TUCoPS :: Cyber Law :: 0627-g~1.txt

MPAA vs. 2600 - Deposition of Emmanuel Goldstein Day 1, June 27, 2000




  9                                      )
                      PlaintiffS,        )00 Civ. 277
 10                                      )(LAK)(RLE)
                   vs.                   )
 11                                      )
 12  A/K/A "EMMANUEL GOLDSTEIN";         ) 
     ROMAN KAZAN; AND 2600               )
 13  ENTERPRISES, INC.                   )
 14                   Defendant.         )



 18                New York, New York

 19              Tuesday, June 27, 2000





 24  Reported by:
     Thomas R. Nichols, RPR
 25  JOB NO. 110287






  6                        June 27, 2000

  7                        10:20 a.m.


  9             Deposition of EMMANUEL GOLDSTEIN, 

 10       held at the offices of Proskauer Rose LLP, 

 11       1585 Broadway, New York, New York, pursuant 

 12       to Notice, before Thomas R. Nichols, a 

 13       Registered Professional Reporter and a 

 14       Notary Public of the State of New York. 













  2  A P P E A R A N C E S:



  5       Attorneys for Plaintiffs

  6             1585 Broadway

  7             New York, New York 10036-8299

  8       BY:   LEON GOLD, ESQ.

  9             CARLA M. MILLER, ESQ.




 13       Attorneys for Defendants

 14             488 Madison Avenue

 15             New York, New York 10022

 16       BY:   MARTIN GARBUS, ESQ.

 17             EDWARD HERNSTADT, ESQ.



 20       MARK D. LITVACK, ESQ.






  1                 Proceedings

  2             THE VIDEOGRAPHER:  This is tape 

  3       number one of the videotape deposition of 

  4       Mr. Emmanuel Goldstein in the matter 

  5       Universal City Studios, Inc. et al., 

  6       plaintiffs, versus Shawn C. Reimerdes, et 

  7       al., defendants, in the United States 

  8       District Court, Southern District of 

  9       New York, Number 00 Civ 277(LAK)(RLE). 

 10             This deposition is being held at 1585 

 11       Broadway on June 27, 2000, at approximately 

 12       10:20 a.m.  My name is Ruben Martinez from 

 13       the firm of Esquire Video Services.  The 

 14       court reporter is Mr. Tom Nichols in 

 15       association with Esquire Deposition 

 16       Services. 

 17             Will the counsels please introduce 

 18       themselves.

 19             MR. GOLD:  My name is Leon Gold.  I am 

 20       with Proskauer Rose, counsel to the 

 21       plaintiffs. 

 22             MS. MILLER:  Carla Miller with 

 23       Proskauer Rose, counsel to all plaintiffs. 

 24             MR. LITVACK:  Mark Litvack with the 

 25       Motion Picture Association of America, 

  1                 Proceedings

  2       counsel for plaintiffs. 

  3             MS. FREIHEIT:  Jessica Freiheit, 

  4       summer associate, Proskauer Rose. 

  5             MR. GARBUS:  Martin Garbus, Frankfurt 

  6       Garbus, one of the attorneys for the 

  7       defendant. 

  8             MR. HERNSTADT:  And Edward Hernstadt 

  9       of Frankfurt Garbus. 

 10             THE VIDEOGRAPHER:  Will the court 

 11       reporter please swear in the witness. 

 12             MR. GARBUS:  Just let me note that the 

 13       caption you read is incorrect.  It should be 

 14       changed, that two of the people you 

 15       mentioned are no longer part of the case, 

 16       but we will give you a correct caption 

 17       before you type this up. 

 18             (Witness sworn.) 

 19             MR. GOLD:  Actually, Martin, I don't 

 20       think the caption has ever been officially 

 21       changed.

 22             MR. GARBUS:  It has been.

 23             MR. GOLD:  Did you file something? 

 24             MR. GARBUS:  Yes. 

 25             MR. HERNSTADT:  We didn't file 

  1                 Proceedings

  2       anything, but Miss Reyes, the judge's law 

  3       clerk, asks, every time we go to court she 

  4       asks, What's going on?  Aren't these people 

  5       out of the case?  And she said she was going 

  6       to talk to the Clerk about getting it 

  7       changed.  

  8             MR. GOLD:  Thus it isn't changed.

  9             MR. HERNSTADT:  I think it's been 

 10       done, but I don't know for sure.

 11             MS. MILLER:  Because our understanding 

 12       procedurally was that the defendant that had 

 13       settled out had to make a motion to change 

 14       the caption to remove their names.  But 

 15       we'll figure that out. 

 16             MR. HERNSTADT:  We'll figure that out.  

 17       I hope that the judge's deputy can take care 

 18       of it. 

 19             MS. MILLER:  Perhaps.

 20             (Continued on next page.)






  1                  Goldstein

  2  E M M A N U E L   G O L D S T E I N ,   called as a  

  3       witness, having been duly sworn by a Notary 

  4       Public, was examined and testified as 

  5       follows:


  7  MR. GOLD: 

  8       Q.    Mr. Goldstein, do you understand that 

  9  people who create artistic work are entitled to 

 10  copyright protection?

 11       A.    Absolutely. 

 12             MR. GARBUS:  I object to the question.   

 13       Direct the witness not to answer.

 14             MR. GOLD:  On what ground? 

 15             MR. GARBUS:  I think he is being 

 16       examined as a fact witness.

 17             MR. GOLD:  I asked him what 

 18       understanding he has. 

 19             MR. GARBUS:  I object to the question.  

 20       I will allow the witness to answer. 

 21       Q.    What rights do you understand copyright 

 22  holders have? 

 23             MR. GARBUS:  Object to the question.

 24             THE WITNESS:  Can I answer anyway?  

 25       OK.

  1                  Goldstein

  2       A.    Basically if you create something, 

  3  you're entitled to benefit from it.  No problem 

  4  with that. 

  5       Q.    Do you understand that copyright holders 

  6  do have a right to decide who can see or use their 

  7  work?

  8       A.    That's not my understanding of how 

  9  copyright works. 

 10       Q.    What is your understanding of how a 

 11  copyright works? 

 12             MR. GARBUS:  I think I will object to 

 13       this and I will direct the witness not to 

 14       answer.  The witness is not a lawyer.  The 

 15       same objections were made when Mr. Valenti 

 16       was being examined and he was directed not 

 17       to answer a question.   I direct the witness 

 18       not to answer.

 19       Q.    Do you understand that people who have 

 20  copyrights have the right to maximize their return 

 21  from the copyright?

 22       A.    Yes. 

 23       Q.    What does that mean to you, maximize the 

 24  return on their copyrighted work?

 25       A.    It means they are entitled to benefit 

  1                  Goldstein

  2  however much the market dictates they will benefit 

  3  from the selling of their work.

  4       Q.    Do you understand that the motion 

  5  picture companies who have copyrights on their 

  6  movies have that right?

  7       A.    Yes. 

  8       Q.    Do copyright holders have the right to 

  9  decide as you understand it who will see their 

 10  work?

 11             MR. GARBUS:  I object to the question.

 12       A.    I don't see how that's possible. 

 13       Q.    Do copyright holders have the right -- 

 14  for instance, if the copyright holder is a 

 15  novelist, do you understand that he would have the 

 16  right to decide who can sell his books to the 

 17  public? 

 18             MR. GARBUS:  I object to it.  

 19       Mr. Goldstein's version of the copyright law 

 20       is not at issue.  What is at issue is what 

 21       he did.  And to suggest that because he has 

 22       one set of beliefs rather than another set 

 23       of beliefs, something that is lawful and 

 24       appropriate is somehow unlawful and 

 25       appropriate, because any view he had it 

  1                  Goldstein

  2       seems to me is improper. 

  3             It seems to me what you're doing is 

  4       you're asking questions for the benefit of 

  5       the viewing audience and that the judge 

  6       would not permit at trial the kinds of 

  7       questions you are now asking. 

  8             MR. GOLD:  You can answer the question.

  9             THE WITNESS:  I forgot the question.  

 10             MR. GOLD:  Can you read it back.  

 11             (A portion of the record was read.)

 12       A.    Yes. 

 13       Q.    Do you understand that copyright holders 

 14  have the right to protect their work against people 

 15  who would use it without permission?

 16       A.    Absolutely. 

 17       Q.    Do you believe that anyone is entitled 

 18  to assist others in using or taking the copyright 

 19  work without permission? 

 20             MR. GARBUS:  I object to the form of 

 21       the question.  I would wait for a direction 

 22       from the judge before the witness is 

 23       required to answer that. 

 24             MR. GOLD:  You're directing witness 

 25       not to answer that question? 

  1                  Goldstein

  2             MR. GARBUS:  No, I will allow the 

  3       witness to answer.

  4             MR. GOLD:  Thank you. 

  5             MR. GARBUS:  I would like to speak to 

  6       the witness for five minutes at this point 

  7       before we go on with the deposition. 

  8             MR. GOLD:  First of all, do you want 

  9       to answer the pending question? 

 10             Would you read the question back to 

 11       the witness. 

 12             (A portion of the record was read.)

 13       A.    I think that depends on the definition 

 14  of the word "assist."  If you're explaining how 

 15  technology works, then absolutely you're allowed to 

 16  describe that, to explain that. 

 17             If you're talking about leading somebody 

 18  by the hand to make an illegal copy of something, 

 19  then no, absolutely not. 

 20             MR. GARBUS:  Can we take that 

 21       five-minute break? 

 22             MR. GOLD:  Well, I object to that, 

 23       Mr. Garbus, because I think based on what we 

 24       have done so far, and since we only started 

 25       about seven minutes ago, that there can't be 

  1                  Goldstein

  2       any reason for a break other than to 

  3       instruct your witness on how to deal with 

  4       certain questions along the lines I am 

  5       asking.  So I am going to take that position 

  6       with the judge.  I think it's improper. 

  7             MR. GARBUS:  OK.  We had as a courtesy 

  8       throughout these depositions, irrespective 

  9       of when it occurred, always allowed -- and 

 10       this happened repeatedly with your witness, 

 11       any time a lawyer defending a case said I 

 12       would like to speak to a witness, even when 

 13       a question was posed, we had extended that 

 14       courtesy to each other.  Basically we 

 15       extended it to you because these were your 

 16       witnesses being examined.  I would just 

 17       expect that we would get the same courtesy 

 18       here.

 19             MR. GOLD:  Yes, but we didn't take a 

 20       break five minutes after the deposition 

 21       started.

 22             MR. GARBUS:  Yes, we did.  We did the 

 23       exact same thing as previously.

 24             MR. GOLD:  In what depositions? 

 25             MR. GARBUS:  I don't have all the 

  1                  Goldstein

  2       depositions in front of me.  My memory is  

  3       we did it with Schulman. 

  4       Q.    What is your understanding of the 

  5  meaning of the word "assist"?

  6             MR. GARBUS:  I would object to the 

  7       form.  This witness is not a lawyer.  He is 

  8       not being deposed as a lawyer.  He is a 

  9       journalist who printed information, and I 

 10       think to ask him his definition of "assist" 

 11       is improper except to the extent that he had 

 12       conversations with his lawyer, and with his 

 13       lawyer he had discussions of that word, and 

 14       to that extent I would claim the privilege 

 15       with respect to it. 

 16             Do you have any independent knowledge 

 17       of what that word means other than the 

 18       conversations you've had with me or with 

 19       Mr. Hernstadt?  And if it is based on 

 20       conversations you've had with me and 

 21       Mr. Hernstadt, then just it's based on 

 22       conversations with your lawyer, and then 

 23       it's privileged. 

 24             THE WITNESS:  Uh-huh.

 25       A.    We did discuss that, so I would have to 

  1                  Goldstein

  2  say it's privileged. 

  3       Q.    Do you ever use the word "assist" in 

  4  your writing?

  5       A.    I may have on occasion.

  6       Q.    What does it mean when you use it?

  7       A.    To help, but it's a very general type of 

  8  a word.

  9       Q.    Just tell me what it means to you.

 10       A.    To help, to aid.

 11       Q.    To help or aid?

 12       A.    Yes. 

 13       Q.    Using that definition of the word 

 14  "assist," do you understand that anyone is entitled 

 15  to assist others in taking or using a copyright 

 16  work without permission? 

 17             MR. GARBUS:  I will object to it.  To 

 18       the extent of your knowledge of copyright 

 19       law or the word "assist" comes from 

 20       conversations with me or your attorneys, 

 21       then just say it.  And to the extent that 

 22       these discussions were held in the context 

 23       of preparation for this case, it is 

 24       privileged.

 25       A.    Again, that's something that we 

  1                  Goldstein

  2  discussed.  Whether it's a synonym of the word 

  3  "assist," it's still something we discussed. 

  4       Q.    When did that discussion take place?  

  5  Just the date.

  6       A.    Before we came over here.

  7       Q.    Today.

  8       A.    Yes. 

  9       Q.    And you spent about an hour?

 10       A.    Not on the word "assist."

 11       Q.    With Mr. Garbus?

 12       A.    But, yeah, on various things, yes.

 13       Q.    Had you met with him before for the 

 14  purpose of preparing for your deposition?

 15       A.    Once, yes.

 16       Q.    When was that?

 17       A.    Yesterday. 

 18       Q.    When was it you talked about whether 

 19  anyone is entitled to assist others in taking 

 20  someone's copyrighted work without permission? 

 21             MR. GARBUS:  I will object to the 

 22       question as privileged.

 23       Q.    Today or yesterday? 

 24             MR. GARBUS:  I will object to the 

 25       question as privileged.  When he spoke to 

  1                  Goldstein

  2       his lawyer about it is privileged. 

  3             THE WITNESS:  Should I answer? 

  4             MR. GARBUS:  Yes.

  5       A.    Today. 

  6       Q.    Did you have any understanding prior to 

  7  yesterday of whether anyone was entitled to assist 

  8  others in using a copyrighted work without 

  9  permission?

 10             MR. GARBUS:  I will object to it 

 11       except to the extent that you had some 

 12       awareness of whether linking was permitted 

 13       or not permitted and where you got that 

 14       understanding.

 15       Q.    I am not interested in your definition 

 16  of the word "linking" or posting in this question. 

 17             What I am asking you is before you 

 18  talked to your lawyers about the subject, your 

 19  present lawyers about the subject, did you have any 

 20  understanding before that of whether anyone was 

 21  entitled to assist others in taking a copyrighted 

 22  work without permission? 

 23             MR. GARBUS:  I object to it.  That 

 24       specifically -- object to form.  That 

 25       specifically relates to the question of 

  1                  Goldstein

  2       linking.  So if he had some knowledge of 

  3       whether linking was permissible or not 

  4       permissible, the question is did he have any 

  5       discussions about linking or did he have any 

  6       knowledge either from the previous court's 

  7       decision or now about linking, which is what 

  8       assisting is. 

  9             MR. GOLD:  Can you read the question 

 10       back to the witness, and then I am going to 

 11       ask you to answer that, sir. 

 12             (A portion of the record was read.)

 13       A.    I had an opinion.  Yes. 

 14       Q.    What was your opinion?

 15       A.    That any kind of copyright infringement 

 16  is wrong.  Helping someone obviously to infringe 

 17  upon copyright would be wrong too. 

 18       Q.    Prior to yesterday did you have any 

 19  understanding of whether anyone was entitled to 

 20  break through a protective device which protects 

 21  digital copyrighted work in order to take that work 

 22  without permission? 

 23             MR. GARBUS:  Objection unless you're 

 24       also including the term "fair use."  It's 

 25       misleading unless you put that qualifier in 

  1                  Goldstein

  2       the sentence. 

  3             MR. GOLD:  Do you remember the 

  4       question, Mr. Goldstein?

  5             THE WITNESS:  I'd appreciate having it 

  6       read back. 

  7             (A portion of the record was read.)

  8       A.    Yes. 

  9       Q.    What was your understanding?

 10       A.    That that kind of thing was wrong.  That 

 11  taking something without permission is wrong.

 12       Q.    Is there a time in 1999 when you were 

 13  posting DeCSS?

 14       A.    In 1999 as of late November we mirrored 

 15  the site on our web site. 

 16       Q.    Did 2600 ever post DeCSS?

 17       A.    That's what mirroring is, yes. 

 18       Q.    For what purpose?

 19       A.    At the time it had only just happened a 

 20  couple of weeks earlier.  We had noted the events 

 21  as someone had figured out the encryption standard 

 22  being used by DVDs and had found it to be rather 

 23  badly written. 

 24             When we saw that those people were being 

 25  intimidated and forced to shut down their web 

  1                  Goldstein

  2  sites, as journalists we stood up and said this is 

  3  wrong.  And then we were listed then in all future 

  4  court records.

  5       Q.    You only mirrored DeCSS after this suit 

  6  was started?

  7       A.    No, we mirrored DeCSS after we became 

  8  aware that people around the world were being 

  9  threatened because they were showing people how the 

 10  encryption worked.

 11       Q.    What was the purpose of the mirror?

 12       A.    As journalists we have a very firm sense 

 13  of freedom of information, and we believe people 

 14  have the right to know how things work.  As a 

 15  publisher of a magazine that deals with such 

 16  issues, I feel strongly that we all have both the 

 17  desire and the right to know how things around us 

 18  operate.  And I don't see that as related in any 

 19  way to theft of those services. 

 20       Q.    When you mirrored or posted DeCSS on 

 21  2600, how did you make sure that people who simply 

 22  wanted to see movies that were copyrighted without 

 23  buying them would not use DeCSS?

 24       A.    Well, there's two answers to that.  

 25  First of all, when you tell someone how something 

  1                  Goldstein

  2  works, when you give information out, people can 

  3  always use information in a good or a bad way.  

  4  That's just the nature of information. 

  5             The second part of that is that, what 

  6  was posted, DeCSS, has got nothing to do with 

  7  illegal copies.  And I think that's been proven 

  8  time and again.  I don't think a single case of 

  9  copyright violation has been traced to DeCSS.  

 10  Copies of DVDs have been made. 

 11             We had in fact reported two years 

 12  earlier on November 25, 1997, on one of our radio 

 13  shows that illegal copies of DVDs were being made 

 14  in what is known as bit by bit transfer using a 

 15  program called SoftDVD.  And what the DeCSS code 

 16  showed instead was that the encryption was weak, 

 17  and that encryption was more about control of the 

 18  playing back as to where you played it back and how 

 19  you played it back, not making copies. 

 20       Q.    Did you understand at the time you 

 21  posted DeCSS that most people who owned computers 

 22  would not understand how DeCSS works even if they 

 23  downloaded DeCSS?

 24       A.    Most people I know who have computers 

 25  would understand it.

  1                  Goldstein

  2       Q.    But you know far fewer than 50 percent 

  3  of the people in the United States that have 

  4  computers?

  5       A.    Absolutely, yes.

  6       Q.    You know far fewer than 2 percent of the 

  7  people who own computers.

  8             MR. GARBUS:  We would agree it is 

  9       one-tenth of one million.

 10       A.    I don't know that many people.

 11       Q.    Did you believe it was appropriate to 

 12  post DeCSS even though ten people, and only ten 

 13  people, might use that, might download it for the 

 14  purpose of finding out how it works? 

 15             MR. GARBUS:  I will object to the form 

 16       of the question.  There's been no proof that 

 17       ten people have used it.  I object to the 

 18       form of the question, about whether he knew 

 19       or understood. 

 20       A.    I would have to say that if I applied 

 21  that logic to everything I wrote, I wouldn't be 

 22  writing anything.  Because someone can always take 

 23  what I've written and use it in a bad way and then 

 24  I would be up nights worrying about, you know, what 

 25  they did wrong.  I don't think anyone has ever used 

  1                  Goldstein

  2  DeCSS to pirate a film.

  3       Q.    Do I take it that you agree that you had 

  4  the right or you believe you had the right to post 

  5  DeCSS even though far less than one percent of the 

  6  people who would download it would have any 

  7  interest in how CSS or DeCSS works? 

  8             MR. GARBUS:  I object to the form of 

  9       the question. 

 10       A.    I am not sure it is possible to say how 

 11  many people who downloaded it understand it.   I 

 12  don't think a significant portion of the American 

 13  public downloaded it. 

 14             I do think the people who went to the 

 15  web site read the text that surrounded it and 

 16  hopefully learned something from the text, and if 

 17  they were interested in pursuing it further, 

 18  learning more about the technology, then they had 

 19  to look at the program as well.

 20       Q.    Was there anything wrong in your 

 21  printing the text that accompanied the letters 

 22  DeCSS?  

 23       A.    I'm not sure I understand your question. 

 24             MR. GARBUS:  Objection to form.

 25       Q.    You had an absolute right, didn't you, 

  1                  Goldstein

  2  in saying whatever you said on your web site except 

  3  for DeCSS?  Isn't that right? 

  4             MR. GARBUS:  Objection to the form of 

  5       the question.  He can't refer to the term 

  6       "DeCSS" on his Web site?  Is that the 

  7       question? 

