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 17, 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 WILLIAM M. HART 18 FRANKFURT, GARBUS, KLEIN & SELZ 19 Attorneys for Defendants BY: MARTIN GARBUS 20 ERNEST HERNSTADT DAVID ATLAS 21 22 23 24 25 2 1 THE CLERK: Universal versus Reimerdes. Is the 2 plaintiff ready? 3 MR GOLD: Ready for the plaintiff. 4 THE CLERK: Is the defendant ready? 5 MR. GARBUS: We are not, we understand we are going 6 ahead. 7 THE COURT: You are going ahead, unless you have some 8 new reason to tell me that I haven't heard before. 9 MR. GARBUS: We have a motion pending and it seems to 10 me that it would be appropriate until such time that the Court 11 renders a decision to not go ahead. 12 THE COURT: You are going ahead. I am not rendering 13 any opinion now, but rather in the course of the morning or 14 perhaps later in the day. 15 MR. GARBUS: May we have an opportunity to go to the 16 Second Circuit to get a stay? 17 THE COURT: You have the opportunity to do whatever 18 you want, but the trial is now and if you wish to make an 19 opening statement, I will hear it now. 20 MR. GARBUS: Would the Court grant a stay? 21 THE COURT: No. 22 MR. GARBUS: Then we will immediately go to the 23 Second Circuit. I will make an opening statement. 24 THE COURT: You are the defendant, Mr. Garbus. The 25 plaintiff goes first. 3 1 MR. GARBUS: Thank you very much. 2 THE COURT: Mr. Gold, you may proceed. 3 MR GOLD: Thank you, your Honor. Good morning. My 4 name is Leon Gold. 5 MR. GARBUS: May I just interrupt one moment? 6 If I understand your ruling, we cannot go to the 7 Second Circuit until such time that we have a decision? 8 THE COURT: You will have it shortly. 9 Mr. Gold? 10 MR GOLD: My name is still Leon Gold. I'm a partner 11 at Proskauer Rose and I represent the motion picture studio 12 plaintiffs. 13 In 1998, Congress recognized the ease with which 14 digital copyrighted works such as movies and records could be 15 copied and distributed worldwide virtually instantaneously via 16 the Internet subjecting copyright owners to losses of material 17 portions of the value of their copyrights virtually overnight. 18 Congress determined that sound copyright economic and 19 Internet policy dictated that this risk of loss had to be 20 addressed. Congress then provided that extra protection over 21 and above existing copyright laws that were needed for the 22 works since disastrous harm could occur well before any Court 23 could act under the copyright laws, well before plaintiffs 24 could get injunctions for infringement or copyright or for 25 contributor infringement. 4 1 The anticircumvention law was passed as a result. 2 Defendants and their supporters disagree with Congress' 3 findings and with the anticircumvention law. They believe the 4 interests of a free Internet, of free access to digital copies 5 of movies, records and books deserve more respect and more 6 attention than protection of copyrighted artistic work. 7 They believe in the right to take this work without 8 any permission, but no one has the right to steal another 9 person's copyright to steal their intellectual property and 10 Congress may provide and has provided additional protection 11 for intellectual property when new technology has 12 substantially increased the risks of infringement. 13 We note this is not the appropriate forum for the 14 expression of defendant's beliefs about effective social, 15 economic and Internet policy. Congress has decided and we 16 respectfully submit the Courts must act promptly to protect 17 these interests in the manner that Congress intended. Not to 18 do so eliminates the purposes, eliminates the existence truly 19 of the act in question. 20 In the anticircumvention law Congress provided that 21 owners of copyright digital materials could protect their work 22 with technological measures which would prevent unauthorized 23 access to their copyrighted works. Congress provided that if 24 copyright owners protected their works with such measures, 25 circumvention devices could not be offered or trafficked to 5 1 the public and trafficking in such a device was forbidden and 2 could be enjoined by a Federal Court. 3 Congress intended that the injury that the Court 4 would protect against would be the loss of the device 5 protecting the copyrighted material. The security afforded by 6 such protective device is the asset protected by the 7 anticircumvention law. 8 Plaintiff's harm is first the loss of that asset 9 which could create irreparable loss and the threat of 10 uncontrollable copying. After all, we will show the studios 11 were not going to go forward into the digital world with this 12 new product, DVD, without such protective technology. 13 Congress did not provide that the Court would not 14 grant injunctions in the anticircumvention law until actual 15 infringement, actual copying or contributory infringement took 16 place. Had Congress imposed that prerequisite, there would 17 have been no need for the anticircumvention law in the first 18 place. 19 We will briefly show that when digital copyrighted 20 material -- and I'm referring now to music on CD's -- were 21 sold without inscription to protect against access to the 22 artistic work, the record -- the record industry found that 23 all of its copyrighted work were infringed and that virtually 24 every copyrighted song in their libraries were all made 25 available on the Internet via Napster at no cost with millions 6 1 and millions of downloads of songs taking place every week. 2 For months, the record companies have been working 3 their way to a preliminary injunction hearing which is, in 4 fact, scheduled for July 26th. Napster, the operation of the 5 a center of this activity, is the most frequently visited web 6 site in the U.S. However, movie companies with respect to 7 DVD's were able to take advantage of inscription and the 8 digital millennium copyright act and are here to protect 9 against such a result, protect against waking up one morning 10 and finding out they've been Napsterized and only then seeking 11 to enjoin the copyright. 12 Once record companies' songs have been copied and 13 widely distributed, something that happens right away, 14 irreparable harm has taken place. Defendants argue that the 15 DeCSS does not quite yet provide a threat of copying because 16 copying is many months to several years away, but even 17 defendants don't deny that at some point, overwhelming -- the 18 overwhelming probability of copying and transmission over the 19 Internet will take place. 20 The movie companies, however, prefer to rely on DMCA 21 rather than the assurances of those who make such assertions. 22 Plaintiffs want to keep their films protected. 23 The Internet now contains offerings of movies with 24 good visual and audio quality, something that did not happen 25 before the advent of DeCSS. Buyer rated movies played from 7 1 decrypted DVD's are also now being sold in hard copies. It 2 doesn't take a rocket scientist to understand how this 3 happened. 4 Defendants are wrong because decryption of DVD's with 5 DeCSS and the offering and transmission of the contents on the 6 Internet has begun, as your Honor will soon see. It's picking 7 up steam and it will become an avalanche unless halted by this 8 Court. 9 Once a film is decrypted and exchangeable on the Net 10 for down loading, that film's protection is lost for good. 11 More powerful transmission lines at increased hard drive 12 storage capacities are the most rapidly developing area of 13 current Internet development. That makes the copy problem a 14 certainty. The danger of immense harm is upon plaintiffs. We 15 will clearly show in this case our right to an injunction. 16 We will establish that CSS is a device meant to be 17 protected under the statute and that trafficking in DeCSS is 18 unlawful. The studios will show that CSS is a technological 19 measure effectively controlling access to copyrighted DVD 20 movies. 21 In the ordinary course of its operations, it requires 22 the application of information or a process or a treatment 23 with the authority of the copyright owner to gain access to 24 the work. The studios will show that DeCSS is a technology, a 25 device, a component designed for the purpose of circumventing 8 1 CSS and placed in a copy -- placing a copy of the DVD movie on 2 the user's hard drive. We will show it has no other purpose. 3 The studios will show that DeCSS has a limited 4 commercially-significant purpose or use other than to 5 circumvent. It has no such commercial purpose other than to 6 circumvent. 7 Defendants admit that they've posted DeCSS on their 8 web site and have linked to other web sites which post DeCSS 9 and, thus, have offered this device to the public and 10 trafficked in DeCSS. 11 As we have set forth in our in limine motions, we 12 submit respectfully that there aren't any material triable 13 issues in this case. The reverse engineering and 14 encryptographic research exceptions don't apply to our 15 trafficking claims as a matter of statutory policy and 16 statutory interpretation and because defendants have admitted 17 their acts had nothing to do with reverse engineering or 18 encryptographic research. 19 Fair use is not a defense to a trafficking claim and, 20 your Honor, that some few people may make some acceptable use 21 of DeCSS does not excuse offering it to the world on the 22 Internet. 23 Finally, plaintiffs have already suffered great 24 damage because their protective device has been taken away by 25 defendant's acts. Their films are on DVD's are no longer 9 1 protected by an anticircumvention device. Plaintiffs would 2 not have issued DVD's without a protective encryption system 3 and the threat of widespread copying is here and the process 4 has begun. 5 Your Honor, this case relates to the protection of 6 artistic works and to the health of the American motion 7 picture industry. While the computer and the Internet are 8 extraordinary developments that have an impact on every person 9 in the world every day, still the computer and the Internet 10 are machines and systems with no moral sense and no ability to 11 choose the ends to which they are put. 12 Like the old machines and the old system and the old 13 systems, these new technologies can be used to promote 14 artistic expression, economic growth and educational 15 opportunities or they can be used to steal and invade the 16 rights guaranteed by our Constitution and our laws. 17 Congress has made some critically important policy 18 decisions with respect to some of these matters. The Digital 19 Millennium Copyright Act is one of those decisions. As we all 20 know, laws passed by legislative bodies, Congress' acts can be 21 rendered meaningless by the absence of prompt enforcement of 22 Congress' will. Then chaos will reign and the most important 23 technological developments of our age will be employed to our 24 detriment. 25 We note that there are a large number of brilliant 10 1 creative productive people who lead the American technological 2 revolution. Their wisdom and counsel are critical to 3 solutions of some of these problems. However, their voices 4 will not be heard in this trial. 5 A good deal of loud noise, much of it irrelevant and 6 much of it untrue, has preceded today's events. Today the 7 rule of law begins to assert itself. It's a welcome day. 8 Your Honor, plaintiffs are ready and anxious to 9 present their case. 10 THE COURT: Thank you, Mr. Gold. 11 Mr. Garbus? 12 MR. GARBUS: Your Honor, it's a great privilege and a 13 pleasure to be here and to argue and to deal with the issues 14 that are raised by this statute. The statute -- this is the 15 first case interpreting that statute. This is a statute that 16 will define the future of American technology in many ways. 17 In many ways, it will define how the technology and the laws 18 will encompass each other. 19 The position that we take, which is very clear is one 20 of protection, is one of protection of copyright interests and 21 one of protection of the First Amendment and one of protection 22 of fair use, a concept that has been with us for a very long 23 period of time. 24 (Continued on next page) 25 11 1 MR. GARBUS: The issue that we are facing I think is 2 a little more complicated than I think Mr. Gold makes it out 3 to be. I think the issue is how do you balance the need for 4 copyright protection. After all, the Constitution talks about 5 the creation of copyright, we recognize that copyright must be 6 protected so that artists and creators can be reimbursed for 7 the work that they do, and we recognize that movie studios and 8 others must also be reimbursed and entitled to make whatever 9 profit that they can make as a result of the work that they 10 do. We also recognize -- and your Honor has seen in this 11 case, many of the other issues that are involved. We 12 recognize that there are certain needs for research, there are 13 certain needs for technology, there are certain needs for 14 librarians. The case is larger than I think Mr. Gold 15 interprets it, and I think that the facts are different than 16 the facts that were given to the Court in the first instance. 