1
1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
3
4 UNIVERSAL CITY STUDIOS, INC., :
PARAMOUNT PICTURES CORPORATION, :
5 METRO-GOLDWYN-MAYER STUDIOS INC.,:
TRISTAR PICTURES, INC., COLUMBIA :
6 PICTURES INDUSTRIES, INC., TIME :
WARNER ENTERTAINMENT, CO., L.P.,
7 DISNEY ENTERPRISES, INC., and :
TWENTIETH CENTURY FOX FILM :
8 CORPORATION, :
:
9 Plaintiffs : Civil Action Number
: 0277
10 v. :
:
11 ERIC CORLEY a/k/a EMMANUEL :
GOLDSTEIN and 2600 ENTERPRISES :
12 :
Defendants :
13 - - - - - - - - - - - - - - - - -X
14
15 DEPOSITION OF JACK VALENTI
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17
18 Washington, D.C.
19 Tuesday, June 6, 2000
20
21
22 Reported by:
23 Roxanne Easterwood, Court Reporter
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2
1 Deposition of Jack Valenti, called
2 for examination pursuant to notice of deposition,
3 on Tuesday, June 6, 2000, in Washington, D.C. at the
4 law offices of Proskauer Rose, LLP at 8:44 a.m.
5 before ROXANNE M. EASTERWOOD, a Notary Public within and
6 for the District of Columbia, when were present
7 on behalf of the respective parties:
8
9
10 MARTIN GARBUS, ESQ.
11 EDWARD HERNSTADT, ESQ.
12 Frankfurt Garbus Klein & Selz, PC
13 488 Madison Avenue
14 New York, NY 10022
15 (21) 826-5522
16 On behalf of Defendants
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20
21 --continued--
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1 APPEARANCES (CONTINUED):
2
3 SCOTT P. COOPER, ESQ.
4 Proskauer Rose, LLP
5 2049 Century Park East, Suite 3200
6 Los Angeles, CA 90067-3206
7 (310) 284-5669
8 On behalf of Plaintiffs
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1 MR. HERNDSTADT: My name is Raymond R. Brown.
2 I'll be operating the video equipment for this
3 deposition. My address is 1717 Corcoran Street,
4 Washington, D.C. I'm employed by Ray Brown &
5 Associates and representing Interim Court
6 Reporting.
7 This deposition is being taken pursuant
8 to notice is case number 0277, entitled Universal
9 City Studies, Incorporated, et al., versus Corley
10 before the U.S. District Court, Southern District
11 of New York.
12 The witness today is Mr. Jack Valenti.
13 Today is June 6th, 2000. We're at the offices of
14 Proskauer Rose, LLP in Washington, D.C. Time is
15 indicated electronically on the lower portion of
16 the television. Currently 8:45:30 seconds.
17 At this time counsel will identify
18 themselves and indicate which parties they
19 represent. The court reporter will then identify
20 herself, and I will administer the oath to the
21 witness.
22 MR. COOPER: Good morning. I'm Scott Cooper
23 of Proskauer Rose, LLP for the Plaintiffs and
24 representing Mr. Valenti in this deposition. Mark
25 you want to identify yourself?
5
1 MR. LITVAK: Mark Litvak, counsel for the
2 Motion Picture Association of America.
3 MR. HERNDSTADT: Edward Hernstadt.
4 Frankfurt, Garbus, Klein & Selz for defendants.
5 MR. GARBUS: Martin Garbus, Frankfurt,
6 Garbus, Klein & Selz the Defendant.
7 MR. COOPER: Let me note for the record that
8 this deposition was arranged for the convenience
9 of Mr. Garbus and Mr. Hernstadt, and at their
10 express request, to commence this morning at 8:00
11 a.m. here in Washington. We've gone to a lot of
12 trouble to accommodate them and be here. We are
13 now starting at 8:45. The court reporter they
14 arranged for just arrived. They themselves didn't
15 arrive until 8:30.
16 I also note for the record that
17 Mr. Valenti is here at considerable personal
18 inconvenience. He is not feeling well this
19 morning and has some kind of bug. He is here to
20 proceed with this deposition notwithstanding that,
21 and my understanding is we're going to go until
22 noon so that Mr. Garbus and Mr. Hernstadt can fly
23 back to New York.
24 MR. GARBUS: Perhaps we can stay for an hour
25 later if Mr. Valenti is's up to it. We'll let
6
1 Mr. Valenti decide that.
2 With respect to this morning, we took a
3 6:30 flight down, which should have gotten us here
4 in plenty of time. The weather held us down in La
5 Guardia, which is why we're half an hour late.
6 VIDEOGRAPHER: Madam Reporter, would you
7 identify yourself? I'll swear the witness.
8 REPORTER: Roxanne Easterwood with Interim
9 Reporting.
10 P R O C E E D I N G S
11 Whereupon,
12 JACK VALENTI
13 was called as a witness and, having first been duly sworn,
14 was examined and testified as follows:
15 EXAMINATION
16 VIDEOGRAPHER: We're on the record,
17 gentlemen.
18 BY MR. GARBUS:
19 Q Mr. Valenti, who are the members of the
20 DVD CCA?
21 A I don't know.
22 Q Do you know who the DVD CCA is?
23 A No.
24 Q Do you know who issues the licenses to
25 the hardware manufacturers that play DVDs?
7
1 A No.
2 Q Do you know who issues the licenses to
3 the replicators that make DVDs from the films that
4 are submitted to them?
5 A No, I do not.
6 Q Have you ever met anybody at the DVD
7 CCA?
8 A Not that I'm aware of.
9 MR. COOPER: Calls for speculation.
10 BY MR. GARBUS:
11 Q Do you know what that entity is at all?
12 A No, I don't.
13 Q Do you know who controls the licenses
14 for DVDs?
15 A No, I don't.
16 Q Have you ever been advised by your
17 attorneys who controls the licenses for DVDs?
18 MR. COOPER: Objection. Calls for
19 attorney-client communication, and expressly so on
20 that.
21 BY MR. GARBUS:
22 Q Do you know the name of the Defendant in
23 this case?
24 A I'm not sure. I'm just not sure.
25 Q Well, what is your best recollection of
8
1 what's the Defendant's name?
2 A 2600.
3 Q Now, does the name Goldstein mean
4 anything to you?
5 A No.
6 Q Does the name Corley mean anything to
7 you?
8 A How do you spell it.
9 Q C-O-R-L-E-Y.
10 A No.
11 Q Never heard those names before?
12 A No.
13 Q Now, what does 2600 do?
14 A Well, one thing they do is make T-shirts
15 with my picture on it.
16 Q Does the -- do you know who makes the
17 hardware for DVDs?
18 A No, I don't.
19 Q Have you had any discussion with the
20 hardware makers of DVDs about piracy?
21 A No. Not I'm aware of. I'm not aware of
22 any discussions I've had.
23 Q Do you know how DECSS work?
24 A Not really.
25 Q Do you know when it was first posted on
9
1 the internet?
2 A I don't recall.
3 Q Is there any document that would refresh
4 your recollection?
5 A I'm not aware of any.
6 Q Do you know when Mr. Goldstein allegedly
7 or 2600 allegedly first posted DECSS?
8 A No, I don't.
9 MR. COOPER: Let me just make a point here
10 that I believe should be clear, and that is to the
11 extent that the answer to any of the questions
12 Mr. Garbus asks is known to you only through
13 communications from counsel you should not provide
14 the substance of those communications in answering
15 the question.
16 BY MR. GARBUS:
17 Q Can you tell me something about the
18 relationship between the MPAA and the eight
19 plaintiffs in this lawsuit?
20 A I don't understand what you mean. What
21 do you mean the relationship?
22 Q Do you know who the plaintiffs are?
23 A Plaintiffs are member companies of the
24 association.
25 Q Does the MPA on their behalf act in anti
10
1 piracy matters?
2 A Yes, we do.
3 Q You, for example, how long have you been
4 the head of the MPAA?
5 A 34 years.
6 Q During the course of time you've
7 testified before congress?
8 A Yes.
9 Q Approximately how many times?
10 A I haven't any idea. A lot.
11 Q More or less than 1000?
12 A Oh, no. I haven't testified 1000 but a
13 lot.
14 Q 300?
15 A I haven't any idea.
16 Q You've also over those 34 year met with
17 senators to discuss MPAA matters?
18 A From time to time, yes.
19 Q You have appeared before subcommittees
20 of the congress to testify about DMCA and other
21 related matters?
22 A Yes.
23 Q You have been on television both with
24 respect to your role as MPAA president and in your
25 previous life?
11
1 A Yes.
2 Q Can you just tell us for a moment what
3 your previous life consisted of?
4 MR. COOPER: It's ambiguous.
5 THE WITNESS: Before I was named chief
6 executor officer of MPA and MPAA I was special
7 assistant to the president of the United States
8 for three years.
9 BY MR. GARBUS:
10 Q During the course of that time were you
11 on television?
12 A Yes.
13 Q Were you quoted in the press?
14 A More than I chose to be.
15 Q Have you been quoted in the press since
16 you've been the head of the MPAA?
17 A A number of time.
18 Q When you say a number of times, would
19 you agree with me it's been thousands and
20 thousands of time?
21 A I can't give you a number. I haven't
22 any idea. I hesitate to give you a precise number
23 because I don't know.
24 Q In addition to testifying before
25 congress have you spoken before other groups in
12
1 the last 34 years?
2 A Yes.
3 Q What kind of groups are those?
4 A Conferences, seminars, colleges,
5 universities, various organizations in
6 broadcasting and cable, et cetera.
7 Q And you do that each year?
8 A I beg your pardon?
9 Q You do that each year. And you have
10 been doing it each year for most of the 34 years
11 you've been head of the MPAA?
12 A Yes.
13 Q Again, I presume -- could we assume that
14 you speak at least 100 times a year, and over 34
15 years that's --
16 A No, not that much. No. I don't speak
17 100 times a year. 100 times a year would be nine
18 time as month. I don't do that.
19 Q Could you give me your best
20 approximation?
21 A I don't know. I haven't any idea. I
22 couldn't give you a number. I just don't know.
23 Q You testified before congress an the
24 DMCAA legislation?
25 A Yes, sir.
13
1 Q You've issued a number of statements
2 about that legislation?
3 A Yes.
4 Q You've issued a number of statements
5 concerning this particular case?
6 A Probably.
7 Q You've issued a number of statements
8 concerning the Santa Clara case, the DVD CCA case?
9 MR. COOPER: Assume facts not in evidence.
10 You mean him?
11 MR. GARBUS: Yes.
12 BY MR. GARBUS:
13 Q You or the MPAA or you on behalf of the
14 MPAA?
15 A What was --
16 MR. COOPER: Ambiguous and compound.
17 THE WITNESS: I didn't understand the
18 question.
