Fritz E. Attaway Deposition, in MPAA v. 2600
Washington, D.C.; June 7, 2000
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)
1
1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
3 - - - - - - - - - - - - - - - - - - x
UNIVERSAL CITY STUDIOS, INC.; :
4 PARAMOUNT PICTURES CORPORATION; :
METRO-GOLDWYN-MAYER STUDIOS, INC.; :
5 TRISTAR PICTURES, INC.; COLUMBIA :
PICTURES INDUSTRIES, INC.; TIME :
6 WARNER ENTERTAINMENT CO., L.P.; :
DISNEY ENTERPRISES, INC.; AND :
7 TWENTIETH CENTURY FOX FILM :
CORPORATION, :
8 :
Plaintiffs, :
9 :
vs. : 00 Civ. 0277
10 :
ERIC CORLEY A/K/A, : (LAK)(RLE)
11 "EMMANUEL GOLDSTEIN," :
AND 2600 ENTERPRISES, INC., :
12 :
Defendants. :
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14 Washington, D.C.
15 Wednesday, June 7, 2000
16 Deposition of FRITZ E. ATTAWAY, a witness
17 herein, at the offices of Proskauer Rose LLP, 1233
18 20th Street, Northwest, Washington, D.C., commencing
19 at 10:51 a.m., and the proceedings being taken down
20 by Stenotype and transcribed by KAREN YOUNG.
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22
INTERIM COURT REPORTING
23 545 FIFTH AVENUE, SUITE 900
NEW YORK, NEW YORK 10017
24 (212) 490-3430
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1 A P P E A R A N C E S O F C O U N S E L
2 On behalf of the Plaintiffs:
3 PROSKAUER ROSE LLP
4 BY: LEON GOLD, ESQ.
5 1585 Broadway
6 New York, NY 10036-8299
7 (212) 969-3480
8
9 (Present only after 3:03 p.m.)
10 MOTION PICTURE ASSOCIATION
11 BY: MARK D. LITVACK, ESQ.
12 15503 Ventura Boulevard
13 Encino, CA 91436
14 (818) 995-6600
15
16 On behalf of the Defendants:
17 FRANKFURT, GARBUS, KLEIN & SELZ, P.C.
18 BY: EDWARD HERNSTADT, ESQ.
19 488 Madison Avenue
20 New York, New York 10022
21 (212) 980-0120
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1 C O N T E N T S
2 WITNESS: FRITZ E. ATTAWAY
3 EXAMINATION BY: PAGE
4 By Mr. Hernstadt ........................... 5
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1 DEPOSITION EXHIBITS
2 FRITZ E. ATTAWAY
3 NUMBER DESCRIPTION IDENTIFIED
4 34 MPAA 1998 business plan .................... 40
5 35 MPAA 1999 business plan .................... 44
6 36 MPAA 2000 business plan .................... 93
7 37 Attaway letter to Kasunic, 4/14/00 ......... 89
8 38 Letter to David Carson, 3/31/00 ............ 95
9 39 Attaway letter to Perlmutter, 12/7/98 ..... 102
10 40 Attaway letter to Felts, 2/19/99 .......... 108
11 41 Attaway letter to Carson, 2/16/00 ......... 120
12 42 Attaway letter to Carson, 3/31/00 ......... 124
13 43 Testimony of Mr. Attaway, 6/24/99 ......... 132
14 44 Reply comments, 3/31/00 ................... 135
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17 (EXHIBITS RETAINED BY COUNSEL)
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2 MR. HERNSTADT: As an initial matter, I'd
3 like to apologize for the glitches this morning in
4 terms of getting the reporter here and getting going
5 on time.
6 MR. GOLD: Thank you. No problem.
7 MR. HERNSTADT: And I appreciate your
8 courtesy and patience.
9 MR. GOLD: No problem at all.
10 - - -
11 Whereupon,
12 FRITZ E. ATTAWAY,
13 having been called as a witness by Counsel for
14 Defendants and having been duly sworn by the notary
15 public, was examined and testified as follows:
16 - - -
17 EXAMINATION BY COUNSEL FOR THE DEFENDANTS
18 BY MR. HERNSTADT:
19 Q. Mr. Attaway, I'm Edward Hernstadt from
20 Frankfurt, Garbus, Klein & Selz. We represent the
21 defendants Eric Corley a/k/a Emmanuel Goldstein and
22 2600 Enterprises, Inc. in the Universal et al.
23 against them litigation. Thank you for being here.
24 Have you ever been deposed before?
25 A. Yes.
6
1 Q. How many times?
2 A. Maybe two or three. Certainly no more
3 than three.
4 Q. When was the last time you were deposed?
5 A. At least six years ago. It could be more.
6 Q. Well, I'll very briefly then refresh your
7 recollection that this is sworn testimony. You
8 should answer the questions. If you don't
9 understand a question, ask me. I'll restate it or
10 explain it to you or say it in a way that you can
11 understand. Are you on any kind of medication or
12 anything that would prevent you from answering
13 questions I put to you fully and coherently?
14 A. No. Only coffee.
15 Q. Excellent. Mr. Attaway, could you tell
16 me, how long have you been employed by the MPAA?
17 A. I have been employed by MPAA for 24 years.
18 Twenty-four and a half years now I believe.
19 Q. Are you an attorney?
20 A. Yes, I am.
21 Q. Have you practiced as an attorney?
22 A. Yes. Before MPAA, I was an attorney for
23 the Federal Communications Commission, and I've
24 practiced as an attorney for MPAA for 24 and a half
25 years.
7
1 Q. Could you tell me what your educational
2 background is?
3 A. I have a B.A. degree from the College of
4 Idaho and a J.D. degree from the University of
5 Chicago.
6 Q. And what is your present position with the
7 MPAA?
8 A. I'm senior vice president for government
9 relations and Washington general counsel.
10 Q. And can you give me a run-through from 24
11 years ago to the best of your recollection of the
12 different positions you've held with the MPAA?
13 A. I believe my first title was assistant to
14 the president. Then I became a vice president. I'm
15 not sure what it was for, but I've been in
16 government relations the entire time, and then
17 senior vice president and then senior vice president
18 and general counsel, in that succession.
19 Q. SVP and then general counsel?
20 A. Right.
21 Q. Did you get any additional duties when you
22 became general counsel?
23 A. No, not really.
24 Q. Was there a general counsel prior to you?
25 A. In Washington, no.
8
1 Q. I'm sorry?
2 A. No, not in Washington. There was and
3 still is a general counsel in Los Angeles.
4 Q. Okay. Would it be fair to say that the
5 granting to you the title general counsel was a
6 recognition of what you'd already been doing, as
7 opposed to changing your job?
8 A. I think that's fair to say, yes.
9 Q. And you say that you've been -- your
10 responsibilities have included government relations
11 essentially the entire time you were there.
12 A. Yes.
13 Q. Could you explain what you do? What is
14 government relations?
15 A. I represent the Motion Picture Association
16 and the motion picture industry in all matters
17 relating to the federal government, and that ranges
18 from legislative issues to regulatory issues to
19 international treaty issues. Anything that involves
20 the federal government.
21 Q. And when you say motion picture industry,
22 are you talking about the plaintiffs in this case?
23 A. Yes, the seven studios that belong to
24 MPAA.
25 Q. Okay. Does the MPAA consider that its
9
1 work would benefit other studios who are not members
2 as well?
3 A. I think we consider ourselves in most
4 instances, not all, but in most instances as
5 representing the industry.
6 Q. Okay. Whether or not they're members?
7 A. Correct.
8 Q. Okay. What are your job functions with
9 respect to legislation?
10 A. I represent the association's views and
11 positions to members of Congress and staff.
12 Q. And how do you do that?
13 A. In various ways, including exchanges of
14 information in private meetings, testifying before
15 Congressional committees, supplying written
16 documents both in formal hearings and on an informal
17 basis.
18 Q. Do you have anything to do with the MPAA's
19 anti-piracy efforts?
20 A. No.
21 Q. Are you familiar with the MPAA's
22 anti-piracy efforts?
23 A. Somewhat.
24 MR. HERNSTADT: Can we go off the record
25 for a second?
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2 (Discussion off the record)
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4 BY MR. HERNSTADT:
5 Q. What is the nature of your familiarity?
6 MR. GOLD: This is an area that we're
7 going to designate as confidential.
8 MR. HERNSTADT: Fine.
9 MR. GOLD: You may answer.
10 MR. HERNSTADT: Just to be clear, my
11 understanding is that we're operating under what the
12 judge said yesterday, that everything is
13 confidential for the first ten days and during that
14 time, you can designate -- you have those ten days
15 of confidentiality, blanket confidentiality within
16 which to make smaller designations. To the extent
17 that you want to designate within the -- during the
18 deposition, feel free to, but you have no obligation
19 to.
20 MR. GOLD: That's what I was doing, but I
21 obviously retain -- reserve my right to make further
22 --
23 MR. HERNSTADT: Of course.
24 MR. GOLD: But I thought it might be
25 helpful for everybody if I just did it when it came
11
1 up. I won't catch every one.
2 MR. HERNSTADT: That's fine.
3 MR. GOLD: But you've been very generous,
4 by the way, because the judge said, and I'm forced
5 to disclose the truth, with Mr. Attaway, three days.
6 MR. HERNSTADT: That's right, and I would
7 have remembered that.
8 MR. GOLD: Eventually you would have.
9 MR. HERNSTADT: Hopefully before Monday.
10 BY MR. HERNSTADT:
11 Q. Okay. Do you want to hear the question
12 again?
13 A. Yes, please.
14 - - -
15 THE REPORTER: "Question: What is the
16 nature of your familiarity?"
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18 BY MR. HERNSTADT:
19 Q. The familiarity with the anti-piracy
20 efforts.
21 A. In the course of my representation of the
22 industry, particularly before the U.S. trade
23 representative, I've become familiar with our
24 anti-piracy activities because it directly relates
25 to the level of intellectual property protection
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1 provided by foreign countries to our works, which is
2 a trade issue I guess I should add to that. In
3 addition, certainly the existence of adequate and
4 effective copyright protection under U.S. law is an
5 issue that we are very interested in and in that
6 context I've become somewhat familiar with anti-
7 piracy activities domestically.
8 Q. Does the MPAA create documents that set
9 forth the estimated losses as a result of piracy?
10 A. Yes.
11 Q. And do you get -- are you provided with
12 copies of these documents?
13 A. Yes.
14 Q. Okay.
15 A. We -- my office generates that information
16 that is supplied on an annual basis to the U.S.
17 trade representative.
18 Q. Okay. And what do you use to create those
19 documents?
20 A. We typically ask our regional offices to
21 provide on a country-by-country basis estimated
22 losses due to piracy.
23 Q. And the regional offices being Los
24 Angeles, Hong Kong?
25 A. Brussels, Rio.
13
1 Q. And do they produce -- strike that. Do
2 they give you an annual estimate?
3 A. They provide information to people in our
4 Los Angeles office, who in turn provide it to my
5 office, specifically to Bonnie Richardson, who is in
6 charge of our trade issues.
7 Q. Okay. And is this all in reports or
8 documents or memos or something to that?
9 A. They're in various documents that are put
10 together in an annual report that we and other
11 copyright industries file with the U.S. trade
12 representative.
13 Q. Do you get quarterly reports?
14 A. No.
15 Q. Internal quarterly reports?
16 A. I don't get them, no.
17 MR. HERNSTADT: To the extent that we
18 haven't asked for these documents in the deposition
19 of Mr. Jacobson, we request production of the annual
20 reports dating back to '97 I guess.
21 BY MR. HERNSTADT:
22 Q. Would the '97 report set forth the losses
23 for '96?
24 A. Typically, yes.
25 MR. HERNSTADT: So '97 to the future and
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1 then the supporting documents that were used to
2 create these reports.
3 BY MR. HERNSTADT:
4 Q. Do you review these reports before they go
5 out?
6 A. No. I may review bits and pieces of them,
7 Confidential
8 and I generally defer to her judgment in terms of a
9 final review.
10 Q. Do the reports break down the losses to
11 losses per hard -- go off the record for a second.
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13 (Discussion off the record)
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15 BY MR. HERNSTADT:
16 Q. Hard goods.
17 A. No.
18 Q. It's --
19 A. It's just one number.
20 Q. It's a global figure for total losses?
21 A. Correct.
22 Q. Does the MPAA develop internal records
23 that break down the total number into subsets of
24 losses attributable to different types of hard
25 goods?
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1 A. In calculating the estimates, someone at
2 some point would have to consider the various media,
3 theatrical, television, home video, et cetera. By
4 the time they get to me though, it's just one
5 number.
6 Q. So I take it that Mr. Jacobson and before
7 Confidential
8 knowledgeable about those numbers?
9 A. And people who work for them.
10 Q. Do you interact with the MPAA members?
11 A. Yes.
12 Q. On a regular basis?
13 A. Yes.
14 Q. Could you tell me how you do that? What's
15 the nature of the interaction?
16 MR. GOLD: You mean by telephone or mail
17 or --
18 BY MR. HERNSTADT:
19 Q. By telephone -- well, no. What I mean is
20 what is the nature of the contact? Why do you
21 contact them, why do they contact you?
22 MR. GOLD: Well, to the extent these
23 contacts relate to your giving legal advice to the
24 members, I would direct you not to answer.
25 MR. HERNSTADT: I wouldn't want to know
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1 the substance of that, but if they contact him for
2 legal advice, I think I'm entitled to know that.
3 MR. GOLD: Yes or no? Okay.
4 MR. HERNSTADT: Yes, yes or no.
5 MR. GOLD: Okay. Do the members contact
6 you for legal advice?
7 THE WITNESS: From time to time, yes.
8 BY MR. HERNSTADT:
9 Q. And what else do they contact you for,
10 setting aside legal advice?
11 A. Information. I disseminate information
12 about legislative and regulatory events and
13 activities.
14 Q. Do the members, the M -- were you done?
15 I'm sorry.
16 A. Yes.
17 Q. Do the MPAA members have their own
18 representatives in Washington?
19 A. All but one, yes.
20 Q. And what's the difference between what the
21 member -- and by member, I'm also talking about
22 plaintiffs, just so you know, all the way through.
23 What's the difference between what the member
24 representatives do, if you know, and what you do?
25 A. What they actually -- what they actually
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1 do, there is no difference; however, obviously they
2 represent their own individual company and I
3 represent the seven MPAA members, and sometimes that
4 involves different activities.
5 Q. With respect to the Digital Millennium
6 Copyright Act and with respect to digital copying,
7 digital access, you know, that sort of general area,
8 do the members' representatives do anything
9 different than what you do?
10 A. No, not in terms of what they actually do.
11 Q. Okay. So that is an area where
12 everybody's interests are uniform?
13 A. I wouldn't say uniform, no. In fact, not
14 always the -- the member companies don't always take
15 the same position on certain issues, but --
16 Q. I'm really talking specifically about sort
17 of digital -- copyrighted materials. Member
18 companies in digital form.
19 A. I think in general, yes, they're all close
20 to the same.
21 Q. Do you know if the members do any
22 independent anti-piracy efforts?
23 A. I don't know.
24 Q. Do you know if the MPAA undertakes
25 anti-piracy efforts on behalf of the members?
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1 A. Yes, we do.