17 It turns out that the DeCSS or the cracks of the 18 codes go back to 1997, and the avalanche that the movie 19 studios have been talking about have never occurred. The most 20 recent experiment that we learned about, and we learned about 21 it in this case -- and you will hear it from the first witness 22 that the plaintiff calls, Mr. Michael Shamos -- and what 23 Mr. Shamos tells you is that after trying to download a DVD, 24 and then to do this illegal copying, it took him working in 25 the middle of the night with an assistant some 20 hours to do 12 1 it. And what you will learn is the kind of technology that he 2 had when he did it. You will also hear from our experts what 3 it takes most people in a normal time to do. This is not the 4 Napster case. The fundamental issue here -- and it's a very 5 complicated one, and we have not had a chance to develop it -- 6 is what is the future of the Internet, to what extent do all 7 the horrors that Mr. Gold talks about really ever take place. 8 How fast will things move? How fast will they move within a 9 year? How fast will they move within two years? How long 10 will DVDs be around? How long will there be other encryption 11 systems. 12 You will hear that the motion picture industry said 13 in testimony to Congress back in May out in Stamford that DVD 14 audio for example, and they raised all the horrors, cannot be 15 distributed, cannot be shown, is not available, and they have 16 said that it was withdrawn for a variety of reasons. We will 17 show you in court that you can walk out today to Tower and buy 18 these DVD audios. 19 There was testimony in the case, and you have seen 20 the affidavits, about the DVD audios, that they stopped making 21 the machines. You can go out to Tower and buy the machines. 22 So, what you will find I think with respect to each 23 claim is that it is false, it is easy to say in a case the sky 24 is going to fall tomorrow. 25 What happened in the Napster case, the downloading 13 1 has not happened here. What he is talking about is something 2 that may happen in the future. If that future happens, then 3 you have what happens in the Napster case, you go out to the 4 people who did the file sharing. I told you at the very 5 beginning of the trial, and they told you something opposite 6 than what I said, and you said one of us was speaking baloney. 7 As of yesterday, they did not have the name of one 8 single person who had ever used DeCSS to illegally copy a 9 film. As of yesterday they did not know of one single 10 instance of illegal copying of a film. 11 The MPA has extraordinary resources. What you will 12 learn in this case is that early on they learned exactly about 13 the breaks and they learned exactly about the Linux Group and 14 the attempt to make a Linux. Now what happens to the owner of 15 the DVD, the movie studio that makes the DVD? The Linux 16 player, if you take the DVD, the Linux person buys it, he pays 17 $15, he pays $20, and he puts it in his Linux machine. And 18 the owner of the DVD gets paid for that. The only thing that 19 that Linux operator may not have is a license. You are 20 familiar with the license structure. We have gone through the 21 license structure at great length. 22 You will I think also hear from some of the other 23 plaintiffs' witnesses today, and you will learn from them that 24 up until a little while ago not one of them -- this is the MPA 25 with its vast resources -- had every tried to do this 14 1 allegedly illegal act, even though they came into court and 2 said it was going to happen tomorrow. Not one of them, with 3 the vast resources of the MPA, the vast resources of the 4 motion picture industry, the vast resources of the DVD, can 5 point to one single case of copying, not one person, not one 6 single place. 7 They have chosen as a defendant Mr. Goldstein. The 8 reason they have chosen Mr. Goldstein is obvious. There are 9 university sites that post DeCSS object and source codes. 10 There are newspapers, the San Jose Mercury News, the New York 11 Times, that link the sites. 12 Disney is a plaintiff in this case. If you go to 13 Disney's search engine and you type in DeCSS and make a 14 search, you will find sites all over the place. If you go to 15 Go, which is also Disney's search engine, you will also find 16 sites, forgetting about Mr. Goldstein, all over the place. 17 The statute is very clear with respect to the 18 benefits that a journalist has. I will shortly before I 19 finish just answer the question that you placed last week with 20 respect to where you saw the issues in this case. 21 Before I do that, I note, and you have noted, that 22 the academics from the leading universities have come in on 23 the side of the defendants in this case. You have briefs 24 submitted by Professor Samuelson at the very eminent Berkeley 25 Center, you have affidavits of Professor Nessom at Harvard 15 1 University, from Margaret Smith at Harvard University, 2 Professor Bengler at NYU, and Professor Moglen at Columbia. 3 So that the issues in this case are far more complex I think 4 than my friend Mr. Gold concedes. 5 I recognize that this case is only the very first 6 small step. It's a beginning in deciding these issues. As a 7 trial court judge the inclination to overrule a law of 8 Congress because it's bad would be inappropriate. We are not 9 saying you should overrule a law because it's a bad law. I 10 don't think that's the function of the argument that's being 11 made here today. I think that this case will proceed. It 12 will go to the Second Circuit, it will go to the United States 13 Supreme Court. I think all of us have a very heavy 14 responsibility to make a record in this case that is adequate 15 for the kinds of determinations that are going to be made for 16 a statute of this kind. 17 At the end of the day DVD, there may or may not be 18 DVD movies, but there will be at least for a period of time 19 DVD encryptions on books, DVD encryptions on audio, which is 20 now out, contrary to what the MPA said. 21 So, what you are really talking about is does this 22 new digital technology fundamentally mean the end of fair use. 23 And that is the issue that is faced. And when the MPA went to 24 Congress, they said we have reconciled it. Betamax is still 25 the law, there still is fair use. I won't go through Betamax 16 1 with you. The Court knows it. I won't go through the Sega 2 case with you. The Court knows it. I won't go through the 3 Connectix case again because the Court knows it. I won't go 4 through the monopoly issues again because the Court knows 5 them. 6 Again I think it's a privilege for all of us to be 7 here and to have a chance to establish a record that many 8 courts and judges and the public will be looking at in the 9 years to come. Thank you. 10 THE COURT: Thank you, Mr. Garbus. Mr. Gold, your 11 first witness. 12 MR. GOLD: Mr. Sims will present our first witness. 13 MR. SIMS: Dr. Michael Shamos. 14 THE COURT: I am one of the judges who requires one 15 lawyer for each witness. The first lawyer who objects on 16 direct or questions on cross will be the lawyer for that 17 witness. 18 MICHAEL I. SHAMOS, 19 called as a witness by the Plaintiffs, 20 having been duly sworn, testified as follows: 21 MR. GARBUS: I presume with respect to whether a 22 witness is qualified as an expert or not, given this is a 23 nonjury trial, you may care to hear that at some other time. 24 Or would you care to have that at the very beginning. 25 THE COURT: I don't need to have it at the very 17 1 beginning. I don't follow the practice of having the witness 2 tendered. If there is an objection on the grounds of 3 expertise, you should make the objection, and if I think I 4 need to hear argument, I will hear it. If not, we will 5 reserve it. 6 MR. GARBUS: Mr. Hernstadt was going to make that, 7 but I was going to cross-examine the witness. I don't know if 8 that violates your rule. 9 THE COURT: Technically, but I will allow you to do 10 that. 11 MR. SIMS: I think if you stay about an inch or so 12 further from the microphone, the sounds might be a little 13 better. 14 MR. GARBUS: Does Mr. Hernstadt now make the 15 objection or -- 16 THE COURT: I don't even know what the questions are, 17 so I can't very well rule on the objection. There will come a 18 point I suppose when Mr. Sims is going to ask him do you have 19 an opinion on some subject, and then if one of you, either one 20 of you wants to make that objections, I will hear whichever 21 wants to make it. 22 MR. HERNSTADT: Your Honor, we are objecting to 23 presenting any evidence. If he is being presented as a fact 24 witness, almost all of the evidence he is going to present is 25 hearsay. If he is being presented as an expert, he is 18 1 presenting evidence based on the work of his assistant which 2 in large part he didn't even observe and without a basis for 3 the expert testimony. 4 THE COURT: Let's do this one step at a time, please. 5 MR. SIMS: I really had plans to do this the old 6 school way and present the witness's qualifications. I think 7 it will be clear at the right point. 8 DIRECT EXAMINATION 9 BY MR. SIMS: 10 Q. Dr. Shamos, what is your current occupation? 11 A. I am currently employed on the faculty of Carnegie Mellon 12 University in Pittsburgh, Pennsylvania. I am director of the 13 Universal Library and codirector of the Institute of 14 Electronic Commerce at CMU. I have a senior faculty position 15 in the School of Computer Science and the Graduate School of 16 Industrial Administration, which is CMU's business school. 17 Q. What is the Universal Library? 18 A. The Universal Library is a project in which we are 19 attempting to digitize all public domain works and make them 20 available over the Internet. 21 Q. Do you hold any positions with respect to e-commerce? 22 A. Yes, as I mentioned I'm codirector of the Institute for 23 Electronic Commerce. I'm in charge of the academic program in 24 electronic commerce from the technology side as opposed to the 25 business side. 19 1 Q. Describe briefly your educational and employment 2 backgrounds. 3 A. Yes. I began computer programming while in high school in 4 1962 and have been programming ever since then. I went to 5 Princeton University but was obliged to major in physics 6 because the field of computer science was not offered as a 7 major when I started. 8 I graduated from Princeton in 1968 with a Bachelors 9 degree in physics. I immediately began working for IBM 10 corporation in East Fishkill, New York. I was a programmer 11 programming automated test equipment to test integrated 12 circuits. 13 During the Vietnam era I was obliged to go into the 14 Service. I entered the public health service in 1970, served 15 at the National Institutes of Health, the Cancer Chemotherapy 16 National Service Center in Bethesda, Maryland, where I was a 17 supervisory programmer looking after systems that processed 18 cancer test data. 19 In 1972 I went to Yale University to obtain a Ph.D. 20 in computer science. Yale had just begun its department. I 21 left Yale in 1975 to take a faculty position at Carnegie 22 Mellon. I was hired in the computer science and mathematics 23 departments there from 1975, received my Ph.D. from Yale in 24 1978 and I -- 25 THE COURT: What field? 20 1 THE WITNESS: Ph.D. was in computer science. 2 In 1978 I began to study law. While I was a faculty 3 member at CMU I was a law student at night, I went to Duquesne 4 University in Pittsburgh and obtained a law degree in 1981. 5 1981 I left the university because I had started a 6 computer software company. We were selling the precursor of 7 desk top publishing software based on some technology that had 8 been developed at CMU. 9 From 1981 until 1987 I was the president of two 10 software companies in Pittsburgh which I sold in 1987, took 11 what might be referred as a sabbatical for the next three 12 years, and in 1990 I joined the Webb law firm. That's 13 W-E-B-B, a law firm in Pittsburgh, Pennsylvania, which is the 14 largest intellectual property practice in western PA. I was 15 an attorney there rising to partner. 16 I left the practice of full-time law in 1998 to 17 return to Carnegie Mellon University to direct the Universal 18 Library project. When we began the Institute for Electronic 19 e-commerce the next year, I was named codirector of that and 20 have been teaching in it ever since. 21 Q. Describe your present teaching activities. 22 A. I teach four different courses at Carnegie Mellon. One is 23 on intellectual capital. One is on e-commerce technology, 24 which is a survey of all the technologies that we believe 25 pertain to electronic commerce. I teach a course in 21 1 electronic payment systems which are the technologies 2 surrounding how one pays for things on the Internet, and a 3 course in Internet law and regulation. 4 Q. Do you lecture in these areas as well? 5 A. I have a very extensive lecturing schedule largely 6 organized by Carnegie Mellon University. In addition to the 7 four courses I teach, I give approximately 400 outside 8 lectures per year, mostly to corporations that want to become 9 educated in the Internet. 10 Q. Which major U.S. corporations do you presently lecture for 11 and where do you do that lecturing? 12 A. The major clients for that are Morgan Stanley Dean Witter 13 where I teach in New York and London. I'm scheduled to also 14 teach in Chicago and San Francisco for MacKenzie & Company. I 15 have been asked to give Internet training to all 6,000 of 16 their consultants worldwide, so I have been doing that in a 17 variety of countries, Austria, France, the UK, United States. 