19 MR. COOPER: Could you please read it to him
20 again?
21 (The reporter read the record as
22 requested.)
23 THE WITNESS: DVD case in Santa Clara?
24 MR. GARBUS: Yes.
25 THE WITNESS: I don't know anything about it.
14
1 BY MR. GARBUS:
2 Q You don't know anything about a lawsuit
3 that's been filed in Santa Clara by DVD CCA
4 against individuals who allegedly had DECSS or
5 downloaded DECSS?
6 A Not to my knowledge.
7 Q Today's the first time that you've heard
8 of a DVD CCA case?
9 MR. COOPER: Excluding any conversations with
10 counsel. It would be the same admonition with
11 respect to any of these issues.
12 THE WITNESS: Probably, yes.
13 BY MR. GARBUS:
14 Q No others only through counsel?
15 MR. COOPER: No, Counsel. That's not an
16 appropriate question.
17 MR. GARBUS: Sure, it is.
18 MR. COOPER: No, it isn't. Now, if you want
19 to go off the record and have a conversation about
20 how to inquire of a witness without intentionally
21 intruding on the attorney-client privilege, I'd be
22 happy to do that.
23 MR. GARBUS: No. We'll get a ruling.
24 BY MR. GARBUS:
25 Q Now, with respect to a DVD that's been
15
1 de-encrypted by DECSS, have you ever seen one?
2 A Have I ever seen a DVD encrypted?
3 Q De-encrypt by DECSS?
4 A No, I don't.
5 Q Has anyone ever told you that a DVD has
6 been de-encrypted by DECSS?
7 A I don't recall.
8 Q Has anyone ever told you that they had
9 ever seen on the internet a DVD de-encrypted by
10 DECSS?
11 A I don't recall.
12 Q Do you know whether or not any of the
13 defendants in this case ever de-encrypted a DVD
14 through DECSS?
15 A I'm not aware.
16 Q When you say you're not aware does that
17 mean you don't know?
18 A That's a good synonym.
19 Q Okay. When you said before you don't
20 recall, did that also mean you don't know?
21 A Well, I don't recall when -- meaning, I
22 don't recall. I mean, that's a -- that's a simple
23 declarative English sentence: I don't recall.
24 Q So there's a difference in your mind
25 between I don't recall and I'm not aware?
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1 MR. COOPER: Is this a semantic discussion?
2 MR. GARBUS: No. I just want to know where
3 we go with respect to the questions.
4 THE WITNESS: Well, the answer is, I'm fairly
5 informed about the mother tongue. And seems to me
6 I don't recall or I'm not aware means I have a
7 vague understanding of it and I'm not sure.
8 BY MR. GARBUS:
9 Q Thank you. Are there any documents that
10 you could use to refresh your recollection as to
11 whether or not you know if this defendant is --
12 whether anyone has ever seen this defendant's take
13 a DVD and de-encrypt it through DECSS?
14 MR. COOPER: Would you read back the
15 question, please?
16 (The reporter read the record as
17 requested.)
18 THE WITNESS: I'm sorry, because I've got 102
19 fever and it's affecting my ears. I just did not
20 hear.
21 MR. COOPER: Could you read it back more
22 loudly?
23 BY MR. GARBUS:
24 Q Do you want to take a break from the
25 deposition?
17
1 A No. This is fine. I'm going to do the
2 best I can. When I find out I can't go anymore
3 I'll tell you, but right now I want to continue
4 this. I just need -- I didn't understand the
5 question. I'm so sorry.
6 Q Okay. Let the rephrase it to you again.
7 A Okay. Please do.
8 Q Do you have any document or have you
9 seen any documents that could refresh your
10 recollection as to whether or not Goldstein ever
11 de-encrypted a DVD through DECSS?
12 A I'm not aware of any documents.
13 Q Have you ever seen any documents which
14 have ever indicated that anyone has made a copy of
15 a DVD through DECSS after getting the DECSS from
16 Goldstein?
17 A I'm not aware of any.
18 Q To your knowledge, has anyone at the MPA
19 ever reported to you that any of the Goldstein
20 sites, sites, have led to any copies of any DVDs?
21 MR. COOPER: Excluding any conversations
22 you've had with counsel.
23 THE WITNESS: If that happened it was with my
24 counsel -- with my lawyers.
25 BY MR. GARBUS:
18
1 Q Do you have any independent recollection
2 now?
3 A No.
4 Q Now, have you seen any documents which
5 have indicated to you that anybody has made a copy
6 of DECSS and then used that to de-encrypt a DVD?
7 A I'm not aware of such document.
8 Q Have you ever seen a document which says
9 that anyone used any information from Goldstein's
10 2600.com to de-encrypt a DVD through DECSS?
11 A I'm not aware.
12 Q Have you ever seen any such documents
13 that relate to that?
14 A Not I'm aware of.
15 Q With respect to Mr. Goldstein or
16 2600.com's linking and the other sites that they
17 link to, has anyone ever told you that anyone has
18 ever made a copy of a DVD through de-encryption
19 through DECSS as a result of the information they
20 got from the channels from the web sites that were
21 linked to Goldstein?
22 MR. COOPER: Would you read back the
23 question, please?
24 (The reporter read the record as
25 requested.)
19
1 THE WITNESS: I don't recall.
2 BY MR. GARBUS:
3 Q With respect to a DVD that has been
4 de-encrypted through DECSS, can you fast forward
5 it?
6 A I don't know.
7 Q Can you edit such a DVD?
8 MR. COOPER: Ambiguous.
9 BY MR. GARBUS:
10 Q Can you edit a DVD that has been
11 deconstructed through DECSS?
12 A Ambiguous.
13 MR. HERNDSTADT: De-encrypted.
14 THE WITNESS: My answer is I don't know.
15 BY MR. GARBUS:
16 Q Can you edit a DVD that has been
17 de-encrypted through DECSS?
18 MR. COOPER: Ambiguous.
19 THE WITNESS: I don't know.
20 BY MR. GARBUS:
21 Q Has anyone ever told you that you can
22 edit a DVD through DECSS?
23 A I have no recollection of that.
24 Q Do you know what the Linux machine is?
25 MR. COOPER: Assumes facts not in evidence?
20
1 THE WITNESS: I beg pardon?
2 MR. COOPER: I said it assumes facts not in
3 evidence.
4 BY MR. GARBUS:
5 Q Go ahead, sir.
6 A I've heard of Linux.
7 Q What is it?
8 A As I understand, it's an open source
9 system that a number of computer users use in
10 their computers.
11 Q When you say a number of computer users,
12 does that relate to personal computers? Business
13 computers?
14 A I haven't any idea.
15 Q When you say an open source system what
16 does that mean?
17 A To me it means free to anybody that
18 wants to use it.
19 Q Do you know whether or not Linux in 1999
20 was trying to create a system whereby DVDs could
21 be played on the Linux operating system?
22 MR. COOPER: It assumes facts not in
23 evidence. There is no Linux as an entity as we've
24 discussed in, I think, every one of the
25 depositions that we've been together in, and it
21
1 also asserts facts inconsistent with the record.
2 BY MR. GARBUS:
3 Q Go ahead, sir.
4 A The answer is I don't know.
5 MR. GARBUS: Can I hear the question again?
6 (The reporter read the record as
7 requested.)
8 BY MR. GARBUS:
9 Q Do you know whether or not Linux users
10 were trying to create on operating system that
11 played DVDs on that operating system?
12 MR. COOPER: Ambiguous.
13 THE WITNESS: The answer is I don't know.
14 BY MR. GARBUS:
15 Q Do you know whether or not the person
16 who first published the DECSS code was a Linux
17 user?
18 A I have no idea.
19 Q Do you know the purpose for which DECSS
20 was originally created?
21 A All I know is it's a violation of the
22 law.
23 Q Is it your understanding that it's a
24 violation of the law if the DECSS was created to
25 create an operating system or to be part of an
22
1 operating system for Linux users?
2 MR. COOPER: Assuming facts not in evidence,
3 it's an incomplete hypothetical.
4 BY MR. GARBUS:
5 Q Go ahead.
6 A It doesn't make any difference. The
7 DMCA is quite clear, great clarity that anyone who
8 circumvents an encryption is violating the law.
9 Q If anyone is using DECSS which they get
10 from another source; namely, Linux users to play
11 DVDs, it's your opinion that that's against the
12 law?
13 MR. COOPER: Same objections. Also calls for
14 a legal conclusion.
15 THE WITNESS: I believe it is very much
16 against the law.
17 BY MR. GARBUS:
18 Q So that if any system plays a DVD
19 without a license from DVD CCA, that in your
20 estimation is against the law?
21 MR. COOPER: It's ambiguous. It's an
22 incomplete hypothetical. Assumes facts not in
23 evidence, and it calls for a legal conclusion.
24 BY MR. GARBUS:
25 Q Go ahead.
23
1 A I hate to sound like a broken record,
2 but I believe it's a violation of the law. The
3 law is very clear and very plain.
4 Q It is very clear -- let me give you --
5 let's assume I buy a DVD, pay a price on it. Then
6 I play it on a piece of hardware or a computer
7 software that doesn't have -- which company
8 doesn't have a license from DVD CCA. Is it your
9 view that that's against the law?
10 MR. COOPER: This witness is not here to
11 testify as a legal expert. Your questions ask for
12 him to draw legal conclusions on scant
13 information.
14 BY MR. GARBUS:
15 Q Go ahead, sir.
16 A I believe it's against the law.
17 Q So your understanding of the law then is
18 that the only people who can play DVDs are those
19 people who play it on licensed software or
20 hardware?
21 A All I do know is that no one can with
22 impunity circumvent an encrypted DVD. The law is
23 plain and clear and unambiguous.
24 Q If a Linux user takes DECSS which he did
25 not get through his own reverse engineering or
24
1 through any attempt of circumvention on his side
2 and uses that on a Linux system to play a DVD,
3 it's your view that that's against the law?
4 MR. COOPER: Incomplete hypothetical.
5 Assumes facts not in evidence, and it's calls for
6 a legal conclusion.
7 MR. GARBUS: Thank you.
8 MR. COOPER: Let's have the question read
9 back.
10 (The reporter read the record as
11 requested.)
12 THE WITNESS: Any time that you circumvent an
13 encryption you're violating the law.
14 BY MR. GARBUS:
15 Q Even if you're using it and you have not
16 done the reverse engineering and you have not done
17 the circumvention?
18 MR. COOPER: Assumes facts not in evidence.
19 I think it's internally inconsistent and
20 unintelligible.
21 THE WITNESS: The answer is, I go back again,
22 the law doesn't make any such exceptions. The law
23 is clear.
24 BY MR. GARBUS:
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21 BY MR. GARBUS:
22 Q Did you testify before congress on
23 whether or not the MPAA's position was Beta Max --
24 do you know what DIVX is, D-I-V-X?
