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2 UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
3
UNIVERSAL CITY STUDIOS, INC., )
4 PARAMOUNT PICTURES CORPORATION, )
METRO-GOLDWYN-MAYER STUDIOS, INC.,)
5 TRISTAR PICTURES, INC., COLUMBIA )
PICTURES INDUSTRIES, INC., TIME )
6 WARNER ENTERTAINMENT CO., L.P., )
DISNEY ENTERPRISES, INC., and )
7 TWENTIETH CENTURY FOX FILM )
CORPORATION, )
8 )
Plaintiff(s), )
9 )
vs. )
10 )
ERIC CORLEY a/k/a "EMMANUEL )
11 GOLDSTEIN" and 2600 ENTERPRISES, )
INC.,, )
12 )
Defendant(s). )
13 ----------------------------------)
14
15 DEPOSITION OF ERIC L. BURNS
16 New York, New York
17 Tuesday, July 18, 2000
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Reported by:
25 MAYLEEN CINTRON
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3 July 18, 2000
4 7:41 p.m.
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6 Deposition of ERIC L. BURNS, a
7 non-party witness, held at the offices of
8 Proskauer Rose, LLP, 785 Broadway, New York
9 New York, pursuant to Court Order, before
10 MayLeen Cintron, a Notary Public of the
11 State of New York.
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2 A P P E A R A N C E S:
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4 PROSKAUER ROSE, LLP
5 Attorneys for Plaintiffs
6 1585 Broadway
7 New York, New York 10036-8299
8 BY: MICHAEL T. MERVIS, ESQ.
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10 FRANKFURT GARBUS KLEIN & SELZ, PC
11 Attorneys for Defendants
12 488 Madison Avenue
13 New York, New York 10022
14 BY: EDWARD HERNSTADT, ESQ.
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3 F E D E R A L S T I P U L A T I O N S
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6 IT IS HEREBY STIPULATED AND AGREED
7 by and between the attorneys for the respective
8 parties herein, that filing and sealing be and
9 the same are hereby waived.
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11 IT IS FURTHER STIPULATED AND AGREED
12 that the within deposition may be sworn to and
13 signed before any officer authorized to
14 administer an oath, with the same force and
15 effect as if signed and sworn to before this
16 Court.
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2 E R I C L. B U R N S, called as a
3 witness, having been first duly sworn by a
4 Notary Public, was examined and testified as
5 follows:
6 THE REPORTER: Please state your full
7 name for the record.
8 THE WITNESS: Eric Lee Burns.
9 EXAMINATION BY
10 MR. HERNSTADT:
11 Q. Good evening, Mr. Burns. I'm Edward
12 Hernstadt from Frankfurt Garbus Klein & Selz. We
13 represent the Defendants. I will be taking your
14 deposition tonight.
15 Have you ever been deposed before?
16 A. No, sir.
17 Q. As you know, you were just sworn in,
18 which means you are sworn to tell the truth. If
19 you don't understand a question, ask me about
20 it. And I will explain it to you.
21 Are you under any kind of medication
22 that would make your answers tonight something
23 less than --
24 A. No.
25 Q. -- completely accurate?
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2 MR. MERVIS: Off the record.
3 (Discussion off the record.)
4 BY MR. HERNSTADT:
5 Q. Mr. Burns, what is your educational
6 background?
7 A. Starting with college?
8 Q. Sure.
9 A. I went to Carnegie Mellon University,
10 or I have attended Carnegie Mellon since 1996. I
11 have been there for four years. I finished my
12 IDS degree in, at the end of the last semester,
13 which was Spring 2000. I have one additional
14 course for my CS minor, and I will finish that
15 December 2000.
16 Q. What is IDS?
17 A. IDS stands for information and
18 decision systems.
19 Q. What does that refer to?
20 A. It is essentially a computer science
21 background with a database focus. Database being
22 information systems.
23 Q. What does that prepare you to do?
24 A. It prepares me to design large scale
25 systems for processing large amounts of
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2 information and delivering human readable results
3 from the information.
4 Q. What would an example of that kind of
5 system be?
6 A. The perfect example is the Universal
7 Library Project, which is to put all public
8 domains on-line in a searchable format. That's
9 the best example I can think of.
10 Q. Is it something like what ADP does,
11 you know, writing checks for companies?
12 A. What is ADP?
13 Q. Forget that. Would it be similar to a
14 payroll company that does the payroll for some
15 other company?
16 A. That's a tiny subset of what IDS is
17 about. Another example would be Gougel is a
18 search engine, and IDS overlaps that, although it
19 is more computer science type application.
20 Q. Gougel is?
21 A. Gougel.
22 Q. Okay. The Universal Library Project,
23 is that turning books into an individual format
24 type of an IDS type project?
25 A. No. Though the ones I do with the
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2 books, they are in digital format.
3 Q. Is that in terms of putting tags on
4 them, archiving them in the way people can find
5 them in a lot of different angles?
6 A. No. All the librarian work is done by
7 librarians. I'm responsible for the information
8 systems that ties everything together.
9 Q. Is there any way to describe that for
10 the layperson?
11 MR. MERVIS: I object to the form of
12 the question. You can answer.
13 A. For the layperson, what I personally
14 do is I design a system that can take all type of
15 content, video, audio, you know, text data,
16 images, virtually any type of content, and allow
17 individuals with minimal experience to search on
18 it and to locate what they want. It is a digital
19 library.
20 Q. What kind of courses did you take for
21 that major?
22 A. For the IDS major or CS major?
23 Q. The IDS major.
24 A. I took Information Systems I and II,
25 Information Systems Applications, Decision
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2 Analysis and Decision Support Systems, and
3 several database design courses, programming
4 courses. I can give you a record if it's
5 necessary.
6 Q. No, that's not necessary. What kind
7 of programming courses have you taken in either
8 major?
9 A. For my CS degree, I've taken -- let me
10 just give you the highest level and that will
11 give you an idea of everything below it.
12 I've taken data structures, database
13 designs and human computer interaction. Database
14 design is actually the wrong name for the
15 course. It is called Database Applications. And
16 the idea is to create a system that works almost
17 identically to EBay where there is some imaging
18 process features. It is an EBay work like.
19 Q. What kind of computer languages do you
20 program in?
21 A. C, C++, Java, Java Script, Visual
22 Basic, Perl, SQL, which stands for structured
23 queried language, and a number of other random
24 languages which probably are unimportant.
25 Q. Have you ever taken any courses in
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2 video compression?
3 A. Yes, I've taken multimedia information
4 processing, which I actually dropped toward the
5 end of my semester due to time requirements. I
6 learned a reasonable amount of the compression
7 algorithm used in mpeg compression.
8 Q. MPEG1?
9 A. Mpeg in general. I mean, I didn't get
10 deep enough to illustrate differences between
11 MPEG1 and MPEG2, for example.
12 Q. Did you look at MPEG4 at all?
13 A. My work for the Universal Library,
14 half of that work is devoted to the video section
15 of the Universal Library. And for that job, I've
16 done a large amount of research in video
17 compression technology. Some of which
18 necessitated my learning enough about MPEG4 to
19 be, to make informed decisions on whether or not
20 we should use it, how we should use it, what
21 applications it was suited for, what it was not.
22 Q. Did you decide to use it in the
23 Universal Library Project?
24 A. We use Microsoft Windows Media format
25 for some of our video, and that is based on
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2 Microsoft's MPEG4.
3 Q. When you say "we," who is we?
4 A. "We" meaning the Universal Library
5 Project, myself, Michael Shamos, Dr. Reddy,
6 various of the Universal Library people.
7 Q. Who made the decision to use the
8 Microsoft MPEG4 program?
9 A. I don't recall specifically, but it
10 was either myself or Dr. Reddy or the two of us
11 agreeing on the standard.
12 Q. Is that the basis of DivX?
13 A. Yes. MPEG4, an older version of
14 Microsoft's MPEG4 is -- DivX is based on an older
15 version of MPEG4.
16 Q. Does it have any capabilities that are
17 not in the Microsoft MPEG4 program?
18 A. I can't answer that as an expert, but
19 I can give you an opinion, a belief.
20 MR. MERVIS: Hang on. So we are
21 clear --
22 MR. HERNSTADT: Off the record.
23 (Discussion off the record.)
24 MR. MERVIS: So we are clear,
25 certainly our understanding of the purpose
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2 of this deposition was not to inquire into
3 any expert views or opinions that the
4 witness may have.
5 MR. HERNSTADT: I'm not seeking that.
6 MR. MERVIS: I want to make clear that
7 this examination is of a fact witness who
8 may have some expertise, but as far as I'm
9 concerned, eliciting opinions is off bound.
10 Q. I'm not seeking to elicit opinions
11 from you, Mr. Burns.
12 A. Okay.
13 Q. Basically my goal in this deposition
14 is to get a sense of your experience, what you
15 know about the type of work that was done and the
16 experiment that was set forth in Dr. Shamos'
17 declaration that you worked on with him.
18 A. Okay.
19 MR. MERVIS: That seems perfectly
20 appropriate.
21 MR. HERNSTADT: Of course, in that
22 sense, I think DivX is sort of --
23 MR. MERVIS: I don't disagree with
24 you. I hadn't objected to the question.
25 Q. So I don't want an opinion. But have
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2 you worked with DivX?
3 A. Yes.
4 Q. Having worked with it, have you
5 experienced differences in how DivX works and how
6 the Microsoft MPEG4 program works?
7 A. Yes.
8 Q. What are the differences?
9 A. That's quite a long list. Can you
10 give me a smaller subject?
11 Q. It is hard for me to because I don't
12 know what the differences may be. Do you want to
13 give categories and maybe I can inquire to
14 categories I think are relevant?
15 A. Basic categories are content creation,
16 things you can do with the content once you have
17 it; compression quality. Those are a couple.
18 Q. Does DivX give you more options in
19 each of those categories?
20 A. No.
21 Q. Does DivX give you fewer options in
22 each of those categories?
23 A. I don't believe I've explored the
24 various options enough to answer that, because
25 there are literally hundreds.
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2 Q. As part of the Universal Library
3 Project, do you find public domain videos and
4 then digitize them and store them in some
5 database?
6 A. Typically the way we deal with that is
7 to try to get an original analog or digital video
8 copy. In many cases we go straight to our own
9 digital format, in some cases, Windows Media.
10 So it is unusual for us to get
11 something from someone else in an already video
12 compressed format that isn't on some sort of
13 recording media.
14 Q. What do you typically get?
15 A. We typically get VHS video cassettes,
16 high quality professional BETA cassettes or
17 digital video cassette.
18 Q. Who do you get them from?
19 A. Anyone who wants to contribute to the
20 library.
21 Q. Have you ever gotten any public domain
22 films on DVD?
23 MR. MERVIS: You said films? Can you
24 read back the question?
25 MR. HERNSTADT: Yes. I said public
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2 domain films.
3 A. What do you mean by public domain
4 films?
5 Q. Let me ask you this: The video
6 project, what kind of works does that encompass?
7 A. Most of my dealing with it and most of
8 our sort of pilot project for this has been
9 creating an archive of lectures given by various
10 high level people in computer science.
11 Q. Because when you said public domain, I
12 thought of public domain, copyright in public
13 domain?
14 A. You would have to talk to Mike Shamos
15 for our goals in that respect.
16 Q. Are there any fiction works in the
17 Universal Library Project at this point?
18 A. There are many. Many of them are
19 books.
20 Q. Are there any fiction film works?
21 A. I don't think I know offhand. It is a
22 large library.
23 Q. Have you taken any courses in
24 networking?
25 A. Not explicitly, although networking
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2 was a major part of both databases and
3 information systems applications for the research
4 that I did.
5 Q. Have you ever taken any courses that
6 relate to bandwidth?
