612 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 20, 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 SCOTT P. COOPER 18 FRANKFURT, GARBUS, KLEIN & SELZ Attorneys for Defendants 19 BY: MARTIN GARBUS ERNEST HERNSTADT 20 DAVID ATLAS 21 22 23 24 25 613 1 (In open court) 2 MR. GARBUS: May we approach the bench? 3 THE COURT: Yes, you and Mr. Gold may approach the 4 bench. 5 (At the sidebar) 6 MR. GARBUS: I got the Court's opinion yesterday when 7 I got back to my office, and we will try and deal with it in 8 some way. I do want to point out that as I read the 9 transcript, I was asked to stop going into an area that I 10 thought was relevant to the lawsuit because the Court felt 11 that I was getting into a recusal issue. The Court then asked 12 the question that was specifically related to the recusal 13 issue. I think it's very difficult to try a case while this 14 is going on. 15 THE COURT: I hear what you said, and what you've 16 said is, regrettably, absolutely false. And the transcript so 17 reflects. 18 MR. GARBUS: Secondly -- 19 THE COURT: I did not stop you from going into 20 anything. I raised a concern about whether you were doing it 21 for a different purpose. I said that. You then said you 22 weren't and therefore you would leave the subject. I said, 23 look, if you want to press it, it raises another issue and I 24 will deal with it. You then elected to stop. 25 MR. GARBUS: Thank you. With respect to the issue of 614 1 the press, the Court has already indicated in its previous 2 decisions some concern. I had 12 calls from the press 3 yesterday. I spoke to nobody. I do not fault Mr. Gold at 4 all. I do understand, and I could be totally wrong, and I am 5 not making criticism of any kind, that members of the 6 Proskauer firm have spoken to the press. If I'm wrong, then 7 I'm wrong. 8 MR. GOLD: I didn't hear what you said. 9 MR. GARBUS: That members of the Proskauer firm have 10 been speaking to the press, and I find nothing wrong with it, 11 I'm not even asking about it. 12 Are you saying -- 13 THE COURT: Stop it, Mr. Gold. 14 MR. GARBUS: All I'm saying is if there is to be a 15 bar, or if there is to be any significance given to any 16 discussion by any member of the defense team or the 17 defendants -- I have also seen Mr. Valenti's statements and 18 statements by the MPAA -- then if the Court wishes to impose a 19 press bar on everybody, I will not object to it. 20 THE COURT: Are you asking for it? 21 MR. GARBUS: Absolutely not. But I don't want to be 22 the only one feeling the pressure of that restriction. 23 THE COURT: Mr. Garbus, any pressure you are feeling 24 in this regard is internally generated. 25 MR. GARBUS: Thank you. 615 1 THE COURT: I have imposed no bar, no one has asked 2 me to impose a bar, and so that the record is abundantly 3 clear, yesterday when you made a statement to the effect that 4 you had not been making certain sorts of out of court 5 statements or would not, or something to that effect, there 6 was comment on the fact that you were speaking only for 7 yourself. 8 MR. GARBUS: Absolutely. 9 THE COURT: And you made clear that you were speaking 10 only for yourself. 11 MR. GARBUS: Absolutely. 12 THE COURT: And you know we are not, all of us, 13 totally in a vacuum. It is perfectly obvious that others at 14 your table, or at least one other that I can identify, is 15 speaking to the press with immense regularity. 16 MR. GARBUS: Do you care to mention the extent to 17 which the other side is speaking to the press through press 18 releases and distributing information as well? 19 THE COURT: I have absolutely no idea. I suppose you 20 are both talking to the press a lot. 21 MR. GARBUS: I am not. 22 THE COURT: Those are generic you's. Both sides are 23 obviously talking to the press. 24 (In open court) 25 Do you have a witness, Mr. Gold? 616 1 MR. GOLD: Yes, we do, your Honor. 2 MR. HERNSTADT: I think we have agreed to do Mr. 3 Johansen first. 4 THE COURT: We will take Mr. Johansen out of order. 5 MR. HERNSTADT: Thank you very much, your Honor. 6 The defendants call Jon Johansen. 7 JON JOHANSEN, 8 called as a witness by the Defendants, 9 having been duly sworn, testified as follows: 10 DIRECT EXAMINATION 11 BY MR. HERNSTADT: 12 Q. Good morning, Mr. Johansen. 13 A. Good morning. 14 Q. Where do you live? 15 A. I live in Larvik, Norway. 16 Q. How old are you, sir? 17 A. I will be 17 in November. 18 Q. What is your educational background? 19 A. High school. 20 Q. Do you work now? 21 A. Yes, I do. 22 Q. Where do you work? 23 A. I work for WAP Factory in Oslo. 24 Q. What do you do for them? 25 A. I work in interactive TV. 617 1 Q. What does WAP Factory do? 2 A. We work with WAP, the Wireless Application Protocol, and 3 interactive TV. 4 Q. Does it produce programs? 5 A. We -- yes, but not for the general public. 6 Q. Thank you. What program languages do you use? 7 A. I use C, C++, Assembler and JAVA. 8 Q. And what operating systems do you use? 9 A. I use GNU/Linux, FreeBSD and Windows NT. 10 Q. How many computers do you have at home? 11 A. I have three computers. 12 Q. And what are the operating systems on those computers? 13 A. One has GNU/Linux, one has FreeBSD and one has GNU/Linux 14 and Windows NT. 15 Q. What do you use those machines for? 16 A. The Linux only machine is used as a router, which I use to 17 connect to the Internet, and the FreeBSD machine is used as a 18 file print server and the new Linux and Windows NT machine is 19 my desktop machine. 20 Q. How long have you used Linux programs? 21 A. I used Linux for about three years. 22 Q. What is your primary operating system that you use? 23 A. That would be Linux. 24 Q. When did you first -- do you know what a DVD is? 25 A. Yes, I do. 618 1 Q. When did you first see a DVD? 2 A. I first saw a DVD in 1997. 3 Q. Okay. As of October 1999 did you own any DVDs? 4 A. Yes, I did. 5 Q. How many? 6 A. About 15. 7 Q. How many do you have today? 8 A. Today I have about 40 DVDs. 9 Q. Okay. Did you buy them? 10 A. Yes, I did. 11 Q. How much does a DVD cost in Norway? 12 A. Region 2 DVDs for the European market are about 20 to $30, 13 but they lack -- they usually lack all the extra features that 14 are on the region 1 U.S. DVDs, so I buy imported U.S. DVDs, 15 which are about 40 to $50. 16 Q. Can you play an imported U.S. DVD in Norway? 17 MR. SIMS: Object to this whole line as irrelevant, 18 your Honor. 19 THE COURT: Sustained. No, I'm not sure. Overruled. 20 I will let it go a while. 21 MR. HERNSTADT: Thank you, your Honor. 22 A. Can you please repeat? 23 (Record read) 24 A. When a DVD comes from the factory it will only play the 25 European region, which is 2, but almost all DVD players in 619 1 Norway are modified to play DVDs from the whole world. 2 Q. Who modifies the DVD players? 3 A. The stores usually have a person who they send the DVD 4 players to to have them modified before they sell them. 5 Q. Do you have DVD a player in your home? 6 A. Yes, I do. 7 Q. How many? 8 A. I have a set up DVD player for my TV and I have a DVD 9 player on my computer. 10 Q. On which computer do you have the DVD player? 11 A. That would be Linux. 12 Q. Do you know a program called DeCSS? 13 A. Yes, I do. 14 Q. What is it? 15 A. It is a program which decrypts DVD movies and stores them 16 on your hard drive. 17 Q. Does DeCSS do anything else? 18 A. No, it does not. 19 Q. Who wrote DeCSS? 20 A. I and two other people wrote DeCSS. 21 Q. How did this come about? 22 A. In September, October, 1999 I met a person on the Internet 23 and he was also a Linux user. We decided to investigate and 24 find out how we could make a DVD player for Linux. 25 Q. Why did you want to do that? 620 1 A. Well, at the time I had a dedicated Windows machine, which 2 I used only for DVD playback, and if I could get a Linux 3 player I wouldn't have to have a machine just for DVDs. 4 Q. Okay. So what did you do? 5 A. Well -- 6 MR. SIMS: Your Honor, object on relevance to this 7 whole line. 8 THE COURT: Tell me why. 9 MR. SIMS: Excuse me? 10 THE COURT: Tell me why. 11 MR. SIMS: Because the issue in the case has nothing 12 to do with why this person created an executable for DeCSS. 13 It has to do with what its function is and what Mr. Corley has 14 done. 15 THE COURT: I am going to hear the evidence, within 16 reasonable time limits, for what it's worth. Go ahead. I 17 mean the man is here from Norway, I might as well hear him. 18 MR. HERNSTADT: Do you want to hear the purpose of 19 the evidence or would you rather hear the evidence? 20 THE COURT: You are going to get the evidence in and 21 I will hear the argument later, unless we come to a point 22 where I think you have taken too much time and then you can 23 try to explain to me why we should take more. 24 Q. Mr. Johansen, what did you do next towards making DeCSS? 25 A. We agreed that the person who I met would reverse engineer 621 1 a DVD player in order to obtain the CSS algorithm and keys. 2 Q. Who was this person that you met on the Internet? 3 A. A person from Germany. I don't know his identity. 4 Q. Okay. What happened next? 5 A. About three days later when I was on line again, he 6 messaged me and told me that he had found the CSS algorithm. 7 He also sent the algorithm to me with the CSS authentication 8 source which are written by Eric Fawcus earlier. He also sent 9 me information on where inside the player he had found the 10 algorithm, and he also sent me a single player key. 11 Q. Why did he send you the information on how he found the 12 algorithm? 13 MR. SIMS: Objection. 14 THE COURT: Sustained. 15 Q. What did you do next? 16 A. Well, he had told me where inside the player he had found 17 the algorithm, so I disassembled the DVD player myself to see 18 where he had found it. 19 Q. Was this a software DVD player? 20 A. Yes, this was a software DVD player, the Xing DVD player. 21 Q. What did you do next? 22 A. Well, at the time -- the UDF is a file system which is 23 used on DVDs, and at the time Linux did not have the proper 24 support. It was currently in double opt. It was being double 25 opted so I could not get it to work, so in order to test the 622 1 decryption, if the decryption algorithm found worked, I 2 created a Window executable which would use the CSS algorithm 3 to decrypt the CSS content. 4 Q. You said you got the CSS authentication program from Derek 5 Fawcus? 6 A. Yes, I believe the CSS authentication had been posted 7 anonymously in Assembler language on the Internet, and Derek 8 Fawcus had picked that up and rewritten it in C language and 9 posted it on his website. 10 Q. How do you know that it was Derek Fawcus? 11 A. He told me. 12 MR. SIMS: Judge, move to strike. Hearsay. 13 THE COURT: Strike what Mr. Fawcus told him. 14 Q. Were there any other indications that Mr. Fawcus might 15 have been connected to the program? 16 A. The CSS-authentication? 17 Q. Yes. 18 A. Well, it was posted on his website so I presume he put it 19 there. 20 Q. All right. Tell us what happened next. 21 A. Well, after I had created the DeCSS executable, I posted 22 it on my website, I made an announcement on the LiViD mailing 23 list. I posted a link to my website. 24 Q. Why did you make an announcement on the LiViD mailing 25 list? 623 1 A. Well, I wanted them to know that we had successfully 2 reverse-engineered a DVD player and obtained the algorithm we 3 needed to make a DVD player. 4 Q. Why did you want the LiViD mailing list to know that? 5 A. That's what LiViD is about, it's about making a DVD player 6 for Linux. 7 Q. Were you able to play DVDs on a Linux machine using DeCSS? 8 A. Well, yes. After I had decrypted a movie, I used the NIST 9 MP-2 player to successfully play a DVD. I wouldn't have 10 access to the DVD features but I could play the actual movie. 11 Q. Have you looked at any other programs that do 12 substantially the same thing as DeCSS? 13 A. Yes, I have. Before I created DeCSS, I had analyzed a 14 program called DVD Rip, which I had found on the Internet. 15 Q. Why did you need to make DeCSS if you had found a program 16 that did essentially the same thing? 17 A. Well, DVD Rip, it takes a decrypted DVD movie from memory 18 and stores it on your hard drive. It did not come in source, 19 and in order to make a DVD player we would need to have 20 source, and the DVD republication didn't contain the CSS 21 algorithm and it was dependent on a DVD player for Windows. 22 Q. Did the DVD Ripped program decrypt DVDs? 23 A. No, it actually stole, if you would like to use that term, 24 the DVD movie from memory after it had been decrypted by the 25 Xing DVD player and then you save that stream on your hard 624 1 drive. 2 Q. Were the files created by DVD Rip and DeCSS the same? 3 A. Not exactly, but the files created could easily be 4 compressed using another compressed algorithm. 5 Q. And did DVD Rip, the file created by DVD Rip, was the 6 audio and video together or separate? 7 A. They were together. 8 Q. And how about with DeCSS? 9 A. Well, they are still together with DeCSS as well. 10 Q. Okay. Is there anything -- I'll move on. What happened 11 to you after -- 12 THE COURT: Let me get clarification of that. With 13 DeCSS was there any need, is there any need to synchronize the 14 audio files with the video files in order to see the movie in 15 the form you would normally see a movie? 