1 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF NEW YORK 4 UNIVERSAL CITY STUDIOS, INC.; ) 5 PARAMOUNT PICTURES CORPORATION; ) METRO-GOLDWYN-MAYER, INC.; TRISTAR ) 6 PICTURES, INC.; COLUMBIA PICTURES ) INDUSTRIES, INC.; TIME WARNER ) 7 ENTERTAINMENT CO., L.P.; DISNEY ) EMTERPRISES, INC.; AND TWENTIETH ) 8 CENTURY FOX FILM CORPORATON, ) ) 9 ) PlaintiffS, )00 Civ. 277 10 )(LAK)(RLE) vs. ) 11 ) SHAWN C. REIMERDES; ERIC CORLEY ) 12 A/K/A "EMMANUEL GOLDSTEIN"; ) ROMAN KAZAN; AND 2600 ) 13 ENTERPRISES, INC. ) ) 14 Defendant. ) ------------------------------------) 15 16 17 CONTINUED VIDEOTAPED DEPOSITION OF 18 EMMANUEL GOLDSTEIN 19 New York, New York 20 Wednesday, June 28, 2000 21 22 23 24 Reported by: Thomas R. Nichols, RPR 25 JOB NO. 110289 166 1 2 3 4 5 6 7 June 28, 2000 8 10:20 a.m. 9 10 Continued videotaped deposition of 11 EMMANUEL GOLDSTEIN, held at the offices 12 of Proskauer Rose LLP, 1585 Broadway, 13 New York, New York, pursuant to Notice, 14 before Thomas R. Nichols, a Registered 15 Professional Reporter and a Notary Public 16 of the State of New York. 17 18 19 20 21 22 23 24 25 167 1 2 A P P E A R A N C E S: 3 4 PROSKAUER ROSE LLP 5 Attorneys for Plaintiffs 6 1585 Broadway 7 New York, New York 10036-8299 8 BY: LEON GOLD, ESQ. 9 DAVID KRULWICH, ESQ. 10 -and- 11 MOTION PICTURE ASSOCIATION OF AMERICA 12 15503 Ventura Boulevard 13 Encino, California 91436 14 BY: MARK D. LITVACK, ESQ. 15 16 FRANKFURT GARBUS KLEIN & SELZ, PC 17 Attorneys for Defendants 18 488 Madison Avenue 19 New York, New York 10022 20 BY: MARTIN GARBUS, ESQ. 21 22 ALSO PRESENT: 23 RUBEN MARTINEZ, THE VIDEOGRAPHER 24 25 168 1 Goldstein 2 THE VIDEOGRAPHER: The time is 10:16 3 a.m. on June 28, 2000, and this is tape 4 number 3 of the continuation deposition of 5 Mr. Emmanuel Goldstein. 6 E M M A N U E L G O L D S T E I N , resumed as a 7 witness, having been previously sworn by the 8 Notary Public, was examined and testified 9 further as follows: 10 EXAMINATION BY (Cont'd.) 11 MR. GOLD: 12 Q. Mr. Goldstein, just to remind you, you 13 are not being sworn in again, but you are under 14 oath. 15 Has 2600 obtained any donations as a 16 result of this case? 17 A. Not donations. It's hard to say, but I 18 am sure we have gotten people to subscribe, buy a 19 hat, buy a T-shirt, whatever it is that we sell, 20 but no donations per se. 21 Q. Do you have a retainer agreement with 22 Mr. Garbus's firm? 23 MR. GARBUS: I will object to it. Go 24 ahead. 25 A. Our legal team is paid for by the 169 1 Goldstein 2 Electronic Frontier Foundation. So all financial 3 information would go through them. 4 Q. The Electronic Frontier Foundation is 5 paying whatever fees are being paid on the case? 6 A. That's right. 7 Q. Do you know anything -- let me ask you 8 again. Did you make any agreement that you know of 9 with Mr. Garbus or his firm with respect to what 10 you were retaining Mr. Garbus for or how you were 11 paying Mr. Garbus? And I mean his firm. 12 A. The only agreement I made with 13 Mr. Garbus is that he is my attorney, he is 14 representing me, he is working for me. 15 Q. Did you agree to pay fees? 16 A. The fees, as I said, are being covered 17 by Electronic Frontier Foundation. 18 Q. As far as you know, that was an 19 agreement between Mr. Garbus and the Electronic 20 Frontier Foundation? 21 A. Yes. 22 Q. Is either your agreement or their 23 agreement in writing? 24 A. I would imagine so. 25 MR. GARBUS: I would object to this 170 1 Goldstein 2 line of inquiry. If the judge requires us 3 to answer, we'll certainly answer. 4 MR. GOLD: Are you, sir, directing 5 your witness not to answer any questions 6 about the -- 7 MR. GARBUS: No. I think you ought 8 not to ask it, but I am not directing him 9 not to answer. 10 Q. Has the Electronic Frontier Foundation 11 sent out any E-mails requesting contributions? 12 A. I believe EFF always sends out E-mails 13 requesting contributions, but not just E-mails, but 14 they have a web site. They have a paper 15 publication. They have fund-raising events of 16 various sorts. 17 Q. Did they publish any material on their 18 web site or have any communications in which they 19 solicited contributions to the defense of this 20 case? 21 A. I couldn't say for sure. 22 MR. GARBUS: Then don't speculate. 23 A. Specifically -- 24 MR. GARBUS: Don't speculate. 25 A. I don't know specifically. 171 1 Goldstein 2 Q. You don't know one way or the other. 3 A. No. 4 RQ MR. GOLD: Mr. Garbus, I do request any 5 written material relating to any agreements 6 with Electronic Frontier Foundation relating 7 to this case. 8 MR. GARBUS: I will take it under 9 advisement. 10 Q. Do you have any documents relating to 11 the Electronic Frontier Foundation? I don't mean 12 E-mail communications you see by computer, but any 13 documents at all relating to the Electronic 14 Frontier Foundation? 15 A. No. 16 Q. Have you ever broken into a computer 17 that doesn't belong to you? 18 MR. GARBUS: Objection. 19 A. In the past, in the 1980s, yes. 20 Q. How many times? 21 A. I don't know a specific number of times. 22 MR. GARBUS: I object to the question. 23 Q. More than ten? 24 A. Probably. 25 Q. Do you remember who owned any of the 172 1 Goldstein 2 computers you broke into? 3 MR. GARBUS: Objection. 4 A. The computers were all owned by the 5 company I mentioned yesterday, Telenet. 6 Q. A telephone company? 7 A. No, it's -- it was a communications 8 company. I believe they later merged with GTE. 9 Q. And all of the computers as far as you 10 remember that you broke into were owned by them? 11 A. Yes. 12 Q. You have never broken into anyone else's 13 computer -- 14 A. No. 15 Q. -- in the nineties. 16 A. Oh, no. 17 Q. For what purpose did you break into 18 their computers? 19 MR. GARBUS: I presume, Mr. Gold, to 20 save time I have a continuing objection to 21 the entire line of questioning. 22 MR. GOLD: Yes, sir. 23 A. Back then I was just curious. It was 24 new technology. 25 Q. Why break into their computers rather 173 1 Goldstein 2 than Bell Telephone or the Pentagon computers or 3 government computers? Why did you choose them? 4 A. This was before the Net was actually a 5 very popular thing. This was kind of the early 6 days. So people were still feeling around. And as 7 I mentioned yesterday, they had a one-letter 8 password, so it wasn't exactly difficult. 9 I should stress that it caused no harm. 10 All we used it for was communicating amongst 11 friends. I explained everything and helped their 12 security system become stronger as a result. 13 Q. But didn't you take material from their 14 computer that could be used by yourself or other 15 people to make free telephone calls? 16 A. No. There was no such material, no. 17 Q. What did you find in there that you 18 took? 19 MR. GARBUS: Object to the form of the 20 question. 21 A. We didn't take anything. It was a 22 computer. We didn't have computers back then. It 23 was something to explore, something -- something to 24 learn about. We learned how it worked. We 25 communicated amongst ourselves, and that's the 174 1 Goldstein 2 extent of it. 3 MR. GOLD: This is Exhibit 5. 4 (Handing.) 5 Q. If, Mr. Goldstein, if you could turn to 6 page 4, paragraph 13. 7 A. Yes. 8 Q. The first line of that paragraph states, 9 quote, "While I don't practice or condone breaking 10 into computer systems," and the sentence goes on 11 from there. 12 Is that true? 13 A. Yes. 14 Q. You mean it's true for the nineties, but 15 not for the eighties. 16 A. That's a present tense sentence. 17 Q. It's a present tense. So in other 18 words, you did at one time in your life practice 19 and condone breaking into computers; is that true? 20 MR. GARBUS: Object to the form of the 21 question. 22 A. I wouldn't go so far as to say I 23 condoned, encouraged other people to do anything. 24 I have made mistakes of my own in the past, and I 25 have learned from them and moved on. 175 1 Goldstein 2 Q. When you used the word "condoned" in 3 your answer, what did it mean to you? 4 A. On this line here? Encourage people -- 5 Q. In your answer you used the word -- 6 A. My meaning of the word "condone" was to 7 encourage people to do something. 8 Q. And you never encouraged anybody to 9 break into that company's security system? 10 A. No. I didn't encourage people to do 11 that and I haven't encouraged people to do anything 12 like that since. 13 Q. And you just did it yourself back in the 14 eighties. 15 A. Yes. And met other people who had found 16 the same hole that I had found. 17 Q. The next sentence, which is the last 18 line on page 4, begins on the last line on page 4, 19 says, "Through the magazine and the radio program, 20 I try to instill a sense of responsibility in those 21 who may consider doing such things, so that they 22 carefully think about their actions and don't cause 23 any damages." 24 Are you referring to specific magazine 25 articles or editorials? 176 1 Goldstein 2 MR. GARBUS: I object to it. The 3 sentence speaks for itself. There is no 4 reference there to particular articles. It 5 is a sentence in an affidavit. I don't 6 think it requires interpretation. I object 7 to the form. I don't see any reference to 8 any other magazine article. 9 A. It's a general statement about the 10 magazine. Not any specific article. 11 Q. Did you ever write anything for the 12 magazine where you tried to instill a sense of 13 responsibility in people who may consider breaking 14 into computers so they think about their actions? 15 A. We try to get people to think about 16 their actions before they do something, such as 17 break into a computer, and hopefully not do 18 something like that. 19 Q. My question to you is, do you remember 20 writing any, and if you don't remember, just tell 21 me, do you remember writing any editorials or 22 stories where you told people in so many words, 23 don't break into computers? 24 MR. GARBUS: Mr. Goldstein, do you 25 want to look through some magazines that we 177 1 Goldstein 2 have here? 3 A. I can say that that's something that I 4 have said. I can't point to a specific article, 5 but I know that's a viewpoint that I've expressed. 6 People shouldn't break into computers for various 7 reasons. 8 Q. I am going to ask you to identify the 9 article or editorial that you wrote for the 2600 10 publication which says that and leave a space in 11 the answer for you to do so. 12 TO BE FURNISHED: _________________________________ 13 __________________________________________________. 14 MR. GARBUS: Excuse me. Did we make 15 clear to you that we brought some additional 16 copies? 17 MR. GOLD: This morning? 18 MR. GARBUS: Yes. 19 MR. GOLD: But heavens, if I read them 20 it will take me for the rest -- 21 MR. GARBUS: Let the record indicate I 22 think that we are giving you 21 additional 23 copies. 24 MR. GOLD: I thank you. I think that 25 also responds to my specific request 178 1 Goldstein 2 yesterday for all copies of the magazine. 3 Q. And I gather that's the ones you 4 readily found. 5 A. Those are the ones in your initial 6 request. There is another stack coming today 7 FedEx. You should have that. 8 Q. Thank you. I appreciate that. 9 MR. GARBUS: Off the record. 10 (Discussion off the record.) 11 Q. The last sentence in paragraph 13, which 12 is contained on page 5, says, "I also try to 13 instill a sense of reality into the mainstream so 14 that the actions of such people are judged in a 15 more even-handed way and so that people aren't sent 16 to prison for relatively minor offenses." 17 What were the relatively minor offenses 18 you had in mind in that sentence? 19 A. Offenses that don't cause any kind of 20 damage, that don't cause any kind of financial 21 loss. 22 Q. Who, as you understood it when you wrote 23 this, who was going to make the judgment of whether 24 or not it caused damage or financial loss? 25 A. A court of law. Inside a court of law. 179 1 Goldstein 2 If no damage is found. 3 Q. But a court of law doesn't get into it 4 until the computer is broken into and sometimes not 5 even then. In other words -- 6 MR. GARBUS: I object to the question. 7 Q. Again, I am trying to find out which are 8 the relatively minor offenses that you had in mind? 9 A. They're all kinds of relatively minor 10 offenses. 11 Q. Yes. And some major offenses. 12 A. Such as hacking a web page for instance 13 and changing a single file, but leaving the 14 original. That's just one example. 15 Q. Do you consider circumventing a 16 protective device that protects digital 17 intellectual property a minor offense? 