14 June 2000. Thanks to Anonymous.
See also Part 2 of the deposition: http://cryptome.org/mpaa-v-2600-kj2.htm
See related files:
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 17, 2000 15 9:45 a.m. 16 17 DEPOSITION of KENNETH A. JACOBSEN, 18 held at the offices of Frankfurt Garbus 19 Klein & Selz, P.C., 488 Madison Avenue, New 20 York, New York, pursuant to Order and 21 Notice, before ELIZABETH SANTAMARIA, a 22 Notary Public of the State of New York. 23 24 Reported by: ELIZABETH SANTAMARIA 25 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: SCOTT P. COOPER, ESQ. 9 10 FRANKFURT GARBUS KLEIN & SELZ, P.C. 11 Attorneys for Defendants 12 488 Madison Avenue 13 New York, New York 10022 14 BY: MARTIN GARBUS, ESQ. 15 - and - 16 EDWARD HERNSTADT, ESQ. 17 ALSO PRESENT: 18 Motion Picture Association 19 Mark D. Litvack, Esq. In-house Counsel 20 --o0o-- 21 22 23 24 25 INTERIM COURT REPORTING 3 1 2 --o0o-- 3 4 IT IS HEREBY STIPULATED AND AGREED by 5 and between the attorneys for the 6 respective parties herein that filing and 7 sealing be and the same are hereby waived. 8 IT IS FURTHER STIPULATED AND AGREED 9 that all objections, except as to the form 10 of the question, shall be reserved to the 11 time of the trial. 12 IT IS FURTHER STIPULATED AND AGREED 13 that the within deposition may be sworn to 14 and signed before any officer authorized to 15 administer an oath, with the same force and 16 effect as if signed and sworn to before the 17 Court. 18 --oOo-- 19 20 21 22 23 24 25 INTERIM COURT REPORTING 4 1 2 --oOo-- 3 K E N N E T H A. J A C O B S E N, 4 called as a witness, having been duly sworn 5 by the Notary Public, was examined and 6 testified as follows: 7 EXAMINATION BY 8 MR. GARBUS: 9 10 Confidential 11 12 13 14 15 Q. Mr. Jacobsen, prior to coming here 16 today, did you read the deposition of Mr. Schumann? 17 A. I did not. 18 Q. Were you told about the deposition 19 of Mr. Schumann? 20 MR. COOPER: I am going to object 21 to the extent that the only conversations 22 Mr. Jacobsen had with respect to the 23 deposition of Mr. Schumann were with his 24 attorneys. 25 MR. GARBUS: Please mark this as INTERIM COURT REPORTING 5 1 Jacobsen 2 Exhibit 10. 3 (Defendants' Exhibit 10, Declaration 4 of Robin Gross, marked for identification, 5 as of this date.) 6 BY MR. GARBUS: 7 Q. Have you read the affidavits 8 submitted by either side in this case thus far? 9 A. I have not. 10 Q. The first question we asked of 11 Mr. Schumann dealt with -- do you know who Gerald 12 Gockner is? 13 A. I do not. 14 Q. Who is the deputy counsel for the 15 MPAA? 16 A. Greg Geckner. 17 Q. Do you know who he is? 18 A. Yes, I do. 19 Q. Do you know that some weeks ago he 20 said that so far as he knew there was no piracy 21 that he knew of with we respect to the use of 22 deCSS? 23 MR. COOPER: Is that a quote or 24 are you paraphrasing? 25 MR. GARBUS: I am quoting from the INTERIM COURT REPORTING 6 1 Jacobsen 2 Robin Gross affidavit at Paragraph 5, 3 Page 2. 4 Q. Do you know whether the following 5 statement that Mr. Geckner allegedly made is true 6 or not? 7 MR. COOPER: This is which 8 paragraph now? I will put it before the 9 witness. 10 MR. GARBUS: Paragraph 5, sentence 11 2. Let's mark this as the next document. 12 MR. COOPER: Sir, are you asking 13 whether Ms. Kaplan's recitation is a 14 correct quote of what Mr. Geckner said or 15 are you asking whether this witness knows 16 whether what is attributed to Mr. Geckner 17 was true, in fact? 18 MR. GARBUS: The latter. 19 A. If I understand, you are asking me 20 whether or not -- one, I don't know that 21 Mr. Geckner ever made such a statement. Okay? 22 Q. Let me show you Page 10 of the 23 deposition of Mr. Schumann, Line 15 to Line 18. 24 Can you tell me whether or not, to 25 the best of your recollection, if you know, whether INTERIM COURT REPORTING 7 1 Jacobsen 2 or not there has been any piracy resulting from 3 deCSS. 4 MR. COOPER: Are you asking the 5 witness to make reference to 6 Mr. Schumann's testimony in response to 7 your question or are you asking whether 8 the witness has such knowledge 9 independent of any reference to this 10 testimony? 11 MR. GARBUS: The latter. 12 MR. COOPER: Do you understand the 13 question? 14 THE WITNESS: No. 15 Q. Do you have any knowledge of any 16 piracy specifically relating to deCSS? 17 A. This may be a definitional problem, 18 but I would view piracy as the actual distribution 19 of deCSS itself. 20 Q. Right. 21 A. So I would consider that to be 22 piracy. 23 Q. Do you know whether any DVDs were 24 made as a result of the distribution of deCSS? 25 A. If you are asking me if I know of INTERIM COURT REPORTING 8 1 Jacobsen 2 any specific instances where someone has used the 3 deCSS utility to hack a DVD and then make an 4 unauthorized copy, the answer is no. 5 Q. Was there any attempt made by the 6 MPAA to determine whether or not anybody had hacked 7 a DVD using deCSS to make an unscrambled DVD? 8 MR. COOPER: Let me just say that 9 with respect to the nature of this 10 questioning I am going to designate the 11 witness' testimony and the transcript 12 confidential. 13 If we get into an area in which 14 I believe it is appropriate to 15 dedesignate the transcript, then I will 16 so state. Until then, the transcript 17 should be designated confidential 18 pursuant to the protective order in 19 place in this case. 20 MR. GARBUS: Do you want to state 21 the basis for that? 22 MR. COOPER: Not particularly, 23 unless you believe that it is required 24 under the order. 25 MR. GARBUS: I think you are INTERIM COURT REPORTING 9 1 Jacobsen 2 required to do that. 3 MR. COOPER: I disagree with you. 4 Just so you and I understand each other, 5 the reasoning is that I believe that the 6 MPAA's anti-piracy activities are not the 7 business of the public while those 8 activities are ongoing and that's the 9 reason for my designation. 10 Q. Has the MPAA filed any specific suit 11 against any one individual who has actually used 12 deCSS to descramble a DVD? 13 A. I don't -- 14 Q. Other than the California suit and 15 this suit where no particular individual is named 16 as having actually done the copying. 17 MR. COOPER: Would you read back 18 the question, please. 19 (Record read.) 20 MR. COOPER: Objection as to form. 21 I am not aware of any such California 22 action. 23 Q. Do you know anything about a 24 California action? 25 A. There is not a California action I INTERIM COURT REPORTING 10 1 Jacobsen 2 am aware of that we filed. 3 Q. Do you know about the DVD action? 4 A. Yes. 5 Q. Can you tell me whether or not the 6 MPAA has determined the name of any one person who 7 has copied a DVD using deCSS? 8 A. I think it would be fair to say that 9 I would be -- that I have no conclusive evidence 10 that any one person has done that. 11 Q. Now, has the MPAA been investigating 12 that for a period of time, that particular issue? 13 A. We have been -- I mean we have 14 looked at sites on the internet which deal with 15 deCSS. Looking at those sites has not resulted in 16 obtaining any evidence which I would feel 17 comfortable in saying conclusively proves anyone 18 has used it to copy a DVD. 19 There are individuals who are up on 20 the internet who claim that that is what it should 21 be used for and I have read at least one newspaper 22 article where a reporter claimed that he had, in 23 fact, used the utility to hack a DVD. 24 Q. Have you attempted to contact any of 25 the people whose names you have seen on the INTERIM COURT REPORTING 11 1 Jacobsen 2 internet who say that you can use deCSS to 3 descramble DVDs? 4 MR. COOPER: Assumes facts not in 5 evidence. 6 A. If they were posting or linking, we 7 would be sending them a C & D letter or sending the 8 ISP, Internet Service Provider, a cease and desist 9 letter. And if we were able to identify who the 10 party was that was actually up on the internet, we 11 would also send a copy of the letter to them. 12 Q. Other than cease and desist letters, 13 did you do anything further? 14 A. I don't believe we have. 15 Q. Did you get any responses from any 16 of the cease and desist letters? 17 A. Yes, we have received responses. 18 Q. Written responses? 19 A. Yes. 20 Q. And e-mail responses? 21 A. Let me take that back. It may have 22 been e-mail responses. I can't recall whether they 23 came in in written form or in e-mail form. 24 RQ MR. GARBUS: I would ask you to 25 produce those, Mr. Cooper. INTERIM COURT REPORTING 12 1 Jacobsen 2 MR. COOPER: I believe we have 3 already produced a great many and are 4 continuing to produce anymore that we 5 find. 6 MR. GARBUS: Thus far the answer 7 is you produced none. 8 MR. COOPER: I disagree with that, 9 unless there is some misunderstanding 10 about what the question elicited. Are 11 you saying that you have not received any 12 of the cease and desist letters? 13 MR. GARBUS: That wasn't the 14 question. 15 MR. COOPER: Then maybe there is a 16 misunderstanding. 17 Q. Have you received any responses -- 18 A. Yes. 19 MR. COOPER: Wait. 20 Q. -- to the cease and desist letters? 21 MR. COOPER: Let's get a whole 22 question out. 23 MR. GARBUS: Mr. Cooper, your 24 witness understood. 25 MR. COOPER: I am not satisfied INTERIM COURT REPORTING 13 1 Jacobsen 2 that he did. What responses are we 3 talking about? Are we talking about 4 specifically C & D letters to people who 5 came to have used deCSS to decrypt a DVD 6 and make a copy from it? 7 A. No. 8 MR. GARBUS: No. He said he sent 9 out cease and desist letters. I have 10 asked him with respect to those cease and 11 desist letters did he receive any 12 responses. 13 Q. You have said "yes"? Is that 14 correct? 15 A. That's correct. 16 RQ MR. GARBUS: I now ask you to 17 produce those responses and I tell you that 18 we have not gotten any responses. 19 MR. COOPER: I have looked at a 20 number of documents that I understand 21 have been produced to you which 22 constitute responses. It may be a 23 misunderstanding on your part about what 24 they consist of, but my understanding is 25 that many have been provided. If there INTERIM COURT REPORTING 14 1 Jacobsen 2 are more, it is the intent to provide 3 those, as well. But what I have looked 4 at would indicate that you are in error. 5 BY MR. GARBUS: 6 Q. Did you determine whether any of the 7 people you had sent the cease and desist letters to 8 had actually copied a DVD using deCSS? 9 A. I have no actual knowledge that 10 anybody has actually copied a DVD using deCSS. As 11 I said, I have read at least one newspaper article 12 where a reporter claimed to do so. 13 Q. Tell me about that article. 14 A. I just generally remember that the 15 reporter had utilized the utility to open the DVD, 16 see how it worked. 17 Q. Do you recall what he said about his 18 success or lack of success in using the utility? 19 A. My general recollection is that it 20 worked, but it was difficult. 21 Q. Do you recall how long it took him 22 to do it? 23 A. I don't recall specifically, but I 24 recall it was lengthy. 25 Q. Do you recall him saying whether or INTERIM COURT REPORTING 15 1 Jacobsen 2 not he lost the audio when he did it through a 3 DivX? 4 A. I don't. 5 Q. Do you recall him indicating whether 6 or not deCSS caused his computer to crash? 7 A. I don't. 8 Q. Do you know of anybody who has 9 applied deCSS where the computer has not crashed? 10 MR. COOPER: Assumes facts not in 11 evidence. Answer, if you can. 12 A. I don't think I personally know 13 anyone that has used deCSS. 14 Q. At the MPAA, did you ask anybody or 15 did the MPAA run any tests about the use of deCSS? 16 A. Not that I am aware of. 17 Q. Did the MPAA ever hire anybody to 18 perform any tests to see the efficacy of deCSS in 19 descrambling DVDs? 20 A. Not that I am aware of. 21 Q. To your knowledge, did any of the 22 movie studios -- 23 Let's just make one thing clear so I 24 think Mr. Cooper and I can agree. Pending a 25 disqualification motion, I am not permitted to ask INTERIM COURT REPORTING 16 1 Jacobsen 2 about Time Warner. When I use "movie studios" or 3 "plaintiffs," I am excluding Time Warner from that 4 definition. Can we have that agreement? 5 MR. COOPER: We do have that 6 agreement, yes. 7 Q. So anything you know about Time 8 Warner, don't tell me. In any way that Time Warner 9 is different from any question or answer, don't 10 tell me. 11 We have that agreement? 12 MR. COOPER: We do have that 13 agreement. 14 MR. GARBUS: Off the record. 15 (Question read.) 16 Q. -- test deCSS to see whether or not 17 it can be used to descramble a DVD? 18 A. I don't know. 19 Q. Now, you know what the broadband is? 20 A. Generally. 21 Q. Tell me what it is. 22 A. Broadband is a large volume capacity 23 on the internet. It is the ability to transmit 24 huge amounts of data in a very fast period of time. 25 Q. How long has the broadband been with INTERIM COURT REPORTING 17 1 Jacobsen 2 us? 3 MR. COOPER: Lacks foundation. 4 This witness, for the record, is not 5 designated to testify about matters of 6 general technology. 7 A. I don't know. 8 Q. To your knowledge, has a descrambled 9 DVD ever been shown on the internet? One that has 10 been descrambled through deCSS. 11 A. I don't know of -- I have no 12 specific knowledge of that occurring. 13 Q. To your knowledge, has anyone ever 14 tried to transmit a descrambled DVD, descrambled 15 through deCSS on the broadband? 16 MR. COOPER: Assumes facts not in 17 evidence. 18 A. I have no information that that has 19 ever occurred. 20 Q. To your knowledge, has anyone ever 21 tried to send a descrambled DVD, one that has been 22 descrambled through deCSS, on a T1 line? 23 A. I have no knowledge. 24 MR. COOPER: Same objection. 25 Q. Do you know what a T1 line is? INTERIM COURT REPORTING 18 1 Jacobsen 2 A. Generally. 3 Q. What is it? 4 A. It is a large capacity pipe which 5 would allow you to send a lot of data in a quick 6 period of time. 7 Q. Would your answer be the same with 8 respect to a T3 line? 9 MR. COOPER: Same objection. 10 A. Yes. 11 Q. With respect to a DSL line, do you 12 know if anyone has ever used a DSL line to send a 13 descrambled DVD, descrambled through deCSS? 14 MR. COOPER: I don't know how 15 anybody could know the method of 16 transport that a particular user of the 17 internet uses. This witness isn't 18 designated to testify as to such matters, 19 but I will let him answer if he knows. 20 A. I don't know of any such instance. 21 Q. With respect to what Mr. Cooper 22 said, namely that you can't tell the line of 23 communication over which a descrambled DVD might 24 pass, is there anyone at the MPAA who has tried to 25 monitor that? Namely, whether descrambled DVDs, INTERIM COURT REPORTING 19 1 Jacobsen 2 descrambled through deCSS, are going out over any 3 of these DSL, T1, T3, or broadband? 4 A. I'm sorry. I lost the first part of 5 the question. 6 MR. GARBUS: Read back the 7 question. 8 (Record read.) 9 A. If I understand the question, I 10 don't know if there is anybody at MPAA or MPA who 11 could determine what the source of transmission 12 was. 13 Q. Is there anyone at any of the movie 14 studios or plaintiffs who can? 15 A. I don't know that answer. 16 Q. Do you know if they have? 17 A. I don't. 18 Q. Do you know if they have tried to? 19 A. I don't. 20 Q. Do you know if anyone at the movie 21 studios has ever seen a descrambled DVD, 22 descrambled through deCSS, on the internet? 23 MR. COOPER: I caution the witness 24 to distinguish, in responding to this, 25 between privileged and unprivileged INTERIM COURT REPORTING 20 1 Jacobsen 2 sources of information, and not to 3 provide a response with respect to 4 privileged sources. 5 A. I don't. 6 Q. With respect to seeing a DVD 7 descrambled through deCSS on the internet, do you 8 know whether anyone at the movie studios or the 9 MPAA has tried to send such a DVD over the 10 internet? 11 A. I do not. 12 Q. Do you know whether anyone at the 13 movie studios has ever learned the name of one 14 single person who has attempted to copy a DVD 15 through the descrambling by deCSS? 16 A. I don't know. 17 Q. Do you know if the movie companies 18 have done any investigation into that question? 19 A. Independently of MPAA? 20 Q. Yes. 21 A. I'm not sure I understand the 22 question. 23 24 Confidential 25 INTERIM COURT REPORTING 21 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 22 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 23 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 24 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 25 1 Jacobsen 2 3 Confidential 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q. Putting aside any conversations 24 where you were involved with your lawyers or the 25 MPAA lawyers or the lawyers for any of the INTERIM COURT REPORTING 26 1 Jacobsen 2 plaintiffs in this case, did you have any 3 conversations with any people at any of those 4 studios who had ever known of one single instance 5 of DVDs being descrambled through deCSS and a copy 6 thereafter being made? 7 A. No. 8 Q. Have you asked these plaintiffs that 9 question? Namely, whether or not they knew of any 10 single instance of a DVD being descrambled to make 11 a copy, with the exception of any conversations 12 that any lawyers were in any way involved in? 13 A. If I understand the question, you 14 are asking me if I asked it outside of the context 15 of a possible privilege? No. 16 Q. Have you ever seen any documents 17 from any of the plaintiffs that indicate whether or 18 not they know of one single DVD being descrambled 19 by deCSS? 20 A. No. 21 Q. Do you know whether they have such 22 documents? 23 A. No. 24 Q. Do you know if they have ever made 25 their own investigation into whether or not deCSS INTERIM COURT REPORTING 27 1 Jacobsen 2 was ever used for descrambling a DVD? 3 A. No. 4 Q. After you saw the Toronto article, 5 was there any attempt made by you or anyone acting 6 on your behalf to contact the Toronto reporter? 7 MR. COOPER: Assumes facts not in 8 evidence. I don't remember the witness 9 identifying the Toronto article. 10 MR. GARBUS: He did. 11 MR. COOPER: As such, I think the 12 witness testified that there was an 13 article. 14 Q. Do you know where the article was? 15 A. I read it off the internet, but I 16 don't recall which paper it was. 17 Q. Did you at any time try to contact 18 the author of that article? 19 A. I did not. 20 Q. Do you know anybody at any of the 21 plaintiffs or anybody acting on your behalf that 22 did? 23 A. No. 24 Q. Did you try to determine whether or 25 not after that article was printed anybody reading INTERIM COURT REPORTING 28 1 Jacobsen 2 that article sought to descramble DVDs through 3 using deCSS? 4 A. I do not, no. 5 Q. Can you just tell me approximately, 6 in round numbers, the dollar value of the resources 7 that the MPAA has used to determine whether or not 8 deCSS is an effective descrambling tool for DVDs? 9 A. I'm not aware of any money we have 10 spent to test whether or not it effectively 11 descrambles. 12 Q. Have you -- by "you" I mean you or 13 the MPAA -- produced or prepared any documents 14 concerning the amount of the use of deCSS over any 15 communication system, whether it be T1, T3, DSL, or 16 broadband at any time in the future? 17 MR. COOPER: Read back the 18 question, please. 19 (Record read.) 20 MR. COOPER: I object as to the 21 form of the question. Unintelligible and 22 ambiguous. 23 Q. Do you understand it? 24 A. No. 25 Q. Have there been any projections made INTERIM COURT REPORTING 29 1 Jacobsen 2 orally or in writing by you or anyone at the MPAA 3 for the potential use of deCSS to make copies of 4 DVDs in the future? 5 MR. COOPER: That's a "yes" or 6 "no" question. 7 A. Not that I am aware of. No. 8 Q. Have there been any studies made to 9 determine the potential use on the broadband of 10 individuals attempting to descramble DVDs through 11 the use of deCSS? 12 A. I'm sorry, but I didn't understand 13 the question. 14 MR. GARBUS: Read the question 15 back. 16 (Record read.) 17 A. Studies by who? I'm sorry. 18 Q. You. 19 A. Regarding the attempted use? 20 Q. For example, is there any document 21 which would say, we expect that over the broadband 22 in the next ten years or the next one year, that 23 deCSS will be transmitted and we may see X number 24 of DVDs unscrambled in that way? 25 A. No. INTERIM COURT REPORTING 30 1 Jacobsen 2 Q. In other words, let me just make it 3 clear what I am talking about. I will give you the 4 general scope. 