16 THE WITNESS: Well, if you make a DivX, is that what 17 you mean? Or if you want to play the DVD movie after it has 18 been decrypted? 19 THE COURT: Either way. 20 THE WITNESS: After we decrypt a movie with DeCSS, 21 you can simply play it in your DVD player. You don't need to 22 do anything. 23 THE COURT: What if you then want to compress it and 24 transfer the compressed file to someone? 25 THE WITNESS: Well, that you would need -- I haven't 625 1 actually performed that procedure, but I believe there are 2 steps needed to resynchronize the video and audio. 3 THE COURT: What is the basis for your belief in that 4 regard? 5 THE WITNESS: I have read several articles on the 6 Internet that describe those procedures. 7 THE COURT: All right. Go ahead. 8 Q. If you use DVD Rip to decrypt or to get a decrypted DVD 9 file, is there a need to synchronize the audio and visual if 10 you are going to compress it thereafter? 11 A. Well, I haven't performed that procedure myself, but I 12 believe there would be. 13 THE COURT: Mr. Johansen, if you would sit back about 14 another six inches, the audio will be a lot clearer. 15 MR. SIMS: Move to strike. No foundation to the last 16 part of that. 17 THE COURT: I will take it for what it's worth. If 18 he hasn't done it, he hasn't done it. 19 Q. After you posted the link to the DeCSS program on the 20 LiViD site, what happened then? 21 A. Well, I had some small increase in visitors, not much. 22 After the press started releasing articles and linked it to my 23 site, I received a substantial increase in visitors. 24 Q. Was anyone on the LiViD site critical of you posting a 25 link to CSS? 626 1 A. Yes, there was at least one person who felt that we should 2 have released the source with the Xing key at the same time we 3 released the executable. 4 Q. Did you release the source at the same time? 5 A. No, we did not. 6 Q. Why didn't you? 7 A. Because the source we had contained the Xing player key. 8 If we were to release that source, the Xing would be harmed, 9 the player key would be revoked and no new DVD movies would 10 work with the Xing DVD player or the player we would have 11 created. 12 Q. Did you intend never to release the source? 13 A. Before we created DeCSS we sent the source to Derek 14 Fawcus. He was supposed to rewrite the source without the 15 need for the Xing player key and then release that onto the 16 Internet. 17 Q. Did any event occur to you personally as a result of your 18 writing DeCSS? 19 MR. SIMS: Objection. Irrelevant. 20 THE COURT: Sustained. 21 Q. What happened next? 22 MR. SIMS: Objection. Irrelevant. 23 THE COURT: Well, look, we all know the story, don't 24 we? What's the harm? Go ahead. 25 A. Well, in January, on January 25, I had to go to the local 627 1 prosecutor's office because of charges filed by the MPAA in 2 Norway, and in February I received an award, a national 3 student award which is awarded to students who are in high 4 school and have achieved excellent grades and also achieved 5 something outside of school in culture, sports, art. 6 Q. Why did you receive that award? 7 A. I believe I received the prize because of my part in the 8 writing DeCSS. 9 Q. Did you get a prize? 10 A. Yes, I did. 11 Q. Did you get any money? 12 A. I received about $2,000. 13 Q. What did you do with the money? 14 A. I used $1200 and bought a high-end Sony DVD player for my 15 TV. 16 MR. HERNSTADT: Thank you very much, Mr. Johansen. 17 THE COURT: Mr. Sims. Thank you, Mr. Hernstadt. 18 CROSS-EXAMINATION 19 BY MR. SIMS: 20 Q. Good morning, Mr. Johansen. 21 A. Good morning. 22 Q. Now, you understood when you created DeCSS executable that 23 DVD movies were encrypted using the CSS encryption algorithm, 24 correct? 25 A. Yes, I did. 628 1 Q. And you first learned of CSS in about June or July of 2 1999? 3 A. Yes, I did. 4 Q. You understood that CSS required three sets of keys to 5 play back a DVD? 6 A. Yes. 7 Q. And you understood that certain of those keys were 8 themselves encrypted? 9 A. Well, I believe I understood that the CSS license requires 10 anyone who makes a DVD player to encrypt their algorithm and 11 key inside the DVD player. 12 Q. The program you created, DeCSS, that you posted, is a 13 Windows program, correct? 14 A. Yes, that's correct. 15 Q. And you came up with the name DeCSS? 16 A. Yes, I did. 17 Q. What does the De in DeCSS stand for? 18 A. It stands for decrypt. 19 Q. DeCSS has no playback functionality, is that correct? 20 A. Yes, that's correct. 21 Q. Once a decrypttive VOB file is copied to the user's hard 22 drive, he can do anything with that file that he can do with 23 any other computer file? 24 A. Yes, that's correct. 25 Q. He can copy it again? 629 1 A. Yes, that's correct. 2 Q. Compress it? 3 A. Yes. 4 Q. He can copy it to a VCD? I'm sorry. He can copy it to a 5 video compact disk? 6 A. Well, not in its original decrypted form. The size is too 7 high. 8 Q. But if he compresses it, it can be copied to a video 9 compact disk? 10 A. Yes, if he uses sufficient compression. 11 Q. And to a CD-ROM? 12 A. Yes. 13 Q. And it can be uploaded on to the Internet -- it could be 14 uploaded to the Internet, correct? 15 A. Yes, just as any other file. 16 Q. Now, am I correct that someone in a chat room advised you 17 two months ago that he or she had downloaded a decrypted 18 DivX'd DVD movie from the Internet? 19 A. No, I believe someone told me that they had downloaded a 20 movie. They didn't tell me what form it was or which movie it 21 was. 22 Q. They didn't tell you that it was DivX'd? 23 A. No, they did not. 24 Q. What was the chat room, by the way, where you had that 25 communication? 630 1 A. That would be #PC DVD. 2 MR. HERNSTADT: I object and move to strike the last 3 several questions and answer on the grounds of hearsay. 4 THE COURT: I'm not going to take it for the truth. 5 Q. Now, Mr. Johansen, did you testify last night that you 6 were told by this person that he had downloaded a DivX'd 7 movie? 8 A. No, I believe I told last night that he had told me that 9 he had downloaded a movie. He didn't say which kind of movie 10 it was. 11 MR. SIMS: I don't quite remember the approach you 12 want, but that testimony appears on page 10 of the -- 13 THE COURT: I don't have it. Just read it. Give the 14 page and line number and just read it. If there is a dispute 15 over the accuracy of the reading or of the transcript, we'll 16 deal with it. 17 MR. SIMS: Page ten, line 3. 18 "Q. Okay. What has that person told you?" 19 A. I believe he told me he had downloaded a movie from the 20 Internet. 21 THE COURT: I'm sorry. There is no reason you would 22 be any more familiar with U.S. courtroom procedure than I 23 might be with Norwegian. At this moment counsel is going to 24 read from the transcript of what you said last night. When he 25 says "question," what that indicates is that he is about to 631 1 read what you said last night and we will let you know when 2 you are to answer again. 3 THE WITNESS: Okay. 4 MR. HERNSTADT: I can see that it's hearsay. 5 THE COURT: Well, now it goes to credibility. Go 6 ahead. 7 BY MR. SIMS: 8 Q. The transcript says: 9 "Q. Okay. And what has that person told you?" And the 10 reporter wrote down the following answer: 11 "A. He told me that he had downloaded a DivX movie." 12 Is that correct? 13 THE COURT: Mr. Sims, your question is unclear. If 14 you are asking him if it's correct that that's what the 15 transcript says, we don't need that testimony. If you are 16 asking him whether what he said last night is true, that's an 17 appropriate question. 18 MR. SIMS: That's an appropriate question? 19 THE COURT: Yes. Mr. Hernstadt? 20 MR. HERNSTADT: Your Honor, actually the first 21 question is not entirely inappropriate. This is not a final 22 transcript. 23 THE COURT: Are you disputing its accuracy in this 24 regard? Do we have to bring the court reporter in to testify 25 as to the accuracy of the transcript? 632 1 MR. HERNSTADT: No, sir. 2 THE COURT: Go ahead, Mr. Sims. 3 Q. Is it true that you were told by this person that he had 4 downloaded a DivX'd movie? 5 A. No, it is not. 6 Q. And did you testify last night that he did tell you that? 7 A. No, I believe I testified that he had said he had 8 downloaded a movie, not which kind. 9 Q. Now, this conversation you had, what was the name of the 10 chat room again? 11 A. Pound PC DVD. 12 Q. Is that the precise chat room where you had announced your 13 creation of the Windows DeCSS utility? 14 A. Yes, that is correct. 15 Q. And how many months after you made that announcement in 16 that chat room did you have this conversation with this 17 person? 18 A. Excuse me? Could you please repeat? 19 Q. Yes. How long was it after you had made the announcement 20 about the Windows DeCSS utility did you have this conversation 21 with this person in which the person told you that they had 22 downloaded a movie from the Internet? 23 MR. HERNSTADT: Object to the form. 24 THE COURT: Overruled. 25 A. I don't recall, but I believe it was about a month. 633 1 Q. And am I correct that the Pound PC DVD chat room is not 2 limited to Linux users? 3 A. The Pound PC DVD channel is open for all users of PCs and 4 DVDs. 5 Q. Thank you very much. Now, you testified on direct that a 6 German person, I think, had reverse-engineered the Xing DVD 7 player, is that correct? 8 A. Yes, that is correct. 9 Q. And that person goes by the nick Ham? 10 A. Yes, that's correct. 11 Q. And it's Ham who wrote the source code that performed the 12 authentication function in DeCSS, is that correct? 13 A. No, that is not correct. He did not write the 14 authentication code. He wrote the decryption code. 15 Q. He wrote the encryption code? 16 A. Decryption code. 17 Q. Decryption. 18 A. Yes. 19 Q. Ham is a member of Masters of Reverse Engineering or MORE? 20 A. That's correct. 21 Q. And are you also a member of MORE? 22 A. Yes. 23 Q. There are other members in Germany and Holland, is that 24 correct? 25 A. Well, the third member is in the Netherlands. 634 1 Q. And it was Ham's reverse engineering of the Xing DVD 2 player that revealed the CSS encryption algorithm, am I right? 3 A. Yes, that's correct. 4 Q. Reverse engineering by Ham took place in or about 5 September 1999? 6 A. Yes, I believe it was late in September of 1999. 7 Q. And you testified that it was this revelation of the CSS 8 encryption algorithm and not any weakness in the CSS cipher 9 that allowed MORE to create DeCSS, is that correct? 10 A. Yes, that's correct. 11 Q. You obtained the decryption portions of the DeCSS source 12 code from Ham, correct? 13 A. Yes, that's correct. 14 Q. You then compiled the source code and created the 15 executable? 16 A. Well, in the form I received it, it was not compatible. 17 Q. Well, you testified the operation of DeCSS on a Windows 18 machine initially, correct? 19 A. Actually, I tested it under -- it was under Windows. 20 Q. And in performing your tests on DeCSS, which DVDs did you 21 decrypt? 22 A. Well, I don't recall which DVD I tried first, but the 23 second DVD I tried was the Matrix. 24 Q. And how many times did you decrypt DVDs? 25 A. Well, each time I watch a movie I decrypt a DVD. I don't 635 1 recall how many times I watched the DVD movie on my computer. 2 Q. When you posted the Microsoft Windows executable version 3 of DeCSS, you had no knowledge that the program would run 4 under Linux, correct? 5 A. No, that's not correct. 6 Q. Had you run it under Linux at that time? 7 A. No, I had not, but in theory it should work using an 8 application called wine, W-I-N-E. 9 Q. When you posted the DeCSS executable on your web page, you 10 did not post the source code, correct? 11 A. That is correct. 12 Q. You testified a moment ago that you thought it would work 13 under wine, is that correct? 14 A. That is correct. 15 Q. Have you ever actually tried that? 16 A. No, I have not. 17 THE COURT: Mr. Garbus, would you have a seat, 18 please. 19 Q. Now, you first posted the DeCSS executable utility where? 20 A. I posted it on my website. 21 Q. And after that, you announced that it was available on 22 your website in two different forums or two different places, 23 correct? 24 A. Yes, that is correct. 25 Q. And what were those two places? 636 1 A. LiViD mailing list and the Pound PC DVD IRC chat room. 2 Q. Which did you do first? 3 A. That would be the Pound PC DVD chat room. 4 Q. Am I correct that when you posted the announcement to the 5 LiViD mailing list that you just testified about, that was the 6 very first time you had ever posted anything or sent any 7 message to the LiViD mailing list? 8 A. Yes, that is correct. 9 Q. And did your announcement say anything about which 10 operating systems it had been tested on? 11 A. Yes, I believe it did. 12 Q. And which operating systems did it identify? 13 A. I believe the message said it had been tested on Windows 14 95, 98 and Windows NT. 15 Q. Any others? 16 A. I believe Windows 2000 was mentioned, but I don't recall 17 if it had been tested on that or not. 18 Q. And were there any other operating systems you identified 19 as having tested it under? 