25 A I've heard of it, but I'm not sure.
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9 Q Did you also testify before congress
10 that the Fair Use Exception was not cut out by the
11 DMCA?
12 A Yes. The concept of Fair Use is intact
13 in the DMCA.
14 Q Tell he how that is.
15 MR. COOPER: Calls for a legal conclusion.
16 THE WITNESS: Well, I don't know except that
17 the concept is intact.
18 BY MR. GARBUS:
19 Q What is the concept of Fair Use, as you
20 understand it?
21 A It means that libraries or
22 schoolteachers can play movies in their classrooms
23 for educational purposes.
24 Q Do they have to get permission from the
25 DVD CCA?
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1 MR. COOPER: Calls for a legal conclusion,
2 it's misleading. Assumes facts not in evidence.
3 Did you intend to ask about the DVD CCA?
4 MR. GARBUS: Pardon?
5 MR. COOPER: You intended to ask that
6 question with regard to permission for DVD CCA?
7 MR. GARBUS: From whoever you have to get
8 permission for it.
9 THE WITNESS: What's the question?
10 MR. GARBUS: Can you read the question back?
11 (The reporter read the record as
12 requested.)
13 MR. COOPER: It's misleading. Ambiguous.
14 Assumes facts not in evidence.
15 THE WITNESS: You can go to a Block Bluster
16 store and get a DVD player in your classroom.
17 Libraries have DVD which say check out to people
18 who want to look at them.
19 BY MR. GARBUS:
20 Q Can you fast forward on a DVD?
21 A Yeah, I think you can.
22 Q If you have, let's say, advertisements
23 in the beginning, can you fast forward past those
24 advertisements so that you can go straight to the
25 movie?
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1 A I'm not aware of DVDs that have
2 advertisements. What do was mean advertisement?
3 Q Advertisements for other movies.
4 A Yeah, you can fast forward through that.
5 Q Can you edit the DVD so as to take off
6 information to put it on a VCR?
7 A That means you have to decrypt mand
8 that's against the law.
9 Q So, in other words, there's no way of
10 making anything off: a second; a tenth of a second
11 from the DVD without it being against the law?
12 MR. COOPER: Calls for a legal conclusion.
13 BY MR. GARBUS:
14 Q Go ahead, sir.
15 A I'm just saying to you as simply as I
16 can assert it that any time that you decrypt or
17 try to decrypt a DVD the DMCA is very clear about
18 that, that you can't do it. It's against the law.
19 Q If you use DECSS to defeat regional
20 coding is that also against the law?
21 MR. COOPER: Assumes facts not in evidence.
22 It's an incomplete hypothetical.
23 THE WITNESS: The answer is, any time that
24 you circumvent an encryption for whatever reason
25 you are breaking the law.
30
1 BY MR. GARBUS:
2 Q Is regional coding encryption?
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13 BY MR. GARBUS:
14 Q Now, you're the one who testified before
15 congress, did you not, on the DMCA?
16 A I was one of those, yes.
17 Q You testified on the effect of Beta Max
18 on the DMCA and how it should be interpreted?
19 A Beta Max?
20 Q Yeah.
21 A Are you referring to the case 17 -- 19
22 years ago?
23 Q Yes. Haven't you in your testimony
24 before congress referred to the Sony against Beta
25 Max case?
42
1 A I may have. I'm not aware of it though.
2 That's in the Mesozoic era. That's almost 20
3 years ago.
4 Q Did you testify within the last five
5 years on Beta Max before compress when they were
6 considering the DMC?
7 MR. COOPER: Ambiguous.
8 THE WITNESS: I don't recall at all
9 testifying about Beta Max?
10 BY MR. GARBUS:
11 Q Do you recall issuing any statements
12 about Beta Max?
13 MR. COOPER: Ambiguous.
14 THE WITNESS: In the last five years?
15 BY MR. GARBUS:
16 Q Yeah.
17 A I'm not aware.
18 Q Now, Mr. Cooper described you as a lay
19 witness. What do you understand that term to
20 mean?
21 A I am not a lawyer.
22 Q So, in other words, a lay witness is
23 anyone other than a lawyer?
24 MR. COOPER: You're asking him to draw a
25 legal conclusion or to speculate about what I
43
1 meant by the term?
2 MR. GARBUS: You have called him a lay
3 witness. This is the man who's the head of the
4 MPAA, who for 34 years has been the head of the
5 MPAA, who has testified endless times before
6 various groups about his legal interpretation of
7 the DMCA. And you don't permit him to answer
8 questions about the DMCA.
9 Do you find that surprising?
10 MR. COOPER: I tell you what, if you want to
11 spend the time in this deposition arguing about
12 issues I'll be glad to. Let me say that I will
13 describe my meaning in my statements.
14 Why don't you ask the witness procipient
15 testimony on issues that he is here to answer on?
16 MR. GARBUS: Let's mark as exhibits first the
17 October 28, 1998 statement by Jack Valenti to the
18 Subcommittee on Telecommunications, Trade and
19 Consumer Protection, Committee on Commerce, U.S.
20 House of Representatives. We will mark as exhibit
21 two -- and I'll give you copies of this -- a
22 letter from Mr. Valenti to a Ms. Terry Tang dated
23 June 30th, 1998. And enclosed in that letter is a
24 document entitled chronology of WIPO treaty and
25 implement legislation. Also enclosed is a letter,
44
1 letter dated March 31, 2000 from Mr. Valenti to
2 David Carson, a lawyer at the general counsel of
3 an organization named in the letter.
4 And then we'll mark as exhibit four a
5 document to which Mr. Valenti is a signatory --
6 pardon me -- to which the Motion Picture
7 Association of America is a signatory as of March
8 30, 2000, when Mr. Valenti was the head of that
9 organization.
10 MR. COOPER: I haven't yet seen the
11 documents. So I can't speak to the
12 characterizations of counsel, but I will note for
13 the record that I believe he misspoke with respect
14 to the third document. I think he said something
15 about it being enclosed.
16 I believe what was intended was that the
17 third referenced document was to be marked as
18 exhibit three rather than the inference that it
19 was enclosed with exhibit two.
20 MR. GARBUS: I'll let the record speak for
21 itself.
22 VIDEOGRAPHER: Off the record. The time is
23 9:32:03.
24 (Valenti Exhibits 23-26 identified.)
25 (Recess.)
45
1 VIDEOGRAPHER: We're back on the record. The
2 time is 9:40.
3 BY MR. GARBUS:
4 Q Mr. Valenti, directing your attention to
5 exhibit number 24.
6 MR. COOPER: For the record -- I don't mean
7 to interrupt you, but I think the renumbering of
8 these documents from what you put on the record
9 occurred off the record. So you might want to
10 just note that they've been renumbered in
11 agreement between counsel.
12 MR. GARBUS: They have now been renumbered so
13 as to be consistent with the previous depositions.
14 So 23, 24, 25 and 26, rather than one, two, three
15 and four, but I'll identify each document when I
16 refer to it.
17 BY MR. GARBUS:
18 Q With respect to exhibit 24, which is a
19 letter to Ms. Tang at the New York Times, do you
20 know who Mr. Adaway is?
21 A Yes.
22 Q Who is Mr. Adaway?
23 A Senior vice president and Washington
24 general counsel of the MPAA.
25 Q I direct your attention -- and the
46
1 letter starts off with, "Jack Valenti asked me to
2 send you the attached material relating to
3 implementation of the WIPO treaties." Is that
4 right?
5 A That's what it says here, yes.
6 Q Do you recognize the document that is
7 attached?
8 A I never really saw it. I just -- I
9 asked Mr. Adaway to send this lady information
10 about the WIPO treaties.
11 Q The information that you sent, that's
12 the position of the MPAA. Is that right?
13 MR. COOPER: Lacks foundation. Calls for
14 speculation.
15 THE WITNESS: Well, I haven't read this. So
16 I don't know.
17 BY MR. GARBUS:
18 Q Direct your attention to page 7216 if
19 you see in the low right-hand corner, section 11.
20 This is a letter to -- is that the
21 position of the MPAA? And isn't that the position
22 you've testified in congress was the position of
23 the MPAA?
24 MR. COOPER: Lacks foundation. Calls for
25 speculation. Take a moment to read it, please.
47
1 THE WITNESS: Well, this is a legal paragraph
2 that Mr. Adaway has sent to this lady which
3 summarizes the 1984 Supreme Court decision, and
4 it's not MPA policy. I guess that's Supreme Court
5 policy.
6 BY MR. GARBUS:
7 Q It says, "Will section 1201 overrule the
8 Supreme Court Beta Max decision." And then it
9 says, "No." And then it goes on.
10 Wasn't that the position you took and
11 testified before congress?
12 MR. COOPER: You're asking whether he said
13 what's contained in those two sentences?
14 MR. GARBUS: Yes, in substance.
15 THE WITNESS: I don't know.
16 BY MR. GARBUS:
17 Q Do you know what you testified in
18 congress relative to the effect of Beta Max on the
19 DMCA?
20 MR. COOPER: Assumes facts not in evidence.
21 THE WITNESS: I have written about a million
22 words.
23 BY MR. GARBUS:
24 Q Does this refresh your --
25 A It is impossible to remember specific
48
1 paragraphs out of a million words, testimony and
2 speeches. So the answer is, I don't know.
3 Q Does it refresh your recollection in any
4 way as to what the MPA's stated position was
5 before the DM -- before the congress when it
6 testified about the DMCA?
7 MR. COOPER: You're asking whether this
8 refreshes his recollection on that?
9 MR. GARBUS: Right.
10 THE WITNESS: I don't know whether this
11 section 11 here was part of my testimony before
12 the DM.
13 BY MR. GARBUS:
14 Q I didn't ask you that. I said, does
15 this refresh your recollection as to what the
16 MPAA's position was before the congress when it
17 gave information concerning the effect --
18 A I don't want.
19 MR. COOPER: Please let him finish, and then
20 give me an opportunity to object.
21 THE WITNESS: All right. Fine.
22 BY MR. GARBUS:
23 Q -- the Beta Max decision and its
24 interrelationship with section 1201?
25 MR. COOPER: You no longer mean to be
49
1 referring to his testimony. You're talking about
2 any positions asserted by the MPA?
3 MR. GARBUS: Yes.
4 MR. COOPER: Lacks foundation.
5 BY MR. GARBUS:
6 Q Go ahead, sir.
7 A What is it you want to know?
8 Q Do you know what the MPAA's position was
9 before congress with respect to the viability of
10 the Beta Max case and the relationship between the
11 Beta Max case and section 1201?
12 A Well, the Beta Max case said that you
13 could time shift for over-the-air free television.
14 That's all it said.
15 What else do you want to know?
16 Q Now try and answer my question.
17 MR. GARBUS: Can you repeat the question to
18 the witness?
