See related files:
http://www.eff.org/IP/Video (EFF Archive)
http://cryptome.org/cryptout.htm#DVD-DeCSS
(Cryptome Archive)
http://www.2600.com/dvd/docs (2600 Archive)
http://eon.law.harvard.edu/openlaw/dvd/ (Harvard DVD OpenLaw Project)
The continued video deposition of Emmanuel Goldstein on June 28, 2000.
1
1
2 UNITED STATES DISTRICT COURT
3 SOUTHERN DISTRICT OF NEW YORK
4
UNIVERSAL CITY STUDIOS, INC.; )
5 PARAMOUNT PICTURES CORPORATION; )
METRO-GOLDWYN-MAYER, INC.; TRISTAR )
6 PICTURES, INC.; COLUMBIA PICTURES )
INDUSTRIES, INC.; TIME WARNER )
7 ENTERTAINMENT CO., L.P.; DISNEY )
EMTERPRISES, INC.; AND TWENTIETH )
8 CENTURY FOX FILM CORPORATON, )
)
9 )
PlaintiffS, )00 Civ. 277
10 )(LAK)(RLE)
vs. )
11 )
SHAWN C. REIMERDES; ERIC CORLEY )
12 A/K/A "EMMANUEL GOLDSTEIN"; )
ROMAN KAZAN; AND 2600 )
13 ENTERPRISES, INC. )
)
14 Defendant. )
------------------------------------)
15
16
17 DEPOSITION OF EMMANUEL GOLDSTEIN
18 New York, New York
19 Tuesday, June 27, 2000
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21
22
23
24 Reported by:
Thomas R. Nichols, RPR
25 JOB NO. 110287
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6 June 27, 2000
7 10:20 a.m.
8
9 Deposition of EMMANUEL GOLDSTEIN,
10 held at the offices of Proskauer Rose LLP,
11 1585 Broadway, New York, New York, pursuant
12 to Notice, before Thomas R. Nichols, a
13 Registered Professional Reporter and a
14 Notary Public of the State of New York.
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3
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2 A P P E A R A N C E S:
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4 PROSKAUER ROSE LLP
5 Attorneys for Plaintiffs
6 1585 Broadway
7 New York, New York 10036-8299
8 BY: LEON GOLD, ESQ.
9 CARLA M. MILLER, ESQ.
10
11
12 FRANKFURT GARBUS KLEIN & SELZ, PC
13 Attorneys for Defendants
14 488 Madison Avenue
15 New York, New York 10022
16 BY: MARTIN GARBUS, ESQ.
17 EDWARD HERNSTADT, ESQ.
18
19 ALSO PRESENT:
20 MARK D. LITVACK, ESQ.
21 JESSICA FREIHEIT
22 RUBEN MARTINEZ, THE VIDEOGRAPHER
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24
25
4
1 Proceedings
2 THE VIDEOGRAPHER: This is tape
3 number one of the videotape deposition of
4 Mr. Emmanuel Goldstein in the matter
5 Universal City Studios, Inc. et al.,
6 plaintiffs, versus Shawn C. Reimerdes, et
7 al., defendants, in the United States
8 District Court, Southern District of
9 New York, Number 00 Civ 277(LAK)(RLE).
10 This deposition is being held at 1585
11 Broadway on June 27, 2000, at approximately
12 10:20 a.m. My name is Ruben Martinez from
13 the firm of Esquire Video Services. The
14 court reporter is Mr. Tom Nichols in
15 association with Esquire Deposition
16 Services.
17 Will the counsels please introduce
18 themselves.
19 MR. GOLD: My name is Leon Gold. I am
20 with Proskauer Rose, counsel to the
21 plaintiffs.
22 MS. MILLER: Carla Miller with
23 Proskauer Rose, counsel to all plaintiffs.
24 MR. LITVACK: Mark Litvack with the
25 Motion Picture Association of America,
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1 Proceedings
2 counsel for plaintiffs.
3 MS. FREIHEIT: Jessica Freiheit,
4 summer associate, Proskauer Rose.
5 MR. GARBUS: Martin Garbus, Frankfurt
6 Garbus, one of the attorneys for the
7 defendant.
8 MR. HERNSTADT: And Edward Hernstadt
9 of Frankfurt Garbus.
10 THE VIDEOGRAPHER: Will the court
11 reporter please swear in the witness.
12 MR. GARBUS: Just let me note that the
13 caption you read is incorrect. It should be
14 changed, that two of the people you
15 mentioned are no longer part of the case,
16 but we will give you a correct caption
17 before you type this up.
18 (Witness sworn.)
19 MR. GOLD: Actually, Martin, I don't
20 think the caption has ever been officially
21 changed.
22 MR. GARBUS: It has been.
23 MR. GOLD: Did you file something?
24 MR. GARBUS: Yes.
25 MR. HERNSTADT: We didn't file
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1 Proceedings
2 anything, but Miss Reyes, the judge's law
3 clerk, asks, every time we go to court she
4 asks, What's going on? Aren't these people
5 out of the case? And she said she was going
6 to talk to the Clerk about getting it
7 changed.
8 MR. GOLD: Thus it isn't changed.
9 MR. HERNSTADT: I think it's been
10 done, but I don't know for sure.
11 MS. MILLER: Because our understanding
12 procedurally was that the defendant that had
13 settled out had to make a motion to change
14 the caption to remove their names. But
15 we'll figure that out.
16 MR. HERNSTADT: We'll figure that out.
17 I hope that the judge's deputy can take care
18 of it.
19 MS. MILLER: Perhaps.
20 (Continued on next page.)
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25
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1 Goldstein
2 E M M A N U E L G O L D S T E I N , called as a
3 witness, having been duly sworn by a Notary
4 Public, was examined and testified as
5 follows:
6 EXAMINATION BY
7 MR. GOLD:
8 Q. Mr. Goldstein, do you understand that
9 people who create artistic work are entitled to
10 copyright protection?
11 A. Absolutely.
12 MR. GARBUS: I object to the question.
13 Direct the witness not to answer.
14 MR. GOLD: On what ground?
15 MR. GARBUS: I think he is being
16 examined as a fact witness.
17 MR. GOLD: I asked him what
18 understanding he has.
19 MR. GARBUS: I object to the question.
20 I will allow the witness to answer.
21 Q. What rights do you understand copyright
22 holders have?
23 MR. GARBUS: Object to the question.
24 THE WITNESS: Can I answer anyway?
25 OK.
8
1 Goldstein
2 A. Basically if you create something,
3 you're entitled to benefit from it. No problem
4 with that.
5 Q. Do you understand that copyright holders
6 do have a right to decide who can see or use their
7 work?
8 A. That's not my understanding of how
9 copyright works.
10 Q. What is your understanding of how a
11 copyright works?
12 MR. GARBUS: I think I will object to
13 this and I will direct the witness not to
14 answer. The witness is not a lawyer. The
15 same objections were made when Mr. Valenti
16 was being examined and he was directed not
17 to answer a question. I direct the witness
18 not to answer.
19 Q. Do you understand that people who have
20 copyrights have the right to maximize their return
21 from the copyright?
22 A. Yes.
23 Q. What does that mean to you, maximize the
24 return on their copyrighted work?
25 A. It means they are entitled to benefit
9
1 Goldstein
2 however much the market dictates they will benefit
3 from the selling of their work.
4 Q. Do you understand that the motion
5 picture companies who have copyrights on their
6 movies have that right?
7 A. Yes.
8 Q. Do copyright holders have the right to
9 decide as you understand it who will see their
10 work?
11 MR. GARBUS: I object to the question.
12 A. I don't see how that's possible.
13 Q. Do copyright holders have the right --
14 for instance, if the copyright holder is a
15 novelist, do you understand that he would have the
16 right to decide who can sell his books to the
17 public?
18 MR. GARBUS: I object to it.
19 Mr. Goldstein's version of the copyright law
20 is not at issue. What is at issue is what
21 he did. And to suggest that because he has
22 one set of beliefs rather than another set
23 of beliefs, something that is lawful and
24 appropriate is somehow unlawful and
25 appropriate, because any view he had it
10
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2 seems to me is improper.
3 It seems to me what you're doing is
4 you're asking questions for the benefit of
5 the viewing audience and that the judge
6 would not permit at trial the kinds of
7 questions you are now asking.
8 MR. GOLD: You can answer the question.
9 THE WITNESS: I forgot the question.
10 MR. GOLD: Can you read it back.
11 (A portion of the record was read.)
12 A. Yes.
13 Q. Do you understand that copyright holders
14 have the right to protect their work against people
15 who would use it without permission?
16 A. Absolutely.
17 Q. Do you believe that anyone is entitled
18 to assist others in using or taking the copyright
19 work without permission?
20 MR. GARBUS: I object to the form of
21 the question. I would wait for a direction
22 from the judge before the witness is
23 required to answer that.
24 MR. GOLD: You're directing witness
25 not to answer that question?
11
1 Goldstein
2 MR. GARBUS: No, I will allow the
3 witness to answer.
4 MR. GOLD: Thank you.
5 MR. GARBUS: I would like to speak to
6 the witness for five minutes at this point
7 before we go on with the deposition.
8 MR. GOLD: First of all, do you want
9 to answer the pending question?
10 Would you read the question back to
11 the witness.
12 (A portion of the record was read.)
13 A. I think that depends on the definition
14 of the word "assist." If you're explaining how
15 technology works, then absolutely you're allowed to
16 describe that, to explain that.
17 If you're talking about leading somebody
18 by the hand to make an illegal copy of something,
19 then no, absolutely not.
20 MR. GARBUS: Can we take that
21 five-minute break?
22 MR. GOLD: Well, I object to that,
23 Mr. Garbus, because I think based on what we
24 have done so far, and since we only started
25 about seven minutes ago, that there can't be
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1 Goldstein
2 any reason for a break other than to
3 instruct your witness on how to deal with
4 certain questions along the lines I am
5 asking. So I am going to take that position
6 with the judge. I think it's improper.
7 MR. GARBUS: OK. We had as a courtesy
8 throughout these depositions, irrespective
9 of when it occurred, always allowed -- and
10 this happened repeatedly with your witness,
11 any time a lawyer defending a case said I
12 would like to speak to a witness, even when
13 a question was posed, we had extended that
14 courtesy to each other. Basically we
15 extended it to you because these were your
16 witnesses being examined. I would just
17 expect that we would get the same courtesy
18 here.
19 MR. GOLD: Yes, but we didn't take a
20 break five minutes after the deposition
21 started.
22 MR. GARBUS: Yes, we did. We did the
23 exact same thing as previously.
24 MR. GOLD: In what depositions?
25 MR. GARBUS: I don't have all the
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1 Goldstein
2 depositions in front of me. My memory is
3 we did it with Schulman.
4 Q. What is your understanding of the
5 meaning of the word "assist"?
6 MR. GARBUS: I would object to the
7 form. This witness is not a lawyer. He is
8 not being deposed as a lawyer. He is a
9 journalist who printed information, and I
10 think to ask him his definition of "assist"
11 is improper except to the extent that he had
12 conversations with his lawyer, and with his
13 lawyer he had discussions of that word, and
14 to that extent I would claim the privilege
15 with respect to it.
16 Do you have any independent knowledge
17 of what that word means other than the
18 conversations you've had with me or with
19 Mr. Hernstadt? And if it is based on
20 conversations you've had with me and
21 Mr. Hernstadt, then just it's based on
22 conversations with your lawyer, and then
23 it's privileged.
24 THE WITNESS: Uh-huh.
25 A. We did discuss that, so I would have to
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1 Goldstein
2 say it's privileged.
3 Q. Do you ever use the word "assist" in
4 your writing?
5 A. I may have on occasion.
6 Q. What does it mean when you use it?
7 A. To help, but it's a very general type of
8 a word.
9 Q. Just tell me what it means to you.
10 A. To help, to aid.
11 Q. To help or aid?
12 A. Yes.
13 Q. Using that definition of the word
14 "assist," do you understand that anyone is entitled
15 to assist others in taking or using a copyright
16 work without permission?
17 MR. GARBUS: I will object to it. To
18 the extent of your knowledge of copyright
19 law or the word "assist" comes from
20 conversations with me or your attorneys,
21 then just say it. And to the extent that
22 these discussions were held in the context
23 of preparation for this case, it is
24 privileged.
25 A. Again, that's something that we
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1 Goldstein
2 discussed. Whether it's a synonym of the word
3 "assist," it's still something we discussed.
4 Q. When did that discussion take place?
5 Just the date.
6 A. Before we came over here.
7 Q. Today.
8 A. Yes.
9 Q. And you spent about an hour?
10 A. Not on the word "assist."
11 Q. With Mr. Garbus?
12 A. But, yeah, on various things, yes.
13 Q. Had you met with him before for the
14 purpose of preparing for your deposition?
15 A. Once, yes.
16 Q. When was that?
17 A. Yesterday.
18 Q. When was it you talked about whether
19 anyone is entitled to assist others in taking
20 someone's copyrighted work without permission?
21 MR. GARBUS: I will object to the
22 question as privileged.
23 Q. Today or yesterday?
24 MR. GARBUS: I will object to the
25 question as privileged. When he spoke to
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2 his lawyer about it is privileged.
3 THE WITNESS: Should I answer?
4 MR. GARBUS: Yes.
5 A. Today.
6 Q. Did you have any understanding prior to
7 yesterday of whether anyone was entitled to assist
8 others in using a copyrighted work without
9 permission?
10 MR. GARBUS: I will object to it
11 except to the extent that you had some
12 awareness of whether linking was permitted
13 or not permitted and where you got that
14 understanding.
15 Q. I am not interested in your definition
16 of the word "linking" or posting in this question.
17 What I am asking you is before you
18 talked to your lawyers about the subject, your
19 present lawyers about the subject, did you have any
20 understanding before that of whether anyone was
21 entitled to assist others in taking a copyrighted
22 work without permission?
23 MR. GARBUS: I object to it. That
24 specifically -- object to form. That
25 specifically relates to the question of
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1 Goldstein
2 linking. So if he had some knowledge of
3 whether linking was permissible or not
4 permissible, the question is did he have any
5 discussions about linking or did he have any
6 knowledge either from the previous court's
7 decision or now about linking, which is what
8 assisting is.
9 MR. GOLD: Can you read the question
10 back to the witness, and then I am going to
11 ask you to answer that, sir.
12 (A portion of the record was read.)
13 A. I had an opinion. Yes.
14 Q. What was your opinion?
15 A. That any kind of copyright infringement
16 is wrong. Helping someone obviously to infringe
17 upon copyright would be wrong too.
18 Q. Prior to yesterday did you have any
19 understanding of whether anyone was entitled to
20 break through a protective device which protects
21 digital copyrighted work in order to take that work
22 without permission?
23 MR. GARBUS: Objection unless you're
24 also including the term "fair use." It's
25 misleading unless you put that qualifier in
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2 the sentence.
3 MR. GOLD: Do you remember the
4 question, Mr. Goldstein?
5 THE WITNESS: I'd appreciate having it
6 read back.
7 (A portion of the record was read.)
8 A. Yes.
9 Q. What was your understanding?
10 A. That that kind of thing was wrong. That
11 taking something without permission is wrong.
12 Q. Is there a time in 1999 when you were
13 posting DeCSS?
14 A. In 1999 as of late November we mirrored
15 the site on our web site.
16 Q. Did 2600 ever post DeCSS?
17 A. That's what mirroring is, yes.
18 Q. For what purpose?
19 A. At the time it had only just happened a
20 couple of weeks earlier. We had noted the events
21 as someone had figured out the encryption standard
22 being used by DVDs and had found it to be rather
23 badly written.
24 When we saw that those people were being
25 intimidated and forced to shut down their web
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1 Goldstein
2 sites, as journalists we stood up and said this is
3 wrong. And then we were listed then in all future
4 court records.
5 Q. You only mirrored DeCSS after this suit
6 was started?
7 A. No, we mirrored DeCSS after we became
8 aware that people around the world were being
9 threatened because they were showing people how the
10 encryption worked.
11 Q. What was the purpose of the mirror?
12 A. As journalists we have a very firm sense
13 of freedom of information, and we believe people
14 have the right to know how things work. As a
15 publisher of a magazine that deals with such
16 issues, I feel strongly that we all have both the
17 desire and the right to know how things around us
18 operate. And I don't see that as related in any
19 way to theft of those services.
20 Q. When you mirrored or posted DeCSS on
21 2600, how did you make sure that people who simply
22 wanted to see movies that were copyrighted without
23 buying them would not use DeCSS?
24 A. Well, there's two answers to that.
25 First of all, when you tell someone how something
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1 Goldstein
2 works, when you give information out, people can
3 always use information in a good or a bad way.
4 That's just the nature of information.
5 The second part of that is that, what
6 was posted, DeCSS, has got nothing to do with
7 illegal copies. And I think that's been proven
8 time and again. I don't think a single case of
9 copyright violation has been traced to DeCSS.
10 Copies of DVDs have been made.
11 We had in fact reported two years
12 earlier on November 25, 1997, on one of our radio
13 shows that illegal copies of DVDs were being made
14 in what is known as bit by bit transfer using a
15 program called SoftDVD. And what the DeCSS code
16 showed instead was that the encryption was weak,
17 and that encryption was more about control of the
18 playing back as to where you played it back and how
19 you played it back, not making copies.
20 Q. Did you understand at the time you
21 posted DeCSS that most people who owned computers
22 would not understand how DeCSS works even if they
23 downloaded DeCSS?
24 A. Most people I know who have computers
25 would understand it.
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1 Goldstein
2 Q. But you know far fewer than 50 percent
3 of the people in the United States that have
4 computers?
5 A. Absolutely, yes.
6 Q. You know far fewer than 2 percent of the
7 people who own computers.
8 MR. GARBUS: We would agree it is
9 one-tenth of one million.
10 A. I don't know that many people.
11 Q. Did you believe it was appropriate to
12 post DeCSS even though ten people, and only ten
13 people, might use that, might download it for the
14 purpose of finding out how it works?
15 MR. GARBUS: I will object to the form
16 of the question. There's been no proof that
17 ten people have used it. I object to the
18 form of the question, about whether he knew
19 or understood.
20 A. I would have to say that if I applied
21 that logic to everything I wrote, I wouldn't be
22 writing anything. Because someone can always take
23 what I've written and use it in a bad way and then
24 I would be up nights worrying about, you know, what
25 they did wrong. I don't think anyone has ever used
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2 DeCSS to pirate a film.
3 Q. Do I take it that you agree that you had
4 the right or you believe you had the right to post
5 DeCSS even though far less than one percent of the
6 people who would download it would have any
7 interest in how CSS or DeCSS works?
8 MR. GARBUS: I object to the form of
9 the question.
10 A. I am not sure it is possible to say how
11 many people who downloaded it understand it. I
12 don't think a significant portion of the American
13 public downloaded it.
14 I do think the people who went to the
15 web site read the text that surrounded it and
16 hopefully learned something from the text, and if
17 they were interested in pursuing it further,
18 learning more about the technology, then they had
19 to look at the program as well.
20 Q. Was there anything wrong in your
21 printing the text that accompanied the letters
22 DeCSS?
23 A. I'm not sure I understand your question.
24 MR. GARBUS: Objection to form.
25 Q. You had an absolute right, didn't you,
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2 in saying whatever you said on your web site except
3 for DeCSS? Isn't that right?
4 MR. GARBUS: Objection to the form of
5 the question. He can't refer to the term
6 "DeCSS" on his Web site? Is that the
7 question?
8 MR. GOLD: You can answer.
9 THE WITNESS: Can you just repeat that
10 back?
11 MR. GARBUS: I didn't understand the
12 question.
13 (A portion of the record was read.)
14 A. I had the right to say what I said on
15 the web site, and I believe that extends to posting
16 the code as well.
17 Q. Do you or any corporation you're
18 affiliated with have a copyright, own a copyright?
19 A. Yes, our words are copywritten in our
20 magazine.
21 Q. Who caused them to be copywritten?
22 A. I did.
23 Q. Why?
24 A. It's standard to have a copyright to
25 protect your interest. Someone could take 2600 and
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2 just simply reproduce it if we had no copyright.
3 Q. What interests were you protecting?
4 A. Well, our interests obviously. We have
5 words that we write and we don't want somebody else
6 just taking them. But by the same token, we have
7 no problem with people spreading our information
8 around. Because we write it for the purpose of
9 being read. But we do hold the copyright.
10 Q. I think I am confused. I don't
11 understand why you have the copyright if you say
12 that you don't care who uses your material.
13 A. Well, there's different standards of
14 use. If someone were to take our magazine and
15 simply duplicate it, well, that's obviously very
16 bad. If somebody were to, say, quote something
17 from one of our articles, we have no problem with
18 that. We consider that fair use.
19 Q. In other words, if they had quoted
20 something, but not the whole thing, you consider
21 that OK.
22 A. Right.
23 Q. And when you got the copyright, one of
24 the purposes would protect anyone from taking the
25 whole thing.
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1 Goldstein
2 A. Yes.
3 Q. Is it your understanding that the
4 current court injunction against your posting DeCSS
5 violates your right?
6 MR. GARBUS: I will object to it.
7 A. I wouldn't say it violates my rights. I
8 say that it's open to contention whether it's right
9 or not, but obviously we're following the
10 injunction so we respect it.
11 Q. Do you believe that the current court
12 injunction violates rights that you have --
13 MR. GARBUS: I object.
14 Q. -- in any way, shape or form?
15 MR. GARBUS: Object to the form of the
16 question.
17 Q. Or do you believe the current court
18 injunction is perfect proper and appropriate? And
19 I am asking for your beliefs.
20 MR. GARBUS: I object to the form of
21 the question. If you can't exclude anything
22 from any privileged communications you had,
23 any conversations with counsel telling you
24 what your rights are, so to the extent it
25 comes out of conversations with counsel,
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1 Goldstein
2 just say that and I will claim the
3 privilege.
4 A. I respect the injunction.
5 Q. Excuse me?
6 A. I respect the injunction. I don't
7 believe the injunction is violating my rights per
8 se. I think it's a fight that we're engaged in.
9 And obviously the injunction was filed against us.
10 We respect that and we followed it. So....
11 Q. Do you understand that the injunction
12 prohibits you and 2600 from posting DeCSS?
13 A. And we have done just that.
14 Q. Do you think it's appropriate and right
15 that the court did that?
16 MR. GARBUS: I object to it to the
17 extent that what the judge did is right or
18 wrong comes out of conversations you had
19 with counsel.
20 MR. GOLD: Oh, my gosh. Martin, I
21 object to what you're doing.
22 A. I see a difference between what the
23 judge said and what the people behind the case are
24 saying. Obviously I don't believe the people
25 behind the case are right. I don't think the judge
27
1 Goldstein
2 acted improperly. I think the judge is doing what
3 judges do, and I have every faith in that.
4 Q. What do judges do?
5 A. Judges make decisions based on the
6 evidence given to them, and it's my hope that we'll
7 present evidence to prove that we're right in the
8 end.
9 MR. GARBUS: Leon, as you know,
10 there's a motion to vacate the injunction.
11 Q. I take it you don't believe that the
12 injunction is inappropriate.
13 A. The injunction in itself.
14 MR. GARBUS: I object to the form of
15 the question.
16 Q. Do you think you have a right to post
17 DeCSS?
18 A. Yes, I do.
19 Q. Why?
20 A. I consider it --
21 MR. GARBUS: I object to the form of
22 the question.
23 A. I consider it a form of speech. I
24 consider it a form of basically writing about
25 technology showing how things work, and I think it
28
1 Goldstein
2 is a very -- it is a chilling effect if you start
3 punishing people for showing how something works.
4 It is one step away from punishing someone from
5 talking about it. And I think as journalists we
6 need to stand up to that.
7 MR. GOLD: I would like to have this
8 marked as Plaintiffs' Exhibit 1.
9 (Plaintiffs' Exhibit 1, piece of paper
10 with the letters DeCSS written on it, marked
11 for identification, as of this date.)
12 Q. I am going show you Exhibit 1,
13 Mr. Goldstein. Give you a chance to look at it.
14 It won't take very long.
15 A. OK.
16 Q. What does that mean to you?
17 A. It means you have written DeCSS on a
18 piece of paper.
19 Q. But what does it mean?
20 MR. GARBUS: Object to the form of the
21 question.
22 A. What does it mean?
23 Q. Yes.
24 A. It's -- it doesn't really mean a whole
25 lot to me to be honest. You have written something
29
1 Goldstein
2 on a piece of paper. But this is not the same
3 thing as DeCSS code.
4 MR. GARBUS: I object to the form of
5 the question.
6 Q. You say that is not the DeCSS code; is
7 that right?
8 A. Five letters on a piece of paper? No,
9 sir, it's not.
10 Q. Is that a word?
11 MR. GARBUS: I object to the form of
12 the question.
13 Q. DeCSS.
14 MR. GARBUS: I object to the form of
15 the question. I direct the witness not to
16 answer. DeCSS speaks for itself. You have
17 written five letters on a piece of paper.
18 MR. GOLD: You're going to direct the
19 witness not to answer? On what ground?
20 MR. GARBUS: Can you tell me where
21 you're doing with this deposition?
22 MR. GOLD: No.
23 MR. GARBUS: It is now close to 11
24 o'clock. It seems to me what you have done
25 in the last half hour is ask questions that
30
1 Goldstein
2 have limited relevancy, if any, to this
3 lawsuit, his understanding of the law.
4 MR. GOLD: I'm sorry.
5 MR. GARBUS: And I appreciate it --
6 don't apologize until I'm through. I
7 appreciate it if you get to the questions
8 that I perceive to be at issue in this
9 lawsuit.
10 I mean, I think it is very cute to
11 write DeCSS on a piece of paper and I
12 presume you can examine him for half an hour
13 on it, but it has nothing to do with the
14 issues in this lawsuit. What his
15 understanding is of five letters you have
16 written on a blank piece of paper --
17 MR. GOLD: I think an objection is OK,
18 but you're filibustering.
19 MR. GARBUS: Can I finish?
20 MR. GOLD: No. I think you're
21 filibustering. That's not an objection.
22 That's improper.
23 Q. Now you can answer the question. Is
24 that a word, DeCSS?
25 A. Not in the English language. It's five
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2 letters. It stands for something.
3 Q. And I take it it has no meaning to you.
4 A. It in that form? Well, it has meaning
5 in that it represents something. It represents
6 what we're talking about today. Other than that, I
7 am not sure if that's the way you're presenting it.
8 Q. Thank you. Do you believe that when you
9 were posting DeCSS you were engaged in an act of
10 civil disobedience?
11 MR. GARBUS: Objection. He has
12 already testified he was the media and was
13 presenting as part of a story.
14 A. When we first posted it we posted it
15 as journalists talking about a news story.
16 Q. How was the posting accomplished?
17 A. The posting of the actual DeCSS or the
18 article surrounding it?
19 Q. The posting of DeCSS. What you call the
20 actual DeCSS.
21 A. I wasn't the person who actually copied
22 it, but I imagine it was taken from one of the
23 sites that had it up on the Net. We verified what
24 was in it and put it up on our site.
25 Q. By whom? Who did that?
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1 Goldstein
2 A. Probably our webmaster.
3 Q. And who's that?
4 A. His on-line name is Macki.
5 Q. And his real name?
6 A. I know his first name. His first name
7 is Mike. Last name begins with the letter S.
8 That's really all I know. I know how to E-mail. I
9 know how to get ahold of him, but I don't know his
10 full last name.
11 Q. He is not employed by you?
12 A. No.
13 Q. Did you ask him to post DeCSS on your
14 site?
15 A. We talked about it and agreed that that
16 was the appropriate thing to do.
17 Q. So you did ask him to do it?
18 A. We conferred. We agreed together. I
19 didn't direct him to do this.
20 Q. Does he have any ownership of your
21 stock?
22 A. Not as such. I mean, he has a say in
23 the kinds of things that go on there.
24 Q. Do you have an ownership of your stock?
25 A. Yes.
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2 Q. You own stock in the company that
3 controls your stock?
4 A. It's a private corporation, yes.
5 Q. Did you approve of what he did posting
6 the CSS on your site?
7 A. DeCSS.
8 Q. DeCSS on your site.
9 A. Yes.
10 Q. In the past six months have you been
11 engaged in any kind of reverse engineering of
12 anything?
13 A. I am a journalist. I am not an
14 engineer.
15 Q. So the answer is no?
16 A. The answer is no.
17 Q. In the last six months have you been
18 engaged in any cryptographical research?
19 A. No.
20 Q. Prior to the court proceedings did you
21 talk to any people about DeCSS who were in fact
22 engaged or planning to engage in reverse
23 engineering?
24 A. Not with my knowledge. I talked to a
25 lot of people on the Internet. People message back
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2 and forth and some might be very knowledgeable in
3 certain fields. So it's very hard for me to say
4 whether or not I was talking to somebody who was
5 doing something like that.
6 Q. Since the commencement of this lawsuit
7 have you talked to any people who are using DeCSS
8 for the purpose of reverse engineering?
9 A. To be honest, I have never found anybody
10 who has successfully gotten DeCSS to work.
11 Q. So the answer to my question is no?
12 A. No.
13 Q. You haven't talked to any people.
14 And where did you get the understanding
15 that people can't get DeCSS to work?
16 A. I've gotten messages, again on the
17 Internet. I remember back towards the later part
18 of last year seeing messages from people who are
19 trying to figure it out and it was too complex for
20 them.
21 I imagine there are some people who have
22 gotten it to work and have been able to use DVDs on
23 their Linux machines, which is the purpose of it.
24 But myself, I have not talked to anybody personally
25 who has done that.
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2 Q. To your knowledge, has anyone in the
3 world currently engaged in reverse engineering
4 DeCSS or CSS?
5 A. Which?
6 Q. CSS.
7 A. I think it's already been done. I think
8 CSS has pretty much been shown to be not very
9 secure encryptionwise.
10 Q. Do you know of any cryptographical
11 research with respect to DeCSS that's been done
12 anywhere in the world?
13 A. Not specifically, no.
14 Q. How did you come to the understanding
15 that the purpose of DeCSS was to view movies on a
16 Linux machine?
17 A. There's been quite a lot of discussion
18 in various forums and at conferences and various
19 places like that by people who are extremely
20 knowledgeable in the field, from the founders of
21 Linux to its users, and it became very clear very
22 quickly that this program was simply made so that
23 they would have a way of viewing DVDs as well,
24 since they were not granted a license to have a DVD
25 player on their machines.
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2 Q. Do you know if there is a Linux-based
3 DVD player that existed?
4 A. I had heard there is something being
5 developed that was not open source. It was closed
6 source. But it was something that was being
7 developed.
8 Q. Why do you say the purpose of DeCSS was
9 to allow DVDs to be played in a Linux-based player
10 if there is no Linux-based player?
11 MR. GARBUS: Objection as to form.
12 A. Because by using DeCSS you would have a
13 Linux-based player, which previously did not exist.
14 In fact, previously was illegal.
15 Q. Do you mean that in order to play the
16 movies you're talking about people are decrypting
17 CSS?
18 A. The only way to play a movie on a Linux
19 machine is to decrypt it so that you can see it on
20 a different platform. The way it had been before,
21 you had to buy a particular operating system or a
22 particular machine that had already been granted a
23 license, which meant that the thousands, millions
24 of people with Linux machines were unable to use
25 DVDs. They had already bought the DVDs. They had
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2 already bought the computers. But they were unable
3 to use them.
4 Q. Is that because the people that held the
5 copyrights to the movies encrypted DVDs so they
6 couldn't be played except on a licensed player?
7 A. My understanding is that they encrypted
8 them and only gave licenses to organizations
9 willing to pay very large fees, and that's
10 basically my understanding of it.
11 Q. Once you decrypt the movie, how can you
12 play it if there's no player?
13 MR. GARBUS: We're talking now about a
14 Linux operating system?
15 MR. GOLD: Yes.
16 MR. GARBUS: Objection to the form of
17 the question.
18 MR. GOLD: Yes, we are talking about
19 Linux.
20 MR. GARBUS: You don't understand the
21 technology, Mr. Gold. I object to the form
22 of the question. It doesn't make sense.
23 Go ahead, answer it.
24 A. Ask it one more time so I'm clear.
25 Q. Once you decrypt the movie how can you
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2 watch it if there's no player?
3 A. My understanding with the way DeCSS
4 works, and I could be wrong because I have never
5 used it myself, is that by using this particular
6 tool you then have a player that will allow you to
7 play the film that you've decrypted.
8 And if that's not the case then there
9 might be another utility out there that does make a
10 player that's a software-based player.
11 Q. You're not sure.
12 A. I am not entirely sure on that, no.
13 Q. When did you first find out as you say
14 that the purpose of DeCSS was to view movies on a
15 Linux player?
16 A. Well, right away we knew that was
17 primary purpose.
18 Q. How did you know?
19 A. By talking to people who were experts in
20 the field of Linux.
21 Q. Who did you talk to?
22 A. I know there are some people involved in
23 the Livid project, L-i-v-i-d, which was a project
24 to make a DVD player for Linux which has been going
25 on for quite some time.
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1 Goldstein
2 Q. My question was who did you talk to,
3 what person did you talk to that gave you --
4 A. I don't know specific names,
5 unfortunately. These are people I talk to either
6 on line or I met briefly at a conference.
7 Q. What is the -- I see. You have no
8 record of the fact that they gave you this
9 information. No written record.
10 A. I have no written record myself, but
11 it's been posted in many public forums.
12 Q. Did you exchange communications with
13 people involved in the Livid project by E-mail?
14 A. I may have at some point last year when
15 it was first unfolding, yes.
16 Q. Do you have those E-mails?
17 A. No.
18 Q. You wiped them out of --
19 A. I don't save outgoing mail and I am very
20 stingy with what I save because I get so much mail.
21 Q. Can it be retrieved from your hard
22 drive?
23 A. No. It was so long ago.
24 Q. For how long can you retrieve messages
25 on your hard drive?
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1 Goldstein
2 A. I have never tried. I mean, it's a
3 Unix-based system. I think it's very -- it's not
4 like the White House. It is very difficult to
5 retrieve something.
6 Q. Is it fair to say you actually don't
7 know whether or not these messages could be
8 retrieved?
9 A. Oh, I am pretty positive they can't be
10 retrieved.
11 Q. When you mean "pretty positive," what
12 does that mean? Not positive or positive?
13 A. Positive.
14 Q. Positive.
15 A. Yes.
16 Q. How did you get to know that it is
17 positive that you can't retrieve messages that are
18 six months old?
19 A. Well, I base that on when I wanted to
20 retrieve things in the past and I asked sysadmins.
21 I asked them can I get this back and they say no
22 way.
23 I imagine that probably holds true no
24 matter what the contents were.
25 Q. And you have no knowledge of anyone on
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2 the Livid project that you talked to about DeCSS.
3 A. Not off the top of my head. I mean,
4 it's not that large an organization, so I don't
5 think it's difficult to figure out who --
6 MR. GARBUS: If you leave a space in the
7 deposition, Mr. Goldstein, when he returns
8 the deposition, will see if he can recall
9 any names and will put them in the
10 deposition.
11 MR. GOLD: OK.
12 TO BE FURNISHED: ________________________________
13 __________________________________________________.
14 Q. Do you know any people who belong or who
15 work on the Livid project whether or not you have
16 talked to them?
17 A. Just through a communication and
18 possibly meeting them at a conference.
19 Q. Do you know their names?
20 A. I'd probably remember if I heard them.
21 But I don't remember the names off my head.
22 Q. What is the Livid project?
23 A. As I said, Livid project, my
24 understanding is an ongoing project to make a
25 DVD player for Linux machines.
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2 Q. And they're still at it?
3 A. I believe so.
4 Q. How do you know?
5 A. I've just heard from various public
6 discussions.
7 Q. Prior to your conversations with your
8 attorneys this week, did you believe that you were
9 allowed to post DeCSS or link to other sites
10 posting DeCSS as long as several people downloaded
11 DeCSS to engage in cryptographical research?
12 MR. GARBUS: Can I hear the question
13 again.
14 (A portion of the record was read.)
15 MR. GARBUS: I object to the form of
16 the question. It's several questions in
17 one. Can't you just ask the question
18 simply? There are several different parts
19 of the question, Mr. Gold. Don't you see
20 that?
21 Do you understand the question? Can
22 you answer it?
23 THE WITNESS: I will give it my best
24 shot.
25 A. Basically I think it's not a conditional
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2 thing. When you post something, you post something
3 as long as somebody downloads it for a particular
4 purpose.
5 Our understanding was that it was
6 perfectly OK to post this. Obviously when the
7 injunction happened we stopped posting it. And
8 linking is a completely different issue.
9 Q. So I take it it was not your
10 understanding that you were allowed to post DeCSS
11 as long as several people downloaded CSS to use --
12 downloaded DeCSS --
13 MR. GARBUS: Object to the form of the
14 question.
15 Q. -- in order to engage in cryptographical
16 research?
17 A. I think I answered. I think I
18 answered as best I can. It's not a yes-no
19 question. You have a conditional phrase in there,
20 so --
21 Q. Is it your belief that DeCSS can be made
22 available to anyone in the United States as long as
23 a few people use it for cryptographical research or
24 reverse engineering?
25 MR. GARBUS: I object to the form of
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2 the question. I don't understand it. It's
3 a conditional question. Can't you rephrase
4 the question in an intelligible way?
5 Q. You can answer.
6 A. Again, it is information. We can't put
7 conditions on the exchange of information and say,
8 you can only read this if you're going to use it in
9 a particular way. We put up information on our
10 site and people read it. That's the relationship
11 we have.
12 Q. So your right to post DeCSS doesn't
13 derive from the fact that -- it doesn't derive from
14 how it is used by the end user; is that right?
15 MR. GARBUS: I will object to it.
16 That's not what the witness said. The
17 witness said --
18 MR. GOLD: I don't care what the
19 witness said. I am asking a different
20 question.
21 MR. GARBUS: If you don't care what
22 the witness said, Mr. Gold, then you can't
23 say isn't this -- what you just said. If
24 you're not going to listen to the witness,
25 then don't listen to the witness. But you
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2 can't phrase questions that way. I object
3 to the form of the question. And you know
4 better than that.
5 Q. Do you believe that the end use of DeCSS
6 has nothing to do with the lawfulness of posting
7 it?
8 MR. GARBUS: I object to the form of
9 the question. I object to the question on
10 the grounds that it calls for a legal
11 conclusion. This witness is not a lawyer.
12 Nor should he be asked about questions
13 concerning legal conclusions.
14 If there's anything that in that
15 question that comes as a result of
16 conversations that you and I have had as
17 counsel, namely with respect to legal
18 conclusions, just say it. If you think you
19 can answer the question in some intelligible
20 way, then answer it.
21 THE WITNESS: Could you read back the
22 question, please.
23 MR. GARBUS: Mr. Gold, I don't know
24 what you're doing. These questions are not
25 admissible at a trial. The judge won't let
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2 you ask him. So why ask them here now?
3 (A portion of the record was read.)
4 MR. GARBUS: If you can't answer the
5 question, just say you can't answer the
6 question.
7 A. It's a really hard question for me to
8 answer. I don't think they're related, no.
9 That's my view as a journalist. I am not a legal
10 expert.
11 MR. GOLD: Mr. Garbus, I am going to
12 respectfully request that you cease from
13 directing your witness on how to answer a
14 question. If you wanted to do that before
15 you came here today, you had ample
16 opportunity. If it continues, I will take
17 it to the judge and we'll play the movie.
18 MR. GARBUS: Whatever you want to do
19 is fine.
20 MR. GOLD: I will have to. It's
21 inappropriate.
22 Q. Prior to talking to your lawyer in the
23 last two days did you have an understanding of the
24 meaning of the word "fair use"?
25 A. Yes.
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1 Goldstein
2 Q. Is that an understanding you came to
3 through your profession as a journalist?
4 A. Yes.
5 Q. What was that understanding?
6 A. That it's legal to use bits of
7 copyrighted material for the purpose of describing
8 something, showing an example of something. For
9 instance, even a student presenting something to a
10 class might play something from a videotape for
11 instance. That's fair use. You might see
12 something on television that shows a scene from a
13 particular movie. That's fair use. A parody is
14 fair use.
15 Q. Was it your understanding before you
16 talked to your lawyers in the past two days that
17 fair use only related to using bits of copyrighted
18 work or pieces of copyrighted work but not the
19 whole thing?
20 A. That's my understanding. The whole
21 thing isn't exactly fair use.
22 MR. GOLD: I would like to have this
23 marked as Plaintiffs' Exhibit 2.
