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)
1 VOLUME: I PAGES: 1-95 EXHIBITS: 1-5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Case No. 00 CIV 277 (LAK)(RLE) UNIVERSAL CITY STUDIOS, INC.; ) PARAMOUNT PICTURES CORPORATION; ) METRO-GOLDWYN-MAYER STUDIOS, ) INC.; TRISTAN PICTURES, INC.; ) COLUMBIA PICTURES INDUSTRIES, ) INC.; TIME WARNER ENTERTAINMENT ) CO., L.P.; DISNEY ENTERPRISES, ) INC.; AND TWENTIETH CENTURY FOX ) FILM CORPORATION, ) Plaintiffs, ) ) VS. ) ) SHAWN C. REIMEREDES; ERIC CORLEY ) A/K/A "EMMANUEL GOLDSTEIN"; ) ROMAN KAZAN AND 2600 ENTERPRISES,) INC. ) Defendants. ) DEPOSITION OF HAROLD ABELSON, a witness called on behalf of the Plaintiffs, taken pursuant to the provisions of the Federal Rules of Civil Procedure, before Loretta Hennessey, Registered Merit Reporter and Notary Public in and for the Commonwealth of Massachusetts, at the offices of Choate, Hall & Stewart, 53 State Street, Boston, Massachusetts, on Monday, July 5, 2000, commencing at 10:49 a.m. 2 1 APPEARANCES: 2 PROSKAUER ROSE LLP 3 (By William M. Hart, Esq.) 1585 Broadway 4 New York, New York 10036 for the Plaintiffs. 5 6 FRANKFURT GARBUS KLEIN & SELZ, P.C. 7 (By Martin Garbus, Esq.) 488 Madison Avenue 8 New York, New York 10022 for the Defendants. 9 10 ____________ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3 1 I N D E X 2 Witness Direct Cross Redirect Recross 3 HAROLD ABELSON 4 (By Mr. Hart) 4 82 (By Mr. Garbus) 44 -- 5 6 7 E X H I B I T S 8 Exhibit No. Page 9 1 Vita of Harold Abelson. 6 10 2 Notice of Deposition. 10 11 3 Subpoena. 11 12 4 Declaration of Harold 13 Abelson. 17 14 5 Declaration of Michael Shamos. 61 15 16 17 _______________ 18 19 20 21 22 23 24 4 1 P R O C E E D I N G S 2 HAROLD ABELSON, Sworn 3 a witness called on behalf of the Plaintiffs, 4 having been duly sworn, was examined and 5 testified as follows: 6 DIRECT EXAMINATION 7 BY MR. HART: 8 Q. How shall I address you? Doctor? Professor? 9 A. How about Hal. 10 Q. Thank you. 11 Have you ever been deposed before? 12 A. No. 13 Q. Do you have an up-to-date curriculum vitae that 14 you could provide to me? 15 A. Yeah. 16 (Document exhibited to counsel.) 17 Q. Thank you. 18 Are you currently employed? 19 A. Yes. 20 Q. What do you do? 21 A. I teach at MIT. 22 Q. What do you teach? 23 A. Computer science. 24 Q. Is that a full-time job? 5 1 A. Yes. 2 Q. Do you also consult or do anything else in 3 addition to teaching full time? 4 A. Yes, I consult. I do most of my consulting right 5 now for Hewlett Packard. 6 Q. In what areas or area? 7 A. I work on Internet technology and some of their 8 electronic publishing. 9 Q. When you say "Internet technology," could you 10 briefly describe what that means? 11 A. It has to do with how to make an infrastructure 12 that lets people mount services on the Internet; 13 also some more specific technology to make very 14 efficient Internet servers. 15 Q. And what particular areas of experience, 16 knowledge or expertise do you contribute to the 17 area that you just described? 18 A. For MIT or for -- 19 Q. No, I'm sorry, in your consulting capacities. 20 A. In my consulting? I was part of organizing 21 Hewlett Packard's Internet Technology Division, 22 part of their general management of what kinds of 23 projects they'll pick, what kinds of, what kinds 24 of services they'd like to develop, and general 6 1 kinds of discussions about what kinds of research 2 Hewlett Packard Laboratories ought to be doing. 3 Q. Let me just get this straight. I'm trying to 4 clarify this, so I apologize if I get it wrong. 5 Is your consulting at Hewlett Packard 6 Hewlett Packard to enable Hewlett Packard to put 7 up material on a web site to promote what Hewlett 8 Packard does, or is it to enable Hewlett Packard 9 to offer technology and/or services to others in 10 connection with the delivery of content onto the 11 web? 12 A. Mostly the second. 13 MR. HART: Let's mark this, if you 14 don't mind, Exhibit 1. 15 (Document marked as Exhibit 1 16 for identification.) 17 Q. Again, I apologize in advance if I misstate it, 18 but in connection with the consulting activities 19 you do for Hewlett Packard, does that involve the 20 delivery of content via the Internet? 21 A. It involves making the infrastructure that would 22 let other people do it. 23 Q. Okay. And by "infrastructure," what are we 24 referring to? 7 1 A. We're referring to, first of all, the hardware 2 infrastructure, the network infrastructure, 3 indexing, directory searching, tracking, content 4 protection in some cases. 5 Q. And when you say "content protection," what do 6 you mean? 7 A. Things like authentication, making sure that only 8 people who are authorized to get at various web 9 sites can do it. 10 Q. What about encryption as a form of protection? 11 A. Some encryption. 12 Q. Is part of the goal generally in the area of 13 content delivery on the Internet to increase the 14 speed at which large files can be delivered? 15 A. Repeat that. 16 MR. HART: Let me have her read it 17 back. She may get it more correctly than I do if 18 I have to restate it. 19 (Question read.) 20 A. Oh, I'm sorry. Yes. 21 Q. And is it fair to say that that's done through a 22 combination of compression technology and broader 23 bandwidth on the Internet? 24 A. Yes, compression technology, broader bandwidth, 8 1 different ways of arranging switching, sometimes 2 storing files in multiple locations. There's all 3 sorts of things. 4 Q. From your vantage point, could you describe how 5 you see the pace of developments in those areas? 6 MR. GARBUS: I'd object unless you 7 feel -- 8 THE WITNESS: Excuse me? 9 MR. GARBUS: I'd object unless you 10 feel that's an area of your expertise; if it is, 11 then so state. 12 MR. HART: You've got to keep your 13 voice up, Marty, because I don't know if the 14 court reporter can hear you, I know I can't. It 15 may just be that I'm deaf. 16 A. I couldn't characterize how fast it's getting 17 faster, but it's improving, mostly through 18 different kinds of network technologies. 19 Q. By "network technologies," can you just generally 20 describe what you mean? 21 A. Mostly increased use of optical networking and 22 advanced kind of switching, but I'm not an expert 23 enough to characterize that in any detail. 24 Q. Expert in network design? 9 1 A. Network design. 2 Q. Do you ever use DeCSS? 3 A. No. 4 Q. Do you know what it is? 5 A. Yes, I know. 6 Q. Can you give us a plain English description of 7 what it is? 8 A. My understanding is that it's an algorithm that 9 encrypts the Content Scrambling System that was, 10 that's used on videos. 11 Q. When you say "an algorithm," just for us 12 nonengineering types in the audience, you're 13 referring to a formula? 14 A. A formula, a recipe, what you build a computer 15 program to make. 16 Q. And are you aware whether a computer program 17 embodying DeCSS algorithm, formula, recipe has in 18 fact been constructed? 19 A. I'm told it has. I've never looked at one 20 myself. 21 Q. Do you regard there being a difference between an 22 algorithm and an executable utility? 23 A. A difference? 24 Q. Yes. 10 1 A. A difference for what purpose? Certainly things 2 are the same and things are different. 3 Q. Okay. Could you explain the differences between 4 an algorithm and an executive utility embodying 5 that algorithm? 6 A. An algorithm is generally described at different 7 levels of abstraction than computer utility. 8 Some algorithms you can translate quite directly 9 and automatically into computer utilities. Some 10 algorithms are best expressed as computer code in 11 the first place. And sometimes an actual program 12 will have other details that are different from 13 the algorithm itself. 14 Q. Have you examined the DeCSS algorithm? 15 A. No. 16 Q. Have you ever examined any form of executable 17 utility called DeCSS or embodying DeCSS? 18 A. No. 19 MR. HART: I'm going to mark a couple 20 of things here. Ms. Reporter, if you would, 21 that's No. 2. 22 (Document marked as Exhibit 2 23 for identification.) 24 MR. HART: That will be No. 3. 11 1 (Document marked as Exhibit 3 2 for identification.) 3 MR. HART: We're on the record for 4 just one moment. 5 Q. And I'm reluctant to call you Hal, although you 6 seem like a very nice man, and I'm not 7 necessarily a formal person, but I'm going to 8 show you what's just been marked by the reporter 9 as Exhibits 2 and 3. And my question to you, 10 after you've looked at them -- you can take a 11 moment to look through each of the pages if you 12 like -- my question is: Have you ever seen any 13 of those documents before? And in answering, 14 please indicate which document by exhibit number. 15 (Documents exhibited to witness.) 16 Q. It may help if I give you the ones that have been 17 marked by the reporter because they have the 18 exhibit numbers on them. 19 (Documents exhibited to witness.) 20 A. Okay. 21 Q. Have you seen either Exhibits 2 or 3 before? 22 A. I've seen 3 before. 3 is the subpoena I was 23 served with. 2 looks like it's the same, but I 24 haven't seen it before. 12 1 Q. Fair enough. You can actually hand those back. 2 (Documents exhibited to counsel.) 3 Q. Did you collect any documents to bring with you 4 here today? 5 A. No. 6 Q. Were you aware that the subpoena called for you 7 to produce certain documents as listed on the 8 Schedule A to the subpoena? 9 A. Yes. There was nothing relevant. 10 Q. I'm sorry? 11 A. I didn't see anything relevant in the subpoena. 12 Q. What do you mean by that? 13 A. It asked if I had written things about DeCSS or 14 articles about things. I don't have any. 15 Q. Is it your testimony that you had nothing in your 16 possession or control that responded to any of 17 the areas in the Schedule A of the subpoena, 18 Exhibit 3? 19 A. Yes, that's my testimony. 20 Q. Okay. It's difficult when you use lawyer terms 21 like "relevant." I have to find out what you 22 mean. 23 A. Sorry. 24 Q. How did you first get involved in this case? 13 1 A. I believe either Marty or Ed Hernstadt phoned me 2 and asked if they could use a copy of the 3 deposition I made in another case. 4 Q. Okay. You were deposed in another case? 5 A. I'm sorry, declaration. I'm sorry. 6 Q. And what other case are you referring to? 7 A. This is Bernstein versus U.S. 8 Q. And what was the gist of your testimony in 9 Bernstein versus U.S.? 10 A. It's the same as the declaration I've submitted 11 in this case: It said that computer code is 12 expressive, and people use computer code as a 13 means of expression. 14 Actually, I have it. 15 Q. I'm sorry, just because the record is blind, it 16 didn't see you reaching into your bag and pull 17 out a document. 18 A. I'm pulling out a copy of the declaration I made. 19 Q. You now have in front of you a copy of the 20 declaration that you filed in this case? 21 A. In this case. 22 Q. I prefer you put that to the side right now, if 23 you don't mind. 24 A. Okay. (Witness complies.) 14 1 Q. We're going to go through that in a few minutes. 2 Thank you. 3 Did you have any awareness of this 4 case prior to the time that you were contacted by 5 Mr. Garbus or Mr. Hernstadt? 6 A. Only a minor awareness that it was going on, but 7 I didn't know any of the details of it. 8 Q. What did you know before you heard from Mr. 9 Garbus and Mr. Hernstadt? 10 A. Let's see if I can remember. 11 Well, I knew that some sort of 12 complaint had been filed having to do with DeCSS, 13 but I didn't know the details of it. 14 Q. And were you informed in that first discussion, 15 whether it was a discussion with Mr. Garbus or 16 Mr. Hernstadt, were you informed more about the 17 case at that time during that discussion? 