examine the witness.  I don't know if

   8   that violates your rule.

   9            THE COURT:  Technically, but I will allow you to do

  10   that.

  11            MR. SIMS:  I think if you stay about an inch or so

  12   further from the microphone, the sounds might be a little

  13   better.

  14            MR. GARBUS:  Does Mr. Hernstadt now make the

  15   objection or --

  16            THE COURT:  I don't even know what the questions are,

  17   so I can't very well rule on the objection.  There will come a

  18   point I suppose when Mr. Sims is going to ask him do you have

  19   an opinion on some subject, and then if one of you, either one

  20   of you wants to make that objections, I will hear whichever

  21   wants to make it.

  22            MR. HERNSTADT:  Your Honor, we are objecting to

  23   presenting any evidence.  If he is being presented as a fact

  24   witness, almost all of the evidence he is going to present is

  25   hearsay.  If he is being presented as an expert, he is




                                                                18



   1   presenting evidence based on the work of his assistant which

   2   in large part he didn't even observe and without a basis for

   3   the expert testimony.

   4            THE COURT:  Let's do this one step at a time, please.

   5            MR. SIMS:  I really had plans to do this the old

   6   school way and present the witness's qualifications.  I think

   7   it will be clear at the right point.

   8   DIRECT EXAMINATION

   9   BY MR. SIMS:

  10   Q.  Dr. Shamos, what is your current occupation?

  11   A.  I am currently employed on the faculty of Carnegie Mellon

  12   University in Pittsburgh, Pennsylvania.  I am director of the

  13   Universal Library and codirector of the Institute of

  14   Electronic Commerce at CMU.  I have a senior faculty position

  15   in the School of Computer Science and the Graduate School of

  16   Industrial Administration, which is CMU's business school.

  17   Q.  What is the Universal Library?

  18   A.  The Universal Library is a project in which we are

  19   attempting to digitize all public domain works and make them

  20   available over the Internet.

  21   Q.  Do you hold any positions with respect to e-commerce?

  22   A.  Yes, as I mentioned I'm codirector of the Institute for

  23   Electronic Commerce.  I'm in charge of the academic program in

  24   electronic commerce from the technology side as opposed to the

  25   business side.




                                                                19



   1   Q.  Describe briefly your educational and employment

   2   backgrounds.

   3   A.  Yes.  I began computer programming while in high school in

   4   1962 and have been programming ever since then.  I went to

   5   Princeton University but was obliged to major in physics

   6   because the field of computer science was not offered as a

   7   major when I started.

   8            I graduated from Princeton in 1968 with a Bachelors

   9   degree in physics.  I immediately began working for IBM

  10   corporation in East Fishkill, New York.  I was a programmer

  11   programming automated test equipment to test integrated

  12   circuits.

  13            During the Vietnam era I was obliged to go into the

  14   Service.  I entered the public health service in 1970, served

  15   at the National Institutes of Health, the Cancer Chemotherapy

  16   National Service Center in Bethesda, Maryland, where I was a

  17   supervisory programmer looking after systems that processed

  18   cancer test data.

  19            In 1972 I went to Yale University to obtain a Ph.D.

  20   in computer science.  Yale had just begun its department.  I

  21   left Yale in 1975 to take a faculty position at Carnegie

  22   Mellon.  I was hired in the computer science and mathematics

  23   departments there from 1975, received my Ph.D. from Yale in

  24   1978 and I --

  25            THE COURT:  What field?




                                                                20



   1            THE WITNESS:  Ph.D. was in computer science.

   2            In 1978 I began to study law.  While I was a faculty

   3   member at CMU I was a law student at night, I went to Duquesne

   4   University in Pittsburgh and obtained a law degree in 1981.

   5            1981 I left the university because I had started a

   6   computer software company.  We were selling the precursor of

   7   desk top publishing software based on some technology that had

   8   been developed at CMU.

   9             From 1981 until 1987 I was the president of two

  10   software companies in Pittsburgh which I sold in 1987, took

  11   what might be referred as a sabbatical for the next three

  12   years, and in 1990 I joined the Webb law firm.  That's

  13   W-E-B-B, a law firm in Pittsburgh, Pennsylvania, which is the

  14   largest intellectual property practice in western PA.  I was

  15   an attorney there rising to partner.

  16            I left the practice of full-time law in 1998 to

  17   return to Carnegie Mellon University to direct the Universal

  18   Library project.  When we began the Institute for Electronic

  19   e-commerce the next year, I was named codirector of that and

  20   have been teaching in it ever since.

  21   Q.  Describe your present teaching activities.

  22   A.  I teach four different courses at Carnegie Mellon.  One is

  23   on intellectual capital.  One is on e-commerce technology,

  24   which is a survey of all the technologies that we believe

  25   pertain to electronic commerce.  I teach a course in




                                                                21



   1   electronic payment systems which are the technologies

   2   surrounding how one pays for things on the Internet, and a

   3   course in Internet law and regulation.

   4   Q.  Do you lecture in these areas as well?

   5   A.  I have a very extensive lecturing schedule largely

   6   organized by Carnegie Mellon University.  In addition to the

   7   four courses I teach, I give approximately 400 outside

   8   lectures per year, mostly to corporations that want to become

   9   educated in the Internet.

  10   Q.  Which major U.S. corporations do you presently lecture for

  11   and where do you do that lecturing?

  12   A.  The major clients for that are Morgan Stanley Dean Witter

  13   where I teach in New York and London.  I'm scheduled to also

  14   teach in Chicago and San Francisco for MacKenzie & Company.  I

  15   have been asked to give Internet training to all 6,000 of

  16   their consultants worldwide, so I have been doing that in a

  17   variety of countries, Austria, France, the UK, United States.

  18   Q.  Are those lectures extended and do they address the issues

  19   including bandwidth file transfer, web architecture,

  20   compression, networking, Internet technology that are at issue

  21   in this case?

  22   A.  They do, because they are fundamental topics in e-commerce

  23   technology.  Basically the outside lecturing I do are very

  24   short and compressed summaries of the courses that I teach at

  25   Carnegie Mellon.




                                                                22



   1   Q.  Can you describe your scholarly output?

   2   A.  Yes.  Of course when I became an assistant professor

   3   originally at Carnegie Mellon University there was the

   4   obligation of publication, so I have something like 18

   5   publications largely in the field of computational geometry

   6   which I invented myself while at Yale University.  Subsequent

   7   to that I was on leave from the university for 17 years during

   8   which I had virtually no scholarly output.

   9            Upon returning to the university and becoming

  10   involved principally in Internet activities, the time lag

  11   between when one writes a paper and when it appears in print

  12   is so long that the Internet has substantially changed by that

  13   time, so the vast bulk of my scholarly output now consists of

  14   maintaining the technology portion of the CMU Institute for

  15   E-Commerce's website which contains freshly updated

  16   information and links to hundreds and hundreds of sites

  17   dealing with e-commerce technology.  And my scholarly output

  18   of course is also the lectures that I give and accompanying

  19   slides.

  20   Q.  Let me show you what has been marked as Plaintiffs'

  21   Exhibit 129 --

  22            MR. HERNSTADT:  May we have a copy, please?

  23            MR. SIMS:  Yes.

  24   Q.  -- and ask you whether this is the declaration you

  25   submitted earlier in this case and with particular reference




                                                                23



   1   now a copy of your CV?

   2   A.  It is my declaration and it is a copy of my CV.

   3   Q.  Is the CV complete and up to date?

   4   A.  The CV is not complete.  It's accurate as far as it goes,

   5   but it's what I refer to as my short résumé.  It concentrates

   6   principally on my major output and major invited talks.  I

   7   haven't listed everything that I have done.

   8   Q.  Have you testified in any court cases?

   9   A.  Yes, I have.

  10   Q.  Which ones that have any reference to computer matters?

  11   A.  I testified I believe approximately on six to eight cases

  12   involving computer matters, and I testified in one case

  13   involving Internet matters.

  14   Q.  What is that?

  15   A.  That was the "I Crave TV" case that was decided earlier

  16   this year, January, February.

  17   Q.  Were you qualified as an expert in that case?

  18   A.  Yes, I was.

  19   Q.  By what court?

  20   A.  That was the Western District of Pennsylvania.

  21   Q.  Do you recall what subject you were qualified as an expert

  22   in?

  23   A.  Yes, it was Internet technology, networking, transmission

  24   of video over the Internet.

  25   Q.  Are you being compensated for your engagement here?




                                                                24



   1   A.  Could you repeat the question?

   2   Q.  Are you being compensated for your engagement by

   3   plaintiffs?

   4   A.  I certainly hope so.

   5   Q.  How do the rates you are charging compare to the rates you

   6   do charge for consulting work for Morgan Stanley and

   7   MacKenzie?

   8   A.  For expert witnessing I charge approximately one third of

   9   what I do for teaching to industrial corporations.

  10            MR. SIMS:  This is the point at which I would have

  11   tendered the witness as an expert.

  12            THE COURT:  Ask your next question.

  13            MR. SIMS:  Thank you, your Honor.

  14   Q.  Are you familiar, Dr. Shamos, with the term CSS?

  15   A.  Yes.

  16   Q.  What does CSS stand for?

  17   A.  It stands for Contents Scrambling System.

  18   Q.  What is your understanding of what CSS is?

  19   A.  CSS is an access control and copy protection mechanism

  20   that's utilized to control access to and the copying of

  21   copyrighted works that appear on DVDs.

  22   Q.  What is your understanding of what CSS does?

  23   A.  Well, CSS is a comprehensive scheme that involves

  24   contractual relations, hardware and computer software.  What

  25   CSS on the hardware level does is enables a licensee of the




                                                                25



   1   system to put copyrighted material on a disk so that it is in

   2   scrambled form and cannot be descrambled unless one knows the

   3   secret.

   4   Q.  In what kind of DVD players can authorized disks be

   5   played?

   6   A.  Well, authorized disks are supposed to be able to be

   7   played only in what are referred to as compliant players,

   8   players manufactured by licensees of CSS.

   9   Q.  And what kind of disks will authorized players play?

  10   A.  Well, to my knowledge authorized players play compliant

  11   disks.

  12   Q.  Should they play other disks?

  13   A.  I believe it's a requirement, a licensing requirement that

  14   they be constructed to not play unlicensed disks.

  15   Q.  Do you know what DeCSS is?

  16   A.  Yes.

  17   Q.  What does it do?

  18   A.  DeCSS is a computer program that circumvents the

  19   protections on the CSS DVD.

  20   Q.  Were you asked by plaintiff's counsel in this case to

  21   perform any studies or tests?

  22   A.  Yes, I was.

  23   Q.  Would you describe for the Court briefly what you were

  24   asked to do.

  25   A.  Yes.  The request was extremely specific.  I was asked to




                                                                26



   1   go out and purchase a brand new computer that had no prior

   2   software.  We were asked to go out and purchase brand new DVDs

   3   from a store in their sealed packages.  We were asked to

   4   obtain --

   5            MR. HERNSTADT:  I might as well make the objection

   6   now.  Everything that he is telling you as "we" is for the

   7   most part at least as set forth in his declaration "he," and

   8   he is his assistant Eric Burns.  So I would object to any of

   9   the testimony that Dr. Shamos is going to present that was not

  10   performed by him, and that includes almost all of the

  11   experiments, and that also includes things like how long the

  12   process took.  We could go through it on a piece by piece

  13   basis, but I would like to make the initial part of the

  14   objection known.

  15            I don't think Dr. Shamos should be permitted to

  16   testify about any of this stuff until we have had an

  17   opportunity to depose Mr. Burns, because Mr. Burns conducted

  18   most of the experiment.

  19            THE COURT:  I take it that the bottom line of all of

  20   this, Mr. Sims, is that you are going to ask for some opinion

  21   from Dr. Shamos.

  22            MR. SIMS:  Absolutely.  And Dr. Shamos was asked to

  23   conduct it, and he did conduct it, and he had the help of his

  24   assistant Mr. Burns.  And I am quite confident in the courts

  25   of this country when experts testify as to studies that they




                                                                27



   1   have been responsible for, they sometimes have assistants who

   2   have performed some of that work under their supervision.

   3            THE COURT:   Rule 703 I believe of the Federal Rules

   4   of Evidence provides that the facts or data in a case upon

   5   which an expert bases an opinion or an inference may be those

   6   known to him or made known to him.  If they are of a type

   7   reasonably relied upon by experts in the field in forming

   8   opinions or inferences on the subject, the data need not be

   9   admissible in evidence.  It need not be, in other words,

  10   firsthand knowledge, it can be hearsay.

  11            With this broad level of generality, Mr. Hernstadt, I

  12   can't sustain your objection because I don't yet know what

  13   foundation is going to be offered.  So your objection is

  14   overruled for now and we will see what kind of foundation

  15   there is.

  16            MR. HERNSTADT:  Thank you.

  17   Q.  Dr. Shamos, I think you were in the course of describing

  18   what you were asked to do, and I think it might be helpful

  19   just to go through it, because I'm not sure exactly where you

  20   left off.

  21   A.  Right.  It was to obtain a brand new computer capable of

  22   reading authorized DVDs, obtain a copy of some authorized

  23   DVDs, obtain a copy of DeCSS through defendant's website,

  24   attempt to use DeCSS to descramble one or more of the DVDs;

  25   having done that, attempt to rip the result into DiVX, attempt




                                                                28



   1   to find other DiVXs on the Internet, trade those with whoever

   2   might make them available and then conduct studies to

   3   determine how long it would take to transfer DVDs and DiVXs

   4   over networks and the Internet.

   5   Q.  Did you perform all of this work yourself?

   6   A.  No.

   7            MR. HERNSTADT:  I'm going to renew the objection.  Of

   8   that list of things, first of all this was an experiment

   9   solicited by the Proskauer firm.  They were asked to do those

  10   particular things, they did that.  Dr. Shamos was not present

  11   for the study of how long it took to transfer the DiVX.  He

  12   was not present for finding other DiVXs.  He has never used an

  13   IRC channel on his own.  He didn't know that that's where you

  14   are supposed to go, or at least he testified that his

  15   assistant told him that's where you have to trade this stuff.

  16            He also was informed by his assistant how to find --

  17   well, I guess he could have found the DiVX anyway, but the

  18   assistant performed the entire DiVX rip.  He observed, he

  19   testified, for some of it.  He watched his assistant do this

  20   stuff.  In terms of the time, his assistant told him how long

  21   it took.  In very general terms his assistant did not keep any

  22   records, and he doesn't even know -- there is an upload and a

  23   download at the same time.  He doesn't know whether one took

  24   longer than the other or how long it actually took.  There is

  25   no evidence of any of this.




                                                                29



   1            THE COURT:  One thing I know for sure is I don't know

   2   any of it because I haven't heard the evidence yet.

   3            MR. SIMS:  The objection, your Honor, is premature.

   4            THE COURT:  Yes, it's premature.

   5   Q.  Dr. Shamos, I think I had asked you whether you performed

   6   other work yourself, and you were about to provide an answer.

   7            THE COURT:  Before he answers, let me just make a

   8   request to you both.  It's no secret to you I'm getting

   9   realtime transcripts, that is, I'm seeing a draft of the words

  10   almost as soon as they are spoken.  It is perfectly obvious to

  11   me that this is going to be essentially useless, and your

  12   transcript in this case will be essentially useless, with all

  13   due respect to my very able court reporters, if you people

  14   don't give them a glossary by tomorrow, not an explanation of

  15   what the terms mean but simply a list of the terms.  Because I

  16   can't imagine that they are doing anything but trying to do

  17   things like phonetically render on a stenotype machine DiVX,

  18   and you guys know what that is, and I at least know that it is

  19   an acronym or an abbreviation, and I know what the letters

  20   are, but they don't have a clue.

  21            MR. SIMS:  I appreciate that.  At five of nine we put

  22   that on our to-do list this morning, and we will have that

  23   later today or no later than first thing in the morning.

  24            THE COURT:  Now, Dr. Shamos, please answer the

  25   question if you remember.




                                                                30



   1            THE WITNESS:  I think the question was did I do

   2   everything myself, and the answer is no, and I think of course

   3   not.

   4            When the CEO of a corporation reports his company's

   5   earnings, he doesn't add up the numbers personally himself.

   6   So, I engaged an assistant whose name is Eric Burns.  Eric

   7   Burns has been working with me for two and a half years.  He

   8   works on the Universal Library project where his principal

   9   responsibility is the creation of videos and installing videos

  10   in the Universal Library.  I have worked with him very

  11   extensively, and I have come to rely on both his knowledge and

  12   his truthfulness.

  13            Furthermore, the materials that he provided to me

  14   were not simply his own words but various pieces of physical

  15   evidence that I am able to examine in order to determine

  16   whether I thought there was anything wrong with what he was

  17   saying.  Furthermore, all of the actions that were performed

  18   here were done under my supervision or direction, with the

  19   exception of some activities that took place while I was on

  20   vacation for 12 days.

  21   Q.  Do computer scientists and professors such as yourself

  22   customarily rely on intelligent, experienced, brilliant

  23   computer students for some of their research and work?

  24   A.  Yes.

  25   Q.  What is your opinion of Mr. Burn's intellectual




                                                                31



   1   qualifications as a computer scientist?

   2   A.  They were the reason I asked him to assist me in this

   3   project.

   4   Q.  Now, I would like you to take us through the steps from

   5   the beginning that you used in your study, and we have some

   6   charts here that may be helpful as we work through it.

   7            In connection with the first part of your test to see

   8   if you could obtain DeCSS.

   9            THE COURT:  Who is the gentlemen who just came inside

  10   the well?

  11            MR. SIMS:  Mr. Hart, one of my partners.

  12            MR. HERNSTADT:  Your Honor, we have never seen these

  13   charts.

  14            MR. SIMS:  Yes, you have.  They are exhibits and I

  15   believe you have them.

  16            MR. HERNSTADT:  What exhibits are they?

  17            MR. HART:  Starting with 105.

  18            MR. SIMS:  Your Honor, may I have Mr. Hart help me

  19   with the charts?

  20            THE COURT:  You may certainly.

  21   Q.  In connection with the first part of your testimony to see

  22   if you could obtain DeCSS from the defendant's site and

  23   descramble one of plaintiff's films, did you begin by buying a

  24   new computer?

  25   A.  Yes, we went out to -- both Eric and I went out to Comp




                                                                32



   1   USA in Parkway Center Mall in Pittsburgh, and we needed to

   2   find a machine that day that would be capable of playing DVDs,

   3   so we bought a high-end Sony laptop.

   4   Q.  For the purposes of your research and experiment here,

   5   what was the purpose of buying a new laptop?

   6   A.  We wanted to avoid any suggestion that there were rogue

   7   pieces of software or things that we had created that had been

   8   lingering on the disk.  We wanted to make sure there was

   9   absolutely nothing on this machine except the operating system

  10   and software that we specifically downloaded to the machine as

  11   noted in my declaration.

  12   Q.  Is it a typical consumer computer?

  13   A.  I'm not sure I would refer to it as a typical consumer

  14   computer.  It's a laptop for one thing, and typically

  15   consumers have home PCs.  And at the laptop end, it's fairly

  16   at the high end, although it costs significantly less these

  17   days than a home desktop used to cost.

  18   Q.  How does its functionality compare to those that many

  19   Americans would have either at the university or if they were

  20   in high school and in an upper middle class community?

  21   A.  In terms of its processor capability, it's about at the

  22   middle range of what one gets in desktops now, but it is at

  23   the high end of what one gets in laptops.  It was a 650

  24   megahertz machine.  In terms of its disk storage it had 18

  25   gigabytes of disk, which is large for a laptop but not large




                                                                33



   1   for a desktop as currently sold now.

   2   Q.  Did you proceed to try to decrypt the CSS-scrambled movie

   3   using DeCSS?

   4   A.  We did.

   5   Q.  Where did you get DeCSS?

   6   A.  Okay.  First, we purchased a copy of Sleepless in Seattle

   7   from the same store that we purchased the laptop from.  We

   8   then came back, and I think if we look at Exhibit 105 --

   9            THE COURT:  Are you sure it wasn't Sleepless in

  10   Hollywood?

  11            THE WITNESS:  We were sleepless actually during a lot

  12   of this experiment.

  13   A.  So, we went to defendant's website, 2600.com.

  14   Q.  Is Exhibit 105 connected somehow to defendant's website?

  15   A.  Yes, I should explain that most of these exhibits on these

  16   charts are going to be what are referred to as screen shots.

  17   Screen shots are basically capturing in static form exactly

  18   what was being displayed on the screen of the laptop at the

  19   time that these actions were taken.  So, they are the

  20   equivalent of having stood there and photographed the screen.

  21            So, one can see from a line -- and I am pointing with

  22   this laser pointer to some of that.  I will try to keep it out

  23   of your eyes -- up here is a line that says address.

  24            An address indicates the domain name of the website

  25   that we are visiting, in general the URL, the specific




                                                                34



   1   resource that we were asking to be downloaded to the screen.

   2            And this is the home page of defendant's website.

   3            MR. SIMS:  Your Honor, are the books sufficient for

   4   your use, or would you like to be handed a loose copy of the

   5   exhibit?

   6            THE COURT:  No, I don't need a loose copy if they are

   7   in the books.

   8            MR. SIMS:  We will move in, needless to say, the

   9   paper ones.

  10            THE COURT:  I'm sorry?

  11            MR. SIMS:  You already have those.  I don't need to

  12   give the witness the paper one because he has the chart.

  13            THE COURT:  If he can see it.

  14            THE WITNESS:  Yes, I can.

  15            Then I think in the next exhibit, one has to scroll

  16   down a little bit from the top of the home page.

  17            THE COURT:  Mr. Sims, are you offering 105?

  18            MR. SIMS:  I was going to offer them in a group.

  19            THE COURT:  That's fine.  What is the next one?  106?

  20            MR. SIMS:  106.

  21   Q.  What does 106 show?

  22            MR. HART:  I have 107.

  23            THE COURT:  Let's do 106.

  24   Q.  What does Exhibit 106 show?

  25   A.  This one, because of the small size of the text, I would




                                                                35



   1   appreciate having a paper copy.

   2            THE COURT:  Let's make this a little easier.  I have

   3   been provided with an extra copy of these exhibits.  Why don't

   4   you take them down there, Dr. Shamos, and they are all tabbed

   5   and can you use them.  I take it that's the same as the other

   6   set?

   7            MR. SIMS:  It is, absolutely.  For awhile anyway.

   8   Q.  What is Exhibit 106?

   9   A.  Exhibit 106 shows more of the home page of defendant's

  10   website, what happens when one scrolls down further in the

  11   site.

  12            In this section "how you can help:  While we have

  13   every intention of sticking this out to the end" -- I believe

  14   "this" refers to this litigation -- "we have to face the

  15   possibility that we could be forced into submission.  For that

  16   reason it's especially important that as many of you as

  17   possible, all throughout the world, take a stand and mirror

  18   these files."  Where "these files" are shown in red and

  19   underlined on the page, that indicates a hyperlink, which if

  20   one clicks with a mouse one will get to these files.  These

  21   files are indicated I think in the next exhibit.

  22   Q.  And did you click on the hyperlink to these files?

  23   A.  We did.

  24   Q.  Turn to Exhibit 107, if you would.

  25            What is the list of things here, and what is




                                                                36



   1   represented by the purple color in the middle?

   2   A.  Yes, Exhibit 107 shows the result of clicking on "these

   3   files" on Exhibit 106, and one is presented with a long list

   4   of places.  We didn't visit every one of them but presumably

   5   because of what is stated in the web page each of these is

   6   some place where one can obtain DeCSS from.

   7            We clicked on an

   8   "HTPP://home.rmci.net/bert-fuckthelawyers"

   9            If your Honor would excuse me for the necessity to

  10   use such terminology in the courtroom, but it is evidence.

  11            So we clicked on that link and we are taken to a site

  12   which I think is shown in Exhibit 108.

  13   Q.  And is this the page you obtained by clicking on the

  14   purple line in Exhibit 107?

  15   A.  Yes, it is.  In fact if one looks up at the address line,

  16   again at the top of the browser it shows that the page being

  17   viewed is precisely the page that was referred to on the

  18   previous exhibit.

  19   Q.  So, that if we look at the browser line on Exhibit 107,

  20   the address is still at the defendant's website, 2600.com?

  21   A.  Yes, it shows that and it shows the specific file that was

  22   being displayed on the browser at that moment.

  23   Q.  And then the very next screen you obtained has transferred

  24   you to another website obtainable through the defendant.

  25   A.  That's correct.




                                                                37



   1   Q.  What does Exhibit 108 show?

   2            THE COURT:  You say "obtainable through the

   3   defendant."  I take it you are not meaning to suggest by that

   4   that Exhibit 108 is on the defendant's site.  Rather, it's a

   5   site that you get through clicking, is that right?

   6            THE WITNESS:  Precisely.  The page shown on Exhibit

   7   108 is not at the defendant's website.  It's at bert's

   8   website.

   9   Q.  And what else does Exhibit 108 show of relevance to your

  10   experiment?

  11   A.  Well, this is a way to obtain DeCSS, because it says this

  12   is simply a mirror of the files necessary to decrypt the copy

  13   protection built into DVD players.  Mirror refers to a site

  14   that essentially contains an identical copy of material found

  15   on another website.  It's common to mirror materials, either

  16   whole web sites or portions of websites.

  17            The first entry where it says DeCSS.zip says this is

  18   the utility used to rip the .VOB files off DVDs to be copied

  19   to your hard drive.

  20            Now, copying to a hard drive is something that

  21   compliant DVD players are not allowed to do, because once the

  22   materials are copied to the hard drive they can be freely

  23   played, freely edited, freely distributed.  So, DeCSS.zip

  24   refers to a program or refers to data that has been compressed

  25   with a program called Zip, which is commonly used on the




                                                                38



   1   Internet to reduce the size of files to speed up their

   2   transfer.

   3            And it's all arranged so that when you click on this

   4   link, this DeCSS.zip link, that an automatic procedure is

   5   invoked that causes the file to be downloaded to your own

   6   computer.

   7            (Continued on next page)

   8

   9

  10

  11

  12

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25




                                                                39



   1   Q.  And was that done?

   2   A.  That's what we did; yes.  We clicked on that link.  That's

   3   why it shows up in purple, as opposed to being in blue.

   4   Q.  Let me show you Exhibit 109 and ask whether that is what

   5   you obtained after clicking on DeCSS.zip?

   6   A.  Yes.  This is a -- what's shown here I think is probably

   7   not the entire screen at the time.  This is a blowup of just

   8   the file download window that got opened automatically when

   9   the DeCSS.zip link was clicked that invokes a utility under

  10   Windows that informs the user he has asked to have a file.

  11   Downloaded and the system wants to know whether the file

  12   should just be opened directly from the web site or saved to

  13   the user's own hard disk.

  14            We clicked that to save this file to disk.  As you

  15   can see from the dot inside the radio button where it says

  16   "save this file to disk" and then we clicked "O.K."

  17   Q.  What came on the screen next?

  18   A.  I think it's Exhibit 110.

  19            Actually, it's likely that we were asked to give a

  20   file name for the file that we were going to save and I think

  21   that's not shown in the screen shot here.

  22   Q.  What does Exhibit 110 show?

  23   A.  Exhibit 110 is a screen shot that was captured during the

  24   actual download of DeCSS.zip from the lawyer's web site and

  25   what it shows is that after we had transferred 38.3 kilobytes,




                                                                40



   1   only one second estimated remained, and that we had copied

   2   already more than half of the file.  So, it took about two

   3   seconds to do that download.

   4   Q.  To download DeCSS altogether?

   5   A.  Yes.  Once having selected, we wanted to start the

   6   download, the actual download took about two seconds.

   7            MR. SIMS:  Your Honor, I would offer Exhibit 129,

   8   which is Dr. Shamos' CV together with Exhibits 105 to 110.

