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TUCoPS :: Cyber Law :: 0721-t~1.txt

MPAA vs. 2600 - Trial Day 5, July 21, 2000




                                                                816



   1   UNITED STATES DISTRICT COURT
       SOUTHERN DISTRICT OF NEW YORK
   2   ------------------------------x

   3   UNIVERSAL CITY STUDIOS, INC.,
       ]et al,
   4
                      Plaintiffs,
   5
                  v.                           00 Civ. 277 (LAK)
   6
       SHAWN C. REIMERDES, et al,
   7
                      Defendants.
   8
       ------------------------------x
   9
                                               July 21, 2000
  10                                           9:00 a.m.

  11   Before:

  12                       HON. LEWIS A. KAPLAN,

  13                                           District Judge

  14                            APPEARANCES

  15   PROSKAUER, ROSE, L.L.P.
            Attorneys for Plaintiffs
  16   BY:  LEON P. GOLD
            CHARLES S. SIMS
  17        SCOTT P. COOPER

  18   FRANKFURT, GARBUS, KLEIN & SELZ
            Attorneys for Defendants
  19   BY:  MARTIN GARBUS
            ERNEST HERNSTADT
  20        DAVID ATLAS

  21

  22

  23

  24

  25



                                                                817



   1            (Trial resumed)

   2            THE COURT:  A couple of preliminary things on my list

   3   before we get started.  First of all, have you been able to

   4   reach agreement or otherwise come to a view on the specific

   5   findings of the Microsoft case that I asked whether you would

   6   stipulate to?

   7            MR. SIMS:  Your Honor we haven't yet.  We will over

   8   the weekend.

   9            THE COURT:  Just so I am clear, if I don't hear an

  10   objection on the specific findings that I have identified, I

  11   will take judicial notice of them and the deadline for any

  12   objections is 11 o'clock on Monday.  As I say, they are in the

  13   nature of definitions and I --

  14            MR. GARBER:  I can't see why it would be a problem?

  15            MR. SIMS:  I am advised we have gotten to it, we have

  16   no objection.

  17            THE COURT:  You might consider also because I will be

  18   looking further at that opinion for other things that might be

  19   useful by way of background here, to see whether there is a

  20   description in it of Linux that you can agree on as to what it

  21   is, what its relationship to Microsoft windows is.  You may be

  22   able to do that, you may be able to save time.  OK.

  23            The second item on my list is that I am going to

  24   alert you to an issue I thought I had because I am going to

  25   ask for a brief on this if by the end of the trial I think it



                                                                818



   1   is relevant and you might as well start thinking about it.  If

   2   I am understanding at least certain of the arguments here, the

   3   defendants are arguing that there are encryption utilities

   4   other than DeCSS that would decrypt CSS protected DVDs, that

   5   there is no proof, direct or otherwise -- as to direct I think

   6   it is stipulated -- that any particular decrypted movie that

   7   may have been offered over the Internet or on a file-sharing

   8   utility or whatever other relevant modes of distribution may

   9   be, that was decrypted with DeCSS as opposed to some other

  10   decryption utility and what the defendants I think would ask

  11   me to conclude from that is that the plaintiffs therefore

  12   can't have had any injury actually or threatened by reason of

  13   these defendants' actions.

  14            Just by way of a parenthetical digression, I am well

  15   aware that the issue of the extent to which there is

  16   sufficient proof that there are in fact decrypted movies

  17   available over the Internet has not been decided and we are

  18   going to have further discussion about that.  My question

  19   presupposes, just on a hypothetical basis, if there is

  20   adequate proof to find that there are such movies out there.

  21            The thought that occurred to me last night and on

  22   which I may want briefs is whether the burden of proving that

  23   whatever decryptions are out there came from the defendant or

  24   more broadly DeCSS is on the plaintiff as distinguished from

  25   the burden being on the defendant to prove that they did not.



                                                                819



   1   The case that prompted me to think about that, I know we all

   2   read this in law school a long time ago, Summers v. Tyce,

   3   decided by the California Supreme Court in 1948 which seems at

   4   least superficially to be analogous to this problem.

   5            The case involved a group of hunters out hunting with

   6   shotguns, two hunters fired simultaneously.  One shotgun

   7   pellet hit the plaintiff.  Because they were shotgun pellets

   8   as opposed to bullets out of a rifled weapon, it was

   9   impossible to tell which shotgun the pellet came from.  The

  10   California Supreme Court said that the burden of proof was on

  11   the defendants to show that their shotgun did not discharge

  12   the bullet that hit the plaintiff and in the absence of such

  13   proof, everybody who fired a shotgun at that time was jointly

  14   and severally liable.

  15            I am not inviting argument on that this morning, but

  16   I wanted you to know that I am thinking about that and to give

  17   you an opportunity to address it at the appropriate time.

  18            OK.  That said -- and I should add there is a lot of

  19   development in the law of products liability, I am sure you

  20   all the know the case Summers v. Tyce as its starting point

  21   and some of you may know that.  Let's continue where we are.

  22            Mr. Corley, come on up.  You are still under owes.

  23            MR. GARBER:  We had that open question before you

  24   concerning certain aspects of Mr. Corley's testimony.  I

  25   presume we are not getting into it until such time as a



                                                                820



   1   further discussion of the court.

   2            THE COURT:  Absolutely.  Absolutely.  If it is

   3   something you are going to want to go into Mr. Gold, tell me

   4   you need to talk to me privately with Mr. Garbus.

   5            MR. GOLD:  Thank you, your Honor.

   6   CROSS-EXAMINATION

   7   BY MR. GOLD:

   8   Q.  Good morning, Mr. Goldstein.

   9   A.  Good morning.

  10   Q.  We left off yesterday discussing a statement that you had

  11   made and I am going to give it to you again.  Did you not at

  12   one point in time, after October of '99, state that DeCSS was

  13   a free DVD decoder that allows people to copy DVDs?

  14   A.  That was a statement that was made on our web site which I

  15   did not write but I take responsibility for.  It was at some

  16   point after it was published on our web site I believe in

  17   November that we realized that it was a lot more complicated

  18   than just that and we -- future writings on the web site

  19   reflected this.

  20   Q.  What do you mean when you say it was a lot more

  21   complicated than that?

  22   A.  It wasn't simply a bit of code that allowed someone to

  23   copy DVDs.  At that point in time, I wasn't even that familiar

  24   with the technology.  I wasn't aware of how the encryption

  25   worked, I wasn't aware of the extent of existing DVD piracy



                                                                821



   1   and wasn't aware that simply copying a DVD was a trivial thing

   2   that had been done for years, so I misread the actual facts of

   3   the case.  When I realized it was more complicated than what

   4   we had reported, the case actually became very much more

   5   interesting to me.

   6   Q.  Did you discover after you first made the statement we

   7   have just referred to that it was incorrect?

   8   A.  Did I discover -- first of all, I didn't make the

   9   statement.  I discovered after looking at various public

  10   forums, discussions about the subject, that this was not a

  11   case about copying.  It had nothing to do with copying.  It

  12   was about something called access control which was, prior to

  13   November, I had been unfamiliar with that.

  14            THE COURT:  The question, Mr. Corley, wasn't about

  15   what this case was about.  The question was about the

  16   statement that appeared on your web site.

  17            THE WITNESS:  I am sorry.  Not the case but what was

  18   going on at the time, the people whose web sites were being

  19   shut down, the story itself, that apparently was not about

  20   copying DVDs as we had initially stated.

  21   Q.  Let me ask you, Mr. Goldstein, is it not true that DeCSS

  22   is a free DVD decoder that allows people to copy DVDs?

  23   A.  I believe it allows the data to be copied to a hard drive

  24   at some point during its operation as do many other utilities

  25   but I believe that it can do that if you write it in a



                                                                822



   1   particular way.

   2   Q.  Then the prior statement you made was correct, I guess?

   3   A.  Not entirely because it did not exist for the purpose of

   4   copying DVDs.  One would not run that program to copy DVDs.

   5   Q.  But you said that it was a free DVD decoder that allows

   6   people to copy DVDs and if I understand your testimony this

   7   morning, you are saying the same thing?

   8   A.  It allows you to do that but that's not the purpose of it.

   9   Again, I am looking at this from a journalistic perspective.

  10   Q.  I am not asking you the purpose, I am asking you what it

  11   does.

  12            MR. GARBER:  I will object to Mr. Gold cutting off

  13   the witness' answer.

  14            THE COURT:  The witness is being unresponsive.

  15   A.  I am explaining it as best I can.  Basically the program

  16   exists to allow someone to bypass the CSS encryption on the

  17   DVD.  Now, whether that's the purpose of that is to copy a

  18   DVD, that's something that we initially didn't understand

  19   properly and I realize, I realized in November that it was --

  20   that was not the case at all, that it was about defeating

  21   access control, being able to have a player that worked under

  22   the Linux operating system among other things.

  23   Q.  You began posting DeCSS on your web site in November of

  24   1999?

  25   A.  That's correct.



                                                                823



   1   Q.  Is it your testimony that you did that as a journalist to

   2   write a story?

   3   A.  That's correct.

   4   Q.  Could you have written the identical story without the

   5   posting, using the letters DeCSS as many times as you wanted

   6   in the story?

   7   A.  Not writing a story that would have been respected as a

   8   journalistic piece, no, because in a journalistic world, you

   9   have to pretty much put up or shut up.  You have to show your

  10   evidence and in this particular case, we would be writing an

  11   evidence without showing what we were talking about and

  12   particularly in the magazine that I work for, people want to

  13   see specifically what it is that we are referring to, what bit

  14   of technology that doesn't work, what new advancement, what

  15   evidence do we have and simply saying that somebody else said

  16   something just won't cut it.

  17            So in this particular case, we pointed to the

  18   evidence itself which was already firmly established out there

  19   in the Internet world.  We just put it up on our site so we

  20   could write our perspective on it and show the world what it

  21   was all about.

  22   Q.  Getting back to the question, in November of 1999, was it

  23   possible for you to write a story about DeCSS on your web

  24   site, using the letters DeCSS next to each other as many times

  25   as you wanted, without posting DeCSS?



                                                                824



   1   A.  I will take another shot at it.  I -- basically, the story

   2   would not hold any value to our readers if we simply printed

   3   allegations without showing evidence.

   4   Q.  I am not asking you, sir, what value your story would

   5   have.

   6            THE COURT:  Mr. Garbus.

   7            MR. GARBER:  I object.  The questions are

   8   argumentative.  And bad as to form.

   9            THE COURT:  Certainly the one in the process of

  10   winding up is.

  11            Do you have another question, Mr. Gold?  Ask it,

  12   please.

  13   Q.  In order to post DeCSS, didn't you have to go to your

  14   computer and get it?

  15   A.  Go to my computer and get it?

  16   Q.  Doesn't anyone have to -- yes, go to your computer, the

  17   same one you used to write the story?

  18   A.  We had to get DeCSS from a computer, not our computer

  19   because we didn't have it.  We took it from one of the other

  20   sites that had it at the time and posted it based on that.

  21   Q.  Once you did that, when you wrote DeCSS in your story, in

  22   effect now you had posted it, isn't that right?

  23   A.  That's correct.

  24   Q.  Couldn't you have written the same story using the same

  25   exact words and using DeCSS without going out and getting



                                                                825



   1   DeCSS and posting it?

   2   A.  No.  It would not have been the same story.  It is

   3   analogous to printing a story about a picture and not printing

   4   the picture.  People want to see what you are talking about.

   5   Q.  Does your web site now have a slogan "Stop the MPAA"?

   6   A.  It is probably on there somewhere, yes.

   7   Q.  Doesn't it stand out in bold letters?

   8   A.  I'm not exactly sure where it would stand out, but

   9   wherever it is, I'm sure it stands out graphically.

  10   Q.  And what is the meaning of that phrase, what do you mean

  11   to convey by stopping the MPAA?

  12   A.  Well, it is basically a phrase that I didn't coin myself.

  13   It has come from a number of people that see the actions of

  14   this lawsuit and other events over the past few months as

  15   ominous and something that should be stood up to and that's

  16   what people are doing simply by vocalizing that.

  17   Q.  Have you tried to stop the MPAA by writing stories about

  18   the MPAA and describing what they do as inappropriate?

  19   A.  I don't know if they carry that much weight where I could

  20   stop the MPAA by writing a story, but I have written stories

  21   to educate people as to the facts of the case.

  22   Q.  Have you ever tried to stop the MPAA by making

  23   contributions to organizations that were espousing the repeal

  24   of the antisurf protection laws?

  25   A.  We have tried to raise funds, I am not in a position to



                                                                826



   1   make contributions unfortunately, but we are trying to raise

   2   funds to help pay for our defense.

   3   Q.  Have you promoted through your web site the taking or

   4   downloading of DeCSS?

   5   A.  We have promoted the linking to various sites that still

   6   have it posted because that has not been ruled illegal in any

   7   way.

   8   Q.  Is it your belief as a reporter that to write a story

   9   about trafficking in illegal drugs in Manhattan, you would

  10   have to spend time actually trafficking in illegal drugs?

  11   A.  No, I don't think it is similar at all.  One is a computer

  12   file, one is an actual substance.

  13   Q.  Is it true that the number of sites posting CSS has

  14   increased since January 2000 when you started linking?

  15   A.  It is hard to say exactly how many there are at any one

  16   particular point in time.  There were a lot already up when we

  17   started the story.  We came in kind of late.  I believe CSS

  18   was cracked, I am hearing dates of October, and we didn't post

  19   the story until nearly a month later.

  20            At that point in time, there were already hundreds of

  21   sites that had it and that was a good part of the story that

  22   we posted.  I don't know how many there are now, and I don't

  23   know how many came up in January.  I do know there was an

  24   increase after the preliminary injunction against us and I'm

  25   not sure where that stands today or how many sites actually



                                                                827



   1   have it or how many sites that haven't been reported that have

   2   it.

   3   Q.  Mr. Goldstein, are you a leader in the hacker community?

   4   A.  Some people may say that.  I don't like to refer to myself

   5   as a leader but I am certainly somebody who certainly follows

   6   that particular aspect of society and I try to speak

   7   intelligently on it.

   8   Q.  You publish the Hacker Quarterly?

   9   A.  Yes.

  10   Q.  Your web site 2600 is known to virtually every hacker

  11   throughout the United States?

  12   A.  And quite a number of nonhackers as well, yes.

  13   Q.  You have appeared on radio and television?

  14            THE COURT:  We are not going to repeat what Mr.

  15   Garbus did yesterday, are we?  We went through the TV programs

  16   and magazine articles.  Let's go, Mr. Gold.  He has a right

  17   not to like this law and he has a right to say so.

  18            MR. GOLD:  Absolutely.

  19            THE COURT:  The question is whether he violated it

  20   and that's a different question.

  21            MR. GOLD:  My point, yes.

  22   Q.  There was a hacker convention last weekend, is that true?

  23   A.  That's correct, the third HOPE convention, call H2K.

  24   Q.  And there was a Mr. Johansen appeared at that?

  25   A.  Joe Johansen appeared on panel.



                                                                828



   1   Q.  And he spoke?

   2   A.  He and his father both spoke.

   3   Q.  Was a mock trial held of this case on --

   4   A.  Yes, actually we had scheduled that before the trial had

   5   been scheduled so the timing was kind of strange but yeah,

   6   that was organized by somebody else.

   7   Q.  Is it fair to say that the hacker community in the United

   8   States is following this trial carefully?

   9   A.  I would say the hacker community, open source community,

  10   the Linux community, yes.

  11            THE COURT:  What do you mean by the open source

  12   community?

  13            THE WITNESS:  The open source community is basically

  14   people who write software, release the source code, share

  15   information, it overlaps into the Linux world.  I am actually

  16   not a part of that community.  I didn't know much about that

  17   community before this case.

  18            THE COURT:  OK, thank you.

  19   Q.  Is it true that the 2600.com site provides a form for

  20   people to fill out so they can add their site to the 2600.com

  21   mirror list?

  22   A.  Yes, we have two forms.  We have a form where people know

  23   about a site that carries DeCSS or know of a site that carries

  24   DeCSS, they can submit that, or if they know of a site that we

  25   are listing that no longer has it, they can fill that out as



                                                                829



   1   well.  But I should also point out that that has not been

   2   worked upon for a couple of months simply because we are too

   3   busy with other projects.

   4   Q.  But the form has been there for many months?

   5   A.  The form has been there from the beginning, yes.

   6   Q.  And it still is?

   7   A.  I believe so.

   8   Q.  You don't know?

   9   A.  I haven't looked at our web site in a while but I don't

  10   believe any changes were made, no.

  11   Q.  How long a while?

  12   A.  I don't look at every page.

  13   Q.  How long a while haven't you looked at your web site?

  14   A.  I have looked at my web site.  That particular page I have

  15   not looked at probably in a couple of weeks but I believe it

  16   is still up there because we don't make changes.

  17   Q.  Do you understand that it is wrong to break through a

  18   protective device that protects a digital copyrighted work in

  19   order to take that work?

  20            MR. GARBER:  I object to the question.

  21            THE COURT:  Sustained.

  22            Let me ask you something about the mirror list and

  23   some of the sites to which you have linked.  Are there sites

  24   to which you are linked on which by clicking on the link on

  25   your site, you reach a page at the linked site that has a



                                                                830



   1   variety of content on it which may or may not include DeCSS on

   2   the first page that comes up?

   3            THE WITNESS:  Yes, that's correct.  I would say

   4   that's probably the case more times than not.

   5            THE COURT:  Do some of those sites then give the

   6   person who reaches it through clicking on the hyperlink on

   7   your site then give the user or visitor, whatever you want to

   8   call it, the option to go further in the -- I'll call it the

   9   transferee site if the visitor wishes to download DeCSS?

  10            THE WITNESS:  The person is given the choice as to

  11   whether or not they want to proceed further?  Yes.

  12            THE COURT:  Are there sites to which you are linked

  13   or have been linked where the effect of clicking on the

  14   hyperlink on your site is to begin a download to the user of

  15   DeCSS without the user or the viewer taking any further

  16   action?

  17            THE WITNESS:  You would always have to take some bit

  18   of further action even for something as simple as verifying

  19   where you want to put the file on your hard drive.  There are

  20   no instances that I know of where you can only click once on

  21   one of our hyperlinks and immediately start a download.

  22            THE COURT:  From your understanding, is it possible

  23   to construct a link of the type I have described, whether it

  24   is on your site or not?

  25            THE WITNESS:  I imagine anything is possible but I'm



                                                                831



   1   not familiar with that particular application.

   2            THE COURT:  Are there links listed on your mirror

   3   list in which the user, when the user clicks on the link is

   4   transferred to a point on a transferee site that has no

   5   content that comes up on the screen other than DeCSS or a

   6   dialog box that requires the user to do something like verify

   7   that the user wishes to download DeCSS?  That is to say, no

   8   other content?

   9            THE WITNESS:  Yes, that's certainly possible.

  10            THE COURT:  OK, thank you.  Go ahead, Mr. Gold.

  11   Q.  Mr. Goldstein, have you ever publicly advocated that it is

  12   wrong to infringe on anyone's copyright?

  13   A.  Yes, I support the copyright laws as I understand them.

  14   Q.  Have you, sir, publicly advocated that helping someone to

  15   commit a copyright infringement is wrong?

  16   A.  I believe that helping somebody to break the law is wrong,

  17   yes.

  18   Q.  What do you mean by wrong?

  19   A.  Illegal, immoral, something I wouldn't do.

  20   Q.  Now, at the end of 1999, did you know that CSS was a

  21   protected device protecting digital copyrighted movies?

  22   A.  I knew it was an encryption standard that had been applied

  23   to DVDs.  I did not see it as the same thing as preventing

  24   illegal copying, no.

  25   Q.  Why not?  What's the difference?



                                                                832



   1   A.  Again, I'm not a lawyer, so my understanding of the

   2   nuances might be a bit vague, but --

   3   Q.  Sir, I would like you to not give me any legal opinions.

   4            THE COURT:  Mr. Gold, he was trying to answer so

   5   let's hear the answer.

   6            MR. GOLD:  Thank you, your Honor.

   7   A.  My understanding is the protection, the copyright law is

   8   meant to protect the owner of the copyright from having

   9   illegal works distributed whether by copying or any other kind

  10   of infringement where the work or the copyright holder is not

  11   compensated for the work.  And my analysis of CSS and what CSS

  12   accomplished was not the same thing as that.  In other words,

  13   copying of DVDs was not affected by whether or not one

  14   decrypted CSS or one did not decrypt CSS.

  15   Q.  Did you know at the end of 1999 that the movies made by

  16   the major Hollywood studios were copyrighted?

  17   A.  Did I know they were copyrighted?  Yes, of course.

  18   Q.  Is the quarterly published, Hacker -- forgive me --

  19   A.  Hacker Quarterly.

  20   Q.  Is that copyrighted?

  21   A.  Yes, we copyright both the magazine and material on the

  22   web page.

  23   Q.  Why?

  24   A.  We don't wish for people to be able to simply copy

  25   everything on our site and claim ownership as theirs.



                                                                833



   1   Q.  Did you make the copyright application or authorize that

   2   it be made?

   3   A.  Yes.

   4   Q.  Now, by providing links through the 2600.com site, are you

   5   making it possible for any member of the general public to

   6   download DeCSS if they have a computer?

   7            MR. GARBER:  I object to the form of the question.

   8            THE COURT:  What's the objection?

   9            MR. GARBER:  Let me hear the question again.

  10            (Record read)

  11            MR. GARBER:  I will withdraw the objection.

  12   A.  If they have a computer and a connection and they choose

  13   to go to our site, yes, they can download it that way.

  14   Q.  Is it your understanding that once someone has downloaded

  15   DeCSS through the 2600.com site, neither you nor 2600 has any

  16   control over what they do with that, what they did with DeCSS?

  17   A.  That's correct, we have no control what people do after

  18   they leave our site.

  19   Q.  Did you make any efforts to confine your providing DeCSS

  20   to people who were going to use it for any specific purpose?

  21   A.  I don't think such control is possible on the net.  So the

  22   answer would be no.

  23   Q.  Is it true that anyone who downloads DeCSS can use it for

  24   any purpose that they want to put it to?

  25   A.  Any purpose they want --



                                                                834



   1   Q.  Any purpose at all?

   2   A.  I'm not -- I am having trouble following that.  DeCSS can

   3   only do a limited number of things.  It can't do anything

   4   somebody wants.

   5   Q.  Is it not true that all DeCSS can do is decrypt CSS?

   6   A.  DeCSS exists for the purpose of bypassing CSS, correct.

   7   Q.  Is it true that your posting of DeCSS and your linking to

   8   other sites that post DeCSS is being done for the sole reason

   9   that you are a journalist?

  10   A.  The reason the story appeared was because it was a

  11   journalistic piece.  The reason we continued to write about it

  12   and talk about it is because we believe it continues to be

  13   that kind of a story.

  14   Q.  Writing it and being a journalist was your only purpose of

  15   posting or linking to other sites that --

  16   A.  That's the purpose for our site, that's the purpose for

  17   our magazine.  It is a journalistic endeavor, yes.

  18   Q.  Did you ever write that the mirroring of DeCSS was a

  19   demonstration of electronic civil disobedience?

  20   A.  I can't say that I wrote those specific words but I

  21   believe those words may have appeared on our web site.

  22   Q.  And you're responsible for them?

  23   A.  I take responsibility for what appears on our web site,

  24   yes.

  25   Q.  What is your definition of civil disobedience?



                                                                835



   1            MR. GARBER:  I object.

   2            THE COURT:  Sustained.

   3   Q.  When those words appeared on your web site, what did you

   4   understand them to mean?

   5   A.  My definition of civil disobedience, electronic civil

   6   disobedience, I suppose simply people taking a stand in a way

   7   they perceive as morally just.  I really think it should be

   8   left up to the individual person to make that definition on

   9   their own.  That's how I would picture it on the web site.

  10   Again, I don't know the exact context of how it appeared on

  11   our web site.  I would have to look at that.

  12   Q.  Is it not true, to your knowledge, that civil disobedience

  13   means violating some law for the purpose of making a

  14   statement?

  15   A.  It many cases, it does involve sitting in front of a door,

  16   for instance, a minor violation to prove a point, yes.

  17   Q.  It is limited only to minor violations?

  18   A.  It can be bigger than that, I suppose.

  19   Q.  Now, do you write a news story on your web site or does a

  20   news story appear on your web site relating to DeCSS every

  21   single day?