2 Q. During the legislative process that led up
3 to the passage of the DMCA, Digital Millennium
4 Copyright Act, for the benefit of the reporter, were
5 member representatives active in lobbying Congress
6 and in testifying for Congress? We can take that
7 first lobbying, then testifying.
8 A. Lobbying, yes. Testifying, no.
9 Q. Did the MPAA through various individuals
10 testify before Congress?
11 A. Yes.
12 Q. And who did the testimony?
13 A. Typically it would have been Mr. Valenti.
14 In most cases when he was not available, it would
15 have been myself.
16 Q. On how many occasions did either you or
17 Mr. Valenti testify before Congress on the Digital
18 Millennium Copyright Act?
19 A. I certainly don't know the exact number,
20 but my estimate would be maybe half a dozen times
21 throughout the process, and that process began long
22 before the term Digital Millennium Copyright Act was
23 coined.
24 Q. When did the process begin?
25 A. It really began -- I'm not good at
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1 chronologies, but with the formation or the
2 initiation of the National Information
3 Infrastructure Advisory Council, which would have
4 been in the early '90s, maybe '94, '95, that time
5 period.
6 MR. HERNSTADT: Off the record.
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8 (Discussion off the record)
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10 BY MR. HERNSTADT:
11 Q. During the course of testifying -- well,
12 strike that. Are you familiar with the testimony
13 that Mr. Valenti made before --
14 A. Yes.
15 Q. -- the Congress?
16 A. Yes.
17 Q. During the course of the testimony of
18 either Mr. Valenti or yourself, did the MPAA take
19 positions with respect to the impact on fair use of
20 the DMCA?
21 A. I can't recall specific statements, but in
22 general I would say yes.
23 Q. And would the same be the case for the
24 impact on reverse engineering of the DMCA?
25 MR. GOLD: Did the MPAA take positions --
20
1 BY MR. HERNSTADT:
2 Q. Did the MPAA take positions before
3 Congress?
4 A. I don't think we ever addressed that in
5 formal testimony. It very likely came up in the
6 course of our lobbying activities when the DMCA was
7 being debated.
8 Q. So it would have -- in letters to
9 Congresspersons or the like?
10 A. Perhaps, yes.
11 Q. And did the MPAA take positions during the
12 course of testifying or lobbying Congress on the
13 DMCA on the impact -- excuse me. Strike that -- on
14 whether the DMCA permitted circumvention of
15 encryption or similar systems? Do you understand
16 that?
17 A. No, I don't because --
18 MR. GOLD: If you don't understand it --
19 THE WITNESS: The DMCA did not exist at
20 the time, so --
21 BY MR. HERNSTADT:
22 Q. Okay. I'm talking about the impact of the
23 proposed legislation, what that would mean in
24 terms --
25 MR. GOLD: Could we get a question? I
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1 just want you to --
2 MR. HERNSTADT: Yeah, I'll give a new
3 question.
4 MR. GOLD: Thank you.
5 MR. HERNSTADT: That will make things a
6 little easier.
7 MR. GOLD: Thanks.
8 BY MR. HERNSTADT:
9 Q. During the course of the MPAA's testifying
10 before Congress or lobbying Congress with respect to
11 the proposed legislation that was eventually passed
12 as the DMCA, did the MPAA take positions on whether
13 circumvention of access control technologies would
14 be permissible under the proposed legislation?
15 A. I'm sure that we made statements relating
16 to that question, and our position was that -- and
17 that the anti-circumvention provisions did not
18 affect fair use one way or the other. Fair use was
19 not relevant.
20 Q. Why is that?
21 MR. GOLD: You're saying --
22 MR. HERNSTADT: First I guess my question
23 is why is fair use not relevant? I'm asking for the
24 second of the --
25 MR. GOLD: I understand. You asked him
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1 what position was taken before Congress.
2 MR. HERNSTADT: Uh-huh.
3 MR. GOLD: And to that we have no
4 attorney-client privilege. That's why I didn't
5 interrupt.
6 MR. HERNSTADT: Okay.
7 MR. GOLD: Now you're asking him why did
8 they take that position, and I think it flows out of
9 his participation and discussions where he was
10 giving legal advice regarding that matter and other
11 matters, therefore, I think I have to state that
12 it's privileged.
13 MR. HERNSTADT: Okay. I don't want you to
14 get into privileged areas, but I believe your
15 testimony was that the position of the MPAA was and
16 still is, so that there's nothing different, and in
17 that case -- there's no change in the position that
18 it was and still is, that anti-circumvention
19 provisions do not impact fair use and fair use is
20 irrelevant, and if that's the case, I don't see how
21 privilege would apply. I don't see how a privilege
22 would apply.
23 MR. GOLD: To that answer?
24 MR. HERNSTADT: Yes.
25 MR. GOLD: No.
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1 MR. HERNSTADT: And also to an explanation
2 for that answer.
3 MR. GOLD: Well, when you ask for an
4 explanation of that answer, you're going to get into
5 conversations he had within the MPAA. In the first
6 question you got into conversations he had with
7 Congress or committees of Congress. There's no
8 privilege with respect to those conversations. When
9 you get into a question that would call for his
10 telling you what was developed, he's a general
11 counsel to this organization.
12 MR. HERNSTADT: I understand. Then let me
13 be very specific. I would like you to explain to me
14 why the anti-circumvention provisions do not affect
15 fair use and why fair use is irrelevant, but in
16 explaining that, please don't get into conversations
17 that you've had subsequent to I guess 1998 when you
18 testified -- when the MPAA took a position that it
19 publicly made to Congress. I understand that that
20 position hasn't changed, but if you've had
21 conversations subsequent to that, then I would guess
22 that's where you were --
23 MR. GOLD: Look, I'm being very -- I'm not
24 being complicated. When your questions can be
25 answered without getting into matters he discussed
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1 within the MPAA in the course of giving legal
2 advice, they're not privileged. When they do get
3 into that area, when that's where the response
4 has -- and that's what -- he's a working lawyer.
5 That's what he does.
6 MR. HERNSTADT: I understand.
7 MR. GOLD: He gives legal advice, and the
8 answer to the question would have to disclose the
9 legal advice he gave because he was giving advice on
10 every one of these issues.
11 BY MR. HERNSTADT:
12 Q. Well, can you answer that question without
13 getting into privileged areas?
14 A. I can't answer that question without
15 giving a legal opinion, which is what I do during
16 the course of my -- in the course of my employment
17 as a lawyer.
18 Q. Okay. Then let me limit the question to
19 why was the MPAA's position at the time you
20 testified or Mr. Valenti testified before Congress
21 that anti-circumvention provisions do not affect
22 fair use and that fair use is irrelevant.
23 MR. GOLD: Well, see, that's where you're
24 getting right into the advice he gave his clients in
25 discussions that were held preceding these
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1 appearances at Congress, and he operates as a lawyer
2 and he gives legal advice. That's what he does.
3 BY MR. HERNSTADT:
4 Q. Then answer that question only to the
5 extent that that was something you discussed with
6 third parties, and that means either testifying or
7 lobbying or in conversations with Congressional
8 aides or Congresspersons.
9 A. Well, that's very difficult to do, to
10 remember every conversation that I might have had on
11 this subject with an outside party, but in general,
12 I would have expressed the view that the
13 anti-circumvention provisions of the DMCA, which we
14 very much supported, were separate and apart from
15 limitations on the rights of copyright owners as
16 expressed by the first sale doctrine.
17 The 1201(a)(1) prevents unauthorized
18 access, just as the Communications Act has prevented
19 unauthorized access to cable programming and
20 satellite programming for many years. The Fair Use
21 Doctrine was not an issue there and we believe that
22 it's not an issue in the DMCA anti-circumvention
23 provisions.
24 Q. During the lobbying process prior to the
25 passage of the DMCA, did you have conversations with
26
1 anyone, including Congressional aides, Congress-
2 persons, press, other industry people,
3 representatives of organizations that favored
4 access, shall we say, or more broader access to
5 copyrighted materials in which you discussed fair
6 use and the continued vitality of the Fair Use
7 Doctrine?
8 A. I'm sure I did. Again, I can't remember
9 specific conversations, but --
10 Q. Okay.
11 MR. GOLD: The lobbying processes and
12 techniques of the MPAA and its representatives is in
13 the area that I will designate as confidential.
14 MR. HERNSTADT: The techniques or --
15 MR. GOLD: The lobbying processes and
16 techniques. To me it's the same as processes, so --
17 MR. HERNSTADT: Okay. I mean, in terms of
18 like Mr. Attaway's prior statement that as part of
19 his lobbying efforts, he would talk to
20 Congresspeople and Congressional aides?
21 MR. GOLD: Yes.
22 MR. HERNSTADT: Okay.
23 MR. GOLD: That doesn't block you from
24 asking anything.
25 MR. HERNSTADT: I understand. That's
27
1 something we can always address again later if we
2 need to.
3 MR. GOLD: We can always talk later. Call
4 me and we'll have a pleasant discussion about it.
5 I'm serious actually.
6 MR. HERNSTADT: I am too. I am too. Off
7 the record.
8 - - -
9 (Discussion off the record)
10 - - -
11 BY MR. HERNSTADT:
12 Q. Again without intruding on the
13 attorney-client privilege, could you tell me to the
14 best of your recollection the types of conversations
15 you had about why the anti-circumvention provisions
16 did not limit or impact fair use in the traditional
17 sense apart from what you just described?
18 A. Generally the position that we expressed
19 throughout this process with regard to fair use was
20 that copyright owners or property owners in general
21 have never been prevented from locking up their
22 property preventing access, and that the Fair Use
23 Doctrine has never been interpreted to permit
24 someone to throw a brick through a Blockbuster
25 window in order to gain access to a motion picture
28
1 in order to exercise fair use.
2 That concept was applied to electronic
3 encryption in the anti-circumvention provisions of
4 the Communications Act. We were applying the same
5 concept -- we felt we were applying the same concept
6 in the DMCA in a broader scope, but we felt -- we
7 feel that in none of these instances the Fair Use
8 Doctrine is being affected because the issue is
9 access, and the Fair Use Doctrine has never been
10 interpreted to allow unauthorized access.
11 Q. What constitutes authorized access?
12 MR. GOLD: And again, you're asking him
13 this question to find out what positions the MPAA
14 was taking with members of Congress or committees of
15 Congress?
16 MR. HERNSTADT: Right. I think we can
17 assume for the next series of questions that I'm
18 going to ask you that Mr. Gold has directed you not
19 to intrude into the attorney-client privilege and
20 just limit your answers to the conversations you've
21 had with non-parties. Is that a fair statement?
22 MR. GOLD: It is.
23 THE WITNESS: I don't have any particular
24 recollection that this issue ever came up. I think
25 the general understanding of all parties was that
29
1 authorized access meant access with the permission
2 of the owner of the material. Beyond that I don't
3 think it was ever discussed.
4 BY MR. HERNSTADT:
5 Q. Did you ever have a discussion in which
6 you were asked if the fact that someone purchases a
7 DVD makes a difference in terms of authorized
8 access?
9 A. Not that I recall.
10 Q. Earlier you talked about the
11 Communications Act prohibiting unauthorized access
12 to cable boxes, or cable television and satellite
13 television.
14 A. Uh-huh.
15 Q. Is it fair to say that a consumer gets
16 authorized access to cable or satellite programming
17 by purchasing a contract or entering into a contract
18 with the cable provider and satellite program
19 provider?
20 A. Yes, by being a subscriber.
21 Q. Okay. And in the context of DVDs
22 specifically, does the consumer get authorized
23 access to the material on the DVD by purchasing the
24 DVD?
25 A. No.
30
1 Q. Why is that? Could you explain that?
2 A. In order to obtain authorized access to a
3 DVD, the consumer has to in effect make two
4 purchases. He or she has to buy a D -- the
5 software, a DVD disk.
6 Q. The media?
7 A. The media, and also has to purchase a DVD
8 display device, which is specifically authorized to
9 obtain access to the motion picture in an
10 intelligible form under certain terms and
11 conditions.
12 Q. Do you know what the DVD CCA is?
13 A. Yes, generally.
14 Q. What is it?
15 A. It is -- specifically CCA or -- yes, CSS
16 is the content scramble system, which is the system
17 used to restrict access to DVD content.
18 Q. And it is what? The DVD CCA -- what's its
19 relationship to CSS?
20 A. The DVD CCA I guess one would describe as
21 the administrator of the licensing system for CSS.
22 Q. Is that different than being the licensor?
23 MR. GOLD: Than being the licensor, O-R?
24 MR. HERNSTADT: Yes.
25 THE WITNESS: I'm not sure who the
31
1 licensor is. It has evolved. The CSS was developed
2 by Matsushita, which I believe initially was the
3 licensor.
4 BY MR. HERNSTADT:
5 Q. Did the MPAA have anything to do with the
6 formation or creation of the DVD CCS?
7 A. We certainly were a party to discussions
8 over a long period of time, which actually are still
9 in process, concerning a permanent entity to
10 administer the CSS license, licenses. The formation
11 of DVD CCA I believe was at the instructions of
12 Matsushita and Toshiba, and although MPAA knew of
13 its existence, we were not a participant in its
14 creation.
15 Q. Do the MPAA members license CSS from the
16 DVD CCA in order to put it on the DVDs?
17 A. That's my understanding, yes.
18 Q. And then the consumer electronics
19 manufacturers and consumer software programmers who
20 create the DVD players, stand alone, home players or
21 software players, do they also license CSS from the
22 DVD CCA?
23 A. Yes.
24 Q. So is it fair to say, and feel free to
25 disagree with me because I'm going to sort of
32
1 recapitulate what I understand your testimony to be
2 about this system, that in order to gain authorized
3 access to the materials on a CSS encrypted DVD, the
4 consumer must purchase a DVD, a legitimate DVD,
5 we'll call it, and a player that is licensed by the
6 DVD CCA?
7 A. Yes.
8 Q. Who else is party to these discussions
9 regarding the administration of the CSS license?
10 MR. GOLD: You mean the discussions that
11 the witness referred to when he said MPAA
12 participated in some discussions?
13 MR. HERNSTADT: Right.
14 MR. GOLD: Relating --
15 MR. HERNSTADT: For a long time, and they
16 are ongoing, relating to the administration of the
17 CSS license.
18 THE WITNESS: Companies -- the leading
19 companies in the computer industry and the consumer
20 electronics industry generally.
21 BY MR. HERNSTADT:
22 Q. Are any other organizations, industry
23 organizations like the MPAA participants?
24 A. Yes. Again, the associations that
25 represent those two industries, the computer
33
1 electronics industry, which would be the Computer
2 Electronics Association and the Information
3 Technology Industries Association, ITI.
4 Q. Not ITIA?
5 A. I don't think so. I think the acronym is
6 just ITI.
7 Q. And what individual companies are
8 participants in this?
9 A. It varies because some companies have been
10 participants in one stage and they drop out and
11 others come in, but generally the major companies in
12 these industries, IBM, Intel, Compaq on the computer
13 side, and there are many, many more. The best way
14 to find that out is to look at the attendance list
15 at the Copy Protection Technical Working Group
16 meetings.
17 Q. And that is the -- that's the group -- or
18 that's the name of the group that has the meetings
19 that you've been discussing?