24 MR. GOLD: A document which on the
25 cover says "2600, The Hacker Quarterly,
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1 Goldstein
2 Volume Seventeen, Number One, Spring 2000."
3 (Plaintiffs' Exhibit 2, Spring 2000
4 issue of 2600, The Hacker Quarterly,
5 magazine, marked for identification, as of
6 this date.)
7 Q. Can you describe that document,
8 Mr. Goldstein?
9 A. Yes. This is the magazine I publish,
10 2600, The Hacker Quarterly. This is the spring
11 2000 edition.
12 Q. On page 7 there is what appears to be a
13 photograph.
14 A. Yes.
15 Q. Is that in fact a photograph?
16 A. It's a doctored photograph. This is --
17 it's parody. It's basically taken from the World
18 Trade Organization demonstrations and you spot MPAA
19 on the back of their jackets.
20 Q. So if you know, is it true that the only
21 thing in this picture that's not true, not actual,
22 are the initials MPAA?
23 A. Well, the initials are --
24 Q. I mean, that's not a photograph of
25 somebody.
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1 Goldstein
2 A. No, as I said, we put MPAA over whatever
3 was there before, if there was anything there
4 before. So no, there were not MPAA storm troopers
5 in the streets.
6 Q. But pictures of these troops or police
7 people, that was an actual photo?
8 A. That was an actual photograph, yes.
9 That was taken in Seattle in November.
10 Q. And in what demonstration did you say?
11 A. World Trade Organization.
12 Q. What was the demonstration about?
13 A. That was demonstration against the World
14 Trade Organization in Seattle. November 30th, I
15 think.
16 Q. In the second paragraph there's some
17 discussion about a Mitnick. I gather that's a
18 Mr. Mitnick? Page 5.
19 A. Yes.
20 Q. Who is he?
21 A. Kevin Mitnick was a computer hacker who
22 had been imprisoned for five years.
23 Q. Do you know what he was convicted of?
24 A. In the end he was convicted of basically
25 misrepresenting himself on the telephone and having
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2 source code that belonged to cellular phone
3 companies that was looking at.
4 Q. Do you know anything about the charge of
5 misrepresenting himself on the telephone?
6 A. It's basically calling someone on the
7 phone saying that you're an employee of a
8 particular company when you're not in order to get
9 some bit of information. That's my understanding
10 of it in his particular case.
11 Q. And that's the only crime you know of
12 that he was convicted of?
13 A. In the end, that's the only crime he was
14 charged with, yes. And that's why we took the case
15 up because we thought it was rather unfair that
16 someone would be locked away for five years for
17 something rather minor.
18 Q. When you say you took the case up, what
19 does that mean?
20 A. As far as writing about it, as far as
21 following it and currently producing a documentary
22 on it.
23 Q. Where did 2600 come from?
24 A. Do you mean the name?
25 Q. Part of the name of The Hacker
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1 Goldstein
2 Quarterly.
3 A. Well, 2600 is a frequency that if you go
4 back into history, back into the early 1960s, when
5 people first started exploring the phone network,
6 the sound of 2600 hertz tones would basically
7 disconnect whatever call you were connected to and
8 put you in what's known as operator mode, where you
9 could basically explore the entire phone network.
10 That was back in the day when there was just one
11 phone network run by AT&T.
12 Q. Could you then make calls without paying
13 for them?
14 A. That was one thing you could do. But
15 you could also explore and talk to operators in
16 various places and just learn how the whole thing
17 was pieced together.
18 That's where the term "phone freaking"
19 was established. That's where a lot of hackers
20 traced their roots to, just exploring one of the
21 first major computer systems in existence.
22 Q. And you adopted the 2600 as your
23 masthead, your banner?
24 A. Yes. Well, the number had some
25 significance and it was rather an unusual name, so
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2 it appealed to us.
3 Q. Were you ever involved in any activity
4 in any way relating to abusing the phone system?
5 A. No.
6 Q. Did you ever make phone calls without
7 paying for them?
8 A. No.
9 MR. GARBUS: Note my objection to the
10 question and the previous question.
11 Q. Have you ever been convicted of any
12 crime?
13 MR. GARBUS: Objection.
14 A. I was -- I had gotten in trouble for
15 computer hacking in 1984, which was the first year
16 our magazine came out.
17 MR. GARBUS: I object to the question.
18 I object to the entire line of inquiry. I
19 think I will direct the witness not to
20 answer unless the judge rules.
21 MR. GOLD: On what ground?
22 MR. GARBUS: I would ask you to go on,
23 and if you can get a ruling from the court
24 that is favorable to you, then he will
25 answer the question. But I think it is
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2 inappropriate.
3 Q. When you used the word "in trouble,"
4 sir, what did that mean to you?
5 MR. GARBUS: I object to the question
6 and direct the witness not to answer until
7 such time as the court rules.
8 Q. May I see that for a second, sir?
9 A. Sure.
10 Q. Thank you. Turning to page 6 of the
11 document, the right-hand column, about in the
12 middle of the paragraph, which is the last full
13 paragraph on the page, the following words are
14 written: Quote, So under the DMCA it is illegal to
15 play your DVD on your computer if your computer
16 isn't licensed for it, close quote.
17 MR. GARBUS: Excuse me. I don't see
18 where you are.
19 MR. GOLD: You don't see the language?
20 MR. GARBUS: Oh, I see. I have it
21 now.
22 Q. Is that true?
23 A. That's, um --
24 MR. GARBUS: I object to it. It's a
25 legal conclusion.
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1 Goldstein
2 A. That's my understanding. I mean, I
3 wrote that piece, so....
4 Q. What is that, sir?
5 A. I wrote that piece, so that is my
6 understanding, yes.
7 Q. How did you come to that understanding?
8 MR. GARBUS: I will object to it. I
9 think I will direct the witness not to
10 answer. It is a legal conclusion. If the
11 judge directs him to answer, then he will
12 answer the question.
13 Q. The next sentence, states, quote, "It's
14 illegal for you to figure out a way to play a
15 European DVD on your TV set." Is that true?
16 MR. GARBUS: I will object to the
17 question, direct the witness not to answer.
18 Calls for a conclusion of law. If the judge
19 directs a journalist to answer about
20 something that he has written, then of
21 course he will answer it.
22 Q. The last sentence says, "if you rent a
23 DVD" -- I think it says, "And if you rent a DVD
24 from your local video store, figuring out a way to
25 bypass the commercials in the beginning could land
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2 you in court or even prison." Is that true?
3 MR. GARBUS: I direct the witness not
4 to answer. It calls for a legal conclusion.
5 To the extent that it is based on
6 conversations with counsel, it comes within
7 the privilege. If the judge decides that
8 the privilege doesn't apply or that he
9 should answer the question, then he
10 certainly will.
11 Q. I believe, Mr. Goldstein, that you wrote
12 this piece that we're now --
13 A. Yes.
14 Q. -- making some kind of fair use of?
15 A. Yes. You can make copies of it.
16 That's perfectly OK.
17 Q. Thank you, sir.
18 A. Sure. Now, if that was a DVD, you might
19 have some trouble.
20 Q. What's that, sir?
21 A. If that was a DVD it might be a
22 different story.
23 Q. Do you mean if anyone makes a copy of a
24 DVD he would violate the law?
25 MR. GARBUS: I will object to the
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2 question.
3 Q. Do you believe that, sir?
4 MR. GARBUS: I will object to the
5 question. 2600 wouldn't sue. DVD might
6 sue. MPA might sue. It is not just a
7 question of the law. I direct the witness
8 not to answer.
9 Q. At the end of that page, the following
10 is contained: "The world the MPAA and
11 megacorporations want us to live in is a living
12 hell." What do you mean by "living hell"?
13 A. Well, what we're going through right now
14 is kind of a living hell. I see that happening to
15 a lot more people.
16 Q. So the only thing you meant by "living
17 hell" was that the MPAA would cause suits to be
18 brought against people it thought were violating
19 the law?
20 A. I believe Jack Valenti said they'd file
21 a thousand lawsuits a day if necessary.
22 Q. Against people who violate the law?
23 A. Against people they feel like filing
24 suits against.
25 Q. Is that what he said or did you just
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2 make that up?
3 A. Not the last part, but he did say a
4 thousand lawsuits a day. That was accurate.
5 Q. Was he talking about law breakers?
6 MR. GARBUS: I will object to it.
7 Q. Did you understand that he was talking
8 about law breakers?
9 A. I don't really know what he was talking
10 about to be honest. He basically seemed to think
11 that lots of people are law breakers without really
12 describing how they broke the law.
13 MR. GARBUS: Can we take our morning
14 break now? It's 11:30.
15 MR. GOLD: Sure.
16 THE VIDEOGRAPHER: The time is 11:22
17 a.m. We're going off the record.
18 (A recess was taken.)
19 THE VIDEOGRAPHER: The time is 11:40
20 a.m. We're back on record.
21 MR. GARBUS: I am going to withdraw my
22 objection to your question about the 1984
23 incident. If you want to pursue it, you can
24 pursue it. I don't think it is appropriate.
25 If you want to pursue it, I think you should
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2 pursue it.
3 BY MR. GOLD:
4 Q. You referred, I believe, to getting in
5 some trouble in 1984.
6 A. Yes.
7 Q. What was that about?
8 A. It involved one of the first cases of
9 computer hacking. Basically there was a system,
10 still is a system known as Telenet, where basically
11 it was protected with one-letter passwords, the
12 letter A. And a lot of organizations were wide
13 open -- Raytheon, Coca-Cola, in fact, even the
14 Executive Office of the President.
15 And when they finally discovered that
16 their system was wide open, I basically came
17 forward and explained it to them. I was indicted,
18 but I think I was dealt with fairly. I paid
19 restitution and was on probation. I never did it
20 again. And from that point I've tried to set a
21 good example through the magazine. So people don't
22 make that kind of mistake and so that they are
23 dealt with fairly if they do.
24 Q. Did you plead guilty to some charge?
25 A. I believe back then it was wire fraud,
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2 yeah. It was -- basically I explained how the
3 system worked to them and I think they benefitted
4 from that.
5 MR. GARBUS: You should know,
6 Mr. Gold, my understanding is the file was
7 sealed and that none of this is a matter of
8 public record. I would expect you to treat
9 the record appropriately on your own motion.
10 MR. GOLD: Certainly.
11 MR. GARBUS: My understanding also is,
12 and I could be wrong, that he was given an
13 ACD, which is an adjournment in
14 contemplation of dismissal or the equivalent
15 of it. So that the record was sealed and
16 charges against him were dismissed.
17 Now, I have not seen, because it's not
18 public knowledge, what the record is. So
19 again, I would ask you to deal with this
20 transcript appropriately. I didn't want to
21 get put into the position, Mr. Goldstein
22 didn't want to be put in the position of
23 having not to answer any question you
24 raised.
25 But the fact that the file is sealed
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2 it seems to me is of significance.
3 MR. GOLD: Just so that we understand,
4 I gather what you're asking me is to show
5 this only to other lawyers working on the
6 case and including lawyers at MPA working on
7 the case.
8 MR. GARBUS: No, I am asking you to
9 use your judgment as to how you deal with
10 this appropriately.
11 MR. GOLD: Well, let me tell you what
12 I think I am going to do, because we'll send
13 the transcript to lawyers for the companies,
14 to lawyers for the MPA, and to lawyers here,
15 and we'll use it in court.
16 Is there anything about that that you
17 find inappropriate so I can consider it?
18 MR. GARBUS: I will take it under
19 advisement.
20 MR. HERNSTADT: We'll designate it in
21 the ordinary course.
22 MR. GOLD: Just tell me what you mean
23 and what you want and if it doesn't block me
24 from what I am doing, that's what I will do,
25 is all I am asking. I have no interest in
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2 anything else but this case, and ....
3 BY MR. GOLD:
4 Q. When you use the word "hacking," what
5 does that mean? As you use it, sir.
6 A. My definition of hacking is basically a
7 form of asking a lot of questions, experimenting
8 with technology, basically twiddling with something
9 till you get it to work just right. Hacking can
10 encompass any number of things, things that are in
11 your own house, things that you encounter on a
12 day-to-day basis.
13 Q. So it doesn't necessarily involve
14 breaking into somebody else's computer system?
15 A. Not at all. That's a media definition.
16 That's how the media has distorted the word over
17 the past decade or so. But the real world of
18 hacking, I think if you go through our pages you
19 will see that it encompasses quite a bit more. Not
20 just things like that.
21 Q. What would it include, if you can give
22 us an example?
23 A. For instance, your own computer, there's
24 a world of things you can hack in your own
25 computer. Your own telephone, there's ways of
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2 figuring out how to dial certain things. You know,
3 only simpleminded people think it's just to get a
4 free phone call.
5 No, there are things hidden within the
6 switch. For instance, there is a number you dial
7 to read back your phone number. And it's always
8 considered a triumph when you figure out what that
9 number is.
10 To most people hacking is a big waste of
11 time because there is no immediate payoff. That's
12 something only people who are hackers understand,
13 the thrill of figuring something out.
14 I should say also a lot of journalists
15 have the same thrill, when they figure something
16 out, when they chase down a source or uncover
17 something no one else has uncovered. So I think
18 the two are very tightly combined. The fact that
19 I'm both a hacker and a journalist, you know,
20 there's a lot to talk about.
21 Q. Is the next chapter a regular piece in
22 all issues of 2600?
23 A. You mean our editorial.
24 Q. Is that your editorial?
25 A. Yes. The editorial is always the first
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2 thing that appears after the staff box.
3 Q. And you write all of the editorials?
4 A. Yes, I write the editorial.
5 Q. Do I take it as far as you know all
6 statements made in your editorials are true?
7 MR. GARBUS: I will object to that.
8 A. It's my opinion.
9 Q. Based on your information and belief?
10 A. Based on my opinion as journalist what I
11 say is true.
12 MR. GARBUS: When a journalist calls
13 Bush a crook or a journalist says that
14 Clinton is a felon, it doesn't necessarily
15 mean he has been adjudicated a crook or
16 adjudicated a felon.
17 MR. GOLD: That was very interesting,
18 Mr. Gorbus.
19 MR. GARBUS: The name is Garbus. You
20 said Gorbus. Garbus.
21 MR. GOLD: I said what? But if I can,
22 Mr. Garbus, may I just on this record ask
23 questions to your witness and have him
24 answer it and have you withhold all of your
25 learning about whatever it is?
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2 Q. Is it your belief that journalists have
3 any special exemptions from the law that applies to
4 everyone else?
5 A. No.
6 Q. Can I see that?
7 A. Sure.
8 Q. Thank you, sir. Reading a sentence at
9 page 6, right-hand side, it's in the second full
10 paragraph. The second sentence says, referring
11 to -- well, the paragraph begins, "The MPAA is
12 coming at us using a very scary piece of law that
13 civil libertarians have been wanting to challenge
14 since its inception."
15 Do you see that?
16 A. Yes.
17 Q. What is it that you mean when you say
18 civil libertarians have been wanting to challenge?
19 What is it they have been wanting to challenge?
20 MR. GARBUS: I object. It says what
21 it says. He is not an interpreter. He
22 wrote it.
23 Go ahead. Answer the question.
24 A. Basically it's the Digital Millennium
25 Copyright Act that people such as civil
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2 libertarians in the Electronic Frontier Foundation
3 as well as the ACLU have been wanting to challenge
4 and I believe now they are challenging it because --
5 I am not a lawyer, but as a journalist I see
6 problems with the way it's written and with
7 basically ways it can be abused.
8 Q. What are the problems that you see?
9 A. Well, for instance, this whole thing
10 here is based on an interpretation of the DMCA,
11 which I don't think was the intention of the people
12 who wrote the DMCA.
13 Q. Which part of it?
14 A. Basically that would make someone
15 subject to lawsuits if they figure out how
16 something works. You know, it seems to me to be
17 something that's a pretty ingrained part of our
18 society where you're allowed to talk about things,
19 figure things out, spread information. We know
20 theft is wrong. We know taking something that
21 doesn't belong to you is wrong or misrepresenting
22 yourself is wrong.
23 But that's not what this is about. This
24 is about figuring out how technology works and
25 being told that that's wrong, and that's where I
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2 have a problem with it. But again, I have to
3 stress, I am not a lawyer. I am speaking as a
4 journalist. That's my opinion on it.
5 Q. Are you involved in figuring out what
6 DeCSS means?
7 A. Well, in addition to not being a lawyer,
8 I am also not an engineer.
9 MR. GARBUS: Object to the form of the
10 question.
11 A. I know many people who are engineers and
12 I respect what they do, and I believe I defend what
13 they do in my pages.
14 Q. Who is it by name, if you can, if you
15 know who is trying to figure out what DeCSS means?
16 A. Do you mean who is trying to --
17 MR. GARBUS: I object to form of the
18 question. I also object to all these
19 questions that call for his legal
20 conclusion. The witness is stating his
21 opinion as a journalist and not his position
22 in the lawsuit.
23 MR. GOLD: Oh, I thought you said
24 physician.
25 A. Do you mean who is trying to figure
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2 out CSS? Because DeCSS is --
3 Q. Who is trying to figure out CSS? Thank
4 you. You're right.
5 A. A lot of people. I mean, like I
6 mentioned the people in the Linux world. People
7 in -- I believe in the Livid project as well,
8 although they were basically trying to create a
9 Linux player. A lot of people have gotten very
10 interested in how encryption works over the years.
11 Encryption is a very important thing.
12 It's our key to privacy. It's traditional in the
13 hacker world when encryption goes back, you tell
14 people about it. Because that way the next bit of
15 encryption is a lot more secure.
16 I think also what you're seeing here, a
17 lot of people think it would be wrong not to tell
18 people when encryption doesn't work, as is the case
19 with CSS.
20 Q. In the last answer that you gave, when
21 you used the word, quote, a lot of people, what did
22 you mean?
23 A. A lot of people in the community, in the
24 Linux community. People on public forums such as
25 Slash Dot. Basically people on the Net who know
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2 what they are talking about. People who run
3 businesses, people who are engineers, scientists,
4 you name it.
5 Q. Do you know how many?
6 A. Thousands.
7 Q. How do you know that?
8 A. I see The Post. You know, we -- we talk
9 to these people at meetings, at conferences. It's
10 a lot of people. And also a lot of people who
11 don't have knowledge that understand the
12 journalistic implications here.
13 So it's really helped us reach out to a
14 lot of people.
15 Q. In the second sentence of the same
16 paragraph you wrote the following: "It's called
17 the Digital Millennium Copyright Act and it
18 basically makes it illegal to reverse engineer
19 technology."
20 Is that your understanding?
21 A. That's my understanding based on this
22 lawsuit.
23 Q. You think that's what this lawsuit is
24 about?
25 A. It appears that way to me. Because
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2 DeCSS was written for reverse engineering purposes.
3 So if that's found to be illegal then under the
4 DMCA.
5 Q. The next sentence says, "this means
6 you're not allowed to take things apart and figure
7 out how they work if the corporate entities
8 involved don't want you to."
9 Is that true?
10 A. That's based on my previous thought,
11 that if that is in fact proven to be the case, then
12 yes, that's how it will be decided.
13 Q. And that's what this lawsuit is about as
14 far as you know?
15 A. That's what it looks like to me, yes.
16 Q. Are there monthly 2600 meetings?
17 A. Yes. We meet on the first Friday of
18 every month in cities. In fact, if you look on
19 page 58, it's a list of all the cities we have
20 meetings in around the world.
21 Q. When say "we," who are you talking
22 about?
23 A. 2600, the magazine, a very loosely based
24 group of people that have similar ideologies on
25 things.
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2 Q. These meetings are held where?
3 A. Various public gathering places. For
4 instance, in New York, in the lobby of Citicorp.
5 Q. Who comes to them? Subscribers to 2600?
6 A. Everyone is welcome. Basically
7 subscribers, passersby, businessmen, kids,
8 governmental agents. You name it. We get all
9 kinds of people.
10 Q. Are any minutes taken of these meetings?
11 A. No, perhaps "meeting" is the wrong word
12 in this context. "Gathering" is probably a better
13 word for your understanding.
14 There is no agenda. There is no one
15 person speaking to everybody. It is kind of -- we
16 think of it as kind of similar to what the Internet
17 world is like where everybody has an equal voice,
18 you talk to whoever you want to talk to. If you
19 want to be anonymous, you be anonymous.
20 But basically, we respect each other.
21 We don't break any laws. We basically exchange
22 information, talk, learn about things. We have
23 been having meetings since 1987.
24 Q. Would it be correct to say that
25 everybody comes to one place and sort of hangs? Is
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2 that what you mean?
3 A. Pretty much, yeah.
4 Q. No speeches.
5 A. No. Not that I know of, anyway.
6 Q. What reverse engineering purposes was
7 DeCSS written for?
8 A. By reverse engineering CSS it became
9 possible to make DVDs playable on other operating
10 systems besides Microsoft, McIntosh, both for
11 operating systems like Linux and future operating
12 systems that have not yet been written and may not
13 have ever been written. Because if your operating
14 system can't do something basic like play a DVD,
15 it's not going to be very popular.
16 Q. How was CSS cracked?
17 A. Again, I am not an engineer. My
18 understanding is that one of the companies that was
19 licensed was -- hadn't encrypted their copy of CSS,
20 which made it possible to reverse engineer it based
21 on that. So it was basically their
22 irresponsibility that led to this.
23 Q. So is it true the fact that it was
24 cracked didn't relate to how strong or weak it was?
25 A. It still had to be figured out after
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2 that. It was -- it probably made it easier the
3 fact that they didn't encrypt their copy of it.
4 But there's -- our basic view is that
5 any form of encryption will be eventually cracked
6 and you have to live your life realizing that and
7 always be prepared to improve your encryption.
8 Q. Is that why you say that CSS was a weak
9 system?
10 MR. GARBUS: Objection. That's not
11 what he said.
12 A. That's not --
13 Q. I asked you a question.
14 A. That's not why I say that it's -- I
15 believe CSS was weak based on what I was told by
16 engineers. But I think it would have been -- it
17 would have been cracked whether or not that company
18 had an unencrypted copy or not.
19 Q. It would have been cracked sooner or
20 later.
21 A. Sooner or later, yes, as any encryption
22 will be.
23 Q. How long had CSS existed before one of
24 its users didn't encrypt a DVD with it?
25 MR. GARBUS: Object to the form of the
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2 question. He already testified in '97. But
3 your question is a bad question. With all
4 due respect, Mr. Gold, I don't think you
5 understand the technology.
6 MR. GOLD: Who cares what you think?
7 Don't be impolite. I find it very
8 offensive.
9 I'll take a test with you sometime
10 after the case is over. Is that the sort of
11 competition you have in mind?
12 MR. GARBUS: Go ahead.
13 THE WITNESS: Maybe you can read back
14 the question. I got distracted.
15 (A portion of the record was read.)
16 A. CSS existed ever since DVDs were
17 released, to my understanding.
18 Q. Approximately how long?
19 A. I would say DVDs were probably released
20 I think probably around '95/'96. Again, I am not
21 entirely certain about this. But -- and also, I'm
22 presuming that the company -- I believe its name is
23 Xing, X-i-n-g, hadn't been encrypting all along, so
24 that may or may not be true, but that's my
25 understanding.
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2 Q. So CSS was out there for four to five
3 years before it was cracked?
4 A. It may have been. Again, this is not
5 something that I am an expert in. They may have
6 been a fairly new company that had just started
7 using it and maybe they were only doing it for six
8 months. I don't know the facts in this.
9 Q. Is the fact that CSS was being used for
10 four to five years and then it was cracked in the
11 way that you've described, a reason why you say
12 that CSS is weak or was weak?
13 MR. GARBUS: I object to it. That's
14 not what he said.
15 MR. GOLD: That's why I asked him is
16 that true.
17 MR. GARBUS: You're misstating the
18 witness's testimony.
19 MR. GOLD: Would you read the question
20 back to the witness.
21 (A portion of the record was read.)
22 A. I am not certain it was being used
23 that long. And I am also not certain how long it
24 existed in an insecure state so that it could be
25 cracked quicker. I also don't know how long people
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2 were actively trying to do this.
3 While DVDs were released several years
4 ago, DVDs on computers are a fairly new phenomenon.
5 So I don't think very many people in the Linux
6 community would be trying four years ago to crack
7 this. I think once they set their minds to the, it
8 wasn't very difficult.
9 Q. But they didn't do it without someone
10 failing to encrypt.
11 A. That helped. I don't think it would
12 have prevented things in the end.
13 Q. What do you mean by, quote, in the end?
14 A. I think it would have been -- one thing,
15 the encryption was developed in a closed
16 environment. If you want good encryption you
17 develop it in an open environment so people can
18 test it before it actually goes on the market.
19 CSS was developed so that nobody really
20 knew the equation, and thus they didn't have a
21 chance to really test it amongst the people who
22 would figure it out. So I think that was a big
23 disadvantage that they had, and that's something
24 the open source community has always supported is
25 openly developing these things. So ironically they
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2 would have had a more secure encryption standard
3 had they consulted with these people.
4 MR. HERNSTADT: Off the record.
5 (Discussion off the record.)
6 MR. GOLD: I would like to have this
7 marked as Plaintiffs' Exhibit 3.
8 (Plaintiffs' Exhibit 3, document
9 headed "2600/News Archive, Page 1 of 2,"
10 marked for identification, as of this date.)
11 Q. Is this a news story you wrote and put
12 on the 2600 web site?
13 A. Just trying to determine if this is one
14 of the ones I wrote. I definitely approved it and
15 put it on the 2600 web site.
16 Q. Well, take your time and read it and see
17 if you wrote it.
18 MR. GOLD: I don't think it's
19 appropriate to talk to the witness,
20 Mr. Garbus, in between a question and an
21 answer.
22 A. I believe this was one of Macki's. It's
23 based on the phraseology.
24 Q. Who is Macki?
25 A. Macki is our webmaster. But I read this
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2 and approved it.
3 Q. Did you believe it true when you read
4 it?
5 A. I believed it true when I read it, yes.
6 There are a couple of technical issues here that
7 have since been proven to be inaccurate. I think
8 that goes to show that even we didn't have a
9 complete understanding of the technology at the
10 time.
11 Q. What in this article do you now believe
12 was incorrect?
13 A. There is one part here, I think it's the
14 third paragraph down, under the date, where it says
15 that this facilitated the copying of DVDs.
16 Again, it's the nature of the Net, when
17 something is released, that people don't always
18 have the complete facts. And when we researched
19 this more afterwards, and you will find this in
20 later news articles, we realized that it was not
21 about copying DVDs. We were kind of taken in at
22 the beginning too. It's not about that at all.
23 Q. What sentence were you reading from?
24 A. I am reading the first sentence in the
25 third paragraph.
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2 Q. "As a result they were able to create
3 DeCSS --
4 A. Yes.
5 Q. "-- a free DVD decoder, that not only
6 facilitated the creation of previously unavailable
7 open source DVD players for Linux -- also allowed
8 people to copies DVDs."
9 Are you now saying that any part of that
10 sentence is incorrect?
11 A. The last part of that sentence is
12 incorrect, because as we --
13 Q. Which part? Do you mean the "also
14 allowed people to copy"?
15 A. Yes.
16 Q. Is it a fact that the free DVD decoder
17 that you talked about at the beginning of the
18 paragraph in fact did allow people to copy DVDs?
19 A. No, the fact is that DVDs have always
20 been able to be copied. The only thing that DeCSS
21 does is allow them to be played on a different
22 platform.
23 Q. And it's your testimony that DeCSS does
24 not decrypt?
25 A. DeCSS does decrypt. It does not make it
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2 any easier to copy. It allows you to be able to
3 view it on the platform of your choice.
4 Q. When you decrypt DVD is a copy made on
5 your hard drive?
6 A. I have never used the program.
7 Q. So you don't know.
8 A. I don't know if a copy is made on your
9 computer. I don't know anybody with the size of a
10 computer that would be able to hold an entire DVD.
11 It's an incredible --
12 Q. So what you're saying is you don't know
13 whether or not a copy of the DVD is made when you
14 decrypt it on your hard drive.
15 A. I don't know for sure. I think it is
16 irrelevant because --
17 Q. Before we get to the irrelevant part,
18 how can you say that no copies are made unless you
19 know that DeCSS does not put a copy on your hard
20 drive when you decrypt it?
21 MR. GARBUS: I object to the form of
22 the question. You're misstating the
23 witness's testimony. You are not
24 understanding the technology. I will allow
25 the witness to answer the question if he
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2 can.
3 A. I will try to explain this. Basically
4 copying of DVDs has been going on since virtually
5 day one. When you copy a DVD, you're copying
6 something that's encrypted, and as long as you have
7 a player, the player doesn't care if it's a copy or
8 if it's the original.
9 Whether or not you copy something that
10 is unencrypted on to your hard drive or encrypted,
11 it doesn't make any difference. If DeCSS allowed
12 you to copy the unencrypted file on to your hard
13 drive, it's no different than copying the encrypted
14 file on to your hard drive, because what CSS did
15 was decrypt that. All you needed was a valid
16 player and that would allow you to view an
17 encrypted file.
18 So again, I am not -- I have never used
19 it. I don't know anybody who has used it. I don't
20 know anybody who would have the hard drive space to
21 hold an entire DVD. But even if it was possible,
22 and I stress "if," it wouldn't make a difference
23 because you can still play an encrypted DVD using a
24 valid CSS player as has been done for years.
25 Q. But you've got to first decrypt the DVD.
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2 A. CSS decrypts the DVD.
3 Q. Do you believe that that's true?
4 A. Yes, that's the purpose of it. It's in
5 every DVD player, whether it's on an operating
6 system, whether it's a stand alone unit, the copy
7 of CSS that's in there is what decrypts the DVD.
8 And that's why I say that if you make a
9 bit by bit copy of an illegal DVD like, say, from
10 Asia or something like that, as has been done for
11 years, it's not going to know the difference. It
12 will see the encryption and decrypt it whether it's
13 a copy or the original.
14 And that's why I say it's irrelevant
15 whether or not -- whether or not you have an
16 unencrypted copy on your hard drive, because you
17 can still just as easily, even easier in fact,
18 decrypt an encrypted copy.
19 Q. So then I take it you don't know one way
20 or the other whether when you decrypt a DVD a copy
21 is put on the hard drive.
22 A. I don't know since I have never done it.
23 Q. Now, at the end of that same paragraph
24 there's a reference to, quote, antiquated
25 encryption export laws, close quote.
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2 What does that mean?
3 A. I believe that refers to the fact that
4 there are strict limitations on encryption that we
5 export from this country, and because DVDs are
6 exported overseas, an artificially weak encryption
7 was used.
8 Q. Because of this law?
9 A. Because of a law. I am not sure which
10 law it is, that considers encryption an armament
11 and basically forced them to encrypt in a rather
12 weak state. Something I don't think anybody who
13 knew what they were doing would be happy with. And
14 that of course led to it being cracked a lot
15 earlier.
16 Q. On the same document, sir, the last
17 sentence on page 1, begins, quote, That is why we
18 feel it's necessary to preserve this information,
19 period. We do feel sympathy for the DVD industry
20 now that their encryption has been cracked.
21 Perhaps they will learn from this, close quote.
22 What learning did you have in mind?
23 A. Well, it was our hope that they would go
24 on and come up with a better way of encrypting DVDs
25 and learn from the mistakes they made and not
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2 continue to go after people. And though I should
3 stress that this article is before any papers were
4 filed against us. Obviously they didn't follow
5 that.
6 Q. So do you feel or do you believe that
7 part of the use of DeCSS is to teach the movie
8 companies that they have got to make tougher
9 protective devices around their copyrighted work?
10 MR. GARBUS: I object to the form of
11 the question.
12 A. I don't think anyone went out and said
13 let's teach them a lesson. I think basically this
14 is something that happened in the natural course of
15 things, and I think it's an opportunity to learn
16 that's being wasted.
17 Q. Is the export law you talked about in
18 the preceding paragraph still in effect?
19 MR. GARBUS: I will object to....
20 A. Again, I didn't write this article and I
21 am not an expert on law, but I do recall hearing
22 sometime in the recent past that Clinton relaxed
23 some export regulations.
24 Q. And that may or may not be one of them.
25 A. It might be.
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2 Q. I see.
3 Do you consider yourself a hacker?
4 A. Yes.
5 Q. Did you or any other hacker you know --
6 MR. GARBUS: I object to the question.
7 The way he defines hacker.
8 A. The way I define hacker obviously.
9 MR. GARBUS: In other words, the way
10 he's defined hacker he considers himself a
11 hacker.
12 MR. GOLD: Which shows that you were
13 listening.
14 Q. Did you or any other hacker contact the
15 movie industry or Matsushita for the DVD CCA to
16 discuss the findings of the DeCSS creators?
17 MR. GARBUS: I object to the form of
18 the question.
19 Q. The question was did you or any other
20 hacker you know of contact the movie industry or
21 Matsushita or the DVD CCA to discuss the findings
22 of the DeCSS creators?
23 MR. GARBUS: I object to the form of
24 the question. If the witness can answer I
25 will let him answer.
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2 A. Back when this happened, which was early
3 November of 1999, I had never even heard of the DVD
4 CCA, so contacting them wouldn't have even come to
5 mind.
6 We were reporting this as journalists.
7 We were reporting facts. The facts were this was --
8 this happened, this was cracked. And that's what
9 we printed on our pages, that it was cracked.
10 Q. But if a purpose of the cracking was to
11 teach them that they had to make a stronger
12 protective mechanism to protect their copyrighted
13 work, why wouldn't you or someone else involved
14 with DeCSS call them and tell them that?
15 A. I imagine they were contacted.
16 MR. GARBUS: I will object to the form
17 of the question. The New York Times printed
18 it. The San Jose Mercury News printed it.
19 To my knowledge no newspaper reported it.
20 That's not his function. Object to the form
21 of the question.
22 MR. GOLD: Read the question and let
23 the witness answer it.
24 (A portion of the record was read.)
25 A. I believe I said I mentioned they were
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2 contacted at the time.
3 Q. By whom?
4 A. By, well, at this point it was pretty
5 widely reported throughout the Internet. So for
6 them not to know about it I think would be very
7 unusual.
8 Again, we were reporting something that
9 happened. It wasn't our place to go around and
10 make sure that everybody knew about it. It was a
11 fact. We were reporting it. We weren't involved
12 at that point. It was just something interesting
13 that we were following.
14 Q. At the beginning of the deposition or
15 maybe before it started I asked you which name that
16 you would be comfortable that I used, and I think
17 you told me Emmanuel Goldstein.
18 A. As you said, either name is fine.
19 Emmanuel is the name I am known by by most people.
20 Q. What is your legal name?
21 A. Eric Corley is what I was born with.
22 Q. And you never officially changed it.
23 A. No, that's still my legal name.
24 MR. GOLD: I gather there is no
25 objection here with respect to the fact that
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2 he wasn't sworn as Mr. Corley. He was sworn
3 as Mr. Goldstein.
4 MR. GARBUS: That's fine.
5 Q. Were you raised in New York?
6 A. Yes.
7 Q. Which high school did you go to?
8 A. Ward Melville High School in East
9 Setauket, New York.
10 Q. Did you attend college?
11 A. Yes, State University of New York at
12 Stony Brook.
13 Q. What did you major in?
14 A. I was an English major.
15 Q. Did you attend school after you
16 graduated?
17 A. No, I did not.
18 Q. Did you graduate?
19 A. Yes.
20 Q. Did there come a time you began working?
21 A. Yes, I worked in numerous capacities for
22 newspapers and....
23 Q. Which newspapers, and to the best you
24 can, what dates?
25 A. Well, I worked for a newspaper on campus
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2 known as the Stony Brook Press both as an unpaid
3 writer and a paid typesetter, and then I continued
4 working as a typesetter for a local community paper
5 known as the Village Times. And that's when I
6 began publishing my own publication as well.
7 And the rest is pretty much history.
8 Q. Do you receive remuneration from 2600?
9 A. Yes, that's my full-time job now.
10 Q. Is that your sole source of
11 remuneration?
12 A. Right now, yes.
13 Q. Is it correct that the Village Times and
14 then your own publication are the two jobs you had
15 since graduating?
16 A. Going back a long ways, so -- I believe
17 so. I believe that's where I was working right
18 after graduation. I mean, I had part-time jobs
19 before then, but as far as I know, that's -- yeah,
20 that's what I had afterwards.
21 Q. And your home address is what?
22 A. 7 Strongs Lane. That's S-t-r-o-n-g-s.
23 Also Setauket.
24 Q. And I gather your business address is in
25 the magazine somewhere?
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2 A. Yes.
3 Q. In this 2600 Hack Reporter?
4 A. Yes, on page 3, I think.
5 Q. When was 2600 Enterprises Inc.
6 incorporated?
7 A. To the best of my recollection, in 1984.
8 I don't have the specific date.
9 Q. And it was incorporated in New York?
10 A. In New York, yes.
11 Q. Who are its directors at present?
12 A. I am the sole provider.
13 Q. There is no board of directors?
14 A. No, there is none.
15 Q. Are you the only officer?
16 A. Yes.
17 Q. Does 2600 Enterprises Inc. have any
18 employees?
19 A. We have an office, an office person who
20 enters subscriptions. And anything else is
21 strictly on a per job basis such as if we hire an
22 artist to design a T-shirt, if we pay a printer to
23 print the magazine.
24 Q. Have you had the same printer for
25 several years?
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2 A. Yes.
3 Q. Who is that?
4 A. Portside Graphics in Port Jefferson,
5 New York.
6 Q. What is the name of your office person?
7 A. Her name is Mary, last name Nixdorf,
8 N-i-x-d-o-r-f.
9 Q. Does 2600 have any function other than
10 issuing 2600, The Hacker Quarterly?
11 A. We publish a magazine. That's what we
12 do. Things happen along the way, such as having
13 2600 meetings, but the magazine is really what we
14 do.
15 Even the web site is something that just
16 evolved. As a result, we make no money off the web
17 site. It's just a project that a bunch of people
18 engage in because they want to become involved in
19 that part of technology.
20 Q. Are there other web sites around the
21 country that are affiliated with you?
22 A. The only web site affiliated with us is
23 our web site and one for the upcoming conference
24 known as h2k.net. It is on the same machine. So
25 it's really the same thing.
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2 Q. Is The Hacker Quarterly put in its
3 entirety on your web site?
4 A. No. The web site is a supplement of the
5 magazine. It's not a duplication of the magazine.
6 Q. Each quarter do you put selected
7 portions of The Hacker Quarterly on your web site?
8 A. I would like to, but unfortunately we
9 don't have the staff to sit around scanning and
10 posting. So right now, no. We would like to in
11 the future.
12 Q. So is it rare that you ever put anything
13 that's in The Hacker Quarterly on your web site?
14 MR. GARBUS: Object to the use of the
15 word "rare."
16 A. I don't think we ever duplicate anything
17 other than the covers on the web site. Not to my
18 recollection.
19 Q. Except in this lawsuit, have you or 2600
20 ever been accused of violating anyone's rights in
21 connection with a hack or in connection with the
22 material that you published? Other than this 1984
23 thing that you testified.
24 A. Do you mean have we gotten letters
25 saying that -- threatening letters from lawyers or
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2 have we actually been brought up on charges?
3 Q. Have you actually been brought up on
4 charges?
5 A. No.
6 Q. Have you gotten threatening letters from
7 lawyers?
8 A. We have gotten a few on occasion.
9 Q. How did you get them?
10 A. They were sent to us in the mail.
11 Q. Do they exist now?
12 A. I am not sure what you mean, do they
13 exist now?
14 Q. Do the letters exist now?
15 A. They might be filed someplace. I don't
16 think I could ever find them. We usually print
17 them. So you can find them in the magazine. But
18 nothing up until this point has ever gotten past
19 the first step of a nasty letter being sent.
20 Q. How many issues of this magazine have
21 been published?
22 A. Well, we have been coming out for I
23 guess eighteen years -- well, no. This is Volume
24 17. So seventeen years. So --
25 Q. Seventeen times four would be the
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2 answer?
3 A. We have been quarterly since 1988.
4 Before then we were monthly. So you'll need a
5 calculator.
6 Q. And is it your testimony that you
7 published all these threatening letters from
8 lawyers in one of these issues?
9 A. If we got a letter that was -- we
10 thought was particularly unjust, yes, it's been our
11 policy to show people the kinds of threats that are
12 being made against us.
13 RQ MR. GOLD: I am going to ask for copies
14 of all back issues of 2600 and any of the
15 lawyer letters that Mr. Goldstein might have
16 around his office or in his files.
17 MR. GARBUS: I will see what we have.
18 MR. HERNSTADT: Can I just clarify?
19 Do you want all back issues that have lawyer
20 letters published?
21 MR. GOLD: No.
22 MR. GARBUS: He wants all back issues
23 and any letters that we have.