   9            MR. GARBUS:  No objection.

  10            THE COURT:  Received.

  11            (Defendant's Exhibits 105 through 110 received in

  12   evidence)

  13   Q.  Did you and your assistant then proceed to use the DeCSS

  14   that you had obtained by a link through defendant's web site?

  15   A.  Yes, we did.  The first thing, of course, we had to do was

  16   unzip it, so we had to run winzip in order to expand the

  17   DeCSS.zip file to something called DeCSS.exe -- DeCSS.

  18            When I say "dot," I mean the "period" character.

  19   Q.  And do you know how long that took?

  20   A.  The unzipping?

  21   Q.  And to find the utility?

  22   A.  Well, yes.  We had now advanced from a web site called

  23   FM4, what utilities we were going to need to do all of the

  24   things we were going to do.  So, I stated in my declaration,

  25   we obtained off the Internet three pieces of required software




                                                                41



   1   to do.

   2   Q.  And what were those pieces of software?

   3   A.  One of them was winzip, which we knew what was going to be

   4   required to decompress files.  Another was called FTP207.  FTP

   5   stands for "file transfer protocol."  That software that's

   6   used for transfer filings over the Internet.

   7            Then mIRC 3.71 is a piece of software for engaging in

   8   Internet relay chat.  That's a procedure whereby multiple

   9   people and also two people on the Internet can basically talk

  10   to one another, not through voice, but by typing at their

  11   terminals.  When one person types, the other person sees what

  12   that person is typing.

  13   Q.  Are these pieces of software which many computer users

  14   would already have on their computer?

  15            MR. GARBUS:  Pardon me.  I object to the question.

  16            THE COURT:  Overruled.

  17   A.  Not only would many users already have them, but they are

  18   freely available over the Internet.

  19   Q.  How did you use DeCSS with Sleepless in Seattle?

  20   A.  Well, we inserted it into the DVD drive --

  21   Q.  I'm sorry?

  22   A.  We inserted the Sleepless in Seattle DVD into the DVD

  23   drive of the laptop and we invoked DeCSS.exe.

  24   Q.  How long did that process take?

  25   A.  Well, the invocation was very fast, but we have to go




                                                                42



   1   through the actual process of descrambling the DVD and the

   2   entire process for doing all of this from start to when we

   3   finished took about 45 minutes, but the actual processing time

   4   to do the descrambling is in the range of 20 to 30 minutes.

   5   Q.  That is from the moment you applied the DeCSS to Sleepless

   6   in Seattle, the descrambling time was?

   7   A.  That was in the range of 20 to 30 minutes.  It was a

   8   computationally-intensive process.

   9   Q.  And what was the result that you obtained from applying

  10   DeCSS to a store-bought copy of Sleepless in Seattle?

  11   A.  Yes, I think we have -- I guess we don't have exhibits

  12   here.  Well, the result of DeCSS'ing is what are called VOB

  13   files, video object files, that are playable through the

  14   laptop.  And so, we obtained a file of Sleepless in Seattle.

  15            The first time we did it, it wasn't complete because

  16   the complete VOB file, I believe, is 4.3 gigabytes and we

  17   couldn't get the system to create a file larger than four

  18   gigabits.  But we had a perfectly playable file and we played

  19   it and it was the equivalent to the DVD of the movie Sleepless

  20   in Seattle.

  21   Q.  And how did you know that the computer was at that point

  22   playing the DeCSS'd version of the store-bought copy rather

  23   than the DVD that you had put into the hard drive?

  24   A.  Oh, because to demonstrate that we specifically removed

  25   the DVD from the DVD disk itself of Sleepless in Seattle from




                                                                43



   1   the DVD drive so the thing could only have been playing from a

   2   file that was on the hard disk.

   3   Q.  Now, are there ways to make the file you obtained, that

   4   is, the file of Sleepless in Seattle resulting from the

   5   application of DeCSS, are there ways to make that file small?

   6   A.  Well, not directly by itself, O.K.  There are two kinds of

   7   ways of making a file smaller.  One is referred to as loss

   8   less compression.  The other is referred to lossy L-O-S-S-Y

   9   compression.

  10            In loss less compression, enough information is

  11   stored about the data so that it can be reconstructed exactly

  12   bit for bit.  It is not a failing to attempt to do loss less

  13   compression on a VOB file, essentially one can't compress it

  14   any further.

  15            There are, however, ways of compressing the file in

  16   the lossy manner so that it can become much smaller.  And

  17   smaller files are better as long as the visual acuity doesn't

  18   suffer because they can be transferred to people faster and

  19   more of them can be put on the same media or like DVD's or

  20   CD-Roms.

  21   Q.  In your experience, does doing so require a high degree of

  22   expertise?

  23   A.  When you say "doing so," you mean the process of going --

  24   of performing a lossy compression on a VOB file?

  25   Q.  That's correct.




                                                                44



   1   A.  It requires some degree of expertise.  Fortunately, all of

   2   that expertise can be acquired through instructional tutorials

   3   on the Internet, which is how we did it.

   4   Q.  And from where did you get the information that told you

   5   how to proceed to compress the DeCSS file you had obtained?

   6   A.  There's a web site called FM4.org that provides that

   7   information.

   8   Q.  Let me put on the chart stand Exhibit 112 and ask you to

   9   explain what that is.

  10   A.  Well, 112 is the home page of FM4.org, as one can

  11   determine by again looking at the address line shown in the

  12   browser and it says, welcome to FM4.org, free MPEG4.  That's

  13   F-R-E-E-M-P-E-G-4 as one word -- is a group created to provide

  14   you with the best quality new and classic movies encoded with

  15   MPEG4 technology.

  16            You can join the channels #DiVX point is the number

  17   sign character like a music sharp sign -- you can join the

  18   channels #DiVX and point free MPEG4 on the EFNET, IRC network

  19   to visit us.

  20            And then down further at the bottom of the page under

  21   the news entry, May 1, 2000, it says, "Big thanks to BCKSPACE

  22   for letting me rape his DiVX tutorial."

  23            And that DiVX tutorial is a something like that link

  24   where one can find out about how to make DiVX's, but because

  25   FM4 was able to raise it, it was necessary to go to back




                                                                45



   1   spaces web site.  It could be obtained directly from FM4.org.

   2   Q.  Did you and your assistant click on the FM4 tutorial?

   3   A.  Yes.

   4   Q.  And let me show you Exhibit 113 and ask what that --

   5   A.  Yes, 113 is the page on the FM4.org web site that contains

   6   the tutorial as is fairly clear from again looking at the

   7   address line on the browser which shows that it's the FM4.org

   8   page named tutorial or it's in the directory tutorial.  It's

   9   probably default at html or something in, but it's in the

  10   tutorial directory.

  11            And what this explains is this tutorial will take you

  12   through the process of creating your own DiVX movies step by

  13   step, credit for the content of this tutorial should go to

  14   backspace E for creating the original and allowing me unFKN

  15   real -- I don't want to pronounce that as it's intended to be

  16   pronounced to modify for FM4.  And there are -- then there are

  17   five steps listed that one must go through in order to produce

  18   a DiVX from a decrypted DVD.

  19   Q.  And will you read what it says in step 1?

  20   A.  Step 1:  DVD-extraction/decryption:  There's a hyperlink

  21   DeCSS.  It says, to decrypt the *.VOB files on the DVD and

  22   copy them to hard disk.

  23   Q.  And you had already done that?

  24   A.  We had already obtained DeCSS and done that.

  25            MR. GARBUS:  I object.




                                                                46



   1            It seems to me at some point we get into questions of

   2   material off the Internet and whether or not that material is

   3   or is not hearsay and it seems to me that's a start that we

   4   will start to get into and this information is getting from

   5   some outside source.  And he's presenting it, I presume, for

   6   the truth of it.

   7            THE COURT:  As I understand it, he is presenting it

   8   to explain what he did.

   9            MR. GARBUS:  I presume -- I understand he's doing it

  10   for the purpose of the truth of it.

  11            MR. SIMS:  Only for the truth of what he did.

  12            THE COURT:  The bottom line is that he is saying that

  13   he followed these steps and the result was that he, I assume,

  14   had himself a decrypted DiVX movie so he -- it's sort of like

  15   a policeman testifying that there was a call over the radio

  16   that says there was a holdup at Broadway and 118th Street and

  17   he ran as far up Broadway and 118th Street, and lo and behold,

  18   there was somebody holding a gun on somebody.

  19            And certainly the radio call is not admitted for the

  20   truth of the purpose.  It's offered to explain why the

  21   policeman went to 118th and Broadway and happened to find the

  22   robbery.  I think this is the same thing; is it not?

  23            MR. GARBUS:  I don't think, and I can barely read

  24   these exhibits with the copies that I have.  I think it talks

  25   about other people having done other things and other people




                                                                47



   1   having downloaded films.

   2            THE COURT:  Yes, look I take it Mr. Himself you're

   3   not offering any of that for the truth.

   4            MR. SIMS:  Absolutely not.

   5            MR. GARBUS:  Thank you.

   6            THE COURT:  To that extent, sustained.

   7            MR. GARBUS:  Thank you.

   8   Q.  Dr. Shamos, what did you do since you had already

   9   performed, you and your assistant, the part of this of getting

  10   DeCSS, what did you do next?

  11   A.  We performed all the remaining steps 2 through 5 on

  12   Sleepless in Seattle.

  13   Q.  And are those reflected in the next series of exhibits

  14   that you provided?

  15   A.  They are.

  16   Q.  Turn then if you would to Exhibit 114B.

  17            THE COURT:  Is this B or D?

  18            MR. SIMS:  114B.

  19            THE COURT:  "B" as in boy?

  20            MR. SIMS:  We skipped over "A" for a moment.

  21   A.  Well, step 1 is DVD ripping the right way and the advice

  22   given on FM4 down in the second paragraph.  It says, to start,

  23   run DeCSS and starting with the first one going file select,

  24   the files to decode from the first to the last file in the

  25   series.




                                                                48



   1            So, the result of running DeCSS is it produces a

   2   bunch of files that one can select from those that one wants

   3   to make a DiVX of.  And we chose the as shown by the screen

   4   down there, it tells you how to make that selection.

   5   Q.  And the ones that are purple on the bottom right, are

   6   those the files that you chose -- selected?

   7   A.  Yes.

   8   Q.  What did you do next?

   9   A.  Well, we followed step 2.

  10   Q.  114, please.

  11            What does Exhibit 114C show?

  12   A.  114 is an example that shows how to extract the video

  13   portion of the DeCSS to DVD.  Of course a video has both video

  14   information and audio information and it's necessary in this

  15   procedure to extract the video information separately, the

  16   audio information separately, and then merge them together and

  17   attempt to synchronize them to result in a DiVX that will

  18   actually make sense when it's played so that the speech of the

  19   actors is properly synchronized with their emotion.

  20   Q.  And to what extent does the FM4 tutorial lead you through

  21   that process?

  22   A.  Well, completely.  I mean, we followed every step in here

  23   to the letter.

  24   Q.  So, you undertook the video extraction as shown on 114C?

  25   A.  Yes.




                                                                49



   1   Q.  And then, what did you do?

   2   A.  We went to step 3.

   3   Q.  Will you put up 114D.

   4            What does Exhibit 114D show?

   5   A.  O.K., Exhibit 114D is step 3 in which one having already

   6   extracted the video now must go and extract the audio from the

   7   DeCSS DVD and this explains how to do that.

   8   Q.  What was the next step?

   9   A.  The next step was step 4.

  10            MR. SIMS:  114E, please.

  11   A.  That's correct.  And they refer to this as multiplexing

  12   which is basically the process of merging the audio and video

  13   together, it says, so now you have an AVI file that has only

  14   video and an enormous WAV file.  What do you do?  And then

  15   this shows you what to do in order to merge the two to create

  16   a result that's supposed to have some semblance of

  17   synchronization.

  18   Q.  Was there any further step you needed to undertake?

  19   A.  Yes, the result of this produced what I would -- what I

  20   believe are referred to in the declaration as a horribly

  21   desynchronized DiVX in which the sound was not occurring at

  22   the same time as the action in the movie.

  23   Q.  And did FM4 explain how to solve that problem?

  24   A.  Yes, to some extent.  There is another --

  25   Q.  Will you put up 114A.




                                                                50



   1            Is there an explanation of how to address the

   2   desynching problem on 114A?

   3   A.  Yes, a little bit more than halfway down the page, it

   4   says, fixing the desynch.  If your video audio does start out

   5   synced, but gradually becomes desynched, you can skip this

   6   step, etc.

   7            What was necessary to do in our case at that time was

   8   do a lot of fiddling around with the -- with the audio and

   9   video portions in order to get them synchronized properly.

  10            This required eliminating the opening trailer of the

  11   movie because the opening trailer is recorded at a different

  12   frame rate than the movie itself and the process assumes that

  13   either one or the other of those speeds is going to be used

  14   all the way through.  And so by eliminating the opening

  15   trailer, we were eventually able to get the DiVX properly

  16   synchronized.

  17   Q.  By "opening trailer," do you mean an advertising for the

  18   film?

  19   A.  The opening trailer typically contains previews of other

  20   films and anything that the video company wants you to see

  21   before you see the movie.

  22   Q.  So that the first time that you and your assistant went

  23   through this process, how long did it take you altogether to

  24   end up with a DiVX'd -- that's DiVX'd?

  25            MR. GARBUS:  Are you through?




                                                                51



   1            MR. SIMS:  No.

   2   Q.  -- with a DiVX'd copy of Sleepless in Seattle on the hard

   3   drive obtained through DeCSS?

   4            MR. GARBUS:  Your Honor, I understand when this was

   5   done, Mr. Shamos was not there.

   6            THE WITNESS:  The understanding is not quite correct.

   7   I was not there at the moment of completion of the process.

   8   Q.  Were you there?

   9   A.  I was present at various times during the process.

  10   Q.  And where is your office in relationship to your

  11   assistant's office?

  12   A.  It's two offices away, approximately 20 feet.

  13   Q.  What was -- so, the first time you went through it, you

  14   and your assistant weren't through it, how long did the

  15   process take?

  16   A.  The first time we were complete novices and the whole

  17   thing took about 20 hours.

  18   Q.  And much of that was related to the desynching issue that

  19   came up?

  20   A.  Yes.

  21   Q.  And have you undertaken with Mr. Burns to do it

  22   subsequently?

  23   A.  We have done various experiments.  We believe that we can

  24   now do it in about 10 hours.

  25   Q.  What was the end result of the DiVX process?




                                                                52



   1   A.  The end result was a DiVX'd version of Sleepless in

   2   Seattle that was substantially smaller than the original by a

   3   factor of I recall something like 5.6.

   4            THE COURT:  5.6, what, gigabytes?

   5            THE WITNESS:  No, it was smaller than 20 percent of

   6   the size of the original file.  It -- the size had been

   7   reduced by a factor of 5.6, so it came down to something over

   8   700 megabytes.

   9            THE COURT:  So, what I want to be clear on is what

  10   the two comparisons are.  Is the starting comparison, that is,

  11   the precompression file the file that you had after you ran

  12   DeCSS on the DVD?

  13            THE WITNESS:  Yes, I'll make it -- I will be very

  14   specific with the numbers.  The video object file, the .VOB

  15   file that we obtained by DeCSS Sleepless in Seattle was 4.3

  16   gigabytes.  After we completed the DiVX process, it was down

  17   to 750 megabytes.

  18   Q.  That's a ratio of about 5.67?

  19   A.  Yes.

  20   Q.  Now, have you --

  21            THE COURT:  How much of that compression was

  22   attributable to the elimination of the trailer?

  23            THE WITNESS:  I think the trailer lasts something

  24   like three minutes and the movie lasts close to two hours.

  25   It's just a tiny -- tiny percentage.




                                                                53



   1   Q.  And have you and your assistant been able to obtain DiVX

   2   copies of DeCSS films in the size of around 650 megabytes?

   3   A.  Yes, we have by playing with the compression ratio, if you

   4   increase the compression ratio higher than 5.67, then you can

   5   get it down to and the objective of all of this is to get it

   6   down so that it fit on one CD-ROM and CD players and CD-ROM

   7   recorders are readily available through computer stores, so we

   8   fiddled through it to get it down.

   9            MR. GARBUS:  My understanding is this was done

  10   without this witness' knowledge and while he was in Hawaii.

  11   It was not done at his direction.  It was not part of this

  12   experiment.  It was not part of the -- done under his

  13   supervision.

  14            THE WITNESS:  Nevertheless, I did see the result and

  15   I have no reason to disbelieve my assistant of two and a half

  16   years.

  17            THE COURT:  Go ahead, Mr. Sims.  This is a matter of

  18   cross-examination, Counsel.

  19   Q.  Does DiVX work directly on CSS encrypted DVD movies?

  20   A.  I'm sorry.  Could you repeat --

  21   Q.  Can you obtain an intelligible perceptually useful version

  22   of a film if you apply DiVX to a store-bought DVD?

  23            MR. GARBUS:  I object to the form of the question.

  24            THE COURT:  I don't understand the question.

  25            Sustained.




                                                                54



   1   Q.  Dr. Shamos, if you attempted to attempt to compress

   2   Sleepless in Seattle as you bought it directly from the store

   3   having -- would it be possible to compress the store-bought

   4   version encrypted of Sleepless in Seattle?

   5   A.  If we did not attempt to do so.

   6   Q.  Would it be possible?

   7   A.  If we tried to do so, I don't know if the tools available

   8   to us would even do the processing, but if it did the

   9   processing, garbage would result because there would be no way

  10   to decrypt or descramble the material on the DVD.

  11            THE COURT:  It would be useful at this point, Dr.

  12   Shamos, for you to place what the DiVX acronym or whatever it

  13   is means and what precisely it is.

  14            THE WITNESS:  Certainly.  There are a number of

  15   compression technologies that are used on video.  The whole

  16   idea is that visual information on a computer requires a huge

  17   amount of storage space because each individual little square

  18   on the screen.  What we refer as pixels, information must be

  19   stored about the brightness of the pixel and exactly what the

  20   color composition of the pixel is.

  21            And in order to achieve high resolution images, a

  22   tremendous number of pixels are required, therefore, the size

  23   of the single frame in the video is large.  What this results

  24   in is unless compression is performed, an entire video takes

  25   up so much digital storage space that there is no medium on




                                                                55



   1   which it can be delivered.

   2            We don't have that technology right now at any

   3   affordable price, so it's always necessary to compress the

   4   videos.  And there is an organization called the Motion

   5   Picture Experts Group, MPEG, which has been doing studies for

   6   a long time on how one can compress video in such a way that

   7   even though it is lossy, none of the -- or very little of the

   8   visual quality is lost to the human being.

   9            And this is done by a process called perceptal

  10   encoding.  Cognitive psychologists have studied the human

  11   visual system and they know the ways in which the human eye is

  12   sensitive to certain things.

  13            For example, the human eye is insensitive to small,

  14   slow changes in color, but it is extremely sensitive to

  15   changes in contrast.  That's what enables us to pick out edges

  16   of objects.

  17            So, in perceptual encoding, which is used in MPEG,

  18   that information from the video stream is eliminated that a

  19   human being cannot see.  Therefore, if you can't see it, even

  20   though there's less information there, it still looks as good.

  21            MR. GARBUS:  Your Honor, so far as I know, this

  22   witness has never written on MPEG, has never testified with

  23   respect to MPEG and is not an expert on MPEG, which is a very

  24   different area than the other areas we've been going through.

  25            THE WITNESS:  I lecture 50 times a year on




                                                                56



   1   compression technologies.

   2            THE COURT:  I'm going to hear the attorney.  If you

   3   have other testimony on this subject, I will hear yours as

   4   well.

   5            And, Dr. Shamos, we will do better here if you don't

   6   argue with Mr. Garbus.

   7            THE WITNESS:  I'm sorry, your Honor.

   8   Q.  Dr. Shamos, once the movie has been subject to DeCSS --

   9   A.  I hadn't completed the answer.

  10   Q.  I'm sorry.  Excuse me.

  11   A.  And so, DVDs are compressed -- the video stream from the

  12   original Hollywood movie, in order to create a DVD of it is

  13   compressed using a format called MPEG2 which came from the

  14   Motion Picture Experts Group.

  15            There are subsequent compression technologies which

  16   achieve a higher degree of compression, in particular MPEG4,

  17   which is an encoding that has the encoder for which has

  18   apparently been stolen and is not referred to as DiVX in the

  19   underground world.

  20   Q.  Once a movie on a DVD has been subjected to DeCSS and then

  21   compressed through the use of DiVX'd, does it take the 20

  22   hours or the 10 hours that your assistant eventually got it

  23   down to to be able to -- does the process that took either 20

  24   hours or 10 hours have to be gone through again?

  25   A.  No.  That one could think of that as sunken costs, sort of




                                                                57



   1   like the cost of actually producing the movie in Hollywood in

   2   the first place.  Once that's done and copies of it exists,

   3   copies could be readily distributed around.

   4   Q.  Is it possible for you to demonstrate here today the

   5   respective perceptual quality of the store-bought DVD as

   6   compared with the version that you obtained through the

   7   experiment you just have been testifying about?

   8   A.  Yes, it is.  My assistant, Eric Burns, is here and he's

   9   prepared to operate the very laptop that we used to do all of

  10   this and show it on the screen in the courtroom.

  11            THE COURT:  Before we do that, we are going to take a

  12   recess for about 15 minutes.

  13            (Recess)

  14            THE COURT:  Just to be clear, folks, we are going to

  15   continue to use the jury box for you, only so long as there

  16   are too many people to fit if the back.  You will have to move

  17   if space opens up.

  18            But let's go ahead.

  19            MR. SIMS:  Thank you, your Honor.

  20   DIRECT EXAMINATION Continued

  21   BY MR. SIMS:

  22   Q.  I think, Dr. Shamos, I was about to ask or I did ask,

  23   where you could demonstrate the prospective perceptual quality

  24   of the store-bought Sleepless in Seattle to use a different

  25   example and the DiVX'd DeCSS version that you obtained through




                                                                58



   1   your experiment.  This is Eric Burns, your assistant?

   2   A.  That's correct.

   3            MR. SIMS:  And, your Honor, if we might -- if we

   4   might, we would like to show first the -- a minute or so of

   5   the authorized DVD and then the DiVX'd DeCSS version.  Mr.

   6            Burns has been handed a store-bought copy.  I showed

   7   it to Mr. Hernstadt and asked if I had his permission, which

   8   he graciously gave for us to break the seal while the break

   9   was taking place so we could move things along.

  10            THE COURT:  Mr. Garbus?

  11            MR. GARBUS:  I would object.  What they're doing is

  12   they are showing it on a particular instrument that is not the

  13   kind of computer screen that people allegedly look at these

  14   when they are downloaded.  So, the relationship of how you see

  15   it here has nothing, nothing, to do with how it would look on

  16   a computer screen.

  17            They can, if they want to make this demonstration,

  18   bring in a large computer screen, but this is not that.  You

  19   will not see what a person will see on a computer and there's

  20   absolutely no reason why they haven't brought in a large

  21   computer other than to mislead the Court as to what you see

  22   when you see a downloaded film.

  23            THE COURT:  Well, I assume that you will address

  24   those questions to the witness on cross and you will hear the

  25   witness' testimony about what, if any, difference there is




                                                                59



   1   between this screen and any other screen, and if you then want

   2   to produce a witness to testify that a different screen would

   3   produce a different result, you can do that.  And if you want

   4   to bring in a different screen and have the thing played for

   5   me, you can do that as well.

   6            MR. GARBUS:  As you know, just to keep clear the

   7   issues between us, we had no foreknowledge of this.  This was

   8   never discussed at his testimony that such an exhibit was

   9   going to -- such a demonstration was going to be made, that we

  10   met Mr. Shamos the first time on Saturday.

  11            As of now, I don't even have, I don't think, though

  12   some people in my office may have his full deposition

  13   transcript, if we are to make arrangements either to get to

  14   cross-examination concerning this exhibit or the chance to

  15   show what a viewer of a personal computer would see.

  16            At an appropriate time, I would request a continuance

  17   so that we could do that.

  18            THE COURT:  Go ahead, Mr. Sims.

  19            MR. SIMS:  Thank you, your Honor.

  20            And by the way, Mr. Burns has in front of him the

  21   Sony computer that the experiment was performed on.

  22            THE COURT:  I really would prefer to hear the

  23   evidence from the witnesses on the stand, not from the

  24   lawyers, either you or Mr. Garbus.

  25            MR. SIMS:  I would just invite your Honor to look at




                                                                60



   1   that screen during the demonstration, if you would like to.

   2   Q.  Dr. Shamos, can you with your assistant show us first what

   3   a minute or so of the store-bought version looks like.

   4            THE COURT:  Well, just a minute.  Would that obviate

   5   your problem, Mr. Garbus, if I looked at the laptop here

   6   rather than that screen?

   7            THE WITNESS:  If it may assist the Court.

   8            THE COURT:  No, please just a minute.

   9            MR. GARBUS:  I think it would help.

  10            THE COURT:  All right.  I will do that.

  11            THE WITNESS:  The only issue, your Honor, is we can't

  12   show it on both screens at the same time.

  13            THE COURT:  We will show it here.

  14            THE WITNESS:  It's one or the other.  In order to do

  15   that, it is simply necessary to insert the authorized

  16   Sleepless in Seattle DVD into the DVD drive and it will

  17   automatically begin playing.  Then in order to do the

  18   comparison with the DiVX'd that we made, it would be necessary

  19   to skip directly to the film itself, as opposed to watching

  20   the whole opening trailer.

  21            (Video played)

  22            MR. SIMS:  There's the opening trailer.  And Eric

  23   will stop the video and then skip directly to the movie.  And

  24   full screen it.

  25   Q.  Dr. Shamos, is there a difference in perceptual quality




                                                                61



   1   depending on who is doing the laptop screening?

   2   A.  It's very popular with a laptop to be directly on axis, to

   3   be perpendicular to the screen and hopefully in the center of

   4   the screen, which would not be necessary with a TV set.

   5   Q.  Dr. Shamos, can you see the screen and narrate what it is?

   6   A.  I could do it if I came down there, but.

   7            THE COURT:  Come on down.

   8   A.  Well, this is the opening scene of Sleepless in Seattle

   9   and I think we are going to look at this until just about the

  10   opening credits begin to see a variety of different kinds of

  11   scenes.

  12            This is a long shot.  Then we are going to take a

  13   closeup of human faces and some exceptional detailing in the

  14   movie, which is achievable with DVD.

  15   Q.  If you would, as we go along just point out the qualities

  16   of the picture that you think are worth pointing out.

  17            THE COURT:  Let's not turn up the sound.

  18   A.  Later on, we can see the shrubbery in the background is

  19   shown.  There's a high degree of details with the flowers back

  20   here and for, if it's in focus, which that is, this is not the

  21   highly detailed also with the shrubbery.

  22            Then there's a point in this scene where a reflection

  23   appears in the glass over there of exceptionally high detail.

  24   In general, because of the DVD quality, everything is of a

  25   high degree of sharpness.




                                                                62



   1            THE COURT:  Have we seen enough of this one?

   2            THE WITNESS:  I think that's sufficient.

   3   Q.  Now, Dr. Shamos, can you have Eric copy by the way of

   4   Sleepless of Seattle is Exhibit 2?  Can you have him play the

   5   version of Sleepless in Seattle that came through the DeCSS?

   6   A.  Wait.  Please remove the authorized DVD from the drive.

   7   Take it out, and put it off to the side.

   8            THE COURT:  The record will reflect that it has been

   9   removed.

  10   A.  And leave the DVD open and please place the DiVX'd file

  11   that we created.

  12            It is possible that upon close examination to find

  13   certain effects in here that are referred to as artifacts

  14   which are differences between the DVD quality and the DiVX'd

  15   quality.  I'll try to point out some of them, although it's

  16   extremely difficult to find them.

