9 June 2000. Thanks to Anonymous.
1
1
2
UNITED STATES DISTRICT COURT
3
SOUTHERN DISTRICT OF NEW YORK
4
5 UNIVERSAL CITY STUDIOS, INC., PARAMOUNT )
PICTURES CORPORATION, METRO-GOLDWYN-MAYER)
6 STUDIOS, INC., TRISTAR PICTURES, INC., )
COLUMBIA PICTURES INDUSTRIES, INC., )
7 TIME WARNER ENTERTAINMENT CO., L.P., )
DISNEY ENTERPRISES, INC., and TWENTIETH )
8 CENTURY FOX FILM CORPORATION, )
) Civ. No.
9 Plaintiffs, ) 0277 (LAK)
)
10 vs. )
)
11 ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" )
and 2600 ENTERPRISES, INC., )
12 )
Defendants. )
13 -----------------------------------------)
14 May 15, 2000
15 10:25 a.m.
16
17 DEPOSITION of ROBERT W. SCHUMANN,
18 held at the offices of Frankfurt Garbus
19 Klein & Selz, P.C., 488 Madison Avenue, New
20 York, New York, pursuant to Subpoena and
21 Notice, before ELIZABETH SANTAMARIA, a
22 Notary Public of the State of New York.
23
24 Reported by:
ELIZABETH SANTAMARIA
25 JOB NO. 05150SCH
INTERIM COURT REPORTING
2
1
2 A p p e a r a n c e s :
3
4 PROSKAUER ROSE LLP
5 Attorneys for Plaintiffs
6 1585 Broadway
7 New York, New York 10036-8299
8 BY: LEON P. GOLD, ESQ.
9 - and -
10 WILLIAM M. HART, ESQ. (a.m only)
11
12 FRANKFURT GARBUS KLEIN & SELZ, P.C.
13 Attorneys for Defendants
14 488 Madison Avenue
15 New York, New York 10022
16 BY: MARTIN GARBUS, ESQ.
17 - and -
18 EDWARD HERNSTADT, ESQ.
19
ALSO PRESENT:
20
Motion Picture Association
21 Mark D. Litvack, Esq.
In-house Counsel
22
--o0o--
23
24
25
INTERIM COURT REPORTING
3
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2 --o0o--
3
4 IT IS HEREBY STIPULATED AND AGREED by
5 and between the attorneys for the
6 respective parties herein that filing and
7 sealing be and the same are hereby waived.
8 IT IS FURTHER STIPULATED AND AGREED
9 that all objections, except as to the form
10 of the question, shall be reserved to the
11 time of the trial.
12 IT IS FURTHER STIPULATED AND AGREED
13 that the within deposition may be sworn to
14 and signed before any officer authorized to
15 administer an oath, with the same force and
16 effect as if signed and sworn to before the
17 Court.
18 --oOo--
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25
INTERIM COURT REPORTING
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1 Schumann
2 R O B E R T W. S C H U M A N N, called as a
3 witness, having been duly sworn by the
4 Notary Public, was examined and testified
5 as follows:
6 EXAMINATION BY
7 MR. GARBUS:
8 Q. CONFIDENTIAL
9 CONFIDENTIAL
10 A. CONFIDENTIAL
11 Q. CONFIDENTIAL
12 A. CONFIDENTIAL
13 CONFIDENTIAL
14 MR. GOLD: Mr. Garbus, I would
15 like to propose that we stipulate that
16 this deposition is taken pursuant to the
17 Federal Rules of Civil Procedure and
18 related Federal law. Is that okay with
19 you?
20 MR. GARBUS: Absolutely.
21 MR. GOLD: I also want to note
22 that the witness appears here today
23 pursuant to a Subpoena served on the MPAA
24 and a Notice of Deposition served on all
25 of the plaintiffs, that he is a
INTERIM COURT REPORTING
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1 Schumann
2 designated fact witness of the Motion
3 Picture Association of America and a
4 designated fact witness of all of the
5 plaintiffs, except for Time Warner.
6 With respect to Time Warner or
7 with respect to the Time Warner
8 plaintiff, the court has ruled that at
9 this stage you cannot take any
10 discovery of that organization. The
11 designated areas were set out in a
12 letter to you last week and they are
13 the following subjects:
14 A, DVD, CCS and DeCSS, Linux,
15 linking and hyperlinking, and the
16 existence of other DVD decryption
17 devices.
18 Those designations are the only
19 appropriate area of testimony today.
20 Mr. Hart points out that there
21 was another subject added by a
22 supplementary designation, and the
23 subject was injury to the plaintiffs.
24 MR. GARBUS: I respect that as
25 your position. You know where we
INTERIM COURT REPORTING
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1 Schumann
2 disagree.
3 MR. GOLD: No, but I don't think
4 it is relevant.
5 Q. Mr. Schumann, when did you first
6 learn about DeCSS?
7 A. Probably in, I don't know, September
8 or October of last year.
9 Q. Did you ever hear of something
10 called MORE?
11 A. Yes, I have.
12 Q. Have you read the affidavit of
13 Mr. Stevenson before you came here today?
14 A. Frank Stevenson?
15 Q. Yes.
16 A. Yes.
17 Q. Do you know who Mr. Stevenson is?
18 A. Only from my analysis in this
19 effort.
20 MR. GOLD: I'm sorry to interrupt.
21 I forgot to mention that the deposition
22 today is subject to the confidentiality
23 agreement we have all signed and I would
24 like to agree to reserve my
25 confidentiality stipulations until we get
INTERIM COURT REPORTING
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1 Schumann
2 a transcript.
3 MR. GARBUS: What do you mean by
4 that?
5 MR. GOLD: I will designate what
6 is confidential when I get the
7 transcript.
8 MR. GARBUS: I think if you have
9 an objection now as to anything that is
10 confidential, you should say.
11 MR. GOLD: Well, I don't know what
12 you are going to bring up. In that
13 event, since you don't want to agree to
14 that, then I will designate the whole
15 transcript as confidential. However,
16 when I get the transcript I will promptly
17 get to you an amendment, if an amendment
18 is called for.
19 MR. GARBUS: I disagree that this
20 deposition is confidential.
21 MR. GOLD: Do you intend to not
22 keep it confidential? Because we may
23 have to apply for an order.
24 MR. GARBUS: We will deal with it
25 at the appropriate time.
INTERIM COURT REPORTING
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2 MR. GOLD: Do you want to agree
3 that you will hold it confidential until
4 we make a specific designation when we
5 get the transcript?
6 MR. GARBUS: It may well be that I
7 am going to go through questions now that
8 have nothing to do with confidentiality.
9 MR. GOLD: It may be.
10 MR. GARBUS: If that is so, then
11 we don't get into any disagreement about
12 confidentiality.
13 MR. GOLD: That's not good enough,
14 because, among other things, I don't want
15 to wake up and see this transcript in the
16 newspaper tomorrow, and I have reasons to
17 believe that that is a possibility, but I
18 won't get into that thoroughly.
19 In light of this discussion, I
20 have designated the entire transcript
21 as confidential.
22 RL MR. GARBUS: Needless to say, I
23 object to it. Needless to say, we will get
24 a ruling on it.
25 BY MR. GARBUS:
INTERIM COURT REPORTING
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1 Schumann
2 Q. Going back now to Masters of Reverse
3 Engineering or MORE, when for the first time did
4 you hear that?
5 A. Would have been probably November of
6 1999.
7 Q. Did you also read the affidavit of
8 Chris DiBona in this case?
9 A. I believe I did, yes.
10 Q. Did you receive the affidavit of
11 Robin Gross in this case?
12 A. Yes, I did.
13 Q. You saw the statement in her
14 affidavit that Mr. Carl Geckner had said, as far as
15 he knew, as far as ten days ago, there was no
16 piracy resulting from DeCSS? Did you see that?
17 A. I saw that statement, yes.
18 Q. Do you know that to be true?
19 A. No, I don't.
20 Q. You don't know one way or the other?
21 A. That's correct.
22 Q. So as of today you don't know
23 whether or not there has been any piracy or not
24 with respect to DeCSS?
25 A. That's accurate.
INTERIM COURT REPORTING
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2 Q. Getting back to Mr. Stevenson, when
3 for the first time did you see his affidavit?
4 A. His affidavit?
5 Q. Yes.
6 A. The one, I don't know, dated a
7 couple of weeks ago, I guess?
8 Q. Yes.
9 A. I would have seen it probably in the
10 last five days.
11 Q. Did you sign an affidavit in this
12 case?
13 A. Yes, I did.
14 Q. Did you sign two affidavits in this
15 case?
16 A. I believe I did, yes.
17 Q. Did you review them before you came
18 in here this morning?
19 A. Yes.
20 Q. Is everything that you said in those
21 affidavits true?
22 A. To the best of my knowledge, yes.
23 Q. Is there anything that you want to
24 change now before we go into a discussion of those
25 affidavits?
INTERIM COURT REPORTING
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2 A. No.
3 Q. Are there any factors that you have
4 learned since you signed those affidavits which
5 make any of the allegations in the affidavits
6 untrue?
7 A. Not to my knowledge.
8 Q. Going back to MORE, you say you
9 first heard of them in November of 1999?
10 A. Would have been November or early
11 December.
12 Q. Can you tell me what you heard about
13 them?
14 A. Only what I saw -- what I saw about
15 them in the development as journals, for lack of a
16 better word, of the Linux Group and then obviously
17 they were in the -- I must have seen them in
18 various newspaper press articles.
19 Q. To your knowledge, was MORE or any
20 members of MORE involved in the decrypting of
21 DeCSS?
22 A. Can you define "decrypting"?
23 MR. GARBUS: Withdraw the
24 question.
25 BY MR. GARBUS:
INTERIM COURT REPORTING
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1 Schumann
2 Q. To your knowledge, was John Johansen
3 involved in any way with MORE?
4 A. I believe he stated he was.
5 Q. Can you tell me what your
6 recollection is of what he stated?
7 A. I believe he stated he was a member
8 of MORE in various forms.
9 Q. Do you know what MORE does or what
10 it claims to do?
11 A. All I know is their name stands for
12 Masters of Reverse Engineering and they claim to
13 have created DeCSS.
14 Q. Do you know that they claim to have
15 been working on developing an open source Linux DVD
16 player?
17 MR. GOLD: What is the question?
18 Read the question back, please.
19 A. I am not aware of any such claim.
20 Q. You don't know one way or another?
21 A. No. I said I was -- I am not aware
22 of any such claim.
23 Q. What is CSS-auth?
24 A. It is in reference to a particular
25 program?
INTERIM COURT REPORTING
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2 Q. Yes.
3 A. To my knowledge, it is a piece of
4 code for the Linux environment.
5 Q. Is it a program?
6 A. Yes, it is.
7 Q. Do you know who wrote it?
8 A. It was, I believe, written by Derek
9 Fawcus.
10 Q. Who is Derek Fawcus?
11 A. He was a member -- in my dealings
12 with that name, I don't know who he really is.
13 That's a name that was used. He was a member of
14 the DVD Development Group.
15 Q. Do you know what the Livid Group is?
16 A. Yes, I am aware of that name.
17 Q. What is the Livid Group?
18 A. It is a group of Linus developers
19 who are in the process of -- I assume they are
20 still doing it, developing a DVD player for Linux.
21 Q. When did they start to do that?
22 A. I don't know exactly when they
23 started.
24 Q. Approximately.
25 A. I guess early 1999, but I don't know
INTERIM COURT REPORTING
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2 the exact date.
3 Q. Do you know who are the members of
4 the Livid Group?
5 A. I knew some of them at the time I
6 reviewed materials, but I certainly don't claim to
7 know all the members.
8 Q. At the time you reviewed the
9 materials, can you tell me who some of the members
10 were?
11 A. I believe there was Derek Fawcus was
12 a member of that group, I believe Matt Pavlovich or
13 something like that, and there are a host of
14 others.
15 Q. Do you know anything about Derek
16 Fawcus's academic background?
17 A. No knowledge of that.
18 Q. How about Matt Pavlovich.
19 A. Only from, I believe, he gave a
20 deposition in this case. Not a deposition. I mean
21 an affidavit in this case, and he said he had been
22 to school -- been to college for four years.
23 Q. Did you ever have any dealings with
24 him?
25 A. No.
INTERIM COURT REPORTING
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2 Q. After you heard that the Livid Group
3 was developing a DVD program in early 1999, did you
4 hear anything further about it?
5 A. I did not know -- I did not know of
6 their existence in early 1999.
7 Q. When did you first learn of their
8 existence?
9 A. In November-December of 1999.
10 Q. Do you know what they have done
11 since with respect to the attempt to develop such a
12 program?
13 A. I have not followed the development
14 efforts.
15 Q. Do you know anything at all about
16 those developments from November to the present
17 day?
18 A. Only through what I have read in the
19 affidavits.
20 MR. GOLD: By the way, it being
21 Monday morning, I wasn't strong at
22 remembering everything I wanted to say
23 right away, but I gather that we have
24 agreed that objections to specific
25 questions are reserved.
INTERIM COURT REPORTING
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2 MR. GARBUS: Why wouldn't you make
3 your objections now?
4 MR. GOLD: I would rather reserve
5 them until the time of trial, which is
6 what everybody usually does.
7 MR. GARBUS: I think you reserve
8 objections as to substance, but not
9 objections as to form. I thought that
10 was the understanding. So that if there
11 is an objection as to form --
12 MR. GOLD: That will not be
13 reserved.
14 MR. GARBUS: Right.
15 MR. GOLD: Every other objection
16 will be reserved, if you agree to that.
17 MR. GARBUS: If you agree to that
18 for your examination of my people.
19 MR. GOLD: Sure.
20 MR. GARBUS: Good. Can I have the
21 last question, please.
22 (Record read.)
23 BY MR. GARBUS:
24 Q. Do you know anything about the
25 development of CSS-auth, when it was first done?
INTERIM COURT REPORTING
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1 Schumann
2 A. I don't fully understand your
3 question.
4 Q. CSS-auth we have agreed is a Linux
5 BSD program written by the Livid Group?
6 A. It is a Linux program written by
7 Derek Fawcus.
8 Q. Do you know when it was written?
9 A. I believe, if recollections are
10 correct, it was written in June or July of 1999.
11 Q. What is its function?
12 A. Its function is to unlock a DVD
13 drive.
14 Q. Have you ever tried to use CSS-auth?
15 A. No, I have not used CSS-auth.
16 Q. Do you know whether it performs the
17 function that you just stated it did?
18 A. Based on the reports, it appears --
19 MR. GOLD: I am going to object to
20 the form of that question. If you would
21 like to restate it.
22 MR. GARBUS: What was the
23 question?
24 (Record read.)
25 MR. GARBUS: You object to the
INTERIM COURT REPORTING
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2 form?
3 MR. GOLD: Yes.
4 BY MR. GARBUS:
5 Q. Does the CSS-auth perform the
6 authorization to the DVD drive enabling the results
7 of a hidden block of data?
8 A. I'm sorry. The end of that question
9 was enabling --
10 Q. The reading of a hidden block of
11 data.
12 MR. GOLD: Maybe we can read the
13 whole question back, please.
14 (Record read.)
15 Q. Enabling the reading of a hidden
16 block of data.
17 A. I believe it might.
18 Q. What is CSS-cat?
19 A. I don't exactly know what that is.
20 Q. When you say you don't exactly know,
21 do you have any idea what it is?
22 A. I can only presume from its name.
23 Q. What is your presumption?
24 A. It is a --
25 MR. GOLD: I am going to object to
INTERIM COURT REPORTING
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2 the form.
3 Q. Go ahead. What is your
4 understanding of CSS-cat based on its name?
5 A. It is a mechanism for reading files.
6 Q. Do you know who developed CSS-cat?
7 A. I do not.
8 Q. Do you know whether or not it is a
9 Linux BSD program?
10 A. Can you describe Linux BSD?
11 Q. You previously said that CSS-auth
12 was a Linux BSD program.
13 A. I belief I said CSS-auth was a Linux
14 program.
15 Q. Is CSS-cat a Linux program?
16 A. I believe it is.
17 Q. Do you know who developed it?
18 A. I do not.
19 Q. Was it developed by the Livid Group?
20 A. It may have been. I have no
21 detailed knowledge.
22 Q. Was it developed by Mr. Fawcus?
23 A. I do not know.
24 Q. Can you tell me something about your
25 educational background?
INTERIM COURT REPORTING
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2 A. Sure.
3 Q. Go ahead. Where did you go to
4 college?
5 A. Rochester Institute of Technology.
6 Q. When did you finish?
7 A. 1985.
8 Q. What degree did you get?
9 A. Bachelor's.
10 Q. Did you get any subsequent
11 education?
12 A. I did not. No degree.
13 Q. Do you know what Linux is?
14 A. I assume so, yes.
15 Q. You assume you know?
16 A. As much as anybody knows what Linux
17 is.
18 Q. Tell me what you understand Linux to
19 be.
20 A. Linux is a variation of the UNIX
21 operating system.
22 Q. Have you ever operated Linux?
23 A. Yes, I have.
24 Q. Do you know what the term "open
25 source" means?
INTERIM COURT REPORTING
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2 A. Yes, I do.
3 Q. What does it mean?
4 A. It references a development style
5 where the source code is openly made available to
6 all developers.
7 Q. How did you learn about CSS-auth?
8 A. In my review of the development logs
9 from the Linux Development Group.
10 Q. When was that?
11 A. Would have been November or December
12 of 1999.
13 Q. Did you do any investigation as to
14 the amount of use of CSS-auth?
15 A. In what sense?
16 Q. Were people using it, to your
17 knowledge, in an attempt to replay DVDs?
18 A. Yes.
19 Q. Tell me how you came to that
20 knowledge. Merely from reading the Linux postings
21 or through some other source of information?
22 A. Through the Linux postings.
23 Q. Did you ever speak to anyone who had
24 done it?
25 A. No.
INTERIM COURT REPORTING
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2 Q. Today, so far as your own knowledge
3 goes, other than what you read on the Linux
4 postings, do you know if anyone had you ever used
5 Linux CSS-auth to go into DVDs or play DVDs?
6 A. No.
7 Q. With respect to your affidavit,
8 after you first learned of DeCSS, what did you then
9 do?
10 MR. GOLD: I object to the form of
11 the question.
12 Q. Did you try and see whether DeCSS
13 could decrypt the DVD?
14 A. Yes, I did.
15 Q. When did you do that?
16 A. It would have been the same,
17 November-December time frame.
18 Q. Tell me exactly what you did, when
19 you did it, and where you did it.
20 A. I would have done it in my office
21 and I'm sure I downloaded DeCSS from a site. I
22 don't know exactly which one offhand. And then I
23 ran it against a -- on a Windows machine against
24 the DVD drive.
25 Q. What happened?
INTERIM COURT REPORTING
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2 A. It showed me a very nice screen that
3 asks me what files, what I wanted to copy from the
4 DVD, and whether I wanted to merge the files
5 together, and where on my computer or the network
6 attached to my computer I wanted to write the
7 resultant file.
8 Q. Did you do that?
9 A. I did that, yes.
10 Q. How long did that take?
11 A. Not terribly long.
12 Q. Can you tell me what day this was?
13 A. I don't recall the exact date.
14 Q. When you say it's in your office,
15 where is your office?
16 A. In Herndon, Virginia.
17 Q. Are there any records that indicate
18 what you did on that date with respect to the
19 DeCSS?
20 A. I doubt I would have written a
21 detailed log, to that level of detail.
22 Q. I presume there is information on
23 your computer that would indicate what you did and
24 when you did it with respect to DeCSS; is that
25 right?
INTERIM COURT REPORTING
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2 A. If there is still a copy of DeCSS on
3 my computer, it might show the data I downloaded.
4 Q. Do you know if there is a copy of
5 DeCSS on your computer?
6 A. There quite possibly is.
7 Q. Isn't DeCSS designed to send the
8 material to a permanent computer file or a
9 computer's hard drive?
10 A. That is the function that it
11 performs, yes.
12 Q. So wouldn't you have that hard
13 drive?
14 A. Certainly.
15 Q. Where would that hard drive be?
16 A. It would be in a computer in my
17 office.
18 MR. GARBUS: Will you produce
19 that?
20 MR. GOLD: The entire computer in
21 his office?
22 MR. GARBUS: The hard drive.
23 MR. GOLD: You want the whole hard
24 drive?
25 MR. GARBUS: Yes.
INTERIM COURT REPORTING
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2 MR. GOLD: I object to that as
3 irrelevant.
4 BY MR. GARBUS:
5 Q. After you stored it on the hard
6 drive, then what did you do?
7 A. Then I presume I -- it may have been
8 zipped or compressed, so it downloaded faster. I
9 would presume it would have decompressed and I
10 would have executed the program. What I did with
11 the movie after --
12 Q. When you say it was zipped or
13 compressed, tell me the kind of computer you were
14 using to download the --
15 A. It was a Windows machine. I think
16 it was a Windows NT machine.
