1 1 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF NEW YORK 4 5 UNIVERSAL CITY STUDIOS, INC., PARAMOUNT ) PICTURES CORPORATION, METRO-GOLDWYN-MAYER) 6 STUDIOS, INC., TRISTAR PICTURES, INC., ) COLUMBIA PICTURES INDUSTRIES, INC., ) 7 TIME WARNER ENTERTAINMENT CO., L.P., ) DISNEY ENTERPRISES, INC., and TWENTIETH ) 8 CENTURY FOX FILM CORPORATION, ) ) Civ. No. 9 Plaintiffs, ) 0277 (LAK) ) 10 vs. ) ) 11 ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN" ) and 2600 ENTERPRISES, INC., ) 12 ) Defendants. ) 13 -----------------------------------------) 14 May 17, 2000 15 9:45 a.m. 16 17 DEPOSITION of KENNETH A. JACOBSEN, 18 held at the offices of Frankfurt Garbus 19 Klein & Selz, P.C., 488 Madison Avenue, New 20 York, New York, pursuant to Order and 21 Notice, before ELIZABETH SANTAMARIA, a 22 Notary Public of the State of New York. 23 24 Reported by: ELIZABETH SANTAMARIA 25 INTERIM COURT REPORTING 2 1 2 A p p e a r a n c e s : 3 4 PROSKAUER ROSE LLP 5 Attorneys for Plaintiffs 6 1585 Broadway 7 New York, New York 10036-8299 8 BY: SCOTT P. COOPER, ESQ. 9 10 FRANKFURT GARBUS KLEIN & SELZ, P.C. 11 Attorneys for Defendants 12 488 Madison Avenue 13 New York, New York 10022 14 BY: MARTIN GARBUS, ESQ. 15 - and - 16 EDWARD HERNSTADT, ESQ. 17 ALSO PRESENT: 18 Motion Picture Association 19 Mark D. Litvack, Esq. In-house Counsel 20 --o0o-- 21 22 23 24 25 INTERIM COURT REPORTING 3 1 2 --o0o-- 3 4 IT IS HEREBY STIPULATED AND AGREED by 5 and between the attorneys for the 6 respective parties herein that filing and 7 sealing be and the same are hereby waived. 8 IT IS FURTHER STIPULATED AND AGREED 9 that all objections, except as to the form 10 of the question, shall be reserved to the 11 time of the trial. 12 IT IS FURTHER STIPULATED AND AGREED 13 that the within deposition may be sworn to 14 and signed before any officer authorized to 15 administer an oath, with the same force and 16 effect as if signed and sworn to before the 17 Court. 18 --oOo-- 19 20 21 22 23 24 25 INTERIM COURT REPORTING 4 1 2 --oOo-- 3 K E N N E T H A. J A C O B S E N, 4 called as a witness, having been duly sworn 5 by the Notary Public, was examined and 6 testified as follows: 7 EXAMINATION BY 8 MR. GARBUS: 9 10 Confidential 11 12 13 14 15 Q. Mr. Jacobsen, prior to coming here 16 today, did you read the deposition of Mr. Schumann? 17 A. I did not. 18 Q. Were you told about the deposition 19 of Mr. Schumann? 20 MR. COOPER: I am going to object 21 to the extent that the only conversations 22 Mr. Jacobsen had with respect to the 23 deposition of Mr. Schumann were with his 24 attorneys. 25 MR. GARBUS: Please mark this as INTERIM COURT REPORTING 5 1 Jacobsen 2 Exhibit 10. 3 (Defendants' Exhibit 10, Declaration 4 of Robin Gross, marked for identification, 5 as of this date.) 6 BY MR. GARBUS: 7 Q. Have you read the affidavits 8 submitted by either side in this case thus far? 9 A. I have not. 10 Q. The first question we asked of 11 Mr. Schumann dealt with -- do you know who Gerald 12 Gockner is? 13 A. I do not. 14 Q. Who is the deputy counsel for the 15 MPAA? 16 A. Greg Geckner. 17 Q. Do you know who he is? 18 A. Yes, I do. 19 Q. Do you know that some weeks ago he 20 said that so far as he knew there was no piracy 21 that he knew of with we respect to the use of 22 deCSS? 23 MR. COOPER: Is that a quote or 24 are you paraphrasing? 25 MR. GARBUS: I am quoting from the INTERIM COURT REPORTING 6 1 Jacobsen 2 Robin Gross affidavit at Paragraph 5, 3 Page 2. 4 Q. Do you know whether the following 5 statement that Mr. Geckner allegedly made is true 6 or not? 7 MR. COOPER: This is which 8 paragraph now? I will put it before the 9 witness. 10 MR. GARBUS: Paragraph 5, sentence 11 2. Let's mark this as the next document. 12 MR. COOPER: Sir, are you asking 13 whether Ms. Kaplan's recitation is a 14 correct quote of what Mr. Geckner said or 15 are you asking whether this witness knows 16 whether what is attributed to Mr. Geckner 17 was true, in fact? 18 MR. GARBUS: The latter. 19 A. If I understand, you are asking me 20 whether or not -- one, I don't know that 21 Mr. Geckner ever made such a statement. Okay? 22 Q. Let me show you Page 10 of the 23 deposition of Mr. Schumann, Line 15 to Line 18. 24 Can you tell me whether or not, to 25 the best of your recollection, if you know, whether INTERIM COURT REPORTING 7 1 Jacobsen 2 or not there has been any piracy resulting from 3 deCSS. 4 MR. COOPER: Are you asking the 5 witness to make reference to 6 Mr. Schumann's testimony in response to 7 your question or are you asking whether 8 the witness has such knowledge 9 independent of any reference to this 10 testimony? 11 MR. GARBUS: The latter. 12 MR. COOPER: Do you understand the 13 question? 14 THE WITNESS: No. 15 Q. Do you have any knowledge of any 16 piracy specifically relating to deCSS? 17 A. This may be a definitional problem, 18 but I would view piracy as the actual distribution 19 of deCSS itself. 20 Q. Right. 21 A. So I would consider that to be 22 piracy. 23 Q. Do you know whether any DVDs were 24 made as a result of the distribution of deCSS? 25 A. If you are asking me if I know of INTERIM COURT REPORTING 8 1 Jacobsen 2 any specific instances where someone has used the 3 deCSS utility to hack a DVD and then make an 4 unauthorized copy, the answer is no. 5 Q. Was there any attempt made by the 6 MPAA to determine whether or not anybody had hacked 7 a DVD using deCSS to make an unscrambled DVD? 8 MR. COOPER: Let me just say that 9 with respect to the nature of this 10 questioning I am going to designate the 11 witness' testimony and the transcript 12 confidential. 13 If we get into an area in which 14 I believe it is appropriate to 15 dedesignate the transcript, then I will 16 so state. Until then, the transcript 17 should be designated confidential 18 pursuant to the protective order in 19 place in this case. 20 MR. GARBUS: Do you want to state 21 the basis for that? 22 MR. COOPER: Not particularly, 23 unless you believe that it is required 24 under the order. 25 MR. GARBUS: I think you are INTERIM COURT REPORTING 9 1 Jacobsen 2 required to do that. 3 MR. COOPER: I disagree with you. 4 Just so you and I understand each other, 5 the reasoning is that I believe that the 6 MPAA's anti-piracy activities are not the 7 business of the public while those 8 activities are ongoing and that's the 9 reason for my designation. 10 Q. Has the MPAA filed any specific suit 11 against any one individual who has actually used 12 deCSS to descramble a DVD? 13 A. I don't -- 14 Q. Other than the California suit and 15 this suit where no particular individual is named 16 as having actually done the copying. 17 MR. COOPER: Would you read back 18 the question, please. 19 (Record read.) 20 MR. COOPER: Objection as to form. 21 I am not aware of any such California 22 action. 23 Q. Do you know anything about a 24 California action? 25 A. There is not a California action I INTERIM COURT REPORTING 10 1 Jacobsen 2 am aware of that we filed. 3 Q. Do you know about the DVD action? 4 A. Yes. 5 Q. Can you tell me whether or not the 6 MPAA has determined the name of any one person who 7 has copied a DVD using deCSS? 8 A. I think it would be fair to say that 9 I would be -- that I have no conclusive evidence 10 that any one person has done that. 11 Q. Now, has the MPAA been investigating 12 that for a period of time, that particular issue? 13 A. We have been -- I mean we have 14 looked at sites on the internet which deal with 15 deCSS. Looking at those sites has not resulted in 16 obtaining any evidence which I would feel 17 comfortable in saying conclusively proves anyone 18 has used it to copy a DVD. 19 There are individuals who are up on 20 the internet who claim that that is what it should 21 be used for and I have read at least one newspaper 22 article where a reporter claimed that he had, in 23 fact, used the utility to hack a DVD. 24 Q. Have you attempted to contact any of 25 the people whose names you have seen on the INTERIM COURT REPORTING 11 1 Jacobsen 2 internet who say that you can use deCSS to 3 descramble DVDs? 4 MR. COOPER: Assumes facts not in 5 evidence. 6 A. If they were posting or linking, we 7 would be sending them a C & D letter or sending the 8 ISP, Internet Service Provider, a cease and desist 9 letter. And if we were able to identify who the 10 party was that was actually up on the internet, we 11 would also send a copy of the letter to them. 12 Q. Other than cease and desist letters, 13 did you do anything further? 14 A. I don't believe we have. 15 Q. Did you get any responses from any 16 of the cease and desist letters? 17 A. Yes, we have received responses. 18 Q. Written responses? 