19 (The reporter read the record as
20 requested.)
21 MR. COOPER: He has answered your question.
22 BY MR. GARBUS:
23 Q Go ahead, sir.
24 MR. COOPER: What's the question?
25 THE WITNESS: Yeah, what the question?
50
1 MR. COOPER: Read the question.
2 (The reporter read the record as
3 requested.)
4 MR. COOPER: He's answered your question. Do
5 you have a follow-up?
6 MR. GARBUS: Will you allow the witness to
7 answer?
8 MR. COOPER: Would you read back his answer,
9 please?
10 (The reporter read the record as
11 requested.)
12 BY MR. GARBUS:
13 Q I asked you whether or not -- and I
14 direct your attention to page -- to paragraph
15 three of section 11, which says, quote, "The Beta
16 Max case would remain good law even after the
17 enactment of section 1201."
18 Wasn't that the MPA's position before
19 congress?
20 MR. COOPER: Are you asking whether this
21 sentence refreshes his recollection?
22 MR. GARBUS: As to what the MPAA's position
23 was.
24 THE WITNESS: What the Beta Max case said,
25 according to my lawyers, was that time shifting
51
1 for over-the-air free television was permissible
2 and said nothing about cable. It said nothing
3 about encrypted material.
4 And so what Mr. Adaway is saying here,
5 it seems to me, is that section 1201 does that
6 override the Beta Max case.
7 BY MR. GARBUS:
8 Q When he is saying the Beta Max case
9 would remain good law even after the enactment of
10 section 1201, you have testified substantively and
11 substantially to that effect to congress. Isn't
12 that correct?
13 MR. COOPER: Complex. Compound.
14 THE WITNESS: All I'm saying, counselor, is
15 that, relying on my lawyer's interpretation, that
16 the Beta Max case was narrowly constructed. It
17 only dealt with over-the-air free television time
18 shifting. That's all you could copy, period.
19 BY MR. GARBUS:
20 Q So you're saying that the entire Beta
21 Max case, as I understand it, as you understand it
22 was good law even after the enactment of section
23 1201?
24 MR. COOPER: He's testified to is
25 understanding. You're now trying to characterize
52
1 it and extend it.
2 BY MR. GARBUS:
3 Q Go ahead, sir.
4 MR. COOPER: Calls or a legal conclusion.
5 THE WITNESS: I think what good law means, if
6 the law is intact, and to the extent that you can
7 time shift for free over-the-air television
8 stations, period.
9 BY MR. GARBUS:
10 Q Did the Beta Max case deal with the
11 question of infringement?
12 MR. COOPER: Lacks foundation.
13 BY MR. GARBUS:
14 Q To your knowledge?
15 A I don't recall. I don't know.
16 Q Did the Beta Max deal with the question
17 of copying material off TV and then making
18 duplicate copies of the copies?
19 MR. COOPER: Lacks foundation.
20 THE WITNESS: I don't recall.
21 BY MR. GARBUS:
22 Q Do you know if the Beta Max case talked
23 about the number of infringing copies you can make
24 from material bought in the store or material
25 taken off TVs?
53
1 A I don't recall.
2 MR. COOPER: Lacks foundation.
3 BY MR. GARBUS:
4 Q Do you know anything about the Beta Max
5 case here with respect to infringement?
6 MR. COOPER: Other than what he's already
7 testified to?
8 MR. GARBUS: Right.
9 THE WITNESS: I think I've testified what I
10 believe is a summary of the Beta Max case.
11 BY MR. GARBUS:
12 Q Do you know the Sega case?
13 A The what?
14 Q S-E-G-A case.
15 MR. COOPER: Ambiguous.
16 BY MR. GARBUS:
17 Q Sega against Accolade?
18 A No, I don't know it.
19 Q Do you know any of the cases that follow
20 from the Beta Max case?
21 A No.
22 Q To your knowledge, did Mr. Adaway -- by
23 the way, did Mr. Adaway also testify before
24 congress?
25 A From time to time.
54
1 Q Who was the -- he is the Washington
2 general counsel for the MPAA?
3 A Yes.
4 Q Is he the senior attorney?
5 A In Washington.
6 Q Is there a senior attorney?
7 MR. COOPER: I just want to make sure -- it
8 is at times difficult to tell whether Mr. Garbus
9 has finished his question. So if you'll pause for
10 a moment it will give ne an opportunity to
11 interject objections.
12 THE WITNESS: I'm sorry.
13 BY MR. GARBUS:
14 Q Do you recall ever having testified
15 before congress that the Fair Use Exception that
16 existed before 1201 is the same as the Fair Use
17 Exception that exists now?
18 A I don't understand the question. I'm
19 sorry.
20 Q Do you understand that the -- did you
21 testify before the congress that the DMCA does not
22 change Fair Use?
23 A I think I did.
24 Q The position of the MPAA is that the
25 DMCA does not change Fair Use?
55
1 A The Doctrine of Fair Use is still
2 intact.
3 Q In every way?
4 A Well, I don't -- counselor, I don't know
5 what every way means.
6 Q Is there any way that you can think of
7 that Fair Use is less intact after the DMCA than
8 it was before?
9 MR. COOPER: Calls for a legal conclusion.
10 THE WITNESS: I don't know.
11 BY MR. GARBUS:
12 Q Has Mr. Adaway testified -- by the way,
13 before Mr. Adaway testifies do you and he ever
14 discuss what the subject of his testimony will be?
15 A I don't recall.
16 Q Have you ever seen any copies of his
17 testimony?
18 A I may have. I may not have.
19 Q Now, were you present at any discussions
20 within the MPAA concerning the effect of the DMCA
21 on Fair Use?
22 MR. COOPER: Because of the possibility that
23 such discussions might involve the attorney-client
24 privilege I would ask you to answer yes or no to
25 the question.
56
1 THE WITNESS: I don't know.
2 BY MR. GARBUS:
3 Q Did you have any discussion with the
4 heads of any of the studios or anybody at the
5 studios, the plaintiffs in this case, concerning
6 Fair Use and the effect of the DMCA on Fair Use?
7 A I'm not aware of any.
8 Q Is it fair to say that the MPA was one
9 of the larger lobbying groups in the DMCA issue?
10 A What do you mean by larger? Do you mean
11 numbers of people?
12 Q Dollars. Numbers of people.
13 A No. I would say we are not.
14 Q Who are the others?
15 A I have no idea, but we don't have a
16 large staff.
17 Q How many people do you have here in
18 Washington?
19 A I have one person that handles congress,
20 one person, and I have Mr. Adaway.
21 Q How much money does the MPA spend each
22 year on lobbying?
23 A I don't know.
24 Q What is the total MPA budget?
25 A This year approximately $25 million
57
1 worldwide.
2 Q Do you know whether there are DECSS
3 sites overseas?
4 A I don't know.
5 Q Do you know if the MPAA has tried to
6 stop these DECS sites that are overseas?
7 MR. COOPER: Would you read back the
8 question, please?
9 (The reporter read the record as
10 requested.)
11 THE WITNESS: I don't know.
12 BY MR. GARBUS:
13 Q Do you know if the MPA has tried to
14 determine whether there is any hardware presently
15 playing DVDs as a result of DECSS?
16 MR. COOPER: Ambiguous.
17 THE WITNESS: I don't know.
18 BY MR. GARBUS:
19 Q If you play a DVD on your CSS equipped
20 player, in other words, an appropriate player, and
21 you use something called Speed Ripper -- have you
22 ever heard of Speed Ripper?
23 A No.
24 Q Have you ever heard of something called
25 DOD?
58
1 A No.
2 Q Do you know the names of any devices
3 that can capture the digital signal without
4 de-encryption?
5 MR. COOPER: Ambiguous.
6 THE WITNESS: I don't know.
7 BY MR. GARBUS:
8 Q Has anyone discussed the Steam Box case
9 with you?
10 MR. COOPER: Ambiguous.
11 THE WITNESS: Not to my knowledge.
12 BY MR. GARBUS:
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14 Q Do you know who Mr. Schumann is?
15 A Schumann?
16 Q Yeah.
17 A What's his first name?
18 Q Robert?
19 A Great composer. I love his music.
20 Q Not this man's. He's an expert witness
21 who has been retained by the MPAA and Proskauer.
22 Do you know him at all?
23 A I do not know him.
24 Q Have you ever seen any of his reports?
25 A No.
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1 Q Do you know whether he prepared a
2 report?
3 A I don't know.
4 Q Have you had any conversations with any
5 of the people at any of the eight major studios
6 about any aspect of this litigation?
7 A About Mr. Schumann?
8 Q About this litigation. Not
9 Mr. Schumann. About any aspect of this
10 litigation?
11 A I don't recall.
12 Q Have you had any conversations with
13 anyone at the DVD CCA about Mr. Schumann?
14 A As I said, I don't even know what that
15 is.
16 Q How about Mr. Jacobson? Do you know
17 him?
18 A Jacobson? Who is Mr. Jacobson? You
19 mean my Mr. Jacobson?
20 Q Yes.
21 A Oh, sure. I know him, of course.
22 Q To your knowledge, has Mr. Jacobson ever
23 told you that he had ever seen a DVD that had been
24 de-encrypted by DECSS?
25 MR. COOPER: Would you read back the
67
1 question, please?
2 (The reporter read the record as
3 requested.)
4 MR. COOPER: It's possible that the answer to
5 that question could intrude on the attorney-client
6 privilege. So you should answer the question yes
7 or no.
8 THE WITNESS: I don't remember.
9 BY MR. GARBUS:
10 Q You said any use of DVD that involves
11 coping is illegal. Is that right?
12 A I think what I said was, any time you
13 circumvent encryption according to the DMCA you're
14 violating the law. That's what I said.
15 Q You're also violating the law, are you
16 not, if you copy DVDs without de-encrypting?
17 MR. COOPER: Calls for a legal conclusion.
18 It's an incomplete hypothetical.
19 BY MR. GARBUS:
20 Q Does you know how -- let's use the term
21 Asian pirates -- how they copy DVD?
22 A What kind of pirates?
23 MR. COOPER: Ambiguous.
24 BY MR. GARBUS:
25 Q Let's say Asian pirates or Hong Kong
68
1 pirates. Do you know how most DVD -- pirated DVDs
2 are made?
3 A No.
4 MR. COOPER: Compound.
5 BY MR. GARBUS:
6 Q Do you know that there are ways to copy
7 DVDs by pirates without breaking the de-encryption
8 code?
9 MR. COOPER: Assume facts not in evidence.
10 THE WITNESS: I'm not aware of such.
11 BY MR. GARBUS:
12 Q Do you know what the major source of
13 pirated copies come from -- from which process
14 they come?