17 Q. You say it was zipped or compressed.
18 Can you tell me what that means?
19 A. It means that the executable file
20 was compressed, which is standard technique used in
21 the industry.
22 Q. Was this done on your machine also?
23 A. The compression?
24 Q. Yes.
25 A. No.
INTERIM COURT REPORTING
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2 Q. Where was that done?
3 A. I don't know where it was done.
4 Q. Well, tell me how you had it
5 compressed.
6 A. I didn't compress it. I received
7 it -- I would have received it, I believe,
8 compressed. I don't remember the details. It's a
9 standard technique, however.
10 Q. And then after you received it
11 compressed, what was then done?
12 A. I would have decompressed it or
13 perhaps it decompressed itself. I don't remember
14 the details. And then it installed itself.
15 Q. Did there come a time when you used
16 DeCSS?
17 A. I used DeCSS to test the -- to test
18 that it decrypted, yes.
19 Q. And you found that it did?
20 A. It appeared to have, yes.
21 Q. Did you then try and decrypt the
22 DVD?
23 A. That's what I would have done with
24 DeCSS.
25 Q. Did you ever try and see the movie,
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2 a particular DVD movie using DeCSS?
3 A. I did not, no.
4 Q. To your knowledge, has anyone ever
5 done that?
6 A. Yes.
7 Q. Who?
8 A. I believe some of the defendant
9 affidavits referenced that.
10 Q. To your knowledge, has other than
11 the defendants affidavits, prior to your seeing
12 those affidavits, did you know of one instance
13 where somebody used DeCSS to watch a DVD movie?
14 MR. GOLD: If your knowledge
15 resulted from any conversation with an
16 attorney or any conversation with the
17 plaintiffs after this suit was commenced,
18 I wouldn't answer the question.
19 Otherwise, I would answer.
20 MR. GARBUS: Go ahead.
21 A. Based on that, I think I will need
22 to refuse --
23 MR. GOLD: In response to that
24 question, I am objecting on the
25 attorney-client privilege and the work
INTERIM COURT REPORTING
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2 product privilege.
3 Q. Prior to January 14th, which is when
4 the suit started, had you ever heard of anyone
5 watching a DVD movie, having had access to the DVD
6 movie through DeCSS?
7 A. Yes.
8 Q. Who was that?
9 A. I don't remember the exact names,
10 but there are a variety of descriptions in the
11 Linux development logs of people who had using
12 DeCSS then proceeded to watch the movie.
13 Q. Other than the Linux logs, have you
14 ever heard of anyone using DeCSS to observe or
15 watch a DVD?
16 A. Prior to January 14th, no.
17 Q. You annexed some of those logs, did
18 you not, to your affidavit in this case?
19 A. I believe, yes, that's true.
20 Q. Now, you took those documents that
21 you annexed from your affidavit to your affidavit,
22 I presume, out of lengthier logs that you had.
23 In other words, you selected which
24 documents reflected the use of DeCSS to watch DVDs;
25 is that right?
INTERIM COURT REPORTING
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2 MR. GOLD: Do you understand the
3 question?
4 THE WITNESS: I understand part of
5 the question.
6 MR. GOLD: Let's have the question
7 read back.
8 Actually, I am going to object
9 to the form of this. Do you want to
10 restate it?
11 MR. GARBUS: Mr. Gold, will you
12 produce those logs?
13 MR. GOLD: Which logs?
14 RQ MR. GARBUS: The logs that your
15 witness just referred to. Namely, he
16 referred in his Exhibit, Exhibit B of his
17 affidavit, to photostatic copies of
18 documents entitled "Linux DVD Re: Linux DVD
19 posting."
20 As I understand it, he had logs
21 of the Linux DVD postings. I am asking
22 him to produce those logs.
23 MR. GOLD: I object to the form of
24 the question and I don't -- I think you
25 are misrepresenting the witness'
INTERIM COURT REPORTING
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2 testimony also.
3 By misrepresenting it, I just
4 mean that your question doesn't conform
5 to the prior testimony. I'm not yet
6 suggesting a willful act.
7 MR. GARBUS: Please mark this as
8 Defendants' 1.
9 (Defendants' Exhibit 1, Mr. Robert
10 W. Schumann's Declaration, dated January
11 19, 2000, marked for identification, as of
12 this date.)
13 BY MR. GARBUS:
14 Q. Mr. Schumann, I hand you what has
15 been marked as Defendants' Exhibit 1, your
16 affidavit dated January 19, 2000, along with a copy
17 of the exhibits that were submitted with the
18 affidavit, and I direct your attention to Exhibit B
19 of the affidavit, which is referred to at Paragraph
20 11 of your affidavit.
21 I ask you, when did you first see
22 these documents?
23 A. These documents?
24 Q. Yes.
25 A. I would have first seen them in
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2 October or November.
3 Q. At 11 of your affidavit on Page 4
4 you say, "I attached as Exhibits B and C true
5 copies of pertinent pages from relevant internet
6 groups."
7 How did you decide which pages were
8 pertinent and which pages were not pertinent? What
9 were you looking for?
10 A. I was looking for pages that were
11 pertinent to the text of my affidavit.
12 Q. In other words, you were looking for
13 pages that indicated that there was some usage by
14 people who posted on that particular website of
15 DeCSS to get into a DVD?
16 A. I don't believe that that was the
17 particular purpose of those selections.
18 Q. What was the purpose of those
19 selections?
20 A. To define and illustrate the text of
21 the affidavit.
22 Q. You say, "that were downloaded from
23 the internet and examined by me and certain of my
24 colleagues under my supervision."
25 Who were those other colleagues?
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2 A. Would have been Richard Whittemore.
3 Q. Do you have training in
4 cryptography?
5 A. Not in cryptography per se, no.
6 Q. Did you ever take any courses in
7 cryptography?
8 A. Not particular to cryptography, no.
9 Q. Have you ever taught at any
10 university?
11 A. I have not.
12 Q. Have you ever written any articles
13 that have been published in academic journals?
14 A. I have not.
15 Q. Have you written any articles that
16 have been published anywhere?
17 A. I have not.
18 Q. Have you ever been invited to speak
19 at any university on any matter?
20 A. I have not.
21 Q. Have you ever heard of the name
22 Mr. Stevenson before you first read his affidavit?
23 A. Frank Stevenson?
24 Q. Yes.
25 A. Yes, I had.
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2 Q. In what context?
3 A. My review of looking through the
4 Linux development logs.
5 Q. Tell me what you saw there.
6 A. He published a paper that reviewed
7 CSS.
8 Q. Did you take down a copy of that
9 when you did your exercise in downloading relevant
10 documents from Linux DVD?
11 A. Did I download his paper?
12 Q. Yes.
13 A. Yes, I downloaded his paper.
14 Q. What else did you download from that
15 that you did not include in that affidavit?
16 A. I downloaded a -- I didn't download.
17 There is a large amount of Linux DVD development, I
18 guess, history that you looked through.
19 Q. You chose not to put that into your
20 affidavit?
21 A. It is three inches of paper.
22 RQ MR. GARBUS: I ask that that be
23 produced.
24 MR. GOLD: I will take it under
25 advisement.
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2 Q. Can you remember what other
3 documents you downloaded? You saw Mr. Stevenson's
4 information. Did you see any information from
5 Mr. Pavlovich?
6 A. Yes. He was a frequent contributor.
7 Q. Do you know anything about his
8 background?
9 A. Only what I referenced earlier.
10 Q. Had you heard of him prior to your
11 looking at these Linux postings?
12 A. No.
13 Q. Do you know Chris DiBona?
14 A. No.
15 Q. Had you ever heard of him prior to
16 your involvement in this case?
17 A. No.
18 Q. As Exhibit C to your affidavit, you
19 have some documents which are entitled "Livid-DEV."
20 You have distinguished that from Exhibit B. Can
21 you tell me what the difference is?
22 MR. GOLD: I don't know what you
23 mean by distinguished. You mean that
24 this is not in Exhibit B? Is that what
25 you mean.
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2 MR. GARBUS: Yes. He made a
3 distinction between Exhibit B and Exhibit
4 C.
5 Q. What is the distinction? Why are
6 documents put behind a certain set of exhibits and
7 the other documents put behind a different set of
8 exhibits? What is the distinction? If you
9 understand it.
10 MR. GOLD: I object to the form of
11 the question, but I believe that what
12 Marty is asking is: Do you know why the
13 pieces of paper in Exhibit C weren't put
14 in Exhibit B? I think that's his
15 question.
16 Is that right?
17 MR. GARBUS: Yes.
18 Q. Do they come from a different source
19 or do they come from the same source?
20 A. Well, in reviewing them and not -- I
21 would have to look in detail. I mean I don't
22 recall a specific reason that I broke them up as I
23 did, but they appear -- the primary parts of B
24 appear to come from a group called Linux DVD and
25 the bulk of what is in C appears to come from a
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2 different development group. Namely, Livid-DEV.
3 Q. With respect to Livid-DEV, did you
4 also download other documents than these two pages
5 that you have annexed hereto as Exhibit B?
6 MR. GOLD: You mean that same day
7 did he download any other --
8 MR. GARBUS: That same day or any
9 other day.
10 MR. GOLD: Relating to what?
11 MR. GARBUS: Relating to his
12 investigation into how DeCSS was being
13 used.
14 A. I did not download any other
15 information from Linux-DVD.
16 Q. Only those --
17 A. But I reviewed many other pages of
18 the Livid-DEV development --
19 Q. How many pages?
20 A. -- groups.
21 Q. How many pages, to the best of your
22 recollection?
23 A. I'm sorry. My earlier answer, the 2
24 to 3 inches of paper includes both.
25 Q. In other words, everything that you
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2 reviewed you printed out?
3 A. That's correct. I reviewed a
4 printout.
5 Q. So that you did not see anything
6 other than what was in that 3 and a half inches of
7 papers relating to either the Livid Development
8 Group or the Linux DVD group?
9 MR. GOLD: I object to the form.
10 A. I may have looked occasionally at
11 some references, but nothing of major significance.
12 Q. We are saying this was done at
13 sometime in November or December in your office in
14 Virginia?
15 A. Late November, early December, yes.
16 Q. Since then, have you looked at
17 either of these sites?
18 MR. GOLD: I object to the
19 question on the grounds of
20 attorney-client privilege and work
21 product privilege.
22 A. (No response.)
23 Q. From the time you first saw it until
24 January 14th, the date this lawsuit was instituted,
25 did you look at either of those sites again?
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2 A. Not to my recollection.
3 RL Q. To your recollection, have you
4 looked at those sites since January 14th?
5 DI MR. GOLD: Same objection I made
6 before.
7 A. (No response.)
8 MR. GARBUS: So it is your
9 position that all the questions I would
10 have after January 14th of this witness
11 are subject to the attorney-client
12 privilege?
13 MR. GOLD: I don't know. I don't
14 think I could answer that question now.
15 I don't know what you are going to ask.
16 BY MR. GARBUS:
17 Q. After you downloaded all this
18 information in November or December of 1999, the
19 Linux postings, what did you do with it?
20 MR. GOLD: I am going to object to
21 that, but maybe first you want to break
22 that up as to time.
23 MR. GARBUS: He is saying November
24 or December.
25 MR. GOLD: Oh, in November and
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2 December?
3 MR. GARBUS: Yes.
4 MR. GOLD: Read me the last
5 question back, please.
6 (Record read.)
7 MR. GOLD: That means what did you
8 do with it in November or December. I
9 think that's what he is saying. In those
10 two months.
11 A. After I -- or as I reviewed the
12 downloaded materials, after I finished reviewing
13 them, I did nothing with the downloaded materials.
14 Q. Did you download the materials the
15 same day that you downloaded the DeCSS?
16 A. No.
17 Q. What was the difference in time, if
18 you remember, between the time you downloaded the
19 DeCSS and you downloaded the materials?
20 A. It was infinite.
21 Q. Did you do it the same day?
22 A. No.
23 Q. Which did you do first, to the best
24 of your recollection?
25 A. I'm sorry. I did not download the
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2 materials I reviewed that is attached here. I did
3 not do the downloading. I reviewed downloaded
4 materials, which is what I said in my affidavits,
5 but I did not, myself, download these materials.
6 Q. Your colleagues did?
7 A. They did not.
8 Q. Who did?
9 A. My client did.
10 Q. Which client?
11 A. That would have been MPAA.
12 RL Q. The client asked you to download the
13 materials when?
14 DI MR. GOLD: I am going to object to
15 the question as work product and
16 attorney-client privilege.
17 RL Q. Did you review the materials that
18 the MPAA asked you to review after or before you
19 first learned of the existence of DeCSS?
20 MR. GOLD: Same objection. If you
21 want to limit it to before the lawsuit, I
22 guess you can.
23 MR. GARBUS: He is talking
24 about --
25 MR. GOLD: Your question wasn't
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2 related to before the lawsuit.
3 Q. Did you at any time prior to the
4 lawsuit review the documents that are referred to
5 in Exhibits B and C?
6 A. Yes.
7 Q. When did you review those?
8 A. Late November, early December.
9 Q. Do you remember whether or not you
10 reviewed those documents before or after you first
11 learned of the existence of DeCSS?
12 A. Probably prior.
13 Q. When you say your client MPAA, how
14 long have they been your client?
15 A. I was hired by them to perform this
16 review.
17 Q. When was that?
18 A. Late November.
19 Q. Prior to that, had you ever been
20 involved with the MPAA?
21 A. Not directly, no.
22 Q. Are you now a consultant for them on
23 this particular job?
24 A. I was a consultant for them on --
25 for that review.
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2 Q. Are you doing any other work for
3 them?
4 A. Not at this time.
5 Q. Directing your attention to
6 Paragraph 2, the first sentence of your affidavit,
7 it says, and you can read the sentence, "The DeCSS
8 utility serves one function only. To decrypt CSS
9 protected cipher text, including that embodied in
10 the DVD disk containing plaintiffs' motion pictures
11 and to copy and store the resulting unencrypted
12 audio-visual data in one or more computer files."
13 Is that an accurate statement?
14 A. To the best of my knowledge, yes.
15 Q. Does the DeCSS serve any other
16 function?
17 A. The DeCSS utility?
18 Q. Yes.
19 A. No.
20 Q. Can you, through the DeCSS utility
21 ultimately play the DVD or is its only function to
22 copy and store?
23 A. Its only function is to copy and
24 store.
25 Q. Have you had any conversations with
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2 Mr. Valenti?
3 A. I have not. I presume you mean
4 Mr. Valenti of the MPAA.
5 Q. Yes.
6 A. No, I have not.
7 Q. Have you ever been retained by
8 Columbia Pictures, Disney Enterprises,
9 Metro-Goldwyn-Mayer, or Universal City Studios to
10 do any work on their behalf?
11 A. No.
12 Q. Do you know any of the employees of
13 those companies?
14 A. I do.
15 Q. Do you know, have any of the
16 employees of those companies ever told you that
17 they have ever watched a DVD that has been
18 decrypted with DeCSS?
19 A. Have they ever watched a DVD that
20 has been decrypted with DeCSS?
21 Q. Yes.
22 A. No.
23 Q. When you say you have spoken to
24 people at those companies, who is it that you have
25 spoken to at each of the companies? For example,
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2 Universal.
3 MR. GOLD: If it was after January
4 of 00, don't answer. If it was before,
5 don't answer.
6 A. I assume my business -- confidential
7 information is covered under the confidentiality
8 clause, the earlier confidentiality issue.
9 Q. You have a lawyer there.
10 MR. GOLD: We are going to take
11 two minutes.
12 MR. GARBUS: Is there an open
13 question.
14 MR. GOLD: Please read back the
15 question.
16 (Record read.)
17 MR. GOLD: Off the record.
18 (Discussion off the record.)
19 MR. GARBUS: Merely the name of
20 the person.
21 MR. GOLD: The name of the person
22 and what they talked about would have to
23 be kept confidential.
24 MR. GARBUS: Let's start first off
25 with the name of the person.
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2 MR. GOLD: I'm saying that the
3 name of the person would have to be kept
4 confidential, as well as the subject
5 matter.
6 MR. GARBUS: We would have to get
7 a ruling. All I am asking now, if you
8 are saying the names of any of the people
9 that he spoke to prior to January 14th
10 are to be kept confidential, then we
11 should get a ruling on it so that --
12 MR. GOLD: Let me take it another
13 way. Would you restate your question to
14 cover the issues related to this lawsuit?
15 MR. GARBUS: Surely.
16 MR. GOLD: If you do that, then he
17 can answer.
18 BY MR. GARBUS:
19 Q. Can you tell me who prior to
20 January 14th you spoke to at Universal relating to
21 the issues relevant to this lawsuit?
22 A. No one.
23 Q. You can't tell me? You don't
24 remember?
25 A. I mean --
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2 MR. GOLD: He said no one. You
3 asked him who has he spoke to about the
4 issues in this lawsuit. He said nobody.
5 Nobody at that studio.
6 Q. Would your answer be the same with
7 respect to the other studios?
8 MR. GOLD: Except for Time Warner.
9 Q. Namely, that everything I asked you,
10 except for Time Warner, for our deposition, take
11 Time Warner out of it as if they were not here.
12 Don't tell me anything about Time Warner or anybody
13 you ever spoke to there.
14 A. To any material degree, nobody.
15 Q. To your knowledge, prior to
16 January 14th, did you know whether or not each of
17 these studios maintained information on whether or
18 not DeCSS was used to watch any DVDs that they had
19 manufactured, distributed, or been in any way
20 involved in?
21 A. Do I have any knowledge of that?
22 Q. Yes.
23 A. I have no knowledge either way.
24 Q. Do you have any knowledge of the
25 record keeping at any of the plaintiffs? Do you
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2 know what I mean by "the plaintiffs"?
3 A. Yes.
4 Q. Everybody except for Time Warner,
5 relating to DeCSS or its application.
6 A. I have no knowledge.
7 Q. Do you know whether after
8 January 14th, do you have any knowledge whether or
9 not any of the plaintiffs, other than Time Warner,
10 maintain any records concerning the use of DeCSS?
11 A. I have no knowledge.
12 Q. Do you have any knowledge of who the
13 person is, if anyone, at each of the plaintiffs,
14 other than Time Warner, who is in charge of
15 securing information about the use of DeCSS?
16 A. I have no knowledge.
17 Q. Do you have any knowledge since
18 January 14th whether any of the plaintiffs, other
19 than Time Warner, maintain any records on DeCSS?
20 A. I have no knowledge.
21 Q. Have you ever been told by anybody
22 from the MPAA that since January 14th any one of
23 them has seen a movie, a DVD that has been
24 decrypted --
25 MR. GOLD: Objection.
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2 Q. -- by DeCSS?
3 MR. GOLD: Objection as to work
4 product and attorney-client privilege.
5 Q. By the way, are you a lawyer,
6 Mr. Schumann?
7 A. I am not.
8 Q. Who have you had conversations with
9 at the MPAA since November or December of 1999?
10 MR. GOLD: Do you have a cut-off
11 date on that question?
12 MR. GARBUS: Let's use
13 January 14th as the cut-off date.
14 A. Mark Litvack.
15 Q. That's the attorney sitting in this
16 room today?
17 A. Yes.
18 Q. Is he the sole person you spoke to
19 at the MPAA from November or December until
20 January 14th?
21 A. I was on a phone call with one other
22 gentleman, a conference call, and Mark, but I don't
23 recall the name of that other gentleman.
24 Q. Was the other gentleman a lawyer?
25 A. He may have been, but I don't know.
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2 Q. Was he an MPAA employee?
3 A. To my knowledge, yes.
4 Q. Since January 14th, have you made
5 any investigation on your own to determine whether
6 or not DeCSS was being used to decrypt DVDs?
7 MR. GOLD: Just answer "yes" or
8 "no."
9 A. No.
10 Q. Pardon me?
11 A. On my own?
12 Q. Yes.
13 A. No.
14 Q. Has your company?
15 A. No.
16 Q. Do you know if any other company
17 has?
18 MR. GOLD: I think he means did
19 you obtain knowledge prior to
20 January 14th that any company did.
21 A. What is the current question?
22 MR. GARBUS: Read it back.
23 (Record read.)
24 Q. -- been retained by the MPAA to
25 determine if DeCSS is being used to allow people to
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2 see DVDs?
3 A. I have no knowledge.
4 Q. Have you ever seen any reports from
5 any other company indicating that the MPAA has
6 retained any company or individuals to determine if
7 DeCSS is being used to watch DVDs?
8 A. I have not seen any reports.
9 MR. GOLD: Before you ask another
10 question, I have to take a short break.
11 (Recess taken.)
12 BY MR. GARBUS:
13 Q. Are you presently employed by the
14 MPAA on this project?
15 A. No.
16 Q. When did your employment with the
17 MPAA end?
18 A. The end of the project would have
19 been in December.
20 Q. So you have not been employed by the
21 MPAA this year at all?
22 A. Cinea, my company, all the contracts
23 were with my company. Not with me personally.