19 A. Yes. 20 Q. And e-mail responses? 21 A. Let me take that back. It may have 22 been e-mail responses. I can't recall whether they 23 came in in written form or in e-mail form. 24 RQ MR. GARBUS: I would ask you to 25 produce those, Mr. Cooper. INTERIM COURT REPORTING 12 1 Jacobsen 2 MR. COOPER: I believe we have 3 already produced a great many and are 4 continuing to produce anymore that we 5 find. 6 MR. GARBUS: Thus far the answer 7 is you produced none. 8 MR. COOPER: I disagree with that, 9 unless there is some misunderstanding 10 about what the question elicited. Are 11 you saying that you have not received any 12 of the cease and desist letters? 13 MR. GARBUS: That wasn't the 14 question. 15 MR. COOPER: Then maybe there is a 16 misunderstanding. 17 Q. Have you received any responses -- 18 A. Yes. 19 MR. COOPER: Wait. 20 Q. -- to the cease and desist letters? 21 MR. COOPER: Let's get a whole 22 question out. 23 MR. GARBUS: Mr. Cooper, your 24 witness understood. 25 MR. COOPER: I am not satisfied INTERIM COURT REPORTING 13 1 Jacobsen 2 that he did. What responses are we 3 talking about? Are we talking about 4 specifically C & D letters to people who 5 came to have used deCSS to decrypt a DVD 6 and make a copy from it? 7 A. No. 8 MR. GARBUS: No. He said he sent 9 out cease and desist letters. I have 10 asked him with respect to those cease and 11 desist letters did he receive any 12 responses. 13 Q. You have said "yes"? Is that 14 correct? 15 A. That's correct. 16 RQ MR. GARBUS: I now ask you to 17 produce those responses and I tell you that 18 we have not gotten any responses. 19 MR. COOPER: I have looked at a 20 number of documents that I understand 21 have been produced to you which 22 constitute responses. It may be a 23 misunderstanding on your part about what 24 they consist of, but my understanding is 25 that many have been provided. If there INTERIM COURT REPORTING 14 1 Jacobsen 2 are more, it is the intent to provide 3 those, as well. But what I have looked 4 at would indicate that you are in error. 5 BY MR. GARBUS: 6 Q. Did you determine whether any of the 7 people you had sent the cease and desist letters to 8 had actually copied a DVD using deCSS? 9 A. I have no actual knowledge that 10 anybody has actually copied a DVD using deCSS. As 11 I said, I have read at least one newspaper article 12 where a reporter claimed to do so. 13 Q. Tell me about that article. 14 A. I just generally remember that the 15 reporter had utilized the utility to open the DVD, 16 see how it worked. 17 Q. Do you recall what he said about his 18 success or lack of success in using the utility? 19 A. My general recollection is that it 20 worked, but it was difficult. 21 Q. Do you recall how long it took him 22 to do it? 23 A. I don't recall specifically, but I 24 recall it was lengthy. 25 Q. Do you recall him saying whether or INTERIM COURT REPORTING 15 1 Jacobsen 2 not he lost the audio when he did it through a 3 DivX? 4 A. I don't. 5 Q. Do you recall him indicating whether 6 or not deCSS caused his computer to crash? 7 A. I don't. 8 Q. Do you know of anybody who has 9 applied deCSS where the computer has not crashed? 10 MR. COOPER: Assumes facts not in 11 evidence. Answer, if you can. 12 A. I don't think I personally know 13 anyone that has used deCSS. 14 Q. At the MPAA, did you ask anybody or 15 did the MPAA run any tests about the use of deCSS? 16 A. Not that I am aware of. 17 Q. Did the MPAA ever hire anybody to 18 perform any tests to see the efficacy of deCSS in 19 descrambling DVDs? 20 A. Not that I am aware of. 21 Q. To your knowledge, did any of the 22 movie studios -- 23 Let's just make one thing clear so I 24 think Mr. Cooper and I can agree. Pending a 25 disqualification motion, I am not permitted to ask INTERIM COURT REPORTING 16 1 Jacobsen 2 about Time Warner. When I use "movie studios" or 3 "plaintiffs," I am excluding Time Warner from that 4 definition. Can we have that agreement? 5 MR. COOPER: We do have that 6 agreement, yes. 7 Q. So anything you know about Time 8 Warner, don't tell me. In any way that Time Warner 9 is different from any question or answer, don't 10 tell me. 11 We have that agreement? 12 MR. COOPER: We do have that 13 agreement. 14 MR. GARBUS: Off the record. 15 (Question read.) 16 Q. -- test deCSS to see whether or not 17 it can be used to descramble a DVD? 18 A. I don't know. 19 Q. Now, you know what the broadband is? 20 A. Generally. 21 Q. Tell me what it is. 22 A. Broadband is a large volume capacity 23 on the internet. It is the ability to transmit 24 huge amounts of data in a very fast period of time. 25 Q. How long has the broadband been with INTERIM COURT REPORTING 17 1 Jacobsen 2 us? 3 MR. COOPER: Lacks foundation. 4 This witness, for the record, is not 5 designated to testify about matters of 6 general technology. 7 A. I don't know. 8 Q. To your knowledge, has a descrambled 9 DVD ever been shown on the internet? One that has 10 been descrambled through deCSS. 11 A. I don't know of -- I have no 12 specific knowledge of that occurring. 13 Q. To your knowledge, has anyone ever 14 tried to transmit a descrambled DVD, descrambled 15 through deCSS on the broadband? 16 MR. COOPER: Assumes facts not in 17 evidence. 18 A. I have no information that that has 19 ever occurred. 20 Q. To your knowledge, has anyone ever 21 tried to send a descrambled DVD, one that has been 22 descrambled through deCSS, on a T1 line? 23 A. I have no knowledge. 24 MR. COOPER: Same objection. 25 Q. Do you know what a T1 line is? INTERIM COURT REPORTING 18 1 Jacobsen 2 A. Generally. 3 Q. What is it? 4 A. It is a large capacity pipe which 5 would allow you to send a lot of data in a quick 6 period of time. 7 Q. Would your answer be the same with 8 respect to a T3 line? 9 MR. COOPER: Same objection. 10 A. Yes. 11 Q. With respect to a DSL line, do you 12 know if anyone has ever used a DSL line to send a 13 descrambled DVD, descrambled through deCSS? 14 MR. COOPER: I don't know how 15 anybody could know the method of 16 transport that a particular user of the 17 internet uses. This witness isn't 18 designated to testify as to such matters, 19 but I will let him answer if he knows. 20 A. I don't know of any such instance. 21 Q. With respect to what Mr. Cooper 22 said, namely that you can't tell the line of 23 communication over which a descrambled DVD might 24 pass, is there anyone at the MPAA who has tried to 25 monitor that? Namely, whether descrambled DVDs, INTERIM COURT REPORTING 19 1 Jacobsen 2 descrambled through deCSS, are going out over any 3 of these DSL, T1, T3, or broadband? 4 A. I'm sorry. I lost the first part of 5 the question. 6 MR. GARBUS: Read back the 7 question. 8 (Record read.) 9 A. If I understand the question, I 10 don't know if there is anybody at MPAA or MPA who 11 could determine what the source of transmission 12 was. 13 Q. Is there anyone at any of the movie 14 studios or plaintiffs who can? 15 A. I don't know that answer. 16 Q. Do you know if they have? 17 A. I don't. 18 Q. Do you know if they have tried to? 19 A. I don't. 20 Q. Do you know if anyone at the movie 21 studios has ever seen a descrambled DVD, 22 descrambled through deCSS, on the internet? 23 MR. COOPER: I caution the witness 24 to distinguish, in responding to this, 25 between privileged and unprivileged INTERIM COURT REPORTING 20 1 Jacobsen 2 sources of information, and not to 3 provide a response with respect to 4 privileged sources. 5 A. I don't. 6 Q. With respect to seeing a DVD 7 descrambled through deCSS on the internet, do you 8 know whether anyone at the movie studios or the 9 MPAA has tried to send such a DVD over the 10 internet? 11 A. I do not. 12 Q. Do you know whether anyone at the 13 movie studios has ever learned the name of one 14 single person who has attempted to copy a DVD 15 through the descrambling by deCSS? 16 A. I don't know. 17 Q. Do you know if the movie companies 18 have done any investigation into that question? 19 A. Independently of MPAA? 20 Q. Yes. 21 A. I'm not sure I understand the 22 question. 23 24 Confidential 25 INTERIM COURT REPORTING 21 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 22 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 23 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 24 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 25 1 Jacobsen 2 3 Confidential 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q. Putting aside any conversations 24 where you were involved with your lawyers or the 25 MPAA lawyers or the lawyers for any of the INTERIM COURT REPORTING 26 1 Jacobsen 2 plaintiffs in this case, did you have any 3 conversations with any people at any of those 4 studios who had ever known of one single instance 5 of DVDs being descrambled through deCSS and a copy 6 thereafter being made? 7 A. No. 8 Q. Have you asked these plaintiffs that 9 question? Namely, whether or not they knew of any 10 single instance of a DVD being descrambled to make 11 a copy, with the exception of any conversations 12 that any lawyers were in any way involved in? 13 A. If I understand the question, you 14 are asking me if I asked it outside of the context 15 of a possible privilege? No. 16 Q. Have you ever seen any documents 17 from any of the plaintiffs that indicate whether or 18 not they know of one single DVD being descrambled 19 by deCSS? 