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TUCoPS :: Cyber Law :: 0606-v~1.txt

MPAA vs. 2600 - Deposition of Jack Valenti, June 8, 2000




                                                                1


       1              UNITED STATES DISTRICT COURT

       2             SOUTHERN DISTRICT OF NEW YORK

       3

       4   UNIVERSAL CITY STUDIOS, INC.,    :
           PARAMOUNT PICTURES CORPORATION,  :
       5   METRO-GOLDWYN-MAYER STUDIOS INC.,:
           TRISTAR PICTURES, INC., COLUMBIA :
       6   PICTURES INDUSTRIES, INC., TIME  :
           WARNER ENTERTAINMENT, CO., L.P.,
       7   DISNEY ENTERPRISES, INC., and    :
           TWENTIETH CENTURY FOX FILM       :
       8   CORPORATION,                     :
                                            :
       9                     Plaintiffs     : Civil Action Number
                                            : 0277
      10             v.                     :
                                            :
      11   ERIC CORLEY a/k/a EMMANUEL       :
           GOLDSTEIN and 2600 ENTERPRISES   :
      12                                    :
                             Defendants     :
      13   - - - - - - - - - - - - - - - - -X

      14

      15               DEPOSITION OF JACK VALENTI

      16

      17

      18                             Washington, D.C.

      19                             Tuesday, June 6, 2000

      20

      21

      22   Reported by:

      23        Roxanne Easterwood, Court Reporter

      24

      25


                                                                2


       1             Deposition of Jack Valenti, called

       2   for examination pursuant to notice of deposition,

       3   on Tuesday, June 6, 2000, in Washington, D.C. at the

       4   law offices of Proskauer Rose, LLP at 8:44 a.m.

       5   before ROXANNE M. EASTERWOOD, a Notary Public within and

       6   for the District of Columbia, when were present

       7   on behalf of the respective parties:

       8

       9

      10                  MARTIN GARBUS, ESQ.

      11                 EDWARD HERNSTADT, ESQ.

      12           Frankfurt Garbus Klein & Selz, PC

      13                   488 Madison Avenue

      14                   New York, NY 10022

      15                     (21) 826-5522

      16                On behalf of Defendants

      17

      18

      19

      20

      21                                      --continued--

      22

      23

      24

      25


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       1   APPEARANCES (CONTINUED):

       2

       3                 SCOTT P. COOPER, ESQ.

       4                  Proskauer Rose, LLP

       5           2049 Century Park East, Suite 3200

       6               Los Angeles, CA 90067-3206

       7                     (310) 284-5669

       8                On behalf of Plaintiffs

       9

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25


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       1        MR. HERNDSTADT:  My name is Raymond R. Brown.

       2   I'll be operating the video equipment for this

       3   deposition.  My address is 1717 Corcoran Street,

       4   Washington, D.C.  I'm employed by Ray Brown &

       5   Associates and representing Interim Court

       6   Reporting.

       7             This deposition is being taken pursuant

       8   to notice is case number 0277, entitled Universal

       9   City Studies, Incorporated, et al., versus Corley

      10   before the U.S. District Court, Southern District

      11   of New York.

      12             The witness today is Mr. Jack Valenti.

      13   Today is June 6th, 2000.  We're at the offices of

      14   Proskauer Rose, LLP in Washington, D.C.  Time is

      15   indicated electronically on the lower portion of

      16   the television.  Currently 8:45:30 seconds.

      17             At this time counsel will identify

      18   themselves and indicate which parties they

      19   represent.  The court reporter will then identify

      20   herself, and I will administer the oath to the

      21   witness.

      22        MR. COOPER:  Good morning.  I'm Scott Cooper

      23   of Proskauer Rose, LLP for the Plaintiffs and

      24   representing Mr. Valenti in this deposition.  Mark

      25   you want to identify yourself?


                                                                5


       1        MR. LITVAK:  Mark Litvak, counsel for the

       2   Motion Picture Association of America.

       3        MR. HERNDSTADT:  Edward Hernstadt.

       4   Frankfurt, Garbus, Klein & Selz for defendants.

       5        MR. GARBUS:  Martin Garbus, Frankfurt,

       6   Garbus, Klein & Selz the Defendant.

       7        MR. COOPER:  Let me note for the record that

       8   this deposition was arranged for the convenience

       9   of Mr. Garbus and Mr. Hernstadt, and at their

      10   express request, to commence this morning at 8:00

      11   a.m. here in Washington.  We've gone to a lot of

      12   trouble to accommodate them and be here.  We are

      13   now starting at 8:45.  The court reporter they

      14   arranged for just arrived.  They themselves didn't

      15   arrive until 8:30.

      16             I also note for the record that

      17   Mr. Valenti is here at considerable personal

      18   inconvenience.  He is not feeling well this

      19   morning and has some kind of bug.  He is here to

      20   proceed with this deposition notwithstanding that,

      21   and my understanding is we're going to go until

      22   noon so that Mr. Garbus and Mr. Hernstadt can fly

      23   back to New York.

      24        MR. GARBUS:  Perhaps we can stay for an hour

      25   later if Mr. Valenti is's up to it.  We'll let


                                                                6


       1   Mr. Valenti decide that.

       2             With respect to this morning, we took a

       3   6:30 flight down, which should have gotten us here

       4   in plenty of time.  The weather held us down in La

       5   Guardia, which is why we're half an hour late.

       6        VIDEOGRAPHER:  Madam Reporter, would you

       7   identify yourself?  I'll swear the witness.

       8        REPORTER:  Roxanne Easterwood with Interim

       9   Reporting.

      10                 P R O C E E D I N G S

      11   Whereupon,

      12                      JACK VALENTI

      13   was called as a witness and, having first been duly sworn,

      14   was examined and testified as follows:

      15                      EXAMINATION

      16        VIDEOGRAPHER:  We're on the record,

      17   gentlemen.

      18   BY MR. GARBUS:

      19        Q    Mr. Valenti, who are the members of the

      20   DVD CCA?

      21        A    I don't know.

      22        Q    Do you know who the DVD CCA is?

      23        A    No.

      24        Q    Do you know who issues the licenses to

      25   the hardware manufacturers that play DVDs?


                                                                7


       1        A    No.

       2        Q    Do you know who issues the licenses to

       3   the replicators that make DVDs from the films that

       4   are submitted to them?

       5        A    No, I do not.

       6        Q    Have you ever met anybody at the DVD

       7   CCA?

       8        A    Not that I'm aware of.

       9        MR. COOPER:  Calls for speculation.

      10   BY MR. GARBUS:

      11        Q    Do you know what that entity is at all?

      12        A    No, I don't.

      13        Q    Do you know who controls the licenses

      14   for DVDs?

      15        A    No, I don't.

      16        Q    Have you ever been advised by your

      17   attorneys who controls the licenses for DVDs?

      18        MR. COOPER:  Objection.  Calls for

      19   attorney-client communication, and expressly so on

      20   that.

      21   BY MR. GARBUS:

      22        Q    Do you know the name of the Defendant in

      23   this case?

      24        A    I'm not sure.  I'm just not sure.

      25        Q    Well, what is your best recollection of


                                                                8


       1   what's the Defendant's name?

       2        A    2600.

       3        Q    Now, does the name Goldstein mean

       4   anything to you?

       5        A    No.

       6        Q    Does the name Corley mean anything to

       7   you?

       8        A    How do you spell it.

       9        Q    C-O-R-L-E-Y.

      10        A    No.

      11        Q    Never heard those names before?

      12        A    No.

      13        Q    Now, what does 2600 do?

      14        A    Well, one thing they do is make T-shirts

      15   with my picture on it.

      16        Q    Does the -- do you know who makes the

      17   hardware for DVDs?

      18        A    No, I don't.

      19        Q    Have you had any discussion with the

      20   hardware makers of DVDs about piracy?

      21        A    No.  Not I'm aware of.  I'm not aware of

      22   any discussions I've had.

      23        Q    Do you know how DECSS work?

      24        A    Not really.

      25        Q    Do you know when it was first posted on


                                                                9


       1   the internet?

       2        A    I don't recall.

       3        Q    Is there any document that would refresh

       4   your recollection?

       5        A    I'm not aware of any.

       6        Q    Do you know when Mr. Goldstein allegedly

       7   or 2600 allegedly first posted DECSS?

       8        A    No, I don't.

       9        MR. COOPER:  Let me just make a point here

      10   that I believe should be clear, and that is to the

      11   extent that the answer to any of the questions

      12   Mr. Garbus asks is known to you only through

      13   communications from counsel you should not provide

      14   the substance of those communications in answering

      15   the question.

      16   BY MR. GARBUS:

      17        Q    Can you tell me something about the

      18   relationship between the MPAA and the eight

      19   plaintiffs in this lawsuit?

      20        A    I don't understand what you mean.  What

      21   do you mean the relationship?

      22        Q    Do you know who the plaintiffs are?

      23        A    Plaintiffs are member companies of the

      24   association.

      25        Q    Does the MPA on their behalf act in anti


                                                                10


       1   piracy matters?

       2        A    Yes, we do.

       3        Q    You, for example, how long have you been

       4   the head of the MPAA?

       5        A    34 years.

       6        Q    During the course of time you've

       7   testified before congress?

       8        A    Yes.

       9        Q    Approximately how many times?

      10        A    I haven't any idea.  A lot.

      11        Q    More or less than 1000?

      12        A    Oh, no.  I haven't testified 1000 but a

      13   lot.

      14        Q    300?

      15        A    I haven't any idea.

      16        Q    You've also over those 34 year met with

      17   senators to discuss MPAA matters?

      18        A    From time to time, yes.

      19        Q    You have appeared before subcommittees

      20   of the congress to testify about DMCA and other

      21   related matters?

      22        A    Yes.

      23        Q    You have been on television both with

      24   respect to your role as MPAA president and in your

      25   previous life?


                                                                11


       1        A    Yes.

       2        Q    Can you just tell us for a moment what

       3   your previous life consisted of?

       4        MR. COOPER:  It's ambiguous.

       5        THE WITNESS:  Before I was named chief

       6   executor officer of MPA and MPAA I was special

       7   assistant to the president of the United States

       8   for three years.

       9   BY MR. GARBUS:

      10        Q    During the course of that time were you

      11   on television?

      12        A    Yes.

      13        Q    Were you quoted in the press?

      14        A    More than I chose to be.

      15        Q    Have you been quoted in the press since

      16   you've been the head of the MPAA?

      17        A    A number of time.

      18        Q    When you say a number of times, would

      19   you agree with me it's been thousands and

      20   thousands of time?

      21        A    I can't give you a number.  I haven't

      22   any idea.  I hesitate to give you a precise number

      23   because I don't know.

      24        Q    In addition to testifying before

      25   congress have you spoken before other groups in


                                                                12


       1   the last 34 years?

       2        A    Yes.

       3        Q    What kind of groups are those?

       4        A    Conferences, seminars, colleges,

       5   universities, various organizations in

       6   broadcasting and cable, et cetera.

       7        Q    And you do that each year?

       8        A    I beg your pardon?

       9        Q    You do that each year.  And you have

      10   been doing it each year for most of the 34 years

      11   you've been head of the MPAA?

      12        A    Yes.

      13        Q    Again, I presume -- could we assume that

      14   you speak at least 100 times a year, and over 34

      15   years that's --

      16        A    No, not that much.  No.  I don't speak

      17   100 times a year.  100 times a year would be nine

      18   time as month.  I don't do that.

      19        Q    Could you give me your best

      20   approximation?

      21        A    I don't know.  I haven't any idea.  I

      22   couldn't give you a number.  I just don't know.

      23        Q    You testified before congress an the

      24   DMCAA legislation?

      25        A    Yes, sir.


                                                                13


       1        Q    You've issued a number of statements

       2   about that legislation?

       3        A    Yes.

       4        Q    You've issued a number of statements

       5   concerning this particular case?

       6        A    Probably.

       7        Q    You've issued a number of statements

       8   concerning the Santa Clara case, the DVD CCA case?

       9        MR. COOPER:  Assume facts not in evidence.

      10   You mean him?

      11        MR. GARBUS:  Yes.

      12   BY MR. GARBUS:

      13        Q    You or the MPAA or you on behalf of the

      14   MPAA?

      15        A    What was --

      16        MR. COOPER:  Ambiguous and compound.

      17        THE WITNESS:  I didn't understand the

      18   question.