18 A. Only a little bit. What I was told is my 19 declaration in the Bernstein case was relevant to 20 this, could they use it. 21 Q. Did Mr. Garbus or Mr. Hernstadt describe to you 22 their view of the case? 23 A. No, not at that time. 24 Q. Did there come a time when they did? 15 1 A. I asked Marty about it this morning as we were 2 waiting. We haven't discussed things much other 3 than that. 4 Q. Apart from the first call that you got either 5 from Mr. Garbus or Mr. Hernstadt to ask you to 6 put in a declaration in this case, and your 7 meeting here today with Mr. Garbus, how many 8 other contacts or communications have you had 9 with anyone at the defendants' law firm? And by 10 that I mean Mr. Garbus or Mr. Hernstadt or any of 11 their associates or colleagues. 12 A. Perhaps four. 13 Q. I'm sorry? 14 A. Perhaps four. Only with Mr. Garbus and Mr. 15 Hernstadt, mostly having to do with scheduling 16 this deposition. 17 Q. Okay. Were there any discussions concerning the 18 substance of the case? 19 A. We talked a little bit about computer code as 20 means of expression. We talked a little bit this 21 morning about general issues of copyright, but 22 nothing in depth. 23 Q. Have you followed the legislative progress and 24 enactment of the Digital Millennium Copyright 16 1 Act? 2 A. Yes, I have. 3 Q. Have you ever submitted any papers, views, 4 testimony or the like in connection with the 5 legislation, its enactment or any rule making 6 related to that law? 7 A. Nothing formal. On the other hand, I am a 8 constituent of Barney Frank's and I had 9 correspondence with him when he was on the 10 Judiciary Committee when that law was before the 11 Judiciary Committee. 12 Q. And this correspondence included your views about 13 the proposed enactment? 14 A. Yes, it did. 15 Q. You say your full-time job is teaching about 16 computers and computer programs at MIT? 17 A. Teaching and research. 18 Q. Can you generally describe for us what specific 19 areas within computers and computer programming 20 you teach or research in? 21 A. I do research in artificial intelligence and in 22 general to the interaction between the artificial 23 intelligence and computing for scientific and 24 engineering uses. 17 1 I teach -- for many years I taught 2 MIT's major introductory programming course. And 3 more recently I've been teaching a joint course 4 between MIT and Harvard Law School having to do 5 with the interaction between policy and 6 technology issues involving the Internet. 7 Q. Has this case come up in the course of that 8 class? 9 A. No. 10 MR. HART: Sorry? 11 MR. GARBUS: I didn't say anything. 12 MR. HART: I'd like to mark your 13 declaration now. We're up to 4. 14 (Document marked as Exhibit 4 15 for identification.) 16 Q. I show you what the reporter has just marked as 17 Exhibit 4 and ask you to identify that for us, 18 please. 19 (Document exhibited to witness.) 20 A. Yes, that's my declaration. 21 Q. Thank you. 22 MR. GARBUS: You may want to keep it 23 in front of you. He'll be asking you questions 24 about it. 18 1 Q. Were there any prior drafts of this declaration; 2 that is, prior to the one that we see in front of 3 us marked as Exhibit 4? 4 A. There's the declaration I gave in the Bernstein 5 case. I don't think there are any substantial 6 differences between them. 7 Q. Between Exhibit 4 -- 8 A. Between this one and the previous one. 9 Q. Between this one and the one you filed in 10 Bernstein? 11 A. Right. 12 Q. I notice that the penultimate page stops at 13 Paragraph 12, kind of in the middle of the page, 14 and there's a blank, and you turn to the next 15 page for signature. Do you see what I'm saying? 16 A. No, there's nothing.... 17 Q. In other words -- 18 A. There was nothing extra there. I think the only 19 difference is that when -- I'm not sure. I 20 believe when I did the Bernstein declaration I 21 was still teaching the course, and now I'm not 22 anymore, so Paragraph 3, I think, is, Paragraph 23 3, I think has changed, but I'm not positive on 24 that. 19 1 Q. I'm sorry, but you're not? 2 A. But I'm not positive, I'm not even positive of 3 that. 4 Q. Why aren't you teaching that course anymore? 5 A. I just -- people move on, teach different 6 courses, and I've done it since 1979. It seemed 7 like.... 8 Q. Are you getting paid anything for your 9 involvement in this case? 10 A. No. I got a witness fee attached to this. 11 Q. That was from me. 12 A. That was from you? Thank you. I'm told the 13 going rate in Boston is $7. 14 Q. You're welcome. 15 I understand you're going to be away 16 during the trial of this case; is that right? 17 A. I'm planning to be on the West Coast next week 18 and the week after. 19 Q. And how long have those plans been in place? 20 A. The plan for next week has been in place about a 21 month, and the plan for the week after is up in 22 the air at the moment. It has to do with my 23 consulting with Hewlett Packard -- 24 Q. I see. 20 1 A. -- what I have to do there. 2 Q. I see. But until it became -- when did it become 3 up in the air? 4 A. I spend the summer going back and forth between 5 Cambridge and Palo Alto, and in general I'm not 6 sure which coast I'm going to be on which week. 7 Q. I see. And were you ever informed by Mr. Garbus 8 or Mr. Hernstadt about the trial date in this 9 case? 10 A. I was, but I don't remember. I thought you said 11 next week. 12 Q. Do you recall when you were first informed by Mr. 13 Garbus or Mr. Hernstadt about the trial date in 14 this case? 15 A. One of our discussions about the depositions. 16 Probably sometime in the last three weeks, but 17 I'm not positive. 18 Q. Okay. What kind of Internet connection do you 19 have in your office? 20 A. In my office? 21 Q. Uh-huh. 22 A. I have a hundred megabit per second Ethernet that 23 attaches through the MIT artificial intelligence 24 laboratory to MIT's major, what they call the 21 1 backbone network at MIT, which itself has roughly 2 a hundred megabit connection to what's called 3 NERnet. 4 Q. NERnet? 5 A. The New England Regional Network, I believe, and 6 from there to one of the major backbone networks. 7 Q. Do you have any knowledge about the type, speed 8 or bandwidth of the Internet connections that are 9 available to students at MIT generally, whether 10 in student facilities or dorm rooms or the like? 11 A. What I have is typical of MIT. I think all of 12 our dormitory rooms have Ethernet connections. I 13 don't remember whether all of them are hundred 14 megabit. Some of them may be 10 megabit. 15 Q. I'm going to ask you a couple of questions that 16 may require you to do some rough computations. 17 A. Oh, boy. A test. 18 Q. I apologize in advance. 19 A. A test. 20 Q. No, it's not a test. 21 With that type of Internet connection, 22 what's the effective transfer rate of, say, a one 23 gig file within that network? 24 A. Okay. I'm going to embarrass myself. 22 1 Q. Please. We've all done it. 2 A. So a one gig file? Gigabyte, I assume? 3 Q. Yes. 4 A. So that's 8 gigabits. So 8 times 10 to the 10th 5 megabits. 6 You want to know how long to transfer 7 a one gigabyte file? 8 Ten megabits per second. 9 MR. GARBUS: Are you factoring the 10 time of day of this transmission? Midnight? 11 MR. HART: Please, Marty. Whether you 12 were saying that in jest or not, I would 13 appreciate you confining your comments at this 14 point. 15 MR. GARBUS: It was in jest. 16 A. That's 8,000 megabits, roughly. One megabit per 17 second, that would be 8,000 seconds; ten, that 18 would be 800 seconds; a hundred megabits would be 19 80 seconds. So if I take ten megabits per 20 second, that's -- a hundred megabits per second, 21 which is roughly a minute and a half for a one 22 gigabyte file. I hope I'm getting this right. 23 Q. Okay. 24 A. A ten gigabyte file? 23 1 Q. No, one gigabyte file. 2 A. Looks to me to be at a hundred megabits a second, 3 it's a minute and a half; and at ten megabits per 4 second, it's about 15 minutes. 5 That's theoretical capacity. 6 Q. Right. 7 A. Now, state the question again so I can understand 8 the assumptions. That's theoretical capacity. 9 Q. I understand. 10 A. If I were doing it at MIT, for example. 11 Q. Right. 12 A. So if I were doing it at MIT, MIT's backbone as a 13 whole would tolerate a hundred megabits per 14 second, so if there were ten people trying to use 15 the network, I'd get maybe a 10th of that. 16 Q. Is that always true of network connections, or 17 does that depend on how they're switched? 18 A. It depends on how they're switched, and it 19 depends on just lots and lots and lots of 20 details. 21 Q. So let's say on your average day, taking into 22 account the humidity and the other factors Marty 23 was alluding to, in the real world, what transfer 24 rate are you getting on a hundred meg network at 24 1 MIT? What's your real yield, roughly? 2 A. I would have to guess around 25. 3 You have to understand, for very short 4 periods of time, I can get close to the maximum. 5 If you're trying to do something over a long 6 period of time, you're sharing the connection. 7 Q. What do you call a long period of time in the 8 Internet world? 9 A. A minute. 10 Q. Taking our hypothetical one gig file and 11 factoring real world factors into it, what do you 12 think is a real world case for the transfer of 13 that one gig file over your hundred meg network 14 at MIT? 15 A. I'd have to guess around 15 or 20 minutes. 16 Q. Are you familiar with how large a feature length 17 movie file is as embodied on a DVD? 18 A. Not really. 19 Q. Do you have any anecdotal information? 20 A. Let me think. DVD is 600 megabytes. DVD -- no, 21 I just don't. Something like -- it's multiple 22 gigabytes, but.... 23 Q. I'm not asking you to guess, I just wanted to 24 know what you knew. 25 1 Are you familiar with video 2 compression technologies, generally? 3 A. Only a little bit. 4 Q. Do you have any idea -- 5 MR. GARBUS: Bill, do you want to 6 stipulate as to a general number in case you want 7 the doctor to figure it out? Just take a number 8 that we can agree is kind of an average or 9 working number so he can do the rest of the 10 computation? 11 MR. HART: No. 12 Q. We're not going to do a whole lot more math here, 13 Doctor. But I thank you for that computation a 14 minute ago. 15 Do you have any knowledge of the kinds 16 of compression ratios that are currently 17 available under, for example, the MPEG-4 standard 18 for video? 19 A. I would guess, this is just a guess, a factor of 20 ten, but it depends on quality. 21 Q. Is that also something that is developing as a 22 science or technology, that is, there are 23 improvements being wrought on a continual basis? 24 A. Well, I mean, MPEG-4 is fairly recent. I'm not 26 1 aware of things that are going on beyond that, 2 but I know there are people working on it. 3 Q. This is just part of the nature of this beast, 4 because the record gets cluttered. I'll try not 5 to interrupt you. 6 How do you know about MPEG-4? 7 A. Sort of general reading in the technology 8 literature. 9 Q. To your knowledge, is it a commonly available 10 piece of software? 11 A. I don't know. I know it's used. 12 Q. Have you ever heard of Napster? 13 A. Oh, yeah. 14 Q. How did you hear of it? 15 A. More general reading both in technology 16 literature and newspapers; read an article about 17 it this morning in the Wall Street Journal while 18 I was waiting. 19 Q. Do you know if MIT has had a problem with Napster 20 in terms of student usage? 21 A. No. MIT's noticed it, and I know that other 22 universities have. MIT in general has enough 23 capacity that Napster use wasn't a problem, 24 although it was at the level where if it were 27 1 much more, it would become a serious problem. 