  22   A.  I write a story occasionally.  There are other people who

  23   write stories occasionally on the web site.  They do not

  24   appear every day, no.

  25   Q.  How often in the course of a week in the last three months



                                                                836



   1   have stories about DeCSS appeared on your web site?

   2   A.  I would say probably an average of about one a week.  And

   3   that's simply because we don't have very much in the way of

   4   staff.

   5   Q.  But I gather that you link to sites that post DeCSS every

   6   single day, every single minute, every hour of the year?

   7   A.  It is not an ongoing thing.  We are not consciously doing

   8   it -- basically every story we write on our web page stays up

   9   until the end of time or until we are ordered to take it down.

  10   Q.  Is it possible for you to remove it?

  11   A.  Yes.

  12   Q.  You haven't done that?

  13   A.  No, I have not.

  14   Q.  And you don't take it down on each day when you are not

  15   writing a story about DeCSS, is that true?

  16   A.  No, we believe in keeping our stories up even when a story

  17   has a factual error in it.  Our philosophy is it would be

  18   wrong to rewrite history and pretend we didn't say something

  19   that was wrong.

  20   Q.  Have you made any money by posting DeCSS or linking it to

  21   other sites that post DeCSS?

  22   A.  I would strongly suspect not.

  23   Q.  Why would you only suspect?  Do you know?

  24   A.  I'm certain I haven't made any money from posting DeCSS.

  25   I have probably lost quite a bit of money because I have not



                                                                837



   1   been able to devote my time to the things I am supposed to be

   2   doing.

   3   Q.  There has been a great increase in people coming to your

   4   web site since you first started to post DeCSS, is that not

   5   true?

   6   A.  I have no way of knowing that since we haven't kept a

   7   counter since last summer.

   8   Q.  Wasn't that because so many people were coming to your web

   9   site?

  10   A.  That was last summer before all this started.  I have no

  11   way of knowing how many people are hitting our site.  We have

  12   no ads on our site so we have no economic need for more people

  13   to come there.  I do note a lot of people are talking about

  14   it.  I can suspect that more people are coming to our site but

  15   I have no real way of proving that.

  16   Q.  I gather al of your income comes from the Hacker

  17   Quarterly?

  18   A.  That's correct.

  19            THE COURT:  Mr. Gold, isn't that whole line

  20   irrelevant, in line of Greeging and a whole line of cases all

  21   the way back to Greeging?

  22   Q.  Have you talked with anyone at all with about

  23   advertisements in the Hacker Quarterly in the last several

  24   months, the possibility of advertising?

  25   A.  No, our policy is never to accept advertising.



                                                                838



   1   Q.  And you have had a discussion with no one about that?

   2   A.  No.

   3   Q.  I gather, Mr. Goldstein, that you have never been involved

   4   personally in reverse engineering?

   5   A.  No, I'm not an engineer.

   6   Q.  And I gather you have never been involved in cryptographic

   7   research?

   8   A.  No, I am not a cryptologist.

   9            MR. GOLD:  Your Honor, I believe it would be

  10   appropriate to have a sidebar at this point before I get into

  11   another subject.

  12            THE COURT:  Come to the sidebar.

  13

  14            (Continued on next page)

  15            (Pages 839-842 filed under seal)

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25



                                                                843



   1            (In open court)

   2            MR. GARBER:  I would ask that this part of the record

   3   be deemed confidential.

   4            THE COURT:  The transcript of the sidebar will be

   5   separately bound and filed under seal.  It will be available

   6   to counsel but not otherwise.

   7            Implicit in that of course is there will be no

   8   discussion by counsel or revelation to anybody about what the

   9   sidebar was all about.

  10            THE COURT:  Anything else, Mr. Gold?

  11            MR. GOLD:  Your Honor, I would like to offer pages 58

  12   and 59 of Mr. Goldstein's deposition transcript as an exhibit

  13   in the record at this point.

  14            THE COURT:  You have your objection, Mr. Garbus.  I

  15   take it subject to the objection.  If I don't refer to it in

  16   my decision, you should assume that I sustained the objection.

  17   BY MR. GOLD:

  18   Q.  Mr. Corley, I have noticed that a picture of a telephone

  19   and a telephone booth appears to an appear on the back cover

  20   of every issue of the Hacker Quarterly?

  21   A.  That's correct.  We print foreign pay phone pictures.

  22   Q.  For what purpose?

  23   A.  People seem to be interested in what pay phones in other

  24   countries look like so they send us their photos when they go

  25   on vacation or if they live in that particular country and we



                                                                844



   1   compile them together and print four pictures on the back of

   2   every issue.

   3   Q.  And the 2600, that title of your quarterly, is that --

   4   does that relate to a situation occurring with frequency in

   5   the '80s and '90s relating to phone service?

   6   A.  No, actually as I said yesterday, that dates back to the

   7   1960s.  It is something known as in-band signaling where a

   8   particular frequency sent over a long distance telephone line

   9   cause certain conditions to occur.  And committing a 2600

  10   hertz tone would drop a subscriber into what was known as

  11   operator mode where they could route phone calls, route

  12   themselves to internal operator and explore the entire system.

  13   That has not worked for quite a while and it is a symbolic

  14   type of name.

  15   Q.  Going back to the description you just gave us, was it

  16   possible to use what you described to make phone calls without

  17   paying for them?

  18   A.  That's one use, yes, it could have been used in that way

  19   as well.

  20   Q.  Yesterday we were reviewing certain articles or your

  21   counsel was reviewing with you articles that appeared in the

  22   Hacker Quarterly.  I am not going to go through them line by

  23   line at this point.  However, do you recall whether that

  24   warning about -- that goes something like if I remember it, we

  25   don't advocate the breaking of the law so we are not



                                                                845



   1   advocating that you perform the acts described above, did that

   2   appear in every column in the last four or five years?

   3   A.  It is something that has recurred.  We don't print it on

   4   every page in every issue.  So for instance, if somebody

   5   writes a letter to the editor and I think you could point to

   6   virtually every expression of this, somebody expresses an

   7   intent to commit a crime, we will without fail advise them not

   8   to do that or try to convince them that's a really bad idea.

   9   Q.  Such descriptive articles about acts which were in fact

  10   illegal did not contain that warning?

  11   A.  The articles are written from the author's perspective.

  12   If the author wrote the article from a different perspective

  13   as ours, there would be no such correction in there.

  14   Q.  By the way, how do we know that those authors weren't you?

  15   A.  Well, I can tell you they weren't me but other than that,

  16   I don't know how I can prove it.

  17   Q.  So --

  18   A.  Without violating --

  19   Q.  So Bull Finch and Crypton and whoever people sign, are you

  20   sure those people aren't you?

  21   A.  I'm very sure, very sure.  For one thing, I don't have the

  22   technical expertise to write many of those articles.  I write

  23   the editorial, I write the responses to the letters and

  24   occasionally news updates.

  25   Q.  Do you recall one such article where there was a



                                                                846



   1   description of how one could climb up a tree on his street

   2   where there would be a black box that related to telephone

   3   service in the community --

   4   A.  I believe you made reference to that yesterday.  It is not

   5   really a black box.

   6   Q.  What color is it?

   7   A.  It is different colors, but beige, white, silver.

   8   Q.  Those are the boxes?

   9   A.  Basically that particular story entailed people who could

  10   climb poles or go into basements or closets in buildings and

  11   make phone calls off subscriber lines.

  12   Q.  Do you remember in one paragraph, there was a description

  13   of how you could climb the tree or pole and get to the black

  14   box and whatever color it was and rip it apart so there would

  15   be no telephone service to the community?

  16   A.  I don't recall specifically that paragraph but that could

  17   have been something that the author wrote.

  18   Q.  And you did not write that article?

  19   A.  No, I did not.

  20   Q.  Does that article, if you remember, contain a warning

  21   about don't break the law and don't do the things that are set

  22   forth above?

  23   A.  No, as I said, we warned people through letters and our

  24   editorial policy.  We don't insert our comments into other

  25   people's articles.



                                                                847



   1   Q.  I am asking if you remember that that particular article

   2   did not contain such a warning?

   3   A.  I don't remember the particular article but our policy

   4   states we don't insert our editorial policy into articles.

   5            THE COURT:  Mr. Gold, I think you made your point.

   6            MR. GOLD:  Thank you, Mr. Goldstein.  Thank you I

   7   have no further questions.

   8            Oh, yes, if I may, there is one area that I haven't

   9   gotten into.  I thank my colleague.

  10   Q.  Mr. Goldstein, is it true that unless you are enjoined,

  11   you intend to keep providing links on 2600.com to other sites

  12   where DeCSS is available, do you not?

  13   A.  It is my understanding that that's legal so until we are

  14   told otherwise, yes.

  15   Q.  The answer is yes?

  16   A.  Yes.

  17            MR. GOLD:  Thank you.

  18            THE COURT:  Thank you, Mr. Gold.

  19            MR. GARBER:  I have one question.

  20   REDIRECT EXAMINATION

  21   BY MR. GARBER:

  22   Q.  The judge asked you about linking.  If www.garb.com comes

  23   to you and asks you to link, do you know what material I will

  24   have on my site when you give me permission to link to you?

  25   A.  Well, first of all, I believe you mean permission for us



                                                                848



   1   to link to you.

   2   Q.  Yes?

   3   A.  What we had been doing while we were keeping the list

   4   updated was basically going to the site, seeing if the file

   5   names were there, were present, and if so, and this is because

   6   we were getting so many submissions, we would just say yes,

   7   OK, we will post this one.

   8            What we later found out, there were some dummy files

   9   out there.  Some sites had the file names but they weren't

  10   really the files.  They were gibberish or even empty files.

  11   It is simply impossible for us to go out there and verify that

  12   each file is exactly what it says it is.  That's one of the

  13   reasons we stopped doing it, because it was kind of pointless

  14   after a while.

  15   Q.  Turning to the judge's question, do you know if you are

  16   going to link to www.garb.com who allegedly has DeCSS there,

  17   whether it is on the first page, second page, fifth page or

  18   what other information is contained on that site?

  19   A.  I am sorry, could you rephrase that a little?

  20   Q.  Let's, let's assume on your site 2600.com, you had

  21   ww.garb.com as a linking site.  Do you know -- and that

  22   linking site allegedly has something about DeCSS, do you know

  23   whether -- it has comments on DeCSS, do you know whether it

  24   has the actual mirror and do you know where that appears on

  25   the first page, the fifth page of the site?



                                                                849



   1            MR. GOLD:  Objection, your Honor.

   2            THE COURT:  Overruled.

   3   A.  We would know when we initially verified the existence of

   4   the site if it was on the fifth page or first page or wherever

   5   but we wouldn't retain that knowledge and that could change,

   6   too.  A person could take down DeCSS the day after we link to

   7   them and until somebody told us that, we wouldn't know to take

   8   it off the list.  As I mentioned over the past few months, we

   9   haven't maintained it at all.

  10   Q.  Do you know how many clicks it takes once you get to that

  11   site to get to the actual mirror of DeCSS?

  12   A.  It differs with every site.  Some may have a diatribe of

  13   have a various political ideology that they want you to read

  14   before you get to the particular mirror of the file where you

  15   click on it.  Some might have nothing but the file name when

  16   you get to their site that you click on.  So it varies with

  17   every site.  We have no way of controlling that.

  18            THE COURT:  Ever heard of the term "deep linking"?

  19            THE WITNESS:  I have heard the term.  I am a little

  20   confused by it because I know of one type of linking.  I might

  21   have an idea of what that is.  I think it involves going into

  22   a site beyond the main page, I think Ticket Master was doing

  23   something like that or somebody was doing something like that

  24   to Ticket Master.

  25            THE COURT:  Now, your web site has a home page,



                                                                850



   1   right?

   2            THE WITNESS:  Correct.

   3            THE COURT:  That's the page you get if you enter the

   4   universal resource locator www.2600.com into your browser,

   5   true?

   6            THE WITNESS:  That is right.

   7            THE COURT:  You have other pages that are, so to

   8   speak, behind the home page, right?

   9            THE WITNESS:  That's correct.

  10            THE COURT:  Every one of those other pages has its

  11   own universal resource locator or URL, correct?

  12            THE WITNESS:  That's correct, yes.

  13            THE COURT:  So someone who wished to link to your

  14   site and not to your home page but rather to some specific

  15   page beyond your home page could enter in his own web page a

  16   hyperlink not to your home page, but rather to the page behind

  17   your home page in which the person was interested in linking,

  18   right?

  19            THE WITNESS:  That's true, yes.

  20            THE COURT:  So if, for example, let's just make an

  21   assumption, the New York Times, which is www.NYTimes.com, has

  22   a web site, the home page has the URL that I just indicated,

  23   right?

  24            THE WITNESS:  That's correct.

  25            THE COURT:  And let's just suppose that as somebody



                                                                851



   1   suggested somewhere in the bowels of the New York Times web

   2   site is the DeCSS code, all right?  Are you with me?

   3            THE WITNESS:  Yes.

   4            THE COURT:  That code would appear on a page or out

   5   there in hyperspace with its own unique URL, true?

   6            THE WITNESS:  Correct.

   7            THE COURT:  Now, if the New York Times wanted you to

   8   carry a link to its mirror, you might link to that mirror in

   9   more than one way, isn't that true?

  10            THE WITNESS:  There are several ways you can do it,

  11   yes.

  12            THE COURT:  You could link by inserting the hyperlink

  13   to www.NYTimes.com and then leave the user to navigate through

  14   the New York Times web site, true?

  15            THE WITNESS:  Correct.

  16            THE COURT:  Or you could link by inserting the

  17   appropriate URL to the specific page on the New York Times web

  18   site that had the DeCSS code, am I correct?

  19            THE WITNESS:  That's correct.

  20            THE COURT:  And it was your practice to verify the

  21   existence of proposed mirrors before you linked to them, when

  22   you put them on your mirror list, right?

  23            THE WITNESS:  That's correct.

  24            THE COURT:  So the means of knowing whether the link

  25   that you posted on your mirror list took someone who clicked



                                                                852



   1   on that hyperlink to a page containing a whole bunch of

   2   content, some of it relating to DeCSS and others relating to

   3   God only knows what, as compared to taking you directly to the

   4   source code for DeCSS was in your hands, true?

   5            THE WITNESS:  If we had spent more time on it, we

   6   could have refined it so it took you directly to the actual

   7   files, yes.

   8            THE COURT:  Or not?

   9            THE WITNESS:  Yes.  What we did was we took what they

  10   gave us and looked at that and said does this go to DeCSS,

  11   either on the first page, second page or whatever and if it

  12   did, we just put it in the way they gave it to us.

  13            THE COURT:  OK.  Anybody want any further

  14   examination?

  15            MR. GARBER:  One thing.

  16            If the court were to issue a declaratory judgment

  17   saying that the posting of DeCSS were illegal or

  18   inappropriate, would you stop posting the linking?

  19            THE WITNESS:  Yes, of course.

  20            THE COURT:  Mr. Gold?

  21   RECROSS-EXAMINATION

  22   BY MR. GOLD:

  23   Q.  One question, do you know what a declaratory judgment is?

  24   A.  I am sorry.

  25   Q.  Do you know what a declaratory judgment is?



                                                                853



   1   A.  It is similar to an injunction, preliminary injunction.

   2            MR. GOLD:  Thank you.

   3            THE COURT:  OK, anything else?  Mr. Corley, you are

   4   excused.  Thank you.

   5            (Witness excused)

   6            MR. GARBER:  Your Honor, can I approach the bench for

   7   a moment.

   8            THE COURT:  OK, you and Mr. Cooper or Mr. Sims,

   9   whoever wants to come.

  10            (At the sidebar)

  11            MR. GARBER:  I think the Summer v. Tyce issue that

  12   you raised is an issue that we have been conscious of since

  13   the beginning and just to use the analogy, if one of the

  14   bullets is defective --

  15            THE COURT:  I don't want to hear argument about it

  16   now.

  17            MR. GARBER:  I don't want to also, but I just want to

  18   go into the question and relate it and I don't want to get

  19   contumacious, the whole question of discovery and the question

  20   of robustness is directly related to that issue and it has

  21   always been our argument, which we have not had a chance to

  22   document through discovery, there is the Merden report, the

  23   Macrovision report which indicated that DeCSS was not a bullet

  24   in the same way that the other utilities were bullets and it

  25   has been, that's been our position from the beginning.



                                                                854



   1            THE COURT:  I am glad to hear that, Mr. Garbus,

   2   because this is the very first time you have said it.

   3            MR. GARBER:  That robustness was an issue and the

   4   efficacy of DeCSS --

   5            THE COURT:  You just told me the Summer v. Tyce issue

   6   has been in your mind from the beginning and the first person

   7   to raise it in this case is me on the 5th day of trial.  You

   8   are trying to make a record for another purpose.  If you want

   9   to make a motion at an appropriate point for whatever relief

  10   you think is appropriate, you make that motion, but we are

  11   going to hear evidence right now.

  12            (In open court)

  13            THE COURT:  Mr. Hernstadt, your next witness?

  14            MR. HERNSTADT:  Very briefly, before you go to the

  15   next witness, yesterday we sent a letter in asking the Court's

  16   permission to use a computer to do a demonstration.  We

  17   thought it was for next week but we have managed to bring the

  18   witnesses in for today, so we have another letter asking

  19   permission to do it this afternoon.

  20            THE COURT:  Tell me what it is about.  Tell me what

  21   the demonstration is supposed to be about, Mr. Hernstadt.

  22            MR. HERNSTADT:  This afternoon we would like to do a

  23   demonstration of the LiVid Linux DVD player.  The software is

  24   still in an alpha -- in other words, even before it is

  25   released for general testing, but it is functioning software



                                                                855



   1   so we would like to show you how it works.

   2            THE COURT:  All right, I have signed the letter.  I

   3   didn't see the letter you sent yesterday.

   4            MR. HERNSTADT:  The other possible demonstration is

   5   similar to the one Dr. Shamos did.

   6            THE COURT:  Mr. Cooper?

   7            MR. COOPER:  Your Honor, we have had no notice of

   8   either of these demonstrations to my knowledge.  It is

   9   difficult for me to understand the relevancy of the first

  10   described demonstration to any of the issues in this lawsuit

  11   and we would like an opportunity to get more detail from

  12   opposing counsel regarding what the demonstrations are.

  13            THE COURT:  How long is it going to take, Mr.

  14   Hernstadt?

  15            MR. HERNSTADT:  The demonstration?

  16            THE COURT:  Yes.

  17            MR. HERNSTADT:  A few minutes.

  18            THE COURT:  Relax, Mr. Cooper.

  19            Next witness?

  20            MR. HERNSTADT:  The defendants call Larry Peterson.

  21

  22    LARRY PETERSON,

  23        called as a witness by the defendant,

  24        having been duly sworn, testified as follows:

  25   DIRECT EXAMINATION



                                                                856



   1   BY MR. HERNSTADT:

   2   Q.  Good morning, Professor Peterson.  Can you tell us about

   3   your educational background please?

   4   A.  I have a Ph.D. in computer science from Purdue University.

   5   Q.  What year did you graduate?

   6   A.  1985.

   7   Q.  What was the subject of your dissertation?

   8   A.  It had to do with several issues relating to computer

   9   networks and focused primarily on e-mail and use of e-mail.

  10   Q.  After you received your degree, where were you employed?

  11   A.  I then took an assistant professorship position at

  12   University of Arizona.  I was there for 13 years, last two of

  13   which I was department head.

  14   Q.  Of which department?

  15   A.  The computer science department.

  16   Q.  For the last couple of years, where have you been?

  17   A.  Princeton University.

  18   Q.  What courses do you teach at Princeton?

  19   A.  At Princeton, I have been teaching the computer networks

  20   class and introductory programming class.

  21   Q.  What is involved in the computer networks class?

  22   A.  Primarily I walk students through the motivation behind

  23   the Internet, the problems that cropped up over a number of

  24   years as the Internet evolved, and how researchers had solved

  25   them to evolve the Internet to where it is today.



                                                                857



   1   Q.  How long have you been studying the Internet?

   2   A.  Since I was a graduate student in 1980.

   3   Q.  How long has the Internet been around?

   4   A.  For a few more years than that.  In 1980 is when it took

   5   on the form that we are familiar with today roughly.  Before

   6   that, it was a packet switch network called the Arpanet.

   7   Because of the advent of ethernet and wanting to bring more

   8   networks into the fold, the Internet technology was deployed

   9   in the very early '80s.

  10   Q.  And what are your research subjects?

  11   A.  My is research crosses between networks and operating

  12   systems.  Both of them are broadly the study of computer

  13   systems.  We build systems, we measure them, and evaluate how

  14   they work, so it primarily has been focusing on how we can

  15   build operating systems so that networks can be more effective

  16   for users.  We take a very, what we call, end-to-end

  17   perspective so we are concerned not just with one particular

  18   thing and how fast you can transmit over it or even the fact

  19   that the links are catenated together to form the network or

  20   that there is a computer attached to either end and

  21   application programming or processes right on those computers,

  22   so we have been focused on how to get data from an application

  23   on this side of the network to an application on the other

  24   side of the network.

  25   Q.  Have you ever researched a high speed connections from a



                                                                858



   1   network to a computer?

   2   A.  Back during the early '90s, we were a part of what was

   3   called the gigabit test, it was a national initiative to push

   4   the edges of gigabit network technology and at that time, what

   5   we in particular were doing was trying to move bits between a

   6   processor on one computer to a processor on another computer

   7   at the same speeds that the link connecting those two

   8   computers operated which at the time was 622 megabits a

   9   second, technology called OC12, and we were in fact able to

  10   move the data from one machine to another at that speed.

  11   There are a number of obstacles we had to overcome to do that.

  12   Q.  Is OC12, could you explain what OC12 is?

  13   A.  It's stands for Optical Carrier 12.  There is a base unit

  14   of transmission -- let me go back.  There is basically the

  15   technology having to do with fiber optics and there is a base

  16   rate at which people can transmit which is roughly 55 megabits

  17   per second and you keep multiplying that by 2 or 3 or 6 or 12,

  18   so 6 times that base rate gives you 622. something megabits

  19   per second.  It is the way the bandwidth is measured on

  20   optical links.

  21   Q.  Is OC12 used in the Internet today?

  22   A.  Yes, it is.

  23   Q.  Where do you find it?

  24   A.  You would find it in the backbone of the Internet.  So let

  25   me just give you a broad picture of the Internet and I can



                                                                859



   1   tell you where different technology applies.

   2            You can characterize the very core of the Internet

   3   which is a set of long hold networks running across the

   4   country from Los Angeles to New York and so on and cities in

   5   between as the backbone of the Internet.  A number of carriers

   6   have provided backbones.  In the original days of the

   7   Internet, they were typically provided by government agencies

   8   so there was the NSF net in the early '90s and eventually

   9   commercial companies replaced that.  So today you go to Sprint

  10   or AT&T and they have a backbone.  The links that make up the

  11   backbone running between Chicago and Houston or whatnot might

  12   be at 622 megabits per second.

  13            Out near the edges of that backbone then, you connect

  14   in various ISPs, Internet Service Providers, so your local

  15   cable company might in one direction provide you a service at

  16   home, but they have to turn around and connect into the

  17   Internet at the high end, they would possibly use a 622

  18   megabit link from their site into SprintNet, for example.

  19            MR. HERNSTADT:  Your Honor, may I approach?

  20            THE COURT:  Yes.

  21   Q.  I have handed you Exhibit BDC.  By way of explanation,

  22   could you tell us what this is?

  23   A.  This is just the layout of Sprint's Internet backbone

  24   network.  I found it on the web a few days ago.  It shows

  25   links connecting various cities.  I know Sprint has a



                                                                860



   1   significant presence in Kansas City, for example, so it will

   2   show you the link running from Kansas City to Fort Worth and

   3   collectively this would make up the Sprint backbone.

   4   Q.  Can you explain what the different links are?

   5   A.  This is color coded and it is hard to tell for sure which

   6   are which, but these are the various links technologies being

   7   used in the Sprint backbone, DS3, an older technology, 45

   8   megabits per second.  OC3 is 155; OC12, 622; 0C48, that's 6.4

   9   gigabits per second.

  10            MR. COOPER:  From a foundational standpoint, can we

  11   get some information from the witness about where this

  12   document comes from?

  13            THE COURT:  He said he found it on the Internet a

  14   couple of days ago.

  15            MR. COOPER:  We have not seen it before and I am

  16   looking for some indication about how he went about locating

  17   it and whether this is some area of his expertise or whether

  18   he did some research and pulled it down.