20 A. Yes, the Copy Protection Technical Working
21 Group is an open forum that meets once a month to
22 discuss issues relating to copy protection. The
23 discussions relating to the formation of a permanent
24 licensing entity for CSS generally consisted of a
25 smaller group consisting of representatives from the
34
1 three industries.
2 Q. Okay. Do you have attendance lists for
3 the CPTWG?
4 A. No. Oh, for the CPTWG?
5 Q. Yes?
6 A. I don't, but I believe they exist.
7 Q. Do you know if anybody at the MPAA has
8 such lists?
9 A. I do not know.
10 Q. Are you the person from the MPAA who
11 participates in these --
12 A. I'm one of them, yes.
13 Q. Who else?
14 A. Brad Hunt, who is --
15 Q. CTO?
16 A. Pardon me?
17 Q. I'm sorry. Go ahead.
18 A. He is MPAA's -- I think his title is chief
19 technical officer.
20 MR. HERNSTADT: Off the record.
21 - - -
22 (Discussion off the record)
23 - - -
24 BY MR. HERNSTADT:
25 Q. I would request production of the
35
1 attendance records if Mr. Hunt has them or if you
2 find that you have them, Mr. Attaway.
3 A. I'm sure I do not.
4 Q. Okay. Are there attendance records for
5 the smaller subgroup that talks about administrating
6 the CSS license?
7 A. No.
8 Q. And are you the MPAA person who
9 participates in that subcommittee meeting or --
10 A. Sometimes. Not always. Frequently we're
11 represented by outside counsel. In fact, always by
12 outside counsel. Sometimes I attend as well.
13 Q. And the outside counsel, is that the
14 Proskauer firm?
15 A. Yes.
16 MR. HERNSTADT: If this is convenient, I'd
17 like to take a three-minute break.
18 (Recessed at 11:41 a.m.)
19 (Reconvened at 11:48 a.m.)
20 BY MR. HERNSTADT:
21 Q. How did you first learn -- you,
22 Mr. Attaway, first learn of the existence of DeCSS?
23 A. As I recall, it was the subject of
24 conversation at one of the CPTWG meetings.
25 Q. And do you remember when that was?
36
1 A. As I recall, sometime in the fall of last
2 year.
3 Q. Were you the person from the MPAA that
4 notified the plaintiff members of the existence of
5 DeCSS?
6 A. No.
7 Q. And how were the plaintiffs advised of the
8 existence of DeCSS?
9 A. I couldn't tell you.
10 Q. Have you had any contact with the
11 plaintiffs about DeCSS in a non-privileged context?
12 MR. GOLD: Yes or no for this question.
13 A. In a non-privileged context, I would -- I
14 think no.
15 Q. Did you discuss DeCSS with plaintiffs
16 prior to the filing of the complaint in this action?
17 MR. GOLD: Well --
18 MR. HERNSTADT: And I guess that's a tough
19 question.
20 MR. GOLD: I don't find the difficulty in
21 that one. It's privileged. I think it's
22 privileged.
23 BY MR. HERNSTADT:
24 Q. I mean, your answer is that you have had
25 no non-privileged conversations with the plaintiffs
37
1 about DeCSS, which could also mean you've had no
2 conversations at all, but you've had no
3 conversations that you can testify about?
4 A. Yes, my answer would be no. Yes, I have
5 not had any non-privileged --
6 Q. All right, fine. Thank you.
7 MR. HERNSTADT: Off the record.
8 - - -
9 (Discussion off the record)
10 - - -
11 BY MR. HERNSTADT:
12 Q. It's fair to say that when you first
13 learned of DeCSS at the CPTWG meeting, it was your
14 understanding that the plaintiffs had also -- or the
15 plaintiffs already knew about the existence of
16 DeCSS?
17 A. Yes, by that time it was a subject that
18 was being discussed on the web, and people both
19 within MPAA and our member companies who paid
20 attention to discussions on the web about technology
21 issues had seen these reports. I don't know what
22 you'd call them.
23 Q. Postings?
24 A. Postings. Good word. Thank you.
25 Q. Sure. What people? When you say people
38
1 in the company had seen these postings, the
2 technology people, can you identify which people
3 you're talking about?
4
5 Confidential
6
7
8
9 Q. Okay.
10 A. I know I'm leaving somebody out, but I
11 can't think of who it is.
12 Q. You've got Warner's, Disney, Paramount,
13 Universal City?
14 Confidential
15
16 A. I believe so.
17 Q. And MGM?
18 A. MGM does not have a technical person
19 participate on a routine basis.
20 Q. And Tristar Columbia? Sony I guess?
21 A. Again, Sony generally doesn't have a
22 technical person.
23 Q. And Fox?
24 A. At that time I don't know if they had a
25 technical person participating.
39
1 Q. Does Sony have someone participating from
2 the consumer electronics end of their business?
3 A. At the CPTWG meetings?
4 Q. Yes.
5 A. Yes, several typically.
6 Q. I would imagine. And were there any MPAA
7 people, technical people that you spoke to? Not
8 necessarily at these meetings, but that you spoke to
9 at around the time that you learned of the existence
10 of DeCSS, about DeCSS?
11 MR. GOLD: That's a yes or a no answer.
12 A. Yes.
13 Q. And who were they?
14 A. It would have been Brad Hunt.
15 Confidential
16 DeCSS?
17 A. Not to my recollection.
18 Q. Do you know who she was?
19 A. Generally, yes.
20 Q. Other than presenting the annual estimated
21 losses due to piracy to the Commerce Department --
22 is that what you said?
23 A. U.S. trade representative.
24 Q. U.S. trade representative, thank you. --
25 do you have anything to do with anti-piracy efforts?
40
1 A. No.
2 Q. Are you familiar with a compression
3 utility called DivX?
4 A. No.
5 Q. Have you ever viewed --
6 (Interruption)
7 BY MR. HERNSTADT:
8 Q. Have you ever viewed a pirated DVD?
9 A. No.
10 Q. Have you ever viewed any pirated hard
11 good?
12 A. Hard good, I've seen pirated VHS movies,
13 yes.
14 Q. VHS, the video cassettes?
15 A. Right.
16 MR. HERNSTADT: Let's mark a couple of
17 exhibits if we can.
18 - - -
19 (Documents were marked as Deposition
20 Exhibit Numbers 34 through 36.)
21 - - -
22 BY MR. HERNSTADT:
23 Q. Can I ask you to take a look at
24 Defendants' Exhibit 34?
25 A. Okay.
41
1 Q. Can you identify this document?
2 A. This appears to be an excerpt from the
3 MPAA business plan. In fact, it says it was the
4 MPAA business plan for 1998.
5 Q. Do you know when that was -- that plan was
6 completed and distributed?
7 A. Typically they're distributed in the mid
8 to late winter every year.
9 Q. November -- October-November?
10 A. No. I'm sorry. February-March.
11 Q. Of the year for which it is -- in other
12 words, the 1998 business plan would have been
13 distributed typically --
14 A. February-March 1998.
15 Q. Okay. And who receives copies of the MPAA
16 business plan?
17 A. I don't know the entire list.
18 Q. Who would it have included?
19 A. It includes the member company Washington
20 representatives. I don't know who else it may
21 include.
22 Q. The member companies themselves in
23 addition to their Washington representative?
24 A. I am sure it's distributed in Los Angeles,
25 but I'm not familiar with the distribution list.
42
1 Q. Okay. And do you get it?
2 A. Yes.
3 Q. And do you write part of it?
4 A. Yes.
5 Q. Or do you write the whole thing?
6 A. Oh, no. I write the federal government
7 relations part.
8 Q. Okay. First question is do you know it's
9 redacted? And you'll note there's redactions in all
10 these documents.
11 A. Yes, I see that.
12 Q. Do you know what that stuff is?
13 A. No.
14 MR. HERNSTADT: I'll send you a letter on
15 this as well, but we've noticed there's redactions
16 on lots of documents, and we'd just like to get a
17 log setting forth the basis of the redaction and the
18 nature of the materials that were redacted.
19 BY MR. HERNSTADT:
20 Q. Okay. Turning to page 2 under digital
21 video --
22 A. Yes.
23 Q. At the end of the first paragraph where it
24 says "Developing a private licensing mechanism," is
25 that the licensing mechanism that we've discussed
43
1 earlier that is performed by the DVD CCA?
2 A. Yes, that's CSS.
3 Q. Okay. But that CSS is the encryption
4 system, correct?
5 A. Yes.
6 Q. And then there's a licensing mechanism of
7 the encryption system. My question is is the
8 licensing mechanism DVD CCA or is it something else?
9 A. DVD CCA is the administrator of the
10 licensing system.
11 Q. Then let me ask this question a different
12 way. What is the private licensing mechanism? I
13 don't understand what a licensing mechanism is.
14 MR. GOLD: I'm sorry. You're asking him
15 what a licensing mechanism is?
16 MR. HERNSTADT: Yes, in the context of
17 this business plan.
18 THE WITNESS: It is the licenses that were
19 initially administered by Matsushita and now may be
20 administered by DVD CCA that permit the
21 manufacturers of DVD playback equipment and the
22 distributors of motion pictures that use the CSS
23 encryption system to use that system, to encrypt and
24 decrypt.
25 BY MR. HERNSTADT:
44
1 Q. Okay. Is it fair to say that the
2 licensing mechanism is this two-part I guess
3 authorization that we discussed before where both
4 the DVD itself and the player must have
5 authorized -- or must be licensed to use CSS?
6 A. Yes.
7 Q. Thank you. Let's turn to the next
8 document, Defendants' Exhibit 35, which is the 1999
9 business plan. And again let's turn to page 3 this
10 time, which is digital video. At the bottom of the
11 second paragraph, I guess the last full sentence,
12 "Where the motion picture industry was engaged in
13 legal and legislative battles in the 1980s over the
14 issue of unauthorized video copying." Now, before I
15 ask you a question about that, did you write this
16 section of the 1999 business plan, the section
17 that's entitled "Federal Government Relations"?
18 A. I believe so.
19 Q. If you need to review more of it, just
20 tell me and you can do that. My question about the
21 phrase that I just read is what were those legal and
22 legislative battles in the '80s?
23 A. The legal battle was of course the Betamax
24 case, and the legislative battles involved our
25 attempt to -- not our attempt. Involved our support
45
1 of legislation that would have provided a royalty
2 levied on the sale of video recording equipment and
3 media that would be paid to copyright owners as
4 compensation for home copying.
5 Q. And what were the two sides in those
6 battles, or if there were more sides, what were the
7 various sides in that?
8 A. There were three sides. Essentially the
9 copyright community, which included MPAA, the
10 consumer electronics industry, which represented the
11 companies selling VCRs, and the video software
12 dealer industry.
13 Q. What's the video software dealer? Is that
14 like Blockbuster and --
15 A. Right, this was before Blockbuster, but
16 yes.
17 Q. And that's both the blank media and
18 recorded video cassettes?
19 A. Yes.
20 Q. Prerecorded video cassettes. And did the
21 Betamax case resolve those battles?
22 A. No. The Betamax case of course resolved
23 the issue of whether the manufacture and sale of
24 VCRs constituted contributory infringement. The
25 legislative battle went on. It was ultimately not
46
1 successful.
2 Q. In other words --
3 A. Congress chose not to enact legislation
4 providing for a royalty mechanism.
5 Q. During the course of the DMCA legislation,
6 am I correct in saying that the MPAA, that is, you
7 or Mr. Valenti, testified and otherwise publicly
8 took the position that the DMCA would have no impact
9 on the vitality of the Betamax case?
10 A. That is correct.
11 Q. Did you ever have conversations with third
12 parties about that statement?
13 A. Yes.
14 Q. Okay. And in the course of those
15 conversations, were you asked to explain what you
16 meant, Mr. Valenti meant, the MPAA meant by that
17 statement?
18 A. Yes.
19 Q. Okay. And what did you say to them?
20 A. Our explanation was basically the same as
21 I told you earlier, that with respect to fair use,
22 that the Betamax case involved material, the copying
23 of material that had been lawfully acquired. It did
24 not permit someone to throw a brick through a
25 Blockbuster window or tap into a cable.
47
1 Q. Is there any other format on which
2 copyrighted materials is distributed to the public
3 that were -- where access is controlled? And by
4 that I'm talking about cassettes -- audio cassettes,
5 video cassettes, DVDs, CDs, any other media you can
6 think of or format you can think of that I haven't
7 listed.
8 A. That is distributed in encrypted form?
9 Q. Uh-huh, or with an access control
10 technology.
11 A. Not that I can think of.
12 Q. So is it fair to say that DVDs are
13 different than any other format on which copyrighted
14 materials are distributed?
15 A. I think so.
16 Q. And is that a fair statement historically
17 going back to books, pamphlets, newspapers, anything
18 else? Is this essentially the first time in history
19 that -- or in the history of the United States to
20 your knowledge --
21 A. To my knowledge, yes.
22 Q. -- where there's an encryption or some
23 kind of an access control technology employed in the
24 distribution of copyrighted materials?
25 A. Yes.
48
1 Q. Going back to the sentence that I was
2 asking you about before, the second paragraph of
3 part 3, digital video, the second half of the
4 sentence says that the MPAA is now working with its
5 former adversaries to develop its legal and
6 technical tools to prohibit copying of highlighted
7 content in the 1990s. What are those tools?
8
9 Confidential
10
11
12 Q. Would the DMCA anti-circumvention
13 provisions -- strike that. Would the DMCA be an
14 example?
15 A. Of technical tools for --
16 Q. No. Legal and technical tools.
17 MR. GOLD: Would you read that question
18 back?
19 BY MR. HERNSTADT:
20 Q. Would the DMCA be an example of a legal
21 and technical tool?
22 A. It certainly was not -- I can tell you
23 that I wrote this sentence, and that is not what I
24 was contemplating, because when this was written,
25 the DMCA had already been enacted.
49
1 Q. Right.
2 A. So it would not have been something that
3 we were working to develop. I believe that the
4 legal tool referred to here was intended to refer to
5 the licensing system that went along with CSS.
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12 Q. We talked earlier about authorized access
13 and unauthorized access, and you described
14 authorized access as access on a DSS -- access to a
15 DSS equipped or licensed DVD via a CSS licensed DVD
16 player.
17 A. I think so, yes.
18 Q. Okay. If a consumer purchases a DVD and
19 -- purchases a licensed DVD, a legitimate DVD, and
20 purchases a licensed DVD player, then that consumer
21 has authorized access to the materials on the DVD;
22 is that correct?
23 A. That person is authorized to view the
24 material through a device that is licensed, yes.
25 Q. Okay. Does that person who has purchased
69
1 a legitimate DVD and a legitimate DVD player, can
2 that person have access to the copyrighted material
3 on the disk in order to make fair use of that?
4 A. No.
5 Q. In other words, in order to make
6 non-infringing use of that material.
7 A. Yes, the answer is no.
8 Q. Can you explain how that does not
9 constitute an impairment of traditional fair use
10 rights?
11 MR. GOLD: This witness is here as a fact
12 witness. He is not our designated legal expert. He
13 is not --
14 MR. HERNSTADT: I understand.
15 MR. GOLD: There is no such thing I think,
16 despite all of your affidavits from legal
17 practitioners about their views of the statute, I
18 don't think the judge is going to allow there to be
19 legal experts.
20 MR. HERNSTADT: I understand, and
21 actually, what I want to ask him about is statements
22 that he made.