18 Q. Are those lectures extended and do they address the issues 19 including bandwidth file transfer, web architecture, 20 compression, networking, Internet technology that are at issue 21 in this case? 22 A. They do, because they are fundamental topics in e-commerce 23 technology. Basically the outside lecturing I do are very 24 short and compressed summaries of the courses that I teach at 25 Carnegie Mellon. 22 1 Q. Can you describe your scholarly output? 2 A. Yes. Of course when I became an assistant professor 3 originally at Carnegie Mellon University there was the 4 obligation of publication, so I have something like 18 5 publications largely in the field of computational geometry 6 which I invented myself while at Yale University. Subsequent 7 to that I was on leave from the university for 17 years during 8 which I had virtually no scholarly output. 9 Upon returning to the university and becoming 10 involved principally in Internet activities, the time lag 11 between when one writes a paper and when it appears in print 12 is so long that the Internet has substantially changed by that 13 time, so the vast bulk of my scholarly output now consists of 14 maintaining the technology portion of the CMU Institute for 15 E-Commerce's website which contains freshly updated 16 information and links to hundreds and hundreds of sites 17 dealing with e-commerce technology. And my scholarly output 18 of course is also the lectures that I give and accompanying 19 slides. 20 Q. Let me show you what has been marked as Plaintiffs' 21 Exhibit 129 -- 22 MR. HERNSTADT: May we have a copy, please? 23 MR. SIMS: Yes. 24 Q. -- and ask you whether this is the declaration you 25 submitted earlier in this case and with particular reference 23 1 now a copy of your CV? 2 A. It is my declaration and it is a copy of my CV. 3 Q. Is the CV complete and up to date? 4 A. The CV is not complete. It's accurate as far as it goes, 5 but it's what I refer to as my short r‚sum‚. It concentrates 6 principally on my major output and major invited talks. I 7 haven't listed everything that I have done. 8 Q. Have you testified in any court cases? 9 A. Yes, I have. 10 Q. Which ones that have any reference to computer matters? 11 A. I testified I believe approximately on six to eight cases 12 involving computer matters, and I testified in one case 13 involving Internet matters. 14 Q. What is that? 15 A. That was the "I Crave TV" case that was decided earlier 16 this year, January, February. 17 Q. Were you qualified as an expert in that case? 18 A. Yes, I was. 19 Q. By what court? 20 A. That was the Western District of Pennsylvania. 21 Q. Do you recall what subject you were qualified as an expert 22 in? 23 A. Yes, it was Internet technology, networking, transmission 24 of video over the Internet. 25 Q. Are you being compensated for your engagement here? 24 1 A. Could you repeat the question? 2 Q. Are you being compensated for your engagement by 3 plaintiffs? 4 A. I certainly hope so. 5 Q. How do the rates you are charging compare to the rates you 6 do charge for consulting work for Morgan Stanley and 7 MacKenzie? 8 A. For expert witnessing I charge approximately one third of 9 what I do for teaching to industrial corporations. 10 MR. SIMS: This is the point at which I would have 11 tendered the witness as an expert. 12 THE COURT: Ask your next question. 13 MR. SIMS: Thank you, your Honor. 14 Q. Are you familiar, Dr. Shamos, with the term CSS? 15 A. Yes. 16 Q. What does CSS stand for? 17 A. It stands for Contents Scrambling System. 18 Q. What is your understanding of what CSS is? 19 A. CSS is an access control and copy protection mechanism 20 that's utilized to control access to and the copying of 21 copyrighted works that appear on DVDs. 22 Q. What is your understanding of what CSS does? 23 A. Well, CSS is a comprehensive scheme that involves 24 contractual relations, hardware and computer software. What 25 CSS on the hardware level does is enables a licensee of the 25 1 system to put copyrighted material on a disk so that it is in 2 scrambled form and cannot be descrambled unless one knows the 3 secret. 4 Q. In what kind of DVD players can authorized disks be 5 played? 6 A. Well, authorized disks are supposed to be able to be 7 played only in what are referred to as compliant players, 8 players manufactured by licensees of CSS. 9 Q. And what kind of disks will authorized players play? 10 A. Well, to my knowledge authorized players play compliant 11 disks. 12 Q. Should they play other disks? 13 A. I believe it's a requirement, a licensing requirement that 14 they be constructed to not play unlicensed disks. 15 Q. Do you know what DeCSS is? 16 A. Yes. 17 Q. What does it do? 18 A. DeCSS is a computer program that circumvents the 19 protections on the CSS DVD. 20 Q. Were you asked by plaintiff's counsel in this case to 21 perform any studies or tests? 22 A. Yes, I was. 23 Q. Would you describe for the Court briefly what you were 24 asked to do. 25 A. Yes. The request was extremely specific. I was asked to 26 1 go out and purchase a brand new computer that had no prior 2 software. We were asked to go out and purchase brand new DVDs 3 from a store in their sealed packages. We were asked to 4 obtain -- 5 MR. HERNSTADT: I might as well make the objection 6 now. Everything that he is telling you as "we" is for the 7 most part at least as set forth in his declaration "he," and 8 he is his assistant Eric Burns. So I would object to any of 9 the testimony that Dr. Shamos is going to present that was not 10 performed by him, and that includes almost all of the 11 experiments, and that also includes things like how long the 12 process took. We could go through it on a piece by piece 13 basis, but I would like to make the initial part of the 14 objection known. 15 I don't think Dr. Shamos should be permitted to 16 testify about any of this stuff until we have had an 17 opportunity to depose Mr. Burns, because Mr. Burns conducted 18 most of the experiment. 19 THE COURT: I take it that the bottom line of all of 20 this, Mr. Sims, is that you are going to ask for some opinion 21 from Dr. Shamos. 22 MR. SIMS: Absolutely. And Dr. Shamos was asked to 23 conduct it, and he did conduct it, and he had the help of his 24 assistant Mr. Burns. And I am quite confident in the courts 25 of this country when experts testify as to studies that they 27 1 have been responsible for, they sometimes have assistants who 2 have performed some of that work under their supervision. 3 THE COURT: Rule 703 I believe of the Federal Rules 4 of Evidence provides that the facts or data in a case upon 5 which an expert bases an opinion or an inference may be those 6 known to him or made known to him. If they are of a type 7 reasonably relied upon by experts in the field in forming 8 opinions or inferences on the subject, the data need not be 9 admissible in evidence. It need not be, in other words, 10 firsthand knowledge, it can be hearsay. 11 With this broad level of generality, Mr. Hernstadt, I 12 can't sustain your objection because I don't yet know what 13 foundation is going to be offered. So your objection is 14 overruled for now and we will see what kind of foundation 15 there is. 16 MR. HERNSTADT: Thank you. 17 Q. Dr. Shamos, I think you were in the course of describing 18 what you were asked to do, and I think it might be helpful 19 just to go through it, because I'm not sure exactly where you 20 left off. 21 A. Right. It was to obtain a brand new computer capable of 22 reading authorized DVDs, obtain a copy of some authorized 23 DVDs, obtain a copy of DeCSS through defendant's website, 24 attempt to use DeCSS to descramble one or more of the DVDs; 25 having done that, attempt to rip the result into DiVX, attempt 28 1 to find other DiVXs on the Internet, trade those with whoever 2 might make them available and then conduct studies to 3 determine how long it would take to transfer DVDs and DiVXs 4 over networks and the Internet. 5 Q. Did you perform all of this work yourself? 6 A. No. 7 MR. HERNSTADT: I'm going to renew the objection. Of 8 that list of things, first of all this was an experiment 9 solicited by the Proskauer firm. They were asked to do those 10 particular things, they did that. Dr. Shamos was not present 11 for the study of how long it took to transfer the DiVX. He 12 was not present for finding other DiVXs. He has never used an 13 IRC channel on his own. He didn't know that that's where you 14 are supposed to go, or at least he testified that his 15 assistant told him that's where you have to trade this stuff. 16 He also was informed by his assistant how to find -- 17 well, I guess he could have found the DiVX anyway, but the 18 assistant performed the entire DiVX rip. He observed, he 19 testified, for some of it. He watched his assistant do this 20 stuff. In terms of the time, his assistant told him how long 21 it took. In very general terms his assistant did not keep any 22 records, and he doesn't even know -- there is an upload and a 23 download at the same time. He doesn't know whether one took 24 longer than the other or how long it actually took. There is 25 no evidence of any of this. 29 1 THE COURT: One thing I know for sure is I don't know 2 any of it because I haven't heard the evidence yet. 3 MR. SIMS: The objection, your Honor, is premature. 4 THE COURT: Yes, it's premature. 5 Q. Dr. Shamos, I think I had asked you whether you performed 6 other work yourself, and you were about to provide an answer. 7 THE COURT: Before he answers, let me just make a 8 request to you both. It's no secret to you I'm getting 9 realtime transcripts, that is, I'm seeing a draft of the words 10 almost as soon as they are spoken. It is perfectly obvious to 11 me that this is going to be essentially useless, and your 12 transcript in this case will be essentially useless, with all 13 due respect to my very able court reporters, if you people 14 don't give them a glossary by tomorrow, not an explanation of 15 what the terms mean but simply a list of the terms. Because I 16 can't imagine that they are doing anything but trying to do 17 things like phonetically render on a stenotype machine DiVX, 18 and you guys know what that is, and I at least know that it is 19 an acronym or an abbreviation, and I know what the letters 20 are, but they don't have a clue. 21 MR. SIMS: I appreciate that. At five of nine we put 22 that on our to-do list this morning, and we will have that 23 later today or no later than first thing in the morning. 24 THE COURT: Now, Dr. Shamos, please answer the 25 question if you remember. 30 1 THE WITNESS: I think the question was did I do 2 everything myself, and the answer is no, and I think of course 3 not. 4 When the CEO of a corporation reports his company's 5 earnings, he doesn't add up the numbers personally himself. 6 So, I engaged an assistant whose name is Eric Burns. Eric 7 Burns has been working with me for two and a half years. He 8 works on the Universal Library project where his principal 9 responsibility is the creation of videos and installing videos 10 in the Universal Library. I have worked with him very 11 extensively, and I have come to rely on both his knowledge and 12 his truthfulness. 13 Furthermore, the materials that he provided to me 14 were not simply his own words but various pieces of physical 15 evidence that I am able to examine in order to determine 16 whether I thought there was anything wrong with what he was 17 saying. Furthermore, all of the actions that were performed 18 here were done under my supervision or direction, with the 19 exception of some activities that took place while I was on 20 vacation for 12 days. 21 Q. Do computer scientists and professors such as yourself 22 customarily rely on intelligent, experienced, brilliant 23 computer students for some of their research and work? 24 A. Yes. 25 Q. What is your opinion of Mr. Burn's intellectual 31 1 qualifications as a computer scientist? 2 A. They were the reason I asked him to assist me in this 3 project. 4 Q. Now, I would like you to take us through the steps from 5 the beginning that you used in your study, and we have some 6 charts here that may be helpful as we work through it. 7 In connection with the first part of your test to see 8 if you could obtain DeCSS. 9 THE COURT: Who is the gentlemen who just came inside 10 the well? 11 MR. SIMS: Mr. Hart, one of my partners. 12 MR. HERNSTADT: Your Honor, we have never seen these 13 charts. 14 MR. SIMS: Yes, you have. They are exhibits and I 15 believe you have them. 16 MR. HERNSTADT: What exhibits are they? 17 MR. HART: Starting with 105. 18 MR. SIMS: Your Honor, may I have Mr. Hart help me 19 with the charts? 20 THE COURT: You may certainly. 21 Q. In connection with the first part of your testimony to see 22 if you could obtain DeCSS from the defendant's site and 23 descramble one of plaintiff's films, did you begin by buying a 24 new computer? 25 A. Yes, we went out to -- both Eric and I went out to Comp 32 1 USA in Parkway Center Mall in Pittsburgh, and we needed to 2 find a machine that day that would be capable of playing DVDs, 3 so we bought a high-end Sony laptop. 4 Q. For the purposes of your research and experiment here, 5 what was the purpose of buying a new laptop? 