  19            THE COURT:  Is that about the size of it?

  20            THE WITNESS:  Yeah, I went to Sprint.com as a good

  21   guess of where to find Sprint's backbone, some links off

  22   there, I couldn't give you the exact URL, and I found this

  23   page.

  24            THE COURT:  What do you want me to do with it if

  25   anything?



                                                                861



   1            MR. COOPER:  I am trying to explore the foundation of

   2   documents of this type so we have an even playing field as far

   3   as cross-examination is concerned, your Honor.

   4            MR. HERNSTADT:  Your Honor, we would move this into

   5   evidence insofar as it assists your Honor in understanding

   6   what this --

   7            THE COURT:  Now you are not worried that things that

   8   appear on the Internet that are hearsay.  But there is no

   9   objection so I will receive it.

  10            MR. HERNSTADT:  Thank you.

  11            (Defendant's Exhibit BDC received in evidence)

  12   Q.  Professor Peterson, have you received any honors or awards

  13   in connection with your work?

  14   A.  Several of my papers have been Outstanding Papers at

  15   different conferences, two in particular were Student Paper

  16   awards where I was co-author with one of my students at

  17   SigComm which is premiere conference for the networking

  18   community.

  19   Q.  Are you an editor now of one of the --

  20   A.  I am editor and chief of ECM which is the computer

  21   sciences professional organizations tracking on computer

  22   systems.  That's the premiere journal on computer systems.

  23   Q.  Have you authored any publications?

  24   A.  Several.  I think I counted this morning over 50.

  25   Technical papers.



                                                                862



   1            THE COURT:  Do you have a CV?

   2            MR. HERNSTADT:  I was about to ask if I could

   3   approach.

   4            THE COURT:  Yes.

   5   Q.  Professor Peterson, is this your curriculum vitae?

   6   A.  Yes, it is.

   7   Q.  Does this accurately reflect your publications?

   8   A.  Yeah, I believe it does.

   9            MR. HERNSTADT:  Your Honor, we offer this into

  10   evidence.

  11            THE COURT:  Received.

  12            (Defendant's Exhibit BBD received in evidence)

  13   Q.  Professor Peterson, what is Internet 2?

  14   A.  Internet 2 is a consortium of 150-odd universities.  In

  15   the old days, the Internet was a play thing of the researchers

  16   at universities, but of course it has become a very commercial

  17   entity today and that has impacted the way research is

  18   conducted.  So primarily research universities have gotten

  19   together to build an another piece, another corner of the

  20   Internet that they can use for research purposes and done in

  21   collaboration with some of the carriers, equipment companies

  22   and the like, Cisco and Nortel, I am not precisely sure who

  23   all the players are, so that they can have high speed

  24   connectivity so their astrophysicists can send huge files to

  25   each other in the national labs.



                                                                863



   1   Q.  Will it replace the Internet?

   2   A.  No, it is supplemental purely for the use of education.

   3   In fact, to join the consortium, you have to agree you will

   4   only use the connectivity and bandwidth for research and

   5   teaching purposes.

   6   Q.  Are you being paid for your appearance today?

   7   A.  No, I am not.

   8   Q.  Or for any of the work you have done in connection with

   9   this matter?

  10   A.  No.

  11   Q.  Can you describe how the Internet works by, for example,

  12   if you were to send a file from your office to a colleague's

  13   office, what are the various steps it would take?

  14   A.  As I have already briefly described that there is a

  15   backbone and off the edge -- there are multiple backbones.

  16   Off the edge of those backbones will be individual service

  17   providers.  They may be cable companies, local phone

  18   companies.  There are a variety of people who have gotten in

  19   the business of providing Internet service.  They will then

  20   connect at some number of links into the various backbones

  21   They might connect for one or might connect to more.

  22   Collectively, you can think of that as the majority of the

  23   Internet in terms of its capacity.

  24            What happens at the edges then is that individual

  25   users or consumers will buy some link into one of those



                                                                864



   1   service providers.  So maybe it is just they have a 56-kilobit

   2   modem and they dial into the service provider periodically or

   3   maybe they have released a line which is sometimes referred to

   4   as the last mile, last mile link into the Internet.

   5            So now we have the backbone surrounded by service

   6   providers surrounded by the last mile links.  That constitutes

   7   then all the bandwidth that makes up the Internet.  One point

   8   I should make, if you go into the Internet, it is not just

   9   links.  There are nodes, computers, in essence, that connect

  10   those links together sometimes called packet switchers,

  11   sometimes called routers.  So at every one of the connection

  12   points, there is a router of some sort.  Of course at the

  13   edges, individual PCs and laptops and whatnot that the end

  14   user has is connected to that last mile link.

  15   Q.  OK, could you tell us what file transfer speed is?

  16   A.  File transfer speed would be the number of bytes in the

  17   file divided by how long it took to transfer the file.  That

  18   would give you a bit rate or byte rate.

  19   Q.  Are connections to the Internet or pieces of the Internet

  20   rated by how fast you are capable of --

  21   A.  Any one of these links, you can talk about the bandwidth

  22   it could potentially deliver.  Whether or not you get the same

  23   transfer speed as you have individual links depends on a

  24   number of factors.  It certainly depends on the fastest link

  25   between the sender and receiver.  So I couldn't go -- the



                                                                865



   1   transfer time couldn't be any faster than the slowest link

   2   between the source and the destination.  There are other

   3   factors that come into play though.

   4   Q.  In practical terms, does one ever get the maximum

   5   theoretical speed of any piece of the Internet?

   6            MR. COOPER:  Your Honor, it is ambiguous and lacks

   7   foundation.

   8            THE COURT:  Overruled.

   9   A.  We get it in the line.  We can get conditions set up just

  10   right that we can transfer at the theoretical maximum rate

  11   that the link would provide.  On any given day at any given

  12   time, you might see something approaching that speed, might

  13   see half of it, a tenth of it, it is hard to predict.  It

  14   depends on a number of factors, not the least of which is how

  15   many other people are attempting to use the network at the

  16   same time and so -- I could expand upon that, but there is

  17   clearly going to be a point at which, as I have described it,

  18   we have got millions and millions of end users connecting to

  19   their ISPs, connecting to backbone.  There is some point at

  20   which there is a link that goes from Kansas City to Fort Worth

  21   that is trying to carry all of that traffic and that link

  22   could potentially be a bottleneck, a pinch point in the

  23   network.

  24   Q.  Is that, what you have just described, is that what is

  25   known as congestion?



                                                                866



   1   A.  Let me be more precise, congestion is a state where you

   2   have multiple incoming flows of packets attempting to go out

   3   on a shared link and the input rate exceeds the output

   4   capability.  So what happens is the packets get skewed as much

   5   as they can be, but there is a limited amount of memory in any

   6   one of those routers.  As soon as that queue is full, packets

   7   are dropped and they simply are not delivered.  The state at

   8   which you drop packets is the state of congestion.

   9   Q.  What is the impact of the congestion on the rates of

  10   speed?

  11   A.  Because congestion means packets are being dropped and not

  12   being delivered, if you go to the software on the in-points,

  13   they are charged with the responsibility of making sure every

  14   packet gets through exactly as it was presented, so as the

  15   packets are coming out is exactly the same as the packets that

  16   go in.  If you ever detect a packet didn't get through, then

  17   the sending software is responsible for retransmitting that

  18   packet.  But the bottom line, you will not get the same rate

  19   that the theoretical capacity of the links might have

  20   suggested you would.

  21            THE COURT:  When you say they are dropped, does that

  22   mean they are never transmitted or they are delayed?

  23            THE WITNESS:  They are dropped.  They will be delayed

  24   as long as they are queued in any one of the routers, but they

  25   are literally, if I have no room to hold them, I reject the



                                                                867



   1   packet as it is coming in.

   2            THE COURT:  The question whether a packet is dropped

   3   or simply delayed depends on the capacity of the router?

   4            THE WITNESS:  That is right.

   5            THE COURT:  Go ahead.

   6   Q.  What are some of the other pinch points that you

   7   mentioned?

   8   A.  Well, the software that I have been talking about is TCP,

   9   transmission control protocol.  It is the key protocol of the

  10   Internet technology.  TCP is a very delicate protocol in that

  11   it has to be tuned just right to get the transfer rates that

  12   the underlying bandwidth might suggest.  So, for example, TCP

  13   will allow some number of packets to be in transit before

  14   getting an acknowledgement which is a packet that says I got

  15   packet 42, before getting an acknowledgement back.

  16            You would not want to be in a situation where I sent

  17   you one packet and waited for you to respond I got it and then

  18   send a second packet and then respond because then I have only

  19   one packet in flight and cross-country legacies being what

  20   they are, you have very low bandwidth, you get very far from

  21   the capability of underlying links.

  22            So what TCP does, it will send multiple packets and

  23   multiple packets in flight, ideally as many as the Internet

  24   capacity can hold.  As I said, it is a simple matter of

  25   tuning.  If your TCP has not been tuned to keep enough packets



                                                                868



   1   in flight, you will get far less bandwidth than you might have

   2   expected.

   3   Q.  What are some of the solutions if any for congestion?

   4   A.  Well, there is no solution for congestion aside from

   5   putting in more capacity.  All we can do is program nodes so

   6   they detect when congestion is happening so the sources stop

   7   sending so fast because if they continue to send fast, the

   8   network will eventually collapse, which is get no useful work

   9   done, I am spending all my time sending packets that will

  10   eventually be dropped so nothing gets through.  So the

  11   solution is what TCP does today which is slow down whenever it

  12   detects that congestion is happening on the network.

  13   Q.  Have you ever heard of technology called Napster?

  14   A.  Yes, I have.

  15   Q.  Is Napster or use of Napster clogging the Internet?

  16            MR. COOPER:  Foundation.

  17            THE COURT:  Sustained.

  18   Q.  Are you aware of any impact on the Internet of Napster?

  19   A.  I am not aware of any studies that say Napster is

  20   accounting for "X" percentage of the packets being exchanged.

  21   It has not come up in any circles I have been in where people

  22   point to Napster as detectable in the traffic.

  23   Q.  Are you aware of any other file-sharing technology similar

  24   to Napster?

  25   A.  Gnutella is the only one I can think of.



                                                                869



   1   Q.  Are you aware of any impact on the Internet of Gnutella?

   2   A.  No.

   3   Q.  Is there, at Princeton University, is there what is

   4   reported in the press as a Napster problem?  Do you understand

   5   what I mean by that?

   6   A.  Princeton has not taken any action to limit the use of

   7   Napster is all that I know.

   8   Q.  What is the network topology?

   9   A.  Well, roughly speaking it is like this, and I'm not the

  10   Princeton system administrator so I am sure there are details

  11   that I don't know.  Each dorm at Princeton currently has a 10-

  12   megabit shared network for all the students within that dorm

  13   that would then be connected by 100-megabit ethernet into the

  14   central facilities of the university.  So it is one of a --

  15   like a tree, like the central facility, the core, 100 megabits

  16   going down the dorms and various departments as well and in

  17   the dorms, you would have 10 megabits shared.  Within

  18   individual apartments, you have richer connectivity because

  19   there are other things they are trying to do.

  20   Q.  Are you aware of use of Napster in uploading, downloading

  21   MP3 files at Princeton?

  22   A.  Not that I am aware of, no.

  23   Q.  Could the Internet sustain file transfers of a size of 650

  24   megabytes in any kind of significant volume?

  25            MR. COOPER:  Object to the form, and foundation.



                                                                870



   1            THE COURT:  Yes, sustained.

   2   Q.  Are you aware of the size of a Napster file?

   3   A.  Napster files are in the neighborhood of 3 or 4 megabytes.

   4   Q.  Are you aware of a general volume of Napster files that

   5   are being transferred over the Internet?

   6   A.  I'm not aware of the volume of transfers, no.

   7   Q.  Could the Internet as it is now configured handle a

   8   significant number of transfers of 650 megabit files?

   9            MR. COOPER:  Object to the form and foundation.

  10            THE COURT:  Sustained as to both.

  11   Q.  Based on your experience and your expertise with

  12   networking the Internet, is it your opinion that the Internet

  13   as it is presently configured could handle thousands of 650

  14   megabyte files transferred?

  15            MR. COOPER:  Same objection.

  16            THE COURT:  Sustained.

  17   Q.  I would like you to assume the following scenario, that

  18   tens of thousands of 650-megabit files are being transferred

  19   each day and could you tell us what your opinion --

  20   A.  A minute ago you asked me if I knew what the volume of

  21   Napster was and I don't know in any detail what the volume of

  22   Napster is.  But I can say, I can make a comparison with 650

  23   megabyte video files and say for whatever fault that volume

  24   is, I can talk about how that would strain the Internet.

  25   Q.  Please do so.



                                                                871



   1   A.  It doesn't matter what that volume is.  If you take

   2   Napster to be a problem and 10,000, 100,000 or a million and

   3   you suddenly just translated 3 megabytes into 650 megabytes,

   4   then I could talk about that.

   5            MR. COOPER:  I would still like a foundation if I

   6   could, your Honor.

   7            THE COURT:  I think you need it.

   8            MR. HERNSTADT:  I am asking him to assume -- he

   9   stated he knows the size of a Napster file.  I am asking him

  10   to assume there are tens of thousands --

  11            THE COURT:  Look, this is a little bit along these

  12   lines, you have the Tappan Zee bridge going across the Hudson

  13   River up there, and we don't know how many cars are going

  14   across it, and so far we don't know how many lanes it is and

  15   you are saying if instead of whatever numbers of cars are

  16   going across it, we had a lot more very big trucks, would

  17   there be a problem, and I think you can see that there are

  18   some problems with that question.

  19            MR. GARBER:  Your Honor, can we take a five-minute

  20   break?

  21            THE COURT:  Yes.

  22            (Recess)

  23   Q.  Professor Peterson, have you ever heard of DivX?

  24   A.  I heard of DivX, the intake for compression tool, yes.

  25   Q.  Do you know what -- do you understand a part of this



                                                                872



   1   lawsuit is about the threat that plaintiff has alleged will be

   2   posed by movies being on DVDs being decrypted by DeCSS

   3   compressed to a 150-megabyte file and then sent on the

   4   Internet?

   5   A.  Yes, I understand that's the basic idea.

   6   Q.  Does that as a new technology and new threat -- in other

   7   words, a year ago, DeCSS has been around since approximately

   8   October of 1999.

   9            THE COURT:  Is there a question?

  10            MR. HERNSTADT:  Yes.

  11   Q.  Let me ask you to assume that as of July 2000, there is

  12   additional traffic on the Internet consisting of these

  13   650-megabyte DivX files of DVD movies?

  14   A.  If people started to transmit 650-megabyte DivX --

  15            MR. COOPER:  Your Honor, is there a question?

  16            THE COURT:  There is not yet.

  17            Patience, Mr. Peterson.

  18   Q.  My question to you, Professor Peterson, based on your

  19   experience, do you have an opinion as to what the effect on

  20   the Internet would be posed by a new flow of 650-megabyte

  21   files being added to it?

  22            MR. COOPER:  Objection to the form.  It is an

  23   incomplete hypothetical.

  24            THE COURT:  It sure is.  I am going to hear it sooner

  25   or later, so I may as well hear it now and then I will ask the



                                                                873



   1   next question and then we will be past this I think.

   2            Go ahead, answer.

   3   A.  I believe the question being asked is if the transfer of

   4   650-megabyte files in the Internet -- I'm not sure if that's

   5   what he asked -- I am sorry.  I am having a little trouble

   6   knowing exactly what it is I should answer.

   7            THE COURT:  I think I know where Mr. Hernstadt is

   8   going and I will help him get there.

   9            The net has a finite capacity today, right?

  10            THE WITNESS:  Correct.

  11            THE COURT:  It has whatever level of congestion or

  12   lack of congestion that it has, right?

  13            THE WITNESS:  Right.

  14            THE COURT:  If there is a big new load placed on it,

  15   depending on how big the load is and what the current capacity

  16   is, it may or may not put a strain on the capacity of the

  17   system, true?

  18            THE WITNESS:  True.

  19            THE COURT:  When networks such as the Internet in the

  20   past have encountered limitations due to the volume of traffic

  21   pressing their capacity, the tendency has been to expand the

  22   capacity, right?

  23            THE WITNESS:  Right.

  24            THE COURT:  Kind of like the interstate highway

  25   system?



                                                                874



   1            THE WITNESS:  That's an accurate analogy.

   2            THE COURT:  All right, let's go, Mr. Hernstadt.

   3            MR. HERNSTADT:  Thank you.  Actually, I thought you

   4   were doing very well, your Honor.

   5   Q.  Professor Peterson, in such an instance, how much of an

   6   expansion would there have to be?

   7   A.  Well --

   8            MR. COOPER:  Your Honor.

   9            THE COURT:  Obviously the answer is it depends.  How

  10   many messages, what the capacity is, whether there is

  11   overcapacity or undercapacity, unless you have got some

  12   specifics here, you are nowhere, and even if you have the

  13   specifics, you have to address the expansion question.

  14   Q.  If we are talking about the addition of 650-megabyte files

  15   being traded or being sent via the Internet by let's say --

  16   and let us assume for the purposes of this at an additional

  17   rate of 10,000, 10,000 650-megabyte files per day, will that

  18   pose a strain on the Internet?

  19   A.  I can't say whether 10,000 transfers exactly would pose a

  20   strain.  What I can say, if you look at the Internet today as

  21   to what is a common-sized file that's transferred and make the

  22   assumption that the Internet is engineered for what is

  23   happening today, that you see files in the neighborhood of

  24   like the -- like the music example, MP3, 3, 4, 5, 6, 7

  25   megabytes, that's a typical transfer file size at the high



                                                                875



   1   end.  There are certainly smaller transfers, but that is

   2   considered to be a sizable transfer in today's Internet, 650

   3   megabytes is two orders of magnitude or a hundred times larger

   4   than that.

   5            (Continued on next page)

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                                                                876



   1   BY MR. HERNSTADT:

   2   Q.  And based upon your experience, do you have an opinion as

   3   to how long it would take for the backbone of the Internet to

   4   be increased by two orders of magnitude?

   5            MR. COOPER:  No foundation for that question, your

   6   Honor.

   7            THE COURT:  Sustained.

   8   Q.  Professor Peterson, do you have any experience with the

   9   growth of the backbone of the Internet?

  10   A.  Yes, I do.

  11   Q.  Do you know how fast the Internet, the backbone of the

  12   Internet, has developed, how much speed on the Internet has

  13   increased over the last ten year?

  14   A.  Yes, I could walk through that if you'd like.

  15   Q.  Please.

  16            MR. COOPER:  Your Honor, I would like to have some

  17   foundation for the information the professor is about to give.

  18            THE COURT:  I'm satisfied.  Overruled.

  19   A.  Sir, there are different ways of measuring exactly what we

  20   are talking about here, but let me give you a couple of

  21   example ways of looking at this.

  22            If you start in 1990, approximately ten years ago,

  23   the Internet backbone at that time run by the National Science

  24   Foundation consisted of 1.5 megabits per second links.  In

  25   1993 that was upgraded to 45 megabit per second links.



                                                                877



   1            THE COURT:  What was the second one?

   2            THE WITNESS:  45 megabits.  If you go to 1995, we are

   3   now seeing some new technology introduced, we start to see the

   4   commercial carriers become bigger and bigger players.  A

   5   cutting age network that was a follow onto the Nation Science

   6   Foundation's network was running at 155 megabits per second.

   7   That was the cutting edge technology in 1995 for the long haul

   8   lengths that make up the Internet.

   9            If you keep following that history, and I don't have

  10   an exact date here, but it's in the '98 neighborhood, I don't

  11   know exactly when this particular turnover took place, we

  12   started to go see the OC12 that we were talking about a little

  13   earlier in the backbone, 622 megabits per second.

  14            Today you can find OC48 links, they are at 2.4

  15   gigabits.  So if you look at the peak technology available

  16   over a ten year period, you will see that it's increased two

  17   orders of magnitude over that ten year period, if I've got my

  18   numbers right.

  19            If you focus just on the last five years, which I

  20   think is probably a little bit more appropriate because that's

  21   the technology that's carrying us today, OC3, OC12, OC48,

  22   we've gone from bandwidths measured in the hundreds of

  23   megabits per second to gigabits per second.  That's one order

  24   of magnitude improvement in the backbone's capacity in a five

  25   year period.  It could be a little bit more precise, but for



                                                                878



   1   now I'll stay with orders of magnitude.

   2            We are looking at if you take the assumption that you

   3   need to improve the capacity of Internet by two orders of

   4   magnitude, so that 650 megabyte file transfers, because as

   5   common place as today, 3 megabyte or 4 or 5 megabyte

   6   transfers, that's going to take two orders of magnitude

   7   improvement in capacity.  As I just said, it was a five year

   8   period to see the last order of magnitude improvement.

   9   Q.  Could you define what is an order of magnitude?

  10   A.  Factor of ten.  Two orders of magnitude is a factor of

  11   100.

  12   Q.  What is the connection between the increased capacity of

  13   the backbone and the increased connection speed for the

  14   average consumer, connection to the home?

  15            MR. COOPER:  Can we have a foundation, your Honor?

  16            THE COURT:  I don't even understand the question.

  17   Try again.

  18   Q.  Professor Peterson, is there a connection between how fast

  19   a connection is available to the home and how much capacity is

  20   available on the backbone?

  21   A.  Yes, because more consumers in the home start sending in

  22   and receiving data, that data is traveling over the shared

  23   capacity of the backbone, the backbone capacity has to keep

  24   pace as you add more users or you add larger files that those

  25   users are transferring.



                                                                879



   1   Q.  Professor Peterson, in your opinion, what would be the

   2   effect on the effective transfer schemes of files if the

   3   average file size being transferred increased but the Internet

   4   backbone did not?

   5            MR. COOPER:  I object to the form of the question,

   6   because it's an incomplete hypothetical, and I think it still

   7   lacks foundation.  I think it's the same question.

   8            THE COURT:  Look, I am going to take it, but let me

   9   say this:  Obviously I have a lot of respect for Professor

  10   Peterson's expertise, but this just has so many limitations

  11   that it's close to being of no value, because there are so

  12   many factors here that you are not controlling for and so many

  13   things that we don't know about, that it's just not of much

  14   help.  But go ahead.

  15   Q.  Professor Peterson, what are the factors that determine

  16   the transfer rate that a home user would obtain when sending a

  17   file from his or her home to somebody else?

  18   A.  The factors that would come into play would be the

  19   capacity of the links between the sender and receiver, and we

  20   have already been talking about the backbone, but it might

  21   most likely be limited by those two edge links which would be

  22   the uplink speed of the sender and the download speed of the

  23   receiver, because these links are typically not symmetric into

  24   the home.  And while I may be the only one using my end link,

  25   the links that are in the middle of the network are being



                                                                880



   1   shared with thousands and millions of other users, and so

   2   congestion is going to happen on those links, and of course it

   3   depends on the level of congestion exactly what transfer fee

   4   I'm going to get.

   5   Q.  Is the Internet capacity today sufficient so that

   6   congestion is only an occasional problem in terms of slowing

   7   transfer rate down?

   8   A.  Congestion happens all the time on the Internet today.

   9   Q.  If everything else remained the same but the size of the

  10   average file being sent increased, is it predictable what the

  11   impact would be on the transfer speeds?

  12            MR. COOPER:  Same objections, your Honor.

  13            THE COURT:  Overruled.

  14   A.  There would be increased congestion.  I would expect there

  15   to be increased congestion.

  16   Q.  And what is the connection between increased congestion

  17   and transfer speeds?

  18   A.  Congestion is probably the predominant factor after the

  19   actual link speed that affect the transfer rate.

  20   Q.  And to get a sense of what two orders of magnitude means,

  21   could you compare that to an increase, for example, in

  22   microprocessor speed of two orders of magnitude?

  23   A.  Just as an example a lot of people today would consider

  24   having a 500 megahertz PC as being pretty good.  Two orders of

  25   magnitude back in time, that was 5 megahertz, which has been



                                                                881



   1   quite a while ago in a lot of people's memory.

   2            MR. HERNSTADT:  Thank you very much, Professor

   3   Peterson.

   4            THE COURT:  Thank you.  Mr. Cooper.

   5   CROSS-EXAMINATION

   6   BY MR. COOPER:

   7   Q.  Good morning, professor.

   8   A.  Good morning.

   9   Q.  I believe you testified regarding some information

  10   regarding the Internet backbone and made reference to OC12.