  17            We've conducted numerous lay experiments in which we

  18   asked people to come in the room and tell whether or not this

  19   was a DVD or DiVX.

  20            THE COURT:  That's obviously hearsay.

  21            THE WITNESS:  Eric, if you see any artifacts that I'm

  22   missing, please point them out.

  23            MR. HERNSTADT:  We object.

  24            THE COURT:  No, sustained.  Objection sustained.

  25            The flowers look substantially identical from the way




                                                                63



   1   they looked on the DVD.  And we can look again at the

   2   reflection in the glass that I pointed out earlier.  It's the

   3   same.

   4   A.  That reflection is substantially the same.  I thought I

   5   spotted a couple of artifacts in the back area.  This wall

   6   should be a constant texture and color.  There's some tiny

   7   changes where a little bit red showed up and it was time

   8   varying.  So, there was something obviously wrong because the

   9   wall itself was not changing or moving during that time.

  10            In general, one can look at large areas of constant

  11   color and see motion where there shouldn't be motion and I'm

  12   not seeing that right now, but that did happen with the wall

  13   behind a little bit earlier.

  14            THE COURT:  O.K.  You may go back to the witness

  15   stand.  Thank you, Dr. Shamos.

  16            (The witness resumes the stand)

  17   BY MR. SIMS:

  18   Q.  Dr. Shamos, do you have an opinion as to the quality

  19   available to viewers in terms of perceptual quality of the

  20   DiVX'd DeCSS version as compared to the store-bought version?

  21            MR. GARBUS:  Your Honor, I'm going to object.

  22            It seems to me that this is certainly not within the

  23   area of his expertise.

  24            THE COURT:  I'm going to receive it for what it's

  25   worth, but I understand your point, Mr. Garbus.  It's really a




                                                                64



   1   question for me to decide anyway, I think to the extent it's

   2   material.

   3   A.  There are many different compression ratios one might

   4   choose in order to make a DiVX.  So, I don't think it's

   5   possible to make a general statement that DiVX is comparable

   6   in quality or not comparable in quality to a DVD.

   7            What I think we've just demonstrated and it's not my

   8   opinion, but anybody, including the Court, who observed it

   9   that at this compression ratio, 5.67 on this movie, that the

  10   quality of the DiVX was nearly indistinguishable from the DVD

  11   except possibly to an expert.

  12            MR. SIMS:  Your Honor, I would like to offer Exhibits

  13   112, 113, 114B, 114C, 114D, 114E, 114A, 2, and 111; 111 being

  14   the -- I believe being the Sleepless in Seattle DiVX DeCSS

  15   version.

  16            THE COURT:  Well in what form does that manifest

  17   itself?

  18            MR. HART:  We've burned that to CD-ROM.

  19            THE COURT:  Where is it?

  20            MR. SIMS:  Eric, do you have this -- I'm sorry.

  21            MR. GARBUS:  Your Honor, I presume since I don't know

  22   how that was made that we could save that for

  23   cross-examination, so I can reserve my right, and with respect

  24   to the other documents that are going in, I've previously made

  25   an objection, which I believe the Court has sustained with




                                                                65



   1   respect to that which is hearsay, so that subject to that

   2   continuing objection, the documents I will permit them to go

   3   in.

   4            THE COURT:  Well, the others are the screen shots;

   5   right?

   6            MR. GARBUS:  I thought 112 was going in.

   7            THE COURT:  Right, these are screen shots.

   8            MR. GARBUS:  Which has information on it.

   9            THE COURT:  I'm just trying to find out what they

  10   are.

  11            MR. SIMS:  They are, your Honor, for example, the FM4

  12   materials and as you've indicated and it was certainly our

  13   intention they're offered, not for the truth of particular

  14   statements therein, but as the -- they provided the

  15   instructions that Dr. Shamos followed.

  16            THE COURT:  I understand.  So, Plaintiff's 112, 113

  17   and 114A through E and 2 are received.

  18            (Plaintiff's Exhibits 112, 113, 114A through 114E,

  19   and 2 received in evidence)

  20            THE COURT:  I'm going to reserve on 111.

  21            112 to 114A are received subject to the same

  22   limitation as before and I take it fundamentally, Mr. Garbus,

  23   the point here is if maybe in a better analogy, if somebody

  24   tells you the combination to the vault at Chase Manhattan,

  25   your repetition of that doesn't prove that's the combination




                                                                66



   1   to the vault.  Your testimony that somebody gave it to you,

   2   you went there, you tried the combination and the vault

   3   opened, that's evidence.

   4            MR. GARBUS:  I agree, your Honor.  Thank you.

   5            (Continued on next page)

   6

   7

   8

   9

  10

  11

  12

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25




                                                                67



   1   BY MR. SIMS:

   2   Q.  Dr. Shamos, by the way, how was the content of the

   3   Sleepless in Seattle on Exhibit 111 placed onto that CD-ROM?

   4   A.  Yes, Eric went out yesterday and purchased a CD-ROM

   5   burner, an external CD-ROM burner that could be attached to

   6   the Sony laptop.  We have the burner with us here in court

   7   today.  He connected it and I was present during the process

   8   as the CD-ROM was burned with the DiVX box.

   9            MR. GARBUS:  Can we at the lunch break examine both

  10   the CD-ROM and the burner that was utilized to make this?

  11            THE COURT:  I take it there is no objection.

  12            MR. SIMS:  No objection.

  13            THE COURT:  Certainly.

  14            MR. GARBUS:  And of course the exhibit itself.

  15   Q.  Now, Dr. Shamos, let me move to a related subject which is

  16   the electronic transfer of movies that have been obtained by

  17   the process you have testified to over the last hour or so.

  18            First, did you attempt to obtain DiVX motion pictures

  19   from other websites?

  20   A.  We did.

  21   Q.  What did you do?

  22   A.  I had Eric go on internet relay chat into the chat room

  23   pound detective investigation, which is recommended by FM4.org

  24   as a source of DiVX investigation.

  25   Q.  What is Internet relay chat?




                                                                68



   1   A.  That's a program and facility that allows people on the

   2   Internet to communicate via the keyboard with one another.

   3            MR. GARBUS:  I guess I have a continuing objection to

   4   things that this witness did not do but that other people did,

   5   even if Mr. Burns is his assistant.

   6            THE COURT:  Before I know what the point of the

   7   testimony is, I don't know whether it's appropriate under 703,

   8   I don't know whether it's being offered for the truth and to

   9   what extent, and so it's really very difficult for me to deal

  10   with this in the abstract.  If we get to a specific point on

  11   which you want to make a point, feel free to make it, but I

  12   can't do it in the abstract.

  13            MR. GARBUS:  Thank you.

  14            THE WITNESS:  If there is a pending question, I need

  15   it repeated.

  16   Q.  No, I'm getting a new question.  Thank you.  What led you

  17   to decide to try to obtain a DiVX'd motion picture off the

  18   internet?

  19   A.  Well, that is what Mr. Hart asked, whether we could

  20   successfully do that.

  21   Q.  And what did you ask your assistant, if anything, to do to

  22   obtain such a film?

  23   A.  Go on internet relay chat and try to find somebody who

  24   would be willing to furnish us with a DiVX.

  25   Q.  And did he do so?




                                                                69



   1   A.  Yes.

   2   Q.  Did he do so under your supervision?

   3   A.  He did so under my direction.  I was not present for the

   4   entire Internet relay chat session.

   5   Q.  How do you know that he obtained a motion picture that had

   6   been DiVX'd as a result of his engaging in the Internet relay

   7   chat?

   8   A.  Yes, because a log was made of the Internet relay chat,

   9   which is one of our exhibits, and I have no reason to believe

  10   that that log was fabricated.  And it resulted in the transfer

  11   of DiVXs in both directions between us and the person who was

  12   willing to supply a DiVX.

  13   Q.  Let me show you what has been marked as Exhibit 115A.

  14            MR. SIMS:  Your Honor, in the book there are two

  15   pages.  We are only offering one, and I am handing the

  16   reporter and the witness that.

  17            THE COURT:  Mr. Garbus?

  18            MR. GARBUS:  I would just like to see that exhibit.

  19            I think as I understand this now, it's more

  20   appropriate for cross.

  21            THE COURT:  All right.  Thank you.

  22   Q.  Could you identify 115A, please.

  23   A.  Yes, 115A is a print-out of the log of the Internet relay

  24   chat session in which we obtained the movie the Matrix from

  25   another individual on the Internet.




                                                                70



   1   Q.  I want to point out a few aspects of 115A and ask you to

   2   identify what they indicate to you.

   3   A.  Yes.

   4   Q.  First, there is a session start.  What does that reflect?

   5   A.  Okay.  What happens is on Internet relay chat one goes

   6   into a chat room where many people can read and see on their

   7   screen what people are doing and what people are typing.

   8            MR. GARBUS:  I don't want to persist in the

   9   objections.  I understand this witness's testimony, he didn't

  10   do this, he didn't do the Internet chat, his expert did it.

  11   So far as I know from his deposition, this witness has never

  12   been on the Internet chat room.

  13            MR. SIMS:  Your Honor, right now I have the witness

  14   explaining what a session log of an Internet chat session

  15   looks like.  I believe he is qualified.

  16            THE COURT:  If he is qualified to do that.

  17   Q.  Dr. Shamos, what is the time on the top line signal?

  18            THE COURT:  Look, let me ask this before that.

  19   What's the basis of your knowledge about Internet relay chat

  20   and what session start and the other indications on this page

  21   is?

  22            THE WITNESS:  In my courses I teach various Internet

  23   protocols.  Internet relay chat is one I teach.  I'm not a

  24   regular user of Internet relay chat myself.

  25            THE COURT:  All right.  Overruled.  Go ahead.




                                                                71



   1   Q.  What does the session start time reflect?

   2   A.  Let me explain how it works.  Initially when one goes into

   3   a chat room, that gives many people on the Internet the

   4   ability to simultaneously communicate with one another.

   5            Once two of them decide they would like to continue

   6   an interaction privately, that's what "session start"

   7   indicates.  So, the session started when my assistant Eric,

   8   whose name for the purposes of this chat is VaioBoy, engaged

   9   with someone named air row sell, AEROSOL, after having

  10   previously found air sole through the public chat.  So session

  11   start with whether the two of them get down to by and are

  12   going to discuss exchanging DiVXs.

  13   Q.  And VaioBoy refers to the name of the computer that you

  14   and your assistant had purchased?

  15   A.  Well, he had to make up a name or a handle for himself,

  16   and since he was on the Sony Vaio computer, he called himself

  17   VaioBoy.

  18   Q.  Who is eaRoSoL?

  19   A.  I don't know.  EaRoSoL is an individual who was in the

  20   chat room who offered to exchange DiVX with us.

  21   Q.  The person communicating with eaRoSoL as indicated on this

  22   page the handle changes from VaioBoy to VaioKid some way

  23   through this page.  Can you explain what that indicates?

  24   A.  Yes, that's correct.  Approximately one third of the way

  25   down the page there is a change in handle from VaioBoy to




                                                                72



   1   VaioKid, but there is no overt indication of that other than

   2   the fact that the name changes.

   3            What happened there is that the two of them had to

   4   make an agreement as to how the transfer was going to occur,

   5   and at the time Eric was using a wireless card in his

   6   computer.  The wireless card didn't provide sufficient

   7   bandwidth, so he wanted to change over to a land Ethernet

   8   line, and so he had to disconnect out of the chat room.  When

   9   he reconnected, the Internet relay chat didn't recognize that

  10   he had left, and when he attempted to use the same name again,

  11   it instead defaulted to his default name which was VaioKid,

  12   which is what he specified originally at the beginning of the

  13   chat session.

  14            You specify a primary name and a secondary name.  It

  15   automatically defaulted to VaioKid.  He didn't have to do

  16   anything explicit in order to make that happen.  But VaioBoy

  17   and VaioKid are the same person here, they are both Eric.

  18   Q.  Is the work that Mr. Burns did in terms of participating

  19   in this chat and his record to you the sort of thing that

  20   computer science professors and teachers and consultants such

  21   as you are would rely on and do rely on?

  22   A.  Well, I can explain the basis for my reliance.

  23            MR. GARBUS:  It's a bit leading.  I object.

  24            THE COURT:  As to leading, it's overruled.  But I

  25   think that it's still kind of out there in space in terms of




                                                                73



   1   bringing to bear on anything specific here --

   2            MR. SIMS:  I will.

   3            THE COURT:  -- or for what purpose.

   4   Q.  Would you explain the basis of your reliance?

   5            THE COURT:  Start by telling us what you relied on it

   6   for.

   7            THE WITNESS:  I rely on it as being an accurate

   8   transcript of what went on between Eric and eaRoSoL, and I

   9   also look at the language of it and the kind of information

  10   that is being exchanged, the various numbers that are in there

  11   and the fact that at the end of it a DiVX of the Matrix, which

  12   we previously did not have and never accquired from any other

  13   place, existed on the hard drive.

  14            MR. SIMS:  The purpose of this, your Honor, is just

  15   to show that the film --

  16            THE COURT:  I understand.  It's chain of custody

  17   evidence in the electronic era.

  18            MR. SIMS:  Exactly.  Thank you, your Honor.

  19   Q.  Is the chat log accurate and complete?

  20   A.  Well, the chat log is accurate and the chat log is

  21   complete as it records the beginning of the private session

  22   between eaRoSoL and VaioBoy.

  23   Q.  Was there part of the conversation that is not reflected

  24   on 115A?

  25   A.  There is not part of the conversation between the two of




                                                                74



   1   them.  The part of the conversation in which Eric located

   2   eaRoSoL took place over a period of about 20 minutes prior to

   3   this in which he had to find somebody who was willing to

   4   exchange a DiVX with him.  That's not here.

   5   Q.  Why is it that the session log maintained on the computer

   6   omits that portion?

   7   A.  Well, this is a log feature of Internet relay chat.  It

   8   records this log separate.

   9   Q.  And what was the line preceding what is represented here

  10   which led eaRoSoL to participate in the conversation, which

  11   prompted eaRoSoL to participate in a conversation?

  12   A.  Yes.  In my declaration, since the dialog appears to begin

  13   in the middle of nowhere, with this person eaRoSoL suddenly

  14   showing up and saying, sure, etc., it appears to be in

  15   response to a question.  I thought that for counsel and the

  16   Court, that log itself would be confusing, so I asked Eric

  17   what was the line immediately preceding the initiation of the

  18   private chat that would lead eaRoSoL to say "sure."  And that

  19   line was "Anyone have any DiVXs to trade for Sleepless in

  20   Seattle?"

  21            THE COURT:  Well, how do you know that?

  22            THE WITNESS:  I only know it because Eric told me.

  23            THE COURT:  All right.  Well, I think there it is

  24   offered for the truth, and if there is an objection, it's

  25   sustained.




                                                                75



   1            MR. HERNSTADT:  There is an objection.

   2            THE COURT:  Sustained.

   3            MR. SIMS:  If I may, subject to tying it up, I will

   4   put Mr. Burns on the stand for the purposes of asking that

   5   question.

   6            THE COURT:  I have an even better suggestion.  Over

   7   the lunch break, why don't you, Mr. Hernstadt and Mr. Garbus

   8   see if you can't agree that if called he would give that piece

   9   of testimony.

  10            MR. SIMS:  Thank you, your Honor.

  11            MR. GARBUS:  You should know that we had asked over

  12   the weekend to depose him.  We had also insisted that he be in

  13   court today, and we would like to take an opportunity to

  14   depose him.

  15            THE COURT:  He is here.  I am going to deal with that

  16   later.  Discovery is over in this case, but maybe there are

  17   special grounds to permit it.  I will hear that at the end of

  18   the day.

  19            Go ahead, Mr. Sims.

  20   Q.  Did you and your assistant Mr. Burns proceed to download

  21   the Matrix from eaRoSoL?

  22   A.  Yes, as reflected by the log, what happens here is they

  23   are making an agreement on what kind of equipment they are

  24   going to use, what kind of connection they are going to have

  25   and what is going to be traded for what, so this is an even




                                                                76



   1   Steven exchange in which we give up a Sleepless in Seattle and

   2   we receive a Matrix in return.

   3   Q.  Do you know how long it took your assistant to download

   4   Matrix from eaRoSoL?

   5   A.  Yes, it took six hours approximately.

   6            THE COURT:  How do you know that?

   7            THE WITNESS:  I know it in two ways.  He has told me

   8   it, but also I was in my office during the time of the

   9   transfer and was regularly coming into his office saying how

  10   is it going, how is it going, and sometime somewhat more than

  11   six hours after it began I went in and it was finished.

  12            THE COURT:  All right.  On the second basis?

  13            MR. GARBUS:  I object to it.

  14   Q.  Do you know what the technical parameters of the

  15   connection were?

  16   A.  Yes.

  17   Q.  What were they?

  18            THE COURT:  Let me just back up.  Did you observe the

  19   download begin?

  20            THE WITNESS:  No.

  21            THE COURT:  Did you observe it end?

  22            THE WITNESS:  No.

  23            THE COURT:  So whatever you are telling me about how

  24   long it took is what your colleague told you, is that right?

  25            THE WITNESS:  No, it can't be any longer than what




                                                                77



   1   I'm testifying to, because I observed before it began and I

   2   observed after it ended, and that period was approximately in

   3   the range of six hours.

   4            THE COURT:  Mr. Garbus?

   5            THE WITNESS:  It could have been less.  It couldn't

   6   have been more.

   7            MR. GARBUS:  If there is a log, I would like to see

   8   it.  I object to the testimony.  He wasn't there.

   9            THE COURT:  Well, it seems to me that based on what

  10   the witness has just said he has a basis in personal knowledge

  11   at least for the purpose of admissibility for testifying that

  12   it didn't take more than six hours.  I do not accept because

  13   of the hearsay rule his testimony about what Mr. Burns told

  14   him.  That's the ruling.

  15            MR. GARBUS:  Thank you.

  16   A.  So, the technical parameters here were that we believe

  17   that eaRoSoL was in the State of Connecticut and had a cable

  18   modem connection.  The reason for that is the IP address

  19   listed for him here going to --

  20            THE COURT:  Mr. Garbus, excuse me.  Mr. Garbus?

  21            MR. GARBUS:  Objection.

  22            THE COURT:  Sustained.  That answer is stricken.  I

  23   don't even think it was responsive to a question.  Mr. Sims?

  24   Q.  Do you have any information or way to calculate the

  25   technical parameters of eaRoSoL's connection?




                                                                78



   1   A.  Well, we better be specific about what technical

   2   parameters we are talking about.  If you are talking about the

   3   bandwidth available to eaRoSoL, then we can only surmise.  If

   4   you're talking about the actual bit rate that was achieved

   5   during the transfer, that's easy to measure because we know

   6   how many bits were transferred and how long it took to do

   7   that.

   8   Q.  What was the effective bandwidth of the transfer of the

   9   Matrix from eaRoSoL?

  10   A.  We were getting about 250 kilobits per second.  The way

  11   you calculate that is to take the size of the file that was

  12   transferred, divide by the number of seconds in six hours.

  13            MR. GARBUS:  Your Honor, I suppose we could save it

  14   for cross-examination, but there are so many variables with

  15   respect to that answer, namely what time of day this happened,

  16   what were the various media, what time did the upload start.

  17            THE COURT:  I think you should save it for cross.  I

  18   appreciate your being helpful on this point, but I'm well

  19   aware a lot of things affect transfer rates.

  20   Q.  Dr. Shamos, you testified that you knew from your personal

  21   presence in the room at various points that the transfer of

  22   the film took approximately six hours, that is, transfer of

  23   the Matrix.

  24   A.  Yes.

  25   Q.  Was anything else being transferred on that line at the




                                                                79



   1   same time?

   2   A.  There was a simultaneous transfer in both directions.  We

   3   were transferring Sleepless in Seattle up to aeRoSoL, and

   4   eaRoSoL was transferring the Matrix down to us simultaneously.

   5   Q.  And within that six hour period were both films

   6   transmitted?

   7   A.  Yes.

   8   Q.  What is the Internet connection that your assistant had

   9   during the transfer?

  10            MR. GARBUS:  If I may, with respect to both films

  11   being transmitted I presume that comes from information from

  12   Mr. Burns.

  13            THE WITNESS:  No, that comes from my observation

  14   after having entered the room after Mr. Burns was finished.

  15            THE COURT:  Go ahead.

  16   Q.  What Internet connection did your assistant have during

  17   this transfer and how do you know that?

  18   A.  He was in his office with this machine connected to CMU's

  19   100 megabit switch network.  The limiting factor in this

  20   transfer obviously --

  21            MR. GARBUS:  I object.  That is not the Internet

  22   connection.

  23            THE COURT:  Look, Mr. Garbus, I understand that's

  24   your cross-examination point, but it isn't an objection.  It's

  25   not a ground for objection.  If a witness says that I observed




                                                                80



   1   someone transfer heroin, it is not a proper objection to say

   2   no, he didn't.

   3   Q.  Dr. Shamos, can you perform a demonstration similar to the

   4   one that was done a few moments ago of the authorized store

   5   bought DVD copy of the Matrix with the DiVX copy that you and

   6   your assistant testified to downloaded from eaRoSoL?

   7   A.  Yes, in exactly the same manner.  It will start with an

   8   authorized DVD of the Matrix and show a scene that is

   9   completely different in nature from the scenes in Sleepless in

  10   Seattle.  The quality of DiVXing depends on various factors

  11   including the original scene that is being transferred.  So,

  12   for example, scenes that have a high degree of action are

  13   difficult to compress because the scene is changing so

  14   quickly.  And the Matrix in distinction to Sleepless in

  15   Seattle has a lot of very fast action, bullets flying and

  16   rotary blades, so we will take a look at that one.

  17   Q.  I am going to hand up Exhibit 115D and ask you if you know

  18   what this is.

  19   A.  Yes, 115D is a CD-ROM that was burned again using the

  20   CD-ROM burner attached to the same Sony laptop, and it

  21   contains the DiVX of the Matrix that we obtained from eaRoSoL.

  22   Q.  Were you in the room yesterday when that burning took

  23   place?

  24   A.  Yes, I was.

  25            MR. SIMS:  And I am going to hand to Mr. Burns, if I




                                                                81



   1   might, Exhibit 2.34.  It's one of the DVDs in Exhibit 2, a

   2   store bought copy with a cellophane wrapper of Matrix.

   3            THE COURT:  2.34?

   4            MR. SIMS:  Well, Exhibit 2 is on the Exhibit list,

   5   and there were a number of DVDs and we will supply you with --

   6            THE COURT:  What was the Exhibit 2 that I already

   7   admitted without any qualification?

   8            MR. HART:  Sleepless in Seattle.

   9            MR. SIMS:  I will supply that, your Honor.

  10            THE COURT:  Let's get that straightened out at the

  11   lunch break.

  12            MR. GARBUS:  Here again the burned CD I will have a

  13   chance to look at it over the lunch break, and the burner.

  14            THE COURT:  Yes, of course.  We will take a brief

  15   comfort break.  Five minutes.

  16            (Recess)

  17            THE COURT:  Just for your guidance, we are going to

  18   break for lunch at 12:15 and resume at 2 to give you a little

  19   more time, Mr. Garbus, to examine the disks, so I will be in a

  20   position to file the opinion by 2 o'clock.

  21            MR. GARBUS:  I should say also, your Honor, with

  22   respect to the disks, I think we got them this morning.  I

  23   don't know.  We will take a look at it.  It's absolutely clear

  24   to me that we will probably need some time.

  25            MR. HERNSTADT:  The disks that you were given are




                                                                82



   1   different than the disks that we were given.  They were burned

   2   at a different time, so we would like to compare them all.

   3   That's all.

   4            THE COURT:  All right.  You will have that

   5   opportunity.

   6            MR. HERNSTADT:  Thank you, Judge.

   7            THE COURT:  All right, Mr. Sims.

   8   BY MR. SIMS:

   9   Q.  Dr. Shamos, could you and your assistant perform a

  10   comparison of the exhibit of the Matrix that has just been

  11   marked as an exhibit, the store bought copy of the Matrix that

  12   has been marked, so that the Court can look at that and then

  13   look at the DiVX copy of the Matrix obtained from eaRoSoL.

  14   A.  Yes, we can do that the same way we did Sleepless in

  15   Seattle if we go down to the laptop.

  16            MR. SIMS:  With the judge's permission, we will

  17   surround the Sony computer and you can narrate.

  18            THE COURT:  If there is going to be a lot more of

  19   this -- this is it?  Because I was going to suggest you agree

  20   on a monitor so we don't have to rearrange the courtroom.

  21            MR. SIMS:  We have set that one up so it will read

  22   like a TV screen.

  23            THE WITNESS:  What is happening now is Eric has

  24   inserted the film the Matrix, the authorized DVD of the Matrix

  25   into the DVD drive.




                                                                83



   1            THE COURT:  That's Exhibit 2.34, as I understand it,

   2   right?

   3            MR. GARBUS:  Your Honor, if you want, given the fact

   4   that we have already been through this process once, if it

   5   makes it easier to now look at it off the screen.

   6            THE COURT:  If that's okay with you, we will do it

   7   that way.  This exhibit is 2.34.  That's the store bought copy

   8   of the Matrix.  We are going to mark the disk itself before

   9   the day is out.

  10            And I take it, counsel, just for my guidance, if I

  11   take these disks and I stick them in the disk drive in my home

  12   computer which I got from mail order just like everybody else,

  13   they should play, right, and I can look at them on my own

  14   screen.

  15            MR. SIMS:  I'm going to ask Dr. Shamos to answer that

  16   question.

  17            THE WITNESS:  They will play if you have a compliant

  18   player.

  19            THE COURT:  Well, I have no idea.

  20            MR. SIMS:  We have some computer experts here.

  21            For the record, the copy of Sleepless in Seattle

  22   which is store bought is 2.28.  There is in your binder a

  23   photocopy of the cover.

  24            THE COURT:  2.38?

  25            MR. SIMS:  2.28.  Sleepless in Seattle.




                                                                84



   1            THE COURT:  Okay.  Thank you.  So the record will

   2   reflect that it is 2.28 that I received earlier, not 2.

   3   Proceed.

   4   BY MR. SIMS:

   5   Q.  Mr. Burns, I notice that you have broken the seal on the

   6   store bought copy of the Matrix and put it into the hard

   7   drive.  Dr. Shamos, would you continue the demonstration.

   8   A.  Yes.  Please start it by just closing the CD-ROM door.

   9            Now, we have chosen a portion of the movie that's

  10   particularly difficult to compress, one that has a lot of

  11   action and scene changes.  So, if you would go to, when it

  12   starts, to the chapter that we have decided to display,

  13   although we are perfectly prepared to display any portion of

  14   the movie --

  15            THE COURT:  I am going to come down anyway, because

  16   my eyes aren't that good.

  17   A.  What will happen is there is not only a lot of action but

  18   numerous special effects are also taking place.

  19            THE COURT:  Lower the sound, please.

  20            (DVD played)

  21   Q.  Dr. Shamos, when you want it switched over, just tell me.

  22   A.  I think that's enough.

  23            Now, if you could attempt to find the same place in

  24   the DiVX that was obtained from eaRoSoL and play that, please.

  25   I am going to attempt to point out to the Court the DiVXs




                                                                85



   1   artifacts that I see in the frame.  There are some.  There are

   2   more than there are in Sleepless in Seattle.

   3   Q.  Eric, will you take the DVD out -- let the record reflect

   4   that the DVD was removed and that the DVD door is open.

   5            THE COURT:  It so reflects.

   6            Would you pause it?  Pause it, please.

   7            MR. GARBUS:  Even a third suggestion, even if it's

   8   possible, if we can watch it here and there at the same time.

   9   Is that possible?  If that's possible, then you could see the

  10   difference between the two technologies.

  11            THE COURT:  It's one or the other right now?

  12            MR. HART:  Yes.

  13            MR. GARBUS:  Is there a way of setting it up so you

  14   can watch both simultaneously?