15 MR. COOPER: Copies of?
16 MR. GARBUS: DVDs.
17 THE WITNESS: I don't remember.
18 BY MR. GARBUS:
19 Q Now, with respect to copying movies,
20 you've spoken publicly about the use of camcorders
21 to copy movies. Do you recall that?
22 A In analog form, yes.
23 Q You have indicated in your public
24 statement that that's a major concern of the MPAA.
25 Is that right?
69
1 A It is of concern, yes.
2 Q Do you know how many copies of films or
3 how many films have been copied through the use of
4 camcorders?
5 A A lot.
6 Q Do you know if any of those films have
7 been shown on the internet?
8 A I don't know.
9 Q When you say a lot, what is the basis
10 for that judgment?
11 A The answer is that it's a large number,
12 but I don't know the precise number.
13
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19 A I don't know.
20 VIDEOGRAPHER: Off the record. The time is
21 10:07 and 42 seconds.
22 (Recess.)
23 VIDEOGRAPHER: We're back on the record. The
24 time is 10:18 and 17 seconds.
25 (Valenti Exhibit 27 identified.)
72
1 BY MR. GARBUS:
2 Q Mr. Valenti, I show you a document
3 marked exhibit 27. It says "Blind copies to Fritz
4 Adaway," who you've previously and identified.
5 Simon Barski, who I know to be a lawyer at the MPA
6 and Rich Taylor. Who is he?
7 A He is head of our public affairs
8 department.
9 Q Brad Hunt?
10 A Brad Hunt is chief technology officer.
11 Q What is his position?
12 A I beg your pardon?
13 Q What and what does he do?
14 A He's the chief technology officer.
15 Q What does he do?
16 A He deals in technology.
17 Q In other words, does he, for example,
18 take DVDs and try and see the quality of a film
19 that has been de-encrypted?
20 MR. COOPER: Lacks foundation.
21 THE WITNESS: I'm not aware of that, no.
22 BY MR. GARBUS:
23 Q Have you ever seen -- do you know
24 anything about the quality of a film -- a DIVX
25 film?
73
1 A No.
2 Q Do you know anything about the quality
3 of a film that has been de-encrypted through
4 DECSS?
5 A No.
6 Q Has anyone ever shown you a film that
7 they have de-encrypted through DECSS?
8 MR. COOPER: Asked and answered.
9 THE WITNESS: No.
10 BY MR. GARBUS:
11 Q Do you know if anyone at the MPAA has
12 made any tests concerning how long it takes to
13 download a DVD and de-encrypt it through DECSS?
14 A Not that I'm aware of.
15 Q Have you seen any newspaper articles
16 that indicate how long it takes to --
17 A I may have, but I don't remember.
18 Q Now directing your attention to exhibit
19 27. That letter is your letter, and that is your
20 signature at the end?
21 A It is.
22 Q You say, with respect to the third
23 paragraph, "The movie industry doesn't seek to
24 eliminate the Fair Use Doctrine. Is that correct?
25 A That's correct.
74
1 MR. COOPER: You're asking him whether that's
2 what the document says, right?
3 MR. GARBUS: No. Whether that's correct.
4 BY MR. GARBUS:
5 Q Whether what you said is correct?
6 A Yes.
7 Q You say, "That doctrine was constructed
8 to make it easier for research, scholarship,
9 commentary and similar uses which do not harm the
10 economic interests of copywrite owners."
11 Is that right?
12 MR. COOPER: The document so states. Are you
13 asking whether he is recalling --
14 MR. GARBUS: Whether that's his view.
15 BY MR. GARBUS:
16 Q Is that your view?
17 MR. COOPER: Today?
18 MR. GARBUS: Yeah, today.
19 THE WITNESS: Yes.
20 BY MR. GARBUS:
21 Q You haven't changed your view?
22 A No.
23 Q In the last paragraph you talk about the
24 users of the Linux system?
25 A Yes.
75
1 Q Pardon me? Excuse me?
2 A I said yes.
3 Q What that paragraph indicates is those
4 Linux users who have license can appropriately
5 play DVDs and that's not illegal. Is that right?
6 MR. COOPER: The document speaks for itself.
7 Are you asking him to agree with your
8 characterization of the paragraph?
9 MR. GARBUS: Surely.
10 THE WITNESS: Yeah. It says it what it says.
11 BY MR. GARBUS:
12 Q Yes. And that's what I said, right?
13 MR. COOPER: You're asking for him now to
14 adopt your characterization of it.
15 BY MR. GARBUS:
16 Q In the third paragraph -- which is a
17 letter you wrote three months ago?
18 A Third paragraph, yes.
19 Q -- you talk about the Beta Max case?
20 A Yes.
21 Q In the last paragraph you talk about
22 Professor Lessig.
23 A Yes.
24 Q Do you remember the example he used?
25 MR. COOPER: Could I ask, Mr. Valenti m,that
76
1 you slow down. I'm not sure what counsel means by
2 third paragraph, last paragraph. I believe he's
3 referring to the, when saying that, the first
4 paragraph on page two. I think that's what he
5 meant by the third paragraph.
6 MR. GARBUS: It's called third, yes.
7 MR. COOPER: It's ambiguous.
8 MR. GARBUS: Mr. Valentin and I understood.
9 MR. COOPER: Well, you two may have
10 understood each other, but the purpose of the
11 deposition is to create a record so that somebody
12 else can understand it, and that's why I would
13 like the witness to slow down and allow me to
14 interject my objections.
15 Confidential
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17 BY MR. GARBUS:
18 Q In the last paragraph on page two --
19 A Paragraph what? Professor Lessig seems
20 to find?
21 MR. GARBUS: Is that agreeable with you,
22 Mr. Cooper, if I call that the last paragraph.
23 MR. COOPER: It is.
24 BY MR. GARBUS:
25 Q Do you recall the example that Professor
77
1 Lessig used in the article?
2 A I don't remember.
3 Q Well, let me ask. Do you recall the
4 article itself, Mrs. Trusso's article?
5 A The essence of the article is Professor
6 Lessig believes that if it's on the internet it's
7 free for the taking. I think that's the general
8 belief he has.
9 Q Can you tell us who Professor Lessig is?
10 A He was a law professor at Harvard. I
11 think he's now at Stamford.
12 Q Do you recall him saying that as a
13 teacher he had the right or he understood he had
14 the right to take a piece of a DVD to use it for a
15 lecture in class? Do you recall him saying that
16 in the article?
17 A I don't recall it, no.
18 Q Do you agree that a person teaching in a
19 classroom such as professor Lessig can take three,
20 four, five minutes of a DVD and play it to his
21 class?
22 MR. COOPER: Assumes facts not in evidence.
23 It's an incomplete hypothetical.
24 THE WITNESS: If you mean can he de-encrypt
25 it the answer is no, but he can get it a DVD and
78
1 fast forward to the three or five minutes he wants
2 to play.
3 BY MR. GARBUS:
4 Q But he can't take it and put it off on
5 something other than the original DVD?
6 MR. COOPER: Calls for a legal conclusion.
7 BY MR. GARBUS:
8 Q Is that right, sir?
9 A I go back to my principle: You cannot
10 circumvent an encryption for whatever reason.
11 Q So that if a librarian, for example,
12 wants to use two to three minutes for a lecture,
13 is she required to get a license from the DVD CCA
14 or the MPAA to use those two or three minutes?
15 MR. COOPER: Assumes facts not in evidence.
16 Calls for a legal conclusion and lacks foundation.
17 I just don't understand how we can
18 continue to spend the deposition asking the
19 witness increasingly more convoluted legal
20 scenarios. He is not here to testify as a legal
21 expert.
22 BY MR. GARBUS:
23 Q Go ahead, sir.
24 A The answer is, if there's a legal
25 conclusion to be drawn I don't know.
79
1 Q If a librarian or an academic wants to
2 just use two or three minutes on some other thing
3 other than a DVD that he bought originally, is
4 there anyway he can communicate with either the
5 DVD CCA or the MPAA so that arrangements for that
6 can be made?
7 MR. COOPER: Unintelligible. Assumes facts
8 not in evidence, and calls for speculation.
9 THE WITNESS: Counsel, I don't understand
10 what you mean.
11 BY MR. GARBUS:
12 Q If a teacher or a student -- let's
13 assume a student. A student wants to write a
14 paper on the holocaust and a student wants to use
15 two or three minutes from Schindler's List and she
16 can't take the entire DVD and find the place and
17 do that, but rather as part of her own video
18 presentation she wants to take two or three
19 minutes from Schindler's List. Is there any way
20 she can do that by contacting the DVD CCA or the
21 MPAA and getting permission to de-encrypt to use
22 those three minutes?
23 MR. COOPER: Ambiguous. It's compound. He's
24 testified a number of times that he doesn't know
25 what the DVD CCA is. So by importing that into
80
1 your question is making it compound. I think you
2 make it impossible for the witness to answer the
3 question.
4 THE WITNESS: I can't answer the question.
5 BY MR. GARBUS:
6 Q Let's restrict it to the MPAA.
7 A I can't answer the question.
8 Q Why not?
9 A Because I don't know what the answer is.
10 Q Do you understand the question?
11 A Huh?
12 Q Do you understand the question?
13 A Not really.
14 Q If a student wants to do a term paper,
15 let's say do a video presentation on the
16 holocaust -- do 20 minutes on the holocaust, and
17 wants to take two or three minutes from a DVD from
18 Schindler's List to put into that holocaust
19 presentation and she has to de-encrypt the DVD to
20 do that, is that illegal?
21 MR. COOPER: Asked and answered. It also
22 calls for legal conclusion. It's an incomplete
23 hypothetical.
24 BY MR. GARBUS:
25 Q Go ahead, sir.
81
1 A The student could do that by getting an
2 analog version of Schindler's List, because that's
3 not encrypted.
4 Q So that you can do that with analog
5 version. You can also do that, can you not, with
6 a VCR duplication of a movie?
7 MR. COOPER: Ambiguous. Calls for a legal
8 conclusion.
9 THE WITNESS: The answer is, I don't know.
10 You're getting me into some deep legal water here,
11 and I don't know the answer.
12 BY MR. GARBUS:
13 Q Let's assume if I rent a movie at Block
14 Buster -- if I wanted to rent Schindler's List at
15 Block Buster I could do that?
16 MR. COOPER: Ambiguous.
17 BY MR. GARBUS:
18 Q Is that right? In other words, the
19 student could do that: Take a little chunk of it
20 and then put it into her term paper?
21 MR. COOPER: Ambiguous. Incomplete
22 hypothetical. Calls for a legal conclusion.
23 THE WITNESS: I don't know.
24 BY MR. GARBUS:
25 Confidential
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7 Q In other words, do you understand then
8 that the ability to copy or take a piece of a DVD
9 is different than taking a piece of something
10 which is analog or taking a piece of, let's say, a
11 VCR?
12 MR. COOPER: Same objections.
13 BY MR. GARBUS:
14 Q Or videotape?
15 MR. COOPER: Same objections. It's compound.
16 It's incomplete hypothetical. Calls for a legal
17 conclusion.