      19        MR. COOPER:  Could you please read it to him

      20   again?

      21             (The reporter read the record as

      22   requested.)

      23        THE WITNESS:  DVD case in Santa Clara?

      24        MR. GARBUS:  Yes.

      25        THE WITNESS:  I don't know anything about it.


                                                                14


       1   BY MR. GARBUS:

       2        Q    You don't know anything about a lawsuit

       3   that's been filed in Santa Clara by DVD CCA

       4   against individuals who allegedly had DECSS or

       5   downloaded DECSS?

       6        A    Not to my knowledge.

       7        Q    Today's the first time that you've heard

       8   of a DVD CCA case?

       9        MR. COOPER:  Excluding any conversations with

      10   counsel.  It would be the same admonition with

      11   respect to any of these issues.

      12        THE WITNESS:  Probably, yes.

      13   BY MR. GARBUS:

      14        Q    No others only through counsel?

      15        MR. COOPER:  No, Counsel.  That's not an

      16   appropriate question.

      17        MR. GARBUS:  Sure, it is.

      18        MR. COOPER:  No, it isn't.  Now, if you want

      19   to go off the record and have a conversation about

      20   how to inquire of a witness without intentionally

      21   intruding on the attorney-client privilege, I'd be

      22   happy to do that.

      23        MR. GARBUS:  No.  We'll get a ruling.

      24   BY MR. GARBUS:

      25        Q    Now, with respect to a DVD that's been


                                                                15


       1   de-encrypted by DECSS, have you ever seen one?

       2        A    Have I ever seen a DVD encrypted?

       3        Q    De-encrypt by DECSS?

       4        A    No, I don't.

       5        Q    Has anyone ever told you that a DVD has

       6   been de-encrypted by DECSS?

       7        A    I don't recall.

       8        Q    Has anyone ever told you that they had

       9   ever seen on the internet a DVD de-encrypted by

      10   DECSS?

      11        A    I don't recall.

      12        Q    Do you know whether or not any of the

      13   defendants in this case ever de-encrypted a DVD

      14   through DECSS?

      15        A    I'm not aware.

      16        Q    When you say you're not aware does that

      17   mean you don't know?

      18        A    That's a good synonym.

      19        Q    Okay.  When you said before you don't

      20   recall, did that also mean you don't know?

      21        A    Well, I don't recall when -- meaning, I

      22   don't recall.  I mean, that's a -- that's a simple

      23   declarative English sentence:  I don't recall.

      24        Q    So there's a difference in your mind

      25   between I don't recall and I'm not aware?


                                                                16


       1        MR. COOPER:  Is this a semantic discussion?

       2        MR. GARBUS:  No.  I just want to know where

       3   we go with respect to the questions.

       4        THE WITNESS:  Well, the answer is, I'm fairly

       5   informed about the mother tongue.  And seems to me

       6   I don't recall or I'm not aware means I have a

       7   vague understanding of it and I'm not sure.

       8   BY MR. GARBUS:

       9        Q    Thank you.  Are there any documents that

      10   you could use to refresh your recollection as to

      11   whether or not you know if this defendant is --

      12   whether anyone has ever seen this defendant's take

      13   a DVD and de-encrypt it through DECSS?

      14        MR. COOPER:  Would you read back the

      15   question, please?

      16             (The reporter read the record as

      17   requested.)

      18        THE WITNESS:  I'm sorry, because I've got 102

      19   fever and it's affecting my ears.  I just did not

      20   hear.

      21        MR. COOPER:  Could you read it back more

      22   loudly?

      23   BY MR. GARBUS:

      24        Q    Do you want to take a break from the

      25   deposition?


                                                                17


       1        A    No.  This is fine.  I'm going to do the

       2   best I can.  When I find out I can't go anymore

       3   I'll tell you, but right now I want to continue

       4   this.  I just need -- I didn't understand the

       5   question.  I'm so sorry.

       6        Q    Okay.  Let the rephrase it to you again.

       7        A    Okay.  Please do.

       8        Q    Do you have any document or have you

       9   seen any documents that could refresh your

      10   recollection as to whether or not Goldstein ever

      11   de-encrypted a DVD through DECSS?

      12        A    I'm not aware of any documents.

      13        Q    Have you ever seen any documents which

      14   have ever indicated that anyone has made a copy of

      15   a DVD through DECSS after getting the DECSS from

      16   Goldstein?

      17        A    I'm not aware of any.

      18        Q    To your knowledge, has anyone at the MPA

      19   ever reported to you that any of the Goldstein

      20   sites, sites, have led to any copies of any DVDs?

      21        MR. COOPER:  Excluding any conversations

      22   you've had with counsel.

      23        THE WITNESS:  If that happened it was with my

      24   counsel -- with my lawyers.

      25   BY MR. GARBUS:


                                                                18


       1        Q    Do you have any independent recollection

       2   now?

       3        A    No.

       4        Q    Now, have you seen any documents which

       5   have indicated to you that anybody has made a copy

       6   of DECSS and then used that to de-encrypt a DVD?

       7        A    I'm not aware of such document.

       8        Q    Have you ever seen a document which says

       9   that anyone used any information from Goldstein's

      10   2600.com to de-encrypt a DVD through DECSS?

      11        A    I'm not aware.

      12        Q    Have you ever seen any such documents

      13   that relate to that?

      14        A    Not I'm aware of.

      15        Q    With respect to Mr. Goldstein or

      16   2600.com's linking and the other sites that they

      17   link to, has anyone ever told you that anyone has

      18   ever made a copy of a DVD through de-encryption

      19   through DECSS as a result of the information they

      20   got from the channels from the web sites that were

      21   linked to Goldstein?

      22        MR. COOPER:  Would you read back the

      23   question, please?

      24             (The reporter read the record as

      25   requested.)


                                                                19


       1        THE WITNESS:  I don't recall.

       2   BY MR. GARBUS:

       3        Q    With respect to a DVD that has been

       4   de-encrypted through DECSS, can you fast forward

       5   it?

       6        A    I don't know.

       7        Q    Can you edit such a DVD?

       8        MR. COOPER:  Ambiguous.

       9   BY MR. GARBUS:

      10        Q    Can you edit a DVD that has been

      11   deconstructed through DECSS?

      12        A    Ambiguous.

      13        MR. HERNDSTADT:  De-encrypted.

      14        THE WITNESS:  My answer is I don't know.

      15   BY MR. GARBUS:

      16        Q    Can you edit a DVD that has been

      17   de-encrypted through DECSS?

      18        MR. COOPER:  Ambiguous.

      19        THE WITNESS:  I don't know.

      20   BY MR. GARBUS:

      21        Q    Has anyone ever told you that you can

      22   edit a DVD through DECSS?

      23        A    I have no recollection of that.

      24        Q    Do you know what the Linux machine is?

      25        MR. COOPER:  Assumes facts not in evidence?


                                                                20


       1        THE WITNESS:  I beg pardon?

       2        MR. COOPER:  I said it assumes facts not in

       3   evidence.

       4   BY MR. GARBUS:

       5        Q    Go ahead, sir.

       6        A    I've heard of Linux.

       7        Q    What is it?

       8        A    As I understand, it's an open source

       9   system that a number of computer users use in

      10   their computers.

      11        Q    When you say a number of computer users,

      12   does that relate to personal computers?  Business

      13   computers?

      14        A    I haven't any idea.

      15        Q    When you say an open source system what

      16   does that mean?

      17        A    To me it means free to anybody that

      18   wants to use it.

      19        Q    Do you know whether or not Linux in 1999

      20   was trying to create a system whereby DVDs could

      21   be played on the Linux operating system?

      22        MR. COOPER:  It assumes facts not in

      23   evidence.  There is no Linux as an entity as we've

      24   discussed in, I think, every one of the

      25   depositions that we've been together in, and it


                                                                21


       1   also asserts facts inconsistent with the record.

       2   BY MR. GARBUS:

       3        Q    Go ahead, sir.

       4        A    The answer is I don't know.

       5        MR. GARBUS:  Can I hear the question again?

       6             (The reporter read the record as

       7   requested.)

       8   BY MR. GARBUS:

       9        Q    Do you know whether or not Linux users

      10   were trying to create on operating system that

      11   played DVDs on that operating system?

      12        MR. COOPER:  Ambiguous.

      13        THE WITNESS:  The answer is I don't know.

      14   BY MR. GARBUS:

      15        Q    Do you know whether or not the person

      16   who first published the DECSS code was a Linux

      17   user?

      18        A    I have no idea.

      19        Q    Do you know the purpose for which DECSS

      20   was originally created?

      21        A    All I know is it's a violation of the

      22   law.

      23        Q    Is it your understanding that it's a

      24   violation of the law if the DECSS was created to

      25   create an operating system or to be part of an


                                                                22


       1   operating system for Linux users?

       2        MR. COOPER:  Assuming facts not in evidence,

       3   it's an incomplete hypothetical.

       4   BY MR. GARBUS:

       5        Q    Go ahead.

       6        A    It doesn't make any difference.  The

       7   DMCA is quite clear, great clarity that anyone who

       8   circumvents an encryption is violating the law.

       9        Q    If anyone is using DECSS which they get

      10   from another source; namely, Linux users to play

      11   DVDs, it's your opinion that that's against the

      12   law?

      13        MR. COOPER:  Same objections.  Also calls for

      14   a legal conclusion.

      15        THE WITNESS:  I believe it is very much

      16   against the law.

      17   BY MR. GARBUS:

      18        Q    So that if any system plays a DVD

      19   without a license from DVD CCA, that in your

      20   estimation is against the law?

      21        MR. COOPER:  It's ambiguous.  It's an

      22   incomplete hypothetical.  Assumes facts not in

      23   evidence, and it calls for a legal conclusion.

      24   BY MR. GARBUS:

      25        Q    Go ahead.


                                                                23


       1        A    I hate to sound like a broken record,

       2   but I believe it's a violation of the law.  The

       3   law is very clear and very plain.

       4        Q    It is very clear -- let me give you --

       5   let's assume I buy a DVD, pay a price on it.  Then

       6   I play it on a piece of hardware or a computer

       7   software that doesn't have -- which company

       8   doesn't have a license from DVD CCA.  Is it your

       9   view that that's against the law?

      10        MR. COOPER:  This witness is not here to

      11   testify as a legal expert.  Your questions ask for

      12   him to draw legal conclusions on scant

      13   information.

      14   BY MR. GARBUS:

      15        Q    Go ahead, sir.

      16        A    I believe it's against the law.

      17        Q    So your understanding of the law then is

      18   that the only people who can play DVDs are those

      19   people who play it on licensed software or

      20   hardware?

      21        A    All I do know is that no one can with

      22   impunity circumvent an encrypted DVD.  The law is

      23   plain and clear and unambiguous.

      24        Q    If a Linux user takes DECSS which he did

      25   not get through his own reverse engineering or


                                                                24


       1   through any attempt of circumvention on his side

       2   and uses that on a Linux system to play a DVD,

       3   it's your view that that's against the law?

       4        MR. COOPER:  Incomplete hypothetical.

       5   Assumes facts not in evidence, and it's calls for

       6   a legal conclusion.

       7        MR. GARBUS:  Thank you.

       8        MR. COOPER:  Let's have the question read

       9   back.

      10             (The reporter read the record as

      11   requested.)

      12        THE WITNESS:  Any time that you circumvent an

      13   encryption you're violating the law.

      14   BY MR. GARBUS:

      15        Q    Even if you're using it and you have not

      16   done the reverse engineering and you have not done

      17   the circumvention?

      18        MR. COOPER:  Assumes facts not in evidence.

      19   I think it's internally inconsistent and

      20   unintelligible.

      21        THE WITNESS:  The answer is, I go back again,

      22   the law doesn't make any such exceptions.  The law

      23   is clear.

      24   BY MR. GARBUS:

      25       Confidential 


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      20        MR. COOPER:  Same objections.

      21   BY MR. GARBUS:

      22        Q    Did you testify before congress on

      23   whether or not the MPAA's position was Beta Max --

      24   do you know what DIVX is, D-I-V-X?

