Kenneth A. Jacobsen Deposition, in MPAA v. 2600

NY; May 17-18, 2000

Sources: http://cryptome.org/mpaa-v-2600-kjd.htm
http://cryptome.org/mpaa-v-2600-kj2.htm

See related files:
http://www.eff.org/IP/Video (EFF Archive)
http://cryptome.org/cryptout.htm#DVD-DeCSS (Cryptome Archive)
http://www.2600.com/dvd/docs (2600 Archive)

                                                            

The continued Jacobsen Deposition on May 18, 2000

                                                                   1
              1                             
              2
                               UNITED STATES DISTRICT COURT
              3
                               SOUTHERN DISTRICT OF NEW YORK
              4
              5   UNIVERSAL CITY STUDIOS, INC., PARAMOUNT  )
                  PICTURES CORPORATION, METRO-GOLDWYN-MAYER)
              6   STUDIOS, INC., TRISTAR PICTURES, INC.,   )
                  COLUMBIA PICTURES INDUSTRIES, INC.,      )
              7   TIME WARNER ENTERTAINMENT CO., L.P.,     )
                  DISNEY ENTERPRISES, INC., and TWENTIETH  )
              8   CENTURY FOX FILM CORPORATION,            )
                                                           )  Civ. No.
              9                        Plaintiffs,         )  0277 (LAK)
                                                           )
             10                 vs.                        )
                                                           )
             11   ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN"   )
                  and 2600 ENTERPRISES, INC.,              )
             12                                            )
                                       Defendants.         )
             13   -----------------------------------------)
             14                                   May 17, 2000
             15                                   9:45 a.m.
             16
             17                  DEPOSITION of KENNETH A. JACOBSEN,
             18           held at the offices of Frankfurt Garbus
             19           Klein & Selz, P.C., 488 Madison Avenue, New
             20           York, New York, pursuant to Order and
             21           Notice, before ELIZABETH SANTAMARIA, a
             22           Notary Public of the State of New York.
             23
             24   Reported by:
                  ELIZABETH SANTAMARIA
             25   

                              INTERIM COURT REPORTING                   
  
   
                                                                   2
              1                             
              2   A p p e a r a n c e s :
              3
              4           PROSKAUER ROSE LLP
              5           Attorneys for Plaintiffs
              6                  1585 Broadway
              7                  New York, New York 10036-8299
              8           BY:    SCOTT P. COOPER, ESQ.
              9
             10           FRANKFURT GARBUS KLEIN & SELZ, P.C.
             11           Attorneys for Defendants
             12                  488 Madison Avenue
             13                  New York, New York 10022
             14           BY:    MARTIN GARBUS, ESQ.
             15                        - and -
             16                  EDWARD HERNSTADT, ESQ.
             17
                          ALSO PRESENT:
             18
                                 Motion Picture Association
             19                  Mark D. Litvack, Esq.
                                 In-house Counsel
             20
                                       --o0o--
             21
             22
             23
             24
             25

                              INTERIM COURT REPORTING
                                                                   3
              1                             
              2                         --o0o--
              3
              4                 IT IS HEREBY STIPULATED AND AGREED by
              5           and between the attorneys for the
              6           respective parties herein that filing and
              7           sealing be and the same are hereby waived.
              8                 IT IS FURTHER STIPULATED AND AGREED
              9           that all objections, except as to the form
             10           of the question, shall be reserved to the
             11           time of the trial.
             12                 IT IS FURTHER STIPULATED AND AGREED
             13           that the within deposition may be sworn to
             14           and signed before any officer authorized to
             15           administer an oath, with the same force and
             16           effect as if signed and sworn to before the
             17           Court.
             18                        --oOo--
             19
             20
             21
             22
             23
             24
             25

                              INTERIM COURT REPORTING
                                                                   4
              1                         
              2                        --oOo--
              3   K E N N E T H   A.   J A C O B S E N,
              4           called as a witness, having been duly sworn
              5           by the Notary Public, was examined and
              6           testified as follows:
              7   EXAMINATION BY
              8   MR. GARBUS:
              9       
             10                    Confidential 
             11                      
             12   
             13 
             14 
             15           Q.     Mr. Jacobsen, prior to coming here
             16   today, did you read the deposition of Mr. Schumann?
             17           A.     I did not.
             18           Q.     Were you told about the deposition
             19   of Mr. Schumann?
             20                  MR. COOPER:  I am going to object
             21           to the extent that the only conversations
             22           Mr. Jacobsen had with respect to the
             23           deposition of Mr. Schumann were with his
             24           attorneys.
             25                  MR. GARBUS:  Please mark this as

                              INTERIM COURT REPORTING
                                                                   5
              1                         Jacobsen
              2           Exhibit 10.
              3                  (Defendants' Exhibit 10, Declaration
              4           of Robin Gross, marked for identification,
              5           as of this date.)
              6   BY MR. GARBUS:
              7           Q.     Have you read the affidavits
              8   submitted by either side in this case thus far?
              9           A.     I have not.
             10           Q.     The first question we asked of
             11   Mr. Schumann dealt with -- do you know who Gerald
             12   Gockner is?
             13           A.     I do not.
             14           Q.     Who is the deputy counsel for the
             15   MPAA?
             16           A.     Greg Geckner.
             17           Q.     Do you know who he is?
             18           A.     Yes, I do.
             19           Q.     Do you know that some weeks ago he
             20   said that so far as he knew there was no piracy
             21   that he knew of with we respect to the use of
             22   deCSS?
             23                  MR. COOPER:  Is that a quote or
             24           are you paraphrasing?
             25                  MR. GARBUS:  I am quoting from the

                              INTERIM COURT REPORTING
                                                                   6
              1                         Jacobsen
              2           Robin Gross affidavit at Paragraph 5,
              3           Page 2.
              4           Q.     Do you know whether the following
              5   statement that Mr. Geckner allegedly made is true
              6   or not?
              7                  MR. COOPER:  This is which
              8           paragraph now?  I will put it before the
              9           witness.
             10                  MR. GARBUS:  Paragraph 5, sentence
             11           2.  Let's mark this as the next document.
             12                  MR. COOPER:  Sir, are you asking
             13           whether Ms. Kaplan's recitation is a
             14           correct quote of what Mr. Geckner said or
             15           are you asking whether this witness knows
             16           whether what is attributed to Mr. Geckner
             17           was true, in fact?
             18                  MR. GARBUS:  The latter.
             19           A.     If I understand, you are asking me
             20   whether or not -- one, I don't know that
             21   Mr. Geckner ever made such a statement.  Okay?
             22           Q.     Let me show you Page 10 of the
             23   deposition of Mr. Schumann, Line 15 to Line 18.
             24                  Can you tell me whether or not, to
             25   the best of your recollection, if you know, whether

                              INTERIM COURT REPORTING
                                                                   7
              1                         Jacobsen
              2   or not there has been any piracy resulting from
              3   deCSS.
              4                  MR. COOPER:  Are you asking the
              5           witness to make reference to
              6           Mr. Schumann's testimony in response to
              7           your question or are you asking whether
              8           the witness has such knowledge
              9           independent of any reference to this
             10           testimony?
             11                  MR. GARBUS:  The latter.
             12                  MR. COOPER:  Do you understand the
             13           question?
             14                  THE WITNESS:  No.
             15           Q.     Do you have any knowledge of any
             16   piracy specifically relating to deCSS?
             17           A.     This may be a definitional problem,
             18   but I would view piracy as the actual distribution
             19   of deCSS itself.
             20           Q.     Right.
             21           A.     So I would consider that to be
             22   piracy.
             23           Q.     Do you know whether any DVDs were
             24   made as a result of the distribution of deCSS?
             25           A.     If you are asking me if I know of

                              INTERIM COURT REPORTING
                                                                   8
              1                         Jacobsen
              2   any specific instances where someone has used the
              3   deCSS utility to hack a DVD and then make an
              4   unauthorized copy, the answer is no.
              5           Q.     Was there any attempt made by the
              6   MPAA to determine whether or not anybody had hacked
              7   a DVD using deCSS to make an unscrambled DVD?
              8                  MR. COOPER:  Let me just say that
              9           with respect to the nature of this
             10           questioning I am going to designate the
             11           witness' testimony and the transcript
             12           confidential.
             13                  If we get into an area in which
             14           I believe it is appropriate to
             15           dedesignate the transcript, then I will
             16           so state.  Until then, the transcript
             17           should be designated confidential
             18           pursuant to the protective order in
             19           place in this case.
             20                  MR. GARBUS:  Do you want to state
             21           the basis for that?
             22                  MR. COOPER:  Not particularly,
             23           unless you believe that it is required
             24           under the order.
             25                  MR. GARBUS:  I think you are

                              INTERIM COURT REPORTING
                                                                   9
              1                         Jacobsen
              2           required to do that.
              3                  MR. COOPER:  I disagree with you.
              4           Just so you and I understand each other,
              5           the reasoning is that I believe that the
              6           MPAA's anti-piracy activities are not the
              7           business of the public while those
              8           activities are ongoing and that's the
              9           reason for my designation.
             10           Q.     Has the MPAA filed any specific suit
             11   against any one individual who has actually used
             12   deCSS to descramble a DVD?
             13           A.     I don't --
             14           Q.     Other than the California suit and
             15   this suit where no particular individual is named
             16   as having actually done the copying.
             17                  MR. COOPER:  Would you read back
             18           the question, please.
             19                  (Record read.)
             20                  MR. COOPER:  Objection as to form.
             21           I am not aware of any such California
             22           action.
             23           Q.     Do you know anything about a
             24   California action?
             25           A.     There is not a California action I

                              INTERIM COURT REPORTING
                                                                  10
              1                         Jacobsen
              2   am aware of that we filed.
              3           Q.     Do you know about the DVD action?
              4           A.     Yes.
              5           Q.     Can you tell me whether or not the
              6   MPAA has determined the name of any one person who
              7   has copied a DVD using deCSS?
              8           A.     I think it would be fair to say that
              9   I would be -- that I have no conclusive evidence
             10   that any one person has done that.
             11           Q.     Now, has the MPAA been investigating
             12   that for a period of time, that particular issue?
             13           A.     We have been -- I mean we have
             14   looked at sites on the internet which deal with
             15   deCSS.  Looking at those sites has not resulted in
             16   obtaining any evidence which I would feel
             17   comfortable in saying conclusively proves anyone
             18   has used it to copy a DVD.
             19                  There are individuals who are up on
             20   the internet who claim that that is what it should
             21   be used for and I have read at least one newspaper
             22   article where a reporter claimed that he had, in
             23   fact, used the utility to hack a DVD.
             24           Q.     Have you attempted to contact any of
             25   the people whose names you have seen on the

                              INTERIM COURT REPORTING
                                                                  11
              1                         Jacobsen
              2   internet who say that you can use deCSS to
              3   descramble DVDs?
              4                  MR. COOPER:  Assumes facts not in
              5           evidence.
              6           A.     If they were posting or linking, we
              7   would be sending them a C & D letter or sending the
              8   ISP, Internet Service Provider, a cease and desist
              9   letter.  And if we were able to identify who the
             10   party was that was actually up on the internet, we
             11   would also send a copy of the letter to them.
             12           Q.     Other than cease and desist letters,
             13   did you do anything further?
             14           A.     I don't believe we have.
             15           Q.     Did you get any responses from any
             16   of the cease and desist letters?
             17           A.     Yes, we have received responses.
             18           Q.     Written responses?
             19           A.     Yes.
             20           Q.     And e-mail responses?
             21           A.     Let me take that back.  It may have
             22   been e-mail responses.  I can't recall whether they
             23   came in in written form or in e-mail form.
             24   RQ             MR. GARBUS:  I would ask you to
             25           produce those, Mr. Cooper.

                              INTERIM COURT REPORTING
                                                                  12
              1                         Jacobsen
              2                  MR. COOPER:  I believe we have
              3           already produced a great many and are
              4           continuing to produce anymore that we
              5           find.
              6                  MR. GARBUS:  Thus far the answer
              7           is you produced none.
              8                  MR. COOPER:  I disagree with that,
              9           unless there is some misunderstanding
             10           about what the question elicited.  Are
             11           you saying that you have not received any
             12           of the cease and desist letters?
             13                  MR. GARBUS:  That wasn't the
             14           question.
             15                  MR. COOPER:  Then maybe there is a
             16           misunderstanding.
             17           Q.     Have you received any responses --
             18           A.     Yes.
             19                  MR. COOPER:  Wait.
             20           Q.     -- to the cease and desist letters?
             21                  MR. COOPER:  Let's get a whole
             22           question out.
             23                  MR. GARBUS:  Mr. Cooper, your
             24           witness understood.
             25                  MR. COOPER:  I am not satisfied

                              INTERIM COURT REPORTING
                                                                  13
              1                         Jacobsen
              2           that he did.  What responses are we
              3           talking about?  Are we talking about
              4           specifically C & D letters to people who
              5           came to have used deCSS to decrypt a DVD
              6           and make a copy from it?
              7           A.     No.
              8                  MR. GARBUS:  No.  He said he sent
              9           out cease and desist letters.  I have
             10           asked him with respect to those cease and
             11           desist letters did he receive any
             12           responses.
             13           Q.     You have said "yes"?  Is that
             14   correct?
             15           A.     That's correct.
             16   RQ             MR. GARBUS:  I now ask you to
             17           produce those responses and I tell you that
             18           we have not gotten any responses.
             19                  MR. COOPER:  I have looked at a
             20           number of documents that I understand
             21           have been produced to you which
             22           constitute responses.  It may be a
             23           misunderstanding on your part about what
             24           they consist of, but my understanding is
             25           that many have been provided.  If there

                              INTERIM COURT REPORTING
                                                                  14
              1                         Jacobsen
              2           are more, it is the intent to provide
              3           those, as well.  But what I have looked
              4           at would indicate that you are in error.
              5   BY MR. GARBUS:
              6           Q.     Did you determine whether any of the
              7   people you had sent the cease and desist letters to
              8   had actually copied a DVD using deCSS?
              9           A.     I have no actual knowledge that
             10   anybody has actually copied a DVD using deCSS.  As
             11   I said, I have read at least one newspaper article
             12   where a reporter claimed to do so.
             13           Q.     Tell me about that article.
             14           A.     I just generally remember that the
             15   reporter had utilized the utility to open the DVD,
             16   see how it worked.
             17           Q.     Do you recall what he said about his
             18   success or lack of success in using the utility?
             19           A.     My general recollection is that it
             20   worked, but it was difficult.
             21           Q.     Do you recall how long it took him
             22   to do it?
             23           A.     I don't recall specifically, but I
             24   recall it was lengthy.
             25           Q.     Do you recall him saying whether or

                              INTERIM COURT REPORTING
                                                                  15
              1                         Jacobsen
              2   not he lost the audio when he did it through a
              3   DivX?
              4           A.     I don't.
              5           Q.     Do you recall him indicating whether
              6   or not deCSS caused his computer to crash?
              7           A.     I don't.
              8           Q.     Do you know of anybody who has
              9   applied deCSS where the computer has not crashed?
             10                  MR. COOPER:  Assumes facts not in
             11           evidence.  Answer, if you can.
             12           A.     I don't think I personally know
             13   anyone that has used deCSS.
             14           Q.     At the MPAA, did you ask anybody or
             15   did the MPAA run any tests about the use of deCSS?
             16           A.     Not that I am aware of.
             17           Q.     Did the MPAA ever hire anybody to
             18   perform any tests to see the efficacy of deCSS in
             19   descrambling DVDs?
             20           A.     Not that I am aware of.
             21           Q.     To your knowledge, did any of the
             22   movie studios --
             23                  Let's just make one thing clear so I
             24   think Mr. Cooper and I can agree.  Pending a
             25   disqualification motion, I am not permitted to ask

                              INTERIM COURT REPORTING
                                                                  16
              1                         Jacobsen
              2   about Time Warner.  When I use "movie studios" or
              3   "plaintiffs," I am excluding Time Warner from that
              4   definition.  Can we have that agreement?
              5                  MR. COOPER:  We do have that
              6           agreement, yes.
              7           Q.     So anything you know about Time
              8   Warner, don't tell me.  In any way that Time Warner
              9   is different from any question or answer, don't
             10   tell me.
             11                  We have that agreement?
             12                  MR. COOPER:  We do have that
             13           agreement.
             14                  MR. GARBUS:  Off the record.
             15                  (Question read.)
             16           Q.     -- test deCSS to see whether or not
             17   it can be used to descramble a DVD?
             18           A.     I don't know.
             19           Q.     Now, you know what the broadband is?
             20           A.     Generally.
             21           Q.     Tell me what it is.
             22           A.     Broadband is a large volume capacity
             23   on the internet.  It is the ability to transmit
             24   huge amounts of data in a very fast period of time.
             25           Q.     How long has the broadband been with

                              INTERIM COURT REPORTING
                                                                  17
              1                         Jacobsen
              2   us?
              3                  MR. COOPER:  Lacks foundation.
              4           This witness, for the record, is not
              5           designated to testify about matters of
              6           general technology.
              7           A.     I don't know.
              8           Q.     To your knowledge, has a descrambled
              9   DVD ever been shown on the internet?  One that has
             10   been descrambled through deCSS.
             11           A.     I don't know of -- I have no
             12   specific knowledge of that occurring.
             13           Q.     To your knowledge, has anyone ever
             14   tried to transmit a descrambled DVD, descrambled
             15   through deCSS on the broadband?
             16                  MR. COOPER:  Assumes facts not in
             17           evidence.
             18           A.     I have no information that that has
             19   ever occurred.
             20           Q.     To your knowledge, has anyone ever
             21   tried to send a descrambled DVD, one that has been
             22   descrambled through deCSS, on a T1 line?
             23           A.     I have no knowledge.
             24                  MR. COOPER:  Same objection.
             25           Q.     Do you know what a T1 line is?

                              INTERIM COURT REPORTING
                                                                  18
              1                         Jacobsen
              2           A.     Generally.
              3           Q.     What is it?
              4           A.     It is a large capacity pipe which
              5   would allow you to send a lot of data in a quick
              6   period of time.
              7           Q.     Would your answer be the same with
              8   respect to a T3 line?
              9                  MR. COOPER:  Same objection.
             10           A.     Yes.
             11           Q.     With respect to a DSL line, do you
             12   know if anyone has ever used a DSL line to send a
             13   descrambled DVD, descrambled through deCSS?
             14                  MR. COOPER:  I don't know how
             15           anybody could know the method of
             16           transport that a particular user of the
             17           internet uses.  This witness isn't
             18           designated to testify as to such matters,
             19           but I will let him answer if he knows.
             20           A.     I don't know of any such instance.
             21           Q.     With respect to what Mr. Cooper
             22   said, namely that you can't tell the line of
             23   communication over which a descrambled DVD might
             24   pass, is there anyone at the MPAA who has tried to
             25   monitor that?  Namely, whether descrambled DVDs,

                              INTERIM COURT REPORTING
                                                                  19
              1                         Jacobsen
              2   descrambled through deCSS, are going out over any
              3   of these DSL, T1, T3, or broadband?
              4           A.     I'm sorry.  I lost the first part of
              5   the question.
              6                  MR. GARBUS:  Read back the
              7           question.
              8                  (Record read.)
              9           A.     If I understand the question, I
             10   don't know if there is anybody at MPAA or MPA who
             11   could determine what the source of transmission
             12   was.
             13           Q.     Is there anyone at any of the movie
             14   studios or plaintiffs who can?
             15           A.     I don't know that answer.
             16           Q.     Do you know if they have?
             17           A.     I don't.
             18           Q.     Do you know if they have tried to?
             19           A.     I don't.
             20           Q.     Do you know if anyone at the movie
             21   studios has ever seen a descrambled DVD,
             22   descrambled through deCSS, on the internet?
             23                  MR. COOPER:  I caution the witness
             24           to distinguish, in responding to this,
             25           between privileged and unprivileged

                              INTERIM COURT REPORTING
                                                                  20
              1                         Jacobsen
              2           sources of information, and not to
              3           provide a response with respect to
              4           privileged sources.
              5           A.     I don't.
              6           Q.     With respect to seeing a DVD
              7   descrambled through deCSS on the internet, do you
              8   know whether anyone at the movie studios or the
              9   MPAA has tried to send such a DVD over the
             10   internet?
             11           A.     I do not.
             12           Q.     Do you know whether anyone at the
             13   movie studios has ever learned the name of one
             14   single person who has attempted to copy a DVD
             15   through the descrambling by deCSS?
             16           A.     I don't know.
             17           Q.     Do you know if the movie companies
             18   have done any investigation into that question?
             19           A.     Independently of MPAA?
             20           Q.     Yes.
             21           A.     I'm not sure I understand the
             22   question.
             23  
             24                  Confidential                        
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                              INTERIM COURT REPORTING
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              2     
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              4     
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             23           Q.     Putting aside any conversations
             24   where you were involved with your lawyers or the
             25   MPAA lawyers or the lawyers for any of the

                              INTERIM COURT REPORTING
                                                                  26
              1                         Jacobsen
              2   plaintiffs in this case, did you have any
              3   conversations with any people at any of those
              4   studios who had ever known of one single instance
              5   of DVDs being descrambled through deCSS and a copy
              6   thereafter being made?
              7           A.     No.
              8           Q.     Have you asked these plaintiffs that
              9   question?  Namely, whether or not they knew of any
             10   single instance of a DVD being descrambled to make
             11   a copy, with the exception of any conversations
             12   that any lawyers were in any way involved in?
             13           A.     If I understand the question, you
             14   are asking me if I asked it outside of the context
             15   of a possible privilege?  No.
             16           Q.     Have you ever seen any documents
             17   from any of the plaintiffs that indicate whether or
             18   not they know of one single DVD being descrambled
             19   by deCSS?
             20           A.     No.
             21           Q.     Do you know whether they have such
             22   documents?
             23           A.     No.
             24           Q.     Do you know if they have ever made
             25   their own investigation into whether or not deCSS

                              INTERIM COURT REPORTING
                                                                  27
              1                         Jacobsen
              2   was ever used for descrambling a DVD?
              3           A.     No.
              4           Q.     After you saw the Toronto article,
              5   was there any attempt made by you or anyone acting
              6   on your behalf to contact the Toronto reporter?
              7                  MR. COOPER:  Assumes facts not in
              8           evidence.  I don't remember the witness
              9           identifying the Toronto article.
             10                  MR. GARBUS:  He did.
             11                  MR. COOPER:  As such, I think the
             12           witness testified that there was an
             13           article.
             14           Q.     Do you know where the article was?
             15           A.     I read it off the internet, but I
             16   don't recall which paper it was.
             17           Q.     Did you at any time try to contact
             18   the author of that article?
             19           A.     I did not.
             20           Q.     Do you know anybody at any of the
             21   plaintiffs or anybody acting on your behalf that
             22   did?
             23           A.     No.
             24           Q.     Did you try to determine whether or
             25   not after that article was printed anybody reading

                              INTERIM COURT REPORTING
                                                                  28
              1                         Jacobsen
              2   that article sought to descramble DVDs through
              3   using deCSS?
              4           A.     I do not, no.
              5           Q.     Can you just tell me approximately,
              6   in round numbers, the dollar value of the resources
              7   that the MPAA has used to determine whether or not
              8   deCSS is an effective descrambling tool for DVDs?
              9           A.     I'm not aware of any money we have
             10   spent to test whether or not it effectively
             11   descrambles.
             12           Q.     Have you -- by "you" I mean you or
             13   the MPAA -- produced or prepared any documents
             14   concerning the amount of the use of deCSS over any
             15   communication system, whether it be T1, T3, DSL, or
             16   broadband at any time in the future?
             17                  MR. COOPER:  Read back the
             18           question, please.
             19                  (Record read.)
             20                  MR. COOPER:  I object as to the
             21           form of the question.  Unintelligible and
             22           ambiguous.
             23           Q.     Do you understand it?
             24           A.     No.
             25           Q.     Have there been any projections made

                              INTERIM COURT REPORTING
                                                                  29
              1                         Jacobsen
              2   orally or in writing by you or anyone at the MPAA
              3   for the potential use of deCSS to make copies of
              4   DVDs in the future?
              5                  MR. COOPER:  That's a "yes" or
              6           "no" question.
              7           A.     Not that I am aware of.  No.
              8           Q.     Have there been any studies made to
              9   determine the potential use on the broadband of
             10   individuals attempting to descramble DVDs through
             11   the use of deCSS?
             12           A.     I'm sorry, but I didn't understand
             13   the question.
             14                  MR. GARBUS:  Read the question
             15           back.
             16                  (Record read.)
             17           A.     Studies by who?  I'm sorry.
             18           Q.     You.
             19           A.     Regarding the attempted use?
             20           Q.     For example, is there any document
             21   which would say, we expect that over the broadband
             22   in the next ten years or the next one year, that
             23   deCSS will be transmitted and we may see X number
             24   of DVDs unscrambled in that way?
             25           A.     No.

                              INTERIM COURT REPORTING
                                                                  30
              1                         Jacobsen
              2           Q.     In other words, let me just make it
              3   clear what I am talking about.  I will give you the
              4   general scope.
              5                  I am now trying to look towards the
              6   future and I am trying to determine whether or not
              7   you, the MPAA, the movie studios, have any
              8   documents or any oral conversations you can tell me
              9   about, about the potential impact of actual copies
             10   of DVDs that are unscrambled through deCSS.  Are
             11   there such studies?
             12           A.     Not that I am aware of.
             13                  MR. COOPER:  Your question
             14           included oral discussions and then the
             15           clarification at the end, studies.  You
             16           are looking at studies?
             17           Q.     Let's look at three things.  Oral
             18   conversations where lawyers are involved, oral
             19   conversations where no lawyers are involved, and
             20   then any studies or reports concerning that subject
             21   matter.
             22           A.     Okay.
             23           Q.     Are there any studies that you have
             24   seen done by the MPAA or any of the other
             25   plaintiffs concerning the future use, potential use

                              INTERIM COURT REPORTING
                                                                  31
              1                         Jacobsen
              2   of deCSS to copy DVDs?
              3           A.     No.
              4           Q.     I ask you the same thing with
              5   respect to reports.
              6           A.     No.
              7           Q.     I ask you the same thing with
              8   respect to oral conversations that take place
              9   without lawyers being around or involved.
             10           A.     No.
             11           Q.     Do you know what a DVD burner is?
             12           A.     I have a general understanding.
             13           Q.     What is your general understanding?
             14           A.     It would be a device which would
             15   allow you to copy a DVD from your hard drive.
             16           Q.     Have there been any studies made by
             17   you -- let's save some time.
             18                  When I say "you" now, I am talking
             19   about you, the MPAA, or the movie, that you know
             20   of.  Every time I use the word "you," then, in the
             21   next few questions, it implies that entire
             22   universe.
             23                  MR. GARBUS:  Read back my question
             24           so far.
             25                  (Record read.)

                              INTERIM COURT REPORTING
                                                                  32
              1                         Jacobsen
              2           Q.     -- as to the potential future use of
              3   DVD burners to copy DVDs?
              4           A.     The fact that a DVD burner may exist
              5   or will exist has been the subject of discussion.
              6           Q.     Do you know if it exists today?
              7           A.     I believe that it has been
              8   developed, yes.
              9           Q.     Do you know what they cost?
             10           A.     I don't know precisely, but my
             11   understanding is they are still quite expensive.
             12           Q.     Between $5,000 and $10,000?
             13           A.     Possibly.
             14           Q.     Have you made any studies or reports
             15   or had any oral conversations, excluding oral
             16   conversations where lawyers are present, discussing
             17   the potential use of DVD burners to show copies of
             18   DVDs?
             19           A.     I don't understand the question,
             20   because I don't understand a burner that would be
             21   something that would show a copy of a DVD.
             22           Q.     What does a burner do?
             23           A.     Makes a copy of a DVD.
             24           Q.     Do you have any studies -- by "you"
             25   I mean all the plaintiffs -- about the potential

                              INTERIM COURT REPORTING
                                                                  33
              1                         Jacobsen
              2   copies that can be made in the future through the
              3   use of DVD burners?
              4           A.     I don't know of any specific written
              5   reports or studies.
              6           Q.     Do you have any knowledge of any
              7   individual consumers using DVD burners to make a
              8   single copy for themselves of a DVD?
              9           A.     No.
             10           Q.     Have you or the MPAA retained any
             11   outside experts on the deCSS question, other than
             12   Robert Schumann?
             13           A.     Can I --
             14                  MR. COOPER:  Can you answer that
             15           question from general knowledge?  That
             16           is, other than from what you have
             17           discussed with attorneys.
             18                  THE WITNESS:  I think I probably
             19           cannot.
             20   BY MR. GARBUS:
             21           Q.     So you can't tell me, as you sit
             22   here today, whether or not the MPAA has retained
             23   any other experts with respect to the deCSS area?
             24                  MR. COOPER:  From nonprivileged
             25           sources?

                              INTERIM COURT REPORTING
                                                                  34
              1                         Jacobsen
              2                  MR. GARBUS:  From nonprivileged
              3           sources.
              4           Q.     Is that right?
              5           A.     That's correct.
              6           Q.     Have you seen any exchange of
              7   correspondence, excluding privileged documents, if
              8   in fact a privilege applies, between the MPAA and
              9   any of the studios concerning the use of deCSS?
             10           A.     I'm sorry.  Could you repeat the
             11   first part of the question?
             12                  MR. GARBUS:  Read it back.
             13                  (Record read.)
             14                  MR. COOPER:  Read it back.
             15                  (Record read.)
             16           A.     Excluding privileged documents, no.
             17           Q.     When you say "privileged documents,"
             18   are you referring to documents exchanged directly
             19   by the MPAA with lawyers and documents exchanged
             20   between the movie studios and lawyers or you are
             21   also referring to documents exchanged between the
             22   movie studios and the MPAA without lawyers?
             23                  MR. COOPER:  Do you understand the
             24           question?
             25                  THE WITNESS:  Yes, I understand

                              INTERIM COURT REPORTING
                                                                  35
              1                         Jacobsen
              2           the question.
              3           A.     I am referring to documents -- the
              4   two former that you set up.  Documents between
              5   lawyers and the studios and the studios and the
              6   lawyers.
              7           Q.     Have you seen any documents between
              8   the MPAA and the studios, nonlawyer documents, that
              9   refer in any way to deCSS?
             10           A.     Not that I can recall.
             11                  MR. GARBUS:  Let's mark this as
             12           the next exhibit.
             13                  (Defendants' Exhibit 11, three-page
             14           letter, dated May 15, 2000, marked for
             15           identification, as of this date.)
             16   RQ             MR. GARBUS:  Mr. Cooper, I show you
             17           Defendant's Exhibit 11, which is addressed
             18           to Carla Miller, copied to Leon Gold.  We
             19           had a conversation Monday about the
             20           production of documents for today and he
             21           asked that we send him a letter and I asked
             22           whether or not you have any of those
             23           documents here with you today.
             24                  MR. COOPER:  My understanding of
             25           the conversation that led up to this

                              INTERIM COURT REPORTING
                                                                  36
              1                         Jacobsen
              2           letter is a little different than what
              3           you just described.  My understanding was
              4           that Mr. Gold made a general suggestion
              5           to you, that you give an itemization of
              6           documents you were seeking and offered to
              7           respond to that itemization.  I didn't
              8           understand the conversation to be
              9           directly focused on this witness'
             10           appearance here today or that the
             11           documents described would be provided
             12           today.
             13                  I note, although this is the
             14           first time I have seen the letter
             15           personally, that most of them focus on
             16           Mr. Schumann's testimony as opposed to
             17           Mr. Jacobsen's.  I do not have any
             18           additional documents to produce in
             19           response to this letter as we sit here.
             20                  Now that you have drawn it to my
             21           attention, I will investigate where we
             22           stand in response to it and I will let
             23           you know.
             24                  MR. GARBUS:  Thank you very much.
             25   BY MR. GARBUS:

                              INTERIM COURT REPORTING
                                                                  37
              1                         Jacobsen
              2           Q.     Were you involved in any way in the
              3   preparation of the cease and desist letters?
              4           A.     In my position, I have general
              5   oversight authority for the fact that we have a
              6   program that would send cease and desist letters.
              7   But no, the actual construction of the letter
              8   itself would have been done by our attorneys.
              9           Q.     Proskauer?
             10           A.     No.  Our in-house attorneys.
             11   Mr. Litvack would have overseen the project.
             12           Q.     You are the senior vice president
             13   and director for worldwide anti-piracy; is that
             14   right?
             15           A.     That is correct.
             16           Q.     Are you a lawyer?
             17           A.     Yes, I am.
             18           Q.     How long have you been practicing?
             19                  MR. COOPER:  Assumes facts not in
             20           evidence.  Answer it.
             21           A.     I actually have never practiced.
             22                  MR. GARBUS:  Off the record.
             23                  (Discussion off the record.)
             24   BY MR. GARBUS:
             25           Q.     How long have you been at the MPAA?

                              INTERIM COURT REPORTING
                                                                  38
              1                         Jacobsen
              2           A.     I have been employed by the MPAA
              3   since January 2nd of 1995.
              4           Q.     Can you tell me generally what your
              5   duties include?
              6                  MR. COOPER:  Today or from the
              7           beginning?
              8                  MR. GARBUS:  Today.
              9           A.     Today I have oversight
             10   responsibility for our entire worldwide anti-piracy
             11   program.  We are active in approximately 67
             12   countries and I have responsibility for overseeing
             13   how that program runs, the strategies that are
             14   developed, the budget that is put together and
             15   submitted to the members on an annual basis for
             16   funding, correspondence about the program to the
             17   member companies and their representatives, hiring
             18   and firing.  All of the management decisions that
             19   are made regarding that program.
             20 
             21 
             22                     Confidential 
             23 
             24 
             25 

                              INTERIM COURT REPORTING
                                                                  39
              1 
              2 
              3 
              4                     Confidential 
              5 
              6 
              7 
              8 
              9 
             10 
             11 
             12 
             13 
             14 
             15 
             16 
             17 
             18 
             19 
             20 
             21 
             22 
             23 
             24 
             25 

                              INTERIM COURT REPORTING
                                                                  40
              1                     Confidential  
              2  
              3  
              4  
              5  
              6  
              7  
              8  
              9  
             10  
             11  
             12  
             13  
             14  
             15  
             16  
             17  
             18  
             19  
             20  
             21  
             22  
             23  
             24  
             25  

                              INTERIM COURT REPORTING
                                                                  41
              1                     Confidential  
              2  
              3  
              4  
              5  
              6  
              7  
              8  
              9  
             10  
             11  
             12           Q.     How long have you had this position?
             13           A.     I was promoted the 1st of April of
             14   this year and I occupied the position sort of co
             15   with my predecessor until he left April 21st, and
             16   then I took over.
             17           Q.     Prior to that what was your
             18   position?
             19           A.     Prior to that, for two years I was
             20   the vice president and director of the U.S.
             21   anti-piracy program.
             22           Q.     In all that time, have any one of
             23   these people who were your employees ever told you
             24   that they had ever seen a copy of a DVD descrambled
             25   by deCSS?

                              INTERIM COURT REPORTING
                                                                  42
              1                         Jacobsen
              2                  MR. COOPER:  Exclude from that
              3           those people who operate as attorneys, as
              4           you have described them.
              5           A.     Not conclusively.
              6           Q.     When you say "not conclusively," did
              7   any one of them ever tell you that they had learned
              8   the name of one single person who had ever copied a
              9   DVD through the use of the descrambling --
             10   descrambling through deCSS?
             11                  MR. COOPER:  Asked and answered.
             12                  MR. GARBUS:  Different question.
             13           A.     Not conclusively, no.
             14           Q.     When you say "not conclusively," did
             15   you ask your office -- and by "your office" I mean
             16   either the office you held before April 1st or the
             17   people under your direction after April 1st.
             18                   -- whether they could find a single
             19   copy of a DVD that had been descrambled through
             20   deCSS or the name of a single individual who had
             21   used deCSS who descrambled a DVD?
             22                  MR. COOPER:  Could I just, just
             23           for simplicity so I don't interrupt your
             24           questions and the witness' answer, can we
             25           have a running understanding that you

                              INTERIM COURT REPORTING
                                                                  43
              1                         Jacobsen
              2           mean to exclude the conversations with
              3           those people the witness has identified
              4           as operating as attorneys?
              5                  MR. GARBUS:  Absolutely.
              6           A.     I have never asked the question in
              7   that fashion.
              8           Q.     What is the question that you have
              9   asked?
             10           A.     I have asked people that are in our
             11   employment structure whether or not they can
             12   identify the source of unauthorized DVDs that we
             13   have located.
             14           Q.     Has anyone ever told you that deCSS
             15   was the source?
             16           A.     Conclusively?  No.
             17           Q.     Have you tried to make a conclusive
             18   determination as to whether or not any of these
             19   copies of DVDs came from the use of deCSS?
             20           A.     In every instance where we analyze
             21   for source we would try to make a determination
             22   about what the original source of the product would
             23   be, deCSS would be one of those possibilities.
             24           Q.     And you never were able to determine
             25   that one single one ever came through deCSS?