5 I am now trying to look towards the 6 future and I am trying to determine whether or not 7 you, the MPAA, the movie studios, have any 8 documents or any oral conversations you can tell me 9 about, about the potential impact of actual copies 10 of DVDs that are unscrambled through deCSS. Are 11 there such studies? 12 A. Not that I am aware of. 13 MR. COOPER: Your question 14 included oral discussions and then the 15 clarification at the end, studies. You 16 are looking at studies? 17 Q. Let's look at three things. Oral 18 conversations where lawyers are involved, oral 19 conversations where no lawyers are involved, and 20 then any studies or reports concerning that subject 21 matter. 22 A. Okay. 23 Q. Are there any studies that you have 24 seen done by the MPAA or any of the other 25 plaintiffs concerning the future use, potential use INTERIM COURT REPORTING 31 1 Jacobsen 2 of deCSS to copy DVDs? 3 A. No. 4 Q. I ask you the same thing with 5 respect to reports. 6 A. No. 7 Q. I ask you the same thing with 8 respect to oral conversations that take place 9 without lawyers being around or involved. 10 A. No. 11 Q. Do you know what a DVD burner is? 12 A. I have a general understanding. 13 Q. What is your general understanding? 14 A. It would be a device which would 15 allow you to copy a DVD from your hard drive. 16 Q. Have there been any studies made by 17 you -- let's save some time. 18 When I say "you" now, I am talking 19 about you, the MPAA, or the movie, that you know 20 of. Every time I use the word "you," then, in the 21 next few questions, it implies that entire 22 universe. 23 MR. GARBUS: Read back my question 24 so far. 25 (Record read.) INTERIM COURT REPORTING 32 1 Jacobsen 2 Q. -- as to the potential future use of 3 DVD burners to copy DVDs? 4 A. The fact that a DVD burner may exist 5 or will exist has been the subject of discussion. 6 Q. Do you know if it exists today? 7 A. I believe that it has been 8 developed, yes. 9 Q. Do you know what they cost? 10 A. I don't know precisely, but my 11 understanding is they are still quite expensive. 12 Q. Between $5,000 and $10,000? 13 A. Possibly. 14 Q. Have you made any studies or reports 15 or had any oral conversations, excluding oral 16 conversations where lawyers are present, discussing 17 the potential use of DVD burners to show copies of 18 DVDs? 19 A. I don't understand the question, 20 because I don't understand a burner that would be 21 something that would show a copy of a DVD. 22 Q. What does a burner do? 23 A. Makes a copy of a DVD. 24 Q. Do you have any studies -- by "you" 25 I mean all the plaintiffs -- about the potential INTERIM COURT REPORTING 33 1 Jacobsen 2 copies that can be made in the future through the 3 use of DVD burners? 4 A. I don't know of any specific written 5 reports or studies. 6 Q. Do you have any knowledge of any 7 individual consumers using DVD burners to make a 8 single copy for themselves of a DVD? 9 A. No. 10 Q. Have you or the MPAA retained any 11 outside experts on the deCSS question, other than 12 Robert Schumann? 13 A. Can I -- 14 MR. COOPER: Can you answer that 15 question from general knowledge? That 16 is, other than from what you have 17 discussed with attorneys. 18 THE WITNESS: I think I probably 19 cannot. 20 BY MR. GARBUS: 21 Q. So you can't tell me, as you sit 22 here today, whether or not the MPAA has retained 23 any other experts with respect to the deCSS area? 24 MR. COOPER: From nonprivileged 25 sources? INTERIM COURT REPORTING 34 1 Jacobsen 2 MR. GARBUS: From nonprivileged 3 sources. 4 Q. Is that right? 5 A. That's correct. 6 Q. Have you seen any exchange of 7 correspondence, excluding privileged documents, if 8 in fact a privilege applies, between the MPAA and 9 any of the studios concerning the use of deCSS? 10 A. I'm sorry. Could you repeat the 11 first part of the question? 12 MR. GARBUS: Read it back. 13 (Record read.) 14 MR. COOPER: Read it back. 15 (Record read.) 16 A. Excluding privileged documents, no. 17 Q. When you say "privileged documents," 18 are you referring to documents exchanged directly 19 by the MPAA with lawyers and documents exchanged 20 between the movie studios and lawyers or you are 21 also referring to documents exchanged between the 22 movie studios and the MPAA without lawyers? 23 MR. COOPER: Do you understand the 24 question? 25 THE WITNESS: Yes, I understand INTERIM COURT REPORTING 35 1 Jacobsen 2 the question. 3 A. I am referring to documents -- the 4 two former that you set up. Documents between 5 lawyers and the studios and the studios and the 6 lawyers. 7 Q. Have you seen any documents between 8 the MPAA and the studios, nonlawyer documents, that 9 refer in any way to deCSS? 10 A. Not that I can recall. 11 MR. GARBUS: Let's mark this as 12 the next exhibit. 13 (Defendants' Exhibit 11, three-page 14 letter, dated May 15, 2000, marked for 15 identification, as of this date.) 16 RQ MR. GARBUS: Mr. Cooper, I show you 17 Defendant's Exhibit 11, which is addressed 18 to Carla Miller, copied to Leon Gold. We 19 had a conversation Monday about the 20 production of documents for today and he 21 asked that we send him a letter and I asked 22 whether or not you have any of those 23 documents here with you today. 24 MR. COOPER: My understanding of 25 the conversation that led up to this INTERIM COURT REPORTING 36 1 Jacobsen 2 letter is a little different than what 3 you just described. My understanding was 4 that Mr. Gold made a general suggestion 5 to you, that you give an itemization of 6 documents you were seeking and offered to 7 respond to that itemization. I didn't 8 understand the conversation to be 9 directly focused on this witness' 10 appearance here today or that the 11 documents described would be provided 12 today. 13 I note, although this is the 14 first time I have seen the letter 15 personally, that most of them focus on 16 Mr. Schumann's testimony as opposed to 17 Mr. Jacobsen's. I do not have any 18 additional documents to produce in 19 response to this letter as we sit here. 20 Now that you have drawn it to my 21 attention, I will investigate where we 22 stand in response to it and I will let 23 you know. 24 MR. GARBUS: Thank you very much. 25 BY MR. GARBUS: INTERIM COURT REPORTING 37 1 Jacobsen 2 Q. Were you involved in any way in the 3 preparation of the cease and desist letters? 4 A. In my position, I have general 5 oversight authority for the fact that we have a 6 program that would send cease and desist letters. 7 But no, the actual construction of the letter 8 itself would have been done by our attorneys. 9 Q. Proskauer? 10 A. No. Our in-house attorneys. 11 Mr. Litvack would have overseen the project. 12 Q. You are the senior vice president 13 and director for worldwide anti-piracy; is that 14 right? 15 A. That is correct. 16 Q. Are you a lawyer? 17 A. Yes, I am. 18 Q. How long have you been practicing? 19 MR. COOPER: Assumes facts not in 20 evidence. Answer it. 21 A. I actually have never practiced. 22 MR. GARBUS: Off the record. 23 (Discussion off the record.) 24 BY MR. GARBUS: 25 Q. How long have you been at the MPAA? INTERIM COURT REPORTING 38 1 Jacobsen 2 A. I have been employed by the MPAA 3 since January 2nd of 1995. 4 Q. Can you tell me generally what your 5 duties include? 6 MR. COOPER: Today or from the 7 beginning? 8 MR. GARBUS: Today. 9 A. Today I have oversight 10 responsibility for our entire worldwide anti-piracy 11 program. We are active in approximately 67 12 countries and I have responsibility for overseeing 13 how that program runs, the strategies that are 14 developed, the budget that is put together and 15 submitted to the members on an annual basis for 16 funding, correspondence about the program to the 17 member companies and their representatives, hiring 18 and firing. All of the management decisions that 19 are made regarding that program. 20 21 22 Confidential 23 24 25 INTERIM COURT REPORTING 39 1 2 3 4 Confidential 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 40 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 41 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 Q. How long have you had this position? 13 A. I was promoted the 1st of April of 14 this year and I occupied the position sort of co 15 with my predecessor until he left April 21st, and 16 then I took over. 17 Q. Prior to that what was your 18 position? 19 A. Prior to that, for two years I was 20 the vice president and director of the U.S. 21 anti-piracy program. 22 Q. In all that time, have any one of 23 these people who were your employees ever told you 24 that they had ever seen a copy of a DVD descrambled 25 by deCSS? INTERIM COURT REPORTING 42 1 Jacobsen 2 MR. COOPER: Exclude from that 3 those people who operate as attorneys, as 4 you have described them. 5 A. Not conclusively. 6 Q. When you say "not conclusively," did 7 any one of them ever tell you that they had learned 8 the name of one single person who had ever copied a 9 DVD through the use of the descrambling -- 10 descrambling through deCSS? 11 MR. COOPER: Asked and answered. 12 MR. GARBUS: Different question. 13 A. Not conclusively, no. 14 Q. When you say "not conclusively," did 15 you ask your office -- and by "your office" I mean 16 either the office you held before April 1st or the 17 people under your direction after April 1st. 18 -- whether they could find a single 19 copy of a DVD that had been descrambled through 20 deCSS or the name of a single individual who had 21 used deCSS who descrambled a DVD? 22 MR. COOPER: Could I just, just 23 for simplicity so I don't interrupt your 24 questions and the witness' answer, can we 25 have a running understanding that you INTERIM COURT REPORTING 43 1 Jacobsen 2 mean to exclude the conversations with 3 those people the witness has identified 4 as operating as attorneys? 5 MR. GARBUS: Absolutely. 6 A. I have never asked the question in 7 that fashion. 8 Q. What is the question that you have 9 asked? 10 A. I have asked people that are in our 11 employment structure whether or not they can 12 identify the source of unauthorized DVDs that we 13 have located. 14 Q. Has anyone ever told you that deCSS 15 was the source? 16 A. Conclusively? No. 17 Q. Have you tried to make a conclusive 18 determination as to whether or not any of these 19 copies of DVDs came from the use of deCSS? 20 A. In every instance where we analyze 21 for source we would try to make a determination 22 about what the original source of the product would 23 be, deCSS would be one of those possibilities. 24 Q. And you never were able to determine 25 that one single one ever came through deCSS? INTERIM COURT REPORTING 44 1 Jacobsen 2 A. To be perfectly honest, I am not 3 even certain that that can be done. We don't 4 know -- I don't know whether or not deCSS leaves an 5 identifiable mark when it is used to descramble a 6 DVD. But we are, in fact, looking at some DVDs and 7 trying to make a determination about what the 8 source is. 9 Q. Just going back, at the present 10 time, you can't tell me that you have seen one copy 11 of a DVD that has definitely been made as a result 12 of the deCSS descrambling? 13 A. That's correct. 14 Q. At the present time, you can't tell 15 me that you know the name of one person who has 16 descrambled a DVD through deCSS to make a copy? 17 A. I know people have claimed that. I 18 cannot conclusively tell you that what they are 19 claiming is accurate. 20 Q. Other than the claims and other than 21 the article in the newspaper, do you know the name 22 of one person who you have determined has made such 23 a copy? 24 A. No. 25 Q. When you say "people claim," you are INTERIM COURT REPORTING 45 1 Jacobsen 2 talking about people who claim this in internet 3 postings? 4 A. That is correct. 5 Q. Did the internet postings frequently 6 give you the name of the poster who posts that 7 information? 8 MR. COOPER: Those particular 9 postings? 10 MR. GARBUS: Yes. 11 A. It would depend. 12 Q. Sometimes you know personally the 13 site from which it comes? 14 A. That would be correct. 15 Q. Have you ever gone to the site or 16 tried to further investigate into those people who 17 claim, according to you, that they have made DVDs 18 through the use of deCSS descramblers? 19 A. I think one of the original 20 defendants in this case claimed that on his 21 website. 22 Q. Claimed that he had made it? 23 A. Yes. Or that copies were being 24 made. 25 Q. He claimed that copies were being INTERIM COURT REPORTING 46 1 Jacobsen 2 made. Did you ever determine whether that was true 3 or not? 4 A. No. 5 Q. In other words, did you ever make a 6 distinction or did you ever determine the 7 difference between rhetoric, bragging, polemics, 8 and the actual making of a copy of a DVD through 9 the use of deCSS? 10 MR. COOPER: I object to the 11 characterization and the form of the 12 question. I'm not sure it is a fair 13 characterization of what the witness has 14 referred to, to refer to it as rhetoric, 15 polemics, and so on. 16 If the question is has the 17 witness distinguished or attempted to 18 distinguish between names and copying, 19 in fact, I think you can answer that 20 question. 21 Q. Go ahead. 22 A. I'm sorry. Was the question have I 23 attempted to distinguish or have I been able to? 24 MR. GARBUS: We will take it with 25 Mr. Cooper's modification. INTERIM COURT REPORTING 47 1 Jacobsen 2 A. Which is attempted? 3 MR. GARBUS: Read back the whole 4 conversation. 5 (Record read.) 6 A. I have been unable to determine 7 whether or not any copies were actually made or 8 people were just claiming to do it without having 9 done so. 10 Q. Did anyone on any of these postings 11 give you the specific name of a film or DVD that 12 they had succeeded in descrambling through the use 13 of deCSS? 14 A. I don't recall. 15 Q. Would your recollection be that they 16 spoke in general terms and said, "I've done it" or 17 "I will do it" or "You can do it," rather than 18 saying I have done it with respect to a particular 19 film, on a particular date, in a particular place? 20 MR. GARBUS: Off the record. 21 (Discussion off the record.) 22 A. I don't recall. 23 Q. Do you recall the name of one single 24 title that anyone has ever claimed they have ever 25 been able to copy through the use of deCSS? INTERIM COURT REPORTING 48 1 Jacobsen 2 MR. COOPER: I'm not sure how to 3 distinguish that from your prior 4 question. 5 A. No. 6 Q. With respect to the people who have 7 used what I have called polemics, have you 8 determined through investigation the names of these 9 people and where they live? 10 A. If you are asking me the people that 11 have shown up on the web who have made these 12 claims, the answer is we have not determined who 13 they are or where they live, to my knowledge. 14 Q. Have you attempted to do so? 15 MR. COOPER: You are 16 distinguishing the current defendant 17 which the witness has already said they 18 identified and who he believed to have 19 made some such claims? 20 MR. GARBUS: Emmanuel Goldstein? 21 MR. COOPER: Eric Corley. 22 MR. GARBUS: Off the record. 23 (Discussion off the record.) 24 MR. GARBUS: Where are we? 25 (Record read.) INTERIM COURT REPORTING 49 1 Jacobsen 2 MR. COOPER: Exclude conversations 3 with counsel as a source for the answer 4 to that last question. 5 A. If they were the target of a C & D 6 letter or a cease and desist letter, we would have 7 done some preliminary investigation to see if we 8 can determine an address where we can send a copy 9 of the letter to. 10 MR. COOPER: Is this an 11 appropriate time to take a brief break? 12 MR. GARBUS: If you would like. 13 (Recess taken.) 14 MR. GARBUS: Please mark this as 15 an exhibit. 16 (Defendants' Exhibit 12, four-page 17 document titled "1st Story of Level 1 18 printed in Full Format, Copyright 2000 19 Toronto Star Newspapers, Ltd. The Toronto 20 Star," marked for identification, as of 21 this date.) 22 (Recess taken.) 23 BY MR. GARBUS: 24 Q. Mr. Jacobsen, do you know of any 25 technology now known but not yet created or INTERIM COURT REPORTING 50 1 Jacobsen 2 anticipated that can use deCSS to descramble DVDs? 3 MR. COOPER: Would you read back 4 the question. 5 (Record read.) 6 Q. -- and make copies? 7 MR. COOPER: I find the question 8 terribly confusing. I think it assumes 9 facts not in evidence. 10 Q. Go ahead. 11 A. I don't understand the question, 12 because my understanding is deCSS allows you to 13 decrypt a DVD and then copy it to your hard drive. 14 Q. Once it is on the hard drive, it is 15 on the hard drive in descrambled form or scrambled 16 form? 17 A. I believe it's in the unscrambled 18 form. 19 Q. So you believe that once it goes 20 onto your hard drive you can immediately show it on 21 your video monitor? 22 MR. COOPER: This witness is not 23 here to testify on the technical aspects 24 of deCSS. 25 Q. Is that your understanding? INTERIM COURT REPORTING 51 1 Jacobsen 2 A. That is my understanding. 3 Q. So that once you put it on your hard 4 drive it is there and all you have to do is push a 5 button and you can watch it on your computer? 6 MR. COOPER: That probably 7 misstates the technological aspects of 8 what it requires to make it happen and 9 this witness is not here for this 10 purpose. 11 Q. Go ahead. 12 A. I misspoke. I mean there would have 13 to be some sort of media player associated with the 14 computer. But my understanding is if it is an 15 unscrambled format, you would need a software 16 program that would allow you to play it on a 17 computer. 18 Q. What kind of software program would 19 that be? 20 A. A media player, Windows media 21 player. 22 Q. Other than the broadband lines, the 23 T1 lines, the T3 lines or the DSL, or the regular 24 telephone lines, do you know of any other method of 25 transmission of deCSS to unscramble DVDs? INTERIM COURT REPORTING 52 1 Jacobsen 2 MR. COOPER: Again, this witness 3 isn't here to testify on the 4 technological matters. I think you have 5 misstated the function of deCSS and 6 misstated, as well, what the various 7 methods of transmission for access to the 8 internet are. With those objections, if 9 the witness can answer the question, I 10 will allow him to do so. 11 A. I didn't understand the question. 12 Q. Other than DSL lines, telephone 13 lines, T1, T3, or the broadband, do you know of any 14 other technology that permits for the sending of 15 decrypted DVD movies? 16 A. Sending them where? I don't 17 understand the question. 18 Q. From one person to another. 19 A. Computer to computer? 20 Q. Yes. 21 A. I mean I would suppose there is no 22 reason why someone couldn't put it on a disk and 23 put it into your computer disk to disk. I don't 24 know the answer. 25 Q. There are various different ways or INTERIM COURT REPORTING 53 1 Jacobsen 2 cables or pathways that you can have piracy on. 3 One of the present pathways are DSL, another one is 4 T1, another one is T3, another one is broadband. 5 Can you tell me whether there is any 6 other pathway that you know of? 7 MR. COOPER: You have used a 8 variety of different references as you 9 have asked this question. I will note 10 that my understanding of broadband might 11 differ from yours. 12 MR. GARBUS: We might call 13 broadband T3. 14 Q. Whatever interpretation you take of 15 broadband, can you answer that question? If you 16 want to give me several different interpretations 17 of broadband, just give it to me. 18 A. There is a whole developing field of 19 wireless communication that you didn't mention, 20 which I assume would be a method to also transmit 21 information from computer to computer. 22 Q. Thus far, have you determined 23 whether or not decrypted DVD movies have been sent 24 over the wireless? 25 A. I have not. INTERIM COURT REPORTING 54 1 Jacobsen 2 Q. Do you know if that is possible? 3 MR. COOPER: To determine -- 4 MR. GARBUS: -- whether that can 5 be done. 6 A. I would assume it would be possible 7 to determine. It could be done. I don't have the 8 technical ability myself to make that 9 determination. 10 Q. Has anyone at the MPAA, to your 11 knowledge, made any technological determination 12 with the use of the wireless with respect to 13 decrypted DVD movies? How long it would take, how 14 it would be done, or any of the mechanics of it. 15 MR. COOPER: Assumes facts not in 16 evidence. 17 Q. Go ahead, Mr. Jacobsen. 