Fritz E. Attaway Deposition, in MPAA v. 2600

Washington, D.C.; June 7, 2000

See related files: (EFF Archive) (Cryptome Archive) (2600 Archive)


          1              UNITED STATES DISTRICT COURT
          2              SOUTHERN DISTRICT OF NEW YORK
          3   - - - - - - - - - - - - - - - - - - x
              UNIVERSAL CITY STUDIOS, INC.;       :
              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.         :
         13   - - - - - - - - - - - - - - - - - - x
         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.

                               INTERIM COURT REPORTING
         23                   545 FIFTH AVENUE, SUITE 900
                               NEW YORK, NEW YORK 10017 
         24                       (212) 490-3430  


          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
          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
         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

          1                  C  O  N  T  E  N  T  S
          2   WITNESS:  FRITZ E. ATTAWAY
          3   EXAMINATION BY:                                 PAGE
          4         By Mr. Hernstadt ........................... 5


          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
         17             (EXHIBITS RETAINED BY COUNSEL)
         19                         -  -  -


          1                         -  -  -
          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                         -  -  -
         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.


          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.


          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.


          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


          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?


          1                         -  -  -
          2               (Discussion off the record)
          3                         -  -  -
          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


          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?"
         17                         -  -  -
         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


          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.


          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


          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.
         12                         -  -  -
         13               (Discussion off the record)
         14                         -  -  -
         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?


          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


          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


          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?


          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


          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.
          7                         -  -  -
          8               (Discussion off the record)
          9                         -  -  -
         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 --


          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


          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


          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.


          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


          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


          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


          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


          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


          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


          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.


          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


          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


          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


          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


          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


          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?


          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


          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


          1   in the company had seen these postings, the
          2   technology people, can you identify which people
          3   you're talking about?
          5                     Confidential
          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
         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.


          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?


          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.


          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.


          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


          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:


          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


          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


          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.


          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.


          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?
          9                    Confidential  
         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.


          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.
          7                     Confidential


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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


          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


          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,


          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


          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.


          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?


          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


          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?


          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.


          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


          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?


          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


          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.


          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 --


          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.


          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 --


          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:


          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


          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


          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


          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


          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:


          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


          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


          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)?


          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,


          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


          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.


          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?


          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,


          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


          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


          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


          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.


          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?


          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.


          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


          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:


          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?


          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.


          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.


          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


          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


          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,


          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.


          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.


          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


          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
          6                     Confidential


          1                      Confidential
         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?


          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?


          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:


          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


          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


          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


          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


          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


          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


          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:


          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?


          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
          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


          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


          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


          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,


          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.


          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:


          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


          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)


          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


          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


          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


          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


          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?


          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


          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


          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:


          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


          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
         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


          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
         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


          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


          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.)


          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.
          6                              _________________________
          7                               Signature of the Witness
          9             Subscribed and sworn to before me this
         10   ______ day of__________, 200__.
         13                          __________________________
         14                           Notary Public in and for
         15                           ________________________
         16   My Commission Expires ___________________.

          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__.
         18                         ____________________________
         19   My Commission Expires:
          20   July 31, 2004