                              INTERIM COURT REPORTING
                                                                  44
              1                         Jacobsen
              2           A.     To be perfectly honest, I am not
              3   even certain that that can be done.  We don't
              4   know -- I don't know whether or not deCSS leaves an
              5   identifiable mark when it is used to descramble a
              6   DVD.  But we are, in fact, looking at some DVDs and
              7   trying to make a determination about what the
              8   source is.
              9           Q.     Just going back, at the present
             10   time, you can't tell me that you have seen one copy
             11   of a DVD that has definitely been made as a result
             12   of the deCSS descrambling?
             13           A.     That's correct.
             14           Q.     At the present time, you can't tell
             15   me that you know the name of one person who has
             16   descrambled a DVD through deCSS to make a copy?
             17           A.     I know people have claimed that.  I
             18   cannot conclusively tell you that what they are
             19   claiming is accurate.
             20           Q.     Other than the claims and other than
             21   the article in the newspaper, do you know the name
             22   of one person who you have determined has made such
             23   a copy?
             24           A.     No.
             25           Q.     When you say "people claim," you are

                              INTERIM COURT REPORTING
                                                                  45
              1                         Jacobsen
              2   talking about people who claim this in internet
              3   postings?
              4           A.     That is correct.
              5           Q.     Did the internet postings frequently
              6   give you the name of the poster who posts that
              7   information?
              8                  MR. COOPER:  Those particular
              9           postings?
             10                  MR. GARBUS:  Yes.
             11           A.     It would depend.
             12           Q.     Sometimes you know personally the
             13   site from which it comes?
             14           A.     That would be correct.
             15           Q.     Have you ever gone to the site or
             16   tried to further investigate into those people who
             17   claim, according to you, that they have made DVDs
             18   through the use of deCSS descramblers?
             19           A.     I think one of the original
             20   defendants in this case claimed that on his
             21   website.
             22           Q.     Claimed that he had made it?
             23           A.     Yes.  Or that copies were being
             24   made.
             25           Q.     He claimed that copies were being

                              INTERIM COURT REPORTING
                                                                  46
              1                         Jacobsen
              2   made.  Did you ever determine whether that was true
              3   or not?
              4           A.     No.
              5           Q.     In other words, did you ever make a
              6   distinction or did you ever determine the
              7   difference between rhetoric, bragging, polemics,
              8   and the actual making of a copy of a DVD through
              9   the use of deCSS?
             10                  MR. COOPER:  I object to the
             11           characterization and the form of the
             12           question.  I'm not sure it is a fair
             13           characterization of what the witness has
             14           referred to, to refer to it as rhetoric,
             15           polemics, and so on.
             16                  If the question is has the
             17           witness distinguished or attempted to
             18           distinguish between names and copying,
             19           in fact, I think you can answer that
             20           question.
             21           Q.     Go ahead.
             22           A.     I'm sorry.  Was the question have I
             23   attempted to distinguish or have I been able to?
             24                  MR. GARBUS:  We will take it with
             25           Mr. Cooper's modification.

                              INTERIM COURT REPORTING
                                                                  47
              1                         Jacobsen
              2           A.     Which is attempted?
              3                  MR. GARBUS:  Read back the whole
              4           conversation.
              5                  (Record read.)
              6           A.     I have been unable to determine
              7   whether or not any copies were actually made or
              8   people were just claiming to do it without having
              9   done so.
             10           Q.     Did anyone on any of these postings
             11   give you the specific name of a film or DVD that
             12   they had succeeded in descrambling through the use
             13   of deCSS?
             14           A.     I don't recall.
             15           Q.     Would your recollection be that they
             16   spoke in general terms and said, "I've done it" or
             17   "I will do it" or "You can do it," rather than
             18   saying I have done it with respect to a particular
             19   film, on a particular date, in a particular place?
             20                  MR. GARBUS:  Off the record.
             21                  (Discussion off the record.)
             22           A.     I don't recall.
             23           Q.     Do you recall the name of one single
             24   title that anyone has ever claimed they have ever
             25   been able to copy through the use of deCSS?

                              INTERIM COURT REPORTING
                                                                  48
              1                         Jacobsen
              2                  MR. COOPER:  I'm not sure how to
              3           distinguish that from your prior
              4           question.
              5           A.     No.
              6           Q.     With respect to the people who have
              7   used what I have called polemics, have you
              8   determined through investigation the names of these
              9   people and where they live?
             10           A.     If you are asking me the people that
             11   have shown up on the web who have made these
             12   claims, the answer is we have not determined who
             13   they are or where they live, to my knowledge.
             14           Q.     Have you attempted to do so?
             15                  MR. COOPER:  You are
             16           distinguishing the current defendant
             17           which the witness has already said they
             18           identified and who he believed to have
             19           made some such claims?
             20                  MR. GARBUS:  Emmanuel Goldstein?
             21                  MR. COOPER:  Eric Corley.
             22                  MR. GARBUS:  Off the record.
             23                  (Discussion off the record.)
             24                  MR. GARBUS:  Where are we?
             25                  (Record read.)

                              INTERIM COURT REPORTING
                                                                  49
              1                         Jacobsen
              2                  MR. COOPER:  Exclude conversations
              3           with counsel as a source for the answer
              4           to that last question.
              5           A.     If they were the target of a C & D
              6   letter or a cease and desist letter, we would have
              7   done some preliminary investigation to see if we
              8   can determine an address where we can send a copy
              9   of the letter to.
             10                  MR. COOPER:  Is this an
             11           appropriate time to take a brief break?
             12                  MR. GARBUS:  If you would like.
             13                  (Recess taken.)
             14                  MR. GARBUS:  Please mark this as
             15           an exhibit.
             16                  (Defendants' Exhibit 12, four-page
             17           document titled "1st Story of Level 1
             18           printed in Full Format, Copyright 2000
             19           Toronto Star Newspapers, Ltd. The Toronto
             20           Star," marked for identification, as of
             21           this date.)
             22                  (Recess taken.)
             23   BY MR. GARBUS:
             24           Q.     Mr. Jacobsen, do you know of any
             25   technology now known but not yet created or

                              INTERIM COURT REPORTING
                                                                  50
              1                         Jacobsen
              2   anticipated that can use deCSS to descramble DVDs?
              3                  MR. COOPER:  Would you read back
              4           the question.
              5                  (Record read.)
              6           Q.     -- and make copies?
              7                  MR. COOPER:  I find the question
              8           terribly confusing.  I think it assumes
              9           facts not in evidence.
             10           Q.     Go ahead.
             11           A.     I don't understand the question,
             12   because my understanding is deCSS allows you to
             13   decrypt a DVD and then copy it to your hard drive.
             14           Q.     Once it is on the hard drive, it is
             15   on the hard drive in descrambled form or scrambled
             16   form?
             17           A.     I believe it's in the unscrambled
             18   form.
             19           Q.     So you believe that once it goes
             20   onto your hard drive you can immediately show it on
             21   your video monitor?
             22                  MR. COOPER:  This witness is not
             23           here to testify on the technical aspects
             24           of deCSS.
             25           Q.     Is that your understanding?

                              INTERIM COURT REPORTING
                                                                  51
              1                         Jacobsen
              2           A.     That is my understanding.
              3           Q.     So that once you put it on your hard
              4   drive it is there and all you have to do is push a
              5   button and you can watch it on your computer?
              6                  MR. COOPER:  That probably
              7           misstates the technological aspects of
              8           what it requires to make it happen and
              9           this witness is not here for this
             10           purpose.
             11           Q.     Go ahead.
             12           A.     I misspoke.  I mean there would have
             13   to be some sort of media player associated with the
             14   computer.  But my understanding is if it is an
             15   unscrambled format, you would need a software
             16   program that would allow you to play it on a
             17   computer.
             18           Q.     What kind of software program would
             19   that be?
             20           A.     A media player, Windows media
             21   player.
             22           Q.     Other than the broadband lines, the
             23   T1 lines, the T3 lines or the DSL, or the regular
             24   telephone lines, do you know of any other method of
             25   transmission of deCSS to unscramble DVDs?

                              INTERIM COURT REPORTING
                                                                  52
              1                         Jacobsen
              2                  MR. COOPER:  Again, this witness
              3           isn't here to testify on the
              4           technological matters.  I think you have
              5           misstated the function of deCSS and
              6           misstated, as well, what the various
              7           methods of transmission for access to the
              8           internet are.  With those objections, if
              9           the witness can answer the question, I
             10           will allow him to do so.
             11           A.     I didn't understand the question.
             12           Q.     Other than DSL lines, telephone
             13   lines, T1, T3, or the broadband, do you know of any
             14   other technology that permits for the sending of
             15   decrypted DVD movies?
             16           A.     Sending them where?  I don't
             17   understand the question.
             18           Q.     From one person to another.
             19           A.     Computer to computer?
             20           Q.     Yes.
             21           A.     I mean I would suppose there is no
             22   reason why someone couldn't put it on a disk and
             23   put it into your computer disk to disk.  I don't
             24   know the answer.
             25           Q.     There are various different ways or

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   cables or pathways that you can have piracy on.
              3   One of the present pathways are DSL, another one is
              4   T1, another one is T3, another one is broadband.
              5                  Can you tell me whether there is any
              6   other pathway that you know of?
              7                  MR. COOPER:  You have used a
              8           variety of different references as you
              9           have asked this question.  I will note
             10           that my understanding of broadband might
             11           differ from yours.
             12                  MR. GARBUS:  We might call
             13           broadband T3.
             14           Q.     Whatever interpretation you take of
             15   broadband, can you answer that question?  If you
             16   want to give me several different interpretations
             17   of broadband, just give it to me.
             18           A.     There is a whole developing field of
             19   wireless communication that you didn't mention,
             20   which I assume would be a method to also transmit
             21   information from computer to computer.
             22           Q.     Thus far, have you determined
             23   whether or not decrypted DVD movies have been sent
             24   over the wireless?
             25           A.     I have not.

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              1                         Jacobsen
              2           Q.     Do you know if that is possible?
              3                  MR. COOPER:  To determine --
              4                  MR. GARBUS:  -- whether that can
              5           be done.
              6           A.     I would assume it would be possible
              7   to determine.  It could be done.  I don't have the
              8   technical ability myself to make that
              9   determination.
             10           Q.     Has anyone at the MPAA, to your
             11   knowledge, made any technological determination
             12   with the use of the wireless with respect to
             13   decrypted DVD movies?  How long it would take, how
             14   it would be done, or any of the mechanics of it.
             15                  MR. COOPER:  Assumes facts not in
             16           evidence.
             17           Q.     Go ahead, Mr. Jacobsen.
             18           A.     If you are asking me if I know of
             19   any studies that have been undertaken to determine
             20   how long it would take to transmit from one
             21   computer to another, the answer is know.
             22           Q.     Let me show you Exhibit 12 and ask
             23   whether or not that is the article that you saw.
             24           A.     (Witness reviewed document.)
             25                  I'm not 100 percent sure, but it

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              1                         Jacobsen
              2   could be.  I mean it rings a bell.
              3           Q.     Do you want to just take a look at
              4   it for another minute?
              5           A.     (Witness complied with request.)
              6           Q.     Is this the article that you read?
              7           A.     I don't remember.  It could be.
              8           Q.     This article is dated May 4th,
              9   according to the printout that I have.  Is this the
             10   first time that you learned that anybody had tried
             11   to use deCSS to make a copy of a DVD?  I believe
             12   that was your testimony before, that the first time
             13   you ever heard of anyone actually trying to make a
             14   copy was when you saw the article.
             15                  MR. COOPER:  First of all, the
             16           witness can't identify this as the
             17           article, so the reference to the date
             18           isn't terribly meaningful.  But I think,
             19           as well, you are misunderstanding his
             20           prior testimony.
             21   BY MR. GARBUS:
             22           Q.     Go ahead, Mr. Jacobsen.  Why don't
             23   you again straighten us both out.
             24           A.     I think what I said was I read an
             25   article by a news reporter who claimed he had done

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              1                         Jacobsen
              2   it and I have also been made aware of website
              3   locations or internet locations where people make
              4   the same claim.  Perhaps not in the detail that the
              5   reporter did, but claiming they have done it.
              6           Q.     And in the website where people
              7   claim that they have done it, have they told you,
              8   do you remember, anything about how long it took
              9   them to do it?
             10           A.     I don't recall.
             11           Q.     Do you recall whether they say they
             12   did it successfully?
             13           A.     I don't recall that that discussion
             14   occurred.  It is just the statement that it had
             15   been done.
             16           Q.     Do you recall anything about the
             17   quality of the DVD that they claim had been copied?
             18           A.     I don't.
             19           Q.     Can you produce copies or any
             20   information concerning those websites?
             21           A.     Well, the one, as I did state, was a
             22   prior defendant in this case, Mr. Reimerdes, he had
             23   posted it on his --
             24           Q.     Other than Mr. Reimerdes, do you
             25   know of anyone else who has ever claimed to have

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              1                         Jacobsen
              2   done it?
              3           A.     I have not actually seen the sites
              4   myself.  I have been informed by members of my
              5   staff that those claims have been made.
              6           Q.     Have you downloaded the printed
              7   material from those sites?
              8           A.     I have not.
              9           Q.     Has your staff?
             10           A.     I don't know that answer.
             11   RQ      Q.     Will you find that out?  And if you
             12   have, will you please give me the printed material?
             13   If you don't have the printed material, will you
             14   give me any other documentation that you have
             15   indicating the names of the websites, the names of
             16   the people, if you have them, who allegedly claim
             17   that you can do it or should do it or had done it,
             18   and their addresses?
             19                  MR. COOPER:  We will take the
             20           request under advisement.
             21           Q.     So as you sit here today, the only
             22   person that you know who ever claimed that they had
             23   copied a DVD through deCSS is Reimerdes; is that
             24   right?
             25           A.     And apparently the reporter in this

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              1                         Jacobsen
              2   (indicating).
              3           Q.     Two people.
              4                  MR. COOPER:  The witness was
              5           referencing Exhibit 12.
              6           Q.     Do you know whether Reimerdes had
              7   actually ever done it?
              8           A.     I do not.
              9           Q.     Did anyone ever question him to see
             10   whether he had done it?
             11           A.     I don't know.
             12           Q.     So you don't know whether, again, he
             13   was exaggerating or distorting it or whether he had
             14   actually done it?
             15           A.     That's correct.
             16
             17
             18                     Confidential
             19
             20
             21
             22
             23
             24
             25

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              1                     Confidential
              2
              3
              4
              5
              6
              7
              8
              9
             10
             11
             12
             13
             14
             15
             16
             17
             18
             19
             20
             21
             22
             23
             24
             25

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              1                     Confidential
              2
              3
              4
              5
              6
              7
              8
              9
             10
             11
             12
             13
             14
             15
             16
             17
             18
             19
             20
             21
             22
             23           Q.     But you can tell me that in trying
             24   to determine the source of all of the pirated
             25   copies that the MPAA has seen, you are able to say

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              1                         Jacobsen
              2   conclusively that any one copy ever came from a
              3   deCSS?
              4                  MR. COOPER:  That he has
              5           previously answered.
              6           Q.     Is that right?
              7           A.     That is correct.
              8           Q.     How long have you been trying to
              9   determine the sources of pirated material?  I
             10   presume for as long as you have been involved in
             11   this venture of anti-piracy.
             12           A.     Your presumption would be correct.
             13   In the five years, five plus months that I have
             14   worked there, that has always been something that I
             15   have tried to do.
             16           Q.     So it is fair to say that in the
             17   last year, to your knowledge, no one has been ever
             18   able to attribute a copied DVD to a deCSS source?
             19                  MR. COOPER:  I think your use of
             20           it, the last year of your time frame is
             21           misleading.  I am not aware that deCSS
             22           has existed for a year.
             23           Q.     To your knowledge, how long has
             24   deCSS existed?
             25           A.     I became aware of it either in

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              1                         Jacobsen
              2   October or November of 1999.
              3           Q.     Since October or November of 1999,
              4   have you ever determined that one single copy has
              5   ever been made through the use of deCSS?
              6                  MR. COOPER:  Asked and answered.
              7           A.     I have no conclusive evidence that
              8   has ever occurred.
              9           Q.     When you say "conclusive," do you
             10   have any inconclusive evidence?
             11                  MR. COOPER:  Asked and answered.
             12           Q.     The only inconclusive evidence is
             13   the newspaper article?
             14                  MR. COOPER:  Mischaracterizes the
             15           witness' testimony.
             16           Q.     What is the inconclusive evidence?
             17                  MR. COOPER:  Asked and answered.
             18           A.     Would be claims made by people that
             19   they have done so.
             20   RQ             MR. GARBUS:  Mr. Cooper, we
             21           anticipate going to trial in this case.  I
             22           would ask that if between now and the trial
             23           of that case there is any information about
             24           deCSS as a source of a particular pirated
             25           copy, that that information be furnished to

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              1                         Jacobsen
              2           me as part of the document request.
              3                  In other words, I would not want the
              4           document request either with respect to
              5           pirated copies or different technologies
              6           that carry deCSS or decrypted DVDs to be
              7           limited solely to the time of the
              8           deposition, but if you get additional
              9           documents with respect to any of the
             10           questions that I have asked this witness
             11           and you agree to produce files up to
             12           today's date, I would like to make that
             13           request for the documents for the date
             14           going forward to the date of trial.
             15                  Off the record.
             16                  MR. COOPER:  I note the request.
             17           We will take it under advisement.
             18           Q.     Did you ever contact the newspaper
             19   in which you saw the article, whether it be this
             20   article or a different article, and advise the
             21   newspaper not to run articles about the method of
             22   making decrypted movies from deCSS?
             23                  MR. COOPER:  Would you read it
             24           back, please.
             25                  (Record read.)

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              1                         Jacobsen
              2           A.     I never contacted the writer of the
              3   newspaper article that I read.
              4           Q.     Did you ever determine whether or
              5   not those newspapers ever got a response, letters,
              6   or comments, either orally or in writing, to the
              7   author's article where he claimed that he had used
              8   deCSS to make copies of DVDs?
              9           A.     I'm sorry.  Did you ask if I ever --
             10                  MR. GARBUS:  Off the record.
             11                  (Discussion off the record.)
             12           A.     I never contacted the newspaper, at
             13   all.
             14           Q.     Has anyone ever told you about the
             15   quality of DVD movie that has been decrypted
             16   through the use of deCSS?
             17           A.     No.
             18           Q.     So we can't get into a discussion
             19   about good quality, bad quality, poor quality,
             20   terrific quality, because that is not something you
             21   have any knowledge of?
             22           A.     That's correct.
             23           Q.     Do you have on your staff people who
             24   are "technical people" who know how long it would
             25   take to upload a gigabyte?

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              1                         Jacobsen
              2                  MR. COOPER:  A gigabyte of data?
              3                  MR. GARBUS:  Yes.
              4                  MR. COOPER:  Onto another site on
              5           the internet?
              6                  MR. GARBUS:  Yes.
              7           A.     I have someone on my staff who is
              8   conversant with the internet.
              9           Q.     Who is that?
             10  
             11  
             12  
             13  
             14                     Confidential  
             15  
             16  
             17  
             18  
             19  
             20  
             21  
             22  
             23  
             24  
             25  

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              1                  Confidential
              2  
              3  
              4  
              5  
              6  
              7  
              8  
              9  
             10  
             11  
             12  
             13  
             14  
             15  
             16  
             17  
             18  
             19  
             20  
             21  
             22  
             23  
             24           Q.     Let me show you the last line of
             25   Paragraph 21, at Page 8 of the affidavit of John

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   Gilmore and ask whether you have any information
              3   about whether or not that sentence is accurate.
              4                  MR. COOPER:  The attention --
              5           Q.     "Using the internet to send or sell
              6   copies of stored movies is particularly
              7   unreasonable:  Uploading a single gigabyte over a
              8   56K modem would take about 40 hours.  So, an entire
              9   DVD would take many days."
             10                  Do you have the technical knowledge
             11   to pass judgment on the accuracy of that statement?
             12                  MR. COOPER:  I will note that he
             13           is not here to testify on such matters.
             14           Q.     Go ahead.
             15           A.     I would assume he is correct, but
             16   the majority of the people that we are concerned
             17   about are not using 56K modem.
             18           Q.     What are they using?
             19           A.     They are using either broadband or a
             20   T1, a T3, a university system.
             21           Q.     How long would it take over T1?
             22           A.     I don't know the answer.  It would
             23   be significantly less than this.
             24           Q.     How long would it take over T3?
             25           A.     I don't know the answer.

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              1                         Jacobsen
              2           Q.     How long would it take over
              3   broadband?
              4           A.     I don't know the answer.
              5           Q.     Does anybody at the MPAA know?
              6           A.     I think all of those factors vary
              7   upon the size of the file that you are dealing
              8   with, how busy the particular pipe is at the
              9   particular time you are trying to use it.  But yes,
             10   we would have rough estimates of what the time
             11   frame would be.
             12   RQ             MR. GARBUS:  Would you produce that
             13           information?
             14                  MR. COOPER:  The fact that they
             15           could estimate it doesn't mean that they
             16           do have estimates in existence.
             17           Q.     Have you estimated it?
             18           A.     In general discussion perhaps, but I
             19   don't recall ever producing a written document that
             20   sets up those estimates.
             21           Q.     No pieces of paper?
             22           A.     That's correct.
             23           Q.     Have you heard of anybody ever
             24   trying to use the broadband to send a decrypted DVD
             25   movie?

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              1                         Jacobsen
              2           A.     I think I have already testified,
              3   outside of the fact that people have claimed they
              4   have used DVD deCSS, I am unaware of anybody
              5   actually transmitting it or actually decrypting a
              6   DVD.
              7           Q.     Before you said that the mere
              8   transmission of deCSS is piracy.  Is that right?
              9           A.     What I suggested was the posting for
             10   trafficking or trafficking in deCSS, I would
             11   consider it to be within the term "piracy," as I
             12   used the term "piracy" in my program.
             13                  MR. GARBUS:  Can I hear the answer
             14           again?
             15                  (Record read.)
             16           Q.     How about the postings, if for
             17   reasons other than trafficking?  As, for example,
             18   on university sites?
             19                  MR. COOPER:  Calls for a legal
             20           conclusion and assumes facts not in
             21           evidence.
             22           Q.     Go ahead.  Can you answer the
             23   question?
             24           A.     The distribution, in my mind, would
             25   be the same as trafficking.  If I am offering for

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              1                         Jacobsen
              2   distribution deCSS, that is another word that is
              3   synonymous with trafficking.
              4           Q.     You are saying that the mere posting
              5   by anybody of deCSS, whether it be academic, a
              6   university, an author, would under your definition
              7   come within trafficking?
              8                  MR. COOPER:  Same objection.
              9           Q.     Is that right?
             10           A.     Not necessarily.
             11           Q.     Explain that to me.
             12                  MR. COOPER:  Same objections.
             13           Q.     Go ahead.
             14                  MR. COOPER:  Let me confer with
             15           the witness.
             16                  MR. GARBUS:  Let me get an answer
             17           at this time.
             18                  MR. COOPER:  I just want to find
             19           out if the witness is --
             20                  MR. GARBUS:  Let me get an answer.
             21                  MR. COOPER:  As long as it is
             22           exclusive of material from you had from
             23           counsel, that's fine.
             24           Q.     Go ahead.  Just give me the answer.
             25           A.     I generally understand that there

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              1                         Jacobsen
              2   might be situations where parts of the utility or
              3   reasons for the utility being used may or may not
              4   violate the law.  I mean potentially that
              5   possibility exists.
              6   RL      Q.     Tell me where that potentiality
              7   exists.
              8   DI             MR. COOPER:  This witness is not
              9           offered for purposes of testifying on legal
             10           matters and I am not going to allow this
             11           witness to provide testimony with respect
             12           to his understanding of the law.  He is
             13           neither an expert, nor is he being offered
             14           as a witness capable of testifying on the
             15           law and I am going to direct him not to
             16           answer questions outside of the scope of
             17           his expertise and his designation as a
             18           witness.
             19           Q.     Have you ever seen any postings in
             20   universities or in academic journals or by
             21   cryptographers that you would consider not to be
             22   trafficking?
             23           A.     I don't recall ever seeing such
             24   postings.  Period.
             25           Q.     Have you ever looked at academic

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              1                         Jacobsen
              2   sites?
              3           A.     Have I?
              4           Q.     Yes.
              5           A.     No.
              6                  MR. GARBUS:  Mark this as the next
              7           exhibit.
              8                  (Defendants' Exhibit 13, three-page
              9           document dated 2/8/00, marked for
             10           identification, as of this date.)
             11   BY MR. GARBUS:
             12           Q.     Wasn't a cease and desist letter
             13   sent out to Carnegie Mellon University concerning
             14   the posting of deCSS?
             15                  MR. COOPER:  Let me just, for the
             16           record, note that the witness has been
             17           provided a document which appears to be a
             18           letter from the MPAA to a Mark Poepping,
             19           which appears to be a correspondence
             20           falling within the description Mr. Garbus
             21           just made.
             22           A.     I mean it would appear from this
             23   Exhibit that the answer is yes.
             24           Q.     Do you know whether or not any
             25   copies of DVDs were made from the posting at

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   Carnegie Mellon University?
              3                  MR. COOPER:  Calls for
              4           speculation.
              5           A.     I do not.
              6           Q.     Did you ever try and determine that?
              7           A.     No.
              8           Q.     Do you know what use was being put
              9   at Carnegie Mellon to the posting of the deCSS?
             10           A.     I do not.
             11           Q.     Did you ever make any inquiry -- by
             12   "you" I mean the MPAA -- before or after you sent
             13   the letter to Carnegie Mellon University?
             14                  MR. COOPER:  Would you read back
             15           the question.
             16                  (Record read.)
             17                  MR. COOPER:  I just note some
             18           inquiry must have been done in order to
             19           send the letter.  You mean to distinguish
             20           that?
             21           Q.     In other words, did you ever make
             22   any inquiry into Carnegie Mellon University as to
             23   why it was being posted before you sent the letter?
             24           A.     Did I?  No.
             25           Q.     By "I," I am talking about you, the

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              1                         Jacobsen
              2   MPAA, the nine plaintiffs.
              3           A.     I don't know.
              4           Q.     Was any distinction made before the
              5   cease and desist letters were sent out as to who
              6   should receive them within that large group of
              7   people who had posted deCSS?
              8                  MR. COOPER:  If I understand your
              9           question, I just want to admonish the
             10           witness to exclude from his answer any
             11           information that comes solely through
             12           conversations in which counsel
             13           participated.
             14           A.     I don't have an answer that I could
             15   make which would not involve discussions with
             16   counsel.
             17                  MR. GARBUS:  Read back the
             18           question and the answer.
             19                  (Record read.)
             20   BY MR. GARBUS:
             21           Q.     When did you graduate from law
             22   school?
             23           A.     1969.
             24           Q.     Which law school did you go to?
             25           A.     Northwestern University .

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              1                         Jacobsen
              2           Q.     Which college did you go to?
              3           A.     Valparaiso University.
              4   V-A-L-P-A-R-A-I-S-O.
              5           Q.     What did you do after you left law
              6   school?
              7           A.     I went to work for the Federal
              8   Bureau of Investigation.
              9           Q.     For how long?
             10           A.     Twenty-five and a half years.
             11           Q.     What kind of work did you do for the
             12   Federal Bureau of Investigation?
             13           A.     I was a special agent.
             14           Q.     What were your duties there?
             15           A.     Wide variety, but I worked many
             16   different types of violations.  For a period of
             17   time I was our in-house office legal counsel and
             18   for the last twelve years I was supervisor of
             19   various squads and programs.
             20   RL      Q.     Before when you said you could see
             21   how postings could be nonviolative, is the Carnegie
             22   Mellon such a posting?
             23   DI             MR. COOPER:  I will make the same
             24           objection with respect to the last
             25           question.  Calling for a legal conclusion

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              1                         Jacobsen
              2           and being outside the scope of this
              3           witness' expertise in the area for which he
              4           has been designated.  I direct him not to
              5           answer.
              6   BY MR. GARBUS:
              7           Q.     Can you see any postings that you as
              8   a senior vice president and director of worldwide
              9   anti-piracy would not constitute any involvement in
             10   "trafficking"?
             11                  MR. COOPER:  Read back the
             12           question.
             13                  (Record read.)
             14                  MR. COOPER:  In addition to the
             15           objections to the prior question, I
             16           believe that this is an incomplete
             17           hypothetical and calls for speculation.
             18           Q.     Go ahead.
             19           A.     Can I assume you are talking about
             20   deCSS posting?
             21           Q.     Yes.
             22           A.     For purposes of distribution to
             23   anybody that wants to pick it up on the net?
             24           Q.     No.  In other words, if Carnegie
             25   Mellon posts it, does that necessarily mean that

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              1                         Jacobsen
              2   Carnegie Mellon wants anybody on the net to have
              3   it?  Is that the sole reason for Carnegie Mellon to
              4   post it?
              5                  MR. COOPER:  Same objection as to
              6           the last question.  The witness is not
              7           here to speculate about the purposes that
              8           Carnegie Mellon may have in posting
              9           anything.
             10           A.     I do not know what the reason was
             11   that they posted it for.  I mean I can't attribute
             12   a reason for them without knowing what the facts
             13   were.
             14           Q.     Do you know where Carnegie Mellon
             15   posted it?
             16           A.     I do not.
             17           Q.     Do you know whether any
             18   cryptographers posted deCSS?
             19           A.     I do not.
             20           Q.     Can you see any reason why
             21   cryptographers would post deCSS?
             22                  MR. COOPER:  Calls for
             23           speculation.  It is an incomplete
             24           hypothetical.
             25           A.     I don't know.  I am not a

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              1                         Jacobsen
              2   cryptographer.
              3           Q.     Have you ever had any training in
              4   cryptography?
              5           A.     No.
              6           Q.     Have you seen the affidavit of Frank
              7   Stevenson in this case where he indicates he is
              8   going to write an article, including deCSS in it?
              9           A.     I have not seen Mr. Stevenson's
             10   affidavit.
             11           Q.     Is it your view that writing an
             12   academic article, including deCSS in that article
             13   would be trafficking?
             14                  MR. COOPER:  Calls for a legal
             15           conclusion.  It is outside the ambit of
             16           this witness' designation.
             17           Q.     Go ahead.
             18           A.     I'm not sure that I understand what
             19   you mean by "including deCSS in the article."
             20                  MR. COOPER:  It is also an
             21           incomplete hypothetical.
             22   RL      Q.     If an academic were to write about
             23   the method by which deCSS was arrived at, is it
             24   your understanding that that article would be
             25   violative of Section 1201?

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              1                         Jacobsen
              2   DI             MR. COOPER:  This witness has not
              3           been designated and is not here to testify
              4           about hypothetical legal situations which
              5           call for legal conclusions.  I direct him
              6           not to answer such questions.
              7   RL      Q.     Is it your understanding that it
              8   would be piracy if an academic wrote an article
              9   describing how deCSS was created?
             10                  MR. COOPER:  Same objections.
             11           Q.     Go ahead.
             12                  MR. COOPER:  Same direction.
             13                  MR. GARBUS:  Not to answer?
             14   DI             MR. COOPER:  I directed him not to
             15           answer.
             16                  MR. GARBUS:  Not to answer?
             17                  MR. COOPER:  Yes.
             18                  MR. GARBUS:  I thought we had an
             19           understanding that the witness would
             20           answer questions and that the judge would
             21           then rule on them.  I didn't understand
             22           that there would be directions not to
             23           answer.  Is your position that you will
             24           direct him not to answer until such time
             25           as a judge rules on the question?

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              1                         Jacobsen
              2                  MR. COOPER:  I'm not sure what
              3           understanding you are referring to.  I'm
              4           not aware of any understanding in this
              5           case that would change the rules of
              6           Federal Evidence which require and as
              7           well allow that I make objections with
              8           respect to the attorney-client privilege
              9           and as well as the competency to answer
             10           questions on an expert basis.
             11                  If this witness were designated
             12           to testify in expert matters, I would
             13           view it differently.  But he is not.
             14           He is here to testify about factual
             15           matters.
             16                  MR. GARBUS:  We will get a ruling.
             17           This witness is being asked to testify
             18           about piracy and I am asking him what
             19           constitutes piracy and what constitutes
             20           trafficking, and what is violative of
             21           trafficking laws.
             22                  MR. COOPER:  My objection is not
             23           as to any factual matters within this
             24           witness' knowledge.  My objection is to
             25           hypothetical legal matters as to which

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              1                         Jacobsen
              2           you are seeking a legal opinion.
              3           Q.     Have you advised any academic
              4   institutions that you consider the posting of deCSS
              5   to be piracy?
              6                  MR. COOPER:  Objection as to form.
              7           It's vague.
              8           Q.     Go ahead.
              9           A.     If you -- well, I mean Exhibit 13
             10   indicates or establishes the fact that we have sent
             11   to a university a cease and desist letter regarding
             12   the posting of the deCSS circumvention device.
             13           Q.     So does that mean that you have
             14   concluded that irrespective of the purpose for
             15   which that university posted the deCSS, it would be
             16   a violation of the anti-piracy statute?
             17                  MR. COOPER:  The letter speaks for
             18           itself.  If you are asking the witness to
             19           draw a conclusion, I object on that
             20           basis.  If you are asking the witness to
             21           testify about the internal conclusions of
             22           the MPAA with respect to the legality, I
             23           direct the witness not to answer if the
             24           sole source of that information is from
             25           conversations with counsel.

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              1                         Jacobsen
              2           A.     I am confused.  I'm sorry.
              3                  THE WITNESS:  Please read back the
              4           question and what my counsel just said.
              5                  (Record read.)
              6           A.     I will have to not answer, because
              7   the source of the information would be from
              8   conversations with counsel.
              9           Q.     Do you know enough about
             10   cryptography to tell me whether or not the
             11   publication of deCSS would provide a valuable tool
             12   for the academic discipline of cryptography?
             13           A.     I do not.
             14           Q.     Do you know enough about
             15   cryptography to tell me whether or not the
             16   publication of the entire deCSS code would be of
             17   value to the academic study of cryptography?
             18           A.     I do not.
             19           Q.     Do you know whether or not anyone --
             20   when you said "you," you were speaking on behalf of
             21   yourself, the MPAA, and the nine movie studios?
             22                  MR. COOPER:  Would you -- I don't
             23           know how the answer to your last answer
             24           could possibly be "yes," but would you
             25           read back the prior two questions?

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              1                         Jacobsen
              2                  MR. GARBUS:  I have already asked
              3           him -- when I say "you," I mean you, the
              4           MPAA, the movie studios.
              5                  MR. COOPER:  I understand what you
              6           mean.  I thought --
              7                  MR. GARBUS:  He agreed to that.
              8           If you want, I will just go through it
              9           and I will ask the same question ten
             10           different times.
             11                  MR. COOPER:  That's fine.  I just
             12           want -- before we go into that, I just
             13           want to have the last two questions read
             14           back.
             15                  (Record read.)
             16                  MR. COOPER:  Let me just say that
             17           from the specific questions you asked, I
             18           don't think a reasonable person could
             19           have concluded that you wanted the
             20           witness to testify not only about his own
             21           personal knowledge, but about the
             22           knowledge of every person employed by any
             23           of the plaintiffs, excluding Time Warner
             24           or any of the employees of the MPAA, and
             25           I believe the witness manifestly

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              1                         Jacobsen
              2           testified about his personal knowledge in
              3           answer to those two questions.
              4           Q.     After we get past your personal
              5   knowledge, do you know of anybody at the MPAA --
              6                  MR. GARBUS:  Off the record.
              7                  (Record read.)
              8   BY MR. GARBUS:
              9           Q.     Do you know anybody at the MPAA who
             10   knows whether or not the publication of the method
             11   of which deCSS is arrived at would be of value in
             12   the study of cryptography?
             13           A.     I don't know if there is anybody at
             14   the MPAA who has that type of knowledge about
             15   cryptography.
             16           Q.     Have you had any discussions with
             17   anyone at the MPAA concerning the potential uses of
             18   deCSS, whether the code itself or the method at
             19   which it was arrived at would be of value in the
             20   academic discipline of cryptography?
             21                  MR. COOPER:  Excluding discussions
             22           with counsel.
             23           A.     No.
             24           Q.     Do you know of anybody at the MPAA
             25   who would know about the value of an article

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              1                         Jacobsen
              2   describing reverse engineering in the academic
              3   discipline of cryptography?
              4                  MR. COOPER:  In the abstract or
              5           with respect to deCSS?
              6                  MR. GARBUS:  With respect to
              7           deCSS.
              8           A.     I don't know if there is anybody at
              9   the MPAA who would have that knowledge.
             10           Q.     Do you know what reverse engineering
             11   is?
             12           A.     Generally.
             13           Q.     Have you seen any documents that use
             14   the term reverse engineering and deCSS at either
             15   the MPAA or the movie studio plaintiffs?
             16                  MR. COOPER:  That's a "yes" or
             17           "no" question.
             18           A.     Together?  Where they used them
             19   together?
             20           Q.     Yes.
             21           A.     I believe I have.
             22           Q.     Where are those documents?
             23           A.     I think they are pleadings in this
             24   case.
             25           Q.     Other than the pleadings.

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              1                         Jacobsen
              2           A.     I think there may be some -- there
              3   is a possibility that on the website there may be
              4   some FAQs that deal with -- I don't recall if they
              5   have reverse engineering and deCSS in the same
              6   document, but it's possible.
              7           Q.     Have you downloaded it?
              8           A.     Discussing this case.
              9           Q.     Which websites?
             10           A.     I believe our website, the MPAA
             11   website.
             12           Q.     Other than the MPAA website?
             13           A.     Not that I am aware of.
             14           Q.     Do you know of any cryptographers at
             15   the movie studios?
             16           A.     I do not.
             17           Q.     Do you know whether any
             18   cryptographers were hired by the MPAA or the movie
             19   studios prior to the institution of this lawsuit?
             20                  MR. COOPER:  That's a "yes" or
             21           "no" question.
             22           A.     I don't know.
             23           Q.     Do you know whether any
             24   cryptographers were hired by the MPAA or the movie
             25   studios after the institution of this lawsuit?