18 A. If you are asking me if I know of 19 any studies that have been undertaken to determine 20 how long it would take to transmit from one 21 computer to another, the answer is know. 22 Q. Let me show you Exhibit 12 and ask 23 whether or not that is the article that you saw. 24 A. (Witness reviewed document.) 25 I'm not 100 percent sure, but it INTERIM COURT REPORTING 55 1 Jacobsen 2 could be. I mean it rings a bell. 3 Q. Do you want to just take a look at 4 it for another minute? 5 A. (Witness complied with request.) 6 Q. Is this the article that you read? 7 A. I don't remember. It could be. 8 Q. This article is dated May 4th, 9 according to the printout that I have. Is this the 10 first time that you learned that anybody had tried 11 to use deCSS to make a copy of a DVD? I believe 12 that was your testimony before, that the first time 13 you ever heard of anyone actually trying to make a 14 copy was when you saw the article. 15 MR. COOPER: First of all, the 16 witness can't identify this as the 17 article, so the reference to the date 18 isn't terribly meaningful. But I think, 19 as well, you are misunderstanding his 20 prior testimony. 21 BY MR. GARBUS: 22 Q. Go ahead, Mr. Jacobsen. Why don't 23 you again straighten us both out. 24 A. I think what I said was I read an 25 article by a news reporter who claimed he had done INTERIM COURT REPORTING 56 1 Jacobsen 2 it and I have also been made aware of website 3 locations or internet locations where people make 4 the same claim. Perhaps not in the detail that the 5 reporter did, but claiming they have done it. 6 Q. And in the website where people 7 claim that they have done it, have they told you, 8 do you remember, anything about how long it took 9 them to do it? 10 A. I don't recall. 11 Q. Do you recall whether they say they 12 did it successfully? 13 A. I don't recall that that discussion 14 occurred. It is just the statement that it had 15 been done. 16 Q. Do you recall anything about the 17 quality of the DVD that they claim had been copied? 18 A. I don't. 19 Q. Can you produce copies or any 20 information concerning those websites? 21 A. Well, the one, as I did state, was a 22 prior defendant in this case, Mr. Reimerdes, he had 23 posted it on his -- 24 Q. Other than Mr. Reimerdes, do you 25 know of anyone else who has ever claimed to have INTERIM COURT REPORTING 57 1 Jacobsen 2 done it? 3 A. I have not actually seen the sites 4 myself. I have been informed by members of my 5 staff that those claims have been made. 6 Q. Have you downloaded the printed 7 material from those sites? 8 A. I have not. 9 Q. Has your staff? 10 A. I don't know that answer. 11 RQ Q. Will you find that out? And if you 12 have, will you please give me the printed material? 13 If you don't have the printed material, will you 14 give me any other documentation that you have 15 indicating the names of the websites, the names of 16 the people, if you have them, who allegedly claim 17 that you can do it or should do it or had done it, 18 and their addresses? 19 MR. COOPER: We will take the 20 request under advisement. 21 Q. So as you sit here today, the only 22 person that you know who ever claimed that they had 23 copied a DVD through deCSS is Reimerdes; is that 24 right? 25 A. And apparently the reporter in this INTERIM COURT REPORTING 58 1 Jacobsen 2 (indicating). 3 Q. Two people. 4 MR. COOPER: The witness was 5 referencing Exhibit 12. 6 Q. Do you know whether Reimerdes had 7 actually ever done it? 8 A. I do not. 9 Q. Did anyone ever question him to see 10 whether he had done it? 11 A. I don't know. 12 Q. So you don't know whether, again, he 13 was exaggerating or distorting it or whether he had 14 actually done it? 15 A. That's correct. 16 17 18 Confidential 19 20 21 22 23 24 25 INTERIM COURT REPORTING 59 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 60 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q. But you can tell me that in trying 24 to determine the source of all of the pirated 25 copies that the MPAA has seen, you are able to say INTERIM COURT REPORTING 61 1 Jacobsen 2 conclusively that any one copy ever came from a 3 deCSS? 4 MR. COOPER: That he has 5 previously answered. 6 Q. Is that right? 7 A. That is correct. 8 Q. How long have you been trying to 9 determine the sources of pirated material? I 10 presume for as long as you have been involved in 11 this venture of anti-piracy. 12 A. Your presumption would be correct. 13 In the five years, five plus months that I have 14 worked there, that has always been something that I 15 have tried to do. 16 Q. So it is fair to say that in the 17 last year, to your knowledge, no one has been ever 18 able to attribute a copied DVD to a deCSS source? 19 MR. COOPER: I think your use of 20 it, the last year of your time frame is 21 misleading. I am not aware that deCSS 22 has existed for a year. 23 Q. To your knowledge, how long has 24 deCSS existed? 25 A. I became aware of it either in INTERIM COURT REPORTING 62 1 Jacobsen 2 October or November of 1999. 3 Q. Since October or November of 1999, 4 have you ever determined that one single copy has 5 ever been made through the use of deCSS? 6 MR. COOPER: Asked and answered. 7 A. I have no conclusive evidence that 8 has ever occurred. 9 Q. When you say "conclusive," do you 10 have any inconclusive evidence? 11 MR. COOPER: Asked and answered. 12 Q. The only inconclusive evidence is 13 the newspaper article? 14 MR. COOPER: Mischaracterizes the 15 witness' testimony. 16 Q. What is the inconclusive evidence? 17 MR. COOPER: Asked and answered. 18 A. Would be claims made by people that 19 they have done so. 20 RQ MR. GARBUS: Mr. Cooper, we 21 anticipate going to trial in this case. I 22 would ask that if between now and the trial 23 of that case there is any information about 24 deCSS as a source of a particular pirated 25 copy, that that information be furnished to INTERIM COURT REPORTING 63 1 Jacobsen 2 me as part of the document request. 3 In other words, I would not want the 4 document request either with respect to 5 pirated copies or different technologies 6 that carry deCSS or decrypted DVDs to be 7 limited solely to the time of the 8 deposition, but if you get additional 9 documents with respect to any of the 10 questions that I have asked this witness 11 and you agree to produce files up to 12 today's date, I would like to make that 13 request for the documents for the date 14 going forward to the date of trial. 15 Off the record. 16 MR. COOPER: I note the request. 17 We will take it under advisement. 18 Q. Did you ever contact the newspaper 19 in which you saw the article, whether it be this 20 article or a different article, and advise the 21 newspaper not to run articles about the method of 22 making decrypted movies from deCSS? 23 MR. COOPER: Would you read it 24 back, please. 25 (Record read.) INTERIM COURT REPORTING 64 1 Jacobsen 2 A. I never contacted the writer of the 3 newspaper article that I read. 4 Q. Did you ever determine whether or 5 not those newspapers ever got a response, letters, 6 or comments, either orally or in writing, to the 7 author's article where he claimed that he had used 8 deCSS to make copies of DVDs? 9 A. I'm sorry. Did you ask if I ever -- 10 MR. GARBUS: Off the record. 11 (Discussion off the record.) 12 A. I never contacted the newspaper, at 13 all. 14 Q. Has anyone ever told you about the 15 quality of DVD movie that has been decrypted 16 through the use of deCSS? 17 A. No. 18 Q. So we can't get into a discussion 19 about good quality, bad quality, poor quality, 20 terrific quality, because that is not something you 21 have any knowledge of? 22 A. That's correct. 23 Q. Do you have on your staff people who 24 are "technical people" who know how long it would 25 take to upload a gigabyte? INTERIM COURT REPORTING 65 1 Jacobsen 2 MR. COOPER: A gigabyte of data? 3 MR. GARBUS: Yes. 4 MR. COOPER: Onto another site on 5 the internet? 6 MR. GARBUS: Yes. 7 A. I have someone on my staff who is 8 conversant with the internet. 9 Q. Who is that? 10 11 12 13 14 Confidential 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 66 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Let me show you the last line of 25 Paragraph 21, at Page 8 of the affidavit of John INTERIM COURT REPORTING 67 1 Jacobsen 2 Gilmore and ask whether you have any information 3 about whether or not that sentence is accurate. 4 MR. COOPER: The attention -- 5 Q. "Using the internet to send or sell 6 copies of stored movies is particularly 7 unreasonable: Uploading a single gigabyte over a 8 56K modem would take about 40 hours. So, an entire 9 DVD would take many days." 10 Do you have the technical knowledge 11 to pass judgment on the accuracy of that statement? 12 MR. COOPER: I will note that he 13 is not here to testify on such matters. 14 Q. Go ahead. 15 A. I would assume he is correct, but 16 the majority of the people that we are concerned 17 about are not using 56K modem. 18 Q. What are they using? 19 A. They are using either broadband or a 20 T1, a T3, a university system. 21 Q. How long would it take over T1? 22 A. I don't know the answer. It would 23 be significantly less than this. 24 Q. How long would it take over T3? 25 A. I don't know the answer. INTERIM COURT REPORTING 68 1 Jacobsen 2 Q. How long would it take over 3 broadband? 4 A. I don't know the answer. 5 Q. Does anybody at the MPAA know? 6 A. I think all of those factors vary 7 upon the size of the file that you are dealing 8 with, how busy the particular pipe is at the 9 particular time you are trying to use it. But yes, 10 we would have rough estimates of what the time 11 frame would be. 12 RQ MR. GARBUS: Would you produce that 13 information? 14 MR. COOPER: The fact that they 15 could estimate it doesn't mean that they 16 do have estimates in existence. 17 Q. Have you estimated it? 18 A. In general discussion perhaps, but I 19 don't recall ever producing a written document that 20 sets up those estimates. 21 Q. No pieces of paper? 22 A. That's correct. 23 Q. Have you heard of anybody ever 24 trying to use the broadband to send a decrypted DVD 25 movie? INTERIM COURT REPORTING 69 1 Jacobsen 2 A. I think I have already testified, 3 outside of the fact that people have claimed they 4 have used DVD deCSS, I am unaware of anybody 5 actually transmitting it or actually decrypting a 6 DVD. 7 Q. Before you said that the mere 8 transmission of deCSS is piracy. Is that right? 9 A. What I suggested was the posting for 10 trafficking or trafficking in deCSS, I would 11 consider it to be within the term "piracy," as I 12 used the term "piracy" in my program. 13 MR. GARBUS: Can I hear the answer 14 again? 15 (Record read.) 16 Q. How about the postings, if for 17 reasons other than trafficking? As, for example, 18 on university sites? 19 MR. COOPER: Calls for a legal 20 conclusion and assumes facts not in 21 evidence. 22 Q. Go ahead. Can you answer the 23 question? 24 A. The distribution, in my mind, would 25 be the same as trafficking. If I am offering for INTERIM COURT REPORTING 70 1 Jacobsen 2 distribution deCSS, that is another word that is 3 synonymous with trafficking. 4 Q. You are saying that the mere posting 5 by anybody of deCSS, whether it be academic, a 6 university, an author, would under your definition 7 come within trafficking? 8 MR. COOPER: Same objection. 9 Q. Is that right? 10 A. Not necessarily. 11 Q. Explain that to me. 12 MR. COOPER: Same objections. 13 Q. Go ahead. 14 MR. COOPER: Let me confer with 15 the witness. 16 MR. GARBUS: Let me get an answer 17 at this time. 18 MR. COOPER: I just want to find 19 out if the witness is -- 20 MR. GARBUS: Let me get an answer. 21 MR. COOPER: As long as it is 22 exclusive of material from you had from 23 counsel, that's fine. 24 Q. Go ahead. Just give me the answer. 25 A. I generally understand that there INTERIM COURT REPORTING 71 1 Jacobsen 2 might be situations where parts of the utility or 3 reasons for the utility being used may or may not 4 violate the law. I mean potentially that 5 possibility exists. 6 RL Q. Tell me where that potentiality 7 exists. 8 DI MR. COOPER: This witness is not 9 offered for purposes of testifying on legal 10 matters and I am not going to allow this 11 witness to provide testimony with respect 12 to his understanding of the law. He is 13 neither an expert, nor is he being offered 14 as a witness capable of testifying on the 15 law and I am going to direct him not to 16 answer questions outside of the scope of 17 his expertise and his designation as a 18 witness. 19 Q. Have you ever seen any postings in 20 universities or in academic journals or by 21 cryptographers that you would consider not to be 22 trafficking? 23 A. I don't recall ever seeing such 24 postings. Period. 25 Q. Have you ever looked at academic INTERIM COURT REPORTING 72 1 Jacobsen 2 sites? 3 A. Have I? 4 Q. Yes. 5 A. No. 6 MR. GARBUS: Mark this as the next 7 exhibit. 8 (Defendants' Exhibit 13, three-page 9 document dated 2/8/00, marked for 10 identification, as of this date.) 11 BY MR. GARBUS: 12 Q. Wasn't a cease and desist letter 13 sent out to Carnegie Mellon University concerning 14 the posting of deCSS? 15 MR. COOPER: Let me just, for the 16 record, note that the witness has been 17 provided a document which appears to be a 18 letter from the MPAA to a Mark Poepping, 19 which appears to be a correspondence 20 falling within the description Mr. Garbus 21 just made. 22 A. I mean it would appear from this 23 Exhibit that the answer is yes. 24 Q. Do you know whether or not any 25 copies of DVDs were made from the posting at INTERIM COURT REPORTING 73 1 Jacobsen 2 Carnegie Mellon University? 3 MR. COOPER: Calls for 4 speculation. 5 A. I do not. 6 Q. Did you ever try and determine that? 7 A. No. 8 Q. Do you know what use was being put 9 at Carnegie Mellon to the posting of the deCSS? 10 A. I do not. 11 Q. Did you ever make any inquiry -- by 12 "you" I mean the MPAA -- before or after you sent 13 the letter to Carnegie Mellon University? 14 MR. COOPER: Would you read back 15 the question. 16 (Record read.) 17 MR. COOPER: I just note some 18 inquiry must have been done in order to 19 send the letter. You mean to distinguish 20 that? 21 Q. In other words, did you ever make 22 any inquiry into Carnegie Mellon University as to 23 why it was being posted before you sent the letter? 24 A. Did I? No. 25 Q. By "I," I am talking about you, the INTERIM COURT REPORTING 74 1 Jacobsen 2 MPAA, the nine plaintiffs. 3 A. I don't know. 4 Q. Was any distinction made before the 5 cease and desist letters were sent out as to who 6 should receive them within that large group of 7 people who had posted deCSS? 8 MR. COOPER: If I understand your 9 question, I just want to admonish the 10 witness to exclude from his answer any 11 information that comes solely through 12 conversations in which counsel 13 participated. 14 A. I don't have an answer that I could 15 make which would not involve discussions with 16 counsel. 17 MR. GARBUS: Read back the 18 question and the answer. 19 (Record read.) 20 BY MR. GARBUS: 21 Q. When did you graduate from law 22 school? 23 A. 1969. 24 Q. Which law school did you go to? 25 A. Northwestern University . INTERIM COURT REPORTING 75 1 Jacobsen 2 Q. Which college did you go to? 3 A. Valparaiso University. 4 V-A-L-P-A-R-A-I-S-O. 5 Q. What did you do after you left law 6 school? 7 A. I went to work for the Federal 8 Bureau of Investigation. 9 Q. For how long? 10 A. Twenty-five and a half years. 11 Q. What kind of work did you do for the 12 Federal Bureau of Investigation? 13 A. I was a special agent. 14 Q. What were your duties there? 15 A. Wide variety, but I worked many 16 different types of violations. For a period of 17 time I was our in-house office legal counsel and 18 for the last twelve years I was supervisor of 19 various squads and programs. 20 RL Q. Before when you said you could see 21 how postings could be nonviolative, is the Carnegie 22 Mellon such a posting? 23 DI MR. COOPER: I will make the same 24 objection with respect to the last 25 question. Calling for a legal conclusion INTERIM COURT REPORTING 76 1 Jacobsen 2 and being outside the scope of this 3 witness' expertise in the area for which he 4 has been designated. I direct him not to 5 answer. 6 BY MR. GARBUS: 7 Q. Can you see any postings that you as 8 a senior vice president and director of worldwide 9 anti-piracy would not constitute any involvement in 10 "trafficking"? 11 MR. COOPER: Read back the 12 question. 13 (Record read.) 14 MR. COOPER: In addition to the 15 objections to the prior question, I 16 believe that this is an incomplete 17 hypothetical and calls for speculation. 18 Q. Go ahead. 19 A. Can I assume you are talking about 20 deCSS posting? 21 Q. Yes. 22 A. For purposes of distribution to 23 anybody that wants to pick it up on the net? 24 Q. No. In other words, if Carnegie 25 Mellon posts it, does that necessarily mean that INTERIM COURT REPORTING 77 1 Jacobsen 2 Carnegie Mellon wants anybody on the net to have 3 it? Is that the sole reason for Carnegie Mellon to 4 post it? 5 MR. COOPER: Same objection as to 6 the last question. The witness is not 7 here to speculate about the purposes that 8 Carnegie Mellon may have in posting 9 anything. 10 A. I do not know what the reason was 11 that they posted it for. I mean I can't attribute 12 a reason for them without knowing what the facts 13 were. 14 Q. Do you know where Carnegie Mellon 15 posted it? 16 A. I do not. 17 Q. Do you know whether any 18 cryptographers posted deCSS? 19 A. I do not. 20 Q. Can you see any reason why 21 cryptographers would post deCSS? 22 MR. COOPER: Calls for 23 speculation. It is an incomplete 24 hypothetical. 25 A. I don't know. I am not a INTERIM COURT REPORTING 78 1 Jacobsen 2 cryptographer. 3 Q. Have you ever had any training in 4 cryptography? 5 A. No. 6 Q. Have you seen the affidavit of Frank 7 Stevenson in this case where he indicates he is 8 going to write an article, including deCSS in it? 9 A. I have not seen Mr. Stevenson's 10 affidavit. 11 Q. Is it your view that writing an 12 academic article, including deCSS in that article 13 would be trafficking? 14 MR. COOPER: Calls for a legal 15 conclusion. It is outside the ambit of 16 this witness' designation. 17 Q. Go ahead. 18 A. I'm not sure that I understand what 19 you mean by "including deCSS in the article." 20 MR. COOPER: It is also an 21 incomplete hypothetical. 22 RL Q. If an academic were to write about 23 the method by which deCSS was arrived at, is it 24 your understanding that that article would be 25 violative of Section 1201? INTERIM COURT REPORTING 79 1 Jacobsen 2 DI MR. COOPER: This witness has not 3 been designated and is not here to testify 4 about hypothetical legal situations which 5 call for legal conclusions. I direct him 6 not to answer such questions. 7 RL Q. Is it your understanding that it 8 would be piracy if an academic wrote an article 9 describing how deCSS was created? 10 MR. COOPER: Same objections. 11 Q. Go ahead. 12 MR. COOPER: Same direction. 13 MR. GARBUS: Not to answer? 14 DI MR. COOPER: I directed him not to 15 answer. 16 MR. GARBUS: Not to answer? 17 MR. COOPER: Yes. 18 MR. GARBUS: I thought we had an 19 understanding that the witness would 20 answer questions and that the judge would 21 then rule on them. I didn't understand 22 that there would be directions not to 23 answer. Is your position that you will 24 direct him not to answer until such time 25 as a judge rules on the question? INTERIM COURT REPORTING 80 1 Jacobsen 2 MR. COOPER: I'm not sure what 3 understanding you are referring to. I'm 4 not aware of any understanding in this 5 case that would change the rules of 6 Federal Evidence which require and as 7 well allow that I make objections with 8 respect to the attorney-client privilege 9 and as well as the competency to answer 10 questions on an expert basis. 11 If this witness were designated 12 to testify in expert matters, I would 13 view it differently. But he is not. 14 He is here to testify about factual 15 matters. 16 MR. GARBUS: We will get a ruling. 17 This witness is being asked to testify 18 about piracy and I am asking him what 19 constitutes piracy and what constitutes 20 trafficking, and what is violative of 21 trafficking laws. 22 MR. COOPER: My objection is not 23 as to any factual matters within this 24 witness' knowledge. My objection is to 25 hypothetical legal matters as to which INTERIM COURT REPORTING 81 1 Jacobsen 2 you are seeking a legal opinion. 