24 Is that right, Mr. Gold?
25 MR. GOLD: That's right.
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2 MR. HERNSTADT: We'll take it under
3 advisement.
4 MR. GOLD: Can I have this marked as
5 Exhibit 4.
6 (Plaintiffs' Exhibit 4, copy of
7 plaintiffs' first request for production of
8 documents, marked for identification, as of
9 this date.)
10 MR. GOLD: You can take a minute to
11 look through that. I guess we'll change the
12 tape while he is looking.
13 MR. GARBUS: Mr. Gold, I don't know
14 your schedule. As I said, we would be
15 prepared to work through lunch. Because I
16 know you want to finish the deposition. We
17 would also be prepared working till 5.
18 Again, subject to your convenience. Or even
19 work later in the evening to try and give
20 you as much as you can get.
21 MR. GOLD: As you know, we have
22 advised you that the deposition would be
23 today and tomorrow. I think we'll finish
24 tomorrow. I doubt we'll finish today and I
25 do feel that the judge having called a
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2 conference and been kind enough to put it at
3 the end of the day that I should attend it,
4 since I have been involved in writing a few
5 letters to him. And I think the judge might
6 be interested in talking about one or more
7 of them. I think it would be improper for
8 me not to be there.
9 MR. GARBUS: Do you want to have
10 somebody else take over the deposition?
11 MR. GOLD: No, I will stick with what
12 I noticed for today and tomorrow and trust
13 that I'll finish tomorrow.
14 THE VIDEOGRAPHER: The time is 12:28
15 p.m. This completes tape number 1 of the
16 videotape deposition of Mr. Emmanuel
17 Goldstein.
18 (A recess was taken.)
19 THE VIDEOGRAPHER: The 12:34 p.m.
20 This begins tape number 2 of the videotape
21 deposition of Mr. Emmanuel Goldstein.
22 (Mr. Hernstadt not present.)
23 BY MR. GOLD:
24 Q. Mr. Goldstein, have you seen the
25 document just put before you before today?
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2 A. Yes, I have.
3 Q. When was that?
4 A. I believe it was two weeks ago.
5 Q. Did you understand at that time two
6 weeks ago that it called for the production of
7 documents?
8 A. Yes.
9 Q. Did you make any search for the
10 documents requested?
11 A. Oh, yes.
12 Q. Tell us everything you did to search for
13 the documents requested.
14 A. Well, I searched through a pile of
15 papers in the attic and tried to find as much as I
16 could, contacted my accountant, got together back
17 issues you requested.
18 I think that pretty much covers
19 everything. I also searched the computer system
20 that I am on for any E-mail that may have been
21 there or any logs.
22 Q. Did you throw away or dispose of or take
23 out of your hard drive any documents at all from
24 the time you saw this particular document?
25 A. No.
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2 Q. Did you find anything?
3 A. My webmaster found a couple of logs. I
4 believe he forwarded them to our legal team.
5 As far as on the computer system, I
6 searched, I grepped for DeCSS through my E-mail for
7 anything having to do with DeCSS or DVDs. And
8 there was nothing there.
9 I assume anything I get in the future I
10 am supposed to forward.
11 Q. The documents you found you gave to your
12 counsel?
13 A. Yes.
14 MR. GOLD: Mr. Garbus, do you know if
15 those have been supplied to this office?
16 MR. GARBUS: I don't know. I presume
17 Mr. Hernstadt gave you whatever Mr. Goldstein
18 gave him.
19 MS. MILLER: No, we haven't received
20 any documents from --
21 MR. GARBUS: Then I will find out. It
22 came at a bad time. Hernstadt's gone.
23 Whatever Mr. Goldstein gave us that is
24 appropriate we'll certainly give you.
25 Q. Mr. Goldstein, when did you give these
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2 documents to your lawyer?
3 A. I know my financial records arrived last
4 week from my accountant. As far as the things from
5 the web site, I know our webmaster has been in
6 touch with Marty and Ed, our legal team, on that.
7 And as far as anything else, I don't think there
8 was anything else that I can recall.
9 MR. GARBUS: I had understood we had
10 furnished you with approximately two to 300
11 pages of information that is similar to the
12 information that had been in Mr. Goldstein's
13 affidavit on the motion. I had understood
14 it was going to be sent to you by separate
15 letter. We can check that with Mr. Hernstadt.
16 MS. MILLER: OK, because as of last
17 night no one in this office on the team had
18 received any documents. But I appreciate
19 your checking.
20 MR. GARBUS: OK.
21 Q. Mr. Goldstein, do you know any reason
22 why your attorneys wouldn't have turned these over
23 before today?
24 A. I know that my accountant had been away
25 and hadn't gotten my message until last week, so he
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2 wasn't able to FedEx the documents until late last
3 week. So that might be a reason for that.
4 Also, I brought in the back issues you
5 requested. I brought those in today actually. So
6 that's my fault.
7 Q. Turning to page 7, number 1, what
8 documents do you know exist relating in any way to
9 the 2600 dot-com site?
10 A. I am not sure exactly what documents you
11 had in mind. Again, it was something our webmaster
12 was dealing with.
13 As far as documents that are on the
14 site, we're prepared to give you an entire snapshot
15 of the site, which would be every page that is
16 there.
17 Q. And that would include pages relating to
18 what issues?
19 A. Well, the site is not having to do with
20 the issues. The site is the web site. That would
21 include all these articles ever written on the
22 site. That would include -- well, it couldn't
23 include the radio shows that we have up there
24 because that's an audio format. So I don't know
25 how that would work.
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2 Basically a lot documents relating to
3 this case, a lot of documents not relating to this
4 case. If that's what you want, we can furnish you
5 with those as well.
6 Q. When you saw this document and didn't
7 understand what it meant to ask for all documents
8 concerning the 2600 dot-com site, did you put in a
9 call to your lawyers?
10 A. Yes, I talked to my lawyers. I also
11 talked to my webmaster and told them to work it
12 out.
13 Q. Did your lawyers tell you what it meant?
14 A. I believe so. I believe it was --
15 MR. GARBUS: I will object to any
16 conversations between Mr. Goldstein and his
17 lawyers.
18 MR. GOLD: I don't know that this is --
19 instructions on how he was to make the
20 search I think are not privileged.
21 MR. GARBUS: I think the judge should
22 rule on it.
23 MR. GOLD: You don't know that rule.
24 MR. GARBUS: I think the judge should
25 rule on it. I think we may disagree as to
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2 those conversations.
3 MR. GOLD: Are you saying that those
4 are privileged?
5 MR. GARBUS: I am saying if it was a
6 conversation about documents, then some of
7 it may be privileged. Some of it which is
8 just functional may not be privileged. But
9 there may be privileged conversations within
10 that. I would exert the privilege and then
11 you can get a ruling.
12 MR. GOLD: I am just trying to find
13 out what the witness was told about what
14 documents to produce.
15 MR. GARBUS: I presume he was told to
16 produce everything he could.
17 THE WITNESS: Yes, everything I could
18 on the web site. Except there is one big
19 omission. You say all files made available
20 for download from October 1, 1999. You
21 realize we can't give you DeCSS because
22 that's no longer on our site.
23 Q. You say that when you didn't understand
24 what you were to look for with respect to number 1,
25 you called your lawyers.
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2 A. I don't know if I said I didn't
3 understand. Just that I wanted to make sure that I
4 understood correctly that it was basically a
5 snapshot of the entire -- the entire system, which
6 is no problem at all.
7 Q. Did you give that to your lawyers?
8 A. Again, that's something our webmaster
9 would do because he has much better technical
10 knowledge.
11 MR. GARBUS: The webmaster I presume
12 was told to do it or ask for it.
13 THE WITNESS: Yes.
14 Q. When did you tell your webmaster to
15 produce those documents?
16 A. That was shortly after I got this
17 document.
18 Q. Where are they or have they been
19 produced to your lawyers?
20 A. As far as I know, they have been
21 produced.
22 Q. Those are the approximately 300 pages
23 that you were --
24 A. I don't know if it's 300 pages. It's a
25 lot of pages. I am not sure exactly how many.
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2 Q. I see. So did your lawyer define for
3 you what number 1 --
4 MR. GARBUS: You'll get everything
5 that --
6 MR. GOLD: We're waiting, we're
7 waiting, we're waiting.
8 MR. GARBUS: -- that he can download.
9 MR. GOLD: We gave you over 10,000
10 documents and you complain it isn't enough
11 even though you haven't read a tenth of them
12 and we asked you for a couple of documents
13 and they are not here.
14 MR. GARBUS: Mr. Gold, you have made
15 your record.
16 MR. GOLD: What does that mean?
17 MR. GARBUS: My understanding is
18 that --
19 MR. GOLD: I know what your
20 understanding is and I know what you do.
21 MR. GARBUS: Good, so let's move on.
22 BY MR. GOLD:
23 Q. Did your lawyer give you any description
24 of what you should produce with respect to item
25 number 1?
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2 A. I think I already understood what I had
3 to produce.
4 Q. Then why would you have called him to
5 ask him what it means?
6 A. To clarify that I understood correctly.
7 Q. Did you do that with number 2?
8 A. Number 2?
9 Q. Did you clarify what your understanding
10 of what number 2 was?
11 A. Well, number 2 is documents that grant
12 us the right to copy motion pictures, and I know we
13 don't have documents that tell us we can copy
14 motion pictures. So --
15 Q. So you knew what number 2 was and you
16 didn't have to ask; is that right?
17 A. Well, it's pretty obvious those
18 documents didn't exist.
19 Q. When you knew what 1 meant, and since
20 you knew what it meant, why did you have to ask
21 about it?
22 A. To clarify it, to make sure that -- you
23 wanted a copy of everything on the site and that's
24 what we were going to do, and I was going to ask
25 the webmaster to provide you with that.
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2 You should understand the people on our
3 site are basically in school and sometimes they are
4 not easily reachable.
5 We have tried as hard as we can to get
6 these documents, and we wanted to be thorough. We
7 wanted to make sure we didn't just give you a
8 couple of things. We wanted to make sure you got
9 what you were asking for.
10 Q. So does that mean with respect to number
11 1 you have not yet finished contacting all the
12 people you want to contact?
13 A. There's one person and I contacted that
14 person, that's our webmaster.
15 Q. What about all these people you just
16 referred to who work after school?
17 A. I am saying people who I am in contact
18 with, and the webmaster is one of them, they don't
19 have full-time jobs with our site. So I have to
20 find where they are. I have to E-mail them. It
21 might be a couple of days before they get back to
22 me sometimes, but it is our intention to get you
23 every document you asked for.
24 Q. Have you already done that?
25 A. As far as I know, that has already been
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2 submitted. As far as I know.
3 Q. To?
4 A. It's -- I believe it's been E-mailed
5 over to the legal team.
6 Q. Your legal team.
7 A. Yes.
8 Q. Who is on your legal team other than
9 Mr. Garbus and Mr. Hernstadt?
10 A. Those are the two names I know. I know
11 there are more people working on the case.
12 Q. Is it true that 3 would have been a part
13 of number 1, that you have already produced?
14 A. Yes. That's something that I would have
15 immediate control over because you were asking
16 within my possession, and so I did that, that
17 search on my system where I get my E-mail.
18 Q. It would relate to you or the company, I
19 gather.
20 A. Right.
21 Q. And you searched for any possible
22 documents --
23 A. I searched throughout my E-mail.
24 Q. -- that belong to the company.
25 A. If you mean did I search other people's
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2 E-mail, that doesn't belong to the company.
3 Q. What does the word "other people" mean
4 in that?
5 A. The system, 2600 dot-com, is what's
6 known as shell machine. It is used by people who
7 write articles for the magazine. It is used by
8 people who are affiliated one way or another,
9 whether they, you know, they do covers, they're
10 artists, they're writers. They help us out in some
11 way technically. And they each have an account on
12 the machine and they receive E-mail there. They
13 have their files this.
14 And it is not our position to claim
15 ownership over those files, over that E-mail. I
16 know many companies do claim ownership. We just
17 don't subscribe to that philosophy.
18 So the way I took number 3 to mean is
19 that I should look through my possessions, my
20 E-mail, my files for anything having to do with the
21 DeCSS, which is what I did.
22 Q. Can you name the people that you
23 referred to?
24 A. Not all of them.
25 Q. Name as many as you can, sir.
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2 A. We're talking several dozen people here.
3 Q. Take a shot.
4 A. I can give you user names of people, but
5 I can't place names to them. Is that enough for
6 you? Because the way --
7 Q. What's the user name?
8 A. A user name is what you log in as. For
9 instance, my user name is Emmanuel.
10 Q. Why don't people use their real names?
11 A. Well, for one thing, the way the system
12 is set up you can't type in a full name. The way
13 the Net works, people choose handles, and basically
14 it's your identity on that particular computer
15 system. You may choose a different identity on a
16 different system. You may use the same identity
17 everywhere. You may use your real name. People do
18 a lot of mixing and matching.
19 What I would be happy to do is give you
20 a user list on our system. That's not what you
21 asked for. So I didn't provide that. But if
22 that's what you want, I will happily give you
23 that.
24 RQ Q. Thank you. We are requesting it.
25 A. Sure.
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2 Q. And all those names would be on that
3 list?
4 A. The names of the log-in. You have to
5 understand, I don't even know a lot of people's
6 names. I don't need to know. I don't ask.
7 But what I can give you is -- this
8 sounds like something it's not, but I can give you
9 our password file, which basically is a list of all
10 of our users. It doesn't contain the password. It
11 contains the encrypted password, which is a good
12 form of encryption, I believe.
13 MR. GARBUS: I will take this under
14 advisement. It seems to me a press issue
15 here as to exactly what he is turning over
16 and whether a member of the press should be
17 required to turn this over.
18 I will just take it under advisement.
19 I haven't thought out the ramifications of
20 it.
21 Q. The part-time people that work for 2600
22 and who go to school during the day, how many of
23 them are there?
24 A. Well, there are lots of people. I
25 wouldn't say they are part-time employees or
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2 employees in any sense. They are volunteers,
3 people who help out whatever way they can. Whether
4 it's writing an occasional article or submitting
5 something of interest to us or advising us in some
6 way.
7 They're people from all different age
8 groups, all different parts of the world. It's
9 impossible, and I don't think desirable, to know
10 exactly who they are or where they are, what their
11 Social Security number is. It's not what we're
12 about.
13 Q. Do you pay any of them?
14 A. The only people we pay are the office
15 staff and the people who do things like design
16 covers or print the magazine.
17 Q. All the office staff consists of one
18 person?
19 A. One person, yes.
20 Q. So you don't pay any of these part-time
21 people.
22 A. No, we don't consider them part-time
23 people. We consider them volunteers that do what
24 they can when they can.
25 Q. Do any of the volunteers live in the
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2 greater New York area?
3 A. It's possible. I mean, I imagine so.
4 Q. Do you have these volunteers listed
5 somewhere, however you list them?
6 A. We have a staff list which we put in the
7 front of the magazine, and that lists writers --
8 yes, you can get a pretty good sense of who
9 volunteers though, what they do.
10 Q. That would constitute in any one issue
11 about what percentage of the volunteers?
12 A. Actually that's probably more than the
13 people who volunteer that particular time. I mean,
14 at any one time -- for instance, we have a
15 conference coming up in a month. We have a few
16 dozen people who are going to be working different
17 things, whether it be hooking up a network over
18 there, running security, doing various other things
19 that you have to do when there's a conference.
20 Nobody is getting paid to do this. It's something
21 they all want to do.
22 That's something that happens at this
23 particular time because we're doing a conference.
24 What happens in the fall will be completely
25 different. We'll have people who write articles,
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2 people who, you know, who submit various things to
3 the magazine, people who let us know what's going
4 on, tip us off on a story.
5 Q. And the names of every one of these
6 people is listed in at least one issue of your
7 magazine.
8 A. The names they want to go by, yes. We
9 don't require that they give us their real names or
10 that we even know who they really are. It's not
11 our place.
12 Q. Why not?
13 A. We're a magazine. We print information
14 and that's where we draw the line. I mean, if
15 somebody wants to be, you know, known to us, then
16 they will introduce themselves to us. But we're
17 not going to force our way into people's lives and
18 demand to know who they are.
19 Q. The New York Times and Sacramento
20 Journal and all other publications that I know
21 about know who works for them. They have their
22 names. Why wouldn't you?
23 A. We're not The New York Times. We're a
24 magazine dealing with technological issues. Lots
25 of times articles are written by kids, by people
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2 from other countries. We don't run our operation
3 the same way as The New York Times or as many
4 newspapers or magazines. We --
5 Q. What if they -- I am sorry. Did I cut
6 you off?
7 A. We allow people to use what I described
8 before as handles, which is basically you make up
9 your own name. You define yourself. And that's
10 perfectly OK with us.
11 A newspaper like The New York Times,
12 obviously they want your real name because they're
13 paying you. They have to have all your
14 documentation, your Social Security number, all
15 that kind of thing, and that's, you know, that's
16 perfectly OK, but that's not what we do.
17 Q. Well, some of these no-named or
18 fictitious-named people that volunteer write
19 articles, don't they?
20 A. Yes, some people do.
21 Q. And wouldn't you want to know how to
22 find them in case you had a problem because they
23 printed something that was a total lie?
24 A. Well, for someone who writes more than
25 one article we gave them an E-mail address in our
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2 system. So that's how we contact them.
3 Q. And you have a list of those E-mail
4 addresses.
5 A. That's what I was describing before.
6 Q. Can you provide those to us?
7 A. I can provide you with the list of the
8 users on our system, yes.
9 Q. You say you're not interested in the
10 name of anyone who just writes one article for you.
11 MR. GARBUS: That isn't what he said.
12 MR. GOLD: I see.
13 Q. Is that true or false?
14 A. I am not interested in anybody's real
15 name. It's not relevant to what I do. We have
16 people who write letters to the editor and, you
17 know, we don't consider them staff people, but it's
18 something that appears in the magazine as well.
19 Q. Other than letters to the editor, if
20 someone writes a story for you that you print, but
21 they only write one, you don't want anything from
22 them, any way of finding them or contacting them.
23 A. Other than the E-mail address, there's
24 no need. We give people who write to us a free
25 subscription. So that's basically what we do.
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2 Q. So a one-time author, he is lost
3 forever.
4 A. If he doesn't write to us again, yes.
5 Q. Isn't it true that you print the names
6 of people who write letters to the editor?
7 A. We print whatever name they sign. So
8 it's very rare you'll see somebody's real name
9 signed to a letter.
10 Q. That's sent to your publication.
11 A. Right.
12 Q. Do you have any standard procedures you
13 use to check on the truth of articles that you
14 write in your publication?
15 A. Yes. We -- it depends on the article.
16 I mean, there are many different things, but we'll
17 test things out. We'll make sure that the person
18 knows something of what they are talking about,
19 that the system that they are describing really
20 exists, that the theories they are talking about
21 seem to make some sort of sense. It is different
22 with every article.
23 Q. You don't check outside sources, just
24 the writer?
25 MR. GARBUS: Objection.
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2 A. I am not sure what you mean.
3 Q. In terms of your diligence when you're
4 about to print an article, do you do any checking
5 other than with the person who wrote that?
6 A. Oh, of course. To see if they are
7 describing particular computer operating systems,
8 of course we check to see if the operating system
9 exists. We check to see if what they are
10 describing -- many times what people write is
11 theoretical in nature. So we check to see if the
12 theory seems to be a valid theory. Not necessarily
13 whether it will work, but whether it's conceivable.
14 Q. Have you written articles about any of
15 the plaintiffs in the last six months?
16 A. Other than ourselves?
17 Q. Have any articles or writing appeared in
18 2600 about any of the plaintiffs?
19 A. The editorial is what, um, and some
20 letters to the editor.
21 Q. Have you ever checked with any of the
22 plaintiffs about anything you wrote?
23 A. I am not sure what you mean.
24 MR. GARBUS: Object to form.
25 Q. Did you ever call them up?
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2 MR. GARBUS: Whether you check with
3 the MPAA and ask --
4 MR. GOLD: No, I didn't say the MPA.
5 I said any of the plaintiffs.
6 A. Well, what I write is an opinion piece.
7 So --
8 Q. You don't check.
9 A. I don't think I have to check with
10 somebody if I write an opinion piece.
11 Q. Does your opinion piece ever contain any
12 statements of facts?
13 A. It contains my interpretation.
14 Q. Of statements of fact?
15 A. My interpretation of facts, yes.
16 Q. And you believe that they're right?
17 A. My opinion that they are right.
18 Q. Did you ever try to contact any of the
19 movie studios or MPAA about any of the statements
20 you have written in the last year?
21 A. I haven't been writing about the MPAA
22 for a year. Only since they filed suit against us.
23 I don't think it is appropriate for me to be
24 contacting them if they filed suit against me.
25 Q. Who told you that?
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2 A. That's my opinion.
3 Q. So the answer to my question is no?
4 A. Have I contacted them? No.
5 MR. GOLD: Simple. Truth is simple.
6 OK. Have a nice lunch.
7 THE VIDEOGRAPHER: The time is 12:57
8 p.m. we're going off the record.
9 (A luncheon recess was taken at
10 12:57 p.m.)
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2 A F T E R N O O N S E S S I O N
3 (Time noted: 2:08 p.m.)
4 THE VIDEOGRAPHER: The time is 2:08 p.m.
5 We're back on the record.
6 MR. GARBUS: Mr. Gold, let me tell
7 you, I had checked during the intermission.
8 My recollection that we had furnished you
9 with material that comes within point 1 was
10 accurate; namely, that in the affidavit of
11 Emmanuel Goldstein that had been submitted
12 on the motion, we had furnished you, as I
13 understand it, with all documents concerning
14 the 2600 web site as it existed since I
15 think about November 12th.
16 With respect to the other information,
17 we are still trying to get that for you.
18 But my understanding is that that information
19 had been furnished to you a good while ago.
20 MR. GOLD: As an exhibit in
21 Mr. Corley's affidavit?
22 MR. GARBUS: Yes, yes.
23 MR. GOLD: Well, we have that.
24 MR. GARBUS: What I am saying is that
25 has been furnished to you. My understanding
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2 is --
3 MR. GOLD: And this is a room with a
4 table also, but now what about all the
5 documents that the witness gave to you that
6 he said that you said you hadn't produced
7 or that we said you hadn't produced?
8 MR. GARBUS: Mr. Hernstadt as I
9 understood has furnished it to you and
10 you'll presumably get it by today or
11 tomorrow.
12 MR. GOLD: Do you know why it hasn't
13 been produced for the last week?
14 MR. GARBUS: I presume because
15 Mr. Hernstadt has been busy doing other
16 things.
17 MR. GOLD: Instead of producing
18 documents to us. Yes, I would guess that
19 too. I just didn't understand what your
20 statement had to do with the fact that you
21 hadn't produced the documents we were
22 talking about.
23 MR. GARBUS: Because you have to
24 understand that you have 90 percent of the
25 documents.
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2 MR. GOLD: How do you know? You have
3 never seen them, have you?
4 MR. GARBUS: Of course I have.
5 RQ MR. GOLD: Mr. Garbus, we would like to
6 hire an expert and get expert to the
7 witness's hard drive --
8 MR. GARBUS: I will take it under
9 advisement.
10 MR. GOLD: -- for the expert to
11 download certain things that Mr. Goldstein
12 says he can't download.
13 MR. GARBUS: I will take it under
14 advisement.
15 MR. GOLD: When will you tell us?
16 Because I would like to know tomorrow.
17 MR. GARBUS: I will try to tell you
18 tomorrow.
19 MR. GOLD: OK.
20 In doing that, we would only ask for
21 the production of whatever relates to DeCSS
22 and CSS.
23 MR. GARBUS: So if there's nothing on
24 the hard drive that relates to either of
25 those two things, we don't have an issue.
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2 So the first question is whether or not --
3 MR. GOLD: What does that mean we
4 don't have an issue?
5 MR. GARBUS: In other words, let's
6 assume there's nothing on his hard drive.
7 MR. GOLD: We won't know until we get
8 an expert in to --
9 MR. GARBUS: In other words, you won't
10 take his representation that there's nothing
11 on his hard drive that relates to CSS or
12 DeCSS and may contain other information,
13 some of which you clearly ought not to see.
14 MR. GOLD: He hasn't got any idea what
15 is on the hard drive. He was trying to
16 search it.
17 MR. GARBUS: First, we have to
18 determine what is on the hard drive.
19 MR. GOLD: He said he couldn't do
20 that. You weren't here this morning.
21 MR. GARBUS: No, I was here this
22 morning.
23 MR. GOLD: Well, I mean actually.
24 MR. GARBUS: We will take your request
25 under advisement.
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2 MR. GOLD: What your witness has
3 testified, if you were here, was that he
4 didn't feel he could pull down --
5 MR. GARBUS: Can't you contain
6 yourself, Mr. Gold? Go ahead.
7 MR. GOLD: That is a funny question.
8 I join in your laughter. Do you want to
9 weigh how much time you took up today
10 against how much time I am taking up now?
11 MR. GARBUS: Go ahead, Mr. Gold.
12 MR. GOLD: Your witness as you know
13 testified this morning that he didn't think
14 he could pull anything down from his hard
15 drive, that he had tried before and couldn't
16 do it, that it wasn't set up in order to do
17 that.
18 I found that surprising in light of
19 what I read in the papers all the time about
20 other people's hard drives, but I am not a
21 hard drive expert. So he said that he
22 didn't think it could be done. And he was
23 trying to do it. We want to get somebody in
24 to actually see if that's true and whether
25 he can get something.
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2 MR. GARBUS: We'll take it under
3 advisement.
4 THE WITNESS: Can I say something at
5 this point? I get maybe a thousand pieces
6 of E-mail a day. I am not quite sure how
7 somebody is going to go through all the
8 deleted mail, which has probably been
9 overwritten by new material since then over
10 the past several months, and track that. I
11 mean, it's not possible. If it were
12 possible it would take you years, but I
13 don't think it's possible at all.
14 MR. GOLD: Well, we'll take a crack at
15 it, if you permit us to. That's an
16 unfortunate word. We'll take a shot at it
17 and we'll see if that's right, and if
18 there's anything that he can get out that's
19 relevant, he or she, then we'll ask for its
20 production.
21 MR. GARBUS: As I said, I will take it
22 under advisement. I will try and make a
23 determination. If I can make a
24 determination by tomorrow, I will tell you.
25 If we require something more than that, I
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2 will also tell you.
3 MR. GOLD: OK, well, I hope we get it
4 from you tomorrow.
5 E M M A N U E L G O L D S T E I N , resumed and
6 testified as follows:
7 EXAMINATION BY (Cont'd.)
8 MR. GOLD:
9 Q. Now, I take it that all of the material
10 you attached to one of your affidavits was material
11 relating to sites that 2600 was linking to, not
12 material related to 2600.
13 MR. GARBUS: That's wrong.
14 A. I don't believe so.
15 MR. GARBUS: I assume you're familiar
16 with the affidavits we submitted in the
17 case. That's wrong.
18 MR. GOLD: Paragraph 5 of your
19 June 14th declaration says: As I stated in
20 my previous declaration in support of this
21 motion, the sites containing DeCSS, mirrors
22 to which we currently link, are very diverse
23 in nature. In particular, many of these
24 sites provide a variety of legitimate
25 information concerning topics related to
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2 this case and DeCSS. I know that's more
3 than just mirrors setting forth the DeCSS
4 code. Annexed hereto as Exhibit C are
5 copies of the first page of the newer sites
6 currently listed on 2600.
7 A. Uh-huh. That's a list. Not the entire
8 site. That's a list of the sites.
9 Q. But what we have in that bulky exhibit
10 are copies taken from those sites that you link to,
11 right?
12 A. I am not sure. I haven't --
13 MR. GOLD: This is what Mr. Garbus must
14 be talking of. It may be yet again that he
15 has committed an error.
16 MR. GARBUS: In other words, are there
17 anything here from you or is it just from
18 the newer sites?
19 THE WITNESS: Those are different
20 sites. There's a list -- yes, these are by
21 samples from other sites.
22 MR. GOLD: Et bien, what do you say
23 now?
24 MR. GARBUS: If I am in error, then
25 I'm in error. In other words, if you're
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2 telling me that we didn't give him that,
3 then we should certainly give you that. I
4 had understood we had given that to you.
5 THE WITNESS: This looks like an
6 indication that the sites are diverse in
7 nature and have all kinds of other material
8 in addition to DeCSS. I think that's the
9 point of submitting this.
10 MR. GARBUS: Right.
11 MS. MILLER: Was there another stack
12 of documents you were talking about that was
13 attached in --
14 MR. GARBUS: I thought there was. I
15 had thought I had seen a set of documents
16 which were everything that we had done from
17 October -- not October, from let's say
18 November until now. When I say everything,
19 I mean some of the 2600 editorials.
20 THE WITNESS: Actually, I see it over
21 there. That stack right there, those are
22 our editorials. That's what we would have
23 given you. It's really not that much. It's
24 everything we've written on the web site
25 from November until now.
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2 MR. GARBUS: I thought we had given
3 that to you. If I'm in error, you'll
4 certainly get it.
5 Q. Can you state for the record, perhaps
6 again, what it is you think you've given us?
7 MR. GARBUS: Be specific. You have
8 seen this. If I am an error or if they
9 haven't received it, don't give them that.
10 Just describe what's in this package.
11 MR. GOLD: Is it all right if I ask
12 the questions and without direction to the
13 witness?
14 MR. GARBUS: But you're misleading the
15 witness, Mr. Gold.
16 MR. GOLD: You know how to object.
17 And you shouldn't tell the witness what to
18 say. You really shouldn't.
19 MR. GARBUS: Mr. Gold, please.
20 Contain yourself.
21 A. As far as I know, obviously we gave
22 you this, which is a description of other --
23 Q. Did you give us that? Do you know that?
24 A. From what you told me today, yes.
25 Q. You have it in front of you. Did you
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2 give it to us?
3 A. I remember we went through to find
4 samples of other sites, but this was quite some
5 time ago. So this was a couple of months ago.
6 I also know that we have gone through
7 every single news item that we have written on the
8 sites and I presume that was submitted to you as
9 well.
10 Q. By whom?
11 A. By our lawyers.
12 Q. When did you give those to your lawyers?
13 A. I think we have gone through those
14 several times actually. I mean --
15 Q. I don't know who the "we" is, sir.
16 A. Me, my lawyers, our webmaster.
17 Q. Have gone through the stuff you wrote
18 for your web site.
19 A. The news items on the web site, yes.
20 Q. The ones you wrote?
21 A. The ones I had written and the ones that
22 are written by other people as well.
23 Q. So you say there was a group of -- stack
24 of papers that are taken -- of pictures taken from
25 your or copies taken from your web site.
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2 A. They're basically just articles, yes.
3 Q. Were taken from the web site and they're
4 articles or editorials that you have written.
5 A. Yes.
6 Q. And then you gave them to your lawyers,
7 that stack; is that true?
8 A. We either gave it to them or we told
9 them exactly how it's -- how to print them out. I
10 mean, anybody can do this. You just go to the web
11 site and print.
12 Q. Then I take it you're not sure you gave
13 them this stack?
14 A. There have been so many papers floating
15 around, I don't know if those are the ones that I
16 handed to them or if I just said this is how you
17 print them out. But I know we've been over this.
18 MR. GARBUS: Mr. Gold, let me just say
19 one thing. Anybody can just go to the site
20 and download it. My memory is that
21 Mr. Goldstein told us how to do it. We did
22 it and I thought we had given those
23 documents to you. If we have not, you'll
24 get it. They're available to anybody who
25 wants to get it.
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2 THE WITNESS: I see them here though.
3 Either we gave them to you or you printed
4 them out yourself. So I am not quite sure.
5 MS. MILLER: Some of them we printed
6 ourselves.
7 Q. But you don't remember -- I take it that
8 you gave us that of those stories or editorials to
9 your lawyer.
10 A. I know we have gone through it at some
11 point. And I am fairly certain that all the papers
12 have been submitted that we're supposed to submit.
13 I can't give you a time and date of every single
14 one we did.
15 Q. Why are you so certain?
16 A. Because I have been going through this
17 for quite some time.
18 Q. Why does that mean they were given to us
19 if you sat and went through them?
20 MR. GARBUS: I will object. This is
21 totally unnecessary. I will direct the
22 witness not to answer.
23 MR. GOLD: You don't want to let him
24 answer any more questions about the
25 production?
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2 MR. GARBUS: No, I'm not going to let
3 him answer that question. It's badgering
4 him. He said he gave the papers to us.
5 What happens, whether the papers go from us
6 to you or not, it's not something he should
7 be badgered over.
8 What I am telling you is that it's my
9 understanding we gave it to you. It's also
10 totally on the public record. It's not
11 anything that's being withheld, and you have
12 indicated that you have some of those
13 documents. Anybody can download it.
14 Q. Are all those documents downloadable now
15 or are some of them lost?
16 A. No, we don't erase anything on our site,
17 that's on the web site.
18 Q. What about E-mail? That's not on the --
19 A. E-mail is not on the web site.
20 MR. GOLD: I gather, Mr. Garbus, you
21 don't know whether those documents were
22 given to us personally.
23 MR. GARBUS: My understanding is they
24 were. But I could be wrong. If I am wrong,
25 you will get the documents. But they are
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2 public knowledge. Anybody can get them.
3 Nothing has been withheld from you.
4 Q. Turning to item number 8, did you search
5 for those documents?
6 A. Yes, this is the E-mail that I grepped
7 through for any mention of these words.
8 Q. Where did you look for them?
9 A. On my home system, 2600 dot-com. But I
10 should point out, I as a rule don't save mail. It
11 clogs up the system.
12 As far as chat rooms, I never save
13 anything from chat rooms. That's gone as soon as
14 it's sent and that doesn't even get saved to hard
15 drive, ever.
16 Q. Do I take it you looked through every
17 one of these 14 -- make it, sorry, 26 categories
18 and made, I'm sorry, there are 31 at page 12. You
19 have looked through all of these 31 requests?
20 A. Yes.
21 Q. And made searches for everything within
22 them.
23 A. Yes.
24 Q. And they would either be on your
25 computer or in a stack of papers in your basement.
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2 A. Yes, attic. Either there or on the
3 computer or just not in existence.
4 Q. How high is that stack of papers in your
5 basement?
6 A. It's pretty formidable.
7 Q. Three feet or ten feet?
8 A. It's more like mail bags filled with
9 information. And it's basically old financial
10 records, things like that. It's all pretty well
11 labeled, so I have no trouble finding -- I have no
12 trouble finding old financial records.
13 Q. Each document there is labeled?
14 A. Well, we put them in envelopes and label
15 what they are. Some would say, you know, tax
16 return from this particular year. That's where you
17 find it.
18 Q. What are the other categories?
19 A. Basically subscriber E-mail -- not
20 E-mail, subscriber mail. People who send mail to
21 us wanting to subscribe. We save that. Our bills,
22 bills that we paid, things like that.
23 Q. What other things were there?
24 A. That's about it. There's an awful lot
25 of it that accumulates over the years.
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1 Goldstein
2 Q. So you say some old E-mails.
3 A. No, not E-mails, just mail. Paper mail
4 that gets sent to us. Someone writes us and says
5 they want to subscribe. We save that in case
6 they -- we need to access it in the future.
7 Q. What is the Electronic Frontier
8 Foundation?
9 A. EFF is an organization that basically
10 keeps an eye on the various laws being passed that
11 affect electronic liberty and freedom and that kind
12 of thing. That spark their interest.
13 Q. What does electronic freedom mean?
14 A. What's my opinion?
15 Q. When you use it, yes.
16 A. Basically having the same rights on the
17 Net as you have in real life off the Net. And also
18 keeping an eye out for privacy invasions by
19 whatever powers that be.
20 Q. Does it relate to any rights you have
21 with respect to DVDs?
22 A. They saw the --
23 MR. GARBUS: Object to the form of the
24 question.
25 A. They saw the lawsuit against us as
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2 something that they wanted to challenge.
3 Q. They saw? Who is "they"?
4 A. EFF.
5 Q. I think you said the Electronic Frontier
6 Foundation --
7 A. Right.
8 Q. -- supports having the same freedom on
9 the Internet one has in real life; is that correct?
10 A. Well, that's my interpretation. I am
11 not quoting them saying that.
12 Q. I just want to make sure I didn't
13 misquote you.
14 A. But that's what I believe.
15 Q. And does that relate to DVDs I asked
16 you. Can you answer that yes or no and then
17 explain it?
18 A. Yes, in this case because the whole
19 concept of fair use, the whole concept of being
20 able to engage in free speech, it's related to this
21 whole DVD issue.
22 Q. What speech is being attacked?
23 MR. GARBUS: I will object to the form
24 of the question.
25 A. Speech in the form of source code,
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2 speech in the form of being able to communicate
3 openly about encryption and to compare techniques
4 of encryption. That's basically it that relates to
5 speech.
6 Q. Did you have any communication you
7 received from Roman Kazan or Shawn Reimerdes?
8 A. No. I mean, I spoke to Roman Kazan in
9 person at the Linux Expo in I believe it was
10 January, and the other person I have never met.
11 Q. What did you talk to him about?
12 A. Well, I hadn't seen him in a while. So
13 we talked about a bunch of things. He was a friend
14 of mine from years ago.
15 He runs an Internet service provider.
16 Basically he has a lot of customers that use his
17 system, and he was just very worried about having
18 to deal with a lawsuit and having to expose his
19 subscribers to that. And that's eventually why he
20 dropped out of the case.
21 Q. Now, the stacks of paper in your
22 basement, you said many of them related to
23 financial information?
24 A. Attic, yes.
25 Q. In the attic, I'm sorry.
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1 Goldstein
2 A. Just, you know, tax returns. A lot of
3 stuff that my accountant already has and has better
4 copies of. Receipts, things like that. You know,
5 I like to save things.
6 Q. Turning to 26 in that document, sir,
7 page 11. Did you understand that to ask you to
8 produce all your financial records?
9 A. Yes, and that has all been produced.
10 Q. It has all been produced to you.
11 MR. GARBUS: It has been produced to
12 us.
13 MR. GOLD: I didn't ask for your
14 understanding. I am asking your witness.
15 MR. GARBUS: Mr. Gold, just stop it.
16 MR. GOLD: Not you.
17 MR. GARBUS: Just stop it.
18 MR. GOLD: Don't answer questions for
19 your witness, Mr. Garbus. Thank you.
20 Q. What is your answer?
21 A. They were produced to our attorneys,
22 yes.
23 Q. Where are they now?
24 A. I imagine they are still there. They
25 were produced late last week.
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2 Q. You have taken them all out of the
3 stack?
4 A. No. Actually I verified that my
5 accountant had better copies of that. I figured
6 those are the ones you wanted.
7 Q. Your accountant sent them to your
8 lawyers or --
9 A. I contacted our accountant and he
10 FedEx'd them I believe last Thursday. So they
11 should have received it on Friday.
12 MR. GOLD: You haven't turned those
13 over, have you, Mr. Garbus?
14 MR. GARBUS: I would have to speak to
15 Mr. Hernstadt.
16 MR. GOLD: You don't know.
17 MR. GARBUS: I don't know.
18 A. I know at the time my attorneys were
19 in California. So that probably accounts for any
20 delay.
21 Q. If you turn to page 9 of the document,
22 Mr. Goldstein, number 14 at the bottom. Did you
23 understand what that called for?
24 A. Yes.
25 Q. What was your understanding?
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1 Goldstein
2 A. Those are log files. Those are files
3 that basically show who hits your web site, how
4 often, what pages they look at. I talked to my
5 webmaster about it. And since, um, I believe it's
6 since last summer we haven't kept log files. I
7 know he found a couple of test log files that he
8 ran, I believe it was sometime this spring.
9 But we had a problem with -- we had so
10 many hits coming in that it caused problems with
11 our site. Because what you do with log files is
12 you go through them all and you come up with
13 percentages. You say this many people from this
14 kind of a site hit this particular page. We did
15 this once a week on Sunday nights.
16 It turned out that what happened on
17 Sunday nights, there was so much activity and these
18 files became so big, that our system would crash.
19 And after a while visitors to our site from years
20 ago remember that we had a counter on the front
21 page that says how many people had gone to the
22 front page. Every time that system crashed that
23 number would go back to number 1. And it got kind
24 of embarrassing after a while that our large number
25 was always going down to 1.
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2 So we just said enough, it's not worth
3 it. Let's just stop. Because we have a lot of
4 people visiting the site. That's what's important,
5 and the logs don't really matter that much. And
6 they really don't. Because we don't care who is
7 visiting our site. We don't care what they're
8 looking at. Obviously people are visiting the
9 site. That's all that really matters.
