David S. Touretzky Deposition, in MPAA v. 2600

PA; July 13, 2000

See related files:
http://www.eff.org/IP/Video (EFF Archive)
http://jya.com/cryptout.htm#DVD-DeCSS (Cryptome Archive)
http://www.2600.com/dvd/docs (2600 Archive)
http://cyber.law.harvard.edu/openlaw/dvd/ (Harvard DVD OpenLaw Project)


          1                  UNITED STATES DISTRICT COURT
                            SOUTHERN DISTRICT OF NEW YORK
                                       - - - -
              UNIVERSAL CITY STUDIOS, INC.,   )
          5   INC., TRISTAR PICTURES, INC.,   )
              CO., L.P., DISNEY ENTERPRISES,  )
          7   INC., and TWENTIETH CENTURY FOX )
              FILM CORPORATION,               )
          8                                   )
                                  Plaintiffs, )
          9                                   )
                   -vs-                       ) Civ. No. 0277 (LAK)
         10                                   )
              ERIC CORLEY a/k/a "EMMANUEL     )
         11   GOLDSTEIN" and 2600             )
              ENTERPRISES, INC.,              )
         12                                   )
                                  Defendants. )

         14                            - - - -

         15             DEPOSITION OF:  DR. DAVID S. TOURETZKY

         16                            - - - -

                         DATE:         July 13, 2000
         18                            Thursday, 1:15 p.m.

                        PLACE:         DeFOREST & KOSCELNIK
         20                            3000 Koppers Building
                                       Pittsburgh, PA  15219

         22          TAKEN BY:         Plaintiffs

                  REPORTED BY:         Edna Loudenslager, RPR
         24                            Notary Public



          1             DEPOSITION OF DR. DAVID S. TOURETZKY,
              a witness, called by the Plaintiffs for examination, in
          2   accordance with the Federal Rules of Civil Procedure,
              taken by and before Edna Loudenslager, RPR, a Court
          3   Reporter and Notary Public in and for the Commonwealth of
              Pennsylvania, at the offices of DeForest & Koscelnik, 3000
          4   Koppers Building, Pittsburgh, Pennsylvania, on Thursday,
              July 13, 2000, commencing at 1:15 p.m.
                                       - - - -
                    FOR THE PLAINTIFFS:
          8   Michael T. Mervis, Esq. (via telephone)
              PROSKAUER ROSE
          9   1585 Broadway
              New York, NY  10036-8299
         10   (212) 969-3000


         12         FOR THE DEFENDANTS:
              David Y. Atlas, Esq. (via telephone)
              488 Madison Avenue
         14   New York, NY  10022
              (212) 980-0120

         18   Walter P. DeForest, Esq.
              DeFOREST & KOSCELNIK
         19   3000 Koppers Building
              Pittsburgh, PA  15219
         20   (412) 227-3101


         22         ALSO PRESENT:
              Nathanial Dorfman




          1                         * I N D E X *

          2   Examination by Mr. Mervis  - - - - - - - - - - - -    4
              Examination by Mr. Atlas - - - - - - - - - - - - -   60
          3   Re-Examination by Mr. Mervis - - - - - - - - - - -   66

          4   Certificate of Court Reporter  - - - - - - - - - -   69
              Errata Sheet - - - - - - - - - - - - - - - - - - -   70

          6                     * INDEX OF EXHIBITS *

          7   Deposition Exhibit 1 - - - - - - - - - - - - - - -   25
              Deposition Exhibit 2 - - - - - - - - - - - - - - -   52
          8   Deposition Exhibit 3 - - - - - - - - - - - - - - -   59



















          1                    DR. DAVID S. TOURETZKY,

          2                    being first duly sworn,

          3             was examined and testified as follows:

          4                            - - - -

          5                          EXAMINATION

          6                            - - - -

          7   BY MR. MERVIS:

          8   Q.    This is Michael Mervis speaking.  Good afternoon,

          9         Dr. Touretzky.

         10                   Is Doctor the preferred way you like to be

         11         addressed?

         12   A.    That's fine.

         13   Q.    Let me put on the record a housekeeping matter,

         14         because we're doing this by telephone.  Let me thank

         15         both you and Mr. DeForest for letting us do this by

         16         phone.

         17                   MR. DeFOREST:  Sure.

         18   BY MR. MERVIS:

         19   Q.    I'm sure that it would have been a nice visit to

         20         Pittsburgh, but it's a lovely day here in New York.

         21                   There will be a couple documents,

         22         Dr. Touretzky, that I'll be asking you to refer to,

         23         and I'm hoping that you have them with you.  One is

         24         the declaration that you signed in this action,

         25         dated April 27th of 2000.


          1   A.    Yes, I have that here.

          2   Q.    You have the attachment to that, the Exhibit B to

          3         that, as well?

          4   A.    Would that be the Gallery of CSS Descramblers?

          5   Q.    Yes, sir.

          6   A.    Yes, I have that here as well.

          7   Q.    Okay.  I would anticipate asking you some brief

          8         questions about one other document, which you may

          9         not have, which is a -- I got this from your Web

         10         site, but it's a copy of a letter that you wrote to

         11         the editor of the Tartan, which I take it is a

         12         campus publication.  The date of it -- I'm not sure

         13         I have a date here, but it's regarding DeCSS and

         14         DVDs.

         15                   Do you know which letter I'm referring to?

         16   A.    Yes, I do.  I'm not sure if I have a copy of that or

         17         not.

         18                   MR. ATLAS:  This is Mr. Atlas.  I don't

         19         have a copy of that.  Maybe if there's a way to

         20         access it --

         21                   MR. MERVIS:  Well, there are two things we

         22         can do.  I mean, it is on the site, although I'm not

         23         sure that makes -- I will save it till the end of

         24         the examination.  Maybe I can fax it off to both of

         25         you right now.


          1                   MR. DeFOREST:  Yes.  This is Walter

          2         DeForest, Mr. Mervis.  And I should note I'm here --

          3         we should note on the record I believe Mr. Atlas is

          4         representing Dr. Touretzky in regard to his

          5         involvement in the pending litigation.  I'm here

          6         only representing Dr. Touretzky in regard to any

          7         matters relating to him as a faculty member of

          8         Carnegie Mellon University and, also, I'll be

          9         representing the University in that regard, if, in

         10         the unlikely event, any subjects like that came up.

         11         But you could fax it to my fax number, which I'll

         12         give you.

         13                   MR. MERVIS:  Okay.

         14                   MR. DeFOREST:  And if you wanted to do

         15         that, maybe give it to somebody to do now and

         16         I'll --

         17                   MR. MERVIS:  I'll give it to my secretary,

         18         who I had stand by just in case this -- I thought

         19         this might happen.

         20                   MR. DeFOREST:  Yes.

         21                   MR. ATLAS:  And I'll probably need to just

         22         take a break and run to the fax room to get it.

         23                   MR. MERVIS:  That's fine.  That's fine.

         24         As I said, I'll save this till the end of the

         25         examination.  Although I'm going to try to do this


          1         relatively quickly, it will probably certainly be

          2         enough time to have it faxed.



          5                   	CONFIDENTIAL







         12                   MR. MERVIS:  Okay.  If I can put you on

         13         hold for just a minute, then we'll get started.

         14                            - - - -

         15         (There was a brief pause in the proceedings.)

         16                            - - - -

         17   BY MR. MERVIS:

         18   Q.    This is Mr. Mervis, and I'm back and I thank you for

         19         your patience.

         20                   MR. DeFOREST:  Mr. Mervis, this is Walter

         21         DeForest.  It's just my practice to let everybody

         22         know who's in the room on a telephone deposition.

         23         The only people here would be the reporter,

         24         Dr. Touretzky and me, and I have a young man who's

         25         going into his second year at Harvard Law School.


          1         He's with me in the summer and wanted to see a

          2         deposition.  So his name is Nathanial Dorfman.

          3                   MR. MERVIS:  Okay.  Well, welcome,

          4         Mr. Dorfman.  I'm sorry you can't actually see us.

          5                   MR. ATLAS:  Now we have to behave, I

          6         suppose.

          7                   MR. MERVIS:  Well, I think we had planned

          8         to.

          9                   Just in keeping with that comment, it's

         10         possible that I may be joined for a few minutes by

         11         one of my colleagues, whose name is Carla Miller.

         12                   MR. DeFOREST:  Sure.

         13                   MR. MERVIS:  If that happens, I'll put you

         14         on the speaker phone, and I'll let you know when she

         15         comes in.

         16                   MR. DeFOREST:  Yes, sir.

         17   BY MR. MERVIS:

         18   Q.    Dr. Touretzky, let me ask you this, sir:  When was

         19         the first time that you ever spoke to any of the

         20         attorneys who are representing the defendants in

         21         this case?

         22   A.    I spoke with Robin Gross back around -- I think

         23         February of this year.  I'm not certain of the date.

         24   Q.    And did you speak with her about this case?

         25   A.    Yes.  This or the California case.  I think both.


          1   Q.    Was that a telephone conversation?

          2   A.    There was both e-mail and telephone.

          3   Q.    I see.  About how many telephone conversations did

          4         you have with Ms. Gross about this case?  And if you

          5         can't exclude this case and the California case,

          6         that's fine.  Well, let me restate it.