20 A. No, I don't. 21 Q. So they were only Windows operating systems. 22 A. Yes. 23 Q. Now, you testified last night that your web page was a 24 support page or Sigma Designs hardware-based DVD player, am I 25 correct? 637 1 A. Yes, that is correct. 2 Q. What is Sigma Designs? 3 A. Sigma Designs is a company in California which has several 4 years of experience in MPEG. 5 Q. To your knowledge, do they manufacture a CSS-licensed DVD 6 player that runs under Microsoft Windows? 7 A. Yes, they do. 8 Q. What is it called? 9 A. It's called Hollywood Plus. 10 Q. Hollywood Plus. 11 A. Yes. 12 Q. And you are also aware that Sigma Design has announced 13 plans to release a Linux-based DVD player? 14 A. Yes, I am. 15 Q. Do you understand that Sigma Designs has a license from 16 the DVD-CCA to do that? 17 A. Well, I would assume they have or else they wouldn't be 18 making it. 19 Q. And have you provided some assistance to the French 20 programmer for Sigma Designs who is working on that Linux DVD 21 player, correct? 22 A. Not direct assistance, but I have e-mailed him. 23 Q. You have? 24 A. E-mailed him. 25 Q. And have you provided any technical information to him? 638 1 A. No, I have not. 2 Q. Before you posted the DeCSS executable onto your web page 3 and made the announcement that you testified about, have you 4 ever had any communications with the defendant in this lawsuit 5 Eric Corley? 6 A. No, I have not. 7 Q. You never communicated with him at all until after this 8 lawsuit was filed, correct? 9 A. Yes, I believe that's correct. 10 Q. And you never saw Mr. Corley post a message to the LiViD 11 mailing list prior to that time, correct? 12 A. Yes, that is correct. 13 Q. In fact to your knowledge -- strike that. 14 Do you have any knowledge that Mr. Corley has ever 15 been a member of the LiViD group? 16 A. No, he has not. 17 Q. Now, at the time you posted your message onto the LiViD 18 mailing list that you mentioned, you did not have the DeCSS 19 source code on your page, correct? 20 A. That is correct. 21 Q. And am I correct that some members of the LiViD group 22 expressed anger at you for not providing the source code with 23 the utility? 24 A. Yes, that is correct. 25 Q. What is a flame war? 639 1 A. A flame war is when two or several people engage in a 2 discussion which gets out of hand. 3 Q. Am I correct that you got involved in a flame war with at 4 least one member of the LiViD group over the fact that you 5 didn't post the DeCSS source code? 6 A. I did get involved in a flame war, but I am not aware if 7 he was a member of the LiViD group or not. 8 Q. Where did the communication you had with respect to this 9 take place? 10 A. Some of it took place on the LiViD mailing list and some 11 of it was sent directly. 12 Q. And it began on the LiViD mailing list? 13 A. Yes, that is correct. 14 Q. Now, Mr. Fawcus created the css-auth source code that you 15 used in creating the utility, correct? 16 A. Yes, that is correct. 17 Q. And the dispute centered around the fact that the German 18 member of MORE, Ham, had used Mr. Fawcus's code but had 19 removed Fawcus's name and copy left notification, is that 20 correct? 21 A. Yes. 22 Q. What is copy left, as you understand it? 23 A. Copy left is when you use basically a copyright that gives 24 the user freedoms instead of taking them away. 25 Q. And the dispute centered around someone's complaint that 640 1 MORE was not playing by the -- I'm sorry. What is GPL? 2 A. GPL is a copy left license provided by the Free Software 3 Foundation. 4 Q. Was MORE's failure to credit Mr. Fawcus a violation of the 5 GPL license, as you understood it? 6 A. Yes, I believe so. 7 Q. In a nutshell, MORE was not playing by the GPL rules that 8 the LiViD group normally plays by, correct? 9 A. Yes, that is correct. 10 Q. And it was your understanding that Mr. Fawcus could sue 11 you for that, correct? 12 A. Well, yes, that is correct. 13 Q. And you eventually settled your difference with 14 Mr. Fawcus? 15 A. Yes, that is correct. 16 Q. You got a special license from him to use his source code 17 without credit, correct? 18 A. Well, he agreed that we didn't have to do anything to 19 provide new copies of the source with the original header. 20 Q. And your reason for doing that was to avoid making DeCSS's 21 source code fully open source. 22 A. That's not correct. It was already an open source at that 23 time. 24 Q. Am I correct that you didn't want it to be open source so 25 that you could keep the secrecy of the Xing key? 641 1 A. Yes, that is correct. 2 Q. The Linux community, as you understand it, believes in 3 free source code, open source code, correct? 4 A. Yes, that is correct. 5 Q. And MORE didn't make DeCSS available with open source code 6 to the entire Linux community when it posted the utility, 7 correct? 8 A. Yes, that is correct. 9 Q. When you announced to the LiViD mailing list in October 10 that DeCSS.exe was available on your web page, you said that 11 it works with the Matrix, DoD Speed Ripper doesn't, correct? 12 A. Yes, that's correct. 13 Q. It's your belief, I take it, that DeCSS is superior to 14 Speed Ripper? 15 A. Excuse me. Can you please repeat. 16 Q. Do you believe that DeCSS is superior to Speed Ripper? 17 A. Not directly superior, but it does decrypt some movies 18 that the Speed Ripper did not decrypt at that time. 19 MR. SIMS: I have no more questions. Thank you. 20 THE COURT: Mr. Hernstadt. 21 MR. HERNSTADT: Thank you. 22 REDIRECT EXAMINATION 23 BY MR. HERNSTADT: 24 Q. You were asked if you had used DeCSS to decrypt a DVD. 25 Have you ever used a decrypted file from a DVD to make a DivX? 642 1 A. No, I have not. 2 Q. Have you ever placed a decrypted DVD on the Internet, 3 transmitted it in some way? 4 A. No, I have not. 5 Q. Have you ever made it available on the Internet for 6 someone to download? 7 A. No. 8 Q. Have you ever sold a decrypted DVD in any form? 9 A. No, I have not. 10 Q. Have you ever traded a decrypted DVD with anyone? 11 A. No, I have not. 12 Q. Have you ever downloaded a DivX movie? 13 A. No. 14 Q. Have you ever made a DivX movie available for uploading? 15 A. No, I have not. 16 Q. Have you ever made a DivX movie available for someone else 17 to download from your website? 18 A. No, I have not. 19 Q. Have you ever used DeCSS for anything other than viewing 20 DVDs that you purchased? 21 A. No, I have not. 22 Q. You mentioned the Sigma Designs player. Is that a 23 software player? 24 A. Well, it's a soft -- it's hardware-based. It comes with a 25 piece of hardware but you also need the player that comes with 643 1 it, a piece of software. 2 Q. Does that mean you have to buy two pieces? 3 A. The product contains two pieces. 4 Q. You testified that you did not release the source code on 5 the DeCSS executable when you made the program a available on 6 your website. 7 A. Yes, that is correct. 8 Q. Did you make the source code available to Derek Fawcus? 9 A. Yes, that is correct. 10 Q. And did Derek Fawcus write that source code -- rewrite the 11 source code? 12 A. Yes, I believe he did. 13 Q. What operating system did he rewrite it for? 14 A. He wrote it for Linux. 15 Q. Why did you not want to release the source code for DeCSS? 16 A. Because the DeCSS source code contained the Xing player 17 key. If we were to release that source, the Xing key would be 18 revoked, Xing would probably have their license revoked, and 19 new DVDs which would be released later would not work with 20 Xing's player nor the player we would have created. 21 Q. You said that the German member of MORE found the CSS 22 algorithm by reverse-engineering the software. Did he say to 23 you whether it was difficult to do? 24 A. No, he said it was not difficult. 25 Q. Okay. You said that you did the same thing based on what 644 1 he informed you about how he had done it? 2 A. Yes, I did. 3 Q. Did you find it difficult to do? 4 A. No. 5 MR. SIMS: Objection. Irrelevant. 6 THE COURT: Sustained. 7 Q. How long did it take you to find the algorithm? 8 MR. SIMS: Objection. Irrelevant. 9 THE COURT: Why is it relevant, Mr. Hernstadt? 10 MR. HERNSTADT: Well, Mr. Sims brought it out on 11 cross-examination, and I am merely trying to clarify the 12 record with respect to the reverse-engineering process. 13 THE COURT: Did you raise it, Mr. Sims? 14 MR. SIMS: Certainly not in terms of effectiveness, 15 which is where we're going now. 16 THE COURT: Did you raise it, whether it was 17 subjectively in terms of effectiveness or not? 18 MR. SIMS: I don't think I did. 19 THE COURT: Let me look at my notes then. 20 MR. SIMS: I did ask questions about the obfuscation 21 about the Xing key, but ... 22 THE COURT: Mr. Hernstadt, I don't see it quickly. I 23 mean, is there something that you remember that will prompt my 24 memory? 25 MR. HERNSTADT: I believe it was something about that 645 1 the key was hidden. I don't recall exactly what it is. I 2 just had it in my note. 3 THE COURT: It will take less time to hear it then. 4 Overruled. 5 THE WITNESS: Can you please repeat the question? 6 THE COURT: Did you find it difficult to do, was the 7 question. 8 THE WITNESS: No, I did not. 9 Q. You discussed a dispute with Derek Fawcus about taking his 10 name off the source code that he had provided. Were you aware 11 of that? 12 A. No, I was not aware of that. 13 Q. When did you find out that his name had been taken off the 14 source code? 15 A. I found that out when he posted a message to the LiViD 16 mailing list saying that one of the files we had in our source 17 was actually his, but it did not contain the GPL header on his 18 name. 19 Q. What did you do when you read that posting to the LiViD 20 list? 21 A. I e-mailed him and tried to sort out a solution. 22 MR. HERNSTADT: Thank you very much, Mr. Johansen. I 23 have nothing further. 24 MR. SIMS: Nothing more, your Honor. 25 THE COURT: All right. Mr. Johansen, thank you very 646 1 much. 2 Mr. Gold? 3 MR. GOLD: I'm going to call Mikhail Reider to the 4 stand. 5 THE COURT: Is Mr. Young back there? We are working 6 on your request, but in the interim I can tell you that you 7 are able to buy from the court reporters a floppy that has the 8 day's proceedings by about 7 o'clock every night. 9 MR. COOPER: Good morning. Your Honor, plaintiffs 10 call Mikhail Reider. 11 MIKHAIL REIDER, 12 called as a witness by the Plaintiffs, 13 having been duly sworn, testified as follows: 14 MR. GARBUS: May I just ask one thing? There is some 15 question about whether or not the plaintiffs will rest after 16 this witness or call another witness. Could we know that so 17 we can decide how to arrange our witnesses? 18 THE COURT: That's a reasonable request. 19 Mr. Gold? 20 MR. SIMS: I don't know the answer to that. The 21 short answer is if we have completed a stipulation, and we 22 sent our work over to Mr. Hernstadt -- let me go find out. 23 THE COURT: I take it the answer is in your hands at 24 the moment, Mr. Garbus. 25 MR. SIMS: I don't believe it will be necessary, 647 1 but -- 2 MR. GOLD: Your Honor, this will be our last witness 3 and we will rest after she leaves the stand. 4 THE COURT: Whether or not you get the stipulation? 5 MR. GOLD: Yes. 6 THE COURT: Okay. You have your answer, Mr. Garbus. 7 Proceed, Mr. Cooper. 8 MR. COOPER: Thank you, your Honor. 9 DIRECT EXAMINATION 10 BY MR. COOPER: 11 Q. Good morning, Ms. Reider. 12 Q. Who is your employer? 13 A. The Motion Picture Association. 14 Q. What is your current job position? 15 A. I am manager of worldwide Internet antipiracy operations. 16 Q. What is your education background? 17 A. I have an undergraduate Bachelors in international 18 relations taken from the California State University of 19 Northridge, and an M Phil. in international conflict 20 resolution from the University of Dublin, Trinity College. 21 Q. What is your employment background? 22 A. From 1985 through '89 I was with the Rand Corporation, a 23 governmental think tank as a research assistant. Subsequent 24 to that, I took my M Phil. and joined the banking interest 25 Great Western Financial Corporation as a legislative and 648 1 regulatory analyst. After that, I joined the Department of 2 Justice Drug Enforcement Administration as an intelligence 3 research specialist. 4 Q. When were you with the Department of Justice for the DEA? 5 A. From 1992 through '95. 6 Q. And what did you do with the DEA? 7 A. As an intelligence research specialist I collected and 8 analyzed intelligence as it related to federal narcotics 9 trafficking investigations. 10 Q. And after the Department of Justice, what did you do next? 11 A. I was briefly with the United States State Department 12 Peace Corps in Thailand. 13 Q. And how long were you with the Peace Corps in Thailand? 14 A. Five to six month. 15 Q. And after you returned to the United States, what was your 16 next position? 17 A. Again with the U.S. Department of Justice, this time in 18 the Federal Bureau of Investigation. 19 Q. What did you do for the F.B.I.? 20 A. Intelligence research specialist. 21 Q. And that was during what period? 22 A. 1995 through '97. 23 Q. After your position with the F.B.I., what was your next 24 position? 