7 A. Yes. My final project in multimedia
8 information -- I'm sorry. What was the name of
9 that course? Some multimedia course whose name
10 escapes me. My final project was an exploration
11 of current bandwidth technology and the future of
12 bandwidth technology.
13 Q. Is it the School of Computer Science?
14 A. Yes.
15 Q. Do you know what the topology of the
16 network there is?
17 A. I understand the topology, but not --
18 I'm sorry?
19 Q. Go ahead. Finish your answer. I
20 didn't mean to interrupt you.
21 A. Go ahead and finish the question.
22 Q. I was going to ask a preliminary
23 question. It might be easier. Is it in a single
24 building or is it in more than one building?
25 A. Multiple buildings.
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2 Q. Is there a single network that joins
3 all the buildings together?
4 A. There is actually -- I'm not enough of
5 an expert to give you a real good answer on this
6 question.
7 Q. I'm not even asking for an expert
8 opinion or an expert answer, just what you know.
9 A. I know it is made up of many small
10 sub-nets that are linked together.
11 Q. Do you know what the topology is; how
12 they're linked and what the speeds of each
13 sub-net is?
14 A. I would have to have specific
15 questions to know.
16 Q. What is the sub-net that your office
17 is on; how many offices are on that sub-net?
18 A. I don't know.
19 MR. MERVIS: I was going to object to
20 the form. And I still do. But you've
21 answered.
22 Q. Do you know how many sub-nets are in
23 the building which you're in?
24 A. No.
25 Q. What is the speed of each sub-net?
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2 A. I would need to know which subset
3 you're referring to.
4 Q. The one you're on.
5 A. The one I'm on is 100 megabit. I'm
6 not aware whether it is switched or shared. I
7 believe it is switched.
8 Q. Is it the same one that Dr. Shamos is
9 on?
10 A. Yes.
11 MR. HERNSTADT: Off the record.
12 (Discussion off the record.)
13 BY MR. HERNSTADT:
14 Q. Is Dr. Shamos on your sub-net?
15 A. Yes.
16 Q. Do you know what sub-net connects to
17 it?
18 A. That's a vague question.
19 Q. What's the next link? It goes to a
20 switch and --
21 A. I don't know enough topology to give
22 you an answer.
23 Q. Do you know if it connects to a larger
24 net for the School of Computer Science or does it
25 connect to a backbone?
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2 A. I know there is a routing step outside
3 the sub-net that I'm on.
4 Q. Do you know what the switch is at that
5 routing step?
6 A. No.
7 Q. Or the speed of it?
8 A. It is better than a hundred.
9 Q. Better than a hundred?
10 A. I'm sorry. It is a hundred or better.
11 Q. Does that then hook to a campus
12 backbone?
13 A. At some point down the line it does.
14 Q. Do you know what the speed is of the
15 connection to the backbone?
16 A. No.
17 Q. Do you know what the speed is of the
18 connection from the backbone to the Internet?
19 A. No.
20 Q. Did you ever live in the dorms?
21 A. Yes.
22 Q. Do you know what the topology of the
23 dorm is?
24 A. I know that the connection available
25 to me in the dorms is a ten megabit line.
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2 Q. Is that on a sub-net per floor,
3 sub-net per dorm building?
4 A. Varies by the dorm.
5 Q. When you did the ten megabit line
6 experiment, what computers were you going from,
7 to?
8 MR. MERVIS: Object to the form.
9 There is no foundation. You can answer if
10 you understand.
11 A. Yes, I do.
12 Q. I'm talking about the ten megabit line
13 experiment described in Dr. Shamos' declaration.
14 A. The experiment I performed was using a
15 ten megabit only carve for the laptop which
16 forced the link to that laptop to be only ten
17 megabits. I transferred that from the laptop to
18 another computer on the network.
19 Q. What computer?
20 A. I transferred it to another computer
21 in my office also on that network.
22 Q. So two computers on the same sub-net?
23 A. Yes.
24 Q. So the output was forced down to ten
25 megabit even though you were on a hundred megabit
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2 ethernet?
3 A. Yes.
4 Q. Now, did you do this experiment alone
5 or was Dr. Shamos there when you did it?
6 A. I don't recall.
7 Q. What time of the day did you do it?
8 A. I don't remember.
9 MR. MERVIS: Are you asking for the
10 exact time?
11 Q. No. Generally, what time of the day.
12 Five in the morning? Six in the morning?
13 A. Most likely during business hours. It
14 is a trivial test. I wouldn't remember when
15 precisely I did it.
16 Q. Let me refer you to the experiment
17 that was described in Dr. Shamos' declaration of
18 July 1st --
19 MR. MERVIS: I have the declaration
20 here.
21 MR. HERNSTADT: That's good.
22 MR. MERVIS: It might be easier for
23 both you, me and the witness if we refer to
24 it. Unfortunately I will have to run out
25 and make one more copy.
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2 MR. HERNSTADT: Let's go off the
3 record.
4 (Discussion off the record.)
5 BY MR. HERNSTADT:
6 Q. You have been handed Trial
7 Exhibit 129, which is the declaration of
8 Michael I. Shamos.
9 Take a look through it, if you would,
10 starting on Paragraph 3 and going through the
11 experiment, I guess it's through Paragraph 22.
12 MR. MERVIS: I'm sorry. 22 is where
13 you want him to stop?
14 MR. HERNSTADT: Yes.
15 MR. MERVIS: Take as much time as you
16 need to read.
17 A. I can refer back to it during
18 questions, can't I?
19 MR. MERVIS: Go ahead and read it.
20 (Witness reviewing document.)
21 Q. I'm going to take you a step back.
22 When I asked you about the dormitory network and
23 you said it was a ten megabit ethernet -- well,
24 you didn't say it was a ten megabit ethernet.
25 Let me ask you. Is it ten megabit ethernet?
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2 A. Yes.
3 Q. You did know the speed of the
4 connection out of the dorm; is that correct?
5 A. No.
6 Q. Do you know if it is a switched
7 network within the dorm or shared?
8 A. No.
9 Q. Did you do much work on your computer
10 from your dorm room when you lived in the
11 dormitory?
12 A. Yes.
13 Q. What was the fastest download time
14 speed you ever achieved, if you know?
15 MR. MERVIS: Let me object to the form
16 of the question. You can answer.
17 A. Would you like to rephrase it?
18 Q. No. If you understand it.
19 MR. MERVIS: If you understand the
20 question, go ahead and answer it.
21 A. The fastest transfer I have ever seen
22 through a CMU net was 1100 kilobytes per second.
23 Q. Was that in a relatively untrafficed
24 time of day?
25 A. During the four years that I lived in
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2 the dormitories, I saw that on a regular basis.
3 Q. At all times of day or specific times
4 of day?
5 A. I've done it more times that I can
6 recall.
7 Q. How about from your office; what was
8 the fastest transfer speed you've ever seen?
9 A. My office to where?
10 Q. The Internet.
11 A. The last question was from --
12 THE WITNESS: Can I say this?
13 Q. I know what you're saying.
14 MR. MERVIS: Hold on. If you don't
15 understand the question, you are free to
16 seek clarification.
17 A. Let's go off the record.
18 MR. MERVIS: Off the record.
19 (Discussion off the record.)
20 BY MR. HERNSTADT:
21 Q. Office to the Internet?
22 A. Office to the Internet?
23 Q. Right.
24 A. The highest I have seen is 800
25 kilobytes per second.
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2 Q. How about within the ethernet in the
3 office; office to office, let's say? Within the
4 School of Computer Science?
5 A. I have seen it peak as high as 4.5
6 megabytes per second.
7 Q. Your earlier answer about the fastest
8 transfer speed you saw in the dorms was within
9 the dorm's ethernet?
10 A. Correct.
11 Q. How about from the dorm to the
12 Internet?
13 A. The most I ever transmitted at once
14 was 900 kilobytes per second to University of
15 Illinois, Urbana Champaign.
16 Q. Is that a frequent speed of transfer
17 or was that very rare?
18 A. I need a better question.
19 Q. Did you get that transfer speed only
20 at the University of Illinois or Urbana
21 Champaign?
22 A. The only time I have ever tried to
23 reach that speed was at Urbana Champaign. I
24 wasn't doing network test as a student.
25 Q. I understand. But I would imagine
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2 when you're done loading something from the
3 Internet, you prefer to do it faster rather than
4 slower?
5 A. The only time I've seen that was
6 during that informal test.
7 MR. MERVIS: So the record is clear,
8 you're referring to the transfer to the
9 University of Illinois, Urbana Champaign?
10 THE WITNESS: Correct.
11 Q. Is there a typical dorm-to-Internet
12 transfer speed that you saw?
13 A. I don't think there is any typical
14 speed.
15 Q. What is the usual transfer speed that
16 you saw?
17 A. Anywhere from half a kilobyte per
18 second to 900 kilobytes per second.
19 Q. Was it slower uploading than
20 downloading?
21 A. Doesn't seem to make a difference.
22 Q. Does that mean it is a symmetrical
23 ethernet?
24 MR. MERVIS: Object to the form of the
25 question. You can answer.
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2 A. It is an expert question. I believe
3 so.
4 Q. I'm only asking if you know.
5 A. Okay.
6 Q. You think so but you're not sure?
7 A. Yes.
8 Q. Can you explain why on the hard drive
9 of the SONY VAIO, the date created is after the
10 date modified?
11 A. Yes, I can.
12 MR. MERVIS: Before we do that --
13 MR. HERNSTADT: Have you very
14 thoughtfully created screen shots?
15 MR. MERVIS: Not only that, but I've
16 made multiple copies. I believe these are
17 the three. There are three screen shots of
18 which I've made five copies per.
19 MR. HERNSTADT: Let's mark this as
20 Burns Exhibit 1.
21 (Burns Exhibit 1, 3pp screen shots,
22 marked for identification, as of this date.)
23 Q. If you take a look at Burns Exhibit 1,
24 let me ask you: Who did the screen shots we are
25 looking at?
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2 MR. HERNSTADT: Let me identify Burns
3 Exhibit 1. Three separate screen shots.
4 One is of Sleepless in Seattle.avi, one is
5 of Sleepless Short.avi, and the third is of
6 the Matrix(DivX).avi.
7 Q. Can you tell me who made these screen
8 shots?
9 A. I did.
10 Q. What are they screen shots of?
11 A. Screen shots of the "Properties"
12 window of each of these files as Windows 2000
13 shows it.
14 Q. These are files that are on the hard
15 drive of the SONY VAIO for the experiment set
16 forth in Dr. Shamos' declaration?
17 A. Correct.
18 Q. Can you explain to me why the modified
19 date is prior to the created date?
20 MR. MERVIS: I'm sorry, which?
21 Q. Let's start with Sleepless in
22 Seattle.avi.
23 A. Yes, I can explain. Do you want me
24 to?
25 Q. Yes, please.
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2 A. I'm trying to figure out where to
3 start because it is a lengthy explanation.
4 Once I had installed Windows 2000, I
5 installed a software DVD player to play my DVDs
6 and all of the other tools required for creating
7 DivX'es. I went through the DivX creation
8 process on the laptop and produced the
9 "Sleepless in Seattle" DivX as the final result
10 of that.
11 I later went back to play the original
12 VOB file to make sure that still worked properly
13 and I noticed that it didn't. After several
14 experiments to try to figure out what had
15 caused -- in order to play VOB files, you must
16 have a software DVD player of some sort. You
17 can't just play them if you have Windows.
18 So when Media Player plays a VOB file,
19 it plays the VOB file using the software
20 installed by the DVD player, by the software DVD
21 player. The VOB file was not playing, so I tried
22 to figure out what the problem was.
23 I later determined the problem was
24 caused by a conflicting set of filters installed
25 when I used Graph Edit, which is the utility
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2 required for creating DivX files.