  11   Those are routers, is that correct?

  12   A.  OC12 is a link speed.

  13   Q.  Okay.  And the speed is 622.08 megabytes, is that correct?

  14   A.  I forget if the .08 is correct, but it's 622. Something

  15   megabits per second.

  16   Q.  And the speed at which the switchers and transfers are

  17   I'll to operate now have increased significantly from the

  18   OC12, have they not?

  19   A.  Today there are OC48 links in the backbone.

  20   Q.  Are there not OC96?

  21   A.  There are probably some OC96.  I'm not aware specifically

  22   but that's possible.

  23   Q.  Are there not OC92 that have an effective rate of 9.93

  24   megabytes current any use?

  25   A.  I'm not aware of their use in the Internet backbone.



                                                                882



   1   Q.  Are you aware of their use in connection with work being

   2   done at the high speed connectivity consortium?

   3   A.  I'm not specifically aware of that consortium.

   4   Q.  Have you not heard of the consortium, a consortium that

   5   involves the Carnegie Mellon University, Cisco Systems Inc.,

   6   the Corporation for National Research Initiatives among

   7   others?

   8   A.  There are lots of consortiums like that.  I'm not familiar

   9   with that particular one.

  10   Q.  Your writing partner in your book is Mr. David, is that

  11   correct?

  12   A.  Um-hum.

  13   Q.  He is a fellow with Cisco Systems, is he not?

  14   A.  That's correct.

  15   Q.  The only experiment you conducted in connection with your

  16   testimony today, as I understand it, was to check the

  17   effective download speed of your home DSL, is that correct?

  18   A.  That's correct.

  19   Q.  And the effective download speed that you experienced was

  20   2 meg, correct?

  21   A.  2 megabits per second, yes.

  22            MR. COOPER:  I have no further questions, your Honor.

  23            THE COURT:  Mr. Hernstadt.

  24   REDIRECT EXAMINATION

  25   BY MR. HERNSTADT:



                                                                883



   1   Q.  One question.  Professor Peterson, what is your Internet

   2   connection from your home?

   3   A.  It's a DSL.

   4   Q.  Where does it go?

   5   A.  It goes directly into the department, so I have a leased

   6   line directly into the department, so the department is in

   7   essence my ISP.

   8   Q.  What is the connection of your department?

   9   A.  The department into the Internet?

  10   Q.  Yes.

  11   A.  We are connected by 100 megabit into the campus.  The

  12   campus is then connected to the Internet at I believe 50

  13   megabits per second.

  14            MR. HERNSTADT:  Thank you very much.

  15            THE COURT:  Professor Peterson.  Thank you very much.

  16            MR. ATLAS:  We are going to be calling Professor

  17   Peter Ramadage.  I wonder if we could have a short break so he

  18   can set up a laptop computer.

  19            THE COURT:  Sure.  We will take 15 minutes.

  20            (Recess)

  21            THE COURT:  Mr. Atlas.

  22            MR. ATLAS:  Good morning, your Honor.  Defense calls

  23   professor Peter Ramadage.

  24    PETER RAMADAGE,

  25        called as a witness by the Defendants,



                                                                884



   1        having been duly sworn, testified as follows:

   2            DEPUTY COURT CLERK:  State your name, spelling your

   3   last name.

   4            THE WITNESS:  Peter Ramadage, R-A-M-A-D-G-E.

   5            THE COURT:  Proceed, Mr. Atlas, please.

   6   DIRECT EXAMINATION

   7   BY MR. ATLAS:

   8   Q.  Professor Ramadage, where are you presently employed?

   9   A.  Princeton University.

  10   Q.  What do you do at Princeton?

  11   A.  A professor in the department of electrical engineering at

  12   Princeton University, so I am engaged in teaching both

  13   graduate and undergraduate students, and also research.

  14   Q.  Do you teach in any specialized area?

  15   A.  Yes, I do teaching and research in the area of digital

  16   video libraries, digital signal processing for video, search

  17   techniques for digital video, video compression and

  18   transcoding of digital video.

  19   Q.  Could you briefly go through each one of those areas in

  20   which you teach and just describe them for the Court, please.

  21   A.  My primary focus at the moment is in digital video

  22   libraries.  With the ever increasing amount of digital video

  23   that's available, it becomes important to have an indexing,

  24   search and browsing mechanism for retrieving video content

  25   once it has been archived.  We are developing tools which will



                                                                885



   1   go into producing systems to achieve that goal.  This is a

   2   relatively new area, so we are only at the very beginning of

   3   the research.  We are developing very elementary building

   4   blocks for different types of searches, different types of

   5   browsing mechanisms to aid in the formation of digital

   6   libraries.

   7   Q.  Could you describe the area of signal processing for us,

   8   please.

   9   A.  Okay.  Signal processing generally is the area in which

  10   you input a given signal, let's suppose it's a video signal,

  11   for example, and then you pass those bits that you are waiting

  12   through an algorithm, whose purpose is to come up with either

  13   a different version of what has been input or to answer some

  14   question that the user has input based on the video content

  15   that you are searching or inputting into the algorithm.

  16   Q.  I think you also mentioned compression technology.

  17   A.  Yes.

  18   Q.  What do you do in compression technology?

  19   A.  Let's restrict our attention to video files.  Because

  20   video is a very, very intensive signal to convert to digital

  21   format, it requires very many bits to convert adequately into

  22   the right format.  It results in a very large file.  Now to

  23   store those files in an efficient way, or to transmit them to

  24   another person in an efficient way one normally uses a

  25   compression technology.  That compression technology comes in



                                                                886



   1   two forms.  It's a form called loss less compression, and in

   2   loss less compression the file is transformed into a format

   3   which is smaller and requires less space but which can be

   4   decompressed and you get back the original content completely

   5   without any change.  So it's called loss less, because no

   6   information was lost.

   7            Another type of compression technology is lossy

   8   compression, and lossy compression you are willing to trade

   9   off accuracy of the decompressed files, so the decompressed

  10   file would be an approximation to the original, but you will

  11   benefit by being able to get much, much greater compression.

  12   That's typically used for consumer video, video on the

  13   Internet, for example, video phones, wireless multimedia, they

  14   all use lossy compression.

  15   Q.  Are you familiar with any other types of compression

  16   technology?

  17   A.  Those are the main two.  There is also a general purpose

  18   compression technology used on computer files.  Typically it's

  19   under the name of zip files or LZW double compression

  20   techniques.  That's a loss less compression technology.

  21   Q.  You also mentioned transcoding.  If you could briefly

  22   describe that for us.

  23   A.  Okay.  There are various applications when after a video

  24   has been produced and it has been stored in a compressed

  25   format that one needs to actually compress it further or to



                                                                887



   1   transform it inn some other way to a different format.

   2            To give you an example, if I have a video stored and

   3   I wanted to transmit it to someone over a wireless

   4   communication channel, there simply may not be enough

   5   bandwidth on the wireless communication channel to transmit

   6   the video in a reasonable amount of time in its current

   7   format, so you would take that current format and you would

   8   transcode it or basically you would take an existing

   9   compressed file, process it, and to achieve greater

  10   compression or change other attributes of the video such as

  11   the frame rate or the frame size to make it better suited to

  12   transmit over the wireless communication channel.  That would

  13   be one application of transcoding.

  14   Q.  How long have you taught at Princeton?

  15   A.  16 years.

  16   Q.  What degrees do you hold and from what schools?

  17   A.  I have two undergraduate degrees, one in physics, one in

  18   electrical engineering from the University of New Castle in

  19   Australia.  I have a masters degree in electrical engineer

  20   from the University of New Castle.  I have a Ph.D. from the

  21   University of Toronto in Canada.

  22   Q.  Have you received any professional honors?

  23   A.  Yes.  I have been awarded a complication medal from my

  24   undergraduate institution.  I have been awarded a best paper

  25   award by the IEEE.  I have been awarded several teaching



                                                                888



   1   awards both from inside Princeton University and agencies

   2   outside Princeton University; NSF research initiation grants;

   3   IBM young investigator awards, I think.

   4   Q.  What is the IEEE?

   5   A.  The Institute of Electrical and Electronic Engineers.

   6   Q.  Have you received any teaching awards separate and award

   7   from what you described?

   8   A.  Those are the main ones.

   9   Q.  Have you been published?

  10   A.  Yes, I have published over 80 referee journals and

  11   conference articles.

  12            MR. ATLAS:  I am going to show the witness what we

  13   have marked as Defendants' Exhibit BDE.  It's a copy.  I will

  14   let the witness describe what it is.

  15            THE COURT:  Any objection?

  16            MR. MERVIS:  No objection, your Honor.

  17            THE COURT:  Your name is?

  18            MR. MERVIS:  Michael Mervis.

  19            THE COURT:  BDE is received.

  20            (Defendants' Exhibit BDE received in evidence)

  21   Q.  Can you tell us what BDE is?

  22   A.  This is my curriculum vitae.  I would say it's the latest

  23   one that I just produced about two or three weeks ago.

  24   Q.  Does this reflect your published articles and conference

  25   papers?



                                                                889



   1   A.  Yes.  Yes, it's got the most recent articles we will be

   2   presenting this September at the IEEE conference on image

   3   conferencing.  Those have been added.

   4   Q.  Have you ever testified before as an expert?

   5   A.  Not in court, no.  I have been employed as an expert

   6   witness on other court cases, but I haven't actually

   7   testified.

   8   Q.  Have you been deposed before as an expert?

   9   A.  Yes, I have.

  10   Q.  In which case?

  11   A.  There is a case I. Omega v. Cyquest concerning the patent

  12   infringement on removable media disk drives.

  13   Q.  Were you being compensated for your time in that case?

  14   A.  Yes, I was.  I was being paid an hourly rate of -- it

  15   started at $200 an hour and it went up to $250 an hour by the

  16   end of the case.

  17   Q.  Are you being compensated for your time in this case?

  18   A.  No, I am not.

  19   Q.  Do I take that to understand that you are offering your

  20   service as an expert for no compensation?

  21   A.  That's correct.  I believed it is important to present my

  22   point of view and perhaps the point of view of other

  23   researchers in this area, that it's important for academics

  24   and researchers in industry to have fair access use of digital

  25   content in my own area of research.  That happens to be



                                                                890



   1   digital video.  And I think it's very important for

   2   researchers in digital video today to have access to the

   3   digital video that's in the marketplace for fair use, use in

   4   research.  And down the road when this technology is mature I

   5   think it would be important for other researchers in

   6   disciplines not necessarily related to technology also to have

   7   access to this digital information.

   8   Q.  Can you describe in a little bit more detail the specific

   9   areas of research you are currently engaged in now at

  10   Princeton?

  11   A.  Okay.  Sir, we have I think several projects running

  12   currently.  One project has to do with searching video by

  13   example, so we have stored in a data base a large amount of

  14   video.  This is a hypothetical example.  What we would like to

  15   do is someone comes in and says I would like to see what

  16   you've got in your data base, clips that look like this

  17   example, and they bring with them an example of what they

  18   would like to see, what they would like to retrieve from the

  19   data base, and we have been working on algorithms for quickly

  20   searching through the data base to try and match the example

  21   of what is in the data base and pull those thing out of the

  22   data base.

  23            Now because the video in the data base is stored in

  24   compressed form to save space, it is important that these

  25   algorithms actually operate on the compressed video.  So we



                                                                891



   1   have been developing algorithms that do that.  That's one

   2   project.

   3            Another project has to do with multicamera video. We

   4   have video from two cameras taking a video of a scene

   5   simultaneously, and we are creating a synthetic video as seen

   6   from a virtual camera on the baseline between the two real

   7   cameras.  That might have application in replays of sporting

   8   events, it might have application in surveillance.  The Navy

   9   is very interested in this because they are putting cameras on

  10   the decks of aircraft carriers, so we will also be talking to

  11   the Navy about these possible applications.

  12            Another project is using the information which is

  13   embedded in the compressed video to quickly search through

  14   that based on camera motion, try to estimate how the camera

  15   was moving by using the information embedded in the compressed

  16   video.  And once you extracted what the camera was doing, that

  17   can often help you say what is happening in the video.

  18            To give you a specific example, in a basketball game

  19   the camera often follows the ball very closely, so by

  20   determining the camera motion you can quite easily pick out

  21   things like fast breaks, jump shots, lay-ups and things like

  22   this.

  23   Q.  Any other areas of research you are currently engaged in?

  24   A.  We also are developing some novel compression algorithms.

  25   Based on some other work we think we might have some ideas



                                                                892



   1   that will lead to novel compression algorithms.  These are not

   2   general purpose algorithms.  These are rather specialized

   3   compression algorithms that might be applicable in computer

   4   graphics, compressing computer graphics or compressing video

   5   game video.

   6   Q.  What is the general purpose of your research in this area?

   7   A.  We are working towards providing tools for the browsing,

   8   manipulation and searching and indexing of digital video.

   9   That's our general objective.  This is a very new discipline,

  10   so we are not working on everything right now.  We are working

  11   taking the very first steps and working on the very elementary

  12   building blocks that would go into building such a system.

  13   Q.  When you say this is a new discipline, you are referring

  14   specifically to your research or the general research in this

  15   area?

  16   A.  The general research in this area is relatively new,

  17   really has come to the forefront in the past five years.

  18   Q.  Do you have any expectation of how this research will

  19   develop in the future?

  20   A.  The expectation is that after maybe in ten years time,

  21   after we have all the elementary pieces worked out, people

  22   will start to put these together into commercial systems or

  23   even public domain systems, and then people from the

  24   humanities, people from the social sciences, as well as people

  25   from technology and the sciences will be able to use these



                                                                893



   1   tools as part of their research.  It will become a research

   2   tool for people outside of the immediate technological area

   3   where they were developed.

   4   Q.  Now in your research, and specifically in the development

   5   of the algorithms you testified about, do you use digital

   6   content?

   7   A.  Almost exclusively everything is based on digital content.

   8   Q.  How do you use the digital content?

   9   A.  One of the advantages of having digital video is that you

  10   can search through it in a very quick way.  Digital video

  11   enables many things which are not possible with analog video.

  12   You can search through the video, you can jump into it in a

  13   random access type of way rather than sequentially have to

  14   start from the beginning.  You can store it very conveniently,

  15   and you can create data bases and libraries of it very

  16   conveniently.  The idea is you can create a library of video

  17   content, both video, sound as well as text.

  18   Q.  What are the sources of digital video content that you use

  19   in your research?

  20   A.  We have a variety of sources, and I also should tell you

  21   that at different stages of the research we use different

  22   types of video, so we have our own camera, it's a digital

  23   camera and it stores its video on a high quality digital tape.

  24   From there we can transcode it into different formats,

  25   whatever format we find most convenient.  We find MPEG1 the



                                                                894



   1   most convenient to work with, so we often transcode into MPEG

   2   1 format.

   3   Q.  Explain what MPEG1 is.

   4   A.  MPEG 1 -- there are various standard compression

   5   technologies.  One of the very first is called MPEG1.  MPEG

   6   stands for Motion Picture Expert Group.  It was a consortium

   7   of people interested, industries interested in digital video,

   8   as well as representatives of the standards organizations, and

   9   they produced over a period of three to four years an ISO

  10   standard called MPEG1.

  11            We also download pieces of video that other

  12   researchers have, and they make small clips of video available

  13   on their web pages, either displaying the result of their

  14   algorithms, or often in conjunction with that they will put up

  15   the original video, unprocessed video, to allow other people

  16   to try to replicated their results on videos.  Those are very

  17   short videos, less than ten seconds.

  18            Occasionally my students are able to download some

  19   digital video from the web that a movie studio has put up as a

  20   publicity piece for a movie or something like this.  So we

  21   also have something like that.

  22            In addition, on two occasions we have been able to

  23   negotiate through an industrial partner permission to use an

  24   extensive piece of video, copyrighted video from the content

  25   producer.  That is subject to much more restricted use.



                                                                895



   1   Q.  Those are the four primary sources of digital content you

   2   have available to you now?

   3   A.  There is another source, and that is we can take analog

   4   tapes and convert them into digital form.  Several years ago

   5   that was how we relied for getting digital video, but it

   6   wasn't totally satisfactory.  It's subject to the noise of the

   7   analog recording process, then the noise of the analog

   8   playback process, and then the peculiarity of the particular

   9   digitizer that you use and compression hardware that you use

  10   to actually do the digitization and compression.  So we prefer

  11   not to have to rely on that too much.

  12            As I said, algorithms rely on processing the

  13   compressed domain video, and we don't want to get tied to a

  14   particular compressor, a particular piece of hardware that

  15   does the compression, because then maybe our algorithms will

  16   only work with that particular piece of hardware, so it's

  17   important for us not to get too dependent on that mechanism.

  18   Q.  In terms of the variety of digital content that you have

  19   just gone through, the five categories, do you find the

  20   variety available in those categories best suits the type of

  21   work you're doing?

  22   A.  There are problems with each of those video sources that I

  23   have mentioned.  Let me elaborate on that a little bit.

  24            First we have our own camera, but it's quite a steep

  25   learning curve to learn how to use the digital camera, so our



                                                                896



   1   graduate students spend some time learning it if they need to

   2   produce video, but the resultant video is not particularly

   3   high quality.  They are not professional cameramen, and they

   4   are faced with various hurdles that they have to come up with,

   5   and they are quite innovative in trying to overcome those

   6   hurdles, but the resulting video is not commercial quality

   7   video.  For example, we can't hold the camera very steady.

   8   It's a hand-held camera.  We can't take multicamera video.  We

   9   only have one camera.  And we can't control the lighting very

  10   well.

  11            The video that we download from the web from other

  12   researchers is typically very, very short and sometimes has a

  13   lower frame rate than we would like to work with, and

  14   sometimes a very small frame size, small number of pixels in

  15   it.

  16            Video that we digitize from analog tape I think I

  17   said already there is a couple of problems with that.  I won't

  18   go over those again.

  19            By far the best quality digital video that we can

  20   obtain is from DVDs.

  21   Q.  Have you heard of DeCSS?

  22   A.  Yes, I have.

  23   Q.  Have you used DeCSS?

  24   A.  Yes, I have.  I have used it.  I went to the --

  25   Q.  Wait.  What do you understand DeCSS to be?



                                                                897



   1   A.  It's a program which will read the contents, the table of

   2   contents of a DVD disk, and then you can ask it to descramble

   3   the scrambled VOB files, the video object files on that disk,

   4   and store them to your hard drive.

   5   Q.  You testified a moment ago that you used DeCSS.  How did

   6   you obtain DeCSS?

   7   A.  I went to a search engine, Google.com and I just typed in

   8   DeCSS and did a search.  It came up with about over 7,000

   9   hits, so I did a bit of a search through those hits until I

  10   found a site that had the software, and I downloaded the

  11   source and executable program.

  12   Q.  Do you recall the site you downloaded it from?

  13   A.  No, because it involved a search through all of the

  14   various hits I don't actually remember the site I eventually

  15   found it on.  Sometimes when you go to these sites you don't

  16   actually end up on the front page of the site, you end up on

  17   some lower page that has the feel you want, but it's not

  18   immediately clear what site this is ultimately connected to.

  19   Q.  Do you know whether it's 2600.com?

  20   A.  I don't believe it was 2600.com, no.

  21   Q.  What form was DeCSS in when you downloaded it?

  22   A.  It was a zip file which is a loss less compression, that's

  23   a general type of loss less compression used to compress

  24   general computer files.  When I decompressed that, I believe

  25   it gave me the source, the executable and maybe another



                                                                898



   1   document, I can't remember, a "read me" file or something like

   2   that.

   3   Q.  Do you have an opinion on whether DeCSS would be useful to

   4   you in your area of research?

   5            MR. MERVIS:  Objection, your Honor.  There is no

   6   foundation.

   7            THE COURT:  Overruled.

   8   A.  My initial experiments have indicated that's by far the

   9   best source of high quality digital video available to us

  10   today.

  11   Q.  What is the best?

  12   A.  The DVD.  In terms of the breadth of video that's

  13   available to us, the wide variety of video available to us

  14   from various sources, and the high quality of the content,

  15   DVDs are the best source for us.

  16   Q.  What I'm asking you is do you have an opinion on whether

  17   the DeCSS utility would be useful to you in your area of

  18   research?

  19   A.  Oh, absolutely, because the video content on DVDs is

  20   scrambled, and so to get access to it we have to unscramble it

  21   and that's exactly what DeCSS does, it unscrambles that video

  22   content.

  23   Q.  If you were to have access to a wide variety of high

  24   quality digital content like on DVDs, why would that be

  25   helpful to your research?



                                                                899



   1   A.  Okay.  Initially when we first start developing an

   2   algorithm, we usually use very short pieces of video, because

   3   videos are a very time consuming object to work with and it

   4   takes a lot of space.  But after we've got the prototype

   5   working, it's very important to test the algorithm on a wide

   6   variety of different video.  It's important for two reasons.

   7   First, you want to make sure your algorithm isn't somehow

   8   dependent on the type of video you took or the type of encoder

   9   you used.  That's step number one.

  10            Step two is you would like to search for video for

  11   which it doesn't work, and to do that you need to get out

  12   there and search through a whole range of different types of

  13   video.  You are specifically looking for video where your

  14   algorithm fails to help you improve your algorithm or maybe

  15   start up a different research direction.

  16   Q.  In order to use the video, the high quality video that's

  17   available on DVDs, do you have an understanding of whether you

  18   need to decrypt them first?

  19   A.  Yes.  There are several types of files in the DVDs.  There

  20   are files with the extension IFO, which I believe is an

  21   abbreviation for information, and those contain like a table

  22   of content type information about what is on the DVD.  There

  23   are files with the extension BUP, which I believe stands for

  24   back up.  Those I think are back-ups for the IFO files.  Then

  25   there are files with the extension VOB, which I believe is an



                                                                900



   1   abbreviation for video object.  And those actually contain the

   2   video and those are scrambled, and those are the things that

   3   need to be unscrambled before you can actually use the video.

   4            Now I should also add that that video is already in a

   5   compressed form.  It's in a compressed form called MPEG2,

   6   which was the second extension of the ISO standard from MPEG1

   7   to MPEG2, and that dealt with a higher quality video.  The

   8   initial base standard for MPEG2 was intended to produce

   9   compressed video of comparable quality to broadcast video.

  10   But it also includes higher level video standards as well.

  11   Q.  In terms of the digital video content that's commercially

  12   available on DVDs, is that preferable to the digital content

  13   that you described before, the digital content that's

  14   currently available here?

  15   A.  Yes, it's very high quality, clean, no noise.  It is

  16   already digitized, which is excellent, which means we avoid

  17   having to digitize it ourselves and then pick out any

  18   peculiarities our own digitizer exhibits.  So, it's a very

  19   sound and preferable source of digital content.  Also because

  20   of the wide variety of DVDs available, it satisfies our need

  21   for a large source of different varieties of video.

  22            And in addition, I want to add one other thing.  When

  23   we use our own camera we try to avoid introducing any bias.

  24   We don't want to sort of take video which is too favorable to

  25   what we are trying to do, because the scientific method



                                                                901



   1   demands that if you want to thoroughly test your algorithm you

   2   have to use the video which has been taken independently by

   3   somebody else.  That's a basic fundamental premise of the

   4   scientific method.

   5   Q.  Is there a relationship between the amount or variety of

   6   digital video that you would use in connection with your

   7   research and the confidence you would have in the results of

   8   your research?

   9   A.  Absolutely.  One of the criticisms -- I have been to

  10   conferences.  I have also given talks in industry, and one of

  11   the criticisms that industry often has mentioned is that you

  12   really need to test your algorithms on a wider variety of

  13   video.  I often hear that from people in the industry.

  14   Q.  Are there any other applications of your research that

  15   would benefit from having access to the high quality digital

  16   content of DVDs?

  17   A.  I think I have covered the main points.

  18   Q.  In terms of compression technology, do you use compression

  19   technology in your research?

  20   A.  Yes, as I have said, our algorithms are designed to work

  21   with compressed files, and because of that we need to have a

  22   working knowledge of the compression technologies that are

  23   employed.  We also do our own transcoding of video from

  24   different compression standards to a second compression

  25   standard in order to test our algorithms on a variety of



                                                                902



   1   compression standards.

   2   Q.  I believe earlier you testified that there was lossy

   3   compression and loss less compression?

   4   A.  Yes.

   5   Q.  Do you know what type of compression is used on

   6   consumer-oriented video like the DVDs you buy in a store?