2 Q. And that's because the bandwidth was being used 3 for so-called file sharing of MP3 audio files? 4 A. Yes. Just because MIT has a lot of internal 5 capacity on its network. 6 Q. What kind of Internet hook-up do you have at 7 home? 8 A. Connection through Media One. 9 Q. What's the effective bandwidth through that? 10 A. I believe it's 300 kilobits upstream, and a 11 little over a megabyte downstream. 12 Q. And by "upstream" and "downstream," you mean that 13 you could get a megabit in if you were 14 downloading something from the Net? 15 A. You could get a megabit -- well, again, 16 theoretically. 17 Q. Right. I just wanted to define upstream and 18 downstream. 19 A. Yes, you can get stuff from the Internet about 20 three or times as fast as you could upload it. 21 Q. Gotcha. 22 CONFIDENTIAL 23 24 Q. Do you have any view of what the sort of standard 28 1 bandwidth is that's available at major 2 universities and colleges throughout the country? 3 A. I tend to think it's -- are you talking about 4 bandwidth in the university or inside the 5 university to the outside? 6 Q. Let's do them both. 7 A. From is usually either 10 or a hundred meg. 8 Q. Meg? 9 A. Megabits per second. Internally, it's about the 10 same, 10 or a hundred. Again, with the external 11 connections, there tends to be bottlenecks and 12 things. 13 Q. Just so that I'm clear, you may have had it 14 perfectly in your own mind, were we speaking of 15 the 10 or 100 meg that we were speaking of when 16 we were talking about MIT a few minutes ago, 17 megabytes? 18 A. Megabits per second. 19 Q. As opposed to megabytes? 20 A. Right. We're talking networks, you usually talk 21 about megabits. 22 Q. So just to be clear, again -- it may be my fault 23 in terms of how I ask the question, I apologize 24 for that -- when we were talking about what the 29 1 typical network bandwidth is at major colleges 2 and universities throughout the country 3 internally -- 4 A. Right. 5 Q. -- what is that bandwidth rate, approximately in 6 your view? 7 A. No, my guess, it's either 10 or a hundred. 8 Q. 10 or a hundred what? 9 A. Oh, I'm sorry. I'm sorry. 10 or a hundred 10 megabits per second. 11 Q. Thank you. 12 A. Theoretical maximum transfer. 13 Q. Okay. And that theoretical is subject to the 14 same variables you described a few minutes ago 15 when we were talking about MIT's network, right? 16 A. Right. The way to understand that is that 17 maximum transfer rate means that's as much as you 18 have for everyone who might be trying to do this 19 at one particular time at the university. 20 Q. But doesn't that also depend on how it's 21 switched, that is, how the network is switched? 22 A. Yes, it depends in complicated ways that I'm not 23 expert enough to really characterize. 24 Q. I'm sorry, I didn't mean to interrupt you. In 30 1 general terms, do you have any understanding of 2 the difference between a shared network and a 3 switched network? 4 A. A shared network and a switched network? No, I 5 don't. 6 Q. Are there networks, to your knowledge, that can 7 make the bandwidth that you mentioned, let's say, 8 10 meg, available to all users no matter how many 9 users are on it? 10 A. Not that I'm aware of. 11 Q. Okay. Can you read object code? 12 A. Sure. 13 Q. Is there a difference, in your view, in the 14 expressive content between object code and source 15 code? 16 A. It depends very much on the circumstances. In 17 general, each one will express different things. 18 Q. But you have not looked at either the object code 19 or source code versions of DeCSS? 20 A. No. 21 MR. GARBUS: Can you take a second? I 22 just want to make one call. 23 MR. HART: Let the record reflect Mr. 24 Garbus is making a phone call. I don't think 31 1 there's a question pending right now. We can 2 take five. 3 (Discussion off the record.) 4 MR. HART: Okay. We're back. 5 (Question and answer read.) 6 Q. What expressive value does object code have? 7 A. Well, object code can tell me a tremendous amount 8 about efficiency. Source code is generally 9 written to be machine independent. 10 Q. Source code is? 11 A. Source code is. And then when you put that 12 through a translator to translate it into 13 something for a specific machine, then the object 14 code is telling you about, in general, the 15 interactions of the original source program with 16 specific details of the architecture of the 17 machine. 18 Q. The object code is? 19 A. That's what the object code will tell you. Then 20 for some applications that will be absolutely 21 critical. 22 Q. In other words, to see how efficiently the 23 program runs, object code has expressive value? 24 MR. GARBUS: I object to what you 32 1 said. He said more than that. But go ahead. 2 A. It's a little bit more than efficiency. Again, 3 it's interactions of the detailed, details of 4 this program execution with the specific 5 architecture of the machine, and that can be not 6 only efficiency but things like reliability, 7 things like how it will interact with maybe other 8 programs that are running on the machine at the 9 same time. 10 Q. What, to your knowledge, was the issue in dispute 11 in the Bernstein case? 12 A. The issue in the Bernstein case was that the 13 government had claimed that posting of various 14 kinds of encryption algorithms, or even in the 15 Bernstein case, a technical paper describing 16 them, violated the Export -- initially it was 17 ITAR, but later the Export Control Act. 18 Q. What is your understanding of the Export Control 19 Act? I'm not looking for a legal dissertation 20 here. 21 A. My understanding is that it's horribly 22 complicated. 23 Q. Is it fair to say until recently there were 24 restrictions on the bit length of certain 33 1 encryption codes that were put into place by 2 government regulation? 3 A. There were certain restrictions on bit length. 4 There were other restrictions as well, but I 5 can't remember them. It's a very convoluted and 6 complicated act, as I recall. 7 Q. Do you remember the bit length restriction that 8 was in place at the time of the Bernstein case? 9 Was it a 40-bit limitation? 10 A. At one point I believe it was 40 bits. I think 11 at some point it got changed to 56. 12 Q. Okay. Have you ever gone to the 2600 web site? 13 A. Yes, I did, when I was looking at this case. 14 Eventually I read it because 2600 had a 15 discussion of the case, so I looked at it, but 16 just only briefly. 17 Q. Was that before or after you got the call from 18 Messrs. Garbus and Hernstadt? 19 A. After. 20 Q. I'm just having to complete the record. 21 A. Yes, it was after. 22 Q. Did you ever have occasion to read the judge's 23 opinion or opinions in this case involving the 24 preliminary injunction? 34 1 A. I skimmed them, again, recently. I skimmed them. 2 Q. Now, if I can try and sum up your declaration in 3 one sentence. 4 MR. GARBUS: That might be a problem. 5 MR. HART: It might be, but let me try 6 it. 7 Q. Would it be fair to say that it's your view that 8 computer programs are expressive in nature and 9 convey ideas that are useful for people that are 10 involved in the evaluation or study of computer 11 programs? 12 MR. GARBUS: I'll object. I think he 13 didn't say it that narrowly. 14 MR. HART: Okay. 15 MR. GARBUS: Why don't you let the 16 witness -- 17 Q. You can correct it. I'm trying to move it along. 18 MR. GARBUS: Why doesn't the witness 19 say what he intends to say in his affidavit. 20 MR. HART: You're going to object that 21 the declaration will speak for itself. 22 MR. GARBUS: Why don't you just tell 23 us.... 24 A. I guess it's my declaration that computer 35 1 programs are mediums of expression for many 2 purposes, and they convey ideas. Often a 3 computer program will be the most appropriate way 4 to express a particular idea about how things are 5 done, and it's quite independent of any 6 particular purpose that someone wants to use it 7 for. 8 MR. GARBUS: Could you just mark that 9 answer because I'm going to want to go back to 10 it. 11 Q. When you said at the end of your answer, in rough 12 ideas, independent of the use to which the 13 program can be put -- 14 A. Yes. 15 Q. -- could we fit into that general statement, 16 independent, say, for example, of the use of a 17 decryption utility? 18 A. Wait. 19 MR. GARBUS: I object to the question. 20 Too many independents. 21 A. Try again. I got lost on you. 22 Q. Okay. I'm sorry. That was my fault, I 23 apologize. 24 Even though you haven't examined or 36 1 analyzed DeCSS in either source or object code 2 form -- 3 A. Right, that's correct. 4 Q. -- is it your position that as a general 5 proposition DeCSS must have some expressive value 6 in its object or source code iterations? 7 A. I'm not sure about "must have," but I would 8 certainly expect that it does. 9 MR. GARBUS: Do you have a copy of the 10 codes with you? Maybe we can show it to the 11 witness. 12 MR. HART: You might want to do that. 13 I'll continue my line of questioning, Marty, 14 though, if you don't mind. 15 Q. I believe in your previous answer, which I made a 16 garbled question over, and I apologize for that, 17 I believe you said that a program can convey 18 ideas independent of whatever use it's for? 19 A. Yes. 20 Q. I think we should go back -- is that right? 21 A. Yes, that's right. 22 Q. So I guess this is a syllogism. You deal with 23 this more than I do. 24 A. Okay. 37 1 Q. Does that mean that DeCSS, as a decryption 2 utility, would, in your view, have value to 3 communicate ideas totally independent of its use 4 as a decryption utility? 5 A. Oh, yes, certainly. 6 Q. Is that essentially your testimony? 7 A. I can give you an example. It's CSS was 8 incompetently designed. So that's an idea that 9 you can get from looking at DeCSS, I would 10 assume. 11 Q. It's also an idea you could express just in the 12 manner you did, isn't it? 13 A. (Witness nods.) 14 MR. GARBUS: Objection. 15 Q. You better verbalize -- 16 A. It would say more. Yes. It would tell me more 17 details about that particular kind of 18 incompetence. And, sure, there are other ways 19 one could say that, but often computer code is 20 the most succinct way to do that. 21 Q. Now, let me pose this to you, because I want to 22 see where you come out in terms of potential for 23 abuse. 24 A. Abuse? 38 1 Q. Yeah. Let's take -- 2 MR. GARBUS: He's not abusive. 3 THE WITNESS: I'm not sure who's being 4 abused here. 5 MR. HART: Well, I hope no one. 6 Q. Let's take some code that in the form of an 7 executable utility would enable anyone who 8 downloads it from the Internet to walk into 9 CitiBank and cause cash to be spit out of 10 someone's account. 11 A. Okay. 12 Q. And I guess I need your view as to where you 13 balance the interests in terms of interest and 14 information about the program versus the 15 proliferation of same on the Internet when that 16 risk exists. 17 MR. GARBUS: I would object. I would 18 allow the witness to answer, if you -- it seems 19 to me that's an endless dialogue, but go ahead. 20 A. Just ask again so I can -- 21 Q. Sure. Here's the example: Someone develops a 22 utility that if downloaded from the Internet 23 enables you to basically go to any CitiBank ATM 24 machine and take money out of someone else's 39 1 account. 2 A. Right. 3 Q. And in view of what I've said about the sort of 4 expressive content of computer code and interest 5 in examining that for whatever reason -- 6 A. Right. 