  8             MR. GOLD:  You can answer.

  9             THE WITNESS:  Can you just repeat that 

 10       back? 

 11             MR. GARBUS:  I didn't understand the 

 12       question. 

 13             (A portion of the record was read.)

 14       A.    I had the right to say what I said on 

 15  the web site, and I believe that extends to posting 

 16  the code as well. 

 17       Q.    Do you or any corporation you're 

 18  affiliated with have a copyright, own a copyright?

 19       A.    Yes, our words are copywritten in our 

 20  magazine.

 21       Q.    Who caused them to be copywritten?

 22       A.    I did.

 23       Q.    Why?

 24       A.    It's standard to have a copyright to 

 25  protect your interest.  Someone could take 2600 and 

  1                  Goldstein

  2  just simply reproduce it if we had no copyright.

  3       Q.    What interests were you protecting?

  4       A.    Well, our interests obviously.  We have 

  5  words that we write and we don't want somebody else 

  6  just taking them.  But by the same token, we have 

  7  no problem with people spreading our information 

  8  around.  Because we write it for the purpose of 

  9  being read.  But we do hold the copyright.

 10       Q.    I think I am confused.  I don't 

 11  understand why you have the copyright if you say 

 12  that you don't care who uses your material.

 13       A.    Well, there's different standards of 

 14  use.  If someone were to take our magazine and 

 15  simply duplicate it, well, that's obviously very 

 16  bad.  If somebody were to, say, quote something 

 17  from one of our articles, we have no problem with 

 18  that.  We consider that fair use.

 19       Q.    In other words, if they had quoted 

 20  something, but not the whole thing, you consider 

 21  that OK.

 22       A.    Right.

 23       Q.    And when you got the copyright, one of 

 24  the purposes would protect anyone from taking the 

 25  whole thing.

  1                  Goldstein

  2       A.    Yes. 

  3       Q.    Is it your understanding that the 

  4  current court injunction against your posting DeCSS 

  5  violates your right? 

  6             MR. GARBUS:  I will object to it.

  7       A.    I wouldn't say it violates my rights.  I 

  8  say that it's open to contention whether it's right 

  9  or not, but obviously we're following the 

 10  injunction so we respect it.

 11       Q.    Do you believe that the current court 

 12  injunction violates rights that you have --

 13             MR. GARBUS:  I object.

 14       Q.    -- in any way, shape or form?

 15             MR. GARBUS:  Object to the form of the 

 16       question.

 17       Q.    Or do you believe the current court 

 18  injunction is perfect proper and appropriate?  And 

 19  I am asking for your beliefs. 

 20             MR. GARBUS:  I object to the form of 

 21       the question.  If you can't exclude anything 

 22       from any privileged communications you had, 

 23       any conversations with counsel telling you 

 24       what your rights are, so to the extent it 

 25       comes out of conversations with counsel, 

  1                  Goldstein

  2       just say that and I will claim the 

  3       privilege.

  4       A.    I respect the injunction.

  5       Q.    Excuse me?

  6       A.    I respect the injunction.  I don't 

  7  believe the injunction is violating my rights per 

  8  se.  I think it's a fight that we're engaged in.  

  9  And obviously the injunction was filed against us.  

 10  We respect that and we followed it.  So....

 11       Q.    Do you understand that the injunction 

 12  prohibits you and 2600 from posting DeCSS?

 13       A.    And we have done just that.

 14       Q.    Do you think it's appropriate and right 

 15  that the court did that? 

 16             MR. GARBUS:  I object to it to the 

 17       extent that what the judge did is right or 

 18       wrong comes out of conversations you had 

 19       with counsel.

 20             MR. GOLD:  Oh, my gosh.  Martin, I 

 21       object to what you're doing.

 22       A.    I see a difference between what the 

 23  judge said and what the people behind the case are 

 24  saying.  Obviously I don't believe the people 

 25  behind the case are right.  I don't think the judge 

  1                  Goldstein

  2  acted improperly.  I think the judge is doing what 

  3  judges do, and I have every faith in that.

  4       Q.    What do judges do?

  5       A.    Judges make decisions based on the 

  6  evidence given to them, and it's my hope that we'll 

  7  present evidence to prove that we're right in the 

  8  end. 

  9             MR. GARBUS:  Leon, as you know, 

 10       there's a motion to vacate the injunction. 

 11       Q.    I take it you don't believe that the 

 12  injunction is inappropriate.

 13       A.    The injunction in itself.

 14             MR. GARBUS:  I object to the form of 

 15       the question. 

 16       Q.    Do you think you have a right to post 

 17  DeCSS?

 18       A.    Yes, I do. 

 19       Q.    Why?

 20       A.    I consider it --

 21             MR. GARBUS:  I object to the form of 

 22       the question.

 23       A.    I consider it a form of speech.  I 

 24  consider it a form of basically writing about 

 25  technology showing how things work, and I think it 

  1                  Goldstein

  2  is a very -- it is a chilling effect if you start 

  3  punishing people for showing how something works.  

  4  It is one step away from punishing someone from 

  5  talking about it.  And I think as journalists we 

  6  need to stand up to that.

  7             MR. GOLD:  I would like to have this 

  8       marked as Plaintiffs' Exhibit 1.

  9             (Plaintiffs' Exhibit 1, piece of paper 

 10       with the letters DeCSS written on it, marked 

 11       for identification, as of this date.)

 12       Q.    I am going show you Exhibit 1, 

 13  Mr. Goldstein.  Give you a chance to look at it.   

 14  It won't take very long.

 15       A.    OK. 

 16       Q.    What does that mean to you?

 17       A.    It means you have written DeCSS on a 

 18  piece of paper.

 19       Q.    But what does it mean?

 20             MR. GARBUS:  Object to the form of the 

 21       question.

 22       A.    What does it mean? 

 23       Q.    Yes.

 24       A.    It's -- it doesn't really mean a whole 

 25  lot to me to be honest.  You have written something 

  1                  Goldstein

  2  on a piece of paper.  But this is not the same 

  3  thing as DeCSS code. 

  4             MR. GARBUS:  I object to the form of 

  5       the question. 

  6       Q.    You say that is not the DeCSS code; is 

  7  that right?

  8       A.    Five letters on a piece of paper?  No, 

  9  sir, it's not. 

 10       Q.    Is that a word? 

 11             MR. GARBUS:  I object to the form of 

 12       the question.

 13       Q.    DeCSS.

 14             MR. GARBUS:  I object to the form of 

 15       the question.  I direct the witness not to 

 16       answer.  DeCSS speaks for itself.  You have 

 17       written five letters on a piece of paper.

 18             MR. GOLD:  You're going to direct the 

 19       witness not to answer?  On what ground? 

 20             MR. GARBUS:  Can you tell me where 

 21       you're doing with this deposition?

 22             MR. GOLD:  No.

 23             MR. GARBUS:  It is now close to 11 

 24       o'clock.  It seems to me what you have done 

 25       in the last half hour is ask questions that 

  1                  Goldstein

  2       have limited relevancy, if any, to this 

  3       lawsuit, his understanding of the law.  

  4             MR. GOLD:  I'm sorry.

  5             MR. GARBUS:  And I appreciate it -- 

  6       don't apologize until I'm through.  I 

  7       appreciate it if you get to the questions 

  8       that I perceive to be at issue in this 

  9       lawsuit. 

 10             I mean, I think it is very cute to 

 11       write DeCSS on a piece of paper and I 

 12       presume you can examine him for half an hour 

 13       on it, but it has nothing to do with the 

 14       issues in this lawsuit.  What his 

 15       understanding is of five letters you have 

 16       written on a blank piece of paper --

 17             MR. GOLD:  I think an objection is OK, 

 18       but you're filibustering.

 19             MR. GARBUS:  Can I finish? 

 20             MR. GOLD:  No.   I think you're 

 21       filibustering.  That's not an objection.  

 22       That's improper. 

 23       Q.    Now you can answer the question.  Is 

 24  that a word, DeCSS?

 25       A.    Not in the English language.  It's five 

  1                  Goldstein

  2  letters.  It stands for something. 

  3       Q.    And I take it it has no meaning to you.

  4       A.    It in that form?  Well, it has meaning 

  5  in that it represents something.  It represents 

  6  what we're talking about today.  Other than that, I 

  7  am not sure if that's the way you're presenting it. 

  8       Q.    Thank you.  Do you believe that when you 

  9  were posting DeCSS you were engaged in an act of 

 10  civil disobedience? 

 11             MR. GARBUS:  Objection.  He has 

 12       already testified he was the media and was 

 13       presenting as part of a story.

 14       A.    When we first posted it we posted it 

 15  as journalists talking about a news story.

 16       Q.    How was the posting accomplished?

 17       A.    The posting of the actual DeCSS or the 

 18  article surrounding it? 

 19       Q.    The posting of DeCSS.  What you call the 

 20  actual DeCSS.

 21       A.    I wasn't the person who actually copied 

 22  it, but I imagine it was taken from one of the 

 23  sites that had it up on the Net.  We verified what 

 24  was in it and put it up on our site.

 25       Q.    By whom?  Who did that?

  1                  Goldstein

  2       A.    Probably our webmaster.

  3       Q.    And who's that?

  4       A.    His on-line name is Macki. 

  5       Q.    And his real name?

  6       A.    I know his first name.  His first name 

  7  is Mike.  Last name begins with the letter S.  

  8  That's really all I know.  I know how to E-mail.  I 

  9  know how to get ahold of him, but I don't know his 

 10  full last name.

 11       Q.    He is not employed by you?

 12       A.    No.

 13       Q.    Did you ask him to post DeCSS on your 

 14  site?

 15       A.    We talked about it and agreed that that 

 16  was the appropriate thing to do.

 17       Q.    So you did ask him to do it?

 18       A.    We conferred.  We agreed together.  I 

 19  didn't direct him to do this.

 20       Q.    Does he have any ownership of your 

 21  stock?

 22       A.    Not as such.  I mean, he has a say in 

 23  the kinds of things that go on there.

 24       Q.    Do you have an ownership of your stock?

 25       A.    Yes. 

  1                  Goldstein

  2       Q.    You own stock in the company that 

  3  controls your stock?

  4       A.    It's a private corporation, yes. 

  5       Q.    Did you approve of what he did posting 

  6  the CSS on your site?

  7       A.    DeCSS.

  8       Q.    DeCSS on your site.

  9       A.    Yes. 

 10       Q.    In the past six months have you been 

 11  engaged in any kind of reverse engineering of 

 12  anything?

 13       A.    I am a journalist.  I am not an 

 14  engineer.

 15       Q.    So the answer is no?

 16       A.    The answer is no.

 17       Q.    In the last six months have you been 

 18  engaged in any cryptographical research?

 19       A.    No.  

 20       Q.    Prior to the court proceedings did you 

 21  talk to any people about DeCSS who were in fact 

 22  engaged or planning to engage in reverse 

 23  engineering?

 24       A.    Not with my knowledge.  I talked to a 

 25  lot of people on the Internet.  People message back 

  1                  Goldstein

  2  and forth and some might be very knowledgeable in 

  3  certain fields.  So it's very hard for me to say 

  4  whether or not I was talking to somebody who was 

  5  doing something like that.

  6       Q.    Since the commencement of this lawsuit 

  7  have you talked to any people who are using DeCSS 

  8  for the purpose of reverse engineering?

  9       A.    To be honest, I have never found anybody 

 10  who has successfully gotten DeCSS to work.

 11       Q.    So the answer to my question is no?

 12       A.    No.

 13       Q.    You haven't talked to any people. 

 14             And where did you get the understanding 

 15  that people can't get DeCSS to work?

 16       A.    I've gotten messages, again on the 

 17  Internet.  I remember back towards the later part 

 18  of last year seeing messages from people who are 

 19  trying to figure it out and it was too complex for 

 20  them. 

 21             I imagine there are some people who have 

 22  gotten it to work and have been able to use DVDs on 

 23  their Linux machines, which is the purpose of it.  

 24  But myself, I have not talked to anybody personally 

 25  who has done that.

  1                  Goldstein

  2       Q.    To your knowledge, has anyone in the 

  3  world currently engaged in reverse engineering 

  4  DeCSS or CSS?

  5       A.    Which? 

  6       Q.    CSS.

  7       A.    I think it's already been done.  I think 

  8  CSS has pretty much been shown to be not very 

  9  secure encryptionwise.

 10       Q.    Do you know of any cryptographical 

 11  research with respect to DeCSS that's been done 

 12  anywhere in the world?

 13       A.    Not specifically, no.  

 14       Q.    How did you come to the understanding 

 15  that the purpose of DeCSS was to view movies on a 

 16  Linux machine?

 17       A.    There's been quite a lot of discussion 

 18  in various forums and at conferences and various 

 19  places like that by people who are extremely 

 20  knowledgeable in the field, from the founders of 

 21  Linux to its users, and it became very clear very 

 22  quickly that this program was simply made so that 

 23  they would have a way of viewing DVDs as well, 

 24  since they were not granted a license to have a DVD 

 25  player on their machines.

  1                  Goldstein

  2       Q.    Do you know if there is a Linux-based 

  3  DVD player that existed?

  4       A.    I had heard there is something being 

  5  developed that was not open source.  It was closed 

  6  source.  But it was something that was being 

  7  developed.

  8       Q.    Why do you say the purpose of DeCSS was 

  9  to allow DVDs to be played in a Linux-based player 

 10  if there is no Linux-based player? 

 11             MR. GARBUS:  Objection as to form.

 12       A.    Because by using DeCSS you would have a 

 13  Linux-based player, which previously did not exist.  

 14  In fact, previously was illegal. 

 15       Q.    Do you mean that in order to play the 

 16  movies you're talking about people are decrypting 

 17  CSS?

 18       A.    The only way to play a movie on a Linux 

 19  machine is to decrypt it so that you can see it on 

 20  a different platform.  The way it had been before, 

 21  you had to buy a particular operating system or a 

 22  particular machine that had already been granted a 

 23  license, which meant that the thousands, millions 

 24  of people with Linux machines were unable to use 

 25  DVDs.  They had already bought the DVDs.  They had 

  1                  Goldstein

  2  already bought the computers.  But they were unable 

  3  to use them. 

  4       Q.    Is that because the people that held the 

  5  copyrights to the movies encrypted DVDs so they 

  6  couldn't be played except on a licensed player?

  7       A.    My understanding is that they encrypted 

  8  them and only gave licenses to organizations 

  9  willing to pay very large fees, and that's 

 10  basically my understanding of it. 

 11       Q.    Once you decrypt the movie, how can you 

 12  play it if there's no player? 

 13             MR. GARBUS:  We're talking now about a 

 14       Linux operating system? 

 15             MR. GOLD:  Yes. 

 16             MR. GARBUS:  Objection to the form of 

 17       the question.

 18             MR. GOLD:  Yes, we are talking about 

 19       Linux.

 20             MR. GARBUS:  You don't understand the 

 21       technology, Mr. Gold.  I object to the form 

 22       of the question.  It doesn't make sense.  

 23             Go ahead, answer it.

 24       A.    Ask it one more time so I'm clear.

 25       Q.    Once you decrypt the movie how can you 

  1                  Goldstein

  2  watch it if there's no player?

  3       A.    My understanding with the way DeCSS 

  4  works, and I could be wrong because I have never 

  5  used it myself, is that by using this particular 

  6  tool you then have a player that will allow you to 

  7  play the film that you've decrypted. 

  8             And if that's not the case then there 

  9  might be another utility out there that does make a 

 10  player that's a software-based player.

 11       Q.    You're not sure.

 12       A.    I am not entirely sure on that, no.  

 13       Q.    When did you first find out as you say 

 14  that the purpose of DeCSS was to view movies on a 

 15  Linux player?

 16       A.    Well, right away we knew that was 

 17  primary purpose. 

 18       Q.    How did you know?

 19       A.    By talking to people who were experts in 

 20  the field of Linux.

 21       Q.    Who did you talk to?

 22       A.    I know there are some people involved in 

 23  the Livid project, L-i-v-i-d, which was a project 

 24  to make a DVD player for Linux which has been going 

 25  on for quite some time.

  1                  Goldstein

  2       Q.    My question was who did you talk to, 

  3  what person did you talk to that gave you --

  4       A.    I don't know specific names, 

  5  unfortunately.  These are people I talk to either 

  6  on line or I met briefly at a conference.

  7       Q.    What is the -- I see.  You have no 

  8  record of the fact that they gave you this 

  9  information.  No written record.  

 10       A.    I have no written record myself, but 

 11  it's been posted in many public forums.

 12       Q.    Did you exchange communications with 

 13  people involved in the Livid project by E-mail?

 14       A.    I may have at some point last year when 

 15  it was first unfolding, yes.

 16       Q.    Do you have those E-mails?

 17       A.    No.  

 18       Q.    You wiped them out of --

 19       A.    I don't save outgoing mail and I am very 

 20  stingy with what I save because I get so much mail.

 21       Q.    Can it be retrieved from your hard 

 22  drive?

 23       A.    No.   It was so long ago. 

 24       Q.    For how long can you retrieve messages 

 25  on your hard drive?

  1                  Goldstein

  2       A.    I have never tried.  I mean, it's a 

  3  Unix-based system.  I think it's very -- it's not 

  4  like the White House.  It is very difficult to 

  5  retrieve something.

  6       Q.    Is it fair to say you actually don't 

  7  know whether or not these messages could be 

  8  retrieved?

  9       A.    Oh, I am pretty positive they can't be 

 10  retrieved.

 11       Q.    When you mean "pretty positive," what 

 12  does that mean?  Not positive or positive?

 13       A.    Positive.

 14       Q.    Positive.

 15       A.    Yes. 

 16       Q.    How did you get to know that it is 

 17  positive that you can't retrieve messages that are 

 18  six months old?

 19       A.    Well, I base that on when I wanted to 

 20  retrieve things in the past and I asked sysadmins.  

 21  I asked them can I get this back and they say no 

 22  way. 

 23             I imagine that probably holds true no 

 24  matter what the contents were.

 25       Q.    And you have no knowledge of anyone on 

  1                  Goldstein

  2  the Livid project that you talked to about DeCSS.

  3       A.    Not off the top of my head.  I mean, 

  4  it's not that large an organization, so I don't 

  5  think it's difficult to figure out who --

  6             MR. GARBUS:  If you leave a space in the 

  7       deposition, Mr. Goldstein, when he returns 

  8       the deposition, will see if he can recall 

  9       any names and will put them in the 

 10       deposition. 

 11             MR. GOLD:  OK. 

 12  TO BE FURNISHED:  ________________________________

 13  __________________________________________________.

 14       Q.    Do you know any people who belong or who 

 15  work on the Livid project whether or not you have 

 16  talked to them? 

 17       A.    Just through a communication and 

 18  possibly meeting them at a conference.

 19       Q.    Do you know their names?

 20       A.    I'd probably remember if I heard them.  

 21  But I don't remember the names off my head.

 22       Q.    What is the Livid project?

 23       A.    As I said, Livid project, my 

 24  understanding is an ongoing project to make a 

 25  DVD player for Linux machines.

  1                  Goldstein

  2       Q.    And they're still at it?

  3       A.    I believe so.

  4       Q.    How do you know?

  5       A.    I've just heard from various public 

  6  discussions.

  7       Q.    Prior to your conversations with your 

  8  attorneys this week, did you believe that you were 

  9  allowed to post DeCSS or link to other sites 

 10  posting DeCSS as long as several people downloaded 

 11  DeCSS to engage in cryptographical research?  

 12             MR. GARBUS:  Can I hear the question 

 13       again.

 14             (A portion of the record was read.)

 15             MR. GARBUS:  I object to the form of 

 16       the question.  It's several questions in 

 17       one.  Can't you just ask the question 

 18       simply?  There are several different parts 

 19       of the question, Mr. Gold.  Don't you see 

 20       that? 

 21             Do you understand the question?  Can 

 22       you answer it?

 23             THE WITNESS:  I will give it my best 

 24       shot.

 25       A.    Basically I think it's not a conditional 

  1                  Goldstein

  2  thing.  When you post something, you post something 

  3  as long as somebody downloads it for a particular 

  4  purpose. 

  5             Our understanding was that it was 

  6  perfectly OK to post this.  Obviously when the 

  7  injunction happened we stopped posting it.  And 

  8  linking is a completely different issue.

  9       Q.    So I take it it was not your 

 10  understanding that you were allowed to post DeCSS 

 11  as long as several people downloaded CSS to use -- 

 12  downloaded DeCSS --

 13             MR. GARBUS:  Object to the form of the 

 14       question.

 15       Q.    -- in order to engage in cryptographical 

 16  research?

 17       A.    I think I answered.  I think I 

 18  answered as best I can.  It's not a yes-no 

 19  question.  You have a conditional phrase in there, 

 20  so --

 21       Q.    Is it your belief that DeCSS can be made 

 22  available to anyone in the United States as long as 

 23  a few people use it for cryptographical research or 

 24  reverse engineering? 