3 In order to resolve this problem, the
4 quickest most effective, least error prone way I
5 could think of, was to back up the files that I
6 had created for this experiment, and reformat the
7 notebook with a new installation of Windows 2000.
8 I did the Windows 2000 installation on
9 July the 2nd, and I later copied the files back
10 over to the laptop on July 9th.
11 My assessment of this is that the
12 modification date for "Sleepless in Seattle" is
13 June 27th because that's the date I finished it.
14 And if you look at the time for that, it
15 corresponds fairly close when I went on IRC with
16 Erisol. And the creation date, July 9th, which
17 would be consisted when I copied these back to
18 the laptop from their back-up.
19 Q. What did you back the files onto?
20 A. I had a spare 21 gigabite in my office
21 that I used for back-up.
22 Q. So if we turn to the Matrix.avi, does
23 that suggest to you that it was modified on
24 June 15th; that that was the date that it was
25 completed?
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2 A. My belief on this is that if you look
3 to our CD ROM copies that we have given you guys,
4 on the Sleepless Short, the creation/modification
5 dates, not this Sleepless Short, but the CD ROM
6 we have given you, are all set to approximately
7 the same thing. I believe that's the result that
8 happens when you burn one of these DivX'es to a
9 CD.
10 My conversation with Erisol led me to
11 believe that he was copying the "Matrix" from CD
12 onto his hard drive, which would explain the date
13 on the CD -- the date on the hard drive which my
14 guess is June 15th.
15 Q. The CD ROM that you burned for us of
16 the --
17 A. Sleepless Short. I'm sorry. The
18 "Matrix" is the one we should look at actually.
19 Q. Of Sleepless. It was two CDs. Do you
20 have those two?
21 A. I burned Sleepless Short for you guys
22 once I got to New York.
23 Q. That was on the 16th or 17th?
24 A. Something around then.
25 Q. It said July 16th on it. The first
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2 Sleepless you burned for us, though, on two CDs,
3 they have a creation date and modification date
4 of July 11th?
5 A. Right.
6 Q. Which was the date that you burned
7 them?
8 A. Right.
9 Q. The "Matrix" that you burned for us
10 has a creation date --
11 A. Modification date of June 14th I
12 assume you're going to say.
13 Q. June 15th.
14 A. Okay.
15 Q. The "Matrix" CD that you burned for
16 the Court has a modification date of June 14th.
17 How do you explain that?
18 A. Right. If you examine closely the
19 modification dates of the "Matrix" on the hard
20 drive, the screen shot, and the "Matrix" that's
21 on the CD ROM, you will notice that the
22 modification date is offset by what appears to be
23 a four-hour time zone. It crosses the date
24 border.
25 It is actually the same modification
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2 time, but there is some strangeness going on with
3 the time zone recording that leads me to believe
4 it is the same file with no change in
5 modification.
6 Q. Can you explain how the date file on
7 the hard drive -- the hard drive is a SONY VAIO
8 -- would change by four hours?
9 A. It would not be the date of the hard
10 drive on the VAIO. It would be that my clock on
11 the VAIO is likely set to -- I don't know enough
12 about the way time zones work to explain this
13 properly.
14 But my guess is that my VAIO clock is
15 set internally to four hours, different from the
16 time that it thinks it is and Windows sorts that
17 out. So when I burn it to a CD, I get a
18 different time. Again, this is just a guess.
19 Q. Can you check that under the VAIO?
20 Does that mean it would be four hours earlier
21 now? The VAIO would be four hours earlier than
22 our time?
23 A. I can look.
24 Q. Let me ask you this, also. I don't
25 have the screen shot of the two different CDs
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2 that were burned for the Court, one dated 6/14,
3 one dated 6/15. Do you have those CDs?
4 MR. MERVIS: The answer is we have the
5 Court exhibits, yes. I have them in my
6 office.
7 RQ MR. HERNSTADT: Can we check the two
8 times of burning?
9 MR. MERVIS: Yes.
10 RQ MR. HERNSTADT: And the two times of
11 modification?
12 MR. MERVIS: Let's put it this way.
13 I'm very happy to let Mr. Burns load the CDs
14 into his machine and do what he needs to do
15 to confirm what you need.
16 Q. Let me ask you this: Wouldn't that
17 same clock affect the "Sleepless in Seattle"
18 properties as well?
19 A. I'm not sure if it did or didn't.
20 Q. Wouldn't it?
21 A. It would depend. I have not explored
22 this enough to know the clock difference is
23 because of Erisol's location, Erisol's time zone
24 settings or any of that. I just assume -- that's
25 the wrong word. I guess that this is due to time
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2 zones, based on the fact that it is a precise
3 four-hour difference.
4 Q. Once the file is on the hard drive of
5 the VAIO, then where Erisol is and who he is and
6 what is on his computer is irrelevant, isn't it?
7 You have a file on your hard drive and
8 isn't it then timed by the clock of the computer
9 on which the hard drive resides?
10 A. I'm not sure I understand the
11 question.
12 Q. Once you have downloaded the "Matrix,"
13 that is stored on the hard drive of the VAIO?
14 A. Correct.
15 Q. Once the "Matrix" is stored on the
16 hard drive of the VAIO, then isn't it the clock
17 of the VAIO that will tell us what time it was
18 modified and what time it was created?
19 A. Correct.
20 Q. Does it do that by referring to an
21 information in the file of the "Matrix" that's
22 stored on hard drive?
23 A. That I also don't understand. Can you
24 rephrase it?
25 Q. How are the times in the "Properties"
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2 window, and specifically the modification time,
3 how is that determined when you call up
4 "Properties" window and you seek the properties
5 of a particular file?
6 A. It is not a property of the file. It
7 is a property of the file system.
8 Q. How is that measured?
9 A. How is that measured? Again, I'm not
10 sure I understand.
11 Q. The date of the modification, for the
12 "Matrix" is the date that Erisol copied it from
13 a CD to his hard drive to send it to you?
14 A. Or the date he copied it to the CD. I
15 believe it is the date he copied it to the CD
16 based on the fact it is June 15th.
17 Q. That's a particular date and time,
18 correct? Is that a fixed date and time in the
19 file of the "Matrix"?
20 A. No. None of this is attached to the
21 file itself.
22 Q. So the date and time of modification,
23 how is that transferred from Erisol's computer to
24 your computer?
25 A. You know what? I'm incorrect. It
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2 must be a property of the file. However, I am
3 not -- I'm definitely not qualified to give you
4 an explanation of file system date and time
5 structure.
6 Q. The problem I have with your otherwise
7 ingenious explanation is that the "Sleepless in
8 Seattle" modification time is, as you said, only
9 about 20 minutes before the IRC chat that you
10 traded with Erisol commenced, the session with
11 Erisol commenced.
12 I don't understand why that
13 modification time would remain stable when burned
14 on two different occasions, but the modification
15 time of the "Matrix" would not?
16 A. You're asking me for the explanation?
17 Q. If you have it.
18 MR. MERVIS: And I should note to the
19 extent that it would help you to get on your
20 machine and refer to it, I certainly think
21 that's something you should do.
22 THE WITNESS: It probably wouldn't
23 hurt. Let's do that now.
24 MR. MERVIS: It is up to you. Do you
25 want to do it now?
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2 Q. Let's come back to it.
3 A. I can give another speculation.
4 MR. MERVIS: I don't think he wants
5 speculation. Why don't we wait?
6 Q. Is it fair to say that at this point
7 you're not quite sure why?
8 A. This is -- I do not know conclusively.
9 Q. Let me finish the question. You're
10 not sure why, and specifically I'm asking why the
11 time is different on the two versions of the
12 "Matrix" that were burned on the CDs?
13 A. I cannot give you a precise answer.
14 Q. Let's go through the declaration.
15 What I would like to do is go step-by-step and
16 ask you for each of these. I will ask the
17 question, if necessary. Maybe we can get into a
18 rhythm to save some time.
19 Who was present for each step and who
20 did what for each step, and how long did each
21 step take?
22 A. Can we go off the record for a
23 second?
24 Q. Sure.
25 (Discussion off the record.)
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2 BY MR. HERNSTADT:
3 Q. Let's look at Paragraph 3, Dr. Shamos
4 says he was engaged by Proskauer Rose. When did
5 Dr. Shamos ask you to assist him in a project for
6 Proskauer Rose?
7 A. I believe that was midday on
8 June 22nd.
9 Q. What did he say to you on that
10 occasion and what did you say to him in sum and
11 substance?
12 A. I believe it was something to the
13 effect of, "Come into my office, I'm taking a
14 phone call."
15 Q. Were you in on it from the start?
16 MR. MERVIS: Objection to the form of
17 the question.
18 A. Yes.
19 Q. If you understand what I mean by that
20 question.
21 A. "In on it" being this project?
22 Q. Yes.
23 A. And "the start" I assume being that
24 phone call, which it may not have been, yes.
25 Q. Do you know if that was the first
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2 phone call he received?
3 A. No, I don't know.
4 Q. When did he talk to you about how much
5 you were going to be paid for the project?
6 A. I do not recall specifically, but it
7 was well after I had agreed to work on it.
8 Q. Did you ask for a particular hourly
9 fee or did he sort of tell you?
10 A. No. I said I would work with what
11 they wished to provide me with.
12 Q. Who told you what your hourly rate
13 would be?
14 A. Michael Shamos.
15 Q. What did he tell you?
16 A. He told me I would be working for $100
17 an hour.
18 Q. Is that the highest hourly rate you've
19 ever gotten?
20 MR. MERVIS: Let me object to the
21 form. You can answer.
22 A. I'm not sure, actually.
23 Q. Did you listen in on that first phone
24 call on June 22nd?
25 A. I don't recall if it had already begun
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2 by the time I entered the office. And I was
3 present for what I was instructed to be present
4 for, which may or may not have been the entire
5 phone call.
6 Q. Was that on a speaker phone so you
7 could hear both sides of the phone?
8 A. Some were speaker, some was headset.
9 Q. What was the substance of that
10 telephone call?
11 A. The substance seem to me that Bill
12 Hart requested some services to be performed by
13 Mike and myself in relation to this case.
14 Q. What was the service that he was
15 asking to be performed?
16 A. He gave a general description of a few
17 tasks that he wanted performed; one being to
18 DeCSS a DVD and another being to create a DivX
19 from that DVD.
20 Q. What did you do next?
21 A. Mike and I -- I'm sorry, Dr. Shamos
22 and I drove to Comp USA and purchased the
23 computer.
24 Q. That was the SONY VAIO?
25 A. Yes.
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2 Q. Was this a high-end computer?
3 MR. MERVIS: I object to the form.
4 You can answer.
5 A. It is up there for a laptop, but not
6 ridiculous.
7 Q. Was this the most expensive laptop
8 available in the store?
9 A. No. No.
10 Q. What's going to happen to the computer
11 after the case is over?
12 MR. MERVIS: Objection to form. Calls
13 for speculation.
14 Q. If you know.
15 A. I'm not sure.
16 Q. You don't get to keep it?
17 A. I don't know one way or the other.
18 Q. Do you still have the computer?
19 A. It's sitting in an office here.
20 Q. Did you also buy DVDs at Comp USA?
21 A. We purchased "Sleepless in Seattle"
22 and another DVD which we believed to be
23 "Titanic," but turned out to be a knock-off and
24 we didn't use that.
25 Q. How do you know it was a knock-off?
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2 A. Because it was an arts and
3 entertainment special that gave all the trappings
4 of being "Titanic" until you looked at it.
5 Q. You thought it was "Titanic" starting
6 DeCaprio?
7 A. It was also $35.
8 Q. Remarkable. Did you go and buy more
9 DVDs anywhere else?
10 MR. MERVIS: In connection with this
11 lawsuit?