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              1                         Jacobsen
              2           A.     I don't know if Mr. Schumann is a
              3   cryptographer or not.
              4           Q.     The only person that you know that
              5   has been hired as an expert with respect to this
              6   case by either the MPAA or Proskauer or the movie
              7   studios is Mr. Schumann; is that right?
              8                  MR. COOPER:  Exclude from that
              9           answer anything you know only through
             10           discussions with counsel.
             11           A.     Yes.
             12           Q.     Have you had any discussions
             13   yourself with any cryptographers who might become
             14   potential witnesses in this case?
             15           A.     I have not.
             16           Q.     To your knowledge, has anybody at
             17   any of the movie studios thus far had any
             18   conversations with any cryptographers or scientists
             19   who might become witnesses in this case?
             20                  MR. COOPER:  Same admonition with
             21           respect to conversations with counsel.
             22           A.     I don't know of any.
             23           Q.     When you say you don't know of any,
             24   since you are in charge of the worldwide
             25   Anti-Piracy Unit, would you think that any would

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              1                         Jacobsen
              2   have been hired without your knowledge?
              3                  MR. COOPER:  You are talking about
              4           hired in connection with this litigation?
              5                  MR. GARBUS:  Hired in connection
              6           with the deCSS issue.
              7                  MR. COOPER:  Lacks foundation.
              8           A.     By the movie studios or by MPAA?
              9           Q.     Either.
             10           A.     By MPAA, I would expect that I would
             11   know.  By the movie studios, I don't know whether I
             12   would know or not.
             13           Q.     Has anyone at the movie studios told
             14   you that they have hired any scientists, academists
             15   or cryptographers with respect to the deCSS suit?
             16                  MR. COOPER:  Again, excludes from
             17           your answer privileged communications.
             18           A.     No.
             19           Q.     Do you know what DivX is?
             20                  MR. COOPER:  D-I-V-X?
             21                  MR. GARBUS:  Yes.
             22           A.     In what context?  I know of several
             23   DivX's.
             24           Q.     Which are?
             25           A.     The original DivX I knew about was a

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              1                         Jacobsen
              2   format for DVD.  It was a competing format to a
              3   normal type of DVD.  It was heavily encrypted.
              4   Rather than being sold, it was rented.  You rented
              5   it for a period of time.  You had to use a special
              6   player.  It was a direct payment off that special
              7   player and off the reading of the disk.  That
              8   company, as far as I know, is now defunct.
              9           Q.     Do you know what Livid is?
             10           A.     No, I do not.
             11           Q.     Do you know what Linux is?
             12           A.     Generally.
             13           Q.     What is it?
             14           A.     My understanding is it's a computer
             15   operating system.
             16           Q.     Have you ever worked with it?
             17           A.     I have not.
             18           Q.     Has anyone at the MPAA ever worked
             19   with it?
             20                  MR. COOPER:  Lacks foundation.
             21           Outside of this witness' scope of
             22           testimony.
             23           A.     I don't know the answer.  Not to my
             24   knowledge, but somebody could have.
             25                    CONFIDENTIAL

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              1                         Jacobsen
              2   you know if she has ever used the Linux system?
              3           A.     I don't know.
              4           Q.     Do you know if she has ever used
              5   Redhat?
              6           A.     I don't know.
              7           Q.     Do you know what Redhat is?
              8           A.     It has something to do with Linux.
              9   I know there is a stock that was released on
             10   redhead.  Outside of that, I have very little
             11   information.
             12           Q.     Do you know what Corel is?
             13           A.     I have seen Corel in terms of
             14   software programs, but I don't know anything
             15   besides that.
             16           Q.     I show you the second sentence of
             17   Paragraph 14 of Stevenson.
             18                  MR. COOPER:  The Declaration of
             19           Frank Stevenson.
             20           Q.     Paragraph 14, Line 2.  He says, "I
             21   think a paper about the efforts of the Livid forum
             22   and other related and unrelated individuals in
             23   connection with CSS and DVDs will provide extremely
             24   useful information for a wide variety of
             25   individuals, scientists, academics, including

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   cryptologists and persons interested in the DVD
              3   area."
              4                  Now I ask whether or not you have an
              5   opinion as to whether or not his statement is
              6   accurate or whether or not you have an opinion
              7   about whether or not the substance of his statement
              8   is accurate.  Namely, that articles and papers
              9   about CSS and DVDs provide useful information for a
             10   wide variety of individuals, scientists, and
             11   academics.
             12                  MR. COOPER:  Outside of this
             13           witness' area of testimony and calls for
             14           an opinion for which I am not aware he is
             15           qualified to give.
             16           A.     I have no opinion.
             17           Q.     Had you ever heard of Mr. Stevenson
             18   before this case?
             19           A.     No.
             20           Q.     Do you know of any other eminent
             21   cryptologists in the United States?
             22                  MR. COOPER:  Assumes facts not in
             23           evidence.
             24           A.     I don't know any cryptologists.
             25           Q.     Have you ever read any academic

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              1                         Jacobsen
              2   journals on the science of cryptology?
              3           A.     I have not.
              4           Q.     Have you ever attended any lectures
              5   on the science of cryptology?
              6           A.     I have not.
              7           Q.     Do you know what the ACM is?
              8           A.     No.
              9           Q.     Do you know of a publication that
             10   the ACM publishes called "The ACM Journal"?
             11           A.     I am not aware of that publication.
             12           Q.     Do you know that the San Jose
             13   Mercury News links to sites that now post to deCSS?
             14                  MR. COOPER:  Assumes facts not in
             15           evidence.
             16           Q.     Do you know whether that is so or
             17   not?
             18           A.     I do not know.
             19           Q.     Do you know whether or not the
             20   Associated Press, when it came out with its story
             21   on Johansen in October-November, the young man who
             22   allegedly was involved in the breaking of the code,
             23   carried sites that posted deCSS?
             24           A.     I do not.
             25           Q.     Do you know whether or not APB News,

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              1                         Jacobsen
              2   which is the Associated Press website, presently
              3   carries postings to deCSS?
              4                  MR. COOPER:  In answering these
              5           questions, I assume you are excluding
              6           knowledge only through counsel?
              7                  MR. GARBUS:  Yes.
              8           A.     I do not.
              9           Q.     Do you know whether the New York
             10   Times has postings to deCSS and whether or not it
             11   links to sites that refer you to the actual posting
             12   of deCSS?
             13           A.     I do not.
             14           Q.     Do you know how many sites today
             15   have deCSS on them, the actual code?
             16                  MR. COOPER:  Posted as opposed to
             17           linked at this time?
             18                  MR. GARBUS:  Yes.
             19           A.     I'm not sure what you mean by the
             20   actual code.  Do you mean that the code is spelled
             21   out or that the software utility is present on the
             22   site?
             23           Q.     Both.
             24           A.     I do not know.
             25           Q.     Do you know for either one?

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              1                         Jacobsen
              2           A.     I know generally how many sites we
              3   have found.  I have no idea how many sites actually
              4   carry it.
              5           Q.     How many sites have you found now
              6   that actually carry it?
              7           A.     As of last week, roughly somewhere
              8   between 600 and 1,000 perhaps.
              9           Q.     And are these sites in the United
             10   States, overseas, or both?
             11           A.     Both.
             12           Q.     Do you know how many people have
             13   downloaded on pieces of paper deCSS?
             14                  MR. COOPER:  Assumes facts not in
             15           evidence and I think it misconstrues what
             16           deCSS is and whether it is capable of
             17           being --
             18                  MR. GARBUS:  Downloaded as an
             19           utility.
             20           A.     I do not, no.
             21           Q.     Do you know whether it is more or
             22   less than half a million?
             23           A.     I do not know.
             24           Q.     Do you know if it is more or less
             25   than 10 million?

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           A.     I do not know.
              3           Q.     Have you ever tried to determine how
              4   many downloads of the utility have been done since
              5   October-November?
              6           A.     No.
              7                  MR. GARBUS:  Off the record.
              8                  (Discussion off the record.)
              9   BY MR. GARBUS:
             10           Q.     When you say had been 600 to 1,000,
             11   you mean since October or November of 1999?
             12           A.     That's correct.
             13           Q.     Of that 600 to 1,000, how many have
             14   taken off the posting?
             15           A.     Again, I don't have an exact number,
             16   but I would say roughly 60 percent.  That would be
             17   posting and linking.  I'm sorry.  You just said
             18   posting.  But posting and linking, that would be
             19   the numbers.
             20           Q.     Let's break it down.  When you gave
             21   me the number of 600 to 1,000, were you talking
             22   about posting or posting and linking?
             23           A.     Talking about cumulative, which
             24   would include both.  I don't have an estimate as to
             25   which is which.

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              1                         Jacobsen
              2           Q.     So that if somebody referred you to
              3   the site that had deCSS, that would be included in
              4   the 600 to 1,000; is that right?
              5           A.     If someone linked to a deCSS?
              6           Q.     Yes.
              7           A.     That's correct.
              8           Q.     Does that include in that number the
              9   New York Times, the San Jose Mercury News, or the
             10   APB News, to your knowledge?
             11                  MR. COOPER:  Calls for
             12           speculation.
             13           A.     I don't know that we have located
             14   those sites, so I don't know whether they are
             15   included or not.
             16           Q.     You have a list of those sites that
             17   you have located?
             18           A.     The C & D letters that have been
             19   sent out would be representative of the sites that
             20   we have located.
             21           Q.     So you would have sent out, then,
             22   roughly 600 to 1,000 letters; is that right?
             23           A.     Yes.
             24           Q.     And these would be letters going to
             25   places either that post or that link?

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              1                         Jacobsen
              2           A.     I misstated it.  Let me take that
              3   back.  We may or may not have sent a letter to
              4   every site that was identified.  So, I don't know
              5   that there is one letter per site.
              6           Q.     Were you involved in any
              7   decision-making process about whether or not to
              8   send a letter to a particular site that had a
              9   posting or a linking?
             10                  MR. COOPER:  That's a "yes" or
             11           "no" question.
             12           A.     No.
             13           Q.     Who was?
             14           A.     Would have been our in-house
             15   counsel.
             16           Q.     Who is your in-house counsel?
             17           A.     Mark Litvack and/or Lori Donahue.
             18           Q.     To your knowledge, was there any
             19   discussion about sending or not sending the letter
             20   to any site that you might determine its posting
             21   would not be violative of the anti-piracy statute?
             22                  MR. COOPER:  I think the witness,
             23           if I understood his testimony, just
             24           testified that the only conversations on
             25           decisions to send or not send letters

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              1                         Jacobsen
              2           were conducted by counsel.
              3                  I think your question was just
              4           trying to elicit the specific substance
              5           of those conversations with respect to
              6           what was or was not considered and it's
              7           difficult for me to understand how it
              8           wouldn't intrude into the
              9           attorney-client privilege.
             10           Q.     Were there any internal discussions
             11   at the MPAA, you or any people of your staff,
             12   outside the presence of counsel, discussing whether
             13   any of the postings would not be violative of
             14   piracy concepts?
             15           A.     Not that I can recall.
             16                  MR. COOPER:  Off the record.
             17                  (Discussion off the record.)
             18                  MR. GARBUS:  It is now 12:15.
             19           Let's come back at 1:15.
             20           (Luncheon recess taken at 12:15 p.m.)
             21                        --o0o--
             22           A F T E R N O O N     S E S S I O N
             23                 (Time noted:  1:20 p.m.)
             24   K E N N E T H   A.   J A C O B S E N, resumed and
             25           testified as follows:

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   CONTINUED EXAMINATION
              3   BY MR. GARBUS:
              4           Q.     You used the term or the number 600
              5   to 1,000 as the number of postings or linkings that
              6   were relevant to deCSS.  Do you recall that?
              7           A.     I recall using the number 600 to
              8   1,000, indicating those were the sites we had
              9   located.
             10           Q.     Do you recall how many sites you had
             11   located, let's say, as of November 1st?
             12           A.     I don't.
             13           Q.     Is there any such documentation in
             14   the MPAA as to when you learned of which sites?
             15   When I say the MPAA, I mean the MPAA, you, the
             16   movie studios.
             17           A.     Outside of the actual letters that
             18   were sent --
             19           Q.     The cease and desist letters you
             20   mean?
             21           A.     Right.
             22                  -- the actual cease and desist
             23   letters, going back to November, I'm not sure we
             24   have any list or any file that would indicate any
             25   additional information.

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           Q.     Did the cease and desist letters go
              3   out all at one time or over a period of time?
              4           A.     They go out over a period of time.
              5           Q.     When did they start to go out?
              6           A.     Regarding deCSS?
              7           Q.     Yes.
              8           A.     I don't remember the exact date.
              9           Q.     When did they stop going out?  When
             10   was the last date?
             11                  MR. COOPER:  Assumes facts not in
             12           evidence.
             13           A.     We are still sending them.  They
             14   haven't stopped.
             15           Q.     Now, tell me something about the DVD
             16   CCA.  Who are they?
             17           A.     My understanding is the DVD CCA is a
             18   nonprofit organization which was created for the
             19   purpose of licensing the CSS, the content
             20   scrambling system for DVDs.
             21           Q.     When was that created?
             22           A.     I don't know the date.
             23           Q.     Was it in 1999 or prior to that?
             24           A.     I honestly don't know.
             25           Q.     Do you know who created it?  Which

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              1                         Jacobsen
              2   company?
              3                  MR. COOPER:  I note for the record
              4           the lack of foundation.  In fact, this is
              5           not within the purview of the witness'
              6           designated testimony.
              7           A.     I actually don't know.
              8           Q.     Do you know if any of the plaintiff
              9   movie companies in this case created it, the DVD
             10   CCA?
             11                  MR. COOPER:  Same objection.
             12           A.     Do you mean, by "created," if they
             13   actually brought it into existence as a legal
             14   entity?
             15           Q.     Yes.
             16           A.     I don't know the answer.
             17           Q.     Do you know if any of them were
             18   participants in DVD CCA?
             19                  MR. COOPER:  Ambiguous.  Also
             20           lacks foundation.
             21           A.     I don't know what you mean by
             22   "participants."
             23           Q.     Do you know if any of them funded?
             24           A.     I don't know.
             25           Q.     Do you know if any of them have

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              1                         Jacobsen
              2   employees who work for the DVD CCA?
              3           A.     I don't know for sure.  I don't
              4   believe so.
              5           Q.     Do you know how many people the DVD
              6   CCA employs?
              7           A.     I don't.
              8           Q.     Do you know who Mr. Hoy is?
              9           A.     I have never met him, but I know the
             10   name John Hoy.
             11           Q.     Have you spoken to him on the phone?
             12           A.     No.
             13           Q.     Have you spoken to anyone at the DVD
             14   CCA concerning deCSS?
             15           A.     No.
             16           Q.     Do you know if any of the movie
             17   plaintiffs have spoken to anyone at the DVD CCA?
             18                  MR. COOPER:  Exclude any
             19           information you have only through
             20           counsel.
             21           A.     In relationship to deCSS?
             22           Q.     Yes.
             23           A.     I don't know.
             24           Q.     Who is the General Counsel for the
             25   MPAA?

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              1                         Jacobsen
              2           A.     The General Counsel for the MPAA in
              3   Encino is Simon Barsky.
              4           Q.     Is there a different General Counsel
              5   in New York or is he the General Counsel?
              6           A.     We do not have a General Counsel in
              7   New York.  Fritz Attaway, I believe, is also
              8   designated as the senior vice president and General
              9   Counsel in Washington, I think.
             10           Q.     Is there a Deputy General Counsel?
             11           A.     In Encino there is.
             12           Q.     Who is that?
             13           A.     That would be Greg Geckner.
             14           Q.     Are there any other Deputy General
             15   Counsel?
             16           A.     I don't know.  I don't think so.
             17           Q.     What is Mr. Litvack's title?
             18           A.     His title is vice president and
             19   counsel for -- legal counsel for worldwide
             20   anti-piracy.
             21           Q.     You described your responsibilities
             22   this morning for overseeing how the program runs,
             23   the anti-piracy program runs, the development of
             24   strategies, the budget, and correspondence about
             25   the program to member companies and their

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   representatives.  Is that right?
              3           A.     That's generally correct, yes.
              4           Q.     When you say responsibility for
              5   overseeing how that program runs, can you tell me
              6   something more about what that means?
              7           A.     I'm ultimately responsible for the
              8   design and implementation of whatever strategies we
              9   use to address --
             10           Q.     -- piracy?
             11                  MR. COOPER:  Are you going to let
             12           him finish the answers?
             13           A.     To address basically the piracy of
             14   our member companies' audio-visual product.
             15           Q.     Who determines, then, what is or is
             16   not piracy?  Is that your determination?
             17           A.     In a broad sense, I would make the
             18   determination about the categories of theft of our
             19   product, which I consider to be piracy.
             20           Q.     Tell me what those categories are.
             21           A.     Generally, the illegal manufacture,
             22   distribution, sale of copies of our audio-visual
             23   product which have been unauthorized.
             24                  MR. COOPER:  There is more.
             25           A.     Illegal public performance of our

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              1                         Jacobsen
              2   member company products.
              3           Q.     What do you mean by illegal public
              4   performance?
              5           A.     Somebody shows the movie without the
              6   appropriate authority, exhibits the movie without
              7   appropriate authority, broadcasts a movie without
              8   appropriate authority.  There would be the
              9   manufacture, distribution of circumvention devices,
             10   situations where there is an unauthorized
             11   retransmission of our member company product, and
             12   that would generally cover the scope of what we do.
             13           Q.     Have you ever received a copy of a
             14   DVD movie when the movie is on a DVD disk in a
             15   decrypted form?
             16           A.     Not that I know of.
             17           Q.     When I say "you," I am talking about
             18   you, the movie studies.
             19                  Other than the claims letters that
             20   you sent out relating to deCSS, I presume that you
             21   have sent out other claim letters referring to
             22   other potential infringements of the DVDs; is that
             23   right?
             24                  MR. COOPER:  By "claim letters,"
             25           you mean what he previously referred to

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              1                         Jacobsen
              2           as cease and desist letters?
              3                  MR. GARBUS:  Cease and desist
              4           letters.
              5           A.     Yes.  I think that's accurate.
              6           Q.     To which groups?
              7           A.     Anyone who might be offering for
              8   sale a DVD on the internet, which we believe is
              9   unauthorized.
             10           Q.     Any other?
             11           A.     If we identified a site which
             12   offered what was claimed to be a DVD which was
             13   being offered in downloadable media or file
             14   transfer type circumstance on the internet, we
             15   might send them a cease and desist letter.
             16           Q.     Approximately how many cease and
             17   desist letters relating to deCSS were present?
             18           A.     Somewhere between 600 and 1,000, I
             19   believe.
             20           Q.     How many other cease and desist
             21   letters were sent since you have been in your
             22   position of April 1st, relating to alleged pirated
             23   companies of DVDs?
             24           A.     I don't know.
             25           Q.     Thousands?

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              1                         Jacobsen
              2           A.     No.
              3           Q.     More or less than fifty?
              4           A.     I don't know, because I do not have
              5   an accurate recollection of which sites might have
              6   been offering DVDs as opposed to other types of
              7   copies.
              8           Q.     Going back to, let's say, October 1,
              9   1999, if you know this, how many cease and desist
             10   letters have been sent referring to DVDs by you or
             11   your predecessor?
             12           A.     I don't know.
             13           Q.     Again, would you think it would be
             14   more or less than 1,000?
             15           A.     My guess would be it would be less
             16   than 1,000.
             17   RQ             MR. GARBUS:  I would ask you to
             18           produce them.
             19                  MR. COOPER:  Can I just have the
             20           question read back so I can make a note
             21           of precisely what the description of
             22           documents was?
             23                  (Record read.)
             24                  MR. COOPER:  Your request is for
             25           the production of any C & D letters that

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              1                         Jacobsen
              2           refer to hard goods in the DVD medium; is
              3           that correct?
              4                  MR. GARBUS:  Yes.
              5                  MR. COOPER:  I will take it under
              6           advisement.
              7                  MR. GARBUS:  It wouldn't be just
              8           hard goods.  It would be internet sales?
              9           Does that come within your definition?
             10                  MR. COOPER:  The reason I asked
             11           for the clarification is so that I can
             12           understand how to distinguish one item
             13           from another.
             14                  My belief is that if somebody is
             15           offering a product on the internet
             16           which consists of a physical disk which
             17           would then have to be transported
             18           through the mail or some other method
             19           of shipment, that that is treated in
             20           the same way as other hard good sales
             21           and then that's distinct from some kind
             22           of downloadable medium.
             23                  Are you making the same
             24           distinction?
             25                  MR. GARBUS:  Off the record.

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              1                         Jacobsen
              2                  (Discussion off the record.)
              3                  MR. COOPER:  Off the record the
              4           request has been clarified to include in
              5           addition to DVD hard goods, the defendant
              6           is also requesting C & D letters that
              7           refer to DVD motion picture in a
              8           downloadable medium.  Is that correct?
              9                  MR. GARBUS:  Thank you.
             10   BY MR. GARBUS:
             11           Q.     You said also that one of your jobs
             12   are the strategies that are developed with respect
             13   to those places where you find copying of DVDs that
             14   you perceive to be violations of 1201.
             15                  Have you ever sent out a letter to
             16   anyone who has made a copy of a DVD for home use?
             17                  MR. COOPER:  Read back the
             18           question.
             19                  (Record read.)
             20                  MR. COOPER:  It is compound,
             21           mischaracterizes the witness' testimony.
             22           Q.     Can you answer it?
             23           A.     What is your reference to 1201?  Is
             24   that to the Digital Millennium Copyright Act?
             25                  MR. GARBUS:  Yes.

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              1                         Jacobsen
              2           A.     The strategies that I developed are
              3   much broader than what evolves around that.
              4           Q.     Tell me the strategy that you
              5   developed with respect to the deCSS?
              6           A.     In part, it would deal with
              7   circumvention devices.
              8           Q.     Have you sent out any cease and
              9   desist letters to individuals or institutions who
             10   have created circumvention devices?
             11                  MR. COOPER:  You mean to exclude
             12           the ones that you have already put into
             13           evidence and asked him about?
             14                  MR. GARBUS:  Yes.
             15           A.     In addition to deCSS?
             16           Q.     Yes.
             17           A.     I can't recall whether we have or we
             18   haven't, but we would, in appropriate cases, and I
             19   can't remember whether we actually have or we
             20   actually haven't in those cases.
             21                  For instance, cable boxes that are
             22   used to steal cable signal or perhaps Smart Cards
             23   for satellite signal theft.
             24           Q.     Have you ever sent a cease and
             25   desist letter to someone who has copied a DVD for

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              1                         Jacobsen
              2   home use?
              3           A.     I think I already testified I know
              4   of nobody that I can say has copied a DVD for home
              5   use.  So, the answer would have to be I don't know
              6   if we have or we haven't.
              7           Q.     When you say that you deal with the
              8   strategies, is it part of your strategy, once you
              9   learn whether or not people have been copying it
             10   for home use, to try and stop that?
             11                  MR. COOPER:  Calls for
             12           speculation, assumes facts not in
             13           evidence.  The witness has testified
             14           repeatedly that he is not aware of one
             15           such instance and now you are asking for
             16           their policy about what they do when they
             17           find such an instance.  It is a
             18           tautology.
             19           A.     I'm sorry.  I lost the question in
             20   the discussion.
             21                  (Record read.)
             22           A.     To try and stop the copying.
             23           Q.     For home use.
             24           A.     I'm sorry.  Of what?
             25           Q.     The DVD?

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              1                         Jacobsen
              2           A.     Well, we have not faced that issue
              3   yet, because I am not aware of any solid case where
              4   that has happened.
              5           Q.     Do you have any policies or
              6   procedures that you are discussing concerning
              7   home-use copying of DVDs?
              8                  MR. COOPER:  I will be surprised
              9           if he can answer this without intruding
             10           on the privilege.
             11           A.     The answer is "no."
             12           Q.     Tell me the manner in which you
             13   discuss strategies to deal with issues like deCSS.
             14   Is there a committee within your department that
             15   discusses that?  Is it you and several people?  Do
             16   you discuss it with counsel?  Or all of the above?
             17           A.     In the particular issue of deCSS, my
             18   initial discussions commence with counsel.
             19           Q.     Did you and your staff make
             20   determinations about what is and what is not piracy
             21   and what is and what should not be gone after
             22   through cease and desist letters?
             23           A.     My staff, including the legal people
             24   that work for me, yes.
             25           Q.     Have you had any conversations about

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              1                         Jacobsen
              2   whether a home copy of a DVD through deCSS
              3   constitutes piracy?
              4                  MR. COOPER:  Given the foundation
              5           you have laid, I don't know how he can
              6           answer that without specifically
              7           providing the substance of
              8           attorney-client communications.
              9           Q.     You had no conversations other than
             10   with attorneys about whether or not making a home
             11   copy constitutes piracy?
             12           A.     In the deCSS context?
             13           Q.     Right.
             14           A.     That is correct.
             15           Q.     You have had no conversations with
             16   anybody at the MPAA, excluding counsel, about
             17   whether or not making a home copy through deCSS is
             18   piracy?
             19                  MR. COOPER:  When you say
             20           "excluding," you mean outside of the
             21           presence of counsel?
             22                  MR. GARBUS:  Yes.
             23           A.     I believe that's correct.
             24           Q.     Have you had any conversations where
             25   there have been MPAA members, counsel, and third

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              1                         Jacobsen
              2   parties or have these all been just meetings with
              3   MPAA and counsel concerning whether or not a home
              4   copy constitutes piracy?
              5           A.     By third parties, are you including
              6   outside counsel that has been hired --
              7           Q.     Other than lawyers.
              8           A.     The answer would be "no."
              9           Q.     Has Mr. Schumann been present at any
             10   of these discussions?
             11           A.     Not while I was present, no.
             12           Q.     Have memorandum been made of these
             13   conversations about whether or not making a home
             14   copy constitutes piracy?
             15           A.     No.  Not that I am aware of.
             16           Q.     Do you know how many universities
             17   were sent a letter similar to the one that was sent
             18   to Carnegie Mellon?
             19           A.     I don't have a number.
             20           Q.     Do you know how many academics
             21   received cease and desist letters?
             22           A.     I do not.
             23           Q.     Does the name "Jon Johansen" mean
             24   anything to you?
             25           A.     Yes.

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              1                         Jacobsen
              2           Q.     Does the term "MORE" mean anything
              3   to you?
              4           A.     It is a term that I have heard.
              5           Q.     Do you understand that Johansen was
              6   a member of MORE?
              7           A.     I don't know if he was or he wasn't.
              8           Q.     Do you understand that according to
              9   Mr. Johansen, deCSS was created for the Linux
             10   people by the Livid Group?
             11                  MR. COOPER:  Assumes facts not in
             12           evidence.
             13           Q.     Do you know anything about that one
             14   way or the other?
             15           A.     I do not.
             16           Q.     Do you know whether or not deCSS was
             17   given to the Linux groups or Livid groups prior to
             18   the time it was made public in October?
             19           A.     I do not.
             20           Q.     Do you know whether Linux is
             21   attempting to develop a DVD player?
             22                  MR. COOPER:  I will note that this
             23           is not within the ambit of this witness'
             24           designated area of testimony and this
             25           witness has not been established as

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           having technical expertise necessary to
              3           testify to any of these questions.
              4           A.     When you refer to Linux developer,
              5   I'm not sure who that would be.  I thought that was
              6   just a name for an operating system.
              7           Q.     Do you know whether or not there
              8   were any discussions at the MPAA as to whether or
              9   not it is the MPAA's policy that it is piracy to
             10   reverse engineer CSS?
             11                  MR. COOPER:  With all fairness to
             12           your absolute entitlement to lay a
             13           record, I don't see how he can answer
             14           that question without intruding on the
             15           substance of attorney-client
             16           communications, based on what he has
             17           testified so far.
             18                  I ask the witness whether he can
             19           answer that without revealing the
             20           substance of conversations with
             21           attorneys.
             22                  THE WITNESS:  I could not.
             23           Q.     Let me ask you two more questions.
             24                  MR. GARBUS:  Off the record.
             25                  (Discussion off the record.)

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              1                         Jacobsen
              2           Q.     Is it MPAA's policy that it is
              3   piracy to reverse engineer CSS?
              4                  MR. COOPER:  He is asking you a
              5           "yes" or "no" question, whether you know
              6           if there is such a policy.
              7           A.     There is no policy on that issue.
              8           Q.     Have there been discussions, not the
              9   subject of the discussions, but have there been
             10   discussions about whether or not the MPAA should
             11   have a policy that it is or is not piracy to
             12   reverse engineer CSS?
             13                  MR. COOPER:  That's a good example
             14           of what I thought was intruding into the
             15           subject matter.
             16                  MR. GARBUS:  Merely having the
             17           conversation.
             18                  MR. COOPER:  You are asking
             19           whether they have discussed it and I
             20           think that is within the privilege.
             21           Q.     It is MPAA's policy that it is
             22   piracy to make fair use of copyrighted material on
             23   a DVD?
             24                  MR. COOPER:  Read it back.
             25                  (Record read.)

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2                  MR. COOPER:  The question is:
              3           "yes" or "no."  Do you know of such a
              4           policy?
              5           A.     Let me get this straight.  Is it the
              6   policy that it is piracy to make fair use?  There
              7   is no such policy.
              8           Q.     Do you understand that it is the
              9   MPAA's position that it is piracy to make fair use
             10   of copyrighted material on a DVD, excluding from
             11   that any conversations with attorneys?
             12                  MR. COOPER:  Now you are saying
             13           "position."  Are you meaning to include
             14           positions asserted in this litigation?
             15           Because you have now distinguished
             16           "positions" from "policies."
             17                  MR. GARBUS:  Off the record.
             18                  (Discussion off the record.)
             19                  MR. GARBUS:  Read back the
             20           question.
             21                  (Record read.)
             22                  MR. COOPER:  Answer whether or not
             23           you know whether there is such a position
             24           and then we will take it from there.
             25           A.     If I understand the question

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   correctly, you are asking me, does the MPAA have a
              3   position that it is piracy to make fair use of
              4   copyrighted information that's contained on a DVD.
              5   We do not have such a policy, that I am aware of.
              6           Q.     Do you have a personal view of
              7   whether or not it is piracy to make fair use of
              8   copyrighted material on a DVD?
              9                  MR. COOPER:  He is not here to
             10           give his personal views.  He is here
             11           designated as a witness on behalf of
             12           other parties and his personal view on
             13           this subject is irrelevant.
             14           Q.     Go ahead.
             15                  THE WITNESS:  Should I answer?
             16   DI             MR. COOPER:  As long as your
             17           personal view does not stem from an
             18           attorney-client source, it is fine with me.
             19           Although I maintain my objection that it's
             20           not admissible in this lawsuit.
             21           A.     I hate to restate the question, but
             22   in the discourse I get lost.
             23                  (Record read.)
             24           A.     Assuming that fair use has been
             25   established by a court that says it's fair use, I

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   would then have to conclude that it would probably
              3   not be piracy.
              4           Q.     Is it the MPAA's policy that it is
              5   piracy to play DVD on a non-CSS equipped player?
              6                  MR. COOPER:  It's complex and I
              7           think it is an incomplete hypothetical.
              8           A.     I don't understand the question,
              9   because I don't understand how -- I am assuming you
             10   are talking about an encrypted DVD.  I don't
             11   understand how it would be played on a non-CSS
             12   enabled player without some intervening causes.
             13           Q.     Let's assume that the intervening
             14   cause was deCSS.
             15                  MR. COOPER:  So now the question
             16           is whether it is MPAA policy that using
             17           deCSS to play an encrypted DVD is piracy?
             18                  MR. GARBUS:  On a non-CSS equipped
             19           player.
             20           Q.     In other words, if you buy a --
             21   excuse me.  Answer the question.
             22                  MR. COOPER:  This is a "yes" or
             23           "no" question as to whether you know
             24           that.
             25           A.     Read it back.

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2                  (Record read.)
              3                  MR. COOPER:  Answer the question
              4           "yes" or "no," whether you are aware of
              5           such policy.
              6           A.     No.
              7           Q.     "No" meaning you are not aware of
              8   such a policy?
              9           A.     That's correct.
             10           Q.     What is your position on it, the
             11   MPAA's position on it as distinguished from policy?
             12                  MR. COOPER:  Calls for a legal
             13           conclusion.  I think our position with
             14           respect to such an issue to the extent
             15           that it is relevant to this lawsuit will
             16           come through the documents filed in
             17           connection with the lawsuit.  This
             18           witness is not an appropriate source for
             19           that information.  I will instruct you
             20           not to answer.
             21   RL      Q.     What is your personal view holding
             22   the position that you hold at the MPAA, whether or
             23   not it is piracy to play DVD on a non-CSS equipped
             24   player, either through the intervention of deCSS or
             25   some other utility?

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   DI             MR. COOPER:  Whether I would let him
              3           answer a question if he were here in his
              4           individual capacity I don't know, but at
              5           least in his representative capacity and
              6           given the fact that it calls for a legal
              7           conclusion, I am going to direct him not to
              8           answer that question.
              9           Q.     Is there such a position -- don't
             10   tell me what it is -- with respect to the first
             11   thing I asked?  Namely, reverse engineering CSS,
             12   whether it's piracy to do that.  Without telling me
             13   what the position is, is there a position?
             14                  MR. COOPER:  In fairness, you are
             15           really asking the witness to litigate --
             16                  MR. GARBUS:  I am trying to follow
             17           you.
             18                  MR. COOPER:  I know and I
             19           appreciate it.  But what you are really
             20           asking is, I think, asking about
             21           litigation positions in this case.
             22                  MR. GARBUS:  No, no.  Not
             23           necessarily.  No, no, no.  Not at all.
             24                  MR. COOPER:  In the defenses that
             25           you guys have raised.

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2                  MR. GARBUS:  Not at all.  I am
              3           asking him -- I am not asking him to say
              4           whether my legal defenses are right or
              5           wrong.  No.  I am asking him what their
              6           policy or positions or his views are on
              7           each of these three things.
              8                  He doesn't say whether I am
              9           right or wrong.  I am not asking that.
             10           I am just asking him what is his, the
             11           MPAA's policy and positions on three
             12           things.  Namely, whether you can play
             13           DVDs on a non-CSS equipped player,
             14           whether you can make fair use of
             15           copyrighted materials on a DVD, whether
             16           you can reverse engineer CSS.
             17                  MR. COOPER:  And my point was
             18           those issues have been developed, so far
             19           as I know, in connection with this
             20           litigation.  So what you are really
             21           asking him to provide is information that
             22           he has discussed with counsel and that's
             23           the reason for my objection.
             24           Q.     So there were no positions developed
             25   on this prior to litigation?

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2                  MR. COOPER:  You can ask him if he
              3           was aware of any discussions, outside of
              4           discussions with legal counsel, and I
              5           think he will tell you "no."
              6                  If that is the question, do you
              7           have any such information outside of
              8           discussions with legal counsel?
              9                  THE WITNESS:  No.
             10   BY MR. GARBUS:
             11                    Confidential
             12 
             13 
             14         
             15 
             16 
             17 
             18 
             19           Q.     Did you ever have a discussion with
             20   any of them?  Did you ever tell them whether it is
             21   MPAA's policy or position that it is piracy to
             22   reverse engineer CSS?
             23           A.     No.
             24                  MR. COOPER:  Go ahead.  I expected
             25           that to be your answer.

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              1                         Jacobsen
              2           A.     No.
              3           Q.     With respect to those forty to
              4   forty-five people, did you ever have a conversation
              5   with them whether or not it was ever MPAA's policy
              6   or position, prior to the institution of this
              7   lawsuit, that to make fair use of copyrighted
              8   materials on a DVD was considered to be piracy?
              9           A.     No.
             10           Q.     Did the question ever arise whether
             11   playing a DVD on a non-CSS equipped player would be
             12   considered by the MPAA, either its policy or
             13   position, to be piracy?
             14                  MR. COOPER:  Outside of
             15           discussions involving counsel.
             16           A.     Not that I am aware of.
             17           Q.     Did you know, at any time, that
             18   Linux had succeeded in making a DVD player?
             19           A.     I'm not sure who you refer to by
             20   "Linux."  I honestly thought it was just an
             21   operating system.  Is Linux an entity?  I don't
             22   know.
             23           Q.     Do you know whether or not there is
             24   any open source program that allows DVD to be
             25   played after it has been unscrambled by deCSS?

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              1                         Jacobsen
              2           A.     Are you asking me are there any
              3   authorized license players that have been made for
              4   DVD playback in an open source mode, such as Linux?
              5   I believe that there have.
              6           Q.     Where?
              7           A.     I think recently there have been two
              8   licenses issued to Linux-based players.
              9           Q.     When was that?
             10           A.     I don't know.
             11   RQ             MR. GARBUS:  May I have copies of
             12           those licenses?
             13                  MR. COOPER:  Are you asking me?
             14                  MR. GARBUS:  Yes.
             15                  MR. COOPER:  I can't answer your
             16           question.  I don't know who has them,
             17           whether they are in any of the parties'
             18           possession, but I will take your request
             19           under advisement.
             20           Q.     You said, "two Linux entities"?  Is
             21   that the description you used?
             22           A.     No.  I believe two entities who
             23   obtained licenses for DVD players, which would, in
             24   fact, play DVDs on a Linux operating system.
             25           Q.     Do you know how they would do that?