23 MR. GOLD: I should say I hope that the
24 judge won't.
25 MR. HERNSTADT: Right. I didn't bother to
70
1 correct you, Leon. Leaving that to the judge.
2 MR. GOLD: Well, it needed correction. It
3 was my hope based on some knowledge.
4 MR. HERNSTADT: I understand that.
5 MR. GOLD: But if you're asking if he told
6 others, third parties something or he heard from
7 other third parties something about this, that's
8 okay.
9 MR. HERNSTADT: That's what I'm going to
10 ask him about.
11 MR. GOLD: I know that, and that's okay
12 with me, but hypotheticals and legal opinions seem
13 to be the --
14 MR. HERNSTADT: I understand, and that's
15 not what I -- that's not what I'm looking for. I'm
16 merely looking for him to explain statements that
17 were made to third parties.
18 MR. GOLD: There we go.
19 MR. HERNSTADT: Yes. Off the record.
20 (Discussion off the record)
21 BY MR. HERNSTADT:
22 Q. I'm going to ask the witness to take a
23 look at Exhibit 24, and I'll give it to the witness
24 so that he and Mr. Gold can look at it. I'll
25 describe it first. It's a letter dated June 30,
71
1 1998 to Ms. Terry Tang from Mr. Attaway. Ms. Tang
2 is the editorial writer of the New York Times. In
3 the letter he states in the first paragraph that
4 Jack Valenti asked me to send you the attached
5 material regarding the implementation of the WIPO.
6 A. W-I-P-O, yes.
7 Q. The WIPO treaty, and attached is a
8 chronology of the WIPO treaty and implementing
9 legislation as well as anti-circumvention and WIPO
10 treaty implementation, what appears to be frequently
11 asked questions.
12 A. Uh-huh.
13 Q. And I'm going to direct the witness -- you
14 can look at as much of this as you feel you need to.
15 I'm going to ask you about number 9 of the anti-
16 circumvention and WIPO treaty presentation, Bates
17 stamp page number M-7213. The question is will
18 enactment of Section 1201 cut back on the Fair Use
19 Doctrine.
20 A. Is there any indication of where this came
21 from?
22 Q. This was a document produced by the MPAA
23 to us, and this is the form it came to us in.
24 A. I'm trying to remember --
25 MR. GOLD: I thought you didn't get any
72
1 relevance documents? I've just been listening to
2 your statements in court, so where did you find this
3 relevant document?
4 MR. HERNSTADT: You have to listen to
5 Mr. Garbus very carefully. We haven't gotten any
6 documents.
7 MR. GOLD: I'm in full agreement with
8 that.
9 MR. HERNSTADT: -- at all from the
10 plaintiffs, let alone relevant documents.
11 MR. GOLD: So the fact that you got them
12 from the MPAA and they haven't got it reproduced
13 eight times --
14 MR. HERNSTADT: And of the 7,000 or so
15 pages from the MPAA, there were a couple of relevant
16 documents tucked in there. There was a lot of stuff
17 that was --
18 MR. GOLD: What are you going to do when
19 you find out we produced everything?
20 MR. HERNSTADT: That wouldn't surprise me.
21 I think that's what we're going to deal with
22 tomorrow in terms of privilege.
23 THE WITNESS: I hope I wrote this. It's
24 very good.
25 MR. GOLD: Let's go take a little look.
73
1 Where's the letter?
2 MR. HERNSTADT: That's the cover letter.
3 MR. GOLD: That's where we sent you the
4 attached material. And then you go on to say
5 something -- You don't remember writing this or you
6 don't remember who wrote it?
7 BY MR. HERNSTADT:
8 Q. I'll tell you what. I'll ask him about
9 that if you want. Mr. Attaway, do you know if that
10 is an MPAA document?
11 A. I do not know if anyone at MPAA authored
12 this document, but it is a document that we would
13 subscribe to in terms of the positions set forth in
14 it.
15 Q. Do you recall sending --
16 MR. GOLD: Mr. Attaway was referring to
17 the document annexed to his letter.
18 THE WITNESS: Thank you, yes.
19 BY MR. HERNSTADT:
20 Q. Do you recall sending the letter and the
21 attached -- annexed documents to Ms. Tang?
22 A. Yes, I do.
23 Q. Do you have any reason to believe that you
24 did not have these documents on hand and that you
25 attached them to the letter when you sent them?
74
1 A. Oh, I would imagine that was the case.
2 MR. GOLD: Have you had a chance to read
3 number 9?
4 THE WITNESS: I'm just finishing. Okay.
5 BY MR. HERNSTADT:
6 Q. I take it you don't recall whether you or
7 someone at the MPAA wrote that document?
8 A. That's correct.
9 Q. Does that accurately set forth the MPAA's
10 position with respect to fair use?
11 A. Yes.
12 Q. In Section 1201?
13 A. Yes.
14 Q. Turning to section 9 at Bates stamped page
15 7213, you describe the Fair Use Doctrine in the
16 second paragraph as giving researchers, teachers,
17 students, laboratory users and others a limited
18 privileged copy from works and exercise other
19 exclusive rights without permission of the copyright
20 owner.
21 MR. GOLD: I have a problem with the
22 question because you're saying that --
23 MR. HERNSTADT: I haven't asked a
24 question.
25 MR. GOLD: No, but in your -- was that an
75
1 introduction to a question?
2 MR. HERNSTADT: Yes.
3 MR. GOLD: Okay. I think -- I believe
4 what you said is that he wrote this.
5 MR. HERNSTADT: Okay. I apologize.
6 MR. GOLD: And I don't think that conforms
7 with the testimony.
8 BY MR. HERNSTADT:
9 Q. You're correct. You're correct, Mr. Gold.
10 Section 9 at the second paragraph sets forth what I
11 just read to you.
12 A. That's correct.
13 Q. Okay. And does that accurately describe
14 your understanding and the MPAA's understanding of
15 the Fair Use Doctrine?
16 A. I believe it says the same thing that I
17 told you this morning in answer to another question.
18 Q. I think -- substantially I think you're
19 correct. That's why I thought you wrote this. Is
20 it possible for a consumer to make such fair use
21 from copyrighted materials on a DVD?
22 MR. GOLD: I'm going to -- now, you want
23 his legal opinion as to whether it's possible --
24 MR. HERNSTADT: Possible --
25 MR. GOLD: -- to make use?
76
1 MR. HERNSTADT: -- is a factual use. Not
2 whether it's permissible, but whether it's possible.
3 Is it possible is a matter of fact.
4 MR. GOLD: I think it's clearly a legal
5 question that you're asking him, and he's not here
6 as a legal expert.
7 MR. HERNSTADT: I think that asking if it
8 is physically or technologically possible is a fact
9 question. Can it be done?
10 MR. GOLD: Can what be done?
11 MR. HERNSTADT: Can a consumer who has
12 purchased a DVD and plays it on a licensed DVD
13 player make fair use of copyrighted material?
14 MR. GOLD: I'm sorry. I apologize. I
15 didn't mean to interrupt you. Fair use is a legal
16 concept. If you want to know whether something is
17 fair use, you're asking him a legal question, and
18 he's not here as a legal expert.
19 MR. HERNSTADT: I understand it.
20 MR. GOLD: I just don't think it's proper.
21 I really don't.
22 MR. HERNSTADT: He has stated that that
23 second paragraph sets forth the MPAA understanding
24 of the Fair Use Doctrine. That was his testimony
25 two seconds ago -- two minutes ago.
77
1 MR. GOLD: And then he told you for the
2 second or third time yes.
3 MR. HERNSTADT: And my question is --
4 You're right. And that describes accessing the --
5 it says that the doctrine gives researchers,
6 teachers, students, laboratory users and others a
7 limited privilege to copy from works.
8 BY MR. HERNSTADT:
9 Q. I'll rephrase my question. Is it
10 technologically possible, technologically or
11 physically possible for a consumer to copy from
12 copyrighted works on a DVD?
13 A. No.
14 MR. GOLD: Can you read that question and
15 answer back?
16 THE REPORTER: "Question: Is it
17 technologically possible, technologically or
18 physically possible for a consumer to copy from a
19 copyrighted works on DVD?"
20 "Answer: No"
21 THE WITNESS: Having heard the question, I
22 should qualify that. Under the terms of the CSS
23 license. I mean, it is technically possible to
24 circumvent CSS, and through that make a copy, but
25 under the terms of the CSS license, it's not
78
1 possible. That's the whole point.
2 BY MR. HERNSTADT:
3 Q. Is the CSS license between consumers and
4 the DVD CCA or whoever it is that grants the
5 license?
6 A. No.
7 Q. Is it your understanding though that
8 consumers are somehow bound by that license?
9 MR. GOLD: Now wait a minute. I think
10 you're at it again.
11 MR. HERNSTADT: You know what? I'm going
12 to strike that.
13 MR. GOLD: Okay, sir.
14 MR. HERNSTADT: That's not an agreement
15 with you, but it's just -- I'll strike it.
16 MR. GOLD: All I said was okay, sir.
17 BY MR. HERNSTADT:
18 Q. Has the MPAA received any requests to
19 circumvent CSS?
20 A. Not that I know of.
21 Q. Is there a process or procedure that has
22 been established to deal with requests to circumvent
23 the CSS?
24 A. Not that I know of.
25 Q. Do you know Greg Goeckner?
79
1 A. Yes.
2 Q. And he's at MPAA?
3 A. Yes.
4 Q. What's his position?
5 A. He's in the office of general counsel in
6 Los Angeles. I don't recall his title, but he's an
7 attorney in the general counsel's office.
8 Q. And is he an officer of the MPAA?
9 A. I believe so, yes.
10 Q. I'll represent to you that he's on the web
11 site as an officer. If Mr. Goeckner told the
12 audience at an internet event conducted at Yale
13 University that in order to use material,
14 copyrighted material on a DVD, a person would have
15 to get a license from the copyright holder, is that
16 a fair statement of the MPAA policy?
17 MR. GOLD: I think that what you mean to
18 ask is does he know whether Mr. Goeckner made such
19 and such a statement.
20 MR. HERNSTADT: Actually, I don't mean to
21 say that because we've sort of gone around that from
22 another witness. We have an affidavit from Robin
23 Gross, who was present there, and we'll have an
24 opportunity to ask Mr. Goeckner if he actually made
25 that statement -- excuse me. Declaration, not
80
1 affidavit. At paragraph 6, it's an exhibit, sets
2 forth what she heard. I'm not asking Mr. Attaway if
3 he -- if he --
4 MR. GOLD: You're asking him for his legal
5 opinion as to whether, if Goeckner said it, that was
6 right?
7 MR. HERNSTADT: No. I'm asking whether
8 that statement, whether it was said or not, is a
9 fair statement of the MPAA's policy.
10 MR. GOLD: Of the MPAA's public policy?
11 MR. HERNSTADT: Yes.
12 MR. GOLD: Can I hear the question again?
13 MR. HERNSTADT: It's a little convoluted I
14 think.
15 THE REPORTER: "Question: If Mr. Goeckner
16 told the audience at an internet event conducted at
17 Yale University that in order to use material,
18 copyrighted material on a DVD, a person would have
19 to get a license from the copyright holder, is that
20 a fair statement of the MPAA policy?"
21 MR. GOLD: You might be able to make that
22 into a proper question if you try again and perhaps
23 to your knowledge, is it the policy of blah blah
24 blah. You've got to ask. It's the game. You've
25 got to ask.
81
1 BY MR. HERNSTADT:
2 Q. I'll adopt Mr. Gold's phraseology, if you
3 understand the question.
4 MR. GOLD: No, no, no. You've got to --
5 you don't have to do anything. I mean to suggest to
6 you.
7 BY MR. HERNSTADT:
8 Q. Yeah, I understand. If Mr. Attaway
9 understands the question as asking -- well, strike
10 that. Is it the MPAA's policy that in order to use
11 copyrighted materials on a DVD, an individual
12 seeking to make -- to use those materials must get a
13 license to do so from the copyright holder?
14 A. If your use -- if the term "use" that you
15 use is meant to refer to exercise of any of the
16 exclusive rights of copyright owners, my answer
17 would be yes, that a license is required in order to
18 exercise any of the exclusive rights of the
19 copyright owners with respect to material on a DVD.
20 Q. Okay. Is it the MPAA policy then that an
21 individual can take material from a DVD and make
22 non-infringing use of that material without getting
23 a license from the copyright holder?
24 A. If you're referring to the making of
25 copies --
82
1 Q. Non-infringing use as you understand that.
2 MR. GOLD: Do you understand the question?
3 Are you clear you understand what he means when he
4 uses --
5 MR. HERNSTADT: The question is in
6 response to Mr. Attaway's answer in which he very
7 carefully distinguished that it would be a person
8 making -- exercising one of the exclusive rights of
9 the copyright holder.
10 MR. GOLD: Which includes public
11 performance as well as the making of copies.
12 BY MR. HERNSTADT:
13 Q. Right, and my question was designed to
14 inquire about the nonexclusive rights of the
15 copyright holder, which I phrased as non-infringing.
16 If nonexclusive is clearer to you, then take that as
17 the question.
18 A. Well, again, only with respect to making
19 of copies. It would not be possible to make an
20 infringing or non-infringing use by means of copying
21 without circumventing CSS.
22 Q. Does that mean that the MPAA's policy is
23 that you need a license?
24 A. You would need a license to make copies,
25 yes.
83
1 Q. What if you didn't want to make a copy?
2 What if you wanted to use some fraction, some --
3 let's say 20-second portion of a movie on a DVD?
4 MR. GOLD: What's the question?
5 BY MR. HERNSTADT:
6 Q. Would you need a license to do that?
7 MR. GOLD: Now he's asking you, I gather,
8 whether MPAA has a public policy.
9 MR. HERNSTADT: If there's no policy --
10 MR. GOLD: If they really haven't
11 announced a public policy in a public place in a
12 public way, then the answer would seem to me to be
13 no. If they have, the answer would be yes.
14 THE WITNESS: We have no policies with
15 respect to this type of situation.
16 MR. GOLD: That seemed to me to be a whole
17 answer to the question.
18 BY MR. HERNSTADT:
19 Q. Me too. Is there a policy of the MPAA or
20 its members -- and by the way, my prior question was
21 also with respect to the MPAA members as far as you
22 know. Is your answer the same?
23 A. Yes.
24 Q. Okay. Is there a policy on the part of
25 the MPAA or its members requiring permission --
84
1 strike that last word -- requiring that a person
2 seeking access to the materials on a DVD obtain
3 permission to circumvent CSS?
4 MR. GOLD: Now this assumes again that
5 he's -- strike that. He's asking you whether there
6 is a public position --
7 MR. HERNSTADT: Yes.
8 MR. GOLD: -- the MPAA has taken on this
9 issue, this statement.
10 THE WITNESS: And the answer is no.
11 BY MR. HERNSTADT:
12 Q. Okay. There is no such policy, or there
13 is no policy at all?
14 A. There's no policy at all.
15 Q. The reason I asked that question the way I
16 asked it is this witness was produced, according to
17 your May 10th letter, to answer questions about
18 permission -- requests to circumvent.
19 MR. GOLD: Absolutely, as long as they
20 don't get into conversations he has with his client
21 as part of his job and deal only with statements
22 that are not made in terms of giving advice to his
23 own client. Absolutely. That's why I've allowed
24 him to answer those questions.