24 Q. Have you ever been employed by any
25 of the plaintiffs in this lawsuit, at any time?
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2 A. I have not.
3 Q. The conversations that you had --
4 MR. GOLD: Before you ask a
5 question, off the record.
6 (Discussion off the record.)
7 Q. The conversations that you had, did
8 they indicate that you would be paid for your
9 testimony here today?
10 MR. GOLD: Conversations he had
11 with who?
12 MR. GARBUS: With anybody at the
13 MPAA.
14 A. Not with anyone at the MPAA, no.
15 Q. With who?
16 MR. GOLD: Objection to the form
17 of the question.
18 Q. Did anybody tell you you were going
19 to be paid for coming here to testify today?
20 A. Yes.
21 Q. Is that the Proskauer law firm?
22 A. Yes.
23 Q. Were you paid also for preparing the
24 affidavits or taking the time to do the affidavits?
25 A. I was reimbursed for my time, yes.
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2 Q. You said you reviewed the documents
3 which are Exhibits B and C, amongst others, and you
4 were asked to review those by the MPAA; is that
5 correct?
6 A. That's correct.
7 Q. Did you then furnish them with a
8 report?
9 A. I did.
10 Q. When did you furnish them with that
11 report?
12 A. It would have been, I guess,
13 mid-December.
14 Q. How many pages is that report?
15 A. I don't remember the exact amount.
16 Fifty to one hundred pages.
17 RQ MR. GARBUS: May I have a copy of
18 that report, Mr. Gold?
19 MR. GOLD: I will take that under
20 advisement. I think that is work product
21 privilege.
22 Q. Have you ever been retained by
23 Proskauer, the law firm?
24 A. Can you --
25 Q. Is there a letter of agreement or
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2 any understanding between you and Proskauer that
3 you are going to do any work for Proskauer?
4 MR. GOLD: You are asking if there
5 is a letter or oral agreement?
6 MR. GARBUS: Yes.
7 Q. Related to?
8 A. Related to this case?
9 Q. Yes.
10 A. Yes.
11 Q. Is it an oral agreement or a written
12 retainer?
13 A. There is an oral agreement.
14 Q. When were you retained by Proskauer?
15 A. I don't remember if it was late
16 December or early January. I think it was early
17 January.
18 Q. Were you retained by Proskauer after
19 your relationship with the MPAA ended?
20 A. I was.
21 Q. Were you retained by Proskauer to
22 specifically help them out on this project?
23 Namely --
24 A. I was, yes.
25 Q. Have you ever done any other work
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2 for Proskauer?
3 A. Yes, I have.
4 Q. When was that?
5 A. The last three weeks, I guess.
6 Q. On a different matter?
7 A. On a different matter, that's
8 correct.
9 Q. The DVD/CCA matter or something
10 entirely different?
11 A. Something entirely different.
12 Q. With respect to the MPAA, after
13 January 14th, did you have any conversations with
14 them concerning this matter?
15 MR. GOLD: Yes or no?
16 A. Any material conversations?
17 Q. Any conversations, after
18 January 14th.
19 A. Yes.
20 Q. With whom?
21 A. Would have been with Mark Litvack.
22 Q. Did you also have conversations with
23 the MPAA after January 14th with respect to helping
24 them or being retained by them in another matter?
25 A. No.
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2 Q. Have you ever previously testified
3 for either the MPAA or Proskauer?
4 A. I have not.
5 Q. Have you ever been deposed before?
6 A. I have not.
7 Q. The report that you originally
8 furnished to the MPAA, did a copy of that go to
9 Proskauer?
10 A. I have no knowledge.
11 Q. You just sent it on to the MPAA?
12 A. That's correct.
13 Q. Who did you send it on to?
14 A. Mark Litvack.
15 Q. Is there any other correspondence
16 exchanged between you and the MPAA prior to the
17 time that they ended their employment of you? By
18 "you," of course, I am referring to you and your
19 company.
20 MR. GOLD: I am going to object to
21 that. It misstates the witness' prior
22 testimony.
23 MR. GARBUS: Can I have the
24 question read again.
25 (Record read.)
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2 BY MR. GARBUS:
3 Q. Did you ever exchange any
4 correspondence, other than this report, with the
5 MPAA during the course of your employment with
6 them?
7 A. Yes.
8 Q. Did they send letters back to you?
9 A. Not that I recall. They did send a
10 check, though.
11 Q. Do you have copies of any of the
12 letters you sent to them today with you?
13 A. Not with me, no.
14 Q. How much such letters were there?
15 A. I believe there was only one.
16 Q. Was that the letter just enclosing
17 the report?
18 A. And a separate one that enclosed the
19 invoice.
20 Q. In addition to physical letters, is
21 there any e-mail correspondence between you and the
22 MPAA, in November, December, and January?
23 A. No.
24 MR. GARBUS: For the purposes of
25 this deposition, any time I say
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2 "letters," it will include e-mails, as
3 well.
4 MR. GOLD: It would probably be
5 better if you use all the words. It's
6 not that hard.
7 Q. Did you send to the MPAA any of the
8 logs that you had concerning DeCSS?
9 MR. GOLD: Yes or no?
10 A. Did I send to the MPAA any of the
11 logs?
12 Q. Yes.
13 A. No.
14 Q. Did you download any materials in
15 addition to that which was sent to you by the MPAA
16 from either of these websites prior to
17 January 14th?
18 A. How do you describe "download"?
19 Q. Take it off the machine and print
20 it.
21 A. I may have.
22 Q. Would that be back in your office?
23 A. It's possible, but I probably would
24 have thrown it away at the time.
25 Q. Do you have a file in your office on
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2 this matter concerning the terms of your employment
3 with the MPAA?
4 MR. GOLD: Which is this matter?
5 You mean the one in 1999 or -- is that
6 the one you are talking about?
7 MR. GARBUS: No.
8 Q. November and December you were
9 employed with the MPAA. Do you have a file of that
10 in your office?
11 A. I have a file of that matter. Not
12 relating to the agreement.
13 RL Q. What else is there in the file,
14 other than the documents you have previously
15 mentioned?
16 DI MR. GOLD: I am going to object to
17 that. Attorney-client privilege.
18 MR. GARBUS: We are talking about
19 now when he was working for the MPAA,
20 November and December.
21 MR. GOLD: Of 1999.
22 MR. GARBUS: Yes.
23 Q. You have a separate file maintained
24 in your office after you were retained by
25 Proskauer?
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2 A. I do have a separate file for that,
3 yes.
4 MR. GARBUS: It occurs to me,
5 Mr. Gold, that you just might have an
6 objection if I ask for that file.
7 MR. GOLD: I think I would.
8 Although you might have been so amazingly
9 clever I wouldn't have recognized it. I
10 gave him a compliment and I think it
11 deserves to be on the record.
12 BY MR. GARBUS:
13 Q. How many people work with Cinea?
14 A. There are currently two.
15 Q. It is you and?
16 A. A gentleman, David Degrooth, an
17 employee of mine.
18 Q. What is his background?
19 A. He is an engineer.
20 Q. How long has that company been in
21 existence?
22 A. Since June of 1999.
23 Q. You mentioned before that you had a
24 colleague involved with you when you reviewed the
25 downloaded material. Do you recall?
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2 A. Yes.
3 Q. Did that colleague then work for the
4 company?
5 A. Yes. He is one of my partners.
6 Q. Is he still a partner in the
7 company?
8 A. He is still a minority partner, yes.
9 Q. Does he still work with the company?
10 A. No.
11 Q. Did he then work for the company?
12 A. Yes.
13 Q. What is his background?
14 A. He is an IT professional.
15 Q. What does that mean?
16 A. He has a software background.
17 Q. Are any of the three of you
18 cryptographers?
19 A. No, we are not.
20 Q. Do any of the three of you have a
21 degree in cryptography?
22 A. We do not.
23 Q. What is your minority partner's
24 education?
25 A. I believe he has a master's in
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2 business administration.
3 Q. And his bachelor's is in?
4 A. I think it is in computer science,
5 but I don't know.
6 Q. Prior to the time that you sent the
7 report to the MPAA, did you do a draft of the
8 report?
9 A. I'm sure I would have done an
10 internal draft.
11 Q. Do you have copies of that internal
12 draft?
13 A. I doubt it. I typically remove
14 earlier drafts.
15 Q. Wouldn't it be on your computer?
16 A. It might be, but I tend to clean up,
17 sometimes.
18 Q. With respect to the report that the
19 MPAA got from you, had they seen a draft of the
20 report prior to the time you gave them the final
21 report?
22 A. No.
23 Q. Had you had any discussions with
24 anyone at the MPAA, including Mr. Litvack, about
25 the nature of the report prior to the time they saw
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2 it?
3 MR. GOLD: Yes or no?
4 A. Yes.
5 Q. With who was that conversation?
6 A. Mr. Litvack.
7 Q. When was that conversation?
8 A. It would have been, I think, early
9 December.
10 Q. What did Mr. Litvack say to you?
11 A. I don't remember the exact nature,
12 but let me clarify my previous answer. Okay?
13 Q. Go ahead.
14 A. I believe -- I have to check my
15 records. I believe we did an interim report to the
16 MPAA, a short interim report, and this conversation
17 would have been around that interim report.
18 Q. The interim report was a written
19 report?
20 A. I believe it was.
21 Q. In addition to the interim report
22 and the final report, were there any oral reports?
23 A. There were, I believe, several phone
24 conversations, but I don't particularly remember
25 any, I guess, meaningful revelations in those that
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2 were not in the written reports.
3 Q. All those conversations were with
4 Mr. Litvack?
5 A. That's correct. Prior to the
6 report.
7 Q. Did you make memos of any of those
8 conversations?
9 A. I certainly didn't make any memos.
10 I may have made a report -- not a report. Some
11 notes.
12 Q. When for the first time did you
13 learn that Proskauer were the lawyers for the MPAA
14 or any of the movie studios?
15 A. It would have been when I was
16 retained by them in late December or early January.
17 Q. Since you have been retained by
18 them, have you spoken to any other third parties to
19 see if DeCSS has been used to decrypt DVDs?
20 MR. GOLD: I think that by "third
21 parties" Marty means people not at any of
22 the plaintiffs and not at MPAA, and not
23 at Proskauer.
24 A. Is that true?
25 MR. GOLD: Is that true?
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2 MR. GARBUS: Yes.
3 A. Have I been retained by them? Is
4 that your question?
5 MR. GOLD: No. He asked, have you
6 spoken with such third parties.
7 You are talking about matters
8 relevant to this lawsuit?
9 MR. GARBUS: Yes.
10 A. Not to any material respect, no.
11 Q. Have you made any investigation,
12 since you have been retained by Proskauer, to
13 determine if DeCSS is being used by anyone to
14 decrypt DVDs?
15 A. You mean am I going out looking for
16 information?
17 Q. Yes.
18 A. No, but I have seen press reports
19 that it is being done.
20 Q. Which press reports are you
21 referring to?
22 A. I believe there is a Toronto Star
23 article where a reporter describes essentially
24 exactly how to do what DeCSS -- what is described
25 by the plaintiffs.
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2 Q. What is the date of that article?
3 A. It was recent. Within, I guess, the
4 last two weeks.
5 Q. Do you have a copy of it?
6 A. I believe I do in my files.
7 Q. Can you give it to me?
8 MR. GOLD: Yes. You can probably
9 get it from the system, I guess.
10 Q. Other than the Toronto article,
11 since the day you were retained by Proskauer, have
12 you learned whether anyone is using DeCSS to
13 decrypt DVDs?
14 A. I mean the affidavits, again, speak
15 to it.
16 Q. Other than the affidavits, you have
17 no information? Is there one person named in your
18 affidavit who, to your knowledge, is using --
19 A. In my affidavits?
20 Q. Yes.
21 A. No.
22 Q. The affidavits don't mention
23 anyone -- your last affidavit is dated --
24 A. Not my affidavits. The affidavits
25 provided by yourself.
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2 Q. So the only information you have,
3 then, about the use of DeCSS with respect to DVDs
4 is the information that you have seen from the
5 affidavits we have submitted?
6 MR. GOLD: I am going to say that
7 that is subject to the attorney-client
8 and work product privileges.
9 A. Now, are you --
10 MR. GOLD: That's it. Wait for
11 the next question.
12 MR. GARBUS: Can I hear the
13 question back?
14 (Record read.)
15 MR. GOLD: If you want to ask him
16 a question other than conversations that
17 would be protected, you can.
18 Q. Other than conversations that you
19 have had with Proskauer or any of their clients,
20 and the reference that you just made to the Toronto
21 Star, have you ever heard of anyone or know the
22 name of anyone who has used DeCSS to download a DVD
23 and watch a DVD?
24 A. I have certainly seen much, I guess,
25 ancillary evidence of it occurring.
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2 Q. Specific evidence.
3 MR. GOLD: I am going to object to
4 the form of the question.
5 Q. When you say ancillary --
6 MR. GOLD: If you want to ask the
7 witness what evidence he has seen, ask
8 him that.
9 Q. What ancillary evidence have you
10 seen?
11 A. A variety of websites that describe
12 copy and share your movies.
13 Q. Do you know if anyone has acted on
14 those websites, what is said in the websites,
15 mainly copy and share your movies?
16 A. I have no personal knowledge.
17 RL Q. As of today, you have no personal
18 knowledge of whether or not anyone has ever shared
19 a movie by using DeCSS to decrypt a DVD? All you
20 know is that the websites tell people to do it?
21 DI MR. GOLD: The witness' answers
22 stand for themselves.
23 Q. Is that right?
24 MR. GOLD: I have already taken
25 objection to a part of this question, so
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2 I am going to object to this question,
3 but you have all of the information at
4 the time that you ask direct questions.
5 Q. Have you ever seen a movie that had
6 been on DVD on the internet?
7 A. Have I ever seen a movie that had
8 been on DVD on the internet?
9 Q. Yes.
10 MR. GOLD: By "seen," I think he
11 means watched. Is that what you mean?
12 MR. GARBUS: Yes.
13 A. Have I ever watched one off the
14 internet?
15 Q. Yes.
16 A. No.
17 Q. Do you know of anyone who has?
18 A. Yes.
19 Q. Who?
20 A. I know of a cousin of mine.
21 Q. Do you know how it got on the
22 internet?
23 A. I do not.
24 Q. Do you know if it came from DeCSS?
25 A. In that particular case, it almost
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2 certainly did not come from DeCSS.
3 Q. So you don't know of one situation
4 as you sit here today, to the best of your
5 knowledge, where a movie was ever shown on the
6 internet that originally came from the use of
7 DeCSS; is that right?
8 A. That is correct.
9 Q. Has anyone ever told you that they
10 have ever seen a movie on the internet that came
11 from the use of DeCSS?
12 MR. GOLD: This would be other
13 than conversations with your counsel or
14 with the plaintiffs.
15 A. No.
16 MR. GARBUS: Off the record.
17 (Discussion off the record.)
18 MR. GOLD: Marty and I have just
19 agreed that none of us is going to object
20 to two people taking parts of a
21 deposition when the person taking the
22 majority of it has to leave for whatever
23 important purpose he has.
24 EXAMINATION BY
25 MR. HERNSTADT:
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2 Q. I am Ed Hernstadt. I will be the
3 lawyer on the other side of the table for the next
4 45 minutes or so.
5 Did you review any documents in
6 preparation for this deposition?
7 A. I did.
8 Q. What did you review?
9 A. I reviewed the affidavits provided
10 by the defendants, as well as my own affidavits.
11 Q. Did you read all of them or just
12 some of them?
13 A. I read most of them.
14 Q. You are currently employed by
15 Proskauer?
16 A. Define "employed."
17 Q. Do you have some kind of an
18 agreement -- is it you or your company?
19 A. My company.
20 Q. Cinea has some kind of agreement
21 with Proskauer to provide your services?
22 A. That's correct.
23 Q. What are the terms of that
24 agreement?
25 A. I am reimbursed for my time.
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2 Q. On an hourly basis?
3 A. That's correct.
4 Q. You said that you started doing work
5 unrelated to this case for Proskauer. Is that
6 subject to a second agreement?
7 A. Yes, it is.
8 Q. I am only interested in the
9 agreement that has to do with this case.
10 A. Yes.
11 Q. Although, I do want to ask you one
12 question about this new case. Is it a DVD case?
13 A. It is not a DVD case per se, no.
14 Q. Does it implicate copying or piracy?
15 A. It might, yes.
16 Q. When you worked for MPAA, that was
17 also through your company Cinea?
18 A. That's correct.
19 Q. You personally have never had a
20 relationship with the MPAA?
21 A. That is correct.
22 Q. And you never have had a
23 relationship with any of the plaintiffs in this
24 matter?
25 A. Me personally, that's correct.
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2 Q. And you never have had a
3 relationship with Proskauer?
4 A. That's correct.
5 Q. And Proskauer, are they representing
6 you today, you personally?
7 A. (No response.)
8 Q. That is not a technical question. I
9 mean have you hired the Proskauer firm to be your
10 lawyers for the purposes of being your lawyers?
11 A. Separate from their hiring me as an
12 expert witness?
13 Q. Yes.
14 A. No.
15 Q. Can you tell me the terms of the
16 agreement that exists between Cinea and Proskauer?
17 A. Yes. Cinea is reimbursed at the
18 rate of $325 per hour for my time, plus reasonable
19 expenses.
20 Q. What was Cinea hired to do?
21 A. Cinea was hired to provide factual
22 evidence to the best of our ability.
23 Q. Factual evidence about what?
24 A. About what we were asked questions
25 about.
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2 Q. Tell me to help me out.
3 A. Effectively, about the two --
4 essentially around the essence of the two
5 affidavits that have been filed under my name or
6 that I have filed, I guess. I don't know what the
7 terminology is. I'm sure there is a legal term. I
8 don't know.
9 Q. Specifically looking at Exhibit A,
10 it's the three items in Paragraph 1 of your
11 Declaration.
12 A. The first Declaration?
13 Q. Yes, the first Declaration.
14 A. Okay. My resume.
15 Q. No. Paragraph 1 of the Declaration.
16 A. I'm sorry. Paragraph 1 of the
17 Declaration. Yes.
18 MR. HERNSTADT: Let's mark this as
19 Defendant's Exhibit 2.
20 (Defendants' Exhibit 2, Supplemental
21 Declaration of Robert Schumann, dated
22 April 3rd, marked for identification, as of
23 this date.)
24 MR. HERNSTADT: This is the
25 Supplemental Declaration of Robert
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2 Schumann, dated April 3rd.
3 BY MR. HERNSTADT:
4 Q. These are the only two declarations
5 that you have done in this case; is that correct?
6 A. Yes.
7 Q. Turning to Paragraph 1 of the
8 Supplemental Declaration, you list two things. The
9 technical aspects of hyperlinks on the internet and
10 the particular hyperlinks presented on the website
11 of 2600.
12 Taken together, those are the areas
13 that you were hired to provide Proskauer with
14 expert information about; is that correct?
15 A. Yes.
16 MR. GOLD: The document says that.
17 THE WITNESS: Work product.
18 Q. I'm sorry?
19 A. This is the result of the
20 discussions.
21 MR. GOLD: The sentence says:
22 "In this Declaration I focus particularly
23 on the issues of linking on the internet,
24 including --" and he mentions two of a
25 group of issues that he is looking into
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2 and then, of course, there is the
3 original agreement where he says what he
4 is looking into.
5 MR. HERNSTADT: In the first
6 Declaration?
7 MR. GOLD: In the first
8 Declaration.
9 MR. HERNSTADT: That's what I
10 said.
11 Q. Taken together, the two
12 declarations, the areas laid out in Paragraph 1 of
13 the first Declaration and the second Declaration,
14 does that define the scope of the work that you
15 were hired to perform services?
16 MR. GOLD: You mean define it at
17 the beginning or define it at the end?
18 MR. HERNSTADT: In Paragraph 1 of
19 the first Declaration, there is sub A,
20 sub B, and sub C, which says that this is
21 what in particular he has focused on in
22 that Declaration.
23 In the Supplemental Declaration
24 Paragraph 1, sub A and sub B, he says
25 he is focusing on two particular areas.
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2 Q. My question is: Are those areas the
3 areas for which you were hired to provide expert
4 fact testimony or expert fact information for
5 Proskauer?
6 A. I was not hired for a particular
7 area, I guess. I mean there was no -- there was no
8 agreement up front that I would testify in these
9 two particular areas to provide information.
10 Q. What I am trying to get at is what
11 were you hired to give them?
12 A. I was hired to provide my
13 professional opinion and expertise in this case.
14 Q. On any aspect of this case or on
15 particular aspects of this case?
16 MR. GOLD: What the witness said
17 was that he was going to deal -- he
18 just -- this is the third or fourth time.
19 MR. HERNSTADT: He is going back
20 and forth.
21 MR. GOLD: No. You are.
22 MR. HERNSTADT: Mr. Gold, --
23 MR. GOLD: I object to the form of
24 the question.