  15            THE COURT:  Let me ask you this.  I was serious about

  16   the question I asked before.  Does anybody have any objection

  17   to my looking at these two things on my own home computer and,

  18   if not, is there any reason to suppose that that will produce

  19   an appropriate conclusion, whatever it is?

  20            MR. GARBUS:  Can we think about it?

  21            MR. SIMS:  It will take us a moment to find the right

  22   spot.

  23            (DVD played)

  24   A.  In looking around for artifacts, I am looking for any

  25   large flat areas of the screen where things are changing that




                                                                86



   1   should not be changing.  It would be difficult here to see the

   2   rain spilling down on the walls.  However, there are some

   3   places where you can see some things.

   4            It's possible that a real videophile would be able to

   5   see the real artifacts, but I haven't been able to see them.

   6            MR. GARBUS:  It seems to me, since I am familiar with

   7   the Matrix and I looked at this one, I can clearly see the

   8   differences without -- and it seems to me it would be

   9   appropriate for the Court at some time to look at the store

  10   bought and then look at this DiVX one, and then I think the

  11   Court can see the difference between the two at the same time.

  12            I don't know how the Court now looking at this and

  13   see the difference in the shadows and the texture unless you

  14   have seen the original one 35 time.

  15            THE COURT:  35 times is a considerable investment for

  16   this movie.  This is not Gone With the Wind.

  17            MR. GARBUS:  Have you seen that 35 times?

  18            THE COURT:  I assure you not.  Okay.  Are we done?

  19   Q.  Dr. Shamos, am I correct that the two demonstrations we

  20   have just seen, the two side by side demonstrations, one

  21   relating to Sleepless in Seattle, one relating to the Matrix,

  22   in each case compared to the store bought one is a film which

  23   has been subject to DiVX, is that correct?

  24   A.  Yes.

  25   Q.  And you have indicated for the record the extent you have




                                                                87



   1   some or some not difference in perceptual quality in your own

   2   view.  If we had looked at the DeCSS version before DiVX was

   3   applied, what would have been the comparison in your opinion?

   4   A.  Well, it would have been identical to the store bought

   5   DVD.

   6            MR. SIMS:  Your Honor, I would like to offer 2.34 and

   7   115D, the comparison of the videos we have just been through.

   8            MR. GARBUS:  I assume I will have a chance to look at

   9   the copy.  I will object to it until I have a chance to see

  10   it.

  11            THE COURT:  I will receive it subject to a motion.

  12   And as far as a side-by-side comparison, if you think that's a

  13   appropriate, set it up and I will do it, not the whole movie,

  14   but a comparable segment, whatever segment you want.

  15            MR. GARBUS:  Thank you.

  16   Q.  Now, Dr. Shamos, let me turn to the subject of file

  17   transfer times.  Did you and your assistant Mr. Burns proceed

  18   to make further inquiry into the amount of time it would take

  19   to transfer DiVX copies of the Matrix?

  20   A.  Yes, we did a couple of experiments on the CMU network.

  21   Q.  CMU refers to?

  22   A.  Carnegie Mellon university.

  23   Q.  Okay.  What did you do?

  24   A.  Well, we used both the 10 megabit per second and the 100

  25   megabit capability at CMU, and we were able to transfer the




                                                                88



   1   Matrix.  It took approximately 20 minutes to transfer it at 10

   2   megabits and approximately 3 minutes to transfer it at 100

   3   megabits.

   4   Q.  Now, what is the extent to which either 100 megabits or

   5   the other number you just gave me are available throughout the

   6   United States in universities or Internet service providers

   7   for example.

   8            MR. GARBUS:  I would object to that.

   9            THE COURT:  I want to hear a foundation.

  10   Q.  Dr. Shamos, are you familiar and in connection with your

  11   teaching do you have occasion to teach the present and

  12   expected extent of bandwidth capacity in the United States

  13   Internet, I mean in the Internet available in the United

  14   States?

  15            THE COURT:  Restate the question, please.

  16   Q.  Dr. Shamos, do you teach and lecture with respect to

  17   Internet bandwidth developments?

  18   A.  Yes.

  19   Q.  And to whom?

  20   A.  To both my university students and the corporations to

  21   whom I give training.

  22   Q.  Are the transfer times you have just indicated, 20 minutes

  23   using -- how many megabits was that?

  24   A.  10.

  25   Q.  10, and 3 minutes using 100, are those fast transfer times




                                                                89



   1   based on your knowledge?

   2   A.  Yes.

   3            MR. GARBUS:  I object to it.  The foundation was

   4   insufficient.

   5            THE COURT:  Overruled.

   6   A.  Yes, they are fast.  The reason I say that is that

   7   Carnegie Mellon University has a high degree of network

   8   capability not found at all other universities.

   9   Q.  What is available to the students in the dormitories at

  10   Carnegie Mellon?

  11   A.  They get 10 megabit.

  12   Q.  And to your knowledge is that unusual among universities

  13   and colleges in America?

  14   A.  No, it's very typical, because basically the lowest speed

  15   that Ethernet runs at is 10 megabit these days.

  16   Q.  Is Carnegie Mellon unique in having a 10 megabit

  17   connection?

  18            THE COURT:  Hold it.  You say the Internet runs a

  19   minimum of 10 megabits per second, but the fact is a lot of

  20   the world is doing this with 56K modems and slower.

  21            THE WITNESS:  Correct.  I didn't say the Internet

  22   runs at that speed.  I said Ethernet, which is being used

  23   purely within the university network.

  24            MR. GARBUS:  I also do note there has been no

  25   foundation for these last answers.  In other words, I don't




                                                                90



   1   know what he teaches in class, I don't know what he knows

   2   about universities.

   3            THE COURT:  The last answer was directed to Carnegie

   4   Mellon.

   5            MR. GARBUS:  Right.  But prior to that it wasn't.

   6            THE COURT:  And I sustained that objection or I cut

   7   off the line of testimony.  So, now I assume what I'm getting,

   8   unless I hear otherwise, is his personal knowledge of what is

   9   available at the institution he works at.  I'm glad he knows

  10   that.  I don't know what I have, but I'm glad he knows that.

  11            You do know that, I take it, of your own knowledge?

  12            THE WITNESS:  I do.

  13            THE COURT:  Okay.  Let's talk about Carnegie Mellon.

  14   Q.  You testified that 10 megabits is available to the

  15   students at Carnegie Mellon?

  16   A.  In their dormitories.  In general we have 100 megabit

  17   available in classrooms and offices and ten megabit in the

  18   dormitories.

  19   Q.  Do you lecture with respect to the growth of bandwidth in

  20   recent years and expected future increases?

  21   A.  Yes, it's of exceptional interest to my corporate

  22   education clients.

  23   Q.  Have you lectured on those subjects to Morgan Stanley and

  24   the MacKenzie Company?

  25   A.  Yes.




                                                                91



   1   Q.  Do you expect bandwidth available at homes and to people

   2   in universities and at various work sites to continue to grow

   3   over the next few years?

   4   A.  Yes, I do.  There is a manic need for bandwidth.

   5   Companies that have web sites want to deliver more.  People

   6   who use the Internet want faster and faster access, they want

   7   their browsing to be more convenient, so there is a crying

   8   need for additional bandwidth, which many private entities are

   9   attempting to supply.

  10   Q.  Could you describe for the Court the extent to which

  11   bandwidth available in homes has increased over the last 18

  12   months or so?

  13   A.  Yes.

  14            MR. GARBUS:  I would object unless I hear more

  15   foundation.

  16            THE COURT:  I want to hear more foundation.

  17   Sustained.

  18   Q.  Dr. Shamos, have you lectured with respect to the

  19   increases in bandwidth over the last year or so?

  20   A.  Available to the home?

  21   Q.  Yes.

  22   A.  Yes.

  23   Q.  And what is the information that you use in your teaching

  24   based on and sourced from?

  25   A.  It's based on, first, personal experience, since I have




                                                                92



   1   been using, I have been accessing computer networks from my

   2   home since 1970.  I have followed with keen interest the

   3   availability of bandwidth, since I would be a personal

   4   beneficiary of it if I was able to obtain it.

   5            And, of course, in being able to lecture

   6   intelligently on the topic I have endeavored to inform myself

   7   from a variety of sources on what is going on, particularly

   8   various kinds of web pages, news reports and information

   9   posted by the corporations themselves that are involved in

  10   bandwidth provision.

  11   Q.  Do you have a DSL connection at home?

  12   A.  I do now.

  13   Q.  What is a DSL connection?

  14   A.  A DSL connection is a capability provided by a telephone

  15   company that has a line running to a subscriber's house, in

  16   which they are able to give dedicated service to that

  17   subscriber without his having to share it with someone else.

  18   Q.  Is it larger bandwidth than a 56K modem would afford?

  19   A.  Yes.

  20   Q.  And is it increasingly available in some communities in

  21   the United States?

  22   A.  Yes, there is a rush among the telephone companies to make

  23   DSL more available because they are able to charge high prices

  24   for it and make a profit.

  25   Q.  Have you lectured in connection with e-commerce and the




                                                                93



   1   other topics you have testified about with respect to the

   2   projections of increased bandwidth and its impact on commerce

   3   over the Internet?

   4   A.  Yes, every course on e-commerce technology that I teach

   5   has a unit on bandwidth and bandwidth increases.

   6   Q.  And are you familiar with a report or a prediction by

   7   Motorola made a couple of years ago with respect to projected

   8   increases in bandwidth?

   9            MR. GARBUS:  I will object to the next question after

  10   he says, yes, he is familiar with the report.

  11            THE COURT:  Let me find out what the next question

  12   is.

  13   A.  Yes, I am.

  14   Q.  And what is the report you advised me of?

  15            THE COURT:  I guess it's a report by Motorola on

  16   expected increase in bandwidth.

  17   Q.  Yes, with the prediction that Motorola made.  When did you

  18   read it?

  19   A.  Mr. Roberson, who was the chief technology officer of

  20   Motorola in 1998, made a presentation to the Internet

  21   Engineering Task Force.  I have reviewed the powerpoint slides

  22   of his presentation.

  23   Q.  And what --

  24            MR. GARBUS:  Objection.  I have never seen the

  25   powerpoint slides.  Even if I did, it would still be hearsay.




                                                                94



   1            MR. SIMS:  Your Honor, I have --

   2            THE COURT:  I haven't gotten there yet, Mr. Garbus.

   3   Next question.

   4   Q.  And what was the projection in 1998 that Mr. Roberson made

   5   with respect to increases in bandwidth by the year 2000?

   6            THE COURT:  Now, Mr. Garbus.

   7            MR. GARBUS:  I think I would like to object.

   8            THE COURT:  All right.  This you are offering for the

   9   truth, right?

  10            THE WITNESS:  No, I believe.

  11            THE COURT:  Now wait a minute.  I know you went to

  12   law school, but I have enough lawyers in this courtroom.

  13   Mr. Sims.

  14            MR. SIMS:  Your Honor, this is historical.  He is

  15   going to testify that there was a projection in 1998 and he is

  16   going to testify to the present state of the world, and I

  17   don't think that's hearsay.  I think that's testimony that

  18   goes to the --

  19            THE COURT:  Okay.  So you are not offering whatever

  20   Mr. Roberson said two years ago for the truth of what Mr.

  21   Roberson said.  In fact you are offering it for the purpose of

  22   proving how wrong it was.  Is that right?

  23            MR. SIMS:  I'm not offering for the purpose of its

  24   truth at the time, yes.

  25            THE COURT:  Overruled.




                                                                95



   1   Q.  What was the projection Mr. Roberson, CTO of Motorola,

   2   made in 1998?

   3   A.  In 1998, before the Internet Engineering Task Force, he

   4   predicted that for early home adopters -- and an early home

   5   adopter is someone who is ready willing and able to buy the

   6   latest new thing that is made available, but of course it has

   7   to be made available to the home, as opposed to the more

   8   conservative people or people with insufficient wallets who

   9   wait for a while either for prices to come down or for the

  10   technology to be proven -- so, for early home adopters, he

  11   predicted that in the year 2000 seven megabits would be

  12   available in the home.

  13   Q.  In the year 2000, based on your knowledge and expertise,

  14   is 7 megabits available to homes?

  15   A.  Yes, I have it in my home and it's made generally

  16   available by Bell Atlantic where they make DSL service

  17   available.

  18            THE COURT:  Now, DSL service is not available

  19   everywhere, isn't that true?

  20            THE WITNESS:  Quite right.

  21            MR. GARBUS:  We were given Mr. Shamos's affidavit,

  22   and as I understand what his testimony was going to be, it was

  23   going to relate to the experiment that he performed.  As I

  24   look at the affidavit, he refers in paragraph 31 to available

  25   bandwidths increasing in the United States at such and such a




                                                                96



   1   rate, and I would just ask whether or not he has any

   2   documentation?  I can save that for cross, I suppose.

   3            THE COURT:  Okay.  Thank you.  Mr. Sims?

   4            MR. SIMS:  Yes.

   5   Q.  Dr. Shamos, what would happen if large numbers of CMU

   6   students attempted to transfer DiVXs at the same time?

   7   A.  Well, if they were attempting to do that at the CMU

   8   network, they would of course clog the network.  Every network

   9   has finite capacity, and if people use it up indiscriminately,

  10   then by clogging the network, the available transfer rates, as

  11   observed by the people attempting to do the transfer, would

  12   become slower and slower and slower, until they became

  13   frustrated and would cease to engage in such activity.

  14   Q.  You testified a few minutes ago that students --

  15            THE COURT:  Essentially the same principle as

  16   everybody trying to drive in in the morning on the FDR Drive,

  17   right?

  18            THE WITNESS:  Yes, I think congestion is an apt

  19   analogy.

  20   Q.  You testified a few moments ago with respect to a 20

  21   minute download within the CMU network available in the

  22   dormitories, is that correct?

  23   A.  Yes.

  24   Q.  Now, do you believe the result of that test reflects

  25   practical and not merely theoretical results?




                                                                97



   1   A.  Yes, at that rate we were getting approximately a third of

   2   the available bandwidth.  We were getting nowhere near 100

   3   percent of it.

   4   Q.  To what extent?

   5            THE COURT:  I don't understand your answer.

   6            THE WITNESS:  Well, if conditions had been perfect,

   7   and there had been no one else on the network, we might have

   8   been able to achieve triple the speed, so it would have taken

   9   under seven minutes instead of 20.  But because we made no

  10   effort to try to achieve perfect conditions but just use the

  11   network in its condition at the time, we got approximately a

  12   third of the theoretical maximum.

  13            THE COURT:  So, is it correct for me to understand

  14   that in order for you to achieve this 20 minute transfer rate,

  15   using the 10 megabytes per second capability at Carnegie

  16   Mellon, you were using a third of the whole system?

  17            THE WITNESS:  No, we were using a third of the

  18   capacity of the switch that our machine was connected to.

  19            THE COURT:  Okay.

  20   Q.  So the record is clear, is it 10 megabits?

  21   A.  Yes.

  22   Q.  Not 10 megabytes.

  23   A.  Right.

  24   Q.  Now, do you believe that a 10 megabit connection is widely

  25   available today?




                                                                98



   1   A.  It's widely available.

   2            MR. GARBUS:  I object.

   3            THE COURT:  Sustained.  This is not a matter for

   4   religious testimony.  This is presumably objectively knowable.

   5   Q.  Do you have any information with respect to whether 10

   6   megabit connections are available today other than at CMU?

   7   A.  Yes.

   8   Q.  What is that information?

   9   A.  First of all, let's just talk within a university, without

  10   talking about going out on the Internet.  You basically can't

  11   get LANS these days that run at less than 10 megabits.  It's

  12   the Ethernet standard capacity.  So universities that provide

  13   local area networks to their students all have 10 megabit.

  14   Q.  Is it common for major universities to have local area

  15   networks for their students?

  16   A.  Yes.

  17   Q.  To what extent do you have information with respect to the

  18   availability of that kind of connection outside of

  19   universities?

  20   A.  Well, outside of universities there are numerous

  21   corporations that have that capacity and greater.  Where you

  22   don't get that capacity is typically in the home.

  23            MR. GARBUS:  I would object to the foundation, your

  24   Honor.

  25            THE COURT:  Overruled.




                                                                99



   1   Q.  Based on your teaching and your experience in the

   2   institute of e-commerce --

   3            THE COURT:  Let me go back to that ruling.  You are

   4   not seriously disputing, Mr. Garbus, are you, that lots of

   5   corporations in the United States have networks with greater

   6   than 10 megabit or megabyte capacity per second?

   7            MR. GARBUS:  I don't know.

   8            THE COURT:  Well, maybe you ought to talk to your

   9   technical advisors and come back to me on that.  If that's

  10   seriously in dispute, I am prepared to strike the answer, but

  11   I took that as a given.

  12            MR. GARBUS:  Thank you.

  13   Q.  And based on your experience teaching e-commerce issues,

  14   teaching of e-commerce and Internet connections, what do you

  15   see as the implications of fast Internet connections and

  16   increased bandwidth for copyright owners of motion pictures

  17   released on DVDs?

  18   A.  Well, I think it's clear what is going on in the music

  19   industry.

  20            MR. GARBUS:  I object to the question, your Honor.

  21            THE COURT:  Overruled.  I am going to hear it,

  22   Mr. Garbus.  You obviously have arguments and

  23   cross-examination.

  24   A.  It's clear what has gone on in the music industry, that

  25   compressed audio files are being made available and are being




                                                                100



   1   traded back and forth among people and being acquired from

   2   archives of such things and are being used to replace the need

   3   to purchase music from other sources.  The difference between

   4   audio and watching movies is of course that movies are much

   5   longer and, therefore, are represented by longer files.

   6   Furthermore, they have video in addition to audio, and that

   7   also increases the size of the files, and therefore the

   8   transfer time for these things is larger.

   9            However, with increases in internet capacity and

  10   bandwidth availability to the home and other places, it's

  11   completely clear to me that exactly the same thing is going to

  12   happen with videos as has happened with Napster.  In fact the

  13   entire movie industry is attempting to explore video on

  14   demand.  They want to be able to sell you the movies directly

  15   to your home if it can be done in a secure manner.

  16   Q.  Other than your experience that you have testified to

  17   concerning the particular Internet relay chat that Mr. Burns

  18   had, do you have reason to believe, and do you have an opinion

  19   based on your experience and teaching that trading in digital

  20   copies of DiVX films is growing?

  21   A.  Yes.  I have an opinion and the opinion is it sure is.

  22            MR. GARBUS:  Objection.  I object to the question and

  23   the answer.

  24            THE COURT:  I am going to take it for what it's

  25   worth, but obviously, Mr. Sims, the better the foundation the




                                                                101



   1   the more persuasive it is.

   2            MR. SIMS:  Let me hand up Exhibit 116B, which we have

   3   given to the defendants.

   4   Q.  Dr. Shamos, what is this document?

   5   A.  This document is a print-out of a number of pages obtained

   6   from the website iSONEWS.

   7   Q.  Was it printed out under your direction?

   8   A.  Yes.  I pointed you to it, and together we printed out the

   9   pages.

  10   Q.  When did we do that?

  11   A.  Yesterday.

  12   Q.  Now, is iSONEWS a website?

  13   A.  Yes.

  14   Q.  And what part of the iSO website do these pages represent?

  15   A.  ISONEWS is a place where people may obtain information

  16   about the existence of various movies in different kinds of

  17   formats, so we went to iSONEWS and asked what it knew about

  18   DiVXs.

  19   Q.  Does it organize the different kinds of materials for

  20   which information is provided into various formats?

  21   A.  Yes, it does.  DiVXs is in their own separate category,

  22   and we looked only at DiVXs, and the DiVXs in the terminology

  23   of iSONEWS had been "released."  That doesn't mean released by

  24   Hollywood.  That means released by the pirates who were

  25   descrambling them and DiVXing them.  This lists.




                                                                102



   1            MR. GARBUS:  Objection.

   2            THE COURT:  I couldn't hear you, Mr. Garbus.

   3            MR. GARBUS:  I object to this statement.

   4            THE COURT:  Overruled.

   5   A.  And the way the DiVX section of iSONEWS is organized, is

   6   it shows you by each month, starting in January 2000, which

   7   movies have become available for trading on the Internet

   8   through the DiVX format.  What it shows -- unfortunately this

   9   is on the last page, SMS68.  It shows that in January 2000 no

  10   releases were found.  But on the preceding page, SMS67, this

  11   is the list of DiVXs from February where there were

  12   approximately nine available.  Then in March it appears as

  13   though a couple of hundred became available.  And if you

  14   include everything from the zero in January through the July

  15   listing -- and of course we are not even at the end of July --

  16   the total exceeds 650, which I understand to be more than 10

  17   percent of all DVDs available in the United States.

  18            THE COURT:  All right.  We are breaking for lunch

  19   here, and I obviously know that Mr. Garbus has the word

  20   "hearsay" at the tip of his tongue, and you might think about

  21   it over lunch, Mr. Sims.

  22            (Luncheon recess)

  23

  24

  25




                                                                103



   1            A F T E R N O O N   S E S S I O N

   2            2:00 p.m.

   3   MICHAEL SHAMOS, resumed.

   4            THE COURT:  Sorry for the delay.  Let's continue.

   5   DIRECT EXAMINATION Continued

   6   BY MR. SIMS:

   7   Q.  Dr. Shamos, I believe the last question had to do with

   8   explaining what you see in Plaintiff's Exhibit 116B, which was

   9   this printout of a list of titles of films on iSONEWS.  Have

  10   you completed your answer?

  11            MR. GARBUS:  Excuse me, your Honor.  We did not at

  12   the beginning of trial discuss the whole question of exclusion

  13   of witnesses.

  14            THE COURT:  No, we didn't.  Nobody brought it up.

  15            MR. GARBUS:  I would ask that all witnesses be

  16   excluded from the courtroom, if they are going to then

  17   testify.

  18            THE COURT:  Mr. Sims?

  19            MR. SIMS:  Your Honor, I think this is the sort of

  20   case that doesn't involve who did what to whom when and when

  21   the accident happened.  So, I don't think it's necessary.

  22            THE COURT:  It's not an optional matter under the

  23   Rule.

  24            MR. SIMS:  If it's not an optional matter --

  25            THE COURT:  If there's anybody who may be a witness




                                                                104



   1   in this case in the courtroom, they are going to have to wait

   2   outside until their testimony is concluded one by one.  So, if

   3   there is anybody in the courtroom, you are out.

   4            If you would like, folks, you can use the jury room,

   5   because we obviously don't have the jury.  It should be open.

   6            MR. SIMS:  One moment, your Honor.

   7            THE COURT:  The Rule, of course, allows each side to

   8   have one designated representative of a party.  I think it's

   9   Rule 613, folks.

  10            MR. SIMS:  Your Honor, Mr. Gold -- can Mr. Gold be

  11   excused to get our representative back, Ms. Kean?  Thank you.

  12            THE COURT:  Yes.  That's the wrong rule.  It's 615.

  13   BY MR. SIMS:

  14   Q.  Dr. Shamos, I think you were testifying about what you

  15   understand and see in Exhibit 116B.  Have you completed your

  16   answer?  Do you recall?

  17            THE COURT:  I'm not sure he started.

  18            MR. SIMS:  O.K.

  19   Q.  Why don't you explain what 116B is?

  20   A.  O.K., I think I explained that, just to review it quickly

  21   that this was a printout of pages made from the iSONEWS web

  22   site under the section hyper letter linked DiVX'd and this

  23   appears to constitute a list, at least by its own term, it

  24   says it constitutes a list of DiVXs that have been "released

  25   month by month since January of 2000," in sum total exceeding




                                                                105



   1   650 of them, which I then testified it was my understanding

   2   that that constitutes more than 10 percent of all DiVXs -- of

   3   all DVDs available in the United States.

   4            THE COURT:  Mr. Garbus?

   5            MR. GARBUS:  I have made an objection to that on the

   6   grounds of hearsay.

   7            THE COURT:  I am sure you are offering that one for

   8   the truth; right, Mr. Sims?

   9            MR. SIMS:  The number that I want in, your Honor, is

  10   the number of films on this list and as to that, I know that

  11   the witness counted them up himself because I watched him do

  12   it.

  13            THE COURT:  But how do I know that these films are

  14   actually out there?

  15            MR. SIMS:  I think he's testifying to the number of

  16   films on the list and not whether they are actually out there.

  17   And I think that --

  18            THE COURT:  What is the relevance of a list of things

  19   unless they are out there?

  20            MR. SIMS:  I believe, your Honor, that we'll tie it

  21   up and we'll show you that it's relevant over the next few

  22   moments.

  23            THE COURT:  Well, I will take it subject to

  24   connection, but obviously its relevance depends on your

  25   producing evidence, competent evidence sufficient to persuade




                                                                106



   1   me that, in fact, these movies are out there.

   2            MR. SIMS:  I believe that I will be able to connect

   3   it up for relevant purposes.  It may not be that precise fact,

   4   your Honor.

   5            THE COURT:  All right.  Mr. Garbus' objection is well

   6   taken at this point.

   7   BY MR. SIMS:

   8   Q.  Dr. Shamos, look, if you would, at page SMS66 toward the

   9   back of this.  And do you see a film on March 14th identified

  10   with that date and the word "ant"?

  11   A.  Yes, I do.

  12   Q.  Did you click on anyplace on that line and obtain further

  13   information?

  14   A.  Yes, if you click on the icon on the extreme right-hand

  15   edge of the page, which looks like a little notebook, then

  16   that calls up a page of information about that particular

  17   film.

  18            MR. SIMS:  If I may approach, your Honor, may I

  19   hand -- I'm not sure this is in the books, 114F.

  20            THE WITNESS:  It's in the book.

  21   Q.  Is this the printout of the information you obtained when

  22   you clicked on the word "ants" on page SMS66 of iSONEWS?

  23   A.  Yes.

  24   Q.  Now, does anything on 114F suggest to you -- let me

  25   rephrase that.




                                                                107



   1            THE COURT:  While you are thinking about that, let me

   2   say for the information of counsel that I have just signed an

   3   order denying the motion put out by the defendants and as soon

   4   as the copy machine does its job, you will have copies.

   5            MR. GARBUS:  May we have an appropriate stay to go to

   6   the Second Circuit?

   7            THE COURT:  Denied.

   8            MR. SIMS:  I'll come back to that in a moment, Dr.

   9   Shamos.

  10   Q.  Have you formed an opinion about the feasibility of

  11   locating and downloading DiVX'd decrypted DVDs from the

  12   Internet?

  13   A.  Yes.

  14   Q.  What is that?

  15            MR. GARBUS:  I object to that.

  16            THE COURT:  Grounds?

  17            MR. GARBUS:  I don't know -- there's no foundation

  18   for it that he's an expert in this area and he's finding stuff

  19   on the Internet.

  20            THE COURT:  Excuse me?  You dropped your voice.

  21            MR. GARBUS:  He's not an expert of finding materials

  22   on the Internet.  It's a factual matter.

  23            THE COURT:  Overruled.  Overruled.

  24   Q.  Before you tell me what your opinion is, tell me what it's

  25   based on?




                                                                108



   1   A.  I have several bases for it.  One is the personal

   2   experience in observing the result of the Matrix having been

   3   exchanged over the Internet and the apparent availability of

   4   other films that we could obtain by communicating with pound

   5   on the pound DiVX chat room and also the existence of iSONEWS

   6   and the pointers that it gives to 650 movies which have been

   7   ripped and are available in DiVX format now on the Internet.

   8   Q.  Does the information you printed on No. 114F point back to

   9   the instructions you used with respect to making the DiVX'd

  10   decrypted copy of Sleepless in Seattle?