18 MR. GARBUS: I object to it. 19 A. That is a very general question. And I 20 am not a lawyer, so I can't really.... 21 Q. Well, I didn't ask you to give a legal 22 answer. I am asking you, sir, whether you consider 23 now the circumvention of a protective device that 24 protects digital electronic property to be a minor 25 offense. 180 1 Goldstein 2 MR. GARBUS: I object to it. He has 3 already testified that he is not a lawyer 4 and he doesn't know what the statutes 5 provide for that kind of conduct. 6 Q. I am just asking, sir, if you consider 7 it to be a minor offense. Do you have an answer? 8 A. Again, I think it's a very general 9 question. 10 Q. I know. Do you have a general answer? 11 MR. GARBUS: Just say you can't 12 answer. 13 A. I can't answer 14 MO MR. GOLD: I know it's kind of 15 old-fashioned, Mr. Garbus, but I really do 16 object to a lawyer telling his witness what 17 to say. You can make an objection to the 18 question if you want to. I suppose you can 19 direct him not to answer so we have to take 20 it to the court. But I think the one thing 21 you can't do is say, quote, just say you 22 don't know. 23 MR. GARBUS: He has already said that. 24 MR. GOLD: Yes, I don't think that's 25 right. I am a little old-fashioned, and if 181 1 Goldstein 2 it happens again I am going to take it to 3 the court. And I don't want to do that. So 4 I am pleading with you. 5 MR. GARBUS: OK. 6 Q. Have you ever watched a decrypted movie? 7 A. I have never watched a DVD if that's 8 what you're asking. 9 Q. Have you ever watched a decrypted DVD? 10 A. No. 11 Q. Do you believe there are a few bad 12 hackers? 13 MR. GARBUS: I object to the form of 14 the question. 15 A. I believe any group has bad people, yes. 16 Q. How would you define "bad hackers"? 17 A. I would define bad hackers as people who 18 don't subscribe to the overall philosophy of 19 causing no harm, not intruding on people's privacy, 20 not violating the laws. General common sense 21 things. 22 Q. Those people are good hackers? 23 A. Those are bad hackers, people who 24 violate those particular values which are part of 25 the hacker world. 182 1 Goldstein 2 Q. Am I correct that traffic to 2600 on the 3 Internet has substantially increased since the 4 beginning of this lawsuit? 5 A. It's -- as I said, we don't keep logs, 6 so it's difficult to say for sure. I would imagine 7 it has. But it's really -- we don't sell anything 8 on our web site. We don't have advertisements 9 there, so there's no real advantage to us to have, 10 say, 50,000 people instead of 30,000 people a day. 11 Q. Well, tell us where the income, if any, 12 that 2600 has comes from? 13 A. Everything comes from the magazine or 14 the things that we sell, such as T-shirts and hats. 15 Q. When you say "everything comes from the 16 magazine," do you mean the hard copy magazine? 17 A. Yes, the hard copy magazine. We make 18 nothing off the web site. 19 Q. What is the amount of your subscription 20 in dollar terms to you? 21 A. I don't readily have that information in 22 my head. I know that our circulation is around 23 65,000 per issue. 24 Q. And you sell one-year subscriptions? 25 A. One-year. We sell one-year, two-year, 183 1 Goldstein 2 three-year subscriptions. 3 Q. For how much? 4 A. $18 for a year in the United States. 5 Q. Is it your understanding that movies are 6 now capable of being transmitted over the Internet? 7 A. No. 8 Q. You don't know that. 9 A. No, it's my understanding that that's 10 not possible. 11 Q. Not possible? 12 A. At the current -- the current standing 13 in time, no, that's not possible. 14 Q. Where did you get that? What do you 15 know that causes you to say that? 16 A. Band width issues. It would take an 17 incredible amount of band width to transmit a movie 18 in any viable form. Just an incredible amount of 19 time. 20 Q. What other information do you possess 21 that leads you to the conclusion that you gave me 22 in your last answer, the answer that you gave to 23 the question I asked you? 24 A. Just knowledge of that technical ability 25 or lack thereof, and watching developments on the 184 1 Goldstein 2 Net. Transmitting of video material on the Net is, 3 if anything, in its infancy. A long way off. 4 Q. Why does the current state of band 5 widths available make it impossible to transmit 6 movies on the Internet? 7 A. Well, a movie, using a DVD as an 8 example, would be something on the order of I 9 believe 12, 13 gigabytes of data, and I don't have 10 a calculator handy, I don't know if I could do the 11 math, but most people today in certainly 12 residential situations rarely exceed a 56K modem. 13 DSL is still pretty much in its infancy, 14 especially around here. And to transmit something 15 of that size would take an incredible -- we're 16 talking days, if not weeks. And economically it 17 doesn't make any sense either. So technologically, 18 economically, it's fantasy. 19 Q. So it just doesn't happen. Movies are 20 not transmitted over the Internet. 21 A. Not that I'm aware of. 22 Q. Did you ever hear of IRC channels? 23 A. Yes. 24 Q. What are they are? 25 A. Internet relay chat. That's a way 185 1 Goldstein 2 people communicate back and forth. 3 Q. Are there movies transmitted over IRC 4 channels? 5 A. I can't imagine. I know there are some 6 Internet relay chat channels where people transmit 7 still images, you know, pictures, various pictures 8 of themselves, whatever. That's about the extent 9 of how far that's developed. I can't imagine them 10 transmitting movies over something like that. 11 MR. GARBUS: Are we talking about 12 movies that come off DVDs or camcorders or 13 any movies of any kind? I'm just not clear. 14 MR. GOLD: I asked him if any movies 15 of any kind were. 16 Q. Your answer wouldn't be different, would 17 it? 18 A. If you're talking about a 3-second 19 movie, maybe it would be a little different. I 20 assume you're talking about commercial films and I 21 have never heard of a case like that. 22 Q. Well, I am talking about movies that 23 certainly exceed an hour in duration. 24 A. My answer stands. 25 Q. Was your understanding of the current 186 1 Goldstein 2 state of technology with respect to band widths and 3 your understanding that movies are not being 4 transmitted over the Internet one of the reasons 5 you posted DeCSS? 6 MR. GARBUS: I will object to that. 7 A. No, it's not related to that. We posted 8 DeCSS as journalists. 9 Q. So is it true that you would have posted 10 DeCSS regardless of whether band widths were very 11 developed or movies were being transmitted over the 12 Internet? 13 A. It's not related to that issue. In 14 fact, it's not even related to transmitting videos 15 or copying or anything like that. 16 Q. So your answer is yes. 17 A. Yes, it's an encryption issue. 18 Q. What do you know of the current state of 19 technological improvement with respect to band 20 widths, making them available to the general public 21 at lower and lower prices? 22 MR. GARBUS: I object to the form of 23 the question. I ask the witness not to 24 speculate about things he doesn't know 25 about. 187 1 Goldstein 2 A. I know a bare minimal amount. 3 Q. Let's hear it, if we may. 4 A. Things are advancing slowly. We're 5 slowly moving into DSL. Which basically gives 6 subscribers more than 56K access, speeds 7 approaching cable modems. Still not nearly enough 8 to transmit anything as complex as a video with 9 sound. 10 Q. Who told you that? 11 A. Nobody told me this. It's common 12 knowledge. This is what I get from reading 13 magazines in this industry and basically 14 communicating with people. 15 Q. Did you read all of the affidavits 16 submitted by your counsel in this case? There were 17 about 18 or 20 of them. Most of them from alleged 18 experts. 19 A. I can't say I've read every word of all 20 of them, but I definitely read some of them. A 21 good part of them. 22 Q. Do any of them say that movies can be 23 transmitted over the Internet? 24 A. I wasn't aware of any of them saying in 25 the present movies can be transmitted over the 188 1 Goldstein 2 Internet, no. 3 Q. Do you know of any ongoing efforts right 4 now to make DSL available to whole communities at a 5 time? 6 A. No, I don't. 7 Q. Are DSLs available in every college 8 campus in the United States? 9 A. No, I don't believe DSL is marketed to 10 campuses. I think they use what is known as a T-1 11 or basically whatever the campus uses. 12 Q. Those are broadband. 13 MR. GARBUS: I object to the form of 14 the question. 15 Q. Are those broadband? 16 A. I don't believe so, no. I don't believe 17 colleges are either. 18 Q. Is cable modem available, are cable 19 modems available in Manhattan today on the Time 20 Warner cable? 21 A. I don't know about Time Warner. I know 22 RCN offers them. 23 Q. What are they as you understand it? 24 A. I can't give you an exact speed, but 25 basically they allow you access to the Internet at 189 1 Goldstein 2 higher speeds if there aren't people in your 3 immediate loop, meaning your neighbors who also 4 have cable modems. With every person that uses a 5 cable modem in your area, your speed is reduced by 6 half. 7 Q. If you have a cable modem that works, 8 can movies be transmitted on that cable modem? 9 A. It can -- it will still take a very long 10 time. 11 Q. How long? 12 A. A movie can be transmitted on a 300-baud 13 modem, but it would take a year to do it. It is 14 not practical. It makes no sense. It's completely 15 uneconomical if you're looking to save money or 16 something like that. And cable modems are not very 17 fast either. 18 Q. Are you familiar at all with what the 19 expert affidavits submitted in your behalf in this 20 case say about the amount of time it would take to 21 transfer a movie? 22 A. I don't have the number in my head. 23 Q. Or to copy a movie? 24 A. I don't have that number in my head 25 either. 190 1 Goldstein 2 Q. Do you know they said it was possible to 3 transmit and copy movies that have been decrypted? 4 MR. GARBUS: I will object to your 5 statement. If you want to show him the 6 affidavit, then I think that's the 7 appropriate -- 8 Q. Do you recall any such statement? 9 A. I don't recall that, but I would like to 10 see it. 11 Q. Do you know whether or not there are 12 hundreds of movies being transmitted between people 13 having access to IRC channels on a daily basis? 14 A. No, I never heard of a single one. 15 Q. Have you heard that there are thousands 16 of such things go on -- 17 A. No. 18 Q. -- on a daily basis? 19 You never heard of any such thing. 20 A. No. 21 Q. Does the expression "compression 22 technology" have any meaning to you? 23 A. Compression technology? It has some 24 meaning to me. 25 Q. What is that? 191 1 Goldstein 2 A. It's basically a method of compressing 3 data so that it becomes somewhat smaller and can be 4 transmitted faster. 5 Q. Well, if you have a two-hour movie do 6 you have any idea how long -- how much it can be 7 reduced by using compression technology? 8 A. My understanding is it would not be 9 significant, if at all. 10 Q. What do you mean by significant? 11 A. Anything greater than, say, 5 percent, I 12 couldn't -- I am aware that it cannot be 13 compressed. 14 Q. Who told you that? 15 A. Again, this is general knowledge. I am 16 not an engineer, so I can't point to a specific 17 source, but it's my general understanding that 18 that's not a viable means of transmitting large 19 files of that nature. 20 Q. Can you give us any clue as to where you 21 obtained this knowledge? 22 A. Again, just through general 23 conversations, reading publications. I can't point 24 to a specific source, no, I'm sorry. 25 Q. Is it true that illegal copying has 192 1 Goldstein 2 nothing to do with DeCSS? 3 A. Yes. That's true. 4 Q. What do you understand is illegal 5 copying? 6 A. Making a copy of something that you are 7 not authorized to make a copy of. 8 Q. What is your understanding of the word 9 "copy"? 10 A. To make a duplicate of. 11 Q. Is it your belief that copying a file 12 isn't the same thing as taking it? 13 MR. GARBUS: Object. 14 A. While not legal, it is different from 15 stealing, because when you steal something it is no 16 longer in the place you took it from. So yes, I do 17 believe there is a difference. 18 Q. Are there other differences? 19 A. That's the only difference I can think 20 of. 21 Q. Tell me the difference between stealing 22 a book by taking it or stealing a book by running a 23 full copy of it off and taking the copy. 24 MR. GARBUS: I object to the question. 