1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 UNIVERSAL CITY STUDIOS, INC., et al, 4 Plaintiffs, 5 v. 00 Civ. 277 (LAK) 6 SHAWN C. REIMERDES, et al, 7 Defendants. 8 ------------------------------x 9 July 18, 2000 10 9:00 a.m. 11 Before: 12 HON. LEWIS A. KAPLAN, 13 District Judge 14 APPEARANCES 15 PROSKAUER, ROSE, L.L.P. Attorneys for Plaintiffs 16 BY: LEON P. GOLD CHARLES S. SIMS 17 CARLA MILLER SCOTT P. COOPER 18 MICHAEL MERVIS 19 FRANKFURT, GARBUS, KLEIN & SELZ Attorneys for Defendants 20 BY: MARTIN GARBUS ERNEST HERNSTADT 21 DAVID ATLAS 22 23 24 25 205 1 (Trial resumed; in open court) 2 THE COURT: Good morning, everyone. 3 MR. GOLD: Good morning. 4 THE COURT: Are we taking Mr. Stevenson out of turn? 5 MR. GARBUS: Yes, your Honor. 6 MR. HERNSTADT: Yes, your Honor. The defendants call 7 Frank Stevenson. 8 FRANK STEVENSON, 9 called as a witness by the defendants, 10 having been duly sworn, testified as follows: 11 DEPUTY COURT CLERK: State your name for the record. 12 THE WITNESS: My name a Frank Andrew Stevenson. 13 THE COURT: You may proceed, Mr. Hernstadt. 14 DIRECT EXAMINATION 15 BY MR. HERNSTADT: 16 Q. Mr. Stevenson, where do you live? 17 A. I live in Oslow, Norway. 18 Q. What is your present employment there? 19 A. I do work as a programmer in the research department at 20 FunCom. 21 THE COURT: For what? 22 THE WITNESS: The research department. 23 THE COURT: That was the part I understood. 24 THE WITNESS: FunCom, F-U-N-C-O-M. 25 Q. What kind of company is FunCom? 206 1 A. FunCom is a games producer. We are in fact the largest 2 games producer in Norway and one of the largest games 3 producers worldwide, the largest independent, I should say. 4 Q. What is your position there? What is your title? 5 A. My title there is head of R&D, research and development. 6 I am in charge of directing efforts into research to determine 7 which areas of research would be fruitful to devote to 8 efforts, and also I do the research myself. 9 Q. Do you have any responsibilities with respect to security? 10 A. I frequently get involved when security questions are 11 brought up. Our company will do online payments through our 12 website, and in this respect I have been part of reviewing the 13 security of the website. 14 Q. Could you tell the Court something about your background 15 with computers. 16 A. I started programming at the age of 12. My father taught 17 me how to write my own programs, and I have been programming 18 ever since. I have programmed through learning a number of 19 programming languages, started out with BASIC and I have gone 20 to assembly line language and now for the main part I do 21 programming C and C++. 22 Q. Okay. Can you tell me something about your background in 23 cryptography? 24 A. Around 1992 I got involved in a cryptography related 25 mailing list on the Internet and became immediately very 207 1 interested in cryptography as a science. 2 Q. And what have you done to pursue that interest? 3 A. I have tried to read as many research papers as I can and 4 also done studies on my own. 5 Q. Did one of those studies include a study of the CSS 6 cipher? 7 A. Yes, as part of a program that Bruce Snyder has put on how 8 to teach yourself cryptographic skills, he suggested that a 9 student could look at various ciphers that are put out. New 10 ciphers are put out, some are strong and some not so strong, 11 and in an effort to hone my own cryptographic skills, I 12 decided to look at the CSS encryption system. 13 Q. Who is Bruce Snyder? 14 A. Bruce Snyder is a very well respected author and lecturer 15 in cryptography. 16 MR. HERNSTADT: Your Honor, just so you know, 17 Mr. Snyder is going to be our expert witness on cryptography. 18 We are presenting Mr. Stevenson as a fact witness about his 19 personal involvement in various matters that are associated 20 with this case. 21 THE COURT: Thank you. 22 Q. Could you please continue to tell us about your inspection 23 of the CSS cipher. 24 A. When I first found the CSS cipher on the web page, it 25 didn't take me long to determine that it had serious 208 1 weaknesses. I also saw that the weaknesses that I found would 2 be useful for the development of a Linux DVD player. At the 3 time they did have a problem in that they did not have enough 4 player keys so they could successfully decrypt all movies, and 5 also my research was useful to that respect. 6 Q. How is that? 7 A. When I first joined the list, there was only a single 8 player key that was publicly known. This key was not capable 9 of decrypting the Matrix the movie, and so I looked at the 10 algorithm and found ways of determining other ways. 11 Q. Was that difficult? 12 A. It took me three days, and I expect that a person more 13 capable than I am would possibly be able to do it in a shorter 14 amount of time. 15 Q. What was the result of your research? Did you develop 16 attacks or? 17 A. I posted three messages directly to the Livid mailing list 18 on three subsequent days, describing three different attacks 19 on the CSS system. 20 MR. GARBUS: I thought the witnesses were excluded. 21 Isn't this Miss King? 22 THE COURT: I certainly don't know. Voice. 23 MR. COOPER: That is Miss King, and she is the 24 representative of one of the plaintiffs. 25 MR. HERNSTADT: Mr. Reporter, could you read back the 209 1 last question. 2 (Record read) 3 Q. What would the result of the attacks be if applied. 4 A. The first attack would possibly enable somebody to decrypt 5 a DVD with only the encrypted files available, not the keys 6 that are stored in a separate place. The second attack made 7 it possible to derive a player key or a set of player keys 8 from a single known player key. And the third attack made it 9 possible to decrypt a DVD movie without knowing any player 10 keys at all. 11 Q. And how long in the second attack, how long would it take 12 to find those keys? 13 THE COURT: Just before you go to that, I want to be 14 sure I'm understanding this. 15 You tell me, sir, that the first attack would 16 possibly enable one to decrypt a DVD with only the encrypted 17 files, not the keys, and the third attack made it possible to 18 decrypt the movie without knowing any keys. How is the first 19 attack different from the third attack? 20 THE WITNESS: The keys are stored in a separate 21 sector on the DVD drive. The first attack could possibly work 22 if you did not have any information about the keys stored on 23 the disk. The third attack works from the keys stored on the 24 disk and determines which key the disk is encrypted with 25 without knowing any player keys. That's the keys that are 210 1 embedded in the licensed DVD player. 2 THE COURT: Are you talking about two different kinds 3 of keys or only one kind of key? 4 THE WITNESS: There are two different kinds of keys. 5 THE COURT: What are they? 6 THE WITNESS: There are actually three different 7 kinds of keys. One kind of key is the player key, which every 8 licensed player is issued, I believe with a set of keys, which 9 are used to decrypt the title key. And every DVD is encrypted 10 with a title key, so when you have a player key and a DVD you 11 can then find the title key, and the title key is then used to 12 decrypt the individual sectors of the DVD which are encrypted 13 with a key derived from the title key. 14 THE COURT: Which is the third kind. 15 THE WITNESS: The first attack determines the third 16 kind of key. 17 THE COURT: Thank you. Go ahead, counsel. 18 MS. MILLER: First of all, we would like to interpose 19 an objection to the witness' last answer in that he has 20 attempted to describe the function of the CSS encryption 21 system. Mr. Hernstadt has not offered him as an expert 22 witness on either DeCSS or cryptography on any of these issues 23 related to the areas he has just testified. 24 THE COURT: I understand your point, but I asked the 25 question because he was describing three attacks that he 211 1 posted to the Livid list and he spoke in terms that were 2 confusing to me, and now I know what he meant. So for that 3 purpose I need it. 4 Q. Mr. Stevenson, could you explain what cryptographers mean 5 when they talk about an attack. 6 A. Well, usually a -- 7 MS. MILLER: Objection, your Honor. Mr. Hernstadt 8 has already said that this witness is not an expert in 9 cryptography. They are not tendering him as an expert, as a 10 cryptographic expert. 11 THE COURT: Sustained. 12 Q. Mr. Stevenson, could you tell us what you mean when you 13 talk about an attack. 14 A. An attack is a weakness in a cipher. 15 THE COURT: Is an attack a weakness or is an attack a 16 tactic to take advantage of a weakness to break the code? 17 THE WITNESS: An attack is when you find a weakness, 18 you publish that as an attack on the cipher. That would then 19 be considered a potential attack of the cipher. 20 THE COURT: So go back to a different era of 21 cryptography. 22 Attack on the German codes came when the allies got 23 the Enigma machine and began putting the codes through the 24 Enigma machine. The weakness was whatever was inherent to the 25 code and the fact that the allies had the decryption device, 212 1 right? 2 THE WITNESS: I think in decrypting, the word 3 "attack" there would be more precisely described as 4 cryptoanalysis, where you have the cipher and you start 5 analyzing it. When you find a weakness you publish that as an 6 attack. 7 THE COURT: Okay. I'm understanding you to say 8 essentially what I'm saying, and, that is, while the 9 publication of a weakness is described as an attack in a sense 10 that any information that would help someone to decrypt a code 11 of any kind would be useful in cracking the code, attack also 12 is appropriately used to describe the effort to crack the 13 code, whatever kind of code it may be. Is that fair? 14 THE WITNESS: That can be so. 15 THE COURT: I'm sorry? 16 THE WITNESS: That could be so. 17 THE COURT: Go ahead. 18 MR. HERNSTADT: In terms of terms of art, I will have 19 Mr. Snyder address it more completely. 20 Q. Mr. Stevenson, how did the cryptoanalysis that you 21 published assist in the development of a Linux DVD player? 22 A. As I said, at the time I only knew of a single public 23 player key, and I have reason to believe that as a result of 24 my second attack a few days later a fuller list of player keys 25 was posted to the Livid mailing list. 213 1 Q. Why would you help with the development of a Linux DVD 2 player? 3 A. I am a Linux user myself, and it is in my interest that 4 Livid become a fully capable operating system and not be 5 inferior to a Windows operating system in any respect. 6 Q. How long have you been a Linux user? 7 A. I first used the Linux operating system something like 8 five years ago. That was for a short period of time only. I 9 have been continually using it on my own computer for two 10 years. 11 Q. Why would DeCSS be a Windows program instead of a Linux 12 program? 13 MS. MILLER: Objection. Vague. 14 THE COURT: Certainly sustained as to form. 15 Q. Do you know why DeCSS was released as a Windows program? 16 THE COURT: Sustained. 17 MS. MILLER: Objection. 18 THE COURT: Sustained. 19 MR. HERNSTADT: I will move on. 20 THE COURT: I'm not foreclosing the area, Mr. 21 Hernstadt. You just haven't asked the proper question. 22 How can he testify about why someone else did 23 something? 24 Q. What is your understanding of why DeCSS was released as a 25 Windows program? 214 1 MS. MILLER: Objection. 2 THE COURT: Sustained. His state of mind is not at 3 issue here. 4 Q. Is DeCSS a Windows program? 5 A. Yes. 6 Q. Can you explain why a Windows program would assist in the 7 development of a Linux DVD player? 8 THE COURT: I can't hear the question. 9 Q. Can you explain how a Windows program would assist in the 10 development of a Linux DVD player? 11 A. It is my understanding that at the time the DeCSS, the 12 Windows program was released, the Linux operating system did 13 not have the capabilities to read the UDF file system that is 14 used on the DVD disks themselves, so for this reason if you 15 want to play a DVD you would have to do the decryption under 16 an operating system that did support the UDF file system, and 17 Windows is one such file system. 18 Q. Was Linux or a Linux program capable of reading DVDs if it 19 didn't support the UDF file system? 20 A. It shouldn't be. 21 MS. MILLER: Objection. No foundation. 22 THE COURT: Sustained. 23 Q. Did you do anything else with the cryptoanalysis? 24 A. I also posted some messages to some prominent cryptography 25 mailing lists pointing to my work in the Livid mailing list, 215 1 and I also did relate it to some of the plaintiffs' problem in 2 reiterating or providing additional protection for DVDs 3 released for early viewing on aircraft. They had sought to 4 add additional protection to the DVDs that were to be played 5 on aircraft, and I thought my research demonstrated that these 6 proposed measures were inadequate. 7 Q. In what respect were the measures inadequate? 8 A. They could not achieve their objectives of protecting DVDs 9 released from being decrypted. 10 Q. And how did you know that the plaintiffs were interested 11 in this particular area? 12 A. While using search engines and searching for CSS I came 13 across a website describing this effort. 