 25             MR. GARBUS:  I object to the form of 

  1                  Goldstein

  2       the question.  I don't understand it.  It's 

  3       a conditional question.  Can't you rephrase 

  4       the question in an intelligible way? 

  5       Q.    You can answer.

  6       A.    Again, it is information.   We can't put 

  7  conditions on the exchange of information and say, 

  8  you can only read this if you're going to use it in 

  9  a particular way.  We put up information on our 

 10  site and people read it.  That's the relationship 

 11  we have. 

 12       Q.    So your right to post DeCSS doesn't 

 13  derive from the fact that -- it doesn't derive from 

 14  how it is used by the end user; is that right? 

 15             MR. GARBUS:  I will object to it.  

 16       That's not what the witness said.  The 

 17       witness said --

 18             MR. GOLD:  I don't care what the 

 19       witness said.  I am asking a different 

 20       question. 

 21             MR. GARBUS:  If you don't care what 

 22       the witness said, Mr. Gold, then you can't 

 23       say isn't this -- what you just said.  If 

 24       you're not going to listen to the witness, 

 25       then don't listen to the witness.  But you 

  1                  Goldstein

  2       can't phrase questions that way.  I object 

  3       to the form of the question.  And you know 

  4       better than that. 

  5       Q.    Do you believe that the end use of DeCSS 

  6  has nothing to do with the lawfulness of posting 

  7  it? 

  8             MR. GARBUS:  I object to the form of 

  9       the question.  I object to the question on 

 10       the grounds that it calls for a legal 

 11       conclusion.  This witness is not a lawyer.  

 12       Nor should he be asked about questions 

 13       concerning legal conclusions. 

 14             If there's anything that in that 

 15       question that comes as a result of 

 16       conversations that you and I have had as 

 17       counsel, namely with respect to legal 

 18       conclusions, just say it.   If you think you 

 19       can answer the question in some intelligible 

 20       way, then answer it.   

 21             THE WITNESS:  Could you read back the 

 22       question, please.

 23             MR. GARBUS:  Mr. Gold, I don't know 

 24       what you're doing.  These questions are not 

 25       admissible at a trial.  The judge won't let 

  1                  Goldstein

  2       you ask him.  So why ask them here now?   

  3             (A portion of the record was read.)

  4             MR. GARBUS:  If you can't answer the 

  5       question, just say you can't answer the 

  6       question. 

  7       A.    It's a really hard question for me to 

  8  answer.  I don't think they're related, no.   

  9  That's my view as a journalist.  I am not a legal 

 10  expert. 

 11             MR. GOLD:  Mr. Garbus, I am going to 

 12       respectfully request that you cease from 

 13       directing your witness on how to answer a 

 14       question.  If you wanted to do that before 

 15       you came here today, you had ample 

 16       opportunity.  If it continues, I will take 

 17       it to the judge and we'll play the movie.

 18             MR. GARBUS:  Whatever you want to do 

 19       is fine. 

 20             MR. GOLD:  I will have to.  It's 

 21       inappropriate.

 22       Q.    Prior to talking to your lawyer in the 

 23  last two days did you have an understanding of the 

 24  meaning of the word "fair use"?

 25       A.    Yes.

  1                  Goldstein

  2       Q.    Is that an understanding you came to 

  3  through your profession as a journalist? 

  4       A.    Yes. 

  5       Q.    What was that understanding?

  6       A.    That it's legal to use bits of 

  7  copyrighted material for the purpose of describing 

  8  something, showing an example of something.  For 

  9  instance, even a student presenting something to a 

 10  class might play something from a videotape for 

 11  instance.  That's fair use.  You might see 

 12  something on television that shows a scene from a 

 13  particular movie.  That's fair use.  A parody is 

 14  fair use. 

 15       Q.    Was it your understanding before you 

 16  talked to your lawyers in the past two days that 

 17  fair use only related to using bits of copyrighted 

 18  work or pieces of copyrighted work but not the 

 19  whole thing?

 20       A.    That's my understanding.  The whole 

 21  thing isn't exactly fair use. 

 22             MR. GOLD:  I would like to have this 

 23       marked as Plaintiffs' Exhibit 2.

 24             MR. GOLD:  A document which on the 

 25       cover says "2600, The Hacker Quarterly, 

  1                  Goldstein

  2       Volume Seventeen, Number One, Spring 2000." 

  3             (Plaintiffs' Exhibit 2, Spring 2000 

  4       issue of 2600, The Hacker Quarterly, 

  5       magazine, marked for identification, as of 

  6       this date.) 

  7       Q.    Can you describe that document, 

  8  Mr. Goldstein?

  9       A.    Yes.  This is the magazine I publish, 

 10  2600, The Hacker Quarterly.  This is the spring 

 11  2000 edition. 

 12       Q.    On page 7 there is what appears to be a 

 13  photograph.

 14       A.    Yes. 

 15       Q.    Is that in fact a photograph?

 16       A.    It's a doctored photograph.  This is -- 

 17  it's parody.  It's basically taken from the World 

 18  Trade Organization demonstrations and you spot MPAA 

 19  on the back of their jackets.  

 20       Q.    So if you know, is it true that the only 

 21  thing in this picture that's not true, not actual, 

 22  are the initials MPAA?

 23       A.    Well, the initials are --

 24       Q.    I mean, that's not a photograph of 

 25  somebody.

  1                  Goldstein

  2       A.    No, as I said, we put MPAA over whatever 

  3  was there before, if there was anything there 

  4  before.  So no, there were not MPAA storm troopers 

  5  in the streets.

  6       Q.    But pictures of these troops or police 

  7  people, that was an actual photo?

  8       A.    That was an actual photograph, yes.  

  9  That was taken in Seattle in November.

 10       Q.    And in what demonstration did you say?

 11       A.    World Trade Organization.

 12       Q.    What was the demonstration about?

 13       A.    That was demonstration against the World 

 14  Trade Organization in Seattle.  November 30th, I 

 15  think.

 16       Q.    In the second paragraph there's some 

 17  discussion about a Mitnick.  I gather that's a 

 18  Mr. Mitnick?  Page 5.

 19       A.    Yes. 

 20       Q.    Who is he?

 21       A.    Kevin Mitnick was a computer hacker who 

 22  had been imprisoned for five years. 

 23       Q.    Do you know what he was convicted of?

 24       A.    In the end he was convicted of basically 

 25  misrepresenting himself on the telephone and having 

  1                  Goldstein

  2  source code that belonged to cellular phone 

  3  companies that was looking at.

  4       Q.    Do you know anything about the charge of 

  5  misrepresenting himself on the telephone?

  6       A.    It's basically calling someone on the 

  7  phone saying that you're an employee of a 

  8  particular company when you're not in order to get 

  9  some bit of information.  That's my understanding 

 10  of it in his particular case. 

 11       Q.    And that's the only crime you know of 

 12  that he was convicted of?

 13       A.    In the end, that's the only crime he was 

 14  charged with, yes.  And that's why we took the case 

 15  up because we thought it was rather unfair that 

 16  someone would be locked away for five years for 

 17  something rather minor. 

 18       Q.    When you say you took the case up, what 

 19  does that mean?

 20       A.    As far as writing about it, as far as 

 21  following it and currently producing a documentary 

 22  on it. 

 23       Q.    Where did 2600 come from?

 24       A.    Do you mean the name? 

 25       Q.    Part of the name of The Hacker 

  1                  Goldstein

  2  Quarterly.

  3       A.    Well, 2600 is a frequency that if you go 

  4  back into history, back into the early 1960s, when 

  5  people first started exploring the phone network, 

  6  the sound of 2600 hertz tones would basically 

  7  disconnect whatever call you were connected to and 

  8  put you in what's known as operator mode, where you 

  9  could basically explore the entire phone network.  

 10  That was back in the day when there was just one 

 11  phone network run by AT&T.

 12       Q.    Could you then make calls without paying 

 13  for them?

 14       A.    That was one thing you could do.  But 

 15  you could also explore and talk to operators in 

 16  various places and just learn how the whole thing 

 17  was pieced together. 

 18             That's where the term "phone freaking" 

 19  was established.  That's where a lot of hackers 

 20  traced their roots to, just exploring one of the 

 21  first major computer systems in existence.

 22       Q.    And you adopted the 2600 as your 

 23  masthead, your banner?

 24       A.    Yes.  Well, the number had some 

 25  significance and it was rather an unusual name, so 

  1                  Goldstein

  2  it appealed to us. 

  3       Q.    Were you ever involved in any activity 

  4  in any way relating to abusing the phone system?

  5       A.    No.  

  6       Q.    Did you ever make phone calls without 

  7  paying for them?

  8       A.    No.  

  9             MR. GARBUS:  Note my objection to the 

 10       question and the previous question. 

 11       Q.    Have you ever been convicted of any 

 12  crime? 

 13             MR. GARBUS:  Objection.

 14       A.    I was -- I had gotten in trouble for 

 15  computer hacking in 1984, which was the first year 

 16  our magazine came out. 

 17             MR. GARBUS:  I object to the question.  

 18       I object to the entire line of inquiry.  I 

 19       think I will direct the witness not to 

 20       answer unless the judge rules.

 21             MR. GOLD:  On what ground? 

 22             MR. GARBUS:  I would ask you to go on, 

 23       and if you can get a ruling from the court 

 24       that is favorable to you, then he will 

 25       answer the question.  But I think it is 

  1                  Goldstein

  2       inappropriate. 

  3       Q.    When you used the word "in trouble," 

  4  sir, what did that mean to you? 

  5             MR. GARBUS:  I object to the question 

  6       and direct the witness not to answer until 

  7       such time as the court rules. 

  8       Q.    May I see that for a second, sir?

  9       A.    Sure. 

 10       Q.    Thank you.  Turning to page 6 of the 

 11  document, the right-hand column, about in the 

 12  middle of the paragraph, which is the last full 

 13  paragraph on the page, the following words are 

 14  written:  Quote, So under the DMCA it is illegal to 

 15  play your DVD on your computer if your computer 

 16  isn't licensed for it, close quote.

 17             MR. GARBUS:  Excuse me.  I don't see 

 18       where you are.

 19             MR. GOLD:  You don't see the language?

 20             MR. GARBUS:  Oh, I see.  I have it 

 21       now. 

 22       Q.    Is that true?

 23       A.    That's, um --

 24             MR. GARBUS:  I object to it.  It's a 

 25       legal conclusion.

  1                  Goldstein

  2       A.    That's my understanding.  I mean, I 

  3  wrote that piece, so....

  4       Q.    What is that, sir?

  5       A.    I wrote that piece, so that is my 

  6  understanding, yes.

  7       Q.    How did you come to that understanding? 

  8             MR. GARBUS:  I will object to it.  I 

  9       think I will direct the witness not to 

 10       answer.  It is a legal conclusion.  If the 

 11       judge directs him to answer, then he will 

 12       answer the question. 

 13       Q.    The next sentence, states, quote, "It's 

 14  illegal for you to figure out a way to play a 

 15  European DVD on your TV set."   Is that true? 

 16             MR. GARBUS:  I will object to the 

 17       question, direct the witness not to answer.  

 18       Calls for a conclusion of law.  If the judge 

 19       directs a journalist to answer about 

 20       something that he has written, then of 

 21       course he will answer it. 

 22       Q.    The last sentence says, "if you rent a 

 23  DVD" -- I think it says, "And if you rent a DVD 

 24  from your local video store, figuring out a way to 

 25  bypass the commercials in the beginning could land 

  1                  Goldstein

  2  you in court or even prison."  Is that true? 

  3             MR. GARBUS:  I direct the witness not 

  4       to answer.  It calls for a legal conclusion.  

  5       To the extent that it is based on 

  6       conversations with counsel, it comes within 

  7       the privilege.  If the judge decides that 

  8       the privilege doesn't apply or that he 

  9       should answer the question, then he 

 10       certainly will.

 11       Q.    I believe, Mr. Goldstein, that you wrote 

 12  this piece that we're now --

 13       A.    Yes.

 14       Q.    -- making some kind of fair use of?

 15       A.    Yes.  You can make copies of it.   

 16  That's perfectly OK.

 17       Q.    Thank you, sir.

 18       A.    Sure.  Now, if that was a DVD, you might 

 19  have some trouble.

 20       Q.    What's that, sir?

 21       A.    If that was a DVD it might be a 

 22  different story.

 23       Q.    Do you mean if anyone makes a copy of a 

 24  DVD he would violate the law? 

 25             MR. GARBUS:  I will object to the 

  1                  Goldstein

  2       question. 

  3       Q.    Do you believe that, sir? 

  4             MR. GARBUS:  I will object to the 

  5       question.  2600 wouldn't sue.  DVD might 

  6       sue.  MPA might sue.  It is not just a 

  7       question of the law.  I direct the witness 

  8       not to answer.

  9       Q.    At the end of that page, the following 

 10  is contained:  "The world the MPAA and 

 11  megacorporations want us to live in is a living 

 12  hell."   What do you mean by "living hell"?

 13       A.    Well, what we're going through right now 

 14  is kind of a living hell.  I see that happening to 

 15  a lot more people.

 16       Q.    So the only thing you meant by "living 

 17  hell" was that the MPAA would cause suits to be 

 18  brought against people it thought were violating 

 19  the law?

 20       A.    I believe Jack Valenti said they'd file 

 21  a thousand lawsuits a day if necessary. 

 22       Q.    Against people who violate the law?

 23       A.    Against people they feel like filing 

 24  suits against.

 25       Q.    Is that what he said or did you just 

  1                  Goldstein

  2  make that up?

  3       A.    Not the last part, but he did say a 

  4  thousand lawsuits a day.  That was accurate.

  5       Q.    Was he talking about law breakers? 

  6             MR. GARBUS:  I will object to it.

  7       Q.    Did you understand that he was talking 

  8  about law breakers?

  9       A.    I don't really know what he was talking 

 10  about to be honest.  He basically seemed to think 

 11  that lots of people are law breakers without really 

 12  describing how they broke the law.

 13             MR. GARBUS:  Can we take our morning 

 14       break now?  It's 11:30. 

 15             MR. GOLD:  Sure. 

 16             THE VIDEOGRAPHER:  The time is 11:22 

 17       a.m.  We're going off the record. 

 18             (A recess was taken.)

 19             THE VIDEOGRAPHER:  The time is 11:40 

 20       a.m.  We're back on record.

 21             MR. GARBUS:  I am going to withdraw my 

 22       objection to your question about the 1984 

 23       incident.  If you want to pursue it, you can 

 24       pursue it.  I don't think it is appropriate.  

 25       If you want to pursue it, I think you should 

  1                  Goldstein

  2       pursue it.  

  3  BY MR. GOLD: 

  4       Q.    You referred, I believe, to getting in 

  5  some trouble in 1984.

  6       A.    Yes. 

  7       Q.    What was that about?

  8       A.    It involved one of the first cases of 

  9  computer hacking.  Basically there was a system, 

 10  still is a system known as Telenet, where basically 

 11  it was protected with one-letter passwords, the 

 12  letter A.  And a lot of organizations were wide 

 13  open -- Raytheon, Coca-Cola, in fact, even the 

 14  Executive Office of the President. 

 15             And when they finally discovered that 

 16  their system was wide open, I basically came 

 17  forward and explained it to them.  I was indicted, 

 18  but I think I was dealt with fairly.  I paid 

 19  restitution and was on probation.  I never did it 

 20  again.  And from that point I've tried to set a 

 21  good example through the magazine.  So people don't 

 22  make that kind of mistake and so that they are 

 23  dealt with fairly if they do. 

 24       Q.    Did you plead guilty to some charge?

 25       A.    I believe back then it was wire fraud, 

  1                  Goldstein

  2  yeah.  It was -- basically I explained how the 

  3  system worked to them and I think they benefitted 

  4  from that. 

  5             MR. GARBUS:  You should know, 

  6       Mr. Gold, my understanding is the file was 

  7       sealed and that none of this is a matter of 

  8       public record.  I would expect you to treat 

  9       the record appropriately on your own motion. 

 10             MR. GOLD:  Certainly. 

 11             MR. GARBUS:  My understanding also is, 

 12       and I could be wrong, that he was given an 

 13       ACD, which is an adjournment in 

 14       contemplation of dismissal or the equivalent 

 15       of it.  So that the record was sealed and 

 16       charges against him were dismissed. 

 17             Now, I have not seen, because it's not 

 18       public knowledge, what the record is.  So 

 19       again, I would ask you to deal with this 

 20       transcript appropriately.  I didn't want to 

 21       get put into the position, Mr. Goldstein 

 22       didn't want to be put in the position of 

 23       having not to answer any question you  

 24       raised. 

 25             But the fact that the file is sealed 

  1                  Goldstein

  2       it seems to me is of significance. 

  3             MR. GOLD:  Just so that we understand, 

  4       I gather what you're asking me is to show 

  5       this only to other lawyers working on the 

  6       case and including lawyers at MPA working on 

  7       the case.

  8             MR. GARBUS:  No, I am asking you to 

  9       use your judgment as to how you deal with 

 10       this appropriately.

 11             MR. GOLD:  Well, let me tell you what 

 12       I think I am going to do, because we'll send 

 13       the transcript to lawyers for the companies, 

 14       to lawyers for the MPA, and to lawyers here, 

 15       and we'll use it in court. 

 16             Is there anything about that that you 

 17       find inappropriate so I can consider it? 

 18             MR. GARBUS:  I will take it under 

 19       advisement. 

 20             MR. HERNSTADT:  We'll designate it in 

 21       the ordinary course.

 22             MR. GOLD:  Just tell me what you mean 

 23       and what you want and if it doesn't block me 

 24       from what I am doing, that's what I will do, 

 25       is all I am asking.  I have no interest in 

  1                  Goldstein

  2       anything else but this case, and ....

  3  BY MR. GOLD: 

  4       Q.    When you use the word "hacking," what 

  5  does that mean?  As you use it, sir.

  6       A.    My definition of hacking is basically a 

  7  form of asking a lot of questions, experimenting 

  8  with technology, basically twiddling with something 

  9  till you get it to work just right.  Hacking can 

 10  encompass any number of things, things that are in 

 11  your own house, things that you encounter on a 

 12  day-to-day basis. 

 13       Q.    So it doesn't necessarily involve 

 14  breaking into somebody else's computer system?

 15       A.    Not at all.  That's a media definition.  

 16  That's how the media has distorted the word over 

 17  the past decade or so.  But the real world of 

 18  hacking, I think if you go through our pages you 

 19  will see that it encompasses quite a bit more.  Not 

 20  just things like that.

 21       Q.    What would it include, if you can give 

 22  us an example?

 23       A.    For instance, your own computer, there's 

 24  a world of things you can hack in your own 

 25  computer.  Your own telephone, there's ways of 

  1                  Goldstein

  2  figuring out how to dial certain things.  You know, 

  3  only simpleminded people think it's just to get a 

  4  free phone call. 

  5             No, there are things hidden within the 

  6  switch.  For instance, there is a number you dial 

  7  to read back your phone number.  And it's always 

  8  considered a triumph when you figure out what that 

  9  number is. 

 10             To most people hacking is a big waste of 

 11  time because there is no immediate payoff.  That's 

 12  something only people who are hackers understand, 

 13  the thrill of figuring something out. 

 14             I should say also a lot of journalists 

 15  have the same thrill, when they figure something 

 16  out, when they chase down a source or uncover 

 17  something no one else has uncovered.  So I think 

 18  the two are very tightly combined.  The fact that 

 19  I'm both a hacker and a journalist, you know, 

 20  there's a lot to talk about.

 21       Q.    Is the next chapter a regular piece in 

 22  all issues of 2600?

 23       A.    You mean our editorial.

 24       Q.    Is that your editorial?

 25       A.    Yes.  The editorial is always the first 

  1                  Goldstein

  2  thing that appears after the staff box.

  3       Q.    And you write all of the editorials?

  4       A.    Yes, I write the editorial.

  5       Q.    Do I take it as far as you know all 

  6  statements made in your editorials are true?

  7             MR. GARBUS:  I will object to that.

  8       A.    It's my opinion. 

  9       Q.    Based on your information and belief?

 10       A.    Based on my opinion as journalist what I 

 11  say is true.

 12             MR. GARBUS:  When a journalist calls 

 13       Bush a crook or a journalist says that 

 14       Clinton is a felon, it doesn't necessarily 

 15       mean he has been adjudicated a crook or 

 16       adjudicated a felon. 

 17             MR. GOLD:  That was very interesting, 

 18       Mr. Gorbus.

 19             MR. GARBUS:  The name is Garbus.  You 

 20       said Gorbus.  Garbus. 

 21             MR. GOLD:  I said what?  But if I can, 

 22       Mr. Garbus, may I just on this record ask 

 23       questions to your witness and have him 

 24       answer it and have you withhold all of your 

 25       learning about whatever it is?