   7   A.  Yes, both the MPEG1 standard and the MPEG2 standard are

   8   lossy compression technologies.  That means when the video is

   9   compressed, information is thrown away.  If it's a good

  10   encoder, a good compressing algorithm, it will first try to

  11   throw away information which is least perceptually

  12   significant, but the more compression you ask for, the more

  13   bits it has to discard or the more information it has to

  14   discard, and eventually it is discarding important

  15   information, and that shows up as artifacts in the resultant

  16   video when you uncompress it.

  17   Q.  As a general matter, why would you use lossy compression

  18   if you can use loss less compression?

  19   A.  Okay.  Loss less compression that can achieve compression

  20   factors of 2 is quite typical.  If you are very lucky you

  21   might get higher than 2.  So, a 2 gigabyte file would be

  22   reduced to 1 gigabyte with a compression factor of 2.  By

  23   applying loss compression, you can -- I'm quoting here from

  24   the MPEG standard -- you can achieve compression factors of

  25   around 20 to 30 without any visible perceptual difference



                                                                903



   1   between the uncompressed video and the compressed video.  So,

   2   that's a factor of ten better at least than the loss less

   3   compression technology.  And in practice you often find

   4   compression factors as high as 40 used.

   5   Q.  Now, could you just describe for us a little bit in

   6   greater detail as you use more and more compression on content

   7   what happens to that content.

   8   A.  Okay.  Almost all of these compression technologies are

   9   block based.  What I mean by that is that each frame of the

  10   video is divided into small blocks, nonoverlapping blocks in

  11   the simplest case.  These blocks are about 16 by 16, 16 pixels

  12   horizontally by 16 pixels vertically.

  13            The compression is based on those elementary blocks,

  14   so when you start to throw away too many pieces of

  15   information, those blocks don't get represented correctly in

  16   the uncompressed video, so you start to actually visibly see

  17   these blocks in the uncompressed video, and you start to see

  18   miscoloring of the blocks.

  19            One of the things that underlies most of the

  20   compression technologies is that high frequency information is

  21   discarded first.  Now, high frequency information encodes

  22   things like edges, where there are sharp transitions, sudden

  23   changes in the image, so when you have discarded enough of

  24   this high frequency information or too much of this high

  25   frequency information, you start to see artifacts at the edge



                                                                904



   1   boundaries, a phenomenon called ringing, where there seems to

   2   be a time varying fluctuation around the edge, and you can

   3   visibly see this in highly compressed video.

   4   Q.  Is that what you referred to before as an artifact?

   5   A.  That's an artifact.  The fact that you can see the blocks

   6   is an artifact.  The fact that the blocks are miscolored is an

   7   artifact, and this ringing is an artifact.  There are other

   8   artifacts as well, but those are the main ones.

   9   Q.  Do you have an understanding of an average size of a DVD

  10   film?

  11   A.  Well, I have looked at the DVD for the movie Contact, and

  12   the total amount of information on that DVD disk was about

  13   seven and a half gigabytes.  Most DVDs contain the original

  14   movie as well as some additional add-ons such as director's

  15   comments, or things that were cut from the movie might be

  16   added on there, or special effects might be added on.

  17            In the particular case of the DVD Contact, the actual

  18   video file and the audio file took up about 6 gigabytes, and

  19   the remaining gigabyte and a half were the extras and the

  20   add-ons.

  21   Q.  Do you have an understanding of how much an average CDR

  22   can hold in terms of megabytes or gigabytes?

  23   A.  The standard is 650 megabytes.

  24   Q.  So, if I wanted to copy a DVD that I went out and

  25   purchased and copied it onto a CD, I would have to compress



                                                                905



   1   the content to go from 6 or 7 gigabytes down to 650 megabytes?

   2   A.  That's correct.

   3   Q.  How would that be done?

   4   A.  Well, you would use a transcoder.  Your video that you

   5   have from the DVD after you've descrambled it, you must

   6   descramble it first or else it won't work at all.  Let's say

   7   you descrambled the VOB files, now they are in MPEG2 format.

   8   That has a bit rate -- and I will explain what bit rate is in

   9   a second -- it has a bit rate of about 6 to 10 megabits per

  10   second.  Now the bit rate is how many bits are coming out of

  11   the player per second in order to display the video on the

  12   screen on average.  That's an average rate.  Sometimes it's

  13   higher, sometimes it's lower.  But on average it's about 6.7

  14   megabytes per second.  You have to now transcode that down to

  15   a much, much lower rate.

  16            You have available on the CD a space of 650

  17   megabytes.  Let's take the movie Contact.  That's a two and a

  18   half hour movie, so I have to get two and a half hours at 6.7

  19   megabits per second down into a 650 megabyte disk.  If you do

  20   the conversion of units to make all the units appropriate, and

  21   then work out the math, the bit rate after you have done the

  22   transcoding for both the audio and the video needs to be

  23   around 590 kilobits per second.  So you need to go from 6.7

  24   megabits per second down to 490 kilobits per second.

  25            That's an enormous compression.



                                                                906



   1   Q.  Would that type of compression result in artifacts being

   2   present on the ultimate product you end up on the CDR?

   3   A.  Yes, most definitely.  The artifacts would be most visible

   4   when there are scene changes, camera motion or when there is

   5   movement of objects in the scene.

   6            Just as a point of comparison, MPEG1, the rate for

   7   MPEG1 which is generally to be believed below broadcast

   8   quality video is 1.5 megabits per second.

   9   Q.  Based on your experience, if someone were going to

  10   compress a film file to send over the Internet, is it more

  11   likely that such a person would use lossy or loss less

  12   compression?

  13   A.  If they used loss less compression you would take a 6

  14   gigabyte file down to about 3 gigabytes.  That is way too big

  15   to transmit over the Internet.  So that forces you, you must

  16   use lossy compression if you are going to get it down to any

  17   reasonable size.  And even at 650 megabytes that's a very

  18   large file.

  19   Q.  In terms of the use of lossy compression, are there

  20   trade-offs to the user in connection with this type of

  21   compression?

  22   A.  The user, if you want to do a transcoding from say MPEG2,

  23   which is the DVD format, down to a much more highly compressed

  24   format, there are various parameters you get to choose.  The

  25   most important parameter is the bit rate.  Because you only



                                                                907



   1   have a limited amount of space, you have 650 megabytes, and

   2   you have a two and a half hour movie, that determines the bit

   3   rate.  That's fixed.

   4            Now you can play with other factors.  You can change

   5   the size of the image.  You can make the image smaller.  You

   6   can change the frame rate so the frame rate of the DVD is

   7   29.97 frames per second.  You could attempt to do better by

   8   decreasing the frame rate.

   9   Q.  What effect would decreasing the frame rate have in terms

  10   of viewing the ultimate product?

  11   A.  You would see fewer frames per second.  If the video was

  12   interlaced, which MPEG2 can be an interlaced video, I think

  13   the interlacing would be much more prominent at the lower

  14   frame rate.

  15   Q.  Could you just explain to us what the term "interlacing"

  16   refers to.

  17   A.  Yes.  Broadcast video doesn't present each image in the

  18   video all at once on the screen.  It actually does it in two

  19   passes.  In the first pass it draws every second line on the

  20   screen.  Then 1/60th of a second later it comes back and draws

  21   the lines it missed.  That's called interlacing.  These two

  22   scans are interlaced and they are 1/60th of a second apart.

  23            Now if there is motion in the scene, then during that

  24   1/60th per second things will have moved, so one of the

  25   problems with interlacing is that you begin to see slight



                                                                908



   1   jagged edges around objects that are moving because of the

   2   interlacing.

   3            Computer screens don't use interlacing.  They use

   4   what is called progressive scan, and progressive scan you

   5   start at the top and you draw each line sequentially down the

   6   screen.

   7   Q.  In your opinion, what is the current state of compression

   8   technology?

   9   A.  Okay.  Sir, compression technology has been a very hot and

  10   active area of research for about the past 12 years.  The

  11   MPEG1 standard started around the end of the 1980s, started to

  12   meet and form MPEG1 standard.  The MPEG2 standard was even

  13   started before the MPEG1 standard was finalized in the early

  14   1990s.  The JPEG standard was also in the first half of the

  15   1990s.  We are now just past, at the end of 1999 the second

  16   generation of the JPEG standard, JPEG 2000.  At this point

  17   compression technology is maturing and we are seeing fewer and

  18   fewer gains in the compression for each new generation of

  19   technology that comes along.

  20            In the past there have been some interesting

  21   suggestions about potential ways of increasing the compression

  22   rates dramatically.  None of those have panned out yet.  In

  23   fact some of them have even been put aside now as areas of

  24   research that are not likely to be productive.

  25   Q.  Looking out for the next five years or so, do you see any



                                                                909



   1   breakthroughs in compression technology that would allow a

   2   person to compress a file to a greater extent than is

   3   currently available now?

   4            MR. MERVIS:  Your Honor, I object.  There is no

   5   foundation for this testimony.

   6            THE COURT:  I will take the answer.  Overruled.

   7   A.  In talking to my colleagues, we often have lunch together,

   8   some of them are very very actively involved in the

   9   compression community and actually have graduate students

  10   working together putting the pieces into the next ISO

  11   standards.

  12            THE COURT:  Excuse me.  I had understood from your

  13   earlier testimony that you were offering yourself as an expert

  14   on compression, is that right?

  15            THE WITNESS:  I am.  I also want to let you know that

  16   this issue is a hot topic of discussion in the department

  17   about where is compression going.

  18            THE COURT:  Go ahead.

  19            THE WITNESS:  And it seems right now that the only

  20   technology which looks promising is the wavelet technology,

  21   and that has been the basis of the JPEG 2000 standard which

  22   has just recently been issued.

  23            So, it looks like from this point on there is only

  24   going to be incremental improvement.  There is nothing that is

  25   known to be on the horizon which promises drastic gains.



                                                                910



   1   Everything right now looks like it's going to be incremental

   2   for the next five years.  I can't see any further ahead than

   3   the next five years, so I don't want to speculate beyond that.

   4   Q.  Fair enough.  Have you heard the term fractal compression?

   5   A.  Yes.

   6   Q.  Do you have an understanding of what that is?

   7   A.  Around 1988 a researcher by the name of Barnsley proposed

   8   this compression technology called fractal compression.  I

   9   think he has two patents on that technology issued around 1990

  10   and 1991.  He formed a company I think which is called

  11   Iterated Systems, but since then nothing has really panned out

  12   from that technology.  The latest I heard in the journals and

  13   other reading that I have done is that his latest version

  14   produced by his company is not quite as good as JPEG.

  15            THE COURT:  Now, isn't there software on the market

  16   in the digital photographic area known as genuine fractals?

  17            THE WITNESS:  I haven't heard of that software.

  18            THE COURT:  Isn't it in commercial use and supported

  19   by service bureaus for high compression of digital

  20   photographic files?

  21            THE WITNESS:  I have no information on that.

  22            THE COURT:  All right.  Go ahead, Mr. Atlas.

  23   Q.  Have you heard the term DivX before?

  24   A.  Yes, I have.

  25   Q.  What is DivX, as you understand it?



                                                                911



   1            MR. MERVIS:  Your Honor, can I be heard on this?  I

   2   have an objection.  This witness was deposed a week ago on

   3   July 14, and as of that time the testimony was that he heard

   4   of DivX, that he downloaded some things from the Internet that

   5   he thought might be DivX, but he had done no further work on

   6   the subject.  So, whatever we are going to hear from the

   7   witness in response to that question is something we have had

   8   no discovery on, no notice of, and we will not have any

   9   ability to effectively cross-examine.

  10            THE COURT:  Mr. Atlas, what about it?

  11            MR. ATLAS:  Actually at his deposition he testified

  12   about what he had done with DiVX and what he intended to do

  13   with DivX between the time of his deposition and the time he

  14   would be testifying, and I suggest that if plaintiffs wanted

  15   any further deposition before trial, they had an opportunity

  16   to seek it.  But I think the witness clearly put them on

  17   notice of what he intended to do and what he looked to get out

  18   of it.

  19            THE COURT:  Let me see the deposition and tell me

  20   what you're referring to.

  21            MR. MERVIS:  Yes, your Honor.  Can I approach?

  22            THE COURT:  I'm sure you will tell me the numbers.

  23            MR. MERVIS:  The subject of the DivX was covered on

  24   the following pages:  15 through 17, 21 through 22, 25 to --

  25            THE COURT:  I can't remember them all that fast.



                                                                912



   1            MR. MERVIS:  I'm sorry.  Perhaps you let me know when

   2   you're ready.

   3            THE COURT:  Yes.  What's after page 17?

   4            MR. MERVIS:  Pages 21 to 22, your Honor.

   5            THE COURT:  Next?

   6            MR. MERVIS:  25 through 28, Judge.

   7            THE COURT:  Next.

   8            MR. MERVIS:  Page 70, your Honor.

   9            THE COURT:  Was there any representation made to you

  10   about whether or not he would testify in this area?

  11            MR. MERVIS:  The only representation that I know of,

  12   your Honor, was that his studies were continuing.  And I would

  13   simply point out in response to my adversary's comment, this

  14   is expert testimony.  Of course obviously we have been

  15   proceeding somewhat informally, but the notion that we would

  16   be given no notice of any further developments in this

  17   expert's experiments I think is inconsistent with the general

  18   standards of expert discovery.  All of a sudden we are here

  19   today hearing about DiVX, and we have never heard a peep out

  20   of defense counsel.

  21            MR. ATLAS:  Your Honor, at page 16 he was asked

  22   whether he had made any evaluation of DivX.  He said he was in

  23   the process of doing it.

  24            THE COURT:  I read it.

  25            MR. ATLAS:  You read that.  I don't think this comes



                                                                913



   1   as any surprise, and we have been talking to each other every

   2   day -- not Mr. Mervis and I -- but they certainly were aware,

   3   and I think if they wanted further examination of this witness

   4   before trial, with eight letters a day, I think they could

   5   have included that in a letter.

   6            THE COURT:  Is that all you get?

   7            MR. ATLAS:  It's not a surprise.  I think it's clear,

   8   given the time constraint, he put them on notice that he would

   9   be doing this before trial.

  10            THE COURT:  I will hear the evidence.

  11            MR. MERVIS:  Your Honor, may I make just one further

  12   application?  I am prepared to cross-examine Professor

  13   Ramadage on everything so far.  I don't know what he is going

  14   to say right now, but I do think that at the very least we

  15   should have the opportunity -- and I understand the Court

  16   wishes to hear the evidence now, but I do think we should have

  17   the opportunity to take the witness's deposition on these

  18   points and perhaps bring him back or perhaps just submit that

  19   deposition testimony, because I don't think it's appropriate,

  20   and I don't think it's fair to the Court, the witness or the

  21   defense counsel for me to be doing cross-examination on that

  22   topic.  I think it's a better use of time to have a short

  23   deposition and we can submit the appropriate exerts if there

  24   are not --

  25            THE COURT:  Why not do that?



                                                                914



   1            MR. ATLAS:  I have no objection to that.

   2            THE COURT:  It's easy.  You will finish your direct,

   3   Mr. Mervis will cross-examine him to wherever he gets to where

   4   he wants to insert DivX.  You will get a deposition done in

   5   the next three days sometime, indeed before the trial is over.

   6   I certainly don't necessarily want to interfere with the

   7   professor's weekend if I don't have to.  Lawyers are

   8   different.

   9            MR. MERVIS:  My son might disagree, your Honor, but I

  10   understand.

  11            THE COURT:  I understand, but it's an occupational

  12   hazard for sons of lawyers.  And then we will proceed that

  13   way.

  14            MR. MERVIS:  Thank you.

  15            THE COURT:  All right.

  16            MR. ATLAS:  Could you repeat back the last question

  17   and answer, please.

  18            THE COURT:  I might observe this, and I do so because

  19   I want to be corrected if I misunderstand.  Don't I have in

  20   evidence here Sleepless in Seattle and the Matrix, both in the

  21   form of the original DVD and in the form of a DeCSS decoded

  22   DivX'd compressed CD-ROM copy?  Don't I have that?

  23            MR. MERVIS:  You do, your Honor, that's correct.  I'm

  24   not sure we have moved the -- yes, we have.  Your Honor, you

  25   do have both of them.



                                                                915



   1            THE COURT:  Okay.  So I mean I suppose the purpose of

   2   all that is to ask me to look at the two movies and see to

   3   what extent I think that the copy is or isn't a commercial

   4   threat in the marketplace.

   5            MR. ATLAS:  That's part of it, your Honor.  I think

   6   your Honor permitting, the witness has done his own test along

   7   the lines of what Mr. Shamos did.  It will not take very long.

   8            THE COURT:  That's fine.  I said I would hear it, but

   9   I'm just, you know, I don't know what form the testimony is

  10   coming in in, but I think movie fans probably don't think in

  11   terms of artifacts per movie.  I think they look at the movie

  12   and they say is this an acceptable quality to watch.

  13            MR. ATLAS:  I agree.  That's exactly where we are

  14   going in terms of whether it is acceptable quality.  Can I

  15   hear the Last question and answer.

  16            (Record read)

  17   A.  DivX is what is called a codec, and a codec is an

  18   abbreviation of two words, coder, decoder.  So when you

  19   compress a video, you also have to at some later time

  20   uncompress it or decompress it.  Each coder comes together

  21   with its appropriate decoder.  That pair is called a codec.

  22   And DivX is an example of a codec, a coder/decoder pair.

  23   Q.  Have you used a DivX before?

  24   A.  Yes, I downloaded it from the web, installed it on my

  25   laptop computer and on the work station in my office.  Then I



                                                                916



   1   employed a program called flask MPEG.

   2   Q.  Is this in connection with your work for this lawsuit?

   3   A.  Yes, it was with this lawsuit.  I used a program called

   4   flask MPEG to select the DivX codec.  Now, let me add here

   5   that there were actually two DivX codecs, one called a low

   6   motion codec and one called a fast motion codec.

   7            I experimented with both of these codecs, and I took

   8   the descrambled VOB files from the movie Contact and I passed

   9   them through this codec to compress them further down to a

  10   much lower bit rate.  I said before we need to go down to an

  11   average of 590 kilobits per second.  That's for both the video

  12   and the audio.  If we subtract off from that 590 128 kilobits

  13   per second for the audio, then that tells us what our bit rate

  14   has to be for the video, and so I have employed a bit rate of

  15   about 450 kilobits per second to further compress the video

  16   for the movie Contact into a compressed file in what is called

  17   an AVI format.  AVI is a Microsoft format.

  18            (Continued on next page)

  19

  20

  21

  22

  23

  24

  25



                                                                917



   1   Q.  What size are you looking to compress?

   2   A.  That was to get it down to 650 megabytes.

   3   Q.  Why was that?

   4   A.  That's the size you can write onto a CD writable disk.

   5   Q.  How long, the point we are at now in terms of this

   6   experiment you conducted, can you tell me with respect to each

   7   step how long it took?

   8   A.  Roughly.  To download DeCSS took maybe three-quarters of

   9   an hour.  To use it to descramble all of the VOB files on the

  10   DVD took about an hour.  Then to use the DivX codec through

  11   the flask MPEG program to transcode it down to about 650

  12   megabytes, that was done in various stages because each VOB

  13   file is about a gigabyte and there are about seven of them in

  14   the movie.  It took about two and a half hours per gigabyte.

  15   At least one of them was not playable after I had transferred

  16   it, there was some error, so I had to redo that one.  After it

  17   was all said and done, I would say it took about 20 hours to

  18   do the transcoding.

  19   Q.  What did you do next in your experiment?

  20   A.  I needed to ascertain whether this -- all of these codecs,

  21   including the DivX codec are what are call variable bit rate

  22   codecs, so even though you tell it I want 450 kilobits per

  23   second, it actually decides itself how many bits to use based

  24   on the -- what's happening in the video at any given time.

  25            If there is lots of fast motion, it will use more



                                                                918



   1   bits and if there isn't very much action, if it is a very slow

   2   scene, it would try to use fewer bits.  So it tries to budget

   3   the bits and do the best it can depending on how much action

   4   there is in the scene.  So even though you tell it ahead of

   5   time to use about 450 kilobits a second, you may use more, you

   6   may use less.

   7            I did an experiment to see exactly how flexible the

   8   DivX codecs were.  It turns out that one of the codecs, the

   9   one called the fast motion codec is very stingy with its bits,

  10   it tries to use as few bits as possible to save space, but the

  11   result in quality suffers.  The low motion codec is very

  12   generous with the bits.  When more bits are needed, it uses

  13   them and it hopes it can save later when the video isn't

  14   moving as quickly.  Generally, the video content was better

  15   using the low motion codec.

  16            Having decided that the low motion codec was the best

  17   one to use, I then transcoded in particular -- I am sorry.

  18   Let me step back a second.  Because the low motion codec is a

  19   variable bit rate because, if you say you want 450 kilobits a

  20   second doesn't guarantee you will be under 450 kilobits a

  21   second.  In fact, you tended to go over by about 2 to 5

  22   percent.

  23   Q.  So what did you do next in your experiment?

  24   A.  So I selected three representative two-minute slices of

  25   the video for further examination.  These pieces were selected



                                                                919



   1   so that they contained some slow motion as well as some fast

   2   motion, try to get an average sample of what it is going to do

   3   on this slice.  Two minutes of video is quite long.  That's

   4   3600 frames.  And then I transcoded those two-minute segments

   5   down to a target rate of 450 kilobits per second and I

   6   examined the resultant quality of the video.

   7            For my first example, I actually did it at several

   8   rates to see what the effect of the rates would be and to try

   9   to keep it of course below the required size and for the next

  10   two examples, I just did it at the one rate, set rate of 450

  11   kilobits per second.  In all three examples, there are a large

  12   number of visible artifacts, a sufficient number in fact that

  13   I think the average person would say this stinks.

  14            MR. ATLAS:  With the court's permission, I believe

  15   the witness can demonstrate the examples he was just talking

  16   about on his laptop computer.  If your Honor is willing, I

  17   think the professor will take us through it.

  18            THE COURT:  Sure, let's get the exhibits marked.

  19            MR. ATLAS:  I have got Exhibit RDF is a copy that --

  20   BDF.

  21            THE COURT:  Say it once more.

  22            MR. ATLAS:  Defendant's Exhibit BDF, the Professor

  23   has this material on his hard drive.  I have one for the court

  24   and one for the defendants.

  25            THE COURT:  Are we playing it from the hard drive or



                                                                920



   1   off this disk?

   2            MR. ATLAS:  We could do it off either.

   3            THE COURT:  Let's play it off the disk.  I don't know

   4   if what is in the hard drive and I don't know if I have a

   5   record of what's in the hard drive.

   6            THE WITNESS:  In order to do a comparison, I would

   7   first like to show the original CD.

   8            THE COURT:  Is that marked?

   9            MR. ATLAS:  Do you have it?  I think I may have to

  10   ask you to give up your copy of Contact.

  11            THE COURT:  Let's get it marked, please.

  12            MR. ATLAS:  Do you have the box it came on?

  13            THE COURT:  Mark it on the disk.

  14            MR. ATLAS:  Will that affect --

  15            THE COURT:  On this side.

  16            THE WITNESS:  It shouldn't affect on this side.

  17            THE COURT:  The original CD of the movie Contact is

  18   Defendant's Exhibit BDG.

  19   BY MR. ATLAS:

  20   Q.  Did you purchase this, by the way?

  21   A.  I did.

  22            MR. ATLAS:  If plaintiff's counsel wants, I will buy

  23   you a copy but you seem to have a ton back there.

  24   A.  Let me open to the original DVD.

  25   Q.  First in terms of viewing it, where would the best place



                                                                921



   1   for us to stand be?

   2   A.  Let me get it set up.  So because it is a laptop screen,

   3   the best thing to do it is view it perpendicular to the laptop

   4   screen.  We can adjust the screen.  Please feel free to do

   5   that.

   6            THE COURT:  It is fine.

   7   A.  The best place to stand is right around this little circle

   8   here.  That's a list of all the files on the DVD.  The VOB the

   9   encrypted video files.  To try it, we double-click on the

  10   info-file which is the table of contents and that will start

  11   the DVD playing then what I would like to do is show you at

  12   least two of the examples from the DVD that I transcoded and

  13   that will be the best way of comparing the resultant quality

  14   after transcribing to the quality before.

  15            We will skip to the video start and then I think I

  16   will jump to one of the scenes.  Let's see if we can get there

  17   OK.  The first scene that I transcoded is this scene.  I

  18   transcoded the first two minutes starting from roughly around

  19   here where you see Jodie Foster get up and start to walk

  20   outside.  So there is some slow motion at the beginning.