12 MR. HERNSTADT: Yes.
13 A. Yes. At a later date. Much later
14 date, I purchased the "Matrix," "Fight Club,"
15 "Goodwill Hunting" and "Ghost In The Shell."
16 Q. "Ghost In The Shell"?
17 A. Yes.
18 Q. When did you buy those?
19 A. I don't recall specifically.
20 Q. Was it after July 1st?
21 A. I believe so.
22 Q. Was it when Dr. Shamos was in Hawaii?
23 A. I believe so.
24 Q. Do you know one way or the other?
25 A. I don't know specifically when it
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2 was. It was in that time frame.
3 Q. The only thing specific I'm looking
4 for: Was Dr. Shamos in Hawaii or was he in --
5 A. I believe he was in Hawaii, to the
6 best of my recollection.
7 Q. That was about two and a half weeks
8 ago. I was hoping you could remember.
9 MR. MERVIS: I object to the form of
10 the question. Don't answer. In fact, it is
11 not even a question.
12 Q. Do you remember specifically one way
13 or the other?
14 MR. MERVIS: Objection to the form of
15 the question as asked and answered. You can
16 answer it again.
17 A. My best guess was that he was in
18 Hawaii because I wasn't keeping exact records on
19 this.
20 Q. So it is "Matrix," "Fight Club,"
21 "Goodwill Hunting" and "Ghost In The Shell"?
22 A. Right.
23 Q. What was the next step?
24 A. "The next step," I assume you're
25 referring to the step after four?
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2 Q. Yes.
3 A. The next step was to take the computer
4 back to CMU and begin the test.
5 Q. Let's skip four and five. Seven, "We
6 obtained the following accessory programs"; who
7 did that task?
8 A. I downloaded all this.
9 Q. You downloaded WinZip, LeechFTP and
10 mIRC?
11 A. Yes.
12 Q. Was Dr. Shamos present when you
13 downloaded those three programs?
14 A. He was in his office across the hall.
15 Q. Did you go to the Internet to download
16 them or did you download them from some other
17 place?
18 A. I downloaded from the Internet.
19 Q. Are those the only three programs you
20 downloaded from the Internet in connection with
21 this experiment?
22 MR. MERVIS: I object to the form of
23 the question.
24 A. In connection with section seven, yes.
25 Q. How about the entire experiment?
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2 A. No. I downloaded other files.
3 Q. Section 8, "visiting the 2600
4 website"; did you do that or did Dr. Shamos do
5 that?
6 A. I believe during the course of this,
7 we both did it.
8 Q. Did you both go to "fuckthelawyers"
9 and download DeCSS?
10 A. I know I did, and I know he visited
11 the page without me being at the computer.
12 Q. Did he visit the page while he was on
13 the VAIO?
14 A. No. He did it from his own PC while I
15 was in the room.
16 Q. Let me be clear. In terms of asking
17 about this experiment, I'm only asking what was
18 done on the VAIO. Because that was the control
19 computer for the experiment, correct?
20 A. Correct.
21 Q. He says, We visited the 2600 website
22 and consulted the archives and went to the list
23 of mirrors and found the "fuckthelawyers" link
24 and went to that link; who did that?
25 A. I did.
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2 Q. Was Dr. Shamos there when you did
3 that?
4 A. I don't recall.
5 Q. Was Dr. Shamos there when you found
6 and downloaded the three programs in Paragraph 7?
7 A. No. They're simple utilities.
8 MR. MERVIS: Off the record.
9 (Discussion off the record.)
10 BY MR. HERNSTADT:
11 Q. Did he know that you had to get
12 LeechFTP?
13 MR. MERVIS: I object to the form of
14 the question.
15 A. I don't know how he would know.
16 Q. Did he know you had to get mIRC 3.71?
17 MR. MERVIS: Same objection.
18 A. I'm not sure I understand the
19 question.
20 Q. Well, the paragraph reads, "We
21 obtained the following accessory programs from
22 the Internet: WinZip 8.0 (for compressing and
23 decompressing files), LeechFTP 207 (for
24 transferring files over the Internet) and mIRC
25 3.71 (for engaging in Internet Relay Chat
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2 sessions)."
3 Did he know that you needed the
4 LeechFTP 207 to transfer files over the
5 Internet?
6 MR. MERVIS: Let me interpose the
7 objection to form. You can answer.
8 A. FTP is a standard Internet service, it
9 is a protocol that's been around forever. And
10 LeechFTP happened to be my favorite client.
11 Q. What does that mean?
12 A. It is just my favorite program for
13 using FTP. WinZip is another incredibly standard
14 program, it is just what you use if you want to
15 use zips. mIRC is the only tolerable IRC client
16 for Windows.
17 And all of these are very common
18 generic applications. It is just handy to have
19 around.
20 Q. Did Dr. Shamos tell you to go get
21 these programs?
22 A. He said, "Do whatever you need to do
23 to get the first step done."
24 Q. Who decided that you were going to
25 trade movies on an IRC channel?
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2 A. It was my suggestion that IRC was a
3 good way to start.
4 Q. Did Dr. Shamos know that IRC channels
5 are used to trade movies?
6 MR. MERVIS: Object to the form.
7 A. Yes.
8 Q. How did he know that?
9 A. I'm sure we had discussed it before.
10 Q. He knew that because you had told him?
11 A. I don't know.
12 MR. MERVIS: Object to the form.
13 Q. Do you know if Dr. Shamos spent a lot
14 of time on IRC channels?
15 A. I don't know.
16 Q. Do you spend a lot of time on IRC
17 channels?
18 A. Yes.
19 Q. How many hours a day do you spend on
20 an IRC channel?
21 MR. MERVIS: I object to the form.
22 A. That's a double question so I will
23 answer it as such. I leave a client connected
24 around the clock and I use it when I require
25 access to the information that people are seeking
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2 to provide me. My primary use in these days is
3 Pound Perl for programming.
4 Q. What other pound sites do you visit?
5 A. I've visited all sorts. Do you want
6 to pick a list?
7 Q. Let's say the five most frequent sites
8 that you hang out at.
9 A. Can we go off the record for a
10 second?
11 Q. Okay.
12 (Discussion off the record.)
13 BY MR. HERNSTADT:
14 Q. Let me come at it from another angle.
15 Have you visited Pound DivX before?
16 A. Not before the beginning of this task.
17 Q. Did you ever visit Pound DVD?
18 A. Yes.
19 Q. Frequently, infrequently?
20 A. No. Very infrequently.
21 Q. Are you a member of any Warez group?
22 A. No.
23 Q. Any VCD or DivX group?
24 A. No.
25 Q. Have you ever been asked to join any?
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2 A. Yes.
3 Q. When was that?
4 A. Pretty much anytime I go into a
5 channel where people who do this kind of thing
6 are hanging out, I get asked immediately because
7 I have a CMU connection.
8 Q. Why is that?
9 A. Because it is my assumption that the
10 people who do this are looking for people with
11 fast connections.
12 Q. What kind of connection at CMU is
13 considered fast?
14 A. It is considered excellent.
15 Q. That's Internet connection?
16 A. Yes.
17 Q. You don't know what the speed of the
18 connection is?
19 A. I don't know conclusively, no.
20 Q. Have you ever joined any?
21 MR. MERVIS: Joined any what? Warez?
22 I think he already answered it.
23 MR. HERNSTADT: Strike that.
24 Q. What channels have you been on where
25 they have asked you to join a Warez group or VCD
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2 group?
3 A. I've been asked in probably every
4 channel I've ever joined.
5 Q. Including Pound Perl?
6 A. Yes, including Pound Perl.
7 Q. Can you give me a couple of other
8 examples of channels you've been asked to join a
9 Warez group or VCD DivX group?
10 MR. MERVIS: Do you need to consult?
11 THE WITNESS: I just rather not answer
12 the question if it is possible.
13 MR. MERVIS: Let's go off the record
14 and let me talk to the witness outside.
15 (Whereupon, a recess was taken from
16 9:07 p.m. to 9:08 p.m.)
17 MR. MERVIS: Let me make a speech
18 which will conclude with an instruction not
19 to answer.
20 As I understand the purpose of this
21 deposition, it was to understand what
22 Mr. Burns did in connection with the report
23 that Dr. Shamos produced and I believe is in
24 evidence and was related, at least in part,
25 during Dr. Shamos' testimony on Monday.
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2 Although I think that it's perhaps
3 fair to probe the witness' general knowledge
4 of the way that people who trade movies over
5 the Internet do so, to the extent that the
6 questioning gets into his own personal
7 activities, I think that that invades his
8 privacy.
9 I think it is irrelevant, and I think
10 it is certainly beyond the scope of what
11 Judge Kaplan intended the deposition to be.
12 DR On that basis, after consulting with
13 Mr. Burns, I'm going to direct him not to
14 answer that question.
15 It does not mean you're foreclosed
16 from this entire line because, again, I
17 think that Mr. Burns is able to determine
18 where it's getting into his personal life
19 and where it is more a generalized knowledge
20 level.
21 This, in his view, and I certainly
22 concur, is getting into his personal life.
23 MR. HERNSTADT: Are you going to be
24 calling Mr. Burns as a witness?
25 MR. MERVIS: I don't know the answer
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2 to that, but I think it's possible.
3 MR. HERNSTADT: I think that the first
4 part of your statement is well taken. And
5 under those circumstances, I'm perfectly
6 willing to move on.
7 MR. MERVIS: Okay.
8 MR. HERNSTADT: If, however, Mr. Burns
9 is going to be called as a witness, I think
10 I'm entitled to explore his credibility and
11 develop impeachment testimony that is beyond
12 the scope of the deposition as originally
13 considered.
14 When we originally considered this
15 deposition, there was no question of your
16 using him as a witness. If he is going to
17 be a witness, then I think I'm entitled to
18 go far beyond that which I would otherwise
19 go.
20 MR. MERVIS: I hear what you're
21 saying. Collateral impeachment, there are
22 shades of gray. I think that in my view, my
23 considered view -- and I'm certainly mindful
24 of the breadth of the federal rules when it
25 comes to discovery, in my view, we have
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2 gotten to that shade of gray which is now
3 black.
4 So I'm going to maintain my
5 instruction to Mr. Burns not to answer that
6 particular question.
7 Q. How do Warez groups or VCD DivX groups
8 distribute movies on the Internet?
9 A. Can you be more specific?
10 Q. No. How do they distribute them?
11 What are the means by which they distribute them?
12 A. The simplest answer is FTP.
13 Q. Are there certain protocols that are
14 typical to Warez group in terms of agreeing to
15 send individuals movies?
16 A. The only protocol that I can say in
17 relation to this is trading.
18 Q. Do you know if it's easy to join these
19 Warez groups or difficult?
20 A. Based on my experience with the NFO
21 files in ISO News, it is trivial. All of them
22 request that you e-mail someone and you will
23 become a site operator.
24 Q. I'm sorry?
25 A. You will become a site operator.
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2 Q. What does that mean?
3 A. I assume it to mean that you will
4 serve DivX'es from your machine.
5 Q. How long do the sites stay up?
6 A. I don't know.
7 Q. Do you know what zero day is?
8 A. Yes.
9 Q. What is zero day?
10 A. Zero day refers to extremely early
11 releases.
12 Q. Do you ever get any zero day info?
13 MR. MERVIS: Do you need to talk about
14 this?
15 A. Zero day NFO files?
16 Q. No.
17 A. I'm not sure I understand the
18 question, then.
19 MR. MERVIS: Off the record.
20 (Discussion off the record.)
21 BY MR. HERNSTADT:
22 Q. Do you know how the Warez groups
23 produce movie releases?
24 MR. MERVIS: Objection to the form.
25 A. I'm not sure I understand how specific
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2 you're asking me to be.