3 Q. Have you advised any academic 4 institutions that you consider the posting of deCSS 5 to be piracy? 6 MR. COOPER: Objection as to form. 7 It's vague. 8 Q. Go ahead. 9 A. If you -- well, I mean Exhibit 13 10 indicates or establishes the fact that we have sent 11 to a university a cease and desist letter regarding 12 the posting of the deCSS circumvention device. 13 Q. So does that mean that you have 14 concluded that irrespective of the purpose for 15 which that university posted the deCSS, it would be 16 a violation of the anti-piracy statute? 17 MR. COOPER: The letter speaks for 18 itself. If you are asking the witness to 19 draw a conclusion, I object on that 20 basis. If you are asking the witness to 21 testify about the internal conclusions of 22 the MPAA with respect to the legality, I 23 direct the witness not to answer if the 24 sole source of that information is from 25 conversations with counsel. INTERIM COURT REPORTING 82 1 Jacobsen 2 A. I am confused. I'm sorry. 3 THE WITNESS: Please read back the 4 question and what my counsel just said. 5 (Record read.) 6 A. I will have to not answer, because 7 the source of the information would be from 8 conversations with counsel. 9 Q. Do you know enough about 10 cryptography to tell me whether or not the 11 publication of deCSS would provide a valuable tool 12 for the academic discipline of cryptography? 13 A. I do not. 14 Q. Do you know enough about 15 cryptography to tell me whether or not the 16 publication of the entire deCSS code would be of 17 value to the academic study of cryptography? 18 A. I do not. 19 Q. Do you know whether or not anyone -- 20 when you said "you," you were speaking on behalf of 21 yourself, the MPAA, and the nine movie studios? 22 MR. COOPER: Would you -- I don't 23 know how the answer to your last answer 24 could possibly be "yes," but would you 25 read back the prior two questions? INTERIM COURT REPORTING 83 1 Jacobsen 2 MR. GARBUS: I have already asked 3 him -- when I say "you," I mean you, the 4 MPAA, the movie studios. 5 MR. COOPER: I understand what you 6 mean. I thought -- 7 MR. GARBUS: He agreed to that. 8 If you want, I will just go through it 9 and I will ask the same question ten 10 different times. 11 MR. COOPER: That's fine. I just 12 want -- before we go into that, I just 13 want to have the last two questions read 14 back. 15 (Record read.) 16 MR. COOPER: Let me just say that 17 from the specific questions you asked, I 18 don't think a reasonable person could 19 have concluded that you wanted the 20 witness to testify not only about his own 21 personal knowledge, but about the 22 knowledge of every person employed by any 23 of the plaintiffs, excluding Time Warner 24 or any of the employees of the MPAA, and 25 I believe the witness manifestly INTERIM COURT REPORTING 84 1 Jacobsen 2 testified about his personal knowledge in 3 answer to those two questions. 4 Q. After we get past your personal 5 knowledge, do you know of anybody at the MPAA -- 6 MR. GARBUS: Off the record. 7 (Record read.) 8 BY MR. GARBUS: 9 Q. Do you know anybody at the MPAA who 10 knows whether or not the publication of the method 11 of which deCSS is arrived at would be of value in 12 the study of cryptography? 13 A. I don't know if there is anybody at 14 the MPAA who has that type of knowledge about 15 cryptography. 16 Q. Have you had any discussions with 17 anyone at the MPAA concerning the potential uses of 18 deCSS, whether the code itself or the method at 19 which it was arrived at would be of value in the 20 academic discipline of cryptography? 21 MR. COOPER: Excluding discussions 22 with counsel. 23 A. No. 24 Q. Do you know of anybody at the MPAA 25 who would know about the value of an article INTERIM COURT REPORTING 85 1 Jacobsen 2 describing reverse engineering in the academic 3 discipline of cryptography? 4 MR. COOPER: In the abstract or 5 with respect to deCSS? 6 MR. GARBUS: With respect to 7 deCSS. 8 A. I don't know if there is anybody at 9 the MPAA who would have that knowledge. 10 Q. Do you know what reverse engineering 11 is? 12 A. Generally. 13 Q. Have you seen any documents that use 14 the term reverse engineering and deCSS at either 15 the MPAA or the movie studio plaintiffs? 16 MR. COOPER: That's a "yes" or 17 "no" question. 18 A. Together? Where they used them 19 together? 20 Q. Yes. 21 A. I believe I have. 22 Q. Where are those documents? 23 A. I think they are pleadings in this 24 case. 25 Q. Other than the pleadings. INTERIM COURT REPORTING 86 1 Jacobsen 2 A. I think there may be some -- there 3 is a possibility that on the website there may be 4 some FAQs that deal with -- I don't recall if they 5 have reverse engineering and deCSS in the same 6 document, but it's possible. 7 Q. Have you downloaded it? 8 A. Discussing this case. 9 Q. Which websites? 10 A. I believe our website, the MPAA 11 website. 12 Q. Other than the MPAA website? 13 A. Not that I am aware of. 14 Q. Do you know of any cryptographers at 15 the movie studios? 16 A. I do not. 17 Q. Do you know whether any 18 cryptographers were hired by the MPAA or the movie 19 studios prior to the institution of this lawsuit? 20 MR. COOPER: That's a "yes" or 21 "no" question. 22 A. I don't know. 23 Q. Do you know whether any 24 cryptographers were hired by the MPAA or the movie 25 studios after the institution of this lawsuit? INTERIM COURT REPORTING 87 1 Jacobsen 2 A. I don't know if Mr. Schumann is a 3 cryptographer or not. 4 Q. The only person that you know that 5 has been hired as an expert with respect to this 6 case by either the MPAA or Proskauer or the movie 7 studios is Mr. Schumann; is that right? 8 MR. COOPER: Exclude from that 9 answer anything you know only through 10 discussions with counsel. 11 A. Yes. 12 Q. Have you had any discussions 13 yourself with any cryptographers who might become 14 potential witnesses in this case? 15 A. I have not. 16 Q. To your knowledge, has anybody at 17 any of the movie studios thus far had any 18 conversations with any cryptographers or scientists 19 who might become witnesses in this case? 20 MR. COOPER: Same admonition with 21 respect to conversations with counsel. 22 A. I don't know of any. 23 Q. When you say you don't know of any, 24 since you are in charge of the worldwide 25 Anti-Piracy Unit, would you think that any would INTERIM COURT REPORTING 88 1 Jacobsen 2 have been hired without your knowledge? 3 MR. COOPER: You are talking about 4 hired in connection with this litigation? 5 MR. GARBUS: Hired in connection 6 with the deCSS issue. 7 MR. COOPER: Lacks foundation. 8 A. By the movie studios or by MPAA? 9 Q. Either. 10 A. By MPAA, I would expect that I would 11 know. By the movie studios, I don't know whether I 12 would know or not. 13 Q. Has anyone at the movie studios told 14 you that they have hired any scientists, academists 15 or cryptographers with respect to the deCSS suit? 16 MR. COOPER: Again, excludes from 17 your answer privileged communications. 18 A. No. 19 Q. Do you know what DivX is? 20 MR. COOPER: D-I-V-X? 21 MR. GARBUS: Yes. 22 A. In what context? I know of several 23 DivX's. 24 Q. Which are? 25 A. The original DivX I knew about was a INTERIM COURT REPORTING 89 1 Jacobsen 2 format for DVD. It was a competing format to a 3 normal type of DVD. It was heavily encrypted. 4 Rather than being sold, it was rented. You rented 5 it for a period of time. You had to use a special 6 player. It was a direct payment off that special 7 player and off the reading of the disk. That 8 company, as far as I know, is now defunct. 9 Q. Do you know what Livid is? 10 A. No, I do not. 11 Q. Do you know what Linux is? 12 A. Generally. 13 Q. What is it? 14 A. My understanding is it's a computer 15 operating system. 16 Q. Have you ever worked with it? 17 A. I have not. 18 Q. Has anyone at the MPAA ever worked 19 with it? 20 MR. COOPER: Lacks foundation. 21 Outside of this witness' scope of 22 testimony. 23 A. I don't know the answer. Not to my 24 knowledge, but somebody could have. 25 CONFIDENTIAL INTERIM COURT REPORTING 90 1 Jacobsen 2 you know if she has ever used the Linux system? 3 A. I don't know. 4 Q. Do you know if she has ever used 5 Redhat? 6 A. I don't know. 7 Q. Do you know what Redhat is? 8 A. It has something to do with Linux. 9 I know there is a stock that was released on 10 redhead. Outside of that, I have very little 11 information. 12 Q. Do you know what Corel is? 13 A. I have seen Corel in terms of 14 software programs, but I don't know anything 15 besides that. 16 Q. I show you the second sentence of 17 Paragraph 14 of Stevenson. 18 MR. COOPER: The Declaration of 19 Frank Stevenson. 20 Q. Paragraph 14, Line 2. He says, "I 21 think a paper about the efforts of the Livid forum 22 and other related and unrelated individuals in 23 connection with CSS and DVDs will provide extremely 24 useful information for a wide variety of 25 individuals, scientists, academics, including INTERIM COURT REPORTING 91 1 Jacobsen 2 cryptologists and persons interested in the DVD 3 area." 4 Now I ask whether or not you have an 5 opinion as to whether or not his statement is 6 accurate or whether or not you have an opinion 7 about whether or not the substance of his statement 8 is accurate. Namely, that articles and papers 9 about CSS and DVDs provide useful information for a 10 wide variety of individuals, scientists, and 11 academics. 12 MR. COOPER: Outside of this 13 witness' area of testimony and calls for 14 an opinion for which I am not aware he is 15 qualified to give. 16 A. I have no opinion. 17 Q. Had you ever heard of Mr. Stevenson 18 before this case? 19 A. No. 20 Q. Do you know of any other eminent 21 cryptologists in the United States? 22 MR. COOPER: Assumes facts not in 23 evidence. 24 A. I don't know any cryptologists. 25 Q. Have you ever read any academic INTERIM COURT REPORTING 92 1 Jacobsen 2 journals on the science of cryptology? 3 A. I have not. 4 Q. Have you ever attended any lectures 5 on the science of cryptology? 6 A. I have not. 7 Q. Do you know what the ACM is? 8 A. No. 9 Q. Do you know of a publication that 10 the ACM publishes called "The ACM Journal"? 11 A. I am not aware of that publication. 12 Q. Do you know that the San Jose 13 Mercury News links to sites that now post to deCSS? 14 MR. COOPER: Assumes facts not in 15 evidence. 16 Q. Do you know whether that is so or 17 not? 18 A. I do not know. 19 Q. Do you know whether or not the 20 Associated Press, when it came out with its story 21 on Johansen in October-November, the young man who 22 allegedly was involved in the breaking of the code, 23 carried sites that posted deCSS? 24 A. I do not. 25 Q. Do you know whether or not APB News, INTERIM COURT REPORTING 93 1 Jacobsen 2 which is the Associated Press website, presently 3 carries postings to deCSS? 4 MR. COOPER: In answering these 5 questions, I assume you are excluding 6 knowledge only through counsel? 7 MR. GARBUS: Yes. 8 A. I do not. 9 Q. Do you know whether the New York 10 Times has postings to deCSS and whether or not it 11 links to sites that refer you to the actual posting 12 of deCSS? 13 A. I do not. 14 Q. Do you know how many sites today 15 have deCSS on them, the actual code? 16 MR. COOPER: Posted as opposed to 17 linked at this time? 18 MR. GARBUS: Yes. 19 A. I'm not sure what you mean by the 20 actual code. Do you mean that the code is spelled 21 out or that the software utility is present on the 22 site? 23 Q. Both. 24 A. I do not know. 25 Q. Do you know for either one? INTERIM COURT REPORTING 94 1 Jacobsen 2 A. I know generally how many sites we 3 have found. I have no idea how many sites actually 4 carry it. 5 Q. How many sites have you found now 6 that actually carry it? 7 A. As of last week, roughly somewhere 8 between 600 and 1,000 perhaps. 9 Q. And are these sites in the United 10 States, overseas, or both? 11 A. Both. 12 Q. Do you know how many people have 13 downloaded on pieces of paper deCSS? 14 MR. COOPER: Assumes facts not in 15 evidence and I think it misconstrues what 16 deCSS is and whether it is capable of 17 being -- 18 MR. GARBUS: Downloaded as an 19 utility. 20 A. I do not, no. 21 Q. Do you know whether it is more or 22 less than half a million? 23 A. I do not know. 24 Q. Do you know if it is more or less 25 than 10 million? INTERIM COURT REPORTING 95 1 Jacobsen 2 A. I do not know. 3 Q. Have you ever tried to determine how 4 many downloads of the utility have been done since 5 October-November? 6 A. No. 7 MR. GARBUS: Off the record. 8 (Discussion off the record.) 9 BY MR. GARBUS: 10 Q. When you say had been 600 to 1,000, 11 you mean since October or November of 1999? 12 A. That's correct. 13 Q. Of that 600 to 1,000, how many have 14 taken off the posting? 15 A. Again, I don't have an exact number, 16 but I would say roughly 60 percent. That would be 17 posting and linking. I'm sorry. You just said 18 posting. But posting and linking, that would be 19 the numbers. 20 Q. Let's break it down. When you gave 21 me the number of 600 to 1,000, were you talking 22 about posting or posting and linking? 23 A. Talking about cumulative, which 24 would include both. I don't have an estimate as to 25 which is which. INTERIM COURT REPORTING 96 1 Jacobsen 2 Q. So that if somebody referred you to 3 the site that had deCSS, that would be included in 4 the 600 to 1,000; is that right? 5 A. If someone linked to a deCSS? 6 Q. Yes. 7 A. That's correct. 8 Q. Does that include in that number the 9 New York Times, the San Jose Mercury News, or the 10 APB News, to your knowledge? 11 MR. COOPER: Calls for 12 speculation. 13 A. I don't know that we have located 14 those sites, so I don't know whether they are 15 included or not. 16 Q. You have a list of those sites that 17 you have located? 18 A. The C & D letters that have been 19 sent out would be representative of the sites that 20 we have located. 21 Q. So you would have sent out, then, 22 roughly 600 to 1,000 letters; is that right? 23 A. Yes. 24 Q. And these would be letters going to 25 places either that post or that link? INTERIM COURT REPORTING 97 1 Jacobsen 2 A. I misstated it. Let me take that 3 back. We may or may not have sent a letter to 4 every site that was identified. So, I don't know 5 that there is one letter per site. 6 Q. Were you involved in any 7 decision-making process about whether or not to 8 send a letter to a particular site that had a 9 posting or a linking? 10 MR. COOPER: That's a "yes" or 11 "no" question. 12 A. No. 13 Q. Who was? 14 A. Would have been our in-house 15 counsel. 16 Q. Who is your in-house counsel? 17 A. Mark Litvack and/or Lori Donahue. 18 Q. To your knowledge, was there any 19 discussion about sending or not sending the letter 20 to any site that you might determine its posting 21 would not be violative of the anti-piracy statute? 22 MR. COOPER: I think the witness, 23 if I understood his testimony, just 24 testified that the only conversations on 25 decisions to send or not send letters INTERIM COURT REPORTING 98 1 Jacobsen 2 were conducted by counsel. 3 I think your question was just 4 trying to elicit the specific substance 5 of those conversations with respect to 6 what was or was not considered and it's 7 difficult for me to understand how it 8 wouldn't intrude into the 9 attorney-client privilege. 10 Q. Were there any internal discussions 11 at the MPAA, you or any people of your staff, 12 outside the presence of counsel, discussing whether 13 any of the postings would not be violative of 14 piracy concepts? 15 A. Not that I can recall. 16 MR. COOPER: Off the record. 17 (Discussion off the record.) 18 MR. GARBUS: It is now 12:15. 19 Let's come back at 1:15. 20 (Luncheon recess taken at 12:15 p.m.) 21 --o0o-- 22 A F T E R N O O N S E S S I O N 23 (Time noted: 1:20 p.m.) 24 K E N N E T H A. J A C O B S E N, resumed and 25 testified as follows: INTERIM COURT REPORTING 99 1 Jacobsen 2 CONTINUED EXAMINATION 3 BY MR. GARBUS: 4 Q. You used the term or the number 600 5 to 1,000 as the number of postings or linkings that 6 were relevant to deCSS. Do you recall that? 7 A. I recall using the number 600 to 8 1,000, indicating those were the sites we had 9 located. 10 Q. Do you recall how many sites you had 11 located, let's say, as of November 1st? 12 A. I don't. 13 Q. Is there any such documentation in 14 the MPAA as to when you learned of which sites? 15 When I say the MPAA, I mean the MPAA, you, the 16 movie studios. 17 A. Outside of the actual letters that 18 were sent -- 19 Q. The cease and desist letters you 20 mean? 21 A. Right. 22 -- the actual cease and desist 23 letters, going back to November, I'm not sure we 24 have any list or any file that would indicate any 25 additional information. INTERIM COURT REPORTING 100 1 Jacobsen 2 Q. Did the cease and desist letters go 3 out all at one time or over a period of time? 4 A. They go out over a period of time. 5 Q. When did they start to go out? 6 A. Regarding deCSS? 7 Q. Yes. 8 A. I don't remember the exact date. 9 Q. When did they stop going out? When 10 was the last date? 11 MR. COOPER: Assumes facts not in 12 evidence. 13 A. We are still sending them. They 14 haven't stopped. 15 Q. Now, tell me something about the DVD 16 CCA. Who are they? 17 A. My understanding is the DVD CCA is a 18 nonprofit organization which was created for the 19 purpose of licensing the CSS, the content 20 scrambling system for DVDs. 21 Q. When was that created? 22 A. I don't know the date. 23 Q. Was it in 1999 or prior to that? 24 A. I honestly don't know. 25 Q. Do you know who created it? Which INTERIM COURT REPORTING 101 1 Jacobsen 2 company? 3 MR. COOPER: I note for the record 4 the lack of foundation. In fact, this is 5 not within the purview of the witness' 6 designated testimony. 7 A. I actually don't know. 8 Q. Do you know if any of the plaintiff 9 movie companies in this case created it, the DVD 10 CCA? 11 MR. COOPER: Same objection. 12 A. Do you mean, by "created," if they 13 actually brought it into existence as a legal 14 entity? 15 Q. Yes. 16 A. I don't know the answer. 17 Q. Do you know if any of them were 18 participants in DVD CCA? 19 MR. COOPER: Ambiguous. Also 20 lacks foundation. 21 A. I don't know what you mean by 22 "participants." 23 Q. Do you know if any of them funded? 24 A. I don't know. 25 Q. Do you know if any of them have INTERIM COURT REPORTING 102 1 Jacobsen 2 employees who work for the DVD CCA? 3 A. I don't know for sure. I don't 4 believe so. 5 Q. Do you know how many people the DVD 6 CCA employs? 7 A. I don't. 8 Q. Do you know who Mr. Hoy is? 9 A. I have never met him, but I know the 10 name John Hoy. 11 Q. Have you spoken to him on the phone? 12 A. No. 13 Q. Have you spoken to anyone at the DVD 14 CCA concerning deCSS? 15 A. No. 16 Q. Do you know if any of the movie 17 plaintiffs have spoken to anyone at the DVD CCA? 18 MR. COOPER: Exclude any 19 information you have only through 20 counsel. 21 A. In relationship to deCSS? 22 Q. Yes. 23 A. I don't know. 24 Q. Who is the General Counsel for the 25 MPAA? INTERIM COURT REPORTING 103 1 Jacobsen 2 A. The General Counsel for the MPAA in 3 Encino is Simon Barsky. 4 Q. Is there a different General Counsel 5 in New York or is he the General Counsel? 6 A. We do not have a General Counsel in 7 New York. Fritz Attaway, I believe, is also 8 designated as the senior vice president and General 9 Counsel in Washington, I think. 10 Q. Is there a Deputy General Counsel? 11 A. In Encino there is. 12 Q. Who is that? 13 A. That would be Greg Geckner. 14 Q. Are there any other Deputy General 15 Counsel? 16 A. I don't know. I don't think so. 17 Q. What is Mr. Litvack's title? 18 A. His title is vice president and 19 counsel for -- legal counsel for worldwide 20 anti-piracy. 21 Q. You described your responsibilities 22 this morning for overseeing how the program runs, 23 the anti-piracy program runs, the development of 24 strategies, the budget, and correspondence about 25 the program to member companies and their INTERIM COURT REPORTING 104 1 Jacobsen 2 representatives. Is that right? 3 A. That's generally correct, yes. 4 Q. When you say responsibility for 5 overseeing how that program runs, can you tell me 6 something more about what that means? 7 A. I'm ultimately responsible for the 8 design and implementation of whatever strategies we 9 use to address -- 10 Q. -- piracy? 