  1                  Goldstein

  2       Q.    Is it your belief that journalists have 

  3  any special exemptions from the law that applies to 

  4  everyone else?

  5       A.    No.  

  6       Q.    Can I see that?

  7       A.    Sure. 

  8       Q.    Thank you, sir.  Reading a sentence at 

  9  page 6, right-hand side, it's in the second full 

 10  paragraph.  The second sentence says, referring 

 11  to -- well, the paragraph begins, "The MPAA is 

 12  coming at us using a very scary piece of law that 

 13  civil libertarians have been wanting to challenge 

 14  since its inception." 

 15             Do you see that? 

 16       A.    Yes. 

 17       Q.    What is it that you mean when you say 

 18  civil libertarians have been wanting to challenge?  

 19  What is it they have been wanting to challenge?

 20             MR. GARBUS:  I object.  It says what 

 21       it says.  He is not an interpreter.  He 

 22       wrote it. 

 23             Go ahead.  Answer the question.

 24       A.    Basically it's the Digital Millennium 

 25  Copyright Act that people such as civil 

  1                  Goldstein

  2  libertarians in the Electronic Frontier Foundation 

  3  as well as the ACLU have been wanting to challenge 

  4  and I believe now they are challenging it because -- 

  5  I am not a lawyer, but as a journalist I see 

  6  problems with the way it's written and with 

  7  basically ways it can be abused. 

  8       Q.    What are the problems that you see?

  9       A.    Well, for instance, this whole thing 

 10  here is based on an interpretation of the DMCA, 

 11  which I don't think was the intention of the people 

 12  who wrote the DMCA.

 13       Q.    Which part of it?

 14       A.    Basically that would make someone 

 15  subject to lawsuits if they figure out how 

 16  something works.  You know, it seems to me to be 

 17  something that's a pretty ingrained part of our 

 18  society where you're allowed to talk about things, 

 19  figure things out, spread information.  We know 

 20  theft is wrong.  We know taking something that 

 21  doesn't belong to you is wrong or misrepresenting 

 22  yourself is wrong. 

 23             But that's not what this is about.  This 

 24  is about figuring out how technology works and 

 25  being told that that's wrong, and that's where I 

  1                  Goldstein

  2  have a problem with it.  But again, I have to 

  3  stress, I am not a lawyer.  I am speaking as a 

  4  journalist.  That's my opinion on it.

  5       Q.    Are you involved in figuring out what 

  6  DeCSS means?

  7       A.    Well, in addition to not being a lawyer, 

  8  I am also not an engineer. 

  9             MR. GARBUS:  Object to the form of the 

 10       question.

 11       A.    I know many people who are engineers and 

 12  I respect what they do, and I believe I defend what 

 13  they do in my pages.

 14       Q.    Who is it by name, if you can, if you 

 15  know who is trying to figure out what DeCSS means?

 16       A.    Do you mean who is trying to --

 17             MR. GARBUS:  I object to form of the 

 18       question.  I also object to all these 

 19       questions that call for his legal 

 20       conclusion.  The witness is stating his 

 21       opinion as a journalist and not his position 

 22       in the lawsuit.

 23             MR. GOLD:  Oh, I thought you said 

 24       physician. 

 25       A.    Do you mean who is trying to figure 

  1                  Goldstein

  2  out CSS?  Because DeCSS is --

  3       Q.    Who is trying to figure out CSS?  Thank 

  4  you.  You're right.

  5       A.    A lot of people.  I mean, like I 

  6  mentioned the people in the Linux world.  People 

  7  in -- I believe in the Livid project as well, 

  8  although they were basically trying to create a 

  9  Linux player.  A lot of people have gotten very 

 10  interested in how encryption works over the years.  

 11             Encryption is a very important thing.  

 12  It's our key to privacy.  It's traditional in the 

 13  hacker world when encryption goes back, you tell 

 14  people about it.  Because that way the next bit of 

 15  encryption is a lot more secure. 

 16             I think also what you're seeing here, a 

 17  lot of people think it would be wrong not to tell 

 18  people when encryption doesn't work, as is the case 

 19  with CSS.

 20       Q.    In the last answer that you gave, when 

 21  you used the word, quote, a lot of people, what did 

 22  you mean?

 23       A.    A lot of people in the community, in the 

 24  Linux community.  People on public forums such as 

 25  Slash Dot.  Basically people on the Net who know 

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  2  what they are talking about.  People who run 

  3  businesses, people who are engineers, scientists, 

  4  you name it.

  5       Q.    Do you know how many?

  6       A.    Thousands.

  7       Q.    How do you know that?

  8       A.    I see The Post.  You know, we -- we talk 

  9  to these people at meetings, at conferences.  It's 

 10  a lot of people.  And also a lot of people who 

 11  don't have knowledge that understand the 

 12  journalistic implications here. 

 13             So it's really helped us reach out to a 

 14  lot of people.

 15       Q.    In the second sentence of the same 

 16  paragraph you wrote the following:  "It's called 

 17  the Digital Millennium Copyright Act and it 

 18  basically makes it illegal to reverse engineer 

 19  technology." 

 20             Is that your understanding?

 21       A.    That's my understanding based on this 

 22  lawsuit.

 23       Q.    You think that's what this lawsuit is 

 24  about?

 25       A.    It appears that way to me.  Because 

  1                  Goldstein

  2  DeCSS was written for reverse engineering purposes.  

  3  So if that's found to be illegal then under the 

  4  DMCA.

  5       Q.    The next sentence says, "this means 

  6  you're not allowed to take things apart and figure 

  7  out how they work if the corporate entities 

  8  involved don't want you to."

  9             Is that true?

 10       A.    That's based on my previous thought, 

 11  that if that is in fact proven to be the case, then 

 12  yes, that's how it will be decided.

 13       Q.    And that's what this lawsuit is about as 

 14  far as you know?

 15       A.    That's what it looks like to me, yes.

 16       Q.    Are there monthly 2600 meetings?

 17       A.    Yes.  We meet on the first Friday of 

 18  every month in cities.  In fact, if you look on 

 19  page 58, it's a list of all the cities we have 

 20  meetings in around the world. 

 21       Q.    When say "we," who are you talking 

 22  about?

 23       A.    2600, the magazine, a very loosely based 

 24  group of people that have similar ideologies on 

 25  things. 

  1                  Goldstein

  2       Q.    These meetings are held where?

  3       A.    Various public gathering places.  For 

  4  instance, in New York, in the lobby of Citicorp. 

  5       Q.    Who comes to them?  Subscribers to 2600?

  6       A.    Everyone is welcome.  Basically 

  7  subscribers, passersby, businessmen, kids, 

  8  governmental agents.  You name it.  We get all 

  9  kinds of people.

 10       Q.    Are any minutes taken of these meetings?

 11       A.    No, perhaps "meeting" is the wrong word 

 12  in this context.  "Gathering" is probably a better 

 13  word for your understanding. 

 14             There is no agenda.  There is no one 

 15  person speaking to everybody.  It is kind of -- we 

 16  think of it as kind of similar to what the Internet 

 17  world is like where everybody has an equal voice, 

 18  you talk to whoever you want to talk to.  If you 

 19  want to be anonymous, you be anonymous. 

 20             But basically, we respect each other.  

 21  We don't break any laws.   We basically exchange 

 22  information, talk, learn about things.  We have 

 23  been having meetings since 1987.

 24       Q.    Would it be correct to say that 

 25  everybody comes to one place and sort of hangs?  Is 

  1                  Goldstein

  2  that what you mean?

  3       A.    Pretty much, yeah.

  4       Q.    No speeches.

  5       A.    No.  Not that I know of, anyway.

  6       Q.    What reverse engineering purposes was 

  7  DeCSS written for?

  8       A.    By reverse engineering CSS it became 

  9  possible to make DVDs playable on other operating 

 10  systems besides Microsoft, McIntosh, both for 

 11  operating systems like Linux and future operating 

 12  systems that have not yet been written and may not 

 13  have ever been written.  Because if your operating 

 14  system can't do something basic like play a DVD, 

 15  it's not going to be very popular. 

 16       Q.    How was CSS cracked?

 17       A.    Again, I am not an engineer.  My 

 18  understanding is that one of the companies that was 

 19  licensed was -- hadn't encrypted their copy of CSS, 

 20  which made it possible to reverse engineer it based 

 21  on that.  So it was basically their 

 22  irresponsibility that led to this. 

 23       Q.    So is it true the fact that it was 

 24  cracked didn't relate to how strong or weak it was?

 25       A.    It still had to be figured out after 

  1                  Goldstein

  2  that.  It was -- it probably made it easier the 

  3  fact that they didn't encrypt their copy of it. 

  4             But there's -- our basic view is that 

  5  any form of encryption will be eventually cracked 

  6  and you have to live your life realizing that and 

  7  always be prepared to improve your encryption.

  8       Q.    Is that why you say that CSS was a weak 

  9  system? 

 10             MR. GARBUS:  Objection.  That's not 

 11       what he said. 

 12       A.    That's not --

 13       Q.    I asked you a question.

 14       A.    That's not why I say that it's -- I 

 15  believe CSS was weak based on what I was told by 

 16  engineers.  But I think it would have been -- it 

 17  would have been cracked whether or not that company 

 18  had an unencrypted copy or not.

 19       Q.    It would have been cracked sooner or 

 20  later.

 21       A.    Sooner or later, yes, as any encryption 

 22  will be.

 23       Q.    How long had CSS existed before one of 

 24  its users didn't encrypt a DVD with it?

 25             MR. GARBUS:  Object to the form of the 

  1                  Goldstein

  2       question.  He already testified in '97.  But 

  3       your question is a bad question.  With all 

  4       due respect, Mr. Gold, I don't think you 

  5       understand the technology.

  6             MR. GOLD:  Who cares what you think?  

  7       Don't be impolite.  I find it very 

  8       offensive. 

  9             I'll take a test with you sometime 

 10       after the case is over.  Is that the sort of 

 11       competition you have in mind? 

 12             MR. GARBUS:  Go ahead.

 13             THE WITNESS:  Maybe you can read back 

 14       the question.  I got distracted.

 15             (A portion of the record was read.)

 16       A.    CSS existed ever since DVDs were 

 17  released, to my understanding.

 18       Q.    Approximately how long?

 19       A.    I would say DVDs were probably released 

 20  I think probably around '95/'96.  Again, I am not 

 21  entirely certain about this.  But -- and also, I'm 

 22  presuming that the company -- I believe its name is 

 23  Xing, X-i-n-g, hadn't been encrypting all along, so 

 24  that may or may not be true, but that's my 

 25  understanding.

  1                  Goldstein

  2       Q.    So CSS was out there for four to five 

  3  years before it was cracked?

  4       A.    It may have been.  Again, this is not 

  5  something that I am an expert in.  They may have 

  6  been a fairly new company that had just started 

  7  using it and maybe they were only doing it for six 

  8  months.  I don't know the facts in this.

  9       Q.    Is the fact that CSS was being used for 

 10  four to five years and then it was cracked in the 

 11  way that you've described, a reason why you say 

 12  that CSS is weak or was weak? 

 13             MR. GARBUS:  I object to it.  That's 

 14       not what he said. 

 15             MR. GOLD:  That's why I asked him is 

 16       that true.

 17             MR. GARBUS:  You're misstating the 

 18       witness's testimony.

 19             MR. GOLD:  Would you read the question 

 20       back to the witness. 

 21             (A portion of the record was read.)

 22       A.    I am not certain it was being used 

 23  that long.  And I am also not certain how long it 

 24  existed in an insecure state so that it could be 

 25  cracked quicker.  I also don't know how long people 

  1                  Goldstein

  2  were actively trying to do this. 

  3             While DVDs were released several years 

  4  ago, DVDs on computers are a fairly new phenomenon.  

  5  So I don't think very many people in the Linux 

  6  community would be trying four years ago to crack 

  7  this.  I think once they set their minds to the, it 

  8  wasn't very difficult. 

  9       Q.    But they didn't do it without someone 

 10  failing to encrypt.

 11       A.    That helped.  I don't think it would 

 12  have prevented things in the end.

 13       Q.    What do you mean by, quote, in the end?

 14       A.    I think it would have been -- one thing, 

 15  the encryption was developed in a closed 

 16  environment.  If you want good encryption you 

 17  develop it in an open environment so people can 

 18  test it before it actually goes on the market. 

 19             CSS was developed so that nobody really 

 20  knew the equation, and thus they didn't have a 

 21  chance to really test it amongst the people who 

 22  would figure it out.  So I think that was a big 

 23  disadvantage that they had, and that's something 

 24  the open source community has always supported is 

 25  openly developing these things.  So ironically they 

  1                  Goldstein

  2  would have had a more secure encryption standard 

  3  had they consulted with these people.

  4             MR. HERNSTADT:  Off the record. 

  5             (Discussion off the record.)

  6             MR. GOLD:  I would like to have this 

  7       marked as Plaintiffs' Exhibit 3.

  8             (Plaintiffs' Exhibit 3, document 

  9       headed "2600/News Archive, Page 1 of 2," 

 10       marked for identification, as of this date.)

 11       Q.    Is this a news story you wrote and put 

 12  on the 2600 web site?

 13       A.    Just trying to determine if this is one 

 14  of the ones I wrote.  I definitely approved it and 

 15  put it on the 2600 web site.

 16       Q.    Well, take your time and read it and see 

 17  if you wrote it.  

 18             MR. GOLD:  I don't think it's 

 19       appropriate to talk to the witness, 

 20       Mr. Garbus, in between a question and an 

 21       answer.  

 22       A.    I believe this was one of Macki's.  It's 

 23  based on the phraseology.

 24       Q.    Who is Macki?

 25       A.    Macki is our webmaster.  But I read this 

  1                  Goldstein

  2  and approved it.

  3       Q.    Did you believe it true when you read 

  4  it?

  5       A.    I believed it true when I read it, yes.  

  6  There are a couple of technical issues here that 

  7  have since been proven to be inaccurate.  I think 

  8  that goes to show that even we didn't have a 

  9  complete understanding of the technology at the 

 10  time.

 11       Q.    What in this article do you now believe 

 12  was incorrect?

 13       A.    There is one part here, I think it's the 

 14  third paragraph down, under the date, where it says 

 15  that this facilitated the copying of DVDs. 

 16             Again, it's the nature of the Net, when 

 17  something is released, that people don't always 

 18  have the complete facts.  And when we researched 

 19  this more afterwards, and you will find this in 

 20  later news articles, we realized that it was not 

 21  about copying DVDs.  We were kind of taken in at 

 22  the beginning too.  It's not about that at all.

 23       Q.    What sentence were you reading from?

 24       A.    I am reading the first sentence in the 

 25  third paragraph.

  1                  Goldstein

  2       Q.    "As a result they were able to create 

  3  DeCSS --

  4       A.    Yes. 

  5       Q.    "-- a free DVD decoder, that not only 

  6  facilitated the creation of previously unavailable 

  7  open source DVD players for Linux -- also allowed 

  8  people to copies DVDs." 

  9             Are you now saying that any part of that 

 10  sentence is incorrect?

 11       A.    The last part of that sentence is 

 12  incorrect, because as we --

 13       Q.    Which part?  Do you mean the "also 

 14  allowed people to copy"?

 15       A.    Yes.

 16       Q.    Is it a fact that the free DVD decoder 

 17  that you talked about at the beginning of the 

 18  paragraph in fact did allow people to copy DVDs?

 19       A.    No, the fact is that DVDs have always 

 20  been able to be copied.  The only thing that DeCSS 

 21  does is allow them to be played on a different 

 22  platform. 

 23       Q.    And it's your testimony that DeCSS does 

 24  not decrypt?

 25       A.    DeCSS does decrypt.  It does not make it 

  1                  Goldstein

  2  any easier to copy.  It allows you to be able to 

  3  view it on the platform of your choice.

  4       Q.    When you decrypt DVD is a copy made on 

  5  your hard drive?

  6       A.    I have never used the program.

  7       Q.    So you don't know.

  8       A.    I don't know if a copy is made on your 

  9  computer.  I don't know anybody with the size of a 

 10  computer that would be able to hold an entire DVD.  

 11  It's an incredible --

 12       Q.    So what you're saying is you don't know 

 13  whether or not a copy of the DVD is made when you 

 14  decrypt it on your hard drive.

 15       A.    I don't know for sure.  I think it is 

 16  irrelevant because --

 17       Q.    Before we get to the irrelevant part, 

 18  how can you say that no copies are made unless you 

 19  know that DeCSS does not put a copy on your hard 

 20  drive when you decrypt it? 

 21             MR. GARBUS:  I object to the form of 

 22       the question.  You're misstating the 

 23       witness's testimony.  You are not 

 24       understanding the technology.  I will allow 

 25       the witness to answer the question if he 

  1                  Goldstein

  2       can.

  3       A.    I will try to explain this.  Basically 

  4  copying of DVDs has been going on since virtually 

  5  day one.  When you copy a DVD, you're copying 

  6  something that's encrypted, and as long as you have 

  7  a player, the player doesn't care if it's a copy or 

  8  if it's the original. 

  9             Whether or not you copy something that 

 10  is unencrypted on to your hard drive or encrypted, 

 11  it doesn't make any difference.  If DeCSS allowed 

 12  you to copy the unencrypted file on to your hard 

 13  drive, it's no different than copying the encrypted 

 14  file on to your hard drive, because what CSS did 

 15  was decrypt that.  All you needed was a valid 

 16  player and that would allow you to view an 

 17  encrypted file. 

 18             So again, I am not -- I have never used 

 19  it.  I don't know anybody who has used it.  I don't 

 20  know anybody who would have the hard drive space to 

 21  hold an entire DVD.  But even if it was possible, 

 22  and I stress "if," it wouldn't make a difference 

 23  because you can still play an encrypted DVD using a 

 24  valid CSS player as has been done for years.

 25       Q.    But you've got to first decrypt the DVD.

  1                  Goldstein

  2       A.    CSS decrypts the DVD.

  3       Q.    Do you believe that that's true?

  4       A.    Yes, that's the purpose of it.  It's in 

  5  every DVD player, whether it's on an operating 

  6  system, whether it's a stand alone unit, the copy 

  7  of CSS that's in there is what decrypts the DVD. 

  8             And that's why I say that if you make a 

  9  bit by bit copy of an illegal DVD like, say, from 

 10  Asia or something like that, as has been done for 

 11  years, it's not going to know the difference.  It 

 12  will see the encryption and decrypt it whether it's 

 13  a copy or the original. 

 14             And that's why I say it's irrelevant 

 15  whether or not -- whether or not you have an 

 16  unencrypted copy on your hard drive, because you 

 17  can still just as easily, even easier in fact, 

 18  decrypt an encrypted copy. 

 19       Q.    So then I take it you don't know one way 

 20  or the other whether when you decrypt a DVD a copy 

 21  is put on the hard drive. 

 22       A.    I don't know since I have never done it. 

 23       Q.    Now, at the end of that same paragraph 

 24  there's a reference to, quote, antiquated 

 25  encryption export laws, close quote.

  1                  Goldstein

  2             What does that mean?

  3       A.    I believe that refers to the fact that 

  4  there are strict limitations on encryption that we 

  5  export from this country, and because DVDs are 

  6  exported overseas, an artificially weak encryption 

  7  was used.

  8       Q.    Because of this law?

  9       A.    Because of a law.  I am not sure which 

 10  law it is, that considers encryption an armament 

 11  and basically forced them to encrypt in a rather 

 12  weak state.  Something I don't think anybody who 

 13  knew what they were doing would be happy with.  And 

 14  that of course led to it being cracked a lot 

 15  earlier.

 16       Q.    On the same document, sir, the last 

 17  sentence on page 1, begins, quote, That is why we 

 18  feel it's necessary to preserve this information, 

 19  period.  We do feel sympathy for the DVD industry 

 20  now that their encryption has been cracked.  

 21  Perhaps they will learn from this, close quote.

 22             What learning did you have in mind?

 23       A.    Well, it was our hope that they would go 

 24  on and come up with a better way of encrypting DVDs 

 25  and learn from the mistakes they made and not 

  1                  Goldstein

  2  continue to go after people.  And though I should 

  3  stress that this article is before any papers were 

  4  filed against us.  Obviously they didn't follow 

  5  that. 

  6       Q.    So do you feel or do you believe that  

  7  part of the use of DeCSS is to teach the movie 

  8  companies that they have got to make tougher 

  9  protective devices around their copyrighted work? 

 10             MR. GARBUS:  I object to the form of 

 11       the question.

 12       A.    I don't think anyone went out and said 

 13  let's teach them a lesson.  I think basically this 

 14  is something that happened in the natural course of 

 15  things, and I think it's an opportunity to learn 

 16  that's being wasted.

 17       Q.    Is the export law you talked about in 

 18  the preceding paragraph still in effect?