20 A. No. 21 Q. Do you know whether they have such 22 documents? 23 A. No. 24 Q. Do you know if they have ever made 25 their own investigation into whether or not deCSS INTERIM COURT REPORTING 27 1 Jacobsen 2 was ever used for descrambling a DVD? 3 A. No. 4 Q. After you saw the Toronto article, 5 was there any attempt made by you or anyone acting 6 on your behalf to contact the Toronto reporter? 7 MR. COOPER: Assumes facts not in 8 evidence. I don't remember the witness 9 identifying the Toronto article. 10 MR. GARBUS: He did. 11 MR. COOPER: As such, I think the 12 witness testified that there was an 13 article. 14 Q. Do you know where the article was? 15 A. I read it off the internet, but I 16 don't recall which paper it was. 17 Q. Did you at any time try to contact 18 the author of that article? 19 A. I did not. 20 Q. Do you know anybody at any of the 21 plaintiffs or anybody acting on your behalf that 22 did? 23 A. No. 24 Q. Did you try to determine whether or 25 not after that article was printed anybody reading INTERIM COURT REPORTING 28 1 Jacobsen 2 that article sought to descramble DVDs through 3 using deCSS? 4 A. I do not, no. 5 Q. Can you just tell me approximately, 6 in round numbers, the dollar value of the resources 7 that the MPAA has used to determine whether or not 8 deCSS is an effective descrambling tool for DVDs? 9 A. I'm not aware of any money we have 10 spent to test whether or not it effectively 11 descrambles. 12 Q. Have you -- by "you" I mean you or 13 the MPAA -- produced or prepared any documents 14 concerning the amount of the use of deCSS over any 15 communication system, whether it be T1, T3, DSL, or 16 broadband at any time in the future? 17 MR. COOPER: Read back the 18 question, please. 19 (Record read.) 20 MR. COOPER: I object as to the 21 form of the question. Unintelligible and 22 ambiguous. 23 Q. Do you understand it? 24 A. No. 25 Q. Have there been any projections made INTERIM COURT REPORTING 29 1 Jacobsen 2 orally or in writing by you or anyone at the MPAA 3 for the potential use of deCSS to make copies of 4 DVDs in the future? 5 MR. COOPER: That's a "yes" or 6 "no" question. 7 A. Not that I am aware of. No. 8 Q. Have there been any studies made to 9 determine the potential use on the broadband of 10 individuals attempting to descramble DVDs through 11 the use of deCSS? 12 A. I'm sorry, but I didn't understand 13 the question. 14 MR. GARBUS: Read the question 15 back. 16 (Record read.) 17 A. Studies by who? I'm sorry. 18 Q. You. 19 A. Regarding the attempted use? 20 Q. For example, is there any document 21 which would say, we expect that over the broadband 22 in the next ten years or the next one year, that 23 deCSS will be transmitted and we may see X number 24 of DVDs unscrambled in that way? 25 A. No. INTERIM COURT REPORTING 30 1 Jacobsen 2 Q. In other words, let me just make it 3 clear what I am talking about. I will give you the 4 general scope. 5 I am now trying to look towards the 6 future and I am trying to determine whether or not 7 you, the MPAA, the movie studios, have any 8 documents or any oral conversations you can tell me 9 about, about the potential impact of actual copies 10 of DVDs that are unscrambled through deCSS. Are 11 there such studies? 12 A. Not that I am aware of. 13 MR. COOPER: Your question 14 included oral discussions and then the 15 clarification at the end, studies. You 16 are looking at studies? 17 Q. Let's look at three things. Oral 18 conversations where lawyers are involved, oral 19 conversations where no lawyers are involved, and 20 then any studies or reports concerning that subject 21 matter. 22 A. Okay. 23 Q. Are there any studies that you have 24 seen done by the MPAA or any of the other 25 plaintiffs concerning the future use, potential use INTERIM COURT REPORTING 31 1 Jacobsen 2 of deCSS to copy DVDs? 3 A. No. 4 Q. I ask you the same thing with 5 respect to reports. 6 A. No. 7 Q. I ask you the same thing with 8 respect to oral conversations that take place 9 without lawyers being around or involved. 10 A. No. 11 Q. Do you know what a DVD burner is? 12 A. I have a general understanding. 13 Q. What is your general understanding? 14 A. It would be a device which would 15 allow you to copy a DVD from your hard drive. 16 Q. Have there been any studies made by 17 you -- let's save some time. 18 When I say "you" now, I am talking 19 about you, the MPAA, or the movie, that you know 20 of. Every time I use the word "you," then, in the 21 next few questions, it implies that entire 22 universe. 23 MR. GARBUS: Read back my question 24 so far. 25 (Record read.) INTERIM COURT REPORTING 32 1 Jacobsen 2 Q. -- as to the potential future use of 3 DVD burners to copy DVDs? 4 A. The fact that a DVD burner may exist 5 or will exist has been the subject of discussion. 6 Q. Do you know if it exists today? 7 A. I believe that it has been 8 developed, yes. 9 Q. Do you know what they cost? 10 A. I don't know precisely, but my 11 understanding is they are still quite expensive. 12 Q. Between $5,000 and $10,000? 13 A. Possibly. 14 Q. Have you made any studies or reports 15 or had any oral conversations, excluding oral 16 conversations where lawyers are present, discussing 17 the potential use of DVD burners to show copies of 18 DVDs? 19 A. I don't understand the question, 20 because I don't understand a burner that would be 21 something that would show a copy of a DVD. 22 Q. What does a burner do? 23 A. Makes a copy of a DVD. 24 Q. Do you have any studies -- by "you" 25 I mean all the plaintiffs -- about the potential INTERIM COURT REPORTING 33 1 Jacobsen 2 copies that can be made in the future through the 3 use of DVD burners? 4 A. I don't know of any specific written 5 reports or studies. 6 Q. Do you have any knowledge of any 7 individual consumers using DVD burners to make a 8 single copy for themselves of a DVD? 9 A. No. 10 Q. Have you or the MPAA retained any 11 outside experts on the deCSS question, other than 12 Robert Schumann? 13 A. Can I -- 14 MR. COOPER: Can you answer that 15 question from general knowledge? That 16 is, other than from what you have 17 discussed with attorneys. 18 THE WITNESS: I think I probably 19 cannot. 20 BY MR. GARBUS: 21 Q. So you can't tell me, as you sit 22 here today, whether or not the MPAA has retained 23 any other experts with respect to the deCSS area? 24 MR. COOPER: From nonprivileged 25 sources? INTERIM COURT REPORTING 34 1 Jacobsen 2 MR. GARBUS: From nonprivileged 3 sources. 4 Q. Is that right? 5 A. That's correct. 6 Q. Have you seen any exchange of 7 correspondence, excluding privileged documents, if 8 in fact a privilege applies, between the MPAA and 9 any of the studios concerning the use of deCSS? 10 A. I'm sorry. Could you repeat the 11 first part of the question? 12 MR. GARBUS: Read it back. 13 (Record read.) 14 MR. COOPER: Read it back. 15 (Record read.) 16 A. Excluding privileged documents, no. 17 Q. When you say "privileged documents," 18 are you referring to documents exchanged directly 19 by the MPAA with lawyers and documents exchanged 20 between the movie studios and lawyers or you are 21 also referring to documents exchanged between the 22 movie studios and the MPAA without lawyers? 23 MR. COOPER: Do you understand the 24 question? 25 THE WITNESS: Yes, I understand INTERIM COURT REPORTING 35 1 Jacobsen 2 the question. 3 A. I am referring to documents -- the 4 two former that you set up. Documents between 5 lawyers and the studios and the studios and the 6 lawyers. 7 Q. Have you seen any documents between 8 the MPAA and the studios, nonlawyer documents, that 9 refer in any way to deCSS? 10 A. Not that I can recall. 11 MR. GARBUS: Let's mark this as 12 the next exhibit. 13 (Defendants' Exhibit 11, three-page 14 letter, dated May 15, 2000, marked for 15 identification, as of this date.) 16 RQ MR. GARBUS: Mr. Cooper, I show you 17 Defendant's Exhibit 11, which is addressed 18 to Carla Miller, copied to Leon Gold. We 19 had a conversation Monday about the 20 production of documents for today and he 21 asked that we send him a letter and I asked 22 whether or not you have any of those 23 documents here with you today. 