11 MR. COOPER: Are you going to let 12 him finish the answers? 13 A. To address basically the piracy of 14 our member companies' audio-visual product. 15 Q. Who determines, then, what is or is 16 not piracy? Is that your determination? 17 A. In a broad sense, I would make the 18 determination about the categories of theft of our 19 product, which I consider to be piracy. 20 Q. Tell me what those categories are. 21 A. Generally, the illegal manufacture, 22 distribution, sale of copies of our audio-visual 23 product which have been unauthorized. 24 MR. COOPER: There is more. 25 A. Illegal public performance of our INTERIM COURT REPORTING 105 1 Jacobsen 2 member company products. 3 Q. What do you mean by illegal public 4 performance? 5 A. Somebody shows the movie without the 6 appropriate authority, exhibits the movie without 7 appropriate authority, broadcasts a movie without 8 appropriate authority. There would be the 9 manufacture, distribution of circumvention devices, 10 situations where there is an unauthorized 11 retransmission of our member company product, and 12 that would generally cover the scope of what we do. 13 Q. Have you ever received a copy of a 14 DVD movie when the movie is on a DVD disk in a 15 decrypted form? 16 A. Not that I know of. 17 Q. When I say "you," I am talking about 18 you, the movie studies. 19 Other than the claims letters that 20 you sent out relating to deCSS, I presume that you 21 have sent out other claim letters referring to 22 other potential infringements of the DVDs; is that 23 right? 24 MR. COOPER: By "claim letters," 25 you mean what he previously referred to INTERIM COURT REPORTING 106 1 Jacobsen 2 as cease and desist letters? 3 MR. GARBUS: Cease and desist 4 letters. 5 A. Yes. I think that's accurate. 6 Q. To which groups? 7 A. Anyone who might be offering for 8 sale a DVD on the internet, which we believe is 9 unauthorized. 10 Q. Any other? 11 A. If we identified a site which 12 offered what was claimed to be a DVD which was 13 being offered in downloadable media or file 14 transfer type circumstance on the internet, we 15 might send them a cease and desist letter. 16 Q. Approximately how many cease and 17 desist letters relating to deCSS were present? 18 A. Somewhere between 600 and 1,000, I 19 believe. 20 Q. How many other cease and desist 21 letters were sent since you have been in your 22 position of April 1st, relating to alleged pirated 23 companies of DVDs? 24 A. I don't know. 25 Q. Thousands? INTERIM COURT REPORTING 107 1 Jacobsen 2 A. No. 3 Q. More or less than fifty? 4 A. I don't know, because I do not have 5 an accurate recollection of which sites might have 6 been offering DVDs as opposed to other types of 7 copies. 8 Q. Going back to, let's say, October 1, 9 1999, if you know this, how many cease and desist 10 letters have been sent referring to DVDs by you or 11 your predecessor? 12 A. I don't know. 13 Q. Again, would you think it would be 14 more or less than 1,000? 15 A. My guess would be it would be less 16 than 1,000. 17 RQ MR. GARBUS: I would ask you to 18 produce them. 19 MR. COOPER: Can I just have the 20 question read back so I can make a note 21 of precisely what the description of 22 documents was? 23 (Record read.) 24 MR. COOPER: Your request is for 25 the production of any C & D letters that INTERIM COURT REPORTING 108 1 Jacobsen 2 refer to hard goods in the DVD medium; is 3 that correct? 4 MR. GARBUS: Yes. 5 MR. COOPER: I will take it under 6 advisement. 7 MR. GARBUS: It wouldn't be just 8 hard goods. It would be internet sales? 9 Does that come within your definition? 10 MR. COOPER: The reason I asked 11 for the clarification is so that I can 12 understand how to distinguish one item 13 from another. 14 My belief is that if somebody is 15 offering a product on the internet 16 which consists of a physical disk which 17 would then have to be transported 18 through the mail or some other method 19 of shipment, that that is treated in 20 the same way as other hard good sales 21 and then that's distinct from some kind 22 of downloadable medium. 23 Are you making the same 24 distinction? 25 MR. GARBUS: Off the record. INTERIM COURT REPORTING 109 1 Jacobsen 2 (Discussion off the record.) 3 MR. COOPER: Off the record the 4 request has been clarified to include in 5 addition to DVD hard goods, the defendant 6 is also requesting C & D letters that 7 refer to DVD motion picture in a 8 downloadable medium. Is that correct? 9 MR. GARBUS: Thank you. 10 BY MR. GARBUS: 11 Q. You said also that one of your jobs 12 are the strategies that are developed with respect 13 to those places where you find copying of DVDs that 14 you perceive to be violations of 1201. 15 Have you ever sent out a letter to 16 anyone who has made a copy of a DVD for home use? 17 MR. COOPER: Read back the 18 question. 19 (Record read.) 20 MR. COOPER: It is compound, 21 mischaracterizes the witness' testimony. 22 Q. Can you answer it? 23 A. What is your reference to 1201? Is 24 that to the Digital Millennium Copyright Act? 25 MR. GARBUS: Yes. INTERIM COURT REPORTING 110 1 Jacobsen 2 A. The strategies that I developed are 3 much broader than what evolves around that. 4 Q. Tell me the strategy that you 5 developed with respect to the deCSS? 6 A. In part, it would deal with 7 circumvention devices. 8 Q. Have you sent out any cease and 9 desist letters to individuals or institutions who 10 have created circumvention devices? 11 MR. COOPER: You mean to exclude 12 the ones that you have already put into 13 evidence and asked him about? 14 MR. GARBUS: Yes. 15 A. In addition to deCSS? 16 Q. Yes. 17 A. I can't recall whether we have or we 18 haven't, but we would, in appropriate cases, and I 19 can't remember whether we actually have or we 20 actually haven't in those cases. 21 For instance, cable boxes that are 22 used to steal cable signal or perhaps Smart Cards 23 for satellite signal theft. 24 Q. Have you ever sent a cease and 25 desist letter to someone who has copied a DVD for INTERIM COURT REPORTING 111 1 Jacobsen 2 home use? 3 A. I think I already testified I know 4 of nobody that I can say has copied a DVD for home 5 use. So, the answer would have to be I don't know 6 if we have or we haven't. 7 Q. When you say that you deal with the 8 strategies, is it part of your strategy, once you 9 learn whether or not people have been copying it 10 for home use, to try and stop that? 11 MR. COOPER: Calls for 12 speculation, assumes facts not in 13 evidence. The witness has testified 14 repeatedly that he is not aware of one 15 such instance and now you are asking for 16 their policy about what they do when they 17 find such an instance. It is a 18 tautology. 19 A. I'm sorry. I lost the question in 20 the discussion. 21 (Record read.) 22 A. To try and stop the copying. 23 Q. For home use. 24 A. I'm sorry. Of what? 25 Q. The DVD? INTERIM COURT REPORTING 112 1 Jacobsen 2 A. Well, we have not faced that issue 3 yet, because I am not aware of any solid case where 4 that has happened. 5 Q. Do you have any policies or 6 procedures that you are discussing concerning 7 home-use copying of DVDs? 8 MR. COOPER: I will be surprised 9 if he can answer this without intruding 10 on the privilege. 11 A. The answer is "no." 12 Q. Tell me the manner in which you 13 discuss strategies to deal with issues like deCSS. 14 Is there a committee within your department that 15 discusses that? Is it you and several people? Do 16 you discuss it with counsel? Or all of the above? 17 A. In the particular issue of deCSS, my 18 initial discussions commence with counsel. 19 Q. Did you and your staff make 20 determinations about what is and what is not piracy 21 and what is and what should not be gone after 22 through cease and desist letters? 23 A. My staff, including the legal people 24 that work for me, yes. 25 Q. Have you had any conversations about INTERIM COURT REPORTING 113 1 Jacobsen 2 whether a home copy of a DVD through deCSS 3 constitutes piracy? 4 MR. COOPER: Given the foundation 5 you have laid, I don't know how he can 6 answer that without specifically 7 providing the substance of 8 attorney-client communications. 9 Q. You had no conversations other than 10 with attorneys about whether or not making a home 11 copy constitutes piracy? 12 A. In the deCSS context? 13 Q. Right. 14 A. That is correct. 15 Q. You have had no conversations with 16 anybody at the MPAA, excluding counsel, about 17 whether or not making a home copy through deCSS is 18 piracy? 19 MR. COOPER: When you say 20 "excluding," you mean outside of the 21 presence of counsel? 22 MR. GARBUS: Yes. 23 A. I believe that's correct. 24 Q. Have you had any conversations where 25 there have been MPAA members, counsel, and third INTERIM COURT REPORTING 114 1 Jacobsen 2 parties or have these all been just meetings with 3 MPAA and counsel concerning whether or not a home 4 copy constitutes piracy? 5 A. By third parties, are you including 6 outside counsel that has been hired -- 7 Q. Other than lawyers. 8 A. The answer would be "no." 9 Q. Has Mr. Schumann been present at any 10 of these discussions? 11 A. Not while I was present, no. 12 Q. Have memorandum been made of these 13 conversations about whether or not making a home 14 copy constitutes piracy? 15 A. No. Not that I am aware of. 16 Q. Do you know how many universities 17 were sent a letter similar to the one that was sent 18 to Carnegie Mellon? 19 A. I don't have a number. 20 Q. Do you know how many academics 21 received cease and desist letters? 22 A. I do not. 23 Q. Does the name "Jon Johansen" mean 24 anything to you? 25 A. Yes. INTERIM COURT REPORTING 115 1 Jacobsen 2 Q. Does the term "MORE" mean anything 3 to you? 4 A. It is a term that I have heard. 5 Q. Do you understand that Johansen was 6 a member of MORE? 7 A. I don't know if he was or he wasn't. 8 Q. Do you understand that according to 9 Mr. Johansen, deCSS was created for the Linux 10 people by the Livid Group? 11 MR. COOPER: Assumes facts not in 12 evidence. 13 Q. Do you know anything about that one 14 way or the other? 15 A. I do not. 16 Q. Do you know whether or not deCSS was 17 given to the Linux groups or Livid groups prior to 18 the time it was made public in October? 19 A. I do not. 20 Q. Do you know whether Linux is 21 attempting to develop a DVD player? 22 MR. COOPER: I will note that this 23 is not within the ambit of this witness' 24 designated area of testimony and this 25 witness has not been established as INTERIM COURT REPORTING 116 1 Jacobsen 2 having technical expertise necessary to 3 testify to any of these questions. 4 A. When you refer to Linux developer, 5 I'm not sure who that would be. I thought that was 6 just a name for an operating system. 7 Q. Do you know whether or not there 8 were any discussions at the MPAA as to whether or 9 not it is the MPAA's policy that it is piracy to 10 reverse engineer CSS? 11 MR. COOPER: With all fairness to 12 your absolute entitlement to lay a 13 record, I don't see how he can answer 14 that question without intruding on the 15 substance of attorney-client 16 communications, based on what he has 17 testified so far. 18 I ask the witness whether he can 19 answer that without revealing the 20 substance of conversations with 21 attorneys. 22 THE WITNESS: I could not. 23 Q. Let me ask you two more questions. 24 MR. GARBUS: Off the record. 25 (Discussion off the record.) INTERIM COURT REPORTING 117 1 Jacobsen 2 Q. Is it MPAA's policy that it is 3 piracy to reverse engineer CSS? 4 MR. COOPER: He is asking you a 5 "yes" or "no" question, whether you know 6 if there is such a policy. 7 A. There is no policy on that issue. 8 Q. Have there been discussions, not the 9 subject of the discussions, but have there been 10 discussions about whether or not the MPAA should 11 have a policy that it is or is not piracy to 12 reverse engineer CSS? 13 MR. COOPER: That's a good example 14 of what I thought was intruding into the 15 subject matter. 16 MR. GARBUS: Merely having the 17 conversation. 18 MR. COOPER: You are asking 19 whether they have discussed it and I 20 think that is within the privilege. 21 Q. It is MPAA's policy that it is 22 piracy to make fair use of copyrighted material on 23 a DVD? 24 MR. COOPER: Read it back. 25 (Record read.) INTERIM COURT REPORTING 118 1 Jacobsen 2 MR. COOPER: The question is: 3 "yes" or "no." Do you know of such a 4 policy? 5 A. Let me get this straight. Is it the 6 policy that it is piracy to make fair use? There 7 is no such policy. 8 Q. Do you understand that it is the 9 MPAA's position that it is piracy to make fair use 10 of copyrighted material on a DVD, excluding from 11 that any conversations with attorneys? 12 MR. COOPER: Now you are saying 13 "position." Are you meaning to include 14 positions asserted in this litigation? 15 Because you have now distinguished 16 "positions" from "policies." 17 MR. GARBUS: Off the record. 18 (Discussion off the record.) 19 MR. GARBUS: Read back the 20 question. 21 (Record read.) 22 MR. COOPER: Answer whether or not 23 you know whether there is such a position 24 and then we will take it from there. 25 A. If I understand the question INTERIM COURT REPORTING 119 1 Jacobsen 2 correctly, you are asking me, does the MPAA have a 3 position that it is piracy to make fair use of 4 copyrighted information that's contained on a DVD. 5 We do not have such a policy, that I am aware of. 6 Q. Do you have a personal view of 7 whether or not it is piracy to make fair use of 8 copyrighted material on a DVD? 9 MR. COOPER: He is not here to 10 give his personal views. He is here 11 designated as a witness on behalf of 12 other parties and his personal view on 13 this subject is irrelevant. 14 Q. Go ahead. 15 THE WITNESS: Should I answer? 16 DI MR. COOPER: As long as your 17 personal view does not stem from an 18 attorney-client source, it is fine with me. 19 Although I maintain my objection that it's 20 not admissible in this lawsuit. 21 A. I hate to restate the question, but 22 in the discourse I get lost. 23 (Record read.) 24 A. Assuming that fair use has been 25 established by a court that says it's fair use, I INTERIM COURT REPORTING 120 1 Jacobsen 2 would then have to conclude that it would probably 3 not be piracy. 4 Q. Is it the MPAA's policy that it is 5 piracy to play DVD on a non-CSS equipped player? 6 MR. COOPER: It's complex and I 7 think it is an incomplete hypothetical. 8 A. I don't understand the question, 9 because I don't understand how -- I am assuming you 10 are talking about an encrypted DVD. I don't 11 understand how it would be played on a non-CSS 12 enabled player without some intervening causes. 13 Q. Let's assume that the intervening 14 cause was deCSS. 15 MR. COOPER: So now the question 16 is whether it is MPAA policy that using 17 deCSS to play an encrypted DVD is piracy? 18 MR. GARBUS: On a non-CSS equipped 19 player. 20 Q. In other words, if you buy a -- 21 excuse me. Answer the question. 22 MR. COOPER: This is a "yes" or 23 "no" question as to whether you know 24 that. 25 A. Read it back. INTERIM COURT REPORTING 121 1 Jacobsen 2 (Record read.) 3 MR. COOPER: Answer the question 4 "yes" or "no," whether you are aware of 5 such policy. 6 A. No. 7 Q. "No" meaning you are not aware of 8 such a policy? 9 A. That's correct. 10 Q. What is your position on it, the 11 MPAA's position on it as distinguished from policy? 12 MR. COOPER: Calls for a legal 13 conclusion. I think our position with 14 respect to such an issue to the extent 15 that it is relevant to this lawsuit will 16 come through the documents filed in 17 connection with the lawsuit. This 18 witness is not an appropriate source for 19 that information. I will instruct you 20 not to answer. 21 RL Q. What is your personal view holding 22 the position that you hold at the MPAA, whether or 23 not it is piracy to play DVD on a non-CSS equipped 24 player, either through the intervention of deCSS or 25 some other utility? INTERIM COURT REPORTING 122 1 Jacobsen 2 DI MR. COOPER: Whether I would let him 3 answer a question if he were here in his 4 individual capacity I don't know, but at 5 least in his representative capacity and 6 given the fact that it calls for a legal 7 conclusion, I am going to direct him not to 8 answer that question. 9 Q. Is there such a position -- don't 10 tell me what it is -- with respect to the first 11 thing I asked? Namely, reverse engineering CSS, 12 whether it's piracy to do that. Without telling me 13 what the position is, is there a position? 14 MR. COOPER: In fairness, you are 15 really asking the witness to litigate -- 16 MR. GARBUS: I am trying to follow 17 you. 18 MR. COOPER: I know and I 19 appreciate it. But what you are really 20 asking is, I think, asking about 21 litigation positions in this case. 22 MR. GARBUS: No, no. Not 23 necessarily. No, no, no. Not at all. 24 MR. COOPER: In the defenses that 25 you guys have raised. INTERIM COURT REPORTING 123 1 Jacobsen 2 MR. GARBUS: Not at all. I am 3 asking him -- I am not asking him to say 4 whether my legal defenses are right or 5 wrong. No. I am asking him what their 6 policy or positions or his views are on 7 each of these three things. 8 He doesn't say whether I am 9 right or wrong. I am not asking that. 10 I am just asking him what is his, the 11 MPAA's policy and positions on three 12 things. Namely, whether you can play 13 DVDs on a non-CSS equipped player, 14 whether you can make fair use of 15 copyrighted materials on a DVD, whether 16 you can reverse engineer CSS. 17 MR. COOPER: And my point was 18 those issues have been developed, so far 19 as I know, in connection with this 20 litigation. So what you are really 21 asking him to provide is information that 22 he has discussed with counsel and that's 23 the reason for my objection. 24 Q. So there were no positions developed 25 on this prior to litigation? INTERIM COURT REPORTING 124 1 Jacobsen 2 MR. COOPER: You can ask him if he 3 was aware of any discussions, outside of 4 discussions with legal counsel, and I 5 think he will tell you "no." 6 If that is the question, do you 7 have any such information outside of 8 discussions with legal counsel? 9 THE WITNESS: No. 10 BY MR. GARBUS: 11 Confidential 12 13 14 15 16 17 18 19 Q. Did you ever have a discussion with 20 any of them? Did you ever tell them whether it is 21 MPAA's policy or position that it is piracy to 22 reverse engineer CSS? 23 A. No. 24 MR. COOPER: Go ahead. I expected 25 that to be your answer. INTERIM COURT REPORTING 125 1 Jacobsen 2 A. No. 3 Q. With respect to those forty to 4 forty-five people, did you ever have a conversation 5 with them whether or not it was ever MPAA's policy 6 or position, prior to the institution of this 7 lawsuit, that to make fair use of copyrighted 8 materials on a DVD was considered to be piracy? 9 A. No. 10 Q. Did the question ever arise whether 11 playing a DVD on a non-CSS equipped player would be 12 considered by the MPAA, either its policy or 13 position, to be piracy? 14 MR. COOPER: Outside of 15 discussions involving counsel. 16 A. Not that I am aware of. 17 Q. Did you know, at any time, that 18 Linux had succeeded in making a DVD player? 19 A. I'm not sure who you refer to by 20 "Linux." I honestly thought it was just an 21 operating system. Is Linux an entity? I don't 22 know. 23 Q. Do you know whether or not there is 24 any open source program that allows DVD to be 25 played after it has been unscrambled by deCSS? INTERIM COURT REPORTING 126 1 Jacobsen 2 A. Are you asking me are there any 3 authorized license players that have been made for 4 DVD playback in an open source mode, such as Linux? 5 I believe that there have. 6 Q. Where? 7 A. I think recently there have been two 8 licenses issued to Linux-based players. 9 Q. When was that? 10 A. I don't know. 11 RQ MR. GARBUS: May I have copies of 12 those licenses? 13 MR. COOPER: Are you asking me? 14 MR. GARBUS: Yes. 15 MR. COOPER: I can't answer your 16 question. I don't know who has them, 17 whether they are in any of the parties' 18 possession, but I will take your request 19 under advisement. 20 Q. You said, "two Linux entities"? Is 21 that the description you used? 22 A. No. I believe two entities who 23 obtained licenses for DVD players, which would, in 24 fact, play DVDs on a Linux operating system. 25 Q. Do you know how they would do that? INTERIM COURT REPORTING 127 1 Jacobsen 2 Would they do it through the use of deCSS? 