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              1                         Jacobsen
              2   Would they do it through the use of deCSS?
              3           A.     I haven't the slightest idea how
              4   they would do it.
              5           Q.     So as you sit here today, you don't
              6   know whether or not you have licensed systems that
              7   of necessity depend on deCSS to play DVD movies?
              8                  MR. COOPER:  Mischaracterizes the
              9           witness' testimony and I think, more
             10           importantly, neither the witness nor any
             11           of the plaintiffs in this action are the
             12           license source of the CSS.
             13           Q.     Do you know if DVD CCA entered into
             14   any contracts with those two entities?
             15           A.     That was my understanding, that DVD
             16   CCA had issued two licenses.
             17           Q.     Where did you get that understanding
             18   from?
             19           A.     I don't remember.
             20           Q.     When did you get that information?
             21           A.     Recently.
             22           Q.     Within the last week?
             23           A.     I don't recall whether it was in the
             24   last week, but it's recent.
             25           Q.     Was that within the last month?

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              1                         Jacobsen
              2           A.     I would say so, yes.
              3           Q.     Was that communication made to you
              4   in a letter or orally?
              5           A.     I don't recall if I read it in a
              6   digest or if it was communicated to me by someone
              7   at MPAA.  I don't remember.
              8           Q.     When you say a digest, what kind of
              9   digest are you talking about?
             10           A.     A DVD report which comes out weekly
             11   and I usually scan, and I may have read it there.
             12           Q.     Have you ever seen -- when I say
             13   "you," you or any of the plaintiffs -- these
             14   license agreements?
             15           A.     Have I?
             16                  MR. COOPER:  Does your comment
             17           right now, does that mean that you are
             18           going to testify about your personal
             19           knowledge as opposed to the knowledge of
             20           the various plaintiffs, other than Time
             21           Warner?
             22           A.     I'm not exactly sure what license
             23   agreements you are referring to.
             24           Q.     Those two that you referred to
             25   before.

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              1                         Jacobsen
              2           A.     I don't know whether any of the
              3   member companies have seen those licensing
              4   agreements.  I have not.
              5           Q.     Do you know where those two entities
              6   that entered into those license agreements were
              7   from?  Were they California entities?
              8           A.     I do not know.
              9           Q.     Were they American entities?
             10           A.     I don't remember.
             11           Q.     When you use the term "DVD report,"
             12   what report is that?
             13           A.     It's an independently published
             14   weekly digest that comes out on DVD in its
             15   development report.
             16           Q.     Who publishes it?
             17           A.     I don't know.
             18   RQ             MR. GARBUS:  May I have a copy of
             19           that DVD report that referred to those two
             20           licenses?
             21                  MR. COOPER:  We will take it under
             22           advisement, although I note that the
             23           witness wasn't certain that the
             24           information came from such a report.
             25           Q.     Do you know the address of such

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              1                         Jacobsen
              2   report?
              3           A.     I don't.
              4                  MR. COOPER:  The publisher of the
              5           report?
              6                  MR. GARBUS:  Yes.
              7           Q.     Is this on the internet or --
              8           A.     It's hard copy.
              9           Q.     Does the MPAA have a policy that
             10   says it is piracy to make a home copy of a movie on
             11   a video cassette?
             12                  MR. COOPER:  Are you saying to
             13           make the copy onto a video cassette
             14           medium?
             15                  MR. HERNSTADT:  From to.
             16                  MR. COOPER:  From a video cassette
             17           onto some other medium, regardless --
             18                  MR. HERNSTADT:  Onto a video
             19           cassette.
             20                  MR. COOPER:  To duplicate an
             21           existing VHS?
             22                  MR. HERNSTADT:  Yes.
             23           A.     Just to make sure I understand, you
             24   are talking about --
             25                  MR. GARBUS:  Why don't I rephrase

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              1                         Jacobsen
              2           it.
              3           A.     If one of my member companies'
              4   authorized video cassettes, to put that in a VCR,
              5   you defeat the macrovision or any other device that
              6   is contained therein and you make another copy?
              7   The answer is yes, I would consider that to be
              8   piracy.
              9                  MR. COOPER:  Read back the last
             10           question and answer.
             11                  (Record read.)
             12   BY MR. GARBUS:
             13           Q.     Let me see if I understand.  If I
             14   buy a product, a DVD, and I want to make up a
             15   backup copy in one form or another in case I lose
             16   the DVD that I bought, which I paid for, is it the
             17   MPAA's policy that for me to do so would constitute
             18   piracy?
             19                  MR. COOPER:  Based on our prior
             20           colloquy and the witness' prior
             21           testimony, I can already tell you that he
             22           would only know the answer to that based
             23           on conversations with counsel.
             24           Q.     Is that true?  You have no
             25   independent view of that?

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              1                         Jacobsen
              2                  MR. COOPER:  This is with respect
              3           to DVDs.
              4           A.     That's correct.
              5                  MR. HERNSTADT:  Off the record.
              6                  (Discussion off the record.)
              7   BY MR. GARBUS:
              8           Q.     Do you know if there is a policy at
              9   the MPAA as to whether or not if you buy a DVD and
             10   make a backup copy of that DVD to protect you in
             11   the event you lose the DVD, that it is the policy
             12   of the MPAA that that is piracy?
             13           A.     By "piracy," I am assuming you are
             14   asking me whether or not I would consider that to
             15   be an unauthorized copy?
             16           Q.     Yes.
             17                  MR. COOPER:  He is asking whether
             18           there is such a policy that you are aware
             19           of.
             20           A.     Every fact situation may or may not
             21   be different.  I don't think I can answer that
             22   there is an overriding policy in the abstract as
             23   opposed to present it in a particular fact
             24   situation.
             25           Q.     In other words, the facts determine

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              1                         Jacobsen
              2   whether or not the MPAA would consider it piracy to
              3   make a backup copy of a DVD so that I can have a
              4   copy in the event I lost the DVD or in the event I
              5   wanted to play the DVD, the movie, on another
              6   medium within my house.
              7                  MR. COOPER:  That is a
              8           mischaracterization of what the witness
              9           said.  I think what he said was there is
             10           no policy specific to those facts.
             11                  MR. GARBUS:  Let's go back to the
             12           beginning.
             13   BY MR. GARBUS:
             14           Q.     I think we had a different
             15   understanding.  As I understand your testimony, and
             16   you tell me if I am wrong, that it is the
             17   particular facts of a particular case -- and by
             18   "case" I don't mean legal case.  I mean instance.
             19                  -- which determines whether or not
             20   making a backup copy of a DVD that you purchase is
             21   piracy.  Is that right?
             22                  MR. COOPER:  Mr. Garbus, I have
             23           been trying to make sure that we
             24           distinguish between legal advice that the
             25           witness is aware of and policies, as I

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              1                         Jacobsen
              2           believe you have attempted to establish a
              3           distinction between the two.
              4                  I think the witness has said
              5           that there is no fact-specific policy.
              6           What I don't want to do is have him
              7           start to go down the road of talking
              8           about legal opinions that he
              9           understands from his discussions with
             10           counsel.
             11           Q.     When you had discussions within the
             12   MPAA group, putting counsel aside, prior to the
             13   time this litigation was instituted, did anyone
             14   raise the question about whether or not it's piracy
             15   to make a backup copy of a DVD in the event you
             16   lose one?
             17                  MR. COOPER:  Other than
             18           discussions with counsel.
             19           Q.     Other than discussions with counsel.
             20           A.     I don't believe I have ever had that
             21   conversation in the DVD context, no.
             22           Q.     Did you have that conversation in
             23   the VCR context?
             24                  MR. COOPER:  Other than with
             25           counsel.

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              1                         Jacobsen
              2           A.     Yes.
              3           Q.     What is the policy in the VCR
              4   context?
              5                  MR. COOPER:  Assuming there is
              6           one.
              7           A.     Can I talk to my counsel for a
              8   minute off the record?
              9                  MR. HERNSTADT:  Is this about
             10           privilege?
             11                  THE WITNESS:  Yes.  It might be.
             12                  MR. COOPER:  It is to determine
             13           whether there is a privilege.
             14                  (Witness consulted with Counsel.)
             15                  MR. GARBUS:  Read back the last
             16           question.
             17                  (Record read.)
             18           A.     I don't want to quibble about words,
             19   but I have trouble with the term "policy."
             20                  Can I say that as a general rule it
             21   is MPAA's position that the taping of an authorized
             22   video cassette, put it into a VCR, chaining that
             23   VCR into another VCR, putting a blank video
             24   cassette and creating a copy is an unauthorized act
             25   that we would include within the overall rubric of

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              1                         Jacobsen
              2   piracy.
              3           Q.     And your answer, then, if I took out
              4   the words "video cassette" and included the words
              5   "DVD," your answer would be the same?
              6           A.     Generally.  Obviously you couldn't
              7   put it into a VCR, but if there were a way to make
              8   the copy, the general rule would be, yes, we would
              9   view that as falling under the rubric of piracy.
             10           Q.     So that if I had a video cassette
             11   and let's assume in my house I had five video
             12   cassette players and I wanted to make five copies
             13   of the one that I bought for each of those video
             14   players, the MPAA policy or position would be that
             15   that constitutes piracy; is that right?
             16                  MR. COOPER:  Assumes facts not in
             17           evidence.
             18           A.     I mean the general rule, as I
             19   stated, would be that the making of a copy would be
             20   an unauthorized act.
             21           Q.     And if I were, let's say, a movie
             22   critic who wanted to make a copy of the video
             23   cassette so that I could watch it in my bedroom or
             24   some place else, it is the MPAA's view that that
             25   would be piracy?

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              1                         Jacobsen
              2                  MR. COOPER:  Here is where I think
              3           you cross the line from general rules to
              4           specific application of general rules to
              5           specific facts, in which I believe on
              6           proper foundation the witness will tell
              7           you his only knowledge comes from
              8           discussions with counsel.
              9           Q.     If a university wants to make a copy
             10   of a video cassette or a DVD for teaching purposes,
             11   is it the MPAA's view that making that copy would
             12   constitute piracy?
             13                  MR. COOPER:  Calls for
             14           attorney-client privilege information.
             15           Q.     Do you know if the MPAA has a
             16   position or policy on whether or not a university
             17   or a library making a second copy as a backup copy
             18   would constitute piracy?
             19                  MR. COOPER:  That's a "yes" or
             20           "no" question, whether you know that the
             21           MPAA has such a position or policy.
             22           A.     I can't answer it "yes" or "no,"
             23   because everything would be fact specific and it
             24   would be something that is discussed with lawyers
             25   when the facts are accumulated.

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              1                         Jacobsen
              2           Q.     So that if university A wanted to
              3   make a copy and if university B wanted to make a
              4   copy, the determination of what is or is not piracy
              5   could be different in those two cases?
              6                  MR. COOPER:  You are asking him
              7           now to draw a legal conclusion based on a
              8           limited set of facts and I submit an
              9           insufficient set of facts to draw such a
             10           conclusion indicates that this witness is
             11           not here to do that.
             12           Q.     When we talk about policies or
             13   positions, is there any place where MPAA or movie
             14   studios had anything that looked like policies or
             15   positions on any of these matters, other than in
             16   the files of lawyers at Proskauer or Weil Gotshal,
             17   making a distinction between lawyers that worked
             18   for you or with you at the MPAA and lawyers who
             19   work in these movie houses?
             20                  MR. COOPER:  Do you understand the
             21           question?
             22           A.     I don't understand the question.  I
             23   got lost.
             24           Q.     You got lost in the sophistication
             25   of the question?

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           A.     Yes.  Actually, I did.  Could we
              3   read it back, please?
              4                  MR. GARBUS:  Read it back.
              5                  (Record read.)
              6                  MR. GARBUS:  Off the record.
              7                  (Discussion off the record.)
              8                  MR. COOPER:  Why don't you answer
              9           the question as to whether there are any
             10           written policies you are aware of on the
             11           subject.
             12           A.     And the subject would be the general
             13   rule of copying from one to another?
             14           Q.     Yes.
             15           A.     Not that I am aware of.
             16           Q.     Does the MPAA -- I used the words
             17   positions or policies and you may think I am
             18   talking about a book that has policies and
             19   positions, but I am going beyond that.
             20                  Are there letters or testimonies
             21   before public entities like Congress or the
             22   Copyright Office where the MPAA has stated a
             23   position or a view we respect to any of the issues
             24   we have been talking about?  Namely, the making of
             25   second copies either for the home, for library, or

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              1                         Jacobsen
              2   for university.  That you are aware of.
              3           A.     I am not aware of any specific
              4   testimony.  I would be surprised if it hadn't
              5   occurred at some time.
              6           Q.     Have you ever read Mr. Valenti's
              7   testimony before the Congress on the question of
              8   the passage or creation of the DMCA?
              9           A.     I have not.
             10           Q.     Mr. Valenti is the head of the
             11   organization?
             12           A.     Yes, he is.
             13           Q.     Do you accept that, when he says
             14   that the MPAA has taken a position or has a policy
             15   that it is true?
             16                  MR. COOPER:  Are you asking him in
             17           the legal sense or that he believes that
             18           to be the case?
             19           Q.     Does Valenti speak for the MPAA?
             20                  MR. COOPER:  It's the same
             21           question.
             22                  MR. GARBUS:  Right.
             23                  MR. COOPER:  Mine to you.  You are
             24           asking him in the legal sense or that he
             25           believes on his position that when he

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              1                         Jacobsen
              2           speaks, he speaks for the --
              3                  MR. GARBUS:  Whatever he thinks.
              4           A.     My belief is that when Mr. Valenti
              5   speaks, he speaks on behalf of the MPAA.
              6           Q.     How does the MPAA arrive at policies
              7   or positions?  In other words, what is the process?
              8                  MR. COOPER:  Overbroad.
              9           A.     I'm sorry.  I'm not exactly certain
             10   what you mean.
             11           Q.     If the MPAA takes a policy or
             12   position and Mr. Valenti articulates an opinion
             13   before Congress, what is the internal process, if
             14   there is one?  Maybe it is ad hoc.
             15           A.     I don't know.  I have not been
             16   included in that process in the short time I have
             17   had this position.
             18           Q.     So you have never been included,
             19   since April 1st, in the process of making policies
             20   or positions or cooperating in the making of
             21   policies or positions at the MPAA; is that right?
             22           A.     No.  You asked that were articulated
             23   by Mr. Valenti.  I have not been involved in any
             24   situation where he has articulated a policy.
             25           Q.     Have you ever been involved in any

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              1                         Jacobsen
              2   situation, since you have been employed by the
              3   MPAA, where anybody has articulated a policy or
              4   position with respect to deCSS?
              5           A.     We are talking specifically deCSS
              6   now?
              7           Q.     Yes.
              8           A.     I think the development of any
              9   policy discussions I have been in have been with
             10   counsel.
             11           Q.     Prior to the time that the cease and
             12   desist letters were sent out, did the MPAA
             13   articulate a position that it was their view that
             14   the use of deCSS constitutes piracy?
             15           A.     I'm sorry.  Prior to the sending out
             16   of the C & D?
             17           Q.     Yes.
             18           A.     Articulate to whom?
             19           Q.     To anyone.
             20           A.     Not that I am aware of.
             21           Q.     Prior to the time that the cease and
             22   desist letters were sent out, did the MPAA ever
             23   articulate any position or policy, to your
             24   knowledge, on whether making copies of DVDs for
             25   home, university, or library use constituted

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              1                         Jacobsen
              2   piracy?
              3                  MR. COOPER:  Assumes facts not in
              4           evidence.  When you say "articulate," you
              5           mean express to some third party outside
              6           of the member companies, the MPAA, and
              7           their counsel?
              8                  MR. GARBUS:  Yes.
              9           A.     I don't know the answer.
             10           Q.     Does the MPAA issue press releases?
             11           A.     Yes.
             12           Q.     Does the MPAA have a file of those
             13   press releases?
             14           A.     I assume that we do.
             15                  MR. GARBUS:  I would ask for the
             16           production of that in so far as they are
             17           relevant to deCSS and in so far as any of
             18           them are after October 1st.
             19                  MR. COOPER:  Whether or not
             20           relevant?
             21                  MR. GARBUS:  Whether or not
             22           relevant.
             23           Q.     Does the MPAA issue policy
             24   statements from outside the United States or does
             25   everything come from inside the United States?

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              1                         Jacobsen
              2                  MR. COOPER:  Read back the
              3           question, please.
              4                  (Record read.)
              5           A.     I'm sorry.  Again, definitionaly I
              6   am having difficulty with what you mean by "policy
              7   statement."
              8              
              9                   Confidential
             10 
             11 
             12 
             13           A.     It would depend upon the
             14   circumstances of the statement.
             15           Q.     To your knowledge, has anyone
             16   outside of the United States issued any statements
             17   relevant to deCSS?
             18                  MR. COOPER:  That is, any one
             19           representing the MPAA?
             20                  MR. GARBUS:  Yes.
             21           A.     Are you including in that, you mean
             22   interviews and newspaper articles?
             23           Q.     Yes.
             24           A.     I don't know for a fact.  I think it
             25   is likely, but I don't know for a fact.

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              1                         Jacobsen
              2           Q.     Do you have files on that?
              3           A.     If in fact -- if it was during a
              4   news article or during an interview for a news
              5   article and if in fact we did obtain a copy of
              6   that, it probably has been kept.
              7           Q.     That would be in Encino?
              8           A.     I believe so.
              9   RQ             MR. GARBUS:  I would ask for a copy
             10           of that.
             11           Q.     With respect to congressional
             12   testimony, Mr. Valenti and others who have
             13   testified before Congress or the Copyright Office
             14   concerning the MCA, would you have copies of that
             15   testimony?
             16           A.     Would I, in the context of being the
             17   Motion Picture Association?  I believe there would
             18   be copies.
             19   RQ             MR. GARBUS:  Would you produce that.
             20           Would you also produce statements made or
             21           exhibits given to the Copyright Office
             22           relating to deCSS?  Under advisement?
             23                  MR. COOPER:  Yes.  That's true for
             24           all of your requests.
             25   RQ             MR. GARBUS:  Would you also give us

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              1                         Jacobsen
              2           any statements made by Mr. Valenti or
              3           anybody at the MPAA before the Congress or
              4           the Copyright Office concerning the MPAA,
              5           as well as statements, if there are any,
              6           directed to the issues I raised before?
              7           Namely, whether or not you can make a home
              8           copy of a DVD, whether a university can
              9           make a home copy of a DVD, whether a
             10           library can make a home copy of a DVD.
             11                  Will you, Mr. Cooper, in the
             12           spirit of generosity, look at your
             13           files and see if you can produce that?
             14                  MR. COOPER:  I will certainly take
             15           it under advisement, spiritedly and
             16           generously.
             17   RQ             MR. GARBUS:  With respect to the
             18           questions before, with respect to whether
             19           it is the MPAA's policy that it is policy
             20           or position, that it is piracy to reverse
             21           engineer CSS to make fair use of
             22           copyrighted materials on a DVD; 3, play DVD
             23           on a non-CSS equipped player, would you
             24           give me, any public statements,
             25           congressional testimony, or any other

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              1                         Jacobsen
              2           public records relating to whether or not
              3           the MPAA considers policy or position, that
              4           to be piracy?
              5                  MR. COOPER:  I will take it under
              6           advisement.
              7   BY MR. GARBUS:
              8           Q.     What was the name of your
              9   predecessor at the job you took over on April 1st?
             10                    Confidential
             11           Q.     Where is he now?
             12           A.     He is currently employed by the
             13   IDSA.
             14           Q.     Which is?
             15           A.     It is a trade association
             16   representing the -- basically, the games industry.
             17           Q.     How long had he held your position?
             18           A.     Roughly two years.
             19           Q.     Is the position that you now have
             20   similar to the position you had before except you
             21   went from America to worldwide?
             22           A.     My previous position I ran the
             23   United States program.
             24           Q.     Who now runs the American program?
             25                     Confidential

                              INTERIM COURT REPORTING
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              2           Q.     Acting director.  That may or may
              3   not be a permanent position?
              4           A.     That's correct.
              5           Q.     Did you know the DVD CCA was going
              6   to file a trade secret suit -- when I say "you," I
              7   am now referring to the MPAA -- before the suit was
              8   filed in California?
              9                  MR. COOPER:  Other than through
             10           discussions with counsel.
             11           A.     Any information I had originated
             12   from discussions with counsel.
             13           Q.     Did you ever see the legal papers in
             14   that proceeding?
             15           A.     I don't think so.
             16           Q.     Were you ever consulted by anybody
             17   at the MPAA, other than counsel?  To your
             18   knowledge, was anybody at the MPAA ever consulted
             19   by anybody at DVD CCA before the lawsuit was filed?
             20           A.     I may be mistaken.  I thought there
             21   were two parts to that question.  Could you please
             22   read it back to make sure I answer right.
             23                  (Record read.)
             24           A.     Any information I would have about
             25   that would have come through counsel.

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              2           Q.     In other words, it would not have
              3   come from any of the people on your staff in
              4   California, the place where the lawsuit was filed?
              5           A.     That's correct.
              6                  MR. COOPER:  Other than the
              7           lawyers in California.
              8                  THE WITNESS:  That's right.
              9           Q.     Do you know why the decision was
             10   made to file the lawsuit first in California by the
             11   DVD CCA relating to DVD CSS and then a later
             12   lawsuit to be filed in New York by the MPAA?
             13                  MR. COOPER:  Assumes facts not in
             14           evidence.  Answer the question "yes" or
             15           "no," please.
             16           A.     Any information I would have about
             17   the filing of the lawsuit in New York I obtained
             18   through conversations with counsel.  Any
             19   information that I have about the filing of the
             20   lawsuit in California I obtained through
             21   conversations with counsel.
             22           Q.     Is it fair to say that, to your
             23   knowledge, after the filing of the DVD CCA lawsuit,
             24   that there were many more website postings of deCSS
             25   than there had been before?

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              1                         Jacobsen
              2           A.     I don't know the answer.
              3           Q.     Do you know whether or not the total
              4   number of postings of deCSS before the filing of
              5   the California lawsuit was more or less than
              6   twenty-five?
              7           A.     I don't know for sure.
              8           Q.     Is there any information at the MPAA
              9   which shows you, either because of downloaded
             10   material or because of investigations, that you or
             11   the studios made the number of sites at any
             12   particular time or month or week from October 1st
             13   to the present?
             14           A.     Were you asking if there is a list
             15   that we maintained that indicates the sites?
             16           Q.     Either a list or any other kind of
             17   documentation.  Namely, that you had downloaded
             18   such-and-such on October 1st or that you had
             19   downloaded such-and-such on December 1st.  Is there
             20   any way that I can trace or you can trace the
             21   pattern of postings and linkings from October, then
             22   looking at December, then looking at January, and
             23   then looking at now?
             24                  MR. COOPER:  You are focusing on
             25           the dates of posting?

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              1                         Jacobsen
              2                  MR. GARBUS:  The dates that you
              3           learned of them or the dates of postings
              4           or whenever you learned them.
              5           A.     There is a list that we maintain.
              6   It has not been maintained since -- I don't believe
              7   it has been obtained since October 1st, however, so
              8   it would be incomplete.
              9           Q.     So tell me about this list.
             10                  MR. COOPER:  Let's take it a step
             11           at a time.  I want to make sure that we
             12           don't get into the substance of the list
             13           until there is a determination as to
             14           whether it is subject to work product or
             15           attorney-client privilege.
             16                  THE WITNESS:  Okay.
             17                  MR. GARBUS:  Off the record.
             18                  (Discussion off the record.)
             19                  MR. COOPER:  Read back the pending
             20           question.
             21                  (Record read.)
             22   BY MR. GARBUS:
             23           Q.     What is it?  Where is it?  Exactly
             24   what does the list contain and how was it compiled?
             25                  MR. COOPER:  You can answer what

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              1                         Jacobsen
              2           it is and where it is and if it's --
              3           let's start with those two.
              4           A.     It is a list of sites on the
              5   internet which have been identified that were
              6   either posting or linking the deCSS utility.
              7           Q.     Tell me, when was the list first put
              8   together?
              9           A.     As I recall, it was commenced
             10   sometime in January of this year.
             11           Q.     So in other words, if I understand
             12   it, in January you said, let's find out -- when I
             13   say "you," the MPAA.
             14                  -- let's find out how many sites
             15   from October to now, January, have linked or posted
             16   deCSS.  So you look back two or three months?
             17           A.     I don't remember for sure, but I
             18   think that may be incorrect.  I think we may have
             19   started with sites we located in January and worked
             20   forward.  I'm not certain.
             21           Q.     If you started in January and worked
             22   forward, how do you know when that site went up,
             23   whether it was October, November, December?  You
             24   just assumed that any site that you saw in January
             25   went up in October, November, December?  Is that

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              2   it?
              3           A.     No.
              4           Q.     Tell me.
              5           A.     I don't think any such assumption is
              6   made about when the site went up.  It is when we
              7   discovered the site.  The site could have been
              8   up --
              9           Q.     In January?
             10           A.     It could have been up -- it could
             11   have been up any period of time.  The question is
             12   when did we, as MPAA, discover the fact that the
             13   site existed.
             14           Q.     And you only discovered that in
             15   January?
             16                  MR. GARBUS:  Off the record.
             17                  (Discussion off the record.)
             18   BY MR. GARBUS:
             19           Q.     So before you made a list in
             20   January, you had already been aware that there were
             21   sites that either linked or posted deCSS?
             22           A.     That's correct.
             23           Q.     And then you started to put the list
             24   together in January?
             25           A.     That's my recollection, yes.

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              2   RQ             MR. GARBUS:  I would like all
              3           documentation you have concerning the first
              4           time you learned about these postings or
              5           linkings in November and December.  I would
              6           like a copy of that list.
              7           Q.     Who told you to make that list?  Was
              8   that your own decision?
              9           A.     I'm sorry.  What list?  I did not
             10   describe --
             11                  MR. COOPER:  Let's separate out
             12           the demand for the document, which was
             13           directed to me, and we will take it under
             14           advisement and we will determine whether
             15           it is subject to attorney-client
             16           privilege and work product doctrine.
             17                  Now he is asking you a follow-up
             18           question with respect to the creation
             19           of the document and asking whether you
             20           know who requested it be created in the
             21           first instance.
             22                  THE WITNESS:  But that's not what
             23           I understood his question to be.  The
             24           question, as I understood it, dealt with
             25           a list of sites that were found in

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              1                         Jacobsen
              2           November and December.  I don't know that
              3           they are on a list.
              4   BY MR. GARBUS:
              5           Q.     But you have some documentation in
              6   November and December of having known of certain
              7   sites?  They may be on a list?  They may be on a
              8   piece of paper; right?
              9           A.     That's correct.
             10           Q.     And then they are made into a list,
             11   more or less, in January?
             12           A.     I'm sorry, but that's not what I
             13   testified to.  At least I didn't intend to testify
             14   that way, if I did.  In January a list was
             15   commenced.  I don't know whether or not sites that
             16   were located in November and December --
             17           Q.     Are included?
             18           A.     -- were put on that list or whether
             19   they started with the first site they discovered in
             20   January or the day the list was created and worked
             21   forward.
             22           Q.     Now, that January list, has it been
             23   continually brought up-to-date?
             24           A.     Yes.
             25           Q.     On a daily basis?

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              2           A.     On a weekly basis.
              3           Q.     Have you downloaded in hard copy the
              4   results of those lists?
              5                  MR. COOPER:  I don't understand
              6           the question.
              7   RQ             MR. GARBUS:  Will you give me a copy
              8           of the disk, if there is one, that
              9           indicates what you did with this list after
             10           January and/or give me a copy of any papers
             11           that reflect the continuation of that list
             12           from the date it was first created until
             13           the present day?
             14                  MR. COOPER:  I will take it under
             15           advisement.
             16   BY MR. GARBUS:
             17                    
             18                    Confidential
             19 
             20 
             21 
             22 
             23           Q.     Did you ever check the sites to see
             24   whether or not those sites that said they posted
             25   deCSS or linked to deCSS actually did?

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              2           A.     Did I?
              3           Q.     Did you or did anyone at the MPAA?
              4           A.     Yes.  People at the MPAA have.
              5           Q.     So the list, then, is, if you will,
              6   a screened list in that if somebody says I'm
              7   linking to a deCSS site or imposing a deCSS site
              8   and you determine they weren't, then that
              9   particular site is not on the list?
             10           A.     That would be correct.
             11           Q.     Once you found a particular site
             12   that either linked or posted, did you download hard
             13   copy, papers about what was on the site?
             14           A.     I don't know the answer.
             15   RQ             MR. GARBUS:  Mr. Cooper, in the
             16           spirit of geniality, will you find out the
             17           answer immediately and give us any paper
             18           copies that there are immediately?
             19                  MR. COOPER:  I will take that, as
             20           well, under advisement.
             21 
             22 
             23                     Confidential  
             24 
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                              INTERIM COURT REPORTING
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              2
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              5
              6
              7
              8
              9
             10           Q.     You do know that some of the
             11   plaintiffs in the case, for example, Disney, have
             12   their own search engines?  Do you know that?
             13           A.     I do know that they do some of their
             14   own searching.  I don't know if they have their own
             15   search engine.
             16           Q.     Have you ever heard of something
             17   called Infoseek?
             18           A.     No.
             19           Q.     Have you ever heard of something
             20   called Go?
             21           A.     Yes.
             22           Q.     What is Go?
             23           A.     I believe that it is some internet
             24   provider that is, I believe, is now owned by the
             25   Disney Company.  I don't know exactly what Go does.

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              1                         Jacobsen
              2           Q.     Have you ever gone to any of the
              3   Disney search engines and seen whether or not they
              4   link to deCSS?
              5                  MR. COOPER:  Assumes facts not in
              6           evidence.  Calls for speculation.
              7           A.     I have not.
              8           Q.     Do you know whether any
              9   Disney-linked sites post deCSS?
             10           A.     I don't.
             11           Q.     Do you know how many people, if any,
             12   learned about deCSS through Disney-linked sites?
             13           A.     I don't.
             14           Q.     Would your answer be the same with
             15   respect to the other movie companies, assuming
             16   those that have search engines?
             17                  MR. COOPER:  It assumes facts not
             18           in evidence.  I don't know if any of them
             19           do.  Do you?
             20           A.     You are talking about only the ones
             21   that I am here to represent?
             22           Q.     Yes.
             23           A.     So Time Warner would be excluded?
             24           Q.     Yes.
             25           A.     My answer would be the same.  I

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              1                         Jacobsen
              2   don't know.
              3           Q.     At the time that cease and desist
              4   letters were sent, whenever they started to send
              5   the cease and desist letters, were any cease and
              6   desist letters sent by Disney to Disney?
              7           A.     I don't know that answer.
              8           Q.     Do you know if any cease and desist
              9   letters were sent to any plaintiffs in this case?
             10           A.     I don't know the answer to that.
             11           Q.     Do you know if there are any
             12   responses to any of the plaintiffs in this case to
             13   any cease and desist letters that may have been
             14   sent by any plaintiffs?
             15           A.     I think I lost it.  You are talking
             16   about do I know of any responses that one of the
             17   plaintiffs may have made to another plaintiff who
             18   sent --
             19                  MR. COOPER:  His question was just
             20           taken off of the last one.  He just asked
             21           you whether you knew of any cease and
             22           desist letters sent on behalf of the
             23           plaintiffs to any of the plaintiffs in
             24           connection with deCSS and now he is
             25           asking you whether there had been any

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           responses to any such letters that you
              3           were aware of.
              4                  THE WITNESS:  I don't know.
              5           Q.     Do you understand that Mr. Geckner
              6   has previously stated that it was the policy of the
              7   MPAA that there were different rules and
              8   regulations with respect to VCRs and DVDs in so far
              9   as fair use was involved?  Do you know that one way
             10   or the other?
             11                  MR. COOPER:  Assumes facts not in
             12           evidence.
             13           A.     I do not know.
             14           Q.     Do you know whether or not the MPAA
             15   has ever said that the fair use rules that apply to
             16   VCRs also apply to DVDs?
             17           A.     I do not.
             18           Q.     Do you know what the MPAA has said
             19   publicly about the fair use rules for libraries,
             20   universities, and academics?
             21           A.     I have seen a brochure that is put
             22   out.  Actually, that is not on fair use.  No, I
             23   don't.
             24           Q.     What is this brochure?
             25           A.     It was on public performance.  I was

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   thinking of the wrong question.  Sorry.
              3           Q.     Do you know who the counsel for DVD
              4   CCA is?  Weil Gotshal & Manges?
              5           A.     I know that that law firm represents
              6   them, yes.
              7           Q.     Have they ever been involved in any
              8   meetings that you have ever participated in with
              9   the MPAA people?
             10           A.     Yes.
             11           Q.     Where were these meetings?
             12           A.     There was one in Encino, California.
             13           Q.     Who was at the meeting?
             14           A.     Should I answer that?
             15                  MR. COOPER:  You can tell him who
             16           was present.
             17
             18
             19                     Confidential
             20
             21
             22
             23
             24
             25

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              2                     Confidential                      
              3           Q.     The good looking gentleman at the
              4   end of the table.
              5           A.     I can't remember the attorneys'
              6   name, but one of the attorneys from the Weil
              7   Gotshal law firm and some representatives from MEI.
              8                  MR. LITVACK:  I will stipulate to
              9           that.
             10           Q.     MEI?  What is that?
             11           A.     It's -- I always mispronounce
             12   this -- Matsushita and I don't know what the "EI"
             13   stands for, but it is basically the Matsushita
             14   company.
             15           Q.     Do you know which gentlemen from
             16   Matsushita were there?
             17           A.     I don't recall their names.
             18           Q.     Do you know what role they played
             19   with respect to CSS?
             20           A.     What role these gentlemen played
             21   with respect to CSS?
             22           Q.     What role Matsushita played with
             23   respect to CSS.
             24                  MR. COOPER:  I will let you get it
             25           from the witness.  I note that he is not

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           here to testify on that subject.  Another
              3           witness is.
              4           A.     Not specifically.
              5           Q.     Do you know that they were one of
              6   the companies that helped develop CSS?
              7           A.     I believe that is true.
              8           Q.     Do you know who the other companies
              9   were?
             10           A.     I don't.
             11           Q.     Do you know that the DVD CCA is
             12   composed of the companies that developed CSS?
             13           A.     I did not know that.
             14           Q.     How many Matsushita representatives
             15   were there?
             16           A.     I think there may have been five.
             17           Q.     What were their names?
             18           A.     I don't remember their names.
             19           Q.     Were any of them officers of the DVD
             20   CCA?
             21           A.     I don't know the answer to that
             22   question.
             23  
 
             24                     Confidential
             25  

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              2  
              3  
              4                     Confidential  
              5  
              6  
              7  
              8  
              9  
             10           A.     Yes.
             11           Q.     And the gentleman who you called
             12   senior vice president of technology --
             13           A.     Is not a lawyer.
             14           Q.     What is his area?
             15           A.     Technology.
             16           Q.     What is his background?
             17           A.     I don't know.  I am not familiar
             18   with his background.
             19           Q.     When did this meeting take place?
             20           A.     I don't remember the dates.
             21           Q.     Was this before or after you have
             22   your new job?
             23           A.     Before.
             24           Q.     Was it before the beginning of the
             25   year?

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              1                         Jacobsen
              2           A.     I think it was, but I really don't
              3   remember for sure.
              4           Q.     Was it after deCSS was published?
              5           A.     Yes.  I believe it was.
              6           Q.     Was this a meeting specifically
              7   addressed to the question of deCSS or were there
              8   other issues discussed, as well?
              9           A.     I don't remember.
             10           Q.     "I don't remember" to what?
             11           A.     What the topics were that were
             12   discussed and if there were any topics in addition
             13   to deCSS.
             14           Q.     So it is your memory that it may
             15   have been solely deCSS?
             16                  MR. COOPER:  I will let you answer
             17           just that much of the question and
             18           without any argument, Counsel, as long as
             19           you agree that that is not a waiver to
             20           the extent that there is any
             21           attorney-client privilege --
             22                  MR. GARBUS:  Nothing in that
             23           question is waived.
             24           A.     I don't recall if there were any
             25   other topics.

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              2           Q.     To your knowledge, were any of the
              3   Matsushita people involved with DVD CCA?
              4                  MR. COOPER:  Asked and answered.
              5           A.     I don't know.
              6           Q.     Was there anybody there designated
              7   as a DVD CCA employee?
              8                  MR. COOPER:  Asked and answered.
              9           A.     I don't know.
             10           Q.     What time did the meeting start?
             11           A.     I don't recall.
             12           Q.     Was a memo made by you of that
             13   meeting?
             14           A.     No.
             15           Q.     To your knowledge, was a memo made
             16   by anyone at MPAA of that meeting?
             17           A.     Not to my knowledge.
             18           Q.     Is this before the California
             19   lawsuit was started by the DVD CCA?
             20           A.     I don't remember.
             21           Q.     Was it after a judge's decision in
             22   the DVD CCA lawsuit?
             23           A.     I don't remember.
             24           Q.     Was the meeting more or less than
             25   two hours?