24 MR. COOPER: My understanding of 25 the conversation that led up to this INTERIM COURT REPORTING 36 1 Jacobsen 2 letter is a little different than what 3 you just described. My understanding was 4 that Mr. Gold made a general suggestion 5 to you, that you give an itemization of 6 documents you were seeking and offered to 7 respond to that itemization. I didn't 8 understand the conversation to be 9 directly focused on this witness' 10 appearance here today or that the 11 documents described would be provided 12 today. 13 I note, although this is the 14 first time I have seen the letter 15 personally, that most of them focus on 16 Mr. Schumann's testimony as opposed to 17 Mr. Jacobsen's. I do not have any 18 additional documents to produce in 19 response to this letter as we sit here. 20 Now that you have drawn it to my 21 attention, I will investigate where we 22 stand in response to it and I will let 23 you know. 24 MR. GARBUS: Thank you very much. 25 BY MR. GARBUS: INTERIM COURT REPORTING 37 1 Jacobsen 2 Q. Were you involved in any way in the 3 preparation of the cease and desist letters? 4 A. In my position, I have general 5 oversight authority for the fact that we have a 6 program that would send cease and desist letters. 7 But no, the actual construction of the letter 8 itself would have been done by our attorneys. 9 Q. Proskauer? 10 A. No. Our in-house attorneys. 11 Mr. Litvack would have overseen the project. 12 Q. You are the senior vice president 13 and director for worldwide anti-piracy; is that 14 right? 15 A. That is correct. 16 Q. Are you a lawyer? 17 A. Yes, I am. 18 Q. How long have you been practicing? 19 MR. COOPER: Assumes facts not in 20 evidence. Answer it. 21 A. I actually have never practiced. 22 MR. GARBUS: Off the record. 23 (Discussion off the record.) 24 BY MR. GARBUS: 25 Q. How long have you been at the MPAA? INTERIM COURT REPORTING 38 1 Jacobsen 2 A. I have been employed by the MPAA 3 since January 2nd of 1995. 4 Q. Can you tell me generally what your 5 duties include? 6 MR. COOPER: Today or from the 7 beginning? 8 MR. GARBUS: Today. 9 A. Today I have oversight 10 responsibility for our entire worldwide anti-piracy 11 program. We are active in approximately 67 12 countries and I have responsibility for overseeing 13 how that program runs, the strategies that are 14 developed, the budget that is put together and 15 submitted to the members on an annual basis for 16 funding, correspondence about the program to the 17 member companies and their representatives, hiring 18 and firing. All of the management decisions that 19 are made regarding that program. 20 21 22 Confidential 23 24 25 INTERIM COURT REPORTING 39 1 2 3 4 Confidential 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 40 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 41 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 Q. How long have you had this position? 13 A. I was promoted the 1st of April of 14 this year and I occupied the position sort of co 15 with my predecessor until he left April 21st, and 16 then I took over. 17 Q. Prior to that what was your 18 position? 19 A. Prior to that, for two years I was 20 the vice president and director of the U.S. 21 anti-piracy program. 22 Q. In all that time, have any one of 23 these people who were your employees ever told you 24 that they had ever seen a copy of a DVD descrambled 25 by deCSS? INTERIM COURT REPORTING 42 1 Jacobsen 2 MR. COOPER: Exclude from that 3 those people who operate as attorneys, as 4 you have described them. 5 A. Not conclusively. 6 Q. When you say "not conclusively," did 7 any one of them ever tell you that they had learned 8 the name of one single person who had ever copied a 9 DVD through the use of the descrambling -- 10 descrambling through deCSS? 11 MR. COOPER: Asked and answered. 12 MR. GARBUS: Different question. 13 A. Not conclusively, no. 14 Q. When you say "not conclusively," did 15 you ask your office -- and by "your office" I mean 16 either the office you held before April 1st or the 17 people under your direction after April 1st. 18 -- whether they could find a single 19 copy of a DVD that had been descrambled through 20 deCSS or the name of a single individual who had 21 used deCSS who descrambled a DVD? 22 MR. COOPER: Could I just, just 23 for simplicity so I don't interrupt your 24 questions and the witness' answer, can we 25 have a running understanding that you INTERIM COURT REPORTING 43 1 Jacobsen 2 mean to exclude the conversations with 3 those people the witness has identified 4 as operating as attorneys? 5 MR. GARBUS: Absolutely. 6 A. I have never asked the question in 7 that fashion. 8 Q. What is the question that you have 9 asked? 10 A. I have asked people that are in our 11 employment structure whether or not they can 12 identify the source of unauthorized DVDs that we 13 have located. 14 Q. Has anyone ever told you that deCSS 15 was the source? 16 A. Conclusively? No. 17 Q. Have you tried to make a conclusive 18 determination as to whether or not any of these 19 copies of DVDs came from the use of deCSS? 20 A. In every instance where we analyze 21 for source we would try to make a determination 22 about what the original source of the product would 23 be, deCSS would be one of those possibilities. 24 Q. And you never were able to determine 25 that one single one ever came through deCSS? INTERIM COURT REPORTING 44 1 Jacobsen 2 A. To be perfectly honest, I am not 3 even certain that that can be done. We don't 4 know -- I don't know whether or not deCSS leaves an 5 identifiable mark when it is used to descramble a 6 DVD. But we are, in fact, looking at some DVDs and 7 trying to make a determination about what the 8 source is. 9 Q. Just going back, at the present 10 time, you can't tell me that you have seen one copy 11 of a DVD that has definitely been made as a result 12 of the deCSS descrambling? 13 A. That's correct. 14 Q. At the present time, you can't tell 15 me that you know the name of one person who has 16 descrambled a DVD through deCSS to make a copy? 17 A. I know people have claimed that. I 18 cannot conclusively tell you that what they are 19 claiming is accurate. 20 Q. Other than the claims and other than 21 the article in the newspaper, do you know the name 22 of one person who you have determined has made such 23 a copy? 24 A. No. 25 Q. When you say "people claim," you are INTERIM COURT REPORTING 45 1 Jacobsen 2 talking about people who claim this in internet 3 postings? 4 A. That is correct. 5 Q. Did the internet postings frequently 6 give you the name of the poster who posts that 7 information? 8 MR. COOPER: Those particular 9 postings? 10 MR. GARBUS: Yes. 11 A. It would depend. 12 Q. Sometimes you know personally the 13 site from which it comes? 14 A. That would be correct. 15 Q. Have you ever gone to the site or 16 tried to further investigate into those people who 17 claim, according to you, that they have made DVDs 18 through the use of deCSS descramblers? 19 A. I think one of the original 20 defendants in this case claimed that on his 21 website. 22 Q. Claimed that he had made it? 23 A. Yes. Or that copies were being 24 made. 25 Q. He claimed that copies were being INTERIM COURT REPORTING 46 1 Jacobsen 2 made. Did you ever determine whether that was true 3 or not? 4 A. No. 5 Q. In other words, did you ever make a 6 distinction or did you ever determine the 7 difference between rhetoric, bragging, polemics, 8 and the actual making of a copy of a DVD through 9 the use of deCSS? 10 MR. COOPER: I object to the 11 characterization and the form of the 12 question. I'm not sure it is a fair 13 characterization of what the witness has 14 referred to, to refer to it as rhetoric, 15 polemics, and so on. 16 If the question is has the 17 witness distinguished or attempted to 18 distinguish between names and copying, 19 in fact, I think you can answer that 20 question. 21 Q. Go ahead. 22 A. I'm sorry. Was the question have I 23 attempted to distinguish or have I been able to? 24 MR. GARBUS: We will take it with 25 Mr. Cooper's modification. INTERIM COURT REPORTING 47 1 Jacobsen 2 A. Which is attempted? 3 MR. GARBUS: Read back the whole 4 conversation. 5 (Record read.) 6 A. I have been unable to determine 7 whether or not any copies were actually made or 8 people were just claiming to do it without having 9 done so. 10 Q. Did anyone on any of these postings 11 give you the specific name of a film or DVD that 12 they had succeeded in descrambling through the use 13 of deCSS? 14 A. I don't recall. 