      25        A    I've heard of it, but I'm not sure.


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       9        Q    Did you also testify before congress

      10   that the Fair Use Exception was not cut out by the

      11   DMCA?

      12        A    Yes.  The concept of Fair Use is intact

      13   in the DMCA.

      14        Q    Tell he how that is.

      15        MR. COOPER:  Calls for a legal conclusion.

      16        THE WITNESS:  Well, I don't know except that

      17   the concept is intact.

      18   BY MR. GARBUS:

      19        Q    What is the concept of Fair Use, as you

      20   understand it?

      21        A    It means that libraries or

      22   schoolteachers can play movies in their classrooms

      23   for educational purposes.

      24        Q    Do they have to get permission from the

      25   DVD CCA?


                                                                28


       1        MR. COOPER:  Calls for a legal conclusion,

       2   it's misleading.  Assumes facts not in evidence.

       3   Did you intend to ask about the DVD CCA?

       4        MR. GARBUS:  Pardon?

       5        MR. COOPER:  You intended to ask that

       6   question with regard to permission for DVD CCA?

       7        MR. GARBUS:  From whoever you have to get

       8   permission for it.

       9        THE WITNESS:  What's the question?

      10        MR. GARBUS:  Can you read the question back?

      11             (The reporter read the record as

      12   requested.)

      13        MR. COOPER:  It's misleading.  Ambiguous.

      14   Assumes facts not in evidence.

      15        THE WITNESS:  You can go to a Block Bluster

      16   store and get a DVD player in your classroom.

      17   Libraries have DVD which say check out to people

      18   who want to look at them.

      19   BY MR. GARBUS:

      20        Q    Can you fast forward on a DVD?

      21        A    Yeah, I think you can.

      22        Q    If you have, let's say, advertisements

      23   in the beginning, can you fast forward past those

      24   advertisements so that you can go straight to the

      25   movie?


                                                                29


       1        A    I'm not aware of DVDs that have

       2   advertisements.  What do was mean advertisement?

       3        Q    Advertisements for other movies.

       4        A    Yeah, you can fast forward through that.

       5        Q    Can you edit the DVD so as to take off

       6   information to put it on a VCR?

       7        A    That means you have to decrypt mand

       8   that's against the law.

       9        Q    So, in other words, there's no way of

      10   making anything off: a second; a tenth of a second

      11   from the DVD without it being against the law?

      12        MR. COOPER:  Calls for a legal conclusion.

      13   BY MR. GARBUS:

      14        Q    Go ahead, sir.

      15        A    I'm just saying to you as simply as I

      16   can assert it that any time that you decrypt or

      17   try to decrypt a DVD the DMCA is very clear about

      18   that, that you can't do it.  It's against the law.

      19        Q    If you use DECSS to defeat regional

      20   coding is that also against the law?

      21        MR. COOPER:  Assumes facts not in evidence.

      22   It's an incomplete hypothetical.

      23        THE WITNESS:  The answer is, any time that

      24   you circumvent an encryption for whatever reason

      25   you are breaking the law.


                                                                30


       1   BY MR. GARBUS:

       2        Q    Is regional coding encryption?

       3
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      12 

      13   BY MR. GARBUS:

      14        Q    Now, you're the one who testified before

      15   congress, did you not, on the DMCA?

      16        A    I was one of those, yes.

      17        Q    You testified on the effect of Beta Max

      18   on the DMCA and how it should be interpreted?

      19        A    Beta Max?

      20        Q    Yeah.

      21        A    Are you referring to the case 17 -- 19

      22   years ago?

      23        Q    Yes.  Haven't you in your testimony

      24   before congress referred to the Sony against Beta

      25   Max case?


                                                                42


       1        A    I may have.  I'm not aware of it though.

       2   That's in the Mesozoic era.  That's almost 20

       3   years ago.

       4        Q    Did you testify within the last five

       5   years on Beta Max before compress when they were

       6   considering the DMC?

       7        MR. COOPER:  Ambiguous.

       8        THE WITNESS:  I don't recall at all

       9   testifying about Beta Max?

      10   BY MR. GARBUS:

      11        Q    Do you recall issuing any statements

      12   about Beta Max?

      13        MR. COOPER:  Ambiguous.

      14        THE WITNESS:  In the last five years?

      15   BY MR. GARBUS:

      16        Q    Yeah.

      17        A    I'm not aware.

      18        Q    Now, Mr. Cooper described you as a lay

      19   witness.  What do you understand that term to

      20   mean?

      21        A    I am not a lawyer.

      22        Q    So, in other words, a lay witness is

      23   anyone other than a lawyer?

      24        MR. COOPER:  You're asking him to draw a

      25   legal conclusion or to speculate about what I


                                                                43


       1   meant by the term?

       2        MR. GARBUS:  You have called him a lay

       3   witness.  This is the man who's the head of the

       4   MPAA, who for 34 years has been the head of the

       5   MPAA, who has testified endless times before

       6   various groups about his legal interpretation of

       7   the DMCA.  And you don't permit him to answer

       8   questions about the DMCA.

       9             Do you find that surprising?

      10        MR. COOPER:  I tell you what, if you want to

      11   spend the time in this deposition arguing about

      12   issues I'll be glad to.  Let me say that I will

      13   describe my meaning in my statements.

      14             Why don't you ask the witness procipient

      15   testimony on issues that he is here to answer on?

      16        MR. GARBUS:  Let's mark as exhibits first the

      17   October 28, 1998 statement by Jack Valenti to the

      18   Subcommittee on Telecommunications, Trade and

      19   Consumer Protection, Committee on Commerce, U.S.

      20   House of Representatives.  We will mark as exhibit

      21   two -- and I'll give you copies of this -- a

      22   letter from Mr. Valenti to a Ms. Terry Tang dated

      23   June 30th, 1998.  And enclosed in that letter is a

      24   document entitled chronology of WIPO treaty and

      25   implement legislation.  Also enclosed is a letter,


                                                                44


       1   letter dated March 31, 2000 from Mr. Valenti to

       2   David Carson, a lawyer at the general counsel of

       3   an organization named in the letter.

       4             And then we'll mark as exhibit four a

       5   document to which Mr. Valenti is a signatory --

       6   pardon me -- to which the Motion Picture

       7   Association of America is a signatory as of March

       8   30, 2000, when Mr. Valenti was the head of that

       9   organization.

      10        MR. COOPER:  I haven't yet seen the

      11   documents.  So I can't speak to the

      12   characterizations of counsel, but I will note for

      13   the record that I believe he misspoke with respect

      14   to the third document.  I think he said something

      15   about it being enclosed.

      16             I believe what was intended was that the

      17   third referenced document was to be marked as

      18   exhibit three rather than the inference that it

      19   was enclosed with exhibit two.

      20        MR. GARBUS:  I'll let the record speak for

      21   itself.

      22        VIDEOGRAPHER:  Off the record.  The time is

      23   9:32:03.

      24             (Valenti Exhibits 23-26 identified.)

      25             (Recess.)


                                                                45


       1        VIDEOGRAPHER:  We're back on the record.  The

       2   time is 9:40.

       3   BY MR. GARBUS:

       4        Q    Mr. Valenti, directing your attention to

       5   exhibit number 24.

       6        MR. COOPER:  For the record -- I don't mean

       7   to interrupt you, but I think the renumbering of

       8   these documents from what you put on the record

       9   occurred off the record.  So you might want to

      10   just note that they've been renumbered in

      11   agreement between counsel.

      12        MR. GARBUS:  They have now been renumbered so

      13   as to be consistent with the previous depositions.

      14   So 23, 24, 25 and 26, rather than one, two, three

      15   and four, but I'll identify each document when I

      16   refer to it.

      17   BY MR. GARBUS:

      18        Q    With respect to exhibit 24, which is a

      19   letter to Ms. Tang at the New York Times, do you

      20   know who Mr. Adaway is?

      21        A    Yes.

      22        Q    Who is Mr. Adaway?

      23        A    Senior vice president and Washington

      24   general counsel of the MPAA.

      25        Q    I direct your attention -- and the


                                                                46


       1   letter starts off with, "Jack Valenti asked me to

       2   send you the attached material relating to

       3   implementation of the WIPO treaties."  Is that

       4   right?

       5        A    That's what it says here, yes.

       6        Q    Do you recognize the document that is

       7   attached?

       8        A    I never really saw it.  I just -- I

       9   asked Mr. Adaway to send this lady information

      10   about the WIPO treaties.

      11        Q    The information that you sent, that's

      12   the position of the MPAA.  Is that right?

      13        MR. COOPER:  Lacks foundation.  Calls for

      14   speculation.

      15        THE WITNESS:  Well, I haven't read this.  So

      16   I don't know.

      17   BY MR. GARBUS:

      18        Q    Direct your attention to page 7216 if

      19   you see in the low right-hand corner, section 11.

      20             This is a letter to -- is that the

      21   position of the MPAA?  And isn't that the position

      22   you've testified in congress was the position of

      23   the MPAA?

      24        MR. COOPER:  Lacks foundation.  Calls for

      25   speculation.  Take a moment to read it, please.


                                                                47


       1        THE WITNESS:  Well, this is a legal paragraph

       2   that Mr. Adaway has sent to this lady which

       3   summarizes the 1984 Supreme Court decision, and

       4   it's not MPA policy.  I guess that's Supreme Court

       5   policy.

       6   BY MR. GARBUS:

       7        Q    It says, "Will section 1201 overrule the

       8   Supreme Court Beta Max decision."  And then it

       9   says, "No."  And then it goes on.

      10             Wasn't that the position you took and

      11   testified before congress?

      12        MR. COOPER:  You're asking whether he said

      13   what's contained in those two sentences?

      14        MR. GARBUS:  Yes, in substance.

      15        THE WITNESS:  I don't know.

      16   BY MR. GARBUS:

      17        Q    Do you know what you testified in

      18   congress relative to the effect of Beta Max on the

      19   DMCA?

      20        MR. COOPER:  Assumes facts not in evidence.

      21        THE WITNESS:  I have written about a million

      22   words.

      23   BY MR. GARBUS:

      24        Q    Does this refresh your --

      25        A    It is impossible to remember specific


                                                                48


       1   paragraphs out of a million words, testimony and

       2   speeches.  So the answer is, I don't know.

       3        Q    Does it refresh your recollection in any

       4   way as to what the MPA's stated position was

       5   before the DM -- before the congress when it

       6   testified about the DMCA?

       7        MR. COOPER:  You're asking whether this

       8   refreshes his recollection on that?

       9        MR. GARBUS:  Right.

      10        THE WITNESS:  I don't know whether this

      11   section 11 here was part of my testimony before

      12   the DM.

      13   BY MR. GARBUS:

      14        Q    I didn't ask you that.  I said, does

      15   this refresh your recollection as to what the

      16   MPAA's position was before the congress when it

      17   gave information concerning the effect --

      18        A    I don't want.

      19        MR. COOPER:  Please let him finish, and then

      20   give me an opportunity to object.

      21        THE WITNESS:  All right.  Fine.

      22   BY MR. GARBUS:

      23        Q    -- the Beta Max decision and its

      24   interrelationship with section 1201?

      25        MR. COOPER:  You no longer mean to be


                                                                49


       1   referring to his testimony.  You're talking about

       2   any positions asserted by the MPA?

       3        MR. GARBUS:  Yes.

       4        MR. COOPER:  Lacks foundation.

       5   BY MR. GARBUS:

       6        Q    Go ahead, sir.

       7        A    What is it you want to know?

       8        Q    Do you know what the MPAA's position was

       9   before congress with respect to the viability of

      10   the Beta Max case and the relationship between the

      11   Beta Max case and section 1201?

      12        A    Well, the Beta Max case said that you

      13   could time shift for over-the-air free television.

      14   That's all it said.

      15             What else do you want to know?

      16        Q    Now try and answer my question.

      17        MR. GARBUS:  Can you repeat the question to

      18   the witness?

      19             (The reporter read the record as

      20   requested.)

      21        MR. COOPER:  He has answered your question.

      22   BY MR. GARBUS:

      23        Q    Go ahead, sir.

      24        MR. COOPER:  What's the question?

      25        THE WITNESS:  Yeah, what the question?


                                                                50


       1        MR. COOPER:  Read the question.

       2             (The reporter read the record as

       3   requested.)