  21   Notice how clear that antenna is right there.  We will jump to

  22   some fast motion.  That's enough from that scene.

  23            Let me jump to another part of the DVD.  This is my

  24   second example.  I will fast forward a little bit until I get

  25   to the scene that I have transcoded.  This is my second



                                                                922



   1   example.  I have transcoded two minutes starting around here.

   2   Q.  Why did you choose this particular scene?

   3   A.  Again, I am looking for examples where it contains some

   4   fast motion as well as some slow motion.

   5            THE COURT:  We will take a recess.  Five minutes.

   6            (In the robing room)

   7            MR. GARBER:  I just saw the professor in the

   8   bathroom.  He is throwing up.  He is very sick, what I would

   9   suggest is we take a lunch break.

  10            THE COURT:  I guess we have no practical alternative.

  11   All right, 2 o'clock.  Fine.

  12            MR. GARBER:  I presume he will be all right by 2

  13   o'clock.  I know nothing about it.  If he is not, we will put

  14   somebody else on.

  15            THE COURT:  Right, thank you.

  16            (Luncheon recess)

  17            (Continued on next page)

  18

  19

  20

  21

  22

  23

  24

  25



                                                                923



   1                         AFTERNOON SESSION

   2                            2:00 p.m.

   3            THE COURT:  Professor, better?

   4            MR. ATLAS:  He is.  Before we begin, some

   5   housekeeping matters in terms of our work for the weekend,

   6   depositions and documents.  I wanted to have a good idea of

   7   how the Court wanted to handle these things if you wanted to

   8   take five minutes now or at the end of the day.

   9            THE COURT:  Let's do it at the end of the day.  Maybe

  10   we can get this man on the road before rush hour.

  11            Are we ready for the matinee?

  12            THE WITNESS:  Yes.

  13            I am just starting the original DVD.  We will see the

  14   header first and then I will go to the second one, the second

  15   scene.

  16            THE COURT:  Right.

  17            THE WITNESS:  The second scene will begin around

  18   here, last for two minutes.  I have selected this scene again

  19   because it has both parts where there is not much motion,

  20   camera pans as you see here, and other parts where there are

  21   lots of moving pictures, so it is sort of a representative

  22   two-minute sample.  It is not much motion, pan of Jodi Foster,

  23   here is a camera pan.  Notice the clarity of people against

  24   the background.  You will see some ladies on top of a van in a

  25   second singing.  I want you to pay close attention to how



                                                                924



   1   clear they took against the blue sky.

   2            The ladies in the green T shirts against the blue

   3   sky.  This Elvis has something written on the back of his

   4   guitar.  See if you can read it.  So you get the idea.  That's

   5   the crispness, another slow scene.  I go all the way to the

   6   point where this gentleman points to the Jodi Foster.

   7            OK, so now let's go to the last example.  That's

   8   going to begin when part is released right about here and we

   9   will see a two-minute clip from the point where I started this

  10   video.  This again has mixed scenes, some very fast action, a

  11   lot of things changing all at once, interspersed with some

  12   close-ups of Jodi Foster where there is a little bit of change

  13   but not a fast change.  This will be the most challenging of

  14   the three samples after you are done transcoding.

  15            Notice the individual lines here in this

  16   computer-generated display in which she is traveling through

  17   this tunnel, they are all clearly visible.  And now a slow

  18   scene.  And then it will take off again and you will see a

  19   similar transversal through another tunnel.  I think you get

  20   the idea.

  21            Let's close the DVD now and I will put this CD, 650

  22   megabyte CD but I have some short samples burnt into the CD.

  23            THE COURT:  That is BDF?

  24            MR. ATLAS:  It is marked, yes.

  25            Now, let's close the DVD player.  And open up that CD



                                                                925



   1   which should be down here, right there, and here are my three

   2   examples.  Let's start with example one.  I will play this, it

   3   is in AVI format and I will play it through Microsoft media

   4   player.

   5   BY MR. ATLAS:

   6   Q.  Before you play it, what is AVI?

   7   A.  It is a format for video.  It was a Microsoft format.  The

   8   media player is a Microsoft product.  It comes standard with

   9   the windows operating system.  So this has been reduced in

  10   size from the original frame size of the DVD, so I am going to

  11   play this at full screen and this is the first scene that I

  12   showed you on the DVD.

  13            Notice the fuzziness of the general appearance.  Look

  14   at all the detail lost around the antenna area.  If you look

  15   closely around edges, you will see the ringing effect, the

  16   halos around edges and along the tree line.  This is the slow

  17   scene, the slow part of the scene so this isn't the

  18   challenging part of the scene yet.

  19            These individual pieces aren't as crisp as they were

  20   in the original DVD.  Now here is the fast part.  Notice all

  21   of the artifacts, there is a phenomena called contouring where

  22   you have big spreads of constant color.  It is trying to code

  23   this but it doesn't have enough bits.  It is saying I don't

  24   have enough bits for this, let me use fewer bits for this

  25   whole area.  You will see here in the Jodi Foster area a



                                                                926



   1   pattern of blocks, that's the block artifact that I discussed

   2   before.  If we wait until she gets out of the car, we will see

   3   it more prominently on the back of her shirt.  Right there.

   4            Notice the loss of detail of all of the faces in the

   5   scene.  Again, the coder, transcoder is trying to save bits

   6   and place the bits were things are graphically changing, so

   7   all the detail on the background has been lost.  You can tell

   8   it is rocks, but all of the fuzziness in here, and you can see

   9   the detail has been lost.  That's the first example.  It is a

  10   mixture, as I pointed out, of slow and fast.

  11            We will close that one and start the second example.

  12   The second example is the crowd scene.  Again, you notice the

  13   general fuzziness, not as crisp as before.  Notice the ringing

  14   artifacts around all of the moving edges.  You will see the

  15   effect of the block, blockiness there.  The slow part, it is a

  16   little bit better on the slow part.  Ringing, see the ringing

  17   around that lady just a second ago.

  18            Whenever there is a scene change where there is a

  19   rapid change, you notice all these artifacts more prominently.

  20   The slow part, it does better on the slow parts.  Ringing

  21   around there.  Let me stop it for a second and you can see all

  22   the block artifacts there right across the scene.  That

  23   contributes to the general fuzziness of the appearance.  There

  24   are three ladies, green ladies coming up.  Generally much

  25   fuzzier, ringed, with the ringed artifacts.  Here is Elvis,



                                                                927



   1   see the back of his guitar, it is gone.

   2            THE COURT:  I wouldn't say it was quite gone.  It was

   3   not as distinct but it was not gone.

   4            THE WITNESS:  OK.  That's the end of the second

   5   example.

   6            And the third example is the last scene and the part

   7   that leaves the launch station and starts to go through the

   8   tunnel.  Here again, you see it struggling, it doesn't have

   9   enough bits to fill in the detail.  Notice all the block

  10   artifacts right there.  It is a little better on the close-up

  11   scene where it is closer, lot of block artifacts.  Everything

  12   is changing here very rapidly.  It just can't keep up.  The

  13   lines of the tunnel are not distinct, disappeared.  We just

  14   see the general color.

  15            The slow part again, contouring artifacts.  Rapid

  16   change, you see the block artifacts all over the scene there.

  17   Again, all the lines are lost, individual lines are lost,

  18   block artifacts clearly visible.  And I can stop it and you

  19   can see all of the individual block artifacts.  In fact, this

  20   is a constant color, the contouring effect, it doesn't have

  21   enough bits to fill in the colors that were there and says I

  22   am going to fill in that patch with just one color.  You have

  23   seen all of the artifacts that are present.

  24            THE COURT:  OK, thank you.

  25            MR. ATLAS:  I just have a few other questions.  If I



                                                                928



   1   can move BDF and BDG into evidence.

   2            THE COURT:  Any objection?

   3            MR. MERVIS:  Only with respect to what we might see

   4   in the deposition, your Honor.

   5            THE COURT:  All right, received on that basis.

   6            (Defendant's Exhibits BDF and BDG received in

   7   evidence)

   8   Q.  A few more questions, Professor.

   9            Have you heard of the MPEG committee?

  10   A.  Yes, there are several MPEG committees.  There was an MPEG

  11   1 committee, an MPEG 2 committee.  There was for a brief

  12   period of time an MPEG 3 committee and MPEG 4 committee.

  13   Those are all concerned with designing standards for video

  14   compression.

  15   Q.  In terms of the MPEG 2 committee, is that the MPEG

  16   committee that determined the standards for DVDs?

  17   A.  The MPEG 2 committee determined a standard and that

  18   standard, part of what's called the baseline MPEG 2 standard

  19   is what was used to encode and compress the video on that DVD

  20   Contact that I used.  I believe that is quite standard.

  21   Q.  Do you know who makes up the MPEG 2 committee?

  22            MR. MERVIS:  Objection, your Honor, relevance.

  23            THE COURT:  What's the relevance, Mr. Atlas?

  24            MR. ATLAS:  I think it will be clear in a minute.

  25            THE COURT:  Why don't you tell me the relevance.



                                                                929



   1            MR. ATLAS:  The MPEG committee, they have issued

   2   certain findings in books and articles, they do studies of

   3   different compression techniques and they have issued what

   4   they consider findings on what level of compression is

   5   acceptable for the consumer viewing.

   6            THE COURT:  How is that any better than your opinion

   7   or mine?

   8            MR. ATLAS:  This is from a committee that is made up

   9   of I believe motion picture companies and some of the computer

  10   companies.  These are the people who are in charge of deciding

  11   what a good standard is for consumer viewing and I was going

  12   to have the professor testify about the standards that they

  13   have said are appropriate for consumers.

  14            THE COURT:  What's the basis, Professor, of your

  15   knowledge, if any, about who is on the MPEG committee?

  16            THE WITNESS:  I don't know any of the individual's

  17   names on the committee.  I do know they are made up of

  18   representatives from many industries and the international

  19   standards office.

  20            THE COURT:  Do you know how many different

  21   organizations are represented on the committee?

  22            THE WITNESS:  A large number but I don't know the

  23   exact number.

  24            THE COURT:  Do you know whether they adopt standards

  25   only by unanimity or by some vote short of unanimity?



                                                                930



   1            THE WITNESS:  I believe it is a vote short of

   2   unanimity.

   3            THE COURT:  Go ahead, Mr. Atlas.  We will see if

   4   there is anything that the witness can testify to.

   5   BY MR. ATLAS:

   6   Q.  Are you aware of any testing performed by the MPEG

   7   committee, I gather the MPEG 2 committee, regarding different

   8   compression technology?

   9   A.  All of the MPEG committees extensively test -- they call

  10   for submissions or proposals for things to be included in the

  11   standard and there is extensive testing of the submissions.

  12   Then a final draft of standards is proposed.  These are

  13   extensively tested.  It is my understanding from my reading of

  14   articles and books they even do subjective testing with

  15   bringing individuals in to rate the quality of the resultant

  16   video.

  17            MR. MERVIS:  I would object and move to strike the

  18   testimony on the grounds it constitutes hearsay.

  19            THE COURT:  I think so.  It is stricken.

  20            MR. ATLAS:  I think these are things considered by

  21   the expert in terms of giving his impression on compression

  22   technology.  This is part of the general literature.

  23            THE COURT:  If we are going to take what's part of

  24   the general literature, we don't have a hearsay rule, do we,

  25   as part of published materials?



                                                                931



   1            MR. ATLAS:  I will ask the witness in terms of

   2   whether he relies on this material for -- I would like to ask

   3   the witness whether he relied at all on these type of reports

   4   in connection with any of the opinions he has given on

   5   compression technology.

   6            THE COURT:  You better get, tie it up to a specific

   7   opinion he has given in this case.

   8            MR. ATLAS:  May I take a minute?

   9            (Pause)

  10            MR. ATLAS:  I have no further questions of this

  11   witness, your Honor.

  12            THE COURT:  All right.  Thank you.  Cross-examination

  13   Mr. Mervis?

  14            MR. MERVIS:  Thank you, your Honor.

  15   CROSS-EXAMINATION

  16   BY MR. MERVIS:

  17   Q.  Good afternoon, Professor Ramadge.  Is it your belief that

  18   you need to get access to encrypted DVD materials in order to

  19   further your research into digital video?

  20   A.  I believe it would provide us with a very widespread,

  21   reliable, high quality source of digital video which would be

  22   a great benefit to our research.

  23   Q.  I see.  The type of research that you described on your

  24   direct, you have been conducting that sort of research for

  25   about five years, isn't that right?



                                                                932



   1   A.  Correct.

   2   Q.  And the first time that you ever encrypted a DVD was in

   3   connection with this lawsuit, isn't that correct?

   4   A.  That's correct.

   5   Q.  Now, on direct, you talked about working with industrial

   6   partners, is that right?

   7   A.  Yes.

   8   Q.  Who are these industrial partners?

   9   A.  One of them is IBM.  They have given us or negotiated us

  10   the rights to use two pieces of video.  The other one is the

  11   Navy.

  12   Q.  And is it your contemplation that one of the end products

  13   of the research you are developing now would be to develop

  14   commercial tools?

  15   A.  No, I am not in the process of developing commercial tools

  16   myself.  We are developing elementary pieces or elementary

  17   blocks which later might be put together by people who develop

  18   commercial tools.

  19   Q.  To your knowledge, would that be something, is that

  20   something that your industrial partners are contemplating?

  21   A.  That's something they are very interested in, yes.

  22            THE COURT:  Let me ask you, you said the Navy, this

  23   technology that you have addressed in terms of indexing,

  24   searching and browsing, without by any means disclosing any

  25   confidential information, is of a great deal of interest to



                                                                933



   1   the military, is it not?

   2            THE WITNESS:  It is.

   3            THE COURT:  It might, for example, be used to enable

   4   targets to be identified electronically in aircraft that move

   5   too quickly to permit a human being to identify the targets on

   6   their own, right?

   7            THE WITNESS:  Certainly aspects of technology could

   8   be used for such purposes but that's not the area of my

   9   research.

  10            THE COURT:  No.  I didn't suggest that.  Let's leave

  11   it at that.

  12            I suppose the Department of Defense has an ability to

  13   give you high quality video to work with, doesn't it?

  14            THE WITNESS:  They have various constraints on the

  15   cameras.  The cameras must be extremely robust because of the

  16   environment and conditions in which they operate, so they have

  17   a range of different qualities of video.  We are working

  18   actually with the Navy with a lower quality video.

  19            THE COURT:  All right, go ahead.

  20   Q.  You testified on direct one of your sources, current

  21   sources of digital video content was content that your

  22   industrial partners got from copyright owners by a license, is

  23   that correct?

  24   A.  I don't know if it was by license, it was by some

  25   agreement which I wasn't a party to.



                                                                934



   1   Q.  Your understanding is your industrial partners went out

   2   and talked to the copyright owners and got permission to let

   3   you use the content?

   4   A.  I don't know because I wasn't part of the negotiation.  I

   5   don't know who contacted who first to negotiate the permission

   6   to use the copyrighted material.

   7   Q.  So is it fair to say that you have no firsthand knowledge

   8   of any of your industrial partners ever approaching any of the

   9   plaintiffs for permission to use any of their DVD products and

  10   having that permission denied?

  11   A.  I wasn't present at such meetings.

  12   Q.  Is it correct, Professor Ramadge that lossy compression is

  13   considered to be acceptable compression for consumer use?

  14   A.  There is a whole range of lossy compression.  Certain

  15   ranges of lossy compression have been tested and have been

  16   agreed upon as acceptable for consumer use.

  17   Q.  Now, I am correct, am I not, that if you compress digital

  18   content to 650 megabytes, you can put that on a single CD-Rom,

  19   is that correct?

  20   A.  The file size has to be 650 megabytes, that is correct.

  21   Q.  And to do this, you need a few pieces of equipment, right,

  22   a computer with proper software, you need a CD-writable drive,

  23   and need the CD, correct?

  24   A.  Correct.

  25   Q.  And the computer that you need would run you roughly 2,000



                                                                935



   1   bucks?

   2   A.  I think you need not CD but DVD.

   3   Q.  I am sorry.  Thank you for correcting me.  And the

   4   computer would cost about $2,000, right?

   5   A.  That's in the right ballpark, yes.

   6   Q.  And the DVD drive would cost somewhere between 200 and

   7   300, maybe a little bit less, right?

   8   A.  That's correct.

   9   Q.  And cost of the black CD, that's a writable CD, that's

  10   what, a dollar?

  11   A.  Correct.

  12   Q.  You testified the film you were working with, Contact,

  13   that was two and a half hours?

  14   A.  Correct.

  15   Q.  It was too long to put on a single CD?

  16   A.  No, it is possible to put it on to a single CD.  I

  17   designed those samples you just viewed, I designed the

  18   compression factor to fit the movie Contact to a single CD.

  19   Q.  You could have used a lesser degree of compression and put

  20   the film on two CDs, correct?

  21   A.  Correct.

  22   Q.  And the sum total of those two CD's would be $2?

  23   A.  Excuse me?

  24   Q.  The total cost of two CDs would be $2, right?

  25   A.  Yes.



                                                                936



   1   Q.  Now, Professor Ramadge, with all of your expertise and

   2   experience with digital video, am I correct in understanding

   3   that you don't own a DVD, sir?

   4   A.  I am sorry, a DVD player?  There is a DVD player on my

   5   laptop right there.

   6   Q.  What do you use for home viewing?

   7   A.  I use VHS, a tape player.

   8   Q.  You have never used a DVD player at home, have you?

   9   A.  I have used that DVD player at home.

  10   Q.  Since when?

  11   A.  Since I bought the laptop.

  12   Q.  When did you buy it?

  13   A.  Two years ago.  But I don't own a DVD player at home.

  14   Q.  The 20 hours that you testified to that it took you to,

  15   from beginning to end to complete the DivX-ing process, was

  16   that 20 consecutive?

  17   A.  How would we count this, the files on the DVD are

  18   separated into approximately 1 gigabyte chunks.  There are a

  19   few smaller chunks because the movie doesn't divide into an

  20   even number of 1 gigabyte chunks.  Each one-gigabyte file was

  21   processed separately.  Before I processed the next file, I had

  22   to wait for the computer to finish and load in the next file,

  23   type in the necessary commands to do that, double-check the

  24   parameters to make sure nothing had changed.

  25            After all, if it is going to take a while, you don't



                                                                937



   1   want to make a mistake and come back, change the file name

   2   where it was stored, check that there was enough empty space

   3   on the disk, nothing will go wrong and run it again.  It is

   4   consecutive in that sense, do one file, stop, do another file.

   5            However, in my initial investigations, I didn't do

   6   all the files consecutively.  I did some timing analysis based

   7   upon largest of the files of one-gigabyte size and estimated

   8   how long it would take and set aside certain portions of my

   9   time to accomplish the rest.

  10   Q.  Am I correct in understanding that you didn't sit there in

  11   front of the computer for 20  consecutive hours to complete

  12   the task?

  13   A.  As I said, it depends how you count this.  I didn't sit

  14   there for 20 consecutive hours because I didn't do it all in

  15   one sitting.

  16   Q.  Thank you very much.  Is it also correct that certainly a

  17   good portion of the time that it took, you had no reason to

  18   look at your computer screen or have any other interface with

  19   a computer, right?

  20   A.  For the purposes of my experiment, I did look occasionally

  21   at the computer screen.  I wanted to check the bit rate, the

  22   current bit rate because it is a variable bit rate coda so

  23   even though I say use such-and-such a bit rate, it could be

  24   using less or using more.  It tries to use the allocated

  25   budget in an intelligent way.  I periodically checked it to



                                                                938



   1   see what the bit rate was.

   2   Q.  I understand but it is fair to say a good deal of the

   3   DivX-ing process is automated, is that right?

   4   A.  It depends what you mean.  The programs seem rather

   5   delicate.  I crashed the program several times.  Several times

   6   I tried to open the one-gigabyte files and Microsoft media

   7   player crashed the system, so I think when you say automated,

   8   it creates the impression you press the button and it is done.

   9   It wasn't quite ought that automated.  You needed to pay

  10   certain attention to what you were doing.  It was a hands-on

  11   process.

  12   Q.  You didn't need to pay 20 hours attention?

  13            MR. ATLAS:  Objection.

  14   A.  I did glance away from the computer screen probably 50

  15   percent of the time at least while it was doing the

  16   transcoding.

  17            MR. MERVIS:  Thank you, Professor.  No further

  18   questions.

  19            THE COURT:  Thank you.  Any redirect, Mr. Atlas?

  20            MR. ATLAS:  No further questions.

  21            THE COURT:  Thank you.  Thank you, Professor.

  22            (Witness excused)

  23            THE COURT:  Next witness?

  24            MR. HERNSTADT:  Defendants call Matthew Pavlovich.

  25   He also has a computer and I don't know if you prefer he set



                                                                939



   1   it up now.  It won't take but a few minutes or if you prefer

   2   he do it during his testimony when we get to that point --

   3            THE COURT:  I am indifferent.

   4            THE WITNESS:  If it is not a problem, I can set it up

   5   right now.

   6            THE COURT:  Let's do it.

   7    MATTHEW PAVLOVICH,

   8        called as a witness by the defendant,

   9        having been duly sworn, testified as follows:

  10   DIRECT EXAMINATION

  11   BY MR. HERNSTADT:

  12   Q.  Mr. Pavlovich, where do you live?

  13   A.  I currently live in Dallas, Texas.

  14   Q.  What is your present occupation?

  15   A.  I am an -- I work for a new technology start-up Media

  16   Driver LLC.

  17   Q.  Are you one of the founders of that company?

  18   A.  Yes, I am a cofounder and currently the president.

  19   Q.  When did you first use a computer?

  20   A.  Could you repeat the question?

  21   Q.  When did you first use a computer?

  22   A.  We got our first computer when I was about 9.

  23   Q.  How long ago was that?

  24   A.  Thirteen years.

  25   Q.  Do you know the Linux operating system?



                                                                940



   1   A.  Yes, Linux is an open source alternative to other

   2   operating systems on the market.  It is developed by

   3   individuals in the technology community.

   4   Q.  What does open source mean as relates to the Linux --

   5   A.  Open source is a term used by people who developed the

   6   model, that applications that make up the operating system,

   7   that the source code or recipe to program is available

   8   publicly for anybody to use.  The source code is generally

   9   licensed and copyrighted, but the structure of the license

  10   makes it so anybody can use it, make modifications, and things

  11   of that nature.

  12   Q.  When did you first use Linux?

  13   A.  I first used Linux when I was a sophomore in high school.

  14   Q.  Is it your primary operating system?

  15   A.  It has been my primary operating system for the last five

  16   years.

  17   Q.  How many computers do you have?

  18   A.  I have four.

  19   Q.  Do you use Linux on all of them?

  20   A.  Yes, they all -- all four run Linux.

  21   Q.  Can you tell us about your education, please?

  22   A.  I went to high school in Texas, senior class president for

  23   Marcus High School in Flowermount, Texas.  When I went to

  24   college, I studied computer engineering at Purdue University.

  25   Q.  Did you graduate from Purdue?



                                                                941



   1   A.  No, I left Purdue University in mid April.  I took a leave

   2   of absence to start Media Driver.

   3   Q.  Could you tell us about your employment history?

   4   A.  I started back when I was in high school, worked for Best

   5   Buy Incorporated.  I managed the series of PC repair

   6   technicians.  All during high school and through college, I

   7   have worked during the school years and in the summers and

   8   some of the jobs kind of overlapped and intertwined.

   9            After working at Best Buy, I also worked for a

  10   company called Ping Tech Corporation.  We built custom systems

  11   and small networks for small businesses and things of that

  12   nature.

  13            While at Purdue University, second semester my

  14   freshman year, I worked for Purdue Data Network.  I worked on

  15   the network upgrade, that was a big project there at Purdue.

  16   After that, I worked for the school of liberal arts.  I was a

  17   systems and network administrator there, user base of 5 to 600

  18   users.

  19            After that, I worked for Allegiance Telecom which is

  20   a publicly-held telecommunications company that specializes in

  21   providing business telecom solutions.

  22   Q.  What did you do for Allegiance?

  23   A.  I was a support intern.  I worked for hybrid networks

  24   primarily UNIX and NT-based systems.

  25   Q.  Are you, do you know the Purdue network topology?



                                                                942



   1   A.  Yes, during my job there as network technician, we

   2   installed, I installed hubs and switches, routers, connected

   3   cable, during the major upgrade, the fiber optics, so, yes, I

   4   know that work.