25 I object to the witness being asked to 193 1 Goldstein 2 speculate. I think that the judge yesterday 3 had difficulty with my speculations. 4 MR. GOLD: I am not asking -- I don't 5 want the witness to speculate either. 6 MR. GARBUS: The witness is not a 7 lawyer and you should indicate, should 8 really indicate, the legal consequences -- 9 MO MR. GOLD: I think you're telling him 10 how to testify. I don't know how much I can 11 beg to stop it so we don't have these petty 12 things before the judge. 13 MR. GARBUS: I object to it. 14 A. I believe if you are copying something 15 and the original is still there, it's not as -- 16 it's not the same thing as taking the original so 17 that nobody else can access it. I am not saying it 18 is right. It is very definitely wrong., but it's 19 not the same thing. It is apples and oranges. 20 Q. I see. Thank you. 21 Do you believe that when a hacker is 22 violating the law they should be charged with 23 violating a particular law? 24 A. They should be charged with violating 25 whatever law they violated, yes. 194 1 Goldstein 2 Q. Has that charge been made against you in 3 this case, the charge that you're violating a 4 particular law? 5 A. I am not a lawyer. I can't really 6 interpret how these laws are written. 7 Q. What have you been charged with here? 8 A. I have been charged with -- my 9 understanding, a violation of the Digital 10 Millennium Copyright Act, which I believe is still 11 being interpreted in courts. 12 Q. Which violation? 13 A. I would have to look at the actual 14 charges. 15 Q. You don't remember? 16 A. Not specifically. 17 Q. Did 2600 magazine ever publish any 18 articles on DVD security systems prior to the hack 19 appearing on the Internet? 20 A. Not that I recall, no. 21 Q. When did you first learn about DeCSS? 22 A. I first learned when it was initially 23 posted and when there was some controversy 24 surrounding people being intimidated into taking 25 the material off their web sites. That's when we 195 1 Goldstein 2 started to take an interest in it. 3 Q. What do you mean when you say I learned 4 when it was posted? You saw it on the Internet? 5 A. I saw mention of it. I visited some of 6 the sites and saw what was being said about it. I 7 realized what it was about. And it became a news 8 story that we were interested in. 9 Q. Did any of the sites you visit talk 10 about copying or getting free movies? 11 A. No. 12 Q. None. 13 A. I didn't see it on any of the sites I 14 went to, no. 15 Q. How many did you go to? 16 A. At that time probably about three, four. 17 Q. Why did you stop at that, do you 18 remember? 19 A. It's basically the same thing over and 20 over again as far as mirrors of the files, 21 explanations. Once you understand what it's about, 22 there's no real need to go to other sites to get 23 the same explanation. 24 Q. That was in approximately October 1999 25 or do you have a recollection of a different date? 196 1 Goldstein 2 A. I know it was the fall. It was either 3 October or November. I don't remember specifically 4 which. 5 Q. How soon after you visited these three 6 or four sites that you just mentioned did you 7 decide to post? 8 A. As soon as we saw that people were being 9 harassed and intimidated, that became the story for 10 us, the fact that a technological development was 11 seen as a crime. It had nothing to do with 12 stealing or copying. It was basically talking 13 about encryption, and people were being scared into 14 not doing this, and that's when we realized this 15 was much bigger than just figuring out encryption. 16 This was about speech. 17 Q. How were people being intimidated? What 18 was your understanding at that time? 19 A. My understanding was letters were being 20 sent to Internet service providers that had given 21 people accounts and they were being pressured to 22 turn off those people's access. In many cases they 23 did. People were being threatened with all kinds 24 of legal action, and it really had a chilling 25 effect. 197 1 Goldstein 2 Q. So is it true that the harassment you're 3 talking about consisted of letters being sent to 4 people saying they were violating the law and 5 asking them to stop it? 6 A. It was -- I don't recall the exact 7 phrasing of the letters, but that's my 8 understanding, that it was letters being sent both 9 to them and to the people who provided them 10 Internet access and just an unprecedented amount of 11 pressure being put upon them just for talking about 12 something, just for showing people how something 13 works. 14 Q. Did you then believe that people had a 15 right to ask people to stop violating a law if they 16 believed that the law was being violated and it 17 affected them? 18 MR. GARBUS: I object to the question. 19 What he has described already, he is working 20 as a journalist writing a story. I object 21 to the question. 22 MR. GOLD: I didn't ask that question. 23 Well, he says he is a journalist many times. 24 He said he was writing a story. But I asked 25 him if he believed at the time he found out 198 1 Goldstein 2 people were getting letters asking them to 3 stop violating the law whether or not people 4 had a right to send such letters if they 5 believed they were being harmed and the law 6 was being broken. 7 MR. GARBUS: I object to it. 8 Q. Do you have an answer for that? 9 MO MR. GARBUS: I object to the question. 10 He is not a lawyer. Go ahead. 11 A. Again, I am not a lawyer, but I saw 12 those letters as intimidation tactics more than 13 simply a request, if you're violating the law, 14 please don't do that. Obviously people know not to 15 violate the law. This was something that was 16 common on the Internet, talking about technology, 17 and all of a sudden people were being told not to 18 do that and being threatened in ways they had never 19 been threatened before. And it wasn't only us. It 20 was dozens, hundreds of other Internet sites that 21 were drawn into this because of that. 22 MR. GOLD: Could you mark the 23 objection Mr. Garbus made so that we can -- 24 go back to the objection Mr. Garbus made and 25 do whatever you do so that one can find it 199 1 Goldstein 2 later right away. A list can be made of 3 everything. 4 Read my last question back to the 5 witness, please. 6 (A portion of the record was read.) 7 Q. I ask you again, do you have an answer 8 for that? 9 A. Assuming that my last answer wasn't 10 satisfactory, I will say yes, people have a right 11 to send letters if they believe the law is being 12 violated, but that's not how this was portrayed, 13 how it came across at all. 14 Q. How many of such letters have you read? 15 A. I believe it was the same letter sent to 16 many people. 17 Q. How many of such letters have you read, 18 sir? 19 A. I saw about maybe four or five of them. 20 Q. Were they all identical? 21 A. I believe they were. Again, this is 22 several months ago, last year, so I can't say for 23 sure. But I believe they were. 24 Q. Have you ever heard of a Chris Moseng, 25 M-o-s-e-n-g? 200 1 Goldstein 2 A. No. 3 Q. Have you ever heard of anyone name 4 Olegario -- let me spell it, because I don't think 5 I'm pronouncing it right -- O-l-e-g-a-r-i-o. 6 That's his is first name. His last name is Craig. 7 Have you ever heard of such a person? 8 A. No. 9 Q. Have you ever heard of Frank Stevenson? 10 A. I have heard that name, yes. 11 Q. From whom? 12 A. I just -- that's a name in the Linux 13 community. I am not specifically sure who he is, 14 but I know I have seen the name someplace. 15 Q. Do you think it's possible, do you 16 understand it's possible to transfer on the 17 Internet a 64 -- transfer a full movie such as "The 18 Matrix," on the Internet in 64 minutes? 19 A. If such a thing were possible it would 20 be very bad quality. I mean, not -- certainly not 21 anything that would be viable. 22 Q. Do you know if it's possible? 23 A. I don't know if it's possible. I don't 24 know specifics as far as that goes. 25 Q. Do you think it's possible to transmit a 201 1 Goldstein 2 50-gigabyte file in 48 minutes over the Internet? 3 MR. GARBUS: I object to the question. 4 Q. I am just asking if you know. 5 MR. GARBUS: You asked him if he 6 thought it was possible. 7 A. I don't believe with any bandwidth 8 that I have ever come in contact with, no. 9 Q. Do you know how large a typical movie is 10 in digital form after it has been compressed using 11 DIVX, D-I-V-X? 12 A. No, I am not familiar with that. 13 Q. Is it true that once a DVD movie has 14 been copied and decrypted using DeCSS it can be 15 played back from the hard disk file using a whole 16 variety of commercial software? 17 A. No. Well, it's kind of a trick question 18 because you don't need DeCSS to copy it in the 19 first place. So if you just copied the DVD 20 encrypted without using DeCSS, you could play it 21 back already on any DVD player. 22 Q. But the answer to my question was yes or 23 no? 24 MR. GARBUS: No, he gave you -- 25 Q. Or you don't know? 202 1 Goldstein 2 MR. GARBUS: He gave you a different 3 answer. He didn't say yes. He didn't say 4 he didn't know. 5 MR. GOLD: Read my question back. 6 MR. GARBUS: Go ahead, just repeat 7 your answer. 8 MR. GOLD: What are you directing him 9 to do? Just repeat his answer? 10 Could you mark that note on the last 11 statement of Mr. Garbus. 12 A. I am just trying to be clear here. I 13 don't think that point about DeCSS is relevant to 14 the question. It's like asking if it's possible on 15 a sunny day to do it. It's not relevant. You can 16 do it without DeCSS. 17 MR. GOLD: Thank you. Could you go 18 back and read my last question to the 19 witness. I will ask him to answer it. 20 (A portion of the record was read.) 21 MR. GARBUS: I object to the question. 22 It's already been asked and answered. 23 A. I am trying to answer this in a way you 24 like. 25 Q. I don't want you to do that. I want you 203 1 Goldstein 2 to answer it in a way you think it's true. 3 A. If you copy an encrypted DVD onto a hard 4 disk and you somehow have the space on the hard 5 disk for that, and you have CSS already to play it 6 back through, yes, you will be able to view it that 7 way. 8 Q. Going back to the question about your 9 posting DeCSS, how soon after you first saw it did 10 you post it? 11 A. How soon after we first saw the initial 12 posting? It would be whatever period of time went 13 by before people started being threatened plus a 14 couple of days. Because we discussed the 15 importance of it. 16 Q. Prior to the time you first posted it 17 what efforts did you make to find out whether 18 movies could be transmitted over the Internet? 19 Just list them all. 20 A. I didn't make any effort to find that 21 out. I didn't see that as anything relevant. 22 Q. Prior to the time you first posted DeCSS 23 did you make any efforts to find out if there were 24 web sites in the United States which allowed people 25 to exchange movie files? 204 1 Goldstein 2 A. No, that's not my interest. 3 Q. You made no such efforts; is that right? 4 A. No such efforts, no. 5 Q. Prior to the time you first posted DeCSS 6 did you make any effort whatsoever to contact 7 anyone that produced movies in the United States? 8 A. No. 9 Q. Have you ever used Napster? 10 A. I have played with Napster once or 11 twice, yes. 12 Q. Was that before you posted DeCSS? 13 A. Oh, no, that was way after. I don't 14 think Napster existed back then. That was a fairly 15 new development. 16 Q. Napster is a new development that 17 existed after November '99? 18 A. I believe so. 19 Q. So that would be about what? Six months 20 ago that it first existed it? 21 A. I don't know when Napster first existed. 22 Q. Do you know how many users use Napster 23 on a daily basis? 24 A. No. 25 Q. No idea? 205 1 Goldstein 2 A. No, not really. 3 Q. Do you know how many records are taken 4 down from Napster or traded, do you know how many 5 records on a daily basis are traded between Napster 6 users? 7 A. Entire records or just individual songs? 8 Q. Songs. 9 A. I can't say I know. 10 Q. Is it in the multimillions? 11 A. I have no idea. 12 Q. At all? 13 A. I really have no idea on that. 14 Q. I am not sure I asked this. I might 15 have, so I apologize. Have you ever used DeCSS to 16 decrypt a DVD movie? 17 A. No. 18 Q. Is it true that DeCSS exists and is 19 designed for the sole function of decrypting CSS 20 encoded content? 21 A. DeCSS exists to decrypt CSS, yes. 22 Q. And that's its only purpose? 