25 MR. HERNSTADT: Go ahead. You can
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2 answer it.
3 MR. GOLD: Do you remember the
4 question?
5 THE WITNESS: Can you please read
6 back the question?
7 (Record read.)
8 A. I presume they will only ask me
9 questions on particular aspects of this case.
10 Q. What are the particular aspects of
11 the case?
12 A. Two examples are embodied in the
13 Supplement in the Declaration.
14 Q. Can you take a look at the first
15 Declaration, if you would.
16 A. Yes.
17 Q. In 1B you say that you are going to
18 focus on historical developments within the Linux
19 community showing that DeCSS is not a program
20 designed as a part of the development of the Linux
21 compatible DVD player.
22 A. Correct.
23 MR. GOLD: It says that he did
24 focus on it.
25 MR. HERNSTADT: It says what it
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2 says.
3 MR. GOLD: I know, but you keep on
4 asking -- let me just read it right and I
5 won't say anything.
6 MR. HERNSTADT: Whatever.
7 Q. I take it the basis for the
8 information contained in the Declaration were the
9 logs that were sent to you by the MPAA; is that
10 correct?
11 A. Relative to the historical
12 developments --
13 MR. GOLD: You can ask what you
14 want to ask, but you can't interrupt the
15 witness.
16 MR. HERNSTADT: Please do not
17 interrupt my deposition.
18 MR. GOLD: Not if you are going to
19 interrupt the witness. I am telling you
20 clearly, not if you are going to
21 interrupt the witness. You cannot
22 interrupt the witness.
23 MR. HERNSTADT: Mr. Gold, let me
24 just continue.
25 MR. GOLD: You cannot interrupt
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2 the witness.
3 MR. HERNSTADT: Read back the
4 question.
5 (Record read.)
6 MR. GOLD: Did you finish your
7 answer?
8 A. Within the Linux community.
9 Q. What did you do with those logs
10 after you sent the MPAA the report that you
11 described earlier to Mr. Garbus?
12 A. I filed them.
13 Q. So you possess those logs still?
14 A. I do.
15 Q. Do you possess all of them? In
16 other words, do you take photocopies of the
17 excerpts from those logs that are attached as
18 Exhibits A and B?
19 A. I did.
20 RQ MR. HERNSTADT: I call for
21 production of the entire logs in your file.
22 MR. GOLD: Taken under advisement.
23 Q. In Paragraph 1C, can you tell me
24 what the basis of -- excuse me.
25 You say in particular you have
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2 focused on and then going down to C, "Defendants
3 claim that they are proliferating DeCSS as part of
4 a legitimate analysis of how the DeCSS algorithm
5 works."
6 Where do defendants claim what you
7 say they claim in 1C?
8 A. My recollection is that is based on
9 some of the claims in websites posting DeCSS.
10 Q. Which websites?
11 A. I can't remember off the top of my
12 head. I would have to --
13 Q. We only represent Emanuel Goldstein.
14 That's the only defendant I am concerned about.
15 Was it on Emanuel Goldstein's website?
16 A. I believe it was, but I would have
17 to check that website or the records of that
18 website.
19 MR. GOLD: By the way, on the
20 documents you are asking for, it will be
21 faster if you keep a list of them,
22 because we are not going to get this
23 transcript for a while.
24 MR. HERNSTADT: I will give it to
25 you.
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2 MR. GOLD: We won't wait for the
3 transcript if you give me a list.
4 MR. HERNSTADT: Absolutely. I
5 will send you a letter at the end of the
6 day.
7 MR. GOLD: Good.
8 Q. Do you have printouts of
9 Mr. Goldstein's website?
10 A. I believe I have printouts of some
11 of the pages. I believe they are attached even to
12 this, I presume.
13 Q. And so it is attached as an exhibit
14 to your Declaration?
15 A. I believe -- I mean I would have to
16 look, but I believe --
17 Actually, I take that back. For
18 this Declaration it did not have any website
19 attachments. The Supplemental did.
20 MR. HERNSTADT: I would just call
21 for the production of any documents that
22 contain a claim by any of the defendants,
23 past or current, that they are
24 proliferating DeCSS as part of a
25 legitimate analysis of how the DeCSS
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2 algorithm worked.
3 MR. GOLD: Are you including
4 affidavits and briefs that defendants
5 have filed?
6 MR. HERNSTADT: By definition,
7 because this Declaration was signed on
8 January 19th, whatever he had was at the
9 time he made this statement.
10 MR. GOLD: You are still on the
11 first?
12 MR. HERNSTADT: Yes. Still on the
13 first.
14 Q. You answered Mr. Garbus' question
15 earlier that the DeCSS served only one function,
16 which was to decrypt CSS protected cipher text and
17 copy and store the encrypted audio-visual data in
18 one or more computer files.
19 I am reading that from Paragraph 2
20 of your Declaration.
21 A. Yes.
22 Q. Does DeCSS also have the function of
23 permitting a consumer who has purchased a DVD to
24 evade the region coding?
25 A. No.
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2 Q. Does DeCSS permit a consumer who has
3 purchased a DVD to fast-forward through sections of
4 a DVD that the manufacturer has prevented from
5 being fast-forwarded?
6 A. DeCSS itself?
7 Q. That's my question.
8 A. No.
9 Q. Does DeCSS enable someone to use
10 with some other program, like a DVD player, to skip
11 the region code?
12 A. I think it is irrelevant to that
13 problem.
14 Q. You think DeCSS is irrelevant to
15 that problem?
16 A. To the problem of evading region
17 code?
18 Q. Yes.
19 A. Yes.
20 Q. You have reviewed some of the
21 declarations that the defendants have submitted?
22 A. Yes, I have.
23 Q. In a Declaration if there is a
24 statement that says that DeCSS permits you to evade
25 region coding, a region coding limitation, then
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2 that statement is incorrect?
3 MR. GOLD: I object to the form.
4 Q. You can answer the question.
5 A. In my professional opinion, DeCSS is
6 irrelevant to evading the region coding, in your
7 terminology.
8 Q. Why is that?
9 A. Because region coding is not part of
10 the DeCSS specification.
11 Q. What is CSS? I will be a little
12 more specific. What is in the specification of
13 CSS?
14 A. To my understanding, CSS describes
15 an access control mechanism for the disk, an
16 encryption and decryption mechanism for the disk,
17 and a key management function.
18 Q. What do you base that understanding
19 on?
20 A. My experience in the DVD industry.
21 Q. Can you be more specific? What
22 experience?
23 A. I have six plus years now in --
24 actually, DVD has only been around four years, but
25 I have been working in the field since the
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2 beginning of DVD and have intimate knowledge of the
3 DVD specs.
4 Q. Have you ever reviewed the CSS
5 source code?
6 A. The CSS source code? I have not.
7 Q. Have you ever seen a CSS license?
8 A. I have not.
9 Q. Do you know what the terms of the
10 CSS license are?
11 A. Not as a factual matter, no.
12 Q. In your six years of working with
13 DVDs, you know the DVD specifications?
14 A. Yes.
15 Q. How does that tell you what the CSS
16 does and how CSS works?
17 A. I know -- I know what the DVD
18 specification does and I know what the -- from
19 working in the industry, what CSS adds technically
20 to DVD, but I do not know the details of the CSS
21 specification.
22 Q. Could you then describe the
23 securities system or security devices, however you
24 would phrase that, that protect the information on
25 a DVD? What are these different systems or
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2 devices --
3 A. Can you define "protect"?
4 Q. -- that prevent consumers from
5 getting at the copyrighted material on a DVD?
6 A. In what way? You describe --
7 Q. Let's start with accessing. The two
8 aspects I am looking at are accessing the material
9 and playing the material.
10 A. Can you please break the question
11 into -- are you including both region coding and
12 copy control?
13 Q. I want to know all the different
14 things that are on a DVD that protect, access, or
15 protect playing or protect copying, and I use
16 copying and accessing together. You have to get
17 access to copy.
18 A. There are, to my knowledge, two
19 mechanisms. There is a mechanism called region
20 control or region codes, which is part of the DVD
21 specification, and there is the CSS system itself.
22 Q. Have you tried to use DeCSS to see
23 if it has any effect on region coding?
24 A. I have absolutely no need to do
25 that.
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2 Q. Why not?
3 A. Because I know for a fact that it
4 has no impact on region coding.
5 Q. How do you know that?
6 A. Because I have in the past had
7 intimate and detailed knowledge of how region
8 coding is implemented in DVDs and that is
9 completely embodied within the DVD specification
10 and, therefore, CSS or DeCSS would have no impact
11 on that.
12 Q. I am asking about DeCSS, not CSS.
13 A. To my knowledge, DeCSS would have no
14 impact on that either.
15 Q. Tell me, what does DeCSS do?
16 A. DeCSS, as described in my
17 Declaration, DeCSS performs three -- has three
18 parts to it, if you will. It authorizes the DVD
19 drive to release the CSS protected information, it
20 allows its user, through user interface, to select
21 one or more files from the DVD to copy.
22 Both select what to copy and also
23 where to copy those data files, and that can be on
24 any, I guess, connected drive or network connection
25 that is attached to their computer in the standard
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2 Windows file system. And then after the user
3 indicates what files they would like to decipher
4 and store, it then proceeds to read -- decrypt the
5 contents of those files and store them where
6 indicated by the user.
7 Q. And you indicated that you undertook
8 that exercise; is that correct?
9 A. I did run the DeCSS, yes.
10 Q. What movie did you use?
11 A. I don't recall. It may have been, I
12 think, The Matrix came out around then.
13 Q. Do you know how big the movie was,
14 how many gigabytes?
15 A. It was 4 or 6 gigabytes. It was
16 probably 4 gigabytes.
17 Q. Do you have a record of what movie
18 you viewed?
19 A. I doubt I kept a detailed written
20 record of it.
21 Q. You actually don't know what movie
22 it was or how big it was?
23 A. Not exactly, no.
24 Q. Did you leave the deciphered or
25 decrypted files on your hard drive?
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2 A. I doubt I did. I may have.
3 Q. How big is your hard drive?
4 A. I think the machine that ran on was,
5 I don't know, 10, 12 gigabytes.
6 Q. Did you have to clear files out in
7 order to make room to store the movie?
8 A. No.
9 Q. You had between 4 and 6 open
10 gigabytes of space on your hard drive?
11 A. Yes.
12 Q. You didn't play it, so you don't
13 know if it would actually play?
14 A. I played it from the DVD.
15 Q. But you didn't play it from the
16 stored files; is that correct?
17 A. I did not.
18 Q. You don't know if that would
19 actually play or not?
20 A. There is no -- there is no reason
21 why the resulted decrypted files will not play.
22 Q. But you don't know one way or the
23 other; correct?
24 MR. GOLD: He just testified that
25 he did.
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2 A. I know that those files are exactly
3 as playable as when they were on the DVD, except
4 they are in decrypted form.
5 Q. How do you know they are decrypted?
6 A. What?
7 Q. How do you know they are decrypted?
8 You didn't test it; right?
9 A. I looked at some of the structures
10 in the file.
11 Q. How did that tell you that it was
12 decrypted?
13 A. DVD has a very specific structure
14 within it and the encryption destroys that
15 structure, so you can look at the structure.
16 Q. Your assumption is that it would
17 play, but you didn't actually view it?
18 A. Yes.
19 Q. Okay. Fair enough. In Paragraph 4
20 of your Declaration you say that, in the very last
21 sentence, "The stored unencrypted movie file and
22 then be further copied, electronically transmitted,
23 digitally altered, or displayed."
24 Can you explain how it can be
25 further copied?
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2 A. Certainly. I can go in Windows. As
3 an example, I can move it from one hard drive to
4 another or to a computer that is attached on the
5 network, using an Explorer.
6 Q. Within a network, let's take for a
7 moment in your office, you can move it from one
8 computer to another?
9 A. Within -- yeah, within the office or
10 if I was on a university campus, I can move it from
11 one computer to another.
12 Q. Assuming that the other computer had
13 enough space on the hard drive?
14 A. That's correct.
15 Q. How else would you copy it?
16 A. You could copy it to tape, you could
17 copy it to CDs.
18 Q. In Paragraph 5 you say there are
19 products available at a reasonable cost. Could you
20 tell me specifically what those products are?
21 A. I would have to look at the
22 attachments. I believe there were attachments that
23 showed specific product. Not a separate exhibit.
24 There was a -- I mean there is on-stream, there are
25 tape drives, there are a variety of tape drives.
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2 Q. What tape drives are there?
3 MR. GOLD: Had you finished your
4 answer to the last question?
5 THE WITNESS: Can you read back
6 the question and my answer.
7 (Record read.)
8 THE WITNESS: What you are saying
9 is, "What tape drives are there?" is a
10 separate question?
11 MR. GOLD: You had finished the
12 prior question?
13 THE WITNESS: Yes.
14 MR. GOLD: Go ahead.
15 A. There is certainly the on-stream and
16 at the time I don't recall, but at the time we
17 looked on the internet and found a variety of tape
18 drives you could find -- like go into buy.com and
19 buying the drives and the tapes.
20 Q. Do you have a record of that
21 research?
22 A. I believe I do, yes.
23 RQ MR. HERNSTADT: I call for the
24 production of that.
25 Q. I take it that this is all in the
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2 MPAA file that you say that you maintained?
3 A. This, I assume, would be in my
4 Proskauer file.
5 Q. When you say a tape drive for less
6 than $300, for example, the on-stream tape drive?
7 A. That's what was referenced here. I
8 would have to look at the details, but there were
9 several different mechanisms that were relatively
10 cost effective.
11 Q. How big are these high capacity
12 digital tape drives?
13 A. I have to look at the details, but
14 some of them go up to 15 or 20 gigabytes.
15 Q. Do they have the same quality as a
16 DVD?
17 A. Yes. Absolutely.
18 Q. Do they have the same functionality
19 as a DVD?
20 A. In what sense?
21 Q. Can you play a movie on a tape the
22 same way that you can play a movie on a DVD?
23 A. Depends on the playback software,
24 but you would lose some functionality playing back
25 directly from a tape.
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2 Q. Is there another way to play it
3 back, other than directly from a tape?
4 A. You can copy it to a hard drive and
5 then play it from your hard drive.
6 Q. So this is all for playing on a
7 computer?
8 A. I would presume, yes.
9 Q. You also mentioned writable DVD.
10 How much are DVD burners?
11 A. It depends on the DVD burner.
12 Q. Can you give me a range, please?
13 A. I believe DVD read-write drives, and
14 don't hold me to the exact acronym. There are
15 three or four technologies, as one of the
16 affidavits that you presented accurately describes,
17 but there is one of them that I believe is for sale
18 now, for the drives, $400 or $500.
19 Q. Can you tell me which one that is?
20 A. I think it is DVD-RW, but I would
21 have to look.
22 Q. What company or manufacturer sells a
23 DVD burner for $400 or $500?
24 A. I believe there are several -- I
25 know there are several manufacturers. MEI,
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2 otherwise known as Panasonic. I believe Pioneer
3 has a competing, and I think Sony has another one.
4 Phillips, also, has the technology. Again, I don't
5 know who is behind exactly which technology. There
6 are three or four.
7 Q. They are all available for $400 or
8 $500?
9 A. I don't believe they are all
10 available.
11 Q. Which is available for $400 or $500?
12 A. Again, I don't know exactly without
13 looking.
14 Q. Did you look this up at one point?
15 A. Yes, I have occasionally looked at
16 the prices.
17 Q. Do you have a record of this?
18 A. I doubt I would have a detailed
19 record. I may have looked at DVD read-write
20 drives. When I did the affidavit, I would have
21 looked and found at least one.
22 Q. Do you know how much the media cost?
23 A. For?
24 Q. DVD read-write.
25 A. I'm sure that depends on the
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2 technology.
3 Q. Does that mean you know --
4 A. No, I don't know. Off the top of my
5 head, I do not know the exact details.
6 Q. Do you know, when you say there are
7 several competing technologies, is there a single
8 standard yet for DVD burners?
9 A. No, there is not a single standard.
10 Q. Do you know when there will be or if
11 there will be?
12 A. I would imagine there will be a
13 dominant standard that will emerge.
14 Q. I'm not asking you to speculate or
15 guess. If this is beyond your area of expertise,
16 just say so?
17 A. It is likely that a dominant
18 standard will emerge.
19 Q. Do you know when?
20 A. Somebody will win. I have no idea
21 when.
22 Q. So that means that if you burn a DVD
23 on, let's say a Panasonic burner, it won't play in
24 a Phillips player; is that correct?
25 A. That's not a given.
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2 Q. Does it depend on what technology
3 they use?
4 A. It depends on what technology the
5 DVD drive can read.
6 Q. So if the DVD drive is built to read
7 the technology of the particular burner that that
8 same company makes --
9 A. Then you would be able to read that
10 disk. It's really more the disk than the drive on
11 the burner.
12 Q. How would you distribute a DVD movie
13 on the internet?
14 A. In a variety of ways. There are a
15 variety of ways.
16 Q. Go ahead, please.
17 A. You could distribute it in its
18 native DVD form. In other words, essentially the
19 decrypted output of DeCSS could then be made
20 available via a large variety of mechanisms.
21 Anything from to friends and the extreme pace,
22 sending an e-mail, but you would put it on your web
23 page and your friends or whoever can come get it.
24 Or the much more likely feature scenario, you could
25 make it available with new tools coming out now.
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2 The Gnutella and Napster, Freenet,
3 I-Search, and -- I think it is called I-Search --
4 and a variety of others. There is a whole series
5 of these coming available now. More likely you
6 would take the decrypted content in order to make
7 it smaller to make it easier for people with lower
8 bandwidths to acquire the contents.
9 You might, for instance, use the
10 recently released DivX software to further compress
11 the file and allow even faster access to the
12 content.
13 Q. If you were to e-mail it to a
14 friend, a DVD movie that was, let's say, 6
15 gigabyte, how long would that take?
16 A. It depends where the friend is and
17 what the e-mail system is.
18 Q. What kind of system do you have?
19 A. In my office I have access to an
20 ISDN link to the network.
21 Q. What is that? Is that a T1? Is
22 that a T3?
23 A. No. 128 kilobit per seconds.
24 Q. How long would it take you to
25 e-mail?
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2 A. I would have to do the math and
3 e-mail is controlled also by the speed of the
4 intermediate server. It would take several hours
5 at least.
6 Q. Did you review John Gillmore's
7 affidavit estimating the length of time it would
8 take to transmit a movie using a 56K modem and then
9 a T1 line?
10 A. I recall seeing his affidavit. I
11 would have to see exact text to comment on the
12 details of it.
13 Q. You said tools like Gnutella,
14 Napster, Freenet, I-Search. What kind of tools are
15 they?
16 A. They are essentially file-sharing
17 tools that have been recently described accurately,
18 I think, as consumer-to-consumer file sharing
19 tools.
20 Q. Using those tools, the consumer
21 still has to download the movie; is that correct?
22 A. Download in what sense?
23 Q. In order to acquire a copy of it to
24 view.
25 A. Yes. They get a copy from whoever
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2 is providing the copy, that's correct.
3 Q. So that doesn't save any time in
4 terms of downloading. It just gives you a place to
5 go to find it; is that correct?
6 A. That's correct. It has no impact on
7 the download speed.
8 Q. Are you aware of DeCSS being used in
9 conjunction with DivX?
10 A. With DivX?
11 Q. Yes.
12 A. I believe I have seen some press
13 reports to that effect.
14 Q. Where have you seen that?
15 A. On the -- Toronto Star article, I
16 think. I would have to look in detail. And I know
17 I went to the DivX website and it described using
18 DeCSS in conjunction with DivX to share movies.
19 Q. There is no need to use DeCSS; is
20 there?
21 A. In what sense?
22 Q. There is other ways of getting the
23 movies so that you can compress it using DivX;
24 isn't that correct?
25 A. So it can compress it using DivX?
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2 Q. Or to use with DivX.
3 A. Not that would give you the same
4 result, to my knowledge.
5 Q. Is it your understanding that all
6 the movies that are available using DivX have been
7 decrypted with DeCSS?
8 A. No.
9 Q. How do you explain those two sort of
10 seemingly contradictory understanding?
11 MR. GOLD: Objection as to form.
12 Do you understand the question?
13 THE WITNESS: I understand.
14 Q. Go ahead.
15 A. I guess I don't understand why you
16 think they are contradictory. Perhaps you can
17 clarify what you find contradictory with my answer.
18 Q. You said that not all the -- let's
19 call it a DivX movie. Do you understand that term?
20 A. A DivX compressed movie, yes.
21 That's fine.
22 Q. That not all those movies are made
23 using DeCSS.
24 A. I have no knowledge one way or
25 another.
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2 Q. It is your opinion that you would
3 get a better quality DivX movie if you used DeCSS?
4 A. I believe I said that there is no
5 tool, to my knowledge, that would give you the
6 equivalent result of DeCSS.
7 Q. Could you explain what you mean by
8 that, equivalent result of DeCSS?