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              2           A.     I don't remember for sure.  It was
              3   fairly lengthy, but I don't remember.
              4           Q.     Four hours?
              5           A.     I don't think it was four hours.
              6           Q.     Three hours?
              7           A.     Possibly.
              8                  MR. GARBUS:  Off the record.
              9                  (Discussion off the record.)
             10   BY MR. GARBUS:
             11           Q.     Can you tell me what was discussed
             12   at that meeting?
             13                  MR. COOPER:  At this point, I want
             14           to confer with the witness to determine
             15           whether we have a privilege to assert.
             16                  MR. GARBUS:  Let me ask the
             17           questions.
             18           Q.     Who called you to the meeting?
             19                     Confidential
             20           Q.     Did he tell you at whose request the
             21   meeting was happening?
             22           A.     I don't remember.
             23           Q.     Did you know walking into the room
             24   that you were going to discuss deCSS?
             25           A.     I don't remember.  Possibly, but I

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              1                         Jacobsen
              2   don't remember.
              3           Q.     Do you generally walk into meetings
              4   when you don't know what is going to happen in the
              5   room?
              6           A.     Occasionally.
              7           Q.     In this particular case, your best
              8   memory is that you didn't know what was going to
              9   happen?
             10           A.     My best memory is I don't remember
             11   whether I knew or not.
             12           Q.     Did you ask Mr. Hirsch before you
             13   went into the meeting?
             14           A.     I don't remember.
             15           Q.     Where physically did the meeting
             16   take place in your building?
             17           A.     On the first floor, in a conference
             18   room.
             19           Q.     How big was the conference room?
             20           A.     Roughly the same size as this
             21   conference room.
             22           Q.     The table is about 35 feet, with
             23   about seats for 15 people?
             24           A.     Roughly.
             25           Q.     Were all the sites occupied?

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              1                         Jacobsen
              2           A.     I don't think so.
              3           Q.     How did your senior vice president
              4   in charge of technical areas get to the meeting?
              5                  MR. COOPER:  Calls for
              6           speculation, lacks foundation.
              7           Q.     If you know.  Did you invite him to
              8   the meeting?
              9           A.     I did not invite him.
             10           Q.     You didn't invite anybody to the
             11   meeting?
             12           A.     That's correct.
             13           Q.     Did you at any time ask Mr. Litvack
             14   to come to the meeting?
             15           A.     No.
             16           Q.     Did you call any Proskauer people to
             17   come to the meeting?
             18           A.     No.
             19           Q.     Is it your understanding that Weil
             20   Gotshal called the meeting?
             21           A.     I don't have an understanding of how
             22   the meeting was called.
             23                     Confidential
             24
             25                  MR. COOPER:  Asked and answered.

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           A.     I do not know.
              3           Q.     How about the gentleman who is the
              4   senior vice president?
              5                  MR. COOPER:  If you are asking
              6           about MPAA people, you already asked him
              7           whether anybody at the MPAA, to his
              8           knowledge, made a memorandum and he
              9           answered no.  That would include those
             10           people, as well.
             11           Q.     Did you ever see any memorandum of
             12   that meeting?
             13           A.     I did not.
             14           Q.     Do you know if any of the Matsushita
             15   people made a memorandum of that meeting?
             16           A.     I do not know.
             17           Q.     Did you see anybody making notes at
             18   the meeting while you were there?
             19           A.     I don't remember.
             20           Q.     Other than that meeting, have you
             21   ever had any other meetings with anyone at Weil
             22   Gotshal concerning deCSS or DVDs?
             23           A.     Are you talking about face-to-face
             24   meetings?
             25           Q.     Well, let's start with first

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              1                         Jacobsen
              2   face-to-face and then we will get to telephone
              3   calls.
              4           A.     I don't remember having any other
              5   face-to-face meetings with Weil Gotshal people.
              6           Q.     Any other face-to-face meetings with
              7   any of these people at Matsushita?
              8           A.     No.
              9           Q.     Any face-to-face meetings with
             10   anybody else at DVD CCA?
             11           A.     No.
             12                  MR. COOPER:  It assumes facts not
             13           in evidence since he hasn't been able to
             14           tell you whether these people were
             15           representatives of DVD CCA.
             16           Q.     Did you have telephone conversations
             17   with anyone at Weil Gotshal?
             18           A.     I have not, but I have been present
             19   with counsel when telephone --
             20           Q.     Which counsel?
             21           A.     Mark Litvack.
             22                  -- when telephone conversations were
             23   had.
             24           Q.     How many such conversations?
             25           A.     I remember one.  I don't recall if

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              1                         Jacobsen
              2   there were more than that or not.
              3           Q.     You never had any conversations,
              4   yourself, directly with Weil Gotshal?
              5           A.     That's correct.
              6           Q.     So the only conversations you know
              7   are the conversations that Litvack had with Weil
              8   Gotshal?
              9           A.     That's correct.
             10           Q.     Do you know how many such
             11   conversations he had with Weil Gotshal?
             12           A.     No, I don't.
             13           Q.     Do you know whether he ever saw any
             14   of the DVD CCA papers before they were filed?
             15                  MR. COOPER:  You are talking about
             16           the court papers now?
             17                  MR. GARBUS:  Yes.
             18           A.     I don't know.
             19           Q.     Do you know whether he had any
             20   discussions with Weil Gotshal concerning any aspect
             21   of the DVD CCA case?
             22                  MR. COOPER:  Other than what he
             23           just testified to.
             24           A.     I don't know.
             25           Q.     Do you know if he was in court when

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              1                         Jacobsen
              2   Mr. Barsky was in court at any of the DVD CCA
              3   proceedings?
              4           A.     I don't think Mr. Litvack was in
              5   court.  I don't know if Mr. Barsky was.
              6           Q.     Do you know if any MPAA lawyer was
              7   in court?
              8           A.     Yes.
              9           Q.     Who?
             10           A.     Lori Donahue.
             11           Q.     When was she in court?
             12           A.     If I remember correctly, she was in
             13   court the day arguments were presented for -- I
             14   believe they asked for a temporary restraining
             15   order.  I'm not sure, but there were arguments
             16   about a motion that had been made and she was there
             17   to listen to the arguments.
             18           Q.     Did you see the transcript of that
             19   argument?
             20           A.     I did not.
             21           Q.     Do you know whether she identified
             22   herself as being present in the courtroom?
             23           A.     I don't know.
             24           Q.     Do you know whether she was
             25   designated in the transcript as a lawyer who was

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              1                         Jacobsen
              2   present in the courtroom?
              3           A.     I don't know.
              4           Q.     Was there any discussion that you
              5   had with her at any time about whether or not she
              6   should be in the courtroom?
              7           A.     With me?
              8           Q.     Yes.
              9           A.     No.
             10           Q.     Do you know how she got into the
             11   courtroom?  Who told her to go there?
             12           A.     I don't know.
             13           Q.     Do you know if she was told
             14   specifically not to identify herself to the court?
             15           A.     I'm sorry?
             16                  MR. COOPER:  One thing at a time.
             17           If you believe we have already intruded
             18           into the privilege, why don't we take a
             19           break.
             20                  MR. LITVACK:  Let's take a break.
             21                  (Counsel consulted with witness.)
             22   DI             MR. COOPER:  Just so we are clear,
             23           to the extent that the witness is aware of
             24           any specific communications, and I think he
             25           is about to tell you he is not aware of any

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              1                         Jacobsen
              2           specific communications --
              3                  MR. GARBUS:  Between who?
              4                  MR. COOPER:  Between him and
              5           Ms. Donahue who is one of the attorneys
              6           for the MPAA.
              7                  To the extent that he is aware
              8           of the substance of those
              9           communications, I admonish him not to
             10           reveal the substance of those
             11           communications.
             12   BY MR. GARBUS:
             13           Q.     Do you know of any lawyers from Weil
             14   Gotshal, if they were present at the court
             15   appearance here when an injunction was sought by
             16   the MPAA?
             17           A.     I don't know if they were or were
             18   not.
             19           Q.     Do you know if any lawyers from the
             20   DVD CCA were present?
             21           A.     I have no knowledge.
             22           Q.     To your knowledge, have the lawyers
             23   from the MPA, the DVD CCA, including in-house
             24   lawyers and their outside counsel, been exchanging
             25   documents concerning these two cases?

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              1                         Jacobsen
              2   DI             MR. COOPER:  If you know the answer
              3           to that question from an unprivileged
              4           source, then you can answer.  Otherwise, I
              5           want you to state that the only information
              6           that you have on that is from a privileged
              7           source.
              8           A.     I have no knowledge.
              9           Q.     Were you ever told of the result of
             10   what the DVD CCA obtained in the California court?
             11   Namely, the granting of an injunction?
             12           A.     I'm sorry.  Did I ever --
             13                  MR. COOPER:  He hasn't finished, I
             14           don't think.
             15                  MR. GARBUS:  I did.
             16           A.     Were you asking me if I ever found
             17   out what the result was?
             18           Q.     Yes.
             19           A.     Yes.
             20           Q.     From who?
             21           A.     I think from either Lori or Mark
             22   Litvack.  Lori Donahue or Mark Litvack.
             23           Q.     Do you know if they told you within
             24   the hour of the result?
             25   DI             MR. COOPER:  Having gone farther

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           than I think is appropriate already with
              3           respect to communications with counsel, I
              4           don't want to give details of those
              5           communications.
              6           Q.     Do you know if it was an hour after
              7   the court decision?
              8                  MR. COOPER:  You are asking
              9           specifically about a substantive
             10           communication with counsel?
             11                  MR. GARBUS:  Just the timing of
             12           it, yes.
             13           Q.     In other words, did you learn within
             14   an hour after the California's court rendering of
             15   the injunction that that injunction had been
             16   granted?
             17                  MR. COOPER:  This is well beyond
             18           the purview of the witness' designation
             19           as a witness for the parties in this
             20           action or the MPAA.  I'm not sure what
             21           purpose can be served by it.
             22           Q.     Do you know if the MPAA originally
             23   got its information about the websites from the DVD
             24   CCA?
             25                  MR. COOPER:  You are talking about

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              1                         Jacobsen
              2           the posters and linkers that had been
              3           referred to earlier this afternoon in
              4           your colloquy with the witness?
              5                  MR. GARBUS:  Yes.
              6           A.     About posters and linkers who are
              7   posting and linking DVD CSS?
              8           Q.     Yes.
              9           A.     I don't know.
             10 
             11 
             12                     Confidential 
             13 
             14 
             15                  MR. COOPER:  We are talking
             16           specifically November-December?
             17                  MR. GARBUS:  Yes.
             18                  MR. COOPER:  If you don't know,
             19           that's the easy answer.
             20           A.     I don't know.
             21                  MR. GARBUS:  That's a little
             22           leading.
             23                  MR. COOPER:  I didn't mean it that
             24           way.  Please, let's not let -- the
             25           witness was waiting for me to state an

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           objection on privilege.  That's
              3           meaningless if he doesn't know the
              4           answer, in any case.
              5
              6                     Confidential
              7
              8
              9           A.     You are asking me if I know of
             10   anybody --
             11           Q.     At your place to anybody at their
             12   place.
             13           A.     To DVD CCA?
             14           Q.     Yes.
             15           A.     I don't know of any specific
             16   communications.
             17   RQ             MR. GARBUS:  Would you give me any
             18           documents, Mr. Cooper, that refer to any
             19           communications between DVD CCA and MPAA
             20           from October 1st to the present that are
             21           not privileged and if you claim the
             22           privilege, just let me know and log the
             23           existence of those documents.
             24                  I am referring to conversations
             25           concerning DVDs, DMCA, deCSS and CSS.

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2                  MR. COOPER:  I will take it under
              3           advisement.
              4           Q.     Sir, do you know what CSS-auth is?
              5           A.     I do not.
              6           Q.     Have you ever heard or seen that?
              7           A.     I believe I have heard of CSS-auth,
              8   but I don't recall in what context.
              9           Q.     Do you know what it is?
             10           A.     No.
             11           Q.     How about CSS-cat?
             12           A.     I don't think I ever heard of that.
             13           Q.     Do you know what an ATI Capture Card
             14   is?
             15           A.     I don't.
             16           Q.     Do you know what a DOD's Ripper is?
             17           A.     No.
             18           Q.     After the cease and desist letters
             19   went out, I think you have indicated that there
             20   were responses to some of them and that some of the
             21   sites took down the posting of the linking.  Do you
             22   have records with respect to which sites took down
             23   either linking or posting?
             24   DI             MR. COOPER:  Without going into any
             25           more of the substance with respect to any

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           such documents at least until we determine
              3           whether they are entitled to some
              4           privilege, you can answer that question
              5           "yes" or "no."
              6           A.     Yes.
              7                  MR. GARBUS:  What was the
              8           question?
              9                  (Record read.)
             10   RQ             MR. GARBUS:  Will you give them to
             11           me, Mr. Cooper?
             12                  MR. COOPER:  I will take it under
             13           advisement.
             14   BY MR. GARBUS:
             15           Q.     After the first meeting or maybe the
             16   only meeting with the Matsushita people, did you
             17   ever speak to anyone again from Matsushita
             18   concerning deCSS or DVDs?  By "you," I mean you,
             19   Motion Picture Association or any of the
             20   plaintiffs.
             21                  MR. COOPER:  Whether anybody at
             22           the member companies or the MPAA had any
             23           communications of which the witness is
             24           aware of with any representative of
             25           Matsushita after the meeting he referred

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           to?
              3                  MR. GARBUS:  Yes.
              4                  MR. COOPER:  On any topic?
              5                  MR. GARBUS:  Relating to deCSS,
              6           DVDs or the DMCA or the DVD CCA.
              7                  MR. COOPER:  That is a "yes" or
              8           "no" question.
              9           A.     I'm sorry.  DeCSS, DVDs?  DVDs
             10   generally?
             11           Q.     Yes.
             12           A.     I would say yes.
             13           Q.     Tell me about that.
             14           A.     I don't have any specific knowledge,
             15   but there is a Copyright Protection Technology
             16   Working Group and it's my understanding that
             17   Matsushita would be a member of that group.  I know
             18   that MPAA attends and I know that representatives
             19   and member companies attend.
             20                  I believe they meet on a very set
             21   schedule of at least once a month.  So, I am
             22   assuming that there have been meetings with those
             23   people that were present and they probably would
             24   have discussed in a huge general forum DVD and DVD
             25   protection.

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           Q.     As a matter of fact, there was a
              3   meeting on 4/2000 by this group, which included
              4   members of Weil Gotshal, Proskauer Rose, DVD CCA,
              5   and the MPAA; isn't that right?
              6           A.     I am not familiar with the meeting.
              7           Q.     Do you know that there is an
              8   attendance record kept of those meetings?
              9           A.     I don't.
             10           Q.     Have you ever been to one of those
             11   meetings?
             12           A.     No.
             13           Q.     Tell me something about what that
             14   working group is.
             15           A.     My understanding of the working
             16   group, recognizing the fact that I am not involved
             17   in it, my understanding is that it is a working
             18   group to try to develop technologies which can be
             19   agreed upon by the content providers and the
             20   manufacturers of hardware equipment to protect
             21   intellectual property.
             22           Q.     Do you know how long the meetings
             23   take place each month?
             24           A.     I don't.
             25           Q.     Do you know where they take place?

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           A.     I know some of them have taken
              3   place -- I think they take place in Southern
              4   California.
              5           Q.     When you say Southern California,
              6   are we talking about Los Angeles?
              7           A.     The Los Angeles area, that's
              8   correct.
              9           Q.     Do you know who sits on the board of
             10   this group or pulls this group together?
             11                  MR. COOPER:  This is plainly
             12           outside of this witness' knowledge and it
             13           is outside of the area for which he was
             14           designated as a witness for the parties
             15           in the MPAA, excluding Warner Brothers.
             16                  I am happy to have you establish
             17           a foundation for his lack of knowledge
             18           if that is really where we are going,
             19           but you are getting into a level of
             20           detail he plainly can't answer.
             21           Q.     Do you know which members of the
             22   MPAA representatives attended these meetings?
             23           A.     I believe Brad Hunt attends and I
             24   know Fritz Attaway has attended.  I don't know if
             25   he still attends or not.

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           Q.     Who is Brad Hunt?
              3           A.     Brad Hunt is based in Encino.  He is
              4   senior vice president and chief technology of MPAA.
              5           Q.     Is this meeting an all-day meeting?
              6                  MR. COOPER:  Talking about the
              7           regular meeting or the February 4th
              8           meeting?
              9                  MR. GARBUS:  February 4th meeting.
             10                  MR. COOPER:  He doesn't have any
             11           knowledge about that.
             12                  MR. GARBUS:  The regular meetings.
             13           A.     If you were referring to the
             14   February 4th meeting before, I don't know who
             15   attended.
             16           Q.     How long do these meetings take
             17   place?  Is it a day-long meeting?  A lunch?
             18           A.     I don't know.
             19           Q.     Do you know if records are kept of
             20   those meetings or minutes?
             21           A.     I do not know.
             22           Q.     Have you ever seen any minutes?
             23           A.     No.
             24           Q.     Do you know who is the head of this
             25   particular group?

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           A.     I don't.
              3           Q.     Are Brad and Fritz permanent members
              4   of the group or does the MPAA rotate the people
              5   that they send to these groups?
              6                  MR. COOPER:  He is not the right
              7           person to answer these questions.
              8           A.     I don't know.
              9           Q.     Who would know the answer?
             10 
             11                     Confidential
             12 
             13 
             14 
             15 
             16   RQ             MR. GARBUS:  I ask for all
             17           correspondence between the MPAA and the DVD
             18           CCA, with each other and with Matsushita,
             19           concerning deCSS, CSS, DMCA, particularly
             20           after October 1st to date.
             21                  I would also request copies of
             22           minutes, if any, or any other documents
             23           relating to the copyright working groups'
             24           discussion of deCSS, DVDs, DMCA, or any
             25           other matter relevant to this lawsuit.

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2                  It is my belief that privileges that
              3           have been asserted here were all
              4           substantially waived by the conversations
              5           that took place at these meetings.  So, I
              6           would like to see any documentation you
              7           have concerning what was said at these
              8           meetings, to the extent that the MPAA is a
              9           member of those meetings.
             10                  I would like to know each and every
             11           person who attended from October 1st on.  I
             12           would like to see any records that the MPAA
             13           has of any of those meetings, if there were
             14           any memoranda made by anyone, since I do
             15           believe the privilege was waived.  I will
             16           get back to that further, at another time.
             17                  MR. GARBUS:
             18   RL      Q.     Now, at this meeting at your offices
             19   with the Matsushita people, Weil Gotshal and
             20   yourselves, tell me what was said.
             21   DI             MR. COOPER:  I am going to take
             22           under advisement whether the witness is
             23           entitled to testify about the substance of
             24           that meeting.  My understanding is that the
             25           sole subject of the meeting may have been

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           matters as to which the parties are
              3           entitled to a joint privilege and for that
              4           reason, at least at this point in time, I
              5           need to take under advisement whether that
              6           privilege is going to be asserted.
              7   BY MR. GARBUS:
              8           Q.     Did Matsushita have any of their own
              9   lawyers there?  Do you know?
             10           A.     My recollection is several of the
             11   attendees were lawyers, yes.
             12           Q.     So Matsushita had its lawyers?
             13           A.     Yes.
             14           Q.     Do you know whether or not a joint
             15   document was signed --
             16                  MR. GARBUS:  Off the record.
             17                  (Recess taken.)
             18   BY MR. GARBUS:
             19           Q.     Do you know whether a joint document
             20   was signed by the lawyers concerning the
             21   confidentiality of that meeting or a joint defense
             22   agreement, or any other document which was intended
             23   to insulate the meeting and keep it within the
             24   attorney-client privilege?
             25                  MR. COOPER:  And that meeting is

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           the meeting between representatives of
              3           the MPAA, Matsushita, Weil Gotshal, and
              4           others that he has described in his
              5           testimony?
              6                  MR. GARBUS:  Yes.
              7                  MR. COOPER:  A joint document.
              8           Are you aware of such a document?
              9           A.     I am not aware of any such document.
             10                  MR. GARBUS:  Please mark Exhibit
             11           14.  This is the attendance list at the
             12           February 2000 Copy Protection Technical
             13           Working Group meeting, as I understand
             14           it.
             15                  (Defendants' Exhibit 14, attendance
             16           list at the February 2000 Copy Protection
             17           Technical Working Group meeting, marked for
             18           identification, as of this date.)
             19   BY MR. GARBUS:
             20           Q.     I show it to you and I ask you
             21   whether or not it refreshes your recollection as to
             22   the names of any of the Matsushita people who were
             23   present at the meeting that you had in December at
             24   your offices.
             25                  MR. COOPER:  First of all, let the

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           witness have an opportunity to look at
              3           this two-and-a-half-page document that
              4           has been marked Exhibit 14 and secondly,
              5           I don't recall the witness testifying to
              6           the meeting being in December.  I thought
              7           I remembered him not -- the meeting you
              8           were referring to, the oral face-to-face
              9           meeting to which the witness has
             10           testified.
             11                  I believe he was unable to fix
             12           it in time and I believe your question
             13           fixed it in time in December.  I may be
             14           in error, but that's my best
             15           recollection.
             16   BY MR. GARBUS:
             17           Q.     My understanding is that you said it
             18   was in December.
             19           A.     I said I didn't remember.
             20           Q.     But it was sometime prior to
             21   January 1st and sometime after deCSS was first
             22   released.  So, it would be November or December or
             23   maybe the end of October?
             24           A.     That would probably be correct.
             25                  MR. COOPER:  He has drawn your

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2           attention to, on this Exhibit 14, the
              3           names of a number of people who are
              4           listed as representatives of Matsushita
              5           Electric and he is asking whether seeing
              6           that name on this list refreshes your
              7           recollection as to whether they were
              8           among the people who attended the meeting
              9           that you testified to.
             10                  THE WITNESS:  It does not.  None
             11           of the names refresh my recollection.
             12           Q.     Now let me address your attention to
             13   the alleged lawyer from Weil Gotshal & Manges -- he
             14   is not an alleged lawyer.  He was a lawyer who was
             15   allegedly at the meeting.
             16                   -- and see if that refreshes your
             17   recollection as to whether he was the lawyer at
             18   your meeting.  I am having trouble finding it.
             19   Withdraw the question.  I am not finding it.
             20                  Do you know John Baumgarten from
             21   Proskauer Rose?
             22           A.     I know -- I have never met
             23   Mr. Baumgarten, but I do know generally that he
             24   works for Proskauer Rose as a lawyer.
             25           Q.     And you know he made a court

                              INTERIM COURT REPORTING
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              1                         Jacobsen
              2   appearance in this case?
              3           A.     I don't know.  He made a court
              4   appearance.  I know that he has been part of the
              5   defense team in this case.
              6                  MR. COOPER:  Prosecution.
              7                  THE WITNESS:  I'm sorry.
              8           Prosecution.
              9                  MR. GARBUS:  Off the record.
             10                  (Discussion off the record.)
             11   BY MR. GARBUS:
             12           Q.     Do you know whether or not at the
             13   meeting where you identify the people as coming
             14   from Matsushita, any of them came from Toshiba, as
             15   well?
             16                  MR. COOPER:  You are asking
             17           whether any of the people that the
             18           witness understood were from Matsushita
             19           also represented Toshiba at the same
             20           meeting?
             21                  MR. GARBUS:  Yes.
             22           A.     To my knowledge, they were all from
             23   Matsushita.
             24           Q.     You do know that Toshiba is also one
             25   of the companies that was involved in the creation

                              INTERIM COURT REPORTING
                                                                 201
              1                         Jacobsen
              2   of CSS; is that right?
              3           A.     I did not know that.
              4           Q.     Do you know that they are one of the
              5   companies that helped form DVD CCA?
              6           A.     Do not know that.
              7                  MR. COOPER:  You have already
              8           asked those precise questions.  I think
              9           he already testified that he doesn't know
             10           and he is not designated to testify to
             11           those issues.
             12           Q.     Do you, at any time -- when I say
             13   "you," I mean Motion Picture Association -- speak
             14   to any representatives of Toshiba, Matsushita, or
             15   any of the companies that helped form DVD CCA after
             16   January 1st?
             17                  MR. COOPER:  That is also outside
             18           of the purview of his testimony.
             19           A.     Can I answer?
             20                  MR. COOPER:  To your knowledge.
             21           A.     Not as far as I know.
             22           Q.     Do you have any records which would
             23                     Confidential
             24   speak to any Toshiba, Matsushita people?
             25                  MR. COOPER:  To the extent that it

                              INTERIM COURT REPORTING
                                                                 202
              1                         Jacobsen
              2           relates to --
              3                  MR. GARBUS:  -- deCSS, DVD, DMCA.
              4                  MR. COOPER:  The only meaningful
              5           response you are going to get from this
              6           witness on that topic would be within the
              7           areas for which he is designated, which
              8           would include piracy and efforts to stop
              9           the proliferation of deCSS.
             10                  My guess is you will find from
             11           other witnesses being provided on other
             12           topics that you may get a different
             13           answer.
             14                  MR. GARBUS:  Thank you.
             15           Q.     Do you know what a Windows Ripper
             16   is?
             17           A.     No.
             18           Q.     Do you know what a Power Ripper is?
             19           A.     I don't.
             20           Q.     Do you know what DAT tapes are?
             21           A.     Generally.
             22           Q.     What are they?
             23           A.     It's a digital audio tape, I
             24   believe.
             25           Q.     Do you know what the term "anonymous

                              INTERIM COURT REPORTING
                                                                 203
              1                         Jacobsen
              2   source" means?
              3                  MR. COOPER:  In the abstract?
              4                  MR. GARBUS:  No.  With reference
              5           to the deCSS program.
              6           A.     I have never heard the term.
              7                  MR. GARBUS:  Let's take a break
              8           and we will start tomorrow promptly at
              9           9:30 a.m.
             10                  (Time noted:  4:10 p.m.)
             11
             12
             13                  ______________________________________
             14                          KENNETH A. JACOBSEN
             15
             16
             17           Subscribed and sworn to before me
             18           this____ day of___________, 2000.
             19
             20           __________________________________
             21           NOTARY PUBLIC
             22
             23
             24
             25

                              INTERIM COURT REPORTING
                                                                 204
              1                             
              2                  C E R T I F I C A T E
              3   STATE OF NEW YORK )
              4                       ) ss.:
              5   COUNTY OF RICHMOND)
              6                 I, ELIZABETH SANTAMARIA, a Shorthand
              7           Reporter and Notary Public within and for
              8           the State of New York, do hereby certify:
              9                 That KENNETH A. JACOBSEN, the witness
             10           whose deposition is hereinbefore set forth,
             11           was duly sworn by me, and that such
             12           deposition is a true record of the
             13           testimony given by such witness.
             14                 I further certify that I am not
             15           related to any of the parties to this
             16           action by blood or marriage; and that I am
             17           in no way interested in the outcome of this
             18           matter.
             19                 IN WITNESS WHEREOF, I have hereunto
             20           set my hand this 18th day of May, 2000.
             21
             22                            _____________________________
             23                                 ELIZABETH SANTAMARIA
             24
             25

                              INTERIM COURT REPORTING
                                                                 205
              1                             
              2   ------------------ I N D E X ------------------
              3   WITNESS              EXAMINATION BY       PAGE
              4   KENNETH A. JACOBSEN     MR. GARBUS         4
              5
              6   ----------- INFORMATION REQUESTS --------------
              7   DIRECTIONS:  24, 71, 75, 79, 119, 122, 182, 184,
              8               188, 195
              9   RULINGS: 71, 75, 78, 79, 121, 195
             10   REQUESTS:  11, 13, 35, 57, 62, 68, 107, 126, 129,
             11             145, 146, 154, 156, 157, 160, 163, 187,
             12             189, 194
             13   ------------------- EXHIBITS -----------------------
             14   DEFENDANTS'                                 FOR I.D.
             15   Defendants' Exhibit 10, Declaration
             16   of Robin Gross.................................  5
             17   Defendants' Exhibit 11, three-page letter,
             18   dated May 15, 2000............................. 35
             19   Defendants' Exhibit 12, four-page document titled
             20   "1st Story of Level 1 printed in Full Format,
             21   Copyright 2000 Toronto Star Newspapers, Ltd.
             22   The Toronto Star".............................. 49
             23   Defendants' Exhibit 13, three-page document
             24   dated 2/8/00................................... 72
             25

                              INTERIM COURT REPORTING
                                                                 206
              1                             
              2   --------------- I N D E X  (C O N T'D) --------------
              3   ------------------- EXHIBITS -----------------------
              4   DEFENDANT'S                                  FOR I.D.
              5   Defendants' Exhibit 14, attendance list at the
              6   February 2000 copy protection technical working
              7   group meeting................................... 197
              8
              9                         --o0o--
             10
             11
             12
             13
             14
             15
             16
             17
             18
             19
             20
             21
             22
             23
             24
             25

                              INTERIM COURT REPORTING


 
                                                            207
 
         1
         2                 UNITED STATES DISTRICT COURT
         3            FOR THE SOUTHERN DISTRICT OF NEW YORK
         4
                UNIVERSAL CITY STUDIOS, INC.,     )
         5      PARAMOUNT PICTURES CORPORATION,   )
                METRO-GOLDWYN-MAYER STUDIOS, INC.,)
         6      TRISTAR PICTURES, INC., COLUMBIA  )
                PICTURES INDUSTRIES, INC., TIME   )
         7      WARNER ENTERTAINMENT CO., L.P.,   )
                DISNEY ENTERPRISES, INC., and     )
         8      TWENTIETH CENTURY FOX FILM        )
                CORPORATION,                      )
         9                                        )
                              Plaintiff(s),       )
        10                                        )
                           vs.                    )
        11                                        )
                ERIC CORLEY a/k/a "EMMANUEL       )
        12      GOLDSTEIN" and 2600 ENTERPRISES,  )
                INC.,,                            )
        13                                        )
                              Defendant(s).       )
        14      ----------------------------------)
        15
        16                   CONTINUED DEPOSITION OF
        17                     KENNETH A. JACOBSEN
        18                      New York, New York
        19                    Thursday, May 18, 2000
        20
        21                   
        22
        23
        24
                Reported by:
        25      MAYLEEN CINTRON
 
 
                              INTERIM COURT REPORTING
                                                            208
 
         1
         2
         3                            May 18, 2000
         4                            9:30 a.m.
         5
         6                 Continued Deposition of Kenneth A.
         7           Jacobsen, held at the offices of Frankfurt
         8           Garbus Klein & Selz, PC, 488 Madison Avenue,
         9           New York, New York, pursuant to adjournment,
        10           before MayLeen Cintron, a Notary Public of
        11           the State of New York.
        12
        13
        14
        15
        16
        17
        18
        19
        20
        21
        22
        23
        24
        25
 
 
                              INTERIM COURT REPORTING
                                                            209
 
         1
         2      A P P E A R A N C E S:
         3
         4           PROSKAUER ROSE, LLP
         5           Attorneys for Plaintiffs
         6                 2049 Century Park East, Suite 3200
         7                 Los Angeles, California 90067-3206
         8           BY:   SCOTT P. COOPER, ESQ.
         9
        10           MARK D. LITVACK, ESQ.
        11           Vice president and director,
        12           Legal Affairs, Worldwide Anti-Piracy
        13           Motion Picture Association
        14                 15503 Ventura Boulevard
        15                 Encino, California 91436
        16
        17           FRANKFRUT GARBUS KLEIN & SELZ, PC
        18           Attorneys for Defendants
        19                 488 Madison Avenue
        20                 New York, New York 10022
        21           BY:   EDWARD HERNSTADT, ESQ.
        22
        23                             o0o
        24
        25
 
 
                              INTERIM COURT REPORTING
                                                            210
 
         1
         2      K E N N E T H    A.    J A C O B S E N,    having
         3           been previously sworn, resumed as a witness
         4           and testified further as follows:
         5      CONTINUED EXAMINATION BY
         6      MR. HERNSTADT:
         7           Q.    Good morning.  I'm Ed Hernstadt for
         8      the Defendants in this case.  I will be deposing
         9      you today.
        10                 I take it that you have been deposed
        11      before?
        12           A.    I'm not sure that I have been.  I
        13      can't remember ever being deposed.
        14           Q.    Really?
        15           A.    Yes.
        16           Q.    25 years in the FBI and you never
        17      had --
        18           A.    No, I don't think so.
        19           Q.    Have you testified at trial?
        20           A.    Yes.
        21           Q.    So you are aware of what's implicated
        22      in testifying under oath and the seriousness of
        23      that?
        24           A.    Yes.
        25           Q.    Let me ask you:  During your career
 
 
                              INTERIM COURT REPORTING
                                                            211
 
         1                     Jacobsen  
         2      with the FBI, did you ever handle cases that
         3      dealt with piracy or with some of the types of
         4      things that you're responsible for now?
         5           A.    I don't recall ever being assigned to
         6      a squad that worked copyright violations.
         7           Q.    But any kind of an overlap in terms of
         8      your prior experience?
         9           A.    No.
        10           Q.    What kind of cases were you doing?
        11           A.    During my career, I worked fugitives;
        12      I worked national security cases; I worked white
        13      collar crime investigations; I was our in-house
        14      legal advisor for a number of years; I worked
        15      drug cases on the task force with the DEA.
        16                 I then became a supervisor of the
        17      first drug squad in Los Angeles when the FBI had
        18      and ran that program.  I then became the
        19      supervisor of our major case squad which would
        20      have been high-jacking, extortions, fugitives,
        21      kidnappings.  Those types of violations.
        22                 I then became the supervisor of our
        23      special operations group, which was a
        24      surveillance group that supported Investigations.
        25      And at the end of my career I was the bank
 
 
                              INTERIM COURT REPORTING
                                                            212
 
         1                     Jacobsen  
         2      robbery squad supervisor.
         3                 MR. COOPER:  That's all.
         4           Q.    Yesterday you mentioned the names of
         5      people at the Plaintiffs who dealt with piracy.
         6      Let me ask you:  Are there any people at each of
         7      the Plaintiffs, of course, excluding Time Warner,
         8      that deal with the non-proliferation of DeCSS?
         9                 MR. COOPER:  Why don't you read back
        10           that question?
        11                 (Record read.)
        12                 MR. COOPER:  I just want to take us
        13           back to the limitation on the answer that
        14           was given yesterday.  I think the witness
        15           clarified that he was referring to people
        16           other than the in-house litigators at each
        17           of the studios who were involved in one way
        18           or the other with this and the other DeCSS
        19           litigations.
        20                 So are you asking a different question
        21           than that?
        22                 MR. HERNSTADT:  Yes.
        23                 MR. COOPER:  In what way are you
        24           asking; people who may be tangentially
        25           involved?
 
 
                              INTERIM COURT REPORTING
                                                            213
 
         1                     Jacobsen  
         2                 MR. HERNSTADT:  No.  People that he
         3           works with other than the lawyers.
         4           Q.    Or people you have talked to other
         5      than the lawyers who have anything to do with
         6      DeCSS or the non-proliferation of DeCSS?
         7                 MR. COOPER:  All such people at the
         8           studios?
         9                 MR. HERNSTADT:  Yes.
        10           A.    Any people that I have been involved
        11      with in discussions on DeCSS have been within the
        12      context of the attorney/client relationship.
        13           Q.    Can you be a little more clearer on
        14      that?
        15                 MR. COOPER:  I just want to
        16           distinguish.  I think what you are saying I
        17           understand.  He's entitled, even if a
        18           conversation may be privileged as to a
        19           substance, the fact of the conversation and
        20           the persons with whom you may have had it
        21           are fair areas of inquiry.
        22                 THE WITNESS:  Okay.
        23                 MR. COOPER:  So the question, as I
        24           understand it, is who besides the lawyers at
        25           the studios and besides the seven people
 
 
                              INTERIM COURT REPORTING
                                                            214
 
         1                     Jacobsen  
         2           that you identified yesterday are persons
         3           with whom you had communications at the
         4           studios specifically regarding the efforts
         5           to curtail the proliferation of DeCSS.
         6           Correct?
         7                 MR. HERNSTADT:  Yes.
         8           A.    You are asking me people who are not
         9      involved as the lawyers representing the studios
        10      in putting together this litigation?
        11                 MR. HERNSTADT:  Let's go off the
        12           record for a second.
        13                 (Discussion off the record.)
        14      BY MR. HERNSTADT:
        15           Q.    The names of the people that you spoke
        16      to.  I'm not asking about the substance of the
        17      conversation.
        18           A.    Including the lawyers.
        19           Q.    Including the lawyers.
        20           A.    I've been involved in numerous
        21      conference calls and I will try to remember to
        22      the best of my ability the name of the lawyers
        23      who have been involved in those calls.
        24                 Let me see.  It does not include Time
        25      Warner.
 
 
                              INTERIM COURT REPORTING
                                                            215
 
         1                     Jacobsen  
         2           Q.    Right.
         3     
         4     
         5     
         6     
         7     
         8     
         9     
        10     
        11     
        12     
        13     
        14     
        15     
        16     
        17     
        18     
        19     
        20     
        21     
        22     
        23     
        24     
        25     
 
 
                              INTERIM COURT REPORTING
                                                            216
 
         1                     Jacobsen  
         2     
         3     
         4     
         5     
         6     
         7     
         8     
         9     
        10     
        11     
        12     
        13     
        14     
        15     
        16     
        17     
        18     
        19     
        20     
        21     
        22           Q.    Who from the MPAA was present?
        23           A.    It would be Simon Barsky, Greg
        24      Goeckner, Mat Litvack, myself.  I think that's
        25      normally the four that are involved.
 