3 A. I haven't the slightest idea how 4 they would do it. 5 Q. So as you sit here today, you don't 6 know whether or not you have licensed systems that 7 of necessity depend on deCSS to play DVD movies? 8 MR. COOPER: Mischaracterizes the 9 witness' testimony and I think, more 10 importantly, neither the witness nor any 11 of the plaintiffs in this action are the 12 license source of the CSS. 13 Q. Do you know if DVD CCA entered into 14 any contracts with those two entities? 15 A. That was my understanding, that DVD 16 CCA had issued two licenses. 17 Q. Where did you get that understanding 18 from? 19 A. I don't remember. 20 Q. When did you get that information? 21 A. Recently. 22 Q. Within the last week? 23 A. I don't recall whether it was in the 24 last week, but it's recent. 25 Q. Was that within the last month? INTERIM COURT REPORTING 128 1 Jacobsen 2 A. I would say so, yes. 3 Q. Was that communication made to you 4 in a letter or orally? 5 A. I don't recall if I read it in a 6 digest or if it was communicated to me by someone 7 at MPAA. I don't remember. 8 Q. When you say a digest, what kind of 9 digest are you talking about? 10 A. A DVD report which comes out weekly 11 and I usually scan, and I may have read it there. 12 Q. Have you ever seen -- when I say 13 "you," you or any of the plaintiffs -- these 14 license agreements? 15 A. Have I? 16 MR. COOPER: Does your comment 17 right now, does that mean that you are 18 going to testify about your personal 19 knowledge as opposed to the knowledge of 20 the various plaintiffs, other than Time 21 Warner? 22 A. I'm not exactly sure what license 23 agreements you are referring to. 24 Q. Those two that you referred to 25 before. INTERIM COURT REPORTING 129 1 Jacobsen 2 A. I don't know whether any of the 3 member companies have seen those licensing 4 agreements. I have not. 5 Q. Do you know where those two entities 6 that entered into those license agreements were 7 from? Were they California entities? 8 A. I do not know. 9 Q. Were they American entities? 10 A. I don't remember. 11 Q. When you use the term "DVD report," 12 what report is that? 13 A. It's an independently published 14 weekly digest that comes out on DVD in its 15 development report. 16 Q. Who publishes it? 17 A. I don't know. 18 RQ MR. GARBUS: May I have a copy of 19 that DVD report that referred to those two 20 licenses? 21 MR. COOPER: We will take it under 22 advisement, although I note that the 23 witness wasn't certain that the 24 information came from such a report. 25 Q. Do you know the address of such INTERIM COURT REPORTING 130 1 Jacobsen 2 report? 3 A. I don't. 4 MR. COOPER: The publisher of the 5 report? 6 MR. GARBUS: Yes. 7 Q. Is this on the internet or -- 8 A. It's hard copy. 9 Q. Does the MPAA have a policy that 10 says it is piracy to make a home copy of a movie on 11 a video cassette? 12 MR. COOPER: Are you saying to 13 make the copy onto a video cassette 14 medium? 15 MR. HERNSTADT: From to. 16 MR. COOPER: From a video cassette 17 onto some other medium, regardless -- 18 MR. HERNSTADT: Onto a video 19 cassette. 20 MR. COOPER: To duplicate an 21 existing VHS? 22 MR. HERNSTADT: Yes. 23 A. Just to make sure I understand, you 24 are talking about -- 25 MR. GARBUS: Why don't I rephrase INTERIM COURT REPORTING 131 1 Jacobsen 2 it. 3 A. If one of my member companies' 4 authorized video cassettes, to put that in a VCR, 5 you defeat the macrovision or any other device that 6 is contained therein and you make another copy? 7 The answer is yes, I would consider that to be 8 piracy. 9 MR. COOPER: Read back the last 10 question and answer. 11 (Record read.) 12 BY MR. GARBUS: 13 Q. Let me see if I understand. If I 14 buy a product, a DVD, and I want to make up a 15 backup copy in one form or another in case I lose 16 the DVD that I bought, which I paid for, is it the 17 MPAA's policy that for me to do so would constitute 18 piracy? 19 MR. COOPER: Based on our prior 20 colloquy and the witness' prior 21 testimony, I can already tell you that he 22 would only know the answer to that based 23 on conversations with counsel. 24 Q. Is that true? You have no 25 independent view of that? INTERIM COURT REPORTING 132 1 Jacobsen 2 MR. COOPER: This is with respect 3 to DVDs. 4 A. That's correct. 5 MR. HERNSTADT: Off the record. 6 (Discussion off the record.) 7 BY MR. GARBUS: 8 Q. Do you know if there is a policy at 9 the MPAA as to whether or not if you buy a DVD and 10 make a backup copy of that DVD to protect you in 11 the event you lose the DVD, that it is the policy 12 of the MPAA that that is piracy? 13 A. By "piracy," I am assuming you are 14 asking me whether or not I would consider that to 15 be an unauthorized copy? 16 Q. Yes. 17 MR. COOPER: He is asking whether 18 there is such a policy that you are aware 19 of. 20 A. Every fact situation may or may not 21 be different. I don't think I can answer that 22 there is an overriding policy in the abstract as 23 opposed to present it in a particular fact 24 situation. 25 Q. In other words, the facts determine INTERIM COURT REPORTING 133 1 Jacobsen 2 whether or not the MPAA would consider it piracy to 3 make a backup copy of a DVD so that I can have a 4 copy in the event I lost the DVD or in the event I 5 wanted to play the DVD, the movie, on another 6 medium within my house. 7 MR. COOPER: That is a 8 mischaracterization of what the witness 9 said. I think what he said was there is 10 no policy specific to those facts. 11 MR. GARBUS: Let's go back to the 12 beginning. 13 BY MR. GARBUS: 14 Q. I think we had a different 15 understanding. As I understand your testimony, and 16 you tell me if I am wrong, that it is the 17 particular facts of a particular case -- and by 18 "case" I don't mean legal case. I mean instance. 19 -- which determines whether or not 20 making a backup copy of a DVD that you purchase is 21 piracy. Is that right? 22 MR. COOPER: Mr. Garbus, I have 23 been trying to make sure that we 24 distinguish between legal advice that the 25 witness is aware of and policies, as I INTERIM COURT REPORTING 134 1 Jacobsen 2 believe you have attempted to establish a 3 distinction between the two. 4 I think the witness has said 5 that there is no fact-specific policy. 6 What I don't want to do is have him 7 start to go down the road of talking 8 about legal opinions that he 9 understands from his discussions with 10 counsel. 11 Q. When you had discussions within the 12 MPAA group, putting counsel aside, prior to the 13 time this litigation was instituted, did anyone 14 raise the question about whether or not it's piracy 15 to make a backup copy of a DVD in the event you 16 lose one? 17 MR. COOPER: Other than 18 discussions with counsel. 19 Q. Other than discussions with counsel. 20 A. I don't believe I have ever had that 21 conversation in the DVD context, no. 22 Q. Did you have that conversation in 23 the VCR context? 24 MR. COOPER: Other than with 25 counsel. INTERIM COURT REPORTING 135 1 Jacobsen 2 A. Yes. 3 Q. What is the policy in the VCR 4 context? 5 MR. COOPER: Assuming there is 6 one. 7 A. Can I talk to my counsel for a 8 minute off the record? 9 MR. HERNSTADT: Is this about 10 privilege? 11 THE WITNESS: Yes. It might be. 12 MR. COOPER: It is to determine 13 whether there is a privilege. 14 (Witness consulted with Counsel.) 15 MR. GARBUS: Read back the last 16 question. 17 (Record read.) 18 A. I don't want to quibble about words, 19 but I have trouble with the term "policy." 20 Can I say that as a general rule it 21 is MPAA's position that the taping of an authorized 22 video cassette, put it into a VCR, chaining that 23 VCR into another VCR, putting a blank video 24 cassette and creating a copy is an unauthorized act 25 that we would include within the overall rubric of INTERIM COURT REPORTING 136 1 Jacobsen 2 piracy. 3 Q. And your answer, then, if I took out 4 the words "video cassette" and included the words 5 "DVD," your answer would be the same? 6 A. Generally. Obviously you couldn't 7 put it into a VCR, but if there were a way to make 8 the copy, the general rule would be, yes, we would 9 view that as falling under the rubric of piracy. 10 Q. So that if I had a video cassette 11 and let's assume in my house I had five video 12 cassette players and I wanted to make five copies 13 of the one that I bought for each of those video 14 players, the MPAA policy or position would be that 15 that constitutes piracy; is that right? 16 MR. COOPER: Assumes facts not in 17 evidence. 18 A. I mean the general rule, as I 19 stated, would be that the making of a copy would be 20 an unauthorized act. 21 Q. And if I were, let's say, a movie 22 critic who wanted to make a copy of the video 23 cassette so that I could watch it in my bedroom or 24 some place else, it is the MPAA's view that that 25 would be piracy? INTERIM COURT REPORTING 137 1 Jacobsen 2 MR. COOPER: Here is where I think 3 you cross the line from general rules to 4 specific application of general rules to 5 specific facts, in which I believe on 6 proper foundation the witness will tell 7 you his only knowledge comes from 8 discussions with counsel. 9 Q. If a university wants to make a copy 10 of a video cassette or a DVD for teaching purposes, 11 is it the MPAA's view that making that copy would 12 constitute piracy? 13 MR. COOPER: Calls for 14 attorney-client privilege information. 15 Q. Do you know if the MPAA has a 16 position or policy on whether or not a university 17 or a library making a second copy as a backup copy 18 would constitute piracy? 19 MR. COOPER: That's a "yes" or 20 "no" question, whether you know that the 21 MPAA has such a position or policy. 22 A. I can't answer it "yes" or "no," 23 because everything would be fact specific and it 24 would be something that is discussed with lawyers 25 when the facts are accumulated. INTERIM COURT REPORTING 138 1 Jacobsen 2 Q. So that if university A wanted to 3 make a copy and if university B wanted to make a 4 copy, the determination of what is or is not piracy 5 could be different in those two cases? 6 MR. COOPER: You are asking him 7 now to draw a legal conclusion based on a 8 limited set of facts and I submit an 9 insufficient set of facts to draw such a 10 conclusion indicates that this witness is 11 not here to do that. 12 Q. When we talk about policies or 13 positions, is there any place where MPAA or movie 14 studios had anything that looked like policies or 15 positions on any of these matters, other than in 16 the files of lawyers at Proskauer or Weil Gotshal, 17 making a distinction between lawyers that worked 18 for you or with you at the MPAA and lawyers who 19 work in these movie houses? 20 MR. COOPER: Do you understand the 21 question? 22 A. I don't understand the question. I 23 got lost. 24 Q. You got lost in the sophistication 25 of the question? INTERIM COURT REPORTING 139 1 Jacobsen 2 A. Yes. Actually, I did. Could we 3 read it back, please? 4 MR. GARBUS: Read it back. 5 (Record read.) 6 MR. GARBUS: Off the record. 7 (Discussion off the record.) 8 MR. COOPER: Why don't you answer 9 the question as to whether there are any 10 written policies you are aware of on the 11 subject. 12 A. And the subject would be the general 13 rule of copying from one to another? 14 Q. Yes. 15 A. Not that I am aware of. 16 Q. Does the MPAA -- I used the words 17 positions or policies and you may think I am 18 talking about a book that has policies and 19 positions, but I am going beyond that. 20 Are there letters or testimonies 21 before public entities like Congress or the 22 Copyright Office where the MPAA has stated a 23 position or a view we respect to any of the issues 24 we have been talking about? Namely, the making of 25 second copies either for the home, for library, or INTERIM COURT REPORTING 140 1 Jacobsen 2 for university. That you are aware of. 3 A. I am not aware of any specific 4 testimony. I would be surprised if it hadn't 5 occurred at some time. 6 Q. Have you ever read Mr. Valenti's 7 testimony before the Congress on the question of 8 the passage or creation of the DMCA? 9 A. I have not. 10 Q. Mr. Valenti is the head of the 11 organization? 12 A. Yes, he is. 13 Q. Do you accept that, when he says 14 that the MPAA has taken a position or has a policy 15 that it is true? 16 MR. COOPER: Are you asking him in 17 the legal sense or that he believes that 18 to be the case? 19 Q. Does Valenti speak for the MPAA? 20 MR. COOPER: It's the same 21 question. 22 MR. GARBUS: Right. 23 MR. COOPER: Mine to you. You are 24 asking him in the legal sense or that he 25 believes on his position that when he INTERIM COURT REPORTING 141 1 Jacobsen 2 speaks, he speaks for the -- 3 MR. GARBUS: Whatever he thinks. 4 A. My belief is that when Mr. Valenti 5 speaks, he speaks on behalf of the MPAA. 6 Q. How does the MPAA arrive at policies 7 or positions? In other words, what is the process? 8 MR. COOPER: Overbroad. 9 A. I'm sorry. I'm not exactly certain 10 what you mean. 11 Q. If the MPAA takes a policy or 12 position and Mr. Valenti articulates an opinion 13 before Congress, what is the internal process, if 14 there is one? Maybe it is ad hoc. 15 A. I don't know. I have not been 16 included in that process in the short time I have 17 had this position. 18 Q. So you have never been included, 19 since April 1st, in the process of making policies 20 or positions or cooperating in the making of 21 policies or positions at the MPAA; is that right? 22 A. No. You asked that were articulated 23 by Mr. Valenti. I have not been involved in any 24 situation where he has articulated a policy. 25 Q. Have you ever been involved in any INTERIM COURT REPORTING 142 1 Jacobsen 2 situation, since you have been employed by the 3 MPAA, where anybody has articulated a policy or 4 position with respect to deCSS? 5 A. We are talking specifically deCSS 6 now? 7 Q. Yes. 8 A. I think the development of any 9 policy discussions I have been in have been with 10 counsel. 11 Q. Prior to the time that the cease and 12 desist letters were sent out, did the MPAA 13 articulate a position that it was their view that 14 the use of deCSS constitutes piracy? 15 A. I'm sorry. Prior to the sending out 16 of the C & D? 17 Q. Yes. 18 A. Articulate to whom? 19 Q. To anyone. 20 A. Not that I am aware of. 21 Q. Prior to the time that the cease and 22 desist letters were sent out, did the MPAA ever 23 articulate any position or policy, to your 24 knowledge, on whether making copies of DVDs for 25 home, university, or library use constituted INTERIM COURT REPORTING 143 1 Jacobsen 2 piracy? 3 MR. COOPER: Assumes facts not in 4 evidence. When you say "articulate," you 5 mean express to some third party outside 6 of the member companies, the MPAA, and 7 their counsel? 8 MR. GARBUS: Yes. 9 A. I don't know the answer. 10 Q. Does the MPAA issue press releases? 11 A. Yes. 12 Q. Does the MPAA have a file of those 13 press releases? 14 A. I assume that we do. 15 MR. GARBUS: I would ask for the 16 production of that in so far as they are 17 relevant to deCSS and in so far as any of 18 them are after October 1st. 19 MR. COOPER: Whether or not 20 relevant? 21 MR. GARBUS: Whether or not 22 relevant. 23 Q. Does the MPAA issue policy 24 statements from outside the United States or does 25 everything come from inside the United States? INTERIM COURT REPORTING 144 1 Jacobsen 2 MR. COOPER: Read back the 3 question, please. 4 (Record read.) 5 A. I'm sorry. Again, definitionaly I 6 am having difficulty with what you mean by "policy 7 statement." 8 9 Confidential 10 11 12 13 A. It would depend upon the 14 circumstances of the statement. 15 Q. To your knowledge, has anyone 16 outside of the United States issued any statements 17 relevant to deCSS? 18 MR. COOPER: That is, any one 19 representing the MPAA? 20 MR. GARBUS: Yes. 21 A. Are you including in that, you mean 22 interviews and newspaper articles? 23 Q. Yes. 24 A. I don't know for a fact. I think it 25 is likely, but I don't know for a fact. INTERIM COURT REPORTING 145 1 Jacobsen 2 Q. Do you have files on that? 3 A. If in fact -- if it was during a 4 news article or during an interview for a news 5 article and if in fact we did obtain a copy of 6 that, it probably has been kept. 7 Q. That would be in Encino? 8 A. I believe so. 9 RQ MR. GARBUS: I would ask for a copy 10 of that. 11 Q. With respect to congressional 12 testimony, Mr. Valenti and others who have 13 testified before Congress or the Copyright Office 14 concerning the MCA, would you have copies of that 15 testimony? 16 A. Would I, in the context of being the 17 Motion Picture Association? I believe there would 18 be copies. 19 RQ MR. GARBUS: Would you produce that. 20 Would you also produce statements made or 21 exhibits given to the Copyright Office 22 relating to deCSS? Under advisement? 23 MR. COOPER: Yes. That's true for 24 all of your requests. 25 RQ MR. GARBUS: Would you also give us INTERIM COURT REPORTING 146 1 Jacobsen 2 any statements made by Mr. Valenti or 3 anybody at the MPAA before the Congress or 4 the Copyright Office concerning the MPAA, 5 as well as statements, if there are any, 6 directed to the issues I raised before? 7 Namely, whether or not you can make a home 8 copy of a DVD, whether a university can 9 make a home copy of a DVD, whether a 10 library can make a home copy of a DVD. 11 Will you, Mr. Cooper, in the 12 spirit of generosity, look at your 13 files and see if you can produce that? 14 MR. COOPER: I will certainly take 15 it under advisement, spiritedly and 16 generously. 17 RQ MR. GARBUS: With respect to the 18 questions before, with respect to whether 19 it is the MPAA's policy that it is policy 20 or position, that it is piracy to reverse 21 engineer CSS to make fair use of 22 copyrighted materials on a DVD; 3, play DVD 23 on a non-CSS equipped player, would you 24 give me, any public statements, 25 congressional testimony, or any other INTERIM COURT REPORTING 147 1 Jacobsen 2 public records relating to whether or not 3 the MPAA considers policy or position, that 4 to be piracy? 5 MR. COOPER: I will take it under 6 advisement. 7 BY MR. GARBUS: 8 Q. What was the name of your 9 predecessor at the job you took over on April 1st? 10 Confidential 11 Q. Where is he now? 12 A. He is currently employed by the 13 IDSA. 14 Q. Which is? 15 A. It is a trade association 16 representing the -- basically, the games industry. 17 Q. How long had he held your position? 18 A. Roughly two years. 19 Q. Is the position that you now have 20 similar to the position you had before except you 21 went from America to worldwide? 22 A. My previous position I ran the 23 United States program. 24 Q. Who now runs the American program? 25 Confidential INTERIM COURT REPORTING 148 1 Jacobsen 2 Q. Acting director. That may or may 3 not be a permanent position? 4 A. That's correct. 5 Q. Did you know the DVD CCA was going 6 to file a trade secret suit -- when I say "you," I 7 am now referring to the MPAA -- before the suit was 8 filed in California? 9 MR. COOPER: Other than through 10 discussions with counsel. 11 A. Any information I had originated 12 from discussions with counsel. 13 Q. Did you ever see the legal papers in 14 that proceeding? 15 A. I don't think so. 16 Q. Were you ever consulted by anybody 17 at the MPAA, other than counsel? To your 18 knowledge, was anybody at the MPAA ever consulted 19 by anybody at DVD CCA before the lawsuit was filed? 20 A. I may be mistaken. I thought there 21 were two parts to that question. Could you please 22 read it back to make sure I answer right. 23 (Record read.) 24 A. Any information I would have about 25 that would have come through counsel. INTERIM COURT REPORTING 149 1 Jacobsen 2 Q. In other words, it would not have 3 come from any of the people on your staff in 4 California, the place where the lawsuit was filed? 5 A. That's correct. 6 MR. COOPER: Other than the 7 lawyers in California. 8 THE WITNESS: That's right. 9 Q. Do you know why the decision was 10 made to file the lawsuit first in California by the 11 DVD CCA relating to DVD CSS and then a later 12 lawsuit to be filed in New York by the MPAA? 13 MR. COOPER: Assumes facts not in 14 evidence. Answer the question "yes" or 15 "no," please. 16 A. Any information I would have about 17 the filing of the lawsuit in New York I obtained 18 through conversations with counsel. Any 19 information that I have about the filing of the 20 lawsuit in California I obtained through 21 conversations with counsel. 