  11   A.  Yes, it does.

  12   Q.  Where?

  13   A.  Well, we can do it a couple of ways.  I can point you to

  14   it directly now or we can just go through it in order.  But it

  15   says, approximately two-thirds or three-quarters of the way

  16   down on the second column, back space, BCKSPC sends personal

  17   greetings/props to he can prog of FM4 for help on rip

  18   techniques.

  19            Decoding this for humans, it seems to mean that the

  20   person who ripped this particular movie into DiVX'd format

  21   obtained instructions from how to do so from FM4.org which, of

  22   course, recommends that step 1 be DeCSS.

  23   Q.  And is FM4 the web site you went to and obtained

  24   instructions from and followed in connection with the

  25   experiment you testified about this morning?




                                                                109



   1   A.  Yes.

   2   Q.  What is your opinion about the feasibility of locating and

   3   downloading DiVX'd decrypted DVDs from the Internet?

   4            THE COURT:  The question is compound.  Ask it in

   5   separate parts.

   6   Q.  What does -- what is your opinion of the feasibility of

   7   locating DiVX'd decrypted DVDs from the Internet?

   8   A.  My opinion.

   9            MR. GARBUS:  I object to it.

  10            THE COURT:  Let me just review the question again.

  11            Overruled.  I will take it for what it's worth.

  12   A.  My opinion is that if one goes to Internet relay chat, it

  13   is relatively easy to do it.  If one attempts to contact the

  14   people who list themselves on iSONEWS, it's much more

  15   difficult.

  16   Q.  What is your opinion as to the feasibility of downloading

  17   DiVX'd decrypted DVDs from the Internet?

  18   A.  Well, since we did it, I could testify that it's feasible.

  19   Q.  Have you formed an opinion of the likelihood that the

  20   incidence of decryption using DeCSS and compression of

  21   authorized DVDs is on the rise?

  22   A.  Yes.

  23   Q.  What is that opinion based on?

  24   A.  The opinion --

  25            MR. GARBUS:  Objection.




                                                                110



   1            THE COURT:  Overruled.

   2            Again, your point goes to the weight, Mr. Garbus.  I

   3   do understand your point.

   4   A.  My opinion -- could you read the question back?

   5   Q.  Yes, what is your opinion based on and the opinion I'm

   6   referring to and I haven't yet asked you what that opinion is

   7   is whether you have an opinion of the likelihood that the

   8   incidence of decryption using DeCSS in compression of

   9   authorized DVDs is on the rise?

  10            MR. GARBUS:  Objection.

  11            THE COURT:  Same ruling.

  12   Q.  What is that opinion based on?

  13   A.  The opinion is based on the increase in Internet bandwidth

  14   that has both been observed and predicted.  The trends in the

  15   music industry which are basically on a parallel with this one

  16   and also on the rise month by month, in huge rise month by

  17   month in the number of titles mentioned on iSONEWS as having

  18   been DiVX'd ripped.

  19   Q.  What is your opinion?

  20   A.  My opinion is that it's on the rise.  I believe that as

  21   long as there's a DVD out there, the people who are ripping

  22   them won't stop until they're all ripped.

  23   Q.  Have you formed an opinion as to the role that DeCSS has

  24   played in the availability of these decrypted compressed DVDs

  25   available on the Internet?




                                                                111



   1   A.  Yes.

   2            MR. GARBUS:  I'll object.

   3            THE COURT:  Overruled.

   4   Q.  What's the basis for that opinion?

   5   A.  The basis for the opinion is in examining the web sites on

   6   the Internet that give people advice and instructions on how

   7   to obtain a DiVX'd copies of movies from DVDs, the tool --

   8   DeCSS is frequently listed as the tool of choice.  It's listed

   9   so on FM4 and on other web sites.

  10            Not only that, credit is given by several people on

  11   iSONEWS which appears to state that they have used or

  12   benefited from advice from FM4, which is precisely to use

  13   DeCSS.

  14            MR. GARBUS:  I also object on the grounds that

  15   everything he has just said, I gather, was based on other

  16   people who have said.  It's also a hearsay objection.

  17            THE COURT:  So far all he's given is the basis for

  18   his opinion.  He hasn't told us the opinion, although I'm sure

  19   you have a heads up on what it will be.

  20   Q.  Dr. Shamos, what is your opinion as to the role that DeCSS

  21   is likely playing in the availability of decrypted compressed

  22   DVDs on the Internet?

  23            MR. GARBUS:  I object to the question.

  24            THE COURT:  I'm going to hear the answer, Mr. Garbus,

  25   but I understand your point and I'm by no means sure that it




                                                                112



   1   is reliable evidence.

   2   Q.  Dr. Shamos?

   3   A.  My opinion is that it plays a major role because it's an

   4   extremely easy-to-obtain tool and easy-to-use tool and a

   5   highly-recommended tool.

   6   Q.  So far as you know, is there any reliable way to ascertain

   7   whether any particular DiVX'd unscrambled motion picture

   8   available on the Internet or obtained from the Internet is the

   9   result of DeCSS?

  10   A.  I don't know of such a way of making that determination.

  11   Q.  Is there any other descrambling mechanism other than DeCSS

  12   that you consider a more -- a more feasible way, an easier way

  13   of obtaining a DiVX'd DeCSS film other than DeCSS?

  14   A.  Well, I'm not aware of any, but I've given in deposition

  15   testimony that I don't have deep familiarity with the other

  16   methods.

  17            MR. SIMS:  Your Honor, I'd like to offer Exhibits

  18   115A, which is the session of the Internet relay chat which

  19   shows the provenance of the copy of Matrix that was obtained

  20   by Dr. Shamos.

  21            MR. GARBUS:  I object to both of these documents on

  22   the grounds previously stated.

  23            MR. SIMS:  I think maybe the record should get the

  24   second one that I'm offering before --

  25            THE COURT:  Yes, I don't know what the second one is




                                                                113



   1   yet.

   2            MR. SIMS:  And the second one is 116B, which is the

   3   list of -- from iSONEWS and is offered, not for the fact that

   4   these particular films can be obtained, but for the fact that

   5   they are listed as having been obtained in the increasing

   6   availability that the iSONEWS exhibit reflects.

   7            MR. GARBUS:  I don't have to repeat my objection.

   8            THE COURT:  I'm going to take them for what they are

   9   worth.

  10            (Plaintiff's Exhibits 115A and 115B received in

  11   evidence)

  12            MR. SIMS:  I'm told there's one exhibit that I left

  13   off and it's the one on the stand; 114F.  I would offer that

  14   as well.  114F, the "ants" piece, there's a stipulation of

  15   authenticity between the attorneys, your Honor, and it's -- I

  16   offer it.

  17            MR. GARBUS:  I object to that on the grounds that it

  18   is hearsay, also.

  19            THE COURT:  Here, I think you are not offering it for

  20   the truth.

  21            MR. SIMS:  No, it is available.  Dr. Shamos knows

  22   it's available and it advises people of tools, including DeCSS

  23   to obtain -- to unscramble and transmit this.

  24            MR. GARBUS:  I object on the grounds of hearsay.

  25            THE COURT:  Look, in part, it's obviously offered and




                                                                114



   1   I think it was explicitly indicated by the witness to be one

   2   of the bases of an opinion and certainly to that extent, it's

   3   admissible.

   4            I'm not sure looking at it that it really is offered

   5   for a hearsay purpose, but I will certainly consider that and

   6   if we ever get to the point of post-trial briefing or closing

   7   arguments, I am simply going to take that into account and

   8   what I typically do in non-jury trials is not get too hung up

   9   on the hearsay rule on something like this, but rather simply

  10   make clear when I rule in the case what I have relied on and

  11   what I haven't because if I ultimately don't rely on this, it

  12   doesn't matter.

  13            So, I'm going to take these three exhibits, but I'm

  14   going to take it on that understanding that if the defendants

  15   ever want any further clarification, they are certainly at

  16   liberty to make a motion to strike further along in the case.

  17   And if I have concluded at that point that it really is being

  18   offered for a hearsay purpose, and it really is hearsay, then

  19   I will strike it.

  20            MR. SIMS:  Your Honor, that concludes this witness'

  21   testimony.

  22            If I could have a few minutes to address the question

  23   of Mr. Burns that had been raised earlier?  Mr. Hernstadt and

  24   I have spoken at a little bit at length on this.

  25            MR. HERNSTADT:  Your Honor, I think it's -- well, we




                                                                115



   1   haven't raised the question of Mr. Burns at this point, so.

   2            THE COURT:  I'm not sure I understand what you are

   3   all saying to me.

   4            MR. SIMS:  We had offered the -- I'm sorry.  May I

   5   have a moment, your Honor?

   6            (Pause)

   7            MR. SIMS:  Your Honor, I've completed the

   8   examination.

   9            THE COURT:  Pardon me?

  10            MR. SIMS:  I've completed the examination.

  11            MR. HERNSTADT:  The question of Mr. Burns, I think on

  12   cross-examination, it will be very clear we need to have his

  13   deposition and he needs to be a witness in this case.  I don't

  14   know.  I'm told Dr. Shamos has concluded with his testimony

  15   that there isn't anything to address on that, but we are happy

  16   to do it now, if your Honor wishes.

  17            THE COURT:  Well, if it's not clear before you cross

  18   this witness whether there's anything to address on the other

  19   one, why don't I hear it now.  Let's just go ahead with the

  20   cross-examination.

  21            MR. HERNSTADT:  I think it will all be clear.

  22            Your Honor, there is one other issue before we start

  23   cross-examination.  We've notified the plaintiffs that

  24   Mr. Stevenson, Frank Stevenson, one of our declarants is

  25   actually in New York and he's going to be here until tomorrow.




                                                                116



   1            I think we mentioned that to your Honor as well and

   2   we sent him letters and there's nothing new about this.  We'd

   3   like to take his testimony while he's here, if that's

   4   possible.

   5            THE COURT:  I will hear him out of order.

   6            MR. HERNSTADT:  O.K.  We can give them an opportunity

   7   to meet with him tonight to take his deposition, if they want,

   8   or just to talk to him, if they want, and we can take him

   9   tomorrow.  He's leaving tomorrow.

  10            THE COURT:  Mr. Gold, any problem?

  11            MR. GOLD:  Yes.  This was a witness that was

  12   designated approximately one week to one and a half weeks

  13   after we were done naming witnesses.  They've known that

  14   Mr. Stevenson -- I think he submitted an affidavit before the

  15   preliminary injunction motion was decided.  But --

  16            THE COURT:  Well, not before the preliminary motion

  17   was decided.

  18            MR GOLD:  After the preliminary injunction, but it

  19   was months ago.  So, this isn't a new person that they've run

  20   into and I don't understand why we would be naming witnesses

  21   so long after the Court's order.

  22            THE COURT:  Mr. Hernstadt?

  23            MR. HERNSTADT:  It's, as we've explained to the

  24   plaintiffs and your Honor, he lives in Oslo and it was just

  25   not clear that he was going to be able to be here and I've




                                                                117



   1   informed the plaintiffs of that on several occasions as well

   2   and it turns out he was able to come for four days and he's

   3   leaving tomorrow.

   4            MR. GOLD:  Well, we had no notice and at the time I

   5   first heard about this witness, I said, O.K., there are planes

   6   to Oslo.  We'll go take his deposition.

   7            THE COURT:  We will discuss this more later on.

   8   Let's proceed with the cross.

   9            Look, it is an expedited case within reasonable

  10   limits.  I'm going to give everybody some leeway.  My concern

  11   is to make sure I have the facts.  That's what I want to get

  12   to.

  13            Now, let me just also be clear before Mr. Garbus

  14   starts.  I'm not sure that the exhibits that were used on the

  15   Matrix demonstration were ever offered.  111, 115D, and my

  16   clerk has passed me a note about 2.34; 2.34 was not Matrix;

  17   2.34 was Sleepless in Seattle, or am I wrong?

  18            MR. SIMS:  I thought I offered them, but I can

  19   certainly give you the proper numbers for each examination.

  20   The first demonstration involved 2.28 and Exhibit 111.  And I

  21   believe I offered them.  If I didn't --

  22            THE COURT:  My notes indicate that I received 2.28.

  23   They don't indicate that 111 was received.  That's the burned

  24   in CD.

  25            MR. SIMS:  That's correct.




                                                                118



   1            THE COURT:  Any objection?

   2            MR. HERNSTADT:  We object to that.  It's not the same

   3   CD that was provided to us.  Ours is different.  And there's

   4   also some mysterious date problems in terms of when it was

   5   created and when it was modified as reflected on the CD.  It's

   6   something that we would want to inquire of the person who made

   7   the CD.

   8            THE COURT:  Look, I've already said you could examine

   9   that CD.

  10            MR. HERNSTADT:  We examined the CD and the CD told

  11   us, I'm actually not sure, are we talking about the CD of

  12   Sleepless in Seattle?

  13            MR. SIMS:  Yes.

  14            MR. HERNSTADT:  That it was created yesterday?

  15            THE COURT:  That's what I think counsel said earlier.

  16            MR. HERNSTADT:  Right.  However, on the hard drive,

  17   it says that that was created on -- yeah, it was created on

  18   July 9th and it was modified on June 26th.

  19            THE COURT:  Whose hard drive?

  20            MR. HERNSTADT:  On the hard drive from the file.  In

  21   other words, the file from which it was burned the other

  22   computer hard drive from which the CD was burned states that

  23   it was created on July 9th and that file was modified on June

  24   27th.

  25            THE COURT:  Right.




                                                                119



   1            MR. HERNSTADT:  That's obviously impossible, so it

   2   makes me wonder.

   3            THE COURT:  I see what you are saying.

   4            MR. HERNSTADT:  We are more alert about the drive.

   5            THE COURT:  I will take 111 subject to a motion to

   6   strike because that, in fact, was the one that was played.

   7            MR. SIMS:  That's correct, your Honor.

   8            THE COURT:  There's no dispute about that; right, Mr.

   9   Hernstadt?

  10            MR. HERNSTADT:  No, your Honor.

  11            THE COURT:  If there's really a question about what

  12   it is, obviously we will get to the bottom of it.

  13            MR. SIMS:  The second demonstration, your Honor,

  14   involved Matrix which was 2.34 and 115A, I believe.

  15            THE COURT:  2.34 is in.  I received that and 115D.

  16   115A was not offered.

  17            MR. SIMS:  115D, your Honor.

  18            MR. HERNSTADT:  Which is the one that's the burned?

  19            MR. SIMS:  115D is the burned Matrix that the

  20   testimony --

  21            THE COURT:  That's already been received; D.

  22            MR. HERNSTADT:  O.K., I didn't understand that it

  23   had.  We object to that as well.  We wanted to look at the

  24   hard drive and at that disk.

  25            THE COURT:  You are welcome to look at that, too.




                                                                120



   1            MR. HERNSTADT:  We have.  And it's even more

   2   problematic because the burned versions that we got have

   3   modified -- dates of modification that are different, June 14

   4   and June 19, and it also on the hard drive says it was created

   5   on July 9th and modified on June 15th.

   6            THE COURT:  Which is a nice trick in anybody's

   7   technology.

   8            MR. HERNSTADT:  Which is a nice trick.

   9            THE COURT:  Same ruling on that.  You can move to

  10   strike it if there's really a problem here.

  11            MR GOLD:  Your Honor?

  12            THE COURT:  Yes?

  13            MR GOLD:  May I have one more sentence on the

  14   Stevenson matter?  If the Court is going to permit his

  15   testimony tomorrow, we'd like a chance tonight to take a short

  16   deposition.

  17            THE COURT:  We'll talk about it at 4:30.

  18            MR GOLD:  Thank you.

  19            THE COURT:  Let's go ahead, Mr. Garbus.

  20   CROSS-EXAMINATION

  21   BY MR. GARBUS:

  22   Q.  Mr. Shamos, directing your attention to this exhibit, it's

  23   not numbered here.

  24   A.  It's numbered on the back on the upper right side.

  25   Q.  106.




                                                                121



   1   A.  Yes.

   2   Q.  Mr. Sims asked you to read the first sentence and the

   3   second sentence of -- under the heading "how can you help"?

   4   A.  I don't think he asked me to read it, but I did read it.

   5   Q.  And what is the third sentence?  Will you read the first

   6   two sentences?

   7   A.  Yes. "While we have every intention of sticking this out

   8   to the end, we have to face the possibility that we could be

   9   forced into submission.  For that reason, it's especially

  10   important that as many of you as possible all throughout the

  11   world take a stand and mirror these files.

  12   Q.  What is the sentence?

  13   A.  Don't do this because you just want to copy DVDs.  That's

  14   not what the -- what this fight is about at all.  This is

  15   about freedom of information.  The right we all still have.

  16   Q.  That's all.  Now, with respect to Exhibit 116B, did you

  17   download any of these films?

  18   A.  No.

  19   Q.  With respect to ants that you testified about before, did

  20   you download ants?

  21   A.  No.

  22   Q.  Tell me how you came to be in this case?  Did Proskauer

  23   approach you?  Did the MPA approach you?

  24   A.  I received a telephone call in the range of a month ago,

  25   maybe a little bit more, from an attorney Mark Litvak, who




                                                                122



   1   works for the MPAA.

   2   Q.  And how did you know him?

   3   A.  How about if I finish the first answer, then I'll answer

   4   the second question?

   5   Q.  Go ahead.

   6   A.  O.K.  And Mr. Litvak said to me, we have a case going on

   7   in New York.  How would you like to help us out like you did

   8   on the "I Crave TV Case"?

   9   Q.  Now, are you finished with your answer?

  10   A.  Yes.

  11   Q.  Was the MPA involved in the "I Crave TV Case"?

  12   A.  Yes, I don't believe the MPAA was a party, but

  13   representing the movie industry, including a huge number of

  14   plaintiffs, it had an involvement.

  15   Q.  And what is your best judgment about the total amount of

  16   fees that you're going to earn as a result of your testimony

  17   in the "I Crave" case and in this case?

  18   A.  The "I Crave" case, the total fees were $20,000.  In this

  19   case, I could make an estimate, but I think it's going to

  20   depend on how long you cross me.

  21   Q.  Let's assume we finish with you by tomorrow at lunch, if

  22   the judge permits that, what would your total fees be?

  23   A.  Yes, probably something in the range of $30,000.

  24   Q.  And how much do you get an hour for your testimony?

  25   A.  I'm not paid for my testimony.  I'm paid for the time that




                                                                123



   1   I put in on the case.  I don't charge a different rate while

   2   I'm up on the stand than I do for background research.

   3   Q.  And it's the same rate if you're flying here or traveling

   4   here?

   5   A.  If I have to have dead time that I can't use for other

   6   purposes, I do bill that; yes.

   7   Q.  Now, and is that rate about $400 an hour?

   8   A.  It's exactly 400.

   9   Q.  Now, when Proskauer first came to you -- pardon me.

  10            When Mr. Litvak first came to you, tell me what you

  11   and he said?

  12   A.  Well, as I testified, he asked me if I would be willing to

  13   help him out again.  And I said, well, I certainly have to

  14   know what the case is all about.  And my recollection is that

  15   he thereupon brought in Mr. William Hart, who's an attorney at

  16   Proskauer, in a conference call with me and the basics of the

  17   case were described to me.

  18   Q.  And were you sent any of the affidavits or pleadings in

  19   the case?

  20   A.  Yes, I was sent a pile of pleadings, documents filed in

  21   the case.  I recall that it was approximately 3 or 400 pages

  22   worth of the material.

  23   Q.  And did you read the affidavit of Dr. Abelson?

  24   A.  I don't recall whether I read the affidavit of Dr. Abelson

  25   then or subsequently, but I have read the affidavit of Dr.




                                                                124



   1   Abelson.

   2   Q.  Who is Dr. Abelson?

   3   A.  Dr. Abelson is a computer scientist at MIT.

   4   Q.  And you described him at the deposition on Monday --

   5   pardon me -- on Saturday as a fabulous computer scientist?

   6   A.  I'm not sure if I used the word "fabulous," although I

   7   would agree with that characterization.  I think I used the

   8   word outstanding.

   9   Q.  Now, did you also read the affidavit of Dr. Teretsky?

  10   A.  Yes.

  11   Q.  And is Dr. Teretsky at Carnegie-Mellon?

  12   A.  Yes.

  13   Q.  And did Dr. Teretsky post DeCSS and CSS on his web site?

  14   A.  He posts DeCSS in course code form and in various other

  15   forms on his web site.

  16   Q.  When you say, he posts it in various forms on his web

  17   site, can you tell me in what forms he posts it?

  18   A.  Yes.  He has the C language source code of DeCSS.  He has

  19   a tee shirt, a graphic image of a tee shirt on which the

  20   source code appears.

  21            He has a graphic image of a page on which the source

  22   code is printed.  He has a version of the algorithm for DeCSS

  23   which has been written in a hypothetical computer language of

  24   Dr. Teretsky's own creation.  He has a version of the DeCSS

  25   source code interspersed with English language commentary and




                                                                125



   1   I think he also has an English language description of the

   2   DeCSS algorithm without any code in it.

   3   Q.  And to your knowledge, can anyone with a computer have

   4   access to that, to Dr. Teretsky's web C page?

   5   A.  Anyone who can access the Internet can access that web

   6   page.

   7   Q.  Do you know how long Dr. Teretsky has had it on his web

   8   page?

   9   A.  No, I don't.

  10   Q.  Has Carnegie-Mellon, to your knowledge, ever suggested

  11   that he take it down?

  12   A.  Not to my knowledge.

  13   Q.  Do you know how many students have downloaded that from

  14   his page?

  15   A.  No, I don't.

  16   Q.  Do you know how many hundreds of thousands of people have

  17   downloaded that from his page?

  18   A.  I would have no way of knowing that.

  19   Q.  Now --

  20   A.  Although it's possible we could get the logs from the CMU

  21   system administrator.  I haven't been asked to do that and I'm

  22   not such an administrator.

  23            THE COURT:  Do you have any knowledge that the

  24   number, in fact, is in the hundreds of thousands?

  25            THE WITNESS:  No, I don't.




                                                                126



   1   Q.  Did you also look at the affidavit of Dr. Appel?

   2   A.  Yeah, I recall scanning it.  I don't recall any details of

   3   it.

   4   Q.  Dr. Appel is at Princeton?

   5   A.  Yes.

   6   Q.  And is he a well-known and respected computer scientist?

   7   A.  Very much so.  He got his Ph.D. at CMU.

   8   Q.  And do you know that Dr. Appel links to Teretsky's web

   9   site?

  10   A.  I didn't know that.

  11   Q.  Do you know who Dr. Ed Felton is?

  12   A.  No, I don't.  I mean, I know that he gave a declaration in

  13   this case that I scanned, but I don't have any independent

  14   knowledge of who he is.

  15   Q.  How about Professor Peterson?

  16   A.  Same.

  17   Q.  Now, you testified yesterday that -- well, let me continue

  18   with you and Proskauer.

  19            So, after you had this first conversation, what then

  20   happens?

  21   A.  Well, I received the documents.  I looked over the

  22   documents, and the reason I asked for the documents was to

  23   make sure that I had at least some material from the defense

  24   so I could understand what the defense's position was.

  25            I was also sent a copy of the order granting




                                                                127



   1   preliminary injunction so I could determine what the judge's

   2   preliminary thinking in this case was.  On that basis, I

   3   decided to participate.

   4   Q.  And you saw the various estimates that the defendants

   5   declarants -- Beckers, Abelson, Felton, Peterson had made with

   6   respect to times transmissions of information over the

   7   Internet?

   8   A.  Well, I have seen that prior to sitting here today.  I

   9   don't recall whether I saw those prior to deciding whether to

  10   enter the case or not.

  11   Q.  And you had seen in their affidavits their testimony

  12   concerning compression, times of compression and times of

  13   transfer, is that right?

  14   A.  Yes.

  15   Q.  Now, did you at some point go to a search engine to see if

  16   you could find a reference to DeCSS?

  17   A.  Yes.

  18   Q.  When did you do that?

  19   A.  I did that before preparing my declaration.

  20            (Continued on next page)

  21

  22

  23

  24

  25




                                                                128



   1   BY MR. GARBUS:

   2   Q.  And which search engine was it?

   3   A.  I used HotBot, H-O-T-B-O-T.

   4   Q.  And what did it indicate?

   5   A.  It indicated a huge number of pages on the Internet that

   6   made reference to the stream DeCSS.

   7   Q.  Do you know of one person who copied illegally a DVD as a

   8   result of any information posted by the defendant in this

   9   case?

  10            MR. SIMS:  Objection.  Calls for a legal conclusion.

  11            THE COURT:  Sustained as to form.

  12   Q.  Do you know of any one person who copied a DVD as a result

  13   of any download from 2600, yes or no?

  14   A.  Of my own personal experience, other than Eric and myself,

  15   no.

  16   Q.  Now, has anyone at the MPA ever told you that they know of

  17   any one person that ever copied a DVD as a result of

  18   downloading material from 2600.com?

  19   A.  I testified in deposition that the sum total of my

  20   conversations with the MPA in my lifetime has been

  21   approximately five minutes, and during that five minutes, no,

  22   they did not communicate that to me.

  23   Q.  What is the sum total of your conversations with the

  24   Proskauer law firm?

  25   A.  Pardon me?




                                                                129



   1   Q.  What is the sum total --

   2   A.  Oh, well, my presence at the Proskauer law firm and

   3   engaged in conversations with people at the Proskauer firm is

   4   probably something like 20 hours, 25 hours.

   5   Q.  And in addition to that, have you sought on the outside to

   6   get any anecdotal information about 2600.com?

   7   A.  Anecdotal meaning what?

   8   Q.  Meaning asking people things, talking to people.

   9   A.  I haven't talked to people about 2600.com.  Any

  10   investigation I did was on the Internet by visiting it myself

  11   and looking for links.

  12   Q.  Did anyone at the Proskauer law firm in the 20 hours you

  13   spent with them ever tell you that a copy was ever made as a

  14   result of a download from 2600.com?

  15   A.  No specific person was identified as having done so.

  16   Q.  Has anyone ever told you that any of the films that are on

  17   Exhibit 116B ever came from any copy that originally came from

  18   2600.com?

  19   A.  No.

  20   Q.  Has anyone ever told you that with respect to Sleepless in

  21   Seattle, that that ever came from a DeCSS download?

  22   A.  No.

  23   Q.  Has anyone ever told you that any of the films contained

  24   on 116B, told you they got there by virtue of the use of

  25   DeCSS?




                                                                130



   1   A.  No.

   2   Q.  Has anyone ever told you that with respect to the Matrix,

   3   that that had DeCCS applied to it?

   4   A.  No.

   5   Q.  Did you ever ask?

   6   A.  No.

   7   Q.  Do you know what the resources of the MPA are?

   8   A.  I don't, but I would assume they are considerable.

   9   Q.  Do you know any studies that the MPA made in November and

  10   October and December of last year in an attempt to determine

  11   when the crack was made?

  12   A.  No.

  13   Q.  Do you remember testifying on Saturday about documents you

  14   had seen concerning the first cracking of CSS?

  15   A.  Yes.

  16   Q.  And to your knowledge, when was CSS first cracked?

  17   A.  Well, if you are willing to allow me to rely on hearsay,

  18   then it would be 1997.

  19   Q.  Now, when you say if I'm willing to allow you to rely on

  20   hearsay, tell me what that hearsay was based on.

  21   A.  You want me to rely on the very same kinds of documents

  22   that you objected to when I attempted to testify to them on

  23   direct.

  24            THE COURT:  Dr. Shamos, you just answer the

  25   questions.  Let Mr. Gold represent his client.




                                                                131



   1   A.  Web pages.

   2   Q.  Where were these web pages?

   3   A.  Out on the Internet, but I accessed them through a website

   4   at Harvard which is maintaining information about this case.

   5   Q.  So, the website at Harvard told you, as I understand it,

   6   that the first CSS crack was in 1997, is that right?