3 Q. Quite specific.
4 MR. MERVIS: The question is does he
5 know?
6 MR. HERNSTADT: Yes.
7 MR. MERVIS: Do you know?
8 A. I can give you my best guess.
9 Q. Neither of us wants you to guess.
10 MR. MERVIS: That's fair.
11 A. Based on my observation.
12 Q. What have you observed? Why don't you
13 tell me your observation?
14 A. From discussions with various people
15 on IRC, I believe that -- can I interrupt and
16 confer?
17 Q. Of course.
18 (Discussion off the record.)
19 MR. MERVIS: I think the witness can
20 answer the question you just asked. I want
21 to be clear, because I don't want a dispute
22 about it. If the next question is going to
23 be how do you know, I'm not going to let him
24 answer that question.
25 I'm not sure what value it has for
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2 you. You are certainly free to press, but
3 anything that involves him discussing what
4 he does on the Internet is out of bounds.
5 MR. HERNSTADT: Can you read back the
6 question?
7 (Record read.)
8 A. There are people who supply DivX
9 copies of DVD movies to the Internet, and there
10 are other people who distribute those files.
11 Q. How do you know?
12 DR MR. MERVIS: Well, apart from your
13 experience with Erisol, you're certainly
14 free to testify about that. Otherwise, to
15 the extent it gets into your personal and
16 private life on the Internet, I would
17 instruct you not to answer.
18 Again, you are certainly free to talk
19 about Erisol.
20 Q. Do you have any reason to believe that
21 the "Matrix" that you got from Erisol was from a
22 DVD?
23 A. Yes.
24 Q. What?
25 A. The letter box format and quality
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2 level of the movie leads me to believe that it
3 came from a DVD.
4 Q. The letter box format being --
5 A. The fact that it is a wide screen
6 aspect ratio.
7 Q. Do you know what percentage of
8 releases on IRC channels are made from DVDs?
9 MR. MERVIS: I'm sorry. Can I have
10 the question read back?
11 A. I don't know.
12 Q. Do you know how many are screeners and
13 how many are camcorders?
14 A. Are we still referring to DivX'es?
15 Q. VCD releases, whether DivX'es or not?
16 A. VCD and DivX are different things.
17 Q. I understand. But they are both
18 available on IRC channels, right?
19 A. I can honestly say I have never gotten
20 either one of those from an IRC channel.
21 MR. HERNSTADT: Off the record.
22 (Discussion off the record.)
23 MR. MERVIS: Why don't we read back
24 the last question and have the witness
25 answer the question again? I don't think he
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2 completed it before I cut him off.
3 (Record read.)
4 A. What's the answer?
5 (Record read.)
6 A. IRC is not the transmission medium.
7 Q. Let me specify. When I say they are
8 both available, I mean they are both offered on
9 or made available in discussions on IRC channels
10 regardless of the mode of transmission?
11 A. They're offered.
12 Q. Do you know what percentage of the
13 VCDs are screeners?
14 MR. MERVIS: Do you know?
15 A. No, I don't know what percentage.
16 Q. Do you have a rough idea?
17 A. No.
18 Q. How about camcorders?
19 A. (Witness shrugging shoulders.)
20 MR. MERVIS: You have to answer.
21 A. Oh, I don't know.
22 Q. Do you know if there are more DVD
23 releases than DivX releases?
24 MR. MERVIS: Objection to form.
25 A. I don't know the proportions.
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2 Q. Let's go back to Paragraph 7. Do you
3 know if Dr. Shamos has mIRC on his computer?
4 A. I don't know.
5 Q. Do you know if he has LeechFTP on his
6 computer?
7 A. I don't know.
8 Q. Paragraph 8, you visited 2600 or you
9 downloaded the DeCSS, you don't know if
10 Dr. Shamos was there when you did it?
11 A. No, I don't know.
12 Q. Paragraph 9, is it the same? You
13 undertook this process; is that correct?
14 A. Which process?
15 Q. "The rmci link displayed a page
16 containing a link which when clicked caused a
17 file named DeCSS.zip to be downloaded"; did you
18 perform that task?
19 A. Yes.
20 Q. Do you know if Dr. Shamos was with you
21 when you did that?
22 A. I don't recall.
23 Q. You did this on or about the 22nd of
24 June; is that correct?
25 A. I did it on the 22nd of June.
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2 Q. Did you go and buy the computer on the
3 same day that the call came?
4 A. Yes.
5 Q. And you downloaded all these programs
6 on the same day the call came?
7 A. I believe so.
8 Q. Did you download Leech and mIRC the
9 same time you downloaded DeCSS?
10 A. I downloaded them in the order they're
11 described.
12 Q. How do you know it was the 22nd of
13 June?
14 A. Because that was the, I believe that
15 was the date we bought the computer.
16 Q. Is there any reason why you think it
17 is that date in particular?
18 A. In a formal reconstruction of the
19 order in which I did things.
20 Q. Do you remember what day of the week
21 it was on?
22 A. Based on the reconstruction, it was
23 Thursday. Again, this is --
24 Q. Reconstruction?
25 A. Reconstruction.
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2 Q. Were you the person who decompressed
3 the DeCSS file?
4 A. Yes.
5 Q. Do you know if Dr. Shamos was there
6 for that?
7 A. He was in his office across the hall.
8 Q. When I say was there, with you.
9 A. Behind me?
10 Q. Or watching you perform the task. So
11 he wasn't there for that part?
12 A. No.
13 Q. Who ran DeCSS on "Sleepless in
14 Seattle"?
15 A. I did.
16 Q. Was Dr. Shamos there for that?
17 A. Yes. Not the entire process. He
18 viewed a segment of it.
19 Q. How long did that take?
20 A. Approximately half hour of unattended
21 operation.
22 Q. Were you there for it?
23 A. Yes.
24 Q. Was Dr. Shamos there for the
25 initiation of the DeCSS process?
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2 A. No. He viewed the process in the
3 middle once it had already begun.
4 Q. Paragraph 12 says, "Windows'98 imposes
5 a limit on the length of disk files." Were you
6 aware of that before you began this project of
7 DeCSSing a DVD?
8 A. If I had been, I forgot.
9 Q. Was Dr. Shamos aware of that?
10 MR. MERVIS: Object to the form. You
11 can answer.
12 A. I have no idea if he was aware.
13 Q. Did you tell him Windows '98 imposes a
14 limit on file lengths?
15 A. Once I discovered that was a problem,
16 I told him that was a problem.
17 Q. Did you discover that was a problem
18 when you attempted to merge the decrypted VOB
19 files?
20 A. Yes.
21 Q. What did he say when you told him
22 that?
23 A. I don't recall.
24 Q. Whose idea was it to install Windows
25 2000?
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2 A. I believe it was mine.
3 Q. Did you talk to Dr. Shamos before you
4 installed 2000?
5 A. Yes.
6 Q. What was that conversation?
7 A. Something to the effect of, "I need
8 Windows 2000 to continue," and he told me to buy
9 Windows 2000.
10 Q. What did you do?
11 A. I bought Windows 2000.
12 Q. Where did you buy it?
13 A. The CMU computer store.
14 Q. Did you tell Dr. Shamos where you got
15 it?
16 A. Yes.
17 Q. Did you give Dr. Shamos a receipt?
18 A. I don't recall. But I'm sure I have
19 one.
20 Q. Did he pay you back for it?
21 A. No. It probably came -- oh, it came
22 from a CMU charge account, although I had the
23 receipt.
24 Q. Whose CMU charge account?
25 A. The Universal Library.
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2 Q. So the Universal Library paid for
3 the --
4 A. -- Windows 2000 copy, which belongs to
5 the Universal Library.
6 Q. How does that Windows 2000 copy belong
7 to the Universal Library?
8 A. Because it is a copy that I will
9 continue to use after the VAIO ceases to be a
10 part of what I do.
11 Q. Have you taken it off the VAIO?
12 A. No.
13 Q. Are you going to?
14 A. At some point, probably.
15 Q. Have you submitted a bill for your
16 time yet?
17 A. No.
18 Q. Have you kept track of your time?
19 A. Yes.
20 Q. How many hours have you worked on this
21 project?
22 A. Approximately 120.
23 Q. Do you know how many hours Dr. Shamos
24 has put in?
25 A. No.
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2 MR. HERNSTADT: Off the record.
3 (Discussion off the record.)
4 BY MR. HERNSTADT:
5 Q. After you loaded the Windows 2000, you
6 went back and repeated all the prior steps,
7 fetching the different files?
8 A. Correct.
9 Q. How long did that all take?
10 A. Insignificant amount of time just to
11 get all the files again.
12 Q. Then do the DeCSS again?
13 A. DeCSS again took approximately half an
14 hour again.
15 Q. And merging the VOB files?
16 A. That's a part of the half hour.
17 Q. Was Dr. Shamos present for any of the
18 repeated steps?
19 A. No. I made him aware that I was
20 conducting it, but he was not present.
21 Q. Now, Paragraph 15 says, "We next
22 converted the VOB file to DivX." Is that what
23 happened next?
24 A. Yes.
25 Q. Then you followed the steps, "(a)
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2 loaded mIRC and visited Pound DivX." How long
3 did that process take?
4 A. I double clicked on mIRC and typed
5 "\join DivX".
6 Q. I'm sorry?
7 A. I double clicked on mIRC and typed
8 "\join DivX".
9 Q. Then what happened?
10 A. I joined DivX.
11 Q. Were you already on-line at that
12 point?
13 A. No. The notebook computer was
14 on-line.
15 Q. When did you put the notebook computer
16 on-line?
17 A. I had purchased a Wavelan card when I
18 purchased Windows 2000 and I used that to get the
19 computer on-line.
20 Q. What is a wave --
21 A. Wavelan.
22 Q. A pcmcia card?
23 A. A wireless networking card.
24 Q. What is the connection speed?
25 A. Two megabits.
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2 Q. Why did you purchase a wireless
3 network card?
4 A. It was a neat toy, I needed one.
5 Q. When did you connect the computer
6 directly to the network?
7 MR. MERVIS: I object to the form of
8 the question. You can answer it if you
9 understand it.
10 A. I'm not sure I understand.
11 Q. Did you subsequently change the
12 connection so that you were not going through the
13 Wavelan card anymore?
14 A. Yes.
15 Q. Was that just before you were about to
16 trade movies?
17 A. Yes.
18 Q. We will get back to that. Who paid
19 for the wireless card?
20 A. The Universal Library.
21 Q. Where is that card now?
22 A. In the pocket of the laptop case.
23 Q. How much did the card cost?
24 A. 119 I believe.
25 Q. How much did the Windows 2000 cost?
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2 A. $20.
3 Q. $20?
4 A. We get it cheap.
5 Q. What happened when you joined Pound
6 DivX?
7 A. I observed the channel.
8 Q. When it says here the Pound DivX
9 channel topic was visit our home page at
10 FM4.org," what does that mean that the channel
11 topic was?
12 A. IRC channels have topics. It is part
13 of the IRC protocol. And the topic was something
14 to the effect of visit our home page at FM4.org.
15 Q. Is this a direct quote or is this an
16 approximation?
17 A. This is an approximation.
18 Q. Was Dr. Shamos present when you
19 connected to the IRC channel?
20 A. I don't believe so.
21 Q. How did he know to write down "visit
22 our home page at FM4.org?
23 MR. MERVIS: I object to the form of
24 the question.
25 THE WITNESS: Should I answer?
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2 MR. MERVIS: Absolutely.
3 A. I believe I paraphrased the topic when
4 explaining this process to him.
5 Q. Did you take notes of this while you
6 were doing it? "This" being the project as you
7 were going through it step-by-step.
8 A. No, I am not familiar with legal
9 proceedings and did not understand the need to
10 keep accurate records.