7 Q. -- I guess I'm asking you, Hal Abelson, where you 8 come out professionally and personally on the 9 issue of promulgating that executable utility on 10 the Internet for academic instructive value if 11 there is the risk of abuse that people could 12 download it and take money out of CitiBank using 13 it. Do you understand my question? 14 A. I'd say in that particular case, I would tell 15 CitiBank about it, wait a couple of days, and 16 then make it very clear that either I or someone 17 else would promulgate that code. I think that's 18 probably the most -- I would argue that's 19 probably the most useful thing to do for 20 CitiBank. But, again, it's kind of up to them to 21 say. 22 Q. Based on the assumption that they could change 23 their system? 24 A. Based on the assumption either that they could 40 1 change their system or they certainly, they 2 certainly should know about that weakness, and 3 they certainly should know that that would be a 4 really serious weakness. 5 Q. And notifying CitiBank about that weakness is 6 different than promulgating that utility on the 7 Internet, yes? 8 A. It's different. Sometimes it's very difficult to 9 get people to change, it's very difficult for the 10 people who you inform of this thing to make 11 changes happen. 12 Q. Do you have a view as to the expressive value of 13 promulgating DeCSS on the Internet in this case? 14 A. View as to the expressive value? 15 MR. GARBUS: I object to the form of 16 the question, but I'll certainly let Professor 17 Abelson answer. He's already testified -- 18 MR. HART: Please. 19 MR. GARBUS: Go ahead. 20 A. Well, I think it does quite well at expressing 21 the nature of the Content Scrambling System. I 22 think it -- I would venture to say that had the 23 people who designed the Content Scrambling System 24 had the benefit of the kinds of things I've read 41 1 on the Internet about DeCSS, they certainly would 2 have designed a different algorithm. 3 Q. You've read things about DeCSS on the Internet; 4 is that right? 5 A. Yes. 6 Q. And despite the fact that you're testifying in 7 this case as an expert, and despite your 8 expertise in computers and software, you've had 9 no occasion to actually look at the source or 10 object code in connection with your evaluations 11 or your opinion or your study? 12 A. I wasn't asked to do that. 13 Q. I see. But you didn't find it necessary as a 14 professional to do that? 15 A. Necessary for what? 16 Q. To understand DeCSS or its expressive value, all 17 the things you testified to. 18 A. Oh, in general? 19 Q. Yes. 20 A. I'm not particularly looking at those kind of 21 encryption systems. 22 Q. But we're discussing that kind of encryption 23 system in this case, are we not? 24 A. Well, you are. I'm testifying about the general 42 1 expressiveness of code. 2 Q. Okay. And I'm simply confirming with you, sir, 3 that in the course of your testifying about the 4 expressive nature of code, and in the course of 5 your reviewing things on the Internet about 6 DeCSS, you, as a professional, as an expert in 7 this area, saw no need to actually look at the 8 code, did you? 9 A. It's one of the very many algorithms I haven't 10 looked at. 11 Q. Is there anything else that you intend to testify 12 to in this case in connection with DeCSS, CSS, or 13 any of the issues as you understand them in the 14 case? 15 A. That I intend to testify about? I didn't come 16 here with intentions to testify. I'm just 17 responding to both of your questions. 18 Q. I see. Were there areas that were identified by 19 Mr. Garbus or Mr. Hernstadt, or anyone else, for 20 that matter, as to topics for you to testify on 21 in this case? 22 A. No. 23 Q. Do you have a web site? 24 A. Do I have a web site? My research group at MIT 43 1 has a web site. 2 Q. What's that group's web site called? If I were 3 to go look for it, how would I find it? 4 A. The project on mathematics and amorphous 5 computer -- I'm sorry. The MIT project on 6 mathematics and computing. 7 MR. HART: You know what might make 8 sense to expedite this, if you give me about ten 9 minutes, I'm see what I have left, it may enable 10 me to consolidate. 11 MR. GARBUS: I'm going to ask some 12 questions, so what you may want to do, it might 13 make things go faster, after I ask questions, I 14 presume you're going to want to ask some also. 15 If you want, I can go now, or we can do as you 16 wish; namely, give you a few minutes for you to 17 do it. 18 MR. HART: Why don't we give me a few 19 minutes, then we'll -- 20 MR. GARBUS: Do you have with you 21 copies of the DeCSS source and object code? If 22 so -- 23 MR. HART: I don't think so. 24 MR. GARBUS: We'll take ten minutes. 44 1 (Brief recess.) 2 BY MR. HART: 3 Q. Have you prepared any kind of report or summary 4 of your views or possible testimony in connection 5 with this case? 6 A. No. 7 MR. HART: I don't think I have 8 anything more for you, Dr. Abelson. I thank you 9 for your time and for your candor 10 CROSS EXAMINATION 11 BY MR. GARBUS: 12 Q. Dr. Abelson, on your site do you link to the site 13 of David Touretzky? 14 A. Yes, I put a link to that site after I noticed it 15 when I was looking at the various things about 16 the DeCSS. 17 Q. Do you know whether the Touretzky site has the 18 object or source code for DeCSS? 19 MR. HART: Object, form. 20 A. I don't. I don't know. I know it had a whole 21 bunch of different forms of DeCSS. 22 Q. Now, before you used the express "architecture of 23 the machine." Can you tell me what you mean by 24 that? You were talking about how -- do you 45 1 recall your reference to that? 2 A. Yes. 3 Well, in general it's the 4 architecture, it's the structure by which the 5 machine is put together. So it's such things as 6 the number of registers that there will be, the 7 number of bits in the data paths that connect 8 them, the number and kinds of operations that can 9 happen simultaneously, the size of various 10 registers and portions of memory. 11 Q. And that, you indicated before, was communicated 12 by object code; is that right? 13 A. Yes. Well, you'll see that immediately 14 reflected. I should say that differently. A 15 piece of source code could potentially translate 16 into many different kinds of object code. And 17 then depending on the sophistication of the 18 computer, you'll try to take advantage of 19 different elements of the machine, and you'll see 20 that reflected in the object code. 21 Q. When you say source code can be translated to 22 different object codes, can you describe that for 23 me? 24 A. Sure. There's a translation process. In general 46 1 there are many levels in which languages will be 2 translated. So in the very simplest case, you'll 3 have a program that takes in source code as 4 prepared by a human programmer and produce a code 5 called ASSEMBLY code, which is rather close to 6 the machine, although it's symbolic. And then 7 ASSEMBLY code will be further translated by 8 something called an assembler to something that's 9 really at the level of the machine. 10 In more general cases, you'll have a 11 whole bunch of levels of intermediate code; and 12 even more generally, a program can be prepared in 13 a multiplicity of languages. So it would be -- 14 it's often possible to write much of an algorithm 15 in a very high level language, then write 16 critical details, in fact dropping down to the 17 ASSEMBLY level. 18 Q. When you say a multiplicity of languages, can you 19 explain that for me? 20 A. Yeah, a good example would be something like 21 JAVA, so JAVA people typically write code in the 22 JAVA language. That is compiled or, quote, 23 compiled into something called JAVA bite code. 24 JAVA bite code is a lower level language than 47 1 JAVA source code. However, it's designed to be 2 machine independent. When people ship around 3 little JAVA applets, it's the JAVA bite code 4 that's getting shipped around the network. 5 Then when you get that to the 6 recipient machine, the bite code could either be 7 translated on the fly, which is a process called 8 interpretation, or for other purposes it itself 9 can be compiled by a compiler that's specific for 10 the target machine. So that's an example where 11 you have three levels. And in that case 12 something like JAVA bite code would be called an 13 intermediate language. 14 Q. So you would have source code, intermediate 15 language and then object code? 16 A. Then object code. 17 Q. Now -- 18 A. Although I should say it depends on who's 19 looking. So you'll often find JAVA bite code 20 described as object code. It really is kind of 21 in the eye of the beholder. 22 Q. When you say it's "in the eye of the beholder," 23 then, you also talked about object code showing 24 you operations that are critical to how the code 48 1 operates, how the machine operates. Would you 2 call that expression? Would you explain that? 3 A. Sure, I'll give you a -- 4 MR. HART: I'm going to object to 5 that, but go ahead. 6 Q. Let me rephrase the question so there's no 7 problem about it -- 8 A. Okay. 9 Q. -- in case we -- 10 You used the term "operations 11 critical" in response to Mr. Hart's question. 12 Can you expand on that? 13 A. I'll give you an example. So often an algorithm 14 will have a particular interlude which you want 15 to make run absolutely as fast as possible. One 16 of the typical ways to make things run fast is to 17 take advantage of a property of the machines 18 called pipeline, which effectively means they can 19 set up to do the next operation while they're 20 doing the first one. And often you can have as 21 many as, oh, ten different machine instructions 22 that are all in very different phases of 23 execution, which means your algorithm will run, 24 say, ten times as fast. 49 1 Now, whether or not you're actually 2 able to do that depends on very subtle details of 3 how the algorithm is designed and subtle details 4 of the compilation process. 5 So a particular -- just to give you a 6 particular example, if I have to fetch three 7 numbers from memory and do two multiplications, 8 the particular order in which you fetch things 9 from memory and do the multiplications will have 10 an impact on how well those things can be 11 pipelined. 12 Q. And -- 13 A. So I was going to say when somebody is designing 14 the interlude of an algorithm, it's very, very 15 common that you will in fact write a piece of 16 this algorithm in source code, run it through the 17 compiler to look at what the computer -- look at 18 the object code that the compiler produces, and 19 then modify that object code and feed that into 20 your, feed that into your program. That's an 21 example of what I was talking about before when 22 you have an algorithm that is actually input to 23 the computer by a human as a mixture of source 24 and object code. 50 1 Q. Now, before Mr. Hart asked you about that 2 CitiBank analogy. Can you give me the basis for 3 your statement or your view that you would give 4 CitiBank a certain amount of time; and if they 5 did not respond, then release the information 6 publicly? 7 A. I think it's -- I mean, I don't quite know what 8 it looks like to be sitting at CitiBank and 9 someone calls you up and says there's a major 10 problem in your banking system. I don't know how 11 much you pay attention to that or how much you 12 would even consider it. I don't know that if you 13 were an employee at CitiBank who got such a call, 14 perhaps in the programming department, and you 15 have to convince some vice-president to make a 16 major investment in changing their banking 17 system, I don't know how much luck you would have 18 doing that unless there is some real visible 19 impact to them taking no action. 20 Q. What is the ethical or social value of you 21 releasing that information five days, ten days, 22 or whatever, if a CitiBank doesn't respond to 23 you? 24 MR. HART: Object, form, prior 51 1 testimony. 