15 Q. Would your recollection be that they 16 spoke in general terms and said, "I've done it" or 17 "I will do it" or "You can do it," rather than 18 saying I have done it with respect to a particular 19 film, on a particular date, in a particular place? 20 MR. GARBUS: Off the record. 21 (Discussion off the record.) 22 A. I don't recall. 23 Q. Do you recall the name of one single 24 title that anyone has ever claimed they have ever 25 been able to copy through the use of deCSS? INTERIM COURT REPORTING 48 1 Jacobsen 2 MR. COOPER: I'm not sure how to 3 distinguish that from your prior 4 question. 5 A. No. 6 Q. With respect to the people who have 7 used what I have called polemics, have you 8 determined through investigation the names of these 9 people and where they live? 10 A. If you are asking me the people that 11 have shown up on the web who have made these 12 claims, the answer is we have not determined who 13 they are or where they live, to my knowledge. 14 Q. Have you attempted to do so? 15 MR. COOPER: You are 16 distinguishing the current defendant 17 which the witness has already said they 18 identified and who he believed to have 19 made some such claims? 20 MR. GARBUS: Emmanuel Goldstein? 21 MR. COOPER: Eric Corley. 22 MR. GARBUS: Off the record. 23 (Discussion off the record.) 24 MR. GARBUS: Where are we? 25 (Record read.) INTERIM COURT REPORTING 49 1 Jacobsen 2 MR. COOPER: Exclude conversations 3 with counsel as a source for the answer 4 to that last question. 5 A. If they were the target of a C & D 6 letter or a cease and desist letter, we would have 7 done some preliminary investigation to see if we 8 can determine an address where we can send a copy 9 of the letter to. 10 MR. COOPER: Is this an 11 appropriate time to take a brief break? 12 MR. GARBUS: If you would like. 13 (Recess taken.) 14 MR. GARBUS: Please mark this as 15 an exhibit. 16 (Defendants' Exhibit 12, four-page 17 document titled "1st Story of Level 1 18 printed in Full Format, Copyright 2000 19 Toronto Star Newspapers, Ltd. The Toronto 20 Star," marked for identification, as of 21 this date.) 22 (Recess taken.) 23 BY MR. GARBUS: 24 Q. Mr. Jacobsen, do you know of any 25 technology now known but not yet created or INTERIM COURT REPORTING 50 1 Jacobsen 2 anticipated that can use deCSS to descramble DVDs? 3 MR. COOPER: Would you read back 4 the question. 5 (Record read.) 6 Q. -- and make copies? 7 MR. COOPER: I find the question 8 terribly confusing. I think it assumes 9 facts not in evidence. 10 Q. Go ahead. 11 A. I don't understand the question, 12 because my understanding is deCSS allows you to 13 decrypt a DVD and then copy it to your hard drive. 14 Q. Once it is on the hard drive, it is 15 on the hard drive in descrambled form or scrambled 16 form? 17 A. I believe it's in the unscrambled 18 form. 19 Q. So you believe that once it goes 20 onto your hard drive you can immediately show it on 21 your video monitor? 22 MR. COOPER: This witness is not 23 here to testify on the technical aspects 24 of deCSS. 25 Q. Is that your understanding? INTERIM COURT REPORTING 51 1 Jacobsen 2 A. That is my understanding. 3 Q. So that once you put it on your hard 4 drive it is there and all you have to do is push a 5 button and you can watch it on your computer? 6 MR. COOPER: That probably 7 misstates the technological aspects of 8 what it requires to make it happen and 9 this witness is not here for this 10 purpose. 11 Q. Go ahead. 12 A. I misspoke. I mean there would have 13 to be some sort of media player associated with the 14 computer. But my understanding is if it is an 15 unscrambled format, you would need a software 16 program that would allow you to play it on a 17 computer. 18 Q. What kind of software program would 19 that be? 20 A. A media player, Windows media 21 player. 22 Q. Other than the broadband lines, the 23 T1 lines, the T3 lines or the DSL, or the regular 24 telephone lines, do you know of any other method of 25 transmission of deCSS to unscramble DVDs? INTERIM COURT REPORTING 52 1 Jacobsen 2 MR. COOPER: Again, this witness 3 isn't here to testify on the 4 technological matters. I think you have 5 misstated the function of deCSS and 6 misstated, as well, what the various 7 methods of transmission for access to the 8 internet are. With those objections, if 9 the witness can answer the question, I 10 will allow him to do so. 11 A. I didn't understand the question. 12 Q. Other than DSL lines, telephone 13 lines, T1, T3, or the broadband, do you know of any 14 other technology that permits for the sending of 15 decrypted DVD movies? 16 A. Sending them where? I don't 17 understand the question. 18 Q. From one person to another. 19 A. Computer to computer? 20 Q. Yes. 21 A. I mean I would suppose there is no 22 reason why someone couldn't put it on a disk and 23 put it into your computer disk to disk. I don't 24 know the answer. 25 Q. There are various different ways or INTERIM COURT REPORTING 53 1 Jacobsen 2 cables or pathways that you can have piracy on. 3 One of the present pathways are DSL, another one is 4 T1, another one is T3, another one is broadband. 5 Can you tell me whether there is any 6 other pathway that you know of? 7 MR. COOPER: You have used a 8 variety of different references as you 9 have asked this question. I will note 10 that my understanding of broadband might 11 differ from yours. 12 MR. GARBUS: We might call 13 broadband T3. 14 Q. Whatever interpretation you take of 15 broadband, can you answer that question? If you 16 want to give me several different interpretations 17 of broadband, just give it to me. 18 A. There is a whole developing field of 19 wireless communication that you didn't mention, 20 which I assume would be a method to also transmit 21 information from computer to computer. 22 Q. Thus far, have you determined 23 whether or not decrypted DVD movies have been sent 24 over the wireless? 25 A. I have not. INTERIM COURT REPORTING 54 1 Jacobsen 2 Q. Do you know if that is possible? 3 MR. COOPER: To determine -- 4 MR. GARBUS: -- whether that can 5 be done. 6 A. I would assume it would be possible 7 to determine. It could be done. I don't have the 8 technical ability myself to make that 9 determination. 10 Q. Has anyone at the MPAA, to your 11 knowledge, made any technological determination 12 with the use of the wireless with respect to 13 decrypted DVD movies? How long it would take, how 14 it would be done, or any of the mechanics of it. 15 MR. COOPER: Assumes facts not in 16 evidence. 17 Q. Go ahead, Mr. Jacobsen. 18 A. If you are asking me if I know of 19 any studies that have been undertaken to determine 20 how long it would take to transmit from one 21 computer to another, the answer is know. 22 Q. Let me show you Exhibit 12 and ask 23 whether or not that is the article that you saw. 24 A. (Witness reviewed document.) 25 I'm not 100 percent sure, but it INTERIM COURT REPORTING 55 1 Jacobsen 2 could be. I mean it rings a bell. 3 Q. Do you want to just take a look at 4 it for another minute? 5 A. (Witness complied with request.) 6 Q. Is this the article that you read? 7 A. I don't remember. It could be. 8 Q. This article is dated May 4th, 9 according to the printout that I have. Is this the 10 first time that you learned that anybody had tried 11 to use deCSS to make a copy of a DVD? I believe 12 that was your testimony before, that the first time 13 you ever heard of anyone actually trying to make a 14 copy was when you saw the article. 15 MR. COOPER: First of all, the 16 witness can't identify this as the 17 article, so the reference to the date 18 isn't terribly meaningful. But I think, 19 as well, you are misunderstanding his 20 prior testimony. 21 BY MR. GARBUS: 22 Q. Go ahead, Mr. Jacobsen. Why don't 23 you again straighten us both out. 24 A. I think what I said was I read an 25 article by a news reporter who claimed he had done INTERIM COURT REPORTING 56 1 Jacobsen 2 it and I have also been made aware of website 3 locations or internet locations where people make 4 the same claim. Perhaps not in the detail that the 5 reporter did, but claiming they have done it. 6 Q. And in the website where people 7 claim that they have done it, have they told you, 8 do you remember, anything about how long it took 9 them to do it? 10 A. I don't recall. 11 Q. Do you recall whether they say they 12 did it successfully? 13 A. I don't recall that that discussion 14 occurred. It is just the statement that it had 15 been done. 16 Q. Do you recall anything about the 17 quality of the DVD that they claim had been copied? 18 A. I don't. 19 Q. Can you produce copies or any 20 information concerning those websites? 