23 A. As far as -- 24 Q. As far as you know. 25 A. The purpose in the greater context of 206 1 Goldstein 2 providing an open source player for a Linux 3 machine, yes. 4 Q. What do you know about how DeCSS works? 5 A. I am not an expert on that kind of 6 thing. 7 Q. So you don't know anything about it. 8 A. I really don't know the technicalities 9 at all, no. 10 Q. Is it true to your knowledge that by 11 downloading and running the object code form or 12 executable form of DeCSS utility, a user can 13 copyright a decrypted movie? Let me ask it again. 14 Is it true to your knowledge that by 15 downloading and running the object form, by which I 16 mean the executable form, of the DeCSS utility, a 17 user can create a decrypted movie? 18 A. I am not entirely sure. That's a little 19 too technical for me. 20 Q. You're saying you don't know. 21 A. I don't know. 22 Q. Is it true that after creating a 23 decrypted movie file DeCSS allows that file to be 24 copied to the user's computer hard disk? 25 MR. GARBUS: I object to the form of 207 1 Goldstein 2 the question. He said he didn't know 3 whether or not the first part of your 4 question, which was the last question, was 5 true or not. 6 Q. Do you know the answer to that question? 7 A. Again, I have never used DeCSS, so I 8 don't know these kinds of things. 9 Q. Can you describe for me the role, if 10 any, of DeCSS in reverse engineering? 11 A. Basically CSS uses the particular type 12 of encryption. DeCSS gets around that kind of 13 encryption, defeats it, basically allows you to see 14 how that encryption works or in this case doesn't 15 work to encrypt -- to encrypt the data. And in so 16 doing, a lot can be learned. 17 Q. Is that everything you know about the 18 role of DeCSS in reverse engineering? 19 A. Yes. It's a general thing, but that's 20 basically the extent of my knowledge, is very 21 general. 22 Q. Describe the role, if any, of DeCSS in 23 connection with efforts to create an open source 24 DVD player. 25 A. My understanding is that the many Linux 208 1 Goldstein 2 users of the world had long wanted a DVD player for 3 their operating system. For various reasons of 4 which I don't really know the details they were 5 unable to obtain a license for this. 6 By reverse engineering CSS, those 7 restrictions were able to be bypassed and people 8 who had legitimately obtained DVDs were able to 9 play them on their legitimately obtained computers, 10 which I had never seen to be a problem. 11 Q. Who, if anyone, is working on creating 12 the open source DVD player you just referred to? 13 A. A lot of people are. I mentioned the 14 Livid project yesterday. I know that's one group 15 of people that are doing it. I know lots of people 16 in the Linux community are working on such things. 17 Q. Do you know any names of people in the 18 Livid group who are -- 19 A. I remembered one since yesterday, 20 Matthew Pablovich. That's the only name I know. 21 Q. Did anyone in the Livid group ever try 22 to obtain a lease from DVD CCA? 23 A. No, I don't know that. 24 Q. Did you make any effort to find that 25 out? 209 1 Goldstein 2 A. I didn't ask them specifically if they 3 did that, no. 4 Q. Do you know whether or not it would have 5 been possible for them to obtain a lease? 6 A. No, I don't even know if it's even 7 possible. I assume you mean license, not lease. 8 Q. I meant licensed. Thank you. 9 A. Sure. 10 Q. Describe the role that DeCSS is 11 currently playing, if any, in cryptographic 12 research? 13 A. As I said, DeCSS allows one to study 14 encryption that was used in CSS. That's my very 15 general understanding of how it can be used to 16 study this. 17 Q. What is the relationship, if any, 18 between DeCSS and legal consumer fair use? 19 MR. GARBUS: I object to the question. 20 The witness is not a lawyer. 21 MR. GOLD: Do you have the October 30, 22 I'm sorry, the May 30th -- May 3rd 23 declaration in front of you still? 24 Q. Turn to paragraph 14 at page 5. 25 Do you understand that in paragraph 14 210 1 Goldstein 2 you refer to the role of DeCSS to aid legal 3 consumer fair use? 4 A. Uh-huh. 5 Q. Do you see that you said that? 6 A. Yes, I said that. 7 Q. What did you mean by legal consumer fair 8 use? 9 A. Again, I am not a lawyer, but I believe 10 I explained -- 11 Q. Were you a lawyer when you wrote this? 12 A. No. 13 Q. Were you a lawyer when you signed it? 14 A. I have never been a lawyer. I believe I 15 explained this yesterday though. 16 Q. I am turning to paragraph 14 and I am 17 asking you what you meant when you swore to the 18 fact that the DeCSS program can be used as an aid 19 of legal consumer fair use. 20 A. By allowing someone to view something 21 which ordinarily they would be prohibited from 22 viewing and transferring onto another medium, such 23 as a videotape, this enables consumers to make use 24 of fair use with regards to DVD. 25 For instance, if you were making a 211 1 Goldstein 2 report for your class and you wanted to include a 3 ten-second segment or a one-minute segment of 4 something that was only on DVD, you would not be 5 able to do that. On a videotape, yes, you would be 6 able to do that. From a book, yes, you would be 7 able to do that. DVDs are the first medium that 8 prohibit fair use. In my view. 9 Q. Do you know whether or not viewing an 10 entire movie constitutes fair use or has anything 11 to do with fair use? 12 MR. GARBUS: I object to the form of 13 the question. He is not a lawyer. 14 A. It's not my understanding as a nonlawyer 15 that that is covered. 16 Q. And as a nonlawyer when you talked about 17 legal consumer fair use, what specific forms of 18 fair use did you have in mind? 19 A. As I described, basically being able to 20 take a portion of something and use it in another 21 work. As has been done for however long fair use 22 has been around. 23 Q. Other than posting DeCSS did you do 24 anything else to support its existence? 25 MR. GARBUS: I object to the use of 212 1 Goldstein 2 the term "support its existence." 3 MR. GOLD: Why? 4 MR. GARBUS: I don't know what it 5 means. 6 MR. GOLD: You don't know what it 7 means? 8 MR. GARBUS: I don't know what it 9 means. I don't know what it means. 10 MR. GOLD: Did you read his affidavit 11 or did you write his affidavit? 12 MR. GARBUS: I don't know what the 13 terms in those terms mean. If you want to 14 refer to something in the affidavit, I will 15 be glad to look at it. 16 MR. GOLD: I would have thought you 17 looked at it before. 18 MR. GARBUS: Perhaps not. I didn't 19 prepare it. 20 MR. GOLD: I don't know that. 21 Q. Turning to paragraph 14 at page 5 of 22 your -- I think declaration, the second line begins 23 the sentence as follows. "However, when it was 24 posted to the Internet, I recognized the importance 25 of such a program to a variety of disciplines, 213 1 Goldstein 2 including reverse engineering an open-source DVD 3 player, cryptography and in aid of legal consumer 4 fair use." What did you mean by -- strike that. 5 The next sentence says, "I was quick to 6 show support for its existence." What did you mean 7 by support when you swore to this? 8 A. I consider support to be writing about 9 it, writing articles about it, educating people and 10 of course our eventual mirroring of the source code 11 in the program. 12 Q. Did you understand when you were doing 13 that you were helping to proliferate the DeCSS 14 code? 15 MR. GARBUS: I object to the form of 16 the question. 17 A. As I said, I saw that as support for the 18 existence of DeCSS, which I believe was covered for 19 the reasons stated. 20 Q. Was it your intent in doing the things 21 you testified to to have as many people in the 22 United States have DeCSS as was possible? 23 MR. GARBUS: I object to the form of 24 the question. He already stated he was a 25 journalist writing a story. 214 1 Goldstein 2 Q. You can answer, sir. 3 A. Initially our only intent was to draw 4 attention to the fact that these people were being 5 intimidated, that this technological development 6 had occurred, and that was the extent of it. We 7 were not going around on a crusade trying to get 8 DeCSS into everyone's home. We were basically 9 writing an interesting story and showing people 10 something that was an interesting technological 11 development. Unfortunately, that turned us into 12 the threat=. 13 Q. After initially what was your purpose in 14 posting DeCSS? 15 MR. GARBUS: I will object to it. He 16 hasn't testified it changed. 17 MO MR. GOLD: Do you want to mark that so 18 that we can get that added to the list of 19 Mr. Garbus's objections that we are focusing 20 on. 21 A. Obviously once we became the target of 22 these legal threats, our position changed in that 23 we had to defend ourselves. We had to explain our 24 position, how all of a sudden we were perceived as 25 a threat and we had nothing to do with the 215 1 Goldstein 2 development of the program in the first place. 3 So obviously our position in the whole 4 mix kind of was shifted. Instead of reporting on 5 something, we became the story, which is never 6 something that we were pursuing ourselves. I am 7 still kind of, you know, questioning why that 8 happened. 9 MR. GARBUS: Can we take our morning 10 break? 11 MR. GOLD: Sure. About ten minutes. 12 THE VIDEOGRAPHER: The time is 13 11:18 a.m. We're going off the record. 14 (A recess was taken.) 15 THE VIDEOGRAPHER: The time is 16 11:29 a.m. We're back on the record. 17 By MR. GOLD: 18 Q. Mr. Goldstein, what, if anything, would 19 have been different in the stories or editorials 20 you published on your web site if you removed from 21 them the letters "DeCSS"? 22 A. I am not sure I follow the question. 23 Q. Well, what would have been different 24 about what you were saying, what would have been 25 interpreted in a different way, if you eliminated 216 1 Goldstein 2 the letters "DeCSS"? 3 A. Do you mean the letters, the program, 4 the source code, any reference to DeCSS? 5 Q. No, not any reference. If you just took 6 those five letters out of your stories, what would 7 have been different? 8 A. I don't understand the question. 9 Q. If instead of saying "DeCSS" you 10 referred to a program which decrypted CSS and never 11 used those five letters -- 12 A. You mean not refer specifically to -- 13 Q. -- quote, DeCSS. 14 A. Uh-huh. 15 Q. Close quote. 16 A. We would have had a very general story 17 about something without any specific information, 18 which is what our readers look for, specific 19 information, you know, what is it that we're 20 talking about? Show us what you mean. And we were 21 compelled to provide our readers with that. 22 Q. Are you saying what would have been 23 different -- if I understand, tell me if I am 24 wrong, you're saying what would have been different 25 is that nobody could have picked the DeCSS code up 217 1 Goldstein 2 from your web site. 3 MR. GARBUS: Objection. That's not 4 what he said. 5 Q. Is that what you're saying or not? 6 A. If you're saying that if we had taken 7 the program off of our web site, obviously no, 8 people wouldn't have been able to get the program 9 from our web site. The story that we wrote had to 10 do with the fact that the program was already out 11 there and that people were being harassed because 12 they had it up on their site. And that's what the 13 story was about. 14 Q. Why couldn't you have said all that and 15 just not used the five letters "DeCSS" together? 16 A. Because that was the major part of the 17 story, that was what the program was called. So to 18 eliminate a major part of the story like that would 19 either be censorship or intimidation, and we don't 20 believe in either one. 21 Q. I didn't say that I was going to do it 22 or the government was going to do it. I asked you 23 what would have changed about your story -- 24 A. Well, it's self-censorship. 25 Q. -- if you decided to eliminate. 218 1 Goldstein 2 A. Right, it is self-censorship. You do it 3 for a reason. You do it because you believe you'll 4 be targeted if you don't and then you do something 5 that isn't right for the wrong reasons. As 6 journalists this is very important to us. 7 Q. Is it true or is it not true that the 8 main reason you put "DeCSS" in the stories and 9 editorials you wrote on your web site was that so 10 people could go to the web site and download DeCSS, 11 the entire program? 12 MR. GARBUS: Objection. 