22 Q. Is it fair to say that, to your 23 knowledge, after the filing of the DVD CCA lawsuit, 24 that there were many more website postings of deCSS 25 than there had been before? INTERIM COURT REPORTING 150 1 Jacobsen 2 A. I don't know the answer. 3 Q. Do you know whether or not the total 4 number of postings of deCSS before the filing of 5 the California lawsuit was more or less than 6 twenty-five? 7 A. I don't know for sure. 8 Q. Is there any information at the MPAA 9 which shows you, either because of downloaded 10 material or because of investigations, that you or 11 the studios made the number of sites at any 12 particular time or month or week from October 1st 13 to the present? 14 A. Were you asking if there is a list 15 that we maintained that indicates the sites? 16 Q. Either a list or any other kind of 17 documentation. Namely, that you had downloaded 18 such-and-such on October 1st or that you had 19 downloaded such-and-such on December 1st. Is there 20 any way that I can trace or you can trace the 21 pattern of postings and linkings from October, then 22 looking at December, then looking at January, and 23 then looking at now? 24 MR. COOPER: You are focusing on 25 the dates of posting? INTERIM COURT REPORTING 151 1 Jacobsen 2 MR. GARBUS: The dates that you 3 learned of them or the dates of postings 4 or whenever you learned them. 5 A. There is a list that we maintain. 6 It has not been maintained since -- I don't believe 7 it has been obtained since October 1st, however, so 8 it would be incomplete. 9 Q. So tell me about this list. 10 MR. COOPER: Let's take it a step 11 at a time. I want to make sure that we 12 don't get into the substance of the list 13 until there is a determination as to 14 whether it is subject to work product or 15 attorney-client privilege. 16 THE WITNESS: Okay. 17 MR. GARBUS: Off the record. 18 (Discussion off the record.) 19 MR. COOPER: Read back the pending 20 question. 21 (Record read.) 22 BY MR. GARBUS: 23 Q. What is it? Where is it? Exactly 24 what does the list contain and how was it compiled? 25 MR. COOPER: You can answer what INTERIM COURT REPORTING 152 1 Jacobsen 2 it is and where it is and if it's -- 3 let's start with those two. 4 A. It is a list of sites on the 5 internet which have been identified that were 6 either posting or linking the deCSS utility. 7 Q. Tell me, when was the list first put 8 together? 9 A. As I recall, it was commenced 10 sometime in January of this year. 11 Q. So in other words, if I understand 12 it, in January you said, let's find out -- when I 13 say "you," the MPAA. 14 -- let's find out how many sites 15 from October to now, January, have linked or posted 16 deCSS. So you look back two or three months? 17 A. I don't remember for sure, but I 18 think that may be incorrect. I think we may have 19 started with sites we located in January and worked 20 forward. I'm not certain. 21 Q. If you started in January and worked 22 forward, how do you know when that site went up, 23 whether it was October, November, December? You 24 just assumed that any site that you saw in January 25 went up in October, November, December? Is that INTERIM COURT REPORTING 153 1 Jacobsen 2 it? 3 A. No. 4 Q. Tell me. 5 A. I don't think any such assumption is 6 made about when the site went up. It is when we 7 discovered the site. The site could have been 8 up -- 9 Q. In January? 10 A. It could have been up -- it could 11 have been up any period of time. The question is 12 when did we, as MPAA, discover the fact that the 13 site existed. 14 Q. And you only discovered that in 15 January? 16 MR. GARBUS: Off the record. 17 (Discussion off the record.) 18 BY MR. GARBUS: 19 Q. So before you made a list in 20 January, you had already been aware that there were 21 sites that either linked or posted deCSS? 22 A. That's correct. 23 Q. And then you started to put the list 24 together in January? 25 A. That's my recollection, yes. INTERIM COURT REPORTING 154 1 Jacobsen 2 RQ MR. GARBUS: I would like all 3 documentation you have concerning the first 4 time you learned about these postings or 5 linkings in November and December. I would 6 like a copy of that list. 7 Q. Who told you to make that list? Was 8 that your own decision? 9 A. I'm sorry. What list? I did not 10 describe -- 11 MR. COOPER: Let's separate out 12 the demand for the document, which was 13 directed to me, and we will take it under 14 advisement and we will determine whether 15 it is subject to attorney-client 16 privilege and work product doctrine. 17 Now he is asking you a follow-up 18 question with respect to the creation 19 of the document and asking whether you 20 know who requested it be created in the 21 first instance. 22 THE WITNESS: But that's not what 23 I understood his question to be. The 24 question, as I understood it, dealt with 25 a list of sites that were found in INTERIM COURT REPORTING 155 1 Jacobsen 2 November and December. I don't know that 3 they are on a list. 4 BY MR. GARBUS: 5 Q. But you have some documentation in 6 November and December of having known of certain 7 sites? They may be on a list? They may be on a 8 piece of paper; right? 9 A. That's correct. 10 Q. And then they are made into a list, 11 more or less, in January? 12 A. I'm sorry, but that's not what I 13 testified to. At least I didn't intend to testify 14 that way, if I did. In January a list was 15 commenced. I don't know whether or not sites that 16 were located in November and December -- 17 Q. Are included? 18 A. -- were put on that list or whether 19 they started with the first site they discovered in 20 January or the day the list was created and worked 21 forward. 22 Q. Now, that January list, has it been 23 continually brought up-to-date? 24 A. Yes. 25 Q. On a daily basis? INTERIM COURT REPORTING 156 1 Jacobsen 2 A. On a weekly basis. 3 Q. Have you downloaded in hard copy the 4 results of those lists? 5 MR. COOPER: I don't understand 6 the question. 7 RQ MR. GARBUS: Will you give me a copy 8 of the disk, if there is one, that 9 indicates what you did with this list after 10 January and/or give me a copy of any papers 11 that reflect the continuation of that list 12 from the date it was first created until 13 the present day? 14 MR. COOPER: I will take it under 15 advisement. 16 BY MR. GARBUS: 17 18 Confidential 19 20 21 22 23 Q. Did you ever check the sites to see 24 whether or not those sites that said they posted 25 deCSS or linked to deCSS actually did? INTERIM COURT REPORTING 157 1 Jacobsen 2 A. Did I? 3 Q. Did you or did anyone at the MPAA? 4 A. Yes. People at the MPAA have. 5 Q. So the list, then, is, if you will, 6 a screened list in that if somebody says I'm 7 linking to a deCSS site or imposing a deCSS site 8 and you determine they weren't, then that 9 particular site is not on the list? 10 A. That would be correct. 11 Q. Once you found a particular site 12 that either linked or posted, did you download hard 13 copy, papers about what was on the site? 14 A. I don't know the answer. 15 RQ MR. GARBUS: Mr. Cooper, in the 16 spirit of geniality, will you find out the 17 answer immediately and give us any paper 18 copies that there are immediately? 19 MR. COOPER: I will take that, as 20 well, under advisement. 21 22 23 Confidential 24 25 INTERIM COURT REPORTING 158 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 159 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 160 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 161 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 162 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 163 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 164 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 165 1 Jacobsen 2 3 4 Confidential 5 6 7 8 9 10 Q. You do know that some of the 11 plaintiffs in the case, for example, Disney, have 12 their own search engines? Do you know that? 13 A. I do know that they do some of their 14 own searching. I don't know if they have their own 15 search engine. 16 Q. Have you ever heard of something 17 called Infoseek? 18 A. No. 19 Q. Have you ever heard of something 20 called Go? 21 A. Yes. 22 Q. What is Go? 23 A. I believe that it is some internet 24 provider that is, I believe, is now owned by the 25 Disney Company. I don't know exactly what Go does. INTERIM COURT REPORTING 166 1 Jacobsen 2 Q. Have you ever gone to any of the 3 Disney search engines and seen whether or not they 4 link to deCSS? 5 MR. COOPER: Assumes facts not in 6 evidence. Calls for speculation. 7 A. I have not. 8 Q. Do you know whether any 9 Disney-linked sites post deCSS? 10 A. I don't. 11 Q. Do you know how many people, if any, 12 learned about deCSS through Disney-linked sites? 13 A. I don't. 14 Q. Would your answer be the same with 15 respect to the other movie companies, assuming 16 those that have search engines? 17 MR. COOPER: It assumes facts not 18 in evidence. I don't know if any of them 19 do. Do you? 20 A. You are talking about only the ones 21 that I am here to represent? 22 Q. Yes. 23 A. So Time Warner would be excluded? 24 Q. Yes. 25 A. My answer would be the same. I INTERIM COURT REPORTING 167 1 Jacobsen 2 don't know. 3 Q. At the time that cease and desist 4 letters were sent, whenever they started to send 5 the cease and desist letters, were any cease and 6 desist letters sent by Disney to Disney? 7 A. I don't know that answer. 8 Q. Do you know if any cease and desist 9 letters were sent to any plaintiffs in this case? 10 A. I don't know the answer to that. 11 Q. Do you know if there are any 12 responses to any of the plaintiffs in this case to 13 any cease and desist letters that may have been 14 sent by any plaintiffs? 15 A. I think I lost it. You are talking 16 about do I know of any responses that one of the 17 plaintiffs may have made to another plaintiff who 18 sent -- 19 MR. COOPER: His question was just 20 taken off of the last one. He just asked 21 you whether you knew of any cease and 22 desist letters sent on behalf of the 23 plaintiffs to any of the plaintiffs in 24 connection with deCSS and now he is 25 asking you whether there had been any INTERIM COURT REPORTING 168 1 Jacobsen 2 responses to any such letters that you 3 were aware of. 4 THE WITNESS: I don't know. 5 Q. Do you understand that Mr. Geckner 6 has previously stated that it was the policy of the 7 MPAA that there were different rules and 8 regulations with respect to VCRs and DVDs in so far 9 as fair use was involved? Do you know that one way 10 or the other? 11 MR. COOPER: Assumes facts not in 12 evidence. 13 A. I do not know. 14 Q. Do you know whether or not the MPAA 15 has ever said that the fair use rules that apply to 16 VCRs also apply to DVDs? 17 A. I do not. 18 Q. Do you know what the MPAA has said 19 publicly about the fair use rules for libraries, 20 universities, and academics? 21 A. I have seen a brochure that is put 22 out. Actually, that is not on fair use. No, I 23 don't. 24 Q. What is this brochure? 25 A. It was on public performance. I was INTERIM COURT REPORTING 169 1 Jacobsen 2 thinking of the wrong question. Sorry. 3 Q. Do you know who the counsel for DVD 4 CCA is? Weil Gotshal & Manges? 5 A. I know that that law firm represents 6 them, yes. 7 Q. Have they ever been involved in any 8 meetings that you have ever participated in with 9 the MPAA people? 10 A. Yes. 11 Q. Where were these meetings? 12 A. There was one in Encino, California. 13 Q. Who was at the meeting? 14 A. Should I answer that? 15 MR. COOPER: You can tell him who 16 was present. 17 18 19 Confidential 20 21 22 23 24 25 INTERIM COURT REPORTING 170 1 Jacobsen 2 Confidential 3 Q. The good looking gentleman at the 4 end of the table. 5 A. I can't remember the attorneys' 6 name, but one of the attorneys from the Weil 7 Gotshal law firm and some representatives from MEI. 8 MR. LITVACK: I will stipulate to 9 that. 10 Q. MEI? What is that? 11 A. It's -- I always mispronounce 12 this -- Matsushita and I don't know what the "EI" 13 stands for, but it is basically the Matsushita 14 company. 15 Q. Do you know which gentlemen from 16 Matsushita were there? 17 A. I don't recall their names. 18 Q. Do you know what role they played 19 with respect to CSS? 20 A. What role these gentlemen played 21 with respect to CSS? 22 Q. What role Matsushita played with 23 respect to CSS. 24 MR. COOPER: I will let you get it 25 from the witness. I note that he is not INTERIM COURT REPORTING 171 1 Jacobsen 2 here to testify on that subject. Another 3 witness is. 4 A. Not specifically. 5 Q. Do you know that they were one of 6 the companies that helped develop CSS? 7 A. I believe that is true. 8 Q. Do you know who the other companies 9 were? 10 A. I don't. 11 Q. Do you know that the DVD CCA is 12 composed of the companies that developed CSS? 13 A. I did not know that. 14 Q. How many Matsushita representatives 15 were there? 16 A. I think there may have been five. 17 Q. What were their names? 18 A. I don't remember their names. 19 Q. Were any of them officers of the DVD 20 CCA? 21 A. I don't know the answer to that 22 question. 23 24 Confidential 25 INTERIM COURT REPORTING 172 1 Jacobsen 2 3 4 Confidential 5 6 7 8 9 10 A. Yes. 11 Q. And the gentleman who you called 12 senior vice president of technology -- 13 A. Is not a lawyer. 14 Q. What is his area? 15 A. Technology. 16 Q. What is his background? 17 A. I don't know. I am not familiar 18 with his background. 19 Q. When did this meeting take place? 20 A. I don't remember the dates. 21 Q. Was this before or after you have 22 your new job? 23 A. Before. 24 Q. Was it before the beginning of the 25 year? INTERIM COURT REPORTING 173 1 Jacobsen 2 A. I think it was, but I really don't 3 remember for sure. 4 Q. Was it after deCSS was published? 5 A. Yes. I believe it was. 6 Q. Was this a meeting specifically 7 addressed to the question of deCSS or were there 8 other issues discussed, as well? 9 A. I don't remember. 10 Q. "I don't remember" to what? 11 A. What the topics were that were 12 discussed and if there were any topics in addition 13 to deCSS. 14 Q. So it is your memory that it may 15 have been solely deCSS? 16 MR. COOPER: I will let you answer 17 just that much of the question and 18 without any argument, Counsel, as long as 19 you agree that that is not a waiver to 20 the extent that there is any 21 attorney-client privilege -- 22 MR. GARBUS: Nothing in that 23 question is waived. 24 A. I don't recall if there were any 25 other topics. INTERIM COURT REPORTING 174 1 Jacobsen 2 Q. To your knowledge, were any of the 3 Matsushita people involved with DVD CCA? 4 MR. COOPER: Asked and answered. 5 A. I don't know. 6 Q. Was there anybody there designated 7 as a DVD CCA employee? 8 MR. COOPER: Asked and answered. 9 A. I don't know. 10 Q. What time did the meeting start? 11 A. I don't recall. 12 Q. Was a memo made by you of that 13 meeting? 14 A. No. 15 Q. To your knowledge, was a memo made 16 by anyone at MPAA of that meeting? 17 A. Not to my knowledge. 18 Q. Is this before the California 19 lawsuit was started by the DVD CCA? 20 A. I don't remember. 21 Q. Was it after a judge's decision in 22 the DVD CCA lawsuit? 23 A. I don't remember. 24 Q. Was the meeting more or less than 25 two hours? INTERIM COURT REPORTING 175 1 Jacobsen 2 A. I don't remember for sure. It was 3 fairly lengthy, but I don't remember. 4 Q. Four hours? 5 A. I don't think it was four hours. 6 Q. Three hours? 7 A. Possibly. 8 MR. GARBUS: Off the record. 9 (Discussion off the record.) 10 BY MR. GARBUS: 11 Q. Can you tell me what was discussed 12 at that meeting? 13 MR. COOPER: At this point, I want 14 to confer with the witness to determine 15 whether we have a privilege to assert. 16 MR. GARBUS: Let me ask the 17 questions. 18 Q. Who called you to the meeting? 19 Confidential 20 Q. Did he tell you at whose request the 21 meeting was happening? 22 A. I don't remember. 23 Q. Did you know walking into the room 24 that you were going to discuss deCSS? 25 A. I don't remember. Possibly, but I INTERIM COURT REPORTING 176 1 Jacobsen 2 don't remember. 3 Q. Do you generally walk into meetings 4 when you don't know what is going to happen in the 5 room? 6 A. Occasionally. 7 Q. In this particular case, your best 8 memory is that you didn't know what was going to 9 happen? 10 A. My best memory is I don't remember 11 whether I knew or not. 12 Q. Did you ask Mr. Hirsch before you 13 went into the meeting? 14 A. I don't remember. 15 Q. Where physically did the meeting 16 take place in your building? 17 A. On the first floor, in a conference 18 room. 19 Q. How big was the conference room? 20 A. Roughly the same size as this 21 conference room. 22 Q. The table is about 35 feet, with 23 about seats for 15 people? 24 A. Roughly. 25 Q. Were all the sites occupied? INTERIM COURT REPORTING 177 1 Jacobsen 2 A. I don't think so. 3 Q. How did your senior vice president 4 in charge of technical areas get to the meeting? 5 MR. COOPER: Calls for 6 speculation, lacks foundation. 7 Q. If you know. Did you invite him to 8 the meeting? 9 A. I did not invite him. 10 Q. You didn't invite anybody to the 11 meeting? 12 A. That's correct. 13 Q. Did you at any time ask Mr. Litvack 14 to come to the meeting? 15 A. No. 16 Q. Did you call any Proskauer people to 17 come to the meeting? 18 A. No. 19 Q. Is it your understanding that Weil 20 Gotshal called the meeting? 21 A. I don't have an understanding of how 22 the meeting was called. 23 Confidential 24 25 MR. COOPER: Asked and answered. INTERIM COURT REPORTING 178 1 Jacobsen 2 A. I do not know. 3 Q. How about the gentleman who is the 4 senior vice president? 5 MR. COOPER: If you are asking 6 about MPAA people, you already asked him 7 whether anybody at the MPAA, to his 8 knowledge, made a memorandum and he 9 answered no. That would include those 10 people, as well. 11 Q. Did you ever see any memorandum of 12 that meeting? 13 A. I did not. 14 Q. Do you know if any of the Matsushita 15 people made a memorandum of that meeting? 16 A. I do not know. 17 Q. Did you see anybody making notes at 18 the meeting while you were there? 19 A. I don't remember. 20 Q. Other than that meeting, have you 21 ever had any other meetings with anyone at Weil 22 Gotshal concerning deCSS or DVDs? 23 A. Are you talking about face-to-face 24 meetings? 25 Q. Well, let's start with first INTERIM COURT REPORTING 179 1 Jacobsen 2 face-to-face and then we will get to telephone 3 calls. 4 A. I don't remember having any other 5 face-to-face meetings with Weil Gotshal people. 6 Q. Any other face-to-face meetings with 7 any of these people at Matsushita? 8 A. No. 9 Q. Any face-to-face meetings with 10 anybody else at DVD CCA? 11 A. No. 12 MR. COOPER: It assumes facts not 13 in evidence since he hasn't been able to 14 tell you whether these people were 15 representatives of DVD CCA. 16 Q. Did you have telephone conversations 17 with anyone at Weil Gotshal? 18 A. I have not, but I have been present 19 with counsel when telephone -- 20 Q. Which counsel? 21 A. Mark Litvack. 22 -- when telephone conversations were 23 had. 24 Q. How many such conversations? 25 A. I remember one. I don't recall if INTERIM COURT REPORTING 180 1 Jacobsen 2 there were more than that or not. 3 Q. You never had any conversations, 4 yourself, directly with Weil Gotshal? 5 A. That's correct. 6 Q. So the only conversations you know 7 are the conversations that Litvack had with Weil 8 Gotshal? 9 A. That's correct. 10 Q. Do you know how many such 11 conversations he had with Weil Gotshal? 12 A. No, I don't. 13 Q. Do you know whether he ever saw any 14 of the DVD CCA papers before they were filed? 15 MR. COOPER: You are talking about 16 the court papers now? 17 MR. GARBUS: Yes. 18 A. I don't know. 19 Q. Do you know whether he had any 20 discussions with Weil Gotshal concerning any aspect 21 of the DVD CCA case? 22 MR. COOPER: Other than what he 23 just testified to. 24 A. I don't know. 25 Q. Do you know if he was in court when INTERIM COURT REPORTING 181 1 Jacobsen 2 Mr. Barsky was in court at any of the DVD CCA 3 proceedings? 4 A. I don't think Mr. Litvack was in 5 court. I don't know if Mr. Barsky was. 6 Q. Do you know if any MPAA lawyer was 7 in court? 8 A. Yes. 9 Q. Who? 10 A. Lori Donahue. 11 Q. When was she in court? 