       4        MR. COOPER:  He's answered your question.  Do

       5   you have a follow-up?

       6        MR. GARBUS:  Will you allow the witness to

       7   answer?

       8        MR. COOPER:  Would you read back his answer,

       9   please?

      10             (The reporter read the record as

      11   requested.)

      12   BY MR. GARBUS:

      13        Q    I asked you whether or not -- and I

      14   direct your attention to page -- to paragraph

      15   three of section 11, which says, quote, "The Beta

      16   Max case would remain good law even after the

      17   enactment of section 1201."

      18             Wasn't that the MPA's position before

      19   congress?

      20        MR. COOPER:  Are you asking whether this

      21   sentence refreshes his recollection?

      22        MR. GARBUS:  As to what the MPAA's position

      23   was.

      24        THE WITNESS:  What the Beta Max case said,

      25   according to my lawyers, was that time shifting


                                                                51


       1   for over-the-air free television was permissible

       2   and said nothing about cable.  It said nothing

       3   about encrypted material.

       4             And so what Mr. Adaway is saying here,

       5   it seems to me, is that section 1201 does that

       6   override the Beta Max case.

       7   BY MR. GARBUS:

       8        Q    When he is saying the Beta Max case

       9   would remain good law even after the enactment of

      10   section 1201, you have testified substantively and

      11   substantially to that effect to congress.  Isn't

      12   that correct?

      13        MR. COOPER:  Complex.  Compound.

      14        THE WITNESS:  All I'm saying, counselor, is

      15   that, relying on my lawyer's interpretation, that

      16   the Beta Max case was narrowly constructed.  It

      17   only dealt with over-the-air free television time

      18   shifting.  That's all you could copy, period.

      19   BY MR. GARBUS:

      20        Q    So you're saying that the entire Beta

      21   Max case, as I understand it, as you understand it

      22   was good law even after the enactment of section

      23   1201?

      24        MR. COOPER:  He's testified to is

      25   understanding.  You're now trying to characterize


                                                                52


       1   it and extend it.

       2   BY MR. GARBUS:

       3        Q    Go ahead, sir.

       4        MR. COOPER:  Calls or a legal conclusion.

       5        THE WITNESS:  I think what good law means, if

       6   the law is intact, and to the extent that you can

       7   time shift for free over-the-air television

       8   stations, period.

       9   BY MR. GARBUS:

      10        Q    Did the Beta Max case deal with the

      11   question of infringement?

      12        MR. COOPER:  Lacks foundation.

      13   BY MR. GARBUS:

      14        Q    To your knowledge?

      15        A    I don't recall.  I don't know.

      16        Q    Did the Beta Max deal with the question

      17   of copying material off TV and then making

      18   duplicate copies of the copies?

      19        MR. COOPER:  Lacks foundation.

      20        THE WITNESS:  I don't recall.

      21   BY MR. GARBUS:

      22        Q    Do you know if the Beta Max case talked

      23   about the number of infringing copies you can make

      24   from material bought in the store or material

      25   taken off TVs?


                                                                53


       1        A    I don't recall.

       2        MR. COOPER:  Lacks foundation.

       3   BY MR. GARBUS:

       4        Q    Do you know anything about the Beta Max

       5   case here with respect to infringement?

       6        MR. COOPER:  Other than what he's already

       7   testified to?

       8        MR. GARBUS:  Right.

       9        THE WITNESS:  I think I've testified what I

      10   believe is a summary of the Beta Max case.

      11   BY MR. GARBUS:

      12        Q    Do you know the Sega case?

      13        A    The what?

      14        Q    S-E-G-A case.

      15        MR. COOPER:  Ambiguous.

      16   BY MR. GARBUS:

      17        Q    Sega against Accolade?

      18        A    No, I don't know it.

      19        Q    Do you know any of the cases that follow

      20   from the Beta Max case?

      21        A    No.

      22        Q    To your knowledge, did Mr. Adaway -- by

      23   the way, did Mr. Adaway also testify before

      24   congress?

      25        A    From time to time.


                                                                54


       1        Q    Who was the -- he is the Washington

       2   general counsel for the MPAA?

       3        A    Yes.

       4        Q    Is he the senior attorney?

       5        A    In Washington.

       6        Q    Is there a senior attorney?

       7        MR. COOPER:  I just want to make sure -- it

       8   is at times difficult to tell whether Mr. Garbus

       9   has finished his question.  So if you'll pause for

      10   a moment it will give ne an opportunity to

      11   interject objections.

      12        THE WITNESS:  I'm sorry.

      13   BY MR. GARBUS:

      14        Q    Do you recall ever having testified

      15   before congress that the Fair Use Exception that

      16   existed before 1201 is the same as the Fair Use

      17   Exception that exists now?

      18        A    I don't understand the question.  I'm

      19   sorry.

      20        Q    Do you understand that the -- did you

      21   testify before the congress that the DMCA does not

      22   change Fair Use?

      23        A    I think I did.

      24        Q    The position of the MPAA is that the

      25   DMCA does not change Fair Use?


                                                                55


       1        A    The Doctrine of Fair Use is still

       2   intact.

       3        Q    In every way?

       4        A    Well, I don't -- counselor, I don't know

       5   what every way means.

       6        Q    Is there any way that you can think of

       7   that Fair Use is less intact after the DMCA than

       8   it was before?

       9        MR. COOPER:  Calls for a legal conclusion.

      10        THE WITNESS:  I don't know.

      11   BY MR. GARBUS:

      12        Q    Has Mr. Adaway testified -- by the way,

      13   before Mr. Adaway testifies do you and he ever

      14   discuss what the subject of his testimony will be?

      15        A    I don't recall.

      16        Q    Have you ever seen any copies of his

      17   testimony?

      18        A    I may have.  I may not have.

      19        Q    Now, were you present at any discussions

      20   within the MPAA concerning the effect of the DMCA

      21   on Fair Use?

      22        MR. COOPER:  Because of the possibility that

      23   such discussions might involve the attorney-client

      24   privilege I would ask you to answer yes or no to

      25   the question.


                                                                56


       1        THE WITNESS:  I don't know.

       2   BY MR. GARBUS:

       3        Q    Did you have any discussion with the

       4   heads of any of the studios or anybody at the

       5   studios, the plaintiffs in this case, concerning

       6   Fair Use and the effect of the DMCA on Fair Use?

       7        A    I'm not aware of any.

       8        Q    Is it fair to say that the MPA was one

       9   of the larger lobbying groups in the DMCA issue?

      10        A    What do you mean by larger?  Do you mean

      11   numbers of people?

      12        Q    Dollars.  Numbers of people.

      13        A    No.  I would say we are not.

      14        Q    Who are the others?

      15        A    I have no idea, but we don't have a

      16   large staff.

      17        Q    How many people do you have here in

      18   Washington?

      19        A    I have one person that handles congress,

      20   one person, and I have Mr. Adaway.

      21        Q    How much money does the MPA spend each

      22   year on lobbying?

      23        A    I don't know.

      24        Q    What is the total MPA budget?

      25        A    This year approximately $25 million


                                                                57


       1   worldwide.

       2        Q    Do you know whether there are DECSS

       3   sites overseas?

       4        A    I don't know.

       5        Q    Do you know if the MPAA has tried to

       6   stop these DECS sites that are overseas?

       7        MR. COOPER:  Would you read back the

       8   question, please?

       9             (The reporter read the record as

      10   requested.)

      11        THE WITNESS:  I don't know.

      12   BY MR. GARBUS:

      13        Q    Do you know if the MPA has tried to

      14   determine whether there is any hardware presently

      15   playing DVDs as a result of DECSS?

      16        MR. COOPER:  Ambiguous.

      17        THE WITNESS:  I don't know.

      18   BY MR. GARBUS:

      19        Q    If you play a DVD on your CSS equipped

      20   player, in other words, an appropriate player, and

      21   you use something called Speed Ripper -- have you

      22   ever heard of Speed Ripper?

      23        A    No.

      24        Q    Have you ever heard of something called

      25   DOD?


                                                                58


       1        A    No.

       2        Q    Do you know the names of any devices

       3   that can capture the digital signal without

       4   de-encryption?

       5        MR. COOPER:  Ambiguous.

       6        THE WITNESS:  I don't know.

       7   BY MR. GARBUS:

       8        Q    Has anyone discussed the Steam Box case

       9   with you?

      10        MR. COOPER:  Ambiguous.

      11        THE WITNESS:  Not to my knowledge.

      12   BY MR. GARBUS:

      13

      14

      15                        Confidential

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25


                                                                59


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                                                                64


       1                       Confidential

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                                                                65


       1                       Confidential

       2

       3

       4

       5

       6

       7

       8

       9

      10

      11

      12

      13

      14        Q    Do you know who Mr. Schumann is?

      15        A    Schumann?

      16        Q    Yeah.

      17        A    What's his first name?

      18        Q    Robert?

      19        A    Great composer.  I love his music.

      20        Q    Not this man's.  He's an expert witness

      21   who has been retained by the MPAA and Proskauer.

      22   Do you know him at all?

      23        A    I do not know him.

      24        Q    Have you ever seen any of his reports?

      25        A    No.


                                                                66


       1        Q    Do you know whether he prepared a

       2   report?

       3        A    I don't know.

       4        Q    Have you had any conversations with any

       5   of the people at any of the eight major studios

       6   about any aspect of this litigation?

       7        A    About Mr. Schumann?

       8        Q    About this litigation.  Not

       9   Mr. Schumann.  About any aspect of this

      10   litigation?

      11        A    I don't recall.

      12        Q    Have you had any conversations with

      13   anyone at the DVD CCA about Mr. Schumann?

      14        A    As I said, I don't even know what that

      15   is.

      16        Q    How about Mr. Jacobson?  Do you know

      17   him?

      18        A    Jacobson?  Who is Mr. Jacobson?  You

      19   mean my Mr. Jacobson?

      20        Q    Yes.

      21        A    Oh, sure.  I know him, of course.

      22        Q    To your knowledge, has Mr. Jacobson ever

      23   told you that he had ever seen a DVD that had been

      24   de-encrypted by DECSS?

      25        MR. COOPER:  Would you read back the


                                                                67


       1   question, please?

       2             (The reporter read the record as

       3   requested.)

       4        MR. COOPER:  It's possible that the answer to

       5   that question could intrude on the attorney-client

       6   privilege.  So you should answer the question yes

       7   or no.

       8        THE WITNESS:  I don't remember.

       9   BY MR. GARBUS:

      10        Q    You said any use of DVD that involves

      11   coping is illegal.  Is that right?

      12        A    I think what I said was, any time you

      13   circumvent encryption according to the DMCA you're

      14   violating the law.  That's what I said.

      15        Q    You're also violating the law, are you

      16   not, if you copy DVDs without de-encrypting?

      17        MR. COOPER:  Calls for a legal conclusion.

      18   It's an incomplete hypothetical.

      19   BY MR. GARBUS:

      20        Q    Does you know how -- let's use the term

      21   Asian pirates -- how they copy DVD?

      22        A    What kind of pirates?

      23        MR. COOPER:  Ambiguous.

      24   BY MR. GARBUS:

      25        Q    Let's say Asian pirates or Hong Kong


                                                                68


       1   pirates.  Do you know how most DVD -- pirated DVDs

       2   are made?

       3        A    No.

       4        MR. COOPER:  Compound.

       5   BY MR. GARBUS:

       6        Q    Do you know that there are ways to copy

       7   DVDs by pirates without breaking the de-encryption

       8   code?

       9        MR. COOPER:  Assume facts not in evidence.

      10        THE WITNESS:  I'm not aware of such.

      11   BY MR. GARBUS:

      12        Q    Do you know what the major source of

      13   pirated copies come from -- from which process

      14   they come?

      15        MR. COOPER:  Copies of?

      16        MR. GARBUS:  DVDs.

      17        THE WITNESS:  I don't remember.

      18   BY MR. GARBUS:

      19        Q    Now, with respect to copying movies,

      20   you've spoken publicly about the use of camcorders

      21   to copy movies.  Do you recall that?

      22        A    In analog form, yes.

      23        Q    You have indicated in your public

      24   statement that that's a major concern of the MPAA.