   5   Q.  What was upgraded, the internet connection upgraded?

   6   A.  Not at first.  When I first attended Purdue, they had a

   7   pair of T1s that was load balanced and what that does is take

   8   two T1 lines and makes them act as one.  T1 is a data

   9   connection line of 1.55 megabits per second.  And when I left,

  10   they had upgraded the main connection to the internet to a T3.

  11   However, the main focus of the upgrade was the internal

  12   infrastructure at Purdue, the backbone, the connections to

  13   labs, connections to dorms, things of that nature.

  14   Q.  What is a T3 line, what's is the access speed on that?

  15   A.  T3 is 44.5 megabits per second.

  16   Q.  Is that an increase of what magnitude?

  17   A.  30 times.

  18   Q.  From what it was before?

  19   A.  I am sorry, it is 30 times larger than T1.  We had a pair

  20   of T1s, so that would only be 15 times.

  21   Q.  When the upgrade of the internet access to the university

  22   was achieved, did that mean that the same increase in

  23   magnitude was found in the dorm rooms?

  24   A.  No, when we were doing the network roll-out, updating the

  25   systems, the primary goal was to improve efficiency on the



                                                                943



   1   network.  The early roll-outs were just put up almost in haste

   2   just to get functionality and we were working through and

   3   reworking things.

   4            When you upgrade the main pipe to the internet, there

   5   is still a lot of factors that take into account what the end

   6   users, for example, the students in the dorm, are going to

   7   experience when you upgrade a connection likes that.  There

   8   are several points within the network pinch points where

   9   things bottleneck.

  10            For example, our typical connection to a dorm would

  11   only be 10 megabit shared connection and that shared

  12   connection would be used by anywhere from 2 to 400 students.

  13   When you upgrade the main connection to the internet, we

  14   weren't necessarily upgrading those pieces.

  15   Q.  Did you live in the Purdue dorms?

  16   A.  Yes, I lived in the dorms my freshman and sophomore years

  17   at Purdue.

  18            THE COURT:  When was that so I have a time frame?

  19            THE WITNESS:  That was fall of '96 through spring of

  20   '98.

  21            THE COURT:  Thanks.

  22   Q.  What was the network available to your dorm room at

  23   Purdue?

  24   A.  The --

  25            MS. MILLER:  Objection, I fail to see the relevance



                                                                944



   1   to this line of questioning.

   2            THE COURT:  Overruled.

   3   A.  When I initially went to Purdue freshman year, the process

   4   of the migration of the main upgraded backbone was in its

   5   infancy and halfway through my freshman year, we actually saw

   6   the fruits of it in the dorm.  When we started, we had a 19.2

   7   kilobyte connection and once the roll-out reached the dorm, we

   8   had a 10-megabit shared connection.  I had a 10-megabit

   9   connection, every room had a 10-megabit line to it which would

  10   funnel down so everyone in that one room would share a

  11   10-megabit line to the campus backbone.

  12   Q.  What access speeds do you experience on the 10-megabit

  13   line?

  14   A.  When I first got the line, when I first was connected, I

  15   was one of the early few utilizing the new speed and we could

  16   readily see 100-kilobits per second line when they first

  17   installed it.

  18   Q.  You said 100 kilobits per second?

  19   A.  100 kilobits per second.

  20   Q.  About 10 percent of the rated speed of the line?

  21   A.  Right, those numbers come -- I wasn't the only one using

  22   the network and so other students using that.

  23            The other thing when we first got that, the

  24   university still had those load balance T1s and that line is

  25   only 3-megabits per second line and the design of the network,



                                                                945



   1   the dorms would never, one dorm room or one computer in a dorm

   2   room would never have full access to the 3 megabits.

   3   Q.  Did the speed that you were able to experience change at

   4   any time during your time in the dorm?

   5   A.  Yes, they actually got worse.  During the roll-out,

   6   everything was done in phases.  We did one and two dorms at a

   7   time and as we brought more dorms on line to the network, our

   8   connection speeds and what -- the data transfer rates we

   9   experienced gradually decreased.

  10   Q.  Before I asked you about 100 kilobits was 10 percent, I

  11   meant to say 1 percent of the 10-megabit lines?

  12   A.  Yes, that's correct.

  13   Q.  Mr. Pavlovich, are you being paid to be here to testify?

  14   A.  No.  However, I feel I should mention the Electronic

  15   Frontier Foundation paid for my airplane ticket.  I got a call

  16   yesterday from Ed Hernstadt and they said they needed me up

  17   here, so I caught the last plane of the evening, 7 p.m.

  18   Q.  We thank you for that.

  19            Have you ever been involved in a project to develop a

  20   piece of Linux software?

  21   A.  Yes.  Just to kind of give you a quick background, when we

  22   say project and what Linux is before we obfuscate and things

  23   get confused, the development process --

  24            THE COURT:  When do we get to doing that, obfuscate

  25   and things get confused?



                                                                946



   1            THE WITNESS:  I will do my best here.

   2   A.  We had a project, the way we define a project is the users

   3   of the system, users of the Linux operating system and

   4   primarily developers get to a point in their developing their

   5   code that they realize we now have the foundation to work on

   6   something else, whether it be 3D graphics, video playback, a

   7   word processor program now, things like that.

   8            Interested developers will make announcements on many

   9   mailing lists, bulletin boards saying I am John Q. Developer,

  10   I wish to develop this application, I will be working with

  11   this web site, this mailing list, the code archive will be

  12   stored here, and anyone else that wants to join in, come over

  13   here and we will start working on here on this.  In a short

  14   period of time, anywhere from a half dozen to a hundreds of

  15   developers will work on any given project.

  16   Q.  What is a code archive?

  17   A.  A code archive, we tend to give that name to a system we

  18   use, when you have a large number of developers working on a

  19   project, it is very easy for people to overwrite someone

  20   else's work.  So a code archive using a special program called

  21   CVS allows you to make changes to code and store the changes

  22   between each revision.  So multiple developers can change the

  23   same piece of code and if something gets squashed, you can go

  24   back and revert to the original piece.

  25   Q.  What piece of code gets selected under the conversion?



                                                                947



   1   A.  I am sorry?

   2   Q.  How is there a selection of and different versions of the

   3   same code?

   4            MS. MILLER:  Objection, foundation.

   5            THE COURT:  Sustained.

   6   Q.  Is one piece of code selected out of the different

   7   versions of the same codes that are written?

   8   A.  When a developer, say we are developing a word processor

   9   and fixing the spell check function and one developer sends up

  10   a fix for a bug and another developer gets into a PC he meant

  11   to get in two days ago and created another bug.  What will

  12   generally happen is they will look at it and just make another

  13   patch to go on top of it.  It is really a revolving process.

  14   The last piece committed to a developer that has access to it

  15   is generally the one people are working from.

  16   Q.  Have you ever worked in an environment where you have a

  17   traditional process of making software?

  18            MS. MILLER:  Objection.

  19            THE COURT:  Sustained as to form.  I don't know what

  20   that means.

  21            MR. HERNSTADT:  I am sorry, your Honor.

  22   Q.  Do you understand what I mean when I say the traditional

  23   way of writing software?

  24   A.  I think you mean the traditional commercial development

  25   model.  The open source model has many advantages in that it



                                                                948



   1   levels the playing field, so if you are the most senior

   2   developer or most junior developer, you both have equal say in

   3   what goes on in the code base and the best idea wins or best

   4   piece of code wins and that is very advantageous because a lot

   5   of times, you will get a 17-year-old that is really sharp at

   6   what he knows and it is a better way of doing something.  In

   7   traditional, it is more top-down manner, where the most senior

   8   manager or developer says this is how we are doing it even

   9   though it might not necessarily be the best way to do it.

  10   Q.  Which Linux projects have you worked on?

  11   A.  I have worked with several.  The first one was the Debian

  12   Linux distribution, a Linux distribution is a term we give to

  13   another project that takes the collective of all the smaller

  14   projects and puts it together in a way that end users can

  15   easily install and maintain a system running Linux and it

  16   makes it a lot easier than working from raw code base, so

  17   there is much more continuity and stability to the system.

  18   Q.  Can you give an example of that?

  19   A.  An example of?

  20   Q.  A distribution, what might be bundles to go?

  21   A.  For example, Debian includes all the necessary tools and

  22   applications one would need to set up a web server, a mailing

  23   server, set up a desktop system for doing code development,

  24   word processing, networks, virtually anything you can do with

  25   a computer, there is an application available that you can do.



                                                                949



   1   Q.  What other projects have you worked on?

   2   A.  I worked -- I am sorry?

   3   Q.  What other projects have you worked on?

   4   A.  One of the developers I met while working on the Debian

   5   project approached me and said he had received some

   6   documentation on how to start getting 3D graphic support under

   7   Linux.  I was very interested in this because I was at that

   8   time looking into what it would take to get a DVD working

   9   under Linux, so I worked with him and we started the Utah GLX

  10   project which was one of the founding projects for hardware

  11   accelerated 3D graphics in Linux.

  12            In fact, it was the founding project for that.  My

  13   role there, I lobbied several hardware manufacturers for

  14   documentation.  Our goal there was we needed specific

  15   documentation to the various video chip sets in order for us

  16   to support those cards in Linux.

  17   Q.  What does it mean when you say to support a card in Linux?

  18   A.  There is literally dozens of hardware vendors selling

  19   common PC hardware and users often when they buy a system,

  20   they are not sure which piece they get and in order for Linux

  21   to run on the hardware they have, we have to have support for

  22   their chips and so our goal is to get Linux to run on their

  23   system, we have to have support for all the available chips.

  24   Q.  Does support mean that the operating system and the chip

  25   can interact?



                                                                950



   1   A.  That's what I mean by support, the Linux can communicate

   2   with the card, how the card was intended to be used for.

   3   Q.  Can you explain what a graphic accelerator is?

   4   A.  Graphic accelerator is a term used for the latest

   5   generation of video cards where they specifically have designs

   6   in them for doing 3D graphics, gaming, a lot of times they are

   7   adding in support for hardware accelerated video play back,

   8   motion compensation, video -- I can throw catch phrases all

   9   day but --

  10   Q.  What was the next project you worked on?

  11   A.  After getting to the point where we had gotten to where we

  12   needed to begin the DVD project, I spun a sister project off

  13   from Utah GLX that became known as the Linux Video project or

  14   for short, LiViD.

  15   Q.  Why did you start LiViD?

  16   A.  Quite frankly, I wanted to play DVDs on my Linux box.  I

  17   received documentation for a hardware decoder that worked with

  18   my video code at the time and I wanted to be able to utilize

  19   that decoder chip and the DVD drive and movies I bought under

  20   Linux.

  21   Q.  What was your role with the LiViD project?

  22   A.  I was the founder, project leader of LiViD.

  23   Q.  What does it mean to be a project leader?

  24   A.  It can mean a lot of things, it depends on the project.  A

  25   lot of times the project leader in my case went out and



                                                                951



   1   actively seeked developers working on similar projects,

   2   video-related project.  My idea was if we get all the

   3   developers working on video and DVD-related projects, we could

   4   all work from a common code base and have more a cohesive and

   5   efficient code group as opposed to several projects working on

   6   different things and not necessarily coming up with a

   7   standardized set of tools.

   8   Q.  When did you start working on the LiViD project?

   9   A.  I founded LiViD June, July, in the time period of 1999.

  10   Q.  Are you still working on it?

  11   A.  Yes.

  12   Q.  How much time do you devote to LiViD?

  13   A.  When I originally started LiViD, I put upwards of 40 hours

  14   a week, talking with developers, talking to hardware vendors,

  15   looking at specifications, looking at code, writing code.

  16   With my job and what I have been doing now, I have not been

  17   able to commit as much time and now I would say I commit

  18   anywhere from 10 to 20 hours a week.

  19   Q.  Are you being paid for any of your work on the project?

  20   A.  No, I am not.

  21   Q.  Have you ever heard of DeCSS?

  22   A.  Yes, DeCSS is commonly referred to as a Windows program

  23   that decrypts DVD data.

  24   Q.  When did you first become aware of it?

  25   A.  Summer/fall period of '99 when it was first posted to the



                                                                952



   1   LiViD mailing list.

   2   Q.  Did you try it out when it was first posted?

   3   A.  When it was first posted, it was posted in binary form.

   4   We were more -- I was more interested in the source code

   5   version which came shortly thereafter.  When it first came

   6   out, I did not use it.

   7   Q.  Was DeCSS part of or connected to the LiViD project?

   8            MS. MILLER:  Objection, your Honor, no foundation.

   9            THE COURT:  Overruled.

  10   A.  Yes, the DeCSS has actually a long history of being

  11   related to the LiViD project.  The CSS project or CSS process

  12   has a few phases, the authentication between a decoder or the

  13   piece whether it be hardware or software that takes the DVD

  14   data and converts it here in audio and video presentation and

  15   the actual decryption where it decrypts the encrypted content.

  16            The first part of that process was the authentication

  17   and that was written and released for and under the LiViD

  18   project.  DeCSS utilized the CSS routines from the LiViD

  19   project as a piece of DeCSS.  DeCSS, the source code was later

  20   translated, the core functions were used in the decrypting

  21   part of the DeCSS for the Linux video player.

  22   Q.  In other words, you are saying part of the DeCSS came from

  23   Linux and the second part of DeCSS went back into Linux?

  24   A.  That is correct.

  25   Q.  Is the source code for DeCSS available now?



                                                                953



   1   A.  Yes.

   2   Q.  Is the source code for LiViD project available?

   3   A.  Yes, all the code for the LiViD project is available.  We

   4   released all the under the GNU general public license which is

   5   the open source license that most Linux projects are using.

   6   Q.  Why was DeCSS a Windows program?

   7            MS. MILLER:  Objection, your Honor.

   8            THE COURT:  Sustained.

   9   Q.  Do you know why DeCSS was a Windows project?

  10            MS. MILLER:  Objection, we have already heard

  11   testimony from Mr. Johansen.

  12            THE COURT:  Sustained.

  13            MR. HERNSTADT:  OK.

  14            THE COURT:  He didn't write the code.

  15            MR. HERNSTADT:  I will try it an a different way,

  16   your Honor.

  17   Q.  Was DeCSS used by the project in developing the LiViD

  18   player?

  19   A.  Yes.  Many of the other developers that had -- I didn't

  20   have a windows system at that time and many of the other

  21   developers used DeCSS to test the tool, to decrypt DVD data to

  22   use the unencrypted data for the other parts of the DVD

  23   player.  A DVD player would have ten steps to decode a DVD

  24   fully and CSS represents two of those and we were unable to

  25   develop many of the other pieces without having those two



                                                                954



   1   steps.  So many of the developers would use the unencrypted

   2   content to start analyzing the other parts of it and many

   3   developers analyzed the algorithm which was then brought back

   4   into the LiViD player.

   5            MS. MILLER:  Objection, move to strike the last

   6   answer.  This witness has not laid a foundation for how he

   7   knows what the other developers in the Linux project have.

   8            THE COURT:  Granted.

   9   Q.  You were the project leader of the LiViD project?

  10   A.  That's correct.

  11   Q.  As project leader, you observed all the different changes

  12   of major source code as they were made, is that correct?

  13   A.  I observed most of them.  It is difficult to see every

  14   piece of code that goes in, but when a developer posts a

  15   change to the LiViD project or LiViD archive, we set up a tool

  16   to where the developer would commit his changes and it would

  17   list it and then e-mail back to the mailing list, without the

  18   developer having to do anything, the list of the files that

  19   were changed and give an area for a note to what the developer

  20   said he had just changed in that latest patch or update.

  21            So it was very easy to track the developments by

  22   following the mailed postings.  They listed the files that

  23   were changed and what was changed in those files.

  24   Q.  You said you followed the postings to the forum as well?

  25   A.  Sure, and the code archive itself.



                                                                955



   1   Q.  Was it your responsibility to know what was going on in

   2   the LiViD project as its leader?

   3   A.  It was my responsibility in a sense that, you know, I felt

   4   like I founded this project, I started it, this is something I

   5   wanted to do.  I had no obligation, no one was going to punish

   6   me if I didn't follow everything but I had an interest and I

   7   wanted to see a project that I started get completed so I

   8   actively followed the developments of the project.

   9   Q.  Did other people working on the project report to you what

  10   they were doing?

  11   A.  Yes.  We would release status reports on occasion and I

  12   would send out notes to other developers saying give me an

  13   update on, you know, what piece you are working on, where you

  14   see this going, if you need help in a certain area so we could

  15   give the general community an idea of what was going on in a

  16   project for all the people that weren't following the project

  17   directly on the mailing list.

  18            MR. HERNSTADT:  I would suggest that that would

  19   provide the foundation.

  20            THE COURT:  It shows that he knows a lot of hearsay.

  21   I am very interested in what's going on in Camp David and I

  22   read the paper every morning.  I am not capable of testifying

  23   to what's going on at Camp David in a court of law.

  24            MR. HERNSTADT:  I understand.  He is the leader of a

  25   project, they all report to him about what they do.



                                                                956



   1            I will try it a different way.

   2   Q.  Mr. Pavlovich, given what you know about the LiViD

   3   project, can you tell me if it would be necessary if you

   4   wanted to, if you were to write a DeCSS program to do it in

   5   Windows?

   6   A.  I am sorry.  I didn't understand the question.

   7   Q.  Given what you know about the LiViD project and Linux in

   8   or about the fall of 1999, if you are going to write a DeCSS

   9   program, would you have to do it in Windows?

  10            MS. MILLER:  Objection.  I don't understand the

  11   question.  It is completely ambiguous.

  12            THE COURT:  I think the witness and I do, Ms. Miller.

  13   Overruled.

  14            We are now going to hear about the file formats for

  15   the third or fourth time.

  16   A.  The file system found on DVDs is the UDF support for Linux

  17   was in infancy at the time, so one would need to have access

  18   to read the data before being able to decrypt the data on the

  19   disk, so yes someone would have to use windows or an operating

  20   system that supported UDF to develop DeCSS.

  21   Q.  Did you consider testing the LiViD project using

  22   unencrypted disks?

  23   A.  Yes, some of the developers found, you know, through the

  24   course of their testing of the disks, they found a few

  25   unencrypted DVDs.  The main issue of that is there is no



                                                                957



   1   labeling on a DVD when you buy it whether it is encrypted or

   2   unencrypted.  Through my research, I found only a dozen or two

   3   dozen DVDs that are known to be unencrypted.

   4            The other issue, some of the DVDs were found early on

   5   to be unencrypted and either in later pressings or later

   6   releases were then encrypted.

   7   Q.  Is there any other reason you didn't use unencrypted disks

   8   to test the Linux project?

   9   A.  Most DVDs are encrypted and our DVD player wanted to be

  10   full featured.  We wanted to be able to play all the DVDs on

  11   the market.  The other thing here that we really were

  12   developing for was our own personal use but also all the other

  13   users for Linux and limiting the DVD player to only un

  14   encrypted DVDs would have severely hampered the usability of

  15   the Linux DVD player.

  16   Q.  Is the LiViD player project completed?  Is there a player

  17   that works now?

  18   A.  In our initial design, we have kind of had two phases of

  19   the project.  When we first started getting all the necessary

  20   documentation and information needed to develop the LiViD

  21   player, we did a proof of concept design where we put a bunch

  22   of hodge-podge code together and we were able to test whether

  23   everything was going to be technologically feasible.

  24            Over last six or seven months, we designed a new

  25   architecture which is going to allow us to have improved



                                                                958



   1   playback performance, hardware acceleration, support for

   2   multiple hardware decoder part boards and video cords and

   3   currently the DVD player for Linux can play DVDs, decode the

   4   audio.  We have not had a formal release, a version 101 so to

   5   speak, however the program is in a working state.

   6            MR. HERNSTADT:  I would like to have the witness give

   7   a demonstration of the LiViD program here.  It is about a

   8   three or four-minute process to show you how it works and what

   9   it is.

  10            MS. MILLER:  Plaintiffs object to that demonstration

  11   on the grounds of relevance.  Whether or not there is an

  12   unlicensed LiViD DVD player right now has no significance, any

  13   relevance to the issues in this lawsuit.

  14            THE COURT:  I take it your position is you don't

  15   dispute that there is a working unlicensed DVD player, not

  16   that you are conceding it, but you don't care to dispute it

  17   for the case of the trial.

  18            MS. MILLER:  That's correct.

  19            THE COURT:  I don't think we need it then, Mr.

  20   Hernstadt.

  21            MR. HERNSTADT:  If it is not contested, then --

  22            THE COURT:  It is not contested.

  23            (Continued on next page)

  24

  25



                                                                959



   1   BY MR. HERNSTADT:

   2   Q.  Does the LiViD player have a save function that permits

   3   you to copy the movie on the DVD to some place on the hard

   4   drive?

   5   A.  No.  The design of the LiViD DVD player was never geared

   6   around copying.  Our main goal was to get compatibility and

   7   performance of a DVD player so we could support it on as many

   8   systems with as wide a range of hardware as any user would use

   9   as possible, and copying was never a main focus of the

  10   project.

  11   Q.  Have you ever used DeCSS to decrypt a DVD?

  12   A.  Yes.

  13   Q.  When did you do that?

  14   A.  During the course of this trial I used it on Windows to

  15   test, run some tests, test the application, get a feel for it.

  16   Q.  What did you do with the files that you made when you used

  17   the DeCSS program?

  18   A.  The Windows system I used has a very small space allocated

  19   for Windows, only 1 gigabyte, so I'm not able to decrypt the

  20   entire disk.  I decrypted one small piece of it, just tested

  21   it, to see that the application worked, deleted it when I was

  22   done.

  23   Q.  Have you reviewed the source code of DeCSS?

  24   A.  Yes.

  25   Q.  Is that source code in the Linux DVD player now?



                                                                960



   1   A.  The derivatives of the DeCSS are.  The core functions in

   2   DeCSS, the mathematical algorithms and the process for

   3   decrypting were converted from DeCSS back into the LiViD DVD

   4   player.

   5   Q.  Do you know what DivX is?

   6   A.  Yes.

   7   Q.  What is it?

   8   A.  DivX is in the term I have seen it used in these court

   9   proceedings for an MPEG4-based video format.

  10   Q.  Have you ever used DivX?

  11   A.  No.

  12   Q.  Have you ever used any program other than DeCSS and the

  13   one instance you mentioned to decrypt a DVD movie?

  14   A.  I've got a DVD player on my Windows side, my Windows

  15   installation.  That's the only other one.

  16   Q.  But have you ever used a program like DVD Rip?

  17   A.  No.

  18   Q.  Or Speed Ripper?

  19   A.  No.

  20   Q.  Or any other "ripper"?

  21   A.  No.

  22   Q.  Do you own DVDs?

  23   A.  Yes.

  24   Q.  How many?

  25   A.  I've got 20, 25 DVDs.



                                                                961



   1   Q.  Did you buy them?

   2   A.  Yes.

   3   Q.  Have you ever played a DVD that you didn't buy?

   4   A.  Only the ones I rented.

   5            MS. MILLER:  Objection.  Relevance.

   6            THE COURT:  Overruled.

   7   Q.  Have you ever made a decrypted DVD movie available on the

   8   Internet?

   9   A.  No.

  10   Q.  Have you ever made a copy of a decrypted DVD on any

  11   format, VCD, CD, DVD, and made it available to anyone else?

  12   A.  No.

  13   Q.  Or sold it to anyone else?

  14   A.  No.

  15            MR. HERNSTADT:  Thank you very much, Mr. Pavlovich.

  16            THE COURT:  All right.  We will take our afternoon

  17   break, 15 minutes.

  18            (Recess)

  19            THE COURT:  Okay, Ms. Miller, you may proceed.

  20   CROSS-EXAMINATION

  21   BY MS. MILLER:

  22   Q.  Good afternoon, Mr. Pavlovich.

  23   A.  Good afternoon, Ms. Miller.

  24   Q.  I'm correct that you didn't have anything to do with the

  25   creation of DeCSS, right?



                                                                962



   1   A.  Could you please repeat the question.

   2   Q.  I'm correct that you didn't have anything to do with the

   3   creation of DeCSS, that's right, isn't it?

   4   A.  I did not develop any of the code.  However, I started the

   5   project for Linux in which the algorithms in DeCSS were part

   6   of it.

   7   Q.  Now, you talked about performing a test of DeCSS for the

   8   first time after getting involved in this lawsuit, is that

   9   correct?

  10   A.  That is correct.

  11   Q.  The machine that you used to perform your test of DeCSS,

  12   you told me in your deposition that machine actually has a 10

  13   gigabyte hard drive, is that correct?