12 A. If I remember correctly, she was in 13 court the day arguments were presented for -- I 14 believe they asked for a temporary restraining 15 order. I'm not sure, but there were arguments 16 about a motion that had been made and she was there 17 to listen to the arguments. 18 Q. Did you see the transcript of that 19 argument? 20 A. I did not. 21 Q. Do you know whether she identified 22 herself as being present in the courtroom? 23 A. I don't know. 24 Q. Do you know whether she was 25 designated in the transcript as a lawyer who was INTERIM COURT REPORTING 182 1 Jacobsen 2 present in the courtroom? 3 A. I don't know. 4 Q. Was there any discussion that you 5 had with her at any time about whether or not she 6 should be in the courtroom? 7 A. With me? 8 Q. Yes. 9 A. No. 10 Q. Do you know how she got into the 11 courtroom? Who told her to go there? 12 A. I don't know. 13 Q. Do you know if she was told 14 specifically not to identify herself to the court? 15 A. I'm sorry? 16 MR. COOPER: One thing at a time. 17 If you believe we have already intruded 18 into the privilege, why don't we take a 19 break. 20 MR. LITVACK: Let's take a break. 21 (Counsel consulted with witness.) 22 DI MR. COOPER: Just so we are clear, 23 to the extent that the witness is aware of 24 any specific communications, and I think he 25 is about to tell you he is not aware of any INTERIM COURT REPORTING 183 1 Jacobsen 2 specific communications -- 3 MR. GARBUS: Between who? 4 MR. COOPER: Between him and 5 Ms. Donahue who is one of the attorneys 6 for the MPAA. 7 To the extent that he is aware 8 of the substance of those 9 communications, I admonish him not to 10 reveal the substance of those 11 communications. 12 BY MR. GARBUS: 13 Q. Do you know of any lawyers from Weil 14 Gotshal, if they were present at the court 15 appearance here when an injunction was sought by 16 the MPAA? 17 A. I don't know if they were or were 18 not. 19 Q. Do you know if any lawyers from the 20 DVD CCA were present? 21 A. I have no knowledge. 22 Q. To your knowledge, have the lawyers 23 from the MPA, the DVD CCA, including in-house 24 lawyers and their outside counsel, been exchanging 25 documents concerning these two cases? INTERIM COURT REPORTING 184 1 Jacobsen 2 DI MR. COOPER: If you know the answer 3 to that question from an unprivileged 4 source, then you can answer. Otherwise, I 5 want you to state that the only information 6 that you have on that is from a privileged 7 source. 8 A. I have no knowledge. 9 Q. Were you ever told of the result of 10 what the DVD CCA obtained in the California court? 11 Namely, the granting of an injunction? 12 A. I'm sorry. Did I ever -- 13 MR. COOPER: He hasn't finished, I 14 don't think. 15 MR. GARBUS: I did. 16 A. Were you asking me if I ever found 17 out what the result was? 18 Q. Yes. 19 A. Yes. 20 Q. From who? 21 A. I think from either Lori or Mark 22 Litvack. Lori Donahue or Mark Litvack. 23 Q. Do you know if they told you within 24 the hour of the result? 25 DI MR. COOPER: Having gone farther INTERIM COURT REPORTING 185 1 Jacobsen 2 than I think is appropriate already with 3 respect to communications with counsel, I 4 don't want to give details of those 5 communications. 6 Q. Do you know if it was an hour after 7 the court decision? 8 MR. COOPER: You are asking 9 specifically about a substantive 10 communication with counsel? 11 MR. GARBUS: Just the timing of 12 it, yes. 13 Q. In other words, did you learn within 14 an hour after the California's court rendering of 15 the injunction that that injunction had been 16 granted? 17 MR. COOPER: This is well beyond 18 the purview of the witness' designation 19 as a witness for the parties in this 20 action or the MPAA. I'm not sure what 21 purpose can be served by it. 22 Q. Do you know if the MPAA originally 23 got its information about the websites from the DVD 24 CCA? 25 MR. COOPER: You are talking about INTERIM COURT REPORTING 186 1 Jacobsen 2 the posters and linkers that had been 3 referred to earlier this afternoon in 4 your colloquy with the witness? 5 MR. GARBUS: Yes. 6 A. About posters and linkers who are 7 posting and linking DVD CSS? 8 Q. Yes. 9 A. I don't know. 10 11 12 Confidential 13 14 15 MR. COOPER: We are talking 16 specifically November-December? 17 MR. GARBUS: Yes. 18 MR. COOPER: If you don't know, 19 that's the easy answer. 20 A. I don't know. 21 MR. GARBUS: That's a little 22 leading. 23 MR. COOPER: I didn't mean it that 24 way. Please, let's not let -- the 25 witness was waiting for me to state an INTERIM COURT REPORTING 187 1 Jacobsen 2 objection on privilege. That's 3 meaningless if he doesn't know the 4 answer, in any case. 5 6 Confidential 7 8 9 A. You are asking me if I know of 10 anybody -- 11 Q. At your place to anybody at their 12 place. 13 A. To DVD CCA? 14 Q. Yes. 15 A. I don't know of any specific 16 communications. 17 RQ MR. GARBUS: Would you give me any 18 documents, Mr. Cooper, that refer to any 19 communications between DVD CCA and MPAA 20 from October 1st to the present that are 21 not privileged and if you claim the 22 privilege, just let me know and log the 23 existence of those documents. 24 I am referring to conversations 25 concerning DVDs, DMCA, deCSS and CSS. INTERIM COURT REPORTING 188 1 Jacobsen 2 MR. COOPER: I will take it under 3 advisement. 4 Q. Sir, do you know what CSS-auth is? 5 A. I do not. 6 Q. Have you ever heard or seen that? 7 A. I believe I have heard of CSS-auth, 8 but I don't recall in what context. 9 Q. Do you know what it is? 10 A. No. 11 Q. How about CSS-cat? 12 A. I don't think I ever heard of that. 13 Q. Do you know what an ATI Capture Card 14 is? 15 A. I don't. 16 Q. Do you know what a DOD's Ripper is? 17 A. No. 18 Q. After the cease and desist letters 19 went out, I think you have indicated that there 20 were responses to some of them and that some of the 21 sites took down the posting of the linking. Do you 22 have records with respect to which sites took down 23 either linking or posting? 24 DI MR. COOPER: Without going into any 25 more of the substance with respect to any INTERIM COURT REPORTING 189 1 Jacobsen 2 such documents at least until we determine 3 whether they are entitled to some 4 privilege, you can answer that question 5 "yes" or "no." 6 A. Yes. 7 MR. GARBUS: What was the 8 question? 9 (Record read.) 10 RQ MR. GARBUS: Will you give them to 11 me, Mr. Cooper? 12 MR. COOPER: I will take it under 13 advisement. 14 BY MR. GARBUS: 15 Q. After the first meeting or maybe the 16 only meeting with the Matsushita people, did you 17 ever speak to anyone again from Matsushita 18 concerning deCSS or DVDs? By "you," I mean you, 19 Motion Picture Association or any of the 20 plaintiffs. 21 MR. COOPER: Whether anybody at 22 the member companies or the MPAA had any 23 communications of which the witness is 24 aware of with any representative of 25 Matsushita after the meeting he referred INTERIM COURT REPORTING 190 1 Jacobsen 2 to? 3 MR. GARBUS: Yes. 4 MR. COOPER: On any topic? 5 MR. GARBUS: Relating to deCSS, 6 DVDs or the DMCA or the DVD CCA. 7 MR. COOPER: That is a "yes" or 8 "no" question. 9 A. I'm sorry. DeCSS, DVDs? DVDs 10 generally? 11 Q. Yes. 12 A. I would say yes. 13 Q. Tell me about that. 14 A. I don't have any specific knowledge, 15 but there is a Copyright Protection Technology 16 Working Group and it's my understanding that 17 Matsushita would be a member of that group. I know 18 that MPAA attends and I know that representatives 19 and member companies attend. 20 I believe they meet on a very set 21 schedule of at least once a month. So, I am 22 assuming that there have been meetings with those 23 people that were present and they probably would 24 have discussed in a huge general forum DVD and DVD 25 protection. INTERIM COURT REPORTING 191 1 Jacobsen 2 Q. As a matter of fact, there was a 3 meeting on 4/2000 by this group, which included 4 members of Weil Gotshal, Proskauer Rose, DVD CCA, 5 and the MPAA; isn't that right? 6 A. I am not familiar with the meeting. 7 Q. Do you know that there is an 8 attendance record kept of those meetings? 9 A. I don't. 10 Q. Have you ever been to one of those 11 meetings? 12 A. No. 13 Q. Tell me something about what that 14 working group is. 15 A. My understanding of the working 16 group, recognizing the fact that I am not involved 17 in it, my understanding is that it is a working 18 group to try to develop technologies which can be 19 agreed upon by the content providers and the 20 manufacturers of hardware equipment to protect 21 intellectual property. 22 Q. Do you know how long the meetings 23 take place each month? 24 A. I don't. 25 Q. Do you know where they take place? INTERIM COURT REPORTING 192 1 Jacobsen 2 A. I know some of them have taken 3 place -- I think they take place in Southern 4 California. 5 Q. When you say Southern California, 6 are we talking about Los Angeles? 7 A. The Los Angeles area, that's 8 correct. 9 Q. Do you know who sits on the board of 10 this group or pulls this group together? 11 MR. COOPER: This is plainly 12 outside of this witness' knowledge and it 13 is outside of the area for which he was 14 designated as a witness for the parties 15 in the MPAA, excluding Warner Brothers. 16 I am happy to have you establish 17 a foundation for his lack of knowledge 18 if that is really where we are going, 19 but you are getting into a level of 20 detail he plainly can't answer. 21 Q. Do you know which members of the 22 MPAA representatives attended these meetings? 23 A. I believe Brad Hunt attends and I 24 know Fritz Attaway has attended. I don't know if 25 he still attends or not. INTERIM COURT REPORTING 193 1 Jacobsen 2 Q. Who is Brad Hunt? 3 A. Brad Hunt is based in Encino. He is 4 senior vice president and chief technology of MPAA. 5 Q. Is this meeting an all-day meeting? 6 MR. COOPER: Talking about the 7 regular meeting or the February 4th 8 meeting? 9 MR. GARBUS: February 4th meeting. 10 MR. COOPER: He doesn't have any 11 knowledge about that. 12 MR. GARBUS: The regular meetings. 13 A. If you were referring to the 14 February 4th meeting before, I don't know who 15 attended. 16 Q. How long do these meetings take 17 place? Is it a day-long meeting? A lunch? 18 A. I don't know. 19 Q. Do you know if records are kept of 20 those meetings or minutes? 21 A. I do not know. 22 Q. Have you ever seen any minutes? 23 A. No. 24 Q. Do you know who is the head of this 25 particular group? INTERIM COURT REPORTING 194 1 Jacobsen 2 A. I don't. 3 Q. Are Brad and Fritz permanent members 4 of the group or does the MPAA rotate the people 5 that they send to these groups? 6 MR. COOPER: He is not the right 7 person to answer these questions. 8 A. I don't know. 9 Q. Who would know the answer? 10 11 Confidential 12 13 14 15 16 RQ MR. GARBUS: I ask for all 17 correspondence between the MPAA and the DVD 18 CCA, with each other and with Matsushita, 19 concerning deCSS, CSS, DMCA, particularly 20 after October 1st to date. 21 I would also request copies of 22 minutes, if any, or any other documents 23 relating to the copyright working groups' 24 discussion of deCSS, DVDs, DMCA, or any 25 other matter relevant to this lawsuit. INTERIM COURT REPORTING 195 1 Jacobsen 2 It is my belief that privileges that 3 have been asserted here were all 4 substantially waived by the conversations 5 that took place at these meetings. So, I 6 would like to see any documentation you 7 have concerning what was said at these 8 meetings, to the extent that the MPAA is a 9 member of those meetings. 10 I would like to know each and every 11 person who attended from October 1st on. I 12 would like to see any records that the MPAA 13 has of any of those meetings, if there were 14 any memoranda made by anyone, since I do 15 believe the privilege was waived. I will 16 get back to that further, at another time. 17 MR. GARBUS: 18 RL Q. Now, at this meeting at your offices 19 with the Matsushita people, Weil Gotshal and 20 yourselves, tell me what was said. 21 DI MR. COOPER: I am going to take 22 under advisement whether the witness is 23 entitled to testify about the substance of 24 that meeting. My understanding is that the 25 sole subject of the meeting may have been INTERIM COURT REPORTING 196 1 Jacobsen 2 matters as to which the parties are 3 entitled to a joint privilege and for that 4 reason, at least at this point in time, I 5 need to take under advisement whether that 6 privilege is going to be asserted. 7 BY MR. GARBUS: 8 Q. Did Matsushita have any of their own 9 lawyers there? Do you know? 10 A. My recollection is several of the 11 attendees were lawyers, yes. 12 Q. So Matsushita had its lawyers? 13 A. Yes. 14 Q. Do you know whether or not a joint 15 document was signed -- 16 MR. GARBUS: Off the record. 17 (Recess taken.) 18 BY MR. GARBUS: 19 Q. Do you know whether a joint document 20 was signed by the lawyers concerning the 21 confidentiality of that meeting or a joint defense 22 agreement, or any other document which was intended 23 to insulate the meeting and keep it within the 24 attorney-client privilege? 25 MR. COOPER: And that meeting is INTERIM COURT REPORTING 197 1 Jacobsen 2 the meeting between representatives of 3 the MPAA, Matsushita, Weil Gotshal, and 4 others that he has described in his 5 testimony? 6 MR. GARBUS: Yes. 7 MR. COOPER: A joint document. 8 Are you aware of such a document? 9 A. I am not aware of any such document. 10 MR. GARBUS: Please mark Exhibit 11 14. This is the attendance list at the 12 February 2000 Copy Protection Technical 13 Working Group meeting, as I understand 14 it. 15 (Defendants' Exhibit 14, attendance 16 list at the February 2000 Copy Protection 17 Technical Working Group meeting, marked for 18 identification, as of this date.) 19 BY MR. GARBUS: 20 Q. I show it to you and I ask you 21 whether or not it refreshes your recollection as to 22 the names of any of the Matsushita people who were 23 present at the meeting that you had in December at 24 your offices. 25 MR. COOPER: First of all, let the INTERIM COURT REPORTING 198 1 Jacobsen 2 witness have an opportunity to look at 3 this two-and-a-half-page document that 4 has been marked Exhibit 14 and secondly, 5 I don't recall the witness testifying to 6 the meeting being in December. I thought 7 I remembered him not -- the meeting you 8 were referring to, the oral face-to-face 9 meeting to which the witness has 10 testified. 11 I believe he was unable to fix 12 it in time and I believe your question 13 fixed it in time in December. I may be 14 in error, but that's my best 15 recollection. 16 BY MR. GARBUS: 17 Q. My understanding is that you said it 18 was in December. 19 A. I said I didn't remember. 20 Q. But it was sometime prior to 21 January 1st and sometime after deCSS was first 22 released. So, it would be November or December or 23 maybe the end of October? 24 A. That would probably be correct. 25 MR. COOPER: He has drawn your INTERIM COURT REPORTING 199 1 Jacobsen 2 attention to, on this Exhibit 14, the 3 names of a number of people who are 4 listed as representatives of Matsushita 5 Electric and he is asking whether seeing 6 that name on this list refreshes your 7 recollection as to whether they were 8 among the people who attended the meeting 9 that you testified to. 10 THE WITNESS: It does not. None 11 of the names refresh my recollection. 12 Q. Now let me address your attention to 13 the alleged lawyer from Weil Gotshal & Manges -- he 14 is not an alleged lawyer. He was a lawyer who was 15 allegedly at the meeting. 16 -- and see if that refreshes your 17 recollection as to whether he was the lawyer at 18 your meeting. I am having trouble finding it. 19 Withdraw the question. I am not finding it. 20 Do you know John Baumgarten from 21 Proskauer Rose? 22 A. I know -- I have never met 23 Mr. Baumgarten, but I do know generally that he 24 works for Proskauer Rose as a lawyer. 25 Q. And you know he made a court INTERIM COURT REPORTING 200 1 Jacobsen 2 appearance in this case? 3 A. I don't know. He made a court 4 appearance. I know that he has been part of the 5 defense team in this case. 6 MR. COOPER: Prosecution. 7 THE WITNESS: I'm sorry. 8 Prosecution. 9 MR. GARBUS: Off the record. 10 (Discussion off the record.) 11 BY MR. GARBUS: 12 Q. Do you know whether or not at the 13 meeting where you identify the people as coming 14 from Matsushita, any of them came from Toshiba, as 15 well? 16 MR. COOPER: You are asking 17 whether any of the people that the 18 witness understood were from Matsushita 19 also represented Toshiba at the same 20 meeting? 21 MR. GARBUS: Yes. 22 A. To my knowledge, they were all from 23 Matsushita. 24 Q. You do know that Toshiba is also one 25 of the companies that was involved in the creation INTERIM COURT REPORTING 201 1 Jacobsen 2 of CSS; is that right? 3 A. I did not know that. 4 Q. Do you know that they are one of the 5 companies that helped form DVD CCA? 6 A. Do not know that. 7 MR. COOPER: You have already 8 asked those precise questions. I think 9 he already testified that he doesn't know 10 and he is not designated to testify to 11 those issues. 12 Q. Do you, at any time -- when I say 13 "you," I mean Motion Picture Association -- speak 14 to any representatives of Toshiba, Matsushita, or 15 any of the companies that helped form DVD CCA after 16 January 1st? 17 MR. COOPER: That is also outside 18 of the purview of his testimony. 19 A. Can I answer? 20 MR. COOPER: To your knowledge. 21 A. Not as far as I know. 22 Q. Do you have any records which would 23 Confidential 24 speak to any Toshiba, Matsushita people? 25 MR. COOPER: To the extent that it INTERIM COURT REPORTING 202 1 Jacobsen 2 relates to -- 3 MR. GARBUS: -- deCSS, DVD, DMCA. 4 MR. COOPER: The only meaningful 5 response you are going to get from this 6 witness on that topic would be within the 7 areas for which he is designated, which 8 would include piracy and efforts to stop 9 the proliferation of deCSS. 10 My guess is you will find from 11 other witnesses being provided on other 12 topics that you may get a different 13 answer. 14 MR. GARBUS: Thank you. 15 Q. Do you know what a Windows Ripper 16 is? 17 A. No. 18 Q. Do you know what a Power Ripper is? 19 A. I don't. 20 Q. Do you know what DAT tapes are? 21 A. Generally. 22 Q. What are they? 23 A. It's a digital audio tape, I 24 believe. 25 Q. Do you know what the term "anonymous INTERIM COURT REPORTING 203 1 Jacobsen 2 source" means? 3 MR. COOPER: In the abstract? 4 MR. GARBUS: No. With reference 5 to the deCSS program. 6 A. I have never heard the term. 7 MR. GARBUS: Let's take a break 8 and we will start tomorrow promptly at 9 9:30 a.m. 10 (Time noted: 4:10 p.m.) 11 12 13 ______________________________________ 14 KENNETH A. JACOBSEN 15 16 17 Subscribed and sworn to before me 18 this____ day of___________, 2000. 19 20 __________________________________ 21 NOTARY PUBLIC 22 23 24 25 INTERIM COURT REPORTING 204 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 KENNETH A. JACOBSEN, 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 18th day of May, 2000. 21 22 _____________________________ 23 ELIZABETH SANTAMARIA 24 25 INTERIM COURT REPORTING 205 1 2 ------------------ I N D E X ------------------ 3 WITNESS EXAMINATION BY PAGE 4 KENNETH A. JACOBSEN MR. GARBUS 4 5 6 ----------- INFORMATION REQUESTS -------------- 7 DIRECTIONS: 24, 71, 75, 79, 119, 122, 182, 184, 8 188, 195 9 RULINGS: 71, 75, 78, 79, 121, 195 10 REQUESTS: 11, 13, 35, 57, 62, 68, 107, 126, 129, 11 145, 146, 154, 156, 157, 160, 163, 187, 12 189, 194 13 ------------------- EXHIBITS ----------------------- 14 DEFENDANTS' FOR I.D. 15 Defendants' Exhibit 10, Declaration 16 of Robin Gross................................. 5 17 Defendants' Exhibit 11, three-page letter, 18 dated May 15, 2000............................. 35 19 Defendants' Exhibit 12, four-page document titled 20 "1st Story of Level 1 printed in Full Format, 21 Copyright 2000 Toronto Star Newspapers, Ltd. 22 The Toronto Star".............................. 49 23 Defendants' Exhibit 13, three-page document 24 dated 2/8/00................................... 72 25 INTERIM COURT REPORTING 206 1 2 --------------- I N D E X (C O N T'D) -------------- 3 ------------------- EXHIBITS ----------------------- 4 DEFENDANT'S FOR I.D. 5 Defendants' Exhibit 14, attendance list at the 6 February 2000 copy protection technical working 7 group meeting................................... 197 8 9 --o0o-- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING