14 June 2000. Thanks to Anonymous.
See also Part 2 of the deposition: http://cryptome.org/mpaa-v-2600-kj2.htm
See related files:
http://www.eff.org/pub/Intellectual_property/DVD/
http://eon.law.harvard.edu/openlaw/dvd/
http://www.2600.com
http://jya.com/cryptout.htm#DVD-DeCSS
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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
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2 A p p e a r a n c e s :
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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
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4 IT IS HEREBY STIPULATED AND AGREED by
5 and between the attorneys for the
6 respective parties herein that filing and
7 sealing be and the same are hereby waived.
8 IT IS FURTHER STIPULATED AND AGREED
9 that all objections, except as to the form
10 of the question, shall be reserved to the
11 time of the trial.
12 IT IS FURTHER STIPULATED AND AGREED
13 that the within deposition may be sworn to
14 and signed before any officer authorized to
15 administer an oath, with the same force and
16 effect as if signed and sworn to before the
17 Court.
18 --oOo--
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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?
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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.)
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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
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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?
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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
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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:
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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?
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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
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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
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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?
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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
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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?
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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
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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
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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.
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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?
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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.)
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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
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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?
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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?
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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
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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.
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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
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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
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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
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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
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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
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1 Confidential
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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23
24
25
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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
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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
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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
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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.)
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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?
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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
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24 Q. Let me show you the last line of
25 Paragraph 21, at Page 8 of the affidavit of John
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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.
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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?
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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
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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
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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
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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
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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
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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 .
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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
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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
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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
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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?
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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?
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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
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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.
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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?
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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
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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
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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.
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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?
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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
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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
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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
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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
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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
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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,
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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?
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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?
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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.
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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?
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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
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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:
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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.
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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
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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
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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?
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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
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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
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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
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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?
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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
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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.
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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.
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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
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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?
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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
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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
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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.
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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
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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.)
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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.)
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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
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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
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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.
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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?
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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.
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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?
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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.
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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?
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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?
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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?
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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.
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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
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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
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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?
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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
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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
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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.
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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
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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?
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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.
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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?
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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
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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
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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
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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
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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?
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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.
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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
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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
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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
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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.
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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?
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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?
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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
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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
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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.
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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
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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?
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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?
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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
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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.
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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
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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
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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
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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
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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
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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
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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?
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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.
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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?
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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
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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?
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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.
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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
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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
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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
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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
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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
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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?
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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
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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
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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
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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.
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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
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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
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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.
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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?
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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.
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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?
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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1
2 C E R T I F I C A T E
3 STATE OF NEW YORK )
4 ) ss.:
5 COUNTY OF RICHMOND)
6 I, ELIZABETH SANTAMARIA, a Shorthand
7 Reporter and Notary Public within and for
8 the State of New York, do hereby certify:
9 That 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
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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
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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
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