10 Plus we just don't have the staff to
11 deal with this. If we were a big company, we had a
12 lot of people, we could give somebody the job of
13 watching over the logs and making sure the machine
14 doesn't crash. But basically we're talking about
15 two people running this thing.
16 Q. You mentioned your webmaster took two
17 tests, something or other?
18 A. Test log files.
19 Q. Test log files. And where are those?
20 A. I believe he submitted those.
21 Q. To?
22 A. To our attorneys. I believe they were
23 submitted late last week, maybe even early this
24 week. I had a little bit of trouble getting hold
25 of him. But I know he did submit them.
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2 Q. You submitted the originals and not
3 copies?
4 A. You can't really do that. It's a file.
5 So he sent a copy of the file to our attorneys.
6 Yes.
7 MR. GOLD: Mr. Garbus, have you turned
8 those over to us yet?
9 MR. GARBUS: I would have to speak to
10 Mr. Hernstadt.
11 MR. GOLD: Because if you have, we
12 don't know about it.
13 By the way, I did want to mention on
14 the record, since we had put so much on the
15 record earlier on this subject, you at
16 several times made an offer to continue the
17 deposition today for the rest of the
18 afternoon while some of us went to court,
19 and I said I thought that I had to be in
20 court, which I still think I have to be.
21 But I did say after a bit that we could do
22 that. But you have changed your mind, I
23 gather. You don't want to do that.
24 MR. GARBUS: What I determined was
25 that issues came up this morning that if
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2 Mr. Hernstadt did not know about he would be
3 at a disadvantage, so he ought to be there.
4 In exchange for that I had suggested that we
5 start early tomorrow morning so that if
6 we've lost two hours Mr. Goldstein and I
7 would be prepared to start at 8 o'clock
8 tomorrow morning or 7:30 to make up for the
9 lost hours this afternoon. And you
10 indicated to me you could not do that.
11 MR. GOLD: Do you remember that
12 Mr. Hernstadt was here all morning?
13 MR. GARBUS: Yes, he was here all
14 morning. He left when he had to prepare his
15 argument for court this afternoon.
16 MR. GOLD: So what came up this
17 morning that he wouldn't know about?
18 MR. GARBUS: What came up this morning
19 that he would not know about is the whole
20 question of what documents were produced and
21 what questions were not produced.
22 In other words, your discussion
23 basically of this document, Plaintiffs'
24 First Request for Production of Documents,
25 which has fundamentally been in
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2 Mr. Hernstadt's hand, came up after
3 Mr. Hernstadt left.
4 And you were making all kinds of
5 implications about what Mr. Hernstadt did do
6 or didn't do, and he should have knowledge --
7 MR. GOLD: I am very capable of saying
8 precisely what each of you have done if I
9 knew. And you won't have any questions
10 about that if I actually have evidence that
11 something untoward took place. You will
12 know that I am making that claim. You won't
13 have to repute it.
14 MR. GARBUS: Mr. Gold, this is kid
15 stuff. It's just posturing.
16 MR. GOLD: What options does one have
17 with you?
18 MR. GARBUS: One always has the option
19 to be above it.
20 MR. GOLD: I am going to ask you,
21 Mr. Garbus, to specifically represent
22 whether you're going to turn those documents
23 that may not have been turned over to us
24 over to us tomorrow.
25 MR. GARBUS: I will take it under
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2 advisement.
3 MR. GOLD: You won't tell me that you
4 will?
5 MR. GARBUS: No, of course. I will
6 turn over to you, and I thought I made it
7 very clear, any document that comes within
8 the ambit of this request. You have asked
9 for documents going back -- I will just go
10 down through it. We will give you
11 absolutely everything --
12 MR. GOLD: When?
13 MR. GARBUS: As soon as we can get it.
14 Now, to the extent --
15 MR. GOLD: Not tomorrow.
16 MR. GARBUS: No, no. To the extent
17 Mr. Hernstadt has it, you will get
18 everything by 9 o'clock or 10 o'clock
19 tomorrow before the deposition starts.
20 MR. GOLD: Gee, I understand that.
21 Thank you.
22 MR. GARBUS: To the extent that we
23 leave court early, you can get everything
24 that Mr. Hernstadt has by 6 o'clock.
25 MR. GOLD: I understand that also.
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2 MR. GARBUS: This evening.
3 MR. GOLD: And thank you.
4 MR. GARBUS: So that if we get out of
5 court at 5 o'clock, I would hope that
6 Mr. Hernstadt would come back to the office.
7 I do not know whether these documents are
8 Bates stamped or not. All the documents
9 that the witness has referred to I presume
10 arrived while we were in California during
11 doing the deposition of Mr. Hoy. I don't
12 know whether they have been Bates stamped or
13 not, but we'll make every attempt to Bates
14 stamp them and get them to you as soon as
15 feasibly possible.
16 MR. GOLD: So maybe not tomorrow.
17 MR. GARBUS: Oh, no. The question is
18 whether we get it to you tonight at 6, but
19 certainly by tomorrow morning. To the
20 extent that we have them.
21 Now, my understanding is, I don't know
22 whether we have, given the breadth of your
23 requests, all of the documents that you're
24 referring to, but we will give to you
25 everything that we have. Anything that came
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2 from Mr. Goldstein to us, we will make sure
3 that you have.
4 Again, my understanding being that in
5 the previous motions we supplied you with
6 about 200 pages or 300 pages of the exact
7 same material you're seeking, including
8 those documents which Mr. Goldstein referred
9 to in his affidavit which you have on the
10 table and also the articles and editorials
11 that were written at 2600 dot-com, some of
12 which you have already used in a
13 cross-examination of Mr. Goldstein. We have
14 also given you, as I understand it, copies
15 of The Hackers Quarterly sometime before
16 today.
17 MR. GOLD: Is that one or two
18 sentences?
19 MR. GARBUS: I stated it as one
20 sentence without commas.
21 MR. GOLD: Thank you.
22 BY MR. GOLD:
23 Q. Mr. Goldstein, what hacks to your
24 knowledge has 2600 ever reported on?
25 A. I am not sure what you mean by hacks.
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2 Q. You don't know what a hack is?
3 MR. GARBUS: You define it differently
4 than he, Mr. Gold.
5 Q. How do you understand a hack?
6 A. There's all kinds of definitions. If
7 you would be a little more specific, I can --
8 Q. I will try, sir. Has 2600 ever reported
9 on a circumstance where a corporate or personal
10 computer site was gotten into by any individual?
11 A. Are we talking about a web page being
12 hacked?
13 Q. Yes, to begin with.
14 A. Yes, we have reported on web pages being
15 hacked.
16 Q. Tell me which of those you remember.
17 A. Gosh. Well, let's see. There are a lot
18 of Chinese web pages that got hacked. I remember
19 the Department of Justice was hacked a while ago.
20 NASA gets hacked every few months.
21 Basically quite a few companies that are
22 on the Net get hacked. That means it's almost a
23 right of passage. What we do, actually, we haven't
24 done it in a while, because we just don't have the
25 staff to keep up with it. Other sites do a better
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2 job. But when a site gets hacked, someone notices
3 it, sends us mail and we capture it, we copy the
4 files and post it in our library.
5 Q. For what purpose?
6 A. To report on it. To show people the
7 security failed. This is what was put up on this
8 site. What the motives are of people who do this
9 is not something we try and pass judgment on. Some
10 people do it as a political statement. Some people
11 do it because they are immature. Some people have,
12 you know, nefarious purposes.
13 It's not our place to say this is done
14 for this particular reason. We just show or we did
15 show what it looks like. And if possible, how it
16 was done and what it was that failed.
17 Q. And that's solely for the purpose of
18 letting people know that it happened?
19 A. Yes, it's a news story. The mainstream
20 media does the same thing except they generally
21 like the technical detail and lots of times they
22 don't provide specifics, and there's a lot of
23 innuendo, a lot of, you know, hysteria that goes
24 along with those reports that we try to avoid.
25 Q. When you report on them do you ever post
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2 an executable software utility?
3 A. No, that's not how it works on the web
4 page. It's just a graphical file.
5 Q. Do you ever post algorithms in
6 connection with those --
7 A. No.
8 Q. -- instances?
9 Do you give any technical description of
10 those hacks?
11 A. If we receive technical information as
12 how it's done, yes, we provide that.
13 Q. Do you make any difference in your own
14 profession between journalism and civil
15 disobedience?
16 MR. GARBUS: I object to the form.
17 A. Yes, I think there are --
18 Q. What is the difference that you make?
19 A. Journalism is reporting on something
20 obviously. Civil disobedience is taking a stand, a
21 nonviolent stand, against something that you think
22 is wrong.
23 It's a sad day if journalism and civil
24 disobedience becomes the same thing, but it has
25 happened in some countries.
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2 Q. Do you remember ever writing in the 2600
3 publication that mirrors of DeCSS were a
4 demonstration of electronic civil disobedience?
5 A. Yes.
6 Q. What does that mean?
7 A. It basically means that despite the fact
8 that we're being threatened by all kinds of
9 powerful entities, for people, many of whom are
10 very small, poor people, individuals around the
11 world, for them to actually stand up and say this
12 is wrong and stand up against those entities, to me
13 that's an admirable thing.
14 To me that's basically putting your
15 beliefs in front of your personal safety, which is
16 what civil disobedience is. It's lying down in
17 front of bulldozers. It's blocking streets and
18 being arrested. This is a case of electronic civil
19 disobedience where people say this is wrong and I
20 am going to put my site on the line because I
21 believe it's wrong.
22 Q. Does civil disobedience involve breaking
23 the law for a cause you consider just?
24 MR. GARBUS: I will object to it. Why
25 don't you take the -- well, you can't.
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2 Civil disobedience is a very complex thing.
3 I will allow the witness to answer. It is
4 clearly you're limited, your knowledge is so
5 limited.
6 MR. GOLD: Thank you so much,
7 Mr. Garbus. That's very kind of you.
8 MR. GARBUS: He also drew a
9 distinction between his role as a
10 journalist --
11 MR. GOLD: You're not testifying,
12 Mr. Garbus.
13 MR. GARBUS: -- and the whole question
14 of civil disobedience.
15 MR. GOLD: What about this question
16 bothers you so much?
17 MR. GARBUS: Because you have no
18 awareness of what you're talking about. It
19 is embarrassing. I would think you'd be
20 embarrassed.
21 MR. GOLD: Go ahead, Mr. Goldstein.
22 THE WITNESS: I need to hear the
23 question again.
24 (A portion of the record was read.)
25 A. Yes, I believe so. That's the
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2 definition of civil disobedience.
3 Q. You understood my question, didn't you?
4 That's why you answered it?
5 A. I am not going to take sides here.
6 Q. Thank you, Mr. Goldstein.
7 Has 2600 received any benefit from being
8 a plaintiff in this action?
9 MR. GARBUS: Defendant.
10 MR. GOLD: Defendant, thank you.
11 MR. GARBUS: They would like to be the
12 plaintiff.
13 A. Well, morally, yes. We found many,
14 many people support us and it's been very
15 heartening to see that. It's also been pretty
16 terrifying and sobering knowing what we're up
17 against. So I would say there is a little of good
18 and bad.
19 Q. What are you up against?
20 A. We're up against some pretty powerful
21 entities. For instance, when we have media people
22 who want to interview us, nine times out of ten it
23 turns out their parent company is suing us. So it
24 is kind of hard to believe that fair stories will
25 be written in cases like that.
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2 Q. Have any unfair stories been written
3 about you?
4 A. Yes, quite a few.
5 Q. In what publication?
6 A. I am thinking of specifically MTV, which
7 is owned by Viacom, did a really bad piece. That
8 was last year. That was before this all happened.
9 It is something we're used to. We're used to bad
10 media because they don't understand the issues and
11 because they want the sensation of headlines saying
12 hackers can do anything. They don't do the
13 research.
14 We have had had some very good pieces as
15 well. We've had a good piece in the Village Voice,
16 The New York Times. So it's worth the risk because
17 I think we do get some reporters that understand
18 what is going on.
19 Q. Do you believe hackers can do
20 everything?
21 A. No. No.
22 Q. Didn't you say that any protective code
23 would be uncovered, discovered, undone by hackers?
24 A. Yes. Hackers can figure things out, but
25 it takes time. It doesn't mean they can do
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2 anything. It means that if a particular form of
3 technology very often written by hackers can
4 eventually be figured out, undone, defeated.
5 Q. So the terrifying instances you're
6 talking about are instances where newspapers write
7 some story about you?
8 A. No. No.
9 MR. GARBUS: Objection. You misstated
10 the witness's testimony.
11 A. The terrifying things are facing this
12 kind of a lawsuit, knowing that everything we've
13 worked for over the past fifteen or so years can be
14 unraveled this easily and that so much time and
15 effort can be spent on this and our progress can be
16 slowed down to nothing.
17 Q. When was the anticircumvention provision
18 enacted into law, if you know?
19 MR. GARBUS: Objection.
20 Q. Was it fifteen or ten years ago?
21 A. No.
22 Q. Is it true that you're terrified by the
23 fact that some companies have brought a lawsuit
24 against you alleging that you violated their
25 rights?
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1 Goldstein
2 A. It's the might that's focussing on us
3 that's terrifying. Not what they say we've done.
4 Because obviously we don't believe we have done
5 anything wrong.
6 Q. What has that might done to you other
7 than file a lawsuit?
8 A. It's a psychological thing. It's
9 knowing that everything -- that so many entities
10 are controlled by these eight companies, and for
11 instance, we had problems with a bank because they
12 had changed their policy towards Internet sales,
13 which we've started to get involved in, and the way
14 that they suddenly decided that we were a risk to
15 them made us wonder was one of these eight
16 companies behind it.
17 It was very easy to find links between
18 them and the eight companies because these eight
19 companies are linked to everybody. So it's a
20 psychological thing in that every time something
21 bad happens, you wonder. Is it because of -- who
22 are these powerful people? We all watch the
23 movies. We all know what kind of evil things can
24 go on. So your imagination can run away with you
25 sometimes, but a lot of times it's accurate.
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1 Goldstein
2 Q. Some of us read newspapers and find out
3 what terrible thing have gone on?
4 MR. GARBUS: Is that a question,
5 Mr. Gold, or is that a statement?
6 Q. Isn't it a fact that some of us go to
7 movies and find out that hackers have done terrible
8 things, if we believe what the movie has portrayed?
9 A. If you believe what the movies portray
10 about hackers, there is not much I can say, really.
11 Q. Who knows the truth about hackers other
12 than you?
13 MR. GARBUS: Object to the form of the
14 question. Direct the witness not to answer.
15 Go ahead, Mr. Gold.
16 THE WITNESS: Not to answer or to
17 answer?
18 MR. GARBUS: Answer.
19 THE WITNESS: I'm sorry. Can you
20 repeat the question?
21 A. I don't think there is a truth. I
22 think there are elements of truth and I think I
23 have got a few of those elements. I think a lot of
24 people in the hacker community have a few of those
25 elements. And unfortunately, I believe a lot of
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2 the media doesn't really want to get the true
3 story. They have written the story before they
4 actually interview the people.
5 Q. Is it true that some of the people
6 believe that of you?
7 A. Oh, I am sure some people do.
8 Q. It depends on which side of the matter
9 you are on.
10 A. It depends on what they believe when
11 they read, absolutely.
12 Q. Paragraph 13 of your May 3 declaration.
13 (Handing.)
14 MR. GOLD: Can you mark this as the
15 next exhibit, sir.
16 (Plaintiffs' Exhibit 5, Declaration of
17 Emmanuel Goldstein, marked for
18 identification, as of this date.)
19 THE VIDEOGRAPHER: The time is 2:50 p.m.
20 We're going off the record.
21 (A recess was taken.)
22 THE VIDEOGRAPHER: The time is
23 2:52 p.m. We're back on the record.
24 By MR. GOLD:
25 Q. Is it true, sir, that you stated on the
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1 Goldstein
2 record a short while ago that you believed some
3 bank you were trying to open an account in wouldn't
4 do it, then you believed that was because they were
5 owned by or connected to one of the plaintiffs?
6 MR. GARBUS: Objection. He didn't
7 state that.
8 MR. GOLD: Why don't you let your
9 witness answer.
10 Q. Did you say it?
11 A. I stated that we had problems with a
12 bank and we in our minds had to wonder if that was
13 caused because of an affiliation. In other words,
14 any bad thing that happens to us, we have to
15 wonder. You know, is there a connection? Because
16 there are definitely connections. A lot of these
17 corporations are linked together and it's something
18 to definitely be worried about. It's a
19 psychological thing.
20 Q. And you say that -- you're serious about
21 this, I gather -- that anything bad that happens to
22 you since this suit was started you believe is the
23 fault of the movie companies?
24 MR. GARBUS: I will object. It's not
25 what the witness said. You're just
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1 Goldstein
2 misstating it. He's been the subject of the
3 press where he has been vilified. How can
4 that not have a consequence or effect with
5 these banks?
6 Q. Do you want to repeat what Mr. Garbus
7 said? Now that he's told you what to say.
8 A. It's basically we investigated and found
9 that there was no truth to that. But what I was
10 trying to convey is that there is a psychological
11 thing that goes on when you have all these powerful
12 enemies and, you know, it's -- it wouldn't be
13 untrue to say that you become a little bit paranoid
14 and you start to worry about things that, you know,
15 you wouldn't ordinarily worry about. That's what I
16 considered to be the scary part of this. And of
17 course I'm not saying that there aren't real
18 threats out there. I am sure there are.
19 Q. What are they?
20 A. I am sure this has had an effect on the
21 fairness of the media coverage that we get.
22 Q. Why are you sure of that, sir?
23 A. Because that's the nature. If a
24 particular media outlet is owned by a different
25 corporation, of course on the record they will say
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1 Goldstein
2 that there's no effect. That ownership has no
3 effect.
4 But I think it has been proven time and
5 again that ownership of media outlets does
6 definitely have an effect. For instance, ABC is
7 owned by Disney and has recently been accused of
8 not airing stories that are critical of Disney,
9 even though it was said at the time of Disney's
10 takeover there would be no effect on news.
11 When Time Warner purchased CNN, again it
12 was said there would be no effects, and I have
13 heard allegations that there are. It's a common
14 practice when corporations take over other
15 corporation that there is some influence.
16 So when you're dealing with things like
17 the media, which I believe should be independent of
18 all this, it's inevitable. It's rather sad because
19 I think the American people wind up losing.
20 MR. GARBUS: On that note,
21 Mr. Gold, --
22 MR. GOLD: Don't confuse me. I am
23 good, but I am not that good.
24 MR. GARBUS: We can discuss that at a
25 later time, but it is now approaching
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2 3 o'clock. Should we take our break?
3 MR. GOLD: Sure.
4 MR. GARBUS: And tomorrow morning at
5 10?
6 MR. GOLD: Yes.
7 THE VIDEOGRAPHER: The time is 2:55
8 p.m. of the videotape deposition of
9 Mr. Emmanuel Goldstein. This completes tape
10 number 2.
11 (Time noted: 2:55 p.m.)
12
13 ____________________
14 EMMANUEL GOLDSTEIN
15
16 Subscribed and sworn to before me
17 this ___ day of __________, 2000.
18
19 _________________________________
20
21
22
23
24
25
163
1
2 C E R T I F I C A T E
3 STATE OF NEW YORK )
4 : ss.
5 COUNTY OF SUFFOLK )
6
7 I, THOMAS R. NICHOLS, a Notary Public
8 within and for the State of New York, do
9 hereby certify:
10 That EMMANUEL GOLDSTEIN, the witness
11 whose deposition is hereinbefore set forth,
12 was duly sworn by me and that such
13 deposition is a true record of the testimony
14 given by the witness.
15 I further certify that I am not
16 related to any of the parties to this action
17 by blood or marriage, and that I am in no
18 way interested in the outcome of this
19 matter.
20 IN WITNESS WHEREOF, I have hereunto
21 set my hand this 28th day of June, 2000.
22
23
24 _____________________
25 THOMAS R. NICHOLS
164
1
2
3 ------------------- I N D E X-------------------
4
5 ------------- INFORMATION REQUESTS -------------
6 TO BE FURNISHED: 41
7 REQUESTS: 93, 108, 121
8
9 -------------------- EXHIBITS-------------------
10 PLAINTIFFS' FOR ID.
11 1 Piece of paper with the letters 28
DeCSS written on it
12
2 Spring 2000 issue of 2600, The 48
13 Hacker Quarterly, magazine
14 3 Document headed "2600/News Archive, 76
Page 1 of 2
15
4 Copy of plaintiffs first request 94
16 for production of documents
17 5 Declaration of Emmanuel Goldstein 158
18
19
20
21
22
23
24
25
165
1
2 UNITED STATES DISTRICT COURT
3 SOUTHERN DISTRICT OF NEW YORK
4
UNIVERSAL CITY STUDIOS, INC.; )
5 PARAMOUNT PICTURES CORPORATION; )
METRO-GOLDWYN-MAYER, INC.; TRISTAR )
6 PICTURES, INC.; COLUMBIA PICTURES )
INDUSTRIES, INC.; TIME WARNER )
7 ENTERTAINMENT CO., L.P.; DISNEY )
EMTERPRISES, INC.; AND TWENTIETH )
8 CENTURY FOX FILM CORPORATON, )
)
9 )
PlaintiffS, )00 Civ. 277
10 )(LAK)(RLE)
vs. )
11 )
SHAWN C. REIMERDES; ERIC CORLEY )
12 A/K/A "EMMANUEL GOLDSTEIN"; )
ROMAN KAZAN; AND 2600 )
13 ENTERPRISES, INC. )
)
14 Defendant. )
------------------------------------)
15
16
17 CONTINUED VIDEOTAPED DEPOSITION OF
18 EMMANUEL GOLDSTEIN
19 New York, New York
20 Wednesday, June 28, 2000
21
22
23
24 Reported by:
Thomas R. Nichols, RPR
25 JOB NO. 110289
166
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2
3
4
5
6
7 June 28, 2000
8 10:20 a.m.
9
10 Continued videotaped deposition of
11 EMMANUEL GOLDSTEIN, held at the offices
12 of Proskauer Rose LLP, 1585 Broadway,
13 New York, New York, pursuant to Notice,
14 before Thomas R. Nichols, a Registered
15 Professional Reporter and a Notary Public
16 of the State of New York.
17
18
19
20
21
22
23
24
25
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1
2 A P P E A R A N C E S:
3
4 PROSKAUER ROSE LLP
5 Attorneys for Plaintiffs
6 1585 Broadway
7 New York, New York 10036-8299
8 BY: LEON GOLD, ESQ.
9 DAVID KRULWICH, ESQ.
10 -and-
11 MOTION PICTURE ASSOCIATION OF AMERICA
12 15503 Ventura Boulevard
13 Encino, California 91436
14 BY: MARK D. LITVACK, ESQ.
15
16 FRANKFURT GARBUS KLEIN & SELZ, PC
17 Attorneys for Defendants
18 488 Madison Avenue
19 New York, New York 10022
20 BY: MARTIN GARBUS, ESQ.
21
22 ALSO PRESENT:
23 RUBEN MARTINEZ, THE VIDEOGRAPHER
24
25
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2 THE VIDEOGRAPHER: The time is 10:16
3 a.m. on June 28, 2000, and this is tape
4 number 3 of the continuation deposition of
5 Mr. Emmanuel Goldstein.
6 E M M A N U E L G O L D S T E I N , resumed as a
7 witness, having been previously sworn by the
8 Notary Public, was examined and testified
9 further as follows:
10 EXAMINATION BY (Cont'd.)
11 MR. GOLD:
12 Q. Mr. Goldstein, just to remind you, you
13 are not being sworn in again, but you are under
14 oath.
15 Has 2600 obtained any donations as a
16 result of this case?
17 A. Not donations. It's hard to say, but I
18 am sure we have gotten people to subscribe, buy a
19 hat, buy a T-shirt, whatever it is that we sell,
20 but no donations per se.
21 Q. Do you have a retainer agreement with
22 Mr. Garbus's firm?
23 MR. GARBUS: I will object to it. Go
24 ahead.
25 A. Our legal team is paid for by the
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1 Goldstein
2 Electronic Frontier Foundation. So all financial
3 information would go through them.
4 Q. The Electronic Frontier Foundation is
5 paying whatever fees are being paid on the case?
6 A. That's right.
7 Q. Do you know anything -- let me ask you
8 again. Did you make any agreement that you know of
9 with Mr. Garbus or his firm with respect to what
10 you were retaining Mr. Garbus for or how you were
11 paying Mr. Garbus? And I mean his firm.
12 A. The only agreement I made with
13 Mr. Garbus is that he is my attorney, he is
14 representing me, he is working for me.
15 Q. Did you agree to pay fees?
16 A. The fees, as I said, are being covered
17 by Electronic Frontier Foundation.
18 Q. As far as you know, that was an
19 agreement between Mr. Garbus and the Electronic
20 Frontier Foundation?
21 A. Yes.
22 Q. Is either your agreement or their
23 agreement in writing?
24 A. I would imagine so.
25 MR. GARBUS: I would object to this
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2 line of inquiry. If the judge requires us
3 to answer, we'll certainly answer.
4 MR. GOLD: Are you, sir, directing
5 your witness not to answer any questions
6 about the --
7 MR. GARBUS: No. I think you ought
8 not to ask it, but I am not directing him
9 not to answer.
10 Q. Has the Electronic Frontier Foundation
11 sent out any E-mails requesting contributions?
12 A. I believe EFF always sends out E-mails
13 requesting contributions, but not just E-mails, but
14 they have a web site. They have a paper
15 publication. They have fund-raising events of
16 various sorts.
17 Q. Did they publish any material on their
18 web site or have any communications in which they
19 solicited contributions to the defense of this
20 case?
21 A. I couldn't say for sure.
22 MR. GARBUS: Then don't speculate.
23 A. Specifically --
24 MR. GARBUS: Don't speculate.
25 A. I don't know specifically.
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2 Q. You don't know one way or the other.
3 A. No.
4 RQ MR. GOLD: Mr. Garbus, I do request any
5 written material relating to any agreements
6 with Electronic Frontier Foundation relating
7 to this case.
8 MR. GARBUS: I will take it under
9 advisement.
10 Q. Do you have any documents relating to
11 the Electronic Frontier Foundation? I don't mean
12 E-mail communications you see by computer, but any
13 documents at all relating to the Electronic
14 Frontier Foundation?
15 A. No.
16 Q. Have you ever broken into a computer
17 that doesn't belong to you?
18 MR. GARBUS: Objection.
19 A. In the past, in the 1980s, yes.
20 Q. How many times?
21 A. I don't know a specific number of times.
22 MR. GARBUS: I object to the question.
23 Q. More than ten?
24 A. Probably.
25 Q. Do you remember who owned any of the
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2 computers you broke into?
3 MR. GARBUS: Objection.
4 A. The computers were all owned by the
5 company I mentioned yesterday, Telenet.
6 Q. A telephone company?
7 A. No, it's -- it was a communications
8 company. I believe they later merged with GTE.
9 Q. And all of the computers as far as you
10 remember that you broke into were owned by them?
11 A. Yes.
12 Q. You have never broken into anyone else's
13 computer --
14 A. No.
15 Q. -- in the nineties.
16 A. Oh, no.
17 Q. For what purpose did you break into
18 their computers?
19 MR. GARBUS: I presume, Mr. Gold, to
20 save time I have a continuing objection to
21 the entire line of questioning.
22 MR. GOLD: Yes, sir.
23 A. Back then I was just curious. It was
24 new technology.
25 Q. Why break into their computers rather
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2 than Bell Telephone or the Pentagon computers or
3 government computers? Why did you choose them?
4 A. This was before the Net was actually a
5 very popular thing. This was kind of the early
6 days. So people were still feeling around. And as
7 I mentioned yesterday, they had a one-letter
8 password, so it wasn't exactly difficult.
9 I should stress that it caused no harm.
10 All we used it for was communicating amongst
11 friends. I explained everything and helped their
12 security system become stronger as a result.
13 Q. But didn't you take material from their
14 computer that could be used by yourself or other
15 people to make free telephone calls?
16 A. No. There was no such material, no.
17 Q. What did you find in there that you
18 took?
19 MR. GARBUS: Object to the form of the
20 question.
21 A. We didn't take anything. It was a
22 computer. We didn't have computers back then. It
23 was something to explore, something -- something to
24 learn about. We learned how it worked. We
25 communicated amongst ourselves, and that's the
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2 extent of it.
3 MR. GOLD: This is Exhibit 5.
4 (Handing.)
5 Q. If, Mr. Goldstein, if you could turn to
6 page 4, paragraph 13.
7 A. Yes.
8 Q. The first line of that paragraph states,
9 quote, "While I don't practice or condone breaking
10 into computer systems," and the sentence goes on
11 from there.
12 Is that true?
13 A. Yes.
14 Q. You mean it's true for the nineties, but
15 not for the eighties.
16 A. That's a present tense sentence.
17 Q. It's a present tense. So in other
18 words, you did at one time in your life practice
19 and condone breaking into computers; is that true?
20 MR. GARBUS: Object to the form of the
21 question.
22 A. I wouldn't go so far as to say I
23 condoned, encouraged other people to do anything.
24 I have made mistakes of my own in the past, and I
25 have learned from them and moved on.
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2 Q. When you used the word "condoned" in
3 your answer, what did it mean to you?
4 A. On this line here? Encourage people --
5 Q. In your answer you used the word --
6 A. My meaning of the word "condone" was to
7 encourage people to do something.
8 Q. And you never encouraged anybody to
9 break into that company's security system?
10 A. No. I didn't encourage people to do
11 that and I haven't encouraged people to do anything
12 like that since.
13 Q. And you just did it yourself back in the
14 eighties.
15 A. Yes. And met other people who had found
16 the same hole that I had found.
17 Q. The next sentence, which is the last
18 line on page 4, begins on the last line on page 4,
19 says, "Through the magazine and the radio program,
20 I try to instill a sense of responsibility in those
21 who may consider doing such things, so that they
22 carefully think about their actions and don't cause
23 any damages."
24 Are you referring to specific magazine
25 articles or editorials?
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2 MR. GARBUS: I object to it. The
3 sentence speaks for itself. There is no
4 reference there to particular articles. It
5 is a sentence in an affidavit. I don't
6 think it requires interpretation. I object
7 to the form. I don't see any reference to
8 any other magazine article.
9 A. It's a general statement about the
10 magazine. Not any specific article.
11 Q. Did you ever write anything for the
12 magazine where you tried to instill a sense of
13 responsibility in people who may consider breaking
14 into computers so they think about their actions?
15 A. We try to get people to think about
16 their actions before they do something, such as
17 break into a computer, and hopefully not do
18 something like that.
19 Q. My question to you is, do you remember
20 writing any, and if you don't remember, just tell
21 me, do you remember writing any editorials or
22 stories where you told people in so many words,
23 don't break into computers?
24 MR. GARBUS: Mr. Goldstein, do you
25 want to look through some magazines that we
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2 have here?
3 A. I can say that that's something that I
4 have said. I can't point to a specific article,
5 but I know that's a viewpoint that I've expressed.
6 People shouldn't break into computers for various
7 reasons.
8 Q. I am going to ask you to identify the
9 article or editorial that you wrote for the 2600
10 publication which says that and leave a space in
11 the answer for you to do so.
12 TO BE FURNISHED: _________________________________
13 __________________________________________________.
14 MR. GARBUS: Excuse me. Did we make
15 clear to you that we brought some additional
16 copies?
17 MR. GOLD: This morning?
18 MR. GARBUS: Yes.
19 MR. GOLD: But heavens, if I read them
20 it will take me for the rest --
21 MR. GARBUS: Let the record indicate I
22 think that we are giving you 21 additional
23 copies.
24 MR. GOLD: I thank you. I think that
25 also responds to my specific request
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2 yesterday for all copies of the magazine.
3 Q. And I gather that's the ones you
4 readily found.
5 A. Those are the ones in your initial
6 request. There is another stack coming today
7 FedEx. You should have that.
8 Q. Thank you. I appreciate that.
9 MR. GARBUS: Off the record.
10 (Discussion off the record.)
11 Q. The last sentence in paragraph 13, which
12 is contained on page 5, says, "I also try to
13 instill a sense of reality into the mainstream so
14 that the actions of such people are judged in a
15 more even-handed way and so that people aren't sent
16 to prison for relatively minor offenses."
17 What were the relatively minor offenses
18 you had in mind in that sentence?
19 A. Offenses that don't cause any kind of
20 damage, that don't cause any kind of financial
21 loss.
22 Q. Who, as you understood it when you wrote
23 this, who was going to make the judgment of whether
24 or not it caused damage or financial loss?
25 A. A court of law. Inside a court of law.
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2 If no damage is found.
3 Q. But a court of law doesn't get into it
4 until the computer is broken into and sometimes not
5 even then. In other words --
6 MR. GARBUS: I object to the question.
7 Q. Again, I am trying to find out which are
8 the relatively minor offenses that you had in mind?
9 A. They're all kinds of relatively minor
10 offenses.
11 Q. Yes. And some major offenses.
12 A. Such as hacking a web page for instance
13 and changing a single file, but leaving the
14 original. That's just one example.
15 Q. Do you consider circumventing a
16 protective device that protects digital
17 intellectual property a minor offense?
18 MR. GARBUS: I object to it.
19 A. That is a very general question. And I
20 am not a lawyer, so I can't really....
21 Q. Well, I didn't ask you to give a legal
22 answer. I am asking you, sir, whether you consider
23 now the circumvention of a protective device that
24 protects digital electronic property to be a minor
25 offense.
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2 MR. GARBUS: I object to it. He has
3 already testified that he is not a lawyer
4 and he doesn't know what the statutes
5 provide for that kind of conduct.
6 Q. I am just asking, sir, if you consider
7 it to be a minor offense. Do you have an answer?
8 A. Again, I think it's a very general
9 question.
10 Q. I know. Do you have a general answer?
11 MR. GARBUS: Just say you can't
12 answer.
13 A. I can't answer
14 MO MR. GOLD: I know it's kind of
15 old-fashioned, Mr. Garbus, but I really do
16 object to a lawyer telling his witness what
17 to say. You can make an objection to the
18 question if you want to. I suppose you can
19 direct him not to answer so we have to take
20 it to the court. But I think the one thing
21 you can't do is say, quote, just say you
22 don't know.
23 MR. GARBUS: He has already said that.
24 MR. GOLD: Yes, I don't think that's
25 right. I am a little old-fashioned, and if
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2 it happens again I am going to take it to
3 the court. And I don't want to do that. So
4 I am pleading with you.
5 MR. GARBUS: OK.
6 Q. Have you ever watched a decrypted movie?
7 A. I have never watched a DVD if that's
8 what you're asking.
9 Q. Have you ever watched a decrypted DVD?
10 A. No.
11 Q. Do you believe there are a few bad
12 hackers?
13 MR. GARBUS: I object to the form of
14 the question.
15 A. I believe any group has bad people, yes.
16 Q. How would you define "bad hackers"?
17 A. I would define bad hackers as people who
18 don't subscribe to the overall philosophy of
19 causing no harm, not intruding on people's privacy,
20 not violating the laws. General common sense
21 things.
22 Q. Those people are good hackers?
23 A. Those are bad hackers, people who
24 violate those particular values which are part of
25 the hacker world.
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2 Q. Am I correct that traffic to 2600 on the
3 Internet has substantially increased since the
4 beginning of this lawsuit?
5 A. It's -- as I said, we don't keep logs,
6 so it's difficult to say for sure. I would imagine
7 it has. But it's really -- we don't sell anything
8 on our web site. We don't have advertisements
9 there, so there's no real advantage to us to have,
10 say, 50,000 people instead of 30,000 people a day.
11 Q. Well, tell us where the income, if any,
12 that 2600 has comes from?
13 A. Everything comes from the magazine or
14 the things that we sell, such as T-shirts and hats.
15 Q. When you say "everything comes from the
16 magazine," do you mean the hard copy magazine?
17 A. Yes, the hard copy magazine. We make
18 nothing off the web site.
19 Q. What is the amount of your subscription
20 in dollar terms to you?
21 A. I don't readily have that information in
22 my head. I know that our circulation is around
23 65,000 per issue.
24 Q. And you sell one-year subscriptions?
25 A. One-year. We sell one-year, two-year,
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2 three-year subscriptions.
3 Q. For how much?
4 A. $18 for a year in the United States.
5 Q. Is it your understanding that movies are
6 now capable of being transmitted over the Internet?
7 A. No.
8 Q. You don't know that.
9 A. No, it's my understanding that that's
10 not possible.
11 Q. Not possible?
12 A. At the current -- the current standing
13 in time, no, that's not possible.
14 Q. Where did you get that? What do you
15 know that causes you to say that?
16 A. Band width issues. It would take an
17 incredible amount of band width to transmit a movie
18 in any viable form. Just an incredible amount of
19 time.
20 Q. What other information do you possess
21 that leads you to the conclusion that you gave me
22 in your last answer, the answer that you gave to
23 the question I asked you?
24 A. Just knowledge of that technical ability
25 or lack thereof, and watching developments on the
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2 Net. Transmitting of video material on the Net is,
3 if anything, in its infancy. A long way off.
4 Q. Why does the current state of band
5 widths available make it impossible to transmit
6 movies on the Internet?
7 A. Well, a movie, using a DVD as an
8 example, would be something on the order of I
9 believe 12, 13 gigabytes of data, and I don't have
10 a calculator handy, I don't know if I could do the
11 math, but most people today in certainly
12 residential situations rarely exceed a 56K modem.
13 DSL is still pretty much in its infancy,
14 especially around here. And to transmit something
15 of that size would take an incredible -- we're
16 talking days, if not weeks. And economically it
17 doesn't make any sense either. So technologically,
18 economically, it's fantasy.
19 Q. So it just doesn't happen. Movies are
20 not transmitted over the Internet.
21 A. Not that I'm aware of.
22 Q. Did you ever hear of IRC channels?
23 A. Yes.
24 Q. What are they are?
25 A. Internet relay chat. That's a way
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2 people communicate back and forth.
3 Q. Are there movies transmitted over IRC
4 channels?
5 A. I can't imagine. I know there are some
6 Internet relay chat channels where people transmit
7 still images, you know, pictures, various pictures
8 of themselves, whatever. That's about the extent
9 of how far that's developed. I can't imagine them
10 transmitting movies over something like that.
11 MR. GARBUS: Are we talking about
12 movies that come off DVDs or camcorders or
13 any movies of any kind? I'm just not clear.
14 MR. GOLD: I asked him if any movies
15 of any kind were.
16 Q. Your answer wouldn't be different, would
17 it?
18 A. If you're talking about a 3-second
19 movie, maybe it would be a little different. I
20 assume you're talking about commercial films and I
21 have never heard of a case like that.
22 Q. Well, I am talking about movies that
23 certainly exceed an hour in duration.
24 A. My answer stands.
25 Q. Was your understanding of the current
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2 state of technology with respect to band widths and
3 your understanding that movies are not being
4 transmitted over the Internet one of the reasons
5 you posted DeCSS?
6 MR. GARBUS: I will object to that.
7 A. No, it's not related to that. We posted
8 DeCSS as journalists.
9 Q. So is it true that you would have posted
10 DeCSS regardless of whether band widths were very
11 developed or movies were being transmitted over the
12 Internet?
13 A. It's not related to that issue. In
14 fact, it's not even related to transmitting videos
15 or copying or anything like that.
16 Q. So your answer is yes.
17 A. Yes, it's an encryption issue.
18 Q. What do you know of the current state of
19 technological improvement with respect to band
20 widths, making them available to the general public
21 at lower and lower prices?
22 MR. GARBUS: I object to the form of
23 the question. I ask the witness not to
24 speculate about things he doesn't know
25 about.
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2 A. I know a bare minimal amount.
3 Q. Let's hear it, if we may.
4 A. Things are advancing slowly. We're
5 slowly moving into DSL. Which basically gives
6 subscribers more than 56K access, speeds
7 approaching cable modems. Still not nearly enough
8 to transmit anything as complex as a video with
9 sound.
10 Q. Who told you that?
11 A. Nobody told me this. It's common
12 knowledge. This is what I get from reading
13 magazines in this industry and basically
14 communicating with people.
15 Q. Did you read all of the affidavits
16 submitted by your counsel in this case? There were
17 about 18 or 20 of them. Most of them from alleged
18 experts.
19 A. I can't say I've read every word of all
20 of them, but I definitely read some of them. A
21 good part of them.
22 Q. Do any of them say that movies can be
23 transmitted over the Internet?
24 A. I wasn't aware of any of them saying in
25 the present movies can be transmitted over the
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2 Internet, no.
3 Q. Do you know of any ongoing efforts right
4 now to make DSL available to whole communities at a
5 time?
6 A. No, I don't.
7 Q. Are DSLs available in every college
8 campus in the United States?
9 A. No, I don't believe DSL is marketed to
10 campuses. I think they use what is known as a T-1
11 or basically whatever the campus uses.
12 Q. Those are broadband.
13 MR. GARBUS: I object to the form of
14 the question.
15 Q. Are those broadband?
16 A. I don't believe so, no. I don't believe
17 colleges are either.
18 Q. Is cable modem available, are cable
19 modems available in Manhattan today on the Time
20 Warner cable?
21 A. I don't know about Time Warner. I know
22 RCN offers them.
23 Q. What are they as you understand it?
24 A. I can't give you an exact speed, but
25 basically they allow you access to the Internet at
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2 higher speeds if there aren't people in your
3 immediate loop, meaning your neighbors who also
4 have cable modems. With every person that uses a
5 cable modem in your area, your speed is reduced by
6 half.
7 Q. If you have a cable modem that works,
8 can movies be transmitted on that cable modem?
9 A. It can -- it will still take a very long
10 time.
11 Q. How long?
12 A. A movie can be transmitted on a 300-baud
13 modem, but it would take a year to do it. It is
14 not practical. It makes no sense. It's completely
15 uneconomical if you're looking to save money or
16 something like that. And cable modems are not very
17 fast either.
18 Q. Are you familiar at all with what the
19 expert affidavits submitted in your behalf in this
20 case say about the amount of time it would take to
21 transfer a movie?
22 A. I don't have the number in my head.
23 Q. Or to copy a movie?
24 A. I don't have that number in my head
25 either.
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2 Q. Do you know they said it was possible to
3 transmit and copy movies that have been decrypted?
4 MR. GARBUS: I will object to your
5 statement. If you want to show him the
6 affidavit, then I think that's the
7 appropriate --
8 Q. Do you recall any such statement?
9 A. I don't recall that, but I would like to
10 see it.
11 Q. Do you know whether or not there are
12 hundreds of movies being transmitted between people
13 having access to IRC channels on a daily basis?
14 A. No, I never heard of a single one.
15 Q. Have you heard that there are thousands
16 of such things go on --
17 A. No.
18 Q. -- on a daily basis?
19 You never heard of any such thing.
20 A. No.
21 Q. Does the expression "compression
22 technology" have any meaning to you?
23 A. Compression technology? It has some
24 meaning to me.
25 Q. What is that?
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2 A. It's basically a method of compressing
3 data so that it becomes somewhat smaller and can be
4 transmitted faster.
5 Q. Well, if you have a two-hour movie do
6 you have any idea how long -- how much it can be
7 reduced by using compression technology?
8 A. My understanding is it would not be
9 significant, if at all.
10 Q. What do you mean by significant?
11 A. Anything greater than, say, 5 percent, I
12 couldn't -- I am aware that it cannot be
13 compressed.
14 Q. Who told you that?
15 A. Again, this is general knowledge. I am
16 not an engineer, so I can't point to a specific
17 source, but it's my general understanding that
18 that's not a viable means of transmitting large
19 files of that nature.
20 Q. Can you give us any clue as to where you
21 obtained this knowledge?
22 A. Again, just through general
23 conversations, reading publications. I can't point
24 to a specific source, no, I'm sorry.
25 Q. Is it true that illegal copying has
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2 nothing to do with DeCSS?
3 A. Yes. That's true.
4 Q. What do you understand is illegal
5 copying?
6 A. Making a copy of something that you are
7 not authorized to make a copy of.
8 Q. What is your understanding of the word
9 "copy"?
10 A. To make a duplicate of.
11 Q. Is it your belief that copying a file
12 isn't the same thing as taking it?
13 MR. GARBUS: Object.
14 A. While not legal, it is different from
15 stealing, because when you steal something it is no
16 longer in the place you took it from. So yes, I do
17 believe there is a difference.
18 Q. Are there other differences?
19 A. That's the only difference I can think
20 of.
21 Q. Tell me the difference between stealing
22 a book by taking it or stealing a book by running a
23 full copy of it off and taking the copy.
24 MR. GARBUS: I object to the question.
25 I object to the witness being asked to
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2 speculate. I think that the judge yesterday
3 had difficulty with my speculations.
4 MR. GOLD: I am not asking -- I don't
5 want the witness to speculate either.
6 MR. GARBUS: The witness is not a
7 lawyer and you should indicate, should
8 really indicate, the legal consequences --
9 MO MR. GOLD: I think you're telling him
10 how to testify. I don't know how much I can
11 beg to stop it so we don't have these petty
12 things before the judge.
13 MR. GARBUS: I object to it.
14 A. I believe if you are copying something
15 and the original is still there, it's not as --
16 it's not the same thing as taking the original so
17 that nobody else can access it. I am not saying it
18 is right. It is very definitely wrong., but it's
19 not the same thing. It is apples and oranges.
20 Q. I see. Thank you.
21 Do you believe that when a hacker is
22 violating the law they should be charged with
23 violating a particular law?
24 A. They should be charged with violating
25 whatever law they violated, yes.
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2 Q. Has that charge been made against you in
3 this case, the charge that you're violating a
4 particular law?
5 A. I am not a lawyer. I can't really
6 interpret how these laws are written.
7 Q. What have you been charged with here?
8 A. I have been charged with -- my
9 understanding, a violation of the Digital
10 Millennium Copyright Act, which I believe is still
11 being interpreted in courts.
12 Q. Which violation?
13 A. I would have to look at the actual
14 charges.
15 Q. You don't remember?
16 A. Not specifically.
17 Q. Did 2600 magazine ever publish any
18 articles on DVD security systems prior to the hack
19 appearing on the Internet?
20 A. Not that I recall, no.
21 Q. When did you first learn about DeCSS?
22 A. I first learned when it was initially
23 posted and when there was some controversy
24 surrounding people being intimidated into taking
25 the material off their web sites. That's when we
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2 started to take an interest in it.
3 Q. What do you mean when you say I learned
4 when it was posted? You saw it on the Internet?
5 A. I saw mention of it. I visited some of
6 the sites and saw what was being said about it. I
7 realized what it was about. And it became a news
8 story that we were interested in.
9 Q. Did any of the sites you visit talk
10 about copying or getting free movies?
11 A. No.
12 Q. None.
13 A. I didn't see it on any of the sites I
14 went to, no.
15 Q. How many did you go to?
16 A. At that time probably about three, four.
17 Q. Why did you stop at that, do you
18 remember?
19 A. It's basically the same thing over and
20 over again as far as mirrors of the files,
21 explanations. Once you understand what it's about,
22 there's no real need to go to other sites to get
23 the same explanation.
24 Q. That was in approximately October 1999
25 or do you have a recollection of a different date?
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2 A. I know it was the fall. It was either
3 October or November. I don't remember specifically
4 which.
5 Q. How soon after you visited these three
6 or four sites that you just mentioned did you
7 decide to post?
8 A. As soon as we saw that people were being
9 harassed and intimidated, that became the story for
10 us, the fact that a technological development was
11 seen as a crime. It had nothing to do with
12 stealing or copying. It was basically talking
13 about encryption, and people were being scared into
14 not doing this, and that's when we realized this
15 was much bigger than just figuring out encryption.
16 This was about speech.
17 Q. How were people being intimidated? What
18 was your understanding at that time?
19 A. My understanding was letters were being
20 sent to Internet service providers that had given
21 people accounts and they were being pressured to
22 turn off those people's access. In many cases they
23 did. People were being threatened with all kinds
24 of legal action, and it really had a chilling
25 effect.
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2 Q. So is it true that the harassment you're
3 talking about consisted of letters being sent to
4 people saying they were violating the law and
5 asking them to stop it?
6 A. It was -- I don't recall the exact
7 phrasing of the letters, but that's my
8 understanding, that it was letters being sent both
9 to them and to the people who provided them
10 Internet access and just an unprecedented amount of
11 pressure being put upon them just for talking about
12 something, just for showing people how something
13 works.
14 Q. Did you then believe that people had a
15 right to ask people to stop violating a law if they
16 believed that the law was being violated and it
17 affected them?
18 MR. GARBUS: I object to the question.
19 What he has described already, he is working
20 as a journalist writing a story. I object
21 to the question.
22 MR. GOLD: I didn't ask that question.
23 Well, he says he is a journalist many times.
24 He said he was writing a story. But I asked
25 him if he believed at the time he found out
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2 people were getting letters asking them to
3 stop violating the law whether or not people
4 had a right to send such letters if they
5 believed they were being harmed and the law
6 was being broken.
7 MR. GARBUS: I object to it.
8 Q. Do you have an answer for that?
9 MO MR. GARBUS: I object to the question.
10 He is not a lawyer. Go ahead.
11 A. Again, I am not a lawyer, but I saw
12 those letters as intimidation tactics more than
13 simply a request, if you're violating the law,
14 please don't do that. Obviously people know not to
15 violate the law. This was something that was
16 common on the Internet, talking about technology,
17 and all of a sudden people were being told not to
18 do that and being threatened in ways they had never
19 been threatened before. And it wasn't only us. It
20 was dozens, hundreds of other Internet sites that
21 were drawn into this because of that.
22 MR. GOLD: Could you mark the
23 objection Mr. Garbus made so that we can --
24 go back to the objection Mr. Garbus made and
25 do whatever you do so that one can find it
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2 later right away. A list can be made of
3 everything.
4 Read my last question back to the
5 witness, please.
6 (A portion of the record was read.)
7 Q. I ask you again, do you have an answer
8 for that?
9 A. Assuming that my last answer wasn't
10 satisfactory, I will say yes, people have a right
11 to send letters if they believe the law is being
12 violated, but that's not how this was portrayed,
13 how it came across at all.
14 Q. How many of such letters have you read?
15 A. I believe it was the same letter sent to
16 many people.
17 Q. How many of such letters have you read,
18 sir?
19 A. I saw about maybe four or five of them.
20 Q. Were they all identical?
21 A. I believe they were. Again, this is
22 several months ago, last year, so I can't say for
23 sure. But I believe they were.
24 Q. Have you ever heard of a Chris Moseng,
25 M-o-s-e-n-g?
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2 A. No.
3 Q. Have you ever heard of anyone name
4 Olegario -- let me spell it, because I don't think
5 I'm pronouncing it right -- O-l-e-g-a-r-i-o.
6 That's his is first name. His last name is Craig.
7 Have you ever heard of such a person?
8 A. No.
9 Q. Have you ever heard of Frank Stevenson?
10 A. I have heard that name, yes.
11 Q. From whom?
12 A. I just -- that's a name in the Linux
13 community. I am not specifically sure who he is,
14 but I know I have seen the name someplace.
15 Q. Do you think it's possible, do you
16 understand it's possible to transfer on the
17 Internet a 64 -- transfer a full movie such as "The
18 Matrix," on the Internet in 64 minutes?
19 A. If such a thing were possible it would
20 be very bad quality. I mean, not -- certainly not
21 anything that would be viable.
22 Q. Do you know if it's possible?
23 A. I don't know if it's possible. I don't
24 know specifics as far as that goes.
25 Q. Do you think it's possible to transmit a
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2 50-gigabyte file in 48 minutes over the Internet?
3 MR. GARBUS: I object to the question.
4 Q. I am just asking if you know.
5 MR. GARBUS: You asked him if he
6 thought it was possible.
7 A. I don't believe with any bandwidth
8 that I have ever come in contact with, no.
9 Q. Do you know how large a typical movie is
10 in digital form after it has been compressed using
11 DIVX, D-I-V-X?
12 A. No, I am not familiar with that.
13 Q. Is it true that once a DVD movie has
14 been copied and decrypted using DeCSS it can be
15 played back from the hard disk file using a whole
16 variety of commercial software?
17 A. No. Well, it's kind of a trick question
18 because you don't need DeCSS to copy it in the
19 first place. So if you just copied the DVD
20 encrypted without using DeCSS, you could play it
21 back already on any DVD player.
22 Q. But the answer to my question was yes or
23 no?
24 MR. GARBUS: No, he gave you --
25 Q. Or you don't know?
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2 MR. GARBUS: He gave you a different
3 answer. He didn't say yes. He didn't say
4 he didn't know.
5 MR. GOLD: Read my question back.
6 MR. GARBUS: Go ahead, just repeat
7 your answer.
8 MR. GOLD: What are you directing him
9 to do? Just repeat his answer?
10 Could you mark that note on the last
11 statement of Mr. Garbus.
12 A. I am just trying to be clear here. I
13 don't think that point about DeCSS is relevant to
14 the question. It's like asking if it's possible on
15 a sunny day to do it. It's not relevant. You can
16 do it without DeCSS.
17 MR. GOLD: Thank you. Could you go
18 back and read my last question to the
19 witness. I will ask him to answer it.
20 (A portion of the record was read.)
21 MR. GARBUS: I object to the question.
22 It's already been asked and answered.
23 A. I am trying to answer this in a way you
24 like.
25 Q. I don't want you to do that. I want you
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2 to answer it in a way you think it's true.
3 A. If you copy an encrypted DVD onto a hard
4 disk and you somehow have the space on the hard
5 disk for that, and you have CSS already to play it
6 back through, yes, you will be able to view it that
7 way.
8 Q. Going back to the question about your
9 posting DeCSS, how soon after you first saw it did
10 you post it?
11 A. How soon after we first saw the initial
12 posting? It would be whatever period of time went
13 by before people started being threatened plus a
14 couple of days. Because we discussed the
15 importance of it.
16 Q. Prior to the time you first posted it
17 what efforts did you make to find out whether
18 movies could be transmitted over the Internet?
19 Just list them all.
20 A. I didn't make any effort to find that
21 out. I didn't see that as anything relevant.
22 Q. Prior to the time you first posted DeCSS
23 did you make any efforts to find out if there were
24 web sites in the United States which allowed people
25 to exchange movie files?
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2 A. No, that's not my interest.
3 Q. You made no such efforts; is that right?
4 A. No such efforts, no.
5 Q. Prior to the time you first posted DeCSS
6 did you make any effort whatsoever to contact
7 anyone that produced movies in the United States?
8 A. No.
9 Q. Have you ever used Napster?
10 A. I have played with Napster once or
11 twice, yes.
12 Q. Was that before you posted DeCSS?
13 A. Oh, no, that was way after. I don't
14 think Napster existed back then. That was a fairly
15 new development.
16 Q. Napster is a new development that
17 existed after November '99?
18 A. I believe so.
19 Q. So that would be about what? Six months
20 ago that it first existed it?
21 A. I don't know when Napster first existed.
22 Q. Do you know how many users use Napster
23 on a daily basis?
24 A. No.
25 Q. No idea?
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2 A. No, not really.
3 Q. Do you know how many records are taken
4 down from Napster or traded, do you know how many
5 records on a daily basis are traded between Napster
6 users?
7 A. Entire records or just individual songs?
8 Q. Songs.
9 A. I can't say I know.
10 Q. Is it in the multimillions?
11 A. I have no idea.
12 Q. At all?
13 A. I really have no idea on that.
14 Q. I am not sure I asked this. I might
15 have, so I apologize. Have you ever used DeCSS to
16 decrypt a DVD movie?
17 A. No.
18 Q. Is it true that DeCSS exists and is
19 designed for the sole function of decrypting CSS
20 encoded content?
21 A. DeCSS exists to decrypt CSS, yes.
22 Q. And that's its only purpose?
23 A. As far as --
24 Q. As far as you know.
25 A. The purpose in the greater context of
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2 providing an open source player for a Linux
3 machine, yes.
4 Q. What do you know about how DeCSS works?
5 A. I am not an expert on that kind of
6 thing.
7 Q. So you don't know anything about it.
8 A. I really don't know the technicalities
9 at all, no.
10 Q. Is it true to your knowledge that by
11 downloading and running the object code form or
12 executable form of DeCSS utility, a user can
13 copyright a decrypted movie? Let me ask it again.
14 Is it true to your knowledge that by
15 downloading and running the object form, by which I
16 mean the executable form, of the DeCSS utility, a
17 user can create a decrypted movie?
18 A. I am not entirely sure. That's a little
19 too technical for me.
20 Q. You're saying you don't know.
21 A. I don't know.
22 Q. Is it true that after creating a
23 decrypted movie file DeCSS allows that file to be
24 copied to the user's computer hard disk?
25 MR. GARBUS: I object to the form of
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2 the question. He said he didn't know
3 whether or not the first part of your
4 question, which was the last question, was
5 true or not.
6 Q. Do you know the answer to that question?
7 A. Again, I have never used DeCSS, so I
8 don't know these kinds of things.
9 Q. Can you describe for me the role, if
10 any, of DeCSS in reverse engineering?
11 A. Basically CSS uses the particular type
12 of encryption. DeCSS gets around that kind of
13 encryption, defeats it, basically allows you to see
14 how that encryption works or in this case doesn't
15 work to encrypt -- to encrypt the data. And in so
16 doing, a lot can be learned.
17 Q. Is that everything you know about the
18 role of DeCSS in reverse engineering?
19 A. Yes. It's a general thing, but that's
20 basically the extent of my knowledge, is very
21 general.
22 Q. Describe the role, if any, of DeCSS in
23 connection with efforts to create an open source
24 DVD player.
25 A. My understanding is that the many Linux
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2 users of the world had long wanted a DVD player for
3 their operating system. For various reasons of
4 which I don't really know the details they were
5 unable to obtain a license for this.
6 By reverse engineering CSS, those
7 restrictions were able to be bypassed and people
8 who had legitimately obtained DVDs were able to
9 play them on their legitimately obtained computers,
10 which I had never seen to be a problem.
11 Q. Who, if anyone, is working on creating
12 the open source DVD player you just referred to?
13 A. A lot of people are. I mentioned the
14 Livid project yesterday. I know that's one group
15 of people that are doing it. I know lots of people
16 in the Linux community are working on such things.
17 Q. Do you know any names of people in the
18 Livid group who are --
19 A. I remembered one since yesterday,
20 Matthew Pablovich. That's the only name I know.
21 Q. Did anyone in the Livid group ever try
22 to obtain a lease from DVD CCA?
23 A. No, I don't know that.
24 Q. Did you make any effort to find that
25 out?
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2 A. I didn't ask them specifically if they
3 did that, no.
4 Q. Do you know whether or not it would have
5 been possible for them to obtain a lease?
6 A. No, I don't even know if it's even
7 possible. I assume you mean license, not lease.
8 Q. I meant licensed. Thank you.
9 A. Sure.
10 Q. Describe the role that DeCSS is
11 currently playing, if any, in cryptographic
12 research?
13 A. As I said, DeCSS allows one to study
14 encryption that was used in CSS. That's my very
15 general understanding of how it can be used to
16 study this.
17 Q. What is the relationship, if any,
18 between DeCSS and legal consumer fair use?
19 MR. GARBUS: I object to the question.
20 The witness is not a lawyer.
21 MR. GOLD: Do you have the October 30,
22 I'm sorry, the May 30th -- May 3rd
23 declaration in front of you still?
24 Q. Turn to paragraph 14 at page 5.
25 Do you understand that in paragraph 14
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2 you refer to the role of DeCSS to aid legal
3 consumer fair use?
4 A. Uh-huh.
5 Q. Do you see that you said that?
6 A. Yes, I said that.
7 Q. What did you mean by legal consumer fair
8 use?
9 A. Again, I am not a lawyer, but I believe
10 I explained --
11 Q. Were you a lawyer when you wrote this?
12 A. No.
13 Q. Were you a lawyer when you signed it?
14 A. I have never been a lawyer. I believe I
15 explained this yesterday though.
16 Q. I am turning to paragraph 14 and I am
17 asking you what you meant when you swore to the
18 fact that the DeCSS program can be used as an aid
19 of legal consumer fair use.
20 A. By allowing someone to view something
21 which ordinarily they would be prohibited from
22 viewing and transferring onto another medium, such
23 as a videotape, this enables consumers to make use
24 of fair use with regards to DVD.
25 For instance, if you were making a
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2 report for your class and you wanted to include a
3 ten-second segment or a one-minute segment of
4 something that was only on DVD, you would not be
5 able to do that. On a videotape, yes, you would be
6 able to do that. From a book, yes, you would be
7 able to do that. DVDs are the first medium that
8 prohibit fair use. In my view.
9 Q. Do you know whether or not viewing an
10 entire movie constitutes fair use or has anything
11 to do with fair use?
12 MR. GARBUS: I object to the form of
13 the question. He is not a lawyer.
14 A. It's not my understanding as a nonlawyer
15 that that is covered.
16 Q. And as a nonlawyer when you talked about
17 legal consumer fair use, what specific forms of
18 fair use did you have in mind?
19 A. As I described, basically being able to
20 take a portion of something and use it in another
21 work. As has been done for however long fair use
22 has been around.
23 Q. Other than posting DeCSS did you do
24 anything else to support its existence?
25 MR. GARBUS: I object to the use of
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2 the term "support its existence."
3 MR. GOLD: Why?
4 MR. GARBUS: I don't know what it
5 means.
6 MR. GOLD: You don't know what it
7 means?
8 MR. GARBUS: I don't know what it
9 means. I don't know what it means.
10 MR. GOLD: Did you read his affidavit
11 or did you write his affidavit?
12 MR. GARBUS: I don't know what the
13 terms in those terms mean. If you want to
14 refer to something in the affidavit, I will
15 be glad to look at it.
16 MR. GOLD: I would have thought you
17 looked at it before.
18 MR. GARBUS: Perhaps not. I didn't
19 prepare it.
20 MR. GOLD: I don't know that.
21 Q. Turning to paragraph 14 at page 5 of
22 your -- I think declaration, the second line begins
23 the sentence as follows. "However, when it was
24 posted to the Internet, I recognized the importance
25 of such a program to a variety of disciplines,
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2 including reverse engineering an open-source DVD
3 player, cryptography and in aid of legal consumer
4 fair use." What did you mean by -- strike that.
5 The next sentence says, "I was quick to
6 show support for its existence." What did you mean
7 by support when you swore to this?
8 A. I consider support to be writing about
9 it, writing articles about it, educating people and
10 of course our eventual mirroring of the source code
11 in the program.
12 Q. Did you understand when you were doing
13 that you were helping to proliferate the DeCSS
14 code?
15 MR. GARBUS: I object to the form of
16 the question.
17 A. As I said, I saw that as support for the
18 existence of DeCSS, which I believe was covered for
19 the reasons stated.
20 Q. Was it your intent in doing the things
21 you testified to to have as many people in the
22 United States have DeCSS as was possible?
23 MR. GARBUS: I object to the form of
24 the question. He already stated he was a
25 journalist writing a story.
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2 Q. You can answer, sir.
3 A. Initially our only intent was to draw
4 attention to the fact that these people were being
5 intimidated, that this technological development
6 had occurred, and that was the extent of it. We
7 were not going around on a crusade trying to get
8 DeCSS into everyone's home. We were basically
9 writing an interesting story and showing people
10 something that was an interesting technological
11 development. Unfortunately, that turned us into
12 the threat=.
13 Q. After initially what was your purpose in
14 posting DeCSS?
15 MR. GARBUS: I will object to it. He
16 hasn't testified it changed.
17 MO MR. GOLD: Do you want to mark that so
18 that we can get that added to the list of
19 Mr. Garbus's objections that we are focusing
20 on.
21 A. Obviously once we became the target of
22 these legal threats, our position changed in that
23 we had to defend ourselves. We had to explain our
24 position, how all of a sudden we were perceived as
25 a threat and we had nothing to do with the
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2 development of the program in the first place.
3 So obviously our position in the whole
4 mix kind of was shifted. Instead of reporting on
5 something, we became the story, which is never
6 something that we were pursuing ourselves. I am
7 still kind of, you know, questioning why that
8 happened.
9 MR. GARBUS: Can we take our morning
10 break?
11 MR. GOLD: Sure. About ten minutes.
12 THE VIDEOGRAPHER: The time is
13 11:18 a.m. We're going off the record.
14 (A recess was taken.)
15 THE VIDEOGRAPHER: The time is
16 11:29 a.m. We're back on the record.
17 By MR. GOLD:
18 Q. Mr. Goldstein, what, if anything, would
19 have been different in the stories or editorials
20 you published on your web site if you removed from
21 them the letters "DeCSS"?
22 A. I am not sure I follow the question.
23 Q. Well, what would have been different
24 about what you were saying, what would have been
25 interpreted in a different way, if you eliminated
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2 the letters "DeCSS"?
3 A. Do you mean the letters, the program,
4 the source code, any reference to DeCSS?
5 Q. No, not any reference. If you just took
6 those five letters out of your stories, what would
7 have been different?
8 A. I don't understand the question.
9 Q. If instead of saying "DeCSS" you
10 referred to a program which decrypted CSS and never
11 used those five letters --
12 A. You mean not refer specifically to --
13 Q. -- quote, DeCSS.
14 A. Uh-huh.
15 Q. Close quote.
16 A. We would have had a very general story
17 about something without any specific information,
18 which is what our readers look for, specific
19 information, you know, what is it that we're
20 talking about? Show us what you mean. And we were
21 compelled to provide our readers with that.
22 Q. Are you saying what would have been
23 different -- if I understand, tell me if I am
24 wrong, you're saying what would have been different
25 is that nobody could have picked the DeCSS code up
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2 from your web site.
3 MR. GARBUS: Objection. That's not
4 what he said.
5 Q. Is that what you're saying or not?
6 A. If you're saying that if we had taken
7 the program off of our web site, obviously no,
8 people wouldn't have been able to get the program
9 from our web site. The story that we wrote had to
10 do with the fact that the program was already out
11 there and that people were being harassed because
12 they had it up on their site. And that's what the
13 story was about.
14 Q. Why couldn't you have said all that and
15 just not used the five letters "DeCSS" together?
16 A. Because that was the major part of the
17 story, that was what the program was called. So to
18 eliminate a major part of the story like that would
19 either be censorship or intimidation, and we don't
20 believe in either one.
21 Q. I didn't say that I was going to do it
22 or the government was going to do it. I asked you
23 what would have changed about your story --
24 A. Well, it's self-censorship.
25 Q. -- if you decided to eliminate.
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2 A. Right, it is self-censorship. You do it
3 for a reason. You do it because you believe you'll
4 be targeted if you don't and then you do something
5 that isn't right for the wrong reasons. As
6 journalists this is very important to us.
7 Q. Is it true or is it not true that the
8 main reason you put "DeCSS" in the stories and
9 editorials you wrote on your web site was that so
10 people could go to the web site and download DeCSS,
11 the entire program?
12 MR. GARBUS: Objection.
13 A. No, that's not the reason. If people
14 wanted to download DeCSS, there were hundreds of
15 sites they could do it from. They could go to any
16 search engine and find it that way.
17 Q. Why did you have to make it possible for
18 them to go to yours and pick it up?
19 A. Because we're a newsletter and this was
20 a bit of news that affected people who read our
21 magazine. It was of interest to people who read
22 our magazine. And we felt compelled to cover it,
23 and covering it includes giving as many details as
24 we can.
25 Q. But my question is, isn't it true if you
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2 took out "DeCSS" the only thing that would have
3 changed is people's ability to download DeCSS from
4 your web site?
5 MR. GARBUS: Objection. That's not
6 what he said.
7 MR. GOLD: I asked him if that was
8 true.
9 A. No. It's part of the story. DeCSS is
10 part of the story. We provide our readers with
11 firsthand information, and that was information
12 that we provided them.
13 Q. When you wrote the story about DeCSS in
14 your hard copy magazine, nobody could go to that
15 magazine and pull down the code, could they?
16 A. Well, you can't really put a program in
17 a magazine like that, no.
18 Q. Do you remember writing on your web site
19 that DeCSS is a free DVD decoder that allows people
20 to copy DVDs?
21 A. No, as I said yesterday, that was not my
22 writing.
23 Q. Someone else wrote it?
24 A. Yes.
25 Q. And you identified who?
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2 A. Our webmaster.
3 Q. And you didn't see it before it was put
4 there?
5 A. No, I saw it before, and I take
6 responsibility for it being there.
7 Q. Is it true?
8 A. No, that's inaccurate, because as I have
9 testified, that does not enable people to copy
10 DVDs. You can already copy DVDs.
11 Q. Why would you allow an inaccurate
12 statement to be published on your site?
13 A. Because in emerging technology, even we
14 don't always get the facts right, and this is one
15 particular case where we didn't understand the full
16 implications of the program at the time.
17 Q. Do you mean at the time that you
18 published this on your web site, I take it you're
19 telling me you did believe that DeCSS was a free
20 DVD decoder --
21 MR. GARBUS: I will object.
22 Q. -- that allows people to copy DVDs; is
23 that true?
24 MR. GARBUS: I will object to it.
25 That's not what he testified.
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2 MR. GOLD: Didn't say it was. I asked
3 him a question.
4 A. At the time my understanding was that
5 the program allowed people to view things in that
6 particular way and that with the proper type of
7 hardware and software you would be able to copy
8 certain files. But I didn't have a full
9 understanding of what the implications were.
10 At that particular point in time, the
11 main story as far as we were concerned was the fact
12 that this was technology that people were being
13 intimidated into taking off their web sites. We
14 didn't have a chance to fully explore what was
15 being done with the technology. Once we did, then
16 it became clear.
17 Q. What is simply unclear to me from your
18 statement, and I apologize for asking again, but I
19 can't understand what you're saying, so I will try
20 again.
21 A. OK.
22 Q. At the time this was published, that
23 DeCSS is a free DVD decoder that allows people to
24 copy DVDs, at the time that was published on your
25 web site, you believed that that was a true
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2 statement, didn't you?
3 MR. GARBUS: I object to it. The
4 witness has already testified that
5 someone --
6 MR. GOLD: I'm going to ask you not to
7 coach anymore.
8 MR. GARBUS: I'm not. I am just
9 stating the witness has already testified --
10 MR. GOLD: OK, that's enough for your
11 objection.
12 A. I mean, I answered this question, but
13 that my understanding of how the technology worked,
14 that that's what it was about. I did not see that
15 as the issue at that point in time.
16 Q. At the time you understood the
17 technology to be that, i.e. a free DVD decoder that
18 allows people to copy DVDs, did you remove DeCSS
19 from your web site?
20 A. I don't think we had even started
21 posting it at that point. That was before.
22 Q. Are you sure?
23 A. I can't say for certain. I don't
24 remember specific dates involved. But at that
25 point we were reporting on people being intimidated
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2 and taking it off their sites. And we didn't quite
3 understand what the program did ourselves. We just
4 knew that telling people to take down source code
5 on a web site was unprecedented.
6 Q. Did you ever publish on your web site
7 the idea that you wanted as many people as possible
8 all throughout the world to mirror the DeCSS files?
9 A. After we were targeted we did express
10 the -- for people who wanted to show support, we
11 expressed that as a valid way of showing support,
12 yes.
13 Q. Did you exhort others to mirror DeCSS in
14 order to further cryptographic research?
15 MR. GARBUS: I object to the question,
16 exhort. I don't know what you mean by that.
17 A. We told people who wanted to support us
18 that that was a valid form of expression.
19 Q. Did you do it, did you ask people to do
20 that to further cryptographic research?
21 A. We told people if they wanted to support
22 us that this was a valid way of doing it. Whatever
23 their reasons, whether it was for freedom of
24 speech, whether it was for reverse engineering,
25 cryptographic research, that was up to them. We
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2 didn't crawl into their heads and figure out their
3 motives. We said if you wanted to support us, we
4 considered this a valid way of doing it.
5 Q. Did you exhort others to mirror the
6 DeCSS file for purposes of reverse engineering?
7 MR. GARBUS: I object to the form of
8 the question.
9 A. My previous answer I think answers
10 that word for word.
11 Q. Did you exhort others to mirror DeCSS
12 files in order to further fair use?
13 MR. GARBUS: I object to the form of
14 the question.
15 A. Again --
16 MR. GARBUS: He's already asked and
17 answered.
18 A. -- I've already answered that.
19 Q. That's all right. You can answer it
20 again.
21 A. As I just said, we told people if they
22 wanted to support us, that whatever their
23 reasoning, whatever they felt, you know, the
24 purpose for mirroring the sites, the files, we
25 consider that a valid form of expression.
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2 Q. So you didn't have the slightest idea of
3 what all these people would do if they downloaded
4 DeCSS or if they got DeCSS from your web site.
5 A. Are you talking about the people who
6 mirrored or the people who downloaded from the
7 mirrors?
8 Q. People who mirrored.
9 A. Well, we knew what the people who
10 mirrored were doing, they were mirroring. They
11 were simply putting the files up and explaining on
12 their web sites what the issues were about and
13 basically educating people about it.
14 Q. Did you have any idea what all of those
15 people would do with DeCSS that they now possessed?
16 MO MR. GARBUS: I will object to what they
17 now possessed. He already testified that it
18 had been up a long while before and that
19 other people had possessed it.
20 MR. GOLD: Would you mark that again,
21 please, that particular objection.
22 A. First of all, there is no indication
23 that they received the program from us, because the
24 program was all over the place. Mostly they were
25 posting opinions and facts about the case and
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2 educating more and more people about it. Posting
3 the actual code was more of a symbolic type of a
4 thing. But actually talking about the issues was
5 what we were encouraging. That's what I think a
6 lot of people did.
7 As I mentioned yesterday --
8 Q. How do you know who did that?
9 A. I'm sorry?
10 Q. How do you know who did that?
11 MR. GARBUS: Will you let him finish
12 his answer.
13 A. Should I finish my answer before?
14 Q. You hadn't?
15 A. I had one sentence. As I mentioned
16 yesterday, most people that I -- in fact, I don't
17 know anybody who has actually used the program. So
18 I can't testify as to what people did with the
19 program. I am not aware of anyone ever using the
20 program.
21 This became a story that was of great
22 interest to people in the community. And that's
23 what we were trying to, um to have people become
24 educated on this, basically talking about the
25 issues and why they were important to them and we
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2 encouraged people to think about them.
3 Q. When you did post DeCSS and at present
4 when you're linking to other sites that post DeCSS,
5 is it true that any member of the general public
6 with Internet access can take it and download
7 DeCSS?
8 A. Yes, it is.
9 Q. Who removed the posting of DeCSS after
10 the January 20 injunction?
11 A. Who physically moved the files? I
12 believe it was both myself and my webmaster. I
13 think my webmaster is the one who actually hit the
14 keys, if that's what you're after.
15 Q. You're currently linking to other sites
16 that post DeCSS?
17 A. We have a list of links to other sites
18 that still have the files up, yes.
19 Q. In order to transmit DeCSS to as many
20 people throughout the world as possible, does it
21 make any difference whether you post DeCSS or link
22 it to others who post DeCSS?
23 MR. GARBUS: I object to the form of
24 the question. How does he know that?
25 MR. GOLD: We'll find out.
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2 A. It's not something that I really know
3 the efficiency of how, how to best get a file out.
4 I would imagine we're not doing it in the most
5 efficient way possible, which I think is further
6 testament to the fact that we're not in the
7 business of distributing this file. We're
8 basically trying to get information out about it
9 and to spread education.
10 Q. If somebody takes or downloads DeCSS
11 from someone who is posting it, how do they do
12 that? Describe it to me.
13 A. There are a number of different ways.
14 On the web they could click on a link, on that
15 other person's site, which would start a download
16 to their hard drive.
17 You could also use a method known as
18 FTP, where you basically open a connection and then
19 specify the file you want to download. It
20 basically involves downloading however many files
21 are there.
22 Q. One of the ways that anyone can download
23 DeCSS from someone who is posting it is just to put
24 his mouse on the DeCSS and click once?
25 A. Usually you have to click twice to
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2 indicate where in the hard disk you want to put it,
3 but that's close to what you have to do, yes.
4 Q. He clicks twice.
5 A. You have to go to the site. You have to
6 select the file. You have to tell your computer
7 where to put the file. I think you might have to
8 verify after that as well.
9 Q. If a person wants to download DeCSS and
10 he goes first to someone who's linking to a site
11 that posts DeCSS, what does he have to do?
12 A. Do you mean a site such as ours?
13 Q. Yes.
14 A. There's an additional step in that he
15 would have to go to the page that has a list of
16 other sites that have that information. He would
17 have to physically himself go to that site and
18 then --
19 Q. By clicking on?
20 A. By clicking on the link, then his
21 computer executes a command to go to a different
22 site. And at that point it's out of our site and
23 he does whatever that site -- he follows whatever
24 instructions are on that site or he looks at
25 whatever information is on that site.
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2 Q. But if that site simply has DeCSS up on
3 its first page, or the link will go to the first
4 page and all that person would have to do is click
5 on the DeCSS, right?
6 A. However their site is laid out. He
7 would have to click however many times they specify
8 on that particular site if the file was even there.
9 If it's on a different page, he might have to click
10 a few more files. Basically what the list of links
11 is is a list of sites where he can find information
12 or the actual program.
13 Q. So it's pretty simple, is it, to
14 download DeCSS if one starts with your site which
15 links to other sites that post them?
16 MR. GARBUS: Object to the form of the
17 question.
18 A. I consider it to be pretty simple no
19 matter what site you go to. You can go to Yahoo or
20 Alta Vista and find it just as easily. So to me
21 it's an easy thing. I don't know. I can't put
22 myself in the heads of other people.
23 Q. Is Yahoo now linking to sites that post
24 DeCSS?
25 A. Well, yes, if you type DeCSS into a
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2 search engine, you will get links to all the sites
3 that have then, so yes.
4 Q. When you posted DeCSS was it in object
5 code form?
6 A. I can't really say. That's a technical
7 thing. Because I have never actually examined the
8 files myself. I never had occasion to --
9 Q. So you have no idea?
10 A. I am not sure what format they are in,
11 no.
12 Q. With respect to the sites you're now
13 linking to, are those sites all carrying DeCSS in
14 object form?
15 A. I can't say what's on each of those
16 sites.
17 Q. What about what's on any of them?
18 A. I know it's in source code form, object
19 code form, Different formats. But there's no way I
20 can swear to what every single site has. There are
21 different sites. Some of them have changed.
22 MR. GARBUS: Mr. Gold, if you leave a
23 space certainly he can find out what it is
24 on his site and he can tell you that.
25 THE WITNESS: No, I can't. It's not
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2 on my site anymore.
3 MR. GARBUS: Well, when it was on your
4 site could you find it?
5 THE WITNESS: I don't know how. It's
6 not there.
7 MR. GARBUS: My attempt to be helpful
8 was a failure.
9 Q. What is object code?
10 A. I imagine it's --
11 Q. Do you know?
12 A. It's -- I am not really --
13 Q. If you don't know, tell me you don't
14 know.
15 A. I feel like an idiot, but I don't really
16 know specifically how to define it.
17 MR. GARBUS: Don't be an idiot and
18 don't speculate.
19 A. The source code.
20 Q. Is it true that you don't know what
21 source code is?
22 A. I know what source code is. It's
23 basically the printed -- the printed words involved
24 in a computer program that later get compiled into
25 an actual program.
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2 So basically the source code is the meat
3 of the whole thing. That's where you can analyze
4 what the program does, how it does it, think of
5 better ways for it to work more efficiently, and
6 learn from it that way.
7 Q. How if you know does object code differ
8 from that?
9 A. I am not familiar with object code. I
10 am not a computer programmer.
11 Q. Would object code of DeCSS be helpful to
12 a cryptographer?
13 A. I imagine any form would be helpful to
14 someone who knew what they were talking about.
15 Q. Is it true that any member of the
16 general public with Internet access could prior to
17 January 20 access 2600.com and directly download
18 DeCSS?
19 A. If it was after when we put it up and
20 before when we took it down, yes.
21 Q. Before the injunction.
22 A. Yes, anyone who could access our site
23 would be able to download it.
24 Q. How will knowledge gained from DeCSS
25 allow future programs to develop better DVD
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2 players, if you know?
3 A. Well, as -- my opinion on the matter is
4 that it would for one thing enable you to develop
5 better encryption so that this kind of thing
6 doesn't happen again or so that it takes longer for
7 it to happen again.
8 Q. How will the knowledge gained from DeCSS
9 allow future programmers to fast forward through
10 commercials or to the part of the movie they want
11 to see?
12 A. I'm sorry, give me the first part of the
13 question.
14 Q. Yes.
15 MR. GOLD: Could you read the question
16 back.
17 (A portion of the record was read.)
18 A. By understanding the access controls
19 that are contained within CSS, by understanding
20 that and figuring out ways to bypass them or change
21 them, one can get around those playback controls,
22 playback controls being the things that control how
23 you view the film. Not whether you can view the
24 film, but how you view it.