25 A. I joined the California State Bar Association as an 649 1 investigator. 2 Q. And how long were you with the California State Bar? 3 A. Only eight months. 4 Q. Why was that? 5 A. The Governor of California vetoed the fee bill which 6 funded the state bar. 7 Q. Okay. And after that you took a position with? 8 A. The Motion Picture Association. 9 Q. I see. And your position with the MPAA began when? 10 A. In spring of 1998. 11 Q. Okay. Did you use computers in connection with the job 12 positions you just described? 13 A. Yes. Yes, through all of the jobs. 14 Q. In what ways? 15 A. Both in research on the Internet and specialized data 16 bases, as well as using proprietary software programs for 17 analyzing large volumes of electronic data. 18 Q. Do you have any specialized training in Internet 19 investigations? 20 A. Yes, I do. 21 Q. What is that training? 22 A. Both through the Department of Justice through 23 intelligence schools and also through HTCIA. 24 Q. What is HTCIA? 25 A. The High Technology Crime Investigators Association. It's 650 1 a worldwide body comprised of state, local, federal law 2 enforcement from around the world as well as private industry 3 security officials who are dedicated to fighting cyber crime. 4 Q. Do you have any computer program experience? 5 A. Yes, I do. 6 Q. How extensive is that? 7 A. It's limited. UNIX, BASIC, does. 8 Q. Was that also received in the course of your various prior 9 employments? 10 A. Yes, it was. 11 Q. What are your current job responsibilities at the MPAA? 12 A. I oversee all Internet investigations around the world and 13 coordinate between our worldwide offices. 14 Q. Since the beginning of your employment by the MPAA in 1998 15 has the MPAA been monitoring the Internet for infringement 16 activity? 17 A. Yes, actively. 18 Q. Can you generally describe what has been done? 19 A. Well, we monitor and search routinely website, FTP sites, 20 FSUs, file swapping utilities, IRC, the Internet relay chat 21 channels, news groups or Usenet. 22 Q. Could you briefly describe what file swapping utilities 23 are? 24 A. They are basically glorified FTPs. They allow individuals 25 to directly transfer files between one another, music or 651 1 movies. 2 Q. Can you give me the name of any file swapping utility that 3 you are currently monitoring? 4 A. Sure. IMESL, Gooey, Hotline, ScourNet, FileShare, 5 FileSwap, Freenet. 6 Q. Is Napster also a file sharing utility? 7 A. Napster also is an FSU. 8 Q. Would you just tell us what Internet relay chats are? 9 A. It's basically the CB radio of the Internet. It was 10 created in the mid to late 80s. It allows people to talk in 11 real time on line to one another no matter where they are, or 12 near real time. They have a number of networks and within 13 that channels. 14 Channels are created by any user whenever they feel 15 like it, so channels can go up and go down in a matter of 16 minutes or hours, or channels can be kept alive for years if 17 the operators of that channel so deem. 18 Q. Once these channels are set up, are they all accessible to 19 the public? 20 A. No, some of them are members only. 21 Q. How often does the MPAA monitor the Internet? 22 A. Daily. 23 Q. And how do you identify sites to monitor? 24 A. It's a combination of factors. Our member companies will 25 send up sites they wish us to monitor. The public will call 652 1 or write in to us with sites as well as through our own 2 intelligence gathering and investigations we have sites that 3 routinely lead us to other plays that harbor piracy on line. 4 Q. Have the MPAA come aware of any instances of member 5 companys' DVDs being decrypted and made available in any form 6 on the Internet prior to October 1999? 7 A. No. 8 Q. When was the first time you heard of the existence of a 9 utility that defeated CSS and decrypted the content of one of 10 the studio's DVDs? 11 A. Early to mid-October of 1999. 12 Q. What was that utility? 13 A. DeCSS. 14 Q. What was the source of the original information you 15 received in the existence of DeCSS? 16 A. I found it on a news posting on Slashdot. 17 Q. What did you do about the information regarding the 18 existence of DeCSS? 19 A. I followed their links and ultimately downloaded a copy of 20 DeCSS. 21 Q. And did you test it to see if it worked? 22 A. Yes, I did. 23 Q. Did it? 24 A. Yes, horrifyingly simple to use. 25 Q. How long did it take you to download DeCSS? 653 1 A. A matter of minutes. 2 Q. And how long did it take you to decrypt a DVD using DeCSS? 3 A. Approximately five minute. 4 Q. What operating system were you using? 5 A. Windows. 6 Q. Was DeCSS a Windows program? 7 A. Yes, it was. 8 Q. What did you do next? 9 A. I notified our legal department and Ken Jacobson, who is 10 my direct supervisor, and began to request the issuance of 11 cease and desist letters. Ultimately we filed this lawsuit. 12 Q. Now, have you ever heard of a program called DiVX? 13 A. Yes, I have. 14 Q. And when did you first become aware of that program? 15 A. Late February, early March of 2000. 16 Q. Did you download it? 17 A. Yes, I did. 18 Q. And did you examine it? 19 A. Yes, I did. 20 Q. What is it? 21 A. It's a codec or compression, decompression algorithm that 22 allows one to take the rather substantial files from the DVD 23 and highly compress them to make it easy for distribution or 24 manipulation. 25 Q. Did there come a time when the MPAA became aware of the 654 1 availability of decrypted DVDs on the Internet? 2 A. Yes, we did. 3 Q. When was that for the first time? 4 A. Late April, early May of 2000. 5 Q. How did you become aware of that? 6 A. Through our routine monitoring some of the pirate sites we 7 routinely look at, we began to see evidence of these decrypted 8 DVDs. 9 Q. How many titles initially did you see being available? 10 A. A handful. 11 Q. How many sites? 12 A. I'm sorry? 13 Q. How many sites initially? 14 A. Again, a handful. 15 Q. Since late April or early May, has the MPAA become aware 16 of any increase in the availability of encrypted DVDs? 17 A. Absolutely. The number has certainly surged upward. 18 Q. On what types of sites have you seen these DVDs being 19 available? 20 A. It runs the gamut from website to FTP sites, offering on 21 IRC channels, FSUs. 22 Q. Do all of the sites offer decrypted DVDs for download or 23 hard goods through barter or sale? 24 A. No, not all of them. 25 MR. GARBUS: I would object unless we have the 655 1 windows or the pictures of the site that she is referring to. 2 Other than that, it's hearsay. 3 THE COURT: What do you say, Mr. Cooper? 4 MR. COOPER: Your Honor, the windows or site, if you 5 will, are on the Internet and are constantly changing. I 6 don't believe that there are any screen shots other than those 7 we have produced in the discovery. We have produced some of 8 those, and we are eliciting general testimony regarding this 9 witness's experience and activity in connection with what the 10 MPAA knew about these activities and when. And for that 11 purpose I think it's competent. 12 MR. GARBUS: I will object to any testimony that's 13 not related to particular screen shots. Any testimony that 14 she wants to talk about that has screen shots related to it or 15 marked in as exhibits, I would have no objection to. 16 THE COURT: Is it your position, Mr. Garbus, that the 17 plaintiffs in this case and the MPAA knew and did nothing 18 about cracks of CSS for a long time? Haven't you been singing 19 that refrain? 20 MR. GARBUS: Yes. 21 THE COURT: And that's not a pejorative comment, but 22 since the opening of the trial? 23 MR. GARBUS: Yes. 24 THE COURT: Why isn't it relevant to that? 25 MR. GARBUS: Anything is relevant if there is 656 1 admissible evidence with respect to it. 2 THE COURT: It's state of mind. It's offered not for 3 the purpose of the truth. It's offered for the purpose of 4 state of mind. 5 MR. GARBUS: I object to it. I think it's offered -- 6 THE COURT: Why isn't it relevant to state of mind? 7 Is state of mind relevant, in your estimation? 8 MR. GARBUS: I think the state of mind is not 9 relevant. I think what's relevant is what the truth is. 10 THE COURT: Mr. Cooper, what do you say to that? 11 MR. COOPER: Well, we agree that state of mind is not 12 relevant, although we are trying to respond to what we 13 understood the defendants' position was. This information is 14 being offered as testimony of what Ms. Reider saw in 15 connection with her activity for the MPAA. It's competent 16 testimony with respect to that. 17 Whatever Mr. Garbus might want to ask her regarding 18 what an individual site may have said, I think the issue is 19 what the MPAA was doing in connection with its investigations 20 in response to Mr. Garbus's prior positions that it wasn't 21 doing enough. 22 THE COURT: Look. Haven't the plaintiff's taken the 23 position -- I mean, isn't this a precise turnabout? Mr. 24 Garbus spent a couple of days trying to establish that this 25 CSS system had been cracked a long time ago, the studios knew 657 1 it, they didn't protect themselves, and you folks constantly 2 objected that none of that was relevant on the ground that the 3 effectiveness or robustness of your security system was not 4 material here, and I sustained those objections. Right? 5 MR. COOPER: Yes, your Honor. 6 THE COURT: All right. So now comes turnabout. You 7 want an answer on all of that, and I previously ruled it out 8 when he tried to put it in. Why shouldn't I do the same thing 9 for the same reason when you try to put it in? 10 MR. COOPER: Your Honor, what you are suggesting 11 about the proper scope of the issues that are reasonably and 12 in material dispute in this case, we agree with. The question 13 here is a little different than the one you earlier ruled 14 upon. 15 THE COURT: Tell me how it's different. 16 MR. COOPER: The earlier question went to the 17 efficacy of CSS as a security system. 18 THE COURT: Right. 19 MR. COOPER: This I believe addresses Mr. Garbus's 20 second point, which we also believe is irrelevant, and that is 21 that the MPAA, once the circumvention device became known, did 22 too little or otherwise failed to react to the threat imposed 23 by DeCSS quickly enough. And while I believe that that is 24 also irrelevant, we are attempting to respond to that to the 25 extent the Court is interested in the issue. 658 1 THE COURT: Well, let's find out. Mr. Garbus, what 2 Mr. Cooper describes as your second point, are you in fact 3 making that argument, that is to say, that the MPAA was too 4 slow getting here? 5 MR. GARBUS: What she is testifying to, as I 6 understand it, is that -- 7 THE COURT: Mr. Garbus, I will let you say what you 8 want to say, but I really would like an answer to the question 9 first. 10 MR. GARBUS: Can I hear the question again. 11 (Record read) 12 THE COURT: Are you making that argument? 13 MR. GARBUS: The answer is yes. 14 THE COURT: Overruled. I am not taking it for the 15 truth. I am taking it on the issue of whether the MPAA's 16 right to relief, if it has any, is in any way affected by 17 undue delay in getting to the courthouse. 18 Go ahead, Mr. Cooper. 19 BY MR. COOPER: 20 Q. Do all of the sites you have just described offer 21 decrypted DVDs for download or hard goods through barter or 22 sale? 23 MR. GARBUS: Let me see if can I make it clear. Our 24 point is -- 25 I'm prepared to do this at the sidebar. 659 1 THE COURT: Go ahead, Mr. Garbus. 2 MR. GARBUS: It's our point that once they knew about 3 DeCSS, two things happened. One is they did nothing about it; 4 two, that prior to the time that they knew about DeCSS, they 5 knew about other utilities that ripped DVDs, and as I 6 understand what her testimony is, it is that she saw sites 7 that said it's from the DVD. These are not sites that say, as 8 I understand her testimony, it's from a DVD that's deencrypted 9 through DeCSS. So just let me parse out our position a little 10 more precisely, if I can. Again, I am prepared to do it at 11 the sidebar unless the Court is comfortable. 12 THE COURT: Mr. Garbus, you can stop repeating that. 13 If I find I need a sidebar, I will let you know. 14 MR. GARBUS: Thank you. 15 It is our position that last year they knew about a 16 number of procedures that could be utilized with respect to 17 DVD movies, that the only procedure that in any way related to 18 Linux or, if you want to call it a competitive technology, was 19 DeCSS. What they did is they did not go after any of the 20 technologies, they only went after DeCSS. So the delay deals 21 with their knowledge prior to DeCSS that there were other 22 rippers and other utilities and their failure to do that. At 23 least that's our position. 24 THE COURT: My ruling is the same. Go ahead, 25 Mr. Cooper. 660 1 I'm not taking it for the truth. I'm taking it as I 2 indicated. 3 MR. COOPER: Would you read back the pending 4 question, please? 5 (Record read) 6 THE COURT: That is, the truth of anything that was 7 on the websites. 8 A. No, not all of the sites. Some of them point in the 9 direction of where to locate them but they don't actually 10 offer distribution themselves. 11 Q. And has the MPAA followed those pointers from one site to 12 another? 