14 Q. The effort on the part of the movie industry? 15 A. Yes, that's correct. 16 MS. MILLER: Objection. No foundation. 17 THE COURT: Well, I will take it just as I did things 18 yesterday, to explain why he did whatever he did, not for the 19 truth. Obviously he doesn't have personal knowledge regarding 20 anything about the airplanes. He read something on the 21 Internet and he did something. 22 Q. Are you familiar with any programs that are capable of 23 decrypting DVDs? 24 A. I have downloaded DeCSS on my computer. I have run the 25 program but not used it to decrypt a DVD. I have downloaded 216 1 and used the DOD Speed Ripper on my computer, and I have had 2 some of the other rippers on a computer but did not use them, 3 but I do have an understanding of how the Windows operating 4 system works, and I believe I understand the principle by 5 which the other rippers operate. 6 Q. What other rippers are you talking about? 7 A. There is a ripper called Power Ripper which is capable of 8 intercepting the frames as they are being displayed to the 9 screen on the Windows computer, and another ripper called DVD 10 Rip, which is able to intercept the compressed data stream as 11 they are being fed to some of Microsoft's libraries that are 12 responsible for decompressing them. 13 MS. MILLER: Your Honor, I would object to the 14 witness's last answer and move to strike it. As I understand 15 it, this witness is not being offered as an expert as to the 16 operation of any of these other rippers that he has been able 17 to download and test. 18 THE COURT: Mr. Hernstadt? 19 MR. HERNSTADT: The witness is being offered to 20 describe what he has done and what he knows about the rippers. 21 He is not being offered as an expert about them. 22 MS. MILLER: I don't think the witness has testified 23 that he has used all the rippers, and I fail to see the 24 relevance of his use of any of these additional rippers he has 25 testified about. 217 1 MR. HERNSTADT: I don't think the witness has 2 testified that he has used them to decrypt a DVD, but I think 3 he has testified that he has looked at them or he has them on 4 his computer and is familiar with how they work. I think he 5 can testify to his personal knowledge. 6 THE COURT: Well, the motion is granted. I don't 7 think that's accurate. He said he has downloaded DeCSS and 8 run it, but if I understand his testimony correctly it was to 9 the effect that he has not used it to decrypt a DVD. He then 10 said that he had used DOD Speed Ripper but he didn't say for 11 what or anything else about that, and that he had downloaded 12 but not used some others but he understands the principle. 13 And there is no foundation as to how he got that 14 understanding, and I rather suspect that you are probably 15 getting into expert testimony even if he has an appropriate 16 foundation. 17 So, I have granted the motion. If you want to try to 18 lay a better foundation, go ahead, but it's not there yet. 19 Q. Mr. Stevenson, you said that you downloaded Speed Ripper, 20 is that correct? 21 A. That is correct. 22 Q. And you used it, is that correct? 23 A. I downloaded Speed Ripper because a friend of mine wanted 24 to see if it was possible to make a video CD copy of a DVD 25 movie that he had, and I went and asked another friend 218 1 knowledgeable in which tools would be appropriate, and he did 2 recommend that the DOD Speed Ripper was the best tool to use 3 for the job, and for this reason I used the DOD Speed Ripper. 4 Q. And did it decrypt the DVD? 5 A. Yes, it did decrypt the DVD. 6 Q. Have you been affected personally by the institution of 7 this litigation? 8 MS. MILLER: Objection. Vague. 9 THE COURT: Where are you going, Mr. Hernstadt? 10 Q. Have you been affected personally in terms of your studies 11 in cryptology -- 12 A. Well, I know for one thing -- 13 Q. -- by this litigation? 14 A. I know for one thing that the material I have produced has 15 been pulled off the 2600 website as a result of this 16 litigation. 17 Q. Okay. Have you experienced any other effects? 18 A. No. 19 MR. HERNSTADT: Thank you very much, Mr. Stevenson. 20 MR. GARBUS: Excuse me. 21 MR. HERNSTADT: I'm sorry. 22 Q. Mr. Stevenson, did you do a declaration in this case? 23 A. I have done two declarations in this case. 24 MR. HERNSTADT: May I approach the witness, your 25 Honor? 219 1 THE COURT: Yes. Are the exhibits you have handed 2 the witness marked? 3 MR. HERNSTADT: Yes, they are. I'm sorry. 4 THE COURT: What are they? Just tell me and I will 5 mark my copy. 6 MR. HERNSTADT: I have to look at the exhibits. 7 MR. ATLAS: I may be able to shed some light on this. 8 In haste to get the documents prepared for trial, the copies 9 we had made were not marked with the formal defendant exhibit 10 stickers with a number on it, so what we have been doing is 11 the original that is going to go in the record, we have the 12 stickers here, we have been marking them. Every copy should 13 have the exhibit number. It's one, two or three letters that 14 appear at the bottom of the exhibit typically. 15 THE COURT: Well, one of the two that was just handed 16 to me has an otherwise unexplained AE in the corner. 17 MR. ATLAS: That would be the defendants' exhibit 18 number. 19 MR. HERNSTADT: That's a reply declaration? 20 THE COURT: It is. Now the other one doesn't have 21 two letters. 22 MR. HERNSTADT: It has a "U." 23 THE COURT: It looks like a page number. 24 MR. ATLAS: I apologize. For the record, we will 25 have them marked later. 220 1 THE COURT: Thank you. 2 Q. Are those the two declarations you did in this case? 3 A. Yes. 4 MR. HERNSTADT: Your Honor, rather than take 5 Mr. Stevenson through the declarations, I would move that they 6 be admitted into evidence. You can review them for yourself. 7 MS. MILLER: Your Honor, we are going to object to 8 the introduction of Mr. Stevenson's declarations into 9 evidence. 10 As you will see when you read the declarations, he 11 has testified in a lot of areas which is clearly an area of 12 expert testimony. He has not been qualified as an expert. He 13 has not been tendered as an expert. There are also areas in 14 the declaration where it's clear he is not testifying to any 15 personal knowledge, and large areas in the declaration relate 16 to the other rippers he has used, as he just testified today, 17 and we would object to the introduction of that evidence on 18 the grounds of relevance. 19 MR. HERNSTADT: Your Honor, I would suggest that it 20 makes more sense for you to review it and take those 21 paragraphs that you believe are applicable and use them rather 22 than go through the declaration paragraph by paragraph. 23 THE COURT: But, look, I'm mindful also of what Mr. 24 Garbus said in his opening, that this case isn't stopping here 25 no matter what I decide, and I do have an obligation to create 221 1 a record that is reasonably sensible. 2 Now, if I start receiving what here amounts to -- 3 well, the pages aren't numbered -- but one long and one short 4 declaration -- on the view that here I will somehow sort out 5 what I think is reliable and what isn't, it's really rather 6 different from taking one snippet of testimony, which I will 7 do for both sides. What it does is to place upon me the 8 burden of going through hundreds and possibly thousands of 9 pages of material to in effect cross out everything I think is 10 incompetent or hearsay so that whether or not I rely on it at 11 this point will be absolutely clear to the Court of Appeals, 12 so that either side which went through this exercise couldn't 13 go to the Court of Appeals and say, well, there was evidence 14 in the record below to the proposition X, which I may not have 15 relied on but perhaps I didn't cross out, even though it's my 16 view it's not properly admissible. 17 So, I think with respect to this I'm going to sustain 18 the objection. If there is anything specific you want to 19 adduce, let's do it. 20 I do appreciate the effort to save time, but I think 21 that the objection at least in this case of this witness is 22 perfectly appropriate. I mean he's got all kinds of 23 statements in here as to which there is no basis for my 24 assuming he has personal knowledge. 25 MR. HERNSTADT: Your Honor, I'm happy to take that 222 1 approach. 2 Q. Mr. Stevenson, could you take a look at your declaration, 3 Exhibit U in this case. 4 A. Yes. 5 Q. If you look at the first paragraph, do you have a personal 6 knowledge as to the matters set forth in that paragraph? 7 A. Yes. 8 Q. Okay. Looking at the second paragraph, do you have 9 personal knowledge as to the matters set forth in that 10 paragraph? 11 MS. MILLER: Objection. If I could have 12 Mr. Hernstadt identify what he is referring to. 13 THE COURT: There was some noise and I couldn't hear 14 what you said when you turned away. 15 MS. MILLER: I would just like some clarification as 16 to what paragraphs Mr. Hernstadt is referring to. 17 THE COURT: Ms. Miller, you keep turning your head to 18 Mr. Hernstadt, and every time you do I can't hear what you are 19 saying. 20 MS. MILLER: I am sorry. I would just like some 21 clarification so I understand what paragraphs in the 22 declaration Mr. Hernstadt is referring to. 23 THE COURT: It's Defendants' Exhibit U, which is the 24 first one, and the paragraphs all have numbers, so if you use 25 the numbers. 223 1 MS. MILLER: I didn't have a Defendants' Exhibit U. 2 THE COURT: You don't have it? Mr. Hernstadt, let's 3 see if you can get it. 4 MS. MILLER: I have it, but I didn't have the actual 5 U. So the first declaration is Exhibit U? 6 MR. HERNSTADT: That's correct. The reply 7 declaration is Exhibit AE. 8 THE COURT: All right. Let's go. 9 Q. Mr. Stevenson, do you have personal knowledge as to the 10 matters set forth in paragraph 2? 11 A. Yes. 12 Q. Do you have personal knowledge as to the matters set forth 13 in paragraph 3? 14 A. Yes. 15 Q. And do you have personal knowledge as to the matters set 16 forth in paragraph 4? 17 A. Yes. 18 THE COURT: Let's just pause on that. You say there 19 are at least four programs in wide circulation that use CSS 20 ciphers. What does "wide circulation" mean? 21 THE WITNESS: They are easy to locate on the Internet 22 and they can be found at more than one place. 23 THE COURT: That's the definition of wide 24 circulation. 25 Q. Have you found each of these on the Internet? 224 1 A. Yes. 2 Q. In more than one place? 3 A. Yes. 4 THE COURT: How do you know as you state in paragraph 5 4 that Livid members cooperatively wrote css-auth -- that's 6 A-U-T-H -- and css-cat? 7 THE WITNESS: I subscribed to the mailing list and 8 would get frequent e-mails when changes were made to these 9 programs, so I know in fact they were working on them. 10 MS. MILLER: Objection. That's hearsay. 11 THE COURT: Yes, I think so, Mr. Hernstadt, isn't it? 12 MR. HERNSTADT: That's fine. 13 THE COURT: That sentence is not received. 14 Q. If you look at paragraph 7, do you have a personal 15 knowledge that the anonymous source is a short section of a 16 source code that describes all the CSS cipher modes of 17 operation required to decrypt a DVD movie? 18 A. Yes. 19 Q. Do you have personal knowledge as to the other matters set 20 forth in that paragraph? 21 A. Yes. 22 Q. In paragraph 8 you say that css-auth is a Linux BSD 23 program written by the LiViD group. Let me ask you, do you 24 have personal knowledge as to the first part of that sentence, 25 that it is a Linux BSD program? 225 1 A. The LiViD group would be the place that maintained all the 2 changes to this program, and as such it would be developed on 3 the LiViD forum or in the LiViD group. 4 MS. MILLER: Objection. That's hearsay. 5 Q. Have you looked at the archives on the LiViD forum and 6 examined the changes that were made to the css-auth program? 7 A. Yes. 8 Q. Are all those changes posted and available to be used by 9 you on the LiViD forum? 10 A. Yes. 11 MS. MILLER: Objection, your Honor, hearsay. 12 MR. HERNSTADT: Your Honor, he's looked at these. He 13 has looked at the DeCSS program and all the changes of the 14 program in its various iterations, and the changes are 15 available on the LiViD forum. 16 MS. MILLER: But there has been no foundation 17 established on who created that program or that anything on 18 that forum is accurate in fact. 19 MR. HERNSTADT: All right. I think I will ask 20 another question. 21 THE COURT: This is Mr. Garbus's point from 22 yesterday. He quite appropriately said yesterday the fact 23 that it's on the Internet doesn't make it true. It's hearsay. 24 Sauce for the goose is sauce for the gander. 25 MR. HERNSTADT: Let me ask it a different way, if you 226 1 will, your Honor. 2 Q. Mr. Stevenson, have you found the source code for css-auth 3 on the LiViD forum? 4 A. Yes, I have. 5 Q. Have you found different iterations of the source code, in 6 other words different versions of the source code that have 7 been changed and improved in various ways? 8 A. Yes. 9 MS. MILLER: Objection. Foundation? 10 THE COURT: Overruled. 11 Q. Now, do you have personal knowledge that when running 12 css-auth it will perform the authorization to the DVD drive 13 enabling the reading of a hidden block of data? 14 A. I performed those steps, yes. 15 Q. And the steps set forth in the third sentence of paragraph 16 8? 