6 A. We wanted to avoid any suggestion that there were rogue 7 pieces of software or things that we had created that had been 8 lingering on the disk. We wanted to make sure there was 9 absolutely nothing on this machine except the operating system 10 and software that we specifically downloaded to the machine as 11 noted in my declaration. 12 Q. Is it a typical consumer computer? 13 A. I'm not sure I would refer to it as a typical consumer 14 computer. It's a laptop for one thing, and typically 15 consumers have home PCs. And at the laptop end, it's fairly 16 at the high end, although it costs significantly less these 17 days than a home desktop used to cost. 18 Q. How does its functionality compare to those that many 19 Americans would have either at the university or if they were 20 in high school and in an upper middle class community? 21 A. In terms of its processor capability, it's about at the 22 middle range of what one gets in desktops now, but it is at 23 the high end of what one gets in laptops. It was a 650 24 megahertz machine. In terms of its disk storage it had 18 25 gigabytes of disk, which is large for a laptop but not large 33 1 for a desktop as currently sold now. 2 Q. Did you proceed to try to decrypt the CSS-scrambled movie 3 using DeCSS? 4 A. We did. 5 Q. Where did you get DeCSS? 6 A. Okay. First, we purchased a copy of Sleepless in Seattle 7 from the same store that we purchased the laptop from. We 8 then came back, and I think if we look at Exhibit 105 -- 9 THE COURT: Are you sure it wasn't Sleepless in 10 Hollywood? 11 THE WITNESS: We were sleepless actually during a lot 12 of this experiment. 13 A. So, we went to defendant's website, 2600.com. 14 Q. Is Exhibit 105 connected somehow to defendant's website? 15 A. Yes, I should explain that most of these exhibits on these 16 charts are going to be what are referred to as screen shots. 17 Screen shots are basically capturing in static form exactly 18 what was being displayed on the screen of the laptop at the 19 time that these actions were taken. So, they are the 20 equivalent of having stood there and photographed the screen. 21 So, one can see from a line -- and I am pointing with 22 this laser pointer to some of that. I will try to keep it out 23 of your eyes -- up here is a line that says address. 24 An address indicates the domain name of the website 25 that we are visiting, in general the URL, the specific 34 1 resource that we were asking to be downloaded to the screen. 2 And this is the home page of defendant's website. 3 MR. SIMS: Your Honor, are the books sufficient for 4 your use, or would you like to be handed a loose copy of the 5 exhibit? 6 THE COURT: No, I don't need a loose copy if they are 7 in the books. 8 MR. SIMS: We will move in, needless to say, the 9 paper ones. 10 THE COURT: I'm sorry? 11 MR. SIMS: You already have those. I don't need to 12 give the witness the paper one because he has the chart. 13 THE COURT: If he can see it. 14 THE WITNESS: Yes, I can. 15 Then I think in the next exhibit, one has to scroll 16 down a little bit from the top of the home page. 17 THE COURT: Mr. Sims, are you offering 105? 18 MR. SIMS: I was going to offer them in a group. 19 THE COURT: That's fine. What is the next one? 106? 20 MR. SIMS: 106. 21 Q. What does 106 show? 22 MR. HART: I have 107. 23 THE COURT: Let's do 106. 24 Q. What does Exhibit 106 show? 25 A. This one, because of the small size of the text, I would 35 1 appreciate having a paper copy. 2 THE COURT: Let's make this a little easier. I have 3 been provided with an extra copy of these exhibits. Why don't 4 you take them down there, Dr. Shamos, and they are all tabbed 5 and can you use them. I take it that's the same as the other 6 set? 7 MR. SIMS: It is, absolutely. For awhile anyway. 8 Q. What is Exhibit 106? 9 A. Exhibit 106 shows more of the home page of defendant's 10 website, what happens when one scrolls down further in the 11 site. 12 In this section "how you can help: While we have 13 every intention of sticking this out to the end" -- I believe 14 "this" refers to this litigation -- "we have to face the 15 possibility that we could be forced into submission. For that 16 reason it's especially important that as many of you as 17 possible, all throughout the world, take a stand and mirror 18 these files." Where "these files" are shown in red and 19 underlined on the page, that indicates a hyperlink, which if 20 one clicks with a mouse one will get to these files. These 21 files are indicated I think in the next exhibit. 22 Q. And did you click on the hyperlink to these files? 23 A. We did. 24 Q. Turn to Exhibit 107, if you would. 25 What is the list of things here, and what is 36 1 represented by the purple color in the middle? 2 A. Yes, Exhibit 107 shows the result of clicking on "these 3 files" on Exhibit 106, and one is presented with a long list 4 of places. We didn't visit every one of them but presumably 5 because of what is stated in the web page each of these is 6 some place where one can obtain DeCSS from. 7 We clicked on an 8 "HTPP://home.rmci.net/bert-fuckthelawyers" 9 If your Honor would excuse me for the necessity to 10 use such terminology in the courtroom, but it is evidence. 11 So we clicked on that link and we are taken to a site 12 which I think is shown in Exhibit 108. 13 Q. And is this the page you obtained by clicking on the 14 purple line in Exhibit 107? 15 A. Yes, it is. In fact if one looks up at the address line, 16 again at the top of the browser it shows that the page being 17 viewed is precisely the page that was referred to on the 18 previous exhibit. 19 Q. So, that if we look at the browser line on Exhibit 107, 20 the address is still at the defendant's website, 2600.com? 21 A. Yes, it shows that and it shows the specific file that was 22 being displayed on the browser at that moment. 23 Q. And then the very next screen you obtained has transferred 24 you to another website obtainable through the defendant. 25 A. That's correct. 37 1 Q. What does Exhibit 108 show? 2 THE COURT: You say "obtainable through the 3 defendant." I take it you are not meaning to suggest by that 4 that Exhibit 108 is on the defendant's site. Rather, it's a 5 site that you get through clicking, is that right? 6 THE WITNESS: Precisely. The page shown on Exhibit 7 108 is not at the defendant's website. It's at bert's 8 website. 9 Q. And what else does Exhibit 108 show of relevance to your 10 experiment? 11 A. Well, this is a way to obtain DeCSS, because it says this 12 is simply a mirror of the files necessary to decrypt the copy 13 protection built into DVD players. Mirror refers to a site 14 that essentially contains an identical copy of material found 15 on another website. It's common to mirror materials, either 16 whole web sites or portions of websites. 17 The first entry where it says DeCSS.zip says this is 18 the utility used to rip the .VOB files off DVDs to be copied 19 to your hard drive. 20 Now, copying to a hard drive is something that 21 compliant DVD players are not allowed to do, because once the 22 materials are copied to the hard drive they can be freely 23 played, freely edited, freely distributed. So, DeCSS.zip 24 refers to a program or refers to data that has been compressed 25 with a program called Zip, which is commonly used on the 38 1 Internet to reduce the size of files to speed up their 2 transfer. 3 And it's all arranged so that when you click on this 4 link, this DeCSS.zip link, that an automatic procedure is 5 invoked that causes the file to be downloaded to your own 6 computer. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 1 Q. And was that done? 2 A. That's what we did; yes. We clicked on that link. That's 3 why it shows up in purple, as opposed to being in blue. 4 Q. Let me show you Exhibit 109 and ask whether that is what 5 you obtained after clicking on DeCSS.zip? 6 A. Yes. This is a -- what's shown here I think is probably 7 not the entire screen at the time. This is a blowup of just 8 the file download window that got opened automatically when 9 the DeCSS.zip link was clicked that invokes a utility under 10 Windows that informs the user he has asked to have a file. 11 Downloaded and the system wants to know whether the file 12 should just be opened directly from the web site or saved to 13 the user's own hard disk. 14 We clicked that to save this file to disk. As you 15 can see from the dot inside the radio button where it says 16 "save this file to disk" and then we clicked "O.K." 17 Q. What came on the screen next? 18 A. I think it's Exhibit 110. 19 Actually, it's likely that we were asked to give a 20 file name for the file that we were going to save and I think 21 that's not shown in the screen shot here. 22 Q. What does Exhibit 110 show? 23 A. Exhibit 110 is a screen shot that was captured during the 24 actual download of DeCSS.zip from the lawyer's web site and 25 what it shows is that after we had transferred 38.3 kilobytes, 40 1 only one second estimated remained, and that we had copied 2 already more than half of the file. So, it took about two 3 seconds to do that download. 4 Q. To download DeCSS altogether? 5 A. Yes. Once having selected, we wanted to start the 6 download, the actual download took about two seconds. 7 MR. SIMS: Your Honor, I would offer Exhibit 129, 8 which is Dr. Shamos' CV together with Exhibits 105 to 110. 9 MR. GARBUS: No objection. 10 THE COURT: Received. 11 (Defendant's Exhibits 105 through 110 received in 12 evidence) 13 Q. Did you and your assistant then proceed to use the DeCSS 14 that you had obtained by a link through defendant's web site? 15 A. Yes, we did. The first thing, of course, we had to do was 16 unzip it, so we had to run winzip in order to expand the 17 DeCSS.zip file to something called DeCSS.exe -- DeCSS. 18 When I say "dot," I mean the "period" character. 19 Q. And do you know how long that took? 20 A. The unzipping? 21 Q. And to find the utility? 22 A. Well, yes. We had now advanced from a web site called 23 FM4, what utilities we were going to need to do all of the 24 things we were going to do. So, I stated in my declaration, 25 we obtained off the Internet three pieces of required software 41 1 to do. 2 Q. And what were those pieces of software? 3 A. One of them was winzip, which we knew what was going to be 4 required to decompress files. Another was called FTP207. FTP 5 stands for "file transfer protocol." That software that's 6 used for transfer filings over the Internet. 7 Then mIRC 3.71 is a piece of software for engaging in 8 Internet relay chat. That's a procedure whereby multiple 9 people and also two people on the Internet can basically talk 10 to one another, not through voice, but by typing at their 11 terminals. When one person types, the other person sees what 12 that person is typing. 13 Q. Are these pieces of software which many computer users 14 would already have on their computer? 15 MR. GARBUS: Pardon me. I object to the question. 16 THE COURT: Overruled. 17 A. Not only would many users already have them, but they are 18 freely available over the Internet. 19 Q. How did you use DeCSS with Sleepless in Seattle? 20 A. Well, we inserted it into the DVD drive -- 21 Q. I'm sorry? 22 A. We inserted the Sleepless in Seattle DVD into the DVD 23 drive of the laptop and we invoked DeCSS.exe. 24 Q. How long did that process take? 25 A. Well, the invocation was very fast, but we have to go 42 1 through the actual process of descrambling the DVD and the 2 entire process for doing all of this from start to when we 3 finished took about 45 minutes, but the actual processing time 4 to do the descrambling is in the range of 20 to 30 minutes. 5 Q. That is from the moment you applied the DeCSS to Sleepless 6 in Seattle, the descrambling time was? 7 A. That was in the range of 20 to 30 minutes. It was a 8 computationally-intensive process. 9 Q. And what was the result that you obtained from applying 10 DeCSS to a store-bought copy of Sleepless in Seattle? 11 A. Yes, I think we have -- I guess we don't have exhibits 12 here. Well, the result of DeCSS'ing is what are called VOB 13 files, video object files, that are playable through the 14 laptop. And so, we obtained a file of Sleepless in Seattle. 15 The first time we did it, it wasn't complete because 16 the complete VOB file, I believe, is 4.3 gigabytes and we 17 couldn't get the system to create a file larger than four 18 gigabits. But we had a perfectly playable file and we played 19 it and it was the equivalent to the DVD of the movie Sleepless 20 in Seattle. 21 Q. And how did you know that the computer was at that point 22 playing the DeCSS'd version of the store-bought copy rather 23 than the DVD that you had put into the hard drive? 24 A. Oh, because to demonstrate that we specifically removed 25 the DVD from the DVD disk itself of Sleepless in Seattle from 43 1 the DVD drive so the thing could only have been playing from a 2 file that was on the hard disk. 3 Q. Now, are there ways to make the file you obtained, that 4 is, the file of Sleepless in Seattle resulting from the 5 application of DeCSS, are there ways to make that file small? 6 A. Well, not directly by itself, O.K. There are two kinds of 7 ways of making a file smaller. One is referred to as loss 8 less compression. The other is referred to lossy L-O-S-S-Y 9 compression. 10 In loss less compression, enough information is 11 stored about the data so that it can be reconstructed exactly 12 bit for bit. It is not a failing to attempt to do loss less 13 compression on a VOB file, essentially one can't compress it 14 any further. 