   7   A.  Not quite.  It wasn't the website at Harvard.  It was the

   8   website at Harvard which pointed me to other sources, and in

   9   reading those other sources there seemed to be agreement among

  10   them, there is some dispute, but there is also some agreement

  11   that CSS was first cracked in 1997, ostensibly prior to DeCSS.

  12   Q.  Now, do you know what the original site was that the

  13   Harvard site sent you to?

  14   A.  There were many of them.  I looked at several.  I could

  15   probably reconstruct for you which ones they are.  Some of

  16   them pointed to articles of a scholarly or semischolarly

  17   nature that I had sent to me and therefore I relied on them.

  18   Q.  So, it's been no secret since at least 1997 that CSS has

  19   been cracked, is that right?

  20            MR. SIMS:  Objection.

  21            THE COURT:  Sustained as to form.

  22   Q.  Do you know the way that the MPA searches out websites for

  23   information concerning cracks?

  24   A.  No, that wasn't within the five minutes of conversation.

  25   Q.  Have you ever seen the documents that were given to




                                                                132



   1   Mr. Schuman in this case concerning the MPA's investigation of

   2   the CSS crack?

   3   A.  I have never seen any documents about any MPA

   4   investigation.

   5   Q.  Do you have any idea how much money and investigative

   6   resources the MPA has spent since November in order to

   7   determine whether there is one single person who ever

   8   downloaded and copied a DVD through DeCSS?

   9   A.  I would have no way of knowing that.

  10   Q.  Now, you were talking before a bit about the future.  Is

  11   it fair to say, sir, based on your expertise, that in the

  12   future DVDs will probably replace videotapes?

  13   A.  Yes.

  14   Q.  And why is that?

  15   A.  Because the quality is extremely high, the convenience of

  16   using a DVD is much greater, because one can skip around

  17   arbitrarily inside the DVD, which you can't do easily with

  18   videotape, and because DVD has CSS, and there are content

  19   providers that are more willing to provide their content if

  20   they think it can be protected.

  21   Q.  Do you have any idea of the amount of video sales that

  22   have dropped as the amount of DVD sales have increased?

  23   A.  I don't.

  24   Q.  Do you know when the industry predicts that the videos

  25   will be stopping and DVD market will just take over?




                                                                133



   1   A.  No.

   2   Q.  Let's for a minute get to your study.  By the way, who

   3   told you to perform this particular study?

   4   A.  Mr. Hart.

   5   Q.  This was not an independent research you did at the

   6   university.

   7   A.  No, it itself isn't directly related to my university

   8   research, although I expect I will be teaching about it

   9   afterwards.

  10   Q.  It was a specific experiment for the purposes of your

  11   testifying in this litigation, is that right?

  12   A.  Yes.

  13   Q.  And they picked you out presumably and modestly because

  14   you were knowledgeable in the area.

  15   A.  Yes, I think so.

  16   Q.  And you were given, were you not, precise instructions on

  17   how to carry out this study.

  18   A.  For that part of what I did, I was given precise

  19   instructions.

  20   Q.  Tell me what you mean by "precise," and tell me who gave

  21   you those precise instructions.

  22   A.  Well, I think in my direct testimony I was asked what I

  23   was asked to do in the course of this study, and I listed all

  24   of those instructions, and I thought I identified Mr. Hart as

  25   the person who had asked me to do them.




                                                                134



   1   Q.  And you did exactly everything that Mr. Hart asked you to

   2   do, is that right?

   3   A.  Yes, for that part of the study.

   4   Q.  You even prepared an affidavit and took out any reference

   5   to the New York Times because Mr. Hart told you to take out

   6   that reference, isn't that right?

   7   A.  Well, it didn't occur quite that way.

   8   Q.  Tell me how it -- well, let me ask the question then.

   9            Did you originally prepare a document that made some

  10   reference to the New York Times?

  11   A.  Yes I prepared a computer file on my computer.

  12   Q.  Does the final document that you have filed in this court

  13   contain any reference to the New York Times?

  14   A.  No.

  15   Q.  And was there a conversation between you and Mr. Hart

  16   concerning the deletion of the New York Times from your

  17   affidavit?

  18   A.  Yes.

  19   Q.  Why?

  20   A.  In describing what I did when I went to 2600 News, that

  21   there were a number of sites pointed to by 2600 News, and one

  22   of them was the New York Times, and that wasn't the website

  23   that we obtained the version of DeCSS from, so, one, it seemed

  24   irrelevant to him that I mention the New York Times, but I

  25   think he didn't want the New York Times, because it's a




                                                                135



   1   newspaper, clouding the case up with First Amendment issues.

   2   That's my impression.

   3            THE COURT:  Is that what he said or is that your

   4   impression?

   5            THE WITNESS:  That's my impression.

   6   Q.  No, no.  You testified on Saturday that he used the words

   7   "First Amendment."  Do you remember that?

   8   A.  I recall talking about the First Amendment.  I don't

   9   recall that I said that he said that.

  10   Q.  Who used the words "the First Amendment."

  11   A.  In my deposition testimony I used the words First

  12   Amendment.

  13   Q.  And what did Mr. Hart say about making no references to

  14   the First Amendment?

  15   A.  I don't believe he said anything.  I think he said it

  16   would be better to take out the reference to the New York

  17   Times.

  18   Q.  And you understood why?

  19   A.  I believe so.

  20   Q.  And you did.

  21   A.  I did.

  22   Q.  Why did you put it in in the first place?

  23   A.  I don't know.  I have been reading the New York Times

  24   since I was a kid.

  25   Q.  Speaking about the New York Times, when the Napster case




                                                                136



   1   first came out, was that a matter of great public attention?

   2   A.  Yes.

   3   Q.  And when the DVD case came out, this case, was that a

   4   matter of great public attention?

   5   A.  It appears to have been.

   6   Q.  And hundreds and hundreds of newspapers carried this story

   7   to your knowledge?

   8   A.  Carried this?  I assume that hundreds and hundreds of

   9   newspapers carried this story.

  10            THE COURT:  How many of the hundreds did you read?

  11            THE WITNESS:  I didn't read any.  I just assume that

  12   a story of great public interest would be carried through the

  13   Associated Press.

  14            THE COURT:  If this is really relevant as to how many

  15   newspapers, Mr. Garbus, get on Lexis and find out.  Just as

  16   you didn't want this witness giving me a lot of baloney about

  17   how many people have DSL connections based on some impression,

  18   which is a perfectly valid point you made, I don't think it is

  19   helpful to get the same kind of testimony on this.

  20            MR. GARBUS:  I think this is a different issue.

  21   Q.  2600.com, to your knowledge, did they cover the discovery

  22   of the hack back in November?

  23   A.  I didn't see it back in November.  I would surmize that

  24   they did.

  25   Q.  And how many other websites covered the story, to your




                                                                137



   1   knowledge, if any?

   2   A.  I don't have specific knowledge of any at that time, since

   3   I didn't read it from the website at that time, but I wouldn't

   4   be surprised if the number was significant.

   5   Q.  Have you ever read the Hacker Quarterly?

   6   A.  I have seen pages from the Hacker Quarterly.  I'm not a

   7   regular reader of it.

   8   Q.  Have you seen pages there referring to the CSS hack?

   9   A.  I don't recall whether I have.  I might have actually in

  10   preparation for this case.

  11   Q.  And have you seen any back issues where the Hacker

  12   Quarterly talks about the 1977 hack of CSS?

  13   A.  1997?

  14   Q.  Yes.

  15   A.  No.

  16   Q.  Now, when you went to HotBot, how many references did you

  17   get to sites that had source code or object code?

  18   A.  Let me describe how the search was done.  The search was

  19   not organized nor would have it been feasible to obtain that

  20   very easily.

  21            What I asked for was all web pages that HotBot

  22   indexes which contained the stream DeCSS.  So DeCSS source

  23   code would have come up, articles about DeCSS.  Any use of

  24   DeCSS as an acronym totally outside the context of this case

  25   would also have appeared.  The number was very large.  The




                                                                138



   1   reason I know it was large is that I abandoned looking at the

   2   hits after I got through a few hundred of them.

   3   Q.  When was this again?

   4   A.  This was in preparation for this case, prior to my filing

   5   the declaration.

   6   Q.  Approximately when in June?

   7   A.  Within the last month.

   8   Q.  And at that time did it indicate that 2600.com was posting

   9   the DeCCS object or source code?

  10   A.  When you say "it," if you mean the list of hits?

  11   Q.  Yes.

  12   A.  Yes, I believe 2600.com was one of the hits.  I visited it

  13   and saw that it had references to the source code, but I

  14   didn't see the source code itself on 2600.

  15   Q.  Did you check out any of these sites to see whether or not

  16   there were not merely references to the DeCSS but the actual

  17   object or source code itself?

  18   A.  Yes, I recall visiting a number of sites that had the

  19   source code.

  20   Q.  And how many sites did you visit that had the source code?

  21   A.  A handful, but I would say something like between five and

  22   ten.

  23   Q.  Was that object and source code?

  24   A.  The only place I actually recall seeing the object code at

  25   that time was FM4.




                                                                139



   1   Q.  Now, you know what Infoseek is.

   2   A.  Yes.

   3   Q.  Is that the search engine owned by Disney, one of the

   4   plaintiffs in this case?

   5   A.  I wasn't aware that it was owned by Disney, but I have no

   6   reason to disbelieve it.

   7   Q.  Have you ever gone to Infoseek to see how many postings or

   8   references they had?

   9   A.  I don't use Infoseek.

  10   Q.  Now, you didn't just get the DeCSS access accidentally,

  11   did you, from 2600.com.  You were specifically directed to go

  12   there by the Proskauer firm.

  13   A.  I was specifically directed to go to the 2600 website and

  14   obtain DeCSS from there, yes.

  15   Q.  Do you know of anyone other than you who has ever obtained

  16   the source code or the object code from 2600.com?

  17   A.  I don't know, but I assume that the network administrator

  18   ought to know.

  19            MR. GARBUS:  I move to strike "I assume."

  20            THE COURT:  Stricken after "I don't know."  Mr.

  21   Shamos, just answer the questions.

  22   Q.  Let's get to your test for a moment.  So after you meet

  23   Proskauer, and after you read the affidavits, and after you

  24   and Mr. Hart had this discussion about the First Amendment,

  25   then what happened?




                                                                140



   1   A.  No, this was not after we had the discussion about the

   2   First Amendment.  The test occurred before then.

   3   Q.  Okay.  Tell me about the test again.

   4            THE COURT:  You think you might want to make that a

   5   little more specific.

   6            MR. GARBUS:  Okay.

   7   Q.  You said that the test had several steps, as I remember.

   8   First you had to find DiVX, is that right?

   9   A.  Well, when you say we had to find DiVX, we had to find

  10   #DiVX.  That was one of the steps to engage in a chat, to

  11   engage another DiVX.

  12   Q.  By the way, how long have you been on computers?

  13   A.  Since 1962.

  14   Q.  And how much of your day is spent on computers?

  15   A.  Oh, a normal day it's huge.  More than four hours.

  16   Q.  So it's fair to say that with respect to computers or

  17   surfing or the Internet you are fairly -- and I know you would

  18   say this modestly -- a sophisticated user of computers?

  19   A.  I think so.

  20   Q.  By the way, you mentioned that you teach corporations

  21   also, is that right?

  22   A.  Yes.

  23   Q.  And from that you earn about $700,000 a year?

  24   A.  It may turn out to be that this year.

  25   Q.  And you teach them about computers and other technologies?




                                                                141



   1   A.  Well, it's more specific than that.  I teach --

   2   Q.  Tell us what it is.

   3   A.  I teach courses in e-commerce technology.  That's

   4   typically what the corporations are interested in now.  They

   5   are interested in having their people who have been casual

   6   Internet users learn more about how the Internet works, and so

   7   I give a very concentrated crash course that lasts for two

   8   days, consist of ten lectures.  It's basically a condensed

   9   version of one of our full courses at Carnegie Mellon

  10   University on that topic.  I also give courses to them on

  11   Internet law, and I give a simplified version of the

  12   e-commerce technology course for people who aren't

  13   technologically sophisticated.

  14   Q.  Tell me something about the academic qualifications of

  15   your assistant.

  16   A.  My assistant has completed or is within one course of

  17   completing a dual degree program at Carnegie Mellon including

  18   receiving a degree in computer science.

  19   Q.  Has the computer system in Carnegie Mellon changed very

  20   much with respect to speeds over the last six months?

  21            THE COURT:  I think you need to be more specific

  22   about speeds of what.

  23   Q.  The LAN, local area network, has that changed?

  24   A.  I don't know, but I have not experienced any such change.

  25   Q.  Over how long a period of time?




                                                                142



   1   A.  I believe I have had the same level of network access at

   2   CMU for at least the past two years.

   3   Q.  So that the same levels of speed that exist today with

   4   respect to LAN are the levels of speed that existed two year

   5   ago?

   6   A.  Available to me at CMU, I believe so, yes.

   7   Q.  And with respect to students' availability?

   8   A.  I believe students' availability has not been increased

   9   during that time.

  10   Q.  So, for the last two years --

  11   A.  Well, I'm sorry.  Students in dormitories.

  12   Q.  By the way, how many students does Carnegie Mellon have?

  13   A.  Approximately 5,000.

  14   Q.  And this may sound strange, but did school end June 15th

  15   this year?

  16   A.  School ended actually around the middle of May, but there

  17   are a number of programs that run for 12 months.  The

  18   E-Commerce Institute for example is a 12 month program.

  19   Q.  You say school basically ends in May.  Then when does it

  20   begin?

  21   A.  Late August.

  22   Q.  So, at the time that you did your study school was

  23   basically out.

  24   A.  I don't agree that school was basically out.  The

  25   undergraduate program was in recess.




                                                                143



   1   Q.  And how many students are there in the undergraduate

   2   program?

   3   A.  About 4,000.

   4   Q.  Do you think that based on your expertise that the amount

   5   of usage on the computers when school was out or basically out

   6   is different than when school is in?

   7   A.  Yes.

   8   Q.  Did you ever state in your report that at the time that

   9   you made these studies Carnegie Mellon University was

  10   basically out of school?

  11   A.  I did not so state.

  12   Q.  Did anyone at Proskauer ever ask you about whether the

  13   information you put in the report reflected the normal usage

  14   at Carnegie Mellon?

  15   A.  No, I don't think there is any reference in there about

  16   normal usage.

  17   Q.  Do you have any idea how long it would take to make the

  18   same transmissions in the middle of the school year?

  19   A.  No.

  20   Q.  By the way, wasn't some of this study done after midnight?

  21   A.  Yes.

  22   Q.  And tell me why?  Is there a difference with respect to

  23   the number of people who use the Internet in the middle of the

  24   day and after midnight?

  25   A.  Yes.




                                                                144



   1   Q.  Did you say in your report what time you conducted these

   2   studies?

   3   A.  No.  The studies were conducted at various times during

   4   the day.  I can state that no particular effort was made --

   5            MR. GARBUS:  Can I ask the question?  Judge, may I?

   6            THE COURT:  Yes, of course.

   7   Q.  Did Mr. Hart tell you at what time he wanted these studies

   8   conducted?

   9   A.  No.

  10   Q.  Did you know that to conduct the studies after midnight,

  11   when school is out, would bring you a different result than

  12   conducting these studies when school is in session during the

  13   middle of the day?

  14   A.  Well --

  15   Q.  Just answer that yes or no, please.

  16   A.  Do I know that there is a difference?

  17   Q.  Yes.

  18   A.  Yes.

  19   Q.  So --

  20            THE COURT:  We will take the afternoon break here,

  21   about ten minutes.

  22            DEPUTY COURT CLERK:  All rise.

  23            (Recess)

  24            THE COURT:  The witness has just indicated to me that

  25   if there is any possibility, Mr. Garbus, that you could finish




                                                                145



   1   today, he would be grateful.  And I would be prepared to stay

   2   a little later if that will accommodate him.  I don't know

   3   whether it will or not.  I would do that for anybody.  So, you

   4   will let me know.  Proceed.

   5   BY MR. GARBUS:

   6   Q.  You were mentioning your assistant Eric before.

   7   A.  Yes.

   8   Q.  Did he become your assistant because he was an especially

   9   qualified student in this area?

  10   A.  Well, when you speak of "this area" I can tell you how he

  11   became my assistant.  He is my assistant for two purposes.  He

  12   has worked for me for two and a half years on the Universal

  13   Library project, and in fact his involvement with that project

  14   predated my return to Carnegie Mellon University in 1998.

  15            He was already doing some work as a college sophomore

  16   at the Universal Library, and then I became his college

  17   supervisor and we worked closely together in the last two and

  18   a half years.

  19            When I was asked to become involved in this case, it

  20   clearly involved somebody who was familiar both with the video

  21   technology, the Internet and somebody who had the right

  22   vocabulary to be able to participate in activities resulting

  23   in the collection of DiVXs, and Eric, of all the people I know

  24   at Carnegie Mellon University, was the best suited person to

  25   do that.




                                                                146



   1   Q.  So, it took the two of you highly qualified people in the

   2   middle of the summer, when school was out, in the early

   3   morning hours, approximately 20 hours to download the DVD and

   4   send it, is that right?

   5   A.  That's not quite correct.  As you have stated, obviously

   6   if something took 20 hours, it couldn't have all been in the

   7   middle or early morning hours.

   8   Q.  Thank you.  Now tell me the timing when this started,

   9   because I didn't see it in your report.

  10   A.  We purchased a computer on Friday afternoon, had it back

  11   at the university at 3 p.m. and immediately began the steps

  12   involved at that time.

  13   Q.  Is there any document which indicates you started at 3

  14   p.m.

  15   A.  No.

  16   Q.  Who told you what kind of computer to buy?

  17   A.  No one did.  We needed a computer that was clean and had

  18   the capability to do what we were being asked to do.

  19   Q.  Who?

  20   A.  Mr. Hart.  As I testified, he didn't tell me what kind of

  21   computer to get.  He told me to get a computer that would be

  22   able to do the following things.  We went to Comp USA,

  23   reviewed the ones that were in stock and available and bought

  24   one which could do the job.

  25   Q.  And this was done on the week before the July 4th weekend,




                                                                147



   1   is that right?

   2   A.  That is my recollection.

   3            THE COURT:  So this was the Friday that commenced the

   4   holiday weekend, is that correct?

   5   Q.  Is that right, sir?

   6   A.  I'll have to review.  Yes.

   7            THE COURT:  So this was done in the early morning

   8   hours over the 4th of July weekend?

   9            THE WITNESS:  No, it was -- I --

  10            THE COURT:  You might even have gotten technical

  11   support on the phone.

  12            MR. SIMS:  Your Honor, I think --

  13   A.  Yes, I left for vacation early morning Saturday, July 1.

  14   I wrote the affidavit on June 30, and so I had sent off the

  15   affidavit prior to my leaving for the 4th of July weekend, so

  16   it was all completed before then.

  17   Q.  I'm not clear.  Maybe you answered the question to the

  18   Judge, but I didn't hear it.  So this was done on a Friday?

  19   A.  My recollection is that that's the day that we purchased

  20   the computer.

  21   Q.  Have you ever before been in your lab or in your office on

  22   a July 4th weekend at 3 or 4 in the morning to conduct any

  23   kind of tests?

  24            MR. SIMS:  It misstates the testimony.  The witness

  25   has indicated on Friday, the 23rd.




                                                                148



   1            THE COURT:  Sustained.  Sustained.

   2            THE WITNESS:  Something hardly seems right to me

   3   about this, because if -- June 30 was a Friday.  It's

   4   impossible for us to have purchased the computer the afternoon

   5   on Friday and had all of this completed by Friday.

   6   Q.  What are you referring to, by the way?

   7   A.  The document I'm referring to?  I'm looking at my own

   8   declaration.  So, we must have purchased the computer prior to

   9   that, probably the previous Friday.

  10   Q.  Okay.  And tell me what happens after you purchased the

  11   computer.  I'm sorry to be slow about this but ...

  12   A.  I went through all this on direct.  We purchased the

  13   computer.

  14   Q.  But some of this you didn't go through on direct.

  15   A.  Well, I think I went through the steps but...

  16            THE COURT:  Let's not argue about whether you did.

  17   Let's just do it.

  18   A.  After getting the computer and buying the DVDs at Comp

  19   USA, we immediately returned to Carnegie Mellon University,

  20   set up the computer, connected to the network and went through

  21   all of the steps involved in obtaining DeCSS and running DeCSS

  22   to obtain a DeCSS'd copy of Sleepless in Seattle.

  23   Q.  When you say "we" it's you and Eric together at this time?

  24   A.  Yes.

  25   Q.  So you and Eric buy the computer, you and Eric download




                                                                149



   1   the programs, you and Eric get the DeCSS?

   2   A.  Yes, and we DeCSS'd Sleepless in Seattle.

   3   Q.  Had you ever gotten DeCSS before?

   4   A.  No.

   5   Q.  Had you ever used any of the other programs such as DVD

   6   Rip?

   7   A.  No.

   8   Q.  Do you know what it is?

   9   A.  Yes.

  10   Q.  What is it?

  11   A.  DVD Rip is a program that creates DiVXs from DVD.

  12   Q.  Do you know how long it takes to create a DiVX from a DVD

  13   with DVD Rip?

  14   A.  No.

  15   Q.  Do you know if it's ten times faster than using DeCSS?

  16   A.  No.

  17   Q.  Did you ask anybody at Proskauer whether or not there

  18   weren't other "copying techniques" that were ten to 20 times

  19   faster than DeCSS?

  20   A.  No.

  21   Q.  Was it worth your while to get a free copy of Sleepless in

  22   Seattle, to spend 20 hours working through the night over the

  23   weekend?

  24            MR. SIMS:  Objection.

  25            THE COURT:  Sustained.




                                                                150



   1   A.  Well --

   2   Q.  Can you think of anybody in their right mind --

   3            THE COURT:  Sustained.  I'm afraid of the answer.

   4   Q.  Do you know anything about DOT Stripper?

   5   A.  Yes.  I don't think there is a T in it, but I've heard of

   6   it.

   7   Q.  What does that do?

   8   A.  It appears to be another program that rips DiVX.

   9   Q.  And do you know how long it takes that program to do it?

  10   A.  No.

  11   Q.  Have you ever done it?

  12   A.  No.

  13   Q.  How about your assistant Eric, has he ever done that?

  14   A.  I don't know.

  15            THE COURT:  When you say it rips DiVXs, what exactly

  16   do you mean?

  17            THE WITNESS:  It creates DiVXs from an MPEG2 stream,

  18   video stream.

  19   Q.  You said on Saturday one of the reasons you chose Eric was

  20   because he also knew something about the piracy underground

  21   and where to get information.  Do you recall that?

  22   A.  Yes.

  23   Q.  Tell me what Eric knew and tell me why that was relevant

  24   to this inquiry.

  25   A.  Okay.  Of course in the two and a half years that I have




                                                                151



   1   known Eric we have engaged in many conversations.  He has

   2   occasionally invited me into his office to say something like,

   3   hey, take a look at this.  And in fact only a few months ago,

   4   before I had heard about this case, he hurriedly called me

   5   into his office and said, what do you think of this?  And I

   6   was watching a video movie, and I asked him at what bit rate

   7   it is required for you to get something of this quality, and

   8   he said 500 kilobits, and I didn't believe it and he explained

   9   to me how it was done, and it was a DiVX.

  10   Q.  Is one of the reasons that you chose Eric was because he

  11   had this background of knowing the underground Internet world,

  12   as it were?

  13   A.  That was one of the reasons.  I had to review all of the

  14   people that I knew that I could engage on a relatively rapid

  15   basis on this project because of the time frame, and Eric was

  16   the ideal one.

  17   Q.  Do you know what a ripper is?

  18   A.  I have heard of it.

  19   Q.  Have you ever used it?

  20   A.  No.

  21   Q.  Do you know how long, has anyone ever told you how long it

  22   takes you utilizing that to make a DVD?

  23   A.  No.

  24   Q.  Do you know if it's ten times as fast as DeCSS?

  25   A.  No.




                                                                152



   1   Q.  Have you ever heard of Read DVD?

   2   A.  No.

   3   Q.  Have you ever heard of CSS Cat?

   4   A.  No.

   5   Q.  Have you ever heard of CSS Auth., A-U-T-H?

   6   A.  Not a level where I could say anything about it.  I may

   7   have encountered the word.

   8   Q.  In any event, these things you haven't heard of I presume

   9   you never used?

  10   A.  I presume so too.

  11   Q.  How about CSS Descramble?

  12   A.  No.

  13   Q.  How about something called Anonymous Source, have you ever

  14   heard that term before?

  15   A.  I have heard the term.  I don't know what it means.

  16   Q.  Do you know what the speed of CMU's Internet connection

  17   was two years ago?

  18   A.  I'm assuming that the Internet connection available to me

  19   was probably the same speed that it was two years ago.

  20   Q.  And students?

  21   A.  Students -- everybody at CMU, we have only one gateway to

  22   the outside world, and it's through the Pittsburgh Super

  23   Computer Center, so everybody goes out the same way.

  24   Q.  Would that be the same four years ago both with respect to

  25   CMU Internet speed and LANS?




                                                                153



   1   A.  I don't know.

   2   Q.  Now, with respect to these other universities, do you know

   3   whether or not their Internet speeds have changed or their LAN

   4   speeds have changed over the last four years?

   5   A.  The general trend is that people's LAN speeds and people's

   6   Internet speeds are increasing.  I don't have specific

   7   knowledge about other universities.

   8   Q.  Why is it that CMU's is not if everyone else's is

   9   increasing?

  10   A.  The first question you asked me is over the past two

  11   years.  The second question is over the past four years.

  12   Q.  Let's make it over the last two years.  To your knowledge,

  13   isn't it true that LAN speeds and Internet speeds over the

  14   major universities have not changed?

  15   A.  I don't know that.

  16   Q.  Do you know what Northern Lights is?

  17   A.  Northern Light is a search engine.

  18   Q.  Did you ever look on Northern Light to see whether or not

  19   they had mirror codes or any references to DeCSS?

  20   A.  No, HotBot is my default search engine.

  21   Q.  Would it surprise you to learn that there are over 700,000

  22   references on Northern Light?

  23            MR. SIMS:  Objection.  It assumes facts not in

  24   evidence.

  25            THE COURT:  Well, it's cross.  I mean obviously the




                                                                154



   1   question is no evidence of the facts.

   2   A.  It would not surprise me to learn that there are 700,000

   3   pages on the web that have the stream DeCSS in them.

   4   Q.  Of those 70,000 pages would it surprise you to learn that

   5   300,000 are mirror sites?

   6            MR. SIMS:  That really does assume facts not in

   7   evidence.

   8            THE COURT:  It depends on what would surprise him.

   9   If it surprises him that pigs fly, it doesn't prove that pigs

  10   fly.

  11   A.  It would surprise me because that number seems huge to me.

  12   Q.  Do you have any idea as you sit here today how many sites

  13   in the United States have DeCSS in object or source code?

  14   A.  No.

  15   Q.  As you sit here today, do you have any knowledge about how

  16   many sites outside of the United States have DeCSS in object

  17   or source code?

  18   A.  No.  There are at least some.

  19   Q.  By the way, after you went to your HotBot, did it occur to

  20   you to go to any other search engines?

  21   A.  I did actually go to Google, G-O-O-G-L-E.

  22   Q.  Thank you very much.  And what did Google indicate?

  23   A.  Google indicated a large number of sites having pages

  24   containing the stream DeCSS.

  25   Q.  How many pages?




                                                                155



   1   A.  I don't know.

   2   Q.  More or less than 10,000?

   3   A.  I don't know.

   4   Q.  Did you go to Yahoo?

   5   A.  No.

   6   Q.  Does AOL have a search engine?

   7   A.  I believe AOL licenses a search engine from outside.  A

   8   search capability is available through AOL.

   9   Q.  Did anyone at the MPAA or at Proskauer ever tell you that

  10   the Disney search engines Infoseek and Go link to mirror sites

  11   of DeCSS and CSS?