25 BY MR. HERNSTADT:
85
1 Q. Okay. Are you the person that a request
2 for permission to circumvent would go to?
3 A. No. There is no person.
4 Q. Okay. If a consumer in Los Angeles wants
5 to -- an individual in Los Angeles wants to get 20
6 seconds of a portion of the material on The Matrix
7 that's not available on VHS that's unique to the DVD
8 and wrote the MPAA asking for permission to
9 circumvent CSS in order to get that 20 seconds of
10 material, would that request go to you?
11 A. No.
12 Q. Who would handle that request?
13 A. I don't know. I don't know that that
14 circumstance has ever arisen.
15 MR. HERNSTADT: Okay. Mr. Gold, I would
16 request, given the fact that this witness was
17 produced as someone with knowledge of requests to
18 circumvent CSS, that you ask the MPAA and your
19 clients if anyone has ever asked -- anyone has ever
20 made such a request, and if so, to whom that request
21 was made.
22 MR. GOLD: In the time honored position --
23 MR. HERNSTADT: -- are taken under
24 advisement, okay. Then let me ask you to take one
25 other thing under advisement, which is if any one of
86
1 the plaintiffs has a policy in place with respect to
2 requests to circumvent or requests for permission to
3 circumvent the CSS and get at some portion of the
4 material on a DVD.
5 MR. GOLD: Do you know if anyone who deals
6 with the internet has ever made that?
7 MR. HERNSTADT: I don't know. I'm --
8 MR. GOLD: I thought that might be.
9 MR. HERNSTADT: No, I don't have any
10 knowledge of that. If I did, I would have pulled
11 out a piece of paper and handed it to him, but no.
12 I was basing this on the May 10th letter.
13 MR. GOLD: I was just wondering if you
14 knew of any takers that had the courtesy to ask.
15 MR. HERNSTADT: No, absolutely, and the
16 answer is I don't know.
17 THE WITNESS: Should I know what the May
18 10 letter is?
19 MR. HERNSTADT: That's up to Mr. Gold.
20 MR. GOLD: The May 10 letter.
21 MR. HERNSTADT: That's the letter that you
22 sent saying what Mr. Attaway was being produced --
23 designated and produced to testify about, or about
24 which.
25 MR. GOLD: I don't know the date of it. I
87
1 know about the designation letter. I have it here.
2 BY MR. HERNSTADT:
3 Q. In the course of your governmental
4 relation activities, have you ever talked to any
5 non-party, any third party, any non-MPAA person or
6 non-plaintiff person about the relationship between
7 1201(a)(1) and 1201(a)(2)?
8 A. Yes.
9 Q. And in the course of those discussions --
10 strike that. What's been the nature of those
11 discussions?
12 MR. GOLD: What did he say?
13 BY MR. HERNSTADT:
14 Q. What did you say to them, what did they
15 say to you?
16 A. I certainly can't remember word for word
17 conversations.
18 Q. In sum and substance.
19 A. During the course of the debate over the
20 DMCA, there were frequent discussions over the
21 prohibition on -- the prohibition of the act of
22 gaining access and the prohibition on trafficking in
23 devices that circumvent for purposes of gaining
24 access. And the distinction between those two
25 situations is that we were both concerned about
88
1 preventing people from acting to gain unauthorized
2 access and equally concerned if not more concerned
3 with people who trafficked in devices permitting
4 circumvention, because the act of circumvention at
5 least as far as we're concerned -- and this doesn't
6 apply to the same extent to the computer software
7 industry, which is also an ardent supporter of this
8 legislation, but as far as we're concerned, the acts
9 of circumvention that we would contemplate would
10 frequently take place in the home, where detection
11 is not possible.
12 So we were very much focused on preventing
13 the trafficking and circumvention devices that would
14 allow people to go into the privacy of their homes
15 and circumvent. That we felt was the only truly
16 effective way to protect the integrity of
17 technological devices to restrict access.
18 Q. Okay. As of today, it's not illegal for
19 an individual to use DeCSS to circumvent CSS and
20 gain access to the materials on a DVD?
21 MR. GOLD: Why is that not asking him for
22 a legal opinion? I mean, it sounds like you're
23 asking him for a legal opinion, and why is that
24 appropriate?
25 MR. HERNSTADT: If that concerns you, I'll
89
1 strike the question and I'll ask it a different way.
2 MR. GOLD: Okay.
3 BY MR. HERNSTADT:
4 Q. As of today, Section 1201(a)(1), which is
5 the section preventing individuals from
6 circumventing, is not -- has not been enacted into
7 law, or it is enacted, but it is suspended until
8 October of this year; is that correct?
9 A. It goes into effect --
10 Q. Thank you.
11 A. I believe the date is October 4th, 2000.
12 Q. Okay. So that prohibition has not yet
13 taken effect; is that correct?
14 A. That's correct.
15 Q. And there currently is a rule-making
16 procedure going on with respect to the exemptions
17 and the categories of exempted materials covered by
18 1201(a)(1); is that correct?
19 A. Yes.
20 Q. And you recently -- let me show you
21 something.
22 MR. HERNSTADT: Can we mark that?
23 (A document was marked as Defendants'
24 Exhibit Number 37.)
25 BY MR. HERNSTADT:
90
1 Q. I've handed the witness Defendants'
2 Exhibit 37, which is a letter from Mr. Attaway to
3 Robert Kasunic, the senior attorney to the office of
4 the general counsel of the U.S. Copyright Office.
5 The letter is dated April 14, 2000, and my question
6 is did you -- and this is a letter requesting to
7 testify on behalf of the Motion Picture Association
8 at the May 19th hearings in Palo Alto. What
9 hearings were those?
10 A. Those hearings were conducted by the
11 copyright office in connection with its
12 determination as required by the DMCA as to whether
13 the exercise -- or the implementation of 1201(a)(1)
14 would substantially impair the exercise of fair use.
15 Q. Okay. And did you in fact go -- did you
16 in fact testify?
17 A. I did not. Also let me take this
18 opportunity to correct the record that the effective
19 date of 1201(a)(1) according to my letter here is
20 not October 4th, but October 28.
21 Q. Thank you. I wouldn't have held it
22 against you anyway. Did anyone from the MPAA
23 testify?
24 A. No one from MPAA testified. Dean Marks,
25 who is an attorney for Time Warner, testified on our
91
1 behalf.
2 Q. And did he -- have you reviewed his
3 testimony?
4 A. I have.
5 Q. Is there a transcript of his testimony?
6 A. I saw a transcript of it, yes.
7 Q. Does it contain anything other than or in
8 addition to that which is set forth -- or that which
9 is attached to your letter which is the summary of
10 intended testimony of Fritz Attaway?
11 A. I honestly don't recall. I don't
12 remember.
13 MR. HERNSTADT: I would request the
14 production of the transcript of that testimony.
15 MR. GOLD: It's not public? Is it public?
16 MR. HERNSTADT: I believe so. I think
17 everything about that proceeding is public. The
18 transcript of Mr. Marks, Dean Marks at the Palo Alto
19 hearing -- that was a public hearing.
20 MR. GOLD: I'm just wondering why you
21 can't go and get it.
22 BY MR. HERNSTADT:
23 Q. Do you have it?
24 A. I don't know if I have a copy or not. I
25 may have just read it off the Copyright Office web
92
1 site.
2 MR. GOLD: I don't have a problem with
3 going and fetching this for you, but generally
4 speaking --
5 MR. HERNSTADT: Okay.
6 MR. GOLD: -- one needs to fetch these
7 available things himself.
8 MR. HERNSTADT: Sure.
9 MR. GOLD: But I'll do this one just as a
10 matter of good will.
11 BY MR. HERNSTADT:
12 Q. I appreciate that, but I'll tell you that
13 if Mr. Attaway doesn't have a copy, then I'll find
14 it myself. If he has a copy, then it hopefully
15 would be very simple just to send that on to us.
16 A. Okay.
17 Q. Thank you. During the course of
18 discussions with third parties as we've used that
19 term before regarding the relationship between
20 1201(a)(1) and 1201(a)(2), did you ever discuss how
21 a person could exercise fair use rights under
22 1201(a)(1) without getting ahold of some kind of
23 device or utility that would allow them to
24 circumvent in the case of DVD CSS without violating
25 1201(a)(2)?
93
1 A. Yes.
2 Q. What was the sum and substance of those
3 discussions?
4 A. That someone could develop some kind of
5 technique or device that is not marketed or
6 trafficked in, but only used by that person to
7 circumvent, and conceivably that could happen.
8 Q. Is it the MPAA's position that there are
9 no exemptions or exceptions to the non-proliferation
10 provisions of 1201(a)(2)?
11 A. Yes.
12 Q. I'd like to show you -- I think I've
13 already given you this. This is what we've marked
14 as Defendants' Exhibit 36. That's the 2000 MPAA
15 business plan.
16 A. Yes, I have it.
17 Q. This is Asia Pacific on page 1, Hong Kong
18 on page 2, Korea on page 3. Is this a portion of
19 the business plan that you had anything to do with
20 it?
21 A. No.
22 Q. Have you reviewed this ever?
23 A. No.
24 Q. It says on each page of this three-page
25 document, or excerpt of the 2000 MPAA business plan,
94
1 it refers to anti-piracy. Is Ken Jacobson the
2 appropriate person to speak to about this?
3 A. He is probably -- if he is not
4 knowledgeable about the material in this part of the
5 business plan, he certainly should know who is.
6 MR. HERNSTADT: Okay. Mr. Gold, I'd note
7 for the record that this was produced to us after we
8 didn't complete, but after the second day of
9 Mr. Jacobson, so we did not have it on hand when
10 we -- when we deposed him. And additionally, I
11 would just mention that we have asked -- during the
12 course of Mr. Jacobson's deposition, we asked for
13 the production of materials, some of which I asked
14 for here as well, regarding anti-piracy efforts and
15 losses and documents like that, which have not been
16 produced, but we also haven't gotten any response to
17 those requests for production. I think that you and
18 I can have a conversation at another time about
19 whether we need Mr. Jacobson again for some period
20 of time or whether we can come up with some other
21 way of doing it, but --
22 MR. GOLD: You're referring now to the
23 non-redacted portions of this?
24 MR. HERNSTADT: Right.
25 MR. GOLD: Yeah, we should have that
95
1 discussion and see what happens with it, yeah. As a
2 matter of fact, I don't know how fast you need to
3 run out. There might be some discussion about that.
4 MR. HERNSTADT: Do you want to do it on
5 the record?
6 MR. GOLD: No.
7 (Discussion off the record)
8 MR. HERNSTADT: Why don't I mark my
9 remaining documents, which we should get through
10 faster than the prior ones I hope, and there's seven
11 of them.
12 (Documents were marked as Defendants'
13 Exhibits Numbers 38 through 43.)
14 BY MR. HERNSTADT:
15 Q. Before we start looking at Exhibit 38,
16 just for the record, my failure to renew the request
17 on the redactions is simply because I think the one
18 request is sufficient for all the documents that we
19 marked redacted. Do you recognize Defendants'
20 Exhibit 38?
21 A. Yes.
22 MR. GOLD: Which one is that?
23 MR. HERNSTADT: The top one. Leon, do you
24 need a minute to take a look at it?
25 MR. GOLD: No.
96
1 BY MR. HERNSTADT:
2 Q. And can you tell me what that is?
3 A. This is a submission by a number of
4 computer consumer electronics and content groups in
5 the Copyright Office's 1201(a)(1) proceeding.
6 Q. Okay. And did you have anything to do
7 with the preparation of this document?
8 A. I reviewed --
9 Q. By the way, by this document, I mean the
10 two-page letter that is attached.
11 A. Yes.
12 Q. Thank you.
13 A. I reviewed an initial draft, yes.
14 Q. Did you contribute to it in any way?
15 A. I may have contributed some minor edits,
16 yes.
17 Q. I think Mr. Valenti said yesterday that
18 this is MPAA's position -- well, let me ask you
19 that. Does this reflect the MPAA's position --
20 A. Yes.
21 Q. -- about the matters to which it refers?
22 Did you talk to John Hoy about -- strike that. Do
23 you know who John Hoy is?
24 A. Yes, I do.
25 Q. And do you speak with Mr. Hoy?
97
1 A. Not frequently. I see him at CPTWG
2 meetings.
3 Q. Is there a web site about the CPTWG?
4 A. Yes.
5 Q. And does the web site have the attendance
6 lists of the people who go to the meetings?
7 A. It may. I don't know, but it may.
8 Q. Do you know the web site address?
9 A. I'm sorry, I don't.
10 Q. I'll try and find it myself. I would
11 request that if it's something that you could find
12 easily, that it be provided to me. I should be able
13 to find it.
14 MR. GOLD: I'm sorry. Did I miss
15 something?
16 MR. HERNSTADT: I made a request. I'm
17 going to try to find it, but if it's something that
18 you guys have on hand --
19 MR. GOLD: Give us a buzz if you can't.
20 BY MR. HERNSTADT:
21 Q. Okay. Would the MPAA members, to your
22 knowledge, have released movies on DVD without the
23 presence of CSS or some type of encryption scheme to
24 protect the movies on the disk?
25 A. It is my belief that they would not have,
98
1 yes.
2 Q. Did any one of the MPAA members ever tell
3 you that they wouldn't release movies without
4 encryption --
5 A. No.
6 Q. -- on DVD?
7 A. No.
8 Q. Why is that your belief?
9 A. Because the release of high-valued content
10 as motion pictures in a digital format, which would
11 allow the unlimited duplication both from originals
12 and copies of copies of copies as well as, at least
13 in the future, internet retransmission and
14 distribution, would be unthinkable.
15 Q. Have you ever had a conversation to that
16 effect with any of the members of the MPAA?
17 MR. GOLD: In a non-privileged context, I
18 assume you mean?
19 BY MR. HERNSTADT:
20 Q. I mean in a non-privileged context, yes.
21 A. In a general sense, yes. I have never
22 discussed the particular release decisions with
23 respect to any particular motion picture.
24 Q. Okay. Can you be more specific in terms
25 of in a general sense? What did you say to a
99
1 member -- employee of a member, what did they say to
2 you about this particular topic in a non-privileged
3 context?
4 A. Well, I think that -- I can't remember
5 exact conversations, but I think that the general
6 implicit and explicit understanding of everyone
7 involved in the release of DVD software as well as
8 hardware was that content would not be made
9 available unless it was protected.
10 Q. Okay. Is there any document that sets
11 forth that understanding? I guess if it's implicit,
12 it wouldn't be written down, but to the extent it
13 was explicit.
14 A. I think the letter that we're discussing
15 sets forth that.
16 Q. I mean back in 1996 or '97 when -- you
17 know, when DVDs and CSS were being developed.
18 A. I'm not aware of any particular document,
19 but that basic premise was certainly discussed when
20 we were discussing the possibility of legislation
21 that would address digital copying. That would have
22 been in 1994, 5, 6, that time period.
23 Q. To your knowledge, did any member of the
24 MPAA, any one of the plaintiffs publicly state that
25 they would not release movies on DVDs unless there
100
1 was some type of encryption scheme to protect the
2 movies?
3 A. I'm not aware of such a statement.
4 Q. Do you know if any member of the MPAA made
5 a statement to that effect to the MPAA in a
6 non-privileged context?