17 A. Which paragraph? 18 Q. That's the hidden block of data containing the list of 19 title keys encrypted under various disk keys and a hatch? 20 A. Yes, I have performed that. 21 Q. Have you examined css-cat? 22 A. I have looked at the source. 23 Q. Where did you find the source for css-cat? 24 A. On the LiViD website. 25 Q. Do you have personal knowledge that it is capable of 227 1 decrypting the bulk of movie data after authentication? 2 A. Yes. 3 Q. And that it is based in part on the anonymous source? 4 A. There are sections of code in the css-cat that are very 5 similar to the anonymous source, but I have not compared or 6 done an exact comparison. 7 MS. MILLER: Objection and move to strike that last 8 answer. If the witness hasn't performed an exact comparison, 9 it's hard to imagine that we could possibly say that they are 10 similar. 11 THE COURT: Overruled. If you look at a green 12 Mercedes and a blue Mercedes, you can say they are similar 13 without doing an exact comparison. 14 Q. Do you have personal knowledge of the matters set forth in 15 paragraph 11 of your declaration? 16 A. Which paragraph? 17 Q. 11. I'm sorry. I skipped ten. Do you have personal 18 knowledge of the matters set forth in paragraph 10 of your 19 declaration? 20 A. Yes. 21 Q. Do you have personal knowledge of the matters set forth in 22 paragraph 11 of your declaration? 23 THE COURT: Look, you can do it this way, 24 Mr. Hernstadt, but I'm just going to tell you up front, it 25 isn't terribly persuasive, I'm speaking of paragraph 10, to 228 1 have the witness simply say the incantation of personal 2 knowledge without developing some basis for his making the 3 statement that css-auth and css-cat are functionally 4 equivalent to DeCSS. 5 MR. HERNSTADT: Thank you, your Honor. 6 Q. Mr. Stevenson, what is the basis for your statement in 7 paragraph 10 that taken together css-auth -- 8 A. DeCSS.exe program is capable of decrypting a DVD, and I 9 believe that is the reason we are all present here today. I 10 have seen a css-auth and css-cat perform the same function. 11 MS. MILLER: Once again we would object and move to 12 strike, because I don't believe as you posed the question that 13 this witness can still draw the conclusions, since he is not 14 an expert, that these two programs together are functionally 15 equivalent to DeCSS.exe. 16 THE COURT: Goes to the weight. Overruled. 17 Q. What does css-auth do? 18 A. Css-auth performs the secret handshake or authentication 19 to the DVD drive, and the DVD drive will respond by making 20 available a block of keys and a title key and will also allow 21 the reading of the encrypted files. 22 Q. What does css-cat do? 23 A. Css-cat takes the encrypted title key and the key block 24 and will find the keys that are needed to decrypt the bulk of 25 the DVD and perform the decryption and copy the DVD to a disk 229 1 in unencrypted form. 2 THE COURT: You say needed to decrypt the bulk of the 3 DVD. What part of it doesn't enable you to find the keys that 4 are necessary to do cryptographs, if that question was clear. 5 THE WITNESS: No. 6 THE COURT: You said css-cat takes the encrypted 7 title key and the key block and will find the keys that are 8 needed to decrypt the bulk of the DVD. 9 THE WITNESS: That will be the bulk files that are 10 several gigabytes. 11 THE COURT: The VOB files? 12 THE WITNESS: Yes. 13 THE COURT: Are there other files that are necessary 14 to decrypt the DVD? 15 THE WITNESS: No. The .IFO files are not encrypted. 16 THE COURT: What? 17 THE WITNESS: IFO files. 18 THE COURT: Okay. 19 Q. Mr. Stevenson, thank you very much. I have nothing 20 further for this witness, your Honor. 21 THE COURT: Thank you. Ms. Miller? 22 CROSS-EXAMINATION 23 BY MS. MILLER: 24 Q. Good morning, Mr. Stevenson. 25 A. Good morning. 230 1 Q. You have heard of the DeCSS program, is that correct? 2 A. I have heard about the DeCSS.exe Windows program, that's 3 correct. 4 Q. Is it correct that you did not personally create the DeCSS 5 program? 6 A. I have no part in the creation of this program. 7 Q. Now it's also correct that you have never posted the DeCSS 8 Windows executable utility to your website, is that correct? 9 A. That is correct. 10 Q. You have never personally examined or analyzed the DeCSS 11 Windows executable utility, is that correct? 12 A. That is correct. 13 Q. And you have no personal knowledge of who actually created 14 DeCSS, is that correct? 15 A. I know a fellow here present today who claims to have 16 authored the program. 17 Q. You know a fellow here that's here today who claims to 18 have authored the program? 19 A. Yes. 20 Q. But you gained that knowledge how? 21 A. By talking to this person. 22 Q. Who is the person that you are referring to, 23 Mr. Stevenson? 24 A. I'm referring to Jon Johansen. 25 Q. And Jon Johansen is in the courtroom today? 231 1 A. Yes, he is. 2 MS. MILLER: The defendants on several occasions have 3 indicated that Jon Johansen might be called as a witness in 4 this trial. At this point he has not been indicated on the 5 witness list, but to the extent that he is present and could 6 possibly be called as a witness, we would like to initially 7 exclude him from the courtroom, since all other witnesses have 8 been excluded. 9 THE COURT: Mr. Hernstadt? 10 MR. HERNSTADT: Your Honor, we learned two weeks ago 11 that Mr. Johansen was going to be in New York, and we 12 mentioned at that point that we might want to use him as a 13 witness. He is 17 years old, and he has been here for four 14 days. We have had almost no chance to talk to him, so we 15 hadn't intended to put him up as a witness. If your Honor 16 would like to hear from him, since he is sort of the horse, we 17 can -- 18 MR. GARBUS: Your Honor, why don't we exclude him for 19 now and we can talk about these other issues later. 20 THE COURT: Well, then, Mr. Johansen, you will have 21 to leave the courtroom. You are welcome to sit in the jury 22 room back under the clock. 23 All right, Ms. Miller, let's proceed, please. 24 Q. Now, you gave a deposition in this matter last night, is 25 that correct, Mr. Stevenson? 232 1 A. Yes. 2 Q. Now, you indicated in your deposition that you had never 3 heard of CSS until you read a report on Slashdot about the 4 creation of DeCSS, is that correct? 5 A. That is not correct. It was about the creation of 6 css-auth. 7 Q. Okay. So the original report that you read on Slashdot 8 was about css-auth, correct? 9 A. Yes. 10 Q. And until that point in time you had never heard of CSS, 11 is that correct? 12 A. Not that I'm aware of. 13 Q. So you had not engaged in the encryption activities 14 related to CSS, is that correct? 15 A. Excuse me. 16 Q. Up until the point in time that you first read about 17 css-auth on Slashdot, you had not been involved in the 18 encryption research activity related to CSS, correct? 19 A. That is correct. 20 Q. Now, as far as you know, Mr. Stevenson, the CSS algorithm 21 was not derived by a brute force attack, is that right? 22 MR. HERNSTADT: Objection. It's beyond the scope. I 23 did not ask him any questions about how it was derived. 24 THE COURT: Well, I'm certainly going to sustain it 25 as to form for starters, because the terms are not clear. 233 1 THE WITNESS: Not to me either. 2 MS. MILLER: I will move on. 3 Q. The cryptoanalysis of the CSS algorithm that you prepared 4 was only prepared after your examination of what was posted on 5 the LiViD group as the anonymous source, is that correct? 6 A. That is correct. 7 Q. And you testified that you contributed your cryptoanalysis 8 to the LiViD mailing list, is that correct? 9 A. That is correct. 10 Q. Now you also have testified that you contributed some 11 attacks, I believe was the word you used, to the LiViD mailing 12 list concerning how one might derive encryption keys for 13 purposes of decrypting a DVD, is that correct? 14 A. Those were my contributions to the LiViD mailing list. 15 Q. And those were your only contributions to the LiViD 16 mailing list, is that correct? 17 A. I performed also some discussion one-to-one with other 18 members of the list. 19 Q. But as far as actually contributing any of the code for 20 the Linux DVD player that was under development, those were 21 the only three? 22 A. I only submitted these three pieces of code to the list, 23 yes. 24 Q. Thank you. You don't know, however, whether in fact any 25 of the attacks that you contributed were used in any aspect of 234 1 the Linux DVD player that was being developed on the Linux 2 mailing list, is that correct? 3 A. As I mentioned, I believe that some player keys might have 4 been determined as a result of the code that I posted, and 5 that those in turn were useful for the development of a LiViD 6 or Linux DVD player. 7 Q. But you testified in your deposition last night that you 8 have no way of knowing to be sure whether in fact what you 9 posted was used to derive those player keys, correct? 10 A. As I did not derive those player keys, of course I cannot 11 testify to that. 12 Q. Now, you testified today that you believe that your 13 cryptoanalysis was removed from the 2600 website as a result 14 of this lawsuit, is that correct? 15 A. That is correct. 16 Q. Now, isn't it true that Mr. Corley asked your permission 17 to link to your site which posted the cryptoanalysis that you 18 performed on CSS? 19 A. He asked for permission to mirror the content of my 20 website. 21 Q. Now, you have no knowledge of whether in fact Mr. Corley 22 was involved in any reverse engineering activities related to 23 the Linux DVD player, is that correct? 24 MR. HERNSTADT: Objection, your Honor. 25 THE COURT: Sustained. Beyond the scope. 235 1 MS. MILLER: No further questions. 2 THE COURT: Thank you. Mr. Hernstadt? 3 MR. HERNSTADT: I have nothing further. Thank you 4 very much, Mr. Stevenson. 5 THE COURT: Mr. Stevenson, you may step down. 6 MR. GOLD: Your Honor, may we have a two-minute 7 break? 8 THE COURT: Five minutes. 9 (Recess) 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 236 1 THE COURT: Mr. Gold? 2 MR GOLD: Your Honor, I would like to call Mr. Robert 3 Schumann as our next witness. 4 MR. GARBUS: Your Honor, let me make a preliminary 5 remark with respect to this witness as well as the next 6 witness, and perhaps I should have made it with respect to the 7 other witness. It's just a cautionary remark that the 8 witnesses each have a certain limited area of expertise. 9 For example, Mr. Schumann testified originally as a 10 security expert and over the course of time, the expertise of 11 these witnesses is blown up so that they now cover a good deal 12 of other areas. I just caution that, at this point, and I'll 13 make the appropriate objection. 14 THE COURT: You make the appropriate objection. I 15 would be a lot happier if none of the attorneys make little 16 pieces of closing argument along the way in the sense of being 17 helpful. I appreciate the helpfulness. I recognize also that 18 many of them are intended for public audiences, and that's 19 true of both sides, and we are going to try this case by the 20 book. 21 You have an objection. You make the objection at the 22 right time. That goes for everybody. 23 ROBERT W. SCHUMANN, 24 called as a witness by the plaintiff 25 having been duly sworn, testified as follows: 237 1 THE CLERK: State your name. Spell your last name 2 slowly. 3 THE WITNESS: Robert W. Schumann S-C-H-U-M-A-N-N. 4 THE COURT: Mr. Gold, you may proceed. 5 DIRECT EXAMINATION 6 BY MR. GOLD: 7 Q. Good morning, Mr. Schumann. 8 A. Good morning. 9 Q. Mr. Schumann, by whom are you employed? 10 A. Cinea LLC. 11 Q. And what is your position with Cinea? 12 A. I'm president and CEO of Cinea. 13 Q. What is -- 14 THE COURT: Spell Cinea? 15 THE WITNESS: C-I-N-E-A. 16 THE COURT: Thank you. Proceed. 17 I didn't know if it was a showy summer flower or -- 18 MR GOLD: It will soon be a very large blossoming 19 flower. 20 Q. What is the business of Cinea? 21 A. Cinea is a startup corporation whose business or area of 22 business expertise is the creation and development of security 23 systems, with a focus on digital content, in particular, 24 video. 25 Q. Now, you said that Cinea designs and develops security 238 1 systems, is that correct? 2 A. That's correct, yes. 3 Q. Who does it develop them for? 4 A. It develops them for people who have a need to protect 5 their content. Typically, this is the movie studios or other 6 people who have video content, such as television groups or 7 corporations, anybody who has content that they would like to 8 protect and insure the integrity of. 9 Q. Have you heard the term "high value digital content"? 10 A. Yeah, it's a term we use commonly in our description of 11 the company. We -- our early market focus is what we call the 12 high value digital video, which is the time when a movie is 13 released. It goes through what's called windows of release. 14 So, first, it's created. Then it's released to the 15 theater. Then it typically goes into hotels and airplanes and 16 other what's called window venues. Then it's released to home 17 video, and then it goes to pay per-view. And as it moves 18 through those stages of distribution, it changes its value 19 proposition for the studio. 