15 There are, however, ways of compressing the file in 16 the lossy manner so that it can become much smaller. And 17 smaller files are better as long as the visual acuity doesn't 18 suffer because they can be transferred to people faster and 19 more of them can be put on the same media or like DVD's or 20 CD-Roms. 21 Q. In your experience, does doing so require a high degree of 22 expertise? 23 A. When you say "doing so," you mean the process of going -- 24 of performing a lossy compression on a VOB file? 25 Q. That's correct. 44 1 A. It requires some degree of expertise. Fortunately, all of 2 that expertise can be acquired through instructional tutorials 3 on the Internet, which is how we did it. 4 Q. And from where did you get the information that told you 5 how to proceed to compress the DeCSS file you had obtained? 6 A. There's a web site called FM4.org that provides that 7 information. 8 Q. Let me put on the chart stand Exhibit 112 and ask you to 9 explain what that is. 10 A. Well, 112 is the home page of FM4.org, as one can 11 determine by again looking at the address line shown in the 12 browser and it says, welcome to FM4.org, free MPEG4. That's 13 F-R-E-E-M-P-E-G-4 as one word -- is a group created to provide 14 you with the best quality new and classic movies encoded with 15 MPEG4 technology. 16 You can join the channels #DiVX point is the number 17 sign character like a music sharp sign -- you can join the 18 channels #DiVX and point free MPEG4 on the EFNET, IRC network 19 to visit us. 20 And then down further at the bottom of the page under 21 the news entry, May 1, 2000, it says, "Big thanks to BCKSPACE 22 for letting me rape his DiVX tutorial." 23 And that DiVX tutorial is a something like that link 24 where one can find out about how to make DiVX's, but because 25 FM4 was able to raise it, it was necessary to go to back 45 1 spaces web site. It could be obtained directly from FM4.org. 2 Q. Did you and your assistant click on the FM4 tutorial? 3 A. Yes. 4 Q. And let me show you Exhibit 113 and ask what that -- 5 A. Yes, 113 is the page on the FM4.org web site that contains 6 the tutorial as is fairly clear from again looking at the 7 address line on the browser which shows that it's the FM4.org 8 page named tutorial or it's in the directory tutorial. It's 9 probably default at html or something in, but it's in the 10 tutorial directory. 11 And what this explains is this tutorial will take you 12 through the process of creating your own DiVX movies step by 13 step, credit for the content of this tutorial should go to 14 backspace E for creating the original and allowing me unFKN 15 real -- I don't want to pronounce that as it's intended to be 16 pronounced to modify for FM4. And there are -- then there are 17 five steps listed that one must go through in order to produce 18 a DiVX from a decrypted DVD. 19 Q. And will you read what it says in step 1? 20 A. Step 1: DVD-extraction/decryption: There's a hyperlink 21 DeCSS. It says, to decrypt the *.VOB files on the DVD and 22 copy them to hard disk. 23 Q. And you had already done that? 24 A. We had already obtained DeCSS and done that. 25 MR. GARBUS: I object. 46 1 It seems to me at some point we get into questions of 2 material off the Internet and whether or not that material is 3 or is not hearsay and it seems to me that's a start that we 4 will start to get into and this information is getting from 5 some outside source. And he's presenting it, I presume, for 6 the truth of it. 7 THE COURT: As I understand it, he is presenting it 8 to explain what he did. 9 MR. GARBUS: I presume -- I understand he's doing it 10 for the purpose of the truth of it. 11 MR. SIMS: Only for the truth of what he did. 12 THE COURT: The bottom line is that he is saying that 13 he followed these steps and the result was that he, I assume, 14 had himself a decrypted DiVX movie so he -- it's sort of like 15 a policeman testifying that there was a call over the radio 16 that says there was a holdup at Broadway and 118th Street and 17 he ran as far up Broadway and 118th Street, and lo and behold, 18 there was somebody holding a gun on somebody. 19 And certainly the radio call is not admitted for the 20 truth of the purpose. It's offered to explain why the 21 policeman went to 118th and Broadway and happened to find the 22 robbery. I think this is the same thing; is it not? 23 MR. GARBUS: I don't think, and I can barely read 24 these exhibits with the copies that I have. I think it talks 25 about other people having done other things and other people 47 1 having downloaded films. 2 THE COURT: Yes, look I take it Mr. Himself you're 3 not offering any of that for the truth. 4 MR. SIMS: Absolutely not. 5 MR. GARBUS: Thank you. 6 THE COURT: To that extent, sustained. 7 MR. GARBUS: Thank you. 8 Q. Dr. Shamos, what did you do since you had already 9 performed, you and your assistant, the part of this of getting 10 DeCSS, what did you do next? 11 A. We performed all the remaining steps 2 through 5 on 12 Sleepless in Seattle. 13 Q. And are those reflected in the next series of exhibits 14 that you provided? 15 A. They are. 16 Q. Turn then if you would to Exhibit 114B. 17 THE COURT: Is this B or D? 18 MR. SIMS: 114B. 19 THE COURT: "B" as in boy? 20 MR. SIMS: We skipped over "A" for a moment. 21 A. Well, step 1 is DVD ripping the right way and the advice 22 given on FM4 down in the second paragraph. It says, to start, 23 run DeCSS and starting with the first one going file select, 24 the files to decode from the first to the last file in the 25 series. 48 1 So, the result of running DeCSS is it produces a 2 bunch of files that one can select from those that one wants 3 to make a DiVX of. And we chose the as shown by the screen 4 down there, it tells you how to make that selection. 5 Q. And the ones that are purple on the bottom right, are 6 those the files that you chose -- selected? 7 A. Yes. 8 Q. What did you do next? 9 A. Well, we followed step 2. 10 Q. 114, please. 11 What does Exhibit 114C show? 12 A. 114 is an example that shows how to extract the video 13 portion of the DeCSS to DVD. Of course a video has both video 14 information and audio information and it's necessary in this 15 procedure to extract the video information separately, the 16 audio information separately, and then merge them together and 17 attempt to synchronize them to result in a DiVX that will 18 actually make sense when it's played so that the speech of the 19 actors is properly synchronized with their emotion. 20 Q. And to what extent does the FM4 tutorial lead you through 21 that process? 22 A. Well, completely. I mean, we followed every step in here 23 to the letter. 24 Q. So, you undertook the video extraction as shown on 114C? 25 A. Yes. 49 1 Q. And then, what did you do? 2 A. We went to step 3. 3 Q. Will you put up 114D. 4 What does Exhibit 114D show? 5 A. O.K., Exhibit 114D is step 3 in which one having already 6 extracted the video now must go and extract the audio from the 7 DeCSS DVD and this explains how to do that. 8 Q. What was the next step? 9 A. The next step was step 4. 10 MR. SIMS: 114E, please. 11 A. That's correct. And they refer to this as multiplexing 12 which is basically the process of merging the audio and video 13 together, it says, so now you have an AVI file that has only 14 video and an enormous WAV file. What do you do? And then 15 this shows you what to do in order to merge the two to create 16 a result that's supposed to have some semblance of 17 synchronization. 18 Q. Was there any further step you needed to undertake? 19 A. Yes, the result of this produced what I would -- what I 20 believe are referred to in the declaration as a horribly 21 desynchronized DiVX in which the sound was not occurring at 22 the same time as the action in the movie. 23 Q. And did FM4 explain how to solve that problem? 24 A. Yes, to some extent. There is another -- 25 Q. Will you put up 114A. 50 1 Is there an explanation of how to address the 2 desynching problem on 114A? 3 A. Yes, a little bit more than halfway down the page, it 4 says, fixing the desynch. If your video audio does start out 5 synced, but gradually becomes desynched, you can skip this 6 step, etc. 7 What was necessary to do in our case at that time was 8 do a lot of fiddling around with the -- with the audio and 9 video portions in order to get them synchronized properly. 10 This required eliminating the opening trailer of the 11 movie because the opening trailer is recorded at a different 12 frame rate than the movie itself and the process assumes that 13 either one or the other of those speeds is going to be used 14 all the way through. And so by eliminating the opening 15 trailer, we were eventually able to get the DiVX properly 16 synchronized. 17 Q. By "opening trailer," do you mean an advertising for the 18 film? 19 A. The opening trailer typically contains previews of other 20 films and anything that the video company wants you to see 21 before you see the movie. 22 Q. So that the first time that you and your assistant went 23 through this process, how long did it take you altogether to 24 end up with a DiVX'd -- that's DiVX'd? 25 MR. GARBUS: Are you through? 51 1 MR. SIMS: No. 2 Q. -- with a DiVX'd copy of Sleepless in Seattle on the hard 3 drive obtained through DeCSS? 4 MR. GARBUS: Your Honor, I understand when this was 5 done, Mr. Shamos was not there. 6 THE WITNESS: The understanding is not quite correct. 7 I was not there at the moment of completion of the process. 8 Q. Were you there? 9 A. I was present at various times during the process. 10 Q. And where is your office in relationship to your 11 assistant's office? 12 A. It's two offices away, approximately 20 feet. 13 Q. What was -- so, the first time you went through it, you 14 and your assistant weren't through it, how long did the 15 process take? 16 A. The first time we were complete novices and the whole 17 thing took about 20 hours. 18 Q. And much of that was related to the desynching issue that 19 came up? 20 A. Yes. 21 Q. And have you undertaken with Mr. Burns to do it 22 subsequently? 23 A. We have done various experiments. We believe that we can 24 now do it in about 10 hours. 25 Q. What was the end result of the DiVX process? 52 1 A. The end result was a DiVX'd version of Sleepless in 2 Seattle that was substantially smaller than the original by a 3 factor of I recall something like 5.6. 4 THE COURT: 5.6, what, gigabytes? 5 THE WITNESS: No, it was smaller than 20 percent of 6 the size of the original file. It -- the size had been 7 reduced by a factor of 5.6, so it came down to something over 8 700 megabytes. 9 THE COURT: So, what I want to be clear on is what 10 the two comparisons are. Is the starting comparison, that is, 11 the precompression file the file that you had after you ran 12 DeCSS on the DVD? 13 THE WITNESS: Yes, I'll make it -- I will be very 14 specific with the numbers. The video object file, the .VOB 15 file that we obtained by DeCSS Sleepless in Seattle was 4.3 16 gigabytes. After we completed the DiVX process, it was down 17 to 750 megabytes. 18 Q. That's a ratio of about 5.67? 19 A. Yes. 20 Q. Now, have you -- 21 THE COURT: How much of that compression was 22 attributable to the elimination of the trailer? 23 THE WITNESS: I think the trailer lasts something 24 like three minutes and the movie lasts close to two hours. 25 It's just a tiny -- tiny percentage. 53 1 Q. And have you and your assistant been able to obtain DiVX 2 copies of DeCSS films in the size of around 650 megabytes? 3 A. Yes, we have by playing with the compression ratio, if you 4 increase the compression ratio higher than 5.67, then you can 5 get it down to and the objective of all of this is to get it 6 down so that it fit on one CD-ROM and CD players and CD-ROM 7 recorders are readily available through computer stores, so we 8 fiddled through it to get it down. 9 MR. GARBUS: My understanding is this was done 10 without this witness' knowledge and while he was in Hawaii. 11 It was not done at his direction. It was not part of this 12 experiment. It was not part of the -- done under his 13 supervision. 14 THE WITNESS: Nevertheless, I did see the result and 15 I have no reason to disbelieve my assistant of two and a half 16 years. 17 THE COURT: Go ahead, Mr. Sims. This is a matter of 18 cross-examination, Counsel. 19 Q. Does DiVX work directly on CSS encrypted DVD movies? 20 A. I'm sorry. Could you repeat -- 21 Q. Can you obtain an intelligible perceptually useful version 22 of a film if you apply DiVX to a store-bought DVD? 23 MR. GARBUS: I object to the form of the question. 24 THE COURT: I don't understand the question. 25 Sustained. 54 1 Q. Dr. Shamos, if you attempted to attempt to compress 2 Sleepless in Seattle as you bought it directly from the store 3 having -- would it be possible to compress the store-bought 4 version encrypted of Sleepless in Seattle? 5 A. If we did not attempt to do so. 6 Q. Would it be possible? 