11 MR. MERVIS: Or not.
12 Q. No need to worry about that.
13 You then visited FM4.org; is that
14 correct?
15 A. Yes.
16 Q. What did you do when you were at
17 FM4.org?
18 A. I viewed the Tutorial and Guide to
19 Fixing Dsync.
20 Q. Did you print it out?
21 A. No.
22 Q. How many programs did you download
23 from that website?
24 MR. MERVIS: The FM4?
25 MR. HERNSTADT: Yes.
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2 A. Each program that was linked by this
3 Tutorial and Guide to Fixing Dsync.
4 Q. Do you know how many programs it is?
5 A. I think I can give you a list. It may
6 not be precise.
7 MPEG2 Avi, Graph Edit, Virtual Dubb,
8 the DivX Kodak, and Avi Frame Rate Changer.
9 That's all I can remember at this time. It may
10 be more or less.
11 Q. What program do you use to play a DivX
12 once it's been made?
13 A. Windows Media. I'm sorry. Windows
14 Media Player.
15 Q. Did that come with Windows 2000?
16 A. Yes.
17 Q. So you don't need a special DivX
18 program to play a DivX?
19 A. You need the DivX Kodak.
20 Q. So in order to play it, you need two
21 programs; at least a DivX Kodak and the Windows
22 Media Player?
23 A. Right.
24 MR. HERNSTADT: Off the record.
25 (Discussion off the record.)
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2 BY MR. HERNSTADT:
3 Q. In order to play a DivX, you need
4 Windows Media Player and the DivX Kodak?
5 A. Right.
6 Q. Do you need any of those other
7 programs that you mentioned to play the DivX once
8 it's made?
9 A. No.
10 Q. How long did that process take?
11 A. What process?
12 Q. Reviewing the Tutorial and Guide to
13 Fixing Dsync and downloading all the programs.
14 A. I don't believe I spent all the time
15 there. The majority of that was downloading
16 time.
17 Q. What is your estimation of how long
18 that took?
19 A. Less than 15 minutes.
20 Q. Was Dr. Shamos present for that?
21 A. No.
22 Q. I asked you if you printed up the
23 Tutorial and Guide to Fixing Dsync, I believe
24 your answer was no; did you download that as
25 well?
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2 A. The site?
3 Q. Yes. Did you make a copy of the site
4 for yourself in some form?
5 A. Yes.
6 Q. You downloaded it as a file?
7 A. I took screen shots.
8 Q. Did you save the screen shots?
9 A. I took screen shots later when
10 preparing exhibits.
11 Q. Did you make any record of it that you
12 can refer to when you were doing the DivX
13 process?
14 A. Not at that point, no. I don't recall
15 the exact date of the screen shots. It is
16 probably on the screen shots themselves.
17 Q. When you DivX'ed the movie, were you
18 working from any sort of guide or set of
19 instructions?
20 A. I was working from the instructions on
21 the site of FM4.org.
22 Q. Were you referring to it on the
23 website while you were making the DivX?
24 A. Yes.
25 Q. Were you referring to it on the
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2 website on a different computer?
3 A. No.
4 Q. So you were on-line at FM4.org and at
5 the same time you were on the same computer you
6 were making the DivX?
7 A. Right.
8 Q. How long did it take you to DivX the
9 movie?
10 A. A very general estimate I have given
11 is 20 hours, including the time to review the
12 Tutorial and Guide to Fixing Dsync.
13 Q. Of the 20 hours, reviewing the
14 Tutorial and Guide to Fixing Dsync was ten,
15 fifteen minutes?
16 A. Again, my best guess. I didn't keep
17 records.
18 Q. Did you do it straight through or in
19 pieces?
20 A. Absolutely not. I did it in chunks.
21 Q. Was Dr. Shamos present for any part of
22 the DivX'ing of the movie?
23 A. Dr. Shamos -- I showed Dr. Shamos
24 several intermediate results.
25 Q. What does that mean specifically?
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2 A. It means I showed him the video with
3 audio, I showed him the VOB file, I may have
4 played him the audio track.
5 Q. Did you set the compression for the
6 DivX?
7 A. Yes.
8 Q. Did you choose the resolution?
9 A. No. The resolution was chosen by the
10 reset given with MPEG2 Avi.
11 Q. Did you pick how many frames per
12 second?
13 A. No.
14 Q. Was that all preset?
15 A. That was all preset by MPEG2 Avi.
16 Q. What were the optional settings that
17 you chose in doing the DivX process?
18 A. Video bit rate, video Kodak type,
19 audio sampling rate and audio bit rate.
20 Q. What did you set those at?
21 A. I believe I set video bit rate to 858
22 kilobits per second; video Kodak type to low
23 motion. I don't recall whether I used 48
24 kilohertz or 44.1 -- I'm sorry. Yes. 44.1
25 kilohertz. And I used 128 kilobit rate for the
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2 audio.
3 Q. Why did you pick 858 kilobits per
4 second for the video bit rate?
5 A. The frame rate calculator included
6 with MPEG2 Avi indicated that to be the optimal
7 point.
8 Q. For that particular movie?
9 A. For a movie of that particular length.
10 Q. What was the size of the file you
11 hoped to achieve at the end of the DivX process?
12 A. I made an error in assuming that the
13 858 was the intended video bit rate. Instead, it
14 was the intended bit rate of the entire file.
15 Had I done the entire file, audio plus video at
16 858, the result was likely to be 650 megabytes.
17 Q. So in order to have done that, you
18 would have had to have done the video bit rate at
19 730 or something like that, 730 kilobits per
20 second?
21 A. Yes, 730 kilobits per second.
22 Q. You said a very general estimate of
23 the time, total time was 20 hours. Could it have
24 been 25 hours?
25 MR. MERVIS: I object to the form.
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2 You can answer.
3 A. I don't believe so. I believe that's
4 an excessive estimate. Furthermore, that
5 estimate was based on the notion that if someone
6 said to me, Make a DivX starting now, I could
7 give a product in 20 hours as a novice.
8 Q. Did you consider yourself to be a
9 novice when you made this DivX?
10 A. Absolutely.
11 Q. Did you think that any of your class
12 work, as a dual IDS and CM major at CMU, prepared
13 you for the process of making a DivX?
14 A. Yes. Multimedia Information
15 Processing had me use a DOLBY premiere to create
16 a trailer from a long video. And that was some
17 video editing work that I had done for that
18 course. Most other experience in this area was
19 gained through the Universal Library.
20 Q. When you say "novice," do you mean
21 this was the first time you made a DivX?
22 A. Correct.
23 Q. Who removed the opening trailer of the
24 film to assist in the Dsync process?
25 A. I did.
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2 Q. Was Dr. Shamos present during any of
3 that?
4 A. I informed him it would be necessary.
5 Q. You can just tell me if he was present
6 or not. If you then want to tell me you informed
7 him of something.
8 A. I'm sorry.
9 Q. I'm not criticizing. It is just
10 easier that way.
11 MR. MERVIS: He is suggesting a
12 procedure, and it's fine.
13 Q. To make the record clear. Because
14 then I get the answer and if you have something
15 to clarify.
16 A. No, he was not present.
17 Q. Was Dr. Shamos present when you
18 selected any of the four optional speeds --
19 A. No.
20 Q. -- that you mentioned? Did you finish
21 the project on or about Tuesday, June 27th at
22 10:57 and six seconds p.m.?
23 MR. MERVIS: Do you have a document?
24 It is fairly precise.
25 Q. I'm referring to Burns Exhibit 1, and
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2 I'm looking at the screen shot for Sleepless in
3 Seattle.avi?
4 A. That sounds right.
5 Q. What did you do then?
6 A. Then I proceeded to go on IRC to
7 attempt to trade that.
8 Q. When did you tell Dr. Shamos that you
9 had completed the DivX process and you came with
10 a successfully synchronized copy? Quoting
11 Paragraph 19.
12 A. I don't recall that specifically.
13 Q. Did you tell him that night or did you
14 tell him the next morning?
15 A. I believe it was the next morning.
16 Q. Were you on-line in the general IRC
17 channel during this whole process?
18 A. No. Because it was completed over
19 days.
20 Q. When you were at FM4.org, you couldn't
21 simultaneously --
22 A. Yes, I could.
23 Q. Did you switch back and forth? The
24 difference is different ports; is that correct?
25 A. You just switch different programs.
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2 Q. I'm looking at Paragraph 20 of
3 Dr. Shamos' declaration. Was he present for any
4 part of the IRC conversation?
5 A. No.
6 MR. MERVIS: I assume you are
7 referring to the one that is set forth in
8 the declaration?
9 MR. HERNSTADT: The one set forth in
10 the declaration.
11 Q. Looking at the session start and the
12 session close, it is fair to say that that
13 discussion took about 27 minutes?
14 MR. MERVIS: I object to the form of
15 the question. You can answer if you
16 understand?
17 A. The close of the log may not have been
18 the same time as the end of the conversation.
19 Q. What would account for the difference
20 in time?
21 A. I left the window open and closed it
22 later, that would account.
23 Q. When you say "the window," are you
24 talking about the window of the personal chat
25 between you and Erisol?
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2 A. Yes.
3 Q. Had you spent any time on an IRC
4 channel as VaioBoy prior to 11/15 on June 27?
5 MR. MERVIS: You can answer that yes
6 or no.
7 A. No.
8 Q. Was this the first time you used the
9 nick VaioBoy?
10 A. Yes.
11 Q. You can answer the big question I have
12 on this. In the middle of the discussion, Erisol
13 says, "Let me make you an account on my FTP and
14 let's go down," do you see that?
15 A. Yes.
16 Q. Let's go to the middle where it says,
17 "Do you have a static IP?" What's a static IP?
18 A. Static IP is an IP that is assigned to
19 your computer and only your computer. It
20 corresponds to a dynamic IP -- it is not the
21 opposite of, but it is not like a dynamic IP
22 where you get an IP address every time you start
23 your computer and it may or may not be different.
24 Q. Is the IP address the computer or is
25 it the network switch that comes out of it?
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2 A. It is the network connection of the
3 computer.
4 Q. The network connection. So you can
5 put any computer on it and that would be the same
6 IP address?
7 A. Correct.
8 Q. How did you switch over from one
9 interface to another interface without
10 terminating the IRC conversation?
11 A. I did terminate the IRC conversation.
12 Q. Is that indicated in there?
13 A. mIRC, if you lose your connection,
14 stays open. What basically happened was that I
15 stopped one network card, put in another one,
16 started it and hit the connect button IRC, and as
17 soon as I had done that, I was back on. mIRC
18 didn't see a difference, and thus didn't close
19 the window for this.
20 Q. So where you say, "Hold on, let me
21 switch over to that," the "that" is the static
22 IP?
23 A. Yes.
24 Q. You say, "I have two net interfaces,"
25 what was the second net interface?
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2 A. The second net interface is a three
3 com. Model number escapes me, ten megabit PC
4 card.
5 Q. So you have two net interfaces on the
6 same computer?
7 A. Correct.
8 Q. Was it the same network connection or
9 were you actually changing network connections?
10 A. One was wireless, one was ten megabit.
11 Q. The wireless card you said was in your
12 computer?
13 A. Uh-huh.
14 Q. And the ten megabit, is that also in
15 your computer?
16 A. Yes.
17 Q. Is that a card or a built-in?
18 A. It is a card. I have two slots, one
19 for each network interface.
20 Q. Do you keep them both in your computer
21 at the same time?
22 A. Depends on what I'm doing.
23 Q. Were you switching interfaces or were
24 you switching network connections?
25 A. I don't see a distinction between the
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2 two as far as this conversation is concerned.
3 Q. Good point. What I mean is: Were you
4 switching interfaces or were you switching IP?
5 A. I switched both. The wireless has a
6 different IP from the ten megabit.