 
                              INTERIM COURT REPORTING
                                                            217
 
         1                     Jacobsen  
         2      Occasionally Brad Hunt.  And it is possible that
         3     
         4      two calls.
         5           Q.    When did these calls take place?
         6           A.    Since I know, ever since the
         7      litigation commenced.
         8           Q.    These are all since the litigation
         9      commenced?
        10           A.    There were some discussions prior to
        11      the commencement of litigation.
        12           Q.    With some or all the same people you
        13      just mentioned?
        14           A.    Yes.
        15           Q.    Do you know if there is a joint
        16      defense agreement in place?
        17           A.    I do not, no.
        18      RQ         MR. HERNSTADT:  We would call for the
        19           production of such agreement if there is
        20           one.
        21                 MR. COOPER:  I will take it under
        22           advisement.
        23                 MR. HERNSTADT:  Just to clarify this
        24           point.  It is the position of the Plaintiffs
        25           in this case that if the MPAA is party to
 
 
                              INTERIM COURT REPORTING
                                                            218
 
         1                     Jacobsen  
         2           conversations, that does not destroy the
         3           privilege?
         4                 MR. COOPER:  That's correct.
         5                 MR. HERNSTADT:  Okay.
         6           Q.    Mr. Jacobsen, yesterday -- I don't
         7      want to hold you to this.  I want to ask you
         8      about this.  You said piracy was the unauthorized
         9      use of property owned by one of the MPAA
        10      members.  First of all, is that an accurate
        11      description of what you said yesterday?
        12           A.    I don't think it is.
        13                 MR. COOPER:  Neither do I.
        14           Q.    That was just my notes.  Can you give
        15      me a definition; the definition of "piracy" that
        16      you used in your role as the head of anti-piracy?
        17                 MR. COOPER:  Asked and answered.  I
        18           think really we are just now testing the
        19           witness' memory.
        20                 MR. HERNSTADT:  No.  This is what I
        21           wrote down.  Obviously I got it wrong.
        22                 MR. COOPER:  You have the transcript
        23           from yesterday.  It seems to me it is simple
        24           enough to pick it up if you really want to
        25           go back to that.
 
 
                              INTERIM COURT REPORTING
                                                            219
 
         1                     Jacobsen  
         2                 MR. HERNSTADT:  Fair enough.  I do.
         3           Off the record.
         4                 (Discussion off the record.)
         5                 THE WITNESS:  Can you read back the
         6           question?
         7                 MR. COOPER:  You know what, in order
         8           to try to save time, rather than going back
         9           to the record and trying to figure out where
        10           the witness' testimony was from yesterday on
        11           the definition of "piracy", we have agreed
        12           that the witness will give a working
        13           definition for purposes of counsel to take
        14           off for some additional questioning on any
        15           piracy efforts.
        16           A.    I believe what I said yesterday, when
        17      asked that question by Mr. Garbus, was that our
        18      program encompassed multiple areas.  And within
        19      the rubric of the term "piracy," I would include
        20      circumvention devices; I would include
        21      unauthorized public performance; I would include
        22      unauthorized retransmission; I would also include
        23      the illegal manufacture, the illegal distribution
        24      and the illegal sale of audio visual products
        25      owned by my member companies.
 
 
                              INTERIM COURT REPORTING
                                                            220
 
         1                     Jacobsen  
         2           Q.    Did you come up with that definition
         3      of "piracy"?
         4                 MR. COOPER:  He just did.  Do you mean
         5           is he the sole source of it from an
         6           intellectual standpoint?
         7           Q.    Yes.  Are you the person who devised
         8      that general definition of "piracy" for the MPAA?
         9           A.    It is my definition of "piracy" for
        10      the MPAA.  It is not written down anywhere.
        11      That's my definition.  When you asked me what I
        12      consider piracy for the MPAA, that's my
        13      definition of "piracy".
        14           Q.    Does the MPAA have their own
        15      definition of "piracy" apart from yours?
        16                 MR. COOPER:  Calls for speculation.
        17                 MR. HERNSTADT:  If he knows.  I'm not
        18           asking him to speculate.  I'm asking him to
        19           answer a question if he knows it.
        20                 MR. COOPER:  I understand.  This
        21           witness is here as the person most
        22           knowledgeable on the topics we identified.
        23           He is able to testify from that knowledge.
        24                 I think he has given you his own
        25           working definition and has told you there is
 
 
                              INTERIM COURT REPORTING
                                                            221
 
         1                     Jacobsen  
         2           not a written policy articulating the answer
         3           to your question.
         4                 MR. HERNSTADT:  He didn't.  He said
         5           this definition is not written down.  It is
         6           his definition.  What I'm asking is, Is
         7           there a preexisting, is there some written
         8           definition?
         9                 MR. COOPER:  Written down?
        10                 MR. HERNSTADT:  Written down for the
        11           MPA or the MPAA.
        12           A.    Use of the term "piracy" is not a
        13      legal term.  What we are talking about when we
        14      quote, discuss "piracy," is basically theft of
        15      our member company product or violations of
        16      statutes created by either state or federal
        17      governments or international statutes which
        18      protect the intellectual property of our members.
        19                 So, no, no one has ever sat down to my
        20      knowledge and put together, these will be the
        21      only things that will be included in piracy
        22      because it is an ever changing world.
        23           Q.    Let me step back for a second.  Is
        24      there a person or persons you deal with at the
        25      DVD CCA about piracy or proliferation of DeCSS?
 
 
                              INTERIM COURT REPORTING
                                                            222
 
         1                     Jacobsen  
         2                 MR. COOPER:  I believe that's asked
         3           and answered.
         4           A.    I don't personally.
         5           Q.    Do you work with anyone else at the
         6      MPA or MPAA to determine what you include within
         7      the rubric of piracy?
         8                 MR. COOPER:  I think that you are
         9           giving the rubric of piracy a more formal
        10           meaning that it has in fact, based on the
        11           witness' testimony.
        12                 MR. HERNSTADT:  I mean it only in the
        13           sense that the witness has testified about
        14           it, which is that it is his personal
        15           definition and he looks to various sources
        16           for that personal definition.  It is not
        17           written down.
        18                 I understand it to be an informal
        19           working definition for him.  Within that, I
        20           want to know if he talks to other people
        21           about it in order to determine what's within
        22           it.
        23                 MR. COOPER:  If you allow me to finish
        24           my comment.
        25                 He's testified about everybody who
 
 
                              INTERIM COURT REPORTING
                                                            223
 
         1                     Jacobsen  
         2           works for him and I believe virtually
         3           everybody who works with him.  Given his job
         4           responsibilities, I'm not sure what he can
         5           do beyond repeating his answers on those
         6           questions from yesterday, which is to
         7           reidentify all the people who --
         8                 MR. HERNSTADT:  I actually have not
         9           asked him to identify people yet.
        10           Q.    Let me rephrase the question.  Maybe
        11      this will make it easier.
        12                 When you developed this working
        13      definition of "piracy," did you do it by yourself
        14      or did you do it in conjunction with discussions
        15      with other people?
        16           A.    The working definition of "piracy" is
        17      meaningless in my job.
        18           Q.    Why is that?
        19           A.    Because.  What I'm hired to do is to
        20      construct strategies -- and implement them --
        21      that protect my member companies' product.
        22      "Piracy" is just the term somebody at some point
        23      in time decided to apply to the illegal theft of
        24      our product.
        25                 I don't, when I work, try to define
 
 
                              INTERIM COURT REPORTING
                                                            224
 
         1                     Jacobsen  
         2      "piracy."  What I try to do is look at what
         3      illegal actions are happening that are stealing
         4      my member companies' products, and device
         5      strategies to address them.  It is not done under
         6      a definitional term of piracy.  It is done on a
         7      situational-by-situational basis.
         8           Q.    Yesterday Mr. Garbus asked you a
         9      number of questions about what was piracy and
        10      what was not piracy.  One question I don't think
        11      we ever got an answer on is:  Is it the position
        12      of the MPAA that it is piracy to make fair use of
        13      copyrighted materials on a video cassette?
        14                 MR. COOPER:  The question was asked --
        15           A.    I answered that.
        16                 MR. COOPER:  The question was asked
        17           and answered.  To the extent that you didn't
        18           get an answer, it would have been because
        19           the formulation was such that it received
        20           from me an objection on attorney/client
        21           privilege and a variety of other grounds,
        22           including that it called for a legal
        23           conclusion and was beyond the ambit of this
        24           witness' scope of testimony.
        25                 So I really don't think it is
 
 
                              INTERIM COURT REPORTING
                                                            225
 
         1                     Jacobsen  
         2           productive to go back through that whole
         3           area.  We did spend a significant amount of
         4           time yesterday on it.
         5                 MR. HERNSTADT:  Thank you.  I
         6           disagree.  The witness in answering that
         7           question introduced a number of factors that
         8           were not part of the question.
         9           Q.    What is your understanding,
        10      Mr. Jacobsen, of "fair use," if you have one?
        11                 MR. COOPER:  I simply cut off the
        12           questioning altogether in this area because
        13           I really do believe we are going right back
        14           to where we were yesterday.
        15                 Give me some sense of why you want
        16           this witness' legal interpretation of that
        17           legal term?
        18                 MR. HERNSTADT:  I didn't ask for a
        19           legal interpretation.  I asked for his
        20           understanding, if he has one.  If he doesn't
        21           have one, he doesn't have one.
        22                 I understand he is not here as a
        23           lawyer.  He is here as the chief of
        24           anti-piracy efforts for the MPAA.
        25                 MR. COOPER:  He described what those
 
 
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         1                     Jacobsen  
         2           efforts are.
         3                 MR. HERNSTADT:  Right.
         4                 MR. COOPER:  For foundation purposes
         5           and probably a vain effort to save some
         6           time, I'm going to allow the witness to give
         7           you his layman's understanding of the term,
         8           but I will tell you we are not going to get
         9           into a lengthy legal discussion today.
        10                 MR. HERNSTADT:  I have one question on
        11           this.
        12                 MR. COOPER:  Go ahead.
        13           A.    I generally understand that within the
        14      realm of copyright, there is something called
        15      "fair use."  And even though someone may have a
        16      copyright to a particular piece of intellectual
        17      property, if the usage that is made of a portion
        18      of that property is for purposes of teaching,
        19      let's say, purposes of library maintenance, let's
        20      say, purposes of possibly scientific research,
        21      purposes of possibly fair comment in a newspaper,
        22      and it is done within the rubric of what the
        23      courts have said constitutes "fair use" of that
        24      product, you may not have a copyright violation.
        25           Q.    My question then is:  Is it the MPAA's
 
 
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         1                     Jacobsen  
         2      position that making use of copyright materials
         3      on a video cassette in the way that you have just
         4      described is piracy?
         5                 MR. COOPER:  It is an incomplete
         6           hypothetical.  You are asking a question
         7           without sufficient information to be able to
         8           answer the question given what the witness
         9           just testified to.
        10           Q.    Mr. Jacobsen, can you answer the
        11      question?
        12           A.    I can tell you "piracy" is not a legal
        13      term.  It is a meaningless term in your question
        14      to my understanding.  So I cannot answer your
        15      question.
        16           Q.    Let me rephrase that.
        17                 Is it the MPAA's position that it is
        18      not permissible for persons to make use of
        19      copyrighted material on a video cassette in the
        20      manner in which you just described?
        21           A.    It is --
        22                 MR. COOPER:  It is beyond the witness'
        23           area of testimony.  Calls for a legal
        24           conclusion.  Incomplete hypothetical.
        25           Q.    Can you answer that question?
 
 
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         1                     Jacobsen  
         2           A.    I can tell you only that the
         3      determination of "fair use" is something that has
         4      to be described or made by lawyers.  And if, in
         5      fact, fair use is applicable, then the use of the
         6      product within that limited scope of fair use is
         7      not illegal, to my understanding.
         8           Q.    You device strategies for protecting
         9      the intellectual property of the members of the
        10      MPAA; is that correct?
        11           A.    That's correct.
        12           Q.    Have you devised a strategy that seeks
        13      to prevent persons from using portions of
        14      copyrighted materials on videocassettes in the
        15      manner in which you described when you discussed
        16      fair use?
        17                 MR. COOPER:  Ambiguous.
        18           Q.    You can answer the question.
        19           A.    My understanding of your question
        20      presupposes the finding of fair use.  If there
        21      has been a finding of fair use, we do not have a
        22      strategy to take action against those people for
        23      use of the product.
        24           Q.    As chief of anti-piracy, you device
        25      strategies to protect the property of your
 
 
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         1                     Jacobsen  
         2      members, the intellectual property of your
         3      members; what formats is this intellectual
         4      property on when it goes to the public?
         5           A.    Basically, MPAA deals with audiovisual
         6      products.  Consequently, it could start with
         7      preproduction items which are either on film or
         8      on tape.  After it has been, after the theatrical
         9      showing, normally there is a release at some
        10      point in time of the product on videocassette,
        11      videocassette disk or DVD.
        12                 Now, in addition, my members own
        13      product which is shown on cable and satellite and
        14      on TV.  So we have an interest in the actual bits
        15      and bytes that are transmitted, or the analog
        16      transmission of that data as it comes from the
        17      place it is being sent from to the ultimate
        18      receiver and what happens to it after that.  So
        19      we have an interest with anything that has to do
        20      with that audiovisual product.
        21           Q.    Do you have responsibility for CDs or
        22      cassette tapes of the soundtracks of films?
        23           A.    If you are talking about the CD that
        24      is created separate from the actual movie?
        25           Q.    Yes.
 
 
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         1                     Jacobsen  
         2           A.    No.
         3           Q.    Do you know what organization is
         4      responsible for anti-piracy efforts with respect
         5      to CD soundtracks?
         6           A.    There is a trade association known as
         7      MIAA, and they are responsible for the products
         8      of their member companies.
         9           Q.    With respect to these various formats
        10      and media that you just described, what
        11      percentage of your resources are devoted to each
        12      of these different formats?
        13           A.    The majority of the resources would be
        14      devoted to the product after -- well, it is hard
        15      to make that determination.  We are normally
        16      looking at product that has been reduced from the
        17      film or transferred the film into some type of
        18      hard copy format.  But often that is before our
        19      members have actually released it.
        20                 So it is a videocassette or a VCD or
        21      perhaps a DVD that has been illegally created by
        22      some third-party without authority from our
        23      member companies.
        24           Q.    What is a VCD?
        25           A.    Videocassette disk.
 
 
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         1                     Jacobsen  
         2           Q.    What is that?
         3           A.    It is a disk-like a compact disk.  It
         4      holds, I don't know, maybe roughly 600 megs..  It
         5      is not a popular format in the United States.  It
         6      is a popular format over in Asia, and it is an
         7      inferior mpeg format to DVD.
         8           Q.    When you say "inferior," you mean the
         9      quality?
        10           A.    The quality is inferior to what DVD
        11      is.
        12           Q.    Both video and audio?
        13           A.    I don't know about the audio because
        14      I'm not an expert.  I'm not an expert on the
        15      other either, but I'm not conversant with audio
        16      compressions.
        17           Q.    What are DVDs played on?
        18           A.    On a CD.  They can also be played on a
        19      DVD player.
        20           Q.    Can they be played on a CD player on a
        21      computer?
        22           A.    Yes, they could be.
        23           Q.    With a VCD driver?  Do you need a
        24      special driver for that?
        25           A.    I don't know the answer.
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2           Q.    Typically, if you can answer this
         3      question, how are these hard copies made prior to
         4      the release of the MPAA member of the DVD or VCD
         5      or videocassette?
         6           A.    You are talking about how is the
         7      illegal product created?
         8           Q.    Yes.
         9           A.    Normally, there can be several
        10      sources.  But the criminal who is violating the
        11      law will locate a source for the audiovisual
        12      product.  It can be a camcording that was done
        13      surreptitiously in a theater.  It can be a stolen
        14      pre-released cassette.  It can be a screener
        15      which has been pre-released prior to the release
        16      in video format or DVD format.  Anyway, any kind
        17      of source like that.
        18                 Then depending upon the format that
        19      they are going to convert that into, depends upon
        20      the machinery that they need to finish the job.
        21           Q.    Roughly what percentage of stolen
        22      goods does what you just described constitute?
        23           A.    What percentage of what?
        24           Q.    Of the stolen goods you devote your
        25      time going after.  Is this the majority of what
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2      you are focused on?
         3                 MR. COOPER:  I want to make sure we
         4           are all clear.  I know where you are going
         5           with this, but I want to make sure everybody
         6           is using terms the same way.
         7                 I think the witness has been
         8           testifying about the creation of hard goods
         9           that are pirated because they are created by
        10           people who don't have the right to
        11           distribute them.
        12                 MR. HERNSTADT:  Right.
        13                 MR. COOPER:  Are you asking what
        14           percentage of the hard goods the MPAA goes
        15           after that have been created in the fashion
        16           he just described?
        17                 MR. HERNSTADT:  That's exactly what
        18           I'm asking.
        19           Q.    You just described hard goods created
        20      by persons who get a hold of the material by
        21      camcording it from the theater or stealing a
        22      pre-released tape or somehow acquiring it and
        23      then making VCD's, videocassettes or DVDs prior
        24      to the release by the MPAA member of their own
        25      VCD, DVD or videocassette.
 
 
                              INTERIM COURT REPORTING
                                                            234
 
         1                     Jacobsen  
         2                 The question is:  What percentage of
         3      the pirated goods, the hard goods that you go
         4      after, does this type of pirated goods
         5      constitute?
         6                 MR. COOPER:  You are distinguishing
         7           that from those where someone may take an
         8           existing VCD and copy it?
         9                 MR. HERNSTADT:  For example.  That was
        10           going to be my next question of him.
        11           Q.    If you want, I will do it the other
        12      way around and ask you what other type of pirated
        13      goods you spend your time looking for.
        14           A.    Other types of pirated goods would be
        15      situations where someone actually takes a
        16      legitimate cassettes and makes copies as opposed
        17      to a purloined cassette or a screener.
        18           Q.    Do you find that in all the above
        19      formats; VCD, videocassette and DVD?
        20           A.    I'm trying to remember if we have been
        21      able to determine whether any DVDs have actually
        22      been made from original released DVDs, and I
        23      don't know the answer.  Clearly VCD's are used
        24      and so are videocassettes.
        25                 I'm not sure that we can certify or
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2      conclusively state that a legitimate DVD has been
         3      used to create an unauthorized product.
         4           Q.    When you say "a legitimate DVD," you
         5      mean a DVD that was manufactured and sold --
         6           A.    That's correct.  A DVD that was
         7      manufactured by one of other members company and
         8      legitimately placed into the marketplace.
         9           Q.    How would you tell if a copy DVD was
        10      made from a legitimate DVD?
        11     
        12     
        13     
        14     
        15     
        16           Q.    In October or November of last week,
        17      did you work with Robert Schuman?
        18           A.    I did not.
        19           Q.    Do you know who at the MPAA did?
        20           A.    I think Mr. Litvack did.
        21     
        22     
        23     
        24     
        25     
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2     
         3     
         4     
         5     
         6     
         7     
         8     
         9     
        10     
        11     
        12     
        13     
        14     
        15     
        16     
        17     
        18     
        19     
        20     
        21     
        22     
        23     
        24     
        25     
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2     
         3     
         4           Q.    In terms of number, how would you
         5      break down the pre-released pirated copies that
         6      are being sold compared to the post-release?
         7           A.    It is overwhelming, in the optical
         8      disk area, which would be VCD and DVD, it is
         9      overwhelming pre-legitimate release.
        10     
        11     
        12     
        13     
        14     
        15     
        16     
        17     
        18     
        19     
        20     
        21     
        22           Q.    How would you break down the hard
        23      goods between videocassettes, VCD's and
        24      videocassettes?
        25           A.    Overwhelmingly, the numbers we seize
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2      are predominantly optical disk.  However, that
         3      varies by region.
         4           Q.    Optical disk being VCD?
         5           A.    VCD and DVD.
         6           Q.    Is there a breakdown between VCD and
         7      DVD?
         8           A.    Yes.  Overwhelmingly VCD.
         9           Q.    Do you have documents that reflect the
        10      breakdowns I have been asking you about?
        11           A.    I don't recall if we break it out.  We
        12      have documents which would reflect statistics on
        13      the numbers that are seized on an annual basis
        14      and a quarterly basis, I believe.  But I don't
        15      remember if we break out DVDs out of VCDs or
        16      not.  I just know from our operations that it is
        17      predominantly VCD.
        18      RQ         MR. HERNSTADT:  I would call for the
        19           production of the annual and quarterly
        20           breakdowns as well as any documents that may
        21           exist that show a breakdown between VCD and
        22           DVD.
        23                 By that I mean memos or other internal
        24           documents that might reflect that.  I
        25           understand from Mr. Jacobsen there is quite
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2           possibly nothing.
         3                 MR. COOPER:  Noted.  For
         4           clarification, you asked for the annual and
         5           quarterly breakdowns between those that the
         6           witness has testified to?
         7                 MR. HERNSTADT:  Right.
         8                 MR. COOPER:  To the extent they
         9           exist.  I take it you are looking for
        10           documents sufficient to show, to the extent
        11           they exist, rather than every document that
        12           might contain some reference to them?
        13                 MR. HERNSTADT:  That would be correct.
        14                 MR. COOPER:  Thank you.
        15                 MR. HERNSTADT:  In particular,
        16           Mr. Jacobsen testified he believes there are
        17           annual and quarterly breakdowns.  That I
        18           would want.
        19                 MR. COOPER:  I understood that
        20           perfectly well.
        21                 I want to make sure we are not on a
        22           hunt for everything that would make an
        23           anecdotal reference.
        24                 (Whereupon, a short recess was taken
        25           from 10:20 to 10:25 a.m.)
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2      BY MR. HERNSTADT:
         3           Q.    To the best of your knowledge, what
         4      would the total percentage of DVD pirated goods
         5      be out of all the products we have been talking
         6      about?
         7                 MR. COOPER:  Talking about --
         8                 MR. HERNSTADT:  VCD, videocassette and
         9           DVD.
        10                 MR. COOPER:  To formats in which they
        11           are sold?
        12                 MR. HERNSTADT:  Yes.  Exactly.
        13           A.    I probably have to get out a pencil
        14      and paper and work out the percentages.  But it
        15      is low.  Let me see.  I'm going to say in the
        16      neighborhood of between one and two percent.
        17           Q.    Of that one to two percent, would you
        18      say more than 75 percent is pre-released?
        19           A.    Of the one or two percent of the
        20      DVDs?
        21           Q.    Right.
        22           A.    I don't know.
        23           Q.    Are there any documents that would
        24      show that with that kind of detail?
        25           A.    Not that I'm aware of.
 
 
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         1                     Jacobsen  
         2           Q.    Is there anyone who would know?
         3           A.    Not that would have created or have
         4      that kind of statistic available.
         5           Q.    Do you work with the IIPA?
         6           A.    IIPA?  Yes.
         7           Q.    I would like to ask you to take a look
         8      at Exhibit 5, it is the declaration of Frank
         9      Stevenson.  If you can look at Paragraph 23.  In
        10      Paragraph 23 Mr. Stevenson says, "Bit-for-bit
        11      copying, which precisely duplicates the content
        12      of one DVD to another, results in a fully-
        13      playable product."
        14                 If you just take a moment to review
        15      this paragraph, I would like to know if what is
        16      set forth in this paragraph is true.
        17                 MR. COOPER:  Take time to read the
        18           entirety of the paragraph.
        19                 (Witness reviewing document.)
        20           A.    I don't know, I don't have any
        21      technical knowledge to know whether what he
        22      claims is true or not about bit-for-bit copying.
        23      And two, I don't know about the IIPA 1990 report
        24      on Hong Kong.  I've never seen it.  So I don't
        25      know whether this is accurate or not.
 
 
                              INTERIM COURT REPORTING
                                                            242
 
         1                     Jacobsen  
         2           Q.    If you look at the back of the report
         3      that attaches Exhibit B, and if you look at
         4      Page 5 of the report and the numbers in the
         5      bottom right-hand corner, there is a section on
         6      motion pictures.
         7           A.    Uh-huh.
         8           Q.    The paragraphs that I think are
         9      relevant to the videocassette questions are on
        10      the top of Page 6.  But feel free to look at that
        11      whole section if you want.  The first part is VCD
        12      and then they go to DVD.
        13                 MR. COOPER:  After he has reviewed the
        14           section, what would be the question?
        15                 MR. HERNSTADT:  The question would be
        16           is he familiar with this material.
        17                 MR. COOPER:  Document you mean?
        18                 MR. HERNSTADT:  Either the report; if
        19           he's not familiar with the report, which
        20           sounds likely that he is not, whether he is
        21           familiar with the contents of the material
        22           through some other source.
        23                 MR. COOPER:  Let's take it a step at a
        24           time.
        25                 Take a look at the entire report so
 
 
                              INTERIM COURT REPORTING
                                                            243
 
         1                     Jacobsen  
         2           that you can answer the first question,
         3           which is:  Have you ever seen this report
         4           before?
         5           A.    I can tell you from what I've looked
         6      at that the answer is no.
         7                 MR. COOPER:  Focusing on the last
         8           paragraph of Page 5 leading on to the top of
         9           Page 6 --
        10                 MR. HERNSTADT:  It is actually the
        11           first full paragraph on Page 6.
        12                 MR. COOPER:  Okay.  You want him to
        13           tell you whether he is familiar from some
        14           other source with the material set forth in
        15           that paragraph?
        16                 MR. HERNSTADT:  That's correct.
        17                 (Witness reviewing document.)
        18           A.    I have never seen this data anywhere
        19      else.
        20           Q.    And no one has ever told you?
        21           A.    That's correct.
        22           Q.    Do you receive the IIPA reports on
        23      enforcement of intellectual property rights
        24      throughout the world?
        25                 MR. COOPER:  Objection to form.
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2           A.    I presume that I will.  In the job
         3      that I held prior to April, I would not have
         4      received these.  And if I had, I might not have
         5      read them.
         6 
         7 
         8           A.    I assume that he did.  I don't know
         9      for a fact, but I assume that he did.
        10 
        11 
        12 
        13 
        14 
        15 
        16 
        17 
        18 
        19 
        20 
        21 
        22 
        23 
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                              INTERIM COURT REPORTING
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                              INTERIM COURT REPORTING
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                              INTERIM COURT REPORTING
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                              INTERIM COURT REPORTING
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                              INTERIM COURT REPORTING
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         1                     Jacobsen  
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                              INTERIM COURT REPORTING
                                                            250
 
         1                     Jacobsen  
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                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2 
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        21 
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        23 
        24           Q.    Do you know what the relationship
        25      between the MPA and the MPAA is?
 
 
                              INTERIM COURT REPORTING
                                                            252
 
         1                     Jacobsen  
         2           A.    Yes.  The MPAA is the U.S. chartered
         3      trade association; the MPA is the international
         4      arm of the MPAA.
         5           Q.    Up until April 1st, were you an
         6      employee of the MPAA?
         7           A.    Well, I've never quite been able to
         8      figure that out to be perfectly candid.  But yes,
         9      I guess I was an employee of the MPAA.
        10           Q.    Did your paycheck change at all?
        11           A.    I never even looked.  My business
        12      cards changed.  The paycheck comes from the same
        13      company.  I honestly don't understand who I'm
        14      employed by.  I think it is MPAA, but I'm not
        15      sure.
        16           Q.    Well, I ask because your card says
        17      MPA.
        18           A.    Right.  It used to say MPAA.
        19           Q.    There is an overlap but there is
        20      different people.
        21                 I note that on the current MPA
        22      website, as opposed to the MPAA website, you're
        23      still not listed.
        24                 MR. HERNSTADT:  Off the record.
        25                 (Discussion off the record.)
 
 
                              INTERIM COURT REPORTING
                                                            253
 
         1                     Jacobsen  
         2      BY MR. HERNSTADT:
         3           Q.    Yesterday we talked about the cease
         4      and desist letters that went out and we asked
         5      that all the letters be produced.  To clarify one
         6      thing, a box was delivered yesterday afternoon
         7      that contained a number of responses.
         8                 MR. COOPER:  Okay.  I appreciate that
         9           clarification.
        10                 MR. HERNSTADT:  That was the
        11           confusion.  We had not gotten it as of the
        12           time of the deposition or the discussion
        13           yesterday, but it did arrive yesterday
        14           afternoon.
        15           Q.    Is there a master list of every letter
        16      that went out and of every response that came in?
        17           A.    You're asking me in regards only to
        18      DeCSS from the very first one we sent out to the
        19      last one?
        20           Q.    Yes.
        21           A.    I don't know if a master list of all
        22      of them exists.
        23           Q.    How much of your time have you spent
        24      on the cease and desist letters?
        25                 MR. COOPER:  On the letters as opposed
 
 
                              INTERIM COURT REPORTING
                                                            254
 
         1                     Jacobsen  
         2           to other matters related to DeCSS?
         3           Q.    The cease and desist letters as
         4      opposed to other MPAA matters.
         5           A.    Very little.
         6    
         7    
         8    
         9           A.    My guess would be very little, because
        10      we set up a protocol which basically funneled the
        11      information through counsel to make the
        12      determination.
        13           Q.    You said Mr. Litvack wrote the
        14      letters, but was he in charge of that entire
        15      protocol?
        16           A.    Yes.
        17           Q.    Do you know if he spent personally a
        18      lot of time on the cease and desist letters?
        19           A.    I don't know.
        20    
        21    
        22    
        23    
        24    
        25    
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2    
         3    
         4    
         5    
         6    
         7    
         8    
         9    
        10    
        11  
        12  
        13  
        14  
        15  
        16  
        17  
        18  
        19  
        20  
        21  
        22  
        23  
        24  
        25  
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2  
         3  
         4  
         5  
         6  
         7  
         8  
         9  
        10           Sargoy Stein firm by the MPAA.
        11                 MR. HERNSTADT:  I guess this part of
        12           the transcript should be confidential.
        13                 MR. COOPER:  Actually all of the
        14           transcript starting yesterday is
        15           confidential.  I suppose we should have
        16           noted that at the beginning.
        17                 You can pick up the commentary with
        18           respect to that determination from the
        19           beginning of yesterday's transcript.
        20                 MR. HERNSTADT:  You are now
        21           designating the entire transcript
        22           confidential?
        23                 MR. COOPER:  That's what we did
        24           yesterday.
        25                 MR. HERNSTADT:  No.  You designated
 
 
                              INTERIM COURT REPORTING
                                                            257
 
         1                     Jacobsen  
         2           certain portions.
         3                 MR. COOPER:  No.  We designated all of
         4           it, unless otherwise designated.
         5                 MR. HERNSTADT:  I will take a look at
         6           it.  I didn't understand that to be the
         7           case.
         8                 MR. COOPER:  Lest there be any doubt,
         9           let me make it clear on the record that we
        10           have designated all of the transcript
        11           confidential subject to requests by the
        12           Defendants for de-designation of any
        13           portions they believe do not deserve
        14           confidential treatment.
        15                 There is one section I believe
        16           yesterday that we also designated highly
        17           confidential pursuant to the Protective
        18           Order.  But the record should reflect what
        19           portion that was.
        20                 MR. HERNSTADT:  The Defendants object
        21           to that designation, and on the record
        22           request that the entire transcript be
        23           de-designated, or that the Defendants do
        24           what the Protective Order contemplates which
        25           is use the period of time after receiving
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2           the transcript to designate those sections
         3           that should be confidential.
         4                 It is a gross over-designation to
         5           start by designating the entire transcript
         6           by confidential.
         7                 MR. COOPER:  You and I disagree.
         8                 MR. HERNSTADT:  It is inappropriate
         9           and it is not what is called for in the
        10           Protective Order, which says you are
        11           supposed to designate portions at the time
        12           or you have a period of time after receiving
        13           a transcript to designate those portions.
        14           It does not say you designate the entire
        15           thing and then it is our burden to tell you
        16           which portions should be undesignated.
        17                 Since you are putting that burden on
        18           us, I, on the record, state that the
        19           Defendants believe that no part of this
        20           transcript is confidential and that,
        21           therefore, we request that we shift the
        22           burden back to you to designate those
        23           portions of the transcript which you think
        24           are confidential.
        25                 MR. COOPER:  As I said, we disagree.
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2           I put our position on the record yesterday.
         3           If it requires amplification, we will do it
         4           in due course.
         5           Q.    Documents M 130 to M 392 are a number
         6      of cease and desist letters.
         7                 MR. COOPER:  Can I have those numbers
         8           again?
         9                 MR. HERNSTADT:  130 to 392.
        10                 MR. COOPER:  Thank you.
        11   
        12   
        13   
        14   
        15   
        16   
        17           Q.    I would like to show you, I will give
        18      you a handful, let's say 321 to 392.  I note that
        19      these letters are unsigned.  My question to you
        20      is:  Do you know if they were sent?
        21           A.    Do I know for a fact that they were
        22      sent?
        23           Q.    Yes.
        24           A.    No.
        25                 MR. HERNSTADT:  Off the record.
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2                 (Whereupon, a recess was taken from
         3           10:45 a.m. to 10:49 a.m.)
         4      RQ         MR. HERNSTADT:  On the record, the
         5           Defendants have requested that the
         6           Plaintiffs review their records and in some
         7           manner or form present us with an answer as
         8           to whether the letters, the cease and desist
         9           letters at documents 130 through 392 were,
        10           in fact, sent out.
        11                 MR. COOPER:  I understand the request
        12           and appreciate the Defendant's willingness
        13           to try to avoid unnecessary discovery.
        14                 I'm not sure what information we will
        15           be able to provide from the MPAA records on
        16           this topic.  But we will investigate it and
        17           endeavor to reach some kind of mutually
        18           acceptable understanding with respect to
        19           this issue.
        20   
        21   
        22   
        23   
        24   
        25           Q.    Or if such a list exists, whether it
 
 
                              INTERIM COURT REPORTING
                                                            261
 
         1                     Jacobsen  
         2      would also set forth the responses?
         3           A.    I don't know if such a list exists.
         4      RQ         MR. HERNSTADT:  As part of the
         5           confirmation that the letters were sent, we
         6           would also request production of any kind of
         7           a master list that would set forth the
         8           letters that were sent, whether they were
         9           sent, whether there was response.
        10                 I would assume that any production
        11           includes those responses, but I will ask for
        12           them just in case.
        13                 MR. COOPER:  So noted.
        14                 MR. HERNSTADT:  Thank you.
        15           Q.    Mr. Jacobsen, have you ever heard of a
        16      format called DivX?
        17           A.    I think we discussed it yesterday
        18      briefly.  I'm aware of two things which are
        19      called DivX and format.  You are interested in
        20      the software?
        21           Q.    I'm talking about the recent DivX.
        22           A.    Yes, I am generally aware that there
        23      is a software called DivX which is available on
        24      the Internet.
        25           Q.    Are you aware of what it does?
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2           A.    Again, with the caveat I'm not a
         3      technical person.  My general understanding is
         4      that it can be used to compress a DVD that has
         5      been downloaded to a hard drive, so it can then
         6      be played in a more playable format and copied in
         7      a manner which does not create or does not need
         8      multiple disks or multiple CDs.
         9           Q.    For purposes of that last question and
        10      the future question, the question I'm about to
        11      ask you, I'm not asking you as a technical
        12      person.  I'm asking you with respect to anti-
        13      piracy.
        14                 MR. HERNSTADT:  I want to make that
        15           clear because I understand he is being
        16           produced as an anti-piracy witness not a
        17           technical witness.
        18           Q.    Do you know if the DVD movie that is
        19      being compressed by DivX has to be decrypted?
        20           A.    My understanding is that it does have
        21      to be decrypted.
        22           Q.    Do you know what the compression ratio
        23      is?
        24           A.    I don't.
        25           Q.    Approximate?
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2           A.    I am informed that it is an mpeg four
         3      compression, but I don't know what that is.
         4           Q.    I think you were asked this
         5      yesterday.  Have you ever viewed a movie that has
         6      been compressed with DivX?
         7           A.    I believe I have seen one exhibition,
         8      very short, of a DivX compressed movie.
         9           Q.    Did it have the same quality as a DVD
        10      movie?
        11           A.    No.
        12           Q.    Would a movie that is compressed with
        13      DivX be sold on a VCD?
        14           A.    It could be.
        15           Q.    Are you aware of any VCDs having been
        16      made using the DivX compression?
        17           A.    I have no information about any
        18      specific instances where VCDs have been created
        19      using the DivX compression technology.
        20           Q.    We looked at yesterday at Defendant's
        21      Exhibit 12, this article in Fast Forward.
        22                 MR. HERNSTADT:  I would like to mark
        23           as Exhibit 15 an article that appears in
        24           MSBC Home, the CNBC and the Wall Street
        25           Journal entitled "Movie Pirates Hitting
 
 
                              INTERIM COURT REPORTING
                                                            264
 
         1                     Jacobsen  
         2           Prime Time."
         3                 (Defendant's Exhibit 15, MSBC website
         4           article "Movie Pirates Hitting Prime Time,"
         5           marked for identification, as of this date.)
         6                 MR. COOPER:  What is the first
         7           question on this one?
         8           Q.    The first question is:  Have you ever
         9      seen this article?
        10                 MR. COOPER:  Take your time.
        11                 (Witness reviewing document.)
        12           A.    I have seen this article.
        13           Q.    In fact, you are quoted in this
        14      article; is that correct?
        15           A.    Yes.  Misquoted.
        16                 MR. HERNSTADT:  Off the record.
        17                 (Discussion off the record.)
        18      BY MR. HERNSTADT:
        19           Q.    You say you are misquoted; what is the
        20      misquote?
        21           A.    He said that most of the money is
        22      spent on analog videotape copies, and I never
        23      said that.  That was a conclusion he drew from
        24      the interview.
        25           Q.    That's part of the interview where it
 