13 A. No, that's not the reason. If people 14 wanted to download DeCSS, there were hundreds of 15 sites they could do it from. They could go to any 16 search engine and find it that way. 17 Q. Why did you have to make it possible for 18 them to go to yours and pick it up? 19 A. Because we're a newsletter and this was 20 a bit of news that affected people who read our 21 magazine. It was of interest to people who read 22 our magazine. And we felt compelled to cover it, 23 and covering it includes giving as many details as 24 we can. 25 Q. But my question is, isn't it true if you 219 1 Goldstein 2 took out "DeCSS" the only thing that would have 3 changed is people's ability to download DeCSS from 4 your web site? 5 MR. GARBUS: Objection. That's not 6 what he said. 7 MR. GOLD: I asked him if that was 8 true. 9 A. No. It's part of the story. DeCSS is 10 part of the story. We provide our readers with 11 firsthand information, and that was information 12 that we provided them. 13 Q. When you wrote the story about DeCSS in 14 your hard copy magazine, nobody could go to that 15 magazine and pull down the code, could they? 16 A. Well, you can't really put a program in 17 a magazine like that, no. 18 Q. Do you remember writing on your web site 19 that DeCSS is a free DVD decoder that allows people 20 to copy DVDs? 21 A. No, as I said yesterday, that was not my 22 writing. 23 Q. Someone else wrote it? 24 A. Yes. 25 Q. And you identified who? 220 1 Goldstein 2 A. Our webmaster. 3 Q. And you didn't see it before it was put 4 there? 5 A. No, I saw it before, and I take 6 responsibility for it being there. 7 Q. Is it true? 8 A. No, that's inaccurate, because as I have 9 testified, that does not enable people to copy 10 DVDs. You can already copy DVDs. 11 Q. Why would you allow an inaccurate 12 statement to be published on your site? 13 A. Because in emerging technology, even we 14 don't always get the facts right, and this is one 15 particular case where we didn't understand the full 16 implications of the program at the time. 17 Q. Do you mean at the time that you 18 published this on your web site, I take it you're 19 telling me you did believe that DeCSS was a free 20 DVD decoder -- 21 MR. GARBUS: I will object. 22 Q. -- that allows people to copy DVDs; is 23 that true? 24 MR. GARBUS: I will object to it. 25 That's not what he testified. 221 1 Goldstein 2 MR. GOLD: Didn't say it was. I asked 3 him a question. 4 A. At the time my understanding was that 5 the program allowed people to view things in that 6 particular way and that with the proper type of 7 hardware and software you would be able to copy 8 certain files. But I didn't have a full 9 understanding of what the implications were. 10 At that particular point in time, the 11 main story as far as we were concerned was the fact 12 that this was technology that people were being 13 intimidated into taking off their web sites. We 14 didn't have a chance to fully explore what was 15 being done with the technology. Once we did, then 16 it became clear. 17 Q. What is simply unclear to me from your 18 statement, and I apologize for asking again, but I 19 can't understand what you're saying, so I will try 20 again. 21 A. OK. 22 Q. At the time this was published, that 23 DeCSS is a free DVD decoder that allows people to 24 copy DVDs, at the time that was published on your 25 web site, you believed that that was a true 222 1 Goldstein 2 statement, didn't you? 3 MR. GARBUS: I object to it. The 4 witness has already testified that 5 someone -- 6 MR. GOLD: I'm going to ask you not to 7 coach anymore. 8 MR. GARBUS: I'm not. I am just 9 stating the witness has already testified -- 10 MR. GOLD: OK, that's enough for your 11 objection. 12 A. I mean, I answered this question, but 13 that my understanding of how the technology worked, 14 that that's what it was about. I did not see that 15 as the issue at that point in time. 16 Q. At the time you understood the 17 technology to be that, i.e. a free DVD decoder that 18 allows people to copy DVDs, did you remove DeCSS 19 from your web site? 20 A. I don't think we had even started 21 posting it at that point. That was before. 22 Q. Are you sure? 23 A. I can't say for certain. I don't 24 remember specific dates involved. But at that 25 point we were reporting on people being intimidated 223 1 Goldstein 2 and taking it off their sites. And we didn't quite 3 understand what the program did ourselves. We just 4 knew that telling people to take down source code 5 on a web site was unprecedented. 6 Q. Did you ever publish on your web site 7 the idea that you wanted as many people as possible 8 all throughout the world to mirror the DeCSS files? 9 A. After we were targeted we did express 10 the -- for people who wanted to show support, we 11 expressed that as a valid way of showing support, 12 yes. 13 Q. Did you exhort others to mirror DeCSS in 14 order to further cryptographic research? 15 MR. GARBUS: I object to the question, 16 exhort. I don't know what you mean by that. 17 A. We told people who wanted to support us 18 that that was a valid form of expression. 19 Q. Did you do it, did you ask people to do 20 that to further cryptographic research? 21 A. We told people if they wanted to support 22 us that this was a valid way of doing it. Whatever 23 their reasons, whether it was for freedom of 24 speech, whether it was for reverse engineering, 25 cryptographic research, that was up to them. We 224 1 Goldstein 2 didn't crawl into their heads and figure out their 3 motives. We said if you wanted to support us, we 4 considered this a valid way of doing it. 5 Q. Did you exhort others to mirror the 6 DeCSS file for purposes of reverse engineering? 7 MR. GARBUS: I object to the form of 8 the question. 9 A. My previous answer I think answers 10 that word for word. 11 Q. Did you exhort others to mirror DeCSS 12 files in order to further fair use? 13 MR. GARBUS: I object to the form of 14 the question. 15 A. Again -- 16 MR. GARBUS: He's already asked and 17 answered. 18 A. -- I've already answered that. 19 Q. That's all right. You can answer it 20 again. 21 A. As I just said, we told people if they 22 wanted to support us, that whatever their 23 reasoning, whatever they felt, you know, the 24 purpose for mirroring the sites, the files, we 25 consider that a valid form of expression. 225 1 Goldstein 2 Q. So you didn't have the slightest idea of 3 what all these people would do if they downloaded 4 DeCSS or if they got DeCSS from your web site. 5 A. Are you talking about the people who 6 mirrored or the people who downloaded from the 7 mirrors? 8 Q. People who mirrored. 9 A. Well, we knew what the people who 10 mirrored were doing, they were mirroring. They 11 were simply putting the files up and explaining on 12 their web sites what the issues were about and 13 basically educating people about it. 14 Q. Did you have any idea what all of those 15 people would do with DeCSS that they now possessed? 16 MO MR. GARBUS: I will object to what they 17 now possessed. He already testified that it 18 had been up a long while before and that 19 other people had possessed it. 20 MR. GOLD: Would you mark that again, 21 please, that particular objection. 22 A. First of all, there is no indication 23 that they received the program from us, because the 24 program was all over the place. Mostly they were 25 posting opinions and facts about the case and 226 1 Goldstein 2 educating more and more people about it. Posting 3 the actual code was more of a symbolic type of a 4 thing. But actually talking about the issues was 5 what we were encouraging. That's what I think a 6 lot of people did. 7 As I mentioned yesterday -- 8 Q. How do you know who did that? 9 A. I'm sorry? 10 Q. How do you know who did that? 11 MR. GARBUS: Will you let him finish 12 his answer. 13 A. Should I finish my answer before? 14 Q. You hadn't? 15 A. I had one sentence. As I mentioned 16 yesterday, most people that I -- in fact, I don't 17 know anybody who has actually used the program. So 18 I can't testify as to what people did with the 19 program. I am not aware of anyone ever using the 20 program. 21 This became a story that was of great 22 interest to people in the community. And that's 23 what we were trying to, um to have people become 24 educated on this, basically talking about the 25 issues and why they were important to them and we 227 1 Goldstein 2 encouraged people to think about them. 3 Q. When you did post DeCSS and at present 4 when you're linking to other sites that post DeCSS, 5 is it true that any member of the general public 6 with Internet access can take it and download 7 DeCSS? 8 A. Yes, it is. 9 Q. Who removed the posting of DeCSS after 10 the January 20 injunction? 11 A. Who physically moved the files? I 12 believe it was both myself and my webmaster. I 13 think my webmaster is the one who actually hit the 14 keys, if that's what you're after. 15 Q. You're currently linking to other sites 16 that post DeCSS? 17 A. We have a list of links to other sites 18 that still have the files up, yes. 19 Q. In order to transmit DeCSS to as many 20 people throughout the world as possible, does it 21 make any difference whether you post DeCSS or link 22 it to others who post DeCSS? 23 MR. GARBUS: I object to the form of 24 the question. How does he know that? 25 MR. GOLD: We'll find out. 228 1 Goldstein 2 A. It's not something that I really know 3 the efficiency of how, how to best get a file out. 4 I would imagine we're not doing it in the most 5 efficient way possible, which I think is further 6 testament to the fact that we're not in the 7 business of distributing this file. We're 8 basically trying to get information out about it 9 and to spread education. 10 Q. If somebody takes or downloads DeCSS 11 from someone who is posting it, how do they do 12 that? Describe it to me. 13 A. There are a number of different ways. 14 On the web they could click on a link, on that 15 other person's site, which would start a download 16 to their hard drive. 17 You could also use a method known as 18 FTP, where you basically open a connection and then 19 specify the file you want to download. It 20 basically involves downloading however many files 21 are there. 22 Q. One of the ways that anyone can download 23 DeCSS from someone who is posting it is just to put 24 his mouse on the DeCSS and click once? 25 A. Usually you have to click twice to 229 1 Goldstein 2 indicate where in the hard disk you want to put it, 3 but that's close to what you have to do, yes. 4 Q. He clicks twice. 5 A. You have to go to the site. You have to 6 select the file. You have to tell your computer 7 where to put the file. I think you might have to 8 verify after that as well. 9 Q. If a person wants to download DeCSS and 10 he goes first to someone who's linking to a site 11 that posts DeCSS, what does he have to do? 12 A. Do you mean a site such as ours? 13 Q. Yes. 14 A. There's an additional step in that he 15 would have to go to the page that has a list of 16 other sites that have that information. He would 17 have to physically himself go to that site and 18 then -- 19 Q. By clicking on? 20 A. By clicking on the link, then his 21 computer executes a command to go to a different 22 site. And at that point it's out of our site and 23 he does whatever that site -- he follows whatever 24 instructions are on that site or he looks at 25 whatever information is on that site. 230 1 Goldstein 2 Q. But if that site simply has DeCSS up on 3 its first page, or the link will go to the first 4 page and all that person would have to do is click 5 on the DeCSS, right? 6 A. However their site is laid out. He 7 would have to click however many times they specify 8 on that particular site if the file was even there. 9 If it's on a different page, he might have to click 10 a few more files. Basically what the list of links 11 is is a list of sites where he can find information 12 or the actual program. 13 Q. So it's pretty simple, is it, to 14 download DeCSS if one starts with your site which 15 links to other sites that post them? 16 MR. GARBUS: Object to the form of the 17 question. 18 A. I consider it to be pretty simple no 19 matter what site you go to. You can go to Yahoo or 20 Alta Vista and find it just as easily. So to me 21 it's an easy thing. I don't know. I can't put 22 myself in the heads of other people. 23 Q. Is Yahoo now linking to sites that post 24 DeCSS? 