      25   Is that right?


                                                                69


       1        A    It is of concern, yes.

       2        Q    Do you know how many copies of films or

       3   how many films have been copied through the use of

       4   camcorders?

       5        A    A lot.

       6        Q    Do you know if any of those films have

       7   been shown on the internet?

       8        A    I don't know.

       9        Q    When you say a lot, what is the basis

      10   for that judgment?

      11        A    The answer is that it's a large number,

      12   but I don't know the precise number.

      13

      14

      15
                               Confidential
      16

      17

      18

      19

      20

      21

      22

      23

      24

      25


                                                                70


       1                        Confidential

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                                                                71


       1                        Confidential

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      11

      12

      13

      14

      15

      16

      17

      18

      19        A    I don't know.

      20        VIDEOGRAPHER:  Off the record.  The time is

      21   10:07 and 42 seconds.

      22             (Recess.)

      23        VIDEOGRAPHER:  We're back on the record.  The

      24   time is 10:18 and 17 seconds.

      25             (Valenti Exhibit 27 identified.)


                                                                72


       1   BY MR. GARBUS:

       2        Q    Mr. Valenti, I show you a document

       3   marked exhibit 27.  It says "Blind copies to Fritz

       4   Adaway," who you've previously and identified.

       5   Simon Barski, who I know to be a lawyer at the MPA

       6   and Rich Taylor.  Who is he?

       7        A    He is head of our public affairs

       8   department.

       9        Q    Brad Hunt?

      10        A    Brad Hunt is chief technology officer.

      11        Q    What is his position?

      12        A    I beg your pardon?

      13        Q    What and what does he do?

      14        A    He's the chief technology officer.

      15        Q    What does he do?

      16        A    He deals in technology.

      17        Q    In other words, does he, for example,

      18   take DVDs and try and see the quality of a film

      19   that has been de-encrypted?

      20        MR. COOPER:  Lacks foundation.

      21        THE WITNESS:  I'm not aware of that, no.

      22   BY MR. GARBUS:

      23        Q    Have you ever seen -- do you know

      24   anything about the quality of a film -- a DIVX

      25   film?


                                                                73


       1        A    No.

       2        Q    Do you know anything about the quality

       3   of a film that has been de-encrypted through

       4   DECSS?

       5        A    No.

       6        Q    Has anyone ever shown you a film that

       7   they have de-encrypted through DECSS?

       8        MR. COOPER:  Asked and answered.

       9        THE WITNESS:  No.

      10   BY MR. GARBUS:

      11        Q    Do you know if anyone at the MPAA has

      12   made any tests concerning how long it takes to

      13   download a DVD and de-encrypt it through DECSS?

      14        A    Not that I'm aware of.

      15        Q    Have you seen any newspaper articles

      16   that indicate how long it takes to --

      17        A    I may have, but I don't remember.

      18        Q    Now directing your attention to exhibit

      19   27.  That letter is your letter, and that is your

      20   signature at the end?

      21        A    It is.

      22        Q    You say, with respect to the third

      23   paragraph, "The movie industry doesn't seek to

      24   eliminate the Fair Use Doctrine.  Is that correct?

      25        A    That's correct.


                                                                74


       1        MR. COOPER:  You're asking him whether that's

       2   what the document says, right?

       3        MR. GARBUS:  No.  Whether that's correct.

       4   BY MR. GARBUS:

       5        Q    Whether what you said is correct?

       6        A    Yes.

       7        Q    You say, "That doctrine was constructed

       8   to make it easier for research, scholarship,

       9   commentary and similar uses which do not harm the

      10   economic interests of copywrite owners."

      11             Is that right?

      12        MR. COOPER:  The document so states.  Are you

      13   asking whether he is recalling --

      14        MR. GARBUS:  Whether that's his view.

      15   BY MR. GARBUS:

      16        Q    Is that your view?

      17        MR. COOPER:  Today?

      18        MR. GARBUS:  Yeah, today.

      19        THE WITNESS:  Yes.

      20   BY MR. GARBUS:

      21        Q    You haven't changed your view?

      22        A    No.

      23        Q    In the last paragraph you talk about the

      24   users of the Linux system?

      25        A    Yes.


                                                                75


       1        Q    Pardon me?  Excuse me?

       2        A    I said yes.

       3        Q    What that paragraph indicates is those

       4   Linux users who have license can appropriately

       5   play DVDs and that's not illegal.  Is that right?

       6        MR. COOPER:  The document speaks for itself.

       7   Are you asking him to agree with your

       8   characterization of the paragraph?

       9        MR. GARBUS:  Surely.

      10        THE WITNESS:  Yeah.  It says it what it says.

      11   BY MR. GARBUS:

      12        Q    Yes.  And that's what I said, right?

      13        MR. COOPER:  You're asking for him now to

      14   adopt your characterization of it.

      15   BY MR. GARBUS:

      16        Q    In the third paragraph -- which is a

      17   letter you wrote three months ago?

      18        A    Third paragraph, yes.

      19        Q    -- you talk about the Beta Max case?

      20        A    Yes.

      21        Q    In the last paragraph you talk about

      22   Professor Lessig.

      23        A    Yes.

      24        Q    Do you remember the example he used?

      25        MR. COOPER:  Could I ask, Mr. Valenti m,that


                                                                76


       1   you slow down.  I'm not sure what counsel means by

       2   third paragraph, last paragraph.  I believe he's

       3   referring to the, when saying that, the first

       4   paragraph on page two.  I think that's what he

       5   meant by the third paragraph.

       6        MR. GARBUS:  It's called third, yes.

       7        MR. COOPER:  It's ambiguous.

       8        MR. GARBUS:  Mr. Valentin and I understood.

       9        MR. COOPER:  Well, you two may have

      10   understood each other, but the purpose of the

      11   deposition is to create a record so that somebody

      12   else can understand it, and that's why I would

      13   like the witness to slow down and allow me to

      14   interject my objections.

      15                        Confidential

      16

      17   BY MR. GARBUS:

      18        Q    In the last paragraph on page two --

      19        A    Paragraph what?  Professor Lessig seems

      20   to find?

      21        MR. GARBUS:  Is that agreeable with you,

      22   Mr. Cooper, if I call that the last paragraph.

      23        MR. COOPER:  It is.

      24   BY MR. GARBUS:

      25        Q    Do you recall the example that Professor


                                                                77


       1   Lessig used in the article?

       2        A    I don't remember.

       3        Q    Well, let me ask.  Do you recall the

       4   article itself, Mrs. Trusso's article?

       5        A    The essence of the article is Professor

       6   Lessig believes that if it's on the internet it's

       7   free for the taking.  I think that's the general

       8   belief he has.

       9        Q    Can you tell us who Professor Lessig is?

      10        A    He was a law professor at Harvard.  I

      11   think he's now at Stamford.

      12        Q    Do you recall him saying that as a

      13   teacher he had the right or he understood he had

      14   the right to take a piece of a DVD to use it for a

      15   lecture in class?  Do you recall him saying that

      16   in the article?

      17        A    I don't recall it, no.

      18        Q    Do you agree that a person teaching in a

      19   classroom such as professor Lessig can take three,

      20   four, five minutes of a DVD and play it to his

      21   class?

      22        MR. COOPER:  Assumes facts not in evidence.

      23   It's an incomplete hypothetical.

      24        THE WITNESS:  If you mean can he de-encrypt

      25   it the answer is no, but he can get it a DVD and


                                                                78


       1   fast forward to the three or five minutes he wants

       2   to play.

       3   BY MR. GARBUS:

       4        Q    But he can't take it and put it off on

       5   something other than the original DVD?

       6        MR. COOPER:  Calls for a legal conclusion.

       7   BY MR. GARBUS:

       8        Q    Is that right, sir?

       9        A    I go back to my principle:  You cannot

      10   circumvent an encryption for whatever reason.

      11        Q    So that if a librarian, for example,

      12   wants to use two to three minutes for a lecture,

      13   is she required to get a license from the DVD CCA

      14   or the MPAA to use those two or three minutes?

      15        MR. COOPER:  Assumes facts not in evidence.

      16   Calls for a legal conclusion and lacks foundation.

      17             I just don't understand how we can

      18   continue to spend the deposition asking the

      19   witness increasingly more convoluted legal

      20   scenarios.  He is not here to testify as a legal

      21   expert.

      22   BY MR. GARBUS:

      23        Q    Go ahead, sir.

      24        A    The answer is, if there's a legal

      25   conclusion to be drawn I don't know.


                                                                79


       1        Q    If a librarian or an academic wants to

       2   just use two or three minutes on some other thing

       3   other than a DVD that he bought originally, is

       4   there anyway he can communicate with either the

       5   DVD CCA or the MPAA so that arrangements for that

       6   can be made?

       7        MR. COOPER:  Unintelligible.  Assumes facts

       8   not in evidence, and calls for speculation.

       9        THE WITNESS:  Counsel, I don't understand

      10   what you mean.

      11   BY MR. GARBUS:

      12        Q    If a teacher or a student -- let's

      13   assume a student.  A student wants to write a

      14   paper on the holocaust and a student wants to use

      15   two or three minutes from Schindler's List and she

      16   can't take the entire DVD and find the place and

      17   do that, but rather as part of her own video

      18   presentation she wants to take two or three

      19   minutes from Schindler's List.  Is there any way

      20   she can do that by contacting the DVD CCA or the

      21   MPAA and getting permission to de-encrypt to use

      22   those three minutes?

      23        MR. COOPER:  Ambiguous.  It's compound.  He's

      24   testified a number of times that he doesn't know

      25   what the DVD CCA is.  So by importing that into


                                                                80


       1   your question is making it compound.  I think you

       2   make it impossible for the witness to answer the

       3   question.

       4        THE WITNESS:  I can't answer the question.

       5   BY MR. GARBUS:

       6        Q    Let's restrict it to the MPAA.

       7        A    I can't answer the question.

       8        Q    Why not?

       9        A    Because I don't know what the answer is.

      10        Q    Do you understand the question?

      11        A    Huh?

      12        Q    Do you understand the question?

      13        A    Not really.

      14        Q    If a student wants to do a term paper,

      15   let's say do a video presentation on the

      16   holocaust -- do 20 minutes on the holocaust, and

      17   wants to take two or three minutes from a DVD from

      18   Schindler's List to put into that holocaust

      19   presentation and she has to de-encrypt the DVD to

      20   do that, is that illegal?

      21        MR. COOPER:  Asked and answered.  It also

      22   calls for legal conclusion.  It's an incomplete

      23   hypothetical.

      24   BY MR. GARBUS:

      25        Q    Go ahead, sir.


                                                                81


       1        A    The student could do that by getting an

       2   analog version of Schindler's List, because that's

       3   not encrypted.

       4        Q    So that you can do that with analog

       5   version.  You can also do that, can you not, with

       6   a VCR duplication of a movie?

       7        MR. COOPER:  Ambiguous.  Calls for a legal

       8   conclusion.

       9        THE WITNESS:  The answer is, I don't know.

      10   You're getting me into some deep legal water here,

      11   and I don't know the answer.

      12   BY MR. GARBUS:

      13        Q    Let's assume if I rent a movie at Block

      14   Buster -- if I wanted to rent Schindler's List at

      15   Block Buster I could do that?

      16        MR. COOPER:  Ambiguous.

      17   BY MR. GARBUS:

      18        Q    Is that right?  In other words, the

      19   student could do that:  Take a little chunk of it

      20   and then put it into her term paper?

      21        MR. COOPER:  Ambiguous.  Incomplete

      22   hypothetical.  Calls for a legal conclusion.

      23        THE WITNESS:  I don't know.

      24   BY MR. GARBUS:

      25                        Confidential


                                                                82


       1                        Confidential

       2

       3

       4

       5

       6

       7        Q    In other words, do you understand then

       8   that the ability to copy or take a piece of a DVD

       9   is different than taking a piece of something

      10   which is analog or taking a piece of, let's say, a

      11   VCR?

      12        MR. COOPER:  Same objections.

      13   BY MR. GARBUS:

      14        Q    Or videotape?

      15        MR. COOPER:  Same objections.  It's compound.

      16   It's incomplete hypothetical.  Calls for a legal

      17   conclusion.