 
                              INTERIM COURT REPORTING
                                                            265
 
         1                     Jacobsen  
         2      quotes you as saying, or paraphrases you as
         3      saying, "Traditional forms of piracy cost the
         4      industry $2.5 billion.  Most of that is spent on
         5      analog videotape copies where film quality
         6      obviously suffers."
         7                 My first question is:  Is it true that
         8      traditional forms of piracy cost the industry
         9      $2.5 billion?
        10           A.    It is true that all forms of piracy we
        11      estimate cost the industry 2.5 billion.
        12      "Traditional," again, is not what I said.
        13           Q.    Is there such a thing as traditional
        14      forms of piracy?  What is the distinction being
        15      made there?
        16           A.    I would not have made that
        17      distinction, that's why I know I didn't say it.
        18           Q.    When you say cost the industry
        19      $2.5 billion, what do you mean?
        20           A.    That is the estimate in lost revenues
        21      that we make from unauthorized sales of our
        22      audiovisual product.
        23           Q.    Who makes that estimate?
        24           A.    It is made, I would have to say, by
        25      Mr. Valenti based on information that he
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2      receives.
         3           Q.    Do you have any role in determining
         4      the estimated amount of lost sales based on
         5      piracy?
         6           A.    I have not in the past had a role in
         7      making the determination.
         8           Q.    And in the future will you?
         9           A.    I would hope that I would, yes.
        10           Q.    What role do you hope to have in
        11      making that determination?
        12           A.    The role of providing the statistical
        13      information necessary to draw whatever
        14      conclusions are going to be drawn.
        15           Q.    What statistical information will you
        16      provide?
        17           A.    I will provide our estimate of the
        18      number of illegal copies that have been sold or
        19      exchanged or bartered.
        20                 I will provide information about
        21      whether or not they were being sold in countries
        22      where they were pre-theatrical or whether the
        23      movies were still in theatrical release.
        24                 Provide information extrapolating the
        25      seizures we have made and trying to estimate the
 
 
                              INTERIM COURT REPORTING
                                                            267
 
         1                     Jacobsen  
         2      amount of goods that we do not find, or that the
         3      police do not find, and try to come up with a
         4      number of how much illegal copies are actually
         5      being disseminated, sold, traded, bartered,
         6      whatever.
         7           Q.    How is that information relevant to
         8      the estimated loss?
         9           A.    It is relevant to the estimated loss
        10      if you make the argument that the purchase or
        11      transfer of an illegal copy may affect theater
        12      ticket sales or may affect ultimate rental
        13      revenue or may affect ultimate sale of the actual
        14      item itself.
        15           Q.    Do you know the relationship between
        16      the number of copies and the impact on theater
        17      sales, theater ticket sales or sales of
        18      authorized hard copies of member movies?
        19                 MR. COOPER:  Objection to form.
        20           A.    I'm not sure I understand the
        21      question, but if I do, I think I already told you
        22      I have not been involved in this process in the
        23      past.  So if I understand your question, the
        24      answer is no.
        25           Q.    Do you know who would I ask about that
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2      at the MPA or the MPAA?
         3                 MR. COOPER:  You are talking about the
         4           relative interaction between various
         5           statistics in coming up with the
         6           $2.5 billion number?
         7                 MR. HERNSTADT:  Basically how that
         8           number is arrived at.  What weight is given.
         9                 I understand from what Mr. Jacobsen
        10           has said, there is estimated total number of
        11           copies that are out there.  There are
        12           estimates that are extrapolated on the
        13           number of copies that are actually seized.
        14           There are estimates of how this impacts
        15           theater sales, how this impacts sales of
        16           hard copies.  What I --
        17           Q.    Please correct me.
        18                 MR. COOPER:  That's fine.  Can you
        19           answer the question generally speaking?
        20           A.    Actually, that is not what I said.  I
        21      said if I were involved in the process in the
        22      future, that's what I would expect to do.
        23                 MR. COOPER:  That's fair.
        24           Q.    Do you know who is doing that today?
        25           A.    I don't.
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2           Q.    You said Mr. Valenti?
         3           A.    Mr. Valenti is usually the person who
         4      talks about the loss numbers, so I'm assuming.
         5                 MR. COOPER:  Don't assume.
         6           A.    I don't assume.
         7                 MR. COOPER:  Testify to knowledge.  He
         8           is not asking for assumptions.  He is
         9           specifically not.
        10           Q.    Let me ask you, the prior quote, "Do I
        11      feel there is a huge river damming up?  Yes.
        12      Yes, we see it coming.  We are doing everything
        13      we can to deal with it."  Is that an accurate
        14      quote?
        15           A.    No.  I never talked about a river
        16      damming up.
        17           Q.    What did you actually say?
        18           A.    We had a wide-ranging interview about
        19      the Internet and whether or not it created
        20      current problems for us, and whether or not we
        21      suspected it would create future problems for us.
        22           Q.    Can you tell me what you said about
        23      both of those areas?
        24           A.    Yes.  I can tell you that we discussed
        25      generally how our member company product is
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2      illegally sold or transferred on the Internet.  I
         3      can tell you that we generally talked about the
         4      four areas of the Internet which concern us,
         5      which would be: circumvention devices which are
         6      transferred via the Internet; hard good sales via
         7      the Internet; downloadable media on the Internet;
         8      and it would be streaming using the Internet.
         9                 And although I don't remember how
        10      specific we were in this particular interview,
        11      I'm sure we discussed what the problem looked
        12      like today and whether we expected that it would
        13      increase in the future.
        14           Q.    With respect to circumvention devices
        15      currently available on the Internet, what are
        16      they?
        17           A.    DeCSS in terms of a software utility.
        18      We find on the Internet -- you are talking about
        19      not what I would have discussed in terms of this
        20      article, but what I'm --
        21           Q.    Now I'm asking you more broadly.
        22           A.    Thank you.  We look for unauthorized
        23      Smart Cards which are sold via the Internet which
        24      are used to illegally capture satellite
        25      transmission.  And we look for what are called
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2      black boxes, which are basically a device that is
         3      sold to defeat encryption or protection measures
         4      on cable TV to steal signals.
         5           Q.    Are there other utilities on the
         6      Internet that you look for besides DeCSS?
         7           A.    We would look for other utilities
         8      located that in effect defeats the technological
         9      measure that our industry has put on its
        10      product.
        11                 I am not aware of the fact that we are
        12      addressing anything right now besides DeCSS in
        13      regards to a software utility.
        14           Q.    Are you aware of the existence of any
        15      others?
        16           A.    No.
        17           Q.    For example, DODsripper or
        18      PowerRipper.
        19           A.    I heard the term "ripper" before, but
        20      I myself do not know whether these are
        21      circumvention devices, whether they defeat the
        22      encryption placed on DVDs or any other kind of
        23      technological measure.
        24           Q.    For purposes of your job as
        25      anti-piracy chief, do you know how CSS works?
 
 
                              INTERIM COURT REPORTING
                                                            272
 
         1                     Jacobsen  
         2           A.    CSS?
         3           Q.    Yes.
         4           A.    Generally.
         5           Q.    What is your general understanding of
         6      what CSS does?
         7           A.    My general understanding is that there
         8      is an encryption placed in the bit stream that is
         9      on the disk.  My general understanding is that
        10      there is a series of keys that has been licensed
        11      to people who make DVD players.
        12                 And that the system requires a key
        13      exchange when the disk is placed into the player
        14      so that it recognizes the disk and it recognizes
        15      the player; they match.  And then there is an
        16      authorized -- I mean, the signal is played.  It
        17      is authorized to be played.
        18           Q.    Did you mention a disk locking
        19      component?
        20           A.    I did not.
        21           Q.    Do you understand there is a disk
        22      locking component to CSS?
        23                 MR. COOPER:  Ambiguous.  I don't know
        24           what that means.
        25           A.    I don't know what it means either.
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2           Q.    Are you aware of a security provision
         3      protecting DVDs that involve disk locking?
         4           A.    I don't know what disk locking is.
         5           Q.    Turning back to Exhibit 15.  You are
         6      familiar with this article?
         7           A.    I have read the article, yes,
         8      previously.
         9           Q.    This article nowhere mentions DeCSS;
        10      is that correct?
        11                 MR. COOPER:  The article speaks for
        12           itself.  If you want us to take a look
        13           through it and give you a specific response,
        14           I suppose we can go through the exercise.
        15           If you are looking at the same one I am.
        16                 MR. HERNSTADT:  Yes.
        17                 MR. COOPER:  I object to the question
        18           on the grounds that it is misleading.  I
        19           have now turned to the first page of the
        20           article.
        21           A.    It does mention DeCSS.
        22           Q.    Where is that?
        23                 MR. COOPER:  Bottom of the first
        24           page.
        25           A.    First page.
 
 
                              INTERIM COURT REPORTING
                                                            274
 
         1                     Jacobsen  
         2                 MR. COOPER:  The one that has the
         3           "Play For Free Fantasy Baseball" banner on
         4           the top of it.
         5           Q.    My question is really that it does not
         6      mention DeCSS as part of the DivX conversion
         7      process.
         8                 MR. COOPER:  The document speaks for
         9           itself.
        10           Q.    As counsel says, the document speaks
        11      for itself.
        12                 MR. HERNSTADT:  I would like to mark
        13           this as Defendant's Exhibit 16.
        14                 (Defendant's Exhibit 16, ZD Net News
        15           website article "Inside the Online Movie
        16           Underground," marked for identification, as
        17           of this date.)
        18           Q.    First question is:  Have you ever seen
        19      this article before?
        20           A.    Which one are we looking at?
        21           Q.    Defendant's Exhibit 16, which I will
        22      define as an article entitled "Inside the Online
        23      Movie Underground" that comes from ZD Net News.
        24      The subtitle of that is "Technology News Now."
        25           A.    I don't recall seeing this one
 
 
                              INTERIM COURT REPORTING
                                                            275
 
         1                     Jacobsen  
         2      previously.
         3   
         4   
         5           Q.    Are you familiar with the Microsoft
         6      ASF format?
         7           A.    I understand there is a Microsoft ASF
         8      format, but I know nothing else about it.
         9           Q.    Without getting into the technical
        10      merits, is that format a concern of your
        11      organization in terms of piracy?
        12           A.    I don't know what it does.
        13                 MR. HERNSTADT:  I would like to mark
        14           as Defendant's Exhibit 17 an article
        15           entitled "Piracy Intrigue in Palika Bazaar:
        16           Hollywood Goes Toe-To-Toe With India's Video
        17           Counterfeiters."
        18                 This is an article on the on-line
        19           version of MSBC and it is dated May 11th.
        20                 (Defendant's Exhibit 17, MSNBC website
        21           article "Piracy Intrigue in Palika Bazaar:
        22           Hollywood Goes Toe-To-Toe With India's Video
        23           Counterfeiters," marked for identification,
        24           as of this date.)
        25                 (Witness reviewing document.)
 
 
                              INTERIM COURT REPORTING
                                                            276
 
         1                     Jacobsen  
         2           Q.    My first question is:  Have you seen
         3      this article before?
         4           A.    I don't recall seeing it before.
         5 
         6 
         7 
         8 
         9 
        10 
        11 
        12 
        13 
        14 
        15 
        16 
        17 
        18 
        19 
        20 
        21 
        22 
        23 
        24 
        25 
 
 
                              INTERIM COURT REPORTING
                                                            277
 
         1                     Jacobsen  
         2 
         3 
         4 
         5 
         6 
         7 
         8 
         9 
        10 
        11 
        12 
        13 
        14 
        15 
        16 
        17 
        18 
        19 
        20 
        21 
        22 
        23           Q.    I want to clear up something from
        24      yesterday.  Yesterday you mentioned a technology
        25      called wireless.  I believe you said you didn't
 
 
                              INTERIM COURT REPORTING
                                                            278
 
         1                     Jacobsen  
         2      know if DVD could be sent from one place to
         3      another by wireless transmission.
         4                 Do you know who at the MPAA would know
         5      the answer to that question?
         6           A.    If I said that, I may not have been
         7      thinking broad enough, because I probably have to
         8      say that it can be given the -- well, let me
         9      take that back.  If I use the term "wireless" to
        10      include satellite transmission.
        11           Q.    Is that how you were using it
        12      yesterday?  It seems to me you were using it as a
        13      new technology that was coming to the front.
        14           A.    You know what, let me stick with my --
        15      I don't know how wireless actually works, so I
        16      probably don't know the answer.
        17  
        18  
        19  
        20  
        21  
        22  
        23  
        24  
        25  
 
 
                              INTERIM COURT REPORTING
                                                            279
 
         1                     Jacobsen  
         2           Q.    Do you know if the MPAA has
         3      investigated whether it is possible to use
         4      wireless transmissions to send DVD movies?
         5           A.    I don't know.
         6 
         7 
         8 
         9 
        10 
        11 
        12 
        13 
        14 
        15 
        16 
        17 
        18 
        19 
        20 
        21 
        22 
        23 
        24 
        25 
 
 
                              INTERIM COURT REPORTING
                                                            280
 
         1                     Jacobsen  
         2 
         3 
         4 
         5 
         6 
         7 
         8 
         9 
        10 
        11 
        12 
        13 
        14 
        15 
        16 
        17 
        18 
        19 
        20 
        21 
        22 
        23      illegal to resell DVDs?
        24     
        25     
 
 
                              INTERIM COURT REPORTING
                                                            281
 
         1                     Jacobsen  
         2 
         3 
         4 
         5 
         6 
         7 
         8 
         9 
        10 
        11 
        12 
        13 
        14 
        15 
        16 
        17 
        18 
        19 
        20 
        21 
        22 
        23           Q.    Do DVDs state on them the countries in
        24      which they are licensed to be sold?
        25           A.    I don't know the answer.
 
 
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         2           Q.    Do you know what region coding is?
         3           A.    Generally.
         4           Q.    Can you describe it, please, what your
         5      understanding is?
         6           A.    My understanding is the world has been
         7      divided into -- I don't recall if it is five or
         8      six regions.  Six.
         9           Q.    Seven?
        10           A.    Seven regions, which -- I'm sorry.
        11      Divided into seven regions.  When the DVDs are
        12      manufactured, they are manufactured for play in
        13      one or more of those seven regions.  They are
        14      then authorized for sale only in those regions.
        15      And that's basically my understanding of regional
        16      coding.
        17           Q.    Your testimony a few minutes ago about
        18      the resale may be unauthorized if a disk is
        19      released for sale in one country but it is then
        20      acquired and resold in a different country, is
        21      that related to the region coding that we just
        22      discussed?
        23           A.    Sometimes.
        24           Q.    Is it sometimes related to the scope
        25      of the license owned by your client or by the
 
 
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         1                     Jacobsen  
         2      MPAA member to distribute movies?
         3                 MR. COOPER:  I think it is confusing
         4           as asked.  He included in his description of
         5           the region coding, the licenses.  So I don't
         6           know how you can separate them out in asking
         7           that question.
         8                 In addition to which, sometimes the
         9           member companies are licensors and sometimes
        10           licensees, so I think it is a very complex
        11           question.
        12                 MR. HERNSTADT:  It is.  Let me start
        13           over again.
        14           Q.    In region coding you said the DVDs are
        15      manufactured for play in one of the seven
        16      regions?
        17           A.    I think I said in one or more.
        18           Q.    One or more of the seven regions.
        19                 Do you know whether the decision of
        20      what region the DVD is manufactured for play in
        21      is a function of any legal restriction on the
        22      DVDs being played in regions other than the one
        23      that it is manufactured to be played in?
        24                 MR. COOPER:  Objection as to form.
        25           A.    I'm not sure I understand the
 
 
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         1                     Jacobsen  
         2      question.
         3           Q.    I will restate the question.  I will
         4      ask a more general question.
         5                 Do you know why DVDs are manufactured
         6      for play in a limited number of regions?
         7           A.    Generally, my understanding is to
         8      protect release windows.
         9           Q.    Can you expand on that answer?  What
        10      is release windows?
        11           A.    Well, the way the member companies
        12      release their movies, they do not release
        13      worldwide at the same time.
        14                 As an example, you may have a movie
        15      that is released in the United States.  That
        16      movie has a theatrical run.  That movie may then
        17      be released into cable, Pay-Per-View.  That movie
        18      may then be converted into a videocassette and/or
        19      a DVD.  And all of that may be done prior to it
        20      being played in another part of the world.
        21                 To protect the theatrical market, my
        22      understanding is DVDs were regionalized so that
        23      they would not be available in that part of the
        24      world prior to the theatrical release.
        25                 That's just my general understanding.
 
 
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         1                     Jacobsen  
         2      That is not in conversations with anybody that
         3      has made those decisions.
         4           Q.    Do you know who has made those
         5      decisions?
         6           A.    I don't.
         7           Q.    Are DVDs and videocassettes released
         8      at the same time?
         9           A.    Sometimes.
        10           Q.    Is there any regional restriction on
        11      videocassettes?
        12           A.    Yes.
        13           Q.    What is that?
        14           A.    The format that it's played in.
        15      Basically if my memory serves me correctly, there
        16      is three formats; you have PAL, you have VHS, and
        17      you have SEACAM, which is Asia Pacific as I
        18      recall.  PAL is Europe generally.  And VHS is
        19      generally the America.
        20           Q.    Is that NTSC?
        21           A.    I'm sorry.  You're right, not VHS, it
        22      is NTSC.
        23   
        24   
        25   
 
 
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         1                     Jacobsen  
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         1                     Jacobsen  
         2   
         3   
         4   
         5                 MR. COOPER:  Okay.  We will talk about
         6           it separate from the transcript for
         7           Mr. Jacobsen's deposition.
         8                 MR. HERNSTADT:  That's fine.  If it
         9           turns out that there is just not that much
        10           stuff, that sort of answers a lot of the
        11           questions.  We can work it out.
        12  
        13  
        14  
        15  
        16  
        17  
        18  
        19  
        20  
        21  
        22  
        23  
        24  
        25  
 
 
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         1                     Jacobsen  
         2  
         3  
         4  
         5  
         6  
         7  
         8  
         9  
        10  
        11           Q.    Isn't that a web site?
        12           A.    It is not my definition of a website.
        13      Maybe my definition of a website might be
        14      different than yours or mine may be
        15      inappropriate.  I am not technically inclined.
        16           Q.    Neither am I.  Why don't you give me
        17      your definition of a website?
        18           A.    When I think of a website, I think of
        19      a site that people go to.
        20                 This could be just a direct
        21      conversation between you and I on the Internet.
        22      There may be no web page.  It could just be the
        23      fact I access your computer or server.
        24           Q.    What different ways of uploading and
        25      downloading media have you found to be in
 
 
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         1                     Jacobsen  
         2      existence?
         3           A.    I'm not sure I understand the
         4      question.
         5           Q.    We identified a couple of different
         6      ways, either through web pages or direct
         7      conversations.  Has the MPAA found both of those
         8      to be in existence?
         9           A.    Actually, I guess we have.  We have
        10      found web pages that are devoted to the transfer
        11      of our media.
        12           Q.    How many web pages have you found?
        13           A.    I don't know.
        14           Q.    Would it be more than 50?
        15           A.    I don't know.  They are less likely to
        16      be available because they draw extraordinary
        17      attention to themselves than a website or a web
        18      page.
        19      
        20      
        21      
        22      
        23      
        24      
        25      
 
 
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         1                     Jacobsen  
         2  
         3  
         4  
         5  
         6  
         7  
         8  
         9           Q.    What is the compression technique that
        10      is used?  Or if there is more than one, what
        11      compression techniques are used?
        12                 MR. COOPER:  You are talking about
        13           formatting the video product for streaming
        14           purposes?
        15                 MR. HERNSTADT:  No, not for streaming
        16           purposes.  For uploading and downloading
        17           purposes.  Mr. Jacobsen said there is where
        18           the audiovisual product is compressed and
        19           then uploaded on to the net and then someone
        20           at some point downloads it and uses it or
        21           copies it or does whatever.
        22           A.    I don't understand the technology
        23      behind the compression which creates the original
        24      file, so I don't know how to answer your
        25      question.
 
 
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         1                     Jacobsen  
         2           Q.    I guess what I'm asking for is the
         3      name of the compression.  Like DivX, I take it
         4      that would be one of them.  DivX compression
         5      would be one?
         6           A.    DivX could be one of them, yes.
         7           Q.    Do you know any other?
         8           A.    It started, as I recall, with VIVO,
         9      which is probably no longer used.  You asked me
        10      earlier about ASF.  I believe ASF is a
        11      compression technology created by Microsoft that
        12      might be used.  I'm sure there are others.  I
        13      just can't remember what they are and I don't
        14      recall how they work.
        15           Q.    In this category or this area of
        16      Internet problems for the MPAA members, I take it
        17      that the copyrighted material is being
        18      transmitted via modem or T1 line or T3 line?
        19           A.    It would be across the Internet.
        20           Q.    By whatever --
        21           A.    Exactly.
        22           Q.    -- access they are using?
        23           A.    (Witness nodding.)
        24           Q.    The last one is streaming.  What is
        25      the problem with streaming?
 
 
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         1                     Jacobsen  
         2           A.    Streaming is a, it can be several
         3      things.  But basically what it is is a technology
         4      where you broadcast a media, which in our case
         5      would be either TV programs or cable programs or
         6      a movie.  It is actually broadcast out.  And the
         7      receivers actually have the ability to just watch
         8      it.  It is like TV.
         9           Q.    Are entire movies streamed or is it
        10      portions of movies that are streamed?
        11           A.    I don't know that we have -- I think
        12      the answer is entire movies can be.  But the
        13      source in that instance is -- yes, they can be.
        14      Let me just say it can be.
        15           Q.    Have you ever found that to be the
        16      case?  Have you ever found an entire movie to be
        17      streamed?
        18           A.    I can't think of the specific, but I
        19      believe that we have.
        20           Q.    How much resources does the MPAA
        21      devote to policing the Internet and seeking to
        22      prevent these four categories of problems you've
        23      identified?
        24           A.    An ever increasing amount of
        25      resources.  This is a problem which has just
 
 
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         1                     Jacobsen  
         2      begun to develop for us over the last couple of
         3      years.  So it is a new problem.  And as the
         4      Internet expands and as the technology increases,
         5      as the compression gets better, as the bandwidth
         6      gets better, as the ability to stream gets
         7      better, this becomes a larger and larger problem
         8      for us.
         9           Q.    You anticipate that it will become a
        10      larger and larger problem?
        11           A.    Absolutely.
        12           Q.    Is the MPAA working on security
        13      systems to prevent this from becoming a larger
        14      and larger problem?
        15           A.    The MPAA itself does not develop
        16      security systems.
        17           Q.    Do you know who does?
        18           A.    Any technological company out there
        19      that wants to work on a security system.  I don't
        20      think there is an answer to that question.  It
        21      can be anybody anywhere.
        22           Q.    Do you know if MPAA members are
        23      developing security systems?
        24           A.    Developing it themselves?
        25           Q.    Yes.
 
 
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         1                     Jacobsen  
         2           A.    I don't know the answer.
         3           Q.    Do you know if they are working with
         4      third-parties to develop security systems?
         5                 MR. COOPER:  You know, I think the
         6           witness knows what he means by security
         7           systems.  It is not clear to me that you are
         8           both using it the same way.  For the clarity
         9           of the record we should get some kind of
        10           definition.
        11                 MR. HERNSTADT:  Sure.
        12           Q.    How are you using "security systems"?
        13           A.    I'm using a security system to mean
        14      some form of technology which will protect our
        15      product from being illegally copied, illegally
        16      screened, illegally downloaded.
        17                 MR. HERNSTADT:  That is essentially
        18           the definition I was using.
        19                 MR. COOPER:  I just wanted to make
        20           sure.  I'm not sure that the average reader
        21           would know what either of you meant even if
        22           it was the same thing.
        23                 MR. HERNSTADT:  That's fine.  What was
        24           the last question?
        25                 (Record read.)
 
 
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         1                     Jacobsen  
         2                 MR. LITVACK:  Off the record.
         3                 (Whereupon, a recess was taken from
         4           11:42 a.m. to 11:49 a.m.)
         5                 MR. COOPER:  Can you read back the
         6           last question and answer?
         7                 (Record read.)
         8                 MR. COOPER:  The area of current
         9           development of future security systems is
        10           one of particular concern to the member
        11           companies.  I want to make sure that in
        12           allowing the witness to answer foundation
        13           questions regarding his general knowledge in
        14           the area, we don't waive objections of any
        15           type with respect to propriety of inquiry
        16           into this general subject matter.
        17                 With that understanding, I will let
        18           him answer additional foundational questions
        19           you have to determine whether the witness
        20           has information on this subject.
        21                 MR. HERNSTADT:  That's understood.
        22           That's fine.
        23           A.    I think yesterday we talked about the
        24      Copyright Protection Group, the working group.
        25      Although I have not been involved in that group,
 
 
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         1                     Jacobsen  
         2      my understanding is it is a group which meets to
         3      talk about the development and implementation of
         4      security measures.
         5                 Since I know that the member companies
         6      are involved in that group, I assume that the
         7      answer to your question is yes, they are working
         8      with third-parties to develop technology.
         9           Q.    Apart from the CPWG, working group, do
        10      you know of any other third-party that the MPAA
        11      member companies are working with on security?
        12           A.    Not specifically, no.
        13           Q.    You discussed yesterday a meeting some
        14      time in mid to late October and December at which
        15      the DVD CCA, the MPAA and the MIAA were present?
        16           A.    That's not an accurate depiction.  I
        17      don't recall I said the DVD CCA was there.
        18           Q.    Weil Gotshal was.
        19           A.    That's different.  To be clear, I did
        20      not say the DVD CCA was present.
        21           Q.    That is correct.  I made that
        22      assumption based on the fact that Weil Gotshal
        23      represents the DVD CCA.  What you said is there
        24      was a lawyer or lawyers from Weil Gotshal and
        25      yourself and others from the MPAA and
 
 
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         1                     Jacobsen  
         2      representatives, I think you said five, that was
         3      your best recollection of representatives from
         4      MIAA.  My question now is:  What was said at that
         5      meeting?
         6                 MR. HERNSTADT:  You were going to --
         7                 MR. COOPER:  Yes, I do assert the
         8           attorney/client privilege.  My understanding
         9           is the subject of that meeting would be
        10           covered by that privilege, and that anything
        11           the witness remembers from those
        12           conversations, therefore, would be subject
        13           to the privilege.
        14                 MR. HERNSTADT:  What is the basis of
        15           the privilege if there were lawyers for a
        16           third-party present, the Weil Gotshal
        17           lawyers?  Weil Gotshal is not representing,
        18           as far as I know, as far as you told us, do
        19           not represent either the MPAA or the
        20           Plaintiffs in this matter.
        21                 In fact, we know they represent the
        22           DVD CCA.  So how is there a privilege when
        23           there is a third-party present.
        24                 MR. COOPER:  My understanding is that
        25           the privilege would apply here because of a
 
 
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         1                     Jacobsen  
         2           joint interest.  This falls within the joint
         3           prosecutorial interest portion of the
         4           privilege.
         5                 MR. HERNSTADT:  At that time.
         6           Q.    My understanding, let me clarify:  Did
         7      this meeting take place prior to December 24th?
         8                 MR. COOPER:  The witness testified he
         9           does not know the answer to that question.
        10           I think the prior question was asked in
        11           reference to the filing of the California
        12           Superior Court action filed by the DVD CCA.
        13                 MR. HERNSTADT:  Exactly.
        14                 MR. COOPER:  The witness has testified
        15           twice that he does not recall whether or not
        16           it was.
        17                 MR. HERNSTADT:  He recalls it was some
        18           time between October and December.
        19           Q.    Does that fairly state what your
        20      recollection is?
        21           A.    Yes.
        22                 MR. HERNSTADT:  It is my understanding
        23           that no action had yet been filed.  And
        24           really depending on when this meeting took
        25           place, it could have been shortly after
 
 
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         1                     Jacobsen  
         2           DeCSS was released or up to a month and a
         3           half after the DeCSS was released.
         4                 Was there a joint defense agreement in
         5           place or are you asserting a sort of
         6           common-law joint defense interest?
         7                 MR. COOPER:  It is not defense, just
         8           to be clear.
         9                 MR. HERNSTADT:  Joint prosecutorial.
        10                 MR. COOPER:  I don't know all of the
        11           facts and circumstances surrounding the
        12           meaning.  But let me say that I believe it
        13           was in the interest of the protection of the
        14           parties' joint legal right that the meeting
        15           took place and that the discussions
        16           occurred.  In that respect, it is covered by
        17           the attorney/client privilege.
        18                 MR. HERNSTADT:  Are you going to
        19           direct Mr. Jacobsen not to answer?
        20      DR         MR. COOPER:  I am.
        21                 MR. HERNSTADT:  We object to that
        22           direction.
        23                 MR. COOPER:  Both sides reserve their
        24           rights
        25             (Luncheon recess taken at 12:00 p.m.)
 
 
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         1                     Jacobsen  
         2             A F T E R N O O N     S E S S I O N
         3                   (Time noted: 1:00 p.m.)
         4      K E N N E T H   A.   J A C O B S E N,  resumed as
         5           a witness and testified as follows:
         6      CONTINUED EXAMINATION BY
         7      MR. HERNSTADT:
         8   
         9   
        10   
        11   
        12   
        13   
        14   
        15   
        16   
        17   
        18   
        19   
        20   
        21           Q.    Do you have any estimate -- when I say
        22      "you," I mean the MPAA -- some kind of official
        23      estimate that is in place today of what that will
        24      look like in a year?
        25           A.    No.
 
 
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         1                     Jacobsen  
         2           Q.    Do you personally have any kind of an
         3      estimate of where that's going any year?
         4           A.    I would think there will be an
         5      increase.  I do not yet have an idea of how large
         6      that increase will be.
         7           Q.    With respect to the four areas, taking
         8      them in reverse order, has DeCSS been implemented
         9      in any way in streaming of movies on-line?
        10           A.    Not to my knowledge.
        11           Q.    Has DeCSS been implemented in any way
        12      in downloadable media?
        13           A.    I think I testified yesterday there
        14      have been people who have indicated that they
        15      used the utility to decrypt DVDs.  I can't recall
        16      whether any of those people are also offering
        17      downloadable media.  I can't give you a definite
        18      yes or no answer.
        19           Q.    Does this include like Reimerdes, the
        20      former Defendant in this action?  When you say
        21      "people."
        22                 MR. COOPER:  Asked and answered.
        23                 MR. HERNSTADT:  I just want to make
        24           clear we are talking about the same thing.
        25           A.    Yes.
 
 
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         1                     Jacobsen  
         2           Q.    On Reimerdes, let me show you very
         3      quickly a Complaint.  This is a download of the
         4      Complaint.
         5                 MR. COOPER:  This is a download from
         6           the FES site from the original Complaint in
         7           this action?
         8                 MR. HERNSTADT:  Yes.  I can go find
         9           the original Complaint if that's not
        10           acceptable.
        11                 MR. COOPER:  I accept your
        12           representation that this is in substance the
        13           original Complaint.
        14           Q.    The reason I'm bringing this to your
        15      attention is I want to clarify, what it said on
        16      Mr. Reimerdes' website, and the distinction
        17      between claiming that he had, in fact, used DeCSS
        18      to copy and distribute movies or whether you
        19      "can" use DeCSS to do so.  The claim that you
        20      can as opposed to the statement that it has been
        21      done.
        22                 Looking at Paragraph 23 of the
        23      Complaint, my question is:  Does that refresh
        24      your recollection as to the substance of the
        25      claim on the Reimerdes website?
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2                 (Witness reviewing document.)
         3                 MR. COOPER:  You are asking whether
         4           this refreshes his recollection?  There is
         5           no suggestion this is the entirety of his
         6           statement on his website?
         7                 MR. HERNSTADT:  No.  The suggestion is
         8           this is a quote from the website that was
         9           included in the Complaint.  I take it that
        10           Mr. Jacobsen has at some point, probably in
        11           the fairly distant past, reviewed the
        12           website.
        13           Q.    My question is simply:  Does this
        14      refresh your recollection?
        15           A.    I have never reviewed the website
        16      myself.  What I referred to yesterday was the
        17      fact that I had seen the Complaint where this
        18      allegation was set forth.
        19           Q.    Then the question is really:  Does it
        20      refresh your recollection as to what is in the
        21      Complaint in terms of the content of the
        22      substance of the claim on the Reimerdes website?
        23           A.    Yes.
        24           Q.    In fact, the claim is that DeCSS gives
        25      you the ability to decrypt and copy DVD movies?
 
 
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         1                     Jacobsen  
         2           A.    It does more than that.  It indicates
         3      it gives you the ability to decrypt DVD movies
         4      and transfer them across the Internet.  And then
         5      talks about the number of people apparently he
         6      has found out there in chat rooms who are, in
         7      fact, trading DVD movies back and forth.
         8                 So my conclusion is he was referring
         9      to people he thinks are using the DeCSS utility
        10      to do precisely that.
        11           Q.    But there is no claim it has actually
        12      been done?
        13                 MR. COOPER:  Now you are really
        14           seeking to compare your conclusion from the
        15           witness'.  I'm not sure that's a fair area
        16           for inquiry.
        17                 MR. HERNSTADT:  Okay.
        18  
        19  
        20  
        21  
        22  
        23  
        24  
        25  
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2  
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        22  
        23           Q.    Neither you nor the MPAA has any
        24      knowledge of anyone actually doing that, except
        25      for that newspaper article to which you refer?
 
 
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         2                 MR. COOPER:  The witness has testified
         3           now on numerous times as to the information
         4           that has led the MPAA to draw the conclusion
         5           that people are doing it.
         6                 In continuing to ask for him to state
         7           it differently than he has --
         8                 MR. HERNSTADT:  I'm not asking him to
         9           state it any differently.
        10                 MR. COOPER:  Then I think the record
        11           is clear the basis on which he and the MPAA
        12           have drawn the conclusion they have drawn.
        13                 MR. HERNSTADT:  Can you go back to the
        14           answer before?
        15                 (Record read: "A. I think what I
        16           testified to is, I have no conclusive
        17           knowledge -- and I don't know of anybody
        18           else in the MPAA that does -- that, in
        19           fact, copies are actually being made using
        20           the DeCSS utility.  However, as far as I
        21           know, there is one purpose and one purpose
        22           only for the DeCSS utility and that is to
        23           decrypt DVDs.  If people are trafficking the
        24           DeCSS utility on the volumes we have seen,
        25           it leads me to the conclusion that, in fact,
 
 
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         1                     Jacobsen  
         2           the utility is being utilized.")
         3           Q.    Mr. Jacobsen, what are the roles you
         4      have seen?
         5           A.    I think I testified yesterday we have
         6      located -- this, of course, would go back to the
         7      last information that I have, since we update it
         8      on a weekly basis, but somewhere between 600 and
         9      1,000 different websites which offer the DeCSS
        10      utility either for -- I mean, either posted or
        11      linked.
        12           Q.    Again, you have no knowledge -- "you"
        13      being you or MPAA -- how many, if any, people
        14      have actually downloaded DeCSS?
        15                 MR. COOPER:  Again, that is a
        16           conclusion which seeks to interpret the
        17           witness' answer.  I don't know what you mean
        18           when you distinguish between those sites in
        19           which it is currently present and how many
        20           they know have downloaded it.
        21                 Is that a distinction between up and
        22           downloading it?
        23           Q.    Do you know of any person having
        24      downloaded DeCSS?
        25                 MR. COOPER:  Same objection.
 
 
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         1                     Jacobsen  
         2           Q.    You can answer.
         3           A.    I know people have claimed to do so.
         4      I don't have any firsthand conclusive knowledge
         5      that anyone on the web has downloaded.
         6                 MR. COOPER:  To be clear, you are
         7           making a distinction between uploading and
         8           downloading?
         9                 MR. HERNSTADT:  I'm making a
        10           distinction between it being posted and
        11           people downloading from the post.
        12                 MR. COOPER:  From the post?
        13                 MR. HERNSTADT:  Yes.  Downloading.
        14           The reason I keep coming back to this is, to
        15           make the record clear, Mr. Jacobsen is very
        16           carefully distinguishing between conclusive
        17           and inconclusive knowledge.
        18                 Really all I'm trying to get at, Is
        19           there actual knowledge.  Instead of saying
        20           there is no actual knowledge, Mr. Jacobsen
        21           is saying there is no conclusive
        22           information.  That is an interpretive
        23           answer.
        24                 The reason I keep asking the question
        25           is because I really want just a yes or no.
 