7 Q. In this case, is the IP the network
8 connection coming off the network or is it the
9 network connection going into the computer?
10 A. I completely don't understand.
11 Q. I am confused, too. I'm seeking
12 clarification. Static IP you said is an address
13 that is assigned to a particular network
14 connection?
15 A. Right.
16 Q. I take it by that the network
17 connection is essentially the cable that comes
18 out of the wall?
19 A. No.
20 Q. What is the network connection you are
21 talking about?
22 A. I'm talking about the connection from
23 the operating system to the network as a whole.
24 And that connection is the ten megabit ethernet
25 part.
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2 Q. So the network connection is actually
3 the card as opposed to the card going into the
4 wall? When I say "wall," I mean the ethernet.
5 A. It is somewhat inaccurate to call the
6 cable itself the connection.
7 Q. I am saying, is the card the
8 connection?
9 A. Yes. The card.
10 Q. If they are both cards, why is one
11 static and one is not?
12 A. The IP address of the wavelength is
13 assigned by a CHCP, which is a protocol that will
14 give me dynamic IP addresses for the wavelength.
15 So not only is the wavelength slower, less value
16 for this, it is not as useful because it is not a
17 static IP.
18 Q. Do you have a hundred megabit card
19 for --
20 A. No, I don't anymore.
21 Q. Do you have a desktop computer in your
22 office?
23 A. Yes.
24 Q. Does that have a hundred megabit
25 interface?
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2 A. Yes.
3 Q. So you just switch from one card to
4 another?
5 A. Yes.
6 Q. Did you switch after you gave him the
7 static IP address?
8 A. The switch occurred at my nick change.
9 Q. Was that a back-up nick you gave when
10 you logged on as VaioBoy?
11 A. When I got on IRC, I needed some
12 arbitrary nickname so I made two up, one to fall
13 back on. The fall back is VaioKid.
14 Q. What time did you start the exchange
15 of movies?
16 A. I can only assume it was between 11:15
17 and 11:42. Based on this log, it was once I
18 said, "We are getting pretty good rates."
19 Q. What was the rate you were getting?
20 A. Something around 40 kilobytes per
21 second.
22 Q. Was that the rate of the upload or was
23 that the rate of the download or both?
24 A. Both. That's why it is good.
25 Q. Is it also the case the upload and
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2 download go at the same rate?
3 A. No.
4 Q. Typically the upload is slower than
5 the download?
6 A. It is based entirely on the network
7 interfaces of both parties.
8 Q. Did Erisol ever tell you what his
9 interface net was?
10 A. Once I saw the IP4 IP address, I
11 assumed it to be a cable modem.
12 Q. Why is that?
13 A. Every IP4 address I have ever seen is
14 a cable modem.
15 Q. Have you ever done a trace route on
16 the address that is here, on Erisol's address?
17 A. I have.
18 Q. What did you find out?
19 A. I don't recall because I closed it a
20 few seconds later not caring that much.
21 Q. Did you find out what his cable
22 provider was?
23 A. I believe it was At Home, but don't
24 hold me to that.
25 Q. It was. I will represent to you that
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2 it was. Do you know what the cable speeds of At
3 Home are, the transfer speeds?
4 A. To my knowledge, they vary based on
5 region of deployment.
6 Q. Do you know if there is any upload
7 limit of At Home as a general policy?
8 A. As a general policy, I'm not aware. I
9 know of particular At Home policies where the
10 upload rate is limited to 128 kilobits per
11 second.
12 Q. What is that particular policy?
13 A. It seems to vary by region.
14 Q. Did that 40 kilobit --
15 A. Kilobytes.
16 Q. Kilobyte or kilobit?
17 A. 40 kilobytes.
18 Q. So you are getting about 320 kilobits?
19 A. Correct. Give or take. I don't know
20 the exact number.
21 Q. Did that stay constant for the entire
22 transfer?
23 A. No. Because I didn't observe the
24 whole transfer.
25 Q. How much of the transfer did you
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2 observe?
3 A. I observed the first few minutes and
4 checked it every so often as I was doing other
5 work.
6 Q. How long were you in the office that
7 night?
8 A. I don't recall.
9 Q. Did you leave before the transfer was
10 completed?
11 A. Yes.
12 Q. When did you get back?
13 A. The next morning fairly early, but I
14 don't know the precise time.
15 Q. Do you know the order in which the
16 transfers were completed?
17 A. No.
18 Q. Was the "Matrix" download completed
19 before the "Sleepless in Seattle" upload?
20 A. I don't know for sure.
21 Q. Do you know if the transfer was
22 symmetric the entire time?
23 A. Based on my observation, it was. And
24 I don't recall seeing error messages as far as
25 time-outs or incompletes go. Although I didn't
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2 check very slowly.
3 Q. How long do you think the transfer
4 took?
5 A. Based on the fact it was around 40K
6 per second, I gave a conservative estimate it was
7 about six hours. Although that does not compute
8 precisely based on 40K per second.
9 Q. Do you typically talk about transfer
10 speeds in kilobytes or kilobits?
11 A. Nobody talks about transfer speeds in
12 kilobit. Bit rates and network interface rates
13 are always described in bits or megabits for no
14 particular reason that I can give, that I know
15 about.
16 Q. That's like the manufacturer's specs?
17 When I say "manufacturer's specs," I mean is that
18 how ethernet interfaces and ethernets are rated
19 in terms of speed?
20 A. Network interfaces always will be
21 rated in terms of some order of bit. And
22 transfer rate and file sizes always seem to be
23 some order of bite.
24 Q. Transfer rate is something that is
25 specific to each transfer?
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2 A. Correct.
3 Q. How do you determine what the transfer
4 rate was?
5 A. LeechFTP shows me.
6 Q. How long were you around in the office
7 after you commenced the trade?
8 A. I tend to keep late hours. It may
9 have been an hour, it may have been three hours.
10 I don't remember precisely.
11 Q. When you say you were back early the
12 next morning, does that mean 7:00, does that mean
13 10:00? Do you know?
14 A. It is fair to say some time between
15 those two. I don't remember.
16 Q. This is June 27th, June 28th. Do you
17 have any particular recollection?
18 A. I remember working fairly early that
19 week, but no, I don't remember the precise time I
20 came in to work.
21 Q. When did you tell Dr. Shamos you
22 executed a trade?
23 A. I believe it was that morning when I
24 came in.
25 Q. Was he already in the office?
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2 A. I don't recall.
3 Q. Did you view the "Matrix" with him?
4 A. Yes.
5 Q. Did you view the entire movie?
6 A. No.
7 Q. When I say you, I meant you
8 personally. Have you viewed the entire movie?
9 MR. MERVIS: The one that was traded
10 for?
11 Q. Yes.
12 A. I don't believe I viewed the entire
13 movie.
14 Q. Has Dr. Shamos viewed the entire
15 movie?
16 A. No.
17 Q. How much of it did he view with you?
18 A. Several minutes at various points in
19 the film.
20 Q. Do you know what portion of the film?
21 A. The scene we showed in court. The
22 first probably half hour. Just many different
23 segments of the movie. We were skipping around
24 to demo the quality and to confirm the file was
25 complete.
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2 Q. Were you viewing it on the VAIO?
3 A. Yes.
4 Q. Did you ever view it through a monitor
5 with greater resolution?
6 A. Yes. Before I went to court, I tested
7 it on a better quality monitor.
8 Q. What monitor did you test it out?
9 A. I believe it is some sort of Princeton
10 Graphics model. It was in a store.
11 Q. Did that change your perception of the
12 quality of the DivX?
13 MR. MERVIS: I object to the form.
14 I'm not sure there has been any testimony
15 what his perception was in the first place.
16 In any event, you can answer if you
17 understand.
18 A. It reaffirms my belief that DivX is a
19 very high quality Kodak.
20 Q. Did you see more artifacts on the
21 higher quality monitor?
22 A. I don't now.
23 Q. You don't know or you don't recall?
24 A. I don't know if I saw more or not.
25 Q. Did you see artifacts on the laptop?
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2 A. Artifacts exist, I didn't check an
3 exact comparison whether I could see them on once
4 versus another.
5 MR. MERVIS: Off the record.
6 (Discussion off the record.)
7 BY MR. HERNSTADT:
8 Q. When did you perform the experiment in
9 Paragraph 22?
10 MR. MERVIS: I object to the form.
11 You can answer.
12 Q. Which is using the "ten megabit LAN
13 file transfer"?
14 MR. MERVIS: I still object to the
15 form.
16 A. Most likely some time during that day.
17 Q. How did you measure the time of
18 transfer?
19 A. Again informally, I plugged in the
20 network connection to the ten megabit interface
21 on the VAIO notebook, and I used Windows file
22 sharing to copy it to another system in my
23 office. After the transfer rate appeared to
24 stabilize, I observed that it said 20 minutes
25 remaining. I'm sorry. That's not accurate.
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2 I observed it said something less than
3 20 minutes remaining and guessed 20 as a
4 conservative estimate.
5 Q. When did you do the 100 megabit
6 transfer?
7 A. Most likely immediately afterwards. I
8 know one other time with Mike Shamos present.
9 And I did that using FTP to transfer from one of
10 my systems to another system.
11 Q. In your same office?
12 A. Same office, although connected to the
13 same switch as Mike.
14 Q. I'm sorry. Connected to the same
15 switch as Mike?
16 A. Yes.
17 Q. What does that mean?
18 A. That means, that's to clarify this is
19 not in same hub in my office. The fact that my
20 computers are next to each other has no bearing
21 on their network proximity.
22 Q. Do you know if from one computer to
23 the next, it went through a hub?
24 A. Yes, I know it went through a hub.
25 Q. What hub did it go through?
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2 A. It went through the -- it went
3 through the floor switch.
4 Q. What's the speed of the floor switch?
5 A. I believe it's 100 megabits, although
6 I can't confirm that it is actually a switch.
7 But I know that I shared it with Mike.
8 Q. So it is a shared switch?
9 A. Shared in the sense that the piece of
10 equipment is connected by both Mike and myself.
11 Although I don't know its designation.
12 Q. Was Mike transferring anything at the
13 same time you did that?
14 A. I don't know.
15 Q. How about the time he was in your
16 office, was he transferring something at the
17 time?
18 A. He may have been. Although he was in
19 front of his computer if he was.
20 Q. Did you ask him?
21 A. No.
22 Q. Did he tell you?
23 A. No.
24 Q. How did you measure the three minutes
25 transfer on the 100 megabit LAN?
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2 A. That was from observing the transfer
3 rate given in LeechFTP.
4 Q. What was the transfer rate?
5 A. Somewhere in the range of three to
6 3.5.
7 Q. That was on the 100 megabit LAN?
8 A. That was on the 100 megabit LAN.
9 Q. You were getting --
10 A. -- between three to 3.5 megabytes per
11 second.
12 Q. When you say three to 3.5, do you give
13 a range because --
14 A. -- because it fluctuated.
15 Q. Did you use three megabits per second
16 to do the calculation?
17 A. Three megabytes. I didn't do the
18 calculation based on average rate. Again, three
19 minutes is not a calculation so much as an upper
20 bound of what I would expect if I did it under
21 the same conditions every time I did it.
22 Q. Can you explain that a little more
23 clearly?
24 A. I did not record a precise transfer
25 time. I eyeballed it and gave something that
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2 appeared to be an upper bound of the transfer
3 rate.
4 Q. When you say "upper bound," do you
5 mean a conservative estimate?
6 A. An estimate in the sense that the
7 actual transfer time that we observed was less
8 than three minutes. Although it may have been
9 exactly three minutes.
10 Q. Do you know, would you get the same
11 file transfer time if you transferred it from
12 your office to a dorm room?
13 A. I know that it would get ten megabit
14 transfer time because dorms are ten megabits.