21 A. Well, the one, as I did state, was a 22 prior defendant in this case, Mr. Reimerdes, he had 23 posted it on his -- 24 Q. Other than Mr. Reimerdes, do you 25 know of anyone else who has ever claimed to have INTERIM COURT REPORTING 57 1 Jacobsen 2 done it? 3 A. I have not actually seen the sites 4 myself. I have been informed by members of my 5 staff that those claims have been made. 6 Q. Have you downloaded the printed 7 material from those sites? 8 A. I have not. 9 Q. Has your staff? 10 A. I don't know that answer. 11 RQ Q. Will you find that out? And if you 12 have, will you please give me the printed material? 13 If you don't have the printed material, will you 14 give me any other documentation that you have 15 indicating the names of the websites, the names of 16 the people, if you have them, who allegedly claim 17 that you can do it or should do it or had done it, 18 and their addresses? 19 MR. COOPER: We will take the 20 request under advisement. 21 Q. So as you sit here today, the only 22 person that you know who ever claimed that they had 23 copied a DVD through deCSS is Reimerdes; is that 24 right? 25 A. And apparently the reporter in this INTERIM COURT REPORTING 58 1 Jacobsen 2 (indicating). 3 Q. Two people. 4 MR. COOPER: The witness was 5 referencing Exhibit 12. 6 Q. Do you know whether Reimerdes had 7 actually ever done it? 8 A. I do not. 9 Q. Did anyone ever question him to see 10 whether he had done it? 11 A. I don't know. 12 Q. So you don't know whether, again, he 13 was exaggerating or distorting it or whether he had 14 actually done it? 15 A. That's correct. 16 17 18 Confidential 19 20 21 22 23 24 25 INTERIM COURT REPORTING 59 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 60 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q. But you can tell me that in trying 24 to determine the source of all of the pirated 25 copies that the MPAA has seen, you are able to say INTERIM COURT REPORTING 61 1 Jacobsen 2 conclusively that any one copy ever came from a 3 deCSS? 4 MR. COOPER: That he has 5 previously answered. 6 Q. Is that right? 7 A. That is correct. 8 Q. How long have you been trying to 9 determine the sources of pirated material? I 10 presume for as long as you have been involved in 11 this venture of anti-piracy. 12 A. Your presumption would be correct. 13 In the five years, five plus months that I have 14 worked there, that has always been something that I 15 have tried to do. 16 Q. So it is fair to say that in the 17 last year, to your knowledge, no one has been ever 18 able to attribute a copied DVD to a deCSS source? 19 MR. COOPER: I think your use of 20 it, the last year of your time frame is 21 misleading. I am not aware that deCSS 22 has existed for a year. 23 Q. To your knowledge, how long has 24 deCSS existed? 25 A. I became aware of it either in INTERIM COURT REPORTING 62 1 Jacobsen 2 October or November of 1999. 3 Q. Since October or November of 1999, 4 have you ever determined that one single copy has 5 ever been made through the use of deCSS? 6 MR. COOPER: Asked and answered. 7 A. I have no conclusive evidence that 8 has ever occurred. 9 Q. When you say "conclusive," do you 10 have any inconclusive evidence? 11 MR. COOPER: Asked and answered. 12 Q. The only inconclusive evidence is 13 the newspaper article? 14 MR. COOPER: Mischaracterizes the 15 witness' testimony. 16 Q. What is the inconclusive evidence? 17 MR. COOPER: Asked and answered. 18 A. Would be claims made by people that 19 they have done so. 20 RQ MR. GARBUS: Mr. Cooper, we 21 anticipate going to trial in this case. I 22 would ask that if between now and the trial 23 of that case there is any information about 24 deCSS as a source of a particular pirated 25 copy, that that information be furnished to INTERIM COURT REPORTING 63 1 Jacobsen 2 me as part of the document request. 3 In other words, I would not want the 4 document request either with respect to 5 pirated copies or different technologies 6 that carry deCSS or decrypted DVDs to be 7 limited solely to the time of the 8 deposition, but if you get additional 9 documents with respect to any of the 10 questions that I have asked this witness 11 and you agree to produce files up to 12 today's date, I would like to make that 13 request for the documents for the date 14 going forward to the date of trial. 15 Off the record. 16 MR. COOPER: I note the request. 17 We will take it under advisement. 18 Q. Did you ever contact the newspaper 19 in which you saw the article, whether it be this 20 article or a different article, and advise the 21 newspaper not to run articles about the method of 22 making decrypted movies from deCSS? 23 MR. COOPER: Would you read it 24 back, please. 25 (Record read.) INTERIM COURT REPORTING 64 1 Jacobsen 2 A. I never contacted the writer of the 3 newspaper article that I read. 4 Q. Did you ever determine whether or 5 not those newspapers ever got a response, letters, 6 or comments, either orally or in writing, to the 7 author's article where he claimed that he had used 8 deCSS to make copies of DVDs? 9 A. I'm sorry. Did you ask if I ever -- 10 MR. GARBUS: Off the record. 11 (Discussion off the record.) 12 A. I never contacted the newspaper, at 13 all. 14 Q. Has anyone ever told you about the 15 quality of DVD movie that has been decrypted 16 through the use of deCSS? 17 A. No. 18 Q. So we can't get into a discussion 19 about good quality, bad quality, poor quality, 20 terrific quality, because that is not something you 21 have any knowledge of? 22 A. That's correct. 23 Q. Do you have on your staff people who 24 are "technical people" who know how long it would 25 take to upload a gigabyte? INTERIM COURT REPORTING 65 1 Jacobsen 2 MR. COOPER: A gigabyte of data? 3 MR. GARBUS: Yes. 4 MR. COOPER: Onto another site on 5 the internet? 6 MR. GARBUS: Yes. 7 A. I have someone on my staff who is 8 conversant with the internet. 9 Q. Who is that? 10 11 12 13 14 Confidential 15 16 17 18 19 20 21 22 23 24 25 INTERIM COURT REPORTING 66 1 Confidential 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Let me show you the last line of 25 Paragraph 21, at Page 8 of the affidavit of John INTERIM COURT REPORTING 67 1 Jacobsen 2 Gilmore and ask whether you have any information 3 about whether or not that sentence is accurate. 4 MR. COOPER: The attention -- 5 Q. "Using the internet to send or sell 6 copies of stored movies is particularly 7 unreasonable: Uploading a single gigabyte over a 8 56K modem would take about 40 hours. So, an entire 9 DVD would take many days." 10 Do you have the technical knowledge 11 to pass judgment on the accuracy of that statement? 12 MR. COOPER: I will note that he 13 is not here to testify on such matters. 14 Q. Go ahead. 15 A. I would assume he is correct, but 16 the majority of the people that we are concerned 17 about are not using 56K modem. 18 Q. What are they using? 19 A. They are using either broadband or a 20 T1, a T3, a university system. 21 Q. How long would it take over T1? 22 A. I don't know the answer. It would 23 be significantly less than this. 24 Q. How long would it take over T3? 25 A. I don't know the answer. INTERIM COURT REPORTING 68 1 Jacobsen 2 Q. How long would it take over 3 broadband? 4 A. I don't know the answer. 5 Q. Does anybody at the MPAA know? 6 A. I think all of those factors vary 7 upon the size of the file that you are dealing 8 with, how busy the particular pipe is at the 9 particular time you are trying to use it. But yes, 10 we would have rough estimates of what the time 11 frame would be. 12 RQ MR. GARBUS: Would you produce that 13 information? 14 MR. COOPER: The fact that they 15 could estimate it doesn't mean that they 16 do have estimates in existence. 17 Q. Have you estimated it? 18 A. In general discussion perhaps, but I 19 don't recall ever producing a written document that 20 sets up those estimates. 21 Q. No pieces of paper? 22 A. That's correct. 23 Q. Have you heard of anybody ever 24 trying to use the broadband to send a decrypted DVD 25 movie? INTERIM COURT REPORTING 69 1 Jacobsen 2 A. I think I have already testified, 3 outside of the fact that people have claimed they 4 have used DVD deCSS, I am unaware of anybody 5 actually transmitting it or actually decrypting a 6 DVD. 7 Q. Before you said that the mere 8 transmission of deCSS is piracy. Is that right? 9 A. What I suggested was the posting for 10 trafficking or trafficking in deCSS, I would 11 consider it to be within the term "piracy," as I 12 used the term "piracy" in my program. 13 MR. GARBUS: Can I hear the answer 14 again? 15 (Record read.) 16 Q. How about the postings, if for 17 reasons other than trafficking? As, for example, 18 on university sites? 