 
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         2                 MR. COOPER:  Here is my problem.
         3           Mr. Jacobsen has testified at length over a
         4           day and a half of all of the evidence that
         5           exists that he is aware of to support the
         6           conclusion that the MPAA has drawn.
         7                 You want him now to say that evidence
         8           does not constitute knowledge.  That is
         9           looking for a legal conclusion.
        10                 MR. HERNSTADT:  I want him to say
        11           whether he has actual knowledge.
        12                 MR. COOPER:  Everything he has
        13           testified to is his actual knowledge.
        14                 MR. HERNSTADT:  What he has testified
        15           to is claims by people he does not know and
        16           has not sought out on the Internet that they
        17           have used a facility in a certain way, and
        18           newspaper articles that refer to this.  Then
        19           he has drawn a conclusion.
        20                 I'm not asking him to say that is not
        21           a fair conclusion.  That is a conclusion he
        22           has drawn and it is not for me, or you or
        23           him to determine whether that's a fair
        24           conclusion.
        25                 I'm trying to get the difference
 
 
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         1                     Jacobsen  
         2           between the evidence he has explained to us
         3           is the basis of his inference and actual
         4           knowledge.  That is a real distinction.
         5           That's all I'm trying to get on the record.
         6                 MR. COOPER:  I think that he has made
         7           it clear that he has testified to the best
         8           of his recollection of knowledge that exists
         9           on this issue.  I don't know that asking it
        10           again is something that you are entitled
        11           to.
        12                 I just don't like the characterization
        13           that you are seeking to get him to adopt,
        14           which is that what he does now and has
        15           testified to doesn't constitute a form of
        16           actual knowledge.
        17                 MR. HERNSTADT:  I understand your
        18           point.  But he has distinguished between
        19           conclusive and inconclusive.  I am following
        20           up on the distinction he himself has made.
        21           Maybe that's the question I should ask.
        22           Q.    Is the distinction you make between
        23      conclusive and inconclusive knowledge the
        24      distinction between inference based on evidence
        25      and actual personal knowledge of a fact?
 
 
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         2                 MR. COOPER:  Objection to the use of
         3           the word "inference" as it is used in a
         4           legal term.  You can answer.
         5                 MR. HERNSTADT:  Let me change the word
         6           "inference" to "deduction."
         7           Q.    A deduction based on evidence and
         8      actual personal knowledge of a fact?
         9           A.    I view my answer as the difference
        10      between a deduction based upon evidence of which
        11      I am aware, and my personal attendance or
        12      eyewitness at the actual act of somebody doing
        13      that.
        14           Q.    The personal attendance of an actual
        15      act could include, for example, finding a person
        16      and asking that person, did you actually do
        17      this?  Did you do what you claim?
        18                 MR. COOPER:  We can quibble whether
        19           that is a correct conclusion.
        20                 MR. HERNSTADT:  I'm asking.
        21           Q.    Would you consider that to be --
        22                 MR. COOPER:  Would you include that?
        23           Q.    Would you include that?
        24           A.    No.  Unless they show me the actual
        25      evidence of what they had done.
 
 
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         1                     Jacobsen  
         2           Q.    So, for example, Mr. Reimerdes said,
         3      Mr. Jacobsen, I claim in my website that I did
         4      this and in fact I did this, I admit to you and I
         5      swear to you that I did this, that would not
         6      constitute actual personal knowledge?
         7           A.    To me that is inference which can be
         8      used to draw a conclusion.  When I actually see
         9      it done and sit there and watch it, I would say
        10      that is absolutely conclusive evidence to me that
        11      it was done.
        12           Q.    Thank you.  Has DeCSS been implicated
        13      in any way in the sale of hard goods on websites
        14      as you described before?
        15                 MR. COOPER:  Asked and answered, I
        16           believe.
        17           Q.    You can answer.
        18           A.    I don't know of any websites.  I'm not
        19      aware of any websites which have claimed they
        20      have used DeCSS to hack a DVD and, thereby,
        21      create the product they're selling.
        22                 MR. HERNSTADT:  Off the record.
        23                 (Discussion off the record.)
        24      BY MR. HERNSTADT:
        25           Q.    Is DeCSS implicated in the
 
 
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         1                     Jacobsen  
         2      availability of circumvention devices on the
         3      Internet?  Obviously, yes?
         4                 MR. COOPER:  Object to the form.
         5           A.    I'm sorry.  Are we on the record or
         6      off the record?
         7                 MR. COOPER:  On the record.
         8           Q.    I just want to narrow down the four
         9      areas and whether DeCSS is implicated or not.  I
        10      take it DeCSS is obviously implicated?
        11           A.    I consider DeCSS to be a circumvention
        12      device, the way I use that term, and within the
        13      meaning of the Digital Millennium Copyright Act.
        14                 MR. HERNSTADT:  Off the record.
        15                 (Discussion off the record.)
        16      BY MR. HERNSTADT:
        17           Q.    Mr. Jacobsen, can you take a look at
        18      Defendant's Exhibit 10?
        19                 MR. COOPER:  Do you want him to review
        20           it?
        21                 MR. HERNSTADT:  I just want him to
        22           look at Paragraph 6.
        23                 (Witness reviewing document.)
        24           Q.    My question is:  Do you know that it
        25      is, in fact, the MPAA's position that a license
 
 
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         1                     Jacobsen  
         2      is required in order for the public to make fair
         3      use of materials on a DVD?  That's a yes or no
         4      question.  Do you know?
         5           A.    No, I don't.
         6           Q.    Is this a question that you have ever
         7      addressed with anyone at the MPAA?
         8                 MR. COOPER:  Well, let me distinguish
         9           any discussions you may have had with
        10           non-lawyers from those you've had with
        11           lawyers in connection with this matter.
        12                 MR. HERNSTADT:  Let's do non-lawyers.
        13           Q.    Let's do non-lawyers first.
        14           A.    The issue has not arisen.
        15                 MR. HERNSTADT:  I think I'm entitled
        16           to ask if he has had a discussion of fair
        17           use with an attorney but not the content of
        18           that discussion or the substance of that
        19           discussion.
        20                 MR. COOPER:  We disagree on how one
        21           can inquire about the subject matters of
        22           discussion with counsel.
        23                 MR. HERNSTADT:  I would certainly
        24           agree that for him to answer that question
        25           would not constitute a waiver.  If the
 
 
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         1                     Jacobsen  
         2           answer is yes, then the privilege would
         3           apply.
         4                 MR. COOPER:  Let's imagine, for
         5           instance, that he and I have had a
         6           discussion on fair use as it might relate to
         7           his deposition since the issue came up
         8           yesterday.
         9                 How is it appropriate for you to ask
        10           whether we've had such discussions and to
        11           identify the various lawyers with whom he
        12           engaged in such discussions?  It just does
        13           not seem to me an appropriate line of
        14           question.
        15                 MR. HERNSTADT:  If it is a position
        16           that MPAA is taking -- and Greg Goeckner is
        17           apparently deputy general counsel, and he
        18           apparently stated this publicly, that's what
        19           the affidavit says.  I'm not asking anybody
        20           here to verify that's, in fact, what he
        21           said -- then I think it is, in fact,
        22           appropriate for me to inquire as to that.
        23                 MR. COOPER:  I don't know what to say
        24           here.  The witness has testified he does not
        25           know whether it is the MPAA's position.  You
 
 
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         1                     Jacobsen  
         2           got that on the record.
         3                 Now you're asking whether he's had
         4           discussions on fair use generally as it
         5           relates to DVDs with lawyers?
         6                 MR. HERNSTADT:  No.  On the question
         7           of fair use with DVDs with anyone.  He said
         8           not with anyone who is not a lawyer, and
         9           then the question is with lawyers.
        10                 MR. COOPER:  How is that not intruding
        11           the privilege?
        12           Q.    Let me be specific.  Have you had a
        13      conversation with Mr. Goeckner about this?
        14                 MR. COOPER:  About the statement?
        15                 MR. HERNSTADT:  No.  The subject
        16           matter fair use and DVDs.
        17                 (Counsel and the witness exiting the
        18           room.)
        19                 (Discussion off the record.)
        20                 MR. HERNSTADT:  Mr. Cooper and I have
        21           agreed that Mr. Jacobsen answering the
        22           question of whether he's had a conversation
        23           with Mr. Goeckner about fair use and DVDs
        24           does not constitute a waiver of any
        25           privilege that Mr. Cooper may be able to
 
 
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         1                     Jacobsen  
         2           assert with respect to such conversations.
         3                 MR. COOPER:  And with that
         4           understanding, I'll allow the witness to
         5           answer the question in a yes or no fashion.
         6           A.    No.
         7           Q.    Based on your testimony yesterday and
         8      today thus far, is it fair to say that the MPAA
         9      cannot attribute a lost sale of a DVD to DeCSS?
        10                 MR. COOPER:  Will you read it back,
        11           please?
        12                 (Record read.)
        13                 MR. COOPER:  Objection as to the form
        14           of the question.
        15           Q.    You can answer.
        16                 MR. COOPER:  It calls for the witness
        17           to draw a conclusion from his own
        18           testimony.  It is also been asked and
        19           answered.
        20           A.    I cannot conclusively establish that
        21      DeCSS has been used in one instance to hack a DVD
        22      and thereafter create an illegal copy.
        23                 I would surmise, however, from the
        24      information that I know about DeCSS which is its
        25      use and one and only use, as far as I know, its
 
 
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         1                     Jacobsen  
         2      availability on the Internet, and what I know
         3      generally about people who are involved in
         4      transferring DVDs back and forth that, in fact,
         5      DVDs have been hacked; that, in fact, DVDs have
         6      probably been transferred.
         7                 Whether or not that would result in a
         8      lost sale, I cannot conclusively establish.  I
         9      would surmise somewhere along the line there
        10      would be a lost sale, yes.  Yes, that there would
        11      be a lost sale.
        12           Q.    You say "would be," do you mean some
        13      time in the future?
        14           A.    Or some time in the past.  That that
        15      chain of events has -- either has led to a lost
        16      sale or will in the future lead to a lost sale.
        17           Q.    Let's separate that into past and
        18      future.  Looking at the past, has the MPAA ever
        19      taken a position, either publicly or within the
        20      offices, that a dollar figure can be attributed
        21      to lost sales because of DeCSS?
        22           A.    I'm not aware of any such
        23      attribution.
        24           Q.    Would anyone other than you make such
        25      an attribution?
 
 
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         1                     Jacobsen  
         2                 MR. COOPER:  Calls for speculation.
         3           A.    I'm not aware of anybody else having
         4      made such an attribution.
         5           Q.    With respect to lost sales in the
         6      future, lost sales that haven't come, has any
         7      dollar figure been attributed to lost sales that
         8      will occur because of DeCSS?
         9           A.    No, not that I'm aware of.
        10           Q.    The pirated DVDs that the MPAA has
        11      seized, do they contain CSS?
        12           A.    I don't know the answer to that.
        13           Q.    Have you personally played any of
        14      these pirated DVDs?
        15           A.    I have not.
        16           Q.    Do you know anyone in the MPAA who has
        17      played these DVDs?
        18           A.    Yes.
        19 
        20 
        21 
        22 
        23 
        24 
        25 
 
 
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         2 
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        12 
        13                 MR. HERNSTADT:  Off the record.
        14                 (Discussion off the record.)
        15                 MR. COOPER:  Let it be clear for the
        16           record that my silence is not
        17           acquiescence --
        18                 MR. HERNSTADT:  Understood.
        19                 MR. COOPER:  -- that the Defendants
        20           are entitled to have the witness back to
        21           talk about that or anything else.
        22      BY MR. HERNSTADT:
        23    
        24    
        25    
 
 
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         1                     Jacobsen  
         2  
         3  
         4  
         5  
         6  
         7  
         8  
         9  
        10  
        11  
        12  
        13  
        14  
        15  
        16  
        17  
        18  
        19  
        20  
        21  
        22  
        23           Q.    Are videocassettes ever the source of
        24      the material that ends up on a optical disk?
        25                 MR. COOPER:  Will you read back the
 
 
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         1                     Jacobsen  
         2           question, please?
         3                 (Record read.)
         4                 MR. HERNSTADT:  To his knowledge.
         5                 MR. COOPER:  We have a continuing
         6           understanding that this witness' testimony
         7           on technical matters is limited to his
         8           general nontechnical knowledge in his
         9           capacity as worldwide anti-pyracy.
        10                 MR. HERNSTADT:  My assumption is
        11           always with respect to the source that he
        12           has been informed of it and he has not made
        13           any personal assessment or investigation.
        14                 MR. COOPER:  Nor that we are offering
        15           him for his technical expertise, if any.
        16                 MR. HERNSTADT:  Absolutely.  You made
        17           that clear and I accept that.
        18           A.    Yes.
        19           Q.    Is that a common source?
        20           A.    Again, because of the numbers I quoted
        21      you to make a determination about common source
        22      versus uncommon source, it is impossible to
        23      make.  It does happen.
        24           Q.    Does it happen more often than DVDs
        25      being the source?
 
 
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         1                     Jacobsen  
         2           A.    I would say yes.
         3           Q.    Does it happen more often than
         4      camcorder recordings of live sources being the
         5      source?
         6           A.    Again, within the constrictions I put
         7      on it was a very small sampling of a huge amount
         8      of things seized, my estimate would be camcording
         9      would be a larger problem than the videocassette
        10      as the source.
        11                 MR. COOPER:  For clarity, I wouldn't
        12           want to suggest that the witness adopt the
        13           use "in live performance" in that last
        14           question.  I think it has a different
        15           meaning in the entertainment industry than
        16           the one you referred to.
        17           Q.    I meant only by that someone standing
        18      in the movie theater and somebody making a
        19      recording.  I understand that's what you mean by
        20      someone making a camcording?
        21           A.    Yes.
        22           Q.    Based on the samples you have seen of
        23      the approximately 15 million samples seized, in
        24      the order of more problem to lesser problem, it
        25      could be camcording, videocassettes and DVDs?
 
 
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         1                     Jacobsen  
         2           A.    That's correct.
         3           Q.    In descending order.
         4                 MR. HERNSTADT:  Let's mark this.  This
         5           is the Second Amended Complaint in this
         6           case.
         7                 (Defendant's Exhibit 18, Second
         8           Amended Complaint, marked for
         9           identification, as of this date.)
        10           Q.    Turning to Defendant's Exhibit 18
        11      which is the Second Amended Complaint.  I know
        12      you said you reviewed the Complaint.  I don't
        13      know if you had an opportunity to review the
        14      Second Amended Complaint.
        15                 I'm going to ask you about
        16      Paragraph 19 and 20.  You should feel free to
        17      look at as much of the Complaint as you want.
        18                 (Witness reviewing document.)
        19           Q.    I'm going to limit my question because
        20      I understand you are not a technical expert.
        21                 To your knowledge, DeCSS has been
        22      available on the Internet for approximately six
        23      months; is that correct?
        24           A.    That's correct.
        25           Q.    What you said in your lay
 
 
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         1                     Jacobsen  
         2      understanding of DeCSS, is that it permits the
         3      user of DeCSS to decrypt the DVD and have it in
         4      essentially a plain text form; is that correct?
         5           A.    Yes.  Yes.
         6           Q.    Let me just ask.  Has your experience
         7      as the worldwide head of anti-pyracy for the
         8      MPAA, that there has been ready and unlimited
         9      copying of DVDs as a result of DeCSS's
        10      availability for the last six months?
        11                 MR. COOPER:  Is that different from
        12           all the questions you asked him up to now
        13           about the knowledge of actual copying?  If
        14           so, I don't understand the question.
        15                 MR. HERNSTADT:  It is different in a
        16           quantitative sense.  I can rephrase it if
        17           you want.
        18           Q.    Has there been unlimited copying of
        19      DVDs using DeCSS over the last six months?
        20                 MR. COOPER:  Ambiguous.  The witness
        21           has, I think, plainly testified to his
        22           knowledge on the subject of use of DeCSS.
        23                 Since you made reference to the
        24           Complaint, are you now asking him about a
        25           particular use of the word in the
 
 
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         1                     Jacobsen  
         2           Complaint?
         3                 MR. HERNSTADT:  Yes.
         4                 MR. COOPER:  In which case I will tell
         5           you that is not the purpose for which he is
         6           here; i.e., to interpret words used in a
         7           Complaint.  A Complaint that he has not
         8           drafted.
         9                 MR. HERNSTADT:  I'm not asking him to
        10           interpret words that are used in the
        11           Complaint.  I'm asking him if DeCSS has led
        12           to unlimited copying of DVDs.  That's a
        13           quantitative difference.
        14                 MR. COOPER:  I don't understand the
        15           words you used.
        16                 MR. HERNSTADT:  If Mr. Jacobsen
        17           understands the question, please answer it.
        18                 MR. COOPER:  My objection stands.
        19           A.    To restate what I said before, I have
        20      no conclusive knowledge that DeCSS has been used
        21      to copy or to decrypt -- I'm sorry or decrypt the
        22      DVD.  However, based upon the purpose and only
        23      purpose that I know of for DeCSS, and the fact
        24      that it continues to be readily available on the
        25      net for downloading and use by people, I can only
 
 
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         1                     Jacobsen  
         2      assume that, yes, copying is going on.
         3                 Now, what do you mean by "unlimited"?
         4      I have no idea.
         5           Q.    Let me say then:  How about vast
         6      amounts?
         7           A.    I would guess there is a large amount
         8      of copying going on, decrypting going on using
         9      DeCSS and creating decrypted DVDs on computers.
        10           Q.    And this guess is based on what you
        11      said before?
        12           A.    That's correct.
        13           Q.    Have you read the affidavit of John
        14      Gillmore, his declaration?
        15                 MR. COOPER:  Asked and answered.
        16           A.    I don't remember who John Gillmore
        17      is.  I didn't read it before I came here.  So
        18      unless it was shown to me here during the
        19      deposition, I have not read it.
        20           Q.    This is a yes or no question.  Do you
        21      know if DeCSS can defeat region coding on DVD
        22      players?
        23           A.    Do I know if it defeats regional
        24      coding on a DVD player?  I do not know.
        25           Q.    Or whether it can be used to avoid
 
 
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         1                     Jacobsen  
         2      regional coding on DVD players?
         3           A.    I do not know.
         4           Q.    Let us assume that it can.
         5                 MR. COOPER:  Keep going.  If DeCSS.
         6           Q.    If DeCSS can be used to avoid regional
         7      coding such that someone living in England could
         8      play a recently released DVD purchased over the
         9      Internet in the United States and mailed to them
        10      in England, would that be another use of DeCSS
        11      other than decrypting and copying?
        12                 MR. COOPER:  Will you read it back,
        13           please?
        14                 (Record read.)
        15                 MR. COOPER:  I think that is outside
        16           of this witness' expertise, knowledge and
        17           area of designation for testimony.
        18                 I think it is also a hypothetical
        19           question.  It is incomplete.
        20           Q.    Can you answer?
        21           A.    If I understand the question, you are
        22      asking me, if we establish the fact in your
        23      question that it defeats regional coding, is that
        24      a use that could be made of?
        25           Q.    Right.
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2           A.    The answer is clearly yes.
         3                 MR. HERNSTADT:  Off the record.
         4                 (Discussion off the record.)
         5      BY MR. HERNSTADT:
         6           Q.    Are you aware whether DeCSS can be
         7      used to play DVDs on a computer that does not
         8      have a DeCSS equipped DVD player?
         9           A.    I don't know.
        10           Q.    Are you aware whether DeCSS can be
        11      used to decrypt a portion of a DVD so that a
        12      ten-second segment of the movie can be clipped
        13      and used, for example, as a screensaver or used
        14      for a presentation on the history of movies?
        15           A.    No.
        16           Q.    Do you know if DeCSS can be used to
        17      clip and burn an audio CD of some songs that
        18      might appear on the soundtrack of a movie for use
        19      in the person who has purchased the DVD's
        20      automobile?
        21                 MR. COOPER:  Objection to the form of
        22           the question.
        23           Q.    I will direct your attention to the
        24      first half of the question which is:  Do you know
        25      if DeCSS can be used to extract an audio portion
 
 
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         1                     Jacobsen  
         2      of the soundtrack of a movie so as to make a CD
         3      or a tape of a song that appears in a movie?
         4                 MR. COOPER:  Ambiguous.
         5           A.    Assuming in your question it can be
         6      used for that and only that.  Because clearly if
         7      it decrypted the whole DVD and it was in an
         8      nonencrypted form, you can take whatever you
         9      wanted from a DVD.  I understand that.  You are
        10      saying without decrypting the entire DVD, it can
        11      be used solely and only for that?
        12           Q.    No.  My question is can it be used to
        13      do that.  If your answer is that it can be used
        14      to do that but only if you decrypt the entire
        15      movie, then that should be your answer.
        16                 MR. COOPER:  Look, the witness
        17           answered it.  What he said is --
        18                 MR. HERNSTADT:  He said he doesn't
        19           know.
        20                 MR. COOPER:  No.  What he said is you
        21           are asking a logical conclusion.  If you use
        22           DeCSS to decrypt a movie, can you then use
        23           the digital information that you've
        24           decrypted in a variety of ways?  Plainly.
        25           That's the beauty of digital technology.
 
 
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         1                     Jacobsen  
         2                 So the answer is plainly, once you've
         3           decrypted it, you can do things with it.
         4           Q.    I guess my follow-up we would be:
         5      According to the MPAA, is any use of decrypted
         6      information unauthorized?  When I say "decrypted
         7      information," I mean decrypted information taken
         8      from a DVD.
         9                 MR. COOPER:  He has testified he is
        10           not aware of a policy that gets to that
        11           level of factual detail.
        12                 MR. HERNSTADT:  This is a different
        13           question.  So let me ask the witness.
        14                 MR. COOPER:  Let me hear the question
        15           back, please?
        16                 (Record read.)
        17                 MR. COOPER:  Yesterday we struck upon
        18           a compromise he can testify to policies he
        19           is aware of rather than the product of
        20           discussions between him and attorneys.  Can
        21           you import that agreement into your
        22           question?
        23                 MR. HERNSTADT:  I think it depends on
        24           his answer.  Let him tell you if he's got a
        25           privilege problem.
 
 
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         1                     Jacobsen  
         2                 MR. COOPER:  No.  I have to tell him
         3           if he's got a privilege problem.  That's my
         4           job.
         5                 What we did with Mr. Garbus yesterday
         6           at great length is to distinguish between
         7           policies he was aware of, which I think is a
         8           more appropriate area of questioning, than
         9           the subject matters which he has discussed
        10           with counsel for the MPAA.
        11                 MR. HERNSTADT: That's fine.  Let's
        12           make that distinction.
        13           A.    I lost the question again with all the
        14      discussion.  Please repeat it.
        15                 (Record read.)
        16           A.    I cannot answer the question without
        17      specific factual situations.  I don't think a
        18      broad statement of that type can be made one way
        19      or the other.
        20           Q.    Let me ask it the other way around.
        21      Is it the MPAA's position that some use of
        22      decrypted material taken from a DVD would be
        23      permissible?
        24                 MR. COOPER:  Same objection.
        25           A.    In the absence of a specific factual
 
 
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         1                     Jacobsen  
         2      circumstance, I don't think that a decision
         3      can -- that I can say there is a policy one way
         4      or the other.
         5           Q.    It seems to me you said the policy is
         6      a case-by-case analysis of the particular
         7      circumstances; is that a fair statement?
         8           A.    About the use of the data, not about
         9      using DeCSS to decrypt.  But about the use.
        10           Q.    Use of the data?
        11           A.    Use of what may eventually come off
        12      the decrypted data?
        13           Q.    Yes.
        14           A.    It could well be a case-by-case
        15      situation, yes.
        16           Q.    I gave you a couple of scenarios.  One
        17      was taking a clip from a movie for use as a
        18      screensaver or part of a presentation on the
        19      history of cinema, another one was taking a song
        20      or two songs from a soundtrack for use in the car
        21      of the person who purchased the DVD, those are
        22      two factual cases.
        23                 Is that enough factual specificity to
        24      permit you to say whether that would be a
        25      permissible use of the information?
 
 
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         1                     Jacobsen  
         2                 MR. COOPER:  Now we have gotten to the
         3           point where I think based on the witness'
         4           prior testimony, it is clear that to the
         5           extent he has an answer to that question, it
         6           is derived exclusively from his discussions
         7           with counsel.  It is not an area that the
         8           MPAA has a policy which he implements in his
         9           job.
        10                 And he is only not here to testify on
        11           matters of legal conclusion, but he would
        12           necessarily be giving you privileged
        13           information in order to give you a response.
        14           Q.    Is that the case?
        15           A.    Let me clarify something.  In the
        16      example you gave me earlier, whether or not I
        17      understood that DeCSS can be used to perform the
        18      functions that you suggested and I answered that
        19      I don't know, I misunderstood your question.
        20                 I was assuming that you were asking
        21      the question whether DeCSS can be used on a
        22      selective basis to perform those functions, I did
        23      not know the answer.
        24                 If, in fact, you are asking me can
        25      DeCSS be used to decrypt the entire DVD and then
 
 
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         1                     Jacobsen  
         2      somebody can take the decrypted DVD and pull
         3      portions of it, I do understand that's possible.
         4      I want to clear up my prior testimony because I
         5      didn't understand what you said.
         6           Q.    I did understand you to make that
         7      distinction, that and only that.
         8                 Let me ask you, if you would, to
         9      clarify a prior statement when you said the only
        10      purpose, the one and only purpose of DeCSS is to
        11      decrypt information on a disk.
        12                 When you say that is the one and only
        13      purpose of the utility, you are limiting that
        14      statement, are you not, to the utility; is that
        15      correct?
        16           A.    Yes.  My understanding is what the
        17      utility itself does is it decrypts the disk and
        18      renders it in a nonencrypted format.  Thereafter,
        19      the digital material on that disk, you can do all
        20      sorts of things with it.
        21           Q.    There can be impermissible uses and
        22      there can be permissible uses?
        23                 MR. COOPER:  Now you are asking for a
        24           legal conclusion.  That is, again, an area
        25           which I think is inappropriate for this
 
 
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         1                     Jacobsen  
         2           witness to testify.
         3                 MR. HERNSTADT:  I'm not asking for a
         4           legal conclusion.
         5                 MR. COOPER:  You are.
         6                 MR. HERNSTADT:  I'm not.  Let me limit
         7           it.  I really don't want a legal conclusion.
         8           Q.    What I want to know is:  Based on your
         9      experience at the MPAA and your discussions with
        10      non-lawyers at the MPAA or discussions that
        11      include lawyers and non-lawyers, policy
        12      discussions, as opposed to legal strategy
        13      discussions or discussions in preparation for
        14      your deposition or as part of this litigation,
        15      has the question of whether there are permissible
        16      as well as non-permissible uses of decrypted
        17      copyrighted material from a DVD come up?
        18                 MR. COOPER:  Answer the question yes
        19           or no.
        20           Q.    Yes or no?
        21           A.    I already answered it I believe
        22      earlier when I said I had not had those
        23      discussions with non-lawyers.
        24  
        25  
 
 
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         1                     Jacobsen  
         2  
         3  
         4  
         5  
         6  
         7  
         8  
         9  
        10  
        11  
        12  
        13  
        14  
        15  
        16  
        17  
        18  
        19  
        20  
        21  
        22  
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        24  
        25  
 
 
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         1                     Jacobsen  
         2  
         3  
         4  
         5  
         6  
         7  
         8  
         9  
        10  
        11  
        12  
        13  
        14  
        15  
        16  
        17  
        18  
        19  
        20                 MR. HERNSTADT:  Why don't we take a
        21           short break?
        22                 (Whereupon, a recess was taken from
        23           2:03 p.m. to 2:12 p.m.)
        24      BY MR. HERNSTADT:
        25    
 
 
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         1                     Jacobsen  
         2   
         3   
         4   
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                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2   
         3   
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        25   
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2   
         3   
         4   
         5   
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        10   
        11   
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        25   
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2   
         3   
         4   
         5   
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        10   
        11   
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        25   
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2   
         3   
         4   
         5   
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         7   
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         9   
        10   
        11   
        12   
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        14   
        15   
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        19   
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        25   
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2   
         3   
         4   
         5   
         6   
         7   
         8   
         9   
        10   
        11   
        12   
        13   
        14   
        15   
        16           Q.    Let me ask you about some of the
        17      things that you said before.
        18                 Yesterday you were talking about
        19      hacking of DVD and making an unauthorized copy.
        20      Is there such a thing as an authorized copy of a
        21      DVD?
        22           A.    Yes.  It is what our member companies
        23      sell.
        24           Q.    Do you know if DVDs come with any
        25      statement on them, either on the box or the
 
 
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         1                     Jacobsen  
         2      packaging or the wrap anywhere, that states what
         3      the region code for that DVD is?
         4           A.    It is the same answer that I gave you
         5      this morning, no, I don't know.
         6           Q.    I asked you about the region code?
         7      I'm sorry.
         8                 You're correct.  What I want to ask
         9      you is the same question in terms of information
        10      beyond a disk in someplace or another that says
        11      it can only be played using a DVD player that has
        12      been licensed by the DVD CCA?
        13           A.    I don't know.
        14   
        15   
        16   
        17   
        18   
        19   
        20   
        21   
        22   
        23   
        24   
        25   
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2   
         3   
         4   
         5   
         6   
         7   
         8   
         9   
        10   
        11   
        12   
        13   
        14   
        15   
        16   
        17   
        18   
        19   
        20   
        21   
        22   
        23   
        24   
        25   
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2   
         3   
         4   
         5   
         6   
         7   
         8   
         9   
        10   
        11   
        12   
        13   
        14   
        15   
        16   
        17   
        18   
        19   
        20   
        21   
        22   
        23   
        24   
        25   
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2   
         3   
         4   
         5   
         6   
         7   
         8                 MR. HERNSTADT:  Off the record.
         9                 (Whereupon, a recess was taken from
        10           2:26 p.m. to 2:29 p.m.)
        11      BY MR. HERNSTADT:
        12           Q.    I asked you before about the IIPA.
        13      Are you the liaison between the MPAA and the
        14      IIPA?
        15           A.    No.
        16           Q.    Who is?
        17           A.    It really depends what the issue is.
        18      I'm not sure anyone is designated as the sole
        19      liaison.  IIPA is involved in a lot of different
        20      areas and it would depend.
        21           Q.    Specifically anti-pyracy efforts
        22      worldwide.
        23           A.    Anti-pyracy efforts worldwide have
        24      that have to do with enforcement would probably
        25      theoretically be me.
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2 
         3 
         4 
         5           Q.    Does the IIPA conduct its own
         6      international investigations?
         7           A.    Not to my knowledge.  I'm sorry.
         8           Q.    Does the IIPA conduct any raids?
         9           A.    Not to my knowledge.
        10           Q.    Has the MPAA found counterfeit DVDs
        11      for sale in the United States?
        12           A.    Can you tell me -- once again, we have
        13      the Taiwan problem.  I consider those to be
        14      unauthorized in the United States.  I don't know
        15      if you meant that by counterfeit.
        16           Q.    I mean what the MPAA, your members
        17      would consider pirated DVD disks.  Setting apart
        18      the question whether they are legal in the place
        19      of origin.
        20                 MR. COOPER:  What is the question?
        21           Q.    Has the MPAA found pirated DVDs for
        22      sale in the United States?
        23           A.    I would consider those to be
        24      unauthorized disks and, therefore, pirated.
        25           Q.    The disks made in Taiwan?
 
 
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         1                     Jacobsen  
         2           A.    Correct.
         3           Q.    For the purposes of this question, I'm
         4      asking you to ignore the legality or illegality
         5      of the disks in the place they are manufactured
         6      and only the legality of the disks in the place
         7      of sale.
         8                 In other words, if the Taiwanese law
         9      permits you to make copies of pre-1965 movies, I
        10      don't care about that.  But whether operating
        11      under this law you consider them to be pirated
        12      disks.
        13           A.    Yes.  If I find them in the United
        14      States for sale, there is an argument that they
        15      violate our copyright law.
        16           Q.    And you found such disks?
        17           A.    Yes.
        18           Q.    How many?
        19           A.    I wouldn't have an estimate, but it is
        20      a small amount.
        21           Q.    Is there any other offshore
        22      manufacturer that is sending disks to the United
        23      States for sale?
        24           A.    We have seen and seized -- Customs has
        25      seized other DVD disks coming in that were not
 
 
                              INTERIM COURT REPORTING
                                                            358
 
         1                     Jacobsen  
         2      pre-'65 but that also had been manufactured in
         3      Taiwan that were unauthorized.
         4           Q.    How do you know if the disk is
         5      manufactured in Taiwan?
         6           A.    Well, it is a deduction based upon the
         7      fact that they are shipped from Taiwan.  And when
         8      we examine the disks, they have all the indicia
         9      with a Taiwan company name on them.
        10           Q.    Has the MPAA found any homegrown DVD
        11      piracy?  By that I mean pirated DVDs or
        12      counterfeit DVDs being manufactured in the United
        13      States?
        14           A.    I think the answer is no.
        15           Q.    Mexico, same question?
        16           A.    No.
        17           Q.    Canada?
        18           A.    No.
        19           Q.    Has the MPAA found pirated VCDs that
        20      are made in the United States?
        21           A.    No.
        22           Q.    How about videocassettes?
        23           A.    Oh, yes.
        24           Q.    Is it safe to say from your last
        25      response, that the overwhelming majority, more
 
 
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         1                     Jacobsen  
         2      than say 95 percent of counterfeit products, hard
         3      goods that are made in the United States are
         4      videocassettes?
         5           A.    That's correct.  This is still the
         6      videocassette market primarily.
         7           Q.    Approximately how many videocassettes
         8      were seized last year?
         9           A.    Approximately 500,000.
        10                 MR. COOPER:  You were talking
        11           domestically, right?
        12                 MR. HERNSTADT:  Domestically.
        13           A.    In the vicinity of 500,000.
        14           Q.    Can you extrapolate from that what the
        15      market is for the total number of pirated
        16      videocassettes that the MPAA believes is being
        17      sold annually in the United States?
        18                 MR. COOPER:  Being an old antitrust
        19           lawyer, I want to make sure we are using the
        20           concept of "market" the same.
        21                 You are really saying having seized
        22           500,000 videocassettes last year, do we have
        23           any sense of the number that might have been
        24           manufactured and not seized in the United
        25           States?
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2                 MR. HERNSTADT:  Yes.
         3           A.    I would have an estimate.  Five
         4      million.
         5           Q.    Of the 15 million optical disks, was
         6      that 15 million optical disks seized last year?
         7           A.    Worldwide.
         8           Q.    Worldwide that were seized?
         9           A.    Yes.
        10           Q.    Based on that, can you extrapolate?
        11      Would the MPAA make an estimate of what the total
        12      number of counterfeit or pirated optical disks
        13      that were made and distributed?
        14           A.    We could, but I will have to tell you
        15      I have not had a chance in my new job yet to
        16      assimilate the data necessary to make that kind
        17      of extrapolation.  I would have to have some
        18      sense.
        19                 There is many other factors I would
        20      have to look at before I can make that
        21      extrapolation.
        22           Q.    Of the 15 million optical disks
        23      worldwide, virtually none of them were found in
        24      this country?
        25           A.    A very small amount were found in this
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2      country.
         3           Q.    Less than 50,000?
         4           A.    That's a good estimate, yes.
         5                 MR. HERNSTADT:  Basically, subject to
         6           the review of the documents that have just
         7           started to be produced and I guess we can
         8           work out questions of privilege and the
         9           further document production we have
        10           requested, maybe we can also work out some
        11           way of getting a couple of answers to some
        12           of the questions Mr. Jacobsen says he does
        13           not know now but anticipates maybe in the
        14           next month or so he might have an answer,
        15           I'm done.
        16
        17
        18         (Continued on next page to include jurat.)
        19
        20
        21
        22
        23
        24
        25
 
 
                              INTERIM COURT REPORTING
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         1                     Jacobsen  
         2                 MR. COOPER:  I appreciate that.
         3                 Obviously we reserve our position with
         4           respect to the timing of document production
         5           and what implication, if any, that has on
         6           the closure of this witness' testimony.
         7                 I welcome the opportunity to talk
         8           about the various document issues that have
         9           arisen during the deposition and I thank
        10           you.
        11                 (Time noted: 2:40 p.m.)
        12                            __________________________
        13                                KENNETH A. JACOBSEN
        14
        15      Subscribed and sworn to before me
        16      this _____ day of ________, 2000.
        17      __________________________
        18             NOTARY PUBLIC
        19
        20
        21
        22
        23
        24
        25
 
 
                              INTERIM COURT REPORTING
                                                            363 
                                                              
 
         2                         C E R T I F I C AT E
         3      STATE OF NEW YORK      )
         4                            :  ss.
         5      COUNTY OF NEW YORK     )
         6
         7                 I, MAYLEEN CINTRON, a Shorthand
         8           Reporter and Notary Public within and for
         9           the State of New York, do hereby certify:
        10                 That KENNETH A. JACOBSEN, the witness
        11           whose deposition is hereinbefore set forth,
        12           was previously duly sworn by a Notary Public
        13           and that such deposition is a true record of
        14           the testimony 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 by 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 18th day of May, 2000.
        22
        23                            __________________________
                                            MAYLEEN CINTRON
        24
        25
 
 
                              INTERIM COURT REPORTING
                                                            364
 
         2      -------------------- I N D E X -----------------
         3      WITNESS            EXAMINATION BY           PAGE
         4      K. Jacobsen        Mr. Hernstadt            210
         5
         6      REQUESTS:   PAGE   216, 217, 238, 256, 260, 261
         7                         288
         8      DIRECTIONS: PAGE   303
         9      ---------------- E X H I B I T S ----------------
        10      EXHIBITS:                                FOR I.D.
        11      Defendant's Exhibit 15, MSBC website
        12      article "Movie Pirates Hitting Prime Time.... 264
        13      Defendant's Exhibit 16, ZD Net News website
        14      article "Inside the Online Movie
        15      Underground,"................................ 274
        16      Defendant's Exhibit 17, MSNBC website
        17      article "Piracy Intrigue in Palika Bazaar:
        18      Hollywood Goes Toe-To-Toe With India's
        19      Video Counterfeiters,"....................... 275
        20      Defendant's Exhibit 18, Second Amended
        21      Complaint.................................... 331
        22
        23                             o0o
        24
        25
 
 
                              INTERIM COURT REPORTING