15 Q. I'm sorry. Let me clarify. The ten
16 megabit LAN. Would you be able to transfer the
17 same file from your office to a dorm room in less
18 than 20 minutes?
19 A. Yes.
20 Q. What was the transfer rate that you
21 got on the ten megabit LAN?
22 A. I didn't record the precise transfer
23 rate because it is Windows file sharing which
24 doesn't give you a file transfer rate.
25 Q. This was the "Matrix" file that you
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2 were transferring?
3 A. Yes.
4 Q. So it is about --
5 A. 600 megabytes. If you use the 578
6 that's the division by 1024 twice of the actual
7 file count. So if you -- computer scientist
8 argue, not from a scientific perspective, but
9 just argue what is 600 megs or what is 578 megs.
10 Q. It is not necessarily 600 megs?
11 A. It is safe to say it is a 600 megabyte
12 file.
13 Q. But what that means in terms of the
14 actual number of bytes --
15 A. No. The number of bytes and the
16 number of bits is quite well-known. The question
17 is: Is it more accurate to say 578 megabytes or
18 600 megabytes? Is just a matter of what you
19 decide to say or what you believe.
20 (Whereupon, a recess was taken from
21 10:12 p.m. to 10:35 p.m.)
22 BY MR. HERNSTADT:
23 Q. Is Dr. Shamos still practicing law?
24 A. I don't know.
25 Q. Is he full-time at Carnegie Mellon?
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2 A. Is he full-time?
3 Q. Yes.
4 A. Yes.
5 Q. When you went to 2600 to find that
6 DeCSS, was that the first time you visited 2600?
7 A. No.
8 Q. Is that the first time you visited
9 since this case began?
10 A. Yes.
11 MR. HERNSTADT: I have nothing
12 further. Thank you very much, Mr. Burns.
13 MR. MERVIS: I have a little bit. I
14 will try to work as quickly as I can.
15 EXAMINATION BY
16 MR. MERVIS:
17 Q. With reference to Mr. Shamos'
18 declaration which is Trial Exhibit 121. Is it
19 correct that the activities described between
20 Paragraph 7 up to Paragraph 18 that you, that
21 your estimate --
22 MR. HERNSTADT: I have a couple more
23 questions.
24 MR. MERVIS: Can I do this?
25 MR. HERNSTADT: Yes.
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2 Q. Up to Paragraph 18, your estimate is
3 it took about 20 total hours; is that right?
4 A. No. My estimate for the 20 hours was
5 the creation of the DivX.
6 Q. Was the creation of the DivX?
7 A. Yes. Nine starts with DeCSS.
8 Q. The DeCSS, that took you, what, how
9 long?
10 A. Half an hour.
11 Q. So the 20 hours for the DivX, I
12 believe you testified that it wasn't 20 straight
13 hours, you did it in shots?
14 A. Absolutely not. I did it in shots.
15 Q. Of the 20 hours, what is your estimate
16 as to how much time you spent either looking at
17 or operating your computer in connection with the
18 DivX'ing?
19 A. This is a rough estimate. But to be
20 very, very generous, less than two hours was
21 spent actually in front of the computer.
22 Q. During the time that the DivX'ing was
23 going on, were you able to perform other
24 functions on that same machine?
25 A. Absolutely.
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2 Q. If you were to repeat this process
3 today, if you were asked to DivX an unencrypted
4 DVD, do you believe you could complete the task
5 in less than 20 hours?
6 MR. HERNSTADT: Objection. Calls for
7 speculation.
8 Q. You can answer.
9 A. Yes, I believe I can do it in less
10 than 20 hours.
11 Q. Why do you believe that?
12 A. Because much of the 20 hours was due
13 to fail runs of long, uninterruptible processes
14 that produced undesirable results.
15 Q. Do you think you would avoid those
16 failures?
17 A. Yes.
18 Q. You've learned from your mistakes,
19 sort to speak?
20 A. I'm more familiar with the tools.
21 Q. When you download DivX movies from the
22 Internet, are you able to perform other functions
23 on your machine?
24 A. Yes.
25 MR. HERNSTADT: Objection to form.
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2 Assumes facts not in evidence.
3 Q. While you were in your office that
4 night downloading the Erisol file, did you
5 perform other functions on that same machine?
6 A. Yes.
7 Q. In order words, you were able to
8 multi-task on that machine, the machine was not
9 tied up with that one specific task?
10 A. Correct.
11 Q. As I understand it, Dr. Shamos was not
12 present during every step that's described in his
13 affidavit; is that correct?
14 A. That's correct.
15 Q. Did you report to Dr. Shamos about
16 your progress on a regular basis during the steps
17 that are described between Paragraph 7 and 22 of
18 Dr. Shamos' declaration?
19 A. At any point where I had a work
20 product that was worthy of his attention or
21 required some input from him, I contacted him.
22 Furthermore, I contacted him whenever I had any
23 intermediate step that might be interesting for
24 him to see.
25 Q. You had burned several CDRs from your
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2 VAIO machine; is that correct?
3 A. That's correct.
4 Q. And you have burned both the
5 "Sleepless in Seattle" unencrypted DivX file that
6 you created, and the "Matrix" file that was given
7 to you by Erisol; is that correct?
8 MR. HERNSTADT: Objection to form.
9 A. The "Sleepless in Seattle" that I
10 burned to a CD was a truncated version that was
11 small enough to put on a CD. It was missing the
12 last section of the movie and it was around 600
13 megabytes. The other copy is the "Matrix" which
14 is an exact copy of what was on the hard drive.
15 Q. Did any of the copies that you've
16 burned on to a CD for the Proskauer firm come
17 from any source other than the hard drive of your
18 VAIO computer?
19 A. The "Matrix" went from the hard drive
20 to the CD ROM, but I got the "Matrix" from the
21 Internet.
22 Q. With respect to "Sleepless in
23 Seattle"?
24 A. That came from my hard drive.
25 Q. You mentioned that you believe that
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2 the movie you got from Erisol was sourced from a
3 DVD because it had letter box format and based on
4 the quality of the movie; is that correct?
5 A. That's correct.
6 Q. Why did those things lead you to
7 believe that the source of that movie was a DVD?
8 MR. HERNSTADT: Objection to form.
9 Q. You can answer.
10 A. Based on my informal comparisons of
11 DVD and VHS videos, and my assumption that the
12 "Matrix," maybe incorrect, the "Matrix" is
13 not -- I'm not going to get on that route.
14 MR. HERNSTADT: Let me ask you, are
15 you going to make Mr. Burns an expert?
16 MR. MERVIS: No. I'm asking him for
17 his opinion based on his experience.
18 A. Based on my viewing of the "Matrix"
19 and my viewing of the "Matrix" DVD, they are so
20 close to being similar that it is my guess that
21 the "Matrix" DivX comes from the DVD through the
22 DivX process.
23 Q. Is one of those similarity the letter
24 box format?
25 A. One of those similarity is the letter
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2 box format.
3 Q. Mr. Hernstadt asked you some questions
4 about software you downloaded based on
5 instructions on the FM4.org site?
6 A. Correct.
7 Q. Did you download DeCSS based on
8 instructions from the FM4.org site?
9 A. Yes. Although I continue to the use
10 the DeCSS that I obtained through the rmci site
11 given at 2600.com.
12 FURTHER EXAMINATION BY
13 MR. HERNSTADT:
14 Q. How many other DivX have you made
15 since you made the "Sleepless in Seattle" DivX?
16 A. None.
17 Q. Did you make another version of
18 "Sleepless in Seattle"?
19 A. Can you be more specific.
20 Q. Did you make another DivX of
21 "Sleepless in Seattle"?
22 A. I made an incomplete low bit rate test
23 to see how low the quality sliding came for DivX
24 went.
25 Q. Was that a complete movie?
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2 A. A small segment of a VOB file.
3 Q. Did you make a DivX of any of the
4 other DVDs that you bought?
5 A. No.
6 Q. What did you do with those DVDs?
7 A. I believe I still have them in the
8 general area where I keep my work for this case.
9 Q. Did you get them to conduct further
10 experiments?
11 A. That was the extent.
12 Q. Why didn't you do this?
13 A. Time constraints.
14 Q. Did Dr. Shamos know you intended to
15 make further DivX'es?
16 A. I believe he told me they were not
17 important right now.
18 Q. Was the sync process a difficult
19 process?
20 A. It was not difficult. It was time
21 consuming.
22 Q. That's actual time in front of the
23 computer?
24 MR. MERVIS: Objection to the form of
25 the question.
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2 A. No. It was time consuming in the
3 sense that I would perform some trivial effort to
4 start a long process, walk away from the process,
5 come back and continue this over successive
6 iterations of a file.
7 Q. Then you test it to see if it worked?
8 A. I would test it to see if it worked.
9 Q. If it didn't work, you would start
10 over again?
11 A. I didn't start over. It is a
12 constantly improving process once you begin that
13 gives you a closer and closer synchronization.
14 Q. How many tries did it take you to get
15 it?
16 A. I don't recall specifically.
17 Q. More than a dozen?
18 A. Once I refined the Dsync'ing process I
19 was using to a few minutes a file, I did about a
20 dozen test to get the precise timing correct.
21 Q. When you say once you refined --
22 A. I did the first file with -- let's
23 back up. I made one additional long pass that
24 resulted in a emergency synchronized file, and
25 then I made short passes over short sections of
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2 the file which speeded up the process and gave me
3 fewer long attended steps.
4 Q. Was that in the instructions?
5 A. Yes, it was.
6 Q. How come you didn't do it the first
7 time?
8 A. Because the first time I believed
9 that -- how do I figure this out? The first time
10 I believed I had done it right. I believe that I
11 had done it right and it would take no further
12 effort.
13 Q. What else were you doing on the VAIO
14 when you were doing the DivX, and the synch and
15 unload and download?
16 A. During the actual accumulation parts,
17 I was doing that interaction. During the
18 unattended processes, I would check e-mail,
19 browse the web, write programs, use network
20 applications.
21
22
23 (Continued on next page to include jurat.)
24
25
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2 Q. Why were you doing that on the VAIO
3 instead of one of your desktop computers?
4 A. Because I'm lazy and didn't want to
5 move my chair.
6 MR. HERNSTADT: That's it. Thank
7 you.
8 (Time noted: 10:42 p.m.)
9
10 __________________________
11 ERIC L. BURNS
12
13
14
15 Subscribed and sworn to before me
16 this _____ day of ________, 2000.
17 __________________________
18 NOTARY PUBLIC
19
20
21
22
23
24
25
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1
2 C E R T I F I C A T E
3 STATE OF NEW YORK )
4 : ss.
5 COUNTY OF NEW YORK )
6
7 I, MAYLEEN CINTRON, a Shorthand
8 Reporter and Notary Public within and for
9 the State of New York, do hereby certify:
10 That ERIC L. BURNS, the witness whose
11 deposition is hereinbefore set forth, was
12 duly sworn by me and that such deposition is
13 a true record of the testimony given by the
14 witness.
15 I further certify that I am not
16 related to any of the parties to this action
17 by blood or by marriage, and that I am in no
18 way interested in the outcome of this
19 matter.
20 IN WITNESS WHEREOF, I have hereunto
21 set my hand this 18th day of July, 2000.
22
23 __________________________
MAYLEEN CINTRON
24
25
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2 -------------------- I N D E X ------------------
3 WITNESS EXAMINATION BY PAGE
4 E. Burns Mr. Hernstadt 4
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6 REQUESTS: PAGE 34
7 DIRECTIONS: PAGE 53, 58
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9 ---------------- E X H I B I T S ----------------
10 EXHIBITS: FOR I.D.
11 Burns Exhibit 1, 3pp screen shots............ 27
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INTERIM COURT REPORTING
(212) 490-3430