2 Q. Go ahead. 3 A. Say again. 4 Q. Why would you do it? 5 A. Why would I give them five days notice, or why 6 would I give them only five days notice? 7 Q. Why would you give them notice, and why would 8 you, if they did not respond, then release the 9 information? 10 A. Well, I would give them notice because I think 11 it's the polite thing to do. I mean, if my goal 12 is to actually make things, actually improve 13 things as opposed to my goal being to rob 14 CitiBank, then for one thing it demonstrates 15 intent. This is my goal, I've done it publicly, 16 it demonstrates my good will. Hopefully someone 17 now at CitiBank has seen this; if they know this 18 is going to happen, they would get some extra 19 warning. 20 Q. And if they do nothing, there's a possibility, is 21 there a possibility that people will then go in 22 and rob CitiBank on the basis of the information 23 you've given them? 24 A. Yes, but offhand it's -- in general if you find a 52 1 flaw in a security system, it's wildly unlikely 2 that you're the only person who has found that 3 flaw. And I think the real danger is that there 4 are people who are trying in fact to rob CitiBank 5 and are looking at this stuff very, very 6 carefully. I think by the time this stuff gets 7 out to the public, they're unlikely to be the 8 first to know. 9 Q. So is it your testimony that you're being 10 protective, in a way, of CitiBank by releasing 11 the information? 12 A. I think I'm doing them a service. I'm not 13 exactly sure -- I'm not sure they would 14 characterize it as protective of them. 15 Q. Why do you think you're doing them a service? 16 Why do you think you're doing them a service? 17 A. Because I'm strongly encouraging them to improve 18 their system, with the likelihood that they are 19 guarding against security attacks that they do 20 not know about. 21 Q. Now, you say the DeCSS shows you how weak CSS is? 22 MR. HART: Object, form and prior 23 testimony. 24 Q. Can you expand on that? 53 1 MR. HART: Same objections. 2 A. Well, the descriptions -- be careful. The 3 descriptions I have read of DeCSS, based on other 4 people who have seen it, demonstrate that it is 5 extremely weak. 6 Q. Do you know how and do you know where? 7 A. Two primary ways: Apparently it's 40-bit 8 encryption. So given merely that you know it's 9 40-bit encryption, I would expect you could 10 break, you could break something in a couple of 11 minutes. 12 And the second way it's weak is that a 13 DeCSS recorder holds a decryption key -- I'm 14 sorry, DeCSS player holds a decryption key that 15 will decrypt any CD, so it's roughly -- it's 16 roughly as if, if I understand it correctly, 17 every recorder holds -- if I have a box that I 18 give everybody that has a key to your house, and 19 this key will open the lock on everybody's house, 20 so all somebody has to do is compromise one 21 recorder, and then you can decrypt every DVD. 22 Q. Do you know that in fact those recorders have 23 been compromised? 24 A. No, I don't know. 54 1 Q. Do you know when the first cracks of CSS were 2 published? 3 A. No, I don't know. 4 Q. You mentioned before, you used the term 5 "theoretical capacity" in response to Mr. Hart's 6 question. What are the variables that affect 7 theoretical capacity? 8 A. That affect the theoretical capacity? 9 Q. Yeah. Concerning the computations you gave 10 before. 11 A. I want to make sure I understand the question. 12 Q. Go ahead. 13 A. You're asking if I were looking at a network and 14 saying what is it's theoretical capacity? 15 Q. Yes. And what are the characteristics that you 16 consider when you get to its real capacity? In 17 other words, how is the theoretical capacity -- 18 A. Okay. Those are two different questions. 19 Q. Pardon me. 20 A. So theoretical capacity has to do with sort of 21 the basic bandwidth of the individual pieces of 22 the network, as I might measure in the 23 laboratory. It might have to do with, if I took 24 one of the switches and drove it under ideal 55 1 circumstances, how fast it could switch. 2 Let me think what else. 3 Generally it doesn't consider 4 bottlenecks coming from the individual servers at 5 the end of the system. 6 Q. Can you describe to me what you mean by 7 bottlenecks from the servers at the end of the 8 system? 9 A. Quite simply, if my machine is trying to serve up 10 a file and trying to do 50 other things at the 11 same time, it may not be able to feed the network 12 as fast as it possibly could. Similarly with the 13 machine on the other side that's receiving. 14 Similarly, there are addressing 15 bottlenecks in the Internet. If I have to go 16 through -- if I'm connected through something to 17 something by multiple hops, and depending on how 18 those switches are configured, there can be 19 slowdowns there. 20 Q. Is distance a factor? 21 A. Well, distance in -- 22 MR. HART: Object, form. 23 A. -- itself is not a factor. Distance in the sense 24 of the number of hops that you have to go through 56 1 is a major factor. 2 Q. Can you tell me why and how? 3 A. Because every time -- what happens is sort of a 4 piece of information goes over one segment of 5 network, and then gets effectively to a switch or 6 sometimes to a machine that acts as an 7 intermediate way station for it. And then the 8 rest of the path has to be recomputed. And that 9 takes a little bit of time. By the time you get 10 a couple of hops, those things add up. 11 MR. GARBUS: Now, Bill, I presume we 12 don't have to go through the affidavit line by 13 line? I presume we can stipulate if he were 14 asked questions with regard to each allegation in 15 the affidavit, he would confirm it as his 16 testimony. If you want, I'll show it to him and 17 say, "Is that your testimony?" 18 MR. HART: I think I understand what 19 you're asking me, and without waiving any 20 objection to the fact that you're trying to 21 perpetuate the testimony, if your question is, 22 would Dr. Abelson testify to the effect that he 23 set forth in his affidavit, I think you can just 24 ask that question and have him answer it. 57 1 BY MR. GARBUS: 2 Q. Would you, if I were to ask you questions about 3 your affidavit, testify that the allegations in 4 your affidavit are accurate and true today? 5 A. Yes. 6 Q. In the Bernstein case, do you know if it was 7 object, source code, or a combination? 8 A. I believe that Bernstein himself published source 9 code, and also I believe technical memos that 10 weren't encoded at all. And I believe the 11 government's injunction covered both of those. 12 There may have been arguments before 13 the Court about source and object code, but I 14 didn't look at those. I don't believe there was 15 a distinction -- 16 Q. You don't -- 17 MR. HART: I'm sorry, let the witness 18 complete his answer. 19 A. I don't believe there were distinctions made, but 20 I don't remember. 21 Q. In Younger, do you know if it was object code or 22 source code? 23 A. No, I don't. Under the impression -- 24 Q. Put aside what the Court said. Do you know what 58 1 it was, in fact? 2 MR. HART: Object. 3 A. I don't quite remember exactly what the Court 4 said, but I don't believe people were talking 5 about those distinctions very much. 6 Q. Why? 7 A. Because they were just talking about, again -- 8 MR. HART: Continuing objection to 9 this. Go ahead. 10 A. Again, I don't remember exactly what Younger was 11 doing, but he was talking about teaching stuff in 12 his class, and I believe it was just discussing 13 things at the algorithm level, but I'm not sure. 14 Q. Insofar as communicative expression, then, to 15 your mind, or to your, based on your education 16 and writing and teaching, are source code and 17 object code both covered as communicative 18 expression? 19 MR. HART: Object, form. 20 A. Well, both -- yes. I mean, both -- if I take a 21 particular program, and I look at it in its 22 source form or in its object form, those express, 23 those communicate, those communicate different 24 things, and depending on what I want to do, I'll 59 1 want to look at them in different forms. 2 Q. Does the fact that you haven't actually seen the 3 DeCSS source code or object code change your 4 opinion that DeCSS object and source code are 5 both covered as communicative expression? 6 MR. HART: Same objections and prior 7 testimony. 8 A. Change it from? I haven't looked at it so.... 9 Q. Instead of change it from, is it your view that 10 even though you have not looked at it thus far, 11 that DeCSS source and object code both come 12 within communicative expression? 13 MR. HART: Same objections. 14 A. I would expect they do. 15 Q. Why? 16 A. As I said, I assume that someone inferred that 17 there's a 40-bit key from looking at the source 18 code, where the object is, as an example of 19 something expressed. Someone inferred that 20 there's a global master key that is sitting on a 21 DeCSS recorder, from looking at either the source 22 or object code. So that certainly would count as 23 something that was expressed. 24 I would imagine that if I were -- if 60 1 someone wanted me to design a, say, a computer 2 program -- in fact, I don't know. I don't know 3 how the various player programs work, but I 4 assume that if someone asked me to write 5 something that simultaneously decrypted something 6 while it played it, or if someone said to me, 7 "Try to minimize the amount of intermediate 8 storage that a software program that would play a 9 DVD would work," that's a place where I would 10 want to look at the object code, specifically to 11 talk about these pipelining issues that I 12 mentioned before. 13 Q. Now, Mr. Hart asked you about your schedule. The 14 trial starts July 17. Tell me your schedule for 15 the 17th. 16 A. What day of the week is the 17th? 17 Q. A Monday. 18 A. I am planning to be on the West Coast right now 19 on the 17th. What I can say pretty, with pretty 20 much certainty, is that I will be on the East 21 Coast either the week of the 17th or the week of 22 the 26th, and I haven't decided which one yet. 23 Q. And is that consistent with your Hewlett Packard 24 obligations? 61 1 A. Yes. 2 Q. That's what draws you out there? 3 A. That's what draws me out there. 4 Q. Now, Mr. Hart asked you some information about 5 transmission times. Let me show you an affidavit 6 of Michael Shamos. 7 MR. GARBUS: Can we mark this as an 8 exhibit? I only have one copy. 9 By the way, you do not have DeCSS or 10 CSS with you, or the object or source code. 11 MR. HART: I think you asked me that 12 before, and I think I told you no. 13 MR. GARBUS: Okay. 14 (Document marked as Exhibit 5 15 for identification.) 16 MR. HART: May I see what you're 17 showing the witness, please? 18 MR. GARBUS: Let the record indicate 19 I'm showing the witness an affidavit from a 20 Martin Shamos, it's the identical affidavit. The 21 only thing that's different is on the front page 22 in my handwriting is Mr. Abelson's phone number. 23 MR. HART: There's also a handwritten 24 notation on the 6th page of this. 62 1 MR. GARBUS: Yes, there is. 2 MR. HART: You know, without 3 belaboring, this I sort of object to your handing 4 the witness something that somebody else has 5 marked on. That's not a true copy of the 6 exhibit. 7 MR. GARBUS: Okay. 8 MR. HART: If I said "I sort of 9 object," I strenuously object. 10 (Document exhibited to witness.) 11 Q. I show you -- 12 A. Is there something I'm not supposed to see here? 13 Q. No, no, no. 14 I show you the affidavit of Michael 15 Shamos, and I ask you, with respect, if you can, 16 with respect to his computations and his 17 analysis, if you can give me your views of that. 18 A. So I've seen this before. You faxed it to me a 19 couple of days ago. That's my fax number that's 20 written on there. 