25 MR. GARBUS: May I hear the answer,
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2 Mr. Gold?
3 MR. GOLD: Of course.
4 (A portion of the record was read.)
5 Q. Do you know what a temporary RAM copy of
6 a movie is?
7 A. Not specifically, no.
8 Q. Do you know how it differs, if at all,
9 from a copy that is made to a permanent computer
10 file?
11 A. I can only speculate.
12 Q. I prefer you give us only your
13 knowledge.
14 MR. GARBUS: Don't speculate.
15 Q. Did you ever advise visitors to the 2600
16 web site that they shouldn't take DeCSS if they
17 just want to copy a DVD?
18 A. Yes, I believe that was around the same
19 time where we thought that there was some
20 relationship between DeCSS and copying. So that
21 statement could very well have appeared on our
22 site.
23 Q. Did you change the statement when you
24 thought you learned something different from
25 copying movies?
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2 A. No, it's our view that a news story, if
3 it makes a mistake, the mistake lives with the
4 story and we just move on from there. We don't try
5 and rewrite the past.
6 Q. Are you serious?
7 A. We wrote it back then. For us to go
8 back and rewrite it with the date from the past I
9 think would be dishonest.
10 Q. Why did you advise visitors to your site
11 not to download DeCSS if they just wanted to copy a
12 DVD? Why did you give them that advice?
13 A. Well, with the knowledge we had at the
14 time --
15 Q. Yes.
16 A. -- we wanted to make sure that people
17 were following this for the right reasons.
18 Basically that this was a discussion about
19 technology, about how a particular form of
20 encryption worked, about reverse engineering. And
21 that was the real issue. It wasn't about, you
22 know, what you could get for free or, you know, how
23 much you could get away with. That's not what
24 we're about. We're about education. We wanted to
25 make sure that that's why people took an interest
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2 in this.
3 Obviously we can't control what people
4 do. But we wanted to make it clear where we were
5 coming from on this.
6 Q. Can you control what you do?
7 A. Oh, certainly.
8 Q. Well, then why did you stop saying don't
9 take down, don't download DeCSS if all you want to
10 do is copy a DVD? Why would you have changed that?
11 A. Well, we changed it when we realized it
12 had nothing to do with copying DVDs. So it became
13 kind of pointless for us to continue saying that.
14 Q. Did you believe it would have been
15 illegal to make a copy when you wrote, when you
16 were advising people not to take DeCSS if all they
17 wanted to do was copy the movie?
18 A. Again, I am not a lawyer. I don't know
19 the specific laws, but certainly I would consider
20 it to be illegal and immoral at the very least to
21 copy anything that's not yours.
22 Q. Was one reason that you advised viewers
23 not to take DeCSS if they wanted to make a copy of
24 it, the movie, the fact that you believed it would
25 have been illegal, so you wanted to tell them that?
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2 MR. GARBUS: Objection.
3 Q. That either was a reason that you had or
4 it wasn't.
5 A. That was a concern.
6 Q. It was a concern.
7 A. Definitely would have been a concern if
8 we thought it was illegal, yes.
9 Q. Who told you that you couldn't copy a
10 movie if you downloaded DeCSS?
11 A. After the story became a little bit more
12 well established, numerous people --
13 Q. You can't name any of them?
14 A. I didn't write down people's names.
15 MR. GARBUS: I don't think he finished
16 his answer.
17 A. Basically these are the people that we
18 saw at conferences, at 2600 meetings, people who
19 had called up the radio show or sent us random bits
20 of E-mail. It just became general knowledge that
21 that's what this program did and it didn't do this.
22 And once we understood more, how the
23 technology worked ourselves, we were able to get it
24 right.
25 Q. Did you ever consult any expert or
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2 someone you recognized as an expert to find out if
3 you could copy a movie once you downloaded DeCSS?
4 A. I talked with people starting with I
5 believe the early part of this year. I think at
6 the Linux Expo earlier this year I talked to a
7 number of people at a panel discussion.
8 In fact, I remember at the panel
9 discussion I even asked one of the lawyers there
10 who had helped write the Digital Millennium
11 Copyright Act if there were any cases of DeCSS
12 being used to copy files. He wasn't able to name
13 any.
14 Q. I assume you can't remember the name of
15 either one of those people.
16 A. I am not good with names.
17 Unfortunately.
18 Q. What about Internet names like Zerb or
19 Blip or Blup or Fluff or things like that?
20 A. No.
21 Q. You can't even remember one by its
22 Internet name.
23 A. See, this is just a general widely
24 accepted view that this cannot be done. I don't
25 remember specifically who first told me. It's just
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2 something that everybody knows.
3 Q. Is it the view of the experts in this
4 case who have submitted affidavits on your behalf?
5 A. Yes.
6 Q. How do you know that?
7 A. Well, I mean, I --
8 Q. Why do you say it is?
9 A. Even without looking at it --
10 Q. You didn't read the affidavit and you
11 didn't talk to them about it.
12 A. I didn't talk to them personally.
13 Q. And you didn't read the affidavit.
14 MR. GARBUS: I think he said that he
15 read some of it --
16 A. Yeah, I glanced at affidavits. I am
17 not sure exactly what parts I missed. But the
18 overwhelming prevailing view is that it's simply
19 not possible. This is not a copying mechanism.
20 MR. GOLD: Let's mark this as
21 Exhibit 6.
22 (Plaintiffs' Exhibit 6, series of
23 documents on web sites and web listings,
24 marked for identification, as of this date.)
25 Q. Mr. Goldstein, what is the first page of
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2 Exhibit 6? I only asked you about the first page.
3 A. I am not sure what you asked me.
4 Q. What is it?
5 A. This looks like another web site that
6 mirrored the file or had a list of sites
7 themselves.
8 Q. Do you know if they were replying to
9 your exhortation to help with respect to DeCSS?
10 MR. GARBUS: I object to the form of
11 the question. He didn't -- that was not his
12 testimony.
13 MR. GOLD: I asked him if he knew
14 whether this web site published this
15 document because of his request for help in
16 the fight against the movie companies.
17 MR. GARBUS: I object to the form of
18 the question.
19 A. We encourage people to express
20 themselves and this is an example of someone
21 expressing themselves in ways that we would
22 certainly not sanction, or not support, rather.
23 Because I think it's rather immature. I think a
24 lot of the facts are wrong and it just goes to show
25 that you cannot control what people say on the Net.
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2 Lots of times things aren't entirely right. So
3 this is not a fair representation of any position
4 that we hold.
5 Q. Well, it did result from your exhorting
6 other web sites to help.
7 A. I don't think we exhorted.
8 MR. GARBUS: Object to the form of the
9 question.
10 A. We basically explained to people how
11 they can express themselves as well if they so
12 chose. And this is an example of somebody -- this
13 didn't help us in any way. This is somebody
14 expressing themselves in an immature way. We can't
15 control it. It hurts us as well as it helps us.
16 We just explained to someone how they can do it.
17 Q. Didn't it help you that they were
18 posting DeCSS?
19 A. No.
20 MR. GARBUS: I'll object to it.
21 Q. Can you tell they were posting DeCSS
22 from what is on page 1?
23 Why are you flipping? I'd rather you
24 didn't.
25 A. I'm sorry.
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2 Q. And stay with the first page so you can
3 concentrate a bit?
4 A. OK, on the top I see a link, but again,
5 this is text. I have no idea if that's a real link
6 or just something that went somewhere else.
7 Q. Have you ever seen this site?
8 A. I am not familiar with this site, no.
9 Q. Now, when it says after number 3, "The
10 Men Behind The Madness, 2600.com," what does that
11 mean?
12 A. I guess that's their view of us. "The
13 men behind the madness" is not a view I share. But
14 that's their perception and it's their right to say
15 it.
16 Q. I think the second sentence reads,
17 quote, "Oh yeah and if you bitches (government)(DVD
18 ho's)(Feds) can't get the right facts, just don't
19 say anything you dumbasses, period."
20 What did "DVD ho's" mean, h-o apostrophe
21 s?
22 A. Without the help of anthropologists, I
23 don't think I can really interpret this.
24 Q. The last line, "DON'T FUCKING COMPLAIN,
25 YOU FUCKING DESERVE IT, YOU RICH FUCKING SNOBS,"
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2 that refers to who?
3 MR. GARBUS: I will object to it. It
4 speaks for itself. From reading it I can't
5 tell who it refers to.
6 A. I have no idea who this person is
7 talking to. I mean, it's -- I don't see how I can
8 interpret something that I am completely unfamiliar
9 with as far as where it comes from or what they're
10 trying to say. I get a vague sense that they --
11 they are trying to support us, but just not doing a
12 very good job of it in my view, but I am not going
13 to interpret what they meant.
14 Q. Did you make any effort whatsoever to
15 isolate your transmission of DeCSS to sites that
16 were involved with education or fair use or
17 cryptography?
18 A. Do you mean control who got to our site
19 and download the file?
20 Q. Control who got 2600, who got DeCSS from
21 2600.
22 A. We don't have controls like that for
23 anything we do. Anybody is free to read our web
24 site. We don't ask who is reading our web site.
25 We don't keep track of the people doing it. We
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2 don't ask their motives, so no.
3 Q. Is it true that when you posted DeCSS
4 you knew in fact that all sorts of people who had
5 nothing to do with education or fair use or
6 cryptography or reverse engineering would download
7 it from your site?
8 A. If they so chose.
9 Q. You knew that.
10 A. I didn't know they would do it, but I
11 knew it was possible, certainly.
12 Q. Didn't you believe it was far more
13 possible that people who had nothing to do with
14 cryptography or fair use would download it since
15 there was ever so much more of them than they are
16 of those who are involved in education and
17 cryptography?
18 A. No, I had no reason to jump to that
19 conclusion.
20 Q. Wasn't that common sense?
21 MR. GARBUS: Objection. It's not
22 common sense.
23 MO MR. GOLD: Do you want to mark that too,
24 please.
25 A. I believe the people that would download
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2 these files were people who were interested in the
3 technology. And as I have already said, it's not a
4 method for copying DVDs, so you would have to know
5 something of what you're doing in order to even
6 make use of these files. So while people may have
7 downloaded it, I don't think they understood it or
8 got anything out of it other than clicking on
9 something.
10 MR. GOLD: Martin, I tried to avoid
11 this, but since there will be many more of
12 your witnesses who will be testifying in the
13 next two weeks, I am going to have to bring
14 this up with the court, I believe. I will
15 review it when I get it, but I think you're
16 doing something that's uniquely improper. I
17 know you disagree and I really didn't want
18 to bother the court with it. I pleaded with
19 you to stop, but I guess it has to be. I'll
20 review it.
21 Q. In any event, after reading page 1 of
22 Exhibit 6, would you say that this web site or the
23 persons connected with this web site were involved
24 in any educational purpose with respect to DeCSS or
25 cryptography or --
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2 A. It's impossible for me to assess the
3 knowledge of the people behind this. For all I
4 know, these are, you know, educated people writing
5 things just to be funny. But my initial view is
6 that it's immature people that don't really know
7 the facts. They just want to do some posturing.
8 Q. Well, then, do you believe these people
9 may well be cryptographers?
10 A. It's impossible for me to say.
11 Q. You don't know whether they are or not?
12 A. No, how could I say? It's text on a
13 page.
14 Q. Do you know any cryptographers?
15 A. I know some, yes.
16 Q. Any like this?
17 MR. GARBUS: Objection.
18 A. Any like this? Not that I have ever
19 seen, no.
20 Q. But that doesn't give you any clue with
21 respect to these people.
22 A. I have no idea who these people are.
23 That's what I am trying to say.
24 Q. Turning to page 3 of that exhibit, the
25 third page, they are not numbered, it's the one
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2 that begins, and I quote, fuck the system, close
3 quote. Do you have it?
4 A. I do.
5 Q. What web site is this?
6 A. I am not sure.
7 Q. Can you tell by looking?
8 A. Actually, it's a different site than the
9 one we were just looking at. Cyberarmy.com,
10 according to the URL at the bottom of the page.
11 Q. Did you ever see this page before?
12 A. I don't recognize it, no.
13 Q. Near the end of the text the following
14 sentence appears. "Sites like this one are going
15 up by the minute." Close quote. Is that true?
16 Were they?
17 A. A lot of sites went up. I don't know if
18 it was by the minute. I don't know how many
19 exactly. We eventually had to stop putting them up
20 ourselves because we just didn't have the manpower
21 to be constantly adding sites.
22 Q. You don't know anyone connected with
23 this site?
24 A. No.
25 Q. Did you say you didn't think you had
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2 seen it before?
3 A. I don't think so, no.
4 Q. Was it attached to your affidavit, do
5 you know?
6 A. No, I don't recall seeing that before.
7 Q. Now, this particular document taken from
8 the web site that you mentioned contains about 18
9 pages. What do you understand pages 2 through 18
10 to be?
11 A. It looks like a list of sites that also
12 have DeCSS on them.
13 Q. Do you believe the site from which this
14 document comes was trying to promote cryptography?
15 A. I can't really testify to their motives.
16 Just by reading these few words here. I see some
17 factual misconceptions. I see some things that are
18 accurate. It's impossible for me to say what the
19 motivation of the people behind this is.
20 Q. Well, do the words forming the title of
21 this message, "fuck the system," give you any view
22 as to or any clue as to what the motive was?
23 A. I think it would be wrong for me to
24 judge without any further information as to what
25 these people are saying. How do you define what
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2 system is it they are talking about? Maybe they
3 are talking about a computer operating system. Who
4 knows? I think it would be wrong for me to jump to
5 conclusions.
6 MR. GARBUS: Can I ask you a question,
7 Mr. Gold? The date on this is March 23rd.
8 At least that seems to be the date on the
9 bottom of this. Do you know where these
10 documents came from?
11 MR. GOLD: Yes.
12 MR. GARBUS: OK. Would you care to
13 tell us?
14 MR. GOLD: No.
15 Q. Turning to the document in Exhibit 6
16 that follows the 18-page document, --
17 A. "Technomancers of Dark Technology"?
18 Q. That's it. What site does that appear
19 to come from?
20 A. According to this, it says
21 "isupport2600.8m.com. Actually, the site would be
22 just the latter part of that, 8m.com. And they
23 named the machine.
24 Q. Are you familiar with the site?
25 A. No.
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2 Q. Or the people involved with the site?
3 A. No, I don't recognize any names, no.
4 Q. Looking at the page, can you tell
5 whether this is a response to your message to other
6 web sites to help in the fight against the motion
7 picture companies?
8 MR. GARBUS: I object to the form of
9 the question.
10 A. It's a response. I don't know if it's a
11 response because of us, because it says 2600 and
12 all of the computer users. It could be a response
13 to any of the other sites that had links up.
14 I can't even say for sure that the links
15 were here, because all it says is "files can be
16 found here." But there is no indication that the
17 files actually were there.
18 Q. Is there a clue in the words, quote,
19 support 2600 in the DVD encryption dispute, close
20 quote?
21 A. Yes.
22 Q. What clue?
23 A. Well, support 2600 obviously means
24 they support us. It doesn't mean it's a response
25 to something we said. They could have gotten this
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2 from someone else as well.
3 Q. Is it true that your site only links to
4 sites which have furnished you with their URL?
5 A. Yes.
6 MR. GARBUS: Can I hear the question
7 again?
8 (A portion of the record was read.)
9 Q. Is it true that those sites which have
10 posted DeCSS or mirrored your site containing DeCSS
11 that in fact supplied you with their URLs did so to
12 enable 2600 to link with them?
13 MR. GARBUS: Object to the form of the
14 question.
15 A. Not necessarily. Lots of sites existed
16 already and in fact, our mirror, our list of
17 mirrors was not the biggest out there. There were
18 other such lists. And sometimes what we would do
19 is simply look at the other list and copy some of
20 those ones.
21 So actually, I have to correct myself.
22 It wasn't always submitted to us. Sometimes we
23 went out and saw another site that had more links
24 and just added to our list.
25 Q. When you saw the other sites that you
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2 added to your list of sites you were linking to,
3 did you read them and see what they said?
4 A. All we did was very quickly, and
5 actually, we had a few people do this because there
6 were just so many of them, just quickly go through
7 and see if in fact they were links to the files
8 there, because that's what we were representing
9 them as, as links to DeCSS.
10 Q. The text would have been irrelevant.
11 A. The text was not something we focused on
12 only because there was so much of it.
13 Q. I don't know what that means, I didn't
14 focus on it. Did you not totally ignore it?
15 MR. GARBUS: Objection.
16 A. We didn't tell people to go and ignore
17 it. But basically what we told the people who were
18 helping us was, are the files there? If so, we add
19 it. Because we had to go through hundreds of sites
20 in a relatively short period of time.
21 Q. Is there any difference between that and
22 ignoring the text on the site?
23 MR. GARBUS: I object to the form of
24 the question. It's argumentative.
25 A. Only that we didn't tell people to
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2 ignore it. We told people to tell us if the site,
3 if the file was there. So, no, we didn't tell
4 people to ignore it. Did they ignore it to find
5 the file? Perhaps.
6 Q. So that I gather, those people who you
7 instructed in the way you just testified to would
8 have included the site even if the site talked
9 about copying the movie?
10 A. It's possible.
11 Q. You wouldn't --
12 A. It's possible. We didn't proofread
13 other people's sites.
14 Q. When you encouraged people to download
15 DeCSS, did you regard that as a journalistic
16 function?
17 A. Well, I think we encouraged people to
18 download.
19 MR. GARBUS: Object to the form of the
20 question.
21 A. To download DeCSS. We had it there for
22 people who were interested in it and we had a story
23 about it. We didn't tell people to download it who
24 had no interest in it obviously.
25 Q. Were you linking to any sites before the
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2 court issued its injunction?
3 A. We initially started by linking to sites
4 back in the fall.
5 Q. How many is that?
6 A. I can't recall specifically how many.
7 Q. So you say you started by linking in the
8 fall of '99.
9 A. Uh-huh.
10 Q. Thereafter did you stop and solely post?
11 A. We started -- my recollection is we
12 started by linking. And then as those sites were
13 threatened, we became a link ourselves by posting
14 the program on our site. And then there was no
15 need to -- we might have still kept up a list of
16 links in addition to that.
17 Q. But you don't know that.
18 A. I don't know for sure. I would have to
19 look at the records.
20 MR. GARBUS: Leave a space in the
21 deposition. We'll get you an answer.
22 MR. GOLD: The problem with that is I
23 don't know whose answer.
24 MR. GARBUS: We'll tell you.
25 A. It's also on the web site. As I said,
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2 we keep our pages up except for when courts tell us
3 to take them down. But it's all there the way it
4 was.
5 Q. Did you increase your linking after the
6 court injunction?
7 A. We didn't increase so much as more sites
8 were submitted to us and more sites popped up and
9 it became, you know, it just kind of got out of
10 hand actually, because we couldn't handle the
11 number that were coming to us.
12 Q. How many did you put up that you linked
13 to yourself?
14 A. Me personally?
15 Q. Anybody at 2600.
16 A. It would have to be over a hundred, and
17 this is within a few days of the injunction.
18 Q. So it's over a hundred links that you
19 yourself put up.
20 A. That I was aware of. I don't know how
21 many specific --
22 Q. That was right after the court's
23 injunction?
24 A. Yes. I believe it was --
25 Q. Why?
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2 A. -- the day of or the day after.
3 Q. Why?
4 A. It was basically a reaction that various
5 people in the community had.
6 Q. A reaction to the -- I am talking about
7 you. You put up a hundred. What reaction did you
8 have to the court injunction that caused you to do
9 that?
10 A. Our immediate reaction to the court
11 injunction was to take the files down. We had
12 already had, I believe, links to other sites, and
13 when we started getting massive submissions, we
14 realized that we had to post those as well as part
15 of the story, because that was becoming a part of
16 the story.
17 Q. Now, you testified I believe that 2600
18 itself decided to link to over a hundred sites
19 pretty soon after the court injunction.
20 A. Uh-huh.
21 Q. Why?
22 A. Because as I said, that became the
23 story. The fact that all these other sites were
24 popping up and that this was something that simply
25 wasn't going to go away, that became part of the
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2 story and we had to show what was going on. That
3 was a very major part.
4 Q. Under oath I am asking you didn't you do
5 the linking of those one hundred sites because you
6 were showing the court, well, if you think you can
7 stop us, you can't?
8 A. No, that was not the --
9 Q. Not at all.
10 A. That was not our rationale behind it.
11 The rationale was that this is a program that is
12 out there. We followed the injunction to the
13 letter. In fact, the court even addressed the
14 issue of linking and found that it was a different
15 issue and did not rule on it. So we took that to
16 mean that it was a different issue. And that
17 linking was perfectly OK.
18 And if we were going to be shut down,
19 you know, we were going to be told not to link,
20 then obviously all the other sites that were
21 linking, including Yahoo and Alta Vista, would have
22 to be told the same thing.
23 Q. Did you have a conversation with any
24 lawyer --
25 A. Yes.
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2 Q. -- before you linked?
3 A. Um --
4 Q. After the court issued its injunction.
5 A. We had conversations with lawyers at
6 that time.
7 Q. Don't tell me what they were. Could you
8 name who they were?
9 A. Allon Levy, Robin Gross, the Electronic
10 Frontier Foundation in California.
11 MR. GOLD: Before you switch, Martin,
12 you told me you wanted to break at 12:30.
13 We said yes, if that's when you want to
14 break. And you have also kindly volunteered
15 to try to finish tonight even if we have to
16 stay a little late.
17 MR. GARBUS: Yes.
18 MR. GOLD: I can't tell if it will or
19 not.
20 THE VIDEOGRAPHER: The time is 12:26
21 p.m. and this completes tape number 3 of the
22 videotape deposition of Mr. Emmanuel
23 Goldstein.
24 (A luncheon recess was taken at
25 12:26 p.m.)
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2 A F T E R N O O N S E S S I O N
3 (Time noted: 2:06 p.m.)
4 THE VIDEOGRAPHER: The time is 2:06
5 p.m. and this begins tape number 4 of the
6 videotape deposition of Mr. Emmanuel
7 Goldstein.
8 E M M A N U E L G O L D S T E I N , resumed and
9 testified as follows:
10 EXAMINATION BY (Cont'd.)
11 MR. GOLD:
12 Q. Mr. Goldstein, do I understand correctly
13 that your testimony was that you were posting and
14 later linking to other sites that were posting
15 DeCSS because that posting and that linking was a
16 part of your journalistic story?
17 A. That was part of the story, yes, that's
18 correct.
19 Q. When did you write the story?
20 A. Well, the initial story was written I
21 believe it was early November on our site, and that
22 was the story that described the development which
23 at the time we were -- we had only sketchy details
24 about. We reported what we knew. And then later
25 we became part of the story, and that's when we
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2 started writing a lot more about it.
3 Q. You didn't write about it every day, did
4 you?
5 A. No.
6 Q. How long were you posting?
7 A. I'm sorry, how long what? Was I
8 posting?
9 Q. Posting DeCSS on the 2600.
10 A. I think we first posted it in late
11 November.
12 Q. And you posted it late November right up
13 until the court injunction?
14 A. Yes. As soon as the court injunction
15 happened, I believe it was January 20th, that's
16 when we took it down.
17 Q. So you were posting for close to two
18 months.
19 A. Yes.
20 Q. 24 hours a day.
21 A. Well, it's just up. Yes.
22 MR. GARBUS: Can I hear the end of it?
23 (A portion of the record was read.)
24 Q. Can you tell me why that posting for two
25 months every day 24 hours a day was necessary to
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2 your story?
3 A. Well, it's --
4 MR. GARBUS: I will object to it.
5 A. Every story on our site is up 24 hours a
6 day constantly until the end of time. So it's not
7 like we were sitting there saying, you know, it's
8 up 24 hours day and night. It was a story and
9 people continued to have an interest in that story,
10 and that interest continues till today.
11 Q. Can you tell us why posting every day
12 was necessary for the story?
13 A. Well, as I've said --
14 MR. GARBUS: Objection.
15 A. -- we did not post it every day. We
16 posted it once and it stayed up.
17 Q. You didn't take it down, did you?
18 A. No. It's one action, posting it. We
19 took it down when we were ordered to take it down.
20 Q. Yes, but you could have taken it down
21 any day within that two-month period, couldn't you
22 have, if you wanted to?
23 A. If we wanted to, yes, but we didn't take
24 it down.
25 Q. Why not?
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2 A. Because we felt it was right to have it
3 on our site. We felt it was part of the story.
4 Q. But I am trying to understand why the
5 words "DeCSS" on your site for two months was
6 necessary to the story.
7 A. Because that is what the story centers
8 around. For instance, if the story centered around
9 the picture, we'd show the picture. And this was
10 the picture. This was the story that everybody was
11 focused on. To take it down without a court order
12 would have been wrong in a journalistic sense.
13 Q. But you weren't writing a new story
14 about DeCSS every day, were you?
15 A. No, and we didn't post it every day. We
16 posted it once.
17 Q. And you didn't take it down for two
18 months, right?
19 A. We didn't take anything down.
20 MR. GARBUS: Objection. Asked and
21 answered.
22 Q. How long have you been linking to other
23 sites that post DeCSS?
24 A. As I said earlier, I believe we had
25 links up from the beginning. That is, before we
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2 even had it up on our site. I would have to check
3 to make absolutely certain about that, but the vast
4 majority of links started coming into us after the
5 injunction was granted.
6 Q. And you have been linking to many other
7 sites posting DeCSS ever since?
8 A. We posted the list of what we had
9 received, and this went on for I think a few weeks
10 until we just got overwhelmed with it, and we had
11 to do other things, so we stopped updating it.
12 Q. So you have been linking to many other
13 sites containing DeCSS for about five months at
14 least?
15 A. I would say that's about right, yes.
16 Q. Every day.
17 A. Well, as I said, we don't take things
18 down.
19 Q. That's because you decide not to, I
20 gather.
21 A. Uh-huh.
22 Q. Why was linking to over a hundred or
23 more sites that post DeCSS necessary to your
24 journalistic story?
25 MR. GARBUS: Objection.
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2 A. Because that was part of the story. The
3 story was that hundreds of sites were springing up
4 and showing support in various ways, all of which
5 had one thing in common, that they were posting the
6 source of this program, and we thought that was the
7 story right there. That was something that
8 deserved attention, to show just how many people
9 were out there and what they were doing.
10 Q. And it was necessary to the story to
11 show that every day for five months?
12 A. It was the story. And the stories stay
13 up. So the story will be up forever. Until --
14 Q. I see.
15 A. That's how it works.
16 Q. Well, is it true that every story you
17 write in your magazine is vibrant and alive every
18 single day for the rest of eternity?
19 MR. GARBUS: Objection.
20 Q. Or just your life?
21 A. Are you referring to the magazine or to
22 the web site?
23 Q. Web site.
24 A. I wouldn't say that they all keep
25 interest as long as this one has, no.
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2 Q. But if you didn't write a story every
3 day about DeCSS, why would you have to keep linking
4 to DeCSS every day 24 hours a day for five months?
5 A. I am not sure I understand that
6 question.
7 Q. You don't understand it.
8 A. I am not sure I understand what you're
9 saying.
10 MR. GOLD: Could you read it back to
11 the witness.
12 (A portion of the record was read.)
13 A. I am not sure if you're saying that by
14 our writing stories that we're perpetuating the
15 need to link. Is that your --
16 Q. No, you weren't writing stories every
17 day for five months.
18 A. We wrote stories whenever something new
19 happened in the case.
20 Q. But every single day whether you wrote
21 stories or didn't about DeCSS you linked to other
22 sites containing DeCSS for over five months?
23 A. As I've said, the story that we wrote
24 that had all the links remains up. Because that
25 was a story -- I believe it was written in January,
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2 and that has the list of all of the links, and
3 that's just there. Just like the story we may have
4 written last week will be there in five months.
5 Q. But it stays there because you don't
6 take it down, isn't that correct?
7 A. We don't take down our stories, no.
8 Q. You take them down when the court orders
9 you to.
10 A. When the court orders us to take
11 something down, we take it down.
12 Q. Is there any other reason that you can
13 give me for why this posting and linking that we
14 have been discussing are part of your journalistic
15 story? You don't have to repeat anything that
16 you've said already. I am asking if you know any
17 other reasons or have any other reasons for saying
18 that.
19 A. I think I've covered it all.
20 Q. I see. Will you keep linking to the web
21 sites posting DeCSS even if the pace of
22 technological change allows rapid transmission of
23 movies over the Internet?
24 MR. GARBUS: I object to that. You're
25 asking the witness to speculate.
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2 A. My answer is yes because it's
3 irrelevant.
4 Q. Do you plan to keep linking to web sites
5 posting DeCSS even if the pace of technological
6 change makes the storage of movies on a hard drive
7 much easier, takes much less space?
8 MR. GARBUS: I object to the question.
9 It calls for speculation.
10 A. I would say the same thing. It's
11 irrelevant to what the story is about.
12 Q. So you will keep right on linking or
13 posting if the court allows to.
14 MR. GARBUS: I object.
15 MR. GOLD: Strike that.
16 Q. Then I gather no matter what
17 technological developments may bring, your plans
18 are to keep posting and linking DeCSS unless the
19 court stops it.
20 MR. GARBUS: Objection. Calls for
21 speculation.
22 A. I can repeat what I said about we keep
23 stories on our web site because it's how we present
24 our stories. We don't take things down. If we're
25 directed to take it down, we take it down.
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2 Q. So the answer to my question is yes.
3 A. I suppose, yes.
4 Q. Are your plans to keep linking to DeCSS
5 web sites even were you to determine that hundreds
6 of thousands of movies were being transmitted over
7 the Internet?
8 MR. GARBUS: Object on the grounds it
9 calls for speculation.
10 A. Again, I have to repeat.
11 Q. Your answer would be the same.
12 A. My answer would be the same.
13 Q. So your current plans are to do all of
14 these things no matter which of the changes that I
15 have just mentioned take place; is that true?
16 A. Again, it's -- I can't speculate on
17 that. Our site is a representation of new stories.
18 That is part of the news story.
19 Q. So your plans would remain to keep
20 posting or linking.
21 MR. GARBUS: I will object.
22 Q. Is that true?
23 MR. GARBUS: I will object on the
24 grounds of it calls for speculation.
25 A. I can't answer any further based on
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2 that.
3 Q. Did you testify before, I can't
4 remember, that you were familiar with Napster?
5 A. I said I used it maybe once or twice.
6 Q. So you know how it works?
7 A. I have a vague knowledge of how it
8 works. I am no expert.
9 Q. Do you know that it's a system which
10 allows members of the public with Internet access
11 to share files of songs with each other?
12 A. My understanding of it is that it allows
13 people to -- it's kind of like a directory. It
14 points people at sites.
15 Q. So they can exchange music? Is that
16 your understanding?
17 A. I don't know what the intent is. I
18 mean, that's --
19 Q. Well, when you used it did you use it to
20 download some music you found on Napster?
21 A. I used it to see how the program worked,
22 to see what the fuss was all about, to see if it
23 actually worked.
24 Q. Did you download music?
25 A. I listened to one song.
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2 Q. Does that mean you downloaded it on to
3 your hard drive?
4 A. Yes, it was downloaded. That's the way
5 it works. You connect to somebody's site and you
6 listen to it.
7 Q. Do you know whether or not there are
8 sites in the United States today that offer such
9 file sharing for both movies and records?
10 A. I am not aware of any.
11 Q. If you were to find out that there were,
12 would you stop posting or linking to DeCSS?
13 MR. GARBUS: I object on the grounds
14 that it calls for speculation.
15 Q. If you found that out would you plan to
16 keep on, do you now plan to keep on posting and
17 linking?
18 A. I can't answer that. It's based on a
19 speculation. I can't really --
20 Q. You don't know one way or another; is
21 that right?
22 A. Other than what I have already testified
23 to.
24 Q. Well, you've already testified that it's
25 not the point. But I don't know if that's your
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2 answer to this question.
3 MR. GARBUS: I object to --
4 Q. Is it?
5 MR. GARBUS: -- your summing up what
6 he's testified to.
7 Q. Is that right?
8 A. My answer is what I have given, which
9 is --
10 Q. Which is what?
11 A. What I've said.
12 Q. Which is what?
13 MR. GARBUS: I object. He's already
14 testified that it was speculation.
15 Q. Which is what, Mr. Goldstein?
16 A. Which is that it's irrelevant to the
17 story.
18 Q. And you would keep posting and linking.
19 A. We have already posted. It's not a
20 question of continuing to post. It's a question of
21 we've done this.
22 Q. You wouldn't take down your posts or
23 your links?
24 A. We take down our sites when we're
25 legally obligated to take down our -- our links
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2 rather.
3 Q. Someone would have to get another
4 injunction if one wanted to get you to take it down
5 at that point. Is that true?
6 MR. GARBUS: I object. He didn't say
7 that. He said --
8 MR. GOLD: Well, let's ask him what he
9 said. I asked him if that were true.
10 MR. GARBUS: No, no. He said --
11 MO MR. GOLD: Do you want to mark this
12 again?
13 MR. GARBUS: That's not what he said.
14 Can we hear the witness's last answer.
15 (A portion of the record was read.)
16 Q. Do you know whether or not the vast
17 majority of sites to which you were linking contain
18 object code versions of DeCSS?
19 MR. GARBUS: He has already -- you
20 have already asked him that and he's already
21 answered.
22 Q. You can answer.
23 A. As far as my understanding, it's in a
24 variety of formats. I am not -- I am not certain
25 if object code is one of them.
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2 Q. Does that mean you don't know?
3 A. I don't know for sure.
4 Q. Can you read object code?
5 A. No.
6 Q. Can you read source code?
7 A. Not very well.
8 Q. Are there any sites to which you link
9 where you know that DeCSS is being used in
10 connection with reverse engineering?
11 A. As I said before, I don't know the
12 motivation of what's going on in the heads of
13 people that are running other sites. All we know
14 is those sites have programs. That's the extent of
15 our knowledge.
16 Q. Do you understand that people involved
17 in reverse engineering could get DeCSS without
18 anyone posting or linking?
19 MR. GARBUS: Object to the form of the
20 question.
21 A. Sure.
22 Q. How?
23 A. If they already had the program -- if
24 they already had CSS themselves and they were able
25 to figure it all out, they could do it without even
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2 being on the Net at all.
3 Q. Isn't there a chat room where people who
4 are involved in reverse engineering of CSS go to?
5 A. That I don't know.
6 Q. You don't know?
7 A. No.
8 Q. Is there a chat room to which people who
9 are involved in cryptographical research concerning
10 DeCSS can go to?
11 A. Again, I don't know.
12 Q. Did you ever try to find out?
13 A. No.
14 MR. GARBUS: Can I ask you a question?
15 I won't if it's an interference.
16 MR. GOLD: It's interference. I
17 prefer you just to say object and nothing
18 else whenever you do, but I don't know that
19 you will do that.
20 Q. Do you still have your May 3rd affidavit
21 in front of you?
22 A. There's no date on it.
23 Q. There is on the back page.
24 A. Oh, on the back page, OK. Yes, I do.
25 Q. If lawyers do something it's going to
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2 come out backwards.
3 Turning to paragraph 20 at page 7, I am
4 going to count down from the top, beginning with
5 the line that says "Our web site...."
6 A. OK.
7 Q. Now, one, two, three, four, five,
8 six -- make it five lines down, "This web site is
9 an on-line...." Do you see that?
10 A. Yes. "This web site is an on-line
11 supplement to the content published in the print
12 magazine, with an emphasis on current news. It
13 does not exist, as said in the injunction, to
14 distribute illegal code. If we were interested in
15 doing this, we could easily do a more efficient job
16 and a less public one."
17 Q. How?
18 A. Well, I am not involved in the world of
19 piracy, but I do know that if you wanted to
20 distribute something illegally you don't, um, you
21 don't put it out for the whole world to see.
22 You -- criminal networks don't advertise. They
23 exist secretly. They're a lot more efficient when
24 people don't know about them. If we believed this
25 was a crime, we wouldn't be doing it like this.
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2 Q. Well, you say here, "If we were
3 interested in doing this...." which I think means
4 the distribution, the illegal distribution of the
5 code.
6 A. Uh-huh.
7 Q. ".... we could easily do a more
8 efficient job and a less public one."
9 I am asking you how you would do that.
10 MR. GARBUS: Objection. He just
11 answered.
12 MR. GOLD: No, he didn't.
13 A. It's a theoretical question. I am not a
14 criminal. I am not somebody who distributes things
15 illegally. But I imagine if I was to do something
16 like this, the way I wouldn't do it would be to put
17 it on my web site and tell everybody about it.
18 Q. It was my impression that you were
19 swearing to the statement that we could do a more
20 efficient and less public job if we were distributing
21 illegal code. I am asking you why you said that.
22 MR. GARBUS: I object to it. The
23 sentence speaks for itself.
24 Q. How would you do a more efficient, less
25 public job?
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2 MR. GARBUS: Object. He just
3 answered.
4 A. I thought I just answered this too.
5 But what I am trying to point out is that if we
6 were involved in a criminal conspiracy of some
7 sort, the way we are doing it now, the way we have
8 it up on our web site, would be absolutely the
9 worst, most inefficient way to both engage in the
10 crime and distribute the criminal material.
11 Q. What would be the better way?
12 A. To have an organized network of people
13 that keep quiet, that don't tell the entire world
14 about it, to surreptitiously distribute the code
15 everywhere, were it to be used in a bad way for a
16 particular crime. And that's not what this code is
17 about. So I don't think it's relevant at all.
18 Q. Weren't you describing the Internet?
19 People with false names, putting things out. How
20 does anyone find you except by writing you an
21 E-mail? How do they locate you? How do they talk
22 to you in person?
23 A. The same way --
24 MR GARBUS: Objection.
25 A. -- people locate anything on the
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2 Internet, through search engines, through publicity
3 at various --
4 Q. That just gets one to a web site.
5 A. What else are you asking?
6 Q. Well, how would they find a person? How
7 would they find a person to conspire with?
8 A. Again, if you're involved in a crime --
9 I truly can't answer that, because I am not
10 involved in a crime. So I don't know how they
11 would --
12 Q. Currently. I mean, it's not like you
13 never did. It's not like you were never involved.
14 MR. GARBUS: Objection.
15 Q. You have some --
16 MR. GARBUS: Objection.
17 Q. -- information about such things.
18 A. All I can do is theorize on that.
19 Q. All you can do is, as I remember it, is
20 break into other people's computers.
21 MR. GARBUS: Objection.
22 Q. All you did do in the eighties --
23 MR. GARBUS: Objection.
24 Q. -- that was criminal. Is that right?
25 MR. GARBUS: Objection.
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2 A. First of all that predates the
3 Internet. And second of all, it's not all I did in
4 the eighties.
5 Q. Paragraph 21, below paragraph 20, will
6 you read the first two sentences of that paragraph,
7 sir?
8 A. "The sites containing DeCSS mirrors to
9 which we currently link are very diverse in nature.
10 Some of the sites have simply put the files up as a
11 form of protest."
12 Q. And the next sentence.
13 A. "Others explain exactly why they are
14 doing this as a social commentary."
15 Q. You go on to say, "Some are juvenile in
16 nature, using a tone that we would not employ
17 ourselves"; is that right?
18 A. As that site demonstrated, yes.
19 Q. The site that said what?
20 A. The site that you introduced as Exhibit 6.
21 Q. What was juvenile about it?
22 A. The language was juvenile. The attitude
23 was juvenile.
24 Q. Which language?
25 A. The multiple cursing and antigovernment
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2 DVD "ho" speak. It's not at all how we would
3 present ourselves.
4 Q. Are there any web sites containing DeCSS
5 mirrors who are doing it solely to copy DVDs and
6 allow other people to copy DVDs?
7 A. I have never heard of one.
8 Q. Is the answer you don't know or just --
9 A. My answer is no, I've never heard of
10 one.
11 Q. No, you never heard of them.
12 Which sites do you know that have put
13 DeCSS on their web site solely as a form of social
14 protest? Could you name those?
15 A. I would have to have a list. I would
16 have to go through them. I can think of -- I can
17 think of cryptome.org as a site that has posted the
18 source code. And I know they are not juvenile in
19 nature.
20 Q. Which sites post DeCSS or link to DeCSS
21 that are composed only of professionals who go into
22 great detail as to what the programs do and how
23 they are used?
24 A. Again, you have to go down the list.
25 Q. Can you name any?
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2 A. Not off the top of my head, no.
3 Actually, that's not true. I can think of one.
4 OpenDVD.org is one that has very intelligent views.
5 If I thought about it for a long time, I could
6 probably come up with a second one. There are
7 various --
8 Q. Out of how many would you estimate?
9 A. I am not saying that's all there is out
10 of all --
11 Q. No, I am just asking you how many sites
12 are there today that post or link to other sites.