25 A. Well, yes, if you type DeCSS into a 231 1 Goldstein 2 search engine, you will get links to all the sites 3 that have then, so yes. 4 Q. When you posted DeCSS was it in object 5 code form? 6 A. I can't really say. That's a technical 7 thing. Because I have never actually examined the 8 files myself. I never had occasion to -- 9 Q. So you have no idea? 10 A. I am not sure what format they are in, 11 no. 12 Q. With respect to the sites you're now 13 linking to, are those sites all carrying DeCSS in 14 object form? 15 A. I can't say what's on each of those 16 sites. 17 Q. What about what's on any of them? 18 A. I know it's in source code form, object 19 code form, Different formats. But there's no way I 20 can swear to what every single site has. There are 21 different sites. Some of them have changed. 22 MR. GARBUS: Mr. Gold, if you leave a 23 space certainly he can find out what it is 24 on his site and he can tell you that. 25 THE WITNESS: No, I can't. It's not 232 1 Goldstein 2 on my site anymore. 3 MR. GARBUS: Well, when it was on your 4 site could you find it? 5 THE WITNESS: I don't know how. It's 6 not there. 7 MR. GARBUS: My attempt to be helpful 8 was a failure. 9 Q. What is object code? 10 A. I imagine it's -- 11 Q. Do you know? 12 A. It's -- I am not really -- 13 Q. If you don't know, tell me you don't 14 know. 15 A. I feel like an idiot, but I don't really 16 know specifically how to define it. 17 MR. GARBUS: Don't be an idiot and 18 don't speculate. 19 A. The source code. 20 Q. Is it true that you don't know what 21 source code is? 22 A. I know what source code is. It's 23 basically the printed -- the printed words involved 24 in a computer program that later get compiled into 25 an actual program. 233 1 Goldstein 2 So basically the source code is the meat 3 of the whole thing. That's where you can analyze 4 what the program does, how it does it, think of 5 better ways for it to work more efficiently, and 6 learn from it that way. 7 Q. How if you know does object code differ 8 from that? 9 A. I am not familiar with object code. I 10 am not a computer programmer. 11 Q. Would object code of DeCSS be helpful to 12 a cryptographer? 13 A. I imagine any form would be helpful to 14 someone who knew what they were talking about. 15 Q. Is it true that any member of the 16 general public with Internet access could prior to 17 January 20 access 2600.com and directly download 18 DeCSS? 19 A. If it was after when we put it up and 20 before when we took it down, yes. 21 Q. Before the injunction. 22 A. Yes, anyone who could access our site 23 would be able to download it. 24 Q. How will knowledge gained from DeCSS 25 allow future programs to develop better DVD 234 1 Goldstein 2 players, if you know? 3 A. Well, as -- my opinion on the matter is 4 that it would for one thing enable you to develop 5 better encryption so that this kind of thing 6 doesn't happen again or so that it takes longer for 7 it to happen again. 8 Q. How will the knowledge gained from DeCSS 9 allow future programmers to fast forward through 10 commercials or to the part of the movie they want 11 to see? 12 A. I'm sorry, give me the first part of the 13 question. 14 Q. Yes. 15 MR. GOLD: Could you read the question 16 back. 17 (A portion of the record was read.) 18 A. By understanding the access controls 19 that are contained within CSS, by understanding 20 that and figuring out ways to bypass them or change 21 them, one can get around those playback controls, 22 playback controls being the things that control how 23 you view the film. Not whether you can view the 24 film, but how you view it. 25 MR. GARBUS: May I hear the answer, 235 1 Goldstein 2 Mr. Gold? 3 MR. GOLD: Of course. 4 (A portion of the record was read.) 5 Q. Do you know what a temporary RAM copy of 6 a movie is? 7 A. Not specifically, no. 8 Q. Do you know how it differs, if at all, 9 from a copy that is made to a permanent computer 10 file? 11 A. I can only speculate. 12 Q. I prefer you give us only your 13 knowledge. 14 MR. GARBUS: Don't speculate. 15 Q. Did you ever advise visitors to the 2600 16 web site that they shouldn't take DeCSS if they 17 just want to copy a DVD? 18 A. Yes, I believe that was around the same 19 time where we thought that there was some 20 relationship between DeCSS and copying. So that 21 statement could very well have appeared on our 22 site. 23 Q. Did you change the statement when you 24 thought you learned something different from 25 copying movies? 236 1 Goldstein 2 A. No, it's our view that a news story, if 3 it makes a mistake, the mistake lives with the 4 story and we just move on from there. We don't try 5 and rewrite the past. 6 Q. Are you serious? 7 A. We wrote it back then. For us to go 8 back and rewrite it with the date from the past I 9 think would be dishonest. 10 Q. Why did you advise visitors to your site 11 not to download DeCSS if they just wanted to copy a 12 DVD? Why did you give them that advice? 13 A. Well, with the knowledge we had at the 14 time -- 15 Q. Yes. 16 A. -- we wanted to make sure that people 17 were following this for the right reasons. 18 Basically that this was a discussion about 19 technology, about how a particular form of 20 encryption worked, about reverse engineering. And 21 that was the real issue. It wasn't about, you 22 know, what you could get for free or, you know, how 23 much you could get away with. That's not what 24 we're about. We're about education. We wanted to 25 make sure that that's why people took an interest 237 1 Goldstein 2 in this. 3 Obviously we can't control what people 4 do. But we wanted to make it clear where we were 5 coming from on this. 6 Q. Can you control what you do? 7 A. Oh, certainly. 8 Q. Well, then why did you stop saying don't 9 take down, don't download DeCSS if all you want to 10 do is copy a DVD? Why would you have changed that? 11 A. Well, we changed it when we realized it 12 had nothing to do with copying DVDs. So it became 13 kind of pointless for us to continue saying that. 14 Q. Did you believe it would have been 15 illegal to make a copy when you wrote, when you 16 were advising people not to take DeCSS if all they 17 wanted to do was copy the movie? 18 A. Again, I am not a lawyer. I don't know 19 the specific laws, but certainly I would consider 20 it to be illegal and immoral at the very least to 21 copy anything that's not yours. 22 Q. Was one reason that you advised viewers 23 not to take DeCSS if they wanted to make a copy of 24 it, the movie, the fact that you believed it would 25 have been illegal, so you wanted to tell them that? 238 1 Goldstein 2 MR. GARBUS: Objection. 3 Q. That either was a reason that you had or 4 it wasn't. 5 A. That was a concern. 6 Q. It was a concern. 7 A. Definitely would have been a concern if 8 we thought it was illegal, yes. 9 Q. Who told you that you couldn't copy a 10 movie if you downloaded DeCSS? 11 A. After the story became a little bit more 12 well established, numerous people -- 13 Q. You can't name any of them? 14 A. I didn't write down people's names. 15 MR. GARBUS: I don't think he finished 16 his answer. 17 A. Basically these are the people that we 18 saw at conferences, at 2600 meetings, people who 19 had called up the radio show or sent us random bits 20 of E-mail. It just became general knowledge that 21 that's what this program did and it didn't do this. 22 And once we understood more, how the 23 technology worked ourselves, we were able to get it 24 right. 25 Q. Did you ever consult any expert or 239 1 Goldstein 2 someone you recognized as an expert to find out if 3 you could copy a movie once you downloaded DeCSS? 4 A. I talked with people starting with I 5 believe the early part of this year. I think at 6 the Linux Expo earlier this year I talked to a 7 number of people at a panel discussion. 8 In fact, I remember at the panel 9 discussion I even asked one of the lawyers there 10 who had helped write the Digital Millennium 11 Copyright Act if there were any cases of DeCSS 12 being used to copy files. He wasn't able to name 13 any. 14 Q. I assume you can't remember the name of 15 either one of those people. 16 A. I am not good with names. 17 Unfortunately. 18 Q. What about Internet names like Zerb or 19 Blip or Blup or Fluff or things like that? 20 A. No. 21 Q. You can't even remember one by its 22 Internet name. 23 A. See, this is just a general widely 24 accepted view that this cannot be done. I don't 25 remember specifically who first told me. It's just 240 1 Goldstein 2 something that everybody knows. 3 Q. Is it the view of the experts in this 4 case who have submitted affidavits on your behalf? 5 A. Yes. 6 Q. How do you know that? 7 A. Well, I mean, I -- 8 Q. Why do you say it is? 9 A. Even without looking at it -- 10 Q. You didn't read the affidavit and you 11 didn't talk to them about it. 12 A. I didn't talk to them personally. 13 Q. And you didn't read the affidavit. 14 MR. GARBUS: I think he said that he 15 read some of it -- 16 A. Yeah, I glanced at affidavits. I am 17 not sure exactly what parts I missed. But the 18 overwhelming prevailing view is that it's simply 19 not possible. This is not a copying mechanism. 20 MR. GOLD: Let's mark this as 21 Exhibit 6. 22 (Plaintiffs' Exhibit 6, series of 23 documents on web sites and web listings, 24 marked for identification, as of this date.) 25 Q. Mr. Goldstein, what is the first page of 241 1 Goldstein 2 Exhibit 6? I only asked you about the first page. 3 A. I am not sure what you asked me. 4 Q. What is it? 5 A. This looks like another web site that 6 mirrored the file or had a list of sites 7 themselves. 8 Q. Do you know if they were replying to 9 your exhortation to help with respect to DeCSS? 10 MR. GARBUS: I object to the form of 11 the question. He didn't -- that was not his 12 testimony. 13 MR. GOLD: I asked him if he knew 14 whether this web site published this 15 document because of his request for help in 16 the fight against the movie companies. 17 MR. GARBUS: I object to the form of 18 the question. 19 A. We encourage people to express 20 themselves and this is an example of someone 21 expressing themselves in ways that we would 22 certainly not sanction, or not support, rather. 23 Because I think it's rather immature. I think a 24 lot of the facts are wrong and it just goes to show 25 that you cannot control what people say on the Net. 242 1 Goldstein 2 Lots of times things aren't entirely right. So 3 this is not a fair representation of any position 4 that we hold. 5 Q. Well, it did result from your exhorting 6 other web sites to help. 7 A. I don't think we exhorted. 8 MR. GARBUS: Object to the form of the 9 question. 10 A. We basically explained to people how 11 they can express themselves as well if they so 12 chose. And this is an example of somebody -- this 13 didn't help us in any way. This is somebody 14 expressing themselves in an immature way. We can't 15 control it. It hurts us as well as it helps us. 16 We just explained to someone how they can do it. 17 Q. Didn't it help you that they were 18 posting DeCSS? 19 A. No. 20 MR. GARBUS: I'll object to it. 21 Q. Can you tell they were posting DeCSS 22 from what is on page 1? 23 Why are you flipping? I'd rather you 24 didn't. 25 A. I'm sorry. 243 1 Goldstein 2 Q. And stay with the first page so you can 3 concentrate a bit? 4 A. OK, on the top I see a link, but again, 5 this is text. I have no idea if that's a real link 6 or just something that went somewhere else. 7 Q. Have you ever seen this site? 8 A. I am not familiar with this site, no. 9 Q. Now, when it says after number 3, "The 10 Men Behind The Madness, 2600.com," what does that 11 mean? 12 A. I guess that's their view of us. "The 13 men behind the madness" is not a view I share. But 14 that's their perception and it's their right to say 15 it. 16 Q. I think the second sentence reads, 17 quote, "Oh yeah and if you bitches (government)(DVD 18 ho's)(Feds) can't get the right facts, just don't 19 say anything you dumbasses, period." 20 What did "DVD ho's" mean, h-o apostrophe 21 s? 22 A. Without the help of anthropologists, I 23 don't think I can really interpret this. 24 Q. The last line, "DON'T FUCKING COMPLAIN, 25 YOU FUCKING DESERVE IT, YOU RICH FUCKING SNOBS," 244 1 Goldstein 2 that refers to who? 3 MR. GARBUS: I will object to it. It 4 speaks for itself. From reading it I can't 5 tell who it refers to. 6 A. I have no idea who this person is 7 talking to. I mean, it's -- I don't see how I can 8 interpret something that I am completely unfamiliar 9 with as far as where it comes from or what they're 10 trying to say. I get a vague sense that they -- 11 they are trying to support us, but just not doing a 12 very good job of it in my view, but I am not going 13 to interpret what they meant. 