          7                   About how many conversations by phone did

          8         you have with Ms. Gross about either this case or

          9         the California case?

         10   A.    I think somewhere around four.

         11   Q.    Did you take any notes or make any record of any of

         12         these conversations?

         13   A.    I'm not certain.

         14   Q.    Sitting here today -- or I should say sitting in

         15         Pittsburgh today, what do you recall about what was

         16         said during any of these conversations?

         17   A.    Well, one thing that was said was that EFF would

         18         represent me if I became a defendant.  And given

         19         that, that's my understanding.  I don't think I want

         20         to go into anything else that was said.

         21   Q.    Well, let me just explore that for a minute.

         22                   Is it correct, then, Dr. Touretzky, that

         23         the remainder of the conversation that you had with

         24         Ms. Gross concerned your potential involvement as a

         25         litigant in this lawsuit?


          1                   MR. ATLAS:  This is Mr. Atlas.  I'm going

          2         to raise an objection.

          3                   To the extent, Dr. Touretzky, you

          4         consulted Ms. Gross in connection with the possible

          5         attorney/client relationship between the two of you,

          6         then I would instruct you not to answer that

          7         question concerning the subject of any discussions

          8         you may have had with her.

          9   A.    I considered the entirety of our conversation to be

         10         at least related to the potential of my being a

         11         defendant.

         12   BY MR. MERVIS:

         13   Q.    Okay.  And is there any part of any of these

         14         conversations that you can separate out from that

         15         possibility as opposed to acting as either a

         16         consultant or a testifying witness in either this

         17         litigation or the California litigation?

         18   A.    I don't believe that I can separate those.

         19   Q.    Do you recall -- I take it -- do you have any of the

         20         e-mail correspondence that you referred to with you

         21         today?

         22   A.    Not with me.

         23   Q.    Do you have any recollection of what was in those

         24         correspondences?  And I -- well, that's the

         25         question.


          1                   MR. ATLAS:  This is Mr. Atlas.  Kind of

          2         the same objection.  To the extent you're

          3         corresponding with Ms. Gross in connection with an

          4         attorney/client relationship with respect to any

          5         potential action against Dr. Touretzky, then I would

          6         instruct the witness to not reveal the substance of

          7         those communications.

          8                   MR. MERVIS:  Okay.  That's fine.  The

          9         question was -- the set-up question was whether

         10         Dr. Touretzky recalled any of the --

         11                   MR. ATLAS:  Right.  I understand the

         12         content.  It calls for a yes or no answer.

         13                   MR. MERVIS:  Right.

         14   A.    I think I've been instructed not to answer.

         15                   MR. ATLAS:  You can answer yes or no as to

         16         whether you recall the content.  If the answer is

         17         no, then he'll just move on.  If the answer is yes,

         18         then at that point I will instruct you not to

         19         disclose the substance of those communications.

         20                   THE WITNESS:  Okay.

         21   A.    I recall at least some of the content.

         22   BY MR. MERVIS:

         23   Q.    And can you tell me what you recall?

         24                   MR. ATLAS:  Okay.  At this point, this is

         25         Mr. Atlas, I'll instruct the witness not to answer.


          1         To the extent it dealt specifically with whether --

          2         dealt specifically with a potential attorney/client

          3         relationship between Dr. Touretzky and an attorney,

          4         if you can separate out any matters relating to the

          5         possibility of you acting as an expert or a witness

          6         in the case, you may do so.  But if you can't, then

          7         I instruct you not to answer.

          8   A.    Everything that I can recall was related to the

          9         possibility of my being a defendant, with the

         10         exception of at one point Ms. Gross did give me

         11         Mr. Garbus's phone number.

         12   BY MR. MERVIS:

         13   Q.    I see.  All right.  Is it fair to say that at some

         14         point you had a conversation with Mr. Garbus?

         15   A.    Yes.

         16   Q.    Do you recall when that was?

         17   A.    I think it was in March.

         18   Q.    And did you have any other type of communication

         19         with Mr. Garbus before you had that telephone

         20         conversation in March?

         21   A.    No.  I believe the phone call was the first

         22         communication.

         23   Q.    And were just you and Mr. Garbus participants on

         24         that phone call?

         25   A.    Yes.


          1   Q.    About how long did the call last?

          2   A.    I think it was pretty brief.  Maybe -- I'm

          3         uncertain.  Maybe five minutes, ten minutes at most.

          4   Q.    And did you make any notes during the course of that

          5         telephone conversation?

          6   A.    No.

          7   Q.    Have you, at any time, made any kind of record of

          8         what was said during that conversation?

          9                   MR. ATLAS:  Mr. Atlas.  Objection as to

         10         form.

         11                   Go ahead, you can answer.

         12   A.    I don't believe there was a record.  Not of that

         13         initial conversation, no.

         14   BY MR. MERVIS:

         15   Q.    Dr. Touretzky, could you tell me what was said

         16         during this initial March telephone conversation

         17         with Mr. Garbus?

         18                   MR. ATLAS:  This is Mr. Atlas.  Again, I

         19         just -- because I'm not aware of the substance of

         20         these conversations, I just want to instruct the

         21         witness -- to the extent it dealt with a possible

         22         attorney/client relationship between Mr. Garbus or

         23         the Frankfurt Garbus firm and Dr. Touretzky, I'd

         24         instruct the witness to not answer that.

         25                   To the extent that it dealt with his


          1         matters in connection with this lawsuit and in

          2         connection with him being a testifying witness, an

          3         expert for the defense, then he certainly may

          4         testify about that.

          5   A.    Okay.  I believe that in that first conversation I

          6         referred Mr. Garbus to the Gallery of CSS

          7         Descramblers that I had prepared.  And you have that

          8         in front of you.  It's Attachment B to my

          9         declaration.

         10   BY MR. MERVIS:

         11   Q.    All right.  And do you recall -- was there any

         12         conversation as to why you thought Mr. Garbus should

         13         take a look at that Gallery?

         14   A.    I thought the Gallery made an effective argument

         15         that computer code is expressive speech and can't be

         16         distinguished from other forms of expressive speech.

         17   Q.    Do you recall anything else that was said by either

         18         you or Mr. Garbus during this March telephone

         19         conversation?

         20   A.    Nothing that I don't believe is covered by

         21         attorney/client privilege.

         22   Q.    And when you say attorney/client privilege, do you

         23         mean to say that the rest of the discussion that you

         24         recall, in any event, focused around the Garbus

         25         firm's possible representation of you as a litigant


          1         in some lawsuit or potential lawsuit?

          2   A.    I don't recall many details, but I have discussed

          3         with Mr. Garbus his representation of me.  And I

          4         believe that --

          5                   MR. ATLAS:  This is Mr. Atlas.  To the

          6         extent the witness -- I'll allow the witness to

          7         answer questions as it pertains to any conversations

          8         with any attorneys, whether at this firm or

          9         otherwise, regarding his participation as an expert

         10         in this action.

         11                   And, Dr. Touretzky, to the extent you can

         12         parse it out, you should answer those questions.  To

         13         the extent any of your conversations dealt with any

         14         other matters of an attorney/client nature, then I

         15         would instruct you to not answer those questions.

         16                   THE WITNESS:  I understand.

         17                   MR. ATLAS:  Okay.

         18                   MR. MERVIS:  And this is Mr. Mervis.  I,

         19         basically, think that's a perfectly fine

         20         instruction.  I'm not sure that the last question I

         21         asked would intrude on that instruction, so if I

         22         could ask Edna to read it back to the witness.

         23                   MR. ATLAS:  This is Mr. Atlas.  I don't

         24         know, either, but I just wanted to give the

         25         instruction so that the doctor was clear on what he


          1         should and should not testify about.

          2                   MR. MERVIS:  Okay.  This is Mr. Mervis.

          3                   Edna, could you read back my last pending

          4         question?

          5                   THE COURT REPORTER:  Sure.

          6                            - - - -

          7          (The record was read back by the Reporter.)

          8                            - - - -

          9                   MR. ATLAS:  This is Mr. Atlas.  Just

         10         objection as to form.

         11                   Go ahead, you can answer sort of along the

         12         lines that I've laid out.

         13   A.    As best I can recall, other than discussing the

         14         Gallery, any other parts of the conversation would

         15         have involved my possibly being a defendant and my

         16         relationship with the Garbus law firm.

         17   BY MR. MERVIS:

         18   Q.    Okay, thank you.

         19                   Now, when was the next communication that

         20         you had with any attorney at the Garbus law firm?

         21   A.    Well, I don't have a record in front of me.  But

         22         subsequent to my first conversation with Mr. Garbus,

         23         I had conversations, by e-mail and by telephone,

         24         with Mr. Hernstadt.

         25   Q.    Do you have any of those -- did you save any of


          1         those e-mails?

          2   A.    Yes.

          3   Q.    Do you have any hard copies of those e-mails in your

          4         possession today?

          5   A.    No, I do not.

          6                   MR. MERVIS:  Let me just interrupt the

          7         questioning.

          8                   Mr. Atlas, I'd call for the production of

          9         hard copies of those e-mails.

         10                   MR. ATLAS:  We'll take it under

         11         advisement.  Obviously, to the extent it deals with

         12         him testifying as an expert in this case, I would

         13         assume I'd have no objection to it.  But I haven't

         14         seen it, so I'd have to see it first.