9 A. DeCSS gives you a perfect replica of
10 the sort content of the DVD, on the original DVD.
11 A perfect unencrypted, unprotected copy of the
12 source DVD and, to my knowledge, no other tools,
13 other than perhaps some Linux tools, built on DeCSS
14 or built on the source of DeCSS, equivalent
15 functions give you the same thing.
16 Q. Do you know if there are players
17 that will play those decrypted movies?
18 A. I have heard and seen reports that
19 there are some players. I have no personal
20 knowledge.
21 MR. HERNSTADT: Why don't we stop
22 now.
23 (Luncheon recess taken at 12:55 p.m.)
24 --o0o--
25 A F T E R N O O N S E S S I O N
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2 (Time noted: 2:05 p.m.)
3 R O B E R T W. S C H U M A N N, resumed and
4 testified as follows:
5 CONTINUED EXAMINATION
6 BY MR. GARBUS:
7 Q. Before you were talking about DVD
8 burners. Can you tell me what a DVD burner is used
9 for at the present time?
10 A. I'm sure I am not aware of all the
11 uses, but it is used for a variety of purposes.
12 Q. Go ahead and tell me what that
13 variety is.
14 A. Some of them have used it to make
15 DVDs, actual DVDs in the video sense. I am sure
16 they are used for large capacity storage devices.
17 Those are the primary purposes I am aware of.
18 Q. Do you know of any other purposes
19 that it can be used for in the future? Are those
20 primarily the purposes for which it was intended?
21 A. I don't think the DVD writers have
22 any particular intent.
23 Q. Have you ever burned a DVD?
24 A. Not directly.
25 Q. When you say not directly --
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2 A. I have caused them to be burned, but
3 I have not operated the machinery myself.
4 Q. What happened when you caused it to
5 be burned?
6 A. We were able to play the resultant
7 DVD in the DVD player.
8 Q. Did you see it?
9 A. Yes, I did.
10 Q. Do you have notes of the quality of
11 which you saw?
12 A. No.
13 Q. Do you know how long the burning
14 took?
15 A. I don't know the exact period of
16 time. I think it was a standard writing. Standard
17 period, one to two hours.
18 Q. Do you know of any DVD that was
19 burned that was ever sold?
20 A. Yes.
21 Q. Do you have a disk concerning your
22 burning or having the DVD burned at your request?
23 A. I don't believe in my possession.
24 Q. Where is it?
25 A. That would be with my former
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2 employer.
3 RQ MR. GARBUS: I ask that it be
4 produced.
5 MR. GOLD: Taken under advisement.
6 Q. You say you do know of a DVD that
7 was sold that was burned?
8 A. I believe -- I mean --
9 Q. From your own personal knowledge.
10 A. I believe that it has occurred.
11 Q. No. From your own personal
12 knowledge.
13 A. Certainly no DVD that I caused to be
14 burned was sold.
15 Q. Do you know of any DVD particularly
16 that anybody caused to be burned was sold?
17 A. I believe I know of circumstances,
18 but I can't guarantee them.
19 Q. Give me the best of your
20 recollection.
21 A. I know, for example, that DVDs are
22 used on aircraft in very small quantities where it
23 is cost effective to burn them individually rather
24 than do a pressing.
25 Q. When you say on aircraft, what do
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2 you mean by that?
3 A. On planes. You know, watching
4 movies -- playback on planes.
5 Q. I am talking now particularly about
6 movies that are being ripped off.
7 A. Oh, I'm sorry. I didn't understand
8 that qualification earlier.
9 Q. With that qualification, can you
10 answer those questions?
11 A. With that qualification, I have no
12 specific knowledge.
13 Q. So you have no knowledge of any DVD
14 that was burned, that was allegedly ripped off,
15 ever sold?
16 A. Burned on an individual writer?
17 Q. Yes.
18 A. Personal knowledge, no.
19 Q. Burned on any kind of writer?
20 A. No.
21 Q. Since you have been employed by
22 Proskauer, have you had any conversations with the
23 MPAA about how many DVDs they believe were seen by
24 anybody as a result of DeCSS?
25 A. No.
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2 Q. Have you had any conversation with
3 Universal concerning that?
4 A. No.
5 Q. Other than Time Warner, putting them
6 aside, have you had any conversations with the
7 other plaintiffs concerning that?
8 A. No.
9 Q. Have you ever seen any MPAA records
10 indicate that they know of a DeCSS being used to
11 gain access to a DVD, particular access?
12 A. Is this different than your earlier
13 question?
14 Q. Yes. Talking about records now
15 rather than people.
16 A. I believe before lunch I said that I
17 had no knowledge of any records of any shape from
18 the studios, relative to -- I guess pirated movies.
19 I don't remember the exact question, but I think we
20 have went over this. I apologize, but I don't want
21 to waste any of our time.
22 Q. Have you ever seen any records that
23 Proskauer has --
24 A. I have not.
25 Q. -- concerning whether or not they
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2 know of any particular case of DeCSS being used
3 with respect to DVDs?
4 A. I have not.
5 Q. Do you know if Proskauer or any of
6 the plaintiffs or the MPAA has retained any firm or
7 any third person to see the application or to
8 understand the application of DeCSS to DVDs?
9 A. I have no knowledge.
10 MR. GARBUS: Can I hear the last
11 question, please.
12 (Record read.)
13 BY MR. GARBUS:
14 Q. Do you know whether either Proskauer
15 or any of the plaintiffs had ever seen the DVD that
16 had been decrypted by DeCSS?
17 A. I have no knowledge.
18 Q. Have you ever seen any reports from
19 Proskauer or the MPAA or any of the plaintiffs
20 indicating whether or not they had ever seen the
21 DVD after the application of DeCSS?
22 A. You were referring to pirated DVDs
23 when you clarified?
24 Q. Yes.
25 A. I have no knowledge.
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2 Q. Do you have any knowledge whether
3 anybody at the MPAA claims that there ever was a
4 pirated copy of a DVD sold, a copy that had been
5 enabled by the use of DeCSS?
6 A. I have no knowledge.
7 Q. Would your answer be the same with
8 respect to Proskauer and the seven plaintiffs in
9 this case, excluding Time Warner?
10 A. I believe so, yes.
11 Q. Read back the last question and
12 answer.
13 (Record read.)
14 Q. You mentioned the article in the
15 Toronto Star. That was back in May; was it?
16 A. I believe this was -- May of this
17 year?
18 Q. Yes.
19 A. I believe so. I don't recall the
20 exact date.
21 Q. Do you recall the article says
22 that -- you stated before that the article says
23 that he used DeCSS to get access to a DVD; is that
24 right?
25 A. To remove the CSS encryption, yes.
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2 Q. Do you recall anything else about
3 the article? Did it tell you if he was successful?
4 Did it tell you what the quality of the film was
5 that he saw? Did he see such a film? Did he tell
6 you anything about the problems that he had in
7 getting to the DVD?
8 A. If I generally recall, and I have to
9 look in detail, but I believe it described the
10 removal of CSS as fairly straightforward and then
11 he apparently had a playback system that needed
12 some more work. Because if I remember correctly,
13 he described some issues in the playback of the
14 content.
15 Q. Do you remember what those issues
16 were?
17 A. I don't remember in complete
18 specific detail, but I think there was some
19 audio/video syncing issues perhaps.
20 Q. Do you know if he ever got the audio
21 off the DVD?
22 MR. GOLD: Do you want to show him
23 a copy of the article since it speaks for
24 itself or do you want to play memory
25 games?
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2 MR. GARBUS: Go ahead,
3 Mr. Schumann.
4 A. Did he ever get the audio --
5 Q. -- off the DVD?
6 A. If he ran DeCSS and, in fact, copied
7 what is referred to as a VOB file and removed CSS,
8 then he did, in fact, remove the audio from the
9 DVD, as they are intertwined.
10 Q. Do you know if he did that?
11 A. I can only presume that he claimed
12 to have ran CSS and removed it. CSS does not
13 distinguish between the audio and the video.
14 Q. Do you recall what the quality was
15 of the audio and the visual?
16 MR. GOLD: You mean what the
17 article says about the Quality?
18 MR. GARBUS: Yes.
19 MR. GOLD: You don't want to show
20 him the article?
21 MR. GARBUS: No.
22 MR. GOLD: Do you remember that?
23 THE WITNESS: I believe it
24 referenced the quality of the playback
25 being poor, but in my professional
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2 opinion, that has nothing to do with the
3 quality of the DeCSS. Only to do with
4 the playback environment.
5 Q. Have you ever seen the quality of a
6 DVD that has been accessed by DeCSS?
7 A. I'm sorry. I don't fully
8 understand.
9 Q. Have you ever seen the film that was
10 on the DVD that was accessed through the use of
11 DeCSS and have you ever observed its quality?
12 A. Are you saying have I ever seen a
13 playback after DeCSS to assess the result and
14 quality?
15 Q. Yes.
16 A. I believe, as I stated earlier, I
17 have never seen, personally seen the playback after
18 DeCSS, but there is nothing in the DeCSS process
19 itself which would have any impact on the quality
20 of the resultant playback.
21 Q. Do you recall if the Toronto
22 reporter mentioned that he had lost the audio using
23 DivX?
24 A. I don't recall the specific details
25 of the pieces he did.
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2 Q. Do you recall whether the article
3 talks about how long it took to --
4 A. I believe he was frustrated with the
5 quality of the software he was using.
6 Q. When you say he was frustrated, can
7 you explain that further?
8 A. I believe he described that he
9 attempted one process that failed after some hour
10 period or something to that regard, and he had to
11 restart.
12 Q. Do you recall, when he restarted,
13 whether it worked or not?
14 A. I believe he succeeded to some
15 degree.
16 Q. When you say he succeeded to some
17 degree, do you know what degree he succeeded?
18 MR. GOLD: Do you want to show him
19 the article?
20 MR. GARBUS: No.
21 MR. GOLD: Do you recall?
22 THE WITNESS: It may have been a
23 subset of the original, but I believe
24 that was only on playback.
25 Q. Other than the article writer who
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2 described the application of DeCSS, have you ever
3 spoken to anyone else at any time since November or
4 December who has used DeCSS for the purposes of
5 decrypting a DVD?
6 A. For the purposes of decrypting a
7 DVD?
8 Q. For the purposes of watching a DVD.
9 MR. GOLD: You mean a DVD that has
10 already been decrypted? I object to the
11 question.
12 Q. Do you understand the question?
13 MR. GARBUS: Read the question
14 back.
15 MR. GOLD: I don't understand the
16 question.
17 MR. GARBUS: Read the question.
18 (Record read.)
19 MR. GARBUS: Go ahead.
20 MR. GOLD: I think the question
21 is: Did you ever speak to anyone else
22 for the purpose of watching a DVD that
23 has been decrypted. If you know what
24 that means, you can answer.
25 A. Other than the plaintiffs? In that
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2 group?
3 Q. Right.
4 A. I am not particularly aware of any,
5 no.
6 Q. But plaintiffs within the group
7 have, to your knowledge, viewed DVDs?
8 A. I have no knowledge.
9 DI MR. GOLD: I am going to object to
10 that on the basis of attorney-client and
11 work product.
12 MR. GARBUS: Do you want to define
13 the basis for this objection or would you
14 rather wait for the judge for that? Both
15 the attorney-client and the work product.
16 MR. GOLD: Sure. All work-product
17 objections held by the people he has been
18 designated as a witness for are
19 applicable to him in his testimony.
20 MR. GARBUS: I am not clear,
21 Mr. Gold. Are you representing the
22 witness at this deposition?
23 MR. GOLD: Yes.
24 BY MR. GARBUS:
25 Q. Did you retain Proskauer to
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2 represent you at this deposition, Mr. Schumann?
3 A. Are you asking did I hire them to
4 represent me?
5 Q. Yes.
6 A. No.
7 Q. Did they volunteer to represent you?
8 A. I guess that is not entirely clear
9 to me.
10 Q. Do you know why they are here today
11 on your behalf?
12 A. I believe I, if I understand this
13 process correctly, I at some degree are here on
14 their behalf.
15 RL Q. You are Proskauer's witness?
16 DI MR. GOLD: He is not here as a legal
17 expert and so I am going to put an end to
18 this. If you want legal advice, see your
19 colleagues. They will be happy to help
20 you.
21 MR. GARBUS: I didn't ask him for
22 legal advice.
23 MR. GOLD: Yes, you did. You
24 asked him for legal conclusions and I am
25 going to put a stop to it. We let it go
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2 for a while to see if we can divert your
3 attention to something relevant. We
4 haven't succeeded, so I have to object.
5 Q. Have you or the MPAA or any of the
6 plaintiffs, to your knowledge, gotten information
7 from any third parties, at any time, concerning the
8 quality of the movie that has been decrypted from a
9 DVD?
10 MR. GOLD: Answer that question
11 "yes" or "no." If you would, sir.
12 THE WITNESS: Can you read back
13 the question for me, please.
14 (Record read.)
15 MR. GOLD: If you have any
16 information, answer "yes." If you don't
17 know anything about that question, answer
18 "no."
19 A. Yes.
20 RL Q. What is that information?
21 DI MR. GOLD: I am going to object on
22 the basis of the work product privilege and
23 the attorney-client privilege.
24 Q. Did you obtain that information
25 prior to January 14th?
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2 A. Can you read the original question
3 back again?
4 (Record read.)
5 A. The answer is "yes."
6 Q. Was that information ever contained
7 in a written report or a letter or any document?
8 MR. GOLD: That's a "yes" or "no."
9 A. That's actually "I don't know,"
10 without checking detailed records. I don't know.
11 Q. In other words, records in your
12 file?
13 A. That's correct.
14 MR. GARBUS: Will you produce that
15 document if it exists, Mr. Gold?
16 MR. GOLD: No. I believe it is
17 subject to the work product privilege.
18 Q. From whom did you receive this
19 information prior to January 14th?
20 MR. GOLD: That's just a name.
21 A. I actually don't recall a detailed
22 name. It would have been from the development logs
23 or development records as previously discussed.
24 Q. So it was not from someone at the
25 MPAA?
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2 A. No.
3 Q. Did you ever try to contact any of
4 the people whose names are set forth in Exhibits B
5 and C in those development logs?
6 A. No.
7 Q. Did you ever try and determine for
8 yourself what the quality of a DVD is that is being
9 shown after it has had DeCSS applied to it?
10 MR. GOLD: That's a "yes" or a
11 "no."
12 A. Can I ask for a clarification of the
13 question?
14 MR. GOLD: You don't understand
15 the question? Listen to the question.
16 If you don't understand it, just say so.
17 (Record read.)
18 A. I'm sorry. That question doesn't
19 make sense to me.
20 MR. GARBUS: Can I hear the
21 question again?
22 (Record read.)
23 BY MR. GARBUS:
24 Q. Have you ever tried to make a
25 determination as to the quality of a film that is
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2 shown from an original DVD that is now being shown
3 because DeCSS has "broken the code"?
4 MR. GOLD: You can answer that
5 "yes or "no."
6 A. No.
7 Q. Do you know if anyone at the MPAA
8 ever has?
9 MR. GOLD: You can answer.
10 A. I have no knowledge.
11 Q. Do you know if anyone at the seven
12 plaintiffs, other than Time Warner, have?
13 A. I have no knowledge.
14 Q. Have you ever seen any reports from
15 either the MPAA or any of the other seven
16 plaintiffs?
17 MR. GOLD: Yes or no.
18 A. I have no knowledge.
19 Q. Do you know what DVD CCA is?
20 A. Yes.
21 Q. What is that?
22 A. It is the licensing or
23 administration authority for CSS.
24 Q. Who are the organizations, to your
25 knowledge, that are involved with DVD CCA?
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2 A. I don't know the exact corporate
3 entity, corporate structure.
4 Q. Do you know who sits on their board?
5 A. Not in detail, no.
6 Q. Do you know who the head of it is?
7 A. I believe it is John Hoy.
8 Q. Do you know how many employees it
9 has?
10 A. I do not.
11 Q. Do you know where its offices are?
12 A. No, I don't. I think they are in
13 L.A.
14 Q. Prior to the time that the MPAA sent
15 out cease and desist letters, did you have any
16 discussion with them concerning those cease and
17 desist letters?
18 A. With --
19 Q. With the MPAA.
20 A. I did not.
21 Q. Do you know to whom cease and desist
22 letters were sent?
23 A. I do not.
24 Q. Do you know how many cease and
25 desist letters were sent?
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2 A. I do not.
3 Q. Do you know whether the cease and
4 desist letters were sent by the MPAA or the studios
5 themselves?
6 A. I do not, no.
7 Q. Do you know if there was any
8 response to the cease and desist letters?
9 A. I know that some sites went off
10 line.
11 Q. Did you ever see any of the
12 responses, any written responses to any of the
13 request?
14 A. To the MPAA cease and desist
15 letters?
16 Q. Yes.
17 A. I don't believe so.
18 MR. GARBUS: Will you produce
19 those files, Mr. Gold?
20 MR. GOLD: What files?
21 MR. GARBUS: The cease and desist
22 letters, any responses to the cease and
23 desist letters, and any correspondence
24 relating to the cease and desist letters.
25 MR. GOLD: Correspondence between?
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2 MR. GARBUS: Presumably between
3 whoever sent the cease and desist letters
4 and whoever received them.
5 MR. GOLD: Yes to all those
6 questions. We should have them soon.
7 MR. GARBUS: Pardon. In other
8 words, you will produce them?
9 MR. GOLD: You asked me three
10 times and I said "yes" to all three
11 requests, and I think they will be
12 produced real soon.
13 MR. GARBUS: Do you know when?
14 MR. GOLD: I don't know if they
15 have arrived to my office yet, so I
16 can't.
17 BY MR. GARBUS:
18 Q. Do you know who selected which sites
19 to get cease and desist letters?
20 A. No.
21 Q. Do you know whether or not --
22 MR. GOLD: Hold on for a second.
23 (Recess taken.)
24 MR. GARBUS: Read back what I have
25 so far.
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2 (Record read.)
3 BY MR. GARBUS:
4 Q. -- the MPAA has done any
5 investigation or examination into Linux's attempts
6 to build a DVD player?
7 A. Other than what I performed?
8 Q. Yes.
9 A. No.
10 Q. So you have no knowledge one way or
11 the other?
12 A. That's correct.
13 Q. And that would be true if I were to
14 ask that with respect to the seven studios, as
15 well?
16 A. That's correct.
17 Q. And that would be true, to your
18 knowledge, if I asked that with respect to
19 Proskauer, as well?
20 A. Yes.
21 Q. Have you ever had any business
22 relationship with anyone at Linux or any of the
23 open source companies?
24 A. I have not.
25 Q. When for the first time did you use
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2 a Linux system?
3 A. I believe it was August or
4 September.
5 Q. So that was not specifically for the
6 purposes -- had nothing to do, then, with your
7 being retained by the MPAA. That was before that?
8 A. That's correct.
9 Q. Did you have any discussion with the
10 MPAA in November or December concerning Linux's
11 attempted development of a DVD player?
12 MR. GOLD: Answer that "yes" or
13 "no."
14 A. From November to December?
15 Q. Yes.
16 A. Yes.
17 Q. Tell me what that conversation was.
18 MR. GOLD: That is subject to the
19 work product privilege.
20 Q. Who did you have the conversation
21 with?
22 A. Mark Litvack.
23 Q. Who is he?
24 A. He is, I believe, a counsel for the
25 MPAA.
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2 Q. Do you have any notes or memorandum
3 of the various conversations you have had with the
4 various people at the MPAA?
5 A. I believe I have some notes about
6 the conversations I had, yes.
7 Q. Did you ever speak to anybody at the
8 MPAA, other than their counsel?
9 A. I believe, as I indicated earlier
10 this morning, one of the conversations there was, I
11 believe, an additional individual on the phone.
12 Q. Never any independent conversation?
13 A. No independent conversations, that's
14 correct.
15 MR. GARBUS: Off the record.
16 (Discussion off the record.)
17 BY MR. GARBUS:
18 Q. Do you know if the members of MORE
19 supplied the code or the DeCSS to the Livid team
20 working on the development of the Linux DVD player?
21 A. Please clarify what you mean by --
22 Q. DeCSS?
23 A. In what -- it appears in many forms.
24 Q. How many forms does it appear in?
25 A. At least two or three. It appears
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2 as a source as executable.
3 Q. And?
4 A. I am aware they made it available on
5 the Linux forums as executable, as Windows
6 executable.
7 Q. When you say "they made it
8 available," you mean the MORE group?
9 A. Apparently. I mean have no personal
10 knowledge.
11 Q. You saw this from reading the
12 material on the website?
13 A. And the statements of the -- I mean
14 there were some statements in the press, as well by
15 the people purporting to be members of MORE.
16 Q. And the people who purported to be
17 members of MORE claim, as you saw, that they gave
18 the code in executable form to the DVD people to
19 help develop a Linux DVD player; is that right?