      18   BY MR. GARBUS:

      19        Q    Go ahead, sir.

      20        A    I don't have a legal conclusion to give

      21   you.

      22

      23                        Confidential

      24

      25


                                                                83


       1                        Confidential

       2

       3

       4   BY MR. GARBUS:

       5        Q    If you take a VCR videotape, can you put

       6   that on the internet?

       7        MR. COOPER:  Incomplete hypothetical.  Calls

       8   for legal conclusion, and it's ambiguous.

       9   BY MR. GARBUS:

      10        Q    Do you know whether or not you can buy a

      11   videotape of a movie and then put that on the

      12   internet?

      13        MR. COOPER:  You're asking technologically

      14   whether it's possible to do it?

      15   BY MR. GARBUS:

      16        Q    Do you know whether the MPA has ever

      17   checked into whether or not you can take a rented

      18   movie and put that on the internet?

      19        MR. COOPER:  Ambiguous.  You're asking

      20   whether it's possible.  Not whether it's legal.

      21        THE WITNESS:  I don't know.

      22   BY MR. GARBUS:

      23        Q    I presume you don't know whether it's

      24   possible or whether it's legal.  Is that right?

      25        A    I don't know to both of them.


                                                                84


       1        Q    Do you know whether or not you can take

       2   a video that you make, a duplicate, and then put

       3   it on the internet?

       4        MR. COOPER:  It's incomplete hypothetical.

       5   It's ambiguous.  Calls for a legal conclusion.

       6        THE WITNESS:  I don't know.

       7   BY MR. GARBUS:

       8 

       9 
                              Confidential
      10 

      11 

      12 

      13 

      14   BY MR. GARBUS:

      15        Q    You don't know whether it's possible or

      16   whether or not it's legal.  Is that right?

      17        MR. COOPER:  Same objections.

      18        THE WITNESS:  Don't know.  I don't know

      19   whether it's possible.  I don't know whether it's

      20   legal.

      21   BY MR. GARBUS:

      22        Q    There's been testimony or there have

      23   been affidavits in this case.  If an academic

      24   writes an article --

      25        A    If who?


                                                                85


       1        Q    An academic writes an article about

       2   de-encryption and how DECSS was arrived at, is

       3   such an article permissible or is that a violation

       4   of the law?

       5        MR. COOPER:  Would you read back the

       6   question, please?

       7             (The reporter read the record as

       8   requested.)

       9        MR. COOPER:  Calls for a legal conclusion.  I

      10   also remind the witness, as with all of these

      11   questions, that if the only information you have

      12   is through attorney-client communications not to

      13   reveal the substance of those communications.

      14        THE WITNESS:  I don't know what the legality

      15   is.

      16   BY MR. GARBUS:

      17        Q    Do you know whether -- have you tried to

      18   determine whether any academic articles are being

      19   written now that have the full DECSS in it?

      20        MR. COOPER:  Lacks foundation if you're

      21   asking about the MPAA.

      22        THE WITNESS:  I don't know.

      23   BY MR. GARBUS:

      24        Q    Do you know if anybody at the MPAA knows

      25   that?


                                                                86


       1        A    I don't know.

       2        Q    Have you tried to stop any academic web

       3   sites that have DECSS on it?

       4        MR. COOPER:  By that you mean the MPAA?

       5        MR. GARBUS:  Yes.

       6        THE WITNESS:  I don't know.

       7   BY MR. GARBUS:

       8

       9                        Confidential

      10

      11

      12

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25


                                                                87


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                                                                89


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                                                                90


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       8

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      11

      12

      13

      14

      15

      16

      17   BY MR. GARBUS:

      18        Q    Has the MPA contacted any law professors

      19   and told them that they cannot refer to any site

      20   that links to DECSS?

      21        MR. COOPER:  Before you answer, I want to

      22   make sure that it's clear that to the extent you

      23   know an answer to a question like that through a

      24   communication with counsel you should not provide

      25   the substantive answer to the question.


                                                                91


       1        THE WITNESS:  I don't know.

       2   BY MR. GARBUS:

       3

       4                        Confidential

       5

       6

       7

       8

       9

      10

      11   BY MR. GARBUS:

      12        Q    If the student takes the DECSS code that

      13   he's gotten in a classroom and gives it to someone

      14   else who does not download DVD, is that illegal?

      15        MR. COOPER:  Ambiguous and calls for a legal

      16   conclusion, and it's an incomplete hypothetical.

      17   BY MR. GARBUS:

      18        Q    Go ahead sir.

      19        A    I don't know.

      20        Q    If the student gives it to someone else

      21   who does make a DVD through the use of

      22   de-encryption is that DVD made through the use of

      23   de-encryption illegal?

      24        MR. COOPER:  Same objections.

      25        THE WITNESS:  I don't know.


                                                                92


       1   BY MR. GARBUS:

       2        Q    When you take a film in a movie house

       3   with a camcorder can you then take that film and

       4   put it on the internet?

       5        MR. COOPER:  Would you read back the

       6   question, please.

       7             (The reporter read the record as

       8   requested.)

       9        MR. COOPER:  Ambiguous.  Unintelligible.  Are

      10   you asking whether it's physically possible to do

      11   it?

      12        MR. GARBUS:  Yes.

      13        MR. COOPER:  Lacks foundation.

      14        THE WITNESS:  I don't know.

      15   BY MR. GARBUS:

      16        Q    Do you know whether there have been any

      17   instances where people have gone in with

      18   camcorders and then taken the material from the

      19   camcorder and translated it to the internet?

      20        MR. COOPER:  Ambiguous.

      21        THE WITNESS:  I don't know.

      22   BY MR. GARBUS:

      23        Q    Do you know of instances where movies

      24   have been shown on the internet where they have --

      25   very shortly after the release of the film and


                                                                93


       1   before DVDs or videos of that film have made

       2   available to the public?

       3        MR. COOPER:  Would you read back the

       4   question, please?

       5             (The reporter read the record as

       6   requested.)

       7        MR. COOPER:  Ambiguous.

       8   BY MR. GARBUS:

       9        Q    Go ahead, sir.

      10        A    I don't know.

      11        Q    Has any attempt been made to stop the

      12   New York Times from posting any linking sites, to

      13   your knowledge?

      14        MR. COOPER:  Ambiguous.

      15        THE WITNESS:  I don't know.

      16   BY MR. GARBUS:

      17        Q    Have any attempts been made against any

      18   universities to stop them from posting DECSS?

      19        MR. COOPER:  Ambiguous.

      20        THE WITNESS:  I don't know.

      21   BY MR. GARBUS:

      22        Q    Do you know anything about how this

      23   particular defendant was the defendant arrived at

      24   in the New York case?

      25        MR. COOPER:  Unintelligible.  Asked and


                                                                94


       1   answered to the extent you're asking whether this

       2   witness knows how this defendant was selected.

       3   BY MR. GARBUS:

       4        Q    Go ahead, sir?

       5        A    I don't know.

       6        Q    When for any first time did you learn

       7   Mr. Goldstein's name?

       8        MR. COOPER:  Assumes facts not in evidence.

       9        THE WITNESS:  I think when you named him

      10   today.

      11   BY MR. GARBUS:

      12        Q    If you circumvent or de-encrypt to make

      13   Fair Use, is that MPA policy as being against the

      14   law?

      15        MR. COOPER:  Would you read back the

      16   question, please?

      17             (The reporter read the record as

      18   requested.)

      19        MR. COOPER:  It's compound.  Assumes facts

      20   not in evidence.  It's an incomplete hypothetical

      21   and calls for a legal conclusion.

      22   BY MR. GARBUS:

      23        Q    Go ahead.  Sir.

      24        A    I can't draw a legal conclusion.

      25        Q    Does the MPA have a policy that says


                                                                95


       1   that any time circumvention or encryption --

       2   de-encryption is used that that is not Fair Use?

       3        MR. COOPER:  Ambiguous.  Calls for a legal

       4   conclusion.

       5        THE WITNESS:  I can't draw a legal

       6   conclusion.

       7   BY MR. GARBUS:

       8        Q    You don't know the answer to that.  So

       9   you don't know whether or not there are some

      10   proper and appropriate uses of circumvention and

      11   encryption?

      12        MR. COOPER:  Ambiguous.  Calls for a legal

      13   conclusion.

      14   BY MR. GARBUS:

      15        Q    Go ahead, sir.

      16        A    I can't draw a legal conclusion.

      17        Q    So you don't know the answer to that?

      18        A    No.  As I said, I'm not a lawyer.  I

      19   can't misspeak it.

      20        Q    Did you testify before congress on the

      21   scope of Fair Use?

      22        MR. COOPER:  Ambiguous.

      23        THE WITNESS:  I may have.  I don't recall.

      24   BY MR. GARBUS:

      25                        Confidential


                                                                96


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       5

       6

       7

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      10

      11

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      18

      19

      20

      21

      22   BY MR. GARBUS:

      23        Q    Does the MPA -- by the way, let me show

      24   you the letter previously marked as exhibit 25, to

      25   which you're a signatory.


                                                                97


       1        MR. COOPER:  Which one is that?

       2        THE WITNESS:  Is that David O. Carson?

       3        MR. GARBUS:  Right.

       4        MR. COOPER:  I think you said you were going

       5   to identify them for the record as you referred to

       6   them.

       7        MR. GARBUS:  It's the March 31, 2000 letter

       8   by you to David O. Carson -- by you and other

       9   people.  You are signatory.

      10        MR. COOPER:  I'll note for the record,

      11   there's no signature on the copy that I have.

      12        MR. GARBUS:  This is a document that was

      13   turned over to the by the MPAA.  You would have to

      14   ask the MPAA if there is any more information.

      15        THE WITNESS:  I don't understand how this --

      16   I see.  This is not a MPAA document.  This is a

      17   document of all these different companies.

      18        MR. COOPER:  If he has any questions about it

      19   he can ask you.

      20   BY MR. GARBUS:

      21        Q    I direct your attention to page two, the

      22   sixth line.

      23        A    While the associations?

      24        Q    Yes.  Tell me what the disagreements

      25   are.


                                                                98


       1        MR. COOPER:  You talking about the

       2   disagreements referred to in the first cause?

       3        MR. GARBUS:  Yes.  About Fair Use issues and

       4   the proper scope of exceptions to the anti

       5   circumvention provisions, two separate issues.

       6        THE WITNESS:  I don't know.

       7   BY MR. GARBUS:

       8        Q    Do you know what the MPAA's position is

       9   with respect to the proper scope of exceptions to

      10   the anti circumvention provision?

      11        MR. COOPER:  Read the question, please.

      12             (The reporter read the record as

      13   requested.)

      14        MR. COOPER:  Assumes facts not in evidence.

      15        THE WITNESS:  I don't know.

      16   BY MR. GARBUS:

      17        Q    You said you never heard -- go to the

      18   front of the page.

      19        A    I never heard what?

      20        Q    Let's go to the front of the document.

      21        MR. COOPER:  He's changing his question.

      22        THE WITNESS:  I'm sorry.  Okay.

      23   BY MR. GARBUS:

      24        Q    Have you ever heard -- you say you never

      25   heard of the DVD CCA.  Is that right?


                                                                99


       1        MR. COOPER:  His testimony has been, in your

       2   frequent questions on the subject, that he had not

       3   heard of it.

       4   BY MR. GARBUS:

       5        Q    You never heard of John Hoy, who's the

       6   heads of the --

       7        A    John who?

       8        Q    Hoy, H-O-Y?

       9        A    No.

      10        Q    Take a look at page two of the letter.

      11        A    What line?

      12        Q    The bottom left.  Is the DVD CCA a

      13   signatory to the same letter to which you're a

      14   signatory?

      15        MR. COOPER:  The document reflects the DVD

      16   Copy Control Association.

      17   BY MR. GARBUS:

      18        Q    Do you know who they are?

      19        A    I've never met Mr. Hoy, to my knowledge.

      20        Q    You never heard of Mr. Hoy's name until

      21   I mentioned it today?

      22        A    No.

      23        Q    Have you ever signed to your knowledge

      24   any other joint documents with Mr. Hoy?