         15                   MR. MERVIS:  Sure, obviously.  Thank you

         16         for your attention.

         17   BY MR. MERVIS:

         18   Q.    This is Mr. Mervis, again.

         19                   Dr. Touretzky, do you have any

         20         recollection as to the substance of those e-mails?

         21         In other words, what did they say?

         22   A.    We were discussing the preparation of a declaration

         23         to be submitted in this case.

         24   Q.    And is that the declaration that I referred to

         25         earlier, which is the April, I think it's 29th,


          1         declaration?

          2   A.    April 27th, yes.

          3   Q.    I'm sorry, April 27th.

          4                   Is that right?

          5   A.    Yes.

          6   Q.    Did you exchange, for example, drafts of the

          7         declaration?

          8   A.    Yes.

          9   Q.    Do you recall anything more specific about the

         10         content of your e-mail correspondence with

         11         Mr. Hernstadt?

         12   A.    Well, in addition to discussing the drafts, we

         13         discussed the possibility of my being deposed in

         14         this case.  And just recently we exchanged some

         15         e-mail containing a draft of an article, which I

         16         believe has been provided to you.

         17   Q.    Yes, that's right.

         18                   When did you provide that draft of the

         19         article to the Garbus firm?

         20   A.    The first draft was a few days ago, and the draft

         21         you have today was sent last night.

         22   Q.    I got you.  All right.

         23                   Can you recall anything else about the

         24         content of your e-mail correspondence with

         25         Mr. Hernstadt?


          1   A.    I don't recall anything else at the moment.

          2   Q.    About how many phone conversations have you had with

          3         Mr. Hernstadt since the first time you talked to

          4         him?

          5   A.    Probably half a dozen.

          6   Q.    When was the last one?

          7   A.    This morning or yesterday.  I think yesterday.

          8   Q.    What did you and Mr. Hernstadt talk about yesterday?

          9   A.    The scheduling of my deposition.

         10   Q.    Anything else?

         11   A.    I think it was this morning.  We talked about his

         12         intention to provide this article to your firm.

         13   Q.    Anything else?

         14   A.    No, I don't think so.

         15   Q.    You said this morning was when you had that

         16         conversation?

         17   A.    Yes.

         18   Q.    Prior to this morning's conversation, when was the

         19         last time that you spoke to Mr. Hernstadt?

         20   A.    We've spoken several times over the last few days

         21         about scheduling the deposition.

         22   Q.    And during those conversations do you recall whether

         23         there was any other topic but the scheduling of this

         24         deposition?

         25   A.    I don't believe there were other topics.


          1   Q.    And prior to those series of phone calls, when was

          2         the last time that you spoke with Mr. Hernstadt?

          3   A.    I can't recall.

          4   Q.    Apart from those telephone calls to Mr. Hernstadt

          5         that we had just gone over, do you recall anything

          6         that either you or Mr. Hernstadt said during these

          7         conversations?

          8   A.    Well, we discussed Mr. Hart very briefly.

          9   Q.    What did you talk about in regard to Mr. Hart?

         10   A.    I pointed out that Mr. Hart had previously

         11         represented the Church of Scientology.

         12   Q.    And you pointed that out to Mr. Hernstadt?

         13   A.    Yes, I did.

         14   Q.    Did you say anything more than that about that

         15         topic?

         16   A.    Not recently, no.

         17   Q.    I'm sorry, not recently?

         18   A.    No, not in the most -- most recent discussions.  I

         19         believe I forwarded him an e-mail -- no, I'm sorry.

         20         I forwarded to him a Usenet posting that had been

         21         made some time ago, which was a piece of a

         22         deposition where Mr. Hart was present.

         23   Q.    Yes, I think I've seen that.  It's fairly amusing.

         24         That would be the deposition of Mr. Miscavitch?

         25   A.    That's correct.


          1   Q.    Yes, I've read that.  I'm sure Mr. Hernstadt enjoyed

          2         it.

          3                   Did you have any other discussion with

          4         Mr. Hernstadt about Mr. Hart and his representation

          5         of the Church of Scientology?

          6   A.    No.

          7   Q.    Can you remember anything else that you and

          8         Mr. Hernstadt talked about during any of your

          9         conversations prior to the few conversations we

         10         discussed that happened most recently?

         11   A.    No.

         12   Q.    Did you take any notes during any of those

         13         conversations?

         14   A.    No.

         15   Q.    And let me, actually, be more specific.

         16                   Have you taken any notes during any of

         17         your conversations with Mr. Hernstadt?

         18   A.    No, I have not.

         19   Q.    Have you ever made any kind of written record about

         20         any of your conversations with Mr. Hernstadt?

         21   A.    I don't believe I've made any record at all.

         22   Q.    Apart from e-mail correspondence, have you ever had

         23         any other form of correspondence with Mr. Hernstadt?

         24   A.    I did fax his office a copy of the subpoena that I

         25         received in this case.


          1   Q.    Apart from that one facsimile, anything else?

          2   A.    No.

          3   Q.    And have you ever corresponded with Mr. Garbus?

          4   A.    Yes.

          5   Q.    And when was that, sir?

          6   A.    Well, I've exchanged e-mails with both him and

          7         Mr. Hernstadt.  In many cases I sent the same

          8         message to both of them.

          9   Q.    I understand.

         10                   To the extent that -- this is to

         11         Mr. Atlas.

         12                   David, to the extent that there are

         13         e-mails that went to Mr. Garbus that did not also go

         14         to Mr. Hernstadt, I'd also call for their

         15         production.

         16                   MR. ATLAS:  Okay.  I'll take it under

         17         advisement.

         18                   MR. MERVIS:  Thank you.

         19   BY MR. MERVIS:

         20   Q.    This is Mr. Mervis, again.

         21                   I'm sorry, Dr. Touretzky, apart from

         22         Mr. Hernstadt and Mr. Garbus, have you spoken with

         23         anybody else at the Garbus firm?

         24   A.    I've spoken with Fredda Tourin, who I believe is

         25         Mr. Garbus's assistant, and I've spoken with


          1         Mr. Atlas.

          2   Q.    How many times have you spoken with Mr. Atlas?

          3   A.    The first time was this morning.

          4   Q.    And I take it this is in regard to deposition

          5         scheduling?

          6   A.    Yes.

          7                   MR. ATLAS:  This is Mr. Atlas.  It was,

          8         but the witness can answer.

          9                   MR. MERVIS:  Thanks.

         10   A.    Yes.

         11   BY MR. MERVIS:

         12   Q.    Is that correct, Dr. Touretzky?

         13   A.    Yes, that's correct.

         14   Q.    Okay.  Thank you.

         15                   What, if anything, did you do to prepare

         16         for today's deposition?

         17   A.    I reviewed my declaration.  I reviewed the essay

         18         that I prepared, which was supplied to you today.

         19         And I have with me here a large binder of readings.

         20         These are documents that are all publicly available

         21         that I had downloaded from the Internet over the

         22         past months, and I reviewed some of those.

         23   Q.    I'm sorry, did you say pleadings?

         24   A.    Readings.

         25   Q.    Oh, readings.


          1   A.    Yes.

          2   Q.    I see.

          3   A.    Articles.

          4   Q.    Articles.  Do the articles have any kind of common

          5         theme?

          6   A.    Well, they all have to do with copyright, the

          7         Digital Millennium Copyright Act, CSS, DeCSS and

          8         this litigation.

          9   Q.    Did anyone at the Garbus firm assist you in

         10         selecting those articles that you put in this

         11         binder?

         12   A.    There's one article that they referred to me.  All

         13         the other articles I found on my own and have not

         14         discussed them with the Garbus firm.

         15   Q.    What's the one article that was referred to you?

         16   A.    It was a press release by Macrovision.

         17   Q.    And you have that with you here -- in the office

         18         there today?

         19   A.    Yes.

         20   Q.    If you need to look at it, that's fine.  I guess I

         21         just want to know what the -- so you can give me

         22         what sort of the general substance of that press

         23         release is.

         24   A.    My recollection is that Macrovision said in their

         25         press release that the cracking of the CSS


          1         encryption algorithm was not important, that it

          2         would not threaten the ability of the Motion Picture

          3         Industry to protect its content.

          4   Q.    And was there a particular attorney at the Garbus

          5         firm who referred you to that press release?

          6   A.    The referral was made in e-mail, and it may have

          7         come from Fredda Tourin.  I don't know.

          8   Q.    About when did you receive that e-mail?

          9   A.    Several seeks ago.

         10   Q.    Was there any explanation or other instructions in

         11         that e-mail?

         12   A.    The e-mail just said that this was an interesting

         13         article.

         14   Q.    Now, the declaration, the April 27th declaration --

         15         and I suppose I might as well have the reporter mark

         16         it as Touretzky 1.

         17                   MR. ATLAS:  Touretzky 1, okay.

         18                            - - - -

         19                   (Touretzky Deposition Exhibit No. 1 marked

         20         for identification.)

         21                            - - - -

         22            (There was a discussion off the record.)

         23                            - - - -

         24   BY MR. MERVIS:

         25   Q.    Dr. Touretzky, about how long did the drafting


          1         process take before you got to the final version of

          2         your declaration, which is marked for identification

          3         as Exhibit 1?