14 Q. Did you make any effort whatsoever to 15 isolate your transmission of DeCSS to sites that 16 were involved with education or fair use or 17 cryptography? 18 A. Do you mean control who got to our site 19 and download the file? 20 Q. Control who got 2600, who got DeCSS from 21 2600. 22 A. We don't have controls like that for 23 anything we do. Anybody is free to read our web 24 site. We don't ask who is reading our web site. 25 We don't keep track of the people doing it. We 245 1 Goldstein 2 don't ask their motives, so no. 3 Q. Is it true that when you posted DeCSS 4 you knew in fact that all sorts of people who had 5 nothing to do with education or fair use or 6 cryptography or reverse engineering would download 7 it from your site? 8 A. If they so chose. 9 Q. You knew that. 10 A. I didn't know they would do it, but I 11 knew it was possible, certainly. 12 Q. Didn't you believe it was far more 13 possible that people who had nothing to do with 14 cryptography or fair use would download it since 15 there was ever so much more of them than they are 16 of those who are involved in education and 17 cryptography? 18 A. No, I had no reason to jump to that 19 conclusion. 20 Q. Wasn't that common sense? 21 MR. GARBUS: Objection. It's not 22 common sense. 23 MO MR. GOLD: Do you want to mark that too, 24 please. 25 A. I believe the people that would download 246 1 Goldstein 2 these files were people who were interested in the 3 technology. And as I have already said, it's not a 4 method for copying DVDs, so you would have to know 5 something of what you're doing in order to even 6 make use of these files. So while people may have 7 downloaded it, I don't think they understood it or 8 got anything out of it other than clicking on 9 something. 10 MR. GOLD: Martin, I tried to avoid 11 this, but since there will be many more of 12 your witnesses who will be testifying in the 13 next two weeks, I am going to have to bring 14 this up with the court, I believe. I will 15 review it when I get it, but I think you're 16 doing something that's uniquely improper. I 17 know you disagree and I really didn't want 18 to bother the court with it. I pleaded with 19 you to stop, but I guess it has to be. I'll 20 review it. 21 Q. In any event, after reading page 1 of 22 Exhibit 6, would you say that this web site or the 23 persons connected with this web site were involved 24 in any educational purpose with respect to DeCSS or 25 cryptography or -- 247 1 Goldstein 2 A. It's impossible for me to assess the 3 knowledge of the people behind this. For all I 4 know, these are, you know, educated people writing 5 things just to be funny. But my initial view is 6 that it's immature people that don't really know 7 the facts. They just want to do some posturing. 8 Q. Well, then, do you believe these people 9 may well be cryptographers? 10 A. It's impossible for me to say. 11 Q. You don't know whether they are or not? 12 A. No, how could I say? It's text on a 13 page. 14 Q. Do you know any cryptographers? 15 A. I know some, yes. 16 Q. Any like this? 17 MR. GARBUS: Objection. 18 A. Any like this? Not that I have ever 19 seen, no. 20 Q. But that doesn't give you any clue with 21 respect to these people. 22 A. I have no idea who these people are. 23 That's what I am trying to say. 24 Q. Turning to page 3 of that exhibit, the 25 third page, they are not numbered, it's the one 248 1 Goldstein 2 that begins, and I quote, fuck the system, close 3 quote. Do you have it? 4 A. I do. 5 Q. What web site is this? 6 A. I am not sure. 7 Q. Can you tell by looking? 8 A. Actually, it's a different site than the 9 one we were just looking at. Cyberarmy.com, 10 according to the URL at the bottom of the page. 11 Q. Did you ever see this page before? 12 A. I don't recognize it, no. 13 Q. Near the end of the text the following 14 sentence appears. "Sites like this one are going 15 up by the minute." Close quote. Is that true? 16 Were they? 17 A. A lot of sites went up. I don't know if 18 it was by the minute. I don't know how many 19 exactly. We eventually had to stop putting them up 20 ourselves because we just didn't have the manpower 21 to be constantly adding sites. 22 Q. You don't know anyone connected with 23 this site? 24 A. No. 25 Q. Did you say you didn't think you had 249 1 Goldstein 2 seen it before? 3 A. I don't think so, no. 4 Q. Was it attached to your affidavit, do 5 you know? 6 A. No, I don't recall seeing that before. 7 Q. Now, this particular document taken from 8 the web site that you mentioned contains about 18 9 pages. What do you understand pages 2 through 18 10 to be? 11 A. It looks like a list of sites that also 12 have DeCSS on them. 13 Q. Do you believe the site from which this 14 document comes was trying to promote cryptography? 15 A. I can't really testify to their motives. 16 Just by reading these few words here. I see some 17 factual misconceptions. I see some things that are 18 accurate. It's impossible for me to say what the 19 motivation of the people behind this is. 20 Q. Well, do the words forming the title of 21 this message, "fuck the system," give you any view 22 as to or any clue as to what the motive was? 23 A. I think it would be wrong for me to 24 judge without any further information as to what 25 these people are saying. How do you define what 250 1 Goldstein 2 system is it they are talking about? Maybe they 3 are talking about a computer operating system. Who 4 knows? I think it would be wrong for me to jump to 5 conclusions. 6 MR. GARBUS: Can I ask you a question, 7 Mr. Gold? The date on this is March 23rd. 8 At least that seems to be the date on the 9 bottom of this. Do you know where these 10 documents came from? 11 MR. GOLD: Yes. 12 MR. GARBUS: OK. Would you care to 13 tell us? 14 MR. GOLD: No. 15 Q. Turning to the document in Exhibit 6 16 that follows the 18-page document, -- 17 A. "Technomancers of Dark Technology"? 18 Q. That's it. What site does that appear 19 to come from? 20 A. According to this, it says 21 "isupport2600.8m.com. Actually, the site would be 22 just the latter part of that, 8m.com. And they 23 named the machine. 24 Q. Are you familiar with the site? 25 A. No. 251 1 Goldstein 2 Q. Or the people involved with the site? 3 A. No, I don't recognize any names, no. 4 Q. Looking at the page, can you tell 5 whether this is a response to your message to other 6 web sites to help in the fight against the motion 7 picture companies? 8 MR. GARBUS: I object to the form of 9 the question. 10 A. It's a response. I don't know if it's a 11 response because of us, because it says 2600 and 12 all of the computer users. It could be a response 13 to any of the other sites that had links up. 14 I can't even say for sure that the links 15 were here, because all it says is "files can be 16 found here." But there is no indication that the 17 files actually were there. 18 Q. Is there a clue in the words, quote, 19 support 2600 in the DVD encryption dispute, close 20 quote? 21 A. Yes. 22 Q. What clue? 23 A. Well, support 2600 obviously means 24 they support us. It doesn't mean it's a response 25 to something we said. They could have gotten this 252 1 Goldstein 2 from someone else as well. 3 Q. Is it true that your site only links to 4 sites which have furnished you with their URL? 5 A. Yes. 6 MR. GARBUS: Can I hear the question 7 again? 8 (A portion of the record was read.) 9 Q. Is it true that those sites which have 10 posted DeCSS or mirrored your site containing DeCSS 11 that in fact supplied you with their URLs did so to 12 enable 2600 to link with them? 13 MR. GARBUS: Object to the form of the 14 question. 15 A. Not necessarily. Lots of sites existed 16 already and in fact, our mirror, our list of 17 mirrors was not the biggest out there. There were 18 other such lists. And sometimes what we would do 19 is simply look at the other list and copy some of 20 those ones. 21 So actually, I have to correct myself. 22 It wasn't always submitted to us. Sometimes we 23 went out and saw another site that had more links 24 and just added to our list. 25 Q. When you saw the other sites that you 253 1 Goldstein 2 added to your list of sites you were linking to, 3 did you read them and see what they said? 4 A. All we did was very quickly, and 5 actually, we had a few people do this because there 6 were just so many of them, just quickly go through 7 and see if in fact they were links to the files 8 there, because that's what we were representing 9 them as, as links to DeCSS. 10 Q. The text would have been irrelevant. 11 A. The text was not something we focused on 12 only because there was so much of it. 13 Q. I don't know what that means, I didn't 14 focus on it. Did you not totally ignore it? 15 MR. GARBUS: Objection. 16 A. We didn't tell people to go and ignore 17 it. But basically what we told the people who were 18 helping us was, are the files there? If so, we add 19 it. Because we had to go through hundreds of sites 20 in a relatively short period of time. 21 Q. Is there any difference between that and 22 ignoring the text on the site? 23 MR. GARBUS: I object to the form of 24 the question. It's argumentative. 25 A. Only that we didn't tell people to 254 1 Goldstein 2 ignore it. We told people to tell us if the site, 3 if the file was there. So, no, we didn't tell 4 people to ignore it. Did they ignore it to find 5 the file? Perhaps. 6 Q. So that I gather, those people who you 7 instructed in the way you just testified to would 8 have included the site even if the site talked 9 about copying the movie? 10 A. It's possible. 11 Q. You wouldn't -- 12 A. It's possible. We didn't proofread 13 other people's sites. 14 Q. When you encouraged people to download 15 DeCSS, did you regard that as a journalistic 16 function? 17 A. Well, I think we encouraged people to 18 download. 19 MR. GARBUS: Object to the form of the 20 question. 21 A. To download DeCSS. We had it there for 22 people who were interested in it and we had a story 23 about it. We didn't tell people to download it who 24 had no interest in it obviously. 25 Q. Were you linking to any sites before the 255 1 Goldstein 2 court issued its injunction? 3 A. We initially started by linking to sites 4 back in the fall. 5 Q. How many is that? 6 A. I can't recall specifically how many. 7 Q. So you say you started by linking in the 8 fall of '99. 9 A. Uh-huh. 10 Q. Thereafter did you stop and solely post? 11 A. We started -- my recollection is we 12 started by linking. And then as those sites were 13 threatened, we became a link ourselves by posting 14 the program on our site. And then there was no 15 need to -- we might have still kept up a list of 16 links in addition to that. 17 Q. But you don't know that. 18 A. I don't know for sure. I would have to 19 look at the records. 20 MR. GARBUS: Leave a space in the 21 deposition. We'll get you an answer. 22 MR. GOLD: The problem with that is I 23 don't know whose answer. 24 MR. GARBUS: We'll tell you. 25 A. It's also on the web site. As I said, 256 1 Goldstein 2 we keep our pages up except for when courts tell us 3 to take them down. But it's all there the way it 4 was. 5 Q. Did you increase your linking after the 6 court injunction? 7 A. We didn't increase so much as more sites 8 were submitted to us and more sites popped up and 9 it became, you know, it just kind of got out of 10 hand actually, because we couldn't handle the 11 number that were coming to us. 12 Q. How many did you put up that you linked 13 to yourself? 14 A. Me personally? 15 Q. Anybody at 2600. 16 A. It would have to be over a hundred, and 17 this is within a few days of the injunction. 18 Q. So it's over a hundred links that you 19 yourself put up. 20 A. That I was aware of. I don't know how 21 many specific -- 22 Q. That was right after the court's 23 injunction? 24 A. Yes. I believe it was -- 25 Q. Why? 257 1 Goldstein 2 A. -- the day of or the day after. 3 Q. Why? 4 A. It was basically a reaction that various 5 people in the community had. 6 Q. A reaction to the -- I am talking about 7 you. You put up a hundred. What reaction did you 8 have to the court injunction that caused you to do 9 that? 10 A. Our immediate reaction to the court 11 injunction was to take the files down. We had 12 already had, I believe, links to other sites, and 13 when we started getting massive submissions, we 14 realized that we had to post those as well as part 15 of the story, because that was becoming a part of 16 the story. 