20 A. This is what they claimed, yes.
21 Q. Do you know if that is true?
22 A. In my professional opinion --
23 Q. I didn't ask for your opinion. I
24 asked do you know whether or not it is true.
25 MR. GOLD: Whether or not it is
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2 true that what?
3 MR. GARBUS: That MORE supplied
4 the executable code to people working on
5 developing an open source Linux DVD
6 player.
7 A. They did supply it on those
8 development forums.
9 Q. When for the first time did they
10 provide it?
11 A. It was -- if I recall, it was early
12 October of 1999.
13 Q. Is that the same -- you say early
14 October of 1999?
15 A. Yes.
16 Q. You are talking about the first ten
17 days?
18 A. I believe. I have to look at
19 detailed notes.
20 Q. When for the first time, when you
21 say you would have to look at detailed notes, which
22 notes are you talking about?
23 A. The report I discussed earlier where
24 I discuss the results of looking at these 3 inches
25 of paper.
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2 Q. How soon --
3 MR. GOLD: Hold on a second.
4 (Witness consulted with counsel.)
5 Q. So far as you know, is the
6 communication by MORE to the Linux people at the
7 same time that DeCSS was made available, made
8 public?
9 A. It was posted in a public forum.
10 Q. In which forum was it posted for the
11 first time?
12 A. I don't know that offhand.
13 Actually, I don't know the answer to that.
14 Q. Was it the Linux forum?
15 A. I don't know that.
16 Q. So far as you know, the first
17 posting of DeCSS may have been on the Linux forum?
18 A. May have been.
19 Q. Do you have any reason to believe
20 otherwise?
21 A. I don't believe so.
22 Q. What does the term "anonymous
23 source" mean?
24 A. In my experience, it refers to
25 source code whose author deliberately disguises
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2 their identity.
3 Q. To your knowledge, with respect to
4 DeCSS, is there an individual who has said that he
5 is the "anonymous source" for that code?
6 A. No.
7 Q. Have you made any investigation --
8 by "you" I mean the eight movie studios other than
9 Time Warner -- into who posted the anonymous source
10 code?
11 MR. GOLD: I think that is subject
12 to the work product.
13 Q. Did you make any investigation prior
14 to being retained by the MPAA?
15 MR. GOLD: In 1999.
16 A. No. I made no --
17 Q. Did you make any investigation once
18 the MPAA retained you?
19 MR. GOLD: Yes or no?
20 A. No.
21 Q. Do you know if anyone at the MPAA
22 made any investigation?
23 MR. GOLD: Yes or no?
24 A. I have no knowledge.
25 Q. Do you know whether anyone at the
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2 other eight studios, other than Time Warner?
3 A. I have no knowledge.
4 MR. GOLD: Are there eight
5 studios?
6 MR. HART: I think there are eight
7 plaintiffs.
8 MR. GARBUS: Off the record.
9 (Discussion off the record.)
10 BY MR. GARBUS:
11 Q. Do you know how many members of the
12 MPAA there are?
13 A. I do not know that, no.
14 Q. Did you ever see the website on
15 which Frank Stevenson published DeCSS?
16 A. Do you have a name for that?
17 Q. http/crypto.GQNU/
18 A. I don't believe I know that website.
19 Q. Do you know how many universities
20 have received cease and desist letters in this
21 case?
22 A. No knowledge.
23 Q. Do you know how many scientists have
24 received cease and desist letters from the
25 plaintiffs?
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2 A. I have no knowledge.
3 Q. Do you know how many universities or
4 scientists or other institutions posted the DeCSS
5 code prior to January 14th?
6 A. No.
7 Q. Do you know how many now do?
8 A. No.
9 Q. Have you ever had any conversation
10 with anyone at any of the universities that have
11 posted this information on their sites?
12 A. No.
13 Q. Do you recall seeing in the
14 Stevenson affidavit his claim that this was a very
15 weak security system?
16 A. Yes.
17 Q. Do you create security systems?
18 A. I myself do not create the
19 encryption codes, but I do help develop overall
20 security systems.
21 Q. Were you involved in the development
22 of CSS?
23 A. I was not.
24 Q. Now, you said in your affidavit that
25 everyone knew that the breaking of CSS was
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2 inevitable. Do you remember using that word,
3 "inevitable"?
4 A. No, but I will -- if you point it
5 out, I will --
6 Q. Do you agree with that or not?
7 A. Yes.
8 Q. When you say "inevitable," what do
9 you mean by that?
10 A. It is certain to happen.
11 Q. Why?
12 A. Because all security systems have
13 historically proven to inevitably fail.
14 Q. Do you know, let's say with respect
15 to Universal, what their loss is due each year
16 to -- let's use the term -- Hong Kong pirates or
17 Asian copying, actual copying of DVDs?
18 A. I have no knowledge of figures like
19 that.
20 Q. Would your answer be the same if I
21 were to ask you the same question about each of the
22 studios?
23 A. Yes.
24 Q. With respect to the losses that
25 Universal suffers as a result of copying or
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2 pirating, do you know the percentage of loss that
3 comes from rippers or people who just copy the DVDs
4 in Hong Kong or wherever? In other words, do you
5 know the breakdown?
6 A. I do not.
7 Q. And your answer would be the same
8 with respect to each of the other companies?
9 A. Yes.
10 Q. And with respect to the MPAA?
11 A. No.
12 Q. Various of the plaintiffs in this
13 case earn search engines; is that right?
14 A. Various of the plaintiffs in this
15 case own --
16 Q. Disney owns Infoseek; is that right?
17 A. I have no detailed knowledge, but I
18 am aware they own websites and web properties.
19 Q. Do the other plaintiffs also own
20 websites and web properties?
21 A. I presume they would.
22 Q. With respect to the Disney site, do
23 you know whether the Disney site links to any DeCSS
24 postings?
25 A. I have no knowledge.
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2 Q. To your knowledge, has anyone at the
3 MPAA tried to determine whether the Disney site
4 links to specific DeCSS postings?
5 A. I have no knowledge.
6 Q. Do you know what strings are?
7 A. Strings?
8 Q. Yes.
9 A. In the computer sense?
10 Q. Yes.
11 A. I believe so, yes.
12 Q. Tell me what they are.
13 A. Strings is typically a term used to
14 define a sequence of text characters.
15 Q. Do you know whether the Disney
16 search engine, for example, will do a search if you
17 put in DeCSS?
18 A. If Disney has a search engine, which
19 I will believe is true, I would presume it would.
20 Q. And do you know how many sites then
21 come up under the Disney search?
22 A. I have no knowledge.
23 Q. Is your answer "no knowledge," would
24 that be true with respect to any of the other
25 plaintiffs in this case?
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2 A. Yes, that's correct.
3 Q. Do you know if the Disney search
4 engine will take you to CSS.auth?
5 A. I have no knowledge.
6 Q. CSS.cat?
7 A. I have no knowledge.
8 Q. Do you have any knowledge of how
9 many people have downloaded or taken off --
10 (Telephone interruption.)
11 BY MR. GARBUS:
12 Q. -- downloaded DeCSS?
13 MR. GOLD: I object to the form.
14 MR. GARBUS: Pardon me?
15 MR. GOLD: I object to the form of
16 the question.
17 Q. Do you know how many people have
18 read, viewed or seen, as of today, the DeCSS code?
19 MR. GOLD: You mean how many
20 people in the country have?
21 MR. GARBUS: Yes.
22 A. I mean I have no knowledge.
23 Q. Is there any way of determining
24 that?
25 A. Not effectively or not completely.
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2 RL Q. How would you start?
3 DI MR. GOLD: I am going to object to
4 this, because I have given you a lot of
5 leeway all through the day, but I notice
6 this afternoon you are really picking this
7 up.
8 Mr. Schumann has not been designated
9 as a witness with respect to this area, but
10 the other witness that you are deposing
11 this week has been designated in this area.
12 MR. GARBUS: Which area are you
13 talking about?
14 MR. GOLD: The business of finding
15 out of who is or is not doing something,
16 as spelled out in our Complaints.
17 Who is doing relatively linking,
18 relatively posting, what efforts have
19 been made to stop proliferation to stop
20 DVD piracy. That's another witness
21 that has been designated for that.
22 MR. GARBUS: Can I hear the last
23 question and answer, please.
24 (Record read.)
25 BY MR. GARBUS:
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2 Q. Mr. Stevenson says, "To my
3 knowledge, DeCSS and similar CSS descrambling
4 programs have been available to any interested
5 person with a working knowledge of the internet and
6 web and how to utilize search engines since at
7 least mid-October 1999."
8 Is that true?
9 A. That sounds likely.
10 Q. And then he says that "I think a
11 paper about the efforts of the Livid forum and
12 other related and unrelated individuals in
13 connection with CSS and DVDs will provide extremely
14 useful information for a wide variety of
15 individuals, scientists, and academics, including
16 cryptologists and persons interested in the DVD
17 media."
18 Do you agree with that statement?
19 A. Is that a statement when he refers
20 to his paper?
21 Q. No. He is talking about why he
22 should do his paper. Take a look at the first two
23 sentences.
24 A. I'm sorry.
25 Q. Let me read the first two sentences.
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2 Here is what he says in Paragraph 14.
3 "In addition to the CCS-related
4 crypto analysis and other informational papers that
5 I have already published on the internet, I plan to
6 publish a paper concerning the cracking of CSS and
7 the development of video and DVD playback capacity
8 for the Linux machines in an academic and/or
9 industry-related journal."
10 Then he says, "I think a paper about
11 the efforts of the Livid forum and other related
12 and unrelated individuals in connection with CSS
13 and DVDs will provide extremely useful information
14 for a wide variety of individuals, scientists, and
15 academists, including cryptologists and persons
16 interested in the DVD media."
17 Do you agree with that?
18 A. I presume that paper would be of
19 interest, yes.
20 Q. Why would it be of interest?
21 A. It's clearly an area that is an area
22 of, I guess, hot development, if you will, or
23 interesting development and is, at this point,
24 obviously gotten attention.
25 Q. When you say "hot," what do you mean
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2 by "hot"?
3 A. Hot as an area of development
4 activity.
5 Q. Be more specific. Can you?
6 A. By "hot," I referred to by having
7 public focus on it, if you will.
8 Q. And it being significant in the area
9 of cryptology?
10 A. The technical analysis of how CSS
11 works and its deficiencies is clearly an area of
12 interest to cryptologists.
13 Q. Why?
14 A. Because that's how cryptologists and
15 the security field learn, is from the mistakes of
16 others.
17 Q. Can you tell me something more about
18 that?
19 MR. GOLD: I object to the form.
20 A. It is a well-known -- fact isn't the
21 right word.
22 It is a well-known saying or
23 axiom -- probably not the right word either -- in
24 the security industry that cryptographic algorithms
25 that are not publicly reviewed have historically
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2 proven to be weak.
3 Q. Why is that?
4 A. Because there is no opportunity for
5 a larger community to review and analyze those
6 algorithms.
7 MR. GARBUS: Let's take a
8 two-minute break.
9 (Recess taken.)
10 BY MR. GARBUS:
11 Q. What is the value of having a larger
12 community review codes for encryption materials?
13 A. In the encryption field, you get a
14 larger group of people who can review the
15 algorithms and the mechanisms employed.
16 Q. Do you read academic journals
17 relating to cryptography?
18 A. Yes.
19 Q. What academic journals do you mean?
20 A. I read some of the ACM journals on
21 communications and the occasional IEEE journal.
22 Q. Tell me something about the ACM
23 journal. What is that?
24 A. They tend to be very -- they are
25 very scholarly-oriented journals, typically dealing
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2 with theoretical problems or more theoretical
3 problems.
4 Q. When you say "scholarly," do you
5 mean this goes to primarily universities?
6 A. I think they are read outside the
7 universities, but they are written in a university
8 or a -- the papers are typically written in a
9 university or scholarly fashion.
10 Q. By university people?
11 A. Sometimes.
12 Q. When you say they go outside the
13 universities, you mean they are in the universities
14 and then outside or just outside the universities?
15 A. These journals have wide
16 circulations.
17 Q. And the ACM is a respected journal?
18 The most respected in its field?
19 A. I believe it has many journals.
20 Q. Can you tell me what some of those
21 journals are?
22 A. I don't know. There are many on
23 different topics, on multi-process source, on
24 communications, on software development, and a slew
25 of others.
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2 Q. How long has ACM been around?
3 A. I don't know exactly. It's
4 definitely one of the most respected associations
5 in the computer field.
6 Q. Does the name Barbara Simons mean
7 anything to you?
8 A. Only in relation to her affidavit.
9 Q. Had you ever heard of her before?
10 A. Not that struck me in particular.
11 Q. Getting back to Stevenson --
12 Have you seen Barbara Simmons
13 statement that they intend to publish an article on
14 DeCSS and --
15 A. I'm sorry. Whose statement?
16 Q. Did you see Barbara. I'm sorry I
17 have the name wrong.
18 Did you see Frank Stevenson's
19 statement that he intends to public an article?
20 A. If it's in his affidavit, then yes,
21 I saw that statement.
22 Q. And that any article analyzing the
23 DeCSS source code would in necessity have to
24 include the code itself?
25 A. It would certainly include portions
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2 of the code.
3 Q. But you could see the value of
4 including the entire code?
5 A. Not necessarily.
6 Q. In your judgment, in order to make
7 the article meaningful, would you tell someone like
8 Stevenson you can publish 50 percent of the code?
9 20 percent of the code?
10 A. It would be simplistic to put it in
11 such a form.
12 Q. Can you give me a further response?
13 MR. GOLD: Objection to the form.
14 Q. It would be inappropriate to tell
15 him. Is that what you are saying, that you can use
16 X percent or Y percent?
17 A. Yes.
18 Q. And it would be inappropriate to
19 tell Barbara Simons or the ACM that you should
20 either take 50 percent or 20 percent or 80 percent?
21 It would be their judgment as to what is necessary
22 for the article; is that right?
23 A. That would appear to be reasonable,
24 in my understanding.
25 RL Q. You don't presume to know more than
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2 Mr. Stevenson about cryptography and what ought to
3 be in articles that are written?
4 MR. GOLD: Objection to the form
5 of the question. Read the question back,
6 please.
7 (Record read.)
8 DI MR. GOLD: I direct the witness not
9 to answer it. I find it offensive. If you
10 want to take me up on it, go ahead.
11 Q. He says that DVDs have been playable
12 on Linux machines since October 1999.
13 Do you know whether that is true or
14 not?
15 A. The development logs talked about
16 people playing movies even prior to that date, I
17 believe.
18 Q. Before DeCSS?
19 A. That's correct.
20 Q. Do you know what the relationship is
21 of DeCSS to the possibility of playing DVDs more
22 effectively on Linux machines?
23 MR. GOLD: Read that back.
24 (Record read.)
25 MR. GOLD: Is that a question that
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2 is understandable to you?
3 THE WITNESS: I don't understand
4 exactly.
5 Q. Do you know what a DOD's stripper
6 is?
7 A. DOD's Ripper?
8 Q. Yes.
9 MR. GOLD: Which one? Ripper or
10 stripper?
11 MR. GARBUS: Ripper.
12 A. You are referring to the program
13 called DOD's Ripper?
14 Q. Yes.
15 A. I have heard of that program, yes.
16 Q. That predates DeCSS?
17 A. I believe it did, yes.
18 Q. By how long?
19 A. Perhaps several months, if memory
20 recalls.
21 Q. So the DOD's Ripper was the first
22 utility that permitted the decryption of CSS?
23 A. I don't know if that is the way that
24 functioned.
25 Q. You don't know one way or the other?
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2 A. (No response.)
3 Q. Do you know what I mean when I use
4 the word "utility"?
5 A. I understand.
6 Q. What do you understand it to mean?
7 A. Utility is a tool.
8 Q. Do you know what a Power Ripper is?
9 A. It is another tool.
10 Q. What does that enable the user to do
11 relative to DVDs?
12 A. To my understanding, it allowed the
13 storing of a stream being played back using, I
14 believe it was, a particular DVD player, software.
15 Q. When was Power Ripper first made
16 available?
17 A. I believe it was also several months
18 prior.
19 Q. To DeCSS?
20 A. Yes.
21 Q. Mr. Stevenson further says, and I
22 think you have agreed to this already, "To date --"
23 and the date of his affidavit is April 27th
24 "-- although as explained below, the technology
25 exists to make either expensive or poor quality
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2 copies using DeCSS, I see no direct evidence
3 indicating any commercial piracy using that
4 utility."
5 Do you agree with that?
6 MR. GOLD: That he hasn't seen
7 any?
8 Q. Do you agree with that statement?
9 MR. GOLD: The statement says what
10 this man has or hasn't seen.
11 Q. Have you seen any direct evidence
12 indicating any commercial piracy?
13 A. I'm sorry. I lost what the question
14 was. Are you asking me to comment on what Frank
15 Stevenson knows or does not know?
16 MR. GOLD: I didn't understand
17 that to be his question, so I guess -- it
18 sounded like it, but I don't think that
19 was his question.
20 MR. GARBUS: We will mark as
21 Exhibit 3 the Declaration of Matt
22 Pavlovich. We will mark as 4 the
23 Declaration of Chris DiBona. We will
24 mark as Exhibit 5 the Declaration of
25 Frank Stevenson, and we will mark as 6
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2 the Declaration of David Wagner, and 7
3 will be Gilmore.
4 (Defendants' Exhibit 3, Declaration
5 of Matt Pavlovich, marked for
6 identification, as of this date.)
7 (Defendants' Exhibit 4, Declaration
8 of Chris DiBona, marked for identification,
9 as of this date.)
10 (Defendants' Exhibit 5, Declaration
11 of Frank Stevenson, marked for
12 identification, as of this date.)
13 (Defendants' Exhibit 6, Declaration
14 of David Wagner, marked for identification,
15 as of this date.)
16 (Defendants' Exhibit 7, Declaration
17 of Gilmore, marked for identification, as
18 of this date.)
19 MR. GARBUS: Please mark this as
20 Exhibit 8.
21 (Defendants' Exhibit 8, Declaration
22 of Bruce Schneier, marked for
23 identification, as of this date.)
24 BY MR. GARBUS:
25 Q. You previously talked about the
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2 value to the academic community of information
3 about encryption or the way CSS works; is that
4 right?
5 A. I think I talked about the value of
6 encryption algorithms and how they work.
7 Q. What did you learn from seeing
8 DeCSS, if anything?
9 A. From DeCSS, the executable, I
10 learned nothing more than I could make an
11 unencrypted copy.
12 Q. Did it teach you anything that might
13 help you in the security business?
14 MR. GOLD: Did what teach him?
15 MR. GARBUS: Seeing the way in
16 which DeCSS was arrived at or how CSS was
17 structured.
18 A. Not to me personally, no. This is
19 the source code of DeCSS?
20 Q. Or the executable code.
21 A. No. Nothing in particular.
22 Q. I address your attention to
23 Paragraphs 18 and 19 of the DiBona affidavit.
24 A. Okay.
25 Q. Did you ever do what he has
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2 described there?
3 A. Yes, I have.
4 Q. Does it work in the way that he
5 described it there?
6 A. Yes, it does.
7 Q. So that means, does it not, that
8 anybody who is watching a DVD with a computer can
9 decide to put the material from the DVD onto his
10 computer unscrambled?
11 A. The scrambled material?
12 Q. Yes.
13 A. Using that mechanism?
14 Q. Yes.
15 A. Yes.
16 Q. Once the computer has it, are there
17 a variety of ways to unscramble it?
18 A. Can you hazard in what sense?
19 Q. Does "XING" mean anything to you?
20 A. I believe it's a -- XING was a
21 manufacturer of computer software.
22 Q. Do you know the relationship between
23 XING and the showing of scrambled DVDs?
24 A. As different from regular DVDs?
25 Q. Yes.
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2 A. There is no difference.
3 MR. GARBUS: Can I hear the last
4 question?
5 (Record read.)
6 BY MR. GARBUS:
7 Q. Can you use XING to play the
8 scrambled files off a hard disk?
9 A. I have no knowledge.
10 Q. Have you ever tried it?
11 A. No.
12 Q. Do you know whether you can use
13 XING, therefore, to show a DVD that has been put
14 onto the hard disk?
15 A. A scrambled DVD?
16 Q. Yes.
17 A. I have no firsthand knowledge.
18 Q. When you say you have no firsthand
19 knowledge, did you ever have any discussion with
20 anyone at the MPAA about it?
21 A. I have not.
22 Q. Do you have any secondhand
23 knowledge?
24 A. I have my technical understanding of
25 the structures in question.
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2 Q. What is your understanding?
3 A. That a DVD disk would be required to
4 play the scrambled content.
5 Q. I address your attention to
6 Paragraph 21, DiBona, which you have in front of
7 you. We just looked at 18 and 19. The last
8 sentence says --
9 MR. GOLD: Next-to-last paragraph?
10 MR. GARBUS: Last paragraph, last
11 sentence.
12 Q. It says, "It may even be possible to
13 make a CSS-equipped DVD player run the encrypted
14 VOB files directly off a hard drive without the
15 benefit of any assisted software."
16 A. You mean -- I guess --
17 I don't know what he means by --
18 this is not definitive enough for me to comment on.
19 Q. Look at the beginning of the
20 paragraph and see if that helps you with your
21 understanding of the third sentence.
22 A. A legal CSS-equipped DVD player, to
23 my knowledge, would not play crypted VOB files
24 without the existence of the disk, of a source
25 disk, DVD.
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2 Q. CSS-auth is a way to decrypt DVDs;
3 is that right?
4 A. Not to my knowledge.
5 Q. What is it used for?
6 A. It is a mechanism for unlocking the
7 DVD drive.
8 Q. How does it do that?
9 A. Through a sequence of commands to
10 the drive firmware.
11 Q. What about CSS-cat?
12 MR. GOLD: What is your question?
13 Q. How does that function?
14 A. I have no knowledge of how CSS-cat
15 works.
16 Q. Do you know what an ATI capture card
17 is?
18 A. I do not.
19 Q. You have never heard that term
20 before?
21 A. I have heard of "ATI" and I have
22 heard the term "capture card," but never together.
23 Q. What do the words "capture card"
24 mean?
25 A. Typically used to describe a board
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2 that captures video or audio.
3 Q. Who is ATI?
4 A. ATI is a manufacturer of computer
5 equipment.
6 Q. Does ATI make a capture card?
7 A. I have no detailed knowledge of
8 that.
9 Q. Do you know whether or not capture
10 cards could be used to copy DVDs?
11 A. To copy DVDs?
12 Q. Yes.
13 A. In the sense of DeCSS?
14 Q. Yes.
15 A. No.
16 Q. No knowledge?
17 A. No, they could not be used.
18 Q. Could they do it in a different way?
19 A. Potentially, yes.
20 Q. How?
21 A. They could capture the analog
22 output.
23 Q. How do they do that?
24 A. I presume they would take the input
25 from a video, from a monitor, or from a TV.
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2 Q. Do you know whether ATI capture
3 cards or capture cards have been used to watch
4 DVDs?
5 A. To watch DVDs?
6 Q. Yes.
7 A. I have no knowledge of the cards, so
8 I have no idea of how they would be used.
9 Q. Do you know who else makes capture
10 cards besides ATI?
11 A. I have no detailed knowledge of that
12 market.
13 Q. I direct your attention to Paragraph
14 25 of Frank Stevenson's affidavit, line 2 where he
15 says, "No readily available removable home computer
16 storage medium can store the amount of data
17 represented by a full-length feature film."
18 MR. GOLD: You mean line 3,
19 sentence 2?
20 MR. GARBUS: Yes.
21 Q. Do you agree with that?
22 A. No.
23 Q. Tell me what home storage medium is
24 available?
25 A. I believe and have seen in the past
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2 that there are a variety of tape drives.
3 Q. For example?
4 A. I believe my affidavit describes one
5 and I would have to look for detailed names of
6 others.
7 Q. Are we talking about DAT tapes?
8 A. I believe DAT tapes are fairly
9 expensive.
10 Q. Were you just referring to DAT
11 tapes?
12 A. I believe there are other
13 technologies that are cheaper.
14 Q. For example?
15 A. Again, I would have to look in
16 detail.
17 Q. Have you ever seen a movie played
18 from a DAT tape?
19 A. Have I ever seen a movie played from
20 a DAT tape?
21 Q. Yes.
22 A. No, I have not.
23 Q. Do you know if that has been done?
24 A. I have no knowledge of that.
25 Q. Is there any personal computer in
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2 the United States or elsewhere that is presently on
3 sale with a drive that can write to a DVD?
4 A. I'm sure they exist.
5 Q. Name one.
6 A. I know that there are people who
7 write -- who make DVD offering systems that sell
8 them on PC's with DVD-R drives already inserted.
9 Q. Do you know of any of them?
10 A. I don't off the top of my head.
11 Q. Do you know what DVD-RW is?
12 A. It is a DVD writable disk.
13 Q. Can a DVD writable disk be played on
14 a DVD player?
15 A. On some.
16 Q. Which ones?
17 A. I believe the newer DVD drives will
18 play those disks.
19 Q. Take a look at Paragraph 27.
20 MR. GOLD: Still on Mr. Stevenson?
21 MR. GARBUS: Yes.
22 Q. The second sentence. A movie
23 consists of how many gigabytes of data?
24 A. It depends on the movie.
25 Q. Give me the variations.
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2 A. It varies widely depending on the
3 compression algorithm of the content, the length of
4 the movie, the additional items on the disk.
5 Q. Assuming that a movie consists of 4
6 gigabytes of data, would it take more than 200
7 hours to transfer a movie via standard 56K modem
8 connection to the internet?
9 A. I haven't done the math.
10 Q. Do you know if anybody at the MPAA
11 has?
12 A. I do not, no. I have no knowledge.
13 Q. Have you ever seen any of the math
14 done by anybody at the MPAA or anyone of the other
15 seven studios?
16 A. I have not.
17 Q. Do you know if they ever did the
18 math?
19 A. I have no knowledge.
20 Q. Has anyone ever told you that they
21 did the math?
22 A. I have no knowledge.
23 Q. We are talking now both the studios
24 and the MPAA?
25 A. That's correct. I have no
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2 knowledge.
3 Q. Have you ever seen a report -- can
4 you do that math now as you sit here?
5 A. I could.
6 Q. Please do it.
7 A. Do you have a calculator? Actually,
8 I have one here.
9 (Witness complied with request.)
10 A. How large did you say the file was?
11 MR. HERNSTADT: 4 gigabytes,
12 assume.
13 A. Okay.
14 Q. What is your answer?
15 A. Approximately 160 hours.
16 Q. Can you tell us how you arrived at
17 that computation?
18 A. I took 4 gigabytes, multiplied it by
19 8 to get gigabits, divided that by 56,000 bits per
20 second. This is not completely precise, but close
21 enough, I assume. I Divided by 56,000 bits per
22 second, giving me the total number of seconds,
23 divided that by 3,600, which is the number of
24 seconds in an hour, to arrive at approximately 160
25 hours.
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2 Q. If it were, let's say, a 6 gigabyte
3 movie, can you tell me how long that would take?
4 A. About one and a half times 158
5 hours.
6 Q. That would be --
7 A. 225, I guess.
8 Q. Do you know the average number on
9 most movies, DVD movies?
10 A. They are, I believe, typically
11 between 4 and 6 gigabytes.
12 Q. Are there any that are 7?
13 A. I'm sure there are some.
14 Q. Can you give me a rough computation
15 of how long it would take with a 7 gigabyte of
16 data?
17 A. 1.75 times 158. So, 280 hours,
18 approximately.
19 Q. Directing your attention to
20 Paragraph 28 of the Stevenson affidavit, I will ask
21 you whether it is so or not.
22 "The tools to copy DVDs are and have
23 been available since prior to the posting of
24 DeCSS." Is that correct?
25 A. In what sense of copy?
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2 Q. Copy in the sense of copying so that
3 people can look at the DVDs. Either the Hong Kong
4 type or DOD's Ripper or some of the other things we
5 have mentioned.
6 A. There are tools that have existed,
7 but they have very different end results.
8 Q. The next sentence, "There are tools
9 that compress the DVD to the VCD format, making it
10 possible to fit a much reduced quality version of
11 the movie onto two CD roms."
12 Isn't that so?
13 A. Yes, a portion of the content.
14 Q. These disks can be made VCD
15 compatible and playback may be possible on a VCD or
16 even DVD players.
17 A. I have no personal knowledge of
18 having seen that.
19 Q. Do you know how long it takes to do
20 that?
21 A. I have no knowledge of how long.
22 Q. Have you ever heard the term "video
23 capture card"?
24 A. I have.
25 Q. That's the same thing as a capture
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2 card?
3 A. I presume.
4 Q. Have you ever seen a DVD compressed
5 to VCD or DivX?
6 A. I have not.
7 Q. Do you have any idea of the quality
8 of it?
9 A. I do not.
10 Q. Has anyone at the MPAA ever
11 discussed that with you?
12 A. No.
13 Q. When will the bandwidth backbone be
14 in place to permit the ordinary consumer to have a
15 T3 line?
16 A. In many locations it already exists.
17 Q. Where is that?
18 A. Probably every university campus in
19 the United States and in many foreign countries.
20 Q. How many private homes?
21 MR. GOLD: Did you finish your
22 answer to the question?
23 A. And in many corporations, as well.
24 Q. Any private consumers?
25 A. I imagine there are a few.
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2 Q. What is the cost of it right now?
3 A. It is very expensive.
4 Q. Tell me what that is, to run a T3
5 line.
6 A. I imagine it's thousands of dollars
7 a month.
8 Q. Do you know who runs T3 lines? What
9 company does that?
10 A. I'm sure there are a variety of
11 them.
12 Q. Other than corporations, do you know
13 any individual consumers that have T3 lines?
14 A. I'm not personally aware of any, no.
15 Q. We used the term before that the
16 security system of CSS is a weak one. Can you tell
17 me what that word means in reference to this
18 system?
19 A. Who had used that term?
20 MR. GOLD: I don't understand the
21 question.
22 MR. GARBUS: Mr. Stevenson.
23 MR. GOLD: Do you want to read
24 that from the quote that you got that
25 from?
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2 Q. In your opinion, is the CSS a weak
3 system?
4 A. In what sense?
5 Q. Breakable. Easily breakable.
6 A. To an average computer user? To an
7 average user?
8 Q. You tell me. You break it down. In
9 other words, to someone who is, let's say,
10 knowledgeable in cryptography.
11 A. To a small set of, I believe, highly
12 experienced cryptologists, in hindsight, it is not
13 the strongest algorithm.
14 Q. When you say it is not the
15 strongest, don't you mean it is very weak?
16 A. Relative to what?
17 Q. You said, strongest relative to
18 what.
19 MR. GOLD: What is your question
20 now?
21 Q. Does the name Jon Johansen mean
22 anything to you?
23 A. Yes, it does.
24 Q. Who is he?
25 A. He is, apparently, a teenager in
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2 Norway.
3 Q. Do you know anything about his
4 educational background?
5 A. I have no specific knowledge.
6 Q. Do you know whether he ever took a
7 computer course in his life?
8 A. I have no idea.
9 Q. Do you have any reason to believe
10 that he has any particular technical skill?
11 A. I have no knowledge one way or
12 another.
13 Q. Do you know any other individuals in
14 MORE?
15 A. I am not aware of any other
16 individuals.
17 Q. Do you know the process by which
18 Johansen and the other MORE people discussed CSS
19 and the development of DeCSS?
20 MR. GOLD: What do you mean by
21 "process" or "discussed"? Do you mean by
22 e-mail or letter? You mean how they
23 communicated their knowledge to each
24 other?
25 MR. GARBUS: Yes.
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2 A. It is my understanding, from items I
3 have seen attributed to Jon Johansen, that they, I
4 guess, used e-mail and I don't know what else, but
5 I assume e-mail.
6 Q. Did you ever see any of that e-mail?
7 A. I did not.
8 Q. Do you know if any of that e-mail
9 refers to the Linux system?
10 A. I have no knowledge.
11 Q. Do you know of any relationship
12 between MORE, Johansen and the Livid system or the
13 Livid Group?
14 MR. GOLD: Do you mean do they
15 know each other, the people in these
16 groups?
17 MR. GARBUS: I am asking whether
18 he knows.
19 MR. GOLD: Whether he knows that
20 they knew each other?
21 MR. GARBUS: And were working
22 together.
23 A. And were working together?
24 Q. Let's start with know each other.
25 A. Know each other in what sense?
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2 Q. Talking to each other on e-mail.
3 A. I believe there was some amount of
4 discussion on e-mail with some members of the Livid
5 Group.
6 Q. With Johansen and the other members
7 of MORE?
8 A. In the materials I reviewed. No.
9 Just Johansen.
10 Q. This was before he broke the DeCSS,
11 the news of DeCSS, or after?
12 A. I believe it was right around the
13 period of the actual delivery of DeCSS.
14 Q. So you don't know whether or not the
15 Livid people knew about DeCSS before the general
16 public did or if they learned about it at the same
17 time?
18 A. I know that one member, at least
19 according to development logs, one member of the
20 Livid Group had access to the DeCSS prior to the
21 general release.
22 Q. Were there any Livid members who
23 were also members of MORE?
24 A. Not to my knowledge.
25 Q. How long prior to the release of the
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2 information to the general public did the Livid
3 Group know about it?
4 A. What do you mean by Livid Group?
5 Q. You mentioned a member.
6 A. Yes. A single individual had
7 access. I don't recall. I believe it was several
8 weeks prior to the general public.
9 Q. Do you know where that single
10 individual lived?
11 A. Apparently, he lived in England.
12 Q. Was there also a member of the MORE
13 group who lived in Holland who was a member of the
14 Livid Group?
15 A. I have no knowledge of that.
16 Q. The person who lived in England who
17 was a member of the Livid Group, do you know what
18 work he did with Johansen on developing DVD CSS?
19 A. I don't believe he did any work with
20 Johansen.
21 Q. How did he come to know about the
22 DeCSS before it was released to the public?
23 A. It was my understanding, based on
24 the logs that Johansen sent the materials to this
25 member, I believe, unsolicited.
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2 Q. When Johansen sent it, is it your
3 understanding that he knew that this person was a
4 member of the Livid Group?
5 A. Yes, I believe he knew that.
6 Q. Have you seen the correspondence
7 between Johansen and this person in England?
8 A. Only the public documents in the
9 development.
10 Q. You have no particular understanding
11 as to why, from the reading of any documents that
12 you have done, why Johansen sent it three weeks
13 before to a Livid member?
14 A. I have no understanding of why and
15 only some discussions as to that would point to why
16 not.
17 Q. Why not what?
18 A. That would seem to indicate Johansen
19 did not particularly like the Linux Group.
20 Q. What is the basis for that view?
21 A. Public statements by John Johansen
22 in the Linux development logs.
23 Q. When you say the "Linux development
24 logs," we are talking about excerpts of which you
25 have back in your office that are about 3 and a
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2 half inches?
3 A. Yes. Some excerpts of which are in
4 my affidavit.
5 MR. GOLD: Let's take a short
6 break.
7 (Recess taken.)
8 BY MR. GARBUS:
9 Q. Did you ever try to transmit on the
10 internet VCDs?
11 A. Have I ever tried?
12 Q. Yes.
13 A. No.
14 Q. Have you ever tried to transmit on
15 the internet DivX?
16 A. DivX, the program? Can you give me
17 more detail?
18 Q. The movies.
19 MR. GOLD: DivX, the movie?
20 A. A movie compressed with DivX?
21 Q. Yes.
22 A. No.
23 Q. Have you ever tried to transmit on
24 the internet a DVD?
25 A. No.
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2 Q. Do you know anyone who has ever
3 tried to transmit any of those, VCDs, DivX, or
4 DVDs, including downloading?
5 A. Do I know them personally?
6 Q. Yes.
7 A. Not personally.
8 Q. Do you know if it has ever been
9 done?
10 A. I presume it has.
11 Q. When you say you presume, have you
12 ever seen manifestations of it?
13 A. I have never personally seen
14 manifestations of it, but I have seen it talked
15 about on a variety of sites.
16 Q. You have never seen it done itself.
17 You have just seen people talking about doing it or
18 having it done; is that right?
19 A. That's correct.
20 Q. Has anyone at the MPAA ever told you
21 it has ever been done?
22 A. No.
23 Q. Before you were talking about the
24 advantage of distributing information about codes.
25 What does the term "proprietary algorithm" mean?
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2 A. What does the term "proprietary
3 algorithm" mean?
4 Q. Right.
5 A. I guess an algorithm owned, I guess
6 controlled by a personal entity, a noncontrolled
7 algorithm.
8 Q. Miss Simon, Barbara Simon, uses the
9 term that "CSS is amazingly weak."
10 Now, tell me on a scale of 1 to 10,
11 where you would put the strength of CSS as a
12 security code.
13 MR. GOLD: I object to the
14 question. I don't think that it is
15 answerable, unless you want to give about
16 ten minutes of definition.
17 Q. You said that it is a strong code;
18 is that right?
19 A. Compared to some other things, yes.
20 Q. Compared to what?
21 A. Compared to a variety of simpler
22 scrambling algorithms.
23 Q. For example?
24 A. For example, I mean there is a long
25 history of much weaker protection mechanisms used
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2 both commercially and in academia.
3 Q. Ms. Simon says CSS uses only a
4 40-bit key, a length known to be breakable in a few
5 minutes. Do you know whether that is true or
6 false?
7 A. That depends entirely on the
8 algorithm.
9 Q. Do you know how long it took
10 Johansen to break the code?
11 A. I have no knowledge that Johansen
12 broke the code.
13 Q. Do you know how long it took the
14 MORE group to come up with DeCSS?
15 A. I have no knowledge.
16 Q. Do you know if it took them ten
17 minutes? Three days?
18 A. I have no knowledge.
19 Q. So you have no knowledge whether it
20 took a few minutes or a few days, or a few hours?
21 A. It may have taken three years. I
22 have no --
23 Q. To your knowledge, does anyone at
24 the MPAA know how long it took to come up with
25 DeCSS?
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2 A. I have no knowledge.
3 Q. Do you know if there are any files
4 at the MPAA that has that information?
5 A. I have no knowledge.
6 RQ MR. GARBUS: Mr. Gold, there have
7 been a number of questions that I have
8 asked about information at the MPAA or any
9 of the other plaintiffs, other than Time
10 Warner, where he says he has no knowledge.
11 I would ask you to produce any files and
12 documents from either the plaintiffs, other
13 than Time Warner or the MPAA, that relate
14 to those inquiries.
15 MR. GOLD: I think that you said
16 you would have a list for me by the end
17 of the day today or this evening.
18 MR. HERNSTADT: Of?
19 MR. GOLD: Of all the documents
20 that you have asked for that I have taken
21 under advisement.
22 MR. HERNSTADT: Sometime today,
23 after you leave.
24 MR. GARBUS: There have been many
25 instances where I have just asked him
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2 questions and he said, "I don't know if
3 there is a file," I haven't gone through
4 the rhythm each time of saying, "Will you
5 produce it?" and you say that you will
6 take it under advisement.
7 MR. GOLD: You asked me if there
8 is a file. Put that on the list. In
9 other words, put on the list all the
10 things that he asked is there a file on
11 X, Y, Z at MPAA, tell me what files you
12 have asked for, and I will try by
13 tomorrow late and get you a response. If
14 I have it, I will produce it.
15 MR. HERNSTADT: Off the record.
16 (Discussion off the record.)
17 BY MR. GARBUS:
18 Q. Did you ever see Johansen's
19 statement as follows: "The end of September last
20 year I got in contact with a German computer
21 programmer and a Dutch computer programmer and we
22 decided it was time to add DVD support to Linux"?
23 Did you ever see that statement?
24 A. It is, I believe in his affidavit he
25 makes that statement.
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2 MR. GOLD: Who is "his"?
3 A. This is Johansen.
4 Q. Yes. So that you understand,
5 Johansen is taking the position that he did this in
6 order to add DVD support to --
7 MR. GOLD: You are saying in the
8 Johansen Declaration?
9 Q. Have you ever seen a statement made
10 by Johansen that he decided that it was time to add
11 DVD support to Linux, that was why DeCSS was done
12 and why it was sent to Linux?
13 MR. GOLD: The question is whether
14 you have ever seen that statement
15 attributing that remark to Johansen.
16 A. In the Declaration I saw that
17 statement. Johansen. Is this in Johansen's
18 Declaration?
19 Q. No. You are talking about Chris
20 DiBona. You have never seen the Johansen
21 Declaration. I think you made a mistake.
22 A. That's why I asked. You are
23 referring to the interview in the DiBona
24 Declaration?
25 Q. Yes. And you saw that?
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2 A. And I saw that interview, yes.
3 Q. Do you have any reason to believe
4 that that is not an accurate interview of Johansen?
5 A. It does not appear to me to
6 correlate with other statements attributed to
7 Johansen in the DVD development logs.
8 Q. Do you see where that statement
9 comes from? Do you see the source of it? CNN.
10 A. Yes.
11 Q. Do you have any reason to believe
12 that CNN was published in an interview that was in
13 any way false?
14 MR. GOLD: Are you asking if he
15 has any reason to believe one way or the
16 other?
17 MR. GARBUS: Yes.
18 A. I have no reason to believe one way
19 or the other.
20 Q. Have you seen any other statements
21 that Johansen has made, other than in a CNN
22 interview where he talks about DeCSS being created
23 specifically for the purpose of adding DVD support
24 to Linux?
25 A. Nothing specific I can recall.
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2 Q. You didn't see that in any of the 3
3 and a half inches of material that you had?
4 A. No.
5 Q. What is your best recollection of
6 the date that you got the downloads from MPAA?
7 A. I received the materials in late
8 November.
9 Q. Have you seen any public statements
10 made by Johansen since then?
11 A. I have --
12 MR. GOLD: You are implying that
13 there was some public statement made by
14 Johansen. The witness only said he read
15 something in CNN and some CNN person
16 apparently said something about what
17 Johansen said.
18 MR. GARBUS: No.
19 MR. GOLD: What no?
20 MR. GARBUS: It is an interview.
21 So, it is allegedly what Johansen said.
22 MR. GOLD: Well, CNN says it is
23 what Johansen said. That's all he said.
24 BY MR. GARBUS:
25 Q. Have you seen in any media since
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2 December 1, 1999, any statements allegedly made by
3 Johansen to the press indicating that DeCSS was
4 created for the Livid system?
5 A. I don't recall seeing any specific
6 comment to that effect.
7 Q. Did you see any comments to the
8 contrary?
9 A. I don't remember specifically seeing
10 any comments to the contrary either.
11 Q. So to the best of your recollection,
12 your judgments or your views about Johansen's
13 motivations are totally informed by the material
14 that MPAA gave you in early December?
15 A. By the content of the development
16 logs, that's correct.
17 Q. And you don't know what they
18 withheld from you; do you? Or didn't give you?
19 MR. GOLD: Are you suggesting --
20 MR. GARBUS: No, no. Absolutely
21 not.
22 MR. GOLD: Well, what is the
23 question?
24 Q. Do you know what information they
25 downloaded that they did not give you?
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2 MR. GOLD: If any.
3 MR. GARBUS: If any.
4 A. I am hard pressed to know a
5 negative.
6 Q. Did you ever ask if there were any
7 more logs that they downloaded?
8 A. I did not.
9 Q. So you don't know, as you sit here
10 today, how many logs they downloaded?
11 MR. GOLD: Other than what he
12 received?
13 MR. GARBUS: Right.
14 MR. GOLD: Which he has testified
15 to.
16 MR. GARBUS: Right.
17 MR. GOLD: What else are you
18 asking? Then I don't understand the
19 question. Wait a minute. He has
20 testified --
21 MR. GARBUS: Read back the
22 question.
23 (Record read.)
24 MR. GOLD: That's not -- he has
25 testified that he received logs from them
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2 and he thinks he still has them.
3 MR. GARBUS: Right.
4 MR. GOLD: Those are the logs he
5 got. Now I am not understanding -- and
6 he knows that they downloaded those logs.
7 MR. GARBUS: They may have
8 downloaded 100 logs and sent him 30. I
9 am asking, as I understand it, what is in
10 those logs and he doesn't know whether or
11 not --
12 MR. GOLD: What is in what logs?
13 The logs he never got?
14 MR. GARBUS: He doesn't know
15 whether or not -- let me see if we can
16 have an understanding.
17 He doesn't know whether or not
18 of the 3 and a half inches of logs that
19 he got, he doesn't know A, whether or
20 not the MPAA downloaded more logs or
21 not and B, you don't know whether or
22 not the MPAA saw on the internet more
23 than the logs they downloaded. Is that
24 correct?
25 MR. GOLD: It is correct, because
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2 he already testified to that.
3 MR. GARBUS: I haven't asked him
4 about some of that yet.
5 MR. GOLD: I think you did.
6 Q. All of the entries that made you
7 think that DeCSS is not Livid related are the ones
8 that are attached to your Declaration or are there
9 others?
10 A. I offhand don't know, can't answer
11 that completely.
12 Q. Did you select the documents to be
13 annexed to your Declaration? Did you pull them out
14 of the 3 and a half inches?
15 A. I did.
16 Q. So you made that selection process?
17 A. I selected some, yes.
18 Q. And the reason for the selection was
19 precisely to show or to support the claim, as I
20 understand it, that what he did was not for Livid?
21 A. They were illustrative selections,
22 yes.
23 Q. When you say "illustrative," were
24 there other selections?
25 A. I said illustrative in the sense
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2 that it was not an attempt to make a complete
3 selection of all materials that might be relevant,
4 but to select specific exemplary or -- examples.
5 Q. Have you read the Marcia King
6 affidavit before you came here today?
7 A. I'm sorry. Can you tell me more
8 about her? I'm sure I did. I need a better
9 description than a name.
10 Q. Marcia King submitted an affidavit.
11 Marcia King is an employee of Time Warner.
12 MR. GARBUS: So if you object to
13 my asking questions that relate to that
14 affidavit, I will not, at this time, ask
15 further questions.
16 MR. GOLD: Yes. Time Warner does
17 object.
18 BY MR. GARBUS:
19 Q. Do you know what information MPAA
20 downloaded prior to contacting you on DeCSS, if
21 anything?
22 A. No. I have no knowledge.
23 RQ MR. GARBUS: Mr. Gold, I would ask
24 you to produce all documents that MPAA has
25 relating to its knowledge of DeCSS or
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2 material related to DeCSS or that any of
3 the plaintiff companies have, other than
4 Time Warner.
5 MR. GOLD: I will take it under
6 advisement and as I stated before, the
7 procedure that I will use, I am going to
8 study your list and get back to you as
9 soon as I can with a response as to
10 whether we will deliver it or whether we
11 have some objection.
12 BY MR. GARBUS:
13 Q. You have been in the security
14 business for how long?
15 A. I have been involved with security
16 for about five years now.
17 Q. In this situation, it is your sense
18 you did an examination of the links and hyperlinks
19 in your second affidavit, which we haven't gotten
20 to, but tell me just in general, before we go into
21 it at great length, how many different links it was
22 on, DeCSS, in total.
23 A. Links? From what to where? I'm
24 sorry.
25 Q. How many different sites had DeCSS
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2 on it?
3 MR. GOLD: You mean posted DeCSS?
4 MR. GARBUS: Yes.
5 MR. GOLD: As of what period of
6 time?
7 MR. GARBUS: Let's say as of
8 December 1st.
9 A. I have no way of knowing a number.
10 Q. How about January 1st?
11 A. Again, I have no way of knowing.
12 Q. More or less than 2,000?
13 A. I have no idea.
14 RL Q. Did you ever make an investigation
15 of which links outside the United States -- which
16 sites outside of the United States have posted
17 DeCSS?
18 MR. GOLD: Hold on just a second.
19 (Discussion off the record.)
20 DI MR. GOLD: This was a subject
21 specifically referenced as one of the
22 subjects that Mr. Jacobson would be made
23 available to testify about. So that any
24 testimony on it isn't going to be binding
25 on anyone anyway. So, I think maybe you
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2 should save some time.
3 MR. GARBUS: I object to that.
4 The witness has an affidavit. I can ask
5 questions about it.
6 MR. GOLD: You can ask questions
7 about it, but did he say how many people
8 did or didn't post or link?
9 MR. GARBUS: Can I ask my
10 questions?
11 MR. GOLD: No, because I think it
12 relates to an area that he hasn't been
13 designated for and to an area that
14 someone else has been designated for.
15 MR. GARBUS: As I understand it,
16 based on your letter to me of May 10th,
17 it says, "Schumann will testify about
18 linking and hyperlinking."
19 MR. GOLD: And he has been.
20 MR. GARBUS: He has not.
21 MR. GOLD: He testified to a lot
22 of --
23 MR. GARBUS: We disagree. We will
24 get a ruling on it.
25 MR. GOLD: What you won't do is
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2 interrupt me. So if you will hold your
3 horses and your fire for just a few
4 seconds, I will finish.
5 Ken Jacobson was identified as a
6 witness, designated by all plaintiffs,
7 other than Time Warner, and designated
8 by the MPAA as a witness who will
9 testify in the subject area as to the
10 persons or entities posting or linking
11 to DeCSS, and that's what he will do.
12 MR. GARBUS: We have a
13 disagreement. I am talking about
14 posting, I am talking about linking, I am
15 talking about hyperlinking. It's exactly
16 what this witness is supposed to testify
17 about.
18 MR. GOLD: Do you want to waive
19 your deposition of Mr. Jacobson?
20 MR. GARBUS: Absolutely not. We
21 will get a ruling.
22 MR. GOLD: Do whatever. You have
23 gotten a lot of rulings.
24 BY MR. GARBUS:
25 RL Q. With respect to linking -- first of
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2 all, with respect to posting, do you know, let's
3 say as of December 1st, how many sites had posted
4 DeCSS?
5 MR. GOLD: Same objection.
6 MR. GARBUS: Let me ask about ten
7 questions and you will object and you
8 will have a record.
9 DI MR. GOLD: I object on this one on
10 the grounds that no plaintiff can be bound
11 by it and that another person has been
12 identified to testify on that subject.
13 Q. With respect to linking, I presume
14 Mr. Gold will make the same objection. We can just
15 save some time for December 1st, January 1st,
16 February 1st, and April 1st; is that right?
17 MR. GOLD: You have asked him a
18 question?
19 MR. GARBUS: Yes.
20 MR. GOLD: I don't want to talk to
21 him between a question and an answer,
22 although I am not aware of the question.
23 MR. GARBUS: Read it to him.
24 (Record read.)
25 MR. GOLD: The witness -- there is
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2 no point in setting up disputes to bother
3 the judge with when, in fact -- I have
4 just been advised that the witness
5 doesn't know anything about this subject.
6 So, you want to ask him again? This is
7 the subject of how many people posted or
8 linked to a posting on any given date.
9 MR. GARBUS: Or hyperlinked.
10 MR. GOLD: Or hyperlinked. You
11 don't know that, how many people?
12 THE WITNESS: In the world?
13 BY MR. GARBUS:
14 Q. Let's start with the United States.
15 A. No, I have no way of knowing.
16 Q. Did you ever have any conversation
17 with anyone at the MPAA as to their view of the
18 number of individuals, viewers who saw or know the
19 DeCSS code on any given date?
20 MR. GOLD: Answer that "yes" or
21 "no."
22 A. No.
23 Q. Do you have any knowledge of how
24 many people knew at one time or another of the
25 DeCSS code?
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1 Schumann
2 A. No.
3 Q. Do you know how many viewers went to
4 any of the sites that either posted, linked, or
5 hyperlinked to sites that had the DeCSS code?
6 A. No.
7 Q. Do you know if the number of people
8 is more or less than 2 million?
9 A. I do not know.
10 Q. Do you know if there were any
11 downloads? In other words, can you tell if a user
12 of a computer, such as myself, if I want to print
13 out something, can you tell what I have chosen to
14 print out or not print out?
15 A. From -- with what knowledge?
16 Q. In other words, is there any way
17 that, to your knowledge, the MPAA has made any
18 estimate of the number of people who have printed
19 out DeCSS?
20 MR. GOLD: I think the question
21 is: "Do you know if the MPAA has made
22 any estimate of the number of people who
23 have printed out DeCSS"? If you can,
24 answer that question.
25 Did I get your question right?
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2 MR. GARBUS: Yes.
3 A. No, I have no knowledge.
4 Q. And your answer would be the same
5 with respect to the other seven plaintiffs?
6 A. That's correct.
7 Q. Do you know that there are T-shirts
8 that have "DeCSS" on it?
9 A. I know there are T-shirts that have
10 a portion of the DeCSS code on them.
11 Q. Is that portion of the code
12 sufficient with the use of crypto analysis to
13 finish out the code and get the rest of the code?
14 MR. GOLD: Read it back.
15 (Record read.)
16 A. I'm sorry. Is that code --
17 MR. GARBUS: Withdraw it.
18 Q. Do you know how many websites posted
19 DeCSS on November 1st?
20 MR. GOLD: Answer "yes" or "no."
21 A. No.
22 Q. Just to save time, I assume that you
23 don't know, and tell me if that is true, with
24 respect to posting, linking, hyperlinking, and with
25 respect to any particular date that I ask you, that
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2 you don't know how many sites there were that were
3 either posting, linking, or hyperlinking with
4 DeCSS; is that right?
5 A. That's correct.
6 Q. Do you know if anyone at the MPAA
7 knows?
8 A. I have no knowledge of that.
9 Q. Did anyone at the MPAA ever tell you
10 they did know?
11 MR. GOLD: Just "yes" or "no."
12 A. No.
13 Q. Did you see Mr. Boyden's affidavit
14 in this case?
15 A. Can you refresh my memory? A name
16 alone is not good for my memory.
17 MR. GARBUS: Let's mark this as
18 the next exhibits, Exhibit 9.
19 (Defendants' Exhibit 9, Declaration
20 of Bruce E. Boyden, marked for
21 identification, as of this date.)
22 BY MR. GARBUS:
23 Q. Have you ever read that affidavit?
24 A. I don't believe I have ever read it.
25 Q. Let me show you Defendants' Exhibit
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1 Schumann
2 7. By the way, did anybody at the MPAA ever tell
3 you that they were visiting websites in January,
4 February, and March to determine where DeCSS was
5 posted?
6 A. MPAA?
7 Q. Yes. Or anybody on their behalf.
8 A. Yes.
9 Q. Who did it?
10 A. Someone at the Proskauer firm.
11 Q. Do you know if anybody at the MPAA
12 did it in addition to the Proskauer firm?
13 MR. GOLD: Yes or no?
14 A. No, I have no knowledge.
15 Q. Do you know whether or not since
16 they did it at the Proskauer firm, as sets forth in
17 the Boyden affidavit of January 13th, whether
18 anyone has done it at the MPAA since?
19 MR. GOLD: Only if they are
20 employed by MPAA? Is that what you are
21 asking?
22 MR. GARBUS: Yes.
23 A. Whether I have any knowledge if
24 anyone at the MPAA has looked at websites since
25 Boyden's --
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1 Schumann
2 Q. Yes.
3 A. No, I have no knowledge.
4 Q. With respect to John Gillmore's
5 affidavit, which you have in front of you, which is
6 Exhibit 7, have you read Mr. Gilmore's affidavit?
7 A. I have.
8 Q. Had you heard of Mr. Gilmore prior
9 to this litigation?
10 A. Not in any specific way.
11 Q. Do you know who Sun Micro Systems
12 is?
13 A. I do.
14 Q. Do you know of his involvement
15 there?
16 A. Only from what I read in his
17 affidavit.
18 Q. By the way, do you know what Corel
19 is?
20 A. C-O-R-E-L?
21 Q. Yes.
22 A. Yes.
23 Q. What is it?
24 A. It is a company out of Canada
25 somewhere. Montreal maybe.
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2 Q. What does it do?
3 A. They are a developer of software.
4 Q. Do you know what Redhat is?
5 A. Yes.
6 Q. What is that?
7 A. It is a company that sells Linux
8 versions.
9 Q. What does Corel sell or develop?
10 A. A variety of software.
11 Q. Either related to Linux?
12 A. Yes. I believe they have a version
13 of Linux.
14 Q. When you say they have a version of
15 Linux, can you tell me something more about that?
16 MR. GOLD: Objection to the form.
17 A. (No response.)
18 Q. When you say they have a version of
19 Linux, what does that mean?
20 A. It means they sell a particular
21 variation or release of Linux.
22 Q. Do you know what Cynga Support was?
23 A. I'm not familiar with that to any
24 degree.
25 Q. Did you ever hear of the term "Cyber
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1 Schumann
2 Punks"?
3 A. I have not. Not prior to reading
4 the affidavit.
5 Q. Have you ever read any articles
6 about Mr. Gilmore?
7 A. No.
8 Q. Have you ever read anything that he
9 has ever written?
10 A. Not to my specific recollection.
11 Q. Have you ever read anything that
12 Mr. Stevenson has ever written?
13 A. I have.
14 Q. What is that? Just the material
15 that came off -- excuse me.
16 A. The material off his website, yes.
17 Q. Other than that, have you ever read
18 anything of his?
19 A. I have not.
20 Q. Have you ever read anything of
21 Mr. Touretzky's affidavit that you have probably
22 read?
23 A. No.
24 Q. Have you ever heard of Mr. Touretzky
25 prior to today?
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2 A. I have not.
3 Q. Does the name Mr. Abelson mean
4 anything to you?
5 A. It does not.
6 Q. Did you read his affidavit before
7 you came here today?
8 A. If it was one of the affidavits, I
9 would have read it, yes.
10 Q. You read all the affidavits?
11 A. Again, I apologize. Names are
12 not --
13 Q. Have you ever read anything that
14 Mr. Abelson has ever written?
15 A. Can you refresh me more about his
16 affidavit and his background, please?
17 Q. I will show you the affidavit. With
18 Mr. Appel, have you ever read anything that he has
19 ever written?
20 A. Again, I would have to see his
21 affidavit to refresh my memory.
22 Q. Have you ever heard of his name
23 before this lawsuit?
24 A. No, I have not.
25 Q. Do you know if their affidavits were
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1 Schumann
2 ever submitted in any other lawsuits?
3 A. I have no knowledge, unless they
4 referenced that in their affidavits.
5 Q. Do you know what the public policy
6 award from the RCA Data Security is?
7 A. RSA?
8 Q. Yes.
9 A. I am not familiar with that
10 particular award.
11 Q. What is the RSA?
12 A. RSA is a security company.
13 Q. Prestigious in their field?
14 A. Yes, they are.
15 Q. What kind of work do they do?
16 A. They are primarily known for the RSA
17 algorithm that the founders of RSA developed.
18 Q. Do you know whether or not
19 Mr. Gilmore ever won an award from that company?
20 A. If it's mentioned in his affidavit,
21 I have no reason to believe he did not.
22 Q. The DeCSS software for Windows and a
23 similar READDVD software for Linux can both be used
24 to copy compressed video images from a DVD disk
25 onto a hard drive. Isn't that so?
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2 A. I know that DeCSS can perform that.
3 I have no detailed knowledge of the other program.
4 MR. GARBUS: We can stop now. I
5 think we have another day at least with
6 this witness. I think more. I think at
7 some point in time, maybe after that day,
8 we can get rulings on whether or not I
9 can examine him at length about his
10 affidavit of April 3rd, which --
11 MR. GOLD: You can examine him now
12 about his affidavit.
13 MR. GARBUS: But that's exactly
14 what you told me for us to do.
15 --o0o--
16 (Continued on next page to include jurat.)
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2 MR. GOLD: I was responding to the
3 specific questions you asked. You wanted
4 questions about his affidavit. Let's go
5 off the record.
6 (Time noted: 5:00 p.m.)
7
8
9 ______________________________________
10 ROBERT W. SCHUMANN
11
12
13 Subscribed and sworn to before me
14 this____ day of___________, 2000.
15
16 __________________________________
17 NOTARY PUBLIC
18
19
20
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22
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1
2 C E R T I F I C A T E
3 STATE OF NEW YORK )
4 ) ss.:
5 COUNTY OF RICHMOND)
6 I, ELIZABETH SANTAMARIA, a Shorthand
7 Reporter and Notary Public within and for
8 the State of New York, do hereby certify:
9 That ROBERT W. SCHUMANN, the witness
10 whose deposition is hereinbefore set forth,
11 was duly sworn by me, and that such
12 deposition is a true record of the
13 testimony given by such witness.
14 I further certify that I am not
15 related to any of the parties to this
16 action by blood or marriage; and that I am
17 in no way interested in the outcome of this
18 matter.
19 IN WITNESS WHEREOF, I have hereunto
20 set my hand this 16th day of May, 2000.
21
22 _____________________________
23 ELIZABETH SANTAMARIA
24
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1
2 ------------------ I N D E X ------------------
3 WITNESS EXAMINATION BY PAGE
4 ROBERT W. SCHUMANN MR. GARBUS 4, 103
5 MR. HERNSTADT 69
6 ----------- INFORMATION REQUESTS --------------
7 DIRECTIONS: 38, 40, 58, 67, 115, 116, 117, 137, 145,
8 186, 189
9 RULINGS: 8, 38, 40, 58, 67, 116, 117, 137, 144, 186,
10 188
11 REQUESTS: 29, 33, 52, 79, 105, 175, 184,
12
13 ------------------- EXHIBITS -----------------------
14 DEFENDANTS' FOR I.D.
15 Defendants' Exhibit 1, Mr. Robert W. Schumann's
16 Declaration......................................... 30
17 Defendants' Exhibit 2, Supplemental Declaration
18 of Robert Schumann.................................. 73
19 Defendants' Exhibit 3, Declaration of
20 Matt Pavlovich...................................... 149
21 Defendants' Exhibit 4, Declaration of
22 Chris DiBona........................................ 149
23 Defendants' Exhibit 5, Declaration of
24 Frank Stevenson..................................... 149
25 --o0o--
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2 --------------- I N D E X (C O N T'D) --------------
3 ------------------- EXHIBITS -----------------------
4 DEFENDANT'S FOR I.D.
5 Defendants' Exhibit 6, Declaration of
6 David Wagner........................................ 149
7 Defendants' Exhibit 7, Declaration of
8 John Gilmore........................................ 149
9 Defendants' Exhibit 8, Declaration of
10 Bruce Schneier...................................... 149
11 Defendants' Exhibit 9, Declaration of
12 Bruce E. Boyden..................................... 193
13
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