  14   A.  That's correct.

  15   Q.  That only 1 gigabyte was reserved for Windows to be able

  16   to use DeCSS?

  17   A.  That's correct.

  18   Q.  You testified that the css-auth program was originally

  19   developed as part of the Linux development project for a DVD

  20   player, is that correct?

  21   A.  Yes.

  22   Q.  At what point in time was that program developed, if you

  23   know?

  24   A.  That was in the summer of '99.

  25   Q.  Had you actually reviewed the source code for the css-auth



                                                                963



   1   program?

   2   A.  Yes.

   3   Q.  What functions does the css-auth program perform?

   4   A.  Css-auth does what they call handshaking between the DVD

   5   drive and the decoder on the system, and it passes the keys

   6   that are on a DVD disk and the key that is present in the

   7   player, and it does authentication and matching of those keys

   8   to see if you have a viable match.

   9   Q.  And the css-auth program that you're referring to is

  10   written for the Linux operating system, is that correct?

  11   A.  Yes, yes.

  12   Q.  Now, am I correct that no one on behalf of the LiViD

  13   project sought a license from the DVD-CCA for CSS?

  14   A.  Can you please repeat the question.

  15   Q.  No one from the LiViD project ever sought a CSS license

  16   from the DVD-CCA, is that correct?

  17   A.  There are contributors to the project that were familiar

  18   with the licensing.  The project as a collective never sought

  19   out a license.  There were individuals that were interested in

  20   the development that had understanding of the license, other

  21   people working on other projects.

  22   Q.  So the answer to my question is no one associated with the

  23   LiViD project ever sought a license from the DVD-CCA?

  24   A.  The answer is "sort of," because when you say "a member of

  25   the LiViD project," it's not like we have a list of people who



                                                                964



   1   are in the group.  It's an open development process, and there

   2   were other people what might say they are part of LiViD, one

   3   might say they are not, that did go seek out the license.

   4   Q.  But you testified in your deposition, did you not, that

   5   the LiViD project basically resolved that they wouldn't seek a

   6   DVD-CCA license because of the nondisclosure requirement,

   7   isn't that correct?

   8            THE COURT:  Mr. Hernstadt?

   9            MR. HERNSTADT:  Could we have a page and line number?

  10            THE COURT:  Ms. Miller, I did issue an order on this.

  11   Please just indicate the page and line and just read the

  12   testimony.  Then if you want to ask the witness if the

  13   testimony was true, you can do that.

  14            (Pause)

  15            MS. MILLER:  Sorry, your Honor.  I just need one more

  16   moment to find the testimony.  I'm almost there.

  17            THE COURT:  Fine.

  18            THE WITNESS:  Could I have a copy to review when you

  19   discuss, so I can get the context?

  20            MS. MILLER:  Certainly.

  21            THE COURT:  Do you want to perhaps pass to another

  22   subject and have one of your colleagues look through that?

  23   Mr. Sims will find it.

  24   Q.  Now, you have heard of a company called Sigma Designs, is

  25   that correct, Mr. Pavlovich?



                                                                965



   1   A.  Yes, I have.  I worked with one of their -- I believe he

   2   is a marketing manager at Sigma Designs.

   3   Q.  And can you explain for the Court what Sigma Designs does?

   4   A.  Sigma Designs develops hardware decoder chips for doing

   5   particularly DVD playback.  They released a number of cards

   6   into the market to support that.

   7   Q.  Does Sigma Designs also have a DVD player on the market?

   8   A.  They have an application that works with their hardware

   9   boards.

  10   Q.  And does that application run under Microsoft Windows?

  11   A.  Yes.

  12   Q.  Now, you are aware, are you not, that Sigma Designs is a

  13   CSS licensee, is that correct?

  14   A.  I have not reviewed their documentation.  I don't know

  15   firsthand if they are a licensee.  It would lead me to believe

  16   that they are, due to the fact that they released equipment

  17   onto the market.

  18   Q.  Now, are you also aware that Sigma Designs recently

  19   announced plans to develop a Linux DVD player?  Is that

  20   correct?

  21   A.  Yes, they are releasing plans to develop a DVD player to

  22   support their next generation adapter.  In fact I'm on the

  23   list of beta developers for that card.

  24   Q.  Now, did anyone from Sigma Designs ever post anything to

  25   the LiViD mailing list?



                                                                966



   1   A.  Marshall Goldberg.  He was the gentleman who was the

   2   marketing manager that I worked with.

   3   Q.  Now, it's correct, isn't it, that Mr. Goldberg posted a

   4   message to the LiViD mailing list expressing concern about the

   5   legality of LiViD's development activities in creating an

   6   unlicensed DVD player, correct?

   7            MR. HERNSTADT:  Objection.  Hearsay.

   8            THE COURT:  I take it it's not offered for the truth.

   9            MS. MILLER:  That's correct, your Honor.

  10            THE WITNESS:  Could you please repeat the question.

  11   Q.  It's correct, isn't it, that Mr. Goldberg expressed some

  12   concern on the LiViD mailing list about the LiViD team's

  13   development of an unlicensed DVD player for Linux, isn't that

  14   true?

  15   A.  I believe he did.  I would have to review the archives to

  16   be sure.

  17   Q.  Do you recall testifying in your deposition about

  18   Mr. Goldberg's mailing list posting?

  19   A.  Yes, I believe you showed me one of the postings, and upon

  20   reading it I recognized the message.

  21   Q.  And isn't it also true that Sigma Designs declined to

  22   release to LiViD certain of their specifications for their

  23   interface cards because of their nondisclosure requirements

  24   under the CCA's license?

  25   A.  I don't know the disclosure requirements under the CSS



                                                                967



   1   license.  However, Marshall expressed to me that they could

   2   not release any specification on their most popular board,

   3   which was the Sigma Designs known as the H Plus Board,

   4   however, we did learn that that board did not do any CSS

   5   routines that we knew of, and that board was reverse

   6   engineered, or the driver for that was reverse engineered, and

   7   support for that board is now going to be available in the

   8   LiViD player.

   9   Q.  You also know the name Paul Bocco, is that correct?

  10   A.  That's correct.

  11   Q.  Paul Bocco is one of the leaders of another team referred

  12   to as LS DVD, is that not correct?

  13   A.  That is correct.  LS DVD has also worked with LiViD.  We

  14   have been working to try to create a cohesive set of tools so

  15   that our code sets could work together as best possible.

  16   Q.  In fact the LS DVD project members and LiViD project

  17   members shared information about their ongoing development

  18   efforts for Linux DVD players, correct?

  19   A.  Yes, that's correct.

  20   Q.  Now Mr. Bocco also expressed some concern on the LiViD

  21   mailing list about creating an unlicensed DVD player, isn't

  22   that correct?

  23   A.  That is correct.

  24   Q.  And as far as you know, is the LiViD -- excuse me -- is

  25   the LS DVD team now seeking licensing from the DVD-CCA?



                                                                968



   1   A.  I believe they are.  Paul sent an update to the list,

   2   mentioning that they had found a company to help fund the

   3   necessary -- or to raise enough money to buy the licensing and

   4   what not.

   5            However, I think it's important to note that we have

   6   seen no code from either of these companies yet, and that

   7   their announcements have been met with skepticism.  The common

   8   term used is vaporware, meaning somebody announces they are

   9   going to do something in the future, we are going to release

  10   widget A or application B, and a lot of times they never

  11   materialize.  As of yet both of those people have made

  12   announcements they are going to do it, however, we have not

  13   seen any fruits of their labor.

  14   Q.  Now, you testified earlier this afternoon that you have

  15   never used any rippers like DVD Rip or Power Rip and the Power

  16   Ripper, is that correct?

  17   A.  That is correct.

  18   Q.  You submitted a declaration in this lawsuit, is that

  19   correct?

  20   A.  I submitted two.

  21   Q.  Okay.  And do you recall the date of the first declaration

  22   that you submitted in this lawsuit?

  23   A.  I believe it was the end of April, beginning of May.

  24            MS. MILLER:  Your Honor, may I approach the witness?

  25            THE COURT:  Yes.



                                                                969



   1   Q.  Mr. Pavlovich --

   2   A.  Could you just give me one second to just take a quick

   3   gander here.

   4            THE COURT:  You have given him Defendants' BBO, as I

   5   understand it, is that right?

   6            MS. MILLER:  I actually thought it had been

   7   designated as Defendants' S.

   8            MR. HERNSTADT:  Defendants' S is what I have.

   9            THE COURT:  S?

  10            THE WITNESS:  I have BBO at the bottom.

  11            THE COURT:  Mine and the witness's are BBO, and BBO

  12   it is.

  13            MR. HERNSTADT:  May I inquire, is that the

  14   declaration dated April 30?

  15            THE COURT:  Yes.

  16            MR. HERNSTADT:  Thank you.

  17   Q.  Mr. Pavlovich, have you reviewed the declaration?

  18   A.  Yes.

  19   Q.  Do you recognize this as the first declaration you filed

  20   in this case?

  21   A.  Yes.

  22   Q.  I would like to direct your attention to page 6, paragraph

  23   13 of that declaration.

  24   A.  Okay.

  25   Q.  Paragraph 13 you state, "At the same time, other tools for



                                                                970



   1   copying movies from DVDs such as DVD Rip (a program that

   2   intercepts the decrypted DVD data stream and creates a freely

   3   copiable data file) and Power Ripper are widely available and

   4   were for months prior to the release of DeCSS.  Additionally,

   5   they are the tools used when digital-to-digital (for instance

   6   DVD to VCD) copies are made from DVDs, because they are much

   7   easier to use than DeCSS."

   8            Have I just accurately read paragraph 13 of your

   9   declaration?

  10            THE COURT:  You don't have to ask that question.

  11   It's right in front of us.  Next question, please.

  12   A.  Yes.

  13   Q.  Did you write this paragraph of your declaration?

  14   A.  Yes.

  15   Q.  But you had actually never used either one of these

  16   rippers --

  17   A.  No.

  18   Q.  -- prior to writing this paragraph?

  19            THE COURT:  In other words, it's correct that you

  20   have never used any of these other rippers?

  21            THE WITNESS:  That is correct.

  22   Q.  You also indicated in your deposition, did you not, that

  23   your only knowledge about Power Ripper is that it has

  24   something to do with DVDs and that it's a Windows program.

  25   A.  Yes.



                                                                971



   1            MR. HERNSTADT:  Your Honor, could we have a page and

   2   line?

   3            MS. MILLER:  Certainly.  That would be page 99 of the

   4   deposition, line 11 through line 25.

   5            THE WITNESS:  Could I get a copy of the deposition?

   6   I have not received it.

   7            THE COURT:  It's not necessary right now,

   8   Mr. Pavlovich.  Let's please move on with this.

   9            THE WITNESS:  I apologize.

  10            THE COURT:  I wasn't being impatient with you,

  11   Mr. Pavlovich.  I issued an order in this case two weeks ago

  12   explaining exactly how to do this, and I have reiterated it

  13   several times during the trial.

  14   Q.  Now, Mr. Pavlovich, you also have told me in your

  15   deposition, and I am reading now from page 100, line 14

  16   through 15, and I asked you:

  17   "Q.  What about DVD Rip?"  And your answer:

  18   "A.  I have never heard of DVD Rip."

  19            Was that an accurate statement in your deposition?

  20   A.  I believe if that's how you are reading it from the paper,

  21   yes.

  22            THE COURT:  That wasn't the question.  Was the

  23   testimony you gave in the deposition truthful, the portion

  24   that was just read to you?

  25            THE WITNESS:  No, I mean I have heard of DVD Rip.



                                                                972



   1   Q.  And at what point in time did you hear of DVD Rip?  Was it

   2   prior to your declaration?

   3   A.  I don't have a date when I remember hearing about DVD Rip.

   4   You know, through the course of developing the DVD player and

   5   researching it.

   6            THE COURT:  Had you heard of it before your

   7   deposition was taken?

   8            THE WITNESS:  Yes.

   9            THE COURT:  So when you testified in your deposition

  10   you never heard of it, you testified falsely.  Is that about

  11   the size of it?

  12            THE WITNESS:  Yes.

  13            THE COURT:  Is there some particular reason why you

  14   did that?

  15            THE WITNESS:  Not that I can think of now.

  16            THE COURT:  Let's go on.

  17            MS. MILLER:  No further questions, your Honor.

  18            THE COURT:  Thank you.  Mr. Hernstadt?

  19   REDIRECT EXAMINATION

  20   BY MR. HERNSTADT:

  21   Q.  Mr. Pavlovich, do you remember being asked about DVD Rip

  22   at your deposition?

  23   A.  Not particularly.

  24   Q.  Were you trying to hide something in your testimony when

  25   you said you had never heard of it?



                                                                973



   1   A.  No.  There is a lot of utilities out there available along

   2   this genre, and I think it's difficult to keep track of the

   3   exact names of everything.

   4            When you know of an application and you wish to

   5   research it and what it does, it's very easy to go and make a

   6   search of it and find that application and find the specific

   7   name of it.  There are literally dozens of applications along

   8   these lines, and I made a mistake.

   9   Q.  Mr. Pavlovich, where is the information about the LiViD

  10   project stored?

  11   A.  On the LiViD website.  It has the links to all the

  12   information for the project.

  13   Q.  Is that information available to anyone?

  14   A.  Yes, it's publicly available.

  15   Q.  You were asked why you didn't go to the DVD-CCA for a

  16   license.  Why didn't you?

  17   A.  There was a long discussion on the LiViD development list

  18   on that topic, and many people are expressing several

  19   different opinions.

  20            One of the major deciding factors was the license

  21   that we were using for developing a Linux DVD player was the

  22   GNU public license, and it would provide an incompatibility

  23   with what we knew of the CSS license.  And there is also the

  24   issue of raising the funds and coordinating who would handle

  25   the actual facilitation of the licensing and be bound to the



                                                                974



   1   contract, etc.

   2   Q.  When you say "incompatibility," can you explain what you

   3   mean by that?

   4   A.  The GNU public license is a license placed on the software

   5   and it's a legal incompatibility.  GNU public license was

   6   designed to protect code that was released under that license

   7   so people couldn't take it, make a modification and sell it

   8   without providing the source which they changed.  That's in a

   9   nutshell what the core function of the license is.  And what

  10   we knew of the CSS license, we would not be able to release

  11   the source code for the CSS in the DVD player.

  12   Q.  In writing software for Linux applications is reverse

  13   engineering a tool that you use?

  14   A.  Reverse engineering is I think better defined as a method

  15   or a process.  It's kind of a general term.  Yeah, reverse

  16   engineering is used all the time under Linux development

  17   projects.  Hardware manufacturers often don't release all the

  18   necessary information on products, whether it be an interface

  19   for talking to graphics hardware, file sharing technology.

  20            For example, one project that I followed very closely

  21   over its development is the SAMBA project which incorporates

  22   file sharing for UNIX systems in between Microsoft Windows

  23   systems.  Microsoft provided information on the file

  24   technology, however they did not release all the information

  25   needed.  They made a few changes to the protocol so it would



                                                                975



   1   be impossible to develop a compatible program to talk to

   2   Microsoft systems on a non-Microsoft system.  So the SAMBA

   3   team had to reverse engineer the SMB protocol across the wire

   4   to effectively communicate with Microsoft systems.

   5   Q.  Thank you.  You were asked if you had done a declaration.

   6   You said you had done two declarations.

   7            MR. HERNSTADT:  May I approach, your Honor?

   8            THE COURT:  Yes.

   9   Q.  Mr. Pavlovich, is that the second declaration you did in

  10   this case?

  11   A.  Yes.

  12            MR. HERNSTADT:  I move the two declarations into

  13   evidence.

  14            MS. MILLER:  Your Honor, objection to moving the

  15   first declaration into evidence.  As I read the declaration,

  16   there are several statements in there that would purport to

  17   give opinion testimony about Linux and other things having to

  18   do with reverse engineering and system development.  I don't

  19   think that Mr. Pavlovich has been properly qualified as an

  20   expert under Rule 702, so we would object on that basis.

  21            Also, there seems to be some discrepancy particularly

  22   as to paragraph 13 of the first declaration, whether in fact

  23   that's true or if he has personal knowledge of the facts that

  24   he related in that paragraph, given that he testified today

  25   that he has never used any rippers.



                                                                976



   1            THE COURT:  And the second declaration?

   2            MS. MILLER:  The second declaration, in so far as

   3   Mr. Pavlovich is explaining what DeCSS does, I am going to

   4   object on the ground that we have already heard testimony from

   5   Jon Johansen about what DeCSS does on that basis.  That would

   6   be cumulative.  I also understand that he is responding in the

   7   second declaration to some of the information in

   8   Mr. Schumann's declaration, which is at issue with some of the

   9   aspects of Mr. Pavlovich's first declaration.  So on that

  10   basis we have no problem, but certainly as to paragraph 5, the

  11   second declaration, purporting to say what Mr. Johansen said

  12   about the purpose of DeCSS, we would move to strike that or at

  13   least not have it offered into evidence.

  14            THE COURT:  Look, Mr. Hernstadt, I have a problem

  15   with this.  You had the witness here on direct, you could have

  16   asked him anything you wanted to ask him, and to come in on

  17   redirect with two declarations, narrative material, part of

  18   which is incompetent, part of which is hearsay, part of which

  19   is beyond the scope of the cross, you are opening the witness

  20   all over again.

  21            MR. HERNSTADT:  I will withdraw the question, your

  22   Honor.

  23            THE COURT:  All right.

  24            MR. HERNSTADT:  Thank you very much, Mr. Pavlovich.

  25   Nothing further.



                                                                977



   1            THE COURT:  Anything else for Mr. Pavlovich,

   2   Ms. Miller?

   3            MS. MILLER:  Nothing, your Honor.

   4            THE COURT:  Thank you, Mr. Pavlovich.  You are

   5   excused.

   6            All right.  In view of the hour, let's get to the

   7   housekeeping stuff you people wanted to raise, because I have

   8   another matter at 4:30.

   9            MR. ATLAS:  I don't think we need to do it on the

  10   record unless your Honor wishes.

  11            THE COURT:  I think in this case I want to do

  12   everything on the record.

  13            MR. ATLAS:  Fair enough.  Should we come up or do it

  14   from here?

  15            THE COURT:  You can do it from there.

  16            MR. ATLAS:  Really it's just an issue of how your

  17   Honor wants the deposition designations and some of the

  18   documents.

  19            My thought, and I have talked about it with Mr. Sims,

  20   would be to move into evidence the depositions.  What we have

  21   done is we have marked the actual transcripts, we have

  22   bracketed them, and I believe at the front of each deposition

  23   is sort of a designation page that we have designated these

  24   pages, they have objected, or they have counterdesignated and

  25   we have countered the counters in some instances.



                                                                978



   1            THE COURT:  I am almost 100 percent sure about two or

   2   three weeks ago I issued an order of a page or two explaining

   3   exactly how this was to be done.  Did that somehow escape

   4   everybody's attention?

   5            MR. SIMS:  I thought Mr. Atlas wasn't clear.

   6            THE COURT:  I want to know what the question is

   7   exactly.

   8            MR. ATLAS:  I assume we will move those kings into

   9   evidence, and the Court as it goes through the evidence in

  10   this case will decide on the objections as it is necessary.

  11            THE COURT:  Sure.

  12            MR. ATLAS:  The second thing is with respect to the

  13   documents, Mr. Sims has provided me with a list of the

  14   exhibits he wishes to move wholesale into evidence.  I am

  15   going through that now.  I think a lot of them I don't have a

  16   problem with, some of them I do and I am noting those

  17   objectives.  I am going to do the same thing.

  18            Now, we will do the same process, move all those

  19   documents into evidence, and the Court will as its going

  20   through the material decide whether my objections or

  21   Mr. Sims's objections are valid and decide whether the

  22   documents stay in evidence.

  23            THE COURT:  I am not sure how we are going to do the

  24   documents.  It is going to depend on volume.

  25            MR. ATLAS:  My goal this weekend is to significantly



                                                                979



   1   narrow the volume.

   2            THE COURT:  Well, I would certainly hope you both do

   3   that.  Plaintiffs identified a hundred and some.

   4            MR. SIMS:  We have provided a much smaller list, less

   5   than a third.

   6            THE COURT:  And you provided well over a thousand.

   7            MR. ATLAS:  I promise you it will be less than a

   8   third.

   9            THE COURT:  Yes, I can't even begin to imagine that

  10   all of that stuff is necessary.

  11            MR. ATLAS:  That's what we are going to do.  Assuming

  12   you want the process to be handled the same way, which is we

  13   give you everything and you rule on the objections, the only

  14   wrinkle to that is the documents marked privileged and

  15   confidential, attorneys eyes only.  Do you want to handle

  16   those any differently?

  17            THE COURT:  How many of those are there going to be?

  18            MR. ATLAS:  I don't know.  I'm going to go through

  19   that this weekend.

  20            THE COURT:  "It depends" is the short answer.

  21            MR. ATLAS:  I anticipate coming on Tuesday with all

  22   this stuff ready to go and at that point we can decide

  23   whatever we want to do and we will provide it.

  24            THE COURT:  What is left on defendants' case?

  25            MR. ATLAS:  It looks like we have four, possibly five



                                                                980



   1   witnesses left.  My best guess is it would be hard to imagine

   2   we would go past Wednesday on this.  Again that's just an

   3   estimate of what I know from these witnesses and how long the

   4   direct is.  Obviously it would be subject to whatever cross.

   5   But we have been moving at a pretty fast clip unless it slows

   6   down significantly.

   7            THE COURT:  Who are the remaining witnesses?

   8            MR. ATLAS:  I will give you the possible choices.

   9            THE COURT:  This sounds look a trade for a pitcher.

  10            MR. ATLAS:  Mr. Einhorn, Mr. Touretzky, Mr. Appel,

  11   Mr. DiBona and Mr. Abelson are sort of the potentials, and

  12   over the weekend we are going to work out exactly who we feel

  13   we need, and we will advise plaintiffs' counsel as soon as we

  14   know.

  15            THE COURT:  I assume -- Mr. Cooper?

  16            MR. COOPER:  I just want to know for our own

  17   preparation over the weekend that there is not anyone else

  18   they are contemplating so that we won't fail over the weekend

  19   to prepare for somebody and then find on Tuesday that they are

  20   being offered.

  21            MR. ATLAS:  Just give me a second.

  22            THE COURT:  Look, I am taking that until I hear some

  23   spectacularly wonderful reason nobody other than these five

  24   are going to get on the stand.

  25            MR. ATLAS:  Possibly Olegario Craig.  Definitely him.



                                                                981



   1            THE COURT:  I assume the plaintiffs have some clue as

   2   to what these people are all about, right?

   3            MR. SIMS:  These people have all been deposed.

   4            THE COURT:  Okay.  So, if, as seems entirely likely,

   5   this is the rest of the defendants' case, is there likely to

   6   be a rebuttal case?

   7            MR. GOLD:  Your Honor, we have been discussing that

   8   for several hours last night, and today's testimony threw some

   9   question on it, so if there is a rebuttal witness it will be

  10   short.  He personally is fairly tall, but he will only testify

  11   for less than an hour.

  12            THE COURT:  I am glad we are beginning to get some

  13   humor into this case.

  14            MR. ATLAS:  Is there a name, or you don't know who it

  15   would be?

  16            THE COURT:  Whoever this is is not testifying before

  17   Wednesday, right?

  18            MR. GOLD:  Obviously.

  19            MR. ATLAS:  It sounds like it may be somebody who has

  20   not surfaced in the case.  If that's the case, then I would

  21   request an opportunity to depose them beforehand.

  22            MR. GOLD:  Well then that's reasonable, and we will

  23   tell you and you can depose this person on Monday or Monday

  24   night.

  25            THE COURT:  All right.  That sounds cooperative and



                                                                982



   1   reasonable.  All right.  Anything else?

   2            MR. GOLD:  No, your Honor.

   3            THE COURT:  Okay.  Thank you folks.

   4            (Trial adjourned to July 25, 2000 at 9:00 a.m.)

   5

   6

   7

   8

   9

  10

  11

  12

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25



                                                                983



   1

   2

   3                        INDEX OF EXAMINATION

   4   Witness                    D      X      RD     RX

   5   LARRY PETERSON...........856    882     883

   6   PETER RAMADAGE...........884    932

   7   MATTHEW PAVLOVICH........940    962     973

   8                         DEFENDANT EXHIBITS

   9   Exhibit No.                                Received

  10    BDC .........................................862

  11    BBD .........................................863

  12    BDE .........................................889

  13    BDF and BDG .................................929

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25






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