7 A. If we tried to do so, I don't know if the tools available 8 to us would even do the processing, but if it did the 9 processing, garbage would result because there would be no way 10 to decrypt or descramble the material on the DVD. 11 THE COURT: It would be useful at this point, Dr. 12 Shamos, for you to place what the DiVX acronym or whatever it 13 is means and what precisely it is. 14 THE WITNESS: Certainly. There are a number of 15 compression technologies that are used on video. The whole 16 idea is that visual information on a computer requires a huge 17 amount of storage space because each individual little square 18 on the screen. What we refer as pixels, information must be 19 stored about the brightness of the pixel and exactly what the 20 color composition of the pixel is. 21 And in order to achieve high resolution images, a 22 tremendous number of pixels are required, therefore, the size 23 of the single frame in the video is large. What this results 24 in is unless compression is performed, an entire video takes 25 up so much digital storage space that there is no medium on 55 1 which it can be delivered. 2 We don't have that technology right now at any 3 affordable price, so it's always necessary to compress the 4 videos. And there is an organization called the Motion 5 Picture Experts Group, MPEG, which has been doing studies for 6 a long time on how one can compress video in such a way that 7 even though it is lossy, none of the -- or very little of the 8 visual quality is lost to the human being. 9 And this is done by a process called perceptal 10 encoding. Cognitive psychologists have studied the human 11 visual system and they know the ways in which the human eye is 12 sensitive to certain things. 13 For example, the human eye is insensitive to small, 14 slow changes in color, but it is extremely sensitive to 15 changes in contrast. That's what enables us to pick out edges 16 of objects. 17 So, in perceptual encoding, which is used in MPEG, 18 that information from the video stream is eliminated that a 19 human being cannot see. Therefore, if you can't see it, even 20 though there's less information there, it still looks as good. 21 MR. GARBUS: Your Honor, so far as I know, this 22 witness has never written on MPEG, has never testified with 23 respect to MPEG and is not an expert on MPEG, which is a very 24 different area than the other areas we've been going through. 25 THE WITNESS: I lecture 50 times a year on 56 1 compression technologies. 2 THE COURT: I'm going to hear the attorney. If you 3 have other testimony on this subject, I will hear yours as 4 well. 5 And, Dr. Shamos, we will do better here if you don't 6 argue with Mr. Garbus. 7 THE WITNESS: I'm sorry, your Honor. 8 Q. Dr. Shamos, once the movie has been subject to DeCSS -- 9 A. I hadn't completed the answer. 10 Q. I'm sorry. Excuse me. 11 A. And so, DVDs are compressed -- the video stream from the 12 original Hollywood movie, in order to create a DVD of it is 13 compressed using a format called MPEG2 which came from the 14 Motion Picture Experts Group. 15 There are subsequent compression technologies which 16 achieve a higher degree of compression, in particular MPEG4, 17 which is an encoding that has the encoder for which has 18 apparently been stolen and is not referred to as DiVX in the 19 underground world. 20 Q. Once a movie on a DVD has been subjected to DeCSS and then 21 compressed through the use of DiVX'd, does it take the 20 22 hours or the 10 hours that your assistant eventually got it 23 down to to be able to -- does the process that took either 20 24 hours or 10 hours have to be gone through again? 25 A. No. That one could think of that as sunken costs, sort of 57 1 like the cost of actually producing the movie in Hollywood in 2 the first place. Once that's done and copies of it exists, 3 copies could be readily distributed around. 4 Q. Is it possible for you to demonstrate here today the 5 respective perceptual quality of the store-bought DVD as 6 compared with the version that you obtained through the 7 experiment you just have been testifying about? 8 A. Yes, it is. My assistant, Eric Burns, is here and he's 9 prepared to operate the very laptop that we used to do all of 10 this and show it on the screen in the courtroom. 11 THE COURT: Before we do that, we are going to take a 12 recess for about 15 minutes. 13 (Recess) 14 THE COURT: Just to be clear, folks, we are going to 15 continue to use the jury box for you, only so long as there 16 are too many people to fit if the back. You will have to move 17 if space opens up. 18 But let's go ahead. 19 MR. SIMS: Thank you, your Honor. 20 DIRECT EXAMINATION Continued 21 BY MR. SIMS: 22 Q. I think, Dr. Shamos, I was about to ask or I did ask, 23 where you could demonstrate the prospective perceptual quality 24 of the store-bought Sleepless in Seattle to use a different 25 example and the DiVX'd DeCSS version that you obtained through 58 1 your experiment. This is Eric Burns, your assistant? 2 A. That's correct. 3 MR. SIMS: And, your Honor, if we might -- if we 4 might, we would like to show first the -- a minute or so of 5 the authorized DVD and then the DiVX'd DeCSS version. Mr. 6 Burns has been handed a store-bought copy. I showed 7 it to Mr. Hernstadt and asked if I had his permission, which 8 he graciously gave for us to break the seal while the break 9 was taking place so we could move things along. 10 THE COURT: Mr. Garbus? 11 MR. GARBUS: I would object. What they're doing is 12 they are showing it on a particular instrument that is not the 13 kind of computer screen that people allegedly look at these 14 when they are downloaded. So, the relationship of how you see 15 it here has nothing, nothing, to do with how it would look on 16 a computer screen. 17 They can, if they want to make this demonstration, 18 bring in a large computer screen, but this is not that. You 19 will not see what a person will see on a computer and there's 20 absolutely no reason why they haven't brought in a large 21 computer other than to mislead the Court as to what you see 22 when you see a downloaded film. 23 THE COURT: Well, I assume that you will address 24 those questions to the witness on cross and you will hear the 25 witness' testimony about what, if any, difference there is 59 1 between this screen and any other screen, and if you then want 2 to produce a witness to testify that a different screen would 3 produce a different result, you can do that. And if you want 4 to bring in a different screen and have the thing played for 5 me, you can do that as well. 6 MR. GARBUS: As you know, just to keep clear the 7 issues between us, we had no foreknowledge of this. This was 8 never discussed at his testimony that such an exhibit was 9 going to -- such a demonstration was going to be made, that we 10 met Mr. Shamos the first time on Saturday. 11 As of now, I don't even have, I don't think, though 12 some people in my office may have his full deposition 13 transcript, if we are to make arrangements either to get to 14 cross-examination concerning this exhibit or the chance to 15 show what a viewer of a personal computer would see. 16 At an appropriate time, I would request a continuance 17 so that we could do that. 18 THE COURT: Go ahead, Mr. Sims. 19 MR. SIMS: Thank you, your Honor. 20 And by the way, Mr. Burns has in front of him the 21 Sony computer that the experiment was performed on. 22 THE COURT: I really would prefer to hear the 23 evidence from the witnesses on the stand, not from the 24 lawyers, either you or Mr. Garbus. 25 MR. SIMS: I would just invite your Honor to look at 60 1 that screen during the demonstration, if you would like to. 2 Q. Dr. Shamos, can you with your assistant show us first what 3 a minute or so of the store-bought version looks like. 4 THE COURT: Well, just a minute. Would that obviate 5 your problem, Mr. Garbus, if I looked at the laptop here 6 rather than that screen? 7 THE WITNESS: If it may assist the Court. 8 THE COURT: No, please just a minute. 9 MR. GARBUS: I think it would help. 10 THE COURT: All right. I will do that. 11 THE WITNESS: The only issue, your Honor, is we can't 12 show it on both screens at the same time. 13 THE COURT: We will show it here. 14 THE WITNESS: It's one or the other. In order to do 15 that, it is simply necessary to insert the authorized 16 Sleepless in Seattle DVD into the DVD drive and it will 17 automatically begin playing. Then in order to do the 18 comparison with the DiVX'd that we made, it would be necessary 19 to skip directly to the film itself, as opposed to watching 20 the whole opening trailer. 21 (Video played) 22 MR. SIMS: There's the opening trailer. And Eric 23 will stop the video and then skip directly to the movie. And 24 full screen it. 25 Q. Dr. Shamos, is there a difference in perceptual quality 61 1 depending on who is doing the laptop screening? 2 A. It's very popular with a laptop to be directly on axis, to 3 be perpendicular to the screen and hopefully in the center of 4 the screen, which would not be necessary with a TV set. 5 Q. Dr. Shamos, can you see the screen and narrate what it is? 6 A. I could do it if I came down there, but. 7 THE COURT: Come on down. 8 A. Well, this is the opening scene of Sleepless in Seattle 9 and I think we are going to look at this until just about the 10 opening credits begin to see a variety of different kinds of 11 scenes. 12 This is a long shot. Then we are going to take a 13 closeup of human faces and some exceptional detailing in the 14 movie, which is achievable with DVD. 15 Q. If you would, as we go along just point out the qualities 16 of the picture that you think are worth pointing out. 17 THE COURT: Let's not turn up the sound. 18 A. Later on, we can see the shrubbery in the background is 19 shown. There's a high degree of details with the flowers back 20 here and for, if it's in focus, which that is, this is not the 21 highly detailed also with the shrubbery. 22 Then there's a point in this scene where a reflection 23 appears in the glass over there of exceptionally high detail. 24 In general, because of the DVD quality, everything is of a 25 high degree of sharpness. 62 1 THE COURT: Have we seen enough of this one? 2 THE WITNESS: I think that's sufficient. 3 Q. Now, Dr. Shamos, can you have Eric copy by the way of 4 Sleepless of Seattle is Exhibit 2? Can you have him play the 5 version of Sleepless in Seattle that came through the DeCSS? 6 A. Wait. Please remove the authorized DVD from the drive. 7 Take it out, and put it off to the side. 8 THE COURT: The record will reflect that it has been 9 removed. 10 A. And leave the DVD open and please place the DiVX'd file 11 that we created. 12 It is possible that upon close examination to find 13 certain effects in here that are referred to as artifacts 14 which are differences between the DVD quality and the DiVX'd 15 quality. I'll try to point out some of them, although it's 16 extremely difficult to find them. 17 We've conducted numerous lay experiments in which we 18 asked people to come in the room and tell whether or not this 19 was a DVD or DiVX. 20 THE COURT: That's obviously hearsay. 21 THE WITNESS: Eric, if you see any artifacts that I'm 22 missing, please point them out. 23 MR. HERNSTADT: We object. 24 THE COURT: No, sustained. Objection sustained. 25 The flowers look substantially identical from the way 63 1 they looked on the DVD. And we can look again at the 2 reflection in the glass that I pointed out earlier. It's the 3 same. 4 A. That reflection is substantially the same. I thought I 5 spotted a couple of artifacts in the back area. This wall 6 should be a constant texture and color. There's some tiny 7 changes where a little bit red showed up and it was time 8 varying. So, there was something obviously wrong because the 9 wall itself was not changing or moving during that time. 10 In general, one can look at large areas of constant 11 color and see motion where there shouldn't be motion and I'm 12 not seeing that right now, but that did happen with the wall 13 behind a little bit earlier. 14 THE COURT: O.K. You may go back to the witness 15 stand. Thank you, Dr. Shamos. 16 (The witness resumes the stand) 17 BY MR. SIMS: 18 Q. Dr. Shamos, do you have an opinion as to the quality 19 available to viewers in terms of perceptual quality of the 20 DiVX'd DeCSS version as compared to the store-bought version? 21 MR. GARBUS: Your Honor, I'm going to object. 22 It seems to me that this is certainly not within the 23 area of his expertise. 24 THE COURT: I'm going to receive it for what it's 25 worth, but I understand your point, Mr. Garbus. It's really a 64 1 question for me to decide anyway, I think to the extent it's 2 material. 3 A. There are many different compression ratios one might 4 choose in order to make a DiVX. So, I don't think it's 5 possible to make a general statement that DiVX is comparable 6 in quality or not comparable in quality to a DVD. 7 What I think we've just demonstrated and it's not my 8 opinion, but anybody, including the Court, who observed it 9 that at this compression ratio, 5.67 on this movie, that the 10 quality of the DiVX was nearly indistinguishable from the DVD 11 except possibly to an expert. 12 MR. SIMS: Your Honor, I would like to offer Exhibits 13 112, 113, 114B, 114C, 114D, 114E, 114A, 2, and 111; 111 being 14 the -- I believe being the Sleepless in Seattle DiVX DeCSS 15 version. 16 THE COURT: Well in what form does that manifest 17 itself? 18 MR. HART: We've burned that to CD-ROM. 19 THE COURT: Where is it? 20 MR. SIMS: Eric, do you have this -- I'm sorry. 