13 A. Yes, we have. 14 Q. And approximately how many of these site have you become 15 aware of in the last two and a half months? 16 THE COURT: Be specific about what sites you are 17 talking about. So far we have ones that offer to barter and 18 sell and you've got ones that point. 19 Q. Can you distinguish between the ones that offer for 20 barter, sale or download on one hand and the ones that point? 21 A. Yeah. Approximately over 40 sites. 22 Q. Of which type? 23 A. Those which offer for barter or sale, distribution as 24 opposed to just pointing in the direction. 25 Q. What is the MPAA currently doing about these sites? 661 1 A. We have ongoing investigations. 2 Q. And can you, without going into the investigative details 3 of any of those investigations, tell me anything about them? 4 A. We have investigations currently active with federal law 5 enforcement here in the U.S. and worldwide. 6 Q. Which U.S. agencies? 7 A. U.S. Customs, Secret Service and F.B.I. 8 Q. Do you have information regarding any connection between 9 the recent availability on the Internet of decrypted DVDs and 10 the utility DeCSS? 11 A. Absolutely. 12 Q. What is that information? 13 A. Well, prior to the appearance of DeCSS we had seen no 14 decrypted DVDs anywhere on the Internet, and thereafter we 15 watched DeCSS proliferate alarmingly. It was simple to use. 16 We saw decrypted DVDs appear for sale and distribution not 17 long thereafter. 18 MR. GARBUS: I object to the question. She was asked 19 what information she had and then she responded with 20 speculation. 21 THE COURT: Where was the objection before she 22 answered, Mr. Garbus? 23 MR. GARBUS: It was only after she answered that it 24 was clear. 25 THE COURT: You know better than that, with all due 662 1 respect, but I think part of this testimony -- 2 MR. GARBUS: Look at the answer. See where the 3 answer comes in. 4 THE COURT: Part of this answer has no foundation, at 5 least to the extent it's offered for the truth. The portion 6 in which the witness said that prior to the appearance of 7 DeCSS they had seen no decrypted DVDs anywhere on the 8 Internet, I think that is perfectly admissible. It relates to 9 her personal knowledge. 10 The part of the answer that speaks of watching it 11 proliferate at an alarming rate I take to be that she saw lots 12 of sites on the Internet offering movies, but I have heard no 13 evidence based on personal knowledge that what was on the 14 Internet, that is to say, offers to sell or barter or 15 whatever, are properly considered for the truth of those 16 statements. 17 The part of the answer that says we saw decrypted 18 DVDs appear for sale and distribution not long thereafter, I 19 guess I need to hear more about in order to find out on what 20 basis the witness is telling me that. 21 MR. COOPER: Just to understand that last point, I 22 believe the witness testified that DeCSS was first on the 23 Internet in October and that the first appearance -- 24 THE COURT: Here is your problem, Mr. Cooper. Your 25 problem is whatever was said a few minutes ago that you are 663 1 trying to prove, that in fact since October there are lots of 2 movies being bought and sold over the Internet that were 3 decrypted through DeCSS, you are trying to prove it by saying 4 that there were none before October. Then DeCSS appeared, all 5 of which I think is relatively -- at least the second point is 6 uncontroversial. And the first point is evidence to support 7 your position, although it's disputed. 8 The third point depends on the truth of whatever was 9 on the Internet. That is to say, if the witness saw 40 10 website offerings to sell DVD movies, you would like me to 11 conclude that in fact those websites were, as they said on the 12 Internet, offering to distribute decrypted movies, that is, 13 they would perform as they indicated they would perform; and 14 then you are asking me further to draw the inference from the 15 timing that whatever they were selling or offering to sell 16 came from the DeCSS. 17 Now, the link you are having a problem with here is 18 that I think Mr. Garbus's objection is that it would be 19 inappropriate for me to assume that simply because you see on 20 the Internet a page that says "come get your copy of the 21 Matrix from us" means that in fact if somebody went to that 22 site a decrypted copy of the Matrix would be forthcoming. 23 That is essentially your argument, right, Mr. Garbus? 24 MR. GARBUS: Yes, or that there is any reason to 25 believe that it comes from DeCSS or any other source. 664 1 THE COURT: Well, I understand that point as well, 2 but they are asking me to infer that from the timing. 3 MR. GARBUS: Yes, your Honor, you stated our 4 position. 5 THE COURT: Okay. Now, he is making what I take to 6 be essentially a hearsay and/or a competence argument, 7 probably more hearsay than competence, about my considering, 8 or the purpose for which I consider Ms. Reider's testimony 9 about what is available on the Internet. 10 The situation would be the same if we were trying a 11 trademark case and you were trying to prove the availability 12 in the marketplace of counterfeit Levi jeans from newspaper 13 articles that indicated that somebody was offering counterfeit 14 Levi jeans. Now, there is perhaps a legal issue that you may 15 want to brief, both of you, as to whether that's appropriate 16 evidence, but I think that analogy is exactly what we're 17 talking about. Right, Mr. Garbus? 18 MR. GARBUS: Yes, sir. 19 MR. COOPER: That's Mr. Garbus's analogy, your Honor. 20 We don't believe -- 21 THE COURT: No, that was my analogy. 22 MR. COOPER: We don't believe that's the correct 23 analogy in this case. This is not a case in which we are 24 pursuing for the relief sought in this case, the relief that 25 would be sought in a case in which the bootleg -- 665 1 THE COURT: No, of course you're not. But the whole 2 purpose of this line of testimony, putting aside responding to 3 this sort of quasi laches argument, is to persuade me that 4 this is a real problem. And whether it's a real problem 5 depends, at least in part, on whether it's out there in the 6 marketplace. And the way those kinds of issues are usually 7 handled in a trademark case is that the investigator comes in 8 and says that I went to the store on Fordham Road and I bought 9 these six pairs of counterfeit jeans and here they are, and a 10 witness shows up from Levis and says we didn't make them, 11 they're counterfeit. 12 MR. COOPER: Your Honor, this goes to the question of 13 the appropriateness of relief and the question of a reasonable 14 apprehension of harm in the absence of that relief. 15 We are not attempting to prove here or indeed seek 16 the relief associated with copyright infringement per se. We 17 are not attempting to adduce the kinds of hard evidence that 18 would be necessary for a case that involved those issues. 19 What we are doing is attempting to provide to you our 20 reasonable apprehension that in the absence of the release 21 sought we will be harmed. 22 THE COURT: Well, you know, I hear the words but I'm 23 not sure I understand the symphony, to mix my metaphors very 24 badly. I really am not. 25 Look, I will hear the testimony, Mr. Garbus, but you 666 1 clearly know I understand the point, and if you want to brief, 2 either or both sides, the issue of what I'm supposed to 3 consider, that aspect of the testimony we have just narrowly 4 focused on, the witness's testimony about what's available 5 over the net, you are welcome to brief it. And in order to 6 decide this case, if I find I have to decide it, I'll decide 7 it. For now I'll hear the evidence. 8 MR. COOPER: Thank you, your Honor. Let me just 9 conclude with this witness then, your Honor, based on what you 10 have said, with two areas of questions. 11 BY MR. COOPER: 12 Q. First, I believe that we left off with this question of 13 the connection between DeCSS and the decryption of movies. 14 Have you seen any direct connection between DeCSS and 15 the decrypted DVDs on the Internet in your investigation? 16 MR. GARBUS: I object on the grounds of lack of 17 foundation. 18 THE COURT: Let me just go back to one or two more 19 thoughts that just occurred to me about the last question 20 before you go on, Mr. Cooper. 21 Among the things that you ought to consider, if you 22 are going to brief this point, and then I will consider 23 whether you brief it or not, are these: 24 First of all, I suppose it might be argued that when 25 somebody posts on the Internet saying, "Come to me, I'll sell 667 1 you a copy of the Matrix," that is a statement of a state of 2 mind, or a present intention or something like that from which 3 one is entitled to infer conduct. I'm not sure about that, 4 but that's why I put it on the table. 5 Secondly, maybe this notion of a verbal act as it 6 relates to the hearsay rule is implicated. 7 I'm really not sure about either one of those points, 8 but I want to let you know I'm thinking about them so you can 9 respond in due course. 10 Okay, Mr. Cooper. 11 MR. COOPER: Thank you, your Honor. 12 BY MR. COOPER: 13 Q. Do you have the question in mind, Ms. Reider? 14 A. Could you repeat it, please? 15 Q. Let me restate it. 16 Has there been in your investigation any direct 17 connection in the information that you have seen between DeCSS 18 and the decryption of the movies on the Internet? 19 A. Yes, there have been. 20 Q. What is that information? 21 A. I have seen sites where they suggest the use -- 22 MR. GARBUS: I assume I have a continuing objection. 23 THE COURT: Look, I think you should make your 24 objections, but if it's the same objection, if you would be so 25 kind as to say "the same objection," then I will simply know 668 1 it's the same thing, we don't have to pause, I will take it 2 subject to what I just indicated. 3 MR. GARBUS: I think I will say the same thing. 4 THE COURT: Okay. Same ruling. If it's something 5 new, let me know it's something new. 6 Go ahead, folks. 7 THE WITNESS: May I continue? 8 I have seen sites that have suggested the use of 9 DeCSS in order to then use the DivX codec against DVDs that 10 also offer DivX-made movies on their sites. 11 Q. Ms. Reider, given the wide proliferation of DeCSS on the 12 Internet, what help would the issuance of a permanent 13 injunction in this action do in your enforcement activity for 14 a number of companies? 15 MR. GARBUS: I object. 16 THE COURT: Well, I am going to take that answer as 17 well. Let it be added to my list of things that counsel 18 should consider with respect to the stuff of the Internet, 19 Rule 803(17) and how it applies in the electronic age. Rule 20 803(17). 21 Okay. Ms. Reider, I realize I'm stepping on your 22 lines constantly here this morning. Do you need the question 23 read back? 24 A. Yes, please. 25 (Record read) 669 1 MR. GARBUS: Your Honor, it seems to me, unless I'm 2 missing the point, that this sounds like a legal conclusion. 3 THE COURT: I don't think it's a legal conclusion. I 4 mean, that's kind of like asking somebody who lives downstream 5 of a damn that's about to be destroyed what effect a permanent 6 or preliminary injunction against tearing down the damn would 7 have on his property. The answer is a perfectly practical one 8 about preventing the river from flowing across the property. 9 I think that's what the question asks for. 10 MR. GARBUS: Okay. I have stated my position. 11 THE COURT: I understand. 12 MR. GARBUS: I'm not moved by the analogy between a 13 damn and a flowing river. 14 THE COURT: I know. I have given you lots of 15 analogies to think about in this case. 16 Go ahead, Mr. Cooper. 17 A. It would send a very strong message to both those that 18 would engage in illegal behavior and to law enforcement to 19 enforce it. It will make my job certainly, hopefully, easier 20 in terms of enforcing the right of our member companies for 21 the safety and security of their intellectual property. 22 Q. Let me ask you the same question with respect to the 23 effect, if the Court does not issue a permanent injunction, 24 what effect will that have on your activity to enforce the 25 interests of the member companies? 670 1 THE COURT: Believe me, that's not a useful question 2 either. There is another component that needs to be in that 3 question for it even to be relevant. 4 MR. GARBUS: Can we ask how upset she would be if you 5 deny the injunction? 6 THE COURT: We will have you testify about how upset 7 you will be if I grant it. 8 MR. COOPER: You mean if the Court concludes that 9 there is a violation here that determines not to issue the 10 injunction? 11 THE COURT: I don't know what the point of all this 12 is. Obviously the case isn't over, and if there is more 13 evidence that sheds light on the subject, I will certainly 14 consider it, but it seems to me that there is a reasonably 15 strong case to be made for the proposition that the barn is 16 unlocked and this horse is out. 17 Now, it seems to me also that what the MPAA wants is 18 a legal determination that unlocking this barn was illegal, 19 and so the next guy who considers unlocking another barn is 20 going to have something serious to think about. I suspect you 21 are also asking me to issue an injunction against the guy who 22 unlocked this barn not to unlock it again even though there is 23 no horse in it. So, you know, I don't know that this witness 24 has any light to shed on that subject. 