19 MR. COOPER: Calls for a legal 20 conclusion and assumes facts not in 21 evidence. 22 Q. Go ahead. Can you answer the 23 question? 24 A. The distribution, in my mind, would 25 be the same as trafficking. If I am offering for INTERIM COURT REPORTING 70 1 Jacobsen 2 distribution deCSS, that is another word that is 3 synonymous with trafficking. 4 Q. You are saying that the mere posting 5 by anybody of deCSS, whether it be academic, a 6 university, an author, would under your definition 7 come within trafficking? 8 MR. COOPER: Same objection. 9 Q. Is that right? 10 A. Not necessarily. 11 Q. Explain that to me. 12 MR. COOPER: Same objections. 13 Q. Go ahead. 14 MR. COOPER: Let me confer with 15 the witness. 16 MR. GARBUS: Let me get an answer 17 at this time. 18 MR. COOPER: I just want to find 19 out if the witness is -- 20 MR. GARBUS: Let me get an answer. 21 MR. COOPER: As long as it is 22 exclusive of material from you had from 23 counsel, that's fine. 24 Q. Go ahead. Just give me the answer. 25 A. I generally understand that there INTERIM COURT REPORTING 71 1 Jacobsen 2 might be situations where parts of the utility or 3 reasons for the utility being used may or may not 4 violate the law. I mean potentially that 5 possibility exists. 6 RL Q. Tell me where that potentiality 7 exists. 8 DI MR. COOPER: This witness is not 9 offered for purposes of testifying on legal 10 matters and I am not going to allow this 11 witness to provide testimony with respect 12 to his understanding of the law. He is 13 neither an expert, nor is he being offered 14 as a witness capable of testifying on the 15 law and I am going to direct him not to 16 answer questions outside of the scope of 17 his expertise and his designation as a 18 witness. 19 Q. Have you ever seen any postings in 20 universities or in academic journals or by 21 cryptographers that you would consider not to be 22 trafficking? 23 A. I don't recall ever seeing such 24 postings. Period. 25 Q. Have you ever looked at academic INTERIM COURT REPORTING 72 1 Jacobsen 2 sites? 3 A. Have I? 4 Q. Yes. 5 A. No. 6 MR. GARBUS: Mark this as the next 7 exhibit. 8 (Defendants' Exhibit 13, three-page 9 document dated 2/8/00, marked for 10 identification, as of this date.) 11 BY MR. GARBUS: 12 Q. Wasn't a cease and desist letter 13 sent out to Carnegie Mellon University concerning 14 the posting of deCSS? 15 MR. COOPER: Let me just, for the 16 record, note that the witness has been 17 provided a document which appears to be a 18 letter from the MPAA to a Mark Poepping, 19 which appears to be a correspondence 20 falling within the description Mr. Garbus 21 just made. 22 A. I mean it would appear from this 23 Exhibit that the answer is yes. 24 Q. Do you know whether or not any 25 copies of DVDs were made from the posting at INTERIM COURT REPORTING 73 1 Jacobsen 2 Carnegie Mellon University? 3 MR. COOPER: Calls for 4 speculation. 5 A. I do not. 6 Q. Did you ever try and determine that? 7 A. No. 8 Q. Do you know what use was being put 9 at Carnegie Mellon to the posting of the deCSS? 10 A. I do not. 11 Q. Did you ever make any inquiry -- by 12 "you" I mean the MPAA -- before or after you sent 13 the letter to Carnegie Mellon University? 14 MR. COOPER: Would you read back 15 the question. 16 (Record read.) 17 MR. COOPER: I just note some 18 inquiry must have been done in order to 19 send the letter. You mean to distinguish 20 that? 21 Q. In other words, did you ever make 22 any inquiry into Carnegie Mellon University as to 23 why it was being posted before you sent the letter? 24 A. Did I? No. 25 Q. By "I," I am talking about you, the INTERIM COURT REPORTING 74 1 Jacobsen 2 MPAA, the nine plaintiffs. 3 A. I don't know. 4 Q. Was any distinction made before the 5 cease and desist letters were sent out as to who 6 should receive them within that large group of 7 people who had posted deCSS? 8 MR. COOPER: If I understand your 9 question, I just want to admonish the 10 witness to exclude from his answer any 11 information that comes solely through 12 conversations in which counsel 13 participated. 14 A. I don't have an answer that I could 15 make which would not involve discussions with 16 counsel. 17 MR. GARBUS: Read back the 18 question and the answer. 19 (Record read.) 20 BY MR. GARBUS: 21 Q. When did you graduate from law 22 school? 23 A. 1969. 24 Q. Which law school did you go to? 25 A. Northwestern University . INTERIM COURT REPORTING 75 1 Jacobsen 2 Q. Which college did you go to? 3 A. Valparaiso University. 4 V-A-L-P-A-R-A-I-S-O. 5 Q. What did you do after you left law 6 school? 7 A. I went to work for the Federal 8 Bureau of Investigation. 9 Q. For how long? 10 A. Twenty-five and a half years. 11 Q. What kind of work did you do for the 12 Federal Bureau of Investigation? 13 A. I was a special agent. 14 Q. What were your duties there? 15 A. Wide variety, but I worked many 16 different types of violations. For a period of 17 time I was our in-house office legal counsel and 18 for the last twelve years I was supervisor of 19 various squads and programs. 20 RL Q. Before when you said you could see 21 how postings could be nonviolative, is the Carnegie 22 Mellon such a posting? 23 DI MR. COOPER: I will make the same 24 objection with respect to the last 25 question. Calling for a legal conclusion INTERIM COURT REPORTING 76 1 Jacobsen 2 and being outside the scope of this 3 witness' expertise in the area for which he 4 has been designated. I direct him not to 5 answer. 6 BY MR. GARBUS: 7 Q. Can you see any postings that you as 8 a senior vice president and director of worldwide 9 anti-piracy would not constitute any involvement in 10 "trafficking"? 11 MR. COOPER: Read back the 12 question. 13 (Record read.) 14 MR. COOPER: In addition to the 15 objections to the prior question, I 16 believe that this is an incomplete 17 hypothetical and calls for speculation. 18 Q. Go ahead. 19 A. Can I assume you are talking about 20 deCSS posting? 21 Q. Yes. 22 A. For purposes of distribution to 23 anybody that wants to pick it up on the net? 24 Q. No. In other words, if Carnegie 25 Mellon posts it, does that necessarily mean that INTERIM COURT REPORTING 77 1 Jacobsen 2 Carnegie Mellon wants anybody on the net to have 3 it? Is that the sole reason for Carnegie Mellon to 4 post it? 5 MR. COOPER: Same objection as to 6 the last question. The witness is not 7 here to speculate about the purposes that 8 Carnegie Mellon may have in posting 9 anything. 10 A. I do not know what the reason was 11 that they posted it for. I mean I can't attribute 12 a reason for them without knowing what the facts 13 were. 14 Q. Do you know where Carnegie Mellon 15 posted it? 16 A. I do not. 17 Q. Do you know whether any 18 cryptographers posted deCSS? 19 A. I do not. 20 Q. Can you see any reason why 21 cryptographers would post deCSS? 22 MR. COOPER: Calls for 23 speculation. It is an incomplete 24 hypothetical. 25 A. I don't know. I am not a INTERIM COURT REPORTING 78 1 Jacobsen 2 cryptographer. 3 Q. Have you ever had any training in 4 cryptography? 5 A. No. 6 Q. Have you seen the affidavit of Frank 7 Stevenson in this case where he indicates he is 8 going to write an article, including deCSS in it? 9 A. I have not seen Mr. Stevenson's 10 affidavit. 11 Q. Is it your view that writing an 12 academic article, including deCSS in that article 13 would be trafficking? 14 MR. COOPER: Calls for a legal 15 conclusion. It is outside the ambit of 16 this witness' designation. 17 Q. Go ahead. 18 A. I'm not sure that I understand what 19 you mean by "including deCSS in the article." 20 MR. COOPER: It is also an 21 incomplete hypothetical. 22 RL Q. If an academic were to write about 23 the method by which deCSS was arrived at, is it 24 your understanding that that article would be 25 violative of Section 1201? INTERIM COURT REPORTING 79 1 Jacobsen 2 DI MR. COOPER: This witness has not 3 been designated and is not here to testify 4 about hypothetical legal situations which 5 call for legal conclusions. I direct him 6 not to answer such questions. 7 RL Q. Is it your understanding that it 8 would be piracy if an academic wrote an article 9 describing how deCSS was created? 10 MR. COOPER: Same objections. 11 Q. Go ahead. 12 MR. COOPER: Same direction. 13 MR. GARBUS: Not to answer? 14 DI MR. COOPER: I directed him not to 15 answer. 16 MR. GARBUS: Not to answer? 