20 So, when it's first released, they spend a tremendous 21 amount of money to create this content, but have realized no 22 revenue from the content. It has a tremendous amount of 23 future revenue, but has no realized revenue and so, as it 24 leaves the theater, it has received a portion of its future 25 revenue, so now it has some realized revenue, it continues to 239 1 sustain future revenue. 2 MR. GARBUS: I object on the grounds that this 3 witness is not an expert, and move to strike. 4 THE COURT: Overruled. 5 Q. Is it true that the higher the content value, as you've 6 just described of the digital material, the more potential 7 customers are likely to spend on the security system? 8 A. Absolutely. 9 Q. What is a DVD? 10 A. DVD is a -- stands for "digital versatile disk" and it 11 describes a family of standards and in common perception 12 products, the consumer knows DVD as the video disk, commonly 13 as the video disk, as described here in this hearing, but it 14 really encompasses a set of standards, including the standards 15 for the physical disks themselves and the readers and the 16 structures of the disk commonly referred to as DVD-ROM, as 17 well as video standards that describe how to store video and 18 content on those disks. 19 Q. How much storage capacity can one usually expect to find 20 on a DVD? 21 A. DVD support four or five different storage levels. 22 Normally the minimum size is 4.7 gigabytes for -- and this is 23 DVD-ROM. There are four gigabytes DVD-ROM, which is the 24 compressed ROMs support a minimum of 4.7 gigabytes and are 25 typically released as 4.7 gigabytes or what's called 240 1 dual-layer or dual-sided where they have between nine and ten 2 gigabytes of data, essentially two 4.7 layers. 3 Q. Is there a difference in the quality of the digital data 4 stored on a DVD and, for example, audio analog data like that 5 stored on a video cassette disk? 6 A. Absolutely. DVDs have a far higher degree of quality than 7 VCR tapes or VHS tapes. Typically, the people view it as a 8 four times better quality. It's hard to put a quantitative 9 number like that on it, but it describes a much stronger -- a 10 much higher resolution on the screen as well as much better 11 color fidelity than is possible on videotape. Also DVDs have 12 a much better audio system than VHS tape does. 13 Q. Is there now a particular need for digital content? 14 A. There's a tremendous market acceptance for digital content 15 as evidenced by the rise of DVDs and the spill of DVDs; yes. 16 Q. How long have you been with Cinea? 17 A. I have been with Cinea since its founding in June of 1999. 18 Q. And what did you do before that? 19 A. I was working for Digital Video Express, commonly known as 20 "Divex." I'll note for the Court that it's not the same Divex 21 as been previously discussed in this room. 22 And at Divex, I was -- when I joined Divex, I was one 23 of the chief architects of the overall DiVX system. And then 24 I spent the last two years working on future business 25 developments for Divex. 241 1 THE COURT: So, in the hope of producing a transcript 2 here that is intelligible to the rest of the world, let's 3 adopt this convention, Amy: When someone is speaking of DiVX 4 in the sense we heard yesterday, that is, as the compression 5 method, that gets rendered, as I understand, the capital DiVX. 6 "Divex" meaning the name of this gentleman's former 7 company, let's render it as "Divex" with no capitals in the 8 middle of the word. 9 Let's proceed. 10 Q. What was Divex's business? 11 A. Divex's business was essentially a better way to rent 12 movies for consumers. It created products, both distributed 13 videos as well as technology that went into players which 14 allowed the retail sale of movies at a four dollars -- $4.49 15 and essentially what was sold was the physical media and what 16 we'll call one free rental period. 17 So, a consumer was able to go into a store such as 18 Circuit City or grocery store or their favorite video store 19 and "buy the movie" and what they would do then is they could 20 take that movie home and unlike a movie rented at 21 Blockbuster's, your rental period or your two-day period 22 started when you put the movie in the player, and not when you 23 left the store; O.K. 24 And so, I could buy it on a Monday, put it in the 25 player on a Friday night when I like to watch my movies, and 242 1 then would have all weekend to watch it, just as I did with a 2 rental movie that I got at Blockbuster and then at the end of 3 the weekend, I wouldn't have to take it back. It was 4 basically a convenience product for the consumer. 5 Q. Was the technology of that particular DiVX product that 6 you just described similar to present DVD technology? 7 A. It was in the base technologies of how the video stored, 8 how the video was played back, and how the structure and 9 quality of the video, in fact, we used the DVD specifications 10 for those portions where we differed was that we had a 11 different security system and a slightly different menuing 12 system. 13 Q. What was your title when you were at Divex? 14 A. My title when Divex was shut down was director of 15 strategic technology. 16 Q. And what were your responsibilities as director of 17 strategic technology at Divex? 18 A. In that role, I was responsible for working with other 19 content areas, essentially to promulgate the DiVX technology 20 into both other applications as well as into other platforms 21 such as digital cinema and other high-value areas. 22 Q. Was there a digital content security aspect to DiVX 23 technology? 24 A. Absolutely. The DiVX system was dependent on a robust 25 security subsystem. 243 1 Q. Prior to the time that you became director of strategic 2 technology at Divex, did you hold another job at Divex? 3 A. Yes, I was chief architect at Divex. 4 Q. And what did you do as chief architect at Divex? 5 A. I was -- I had responsibilities for the overall system 6 design, both of players as well as the back end, and also was 7 one of the key -- key members of the team that developed the 8 DiVX security architecture. 9 Q. I'd like to show you a document that's been marked as 10 Exhibit 4 for identification, Defendant's Exhibit 4. 11 THE COURT: Plaintiff's or defendant's? 12 MR GOLD: Plaintiff's Exhibit 4. 13 THE COURT: Your roots are showing, Mr. Gold. 14 MR GOLD: Yes. 15 Q. Mr. Schumann, what is Exhibit 4? 16 A. It's a copy of my resume. 17 Q. And is all of the information on that document accurate? 18 A. Yes, it is. 19 MR. GOLD: I'd like to introduce that document as 20 Plaintiff's Exhibit No. -- what, in evidence? 4. Plaintiff's 21 Exhibit 4 in evidence, your Honor. 22 MR. GARBUS: I have no objection. 23 THE COURT: It's received. 24 (Plaintiff's Exhibit 4 received in evidence) 25 THE COURT: I note in looking at it that the spelling 244 1 of the name of the witness' former company is DIVX, and 2 notwithstanding that, we are going with the D-i-v-e-x 3 convention to differentiate it from the other technology. 4 O.K., let's go. 5 Q. Did there come a time when you were retained by the 6 Proskauer law firm to assist plaintiffs in this case? 7 A. Yes, sir, I did. 8 Q. And what were you asked to do, sir? 9 A. I was asked to provide my expertise and to apply my 10 knowledge of digital systems and security systems and DVDs and 11 my background to this case. 12 Q. Were you asked to do anything in connection with CSS or 13 DeCSS? 14 A. Absolutely. I had performed an analysis for the MPAA and 15 I was asked in the discussion with the folks at Proskauer to 16 help them understand and provide a, I guess what's called an 17 affidavit relative to my understanding of CSS and how it 18 worked and also DeCSS. 19 Q. Did you have a written retainer agreement? 20 A. I did not. 21 Q. What were the terms of your retainer? 22 A. The terms of the retainer was that I would be compensated 23 for my time on an hourly basis -- or I should clarify that -- 24 that Cinea would be compensated for my time on an hourly 25 basis. 245 1 Q. And what is the rate charged by Cinea for your time? 2 A. $325 per hour. 3 Q. Mr. Schumann, what is DeCSS? 4 A. DeCSS is a Windows application which essentially removes 5 the CSS protection mechanisms from content or video -- 6 audio-video content stored on DVDs. 7 Q. Does DeCSS run under the Microsoft Windows operating 8 system? 9 A. Absolutely. In fact, that's the only place that the DeCSS 10 executable works. 11 Q. And what does DeCSS allow its user to do? 12 A. DeCSS allows its users to take a DVD disk that's protected 13 with the CSS protection system, place it into the DVD drive of 14 their Windows computer, then select essentially the files from 15 that -- from that disk and ask them to be written to their 16 hard drive or connected network machine and write -- and write 17 the resultant file -- the resultant of what's called "plain 18 text" in the security filed, but unencrypted data back to the 19 hard drive. 20 It essentially performs one and only function and 21 that is to remove the CSS protection and allow the copying of 22 the unencrypted data. 23 Q. So, at the end of the process, there is an unencrypted 24 movie tape on the user's hard drive? 25 A. Absolutely. The audio-visual content is stored on the 246 1 user's hard drive in unencrypted form. 2 Q. And what can the user do with that unencrypted motion 3 picture? 4 A. They can do anything they could do with any other file on 5 their hard drive. 6 MR. GARBUS: I'll object to it unless he's done it. 7 THE COURT: You need to lay a better foundation here, 8 Counsel. 9 Q. Did you use DeCSS? 10 A. Yes, I have. 11 Q. Did you decrypt any movies with DeCSS? 12 A. Yes, I have. 13 Q. How many? 14 A. I have used DeCSS about four or five times now. 15 Q. And did you observe what it did? 16 A. Yes, I did. 17 Q. Can you tell us what DeCSS does to an encrypted DVD? 18 A. Absolutely. 19 THE COURT: I take it you have just told us, is that 20 right? 21 THE WITNESS: I can provide more detail, if the Court 22 would -- 23 Q. Would you please, sir? 24 A. Absolutely. DeCSS performs its function in four -- 25 essentially four discrete steps. In order to extract the 247 1 content and to unlock the disk, CSS provides two mechanisms to 2 prevent access and to prevent the copying of the content. 3 First, it provides a locking mechanism whereby a DVD 4 drive will not release the CSS-protected content on the disk 5 to a computer until the CSS drive has completed a handshake 6 with the computer and is satisfied that the computer is -- to 7 use the lay term -- "safe" to release the content to; O.K. 8 So, that's the unlocking step. So, when DeCSS is 9 first brought up, it unlocks the DVD drive, so it can get 10 access to the content. It then provides a screen to the user 11 which looks just like any other Windows screen where the user 12 is able to select the files off of the DVD disk that they 13 would like to extract and copy. That's step 2. 14 Step 3, the user then selects the target directory 15 into which they would like to write the plain text or 16 decrypted files. That directory can be any directory on their 17 Windows machine. So, that could be the hard drive, could be a 18 directory on the hard drive, it could be a directory on 19 connected network machines. It could be a directory on an 20 attached tape drive or any -- essentially anywhere in the 21 Windows someone sees as a directory. 22 So, they select the files they want to copy, then 23 they select where they want the output written to, and then 24 finally they click the button that tells the program to start 25 and then the program goes to the process of running the CSS 248 1 decryption algorithms against that content and writes the 2 resultant plain text to the output files. 3 Q. So, at the end of this process, is it true that you have 4 descrambled the previously-scrambled DVD? 5 A. Absolutely. 6 Q. Have you ever visited the 2600.com website? 7 A. Yes, I have. 8 Q. How many times? 9 A. Probably several dozen now. 10 Q. Have you ever down-loaded software from the 2600.com 11 website? 12 A. Yes, I have. 13 Q. Did you download DeCSS from that site? 14 A. Yes, absolutely, on multiple occasions. 15 Q. In what form was the DeCSS software that you downloaded 16 from the 2600.com site? 17 A. The DeCSS software that I downloaded was in the form of a 18 zip file, but that zip file contained the DeCSS executable, 19 again, the Windows application that I formerly described. 20 Q. When you downloaded, was in it form of a Microsoft Windows 21 executable utility? 22 A. Yes, it was. Again, it was contained within a zip file 23 which is -- which is a mechanism for compressing files for 24 faster download and faster transmission, but after it was 25 extracted from the zip file, that zip file contained the 249 1 Windows executable. So, effectively, it was a Windows 2 executable that I downloaded. 3 Q. How do you know it was a Windows executable system that 4 runs under the Microsoft operating system? 5 A. Executables are tightly coupled to the operating system 6 they run on, and so, if it was not a Windows-executable, 7 Windows would have refused to run the program. 8 Q. Do you know anything about whether DeCSS was created to 9 run on a Linux system? 