1
 
 
         1
 
         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
 
        18
 
        19
 
        20
 
        21
 
        22
 
        23
 
        24
                Reported by:
        25      MAYLEEN CINTRON
 
 
 
 
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         1
 
         2
 
         3                            July 18, 2000
 
         4                            7:41 p.m.
 
         5
 
         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.
 
        12
 
        13
 
        14
 
        15
 
        16
 
        17
 
        18
 
        19
 
        20
 
        21
 
        22
 
        23
 
        24
 
        25
 
 
 
 
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         1
 
         2      A P P E A R A N C E S:
 
         3
 
         4           PROSKAUER ROSE, LLP
 
         5           Attorneys for Plaintiffs
 
         6                 1585 Broadway
 
         7                 New York, New York 10036-8299
 
         8           BY:   MICHAEL T. MERVIS, ESQ.
 
         9
 
        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.
 
        15
 
        16                             o0o
 
        17
 
        18
 
        19
 
        20
 
        21
 
        22
 
        23
 
        24
 
        25
 
 
 
 
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         1
 
         2
 
         3           F E D E R A L    S T I P U L A T I O N S
 
         4
 
         5
 
         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.
 
        10
 
        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.
 
        17
 
        18                             o0o
 
        19
 
        20
 
        21
 
        22
 
        23
 
        24
 
        25
 
 
 
 
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         1
 
         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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         1                         Burns
 
         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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         1                         Burns
 
         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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         1                         Burns
 
         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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         1                         Burns
 
         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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         1                         Burns
 
         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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         1                         Burns
 
         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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         1                         Burns
 
         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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         1                         Burns
 
         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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         1                         Burns
 
         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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         1                         Burns
 
         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
 
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                              INTERIM COURT REPORTING 
                                  (212) 490-3430 
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         1
 
         2      -------------------- I N D E X ------------------
 
         3      WITNESS            EXAMINATION BY           PAGE
 
         4      E. Burns           Mr. Hernstadt              4
 
         5
 
         6      REQUESTS:   PAGE   34
 
         7      DIRECTIONS: PAGE   53, 58
 
         8
 
         9      ---------------- E X H I B I T S ----------------
 
        10      EXHIBITS:                                FOR I.D.
 
        11      Burns Exhibit 1, 3pp screen shots............ 27
 
        12
 
        13                             o0o
 
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                              INTERIM COURT REPORTING 
                                  (212) 490-3430