17 Q. Now, you testified I believe that 2600 18 itself decided to link to over a hundred sites 19 pretty soon after the court injunction. 20 A. Uh-huh. 21 Q. Why? 22 A. Because as I said, that became the 23 story. The fact that all these other sites were 24 popping up and that this was something that simply 25 wasn't going to go away, that became part of the 258 1 Goldstein 2 story and we had to show what was going on. That 3 was a very major part. 4 Q. Under oath I am asking you didn't you do 5 the linking of those one hundred sites because you 6 were showing the court, well, if you think you can 7 stop us, you can't? 8 A. No, that was not the -- 9 Q. Not at all. 10 A. That was not our rationale behind it. 11 The rationale was that this is a program that is 12 out there. We followed the injunction to the 13 letter. In fact, the court even addressed the 14 issue of linking and found that it was a different 15 issue and did not rule on it. So we took that to 16 mean that it was a different issue. And that 17 linking was perfectly OK. 18 And if we were going to be shut down, 19 you know, we were going to be told not to link, 20 then obviously all the other sites that were 21 linking, including Yahoo and Alta Vista, would have 22 to be told the same thing. 23 Q. Did you have a conversation with any 24 lawyer -- 25 A. Yes. 259 1 Goldstein 2 Q. -- before you linked? 3 A. Um -- 4 Q. After the court issued its injunction. 5 A. We had conversations with lawyers at 6 that time. 7 Q. Don't tell me what they were. Could you 8 name who they were? 9 A. Allon Levy, Robin Gross, the Electronic 10 Frontier Foundation in California. 11 MR. GOLD: Before you switch, Martin, 12 you told me you wanted to break at 12:30. 13 We said yes, if that's when you want to 14 break. And you have also kindly volunteered 15 to try to finish tonight even if we have to 16 stay a little late. 17 MR. GARBUS: Yes. 18 MR. GOLD: I can't tell if it will or 19 not. 20 THE VIDEOGRAPHER: The time is 12:26 21 p.m. and this completes tape number 3 of the 22 videotape deposition of Mr. Emmanuel 23 Goldstein. 24 (A luncheon recess was taken at 25 12:26 p.m.) 260 1 Goldstein 2 A F T E R N O O N S E S S I O N 3 (Time noted: 2:06 p.m.) 4 THE VIDEOGRAPHER: The time is 2:06 5 p.m. and this begins tape number 4 of the 6 videotape deposition of Mr. Emmanuel 7 Goldstein. 8 E M M A N U E L G O L D S T E I N , resumed and 9 testified as follows: 10 EXAMINATION BY (Cont'd.) 11 MR. GOLD: 12 Q. Mr. Goldstein, do I understand correctly 13 that your testimony was that you were posting and 14 later linking to other sites that were posting 15 DeCSS because that posting and that linking was a 16 part of your journalistic story? 17 A. That was part of the story, yes, that's 18 correct. 19 Q. When did you write the story? 20 A. Well, the initial story was written I 21 believe it was early November on our site, and that 22 was the story that described the development which 23 at the time we were -- we had only sketchy details 24 about. We reported what we knew. And then later 25 we became part of the story, and that's when we 261 1 Goldstein 2 started writing a lot more about it. 3 Q. You didn't write about it every day, did 4 you? 5 A. No. 6 Q. How long were you posting? 7 A. I'm sorry, how long what? Was I 8 posting? 9 Q. Posting DeCSS on the 2600. 10 A. I think we first posted it in late 11 November. 12 Q. And you posted it late November right up 13 until the court injunction? 14 A. Yes. As soon as the court injunction 15 happened, I believe it was January 20th, that's 16 when we took it down. 17 Q. So you were posting for close to two 18 months. 19 A. Yes. 20 Q. 24 hours a day. 21 A. Well, it's just up. Yes. 22 MR. GARBUS: Can I hear the end of it? 23 (A portion of the record was read.) 24 Q. Can you tell me why that posting for two 25 months every day 24 hours a day was necessary to 262 1 Goldstein 2 your story? 3 A. Well, it's -- 4 MR. GARBUS: I will object to it. 5 A. Every story on our site is up 24 hours a 6 day constantly until the end of time. So it's not 7 like we were sitting there saying, you know, it's 8 up 24 hours day and night. It was a story and 9 people continued to have an interest in that story, 10 and that interest continues till today. 11 Q. Can you tell us why posting every day 12 was necessary for the story? 13 A. Well, as I've said -- 14 MR. GARBUS: Objection. 15 A. -- we did not post it every day. We 16 posted it once and it stayed up. 17 Q. You didn't take it down, did you? 18 A. No. It's one action, posting it. We 19 took it down when we were ordered to take it down. 20 Q. Yes, but you could have taken it down 21 any day within that two-month period, couldn't you 22 have, if you wanted to? 23 A. If we wanted to, yes, but we didn't take 24 it down. 25 Q. Why not? 263 1 Goldstein 2 A. Because we felt it was right to have it 3 on our site. We felt it was part of the story. 4 Q. But I am trying to understand why the 5 words "DeCSS" on your site for two months was 6 necessary to the story. 7 A. Because that is what the story centers 8 around. For instance, if the story centered around 9 the picture, we'd show the picture. And this was 10 the picture. This was the story that everybody was 11 focused on. To take it down without a court order 12 would have been wrong in a journalistic sense. 13 Q. But you weren't writing a new story 14 about DeCSS every day, were you? 15 A. No, and we didn't post it every day. We 16 posted it once. 17 Q. And you didn't take it down for two 18 months, right? 19 A. We didn't take anything down. 20 MR. GARBUS: Objection. Asked and 21 answered. 22 Q. How long have you been linking to other 23 sites that post DeCSS? 24 A. As I said earlier, I believe we had 25 links up from the beginning. That is, before we 264 1 Goldstein 2 even had it up on our site. I would have to check 3 to make absolutely certain about that, but the vast 4 majority of links started coming into us after the 5 injunction was granted. 6 Q. And you have been linking to many other 7 sites posting DeCSS ever since? 8 A. We posted the list of what we had 9 received, and this went on for I think a few weeks 10 until we just got overwhelmed with it, and we had 11 to do other things, so we stopped updating it. 12 Q. So you have been linking to many other 13 sites containing DeCSS for about five months at 14 least? 15 A. I would say that's about right, yes. 16 Q. Every day. 17 A. Well, as I said, we don't take things 18 down. 19 Q. That's because you decide not to, I 20 gather. 21 A. Uh-huh. 22 Q. Why was linking to over a hundred or 23 more sites that post DeCSS necessary to your 24 journalistic story? 25 MR. GARBUS: Objection. 265 1 Goldstein 2 A. Because that was part of the story. The 3 story was that hundreds of sites were springing up 4 and showing support in various ways, all of which 5 had one thing in common, that they were posting the 6 source of this program, and we thought that was the 7 story right there. That was something that 8 deserved attention, to show just how many people 9 were out there and what they were doing. 10 Q. And it was necessary to the story to 11 show that every day for five months? 12 A. It was the story. And the stories stay 13 up. So the story will be up forever. Until -- 14 Q. I see. 15 A. That's how it works. 16 Q. Well, is it true that every story you 17 write in your magazine is vibrant and alive every 18 single day for the rest of eternity? 19 MR. GARBUS: Objection. 20 Q. Or just your life? 21 A. Are you referring to the magazine or to 22 the web site? 23 Q. Web site. 24 A. I wouldn't say that they all keep 25 interest as long as this one has, no. 266 1 Goldstein 2 Q. But if you didn't write a story every 3 day about DeCSS, why would you have to keep linking 4 to DeCSS every day 24 hours a day for five months? 5 A. I am not sure I understand that 6 question. 7 Q. You don't understand it. 8 A. I am not sure I understand what you're 9 saying. 10 MR. GOLD: Could you read it back to 11 the witness. 12 (A portion of the record was read.) 13 A. I am not sure if you're saying that by 14 our writing stories that we're perpetuating the 15 need to link. Is that your -- 16 Q. No, you weren't writing stories every 17 day for five months. 18 A. We wrote stories whenever something new 19 happened in the case. 20 Q. But every single day whether you wrote 21 stories or didn't about DeCSS you linked to other 22 sites containing DeCSS for over five months? 23 A. As I've said, the story that we wrote 24 that had all the links remains up. Because that 25 was a story -- I believe it was written in January, 267 1 Goldstein 2 and that has the list of all of the links, and 3 that's just there. Just like the story we may have 4 written last week will be there in five months. 5 Q. But it stays there because you don't 6 take it down, isn't that correct? 7 A. We don't take down our stories, no. 8 Q. You take them down when the court orders 9 you to. 10 A. When the court orders us to take 11 something down, we take it down. 12 Q. Is there any other reason that you can 13 give me for why this posting and linking that we 14 have been discussing are part of your journalistic 15 story? You don't have to repeat anything that 16 you've said already. I am asking if you know any 17 other reasons or have any other reasons for saying 18 that. 19 A. I think I've covered it all. 20 Q. I see. Will you keep linking to the web 21 sites posting DeCSS even if the pace of 22 technological change allows rapid transmission of 23 movies over the Internet? 24 MR. GARBUS: I object to that. You're 25 asking the witness to speculate. 268 1 Goldstein 2 A. My answer is yes because it's 3 irrelevant. 4 Q. Do you plan to keep linking to web sites 5 posting DeCSS even if the pace of technological 6 change makes the storage of movies on a hard drive 7 much easier, takes much less space? 8 MR. GARBUS: I object to the question. 9 It calls for speculation. 10 A. I would say the same thing. It's 11 irrelevant to what the story is about. 12 Q. So you will keep right on linking or 13 posting if the court allows to. 14 MR. GARBUS: I object. 15 MR. GOLD: Strike that. 16 Q. Then I gather no matter what 17 technological developments may bring, your plans 18 are to keep posting and linking DeCSS unless the 19 court stops it. 20 MR. GARBUS: Objection. Calls for 21 speculation. 22 A. I can repeat what I said about we keep 23 stories on our web site because it's how we present 24 our stories. We don't take things down. If we're 25 directed to take it down, we take it down. 269 1 Goldstein 2 Q. So the answer to my question is yes. 3 A. I suppose, yes. 4 Q. Are your plans to keep linking to DeCSS 5 web sites even were you to determine that hundreds 6 of thousands of movies were being transmitted over 7 the Internet? 8 MR. GARBUS: Object on the grounds it 9 calls for speculation. 10 A. Again, I have to repeat. 11 Q. Your answer would be the same. 12 A. My answer would be the same. 13 Q. So your current plans are to do all of 14 these things no matter which of the changes that I 15 have just mentioned take place; is that true? 16 A. Again, it's -- I can't speculate on 17 that. Our site is a representation of new stories. 18 That is part of the news story. 19 Q. So your plans would remain to keep 20 posting or linking. 21 MR. GARBUS: I will object. 22 Q. Is that true? 23 MR. GARBUS: I will object on the 24 grounds of it calls for speculation. 25 A. I can't answer any further based on 270 1 Goldstein 2 that. 3 Q. Did you testify before, I can't 4 remember, that you were familiar with Napster? 5 A. I said I used it maybe once or twice. 6 Q. So you know how it works? 7 A. I have a vague knowledge of how it 8 works. I am no expert. 9 Q. Do you know that it's a system which 10 allows members of the public with Internet access 11 to share files of songs with each other? 12 A. My understanding of it is that it allows 13 people to -- it's kind of like a directory. It 14 points people at sites. 15 Q. So they can exchange music? Is that 16 your understanding? 17 A. I don't know what the intent is. I 18 mean, that's -- 19 Q. Well, when you used it did you use it to 20 download some music you found on Napster? 21 A. I used it to see how the program worked, 22 to see what the fuss was all about, to see if it 23 actually worked. 24 Q. Did you download music? 25 A. I listened to one song. 271 1 Goldstein 2 Q. Does that mean you downloaded it on to