10 A. I can say that, to my knowledge, there was absolutely 11 no -- it would not appear at all that it was and that's from 12 several -- several aspects, No. 1, the thing is a Windows 13 operating system. It's written and runs on the Windows 14 operating system; O.K. 15 And somebody who is developing a program for the 16 Linux operating system would not create a Windows executable. 17 They would, in fact, create a Linux executable because the 18 process and the interfaces are considerably different between 19 those two. 20 In addition, in my work for the MPAA -- 21 THE COURT: I think there's an objection; is there? 22 MR. GARBUS: Yes, there is, your Honor. 23 THE COURT: And what is it? 24 MR. GARBUS: As for the MPA, it would be hearsay. 25 With respect to the other material, it's conclusory. 250 1 THE COURT: Your voice is so low. 2 MR. GARBUS: There is no foundation for the 3 conclusions that he's drawn and with respect to the other 4 material, I presume it all to be hearsay. 5 THE COURT: Let's back up and I will strike this 6 answer. And let's come at it and lay a proper foundation. 7 Q. You've testified that DeCSS runs under the Microsoft 8 operating system, is that correct? 9 A. That's correct. 10 Q. Did you observe any facts which led you to that 11 conclusion? 12 THE COURT: We did that part. 13 Do you have an opinion of whether this DeCSS was 14 created to run on Linux machines? That's the question; yes or 15 no? Do you have an opinion? 16 THE WITNESS: Yes, absolutely. 17 THE COURT: What is the opinion? 18 THE WITNESS: The opinion is that DeCSS was created 19 to run on the Windows operating system. 20 THE COURT: And what's the basis for the opinion? 21 THE WITNESS: The basis for the opinion is that it 22 was released in a Windows executable format. I personally, in 23 my looking through the web and looking at all of the 24 available -- what's available for download that's referred to 25 as DeCSS have never seen anything other than a Windows 251 1 executable; O.K. 2 MR. GARBUS: I object to it. 3 THE COURT: I'd like to hear the rest of the answer, 4 then I will hear your objection. 5 THE WITNESS: And, lastly, based on my considerable 6 expertise and history in creating software, you do not 7 accidentally create an executable that runs on an operating 8 system. You do it very deliberately and very particularly. 9 THE COURT: I don't understand the last thing you 10 said. 11 THE WITNESS: If I am asked to create a piece of 12 software, O.K., one of the first questions I need to ask the 13 user or the person who has asked me to create that software 14 is: Where do you want this software to run? Do you want it 15 to run on a McIntosh? Do you want it to run on Windows? Do 16 you want it to run on Linux? 17 And the software and the instructions and the source 18 code I have to write are different between those applications; 19 O.K. And thus, I would not accidentally create a Windows 20 application while I was creating a Linux application. 21 THE COURT: All right. Mr. Garbus, I will hear you 22 now on that. 23 MR. GARBUS: You'll hear me now? 24 To the extent that this is based -- as I understand 25 the testimony, basically he was asked to do a study and a 252 1 survey of the Linux site and he then prepared a report with 2 respect to that Linux site and that -- 3 THE COURT: That's not what he said at all. 4 MR. GOLD: He's referring to testimony that was in 5 his deposition which I haven't asked questions about. 6 THE COURT: That's not what I heard here this 7 morning. 8 MR. GARBUS: I'm sorry. I thought he was referring 9 to material that he had downloaded. 10 THE COURT: From your client's website. 11 MR. GARBUS: Yes, and that was part of the 12 conclusion, the basis for his conclusion. That's what I 13 thought he said. 14 MR GOLD: We haven't gotten up to that part yet. 15 THE COURT: I don't think he said that, Mr. Garbus. 16 What I understand here is essentially this: And you may as 17 well know what I understand so you can all address it, it is 18 his opinion that DeCSS was written for Windows, not for Linux 19 and he bases that on the following facts: 20 First, that it runs under Windows. 21 Secondly, that he has never seen any reference 22 anywhere to a version of DeCSS that runs under any other 23 operating system. 24 And thirdly, he spoke several sentences about the 25 extremely tight linkage between operating systems and 253 1 applications programs, which he then extrapolated upon to say 2 that you wouldn't accidentally create a program that runs on 3 Windows if you were really designing it for a different 4 operating system. 5 Now, that's what I understood him to say. 6 MR. GARBUS: Thank you. 7 THE COURT: O.K. Now, is there a problem with that, 8 Mr. Garbus? 9 MR. GARBUS: No -- excuse me. I think we can deal 10 with it in cross, rather. 11 THE COURT: O.K., fine. Mr. Gold? 12 Q. Was there anything else that you observed that caused you 13 to reach the conclusion that DeCSS runs under the Microsoft 14 operating system? 15 A. Yes. In my reviews of the Linux logs, this was the study 16 I performed for the MPAA. There was several back and forth, I 17 guess, operations or discussions as the DeCSS program was 18 released into the Linux development environment and it is my 19 opinion based on my review of those logs that DeCSS was 20 provided from outside of the Linux development environment and 21 thus, and some of the exchanges described in those logs 22 described the source of that not even saying he likes -- 23 implicates that he doesn't particularly like Linux and Linux 24 is not the operating system of choice. 25 MR. GARBUS: To the extent that this answer is based 254 1 on hearsay, I move to strike it. 2 THE COURT: This is offered as further support for 3 his opinion under Rule 703. And to that limited extent it's 4 admissible, for whatever it's worth. It's not admissible for 5 the truth of the underlying proposition. It's admissible to 6 assist me in evaluating the man's level of expertise and 7 whether he has logically reached the conclusions that he has 8 just offered. 9 So, on that limited basis, it's received. 10 Q. Mr. Schumann, at this point, I would like to show you 11 certain pages from what has already been premarked as 12 Plaintiff's Exhibit 9 in this case? 13 A. O.K. 14 MR. GARBUS: Your Honor, these pages, as I 15 understand, are two or three or four pages of the documents 16 that I referred to yesterday which are part of the log of 17 about two or three feet high from which he extracted these 18 pages. I would ask that the entire log go in, that this is 19 just a small part of it. 20 THE COURT: Well, you can do whatever you like on 21 cross or at least you can try. 22 MR. GOLD: The entire log has been submitted as a 23 trial exhibit here, all two to three feet of it. 24 THE COURT: Well, look -- 25 MR. GOLD: And they have not been moved in yet? 255 1 THE COURT: Yes, I understand that, the latter. 2 MR GOLD: We are about to do it. 3 THE COURT: It is a Federal case, but let's 4 colloquially not make a Federal case out of this. Whatever is 5 going to come in, in all likelihood, your point is, Mr. Gold, 6 that you want to talk about these three pages. 7 MR GOLD: It is, sir. 8 THE COURT: Nobody has to strain any muscles handling 9 the other three feet of it or however much it is for this 10 purpose. Go ahead. 11 MR GOLD: Thank you, your Honor. 12 THE COURT: Let's call this 9A. We are going to mark 13 this 9A so we can differentiate it from the mountain. 14 Q. Mr. Schumann, have you ever seen those pages before? 15 A. Yes, I have. 16 Q. And how did you get them before today? 17 A. These are extractions from the list of the -- or the stack 18 of the LiViD and I think they are Linux DVD. I think it's 19 called development logs that were supplied to me by the MPAA 20 printouts of those development groups. 21 Q. Turning to the first page of Exhibit 9A, the first page is 22 entitled DeCSS 1.1B has been released. Do you see that? 23 A. Yes, I do. 24 Q. What does that mean? 25 A. This is a posting by Jon Johansen and what he describes 256 1 here is that he has released a DeCSS source code provides -- 2 not source code, excuse me -- the DeCSS executable provides 3 the location to go -- to go click to get that executable and 4 also you'll note in the middle two sentences that he 5 specifically says it works on Win '98 and Win 2K has not been 6 tested on Win NT, not that there is no reference to Linux and 7 any other operating system other than the Windows operating 8 systems in this release of the original. 9 MR. GARBUS: Your Honor, I presume there's a hearsay 10 objection. 11 THE COURT: Again, it's exactly the same point I made 12 before. It's not for the truth. It is here to explain the 13 opinion he gave. 14 Q. Now, turning to the second page of Defendant's Exhibit -- 15 Plaintiff's Exhibit -- after 37 years, it's hard -- of 16 Plaintiff's Exhibit 9A. 17 Does it contain the message that you referred to 18 earlier from Mr. Johansen? 19 A. Yes, it does. And again, this is a -- what you see here 20 is you're kind of, as you look at this, you're kind of 21 stepping into the middle of a discussion and so you'll see 22 that as you read through this text that there's reference to 23 earlier things that have been said, some of them apparently 24 privately, but this message was written by one of the members 25 of the -- of actually this message was written by Jon 257 1 Johansen, again, in reply to one of the members of the DVD 2 group who apparently John Johansen has told this member that 3 he doesn't like Linux. 4 He's not quite sure why he released it to that 5 environment. He really prefers Free BSD, which is another 6 open source unique environment and there appears to have been 7 an angry exchange between these two about the merits of their 8 respective operating systems. 9 And I guess to the point of why does this lead me to, 10 I guess, add or view this as another example that this was not 11 created for Linux, people who are -- who develop things for 12 Linux do not usually go around and then bad mouth the 13 operating system that they're purportedly helping to create. 14 It's not standard operation of the people on that group. 15 Q. Now, earlier, you testified that you downloaded DeCSS from 16 2600.com as an executable utility? 17 A. That's correct. 18 Q. And what does that mean? What is an executable utility? 19 A. An executable utility is the subject to -- it's such a 20 program in its finished form. It's ready to be operated by an 21 end user with no further steps. 22 So, when you get Microsoft word from Microsoft, you 23 are, in fact, getting the executable. You're getting help 24 documentation and lots of other stuff, but you are getting the 25 executable, which means that it is a program that is intended 258 1 for reading and execution by the computer. So, it's 2 essentially in the computer's language, as opposed to the 3 writer's language or in human readable form. 4 Q. And, therefore, the average computer user can use it 5 easily, is that true? 6 A. Absolutely. They just click on it the same way they would 7 click on Microsoft word or any other application on their 8 computer. 9 Q. Now, you mentioned the word or the word source code, what 10 is that? 11 A. Source code is the -- that's the original form of a 12 computer program. It's the form in which the computer program 13 is written and it is in a form that can be edited and 14 understood and modified over time. So, and it's typically 15 written in a computer language, typically program language 16 such as CC or 'C.' 17 Q. Now, getting back to DeCSS, can you tell us exactly what 18 its function is? 19 A. I think as I described a little bit earlier, its function 20 is to read the encrypted content off of a DVD, allow the user 21 to select subsections of that content, if he so desires, 22 select where they want to write the output and then direct the 23 program to perform the actual decryption and copying of that 24 content to the file or to the hard drive. 25 Q. With respect to the audio-visual content stored on the 259 1 DVD, what is the end product of that process? 2 A. The end product of that process is an exact copy of the 3 audio-visual content that was on the DVD with the only 4 difference being that the CSS protection system has been 5 removed from that content. 6 Q. And based on your experience and observations using DeCSS, 7 does it perform any other functions other than to decrypt and 8 copy the CSS-protected contents of a DVD? 9 A. No. 10 Q. Now, if a user was to use DeCSS to decrypt a DVD, and then 11 DiVX'd the movie so that it was stored on his hard drive in 12 DiVX form, what can he do with that decrypted DVD that's been 13 DiVX'd? 14 A. He could do the same things he could with a nonDiVX'd 15 decrypted version, which is he could provide that -- he could 16 make copies of that content to transportable media. DiVX 17 would allow -- this is the DiVX referred to yesterday; I'm 18 sorry -- would allow the writing potentially onto CD-ROM 19 drivers because it could, in fact, compress the content to a 20 smaller size. 21 It would allow him to again transfer the files, 22 provide them to people on the Internet, make them available on 23 a website, e-mail them to friends potentially, put them on 24 tapes, put them on transportable hard drivers, essentially 25 anything you could do with a digital file provided that the 260 1 place you're sending it to has the appropriate storage 2 capacity, could be done with those files. 3 Q. If the decrypted DiVX'd DVDs were offered on the Internet 4 for downloading by anyone, would any of the people who 5 downloaded have to DiVX it again? 6 A. No, absolutely not. 7 Q. So, if approximately 100,000 people got that decrypted 8 DiVX'd DVD, got it transmitted to their computer, not one of 9 them would have to DiVX it again? 10 A. No. I mean, that's the nature of these compression 11 systems is that you don't need to recompress it. It's already 12 compressed, and then all you need is the decompression 13 mechanism when you want to play it back. 14 So, you don't need to go through the process and, in 15 fact, a design -- in many cases, it's a design constraint of 16 these compression systems that they are allowed to spend a lot 17 of time on the compression side in the direction of making the 18 depression or the viewing of the content to be very quick and 19 effective. 20 You'll often see these compression systems have very 21 long compression times, but that's because they're intended to 22 be run only once and it's irrelevant in the distribution of 23 the content. 24 Q. And how long -- what is the computer lines found in most 25 universities today? 261 1 MR. GARBUS: Objection. 2 Q. Can you answer that? 3 MR. GARBUS: I'll object to it. 4 THE COURT: Sustained; lack of foundation. 5 Q. Do you know anything about lines used by any colleges or 6 universities and made available to their students? 7 A. Are you asking about networking connections and my 8 understanding of networking? 9 Q. Yes. 10 A. Yes, I have a significant understanding of networking and 11 how modern computer networks work. 12 Q. Based on that knowledge, how long would it take a college 13 student having access to the university lines to have a movie 14 transferred and downloaded? 15 MR. GARBUS: I object. 16 THE COURT: Sustained; no foundation. 17 Q. Going back to that DiVX'd decrypted DiVX'd DVD, could the 18 owner of it, having it on his hard drive, join a file-sharing 19 program on the Internet and offer that movie to anyone in that 20 file-sharing program? 21 A. Absolutely. 22 Q. Are you familiar with the term "hyperlink"? 23 A. Yes, I am. 24 Q. How is it used in connection with the Internet? 25 A. A hyperlink is the kind of a core mechanism, if you will, 262 1 of what's -- of the worldwide web and the interfaces that 2 users have there. It's the mechanism by which a user is able 3 to -- to, I guess, link or to jump to other relevant pages. 4 So, when you're looking at a worldwide web page, when 5 the text says, you know, go here for this or there's a 6 highlighted text and you click on it and you go to another 7 page, that is typically a hyperlink or it's commonly referred 8 to as "a link." 9 And what it does is it then points you and directs 10 your browser. It's essentially a software instruction, your 11 browser to go to another location to retrieve a new page. 12 Q. Does the word "linking" and the word "hyperlinking" 13 describe the same thing? 14 A. Yeah, linking is the more typically-used shorthand and it 15 refers to what in the literature is known as "hyperlinking." 16 Q. Are hyperlinks useful to Internet users? 17 A. Absolutely. 18 Q. And how? 19 A. They are the basic mechanism upon which the worldwide web 20 is built. It's the -- it's the critical, I guess, feature 21 that you will -- that allows one user to go from one page to 22 another in an easy and seemless fashion. 23 Q. How do people use hyperlinks on the Internet? 24 A. They use them in many ways. They use them to link -- 25 MR. GARBUS: I'll object. 263 1 I assume Mr. Gold can lay a proper foundation. I 2 presume this witness has used it, but I think that should be 3 done first. 4 THE COURT: Well, we can do that, but this is a 5 matter really almost for judicial notice. I mean, if you are 6 serious about that, Mr. Garbus, we will do it, but it's a 7 waste of time; isn't it? 8 MR. GARBUS: I'll withdraw it. 9 THE COURT: O.K., go ahead. 10 Q. You were describing how people use hyperlinks. 11 A. Yeah. They are used in several ways. They are used both 12 to link -- when you're creating a site inside of your domain, 13 so, if I was creating -- when we are creating our site for 14 Cinea, we will have a plain page and then we will have 15 subsidiary pages below that. 16 So, we will, on our plain page, have links that link 17 to more detailed information such as, you know, contact 18 information, how do you contact Cinea, and so we'll have a 19 link on that main page to the subsidiary pages within our site 20 that provides that information. 21 And then we'll also obviously have links on that site 22 back up to our main page. So, you link internally and then 23 you also link externally to your site. So, if you have 24 information that you believe is of interest or that you want 25 to make available to other people from your site, you can 264 1 create those links and point them elsewhere in the Internet. 2 Q. When you visited the 2600.com website in connection with 3 your work on DeCSS, did you view any hyperlinks on the site 4 that appeared to be related to DeCSS? 5 A. Yeah, absolutely. 6 Q. When was your last visit? 7 A. My last visit was I believe last week to the site. 8 Q. And how many hyperlinks related to DeCSS did you note? 9 A. There were -- I didn't count them, but there were 10 hundreds, I'm sure. 11 Q. Were you asked to do anything with respect to the 12 hyperlinks on the 2600.com website? 13 A. Yes, I was. I was asked to follow -- to pick a set of 14 those links and to, in fact, download -- see if I could 15 download DeCSS from those -- from those sites and through 16 those hyperlinks, I guess. 17 Q. When was the first time that you conducted such an 18 examination? 19 A. I conducted such the -- the hyperlink examination in, I 20 guess it would have been January or February of this year for 21 the first time. 22 Q. And what was the last time? 23 A. The last time would have been last week. 24 Q. Let me show you what's been marked as Exhibit 97 for 25 identification. First, sir, can you tell me if you know what 265 1 Exhibit 97 is? 2 A. Yes. This is a record or a trail, if you will, that I 3 created of my last pass through 2600. 4 Q. Directing your attention to the top of page 1 of the 5 document and the large "Stop the MPAA" banner. Do you see the 6 words "mirrors" under that? 7 A. Yes, I do. 8 Q. What is that? 9 A. That is the link, and this is one of these internal links, 10 and this link then takes you -- I believe the following page 11 shows the beginning of the page it's linked to and that page 12 then contains a list of mirror sites. 13 And "mirrors" are a commonly used term in the web to 14 refer to sites that have copies of something that you are 15 trying to provide to the public. 16 THE COURT: Can't we shortcut this? I'm assuming that 17 there is no issue of fact as to the proposition that the 18 defendant's website has links to sites that are mirrors DeCSS 19 and from which executable copies of DeCSS may be downloaded. 20 Is there any dispute about that, Mr. Garbus? 21 MR. GARBUS: I think executable and source, there are 22 certain links. 23 THE COURT: I'm sorry? 24 MR. GARBUS: With respect to source code and 25 executable code, yes, I understand there are links to those 266 1 sites. 2 THE COURT: All right. So stipulated, Mr. Gold? 3 MR GOLD: Yes. 4 THE COURT: Let's move along. 5 Q. Did you click on any of the hyperlinks when you visited 6 the site? 7 A. Yes, I did. 8 Q. Which ones? 9 A. I clicked on the, I think four -- four of the sub-sites. 10 I would have to look at the exact to remember the names, if 11 you want me to. 12 Q. Did all the hyperlinks work? 13 A. Yes, all the ones I clicked on, I think they all did. 14 There may be one or two that did not. 15 Q. Turn to page 4 of Exhibit 97. Were you able to download 16 DeCSS? 17 A. From that site, yeah, absolutely. And this would have 18 been the site -- I can't see the site name here. The copy is 19 very bad. 20 Q. Did you make a download? 21 A. Yes, absolutely, I did. 22 Q. And -- 23 MR. GARBUS: Your Honor -- 24 Q. Is the print on it of the download in this exhibit? 25 A. Yes, it is. The following page shows the download taking 267 1 place. 2 MR. GARBUS: I think we can save time. I think that 3 these pages -- I would stipulate that these are pages that he 4 downloaded from. He has some comments on the pages that are 5 typed, I presume that that's not necessary. 6 Subject to the other objections, I would have no 7 objection to these documents going in. 8 THE COURT: Subject to what other objections? 9 MR. GARBUS: Well, it might be hearsay. It might be. 10 THE COURT: I appreciate the offer, but I don't know 11 what I'm getting. 12 MR. GARBUS: I guess what I don't know what I'm 13 getting is I don't know when if a site has CSS source or 14 object code, some of the sites have inaccurate source and 15 object codes. So, I can't tell you whether this is accurate 16 or inaccurate, but I do -- willing to stipulate that the sites 17 refer to the fact that they have a source and executable code. 18 THE COURT: All right. So, let me see if I can 19 restate this and maybe we can get a stipulation and we will 20 shorten this part of the examination. 21 I take it it is stipulated as follows: First, that 22 Plaintiff's Exhibit 97 is a series of screen shots made by the 23 witness on his last visit to 2600.com and in certain instances 24 which are indicated by the URL lines on a particular screen 25 shots and visits to sites reached through links that he found 268 1 on 2600.com. 2 Are we O.K. so far, Mr. Garbus? 3 MR. GARBUS: Yes, we've agreed that the commentary on 4 the pieces of paper are stricken and there's no stipulation 5 that the sites reached, whatever the screen pages said, in 6 fact, DeCSS source or executable code. 7 MR GOLD: What are the notes that you want stricken? 8 MR. GARBUS: In other words, on each page, for 9 example, it says starting at the -- he has the direction of 10 how he got in. 11 MR GOLD: Well, I can ask the witness what those 12 words on each page mean and he'll -- 13 THE COURT: Let me just finish. 14 MR. GOLD: Yes, sir. 15 THE COURT: I said (1) because that was only the 16 beginning. 17 Now, Mr. Garbus, are you prepared to stipulate to 18 what I read off just a moment ago, and I'll reread it? 19 First, that Plaintiff's Exhibit 97 is, putting aside 20 the little parenthetical typed comments at the top of the 21 page, a series of screen shots made by the witness on his last 22 visit to 2600.com and in certain instances which are indicated 23 by the URL lines on particular screen shots of visits to sites 24 reached through links and that he found on 2600.com. 25 So far so good? 269 1 MR. GARBUS: So far so good. 2 THE COURT: Mr. Gold, so far so good? 3 MR GOLD: Yes, your Honor. 4 THE COURT: That much is stipulated. 5 Second, can we also have a stipulation, Mr. Garbus, 6 that if asked, the witness would testify that the little 7 typewritten commentary to which you referred is prepared by 8 him and reflects his description of what's on the pages that 9 have the typewritten commentary? 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 270 1 THE COURT: All right. So stipulated, Mr. Gold? 2 MR. GOLD: Yes, your Honor. 3 THE COURT: Is there anything else you wanted out of 4 this line of questioning, Mr. Gold? 5 MR. GOLD: No, I was going to go on to whether he 6 download DeCSS. 7 THE COURT: Fine. Is there any objection to my 8 receiving Plaintiffs' Exhibit 97? 9 MR. GARBUS: No, your Honor. 10 THE COURT: 97 is received. We have the stipulation. 11 I hope we just saved a half hour. Let's take a 15 minute 12 break. 13 (Plaintiffs' Exhibit 97 received in evidence) 14 THE COURT: While we are waiting for the absentees, I 15 just thought I would mention to you that we have the pleasure 16 of the company of Judge Kenji Shinoda from the District Court 17 of Tokyo, Japan who is here in the United States and he has 18 decided to observe this trial, and he is most welcome. 19 MR. HERNSTADT: Your Honor, we request one 20 clarification on Plaintiffs' Exhibit 97. It's 23 pages long, 21 and in terms of I think to clarify the stipulation, pages 1 22 through 13 are screen shots of Mr. Schumann visiting four 23 sites that he found on the 2600 mirror list and used a 24 hyperlink to move from the 2600 site to the site that appears 25 in the screen shot. 271 1 Then pages 14 to 23 are screen shots of what 2 Mr. Schumann did on his computer afterwards that shows him 3 showing the four DeCSS programs that he downloaded on his hard 4 drive, and then it shows him doing some kind of a comparison 5 program that was on his hard drive, and then the results of 6 them, and then it shows him using the DeCSS program, one of 7 the DeCSS programs to decrypt a couple of files from the movie 8 You Got Mail. I think we are prepared to stipulate that's 9 what the screen shots are and that there is commentary of his 10 on the top to that effect. 11 THE COURT: I think that's right. Mr. Gold? 12 MR. GOLD: Yes, it is right, but there are some other 13 things I want to go into about those tests. 14 THE COURT: That's fine, but the stipulation is 15 modified to the extent indicated. I think you misspoke in one 16 respect. That is, you said pages 1 through 13 were visits to 17 four other sites. Some of them are, but some of them are the 18 2600.com pages, right? 19 MR. HERNSTADT: That's right. It shows him going to 20 2600, finding, using the hyperlink to visit another site and 21 then going back to 2600 to find a link, using that link to 22 visit a different site. 23 THE COURT: Right. 24 MR. HERNSTADT: The plaintiffs have agreed to give us 25 or to try and find clearer copies, because I can't read on the 272 1 photocopy the results of the comparison test. 2 MR. GOLD: We will try to get clearer ones, but you 3 can always walk over a couple of blocks and look at them. 4 BY MR. GOLD: 5 Q. Mr. Schumann, did you download the executable utility 6 DeCSS from any of the sites that 2600 linked you to? 7 A. Yes, I did. 8 Q. How many? 9 A. In this particular example, four sites. 10 Q. Did you perform an examination of any of the four? 11 A. Yes, I did. I compared the four to insure that they were 12 in fact all truly the DeCSS program, that they were identical 13 and one in the same, to insure that what purported to be DeCSS 14 was in fact DeCSS. 15 Q. Did you try to do anything with the effect with your -- 16 let me withdraw that. 17 Did you do anything with any of the executable 18 utilities that you downloaded other than what you have just 19 described? 20 A. Yeah, after I had compared the four, and knowing now that 21 they were identical, I could then use only one of them to 22 continue the testing of running DeCSS, to insure that it was 23 in fact then able to decrypt the contents. 24 And subsequent to that, and there are no screen shots 25 here, after performing the DeCSS I then went through the 273 1 process of playing resultant clear text files to insure that 2 they were in fact viewable by the viewers. 3 Q. What was the movie? 4 A. I think it was You've Got Mail in this particular case. 5 Q. What player did you use to play the movie back? 6 THE COURT: Are we just doing Tom Hanks and Meg Ryan 7 in this case? 8 MR. GOLD: Meg Ryan is my second favorite lady in the 9 world. 10 THE COURT: I wasn't going to pry, Mr. Gold. 11 Q. How was the quality of the playback? 12 A. The quality of the playback, as one would anticipate, was 13 identical to the quality of the playback from the encrypted 14 DVD. 15 Q. When you last visited the list of links on the 2600.com 16 website, did you notice anything at the end of that list? 17 A. Yeah, the list, it's not shown here because I was not 18 doing a representative sample of the entire page of links, but 19 at the bottom of that page the 2600 website has a whole 20 section where they ask people to mirror the sites, to provide 21 them information about those mirrors, and basically encourages 22 people to further copy DeCSS and provide them information 23 where it is. 24 MR. GARBUS: I will object to his testimony about the 25 sites or what the documents indicate until the documents are 274 1 introduced into evidence. 2 THE COURT: Sustained, but is there any real dispute 3 about this, Mr. Garbus? 4 MR. GARBUS: Yes. It's his interpretation of it. 5 THE COURT: I'm not sure I heard any interpretation. 6 MR. GOLD: I didn't hear any interpretation. 7 THE COURT: He said that your client's site has a 8 section where they ask people to mirror the sites and provide 9 them with information about the mirrors. So, what do you 10 object to? 11 MR. GARBUS: I don't object to what you just said. 12 THE COURT: I take it it's stipulated your client 13 does in fact do what I just said. 14 MR. GARBUS: Yes. 15 THE COURT: And looking back at the realtime 16 transcript, what you were I guess objecting to was the 17 language "basically encourages" and so on. 18 MR. GARBUS: Yes. 19 THE COURT: Fine. 20 Q. Did you ever hear the term "input box" in connection with 21 2600.com? 22 A. Yes. 23 Q. Tell us what that is. 24 A. The bottom of that page, as part of the mechanism that 25 2600 provides, has an input box where viewers of 2600 or 275 1 people who have done mirrors can enter the URL or the address 2 of where they have put those mirrors, and then they have a 3 mechanism for sending that information to 2600, and I guess 4 it's my opinion based on that, and the result that this list 5 exists, that 2600 then takes that information and builds this 6 list at least partially from that information. 7 MR. GARBUS: I object to it. 8 THE COURT: Sustained as to that part of it, the 9 opinion, but I do hope that we are not just going to do 10 essentially what is conducting a class on the rules of 11 evidence on stuff that really isn't controversial. I take it 12 your client does build the list. Obviously it's got the list 13 on its website. Let's go, Mr. Gold. 14 Q. What is a URL, Mr. Schumann? 15 A. URL stands for Uniform Resource locator. It's the 16 technical term for I guess the English name that's typically 17 used to identify websites, you know, the www.2600.com as an 18 example of the URL. 19 Q. Can the URLs be embedded within the pages of the sites 20 themselves to provide hyperlinks to other pages? 21 A. Yeah. What happens is that typically if you look at HTML, 22 which is the language most of these pages are written, HTML 23 specifically has effectively a programming language, and what 24 it does is it allows you to, you can define what the text 25 looks like on the screen, and then you define the instructions 276 1 that are given to the browser when that text is clicked. 2 Okay? So I can write the text "click here" and I can write 3 the text of "here" and then in my HTML the "here" will be the 4 text that's shown to the user, and then www.Cinea.com might be 5 the URL that's associated with that text. So, when the user 6 clicks on "here" the browser executes a search and retrieves 7 the page that said www.Cinea.com. Now it's certainly possible 8 to make that text and the URL identical, so in the case of 9 what's on these 2600 websites the text that's displayed is -- 10 I didn't look at them all, but I have no reason to believe 11 it's not true that the text that's displayed is identical to 12 the actual URL, and that's easy to look at in the source code 13 for the HTML for the page. 14 Q. You have testified that you were able to save the film 15 You've Got Mail in your computer hard drive. Did you save the 16 entire movie? 17 A. In this particular example that's shown here, I did not, 18 because this was run on a lower end laptop that did not have 19 enough hard drive storage to store the entire movie. 20 Q. How much disk drive space do you have on your personal 21 computer? 22 A. On this particular laptop there was about 4.6 gigabytes of 23 storage. On the previous example, when I did this prior to I 24 believe it was my third declaration in this case, that was 25 done on a standard low end consumer player, and that one had 277 1 10 gigabytes of hard drive space. 2 Q. In terms of your computer, approximately 5 gigabyte hard 3 drive, is that a standard size for hard drives based on your 4 knowledge and observation and experience? 5 A. In the laptop space, 5 gigabytes is probably the low end 6 of what is available in laptops today. For home personal 7 computers 5 gigabytes is way too small to be sold. I think 8 the base size now is 10 to 15 gigabytes for even the lowest 9 end. I'm sure there are super low end ones, but for the basic 10 consumer it's at least 10, potentially 15 gigabytes. 11 Q. Have you ever observed any trends in terms of the amount 12 of hard drive space that's currently available on a standard 13 computer? 14 A. Oh, absolutely. I mean it's a well known fact in the 15 computer industry -- 16 THE COURT: Mr. Garbus? 17 MR. GARBUS: I object to the question. 18 THE COURT: Isn't this perfectly obvious to anybody 19 who knows anything about this field? It's in the New York 20 Times, it's on the Wall Street Journal. 21 MR. GARBUS: I don't know his answer. 22 THE COURT: It's going up. I mean everybody knows 23 it's going up. 24 MR. GARBUS: Is that the answer, the sole answer? 25 THE WITNESS: I mean the fact of the matter is that 278 1 the hard drive space and computing power in general is 2 collapsing on at least an order of 2X a year, and hard drive 3 space in particular is going down faster than that at price 4 points. I mean it has gone through a tremendous decrease in 5 cost for hard drive space in the last four or five years. 6 MR. GARBUS: I will object to the answer. 7 THE COURT: I will strike that answer. 8 MR. GARBUS: That's what I understood the answer was 9 going to be. 10 THE COURT: You have greater prescience than I do. 11 MR. GARBUS: No, I just read his affidavits. 12 THE COURT: Do you want to try again, Mr. Gold, to 13 get to the part you really want? 14 Q. Has the amount of hard driver space available in computers 15 sold to the general public been increasing at a rapid rate? 16 A. Absolutely. 17 MR. GOLD: Thank you, your Honor. No further 18 questions. 19 THE COURT: Thank you, Mr. Gold. Mr. Garbus. 20 MR. GARBUS: We worked that out nicely. 21 CROSS-EXAMINATION 22 BY MR. GARBUS: 23 Q. By the way, Mr. Gold asked you if you were retained by 24 Proskauer in this case and you said yes. Is that true? 25 A. Yes. 279 1 Q. And prior to the time that you were retained by Proskauer 2 in this case, you had been retained by the MPAA, is that true? 3 A. That's correct. 4 Q. And since you had been retained by Proskauer in this case, 5 because of your good work you have been retained by Proskauer 6 in another case, is that right? 7 A. Not another case, no. 8 Q. Tell me what it is, without mentioning the name of the 9 client. 10 A. I was hired by Proskauer for another matter, but there was 11 no client involved. It was an internal Proskauer affair. 12 Q. Now, your company was formed in 1996, is that right? 13 A. 19 -- 14 Q. 1999. Pardon me. 15 A. Yes. 16 Q. And you own 86 percent of that company, is that right? 17 A. Approximately, yes. 18 Q. And 50 percent of the income for that company this year 19 comes from either Proskauer or the MPAA, is that right? 20 A. That's certainly possible, yes. 21 Q. You say it's certainly possible. Is it right or is it 22 wrong? 23 A. So far this year that is accurate, but I don't anticipate 24 that being true at the end of this year. 25 Q. Now, your firm consists of two people, is that right? 280 1 A. No, right now it's myself, I have two minority partners, 2 and then we have two employees at this point in time. 3 Q. And for this year thus far it would seem that the primary 4 source of your income will be from Proskauer and the MPAA? 5 A. Thus far this year, yes, that's accurate. 6 Q. Had you ever done any work for Proskauer before? 7 Withdrawn. 8 Let me show you -- by the way, you remember 9 testifying at the deposition back in May when I asked you some 10 questions? 11 A. Yes. 12 Q. And do you remember talking about an article in the 13 Toronto Star? 14 A. Yes, I do. 15 Q. Now, do you know of anyone who has used DeCSS and then 16 compressed it and then sent it to some other computer? 17 THE COURT: The question is not clear, Mr. Garbus. 18 Used DeCSS, compressed DeCSS? 19 Q. Used DivX and then sent it to another computer. 20 THE COURT: Used DivX to do what? 21 MR. GARBUS: To compress the movie. 22 THE COURT: Okay. 23 A. I have not personally done that, but I have seen certainly 24 plenty of articles of people who have. 25 Q. Did Proskauer at any time ask you as an expert to try and 281 1 use DeCSS to encrypt a DVD and then to use DivX and then to 2 send it to see how long the entire process would take? 3 A. They did not. 4 MR. GOLD: Objection, your Honor. 5 THE COURT: What is the objection? 6 MR. GOLD: I think that he asked him about encrypting 7 a DVD. 8 THE COURT: Sustained. 9 Q. Now, do you know of anyone who has had any experience in 10 using DeCSS to decrypt a film and then to compress it and then 11 to send that to some other computer? 12 A. I certainly have -- again in relation to the articles and 13 discussions in other industry environments, it appears very 14 clear that this is happening, but I personally do not know 15 anyone who has done so, no. 16 Q. And at the deposition you testified that the only instance 17 you knew of it was the article referred to in the Toronto 18 Star, is that right? 19 A. At that time, that was my only knowledge, yes. 20 Q. Let me show you what has been marked as Defendants' 21 Exhibit I. Does this refresh your recollection that that is 22 the Toronto Star article that you referred to in your 23 deposition at page 64 and in your affidavit, the third 24 affidavit? 25 THE COURT: What are you asking him? Whether he 282 1 remembers the page number or what? 2 MR. GARBUS: Remembers reading the article. 3 THE COURT: Do you remember reading this article, 4 Mr. Schumann? 5 THE WITNESS: This appears to be effectively the 6 article. I mean I couldn't swear that it's word for word the 7 same but ... 8 Q. It's the same article that's referred to in your affidavit 9 as the Toronto Star article of May 4 that you have read? 10 A. It seems to have the same gist of discussion that I read. 11 MR. GARBUS: Can I just read the article briefly? 12 THE COURT: It hasn't even been offered into 13 evidence. 14 MR. GARBUS: I offer it. It's their exhibit, 15 Plaintiffs' Exhibit 78. 16 MR. GOLD: For what purpose? 17 MR. GARBUS: What the article does is it shows the 18 difficulties. 19 THE COURT: For what purpose are you offering it? 20 MR. GARBUS: To show how it's nearly impossible to 21 use DivX and DeCSS -- 22 MR. GOLD: Objection. 23 THE COURT: Sustained. Hearsay. 24 Q. Did you on the basis of this article form any opinion as 25 to the difficulties of using DeCSS and DivX to download a film 283 1 and then to send it? 2 MR. GOLD: Your Honor, we haven't offered this 3 witness as a DivX expert. 4 MR. GARBUS: It's in his affidavit. 5 THE COURT: Let me just look back over the direct. 6 MR. GARBUS: He testified, as I remember, about 7 sending this material over the Internet. I presume that that 8 implies the ability to make it, to compress it and then to 9 send it. 10 THE COURT: Give me a moment to look at my notes. 11 The witness testified at one point that if a user 12 used DeCSS and then DivX'd the movie, he could do the same 13 things with it as with any nondecrypted version, including 14 copy it to transportable media like CD-ROM, transfer files 15 over the Internet, e-mail it to friends presumably, put it on 16 tape or on a hard transportable media I guess as long as there 17 was enough storage capacity. Overruled. 18 Mr. Gold? 19 MR. GOLD: Your Honor, we didn't even ask him if he 20 DivX'd it. He certainly knows all about transmitting files 21 and how any file can be transmitted, but we didn't even ask 22 him if he DivX'd it. 23 THE COURT: No, I think you opened the door a little 24 bit at least. 25 MR. GARBUS: May I read the article? 284 1 THE COURT: No. 2 Q. Can you tell us, to the best of your recollection, what 3 happened when the person who wrote that article tried to use 4 DeCSS and then to compress the file? 5 MR. GOLD: Objection, your Honor. 6 THE COURT: Sustained. 7 Q. Now, let me show you Plaintiffs' Exhibit 78. You testify 8 as to your knowledge as to whether Jon Johansen had been 9 involved in using DeCSS for links, and you testified that it 10 was on the basis of articles that you had read. Do you recall 11 that? 12 A. I don't believe -- 13 MR. GARBUS: I would like the Proskauer lawyers to 14 stop signaling the witness. 15 THE COURT: Mr. Garbus, I was looking at the 16 Proskauer lawyers, and if they were signaling the witness, the 17 President was flying through the back of the courtroom. It 18 was not happening. 19 MR. SIMS: We don't have a copy of the exhibit, your 20 Honor. 21 MR. GARBUS: Plaintiffs' Exhibit 78, I think you have 22 a copy of it. 23 MS. MILLER: May I? 24 THE COURT: Yes, why don't you go get it. 25 MR. GOLD: We have it, your Honor. Thank you. 285 1 THE COURT: What is the question, Mr. Garbus? 2 Q. Is this one of the articles, Plaintiffs' Exhibit 78, 3 entitled "Meet the Kid Behind the DVD Hack" that you read? 4 A. I'm sorry. Is part of your earlier -- is this a 5 continuation of your earlier question? 6 THE COURT: Did you read that article, Mr. Schumann? 7 THE WITNESS: I don't specifically recall whether or 8 not I read the article. 9 THE COURT: Okay. Next question, please. 10 Q. By the way, how did you get involved in this with 11 Proskauer? Who contacted you? What did you do, and what did 12 they ask you to do? 13 A. I was contacted by a gentleman from Proskauer named Bill 14 Hart, and at the time I was first contacted I was asked if I 15 would be willing to be involved in this case and specifically 16 to initially at least to do an affidavit related to this case, 17 related specifically in that case to DeCSS and where it came 18 from and what it did. 19 Q. And what happened next? 20 A. What happened next is I agreed to -- again we did this all 21 verbally, there is no written agreement -- but I agreed to 22 work with the plaintiffs and the Proskauer firm in this case. 23 Q. And at some time did you prepare a report concerning the 24 work you had done for Proskauer? 25 A. A report concerning the work I had done for Proskauer? 286 1 Q. Or for the MPAA? 2 A. Not for Proskauer, no. I think as I testified earlier I 3 was hired by the MPAA to do an analysis of the DVD or DeCSS 4 development in the Linux community based on the logs, and I 5 did a report on that. 6 Q. And did you submit that report, or to your knowledge was 7 that report submitted to the Court on the motion for 8 preliminary injunction? 9 A. I have no knowledge of that. It was not an attachment to 10 my declaration. 11 Q. You submitted three declarations in this case? 12 A. Yes, I have. 13 Q. Did you submit that report as part of any of those 14 declarations? 15 A. No, I did not. 16 Q. Now, when you did the report, did you first do an interim 17 report and then a final report? 18 A. For the MPAA? 19 Q. Yes. 20 A. Yes, I did a short interim report and then I did a more 21 detailed final report, yes. 22 MR. GARBUS: Your Honor, this is one of those 23 documents that I referred to at the end of the day yesterday. 24 I think it has -- and I may be wrong -- it has attorney/client 25 work product. 287 1 MR. SIMS: Your Honor -- 2 THE COURT: Mr. Sims, that's enough. 3 MR. SIMS: I just meant we waive privilege as to that 4 document. I was just advising him that there is no claim of 5 privilege to that document. I am sorry I was misunderstood. 6 THE COURT: All right. 7 MR. GARBUS: Let me show you a copy of that document. 8 THE COURT: The document marked? 9 MR. GARBUS: I have Defendants' Exhibit CS. 10 Q. Now, prior to the time that you prepared that report, did 11 you get any documents from the MPAA? 12 A. Yes, I did. This report was based on a stack of documents 13 I received from the MPAA, yes. 14 MR. GARBUS: Let's mark as the next exhibit the 15 documents, the stack of documents from the MPAA. 16 Your Honor, can I just take a two minute break? I 17 have to find some documents, if I may, just two minutes. 18 THE COURT: All right. Quarter to 12. 19 (Recess) 20 THE COURT: All right, Mr. Garbus. 21 BY MR. GARBUS: 22 Q. Now, Mr. Schumann, you indicated before that the documents 23 were given to you by the MPAA. This was when, back in 24 November? 25 A. Yes, November of 1999. 288 1 Q. What did those documents consist of? 2 A. They consisted of printouts from what were essentially a 3 chat group or two development groups within the Linux 4 community that were focused on the development of DVD play 5 back capability for Linux. 6 Q. You say that were -- what is the LiViD group itself? 7 A. LiViD was one of these development groups that was focused 8 on the creation of DVD playback capability. 9 Q. For the Linux machine? 10 A. Yes, for the Linux operating system, yes. 11 Q. When was the LiViD group started? 12 A. I don't know exactly when they started. The logs I 13 received began in I think June of 1999, and it appears they 14 were active significantly before that time. 15 Q. Did you make any attempt to get the logs from before June 16 of 1999? 17 A. No, I did not. 18 Q. And did you see a discussion on the -- by the way, do you 19 understand that most of the people or many of the people on 20 the LiViD group are Linux users? 21 A. That would I guess appear to be kind of self-evident. The 22 people who are in that kind of area tend to be very biased in 23 terms of what machines they run and what operating systems 24 they like, and people who do Linux are very passionate about 25 their operating systems, so they wouldn't have been there if 289 1 they didn't care. 2 Q. And during the course of your investigation or your 3 observing of these logs, did you come across the name Derek 4 Fawcus? 5 A. Yes, I did. 6 Q. And did you come across a number of named people who were 7 involved in the LiViD group? 8 A. Absolutely, there were a number of active members of that 9 group. 10 Q. And how did you know, for example, that Derek Fawcus was 11 an active member of the group? 12 A. In my report part of the report talks about what I called 13 people who are active members of the community or people who 14 are active developers in that community, and as you went 15 through the -- and the paper I got was a very large stack, a 16 very large number of posts into these news groups. 17 Going through it, it became very obvious who was very 18 involved in helping to create this both from a technical 19 perspective as well as providing their time, energy and their 20 skill sets into the environment. Derek Fawcus was one of 21 those members. 22 Q. Now, do you know what css-auth is? You have heard of 23 that? 24 A. Css-auth? 25 Q. Yes. 290 1 A. Yes, css-auth is a program that exists today in the Linux 2 environment. 3 Q. It does the same things as DeCSS? 4 A. No, it does not. 5 Q. How is it different? 6 A. It performs a small portion of what DeCSS does. Earlier I 7 talked about that one of the subfunctions necessary before you 8 can access the content of the DVD is that you need to unlock 9 the DVD drive so that the DVD drive is happy or believes it's 10 talking to a trustworthy host, and css-auth does that 11 particular function. 12 Q. In connection with css-cat? 13 A. No, css-auth is a stand-alone program. 14 Q. What does css-auth work with? 15 A. It's a program that runs on the Linux operating system. 16 Q. Now, with respect to Derek Fawcus, when for the first time 17 did you see him appear in the Linux dialog, on the LiViD 18 group? 19 MR. GOLD: Your Honor, my objection is I don't 20 understand the relevance of this line, and I think it's past 21 anything I opened up on direct. 22 THE COURT: Mr. Garbus? 23 MR. GARBUS: The question I understood that 24 Mr. Schumann answered was that he understood that DeCSS was 25 not originally created for the purposes of a Linux open source 291 1 system. I think that if you look at the Linux logs, and if 2 you look at his report, you see that it specifically was 3 created for the Linux Group. If we don't have a disagreement 4 on that, then I won't pursue it. But that seems to me, what 5 the logs and report indicate, and the function of the report 6 that he was hired to do says Linux CSS development analysis. 7 THE COURT: Mr. Gold? 8 MR. GOLD: I'm trying to remember exactly what Mr. 9 Garbus told me that we have an agreement about. And I did not 10 hear enough of that to know. I apologize. 11 THE COURT: I didn't understand Mr. Garbus to say 12 that he thought he had an agreement with you. 13 MR. GOLD: Oh. 14 THE COURT: If he was asking you to agree to 15 something, then I'm confident you are not going to agree to 16 it. 17 MR. GOLD: That's right. But I don't remember every 18 word he said. 19 THE COURT: Look, you elicited from this witness his 20 opinion that DeCSS was not developed for Linux, and he gave 21 the basis for his opinion. Mr. Garbus is now seeking to 22 challenge the correctness of the opinion. That's what I 23 understand is going on. Now, is there some reason he 24 shouldn't be allowed to do that? 25 MR. GOLD: The basis for the opinion were several 292 1 pages from these logs. There may have been thousands. 2 THE COURT: That's exactly Mr. Garbus's point. 3 MR. GOLD: Thank you, your Honor. 4 THE COURT: Go ahead, Mr. Garbus. 5 MR. GARBUS: I would like to offer into evidence some 6 of the thousand pages. Excuse me before I approach the bench. 7 If we can have the witness take a look at the 8 documents that are marked Exhibit AA. 9 Your Honor, may I approach the bench and give this to 10 the witness? 11 THE COURT: You may approach the witness. 12 Q. Mr. Schumann, would you take a look at those documents and 13 tell me to the best of your recollection if these were the 14 documents that were furnished to you originally I guess back 15 in November and December by the MPAA? 16 A. How much time do I have? I will be happy to take a quick 17 look, but -- 18 THE COURT: The record should reflect that it appears 19 that there is at least 1500 pages in the exhibit. 20 MR. GOLD: Your Honor, if I may, this witness said 21 that he based his opinion on three pages in the logs. Now, if 22 Mr. Garbus believes there are other pages in the logs which 23 refute that or might change the witness's testimony, then I 24 would suggest he should show those pages to the witness and 25 ask him about them. 293 1 THE COURT: Are you folks prepared to stipulate that 2 Defendants' Exhibit AA is in fact the logs that were given to 3 the witness? 4 MR. GARBUS: Yes, your Honor. 5 THE COURT: Mr. Gold, are you so prepared? 6 MR. GOLD: Do you have a copy of Plaintiffs' Exhibit 7 9 before the witness? 8 THE COURT: No, he has Defendant's AA. 9 MR. GOLD: I don't know about that, but I know this 10 is the logs (indicating), and it's Plaintiffs' Exhibit 9. If 11 it's identical to that, it's going to take a little while. 12 MR. GARBUS: I will take it in in either form. I 13 accept Mr. Gold's statement. 14 THE COURT: So, let's work with Exhibit 9. You both 15 stipulate that Exhibit 9 are the logs that were given to the 16 witness, do you? 17 MR. GOLD: Yes, I do, your Honor. 18 THE COURT: Mr. Garbus? 19 MR. GARBUS: I will just take a look at it, but I 20 presume it's the same thing. 21 THE COURT: Believe me, Ms. Miller, I just want one 22 of them. 23 MS. MILLER: The entire exhibit comprises two 24 binders. 25 THE COURT: And "want" in this context is a term of 294 1 art. 2 MR. HERNSTADT: Your Honor, may I get? 3 THE COURT: Yes, you are welcome to have the other 4 papers back, Mr. Hernstadt. 5 Some of my colleagues out West think that litiga