17 MR. COOPER: Yes. 18 MR. GARBUS: I thought we had an 19 understanding that the witness would 20 answer questions and that the judge would 21 then rule on them. I didn't understand 22 that there would be directions not to 23 answer. Is your position that you will 24 direct him not to answer until such time 25 as a judge rules on the question? INTERIM COURT REPORTING 80 1 Jacobsen 2 MR. COOPER: I'm not sure what 3 understanding you are referring to. I'm 4 not aware of any understanding in this 5 case that would change the rules of 6 Federal Evidence which require and as 7 well allow that I make objections with 8 respect to the attorney-client privilege 9 and as well as the competency to answer 10 questions on an expert basis. 11 If this witness were designated 12 to testify in expert matters, I would 13 view it differently. But he is not. 14 He is here to testify about factual 15 matters. 16 MR. GARBUS: We will get a ruling. 17 This witness is being asked to testify 18 about piracy and I am asking him what 19 constitutes piracy and what constitutes 20 trafficking, and what is violative of 21 trafficking laws. 22 MR. COOPER: My objection is not 23 as to any factual matters within this 24 witness' knowledge. My objection is to 25 hypothetical legal matters as to which INTERIM COURT REPORTING 81 1 Jacobsen 2 you are seeking a legal opinion. 3 Q. Have you advised any academic 4 institutions that you consider the posting of deCSS 5 to be piracy? 6 MR. COOPER: Objection as to form. 7 It's vague. 8 Q. Go ahead. 9 A. If you -- well, I mean Exhibit 13 10 indicates or establishes the fact that we have sent 11 to a university a cease and desist letter regarding 12 the posting of the deCSS circumvention device. 13 Q. So does that mean that you have 14 concluded that irrespective of the purpose for 15 which that university posted the deCSS, it would be 16 a violation of the anti-piracy statute? 17 MR. COOPER: The letter speaks for 18 itself. If you are asking the witness to 19 draw a conclusion, I object on that 20 basis. If you are asking the witness to 21 testify about the internal conclusions of 22 the MPAA with respect to the legality, I 23 direct the witness not to answer if the 24 sole source of that information is from 25 conversations with counsel. INTERIM COURT REPORTING 82 1 Jacobsen 2 A. I am confused. I'm sorry. 3 THE WITNESS: Please read back the 4 question and what my counsel just said. 5 (Record read.) 6 A. I will have to not answer, because 7 the source of the information would be from 8 conversations with counsel. 9 Q. Do you know enough about 10 cryptography to tell me whether or not the 11 publication of deCSS would provide a valuable tool 12 for the academic discipline of cryptography? 13 A. I do not. 14 Q. Do you know enough about 15 cryptography to tell me whether or not the 16 publication of the entire deCSS code would be of 17 value to the academic study of cryptography? 18 A. I do not. 19 Q. Do you know whether or not anyone -- 20 when you said "you," you were speaking on behalf of 21 yourself, the MPAA, and the nine movie studios? 22 MR. COOPER: Would you -- I don't 23 know how the answer to your last answer 24 could possibly be "yes," but would you 25 read back the prior two questions? INTERIM COURT REPORTING 83 1 Jacobsen 2 MR. GARBUS: I have already asked 3 him -- when I say "you," I mean you, the 4 MPAA, the movie studios. 5 MR. COOPER: I understand what you 6 mean. I thought -- 7 MR. GARBUS: He agreed to that. 8 If you want, I will just go through it 9 and I will ask the same question ten 10 different times. 11 MR. COOPER: That's fine. I just 12 want -- before we go into that, I just 13 want to have the last two questions read 14 back. 15 (Record read.) 16 MR. COOPER: Let me just say that 17 from the specific questions you asked, I 18 don't think a reasonable person could 19 have concluded that you wanted the 20 witness to testify not only about his own 21 personal knowledge, but about the 22 knowledge of every person employed by any 23 of the plaintiffs, excluding Time Warner 24 or any of the employees of the MPAA, and 25 I believe the witness manifestly INTERIM COURT REPORTING 84 1 Jacobsen 2 testified about his personal knowledge in 3 answer to those two questions. 4 Q. After we get past your personal 5 knowledge, do you know of anybody at the MPAA -- 6 MR. GARBUS: Off the record. 7 (Record read.) 8 BY MR. GARBUS: 9 Q. Do you know anybody at the MPAA who 10 knows whether or not the publication of the method 11 of which deCSS is arrived at would be of value in 12 the study of cryptography? 13 A. I don't know if there is anybody at 14 the MPAA who has that type of knowledge about 15 cryptography. 16 Q. Have you had any discussions with 17 anyone at the MPAA concerning the potential uses of 18 deCSS, whether the code itself or the method at 19 which it was arrived at would be of value in the 20 academic discipline of cryptography? 21 MR. COOPER: Excluding discussions 22 with counsel. 23 A. No. 24 Q. Do you know of anybody at the MPAA 25 who would know about the value of an article INTERIM COURT REPORTING 85 1 Jacobsen 2 describing reverse engineering in the academic 3 discipline of cryptography? 4 MR. COOPER: In the abstract or 5 with respect to deCSS? 6 MR. GARBUS: With respect to 7 deCSS. 8 A. I don't know if there is anybody at 9 the MPAA who would have that knowledge. 10 Q. Do you know what reverse engineering 11 is? 12 A. Generally. 13 Q. Have you seen any documents that use 14 the term reverse engineering and deCSS at either 15 the MPAA or the movie studio plaintiffs? 16 MR. COOPER: That's a "yes" or 17 "no" question. 18 A. Together? Where they used them 19 together? 20 Q. Yes. 21 A. I believe I have. 22 Q. Where are those documents? 23 A. I think they are pleadings in this 24 case. 25 Q. Other than the pleadings. INTERIM COURT REPORTING 86 1 Jacobsen 2 A. I think there may be some -- there 3 is a possibility that on the website there may be 4 some FAQs that deal with -- I don't recall if they 5 have reverse engineering and deCSS in the same 6 document, but it's possible. 7 Q. Have you downloaded it? 8 A. Discussing this case. 9 Q. Which websites? 10 A. I believe our website, the MPAA 11 website. 12 Q. Other than the MPAA website? 13 A. Not that I am aware of. 14 Q. Do you know of any cryptographers at 15 the movie studios? 16 A. I do not. 17 Q. Do you know whether any 18 cryptographers were hired by the MPAA or the movie 19 studios prior to the institution of this lawsuit? 20 MR. COOPER: That's a "yes" or 21 "no" question. 22 A. I don't know. 23 Q. Do you know whether any 24 cryptographers were hired by the MPAA or the movie 25 studios after the institution of this lawsuit? INTERIM COURT REPORTING 87 1 Jacobsen 2 A. I don't know if Mr. Schumann is a 3 cryptographer or not. 4 Q. The only person that you know that 5 has been hired as an expert with respect to this 6 case by either the MPAA or Proskauer or the movie 7 studios is Mr. Schumann; is that right? 8 MR. COOPER: Exclude from that 9 answer anything you know only through 10 discussions with counsel. 11 A. Yes. 12 Q. Have you had any discussions 13 yourself with any cryptographers who might become 14 potential witnesses in this case? 15 A. I have not. 16 Q. To your knowledge, has anybody at 17 any of the movie studios thus far had any 18 conversations with any cryptographers or scientists 19 who might become witnesses in this case? 20 MR. COOPER: Same admonition with 21 respect to conversations with counsel. 22 A. I don't know of any. 23 Q. When you say you don't know of any, 24 since you are in charge of the worldwide 25 Anti-Piracy Unit, would you think that any would INTERIM COURT REPORTING 88 1 Jacobsen 2 have been hired without your knowledge? 3 MR. COOPER: You are talking about 4 hired in connection with this litigation? 5 MR. GARBUS: Hired in connection 6 with the deCSS issue. 7 MR. COOPER: Lacks foundation. 8 A. By the movie studios or by MPAA? 9 Q. Either. 10 A. By MPAA, I would expect that I would 11 know. By the movie studios, I don't know whether I 12 would know or not. 13 Q. Has anyone at the movie studios told 14 you that they have hired any scientists, academists 15 or cryptographers with respect to the deCSS suit? 16 MR. COOPER: Again, excludes from 17 your answer privileged communications. 18 A. No. 19 Q. Do you know what DivX is? 20 MR. COOPER: D-I-V-X? 21 MR. GARBUS: Yes. 22 A. In what context? I know of several 23 DivX's. 24 Q. Which are? 25 A. The original DivX I knew about was a INTERIM COURT REPORTING 89 1 Jacobsen 2 format for DVD. It was a competing format to a 3 normal type of DVD. It was heavily encrypted. 4 Rather than being sold, it was rented. You rented 5 it for a period of time. You had to use a special 6 player. It was a direct payment off that special 7 player and off the reading of the disk. That 8 company, as far as I know, is now defunct. 9 Q. Do you know what Livid is? 10 A. No, I do not. 11 Q. Do you know what Linux is? 12 A. Generally. 13 Q. What is it?