25 MR. GARBUS: I must say I'm now finding your 671 1 analogies much more to my liking. 2 MR. COOPER: If I may, let me just say that our 3 position is obviously that the analogy that you referred to is 4 not apt, as Mr. Garbus has pointed out in his prior responses. 5 I recognize now is not the time to argue that issue. And 6 under the circumstances, if the witness's testimony about her 7 own experiential ability to deal with this issue and what aid 8 the Court's injunction might have in her enforcement 9 activities is not something that the Court is interested in 10 receiving at this time, then I would say that our -- 11 THE COURT: That was not my point. This whole little 12 discussion got started because you asked her what the effect 13 of my not issuing an injunction would be, and I assume that I 14 am going to hear a tale of woe, obviously just like I've heard 15 a tale of woe on the other side if I do issue the injunction. 16 But the critical ingredient is that the witness has 17 just told me that what this is all about is to send a message. 18 And there are various ways to send messages if indeed the 19 message is one you are entitled to have sent. And the 20 concerns I expressed yesterday and today on this subject have 21 addressed the form of any message to which you might be 22 entitled. That's what that was addressed to. 23 So, when you leave out of your question to the 24 witness about an injunction the fact that if you are entitled 25 to prevail, you might get relief short of an injunction, it 672 1 seems to me it's just a waste of everybody's time, with all 2 due respect, counsel. 3 You can ask the question with both components if you 4 want. 5 Q. Ms. Reider, in the event that the Court determines that 6 the plaintiffs are entitled to some relief, and the Court 7 determines that the relief would not include a permanent 8 injunction, would that have an impact on your ability to 9 enforce the interests of the member companies? 10 MR. GARBUS: Same objection. 11 THE COURT: Overruled. 12 A. Yes, it will have a huge impact. 13 Q. What is that impact? 14 A. There won't be any teeth, if you will, in it. We will 15 have no way to enforce that injunction. 16 Q. In the absence of an injunction? 17 A. In the absence. 18 THE COURT: If there is no injunction, there is 19 obviously no injunction to enforce, Ms. Reider. 20 Q. The question is what impact would the absence of the 21 injunction have in connection with your attempt to enforce the 22 member company's rights? 23 A. It will have a huge impact. 24 Q. In what way? 25 MR. GARBUS: I have a continuing objection. 673 1 THE COURT: Overruled. 2 A. We would have no ability to stop this. It would grant a 3 license to anyone in the world to do what they would with our 4 intellectual property, not just in this respect but in future 5 events. 6 THE COURT: I won't say what I was just about to say, 7 but, look, Ms. Reider, let's get down to the facts of this 8 case as opposed to the rhetoric. 9 If I understand it correctly, DeCSS is everywhere on 10 the Internet. I realize that's a hyperbolic statement, but 11 it's all over the play, right? 12 THE WITNESS: It's prevalent, yes. 13 THE COURT: Now, if I issue an injunction that says 14 that Mr. Corley can't put it on his website, how does that 15 affect DeCSS being everywhere else? 16 THE WITNESS: It affects it in that we can get 17 enforcement of other sites that are offering it, refusing to 18 take it down. 19 THE COURT: Because of what? 20 THE WITNESS: Because there is precedent. 21 THE COURT: Suppose the result were -- and I am not 22 saying it will be -- but just hypothetically suppose the 23 result were that the judgment recited that there was clearly a 24 controversy between the plaintiffs and this defendant as to 25 the legality under the DMCA of posting this utility, that the 674 1 controversy is persisting, that the posting of this utility 2 violates the Act, that you are entitled to a judicial 3 declaration of whether the conduct is lawful or not and the 4 court declares it is unlawful, the question of whether to 5 issue an injunction, invoke the discretionary power of the 6 court, courts have said for 300 years, at least that courts of 7 equity ought not to use the equitable power of injunction to 8 try to accomplish the impossible or to perform something which 9 is entirely futile, and therefore, in the exercise of 10 discretion, given the broad prevalence of this particular 11 utility, this time the court declines to issue the injunction 12 because it would do no practical good. 13 Now, it seems to me that perhaps there is an argument 14 in those circumstances that when you go to somebody and say, 15 look, it's on your website but it is in fact illegal, you've 16 got something to talk about, and it certainly sends a message 17 to the next guy with the next version of DeCSS that it's a 18 whole new ball game. Now, I don't understand your argument 19 given that set of hypotheses. 20 MR. GOLD: May I address the Court for a second, your 21 Honor? 22 THE COURT: No. I'm obviously going to hear 23 everybody on this at great length, all the lawyers, before 24 this is all over, but Ms. Reider is if not the chief, one of 25 the top enforcement people for the industry. She is offered 675 1 as a witness about what the practical significance of 2 different kinds of relief in this case might be, and before I 3 hear the lawyers' argument, I would like to hear what the 4 person in charge of performing the function has to say about 5 that. That's why you brought her here, as I understand it. 6 So, Ms. Reider, you know, I would like you to answer 7 that. One of the great things about a nonjury trial is the 8 judge gets to ask questions that are bothering him. 9 THE WITNESS: Well, your Honor, in our experience 10 thus far, trying to get prosecution at least on the criminal 11 side of things for failure to comply under existing law, it's 12 very difficult without being able to show damages or qualify 13 that damage, quantify it. If you just tell people, gee, you 14 shouldn't do that, but there is no penalty for having done 15 that -- 16 THE COURT: But, look, this is a criminal statute. 17 This is not a criminal case, but it's a criminal statute, it 18 says any person who violates Section 1201 or 1202 willfully 19 and for purposes of commercial advantage or private financial 20 gain can go to jail perhaps for as long as ten years. 21 Now, if the United States courts determine that 22 posting a utility like this is a crime and you hand a copy of 23 that decision to the person who is posting it, don't you think 24 there is some evidence maybe that if it doesn't come down off 25 the website it is a willful violation? 676 1 MR. COOPER: Your Honor, is that a question posed to 2 Ms. Reider from a factual standpoint? 3 THE COURT: Yes. She is making an argument that 4 without an injunction there is no effective remedy, and I want 5 to hear why. 6 THE WITNESS: Do you think I could get an AUSA or a 7 DA to take that case and enforce it? 8 THE COURT: It beats me. I mean, they haven't 9 indicted anybody in this case as far as I know. 10 Okay. Mr. Cooper, go ahead. 11 MR. COOPER: Nothing further of this witness, your 12 Honor. 13 THE COURT: Thank you. Mr. Garbus? 14 MR. GARBUS: Just one question. 15 CROSS-EXAMINATION 16 BY MR. GARBUS: 17 Q. Did you say you hadn't seen a movie on the Internet until 18 this year? 19 A. Can you repeat your question? 20 Q. When for the first time did you see a movie on the 21 Internet? 22 MR. COOPER: Objection, your Honor. It misstates the 23 testimony. 24 THE COURT: Well, it didn't purport to state any 25 testimony, so it can't misstate it. 677 1 A. Can you clarify, Mr. Garbus? 2 Q. When for the first time did you see a movie on the 3 Internet? 4 A. What type of movie, Mr. Garbus? I'm not clear on what 5 you're asking. 6 THE COURT: The question is very ambiguous. 7 Q. Any kind of movie on the Internet. 8 THE COURT: What do you mean, watched the movie? 9 MR. GARBUS: Yes. 10 A. Any kind of movie? 11 Q. Yes. 12 A. A couple of years ago. 13 Q. In 1998. 14 A. That's correct. 15 Q. And since 1998 how many movies did you watch on the 16 Internet? 17 A. I don't know. 18 Q. Were these movies that you bought to play on the Internet? 19 A. Can you play a movie on the Internet, Mr. Garbus? 20 Q. On your personal computer. 21 A. No, this is in the capacity of my job. 22 Q. Now, did you at any time learn -- let me go back to the 23 beginning of the process. As I understand it, you were given 24 at some point in time these LiViD documents which we have 25 referred to as Plaintiffs' Exhibit 9. 678 1 A. I need to see the documents that you are referring to. 2 MR. COOPER: Your Honor, I believe this is beyond the 3 scope of the direct. 4 THE COURT: Let me see where it's going. 5 Q. Do you remember when you looked at the LiViD group of 6 documents -- withdrawn. 7 At some point in time did either Mr. Jacobsen or 8 Litvak give you a group of documents which were downloaded 9 from the LiViD site? 10 A. No, they did not. 11 Q. Did you at any time go on the net to find any LiViD 12 documents? 13 A. Yes, I did. 14 Q. When was that? 15 A. As I recall, October or November of '99. 16 Q. And at whose direction was that done? 17 A. Under my own direction. I'm the supervisor of antipiracy. 18 Q. By the way, are you a lawyer? 19 A. No, I'm not. 20 Q. Now, what did you do after you downloaded those documents? 21 A. I reviewed them and turned them over to legal. 22 Q. And who was that? 23 A. Our legal department, Mark Litvak. 24 Q. To the best of your memory, was Mr. Goldstein or 2600.com 25 mentioned in any of those LiViD documents? 679 1 MR. COOPER: Objection, your Honor. Hearsay and 2 plainly beyond the scope of direct. 3 THE COURT: The hearsay objection is just wrong. Why 4 isn't it beyond the scope, Mr. Garbus? 5 MR. GARBUS: I'm trying to find out what she did. 6 She winds up saying she has a lot of information. I'm trying 7 to find out the basis for that information. 8 THE COURT: Sustained. 9 A. Can you repeat question, please? 10 THE COURT: I sustained the objection. 11 THE WITNESS: Sorry. 12 Q. Do you know what a DOD Speed Ripper is? 13 A. Yes, I do. 14 Q. Let me show you a document UP. 15 MR. COOPER: Your Honor, we object to the 16 introduction of this document. 17 THE COURT: It hasn't been offered yet. 18 MR. COOPER: It's attorney/client privilege, your 19 Honor. 20 THE COURT: Well, somebody should give me a copy of 21 the document. 22 MR. GARBUS: This is one of the -- 23 THE COURT: Just give me a minute, please. 24 (Pause) 25 THE COURT: Pose your question and I will ask the 680 1 witness not to answer until I have had an opportunity to hear 2 an objection, and please pose the question in a way that 3 doesn't disclose the content of the document, Mr. Garbus. 4 BY MR. GARBUS: 5 Q. Did you learn at some time in December of the existence of 6 a utility called DOD Speed Ripper? 7 THE COURT: Answer the question, please. 8 A. I don't recall. 9 Q. Let me show you this document and see if it refreshes your 10 recollection. 11 THE COURT: Go ahead. 12 MR. COOPER: Your Honor, are you ruling on the 13 privilege issue? 14 THE COURT: So far there is nothing that, in my view, 15 implicates a privilege. She is being shown a document for the 16 purpose of refreshing her recollection as to her state of mind 17 in December. 18 MR. COOPER: It's the use of the document which is an 19 attorney/client communication, to which we object. 20 THE COURT: I understand. You said that in the first 21 place. 22 MR. COOPER: I understand that. The question is 23 whether they are entitled to use a document which is an 24 attorney/client communication. 25 THE COURT: I understand your point. To that extent, 681 1 I'm offering your point. 2 MR. COOPER: Thank you, your Honor. 3 THE COURT: What's the question, Mr. Garbus? 4 Q. Does it refresh your recollection that you were told back 5 in December of 1999 about the DOD Speed Ripper? 6 A. No, it does not. 7 Q. Did you ever see that document before? 8 A. I don't recall it. 9 Q. Do you see your name on it? 10 A. I do see me copied, but the date of the missive was during 11 a time I was not in the office. 12 Q. Did you ever see that document at any time? 13 A. I don't recall. 14 Q. When for the first time, if ever, did you hear the term 15 "DOD Speed Ripper"? 16 A. I don't recall the exact date. 17 Q. Was it in 1999? 18 A. I don't recall the date, sir. 19 Q. Did you ever go to a site to see what a DOD Speed Ripper 20 was? 21 A. I have looked at it, yes. 22 Q. And tell me when you went to that site for the first time. 23 A. I don't recall the date. 24 Q. Was it in December of 1999? 25 A. I don't recall the date, sir. 682 1 Q. Any time in the last eight month? 