21 I've been thinking about it some. I 22 think the -- I'm certain the facts in there look 23 true. Shamos has a very good reputation. I 24 think he's very well respected. We were both at 63 1 Princeton at the same time. He had a very good 2 reputation at Princeton. 3 There's nothing in here to disbelieve 4 his, except that it's based on -- the 5 implications are based on theoretical capacity. 6 So I notice he talks about transmitting a DVD 7 movie in less than 20 minutes, and I think -- so 8 it looks like I got the test you gave me right, I 9 said about 15. That sounds about right for 10 transferring it. 11 The one thing that he doesn't take 12 account of, though, is actual network capacity as 13 opposed to bandwidth. So if you go back to -- 14 you asked me about Napster before, and university 15 banning it. 16 MIT, as I said before, didn't ban it 17 or didn't have a problem with it, but many 18 universities did, and they had a problem because 19 of capacity. The notion here that a lot of 20 people would be transmitting DVDs is going to, is 21 probably going to be impossible because of 22 constraints on network capacity. 23 So, for example, let's suppose I take 24 a DivX compressed DVD. If I use Shamos's numbers 64 1 here -- what does he say? He doesn't say 2 exactly. But assume it's, when I compress it, 3 it's 600 megabytes, so it's roughly a CD. And 4 then he talks about -- 5 Q. Excuse me. Can we just -- 6 MR. HART: I'd like the witness to 7 complete his testimony rather than you interrupt 8 him. 9 Q. I know that. Can we use as an assumption that a 10 DVD is somewhere between 5 and 8 gigabytes? 11 MR. HART: Objection. You're 12 testifying. 13 THE WITNESS: Wait, wait. 14 MR. HART: The witness was saying 15 something different, and you have interrupted 16 him. 17 Would you mark this, please, Ms. 18 Reporter, because I think that was inappropriate, 19 Marty. 20 A. Let me speak to, actually -- 21 Q. Okay. Do it without my reference. 22 A. What Shamos did where -- what he's talking about 23 is pushing around the compressed form, which is 24 what he got from this other person over the 65 1 Internet, in 20 minutes. Let's leave aside what 2 an uncompressed, what he says here, 3 multigigabyte. Let's only talk about the 4 compressed one, the thing he's actually writing 5 to. 6 So he transmitted -- what did he do? 7 He transmitted that from this other person in, he 8 said, 11 hours, which sounds reasonable, given 9 that that person was probably at home, or 10 something. Then he said that if that were going 11 on between students in the university, you could 12 do the same thing in 20 minutes. That's true 13 based on bandwidth. 14 However, if you assume that that's a 15 600 megabyte file, then transmitting a 600 16 megabyte file in 20 minutes is a data rate of 17 something like 4 megabits per second. So before 18 we were talking about 10 or a hundred. So if you 19 assume -- assume you're only using 4 megabits per 20 second. 21 Now, at a place like MIT, you have a 22 hundred megabits per second available for 23 everybody. So what that says is that if 25 24 people were simultaneously doing this, you would 66 1 completely saturate the MIT network. And I can 2 assure you if five people were simultaneously 3 doing this, this would have a pretty big impact 4 on the MIT network. 5 Q. Why would it saturate the network? 6 A. Because -- when you say that the network is a 7 hundred megabits per second, so at MIT that is a 8 shared hundred mega bits for everybody, and that 9 means that if people are using -- if there are 25 10 people, each of whom are transferring at 4 11 megabits per second, then you've used up the 12 entire network capacity for anything at all, 13 electronic mail, messaging, anything. 14 So I think what you find is the same 15 phenomenon that encouraged some universities to 16 close down Napster; you'd have that phenomenon 17 multiplied by ten or a hundred using these 18 numbers. And certainly well before you got to a 19 lot of DivX trading, you would have universities 20 shut this down, quite apart from any issue about 21 liability or legality or anything. 22 The same phenomenon -- he goes on and 23 talks about Internet 2. So my understanding of 24 Internet 2 right now is that there's about 2.4 67 1 gigabits per second. You've got to remember, 2.4 2 gigabits per second shared for the whole country. 3 So that means if you had 6,000 people who were 4 simultaneously pushing one of these DivX files 5 around, you would shut down all of Internet 2 for 6 all university connections for the whole country. 7 So the analogy is, imagine that there 8 was a special kind of phone call that somebody 9 could make, and this phone call took 20 minutes. 10 And if at any given time you had 6,000 people 11 somewhere making, somewhere making this 20-minute 12 phone call, you shut down the entire U.S. phone 13 system. It just wouldn't work. 14 I don't know what the actual numbers 15 can be, but this, but the notion that simply 16 because the theoretical bandwidth is there that 17 you would actually have that kind of trading 18 going on on the Internet is a little hard to 19 believe, certainly in this generation of Internet 20 technology that's available to universities, 21 almost certainly in the next one, which is 22 Internet 2, and you can't quite say after that. 23 Q. When you say this generation, the next 24 generation, how many years are we talking about? 68 1 A. Internet 2 is just starting. And what are people 2 talking about? MIT is just hooking up to it. I 3 would expect -- I don't quite know the roll-out 4 plans. I would expect it's something like two 5 years. I haven't even heard people talking very 6 much about generations after that. 7 Q. Now, when you talk about MIT's capacity, is that 8 larger than most universities, smaller than most? 9 Can you give me a context? 10 A. It's larger than most. 11 Q. Can you tell me something about that? 12 A. It has to do with the whole infrastructure. So, 13 again, you can lay cables -- it has to do with 14 how many routers and how many switches you have 15 and how well you keep them up to date. 16 I don't have any facts on 17 universities, but, again, as I said, Napster 18 wasn't a particular problem for MIT, and I know 19 that it was for lots of other universities. But 20 whether that's a factor of 2 bit or a factor of 4 21 bit or a factor of 10 bit, I don't know. 22 Q. You've talked about transferring music files, 23 Napster, and transferring movie files, let's say 24 through DVD. What is the difference in size of 69 1 the material being transferred and the amount of 2 time that -- the time difference? 3 MR. HART: Object, form. 4 A. Well, the difference is the size of the files you 5 have to transfer. 6 Q. Can you give me some sense of that difference? 7 A. Well, let's use Shamos' numbers. There are three 8 stages. There's uncompressed video, like you 9 would get out of running DeCSS. So we use 10 Shamos's numbers, he says those are 11 multigigabytes, so, I don't know, say 6 12 gigabytes. Then there's compressed down to DivX, 13 which I gather from his numbers is something like 14 600 megabytes. But, again, I don't know what 15 quality that is. I believe they compress to 600 16 megabytes because people want to write them on 17 CDs, but I don't know what quality compromise you 18 make from going to multigigabytes to 600 19 megabytes. Let's use the 600 megabytes. 20 600 megabytes is about what, is about 21 what fits on an audio CD. So let's assume that's 22 an hour of uncompressed audio music. 23 Now, if we compare that with Napster, 24 Napster, first of all, is transmitting MP3, which 70 1 is about a factor of 10 over, factor of 10 2 compression. So you start with your one CD and 3 you get a factor of 10 for compression. And how 4 long is a song, five minutes? So that's a 20th 5 of an hour. You tell me. I'm thinking about 6 people trading Napster songs. Let's say it's a 7 10-minute song. So that says it's transmitting 8 one DivX, one DivX compressed feature length 9 movie is a hundred times transmitting a Napster 10 song. 11 Q. If it's not compressed? 12 MR. HART: Objection, form. 13 A. If the movie is not compressed. 14 Q. Then what is the -- 15 A. God. So we're doing 600 megabytes to -- let's 16 use 6 gigabytes. So it's another factor of 10. 17 Q. So what is that? 18 A. A thousand Napster songs. 19 Q. Now, you said -- you talked about Internet 2, 20 let's say, having a life of two years until 21 something -- 22 A. I believe they're rolling it in over two years. 23 But, again, I'm not sure. 24 Q. And tell me how you arrive at that? How do you 71 1 know that? 2 A. This is just impressions from talking to people. 3 Again, MIT has been planning for this for a year, 4 and we don't quite have it yet. And we tend to 5 be closer to the backbone than a lot of other 6 universities. 7 Q. Do you know of any other universities that have 8 gone into Internet 2 yet? 9 A. Probably -- Shamos mentioned CMU. They're 10 certainly very early in putting the technology 11 on. I would expect Stanford, I would expect 12 Cornell, UCLA. 13 Q. Now, with respect to the consumer -- go ahead. 14 A. No, I'm just trying to.... 15 Q. When you talk about Internet 2, you're talking 16 about something that the universities are 17 starting to deal with. With respect to the 18 consumer, how long is it before you will have 19 this next generation available? 20 MR. HART: Objection to form. 21 A. I don't -- 22 MR. HART: And prior testimony. 23 A. I don't know. I don't know of plans that are 24 much beyond cable modems going to houses. 72 1 There's talk about people trying to, but I know 2 of no plans that are particularly faster than 3 what you get over cable modem. 4 Q. I draw your attention in the Shamos affidavit 5 where he says he uses DeCCS software. What is 6 the significance or lack of significance of him 7 using DeCCS to do his experiment in transmission? 8 MR. HART: Objection, form, prior 9 testimony. 10 A. Well, that's one of the things he doesn't, that 11 doesn't quite come out here. One of the things 12 that you don't know is he went through this whole 13 process, which started with a DVD and ended up 14 with a compressed DivX file. One step in that 15 process is running DeCSS. And then the question 16 is in terms of the overall process that you have 17 to go through, how much of that is DeCSS; and if 18 you didn't have DeCSS, could you effectively get 19 the same thing. 20 I would imagine he could have just 21 taken his -- what did he do -- a video player, he 22 could have just taken the output of whatever he 23 played it on and intercepted the signal and 24 gotten a computer file, and he would have had 73 1 something that is functionally equivalent to 2 having run DeCSS on that thing. 3 And then by the time you take that and 4 you compress it through DivX, I would be actually 5 pretty surprised if you could see the difference 6 between someone starting with a DVD, running 7 DeCSS to get the output, and compressing it, 8 versus starting with the DVD, just grabbing the 9 output of the video player and compressing it and 10 producing the same file. And one of the things 11 -- I wouldn't even know which process would be 12 more difficult. 13 Q. When you say "more difficult," you mean also 14 faster and more efficient? 15 A. Faster and more difficult. 16 Q. You don't know which one would produce a better 17 image? 