      25        MR. COOPER:  Assumes facts not in evidence.


                                                                100


       1        THE WITNESS:  I don't recall.

       2   BY MR. GARBUS:

       3        Q    To your knowledge does the MPAA have any

       4   ongoing relationship with the DVD CCA other than

       5   to sign joint letters?

       6        MR. COOPER:  Assuming facts not in evidence.

       7        THE WITNESS:  I don't know.

       8   BY MR. GARBUS:

       9        Q    Do you know if there was a meeting in

      10   December between representatives of the MPAA and

      11   the DVD CCA, in December of 1999 in California?

      12        A    No, I don't recall such a meeting.

      13        Q    Did you -- have you looked at any of the

      14   depositions in this case?

      15        A    No.

      16        Q    Have you spoken to Mr. Jacobson before

      17   you came to this deposition?

      18        A    No.

      19        Q    What documents did you read prior to

      20   coming into this room to refresh your

      21   recollection?

      22        A    The Documents supplied me by my lawyers.

      23        Q    Which document was that?

      24        A    They were -- the documents were my

      25   testimony from five or six article -- five or six


                                                                101


       1   testimonies that I offered before congress, public

       2   documents.

       3        Q    Was that all?

       4        A    That's all.

       5        MR. GARBUS:  May I have copies of what he saw

       6   this morning?

       7        MR. COOPER:  He didn't say he saw them this

       8   morning.  Let's just keep the record clear.

       9   BY MR. GARBUS:

      10        Q    When did you say you saw them?

      11        A    I saw them last week I think.

      12        MR. GARBUS:  May I have copies of those

      13   documents?

      14        MR. COOPER:  I'll take it under advisement.

      15        THE WITNESS:  I have no idea.  I don't

      16   remember what they were.

      17   BY MR. GARBUS:

      18        Q    All you saw were five or six public

      19   statement that you made?

      20        A    As I recall.

      21        Q    Did you see any internal documents of

      22   the MPAA?

      23        A    I don't recall seeing any of those.

      24        Q    Let me direct your attention to exhibit

      25   23, which is your statement of October 28, 1999.


                                                                102


       1        A    This is October 28, 1999.  All right.

       2        Q    Right.  And I direct your attention to

       3   page two, last paragraph.

       4        A    Beginning with what?

       5        Q    When piracy flourishes.  If you see in

       6   the middle of the paragraph you say, "Piracy is a

       7   $2 billion a year worldwide problem and growing?"

       8        A    Uh-huh.

       9        Q    Can you tell me if you have any

      10   information about whether one nickel of that

      11   piracy loss relates to DECSS?

      12        A    I don't know.

      13        Q    Has anyone at the MPAA to your knowledge

      14   determined whether there's been a nickel loss due

      15   to -- or any loss, a penny loss, due to DECSS?

      16        MR. COOPER:  Ambiguous.  Calls for a legal

      17   conclusion.  And I admonish the witness not to

      18   include any information in his answer that comes

      19   from attorney-client communications.

      20        THE WITNESS:  I'm not aware.

      21   BY MR. GARBUS:

      22        Q    Have you ever seen a any documents that

      23   break down -- internal MPAA documents that break

      24   down how these loss figures are arrived at?  In

      25   other words, the sources of the loss?


                                                                103


       1        MR. COOPER:  That's a reference to the loss

       2   figures set forth in exhibit 23?

       3        MR. GARBUS:  Yes.

       4        THE WITNESS:  I don't recall.

       5   BY MR. GARBUS:

       6        Q    Doesn't the MPAA make a breakdown?  Is

       7   it your testimony that you don't recall seeing it

       8   or that the MPAA doesn't make breakdowns?

       9        MR. COOPER:  Is that the end of your

      10   question?

      11        MR. GARBUS:  Yes.

      12        MR. COOPER:  You're asking whether the MPAA

      13   has a practice of making breakdowns with respect

      14   to this reference in this document?

      15        MR. GARBUS:  With respect to piracy losses,

      16   generally.

      17        MR. COOPER:  Well, this is one of them but

      18   also in general?

      19        THE WITNESS:  I don't recall the format of

      20   this at all.

      21   BY MR. GARBUS:

      22        Q    Have you ever seen, let's say, an

      23   estimate of how much is lost to camcorders?

      24        MR. COOPER:  As distinct from other forms of

      25   piracy?


                                                                104


       1        MR. GARBUS:  Right.

       2        THE WITNESS:  I don't recall.

       3   BY MR. GARBUS:

       4        Q    Has anyone ever told you that they ever

       5   learned -- do you know what a DVD burner is?

       6        A    I'm not sure.

       7        Q    Do you have any understanding of it at

       8   all?

       9        A    I've heard the term, but I really don't

      10   know what it means.

      11        Q    Do you know whether a DVD burner has

      12   ever been used to make a pirated copy of a DVD?

      13        MR. COOPER:  Calls for speculation.  You're

      14   asking the witness now to use a term that he's not

      15   familiar with.  If you want to give him a

      16   definition he might be able to answer the question

      17   you intend.

      18        MR. GARBUS:  May I hear the objection?

      19             (The reporter read the record as

      20   requested.)

      21   BY MR. GARBUS:

      22        Q    Do you agree with your counsel's

      23   statement:  That I would have to give you a

      24   definition so that you could answer the question?

      25        A    Yeah.  Why don't you give me a


                                                                105


       1   definition?

       2        MR. GARBUS:  All right.  Now, let's mark as

       3   exhibit 28 a letter signed by you to Senator Diana

       4   Finestein.

       5             (Valenti Exhibit 28 identified.)

       6   BY MR. GARBUS:

       7        Q    I direct your attention --

       8        MR. COOPER:  The witness doesn't have the

       9   document yet.

      10   BY MR. GARBUS:

      11        Q    By the way, do you have a computer at

      12   home?

      13        A    Yes.

      14        Q    Do you use search engines?

      15        A    No.

      16        Q    Do you use linking?

      17        MR. COOPER:  Ambiguous.

      18        THE WITNESS:  No, I don't.

      19   BY MR. GARBUS:

      20        Q    Do you go on line?

      21        A    E-mail.

      22        Q    Do you surf the net, as that expression

      23   goes?

      24        A    No.  I read.

      25        Q    So do I.  Starting the sentence, "Just a


                                                                106


       1   few key strokes," if you'll take a look at it, the

       2   second paragraph.

       3        A    What page are you on?

       4        Q    I'm on the first page -- second page of

       5   the April 14th letter.

       6        A    I got an April 15 page.  Turn it over.

       7        Q    That's the backup.  In other words,

       8   April 15?

       9        MR. COOPER:  Let's take it slowly.

      10   BY MR. GARBUS:

      11        Q    Page two of the Diana Finestein letter

      12   written by you and others.

      13        A    What I want to do, counsel, if you will

      14   allow me.  It's Diane.  If you say Diana I don't

      15   think that she would like that very much.

      16        MR. GARBUS:  I'll say Diane.

      17        MR. COOPER:  I would like the witness to take

      18   a few moments to read the document, all three

      19   pages, so that he can familiarize himself with it.

      20        VIDEOGRAPHER:  Changing videotape two.  The

      21   time is 10:55:20 seconds.

      22             (Recess.)

      23        VIDEOGRAPHER:  This is the head of videotape

      24   two continuing the video deposition of Mr. Jack

      25   Valenti.  We're on the record.  The time is 11:00


                                                                107


       1   o'clock 47 seconds.

       2   BY MR. GARBUS:

       3        Q    Going to the statement starring with,

       4   "Just a few key strokes on an ordinary household

       5   computer will enable people throughout --

       6        A    Excuse me.  Where are you reading from?

       7   I'm sorry.

       8        Q    The bottom, more or less, of the second

       9   paragraph.

      10        MR. COOPER:  Of page two of the exhibit.

      11        MR. GARBUS:  Of the exhibit, but it's page

      12   one.

      13        THE WITNESS:  Just a few key strokes?

      14        MR. GARBUS:  Yes.

      15        THE WITNESS:  All right.  Go ahead.

      16   BY MR. GARBUS:

      17        Q    "On an ordinary household computer will

      18   enable people throughout the globe to make perfect

      19   copies."

      20             Have you ever done that?

      21        A    No.

      22        Q    When you say will make perfect copies,

      23   have you ever seen perfect copies made on a

      24   household computer of any materials?

      25        MR. COOPER:  Ambiguous.  Overbroad.


                                                                108


       1        THE WITNESS:  Have I personally seen that?

       2   BY MR. GARBUS:

       3        Q    Who gave you the information for that

       4   sentence?

       5        MR. COOPER:  Assumes facts not in evidence.

       6        THE WITNESS:  I would assume it's somebody

       7   who's technically aware in MPA, but I don't know

       8   who.

       9   BY MR. GARBUS:

      10        Q    The sentence goes on to say, "To make

      11   perfect copies whether it is the first copy or the

      12   thousandth of a copy."

      13             Did you make -- again I presume you got

      14   that information from someone who is more

      15   technically aware.  Is that right?

      16        MR. COOPER:  Assumes facts not in evidence,

      17   you're asking the witness whether he recalls where

      18   that information came from.

      19        MR. GARBUS:  Yes.

      20        THE WITNESS:  I'm sure it came from some

      21   technical expert but I don't know who.

      22   BY MR. GARBUS:

      23        Q    Do you know if that tech expert had ever

      24   made any copies off a computer?

      25        MR. COOPER:  Calls for speculation.  He


                                                                109


       1   doesn't even know who it was.

       2   BY MR. GARBUS:

       3        Q    Go ahead, sir.

       4        A    I don't know.

       5        Q    Do you know if he made ten copies?  1000

       6   copies?

       7        MR. COOPER:  That's absurd.

       8        THE WITNESS:  I don't.

       9   BY MR. GARBUS:

      10        Q    Did anybody tell you they had?

      11        MR. COOPER:  Had what?

      12        THE WITNESS:  Had what?

      13   BY MR. GARBUS:

      14        Q    Made copies or perfect copies from

      15   information off a computer?

      16        A    I'm not a -- I don't know.

      17        Q    Is it your recollection that it was

      18   somebody within the MPAA who told you that?

      19        MR. COOPER:  You're now talking about the

      20   phrase that you've been quoting from that's

      21   contained in the letter?

      22        MR. GARBUS:  Yeah.  Let's mark as exhibit 29

      23   something written by Mr. Valenti allegedly for the

      24   Los Angeles Times on January 30th.

      25             (Valenti Exhibit 29 identified.)


                                                                110


       1        MR. GARBUS:  Mr. Cooper, with respect to a

       2   document you've given us of October 28, 199, let

       3   me just tell you we're missing page three.  So if

       4   you could make that available to us.

       5        MR. COOPER:  I'll need more information than

       6   you've just given me.

       7        MR. GARBUS:  Exhibit 23 is the statement by

       8   Jack Valenti.  It's between your marked pages 8386

       9   and 87.  There's a page missing.

      10   BY MR. GARBUS:

      11

      12                        Confidential

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25


                                                                111


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                                                                116


       1                        Confidential

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       3

       4        Q    I direct your attention to the last

       5   sentence of the next to last paragraph, beginning

       6   with, "The industry's filing of a claim against

       7   the internet hackers is the first major test of

       8   whether the congressional guard dog has any

       9   teeth."

      10             We're talking about the DMCA.  This

      11   namely being the first enforcement or significant

      12   enforcement of the DMCA?

      13        A    Yes.

      14        Q    Do you want a break?

      15        A    This is fine.  Go ahead.

      16        Q    You want something more to drink?

      17   Something more to drink?

      18        A    This is fine.  Thank you, counselor.

      19        Q    Tell me the significance.  You say, "The

      20   filing of a claim is the first major test."  What

      21   is the significance of that test?  To whom does

      22   this case have significance?

      23        A    Well, I think that if we win this case

      24   it will certainly send a strong message to anybody

      25   else that's trying to illegally decrypt.


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       1        Q    So this will effect or can save the life

       2   of the DVD program.  Is that right?  In other

       3   words, it has enormous significance.

       4             The DVD business is a multi million

       5   dollar business, and the winning or losing of this

       6   case affects that business.  Is that right?

       7        MR. COOPER:  It calls for a conclusion and

       8   lacks foundation.