2 A. I don't recall the date, sir. 3 Q. Now, you said before that you worked together with the 4 F.B.I., the U.S. Customs and who else? 5 A. That I worked for? 6 Q. The MPAA works together in its antipiracy investigations, 7 you said before, with the F.B.I., U.S. Customs and who else? 8 A. Secret Service. 9 Q. Has anybody ever shown you a document that indicates one 10 particular film was taken off the Internet that had been 11 deencrypted through DeCSS? 12 THE COURT: Didn't you have a stipulation the object 13 of which was to avoid this litany with every witness? 14 MR. GARBUS: Well, I think we are trying now to get 15 into what her investigation was. She is coming to certain 16 conclusions, and you have permitted, subject to the 17 qualifications that you have made, her testifying about 18 information. I am prepared to accept that when she speculates 19 that the stuff that's on the Internet, whatever it is that she 20 sees, that she doesn't know the source of anything that's on 21 the Internet, namely, whether it comes from DeCSS, DOD Ripper. 22 THE COURT: So I understand your point. Let's make 23 this simple. You're saying, Ms. Reider, that you have seen 24 various films, decrypted films offered on the Internet, right? 25 THE WITNESS: That's correct. 683 1 THE COURT: Do you have any way of saying whether any 2 particular one of the ones you have seen offered was decrypted 3 by DeCSS as opposed to some other technology apart from 4 whatever inference you draw from the timing? 5 THE WITNESS: No, my investigations are still 6 ongoing. 7 THE COURT: Okay. You have your "no," Mr. Garbus. 8 Let's go. 9 MR. GARBUS: Thank you. You asked the question 10 better than I could have. 11 Q. Now, you also indicated that there were various -- did you 12 ever look to see whether or not 2600.com sells any pirated 13 copies of DVDs? 14 THE COURT: I take it there is no such contention in 15 this case, right, Mr. Cooper? 16 MR. COOPER: That's correct, your Honor. 17 THE COURT: Okay. Next. 18 Q. And there is no contention that they barter, sell it or 19 point to anybody who does sell it? 20 THE COURT: Mr. Cooper? 21 MR. COOPER: If the "it" is decrypted DVDs, yes, your 22 Honor. 23 THE COURT: Okay. 24 Q. Do you know what a Speed Ripper is, by the way? 25 A. I know what it alleges to be. 684 1 Q. What does it allege to be? 2 A. It alleges to decrypt DVDs. It's a DeCSS clone. 3 Q. DeCSS clone? 4 A. Um-hum. 5 Q. Do you know if DOD Speed Ripper was available before 6 DeCSS? 7 A. Not to my knowledge. 8 Q. What is the basis of that? When for the first time did 9 you know that Speed Ripper was available? 10 MR. COOPER: Asked and answered, your Honor. 11 THE COURT: Overruled. 12 A. I don't recall the date. 13 THE COURT: Okay. We will take our morning break. 14 15 minutes. 15 (Recess) 16 THE COURT: You may proceed. 17 BY MR. GARBUS: 18 Q. You said that, as I understand it, once you learned -- 19 when did you learn of DeCSS for the first time? 20 A. Early to mid-October of '99. 21 Q. What did you then do after you learned it? 22 A. I pursued an investigation and downloaded it and then 23 notified our legal team. 24 Q. Now, have you ever used a DoDs Ripper? 25 A. Not all the way through. 685 1 Q. Tell me what you have done with it. 2 A. I have downloaded it and I have extracted a single VOB 3 file with it. 4 Q. And have you ever used a DOD Ripper? 5 MR. COOPER: Ambiguous. 6 THE COURT: What is the ambiguity? 7 MR. COOPER: I think it's the same question he asked 8 before. 9 THE COURT: Is there a different -- 10 Q. Do you know of anything separately called the DOD Ripper 11 rather than a DoDs Ripper? 12 A. No, I don't. 13 Q. How about Power Ripper? 14 A. I have heard of it. 15 Q. Have you ever utilized it? 16 A. No, I have not. 17 Q. Have you ever heard of DOD Speed Ripper? 18 A. I was under the impression that is what we were speaking 19 about. 20 Q. In other words, to you, Power Ripper and DOD Speed Ripper 21 are the same thing? 22 A. No, your earlier question regarding DoDs Ripper was my -- 23 Q. Excuse me a minute. Go ahead. 24 A. It was my impression we were discussing the DOD Speed 25 Ripper. 686 1 Q. Have you ever tried css-auth? 2 A. Yes, I have. 3 Q. And what have you done with it? 4 A. Just looked at the code. 5 Q. Have you ever tried css-cat? 6 A. Only looked at the code. 7 Q. Have you ever seen the end product, in other words, a 8 movie that is made, that has been started with the process of 9 a DOD Ripper, Power Ripper, Speed Ripper, css-auth or css-cat? 10 A. You want me to break those down? 11 Q. Sure. 12 A. I have seen the end product of movies that have been 13 decrypted. 14 Q. And have you ever issued a report, have you ever compiled 15 a report about any of your work with respect to these 16 utilities and the movies that have then been downloaded? 17 A. Not that I recall. 18 Q. With respect to your investigation of DeCSS, have you ever 19 prepared a report of that investigation? 20 A. I'm sorry. Can you repeat the question? 21 Q. With respect to any work that you did on DeCSS, Did you 22 ever prepare a report for the MPAA in any investigation you 23 did? 24 A. Not that I recall. 25 Q. Did anyone at the F.B.I. or U.S. Customs or the Secret 687 1 Service or the MPAA ever ask you to prepare any report about 2 any investigation you made concerning DeCSS? 3 A. I wouldn't be at liberty to tell you if any of those 4 federal agencies requested such a report. 5 MR. GARBUS: Your Honor, I would like to know if this 6 woman has ever prepared a report relating to DeCSS. 7 THE COURT: You can answer yes or no at least. 8 THE WITNESS: Not that I recall. 9 MR. GARBUS: We got past that pretty quickly. 10 Q. Now, Ms. Reider, you've talked about you being the chief 11 investigator at the MPAA to determine the piracy consequences 12 of DeCSS, is that right? 13 A. That is not my only function. 14 Q. Is that one of your functions? 15 A. That's one of many, yes. 16 Q. And you're telling me that you never prepared a report for 17 the MPAA concerning your investigation of DeCSS, is that 18 right? 19 A. Not that I recall. 20 Q. When you say not that you recall, just sit back for a 21 moment, take your time. Did you prepare such a report or did 22 you not? 23 MR. COOPER: Argumentative. 24 THE COURT: Overruled. 25 A. Not that I recall. 688 1 Q. Is there any document that I might conceivably show you 2 that would help you remember whether you prepared such a 3 report? 4 A. Well, if I knew that -- I don't know what you're asking. 5 Q. Is there any document that I could show you, or that 6 anybody in the world could show you, that could refresh your 7 recollection as to whether or not you ever prepared a report 8 for the MPAA concerning DeCSS? 9 MR. COOPER: Argumentative. Calls for speculation. 10 THE COURT: I'm going to allow it one more time. You 11 would think you were trying a medical malpractice case. Once 12 more. 13 A. I don't know. 14 Q. Did you ever produce a memo -- forget about the word 15 report -- for the MPAA or any other governmental agency 16 concerning DeCSS, the proliferation of it, the use of it, or 17 the consequences of the films that it would produce after that 18 DeCSS application was DivX'd? 19 A. I don't recall. 20 THE COURT: Mr. Garbus, you took her deposition, 21 right? 22 MR. GARBUS: Yes. 23 THE COURT: And I know that at least one whole box of 24 documents from her file was given to me for in camera 25 inspection on a claim of privilege that were subsequently 689 1 turned over to you. 2 Now, this is not the time to be either doing 3 discovery or whatever else this is. If you have a document, 4 let's go to it. If you don't have a document, ask something 5 else. 6 MR. GARBUS: I understand -- 7 Shall we approach the bench? 8 THE COURT: No. 9 MR. GARBUS: -- that there is no such document, that 10 she never prepared a report for the MPAA. Now, we have been 11 through a series of discussions where we have asked them to 12 produce lists of documents that we were promised that we have 13 never gotten. I can go through that now, but I don't think 14 it's an appropriate time. 15 THE COURT: Neither do I. So, you're complaining 16 they didn't give you the document that she says doesn't exist. 17 Is that the net of the complaint? 18 MR. GARBUS: No. Let me just go on. 19 Q. I'd like to learn something about what your investigation 20 consisted of. After you gave the Linux document to someone at 21 the MPAA in October or November, what did you then do in the 22 course of your investigation? 23 A. I'm sorry. Which Linux documents are you referring to? 24 Q. Did you testify that you downloaded some documents in 25 October, November and December from the LiViD group? 690 1 A. I don't know. They would have to read it back to me. 2 Q. Did you download -- let's start at the beginning. Did you 3 at any time download any documents from the LiViD group in 4 1999? 5 MR. COOPER: Your Honor, Mr. Garbus already elicited 6 testimony about what the witness downloaded and I think you 7 then sustained the objection with respect to this questioning 8 regarding the LiViD group and the documents downloaded with 9 respect to it. 10 MR. GARBUS: Your Honor, I would like to get into 11 what her investigation consisted of. She has come in here 12 allegedly as a witness to give information about that 13 investigation. 14 THE COURT: One question at a time. You already 15 asked her -- you first started off from the mistaken premise 16 that Mr. Jacobsen or Litvak gave her documents from the LiViD 17 site. She said, no, that hadn't happened. You then asked her 18 whether she went onto the site, and she testified she went 19 onto the net and found LiViD documents in October or November, 20 that she downloaded, reviewed them and turned them over to 21 legal, specifically to Mark Litvak. Now, I don't know why we 22 have to do it all over again. 23 MR. GARBUS: Because she said she didn't remember 24 that. 25 THE COURT: No, she didn't. 691 1 MR. GARBUS: Let me go on, if I can. 2 Q. After you turned these documents over to Mr. Litvak, then 3 what happened? 4 MR. COOPER: Ambiguous. 5 THE COURT: Overruled. 6 A. Then what happened in respect to what? 7 Q. Your investigation. Everything is directed now towards 8 your investigation. What did do you with respect to your 9 investigation after you turned these documents over to 10 Mr. Litvak? 11 A. I continued to look for evidence of piracy. 12 Q. Tell me what you did. 13 A. In respect to what, sir? 14 Q. DeCSS. 15 A. I continued to look for sites offering DeCSS and to 16 request the issuance of cease and desist letters. 17 Q. And were you also looking for sites relevant to DOD Ripper 18 or Power Ripper or Speed Ripper? 19 A. Our investigations are ongoing. 20 Q. Were you, at that time that you were looking for DeCSS 21 sites, also looking at sites for DOD Speed Ripper, Power 22 Ripper -- and Power Ripper? Excuse me. 23 A. I don't recall a time frame. 24 Q. When did you start looking at DeCSS sites? 25 A. Early to mid-October of '99. 692 1 Q. And can you tell me to the best of your recollection 2 whether that was before or after you were looking at sites for 3 DOD Ripper, if in fact you were? 4 MR. COOPER: Objection, your Honor. I think it has 5 been asked and answered repeatedly and it's plainly beyond the 6 scope of direct. 7 THE COURT: It's certainly sustained as to form. 8 Let's start with that. Try another question. 9 Q. After you started looking at the DeCSS site, did you make 10 any notes of any site you saw? 11 A. Can you clarify "make notes"? 12 Q. Did you write anything down on a piece of paper? 13 A. I imagine we downloaded those sites that we found. 14 Q. And do you recall now which sites that you found? 15 A. Not specifically. 16 THE COURT: Isn't that precisely the carton of 17 document that was submitted to my chambers that was then 18 turned over to you, Mr. Garbus, like maybe 5,000 pages of it? 19 MR. GARBUS: I don't know if that was all the 20 documents. What Mr. Schumann testified was that he had gotten 21 a part of the documents. I'm trying to find out now what the 22 documents were that she downloaded. 23 Can we approach the bench? 24 THE COURT: No. 25 MR. GARBUS: Let me tell you where I would like to 693 1 go, and if there is an issue about it, I just don't want to go 2 there. 3 I think I'm entitled to know -- she is the only 4 witness for the MPAA thus far produced. I understand she is 5 their last witness. We have been told about this awesome 6 threat of DeCSS, and I would like to find out what the MPA has 7 done since they first learned about it, and I would like to 8 find out during the course of this investigation or this 9 discussion with her what she has done, because she is the head 10 of piracy, with respect to the other utilities that allegedly 11 cause piracy, and whether or not she or anyone can tell 12 basically, if something is on the screen, which utility it 13 comes from -- 14 THE COURT: You already got that stipulation, didn't 15 you, early this morning? 16 MR. GARBUS: The last part I have. 17 THE COURT: Right. 