18 A. I would -- again, I would venture to guess that 19 you couldn't tell the difference. But someone 20 ought to -- 21 MR. HART: Wait. Again, I'd like the 22 witness to finish. 23 A. I would venture to guess you couldn't tell the 24 difference, but someone ought to try that and 74 1 see. 2 Q. Do you have any sense of what you lose when you 3 do a compression of the kind that has been 4 described in the loss of image? Have you ever 5 seen anything with that degree of compression? 6 MR. HART: Object, form. 7 A. No, I don't know. There's also, there's the 8 sound compression that you have to worry about, 9 too. 10 One of the things I did notice is that 11 there's this step in here where he talked about 12 having to fix the desynchronization. For all I 13 know, if you grab the video from the output 14 recorder, you wouldn't even have to do that step. 15 But, again, I've never done either of those. 16 Q. Tell me why you think you might not have to do 17 that step? 18 A. Because you're getting the output synchronized 19 from the recorder. If it comes out as a MP3 20 file, then you just have it synchronized. 21 Q. In a way, DeCSS is less user friendly than this 22 other process? 23 MR. HART: Objection, form, prior 24 testimony. 75 1 A. Well, I'm not sure that either of them is less -- 2 I'm not sure I would characterize either of them 3 as user friendly. It's not clear that if I'm in 4 the business of wanting to copy videos to send 5 them over the network to a friend somewhere, it's 6 not clear to me having DeCSS makes a big 7 difference in whether or not I can do that. 8 MR. GARBUS: I have no further 9 questions. 10 MR. HART: I'm going to have a few, 11 but I would like to take five minutes before I 12 do. 13 (Brief recess.) 14 MR. GARBUS: I'd like to ask the 15 witness a few more questions that came to me 16 during the break. 17 MR. HART: While you were talking to 18 the witness off the record? 19 MR. GARBUS: Oh. Sure. 20 BY MR. GARBUS: 21 Q. You had indicated before that your site linked to 22 the Touretzky site; is that correct? 23 A. Yes. 24 Q. And you indicated that the Touretzky site 76 1 contains various material. To your knowledge, 2 does it contain source codes and object codes for 3 DeCSS? 4 MR. HART: Object, asked and answered, 5 prior testimony. 6 A. I believe it had links to a whole bunch of 7 different descriptions of DeCSS. I think some of 8 them -- I think one was source code. I think one 9 was a picture. I think one was a T-shirt. I 10 didn't look in detail. I don't know whether it 11 had object code or not. 12 Q. Is it your perception that you were doing 13 something illegal in linking to a site that might 14 have object or source code -- 15 MR. HART: Object. 16 Q. -- of DeCSS? 17 MR. HART: Same objections, prior 18 testimony. 19 A. No, of course -- it's certainly not illegal. 20 Q. Do you know what the World Wide Web Consortium 21 was or is? 22 A. Yes. I was part of setting up the World Wide Web 23 Consortium at MIT. 24 Q. And what is it? 77 1 A. It's an organization whose mission is, quote, "to 2 bring the Web to its full potential," and it does 3 this by advocating different kinds of standards 4 and interoperability standards. 5 Q. Is the consortium just a private organization or 6 is the government involved in it? 7 A. It's a group of mostly members who are private 8 companies. I don't remember whether there are 9 any government organizations who are members, but 10 there may be. And it's sponsored by a couple of 11 universities, MIT being one of them. 12 Q. Who are some of the private companies that are 13 involved, if you know? 14 A. Microsoft, Hewlett Packard. I believe the Direct 15 Marketing Association is a member. I forget. I 16 think there are about 400 members. 17 Q. And have they expressed any views on linking? 18 MR. HART: Object, the obvious 19 reasons. 20 A. The World Wide Web Consortium takes the position 21 that linking is a reference, and it's fundamental 22 to the architecture of the Web that people link 23 and that you have these references, and that's 24 how the Web is glued together. 78 1 Q. Does the name Timothy Berners-Lee mean anything 2 to you? 3 A. Tim Berners-Lee, he's the chairman of the Web 4 Consortium and the inventor of the World Wide 5 Web. 6 Q. And the author of a book called Weaving the Web? 7 A. Yes. 8 Q. Do you know on the Web you can link to 9 information about making bombs? 10 A. I believe you can. You can discuss that it 11 exists. 12 Q. And you can link to sites that give you the 13 formula for seran gas? 14 A. I believe you can. 15 Q. Do you know what seran gas is? 16 A. I guess it's a poison gas, very dangerous poison 17 gas. 18 Q. And is it your view, as someone who is a member 19 of the world wide consortium, that linking should 20 be permitted to things like DeCSS or bomb making 21 or the creation of seran gas? 22 MR. HART: I object. 23 Q. And can you break it down with respect to any one 24 of those three? 79 1 MR. HART: I object, and also on 2 competence grounds. Are you testifying on behalf 3 of the world wide consortium? 4 MR. GARBUS: No, he's not. 5 MR. HART: I maintain my objection. 6 MR. GARBUS: Go ahead. 7 A. In my view, telling people that information is 8 available in general should not be prohibited. I 9 think that by -- you're not implying advocacy or 10 responsibility or anything, you're just telling 11 someone that something is available somewhere. 12 Q. Now, when was the World Wide Web formed? 13 A. The Web itself was invented, I believe, in 1990, 14 I think. And it came to MIT in 1995, 1994. I 15 believe that's when the consortium was set up. 16 Q. And the consortium exists today? 17 A. Yes. 18 Q. And how many academics are part of that 19 consortium or members of the consortium? 20 A. Individual academics? 21 Q. Yes. 22 A. Formally, organizations join. Most of the 23 organizations are companies. But many people who 24 are informally associated with it and their 80 1 conferences, generally, are in large part 2 academics who are writing things about Web 3 standards and Web technology. 4 Q. And have you done any writing in that area? 5 A. Not in any of the Web Consortium journals. 6 Q. Elsewhere? 7 A. Mostly been informally involved with working with 8 people in the Consortium design standards. 9 Q. Do you, in any of your classes, or, to your 10 knowledge, do any of the MIT professors teach 11 object code or how to read object code in their 12 classes? 13 A. Oh, I -- teach how to read -- there certainly are 14 many classes in which you read object code. 15 Q. Is that something that's taught also, how to read 16 it? 17 A. Yeah, how to read it, how to write it. I would 18 have said that up until ten years ago, it was 19 completely standard to program, to have courses 20 in programming what's called ASSEMBLY code. 21 Q. Is it your experience that students now come into 22 MIT, many of them already knowing how to write 23 object code? 24 A. Many? Yeah, I think "many" is correct. Again, 81 1 it depends on the particular machine. 2 Q. How long have you been teaching at MIT? 3 A. Since 1973. 4 Q. And what is your status there? 5 A. Full professor. 6 Q. How long have you been a full professor? 7 A. Good question. I don't remember. 1983, perhaps. 8 1984. 9 Q. Where were you educated at? 10 A. I have a graduate degree from MIT and 11 undergraduate degree from Princeton. 12 Q. And the curriculum vitae that has been marked as 13 Exhibit 1, is there anything you would add to it 14 or is there anything more recent or anything more 15 relevant to today's discussion that you can think 16 of? If not.... 17 A. You might want to add the -- I mentioned the 18 joint course I teach with Harvard Law School, but 19 other than that.... 20 MR. GARBUS: Go ahead, Mr. Hart. I'm 21 through. 22 MR. HART: You're really done? I 23 maintain my objection to all of that. 24 MR. GARBUS: Unless I have another 82 1 thought. 2 MR. HART: I do have a few questions 3 for you. 4 REDIRECT EXAMINATION 5 BY MR. HART: 6 Q. You mentioned earlier that one of your areas of 7 consulting for Hewlett Packard was -- correct me 8 if I'm wrong -- to develop systems that were 9 password protected; is that right? 10 A. I'm not sure that's the right question. 11 Q. What is the right question? 12 A. You mean different kinds of authorization 13 mechanisms for having people get at things. Some 14 of them are passwords, some of them -- there's 15 work being done in smart keys, there's work being 16 done in biometrics. 17 Q. I didn't mean to confine it to passwords per se. 18 What's the reason for having systems 19 that require an authorization before a person can 20 access the information that's on the system? 21 A. The deep reason is that you don't want to give 22 everybody access to everything you have. The 23 proximate reason is that as organizations connect 24 more to the World Wide Web, they're opening up 83 1 their internal systems to a degree that was just, 2 no one contemplated before. So as soon as you 3 have people potentially being able to access 4 anything on any of your computers, you want to 5 restrict access to all sorts of people within and 6 without the organization. 7 Q. Gotcha. But, for example, there is a utility in 8 having such systems for the purpose of exchanging 9 scientific and research information; is that 10 correct? 11 A. Having -- 12 Q. I said such systems, namely systems that require 13 an authorization code to enter. 14 A. There's not a special one for scientific 15 information. 16 Q. I'm sorry, it was a general question. 17 A. Generally scientific and technical information, 18 well, from a university would go out free, but of 19 course in an industry, I mean, much of scientific 20 and technical information would be confidential. 21 Q. But research and scientific information can be 22 shared through such networks requiring an 23 authorization code, whether or not there's a 24 charge made for access; isn't that correct? 84 1 A. Oh, I wasn't thinking about consumer stuff at 2 all. A more typical arrangement would be two 3 companies doing joint research. They'll set up a 4 system that some group of people in company A can 5 share information with some group of people in 6 company B, and that's a very important mode of 7 collaboration because they might be working on 8 something that's confidential to the two of them. 9 Q. And would that include activities like reverse 10 engineering? 11 A. Sure it could. 12 Q. And is there any reason why that model would not 13 apply to any other kind of reverse engineering or 14 sharing of information in an engineering context, 15 namely authorization protected -- 16 A. Wait a minute, I lost -- 17 MR. GARBUS: I don't understand the 18 question. 19 A. I lost where you're saying reverse engineering. 20 Q. Let me just try to simplify it. You've talked 21 about the sharing of information over sort of a 22 private net through authorization and I'm -- 23 A. Right. 24 Q. -- asking you whether that model has utility for 85 1 the sharing of scientific or engineering 2 information outside of strictly commercial 3 applications? 4 A. Yeah. Yes, certainly. 5 Q. Okay. Now, during the course of the testimony 6 that you gave Mr. Garbus, you referred a couple 7 of times to DeCSS player or recorder. I wanted 8 to make sure your testimony was clear in that 9 regard. 10 A. If I did, I shouldn't have said that, I should 11 have said DVD recorder or player. 12 Q. Okay. You also mentioned hops in the course of 13 your testimony. 14 A. Oh, okay. 15 Q. Can you tell me what an average string or trace 16 of hops would be for a normal Internet 17 communication? Is there an average? 