18 BY MR. GARBUS:
19 Q Go ahead, sir.
20 A I don't have a legal conclusion to give
21 you.
22
23 Confidential
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4 BY MR. GARBUS:
5 Q If you take a VCR videotape, can you put
6 that on the internet?
7 MR. COOPER: Incomplete hypothetical. Calls
8 for legal conclusion, and it's ambiguous.
9 BY MR. GARBUS:
10 Q Do you know whether or not you can buy a
11 videotape of a movie and then put that on the
12 internet?
13 MR. COOPER: You're asking technologically
14 whether it's possible to do it?
15 BY MR. GARBUS:
16 Q Do you know whether the MPA has ever
17 checked into whether or not you can take a rented
18 movie and put that on the internet?
19 MR. COOPER: Ambiguous. You're asking
20 whether it's possible. Not whether it's legal.
21 THE WITNESS: I don't know.
22 BY MR. GARBUS:
23 Q I presume you don't know whether it's
24 possible or whether it's legal. Is that right?
25 A I don't know to both of them.
84
1 Q Do you know whether or not you can take
2 a video that you make, a duplicate, and then put
3 it on the internet?
4 MR. COOPER: It's incomplete hypothetical.
5 It's ambiguous. Calls for a legal conclusion.
6 THE WITNESS: I don't know.
7 BY MR. GARBUS:
8
9
Confidential
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11
12
13
14 BY MR. GARBUS:
15 Q You don't know whether it's possible or
16 whether or not it's legal. Is that right?
17 MR. COOPER: Same objections.
18 THE WITNESS: Don't know. I don't know
19 whether it's possible. I don't know whether it's
20 legal.
21 BY MR. GARBUS:
22 Q There's been testimony or there have
23 been affidavits in this case. If an academic
24 writes an article --
25 A If who?
85
1 Q An academic writes an article about
2 de-encryption and how DECSS was arrived at, is
3 such an article permissible or is that a violation
4 of the law?
5 MR. COOPER: Would you read back the
6 question, please?
7 (The reporter read the record as
8 requested.)
9 MR. COOPER: Calls for a legal conclusion. I
10 also remind the witness, as with all of these
11 questions, that if the only information you have
12 is through attorney-client communications not to
13 reveal the substance of those communications.
14 THE WITNESS: I don't know what the legality
15 is.
16 BY MR. GARBUS:
17 Q Do you know whether -- have you tried to
18 determine whether any academic articles are being
19 written now that have the full DECSS in it?
20 MR. COOPER: Lacks foundation if you're
21 asking about the MPAA.
22 THE WITNESS: I don't know.
23 BY MR. GARBUS:
24 Q Do you know if anybody at the MPAA knows
25 that?
86
1 A I don't know.
2 Q Have you tried to stop any academic web
3 sites that have DECSS on it?
4 MR. COOPER: By that you mean the MPAA?
5 MR. GARBUS: Yes.
6 THE WITNESS: I don't know.
7 BY MR. GARBUS:
8
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17 BY MR. GARBUS:
18 Q Has the MPA contacted any law professors
19 and told them that they cannot refer to any site
20 that links to DECSS?
21 MR. COOPER: Before you answer, I want to
22 make sure that it's clear that to the extent you
23 know an answer to a question like that through a
24 communication with counsel you should not provide
25 the substantive answer to the question.
91
1 THE WITNESS: I don't know.
2 BY MR. GARBUS:
3
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6
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10
11 BY MR. GARBUS:
12 Q If the student takes the DECSS code that
13 he's gotten in a classroom and gives it to someone
14 else who does not download DVD, is that illegal?
15 MR. COOPER: Ambiguous and calls for a legal
16 conclusion, and it's an incomplete hypothetical.
17 BY MR. GARBUS:
18 Q Go ahead sir.
19 A I don't know.
20 Q If the student gives it to someone else
21 who does make a DVD through the use of
22 de-encryption is that DVD made through the use of
23 de-encryption illegal?
24 MR. COOPER: Same objections.
25 THE WITNESS: I don't know.
92
1 BY MR. GARBUS:
2 Q When you take a film in a movie house
3 with a camcorder can you then take that film and
4 put it on the internet?
5 MR. COOPER: Would you read back the
6 question, please.
7 (The reporter read the record as
8 requested.)
9 MR. COOPER: Ambiguous. Unintelligible. Are
10 you asking whether it's physically possible to do
11 it?
12 MR. GARBUS: Yes.
13 MR. COOPER: Lacks foundation.
14 THE WITNESS: I don't know.
15 BY MR. GARBUS:
16 Q Do you know whether there have been any
17 instances where people have gone in with
18 camcorders and then taken the material from the
19 camcorder and translated it to the internet?
20 MR. COOPER: Ambiguous.
21 THE WITNESS: I don't know.
22 BY MR. GARBUS:
23 Q Do you know of instances where movies
24 have been shown on the internet where they have --
25 very shortly after the release of the film and
93
1 before DVDs or videos of that film have made
2 available to the public?
3 MR. COOPER: Would you read back the
4 question, please?
5 (The reporter read the record as
6 requested.)
7 MR. COOPER: Ambiguous.
8 BY MR. GARBUS:
9 Q Go ahead, sir.
10 A I don't know.
11 Q Has any attempt been made to stop the
12 New York Times from posting any linking sites, to
13 your knowledge?
14 MR. COOPER: Ambiguous.
15 THE WITNESS: I don't know.
16 BY MR. GARBUS:
17 Q Have any attempts been made against any
18 universities to stop them from posting DECSS?
19 MR. COOPER: Ambiguous.
20 THE WITNESS: I don't know.
21 BY MR. GARBUS:
22 Q Do you know anything about how this
23 particular defendant was the defendant arrived at
24 in the New York case?
25 MR. COOPER: Unintelligible. Asked and
94
1 answered to the extent you're asking whether this
2 witness knows how this defendant was selected.
3 BY MR. GARBUS:
4 Q Go ahead, sir?
5 A I don't know.
6 Q When for any first time did you learn
7 Mr. Goldstein's name?
8 MR. COOPER: Assumes facts not in evidence.
9 THE WITNESS: I think when you named him
10 today.
11 BY MR. GARBUS:
12 Q If you circumvent or de-encrypt to make
13 Fair Use, is that MPA policy as being against the
14 law?
15 MR. COOPER: Would you read back the
16 question, please?
17 (The reporter read the record as
18 requested.)
19 MR. COOPER: It's compound. Assumes facts
20 not in evidence. It's an incomplete hypothetical
21 and calls for a legal conclusion.
22 BY MR. GARBUS:
23 Q Go ahead. Sir.
24 A I can't draw a legal conclusion.
25 Q Does the MPA have a policy that says
95
1 that any time circumvention or encryption --
2 de-encryption is used that that is not Fair Use?
3 MR. COOPER: Ambiguous. Calls for a legal
4 conclusion.
5 THE WITNESS: I can't draw a legal
6 conclusion.
7 BY MR. GARBUS:
8 Q You don't know the answer to that. So
9 you don't know whether or not there are some
10 proper and appropriate uses of circumvention and
11 encryption?
12 MR. COOPER: Ambiguous. Calls for a legal
13 conclusion.
14 BY MR. GARBUS:
15 Q Go ahead, sir.
16 A I can't draw a legal conclusion.
17 Q So you don't know the answer to that?
18 A No. As I said, I'm not a lawyer. I
19 can't misspeak it.
20 Q Did you testify before congress on the
21 scope of Fair Use?
22 MR. COOPER: Ambiguous.
23 THE WITNESS: I may have. I don't recall.
24 BY MR. GARBUS:
25 Confidential
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22 BY MR. GARBUS:
23 Q Does the MPA -- by the way, let me show
24 you the letter previously marked as exhibit 25, to
25 which you're a signatory.
97
1 MR. COOPER: Which one is that?
2 THE WITNESS: Is that David O. Carson?
3 MR. GARBUS: Right.
4 MR. COOPER: I think you said you were going
5 to identify them for the record as you referred to
6 them.
7 MR. GARBUS: It's the March 31, 2000 letter
8 by you to David O. Carson -- by you and other
9 people. You are signatory.
10 MR. COOPER: I'll note for the record,
11 there's no signature on the copy that I have.
12 MR. GARBUS: This is a document that was
13 turned over to the by the MPAA. You would have to
14 ask the MPAA if there is any more information.
15 THE WITNESS: I don't understand how this --
16 I see. This is not a MPAA document. This is a
17 document of all these different companies.
18 MR. COOPER: If he has any questions about it
19 he can ask you.
20 BY MR. GARBUS:
21 Q I direct your attention to page two, the
22 sixth line.
23 A While the associations?
24 Q Yes. Tell me what the disagreements
25 are.
98
1 MR. COOPER: You talking about the
2 disagreements referred to in the first cause?
3 MR. GARBUS: Yes. About Fair Use issues and
4 the proper scope of exceptions to the anti
5 circumvention provisions, two separate issues.
6 THE WITNESS: I don't know.
7 BY MR. GARBUS:
8 Q Do you know what the MPAA's position is
9 with respect to the proper scope of exceptions to
10 the anti circumvention provision?
11 MR. COOPER: Read the question, please.
12 (The reporter read the record as
13 requested.)
14 MR. COOPER: Assumes facts not in evidence.
15 THE WITNESS: I don't know.
16 BY MR. GARBUS:
17 Q You said you never heard -- go to the
18 front of the page.
19 A I never heard what?
20 Q Let's go to the front of the document.
21 MR. COOPER: He's changing his question.
22 THE WITNESS: I'm sorry. Okay.
23 BY MR. GARBUS:
24 Q Have you ever heard -- you say you never
25 heard of the DVD CCA. Is that right?
99
1 MR. COOPER: His testimony has been, in your
2 frequent questions on the subject, that he had not
3 heard of it.
4 BY MR. GARBUS:
5 Q You never heard of John Hoy, who's the
6 heads of the --
7 A John who?
8 Q Hoy, H-O-Y?
9 A No.
10 Q Take a look at page two of the letter.
11 A What line?
12 Q The bottom left. Is the DVD CCA a
13 signatory to the same letter to which you're a
14 signatory?
15 MR. COOPER: The document reflects the DVD
16 Copy Control Association.
17 BY MR. GARBUS:
18 Q Do you know who they are?
19 A I've never met Mr. Hoy, to my knowledge.
20 Q You never heard of Mr. Hoy's name until
21 I mentioned it today?
22 A No.
23 Q Have you ever signed to your knowledge
24 any other joint documents with Mr. Hoy?