18 MR. GARBUS: Now I would like to go to the 19 investigation. What I have said before is if they were 20 serious at all about DeCSS, that there were many, many ways 21 that they could have learned in October, November exactly who 22 had DeCSS, what was being done with respect to it, and I think 23 what they would have concluded, at least I would have 24 concluded, is that it was being used for the Linux machine and 25 that these other utilities may be appropriate "illegal copying 694 1 or piracy tools," but DeCSS, for precisely the reasons that 2 Mr. Shamos testified, is not. 3 Now, whether or not your Honor feels that makes DeCSS 4 still prohibitable by the statute is something for an 5 appropriate time, but it seems to me I'm entitled to go 6 through that with this witness. 7 THE COURT: What is on the table are questions 8 nit-picking about documents that you know full well were 9 produced to you, piles of them. 10 MR. GARBUS: Let me tell you some of the documents we 11 did not get. Shall we go through that now? 12 THE COURT: Mr. Garbus, no. 13 MR. GARBUS: May I ask my question? 14 THE COURT: You can ask a new question. 15 MR. GARBUS: Thank you. 16 Q. Now, when you say you were monitoring sites for DeCSS in 17 November of '99 -- 18 THE COURT: By the way, if we do get to that subject, 19 I'm still waiting for the affidavit about your client's hard 20 drive. Just keep that in mind. Let's go on. 21 MR. GARBUS: May I have the last question asked 22 repeated to me? 23 (Record read) 24 Q. Did you ever tell anybody from October until today that 25 you had ever seen a pirated copy of a digital movie, a 695 1 specific movie? 2 A. Yes. 3 Q. And did you ever tell anybody, or write a report, or 4 furnish a document indicating that it related in any way to 5 DeCSS? 6 A. As I stated before, I don't recall any report on DeCSS. 7 Q. Putting aside report, any e-mails? 8 A. I don't recall specifics. 9 Q. What has been your training as an investigator? You 10 worked for the F.B.I. for a period of time? 11 A. That's correct. 12 Q. Were you trained there as an investigator? 13 A. That's correct. 14 Q. And did the F.B.I. have some practice with respect to 15 making reports? 16 A. Yes, they do. 17 Q. Tell me what that practice was. 18 MR. COOPER: Relevancy, your Honor. 19 THE COURT: Sustained. 20 Q. Did the training include -- 21 THE COURT: Sustained. 22 Q. You indicated that -- let me ask this. When you say you 23 are monitoring websites, did you ever call any website in 24 order to determine the name, address or identification of any 25 individual who had been allegedly selling movies on any of 696 1 these file sharing sites? 2 A. Excuse me. You'll need to clarify your question. You 3 have asked about websites and FSUs all in the same sentence. 4 Q. Did you ever call anybody as part of your investigation, 5 or to your knowledge, if it's not confidential, the F.B.I., 6 Secret Service, U.S. Customs? 7 THE COURT: The question is lost with the digression. 8 Start the question again. 9 Q. Did you ever call anybody at anybody website that had file 10 sharing to determine where the films came from? 11 A. Do you mean did I telephone anyone? 12 Q. Yes. 13 A. Not personally. 14 Q. Did you ever make any investigation with respect to any of 15 those file sharing sites as to where the films came from? 16 A. Yes, we routinely investigate. 17 Q. And what did that investigation indicate? 18 MR. COOPER: Objection, your Honor. It's not only 19 confidential, ongoing investigations. Much of the information 20 she has on this subject is privileged and it is plainly beyond 21 the scope. 22 THE COURT: Well, you better come to sidebar. Mr. 23 Garbus and Mr. Cooper. 24 (At the sidebar) 25 THE COURT: Let's deal with scope first. Mr. Garbus, 697 1 why is it within the scope? 2 MR. GARBUS: My position is that they know that DeCSS 3 is not a pirating tool. My information. And I believe that 4 they may have made an attempt to determine that and may have 5 concluded what I have just said is so. Whether or not that 6 goes to your ultimate question about whether or not the DeCSS 7 is an appropriate or inappropriate circumvention is something 8 else. But it seems to me what I am entitled to know is this. 9 There are ten different utilities that with respect 10 to, let's say, the nine others, as I understand it, they did 11 no investigation, and that basically what you are dealing with 12 is an attempt to take a product away from, let's say, the 13 Linux source group, and that I think that what the MPA was 14 doing was basically protecting the licensing arrangement and 15 that this entire investigation had little and nothing to do 16 with piracy. And I think they are aware of the fact that the 17 stuff that's up on the Internet is not DeCSS material. Not 18 only the negative of it, but that they know that it's not. 19 THE COURT: So that's why it's within the scope of 20 the direct, is that right? 21 MR. GARBUS: If you want, I will make her my witness 22 at an appropriate time, keep her in court and I'll make her my 23 witness. 24 MR. COOPER: Your Honor, my principal concern -- I 25 don't think it's necessary -- 698 1 MR. GARBUS: I don't think it's within the scope of 2 the direct based on the conclusions that they drew. She is 3 the chief investigator. They put her on the stand. She comes 4 to assert conclusions. I think the facts contradict her 5 conclusions. 6 THE COURT: What conclusion? 7 MR. GARBUS: Well, I must tell you every one of the 8 conclusions is that DeCSS is a contributing factor or is one 9 of the reasons they are very concerned. One of the critical 10 parts of her testimony, as I understand it, is the spiking or 11 the enormous increase in material on the net since DeCSS first 12 comes about. 13 THE COURT: Um-hum. 14 MR. GARBUS: And I think the truth of it is you have 15 nine other utilities that lead to that spiking, and the one 16 utility that does not is DeCSS because it has a different 17 function. 18 THE COURT: You are certainly entitled to ask her 19 about the question of whether these other utilities could have 20 led to the spike. There is no question about that. 21 MR. GARBUS: Okay. And I want to know. 22 THE COURT: But I don't think that's what you have 23 been asking her. 24 MR. GARBUS: I have been trying to get the background 25 for it. I have been trying to find out her investigation. If 699 1 you are asking me to ask a conclusory question, I'm prepared 2 to do that. I wanted to know what her investigation 3 indicated. It seems to me I'm entitled to do that. 4 THE COURT: Mr. Cooper? 5 MR. COOPER: Our concern, your Honor, is that the 6 question that I think Mr. Garbus last asked her has the 7 potential for eliciting information regarding the specifics of 8 investigations of other potential actions and ongoing 9 investigations in cooperation with law enforcement. 10 I will say, for instance, that the MPAA member 11 companies are among the plaintiffs in an action filed today 12 against ScourNet, and to the extent that Mr. Garbus's question 13 is potentially going to elicit privileged information 14 regarding the investigation leading up to that action, I 15 believe we are entitled to protection from having to answer 16 that question under a variety of privileges. 17 I don't think it's necessary for Mr. Garbus's right 18 to question the witness on any relevant information she might 19 have, but I am concerned that it's privileged information and 20 information regarding ongoing investigations not be divulged 21 in connection with such a response. 22 MR. GARBUS: I am here to represent a client. My 23 understanding is that, of all of the utilities, the one that 24 is not being used for piracy is DeCSS because of the amount of 25 time it takes to do a variety of things. What is being used 700 1 for piracy are these other utilities, that the investigation 2 into DeCSS is solely related to the fact that there is a 3 competitive machine out there called Linux. That's what I'm 4 trying to get to. 5 If we can do all that with a stipulation, if we can 6 do all that -- not the last part about Linux -- but if we can 7 do it with a stipulation, I will try to craft one and I would 8 try and ask it in one question, but I was trying to get into 9 the investigation concerning it. 10 MR. COOPER: I don't even know how to respond to 11 that. The only information we have on any of those assertions 12 are from Mr. Garbus's mouth. This witness isn't able to 13 testify to that factual information because it's simply 14 nonexistent. 15 MR. GARBUS: She is the chief investigator. She may 16 contradict everything I said. She may say everything I just 17 said is wrong. 18 THE COURT: Look, Mr. Garbus is entitled to 19 cross-examine her on the subject of whether this spike in the 20 apparent availability of pirated movies on the Internet after 21 October or November is attributable to the appearance of 22 DeCSS. I think there are other ways of doing it. 23 MR. GARBUS: I could ask her one question. 24 THE COURT: We will take it one question at a time. 25 There are other ways of doing it. Let's try. 701 1 MR. GARBUS: Judge, you are an experienced trial 2 lawyer. If you can think of a better way for me to formulate 3 a question so we don't have a problem, I will do it. 4 THE COURT: I'm not getting your rate anymore to 5 formulate the questions, Mr. Garbus. 6 (In open court) 7 MR. GARBUS: You may be exagerating. 8 THE COURT: I don't think so. 9 MR. GARBUS: May I have the last question, please? 10 (Record read) 11 THE COURT: I am going to sustain the objection to 12 that question, because it's much too broad in the 13 circumstances, and it does implicate privileges. It 14 implicates legitimate confidentiality concerns beyond 15 privileges, but there is some appropriate area here that I 16 have indicated at the sidebar, and counsel can pursue it. 17 New question. 18 BY MR. GARBUS: 19 Q. Have you ever seen any documents that indicate whether or 20 not all of the films that are on these file sharing programs 21 do or do not come from Power Ripper? 22 A. No. 23 Q. Have you ever seen any documents -- 24 MR. GARBUS: Judge, if you have a better way of 25 formulating the question, I will take it. 702 1 THE COURT: As I said to you, I'm not getting paid 2 the rate you are getting for formulating questions. Once upon 3 a time I was, but not anymore. That's your job. 4 MR. GARBUS: Did we get an answer? 5 THE COURT: There is not a question. 6 Q. Can you tell by looking at any of the file sharing 7 programs what percentage of the films that are described on 8 those file sharing programs come from any particular utility? 9 A. You want to know what compression was used on them or -- 10 THE COURT: Let's try to make this simpler. I can't 11 resist, Mr. Garbus. I'm sorry. Think of it as pro bono. 12 I understood from a previous witness that when you 13 see a film listed on a website or an FSU that has been 14 decrypted and is available for sale or exchange, that you 15 can't tell from the listing itself what mode of decrypting the 16 film was used. Is that consistent with your understanding? 17 THE WITNESS: Yes, it is. 18 THE COURT: All right. Are there other ways that you 19 can ascertain by what means a film offered on the Internet or 20 an FSU for exchange or sale has been decrypted? 21 THE WITNESS: I don't know. 22 THE COURT: Back to you, Mr. Garbus. 23 Q. Who would know at the MPAA, if anybody? 24 A. I don't know. 25 Q. Do you know who Brad Hunt is? 703 1 A. Yes, I do. 2 Q. What is his job? 3 A. He is our chief technology officer. 4 Q. Have you ever had any discussions with him about the two 5 questions that the judge has asked you? 6 A. No, I have not. 7 Q. And who is Rick Hirsch? 8 A. He is the head of antipiracy for the IDSA. 9 Q. To your knowledge, does anyone at the MPAA have the 10 answers to the two questions that the judge posed? 11 A. I don't know. 12 Q. To your knowledge, does anybody in law enforcement have 13 the answers to the two questions the judge has posed? 14 A. I don't know. 15 THE COURT: Has anybody on the Cincinnati Reds? Come 16 on. Don't you think there is an easier way to do this, Mr. 17 Garbus? 18 MR. GARBUS: You tell me. Your questions are not 19 objectionable. Mine can be. Go ahead if your Honor wants to 20 formulate the question. 21 THE COURT: Mr. Sims has offered. 22 MR. SIMS: I will pose the question if you want, your 23 Honor. 24 THE COURT: It's Mr. Garbus's examination. 25 Q. Now, we have heard about a surge in Internet piracy, is 704 1 that right, over the last six months? 2 A. In respect to decrypted DVDs. 3 Q. Right. Can you tell whether or not that surge comes as a 4 result of the utility Power Ripper or DeCSS or DOD Ripper or 5 any other utility? 6 A. Not definitively. 7 Q. Has anyone at the MPAA ever made any investigation to 8 determine what the utility is or was being used to create that 9 surge? 10 A. I don't know. 11 Q. Have you ever made any investigation to determine which 12 utility leads to that surge? 13 A. As I stated before, it's an ongoing investigation. 14 THE COURT: Maybe we can get at it a little bit 15 better this way. If you were to download the file of a 16 decrypted movie obtained over the Internet or through an FSU, 17 are you aware of any means by which you can examine the code 18 and the data file of the download and determine through that 19 examination how the movie was decrypted? 20 THE WITNESS: I don't have that answer yet. 21 THE COURT: You don't have it yet. 22 THE