 19             MR. GARBUS:  I will object to....

 20       A.    Again, I didn't write this article and I 

 21  am not an expert on law, but I do recall hearing 

 22  sometime in the recent past that Clinton relaxed 

 23  some export regulations.

 24       Q.    And that may or may not be one of them.

 25       A.    It might be. 

  1                  Goldstein

  2       Q.    I see. 

  3             Do you consider yourself a hacker?

  4       A.    Yes. 

  5       Q.    Did you or any other hacker you know --

  6             MR. GARBUS:  I object to the question.  

  7       The way he defines hacker.

  8       A.    The way I define hacker obviously.

  9             MR. GARBUS:  In other words, the way 

 10       he's defined hacker he considers himself a 

 11       hacker.

 12             MR. GOLD:  Which shows that you were 

 13       listening.

 14       Q.    Did you or any other hacker contact the 

 15  movie industry or Matsushita for the DVD CCA to 

 16  discuss the findings of the DeCSS creators?

 17             MR. GARBUS:  I object to the form of 

 18       the question. 

 19       Q.    The question was did you or any other 

 20  hacker you know of contact the movie industry or 

 21  Matsushita or the DVD CCA to discuss the findings 

 22  of the DeCSS creators?

 23             MR. GARBUS:  I object to the form of 

 24       the question.  If the witness can answer I 

 25       will let him answer.

  1                  Goldstein

  2       A.    Back when this happened, which was early 

  3  November of 1999, I had never even heard of the DVD 

  4  CCA, so contacting them wouldn't have even come to 

  5  mind. 

  6             We were reporting this as journalists.   

  7  We were reporting facts.  The facts were this was -- 

  8  this happened, this was cracked.  And that's what 

  9  we printed on our pages, that it was cracked. 

 10       Q.    But if a purpose of the cracking was to 

 11  teach them that they had to make a stronger 

 12  protective mechanism to protect their copyrighted 

 13  work, why wouldn't you or someone else involved 

 14  with DeCSS call them and tell them that?

 15       A.    I imagine they were contacted.

 16             MR. GARBUS:  I will object to the form 

 17       of the question.  The New York Times printed 

 18       it.  The San Jose Mercury News printed it.  

 19       To my knowledge no newspaper reported it.   

 20       That's not his function.  Object to the form 

 21       of the question. 

 22             MR. GOLD:  Read the question and let 

 23       the witness answer it. 

 24             (A portion of the record was read.)

 25       A.    I believe I said I mentioned they were 

  1                  Goldstein

  2  contacted at the time. 

  3       Q.    By whom?

  4       A.    By, well, at this point it was pretty 

  5  widely reported throughout the Internet.  So for 

  6  them not to know about it I think would be very 

  7  unusual. 

  8             Again, we were reporting something that 

  9  happened.  It wasn't our place to go around and 

 10  make sure that everybody knew about it.  It was a 

 11  fact.  We were reporting it.  We weren't involved 

 12  at that point.  It was just something interesting 

 13  that we were following. 

 14       Q.    At the beginning of the deposition or 

 15  maybe before it started I asked you which name that 

 16  you would be comfortable that I used, and I think 

 17  you told me Emmanuel Goldstein.

 18       A.    As you said, either name is fine.  

 19  Emmanuel is the name I am known by by most people.

 20       Q.    What is your legal name? 

 21       A.    Eric Corley is what I was born with. 

 22       Q.    And you never officially changed it. 

 23       A.    No, that's still my legal name.

 24             MR. GOLD:  I gather there is no 

 25       objection here with respect to the fact that 

  1                  Goldstein

  2       he wasn't sworn as Mr. Corley.  He was sworn 

  3       as Mr. Goldstein.

  4             MR. GARBUS:  That's fine.  

  5       Q.    Were you raised in New York?

  6       A.    Yes.

  7       Q.    Which high school did you go to?

  8       A.    Ward Melville High School in East 

  9  Setauket, New York.

 10       Q.    Did you attend college?

 11       A.    Yes, State University of New York at 

 12  Stony Brook.

 13       Q.    What did you major in?

 14       A.    I was an English major.

 15       Q.    Did you attend school after you 

 16  graduated?

 17       A.    No, I did not.

 18       Q.    Did you graduate?

 19       A.    Yes. 

 20       Q.    Did there come a time you began working?

 21       A.    Yes, I worked in numerous capacities for 

 22  newspapers and....

 23       Q.    Which newspapers, and to the best you 

 24  can, what dates?

 25       A.    Well, I worked for a newspaper on campus 

  1                  Goldstein

  2  known as the Stony Brook Press both as an unpaid 

  3  writer and a paid typesetter, and then I continued 

  4  working as a typesetter for a local community paper 

  5  known as the Village Times.  And that's when I 

  6  began publishing my own publication as well. 

  7             And the rest is pretty much history. 

  8       Q.    Do you receive remuneration from 2600?

  9       A.    Yes, that's my full-time job now.

 10       Q.    Is that your sole source of 

 11  remuneration?

 12       A.    Right now, yes. 

 13       Q.    Is it correct that the Village Times and 

 14  then your own publication are the two jobs you had 

 15  since graduating?

 16       A.    Going back a long ways, so -- I believe 

 17  so.  I believe that's where I was working right 

 18  after graduation.  I mean, I had part-time jobs 

 19  before then, but as far as I know, that's -- yeah, 

 20  that's what I had afterwards. 

 21       Q.    And your home address is what?

 22       A.    7 Strongs Lane.  That's S-t-r-o-n-g-s.  

 23  Also Setauket. 

 24       Q.    And I gather your business address is in 

 25  the magazine somewhere?

  1                  Goldstein

  2       A.    Yes.

  3       Q.    In this 2600 Hack Reporter?

  4       A.    Yes, on page 3, I think.

  5       Q.    When was 2600 Enterprises Inc. 

  6  incorporated?

  7       A.    To the best of my recollection, in 1984.  

  8  I don't have the specific date.

  9       Q.    And it was incorporated in New York?

 10       A.    In New York, yes.

 11       Q.    Who are its directors at present?

 12       A.    I am the sole provider. 

 13       Q.    There is no board of directors?

 14       A.    No, there is none. 

 15       Q.    Are you the only officer?

 16       A.    Yes. 

 17       Q.    Does 2600 Enterprises Inc. have any 

 18  employees?

 19       A.    We have an office, an office person who 

 20  enters subscriptions.  And anything else is 

 21  strictly on a per job basis such as if we hire an 

 22  artist to design a T-shirt, if we pay a printer to 

 23  print the magazine. 

 24       Q.    Have you had the same printer for 

 25  several years?

  1                  Goldstein

  2       A.    Yes. 

  3       Q.    Who is that?

  4       A.    Portside Graphics in Port Jefferson, 

  5  New York. 

  6       Q.    What is the name of your office person?

  7       A.    Her name is Mary, last name Nixdorf, 

  8  N-i-x-d-o-r-f. 

  9       Q.    Does 2600 have any function other than  

 10  issuing 2600, The Hacker Quarterly?

 11       A.    We publish a magazine.  That's what we 

 12  do.  Things happen along the way, such as having 

 13  2600 meetings, but the magazine is really what we 

 14  do. 

 15             Even the web site is something that just 

 16  evolved.  As a result, we make no money off the web 

 17  site.  It's just a project that a bunch of people 

 18  engage in because they want to become involved in 

 19  that part of technology. 

 20       Q.    Are there other web sites around the 

 21  country that are affiliated with you?

 22       A.    The only web site affiliated with us is 

 23  our web site and one for the upcoming conference 

 24  known as h2k.net.  It is on the same machine.  So 

 25  it's really the same thing. 

  1                  Goldstein

  2       Q.    Is The Hacker Quarterly put in its 

  3  entirety on your web site?

  4       A.    No.  The web site is a supplement of the 

  5  magazine.  It's not a duplication of the magazine. 

  6       Q.    Each quarter do you put selected 

  7  portions of The Hacker Quarterly on your web site?

  8       A.    I would like to, but unfortunately we 

  9  don't have the staff to sit around scanning and 

 10  posting.  So right now, no.  We would like to in 

 11  the future.

 12       Q.    So is it rare that you ever put anything 

 13  that's in The Hacker Quarterly on your web site? 

 14             MR. GARBUS:  Object to the use of the 

 15       word "rare."

 16       A.    I don't think we ever duplicate anything 

 17  other than the covers on the web site.  Not to my 

 18  recollection. 

 19       Q.    Except in this lawsuit, have you or 2600 

 20  ever been accused of violating anyone's rights in 

 21  connection with a hack or in connection with the 

 22  material that you published?  Other than this 1984 

 23  thing that you testified. 

 24       A.    Do you mean have we gotten letters 

 25  saying that -- threatening letters from lawyers or 

  1                  Goldstein

  2  have we actually been brought up on charges? 

  3       Q.    Have you actually been brought up on 

  4  charges?

  5       A.    No.

  6       Q.    Have you gotten threatening letters from 

  7  lawyers?

  8       A.    We have gotten a few on occasion.

  9       Q.    How did you get them?

 10       A.    They were sent to us in the mail.

 11       Q.    Do they exist now?

 12       A.    I am not sure what you mean, do they 

 13  exist now? 

 14       Q.    Do the letters exist now?

 15       A.    They might be filed someplace.  I don't 

 16  think I could ever find them.  We usually print 

 17  them.  So you can find them in the magazine.  But 

 18  nothing up until this point has ever gotten past 

 19  the first step of a nasty letter being sent. 

 20       Q.    How many issues of this magazine have 

 21  been published?

 22       A.    Well, we have been coming out for I 

 23  guess eighteen years -- well, no.  This is Volume 

 24  17.  So seventeen years.  So --

 25       Q.    Seventeen times four would be the 

  1                  Goldstein

  2  answer?

  3       A.    We have been quarterly since 1988.  

  4  Before then we were monthly.  So you'll need a 

  5  calculator. 

  6       Q.    And is it your testimony that you 

  7  published all these threatening letters from 

  8  lawyers in one of these issues?

  9       A.    If we got a letter that was -- we 

 10  thought was particularly unjust, yes, it's been our 

 11  policy to show people the kinds of threats that are 

 12  being made against us.

 13  RQ         MR. GOLD:  I am going to ask for copies 

 14       of all back issues of 2600 and any of the 

 15       lawyer letters that Mr. Goldstein might have 

 16       around his office or in his files.

 17             MR. GARBUS:  I will see what we have. 

 18             MR. HERNSTADT:  Can I just clarify?  

 19       Do you want all back issues that have lawyer 

 20       letters published? 

 21             MR. GOLD:  No.  

 22             MR. GARBUS:  He wants all back issues 

 23       and any letters that we have. 

 24             Is that right, Mr. Gold? 

 25             MR. GOLD:  That's right. 

  1                  Goldstein

  2             MR. HERNSTADT:  We'll take it under 

  3       advisement.

  4             MR. GOLD:  Can I have this marked as 

  5       Exhibit 4.

  6             (Plaintiffs' Exhibit 4, copy of 

  7       plaintiffs' first request for production of 

  8       documents, marked for identification, as of 

  9       this date.)

 10             MR. GOLD:  You can take a minute to 

 11       look through that.  I guess we'll change the 

 12       tape while he is looking. 

 13             MR. GARBUS:  Mr. Gold, I don't know 

 14       your schedule.  As I said, we would be 

 15       prepared to work through lunch.  Because I 

 16       know you want to finish the deposition.   We 

 17       would also be prepared working till 5.  

 18       Again, subject to your convenience.  Or even 

 19       work later in the evening to try and give 

 20       you as much as you can get.

 21             MR. GOLD:  As you know, we have 

 22       advised you that the deposition would be 

 23       today and tomorrow.  I think we'll finish 

 24       tomorrow.  I doubt we'll finish today and I 

 25       do feel that the judge having called a 

  1                  Goldstein

  2       conference and been kind enough to put it at 

  3       the end of the day that I should attend it, 

  4       since I have been involved in writing a few 

  5       letters to him.  And I think the judge might 

  6       be interested in talking about one or more 

  7       of them.  I think it would be improper for 

  8       me not to be there.

  9             MR. GARBUS:  Do you want to have 

 10       somebody else take over the deposition?

 11             MR. GOLD:  No, I will stick with what 

 12       I noticed for today and tomorrow and trust 

 13       that I'll finish tomorrow. 

 14             THE VIDEOGRAPHER:  The time is 12:28 

 15       p.m.  This completes tape number 1 of the 

 16       videotape deposition of Mr. Emmanuel 

 17       Goldstein. 

 18             (A recess was taken.)

 19             THE VIDEOGRAPHER:  The 12:34 p.m.  

 20       This begins tape number 2 of the videotape 

 21       deposition of Mr. Emmanuel Goldstein.

 22             (Mr. Hernstadt not present.) 

 23  BY MR. GOLD: 

 24       Q.    Mr. Goldstein, have you seen the 

 25  document just put before you before today?

  1                  Goldstein

  2       A.    Yes, I have.

  3       Q.    When was that?

  4       A.    I believe it was two weeks ago.

  5       Q.    Did you understand at that time two 

  6  weeks ago that it called for the production of 

  7  documents?

  8       A.    Yes.

  9       Q.    Did you make any search for the 

 10  documents requested?

 11       A.    Oh, yes. 

 12       Q.    Tell us everything you did to search for 

 13  the documents requested.

 14       A.    Well, I searched through a pile of 

 15  papers in the attic and tried to find as much as I 

 16  could, contacted my accountant, got together back 

 17  issues you requested. 

 18             I think that pretty much covers 

 19  everything.  I also searched the computer system 

 20  that I am on for any E-mail that may have been 

 21  there or any logs.

 22       Q.    Did you throw away or dispose of or take 

 23  out of your hard drive any documents at all from 

 24  the time you saw this particular document?

 25       A.    No.  

  1                  Goldstein

  2       Q.    Did you find anything?

  3       A.    My webmaster found a couple of logs.  I 

  4  believe he forwarded them to our legal team. 

  5             As far as on the computer system, I 

  6  searched, I grepped for DeCSS through my E-mail for 

  7  anything having to do with DeCSS or DVDs.  And 

  8  there was nothing there. 

  9             I assume anything I get in the future I 

 10  am supposed to forward.

 11       Q.    The documents you found you gave to your 

 12  counsel?

 13       A.    Yes.

 14             MR. GOLD:  Mr. Garbus, do you know if 

 15       those have been supplied to this office?

 16             MR. GARBUS:  I don't know.  I presume 

 17       Mr. Hernstadt gave you whatever Mr. Goldstein 

 18       gave him.

 19             MS. MILLER:  No, we haven't received 

 20       any documents from --

 21             MR. GARBUS:  Then I will find out.  It 

 22       came at a bad time.  Hernstadt's gone.  

 23       Whatever Mr. Goldstein gave us that is 

 24       appropriate we'll certainly give you.

 25       Q.    Mr. Goldstein, when did you give these 

  1                  Goldstein

  2  documents to your lawyer?

  3       A.    I know my financial records arrived last 

  4  week from my accountant.  As far as the things from 

  5  the web site, I know our webmaster has been in 

  6  touch with Marty and Ed, our legal team, on that.  

  7  And as far as anything else, I don't think there 

  8  was anything else that I can recall.

  9             MR. GARBUS:  I had understood we had 

 10       furnished you with approximately two to 300 

 11       pages of information that is similar to the 

 12       information that had been in Mr. Goldstein's 

 13       affidavit on the motion.  I had understood 

 14       it was going to be sent to you by separate 

 15       letter.  We can check that with Mr. Hernstadt. 

 16             MS. MILLER:  OK, because as of last 

 17       night no one in this office on the team had 

 18       received any documents.  But I appreciate 

 19       your checking. 

 20             MR. GARBUS:  OK.  

 21       Q.    Mr. Goldstein, do you know any reason 

 22  why your attorneys wouldn't have turned these over 

 23  before today?

 24       A.    I know that my accountant had been away 

 25  and hadn't gotten my message until last week, so he 

  1                  Goldstein

  2  wasn't able to FedEx the documents until late last 

  3  week.  So that might be a reason for that. 

  4             Also, I brought in the back issues you 

  5  requested.  I brought those in today actually.  So 

  6  that's my fault. 

  7       Q.    Turning to page 7, number 1, what 

  8  documents do you know exist relating in any way to 

  9  the 2600 dot-com site?

 10       A.    I am not sure exactly what documents you 

 11  had in mind.  Again, it was something our webmaster 

 12  was dealing with. 

 13             As far as documents that are on the 

 14  site, we're prepared to give you an entire snapshot 

 15  of the site, which would be every page that is 

 16  there. 

 17       Q.    And that would include pages relating to 

 18  what issues?

 19       A.    Well, the site is not having to do with 

 20  the issues.  The site is the web site.  That would 

 21  include all these articles ever written on the 

 22  site.  That would include -- well, it couldn't 

 23  include the radio shows that we have up there 

 24  because that's an audio format.  So I don't know 

 25  how that would work. 

  1                  Goldstein

  2             Basically a lot documents relating to 

  3  this case, a lot of documents not relating to this 

  4  case.  If that's what you want, we can furnish you 

  5  with those as well. 

  6       Q.    When you saw this document and didn't 

  7  understand what it meant to ask for all documents 

  8  concerning the 2600 dot-com site, did you put in a 

  9  call to your lawyers? 

 10       A.    Yes, I talked to my lawyers.  I also 

 11  talked to my webmaster and told them to work it 

 12  out.

 13       Q.    Did your lawyers tell you what it meant?

 14       A.    I believe so.  I believe it was --

 15             MR. GARBUS:  I will object to any 

 16       conversations between Mr. Goldstein and his 

 17       lawyers.

 18             MR. GOLD:  I don't know that this is -- 

 19       instructions on how he was to make the 

 20       search I think are not privileged. 

 21             MR. GARBUS:  I think the judge should 

 22       rule on it. 

 23             MR. GOLD:  You don't know that rule. 

 24             MR. GARBUS:  I think the judge should 

 25       rule on it.  I think we may disagree as to 

  1                  Goldstein

  2       those conversations.

  3             MR. GOLD:  Are you saying that those 

  4       are privileged? 

  5             MR. GARBUS:  I am saying if it was a 

  6       conversation about documents, then some of 

  7       it may be privileged.  Some of it which is 

  8       just functional may not be privileged.  But 

  9       there may be privileged conversations within 

 10       that.  I would exert the privilege and then 

 11       you can get a ruling.

 12             MR. GOLD:  I am just trying to find 

 13       out what the witness was told about what 

 14       documents to produce. 

 15             MR. GARBUS:  I presume he was told to 

 16       produce everything he could.

 17             THE WITNESS:  Yes, everything I could 

 18       on the web site.  Except there is one big 

 19       omission.  You say all files made available 

 20       for download from October 1, 1999.  You 

 21       realize we can't give you DeCSS because 

 22       that's no longer on our site.

 23       Q.    You say that when you didn't understand 

 24  what you were to look for with respect to number 1, 

 25  you called your lawyers.

  1                  Goldstein

  2       A.    I don't know if I said I didn't 

  3  understand.  Just that I wanted to make sure that I 

  4  understood correctly that it was basically a 

  5  snapshot of the entire -- the entire system, which 

  6  is no problem at all. 

  7       Q.    Did you give that to your lawyers?

  8       A.    Again, that's something our webmaster 

  9  would do because he has much better technical 

 10  knowledge.

 11             MR. GARBUS:  The webmaster I presume 

 12       was told to do it or ask for it.

 13             THE WITNESS:  Yes. 

 14       Q.    When did you tell your webmaster to 

 15  produce those documents?

 16       A.    That was shortly after I got this 

 17  document.

 18       Q.    Where are they or have they been 

 19  produced to your lawyers?

 20       A.    As far as I know, they have been 

 21  produced.

 22       Q.    Those are the approximately 300 pages 

 23  that you were --

 24       A.    I don't know if it's 300 pages.  It's a 

 25  lot of pages.  I am not sure exactly how many. 

  1                  Goldstein

  2       Q.    I see.  So did your lawyer define for 

  3  you what number 1 --

  4             MR. GARBUS:  You'll get everything 

  5       that --

  6             MR. GOLD:  We're waiting, we're 

  7       waiting, we're waiting. 

  8             MR. GARBUS:  -- that he can download.

  9             MR. GOLD:  We gave you over 10,000 

 10       documents and you complain it isn't enough 

 11       even though you haven't read a tenth of them 

 12       and we asked you for a couple of documents 

 13       and they are not here. 

 14             MR. GARBUS:  Mr. Gold, you have made 

 15       your record.

 16             MR. GOLD:  What does that mean? 

 17             MR. GARBUS:  My understanding is 

 18       that --

 19             MR. GOLD:  I know what your 

 20       understanding is and I know what you do. 

 21             MR. GARBUS:  Good, so let's move on. 

 22  BY MR. GOLD: 

 23       Q.    Did your lawyer give you any description 

 24  of what you should produce with respect to item 

 25  number 1?