13 A. Oh, there are thousands. I mean, we
14 have only a couple of hundred on our site, but
15 there are thousands.
16 Q. I see. And you can think of only two
17 who do so as a form of social protest?
18 A. If you ask me how many were juvenile, I
19 can think of even less, because I don't memorize
20 URLs of web sites.
21 Q. Is it your understanding that DeCSS
22 enables users to defeat or bypass regional coding?
23 A. That's my understanding, that it's one
24 of the capabilities.
25 Q. Where did you get that understanding
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2 from?
3 A. From technical information that I have
4 seen. Talked to people on the Net.
5 Q. Can you name the people who identify any
6 of the information?
7 A. I believe I have seen this on a couple
8 of the sites that I mentioned just now. I have
9 seen mention of that. I know from talking to
10 people at conferences, from various other
11 exchanges, at 2600 meetings and just various casual
12 conversations that that is -- that is one of the
13 things that DeCSS is able to accomplish, defeating
14 region coding.
15 Q. And what is region coding?
16 A. Region coding is an artificial control
17 that was implemented I believe by the DVD CCA to
18 prevent someone from watching a DVD in a different
19 country. It's the equivalent of, if it happened to
20 a CD, you would not be able to buy a CD in England
21 and listen to it here. Something that we're used
22 to doing.
23 Q. Do you know why plaintiffs use regional
24 coding?
25 A. I have no idea. I tried to figure that
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2 one out.
3 Q. You can't imagine.
4 A. I imagine it has something to do with
5 money. That's as far as I can go.
6 Q. Anything having anything to do with
7 money is bad.
8 MR. GARBUS: Objection.
9 A. I didn't say that.
10 Q. How much do you make a year from your
11 magazine?
12 A. In the range of 40 to 45,000.
13 MR. GARBUS: Let the record indicate
14 that I gave Mr. Gold the tax returns. I
15 don't think it's relevant to this
16 deposition, but since it's more confidential
17 for a period of time, and rather than have a
18 difficult time with Mr. Gold, those
19 documents were furnished to him.
20 MR. GOLD: You are correct insofar as
21 you go, but you travel such a short
22 distance. You came in here after lunch
23 today with a package that you put on the
24 table and you said contained some tax
25 returns.
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2 I assume you're telling the truth. I
3 haven't had a chance to look into it yet.
4 That's the rest of it.
5 MR. LITVACK: Let me interject. I
6 believe you said they were marked
7 confidential?
8 MR. GARBUS: The whole deposition is
9 marked confidential.
10 MR. LITVACK: Oh, these documents.
11 MR. GARBUS: No, but I think
12 everything that goes into the deposition, as
13 I understand it, is confidential, all
14 documents, everything, until such time --
15 MR. GOLD: Until ten days, I think.
16 MR. GARBUS: Until ten days and then
17 there has to be some kind of a procedure or
18 practice that we go through.
19 Q. Is it your understanding that your
20 linking to sites containing DeCSS is a fair use?
21 A. That my linking in particular?
22 Q. Would you like the question read back to
23 you?
24 A. I'm sorry?
25 Q. Do you want the question read back?
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2 A. Yes.
3 (A portion of the record was read.)
4 MR. GARBUS: I object to the question
5 on the grounds it calls for a legal
6 conclusion.
7 A. I am trying to understand it. That's --
8 Q. You don't have any understanding then
9 about that.
10 A. It's -- it calls for a legal
11 interpretation.
12 Q. No, I am asking you for your
13 understanding as a journalist, if you have any.
14 A. I can't say I do on that particular
15 issue.
16 Q. OK. Is it true, sir, that you believe
17 you are lawfully linking to sites that post DeCSS?
18 A. Yes.
19 Q. Is a part of the reason for that belief
20 the use made of DeCSS by people who go to your web
21 site and then link over to another site that
22 contains DeCSS and then download it?
23 MR. GARBUS: I object to the form of
24 the question.
25 Q. In other words, I'm asking you whether
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2 it's true that you believe it's appropriate for you
3 to link because of the use some people make of
4 DeCSS. Like cryptography.
5 MR. GARBUS: Objection.
6 Q. Like cryptographical research. I'm
7 sorry, those are the same thing. Like reverse
8 engineering.
9 MR. GARBUS: I object to that. He has
10 already testified. It's a bad question.
11 A. Our reason for initially posting the
12 material was for that very reason, and the linking
13 is a continuation of that. So I suppose that would
14 be yes.
15 Q. I see.
16 A. If I understand the question correctly.
17 Q. And is it true that you can think of no
18 other way to give DeCSS to those people other than
19 by linking in the manner that you are doing it?
20 MR. GARBUS: I object to that. That
21 isn't what he said.
22 A. We're not thinking of ways to get it to
23 people. We've posted it, we did post it on our
24 site. It was part of a story. The linking is also
25 part of the story.
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2 As I said before, if we wanted to
3 distribute it to people, I am sure there are a lot
4 more efficient ways of doing that. That's not what
5 it was about.
6 Q. So you didn't link to other sites
7 containing DeCSS and you didn't originally post to
8 help cryptographers and to help reverse engineers.
9 MR. GARBUS: I will object.
10 Q. Is that true?
11 MR. GARBUS: I will object to the
12 question.
13 A. It's related, I mean, it's all part of
14 the quest for knowledge, and that's why the story
15 is of interest and that's why we put the story on
16 our site, so that people who are interested in
17 reverse engineering and cryptology, research in
18 that field, would have something to study, as
19 something to analyze and perhaps study something
20 else as a result of this.
21 MR. GOLD: I am going to ask the
22 reporter to read that question back to you
23 and I am going to ask you if there's
24 anything you have to add to your answer.
25 (A portion of the record was read.)
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2 Q. Is it also true that you believed it was
3 appropriate to post or link the sites that post
4 DeCSS so that anyone in the country or in the world
5 who wanted to know about DeCSS could get DeCSS?
6 A. We believe knowledge should be available
7 to anyone, yes.
8 Q. So the answer is yes?
9 A. Yes.
10 Q. You referred in your testimony to movie
11 reviewers who make clips of movies.
12 A. Uh-huh.
13 Q. And that was one fair use of DeCSS. Do
14 you remember that?
15 A. That's an example of fair use, period,
16 yes.
17 Q. Can't the same thing be done by using a
18 CSS-licensed DVD player?
19 A. That's not my understanding of how the
20 technology works.
21 Q. It's not.
22 A. No. You wouldn't be able to copy to
23 another medium such as videotape.
24 Q. Do you know whether a CSS-licensed DVD
25 player enables the user to fast forward through the
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2 movie?
3 A. My understanding is that it does not.
4 Q. Where did you get that from?
5 A. I heard that from, again, numerous
6 sources in the community.
7 Q. Which community?
8 A. The Linux community, open source
9 community, the hacking community. And it's -- I
10 believe it's well documented in the specs for CSS,
11 that if that is not commonly used at the moment,
12 that the capability certainly exists for that to be
13 currently used. That CSS enables that.
14 Q. If you have a view, what is your view of
15 how quickly technology is accelerating in regard to
16 the delivery of substantial amounts of file content
17 over the Internet?
18 MR. GARBUS: I will object to the
19 witness speculating. Go ahead.
20 A. It's advancing. I wouldn't say it's
21 advancing extremely fast. It's advancing.
22 Q. And that knowledge comes from --
23 A. Personal experience.
24 Q. -- all these communities that you're
25 talking about.
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2 A. No, that's personal experience.
3 Obviously things do get faster. But they are not
4 getting extremely fast. I think we're a ways away
5 from that.
6 Q. How long is that, quote, a ways away --
7 MR. GARBUS: I object to the form of
8 the question.
9 Q. -- close quote?
10 A. I would consider it many, many years.
11 Q. And you heard that from these same
12 communities that you chat with?
13 A. I have heard that, but I have also
14 witnessed it myself.
15 Q. How can you witness things that haven't
16 happened?
17 A. No, I have witnessed the change, say,
18 between the early nineties and now. And even if
19 you were to triple that, it still would not be
20 anything near what would be needed, what would be
21 needed to facilitate this.
22 Q. Is it your understanding that it's
23 impossible to create an unbreakable encryption
24 system?
25 MR. GARBUS: I object to the question.
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2 I will allow the witness to answer. He is
3 not a cryptographer.
4 A. My understanding is that it's highly
5 unlikely. Highly unlikely. And I think that's my
6 personal view on it, my understanding.
7 Q. In your view is any encryption system no
8 matter how sophisticated subject to cracking if
9 enough time and effort is devoted to it?
10 MR. GARBUS: I will object to it. He
11 is not a cryptographer.
12 A. My understanding is that given enough
13 time and effort, yes.
14 Q. And your understanding comes from?
15 A. Mostly my personal view. Also
16 supplemented by various conversations I have had
17 over the years with people seeing how technology
18 advances.
19 MR. GOLD: We'll mark this as
20 Exhibit 7.
21 (Plaintiffs' Exhibit 7, 2-page
22 document, 2600 News Archives, December 1999,
23 marked for identification, as of this date.)
24 Q. Turning to the second page of that,
25 Mr. Goldstein, the beginning of the first full
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2 paragraph, second sentence, the beginning of the
3 first full paragraph on page 2, could you read the
4 first several sentences.
5 A. "We don't take this kind of thing
6 lightly. We knew there were certain risks attached
7 to our taking a stand on the DVD issue. That in
8 itself seems incredible to us as we had nothing to
9 do with the actual cracking of the encryption."
10 Q. What were the risks that you referred
11 to?
12 A. The risks were basically we had seen
13 people being threatened simply for having DeCSS on
14 their web site, something that we found to be
15 inconceivable. And we realized at that point, once
16 it started happening to us, or we -- actually, we
17 realized it as we posted the information on our
18 site that that could very well move over to us, as
19 it did, that there's risks involved in freedom of
20 speech. There always are.
21 Q. In answering to the last question you
22 used the expression what would "move over to us."
23 And I don't know what that means, but I am going to
24 ask the reporter to read you your answer and I am
25 going to ask you to tell me what that means, what
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2 would move to us.
3 (A portion of the record was read.)
4 Q. What would move over to us are the
5 words that are --
6 A. The threats, the intimidation.
7 Q. And the threats you're referring to are
8 threats of lawsuits?
9 A. Threats of lawsuits and actual lawsuits,
10 yes.
11 Q. And what intimidation? Is intimidation
12 something different from that?
13 A. No, I consider that intimidation right
14 there.
15 Q. But you do believe that people in this
16 country have a right to take others to court when
17 they feel their rights have been violated?
18 A. It's the American way.
19 Q. You don't like that way when you're on
20 the defendants' side?
21 A. I don't think anybody likes to be on the
22 defending side of it, but there's nothing illegal
23 about it if that's what you're asking.
24 Q. But it's intimidating.
25 A. Yes, it absolutely can be.
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2 Q. Can you think of any way to avoid that
3 kind of intimidation?
4 MR. GARBUS: I object to the form of
5 the question.
6 A. In this particular case I think some
7 kind of a dialogue, some kind of willingness to
8 learn from one's mistakes as far as developing
9 technology. I think there's a lot to be learned
10 here. I think we could have a strengthened
11 encryption system. We can have something that will
12 work and won't fall apart quite as quickly as this
13 did.
14 Q. Later in this column, I for the first
15 time take great pleasure in your writing, and the
16 words that give me that pleasure are contained in
17 the middle of the next paragraph beginning with
18 "They may very well." Would you read those two
19 lines?
20 MR. GARBUS: Mr. Gold, I think that if
21 you look at it, compliment aside, according
22 to the page you put down, this is not his
23 writing. Someone else's.
24 Q. Did you not write this?
25 A. I would have to look this over.
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2 Q. Why don't you give it a lookover.
3 MR. GARBUS: Excuse me, Mr. Gold. If
4 you look at the last sentence --
5 MR. GOLD: Mr. Garbus, there is no
6 question before the witness yet. Do you
7 think you can refrain from making a speech?
8 MR. GARBUS: I am trying to help you.
9 MR. GOLD: Good. I am grateful for
10 your instinct, but I would prefer you not
11 help me.
12 A. I think this was a collaboration. I
13 think most of the first part, including the first
14 two items before this, I mostly put together and
15 the rest is, um, the rest of the facts in here I
16 believe were done by our webmaster and I approved
17 it.
18 MO MR. GOLD: Mr. Reporter, before the
19 witness answered the question, Mr. Garbus
20 stated on the record that this was not his
21 writing. That statement was followed by the
22 witness's answer. I would like you to mark
23 that.
24 Q. Now, who wrote the two lines you read?
25 A. I believe that was written by our
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2 webmaster, but again, I can't be one hundred
3 percent certain because this was -- I am not sure
4 when this was written.
5 Q. I think you gave me his name once
6 before, but I forget it. Can you tell me who he
7 is?
8 A. His webmaster, E-mail address is
9 Macki@2600.com. His first name is Micah. And
10 that's pretty much -- I have met him a couple of
11 times and he is from California. That's the extent
12 of my knowledge.
13 Q. That's where he is now.
14 A. Yes.
15 Q. Do you have an address?
16 A. I don't have an address. I have an
17 E-mail address.
18 Q. And what is it?
19 A. Macki@2600.com.
20 MR. GOLD: Mr. Garbus, I would like to
21 take Macki's deposition, probably for about
22 two hours or an hour and a half.
23 MR. GARBUS: I would have to contact
24 him.
25 MR. GOLD: Would you?
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2 MR. GARBUS: I will try.
3 MR. GOLD: And let me know if -- can
4 you tell us how to make arrangements, or
5 perhaps make arrangements for us? One of
6 the times that we're all going to be out
7 there anyway.
8 MR. GARBUS: I don't know how we'd
9 work out those times, but yes, if I can.
10 MR. GOLD: It's going to be a very
11 fast thing. If we fit it at the very
12 beginning.
13 MR. GARBUS: I am not clear about one
14 thing. Maybe you can help me.
15 MR. GOLD: I would rather you not do.
16 After the deposition is over, we're off the
17 record, then I would be happy to discuss
18 with you anything you want to discuss.
19 Q. Did you read this before it was
20 published on your web site?
21 A. Yes.
22 Q. Did you believe it was true?
23 A. I believed it was -- yeah.
24 Q. Which prosecutions does this refer to
25 from the clause "A recent look at prosecutions"?
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2 A. This is probably referring to various
3 cases that have been in the hacker community,
4 namely, the Kevin Metnick case, the Bernie S case.
5 This is over the course of years. That's what is
6 meant by recent.
7 Q. Recent is how many years?
8 A. Several. Throughout the nineties. I
9 consider that to be recent. And --
10 Q. What new laws are referred to?
11 A. Laws like digital telephony, the DMCA,
12 Electronic Communications Privacy Act. Laws such
13 as that.
14 Q. Does this statement indicate 2600's view
15 that posting or linking to DeCSS was as a matter of
16 law illegal?
17 MR. GARBUS: I object to it. The
18 sentence speaks for itself.
19 A. I'm sorry. Can you ask that one more
20 time?
21 Q. Of course.
22 MR. GOLD: Would you read that back to
23 the witness.
24 (A portion of the record was read.)
25 A. No, absolutely not. We never thought it
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2 was illegal.
3 Q. Do the two sentences you just read mean
4 that before you were involved in the lawsuit you
5 knew it was inappropriate to post DeCSS?
6 A. No.
7 MR. GARBUS: Objection.
8 A. That's not what I said.
9 Q. Does the sentence, "A recent look at
10 prosecutions and new laws seems to pave the way for
11 just this sort of thing," mean that these
12 prosecutions and the decisions in them and the new
13 laws make it illegal to post DeCSS?
14 MR. GARBUS: I will object to the
15 witness interpreting sentences. The
16 sentences say what they say.
17 A. I don't see it that way.
18 Q. What way do you see it?
19 A. Could you read back the question?
20 Q. Certainly.
21 (A portion of the record was read.)
22 A. Basically I am trying to interpret what
23 the sentence is communicating in terms of this
24 case.
25 Q. Do you find that difficult to do?
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2 MR. GARBUS: Objection.
3 A. Basically what we were trying to say is
4 that there have been increasing numbers of
5 prosecutions in recent months, recent years, and
6 that something that was not considered to be at all
7 even questionably illegal could all of a sudden be
8 brought into court and people could wind up being
9 dragged through the legal system.
10 And what we had seen over many years
11 was, or recent years anyway, was people who just
12 got tired of the whole system who were dragged
13 through everything and were forced to give up
14 without ever having proven the case, having had the
15 case proven against them. So it's hard for me to
16 recapture the mood that was around when this
17 article was written because it was back in
18 December.
19 Q. I didn't ask you for the mood. I asked
20 you for what it says.
21 A. You have to sort of get into the mood to
22 see what the words are communicating and saying.
23 Q. I don't find that to be true when I read
24 The New York Times.
25 MR. GARBUS: I object to that.
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2 Q. Do you find that difficulty?
3 A. Well, this is an opinion piece. This is
4 different.
5 Q. When you're reading the editorial pages
6 of the The New York Times, do you find that not
7 knowing the mood of editorial writer?
8 MR GARBUS: Objection.
9 A. I think if you went back to, say, 1920
10 or something you might have some difficulty knowing
11 exactly what the person was talking about. We have
12 seen a lot changes over the months, so I am trying
13 to gauge exactly what was written and by who.
14 MR. GARBUS: I object to this
15 colloquy.
16 Q. Could you read the last sentence of the
17 same paragraph, sir?
18 A. "But all of the scare tactics in the
19 world will never erase the human need for knowledge
20 and the instinctive desire to figure out things,
21 regardless of whether or not we're, quote, supposed
22 to, end quote."
23 Q. What do the words "supposed to" mean in
24 that sentence?
25 A. I believe that's a reference to
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2 knowledge being regulated. In other words, people
3 being told that asking certain questions is wrong,
4 pursuing certain -- certain ways of figuring things
5 out is wrong. And I believe at that time we had
6 been hearing a lot of talk along those lines, that
7 it would be one day illegal to do -- to even think
8 in certain ways. So I think that's what this is
9 based on.
10 Q. Does the expression "regardless of
11 whether or not we're 'supposed to'" include the
12 concept of whether or not what we do is illegal?
13 MR. GARBUS: Objection. The sentence
14 speaks for itself.
15 A. Could you read back the question. I
16 want to make sure I answer it right.
17 Q. Sure.
18 (A portion of the record was read.)
19 A. I believe most definitely we did not
20 think anything that we were doing was illegal.
21 Q. I didn't ask you that. I asked you if
22 the words "regardless of whether or not we're
23 'supposed to'" includes the concept regardless of
24 whether or not these things are legal.
25 A. No.
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2 Q. It does not.
3 MR. GARBUS: I object to it.
4 A. Not in my understanding, no.
5 Q. Well, did you understand at the time
6 this article was written that a citizen in this
7 country was expected to and supposed to follow the
8 law?
9 A. Yes.
10 Q. Do you recall whether or not you ever
11 wrote and published on your web site the statement
12 that big companies manipulate the courts in this
13 country?
14 A. I need to see a particular quote.
15 Q. You don't remember whether or not you
16 ever said that?
17 A. Specifically in those words?
18 Q. In words or in substance.
19 A. It's possible. That's the best I can
20 do. It's possible. I don't know specifically if I
21 ever said that.
22 MR. GARBUS: Mr. Gold, can I suggest
23 you show it to him?
24 MR. GOLD: No. Can I suggest that you
25 not interrupt?
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2 I have to take a break, but I am going
3 to turn this over to my co-counsel for some
4 questions.
5 THE VIDEOGRAPHER: The time is 3:05 p.m.
6 We're going off the record.
7 (A recess was taken.)
8 THE VIDEOGRAPHER: The time is 3:14 p.m.
9 We're back on the record.
10 EXAMINATION BY
11 MR. LITVACK:
12 Q. Good afternoon, Mr. Goldstein. My name
13 the Mark Litvack. I am an attorney for the
14 plaintiffs in this action.
15 Your counsel indicated he handed us a
16 stack of documents this afternoon purporting to be
17 your tax returns. I have handed to you the entire
18 stack.
19 Can you just tell us what it is?
20 A. These are tax returns, both corporate
21 and individual, going back to 1995.
22 Q. I note they are not signed.
23 A. These are copies.
24 Q. Are they exact copies of what was
25 actually filed with the Internal Revenue Service?
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1 Goldstein
2 A. These are copies that my accountant
3 supplied, so they are as exact as was possible to
4 get as far as I know.
5 Q. So as far as you know, there is no
6 difference between this set and the set filed
7 absent your signature.
8 A. Right.
9 Q. Is there something in there that you
10 know is not true and you later had to go file
11 either a change or you looked at it later and said,
12 Jeez, I should have changed that, or to the best of
13 your knowledge is everything in there true and
14 accurate?
15 A. Everything in there is true and
16 accurate.
17 MR. GARBUS: Mr. Litvack, if there were
18 any supplemental returns --
19 THE WITNESS: Yes, they would be in
20 there too.
21 MR GARBUS: -- I will check with the
22 accountant and get it to you.
23 MR. LITVACK: I am not suggesting
24 there is. Sometimes people say, jeez, I
25 meant --
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2 THE WITNESS: Right.
3 MR. LITVACK: That's it with that
4 document.
5 Q. In the last document --
6 MR. GARBUS: Do you want to mark it?
7 MR. LITVACK: No, no need.
8 Q. -- you commented in this piece, it was
9 commented that "it's one more example of a powerful
10 corporate entity trying to intimidate a bunch of
11 individuals through lawyers, guns and money."
12 You chuckle now as I read that to you.
13 What's the chuckle?
14 A. Well, I am not sure if those are my
15 words. They're kind of -- I am not sure what the
16 word is. Strident maybe?
17 I can understand the -- I can understand
18 some of the emotion behind it, but I don't think
19 that's something that I would say in quite that
20 way.
21 Q. It's fair to say that that's not fair
22 and accurate totally as regards to this case.
23 A. It's an opinion. It's an opinion piece.
24 Q. Well, the "guns" part is pure hyperbole,
25 is it not?
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2 A. I think that's a reference to law
3 enforcement or, you know, whatever else the writer
4 may have been trying to convey.
5 Q. You talked earlier about some of the
6 sites being juvenile in nature. Do you remember
7 that conversation?
8 A. Today you mean?
9 Q. Today.
10 A. Yes.
11 Q. It's a quote from your declaration.
12 A. OK, yes, my declaration too.
13 Q. And you said, as I understand it, they
14 are juvenile in nature, I guess the example you
15 gave, the language they use.
16 A. Yes.
17 Q. Is that fair?
18 A. Well, the language they use, yeah, the
19 way they look.
20 Q. The example that was read to you earlier
21 using foul language --
22 A. Yes, this here.
23 Q. -- Exhibit Number 6, is an example of
24 that.
25 A. Uh-huh.
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2 Q. Is it fair to say though, are you
3 telling us that you yourself do not use that sort
4 of language in regards to the Internet or
5 communicating ideas?
6 A. I don't think so.
7 Q. Never. Never have.
8 A. I can't -- I don't think even twenty
9 years ago I would have used that kind of language.
10 Q. And specifically the kind of language
11 here is what word is it?
12 A. It's not so much the words. It's
13 just -- just the tone, you know, all caps and
14 basically targeting people and labeling people.
15 It's not the kind of thing I do.
16 Q. The foul language, is that something you
17 would do?
18 A. Again, language is something I think is
19 open to interpretation. This I consider to be foul
20 language. Does that mean every time those
21 particular words are used it's foul? We can have a
22 discussion about that. I'm not sure.
23 You might be able to point to me using a
24 word in some other context, and I don't think it
25 would have the same connotation as it does here.
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2 Q. Is there any words there that you
3 consider to be foul in and of themselves that you
4 would not use when it comes to the Internet?
5 MR. GARBUS: I will object to this. I
6 don't see the relevancy as to this case. If
7 you have something you want to show to him,
8 show it to him.
9 A. There are no words that I restrict
10 myself from using if that's what you're asking.
11 Q. Do you own the domain name 2600.com?
12 A. Yes.
13 Q. Is that the only domain name you have
14 owned?
15 A. No.
16 Q. What other domain names have you owned?
17 A. There are a bunch. There's various
18 other interpretations of that or iterations of
19 that -- 2600.Net, 2600.org. And there are other --
20 I wish I had a list in front of me. I am trying to
21 think of everything that we have. There are some
22 humorous sites that we have put up. A recent one
23 concerning "Horizon." We basically put up a site
24 called horizonreallysucks.com. It's probably one
25 of the ones you're thinking of. Just as kind of a
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2 forum for people to criticize a company. I mean,
3 there are others. Is there a particular one you're
4 interested in?
5 Q. Did you put up any in regards
6 specifically to this litigation?
7 A. For this litigation? I honestly don't
8 think so.
9 Q. You're sure about that.
10 MR. GARBUS: I object. He said he
11 honestly doesn't think so.
12 A. I'm honestly not sure. I mean, if you
13 know of one, please tell me and I'll --
14 Q. Have you ever owned a domain name with
15 the name "morons" in it?
16 A. Ah, OK. Now it's coming back to me. We
17 had -- we have a domain name with a foul word in it
18 followed by the word "morons."
19 Q. Do you want to tell us for the record
20 what the domain name was?
21 A. Yes, it's fuckingmorons.com, and it was
22 someone's -- I mean, someone at 2600, I forget
23 exactly who. It was really just -- I thought it
24 was funny. I thought it was just a joke. It would
25 be pointing to MPAA. But that's -- I think it's
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2 actually been pointed at different sites, not just
3 MPAA. It's been pointed -- it was pointed at us
4 for a while. It's been pointed at -- the beauty of
5 the Net is you can point sites wherever you want to
6 point them. It was just an example of humor.
7 So I don't -- I don't see that as
8 something necessarily immature, along that level.
9 Immature to a degree perhaps, but I don't think
10 anything other than just, you know, the kind of
11 joke you would see on late night TV or something
12 like that, cable.
13 Q. Was there any other purpose for creating
14 that domain name?
15 A. We didn't publicize it very much. Just
16 told a few friends I think.
17 Q. Do you know if you got any hits on it?
18 A. No, we don't keep that kind of
19 information. Actually, you would know, because I
20 think you have referral logs that would tell you if
21 people came in through there.
22 Q. Any other purpose though for creating
23 it?
24 A. Basically the real reason -- it was not
25 created with the MPAA in mind, I should point that
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2 out. It was created because registrars -- this is
3 really where it goes back to, registrars. There
4 used to be simply one in this country, Network
5 Solutions. Late last year, or actually over the
6 summer last year, it was deregulated. More
7 registrars came into existence. And all of a
8 sudden the rules that NSI had lived by for many,
9 many years, which restricted all use of any
10 four-letter word, all of a sudden those rules no
11 longer existed.
12 For a period of time, I think about two
13 days actually, every single iteration of a site
14 with one of those words was going fast. And it was
15 just -- this was well before any of this started to
16 happen. We just thought it would be fun to
17 register some of those and either use them as we
18 see fit in the future or give them away to people
19 to do whatever they want. They were going to go
20 anyway, so we figured we might as well get them and
21 play around with them. That's an example of one
22 the -- I guess that's about as childish as we get.
23 Q. Was that telling the story or reporting
24 the story as you see your job?
25 A. Well, we didn't report that story.
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2 That's just something we did behind the scenes.
3 Q. You said that 2600 is a journalistic
4 adventure that reports and tells the story. Is
5 that fair?
6 A. Yes.
7 Q. Is your using that domain name to, I
8 guess what you said, poke fun at the MPAA part of
9 telling the story?
10 A. That's not part are our journalistic --
11 Q. So 2600 --
12 A. -- duties.
13 Q. -- has other things to do other than
14 being journalists then. I guess that's now what
15 you're telling us.
16 MR. GARBUS: I object to the form of
17 the question. That's not what he's telling
18 you at all.
19 A. This is not something that is done as
20 2600. This is something that is done as
21 individuals just goofing around. It's just a joke.
22 Q. Who owns the domain name?
23 A. I do.
24 Q. Who is the owner? Tell me the name of
25 the owner of the domain name.
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2 A. Again, I would have to look at the
3 actual sites because there are a lot of -- a lot of
4 domain names I own. I believe it's Emmanuel
5 Goldstein. It could be slightly different, but
6 that's what I understand it to be.
7 Q. Do you own any other domain names with
8 four-letter words in it?
9 A. There are a few. I don't remember
10 specifically which ones. We just grabbed a bunch,
11 you know, just the fun of it.
12 Q. Why don't you tell us what else you own?
13 A. Like I said, if you show me a list I can
14 confirm it or deny it, but this is not something
15 that's paramount in my mind. In fact, a lot of
16 these sites I've forgotten about ever since we
17 grabbed a few of them.
18 Q. And the only one you remember is this
19 one now.
20 A. Because you brought it up, yes.
21 Q. Are there any others you use as you sit
22 and recall in regards to this litigation?
23 A. In regards to this litigation? That's
24 the only one I can think of that points to MPAA or
25 ever did point to MPAA. To be honest, I don't even
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2 know if it's pointing there now. It may have been
3 pointing there for a while and then pointing
4 somewhere else. I don't even remember. I've had
5 far more important things to worry about.
6 Q. Who linked it to the MPAA site?
7 A. I don't recall.
8 Q. Did you do it?
9 A. I don't recall if I did or not.
10 Q. Well, if you didn't do it, who else
11 could have done it?
12 A. Anybody who was on our site and has
13 route access and is able to change the
14 configuration files that would point.
15 Q. See, you told me you own the domain
16 name.
17 A. I own the domain name.
18 Q. So who else has authority to use your
19 domain name?
20 A. Anyone who has system administrative
21 privileges on my system, on 2600.com, is capable of
22 going into the files that designate where that site
23 points to and pointing it someplace else. It's
24 very simple.
25 Q. Who else is that?
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2 A. Our assistant administrator. I believe
3 our webmaster has that access as well. Our office
4 manager has that access. It's a very simple thing.
5 It's nothing complex.
6 Q. Anyone else?
7 A. Not that I know of.
8 Q. As you sit here right now you don't know
9 who actually created the link.
10 A. I can't swear to who created the link.
11 I am not saying I didn't do it. I don't remember.
12 This is not a major issue for me. It's a simple
13 joke, parody. I don't see its relevance at all.
14 Q. As you sit here right now, there is no
15 other link that you or anyone else at 2600 you know
16 created that would fall into this similar
17 characterization of a link.
18 A. Could you rephrase that a little bit?
19 MR. GARBUS: Object to the form of the
20 question.
21 Q. I am just trying to make sure. You
22 said, as I understand it, you don't remember right
23 now whether you did this or someone else on the
24 2600 staff did it.
25 A. Right.
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2 Q. I just want to make sure, is there any
3 other domain name that 2600 or you own that you
4 utilized in a similar way to this one?
5 MR. GARBUS: Object to the word
6 "similar." I am not sure what you mean.
7 Q. Do you understand what I mean by that?
8 In any way mentioning this litigation or impacted
9 by this litigation.
10 A. Specifically for this litigation, I
11 don't recall of any, no.
12 Q. It's fair to say the only reason you did
13 this and on this domain name was because of this
14 litigation.
15 A. As I said, the domain name was
16 registered well in advance of this litigation.
17 That was not the reason for registering the domain
18 name.
19 Q. Your use of tying it to the MPAA, isn't
20 it fair to say that was only because of this
21 litigation?
22 A. It was related, I am sure, yes, because
23 people felt a certain way about that.
24 Q. I said "only" and you said "related."
25 So is there any other reason you did this other
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2 than this litigation?
3 A. I'm sure there are other reasons to
4 describe the MPAA in certain ways if people think
5 about it enough and discuss it enough. I don't
6 know. I would imagine it's related to the ongoing
7 hostilities. But again, you know, I can't crawl
8 back into my head and figure out exactly when this
9 was done, who did it, what the thinking was at the
10 time. It's something that I have not thought about
11 at all, and this is the first I've even thought
12 about it in it must be months. So I don't know who
13 posted it, when they posted it, what the exact
14 thinking was when it was posted or, rather, linked.
15 Q. You said numerous times that the reason
16 you kept up the link is it's part of the story.
17 A. Which links are we talking about now?
18 Q. The links to DeCSS. Switching topics.
19 Is that fair?
20 A. Yes.
21 Q. And that you view it as your job as a
22 journalist to basically report that story.
23 MR. GARBUS: I am going to object. I
24 think the practice we have had is that if a
25 second lawyer comes in he is entirely
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2 entitled to go into new areas. What you
3 seem to be doing now is going over areas
4 that Mr. Gold went over. And that we have
5 agreed no one should do.
6 MR. LITVACK: I will not do.
7 Q. Isn't it correct that you and 2600 asked
8 people to post DeCSS so that you could link to it?
9 A. We told people how they could support,
10 how they could show their support for this
11 information, for talking about DeCSS, reverse
12 engineering, encryption technology. All the things
13 that were being restricted we explained how we saw
14 this as a danger and how people could show support
15 if they chose to. We also apprised them of the
16 risks that went with that.
17 Q. And there are a lot of ways you
18 indicated to them they could show support; isn't
19 that right?
20 A. There are many ways, yes.
21 MR. GARBUS: I will object to it.
22 This is exactly what Mr. Gold went over.
23 Q. Now I am asking you specifically, which
24 Mr. Gold did not ask. Didn't you ask people to
25 post it so that you could link to it?
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2 A. Yes, we had a form where people could
3 submit a site. If they wanted their site added to
4 the list, all they had to was fill it out and then
5 send it to us. But that was their choice.
6 MR. GARBUS: Object. This has already
7 been gone over through with Mr. Gold.
8 MR. LITVACK: Let's mark this next
9 document whatever number we're up to.
10 (Plaintiffs' Exhibit 8, 3-page
11 document, 2600: The Hacker Quarterly,
12 entitled "Call to Action," marked for
13 identification, as of this date.)
14 Q. Have you ever seen this? Exhibit 8
15 appears to be a printout from your web site; is
16 that fair?
17 A. Yes. This is one of our web pages.
18 Q. And you have seen this before.
19 A. Yes.
20 Q. By the way, do you do anything to check
21 the veracity of what you post before you put it on?
22 MR. GARBUS: I will object to that.
23 The witness testified to that yesterday at
24 great length. I am going to object to going
25 over the same material again.
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2 Q. Let me ask you this. Did you do
3 anything to check the veracity of this particular
4 page?
5 A. I take responsibility for all pages on
6 our site. Absolutely.
7 Q. I think there was some testimony earlier
8 you weren't sure whether you had written something
9 particular or not. I don't know if you recall
10 whether you yourself had written this page.
11 A. These two paragraphs here? Is that what
12 you're referring to?
13 Q. Those two paragraphs I guess would be
14 it. I am not sure if the summary and the news also
15 would fall within.
16 A. OK. I believe I wrote these two
17 paragraphs. They do sound like my style.
18 Q. Is it your opinion that the "call to
19 action," and that's a quote from the exhibit, is
20 part of telling the story?
21 A. By having people hand out fliers, by
22 having people tell others about what's going on,
23 that's part of it. It's part of getting the word
24 out, yes.
25 Q. And the word you're attempting to get
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2 out via this is what?
3 A. That this -- basically that DeCSS is
4 something that is an interesting story. It has to
5 do with encryption and reverse engineering and
6 technological developments and education.
7 We outlined what we felt was wrong with
8 the case against us and told as many people as we
9 could, as I believe is our right.
10 Q. And you see that as part of reporting
11 the story?
12 A. I see this as part of reporting the
13 story, yes, getting the word out. It might not be
14 a traditional way that the mainstream media does
15 it, but that's how we do it.
16 Q. In your declaration you made the comment
17 "While I don't practice or condone breaking into
18 computer systems, experience has shown us that such
19 acts are an inevitable product of curiosity
20 combined with new technology."
21 A. What item number?
22 MR. GARBUS: Which paragraph?
23 MR. LITVACK: 13. Page 4.
24 A. OK, I'm there.
25 Q. Mr. Gold did ask you about this.
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2 A. Yes.
3 MR. GARBUS: Mr. Gold asked about the
4 entire paragraph; is that right?
5 MR. LITVACK: Correct. So I am not
6 going to repeat his question.
7 Q. Isn't it fair to say that what the 2600
8 quarterly does do is condone breaking into computer
9 systems --
10 A. It does not.
11 Q. Let me finish. -- and tell people how
12 to go about violating the law?
13 A. Absolutely not.
14 MR. GARBUS: Objection.
15 Q. Are there not articles, numerous
16 articles, in your magazine that specifically do
17 that?
18 A. There are articles submitted to us by
19 people that give us information on various
20 operating systems on how things work. But it has
21 always been the editorial stance of our magazine
22 that breaking into computer systems is
23 irresponsible, it's wrong.
24 But what we do is we recognize that it
25 is also something that is happening and we want
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2 people to act responsibly.
3 Q. Don't you tell people how to steal as
4 well in these magazines?
5 A. I don't think we have ever told people
6 how to steal.
7 MR. GARBUS: I will object to it.
8 Unless you show the witness the quote.
9 Q. How about using telephones without
10 paying for them?
11 A. We described how telephones work.
12 Q. And you tell people how to use
13 telephones without paying for them.
14 A. We tell people how the system works and
15 how -- if there are security weaknesses in it, we
16 describe the security weaknesses. That's the
17 nature of information. We describe how it works.
18 We do not say "go out and do this and break the
19 law." We have never said that, and you can trace
20 that back to our first issue in 1984.
21 Q. Do you tell people how to create false
22 legal documents as well?
23 A. False legal documents?
24 Q. Yes.
25 A. Again, we tell people how systems work.
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2 Q. You don't recall specifically telling
3 people how to create false --
4 A. I don't recall ever telling someone how
5 to do that. There might be an article that talks
6 about how a particular system works.
7 Q. How about stealing cellular phone
8 systems? Do you tell people how to do that in the
9 magazine as well?
10 A. Stealing systems?
11 Q. Phone time, on cellular phone times.
12 A. Do we tell people how to steal cellular
13 phone time?
14 Q. Yes.
15 A. Again, we describe how systems work and
16 we will describe how the cellular phone system
17 works. Now, if somebody uses that information in a
18 good way, that's not our concern. If somebody uses
19 that information in a bad way, that's not our
20 concern. We provide the information. That's what
21 we do.
22 Q. Don't you teach people how to make card
23 phones in this magazine, and the only purpose of
24 those is to steal phone time?
25 A. No.
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2 Q. Are you sure?
3 A. Well --
4 Q. Remember, you're under oath here. So
5 we're going to go through these articles?
6 MR. GARBUS: If you have an article to
7 show him, show him the article.
8 MR. LITVACK: He just said no.
9 A. I said no, and I'll continue to say
10 no, because interpretation of the intent of
11 knowledge is -- I don't think any of us have the
12 ability or even the right to say that.
13 Q. Sir, didn't you specifically print an
14 article for example on how to create a false ID
15 about your age?
16 A. Someone may have written an article
17 about how that is done.
18 Q. Doesn't it specifically say in there the
19 purpose of it is so you can drink when you're
20 underage?
21 A. That might be that person's
22 interpretation. That is not our interpretation.
23 Q. Sir, you printed it in your magazine.
24 You said you're responsible for every word in here.
25 A. I'm responsible for what we write as
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2 editorials, as replies to letters, as editorial
3 stances in the magazine.
4 Q. Sir, do you believe that --
5 A. We do not agree with every article that
6 is submitted to our magazine, no. If we did, we
7 would cease being what we are.
8 Q. What are you?
9 A. We're a journal of various bits of
10 information that are sent to us from around the
11 world describing how systems work.
12 Q. And part of that includes creating false
13 IDs so underage people can drink.
14 MR. GARBUS: Objection.
15 A. I would like to see the article you're
16 referring to so I can answer it intelligently.
17 MR. GARBUS: Would you please lower
18 your voice, Mr. Litvack. Stop yelling at
19 the witness
20 Q. Let me read you an article entitled
21 "Spoofing Cellular Service." This is from autumn
22 1996.
23 First, why don't you tell me, what is
24 spoofing cellular service?
25 A. In the context of that article I believe
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2 it's creating a false phone number or a phone
3 number on a different line or -- it can be
4 interpreted in many ways. It can be an extension
5 phone on a cellular system. It can be a fake
6 number. I would have to see the article to know
7 exactly how it's meant in that particular case.
8 Q. You don't remember this article.
9 A. I would have to look at it to remember.
10 I can't remember every word that's written in the
11 magazine. That's an old issue taken from several
12 years ago.
13 Q. Until you read it you can't tell me if
14 the only purpose of this article is to tell
15 somebody how to get cellular service without paying
16 for it.