21 MR. GARBUS: Your Honor, I presume since I don't know 22 how that was made that we could save that for 23 cross-examination, so I can reserve my right, and with respect 24 to the other documents that are going in, I've previously made 25 an objection, which I believe the Court has sustained with 65 1 respect to that which is hearsay, so that subject to that 2 continuing objection, the documents I will permit them to go 3 in. 4 THE COURT: Well, the others are the screen shots; 5 right? 6 MR. GARBUS: I thought 112 was going in. 7 THE COURT: Right, these are screen shots. 8 MR. GARBUS: Which has information on it. 9 THE COURT: I'm just trying to find out what they 10 are. 11 MR. SIMS: They are, your Honor, for example, the FM4 12 materials and as you've indicated and it was certainly our 13 intention they're offered, not for the truth of particular 14 statements therein, but as the -- they provided the 15 instructions that Dr. Shamos followed. 16 THE COURT: I understand. So, Plaintiff's 112, 113 17 and 114A through E and 2 are received. 18 (Plaintiff's Exhibits 112, 113, 114A through 114E, 19 and 2 received in evidence) 20 THE COURT: I'm going to reserve on 111. 21 112 to 114A are received subject to the same 22 limitation as before and I take it fundamentally, Mr. Garbus, 23 the point here is if maybe in a better analogy, if somebody 24 tells you the combination to the vault at Chase Manhattan, 25 your repetition of that doesn't prove that's the combination 66 1 to the vault. Your testimony that somebody gave it to you, 2 you went there, you tried the combination and the vault 3 opened, that's evidence. 4 MR. GARBUS: I agree, your Honor. Thank you. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 1 BY MR. SIMS: 2 Q. Dr. Shamos, by the way, how was the content of the 3 Sleepless in Seattle on Exhibit 111 placed onto that CD-ROM? 4 A. Yes, Eric went out yesterday and purchased a CD-ROM 5 burner, an external CD-ROM burner that could be attached to 6 the Sony laptop. We have the burner with us here in court 7 today. He connected it and I was present during the process 8 as the CD-ROM was burned with the DiVX box. 9 MR. GARBUS: Can we at the lunch break examine both 10 the CD-ROM and the burner that was utilized to make this? 11 THE COURT: I take it there is no objection. 12 MR. SIMS: No objection. 13 THE COURT: Certainly. 14 MR. GARBUS: And of course the exhibit itself. 15 Q. Now, Dr. Shamos, let me move to a related subject which is 16 the electronic transfer of movies that have been obtained by 17 the process you have testified to over the last hour or so. 18 First, did you attempt to obtain DiVX motion pictures 19 from other websites? 20 A. We did. 21 Q. What did you do? 22 A. I had Eric go on internet relay chat into the chat room 23 pound detective investigation, which is recommended by FM4.org 24 as a source of DiVX investigation. 25 Q. What is Internet relay chat? 68 1 A. That's a program and facility that allows people on the 2 Internet to communicate via the keyboard with one another. 3 MR. GARBUS: I guess I have a continuing objection to 4 things that this witness did not do but that other people did, 5 even if Mr. Burns is his assistant. 6 THE COURT: Before I know what the point of the 7 testimony is, I don't know whether it's appropriate under 703, 8 I don't know whether it's being offered for the truth and to 9 what extent, and so it's really very difficult for me to deal 10 with this in the abstract. If we get to a specific point on 11 which you want to make a point, feel free to make it, but I 12 can't do it in the abstract. 13 MR. GARBUS: Thank you. 14 THE WITNESS: If there is a pending question, I need 15 it repeated. 16 Q. No, I'm getting a new question. Thank you. What led you 17 to decide to try to obtain a DiVX'd motion picture off the 18 internet? 19 A. Well, that is what Mr. Hart asked, whether we could 20 successfully do that. 21 Q. And what did you ask your assistant, if anything, to do to 22 obtain such a film? 23 A. Go on internet relay chat and try to find somebody who 24 would be willing to furnish us with a DiVX. 25 Q. And did he do so? 69 1 A. Yes. 2 Q. Did he do so under your supervision? 3 A. He did so under my direction. I was not present for the 4 entire Internet relay chat session. 5 Q. How do you know that he obtained a motion picture that had 6 been DiVX'd as a result of his engaging in the Internet relay 7 chat? 8 A. Yes, because a log was made of the Internet relay chat, 9 which is one of our exhibits, and I have no reason to believe 10 that that log was fabricated. And it resulted in the transfer 11 of DiVXs in both directions between us and the person who was 12 willing to supply a DiVX. 13 Q. Let me show you what has been marked as Exhibit 115A. 14 MR. SIMS: Your Honor, in the book there are two 15 pages. We are only offering one, and I am handing the 16 reporter and the witness that. 17 THE COURT: Mr. Garbus? 18 MR. GARBUS: I would just like to see that exhibit. 19 I think as I understand this now, it's more 20 appropriate for cross. 21 THE COURT: All right. Thank you. 22 Q. Could you identify 115A, please. 23 A. Yes, 115A is a print-out of the log of the Internet relay 24 chat session in which we obtained the movie the Matrix from 25 another individual on the Internet. 70 1 Q. I want to point out a few aspects of 115A and ask you to 2 identify what they indicate to you. 3 A. Yes. 4 Q. First, there is a session start. What does that reflect? 5 A. Okay. What happens is on Internet relay chat one goes 6 into a chat room where many people can read and see on their 7 screen what people are doing and what people are typing. 8 MR. GARBUS: I don't want to persist in the 9 objections. I understand this witness's testimony, he didn't 10 do this, he didn't do the Internet chat, his expert did it. 11 So far as I know from his deposition, this witness has never 12 been on the Internet chat room. 13 MR. SIMS: Your Honor, right now I have the witness 14 explaining what a session log of an Internet chat session 15 looks like. I believe he is qualified. 16 THE COURT: If he is qualified to do that. 17 Q. Dr. Shamos, what is the time on the top line signal? 18 THE COURT: Look, let me ask this before that. 19 What's the basis of your knowledge about Internet relay chat 20 and what session start and the other indications on this page 21 is? 22 THE WITNESS: In my courses I teach various Internet 23 protocols. Internet relay chat is one I teach. I'm not a 24 regular user of Internet relay chat myself. 25 THE COURT: All right. Overruled. Go ahead. 71 1 Q. What does the session start time reflect? 2 A. Let me explain how it works. Initially when one goes into 3 a chat room, that gives many people on the Internet the 4 ability to simultaneously communicate with one another. 5 Once two of them decide they would like to continue 6 an interaction privately, that's what "session start" 7 indicates. So, the session started when my assistant Eric, 8 whose name for the purposes of this chat is VaioBoy, engaged 9 with someone named air row sell, AEROSOL, after having 10 previously found air sole through the public chat. So session 11 start with whether the two of them get down to by and are 12 going to discuss exchanging DiVXs. 13 Q. And VaioBoy refers to the name of the computer that you 14 and your assistant had purchased? 15 A. Well, he had to make up a name or a handle for himself, 16 and since he was on the Sony Vaio computer, he called himself 17 VaioBoy. 18 Q. Who is eaRoSoL? 19 A. I don't know. EaRoSoL is an individual who was in the 20 chat room who offered to exchange DiVX with us. 21 Q. The person communicating with eaRoSoL as indicated on this 22 page the handle changes from VaioBoy to VaioKid some way 23 through this page. Can you explain what that indicates? 24 A. Yes, that's correct. Approximately one third of the way 25 down the page there is a change in handle from VaioBoy to 72 1 VaioKid, but there is no overt indication of that other than 2 the fact that the name changes. 3 What happened there is that the two of them had to 4 make an agreement as to how the transfer was going to occur, 5 and at the time Eric was using a wireless card in his 6 computer. The wireless card didn't provide sufficient 7 bandwidth, so he wanted to change over to a land Ethernet 8 line, and so he had to disconnect out of the chat room. When 9 he reconnected, the Internet relay chat didn't recognize that 10 he had left, and when he attempted to use the same name again, 11 it instead defaulted to his default name which was VaioKid, 12 which is what he specified originally at the beginning of the 13 chat session. 14 You specify a primary name and a secondary name. It 15 automatically defaulted to VaioKid. He didn't have to do 16 anything explicit in order to make that happen. But VaioBoy 17 and VaioKid are the same person here, they are both Eric. 18 Q. Is the work that Mr. Burns did in terms of participating 19 in this chat and his record to you the sort of thing that 20 computer science professors and teachers and consultants such 21 as you are would rely on and do rely on? 22 A. Well, I can explain the basis for my reliance. 23 MR. GARBUS: It's a bit leading. I object. 24 THE COURT: As to leading, it's overruled. But I 25 think that it's still kind of out there in space in terms of 73 1 bringing to bear on anything specific here -- 2 MR. SIMS: I will. 3 THE COURT: -- or for what purpose. 4 Q. Would you explain the basis of your reliance? 5 THE COURT: Start by telling us what you relied on it 6 for. 7 THE WITNESS: I rely on it as being an accurate 8 transcript of what went on between Eric and eaRoSoL, and I 9 also look at the language of it and the kind of information 10 that is being exchanged, the various numbers that are in there 11 and the fact that at the end of it a DiVX of the Matrix, which 12 we previously did not have and never accquired from any other 13 place, existed on the hard drive. 14 MR. SIMS: The purpose of this, your Honor, is just 15 to show that the film -- 16 THE COURT: I understand. It's chain of custody 17 evidence in the electronic era. 18 MR. SIMS: Exactly. Thank you, your Honor. 19 Q. Is the chat log accurate and complete? 20 A. Well, the chat log is accurate and the chat log is 21 complete as it records the beginning of the private session 22 between eaRoSoL and VaioBoy. 23 Q. Was there part of the conversation that is not reflected 24 on 115A? 25 A. There is not part of the conversation between the two of 74 1 them. The part of the conversation in which Eric located 2 eaRoSoL took place over a period of about 20 minutes prior to 3 this in which he had to find somebody who was willing to 4 exchange a DiVX with him. That's not here. 5 Q. Why is it that the session log maintained on the computer 6 omits that portion? 7 A. Well, this is a log feature of Internet relay chat. It 8 records this log separate. 9 Q. And what was the line preceding what is represented here 10 which led eaRoSoL to participate in the conversation, which 11 prompted eaRoSoL to participate in a conversation? 12 A. Yes. In my declaration, since the dialog appears to begin 13 in the middle of nowhere, with this person eaRoSoL suddenly 14 showing up and saying, sure, etc., it appears to be in 15 response to a question. I thought that for counsel and the 16 Court, that log itself would be confusing, so I asked Eric 17 what was the line immediately preceding the initiation of the 18 private chat that would lead eaRoSoL to say "sure." And that 19 line was "Anyone have any DiVXs to trade for Sleepless in 20 Seattle?" 21 THE COURT: Well, how do you know that? 22 THE WITNESS: I only know it because Eric told me. 23 THE COURT: All right. Well, I think there it is 24 offered for the truth, and if there is an objection, it's 25 sustained. 75 1 MR. HERNSTADT: There is an objection. 2 THE COURT: Sustained. 3 MR. SIMS: If I may, subject to tying it up, I will 4 put Mr. Burns on the stand for the purposes of asking that 5 question. 6 THE COURT: I have an even better suggestion. Over 7 the lunch break, why don't you, Mr. Hernstadt and Mr. Garbus 8 see if you can't agree that if called he would give that piece 9 of testimony. 10 MR. SIMS: Thank you, your Honor. 11 MR. GARBUS: You should know that we had asked over 12 the weekend to depose him. We had also insisted that he be in 13 court today, and we would like to take an opportunity to 14 depose him. 15 THE COURT: He is here. I am going to deal with that 16 later. Discovery is over in this case, but maybe there are 17 special grounds to permit it. I will hear that at the end of 18 the day. 19 Go ahead, Mr. Sims. 20 Q. Did you and your assistant Mr. Burns proceed to download 21 the Matrix from eaRoSoL? 22 A. Yes, as reflected by the log, what happens here is they 23 are making an agreement on what kind of equipment they are 24 going to use, what kind of connection they are going to have 25 and what is going to be traded for what, so this is an even 76 1 Steven exchange in which we give up a Sleepless in Seattle and 2 we receive a Matrix in return. 3 Q. Do you know how long it took your assistant to download 4 Matrix from eaRoSoL? 5 A. Yes, it took six hours approximately. 6 THE COURT: How do you know that? 7 THE WITNESS: I know it in two ways. He has told me 8 it, but also I was in my office during the time of the 9 transfer and was regularly coming into his office saying how 10 is it going, how is it going, and sometime somewhat more than 11 six hours after it began I went in and it was finished. 