  1                  Goldstein

  2       A.    I think I already understood what I had 

  3  to produce. 

  4       Q.    Then why would you have called him to 

  5  ask him what it means?

  6       A.    To clarify that I understood correctly.

  7       Q.    Did you do that with number 2?

  8       A.    Number 2? 

  9       Q.    Did you clarify what your understanding 

 10  of what number 2 was?

 11       A.    Well, number 2 is documents that grant 

 12  us the right to copy motion pictures, and I know we 

 13  don't have documents that tell us we can copy 

 14  motion pictures.  So --

 15       Q.    So you knew what number 2 was and you 

 16  didn't have to ask; is that right?

 17       A.    Well, it's pretty obvious those 

 18  documents didn't exist.

 19       Q.    When you knew what 1 meant, and since 

 20  you knew what it meant, why did you have to ask 

 21  about it?

 22       A.    To clarify it, to make sure that -- you 

 23  wanted a copy of everything on the site and that's 

 24  what we were going to do, and I was going to ask 

 25  the webmaster to provide you with that. 

  1                  Goldstein

  2             You should understand the people on our 

  3  site are basically in school and sometimes they are 

  4  not easily reachable. 

  5             We have tried as hard as we can to get 

  6  these documents, and we wanted to be thorough.  We 

  7  wanted to make sure we didn't just give you a 

  8  couple of things.  We wanted to make sure you got 

  9  what you were asking for.

 10       Q.    So does that mean with respect to number 

 11  1 you have not yet finished contacting all the 

 12  people you want to contact?

 13       A.    There's one person and I contacted that 

 14  person, that's our webmaster.

 15       Q.    What about all these people you just 

 16  referred to who work after school?

 17       A.    I am saying people who I am in contact 

 18  with, and the webmaster is one of them, they don't 

 19  have full-time jobs with our site.  So I have to 

 20  find where they are.  I have to E-mail them.  It 

 21  might be a couple of days before they get back to 

 22  me sometimes, but it is our intention to get you 

 23  every document you asked for. 

 24       Q.    Have you already done that?

 25       A.    As far as I know, that has already been 

  1                  Goldstein

  2  submitted.  As far as I know. 

  3       Q.    To?

  4       A.    It's -- I believe it's been E-mailed 

  5  over to the legal team. 

  6       Q.    Your legal team.

  7       A.    Yes. 

  8       Q.    Who is on your legal team other than 

  9  Mr. Garbus and Mr. Hernstadt?

 10       A.    Those are the two names I know.  I know 

 11  there are more people working on the case.

 12       Q.    Is it true that 3 would have been a part 

 13  of number 1, that you have already produced?

 14       A.    Yes.  That's something that I would have 

 15  immediate control over because you were asking 

 16  within my possession, and so I did that, that 

 17  search on my system where I get my E-mail. 

 18       Q.    It would relate to you or the company, I 

 19  gather.

 20       A.    Right.

 21       Q.    And you searched for any possible 

 22  documents --

 23       A.    I searched throughout my E-mail.

 24       Q.    -- that belong to the company.

 25       A.    If you mean did I search other people's 

  1                  Goldstein

  2  E-mail, that doesn't belong to the company.

  3       Q.    What does the word "other people" mean 

  4  in that?

  5       A.    The system, 2600 dot-com, is what's 

  6  known as shell machine.  It is used by people who 

  7  write articles for the magazine.  It is used by 

  8  people who are affiliated one way or another, 

  9  whether they, you know, they do covers, they're 

 10  artists, they're writers.  They help us out in some 

 11  way technically.  And they each have an account on 

 12  the machine and they receive E-mail there.  They 

 13  have their files this. 

 14             And it is not our position to claim 

 15  ownership over those files, over that E-mail.  I 

 16  know many companies do claim ownership.  We just 

 17  don't subscribe to that philosophy. 

 18             So the way I took number 3 to mean is 

 19  that I should look through my possessions, my 

 20  E-mail, my files for anything having to do with the 

 21  DeCSS, which is what I did.

 22       Q.    Can you name the people that you 

 23  referred to?

 24       A.    Not all of them. 

 25       Q.    Name as many as you can, sir.

  1                  Goldstein

  2       A.    We're talking several dozen people here.

  3       Q.    Take a shot.

  4       A.    I can give you user names of people, but 

  5  I can't place names to them.  Is that enough for 

  6  you?  Because the way --

  7       Q.    What's the user name?

  8       A.    A user name is what you log in as.  For 

  9  instance, my user name is Emmanuel.

 10       Q.    Why don't people use their real names?

 11       A.    Well, for one thing, the way the system 

 12  is set up you can't type in a full name.  The way 

 13  the Net works, people choose handles, and basically 

 14  it's your identity on that particular computer 

 15  system.  You may choose a different identity on a 

 16  different system.  You may use the same identity 

 17  everywhere.  You may use your real name.  People do 

 18  a lot of mixing and matching. 

 19             What I would be happy to do is give you 

 20  a user list on our system.  That's not what you 

 21  asked for.  So I didn't provide that.  But if 

 22  that's what you want, I will happily give you 

 23  that.

 24  RQ   Q.    Thank you.  We are requesting it. 

 25       A.    Sure.

  1                  Goldstein

  2       Q.    And all those names would be on that 

  3  list?

  4       A.    The names of the log-in.  You have to 

  5  understand, I don't even know a lot of people's 

  6  names.  I don't need to know.  I don't ask. 

  7             But what I can give you is -- this 

  8  sounds like something it's not, but I can give you 

  9  our password file, which basically is a list of all 

 10  of our users.  It doesn't contain the password.  It 

 11  contains the encrypted password, which is a good 

 12  form of encryption, I believe. 

 13             MR. GARBUS:  I will take this under 

 14       advisement.  It seems to me a press issue 

 15       here as to exactly what he is turning over 

 16       and whether a member of the press should be 

 17       required to turn this over. 

 18             I will just take it under advisement.  

 19       I haven't thought out the ramifications of 

 20       it. 

 21       Q.    The part-time people that work for 2600 

 22  and who go to school during the day, how many of 

 23  them are there?

 24       A.    Well, there are lots of people.  I 

 25  wouldn't say they are part-time employees or 

  1                  Goldstein

  2  employees in any sense.  They are volunteers, 

  3  people who help out whatever way they can.  Whether 

  4  it's writing an occasional article or submitting 

  5  something of interest to us or advising us in some 

  6  way.

  7             They're people from all different age 

  8  groups, all different parts of the world.  It's 

  9  impossible, and I don't think desirable, to know 

 10  exactly who they are or where they are, what their 

 11  Social Security number is.  It's not what we're 

 12  about. 

 13       Q.    Do you pay any of them?

 14       A.    The only people we pay are the office 

 15  staff and the people who do things like design 

 16  covers or print the magazine.

 17       Q.    All the office staff consists of one 

 18  person?

 19       A.    One person, yes.

 20       Q.    So you don't pay any of these part-time 

 21  people.

 22       A.    No, we don't consider them part-time 

 23  people.  We consider them volunteers that do what 

 24  they can when they can.

 25       Q.    Do any of the volunteers live in the 

  1                  Goldstein

  2  greater New York area?

  3       A.    It's possible.  I mean, I imagine so. 

  4       Q.    Do you have these volunteers listed 

  5  somewhere, however you list them?

  6       A.    We have a staff list which we put in the 

  7  front of the magazine, and that lists writers -- 

  8  yes, you can get a pretty good sense of who 

  9  volunteers though, what they do.

 10       Q.    That would constitute in any one issue 

 11  about what percentage of the volunteers?

 12       A.    Actually that's probably more than the 

 13  people who volunteer that particular time.  I mean, 

 14  at any one time -- for instance, we have a 

 15  conference coming up in a month.  We have a few 

 16  dozen people who are going to be working different 

 17  things, whether it be hooking up a network over 

 18  there, running security, doing various other things 

 19  that you have to do when there's a conference.  

 20  Nobody is getting paid to do this.  It's something 

 21  they all want to do. 

 22             That's something that happens at this 

 23  particular time because we're doing a conference.  

 24  What happens in the fall will be completely 

 25  different.  We'll have people who write articles, 

  1                  Goldstein

  2  people who, you know, who submit various things to 

  3  the magazine, people who let us know what's going 

  4  on, tip us off on a story.

  5       Q.    And the names of every one of these 

  6  people is listed in at least one issue of your 

  7  magazine.

  8       A.    The names they want to go by, yes.  We 

  9  don't require that they give us their real names or 

 10  that we even know who they really are.  It's not 

 11  our place. 

 12       Q.    Why not?

 13       A.    We're a magazine.  We print information 

 14  and that's where we draw the line.  I mean, if 

 15  somebody wants to be, you know, known to us, then 

 16  they will introduce themselves to us.  But we're 

 17  not going to force our way into people's lives and 

 18  demand to know who they are.

 19       Q.    The New York Times and Sacramento 

 20  Journal and all other publications that I know 

 21  about know who works for them.  They have their 

 22  names.  Why wouldn't you?

 23       A.    We're not The New York Times.  We're a 

 24  magazine dealing with technological issues.  Lots 

 25  of times articles are written by kids, by people 

  1                  Goldstein

  2  from other countries.  We don't run our operation 

  3  the same way as The New York Times or as many 

  4  newspapers or magazines.  We --

  5       Q.    What if they -- I am sorry.  Did I cut 

  6  you off?

  7       A.    We allow people to use what I described 

  8  before as handles, which is basically you make up 

  9  your own name.  You define yourself.  And that's 

 10  perfectly OK with us. 

 11             A newspaper like The New York Times, 

 12  obviously they want your real name because they're 

 13  paying you.  They have to have all your 

 14  documentation, your Social Security number, all 

 15  that kind of thing, and that's, you know, that's 

 16  perfectly OK, but that's not what we do.

 17       Q.    Well, some of these no-named or 

 18  fictitious-named people that volunteer write 

 19  articles, don't they?

 20       A.    Yes, some people do.

 21       Q.    And wouldn't you want to know how to 

 22  find them in case you had a problem because they 

 23  printed something that was a total lie?

 24       A.    Well, for someone who writes more than 

 25  one article we gave them an E-mail address in our 

  1                  Goldstein

  2  system.  So that's how we contact them.

  3       Q.    And you have a list of those E-mail 

  4  addresses.

  5       A.    That's what I was describing before.

  6       Q.    Can you provide those to us?

  7       A.    I can provide you with the list of the 

  8  users on our system, yes.

  9       Q.    You say you're not interested in the 

 10  name of anyone who just writes one article for you. 

 11             MR. GARBUS:  That isn't what he said. 

 12             MR. GOLD:  I see. 

 13       Q.    Is that true or false?

 14       A.    I am not interested in anybody's real 

 15  name.  It's not relevant to what I do.  We have 

 16  people who write letters to the editor and, you 

 17  know, we don't consider them staff people, but it's 

 18  something that appears in the magazine as well. 

 19       Q.    Other than letters to the editor, if 

 20  someone writes a story for you that you print, but 

 21  they only write one, you don't want anything from 

 22  them, any way of finding them or contacting them.

 23       A.    Other than the E-mail address, there's 

 24  no need.  We give people who write to us a free 

 25  subscription.  So that's basically what we do. 

  1                  Goldstein

  2       Q.    So a one-time author, he is lost 

  3  forever.

  4       A.    If he doesn't write to us again, yes.

  5       Q.    Isn't it true that you print the names 

  6  of people who write letters to the editor?

  7       A.    We print whatever name they sign.  So 

  8  it's very rare you'll see somebody's real name 

  9  signed to a letter.

 10       Q.    That's sent to your publication.  

 11       A.    Right. 

 12       Q.    Do you have any standard procedures you 

 13  use to check on the truth of articles that you 

 14  write in your publication?

 15       A.    Yes.  We -- it depends on the article.  

 16  I mean, there are many different things, but we'll 

 17  test things out.  We'll make sure that the person 

 18  knows something of what they are talking about, 

 19  that the system that they are describing really 

 20  exists, that the theories they are talking about 

 21  seem to make some sort of sense.  It is different 

 22  with every article.

 23       Q.    You don't check outside sources, just 

 24  the writer?

 25             MR. GARBUS:  Objection.

  1                  Goldstein

  2       A.    I am not sure what you mean.

  3       Q.    In terms of your diligence when you're 

  4  about to print an article, do you do any checking 

  5  other than with the person who wrote that?

  6       A.    Oh, of course.  To see if they are 

  7  describing particular computer operating systems, 

  8  of course we check to see if the operating system 

  9  exists.  We check to see if what they are 

 10  describing -- many times what people write is 

 11  theoretical in nature.  So we check to see if the 

 12  theory seems to be a valid theory.  Not necessarily 

 13  whether it will work, but whether it's conceivable.

 14       Q.    Have you written articles about any of 

 15  the plaintiffs in the last six months?

 16       A.    Other than ourselves? 

 17       Q.    Have any articles or writing appeared in 

 18  2600 about any of the plaintiffs?

 19       A.    The editorial is what, um, and some 

 20  letters to the editor.

 21       Q.    Have you ever checked with any of the 

 22  plaintiffs about anything you wrote?

 23       A.    I am not sure what you mean. 

 24             MR. GARBUS:  Object to form.

 25       Q.    Did you ever call them up?

  1                  Goldstein

  2             MR. GARBUS:  Whether you check with 

  3       the MPAA and ask --

  4             MR. GOLD:  No, I didn't say the MPA.  

  5       I said any of the plaintiffs.

  6       A.    Well, what I write is an opinion piece. 

  7  So --

  8       Q.    You don't check.

  9       A.    I don't think I have to check with 

 10  somebody if I write an opinion piece.

 11       Q.    Does your opinion piece ever contain any 

 12  statements of facts?

 13       A.    It contains my interpretation.

 14       Q.    Of statements of fact?

 15       A.    My interpretation of facts, yes.

 16       Q.    And you believe that they're right?

 17       A.    My opinion that they are right. 

 18       Q.    Did you ever try to contact any of the 

 19  movie studios or MPAA about any of the statements 

 20  you have written in the last year?

 21       A.    I haven't been writing about the MPAA 

 22  for a year.  Only since they filed suit against us.  

 23  I don't think it is appropriate for me to be 

 24  contacting them if they filed suit against me.

 25       Q.    Who told you that?

  1                  Goldstein

  2       A.    That's my opinion. 

  3       Q.    So the answer to my question is no?

  4       A.    Have I contacted them?  No.  

  5             MR. GOLD:  Simple.  Truth is simple.  

  6       OK.  Have a nice lunch.

  7             THE VIDEOGRAPHER:  The time is 12:57 

  8       p.m. we're going off the record. 

  9             (A luncheon recess was taken at 

 10       12:57 p.m.)
















  1                  Goldstein

  2               A F T E R N O O N    S E S S I O N

  3                (Time noted:  2:08 p.m.)

  4             THE VIDEOGRAPHER:  The time is 2:08 p.m.  

  5       We're back on the record. 

  6             MR. GARBUS:  Mr. Gold, let me tell 

  7       you, I had checked during the intermission. 

  8       My recollection that we had furnished you 

  9       with material that comes within point 1 was 

 10       accurate; namely, that in the affidavit of 

 11       Emmanuel Goldstein that had been submitted 

 12       on the motion, we had furnished you, as I 

 13       understand it, with all documents concerning 

 14       the 2600 web site as it existed since I 

 15       think about November 12th. 

 16             With respect to the other information, 

 17       we are still trying to get that for you.  

 18       But my understanding is that that information 

 19       had been furnished to you a good while ago.

 20             MR. GOLD:  As an exhibit in 

 21       Mr. Corley's affidavit? 

 22             MR. GARBUS:  Yes, yes.

 23             MR. GOLD:  Well, we have that.

 24             MR. GARBUS:  What I am saying is that 

 25       has been furnished to you.  My understanding 

  1                  Goldstein

  2       is --

  3             MR. GOLD:  And this is a room with a 

  4       table also, but now what about all the 

  5       documents that the witness gave to you that 

  6       he said that you said you hadn't produced  

  7       or that we said you hadn't produced?

  8             MR. GARBUS:  Mr. Hernstadt as I 

  9       understood has furnished it to you and 

 10       you'll presumably get it by today or 

 11       tomorrow. 

 12             MR. GOLD:  Do you know why it hasn't 

 13       been produced for the last week? 

 14             MR. GARBUS:  I presume because 

 15       Mr. Hernstadt has been busy doing other 

 16       things.

 17             MR. GOLD:  Instead of producing 

 18       documents to us.  Yes, I would guess that 

 19       too.  I just didn't understand what your 

 20       statement had to do with the fact that you 

 21       hadn't produced the documents we were 

 22       talking about.

 23             MR. GARBUS:  Because you have to 

 24       understand that you have 90 percent of the 

 25       documents.

  1                  Goldstein

  2             MR. GOLD:  How do you know?  You have 

  3       never seen them, have you? 

  4             MR. GARBUS:  Of course I have.

  5  RQ         MR. GOLD:  Mr. Garbus, we would like to 

  6       hire an expert and get expert to the 

  7       witness's hard drive --

  8             MR. GARBUS:  I will take it under 

  9       advisement.

 10             MR. GOLD:  -- for the expert to 

 11       download certain things that Mr. Goldstein 

 12       says he can't download. 

 13             MR. GARBUS:  I will take it under 

 14       advisement. 

 15             MR. GOLD:  When will you tell us?  

 16       Because I would like to know tomorrow. 

 17             MR. GARBUS:  I will try to tell you 

 18       tomorrow. 

 19             MR. GOLD:  OK. 

 20             In doing that, we would only ask for 

 21       the production of whatever relates to DeCSS 

 22       and CSS. 

 23             MR. GARBUS:  So if there's nothing on 

 24       the hard drive that relates to either of 

 25       those two things, we don't have an issue.  

  1                  Goldstein

  2       So the first question is whether or not --

  3             MR. GOLD:  What does that mean we 

  4       don't have an issue? 

  5             MR. GARBUS:  In other words, let's 

  6       assume there's nothing on his hard drive.

  7             MR. GOLD:  We won't know until we get 

  8       an expert in to --

  9             MR. GARBUS:  In other words, you won't 

 10       take his representation that there's nothing 

 11       on his hard drive that relates to CSS or 

 12       DeCSS and may contain other information, 

 13       some of which you clearly ought not to see. 

 14             MR. GOLD:  He hasn't got any idea what 

 15       is on the hard drive.  He was trying to 

 16       search it.

 17             MR. GARBUS:  First, we have to 

 18       determine what is on the hard drive.

 19             MR. GOLD:  He said he couldn't do 

 20       that.  You weren't here this morning.

 21             MR. GARBUS:  No, I was here this 

 22       morning.

 23             MR. GOLD:  Well, I mean actually. 

 24             MR. GARBUS:  We will take your request 

 25       under advisement. 

  1                  Goldstein

  2             MR. GOLD:  What your witness has 

  3       testified, if you were here, was that he 

  4       didn't feel he could pull down --

  5             MR. GARBUS:  Can't you contain 

  6       yourself, Mr. Gold?  Go ahead. 

  7             MR. GOLD:  That is a funny question.  

  8       I join in your laughter.  Do you want to 

  9       weigh how much time you took up today 

 10       against how much time I am taking up now?  

 11             MR. GARBUS:  Go ahead, Mr. Gold. 

 12             MR. GOLD:  Your witness as you know 

 13       testified this morning that he didn't think 

 14       he could pull anything down from his hard 

 15       drive, that he had tried before and couldn't 

 16       do it, that it wasn't set up in order to do 

 17       that. 

 18             I found that surprising in light of 

 19       what I read in the papers all the time about 

 20       other people's hard drives, but I am not a 

 21       hard drive expert.  So he said that he 

 22       didn't think it could be done.  And he was 

 23       trying to do it.  We want to get somebody in 

 24       to actually see if that's true and whether 

 25       he can get something. 

  1                  Goldstein

  2             MR. GARBUS:  We'll take it under 

  3       advisement.  

  4             THE WITNESS:  Can I say something at 

  5       this point?  I get maybe a thousand pieces 

  6       of E-mail a day.  I am not quite sure how 

  7       somebody is going to go through all the 

  8       deleted mail, which has probably been 

  9       overwritten by new material since then over 

 10       the past several months, and track that.  I 

 11       mean, it's not possible.  If it were 

 12       possible it would take you years, but I 

 13       don't think it's possible at all. 

 14             MR. GOLD:  Well, we'll take a crack at 

 15       it, if you permit us to.  That's an 

 16       unfortunate word.  We'll take a shot at it 

 17       and we'll see if that's right, and if 

 18       there's anything that he can get out that's 

 19       relevant, he or she, then we'll ask for its 

 20       production. 

 21             MR. GARBUS:  As I said, I will take it 

 22       under advisement.  I will try and make a 

 23       determination.  If I can make a 

 24       determination by tomorrow, I will tell you.  

 25       If we require something more than that, I 

  1                  Goldstein

  2       will also tell you. 