17 MR. GARBUS: I will object to it.
18 He's already said unless he reads it he
19 can't tell you what is in there. You have
20 asked him that.
21 MR. LITVACK: You will stipulate to
22 that?
23 MR. GARBUS: I will stipulate that he
24 has to read the article before he can answer
25 questions about it.
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2 Q. So you can't answer that without reading
3 it.
4 A. I can't answer accurately without
5 looking at --
6 Q. Fine, here, read the article. Take your
7 time (handing).
8 A. OK.
9 Q. For the record, as your counsel reads
10 it, do you know when these were given to the
11 plaintiffs in this case, these magazines?
12 A. Do I know when they were given?
13 Q. Yes.
14 A. I believe today.
15 Q. Doesn't that article tell you how to get
16 cellular phone service without paying for it?
17 A. It tells you many things. Yes, it
18 describes how that can be done. It also describes
19 social engineering. It describes security
20 weaknesses.
21 I have no doubt after that article
22 appeared that those security holes were fixed. I
23 have gotten many times at conferences executives of
24 companies who walked up to me and said that we
25 provide a valuable service for them. And I have
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2 also been criticized in the hacker community for
3 doing just that, for giving away the secrets. So
4 it's a two-edged sword.
5 Q. So it's your testimony here you were
6 attempting to do a public service for the cellular
7 phone systems?
8 A. No, my testimony --
9 MR. GARBUS: I will object to it.
10 That was not the testimony.
11 A. My testimony is that we print
12 information. People use that information in
13 different ways. It's very simple.
14 Q. Are there legal ways for people to use
15 that system to get phone service without paying for
16 it?
17 A. I wouldn't know.
18 Q. Let me show you the next article, "Tips
19 on Generating Fake ID."
20 "So you want to get drunk this weekend
21 or buy some cigarettes? It is sometimes easier to
22 buy marijuana and take advantage of the black
23 market brought on by the war on drugs or follow on
24 and learn how to kill your brain cells with
25 alcohol."
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2 Was that done as part of a public
3 service message?
4 A. That was an article somebody submitted.
5 As I said, I don't agree with every view expressed.
6 It can be seen as parody. It can be seen as
7 nonsensical humor. But it's also seen as educating
8 people as to how something is done.
9 Q. Parody on how to make a false ID?
10 A. No, parody on the opening paragraph that
11 you just read, as if that's the only thing that a
12 fake ID is good for, going out and getting drunk.
13 I mean, who knows how you would interpret that?
14 Q. Sir, let me show you an article from
15 volume 15, number 2. Maybe you can read the read
16 better than I can.
17 A. It's on the bottom of the page. Well,
18 the next page definitely.
19 Q. Maybe you can just tell me what it's
20 from. Oh, summer of '98 on the bottom there.
21 That tells you how to make a false ID.
22 Is that fair?
23 MR. GARBUS: I will object to it. The
24 article tells you what it tells you.
25 Whether it's fair or not is irrelevant. The
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2 articles says what it says.
3 Q. Mr. Garbus is absolutely right with his
4 objection. Can you read to me the title?
5 A. "Tips on Generating Fake ID."
6 Q. Can you read to me all of the commentary
7 or editorial comment that 2600 added on this?
8 A. We don't necessarily add editorial
9 comments into other people's articles. People
10 submit articles to us. We print the articles and
11 people learn from the articles. They either learn
12 how to secure their systems or they learn how the
13 systems can be abused. They can do good things,
14 they can do bad things. We exist to provide
15 information.
16 Q. What system is it you're teaching people
17 how to hack in this article?
18 A. I didn't say we were teaching people to
19 hack.
20 MR. GARBUS: I will object to it.
21 That wasn't what he said.
22 MR. LITVACK: I don't have to just
23 adopt his answer, Mr. Garbus.
24 MR. GARBUS: Of course you don't have
25 to adopt his answer. But you can't restate
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2 what he said in the wrong way.
3 MR. LITVACK: I get to ask the
4 questions, OK?
5 Q. Are you attempting to teach somebody how
6 to break into a system by that article?
7 A. I have no interest in people getting
8 fake ID. It's a method that is used. It's
9 educational. It's a report on holes that exist in
10 various systems. That's as simple as I can make
11 it.
12 Q. Who made the decision to print that
13 article in that magazine?
14 A. That would be me. As the editor.
15 Q. In the end here there's a thing that
16 says "how to spot fake ID and not be fooled," and
17 it tells me what to say when they are handing over
18 the fake ID. And the purpose of that is what?
19 A. Again, that's method, that's how things
20 work. This is information that would exist even if
21 it was not in our magazine, except it would be less
22 well-known and less people would understand it.
23 Q. So you're trying to explain to more
24 people how one could create a false ID if they want
25 to?
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2 A. We try not to impose our moral judgments
3 on information.
4 Q. You also then tell people how to I guess
5 break into specific companies' computer programs in
6 your magazine?
7 A. I need a specific reference.
8 Q. Have you ever done that?
9 A. There are all kinds of articles in the
10 magazines about all kinds of computer systems.
11 Q. Are you really going to sit here and
12 tell me --
13 MR. GARBUS: I would object to the
14 form of the question as to what he is really
15 going to sit here and tell you. I object to
16 the form of the question.
17 Q. Is it your sworn testimony right now
18 that you do not ever remember publishing an article
19 telling people how to break into a specific
20 company's computer program?
21 MR. GARBUS: I'll object.
22 A. We print articles about computer systems
23 of specific companies and people can learn all
24 kinds of things from that.
25 MR. GARBUS: If you want to show him
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2 an article, show him an article.
3 MR. LITVACK: I don't need to show him
4 an article. He knows that they publish them
5 on specific companies. Every one of these
6 magazines has articles on specific companies
7 pretty much.
8 MR. GARBUS: I object to that.
9 Q. Isn't that fair?
10 A. And those specific companies read the
11 articles.
12 Q. So I don't need to show you any
13 articles.
14 MR. GARBUS: Mr. Litvack, this is a
15 deposition. This is not an argument.
16 MR. LITVACK: You objected, said you
17 need to show him the magazine. He knows he
18 doesn't need the magazine. He knows it's
19 the regular magazine to print these
20 articles.
21 If you have an objection to form, make
22 it.
23 MR GARBUS: I object to the form of
24 the question.
25 MR. LITVACK: Good. There's not even
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2 a question pending.
3 A. If you're looking at a specific article,
4 that's the only reason I was curious which article
5 it was.
6 Q. Routinely, it's things you publish;
7 isn't that fair?
8 A. That's the nature of our magazine, is
9 how systems work.
10 Q. Fine. "Fun at COSCO," do you recall
11 this article?
12 A. I am thinking. Yes.
13 Q. Summer of '99?
14 A. I don't recall specifically what is in
15 it, but I recall the article. Yes.
16 Q. I will show you the article.
17 A. Thank you.
18 OK.
19 Q. What is the "fun at COSCO"?
20 A. It's -- you asked me to analyze the
21 title? It's basically a statement. People -- the
22 title first of all was part of the article. Our
23 writers entitle their own articles. So it is rare
24 that we come up with our own titles.
25 Again, it's basically a way of
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2 describing how these systems work. From this
3 person's point of view, they consider that fun.
4 Q. What's fun? Shopping?
5 A. Learning how the systems work, seeing
6 how the phone systems at that particular store
7 work. And I am trying to see what else is in here.
8 Q. Isn't it using the computer system when
9 you're not authorized to use it?
10 A. Yeah, using is different than reading.
11 Q. Is it?
12 A. We have told people -- if you read our
13 letters and you see our replies to people that are
14 obviously intent on committing criminal acts, you
15 will see that we chastise them and tell them not to
16 do it.
17 Q. You don't do it on --
18 A. Because those are articles. We don't
19 comment on articles.
20 Q. This article even tells you what to say
21 when you get caught.
22 A. Uh-huh.
23 Q. Did you comment on it, like say, Gee,
24 don't do this?
25 A. Well, if COSCO reads that article and
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2 someone says that, I think they will know that they
3 read the article too and they'll be prepared for
4 it.
5 Q. So you sent COSCO a copy?
6 A. We don't send anybody a copy unless they
7 ask for a copy. But usually if your company's name
8 is in there, you get a copy pretty fast. They
9 might even sell us at COSCO.
10 Q. In this article when it described how to
11 use COSCO's system wrongfully and what to say when
12 caught, did you do anything to insure that people
13 didn't use the advice that you were handing out?
14 A. Like I said, we did not --
15 MR. GARBUS: I will object to the form
16 of the question.
17 A. We do not impose our moral values on our
18 articles. The articles are what they are.
19 Q. Even if they encourage illegal acts?
20 MR. GARBUS: I will object to the form
21 of the question.
22 A. I don't believe the article only exists
23 to encourage illegal acts. I think it is an
24 informational article.
25 Q. What is a diverter, a telephone
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2 diverter?
3 A. A diverter is actually a very old piece
4 of phone -- phone equipment that I believe doctors
5 and plumbers and other such people use after hours.
6 I might be wrong on this, but I am pretty sure it
7 is used. So that when somebody calls the office
8 and nobody is there, the call gets forwarded to the
9 person's home. It's kind of a mechanical version
10 of call forwarding. It is rare to find these days
11 because call forwarding is so prevalent in the
12 phone companies.
13 Q. Didn't you print an article on how to
14 use a phone diverter so that the person utilizing
15 it would not have to pay for the phone calls they
16 made and that somebody else would be charged for
17 it?
18 A. Now, that's a very good point actually
19 because -- I think you're going back to an old
20 issue. Phone diverters have become notoriously
21 insecure. The reason for that is that when you
22 call the person's office and the call gets
23 forwarded to the person's home, that's done by
24 picking up the second phone line and making a phone
25 call and basically conferencing you in.
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2 Now, what happens is, and this was
3 discovered by hackers, when the person on the
4 remote end hangs up, the other phone drops to a
5 dial tone, meaning that call diverters are not the
6 way to go.
7 Now, I had the option of buying a call
8 diverter, and it was because of the information
9 that I had from articles like this that I realized
10 I would be crazy to do that, that people could make
11 phone calls off of my line.
12 And I think that's one of the reasons
13 why you don't see very many call diverters these
14 days, because people are aware of the risks. If we
15 had not printed articles like this, I am sure there
16 would be a lot more people being ripped off these
17 days who weren't aware of the risks.
18 Q. "Call diverters are a wonderful tool for
19 you to add to your freaking arsenal." Is that
20 telling people be careful about using them?
21 A. Are those our words?
22 MR. GARBUS: Let me just make an
23 objection.
24 MR. LITVACK: You can have an
25 objection to form of the question.
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2 MR. GARBUS: No, no, no. Just so we
3 can save a little time.
4 If James Bond describes 17 different
5 ways to kill somebody, do you think that
6 James Bond's publisher or author is liable
7 if it's a killing that ultimately occurs
8 that way?
9 MR. LITVACK: Let me ask you this,
10 Mr. Garbus. Do you really in good faith
11 believe that was an objection to form,
12 asking me a hypothetical?
13 MR. GARBUS: Go ahead.
14 Q. "Call diverters are a wonderful tool for
15 you to add to your freaking arsenal."
16 A. I believe I answered that by asking you
17 if that's our writing or if that's the author's
18 writing.
19 Q. I am reading from 2600.
20 A. Right. But is that an article that was
21 submitted to us or is that our writing from the
22 magazine?
23 Q. Do you believe that is a way of warning
24 people about the danger of call diverters?
25 A. If you read the article and you learn
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2 what the article says, yes. Absolutely.
3 Q. So that's the way you warn people, by
4 language such as that.
5 MR. GARBUS: I object to the form.
6 A. That's the way we get the information.
7 Q. I'll quote again. "After you've located
8 a diverter, don't abuse it or the business is sure
9 to pull the plug, leaving you to start all over
10 again."
11 A. Again, that's the person who submitted
12 the article to us and that is the way they decided
13 to write the article. We don't put our moral
14 values over people's articles.
15 Q. Article entitled "Hacking the 3-Hole Pay
16 Phone." Do you remember that article from --
17 A. That's our new issue.
18 Q. Newest issue. So this one should -- in
19 fact, this should be after the lawsuit was filed.
20 A. Yes.
21 Q. Now, hacking the 3-hole pay phone,
22 explaining to you how to put slugs into a phone
23 system, to a pay phone.
24 A. Yes.
25 Q. And the purpose of that was to help the
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2 phone company stop it?
3 A. You've picked a really dandy of an
4 example there. That actually is an article about
5 phones that haven't existed in maybe the last 30
6 years. That's historical perspective there.
7 I think that goes to show that we do not
8 print articles simply to show people how to defraud
9 things. That is an example of how things worked in
10 the past, how thing were abused in the past. I
11 found it fascinating.
12 Q. Do you believe there are no 3-hole pay
13 phones left in America?
14 A. I would sure like to find one. I'd love
15 to see one.
16 Q. Is it your testimony that there are no
17 3-hole pay phones left in America?
18 A. Except on movie sets perhaps.
19 Q. In fact, you guys specialize in phones
20 because you put them on the back of every issue,
21 isn't that right?
22 MR. GARBUS: I object to the form of
23 the question. What do you mean by
24 specialize in phones?
25 A. We put pictures of foreign pay phones
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2 on the back of our magazine. I am sure there are
3 bad ways that information can be used.
4 Q. Do you put domestic as well or only
5 foreign?
6 A. Only foreign. We see enough domestic
7 ones.
8 Q. I'm looking at an article from spring of
9 last year, '99. "Hacking a Sony Play Station."
10 Do you remember that article?
11 A. I remember the article. I've never had
12 a Sony Play Station myself, so I don't really
13 remember what it entails.
14 Q. "If you're one of the" -- I'm reading
15 now. Well, I'm going to give it to you. So that
16 way you can see I'm accurate. Can you read the
17 first paragraph out loud?
18 A. "If you're one of the millions of Play
19 Station, in parentheses, PSX, owners out there,
20 good news. You can, quote unquote, hack your PSX
21 with the addition of a, quote, Mod, M-o-d, or,
22 quote, Pic, P-i-c, chip enabling you to play backed
23 up, ahem, in parentheses, PSX games and more
24 importantly import games and at a fraction of the
25 cost."
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2 Q. Did you read this before you put in the
3 magazine?
4 A. Yes.
5 Q. Did you wonder, did you ask the author
6 what you meant by "ahem"?
7 A. We don't communicate with the authors
8 and analyze every word that they say and ask them
9 to rewrite things. The articles speak for
10 themselves. We print the information that the
11 people send us. There's all kinds of things that
12 can be gained from an article about hacking a Sony
13 Play Station. You can learn the vulnerabilities in
14 the system. We can see what people are doing.
15 We don't usually print articles on
16 something like this. This is widespread without us
17 doing this. We have been criticized for putting
18 this in our magazine because it's really got
19 nothing to do with real computers. These are
20 games.
21 Q. Did you have an understanding as to what
22 they meant by "ahem"?
23 A. Yes, I imagine it was a bit of sarcasm
24 on their part. But I think that's also important
25 to the article so you know the tone of the person
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2 writing it and what it is that they are really up
3 to.
4 Q. Sarcasm on what issue?
5 A. On the issue of defining games that
6 they had copied as backed up games instead of games
7 that they copied from friends.
8 Q. Would that be a pirate copy?
9 A. It might be considered that. I am not
10 really familiar with the Play Station world, if
11 they even consider it that serious a thing. But
12 this is information -- this has been out years
13 before we even touched it. I think it's important
14 for people to see what's being written about it.
15 Q. I am going to show you an article from
16 fall of 1998. Can you read for me the title of the
17 article?
18 A. "Screwing with Movie Phone."
19 Q. What does that article tell you how to
20 do?
21 A. This article actually was interesting
22 because it -- I'm just remembering what it had to
23 say here. This talked about how particular
24 transactions over the telephone could easily be
25 used in a fraudulent manner, in other words, this
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2 involved people behind the counter, like fraud
3 within Movie Phone. Actually, within the theater,
4 where from --
5 Q. Doesn't it tell you you can use Movie
6 Phone if you're under age to buy an R-rated movie
7 ticket and get in?
8 A. It tells of how there's no security
9 whatsoever if you buy a ticket in this way and how
10 people have been turning a blind eye to this for
11 years.
12 Q. Doesn't it also tell you how you can
13 order over Movie Phone, go see the move and then
14 get your money back as if you never saw the movie.
15 A. And this has been going on for years.
16 Q. But it tells you how to do that.
17 A. I would bet that this stopped happening
18 shortly after we printed the article.
19 Q. Did you have an opinion as to whether
20 that was a fair use of your movie ticket or not?
21 A. I don't think my opinion is relevant to
22 the articles that get printed. The articles do not
23 reflect my opinion.
24 Q. Do you read them before they --
25 A. I read them, but the articles I print do
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2 not all agree with what I have to say. The hacker
3 community is not one big monolithic collective
4 mind. We try to print what information is out
5 there that's different, that educates people the
6 most on how things work and how things are
7 vulnerable. And that's what I think we did with
8 this article and with the other ones.
9 Q. Let me show you the next article, ask
10 you if you remember this one. Can you read this?
11 A. "Cable Modem Security."
12 Q. Can you just read the opening sentence?
13 A. "Cable modems are becoming increasingly
14 popular among the Internet connected for a variety
15 of reasons, not the least of which is the
16 availability of a cheap, high-speed, high bandwidth
17 connection on request."
18 Q. Fine, that's it. Did you ever do
19 anything, put anything in your magazine, to
20 indicate you disagree with that statement?
21 A. Like I said, we don't comment on
22 articles, we put our editorial comments on the
23 articles.
24 Q. Did you believe that statement was
25 wrong?
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1 Goldstein
2 A. That cable modems are becoming
3 popular --
4 Q. Correct.
5 A. High bandwidth? Cable modems are
6 obviously becoming popular, yes. I won't disagree
7 with that.
8 Q. Not the least of which is the
9 availability of a cheap, high-speed, high bandwidth
10 connection on request.
11 A. Uh-huh. And that article is also
12 several years old. And we have not really advanced
13 very far beyond cable modems in all that time.
14 Q. Do you know of modems, the speed of
15 cable modems?
16 A. I not familiar with the actual speed.
17 It varies. It depends how many people are in your
18 loop.
19 Q. Do you think they're quicker than 56?
20 A. They're quicker than 56, but how much
21 quicker depends on how many other people share your
22 line.
23 Q. Did you do anything to check the
24 veracity of that particular statement before you
25 published it?
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2 A. Whether or not cable modems are fast?
3 Q. Are becoming increasingly popular among
4 the Internet connected for a variety of reasons,
5 not the least of which is the availability of a
6 cheap, high-speed, high bandwidth connection on
7 request.
8 A. I don't understand why that would be a
9 statement that would need to be verified. It's
10 pretty common knowledge that cable modems are
11 popular because they offer, quote unquote, high
12 speed.
13 But I think it's also important that
14 that's what was said years ago, and we haven't
15 advanced beyond that, not to any significant
16 degree. In fact, cable modems are still faster
17 than DSL in most cases.
18 Q. My only question was did you do anything
19 to check the veracity of that particular statement.
20 A. The answer is no.
21 MR. GARBUS: I will object. He has
22 already answered the question.
23 MR. LITVACK: Why don't we take a
24 break.
25 THE VIDEOGRAPHER: The time is 4:06
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2 p.m. and this completes videotape number 4
3 of the videotape deposition of Mr. Emmanuel
4 Goldstein.
5 (A recess was taken.)
6 THE VIDEOGRAPHER: The time 4:19 p.m.
7 and this begins tape number 5 of the
8 videotape deposition of Mr. Emmanuel
9 Goldstein.
10 BY MR. GOLD:
11 Q. I show you Volume Fourteen, Number Two,
12 which is the summer of 1997.
13 MR. GARBUS: Let's mark it as an
14 exhibit so we can keep better charge of it.
15 Why don't you just identify the books you
16 have had so we can mark them as exhibits.
17 In other words, I previously referred to
18 so-and-so.
19 MR. LITVACK: OK, we'll do it at end.
20 This is going to be a very quick question.
21 (Discussion off the record.)
22 THE WITNESS: What page do you want me
23 to look at?
24 Q. I believe you testified earlier that all
25 of the phones were not in the United States.
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2 A. No.
3 Q. Does that refresh your recollection that
4 there are phones as well in the United States?
5 A. Yes, you did find one phone I forgot
6 about. Actually, if you look, there is no real
7 phone in the phone booth. It has just got paper
8 cups and things. But yes, something from Florida.
9 From Disney World, I think. Sorry, I stand
10 corrected.
11 Q. It says from Panama City. I assume --
12 A. Which I think is in Florida, right?
13 Q. Right. Disney World I believe is in
14 Orlando.
15 A. Never actually been there.
16 Q. Leaving the 2600 magazines aside --
17 although there's one more article I wanted to ask
18 you about. Do you know what a DOS is?
19 A. DOS as denial of service or a DOS
20 operating system?
21 Q. As in denial of service.
22 A. Denial of service, yes. There's been a
23 lot of publicity about that lately.
24 Q. Have you written articles? Have there
25 been articles in here on how to do DOS?
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2 A. There have been articles about how such
3 an attack would be structured, yes.
4 Q. Have you ever participated in such an
5 act?
6 A. No.
7 Q. Do you know anyone who has?
8 A. No, I don't.
9 Q. Is the reason you put an article in here
10 on how to do a DOS attack to try to help people
11 stop DOS attacks?
12 A. Absolutely.
13 MR. GARBUS: Objection.
14 MR. LITVACK: Your objection is?
15 MR. GARBUS: You're testifying. You
16 should be asking him questions. Go ahead.
17 MR. LITVACK: I thought I had the
18 right to lead him, but OK.
19 A. It absolutely can help somebody to have
20 the denial of service laid out in front of you so
21 you know exactly what is involved and you know how
22 it's comprised, what the weaknesses are that would
23 allow something like that to happen.
24 We have no interest in bringing the Net
25 down to a crawl, but it's something that I think
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2 people should be aware of, absolutely. There's a
3 lot of ignorance floating around out there now.
4 That's because not enough information is out there.
5 Q. The term "hacker" has been used. You
6 used that term.
7 A. Right.
8 Q. It means something to you.
9 A. Uh-huh.
10 Q. In fact, you've written about what the
11 term means.
12 A. Uh-huh.
13 Q. That's a yes.
14 A. Yes.
15 Q. If you say "uh-huh," it really makes his
16 very hard job impossible.
17 And you have used the term "cracker."
18 A. I have addressed the term "cracker." I
19 don't use that term myself. It's a misuse of what
20 I believe that term is.
21 Q. Can you explain the difference?
22 A. Well, I don't see cracker as a valid
23 definition at all. I think that's simply a way of
24 defining hacking in a bad way without explaining
25 why it's bad. So basically you have someone
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2 defined as a cracker, you don't need to know any
3 more about them. You just know that they're bad.
4 But you don't know what it is they did.
5 I prefer to think of it as you have
6 hacking and then you have criminal activity which
7 can be defined by the crime. So I don't think
8 there's any need for another word. But again,
9 that's my opinion. A lot of people don't share it.
10 Q. There was talk earlier about, I believe
11 about Jon Johansen and you have written about Jon
12 Johansen, correct?
13 A. On the web site I believe we have
14 written about Jon Johansen.
15 Q. Have you ever spoken to Jon Johansen?
16 A. I have never in person, no.
17 Q. Have you talked to him about this case?
18 A. There may have been like -- I might have
19 seen him in IRC once or someone who claimed to be
20 him. Nothing in detail.
21 Q. Have you E-mailed him?
22 A. I think we might have exchanged one or
23 two E-mails just to say hello.
24 Q. You just wrote back two E-mails, hello,
25 hello?
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2 A. Well, no. This is simply -- I am not
3 sure how the conversation would gotten started, if
4 it was even much of a conversation. After all, he
5 is from Norway. And I am not sure how good his
6 English is.
7 I think at one point there might have
8 been a mailing list that he and I were both on, and
9 I might have seen his name pop up and said hello to
10 him, or something like that. Since we were both in
11 the news, we might have just passed pleasantries.
12 But there was no discussion of any real details. I
13 don't really know that many of his details. All I
14 know is what happened to him. What was in the
15 newspapers, I haven't talked at length with him or
16 really anyone about that.
17 Q. Is it fair to say that you talked to
18 him, you had this E-mail exchange after November
19 1999?
20 A. It was after November, yes.
21 Q. Was it after January?
22 A. It was after the action against us. It
23 was either in January, late January or shortly
24 thereafter. I think it was around the time of the
25 Linux Expo actually. That might have been it.
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2 Q. Did he tell you anything about Linux?
3 A. Did he tell me anything about Linux?
4 Q. Yes.
5 A. No.
6 Q. Do you or does 2600 know who created
7 DeCSS?
8 A. As far as I know, that is something that
9 has never been definitively said one way or
10 another. I didn't ask him if he was the person
11 behind it.
12 Q. Do you or 2600 know or have an opinion
13 as to who created DeCSS?
14 A. No. I really have no knowledge about
15 that at all.
16 Q. You said I think you used Napster once.
17 A. Once or maybe twice.
18 Q. Do you know what song you downloaded?
19 A. Most recently I remember it was an
20 article in Time magazine about some band that
21 everybody was going crazy over, and I wanted to
22 hear what they sounded like. So I found one of
23 their songs and listened to it and that was it.
24 Just to see what they sounded like.
25 I forget the name of the band. It was
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2 some big article about their unique sound, the
3 unique sound of this band, and that's the only time
4 I remember.
5 I remember I looked at the program to
6 see how the program worked, and that was probably
7 the first time I used it. But I don't think I
8 actually listened to a song then. I looked at
9 lists. I remember looking at lists, but I don't
10 think I actually listened to a song.
11 Q. To download though you stored a copy of
12 it on your hard drive.
13 A. Yes, an MP3 had to be downloaded.
14 Q. When you say downloaded, is it fair to
15 say you stored a copy to your hard drive?
16 A. For that, yes, it would be fair to say.
17 Q. I don't know another way to do it.
18 Maybe you do. That's what I'm asking.
19 A. Well, there's streaming. Streaming is
20 live playing over the bandwidth you have. And then
21 I don't -- my understanding of Napster is that it
22 copies it over to your system and then you listen
23 to it from your system. That's my understanding.
24 I haven't really looked into it that deeply.
25 Q. That's my understanding. I am just
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2 trying to see if that's how you did it.
3 A. Right.
4 Q. Do you know where the hard drive that
5 you -- is it still on your hard disk?
6 A. No, I don't think so. I didn't like the
7 song. In fact, I only listened to a couple of
8 seconds of it.
9 Q. Did you pay for that copy?
10 A. There is no way to pay for an MP3
11 downloaded in that manner.
12 Q. Did you ever ask the copyright owner
13 whether --
14 MR. GARBUS: I will object to the form
15 of the question. I don't see what it has to
16 do with this lawsuit.
17 MR. LITVACK: Let me finish my
18 question. I don't mean to cut off your
19 objection. Just I thought it should be at
20 the end of the question.
21 MR. GARBUS: I'm sorry, I thought you
22 had finished. Go ahead.
23 Q. Did you ever seek the authorization from
24 the copyright owner to make that copy?
25 THE WITNESS: Are you going to object
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2 now or do I answer?
3 Q. That was the end.
4 MR. GARBUS: I object to the question.
5 Answer it.
6 A. No. I did not.
7 Q. The way your web site operates, I take
8 it that unless you are enjoined, the linking, the
9 hyperlinks, the DeCSS, will just be up there as
10 long as your web site is up; is that fair?
11 A. Yes, that's a fair statement.
12 Q. Was it your intention that if your
13 motion to lift the injunction against you and your
14 web site was granted that you would post DeCSS?
15 MR. GARBUS: I will object to the
16 question. Speculative.
17 A. My understanding of legal issues, I
18 would assume that it would be back on our site if
19 we were allowed to put it on our site, yes.
20 Q. That would be your intention.
21 A. Yes.
22 Q. In your declaration, you criticize the
23 MPAA for sending cease and desist letters.
24 Paragraph 22.
25 "The letters ... are misleading and
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2 intimidating, since they suggest that the recipient
3 'may' be subject to an injunction even though
4 Plaintiffs know very well that the recipient is
5 not."
6 Do you see that?
7 A. Yes.
8 Q. You didn't discuss with any of the
9 plaintiffs what they know, did you?
10 A. What they know? No, I didn't.
11 Q. Well, you're saying -- you could read
12 that I think fairly to say that you're testifying
13 to what the plaintiffs know.
14 MR. GARBUS: I object to the question.
15 Q. One way you may know that is having
16 discussed it with some of them. All I am asking is
17 did you discuss it with any of them.
18 MR. LITVACK: And I cannot believe
19 that's an objectionable question.
20 MR. GARBUS: Go ahead.
21 A. There are lots of other web sites that
22 have information out there. It's discussed among
23 people in many different forums, and this is one of
24 the things I came to knowledge.
25 Q. So your basis for that statement is not
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2 discussions with the plaintiffs?
3 A. No. Well, they are not plaintiffs. You
4 mean defendants, right?
5 Q. No, you said plaintiffs. "Plaintiffs
6 know very well that the recipient is not."
7 A. Oh, I see what you're saying. No, I did
8 not discuss it with plaintiffs.
9 Q. Is part of your statement discussions
10 with your counsel?
11 A. I believe we have talked about this.
12 Q. What did your plaintiffs tell you that
13 you adopted into that statement?
14 A. Plaintiffs?
15 Q. What did your attorneys tell you that
16 you adopted into that statement?
17 MR. GARBUS: I object to the question.
18 MR. LITVACK: On the basis of?
19 MR. GARBUS: It's attorney-client.
20 MR. LITVACK: He said it forms the
21 basis of what he put into this statement.
22 MR. GARBUS: It's still
23 attorney-client.
24 MR. LITVACK: I would urge that you
25 waived it when you built it into that
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2 declaration. Are you going to instruct him
3 not to answer?
4 MR. GARBUS: Yes.
5 MR. LITVACK: Just so it is clear, our
6 position is that because he used it as part
7 of the foundation for that statement, you've
8 waived it.
9 MR GARBUS: OK, I will let him answer
10 the question.
11 THE WITNESS: Ask the question one
12 more time just so it's fresh in my mind.
13 MR. GARBUS: The understanding is that
14 it is not a waiver of the attorney-client
15 privilege, but with respect to this question
16 we'll permit him to finish the deposition.
17 Q. What did your attorneys tell you in
18 regards to these letters?
19 A. My recollection is that while we may
20 have discussed it with my attorneys, I remember
21 this was an issue that came up on the Net
22 beforehand, that basically letters were being sent
23 out. In fact, I believe this was posted on
24 cryptome.org as well, that other site, and other
25 sites, I am not certain as to which exact ones they
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2 were. That other letters had been delivered, and
3 the way they were phrased was widely interpreted to
4 mean that although we have no jurisdiction over
5 you, you have to do what this letter says even
6 though it seemed apparent that they didn't have any
7 jurisdiction.
8 So to us, we saw that as kind of
9 posturing, as kind of a threat, that didn't have
10 any real basis. So I think most of it was based on
11 discussions with other people on the Net. I know I
12 talked about it in passing with my attorneys, but I
13 don't think it was the basis for that statement.
14 Q. All I am asking you is what did they
15 say.
16 A. What did who say?
17 Q. Your attorneys.
18 A. With regards to this?
19 Q. Yes.
20 A. To be honest, I don't think they said
21 anything about the plaintiffs. I don't remember
22 them saying anything about the plaintiffs. I know
23 it was something that was touched upon very
24 briefly, but I don't think it was anything
25 significant. I don't remember the details.
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2 MR. LITVACK: Done. Your witness.
3 MR. GOLD: Mr. Garbus, there are some
4 things you had promised for today. One of
5 them was an answer to whether we could have
6 our computer expert examine defendant's
7 computer and see what we can retrieve
8 relevant --
9 MR. GARBUS: I would object to that.
10 I have had a conversation with the
11 defendant. I think the deposition is over
12 now. And my understanding of what's on that
13 computer that you want is, first off, if
14 that were done, it would cause his operation
15 to stop 2600.com, and the rest of his
16 operation could not go if the hard drives
17 were removed.
18 And secondly, as I understand it, the
19 hard drives contain a great deal of personal
20 information that does not just belong to
21 2600.com, or Emmanuel Goldstein, but also
22 has information from other people.
23 MR. GOLD: So we're not interested in
24 taking the hard drives. We're interested in
25 looking at them to see if we can retrieve
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1 Goldstein
2 messages relating to this lawsuit and DVD
3 and DeCSS.
4 MR. GARBUS: I understand. I would
5 oppose it and we can go to the court for a
6 ruling on that. Based on my understanding
7 of what's on the hard drives.
8 MR. GOLD: Do you know that there's
9 nothing on the hard drives that relate to
10 DeCSS or this case?
11 MR. GARBUS: No, I have never seen the
12 hard disks. What I do know is that I spoke
13 to my client and he tells me that these hard
14 disks contain information from people other
15 than he, contain private correspondence
16 between people unrelated to 2600.com or
17 Emmanuel Goldstein.
18 And that therefore, it would be, as he
19 understands it, a violation of their privacy
20 to turn over those hard drives.
21 Secondly, as I said before, any
22 interference with the hard disks would cause
23 a disruption. So I suspect we can get a
24 ruling before the judge on that and we would
25 oppose.
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1 Goldstein
2 MR. GOLD: Your position is you can
3 keep from us irrelevant communications that
4 we would be entitled to receive, but we
5 can't because they are in his hard disk and
6 we're not supposed to touch that. That's
7 what I am understanding.
8 MR. GARBUS: I don't think you're
9 characterizing it correctly. I do remind
10 you that we have asked for Mr. Schulman's
11 hard drive with respect to DeCSS tests that
12 he conducted and I don't want to get into
13 that.
14 I am saying that with respect to these
15 hard disks, I think that's an issue which we
16 should discuss with the court. There may be
17 some way of doing it. I don't know of a way
18 of doing it. It may be that the judge could
19 appoint an impartial person and I don't know
20 that that's appropriate or something we
21 would want to do to determine what can or
22 can't be found on these hard drives.
23 I don't know how you do it, but I
24 don't have a sufficient knowledge of
25 technology to know how you can do this
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1 Goldstein
2 without invading the privacy of other
3 people's correspondence. According to what
4 I have been told, not by Mr. Goldstein so
5 much, but by other people familiar with
6 these hard drives --
7 MR. GOLD: Are you willing to identify
8 at least once today, we'll get the
9 identification of someone who passes all
10 this information on to people, but would
11 remain totally secret? Which expert? Which
12 expert did you talk to?
13 MR. GARBUS: No, I am not going to get
14 into that. What I am telling you is that we
15 are prepared to deal with any application
16 you make before Judge Kaplan concerning
17 these hard drives.
18 MR. GOLD: I'm impressed. Did you now
19 turn over to us all of the documents that
20 Mr. Goldstein turned over to you?
21 MR. GARBUS: My understanding is that
22 we have. I had understood that --
23 MR. GOLD: Is there a way to get a yes
24 or no to that even if not here?
25 MR. GARBUS: We have turned over to
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1 Goldstein
2 you all of the documents we had. There are
3 other documents that we had asked be sent to
4 us. We had understood they were to be
5 FedEx'd to us this morning from Long Island.
6 We haven't received them.
7 MR. GOLD: Which are they?
8 MR. GARBUS: I think they are
9 additional copies of --
10 THE WITNESS: Earlier, they're really
11 issues.
12 MR. GARBUS: -- earlier issues of The
13 Hacker Quarterly. As soon as we get those
14 we'll of course give them to you.
15 MR. GOLD: We cannot consider this
16 deposition closed until we see the documents
17 that we should have gotten a couple of weeks
18 ago.
19 One other thing I wanted to take up
20 with you, I don't know if you have ever seen
21 our notice to admit.
22 MR. GARBUS: I have not.
23 MR. GOLD: It's past due, your
24 response to it is well past due.
25 MR. GARBUS: I have not seen it.
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1 Goldstein
2 MR. GOLD: I would prefer not moving
3 before the court, and if you could tell me
4 tomorrow when we're going to get response to
5 our notice to commit, then I won't have to
6 go to the judge.
7 MR. GARBUS: I will speak to
8 Mr. Hernstadt. I presume he has that.
9 MR. GOLD: We have already sent him a
10 letter today --
11 MR. GARBUS: OK.
12 MR. GOLD: -- saying the same thing,
13 but I wanted you to know all of the things
14 that we feel that needed your light on.
15 MR. GARBUS: I appreciate the
16 courtesy.
17 MR. LITVACK: The only documents
18 produced are the tax returns and these
19 magazines.
20 MR. GARBUS: No. We had also, as I
21 told you yesterday, we had given you as part
22 of the motion on the injunction and the
23 linking, we had then taken the files that we
24 had and we attached it to the Goldstein
25 affidavit.
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1 Goldstein
2 So you had yesterday and Mr. Gold had
3 yesterday a pack of documents which Mr. Gold
4 asked me to have the client look at
5 overnight, which he did, which are these
6 pieces of paper. So what I said yesterday
7 is we could again give you these documents
8 as the documents we have. But we had given
9 them to you already. And that's roughly 200
10 pages of something. I don't know if it's
11 200 pages or not, but that's what it looks
12 like to me.
13 MR. LITVACK: I did not see them. I
14 would suggest that Mr. Goldstein knows how
15 to print stuff from his hard disk as well as
16 just about anyone.
17 MR. GOLD: Actually, he testified. He
18 denied that. He said he didn't think it
19 could be done. He's tried to do it.
20 MR. GARBUS: To do what?
21 MR. GOLD: And he can't do it. That
22 was his testimony.
23 MR. GARBUS: To do what?
24 MR. LITVACK: Then I stand corrected.
25 MR. GARBUS: I think that also, as I
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1 Goldstein
2 said to you yesterday, that anything that
3 Mr. Goldstein has access to as I understand
4 it can be downloaded from the Web. And what
5 I ask and what I would try and see whether I
6 can get done, and I raise that question
7 today, is whether there's some way, and you
8 had some of those documents yesterday, that
9 includes some of this, is whether through
10 any kind of electronic system we can give
11 you more documents that we have if we
12 haven't given you those and I am waiting for
13 a responsive answer to know that.
14 MR. GOLD: Well, I think we are
15 finished for the day, but Mr. Goldstein, we
16 are not yet finished with your deposition
17 until we get our documents.
18 MR. GARBUS: OK.
19 (Continued on the next page.)
20
21
22
23
24
25
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1 Goldstein
2 THE VIDEOGRAPHER: The time is 4:44
3 p.m. and this videotape deposition of
4 Mr. Emmanuel Goldstein will be adjourned
5 until a time and place to be agreed among
6 all parties and counsel, and this completes
7 tape number 5.
8 (Time noted: 4:44 p.m.)
9
10 ____________________
11 EMMANUEL GOLDSTEIN
12
13 Subscribed and sworn to before me
14 this ___ day of __________, 2000.
15
16 _________________________________
17
18
19
20
21
22
23
24
25
375
1
2 C E R T I F I C A T E
3 STATE OF NEW YORK )
4 : ss.
5 COUNTY OF SUFFOLK )
6
7 I, THOMAS R. NICHOLS, a Notary Public
8 within and for the State of New York, do
9 hereby certify:
10 That EMMANUEL GOLDSTEIN, the witness
11 whose deposition is hereinbefore set forth,
12 was previously duly sworn and that such
13 deposition is a true record of the testimony
14 given by the witness.
15 I further certify that I am not
16 related to any of the parties to this action
17 by blood or marriage, and that I am in no
18 way interested in the outcome of this
19 matter.
20 IN WITNESS WHEREOF, I have hereunto
21 set my hand this 29th day of June, 2000.
22
23 ____________________
24 THOMAS R. NICHOLS
25
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4 ------------------- I N D E X -------------------
5 WITNESS EXAMINATION BY PAGE
6 EMMANUEL GOLDSTEIN MR. GOLD 168
7 MR. LITVACK 305
8
9 ------------- INFORMATION REQUESTS --------------
10 DIRECTIONS: NONE
11 RULINGS: NONE
12 TO BE FURNISHED: 177
13 REQUESTS: 171
14 MOTIONS: 180, 193, 198, 214, 225, 273, 296, 245
15
16 -------------------- EXHIBITS -------------------
17 PLAINTIFFS' FOR ID.
18 6 Series of documents on 240
web sites and web listings
19
7 2-page document, 2600 News Archives, 292
20 December 1999
21 8 3-page document, 2600: The Hacker 321
Quarterly, entitled "Call to Action
22
23
24
25