12 THE COURT: All right. On the second basis? 13 MR. GARBUS: I object to it. 14 Q. Do you know what the technical parameters of the 15 connection were? 16 A. Yes. 17 Q. What were they? 18 THE COURT: Let me just back up. Did you observe the 19 download begin? 20 THE WITNESS: No. 21 THE COURT: Did you observe it end? 22 THE WITNESS: No. 23 THE COURT: So whatever you are telling me about how 24 long it took is what your colleague told you, is that right? 25 THE WITNESS: No, it can't be any longer than what 77 1 I'm testifying to, because I observed before it began and I 2 observed after it ended, and that period was approximately in 3 the range of six hours. 4 THE COURT: Mr. Garbus? 5 THE WITNESS: It could have been less. It couldn't 6 have been more. 7 MR. GARBUS: If there is a log, I would like to see 8 it. I object to the testimony. He wasn't there. 9 THE COURT: Well, it seems to me that based on what 10 the witness has just said he has a basis in personal knowledge 11 at least for the purpose of admissibility for testifying that 12 it didn't take more than six hours. I do not accept because 13 of the hearsay rule his testimony about what Mr. Burns told 14 him. That's the ruling. 15 MR. GARBUS: Thank you. 16 A. So, the technical parameters here were that we believe 17 that eaRoSoL was in the State of Connecticut and had a cable 18 modem connection. The reason for that is the IP address 19 listed for him here going to -- 20 THE COURT: Mr. Garbus, excuse me. Mr. Garbus? 21 MR. GARBUS: Objection. 22 THE COURT: Sustained. That answer is stricken. I 23 don't even think it was responsive to a question. Mr. Sims? 24 Q. Do you have any information or way to calculate the 25 technical parameters of eaRoSoL's connection? 78 1 A. Well, we better be specific about what technical 2 parameters we are talking about. If you are talking about the 3 bandwidth available to eaRoSoL, then we can only surmise. If 4 you're talking about the actual bit rate that was achieved 5 during the transfer, that's easy to measure because we know 6 how many bits were transferred and how long it took to do 7 that. 8 Q. What was the effective bandwidth of the transfer of the 9 Matrix from eaRoSoL? 10 A. We were getting about 250 kilobits per second. The way 11 you calculate that is to take the size of the file that was 12 transferred, divide by the number of seconds in six hours. 13 MR. GARBUS: Your Honor, I suppose we could save it 14 for cross-examination, but there are so many variables with 15 respect to that answer, namely what time of day this happened, 16 what were the various media, what time did the upload start. 17 THE COURT: I think you should save it for cross. I 18 appreciate your being helpful on this point, but I'm well 19 aware a lot of things affect transfer rates. 20 Q. Dr. Shamos, you testified that you knew from your personal 21 presence in the room at various points that the transfer of 22 the film took approximately six hours, that is, transfer of 23 the Matrix. 24 A. Yes. 25 Q. Was anything else being transferred on that line at the 79 1 same time? 2 A. There was a simultaneous transfer in both directions. We 3 were transferring Sleepless in Seattle up to aeRoSoL, and 4 eaRoSoL was transferring the Matrix down to us simultaneously. 5 Q. And within that six hour period were both films 6 transmitted? 7 A. Yes. 8 Q. What is the Internet connection that your assistant had 9 during the transfer? 10 MR. GARBUS: If I may, with respect to both films 11 being transmitted I presume that comes from information from 12 Mr. Burns. 13 THE WITNESS: No, that comes from my observation 14 after having entered the room after Mr. Burns was finished. 15 THE COURT: Go ahead. 16 Q. What Internet connection did your assistant have during 17 this transfer and how do you know that? 18 A. He was in his office with this machine connected to CMU's 19 100 megabit switch network. The limiting factor in this 20 transfer obviously -- 21 MR. GARBUS: I object. That is not the Internet 22 connection. 23 THE COURT: Look, Mr. Garbus, I understand that's 24 your cross-examination point, but it isn't an objection. It's 25 not a ground for objection. If a witness says that I observed 80 1 someone transfer heroin, it is not a proper objection to say 2 no, he didn't. 3 Q. Dr. Shamos, can you perform a demonstration similar to the 4 one that was done a few moments ago of the authorized store 5 bought DVD copy of the Matrix with the DiVX copy that you and 6 your assistant testified to downloaded from eaRoSoL? 7 A. Yes, in exactly the same manner. It will start with an 8 authorized DVD of the Matrix and show a scene that is 9 completely different in nature from the scenes in Sleepless in 10 Seattle. The quality of DiVXing depends on various factors 11 including the original scene that is being transferred. So, 12 for example, scenes that have a high degree of action are 13 difficult to compress because the scene is changing so 14 quickly. And the Matrix in distinction to Sleepless in 15 Seattle has a lot of very fast action, bullets flying and 16 rotary blades, so we will take a look at that one. 17 Q. I am going to hand up Exhibit 115D and ask you if you know 18 what this is. 19 A. Yes, 115D is a CD-ROM that was burned again using the 20 CD-ROM burner attached to the same Sony laptop, and it 21 contains the DiVX of the Matrix that we obtained from eaRoSoL. 22 Q. Were you in the room yesterday when that burning took 23 place? 24 A. Yes, I was. 25 MR. SIMS: And I am going to hand to Mr. Burns, if I 81 1 might, Exhibit 2.34. It's one of the DVDs in Exhibit 2, a 2 store bought copy with a cellophane wrapper of Matrix. 3 THE COURT: 2.34? 4 MR. SIMS: Well, Exhibit 2 is on the Exhibit list, 5 and there were a number of DVDs and we will supply you with -- 6 THE COURT: What was the Exhibit 2 that I already 7 admitted without any qualification? 8 MR. HART: Sleepless in Seattle. 9 MR. SIMS: I will supply that, your Honor. 10 THE COURT: Let's get that straightened out at the 11 lunch break. 12 MR. GARBUS: Here again the burned CD I will have a 13 chance to look at it over the lunch break, and the burner. 14 THE COURT: Yes, of course. We will take a brief 15 comfort break. Five minutes. 16 (Recess) 17 THE COURT: Just for your guidance, we are going to 18 break for lunch at 12:15 and resume at 2 to give you a little 19 more time, Mr. Garbus, to examine the disks, so I will be in a 20 position to file the opinion by 2 o'clock. 21 MR. GARBUS: I should say also, your Honor, with 22 respect to the disks, I think we got them this morning. I 23 don't know. We will take a look at it. It's absolutely clear 24 to me that we will probably need some time. 25 MR. HERNSTADT: The disks that you were given are 82 1 different than the disks that we were given. They were burned 2 at a different time, so we would like to compare them all. 3 That's all. 4 THE COURT: All right. You will have that 5 opportunity. 6 MR. HERNSTADT: Thank you, Judge. 7 THE COURT: All right, Mr. Sims. 8 BY MR. SIMS: 9 Q. Dr. Shamos, could you and your assistant perform a 10 comparison of the exhibit of the Matrix that has just been 11 marked as an exhibit, the store bought copy of the Matrix that 12 has been marked, so that the Court can look at that and then 13 look at the DiVX copy of the Matrix obtained from eaRoSoL. 14 A. Yes, we can do that the same way we did Sleepless in 15 Seattle if we go down to the laptop. 16 MR. SIMS: With the judge's permission, we will 17 surround the Sony computer and you can narrate. 18 THE COURT: If there is going to be a lot more of 19 this -- this is it? Because I was going to suggest you agree 20 on a monitor so we don't have to rearrange the courtroom. 21 MR. SIMS: We have set that one up so it will read 22 like a TV screen. 23 THE WITNESS: What is happening now is Eric has 24 inserted the film the Matrix, the authorized DVD of the Matrix 25 into the DVD drive. 83 1 THE COURT: That's Exhibit 2.34, as I understand it, 2 right? 3 MR. GARBUS: Your Honor, if you want, given the fact 4 that we have already been through this process once, if it 5 makes it easier to now look at it off the screen. 6 THE COURT: If that's okay with you, we will do it 7 that way. This exhibit is 2.34. That's the store bought copy 8 of the Matrix. We are going to mark the disk itself before 9 the day is out. 10 And I take it, counsel, just for my guidance, if I 11 take these disks and I stick them in the disk drive in my home 12 computer which I got from mail order just like everybody else, 13 they should play, right, and I can look at them on my own 14 screen. 15 MR. SIMS: I'm going to ask Dr. Shamos to answer that 16 question. 17 THE WITNESS: They will play if you have a compliant 18 player. 19 THE COURT: Well, I have no idea. 20 MR. SIMS: We have some computer experts here. 21 For the record, the copy of Sleepless in Seattle 22 which is store bought is 2.28. There is in your binder a 23 photocopy of the cover. 24 THE COURT: 2.38? 25 MR. SIMS: 2.28. Sleepless in Seattle. 84 1 THE COURT: Okay. Thank you. So the record will 2 reflect that it is 2.28 that I received earlier, not 2. 3 Proceed. 4 BY MR. SIMS: 5 Q. Mr. Burns, I notice that you have broken the seal on the 6 store bought copy of the Matrix and put it into the hard 7 drive. Dr. Shamos, would you continue the demonstration. 8 A. Yes. Please start it by just closing the CD-ROM door. 9 Now, we have chosen a portion of the movie that's 10 particularly difficult to compress, one that has a lot of 11 action and scene changes. So, if you would go to, when it 12 starts, to the chapter that we have decided to display, 13 although we are perfectly prepared to display any portion of 14 the movie -- 15 THE COURT: I am going to come down anyway, because 16 my eyes aren't that good. 17 A. What will happen is there is not only a lot of action but 18 numerous special effects are also taking place. 19 THE COURT: Lower the sound, please. 20 (DVD played) 21 Q. Dr. Shamos, when you want it switched over, just tell me. 22 A. I think that's enough. 23 Now, if you could attempt to find the same place in 24 the DiVX that was obtained from eaRoSoL and play that, please. 25 I am going to attempt to point out to the Court the DiVXs 85 1 artifacts that I see in the frame. There are some. There are 2 more than there are in Sleepless in Seattle. 3 Q. Eric, will you take the DVD out -- let the record reflect 4 that the DVD was removed and that the DVD door is open. 5 THE COURT: It so reflects. 6 Would you pause it? Pause it, please. 7 MR. GARBUS: Even a third suggestion, even if it's 8 possible, if we can watch it here and there at the same time. 9 Is that possible? If that's possible, then you could see the 10 difference between the two technologies. 11 THE COURT: It's one or the other right now? 12 MR. HART: Yes. 13 MR. GARBUS: Is there a way of setting it up so you 14 can watch both simultaneously? 15 THE COURT: Let me ask you this. I was serious about 16 the question I asked before. Does anybody have any objection 17 to my looking at these two things on my own home computer and, 18 if not, is there any reason to suppose that that will produce 19 an appropriate conclusion, whatever it is? 20 MR. GARBUS: Can we think about it? 21 MR. SIMS: It will take us a moment to find the right 22 spot. 23 (DVD played) 24 A. In looking around for artifacts, I am looking for any 25 large flat areas of the screen where things are changing that 86 1 should not be changing. It would be difficult here to see the 2 rain spilling down on the walls. However, there are some 3 places where you can see some things. 4 It's possible that a real videophile would be able to 5 see the real artifacts, but I haven't been able to see them. 6 MR. GARBUS: It seems to me, since I am familiar with 7 the Matrix and I looked at this one, I can clearly see the 8 differences without -- and it seems to me it would be 9 appropriate for the Court at some time to look at the store 10 bought and then look at this DiVX one, and then I think the 11 Court can see the difference between the two at the same time. 12 I don't know how the Court now looking at this and 13 see the difference in the shadows and the texture unless you 14 have seen the original one 35 time. 15 THE COURT: 35 times is a considerable investment for 16 this movie. This is not Gone With the Wind. 17 MR. GARBUS: Have you seen that 35 times? 18 THE COURT: I assure you not. Okay. Are we done? 19 Q. Dr. Shamos, am I correct that the two demonstrations we 20 have just seen, the two side by side demonstrations, one 21 relating to Sleepless in Seattle, one relating to the Matrix, 22 in each case compared to the store bought one is a film which 23 has been subject to DiVX, is that correct? 24 A. Yes. 25 Q. And you have indicated for the record the extent you have 87 1 some or some not difference in perceptual quality in your own 2 view. If we had looked at the DeCSS version before DiVX was 3 applied, what would have been the comparison in your opinion? 4 A. Well, it would have been identical to the store bought 5 DVD. 6 MR. SIMS: Your Honor, I would like to offer 2.34 and 7 115D, the comparison of the videos we have just been through. 8 MR. GARBUS: I assume I will have a chance to look at 9 the copy. I will object to it until I have a chance to see 10 it. 11 THE COURT: I will receive it subject to a motion. 12 And as far as a side-by-side comparison, if you think that's a 13 a