18 A. I don't know if there's an average. Certainly 10 19 is pretty common. I wouldn't know what an 20 average is. 21 Q. The more hops there are, the slower the transfer 22 rate or the potential risk that the transfer rate 23 is going to be slower? 24 A. In general. 86 1 Q. And do you, the user, at one end of that chain 2 have any ability to control the number of hops by 3 how you route the signal? 4 A. No, almost never, other than in sort of very 5 experimental settings by people doing network 6 research. But the design of the Internet does 7 that routing adaptively on purpose. So there are 8 a couple of experiments that people are working 9 on that allow you to control that, but an average 10 user has no access to that. 11 Q. Do you? 12 A. No. I mean, for example, the people who do 13 network research at the laboratory for computer 14 science where I work, for the experimental 15 networks they're working on, are able to control 16 that. 17 Q. Gotcha. To improve network efficiency? 18 A. Right. 19 Q. And to reduce the number of hops? 20 A. Right. That's one. 21 Q. Now, you were talking with Mr. Garbus about the 22 consumption of bandwidth, if you will, when 23 multiple users are sharing files of different 24 sizes, right? 87 1 A. That's right. 2 Q. Is there a difference, to your understanding, 3 between a shared or hub-type network and a 4 switched network; and if so, what is that 5 difference? 6 MR. GARBUS: That's already been asked 7 and answered, but go ahead. 8 A. I don't -- I don't quite know how to characterize 9 that difference. I'm not quite sure what you 10 mean. 11 The particular estimates I was giving 12 were quite independent of that because they were 13 simply talking about what's the aggregate around 14 MIT as opposed to -- I think what you might mean 15 is there some master switch in which everything 16 at MIT has gone -- 17 Q. No, no. Let me try and help you. 18 We were talking about bandwidth and 19 effective transfer rate as a function of 20 bandwidth, right? 21 A. Right. 22 Q. And you postulated that given the size of files, 23 even DivX files, that multiple users sending 24 multiple DivX files would consume available 88 1 bandwidth at a certain point, making the delivery 2 of movies over the Internet, at least now, 3 impractical; is that a fair -- 4 A. Right. What I said -- 5 Q. -- statement of what you said in your direct 6 testimony a moment ago? 7 A. Yes. 8 MR. GARBUS: Let the witness answer. 9 MR. HART: I'm sorry, Mr. Garbus? 10 MR. GARBUS: Go ahead, he's answered. 11 Q. And my question is whether that testimony was 12 based on something called a shared network or a 13 hub network rather than a switched network; and 14 in that context, if there is a distinction 15 between those things, I would like you to tell me 16 what your understanding is of that distinction? 17 A. I don't know. I don't think the estimates I was 18 making depend on that. 19 Q. In any way whatsoever? 20 A. I think someone can make many more detailed 21 estimates that would reflect on that, but I was 22 saying an overall generalization. 23 Q. Right. Again, not going to the particular 24 numbers in any case, number of minutes, but going 89 1 to the proposition that multiple users sharing 2 multiple files simultaneously would consume 3 bandwidth? 4 A. Yes. 5 Q. Going to that proposition and that proposition 6 only, my question is, is there -- do you have any 7 understanding of whether there's a difference in 8 regard to the use of shared networks and switched 9 networks as it affects consumption of bandwidth? 10 MR. GARBUS: He's already answered. 11 Go ahead. 12 A. Okay. I think I understand. This is something I 13 know about only vaguely. 14 Q. Only? 15 A. Only vaguely. 16 Q. Vehically? 17 A. Vaguely. Vaguely. 18 Q. I'm sorry. 19 A. I think at the level that I was talking about, it 20 doesn't matter, because I was talking about the 21 network backbone at MIT, and so -- how do I say 22 this? I don't know that you can set up a 23 switched connection at MIT, but assuming you 24 could, you're still drawing bandwidth from that 90 1 backbone. So it doesn't matter whether you're 2 sharing it or switching it at that level. 3 I know at MIT we have a hundred 4 megabits, and we can presumably choose to 5 allocate some of that by switching networks, 6 which I'm almost sure we do not, but it doesn't 7 make any difference for the aggregate numbers I 8 was talking about. 9 Q. Is it your understanding that a switched network 10 enables multiple users to use the same amount of 11 bandwidth at the same time without consuming the 12 amount of bandwidth that's available to other 13 users on the same network? 14 A. I don't think that's quite the right way to 15 characterize it. It has to do with the 16 granularity at which you're sharing things. At 17 some point there's only so much bandwidth. If I 18 switch among users rapidly enough, it may seem to 19 you that you're not sharing, but at the levels 20 where you start saturating the network, that 21 becomes absolutely apparent that the sharing is 22 going on. 23 Q. Does the presence of multiple servers have any 24 impact upon your views in that regard? 91 1 A. Be a little more precise. If I'm trying to get a 2 file and it exists at multiple sources, or simply 3 there's a lot of servers? 4 Q. Either one or both. 5 A. Well, it will have an impact, but the overall 6 estimates remain the same. 7 There are tricks you can do with 8 multiple servers to essentially cut down 9 bottlenecks and server delays. But, again, the 10 kind of estimates I was talking about was 11 independent of that. Simply talking about how 12 much the network itself can handle. 13 I'll certainly grant you that if you 14 generalize from MIT to the national network, 15 there's a lot more complexity, but I don't think 16 it changes the fundamental estimates. 17 Q. Now, is the type of network that you were 18 describing what one might call a hub-type 19 network? 20 A. I don't think so. 21 Q. What's the term for the type of network you were 22 describing? 23 A. At MIT, I believe MIT has what's called a ring. 24 So there's a central thing that lots of things in 92 1 the campus are connected to, and they all fit in 2 the ring. 3 Q. Are you aware if the Napster service depends upon 4 multiple servers? 5 A. The Napster service itself is just a directory. 6 I'm testifying beyond what I know, but my 7 assumption is they simply have a server 8 someplace. I don't know if they have multiple 9 servers or not. 10 Q. Now, the -- what's available to MIT students in 11 the dorm rooms, did you say it's 10 meg -- 12 A. I believe -- 13 Q. -- Ethernet? 14 A. I believe there's a mixture of 10 and a hundred. 15 Q. When you were talking about the value of DeCSS 16 versus not using DeCSS and you mentioned taking 17 the signal at the output of a player? 18 A. Right. I would imagine you can do that. 19 Q. Are you talking about the analog output or 20 digital output or what? 21 A. Well, certainly you could do it with analog 22 output. I would expect you could do it with 23 digital output. But, again, I haven't done it. 24 Q. Uh-huh. Is there any difference in your 93 1 professional experience between the signal 2 quality of a digital signal versus an analog 3 signal, particularly when it's being replicated? 4 A. Well, the answer is that if you make multiple -- 5 digital copies generally are perfect, whereas 6 analog copies, you'll get distortion through 7 multiple copy generations. 8 But remember, there's another -- if 9 this is in reference to what I was talking about 10 making with Shamos's thing, remember that you 11 still have to go through a step of compression, 12 and you are eventually producing a digital copy. 13 If I take -- let's assume I make an 14 output, an analog output coming out of the 15 recorder. So I take that analog output, I 16 digitize it, I compress it, and that whatever 17 degeneration I've gotten from that process, after 18 that I can ship those things around and they can 19 be replicated perfectly. 20 So then you have to ask yourself, in 21 the overall degeneration between, of which most 22 will come from compression, I would guess, how 23 much extra quality loss you would get from going 24 from the recorder initially to analog as opposed 94 1 to doing a perfect copy from decryption, and I 2 was guessing that that wouldn't be noticeable. 3 But, again, I don't know. 4 Q. Gotcha. You testified earlier in response to Mr. 5 Garbus's questions that you regarded notice to 6 the proprietor of a system that's been hacked or 7 breached as the polite thing to do, among other 8 things? 9 A. Right. 10 Q. And you said that it was indicia of good faith? 11 A. (Witness nods.) 12 Q. You have to verbalize your response. 13 A. Yes, that's what I said. 14 Q. Does that mean that the absence of notice to the 15 proprietor would be, in your estimation, indicia 16 of bad faith? 17 A. Not necessarily. It would just be the absence of 18 indicia of good faith. 19 Again, sometimes -- not in your 20 particular hypothetical -- you might know that 21 things would be ignored. 22 Q. What do you mean? 23 MR. GARBUS: It seems to me to speak 24 for itself. 95 1 MR. HART: Well, I'm sure it does, but 2 I want to know what the witness means by that. 3 A. I know an example, and I would rather not give 4 names, of someone who discovered that because of 5 the security system of a new computer, you could 6 remotely turn on the microphone in that computer 7 and just hear everything that was happening in 8 the person's office. And the CEO of this company 9 was someone who usually didn't listen to any 10 kinds of suggestions, and I know the person who 11 got the CEO's attention by handing him a tape 12 recording of everything he said in the office for 13 the past three days. That's an example of, I 14 think, really informing someone that you've had 15 an effect. 16 Q. That was a more dramatic way of informing the CEO 17 in your example, right? 18 A. Right. This wasn't a computer on the market, it 19 was just something they were planning. 20 Q. Now, am I correct in understanding that it's up 21 to you whether or not you will be available for 22 the trial in this case? 23 A. It's more up to Hewlett Packard. It depends on 24 what kinds of meetings get scheduled, then 96 1 depending on what types of meetings, it's more or 2 less difficult for me to be able to appear. 3 MR. HART: I don't think I have 4 anything further. Thank you again. 5 MR. GARBUS: Thank you. 6 (Whereupon at 1:38 p.m., the 7 deposition was adjourned.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 97 1 C E R T I F I C A T E 2 I, HAROLD ABELSON, do hereby certify that I have read the foregoing transcript of my testimony 3 given on July 5, 2000, and I further certify that said transcript is a true and accurate record of 4 said testimony (with the exception of the corrections listed below): 5 Page Line Correction 6 7 8 9 10 11 12 13 14 15 16 Dated at , this day of , 2000. 17 18 HAROLD ABELSON 19 20 SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY 21 22 23 24 98 1 C E R T I F I C A T E 2 3 COMMONWEALTH OF MASSACHUSETTS 4 SUFFOLK, SS. 5 I, Loretta Hennessey, Registered Merit 6 Reporter and Notary Public in and for the 7 Commonwealth of Massachusetts, do hereby certify: 8 That HAROLD ABELSON, the witness whose 9 testimony is hereinbefore set forth, was duly 10 sworn by me and that such testimony is a true and 11 accurate record of my stenotype notes taken in 12 the foregoing matter, to the best of my 13 knowledge, skill and ability. 14 IN WITNESS WHEREOF, I have hereunto set 15 my hand and Notarial Seal this 6th day of July, 16 2000. 17 18 19 20 Loretta Hennessey, RMR 21 Notary Public 22 23 My Commission Expires: 6/10/05 24