  3             MR. GOLD:  OK, well, I hope we get it 

  4       from you tomorrow.  

  5  E M M A N U E L   G O L D S T E I N , resumed and 

  6       testified as follows:

  7  EXAMINATION BY (Cont'd.)

  8  MR. GOLD: 

  9       Q.    Now, I take it that all of the material 

 10  you attached to one of your affidavits was material 

 11  relating to sites that 2600 was linking to, not 

 12  material related to 2600. 

 13             MR. GARBUS:  That's wrong.

 14       A.    I don't believe so. 

 15             MR. GARBUS:  I assume you're familiar 

 16       with the affidavits we submitted in the 

 17       case.  That's wrong. 

 18             MR. GOLD:  Paragraph 5 of your 

 19       June 14th declaration says:  As I stated in 

 20       my previous declaration in support of this 

 21       motion, the sites containing DeCSS, mirrors 

 22       to which we currently link, are very diverse 

 23       in nature.  In particular, many of these 

 24       sites provide a variety of legitimate 

 25       information concerning topics related to 

  1                  Goldstein

  2       this case and DeCSS.  I know that's more 

  3       than just mirrors setting forth the DeCSS 

  4       code.  Annexed hereto as Exhibit C are 

  5       copies of the first page of the newer sites 

  6       currently listed on 2600.

  7       A.    Uh-huh.  That's a list.  Not the entire 

  8  site.  That's a list of the sites.

  9       Q.    But what we have in that bulky exhibit 

 10  are copies taken from those sites that you link to, 

 11  right?

 12       A.    I am not sure.  I haven't --

 13             MR. GOLD:  This is what Mr. Garbus must 

 14       be talking of.  It may be yet again that he 

 15       has committed an error.

 16             MR. GARBUS:  In other words, are there 

 17       anything here from you or is it just from 

 18       the newer sites?

 19             THE WITNESS:  Those are different 

 20       sites.  There's a list -- yes, these are by 

 21       samples from other sites.

 22             MR. GOLD:  Et bien, what do you say 

 23       now? 

 24             MR. GARBUS:  If I am in error, then 

 25       I'm in error.  In other words, if you're 

  1                  Goldstein

  2       telling me that we didn't give him that, 

  3       then we should certainly give you that.  I 

  4       had understood we had given that to you.

  5             THE WITNESS:  This looks like an 

  6       indication that the sites are diverse in 

  7       nature and have all kinds of other material 

  8       in addition to DeCSS.  I think that's the 

  9       point of submitting this. 

 10             MR. GARBUS:  Right. 

 11             MS. MILLER:  Was there another stack 

 12       of documents you were talking about that was 

 13       attached in --

 14             MR. GARBUS:  I thought there was.  I 

 15       had thought I had seen a set of documents 

 16       which were everything that we had done from 

 17       October -- not October, from let's say 

 18       November until now.  When I say everything, 

 19       I mean some of the 2600 editorials.

 20             THE WITNESS:  Actually, I see it over 

 21       there.  That stack right there, those are 

 22       our editorials.  That's what we would have 

 23       given you.  It's really not that much.  It's 

 24       everything we've written on the web site 

 25       from November until now. 

  1                  Goldstein

  2             MR. GARBUS:  I thought we had given 

  3       that to you.  If I'm in error, you'll 

  4       certainly get it.

  5       Q.    Can you state for the record, perhaps 

  6  again, what it is you think you've given us? 

  7             MR. GARBUS:  Be specific.  You have 

  8       seen this.  If I am an error or if they 

  9       haven't received it, don't give them that.  

 10       Just describe what's in this package.

 11             MR. GOLD:  Is it all right if I ask 

 12       the questions and without direction to the 

 13       witness?

 14             MR. GARBUS:  But you're misleading the 

 15       witness, Mr. Gold.

 16             MR. GOLD:  You know how to object.  

 17       And you shouldn't tell the witness what to 

 18       say.  You really shouldn't.

 19             MR. GARBUS:  Mr. Gold, please.  

 20       Contain yourself.

 21       A.    As far as I know, obviously we gave 

 22  you this, which is a description of other --

 23       Q.    Did you give us that?  Do you know that?

 24       A.    From what you told me today, yes.

 25       Q.    You have it in front of you.  Did you

  1                  Goldstein

  2  give it to us?

  3       A.    I remember we went through to find 

  4  samples of other sites, but this was quite some 

  5  time ago.  So this was a couple of months ago. 

  6             I also know that we have gone through 

  7  every single news item that we have written on the 

  8  sites and I presume that was submitted to you as 

  9  well. 

 10       Q.    By whom?

 11       A.    By our lawyers. 

 12       Q.    When did you give those to your lawyers?

 13       A.    I think we have gone through those 

 14  several times actually.  I mean --

 15       Q.    I don't know who the "we" is, sir.

 16       A.    Me, my lawyers, our webmaster.

 17       Q.    Have gone through the stuff you wrote 

 18  for your web site.

 19       A.    The news items on the web site, yes.

 20       Q.    The ones you wrote?

 21       A.    The ones I had written and the ones that 

 22  are written by other people as well.

 23       Q.    So you say there was a group of -- stack 

 24  of papers that are taken -- of pictures taken from 

 25  your or copies taken from your web site.

  1                  Goldstein

  2       A.    They're basically just articles, yes.

  3       Q.    Were taken from the web site and they're 

  4  articles or editorials that you have written.

  5       A.    Yes. 

  6       Q.    And then you gave them to your lawyers, 

  7  that stack; is that true?

  8       A.    We either gave it to them or we told 

  9  them exactly how it's -- how to print them out.  I 

 10  mean, anybody can do this.  You just go to the web 

 11  site and print.

 12       Q.    Then I take it you're not sure you gave 

 13  them this stack?

 14       A.    There have been so many papers floating 

 15  around, I don't know if those are the ones that I 

 16  handed to them or if I just said this is how you 

 17  print them out.  But I know we've been over this.

 18             MR. GARBUS:  Mr. Gold, let me just say 

 19       one thing.  Anybody can just go to the site 

 20       and download it.  My memory is that 

 21       Mr. Goldstein told us how to do it.  We did 

 22       it and I thought we had given those 

 23       documents to you.  If we have not, you'll 

 24       get it.  They're available to anybody who 

 25       wants to get it. 

  1                  Goldstein

  2             THE WITNESS:  I see them here though.  

  3       Either we gave them to you or you printed 

  4       them out yourself.  So I am not quite sure. 

  5             MS. MILLER:  Some of them we printed 

  6       ourselves. 

  7       Q.    But you don't remember -- I take it that 

  8  you gave us that of those stories or editorials to 

  9  your lawyer.

 10       A.    I know we have gone through it at some 

 11  point.  And I am fairly certain that all the papers 

 12  have been submitted that we're supposed to submit.  

 13  I can't give you a time and date of every single 

 14  one we did.

 15       Q.    Why are you so certain?

 16       A.    Because I have been going through this 

 17  for quite some time.

 18       Q.    Why does that mean they were given to us 

 19  if you sat and went through them?

 20             MR. GARBUS:  I will object.  This is 

 21       totally unnecessary.  I will direct the 

 22       witness not to answer.

 23             MR. GOLD:  You don't want to let him 

 24       answer any more questions about the 

 25       production?

  1                  Goldstein

  2             MR. GARBUS:  No, I'm not going to let 

  3       him answer that question.  It's badgering 

  4       him.  He said he gave the papers to us.  

  5       What happens, whether the papers go from us 

  6       to you or not, it's not something he should 

  7       be badgered over. 

  8             What I am telling you is that it's my 

  9       understanding we gave it to you.  It's also 

 10       totally on the public record.  It's not 

 11       anything that's being withheld, and you have 

 12       indicated that you have some of those 

 13       documents.  Anybody can download it. 

 14       Q.    Are all those documents downloadable now 

 15  or are some of them lost?

 16       A.    No, we don't erase anything on our site, 

 17  that's on the web site.

 18       Q.    What about E-mail?  That's not on the --

 19       A.    E-mail is not on the web site.

 20             MR. GOLD:  I gather, Mr. Garbus, you 

 21       don't know whether those documents were 

 22       given to us personally.

 23             MR. GARBUS:  My understanding is they 

 24       were.  But I could be wrong.  If I am wrong, 

 25       you will get the documents.  But they are 

  1                  Goldstein

  2       public knowledge.  Anybody can get them.  

  3       Nothing has been withheld from you.

  4       Q.    Turning to item number 8, did you search 

  5  for those documents? 

  6       A.    Yes, this is the E-mail that I grepped 

  7  through for any mention of these words. 

  8       Q.    Where did you look for them?

  9       A.    On my home system, 2600 dot-com.  But I 

 10  should point out, I as a rule don't save mail.  It 

 11  clogs up the system. 

 12             As far as chat rooms, I never save 

 13  anything from chat rooms.  That's gone as soon as 

 14  it's sent and that doesn't even get saved to hard 

 15  drive, ever.

 16       Q.    Do I take it you looked through every 

 17  one of these 14 -- make it, sorry, 26 categories 

 18  and made, I'm sorry, there are 31 at page 12.  You 

 19  have looked through all of these 31 requests?

 20       A.    Yes.

 21       Q.    And made searches for everything within 

 22  them.

 23       A.    Yes.

 24       Q.    And they would either be on your 

 25  computer or in a stack of papers in your basement.

  1                  Goldstein

  2       A.    Yes, attic.  Either there or on the 

  3  computer or just not in existence. 

  4       Q.    How high is that stack of papers in your 

  5  basement?

  6       A.    It's pretty formidable.

  7       Q.    Three feet or ten feet?

  8       A.    It's more like mail bags filled with 

  9  information.  And it's basically old financial 

 10  records, things like that.  It's all pretty well 

 11  labeled, so I have no trouble finding -- I have no 

 12  trouble finding old financial records. 

 13       Q.    Each document there is labeled?

 14       A.    Well, we put them in envelopes and label 

 15  what they are.  Some would say, you know, tax 

 16  return from this particular year.  That's where you 

 17  find it.

 18       Q.    What are the other categories?

 19       A.    Basically subscriber E-mail -- not 

 20  E-mail, subscriber mail.  People who send mail to 

 21  us wanting to subscribe.  We save that.  Our bills, 

 22  bills that we paid, things like that. 

 23       Q.    What other things were there?

 24       A.    That's about it.  There's an awful lot 

 25  of it that accumulates over the years. 

  1                  Goldstein

  2       Q.    So you say some old E-mails.

  3       A.    No, not E-mails, just mail.  Paper mail 

  4  that gets sent to us.  Someone writes us and says 

  5  they want to subscribe.  We save that in case 

  6  they -- we need to access it in the future.

  7       Q.    What is the Electronic Frontier 

  8  Foundation?

  9       A.    EFF is an organization that basically 

 10  keeps an eye on the various laws being passed that 

 11  affect electronic liberty and freedom and that kind 

 12  of thing.  That spark their interest. 

 13       Q.    What does electronic freedom mean?

 14       A.    What's my opinion? 

 15       Q.    When you use it, yes.

 16       A.    Basically having the same rights on the 

 17  Net as you have in real life off the Net.  And also 

 18  keeping an eye out for privacy invasions by 

 19  whatever powers that be. 

 20       Q.    Does it relate to any rights you have 

 21  with respect to DVDs?

 22       A.    They saw the --

 23             MR. GARBUS:  Object to the form of the 

 24       question.

 25       A.    They saw the lawsuit against us as 

  1                  Goldstein

  2  something that they wanted to challenge. 

  3       Q.    They saw?  Who is "they"?

  4       A.    EFF. 

  5       Q.    I think you said the Electronic Frontier 

  6  Foundation --

  7       A.    Right. 

  8       Q.    -- supports having the same freedom on 

  9  the Internet one has in real life; is that correct?

 10       A.    Well, that's my interpretation.  I am 

 11  not quoting them saying that. 

 12       Q.    I just want to make sure I didn't 

 13  misquote you.

 14       A.    But that's what I believe.

 15       Q.    And does that relate to DVDs I asked 

 16  you.  Can you answer that yes or no and then 

 17  explain it?

 18       A.    Yes, in this case because the whole 

 19  concept of fair use, the whole concept of being 

 20  able to engage in free speech, it's related to this 

 21  whole DVD issue. 

 22       Q.    What speech is being attacked?

 23             MR. GARBUS:  I will object to the form 

 24       of the question.

 25       A.    Speech in the form of source code, 

  1                  Goldstein

  2  speech in the form of being able to communicate 

  3  openly about encryption and to compare techniques 

  4  of encryption.  That's basically it that relates to 

  5  speech. 

  6       Q.    Did you have any communication you 

  7  received from Roman Kazan or Shawn Reimerdes?

  8       A.    No.  I mean, I spoke to Roman Kazan in 

  9  person at the Linux Expo in I believe it was 

 10  January, and the other person I have never met.

 11       Q.    What did you talk to him about?

 12       A.    Well, I hadn't seen him in a while.  So 

 13  we talked about a bunch of things.  He was a friend 

 14  of mine from years ago. 

 15             He runs an Internet service provider.  

 16  Basically he has a lot of customers that use his 

 17  system, and he was just very worried about having 

 18  to deal with a lawsuit and having to expose his 

 19  subscribers to that.  And that's eventually why he 

 20  dropped out of the case. 

 21       Q.    Now, the stacks of paper in your 

 22  basement, you said many of them related to 

 23  financial information?

 24       A.    Attic, yes. 

 25       Q.    In the attic, I'm sorry.

  1                  Goldstein

  2       A.    Just, you know, tax returns.  A lot of 

  3  stuff that my accountant already has and has better 

  4  copies of.  Receipts, things like that.  You know, 

  5  I like to save things.

  6       Q.    Turning to 26 in that document, sir, 

  7  page 11.  Did you understand that to ask you to 

  8  produce all your financial records?

  9       A.    Yes, and that has all been produced.

 10       Q.    It has all been produced to you. 

 11             MR. GARBUS:  It has been produced to 

 12       us. 

 13             MR. GOLD:  I didn't ask for your 

 14       understanding.  I am asking your witness. 

 15             MR. GARBUS:  Mr. Gold, just stop it. 

 16             MR. GOLD:  Not you. 

 17             MR. GARBUS:  Just stop it.

 18             MR. GOLD:  Don't answer questions for 

 19       your witness, Mr. Garbus.  Thank you. 

 20       Q.    What is your answer?

 21       A.    They were produced to our attorneys, 

 22  yes.

 23       Q.    Where are they now?

 24       A.    I imagine they are still there.  They 

 25  were produced late last week.

  1                  Goldstein

  2       Q.    You have taken them all out of the 

  3  stack?

  4       A.    No.  Actually I verified that my 

  5  accountant had better copies of that.  I figured 

  6  those are the ones you wanted.

  7       Q.    Your accountant sent them to your 

  8  lawyers or --

  9       A.    I contacted our accountant and he 

 10  FedEx'd them I believe last Thursday.  So they 

 11  should have received it on Friday. 

 12             MR. GOLD:  You haven't turned those 

 13       over, have you, Mr. Garbus? 

 14             MR. GARBUS:  I would have to speak to 

 15       Mr. Hernstadt. 

 16             MR. GOLD:  You don't know.

 17             MR. GARBUS:  I don't know.

 18       A.    I know at the time my attorneys were 

 19  in California.  So that probably accounts for any 

 20  delay. 

 21       Q.    If you turn to page 9 of the document, 

 22  Mr. Goldstein, number 14 at the bottom.  Did you 

 23  understand what that called for?

 24       A.    Yes. 

 25       Q.    What was your understanding?

  1                  Goldstein

  2       A.    Those are log files.  Those are files 

  3  that basically show who hits your web site, how 

  4  often, what pages they look at.  I talked to my 

  5  webmaster about it.  And since, um, I believe it's 

  6  since last summer we haven't kept log files.  I 

  7  know he found a couple of test log files that he 

  8  ran, I believe it was sometime this spring. 

  9             But we had a problem with -- we had so 

 10  many hits coming in that it caused problems with 

 11  our site.  Because what you do with log files is 

 12  you go through them all and you come up with 

 13  percentages.  You say this many people from this 

 14  kind of a site hit this particular page.  We did 

 15  this once a week on Sunday nights. 

 16             It turned out that what happened on 

 17  Sunday nights, there was so much activity and these 

 18  files became so big, that our system would crash.  

 19  And after a while visitors to our site from years 

 20  ago remember that we had a counter on the front 

 21  page that says how many people had gone to the 

 22  front page.  Every time that system crashed that 

 23  number would go back to number 1.  And it got kind 

 24  of embarrassing after a while that our large number 

 25  was always going down to 1. 

  1                  Goldstein

  2             So we just said enough, it's not worth 

  3  it.  Let's just stop.  Because we have a lot of 

  4  people visiting the site.  That's what's important, 

  5  and the logs don't really matter that much.  And 

  6  they really don't.  Because we don't care who is 

  7  visiting our site.  We don't care what they're 

  8  looking at.   Obviously people are visiting the 

  9  site.  That's all that really matters. 

 10             Plus we just don't have the staff to 

 11  deal with this.  If we were a big company, we had a 

 12  lot of people, we could give somebody the job of 

 13  watching over the logs and making sure the machine 

 14  doesn't crash.  But basically we're talking about 

 15  two people running this thing.

 16       Q.    You mentioned your webmaster took two 

 17  tests, something or other?

 18       A.    Test log files.

 19       Q.    Test log files.  And where are those?

 20       A.    I believe he submitted those.

 21       Q.    To?

 22       A.    To our attorneys.  I believe they were 

 23  submitted late last week, maybe even early this 

 24  week.  I had a little bit of trouble getting hold 

 25  of him.  But I know he did submit them.

  1                  Goldstein

  2       Q.    You submitted the originals and not 

  3  copies?

  4       A.    You can't really do that.  It's a file.  

  5  So he sent a copy of the file to our attorneys.  

  6  Yes.

  7             MR. GOLD:  Mr. Garbus, have you turned 

  8       those over to us yet? 

  9             MR. GARBUS:  I would have to speak to 

 10       Mr. Hernstadt.

 11             MR. GOLD:  Because if you have, we 

 12       don't know about it. 

 13             By the way, I did want to mention on 

 14       the record, since we had put so much on the 

 15       record earlier on this subject, you at 

 16       several times made an offer to continue the 

 17       deposition today for the rest of the 

 18       afternoon while some of us went to court, 

 19       and I said I thought that I had to be in 

 20       court, which I still think I have to be.  

 21       But I did say after a bit that we could do 

 22       that.  But you have changed your mind, I 

 23       gather.  You don't want to do that.  

 24             MR. GARBUS:  What I determined was 

 25       that issues came up this morning that if 

  1                  Goldstein

  2       Mr. Hernstadt did not know about he would be 

  3       at a disadvantage, so he ought to be there.  

  4       In exchange for that I had suggested that we 

  5       start early tomorrow morning so that if 

  6       we've lost two hours Mr. Goldstein and I 

  7       would be prepared to start at 8 o'clock 

  8       tomorrow morning or 7:30 to make up for the 

  9       lost hours this afternoon.  And you 

 10       indicated to me you could not do that.

 11             MR. GOLD:  Do you remember that

 12       Mr. Hernstadt was here all morning? 

 13             MR. GARBUS:  Yes, he was here all 

 14       morning.  He left when he had to prepare his 

 15       argument for court this afternoon.

 16             MR. GOLD:  So what came up this 

 17       morning that he wouldn't know about? 

 18             MR. GARBUS:  What came up this morning 

 19       that he would not know about is the whole 

 20       question of what documents were produced and 

 21       what questions were not produced. 

 22             In other words, your discussion 

 23       basically of this document, Plaintiffs' 

 24       First Request for Production of Documents, 

 25       which has fundamentally been in 

  1                  Goldstein

  2       Mr. Hernstadt's hand, came up after 

  3       Mr. Hernstadt left. 

  4             And you were making all kinds of 

  5       implications about what Mr. Hernstadt did do 

  6       or didn't do, and he should have knowledge --

  7             MR. GOLD:  I am very capable of saying 

  8       precisely what each of you have done if I 

  9       knew.  And you won't have any questions 

 10       about that if I actually have evidence that 

 11       something untoward took place.  You will 

 12       know that I am making that claim.  You won't 

 13       have to repute it. 

 14             MR. GARBUS:  Mr. Gold, this is kid 

 15       stuff.  It's just posturing. 

 16             MR. GOLD:  What options does one have 

 17       with you? 

 18             MR. GARBUS:  One always has the option 

 19       to be above it.

 20             MR. GOLD:  I am going to ask you, 

 21       Mr. Garbus, to specifically represent 

 22       whether you're going to turn those documents 

 23       that may not have been turned over to us 

 24       over to us tomorrow. 

 25             MR. GARBUS:  I will take it under 

  1                  Goldstein

  2       advisement. 

  3             MR. GOLD:  You won't tell me that you 

  4       will?

