1 VOLUME: I PAGES: 1-85 EXHIBITS: 1-3 uNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Case No. 00 CIV 277 (LAK)(RLE) UNIVERSAL CITY STUDIOS, INC.; ) PARAMOUNT PICTURES CORPORATION; ) METRO-GOLDWYN-MAYER STUDIOS, ) INC.; TRISTAN PICTURES, INC.; ) COLUMBIA PICTURES INDUSTRIES, ) INC.; TIME WARNER ENTERTAINMENT ) CO., L.P.; DISNEY ENTERPRISES, ) INC.; AND TWENTIETH CENTURY FOX ) FILM CORPORATION, ) Plaintiffs, ) ) VS. ) ) SHAWN C. REIMEREDES; ERIC CORLEY ) A/K/A "EMMANUEL GOLDSTEIN"; ) ROMAN KAZAN AND 2600 ENTERPRISES,) INC. ) Defendants. ) DEPOSITION OF OLEGARIO L. CRAIG, a witness called on behalf of the Plaintiffs, taken pursuant to the provisions of the Federal Rules of Civil Procedure, before Loretta Hennessey, Registered Merit Reporter and Notary Public in and for the Commonwealth of Massachusetts, at the offices of Choate, Hall & Stewart, 53 State Street, Boston, Massachusetts, on Monday, July 5, 2000, commencing at 3:49 p.m. 2 1 APPEARANCES: 2 PROSKAUER ROSE LLP 3 (By William M. Hart, Esq.) 1585 Broadway 4 New York, New York 10036 for the Plaintiffs. 5 6 FRANKFURT GARBUS KLEIN & SELZ, P.C. 7 (By Martin Garbus, Esq., and Edward Hernstadt, Esq.) 8 488 Madison Avenue New York, New York 10022 9 for the Defendants. 10 11 ____________ 12 13 14 15 16 17 18 19 20 21 22 23 24 HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 3 1 I N D E X 2 Witness Direct Cross Redirect Recross 3 OLEGARIO L. CRAIG 4 (By Mr. Hart) 4 -- 5 6 E X H I B I T S 7 Exhibit No. Page 8 1 Notice of Deposition. 21 9 2 Subpoena. 21 10 3 Declaration of Olegario L. 11 Craig. 21 12 13 _______________ 14 15 16 17 18 19 20 21 22 23 24 HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 4 1 P R O C E E D I N G S 2 OLEGARIO L. CRAIG, Sworn 3 a witness called on behalf of the Plaintiffs, 4 having been duly sworn, was examined and 5 testified as follows: 6 DIRECT EXAMINATION 7 BY MR. HART: 8 Q. Have you ever been deposed before, Mr. Craig? 9 A. Nope. 10 Q. Have you ever testified in connection with a 11 lawsuit before? 12 A. I don't think so. 13 Q. How old are you? 14 A. 30. 15 Q. Are you employed? 16 A. Yes. 17 Q. By whom? 18 A. The University of Massachusetts at Amherst. 19 Q. How long have you been employed there? 20 A. Since July of 1995. 21 Q. And has your job capacity changed in any way 22 since July of '95? 23 A. Yes. I have acquired more responsibilities, more 24 depth of knowledge, and generally sort of have HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 5 1 been moved away from front line support and into 2 second or third tier support, depending on how 3 you define the industry terms. 4 Q. Second or third tier being higher? 5 A. Yes. 6 Q. What were your responsibilities when you 7 initially went to work for the University of 8 Massachusetts? 9 A. Analogous to front line help desk support at an 10 ISP. I answered phone calls, I talked to people 11 who walk in the front door, I answered E-mail and 12 triaged them for type of problem and operating 13 system to second and third tier support, if I 14 couldn't answer them myself, which was often the 15 case. 16 Q. Now what do you do? 17 A. Now I am primarily responsible for operating 18 system issues on Linux and digital Unix systems, 19 but I have had a hand in solving problems and 20 finding solutions in various operating systems 21 and applications -- 22 Q. I'm sorry, I didn't mean to interrupt you. 23 A. -- and network topologies. 24 Q. Do you have a curriculum vitae or resume? HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 6 1 A. I sort of have one. I haven't been job seeking 2 recently, so I have a very out-of-date job 3 description and a very out-of-date resume. 4 Q. Can you briefly tell us what your educational 5 background is? 6 A. Went to the University of Massachusetts as a 7 freshman in 1988, studied computer science for 8 three years, dropped out for various reasons; 9 stayed in the area and went back to UMass after 10 two years to pursue a degree in communication, 11 which I finished in 1995, May of 1995. 12 Q. Is that a bachelor's degree? 13 A. Yes, BA. 14 Q. Bachelor of arts? 15 A. Yes. 16 Q. Do you have any post-graduate degrees or have you 17 studied at the post-graduate level? 18 A. I have sat in on various classes as part of my 19 work, but I don't actually -- I don't have any 20 written record of those classes. I didn't audit 21 them formally, as an example. 22 Q. And prior to 1995, did you have any experience 23 with computers or the Internet? 24 A. Yes, I have been an active participant on the HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 7 1 Internet since 1986. 2 Q. And that's pre the World Wide Web, then? 3 A. Oh, yes. I remember thinking that the World Wide 4 Web was yet another newfangled Internet 5 application. Oh, it will never catch on. 6 Q. Is it fair to say that things have changed and 7 changed rapidly in the last ten years with 8 respect to the Internet? 9 MR. HERNSTADT: Object to the form. 10 A. It depends on what things you're looking at. 11 Some things have. 12 Q. Let's talk about bandwidth. 13 A. Okay. 14 Q. What kind of Internet connection do you currently 15 have at UMass in your office? 16 A. In my office I have a hundred megabit Ethernet to 17 my desk -- this is actually described in my 18 declaration -- a hundred megabit Ethernet to my 19 desk which is connected to a gigabit Ethernet 20 fiber optic link to the UMass backbone which has 21 24 megabit per second link to the general 22 Internet, commodity Internet connection is what 23 we call it, through Cable & Wireless. 24 Q. And what about students at UMass., what kind of HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 8 1 Internet connections do they have access to 2 generally? 3 A. Are you talking about the dormitories? 4 Q. Well, if you have different answers for different 5 places, tell me. 6 A. I do. The dormitories have a segregated 10 7 megabit Ethernet in each dorm. When I say 8 segregated, I mean all the dorms together cannot 9 saturate our 24 megabit per second link to the 10 Internet at large. Each of those 10 megabit per 11 second Ethernet networks in each dormitory is 12 then linked via a hundred megabit uplink to a 13 router which connects to our campus FDDI 14 backbone. Those routers are configured not to 15 allow each dorm to -- let me back up a second. 16 This is actually not the area that I 17 administer, so I'm working on knowledge of 18 somebody else's responsibilities here. 19 Q. When you say "area," what do you mean by "area"? 20 A. I am not responsible for the campus networking, 21 I'm only responsible for the computer science 22 department. 23 Q. Gotcha. Go ahead. 24 A. Each dorm has a 10 megabit per second internal HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 9 1 network with a hundred megabit per second uplink, 2 so the entire dorm has a 100 megabit per second 3 uplink to the router on the campus backbone. The 4 campus backbone is FDDI, digital fiber optical. 5 Those are in turn connected to a router which 6 connects to the Cable & Wireless point of 7 presence in Amherst. 8 Q. And you said a second ago in response to my 9 question about what kinds of Internet connections 10 the students had access to -- 11 A. There are various places on campus where students 12 can go to use PCs and Macs that are connected 13 via, I believe, higher speed networks, hundred 14 megabit Ethernet for each PC or Mac, but this is 15 a supervised situation with a lab monitor and the 16 lab closed at night. 17 Q. I'm sorry, is supervised? 18 A. Is monitored. When I was a student, I ran one of 19 these, long before it was networked to the 20 Internet. The labs each have monitors, and they 21 are expressly for educational purposes: You're 22 not allowed to play games, you're not allowed 23 to -- you're not supposed to download things. 24 I'm not certain how carefully they monitor HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 10 1 individual students' activities on each PC or 2 Mac. 3 Q. Have you had a Napster problem at your school? 4 A. Can you define a "problem"? 5 Q. Well, let's start with have you had any problems 6 in terms of your servers or networks being 7 overloaded as a result of students trading MP3 8 audio files through file sharing protocols such 9 as Napster? 10 A. We have not had anything directly attributable to 11 that. However, I should state that most of the 12 servers to which you refer would not be within my 13 area of administration, so if there were some 14 problems, I could not pinpoint them. 15 Q. Gotcha. And apart from issues of overloading the 16 system, as it were, are you aware whether there 17 have been any problems in terms of students using 18 Napster in violation of any rules of conduct or 19 policies of the university? 20 A. The university has not prosecuted anyone in 21 relation to Napster, nor, to the best of my 22 knowledge, have they employed administrative 23 sanctions against anyone. 24 If a particular student on the network HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 11 1 could be shown to be starving the network of 2 resources, just hogging as much bandwidth as he 3 or she could, there are policies in place under 4 which the Office of Information Technologies 5 would be free to sanction that student, cut off 6 their Internet access, do anything they want, 7 regardless of the type of content or transaction 8 that caused the problem. 9 Q. Gotcha. 10 A. It's a shared resource, and part of the 11 acceptable use policy that OIT has is a student 12 cannot, by means of actions, whether they're 13 otherwise legal or not, monopolize the resource 14 such that other students can't use it. 15 Q. Gotcha. Do you regard Napster as legal? 16 MR. HERNSTADT: Objection. He's not a 17 lawyer. If you're asking for his personal 18 opinion as opposed to a legal opinion, you can 19 answer the question. 20 Q. Just so we're clear, to avoid cluttering the 21 record with similar objections in the future, I 22 will stipulate whenever I ask you a question like 23 that, I'm asking for your view and not a lawyer's 24 view. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 12 1 A. Okay. 2 MR. HERNSTADT: Let me add then, will 3 you also stipulate that anything he expresses in 4 terms of his view on what could be considered a 5 legal matter is by stipulation not the 6 Defendants' position or an admission of anything? 7 MR. HART: He's your witness. I'm 8 just saying I'm not asking a question that calls 9 for a legal conclusion. 10 Q. You used the word "legal" in your last answer, 11 and we can read it back if you like. I'm just 12 asking what your view of "legal" is. 13 A. Okay. So which question do you want me to 14 answer? 15 Q. In your view, is Napster legal? 16 A. Okay. I have read the latest defense brief by 17 David Boies as to why he thinks Napster is legal, 18 and I think he presents some pretty compelling 19 arguments. I think that Napster, as it exists 20 right now, is a method for file transfer, so 21 Napster itself, I think, is wholly legal. It 22 sort of falls under what I would see as a common 23 carrier definition, regardless of the content of 24 the files that are being transferred. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 13 1 (Discussion off the record.) 2 Q. Did you ever have any experience in using any 3 video compression technologies? 4 A. Not since being a student and doing various 5 things with videotape while trying to create 6 presentations for communications classes. So not 7 in the last five years. 8 Q. Okay. Fair enough. 9 Have you heard of MPEG-4 or DivX? 10 A. Yes, I have. 11 Q. And what is your understanding of what that is? 12 A. It's a lossy compression algorithm; essentially a 13 method for taking video and squeezing as much as 14 you possibly can out of it, data that is 15 considered unnecessary for the final product, 16 much as the water in orange juice is considered 17 unnecessary for frozen concentrated orange juice, 18 and then putting it into a stream and making it 19 playable via a player. 20 Q. Isn't it also like MP3 in the sense that MP3 is 21 used to compress audio files for transfer over 22 the Internet? 23 MR. HERNSTADT: Objection to form. 24 Argumentative. Go ahead. If you can answer. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 14 1 A. It is similar in that it compresses. That is a 2 very, very broad statement. 3 Q. Have you ever used DivX? 4 A. Nope. 5 Q. Have you ever used DeCSS? 6 A. DeCCS? 7 Q. Uh-huh. 8 A. I have not. 9 Q. Do you know what it is? 10 A. I do. 11 Q. What is it? 12 A. It's a method for -- it's a program that allows 13 you to take the contents of a DVD and descramble 14 it, decrypt, there are various words being used, 15 essentially read it in a readable format from the 16 DVD without the use of software sanctioned by the 17 MPAA. 18 Q. And how do you know this? 19 A. From reading various documents. Originally, the 20 reason that I came into this is that I was 21 looking for a way to play DVDs on my Linux box. 22 Q. When you say your "Linux box," what are you 23 referring to? 24 A. I'm referring to my home computer, which I built HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 15 1 myself, and I paid extravagant money for a 2 hardware DVD player and a hardware DVD decoder 3 which I cannot use under Linux. 4 Q. When you say hardware DVD player, what are you 5 referring to? 6 A. I'm referring to two things in that previous 7 statement, one of which was a hardware DVD 8 player, that is the actual physical player into 9 which the DVD sits and which can read disks that 10 are formatted in DVD format, otherwise higher 11 density than the CD-ROM. The DVD decoder is a 12 piece of hardware, mine happens to be 13 manufactured by Creative Labs, that theoretically 14 does the decompression and decryption of the DVD 15 in hardware so software is not really required to 16 access the bits on the DVD. This offloads the 17 necessity of doing decryption and decompression 18 on the CPU. 19 Q. I'm sorry, were you finished? I don't mean to 20 interrupt you. 21 A. I was just going to say, so theoretically you 22 could run it with a slower CPU or with software 23 that didn't know how to read DVDs by itself. 24 In answer to your original question, HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 16 1 the reason I got into this was I looked at a site 2 called openDVD, and they had a mention of the DVD 3 discussion ongoing at the server at the Harvard 4 School of Law, which I went and subscribed to. 5 Q. Gotcha. How long have you owned a Linux-based 6 operating system computer? 7 MR. HERNSTADT: Objection to form. 8 How long he's owned the computer or how long he's 9 used Linux? 10 MR. HART: I think the question was 11 the latter, but if there's some way you could 12 interpret it to mean something else, by all means 13 answer the second question. 14 MR. HERNSTADT: It might be the 15 latter. 16 THE WITNESS: I think I understand 17 what he means. 18 A. I've had Linux as a primary operating system on 19 my home computer since 199 -- I want to say 6, 20 but it could have been 7. 21 Q. And how much do you have invested in that home 22 computer system at this point in terms of sunk 23 cost? 24 A. It's a difficult thing to answer because I HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 17 1 upgrade piecemeal. I buy a new box that I can 2 put a new motherboard in, but I keep the old hard 3 drive, and then later I buy a new hard drive and 4 then scrap the old one or put it in another 5 system. 6 Q. Sure, I understand. 7 A. That particular system, all told with the stuff 8 that's in it right now, I would say over $1,000. 9 Can I make an editorial comment about 10 that? 11 Q. If you feel you must, sure. 12 A. Purchasing an equivalent system from one of the 13 commercial system integrators like Dell, Gateway, 14 IBM, would probably run you upwards of $2,000. I 15 do my own research into hardware integration, and 16 there's a fair amount of labor in what I do as a 17 hobby and sort of a private consulting business 18 that would be soaked up as profit if buying a 19 system commercially. 20 Q. Gotcha. You are going to testify at the trial in 21 this case; is that right? 22 A. I have not been, I think, asked to formally. 23 MR. HART: Mr. Hernstadt is giving me 24 the thumb's up, which means he's going to let the HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 18 1 witness live or someone won a race or something. 2 MR. GARBUS: Why don't you invite the 3 witness to testify. 4 MR. HERNSTADT: No, we intend -- 5 MR. HART: I was attempting to have 6 the witness testify until Mr. Hernstadt, in the 7 middle of his testimony, stuck his thumb up. 8 MR. HERNSTADT: That was intended to 9 communicate to you that we intend to have him 10 testify at trial. 11 Q. Did you know that? 12 A. I had gathered it from inferences, but we 13 hadn't -- there was some question as to whether 14 this deposition would be videotaped and perhaps 15 that would be admissible at trial. It's going to 16 be a hassle for me to go to New York. 17 Q. But you can come? 18 A. Probably. I would need to know as far in advance 19 as possible as to what day I need to take off 20 from work, because we're already short-staffed, 21 and there are several vacations due in the months 22 of July and August. 23 Q. I understand. 24 So far you haven't downloaded DeCSS HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 19 1 onto your computer; is that right? 2 A. That's a good question. I may have done, because 3 it may still be a part of the Linux DVD project's 4 source tree, which I downloaded, but have not 5 really had a chance to play around with. 6 Q. So you don't know whether you've already 7 downloaded DeCSS? 8 A. I suspect I have. 9 Q. But you haven't been using it -- 10 A. No. 11 Q. -- in conjunction with your DVD drive to play it 12 on your Linux operating system; is that right? 13 A. At the present time I'm forced to boot into a 14 Microsoft operating system to be able to play 15 videos on my DVD player. 16 Q. Do you know what language DeCSS operates in, what 17 its operating environment is? 18 MR. HERNSTADT: Objection to form. If 19 you understand the question. 20 MR. HART: That's fine. 21 Q. You can rephrase my question in giving me the 22 answer. 23 A. DeCSS has been posted, to my knowledge, in 24 several different forms. I understand the HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 20 1 original executable and source code were written 2 for the Windows operating system. This was for a 3 proof of concept, if you will. As one of the 4 pieces of a software DVD player, it's necessary 5 to be able to actually read the DVD. And to do 6 so without code that is under NDA or other 7 agreement in the open source model is necessary 8 for development of an open source player. 9 Q. So it's posted in Windows, is that what you said? 10 A. The original source code and executable were 11 written for Windows. However, source code and 12 concepts in source code can be easily transferred 13 from one operating system to another, it's a 14 question of the hooks that you use. 15 Q. Have you, to use your terms, transferred those 16 concepts into a Linux application? 17 A. Are you asking me whether I've transferred the 18 concepts embodied in DeCSS into a Linux 19 application? 20 Q. Uh-huh. 21 A. No, I have not. 22 Q. Are you personally engaged in that process? 23 A. No, I'm not. 24 Q. Apart from your declaration, which we're going to HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 21 1 mark in a moment, have you prepared any other 2 materials for use in connection with this case? 3 By "any materials," I mean in any form, whether 4 it's written in English or in computer code or 5 anything else. 6 A. Aside from E-mails that I sent to the public list 7 and a couple of things between Wendy Seltzer, and 8 Ed Hernstadt and myself, I can't think of 9 anything that falls within that definition. 10 Q. When you say "the public list," what are you 11 referring to? 12 A. The discussion list dvd-discuss, which is hosted 13 at eon.law.harvard.edu. 14 MR. HART: Let's mark 1, 2, 3. 15 (Documents marked as Exhibits 1, 2, 3 16 for identification.) 17 (Documents exhibited to witness.) 18 Q. I've just had the reporter mark and show you 19 Exhibits 1 through 3, Mr. Craig. They should be 20 respectively a deposition notice, a subpoena and 21 a copy of your declaration. 22 Working backwards, I suppose, turning 23 to Exhibit 3 first, is that a true copy of the 24 declaration that you submitted in this case? HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 22 1 A. Without reading every word, it appears to be. 2 Q. Thank you. 3 With respect to Exhibits 2 and 1, have 4 you ever seen either of those documents before? 5 A. Presuming they are in fact the subpoena and the 6 notice of deposition that -- wait a minute. Yes, 7 presuming they are in fact the same documents 8 that were presented to me by the server, I've 9 seen them. 10 Q. Okay. 11 (Discussion off the record.) 12 THE WITNESS: If it's an appropriate 13 time for a break, I'd like another cup of water. 14 (Discussion off the record.) 15 Q. Mr. Craig, what expertise do you have in the 16 design and operation of system networks? 17 A. System networks? I'm not certain I understand 18 what you mean. 19 Q. I'm going to have to apologize in advance because 20 I'm sure that there will be times when I don't 21 use the terminology in the proper way. What I'm 22 trying to refer to is, in a very general way, 23 networking of computers into larger systems 24 whereby computers can interact with each other HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 23 1 within an environment such as a college or 2 university. 3 A. Sure. 4 Q. With that definition in mind, I ask you to answer 5 the question. 6 A. For, I would guess, the last three years, I've 7 been involved with our own -- when I say "our," 8 I'm referring to the Department of Computer 9 Science and my group, which is called the 10 Computer Science Computing Facility, and as a 11 group we are responsible for all of the 12 networking infrastructure that the Computer 13 Science Department utilizes. 14 We have recently moved to a new 15 building and had to plan the network there. We 16 had to upgrade several pieces of old networking 17 equipment, several sections of old networking, in 18 essence, over the past three years, and of course 19 that's an ongoing process. 20 I regularly build custom installations 21 of operating system software for computer systems 22 which are connected to our networking and in some 23 cases are being used as clustering systems; in 24 other words, computers that have a private HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 24 1 network that connects between them as well as 2 each computer having an external interphase that 3 is seen by the rest of the world, and for all 4 intents and purposes these compute servers are 5 intended to be seen as one machine. So the 6 private network between the systems does the work 7 of sharing the data and the processing load, and 8 you in essence have not a massively parallel 9 computer, that's actually a technical term, but a 10 parallel processing cluster. You can see bigger 11 examples of such things at NASA's Beowulf 12 project. 13 Q. So you really haven't had responsibility for the 14 networks that students have access to through 15 their dorms, but you have had responsibility in 16 designing and implementing the network as it 17 exists in the computer lab facility? 18 A. That's correct. That also includes, that 19 includes an educational lab that has networking 20 comparable to what you would see in the student 21 dorms, except that it's a smaller lab so there 22 are less computers than you would find, I would 23 guess, in a typical college dorm, presuming that 24 one out of two students have a computer connected HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 25 1 to the network. 2 Q. When you say you had a lab that was comparable to 3 what was in the dorms -- 4 A. Yes. 5 Q. -- you mean comparable in terms of bandwidth and 6 speed? 7 A. Yes. 8 Q. And that is again what? 9 A. That's the computer science ed. lab. The speed, 10 I assume that's what you're asking? 11 Q. Correct. 12 A. The speed is 10 megabit Ethernet to a hub, which 13 then has a connection to a switch which has a 14 connection to our main -- actually, it has a 15 connection to our router. 16 Q. Now, in your declaration, you made certain claims 17 with respect to the size and speed at which 18 certain files could be transferred over certain 19 types of networks; is that correct? 20 A. That is correct. 21 Q. I want to take a look at some of the statements 22 that you made in your declaration. 23 In Paragraph 4B of your declaration 24 you say that you were able to transfer a 1.5 HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 26 1 gigabyte file using a 10 meg switched Ethernet 2 connection, and that the transfer time for that 3 size file took two hours and 15 minutes; is that 4 -- do I have that right? 5 A. That is correct. 6 Q. Can you tell me what the effective transfer rate 7 of that operation was as a function of your 8 actual bandwidth? And if I don't have it right, 9 please correct that in your answer. 10 MR. HERNSTADT: Objection to form. 11 You can answer it if you can. 12 A. Okay. The available bandwidth would be measured 13 by the smallest bandwidth available over the 14 entire connection. This actually was a better 15 situation than you would expect to find in most 16 local area networks, because in order to simulate 17 a 10 megabit connection without using one of the 18 ed. lab computers, which is the only 10 megabit 19 Ethernet available to me, I had to downgrade a 20 port on the switch to 10 megabits, which is just 21 basically flipping a switch in software on the 22 port, on the Ethernet switch. 23 Q. Right. 24 A. So the source computer, the computer from which HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 27 1 files were being transferred, was connected at a 2 hundred megabit Ethernet to a switch, and the 3 target computer, to which the files were being 4 transferred, was connected at 10 megabit Ethernet 5 to the same switch. In all practicality, that 6 situation would never exist in a 10 megabit LAN. 7 So this figure is actually a better than average 8 or even expected best case, but I think it 9 suffices for the purposes of illustration. 10 Q. Now can you answer my question? 11 A. I'm sorry. 12 MR. HERNSTADT: Objection to the form, 13 being argumentative. 14 Q. What was the effective transfer rate? 15 A. The effective transfer rate, according to? 16 Q. As a proportion of the overall bandwidth of this 17 10 meg connection. 18 A. Two hours and 15 minutes per 10 megabit per 19 second. That's something, if you want me to pull 20 out a calculator, I can work it out. 21 Q. Would you? 22 A. Sure. 23 (Witness complies.) 24 So that was not actually a very good HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 28 1 reflection of a 10 megabit per second Ethernet. 2 I actually achieved a transfer rate of 15.5 3 megabits per second. 4 Q. Which means what in plain English? 5 A. It means I achieved faster than the theoretical 6 maximum of the 10 megabit per second Ethernet. 7 Probably the port was overloading. I'd have to 8 look at the hardware specs to find out why that 9 was. 10 Q. You're saying the test in 4B isn't good because 11 it actually exceeded what you claim to be 10 12 megabit per second capacity? 13 A. That's correct. 14 Q. Okay. Now, what would you say that the normal -- 15 if there is a range, you can give me the range -- 16 but the normal effective transfer rate of 17 content, let's say, of a 1.5 gig file would be 18 over a 10 meg per second switched Ethernet 19 connection? 20 A. That's a difficult question to answer. When you 21 say normal, are you talking about a typical local 22 area network with other users using it? 23 Q. Uh-huh. 24 A. I would expect to see a maximum of one third to HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 29 1 one quarter the theoretical maximum. 2 Q. Which would translate into what in terms of 3 speed? 4 A. That would be 3 to 4 megabits per second. I'm 5 sorry, one third to one fourth. Less than 3 6 megabits per second. 7 Q. Less than 3 megabits per -- 8 A. 2.5 to 3 megabits per second. 9 Q. Now, do you know what the size of a DivX 10 compressed feature film is on average in terms of 11 file size? 12 A. That's a very difficult question to answer. As I 13 understand it, the person doing the compression 14 makes choices as to how much compression they 15 want to obtain. 16 Q. Gotcha. And the trade-off is between file size 17 and image quality; is that -- 18 A. To a certain extent. There's a law of 19 diminishing returns where as you try, assuming 20 you're talking about MPEG, talking about 21 reduction of MPEG stream, MPEG has various frames 22 in it that are not actual still picture frames 23 but merely an explanation of what bits had to 24 change from the previous frame. So the more you HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 30 1 try to squeeze out, the more changes you have to 2 make to the previous frame, so the more data you 3 have to put into those intermediate frames. 4 There comes a point where the quality will be so 5 poor that you can't get anything more out of it 6 without doing something else. 7 One of the things that I've seen on 8 the explanations of DivX -- meaning, I assume 9 we're talking about the new hacked version of 10 Microsoft MPEG-4 Kodak and not the old 11 pay-per-view scheme from Circuit City -- is that 12 you can reduce the frame rate, in other words, 13 the number of actual frames that the eye sees, 14 from 30 per second, which is the rate at which a 15 DVD can display, down to 20 or 24, or perhaps to 16 even fewer. 17 Q. Would you accept for the sake of this discussion 18 that a feature film could be compressed using 19 DivX -- the DivX we were referring to as MPEG-4, 20 not the Circuit City scheme, as you referred to. 21 Throughout I will be referring to the former 22 DivX, not the latter. Okay? 23 A. The former we discussed, not the former in time? 24 Q. Correct. Just to be clear, the compression HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 31 1 scheme, not the Circuit City scheme, as it 2 were -- 3 A. Right. 4 Q. -- in your words. 5 That one can compress a feature-length 6 movie into a file using DivX into a file size of 7 650 megabytes. Does that sound right to you? 8 MR. HERNSTADT: Object to the form of 9 the question. 10 A. I would not actually be able to accept that 11 without seeing the results. I think that what 12 you would get at that point would be so degraded 13 in quality from the original that it wouldn't be 14 worth watching. 15 Q. You've never used DivX? 16 A. But I've never used DivX. I'm basing that purely 17 on my knowledge of what has to be thrown out. 18 Q. Have you ever seen DivX displayed? 19 A. I have not. 20 Q. Just work with me for a moment. I won't ask you 21 to accept those numbers as gospel, but if we were 22 using 650 megabytes as the file size for a DivX 23 compressed movie, using what you consider to be 24 a, quote, normal transfer time over a 10 megabit HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 32 1 per second network with the normal amount of 2 traffic, what kind of file transfer time are we 3 talking about? 4 MR. HERNSTADT: Objection to the form 5 of the question. It assumes facts not in 6 evidence, or, more specifically, what's the 7 source of the movie? 8 MR. HART: Who cares? 9 MR. HERNSTADT: Well, if it's a 10 camcorder as opposed to a DVD you're talking 11 about. 12 MR. HART: Stop. It's not an 13 objection anymore. Let me make it easy. 14 MR. HERNSTADT: Please, that's what 15 we're looking for. 16 Q. (*)4B in your dec, you say, a 1.5 gig file 17 transferred using 10 meg per second switched 18 Ethernet yielded two hours 15 minutes. You've 19 now said that figure is an error, that was 20 actually optimistic -- 21 A. Right. 22 Q. -- for a real 10 meg network, according to you. 23 I guess I'm asking with respect to 24 what you believe is the normal transfer, HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 33 1 effective transfer rate of a real 10 meg network, 2 with normal traffic, you use a 650 megabyte file 3 rather than a 1.5 gig file, right? 4 A. Right. 5 Q. What kind of transfer time are we talking about? 6 (**)? 7 A. Can I take out the calculator? 8 Q. Absolutely. 9 MR. GARBUS: Can I hear the question 10 back. 11 MR. HART: Fine. 12 (Record read from * to **.) 13 (Discussion off the record.) 14 THE WITNESS: Are we off the record? 15 MR. HART: We can be if you'd like. 16 THE WITNESS: I'd like. 17 (Discussion off the record.) 18 MR. HERNSTADT: Back on the record. 19 Why don't you explain what happened. 20 THE WITNESS: In my hasty calculations 21 answering the earlier mathematical question, I 22 forgot to divide by 1024 once yielding 15, an 23 answer of 15 megabits per second, which was in 24 fact incorrect. I actually got 1.5 megabits per HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 34 1 second. 2 MR. HERNSTADT: That was in response 3 to the question on what the effective transfer 4 rate was of the 1.5 gigabyte file in Paragraph 4B 5 of the Craig declaration? 6 THE WITNESS: Right. 7 BY MR. HART: 8 Q. Well, more specifically, it was with respect to 9 the effective transfer rate of a 10 meg per 10 second switched Ethernet connection subject to 11 normal traffic? 12 A. Uh-huh. 13 Q. Right? 14 A. Yes. 15 Q. We were talking about what you would expect to 16 actually see in that network? 17 A. Right. 18 Q. Your answer as corrected is what, just so we have 19 the record clear in one place? 20 A. My answer as corrected would be probably one 21 third of that, which would be -- 22 Q. I'm sorry, one third of 10 megs per second? 23 A. One third to one quarter of 10 megabits per 24 second. But the problem in going between these HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 35 1 figures is that the number of bits being shoved 2 down the pipe does not reflect the number of bits 3 in the original file, it reflects that number 4 plus all of the overhead for the packet, packet 5 encapsulation. 6 Each piece of the file is a certain 7 number of bits, but then it's shoved into 8 something that has a known beginning and ending 9 sequence. And the beginning sequence also 10 specifies the length of that packet and sequence 11 number, this is No. 2 of I don't know how many 12 packets being shoved down, and a bunch of other 13 stuff. 14 Q. Right. So you're saying we have to take into 15 account the 2 of 5 or 2 of 10 nomenclature that's 16 part of the file? 17 A. Right. So my answer as to what I would expect to 18 see down the pipe on an average Ethernet is the 19 number -- 20 Q. On a 10 megabit per second switched Ethernet 21 connection? 22 A. Right. I apologize for my imprecision. 23 -- reflects the number of bits that 24 would be moving. It doesn't reflect what I would HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 36 1 expect to see for file transfer rates over that 2 Ethernet, and I perhaps should have made that 3 clear. 4 Q. Okay. So what I'm trying to do, this is not a 5 trick question, I'm just trying to get it in one 6 place, with all your caveats. And I'm giving you 7 the opportunity, I want that to be clear, for you 8 to take into account any of these variables, 9 taking into account traffic on the network. 10 And what would you, in your best 11 approximation, knowing everything you know, your 12 experience, say would be the effective transfer 13 rate of file content -- 14 A. File content. 15 Q. Okay. -- using a 10 meg per second switched 16 Ethernet connection? 17 A. I would guess between one and -- between 1 and 2 18 megabits per second of the actual file. So let's 19 take an average of that: 1.5 megabits for the 20 file itself. 21 Q. Okay. 22 A. Which is actually what we got doing our math 23 here. 24 Q. Okay. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 37 1 A. Now we're going back to the 650 megabyte? 2 Q. I'm that predictable, huh? That's where we're 3 going, Mr. Craig. 4 Again, so the record is clear -- and, 5 please, part of my tedium is simply to make clear 6 the record. We may understand each other, but 7 when somebody like a judge tries to look at this 8 later -- 9 MR. GARBUS: Or Garbus. 10 MR. HART: Forget Garbus, he's not the 11 test. 12 Q. When somebody tries to make sense of this later, 13 the record has to be clear. 14 So the next question, as you rightly 15 predicted, is what kind of transfer time are we 16 talking about when we deal with a 650 megabyte 17 file using a 10 megabit per second switched 18 Ethernet connection with the effective transfer 19 rate that you just described? 20 A. Right. 21 So I would come up with an answer of 22 57 and three quarter minutes. 23 Q. Is it fair to say that 10 megabit per second 24 switched Ethernet connections are pretty commonly HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 38 1 available throughout colleges and universities 2 throughout the United States? 3 A. The technology has been widely available for 4 twenty years. That's pretty much the de facto 5 standard. 6 Q. As implemented? 7 A. As implemented. 8 Q. Let's switch to the attachment to your dec for a 9 come of minutes, Mr. Craig. This is the 10 supplement, as you call it. In there you give 11 some of the sort of technical parameters of your 12 experiments, if you will. 13 A. Right. 14 Q. Let me go to paragraph 10 where you're talking 15 about, in your words, the trace route from target 16 computer A to source computer. 17 A. Uh-huh. 18 Q. This data in the columns numbered 1 through 16 19 below paragraph No. 10 reflects 16 hops from 20 target to source; is that -- 21 A. That is correct. 22 Q. Would you say that that's a normal number of hops 23 for an efficient Internet connection between two 24 computers, on average? HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 39 1 MR. HERNSTADT: Objection to form. 2 A. I think that's actually fairly good. The two 3 computers that we used are relatively close to 4 one another in terms of Internet topology, and 5 the interlying networks are all relatively high 6 speed. 7 Q. Okay. Now, does this trace route for target 8 computer A to source computer, right, is that 9 applicable in any way to the kind of file 10 transfer that you made in example 4B of your 11 declaration? 12 A. No. 13 Q. Is there a difference between a shared network 14 and a switched network; and if so, can you 15 explain to me what that difference is? 16 MR. HERNSTADT: Objection to form. 17 A. Yes, there is a difference. The difference is 18 that in a shared network, let's take an example, 19 simplify it down to its bare bones, of three 20 computers connected to a shared network. Each 21 computer has a line, piece of network cable 22 running between it and the hub. 23 The hub is a piece of electronics that 24 merely copies everything that exists on any of HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 40 1 the lines to the other two lines so all three 2 computers see the same amount of traffic on the 3 network. They all see -- for instance, computer 4 A and B will see all communications going to 5 computer C. Computer C will see all 6 communications between computers A and B. It is 7 less efficient than a switched network, but it is 8 much more cost effective. 9 A switched network, if we take the 10 same three computers, each have a cable running 11 between the computer and the switch, the switch 12 examines each piece of traffic as it comes in, 13 each packet, and determines where it needs to go. 14 So communications between computers A and B come 15 out of the line attached to computer A, and are 16 routed to the connection attached to computer B. 17 Computer C never sees those communications. 18 Likewise, communications between computer C and 19 computer A are never seen by computer B. It's 20 much more efficient because you don't have any 21 unnecessary packets being translated. It's much 22 more expensive because the electronics has to be 23 able to recognize all the protocols being talked 24 across. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 41 1 Q. Do you have switched networks at UMass? 2 A. I have switched networks in the networks that I 3 administer. The networks in the dorms at UMass 4 are not switched, they are shared. 5 Q. Within any one dorm building -- 6 A. Yes. 7 Q. -- all of the computers are on a shared network, 8 but when you leave the dorm and treat that 9 building as one unit, are the various dorms 10 hooked up in a switched facility -- 11 A. Yes. 12 Q. -- to the network? 13 A. I'm sorry. Are you finished? 14 Q. I think we both finished the question. 15 A. In point of fact it's my understanding -- again, 16 this is not a network I administer personally -- 17 it's my understanding that each floor of a given 18 dorm has a shared network. Those shared networks 19 all have uplinks that connect to, I believe, a 20 switch, which then has a hundred megabit uplink 21 to the backbone. 22 Q. Gotcha. I think you answered that more 23 eloquently than I asked it, and I thank you for 24 that. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 42 1 So switching improves network 2 efficiency; is that correct? 3 A. Yes. 4 Q. And in that process, would one expect to see less 5 burden on a switched system than a shared system 6 for a given amount of traffic? 7 MR. HERNSTADT: Objection to the form 8 of the question. 9 A. It really depends on the traffic. If you have 10 computers talking to one another -- in other 11 words, go back to our previous example with the 12 three computers. Add in a fourth computer, or 13 the Internet, it really doesn't matter for 14 purposes of the discussion -- 15 Q. Gotcha. 16 A. -- that is on what's known as an uplink port 17 attached to the switch or the hub. 18 In the case of the switch, any traffic 19 going to or from the Internet gets routed onto 20 the Internet port, the uplink. So if all three 21 computers behind the switch are talking to the 22 Internet and getting data back, then that uplink 23 port is going to be the bottleneck. 24 Q. Gotcha. But let's take a closed system, take an HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 43 1 example where we have a file that is going to be 2 sent from one computer to another within that 3 closed system. 4 A. Okay. Are we talking about -- 5 Q. Computer A and B. 6 A. They're both behind a hub, or they're both behind 7 hubs which are attached to switches put on 8 separate networks? 9 Q. Forget the hub, they are just part of a switched 10 network. 11 By comparison, is that network going 12 to be a lot less burden than it would be if there 13 was a hub or Internet uplink or some other 14 variable in the middle of it? 15 MR. HERNSTADT: Objection to the form 16 of the question. If you understand the 17 terminology he used, go head and answer it. 18 THE WITNESS: I think I do. 19 A. Regardless of the technology in between, the two 20 computers can only transmit and receive so fast. 21 Q. Okay. What's that a function of? 22 A. That's a function of the cards and, the cards in 23 each computer, the network connecting them and -- 24 the network connecting them to the hubs, and the HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 44 1 speed at which the hub is able to -- I'm sorry, 2 you said a switch. 3 Q. Let's forget hubs. 4 A. Okay. The speed at which the switch is able to 5 write across ports. 6 In a switched network, two computers 7 talking to each other will not burden the switch 8 any more than four computers with two talking to 9 two. 10 Q. Okay. And can we do that exponentially? 11 A. How far do you want to go? 12 Q. 16 to 16? 13 A. If you have -- well, there aren't that many 14 switches -- 15 Q. Switched. 16 A. -- that -- you'd have to show me a picture of the 17 topology that you wanted to describe. This is 18 the kind of thing that drives network engineers 19 up the wall. 20 Q. Excellent. I'm glad I'm finally getting to you. 21 We say that in jest, because everyone is smiling. 22 A. Providing for the instance in which computer A is 23 talking to computer Z is a separate equation from 24 the instance in which computer A is talking to HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 45 1 computer B, if there are, for instance, two 2 levels of switches in between. And it's not fair 3 to say that if there are two levels of switches 4 in between A and Z, that A and Z talking to each 5 other is not going to burden B and Y talking to 6 each other. 7 MR. HERNSTADT: Why don't we take 8 five. 9 MR. HART: This is a good opportunity. 10 I'm sorry for the interruption. 11 (Brief recess.) 12 BY MR. HART: 13 Q. Have you ever visited the 2600 web site? 14 A. I may have done. I spend half of my working day 15 looking for things on the Internet in order to 16 solve problems at work. I couldn't tell you 17 every site that I visited in the last month, let 18 alone the last five years. 19 Q. You have no specific recollection as a result of 20 your involvement in this case -- 21 A. Unless I followed -- 22 Q. Let me finish my question for the record. 23 You have no specific recollection of 24 having gone to 2600's web site? HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 46 1 A. Unless I followed a link to a page archived there 2 related to the proceedings, which would have been 3 within the site and not the front page. 4 Q. How did you first get involved in this case? 5 A. I believe we've gone over that, but I'll answer 6 it again. 7 MR. HERNSTADT: Go ahead. 8 Q. Well, let me phrase the question a little 9 differently, because I don't think we did. 10 Did you contact the Defendants or did 11 the Defendants or their lawyers contact you? 12 A. The Defendants, or their lawyers in this case, 13 contacted me. 14 Q. And who contacted you? 15 A. Initially Wendy Seltzer acting, I believe, as 16 liaison for Ed Hernstadt. 17 Q. And who is Wendy Seltzer? 18 A. She is the originator of the Open Law Forum at 19 Harvard, which at that point I was a subscribed 20 member of, the discussion list. 21 Q. Can you tell me how many communications you've 22 had with Mr. Hernstadt or his law firm since the 23 first communication with him? 24 A. I'd have to sit down and look. It was mostly HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 47 1 E-mail. I'd have to sit down and look at them to 2 give you an exact number. I would say a handful, 3 fewer than 20, possibly more than 10. 4 Q. Was your communication with Mr. Hernstadt 5 exclusively by E-mail? 6 A. We had a couple of phone calls. 7 Q. "A couple" meaning two or three? 8 A. Two or three. 9 Q. But apart from two or three phone calls, all of 10 your other communications with Mr. Hernstadt were 11 via E-mail? 12 A. That's correct. 13 Q. Do you have those E-mails with you? 14 A. Actually, those E-mails I do not, but I can get 15 them for you. Depending on what kind of network 16 there is in this building, I could even do that 17 this afternoon, but I can't promise that. I do 18 have the E-mail that I have sent to the DVD 19 discussion list with me on a floppy disk. 20 MR. HERNSTADT: Off the record for a 21 second. 22 (Discussion off the record.) 23 Q. I'm sorry, you said you did have on a floppy with 24 you what, Mr. Craig? HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 48 1 A. I have a floppy containing the text of my 2 declaration as I submitted it to Mr. Hernstadt. 3 It also has all of the messages that I've sent to 4 the DVD discussion list, which I thought you 5 might want for some reason. 6 Those are the only things of the DVD 7 discussion list over which I feel I have the 8 right to hand over in terms of giving you 9 documents that are relevant to the case. 10 Q. Is this discussion list a public forum? 11 A. Yes. This is all available online. 12 Q. If I got online, I could get whatever you 13 submitted? 14 A. That's correct. 15 Q. Are you aware that there are at least two CSS 16 licensed Linux players at present? 17 A. I am aware that people have said that there are 18 Linux CSS licensed players. However, I have not 19 seen any evidence of one for sale or for download 20 anywhere, and believe me, I looked. So the 21 answer to your question is that in my opinion 22 they are what's known in the industry as 23 vaporware. 24 (Discussion off the record.) HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 49 1 Q. To your knowledge, is DeCSS itself a DVD player? 2 MR. HERNSTADT: Objection to form. 3 A. So as part of that question it sounds like you're 4 asking me what a DVD player is. 5 Q. No, I'm just asking you whether DeCSS in and of 6 itself is a DVD player? 7 A. In the sense that it does not output files to the 8 screen by itself, I couldn't say that it is. 9 Q. To your knowledge, is there currently available 10 an unlicensed Linux-based DVD player available? 11 And by "unlicensed," I mean one not licensed by, 12 to use CSS? 13 A. The Linux DVD project, LiViD is how it's 14 acronymized, with a capital L, a capital V, a 15 capital D and smaller case Is, will play video 16 from DVDs. It is not perfect in that the frame 17 rates are not -- the quality overall is not what 18 you would see on a well-installed Windows system 19 as an example. The audio can be out of sync at 20 times. Still very much in beta, if that is 21 appropriate. It's a term of art meaning software 22 that's not really ready for complete release. 23 Q. So to go back to my question, can you give me an 24 answer? HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 50 1 A. It's available. It is a DVD player. It's not a 2 fully functional DVD player. 3 Q. Have you used it? 4 A. To some degree, yeah. I've seen the quality of 5 what it puts out. 6 Q. Where did you get it from? 7 A. The LiViD download tree. 8 (Discussion off the record.) 9 Q. Do you know if this beta version of a Linux DVD 10 player incorporates DeCSS software? 11 A. I have not looked at the source code to see what 12 is there and compare it to DeCSS. It is my 13 understanding that the portion of the Linux DVD, 14 the portion of the LiViD project that does the 15 reading of the DVD, including the descrambling 16 part of the -- 17 Q. Decryption? 18 A. I don't want to use either of those words, 19 really, because it's not quite what it does. But 20 the transfer of the files on the DVD into a 21 readable format was written at about the same 22 time, the first version was written at about the 23 same time DeCSS came about, and I am given to 24 understand, based on the mailing list of the HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 51 1 development project, that the guy who wrote that 2 code, a fellow by the name of Derek Fawcus, 3 communicated to a great extent with John 4 Johansen, the fellow who apparently first posted 5 DeCSS, and that there is evidence of -- what's a 6 good word -- cross fertilization between the code 7 bases. At one point DeCSS was included as part 8 of the CVS repository that one could use to build 9 Linux DVD, LiViD. 10 Q. CVS standing for what? 11 A. Concurrent Versioning System. It's a method to 12 maintain a code base such that multiple people 13 can download it, work on it, make changes, fix 14 bugs, upload it again, and then merge the various 15 version into a coherent whole. 16 Q. You yourself are not a participant in the LiViD 17 project? 18 A. I am not a participant. I have not modified any 19 code; I have not submitted anything to it. 20 Q. You said there's a mailing list of LiViD 21 participants; is that right? 22 A. Yes. 23 Q. So it would be quite possible to exchange 24 information among LiViD participants within that HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 52 1 group without necessarily posting that 2 information to the public, the general public? 3 MR. HERNSTADT: Objection to the form 4 of the question. 5 A. Not really. The way that an open source 6 development model works is that you put what 7 you've got in a public place, and anyone can come 8 and work on it. And anyone who has an idea that 9 looks like it works, that idea gets incorporated 10 into the development tree. 11 Q. Gotcha. 12 A. The whole point of being an open source model is 13 that there are many more eyes to look at the 14 code, and, therefore, bugs are found much, much 15 faster. This is one of the reasons Linux has 16 exploded in the last five years. 17 Q. How does one get onto the LiViD mailing list? 18 A. One sends an E-mail to the LiViD mailing list 19 server saying, "subscribe me to the list." 20 Q. Have you subscribed to the list? 21 A. I have not. 22 Q. But if, for example, you had something to 23 contribute in this context, you could get on that 24 list? HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 53 1 A. Uh-huh. Or even if I was just curious. 2 Q. You could get on the list? 3 A. Yes. There's no restriction on access. 4 Q. You described a few moments ago in your testimony 5 what Mr. Fawcus did or didn't do and what Mr. 6 Johansen did or didn't do. How do you know that? 7 A. I have seen excerpts from the archives of that 8 list. I've also seen excerpts of interviews with 9 Mr. Johansen and statements attributed to Derek 10 Fawcus, but I cannot state with absolute 11 certitude that what I saw was a true 12 representation of events. 13 Q. Okay. That's fair. 14 Have you seen the declaration of Chris 15 Moseng in this case? 16 A. Yes. 17 Q. Do you know Mr. Moseng? 18 A. Nope. 19 Q. Have you ever spoken with him? 20 A. No. We've exchanged E-mails. 21 Q. That was going to be my next question. 22 A. Okay. 23 Q. You've exchanged E-mails? 24 A. Yes. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 54 1 Q. What was the subject of those E-mails? 2 A. He also did some file transfer testing, and at 3 one point he sent me mail indicating the results 4 of his testing and comparing it with mine, and 5 made some comments about, made some comments as 6 to the direction he was going to take in his 7 declaration. 8 Q. And what did he say to you about that? 9 A. I don't at this time recall. I'd have to look at 10 the E-mail again. Again, you're more than 11 welcome to it if you need it. 12 Q. Can you produce it to me right now? 13 A. I cannot. It didn't occur to me that it would be 14 material. 15 Q. Okay. Did you review the document request with 16 Mr. Hernstadt or Mr. Garbus prior to your 17 appearing here today? 18 A. We talked about it when I was in the offices 19 here, but we didn't really talk about it before 20 then, to my recollection. I could be wrong. 21 Q. Are they representing you for the purpose of this 22 deposition? 23 A. Yes. 24 Q. Were you asked by them to bring any documents HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 55 1 responsive to the document request to this 2 deposition? 3 A. No. 4 Q. Is it your understanding that under the subpoena 5 you were required to bring with you certain 6 documents called for by the document demand? 7 A. It was my understanding I was going to give 8 testimony related to the document that I had 9 already submitted, the declaration, and as to 10 facts in my head. I brought other things with me 11 as they occurred to me, just in case. 12 Q. Did you get any advice from Mr. Hernstadt or Mr. 13 Garbus about what you were or were not supposed 14 to bring to the deposition? 15 MR. HERNSTADT: You can answer that. 16 A. Not to my recollection, no. 17 Q. When did you first engage Mr. Garbus's firm to 18 represent you? 19 MR. HERNSTADT: Object to the form of 20 the question, assumes facts not in evidence. 21 A. I did not act to engage Mr. Garbus's firm. It 22 was my understanding that for the purposes of 23 this declaration, they would be representing me 24 insofar as I am giving evidence on their behalf. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 56 1 MR. HERNSTADT: You mean declaration 2 or deposition? 3 THE WITNESS: Deposition. I'm sorry. 4 Thank you. 5 Q. Are you saying that you chose yourself to read 6 the subpoena and decide what or what you did not 7 have to bring here today? 8 MR. HERNSTADT: Objection to the form 9 of the question. 10 A. I believe Ed told me this morning on the phone 11 that -- that's not quite the question you asked. 12 No, I don't think so. 13 Q. No, you don't think what? 14 A. No, I don't think that I made the decision as to 15 what to bring and not to bring entirely on my 16 own. 17 Q. Then who did? 18 A. I believe that I talked to Mr. Hernstadt this 19 morning about it. 20 Q. So you were advised as to what you were 21 responsible for bringing or not bringing to the 22 deposition by Mr. Hernstadt; is that correct? 23 MR. HERNSTADT: Objection to the form. 24 A. Yes. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 57 1 MR. HART: You can object, you're 2 right. 3 Q. Now I want the answer. 4 A. I think so. 5 Q. You think so? 6 A. Yes. 7 Q. Is "yes" an affirmative answer? 8 A. Yes. 9 Q. Thank you. 10 MR. HART: Let's take three minutes 11 here. Excuse me. 12 (Discussion off the record.) 13 Q. So you did have communications with Mr. Moseng 14 via E-mail regarding his testimony. Did you also 15 have communications with him concerning yours? 16 MR. HERNSTADT: Objection to the form. 17 It misstates the testimony. 18 A. I'm also curious, are we on the record? 19 Q. We are absolutely on the record. 20 A. You just said that you wanted to take three 21 minutes. 22 Q. We were only taking three minutes because we got 23 interrupted. I think we're back on the record. 24 A. I'm sorry. I misunderstood. Could you restate HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 58 1 the question? 2 MR. HERNSTADT: Could you read it 3 back? 4 (Question read.) 5 MR. HERNSTADT: And you got my 6 objection. 7 A. Only to the extent that I mentioned my 8 methodologies, and I think I mentioned a choice 9 piece of phrasing that I plan to use. 10 Q. Which was? 11 A. The orange juice analogy. 12 THE WITNESS: Can we take a couple of 13 minutes? 14 MR. HART: Sure. 15 THE WITNESS: I think I need to talk 16 to Ed about some stuff. I don't understand the 17 legal terms that are being used, so I want to 18 make sure I'm not answering incorrectly, if I 19 may. 20 MR. HERNSTADT: Yeah, come on. 21 (Witness and Mr. Hernstadt leave room.) 22 BY MR. HART: 23 Q. Do you wish to change any of your answers in view 24 of your conversation with Mr. Hernstadt? HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 59 1 A. No, thank you. 2 Q. Have you had occasion to see a declaration filed 3 in this case or produced in this case by a Dr. 4 Michael Shamos? 5 A. Yes, I have. 6 Q. And when did you first see that? 7 A. A few days ago. Less than a week. 8 Q. And how did you come to first see that? 9 A. It was mentioned on the dvd-discuss mailing list. 10 Q. Again, just because I'm old and my memory is 11 starting to fail me, this is the Harvard group? 12 A. That's the Harvard group. 13 Q. Thanks. 14 And what was said regarding it? 15 A. The first mention of it was John Young saying 16 that it was available in Cryptome. Therefore the 17 members of the list, myself included, looked at 18 various statements that Dr. Shamos had made and 19 tried to figure out where they had come from, how 20 he had come to the conclusions he had come to, 21 and whether his figures, opinions and conclusions 22 really bore weight, in our opinion, our 23 collective opinion, being the list. 24 Q. I see. Well, let me ask you this: Insofar as HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 60 1 you're concerned, what are your conclusions 2 concerning Dr. Shamos's conclusions? 3 MR. HERNSTADT: Are you going to show 4 him the declaration? 5 MR. HART: No, right now I don't think 6 we need to. 7 A. I find it surprising that he presented an 8 experiment which is not reproducible. By that I 9 mean that there are too many things left out -- 10 and I don't think that this was a case of things 11 being blacked out by counsel -- too many things 12 left out in order to faithfully reproduce the 13 circumstances and equipment of his experiment. 14 Q. Like what? 15 A. I'd have to look at the declaration again to be 16 sure of all of the items, but -- 17 MR. HERNSTADT: If you want the 18 declaration, you can have it. 19 MR. HART: He said "but." 20 Q. Do the best to answer it without the declaration. 21 MR. HERNSTADT: Fine. I'll tell him 22 the same thing. If you can answer without, go 23 ahead. If you want the declaration, you should 24 ask for it. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 61 1 MR. HART: Thank you, Ed. 2 A. In particular he talks about compressing a DVD 3 into a DivX, and then gives a transfer time for 4 that DivX without stating what size the resulting 5 DivX was. So "I transferred something and it 6 took this long," but the "something" wasn't 7 really defined. 8 It states that everything was done by 9 himself or his assistants acting at his 10 direction. The assistants' expertise is not 11 assessed, and there are questions as to what was 12 done by whom when. 13 There are obviously portions of the 14 chat log, the IRC chat log that are redacted in 15 some way. 16 Q. Why is that a concern? 17 A. There are -- they're talking about how they're 18 going to do something, and there are pieces of 19 that conversation missing. 20 Q. Pieces of conversation missing, or simply the 21 identity of one of the participants? 22 A. No, I don't know what's missing, because it's 23 missing, but there are pieces of the conversation 24 that are not there, and it's obvious, by trying HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 62 1 to follow the flow of conversation, that the flow 2 is interrupted. One of those pieces specifically 3 refers to how the transfer is going to be 4 accomplished. That can be somewhat inferred from 5 context. 6 I had one more thought at the 7 beginning of this and now I've lost it. 8 Oh, yes. The file that he downloaded 9 in trade from his unknown accomplice on the 10 Internet, we don't know how it was produced, 11 where was the DivX from, did it actually have its 12 origin in a DeCSSed DVD, and if so, how does he 13 know that. And if not, why is it relevant? 14 You'll have to forgive those of us who 15 are amateurs and not lawyerly, we do a great deal 16 of speculation on this list as to things. Some 17 of it probably seems pretty foolish. 18 Q. I'm not making any judgment about what's foolish 19 and what's not, I'm just trying to get at the 20 truth here. 21 A. Okay. 22 Q. Did you ever hear of Dr. Shamos before? 23 A. No. 24 Q. Does it surprise you that people are trading DivX HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 63 1 files of movies on IRC or in other locations via 2 the Internet? 3 MR. HERNSTADT: Objection to the form 4 of the question. 5 A. I'm not certain why I should be surprised at 6 people transferring files. I guess I really 7 don't understand your question. 8 MR. HART: Read the question back, 9 please. 10 (Question read.) 11 MR. HERNSTADT: I'll also object 12 because it assumes facts not in evidence. If you 13 can answer it, go ahead. 14 A. File transfer is essentially the function of the 15 Internet. It does not surprise me to find that 16 files are being transferred on the Internet. 17 Q. How about files of movies? 18 A. Movies are files, just like anything else. 19 Q. (*) If, for example, someone used DeCSS to -- I 20 think "unscramble" is the preferred word in your 21 lexicon, rather than "decrypt"? 22 A. Not really, but I haven't found a good word. 23 "Reformat," perhaps. 24 Q. For the sake of the question, we'll use the word HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 64 1 "reformat." 2 -- to reformat a DVD movie that was 3 CSS encoded -- with me so far? 4 A. Uh-huh. 5 Q. -- and processed it by DivX to compress it, okay, 6 and made that movie file available on the 7 Internet, would you regard that as -- without 8 permission of the owner of the rights of the 9 movie, would you regard that as a normal function 10 of the Internet? (**)? 11 MR. HERNSTADT: Objection to the form 12 of the question, it's an incomplete hypothetical, 13 calls for legal conclusion. If you can answer 14 it, go ahead. 15 A. I'm sorry, can you read back the question. 16 (Record read from * to **.) 17 A. No, because the actions that you describe are not 18 part of the Internet, they were actions on the 19 part of an individual. 20 Q. Okay. We were talking during the break about 21 Napster and different views, and I'm not going to 22 repeat any of that conversation on the record 23 here, but I guess more to the point right now, 24 I'm going to ask you what your views of the HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 65 1 propriety of file sharing of movies on the 2 Internet is based on the hypothetical I just gave 3 you; namely, the DeCSSed DivX movie put up on the 4 Internet, made available to others, without 5 permission of the copyright owner. Is that okay 6 or not okay in your book? 7 MR. HERNSTADT: Objection to the form 8 of the question, compound, assumes facts not in 9 evidence, calls for a legal conclusion. 10 A. I guess it would have to depend on many things. 11 I would want somebody else's opinion, probably 12 one of the gentlemen in this room at the least, 13 as to whether the file available for download, 14 that this person made available for download, was 15 in fact a copyright violation. I am given to 16 understand that there are cases in which that 17 might not be the case. 18 If it's not a copyright violation, 19 then of course I'm okay with it. If it is a 20 copyright violation, then it's my view that such 21 things occur and are pursued by, again, people 22 like the gentlemen in this room, for copyright 23 violation, and that there are many ways to 24 prohibit people from doing that or deter people HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 66 1 from doing that, I guess is the best word, and 2 existing copyright law takes care of that very 3 nicely. 4 And in that regard, once copyright 5 infringement has been alleged, then it's up to 6 the people who have the beef about it to go after 7 the person who posted it originally. 8 Q. Why is it that you don't like to refer to DeCSS 9 as a decryption device? 10 A. I'm not an encryption expert. 11 Q. Okay. Accepted. 12 A. But I do know a great deal about its practical 13 use. And if I had a dictionary in hand, I'd look 14 up the definition of "encryption," but it 15 involves the mixing of a piece of what we'll call 16 text in this discussion, with a secret; and in 17 order to get the text back in a readable form, 18 you have to know the secret. 19 And as a matter of accepted fact among 20 cryptologists, as I understand it, the secret 21 can't be part of the entire thing that you are 22 decrypting; the secret has to be applied in some 23 other manner. 24 Again, as I understand it, a DVD HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 67 1 contains the keys which are necessary to 2 unscramble its message right on the DVD, and so 3 it is possible, by examining the DVD, and with no 4 other information, to find what is there. So 5 it's just taking what's on the DVD and 6 rearranging it so that it's readable by an MPEG 7 player. That's not decryption. 8 Q. Have you ever tried to ascertain or access the 9 keys in a DVD? 10 A. I have not. 11 Q. Do you believe that there's a greater potential 12 for infringement when you are dealing with 13 digital media and the Internet than with analog 14 copies and nonelectronic transmission? 15 MR. HERNSTADT: Objection, calls for 16 legal conclusion, calls for speculation, assumes 17 facts not in evidence. If you can answer the 18 question, go ahead. 19 A. I don't believe so. Certainly not with the 20 current state of technology. 21 Q. So, for example, the phenomenon that's known as 22 Napster is not, in your view, the product of 23 technology and poses no greater threat of 24 unauthorized copying than existed before MP3 and HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 68 1 before file sharing and before the Internet? 2 MR. HERNSTADT: Objection, misstates 3 the testimony. 4 A. I believe that there is an ongoing lawsuit to 5 determine whether that's legal. I certainly 6 couldn't comment. 7 Q. I'm not asking you to comment whether it's legal. 8 I'm asking you whether the technology enables the 9 proliferation of copies, given both the digital 10 nature of the content, the format that it's in 11 digitally, and also given the facility to 12 transmit things over the Internet electronically? 13 MR. HERNSTADT: Object to the form of 14 the question. What are you talking about? I 15 mean, I can't actually let him answer that. Are 16 you talking about MP3 or are you talking about 17 movies? 18 MR. HART: Do you want to instruct 19 him? 20 MR. HERNSTADT: Yeah. Don't answer 21 the question unless you understand what he's 22 talking about. 23 THE WITNESS: Okay. 24 A. I don't think that I'm certain enough of what HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 69 1 you're asking to answer the question. 2 Q. Before you got Mr. Hernstadt's instruction, would 3 you have been willing to answer the question? 4 A. I would have been willing to engage in a dialogue 5 with you to try to understand the question. 6 Q. Okay. Then let's take it one step at a time. 7 A. Okay. 8 Q. My focus is not on legalities. I'm not asking 9 you to draw a conclusion about whether the 10 behavior is legal or illegal. I'm simply asking 11 you whether, as a practical matter, the 12 technology as it exists today enables the 13 proliferation of content in a way that is a 14 greater threat because of both the digital format 15 and the ease of transmission on the Internet? 16 And if you want to break down your answer 17 differently with respect to audio and video 18 recordings, you may do so. 19 A. With respect to audio recordings and MP3 files, 20 from what I have read about the ongoing trial, 21 there is no evidence whatsoever that harm has 22 been suffered, that people are actually copying 23 recorded music and deciding not to buy authorized 24 works because they have the copy. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 70 1 Q. You appreciate that isn't my question. You're 2 not answering my question. Are you doing that 3 deliberately, or is it because you don't 4 understand it? 5 MR. HERNSTADT: Objection, harassment. 6 Q. Would you like to have the question read back to 7 you so you can answer the question I asked? 8 MR. HERNSTADT: Objection, harassing 9 the witness. Bill, just do it right. 10 MR. HART: Let's have my question read 11 back. I'll ask you to listen very carefully to 12 the question before you answer it. I'd like you 13 to answer my question, please. Okay? Thank you. 14 (Question read.) 15 Q. I see where you went astray on that one. I 16 apologize. The "greater threat" is what led you 17 to talk about economic harm. 18 I want to, again, confine my question 19 to simply the ability to multiply files and to 20 transmit them, and that there is a difference 21 given the digital medium and the availability of 22 the Internet to multiply files and transmit them 23 more readily given the technology that exists 24 today. That's the question. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 71 1 MR. HERNSTADT: To my prior objections 2 let me add Mr. Cooper's favorite question, 3 unintelligible. 4 Q. Do you understand the question? 5 MR. HERNSTADT: Go ahead. 6 A. I think so. 7 The Internet, as a part of its 8 function, enables file transfer more easily than 9 was previously possible. As to whether that is a 10 threat -- 11 Q. I'm taking "threat" out of the equation. 12 A. Okay. 13 Q. Okay? (*) Does compression technology facilitate 14 file transfer on the Internet? 15 MR. HERNSTADT: Objection to the form. 16 Go ahead. 17 A. In answering this question, I'd like to point out 18 that there are two broad categories of 19 compression technology: One is called, generally 20 speaking, lossless, and the other is called 21 lossy. Lossless compression technology does 22 facilitate file transfer on the Internet because 23 you get out of a lossless compression exactly 24 what you put into it. You are able to restore HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 72 1 the full meaning of what you put into the 2 compressor. 3 Q. Is MP3 lossy and/or lossless? 4 A. MP3 is lossy. MP3 is lossy and DivX is lossy, 5 but we'll just talk about MP3. 6 The recording that you get by 7 listening to an MP3 is qualitatively different: 8 It is lesser than what you put into the MP3 9 recorder from the CD, which is, in turn, less 10 than what could be heard at the recording studio. 11 MR. HART: Why don't you read back the 12 question before the lossy versus lossless. 13 (*Question read.) 14 Q. Same question. 15 A. Can you please define -- 16 MR. HERNSTADT: Sorry. Objection, 17 asked and answered. 18 A. Can you please define "facilitate" and "file 19 transfer," because in terms of compression 20 technology, if we're talking about a lossy 21 compression, you can't get back the stuff that 22 was lost during compression, so if you need an 23 exact copy of the original, it's not there, so 24 that's not facilitated. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 73 1 Q. (*) Is it your belief the people who are using 2 Napster are deterred from using it because it 3 involves lossy compression? 4 MR. HERNSTADT: Objection. Objection 5 to the form of the question. It's well outside 6 the declaration here. If you have an opinion. 7 A. Napster doesn't enable compression at all. 8 Napster is just file transfer. 9 Q. I understand. Let's read that one back -- we'll 10 do it the long way -- because you're under oath 11 here. 12 A. Uh-huh. 13 Q. You have to answer my questions. 14 MR. HERNSTADT: He is answering your 15 questions, Bill. He answered the question about 16 facilitate. Go back and read that answer. He 17 said, if it's lossy, it does not facilitate. He 18 answered your question, Bill. It wasn't quite 19 the answer you want. 20 MR. HART: Enough, Ed. 21 MR. HERNSTADT: You are badgering the 22 witness at this point. 23 MR. HART: Ed, enough. Let's read 24 back the question. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 74 1 (*Question read.) 2 Q. Is Napster an MP3 centric system? 3 MR. HERNSTADT: Objection to the form. 4 A. The way it's currently being used, it's being 5 used to transfer MP3s. 6 Q. And you've testified that MP3 is a lossy 7 compression device, correct? 8 A. That's correct. 9 Q. (*) So my question is: Do you think people who 10 are using Napster are deterred because it 11 involves the use of a lossy compression device? 12 A. I think the reason I'm having trouble answering 13 this question is that you're asking about people 14 using MP3s, but you're using the word "Napster," 15 and it's not equivalent. 16 Q. We'll do it again, then. 17 MR. HERNSTADT: Bill, listen -- 18 MR. HART: I don't want you testifying 19 because we're going to get into a real problem. 20 MR. HERNSTADT: I want to put 21 something on the record. 22 MR. HART: Then I want the witness to 23 walk out of the room. 24 MR. HERNSTADT: You have no idea what HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 75 1 I'm going to say. 2 MR. HART: I don't want you coaching 3 the witness. 4 MR. HERNSTADT: I'm not coaching the 5 witness, Bill, what I'm doing is coaching you. 6 You can take this deposition any way you want to. 7 I'm permitting you to go well outside the scope 8 of anything that's relevant or reasonable because 9 I want this witness to be finished and be 10 reasonable. You have to be polite. Don't badger 11 the witness. Okay? You can do it the long way, 12 you can do it the short way, but do it nice 13 either way. 14 MR. HART: Are you done, Mr. 15 Hernstadt? 16 MR. HERNSTADT: I'm done. You can 17 continue now. 18 MR. HART: Thank you. 19 MR. HERNSTADT: You're welcome. 20 MR. HART: Read the last question 21 back. 22 (*Question read.) 23 MR. HERNSTADT: Restate my objections. 24 Q. Do you want to answer the question? HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 76 1 A. I think that people who are using MP3s know that 2 they are using a lossy compression algorithm, and 3 accept that as part of the usefulness of MP3s. I 4 think that people who are using Napster to 5 transfer MP3s have already accepted that. 6 Q. Uh-huh. So the answer to my question whether the 7 use of lossy compression, as you call it, has 8 deterred people from using it in the context of 9 MP3 compression as it's used in Napster file 10 transfer protocol is, no, it hasn't deterred 11 people just because it's lossy compression, 12 right? Isn't that the answer? 13 MR. HERNSTADT: Objection. You are 14 badgering the witness again, Bill. He can answer 15 the way he wants to. Asked and answered. 16 A. I would say that that question leaves out the 17 fact that people who don't want to use MP3s are 18 already not use being MP3s and therefore are not 19 using Napster. So the people using Napster are 20 obviously not deterred because they're not the 21 ones who decided MP3s are not good enough. 22 Q. Do you know how many people that comprises? 23 A. I have no idea. 24 Q. In the millions? HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 77 1 MR. HERNSTADT: Objection, asked and 2 answered. 3 MR. HART: I'm sorry? 4 MR. HERNSTADT: Objection, asked and 5 answered. 6 A. I do not know. 7 Q. Are there any other areas that you contemplate 8 testifying on at trial that we have not already 9 discussed here today in your testimony? 10 A. I really have no idea how I will be useful to 11 either side in my testimony. I've certainly not 12 had any discussions with Mr. Garbus or Mr. 13 Hernstadt regarding how I would testify. I 14 didn't really know for sure until today that I 15 would be testifying. 16 Q. Do you consider yourself an impartial witness? 17 MR. HERNSTADT: Objection to the form 18 of the question. Go ahead. 19 A. To the best of my knowledge, I would be 20 testifying to facts. I don't see how one can be 21 partial to facts. 22 Q. How much storage capacity do you have on your 23 home computer? 24 A. On the largest computer, I have 40 gigabyte hard HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 78 1 disk. 2 Q. What did that cost you? 3 A. Three months ago, I think -- no, closer to five 4 months ago, it cost me between $250 and $300. 5 Q. And is the time at which you purchased that hard 6 drive relevant to its cost? 7 A. Hardware prices tend to go downwards over time. 8 Q. Ever hear of Gnutella? 9 A. You're talking about Gnutella with a G in front 10 of it? 11 Q. Yes. 12 A. Yes, I have. 13 Q. What is it? 14 A. It is the same idea as Napster in terms of a file 15 sharing protocol, but it's decentralized. 16 Q. Do you know why it's decentralized? 17 A. You're asking me to speculate on the design 18 decisions of the programmers, and I haven't seen 19 any statements by the programmers. 20 Q. Is there a technical reason or some other reason, 21 based on your knowledge, as to why it would be 22 designed to be decentralized? 23 A. For the same reason the Internet is 24 decentralized. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 79 1 Q. Which is? I'm sorry? 2 A. It eliminates a single point of failure. 3 Q. You said a little bit earlier when we were 4 talking about hypotheticals about file transfer 5 of movies, and you raised an issue about 6 copyright protection, that you were "given to 7 understand," I think you used the words, that 8 there may not be copyright on some, or something 9 like that. I'm not interested in pinning you 10 down on that particular thing than I am in trying 11 to understand "given to understand." If you need 12 to repeat your testimony so you understand -- 13 MR. HERNSTADT: Can you read back the 14 question, please. 15 THE REPORTER: I'm sorry, which 16 question? 17 MR. HART: I'll rephrase the question, 18 just in the interest of moving it along. You 19 look tired, Ed. 20 MR. HERNSTADT: Thank you. I'm just 21 confused by that question. 22 Q. Do you recall earlier when we were talking about 23 file sharing and video, you made a distinction 24 between that which was copyrighted and that which HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 80 1 was not, or that which amounted to copyright 2 infringement and that didn't. Do you recall 3 making that distinction? 4 A. I do recall making that distinction. That's very 5 different from copyright protection. 6 Q. You said something to the effect you were given 7 to understand in certain instances file sharing 8 of content on the Internet was not copyright 9 infringement. I don't want to misstate what you 10 said, so correct me if I'm wrong. Is that what 11 you said? 12 A. That is what I said. 13 Q. When you say you were "given to understand" that 14 in such instances, based on what? 15 A. I believe this was regarding a discussion of the 16 brief in the Napster case by David Boies -- how 17 do you say that? 18 Q. You've said it correctly. 19 A. Boies. 20 -- wherein he makes an argument that 21 under the law regarding copyrights, that sharing 22 of copyrighted works between noncommercial 23 parties is not necessarily copyright 24 infringement. HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 81 1 Q. Okay. Do you share that view? 2 A. I -- that's a legal conclusion. 3 Q. No, no, I'm not asking you for a legal 4 conclusion. I'm asking you if that's your view, 5 if you adopt that view, if you personally feel 6 like that's correct? 7 MR. HERNSTADT: Which question do you 8 want him to answer? 9 (Discussion off the record.) 10 MR. HERNSTADT: State which question 11 you're answering when you answer it. 12 A. I'm sorry, can you read back the -- 13 Q. I asked you if you shared that view? 14 A. I understand you asked me if I shared that view. 15 I'm asking her to read back the record so that I 16 can understand which view I'm sharing. 17 Q. Mr. Boies's view that file sharing is not 18 infringement, that it's okay if it's done as you 19 describe it? 20 A. I think that -- I'm sorry. 21 MR. HERNSTADT: Let me object to this 22 entire line of questioning as calling for legal 23 conclusions. Go ahead. 24 Q. We've been over that ground. I'm not asking for HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 82 1 a legal conclusion, I'm asking you if that result 2 is something you approve of, if you think that's 3 okay, if that's right in your gut? 4 A. As I the lay person understand it? 5 Q. As a lay person involved in computers, involved 6 in networks, who put in a declaration in this 7 case and participates to the degree that you 8 participated in these issues, yes, as a lay 9 person. 10 A. Okay. 11 Q. Okay. 12 A. I'm sorry, I have a habit of speaking where I 13 sometimes pause in the middle. That was such a 14 pause. 15 As I, a lay person, understands it, 16 copyright is solely for the promotion of science 17 and the useful arts, I think is the original 18 phrase. And to that end, Congress gives 19 copyright to authors and creators so they may be, 20 so that they are given incentive to keep on 21 writing and creating. And that in order for 22 copyrighted works to be of use to the rest of us 23 who didn't write them or create them, that 24 something called fair use exists where one makes HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 83 1 use of the copyrighted work, and such use is 2 inherently not copyright infringement because 3 it's fair use. And if I understand Mr. Boies 4 correctly, there are instances in which sharing 5 of copyrighted works is fair use and therefore 6 not infringement. 7 MR. HART: I don't think I have 8 anything further for you, Mr. Craig, and I thank 9 you for your patience. And I apologize for the 10 difficulties in communications here today. I'm 11 sure it was my fault, not yours. 12 MR. GARBUS: I agree. 13 MR. HERNSTADT: We're done? Thank 14 you. Thank you, Mr. Craig. 15 (Whereupon, at 6:22 p.m., the 16 deposition was adjourned.) 17 18 19 20 21 22 23 24 HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 84 1 C E R T I F I C A T E 2 I, OLEGARIO L. CRAIG, do hereby certify that I have read the foregoing transcript of my 3 testimony given on July 5, 2000, and I further certify that said transcript is a true and 4 accurate record of said testimony (with the exception of the corrections listed below): 5 Page Line Correction 6 7 8 9 10 11 12 13 14 15 16 Dated at , this day of , 2000. 17 18 OLEGARIO L. CRAIG 19 20 SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY 21 22 23 24 HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874 85 1 C E R T I F I C A T E 2 3 COMMONWEALTH OF MASSACHUSETTS 4 SUFFOLK, SS. 5 I, Loretta Hennessey, Registered Merit 6 Reporter and Notary Public in and for the 7 Commonwealth of Massachusetts, do hereby certify: 8 That OLEGARIO L. CRAIG, the witness whose 9 testimony is hereinbefore set forth, was duly 10 sworn by me and that such testimony is a true and 11 accurate record of my stenotype notes taken in 12 the foregoing matter, to the best of my 13 knowledge, skill and ability. 14 IN WITNESS WHEREOF, I have hereunto set 15 my hand and Notarial Seal this 6th day of July, 16 2000. 17 18 19 20 Loretta Hennessey, RMR 21 Notary Public 22 23 My Commission Expires: 6/10/05 24 HENNESSEY CORP., D/B/A ROBERT H. LANGE CO. 617-523-1874