          4   A.    My recollection is that I received the first draft

          5         from Mr. Hernstadt.  I edited it and sent it back.

          6         And that was the final draft.

          7   Q.    And, I'm sorry, the draft that you received from

          8         Mr. Hernstadt, was that in e-mail form?

          9   A.    Yes.

         10   Q.    And did you print out a hard copy at the time?

         11   A.    No, I did not.

         12   Q.    And when you edited it, did you edit it on the

         13         computer?

         14   A.    Yes.

         15   Q.    In soft copy?

         16   A.    Yes.

         17   Q.    And you sent it back to him by e-mail?

         18   A.    Yes, I did.

         19                   MR. MERVIS:  Dave, just so there's no --

         20         it shouldn't be confusing, but this, obviously,

         21         would be one of the documents that we'd certainly

         22         like to see.

         23                   MR. ATLAS:  Okay.  Again, we'll take it

         24         under advisement.

         25   BY MR. MERVIS:


          1   Q.    This is Mr. Mervis, again.

          2                   Prior to receiving Mr. Hernstadt's draft,

          3         had you had discussions with him about what the

          4         content of the declaration ought to be?

          5   A.    Yes.

          6   Q.    Do you recall anything about those discussions?

          7   A.    Yes.  I explained to him about the Gallery and what

          8         the exhibits were and the point that the Gallery was

          9         trying to communicate.  And then Mr. Hernstadt, in

         10         his draft, tried to convey what I had tried to

         11         convey to him.

         12   Q.    Did you have a discussion -- well, let me ask you

         13         this:  How did it come to be that Mr. Hernstadt did

         14         the first draft as opposed to yourself?

         15   A.    I think they got tired of waiting for me to produce

         16         a first draft.

         17   Q.    I think that's a perfectly good explanation.

         18                   So you looked at it, and you edited it

         19         once and then -- I'm sorry, and then you said that

         20         was it, that was the final draft?

         21   A.    That's my recollection.  Now, they did -- they

         22         wanted me to sign it, and they wanted it to have a

         23         caption.

         24   Q.    Right.

         25   A.    So they sent me back the document in Microsoft Word


          1         format because it had a proper caption.

          2   Q.    I see.

          3   A.    So I got that back from them.  And that I printed

          4         out and signed and sent to them.  And I did make one

          5         other edit in that document.  I changed my name,

          6         which they had put as Dave Touretzky.  It should

          7         have been David S.  And so I made that one edit in

          8         their Microsoft Word document and sent that back to

          9         them.

         10   Q.    I'm sorry, where did you make that change in the

         11         document?

         12   A.    In the caption and in the first line of the text.

         13   Q.    I'm sorry, and you say you changed it to David S.

         14         Touretzky?

         15   A.    Yes.

         16   Q.    Not that it's all that important, but the document

         17         that we marked as Exhibit 1, just so we see if it's

         18         the same one, at the very beginning, below the

         19         caption box, how did your name read?

         20   A.    So the Exhibit 1 that you have is the version that I

         21         edited and sent back to them.

         22   Q.    Right.

         23   A.    And that reads David S.

         24   Q.    I see.  All right.

         25                   Well, why don't we go off the record for a


          1         second.

          2                            - - - -

          3            (There was a discussion off the record.)

          4                            - - - -

          5                   MR. ATLAS:  Mr. Touretzky, if you could

          6         just explain the circumstances under which the

          7         affidavit that was filed in court says Dave

          8         Touretzky and not David S. Touretzky.

          9                   THE WITNESS:  Yes.

         10   A.    After I e-mailed the draft back to Mr. Hernstadt, he

         11         needed a signed copy with a proper caption.  And in

         12         order to do that, he sent me their Microsoft Word

         13         version.  And when I looked at that, I noticed that

         14         they had my name as Dave.  And I prefer David S. in

         15         professional correspondence, so I changed it to

         16         David S.  I printed that out, and that is what I

         17         sent back to them.

         18                   But my understanding is that they had

         19         already filed their version.  When I sent it back, I

         20         didn't alert them that I had made this change

         21         because I didn't realize they would be filing their

         22         version instead of my signed copy.

         23   BY MR. MERVIS:

         24   Q.    All right.  Well, we'll work through the text, and

         25         presumably it will be the same.


          1                   Let me ask you -- before we get to the

          2         declaration in full, let me just ask you one other

          3         question:  Have you been asked to testify at the

          4         trial of this case, Dr. Touretzky?

          5   A.    It's my understanding that I will be asked to

          6         testify, yes.

          7   Q.    But as far as -- hang on one second.

          8                   But as of this date you have, in fact --

          9         no one has, in fact, asked you to do so; is that

         10         right?

         11   A.    Well, I think they've asked me to, but they don't

         12         have a date yet.

         13   Q.    I see.  And if you're asked to do so, will you do

         14         so?

         15   A.    Yes.

         16   Q.    Now, as I understand it, you're, apparently, going

         17         to be out of the country in the coming weeks?

         18   A.    I'm leaving tomorrow.

         19   Q.    And how long are you going to be away?

         20   A.    I'll be returning on the 22nd.

         21   Q.    Now, by the way, in connection with the work that

         22         you've done with the Frankfurt Garbus firm on this

         23         case, have you received any kind of compensation?

         24   A.    No.

         25   Q.    Have you ever had any conversations with Eric


          1         Corley?

          2   A.    I have not.

          3   Q.    Have you ever had any kind of communication with

          4         Eric Corley?

          5   A.    None whatsoever.

          6   Q.    Now, before we start looking at particular passages

          7         from the declaration, let me try this:  What is it

          8         that you understand -- withdrawn.

          9                   Could you give me the bottom line opinions

         10         that you would like to offer at the trial of this

         11         case?

         12   A.    Yes.  I think there are three ideas I'm trying to

         13         communicate.  The first is that computer code

         14         written in a high level language, such as C, has

         15         expressive content.  The second is that it's not

         16         possible to distinguish between computer code and

         17         other forms of expression, such as plain English.

         18         And the third point is that it's not possible to

         19         distinguish between what people call source code and

         20         what they call object code.

         21   Q.    And has anyone asked you to offer opinions at the

         22         trial on subjects other than the three subjects

         23         you've enumerated?

         24   A.    No.

         25   Q.    I'm sorry, just bear with me.


          1                   If you could turn, Dr. Touretzky, to page

          2         two of your declaration, which is marked as Exhibit

          3         1 for identification.

          4   A.    Yes.

          5   Q.    Referring you to paragraph two of your declaration,

          6         if you could take a look at the very last sentence,

          7         which I'll read.  It says:  I do not link to the

          8         binary executable file for the program known as

          9         DeCSS.

         10                   Did I read that correctly, Doctor?

         11   A.    Yes.

         12   Q.    Is that still the case?

         13   A.    That is still the case.

         14   Q.    Why is it that you don't link to the binary

         15         executable file for DeCSS?

         16   A.    It was a strategic decision on my part.  I want to

         17         make as clear a case as possible that the

         18         publication of source of C level -- high level

         19         language code, such as C code, is protected by the

         20         First Amendment.  Although I believe that object

         21         code deserves the same protections, I wanted to make

         22         a case that was as short and simple as possible and

         23         not get bogged down in arguments about the legal

         24         status of binary executable code.

         25   Q.    Now, taking a look at the very next paragraph, in


          1         fact, the very next sentence, which reads:  It is my

          2         belief that source code is expressive speech

          3         meriting the full protection of the First Amendment.

          4                   Can you tell me, sitting in Pittsburgh

          5         today, the basis of that belief?

          6   A.    Well, I've been programming computers for 25 years,

          7         and much of my activities involve expressing my

          8         ideas in source code and reading source code written

          9         by other people.

         10   Q.    And I take it that experience has led you to believe

         11         that source code is worthy of, as you say, a First

         12         Amendment protection?

         13   A.    Yes.

         14   Q.    Now, let me pose a couple of -- well, let me ask you

         15         this:  You're familiar with the computer virus that

         16         was recently in the news called the Melissa virus?

         17   A.    Yes, I am.

         18   Q.    Is that a computer code?

         19   A.    Yes.

         20   Q.    And there's source code for that?

         21   A.    I believe there is, yes.

         22   Q.    In your opinion, would that source code be a form of

         23         expression that's worthy of First Amendment

         24         protection?

         25   A.    Absolutely.


          1   Q.    Let me just give you a hypothetical.  Supposing that

          2         access to a nuclear warhead -- I'm sorry, access to

          3         the triggering mechanism of a nuclear warhead was

          4         protected by an encryption system and suppose that

          5         someone had developed a software utility to

          6         circumvent that encryption system, would the source

          7         code for that hypothetical utility, would that be

          8         expression that's protected under the First

          9         Amendment?

         10                   MR. ATLAS:  I'll object to that question.

         11         But, Dr. Touretzky, if you think you can answer it,

         12         go ahead.

         13   A.    Well, as I understand the question, you're asking me

         14         whether expression that threatens national security

         15         enjoys First Amendment protection.

         16   BY MR. MERVIS:

         17   Q.    Well, I suppose that was the gist of it, yes.  But,

         18         I mean, whether or not it threatens national

         19         security, I guess my question is, given those two

         20         assumptions, would that hypothetical source code

         21         constitute expression worthy of First Amendment

         22         protection?