7 A. Not that I'm aware of.
8 Q. You said earlier that one of the concerns
9 that is the basis of your belief that MPAA members
10 would not release a movie on a DVD format unless it
11 was protected by CSS or something like that is the
12 danger, and I believe -- I don't want to put words
13 into your mouth, but I believe you said something to
14 the effect of the danger in the future of
15 transmission of the movies on the internet?
16 A. That was a consideration, yes.
17 Q. Can you describe to me what that danger
18 is?
19 A. Well, I think it can be -- it is best
20 illustrated by what is happening to sound recordings
21 on the internet today. Our concern is that the same
22 thing could happen to motion picture, audiovisual
23 material that is made available in the clear in
24 digital form.
25 Q. I know you're not a technical expert and I
101
1 don't want to ask you about technical questions.
2 With that caveat, when will that be a problem for
3 motion pictures?
4 A. According to today's Washington Post, it
5 is a problem today.
6 Q. Okay. You mentioned that article before,
7 and I haven't seen it yet. How is it a problem?
8 Did that article discuss DivX?
9 A. No, not that I recall, but it did make
10 reference to the fact that recently released motion
11 pictures, including I think it mentioned Mission
12 Impossible II, are currently available on the
13 internet.
14 Q. Okay, but that's a different problem,
15 right? I'm talking about motion pictures being
16 taken off of DVDs and sent on the internet. Mission
17 Impossible II is clearly not released on DVDs yet,
18 correct?
19 A. Correct.
20 Q. So however that got on the internet, it
21 wasn't because it was taken off a DVD?
22 A. Presumably, yes.
23 Q. So that's a different problem?
24 A. Same problem. The source of the material
25 is irrelevant.
102
1 Q. Different source.
2 A. The problem is having the material on the
3 internet.
4 Q. Right.
5 MR. GOLD: You concede.
6 MR. HERNSTADT: No, no. Off the record.
7 (Discussion off the record)
8 BY MR. HERNSTADT:
9 Q. Do you know anything about -- strike that.
10 Let's move on to the next document. Number 39.
11 MR. GOLD: This is Pearl Harbor Day here?
12 MR. HERNSTADT: This is Pearl Harbor Day.
13 I noted and thought it was appropriate.
14 MR. GOLD: I haven't read it yet. It just
15 says December 7th, so I didn't mean anything by
16 that.
17 BY MR. HERNSTADT:
18 Q. This is a letter dated December 7th, 1998
19 from Mr. Attaway to Shira Perlmutter of the Office
20 of Policy and International Affairs, and it's about
21 distance education through digital distance
22 learning, and my question is -- if you need to
23 review this, please let me know when you're done.
24 A. Okay. I think --
25 Q. Did you write this letter?
103
1 A. Yes.
2 Q. Okay. Is it the MPAA policy that
3 limitations can be placed on the right of copyright
4 holders for purposes of digital distance learning?
5 A. It's a hard question to answer.
6 MR. GOLD: Can you read the question back
7 please?
8 MR. HERNSTADT: Is there a policy?
9 MR. GOLD: Just read it back, not because
10 I have any objection to it.
11 MR. HERNSTADT: No. You just want to hear
12 it. Fair enough.
13 THE REPORTER: "Question: Is it the MPAA
14 policy that limitations can be placed on the right
15 of copyright holders for purposes of digital
16 distance learning?"
17 THE WITNESS: MPAA has no policy in that
18 regard.
19 BY MR. HERNSTADT:
20 Q. Have you had discussions with anybody in
21 the course of your job duties? And by anybody, I
22 mean --
23 A. Outside, I understand.
24 Q. -- outside people regarding that issue.
25 A. Distance learning, yes.
104
1 Q. And the limitations on copyright holders'
2 rights in the context of distance learning?
3 A. Yes.
4 Q. And have those conversations dealt with
5 circumvention?
6 A. No, not that I recall. Those
7 conversations dealt with whether the copyright law
8 should be amended to provide greater limitations on
9 the exercise of exclusive rights by copyright owners
10 in order to facilitate distance learning.
11 Q. Okay. Did these discussions include a
12 discussion of fair use in the context of digital
13 distance learning?
14 A. Not of fair use as such.
15 Q. What are the limitations you use on the
16 copyright holder's rights?
17 A. Limitations that would permit educational
18 institutions to engage in distance learning
19 activities that would involve the making available
20 and display of copyrighted material without specific
21 licenses. It would be a limitation on the rights of
22 copyright owners, which fair use is, but it wouldn't
23 be a fair use. It would be an amendment to Section
24 110 of the Copyright Act.
25 Q. It would be a specific statutory
105
1 limitation?
2 A. Correct.
3 Q. Would I be correct in saying that for
4 example, someone could take a 45 -- the idea is that
5 it would be permissible to take a 45-second excerpt
6 of Twelve Angry Men, for example, and use that as
7 part of a course on, you know, jury trials and jury
8 deliberations?
9 A. Yes, so long as the copy of Twelve Angry
10 Men was legally acquired.
11 Q. And what does that mean?
12 A. It means that we, in the context of
13 discussing the distance learning, we have discussed
14 whether libraries should be permitted to acquire
15 copies of copyrighted material and use them in whole
16 or in part in distance learning activities.
17 Q. So when you say legally acquired, you
18 don't mean the distance learning group, for lack of
19 a better word, but the entity that is --
20 A. Colleges and universities.
21 Q. Right, colleges and universities engaging
22 in on-line digital distance learning purchase the
23 copyrighted work. Off the record.
24 (Discussion off the record)
25 BY MR. HERNSTADT:
106
1 Q. What does legally purchased mean in this
2 context?
3 A. Legally acquired?
4 Q. Legally acquired.
5 A. It could be purchased, it could be rented,
6 could be -- those are the two possibilities I can
7 think of.
8 Q. So my question then is if the digital
9 distance learning entity, university, college,
10 whatever it is, buys a copy of Twelve Angry Men and
11 they take 30, 45 seconds as part of a course on jury
12 trials that is being offered by the digital distance
13 learning entity, is that an example of the
14 discussion -- of the type of situation you're
15 discussing?
16 A. Yes, in the context of the Copyright Act.
17 Q. Right. Have you had conversations about
18 that subject in the context of the -- of Chapter 12
19 of the Copyright Act?
20 A. No.
21 Q. Are you distinguishing Section 12 of the
22 Copyright Act from --
23 A. Yes.
24 Q. The Digital Millennium Copyright Act is
25 part of the Copyright Act, is it not?
107
1 A. That is a technical term. Physically it
2 is published with the Copyright Act; however, in the
3 minds of copyright practitioners, including myself,
4 it is not part of the Copyright Act.
5 Q. In other words, grist for the mill, keep
6 us people in business. Have you ever discussed in
7 the context of the digital distance learning use a
8 limitation on copyright holders' exclusive rights,
9 have you ever discussed circumvention of CSS in
10 order to get at copyrighted materials on a DVD?
11 MR. GOLD: Discussed in a public manner?
12 BY MR. HERNSTADT:
13 Q. In the way we've been using it.
14 A. It may have come up during the debate over
15 DMCA. I do not believe it is an issue in the
16 current discussion about distance learning.
17 Q. Have you ever discussed using DVD
18 materials in a distance learning context?
19 A. Again, we probably did during the DMCA
20 debate. I don't believe it's an issue today.
21 Q. And why is that?
22 A. Because I think the type of material that
23 educators are concerned about using in distance
24 learning applications do not involve recent motion
25 pictures that would only be available on DVDs.
108
1 Q. Is that your personal belief or is that a
2 belief based on discussions you've had?
3 A. That is a belief based on my experience,
4 my knowledge.
5 Q. Okay. Does that mean that it's not based
6 on discussions you've had with other people? I
7 mean, specific discussions --
8 A. Or lack of discussions I've had with other
9 people about this.
10 Q. Very good. Thank you. Let's move on to
11 the next exhibit, 40, which is a letter dated
12 February 19th, 1999 from Mr. Attaway to Mr. Pate
13 Felts and Ms. Tamara Underwood at the Trade Advisory
14 Center at the Department of Commerce, and that
15 covers a memorandum prepared by the International
16 Intellectual Property Alliance, which represents the
17 MPAA and other U.S. copyright industries, and that
18 memorandum is dated February 19, 1999. Do you
19 recognize this letter, or did you send this letter?
20 A. Yes.
21 Q. Do you recognize the memorandum attached
22 to the letter?
23 A. I must admit that I don't have a clear
24 recollection of this memorandum, but I don't deny
25 that it was submitted along with my letter.
109
1 Q. Okay. What is the IIPA?
2 A. It is the International Intellectual
3 Property Alliance, which consists of trade
4 associations representing the major U.S. copyright
5 industries, including motion pictures, sound
6 recordings, publishing and computer software.
7 Q. I'm sorry. You said it represents them?
8 A. It represents trade associations
9 representing those industries.
10 Q. And represent them in what context?
11 A. In the context of promoting intellectual
12 property protection, particularly abroad. Its
13 primary focus is offshore rather than domestic.
14 Q. Does it engage in anti-piracy efforts?
15 A. Enforcement efforts?
16 Q. Yes.
17 A. No.
18 Q. What efforts does it engage in?
19 A. It engages in efforts to persuade foreign
20 governments to enact strong copyright laws and
21 enforce them.
22 Q. Do you know if it compiles statistics
23 about piracy, international piracy?
24 A. Yes.
25 Q. Do you get the documents that the IIPA
110
1 puts out --
2 A. Yes.
3 Q. -- in that context? Turning to the third
4 paragraph, and this is a simple yes or no question
5 to start with. Midway through that paragraph it
6 says the growth of broad-band networks coupled
7 with --
8 A. Uh-huh.
9 Q. That sentence from, "The growth rate"
10 through to "guarantee," do you have any personal
11 knowledge of that, of the issues set forth in that
12 sentence? Is that something that the IIPA --
13 MR. GOLD: Which sentence?
14 MR. HERNSTADT: It says, "The growth of
15 broad-band networks."
16 MR. GOLD: Which page?
17 MR. HERNSTADT: At M-7142. Third
18 paragraph down, second to last sentence in that
19 paragraph.
20 THE WITNESS: The question again?
21 BY MR. HERNSTADT:
22 Q. Are you the appropriate person to ask
23 about the statements contained in that sentence?
24 A. Yes.
25 Q. Okay. Why is massive piracy almost a
111
1 guaranty?
2 A. That is our view of the world as it exists
3 in this technological age.
4 Q. Okay. When will this happen? When will
5 there be a sufficiently extensive broad-band network
6 coupled with high rates of compression sufficient to
7 permit massive piracy?
8 A. Today.
9 Q. Today?
10 A. Today.
11 Q. Do you know of massive piracy today?
12 A. Yes.
13 Q. On line?
14 A. Yes.
15 Q. Tell me about it.
16 A. MP3.
17 Q. I'm talking about motion pictures. This
18 sentence says motion picture works. I'm sorry.
19 Maybe I wasn't clear enough.
20 A. It does. I'm sorry.
21 Q. I'm not talking about MP3.
22 A. Today, no.
23 Q. Okay. When do you, the MPAA, anticipate
24 that those two requirements, the growth of
25 broad-band networks and higher compression networks,
112
1 will be achieved to the extent where massive piracy
2 will be --
3 A. I'm not aware that anyone has a timetable
4 for this to occur, but it is certainly our belief
5 that it will occur and it will occur sooner rather
6 than later, and articles such as appeared in
7 Newsweek last week and appeared in The Washington
8 Post today seem to confirm that our view of the
9 world is shared by a lot of other people.
10 Q. The Newsweek article was almost entirely
11 about audio.
12 A. About Nabster.
13 Q. About Nabster. It referenced something
14 called Wrapster but it gave absolutely no details
15 about it, correct?
16 MR. GOLD: Do you want to mark it and put
17 it in the record or something like that?
18 MR. HERNSTADT: No. I'm asking about his
19 recollection.
20 MR. GOLD: Are you having a debate about
21 what the article said?
22 MR. HERNSTADT: I'm asking him about his
23 recollection of what the article said.
24 MR. GOLD: Let's move on. You've got the
25 article and you know what it says.
113
1 MR. HERNSTADT: The reason I'm asking
2 about it is because he's made a statement about it,
3 and I'm entitled to explore that.
4 MR. GOLD: He's made a statement that he
5 read the article.
6 MR. HERNSTADT: And that he thinks that
7 that article is emblematic of what most of the world
8 thinks about the emergence of a massive piracy of
9 motion pictures sooner rather than later, and I was
10 pointing out that that article was essentially about
11 Nabster and about audio and not about motion
12 pictures, and I think Mr. Attaway agreed with me.
13 MR. GOLD: Well, I'm glad to hear your
14 view. Can we get back to asking questions that are
15 relevant?
16 BY MR. HERNSTADT:
17 Q. Sure. In a year?
18 MR. GOLD: Wait a minute, wait a minute.
19 That's not a question.
20 BY MR. HERNSTADT:
21 Q. Will it happen in a year?
22 MR. GOLD: Will what happen in a year?
23 MR. HERNSTADT: What we just discussed.
24 THE WITNESS: I don't know. I don't know
25 what the timetable is.
114
1 BY MR. HERNSTADT:
2 Q. Have you had any discussions with any
3 third parties about when massive piracy will be --
4 A. A specific date, no.
5 Q. Not a specific date. A general number of
6 years, number of months, general time frame?
7 MR. GOLD: A number of days or hours also,
8 in your question?
9 MR. HERNSTADT: Of course, if that's
10 within the scope of your answer.
11 THE WITNESS: I've had discussions where
12 I've expressed the view, which I believe is the
13 industry's view, that this will happen in a
14 relatively short time frame. We have not been more
15 specific than that.
16 BY MR. HERNSTADT:
17 Q. Has anyone expressed to you a more
18 specific view than that?
19 A. No.
20 Q. What is the industry doing between now and
21 that day when massive piracy -- it's technologically
22 possible to prevent it?
23 A. We are and have tried to establish both a
24 technological and legal framework that will permit
25 content owners to prevent the unauthorized use of
115
1 their material.
2 Q. Okay. Don't tell me about the legal
3 framework. What's the technological framework?
4 A. Technological framework would be
5
6 Confidential
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
116
1 Confidential
2
3
4
5
6
7
8
9
10
11 BY MR. HERNSTADT:
12 Q. Okay. Do you know -- you've been with the
13 MPAA 24 years. Do you know if the MPAA said in the
14 early '80s with the advent of videotape and VCRs
15 that led to the Betamax case that the movie industry
16 would be destroyed by video, video cassettes and
17 copying of video cassettes?
18 A. I don't believe anyone at MPAA ever made
19 that statement.
20 Q. Do you know if the MPAA members made that
21 statement?
22 A. Not that I know of.
23 Q. Do you know of any study or report that
24 sets forth estimates of the levels of piracy that
25 would be possible on the internet?
117
1 A. No.
2 Q. Do you know of any reports or studies or
3 any other document -- my first question, let's say
4 any other document?
5 A. No.
6 Q. Do you know of any document including but
7 not limited to reports and/or studies that compares
8 existing piracy with anticipated piracy on the
9 internet?
10 A. No.
11 Q. Do you know of any documents including
12 reports and/or studies that compares piracy of DVDs
13 and piracy on the internet?