25 MR. COOPER: Assumes facts not in evidence.
100
1 THE WITNESS: I don't recall.
2 BY MR. GARBUS:
3 Q To your knowledge does the MPAA have any
4 ongoing relationship with the DVD CCA other than
5 to sign joint letters?
6 MR. COOPER: Assuming facts not in evidence.
7 THE WITNESS: I don't know.
8 BY MR. GARBUS:
9 Q Do you know if there was a meeting in
10 December between representatives of the MPAA and
11 the DVD CCA, in December of 1999 in California?
12 A No, I don't recall such a meeting.
13 Q Did you -- have you looked at any of the
14 depositions in this case?
15 A No.
16 Q Have you spoken to Mr. Jacobson before
17 you came to this deposition?
18 A No.
19 Q What documents did you read prior to
20 coming into this room to refresh your
21 recollection?
22 A The Documents supplied me by my lawyers.
23 Q Which document was that?
24 A They were -- the documents were my
25 testimony from five or six article -- five or six
101
1 testimonies that I offered before congress, public
2 documents.
3 Q Was that all?
4 A That's all.
5 MR. GARBUS: May I have copies of what he saw
6 this morning?
7 MR. COOPER: He didn't say he saw them this
8 morning. Let's just keep the record clear.
9 BY MR. GARBUS:
10 Q When did you say you saw them?
11 A I saw them last week I think.
12 MR. GARBUS: May I have copies of those
13 documents?
14 MR. COOPER: I'll take it under advisement.
15 THE WITNESS: I have no idea. I don't
16 remember what they were.
17 BY MR. GARBUS:
18 Q All you saw were five or six public
19 statement that you made?
20 A As I recall.
21 Q Did you see any internal documents of
22 the MPAA?
23 A I don't recall seeing any of those.
24 Q Let me direct your attention to exhibit
25 23, which is your statement of October 28, 1999.
102
1 A This is October 28, 1999. All right.
2 Q Right. And I direct your attention to
3 page two, last paragraph.
4 A Beginning with what?
5 Q When piracy flourishes. If you see in
6 the middle of the paragraph you say, "Piracy is a
7 $2 billion a year worldwide problem and growing?"
8 A Uh-huh.
9 Q Can you tell me if you have any
10 information about whether one nickel of that
11 piracy loss relates to DECSS?
12 A I don't know.
13 Q Has anyone at the MPAA to your knowledge
14 determined whether there's been a nickel loss due
15 to -- or any loss, a penny loss, due to DECSS?
16 MR. COOPER: Ambiguous. Calls for a legal
17 conclusion. And I admonish the witness not to
18 include any information in his answer that comes
19 from attorney-client communications.
20 THE WITNESS: I'm not aware.
21 BY MR. GARBUS:
22 Q Have you ever seen a any documents that
23 break down -- internal MPAA documents that break
24 down how these loss figures are arrived at? In
25 other words, the sources of the loss?
103
1 MR. COOPER: That's a reference to the loss
2 figures set forth in exhibit 23?
3 MR. GARBUS: Yes.
4 THE WITNESS: I don't recall.
5 BY MR. GARBUS:
6 Q Doesn't the MPAA make a breakdown? Is
7 it your testimony that you don't recall seeing it
8 or that the MPAA doesn't make breakdowns?
9 MR. COOPER: Is that the end of your
10 question?
11 MR. GARBUS: Yes.
12 MR. COOPER: You're asking whether the MPAA
13 has a practice of making breakdowns with respect
14 to this reference in this document?
15 MR. GARBUS: With respect to piracy losses,
16 generally.
17 MR. COOPER: Well, this is one of them but
18 also in general?
19 THE WITNESS: I don't recall the format of
20 this at all.
21 BY MR. GARBUS:
22 Q Have you ever seen, let's say, an
23 estimate of how much is lost to camcorders?
24 MR. COOPER: As distinct from other forms of
25 piracy?
104
1 MR. GARBUS: Right.
2 THE WITNESS: I don't recall.
3 BY MR. GARBUS:
4 Q Has anyone ever told you that they ever
5 learned -- do you know what a DVD burner is?
6 A I'm not sure.
7 Q Do you have any understanding of it at
8 all?
9 A I've heard the term, but I really don't
10 know what it means.
11 Q Do you know whether a DVD burner has
12 ever been used to make a pirated copy of a DVD?
13 MR. COOPER: Calls for speculation. You're
14 asking the witness now to use a term that he's not
15 familiar with. If you want to give him a
16 definition he might be able to answer the question
17 you intend.
18 MR. GARBUS: May I hear the objection?
19 (The reporter read the record as
20 requested.)
21 BY MR. GARBUS:
22 Q Do you agree with your counsel's
23 statement: That I would have to give you a
24 definition so that you could answer the question?
25 A Yeah. Why don't you give me a
105
1 definition?
2 MR. GARBUS: All right. Now, let's mark as
3 exhibit 28 a letter signed by you to Senator Diana
4 Finestein.
5 (Valenti Exhibit 28 identified.)
6 BY MR. GARBUS:
7 Q I direct your attention --
8 MR. COOPER: The witness doesn't have the
9 document yet.
10 BY MR. GARBUS:
11 Q By the way, do you have a computer at
12 home?
13 A Yes.
14 Q Do you use search engines?
15 A No.
16 Q Do you use linking?
17 MR. COOPER: Ambiguous.
18 THE WITNESS: No, I don't.
19 BY MR. GARBUS:
20 Q Do you go on line?
21 A E-mail.
22 Q Do you surf the net, as that expression
23 goes?
24 A No. I read.
25 Q So do I. Starting the sentence, "Just a
106
1 few key strokes," if you'll take a look at it, the
2 second paragraph.
3 A What page are you on?
4 Q I'm on the first page -- second page of
5 the April 14th letter.
6 A I got an April 15 page. Turn it over.
7 Q That's the backup. In other words,
8 April 15?
9 MR. COOPER: Let's take it slowly.
10 BY MR. GARBUS:
11 Q Page two of the Diana Finestein letter
12 written by you and others.
13 A What I want to do, counsel, if you will
14 allow me. It's Diane. If you say Diana I don't
15 think that she would like that very much.
16 MR. GARBUS: I'll say Diane.
17 MR. COOPER: I would like the witness to take
18 a few moments to read the document, all three
19 pages, so that he can familiarize himself with it.
20 VIDEOGRAPHER: Changing videotape two. The
21 time is 10:55:20 seconds.
22 (Recess.)
23 VIDEOGRAPHER: This is the head of videotape
24 two continuing the video deposition of Mr. Jack
25 Valenti. We're on the record. The time is 11:00
107
1 o'clock 47 seconds.
2 BY MR. GARBUS:
3 Q Going to the statement starring with,
4 "Just a few key strokes on an ordinary household
5 computer will enable people throughout --
6 A Excuse me. Where are you reading from?
7 I'm sorry.
8 Q The bottom, more or less, of the second
9 paragraph.
10 MR. COOPER: Of page two of the exhibit.
11 MR. GARBUS: Of the exhibit, but it's page
12 one.
13 THE WITNESS: Just a few key strokes?
14 MR. GARBUS: Yes.
15 THE WITNESS: All right. Go ahead.
16 BY MR. GARBUS:
17 Q "On an ordinary household computer will
18 enable people throughout the globe to make perfect
19 copies."
20 Have you ever done that?
21 A No.
22 Q When you say will make perfect copies,
23 have you ever seen perfect copies made on a
24 household computer of any materials?
25 MR. COOPER: Ambiguous. Overbroad.
108
1 THE WITNESS: Have I personally seen that?
2 BY MR. GARBUS:
3 Q Who gave you the information for that
4 sentence?
5 MR. COOPER: Assumes facts not in evidence.
6 THE WITNESS: I would assume it's somebody
7 who's technically aware in MPA, but I don't know
8 who.
9 BY MR. GARBUS:
10 Q The sentence goes on to say, "To make
11 perfect copies whether it is the first copy or the
12 thousandth of a copy."
13 Did you make -- again I presume you got
14 that information from someone who is more
15 technically aware. Is that right?
16 MR. COOPER: Assumes facts not in evidence,
17 you're asking the witness whether he recalls where
18 that information came from.
19 MR. GARBUS: Yes.
20 THE WITNESS: I'm sure it came from some
21 technical expert but I don't know who.
22 BY MR. GARBUS:
23 Q Do you know if that tech expert had ever
24 made any copies off a computer?
25 MR. COOPER: Calls for speculation. He
109
1 doesn't even know who it was.
2 BY MR. GARBUS:
3 Q Go ahead, sir.
4 A I don't know.
5 Q Do you know if he made ten copies? 1000
6 copies?
7 MR. COOPER: That's absurd.
8 THE WITNESS: I don't.
9 BY MR. GARBUS:
10 Q Did anybody tell you they had?
11 MR. COOPER: Had what?
12 THE WITNESS: Had what?
13 BY MR. GARBUS:
14 Q Made copies or perfect copies from
15 information off a computer?
16 A I'm not a -- I don't know.
17 Q Is it your recollection that it was
18 somebody within the MPAA who told you that?
19 MR. COOPER: You're now talking about the
20 phrase that you've been quoting from that's
21 contained in the letter?
22 MR. GARBUS: Yeah. Let's mark as exhibit 29
23 something written by Mr. Valenti allegedly for the
24 Los Angeles Times on January 30th.
25 (Valenti Exhibit 29 identified.)
110
1 MR. GARBUS: Mr. Cooper, with respect to a
2 document you've given us of October 28, 199, let
3 me just tell you we're missing page three. So if
4 you could make that available to us.
5 MR. COOPER: I'll need more information than
6 you've just given me.
7 MR. GARBUS: Exhibit 23 is the statement by
8 Jack Valenti. It's between your marked pages 8386
9 and 87. There's a page missing.
10 BY MR. GARBUS:
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4 Q I direct your attention to the last
5 sentence of the next to last paragraph, beginning
6 with, "The industry's filing of a claim against
7 the internet hackers is the first major test of
8 whether the congressional guard dog has any
9 teeth."
10 We're talking about the DMCA. This
11 namely being the first enforcement or significant
12 enforcement of the DMCA?
13 A Yes.
14 Q Do you want a break?
15 A This is fine. Go ahead.
16 Q You want something more to drink?
17 Something more to drink?
18 A This is fine. Thank you, counselor.
19 Q Tell me the significance. You say, "The
20 filing of a claim is the first major test." What
21 is the significance of that test? To whom does
22 this case have significance?
23 A Well, I think that if we win this case
24 it will certainly send a strong message to anybody
25 else that's trying to illegally decrypt.
117
1 Q So this will effect or can save the life
2 of the DVD program. Is that right? In other
3 words, it has enormous significance.
4 The DVD business is a multi million
5 dollar business, and the winning or losing of this
6 case affects that business. Is that right?
7 MR. COOPER: It calls for a conclusion and
8 lacks foundation.