  12   A.  No.

  13   Q.  Now, do you know the Internet connection from Carnegie

  14   Mellon University to the Internet?

  15   A.  Well, it depends what you mean.  There is a very fast

  16   connection between CMU and the Pittsburgh Super Computer

  17   Center.  The Pittsburgh Super Computer Center routes through a

  18   number of back bones in the United States.  I am not familiar

  19   with the speeds of those back bones, but in general they are

  20   very high.

  21   Q.  Are they the same that existed two years ago?

  22   A.  I don't know.

  23   Q.  When you say it's very fast --

  24   A.  Yes.

  25   Q.  -- do you have any sense of what that is?




                                                                156



   1   A.  Well, CMU is an advanced technological university with a

   2   world wide reputation in computer science.  We try to have the

   3   best stuff and as fast communications as we can rationally

   4   afford.

   5   Q.  Isn't it fair to say that CMU is one of the leading

   6   schools in the United States with respect to this entire area

   7   and has one of the best Internet and LAN connections in the

   8   United States?

   9   A.  Yes, but it's by no means unique.

  10   Q.  Getting back to your test again.  After you downloaded

  11   DeCSS -- and as I understand it, from the time you found the

  12   DiVX until you downloaded the DeCSS was about an hour, 30

  13   minutes for each process.

  14   A.  It was between 30 minutes and an hour.  It was about 45,

  15   the total the first time we did it.

  16   Q.  Then you went to the tutorial, is that right?

  17   A.  Wait a minute.  The first thing that we did is to go from

  18   the DVD to run DeCSS to produce the DeCSS version of the DVD.

  19   That was the part that took 45 minutes the first time.

  20   Q.  Right.  Then what happened?

  21   A.  Then we attempted to make the DiVX by going to --

  22   Q.  Was that at the same time, right afterwards or a different

  23   day different time?

  24   A.  It was later the same day.

  25   Q.  Can you tell me what time that was?




                                                                157



   1   A.  My recollection is that it was late.

   2   Q.  What time?

   3   A.  Well, approximately 10 o'clock at night.

   4   Q.  So, let me see if I understand.  So at 10 o'clock at night

   5   you and Eric went where to do this?

   6   A.  We didn't go anywhere.  We were where we were.  He was in

   7   his office and I was in my office.

   8   Q.  10 o'clock at night.

   9   A.  Yes.

  10   Q.  And had you prior to that time -- what time had you

  11   finished the other process, namely obtaining the DeCSS?

  12   A.  The first Sleepless in Seattle DeCSS was finished in the

  13   afternoon, approximately 5 p.m.

  14   Q.  Let me see.  I think I may be getting confused.

  15            With respect to the first film Sleepless in Seattle,

  16   about what time did you get the DeCSS onto your computer?

  17   A.  About 5 p.m.

  18   Q.  Okay.  And then you started to deal with DiVX at 10

  19   o'clock that night, is that right?

  20   A.  Yes.

  21            (Continued on next page)

  22

  23

  24

  25




                                                                158



   1   Q.  And had you and Eric made an appointment to do it at 10

   2   o'clock that night?

   3   A.  No.

   4   Q.  Why didn't you start it at 5 o'clock as soon as you had

   5   DeCSS?

   6   A.  Because we were both busy with many other things going on

   7   at the same time and I had to spend time preparing some

   8   lectures.  I just wasn't available to do it at that time and I

   9   recall that he had to eat.

  10   Q.  So, it's now 10 o'clock at night.  This is Friday night

  11   and where are you?

  12   A.  Again, I don't recall whether it was Friday night.  That

  13   seems inconsistent with the scheduling.  It might have been

  14   Tuesday night.  I'm going to have to check the sales receipt

  15   on the computer.  That will tell us the date that it began.

  16   Q.  Do you have that with you?

  17   A.  No, it's on my mantle in my bedroom at home.

  18   Q.  Now, so let's assume it's 10 o'clock at night now.  It's

  19   you and Eric, is that right?

  20   A.  Yes.

  21   Q.  Then what happens?

  22   A.  Then what happens is the process of learning how to do

  23   DiVXs begins from FM4.org.

  24   Q.  The process of learning?

  25   A.  Yes.




                                                                159



   1   Q.  This was the first time you had ever done it?

   2   A.  Yes.

   3   Q.  So, you had to learn it?

   4   A.  Well, I certainly had never done it before.

   5   Q.  Had Eric ever done it?

   6   A.  I don't know, but what we wanted to do was to go through

   7   this as if we had done nothing about it, so we wouldn't be

   8   making any implicit use of his expertise.

   9            MR. GARBUS:  I presume Eric is out of the room

  10   because he's a potential witness or we think it's a potential

  11   witness, but pending a resolution of that wish, I would hope

  12   that he's not in the room.

  13            MR. SIMS:  I don't know whether he's in the room or

  14   not.

  15            THE COURT:  He's just leaving.

  16            MR. GARBUS:  Can I hear the last question, please?

  17            (Record read)

  18   Q.  Let me see if I understand?  So, at this point, you don't

  19   know whether he's done it or not, is that right?

  20   A.  That's right.

  21   Q.  So, it may be that prior to this time, he's done it 30

  22   times or never, is that right?

  23   A.  Yes.

  24            THE COURT:  I think we all know what "don't know" is.

  25            MR. GARBUS:  I sometimes do.




                                                                160



   1   Q.  Now, tell me how long did it take you to do the tutorial?

   2   A.  To do the tutorial?  O.K., the process of creating the

   3   DiVX was done in pieces.  There are a number of steps that you

   4   have to remember, as I testified before, using the exhibits.

   5            The most part of the process is merging the audio and

   6   video, which is largely a trial and error process.  The

   7   various steps were broken up.  This wasn't done in 20 hours

   8   consecutively at a time.

   9   Q.  You say it's a trial-and-error process?

  10   A.  Yes.

  11   Q.  The fact that Eric, whatever expertise -- he brought

  12   whatever expertise he had to this, certainly made the trial

  13   faster and the errors fewer, is that right?

  14   A.  Assuming he brought relevant expertise, which I don't

  15   know.

  16   Q.  Now, did you also, as you were going through this, learn

  17   something about the tutorial?

  18   A.  Yes.

  19   Q.  And how long were you on the tutorial?

  20   A.  The tutorial can be read in easily within 15 minutes.

  21   Q.  And you and Eric were both there reading it?

  22   A.  I read pieces of it with him and sat there with him while

  23   we were engaging in some of the steps.  Others, I went off to

  24   my own office and read.

  25   Q.  It would be very helpful if you could just tell me when




                                                                161



   1   "we" means you and Eric or "he" means you and Eric, or

   2   whatever.  Tell me when you're there and where Eric is there.

   3   A.  O.K., of the 20-hour process, my participation in it was

   4   heavy at the beginning and sporadic thereafter until it was

   5   completed.

   6   Q.  So, it's now 10 o'clock.  You had gone through the

   7   tutorial, then what happens?

   8   A.  We began the initial steps together.  We did not complete

   9   the final steps together.  Eric did that.

  10   Q.  Now, you say there are difficulties in synchronization?

  11   A.  Yes.

  12   Q.  And tell me what those difficulties are?

  13   A.  The difficulties are that after applying the tools that

  14   are listed on FM4, you end up with a separate audio track and

  15   a separate video track.

  16            The audio track and video track have to be

  17   synchronized together so that when people are speaking, the

  18   sounds correspond to the movement of their mouths.  There a

  19   are apparently many effects that occur that make it difficult

  20   to cause the synchronization to happen.  In fact, there may

  21   even apparently be some DVDs that one can DiVX properly

  22   because you can't get the synchronization error.

  23            In the particular case of Sleepless in Seattle, we

  24   believe it had to do with the difference in frame rate between

  25   the trailer and the movie proper.




                                                                162



   1   Q.  So, if you can't do that synchronization with respect to

   2   the -- with respect to the DiVX, that means with respect to

   3   certain films, that means DeCSS is useless with respect to

   4   certain films?

   5   A.  No, I don't say that.  Because it's not my understanding

   6   that following the steps from FM4 is the only way to create a

   7   DiVX from a DeCSS DVD.

   8   Q.  To your knowledge then how long -- by the way, had you

   9   ever -- I presume you had never prior to this time attempted

  10   the synchronization process?

  11   A.  No, I never have.

  12   Q.  To your knowledge, had he ever attempted synchronization

  13   process?

  14   A.  I think he had.

  15   Q.  And how many times had he done that?

  16   A.  I don't know.

  17   Q.  So, he was somewhat expert at it?

  18   A.  I'm not sure that it would be right to say he was expert

  19   at it.  He may have had relevant expertise and may have done

  20   it sometimes.  I don't know how many times.  He's generally

  21   familiar with the problem of synching audio and video, that is

  22   true.

  23   Q.  And do you have reason to believe that without Eric, you

  24   would have been able to do the synchronization?

  25   A.  I believe I would have been able to do it.




                                                                163



   1   Q.  And how long would you think -- withdrawn.

   2            How long did the synchronization process take?

   3   A.  About 10 out of the 20 hours.

   4   Q.  And tell me what's involved in that process.

   5   A.  What one has to do is run some tools, try out the result,

   6   pick various pieces of sound track and try and match them up

   7   with the video track, merge them together, take a look after

   8   them, see if they are in ink.  If they aren't, go back, make

   9   an adjustment, do it again.  That's what I meant by "trial and

  10   error."

  11   Q.  Would you agree with me that that's very tough stuff?

  12   A.  It is not fun.

  13   Q.  Not only not fun, it's very, very difficult; isn't it?

  14   A.  Well, very, very difficult is relative.  It's a lot easier

  15   than making the movie in the first place.

  16            MR. GARBUS:  Thank you very much.

  17   Q.  Now, when he was trying to do this for the 10 hours -- by

  18   the way, the synchronization process, if you do DVD rip, do

  19   you have to do that?

  20   A.  I don't know.

  21   Q.  If you do DVD ripper, do you have to do that?

  22   A.  In general, the result is separate audio and video stream,

  23   then you have to synchronize them.  If the result is something

  24   else, then you don't.

  25   Q.  Now, with respect to this 10 hours that he was there, how




                                                                164



   1   much of that time were you there?

   2   A.  I wasn't there during that 10 hours.

   3   Q.  So, you start at 10:00 o'clock at night, I gather he's

   4   working until -- let's say 10 hours would mean 8 in the

   5   morning, is that right?

   6   A.  No, no.  I think I testified that the various pieces of

   7   creating the DiVX'd were done in separate chunks.  They were

   8   not done 20 hours consecutively.

   9   Q.  So, it's 10 o'clock some night, let's say either Tuesday

  10   or Friday.  Let's call it X night.  Then when we go -- let's

  11   call it night No. 1.  Is that all right?

  12   A.  Yes.

  13   Q.  Now, let's go to day No. 2.

  14   A.  Yes.

  15   Q.  Tell me what happens.

  16   A.  I don't recall.  I don't -- there were so many things were

  17   going on at the same time, I don't remember the different

  18   times that I stopped in to Eric's office to find out what

  19   particular step was in process at that time.  I can't put that

  20   together for you.

  21   Q.  So, but on day 2, I'm just having trouble.  It's 10

  22   o'clock at night.  At some time, do you leave that office or

  23   does he leave that office?

  24   A.  It was done in his office, so you would be the one to

  25   leave.




                                                                165



   1   Q.  So, he's there at 10 o'clock on night on day 1.  What time

   2   does he leave the office?

   3   A.  I don't know.

   4   Q.  Are there any notes that are made about when he leaves the

   5   office?

   6   A.  I don't have any.  It's possible that he might, but I

   7   doubt it.

   8   Q.  So, after he leaves the office, then what happens?  Do you

   9   see him the next day?

  10   A.  Yes.

  11   Q.  And what time on day 2 do you see him?

  12   A.  I don't recall.

  13   Q.  And when you see him, has he gone through this 10-hour

  14   process?

  15   A.  No, there are still more steps to do.

  16   Q.  How much has he done the first time that you see him?

  17   A.  My recollection is that when I saw him, I said, how is it

  18   going?  He said, it's going fine.  I said, is it done?  No,

  19   there's a lot to do yet.

  20            My involvement during this process was largely

  21   getting and cajoling and making sure that he was actually

  22   working on it and getting toward a conclusion.

  23   Q.  And when did he have the conclusion of the

  24   synchronization?

  25   A.  I don't recall that either.  However, we can probably




                                                                166



   1   reconstruct it easily because the -- it was right after he

   2   completed it when we attempted to the trade with eaRoSoL.

   3   Q.  And when is that?

   4   A.  So, now I see from the declaration that the log of that is

   5   Tuesday, June 27th.  So, the Fridays that we are talking about

   6   were the week prior to the start of the July 4th weekend.

   7   Q.  So that Tuesday, July 27th, that's day 1?

   8   A.  No, Tuesday July 27th is when we engage in the Internet

   9   relay chat to try to trade the DiVX.  We couldn't trade the

  10   DiVX until we had the DiVX, so it was done by then.

  11   Q.  So, it's June 27th that you're starting to do the chat, is

  12   that right?

  13   A.  Yes.

  14   Q.  Now, how do you know that it took 10 hours from 10:00 p.m.

  15   the night before to the time you do the chat to do the DiVX'd?

  16   A.  I asked Eric how long it took him to do the

  17   synchronization, how much of the 20 hours he spent.  He said,

  18   10 hours.

  19   Q.  And you never saw how many hours he spent at what time or

  20   anything like that?

  21   A.  No.

  22   Q.  And you never asked him for any report, is that right?

  23   A.  I certainly never asked him for any written report.  I

  24   certainly asked him to narrate to me the steps that he took.

  25   Q.  Did you know that you were being asked to prepare this




                                                                167



   1   information for the purposes of filing an affidavit in court?

   2   A.  Yes.

   3   Q.  Did you know that you were being asked to prepare this

   4   information for the purpose of testifying in court?

   5   A.  I assumed I would be called to testify.

   6   Q.  Did anybody at the Proskauer firm suggest to you that you

   7   keep time sheets?

   8   A.  No.

   9   Q.  Did anybody at the Proskauer firm suggest to you that you

  10   use Eric or was that your idea?

  11   A.  They didn't know Eric.  It was completely my idea.

  12   Q.  When for the first time did they learn that your assistant

  13   or associate had participated in this test?

  14   A.  O.K., I think that when Mr. Hart gave me an outline of

  15   what he wanted us -- what he wanted me to do, I said, I'm

  16   going to have to engage an assistant to do this.  And he said,

  17   O.K.

  18   Q.  He didn't say, keep any records?

  19   A.  Yes.

  20   Q.  Of the experiment?

  21   A.  No.

  22   Q.  So, with respect to whether it's 10 hours, 20 hours or 60

  23   hours, all that we have is either your word or your

  24   assistant's words?

  25   A.  That's right, along with individual pieces of documentary




                                                                168



   1   evidence like the IRC log.

   2   Q.  Now, with respect to the IRC log, is the entire log here?

   3   A.  No, I've testified already about exactly how this log

   4   differed from the other log in the creation of this log and

   5   the addition, subtraction of the single first line on this.

   6   Q.  Where is the rest of the log?

   7            MR. SIMS:  Objection.  The witness' testimony is

   8   clear.  This is the entire log that was transcribed with

   9   respect to the Matrix.

  10            THE COURT:  Is that right, Mr.  -- Dr. Shamos?

  11            THE WITNESS:  O.K., there are two logs.  There's a

  12   log of the initiation of the IRC session when there are a

  13   bunch of people, more than two people in the chat room

  14   talking, then after you engage with a single person, there's a

  15   separate log of the so-called private conversation that takes

  16   place.  This is the complete log of the private conversation.

  17   Q.  And where -- and is there another log of the other

  18   conversation?

  19   A.  I believe there is.

  20   Q.  And where is that?

  21   A.  If it exists, it would be on the laptop.

  22   Q.  Would you please produce it?

  23            MR. SIMS:  Your Honor, at lunchtime, we provided

  24   that.  We showed that log to Mr. Hernstadt at least in part.

  25   We made arrangements.  It contains some items relevant to




                                                                169



   1   other matters other than this lawsuit and this engagement and

   2   we made arrangements to make it available with those excisions

   3   after we leave today.

   4            THE COURT:  All right.

   5            MR. GARBUS:  I'm sorry.  I wasn't part of that

   6   conversation.  Which excisions?

   7            MR. SIMS:  The ones that have nothing to do with this

   8   lawsuit and an engagement by Proskauer.

   9            MR. GARBUS:  I would ask that those documents be

  10   given to the Court and the Court make the determination about

  11   whether or not we are entitled to see it.

  12            THE COURT:  I'm going to accept the representation

  13   unless I see some reason not to.

  14   Q.  Now, after the first 10 hours, then what happens?

  15   A.  Well, the first 10 hours of the DiVX'ing process takes us

  16   up to the point where the multiplexing needs to occur and

  17   that's where the trial-and-error part of that process begins.

  18   Q.  On the log that we have which is in your exhibit there is

  19   certain information redacted.

  20   A.  The log of what?

  21   Q.  It's the log which is attached to your affidavit.

  22            THE COURT:  What exhibit are you referring to,

  23   Counsel?

  24            MR. SIMS:  Your Honor, as you've seen, the exhibit

  25   that we moved into evidence has no redactions.




                                                                170



   1            THE COURT:  115A is what I understand we have been

   2   discussing as "the log."

   3            MR. GARBUS:  The affidavit that we had originally

   4   been given had redactions, I gather, of the exhibit.

   5            MR. SIMS:  Your Honor, Mr. Garbus has had the

   6   unredacted copy more than a week.

   7            MR. GARBUS:  Pardon me?

   8            THE COURT:  Look, I really don't have to have any of

   9   this.  Mr. Garbus, rather graciously acknowledged that he was

  10   looking at the wrong piece of paper and I don't need any of

  11   this.

  12   Q.  Let me show you Defendant's Exhibit BBH and at page --

  13            MR. SIMS:  May I have a copy?

  14            MR. GARBUS:  Pardon me?

  15            MR. SIMS:  May I have a copy?

  16            THE COURT:  I would like a copy too, Mr. Garbus.

  17            Thank you.

  18   Q.  And the first sentence VaioBoy, "Anybody have any DiVX's

  19   to trade for Sleepless in Seattle?"

  20   A.  Yes.

  21   Q.  Did that come off a log?

  22   A.  No, I explain that in deposition and earlier in testimony

  23   today.

  24   Q.  So, in other words, you typed that in, although it wasn't

  25   there originally in the log, is that right?




                                                                171



   1   A.  That's correct.

   2   Q.  And why did you do that?

   3   A.  I typed it in because Eric told me that's what the

   4   statement that he made on IRC chat and it was necessary to

   5   make the log make sense.

   6   Q.  Now, did you in your declaration indicate that any part of

   7   the log had been typed in and did not reflect what the log

   8   itself was?

   9   A.  No.

  10   Q.  When you spoke to Mr. Hart, did you and he discuss whether

  11   or not that was an accurate transcript --

  12   A.  No --

  13   Q.  -- of the log?

  14   A.  No.

  15   Q.  Did Mr. Hart know that that first sentence in the log did

  16   not appear in the log?

  17   A.  I don't believe he knew that.

  18   Q.  So, now we are into -- we have synchronized it and then

  19   what happens?

  20   A.  We play it to verify that it's synchronized and then we

  21   are ready to trade.

  22   Q.  Who's the "we"?

  23   A.  Eric and I, because he, after he was done, he was

  24   naturally excited to tell me so and he came and got me in my

  25   office and we looked at the result, the DiVX'd.




                                                                172



   1   Q.  He was excited because he achieved something that was very

   2   difficult?

   3   A.  I don't know why he was excited.  I presume he was excited

   4   because he knew he had achieved the result that we were after.

   5   Q.  And what was the result you were after?

   6   A.  A DiVX'd of a decrypted DVD.

   7   Q.  And at that time, do you know whether or not that had

   8   originally -- withdrawn.

   9            So, what time are we now on, day 2?

  10   A.  As I say, I don't recall.

  11   Q.  And after he tells you he synchronized it, that took 10

  12   hours, and then what happens?

  13   A.  Then it's time to trade with whoever we can get to trade

  14   another DiVX for ours.

  15   Q.  And what time do you start to trade?

  16   A.  Approximately between 11 and midnight.

  17   Q.  11 and midnight during the time when -- I won't belabor

  18   it -- school is out?

  19            THE COURT:  I got it the first time, Mr. Garbus.

  20            MR. GARBUS:  I just wanted to know it's out every

  21   day.

  22   Q.  So, it's 11 o'clock at night and we have Eric sitting in

  23   his office?

  24   A.  Yes.

  25   Q.  And where are you?




                                                                173



   1   A.  I'm in his office.

   2   Q.  And then what happens?

   3   A.  He says, I'm going to try to find somebody we can trade

   4   with.  He goes off and does so.  I come back a little while

   5   later while he's in the middle of this chat session.  I was

   6   fascinated by the dialogue.

   7   Q.  Can I ask you something, just so I get it clear.  So, the

   8   trading then is four days after all this starts?

   9   A.  As I say, I have to check the record of when we purchased

  10   the computer to know on the date on which this starts.

  11   Q.  But is it your best memory now that it takes from the time

  12   you purchase the computer to the time you start trading the

  13   four days?

  14   A.  It's not my best recollection.  It isn't my recollection.

  15   It's possible that it was.  But it did not involve continuous

  16   work because both of us had many other things to do at the

  17   same time.

  18   Q.  Now, so you start trading at 11 o'clock at night?

  19   A.  Yes.

  20   Q.  Then what happens?

  21   A.  Well, after Eric made the deal with eaRoSoL to do the

  22   trading, he initiated the simultaneous upload and download and

  23   I repaired to my office to finish up some work.

  24   Q.  Do you know the speed of the eaRoSoL connection?

  25   A.  We don't know the speed of the connection.  We have




                                                                174



   1   surmised about the speed of the connection.  We know the speed

   2   that was actually achieved during the transfer.

   3   Q.  Now, let me ask the question again.  Do you know the speed

   4   of the connection?

   5   A.  No.

   6            THE COURT:  He said no.

   7   Q.  Do you know to what extent the theoretical capacity of the

   8   speed was utilized?

   9   A.  From our surmise, we believe it was approximately a third.

  10   Q.  And this is at -- were you there while the conversation

  11   was going on on the chat room?

  12   A.  Yes, for part of it.

  13   Q.  For how long did it go on in the chat room?

  14   A.  Oh, it was reasonably short time.

  15   Q.  How long?

  16   A.  I don't know.  I wasn't there for the entire time.  I

  17   stayed for a few minutes of it and was interested in the

  18   VaioBoy handle and some of the language that was being used in

  19   the transcript.

  20   Q.  Do you recall testifying at your deposition?

  21            THE COURT:  Excuse me, Mr. Garbus.  Before you ask

  22   that question.

  23            The log, what you've identified as the log,

  24   Plaintiff's Exhibit 115A says:  Start time:  2315.  Session

  25   closed:  2342.  Would I be wrong in concluding that the




                                                                175



   1   duration of the dialogue was 27 minutes or can you not tell

   2   that from this?

   3            MR. GARBUS:  I would ask Mr. Shamos.

   4            THE COURT:  I'm asking the witness, Dr. Shamos.

   5            THE WITNESS:  Oh, yes, the times in the log have not

   6   been altered.

   7            THE COURT:  That wasn't the question.

   8            THE WITNESS:  You would be correct in presuming that

   9   that was the duration of the chat.

  10            THE COURT:  O.K.  Go ahead.

  11            MR. GARBUS:  As I recall, this Court has rules about

  12   with respect to reading from deposition?

  13            THE COURT:  Yes.

  14            MR. GARBUS:  You're not supposed to say, you're just

  15   supposed to read the question?

  16            THE COURT:  Go ahead.

  17   BY MR. GARBUS:

  18   Q.  You just said you were there at the IRC conversation for a

  19   while.  Page 245:  "When did you leave?  Were you there for

  20   any of the IRC conversations?"

  21            THE COURT:  Mr. Garbus, for the reporter's sanity,

  22   when you do read, read the "Q" and read the "A" so she knows

  23   when; you're quoting.

  24   Q.  Page 245:

  25            "Q.    When did you leave?"




                                                                176



   1            Line No. 11, my colleagues --

   2            "Q.    When did you leave?  Were you there for any of

   3   the IRC conversations?

   4            "A.    No."

   5   Q.  Do you recall giving that answer back on July 16th which I

   6   think was yesterday?

   7   A.  I don't recall giving that answer.  I must have misspoke.

   8   Q.  When?  Yesterday or today?

   9   A.  Yesterday.

  10   Q.  Now, had you ever been on an IRC chat room before?

  11   A.  No.

  12   Q.  So, is it fair to say that without Eric, you wouldn't have

  13   known how to get on an IRC chat room?

  14   A.  Without Eric, I would not have known how to do it without

  15   further research.

  16   Q.  And what kind of research would you undertake to learn?

  17   A.  I would have gone to a search engine, typed IRC or

  18   Internet relay chat, probably within the first page of hits, I

  19   would have found a tutorial on how to do it.

  20   Q.  Now, do you know how Eric found a person to trade with?

  21   A.  I've asked him how he did it and he's told me, so I

  22   believe I know.

  23            MR. GARBUS:  Judge, what I'm told, and I don't know

  24   whether this is so or not, but the exhibit that we have is not

  25   the entire log, so that the times that you're referring to in




                                                                177



   1   the exhibit do not refer to the entire IRC conversation.

   2            MR. SIMS:  Your Honor?

   3            THE COURT:  I think the witness has made abundantly

   4   clear that there are two logs.  That the one that we have here

   5   is the entire unaltered log of that part of the conversation

   6   that took place privately between eaRoSoL and VaioBoy and that

   7   that was preceded by a dialogue that occurred on the chat room

   8   that was visible to the public and we do not here have a

   9   transcript or log of the public session.

  10            That's what I understand to be the fact.  Now, do I

  11   have it right, Dr. Shamos?

  12            THE WITNESS:  That's correct.

  13   BY MR. GARBUS:

  14   Q.  And we don't know how much time the public session took,

  15   is that right?

  16   A.  I know how long Eric told me it took.

  17   Q.  Are there any notes indicating how long Eric told you it

  18   took?

  19   A.  Well, I've thought the log had been provided to you.

  20   Q.  Now, once you started the trade, how long did that then

  21   take?

  22   A.  The trade took approximately six hours.

  23   Q.  And are there any records of that?

  24   A.  It's possible that we might be able to go back to the

  25   director on a hard disk and find the date of creation of the




                                                                178



   1   relevant files.

   2            MR. GARBUS:  I would like that hard disk, sir.

   3   Perhaps you can bring it in tomorrow morning.

   4   Q.  Now, let me ask you this --

   5            THE COURT:  Mr. Garbus, that's an application to be

   6   made to the Court and to be made later.

   7            MR. GARBUS:  I apologize.  I apologize.  I apologize.

   8   I'm told by Mr. Hernstadt that --

   9   Q.  Now, I guess what I have trouble understanding is by the

  10   way, how many other cases have you testified in?

  11   A.  Between five and ten.

  12   Q.  And these are cases where you've actually got on the stand

  13   and testified as a witness?

  14   A.  I either testified on the stand as a witness or was

  15   deposed.

  16   Q.  And how many other cases were you retained where you did

  17   not testify?

  18   A.  I don't recall, but it's a small number, possibly two.

  19   Q.  And haven't attorneys, when they have retained you, told

  20   you to keep records of what you've done in case you testify in

  21   a courtroom?

  22   A.  It has never happened.

  23   Q.  No one has ever told you to keep a record of any

  24   experiment you've ever done?

  25   A.  That's right.




                                                                179



   1   Q.  When you do experiments for the university, do you keep

   2   records of that?