         23                   MR. ATLAS:  This is Mr. Atlas, again.

         24         Just one other objection.  As far as I know,

         25         Dr. Touretzky is not a lawyer.  His answer should,


          1         in no means, be interpreted as a legal conclusion.

          2         But from a layperson's perspective, Dr. Touretzky

          3         can answer, if he has an opinion.

          4   A.    I think in principle it deserves First Amendment

          5         protection.  But I have to allow that it may be the

          6         case, then, if this particular code did pose an

          7         immediate and grave risk to national security, then

          8         it may be permissible to limit its distribution in

          9         that case.

         10   BY MR. MERVIS:

         11   Q.    I'm sorry, just bear with me for a second.

         12                   If you could turn to the next page,

         13         Dr. Touretzky, page three.

         14   A.    Yes.

         15   Q.    And take a look at the first sentence of paragraph

         16         four where you wrote, I am concerned that this

         17         court, referring to Judge Kaplan, issued an order

         18         prohibiting the defendants from posting source code

         19         for CSS decryption algorithms on the Internet.

         20                   Apart from my little editorial, did I read

         21         that correctly?

         22   A.    Yes, you did.

         23   Q.    And I take it -- today do you still have that

         24         concern?

         25   A.    Yes, I do.


          1   Q.    Can you tell me, sitting there today, what the basis

          2         of that concern is?

          3   A.    I believe the court is depriving the defendants of

          4         their First Amendment rights.

          5   Q.    And why is that?

          6   A.    Because the court is prohibiting speech.

          7   Q.    I take it that you are sympathetic to the

          8         defendants' position in this case?

          9   A.    Yes.

         10   Q.    If you could take a look at Exhibit B to your

         11         declaration, which has been marked as Exhibit 1 for

         12         identification.

         13                   MR. ATLAS:  This is Mr. Atlas.  Just give

         14         me a second so that I can find what we're referring

         15         to.

         16                   Off the record.

         17                            - - - -

         18            (There was a discussion off the record.)

         19                            - - - -

         20   A.    I'd like to point out that I don't have a copy of

         21         what was filed as the Appendix B.  I have printed

         22         out the Gallery myself.

         23   BY MR. MERVIS:

         24   Q.    Oh, okay.  And what date?

         25   A.    And that's what I have with me.  I printed this out


          1         last night.

          2   Q.    Well, that's good, because I have one I printed out

          3         about an hour ago.  So it probably -- has it

          4         changed?

          5   A.    No, it has not.

          6                   MR. ATLAS:  The one that's attached as, I

          7         guess, Exhibit B, this is Mr. Atlas, by the way, to

          8         the declaration is dated 4/28, 2000.  It looks like

          9         it was printed out at 2:02 p.m.

         10                   So I've got no objection to you asking

         11         questions, but let's just be clear that we're all on

         12         the same page and we're looking at the same

         13         language.

         14                   MR. MERVIS:  Well, I guess it's possible

         15         we're not all on the same page.  But I think -- and

         16         let's do this:  Mr. Atlas, if what I'm about to read

         17         is different on your version, let me know.

         18                   MR. ATLAS:  Okay.

         19                   MR. MERVIS:  Because I'm only looking at

         20         one sentence.

         21                   MR. ATLAS:  Okay.

         22   BY MR. MERVIS:

         23   Q.    Dr. Touretzky, looking to the third paragraph on the

         24         Gallery and the very last sentence, and you've

         25         written:  This Web site was created to explore this


          1         issue and point out the absurdity of Judge Kaplan's

          2         position that source code can be legally

          3         differentiated from other forms of written

          4         expression.

          5                   Did I read that correctly?

          6   A.    Yes, you did.

          7   Q.    Now, is it still your position, as you sit there

          8         today, that Judge Kaplan's position that source code

          9         can be legally differentiated from other forms of

         10         written expression is absurd?

         11   A.    With apologies to the judge, yes, it is.

         12   Q.    I take it you've read Judge Kaplan's decision?

         13   A.    I read the preliminary injunction, yes.

         14   Q.    Right.  And it's your understanding that in that

         15         decision he draws a distinction, a legal

         16         distinction, between source code and other forms of

         17         written expression?

         18   A.    Yes.

         19   Q.    Do you have a copy of the decision with you today?

         20   A.    I do.  It will take me a minute to pull it out of

         21         this binder, if you'll bear with me.

         22   Q.    That's fine.

         23   A.    Okay, what I see here is a memorandum Order dated

         24         February 2nd of 2000.

         25   Q.    All right.


          1                   Why don't we ask the reporter to mark that

          2         as an exhibit.

          3                            - - - -

          4            (There was a discussion off the record.)

          5                            - - - -

          6   BY MR. MERVIS:

          7   Q.    Getting back to your comment in your Gallery,

          8         Dr. Touretzky, regarding the absurdity of the

          9         position that you indicate Judge Kaplan has taken,

         10         why do you think it's absurd?

         11   A.    In his memorandum and in his -- in the transcript

         12         that I recall reading of the hearing, Judge Kaplan

         13         said that he did not wish to enjoin discussion of

         14         the DeCSS algorithm.  He only wished to enjoin

         15         computer code.

         16                   The problem with that position is that

         17         it's a trivial matter to translate the computer code

         18         into conversational English.  And I've done so, and

         19         that is supplied as one of the exhibits in the

         20         Gallery.

         21   Q.    Right.

         22   A.    Well, once one has a copy of the plain English

         23         description, it's, again, a trivial matter to

         24         convert that back to C source code or to source code

         25         in some other programming language.  And so Judge


          1         Kaplan's prohibition has no real effect.

          2   Q.    Let me direct you back to paragraph four of your

          3         declaration, Exhibit 1 for identification.  We've

          4         already gone over the first sentence.  I want to

          5         direct your attention to the next two sentences --

          6         I'm sorry, the next three.  If you could just read

          7         those to yourself, and let me know when you finish.

          8                   MR. ATLAS:  Actually, could we just read

          9         them out loud just so that I'm clear that we're all

         10         reading from the same document?

         11                   MR. MERVIS:  All right.  I don't mind.  I

         12         read fairly well.

         13   BY MR. MERVIS:

         14   Q.    As a scientist, I feel it is imperative that anyone,

         15         not just academics, be allowed to participate in the

         16         ongoing analysis and improvement of encryption

         17         technologies.  This requires a dialogue among all

         18         interested parties who must be free to engage in

         19         their own testing and reverse engineering and to

         20         openly discuss the algorithms and their

         21         implementation.  A normal part of such discussions

         22         among computer scientists is the sharing of source

         23         code.

         24                   Did I read that correctly, Dr. Touretzky?

         25   A.    Yes, you did.


          1   Q.    Let me ask you this, sir:  As you understand it,

          2         how, if at all, does Judge Kaplan's injunction

          3         affect the things that you express concern about in

          4         the sentences I just read?

          5   A.    Judge Kaplan has enjoined the publication of source

          6         code, and that will hinder the ability of people to

          7         discuss these algorithms.

          8                   As I showed in the Gallery, it doesn't --

          9         it doesn't absolutely prohibit it, prohibit

         10         discussion, because it's a trivial matter to turn C

         11         into English and English into C, but it's certainly

         12         an inconvenience.  And I think Judge Kaplan's

         13         intention was to do more than inconvenience people.

         14   Q.    Well, let me ask you this:  Let's say you were

         15         interested in having a discussion with like-minded

         16         people about encryption technologies.

         17                   You could do that through e-mail, couldn't

         18         you?

         19   A.    Certainly.

         20   Q.    And you could, if you wanted to study source code in

         21         connection with the discussion of encryption

         22         technologies, you could send copies of the source

         23         code back and forth by e-mail, correct?

         24   A.    Yes.

         25   Q.    Have you heard the term or such a thing as a private


          1         Internet Web site?

          2   A.    I understand the concept.

          3   Q.    Can you tell me what your understanding is?

          4   A.    My understanding is that it would be a Web site

          5         where access is restricted in some way, perhaps by

          6         use of a password.

          7   Q.    And, hypothetically, if like-minded people wished to

          8         discuss encryption technology and in the process

          9         study source code, at least hypothetically they

         10         could get together, form a private Web site and post

         11         the source code on that site, correct?

         12   A.    They could do that, yes.

         13   Q.    Turning to the very next sentence of your -- well,

         14         let me -- I'm sorry, let me ask you this:  Given

         15         that -- well, is it correct that -- withdrawn.  I'll

         16         get back to that.

         17                   In the next sentence -- let me just read

         18         it for the record.  The next sentence you write, it

         19         is clear to me that some of the Web sites presently

         20         posting and/or linking to DeCSS or the css-auth

         21         decryption routines are primarily part of the

         22         Internet-based scientific/intellectual dialogue

         23         described above, especially those sites operated by

         24         developers of DVD applications or by cryptographers.

         25                   Did I read that correctly?


          1   A.    Yes, you did.

          2   Q.    Let's go to the very beginning of the sentence when

          3         you say that it's clear to me that some of the

          4         sites.

          5                   Which sites did you have in mind when you

          6         wrote this?