9 BY MR. GARBUS:
10 Q Go ahead, sir.
11 MR. COOPER: In believe what you're inviting
12 the witness to do is to testify about the effect
13 of the conclusion of this case on the entire DVD
14 business. Is that what you mean to be asking?
15 MR. GARBUS: Yes.
16 MR. COOPER: Lacks foundation. Calls for a
17 legal conclusion.
18 THE WITNESS: I think this case has to do
19 with whether or not a congressional law is
20 meaningful or not and whether or not people can
21 get away with circumventing encryption, and that's
22 what the DECSS does. So to that extent I think
23 it's significant.
24 BY MR. GARBUS:
25 Q It will affect the entire industry. Is
118
1 that right?
2 MR. COOPER: He's answered the question. Are
3 you asking now whether the case outcome will
4 affect the entire industry?
5 MR. GARBUS: Yes.
6 MR. COOPER: I think it's the same question
7 you asked before.
8 BY MR. GARBUS:
9 Q Go ahead, sir.
10 A It will allow us to protect what we own.
11 Q Are there any other technologies that
12 you know of that are now being researched or
13 studied or put into use that can protect DVDs?
14 MR. COOPER: Talking about research by the
15 MPAA or its member companies?
16 MR. GARBUS: Yes.
17 MR. COOPER: That's yes-or-no question.
18 THE WITNESS: No, I don't know of any.
19 BY MR. GARBUS:
20 Q Do you know of any entities that are
21 conducts research of any kind?
22 A Do I personally know of anybody?
23 Q Yes.
24 MR. COOPER: Research of what kind?
25 MR. GARBUS: Security.
119
1 MR. COOPER: What do you mean, research?
2 MR. GARBUS: Research relating to encryption
3 codes or ways of secures properties like DVDs or
4 records music for the copywrite holders.
5 THE WITNESS: I'm sure there are a number of
6 companies out there that are doing this kind of
7 research.
8 BY MR. GARBUS:
9 Q Have you ever heard of CSS2?
10 A CSS2? No.
11 Q Do you know whether or not there's not
12 another encryption code ready to go if this one
13 proves to be insufficient?
14 MR. COOPER: Ambiguous. Lacks foundation.
15 The witness has already testified he's not aware
16 of substitute technology.
17 THE WITNESS: I don't know.
18 BY MR. GARBUS:
19 Q Were you told or was anyone at the MPAA
20 told the first time DVDs came out that it was just
21 a matter of time until the encryption code was
22 broken?
23 MR. COOPER: Calls for speculation.
24 THE WITNESS: I don't recall.
25 BY MR. GARBUS:
120
1 Q Did anybody tell you that this
2 encryption code was immune from being broken?
3 A I don't recall.
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18 MR. GARBUS: Let's wait until we get -- there
19 are documents we've asked to be copied. If we can
20 just wait for those documents.
21 MR. COOPER: Why don't we go off the record.
22 I have no idea how long ago they went out for
23 copying or when they will be back.
24 VIDEOGRAPHER: Off the record. The time is
25 11:17 and 30 seconds.
122
1 (Recess.)
2 VIDEOGRAPHER: We're back on the record. The
3 time is 11:25 and 58 seconds.
4 MR. GARBUS: Mr. Valenti, I mindful of your
5 condition. So I'm going to try and keep it short.
6 Can we mark the following documents?
7 And this I hope will be the last document we'll
8 talk about today?
9 (Valenti Exhibit 30 identified.)
10 BY MR. GARBUS:
11 Q I direct your attention to exhibit 30,
12 second paragraph.
13 MR. COOPER: Give me witness an opportunity
14 to review the document.
15 MR. GARBUS: Sure.
16 THE WITNESS: Which one are we looking at?
17 I'm sorry.
18 BY MR. GARBUS:
19 Q 30.
20 A I've got it right here. "Valenti warns
21 the dangers?"
22 Q Yes.
23 A What do you want me to look at?
24 Q Second paragraph. "Valenti told the
25 committee," second sentence. "The thousandth copy
123
1 of a digitized movie is as pure as the original."
2 Have you ever seen the thousandth copy
3 of a digitized movie?
4 A No.
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10 Q Where do you get that information from?
11 A I get the information from anti piracy
12 people, from member companies who locate their
13 films on the internet.
14 Q These are people that report to you?
15 A Member companies don't report to me.
16 Q The people within the MPAA report to
17 you?
18 A Correct.
19 Q Has anyone ever told you that DECSS or
20 that process was used with respect to any of those
21 films?
22 MR. COOPER: By that process you mean DECSS
23 was used to create any of the post-theatrical
24 release pirated films?
25 MR. GARBUS: Yes.
126
1 MR. COOPER: Exclude attorney-client
2 communications in your answer.
3 THE WITNESS: I don't recall.
4 BY MR. GARBUS:
5 Q Do you recall when you testified, as is
6 referred to in that document, "Playing a brief
7 clip from the MGM film Stigmata?" And this is
8 referred to in the fourth paragraph.
9 A Uh-huh. Yes.
10 Q Do you know whether anyone ever told you
11 that film originally came through the use of
12 DECSS?
13 MR. COOPER: Ambiguous. Whether the film
14 Stigmata came through the use of DECSS?
15 BY MR. GARBUS:
16 Q Whether the product that you saw had
17 been on a DVD that had been decrypted through
18 DECSS?
19 A I don't remember. Don't recall.
20 Q Directing your attention to document
21 number 32, the next to last paragraph.
22 MR. COOPER: Do you want him to review the
23 rest of the document to see what it is?
24 MR. GARBUS: I don't think he needs to, but
25 if he wants to he should.
127
1 THE WITNESS: This is 32.
2 BY MR. GARBUS:
3 Q Next to last paragraph.
4 A Beginning with what? The protection of
5 American's creative works?
6 MR. COOPER: He's drawing your attention to
7 page two. Talking the September 10, 1998
8 document?
9 MR. GARBUS: Yes.
10 MR. COOPER: That's 31.
11 BY MR. GARBUS:
12 Q So look at 31, the next to last
13 paragraph.
14 MR. COOPER: On page two?
15 MR. GARBUS: Yes.
16 THE WITNESS: "Valenti also noted threat."
17 Is that what you mean?
18 BY MR. GARBUS:
19 Q Yes. Now, you say you've seen pirated
20 copies of films as current as Milan, Steve
21 Speilberg's landmark epic, Saving Private Ryan.
22 Did anyone ever tell you that any of
23 those came from DECSS through the de-encryption of
24 DVDs through DECSS?
25 MR. COOPER: Give him a moment, please, to
128
1 review the paragraph you've now drawn his
2 attention. Then we'll ask that the question be
3 read back.
4 THE WITNESS: I don't recall.
5 BY MR. GARBUS:
6 Q Have you ever been told that any film
7 that you have seen in the last five years, pirated
8 or non-pirated, ever came from a DVD that had been
9 de-encrypted through DECSS?
10 MR. COOPER: Assumes facts not in evidence.
11 THE WITNESS: I don't know.
12 BY MR. GARBUS:
13 Q To your knowledge, has anyone at the
14 MPAA ever been told or has ever seen a film,
15 pirated or non-pirated, that has come from a DVD
16 through DECSS?
17 A I don't recall.
18 Q To your knowledge, has anyone at a major
19 studio that comprises the MPAA ever seen a film,
20 pirated or non-pirated, that allegedly came from a
21 DVD that was encrypted through a DECSS?
22 MR. COOPER: Lacks foundation.
23 THE WITNESS: I don't recall.
24 BY MR. GARBUS:
25 Q To your knowledge, aside from the movie
129
1 studios, aside from the MPAA, do you know of one
2 person who has ever seen a film that has been
3 de-encrypted from a DVD through DECSS? One
4 person?
5 MR. COOPER: Exclude in your answer any
6 information you have from counsel.
7 THE WITNESS: I don't recall.
8 MR. GARBUS: Thank you very much. That's the
9 end of the deposition.
10 THE WITNESS: Thank you, Mr. Garbus.
11 Appreciate it very much.
12 MR. COOPER: Before we go off the record, let
13 me just note that the transcript and video
14 cassette record of this deposition is covered by
15 the protective order in effect in this lawsuit;
16 that we reserve our right to designate any portion
17 of the transcript and video cassette as
18 confidential or highly confidential within the
19 terms of that protective order and that no portion
20 of the transcript or the video cassette should be
21 released or utilized for any purpose other than in
22 accordance with that until such time as we've had
23 our opportunity to make our designation.
24 MR. GARBUS: Let me just make one thing
25 clear. It's the way we've been closing all
130
1 depositions, and I want to be sure we understand
2 it here. That there are many documents we have
3 not gotten from them film studios, many documents
4 we have not gotten from the MPAA. Mr. Cooper has
5 said he is going to give us further documents now.
6 This deposition is also subject to
7 rulings. So if those documents require any
8 further deposition we shall contact the Plaintiff
9 in attempt to do that. If any of the rulings
10 sought here in our favor we shall continue the
11 depositions. And if any documents come in from
12 the other studios -- thus far we have not received
13 documents from six of the studios. We have not
14 seen the Schumann report. Seven studios. We have
15 not seen any of the internal documents of the MPAA
16 that led to the Schumann affidavit or any of the
17 affidavits -- if any of those require the
18 continuation of the deposition we shall try and
19 advise Mr. Cooper as soon as possible.
20 MR. COOPER: Just so the record is clear, I
21 don't believe you're entitled to a great many of
22 those documents. You have insisted on pursuing
23 Mr. Valenti's deposition despite the fact, as I
24 believe it's plain, that Mr. Valenti was not a
25 necessary witness in this matter. I certainly
131
1 would oppose any attempt to bring Mr. Valenti back
2 for further needless imposition on his time in
3 order to seek further deposition from him at any
4 point.
5 MR. GARBUS: Thank you. I think we've both
6 stated our position.
7 VIDEOGRAPHER: Deposition is adjourned or
8 concluded. The time is 11:37:43.
9 (Whereupon, at 11:37 a.m., the deposition was
10 concluded.)
11 ----------------------------
12 JACK VALENTI
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1 C O N T E N T S
2 WITNESS EXAMINATION
3 JACK VALENTI
4 by Mr. Garbus 6
5 E X H I B I T S
6 EXHIBIT NUMBER IDENTIFIED
7 Valenti 23 10/28/98 Valenti Statement 44
8 Valenti 24 Valenti/Tang Letter 6/30/99 44
9 Valenti 25 Valenti/Carson Letter 3/31/00 44
10 Valenti 26 MPA Document 3/30/2000 44
11 Valenti 27 "Blind Copies" Document 71
12 Valenti 28 Valenti/Finestein Letter 105
13 Valenti 29 Valenti Statement 1/30 109
14 Valenti 30 Article 122
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