  5             MR. GARBUS:  No, of course.  I will 

  6       turn over to you, and I thought I made it 

  7       very clear, any document that comes within 

  8       the ambit of this request.  You have asked 

  9       for documents going back -- I will just go 

 10       down through it.  We will give you 

 11       absolutely everything --

 12             MR. GOLD:  When? 

 13             MR. GARBUS:  As soon as we can get it.  

 14       Now, to the extent --

 15             MR. GOLD:  Not tomorrow. 

 16             MR. GARBUS:  No, no.  To the extent 

 17       Mr. Hernstadt has it, you will get 

 18       everything by 9 o'clock or 10 o'clock 

 19       tomorrow before the deposition starts. 

 20             MR. GOLD:  Gee, I understand that.  

 21       Thank you. 

 22             MR. GARBUS:  To the extent that we 

 23       leave court early, you can get everything 

 24       that Mr. Hernstadt has by 6 o'clock.

 25             MR. GOLD:  I understand that also.

  1                  Goldstein

  2             MR. GARBUS:  This evening.

  3             MR. GOLD:  And thank you. 

  4             MR. GARBUS:  So that if we get out of 

  5       court at 5 o'clock, I would hope that 

  6       Mr. Hernstadt would come back to the office.  

  7       I do not know whether these documents are 

  8       Bates stamped or not.  All the documents 

  9       that the witness has referred to I presume 

 10       arrived while we were in California during 

 11       doing the deposition of Mr. Hoy.  I don't 

 12       know whether they have been Bates stamped or 

 13       not, but we'll make every attempt to Bates 

 14       stamp them and get them to you as soon as 

 15       feasibly possible. 

 16             MR. GOLD:  So maybe not tomorrow.

 17             MR. GARBUS:  Oh, no.  The question is 

 18       whether we get it to you tonight at 6, but 

 19       certainly by tomorrow morning.  To the 

 20       extent that we have them. 

 21             Now, my understanding is, I don't know 

 22       whether we have, given the breadth of your 

 23       requests, all of the documents that you're 

 24       referring to, but we will give to you 

 25       everything that we have.  Anything that came 

  1                  Goldstein

  2       from Mr. Goldstein to us, we will make sure 

  3       that you have. 

  4             Again, my understanding being that in 

  5       the previous motions we supplied you with 

  6       about 200 pages or 300 pages of the exact 

  7       same material you're seeking, including 

  8       those documents which Mr. Goldstein referred 

  9       to in his affidavit which you have on the 

 10       table and also the articles and editorials 

 11       that were written at 2600 dot-com, some of 

 12       which you have already used in a 

 13       cross-examination of Mr. Goldstein.  We have 

 14       also given you, as I understand it, copies 

 15       of The Hackers Quarterly sometime before 

 16       today. 

 17             MR. GOLD:  Is that one or two 

 18       sentences? 

 19             MR. GARBUS:  I stated it as one 

 20       sentence without commas.

 21             MR. GOLD:  Thank you. 

 22  BY MR. GOLD: 

 23       Q.    Mr. Goldstein, what hacks to your 

 24  knowledge has 2600 ever reported on? 

 25       A.    I am not sure what you mean by hacks. 

  1                  Goldstein

  2       Q.    You don't know what a hack is? 

  3             MR. GARBUS:  You define it differently 

  4       than he, Mr. Gold.

  5       Q.    How do you understand a hack?

  6       A.    There's all kinds of definitions.  If 

  7  you would be a little more specific, I can --

  8       Q.    I will try, sir.  Has 2600 ever reported 

  9  on a circumstance where a corporate or personal 

 10  computer site was gotten into by any individual?

 11       A.    Are we talking about a web page being 

 12  hacked? 

 13       Q.    Yes, to begin with.

 14       A.    Yes, we have reported on web pages being 

 15  hacked.

 16       Q.    Tell me which of those you remember.

 17       A.    Gosh.  Well, let's see.  There are a lot 

 18  of Chinese web pages that got hacked.  I remember 

 19  the Department of Justice was hacked a while ago.  

 20  NASA gets hacked every few months. 

 21             Basically quite a few companies that are 

 22  on the Net get hacked.  That means it's almost a 

 23  right of passage.  What we do, actually, we haven't 

 24  done it in a while, because we just don't have the 

 25  staff to keep up with it.  Other sites do a better 

  1                  Goldstein

  2  job.  But when a site gets hacked, someone notices 

  3  it, sends us mail and we capture it, we copy the 

  4  files and post it in our library.

  5       Q.    For what purpose?

  6       A.    To report on it.  To show people the 

  7  security failed.  This is what was put up on this 

  8  site.  What the motives are of people who do this 

  9  is not something we try and pass judgment on.  Some 

 10  people do it as a political statement.  Some people 

 11  do it because they are immature.  Some people have, 

 12  you know, nefarious purposes. 

 13             It's not our place to say this is done 

 14  for this particular reason.  We just show or we did 

 15  show what it looks like.  And if possible, how it 

 16  was done and what it was that failed. 

 17       Q.    And that's solely for the purpose of 

 18  letting people know that it happened?

 19       A.    Yes, it's a news story.  The mainstream 

 20  media does the same thing except they generally 

 21  like the technical detail and lots of times they 

 22  don't provide specifics, and there's a lot of 

 23  innuendo, a lot of, you know, hysteria that goes 

 24  along with those reports that we try to avoid.

 25       Q.    When you report on them do you ever post 

  1                  Goldstein

  2  an executable software utility?

  3       A.    No, that's not how it works on the web 

  4  page.  It's just a graphical file. 

  5       Q.    Do you ever post algorithms in 

  6  connection with those --

  7       A.    No.  

  8       Q.    -- instances? 

  9             Do you give any technical description of 

 10  those hacks?

 11       A.    If we receive technical information as 

 12  how it's done, yes, we provide that.

 13       Q.    Do you make any difference in your own 

 14  profession between journalism and civil 

 15  disobedience? 

 16             MR. GARBUS:  I object to the form.

 17       A.    Yes, I think there are --

 18       Q.    What is the difference that you make?

 19       A.    Journalism is reporting on something 

 20  obviously.  Civil disobedience is taking a stand, a 

 21  nonviolent stand, against something that you think 

 22  is wrong. 

 23             It's a sad day if journalism and civil 

 24  disobedience becomes the same thing, but it has 

 25  happened in some countries.

  1                  Goldstein

  2       Q.    Do you remember ever writing in the 2600 

  3  publication that mirrors of DeCSS were a 

  4  demonstration of electronic civil disobedience?

  5       A.    Yes.

  6       Q.    What does that mean?

  7       A.    It basically means that despite the fact 

  8  that we're being threatened by all kinds of 

  9  powerful entities, for people, many of whom are 

 10  very small, poor people, individuals around the 

 11  world, for them to actually stand up and say this 

 12  is wrong and stand up against those entities, to me 

 13  that's an admirable thing. 

 14             To me that's basically putting your 

 15  beliefs in front of your personal safety, which is 

 16  what civil disobedience is.  It's lying down in 

 17  front of bulldozers.  It's blocking streets and 

 18  being arrested.  This is a case of electronic civil 

 19  disobedience where people say this is wrong and I 

 20  am going to put my site on the line because I 

 21  believe it's wrong.

 22       Q.    Does civil disobedience involve breaking 

 23  the law for a cause you consider just? 

 24             MR. GARBUS:  I will object to it.  Why 

 25       don't you take the -- well, you can't.  

  1                  Goldstein

  2       Civil disobedience is a very complex thing.  

  3       I will allow the witness to answer.  It is 

  4       clearly you're limited, your knowledge is so 

  5       limited.

  6             MR. GOLD:  Thank you so much, 

  7       Mr. Garbus.  That's very kind of you. 

  8             MR. GARBUS:  He also drew a 

  9       distinction between his role as a 

 10       journalist --

 11             MR. GOLD:  You're not testifying, 

 12       Mr. Garbus.

 13             MR. GARBUS:  -- and the whole question 

 14       of civil disobedience.

 15             MR. GOLD:  What about this question 

 16       bothers you so much? 

 17             MR. GARBUS:  Because you have no 

 18       awareness of what you're talking about.  It 

 19       is embarrassing.  I would think you'd be 

 20       embarrassed.

 21             MR. GOLD:  Go ahead, Mr. Goldstein.

 22             THE WITNESS:  I need to hear the 

 23       question again. 

 24             (A portion of the record was read.)

 25       A.    Yes, I believe so.  That's the 

  1                  Goldstein

  2  definition of civil disobedience.

  3       Q.    You understood my question, didn't you? 

  4  That's why you answered it? 

  5       A.    I am not going to take sides here. 

  6       Q.    Thank you, Mr. Goldstein. 

  7             Has 2600 received any benefit from being 

  8  a plaintiff in this action?

  9             MR. GARBUS:  Defendant.

 10             MR. GOLD:  Defendant, thank you. 

 11             MR. GARBUS:  They would like to be the 

 12       plaintiff.

 13       A.    Well, morally, yes.  We found many, 

 14  many people support us and it's been very 

 15  heartening to see that.  It's also been pretty 

 16  terrifying and sobering knowing what we're up 

 17  against.  So I would say there is a little of good 

 18  and bad.

 19       Q.    What are you up against?

 20       A.    We're up against some pretty powerful 

 21  entities.  For instance, when we have media people 

 22  who want to interview us, nine times out of ten it 

 23  turns out their parent company is suing us.  So it 

 24  is kind of hard to believe that fair stories will 

 25  be written in cases like that.

  1                  Goldstein

  2       Q.    Have any unfair stories been written 

  3  about you?

  4       A.    Yes, quite a few.

  5       Q.    In what publication?

  6       A.    I am thinking of specifically MTV, which 

  7  is owned by Viacom, did a really bad piece.  That 

  8  was last year.  That was before this all happened.  

  9  It is something we're used to.  We're used to bad 

 10  media because they don't understand the issues and 

 11  because they want the sensation of headlines saying 

 12  hackers can do anything.  They don't do the 

 13  research. 

 14             We have had had some very good pieces as 

 15  well.  We've had a good piece in the Village Voice, 

 16  The New York Times.  So it's worth the risk because 

 17  I think we do get some reporters that understand 

 18  what is going on.

 19       Q.    Do you believe hackers can do 

 20  everything?

 21       A.    No.  No.  

 22       Q.    Didn't you say that any protective code 

 23  would be uncovered, discovered, undone by hackers?

 24       A.    Yes.  Hackers can figure things out, but 

 25  it takes time.  It doesn't mean they can do 

  1                  Goldstein

  2  anything.  It means that if a particular form of 

  3  technology very often written by hackers can 

  4  eventually be figured out, undone, defeated.

  5       Q.    So the terrifying instances you're 

  6  talking about are instances where newspapers write 

  7  some story about you?

  8       A.    No.  No.  

  9             MR. GARBUS:  Objection.  You misstated 

 10       the witness's testimony.

 11       A.    The terrifying things are facing this 

 12  kind of a lawsuit, knowing that everything we've 

 13  worked for over the past fifteen or so years can be 

 14  unraveled this easily and that so much time and 

 15  effort can be spent on this and our progress can be 

 16  slowed down to nothing. 

 17       Q.    When was the anticircumvention provision 

 18  enacted into law, if you know? 

 19             MR. GARBUS:  Objection. 

 20       Q.    Was it fifteen or ten years ago?

 21       A.    No.  

 22       Q.    Is it true that you're terrified by the 

 23  fact that some companies have brought a lawsuit 

 24  against you alleging that you violated their 

 25  rights?

  1                  Goldstein

  2       A.    It's the might that's focussing on us 

  3  that's terrifying.  Not what they say we've done.  

  4  Because obviously we don't believe we have done 

  5  anything wrong.

  6       Q.    What has that might done to you other 

  7  than file a lawsuit?

  8       A.    It's a psychological thing.  It's 

  9  knowing that everything -- that so many entities 

 10  are controlled by these eight companies, and for 

 11  instance, we had problems with a bank because they 

 12  had changed their policy towards Internet sales, 

 13  which we've started to get involved in, and the way 

 14  that they suddenly decided that we were a risk to 

 15  them made us wonder was one of these eight 

 16  companies behind it. 

 17             It was very easy to find links between 

 18  them and the eight companies because these eight 

 19  companies are linked to everybody.  So it's a 

 20  psychological thing in that every time something 

 21  bad happens, you wonder.  Is it because of -- who 

 22  are these powerful people?  We all watch the 

 23  movies.  We all know what kind of evil things can 

 24  go on.  So your imagination can run away with you 

 25  sometimes, but a lot of times it's accurate.

  1                  Goldstein

  2       Q.    Some of us read newspapers and find out 

  3  what terrible thing have gone on?

  4             MR. GARBUS:  Is that a question, 

  5       Mr. Gold, or is that a statement? 

  6       Q.    Isn't it a fact that some of us go to 

  7  movies and find out that hackers have done terrible 

  8  things, if we believe what the movie has portrayed?

  9       A.    If you believe what the movies portray 

 10  about hackers, there is not much I can say, really.

 11       Q.    Who knows the truth about hackers other 

 12  than you?  

 13             MR. GARBUS:  Object to the form of the 

 14       question.  Direct the witness not to answer.  

 15       Go ahead, Mr. Gold. 

 16             THE WITNESS:  Not to answer or to 

 17       answer? 

 18             MR. GARBUS:  Answer.

 19             THE WITNESS:  I'm sorry.  Can you 

 20       repeat the question?

 21       A.    I don't think there is a truth.  I 

 22  think there are elements of truth and I think I 

 23  have got a few of those elements.  I think a lot of 

 24  people in the hacker community have a few of those 

 25  elements.  And unfortunately, I believe a lot of 

  1                  Goldstein

  2  the media doesn't really want to get the true 

  3  story.  They have written the story before they 

  4  actually interview the people.

  5       Q.    Is it true that some of the people 

  6  believe that of you?

  7       A.    Oh, I am sure some people do.

  8       Q.    It depends on which side of the matter 

  9  you are on.

 10       A.    It depends on what they believe when 

 11  they read, absolutely. 

 12       Q.    Paragraph 13 of your May 3 declaration.

 13             (Handing.)

 14             MR. GOLD:  Can you mark this as the 

 15       next exhibit, sir.

 16             (Plaintiffs' Exhibit 5, Declaration of 

 17       Emmanuel Goldstein, marked for
 18       identification, as of this date.)

 19             THE VIDEOGRAPHER:  The time is 2:50 p.m. 

 20       We're going off the record. 

 21             (A recess was taken.) 

 22             THE VIDEOGRAPHER:  The time is 

 23       2:52 p.m.  We're back on the record. 

 24  By MR. GOLD: 

 25       Q.    Is it true, sir, that you stated on the 

  1                  Goldstein

  2  record a short while ago that you believed some 

  3  bank you were trying to open an account in wouldn't 

  4  do it, then you believed that was because they were 

  5  owned by or connected to one of the plaintiffs? 

  6             MR. GARBUS:  Objection.  He didn't 

  7       state that.

  8             MR. GOLD:  Why don't you let your 

  9       witness answer.

 10       Q.    Did you say it?

 11       A.    I stated that we had problems with a 

 12  bank and we in our minds had to wonder if that was 

 13  caused because of an affiliation.  In other words, 

 14  any bad thing that happens to us, we have to 

 15  wonder.  You know, is there a connection?  Because 

 16  there are definitely connections.  A lot of these 

 17  corporations are linked together and it's something 

 18  to definitely be worried about.  It's a 

 19  psychological thing. 

 20       Q.    And you say that -- you're serious about 

 21  this, I gather -- that anything bad that happens to 

 22  you since this suit was started you believe is the 

 23  fault of the movie companies? 

 24             MR. GARBUS:  I will object.  It's not 

 25       what the witness said.  You're just 

  1                  Goldstein

  2       misstating it.  He's been the subject of the 

  3       press where he has been vilified.  How can 

  4       that not have a consequence or effect with 

  5       these banks?

  6       Q.    Do you want to repeat what Mr. Garbus 

  7  said?   Now that he's told you what to say.

  8       A.    It's basically we investigated and found 

  9  that there was no truth to that.  But what I was 

 10  trying to convey is that there is a psychological 

 11  thing that goes on when you have all these powerful 

 12  enemies and, you know, it's -- it wouldn't be 

 13  untrue to say that you become a little bit paranoid 

 14  and you start to worry about things that, you know, 

 15  you wouldn't ordinarily worry about.  That's what I 

 16  considered to be the scary part of this.  And of 

 17  course I'm not saying that there aren't real 

 18  threats out there.  I am sure there are. 

 19       Q.    What are they?

 20       A.    I am sure this has had an effect on the 

 21  fairness of the media coverage that we get.

 22       Q.    Why are you sure of that, sir?

 23       A.    Because that's the nature.  If a 

 24  particular media outlet is owned by a different 

 25  corporation, of course on the record they will say 

  1                  Goldstein

  2  that there's no effect.  That ownership has no 

  3  effect. 

  4             But I think it has been proven time and 

  5  again that ownership of media outlets does 

  6  definitely have an effect.  For instance, ABC is 

  7  owned by Disney and has recently been accused of 

  8  not airing stories that are critical of Disney, 

  9  even though it was said at the time of Disney's 

 10  takeover there would be no effect on news.

 11             When Time Warner purchased CNN, again it 

 12  was said there would be no effects, and I have 

 13  heard allegations that there are.  It's a common 

 14  practice when corporations take over other 

 15  corporation that there is some influence.

 16             So when you're dealing with things like 

 17  the media, which I believe should be independent of 

 18  all this, it's inevitable.  It's rather sad because 

 19  I think the American people wind up losing.

 20             MR. GARBUS:  On that note, 

 21       Mr. Gold, --

 22             MR. GOLD:  Don't confuse me.  I am 

 23       good, but I am not that good.

 24             MR. GARBUS:  We can discuss that at a 

 25       later time, but it is now approaching 

  1                  Goldstein

  2       3 o'clock.  Should we take our break? 

  3             MR. GOLD:  Sure. 

  4             MR. GARBUS:  And tomorrow morning at 

  5       10? 

  6             MR. GOLD:  Yes. 

  7             THE VIDEOGRAPHER:  The time is 2:55 

  8       p.m. of the videotape deposition of 

  9       Mr. Emmanuel Goldstein.  This completes tape 

 10       number 2.

 11             (Time noted:  2:55 p.m.)


 13                         ____________________

 14                          EMMANUEL GOLDSTEIN


 16  Subscribed and sworn to before me

 17  this ___ day of __________, 2000.


 19  _________________________________ 








  2                C E R T I F I C A T E


  4                       : ss.  



  7             I, THOMAS R. NICHOLS, a Notary Public 

  8       within and for the State of New York, do 

  9       hereby certify:

 10             That EMMANUEL GOLDSTEIN, the witness 

 11       whose deposition is hereinbefore set forth, 

 12       was duly sworn by me and that such 

 13       deposition is a true record of the testimony 

 14       given by the witness.

 15             I further certify that I am not 

 16       related to any of the parties to this action 

 17       by blood or marriage, and that I am in no 

 18       way interested in the outcome of this 

 19       matter.

 20             IN WITNESS WHEREOF, I have hereunto 

 21       set my hand this 28th day of June, 2000.



 24                              _____________________

 25                                THOMAS R. NICHOLS



  3  ------------------- I N D E X-------------------


  5  ------------- INFORMATION REQUESTS -------------


  7  REQUESTS:  93, 108, 121


  9  -------------------- EXHIBITS------------------- 

 10  PLAINTIFFS'                                 FOR ID.     

 11      1       Piece of paper with the letters      28
                 DeCSS written on it
         2       Spring 2000 issue of 2600, The       48 
 13              Hacker Quarterly, magazine 

 14      3       Document headed "2600/News Archive,  76 
                 Page 1 of 2
         4       Copy of plaintiffs first request     94 
 16              for production of documents 

 17      5       Declaration of Emmanuel Goldstein   158









  <A NAME="day2">1                     



  9                                      )
                      PlaintiffS,        )00 Civ. 277
 10                                      )(LAK)(RLE)
                   vs.                   )
 11                                      )
 12  A/K/A "EMMANUEL GOLDSTEIN";         ) 
     ROMAN KAZAN; AND 2600               )
 13  ENTERPRISES, INC.                   )
 14                   Defendant.         )



 18                 EMMANUEL GOLDSTEIN

 19                 New York, New York

 20              Wednesday, June 28, 2000




 24  Reported by:
     Thomas R. Nichols, RPR
 25  JOB NO. 110289







  7                        June 28, 2000

  8                        10:20 a.m.


 10             Continued videotaped deposition of  

 11       EMMANUEL GOLDSTEIN, held at the offices 

 12       of Proskauer Rose LLP, 1585 Broadway, 

 13       New York, New York, pursuant to Notice,

 14       before Thomas R. Nichols, a Registered 

 15       Professional Reporter and a Notary Public 

 16       of the State of New York. 










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