          7   A.    Well, for example, the Cryptome Web site operated by

          8         John Young provides the DeCSS program and the

          9         css-auth source.  I believe both.  There's a site

         10         called OpenDVD.org.

         11                   There are Web sites devoted to the Livid

         12         Development Group.  Livid is a DVD player for the

         13         Linux Operating System.  And I believe those Web

         14         sites make the code available as well.  And Frank

         15         Stevenson, who I know has filed a declaration in

         16         this case, maintains a Web site in which he has some

         17         decryption code available.

         18   Q.    I'm sorry, any other sites that you were referring

         19         to when you're referring to some Web sites?

         20   A.    Those are all the ones I can think of off the top of

         21         my head.

         22   Q.    Do you think you saw others?

         23   A.    I probably did, but I can't be certain.

         24   Q.    Any idea as to how many?

         25   A.    In addition to the ones I named, the ones that were


          1         clearly devoted to cryptography or DVD applications,

          2         I would imagine only one or two beyond what I've

          3         named already.  I haven't looked for those kinds of

          4         Web sites.

          5   Q.    And, I'm sorry, why is it that you haven't looked

          6         for them?

          7   A.    I'm not particularly interested if cryptography.

          8   Q.    I understand.

          9                   Now, I take it that of the four that you

         10         listed and of the two others, your recollection is

         11         that those sites have, in addition to DeCSS code,

         12         various discussions of cryptography?

         13   A.    Either cryptography or video applications.

         14   Q.    Do you know or have you ever tried to make a study

         15         of how many sites are available right now on the

         16         World Wide Web that have the DeCSS either executable

         17         or source code on them?

         18   A.    The estimate that I read was somewhere around three

         19         to four hundred.

         20   Q.    And have you ever examined or done any kind of study

         21         as to what number of those three to four hundred

         22         make the code available but have no discussion of

         23         either cryptography, reverse engineering or any

         24         other computer science-related topic?

         25   A.    No, I haven't done that kind of study.


          1   Q.    Getting back to my hypothetical about, say, the

          2         private Web site where like-minded individuals who

          3         are interested in cryptography could study source

          4         code because they could have it posted up there, in

          5         your opinion, what is the difference between

          6         obtaining or studying the source code through that

          7         private Web site as opposed to obtaining it through

          8         the 2600 Web sites?

          9   A.    I think there are two differences.  First of all, if

         10         discussion was restricted to this private Web site,

         11         people with a casual interest would not be able to

         12         obtain access to the material.  And, secondly, if

         13         people were required to only discuss the source code

         14         on this private Web site, they would be denied their

         15         First Amendment rights.

         16   Q.    And how would that be, sir?

         17   A.    Because the First Amendment does not say that one

         18         can discuss things in private but not in public.

         19   Q.    I see.  I take it it's your view that the posting of

         20         an executable utility on a Web site is a form of

         21         discussion?

         22   A.    Well, let's first be clear about what you mean by

         23         executable.

         24   Q.    Well, I appreciate your point that, perhaps, there

         25         isn't a difference.  But what I mean is machine


          1         readable code that can be downloaded and run on a

          2         Windows operating system.

          3                   MR. ATLAS:  This is Mr. Atlas.  I object

          4         to the form.

          5   A.    My belief is that posting machine executable code is

          6         posting speech.

          7   BY MR. MERVIS:

          8   Q.    Are you aware that the DeCSS code is, for example,

          9         being offered on the eBay auction site for sale?

         10   A.    No.  I had no idea.

         11   Q.    Well, assuming, hypothetically, that that were the

         12         case, would that be a form of speech or discussion?

         13                   MR. ATLAS:  Objection.

         14                   Are you referring to the offering for sale

         15         or the code itself?

         16                   MR. MERVIS:  I'm talking about the

         17         offering for sale of the code.

         18                   MR. ATLAS:  I'll object.

         19                   But if you can answer that, go ahead.

         20   A.    My understanding is that such an offer would be

         21         commercial speech.

         22   BY MR. MERVIS:

         23   Q.    Let me ask you this:  Do you know what DeCSS does?

         24   A.    Yes.

         25   Q.    What does it do?


          1   A.    DeCSS converts a DVD file from one format to

          2         another.

          3   Q.    And from what format to what format?

          4   A.    It converts it from a scrambled format to one where

          5         the CSS scrambling has been undone.

          6   Q.    And is the byproduct of that process a copy of the

          7         DVD's VOB files in unencrypted form?

          8   A.    That's my understanding.

          9   Q.    We're actually hitting the homestretch here.

         10                   Let's turn, now, to paragraph seven of

         11         your declaration.

         12   A.    Yes.

         13   Q.    I'm sorry, just give me one second.

         14                   Let me read the final sentence of this

         15         paragraph.  You say, thus I believe the mirror sites

         16         are making a political statement, even when the

         17         prohibited files are posted without additional

         18         commentary.

         19   A.    That's correct.

         20   Q.    And that's your opinion, correct?

         21   A.    Yes.

         22   Q.    Now, can you tell me, Dr. Touretzky, what skills,

         23         education or special experience that you apply, if

         24         any, in reaching that opinion?

         25   A.    It's based on my personal experience.  When I first


          1         read about the California case, my immediate

          2         reaction was to put the source code for css-auth on

          3         my Web site.

          4   Q.    And why was that?

          5   A.    For three reasons:  First, because I felt that I had

          6         the right to do so and I wanted to exercise my First

          7         Amendment right; second, because I felt the

          8         plaintiffs were being treated unjustly and I wanted

          9         to make a gesture in solidarity with the plaintiffs

         10         in the California case; and, third, because I

         11         thought the basis of the California case, which was

         12         a trade secrets claim, was ludicrous.

         13   Q.    The plaintiffs in that case or the defendants in

         14         that case?

         15   A.    I thought the plaintiffs' claim in the California

         16         case -- the plaintiffs were claiming a trade secret

         17         violation.  I thought the claim was ludicrous.  And

         18         being aware that Pennsylvania has not adopted the

         19         Uniform Trade Secrets Act, I decided to put the CSS

         20         -- the DeCSS source code -- actually, the css-auth

         21         source code on my Web site, being a Pennsylvania Web

         22         site, where it would not be subject to these

         23         ludicrous trade secret claims.

         24   Q.    I'll get to that in just a minute.  I think you may

         25         have misspoken.


          1                   MR. ATLAS:  Yes.  Again, just to clarify

          2         the record, and you can have the statement read

          3         back, but I think Dr. Touretzky said something along

          4         the lines of he posted the code in sympathy for the

          5         plaintiffs' position in the California lawsuit.

          6                   I think you probably meant the defendants'

          7         position.  But if I'm wrong, why don't we just

          8         clarify that now.

          9   A.    I'm sorry.  I meant to say the defendants' position

         10         in the California case.

         11   BY MR. MERVIS:

         12   Q.    And I think you may have also said, but let me just

         13         ask you:  I take it you feel or felt that the

         14         defendants in the California case were being treated

         15         unjustly; is that correct?

         16   A.    Yes.

         17   Q.    Why is that?

         18   A.    Because the DVD Copy Control Association brought a

         19         lawsuit against them when they had no grounds to do

         20         that.

         21   Q.    And is it correct that you similarly feel that the

         22         defendants in this case, the Universal City Studios

         23         case, are being treated unjustly?

         24   A.    I think this case is a little bit harder because

         25         there's bad law.  So I'm -- perhaps one could say


          1         that the Motion Picture Association is trying to

          2         make use of bad law, but at least the claim isn't

          3         completely ludicrous.

          4   Q.    And when you say bad law, you're referring to the

          5         Digital Millennium Copyright Act?

          6   A.    Yes.

          7   Q.    Now, getting back to paragraph seven, I think the

          8         question I posed to you was what skills, education

          9         or professional experiences you brought to bear in

         10         reaching the opinion that you expressed in paragraph

         11         seven.  I think you told me that it was personal

         12         experience.

         13                   Apart from the three immediate conclusions

         14         that you drew about the California lawsuit, i.e.,

         15         that you had sympathy for the defendants' position,

         16         the defendants were being treated unjustly and --

         17   A.    Those two are the same.

         18   Q.    Right.  I'm sorry.  -- and that the basis of the

         19         plaintiffs' claim was ludicrous --

         20   A.    And that I wanted to exercise my First Amendment

         21         rights.

         22   Q.    Thank you for correcting me.

         23                   What other skills, education or experience

         24         did you bring to bear in reaching the conclusion

         25         expressed in -- or, I'm sorry, the opinion expressed


          1         in paragraph seven?

          2                   MR. ATLAS:  This is Mr. Atlas.  I object

          3         as to form, but go ahead.

          4   A.    Well, I've seen other cases where people posted

          5         documents whose distribution had been prohibited.

          6   BY MR. MERVIS:

          7   Q.    I'm sorry, and what cases were they?

          8   A.    Well, one example is various scientology cases.

          9   Q.    Right.  Okay, I'm sorry.  You're not talking about

         10         DeCSS?

         11   A.    That's correct.

         12   Q.    You're talking about other litigation which I'm

         13         fairly familiar with.

         14   A.    Yes.

         15   Q.    In reaching the opinion that you state in the last

         16         sentence of paragraph seven, did you draw upon any

         17         of your experience, educational, practical or

         18         otherwise, as a computer scientist?