       9   BY MR. GARBUS:

      10        Q    Go ahead, sir.

      11        MR. COOPER:  In believe what you're inviting

      12   the witness to do is to testify about the effect

      13   of the conclusion of this case on the entire DVD

      14   business.  Is that what you mean to be asking?

      15        MR. GARBUS:  Yes.

      16        MR. COOPER:  Lacks foundation.  Calls for a

      17   legal conclusion.

      18        THE WITNESS:  I think this case has to do

      19   with whether or not a congressional law is

      20   meaningful or not and whether or not people can

      21   get away with circumventing encryption, and that's

      22   what the DECSS does.  So to that extent I think

      23   it's significant.

      24   BY MR. GARBUS:

      25        Q    It will affect the entire industry.  Is


                                                                118


       1   that right?

       2        MR. COOPER:  He's answered the question.  Are

       3   you asking now whether the case outcome will

       4   affect the entire industry?

       5        MR. GARBUS:  Yes.

       6        MR. COOPER:  I think it's the same question

       7   you asked before.

       8   BY MR. GARBUS:

       9        Q    Go ahead, sir.

      10        A    It will allow us to protect what we own.

      11        Q    Are there any other technologies that

      12   you know of that are now being researched or

      13   studied or put into use that can protect DVDs?

      14        MR. COOPER:  Talking about research by the

      15   MPAA or its member companies?

      16        MR. GARBUS:  Yes.

      17        MR. COOPER:  That's yes-or-no question.

      18        THE WITNESS:  No, I don't know of any.

      19   BY MR. GARBUS:

      20        Q    Do you know of any entities that are

      21   conducts research of any kind?

      22        A    Do I personally know of anybody?

      23        Q    Yes.

      24        MR. COOPER:  Research of what kind?

      25        MR. GARBUS:  Security.


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       1        MR. COOPER:  What do you mean, research?

       2        MR. GARBUS:  Research relating to encryption

       3   codes or ways of secures properties like DVDs or

       4   records music for the copywrite holders.

       5        THE WITNESS:  I'm sure there are a number of

       6   companies out there that are doing this kind of

       7   research.

       8   BY MR. GARBUS:

       9        Q    Have you ever heard of CSS2?

      10        A    CSS2?  No.

      11        Q    Do you know whether or not there's not

      12   another encryption code ready to go if this one

      13   proves to be insufficient?

      14        MR. COOPER:  Ambiguous.  Lacks foundation.

      15   The witness has already testified he's not aware

      16   of substitute technology.

      17        THE WITNESS:  I don't know.

      18   BY MR. GARBUS:

      19        Q    Were you told or was anyone at the MPAA

      20   told the first time DVDs came out that it was just

      21   a matter of time until the encryption code was

      22   broken?

      23        MR. COOPER:  Calls for speculation.

      24        THE WITNESS:  I don't recall.

      25   BY MR. GARBUS:


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       1        Q    Did anybody tell you that this

       2   encryption code was immune from being broken?

       3        A    I don't recall.

       4

       5

       6                        Confidential

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       9

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       1                        Confidential

       2

       3

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       5

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       7

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      10

      11

      12

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      14

      15

      16

      17

      18        MR. GARBUS:  Let's wait until we get -- there

      19   are documents we've asked to be copied.  If we can

      20   just wait for those documents.

      21        MR. COOPER:  Why don't we go off the record.

      22   I have no idea how long ago they went out for

      23   copying or when they will be back.

      24        VIDEOGRAPHER:  Off the record.  The time is

      25   11:17 and 30 seconds.


                                                                122


       1             (Recess.)

       2        VIDEOGRAPHER:  We're back on the record.  The

       3   time is 11:25 and 58 seconds.

       4        MR. GARBUS:  Mr. Valenti, I mindful of your

       5   condition.  So I'm going to try and keep it short.

       6             Can we mark the following documents?

       7   And this I hope will be the last document we'll

       8   talk about today?

       9             (Valenti Exhibit 30 identified.)

      10   BY MR. GARBUS:

      11        Q    I direct your attention to exhibit 30,

      12   second paragraph.

      13        MR. COOPER:  Give me witness an opportunity

      14   to review the document.

      15        MR. GARBUS:  Sure.

      16        THE WITNESS:  Which one are we looking at?

      17   I'm sorry.

      18   BY MR. GARBUS:

      19        Q    30.

      20        A    I've got it right here.  "Valenti warns

      21   the dangers?"

      22        Q    Yes.

      23        A    What do you want me to look at?

      24        Q    Second paragraph.  "Valenti told the

      25   committee," second sentence.  "The thousandth copy


                                                                123


       1   of a digitized movie is as pure as the original."

       2             Have you ever seen the thousandth copy

       3   of a digitized movie?

       4        A    No.

       5                        Confidential

       6

       7

       8

       9

      10 

      11 

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       1                        Confidential

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       1                         Confidential

       2 

       3 

       4 

       5 

       6 

       7 

       8 

       9 

      10        Q    Where do you get that information from?

      11        A    I get the information from anti piracy

      12   people, from member companies who locate their

      13   films on the internet.

      14        Q    These are people that report to you?

      15        A    Member companies don't report to me.

      16        Q    The people within the MPAA report to

      17   you?

      18        A    Correct.

      19        Q    Has anyone ever told you that DECSS or

      20   that process was used with respect to any of those

      21   films?

      22        MR. COOPER:  By that process you mean DECSS

      23   was used to create any of the post-theatrical

      24   release pirated films?

      25        MR. GARBUS:  Yes.


                                                                126


       1        MR. COOPER:  Exclude attorney-client

       2   communications in your answer.

       3        THE WITNESS:  I don't recall.

       4   BY MR. GARBUS:

       5        Q    Do you recall when you testified, as is

       6   referred to in that document, "Playing a brief

       7   clip from the MGM film Stigmata?"  And this is

       8   referred to in the fourth paragraph.

       9        A    Uh-huh.  Yes.

      10        Q    Do you know whether anyone ever told you

      11   that film originally came through the use of

      12   DECSS?

      13        MR. COOPER:  Ambiguous.  Whether the film

      14   Stigmata came through the use of DECSS?

      15   BY MR. GARBUS:

      16        Q    Whether the product that you saw had

      17   been on a DVD that had been decrypted through

      18   DECSS?

      19        A    I don't remember.  Don't recall.

      20        Q    Directing your attention to document

      21   number 32, the next to last paragraph.

      22        MR. COOPER:  Do you want him to review the

      23   rest of the document to see what it is?

      24        MR. GARBUS:  I don't think he needs to, but

      25   if he wants to he should.


                                                                127


       1        THE WITNESS:  This is 32.

       2   BY MR. GARBUS:

       3        Q    Next to last paragraph.

       4        A    Beginning with what?  The protection of

       5   American's creative works?

       6        MR. COOPER:  He's drawing your attention to

       7   page two.  Talking the September 10, 1998

       8   document?

       9        MR. GARBUS:  Yes.

      10        MR. COOPER:  That's 31.

      11   BY MR. GARBUS:

      12        Q    So look at 31, the next to last

      13   paragraph.

      14        MR. COOPER:  On page two?

      15        MR. GARBUS:  Yes.

      16        THE WITNESS:  "Valenti also noted threat."

      17   Is that what you mean?

      18   BY MR. GARBUS:

      19        Q    Yes.  Now, you say you've seen pirated

      20   copies of films as current as Milan, Steve

      21   Speilberg's landmark epic, Saving Private Ryan.

      22             Did anyone ever tell you that any of

      23   those came from DECSS through the de-encryption of

      24   DVDs through DECSS?

      25        MR. COOPER:  Give him a moment, please, to


                                                                128


       1   review the paragraph you've now drawn his

       2   attention.  Then we'll ask that the question be

       3   read back.

       4        THE WITNESS:  I don't recall.

       5   BY MR. GARBUS:

       6        Q    Have you ever been told that any film

       7   that you have seen in the last five years, pirated

       8   or non-pirated, ever came from a DVD that had been

       9   de-encrypted through DECSS?

      10        MR. COOPER:  Assumes facts not in evidence.

      11        THE WITNESS:  I don't know.

      12   BY MR. GARBUS:

      13        Q    To your knowledge, has anyone at the

      14   MPAA ever been told or has ever seen a film,

      15   pirated or non-pirated, that has come from a DVD

      16   through DECSS?

      17        A    I don't recall.

      18        Q    To your knowledge, has anyone at a major

      19   studio that comprises the MPAA ever seen a film,

      20   pirated or non-pirated, that allegedly came from a

      21   DVD that was encrypted through a DECSS?

      22        MR. COOPER:  Lacks foundation.

      23        THE WITNESS:  I don't recall.

      24   BY MR. GARBUS:

      25        Q    To your knowledge, aside from the movie


                                                                129


       1   studios, aside from the MPAA, do you know of one

       2   person who has ever seen a film that has been

       3   de-encrypted from a DVD through DECSS?  One

       4   person?

       5        MR. COOPER:  Exclude in your answer any

       6   information you have from counsel.

       7        THE WITNESS:  I don't recall.

       8        MR. GARBUS:  Thank you very much.  That's the

       9   end of the deposition.

      10        THE WITNESS:  Thank you, Mr. Garbus.

      11   Appreciate it very much.

      12        MR. COOPER:  Before we go off the record, let

      13   me just note that the transcript and video

      14   cassette record of this deposition is covered by

      15   the protective order in effect in this lawsuit;

      16   that we reserve our right to designate any portion

      17   of the transcript and video cassette as

      18   confidential or highly confidential within the

      19   terms of that protective order and that no portion

      20   of the transcript or the video cassette should be

      21   released or utilized for any purpose other than in

      22   accordance with that until such time as we've had

      23   our opportunity to make our designation.

      24        MR. GARBUS:  Let me just make one thing

      25   clear.  It's the way we've been closing all


                                                                130


       1   depositions, and I want to be sure we understand

       2   it here.  That there are many documents we have

       3   not gotten from them film studios, many documents

       4   we have not gotten from the MPAA.  Mr. Cooper has

       5   said he is going to give us further documents now.

       6             This deposition is also subject to

       7   rulings.  So if those documents require any

       8   further deposition we shall contact the Plaintiff

       9   in attempt to do that.  If any of the rulings

      10   sought here in our favor we shall continue the

      11   depositions.  And if any documents come in from

      12   the other studios -- thus far we have not received

      13   documents from six of the studios.  We have not

      14   seen the Schumann report.  Seven studios.  We have

      15   not seen any of the internal documents of the MPAA

      16   that led to the Schumann affidavit or any of the

      17   affidavits -- if any of those require the

      18   continuation of the deposition we shall try and

      19   advise Mr. Cooper as soon as possible.

      20        MR. COOPER:  Just so the record is clear, I

      21   don't believe you're entitled to a great many of

      22   those documents.  You have insisted on pursuing

      23   Mr. Valenti's deposition despite the fact, as I

      24   believe it's plain, that Mr. Valenti was not a

      25   necessary witness in this matter.  I certainly


                                                                131


       1   would oppose any attempt to bring Mr. Valenti back

       2   for further needless imposition on his time in

       3   order to seek further deposition from him at any

       4   point.

       5        MR. GARBUS:  Thank you.  I think we've both

       6   stated our position.

       7        VIDEOGRAPHER:  Deposition is adjourned or

       8   concluded.  The time is 11:37:43.

       9     (Whereupon, at 11:37 a.m., the deposition was

      10                      concluded.)

      11              ----------------------------

      12                      JACK VALENTI

      13

      14

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25


                                                                132


       1                    C O N T E N T S

       2   WITNESS                               EXAMINATION

       3   JACK VALENTI

       4        by       Mr. Garbus                 6

       5                    E X H I B I T S

       6   EXHIBIT NUMBER                         IDENTIFIED

       7   Valenti 23 10/28/98 Valenti Statement    44

       8   Valenti 24 Valenti/Tang Letter 6/30/99   44

       9   Valenti 25 Valenti/Carson Letter 3/31/00 44

      10   Valenti 26 MPA Document 3/30/2000        44

      11   Valenti 27 "Blind Copies" Document       71

      12   Valenti 28 Valenti/Finestein Letter      105

      13   Valenti 29 Valenti Statement 1/30        109

      14   Valenti 30 Article                       122

      15

      16

      17

      18

      19

      20

      21

      22

      23

      24

      25





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