   3   A.  That presumes that I do experiments for the university.

   4   Q.  Do you?

   5   A.  I don't do what you would refer to as "experiments."

   6   Q.  Now, sir, what time then does that whole process finish,

   7   about 6 in the morning?

   8   A.  Something like that.

   9   Q.  And did there come a time, by the way, when you watch the

  10   film that you have traded for?

  11   A.  Yes.

  12   Q.  And when is that?

  13   A.  I believe I watched it either soon after its completion,

  14   either right that night or after I had gotten some sleep.

  15   Q.  And you're in your office, I gather, that night from what

  16   is it, 11 to 6?

  17   A.  No, I suspect that I -- as I say, I don't have a specific

  18   recollection, but it sounds like the kind of time that I would

  19   have left, about 4.

  20   Q.  About 4?

  21   A.  Yes.

  22   Q.  That you would have left about 4?

  23   A.  Yes.

  24   Q.  And did you bill Proskauer for your time, those five

  25   hours?




                                                                180



   1   A.  Well, I'm sure I billed -- I will be billing Proskauer for

   2   more than five hours that day.

   3   Q.  No, no.  The five hours that you were in your office from

   4   11 to 5 while Mr. Burn was down -- was trading film?

   5   A.  If I was working on this case, then I would be billing

   6   them for that.  If I was working on other material, I wouldn't

   7   be billing them for it.

   8   Q.  Do you have time sheets with you here today?

   9   A.  No.

  10   Q.  Did we ask you for time sheets Saturday?

  11   A.  Yes, I was unable to locate them because they're on a

  12   computer that I can't access from here.

  13   Q.  Did you make an attempt to access that computer?

  14   A.  Yes.

  15   Q.  Didn't you tell us that Mr. Burns would bring that

  16   computer when he came here Tuesday?

  17   A.  No, I did not say that.

  18   Q.  Don't you recall a conversation where we asked you to

  19   produce the computer?

  20   A.  Yes -- it's computer?  No.  You didn't ask me to produce

  21   the computer.  The computer is a desk top that's sitting in my

  22   office at CMU.

  23            I thought at the time that the file in question might

  24   have been on my home computer, in which case, I might have a

  25   CD-ROM backup of it with me and be able to obtain the file.




                                                                181



   1   It's unfortunately on my office computer.

   2   Q.  Now, for these three days, let's say from the time you

   3   bought the computer until the time this process ends, how many

   4   hours did you bill Proskauer?

   5   A.  I haven't billed Proskauer for any hours yet.  What I do

   6   is I write down the number of hours I spend on each day on a

   7   particular matter and what I do for that time, I don't write

   8   it down by time of day.

   9   Q.  And where are those records?

  10   A.  The place I precisely told you just now.  They're on a

  11   file on the computer in my office at CMU.

  12   Q.  Now, would that file in any way indicate what you did

  13   when?

  14   A.  No, it would indicate what I did.  It wouldn't indicate

  15   what I did when and there's not a high degree of specificity

  16   to it.

  17            THE COURT:  Kind of like lawyers' diaries.

  18   Q.  And how much did you charge, if anything, for the time

  19   that of your colleague?

  20   A.  I'm charging $100 an hour for the time of my colleague.

  21   Q.  What is he being paid?

  22   A.  $100 an hour.

  23   Q.  How much time has he put in?

  24   A.  I don't know.

  25   Q.  Now, so you viewed the film on what, day 4?




                                                                182



   1   A.  I don't actually know when we started counting days, but

   2   I'm viewing the film on the 28th of July.

   3   Q.  Of June?

   4   A.  June, June.

   5   Q.  And where are you when you're viewing it?

   6   A.  In Eric's office at CMU looking at the Sony laptop that we

   7   viewed today.

   8   Q.  And when is this?

   9   A.  I don't recall the time of day.  As I say, I presume it

  10   was either very late at night or early the very next morning.

  11   Q.  We are talking about the viewing?

  12   A.  Yes, the viewing, I wanted to view it as soon as it was

  13   produced.

  14   Q.  And what is your best recollection as to what time you're

  15   viewing this film, if you have any?

  16   A.  I don't have a better recollection than I've given you.

  17   Q.  Now, you mentioned going off to Hawaii?

  18   A.  Yes.

  19   Q.  And is that the time that Eric does the other test?

  20   A.  I'm not sure what you mean by "the other test."

  21   Q.  Was there another film that Eric tried to apply DiVX do?

  22   A.  I believe Eric tried to apply -- tried to DiVX The Fight

  23   Club.

  24   Q.  And when was that?

  25   A.  I don't know.




                                                                183



   1   Q.  And what happened?

   2   A.  He was not successful.

   3   Q.  Did he do that at your direction?

   4   A.  No.

   5   Q.  Now, you say he was not successful.  Tell me what

   6   happened.

   7   A.  Well, I wasn't -- I wasn't in.  I can give you what he's

   8   told me that DeCSS doesn't work on The Fight Club.

   9   Q.  And why doesn't DeCSS work on The Fight Club?

  10   A.  I don't know.

  11   Q.  Did you try and make determination as to why it doesn't

  12   work?

  13   A.  No.

  14   Q.  By the way, do you know that DeCSS doesn't work on any

  15   Disney films?

  16   A.  I don't know that.

  17   Q.  Have you ever heard of that before?

  18   A.  I've heard that it doesn't work on The Jungle Book.

  19   Q.  And do you know why that is?

  20   A.  No, I have surmised, but I don't know.

  21   Q.  Now, again let me get it straight.  So, we have used the

  22   compression techniques, the DiVX, let's say for Sleepless in

  23   Seattle.  When does Eric next use a compression technique, is

  24   that when you're in Hawaii?

  25   A.  I don't know, because the only things that I've testified




                                                                184



   1   to are the things in my declaration.  Anything he's done 

   2   subsequent to that don't appear in my declaration which was 

   3   submitted prior to my going to Hawaii.

   4   Q.  But you know he failed let's say on the DiVX'd.  Do you

   5   know what movie he was trying to compress?

   6   A.  He was trying to go -- he was trying to deal with The

   7   Fight Club.  He was unable to do it.  I don't know why he did

   8   it, other than it sounds like a very intelligent experiment to

   9   me.

  10   Q.  Do you know if he tried to use DeCSS?

  11   A.  I believe he did.

  12   Q.  And did you ever ask him -- he was here today.  Did you

  13   ever ask him why he couldn't use DeCSS to make a copy of The

  14   Fight Club?

  15   A.  I did ask him.

  16   Q.  And what did he say?

  17   A.  He said, I don't know.

  18   Q.  Do you know how long he spent trying to make a copy of The

  19   Fight Club?

  20   A.  No, I don't know.

  21   Q.  30 hours?  50 hours?

  22            THE COURT:  We know what "don't know" means.

  23            Next question?

  24   Q.  Do you know if he made any memos or notes?

  25   A.  I don't know.




                                                                185



   1   Q.  Did you ever tell anybody at Proskauer that you could not

   2   use DeCSS to make a copy of The Fight Club?

   3   A.  I don't recall.  It's logical that I would have, but I

   4   don't specifically recall doing that.

   5   Q.  And do you know as you stand here today any other

   6   individuals who have tried to use DeCSS and failed?

   7   A.  Do I know them personally?  I have anecdotal evidence that

   8   they exist.  I don't know any of them personally.

   9   Q.  And you say you have anecdotal evidence that other people

  10   have tried DeCSS and it does not work, is that right?

  11   A.  On specific films; yes.

  12   Q.  Which specific films?

  13   A.  As I said, The Jungle Book.

  14   Q.  That's the only one?

  15   A.  It's the only one I know of.

  16   Q.  Has anyone ever told you that it works on any particular

  17   film other than the ones you tried it on?

  18   A.  DeCSS specifically?

  19   Q.  Yes.

  20   A.  No human being has told me that.

  21   Q.  Going through Exhibit 116B, which is the list of all of

  22   the films that you saw, do you know whether DeCSS can be used

  23   for any one of them?

  24   A.  I think Sleepless in Seattle is on the list, so.

  25   Q.  Other than that?




                                                                186



   1   A.  No.  I know it's alleged to have been used by the people

   2   who supposedly did it, but I don't know that it was done that

   3   way.

   4   Q.  Thank you very much.

   5            Now, when you say it was alleged to have been used,

   6   do you know if the MPA ever tried to contact any of these

   7   people who ever said they used DeCSS?

   8            MR. SIMS:  Your Honor, if we have to go through this

   9   stuff -- examination twice, we'll really be here for a long

  10   time.

  11            THE COURT:  And your point is what?

  12            MR. SIMS:  Asked and answered.  He asked that

  13   question and it was answered.

  14            MR. GARBUS:  I don't think I asked that question, not

  15   that question.

  16            THE COURT:  I don't think precisely that way.

  17            Overruled.

  18   A.  No, I don't know.

  19   Q.  Are you an expert on security systems?

  20   A.  I wonder if you could make more precise what you mean by

  21   "security systems."

  22   Q.  Security systems for computer technologists, code CSS,

  23   water marks?

  24   A.  I'm an expert to the extent that I follow the field and I

  25   give lectures on the topic.  I'm not an expert to the extent




                                                                187



   1   that I do active forefront research in that area.

   2   Q.  Now, did you at any time ask anybody at Proskauer or the

   3   MPA what they did after they first learned that there were

   4   cracks in CSS in 1997?  I know you learned it later on, but

   5   when you learned it, did you ever ask anybody at Proskauer or

   6   the MPA:  Why didn't you do anything for two years when you

   7   knew there were cracks?

   8            MR. SIMS:  Objection.

   9            THE COURT:  Sustained.

  10   Q.  Any conversation like that?

  11            MR. SIMS:  Objection.

  12            THE COURT:  Sustained.

  13   Q.  Would you agree that the DiVX version of the Matrix you

  14   saw is darker than the original DVD?

  15   A.  It didn't seem that way to me.

  16            MR. GARBUS:  The Court, I'm sure, will see it and

  17   form its own conclusion.

  18   Q.  With respect to computer connections, can we agree that

  19   the transfer rate is limited by the slowest part of the entire

  20   connection?

  21   A.  Yes.

  22   Q.  So, even if you have the fastest Internet available, if

  23   your connection to the Internet is slow, the transfer rate is

  24   slow, is that correct?

  25   A.  Yes.




                                                                188



   1   Q.  Do you know anything about the difference in the loads at

   2   Carnegie during particular hours?

   3   A.  I can describe generally the factors that would contribute

   4   to there being differences.  I don't know numerical statistic

   5   on what the loads are.

   6   Q.  Now, you talked about this 20-minute transfer?

   7   A.  Yes.

   8   Q.  Is it fair to say if 10 students were doing it at the same

   9   time on the same Internet to the same machine that that

  10   transfer would take more than three hours?

  11   A.  O.K.  The transfer that involved 20 minutes did not

  12   involve the Internet.  That was purely done internally at CMU.

  13   Q.  And how many people were on that connection at that time?

  14   A.  I don't know.  We were receiving a third of the available

  15   bandwidth.

  16   Q.  Do you know if anybody else was on it?

  17   A.  I presume that they were or we would have gotten more than

  18   of the bandwidth.

  19   Q.  You've never traded a DiVX'd with anyone ever found

  20   through iSONEWS, is that right?

  21   A.  That's right.

  22            MR. GARBUS:  I think I may be through.  Just a

  23   moment, your Honor.

  24            (Pause)

  25            MR. GARBUS:  Just a few questions.




                                                                189



   1   Q.  How much time did it take to install Windows and redo the

   2   first steps of the experiment?

   3   A.  The installation of Windows was relatively rapid.  Eric

   4   has done that numerous times.  The redo of all the initial

   5   steps took about half the time the second time as it did the

   6   first time.

   7   Q.  Did you use CMU's Windows, is that right?

   8   A.  Yes.

   9   Q.  And wasn't that in violation of CMU's regulations by which

  10   you're not allowed to do that for your own private use?

  11   A.  I don't know.  I don't necessarily regard this as my own

  12   private use.

  13   Q.  Isn't it a violation of Carnegie-Mellon's rules for you to

  14   do this for Proskauer's use?

  15   A.  I don't believe so.  Faculty frequently consult are

  16   encouraged and some departments required to consult.  They are

  17   able to use the facilities provided for them by CMU seemingly

  18   without any violation of university policy.

  19   Q.  Have you ever seen the site license of Carnegie-Mellon?

  20   A.  I have seen site licenses at vary times in my career at

  21   Carnegie-Mellon.  I haven't seen it for Windows.

  22            MR. GARBUS:  We'll have Mr. Teretsky from

  23   Carnegie-Mellon in a few days.

  24            That's all for now.

  25            THE COURT:  Thank you.  Any redirect?




                                                                190



   1            MR. SIMS:  Yes, your Honor.

   2   REDIRECT EXAMINATION

   3   BY MR. SIMS:

   4   Q.  Dr. Shamos, just so we are clear, the session of your

   5   experiment that dealt with DeCSS'ing Sleepless in Seattle, did

   6   that require -- did that depend on the amount of traffic going

   7   on in the land at CMU at that time?

   8   A.  No, the DeCSS'ing process is done completely locally on

   9   the client machine, in this case the Sony laptop.  In fact, my

  10   recollection is that the connection to the land was even

  11   disconnected during the time after we had obtained the

  12   necessary software, but it didn't use any land connection.

  13   Q.  And would traffic on the land affect in any way the DiVX

  14   processing time that you recorded on?

  15   A.  No, once all the tools obtained to do it, that is again a

  16   legal process on the client.

  17   Q.  Now, once a DeCSS'd DiVX'd copy of a motion picture had

  18   been created, is it available for transfer for the next 20

  19   years regardless of whether it was made at night or during the

  20   day?

  21   A.  Presumably there isn't some technological revolution of

  22   that would obsolete the format on which it started.  Yes, it

  23   is available until such revolution.

  24   Q.  Do you know whether the traffic on the land of CMU is

  25   greater or lesser from 6 to midnight than it is during the




                                                                191



   1   day?

   2   A.  I don't.  The population of users who use it and what they

   3   do with it changes at the various times during the day.

   4   Students are in class during the day, but they're in their

   5   dorm rooms at night.  That's when they use it.

   6            Faculty is in their offices during the day and often

   7   at home at night, and so the office use is lower at night.

   8            MR. SIMS:  Nothing else, your Honor.

   9            THE COURT:  All right.

  10            Thank you.  Anything further for this witness, Mr.

  11   Garbus?

  12            MR. GARBUS:  Your Honor, we had made a motion to

  13   exclude him as an expert.  Given the fact that this is a

  14   non-jury trial, I suppose we can wait for another time to

  15   discuss that.

  16            THE COURT:  Yes, I think so.

  17            All right, anything further?

  18            MR. SIMS:  Nothing further.

  19            MR. GARBUS:  Nothing -- the only thing is we worked

  20   out a practice I think last week, your Honor, that in order to

  21   avoid unnecessary cross-examination, we could just put in

  22   deposition testimony and appropriately designated and they

  23   could object and we could object and you can -- so, we will

  24   then put in -- we've just -- we haven't yet gotten it all.  We

  25   will designate --




                                                                192



   1            THE COURT:  That's fine.

   2            The witness is excused.

   3            MR. SIMS:  Your Honor, just so we are clear, that was

   4   not an arrangement we made.

   5            THE COURT:  No.  That's what Mr. Garbus asked for

   6   that and I said it was fine.  There was really no sense with

   7   100 people sitting in the courtroom listening to somebody read

   8   what I can sit down and read.  We could have gotten the phone

   9   book, too.

  10            MR. GARBUS:  I think there are two open issues unless

  11   I can raise them.

  12            THE COURT:  The two I have on my list is Mr.

  13   Stevenson and Mr. Garbus.  Let's take up Mr. Stevenson first.

  14            MR. GARBUS:  We have him here.  He had been involved

  15   in this early on.  They have reports of his.  He has submitted

  16   an affidavit.  We had put him on the witness list.  We are

  17   prepared to give him, as they requested, an hour's deposition

  18   and have him testify out of turn tomorrow.

  19            MR. SIMS:  Your Honor, as you may recall --

  20            THE COURT:  Before you go, Mr. Sims, give me a short

  21   offer of proof, I mean short, from Mr. Stevenson just so I

  22   know what we are talking about.

  23            MR. HERNSTADT:  Mr. Stevenson is a computer

  24   program -- he's an expert in source code and object code.

  25   He's an enthusiast who was the first person who wrote the




                                                                193



   1   crypt analysis.  I would call him an expert in photography as

   2   well, he did the crypt analysis.

   3            THE COURT:  And in substance, what is he going to

   4   tell me?

   5            MR. HERNSTADT:  He's going to tell you how difficult

   6   it is to break the CSS code.  He's going to talk about the

   7   connection between the CSS and Linux.  He's going to talk

   8   about the assets and open source of the DVD player.  He's

   9   going to talk about --

  10            (Continued on next page)

  11

  12

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25




                                                                194



   1            THE COURT:  There is no disagreement that there is no

   2   open source DVD player.  Is there a disagreement about that?

   3            MR. SIMS:  There are in fact licenses which have been

   4   granted, and people are undertaking to create them.  They have

   5   licenses, but there is no dispute that there is not one

   6   available for purchase at any store in Manhattan.

   7            MR. HERNSTADT:  In fact that's incorrect.  There are

   8   closed source licenses that have been granted to a couple of

   9   people who are attempting to develop a Linux DVD player, but

  10   it's my understanding that under no circumstances will persons

  11   developing a closed source DVD player be permitted to release

  12   the source, so other people can take that DVD player as it's

  13   normally done in the community.

  14            THE COURT:  That piece of it is an object of

  15   controversy.  Mr. Sims like most good lawyers has a lot of

  16   trouble just saying yes to something the other side proposes.

  17            MR. GARBUS:  May I interfere?

  18            THE COURT:  Yes.

  19            MR. GARBUS:  One of the issues in the case, and your

  20   Honor has mentioned this, is why was DeCCS created, was it

  21   created as a tool for pirates or was it created for the Linux

  22   system.  And I think that your Honor will make his own

  23   determination clearly about whether or not that's relevant to

  24   the circumvention under 1201, but what Mr. Stevenson can

  25   testify to, since he was involved in the work in creating the




                                                                195



   1   DeCSS so that the Linux people could have an open source

   2   system, he could also testify about the other kinds of rippers

   3   and the efficacy of DeCSS, but I think it's most clinical, and

   4   your Honor hasn't seen that yet, and it was not given to you

   5   at the preliminary injunction hearing, there is a pack of

   6   papers about six pages high -- about six inches high, maybe a

   7   foot high --

   8            THE COURT:  You got my hopes up for a minute.

   9            MR. GARBUS:  -- where there is a discussion about the

  10   Linux group and the attempt of the Linux group to create the

  11   Linux machine.  And the extent to which Frank Stevenson can

  12   give you information about that, that I think becomes

  13   relevant.  Again, the details of his testimony are better

  14   known to Mr. Hernstadt than I, but I find that relevant.

  15            THE COURT:  How long do you expect to have him on

  16   direct?

  17            MR. HERNSTADT:  I think we can finish his direct in

  18   an hour and a half, probably an hour.

  19            THE COURT:  Mr. Sims?

  20            MR. SIMS:  In the first place, I believe it is

  21   undisputed that Mr. Stevenson did not create DeCSS, and we

  22   don't believe that it's an issue in the case in any event.

  23            Second of all, if your Honor will recall we had

  24   repeatedly said we were prepared to depose everyone who might

  25   be coming to trial and ask for dates.




                                                                196



   1            THE COURT:  I remember that.

   2            MR. SIMS:  And there was a discovery deadline first

   3   of June 5 and then June 11.

   4            THE COURT:  July 5.

   5            MR. SIMS:  Absolutely, July 5 and 11.  We have

   6   repeatedly asked for dates and were provided no date for

   7   Mr. Stevenson prior to those times, and we therefore sent your

   8   Honor last week a letter asking for Mr. Stevenson to be

   9   excluded on the grounds of the failure to comply with

  10   discovery deadlines set by the Court.

  11            THE COURT:  All right.

  12            MR. SIMS:  In addition, there is a pending motion in

  13   limine that would exclude him.

  14            THE COURT:  I understand that.  You have all kept me

  15   busy with other matters for the last couple of days.

  16            MR. SIMS:  If I might, I'm also advised this

  17   testimony is cumulative of the deposition testimony of two

  18   other people who are being brought to trial:  Mr. Snyder and

  19   Mr. Appel.

  20            MR. HERNSTADT:  Mr. Stevenson did the crypt analysis.

  21   He is the man on the scene.  He can talk about things from

  22   experience, from personally having done it as opposed to

  23   assessing it.

  24            Additionally he is a participant in a lot of the

  25   Linux lists, so he can talk about the connection between CSS




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   1   and DeCSS and Linux, which Mr. Snyder cannot.

   2            THE COURT:  All right.  Here is what we are going to

   3   do.  It is clear that the defendants did not comply with the

   4   orders relating to this aspect of discovery, and there is a

   5   nontrivial argument made by the plaintiffs that I should rule

   6   them out.

   7            Nonetheless, contrary to some things that have been

   8   said, I'm very mindful of the expedited schedule in this case

   9   which serves a lot of interests, even for parties who don't

  10   always recognize them, and I think in all the circumstances

  11   some balance ought to be made to permit this man to testify,

  12   and I think that's doubly appropriate since he is I'm informed

  13   the President of Norway and it's not clear that it was within

  14   the power of the defendant simply to order him to show up in

  15   New York for a deposition.  So, I will hear his testimony, and

  16   I am also going to give them the opportunity to depose him

  17   tonight, as has been suggested.  What we will do, because

  18   obviously everybody has a lot of demands on their time right

  19   now, is this:  The direct tomorrow is not to exceed an hour

  20   and a half.  The deposition is not to exceed an hour and a

  21   half.  If you people work out a different arrangement for a

  22   longer deposition, I will work out a different arrangement on

  23   the length of the direct.  It just seems to me that that's a

  24   fair balance.  And anything pretty much that you can agree to

  25   between yourselves, even if it is at some variance with that,




                                                                198



   1   probably will be acceptable.

   2            I do once again urge that to the extent this man is

   3   coming here to tell me things that are not genuinely disputed,

   4   that you simply stipulate to it.

   5            Now, I do appreciate that there is probably some

   6   element of perhaps the man wants to testify in this case.  I

   7   don't know that to be true, but it might be.  I understand

   8   that too, but let's just try to do this as efficiently as

   9   possible.

  10            That takes care of Mr. Stevenson.

  11            What about Mr. Burns?

  12            MR. HERNSTADT:  I think it has become clear that Mr.

  13   Burns did most of the experiment.  I think the reason that it

  14   is important to talk to Mr. Burns is that I think it has also

  15   become clear that that experiment was directed entirely by

  16   Proskauer, that Dr. Shamos was given direct instructions to

  17   purchase a computer, to do this, to do this, to go to 2600 and

  18   through 2600 get the DeCSS and he carried out those

  19   instructions.  There is no expertise required for that.  I

  20   would say that a 13 year old can do it, but that goes without

  21   saying.  I think even a person who is computer illiterate

  22   could follow those directions given enough time.  No expertise

  23   at all was required.

  24            So, it's a question of fact, what happened.  And

  25   there are definitely disparities in terms of the burn date on




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   1   the movies, what happened on the IRC channel, what other

   2   things went on during the DiVXing process.  I think we are

   3   entitled to know the basis for the opinions that were stated

   4   by Dr. Shamos, and to the extent they were provided by work

   5   done solely by Mr. Burns, and a significant part of it was

   6   done by Mr. Burns, we are entitled to see what Mr. Burns did.

   7            THE COURT:  Mr. Sims?

   8            MR. SIMS:  I think if Congress had enacted or the

   9   Judicial Conference had enacted a different version of Rule

  10   703, that would be a perfectly good argument, but under 703 I

  11   think an expert is entitled to rely on the kinds of materials

  12   relied on by persons in that field.  And I believe that

  13   persons in that field are allowed to and they customarily do,

  14   the testimony is that they do rely on those kinds of

  15   assistance for this kind of work.  Therefore, I think under

  16   Rule 703 --

  17            THE COURT:  That gets Dr. Shamos's opinion in, but it

  18   doesn't necessarily go beyond it.  If we were trying a plain

  19   old ordinary medical malpractice case and the alleged

  20   malpractice was some kind of misdiagnosis by the hospital, and

  21   the attending physician came in and testified that he received

  22   a report from the pathology lab that said something was not

  23   cancerous and it turned out to be cancerous, it may have been

  24   perfectly reasonable for the attending to have relied on a

  25   report from the pathology lab, and there may well have been




                                                                200



   1   malpractice anyway if the pathologist failed to perform the

   2   review of the tissue appropriately.  So, you haven't really

   3   touched their point yet, Mr. Sims.

   4            MR. SIMS:  Well, I thought that I had, your Honor.

   5   The experiment was conducted, directed by Dr. Shamos, and he

   6   was in and out of the room, and he checked on the result and

   7   he checked on the things that were done, and I believe that

   8   that's the way experts customarily testify.

   9            THE COURT:  Look, you have offered me CD-ROMs that

  10   Mr. Burns burned on the basis of the DiVX versions that

  11   allegedly were made, using DeCSS on files swapped over the

  12   Internet, and you have invited me to draw conclusions about

  13   the quality of the resultant product.  Now, it seems to me in

  14   those circumstances they are entitled to go into the question

  15   of what is on those CD-ROMs and how it got there, because it

  16   goes to the issue of whether the product that you have offered

  17   me is or isn't persuasive evidence.

  18            MR. SIMS:  Then we will make Mr. Burns available.

  19            THE COURT:  I thought that was the right answer.

  20   Okay.

  21            Now the one other thing I want to remind you before

  22   we break for the day is that you must provide the court

  23   reporters with that glossary I mentioned before we start

  24   tomorrow.

  25            What time are we starting now?  9 o'clock, folks.




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   1            MR. HERNSTADT:  May.

   2            MR. GARBUS:  May we keep our documents here?

   3            THE COURT:  You certainly may.  The courtroom is

   4   going to be locked.  There is a lot of sensitive material in

   5   the courtroom, and we give no representations or warrantees

   6   about how effective our security is, but we will endeavor to

   7   lock the courtroom and keep people out and keep everything

   8   secure.

   9            MR. GARBUS:  May I ask one further question?  When

  10   cross-examining, in direct examination, using confidential

  11   documents and referring to confidential documents or

  12   privileged documents, I presume the practice would be if there

  13   is any question about it to let the Court see it before the

  14   examination on that document.

  15            THE COURT:  Yes, I think that absolutely has to be

  16   the case.  There is no question about that.

  17            MR. SIMS:  It would be helpful, your Honor, if we

  18   could have first thing in the morning or after the lunch break

  19   from our adversaries a list of what is going to come up so we

  20   can review it.

  21            THE COURT:  To whatever extent you people can work

  22   that out, please work it out.  If it comes up in the course of

  23   the day we will deal with it.  And I really would urge both

  24   sides to manage the examinations in a way -- and I would be

  25   surprised if it couldn't be done -- that would enable me to




                                                                202



   1   avoid closing the courtroom at any point in this trial.  I

   2   don't want to do that.  Okay.  Thank you.

   3            MR. SIMS:  Thank you, your Honor.

   4            (Trial adjourned to July 18, 2000 at 9:00 a.m.)

   5

   6

   7

   8

   9

  10

  11

  12

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25




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   1                        INDEX OF EXAMINATION

   2   Witness                    D      X      RD     RX

   3   MICHAEL I. SHAMOS.........16    120     190

   4                         PLAINTIFF EXHIBITS

   5   Exhibit No.                                     Received

   6    112, 113, 114A through 114E, and 2 ...........65

   7    115A and 115B ...............................113

   8                         DEFENDANT EXHIBITS

   9   Exhibit No.                                     Received

  10    105 through 110 ..............................40

  11

  12

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25


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