         19   A.    Well, I think only the experience that I believe all

         20         computer scientists view code as speech.  And

         21         certainly all the computer scientists that I've

         22         spoken with view the attempt to prohibit publication

         23         of computer code as an attack on the First

         24         Amendment.

         25   Q.    Okay.  I understand.


          1                   But apart from that, apart from that, you

          2         can't identify any other skills, education or

          3         experience, as a computer scientist, that you

          4         brought to bear in reaching the opinion you state in

          5         the last sentence of paragraph seven?

          6   A.    That's correct.

          7   Q.    Now, getting back to the California case for a

          8         minute, and I promise you I'm almost finished, why

          9         is it that you believe that the DVD CCA's claims

         10         were ludicrous?

         11   A.    Because one cannot misappropriate a trade secret by

         12         downloading a publicly-available file from an

         13         Internet Web site.

         14                   MR. MERVIS:  Mr. DeForest, have you

         15         received the fax, the one-page fax?

         16                   MR. DeFOREST:  I have.

         17                   MR. MERVIS:  Mr. Atlas, you have that?

         18                   MR. ATLAS:  I've got it.

         19                   MR. MERVIS:  Could we ask the reporter to

         20         mark that as Touretzky 2?

         21                   MR. ATLAS:  Is it something entitled MPAA

         22         Violating Rights?

         23                   MR. MERVIS:  Correct.

         24                            - - - -

         25                   (Touretzky Deposition Exhibit No. 2 marked


          1         for identification.)

          2                            - - - -

          3   BY MR. MERVIS:

          4   Q.    Dr. Touretzky, the court reporter has, presumably,

          5         passed you a copy of a document I faxed to you that

          6         I printed off your Web site this morning.

          7                   Do you recognize Exhibit 2?

          8   A.    Yes, I do.

          9   Q.    Is this something you wrote?

         10   A.    Yes.

         11   Q.    Why did you write this?

         12   A.    I wrote a letter to the editor of the school

         13         newspaper, the Tartan, because the previous week the

         14         Tartan had run an article about the MPAA objecting

         15         to a couple of Web sites at Carnegie Mellon,

         16         including mine.

         17   Q.    I want to direct your attention to the final

         18         paragraph.  And paying particular attention to the

         19         second sentence, which reads, the DMCA is a poorly

         20         constructed law written by the industry itself and

         21         has not yet been tested in the courts.

         22                   Did I read that correctly?

         23   A.    Yes.

         24   Q.    Is it your opinion, as you sit there today, that the

         25         DMCA is a poorly constructed law?


          1   A.    Yes.

          2   Q.    And is it your belief, as you sit there today, that

          3         the DMCA was written by the industry itself?

          4   A.    I believe there was input from other groups, but I

          5         believe the primary impetus for this law was the

          6         Motion Picture Industry, at least for this section

          7         of the law.

          8   Q.    This section being the anti-circumvention provision?

          9   A.    Yes.  I think the Motion Picture Industry and the

         10         music industry, and I don't easily separate them as

         11         a layman, I believe they were the primary impetus

         12         for this -- for the anti-circumvention provisions.

         13   Q.    I see.  And what is that belief based on?

         14   A.    Reading articles about the controversy surrounding

         15         the law.

         16   Q.    Anything else?

         17   A.    No.

         18   Q.    In the next sentence you write, it curtails some

         19         well-established rights of American citizens in

         20         order to advance the economic interests of a private

         21         cartel.

         22                   Did I read that correctly?

         23   A.    Yes.

         24   Q.    The private cartel is whom?

         25   A.    Your clients.


          1   Q.    And the well-established rights are which rights,

          2         sir?

          3   A.    The rights of their use and the Doctrine of First

          4         Sale.

          5   Q.    First sale.  Any other rights?

          6   A.    Not that I can think of at the moment.  Well, no, I

          7         take that back.  The DMCA is being used by your

          8         clients in an attempt to circumvent the First

          9         Amendment.

         10   Q.    And how is that, sir?

         11   A.    Because they're using the anti-circumvention

         12         provisions to suppress speech.

         13   Q.    And taking a look at the very last sentence of the

         14         Exhibit 2, you write, the MPAA's attempt to

         15         interfere with speech it doesn't like should be

         16         rejected and roundly condemned.

         17                   Did I read that correctly?

         18   A.    Yes.

         19   Q.    Is that still your belief, as you sit there today?

         20   A.    Yes, it is.

         21   Q.    And in writing that sentence, are you referring in

         22         particular to this lawsuit, the Universal City

         23         Studios lawsuit?

         24   A.    Both this suit and the California case.

         25                   MR. MERVIS:  If you could just give me one


          1         moment to review my notes.

          2                   THE WITNESS:  Sure.

          3                            - - - -

          4         (There was a brief pause in the proceedings.)

          5                            - - - -

          6   BY MR. MERVIS:

          7   Q.    Let me just give you one more hypothetical.

          8                   You're familiar with devices that are

          9         used, for example, to descramble scrambled cable

         10         television signals?

         11   A.    I know that they exist.

         12   Q.    Would the distribution of such devices, whether or

         13         not for profit, would that be a form of speech

         14         that's protected by the First Amendment, in your

         15         view?

         16                   MR. ATLAS:  This is Mr. Atlas.  I'm going

         17         to object to that question.  A couple things:  I'm

         18         not clear what you mean by devices.  I believe this

         19         is outside the scope of this witness's testimony and

         20         may be outside of the scope of this witness's

         21         knowledge.  I think the question is objectionable on

         22         a couple of grounds.

         23                   If the witness understands it and can

         24         answer it, I'll let him attempt to do so.

         25   BY MR. MERVIS:


          1   Q.    Dr. Touretzky, do you remember the question?

          2   A.    Yes, I do.

          3   Q.    Are you able to answer it?

          4   A.    Yes.  I think one has to distinguish between three

          5         classes of things.  If the device that you have in

          6         mind is merely a software program, then that device

          7         is speech, and it may not be prohibited.

          8                   If the device in question is a physical

          9         device, something that you can hold in your hand,

         10         then whether that device's distribution should be

         11         prohibited or not would depend on the uses for which

         12         the device was intended.

         13                   So the ability to descramble scrambled

         14         cable signals is not, of itself, grounds for

         15         prohibiting distribution of a device.  I think one

         16         would have to show whether there were significant

         17         non-infringing uses.  And if there were no

         18         non-infringing uses, then I believe it would be

         19         acceptable to prohibit the distribution of the

         20         physical device itself, not distribution of plans

         21         for how to construct such a device.

         22   Q.    If you wrote a computer program and someone without

         23         your authority got a copy and put it on the

         24         Internet, would you have any rights to try to take

         25         it down?


          1                   MR. ATLAS:  Objection.  Again, since the

          2         witness is not a lawyer, I don't know whether he's

          3         able to sort of answer that from a legal point of

          4         view.  I think he can express an opinion from a

          5         layperson's point of view.

          6                   MR. MERVIS:  Well, that's fine.  I'm

          7         asking for his opinion from the point of view of

          8         David Touretzky, with all of his learning knowledge

          9         and experience.

         10   A.    I'd be happy to give you my opinion about copyright

         11         law and to answer your question specifically.

         12   BY MR. MERVIS:

         13   Q.    The opinion on copyright law I'm actually not

         14         interested in.

         15   A.    Okay.

         16   Q.    Although, perhaps, off the record we could talk

         17         about it at length.  I'd be happy to.  But my

         18         hypothetical is really what I'm interested in.

         19   A.    Okay.  Your question was, as I understand it, if I

         20         wrote a computer program and someone else obtained a

         21         copy of it and put it on the Web without my

         22         permission, would I have the right to try and take

         23         it down.

         24   Q.    Right.

         25   A.    And my answer to that is it would depend whether


          1         their use of my program fell within fair use or not.

          2         If it falls within fair use, I would not have the

          3         right.

          4                   MR. MERVIS:  David, there are, obviously,

          5         some documents that, you know, we have asked for

          6         production of and, hopefully, we'll get them.  You

          7         know, pending the receipt of an examination of those

          8         documents, I have no further questions.

          9                   MR. ATLAS:  Okay.  This is Mr. Atlas.

         10                   Now, the first thing I'd like to do is

         11         actually mark as -- let's mark, as Touretzky 3, the

         12         e-mail that Dr. Touretzky sent to me.  It's dated

         13         July 12.  I received it today.  It's an e-mail, and

         14         then it's an essay entitled Source versus Object

         15         Code:  A False Dichotomy.  Let's mark that.

         16                            - - - -

         17                   (Touretzky Deposition Exhibit No. 3 marked

         18         for identification.)

         19                            - - - -

         20            (There was a discussion off the record.)

         21                            - - - -

         22                   MR. ATLAS:  Dr. Touretzky said he had the

         23         essay but not the e-mail that sent it to me.  So

         24         I've asked the reporter to mark just the essay part

         25         of it.


          1                   MR. MERVIS:  That's fine.

          2                            - - - -

          3                          EXAMINATION

          4                            - - - -

          5   BY MR. ATLAS:

          6   Q.    Dr. Touretzky, looking at what we've marked as

          7         Exhibit 3, can you tell me what that is?

          8   A.    This is an essay I wrote about the impossibility of

          9         distinguishing source versus object code.