14 A. No. If you're speaking of empirical or
15 reports or studies based on empirical evidence, no.
16 Q. I'm also speaking on reports and studies
17 based on deductions from existing technology and
18 existing use of the internet and/or piracy.
19 A. I'm aware of statements to the effect that
20 the problem of piracy will be much worse in a
21 digital environment because of the attributes of
22 digital technology than it is in the analogue
23 environment.
24 Q. And who's made those statements that
25 you're aware of?
118
1 A. The Washington Post, Jack Valenti. I
2 mean, just --
3 MR. GOLD: Wait, wait, wait, wait, wait.
4 BY MR. HERNSTADT:
5 Q. Are you done?
6 A. Yes, I'm done. Sorry.
7 Q. And I'm sorry if I interrupted you. Are
8 you aware of the basis for those statements?
9 A. Yes.
10 Q. Okay. And are those statements based on
11 any document that you're aware of?
12 A. No.
13 Q. Are those statements based on the opinion
14 and experience of the persons making the statement?
15 A. Yes.
16 Q. Okay. Turning to Bates stamp number 7145,
17 it's a couple pages into that document. Do you
18 know --
19 A. I'm sorry.
20 Q. Keep going. One more page. The Bates
21 stamp number, it's a production number on the bottom
22 right-hand corner of the page.
23 A. Oh, okay.
24 MR. GOLD: What is it?
25 BY MR. HERNSTADT:
119
1 Q. 7145. It's in that same document. Not a
2 different document. Same exhibit. I'm sorry.
3 Forty, a couple pages along. Was this attached to
4 the letter that you sent to Mr. Felts?
5 A. Not that I recall.
6 Q. Okay. Do you know what this is?
7 A. I don't recall ever seeing it before.
8 MR. HERNSTADT: Okay. I would simply
9 request, Mr. Gold, if you could -- this was produced
10 as a single stapled document to us, and it obviously
11 was a mistake I think, and I would point out that
12 it's pages 2, 3 and 4 of a fax from something called
13 New Technology, and it's on DVD Microsoft operating
14 systems, and I would request the first page of the
15 fax and also for you to tell me if this is in fact a
16 separate document. Based on what Mr. Attaway says,
17 it seems that it must be, but --
18 THE WITNESS: It appears that the
19 memorandum from the International Intellectual
20 Property Alliance was somehow omitted and this --
21 BY MR. HERNSTADT:
22 Q. What is this first memorandum starting on
23 the second page of the exhibit? Is that the
24 memorandum from the intellectual property?
25 A. No. This is the MPAA memorandum. If you
120
1 read the cover letter, I say I've attached a
2 memorandum presenting the views of MPAA and also
3 attached, a memorandum prepared by the IIPA.
4 MR. HERNSTADT: And so I would also
5 request the production of the IIPA memorandum, or if
6 it's already been produced, identification of the
7 production numbers.
8 BY MR. HERNSTADT:
9 Q. I was confused, Mr. Attaway, because I
10 think you said you didn't recognize the memorandum.
11 A. I didn't recall it.
12 Q. Didn't recall it, okay.
13 A. You have to understand, I write volumes --
14 Q. Yeah, sure.
15 A. -- of material.
16 Q. Is this something that -- do you think you
17 wrote this memorandum?
18 A. Probably, at least in part, but frequently
19 these things are the result of a group effort.
20 Q. Okay. Let's turn to Defendants' Exhibit
21 41, which is a letter to Mr. Carson, the general
22 counsel of the Copyright Office in the Library of
23 Congress, and it appears to be undated. Oh, no.
24 It's dated on the last page of the letter February
25 16, 2000, and it's a five-page letter commencing at
121
1 production number M-6421.
2 A. Uh-huh.
3 Q. Turning to page 3 --
4 A. Yes.
5 Q. Is it the MPAA's position that it can
6 control access to a DVD after the DVD has been sold?
7 MR. GOLD: I'm sorry. That the MPAA --
8 BY MR. HERNSTADT:
9 Q. Uh-huh, and its members.
10 A. It is our position that we can control
11 access to the copyrighted content of the DVD; not
12 the physical DVD itself.
13 Q. Okay. Thank you. That was my question,
14 but you stated it much more clearly.
15 MR. GOLD: You noticed that also?
16 MR. HERNSTADT: Off the record.
17 (Discussion off the record)
18 BY MR. HERNSTADT:
19 Q. Mr. Attaway, you wrote this letter; is
20 that correct?
21 A. Yes.
22 Q. Turning to page 4 -- if you need to take a
23 look at it, just tell me. We'll give you a second.
24 At the bottom of the first full paragraph, the last
25 sentence says, "Works not previously made available
122
1 in the digital environment will be offered to
2 authorized users. Because with the legal
3 prohibition in effect, copyright owners will have a
4 greater practical ability to manage access and to
5 exclude unauthorized users." What works have not
6 been made available in the digital environment?
7 (Whereupon, Mr. Litvack entered the deposition.)
8 A. Oh, I think a great many works have not
9 been made available at all. I've been told that
10 Saving Private Ryan, for instance, has not been made
11 available in digital format. I think some of the
12 Disney classic animated films have not been made
13 available in DVD. I'm sure there's a lot of other
14 material. It's also a matter of timing. I think it
15 is part of our general premise that material, high-
16 valued content will be made available more quickly
17 in digital format if it can be protected against
18 unauthorized use.
19 Q. Is that the situation today?
20 A. Is it the situation today?
21 Q. Is it the situation today that high-value
22 content -- the release of high-value content on DVD
23 is being delayed?
24 A. In certain circumstances, I believe that
25 is true. I do not know of any particular -- I can't
123
1 cite particular copyrighted works because decisions
2 to release copyrighted anything depend on a large
3 number of factors, but it is part of our, again, our
4 general premise with respect to copy protection
5 technology that copy protection technology
6 encourages the availability and the more timely
7 availability of all copyrighted works as a general
8 matter.
9 Q. Okay. When you say our general premise,
10 are you saying the MPAA's general --
11 A. MPAA, yes.
12 Q. How about of the MPAA members?
13 A. I believe the MPAA members subscribe to
14 that overall theory.
15 Q. Do you have a specific reason to believe
16 that? Have they told you that?
17 A. They approve our positions.
18 Q. Okay. Going back to that sentence, my
19 question is were you referring to any specific
20 works?
21 A. No, absolutely not.
22 Q. Who told you that Private Ryan was
23 withheld from DVD release?
24 A. As soon as I made that statement, it
25 occurred to me that you had asked that question and
124
1 I don't have an answer. I do not know. In fact, I
2 don't even know if it's accurate, but I believe
3 someone -- I heard that someplace.
4 Q. Thank you for that accurate statement, or
5 specification I guess. And how about Disney
6 classics?
7 A. Again, I believe that I've heard that, but
8 I cannot swear to the fact or even that it's an
9 accurate statement.
10 Q. When you say a high-value content, are you
11 speaking about current movies or are you talking
12 about movies that did very well in the box office in
13 theatrical release?
14 A. Both. Certainly the Disney classics, even
15 the very oldest ones are very high-value content.
16 Probably -- and certainly all very recent motion
17 pictures would fall into that category.
18 Q. Thanks. Forty-two.
19 MR. GOLD: Did you say 42 is the March
20 31st letter?
21 BY MR. HERNSTADT:
22 Q. Yes, letter dated March 31, 2000 from
23 Mr. Attaway to, again, Mr. Carson of the copy -- the
24 general copy of the Copyright Office of the Library
25 of Congress. It's a four-page letter beginning with
125
1 production number 6471. Was this letter sent to
2 Mr. Carson?
3 A. I believe so, yes.
4 MR. HERNSTADT: With respect to this
5 letter and the letter at Exhibit 41, neither of them
6 are signed copies. I would simply ask that you
7 confirm that the letters were sent, a representation
8 that this is -- some version of this letter -- or
9 not some version, excuse me -- that this letter in
10 this version was sent to Mr. Carson.
11 THE WITNESS: Yes.
12 MR. HERNSTADT: That would be --
13 MR. GOLD: Maybe you should ask the
14 witness.
15 MR. HERNSTADT: I did.
16 MR. GOLD: And what did he say?
17 BY MR. HERNSTADT:
18 Q. He said I believe so, and now you're
19 saying yes?
20 A. The reason they're not signed is they were
21 filed electronically.
22 MR. HERNSTADT: Okay, thank you. Off the
23 record.
24 (Discussion off the record)
25 BY MR. HERNSTADT:
126
1 Q. On the second page of the letter, the
2 first full -- excuse me -- second full paragraph in
3 Reimerdes --
4 A. Uh-huh.
5 Q. In this paragraph, are you referring to
6 the preliminary injunction decision?
7 A. Yes.
8 Q. And only to that decision?
9 A. Yes, I believe that's true.
10 Q. Are you familiar with the terms of the CSS
11 license?
12 A. Generally, yes. In great detail, no.
13 Q. In the next paragraph on page 2 of this
14 letter, you say that -- in the second sentence, that
15 CSS is licensed on a royalty-free nondiscriminatory
16 basis subject to a one-time administration fee. Is
17 it the case that the CSS license is royalty free?
18 A. That is my understanding, yes. There's a
19 one-time payment. I believe there's some
20 consideration for having a relatively modest
21 continuing payment to support the licensing entity,
22 but there's no per-use royalty.
23 Q. Okay. Do you know how Matsushita is
24 compensated for --
25 A. For administering the license?
127
1 Q. No, or for permitting the license of the
2 CSS, if it is at all.
3 A. It's my understanding that Matsushita is
4 not seeking compensation for the use of its patented
5 material.
6 Confidential
7
8
9 A. I don't know.
10 Q. Who would know at the MPAA or at the
11 plaintiffs?
12 A. I don't know if anyone knows. I don't
13 know. I don't know. It's not been -- it's not been
14 discussed in my presence that I can recall.
15 Q. Can you find out?
16 MR. GOLD: Could he what?
17 MR. HERNSTADT: Find out.
18 MR. GOLD: Do you want him to do a little
19 investigating for you?
20 MR. HERNSTADT: It's certainly easier than
21 deposing somebody.
22 MR. GOLD: Yeah. Anything else? We'll
23 take it under advisement.
24 Confidential
25 they would tell us is another question. I can't
128
1 answer that.
2 MR. HERNSTADT: Can we leave a blank in
3 the transcript and we'll either put in something or
4 put in that it's not --
5 MR. GOLD: We're not going to go hold a
6 Confidential
7 asking us.
8 MR. HERNSTADT: No. I'm asking if you can
9 find that out, and if you can, then we'll fill that
10 out, and if you can't, if no one has any knowledge
11 of it and there's no way of finding it out that
12 you're prepared to do, then the answer is I don't
13 know, and that's what we can put in the blank.
14 MR. GOLD: Isn't I don't know in the
15 answer?
16 MR. HERNSTADT: Yes, he's already said I
17 don't know. I guess we can just leave it.
18 BY MR. HERNSTADT:
19 Q. What is the one-time payment under the CSS
20 license?
21 A. The amount?
22 Q. Yes.
23 A. I don't know the specific amount. My
24 recollection is that it is a one-time payment to
25 offset the administrative costs or the cost of
129
1 administering the license.
2 Q. And how much are the continuing payments?
3 A. I don't believe there are continuing
4 payments. I think it's something that's been
5 considered.
6 Q. Oh, okay. And is there any kind of
7 liquidated damages under the CSS license?
8 A. I believe so, but I don't recall what they
9 are.
10 Q. Is there any kind of bond that's required
11 to be posted under the license to ensure payment of
12 the liquidated damages?
13 A. Not that I'm aware of, no.
14 Q. Do persons who sign onto the CSS
15 license -- are they provided with the source code of
16 CSS?
17 A. First of all, there's not just one CSS
18 license. There's at least two. There may be more
19 depending on the licensee. Content owners would
20 enter into one license in order to use the CSS
21 encryption in the software. Device manufacturers
22 would enter into a different agreement in order to
23 use the CSS system in their hardware.
24 Q. Okay.
25 A. And now you're going to have to re-ask
130
1 your question because it just disappeared from my
2 mind. Sorry.
3 MR. GOLD: He's going to join you in that.
4 MR. HERNSTADT: Gone from my mind too.
5 Can we have the question read back please?
6 THE REPORTER: "Question: Do persons who
7 sign onto the CSS license -- are they provided with
8 the source code of CSS?"
9 A. I don't know.
10 Q. Are they provided with any proprietary or
11 secret materials?
12 A. I would think they would have to be, but
13 I'm not an engineer. I don't know.
14 Q. I just mean by the terms of the license.
15 A. I'm not sufficiently familiar with the
16 terms of the license.
17 Q. Okay. In the paragraph that we're talking
18 about where it starts, "It has been previously
19 suggested" --
20 MR. GOLD: What page are we on?
21 BY MR. HERNSTADT:
22 Q. The second page. The number is 6472,
23 production number, and that's the third full
24 paragraph. In the middle of that paragraph, you
25 talk about CSS and the license. To the contrary,
131
1 CSS is licensed, et cetera, et cetera. I read that,
2 on royalty-free nondiscriminatory basis subject to a
3 one-time administration fee. It continues that it's
4 made available to anyone who agrees to, and I'm
5 quoting here, "abide by the terms of such license."
6 Are you referring to any terms in particular?
7 A. No. All of the terms.
8 Q. Okay. And you're not familiar with all of
9 the terms?
10 A. No.
11 Q. Okay. You note in the next paragraph that
12 a DVD playback device supporting Linux operating
13 system will be developed. That's -- I'm not quoting
14 what you say, but is that essentially it?
15 A. We're talking about the paragraph that
16 begins "Importantly"?
17 Q. Yes, and halfway down the next line, "A
18 CSS licensed developer of DVD playback devices
19 recently announced it will support the Linux
20 operating system." Does that mean that someone
21 who's licensed to use CSS will make a CSS-equipped
22 Linux DVD player?
23 A. That's my understanding. This statement
24 was based on a report -- a press release I believe
25 that I saw on the net.
132
1 Q. Okay. Do you know what that press release
2 was?
3 A. I don't recall it specifically, but --
4 Q. Do you remember the developer?
5 A. No, I don't, but --
6 Q. Do you know if this DVD player is Linux --
7 DVD player is available?
8 A. I do not.
9 Q. Do you know when it will be available?
10 A. I do not.
11 Q. Do you know what it will cost?
12 A. I do not.
13 Q. Do you know if it will cost anything?
14 A. I do not.
15 Q. Do you know how many persons are using a
16 Linux operating system?
17 A. No.
18 Q. Or how many persons are using open source
19 operating systems, including Linux?
20 A. No.
21 Q. Okay. Moving on, Defendants' Exhibit 43,
22 which is testimony of Mr. Attaway before --
23 MR. GOLD: Subcommittee on Courts and
24 Intellectual Property --
25 BY MR. HERNSTADT:
133
1 Q. Yeah, the Subcommittee on Courts and
2 Intellectual Property of the Judiciary Committee of
3 the House of Representatives. Turning to page 5 of
4 your testimony, and I take it -- is this your
5 testimony in -- why don't I let you answer the
6 question. What is this testimony?
7 A. I'm going to have to refresh my memory.
8 Q. Okay. On the top of page 2, it says --
9 A. That's where I'm looking at.
10 Q. Do you in this report, in this testimony
11 express the views of the MPAA on the report of the
12 Copyright Office on copyright and digital distance
13 education?
14 A. Yes.
15 Q. And on intellectual property security
16 registration?
17 A. Yes.
18 Q. Okay. Thank you. Page 5 --
19 A. Okay.
20 Q. Halfway down the first paragraph, the
21 sentence that says "Yet, the office recommends that
22 use of audiovisual works be permitted in digital
23 distance education in the face of findings that,"
24 quote, "sophisticated technologies capable of
25 protecting content against unauthorized post-access
134
1 use are just now in development or coming to market,
2 although it is not clear when they will be widely
3 available in a convenient or affordable form." What
4 technologies -- I take it -- strike that. I take it
5 that this is a quote from the Copyright Office's
6 report?
7 A. That's correct.
8 Q. What sophisticated technologies was the
9 Copyright Office talking about here?
10 A. I don't know. I think generally -- I know
11 that generally the Copyright Office was talking
12 about technology that could ensure that the material
13 used in distance learning was confined to bona fide
14 students in the educational program and could not be
15 retransmitted outside that group and particularly
16 onto the internet. What specifically they were
17 referring to here I don't know.
18 Q. Okay. Do you know if the MPAA or the
19 plaintiffs have explored trying to find out what the
20 sophisticated technologies are and whether they
21 would be applicable to protecting digital motion
22 pictures on the internet?
23 A. No, we have not.
24 Q. Moving on to Exhibit 43.
25 (Discussion off the record)
135
1 MR. HERNSTADT: Can we mark this?
2 (A document was marked as Defendants'
3 Exhibit Number 44.)
4 BY MR. HERNSTADT:
5 Q. Do you recognize this document?
6 A. Yes, I do.
7 Q. Do you know what it was redacted from?
8 Without saying what it was, I'm just wondering if
9 you know what it was.
10 A. I do not.
11 Q. Could you tell me what this document is?
12 A. Yes. This document consists of reply
13 comments of copyright industries, a group of
14 copyright industry representative organizations in
15 the Copyright Office's proceeding on 1201(a)(1).
16 Q. And do you know who Steven Metalitz is?
17 A. Metalitz.
18 Q. Thank you.
19 A. Yes, he is an attorney at the law firm of
20 Smith & Metalitz, who represents the International
21 Intellectual Property Alliance.
22 Q. Okay. And I take it he drafted this
23 document?
24 A. He did.
25 Q. Did you have any input into the
136
1 preparation of this?
2 A. I believe I read an early draft. I may
3 have contributed edits. I don't recall.
4 Q. Okay. At the bottom of the first page,
5 which doesn't have a page number, but is production
6 number M-6477, the last sentence on the page reads,
7 "Neither the courts or the marketplace developments
8 nor the submissions in this proceeding provide an
9 adequate basis for concluding that once it becomes
10 illegal to hack, defeat or otherwise circumvent
11 these measures" -- and by these measures, they're
12 talking about technology such as password protection
13 encryption --
14 A. Right.
15 Q. -- "the ability to make non-infringing
16 uses of any type of copyrighted work will be
17 diminished." With respect to DVDs, is that a true
18 statement?
19 A. The term "DVD" refers to a media. It does
20 not refer to copyrighted works. If the question is
21 does this sentence apply to the copyrighted works
22 that are distributed in DVD format --
23 Q. Yes.
24 A. My answer is yes.
25 Q. So it is true that the ability to make a
137
1 non-infringing use of a copyrighted work -- motion
2 picture copyrighted work on a DVD will not be
3 diminished by the anti-circumvention?
4 A. Yes.
5 Q. In answering that question, are you
6 including in your understanding of the two words
7 "non-infringing uses" the fair use of a portion of
8 the material -- of copyrighted materials on a DVD?
9 A. Yes, and you look puzzled so --
10 Q. Please explain, yes.
11 A. I think I should expand on my answer.
12 Q. Yes, please do.
13 A. My answer is yes because I believe that
14 these works are available in other formats that will
15 permit the exercise of fair use by those who have a
16 strong interest in exercising fair use.
17 Q. Okay. Is it true that there are unique
18 copyrighted materials on DVDs?
19 A. That are not available in any other
20 format?
21 Q. Yes.
22 A. Not to my knowledge.
23 Q. Okay. If that's the case, is your answer
24 the same? If in fact there are unique -- that there
25 are copyrighted materials that are unique to the DVD
138
1 format, would your answer to my earlier question
2 about whether this statement is a true statement
3 with respect to copyrighted materials on the DVDs be
4 the same?
5 MR. GOLD: If -- is that not a
6 hypothetical question?
7 MR. HERNSTADT: That is a hypothetical.
8 MR. GOLD: That you can ask of expert
9 witnesses, and there's only one little problem.
10 He's not here as an expert witness. Do you have any
11 facts -- if you want factual questions obviously --
12 MR. HERNSTADT: Well, the factual basis of
13 that is Mr. Goeckner's acknowledgment at Yale
14 University that there are unique materials on DVD.
15 MR. GOLD: You said that you could
16 establish what it was that Goeckner said.
17 MR. HERNSTADT: Yeah. Well, I'm going to
18 ask Mr. Goeckner about that, and we have an
19 affidavit that recites that. If you want, I will
20 refer to the affidavit -- excuse me, the declaration
21 of Robin Gross where she recites Mr. Goeckner's
22 acknowledgment that there are unique works on a DVD.
23 And without asking you to sign onto that because --
24 MR. LITVACK: Can I see the affidavit?
25 Because I don't believe that's what she says, so now
139
1 you're misrepresenting what someone -- what
2 Ms. Gross said that Mr. Goeckner said.
3 MR. HERNSTADT: All right. Well then --
4 MR. LITVACK: If you have it and you want
5 to produce it --
6 MR. HERNSTADT: Then let's take a break
7 and I'll have it faxed down to me.
8 MR. GOLD: Let's go off the record here.
9 (Discussion off the record)
10 THE REPORTER: "Question: If that's the
11 case, is your answer the same? If in fact there are
12 unique -- that there are copyrighted materials that
13 are unique to the DVD format, would your answer to
14 my earlier question about whether this statement is
15 a true statement with respect to copyrighted
16 materials on the DVDs be the same?"
17 MR. GOLD: Wait a second. Again, you're
18 asking him a hypothetical question.
19 BY MR. HERNSTADT:
20 Q. Okay. Are there -- we've had, just for
21 the record, a certain amount of confusion about that
22 question, which has led to colloquy off the record.
23 Let me ask a foundational question of Mr. Attaway.
24 Are there materials on a DVD that are not on any
25 other format, which are unique to the DVD format?
140
1 A. If you are referring to out-takes and
2 material in addition to the motion picture, yes, I
3 understand that some DVDs do include that material.
4 Q. Interviews of the director?
5 A. Correct.
6 Q. Other materials sort of like that. Okay.
7 With reference to those materials that are unique to
8 the DVD format, is this statement that we've been
9 talking about in Exhibit 44 still correct?
10 A. Yes, it is because this statement refers
11 to any type of copyrighted work, and that statement
12 is referring to a movie, a book, a song, a musical.
13 A work, an entire work.
14 Q. Okay. So just to be clear, if the
15 director's interview explaining what he or she was
16 doing in the course of a movie that's on the DVD is
17 included on the DVD, what you're saying is that that
18 doesn't have a separate copyright. That's part of
19 the copyright of the movie itself?
20 A. Technically I suppose that it would be
21 considered part of a -- I'm forgetting the legal
22 term. A compilation work that would exist on the
23 DVD, but in the context of this proceeding by the
24 Copyright Office, the Copyright Office is
25 considering types of works as motion pictures, sound
141
1 recordings, computer programs, published material,
2 and in that context, I believe this statement is
3 correct.
4 Q. Is it the MPAA's position, and by that I
5 mean the MPAA and its members, that so long as an
6 alternative -- excuse me. Strike that. Start over
7 again. Is it the MPAA's position, and by that I
8 include the position of its members, that so long as
9 a copyrighted work is available in some format, that
10 the Fair Use Doctrine as it existed prior to the
11 passage of the DMCA continues to have the same
12 vitality after the passage of the DMCA?
13 MR. GOLD: Assuming there's been a public
14 position taken?
15 MR. HERNSTADT: Yeah.
16 THE WITNESS: It is our position that the
17 availability of works in some other format is a
18 factor that the Copyright Office should take into
19 account in determining whether the exercise of fair
20 use has been severely restricted. I believe that
21 the statutory standard is severely restricted. That
22 is our position.
23 BY MR. HERNSTADT:
24 Q. Okay. And is it the position that so long
25 as substantially all of the materials -- strike
142
1 that. Going back to a couple questions ago when I
2 asked you about materials that are found only on
3 DVDs, does the fact that that material is found only
4 on a DVD constitute -- mean that there is no
5 alternative format on which it's available?
6 A. That is a truism, yes. If it's available
7 only on DVDs, then it's not available on something
8 else.
9 Q. And does that constitute a substantial --
10 A. Substantial impairment of fair use?
11 Q. Yes.
12 A. Not necessarily.
13 Q. Why not?
14 A. Because it could mean that in isolated
15 circumstances, some people might be prevented from
16 exercising fair use, but in the overall scheme of
17 things, which is what I believe the Copyright Office
18 is directed to take into account, it doesn't amount
19 to a substantial impairment.
20 MR. HERNSTADT: Okay. Why don't we take
21 about a five- to eight-minute break, or five- to
22 ten-minute break.
23 (Recessed at 3:40 p.m.)
24 (Reconvened at 3:53 p.m.)
25 BY MR. HERNSTADT:
143
1 Q. Mr. Attaway, I asked you a number of
2 questions during the course of the deposition about
3 positions that the MPAA took and conversations that
4 you had in the course of performing your job with
5 third parties about fair use. I'd like to turn as
6 quick -- as briefly as we can to reverse
7 engineering. Was reverse engineering the subject of
8 your testimony or lobbying efforts with respect to
9 the DMCA?
10 A. It was a significant issue in the
11 Congressional debate; however, it was an issue that
12 I rarely if ever addressed because it was -- it
13 involved -- required technical knowledge that I just
14 don't have. That part of the debate was primarily
15 directed from the copyright owner side by
16 representatives of the computer software industry.
17 It just wasn't something that I or as far as I know,
18 anyone at MPAA became heavily involved in.
19 Q. Okay. Did you ever have discussions with
20 anybody about the possibility of CSS being cracked
21 as part of a software reengineering project?
22 A. I don't ever recall a conversation of that
23 nature.
24 Q. Did you ever have a conversation with
25 anybody about the prospect of DVD players, software
144
1 players being reverse engineered?
2 A. Not that I recall.
3 Q. And I take it there's no particular stance
4 that the MPAA has taken on that? Let me rephrase
5 that. I take it the MPAA -- strike that. Has the
6 MPAA taken a stance on that?
7 A. Not to my knowledge.
8 Q. Is there any particular person that you
9 could identify as a representative in the computer
10 programming industry that would be -- who would have
11 knowledge about the discussions and lobbying efforts
12 during the course of the hearings on the DMCA and
13 reverse engineering?
14 A. Yes.
15 Q. Who would that be?
16 Confidential
17
18 association. It might be Computer Software
19 Association. I'm blanking. Wait a minute.
20 Business Software Alliance. That's what I'm trying
21 to think of. BSA, Business Software Alliance.
22 Q. Is he listed on one of these --
23 A. Yeah, or he isn't, but the association is.
24 He would be IIPA --
25 Q. Is this Exhibit 38? That DVD CCA -- would
145
1 he be part of the DVD CCA?
2 A. No.
3 Q. So we're looking at --
4 A. We're looking at the metallics paper.
5 Q. Is that the last exhibit?
6 A. Oh, yes. Yes, yes, yes, Exhibit 44.
7 Q. Business Software Alliance, and I don't
8 Confidential
9
10 Q. And is he located in Washington?
11 A. Yes.
12 MR. HERNSTADT: Okay. Thank you very
13 much, Mr. Attaway. Subject to I think the standard
14 caveats that we've been making at the conclusion of
15 all the depositions to date, which is to say that if
16 documents are produced that we need to ask
17 Mr. Attaway about or if privilege issues are
18 resolved by the court such that Mr. Attaway has to
19 answer these questions, subject to that caveat, this
20 deposition is done.
21 MR. GOLD: Of course one of my issues has
22 been the fact that I had several discussions with
23 Mr. Garbus earlier in the deposition wherein I said
24 we should set up an orderly discovery process and
25 get our documents to you first and then you'll have
146
1 them all and then you'll take witnesses' testimony,
2 which he refused to have a part of. One of his
3 statements was you didn't need documents to take a
4 deposition, he had a lot of them.
5 So I would say subject to the court's
6 ruling with respect to that, maybe we'll talk about
7 it. Maybe we'll try to compromise it, but if we
8 don't, that's something that I think you folks took
9 on and insisted that we go forward on that basis,
10 and to -- it seems you want your cake and eat it
11 too.
12 THE WITNESS: Excuse me, gentlemen. Do
13 you need me to proceed?
14 MR. HERNSTADT: No. I have one more thing
15 to say.
16 (Whereupon, the witness left the deposition.)
17 MR. GOLD: I'll say that's the position
18 that I'm reserving, just like you're reserving.
19 MR. HERNSTADT: Right, and my response is
20 that I think at each of these depositions we've each
21 staked out our positions, and if it comes to it --
22 and I appreciate Mr. Gold suggesting that maybe we
23 can work this out without going to the court, and I
24 think that's always the best way. At the end of the
25 day maybe we have to do that, but one thing I do
147
1 need to respond to is that we have sought these
2 documents --
3 (Interruption)
4 (Discussion off the record)
5 MR. HERNSTADT: To conclude, that we
6 requested these documents quite a while ago, and I
7 guess to in fairness say with respect to Mr. Attaway
8 and the MPAA, we have received over 7,000 documents.
9 I don't think it's likely there's more documents
10 that are relevant that are going to be coming in. I
11 think we're both reserving our positions.
12 MR. GOLD: Yeah.
13 (Whereupon, at 4:02 p.m., the taking of
14 the instant deposition concluded.)
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148
1 CERTIFICATE OF DEPONENT
2 I have read and examined the foregoing 147
3 pages and find the answers contained therein with
4 changes made by me, if any, to be true and correct.
5
6 _________________________
7 Signature of the Witness
8
9 Subscribed and sworn to before me this
10 ______ day of__________, 200__.
11
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13 __________________________
14 Notary Public in and for
15 ________________________
16 My Commission Expires ___________________.
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1 UNITED STATES OF AMERICA )
2 ss:
3 DISTRICT OF COLUMBIA )
4 I, KAREN C. YOUNG, a Notary Public
5 within and for the District of Columbia, do hereby
6 certify that the witness whose deposition is
7 hereinbefore set forth was duly sworn and that the
8 within transcript is a true record of the testimony
9 given by such witness.
10 I further certify that I am not related
11 to any of the parties to this action by blood or
12 marriage and that I am in no way interested in the
13 outcome of this matter.
14 IN WITNESS WHEREOF, I have hereunto set
15 my hand this _______day of__________, 200__.
16
17
18 ____________________________
19 My Commission Expires:
20 July 31, 2004
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