         10   Q.    And when did you prepare this draft?

         11   A.    This most recent draft, which I sent to you, I sent

         12         last night.

         13   Q.    And the appendices that are attached, it looks like

         14         that there's an Appendix A, Appendix B, C and D, did

         15         you prepare those as well?

         16   A.    Yes.

         17   Q.    What was the point of preparing this statement?

         18   A.    Well, in reviewing other depositions in this case,

         19         I've noticed that the plaintiffs' attorneys have

         20         tried to make a distinction between source code and

         21         object code.  I believe this has come up as well in

         22         some of the arguments in court.  And I also noticed

         23         that some of the other computer scientists that were

         24         deposed tried to explain that that distinction isn't

         25         really a valid one, but I'm not sure that their


          1         point was understood.

          2                   So I wrote this essay in an attempt to

          3         educate both sides as to why it's not valid to make

          4         a distinction between high level source code, such

          5         as expressed in C, and lower level program

          6         representations, including even binary executables.

          7   Q.    Now, going back to the opinions that you testified

          8         you were expressing in this case, I believe there

          9         were three of them.  I won't restate them because I

         10         don't want to be inaccurate.  It's already on the

         11         record.

         12                   But I just want to find out whether the

         13         basis for those three opinions are set forth in what

         14         we've marked as Touretzky Exhibit 3, your essay, as

         15         well as Touretzky Exhibit 1, which is your

         16         declaration.

         17   A.    Yes.

         18   Q.    Let me just go back.  I'm looking through my notes

         19         here.

         20                   Can you summarize for me, Dr. Touretzky,

         21         the experience that you bring to bear on the

         22         opinions that you've expressed in this case?

         23   A.    Yes.  I've been programming computers since I was 12

         24         years old.  I'm a faculty member in a computer

         25         science department at a major university.  I've


          1         taught computer programming and computer

          2         science-related courses to a large number of

          3         audiences of different types.  And I program myself.

          4         I write code.  I publish code, and I use computer

          5         programming to explore ideas.

          6   Q.    The Gallery that has been referred to during your

          7         testimony here, what was the point you were trying

          8         to communicate with your creation of the Gallery?

          9   A.    Well, the real point is that Judge Kaplan tried to

         10         make a distinction that doesn't hold up.  He, in

         11         trying to protect at least some of the defendants'

         12         First Amendment rights, he declined to enjoin

         13         discussion in plain language of the decryption

         14         algorithm.  He only enjoined publication of what he

         15         viewed as executable code.

         16                   What the Gallery shows is that there's no

         17         distinction to be made there, that the C source code

         18         can be trivially transformed into plain English, and

         19         the reverse can also be done.

         20                   So in attempting to enjoin one thing and

         21         not the other, he's tried to make a distinction that

         22         doesn't really exist.

         23   Q.    Well, let me ask you a question that accepting

         24         plaintiffs' argument there is a danger in posting

         25         the source code for DeCSS, would the same danger


          1         exist posting the English translation of the source

          2         code for DeCSS?

          3   A.    Absolutely.

          4                   MR. ATLAS:  I'm just looking through your

          5         declaration, just looking through some notes.  So if

          6         you'll give me a minute, if you don't mind.

          7                   THE WITNESS:  Sure.

          8                            - - - -

          9         (There was a brief pause in the proceedings.)

         10                            - - - -

         11   BY MR. ATLAS:

         12   Q.    Turning to page three of your declaration, paragraph

         13         five.

         14   A.    Yes.

         15   Q.    Looking at the first two sentences, and I'll read

         16         them just to make sure that we're all on the same

         17         page, it says, my Gallery is a combination of

         18         scientific dialogue and political statement.  In

         19         comparing the, quote, anonymous C source code, end

         20         quote, for CSS decryption with the code in css --

         21         I'm not quite sure what that --

         22   A.    Underscored.

         23   Q.    Lower case --

         24   A.    It's an underscore.

         25   Q.    -- underscore descramble.c (part of the css-auth


          1         package), I discuss certain structural and strategic

          2         differences between the two implementations of the

          3         decryption routine.  Without access to the source

          4         code, I would never have been able to discern these

          5         differences or present them to the world for

          6         commentary online.

          7                   Is that accurate?

          8   A.    Yes.

          9   Q.    Could you just explain to me the second sentence

         10         here, why you would never have been able to discern

         11         the differences or to present them to the world for

         12         commentary online?

         13   A.    Well, the differences are differences in

         14         implementation of an algorithm.  If one merely

         15         describes the algorithm in abstract terms,

         16         implementation details don't come up.  It's only by

         17         observing these two implementations of the algorithm

         18         as C source code that I can draw distinctions

         19         between the two implementations.

         20   Q.    You may have answered this already, but I'm going to

         21         ask the question -- a slightly different question, I

         22         think:  Is it your testimony and your belief that

         23         there is a particular value to show the source code

         24         as opposed to the English translation in connection

         25         with the discussion of encryption technologies or


          1         other academic pursuits?

          2   A.    Well, if you translate the source code line by line

          3         into English, as I've done in the Gallery, then

          4         there's no particular value in using one over the

          5         other.  But there are many other ways to describe

          6         the algorithm in English that don't correspond one

          7         for one with lines of C source code.  And some of

          8         those ways are vague.  And, therefore, you can't

          9         have discussions about implementations of something

         10         that's too vague to count as an implementation.

         11                   MR. MERVIS:  I'm sorry, Edna, can I have

         12         the question and answer read back?

         13                   THE COURT REPORTER:  Sure.

         14                            - - - -

         15          (The record was read back by the Reporter.)

         16                            - - - -

         17   BY MR. ATLAS:

         18   Q.    Turn to Touretzky 1, again.  If you could just turn

         19         to page five of that.

         20   A.    Yes.

         21   Q.    Is that your signature on page five?

         22   A.    Yes.

         23   Q.    And other than the fact that your name doesn't

         24         appear in the more formal way that you would have

         25         hoped on page one, is everything in here accurate,


          1         to the best of your knowledge?

          2   A.    Yes.

          3                   MR. ATLAS:  I don't believe I have any

          4         further questions.

          5                   MR. MERVIS:  I may have one or two.

          6                            - - - -

          7                         RE-EXAMINATION

          8                            - - - -

          9   BY MR. MERVIS:

         10   Q.    Dr. Touretzky, what skills would one need to take

         11         the English translation of DeCSS source code and

         12         cause a decryption of a DVD disk?

         13                   MR. ATLAS:  Objection to the form.  But if

         14         he can answer, go ahead.

         15   A.    Well, that's a long process.

         16   BY MR. MERVIS:

         17   Q.    You know, I'm sorry.  I meant to say DVD movie.

         18         But, in any event, take me through the long process.

         19   A.    Okay.  Well, first you would have to translate the

         20         English back into C.  That's trivial.  Anyone who's

         21         had the most elementary knowledge of C programming

         22         would be able to do that.

         23                   Having done that, one would then go

         24         through the normal steps of compiling the C program,

         25         and then I believe that the C program would have to


          1         be linked with some library files.  So these are all

          2         things that any basic -- any elementary programmer

          3         could do.  Someone who's taken a single college

          4         course in computer programming should be able to do

          5         that.

          6                   Then one would have to acquire a DVD

          7         player and somehow connect it to a computer.  I

          8         think, pretty much, anybody can do that.  No special

          9         skill is required.  Then one would have to run the

         10         program, and pretty much anyone can do that.

         11   Q.    So if one were conversant in C computer programming

         12         language and had taken and been reasonably

         13         successful in an entry-level college computer

         14         science course and then had the necessary equipment,

         15         one could take your English language translation of

         16         the DeCSS source code and at the end wind up with an

         17         unencrypted copy of a DVD movie; is that correct?

         18   A.    I believe so.

         19                   MR. ATLAS:  I object as to form, but go

         20         ahead.  The answer is?

         21   A.    I believe that's correct.

         22                   MR. MERVIS:  Again, pending the receipt of

         23         the documents, I don't have any further questions.

         24                   MR. ATLAS:  Thank you very much.

         25                   Mr. Touretzky and Edna and everybody else


          1         on the line, thank you for helping make this come

          2         together.

          3                            - - - -

          4         (The proceedings were concluded at 2:40 p.m.)

          5                            - - - -























          2   COUNTY OF ALLEGHENY          )       SS:

          3         I, Edna Loudenslager, RPR, a Court Reporter and

          4   Notary Public in and for the Commonwealth of Pennsylvania,

          5   do hereby certify that the witness, DR. DAVID S.

          6   TOURETZKY, was by me first duly sworn to testify to the

          7   truth, the whole truth, and nothing but the truth; that

          8   the foregoing deposition was taken at the time and place

          9   stated herein; and that the said deposition was recorded

         10   stenographically by me and then reduced to printing under

         11   my direction, and constitutes a true record of the

         12   testimony given by said witness.

         13         I further certify that I am not a relative, employee

         14   or attorney of any of the parties, or a relative or

         15   employee of either counsel, and that I am in no way

         16   interested directly or indirectly in this action.

         17         IN WITNESS WHEREOF, I have hereunto set my hand and

         18   affixed my seal of office this 14th day of July,

         19   2000.




         23                          __________________________________

         24                                    Notary Public